Civil Procedure Rules & Cases
Struve Fall 2008
Books:
Hazard, Tait, Fletcher & Bundy,Pleading and Procedure: State and Federal (9th edition 2005); you will also need the 2008
Spencer, Federal Civil Rules Supplement 2008-2009.
Glannon, Civil Procedure: Examples and Explanations (6th ed. 2008)
James, Hazard & Leubsdorf, Civil Procedure (5th ed. 2001) and Friedenthal, Kane & Miller, Civil Procedure (4thed. 2005). All of these books are
available on reserve in the library; the Glannon book can also be purchased at the bookstore.
DUE PROCESS AND LEGAL REPRESENTATION ...............................................................................................................................6
U.S. CONST. AMEND. XIV, § 1 (RULE BOOK PAGE 14) DUE PROCESS CLAUSE ................................................................................................... 6
Lassiter v. Dept of social services (US 1981) p124 ......................................................................................................................... 6
DUE PROCESS AND TERRITORIAL JURISDICTION ...........................................................................................................................6
Pennoyer v. Neff (US, 1877) p 147 ................................................................................................................................................. 6
See also. Mcdonald v. Mabee (US 1917) p 156 (J. Holmes, “foundation of jurisdiction is physical power”) ............................... 6
See Grace v. MacArthur (Ark 1959) p158 (served on non stop flight between TN and TX; ct said okay under Rule 4f at time.) .. 6
International shoe Co. v. Washington ( US 1945) p 163 ................................................................................................................ 6
See also Perkins v. Benguet Consolidated Mining Co (US 1952) p 173 .......................................................................................... 6
McGee v. International Life Ins Co. (US 1957) p 173 ..................................................................................................................... 7
Hanson v. Denckla (US 1958) p 174 ............................................................................................................................................... 7
World-wide Volkswagen Corp v. Woodson (US 1980) p 176 ......................................................................................................... 7
AsahiMetal v. Superior Ct CA (US 1987) p 212 .............................................................................................................................. 7
Gray v. American Radiator ............................................................................................................................................................ 7
Burger King Corp v. Rudzewicz (US 1985) p 196 ............................................................................................................................ 7
FED. R. CIV. P. 4(K) ............................................................................................................................................................................... 7
N.Y. C.P.L.R. § 302(A) (ON COURSE PORTAL) ............................................................................................................................................ 7
CAL. CIV. PROC. CODE § 410.10 (ON COURSE PORTAL) ................................................................................................................................ 7
FED. R. CIV. P. 12(B)(2), 12(G), 12(H), 12(I) ........................................................................................................................................... 7
Calder, ........................................................................................................................................................................................... 7
Keeton, .......................................................................................................................................................................................... 7
Kulko .............................................................................................................................................................................................. 7
Helicopteros................................................................................................................................................................................... 7
Shaffer v. Heitner (US 1977) p 250 ................................................................................................................................................ 7
Cf. banco ambrosiano, v. Artoc Bank & Trust(NY 1984)p264 ........................................................................................................ 8
Burnham v. Sup Ct. CA (US 1990) p 266 ........................................................................................................................................ 8
NOTICE .........................................................................................................................................................................................8
NOTICE = SERVICE = DELIVERY OF COPY OF SUMMONS AND COMPLAINT. ........................................................................................................... 8
FED. R. CIV. P. 4 (YOU CAN SKIM 4(I) AND 4(J)) .......................................................................................................................................... 8
Mullane v. central hanover Bank and Trust (US 1950) p 281 ........................................................................................................ 8
Greene v. Lindesey (US 1982) p 290 .............................................................................................................................................. 8
Dusenbery v. US (US 2002) p 291 .................................................................................................................................................. 8
Mennonite board of Missions v. Adams (US 1983) p 291 .............................................................................................................. 8
Lehr v. Robertson (US 1983) p 292 ................................................................................................................................................ 8
Jones v. Flowers (US 2006 ) p 8-9 of Supp. .................................................................................................................................... 8
FEDERAL QUESTION JURISDICTION...............................................................................................................................................8
RATIONALE FOR FEDERAL COURT? ............................................................................................................................................................. 8
WELL-PLEADED COMPLAINT RULE:............................................................................................................................................................. 8
U.S. CONST. ART. III .............................................................................................................................................................................. 9
28 U.S.C. § 1331 ................................................................................................................................................................................. 9
Louisville & Nashville RR Co. v. Mottley ( US 1908) p 349 ............................................................................................................. 9
Osburn v. Bank of the US (US 1824) p352 first said created by US law is federal question. .......................................................... 9
American National Red Cross v. SG and QE (US 1992) p 352 reaffirmed Osburn .......................................................................... 9
Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing (US 2005) Supp pg 20 ......................................... 9
Merrell Dow v. Thompson (US 1986) quoted in Grable. ................................................................................................................ 9
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US bank v. National Red Cross ....................................................................................................................................................... 9
DIVERSITY JURISDICTION ..............................................................................................................................................................9
§ 1332 AMOUNT IN CONTROVERSY: ......................................................................................................................................................... 9
U.S. CONST. ART. III .............................................................................................................................................................................. 9
28 U.S.C. § 1332 (FOCUS ON 1332(A), (B), (C) AND (E)) ............................................................................................................................ 9
Mas v. Perry (US 1974) p 364 ....................................................................................................................................................... 9
Twentieth century Fox v. Taylor (SDNY 1965) ............................................................................................................................... 9
STRAWBRIDGE V. CURTISS (US 1806) NO PARTY ON ONE SIDE MAY BE A CITIZEN OF THE SAME STATE AS NAY PARTY ON THE OTHER SIDE....................... 9
Dred Scott v. Sanford ..................................................................................................................................................................... 9
SUPPLEMENTAL JURISDICTION (PART I) .......................................................................................................................................9
28 U.S.C. § 1367(A) .......................................................................................................................................................................... 10
28 U.S.C. § 1441 (FOCUS ON 1441(A), (B), (C) AND (F)) .......................................................................................................................... 10
United Mine Workers of American (UMWA) v. Gibbs (US 1966) p 376 ....................................................................................... 10
Aldinger v. Howard (US 1976) p 380 ........................................................................................................................................... 10
Finley v. US (US 1989) p 388. ....................................................................................................................................................... 10
REMOVAL ................................................................................................................................................................................... 10
ARTFUL PLEADING: ALLOWS REMOVAL WHERE FEDERAL LAW COMPLETELY PREEMPTS A Π”S STATE LAW CLAIM… WILL NOT BE PERMITTED TO DISGUISE THE
CLAIM’S INESCAPABLY FEDERAL NATURE! .................................................................................................................................................. 10
28 U.S.C. §§ 1446(A), (B) & (D) .......................................................................................................................................................... 10
28 U.S.C. § 1447 ............................................................................................................................................................................... 10
HYPO: π (NY) → 80K in PA D.Ct. → Δ (PA) ................................................................................................................................... 10
Mesa v. CA ................................................................................................................................................................................... 10
Caterpillar v. Williams (US 1987) p 400 ....................................................................................................................................... 10
VENUE; CHANGE OF VENUE; FORUM NON CONVENIENS ........................................................................................................... 10
28 U.S.C. §§ 1391(A), (B), (C) & (D) .................................................................................................................................................... 10
28 U.S.C. §§ 1404, 1406 ................................................................................................................................................................... 10
§ 1404: TRANSFER FROM 1 FEDERAL CT TO ANOTHER; CHANGE OF VENUE FOR INTEREST OF JUSTICE .................................................................... 10
§ 1406: DISMISS OR TRANSFER IF VENUE IS NOT PROPER AND THERE IS ANOTHER OPTION. ................................................................................. 10
DIFFICULTY IN GETTING MOTIONS (EASY TO HARD) ...................................................................................................................................... 10
NOTE ON TRANSFERS: ........................................................................................................................................................................... 11
Ravelo Monegro v. Rosa, 211 F.3d 509 (9th Cir. 2000) (on course portal) .................................................................................. 11
PLEADINGS: THE COMPLAINT ..................................................................................................................................................... 11
FED. R. CIV. P. 7(A) ............................................................................................................................................................................. 11
FED. R. CIV. P. 8(A), (D), (E) ................................................................................................................................................................. 11
FED. R. CIV. P. 9(B) ............................................................................................................................................................................. 11
FED. R. CIV. P. 12(B)(6)....................................................................................................................................................................... 11
FED. R. CIV. P. 84 ............................................................................................................................................................................... 11
FORM 11 (RULE BOOK P. 140) ............................................................................................................................................................... 11
NOTE ON PLEADINGS; ........................................................................................................................................................................... 11
Twombly v. Bell Atlantic Corp., No. 02-CV-10220 (on course portal) .......................................................................................... 11
Erickson v. Pardus, No. 05-cv-00405 (on course portal) .............................................................................................................. 11
Conley v. Gibson .......................................................................................................................................................................... 11
RULE 11 AND RELATED ISSUES.................................................................................................................................................... 12
FED. R. CIV. P. 11 ............................................................................................................................................................................... 12
28 U.S.C. § 1927 ............................................................................................................................................................................... 12
Zuk v. EPPI of the Medical college of Pennsylvania (3rd Cir, 1996) .............................................................................................. 12
RULE 11 ............................................................................................................................................................................................ 12
RESPONDING TO THE COMPLAINT: AMENDED PLEADINGS ........................................................................................................ 12
FED. R. CIV. P. 12 MOTIONS IN LIEU OF AN ANSWER .................................................................................................................................. 12
FED. R. CIV. P. 8(B), (C), (D) ................................................................................................................................................................. 12
FED. R. CIV. P. 15 ............................................................................................................................................................................... 12
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RULE 12! WHAT DEFENDANTS CAN DO TO HELP FIGHT A CLAIM. .................................................................................................................. 13
TYPES OF MOTIONS UNDER RULE 12 ....................................................................................................................................................... 13
RESPONSES TO ALLEGATION ................................................................................................................................................................... 13
Worthington v. Wilson (DCt IL, 1992) .......................................................................................................................................... 14
Hypos (p. 626):............................................................................................................................................................................. 15
JOINDER OF CLAIMS: SUPPLEMENTAL JURISDICTION (PART II) ................................................................................................... 15
FED. R. CIV. P. 18 ............................................................................................................................................................................... 15
FED. R. CIV. P. 42 ............................................................................................................................................................................... 15
FED. R. CIV. P. 13 (FOCUS ON 13(A) & (B)) ............................................................................................................................................. 15
28 U.S.C. §§ 1367(A) & (C) ................................................................................................................................................................ 15
JOINDER 18 A ..................................................................................................................................................................................... 15
13 A COMPULSIVE COUNTER CLAIM ......................................................................................................................................................... 15
13B PERMISSIVE COUNTERCLAIM,............................................................................................................................................................ 15
**13 F AND 15 A SEEM REDUNDANT. WILL PROBABLY BE AMENDED. ............................................................................................................ 15
Jones v. Ford Moter Credit co. (2nd cir , 2004) p653. ................................................................................................................... 16
FED. R. CIV. P. 13(G) ........................................................................................................................................................................... 16
Fairview Park excavating co. v. Al Monzo Const. (3rd Cir, 1977) p 665 ........................................................................................ 16
JOINDER OF PARTIES .................................................................................................................................................................. 16
FED. R. CIV. P. 20 ............................................................................................................................................................................... 16
FED. R. CIV. P. 19 ............................................................................................................................................................................... 16
FED. R. CIV. P. 24 ............................................................................................................................................................................... 16
Kedra v. City of Philadelphia (E.D. of PA, 1978) p 673 ................................................................................................................. 16
Temple v. Synthes Corp. (US 1990) p 684 .................................................................................................................................... 16
JOINDER OF PARTIES, CONT’D; SUPPLEMENTAL JURISDICTION (PART III)................................................................................... 17
FED. R. CIV. P. 14 (A) & (B) THIRD-PARTY PRACTICE ................................................................................................................................. 17
28 U.S.C. §§ 1367(A) & (B) ................................................................................................................................................................ 17
FED. R. CIV. P. 4(K)(1)(B) (REVIEW) ....................................................................................................................................................... 17
Helzberg’s Diamond Shopsv. Valley West Des Moines Shopping Ctr ( 8 th cir,1977) p 685 .......................................................... 17
Owen Equipment& Erection co. v. Kroger (US, 1978) p381 ......................................................................................................... 18
CLASS ACTIONS .......................................................................................................................................................................... 18
FED. R. CIV. P. 23 ............................................................................................................................................................................... 18
28 U.S.C. § 1367 ............................................................................................................................................................................... 18
INTRODUCTION TO CLASS ACTIONS .......................................................................................................................................................... 18
THE MODERN CLASS ACTION RULE: AN INTRODUCTION .............................................................................................................................. 18
RULE 23(A): PRESCRIBES 4 BASIC ELEMENTS .............................................................................................................................................. 18
NOTE ON DAMAGE CLASS ACTIONS AND THE PROBLEM OF MASS TORTS .................................................................................. 18
RULE 23 (IN CLASS NOTES)..................................................................................................................................................................... 19
Exxon Mobil corp. v. Allapattah Services, Inc (US 2005) Suppl. p30 ............................................................................................ 19
Starkist......................................................................................................................................................................................... 20
Finley ........................................................................................................................................................................................... 20
Hypo on Supplmental Jurisdiction ............................................................................................................................................... 20
DISCOVERY ................................................................................................................................................................................. 20
FED. R. CIV. P. 26 -- FOCUS ON: 26(A)(1), 26(B)(1), (2) & (4), 26(D), 26(E), & 26(F) ................................................................................. 20
FED. R. CIV. P. 30 -- CASEBOOK PP. 824-25 ............................................................................................................................................ 20
FED. R. CIV. P. 33 -- CASEBOOK PP. 825-26 ............................................................................................................................................ 20
FED. R. CIV. P. 34 -- CASEBOOK PP. 826-27; SUPP. P. 70 .......................................................................................................................... 20
FED. R. CIV. P. 35 -- CASEBOOK P. 827 ................................................................................................................................................... 20
FED. R. CIV. P. 36 -- CASEBOOK P. 827 ................................................................................................................................................... 20
RULE 26 A REQUIRED DISCLOSURES POST 1990: SICNE A LOT IN INITIAL THERE ARE NOW LIMITS TO DISCOVERY ...................................................... 20
THE 2006 E-DISCOVERY AMENDMENTS: (SLIDES ON 10/29)....................................................................................................................... 21
Zubulake v. UBS Warburg LLC (SDNY 2003) p 828 ....................................................................................................................... 22
Upjohn co. v. US (US, 1981) p 845 ............................................................................................................................................... 22
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FED. R. CIV. P. 26(B)(5)....................................................................................................................................................................... 22
FED. R. CIV. P. 26(B)(3), 26(C), 26(G) ................................................................................................................................................... 22
FED. R. CIV. P. 37 ............................................................................................................................................................................... 22
FED. R. EVID. 501 (ON COURSE PORTAL).................................................................................................................................................. 22
FED. R. EVID. 612 (ON COURSE PORTAL) WRITING USED TO REFRESH MEMORY.............................................................................................. 23
Hickman v. Taylor (US 1947) p 856 .............................................................................................................................................. 23
RESOLUTION PRIOR TO TRIAL: SUMMARY JUDGMENT............................................................................................................... 23
FED. R. CIV. P. 41 DISMISSAL OF ACTION................................................................................................................................................. 23
DISPOSITION WITHOUT TRIAL.................................................................................................................................................................. 23
FED. R. CIV. P. 55 DEFAULTS JUDGEMENT................................................................................................................................................ 23
FED. R. CIV. P. 60 RELIEF FROM JUDGMENTS AND ORDERS ......................................................................................................................... 23
FED. R. CIV. P. 56 SUMMARY JUDGMENTS ............................................................................................................................................... 23
Colston v. Barnhart (5th Cir, 1997) p 954 ..................................................................................................................................... 24
RESOLUTION PRIOR TO TRIAL: PRETRIAL PRACTICE .................................................................................................................... 25
FED. R. CIV. P. 16 PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT .................................................................................................... 25
FED. R. CIV. P. 68 OFFER OF JUDGMENT ................................................................................................................................................. 25
JURIES ........................................................................................................................................................................................ 26
U.S. CONST. AMEND. VII ...................................................................................................................................................................... 26
FED. R. CIV. P. 38 RIGHT TO A JURY TRIAL IS ............................................................................................................................................. 26
FED. R. CIV. P. 39 TRIAL BY JURY ............................................................................................................................................................ 26
FED. R. CIV. P. 47 SELECTION OF JURORS ................................................................................................................................................. 26
FED. R. CIV. P. 48 NUMBER OF JURORS; VERDICT...................................................................................................................................... 26
FURTHER NOTE ON VOIR DIRE .................................................................................................................................................... 27
Edmonson v. Leesville Concrete, Inc. (US 1991) p 1072 ............................................................................................................... 27
DIVISION OF POWER BETWEEN JUDGE AND JURY ...................................................................................................................... 28
FED. R. CIV. P. 50 ............................................................................................................................................................................... 28
FED. R. CIV. P. 46 ............................................................................................................................................................................... 28
FED. R. CIV. P. 49 ............................................................................................................................................................................... 28
FED. R. CIV. P. 51 ............................................................................................................................................................................... 28
FED. R. CIV. P. 59 ............................................................................................................................................................................... 28
FED. R. CIV. P. 61 ............................................................................................................................................................................... 28
FED. R. CIV. P. 52 ............................................................................................................................................................................... 28
Simblest v. Maynard (2nd cir, 1970) p 1097 ................................................................................................................................. 30
Sioux city & Pacific railroad co. v. Stout (SCOTUS, 1873) p 1106................................................................................................. 31
Spurlin v. GM (5th Cir, 1976) p 1125............................................................................................................................................. 31
SPURLIN V. GENERAL MOTORS CORP. (COA 5TH, 1976)............................................................................................................................ 31
JUDGMENTS, APPEALS ............................................................................................................................................................... 31
FED. R. CIV. P. 54 ............................................................................................................................................................................... 31
FED. R. CIV. P. 58 ............................................................................................................................................................................... 31
FED. R. CIV. P. 60 ............................................................................................................................................................................... 31
FED. R. CIV. P. 69 ............................................................................................................................................................................... 31
FED. R. CIV. P. 79 ............................................................................................................................................................................... 31
CLAIM PRECLUSION .................................................................................................................................................................... 32
U.S. CONST. ART. IV, § 1 ...................................................................................................................................................................... 32
28 U.S.C. § 1738 ............................................................................................................................................................................... 32
28 U.S.C. § 1652 ............................................................................................................................................................................... 32
28 U.S.C. § 2072 ............................................................................................................................................................................... 32
FEDERATED DEPT STORES, INC. V. MOITIE (US 1981) P1159 ...................................................................................................................... 32
Staats v. County of Sawyer (2nd Cirt 2000) p 1177 ....................................................................................................................... 32
ISSUE PRECLUSION ..................................................................................................................................................................... 32
COLLATERAL ESTOPPEL (ISSUE PRECLUSION) 1183 ..................................................................................................................................... 32
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Levy v. Kosher Overseers Association of America, Inc. (2nd Cir, 1997) 1184 ............................................................................... 33
NOTES ON PRECLUSION OF NON-PARTIES IN "PRIVITY" WITH PARTIES .......................................................................................... 34
CLASS NOTES 12/1/08 ..................................................................................................................................................................... 34
Parklane Hosiery Co. v. Shore (US 1979) p1212 .......................................................................................................................... 34
ERIE: THE LAW APPLIED IN FEDERAL COURT ............................................................................................................................... 35
28 U.S.C. § 1652 ............................................................................................................................................................................... 35
28 U.S.C. § 2072 ............................................................................................................................................................................... 35
CHAPTER 4. The Erie Problem 449 ............................................................................................................................................... 35
Swift v. Tyson ............................................................................................................................................................................... 35
Erie Railroad Co. V. Tompkins (US, 1938) p 455 .......................................................................................................................... 35
WHICH STATE'S LAW? KLAXEN............................................................................................................................................................... 36
Gauranty trust Co. v. York(US 1945) p 466 .................................................................................................................................. 36
Byrd v. Blue Ridge Rural(US 1958) p 473 ..................................................................................................................................... 36
Hanna v. Plumer (US 1965) p 479 ................................................................................................................................................ 36
Gasperini v. Center for Humanities, Inc (US 1996) p 491[not assigned] ...................................................................................... 36
Cities Service Co. v. Dunlop p. 499 ............................................................................................................................................... 36
Palmer v. Hoffman pg 502 ........................................................................................................................................................... 36
Klaxon v. Stentor, pg 501 ............................................................................................................................................................. 36
Ragan .......................................................................................................................................................................................... 36
Byrd v. Blue Ridge pg 509 ............................................................................................................................................................ 36
THE BYRD BALANCING TEST FROM MIKE SHECKET. ..................................................................................................................................... 36
28 USC §2072—THE RULES SHALL NOT ABRIDGE ANY SUBSTANTIVE RIGHT. ................................................................................................... 37
York Decision: .............................................................................................................................................................................. 37
Cities Service Co. v. Dunlop .......................................................................................................................................................... 37
Hanna v. Plumer (US 1965).......................................................................................................................................................... 37
TIMELINESS CASES ............................................................................................................................................................................... 37
Walker v. Armco Steel (1980) ...................................................................................................................................................... 37
Gulf oil v. Gilbert factors… in Ravelo Monegro. ........................................................................................................................... 38
Gasperini v. Center For Humanities, Inc. 491 .............................................................................................................................. 38
LAST DAY OF CIV PRO DEC 3 ....................................................................................................................................................... 39
12/3 HYPO: 3 CAR ACCIDENT IN NYC: ................................................................................................................................................... 39
APPENDIX A: STRUCTURE OF A LAWSUIT ................................................................................................................................... 41
APPENDIX B. ERIE DECISION TREE.............................................................................................................................................. 42
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Due Process and Legal representation
U.S. Const. Amend. XIV, § 1 (rule book page 14) Due Process Clause
No state shall deprive any person of life, liberty, or property without due process of the law, or deny any person of the equal protection of
the law.
Lassiter v. Dept of social services (US 1981) p124
Held that even though indigent parents are entitled to assistance of appointed counsel b/c serious enough matter, it’s decided case by case
and her actions were such that it wasn’t necessary for her.
Eldridge factors determine whether the person being tried must be given counsel in accordance with due process
a. Private Interests (Interest in her kid
b. Public Interests (Similar interest in the kid – what’s best for him)
c. Risk of erroneous decisions (Argument is that she would have lost the case anyway)
Due process and territorial jurisdiction


Concerned about D’s due process since P is master of the complaint
Territorial jurisdiction can be waived by D(by answering complaint) or P (by choosing where)
Degree of
relatedness
Steps to find jurisdiction:
1. Authority by statue?
2. Minimum contacts?
3. Reasonable to find jurisdiction?
4. Other considerations?
Types of Territorial jurisdiction:
 In personam: suit against the Person
 In rem: judgement affects everyone’s interest in the property→ it’s about the property!
 Quasi in rem: property is attached only to afftect Δ’s interest in claim.
o Type I: property is subject of claim
o Type II: attach property merely to find jurisdiction, not subject of claim!
**all types need to comply with minimum contacts.
The international shoe min contacts test has a real effect on quasi in rem type ii.
Number of
contacts
Pennoyer v. Neff (US, 1877) p 147
Dude gets his land sold in OR, without being notified. IT’s not due process!
Violation of 14th to get judgment against former client’s land while D is out of state;
Personal jurisdiction wouldn’t work b/c P did not serve D while in Oregon (or at all, in this case)
SCOTUS cares b/c Interstate issues
Article IV in Const: “full faith and credit shall be givne in each state to the public acts, records, judicial proceedings”;
We have it so that states respect each other (keep union together)
Otherwise, you’d have to get judgment in each state!
Article 14: violates due process
lacks notice—only published in an obscure weekly OR paper
lacks territorial juris (a) land wasn’t attached (b)Neff was NOT there
Minimum contacts?
See also. Mcdonald v. Mabee (US 1917) p 156 (J. Holmes, “foundation
of jurisdiction is physical power”)
No--> no jurisdiction
Yes--> Reasonable?
See Grace v. MacArthur (Ark 1959) p158 (served on non stop flight
between TN and TX; ct said okay under Rule 4f at time.)
International shoe Co. v. Washington ( US 1945) p 163
Minimum contacts test. Somewhere between “continuous and systematic
activities” and “casual presence of the corporate agent”
Depends on the “quality and nature of the activity in relation to the fair and
orderly admin of laws”, since they “enjoy the benefits and protection of the
laws…exercise of that privilege may give rise to obligations, and so far as
those oblig arise out of or are connected with activities within the state, a
procedure which requires corp to respond to a suit …can hardly be said to be
undue”
Here, Δ’s activities were “neither irregular nor causal… resulted in large vol
of interstate business…” → NOT unreasonable
No--> no jurisdiction
Yes--> Foreseeable?
No--> no jurisdiction?
Yes--> put ppl in state,
sought business
(McGee), stream of
commerce-->
manifestly unjust?
NO--> jurisdiction
See also Perkins v. Benguet Consolidated Mining Co (US 1952) p 173
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Yes--> no jurisdiction
(head of company managing business from in state was enough min contacts for juris.)
McGee v. International Life Ins Co. (US 1957) p 173
Mother got money from company b/c they had initiated contact to her son in CA, sending him letter and contract there.
Hanson v. Denckla (US 1958) p 174
Donner estb trust in DE then moved to FL. Daughters Denckla and Stewart don’t want the $$ to go to granddaughters Henckla. Fl said the
daughters (Denckla) get the $400k. DE said granddaughters Hanson do. SCOTUS said it was limited “rend of expanding P juris over
nonresidents.” Different from McGee b/c Donner went to FL on her own. Trust not subject to juris there.
World-wide Volkswagen Corp v. Woodson (US 1980) p 176
Reasonableness test!
OK does not have T jurisdiction over…Seaway?
AsahiMetal v. Superior Ct CA (US 1987) p 212
Stream of commerce, reasonableness test→ NO jurisdiction over Asahi.
Part IIA: Min contacts= stream of conmmerce, not a majority, noly plurality (4/9)→ not binding.
Part IIB: tests for reasonability! (8/9) majority
o Burden to defendant?
o Interest of the forum state?
o π’s interest in relief?
o Most efficient resolution?

Courts should be careful in extending reach into foreign countries.
Part III (4/9) no min contacts and no fair play here.
Gray v. American Radiator
Burger King Corp v. Rudzewicz (US 1985) p 196
Reasonableness test.
IA: BK Corporate office in FL; Δ in Detroit, MI; District office in Birmingham, MI.
IB: Yes, there is jurisdiction!
IIA: individuals should have fair warning of activity to make it subject to jurisdiction
 Fair warning satisfied IF:
o Δ purposefully directed activies AND litigation arises from that.
 Jurisdiction b/c:
o Not as burdensome to travel anymore
o If you get benefits, you cannot escape from consequences
o State’s interest in allowing redress for injuries
 Min contacts test:
o SC says yes
o Did not go to FL
o Working w/ BK based in FL
Struve: federal district court relying on FL long arm statute . Rule 4 k1A.
Fed uses state law breach so people cannot shop around in different courts. (Erie)
“fair warning” requirement satisfied if Δ has “Purposefully directed” activities at residence in forum state. See Keeton v. Hustler Magazine,
Inc. US 1984.
Fed. R. Civ. P. 4(k)
How the federal govt gets statutory authority for jurisdiction.
N.Y. C.P.L.R. § 302(a) (on course portal)
Cal. Civ. Proc. Code § 410.10 (on course portal)
Fed. R. Civ. P. 12(b)(2), 12(g), 12(h), 12(i)
Calder,
Keeton,
Kulko
Helicopteros
Shaffer v. Heitner (US 1977) p 250
The stock case→ also have to apply minimum contacts test to type II in rem territorial jurisdiction.
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DE did not have jursidcition b/ buying stocks is not purposeful availment.
Cf. banco ambrosiano, v. Artoc Bank & Trust(NY 1984)p264
Using quasi in rem to fill in gap when due process is not violated
Burnham v. Sup Ct. CA (US 1990) p 266
CA divorce case. Served while visiting children. Court split 4-4 on whether personal in state jurisdiction is major factor. Scalia said it’s the
gold standard. Brennan concurrence, service AND because it’s fair here, min contacts test also met.
Held meeting the financial regulation is not enough for due process, esp given they were able to mail to them before.
If an address is known, mail it to them!
→ due processs analysis of adequacy of notice is very FACT dependent.
**note, SCOTUS only needs 4/9 to grant certiori.
Notice
Notice = service = delivery of copy of summons and complaint.
PERSONAL: Sometimes, throwing it in near the person evading it is sufficient (Errion v. Connel, 9th Cir 1956) and sometimes, if the person
didn’t know what it was, or wasn’t touched by it, it’s not enough (Weiss v. Glemp, SDNY 1992, but note, service in state was the basis for
jurisdiction→ more reason to dismiss??)
LEAVING IT AT DWELLING: sometimes, temporary apt is enough (National Development Co. v. Triad Holding Corp), sometimes
leaving it at the parent’s home when Δ is a sailor is NOT enough (Cox v. Quigley, ME 1992).
BULGE : for 3P Δ impleaded and additional parties needed under Rule 19. Designed to permit efficient adjudication in fed courts with close
borders (eg, SDNY)
TOLLING: in CA, very generous, 3 years to toll the SoL, also tolled for Δ Doe, also note difference between federal and state tolling
MISNAMING: very harsh
SEWAGE SERVICE: used to be a problem.
Fed. R. Civ. P. 4 (you can skim 4(i) and 4(j))
Mullane v. central hanover Bank and Trust (US 1950) p 281
Elementary and fundamental due process requirement: Miliken v. Meyer test: “notice reasonable calculated under all the circumstances to
apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”
Greene v. Lindesey (US 1982) p 290
Posting notice was insufficient under the circ (b/c kid kept pulling it down). Mailing it should suffice.
Dusenbery v. US (US 2002) p 291
5-4 certified mail was sufficient as far as prison room, but divided on whether procedure for mail within prison was adequate.
Mennonite board of Missions v. Adams (US 1983) p 291
Even if you don’t have the address, you need to TRY more than just publication. “reasonably diligent efforts”.
Lehr v. Robertson (US 1983) p 292
Father of child had no right to receive notice of the adoption .. didn’t violate due process b/c he wasn’t in list of ppl who got notice.
Jones v. Flowers (US 2006 ) p 8-9 of Supp.
Govt must take extra reasonable steps to find owner when notice of a tax sale is returned undelivered
Federal question jurisdiction
Rationale for Federal court?
 Prevent possible bias in state court § 1332
 Better at certain topics.
 Matters of federal law (?)
Well-pleaded complaint rule:
 Easy when: Congress created
 Hard when: congress didn’t create authority but state law claim…
 Make sure it meets one of the 3 requirmentes
 Has to be π’s claim, not a defense the Δ will bring up.
FORK:
a)Holme’s test in American Well Work: no federal question jurisdiction under § 1331 UNLESS cause of action is provided by federal law.
(stricter)
b) Grable/smith test: if question so important that answer determines the outcome of the case, then it involves federal question.
Civil Procedure –YJK Fall 2008
Page 8 of 42
U.S. Const. art. III
28 U.S.C. § 1331
Louisville & Nashville RR Co. v. Mottley ( US 1908) p 349
Well pleaded complaint rule.
Sucks to be them. Federal Law trumped their settlement with the RR.
Went to SCOTUS twice!
Osburn v. Bank of the US (US 1824) p352 first said created by US law is federal question.
American National Red Cross v. SG and QE (US 1992) p 352 reaffirmed Osburn
Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing (US 2005) Supp pg 20
Federal jurisdiction b/c Grable’s complaint is premised by IRS failure to give adequate notice, as defined by federal law.
Merrell Dow v. Thompson (US 1986) quoted in Grable.
Lacked federal right of action… relevant to but not dispositive of “sensitive judgments aobut congressional intent that § 1331 requires
US bank v. National Red Cross
Created by US law, so it’s allowed to fed jurisdiction (§ 1331)
Diversity jurisdiction
PA
governor
PA mayor
HYPO: Bloomberg hits 2 ppl in Philly. Is it federal law? No. Traffic accidents are usually state law tort claims
Even if it’s a federal statute defense, their claim isn’t so it cannot be brought in federal court.
§ 1332 Amount in Controversy:
 Even if the π doesn’t win over the amount in controversy, as long as it’s in good faith, eventual recovery doesn’t
matter.
 Aggregation of claims by the same π: only in common and undivided interests.
 If different plaintiffs from the same accident, NOT common and undivided.
 legal certainty test: Δ has to prove that π cannot recover damages in excess of $75k to a “legal certainty”.
mayor
bloomberg
(NY)
U.S. Const. art. III
28 U.S.C. § 1332 (focus on 1332(a), (b), (c) and (e))
Mas v. Perry (US 1974) p 364
French husband and MS wife sue LA landlord for 2 way mirrors installed into rental. Domicile estb by where you last intended to live
indefinitely. So even though living in LA, as students, probably will move.
Domicile = “place of true fixed, and permanent home and principal estb and to which he has intention of returning whenever he is absent
therefrom”
Twentieth century Fox v. Taylor (SDNY 1965)
Elizabeth Taylor couldn’t get diversity between Fox and her, b/c she was not domiciled in the US.
Strawbridge v. Curtiss (US 1806) no party on one side may be a citizen of the same state as nay party on the other side.
Dred Scott v. Sanford
 Scott was taken to IL, then Wi, where slavery was forbidden.
 Could he use diversity citizenship jurisdiction? NO! Scott is NOT a citizen of the US. (Tawney)
Supplemental jurisdiction (Part I)
Civil Procedure –YJK Fall 2008
Page 9 of 42
28 U.S.C. § 1367(a)
28 U.S.C. § 1441 (focus on 1441(a), (b), (c) and (f))
United Mine Workers of American (UMWA) v. Gibbs (US 1966) p 376
Union organizes boycott w/ 3P to cause harm on other union.
Pendent jurisdiction: up to discretion of DCt, not a right for π. “”common nucleus of operative fact.
o Can a state claim be added to a federal claim? YES.
o No diversity jurisdiction b/c UMW is a union, § 1332 looks at every member’s citizenship!
Aldinger v. Howard (US 1976) p 380
π could have sued all Δ in state court, denied juris over additional party with state law claim.
Finley v. US (US 1989) p 388.
Injured in plane crash, want to attach claim against city of San Diego but denied. Also, fed law claim cannot be brought in state ct.
Congress enacts 1367 in response!
Removal
Artful pleading: allows removal where federal law completely preempts a π”s state law claim… will not be permitted to disguise
the claim’s inescapably federal nature!
28 U.S.C. §§ 1446(a), (b) & (d)
28 U.S.C. § 1447
HYPO: π (NY) → 80K in PA D.Ct. → Δ (PA)
Question 1: does the federal dct have juris?
→ 1332 diversity? Yes. Amount? Yes. 4k1a authority? YES! PA citizen, so PA D. Ct. has authority.
Question 2: What if Δ is domicile of PA but currently residing in HI? Does it meet due process??
→ depends on the nature of the claim? balancing minimum contacts? b/c it doesn’t meet venue otherwise?
Question 3: what if π sues in state (PA) CT?
→ Δ cannot remove b/c he’s from the state! §1441 (b) says Δ cannot remove to federal court if he’s from that state. It’s limited b/c the
diversity jurisdiction created to keep things fair. A person from the state, in theory, doesn’t face bias/venue other barriers an out of state Δ
would.
Mesa v. CA
§ 1442 interpreted to require federal law defense (in order to remove??)
Caterpillar v. Williams (US 1987) p 400
Complete preemption doctrine: on occasion, preemptive force of statute in Δ is so extraordinary that converts an ordinary state
common law complaint into one stating a federal claim for purposes of the well pleaded complaint rule” (primarily for § 301
of LRM) Rationale and hold: p 404.
Venue; Change Of Venue; Forum Non Conveniens
28 U.S.C. §§ 1391(a), (b), (c) & (d)
28 U.S.C. §§ 1404, 1406
§ 1404: transfer from 1 federal ct to another; change of venue for interest of justice
§ 1406: dismiss or transfer if venue is not proper and there is another option.
Difficulty in getting motions (easy to hard)
forum non convens
transfer
FNC
lack of T Juris.
Civil Procedure –YJK Fall 2008
• court has pwer to hear but
can choose not to b/c it's
more sensible to be
ajudicated elsewhere (eg. a
foreign country)
• Also used before 1404
transfer existed.
1404/1406 transfer or
dismissal
• for US district courts
• court has pwr to hear but
can choose not to b/c more
sensible elsewhere
T. Jurisdiction
• constitutional permission
to hear case.
Page 10 of 42
Note on Transfers:
Can use them as much as you need. See Piper (removed from CA → Fed Ct → transfer to PA→ FNC to Scotland→ where it was
dismissed!)
Ravelo Monegro v. Rosa, 211 F.3d 509 (9th Cir. 2000) (on course portal)
Pleadings: the Complaint
Fed. R. Civ. P. 7(a)
Fed. R. Civ. P. 8(a), (d), (e)
Rule 8 (a)(2) short and plain statement of the claim
o To replace the old system that was complicated.
o Notice pleading was revolutionary!
Fed. R. Civ. P. 9(b)
Fed. R. Civ. P. 12(b)(6)
Fed. R. Civ. P. 84
Form 11 (rule book p. 140)
Note on Pleadings;
o
o
o
o
o
Before federal rules, it was highly complex and suits did not make it simply on procedural issues.
1930s, drafters of FRCP decided to simplify pleading Rule 8(a)(2) short and plain statement
Form 11: shows
1. Duty
2. Breach
3. Causal
4. Damage!
But how do you know how much is enough? For what kind of claim?
1993: CJ said you can’t require different standards for claims against local govt. unless you change the rule by getting on the board that
writes the FRCP changes.
Twombly v. Bell Atlantic Corp., No. 02-CV-10220 (on course portal)
Court tosses for lack of enough info in the pleadings to start discovery! What?! Totally tosses everything upside down.
No claim! (7-2) it did not adequately plead a conspiracy under the Sherman act.
π claims that once you go into discovery they can find the evidence. Sofar, only have that CEO of Quest said something about going into
competition being wrong.
Why would ct say there isn’t enough in the claim? Discovery is expensive/takes court time, and not enough to warrant that kind of effort.
 what about other future pleadings? Pro se litigants as well??
Erickson v. Pardus, No. 05-cv-00405 (on course portal)
Dude in prison, fills out a form pretty competently, but the court allows sum judge for lacking evidence.
To plead civil rights violation:
1. Δ acting under color of state law
2. Violated rights
π claims 8th Amend violation of cruel & unusual punish:
1. denial of adequate medical care: incarceration restricts access to health care so govt needs to provide it. To prove 8 th amernd
violation, need to prove: (1) serious med need (2) deliberate indifference
ct says: no claim of harm! From actions. Hasn’t pleaded substantial harm.
Influence of Twombly: need plausible facts.
SCOTUS could say:
Erikson gave enough (a)plausible facts (liver biopsy, hand enough Reject for lack of enough showing for serious medical need since
Hep illness to get treatment initially (b) discovery wouldn’t cost
standards don’t’ differ for types of claims and says endangered
as much., OR
life w/o giving evidence.
Conley v. Gibson standard (pre Twombly?): don’t dismiss unless there is NO SET OF FACTS→ use your imagination
Hold: vacate and remand ( a month after Twombly) specific facts not necessary; must accept as true… prose read liberally.
→core of cts concern? If think ct is concered about costs of discovery/defense and Δ’s decisions to settle
Stevens: can mitigate those difficulties other ways
Civil Procedure –YJK Fall 2008
Page 11 of 42
Assumptions about costs of discovery how many actual cases get dismissed vs. how many stupid allegations settled?
Rule 11 and related issues
Fed. R. Civ. P. 11
28 U.S.C. § 1927
Zuk v. EPPI of the Medical college of Pennsylvania (3 rd Cir, 1996)
Whoops, lawyer new to copyright law and botches everything up. How much sanctioning and fees? Sanction ok. Amt not.
Rule 11 says lawyer needs to look into both the (1) facts and the (2) law.
Time lapse between 1990—1994—1996
Δ responds:
1. SoL(3yrs) ran out hasn’t rented films in the 3 years prior.
2. Motions to dismiss (Rule 11c1a) ← court grants.
3. Copyright on book doesn’t copyright on film.
4. Move for attorneys fees under copyright law
5. Move for sanctions Rule 11(c)(2) safe harbor: allows π to amend/withdraw.
COA revews DCts sanctions says Ok to have sanctions, $$ should be recondisdered.
DCt said joint and several liability: Dr Zuk pays $6250 (can’t have double recovery); lawyer Lipman left.
USC 17 § 505 attorney fees.
§ 1927: failed duty to check into the law.
o Standard of review is pretty tought so that it’s diff to appeal DCt decisiosn.
o Before 1983 required willful violation , committee note in 1937 from equity rule 21, rare that ppl got sanctioned under Rule 11
o Here, we have empty head, pure heart: taking on substantive law that’s not your specialty; unlikely to occur, so not much deterrence
needed.
o Balances: 1993 committee note: empirical structure on how Rule 11 works.
Rule 11

Tort like provision to compensate Δ? No. it’s more about deterring bad lawyering. Cannot create a new tort under a rule.

There were more sanctions under rule 11 under civil rights claims b/c trying to apply the law in new ways

NOW, we have Rule 11 b 2 seems like a good idea to state your strategy in the beginning if applying law in new ways

Rule 11b requires you to flag those facts that can be discovered.
Rule 11 b--need to have factual and legal grounding in our answers
o What else would the lawyer need to think about? (other than the SMJ and statute of limitations…)
o Vogel: does EVERYONE have a duty to raise SMJ considerations. No…defense doesn't have to.
o BUT. Could a lawyer be sanctioned for-----? Omitting something? The lawyer DIDN"T do something to extend suit; he just didn't do
something to decrease amt of time spent on the suit. You should go to the client--we've got this issue, our answer is accurate but the
Plaintiff hasn't noticed the
PROBLEM; § 1927 only goes after the attorney not the client
o Even so, perhaps we don't want bad publicity about avoiding litigation in feds and waiting till Statute of limitations for state; and if you
end up in state; then makes you look really bad bad bad
o what is the lawyer's role? To persuade client to do the right thing? Just do what the client wants?
o Rules of professional responsibility are SET, but there's a lot of choice within it
o There is a large range within which lawyers can choose to act
Real life example:
o Invokes diversity juris
o Drafted a deliberately unresponsive interrogatory answer
o Nonresponsive answer 
o Judge fined the lawyer and the client for wasting court's time… 
o Goal: know the mechanics…
Responding to the complaint: amended pleadings
Fed. R. Civ. P. 12 Motions in lieu of an answer
Fed. R. Civ. P. 8(b), (c), (d)
Fed. R. Civ. P. 15
Civil Procedure –YJK Fall 2008
Page 12 of 42
RULE 12! What Defendants can do to help fight a claim.

Rule 12 allows for motions in lieu of an answer (used by Defendant)
o 12(b) (6)—motion to dismiss for failure to state a claim
o 12(b)(e)—for a more definitive statement since claim was so vague!
o 12(b)(f)—motion to strike; ct can strike from a pleading a) insufficient defense b)redundant c) immaterial, d) impertinent, e)
scandalous matter in the complaint
o 12 (g)—not only can join any rule 12 motions together; you really MUST in order not to waive
o 12 (h)(2): rule 12 motions you can raise a) any pleading, b) motion under 12 (c) judgment on the pleadings; c) at trial

Failure to state a claim

Joining person under 19(b)

State a legal defense to a claim
Types of Motions under Rule 12
12(a) Time to serve a responsive pleading: 20 days or 90 days (if service was timely waived)
(note: answer to a reply, within 20 days after court order to reply if court denies a motion or postpones disposition until trial, responsive
pleading must be served within 10 days after notice fo the court’s actionif court grants 12(2) motion for more definitive statement,
responsive pleading must be served within 10 days after the more definitive statement is served
12 (b) defenses by motion: (1) lack of subject matter jurisdiction, (2)-(5) lack of personal jurisdiction, improper venue, insufficient (service
of) process (6) failure to state a claim (7) failure to join a party under Rule 19 pre-answer motions must be made before a responsive
pleading is filed when a responsive pleading is allowed. If responsive pleading is not required, opposing party may assert a defense to that
claim at trial.
12(c) motion for judgment can be filed after the pleadings are closed
12(d) 12(b) 6 or (12) c motions that raise issues outside the pleadings must be treated as one for summary judgment
12(e) motion for definitive statement must be filed before a responsive pleading and point out the defects complained of. If the court orders
more definitive statement, party must comply within 10 days or other time dictated by the court.
12(f) motion to strike: within 20 days after being served with the pleading or on motion made by party before responding to the pleading
or court may strike on its own
12(g) Joining Motions: motion may be joined with any other motion allowed by Rule 12
Limitation – all motions must be joined except lack of subject-matter jurisdiction, failure to join under Rule 19 and 12(b) 6 which may be
raised at any time, in any pleading allowed or ordered under Rule 7a. Additionally, lack of subject-matter jurisdiction can be raised at any
time, and the court may dismiss the action once it determines there is lack of subject-matter jurisdiction.
12(b) 2-5 are waiveable defenses and are thus waived if not moved upon in the first pre-answer motion or first answer
Motion
Lack of subject-matter jurisdiction;
 Failure to state a claim
 Joining person under 19(b)
 State a legal defense to a claim
12 (b) 2-5
When can you raise? For what result?
At any time; for ct to dismiss claim
a) any pleading,
b) motion under 12 (c) judgment on the pleadings;
c) at trial
Pre answer motion, or if none, then the answer.
What rule provides that?
Rule 12 (h )(3)
Rule 12 (h)(2)
Rule 12 (h)(1)
faced with complaint
12b pre answer motion
(with or without the answer)
ignore
bad idea: leads to a default
judgment
forum state didn't have
juris--> you're OK
forum state did have
jurisdiction--> they can get it
executed where a court has
juris over you (FULL FAITH)
12b motion granted by court
12bmotion rejected by court
scott free!
10 days to answer on the
merits
answer on the merits
line by line
settle out of court (most
common)
remember to counter all
allegations or at least say
you don't know or it will
become accepted as true
(look at RUle 8 on this)
Responses to Allegation
Civil Procedure –YJK Fall 2008
Page 13 of 42
done paragraph by paragraph
a. Denial—puts allegation in issue and creates an issue of fact
1. Burden of proof to P
2. Permits D to intro evidence to disprove allegation
3. Can deny b/c of lack of info or belief
4. Rule 11 (b)4—person signing answer certifies that denials of fact are warranted on evidence or reasonably based on lack
of info or belief… can’t be totally just to waste time!
5. 8(b)—have to be specific about what part/facts you deny so that P doesn’t go looking to prove everything!
6. Most of the time, denial is sufficient to intro new evidence to show inconsistencies
b. Admission—estb allegation as true for the case;
1. Renders evidence tending to prove admitted issue unnecessary, renders it inadmissible
2. Power to P to figure out what he wants left out (eg: drunk driving)
c. Silence—same effect as an admission.
d. Rule 8 (c)—intro new evidence as part of an affirmative defense
e. Counter claims—claims filed at the same time as an answer, but a claim by D on P!
f. Unverified complaintsanswer with general denial;
verified complaint must be answered specifically, and be verified as well
1.
2.
3.
4.
Liberal pretrial amendment policy:
 allows pleaders to correct mistakes or reflect facts revealed in discovery
 Rule 15(a) allows revision “as a matter of course” within 20 days of initial pleading
 After time revision allowed, can revise with WRITTEN permission from other party or Court
 It’s better to get revisions in SOONER, rather than later
 When P’s new amends would require new notice and substantial discovery, amend DENIED
Delayed challenges to the pleadings: historical background
Person challenging the pleadings need to show 1) insufficiency of pleadings 2) insufficiency made the preparation of his case more difficult
Amendments to conform to the evidence under Rule 15(b)
Two situations amendments may be made:
a) If issues not raised by the pleadings are tried, 15(b) says treat AS IF raised in pleadings
b) If a party objects to the intro of evidence at trial b/c not within framework estb by pleadings, allows amend of pleadings “when
presentation of the merits of the action will be subserved… and objecting party fails to show that it would prejudice the party in
maintaining action”
Rule 15 (b) and 16(e) in tension b/c 16(e) says no change to pretrial order unless “manifest injustice”
Effect of amended pleading on prior pleadings?
complaint
•Rule 8 simple and plain
DF moves 12b6 to dismiss
•auto extension of time
to answer.
•NOT a pleading (Rule 7)
•so Rule 15 says you can
still amend after it.
DF answers
•cuts off PL's right to
amend and now PL
needs Ct's permission to
amend the complaint.
Worthington v. Wilson (DCt IL, 1992)
Rule 15 c relation back and amended pleadings doesn’t allow π to change the name. screwed over b/c he got the name of cop wrong, also
pushed limit by filing a day before SoL ran out!
Chrono
Feb 25, 1989 – Worthington arrested by cops who were mean and ignored his injured hand
Feb 25, 1991—Worthington files complaint in Circuit Ct of Peoria against unknown cops
June 17, 1991—Worthington amends complaint to include names, Wilson and Wall
D moves to dismiss amended complaint because statue of limitations had run out under §1983
P’s Arguments
 relation back to complaint is Illinois Code of Civil Procedure
 requirements of rule 15 (c) met
 should not be punished by withholding of info by Police Dept.
D’s Arguments
 Statue of limitations is 2 years and amended complaint not filed until 4 mnths after
 Amended complaint can’t relate back under Rule 15(c) from Schiavone v. Fortune (1986)
 renaming of fictitious parties is not a “mistake” under 15 (c)
Court’s Opinion
A. D’s arg about needing to notify D before statute is OLD and NO GOOD; Amended rule 15 (c) in 1991 to prevent EXACTLY this
kind of silly D! overturns the Schiavone precedent.
B. Mistake: bound by precedent to not relate back since it wasn’t a mistake although Ct doesn’t see how it matters.
Hold: motion to dismiss GRANTED??!! YJ doesn’t see how it’s possible!
Civil Procedure –YJK Fall 2008
Page 14 of 42
Hold: ∆ to dismiss granted because under Schiavone v. Fortune, a ∆ must have notice of an action before the statute of limitations period
runs. Π’s amended complaint naming ∆s by name was filed after the statute of limitations expired, so ∆’s motion must be granted unless the
amendment relates back to the filing of the original complaint.
· Under old FRCP 15(c) which was construed in Schiavone, π’s amended complaint would not related back merely because ∆’s did not
receive notice before the statute of limitations period expired.
·
New FRCP 15(c) has been amended to *permit relation back when the amended complaint arises out of the same conduct contained in
the original complaint and the new party, within 120 days of the filing of the original complaint: (1) receives notice of action that will not
prejudice its defense (2) knew or should have known that but for the mistake concerning the identity of the proper party, the action would
have been brought against this party
·
*7th circuit mistake language of 15(c) does not apply to a substitution of actual names where the true names were not know when the
complaint was filed. Thus, π cannot meet the relation-back test because at the time the original complaint was filed, ∆ names were unknown
and the amended complaint which does not relate back on that basis, was filed after the statute of limitation.
·
Note that ∆’s concede that they were aware of the pendency of the law suit within the 120 days, so if the mistake clause was construed
to include the naming of unknown ∆s, then π would have relate back claim.
∆ also claims that the issue of relation-back is governed by state law on theory that *because federal courts borrow state statutes of
limitation, they must also borrow state rules of procedure that increase or decrease statutes of limitation, such as toling and relation-back.
o
7th circuit has held that federal courts absorb state law only when federal law neglects a topic. Relation-back is clearly governed by
FRCP 15(c) so there is no basis for applying state procedural rule.
Hypos (p. 626):
1. π files a complaint, ∆ files a 12(b) 6 to dismiss. Motion is denied. ∆ then files a 12(b) 2 for lack of personal jurisdciton and 12(e) for a
more definite statement.
Court will deny the motion because under 12(g)2 and 12(h) 1 a, a party waives these defense by omitting them from its first motion and all
motions (with exceptions for lack of subject-matter jurisdiction, 12b(6) and Rule 19, can be brought at any time)
2. π files a complaint, ∆ files motions under 12(b) 2 and (b) 5 to dismiss and motions are denied. ∆ then files motion for improper venue and
plaintiff moves to strike the defense of improper venue from the defendant’s answer.
Court will grant π motion to strike because ∆ cannot move for improper venue – Rule 12 (g) 2
3 .π files a complaint. ∆ files an answer denying principal claims of the complaint. ∆ later moves to amend answer to assert defenses for lack
of personal jurisdiction (not ok), failure to state a claim (ok) and Rule 19 failures (ok).
4. Motion for lack of subject-matter jurisdiction can be brought at any time, even after an answer. If ∆ had simply suggested that subject
matter jurisdiction was lacking, the court may conduct its own inquiry and raise that issue on its own,
Joinder of claims: Supplemental jurisdiction (Part II)
Fed. R. Civ. P. 18
Fed. R. Civ. P. 42
Fed. R. Civ. P. 13 (focus on 13(a) & (b))
28 U.S.C. §§ 1367(a) & (c)



Limit of the subject matter juris is stronger than liberal allowance of joinders
18(a) allows the joining of claims (for efficiency)
42 (b)—Severance and consolidation: courts can separate issues in a claim if it
makes it easier and it can conversely, consolidate if it makes it easier.; decision
to sever or consolidate not reviewed until after final verdict
13 a compulsive
counter claim: related
enough for jurisdiction
(use it or lose it b/c of
effects of Claim
Preclusion).
jurisdiction under
1367. the space
between is where the
judge can grant
permissive counter
claim or NOT!
Joinder 18 A
o
o
Joinder is OK, but remember, Rule 82 doesn’t extend limit of SMJ, T Juris?
Rule 42 b: ct can separate into several claims and 42a consolidation of claims.
Murky whether joint or consolidation
13 a compulsive counter claim
o
Use it or lose it!
13b permissive counterclaim,
o
o
you may be permitted to bring if related enough even though it’s not related enough for jurisdiction.
BUT you never want to be the person who has to ask the court for permission b/c 13 F judge may not allow it!
**13 f and 15 a seem redundant. Will probably be amended.
Civil Procedure –YJK Fall 2008
Page 15 of 42
Jones v. Ford Moter Credit co. (2nd cir , 2004) p653.








Jones alleges that there was racial discrimination when they mark up rate to assess “non-risk” charges
Ford files a state-law counter claim for the amounts of unpaid car loans
P moves for dismissal based on the lack of fed sub matter juris on the independent claim
Compulsory counterclaim: claims that arise from the same transaction and must be raised if you don’t want to forfeit later
Permissive counterclaim: any claim against the opposing party NOT arising out of the same transaction
Judge says: permissive counter claim.
Rule 13(a) Logical relationship test:
Hold: space between 13a and 1367 allows for Permissive counter claims b/c sufficient factual relationship
Fed. R. Civ. P. 13(g)
Fairview Park excavating co. v. Al Monzo Const. (3rd Cir, 1977) p 665
Crossclaim dismissal was erroneous? YES, because “original claim was dismiss on nonjurisdictional rather than jurisdictional grounds”
Fairview(OH was a subcontractor for Monzo (PA), contractor to Robinson Township (PA); Fairview wasn’t paid so filed claim against
Monzo and Township; F--> M & T
Township defend with PA law; PA is liable to contractor, not subcontractor
Monzo crossclaim against T.CT grants on first day of trial CT dismiss Monzo’s cross claim b/c absence of diversity, lacks SMJuris
Fairview wins against Monzo. CT gets ancillary jurisdction even though all the parties to the cross claim were citizien of the same state (J.
Aldrich in Atlantic Corp. v. US)
Joinder of parties
Fed. R. Civ. P. 20
Fed. R. Civ. P. 19
necessary under 19a?
Fed. R. Civ. P. 24
What's the purpose behind rule 19?
Based on equitable principles. Ultimately comes down to what the court thinks is fair
Rule 19 gives the DEF a chance to change the suit; PL doesn't have the last word
DEF could also say hey! It's NOT MY FAULT, it's this other person (Owen, Kroger)
Rule 19a --forcing PL to add a third party to diffuse liability from Δ
Joinder analysis
19a analysis is very similar to the 19b analysis…
Same factors are important to both tests BUT
19a is easier to meet than 19b
Yes--> then is it feasible?
YES--> join them.
No--> forgettaboutit.
NO--> 19b indispensible?
Kedra v. City of Philadelphia (E.D. of PA, 1978) p 673
no--> then forgettaboutit.
A whole bunch of ppl joined together.
yes--> then dismiss or
(temple: deny motion and
something
keep moving with the
Dec 22, 1975 π s were arrested and beaten; family called to police and also interrogated
suit)
Dec 29, 1975 Δs goes to π homes and harasses
π s charged and acquitted of murder, burglary, stolen goods “without just and probable
cause”
Jun 1976 π s arrested again
Mar 1977 π s threatened
Nov 1977 π s file complaint for $10,000 compensatory and punitive damages + attorneys fees
Δ : Dolores cannot file for claims not hers;
CT: frivolous! 17(c) guardian gets to file for minors
Δ: improper joinder under 20(a), do not arise out of same transaction!
Ct: b/c unification of claims for convenience, efficiency, it’s all reasonably related, even over time, And proper!
Rule 20 (b) says: CT can separate trials and do things so…defer decision till after discovery; Better to deal with the problem after discovery has
been completed and the case is ready for trial
Temple v. Synthes Corp. (US 1990) p 684
HOOHA!
FACTS &
PROCEDURE
Temple v. Synthes Corp (SCOTUS 1990)
If it’s a matter of joint tortfeasors you don’t HAVE to join under 19(a); it’s PERMISSIBLE though
1. Temple (MS) gets plate and screw implanted into spine, it breaks, sues Dr and hospital in State CT; sues
company in Fed CT in LA
2. Synthes files motion to dismiss, failure to join under Rule 19; CT orders π to join or get dismissed
3. Fails to join; CT dismisses with prejudice
Civil Procedure –YJK Fall 2008
Page 16 of 42
4.
ISSUE
RULE
& HOLD
REASONING/RA
TIONALE
CoA affirms; b/c claims overlapped and DC had not abused discretion in ordering joinder
Did CT error in dismissing to label joint tortfeasors as indispensable parties under 19(b) and dismiss?
YES, “ a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against
another with like liability; Reverse and Remand
because not necessary for all joint tortfeasors to be named Δ in a single lawsuit
Joinder of parties, cont’d; supplemental jurisdiction (Part III)
Fed. R. Civ. P. 14 (a) & (b) Third-Party Practice
28 U.S.C. §§ 1367(a) & (b)
Fed. R. Civ. P. 4(k)(1)(B) (review)
3.
4.
5.
Notes on Compulsory joinder of parties under rule 19
terminology and present operation of Rule 19:
 not necessary in order to have a suit; but necessary if meets 19(a 1-2) and must be joined if feasible;
 if cannot be joined, then courts need to figure out if indispensible, if both AND no jurisdiction then dismiss
application of rule 19 depends on factual context
 from Provident Tradesmens Bank & Trust v. Patterns (SCOTUS 1968)
 Cts need to look at factors of the case!
party to be joined if feasible; 3 factors, if ANY satisfied, absent party be joined!
a) incomplete relief: difficult to apply!
b) impair or impede an interest as a practical matter: Indian casinos!
c) double, multiple, or otherwise inconsistent obligation: ?
indispensable party under 19b: “are those without whom a final judgment may be wholly inconsistent with equity and good conscience”
personal jurisdiction over Lord’s Jewelers: why did Valley willingly go to Missouri??
Rule 19 and supplemental jurisdiction: supplemental juris not avail under § 1332 for Rule 19, excluded by § 1367; but avail if SMJ based
on federal question (duh?)
9. Reasons for inability to join a party “to be joined if feasible”:
10. Relationship to rules 20 (a0 and 14(a)
a) Alternatives under the rules
b) Tactical considerations
6.
7.
8.
Helzberg’s Diamond Shopsv. Valley West Des Moines Shopping Ctr ( 8th cir,1977) p 685
FACTS &
PROCEDURE
ISSUE
RULE
& HOLD
Feb 3 1975 K to lease a jewelry store; only 2 others allowed, 3 total
Nov 2, 1976 Δ lease to Lords as a “retail specialty jewelry store”; but Lords intends full jewelry
π seeks preliminary and permanent injunctive relief restraining Δ in Missiouri Fd. Ct.(personal juris under long
arm, diversity and meets amt in controversy)
Δ moves to dismiss under Rule 19; failure to join Lords; CT denies motion
Δ appeals 1) denial of dismissal from Rule 19 2) lacks specificity in acts to be restrained
Was DCt wrong?
DC properly denied motion to dismiss for failure to join indispensible party b/c Lords was not indispensible. DCt
correct: Lords to be joined if feasible (19a2) BUT NOT indispensible (19b)
Ct usually doesn’t review motions to dismiss; but …
Indispensible = a)made on case by case AND b) factors from 19b
 Extent to which judgment rendered in3P absence might prejudicial to 3P or Δ
 Consider ways in which prejudice to the 3p can be lessened or avoided
 Judgment rendered in absence adequate
 π have adequate remedy if action is dismissed for nonjoinder?
Does Missouri have T jurisdiction?
No min contacts, 
4k1a doesn't work b/c...
4k1b "bulge juris" "4k1: Serving summons or filing a wiaver of service estb personal jurisdiction over a DF (B) who is a party joined under
Rule 14 or 19 and is served with a judicial district of the US and not more than 100 miles from where the summons was issued." (p 26)←
doesn't work either b/c L was in a city that was 187 miles away
Possible rationales for Diamond shops:
Lord's interest is impeded
VW could have contradictory obligations
REASONING/RA
TIONALE
Civil Procedure –YJK Fall 2008
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So then 19a? YES! But NOT feasible to Join b/c of T juris problems, SM juris considerations (not a problem here), problems with venue?,
(remember, venue and T juris are waivable, but SM juris is NOT waivable!!)
Owen Equipment& Erection co. v. Kroger (US, 1978) p381
π’s husband killed by electrocution when crane’s boom too close to wire
π (IO) sues Omaha Public Power District(NE) (negligent power line) in Fed Ct. diversity
OPPD files 3P complaint against Owen Equip b/c crane was operated by Owen.
DC grants OPPD sum judgment; so case is only Owen and π
π amends complaint to sue Owen as well; turns out Owen is also Iowa so DC reserved decision on motion to dismiss for lack of jurisdiction;
Jury finds for π ; DC denies motion to dismiss
CoA affirms dismissal
Allow requirement of complete diversity to be circumvented as it was would simply flout congressional command; REVERSE! Mrs. Kroger
gets nothing in Fed Ct!
Owen meets the14a1: "non party who is or may be liable to (DF) for all or part of the claim against it" 
No diversity between Kroger and Owen, so no independent basis for SMJ 
We don't have ss1367 
Mrs. Kroger should have been thinking about lack of SMJ As soon as! OPPD brought in Owen. 
As a practical business lawyer should have KNOWN from the DF's answer denying that their principal place of business
Doesn't think rule 11 would allow sanctioning Owen's lawyer b/c the answer wasn't misguiding or lacking in respect to the rule.
Class actions
Fed. R. Civ. P. 23
28 U.S.C. § 1367
Introduction to Class Actions





FRCP 23; aka representative suit/action
Plaintiff class: a class represented by individual π
Defendant class is less common although possible
Special b/c decision can be binding on members who are absent, unnamed, un-notified; class members don’t have chance to challenge
the representatives
b/c of risks to class members--> law only allows class actions as justified in limited circumstances
a) advantage of collective basis are substantial AND
b) sufficient steps have been taken to ensure adequacy of representation
The Modern Class Action Rule: An Introduction

Rule revised in 1966 with 3 goals:
1) Define in a practical way kinds of cases where the prospective benefits of class suit outweighed its disadvantages
2) Specify clearly that all class suits would be binding and delineate the scope fo their preclusive effect
3) Ensure that class actions were conducted to maximize their advantages and ensure fair representation of absent members
Rule 23(a): prescribes 4 basic elements


a) Numerosity
b) Commonality
c) Typicality
d) Adequacy of representation
Certification: procedure where court is required to determine whether the requirements for class action treatment satisfied and appoint
class counsel
23 (a & b) says WHEN you can have class action; 23 (c-h) say how to keep it fair!
Note on Damage Class Actions and the Problem of Mass Torts
1.
Mass Torts
 2 kinds: a) one event, many injured b) multiple but linked events over long period and affects many people (product liability
 Concern that it would degenerate into multiple suits
 But then in 1980s massive # of suits from asbestos
 Castano and others show resurgent skepticism
 Opinon in telectronics Pacing systems (OH 1997) Class certification magnifies and strengthens # of unmeritorious claims;
aggregation of claims makes it more likely that Δ will be found liable and results in higher damages
2.
Supreme Court’s Approach hasn’t ruled out mass torts but also caution needed when stakes are high for indivs and likely to have
disparities among class members
 Decertified 2 cases that it saw:
1. Amchem Products Inc, (refuse to allow settlement class in asbestos )
Civil Procedure –YJK Fall 2008
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3.
2. Ortiz v. Fibreboard (1999) refuse 23b1B limited fund “settlement class”
Considerations bearing on the use of the class actions in mass tort cases that drafters didn’t consider
 Relative advantage between π and Δ
 Alternative avail to π is: offensive non-mutual collateral estoppels (when indiv claims are big enough, have a few
test cases and then use those wins to bind future claims
 Δ prefers individual cases b/c it forces each π to prepare a case at a cost
 Class treatment => more liability for Δ b/c some individs may not have pursued claim
 Efficiencies of scale avail to π + financial exposure to Δ + financial capacity of class counsel  class is in a better
position collectively
4.
Limited fund class actions in mass tort cases: relationship between bankruptcy and a class action under Rule 23 (b)1(B)
 Ortiz v. Fibreboard Corp (1999) SCOTUS decertified class on rule 23b1B;
 3 characteristics necessary to keep as a class: 1) funds avail were inadequate to meet aggregate claims 2) dedication
of the netire limited fun to satis of claims 3) equitable treatment of all claimants
5. Differing state law standards for the certification of nationwide and mass tort class actions
Even if the feds don’t like class action, states sometimes allow
Note on Notice and Opt Out Rights in Class Actions
1. Notice under Rule 23 (b) 3 Notice comes under 23b3 not 23b1 and 2 because…
Notice in Rule 23 (b)(1) and Rule 23(b)(2) cases
 courts generally don’t require notice BEFORE class certification
Note on Judicial Review of Class Action Settlements
3. value of the consideration offered in settlement
4. evidence concerning the fairness of class action settlements and the role of judicial review
5. Legislative regulation of class action settlements
Note on Settlement classes and adequacy of representation
1. What is a “settlement class”?
2. Advantages and disadvantages of the settlement class
3. Structural conflict and the settlement class
4. Settlement classes and the revision of Rule 23
Rule 23 (in class notes)
o About the same age as us (1980s)
o Exploring the interlink between substance and procedure….
o If you can bring class actions, automatically increase the plaintiff's LEVERAGE
o Δ s become willing to settle actions that individually they wouldn’t' have to.
o Using Rule 23 for MASS TORTS
Rule 23 Requirements:
o Numerosity: too many Π that joinder is not possible
o Common questions of law/fact
o Claims or defenses of the REPS are common to class AND ← is there a conflict of interest??
o REPS will fairly and adequately protect the interests of the class ←do they have a good lawyer??
Twombly seems to meet requirements of 23A 1) numerosity (millions!) 2) common questions (yes) 3) reps seem to rep the class; 4) lawyer seems
to be OK
RULE 23b TYPES OF CLASS ACTIONS (CHOICES)
o Separate actions CREATES RISK (usually for limited fund cases)
o Refused to act on general grounds (injunctive relief; usually civil rights)
o Questions of fact/law COMMON TO CLASS PREDOMINATE over questions affecting individuals (use for mass torts; damages;
consumer class action)
Twombly seems to be 23B3
23b1b language may sound familiar b/c it also sounds like rule 19 language…reminiscent of necessary party…. Don't need opt out
23c instructs judges how to see the suit…how it should all go down!
Important changes in 2003 on 23e
23f you can TRY to get an interlocutory appeal on class action certification; ct can permit NOT A RIGHT!
23g appointing the lawyer--what the court must do when assigning a lawyer
Exxon Mobil corp. v. Allapattah Services, Inc (US 2005) Suppl. p30
Class rep(for 10k unnamed class members) → Exxon
Class rep meets diversity amt in controversy and diverse citizen to Δ
Prior to 1990 worried about amt? YES. SCOTUS said worry about each unnamed class emmber’s amt even if not citizenship if it’s a 1332
state law claim (See Zahn)
Here, Rule 23 class actions have no problem for $10 claims for federal question 1331, check 1367a yes!, no 1367 b exceptions for class
actions, so great! HOWEVER, circuit split on this issue!
Courts can look at how 1367 b prevents Δ from forcing π to bring mother in. so why does ct allow sup jurisdiction rule 20?
Civil Procedure –YJK Fall 2008
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Starkist
 9 yo girl meets amt of controversy test for SMJ on diversity.Family wants to join, but don’t meet the amount.
 Dct said family cannot join b/c didn’t meet the amount.
 Rule 20 a says the family can join even though it doesn’t seem to meet amt in 1332… does that matter for 1367?
o 1367a ) so related claims in action form same case or controversy? Yes
o 1367 b) no sup juris on those made Δ under rule 20, but not those who want to be π.
 Prior to 1990 Snyder v. Harris said you cannot add up claims (aggregate) to meet the amt in controversy.
 Does it change now that we have 1367?
Finley
 Effect of 1367? They are able to join and it was the purpose to have them join!
Ct says language is clear, overrules Clark and Zahn.
Where you have multiple parties who fail diversity just b/c of amt being small, 1367 a allows supl juris and 1367b doesn’t disallow! See
Allapatah. BUT if it’s a diversity of citizenship problem 1367a says it’s a contamination of diversity so it’s a problem and cannot bring mom
in (See Starkist).
Hypo on Supplmental Jurisdiction
F(NY)→100 k state law claim in fed ct→ H (MA)
Question 1. Can he bring this in federal court? Yes, diversity and amount in controversy.
Question 2. Counterclaim for 50k? Joinder Rule 13a compulsory counterclaim, but doesn’t have aSMJ under 1332 since amt is not enough,
Well, 1367a supplemental jurisdiction allows it! And doesn’t exclude it in 1367b.
Har an do this b/c he’s the Δ, been sued. π, who decided to sue in federal ct is constricted on additional claims but Δ didn’t choose so let him
counter w/ suppl juris.
Question 3: now, H (MA)→ 14 a impleads→ W(MA) is that OK? Yes.
Question 4: then can F→ W for 100k? YES! b/c 1332 allows when amt and diversity is met, BUT
Question5: if F→ 1 for 20k? NO b/c it doesn’t meet amt in controversy under 20b or 1367
Discovery
Complaint
Filed
A. Complaint
served on DF
B. DF
appears
C. at least 21 days before
E.
• Rule 26 f parties
confer
• proposed discovery
plan
• Rule 26 d generally
no discovery before
this meeting.
D. within 14 days after C.
• parties submit to ct
proposed discovery
plan
• rule 26 a 1 parties
exchange initial
disclosures
E. earlier of 90 days after
B or 120 days after A.
• rule 16 scheduling
order meeting.
Fed. R. Civ. P. 26 -- focus on: 26(a)(1), 26(b)(1), (2) & (4), 26(d), 26(e), & 26(f)
Fed. R. Civ. P. 30 -- Casebook pp. 824-25
Fed. R. Civ. P. 33 -- Casebook pp. 825-26
Fed. R. Civ. P. 34 -- Casebook pp. 826-27; Supp. p. 70
Fed. R. Civ. P. 35 -- Casebook p. 827
Fed. R. Civ. P. 36 -- Casebook p. 827
Discovery is designed to make claim clearer
 Interrogatories: asking who/what/when where, written Qs sent to the other side.
 Document Request: to figure out what evidence you have, etc.
 Depositions: stenographer, videotaped, questioning witness
Purposes
1. Get on record, clarification of issues muddled in doc review
2. Info gathering
3. Efficacy as witness on trial
4. Psych out other side in general (with great witness and push them to settlement!)
Rule 26 a Required disclosures post 1990: sicne a lot in initial there are now limits to discovery
Civil Procedure –YJK Fall 2008
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26a1A/B
26a1Ai: don’t have to disclose negative info.
Even if you know FRCP, you need to keep in mind local rules and judge’s practices.
Latest amendments adapted discovery to efiles.
You may have to commence with discovery before court rules on your motion to dismiss
But you can also get Rule 26 c protective orders if you don’t want to start discovery until you HAVE to?
Before 2000, 16b1 used to be broader (any material relating to subject matter), now supposed to be more broad but it’s actually more
limited?
Also note: Rule 15 lets you amend your claim if you find more claims during discovery, BUT since Rule 26 limits the scope of discovery,
perhaps it’s less likely now to turn up extra info to make extensive/all claims.
**2007 amendment to FRCP: Rule 76 pretrial conference required as a scheduling party.
The 2006 E-Discovery Amendments: (slides on 10/29)
Rule 16(b) scheduling order may address:
• Electronic discovery
• Any agreements by parties regarding assertion of privilege and/or work-product protection
Rule 26
– Initial disclosures include electronically stored info
– Rule 26(f) conference should address any issues relating to preserving discoverable info
– Proposed discovery plan includes e-discovery & any agreements regarding assertion of privilege
– 26(b)(2)(B): A “two-tier” system for e-discovery:
(1) Party need not provide e-discovery from sources not reasonably accessible b/c of undue burden or cost.
(2) Requester may move, & responder has burden to show not reasonably accessible
(3) Even if not reasonably accessible, court may compel discovery if requester shows good cause. Court may impose conditions
– 26(b)(5)(B): Procedure to notify of inadvertent production: Receiver must promptly return, sequester or destroy; can submit sealed copy to
court for determination
Rule 33: Interrogatories to Parties
– 33(d)’s provision regarding business records includes electronically stored information
Rule 34: Production of Documents and Things and Entry Upon Land for
Inspection and Other Purposes
– 34(a): Scope: includes electronically stored info
– 34(b): Format of e-info:
• Requester may specify form in which e-data are to be produced
• Responder may object and use a different form
• Default: form in which info is ordinarily maintained or a reasonably usable form
Rule 37: Failure to Make Disclosure or Cooperate in Discovery; Sanctions
Civil Procedure –YJK Fall 2008
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– New 37(e): The “safe harbor”:
• Absent exceptional circumstances, may not sanction party under these rules for failing to provide electronic data lost as a result of routine,
good-faith operation of information technology system
Rule 45: Subpoena Conforming amendments regarding electronic discovery
Attorney-client Privilege
o How do you know if ti’s confidential?
o Is one of the senders/receivers a lawyer?
o Is it a privileged communication (who? Content? Relationship? )
o Things told to lawyers in seeking services also protected.
o (1) client-lawyer about legal issue? Yes.
o client reveals to a 3rd party then it’s not privileged. (paralegals, translators don’t count)
o broader than work product protection, applies all th time, as long as 1)legal advice 2) sought in confidence 3) client.
It's a big deal to invoke at/cl priv b/c it’s not discoverable unlike work products Rule 26b3
Work products: was there anticipation of litigation or for trial?
However, WP is alo broader protection in that it protects even those docs that lawyer produced w/o client.
o HYPO: awesome document that firm wrote about IRS state that kicks client’s ass?
o What if IRS said, but firm used public info! IRS can’t do the same w/o undue hardship??
o Counter with: too bad you should know yourown rules. Have your own lawyers.
o Purpose of WPP: zone of privacy for lawyers.
Waiver: you can waive both WPP and at/cl privilege by disclosure.
o ATCL priv: any disclosure to a 3P (your relative, etc) and it could be the one doc or the entire subject matter. ..but note, it’s very honorsystem like, since the other side isn’t going to track down your relatives.
o WP: disclosure to 3P is NOT disclosure ONLY IF pretty certain 3P not disclose to opponent
o Rule 26 g also discovery responses have same standards as rule 11.
o Privilege doesn’t work as a sword, just a shield.
Work Products include:

Statements from witness,

notes taken at meetings with witnesses and others

Memoranda summarizing legal research
Zubulake v. UBS Warburg LLC (SDNY 2003) p 828
Edocs and costs!
Who pays for discovery? Traditionally, each party pays for each cost of producing. However, with e docs, cost shifting for back up tapes
created here.
7 factor test 838
Do the rules now, in 1006 allow Zubulake to get discovery from UBS?
The opinion may be useful to determine what factors/how factors work even w/ the new 26b2 framework.
Upjohn co. v. US (US, 1981) p 845
At/cl privilege and wpp.
H; lower level employee can invoke attorney client privilege (FRE 501)
Issue: who exactly is the client?
RULE: court doesn’t tell us WHO at/cl extends to. In this case, extends to ppl w/ the information, only to communicatios, facts are not
privileged. D ct. test of at/cl priv only to officers w/ substantial role in legal matters is WRONG.
Rationale for the rule/privilege: lawyers should have all the info needed to give sound legal advice.
Paradox: extend privilege to lower level employee to give corp info but employee is not covered by corporate lawyer since attorney for corp
not them, and could get fired from the info revealed.
Fed. R. Civ. P. 26(b)(5)
Fed. R. Civ. P. 26(b)(3), 26(c), 26(g)
Fed. R. Civ. P. 37
Fed. R. Evid. 501 (on course portal)
Rule 501. General Rule CREDIT(S) (Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1933.)
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme
Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed
by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of
decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State
law.
Civil Procedure –YJK Fall 2008
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Fed. R. Evid. 612 (on course portal) Writing Used to Refresh Memory
Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh
memory for the purpose of testifying, either--(1) while testifying, or(2) before testifying, if the court in its discretion determines it is
necessary in the interests of justice, in adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the
witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing
contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so
related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made
available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court
shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking
the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
Hickman v. Taylor (US 1947) p 856
Tug owners.
Feb 7, 1943 tugboat (JM TAYLOR) sank in the Delaware river in Philadelphia while towing a car float;
5/9 crew members died. (4 of those settled. The last one's case is this)
3 days later, the tug owners enlisted a law firm; Fortenbaugh is a lawyer at the firm.
After a public hearing on Mar 29, Fortenbaugh interviewed the surviving crew members (witnesses) separately, made notes,
Nov 26, 1943, Π files under Jones act.
How much can a party inquire into the other party's attorney's work/preparation?
Whether the district court erred in requiring the production of documents obtained or prepared by retained counsel in anticipation of
litigation absent necessity or other circumstances.
So, the DCt erred. He didn't have to produce the info.
Resolution prior to trial: Summary Judgment
Fed. R. Civ. P. 41 Dismissal of Action
dismissal of action (voluntary when π just doesn’t want to anymore; involuntary when π is slacking off or using action to harass Δ )
Disposition without trial
A.
Introduction (most cases today do not get to trial 1.8%)
NOTE ON DEVICE TO AVOID PLENARY TRIAL
1. Dismissal for failure to state a claim, demurrer, and judgment on the pleadings
 Δ uses 12b6 to say that π didn’t state a claim that can be granted relief (lack of evidence, or lack of relief as a matter of law)
 Demurrer is the state law 12b6
 Both can use 12c AFTER pleadings to ask ct to decide then.
 All don’t test the facts at all.
2. Voluntary dismissal
a. By plaintiff or by stipulation; 41a1i
 41a1i : π may voluntarily dismiss suit by filing a notice of dismissal, as long as before Δ answers or move for sum
judgment.
 This is without prejudice; 2nd time is WITH prejudice
 Sometimes, states are even more liberal!
b. By order of the court; 41a2, cts can dismiss without prejudice
 Sometimes conditions include π paying for Δ’s legal costs
 Can’t reverse unless abuse of discretion
 If Δ filed counterclaim, can’t dismiss unless counterclaim can remain after dismissal
3. Involuntary dismissal for failure to prosecute [41b]
 If π is slacking off in the suit then ct can dismiss
 Sometimes used when obvious π is only using it to harass Δ
 Has res judicata effect
4. Default and default judgment
 55a entry of default: clerk noting that Δ failed to plead
Set aside for “good cause shown” (ie. Pennoyer v. Neff?)
 55b entry of judgment by default: π wins; it’s on the merits and has res judicata effect
 60b allows for setting aside judgment of default
Fed. R. Civ. P. 55 Defaults judgement
55a ( failing to show up and answer); default judgment 55b (π wins on the merits, res judicata effect)
Fed. R. Civ. P. 60 Relief from Judgments and Orders
Fed. R. Civ. P. 56 Summary judgments
used mostly be Δ since they are the best position to say hey! A jury won’t be able to find that based on your evidence.
NOTE ON SUMMARY JUDGMENT 931
Civil Procedure –YJK Fall 2008
Page 23 of 42
1.
Aims of summary judgment
 Avoid wasting time and money if evidence is so one-sided and deciding case on the merits before getting to trial
 56 (c) only if there is NO genuine issue of material fact, and entitled as a matter of law
2. Historical background
 19th century UK innovation restricted to cases on commercial paper (where most evidence is on paper)
 FRCP56 expands much further to all kinds of cases. And allows for partial sum. Judgment.
3. Summary judgment process
Evidence and stuff can be from discovery and must be the kind admissible at trial.
4. Relationship between the standard for granding summary judgment and the burdens of production and persuasion
If π doesn’t meet the standard of SUFFICIENT evidence to meet burden of production and persuasion, then sum judgments allow to end
before trial.
5. Moving party’s obligation to support a motion for summary judgment
you can’t just say hey! Prove your case. You also have to show evidence there isn’t a case.
3. summary judgment “trilogy” making sum judgments easier to win. (or not, since trend was before)
Celotex--> regarding level of support needed for party making motion, not having burden of proof
How does the party with burden counter a properly supported motion?
Anderson v. liberty lobby, inc (SCOTUS 1986)
Matsushita elec. Indus. Co. v. Zenith Radio Corp. (Scotus, 1986)
Sum judgment triology:
Celotex→ description of what the rule requires the moving party to do: you don't necessarily need evidence.
Anderson v. liberty lobby
Matsushita
Celotex:
how everything works
Tells us about the hoops that parties have
How do I properly move for sum judgment when I am a Δ?
Δ doesn't have to put in evidence that the Π will fail? NO
BUT must be able to point to spots where Π will fail.
Δ needs to be able to say: here are the places in the record from discovery that shows that Π cannot make their claim.
Then Π has to REBUT that sum judgment motion with MORE THAN just the complaint.
56e2 (they've got to have evidentiary support (from admissible things) for their allegations)
56f : if the non moving party can show that they don’t have the information yet…the ct can do what they want.
Anderson:
if you have a burden of proof beyond preponderance
Usually, the jury has to find more likely than not the Π's claims are TRUE.
Sometimes require Clear and Convincing evidence
Judges are supposed to find: IS there ANY evidence?? Not whether the evidence meets the standards. Judges should not WIEGH the
evidence.
Matsushita: complicated anti-trust case
Particular way Π tried to estb anti-trust conspiracy is a) price cutting
4. supporting a motion for summary judgment when the moving paryt bears the burden of proof
This is a super burden that most can’t meet ; most π don’t have all the evidence, nor that it is SO compelling.
5.relationshipbetween the burden of persuasion and the standard for summary judgment; factually implausible claims
Colston v. Barnhart (5th Cir, 1997) p 954
FACTS &
PROCEDURE
ISSUE
& HOLD
Sep 29, 1993 cop pulls over car with defective headlight.
 Turns out that driver has an outstanding warrant and arrests him.
 Cop decides to turn car over to passenger (π) if he has driver’s license
 π lies to the cop about his age, his name, and cop asks him to get out of the car
 π is much bigger than the cop (225 lbs v 160 lbs; 6’1” vs. 5’6”
 Cop tells him to kneel, he refuses. π asks ‘why?’, cop says, because you’re refusing to answer
 Cop tells π to get on the ground, π refuses, lifts leg and tries to get up, Langdon and Δ push π to prevent π from getting
up
 Colston still tries to get up so Δ starts hitting him with baton, then π knocks Langdon to the ground
 π hits Δ in the face so that his glasses break and he is “dazed”
 π knocks Langdon to the ground “limp and motionless”
 Δ draws gun, π takes step to patrol car (where shotgun is) and Δ shoots π in butt and arms
π claims: excessive force under 42 USC §1983; violation of 4th amendment rights
Δ: sum judgment b/c of qualified immunity
DCt: deny b/c of issues of material fact
Whether Barnhart’s conduct was objectively reasonable and thus qualified immunity
Yes! So reverse and render
Civil Procedure –YJK Fall 2008
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REASONING/R
ATIONALE
CT can heard interlocutory jurisdiction to determine a legal issue b/c
a) Appeal is based on issue of law
b) Qualified immunity is a matter of law after accepting all of π’s allegations as true.
Qualified Immunity Claims:
 shield govt officials from civil damage liability if objectively reaonsable under law
 2 step inquiry:
a) π alleges violation of clearly established constitutional right?
(YES 4th amend, excessive force)
b) Δ’s conduct reasonable under existing law?
 Balance amt of force used vs. need for that force
 Consider fact that police officers make split second judgments in tense, uncertain, rapidly evolving circumstances.
 yes! b/c reasonable officer in Δ’s circumstance would have believed π posed threat of serious bodily harm or death to Δ
or Langdon
π says: I wasn’t armed and was just trying to flee!
Ct said: how would Δ know? Colston lied, refused to obey, was bigger than Δ, hit them, knocked Langdon out. Δ couldn’t
know if π fleeing or intending to hurt them more
π says: failure to warn makes shooting unreasonable
Ct says: warning is only if it’s feasible! So failure to warn was NOT objectively unreasonable
Dissent: this is a black guy trying to flee a bunch of violent white cops!
a)we don’t have jurisdiction here, there are questions of material fact that need to go to jury
b) even if we had juris; the majority shouldn’t have interpreted facts in favor of Δ, as they did by painting π’s actions as
violent and thus Δ’s actions being reasonable…
 colton never used a weapon, didn’t even disarm
 Colton’s hits didn’t really hurt them—didn’t even get medical attn
 Cops didn’t arrest him
How would sum judgment work in COLSTON if qualified immunity did not exist:
o Π's claim: cause of action under § 1983 for violation of 4th Amend prohibition of excessive force
 Δ, while acting under color of state law,
 Deprived Π of 4th Am right
o To show 4th Amend violation: Π must show Δ used deadly force AND that
 Deadly force was not necessary to prevent Π's escape OR
 Δ did not have probable cause to believe that Π posed a significant threat of serious physical injury to Δ or
others; OR
 It would have been feasible for Δ to give Π a warning before using deadly forece but Δ did not do so
o At trial Π has burden of production and persuasion as to each element.
o When Δ moves for sum judgment: Δ's burden is:
 Point to places where Π could not estb claim
Qualified Immunity
o Did the conduct violate a const. right?
o Was the right clearly established?
 Would it be clear to a reasonable official that his or her conduct was unlawful under the circumstances?
o Protects from liability AND from having to go to trial
Collateral Order Doctrine
o Decision treated as final if:
1. It's conclusive
2. It resolves an important question that's completely separate from the merits, and
3. It renders the important question effectively unreviewable on appeal from the final judgment
Recently, Scott v. Harris, a high speed chase with tragic results to the runaway driver; dissent by J. Stevens accuses majority
of acting like a juror
Resolution prior to trial: Pretrial Practice
Fed. R. Civ. P. 16 Pretrial Conferences; Scheduling; Management
Fed. R. Civ. P. 68 Offer of Judgment
SETTLEMENT AND THE PRETRIAL CONFERENCE
Civil Procedure –YJK Fall 2008
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INTRODUCTORY NOTE ON SETTLEMENT
1. The ubiquity of settlement
2 kinds: $$ for release of claim; injunctive relief
2/3 of the time cases are settled. Most even before any claims are filed.
Settlement at any time, even while at trial.
Ct only needs to approve settlement with minors, insane and class actions to ensure they’re protected
2. How parties decide whether or not to settle
Compare cost of litigation to cost to settle.
But actually it’s settlement now or later?
Client has to make the decision unless the authority to lawyer is CLEAR
a. Evaluating a claim
Both sides have to do the math about costs, stakes, costs of litigation, and consider their own preferences and values
b. Bargaining to agreement
Complex factors! Bluffing, etc.lawyer need to figure out if a deal is possible without conceding much
c. Changing understandings of the settlement process lawyers don’t repeat relationships anymore
3. Policy preference for settlement
Settlements are preferred by judicial system, Ruel 16 says so; reflects more choice of the parties, and is cheaper(?)
BUT settlements are driven by costs of litigation, not a voluntary choice, denies public to know what would be the result if litigated.
6. Sanctions for failure to participate or for failing to settle on time
There is no duty to bargain in good faith in order to settle. BUT there is a Rule 16 sanction if you do not have ppl w/ power to settle present
at pretrial conference
Settlement deadlines ok. Auto sanctions is not w/o hearing reasons for delay of settlement.
7. Sanctions for failure to accept an offer: offer-of-settlement rules and offer-of –judgment rules
Rule 68 says only Δ can make the offer, before 10 days before trial; and if π doesn’t win more than the offer, pays costs.
Juries
U.S. Const. amend. VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Fed. R. Civ. P. 38 Right to a jury trial is
a) preserved b) can be demanded by serving or filing c) can be for only specific issues d) waived e) NOT for maritime or admiralty
Fed. R. Civ. P. 39 trial by jury
a) when demand is made, unless ct determines otherwise b)when no demand may, court may say JURY anyway c)when it’s not a jury by
right, ct can use advisory jury or get party permission for jury
Fed. R. Civ. P. 47 Selection of Jurors
(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court
examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of
their additional questions it considers proper.
(b) Peremptory Challenges. The court must allow the number of peremptory challenges provided by 28 U.S.C. §1870.
(c) Excusing a Juror. During trial or deliberation, the court may excuse a juror for good cause.
Fed. R. Civ. P. 48 Number of Jurors; Verdict
A jury must initially have at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule
47(c). Unless the parties stipulate otherwise, the verdict must be unanimous and be returned by a jury of at least 6 members.
What's the big deal about a trial jury??



Jury is more representative of your "peers" than maybe 1 judge sitting on the bench
Jury represents judgment of your community
Of course, sometimes you may not WANT a jury and prefer just the judge.
The right to a jury trial in federal Court:





Is there a right to jury trial on the relevant claim? (US CONST Amend VII)
More than every
If so, how do you preserve your right to a jury trial? (FRCP 38) ** make sure you know this
Attach your jury demand to your complaint . (or up to 10 days after pleading)
What if your fail to preserve the right under Rule 38? (FRCP 39)
Civil Procedure –YJK Fall 2008
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
Ct can order jury trial if your failed to demand it. 39b and 39c
Selection of the trier of fact
1. The jury
o Stage 1: jury panel, or venire (potential jurors)
o Stage 2: voir dire--selecting the actual jury from those in the panel through questioning, from french (to see, to
say)
2. Basic legal requirements governing the selection of the panel
o 1968 jury selection and service Act 28 USC § 1861-78
 Fair cross section of the community
 Can't exclude on gender, race, religion, national origin, class
 Litigant can MOVE to stay proceedings either before voir dire exam or within 7 days of discovering the
grounds; doesn't require proof of INTENTIONAL discrimination
 In order to prevent bias in fact finding
3.
Tension between the selection process and the ideal of a representative panel:
o Currently under-represent minorities, b/c use registered voter lists, which under represent minorities
 In CA, People v. Harris, sup ct CA decided that using voter lists only excluded minorities.
o Even with other DMV licenses, and registered ID cards, underrepresent
o Other ways minorities excluded:
 Mailing questionaires and summons: Minorities move around
 English language req: minorities may not speak
 Convict exclusion (more minority convicts)
 Low pay (more likely to be excused for hardship)
4.
Challenges for cause and preemptory challenges
o For cause: if they're related to any of the parties, etc.
o When party doesn't have a cause, can use preemptory challenge.
FURTHER NOTE ON VOIR DIRE
5. Batson test for unlawful discrimination in the use of peremptory challenges
o Batson v. Kentucky (186): ct hold that race-based peremptory challenges violate equal protection clause of 14th
amend.
 PFC (member of group, exercised challegnes to remove member of race, raise an inference)
 Ct considers
 Then burden shifts for a race-neutral explanation
6. What coutns as race neutral justification?
o Hernandez v. NY (1991): challenge 2 latinos b/c they may NOT UNDERSTAND/ACCEPT translator's versions
o Purket v. Elemn (1995) used hair and goatee reason to exclude; SCOTUS said, judge may think silly and reject the
reason but NOT REQUIRED TO. (used 2/6 challenges to get rid of black jurors)
o Miller-El v. Dretke (2004) (10/14 challenges to remove 10/11 black men)
7.
8.
5.
How has batson worked in practice?
o Failed at effectively circumscribing race and gender based peremptory challenges.
Should peremptory challegnes be abolished?
o Studies show lawyers not very effective at figuring out who would be biased and scientists not much better.
Expanding the protected categories
o Jeb v. alabama ex rel TB (1994) expanded to not allow peremptory challenges based on gender; at trial, they
managed to get rid of all the 10 men.
o State v. Davis (1993) about a jehovah's witness getting removed. Some states now hold religion based exclusion
unconst. SCOUTS refused certiori.
Edmonson v. Leesville Concrete, Inc. (US 1991) p 1072





Black Π was crushed at work by truck; Δ's lawyers use 2 preemptory challenges to remove 2 black jurors.
Trial with 11 white, 1 black juror; $18K awarded b/c 80% contributory negligence.
SCOTUS says, Π's lawyers have to say WHY they removed the 2 jurors.
Scalia dissent: trials are becoming a side show! What the heck. Too burdensome to litigants and trial to make sure every time
preemptory is not based on race.
OConner dissent: a private lawyer is NOT acting as govt
Civil Procedure –YJK Fall 2008
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Division Of Power Between Judge And Jury
Fed. R. Civ. P. 50
Fed. R. Civ. P. 46
Fed. R. Civ. P. 49
Fed. R. Civ. P. 51
Fed. R. Civ. P. 59
Fed. R. Civ. P. 61
Fed. R. Civ. P. 52
Factors to consider when deciding whether to grant a new trial:
1) complexity of the issues,
2) degree to which evidence was in dispute
3) other undesirable or pernicious element occurred?
THE PROVINCE OF THE JURY
1. TAKING THE CASE FROM THE JURY INTRODUCTORY NOTE ON TAKING THE CASE FROM THE JURY
 Judgment as a matter of law (after 1991) R50; strongest control of jury by the judge
Directed verdict
Judgment notwithstanding the verdict (judgment n.o.v)
 Take away case from the jury BUT order a new trial with new jury; not as severe control of jury by judge
NOTE ON DEVICES FOR TAKING A CASE FROM THE JURY
History and terminology
CL used to have demurrer to the evidence, judge just entered the verdict without jury's assent.
Now, we have R50 which says a motion for J as a matter of law must be done BEFORE submission to jury to have "renewed
motion" entertained post-verdict.
Relationship between the standard for granting directed verdict and burdens of production and persuasion
Tests sufficiency of non-moving party's evidence to meet it's burden of PRODUCTION, which is related to burden of
PERSUASION
Federal standard for granting judgment as a matter of law: SIMBLEST
a. Court reviews all of the evidence in the record
b. Aw all reasonable inferences in favor of the non moving party
c. Not make credibility determination
3. Practical considerations in taking the case from the jury
It's actually rarely used since if it's entered post verdict and it's wrong, appeals ct can just reinstate original verdict. If there is
no trial, they will then have to order one!
NOTE ON THE JURY'S ROLE IN NEGLIGENCE CASES
oDistinguishing simblest and stout
 Perhaps because the RR was negligent whereas the fire truck was NOT negligence.
 A 66 yo dude has a higher standard of action to take care than a 6 yo boy?
 Standard of conduct spelled out for driver in VA emergency LAW?
Jury lawmaking outside of the law of negligence
 Colston v. Barnhart: if video was FACT, then still go jury? Yes, b/c of inference and standard of conduct.
1.
PUTTING THE CASE TO THE JURY: INSTRUCTIONS AND THE FORM OF THE VERDICT
NOTE ON INSTRUCTIONS TO THE JURY
1. The content of instructions to the jury
a. State rules of substantive law jury must apply
b. Advice jury concerning task as finder of fact
c. Explain applicable burden of persuasion
d. Jury's role as arbiter of credibility and drawer of inferences
e. "bidning instruction" how to decide if it's an issue for the ct
Civil Procedure –YJK Fall 2008
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2.
3.
4.
5.
1.
f. Judge MAY sum up evidence and commen on issues, as long as it makes clear pwr remains with the
jury
Process of framing instructions to the jury
Lawyers are important here b/c 1) jury instructions are requested in writing and contested in writing 2) if an
instruction is WRONG, or inadequate, MUST OBJECT BEFORE jury deliberation in order to raise the appeal
LATER, after verdict.
Timing of instructionsappellate review (before OR after the counsels give their ARGs)
Appellate review if objection properly preserved, reverse if 4 conditions met:
a. Instruciton was not covered by another instruction
b. Requested instruction was a correct statement of the law
c. Issue on which the instruciton was requeested was properly before jury
d. That the failure to give the instruction was prejudicial, not harmless error
Form instructions and juror comprehension
Studies show juries don't really understand these pattern/form instructions. hard even for a 3L!
NOTE ON GENERAL AND SPECIAL VERDICTS
1. General verdict (jury doesn't have to say why they decided the way they did; useful b/c jurors can agree on
outcome w/o agreeing on the path getting there--eh, not helpful when contested?)
2. Special verdict and its antecedents not generally used, but getting popular with all these complex cases
3. Problem of inconsistency if G verdict and interrogatories used and they're all inconsistent→ resubmit to
jury or grant new trial
MOTIONS AFTER VERDICT 1114-1116
INTRODUCTORY NOTE ON POST-TRIAL MOTIONS
1. Entry of judgment (either jury VERDICT or judge's decision)
o Important because it determines the time from which other dates are computed for post-trial motions
o Within 10 days:
 59 (b)Motion for new trial
 59 (d) for trial court to order new tiral
 50 (b) post-verdict motion of JMOL
2.
Variety of post-trial motions
 Motion for JMOL→ need to show evidence insufficient for reasonable jury to find verdict for the winner under
the applicable burden of persuasion
 Motion for new trial→ need evidence of due diligence before and during trial to get new evidence; difficult b/c
can't use juror testimony to show mishap
Casebook pp. 1124-32 (start with note 2; in chart on pp. 1124-25, focus on federal, not California, provisions)
2.
NOTE ON SETTING ASIDE A VERDICT
Post trial motions based upon the sufficiency or weight of the evidence
JMOL
New trial
Time for party motion
10 days after judgment
same
Condition precedent
Must have moved for JML at close
of all evidence
none
Is the judge limited to granting relief only in
cases where a post trial motions is made
requesting it?
Yes
No, court may grant new trial on its
own
Standard for granting relief
"no legally sufficient evidentialry
basis for a reasonable jury to have
found for the verdict winner
Against the "great weight" of the
evidence
Standard of review on appeal
Issue of law that is reviewed de
novo. COA applies same legal
standard as trial judge
Whether the trial judge abused her
discretion in applying the "great
weight" standard
NOTE ON THE RELATIONSHIP BETWEEN THE MOTION FOR JMOL AND THE MOTION FOR A NEW TIRLA
Civil Procedure –YJK Fall 2008
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JMOL AND NEW TRIAL IN THE ALTERNATIVE
50c says ct must rule on both even if one makes the other unnecessary.
Appellate review of grants or denials of new trial based on the weight of the evidence
Cts assess both credibility and inference
Granting judgment as a matter of law aginst the verdict winner
Evidence of appellate attitudes toward verdict-winners
Appellate cts tend to be pro-Δ b/c they think juries are pro Π; but stats show they may be wrong.
Supp. pp. 73-75 (addition to p. 1125) Casebook pp. 1137-40 note on excessive or inadequate verdicts
Standard for excessiveness or inadequacy of compensatory damages
Trial judges set aside verdicts if amt not supported by evidence
Remittitur
Where you avoid a new trial if the damages were excessive by granting new trial UNLESS the Π accepts the reduced
amt judge decides to be more reasonable. Cannot seek reinstatement of original verdict since consented to the 2nd
option instead of going to new trial. Of course, the consent doesn't seem so "free" of a choice.
Additur
Doing the same as remittitur, but for MORE money; most courts don't do this, since OUTSIDE of jury's bounds.
Judicial supervision and the "runaway jury"
Actual high verdicts are rare. Simply that those get coverage.
Punitive damages
Excessive ones NOT allowed; can change without remittitur and also diff standards of review; 3 factors to review:
Reprehensibility of Df's conduct
Ratios between punitive damage award and severity of harm
And ratio between punitive damage award and monetary sanctions set by legis for similar misconduct
Casebook pp. 1140-41 (note on non-jury trial)
NOTE ON THE STRUCTURE OF A NON-JURY TRIAL
o Structure is the same, but the presentation may be diff since judge is already knowledgable upon most things.
o Evidence rules differ
o And since only 1 person, predispositions have larger impact
Simblest v. Maynard (2nd cir, 1970) p 1097
Car accident case.
Old man from NH was driving through an intersection in VT when he was hit by a firetruck.
Man claims
he had green light when black out occurred
Didn't see red lights of fire truck or hear siren
View was obstructed
he didn't see the fire truck until too late and that truck had last
clear chance to avoid him.
JNOV standard in diversity should only look at evidence in
light most favorable to party; or 
D claims:
lights were on, sirens were on
All witnesses back up lights or sirens or both
CT says:
Photo shows that had Π looked, firetruck would have been visible
Witnesses saw light or heard siren, or both. Only Π didn't
Green light doesn't matter in an emergency situation. VT law says with siren/lights, you pull over until it passes.
Π only had 3 second to see the truck, which would be like NOT seeing the truck at all, so how could he have seen the lights of truck
Regarding last clear chance, Δ did not have any chance to prevent collision.
Δ motions for directed verdict. Denied
Jury returns for Π; $$
Δ gets Judgment NOV
Π appeals: JNOV standard is the federal one, not the VT one that DCt used.
HOLD: Affirm JNOV;
SCOTUS doesn't say how to weight evidence (federal standard or state for diversity cases) BUT it doesn't matter which standard, b/c
UNDER BOTH, the evidence meets JNOV
JNOV req: there can only be one conclusion that reasonable men reach (without weighing credibility of witness or weight of evidence)
Here, evidence shows contributory neg; bars Π from collecting ANYTHING. Judgment NOV for Δ
Civil Procedure –YJK Fall 2008
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Sioux city & Pacific railroad co. v. Stout (SCOTUS, 1873) p 1106
o 6 yo boy injured while playing on the RR turntables.
o Procedural history:
 Jury found for Π, said the RR was negligent, injury cause by their negligence by not locking turntable. award
$7500,
o Δ wants JNOV so that the judge will put aside the jury verdict and decide on his own.
o CT:
 even if facts are undisputed, if there are inferences to be made, can leave up to jury
 12 heads are better than one
 Evidence isn't strong, negligence is slight. But if jury wants, they can.
o HOLD: jury is allowed to make their own inferences, even if the facts are not disputed.
Spurlin v. GM (5th Cir, 1976) p 1125
Bus accident case?
Spurlin v. General Motors Corp. (COA 5th, 1976)
F: school bus crashed when the bus broke. 22 Children injured and 2 died.
trial granted $70K to each of the dead; Δ moves for JMOL and maybe new trial b/c verdict not supported by the evidence Gives Δ new trial.
I: whether DCt erred.
H: D ct was WRONG, erred in granting a new trial; erred in granting JMOL motion for GM
there was enough evidence for the jury to find verdict as they did.
Evidence at trial was sufficient to withstand a motion JMOL under Boeing test
Evidence was enough for the jury so it was enough to withstand a Δ motion for JMOL
Once a jury finds a verdict, there must be some serious reason to grant new trial.
Shouldn't just reweigh the evidence b/c jury could have gone the other way (tennant v. Peoria)
Factors to consider when deciding whether to grant a new trial:
1) complexity of the issues,
2) degree to which evidence was in dispute
3) other undesirable or pernicious element occurred?
Judgments, Appeals
Fed. R. Civ. P. 54
Fed. R. Civ. P. 58
Fed. R. Civ. P. 60
Fed. R. Civ. P. 69
Fed. R. Civ. P. 79
Civil Procedure –YJK Fall 2008
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Claim preclusion
U.S. Const. art. IV, § 1
28 U.S.C. § 1738
28 U.S.C. § 1652
28 U.S.C. § 2072
Federated dept stores, Inc. v. Moitie (US 1981) p1159
Staats v. County of Sawyer (2nd Cirt 2000) p 1177
Issue preclusion
Collateral Estoppel (Issue Preclusion) 1183
a. Identical Issue Actually Litigated and Determined 1183
Introductory Note on Collateral Estoppel (Issue Preclusion) 1183
1. Collateral estoppel (issue preclusion) uder the R2d Judgments
 § 27 "when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is conclusive in a subsequent actions between the
parties whether on the same or a different claim"
 Bars a party and its privies from relitigating an issue IF but ONLY IF:
1. Issues in both proceedings are identical
2. Issue in prior proceeding was actually litigated and actually decided
3. There was full and fair opportunity to litigate int eh prior proceeding, and
4. Issue previously litigated was necessary to support a valid and final judgment on the merits
2. Issue of fact or law
 TRADITIONAL : C. estoppel for issues of FACT; stare decisis for issues of Law
 TODAY: preclusion applies to both.
3. "ultimate" and "mediate" facts
o Hand said "ultimate" and "mediate" facts were different.
o TODAY: question is whether it was treated as important and necessary to the decision in the first action
o And MORE IMPortant: whether it was foreseeable issue would come up in later litigation and whether party had
adequate incentive to litigate issue the first time.
Note on Identical Issue Actually Litigated and Decided 1189
o Purposes of collateral estoppel (issue preclusion)
o Judicial efficiency
o Judicial consistency (because really, when it's 51% more likely than NOT, then hmm, could go either way really. Courts are
just guessing.
o Identical issue
o Similar but different tests are usually not grounds for preclusion.
o Labor law example of similar but different test. NLRB v. Thalbo
o Actually litigated
o Actually litigated:
 Genuinely adverse on the issue
 Evidence on issue was presented to the court
o NOT Actually litiaged:
 IF party conceded on an issue, and evidence was presented and court made factual finding, then it WAS NOT
LITIGATED
 If parties stiuplate to its resolution
o TRADITIONAL: issue between parties on the same side were not actually litigated (ie. Crossclaim)
Civil Procedure –YJK Fall 2008
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o
o
MODERN: actually litigated IF parties are antagonistic to each other on the issues.
PROBLEMS: default J after Δ makes "some" appearance
 DOMINANT VIEW: not preclusive, some though consider it preclusive.
Actually determined
If issue was compromised by the finder of fact,
Absent jury compromise, the STATED RULE: preclusion applied no matter how irregular or erroneous judgment was.
o
o
o
b. Full and Fair Opportunity to Litigate, and Necessary to the Judgment 1191
Note on Full and Fair Opportunity to Litigate, and Necessary to the Judgment 1195
o Full and fair opportunity to litigate
 Requirement MAY be met by non-judicial proceeding, BUT
 Must be sufficiently formal and
 Sufficiently procedural safeguards that proceeding approximates judicial proceeding.
o Administrative agency determinations
 OLD RULE: admin. Adjudication had NO preclusive effect b/c NOT judicial adjutications
 TODAY: admin adjutication gradually been formalized to point "hardly distinguishable" from judicial
adjudications→ so IF it is sufficient, THEN, equivalent to court litigation for C. estoppel
 GENERALLY: state admin proceedings have preclusive effect, BUT SCOTUS said, it's a starting point and intent of
Congress under a statute controls.
3. Affirmance on appeal
 If party has NOT been able to appeal (for whatever reason) a decision, THEN it's NOT C. estoppel.
4. Burden of proof
o If burden of proof was laxer in first case, they can be sued again for a higher burden of proof.
o But what about Bernie Geotz? So I guess it works both ways?
o
o
Essential to the judgment
What if many alternative findings are the base for the decision?
Alternative determination is NO LESS
for being alternative, given most
litigation is multi-issue, alternative
theory
o
Alternative determination is DICTUM,
given that court would have reached
same result regardless of
determination.
Restatement says: alternative determination is NOT conclusive UNLESS both alternatives are reviewed and decided on
APPEAL.
Courts are generally suspicious of them…
o
o
7.
Law of the case and direct estoppel
 "law of the case" doctrine: determination of an issue of law at ONE stage of case becomes law of the case and
absent a change in circ, will NOT be reexamined in a subsequent stage of the same case
 Commonly found in appeals, then remands, then new appeal.
 Direct estoppel: finding of fact at one stage ordinarily precludes relitigation of that factual issue.
Judicial estoppel
 Party cannot assert inconsistent positions in successive litigations (IF they won in the first, if they lost, not
estopped…but this application IS NOT UNIFORM)
 Some think incompatiable with modern pleading since Rule 11 and other protections exist.
Levy v. Kosher Overseers Association of America, Inc. (2nd Cir, 1997) 1184
o ISSUE: whether and when decision of TTAB of US PTO should have collateral estoppel effect in a lawsuit claiming
violations of the Lanham Act
o HOLD: only when they actually discuss marketplace user effects; sum judgment based on C. Estoppel was an error by the
D.Ct.
o RATIONALE: the TTAB test and the Lanham Act tests are DIFFERENT.
 Trademark infringement factors: POLAROID factors. 7part test. Of "likelihood of confusion"
 TTAB only inquires itno whether two certificatoin marks were confusingly similar
 Sometimes TTAB proceedings can cause preclusion. Just NOT HERE.
 ISSUE has to be identical to be precluded.
Civil Procedure –YJK Fall 2008
Page 33 of 42
o
FACTS: Levy of the OK LABs ppl are suing KOA
 Initially, KOA tried to register their mark
 TTAB turned down registration to KOA b/c it was too visually similar with OK Lab's.
 KOA uses their mark anyway
 OK Labs sues them.
 OK labs moves for sum j. on 3 of 6 claims, based on TTAB determination
 DCt. Grants.
NOTES ON PRECLUSION OF NON-PARTIES IN "PRIVITY" WITH PARTIES
1. Privity: prelusion also applies to people in privity; privity has become a conclusion that someone is sufficiently close to be
bound by the same legal obligations
2. Formal relationships: eg: beneficiary/trustee, executor, administrato, guardian, conservator…r2d judgments § 41
3. Consent: a non party can consent to be legally bound before the litigation;
4. Control or substantial participation: ppl who control litigation as a non party can be found to be bound by the litigation;
eg: US controlling a contractor's actions; or if there is a lot of potential plaintiffs to bring the same suit.esp when the diff
plaintiffs have the same lawyer, same claim.
5. Virtual representation: parallel interests?
6. Class actions: privity analysis similar to class action protections
C. Preclusion Against Other Parties 1211
Introductory Note on Collateral Estoppel (Issue Preclusion)
1. Mutuality rule
 Used to be that only parties in the previous litigation could use claim preclusion against each other.
 Exceptions: privity, if person was in privity with a winner, could use that winning claim, or even if that person lost,
he would also lose his day in court.
2.
Preclusion in favor of third parties
 Berhard v. Bank of America (Cal 1942) first to allow a 3rd party to use preclusion to defend against Π bringing same
claim as a previous suit.
 Critical questions to ask:
 Was issue decided in the prior ajudication identical to one presented in action in question?
 Was there a final judgment on the merits?
 Was the aprty against whome the plea is asserted a party or in privity with a party to the prior adjudication?
CLASS NOTES 12/1/08
Defensive use of NMIP is generally FINE.
Discussion in parklane as to why.
We like the incentives…
o Π knowing that there could be NMIP would only give him 1 CHANCE to litigate, so does his BEST job.
o
o
OFFENSIVE NMIP:
Parklane case says be wary…b/c you don't know if the Δ was subjected to an unfair forum.
Also worried about 50 Π, and 1-48, the Δ won, and only lost suit 49.
Essentially: from parklane:
Don't allows NMIP if Π could have easily joined in the previous action; → if you really want the benefit of the first suit, w/o
having to bring your own, then intervene (Rule 24)
o But NOTE: in parklane, the subsequent Π could NOT HAVE intervened b/c it was securities case, not a civil suit.
o
1.
2.
2 questions for using offensive NMIP:
Could Π have joined?
Other reasons that would make it unfair to apply offensive NMIP?
Parklane Hosiery Co. v. Shore (US 1979) p1212
ISSUE: what a party who has had issues of fact adjudicated adversely to it in an equitabla action may be collaterally estopped from
relitigating the same isues in a subsequent action brought against it by a new party
HOLD: yes.
FACTS: first, SEC claim against Parklane Hosiery Co. Now, Shore, a shareholder class rep → Parklane; regarding false proxy statements.
PROCEDURE: DCt said no C. estoppel. 2nd cir said C Estoppel Ok since one issues fully and fairly adjudicated, no reason to do it again.
Civil Procedure –YJK Fall 2008
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ERIE: The law applied in federal court
28 U.S.C. § 1652
28 U.S.C. § 2072
CHAPTER 4. The Erie Problem 449
A. The Law Applied in Federal Court: The Problem of Erie Railroad v. Tompkins 449
Introductory Note on the Law Applied in Federal Courts 449
1. Relationship between federal and state law
Federal law must remember that it functions within the US legal framework which includes the states.
Hart argues there should be one law or ppl would go crazy!
2. Law applied in the federal and state courts, substantive and procedural
 Same substantive law, but sometimes diff states/fed apply different procedural law (and remember, judges within each system
may have specific prodcedures)
3. Swift v. Tyson Problem with a bill of exchange and not clear whether NY or US law applied, and it was problem b/c outcome
would be different

Federal law: whatever the statute said b/c there were no federal CL cases; but it was supreme

General law: at the time was limited to commercial transactions necessary for consistent trade among states

State (or local) law: swift was first time since judiciary act that state and gneral law departed. CT held that it could feel free to
apply general, NOT state law.
4.
5.
6.
Justice story's opinion made it famous; he was well respected; held that when state and general law diverge, federal courts free to
apply the general law.
General law under Swift v. tyson before the civil war: helped state courts and federal courts become more and more uniform;
lower courts follow SCOUTS, and if the state court did something unfavorable, parties get federal court to try the case
Growing unpopularity of Swift v. tyson after the civil War; federal courts increasingly supportive of employers and creditors,
federal courts also expand to include general law of tort → made the state courts mad. They started to favor the workers and the
debtors
Swift v. Tyson
J. Story's interpretation of "the laws of several states" in the RDA
→ lead to diversity Π being able to subject Δ to whatever federal law they feel like.
Swift v. tyson application of RDA had led to fed courts favoring the corporations to the detriment of the workers..
Why would you have such a system?
Changes in the country
1850-1916…railroads, industry, interstate corporations, new states…
Eventually diverging to the point where it's just NOT fair to apply federal juris just because a claim is a fed claim b/c of diveristy.
Strategy in Black and White, moves to a different state to get diversity juris to subject competitor to federal law, which is just not as fair.
1937 refocusing of the SCOTUS
Holmes pointing out in Southern bell that there isn't this omnipresent objective LAW…laws are created by govts..
Erie Railroad Co. V. Tompkins (US, 1938) p 455
ISSUE: whether swift Tyson is "disapproved"
Tompkins (PA) injured while walking on the side of the train tracks. Erie RR Co's train car door hit him (NY)
Erie says, duty to Tompkins is the same as to a trespassor and that PA law applies since he was injured there.
Under PA law, ppl who use pathways along RR right of way, are deemed trespassers and RR is not liable for injuries to undiscovered
trespassers resulting from tis negligence.
Thompson arguing that federal court should apply general law, NOT PA law. There was no PA statute about this, just common law tort.
PA tort law treated ppl walking along railroad tracks as trespassors
Ironic b/c at the time, federal court favored corporations over individuals
Trial judge: refuses to preclude Thompson from recovering. Jury verdict for Π, $30K
Circuit Ct: says it was a matter of general law and it's ok for Thompson to recover
Π arguing for federal general common law
Δ aruging for local law.
The 3 types of law: (1)Federal law (2) General law (3) Local law.
Arguments in favor of changing to the ERIE and overturning Swift: Fairness
SCOTUS: there is no federal general common law, and the federal ct must apply federal law OR state law!!
BOTTOMLINE from Erie: The law that governs is the one that created the law! Federal law does not have the ability to create x law, then it
cannot create it in the federal courts!
**But note, feds have their own common law in certain POCKETS of law. Eg. Native american tribes… But this is an EXCEPTION
**The RULE: is that federal courts have to figure out what govt law created that claim..then questions of substantive law relating to that
claim come under the law that created the claim.
Civil Procedure –YJK Fall 2008
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Forks:
What's a valid FRCP?
What does it mean to "follow" it?
Which state's law? Klaxen
How do I know what the state's law is?
The state's highest court
If no decision by the highest court→ (a) guess! Infer from other decisions (b) state certification
**If you get a judgment and then the state supreme court decides on the issue AFTER time has run out for appeal then… you're screwed. 60
b6 probably won't work… but hasn't yet been determined by SCOTUS.
Gauranty trust Co. v. York(US 1945) p 466
Byrd v. Blue Ridge Rural(US 1958) p 473
Hanna v. Plumer (US 1965) p 479
Gasperini v. Center for Humanities, Inc (US 1996) p 491[not assigned]
Cities Service Co. v. Dunlop p. 499
Texas and federal court have opposite burden of proof.
HOLD: Federal Ct needs to use the TX burden of proof b/c it makes a substantive difference, it’s not just a procedural problem.
Palmer v. Hoffman pg 502
Rule 8(c) doesn’t give us an answer.
Klaxon v. Stentor, pg 501
Which states’ law? PA or NY in a diversity suit.
FACTS: Contract suit in DE fed court, but they applied NY state law.
HOLD: Courts must apply the laws of the state in which the court sits. Thus, suit in DE district court applies DE state law
→ makes sense b/c if you get into the federal court in diversity, you want to still consistently use the state law, not get to apply
whatever states’ law.
Ragan
Rule 3: when an action is commenced, by filing a complaint.
In 1949, court in Ragan said NO. we can’t give lawsuit longer life in federal court
than it would have had in state court.
Byrd v. Blue Ridge pg 509
state law
federal law
FACTS: π sues in federal court b/c he wanted a jury, where under SC practice,
judge would determine (workers’ comp)
HOLD: 4th Cir says, give to jury. Federal 7th amendment is more important than
state interest (it’s not even a state statute, just a procedure)… this is really
important in using the system they ordinarily use.
>> we don’t have to do a legislative history analysis if there is a federal law,
statute, constitution
Only do the BYRD BALANCE TEST if we determined in YORK that this is an
outcome determinative procedure.
The Byrd Balancing Test from mike shecket.
This test is derivative of the earlier test. There are three questions that you ask
when you deal with Erie questions:
1. Is the state rule bound up with rights and obligations?
This is the substantive question. In Erie, the state rule had everything to do with
rights and obligations, so the state rule applied.
If the answer is yes, state law applies.
If the answer to this first question is no, however, you ask the second question.
2. Will applying the state rule dictate the result of the case?
This comes out of York. In York, the answer was yes. If the state rule is outcome-determinative, we must ask a third question:
3. Are there countervailing considerations?
For example, what is the interest in the federal forum as opposed to the state forum? Compare this to the issues of personal jurisdiction and
the balancing tests you find there.
Civil Procedure –YJK Fall 2008
Page 36 of 42
28 USC §2072—the rules shall not abridge any substantive right.
York Decision:
o
o
Is the suit timely?
Burden of proof?
Cities Service Co. v. Dunlop
December 2 Casebook pp. 491-514 (not assigned anymore, covered in lecture)
Hanna v. Plumer (US 1965)
π served process on Δ by following Rule 4(d)(1) and leaving summons and complaint at home w/ person of suitable age and
discretion. MA law required in-hand service.
o PART 1: CJ. Warren—outcome determinative test, did not require federal court to substitute state rule for its own.
o PART 2: estalsiehd a different analysis for cases in which official FRCP conflict with state law.
o if you were representing Hanna, what would you argue? That you were in federal court and thought that the federal Rule 4 on service
would apply, not some state court procedure.
Majority says, it’s not a hard question here, b/c there is a federal rule here.
o
Timeliness Cases
York (1945)
Ragan (1949)
Walker (1980)
West (1987)
•outcome determination test
•same basic result, in a case where Rule 3 could have been thought to apply.
•Rule 3 does not govern "commencement" for limitations purposes in diveristy case
•Rule 3 does govern "commencement" for limitations purposes in federal quesiton case.
Walker v. Armco Steel (1980)
Aug 22, 1975 Walker injured
Aug 19, 1977 Walker files suit in fed court in OK
Dec 1, 1977 service of process on Δ
Under OK law, action was not “commenced” for SOL until service of summons on Δ…
Let’s use the decision tree!
Question 1. Nature of the issue? Arguably procedural.
Question 2. Conflict between state and federal practices? Yes.
Question 3. Federal consttitutional provision, or valid federal statute or rule on point?
Sub-question: … are the rules valid?? substantive right?
Any statute after REA should not
Court deliberately chooses the narrow interpretation of the RULE to…
Examining whether the civil rule is applicable.
Court said NO.
TAKE HOME: Court is saying that outcome determination … means…look at the set of facts with Erie’s twin aims: Are they forum
shopping in Walker??
Erie’s aims: viewed at time brought to federal court (filing, or at removal)
1. Equitable application of laws
2. Discourage forum shopping
Rule 3 is NOT intended to govern on the point.
**But then there’s West…but look! It’s a federal question case so there is ONLY RULE 3, NOT a state law that governs.
Schwartzbuam:Why follow federal rule in hanna and why not in Walker??
 May go back to suggestion that in the back of the courts mind is the question of what is the value served by the state provision?
 The kind of thing we follow states is the amount of time you can sue someone…
DISCLAIMER: having the analytical structure doesn’t really help you determine BEFORE, what’s going to happen.
Civil Procedure –YJK Fall 2008
Page 37 of 42
Forum non conveniens..
What if it’s not that clear that there is a conflict?
DCt has to try and work it out from whichever angle is easier… or better..
Is the choice between one practice or another likely to determine the outcome of the case?
If PA determines to keep and the federal courts decide to send it to Scotland.
Gulf oil v. Gilbert factors… in Ravelo Monegro.
o
o
Is there an overriding federal interest??
Federal govt doesn’t haven’t a regulatory interest in letting this case go forward in federal court… but do have an interest in preventing
ppl bringing cases in federal ct and clogging the system.
The private factors are:
The public factors are:
1. Relative ease of access to proof
1. Court congestion
2. Availability of witness subpoenas
2. Local interest in having local
3. Cost of getting witnesses
controversies decided at “home”
4. Possibility of view of premises if called
3. Forum familiarity with substantive law
for
4. Unfairness of burdening citizens with jury
duty for case unrelated to forum
… what if the state court would have done something different and
it’s just because the Δ was able to remove to federal court that it got
kicked over to Scotland..
step 1
step 2
Gasperini v. Center For Humanities, Inc. 491
• substantive?--> follow state law.
• arguably procedural? go to step 2
• conflict between state and federal practice?
• NO--> follow both
• YES--> go to step 3
o
Diversity suit for damages for lost slides. Jury awards $450K.
$1.5K per slide.
• federal constitutional providison or valid federal treaty, statue or rule on point? NO-->
go to step 4
Let’s say, it’s easier to say “deviates materially” than “shock the
step 3 • YES--> apply federal provision (Hanna, USC ss 1652, 2072
conscience” to get the jury reward reduced and new trial granted.
D Ct denies Rule 59 motion.
On appeal, what standard of review do we use??
• application of relevante state procedure like to determine outcome of the case?
• NO--> follow federal practice
Federal COA would only overturn if there was an abuse of
• YES --> go to sep 5 (York)
step
4
discretion.
Only adds to the Erie analysis in two ways:
1. What’s the substantive standard that federal district court
• overriding federal interest?
should use?? (state deviation or federal shocks conscience)??
step 5
There is no civil rule on the point…
They can’t think of any law that governs…only Rule 59.. new trial
can be granted for any reason…
Court rejects arg that Rule 59 allows federal court to use shock the conscience standard.
Court does not think you can interpret Rule 59 broadly enough to apply shock the conscience
standard…
nature of the issue?
Illustration of a choice NOT to take a broad interpretation…
True, it IS outcome determinative, in that it could cause forum shopping…
If you’re having a hard time balancing the state/federal interests, then you’re
allowed to create a hybrid of both.
If I’m at state 5, and STILL balancing, is there a way to combine both
practices??
arguably procedural
-->
YES
-->
federal constitutaionl or valid
federal treaty, statute, or rule
on the point?
YES
substantive
conflict between state and
federal practice?
NO
-->
apply state law
follow both.
NO: application of relevant
state procedure likely to
determine the outcome of
case?
apply federal provision. Hanna,
28 USC ss 1652, 2072
Civil Procedure –YJK Fall 2008
Page 38 of 42
Last Day of Civ Pro Dec 3
5 basic steps in the ERIE analysis
Only complicated if the issue is arguably procedural.
If an FRCP rule was made after USCODE…. And bridges or overrides a state substantive right, then it’s invalid.
→ but there aren’t any rules that SCOTUS has declared to be invalid…
→ sometimes they decide to interpret the rule more narrowly instead of broadly in order to avoid validity problems (WALKER)
Hanna tells us to do whatever the federal provision ON POINT tells us to do.
→ how do you determine what is ON POINT?
Outcome determinative difference?
 When does the federal interest outweighs state interest? (See Byrd—right to jury, See Ravelo, federal court interest in not having an
overly burdensome docket.
 Is that difference from being in federal court something that the litigant would consider when deciding which court to sue?
o In other words, if it’s something that nobody would anticipate, then it’s not considered to be outcome determinative…
o Would it lead to inequitable application of the laws? (Walker—lawsuits don’t get a longer life in fed court than in state court)
o Forum shopping considered at the time of the outset of the claim…
12/3 HYPO: 3 car accident in NYC:



Struve
Jones
Ms. X (flees )
a.
years later, Struve→ Jones.
Rule 11 , lawyer has a duty of reasonable investigation
T Jurisdiction
 Δ= Jones (Az) served in AZ
o 2 Questions:
1. NY long arm statute? Yes, CPLR 302 a (2). does cover the situation. P juris over someone who commits tortuous act
within the state.
2. Constitutional?

Minimum contacts? For the specific jurisdiction, yes, from the accident incident itself.

Is it reasonable? 5 factor reasonable test… my interest, ny state’s interest, evidence/witnesses, shared interest in the
several states, yes.
Removal
 Can jones remove from state court to federal court? 1441 YES, because Struve could have brought originally in federal court because
she and he are diverse (ny and AZ) and the amount in controvery is over 75K. so it meets the 1332 requirements.
 Jane doe is not a factor b/c she’s unknown given that she may not even be joining the suit.
 1441 b limitations (doesn’t limit jones b/c he’s not from NY!!)
 And make sure that it’s within the time limit!
Transfer of venue:
 1404 transfer. Appropriate venue in the first place.
 Transfer questions
o Interest of justice? (parties interest and witness interest and justice!)
o Could the action have been brought originally in AZ? Yes.
 (old lady who couldn’t it transferred to her state)
Choice of Law
 State tort law governs b/c there is no federal court.
 Law of which state? Whichever state law, NY court would apply (Klaxen tells us this)
 What if the transfer to AZ had been successful?? → the AZ federal court would have to apply the law that NY federal court would have
applied. It’s a change of COURT ROOMS, not a change of LAW. (from Ravelo Monegro)
 What if jones had 1406 removed for improper initial venue If struve had sued him inAlaska?? Then you apply the proper venue court
LAW!
Joinder and SMJ
 Sara Speedy (CT), staying temporarily with friend.
o What is temporarily? Couch surfing? Or looking to stay in NY permanently?
Civil Procedure –YJK Fall 2008
Page 39 of 42

Proceed against speedy?
o Diversity?
1. Couch surfing→ yes, since CT is her domicile for diversity purposes.
2. NY permanently→ NO! allapatah says, you can’t join a claim if it destroys diversity jurisdiction (failing at 1367a)

Don’t even need to look at 1367 (b) limitations on supplemental jurisdiction for rule 20 joinders.
Problem of timing
 Speedy argues that it’s been 4 years since the accident and NY SOL is 3 years… can it relate back under rule 15(c)?
 If the state SOL say that relation back work? No. it’s just rule 15 (c ) (3) to change a name?? NO!! even though 15 (c) (2) same
transaction is satisfied b/c speedy did not receive notice of the action.
 Worthington v. Wilson problem..
 What if speedy knew about it within the 120 days? Still a problem b/c… does it constitute a mistake concerning identity—that depends
on the court. Some say it’s just lack of knowledge and NO RELATION BACK.
Summary judgment
 Jones moves Rule 59… based on affidavits saying that Struve going 90 MPH.
 In opposition, Struve says, he can’t use them b/c he didn’t name them in the initial disclosures (Rule 26)
o Can’t use unless 37 c 1… failure to name them from (1) didn’t KNOW, or (2)
NO SUM JUDGMENT b/c there is a question of fact..
What if jones has no evidence, can struve move for sum judgment?
The trial.
2nd suit: struve suing jones for defamation.
 Is there claim preclusion?
o Valid and final judgment? NO…. b/c the suit didn’t exist BEFORE he made the comments.
 Issue preclusion?
o Burdens are the same for the issue? In suit 1, jones had the burden to show Struve was negligent, but in suit 2, burden shifted
to struve to show she was NOT negligent to show his statement is FALSE… → can’t use for issue preclusion
Civil Procedure –YJK Fall 2008
Page 40 of 42
Appendix A: structure of a Lawsuit
B.
C.
Structure of a lawsuit
1. Preliminaries
a. Smith gets a lawyer (should choose a good one)
b. Lawyer looks at facts
c. Lawyer looks at legal problems—substantive law
2. Which Court? Territorial Jurisdiction, subject matter, venue
a. Territorial—in a state or go to fed?
b. Subject matter—can your state deal with it?
c. Venue—kin of like territorial
d. Choose based on several factors: backlog, empathy, convenience, etc.
3. Drawing up the Complaint, Filing and service of Process
a. Complaint/petition/declaration: statement stating the claim, why I should get a judgment, allegations—what he says
happened, what he wants the court to do
b. Filing: give to a clerk at the court, COMMENCED, gets assigned to a judge
c. Serve: the summons to the defendant
4. Responding to the Complaint
a. Preliminary objections
1. Motion to dismiss: should be written notice to the court, plaintiff
2. Default and default judgment:
 Inaction of defendent notify the clerk judge holds a hearing ex parte (only with P) and then decides
3. Pleading in response to the complaint
a) P needs to claim:
1. Violation of a law
2. Enough detail to give fair notice of the nature of the claim or complaint; insufficient in point of form
b) Defendants can then counter
1. Challenge the sufficiency in point of law
2. Failure to state a claim
c) If D answers, joins issue with P’s on factual matters
5. Discovery, Summary Judgment, Settlement
a. Discovery: each side investigating claims
1. Basic—names, ID, location, docs
2. Forms: interrogations, requests for inspection, depositions
b. Summary Judgment: based on paper, no jury trial
c. Settlement: parties agreeing, payment for release of claims
6. Trial
a. Jury selection
1. Challenged for cause, if a juror reveals bias, etc.
2. Preemptory challenges—just b/c (only a few)
3. Impaneled—jury picked, and ready to go!
b. Opening statements
1. P explains claim and tries to prove
a. w/ witnesses, direct examination then Cross exam by D’s side
b. rest, asks for judgment as a matter of law
d) D goes
c. Concluding arguments
d. Judge instructs the jury
7. Post Trial or Post Judgment Motions
8. Appeal
a. Only after final judgment
b. Except some—interlocutory appeal
c. Appellate court: to correct errors of law
i. Reversible error: order a new trial
ii. Harmless error: didn’t affect outcome
iii. Only looks at questions of law, not fact
iv. Usually do not consider objections NOT presented in 1st trial  if you have any sort of objection, you MUST raise
them in trial.
Structure of Court System
b) State courts
a. Trial courts: of limited jurisdiction
b. General jurisdiction
Civil Procedure –YJK Fall 2008
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Appendix B. Erie Decision Tree
Civil Procedure –YJK Fall 2008
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