FRCP
3
4
8
9
11
12
13
14(a)
15(a), (c)
18
19
20
21
23
26
30
33
34
37
38
41
42
50
55
56
57
59
65
Commencement of action
Summons
General Rules of Pleading
Pleading Special Matters
Signing of Pleadings; Representations to the Court; Sanctions
Defenses and Objections; Motions
Counterclaim and Crossclaim
Third party practice (3rd party Ds and Ps)
Amended and Supplemental Pleadings
Joinder of Claims and Remedies
Joinder of Parties Needed for Just Adjudication
Permissive Joinder of Parties
Misjoinder / Nonjoinder
Class Actions
Discovery
Depositions
Interrogatories
Document Productions
Failure to cooperate in discovery; sanctions
Jury trial of right
Dismissal of actions
Consolidation & Separate Trials
JML, Motions for New Trial, Conditional grants
Default Judgment
Summary Judgment
Declaratory Judgment
New Trials, Amendment of Judgments
Injunctions
28 U.S.C.
§1331
§1332
§1367
§1391
§1392
§1404
§1406
§1441
§1446
§1447
§1631
§1652
§1738
§2201
§2202
Federal Question
Diversity
Supplemental jurisdiction
Venue Generally
Ds, Property in different districts in the same state
Change of venue
Cure or waiver of defects
Actions Removable Generally
Procedure for Removal
Procedure after Removal
Transfer to cure want of jurisdiction
State law as rules of decision
Full Faith & Credit to State & Territorial Statutes & Judicial Proceedings
Declaratory judgments; creation of remedy
Declaratory judgments; further relief
Constitutional provisions
Article III
Article IV, §1
Amend. VII
Amend. XIV, § 1
Judicial Power
Full Faith & Credit
Right to Jury Trial
Due Process Clause
1
Personal Jurisdiction
- Does the court legitimately have power over this particular person?
- Concerned about both fairness and power
o Fairness to D, who might be held to answer in a foreign area
o Power of the court to exercise its authority only w/in its territorial limits
- Only worry about D being dragged into court involuntarily; whatever forum P
chooses is OK, b/c P is consenting to jurisdiction
- Policy reasons for / against:
o States have interest in protecting their citizens, providing means of redress
for them
o Increasing commerce
o No longer as inconvenient for D to travel to defend
In personam jurisdiction & the International Shoe standard
- Have to serve notice of suit to the person while they’re in the forum state, whether
or not they’re a citizen; but if they’re in the forum state, they’re fair game.
Pennoyer
o Also, based on the idea that you can’t always wait on a determination of
rights until the person returns to the forum state
- Constructive service is no good for an in personam action. Pennoyer
- Exceptions under Pennoyer:
o Can determine status relationships, even for those not in-state (i.e.
divorce)
o Business relationships: states can force Ds to have an agent in-state, who
can be served with process
 OK for corporations, but trickier for persons, who have a
constitutional right to travel
 State can imply that a person consents to the appointment of an
agent, who may be served with process, from a person’s activities
in-state. Hess
 Don’t take it too far – part of it is that there is a concern
about reckless driving & that the state can’t do a thing,
otherwise. Hess
 Also, implicit consent only applies to things relating to the
activity that gave rise to consent (i.e., the accident relating
to the reckless driving). Hess.
- Minimum contacts:
o Corporations can always be sued in the state of incorporation and in the
state where HQ is located
o Also, can be sued in any state in which they have “minimum contacts.” –
International Shoe
 Minimum contacts must be such that the suit “doesn’t offend
traditional notions of fair play and substantial justice”
 “Fair play and substantial justice” may also be a separate
consideration from “minimum contacts” – also consider
burden on D, interest in forum state of resolving the
2




-
dispute, judicial sys’s interest in efficient res of
controversies, social policies of states – BK
Or, that it’s reasonable to ask the corp. to defend suit
Minimum contacts only justify suit against a corporation where
there is a relationship btw contacts and underlying dispute
A contract w/ someone in the forum state is a “substantial” contact
– or at least a minimum contact sufficient for a lawsuit relating to
that contract. May or may not be substantial for general
jurisdiction. McGee
Minimum contacts can be established where a corp. “purposefully
avail[s] itself of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its laws”
– but when this hasn’t happened, no minimum contacts. Hanson
 Unilateral action of one party (not D) not sufficient under
Hanson
o
o To determine the type of contact, look to nature of corp.’s activity,
whether court has availed itself of the forum state’s laws, etc.
o “Minimum contacts” analysis applies to people too, and to adjudications
about property. Shaffer
o Minimum contacts may be established by injecting goods into the “stream
of commerce,” but only if the seller so injects them, expecting that they’ll
make it to the foreign state (like selling to people there) – Worldwide VW
 NOT sufficient for minimum contacts if you sell a product and
then the buyer takes it to the forum state (Brennan)
o Due Process clause does have some teeth, concerned about state power &
not just state interests & actual inconvenience to D (as Brennan is) –
Worldwide VW
o Foreseeability (or fair warning) is relevant to minimum contacts, in the
sense that you have to ask whether it’s foreseeable that a certain amount of
contact will justify hauling D into court – Worldwide VW, Burger King
 Foreseeability in terms of “was it foreseeable that the product
would end up there” does not matter – WW VW
 D does have fair warning when D “purposefully directs” his
activities at residents of the forum state, and litigation results from
injuries “arising from or relating to” D’s activities – BK
Asahi – it is “unreasonable and unfair” to ask a foreign corporation to defend suit
in the US against a foreign plaintiff, when the original US citizen plaintiff
dropped out
o This result even though there’s a dispute over whether minimum contacts
existed
o Dicta (only joined by 4): No minimum contacts if you sell a product,
knowing that it will end up in the forum state, if you’re not targeting that
state (i.e. you sell to a middleman who sells some of your stuff there)
o “Minimum contacts” & “fair play & substantial justice” now treated as 2
separate tests
3
-
General personal jurisdiction: If a corporation has “substantial contacts” with a
forum state, then people may sue the corp. there even for things not having to do
with its activities in the forum state. International Shoe
o Must be “so substantial” as to justify jurisdiction on causes of action
unrelated to its in-state activities. Coastal Video
o In old economy, look to: does it have a store there, how much business, is
there an agent appointed to receive service
o In high-tech economy, look at: # of hits, sales in forum state from the co’s
website; how is the website set up (how interactive)
o State has general jurisdiction over any person traveling within its borders,
when that person is personally served. Burnham
 Question about whether this always applies, or whether an
independent fairness inquiry is necessary – SC was divided in
Burnham
In rem jurisdiction
- Property must be attached before the suit, & constructive notice is OK based on
the legal fiction that people are in control of their property at all times. Pennoyer
- Now, in order to have a lawsuit about property, the presence of property is
relevant insofar as the dispute is over a piece of property. Shaffer
o Proceedings in rem no longer sufficient to establish jurisdiction, unless it
otherwise exists under minimum contacts analysis. Shaffer
Quasi-in rem jurisdiction
- Person could attach property and then sue a nonresident D up to the value of the
attached property. Allowable under Pennoyer.
- Can also attach debts: A (FL) owes $ to B (FL), who owes $ to C (ME)
o A travels to ME; while there, A’s debt to B is attached by C
o Maine obtains jurisdiction over B, w/o B having ever been to ME
- Abolished by Shaffer – since property is the relation of people to things,
attachment no longer enough – now, need to ask the “minimum contacts”
question for all suits vs. Ds
Statutory limitations on personal jurisdiction
- State, federal courts might limit themselves to less jurisdiction than the
constitutional maximums, tighten their jurisdictional requirements
- Long-arm statutes
o Allow state courts to reach beyond their borders to serve Ds, in the postPennoyer world
o Some grab as much jurisdiction as the US Constitution allows (CA) (i.e.
International Shoe, minimum contacts), others do not (FL)
o It was not “substantial activity” under a long-arm statute requiring this that
a person brought an earlier suit in state court. Gibbons.
o Bringing one suit is isolated activity and does not suffice to show
“substantial activity” for the purpose of establishing jurisdiction under the
4
-
-
FL long-arm statute, as to other, unrelated matters – would be OK for
subsequent court proceedings on the same subject matter of the action.
Gibbons
o Northwest Airlines v. Friday – MN’s long-arm statute was very factspecific, and for the most part conformed to the constitutional max of
jurisdiction – but there were some limitations. Really have to change facts
to establish minimum contacts
 Example of how you can have minimum contacts, but not
necessarily jurisdiction under long-arm statutes
Venue
o Strictly statutory creation, not a constitutional concern
o Personal jurisdiction locates w/in a state (or federal system for that state),
venue w/in a particular federal district
o Venue statutes: 28 USC 1391-92, pp. 322-24
o 1391 – will need to look to the rule for test, but generally allows suit in
any district where any D resides, or where a substantial part of the events
occurred, or where a substantial amount of the property is located (if the
suit is about property)
 These rules, exclusively, for supplemental jurisdiction
 Some slight changes for gov’t, foreign governments
 Statute defines where corporation “is”
 Also, rules differ slightly depending on personal / subject matter
jurisdiction
 Aliens can be sued anywhere
o 1392 – for a civil action that involves property in different districts of a
state, suit may be brought in any district
o 1406, p. 326 – if venue’s wrong, district court may dismiss or transfer
 But, district court has power to keep the case if the venue objection
isn’t timely or sufficiently made
Forum non conveniens
o 1404(a), p. 325, allows transfer of case to any other district or division
where it might have been brought
o Rest of 1404: allows transfer to another division, w/in district
o Forum non conveniens is not statutory at all, purely common law
o FNC is a Discretionary doctrine – Piper case
 Ordinarily respect P’s choice of venue
 But, may transfer if this venue is “oppressive and vexing to D out
of all proportion to P’s convenience”
o Look to 3 factors:
 Whether another forum exists in which the case could be brought,
 Burden of D is out of proportion to P’s interests (private interests)
 Forum is inappropriate b/c of legal problems presented to the court
(public interests)
o Private factors include: access to evidence, ability to subpoena witnesses
or implead 3rd party Ds, costs of obtaining attendance, all sorts of
5
practical problems, whether or not remedies are available or restricted in
other fora
o “This forum has more favorable law to me” does not count, for either side
o Public interests include: which law will apply, and if that’s a problem (US
courts applying Scot law), avoidance of conflict of laws, strength of the
forum’s interest in the case, unfairness of burdening citizens in unrelated
forum with jury duty
Summons & Service
- Service effectuates power, but doesn’t create it – need both power and notice
- Rule 4 governs summons & proper service of summons
o Forms 1-A and 1-B – examples of waiver request & waiver
- Parties have a duty to keep costs of service down; P can ask D to waive service
o Carrot: If D does, he has longer to respond to the complaint (60 instead of
30 days)
o Stick: if D does not, he may bear the cost of service
- Service cannot be a mere token gesture. Mullane
o Must be “of the nature to reasonably convey the information and must
accord a reasonable time to make an appearance
o If you have the names & addresses of the affected parties, then you at least
have to mail notice to them (but don’t need to personally serve)
o On the other hand, notice by publication may be adequate for:
 Seizure of tangible property for in rem proceedings might still be
good, but Pauline is unsure – it’s a matter of state law
 When persons are missing / whereabouts unknown
o State need not require “more certain notice” for those whose interests are
future, conjectural, or unknown
Subject Matter Jurisdiction
- Does the court legitimately have power over this particular dispute?
- Article III defines the judicial power; Congress can establish lower courts w/
power to hear cases and controversies arising under laws of US (federal question)
or btw citizens of different states (diversity)
- May want to bring cases in federal vs. state court b/c:
o Party’s interests
 Different law might apply
 Different procedures (maybe faster in federal court)
 More / less favorable jury pools
 Fed courts can transfer to other fed courts; states can’t
o Political theory interests
 Preserve separation of powers
 Have cases with broader policy implications tried in federal court,
rather than more “private disputes”?
- While personal jurisdiction objections are subject to “raise it or lose it,” subject
matter jurisdiction issues can be raised @ any time, including by the court, sua
sponte
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o Personal jurisdiction – its about these parties
o Subject matter jurisdiction – about the powers of the courts, preserving
space for the states & limiting federal power
Federal Question
- 1331, p. 313 – Federal district courts have original jurisdiction over all civil
actions arising under laws, treaties, Constitution of US
- “Well pleaded complaint rule,” Mottley:
o A suit only “arises under” the Constitution or laws of US when P’s own
claim is based on the laws / constitution
o P’s claim must appear in a “well pleaded complaint,” which states only the
basis for P’s cause of action; does not anticipate D’s defenses
o D’s defenses cannot get a case into federal court
o This sorts out cases @ the beginning of the lawsuit
- “Aising under” has narrower meaning in statute than in Constitution – Harms
o Constitution: arising under = any case in which there’s a necessary
“federal ingredient,” even if that ingredient is uncontested (CJ Marshall in
Osborn)
o Holmes: different test for statute: whether the cause of action was created
by federal or state law
- The SC has the full Article III power, if a case starts in the state system and works its
way up, so they are not limited by “well pleaded complaint” rule
Diversity
- Reason for diversity jurisdiction: fear of bias against litigants from out of state &
in favor of in-state litigants
o Might not be as big a factor today, but we still have it
- Citizenship measured as of the date of filing
- 1332, p. 313 is diversity jurisdiction statute
o Matter in controversy must exceed $75,000
 Or, $5,000,000 total for a class action
 If P ends up recovering less than $75,000, court can deny recovery
and/or impose costs
o Must be between citizens of different states – Need complete diversity on
both sides, anything else defeats diversity (Has been accepted since
Marshall in 1806)
 Requirement is statutory, not constitutional
 Can only be a citizen of one state – not like “minimum contacts”
 A person is a citizen of the state in which he is “domiciled, which
involves 1) physical presence, and 2) intent to remain there.
Hawkins v. Masters Farms
 A person living in the US is going to be domiciled
somewhere, even if there is difficulty – only time you
might not have state citizenship is for person abroad
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
If there’s a question (physically present one place, intent to
remain elsewhere) – courts would probably find “intent”
more important
 Vague ideas, plans to move don’t count if you don’t do
anything about it
 It is possible for an American living abroad not to be a citizen of
ANY state, but they are not treated as foreigners under the FRCP –
rather, they just can’t bring their claim in federal court if it’s on
diversity grounds. Redner v. Sanders
 Could always sue in state court, which has jurisdiction over
D (P consents to jurisdiction by filing)
 An alien permanently residing in US is a citizen of the state of his
domicile. 1332(a)(4)
 This was done for the purpose of reducing jurisdiction, so
that P (MO) v. D (Alien in MO) can’t get into fed.dist.ct.
 Though read literally, it does NOT grant jurisdiction over a
suit btw 2 aliens, when 1 is a permanent resident. Saadeh
v. Farouki
 BUT – 3rd circuit came out the other way
 Statute defines residencies of corporations, insurers, legal
representatives of another party
o Cases involving foreign states or nationals also involve this provision
Challenging Jurisdiction
Personal
- Used to make a “special appearance” so that you wouldn’t be conceding
jurisdiction
- Rule 12(b) allows following defenses to be made in answer or pretrial motion:
lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue,
insufficient process, insufficient service, failure to state a claim, failure to join a
party (Rule 19)
o These defenses can be heard b/f trial @ either party’s application, unless
court determines that they’ll be deferred to trial – 12(d)
o D may join these defenses in 1 consolidated motion, 12(b, g)
 Joining them in one motion doesn’t waive them, 12(b)
 But, D does waive them by omitting them from the motion, with
some exceptions, 12(g)
o Lack of personal jurisdiction, insufficiency of venue, of process, or of
service is waived if:
 Not included as part of a pretrial motion under 12, 12(h)(1)(A)
 Not raised in pretrial motion, answer, or amendment 12(h)(1)(B)
- What do you do when D challenges personal jurisdiction? Data Disc
o If you only have affidavits + discovery materials (papers):
 Make a prima facie showing of jurisdiction
 Must prove jurisdiction @ trial, by preponderance
o If you have more:
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 Court holds hearing
 Prove jurisdiction by a preponderance @ pretrial hearing
o If jurisdiction is really tied up w/ merits, court can postpone the issue to
trial
- 1631, p. 333 – when a case is brought in the wrong jurisdiction, trial court may
transfer it to the correct jurisdiction
Subject matter
- Court can dispose of it under 12(b)(1), lack of subject matter jurisdiction
o This is the only method for diversity cases
- Or, can dispose of it under12(b)(6), failure to state a claim, b/c “arising under”
depends on the substance of P’s claim
- SC has expressed preference that it be handled under 12(b)(6), if there’s an
arguable basis for federal claim
o Affects the preclusive effects under issue preclusion;
o Also affects power of the court to adjudicate ancillary claims
Direct
Challenge
waiver if not
raised @ outset?
if court agrees
No jurisdiction?
if D defaults
collateral attack?
Personal
Jurisdiction
by motion
12(b)(2)
yes
12(h)(1)
P must find another
forum w/ sufficient
Contacts
yes (attack
jurisdiction only,
not merits)
Pennoyer
Subject
Matter
Jurisdiction
by motion
12(b)(1)
or 12(b)(6)
never
12(h)(3)
Refile in state court
Pro’ly not
(rarely arises)
Supplemental Jurisdiction
- Combination of “pendant” and “ancillary” jurisdiction, another way of giving
federal courts power over state claims
Pendant claim jurisdiction
- Jurisdiction over state claims by the same P against the same D
- Old test:
o Do the state and federal claims comprise a “single cause of action” (if so,
then pendant jurisdiction) or “separate and distinct causes of action (no
jurisdiction)
o Before the FRCP, no longer makes sense now
- New test: Gibbs
o The two claims must derive from a “common nucleus of operative fact”
 Are there similar elements requirements in both claims, are the
facts intertwined so that it makes sense to bring them together, etc.
Look to what P will have to show for both claims.
o Federal claim must be “real,” not “makeweight”
o State issues can’t “substantially predominate”
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-
This is a discretionary doctrine; court need not take up state cases. Might want
state court to decide if:
o New issue of state law
o 2 different bodies of law, might confuse jury
o Claims are predominantly state claims
o If the federal claim goes away (dismissed, etc.)
- Might want federal court to decide if there are important questions of federal law
at play. Also, concerns about efficiency, fairness to the parties, etc.
Pendant party jurisdiction
- Jurisdiction over a different party
- Initially could be raised under the same standards as pendant claim
o Where congress has either implicitly or explicitly not granted jurisdiction
over a particular type of D for a particular claim, then the court cannot
exercise jurisdiction over that D through pendant party jurisdiction. No
pendant party jurisdiction for civil rights violations under 1983 against
municipal corporations (counties). Aldinger
 Finley v. US flipped this – unless Congress has explicitly granted
jurisdiction, we’ll assume there is none (reversed by 1367)
o Pendant party jurisdiction also can’t be used to get around diversity
requirements, even if the lawsuit is completely diverse at the outset; no
pendant jurisdiction in a diversity claim when such an exercise would
destroy complete diversity. Owen Equipment
- 1367, supplemental jurisdiction statute (p. 321)
o (a) codifies Gibbs language & includes joinder & intervention under the
same test
o (b) Court does not have jurisdiction over people joining / being joined
under 14, 19, 20, 24 when that would destroy diversity (undermine 1332
requirements)
o (c) Why district court can decline supplemental jurisdiction (pretty much
for reasons above)
o (d) affects statute of limitations
Removal
- 1441
o (a) Ds can remove cases to federal court, when fed.d.ct. would have
original jurisdiction
o (b) Federal question, can always be removed; Diversity cases can only be
removed if none of Ds is a citizen of the state in which suit is brought
o (c) If a federal question claim is joined w/ non-removable CoAs, district
court may remove the entire case & determine all the issues, or may
remand the state claims to state court
o Suits vs. foreign states; foreign state may remove to fed.dist.ct. for the
district within which the original suit was brought, case is tried w/o jury
- 1446 – procedure for removal, includes time limits, sequencing, when D can file,
etc. (p. 331)
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-
-
-
o Case that may be removed for diversity jurisdiction can’t be removed
more than a year after the case is filed; but if the case were amended so
that there’s a federal cause of action added, then it’s removeable.
1447, procedure after removal, includes filing of information w/ court, time limits
for motion to remand back to state court, how court is to treat joinder that would
destroy diversity (p. 332)
Ordinarily, the “well-pleaded complaint” rule applies to removal, too. But when a
federal law so completely pre-empts a state claim that there are effectively no
more state & only federal causes of action, then the case is removeable even
without a well-pleaded complaint. Met Life v. Taylor.
o Only 3 areas of law (statutes) – ERISA, NLRA, something financial
A case won’t be overturned on appeal for failure to remand an improperly
removed case to state court if, by the time of the final judgment, the jurisdictional
requirements were met. Caterpillar
o A party who’s in the process of settling isn’t dropped until the settlement
is final
o Efficiency concerns override at this point
o Different from Mottley b/c, by the time of judgment in Caterpillar, the
court did have power to hear the case. It just got there the wrong way
What Law Applies: The Erie Doctrine
- Becomes an issue b/c of concurrent jurisdiction; Easy in pretty much every
situation besides diversity (federal claim gets federal law, whether in fed or state
court; state claim gets state law in state court)
- S. 1652, p. 333 – the laws of the states are rules of decision, in cases where they
apply, & where the constitution, federal laws, and treaties don’t otherwise provide
(i.e. diversity)
o Originally, Swift v. Tyson held that the wording of the above statute
applied only to state statutes & not to state decisional law, or the common
law of the states
 Expected this to lead to uniformity among states, but states
continued to develop their own common law
 Also, lead to forum shopping, as between federal and state
systems, uncertainty for the parties as to which law applies, equal
protection issue (different outcome in different court)
o Then, Erie
 Swift was unconstitutional
 Concurrence doesn’t want to dispose of the case this way,
b/c it denies Congress the authority to empower judges to
create a federal common law
 Federal courts have no power to declare common law rules, and
under the above statute have to apply the relevant state court
decisional law – “there is no federal common law”
 Caveat: there is still federal judge-made law, in the sense of
judicial interpretation; this can be considered “common
law,” but not as it pertains to creating duties of care in tort
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
Residual language: “no one doubts federal power over procedure
Post-Erie
- The “outcome determinative” test: state law must be applied in a diversity case if
the state law would determine the outcome of the case. Guaranty Trust v. York
o Substantive / Procedural distinction does not matter
o More concerned with forum shopping and different outcomes – see this as
the core of Erie
o It’s not outcome determinative if it merely affects the “manner and
means” by which the case is tried
o Example of outcome determinative: a statute of limitations
- Byrd v. Blue Ridge – doesn’t overrule Guarantee Trust, but does soften & take
away from it
o Goes out of its way to articulate a different test for which law applies
 Is the state law merely a “form and mode” of enforcement, or is it
“bound up with the definition of rights and obligations”
 Then, have to consider the “affirmative, counterveiling
considerations” of the federal courts in following their own rules
 “Bound up with rights & obligations” deals with the legal
standards for people’s conduct outside of court, not how they
conduct themselves in court
o Burdens of proof are more “bound up” with rights and obligations
 Says something about nature of claim
 Also, deals with forum shopping concern, as burdens are likely to
affect choice of forum
o Trial by judge vs. jury is just a “form and mode,” also the federal system
has an important (& constitutional) interest in preserving the division it
sets up between judge & jury
o Plus, not clear that judge vs. jury choice is outcome determinative, since
judge & jury could come to the same conclusion
- Hanna v. Plumber: Guaranty Gone!
o “Outcome-determinative” was never the real test
o State law can’t trump the FRCP; follow federal law on procedural matters,
follow state law on substantive matters
 Know it’s procedural if it falls within the FRCP, and that’s within
the authority of the Rules Enabling Act
 Only deals with situations where a state law conflicts with a
FRCP – “consistent with the rules enabling act” just means
that the Rule was properly enacted
 Hanna doesn’t apply outside those situations; apply Byrd
otherwise
o In determining whether to apply state law, look to the policies underlying
Erie: block forum shopping and provide against inequitable application of
the laws
- Sometimes judges are called upon to determine what state law would be, when
courts haven’t ruled on the issue
12
-
o There is a process of certification to state courts; but state courts must
have certification procedure (not all do)
o Sometimes, federal courts change their interpretations of state law after
state decisions, or will reverse themselves b/c of a change in state law –
but not always
For the purposes of determining the 7th amendment right to jury trial issue,
federal courts must follow federal law to determine whether the claim was legal
or equitable (not the state characterization of the claim or relief). Amoco Oil Co.
v. Torcomian
Incentives to Litigate
Remedies:
- Different lawsuits have different bundles of remedies (see sheet); some are legal,
some are equitable – this has play in jury trial rights
- Substitutionary remedies (money) aim to restore a party to the position the party
would have been in, but for the harm caused by D
o This can include punitive damages
- Specific remedies: court orders a party to act or not to act
o These were historically equitable remedies, but some are legal
o Exceptions (specific legal remedies):
Damages
- Punitives without appropriate procedural constraints
o 14th amendment requires due process before deprivation of property
o More concerns about punitives than compensatory damages
 Process for figuring out $$ is less guided
 To the extent that punitives are punishment, that’s a lot like
criminal law
o There must be some sort of state review power based on the size of
punitives alone (new trial, damage reduction) b/c of the fear of
unreasonable / arbitrary verdicts; it is insufficient for due process to grant
no review over punitives unless there’s “no evidence” to support the
award. Honda Motor Co. v. Oberg
- Overly large punitives – SC refuses to lay down bright line rules, State Farm v.
Campbell
o Analyze punitive award in light of:
 Reprehensability of D’s conduct (physical vs. economic harm,
isolated vs. repeated actions, accidental vs. recklessness vs. malice)
 Disparity between the harm (compensatory) and punitive award
 Difference btw punitive damages awarded by the jury and civil
penalties authorized or imposed in comparable cases
o A single digit multiplier btw comp and punitives is presumptively
constitutional; a multi-digit multiplier is presumptively unconstitutional
 More might be OK, when compensatory damages are really low
and/or reprehensibility is really high
 Less might be required when above circumstances are reversed
13
o The defendant’s wealth cannot justify otherwise unconstitutional awards
of punitive damages
- This federalizes rules about punitive damages, though such damages are given in
tort (traditional state area)
- Such a rule might lessen deterrent effect; companies can now do a better job of
identifying likely punitive awards & factoring that into their budget
- If juries are aware of caps or multiplier, might provide perverse incentive to raise
compensatory damage award
- Might huge punitives be appropriate in cases of egregiously bad behavior?
Injunctive and Declaratory Relief
Injunctive
- 2 part test, Sigma Chemical v. Harris:
o Is there no adequate legal remedy
 Developed in law vs. equity system to establish hierarchy among
the courts
 As a practical matter, this comes up when damages cannot be
calculated, or when D couldn’t pay them
o Balance hardships to P if injunction denied vs. to D if injunction granted
 “No adequate legal remedy” might be double-counted
- Decision to grant made by judge
Declaratory
- 2201, p. 368 – so long as an actual case or controversy exists, a court may grant a
declaratory judgment, declaring the legal relations, obligations, and duties
between the parties, without granting further relief, so long as appropriate
pleadings are filed
- 2202, p. 368 – further relief may be granted based on a declaratory judgment
- Rule 57 – declaratory relief may be granted under 2201 pursuant to the FRCP
o Right to trial by jury may be demanded as under 38 – by deciding the
issue, the jury essentially renders such a judgment, in certain areas at
common law
o Declaratory judgment may be entered even if parties entitled to other relief
o Court can order a speedy hearing for DJs & advance them on the calendar
- Sometimes nominal “plaintiffs” are one that would be D in the actual action can
complicate jurisdictional issues
Provisional Relief
Preliminary Injunction
- May be granted if:
o P will suffer irreparable injury if the injunction’s not granted
o P is likely to win on the merits
o Balance the equities: D won’t be harmed more than P’s helped by inj
o Granting the injunction is in the public interest
- 2nd test, for when the balance of hardships is hugely in P’s favor:
o Balance of hardships tips highly toward P
o Must show probability of success and permanent injury, but “probability
of success” requirement isn’t as great – P must have raised a “colorable
case”
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Review for a grant of preliminary injunction is “abuse of discretion”
Rule 65(a)
o 1) Grants courts the power to grant preliminary injunctions
o 2)
 Court may consolidate PI hearing with trial
 Evidence presented becomes part of trial record, need not be
repeated
Due process requires notice & opportunity to be heard. Fuentes v. Shevin
- Must be a hearing prior to a right being affected or deprived (ex: injunction), even
for temporary deprivations of rights
- State may still secure property prior to final judgment, but must be a hearing first
- Reasons: value upon hearing people’s side, efficiency (don’t take the property to
give it back), make sure there’s no mistake, can’t undo the wrong, can’t contest if
you don’t have notice
- Exception to this: cases of emergency
Temporary restraining order (TRO) covered in Rule 65(b)
- TRO may be granted (without notice) if:
o Immediate & irreparable harm will happen before D or D’s attorney can
be heard (there’s a hearing? Let’s dig up the land before the court tells us
we can’t), and
o P’s attorney certifies to court any efforts made to give notice & why notice
shouldn’t be required
- Ends w/in 10 days unless extended for good cause
- TRO hearings have very, very high priority on the calendar
-
Pleading
Complaints & Responding to the Complaint
-
-
Pleadings are about getting the lawsuit started, putting D on notice, identifying the
issues in dispute, shaping discovery
o Not about developing factual proof; that’s what discovery is for
FRCP 3, filing a complaint commences a civil action
Rule 8
o A) A pleading shall include short & plain statement of jurisdiction, of
facts, and a demand for the judgment sought
o B) Defenses & denials – stated in short or plain form, D must admit or
deny each averment (or can say “w/o knowledge or information sufficient
to form a belief,” which counts as denial), general admits or denys OK,
pursuant to Rule 11 limitation
o C) Party must set forth affirmative defenses; if a counterclaim is
mistakenly set forth as an affirmative defense or vice versa, court corrects
the mistake
o D) Failure to deny in response = admit; If a pleading doesn’t require or
permit a responsive pleading, averments therein are taken as denied or
avoided
o E) Averments are to be simple, concise, & direct – no forms of pleadings
15

-
-
-
-
Party may set forth 2 claims or Ds alternatively; insufficiency of 1
doesn’t defeat sufficiency of pleading; party can state all claims /
defenses regardless of consistency
In Rule 8 denials, sometimes if a response doesn’t admit what’s true and deny the
rest, D may be estopped from denying something later. Zielinski v. PPI
o Ex: guy is injured in an accident, PPI answers in a way to make Zielinski
think they’re denying liability generally, not saying “it wasn’t us.” Statute
of limitations tolls, Zielinski can still sue PPI rather than the right D
o Prevent misunderstanding, trying to find a way to do justice to injured P
o If P hadn’t been injured, probably no issue here
o This sort of thing is very rare, may have depended on particular fact
situation (SoL tolling, the fact that PPI and other potential D were both
insured by the same co. and represented by same D attorneys)
For Rule 8 affirmative defenses, they have to be pled in the responsive pleading;
insufficient to just make a general denial.
Determining if sth’s an affirmative defense:
o “What P says happened, didn’t” vs. “It did or might have, but even so
we’re not liable because of some other facts”
o If it requires evidence not presented in P’s complaint. Layman v. SW Bell
Telephone
o 3 part test in Ingraham:
 Are the defenses “necessary” or “extrinsic” to P’s cause of action
 Which party is more likely to have access to the evidence
 Policy considerations for favoring/disfavoring the defense: why &
when courts should raise the issue, whether & when it will
constitute unfair surprise to P
An affirmative defense is waived if not timely pled. Ingraham v. US
o “Timely pled?” – Standard is very mushy; if you should have raised it in
the answer but didn’t it will be waived, but you can amend the pleadings
o After the trial is over, @ appeals stage, is definitely not timely
o Ingraham suggests that you might be able to get away with raising the
defense @ trial for the first time; you could, sometimes, particularly if the
issue emerged at discovery but wasn’t formally in pleadings
Rule 9 – pleading special matters
Rule 12(b) – defenses, objections, defenses as motions (to dismiss)
o 12(b) motions are pre-answer b/c they save the time of discovery, don’t
themselves require discovery, easy(ier) to resolve preliminarily, all based
on legal arguments
o Under a 12b6, court must assume that everything P says is true; tests legal
sufficiency of the claim
o If P has a claim and D has a defense, but D brings 12b6 and adds facts
about that defense, treat 12b6 as MSJ
o Case dismissed under 12b6 for:
 Lack of facts (factual sufficiency): P can return with more facts
 Legal insufficiency: no amount of that will help
o A 12(b) motion changes the time frame for filing an answer – see 12a4
16
-
Forms 2-18: examples of allegation of jurisdiction, complaint forms
A person need not suffer injury to a constitutionally recognized interest in order to
have a sufficient complaint: can be “injured in his person or property” without
that injury being constitutionally cognizeable. Haddle v. Garrison (at-will
employees)
- Rule 11: for all papers presented to the court, attorneys by signing represent that:
o Aren’t being presented for frivolous purposes
o Claims, defenses, legal arguments warranted by either existing law or
nonfrivolous argument for change in law
 Can’t award sanctions against parties for this one, only atty’s
o Claims supported by evidence or are likely to be, after discovery
o Defenses/denials are supported by evidence or a lack of knowledge
- Sanctions may be imposed, pursuant to Rule 11
o Prior to 1983, it was meaningless – no sanctions provision
o Btw 1983 and 93, was used as a weapon by litigators
o Now, there’s a middle ground – “may” instead of “shall” impose sanctions
o Law firms held jointly liable for violations brought about by their
employees
- Business Guides v. Chromatic – example of sanctioning
- Religious Tech v. Gerbode – deals with the “safe harbor” provisions – times
allowed for changes b/f sanctions can be imposed
Amendments
- Usually permitted with no big deal; rules aren’t intended to trip up parties on
technicalities. Usually only gets to be an issue if SoL has run
- 15(a), p. 41
o A party may amend once as a matter of right before responsive pleading is
served, or w/in 20 days if no responsive pleading is permitted & the case
isn’t yet on the calendar
o Otherwise, amendment only w/ written permission of adverse party, or
leave of the court to be given when justice so requires
o Sets time limit for pleading in response to amended pleading
- “When justice so requires” is broad and in trial court’s discretion, and should be
given unless factors exist such as bad faith, dilatory tactics, repeated failure to
cure deficiencies, unfair prejudice. Beeck v. Aquaslide
- Relation back = treat the amendment as filed on the date of the original pleading
- 15(c) – An amendment relates back to the date of the original pleading, when
o The law providing the statute of limitations permits relation back, or
o Claim or defense set forth in amended pleading arose out of the conduct,
transaction, or occurrence set forth in original pleading, or
o 15c3 deals with amending to change a party
- A claim/defense arises out of “conduct, transaction, or occurrence” when:
o Anything in the original pleading might have put D on notice of the new
complaint against him. Moore v. Baker
o Also, if the facts alleged in the original complaint could have given rise to
a number of claims, then any of these claims arises from same CTO
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o Does not arise from same CTO when the new claim deals with a different
time or situation (post-op negligence v. pre-op counseling). Moore
o The stage of the litigation also matters, i.e. whether discovery’s closed,
any prejudice to D’s ability to defend
o Might also matter why P didn’t bring the claim originally
Discovery
Scope & Limits
- 26(b)(1): scope & limits in general
o Parties can obtain discovery about anything that’s not privileged and is
relevant to a claim or defense; court can compel discovery if need be
o “Relevant” doesn’t mean “admissible at trial,” but “reasonably calculated
to lead to discovery of admissible evidence.”
o Where a party limits the scope of its request to only relevant information,
and doesn’t sweep too broad, that’s OK. Davis v. Precoat Metals
 Narrowing includes such things as w/in a time period, or in looking
at past claims against a D, claims brought by similar Ps at the same
job site
o The relevance relationship is to the claim or defense, not to the grant of
recovery. Even if the existence of some fact would prevent injunctive
relief (gay guy reinstated in the military), that doesn’t make the fact
relevant. Steffan v. Cheney
 Bigger point – figuring out what’s relevant turns on substantive
law; there’s a particular rule about these administrative
proceedings
 Damages are often part of the claim – hard to separate, might be an
artificial question
- 26(b)(2) – Limitations
o Court can limit # of interrogatories & requests, # and length of depositions
o Court may limit discovery if
 Unreasonably cumulative/duplicative, or if info can more easily be
obtained elsewhere
 Party seeking discovery has already had ample opportunity to get
information through discovery
 Burden of the expense outweighs its likely benefit
o Court may act on its own initiative or pursuant to 26(c)
- 26(c) – Protective orders
o Party from whom discovery’s sought may seek protective order; must
provide certification that they have in good faith attempted to resolve the
discovery dispute w/o court action
o Court, for good cause, can order limits, including those enumerated in the
rule, to protect from “annoyance, embarrassment, oppression, or undue
expense”
o If the court denies a protective order, it may simultaneously order disc
- Court’s decision to compel discovery is reviewable under an “abuse of discretion”
standard. Marrese v. American Academy of Orthopedic Surgeons
18
o Ex: when discovery order isn’t calculated to meet both P & D’s interests,
doesn’t properly factor in D’s interests in not having material discovered
o Discovery of things like membership rolls, membership applications butts
up against our freedom of association. Marrese
- In order compelling discovery, judge can (and sometimes should) do things like
review the material in camera or redact info to protect D. Marrese
Privilege
- Only communications are privileged; the facts upon which they are based are not
- Examples: attorney-client, doctor-patient, psychotherapist-patient, priest-penitent
- Communications must be treated as confidential, otherwise privilege is waived
o Don’t talk about it where 3rd parties can/do hear
o If it’s documents, make sure they say “confidential” and explain that
they’re privileged
- How does a corporation work, for privilege?
o Old test: control group: the people in a position to direct company
activities in response to legal advice are the corporation as a client, for
atty-client privilege purposes
o That was no good, b/c part of atty’s job is gathering information in order
to give legal advice; that info probably won’t come from control group
o No bright-line rule laid out – Upjohn
 @ Very least, control group still counts
 If you’re talking to other company employees in order to gather
information for the sake of giving legal advice and it’s kept
confidential, then it’s probably privileged (within reason)
- Trial preparation materials, prepared by the attorney for litigation, are protected as
“work product” even though they’re not privileged. Hickman v. Taylor
o “Discovery was hardly intended to enable a learned profession to perform
its functions either without wits or on wits borrowed from the adversary” –
Jackson’s concurrence
- 26(b)(3) now sets the standard for work product protections
o A party may obtain discovery of work product only if
 The party has substantial need of the materials in preparation of
their case, and
 The party can’t, without undue hardship, obtain the materials
through other means
o If discovery is ordered, court must protect the mental impressions,
conclusions, opinions, or legal theories of the other attorney
o Without the above showing, a party can obtain previously made
statements concerning the action or its subject matter, previously made by
himself: includes:
 Written statement signed or adopted by author
 Transcript or copy of statement, if it’s substantially verbatim
- 26(b)(5) – A party claiming privilege or work product must do so expressly and
with enough detail that, though the information isn’t given, others can assess the
applicability of privilege / work product
Procedures & Methods
19
-
-
-
-
-
26(d) – Timing & Sequence
o Parties can’t seek discovery before 26(f) conference
o Other than that, free to conduct discovery in any order, and one party’s
discovery doesn’t delay another party’s
26(f) – Conference of parties, planning for discovery
o At least 21 days before scheduling conference, parties must get together to
exchange or arrange for exchange of the 26a1 mandatory discovery info,
form a discovery plan, come up with any changes to ordering of 26a1
exchange, any limitations on discovery
o Attorneys and unrepresented parties are responsible for setting this up;
court can order personal attendance, alter timing
26(a)(1) – Required disclosures, methods to discover additional matter
o Party must disclose, w/o discovery request, certain things which may be
used to support its claims or defenses, w/in 14 days of 26(f) conference
26(a)(2) – Disclosure of expert testimony
o Party must disclose identity of expert
o Expert must provide report, detailing all sorts of stuff
o 90 days notice b/f trial date of expert testimony, or 30 days if the expert is
just for rebuttal
Rule 30 – depositions
Rule 33 – interrogatories (no more than 25 Qs, including discreet subparts)
Rule 33 – document requests, entry upon land
Rule 37 – Failure to participate in discovery; compulsions and sanctions
Resolution w/o Trial
Defaults, Dismissals, & Settlements
- Rule 41: Voluntary dismissal
o A1) P can dismiss w/o leave of court, and such a dismissal is without
prejudice the first time. After that, dismissal of an action based on or
including the same claim counts as an adjudication on the merits
o A2) Except as above, suit won’t be dismissed just b/c P wants to – must be
on order of the courts.
 If D has counterclaimed, P’s suit won’t be dismissed over D’s
objections unless the counterclaim can remain by itself
 Unless otherwise specified, dismissal under A2 is w/o prejudice
o B) Involuntary dismissal:
 C) D can move for dismissal pursuant to violations of this rule or
orders of court
 Dismissal under 41(b) or any other outside 41 is an adjudication on
the merits, unless the court says otherwise
 This doesn’t apply to dismissals for lack of jurisdiction,
improper venue, or failure to join a party under rule 19
o C) Dismissal of counter-, cross-, or 3rd party claim
 41(a)(1) applies to voluntary dismissals of these claims; those shall
be made before responsibe pleadings are served, or if there is none,
before introduction of evidence @ trial / hearing
20
o D) Costs of previously dismissed action
- Rule 55: default
o A) entered for failure to plead or defend
o B) how it may be entered
o C) Entry of default may be set aside “for good cause shown,” judgment by
default can be set aside in accordance w/ 60(b)
o D) Rule applies whether parties getting judgment by default are Ps, 3rd
party Ps, or parties pleading cross-claims and counterclaims
o E) No judgment by default against US unless P proves her claim.
- Most common reason for the voluntary dismissal is the settlement
o Only 2% of cases end in trial
o Parties create agreement and contract, court will enforce it to the extent
that they’ll enforce any contract
 Ds usually want the dismissal with prejudice, so that the case goes
away forever (usually in exchange for money)
 Settlement agreement, contract not filed with the court
o Sometimes, parties get a consent judgment
 Ex: need them in class action lawsuits
 If parties want the court’s stamp of approval, more assurance of
enforcement
o Sometimes settlement agreements will include P’s silence about her claim.
When this happens, and someone in another case seeks to discover
information pertaining to P’s claim, courts might enforce the settlement
agreement in that P can’t talk about the terms of the agreement, but might
allow P to answer questions about the underlying facts. Kalinauskas v.
Wong
- Growing hostility to secret settlements, as evidenced by the South Carolina rule
change
Voluntary & Court-ordered Mediation
- Federal law requires courts to adopt local rules requiring some form of early ADR
- Mediation: someone hears both sides, helps them discuss, but does not try to issue
any sort of judgment or provide agreement position
- Also, early neutral evaluation, like summary jury trial
- Courts keep lists of “neutrals”
- Usually, facts and information presented in mediation is not useable r in court
- Obligation to participate in good faith is very important. Nick v. Morgan Foods
Summary Judgment
- Rule 56 – Summary judgment
o 56a – claimant may move for summary judgment after 20 days from
commencement of action, or after service of motion from adverse party
o 56b – D may move for summary judgment at any time
 For both, they may do so with or without supporting affidavits and
as to any or all issues
o 56c – motion to be granted if there is “no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law
21

If a party who bears the burden of proof on an issue can’t establish
one of the essential elements, their case gets disposed of through
SJ – all other facts are no longer material. Celotex
 The party that doesn’t have the burden of proof only by pointing
out an absence of evidence, presented by the party w/ the burden,
as to that element to get SJ; doesn’t have to affirmatively disprove
an element to get SJ. Celotex
 Nonmoving party opposes by coming forward with specific facts
that demonstrate GIMF
o 56d – if the SJ hearing doesn’t dispose of everything, a court can deem
some issues settled and hold trial on the rest
o 56e – Standard for affidavits (must be based on personal knowledge);
when one side moves for summary judgment, the other side can’t just rest
on the pleadings but must show there’s an GIMF for trial
o 56f – if a party opposing MSJ cannot present facts by affidavit to stop the
grant, court may refuse to grant SJ or may order a continuance to gather
more facts
o 56g – Any affidavits presented in bad faith can render a party liable to the
other side for expenses ($$) and may be held in contempt
- Tests the sufficiency of the evidence, rather than of the claim (like 12b6)
- Disposes of cases about which there’s nothing to have a trial
- When faced with a MSJ and an adverse party’s claim that “we have a right to
cross examine,” the court will assess whether that right is sufficient to defeat MSJ
based on (Lundeen v. Cordner – SJ, Cross v. US – no SJ):
o Is there a legal presumption working for or against the moving party?
(Lundeen – For, Cross – Against)
o Subjective component – does the court feel that it’s getting it right on the
merits by granting SJ?
o When there are mixed questions of fact and law, or the key “facts” involve
the potential witness’ motive, or there is some reason to doubt the witness’
testimony and allow cross to probe credibility
- Liberal grants of MSJs put more strain on the discovery process
- Used more often by Ds than Ps, or on purely legal issues
Jury Trial
The Right to a Jury Trial
- FRCP 38:
o A) Right exists as under Constitution (right preserved in all suits @
common law), or as granted by statute; right is inviolate
o B) party may get a jury trial by demanding it in the pleadings or within 10
days after service of them
o C) Party may specify the issues to be tried by a jury, otherwise a claim of
“jury trial demanded” gets a jury trial for all issues so triable. Demanding
a jury trial to some issues gets the other side the right to demand a jury
trial as to the rest
o D) If you don’t demand a jury trial, your right is waived; demand may not
be withdrawn w/o consent of parties
22
In determining whether the right to trial by jury is “preserved,” ask whether the
case would have been triable to a jury if brought in 1791. Teamsters v. Terry. 2
part analysis:
o What’s the most closely analogous cause of action from 1791 to the
present case?
 Analysis might be a wash, because the case may have no neat
analogue, or might be analysis to legal case in some respects but
equitable in others
o Is the remedy legal or equitable?
 Generally, $$ amounts are legal and all other remedies are
equitable, but there are exceptions. Look to the sheet
- Courts usually hold that new claims for $$ damages carry a right to a jury trial
o Also, when the enacting statute mentions “legal” or “legal and equitable
relief,” then that grants a right to a jury trial
o Actions just for reinstatement or promotion are equitable, but actions for
those + back pay, when there’s no language as above, are questionable
(especially when there’s language that says “compensatory damages shall
not include back pay – makes it seem more like restitution)
- Right to a jury trial has been restricted as to patents
o Judges are better than juries at construing written documents (limited to
patents area only)
o When the only “claim” is that something infringes a patent, that’s a pure
judge issue
- The jury trial right remains whenever a legal claim appears in a suit, even if it’s a
counterclaim, or if joined with equitable claims. Amoco Oil v. Torcomian
o Once there is a legal claim in the suit, there’s a jury trial right.
o Risk of potentially contradictory results, which you resolve by having the
jury decide first, and the judge has to decide the equitable issues in a
manner that respects the jury’s decision.
o But apart from this, judge has power to decide; must respect the jury’s
findings, but there may be more to determine before he decides whether to
issue an injunction
The Jury’s Role
- @ bench trial, judge must explain his conclusions, his reasoning, etc.
o Role in jury trial: filter for the jury, decides what’s appropriate for jury to
hear
o Decides what law applies
- Nothing like that for juries; doesn’t have to disclose anything. Like a black box –
know what goes in & what comes out, but not why
o Role: determine issues of fact
- Fact/law distinction also important for appellate courts, which are very deferential
on questions of fact
- Can be difficult to determine what are questions of “fact” and “law”
o Can be some circularity: “issues of fact” are for the juries to decide, and if
a jury decides it, it’s an issue of fact
-
23
o Questions of fact have legal implications, and the juries do apply the law
to the facts in rendering their verdict
o No abstract way to know which is which; look to history, precedent, etc.
o Example: Dobson v. Masonite Corp. – a question of whether a contract
was one for goods or one for services was a question of fact; if there had
been no dispute as to which type of contract, then the judge could have
resolved it as a matter of law (look to state law for this, b/c diversity case)
- If the jury could not have decided the issue in a legitimate way, then the judge can
take it from them and decide the case. Reid v. San Pedro RR
o The party with the burden must present enough evidence such that a
reasonable jury could have concluded that the party met its burden
o Also, if the evidence is in equipoise, then party w/ burden loses
o If there’s not enough evidence that a reasonable jury could determine it’s
more likely than not that X happened (or whatever the burden), then the
judge can issue a directed verdict
o On the other hand, if the party does present enough, case just gets to the
jury; doesn’t compel their decision
Procedural Controls (Burdens, Directed Verdict, JNOV)
- Burden of persuasion rarely matters, in civil case; only in equipoise
- Burden of production matters a great deal
o This is the burden of producing enough to enable the decisionmaker to
decide in your favor; not to compel a decision
o If one fails to satisfy that, P can lose even before trial
- Rule 50 – judgments as a matter of law
o A) If a party’s been “fully heard” on an issue and there’s no legally
sufficient basis to conclude for the party on that issue, then court may
grant JML as to that issue & JML against that party, on claims or defenses
that can’t be maintained or defeated w/o favorable finding on the issue.
Motions for JML can be made @ any time before submission of case to
jury
 Used to be called “directed verdict”
o B) If court doesn’t grant motion for JML @ close of evidence, court has
submitted action to the jury pending later decision on the motion. Party
can renew motion after entry of judgment.
 Used to be called j.n.o.v. (judgment nonwithstanding the verdict)
 Rule is written this way b/c of 7th amendment: @ common law,
there was no reversal of the verdict after the fact. But if you just
“postpone the motion…”
 Same standard as JML before the verdict
o C) Court rules on motion for new trial @ same time as renewed motion for
JML; can grant both; does not affect the finality of judgment; can order
conditional grant of new trial
 This allows appellate courts to decide orders of new trial on
review, b/c there must be a final judgment to decide on that
24
o D) If trial court denies motion for JML, it can assert grounds for grant of
new trial; appellate court can then decide either that the moving party gets
a new trial, or that the trial court must hear a motion for such.
- Tension: want to preserve the province of the jury, but want trial outcomes to be
rational
o General black letter law: in granting JML, judges do not make judgments
about the credibility of the witnesses, even when the case seems strongly
one-sided.
o If one party has only presented evidence that’s very speculative, or purely
circumstantial evidence that doesn’t bear on the issue without the witness
making conclusions, then that’s enough for JML – Pennsylvania RR v.
Chamberlain
- Jury instructions are directed at two audiences: the jury itself, and the court of
appeals – instructions must be simplified & easy to follow, while a correct,
nuanced, balanced, all-inclusive statement of the law – hard to do
New Trial
- Rule 59 – new trial
o A) Grounds
 For suits tried to a jury, for any grounds for which new trials have
been ordered @ common law
 For suits tried w/o jury, for any grounds … @ equity
 FRCP kind of punts on the issue of setting up a legal
standard for the degree of scrutiny
 Court may open judgment, hear new evidence, amend findings,
enter new judgment
o B) Time limit for motion for new trial – 10 days after judgment
o C) If motion for new trial is based on affidavits, file those with the motion;
opposing party has 10 days (extendable to 20) to file opposing affidavits.
o D) W/in 10 days of judgment, court may order new trial sua sponte, for
any of the reasons that would justify a grant if there were a motion. Court
must specify grounds
o E) Motion to amend or alter judgment – also 10 day time limit
- New trials may be ordered for flawed procedures: improper argument, error in
admitting evidence or instructing jury, juror misbehavior
- May also just conclude the verdict is unjustifiable – against the weight of the
evidence
o Standard for granting this, “verdict is against weight of evidence,” is lower
than standard for granting j.n.o.v., “no sufficient evidentiary support,” b/c
it just starts the trial over & doesn’t make the winner into the loser
o This doesn’t just mean that trial judge can order a new trial if jury
disagrees with how she’d have voted – rather, “great weight” of evidence.
- Standard for review of grants of new trial (when they can be reviewed – can’t
unless there’s a final judgment) is “abuse of discretion.”
o Grants of new trial will be reviewed with more scrutiny when the grounds
is “against the weight of the evidence” rather than error in admitting
evidence or in instructing the jury
25
 More of a fear of usurping jury functions
o Also, if the ground for new trial is “against the weight of the evidence,”
then there will be more scrutiny or less scrutiny of that decision depending
on whether the subject matter of the lawsuit is within the comprehension
of laypeople
Respect for Judgments
- 1738, p. 335 – Generally, one state must give “full faith and credit” to all
judgments entered other states as it would give to its own judgments under its
own rules
- To effectuate that, claim & issue preclusion
- Both are affirmative defenses that should be set forth in answer, in accord with
Rule 8(c)
- Revisit Pennoyer when I get here
o Collateral attack runs into Full Faith & Credit problems
o Limit of full faith & credit = due process clause – verdicts rendered
without jurisdiction have no preclusive effect
Claim Preclusion
- Also called “res judicata,” estoppel by judgment
- Forbids a party from relitigating a claim that “could” and “should” have been
raised in former litigation – 2 tests
o One suit precludes another when the parties and causes of action are
identical
 Causes of action are identical when the evidence necessary to
sustain the one verdict would also sustain the other (and therefore
the evidence alleged in proof of one would be alleged in proof of
the other) – in other words, they’re based on a common core of
operative facts – Frier, test 1
 Restatement: preclusion when both suits arise out of the same
transaction – broadly defined to include matters related in time,
space, origin, and motivation – Frier, other test
 The United Mine Workers’ “common nucleus of operative
fact” test for pendant jurisdiction is the same as this one
 Trend is toward the broader test
- “Could” – where the multiple causes of action or claims could have been joined
together in one lawsuit
- “Should” – beyond above tests, also have to look to the reasons behind claim
preclusion: efficiency and consistency – Heaney
o If the suits couldn’t have efficiently been brought together, then they
“shouldn’t” have been brought together, and preclusion won’t apply. Ex:
when someone’s trying to get quick relief, and they don’t assert a 2nd
claim that they could assert, b/c that would lengthen the trial time
o Also, if the suits can be decided in a way that’s consistent, such as that
someone’s entitled to damages but not to injunctive relief.
- If the original lawsuit is a state lawsuit, look to the state law of preclusion
- FRCP, Rule 13(a) – Compulsory counterclaim
26
-
-
-
o A pleading shall state a claim that, at the time of serving the pleader has
against opposing party, provided:
 That claim arises out of the same transaction or occurrence that’s
the subject matter of the opposing party’s claim
 Doesn’t require for adjudication presence of 3rd parties that the
court can’t acquire jurisdiction over
o Party need not bring a counterclaim if:
 @ the time of opposing party filing suit, the counterclaim was the
subject of other pending action
 Opposing party brought suit by attachment or somehow that it
didn’t get personal jurisdiction to adjudicate the claim
 This is talking about where the court doesn’t have personal
jurisdiction over D, just jurisdiction over property, and the
only reason that D is in court is b/c his property is affected,
but he shouldn’t be forced to consent to personal
jurisdiction, so the counterclaim isn’t compulsory
Of course, if there was no responsive pleading (answer), then 13(a) doesn’t apply!
Martino
o Res judicata also potentially bars D from bringing claims that D should
have brought the first time – not just compulsory counterclaims, had there
been a pleading, but also defenses
o Nonetheless, can have claim preclusion through common law
o “Judgment on the merits is an absolute bar to relitigation btw the parties &
those in privity w/ them of every matter 1) offered & received to sustain or
defeat a claim or demand and 2) to every matter which might have been
received for that purpose.” Martino
o Takes seriously the concern of reliance upon past judgments
Preclusive affect attaches to judgments “on the merits,” which begs the question
b/c “on the merits” has come to mean “a judgment that will have preclusive
effect”
o 12b6 dismissal does count as a judgment on the merits, but trial court
shouldn’t dismiss for failure to state a claim without allowing leave to
amend at least once
o You also have to look at state law in preclusion situations, even if it’s not
a diversity case, if a state court decided the 1st case, because Full Faith
and Credit requires that a court give prior judgments the same effect they
would be given by courts rendering the prior decision
o States may have contrary preclusive rule; under Semtek, that rule should
be applied in diversity cases – Gargallo
 This involves looking at whether a state court would give
preclusive effect to prior state court decisions lacking jurisdiction
(for example: state decides an exclusively federal question)
Modern rule: once the first lawsuit has ended, there’s a presumption that finality
wins; particularly when the issue of subject matter jurisdiction is raised, litigated,
and decided by judge in 1st lawsuit (even if wrongly decided)
27
-
-
o Unless subject matter of action was “so plainly beyond court’s
jurisdiction” that allowing it was a huge abuse of authority, or allowing
judgment to stand would infringe the authority of another agency / tribunal
/ branch of gov’t
Rule 41(b), effect of involuntary dismissal
o D may move for involuntary dismissal of P’s action for P’s failure to
prosecute case or comply with court rules
o A dismissal under this rule, and all others, operate as adjudication on the
merits unless the court says otherwise
 Exceptions: dismissals for lack of jurisdiction, improper venue,
and under Rule 19 (Joinder of Persons Needed) do not operate as
adjudications on the merits
Semtek – qualifier to Rule 41(b)
o General rule is: if your suit is dismissed on SoL grounds, you are free to
refile in another state with a longer SoL that hasn’t yet expired
o Dismissal “on the merits” or “with prejudice” only necessarily means that
you can’t bring the same suit again in the same court; not all dismissals on
the merits will have preclusive effect
o The claim-preclusive effect of a prior federal court judgment, sitting in
diversity, will be the same as that of the state court decision in that state
would have been (builds on Gargallo)
o Adoption of this rule to bar forum shopping
o SC is ultimate arbiter of the claim-preclusive effect of federal judgments
Issue Preclusion
Test: an issue will be precluded when
1) An issue of fact or law is
2) Actually litigated or determined by
3) A valid and final judgment and
4) The determination is essential to the judgment, and
5) **The determination is between the same parties
-
-
Also called “collateral estoppel,” “estoppel by verdict,” and sometimes,
confusingly, “res judicata”
Comes into play when a claim is not barred, but when some issue involved in the
claim has been previously litigated
Can apply to findings like “no jurisdiction,” if Redner had gone back and refiled
A finding of no subject matter jurisdiction is binding (see pp. 190-192)
o Failure to raise it may or may not preclude raising it on appeal
o Failure to appear in first suit may or may not (probably does) prevent
collateral attack on subject matter jurisdiction
A “Lack of subject matter” jurisdiction finding does not preclude P from refiling
in state court, under state law.
o But a “lack of personal jurisdiction” dismissal will, b/c that will bind the
state court (scope of state court personal jurisdiction is the same as the
federal court within that state)
28
o Of course, if you dismiss on both grounds, neither is essential to the
judgment
Illinois Central Gulf RR v. Parks – an issue is not “actually litigated or determined” by a
jury when the jury could have reached its conclusion in 2 or more different ways
- Jury doesn’t provide reasons why it found as it did; just the verdict
- Could have reached the verdict in 2 different ways (or for both reasons)
- Don’t know which reason for reaching the verdict; wasn’t determined
Benson & Ford, Inc. v. Wanda Petroleum: A nonparty to the original suit may be
precluded where:
- The nonparty succeeded to the party’s interest
- The nonparty “controlled” the original suit
o Not sufficient to have the same attorney, that you helped finance litigation,
testified, or contributed
o Had to have control over choice of legal theories & proofs, decision to
obtain appellate review
o Ex: insurer controls defense, president & sole shareholder controls co.
- Nonparty’s interests were adequately represented in the original suit
o Demands express or implied legal relationship in which 1st parties are
accountable to subsequent parties (class action, trustee/beneficiary,
agent/principal, guardian/ward)
o Requires more than parallel interests or same attorney
o When there’s a public right @ question, the government adequately
represents private citizens who might bring a claim later
o If a person appears in a suit in their representational capacity, they might
bar the person they’re representing; but they don’t necessarily bar
themselves from suing D later as themselves
Offensive Collateral Estoppel, Parklane Hosiery v. Shore:
- If 1 P sues a D for negligence (say car accident), another person, riding in P’s car,
can sue D and preclude D from relitigating negligence
- D cannot import a finding of no negligence against a 2nd P, though
- Concerns about letting each litigant have day in court: D had his, P2 did not
- P can apply Offensive collateral estoppel against D if:
o P could not have joined the earlier action, and
o Applying offensive collateral estoppel would not be unfair to D
 D didn’t litigate issue as vigorously, or chose not to appeal (1st suit
was for small $$, later for big $$); difference in procedures btw 1st
& 2nd suit,
 Also unfair if the judgment relied upon is inconsistent with other
judgments (ex: one finding for D & one against D, P3 seeks to use
the 2nd judgment) State Farm v. Century Home Components – 50
suits from a fire
29

Who the factfinder is (judge v. jury) is not a procedural difference
that makes something unfair, no 7th amendment issue, will not
serve as a reason not to apply estoppel
- Grant of such estoppel is in discretion of trial court; it’s not required
- The United States is not subject to nonmutual issue preclusion (but it is subject to
mutual issue preclusion) – note in book
Defensive Collateral Estoppel:
- P sues D1 for trespass; turns out P is not the owner
- P sues D2 for trespass; D2 can preclude P from relitigating that issue
Joinder
Of Claims & Counterclaims
- Have to ask if jurisdictional reach extends sufficiently to allow joinder
- Joinder also sought sometimes to achieve preclusion
- FRCP 18 – a person asserting a claim may join any other claims he/she has
against that party
o Permits joinder, but does not compel it
- 28 US 1367 – same “supplemental jurisdiction” concerns as above apply
o Counterclaims originally were under “ancillary jurisdiction,” just as
joinder of claims was “pendent jurisdiction,” but now they’re all
“supplemental jurisdiction”
o Diversity requirement only applies to additional claims brought by P, not
counter or cross claims brought by D
o For exercise of supplemental jurisdiction, we still have to ask whether the
court had jurisdiction and venue
 But, supplemental jurisdiction does give the court subject matter
jurisdiction
 But, you still have to ask whether there is subject matter
jurisdiction over the new party
- Rule 13: Counterclaim and cross-claim
a) Compulsory counterclaim (if you don’t bring it, you lose it) when the
pleader has a claim against opposing party that arises out of same
transaction or occurrence & doesn’t require presence of opposing parties,
but not if
i. Counterclaim was already subject of another pending action
ii. Opposing party brought suit such that court didn’t acquire personal
jurisdiction
b) Permissive counterclaim – any not arising from the same transaction or
occurrence
i. Put those two together, you can bring anything!
g) Cross claims against co-parties ok
h) Persons other than original parties may be made parties to a counter- or
cross-claim, under rules 19 and 20
- If something doesn’t fall under 13(a), counterclaim is permissive, not mandatory
30
o But, even if it’s permissive, you have to ask if the court has subject matter
jurisdiction over the counterclaim; Rule 13 doesn’t grant subject matter
jurisdiction
o Must be federal question, diversity, or the counterclaim must arise out of
the same conduct, transaction, or occurrence as original claim
o CTO test is the same for supplemental jurisdiction as for compulsory
counterclaim
- 4 possible tests for whether a counterclaim arises out of the same transaction or
occurrence and is thus compulsory:
o Issues of fact & law are largely the same
o Absent the “compulsory counterclaim” rule, would res judicata bar the
defendant’s subsequent suit? (if so, then it’s compulsory)
o Will substantially the same evidence support or refute P’s claim as D’s
counterclaim?
o Is there any logical relationship between the claim & the counterclaim?
 Court likes this one – Plant and Great Lakes Rubber Corp. v.
Herbert Cooper Corp.
 “Aggregate of operative facts” – rephrasing
 Makes a difference how narrowly or broadly the court views the
counterclaim – policy reasons might factor in here
- Both Plant and Great Lakes – if a counterclaim is compulsory, it will be within
the ancillary jurisdiction of the courts.
- “Same transaction or occurrence,” the old common-law test for ancillary
jurisdiction, will satisfy the new “same case or controversy” test for supplemental
jurisdiction under 1367, since the 2nd one might be broader than the first
Of Parties
FRCP 20: Permissive Joinder of Parties
a) Permissive joinder – of Ps or Ds (either), if both:
a. They assert a right to relief arising out of same transaction or occurrence
b. Any common questions of law/fact will arise in the action
b) Court can order separate trials for several reasons
FRCP 21: Misjoinder – Not grounds for dismissal; court can add or remove parties, sever
claims
FRCP 42 – Consolidation and separation of trials
Mosley v. General Motors Corp. – example of when similar-looking claims are not
joinable
- Seems that there’s a logical connection, possibly common issues of fact
- It is within the trial court’s discretion to allow joinder of claims of plaintiffs or to
separate different cases for trial; trial court has a lot of discretion
FRCP 14(a) When D may implead another D as a 3rd party P
- New D must be liable to old D (3rd party P) for P’s claims against old D
o Watergate Condo v. Wiss Janey Elstner Assoc. touches on this – “it’s not
me, it’s him” doesn’t fly, but “if it’s me, it’s also him” does
31

-
A 3rd party D is liable to a 3rd party P where there is some kind of
relationship between them.
 In Watergate Condo, there was no contractual relationship between
Legum & Norman and the contractor; Watergate hired the
contractor directly
o Also from Watergate – there might not be any liability of D2 to D1 when
P in his suit asserts that the 3rd party D did nothing wrong
Rest deals with its sequencing, what other claims are permissible
Compulsory Joinder
FRCP 19
a) Person who is subject to service of process and whose joinder will not deprive the
court of jurisdiction can be joined if:
1) Complete relief cannot be accorded among existing parties in that person’s
absence, or
2) Person claims an interest in the subject of the litigation and absence may
i. Practically speaking, impair or impede person’s ability to protect those
interests, or
ii. Person’s absence may leave Ds in suit subject to double, multiple,
or inconsistent obligations
b) When person can’t be joined, court shall determine whether the action shall
proceed; lays out a list of relevant factors
D’s might raise this to force dismissals: P will be told “join this party or your case is out”
Most often applies to joint obligors under a contract or joint owners of property; don’t
read the requirements too broadly
Temple v. Synthes Corp. – Joint tortfeasors are not subject to compulsory joinder
- Respect party autonomy (P)
- No party is subject to inconsistent obligations; closest to that is that neither D will
be liable to P and P will lose both times
- No problem affording complete relief: either one tortfeasor is liable or it is not
- Also, neither D is prejudiced by the other’s actions
Helzberg
- When compulsory joinder is not possible (destroys diversity), it will matter for
dismissal under this rule (other party is “indispensable” under (b)) whether the D
brought the possible inconsistent obligations on himself
- Can possibly solve compulsory joinder problem of destroying diversity by
transfer w/in federal system, or dismissing & letting P refile
Class Action
Class Certification
- Named parties suing on behalf of entire class, representing unnamed parties,
judgment potentially binding on all class members
- Evidentiary support must be presented to the court, can’t just look at pleadings;
usually, there’s a hearing
- (a)(1-3) ensure efficiency concerns; a4 is about protecting nonnamed parties
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-
Might prefer a class action to another lawsuit when standing requirements get in
the way (i.e. the person will graduate before suit is resolved, Communities for
Equity)
FRCP 23 – Class actions
a) Requirements
1) Class is so numerous that joinder is impracticable (numerousity) – no hard and
fast number, some courts use 100 as a cutoff
2) There are questions of law and/or fact common to all class members
(commonality) – can be some differences, but the common questions must
advance the litigation (did D violate this statute?)
3) Claims / Defenses of representative parties are typical of the class (typicality)
– associations, representing a group of individuals, can act as class
representatives; this helps typicality
4) Representative parties will fairly & adequately protect class interests
(adequacy) – the fact that some don’t want to bring the claim doesn’t
undermine adequacy
b) Class actions maintainable when (a) is satisfied, and
1) Prosecution of separate actions would create a risk of
A) Inconsistent or varying adjudications which would establish incompatible
standards of conduct for party opposing class
B) Adjudications of individual members which would as a practical matter be
dispositive of the interests of nonmember parties or hurt their ability to
protect their interests
2) Party opposing the class has acted/refused to act on grounds generally
applicable to the whole class, thereby making injunctive or declaratory relief
appropriate w/ regard to the class, or – this was written with civil rights
plaintiffs in mind, injunctive or declaratory relief can’t just be nominal
compared to damages
3) Common questions of law or fact predominate individual ones and class
action is superior to all other means or resolution; pertinent matters include:
A) Interests in members of the class of controlling prosecution or defense of
separate actions
B) Extent & nature of litigation already commenced by / against class
members
C) Desirability / undesirability of concentrating claims in 1 forum
D) Difficulties likely in management of class action
Causey
- A risk of inconsistent judgments is not the same as a risk of inconsistent
obligations, under 23(b)(1); some Ps might win and some lose, but D ultimately
doesn’t have to do inconsistent things, and res judicata wouldn’t bind other Ps,
they would get their day in court
- (b)(2) isn’t applicable when the relief sought is wholly or predominantly money
damages
33
-
Harder to get certified as a (b)(3) class; need for a class remedy is less clear here
than in civil rights cases (b)(2), or in situations similar to compulsory joinder
(b)(1)
o When the $$ amount is high, that leans towards members having a high
interest in controlling litigation
o Also, different bodies of law might pose problems
Class Action Fairness Act: federal courts now have jurisdiction over classes when:
- There is minimal diversity: ANY P is different than ANY D
- The aggregate amount of claim exceeds $5,000,000
- Old way: same complete diversity requirements btw all NAMED Ps and all Ds,
every class member needs to have a claim in excess of $75,000
- Also for coupon settlements, attorneys fees now need to be conditioned on the
number of coupons actually redeemed
Constitutional Considerations
Hansberry v. Lee
- There are constitutional concerns to precluding people in future lawsuits who
weren’t parties (or who were nonnamed class members)
- Representation must be adequate; it is not adequate if all people who are free to
either assert or challenge rights are lumped together in a single class so that any
member will be adequately represented b/c the representatives pursue one of the
alternatives
- Absent class members may collaterally attack the first suit for lack of adequate
representation
- Also, shouldn’t be preclusion under these facts, because matters aren’t actually
litigated and determined if they’re stipulated to
Phillips Petroleum v. Shutts – unnamed Ps do not have the same due process personal
jurisdiction rights as foreign Ds; notice and an opportunity to opt out are sufficient for the
court to acquire jurisdiction
- Class certification safeguards P’s interests; nothing to protect foreign D’s interests
- Ps are also not dragged into court, forced to show up & defend selves
- Notice is not required for (b)(1) or (b)(2) plaintiffs
Notice & Settlement
23(c)(2) – notice requirement
- No notice required for (b)(1-2) classes, but court may direct notice
- Notice required for all (b)(3) classes: must be “best practicable under the
circumstances” including individual notice to all members who can be identified
through reasonable effort
o Also tells what each notice must state
23(d) – Orders in conduct of actions – also contains a bit about directing notice
23(e) Settlement, Voluntary Dismissal, or Compromise
1)
a. Court must approve any settlement, VD, or compromise
b. Court must direct notice to those affected
34
c. Court may approve one of these after a hearing & determination that it’s
fair, reasonable, and adequate
2) Parties seeking settlement must file a settlement statement
3) Court can refuse to OK one of the above unless parties grant another opt-out
opportunity for class members who had an earlier opportunity to request
exclusion, but didn’t
- Class members have the right to appear and object at these hearings
Eisen v. Carlisle & Jacquelin
- In the case of known class members, due process requires actual effort to notify
- Notice requirements not as strong for unknown beneficiaries
- But, rule 23(c) is very specific: must be individual notice to all those members
who can be IDed through reasonable effort
- D can’t be required to pay for notice costs, no matter how likely D is to lose; this
mixes class certification with a judgment on the merits; class certification turns on
23(a-b) ONLY
Wetzel v. Liberty Mutual Insurance Co.
- If a class was properly certified under 23(b)(2) initially, but at some later point
injunctive relief is no longer appropriate, you don’t have to go back and recertify
it as a 23(b)(3) class and then provide notice
- When you can seek compensatory and punitive damages as well as injunctive
relief, there’s a split in whether to treat this as a (b)(2) or (b)(3) class – at least as
to Title VII claims
Mass Torts
Castano v. American Tobacco
- Suit v. Big Tobacco was inappropriate as a class action suit
- This is like an immature tort; lot of individual Ps
o Hard to do the superiority analysis when this case has never been tried
before, don’t know the legal theories or evidence that will be advanced
- Variations in state law make it inappropriate
- Not a superior method of resolving dispute, due to manageability problems
Anchem Products, Inc. v. Windsor
- This was an asbestos case
- Settlement class: class action brought for the purpose of reaching a settlement,
resolving issues, precluding future claims
o For settlement classes, although you don’t have to worry about
manageability issues, still have to do the rest of 23(a) analysis to ensure
fairness
o Potential conflict between 1) those who already have symptoms & those
who have not yet manifested them (esp. b/c no provisions for inflation or
advanced medical knowledge), and 2) the class and the “inventory
plaintiffs” (those whose actions were consolidated in fed.d.ct.)
35
Questions:
1) Preference for dismissing under 12(b)(6) over 12(b)(1), for federal question cases:
why? Which is more likely to have preclusive effect? Which is more likely to
affect court’s ability to hear ancillary or pendant claims?
12(b)(6) is a judgment on the merits, will prevent them from bringing it elsewhere (like
bringing the federal question in state courts).
2) Did we skip Met Life v. Taylor? I have a brief, but no notes. That’s probably just
the day I skipped (MT).
3) Should I worry about the well-pleaded complaint & federal question issues that
the book hints at for declaratory relief, on p. 286?
4) For the “affirmative defense is waived if not timely pled” rule, how should I treat
a timely pleading? There’s language in Ingraham that suggests that an
affirmative defense may be raised for the 1st time @ trial.
5) The Steffan v. Cheney issue – does the holding that facts relevant to a grant of
relief aren’t relevant to a claim or defense for discovery, apply to any case? Or
just to review of an administrative decision? How far beyond the context of the
facts does this apply?
6) Under rule 26(c) on protective orders, does the requirement about the parties
trying to resolve the dispute mean the discovery dispute? Or the whole case?
7) For the chart of legal and equitable remedies, should we worry any about when $$
awards might have been equitable? Also, how are we to analyze whether a suit
brought today has any 1791 analogue, not knowing the writ system?
As a practical matter, just focus on remedy.
8) Does the Torcomian holding only apply to compulsory counterclaims? Or does it
apply to all counterclaims?
9) For grants of new trial, do we need to worry about grants “for reasons that were
reasons in actions at law” vs. in equity? Didn’t seem like we really did much with
that distinction in the rules.
That language just incorporates the sort of stuff we talked about, except that “against the
weight of the evidence” can’t really be a ground for a judge to grant a new trial when it
was a trial to the judge, because the judge was the trier of fact.
10) When are grants of new trial reviewable?
11) When do you look to the state law of preclusion to decide?
12) 13(a) compulsory counterclaims, the very last sentence, does that mean personal
jurisdiction over P’s claim or D’s claim
13) Do affirmative defenses really need to be complete defenses to be precluded?
14) Why is the Illinois Central v. Parks an “actually litigated and determined” issue
rather than an “essential to the judgment” issue?
36
The rule from Semtek – when a federal court is sitting in diversity, the claim-preclusive
effect of a judgment in that case should be determined by looking at what the claim
preclusive effect would have been in state court.
- Exception: where that’s (applying state claim preclusion law) incompatible with
federal interests
37
Review session:
Hess and Pennoyer are no longer representative of current law, don’t need to know the
details
Requirements for a lawsuit, for a court to hear a case & render an authoritative judgment:
Personal jurisdiction
- Constitutional dimension: International Shoe & subsequent cases; what are the
limits of due process on court’s ability to exercise jurisdiction over nonresident
D?
o Minimum contacts btw D and forum state such that exercise of jurisdiction
is consistent with fair play and justice
 After Burger King and Asahi, have to read those as 2 different
prongs – probably doesn’t matter in most cases
 List of factors is more important than “reasonableness,” they give
content to reasonableness
o Distinction between specific and general jurisdiction; general: D has such
substantial contacts w/ a state that it’s fair to make D answer, even if
litigation not related to the forum state
o Tag/transient jurisdiction – presence in the state may be enough to
exercise jurisdiction, even absent minimum contacts
- Statutory: long-arm statute: state law defines jurisdictional reach of state courts
o In order for the exercise to be valid, needs to fall w/in statutory authority
and also be constitutional
o Sometimes, statutory reach extends to full constitutional reach
- Rules dimension, in rule 4(k)(1)(a): if jurisdiction would exist in the state courts,
then for a federal court to establish jurisdiction, also has to serve D or receive a
waiver – federal court can exercise jurisdiction to the extent that a state court
could
o This means that the federal district court must follow the long-arm statute
of the state that it’s sitting in
Subject matter jurisdiction
- Usually only an issue for federal courts, although some state courts are of limited
jurisdiction
- More pertinent to this class: state courts having limited jurisdiction when there is
a class of case made exclusively federal by statute
- Constitution: Article III establishes the judicial power: cases arising under
constitution & laws (federal question) & btw citizens of different states (diversity)
- Statutory dimension: courts of appeals & district courts exercise subject matter
jurisdiction as granted them by congress in 1331 (federal question) and 1332
(diversity)
o 1331 and 1332 have been interpreted more narrowly than the
constitutional grant
 Mottley – Federal question: look at the face of a well-pleaded
complaint, even if there’s a federal issue that might come up as a
defense – but if there is a federal defense, it might make its way
through the state courts & be appealed to SC
38

1332 – has been interpreted to require complete diversity (no P has
same citizenship as any D, and vice versa); Scholars have said that
Article III might permit minimal diversity; also monetary limit
o In some cases, rule will be different if you’re in federal court based on
diversity or federal question (1367, for instance)
- Erie also comes up in diversity cases: should apply state substantive law (easy
case, deciding what tort standard to apply)
o Look to the law of the state in which the federal district court is sitting;
Quirk in Erie; accident in PA, but district court is in NY; look to NY law
but NY law says look to the state of the accident (PA)
o Early on, tendency to see everything as substantive rule – high water mark
is Guaranty Trust case, “outcome determinative” rule
o By Byrd, court is backing off: well, “outcome determinative” might be too
rigid b/c everything is potentially so; what we were trying to get at is
whether this rule is “bound up with” state created rights & obligations
such that we should respect these rules to respect state sovereignties; if
not, weigh state v. federal interest in following rule
 “Bound up with rights & obligations” deals with the legal
standards for people’s conduct outside of court, not how they
conduct themselves in court
 Burdens of proof are more “bound up” with rights and
o Hanna – court shifted analysis; if there’s an FRCP in the picture, the
analysis is different – if it’s consistent with the rules enabling act and
constitutional, we’ll follow the federal rules (Byrd still applies to conflicts
between state rules and federal rules, which are not FRsCP).
 Only deals with situations where a state law conflicts with a FRCP
– “consistent with the rules enabling act” doesn’t mean anything
other than this, that the Rule was properly enacted
 Hanna doesn’t apply outside those situations; apply Byrd
otherwise
Supplemental jurisdiction
- Applies to claims that there’s no other basis for hearing them in federal court
- Want to hear there b/c it’s closely related to another claim that’s in federal court
- Started in Gibbs, codified in 1367
- Constitutional bounds: if it’s w/in the same case, Congress could (and did)
exercise such jurisdiction
- A (MO) sues B (MO) on Title VII and Breach of K
o Jurisdiction over Breach of K is “pendant” jurisdiction
- A (MO) sues B and C (MO), Antitrust claim, B crossclaims C on some sort of
state law claim
o That was “ancillary” jurisdiction
- A (MO) sues B (MO) Title VII, wants to sue C (MO) for some state-law claim
o “Pendant party” jurisdiction
- 1367 covers all 3 types, all 3 are now called “supplemental” jurisdiction
o So long as claims are closely enough related to be part of same case or
controversy
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Venue (much less important)
- Solely statutory, no constitutional dimension
- Laid out in 1391; language closely tracks a lot of concerns about personal
jurisdiction
- Locates the case within the particular state
- Court can transfer or dismiss if venue is improper
- 1404 transfer is different than forum non conveniens; permits transfer w/in federal
system (may not be a problem that venue is wrong, there just may be a better
place); FNC is about kicking the case out altogether (Piper)
Removal and Remand
- Removal not a way to establish subject matter jurisdiction, doesn’t create
jurisdiction where it wouldn’t exist; matter of statutory right, if a case is brought
in state court & it’s one over which federal courts do have jurisdiction, D can
remove the case to federal court
o Can’t remove 1 year after, if removal is based on diversity
- Remand: case that’s removed goes from federal to state court; not a dismissal b/c
this doesn’t end the lawsuit; this would be a response to removal, consistent with
the idea that subject matter jurisdiction may be challenged at any time
- Caterpillar – case went all to trial, removal was improper at the beginning, but
there was diversity by the end, not going to make them redo the whole thing
Joinder
- Rule 18
- Rule 20
- Rule 13 – counterclaims and cross-claims
- Rule 14(a) – D impleading someone else – Watergate – must be 2ndary or
derivative liability
- Rule 19
- Rule 23 – class action, also (kind of) a form of joinder
- Always have to wonder about
o Compulsory counterclaim
o Rule 19
o Claim preclusion
o May be nothing about joinder or jurisdictional rules that say you have to
apply them, but then preclusive rules may apply
Rest of the course: about getting from claim to resolution
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