Civil Procedure / Professor Burbank / Condensed Feinberg Outline / N. Cheema
SECTION ONE: PHASES OF LAWSUIT
I.
PLEADING – purpose is to give notice to all parties of the nature of the lawsuit, sufficient to allow other
parties to make pre-trial and trial arrangements
a. Stating the claim
i. Complaint: 8(a): 3 requirements for a complaint: short, plain statement of grounds of
jurisdiction; short, plain statement of claim showing pleader is entitled to relief; demand for
relief/judgment sought
1. Sierocinski v. DuPont [blasting cap]
 alleged negligence in the complaint.  argued it was not put on notice of specifics
of ’s claim.
Court: ’s pleading was fine, satisfies 8(a).  can get other info in interrogatories.
2. Conley v. Gibson [Afr. Am. union members]
Court: Complaint should not be dismissed for failure to state claim (12b6) unless it is
beyond doubt that  cannot prove set of facts that would entitle him to relief.
ii. Exceptions: 9(b): in averments of fraud or mistake, state circumstances with particularity;
malice, intent, knowledge, and condition of mind may be inferred generally
iii. If/Unless: “if” clauses for , “unless” clauses for .
iv. Ensuring Factual Basis (sanctions): 11: Sanctions only apply when lawyer continue to
advocate a claim that he knows to be false.  must specifically identify in complaint any
assertions not provable at this point. After one party makes service of motion for sanctions,
other party has 21 days to withdraw, before the motion is filed. Sanctions are for deterrence,
and court may consider nature of the conduct and sanctioned party’s ability to pay.
1. Murphy v. Cuomo [allegation that police is testing paper spray on innocent people]
Court: Orders sanctions because counsel knew there was no factual basis and made
no inquiry into applicability of federal drug statute.
b. Defenses and Objections
i. Categories of Defenses
1. Unrelated to merits
12(b)(1): Lack of subject matter jurisdiction
12(b)(3): Improper venue
12(b)(7): Failure to join a party (under Rule 19)
2. Failure to state claim: 12(b)(6)
3. Denials: 8(b) (challenging truth of “if” clauses)
4. Affirmative Defenses: 8(c) (activating an “unless” clause)
5. Misc. (these are rarely made, and when they are made, they are put in motions before
answer)
12(e): complaint is too vague to reasonably require a response
12(f): redundant, immaterial, impertinent, or scandalous material (motion to strike)
ii. Manner of Presenting Defenses
1. All defenses may be raised in ’s answer – 12(b)
2. The 7 enumerated defenses in 12(b) may be raised by motion before serving answer
on : lack of subject matter jurisdiction, lack of personal jurisdiction, improper
venue, insufficiency of process, insufficiency of service of process, failure to state a
claim, and failure to join a party
3. 12(d): The 12(b) defenses shall be heard at pre-trial hearings, unless court decides
that the issue can be resolved at trial.
iii. Consolidation and Waiver of Defenses and Objections
1. 12(g): After making a motion under 12, party cannot later make a motion based on
12, unless as provided by (h)(2)
2. 12(h)(1): 12(b)(2-5) defenses, if not raised in a pre-answer motion nor in responsive
pleading/amendment of course, then those defenses are lost.
3. 12(h)(2): 12(b)(6-7) defenses may be made at any time up to and including trial (but
not in a pre-answer motion; must therefore be made in answer or at trial). According
to Coleman v. Frierson, 12(b)(6) motion must be made before disposition on the
merits.
4.
5.
c.
d.
e.
II.
12(h)(3): 12(b)(1) defense can be made at any time.
Any affirmative defenses omitted are forever lost. When an answer fails to deny
allegations present in the complaint, those allegations are admitted (Case of Kettle).
6. Res judicata (affirmative defense under 8c) must be raised in ’s answer (Coleman
v. Frierson).
Replying to Defenses
i. Rule 7: Limits pleadings to complaint, answer, reply to counter-claim, answer to cross-claim,
third-party complaint, and third party answer. Nothing further, except that the court can order
a reply to an answer or a third-party answer. (All of this is to keep it efficient, fast).
ii. Rule 8: When there is no responsive pleading, claims that are made in defense are considered
denied and avoided.
1. Ex.:  alleges claims 1, 2, 3, 4.  denies 1 and asserts affirmative defenses 5, 6, 7.
So, 1 is in dispute; 2, 3, 4 are admitted. 5, 6, 7 are either denied or avoided (since,
under Rule 7,  cannot respond). At trial,  can either deny 5, 6, and 7 or avoid
them (avoidance = alleging that other matters vitiate the affirmative defenses).
Counterclaims
i. 13(a): Compulsory Counterclaims – if a claim arises out of the same transaction or occurrence
that is the subject of the opposing party’s claim and does not require for adjudication the
presence of third parties of whom the court cannot acquire jurisdiction, the claim must be
made or it will be lost.
1. Williams v. Robinson [divorce, counterclaim adultery, third party suit for libel]
Court: The third party suit didn’t need to be filed as counterclaim because it involves
different evidence (this is a “same evidence” test). If decided today, this case would
probably go the opposite way. These cases don’t occur often today because parties
want to make sure they file all potentially compulsory counterclaims.
ii. 13(b): Permissive Counterclaims – any claim not arising out of the transaction or occurrence
that is the subject of the opposing party’s claim may nonetheless be stated as a counterclaim.
Amending the Pleadings
i. 15(a): Permits a party to amend pleading once as a matter of course at any time before a
responsive pleading is served. After that, a party can only amend by written consent of the
adverse party or (under 7b) by leave of the court (leave shall be freely given if justice so
requires).
ii. 15(b): Allows for conformance of pleadings to evidence presented at trial in two instances:
(1) When issues outside the pleadings are tried by consent of the parties, issues shall be
treated as if they were raised in pleadings. (2) If evidence is objected to on grounds that it is
outside of pleadings, court may allow party to amend.
iii. 15(c): Amendment of pleading relates back to initial date of pleading when the amendment
arises out of the same transaction or occurrence as the original pleading. Party must apply for
leave.
1. Blair v Durham [scaffolding]:  originally plead negligence in workers’ conduct,
later amended to negligence in construction.  moves to dismiss since amended
complaint was tolled by SOL.
Court: Denies motion for dismissal, since SOL is implicated only if amended
complaint states new cause of action.
DISCLOSURE/DISCOVERY AND PRETRIAL CONFERENCES
a. General Provisions of Disclosure – 26(f) requires meeting of parties to make or arrange for
disclosure. Under 26(a), three types of disclosure are required:
i. 26(a)(1): Routine evidentiary and insurance matters, including (1) witnesses likely to have
discoverable information, (2) documents/things likely to be relevant to disputed facts, (3)
computation of claimed damages, (4) insurance agreements.
ii. 26(a)(2): Identity of experts.
iii. 26(a)(3): List of trial witnesses and list of evidence to be presented at trial.
b. General Provisions of Discovery – 26(a)(5) delineates discovery:
i. Oral Depositions (30) and Written Depositions (31)
ii. Interrogatories (33)
iii. Production of Documents (34)
iv. Permission to enter upon land/property (34)
c.
d.
e.
f.
g.
h.
i.
j.
v. Physical/mental examinations (35)
vi. Requests for Admission (36)
Scope/Limitations of Discovery
i. 26(b)(1): Allows an extremely broad-ranging subject area for discovery: any matter not
privileged which is relevant. Inadmissibility of evidence is not grounds for objective to a
certain line of discovery.
ii. 26(b)(2): Gives court freedom of discretion to place limits on discovery.
iii. 26(c): Party can seek a protective order when justice requires.
iv. 26(e): Party must supplement discovery/disclosure if found to be incomplete or inaccurate.
Depositions upon Oral Examination – Governed by 30.
i. Following rules mirror progression of oral deposition:
1. 30(a): When depositions may be taken.
2. 30(b): Notice, method, and production of documents.
3. 45: Subpoenas.
4. 28(a): Persons before whom depositions may be taken.
5. 30(c): Examination / Cross Examination / Establishing record.
6. 30(d): Schedule and duration – Motion to terminate/limit examination.
7. 30(f): Certification and filing by officer.
8. 30(g): Failure to attend or to serve subpoenas.
ii. If during the deposition a question is asked that may be inadmissible at trial, a party may
object, but it is still required to answer. The objection may then be raised at trial. If an
attorney fails to raise an objection during the deposition, and at trial the opposing side
attempts to enter the material at issue, the objection is lost at trial. In the deposition, the party
should answer any question unless it is thought to violate privilege or some other fundamental
problem.
1. Umphres v. Shell Oil: During deposition, ’s attorney advised  not to answer ’s
question as to what his conspiracy theory was, since the question called for a legal
theory. Court:  is entitled to ask and  should answer if he knows.
Depositions upon Written Questions – Governed by 31. This is a cheaper method, but attorneys have
difficulty framing questions without knowing party’s answers to prior questions.
Interrogatories – Governed by 33.
i. 33(c): Party can ask interrogatory concerning anything except conclusions of law (O’Brien v.
IBEW).
ii. Each interrogatory should be answered unless objected to. Objections can be raised by a
motion to court or a filing of objection signed by attorney.
iii. 33(d): Allows party to produce records instead of answering the question.
iv. 37(a): Can be used to compel answer. 37(d): Imposes sanction for no answer.
Requests for Admission – Governed by 36. One party requests other party to admit truth of matter or
genuineness of documents. Party cannot use “insufficient information” as excuse for denying request
unless party has made legitimate effort to find information. 37(c): To discourage capricious denials
Production of Documents – 34 allows entry upon land of party. 34(c) allows for independent action
against non-party to secure access to documents (but not entry upon land) through 45 (subpoena rule).
Physical and Mental Examinations – Governed by 35. The motion requires showing of controversy
and good cause (this is the only discovery device that requires a showing of good cause). In most
cases, physical/mental examinations do not apply to , since  did not put his medical condition in
controversy.
Use of Disclosure/Discovery at Trial – Governed by 32.
i. Usually a deposition is ignored at trial (to avoid problems of hearsay) unless party elects to
admit it. 32(a) provides the exceptions where depositions can be used at trial:
1. to impeach testimony of deponent witness.
2. when given by officer or director designated under 30(b)(6) or 31(a) to testify on
behalf of corporation.
3. testimony of dead witness.
4. testimony if witness is more than 100 miles away.
5. if a witness is unable to be procured by subpoena.
ii. 32(d): Errors and irregularities in depositions
1. Error in notice – objection is waived for further use unless a written objection is
promptly served.
Error in competency, relevancy, or materiality of testimony – waived only if
objected to at deposition.
Sanctions for Failure to Make or Cooperate in Discovery – 37 enforces the duties in 26(a), 30, 31,
33, and 34. 37 is like a Rule 11 for disclosure and discovery.
i. 37(a): compels disclosure and discovery.
ii. 37(b): enumerates sanctions. Burden is on the moving party to confer with recalcitrant party,
go to court for directive order, go to court to get sanction.
iii. 37(c): consequences for failure to disclose (including through supplementing of prior
disclosures), misleading disclosure, and failure to admit.
iv. 37(d): consequences for failure to attend deposition.
Pretrial Conferences – Governed by 16. This could be termed “judicial discovery.”
i. 16(b)(4): Orders governing time limits for disclosure and discovery.
ii. 16(c): Subjects for consideration at pretrial conferences:
1. 16(c)(1): Elimination of frivolous claims/defenses.
2. 16(c)(9): Assist in resolving dispute / settlement.
3. 16(c)(16): Catch-all clause to allow action to “facilitate the just, speedy, and
inexpensive disposition of the action.”
4. End of 16(c): Compel parties to be present at conferences re: settlement.
iii. Identiseal: Judge may not coerce discovery (may have been overruled by amendments to 16).
iv. Shuber v. S.S. Kresge:  attempted to present witness and alternative theory of ’s liability
that had not been discussed at pre-trial conference. Court held that pre-trial agreements bound
the parties to the direction of the litigation, and so it refused to admit the witness’s testimony.
2.
k.
l.
III.
MAGISTRATE JUDGES AND MASTERS
a. Magistrates (72-75, 28 USC § 636)
i. Can be appointed by district judge to hear non-dispositive matters (e.g. discovery issues)
ii. Can conduct hearings and make findings of fact (these findings are subject to DJ’s approval)
iii. In some cases, can be appointed by clerk to hear an entire case.
iv. Benefits: Special expertise can make them better arbiters on certain issues. Also cut down on
DJ’s workload and thereby make the system more efficient.
v. Costs: Could also decrease efficiency, since their findings are subject to DJ’s approval and
therefore magistrate hearings may increase time spent on certain segments of litigation.
b. Masters – 53 suggests that masters are used at trial. However, most masters get involved at pre-trial
stage (typically given special assignments by judge to ascertain facts). Also may serve monitoring
function (such as in prison civil rights issues). Burbank: 53 is in dire need of amendment.
IV.
DEVICES FOR TERMINATING LITIGATION BEFORE TRIAL
a. Motion for Judgment on the Pleadings – Governed by 12(c).
i. This is essentially a delayed 12(b)(6) motion (with the exception that it can be made by either
party) that comes at the close of the pleading stage and is judged solely on matters of law.
ii. In weighing the motion, court will consider all disputed facts to the favor of the non-moving
party.
iii. Coordination with 12(f) [motion to strike inefficiencies]: If  has raised insufficient defenses
 may to strike under 12(f). Once all defenses are displaced, and there are no more factual
issues,  may move under 12(c) for judgment on the pleadings.
iv. The motion must come between pleadings and any other part of the litigation. If any
information outside of pleadings is submitted to the court (e.g. from discovery), the motion
will be considered a request for summary judgment (it may be to party’s advantage to avoid
summary judgment because of requirement to submit more detailed documents/affidavits.
b. Summary Judgment – Governed by 56.
i. Motion must only concern pleadings and discovery and allege that there are no material facts
in dispute.
ii. 56(c): Motion can be supported by affidavits based on personal knowledge concerning
evidence that would be admissible in court.
1. Celotex v. Catrett [asbestos]:  filed motion for summary judgment arguing that 
failed to provide evidence of exposure to ’s asbestos, but  produced three
documents and claimed they demonstrated a material factual dispute. Dist. Ct.
granted SM, while App. Ct. found that  did not produce evidence to negate ’s
claims. Supreme Court held that 56(c) does not obligate a party to provide affidavits.
iii. 56(f): Court can grant party permission to seek more information (e.g. to depose an affiant).
iv. Mixed questions of law/fact: If there are no disputes of fact, but there remain questions of
how to apply law to those facts, the case should probably go to the jury.
1. American Airlines v. Ulen:  moved for summary judgment, but  airline amended
its answers to the complaint to allege that the crash was subject to Warsaw
Convention (which would severely limit damages). Court granted SM but conducted
trial on issues of “willful misconduct” as related to damages under the Warsaw
Convention. Critique: Bad decision, because they ended up litigating the same issues
anyway, so the court shouldn’t have granted SM in the first place.
v. 56(d) [case not fully adjudicated on motion]: Courts have been reluctant to find that this rule
allows for partial summary judgment. However, there has been recent movement to provide
this ability under 54(b) [Judgment upon multiple claims or involving multiple parties]
V.
PROVISIONAL REMEDIES
a. Seizure of Person or Property – Governed by 64.
i. Where the  is seeking damages, this rule grants  at the beginning of the lawsuit several
means to guarantee an potential award at the end of the lawsuit:
1. Garnishment – Debt owed by third party to  is made subject to ’s claim.
2. Attachment – Seizure of ’s property at beginning of litigation to provide security
for judgment later.
3. Replevin – Allows  at any time before the judgment to take the disputed property
from the  and hold it pending the outcome of the litigation.
4. Sequestration – General term describing attachment of property prior to a lawsuit.
ii. 64 provides that the above methods be governed by state law (because the Rules Enabling Act
forbids infringement of substantive rights and there is a legitimate concern that these remedies
may do just that).
b. Injunctions – Governed by 65.
i. 65(b): Temporary Restraining Order
1. Issued in cases of extreme emergency.
2. May be issued without notice.
3. Party seeking TRO must promptly apply for a preliminary injunction.
4. Several precautions, including requirement for hearing at the earliest possible time
and requirement that moving party give security, to ensure accuracy and process
values.
ii. 65(a): Preliminary Injunction
1. Requires notice.
2. Decision to grant PI involves four factors (compare with Posner’s test):
a. Whether  will be irreparably harmed.
b. Whether harm to  if PI not granted will exceed harm to  if PI granted.
c. Whether  is reasonably likely to prevail at trial.
d. Whether public interest will be affected.
3. American Hospital Supply v. Hospital Products: Posner (borrowing from Learned
Hand), sets out a mathematical formula to determine if PI should be granted:
P x H(P) > (1-P) x H(D)
In other words, grant PI if and only if harm to  if PI is not granted, multiplied by
’s probability of winning at trial, exceeds harm to  if PI is granted, multiplied by
the ’s probability of winning at trial. Burbank says that, even if you dislike
Law&Econ, this is a helpful guide for analyzing necessity of an injunction.
4. 65(a)(2): Allows for consolidation of preliminary injunction hearing with trial on the
merits.
VI.
TRIAL
a. Jury – Governed by 38, 39, 47, 48
i. Right to Trial
7th Amendment: Guarantees right to jury trial in civil litigation
38(b): Requires timely demand for jury trial; if not made, 38(d) stipulates that right
to jury trial will be waived
3. Jury’s role is to (1) find facts and (2) apply law to those facts
ii. Jury Characteristics
1. 48: Requires juries to be between 6 and 12 people
a. Colgrove v. Battin:  claimed MT provision for juries of 6 people in civil
trials unconstitutional. Drawing on Williams v. Florida (a criminal case in
which the constitutionality of jury of 6 was upheld), Court held that 7th
Amendment concerns substance of right to jury trial instead of governing
size of jury, so it upheld the provision, rejecting notion that a jury’s
reliability is function of its size (this is dumb – court ignored research
suggesting that jury performance is a function of size).
iii. Voir Dire – 47 allows judges to control selection of jurors (there is a growing movement to
shift right of control to lawyers).
iv. Questions of Unanimity
1. Johnson v. Louisiana – non-unanimous verdict by 12-person jury is constitutional
acceptable (the requirement is a “substantial majority”).
2. Burch v. Louisiana – 6-person jury requires a unanimous verdict.
Order and Method of Proof – Governed by 50(a), 52(c)
i. Three Relevant Burdens: Burden of Pleading, Burden of Production, Burden of Persuasion
1. Burden of Pleading
2. Burden of Production – this is the burden to produce evidence.
a. Almost always falls on party with burden of pleading, but it may shift when
opposing party produces enough evidence to succeed on its own directed
verdict.
b. Party has burden to produce enough evidence to withstand JML
3. Burden of Persuasion – this is the burden to persuade jury / fact finder
ii. Judgment as a Matter of Law – 50(a)
1. Can be made by either party at any time of the trial, but is usually made at the close
of each party’s case ( moves at close ’s case;  moves at close of ’s case).
2. Motion will be granted if there is “no legally sufficient evidentiary basis for a
reasonable jury to find for the opposing party.
iii. Judgment on Partial Findings – 52(c)
1. This is JML for cases without a jury, and it requires a higher standard.
2. If a party has been fully heard on an issue, and the court finds against the party on
that issue, and the party’s action “cannot reasonably under the controlling law be
maintained or defeated without a favorable that issue,” judge can dismiss the case.
iv. Rebuttal / Rejoinder
1.  may rebut at close of ’s case, but rebuttal is limited to evidence that meets new
evidence put in by . So  may not reiterate evidence it already presented.
2.  can do the same – called a rejoinder.
Federal Rules of Evidence
i. Adopted by statute.
ii. Types of Evidence
1. Opinion Evidence – Expert Testimony (FRE 700s) – Generally, a lay witness cannot
give testimony regarding information he is not qualified to know.
2. Real Evidence – a person/thing shown to jury for use of juror’s own powers of direct
observation.
3. Demonstrative Evidence – charts, models, diagrams.
4. Judicial Notice – Judge dispenses with necessity of proof to find an assertion
indisputably true (e.g. December 18, 2003 was a Thursday).
iii. Relevance (FRE 700s)
1. Generally, irrelevant evidence is inadmissible, and relevant evidence is admissible
(note that relevance is required but not sufficient in itself to create admissibility).
2. Distinguish relevance from “sufficiency” and “weight” (weight of evidence depends
on number of successive inferences that must be made to connect the evidence with
the proposition to be proved.
1.
2.
b.
c.
3.
d.
e.
f.
Piece of evidence may be admitted conditionally, meaning that a court will later
strike it if it proves to be irrelevant.
iv. Exclusion of Relevant Evidence – Three categories of rules will render relevant evidence
inadmissible – Competence, Privilege, and Hearsay.
1. Competence (FRE 600s)
a. Common Law had a variety of provisions as to who could not testify,
including spouse, person with prior felony conviction, atheist, etc.
b. In FRE, much fewer categories of competence.
c. FRE 601: In diversity suits (i.e. where state law supplies the rule of
decision), state law will also determine the rule of competency.
d. Some examples of FRE incompetence: FRE 602 – lack of personal
knowledge, FRE 605 – presiding judge, FRE 606 - juror
2. Privilege – where witness does not have to testify on subject of communication
(between people with certain relationships) or on specific topics (e.g. trade secrets).
a. FRE 501 – As in FRE 601 above, state law will determine rules of privilege
b. Examples: attorney-client, doctor-patient, spouses, etc.
3. Hearsay (FRE 800s)
a. FRE 801 defines hearsay: Statement. Declarant. Hearsay is a statement,
other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.
b. Some exceptions (FRE 803 and FRE 804 have 29 total; also see FRE
807): dying declaration, admissions, res gestae (response to a startling
event), etc.
v. Miscellaneous Evidence Rules
1. FRE 1001(4): Best Evidence Rule – Evidence should be the best available (e.g.
original instead of photocopy).
2. FRE 403: Remote, Confusing, Prejudicial Evidence – Judge has discretion in
determining whether the probative value of a particular evidence outweighs the fact
that it may confuse or prejudice the jury (e.g. don’t need bloody clothes to show that
the victim is dead).
vi. Objections to Evidence – When counsel hears evidence that it believes to be inadmissible,
counsel should object specifically and immediately (purpose: keep the evidence out and lay
foundation for later appeal).
vii. Combating Admissible Evidence – Impeaching/Discrediting the Witness – Either counsel can
try impeach or discredit the witness, regardless of who called the witness – FRE 607 and
FRE 801(d)(1)(a).
viii. Scope of Cross Examination – Can only deal with matters covered in direct examination
(FRE 611). Leading during cross examination is allowed. Cross examination is used to show
the witness’s incompetence.
Motions at Close of Evidence – It is possible that, though a party’s motion for SM was denied, its
motion for JML will be granted (this happens when issues of material fact existed at the end of
discovery, but at the close of evidence, the non-moving party has not met burdens of production or
persuasion.
Submission to Jury and Return of Verdict – 49, 51, 52
i. Jury Instructions – Parties may request, but judge will decide. Instructions advise jury of:
1. Issues in dispute.
2. Who has burden of proof and what is the necessary degree of persuasion.
3. Substantive
4. Summary/analysis of admitted evidence.
ii. Three types of possible verdicts: general, special, general with written interrogatories
1. General – jury will find for  or ; also may render damages figure
2. Special – jury answers specific questions about narrow issues.
3. General with written interrogatories – general verdict with a few issues of fact
determined in a special manner
iii. Appeal rights re: jury instructions – Parties do not have to request specific instructions in
order to gain the right of appeal; instead, they must file a timely objection to the instructions.
Motions After Verdict – 50(b), 59
i. RJML – 50(b) – Renewed Motion for Judgment as a Matter of Law – Party may move for
RJML only if it previously made a JML. It must move for RJML within 10 days after the
judgment is entered.
ii. Motion for New Trial – 59 – Also a 10-day motion, will be granted on the following grounds:
1. Against weight of evidence.
2. Jury failed to follow judge’s instructions.
3. Judge’s instructions were inadequate.
4. New evidence.
iii. Difference in standard between R/JML and MNT: In R/JML, judge considers evidence in
light favorable to non-moving party. In MNT, if judge feels jury did not weigh the evidence
correctly, judge can rule for a new trial based on the fact that the verdict was against the
weight of the evidence.
iv. Differences in rules governing appeals after R/JML and MNT: R/JML – appeal due
immediately. MNT – appeal occurs after new trial.
v. Motions for RJML and MNT may be filed simultaneously. If the judge grants RJML, he may
conditionally grant MNT. The new trial will begin, but if on appeal RJML was ruled to be
incorrect, the jury’s original verdict will be reinstated.
vi. Harmless Error – 61: The court may disregard an error that does not affect the substantial
rights of the parties.
VII.
JUDGMENT
a. Entry of Judgment – if simple judgment (jury returns verdict/damages), clerk will enter; if more
complex, judge will review.
b. Kinds of Relief Afforded by Judgment – 54(c): Every final judgment shall grant relief to which party
in whose favor it is rendered is entitled, even if the party has not demanded such relief in its pleadings.
i. Common Law Judgments/Damages – compensatory, nominal (represents breach of right
only), punitive, restoration of property.
ii. Equity – decree ordering party to do or refrain from doing something (specific performance,
injunction).
iii. Costs – § 1920: Usually limited to costs of conducting litigation in court (attorneys’ fees not
included).
iv. Declaratory Judgment – § 2201 provides that judgment shall have force of a final judgment or
decree. § 2202 provides that further relief may be granted based on declaratory judgment. 57
states that the existence of another adequate remedy does not preclude an action for
declaratory judgment.
c. Enforcement of Judgment
i. Equity – if  disobeys judgment,  can be imprisoned or fined conditionally until coerced into
compliance.
ii. Law – Judgment is not an order to the ;  must take action to enforce the judgment:
1.  must identify and locate ’s assets (with discovery proceedings of 69(a))
2. Remedies for fulfilling writ of execution are governed by state law (like 64 for
attachment/garnishment) so that substantive rights not abridged in violation of REA.
69(a) did not create general power to enforce judgment, must comply with state law.
3. Writ of execution will be addressed to district’s federal marshal, who will levy on or
seize ’s nonexempt property as is necessary to pay the judgment.
4. If execution is not successful,  may be brought before court for supplementary
proceedings (depending on state law). Court can order  to turn over property, and if
 does not do so,  may be held in contempt.
5. 28 U.S.C. is a statute on registration of judgments, and it allows  to go to district
court in another state to place lien on ’s property there (until 1948, judgment could
only be enforced in state where district court sat).
VIII.
APPELLATE REVIEW
a. § 1291
i. Right of appeal – every litigant has a right of appeal from district court decisions.
ii. Final decision rule – Appeal must be from a final decision of the district court.
Dilly v. S.S. Kresge –  appealed DC’s denial of ’s motion to amend judgment
after DC granted SM to  but before DC determined damages.. 4th Circ. ruled that a
final decision is one that “ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.”
Exceptions to Final Decision Rule
i. § 1292(a) provides categorical exceptions where interlocutory appeals may be filed (orders
affecting injunctions and orders involving receivers or those directing sale of property).
ii. § 1292(b) allows interlocutory appeals on a case-by-case basis.
1. Gillespie v. U.S. Steel: Considerations for whether an interlocutory appeal should be
granted depends on (1) inconvenience/costs of piecemeal review and (2) danger of
denying justice by delay.
iii. 54(b) allows judge in multi-claim lawsuit to declare that a decision on a particular issue is
final. That issue may therefore be appealed.
Collateral Order Doctrine – an interpretation of § 1291 that allows interlocutory appeals of trial court
decisions that are collateral to (i.e. separate from) the core cause of action. Firestone Tire v. Risjord
provides three-part test for determining if issue can be appealed under collateral order doctrine:
i. Order that is being appealed must have conclusively determined the disputed question.
ii. Appeal must seek to resolve an important issue completely separate from merits of the action.
iii. Issue would be effectively unreviewable from a final judgment.
Stay of Proceedings to Enforce Judgment Pending Appeal
i. 62(a) provides for automatic 10-day stay on enforcement of damages judgment.
ii. 62(b) provides for stay of enforcement until court reaches a disposition on all post-judgment
motions.
iii. No automatic stay for equity judgment of injunction, but court may use discretion and provide
for one (and court may require  to provide bond).
iv. 62(d) provides that appellant may give bond to obtain stay of damages judgment.
v. Long v. Robinson provides four-pronged test to determine if stay should be granted:
1. Appellant’s likelihood of succeeding on merits of appeal.
2. Likelihood that party will suffer irreparable injury if stay is denied.
3. Other parties will not be substantially harmed.
4. Public interest will be served by granting stay.
Review by Supreme Court
i. § 1254 provides that review by SC may be obtained by:
1. Certification – Court of Appeals asking for instructions on particular issue (very
rare).
2. Certiorari – will be granted for “compelling reasons” (usually a dispute in the
circuits) and requires vote of 4 out of 9 justices.
ii. Review by SC is almost entirely discretionary with little concern for error correction.
iii. Review can be granted any time SC wants; does not matter if final decision has been entered.
1.
b.
c.
d.
e.
IX.
SUBJECT MATTER JURISDICTION (Article 3, §§ 1331, 1332, 1337, 1338, 1343)
a. Establishment of Jurisdiction
i. Judicial Power of the States: States are free to exercise jurisdiction over any issue unless
Congress expressly provides that they may not (exclusive federal jurisdiction, such as actions
under federal anti-trust laws and bankruptcy proceedings). Most federal court jurisdiction is
therefore concurrent with state courts.
ii. Judicial Power of the U.S.: SC is the only federal court created by Constitution. Outer
boundaries of federal jurisdiction are set by Article 3, specifically § 2 ¶ 1, which provides for
jurisdiction over “cases” and “controversies.” Since the Constitution only sets the outer limits
of federal jurisdiction, first look to statutory authority for jurisdiction.
b. Federal Question Jurisdiction - § 1331
i. § 1331 states that “district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.
ii. Limits of Federal Questions: Louisville & Nashville Railroad v. Mottley [railroad passes]
held that the federal question must be set out in the complaint ( cannot select a forum solely
because  expects that  will raise a federal issue; in this case the  expected the  to bring
Interstate Commerce Act into question).
c.
d.
e.
iii. Declaratory Judgment of Federal Question: § 2201 (Declaratory Judgment Act) does not
allow for expansion of court’s jurisdiction, so must look at how lawsuit would be brought.
iv. § 1252 gives SC authority to hear case calling any federal statute into question irrespective of
who first brought the federal statute into the case (so in Mottley II, after  brought action in
state court and then the federal statute came into question, case ultimately reached the SC).
v. Federal Claim Invalid on the Merits: If  asserts a claim purporting to recover under federal
law, it should not be thrown out of court unless two exceptions are met: (1) claim is clearly
immaterial and made solely for the purpose of obtaining jurisdiction, or (2) claim is wholly
insubstantial and frivolous.
1. This was the issue in Bell v. Hood, where there was a claim based on state law and
another claim based on U.S. constitution. SC held that the case withstands a 12(b)(1)
motion to dismiss on lack of subject matter jurisdiction (withstanding a 12b6 motion,
however, is a different issue which may only be considered after the jurisdictional
question). An underlying concern in that case was the supplemental claim problem:
if court dismissed the federal claim on 12(b)(6), it could still hear the state claim,
whereas if it dismissed the case for want of jurisdiction, it would not be able to hear
the state claim, and that claim would probably then be precluded from state court.
Diversity of Citizenship Jurisdiction
i. § 1332 sets out the requirements:
1. Matter in controversy is above $75,000.
2. Litigation is between:
a. Citizens of different states.
b. Citizens of a state and citizens/subjects of foreign state.
c. Citizens of different states and in which citizens/subjects of foreign state are
additional parties.
d.  is a foreign state and s are citizens of a state.
3. Citizenship is contemplated at commencement of litigation (doesn’t matter if a party
moves to a different state after commencement).
ii. Atypical citizens: For diversity, a person must be U.S. citizen or legal resident. Refugees are
not citizens of state or foreign state; undocumented workers are citizens of a foreign state).
iii. Domicile
1. Domicile test: presence and intention to stay in the state (or absence of intention to
leave). Intention is inferred from words and actions such as establishing residence,
registering to vote, participating in community activities, etc. (the test is from Baker
v. Keck, where it was clear that  moved from IL to OK to establish diversity
against , but court applied the test and found  did have domicile in OK).
2. Domicile for students/wives: Students – unemancipated minors retain domicile of
their parents, but emancipated minors have a choice. Wives – under CL, they had
domicile of their husbands, but now they have a choice.
3. Domicile of corporations: §1332(c)(1) says that domicile will be determined by
either state of incorporation or principle place of business. Courts tend to give more
weight to day-to-day activities than “nerve centers” (Kelly v. Egan: nerve center in
NY, day-to-day activities in PA  domicile in PA; Egan v. American Airlines: dayto-day activities dispersed throughout several states  court chose nerve center as
domicile).
4. Unincorporated associations (e.g. partnerships, trade associations, labor unions):
Deemed a citizen of each and every state in which one of its members is a citizen.
Removal Jurisdiction of the Federal Courts (§1441)
i.  (but not ) can remove to federal court only if there is original jurisdiction (i.e. federal
question or diversity of citizenship). Case is removed to district court for the district in which
the state court sits. If out-of-state  sues  in state court in ’s state,  cannot remove on
diversity.
ii. Exceptions: FELA (railroad workers) and Jones Act (seamen) provide that, when  worker
sues  employer,  may not remove.
iii. Counterclaims: When the counterclaim is compulsory, some courts look at the amount in
controversy holistically, while other courts view the amount solely as defined by ’s claim.
When  files counterclaim,  cannot be considered a  and remove.
Collateral Attack
f.
i. Definition:  brings suit on judgment in another state and  attacks the prior judgment to
prevents its use.
ii. If  can establish that prior judgment did not have competency, second court will likely refuse
to enforce that judgment. However, if  raised question of competency in the prior action, res
judicata will prevent  from raising it again with a collateral attack.
Supreme Court Review of State Actions: §1257 – Regardless of whether federal court had original
jurisdiction, SC may hear a case brought in state courts if: final judgment is from state’s court of last
resort, or the judgment calls into question a federal statute, treaty, or constitution.
X.
SUPPLEMENTAL JURISDICTION
a. Pendant – when  brings claim arising under federal law, court may also consider ’s claims brought
under state law. The test from United Mine Workers v. Gibb is whether the two claims “derived from a
common nucleus of fact.” Court also suggested a consideration of fairness to litigants (i.e. state issue
should not be the predominating claim).
b. Ancillary – Court may assert jurisdiction over claims made by other parties (usually brought in
through joinder) even when those claims may not have been sufficient for federal jurisdiction on their
own.
c. Statutory Authority
i. §1367(a): “district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of additional parties”
(thus overturning the ruling in Finley that there could be no pendant party jurisdiction).
ii. §1367(b): places limits on (a) by forbidding jurisdiction over claims by s made under Rules
14, 19, 20 or 24 when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of §1332 (this is an attempt to codify court’s
desire in Kroger to prevent  from trying to skirt the diversity requirements)
iii. §1367(c): provides four provisions where court may decline to exercise supp. jurisdiction:
1. claim arises from a novel or complex issue of state law.
2. claim substantially predominates over claim or claims over which district court has
original jurisdiction.
3. district court has dismissed all claims over which it has original jurisdiction.
4. in exceptional circumstances, there are other compelling reasons for declining
jurisdiction (court in Executive Software emphasizes that this is an exception, not a
rule, and a court must explain why it is declining to exercise supp. jurisdiction.
XI.
VENUE AND SERVICE OF PROCESS
a. Venue – concerns allocation of business in federal courts (whereas subject matter jurisdiction allocates
business between federal and state courts)
i. Considerations: convenience to , , and witnesses; type of case involved
ii. Specifics
1. §1391(a) [diversity] and §1391(b) [federal question] provide basically same
requirements:
a. judicial district where any defendant resides if they all reside in same state.
b. judicial district in which substantial part of events or omissions giving rise
to claim occurred (or substantial part of property involved).
c. if no other district in which case may be brought, may bring it in any district
in which  is subject to personal jurisdiction.
2. §1391(c) [corporations] requirements:
a.  corporation shall be deemed to reside in judicial district where it is
subject to personal jurisdiction at time the action is commenced (note that
this is different from the domicile requirements of incorporation and
principal place of business).
b. if more than one district in the state, statute constructively turns districts
into states for determining appropriate jurisdiction.
c. unincorporated associations analogized to corporations for venue purposes.
Alien  can be sued in any district.
Removal exception: case that is removed must be brought in the district court for the
district in which the state court resided.
Service of Process – Governed by 3 and 4. Structure of 4 is as follows:
i. 4(e)–(j) describe manner of service.
1. 4(e)(2): service shall be made by delivering copy of summons and complaint to
defendant personally, or by leaving these papers at his dwelling or usual place of
abode with some person of suitable age and discretion.
2. 4(e)(1) allows rules of state to govern.
ii. 4(d) allows for waiver of service – mail notice requesting waiver to , and if  refuses,  may
have to pay for service (an expensive procedure designed to encourage waiver)
iii. 4(c) regulates circumstances of service (i.e. territorial limits of service) – typically adopt state
law (e.g. long arm statute, bulge provision [4(k)(1)(b)] for service in metropolitan areas on
opposite side of state lines).
iv. In general, federal government can assert very broad powers to adjudicate, but the choice has
been made to not exercise that power and instead leave it up to state law.
Transfer of Cases
i. §1404 allows for transfer because of inconveniences to either party. However, transfer must
be within limits of venue and personal jurisdiction (and for that reason, transfer is not very
useful).
ii. §1406 provides that if a case was filed in the wrong court, it may be transferred in the interest
of justice.
iii. When case is transferred, it takes on the law of the state from which it was transferred.
3.
4.
b.
c.
XII.
COMPLEX LITIGATION: MULTIPLE PARTIES/CLAIMS
a. Jurisdiction and Venue – create problems in multi-party jurisdiction.
i. Diversity: diversity of citizenship requires complete diversity (i.e. no two parties can be
citizens of same state).
ii. Removal: Under §1441, all s must join in notice of removal.
iii. Venue: §1391 refers to all s, so all s must be accommodated by venue provisions.
b. Permissive Joinder of Parties – governed by 20: Parties may join as plaintiffs if (1) rights grow out of
same transaction and (2) some question of law/fact common to all will arise. The rule generally gives
s a great deal of freedom in controlling the lawsuit (can join s as well).
c. Compulsory Joinder – 19 places limits on ’s control of lawsuit.
i. 19(a): persons sustaining certain relationships to action should be joined as parties if feasible.
ii. 19(b) gives court option of either proceeding without “necessary” parties or dismissing case.
iii. Steps of Analysis under 19:
1. Whether person is necessary party under 19(a).
2. Court will try to join but may be unable to because of jurisdiction/venue limitations.
3. If party cannot be joined, court decides whether to dismiss case. If case is dismissed,
that party is “indispensable.”
d. Interpleader – governed by 22 and §1335. The process allows potential  to bring in two s who may
sue for debt owed to one of them (so as to prevent double recovery in two separate lawsuits against ).
Two types of interpleader – under either 22 or §1335.
i. Diversity jurisdiction – may use either 22 or §1335.
ii. Federal question – must use 22.
iii. Requirements for rule interpleader (22):
1. Must meet amount in controversy under §1335.
2. Complete diversity between parties (i.e. between  and at least one of the s).
iv. Requirements for statutory interpleader (§1335):
1. Only minimal diversity needed, but at least two of the claimants (prospective s)
must be from different states.
2. Amount in controversy = $500.
3. Allows for nationwide service of process under 4(k)(1)(c).
e. Impleader (third-party) – governed by 14. Allows  to bring in another party who may be liable to 
for ’s liability to .  becomes “third-party ,” and new party becomes “third-party .”
f.
g.
h.
Cross-Claims – 13(g) permits (but does not compel) co-parties (i.e. parties on same side of v.) to assert
claims against each other that arise out of the same action.
Class Actions
i. Structure of Rule
1. 23(a) – four requirements:
a. Numerosity – Class size must be too large for individual claims.
b. Commonality – Common questions of law or fact.
c. Adequacy – Claims or defenses of class representative must be adequate to
represent the class.
d. Typicality – Representatives will fairly protect interests of class.
2. 23(b) – types of classes (differ in terms of notice and opt-out)
a. 23(b)(1) – joined class because of risk involved in adequate adjudications:
no requirement of notice.
b. 23(b)(2) –  has acted or refused to act on grounds applicable to whole
class (desegregation, children’s welfare, etc.): no requirement of notice.
c. 23(b)(3) – class action is superior to individual actions: notice is required
and members have chance to opt-out.
ii. 23(d) describes powers that class representative has over the class.
iii. 23(e) concerns settlement of the class action.
iv. 23.1 – Derivative Actions by Shareholders – When one shareholder sues on behalf of all
shareholders to get company to do or stop doing something, the action becomes class action.
v. 23.2 – Actions relating to unincorporated associations – Class action can be used against
unincorporated associations by naming a few members of the association as representatives
(helps to ease diversity/venue problems).
Intervention – 24 provides that a person (with an interest in litigation) who is waiting to be joined can
intervene on his own initiative.
i. 24(a) provides for intervention when (1) rights conferred by statute or (2) person claims
interest in litigation and adjudication without that person will affect that person’s rights.
ii. 24(b) allows for permissive intervention (echoing 20).
iii. 24(c) describes procedure of intervention.
iv. Class Actions – party may intervene if he feels representative is not performing adequately.
SECTION TWO: GOVERNING LAW IN FEDERAL COURT
I.
INTRODUCTION: THE EARLY PROBLEMS
a. The underlying problem: Supreme Court has been imprecise in naming source of law-making power,
and the sources of rules are unclear in themselves. Two conflicting propositions of constitutional law:
(1) Just as federal courts are courts of limited jurisdiction, so is the federal government a government
of limited power (10th Amendment). (2) Within its sphere, federal law reigns supreme (Article VI –
Supremacy Clause).
b. Swift v. Tyson (1842):
i. Issue: On the issue of whether the unpaid debt constituted valid consideration so as to insulate
Swift from Tyson’s defense, NY common law and general federal common law differed (NY
CL said “no,” while general federal CL said “yes.”). So the question was which law to apply?
The Rules of Decision Act (§1652) states: “The laws of the several states, except where the
Constitution or the treaties of the U.S. or acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil actions in the courts of the U.S., in cases where they
apply.”
ii. Holding: The court held that the term “laws” here does not include state common law (and
instead only includes things like state statutes). One motivation was to create uniformity by
having all federal courts base their decisions on federal judge-found general common law
instead of the state common law of each of their particular states (this motivation failed to be
realized).
II.
ERIE REGIME
Erie Railroad v. Tompkins (1938)
a. Issue: Should NY federal court apply PA common law or decide the matter as an issue of general
common law?
b. Holding: The court overturned Swift v. Tyson by holding that the Rules of Decision Act should be read
to include state common law and that there is no such thing as general federal common law.
c. Constitutional Holding: The court did not find the Swift v. Tyson holding to be unconstitutional per se,
but it did find later courts’ applications of the Swift v. Tyson holding to be unconstitutional. In those
cases, courts had created general federal common law in areas where Congress had no power to
legislate (in Swift v. Tyson, the area was interstate commerce, where Congress does have power to
legislate). Simply put, the constitutional holding of Erie is that federal courts have no greater power
than does Congress to make law.
d. Problems: The decision makes no distinction between substance and procedure. The decision does not
explain how state law should be determined, or specifically for this case which law should govern.
III.
BURDEN OF PROOF – Generally, determinations on burden of proof are substantive. There is no federal
statute on this matter, and though Congress has power to legislate on it, it has chosen not to. Therefore,
federal courts must apply state law regarding determinations on burden of proof.
IV.
CHOICE OF LAW
a. Klaxon v. Stentor (1941): Federal court should use the choice of law rules of the state in which it sits.
b. Guaranty Trust v. York (1945): In choosing whether to use state or federal law, use an outcome
determinative test: If applying federal law to a case produces a different outcome than would applying
state law, state law should govern.
V.
FEDERAL DETERMINATION OF STATE LAW: What is to be done when state law governs but there
is no clear state law on the point in issue?
a. Abstention – Federal court, in deference to state courts’ interests, declines to exercise federal
jurisdiction. If an important, unsettled state question arises, federal court could stay or dismiss the
federal diversity case and allow parties to pursue coercive or declaratory remedy in state court.
b. Certification – Send the unsettled question of state law directly to highest court of the state for its
opinion on the issue.
c.
Bernhard v. Polygraphic (1956): This was the low-point in federal courts’ deference to state law.
They artificially read a federal arbitration statute in a manner that would allow them to avoid a conflict
between the federal statute and state law.
VI.
STATE DETERMINATION OF STATE LAW
a. Byrd v. Blue Ridge (1958): Slight retreat from outcome-determinative test. Court concluded that there
may be countervailing federal policies that justify federal law governing in place of state law. Here, the
court weighed the federal policy of preserving judge/jury relationship against the federal policy of
preventing different outcomes in federal court as opposed to state court, and the court went with the
former.
b. Hanna v. Plumer (1965)
i. Facts:  made service of process pursuant to 4(d)(1) [now 4(d)(2)] with  executor’s wife,
but state law required service of process to  executor himself. District court granted ’s
motion for summary judgment, reasoning that state law should apply. Went up on appeal.
ii. Dictum: The outcome-determinative test should be considered in light of the twin aims of
Erie: (a) preventing forum shopping, (b) preventing inequitable administration of law. So here
the outcome determinative test should apply federal law.
iii. Holding: Court should look at the source of the federal law that is in conflict with state law.
Here the source is not federal judge-made law but instead a “pertinent” Federal Rule, and a
“pertinent” rule will always govern unless the rule violates either of the following:
1. Rules Enabling Act (apply the Sibbach test of “does it really regulate procedure).
2. Constitution (apply the test from the Necessary and Proper Clause that the rule is
procedural if it is “rationally capable of classification as procedural”).
Since the rule in question passes both tests, it should govern.
iv. Major contribution: There is no one Erie problem. The answer to Erie questions depends on
the source of federal law.
c. Gasperini v. Center for Humanities (1996): District court denied ’s motion for new trial (59) on
grounds that the jury award was excessive. On appeal, the Court of Appeals applied NY law of
procedure which allowed judges more discretion in determining whether a jury award was excessive.
This NY standard was “deviates materially from… reasonable,” whereas the federal judge-made
standard was “shocks the conscience.” Went up to the Supreme Court because of the Erie problem of
which law to apply. Analysis (court didn’t lay it out like this specifically, but this is what they did):
i. What would the source/nature of law be that allowed a federal court to examine excessive jury
awards?
1. Constitution? No. 7th Amendment does not set a standard for examining jury awards.
2. Federal Statute? No. There is no federal statute on this matter.
3. Federal Rule? No. Though 59 governs decisions to grant new trial, it does not
provide any standard for examining jury awards (note that if 59 were the pertinent
federal rule, we’d then turn to the two tests from the Hanna dictum).
ii. Because there is no guidance from the above, turn to judge-made law. Judge-made law uses
“shock the conscience.” How to reconcile this with state law of “deviates materially”? Use the
Hanna dictum and look at (1) forum shopping, and (2) inequitable administration of law. If we
were to use the federal law, both forum shopping and inequitable administration of law would
result, so the SC accordingly chooses the state law.
iii. Incidental to the Erie issue, the court still has to reconcile the state statute’s grant of power to
appellate courts to review jury decisions with the federal system (7th Amendment forbids
other courts from examining jury verdict). SC accomplishes this by allowing district court to
review the jury award using the NY standard and then leave power with the appellate court to
review the district court’s ruling using an “abuse of discretion” standard.
Burbank: Cases after Erie are attempts to formulate a proper Erie analysis. Gasperini, as the most
recent SC case treating the Erie issue, considers Hanna to be the most appropriate method of analyzing
the Erie issue.
VII.
ERIE SUMMARY: TWO REVOLUTIONS
a. First, it confines federal courts to their proper law-making role under the Constitution and federal
statutes by focusing on state law and state courts
b.
VIII.
Second, it confines federal law-making powers to areas of general federal interest (but does allow for
federal common law).
FEDERAL COMMON LAW
a. General Comments: This is part of the 2nd Erie revolution (confining federal law-making power to
areas of general federal interest). Courts have adopted a two-part test to decide if federal common law
should govern:
i. Is there federal competency to govern? (constitutionally? federal court practices?)
ii. Should a uniform federal law govern in place of state laws? (i.e. is it a good idea that federal
law should govern?) – In many instances courts have skipped this step in their glee to make
federal common law.
b. Trend: The general trend is to allow federal courts to make laws that are binding on state courts. This is
revolutionary in that “general” federal common law, which characterized the Swift v. Tyson regime,
was not binding on state courts. Today, it is usually sufficient for a federal court to “borrow” a law
from a state and tinker with it so that it is not “hostile” to federal law.
c. What to take away from all this: SC has not been very specific on limitations on courts’ ability to
create federal common law. Burbank contends that the Rules of Decision Act places limits on courts’
power to use common law, but courts have ignored this. It’s all about power, and courts have been
reluctant to “find” any limits on their power to make law.
d. Federal Law in State Courts: For a long time, the proposition that federal law could apply in state
courts was limited to FELA actions, but this has been expanded (see Feinberg outline for more
examples, like civil rights claims).
SECTION THREE: PERSPECTIVES
I.
POTENTIAL PROBLEMS OF ADVERSARIAL SYSTEM: partisanship of lawyers can block
uncovering of evidence, partisanship can distort vital testimony, general dislike/fear of being a witness, role
of expert witnesses is distorted, etc.
II.
JUDGES DOING STUPID THINGS
a. Lassiter v. Dept. of Social Services: On issue of indigent’s right to counsel, court weighs three
interests of Eldridge case (private interests, government interests, risk of erroneous decision) but then
does an end-around and cites another precedent (which says due process should be decided on a caseby-case basis) to find that the trial court has the final decision. The problem with this court’s reasoning
is that the procedural system shouldn’t monkey around; litigant should leaving feeling she at least got a
fair shot.
b. Webster Eisenlohr v. Kalodner (Writ of Mandamus case): Judge Kalodner appointed special master to
investigate when, during a derivative shareholder action, the  company may have used fraudulent
tactics to buy out  representatives of shareholders. Circuit court issued writ of mandamus to Judge
Kalodner.
III.
ALTERNATIVE DISPUTE RESOLUTION
a. Possibilities (from most to least adversarial):
i. Administrative hearing
ii. Arbitration – if stipulated in contract, parties have control over procedures.
iii. Mediation – mediator does not have coercive power, but also does not have to focus
exclusively on the issue immediately at hand.
b. Advantages of ADR: relieves court workload, improves access for disputants, socially/psychologically
less disruptive than judicial resolution.
c. Misguided Assumptions about ADR:
i. General assumption is that ADR helps avoid litigation. This is wrong, because very few cases
actually go to trial (not even all the rest are settled, many disposed through 12b6 motions).
ii. Its existence suggests that the reason we have courts is solely for dispute resolution – this
throws away the whole concept of norm articulation.
d. Burbank’s suggestion: suspend judgments on benefits/costs of both litigation and ADR.
SECTION FOUR: PERSONAL JURISDICTION
I.
INTRODUCTION
a. Essential analysis of a personal jurisdiction question: First, court must ask whether there is a state
statute that authorizes it to exercise personal jurisdiction under the circumstances of the case. Second,
if there is, the court must ask whether it would be constitutional under the due process clause to do so.
b. Rules of personal jurisdiction tend to be governed by state law. Congress has not asserted broad
authority; the theory and practice of state law is therefore of interest because: state laws are imported
into the FRCP via 4, and constitutional limitations on state law complete the picture of how judicial
business is allocated.
c. Don’t get tripped up by terms: Personal jurisdiction refers to the authority to adjudicate over people or
things, whereas subject matter jurisdiction refers to general types of lawsuits.
d. Types of personal jurisdiction:
i. “In personam”: Jurisdiction over ’s person gives court power to issue judgment against 
personally. This judgment can then be sued upon in other states, and all of ’s assets may be
seized to satisfy judgment.
ii. “In rem”: Jurisdiction over a thing gives court power to adjudicate a claim made concerning a
piece of property or about a status (e.g. action to quiet title, action to dissolve marriage).
iii. “Quasi in rem”: Action is begun by seizing property owned by  (attachment) or debt owed to
 (garnishment) within the forum state. The property or debt seized is a pretext for the court
to adjudicate the case without jurisdiction over ’s person. Any judgment only affects the
property or debt seized, and the judgment cannot be sued upon in another court.
e. Pennoyer v. Neff (1878)
i. Court relied on two principles of public law: (1) every state has sovereignty over persons and
property within its borders; (2) states may not exercise direct sovereignty over persons or
property outside their borders.
ii. Substituted service by publication may be sufficient where the property is brought under the
control of the court, but the Ore. Ct. here did not seize Neff’s property prior to the lawsuit.
iii. Where entire object of action is to determine personal rights and obligations, service by
publication is insufficient to confer jurisdiction.
iv. Going on the above, since Neff was not personally served and never appeared, personal
judgment against him was invalid.
II.
JURISDICTION OVER THINGS: In rem jurisdiction has never really been found unconstitutional.
a. Tyler (1900): In action quiet title over land, lower court served by publication to “all persons who
might have an interest.” SC of MA held that constructive notice is sufficient for unknown parties who
might have an interest.
b. Garfein v. McInnis (1928): When  brings in rem action concerning property located within state,
making service outside of the state on a nonresident  is sufficient to give forum state jurisdiction
binding on .
c. Harris v. Balk (1905): For purposes of quasi in rem actions, your debt travels with you wherever you
go. OVERRULED by Shaffer v. Heitner, where court found quasi in rem actions unconstitutional.
d. Campbell v. Murdock (1950): Out-of-state  has two options in federal quasi in rem actions: (1) not
appear and be subject to default judgment, or (2) appear and be subject to personal jurisdiction. (Very
little precedental value)
e. §1655 – In a federal in rem jurisdiction concerning lien enforcement where a defendant is absent, the
statute allows nationwide service of process. If  fails to appear or plead within time allowed, default
judgment will only affect property covered by the lien.
III.
JURISDICTION OVER PERSONS
a. Presence (Tag) – In general, presence in a state is sufficient for personal jurisdiction. Fraudulently or
coercively bringing the person into the state would nullify tag jurisdiction, but other than that, it’s all
good.
i. Burnham v. Superior Court (1990):  visited his children in CA where they were living with
his estranged wife. She served papers for divorce. Tag jurisdiction upheld.
ii. Darrah v. Watson (1873):  (PA) served while visiting VA on business. Tag jurisd. upheld.
b.
c.
d.
e.
iii. Grace v. McArthur (1959): Tag jurisdiction while flying over the state upheld.
iv. Wyman v. Newhouse (1937): Fraudulently luring  into state isn’t cool.
Domicile: Domicile creates general jurisdiction. Look at domicile at time the lawsuit is brought.
Consent: Consent can take many forms, including contracting into it, consenting via general
appearance, etc..
i. Hess v. Pawloski (1927): MA statute considered driving through the state as consenting to
appointment of DMV as agent for service of process in event of accident. SC upheld.
ii. Flexner v. Farson (1919): Because of Interstate Commerce Clause, SC struck down KY
statute that equated doing business in state as consenting to jurisdiction.
Acts Done in State
i. Doherty v. Goodman (1935): IA statute allowed service on any business with agent in state.
SC upheld.
ii. Dubin v. City of Philadelphia (1938): SC allowed jurisdiction over persons owning property
in the state, even if they were not domiciled in the state.
iii. Adam v. Saenger (1938): SC upheld CA law allowing s to counterclaim against , even
though, had the  not brought the suit,  would not be subject to personal jurisdiction.
Minimum Contacts and Reasonableness:
First look to see if minimum contacts exist:
(1) Evaluate whether claim at issue in lawsuit arose out of ’s activities in the state.
(2) Examine the quality and nature of ’s activities in the state. To do so, apply the
purposeful availment test.
Then look to see if there is reasonableness by considering:
(1) State’s interests.
(2) ’s interests.
(3) Interests of interstate judicial system.
i. International Shoe (1945): For a state to subject nonresident  to in personam jurisdiction,
due process requires that  have certain minimum contacts with the state such that the
maintenance of the suit does not offend traditional notions of fair play and justice. Analysis
that will determine whether minimum contacts exist:
(1) Evaluate whether claim at issue in lawsuit arose out of ’s activities in the state.
(2) Examine the quality and nature of ’s activities in the state.
ii. Perkins v. Benguet (1952): Whenever foreign corporation carries on “continuous and
systematic” activities with a state, that state may assert personal jurisdiction on the
corporation, even if the cause of action did not arise within its borders and was not related to
the corporation’s business activities within its borders.
iii. Mullane v. Central Hanover Bank (1950): Whereas International Shoe explicitly looked to
only ’s interests, other interests were implied, and the court here also looked at the state and
out-of-state beneficiaries’ (s) interests.
iv. Mcgee v. International Life Insurance (1957): Minimum contacts, under International Shoe,
do exist based on a single contract within the state. As in Mullane, court looked at interests of
the state and  in addition to those of the .
v. Hanson v. Denckla (1958): Burbank says this is a horrible case. It reversed the advances of
International Shoe and the cases following IS, and it looked to purposeful availment
(purposeful availment was incorporated into the IS minimum contacts analysis by later cases).
vi. Shaffer v. Heitner (1977): Minimum contacts test should govern assertions of personal
jurisdiction in all cases. Thus, assertion of jurisdiction through quasi in rem by DE courts
against nonresident directors of DE-incorporated company was unconstitutional, and the facts
here did not satisfy minimum contacts.
vii. Kulko v. Superior Court (1978) [divorced father sends daughter to California]: Court rejected
personal jurisdiction here because the “quality and nature” of the ’s activity was not
“reasonable” and “fair.”
viii. World-Wide Volkswagen (1980) [bought car in NY, caught fire in OK, sued in OK]: Court
found that minimum contacts with OK were not satisfied, because it was not foreseeable that
the car would end up in OK (this is different from cases where  purposely places product in
stream of commerce). The critical point is that jurisdiction must be the result of some
“purposeful act” of the  (purposeful availment).
ix. Burger King v. Rudzewicz (1985): In addition to the minimum contacts test, court worked in
an analysis of reasonableness by looking at the interests of , state, and interstate judicial
system.
x. Asahi (1987):  (CA) sued  Cheng Shin (Taiwan), manufacturer of motorcycle tire, who
impleaded  Asahi (Japan), manufacturer of valve assembly. Court was split three ways, but
essentially it found that the facts passed minimum contacts but not reasonableness.
IV.
STATE LONG ARM STATUES: The analyses listed above (minimum contacts, etc) determine whether
an assertion of jurisdiction satisfies the due process clause of the 14 th Amendment. However, the due
process clause does not automatically confer any jurisdiction on state courts; it only defines the outer
bounds of permissible jurisdictional power. It is up to the legislature of each state to actually grant the
power to its courts to exercise personal jurisdiction. Some states have long-arm statutes that enumerate
specific types of contact with the state to confer jurisdiction. Other states have long arm statutes that allow
courts to reach the limits of due process.
V.
FEDERAL RULES/STATUTES
a. 4(k) – Territorial Limits of Effective Service – governs personal jurisdiction in federal cases.
i. 4(k)(1)(A) – In most federal cases, personal jurisdiction is tied to the jurisdiction of a state
court of general jurisdiction in the state in which the federal district court sits (i.e. if there’s no
federal statute saying otherwise, district court will “pretend” for the purposes of determining
jurisdiction that it is a state court).
ii. 4(k)(1)(B) – “Bulge provision” – For parties joined under 14/19, service is effective to
establish jurisdiction within 100 miles from the place where the summons was issued.
iii. 4(k)(1)(D) – when authorized by a statute of the U.S. – this means that a statute allowing
nationwide service of process will allow for jurisdiction over any person found in the U.S.
b. A federal statute providing for nationwide service of process must pass the constitutionality test of due
process under the 5th Amendment. A number of federal courts have said that the sole test is “minimum
national contacts.” But s may have a legitimate argument that reasonableness should also be worked
into the analysis (after courts have struggled to work reasonableness into the 14 th Amendment analysis,
it seems unlikely that a 5th Amendment analysis would disregard it).
VI.
CHALLENGING JURISDICTION
a. Challenging Jurisdiction by Collateral Attack – challenge forum state’s assertion of jurisdiction when
 seeks to enforce judgment in ’s state (assuming  won in forum state). Pitfall is that if the
collateral attack fails, res judicata bars the  from relitigating on the merits.
b. Challenging Jurisdiction in Federal Court:  files a 12(b)(2) motion for dismissal on lack of
jurisdiction. If it is not granted,  defends on the merits, and if  loses,  can appeal on both
jurisdiction and merits. If  never makes a 12(b)(2) motion, however, he cannot later appeal on
grounds of lack of jurisdiction. Note that if  files a 12(b)(6) motion instead, that classifies as
defending on the merits, and  would subject himself to entire liability.
c. Challenging Jurisdiction in State Court:  makes special appearance by filing notice that he is
appearing solely for the purpose of challenging jurisdiction and is not submitting generally to
jurisdiction.
i. In most states, if  loses on the challenge to jurisdiction,  can defend on the merits and then
appeal the jurisdiction issue if he loses on the merits.
ii. In a few states, if  loses on the challenge of jurisdiction, he must either (1) defend on the
merits and forego the right to appeal jurisdiction, or (2) stand on the jurisdictional objection
and submit to adverse judgment in order to preserve right to appeal jurisdiction.
SECTION FIVE: OPPORTUNITY TO BE HEARD
I.
NOTICE – Test of constitutionality from Mullane for sufficient notice is that notice must be reasonably
calculated to apprise parties of the pendancy of the action and afford them the opportunity to present their
objections.
II.
DUE PROCESS IN THE CONTEXT OF PROVISIONAL REMEDIES
a. Sniadach case and its progeny – the most recent case (Doehr) applies the Matthews v. Elridge test for
evaluating a pre-judgment attachment to determine whether it violates the due process clause – look at
(1) private interests affected by attachment, (2) risk of erroneous deprivation, (3) interests of party
seeking the pre-judgment remedy.
b. The Sniadach and progeny cases generally evaluate the following competing interests: (1) ’s
interests [concern that property will disappear], (2) ’s interest [at risk of losing use/possession of
property erroneously], (3) legal system’s interest [basically mirror those of each of the parties]
c. Other matters that weigh on the above analysis: nature of the property, ’s interest in the property,
requirement that  file a bond, contents of ’s affidavit, nature of person reviewing affidavit, timing
of hearing.
d. Cognovit – provision by which debtor agrees in a contract to waive right to notice of hearing before
deprivation of property. In D.H. Overmyer v. Frick, SC upheld the cognovit in question because the
party knowingly, voluntarily, and intelligently waived its right to notice of hearing. As an attorney for
seller, to ensure that your cognovit provision passes the test, make sure the waiver provision is
explained clearly/prominently, and make sure that it is bargained for (i.e. consideration – make sure
that the buyer gets something she wouldn’t have otherwise).
SECTION SIX: FORMER ADJUDICATION
NOTE TO WHOEVER’S READING THIS: THIS SECTION OF THE OUTLINE IS VERY DISORGANIZED, SO
PAY SERIOUS ATTENTION IN CLASS TO FIGURE OUT PRECLUSION. IT TAKES SOME WORK TO KEEP IT
ALL STRAIGHT IN YOUR HEAD.
I.
GENERAL OBSERVATIONS
a. Former adjudication entails precluding a party from litigation because of prior litigation on either a
claim or an issue.
b. Claim Preclusion (Res Judicata)
i. Merger – if final judgment is for , ’s claim is merged with the judgment.
ii. Bar – if final judgment is for , ’s claim is barred from further adjudication.
iii. To be merged or barred, claim must have been adjudicated on the merits.
iv. Questions of could/should often combine (i.e. courts will often say that a claim that could
have been litigated before should have been litigated before).
c. Issue Preclusion (collateral estoppel) – operates only with respect to issues that were decided in
judgment (i.e. only those that were actually litigated; no could/should questions play into it).
d. Two requirements for preclusion:
i. Valid judgment – entered by a court with subject matter jurisdiction that properly exercised
personal jurisdiction and gave adequate notice/opportunity to be heard.
ii. Final judgment – this requirement is less strict; it is required that at least one court will have
dealt with the claim before it may be precluded.
II.
CLAIM PRECLUSION
a. Party’s interests in RJ:  wants to prevent harassment and know that a claim has been concluded
(stability of judgments),  does not want to be precluded from litigating claim in A2 that  could not
bring in A1.
b. Problems with modern claim preclusion law: Collapsing the could/should questions severely limits ’s
ability to shape own lawsuit (since  must consider what will happen in the future instead of simply
concentrating on the present lawsuit), and these questions can be adequately addressed through issue
preclusion.
c. Related Claims: When  can bring two claims in the same action,  must do so. Inconvenience is not
sufficient justification for splitting claims.
i. Williams v. Columbia Gas (1950):  brought A1 on theory of conspiracy (under Sherman
Act) and A2 on theory of violation of Clayton Act. A2 was dismissed because SOL had
tolled. Court decided that A1 should be precluded because A1 and A2 were: (1) based on the
same facts, relied on the same evidence, and sought the same relief.
ii. Smith v. Kirkpatrick (1953): ’s A1 dismissed (given leave to plead quantum merit); filed
A2 (but not on quantum merit) and lost; in A3,  pleaded quantum merit, and court allowed
A3 to proceed to because A3 involved different “rights” and “wrongs” from those in A1/A2
and therefore required different evidence and remedies. (After Harrington, this case probably
wouldn’t be decided the same way)
iii. Hennepin v. Fort Wayne Corrugated Paper (1946):  sued under contract in A1, lost, then
brought A2 for reformation of contract. Court precluded A2 since its claim could have been
brought in A1.
iv. Sutcliffe Storage v. United States:  attempted to split claim arising out of four consecutive
leases (if claims were brought together, amount in controversy would force  to bring the suit
in the U.C. Court of Claims in D.C., and  lived in MA). Court held that inconvenience is not
sufficient justification for splitting claims.
d. Choice of forum
i. Presumption of many is that preclusion law respects choice of forum, but some
courts/commentators have said that a if it is possible for  to bring all of her claims in a
single forum,  must do so.
ii. Since §1367 allows  who brings action in federal court to also raise related state claims with
that action, the trend is to preclude  from later bringing those state claims elsewhere. But, if
it is very clear that a judge would have used discretion under §1367(c) to not consider those
claims, then those claims may not be precluded.
e.
f.
g.
III.
iii. Removal – when  brings suit in state court and case is removed to federal court,  must
amend complaint to include related federal claims.
iv. Note that nearly every state has exceptions to domestic preclusion law for claims that could
not have been brought because they were outside the subject matter jurisdiction of A1 forum.
Change in Law does not invalidate the effect of claim preclusion. If you have litigation pending and
the law changes, you can raise a claim based on the change in law ONLY if you already challenged
that law in your complaint. In a few cases (e.g. desegregation), public policy will dictate that the new
claim not be precluded (in which case, as in Harrington, the court will probably look to see if the
interests of allowing the new claim do not outweigh the interests of RJ to ensure finality, encourage
reliance, and promote judicial economy).
i. Harrington v. Vandalia (1981):  sued under Title VII and won in DC but AC on appeal
denied damages. Three years later,  tried to bring suit again under §1983 because of a
change in SC interpretation. Court found that change in applicable law does not invalidate the
effect of claim preclusion, since the issue in this case does not violate the interests in
employing RJ (ensuring finality, encouraging reliance, promoting judicial economy). Note
that even if law of Title VII had changed to allow for damages,  would still be precluded.
Adjudications not on the merits
i. Any dismissal is considered on the merits unless it is for lack of jurisdiction, improper venue,
or a failure to join a party under 19, or unless it is dismissed “without prejudice,” or unless it
is dismissed because  agrees to a nonsuit (this last one is according to Restatement 2 nd §20).
ii. 12(b)(6): Today, since a 12(b)(6) judgment will usually grant  leave to file amendments to
the complaint, a 12(b)(6) dismissal is a judgment on the merits and therefore preclusive.
Basically, if the 12(b)(6) dismissal does not state that it is “without prejudice,” it is preclusive.
iii. Unlike a dismissal for failure to state a claim, a dismissal for lack of jurisdiction can never be
said to be “without prejudice.”
iv. Note that, though a dismissal for lack of personal jurisdiction is not preclusive, the  may not
bring it again in the same jurisdiction (because of issue preclusion).
v. Waterhouse v. Levine (1903): A1 was dismissed because  brought it prematurely. Court
held that, since the ruling in A1 was not on the merits, claim could not be precluded in A2.
Counterclaims
i. Compulsory counterclaims: If it was compulsory in A1 for  to make a counter-claim (on a
particular claim), that claim is precluded in A2.
1. Note that very little in traditional common law makes counterclaims compulsory, but
some jurisdictions now do have a common law compulsory counterclaim rule
requiring  to make counterclaim when  raises an affirmative defense on the same
subject matter.
2. Federal Rules in 13 provide for compulsory counterclaims, but many states do not
have an equivalent rule.
ii. If  wins on counterclaim in A1 but is unsatisfied with the damages,  cannot seek a new A2
on that same claim.
iii. Affirmative defenses: Where  raises an affirmative defense in A1 and seeks in A2 to bring a
claim based on that affirmative defense, preclusion depends on who won in A1:
1. If  won,  cannot file that claim in A2 (to allow that could potentially upset ’s
judgment in A1).
2. If  won,  can file that claim in A2 (would essentially serve to validate ’s
judgment in A1).
iv. Dindo v. Whitney (1971): Dindo claimed that in A1, when he was not represented by counsel
(but instead by insurance company), he did not know he could bring a counterclaim (it was
compulsory in A1). When he sought to bring the claim in A2,  moved for SM. Court found
that, because A1 was settled (and therefore not much of a burden on the court), SM should be
denied, and the trial court should determine whether Dindo really did not know.
ISSUE PRECLUSION
First look to see if the general requirements for issue preclusion are met (a). Then look to see if the
situation satisfies any of the exceptions (b). Then look to see if non-mutual preclusion can be used (c).
Keep (d) and (f) in mind.
a. General Requirements
b.
c.
d.
e.
i. Test (from Blue Goose)
1. Issue must have been fully litigated in the first action.
2. Issue must have been essential to the judgment in the case.
ii. If there was a general verdict, and you can determine the grounds of the jury’s decision, there
will be preclusion. If you cannot determine the grounds, there won’t.
iii. Basic method of analysis: If the decision was appealable, it should be preclusive.
iv. Remember that issue preclusion is not like claim preclusion, so just because an issue
could/should have been litigated in a previous action, that does not mean it is precluded
(Jacobson v. Miller).
Exceptions
i. Erroneous application of law/facts: preclusion does bar relitigation of a mixed question of law
and fact, even if the original judgment was based on an erroneous application of law (Moser).
ii. Change in law/facts: Preclusion will not affect issues where the applicable controlling facts or
laws have changed significantly (Montana v. U.S.).
iii. Courts of limited jurisdiction: Decisions on issues by courts of limited jurisdiction are also
preclusive, unless there is a legitimate policy rationale to overcome the preclusive value (e.g.
family court with jurisdiction limited to settling issues of support and custody denies support
on the grounds that the couple is not legally married; should this finding be precluded in a
court with exclusive jurisdiction over divorce cases? no, because there was a policy rationale
in giving the second court exclusive jurisdiction over divorce); note that a difference in the
amount of damages that are accessible in courts is not enough of a policy consideration to
overcome preclusion.
iv. Unforeseeability: relitigation is permitted if it was not sufficiently foreseeable at the time of
the initial action that the issue would arise in the context of a subsequent action.
v. Public policy: policy considerations can overcome issue preclusion. Note that most preclusion
law is judge made and trans-substantive (i.e. it applies in all types of cases), so judges have
responsibility to ensure that their application of preclusion law does not conflict with other
public policy mandates.
vi. Restatement’s exceptions: (see Feinberg outline; these generally mirror the above)
Non-mutuality: what is the effect of issue preclusion on a party in A2 who was not a party or in privity
to any of the parties in A1?
i. Analysis:
1. Was joinder possible (to protect against “wait and see” approach)?
2. Did party against whom preclusion is desired choose the forum for the initial action?
3. Did the party against who preclusion is desired have an incentive to vigorously
litigate the first lawsuit?
4. Is non-mutual preclusion being asserted against the government? (Not allowed)
ii. Scenarios (as they relate to #2 above)
1. Defensive collateral estoppel
a. A1: PvD (D wins). A2: PvND. Strong case for ND to use CE.
b. A1: PvD (P wins). A2: DvND. Less strong case for ND to use CE (because
D did not choose original court).
2. Offensive collateral estoppel
a. A1: PvD (D wins). A2: NPvP. Strong case for NP to use CE (P chose
original court).
b. A2: PvD (P wins). A2: NPvD. Weakest case for NP to use CE.
Effect of criminal proceedings on subsequent civil proceedings: Modern view is that A1 criminal
proceeding is issue preclusive of an A2 civil proceeding (e.g. a person convicted of arson in A1 cannot
bring suit against his insurance company for fire in A2).
Credit due to valid judgments: An A2 court (State 2) must give full faith and credit to the judgment of
an A1 court (State 1) by applying the preclusion laws of State 1, unless doing so would violate the due
process clause. A2 federal courts must do the same, unless doing so would violate the due process
clause or a relevant federal statute that repeals normal preclusion law (this second part has never
happened).