civ pro outline A+student

(In Personam Jurisdiction)
A court must have both STATUTORY and CONSTITUTIONAL authority to assert PJ over the defendant
o Due Process sets the outer boundaries; States need not grant their courts the full extent of Due
Process – they may give less
If personal jurisdiction is exercised beyond the constitutional limit, the judgment is invalid and is NOT
entitled to “full faith and credit”
The 5 Methods for Acquiring PJ Over a Defendant:
(1) The defendant (or agent) is served with process within the forum state;
(2) The defendant voluntarily appears in the action (thereby waiving his objection to the court’s lack of PJ
over him); this is a “general appearance”
(3) The defendant consents to a state’s exercise of PJ over him before the claim arises;
(4) The defendant is domiciled within the forum state; OR
(5) The defendant has minimum contacts with the forum state
o The defendant must have such minimum contacts with the forum that the exercise of jurisdiction
does not offend traditional notions of fair play and substantial justice - International Shoe
MINIMUM CONTACTS TEST (Due Process Standard)
Does the defendant have minimum contacts within the forum state? (Hanson/Worldwide)
Prong I-A
 Has the defendant purposefully availed (INTENT) himself of the privilege of conducting
activities within the forum state, and thus invoked the benefit and protection of its laws? (Has
he “reached out” to the forum state?) (Hanson)
 (1)Place product in the stream of commerce (2)with the awareness/expectation will be
purchased by consumers in the forum state.
(cant get to
Prong I-B (Bristol Meyers)
prong 1b if
 Are defendants’ acts and relationship with the forum state such that it is foreseeable that he
doesn’t pass
could be sued in a court there?
prong 1a)
 Did the cause of action “arise out of or relate to” the defendant’s contacts with the forum
state? (plaintiff’s connection to the forum state?)
o If yes  specific jurisdiction (international shoe/burger king)
o If no  Has the defendant been engaged in substantial “continuous and systematic”
activities within the forum state, such that it is like a second home to him?
 If yes  general jurisdiction (the defendant may be sued in this forum by
ANY plaintiff on ANY cause of action)
* You never get to PRONG II analysis UNLESS PRONG I is satisfied! *
(Prong I is the “constitutional touchstone” and the “necessary predicate” for Minimum Contacts Jurisdiction)
PRONG II Although the defendant has minimum contacts with the forum state, would maintenance of this
suit offend traditional notions of fair play and substantial justice?
Fairness factors to be considered:
 Burden on the defendant and his witness
 Interest of the forum state in litigating the claim
 Plaintiff’s interest in litigating in the forum state
 Interest in efficient resolution (what’s the most efficient place to try the case)
 Interests of the several states in furthering shared substantive social policies
The burden is on the defendant to show that the forum is so gravely difficult and inconvenient
that the defendant would be at a disadvantage in the litigation (Burger King)
Wyman v. Newhouse – You CANNOT acquire PJ over a nonresident by fraudulently luring him into the
state in order to serve him with process within the forum
Burnham v. Superior Court (Burnham went to California to visit children and got served) – Scalia 4:
personal service within the forum state is sufficient for obtaining PJ over a defendant; affirms Pennoyer’s
“historical pedigree;” Brennan 4: fairness should also be considered
Purposeful Availment
Burger King – FL had PJ over MI franchisees; defendants reached out and entered into contract with FL
corporation; sent fees to FL, agreed that FL law would govern disputes; Rudzewicz deliberately affiliated
himself with FL – it is reasonably foreseeable that litigation would occur in FL, etc
o It may be that you NEVER step foot in the forum state, but you STILL have minimum contacts
International Shoe – WA had PJ over a DE corporation with its principal place of business in MO:
o The corporation conducted “continuous and systematic” activities in Washington (had several
employees working there, solicited business there, etc): had the privilege of conducting activities
within the state, gained benefits of interstate business, had the benefit and protection of the state’s
McGee – The court decided that CA had PJ over TX insurance co. even though it had only ONE contact in
CA – its insurance policy with McGee’s son
o This ONE contact was enough to satisfy the “minimum contacts” test, as the defendant “reached
out” to CA and solicited business there
o After establishing that the defendant had minimum contacts with CA, the court assessed the
“fairness” of asserting personal jurisdiction over the defendant, and determined it was fair
Asahi (passed Prong I and failed Prong II) – indemnity action by Taiwanese manufacturer, against Japanese
submanufacturer, Asahi; 5 justices (Brennan approach + Stevens) found that Asahi’s contacts with CA were
sufficient, but the judges unanimously held that the exercise of jurisdiction over Asahi was unreasonable
(only in RARE CASES will inconvenience become constitutionally unreasonable):
o Severe burden on a defendant who has to litigate in a foreign judicial system
o CA has no interest in adjudicating the action – the case that concerned a CA citizen has been settled;
all that is left is an action between two foreign corporations
o Plaintiff has not shown that it is more convenient for it litigate in CA rather than in Taiwan/Japan
o It would be more efficient to litigate in Taiwan/Japan
o No shared interest in social policies
Brennan Approach: if you place a product into the stream of commerce and have awareness that the
product will reach the forum state and be purchased by consumers, you have purposefully availed
yourself (Worldwide); the possibility of a law suit cannot come as a surprise; a defendant who places goods
in the stream of commerce benefits economically from forum state and benefits from its regulatory laws
 Place product in SOC and had awareness and expectation.
 A knowingly participate of a deliberate chain of distribution of product and knew it would be
marketed in the forum state. They knew it would be SOLD.
O’Connor Approach: stream of commerce and awareness are insufficient to establish purposeful
availment; additional conduct by the defendant directed toward the forum state is required for PJ (p132).
Have to have expectation!
Stevens Approach: whether or not a corporation’s course of dealing amounts to purposeful availment
depends on the “volume, value, and the hazardous character of the components”
No Purposeful Availment
Hanson v. Denckla – Mrs. Donner started relationship with DE trust company when she lived in PA, and
continued this relationship after her move to FL; FL did not have PJ over the DE trustee because DE did
NOT purposefully avail itself of FL
o “The unilateral activity of a person who has a relationship with a nonresident defendant cannot
satisfy the requirement of contact with the forum state”
o It doesn’t matter if FL is the “center of gravity” or the most convenient location for litigation –
MUST have PJ over defendant
Worldwide – no PJ over regional distributor (in tri-state area) and NY retailer in OK (where accident
occurred); the defendants have no relation to OK: no activity, sales, privileges or benefits of OK law (there
was PJ over the car manufacturer and the importer because of stream of commerce)
o Foreseeability is relevant – Due Process requires that the defendant’s conduct and connection with
the forum state are such that he should reasonably anticipate being haled into court there
 It is NOT enough that it is foreseeable that a product may enter a state (by the unilateral act
of a third party: the Robinsons)
General Jurisdiction (narrow person home “domicile” or where they have PRESECNE to think it’s their
home. For example, where a place of business is incorporated.)
Bristol Myers 2017- “continuous and systematic” activities are required for general jurisdiction.
 Pay attention to Prong IB. A connection/ adequate link between the plaintiff lawsuit and the
forum state/ Affiliation (New change)
 If you lived in the forum; injected from in California – yes
 If not… like the non residents- then no
 Sotomayor dissents the non residents claims RELATE to the same case (drugs) The majority forgot
about the other part of Prong 1B (REALTE TO) It is not disputed the suit did no arise out of the
plaintiff purposeful acts in the forum state.
 Alito… two things are clear. Not just having a contact with someone from another state, you need
some connection
 Specific jurisdiction case.
Daimler v. Bauman
 Must be headquartered.
 Mercedes Benz
 Distribute cars to every state so if grant general jurisdiction based off that can be sued anywhere
 Goodyear case
 Only a limited set of affiliations with a forum will render a defendant amenable to allpurpose jurisdiction there. For an individual, the paradigm forum for the exercise of general
jurisdiction if the individuals domicile; for a corporation, it is an equivalent place, one in
which the corporation is fairly regarded as at home.
Helicopteros (GENERAL jurisdiction case – only because the parties conceded that the claim did not arise
out of or relate to Helicol’s contacts with TX) – purchases and related trips alone (even if occurring at
regular intervals) are not enough to amount to the “continuous and systematic” activities that are required
for general jurisdiction
In Rem Jurisdiction (over the PROPERTY only!!) – the court has power to adjudicate the rights of all persons
claiming ownership to a particular item of property located within the state (foreclosures are classic in rem
Quasi In Rem Jurisdiction – way to obtain jurisdiction over a person who has property within the forum state,
but is absent from the state. (using as the anchor to get jurisdiction, unrelated to lawsuit)
 Pennoyer v. Neff – property must be attached to the person at the inception of the suit
 Shaffer v. Heitner – when the dispute is unrelated to the ownership of the property, quasi in rem jurisdiction
cannot be based solely on the presence of the property in the forum state; there must be minimum contacts
between the defendant and the forum
Challenging the Exercise of Personal Jurisdiction
Direct Attack – After a defendant files a “special appearance” in order to contest the court’s PJ over him,
he may attack a judgment rendered against him VERTICALLY (directly appeal to a higher court in that
jurisdiction) – he CANNOT collaterally attack any issue – second court is bound by Full Faith & Credit
o Rule 12(h)(1) – defense of PJ is waived if not properly asserted by the defendant at the inception of
the case (either in a pre-answer motion or in the defendant’s answer to the plaintiff’s complaint)
After the defendant enters a “special appearance” asserting lack of PJ, he may either:
o (1) Make an interlocutory appeal and immediately appeal the PJ ruling by way of a direct attack
(before there is any adjudication on the merits); OR
o (2) If an interlocutory appeal is denied or not allowed, the defendant will proceed to defend the case
on the merits and then appeal after the case has been fully litigated by the trial court
Collateral Attack – If a defendant makes NO APPEARANCE in the first action, he may later contest the
original court’s PJ over him in another court that does NOT have appellate jurisdiction over the first court
After the defendant makes no appearance, the first court will enter a default judgment against him
o Defendant may then collaterally attack the first court’s PJ, but cannot collaterally attack judgment on
the merits if the second court also finds that there was PJ in the first action
 Milliken v. Meyer – if a defendant collaterally attacks to challenge PJ, the second court
CANNOT review the merits of the case (it is precluded from doing so by the Full Faith and
Credit clause) – it may only address issues of jurisdiction
If the second court rejects the defendant’s PJ challenge, the defendant’s ONLY remedy is to return to the
first court and ask that the default judgment against him be vacated and that the case be re-opened so that
he may now defend the plaintiff’s substantive claim against him
o The defendant must show good cause for defaulting and not appearing to defend the first time
around, and he must have a valid defense to the plaintiff’s claim
 It is HIGHLY unlikely that the first court will find that the defendant had “good cause”
Contract Clauses that Affect Personal Jurisdiction
“Choice of Law” Clauses (as in Burger King) – the agreement shall be governed and construed under the
laws of State X
o This does NOT dictate where suit shall be brought or whether the parties consent to PJ (in the
jurisdiction of the chosen substantive law)
The substantive law of the chosen jurisdiction will govern the substantive rights and obligations of the
parties in the event of dispute/litigation
So long as the “choice of law” clause is valid as a matter of contract law, the clause will generally be
honored by the forum state in which the suit is filed: private parties to a contract are free to define the terms
of their contract and their respective rights/obligations under it (there is a “public policy” exception)
In the absence of a “choice of law” clause, the court in which the suit is ultimately filed must turn to its
“conflict of laws” rules in order to determine which substantive law should govern
“Consent to Jurisdiction” Clauses = PJ
Both parties to the contract consent to be sued in a particular jurisdiction
o Any defense to lack of PJ is WAIVED! (Consent = 2nd method of acquiring PJ)
A “consent to jurisdiction” clause does NOT require that suit be brought in the consented-to forum, nor does
it mean that the consented-to jurisdiction’s substantive law must be applied in the case
This clause ONLY means that Personal Jurisdiction has been consented to in that forum
“Choice of Forum”/“Forum Selection” Clauses
Parties agree that suit on the contract may be brought only in the courts of the chosen forum
o (1) They LIMIT the forum to a particular jurisdiction, AND
o (2) They acquire PJ over both parties in the selected forum (through their consent)
A jurisdiction could refuse to honor a “choice of forum” clause and hold in unenforceable if unreasonable
or against public policy; it could also decline to exercise jurisdiction if it determines the litigation would be
burdensome or otherwise improper
o Carnival Cruise – S.C. upheld a “forum-selection clause” that was displayed on a cruise ticket and
provided that all suits must be brought in FL, even though ticket was purchased in WA, ship
departed from and returned to CA, and traveled to New Mexico; Ps had the option of rejecting the
The Due Process Requirements of Notice
1. Personal jurisdiction
2. Notice and opportunity to be heard
The most fundamental requirement of Due Process is that the defendant be provided with adequate notice of
the commencement of the action and the opportunity to be heard
Notice MUST:
(Constitutional Requirement for Notice, as provided by Mullane)
(1) be reasonably calculated to alert interested parties of the pendency of the action; AND
(2) be of a quality that one desirous of ACTUALLY communicating with the party would adopt
Jones v. Flowers – If you become aware that the defendant did not receive notice, you may have to
take additional reasonable steps; mailed notice of tax sale was returned and unclaimed; failure to follow
up was unreasonable – publishing last notice in a newspaper was not constitutionally adequate (because it
was possible/practicable to give him more adequate notice)
If a reasonable notice does not reach the defendant, but the plaintiff does not know that the notice has
not reached the defendant, notice will still be adequate (if you meet Rule 4, you will probably meet the
constitutional requirement)
Service of Process
Process serves 2 functions:
(1) Notifies the defendant, AND
(2) Formally asserts PJ over him
Rule 4(c)(1) – PROCESS = copy of P’s complaint and a summons to appear in the action
“Personal Service”/”In Hand Service” – most statutes now provide that process may be left at the
defendant’s home with someone of suitable age and discretion (if not “personal,” then “substituted” service)
Type of Defendant/Service
Method of Service
Individuals within a judicial district
(1) following state law for serving a summons in an action
of the U.S.
brought in courts of general jurisdiction in the state where the
district court is located or where service is made (where we usually
get service by mail); or
(2)(A) delivering a copy of the summons and the complaint to the
individual personally; or
(2)(B) leaving a copy of the summons and the complaint at the
individual’s dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(2)(C) delivering a copy of the summons and the complaint to an
agent authorized by appointment or by law to receive service of
Must be served by following state law for serving a summons or
Minors and Incompetent Persons
within a judicial district of the U.S.
like process on such a defendant in an action brought in the courts of
general jurisdiction of the state where service is made
A domestic or foreign corporation
(1) in the manner prescribed by Rule 4(e)(1) for serving an
or a partnership or other
individual; or
unincorporated association within a
(2) by delivering a copy of the summons and the complaint to an
judicial district of the U.S.
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process
(someone with sufficient business responsibilities) and, if the agent is
one authorized by statute to receive service and the statute so requires,
by also mailing a copy of each to the defendant
Even if service achieves ACTUAL notice, many courts hold, upon proper objection, that service of process
is insufficient and PJ has not been properly acquired over the defendant if service is made in a way or on a
person NOT authorized by the statute or rule (“insufficient service of process” objection)
Statutes/rules prescribed HOW the process must be prepared and WHAT information the summons must
contain (if process is in deficient form  “insufficient process” objection)
Federal courts have the discretion to “quash” service of process when it is insufficient, rather than dismiss
the action
Service must be made on the defendant within 120 days after complaint is filed
o Rule 4(m) – if service is not made within this time, the court must dismiss the action (without
prejudice) or direct that service be effected within a specified time (unless the plaintiff shows good
cause for failure to serve)
Service of process can be waived
o Rule 4(d) – plaintiff may notify a defendant in writing by mail and request that the defendant waives
the service of summons (cost efficient); the defendant must be given reasonable time to return the
waiver (at least 30 days)
If the defendant does return the waiver, his answer is due 60 days from the date on which request for waiver
was sent; If he does NOT return form, defendant must be properly served (he may have to pay cost of
Waiving service of summons DOES NOT also waive any objection to PJ or venue (but would waive
objections to insufficient process or service of process)
Process & PJ in FEDERAL Courts
Fifth Amendment is the Due Process clause of the federal courts
The federal government can, like the states, enact long-arm statutes and rules in order to exercise PJ over
In the ABSENCE of an applicable FEDERAL long-arm statute or rule authorizing PJ, the federal courts
may use the long-arm statutes of the state in which they are located (Rule 4(k)(1)(A))
Republic of Panama v. Luxembourg – when a federal statute provides for nationwide service of process, it
becomes the statutory basis for PJ  constitutional limits of due process derive from the Fifth Amendment
– a court must examine a defendant’s aggregate contacts with the nation as a WHOLE rather than his
contacts with the forum state when conducting a Fifth Amendment analysis
Rule 4(k)(2) – extends the long-arm jurisdiction of the federal courts to a SMALL category of cases in
which jurisdiction is not authorized by any federal or state statute;
In order for Rule 4(k)(2) to apply:
(i) the plaintiff’s claim must be based on FEDERAL law;
(ii) jurisdiction cannot be asserted over the defendant in
ANY STATE COURT of general jurisdiction; AND
(iii) the exercise of jurisdiction by the federal court must be
consistent with Fifth Amendment due process
Plaintiff’s choice of forum is limited by 3 things: PJ, SMJ, and Venue
For the purposes of venue, judicial districts are considered as if they are different states
Venue is determined at the OUTSET of the case (venue may be disturbed if P tries to join additional
defendants, or the court requires certain parties to be joined, and their joinder makes venue improper; in that
case, they will not be permitted to join unless they waive their objections)
Parties can WAIVE venue requirements, but venue is NOT constitutionally required (it is purely a statutory
o Neither the forum state nor the U.S. Constitution would render a judgment void and subject to
collateral attack for improper venue
Is the judgment still
valid if the court
does not have
Subject-Matter Jurisdiction
Personal Jurisdiction
If the defendant makes NO
appearance, can he make a
collateral attack?
Can the defendant
A transitory action can be adjudicated ANYWHERE
A local action involves land and can be adjudicated only where the land is located
Venue in Federal Courts
Venue statutes are framed in terms of federal judicial districts, not states
§1391(a) – deals with venue in actions where SMJ is based SOLELY on diversity
§1391(b) – deals with venue in all other civil actions (SMJ based one federal question)
Actions Founded Solely on
Federal Question & Other NonDiversity – Venue is proper in a
Diversity Actions – Venue is proper
judicial district
in a judicial district
defendant resides, if all
“Residency” Based Venue*
defendants reside in the same state,
defendants reside in the same state,
§1391(a)(1) or
§1391(b)(1) or
in which a substantial part of the
in which a substantial part of the
“Events” Based Venue
(this is similar to specific
events or omissions giving rise to
events or omissions giving rise to the
jurisdiction – may overlap)
the claim occurred, §1391(a)(2) or
claim occurred, §1391(b)(2) or
where a substantial part of property
where a substantial part of property
“Property” Based Venue
that is the subject of the action is
that is the subject of the action is
situated, §1391(a)(2) or
situated, §1391(b)(2) or
in which ANY defendant is subject
in which ANY defendant may be
“Fallback” Provisions
found, if there is no district in which
(if one of the above does
to personal jurisdiction at the time
the action is commenced, if there is the action may otherwise be brought,
not apply)
no district in which the action may
otherwise be brought, §1391(a)(3)
*If all defendants reside in different districts of the SAME state, there is venue where ANY of them resides
Venue Based on Substantial Events Within the District (§1391(a)(2))
Pfeiffer v. Insty Prints – the court made a §1406(a) transfer to another district in which “a substantial part
of the activities giving rise to the claim occurred”
Bates v. C&S – the court found that venue was proper in W.D.N.Y., even though the defendant creditor was
from PA and conducted no business in NY; C&S sent letter to Bates’ old PA address, and letter was
forwarded to Bates in NY  reception of a collection notice is a substantial part of the activities giving
rise to the claim (it does not matter that C&S did not deliberately send the letter to NY)
Residence of Corporations for *Venue Purposes*
§1391(c) – a corporate defendant will be considered a “resident” of any judicial district in which it is subject
to PJ at the time the action is commenced
o If there is no district in which the corporate would be subject to PJ, the corporation can be sued in
the district in which it has the most significant contacts (same test for unincorporated associations)
An individual “resides” ONLY where he is domiciled (same as your citizenship for diversity of citizenship
purposes); a corporation “resides” in ALL districts where it is subject to personal jurisdiction at the time
the case is filed
Zinn v. Gichner – suit was brought against corp in the E.Dist. of PA after an accident occurred at their
manufacturing plant in the M.Dist. of PA; because a “substantial part of the events giving rise to the claim”
occurred in the M.D., the court had to conduct an analysis of whether the E.D. had general PJ over the corp
so as to determine if it could be considered a “resident” of the M.D.; It only conducted minimal business in
the district, and the court found that this did not constitute the “continuous and systematic” activity
necessary for general PJ  corp. not a resident of E.D., §1406(a) transfer to M.D.
If venue is improper, D
can file motion to
dismiss under
Rule 12(b)(3)
Objection to improper venue
is waived if not timely
asserted at the inception of
the action - Rule 12(h)(1)
§1406(a) - If objection is upheld, the
District Court may dismiss the action,
or transfer it to a proper venue court "if
it be in the interest of justice;" the court
has no option to retain the case if a
timely objection was made
§1406(b) - If venue is improper, but there
was not objection, the subsequent
judgment of the court is valid;
jurisdiction not affected
Even if venue is PROPER, litigants may
try to have the case heard in a more
convenient forum
Is there a more convenient forum within
the Federal Court System?
File motion to transfer
(§1404(a)) to a more convenient
court located within the system
File motion to dismiss for
"Forum Non Conveniens"
Motion to Transfer Venue is
DISCRETIONARY with the court
1. Venue is proper in the transferor court
2. Venue is proper in the transferee court
3. Transferee court is another Federal
District Court
4. PJ exists over all defendants in the
transferee court
5. The party seeking transfer has the burden
of showing that the case should be
transferred in the interest of justice and
convenience of the parties and witnesses
6. There is a presumption in favor of the
plaintiff's choice of venue (venue was
proper - this is a plaintiff who did
NOTHING wrong)
Motion to Dismiss for Forum Non Conveniens is
DISCRETIONARY with the court
1. Venue is proper in transferor court
2. Alternative forum court is NOT within the Federal
Court System (transfer is impossible)
3. PJ exists over all defendants in the alternative
forum (Ds can agree to waive)
4. Statute of Limitations will not bar re-filing (Ds
can agree to waive)
5. Adequate relief is available in the alternative
forum; Change in law is a factor, but is not
conclusive (unless the law is so clearly inadequate or
unsatisfactory that it is no remedy at all)
6. Presumption in favor P's choise of venue (applies
with greater force when P is from the chosen forum
7. The burden is on the Ds to prove Private and
Public Interests outweight P's choice of forum and
that trial in the forum state would be burdensome
Transfers of Venue
§1404(a) – for the convenience of the parties and the witnesses, a district court (in the interest of justice)
may transfer a civil action to any other district where it might have been brought
o The burden is on the party seeking transfer to demonstrate that transfer is justified
A defendant objecting to improper venue need not demonstrate inconvenience and any other factor in order
to justify the transfer; he must only show that venue is improper
§ 1406 - A defendant objecting to improper venue need only show that venue is wrong initially  judge can
subsequently transfer to court that does have venue or dismiss case
o An objection for improper venue must be timely made or the objection is waived under Rule
12(h)(1), eliminating the option to seek transfer under §1406(a)
§1404(a) (not as strict)
Because the plaintiff’s chosen venue is proper,
the court has no discretion to dismiss the action
and must keep the case unless a transfer is
A motion to transfer an action with proper
venue may be made at any time, although
delay would certainly be a factor in the court’s
Because the plaintiff’s chosen venue is
improper, the court has no discretion to keep
the action and must dismiss the case unless a
transfer is ordered (the transferring court does
not need to have PJ over the defendant in order
to transfer the case to a proper venue)
An objection for improper venue must be
timely made at the inception of the case or the
objection is waived under Rule 12(h)(1),
eliminating the option to seek transfer under
*Under both statutes, the transferee must be a proper venue AND must have PJ over the defendant*
(Independent of waiver by the defendant)
The Doctrine of Forum Non Conveniens – Doctrine of DISMISSAL
 Forum non conveniens is applied only when there is a court in another judicial system that is substantially
more convenient than the court where the P commenced the action (“oppressiveness” to D outweighs
convenience to P) – TRANSFER IS IMPOSSIBLE!
o The burden on the D is much greater than that to be satisfied when a defendant is moving to transfer
a case within the same judicial system
 If the motion for forum non conveniens is upheld, the court must dismiss the action, forcing the P to refile
in the more convenient forum
 State courts – available when the more convenient forum is another state or a foreign country
 Federal courts – available only when the more convenient forum is a court in a foreign nation
When Determining Whether to Dismiss for Forum Non Conveniens…
Step#1: Identify a proper, alternative forum
Step#2: Weigh the public and private interests to determine the most convenient forum
Step#3: Defendant has the burden (because the plaintiff did nothing wrong – venue is proper!)
Piper Aircraft v. Reyno – a change in substantive law should not be given conclusive effect or even
substantial weight in a forum non conveniens analysis; P may not defeat a motion to dismiss for forum non
conveniens merely by showing that the substantive law that would be applied in the alternative forum is less
favorable to her (when the parties in interest are foreign, P’s choice of forum less significance)
o If the remedy provided by the alternative forum is so clearly inadequate that it is no remedy at all,
the unfavorable change in law may be given substantial weight
Must look to the PRIVATE and PUBLIC interests in order to determine whether to dismiss for forum
non conveniens:
o Private Interests: ease of access to sources of proof; availability of compulsory process for
attendance of unwilling parties; cost of obtaining the attendance of willing witnesses; whether other
court is really the “center of gravity;” any other factors that make trial easy, quick, and inexpensive
o Public Interests: administrative difficulties due to court congestion, the local interest of having local
controversies decided at home (in Piper, Scotland was really the place in interest); the interest of
having the forum litigate a case that will be governed by its laws and the avoidance of conflict of
laws or the application of foreign law (in Piper, PA court would have had to apply PA law to one
defendant, and Scottish law to another – good reason for dismissing)
Subject-matter jurisdiction CANNOT BE WAIVED; if neither party raises a SMJ objection, the court is
obligated to raise the objection on its own “sua sponte”
The U.S. federal courts are courts of LIMITED jurisdiction
o Article III, §2 gives federal judicial power over:
o (1) All cases, in Law and Equity, arising under this Constitution, the Laws of the U.S., and Treaties
made, or which shall be made, under their Authority
o (2) All cases affecting Ambassadors, other public Ministers and Counsels
o (3) All cases of admiralty and maritime jurisdiction
o (4) Controversies to which the U.S. shall be a party
o (5) Controversies between 2 or more states
o (6) Controversies between a state and citizens of another state
o (7) Controversies between citizens of different states
o (8) Controversies between citizens of the same state claiming lands under grants of different states
o (9) Controversies between a state, or the citizens thereof, and foreign states, citizens or subjects
 These powers are brought to life through statutes enacted by Congress
The case “arises under” federal law
Federal Question (§1331)
Diversity of Citizenship (§1332) The case is between citizens of DIFFERENT states
There must be COMPLETE DIVERSITY – EVERY plaintiff must be
diverse from EVERY defendant
Federal Question “Arising Under” Jurisdiction
Citizenship of the parties is IRRELEVANT
There is NO amount in controversy requirement
Federal Question Jurisdiction
Two steps
1. Constitutional authority (does it pass the Osborne test)
o Come from Article 3 Section 2.
o Comes out of Clause 1
o Only has to meet the Osborne Test requires federal law Ingredient in the case
o “arising under”  clause 1
2. Statutory authority
o Comes from 1331
o Extends to all cases arising under, but there are restrictions
o Plaintiff’s claim (Motley) in the first instance
o Within this 2nd step two types of cases that can meet 1331
o Category 1Federal Question Cases
Federal law standing alone creates my cause of action
*there can be federal laws that impact you, but doesn’t mean have category 1
o Category 2  Federal Question Cases (Grable)
Where State law creates the plaintiffs cause of action but federal law is an
essential element of the plaintiff state law claim
NOT that its relevant, or
Does it meet the WPK rule in the first instance
Has four factors to meet in a category two case
1. Does the federal law necessarily raise in the first instance
2. Is it actually disputed (ALWAYS going to be disputed -Merrel Dow, Grable-D argues notice was
3. Is it substantial (it is not the importance of the federal law in the abstract…IT IS, is it so
SUBSTANTIAL has to be moved to Federal Court) *MERREL DOW DID NOT PASS, GRABLE
4. The federal forum can hear the case without disrupting the balance between federal and state
judicial responsibilities.
Gun (patent infringement/ malpractice) and Merrell (case about product liability, failed substantial federal
interest) did not pass
Smith and Grable (tax) passed; would affect the national government in some way, the solitude and expertise
1. Constitutional
DIVERSITY: is there Constitutional Authority. article 3 section 2 clause 7 controversies between 2
citizens of different states …don’t give to full constitutional limit
 Is there constitutional authority article 3 section 2 clause 7 “Tashire” minimal diversity
(one person different from another person) ….don’t give to full constitutional limit
2. Statutory
DIVERSITY: is there Statutory Authority for diversity for 1332…Strawbridge v Curtis is the analog
…complete diversity; every plaintiff must be completely diverse from every defendant
*family matters stay in state courts
*counterclaims need to meet amount in controversy
Two Types of Cases that Satisfy the
“Arising Under” Requirement of §1331 (Statutory in Federal Question Jurisdiction)
Federal law CREATES the plaintiff’s claim for relief (expressly or impliedly)
Category 1
STATE law creates the plaintiff’s claim for relief, BUT federal law is an essential element
Category 2
of the state law claim
*A state law claim could give rise to FQ SMJ so long as it appears from the complaint that
the right to relief depends upon the construction or application of federal law
 Constitution is MUCH broader than the statute: Federal Question need only form an ingredient of any part
of the case under Article III §2, Clause 1 (considers what plaintiff AND defendant assert) – Osborn test
 States can adjudicate claims based on federal questions because of the SUMPREMACY CLAUSE!
 The doctrine of “arising under” is indicative of the notion that a fed court ought to be able to hear claims
recognized under state law that turn on substantial questions of federal law, and justify resort to the
“experience, solicitude, and hope of uniformity that a federal forum offers of federal issues” (Grable)
 In order to meet the requirements for Federal Question SMJ, the plaintiff’s claim must pass the
“Well-Pleaded Complaint” Rule (statutory):
o Federal law must be an ESSENTIAL element of the plaintiff’s claim (this is ALL the court looks
o Jurisdiction is barred if the federal issue arises solely as a defense
o The plaintiff may not properly raise an issue of federal law in his complaint solely in
anticipation of or in reply to a defense of claim of the defendant
 Any complaint that does not meet the requirements of the “well-pleaded complaint” rule MUST be litigated
in STATE court
 Mottley – The Mottley’s claim for relief was based on breach of contract, because the RR refused to honor
their life time passes; NO DIVERSITY (both parties from KY); In their complaint, Mottleys included why
the RR’s possible defense that they could not honor the passes due to an Act of Congress would be in
violation of 5th Amendment Due Process
Although it was likely that a federal question would come up during litigation, this was NOT
ENOUGH to qualify for FQ SMJ because the Mottleys’ claim in the first instance was based on
breach of contract (created by state contract law; not related to federal law)
 It is not enough that the plaintiff alleges some anticipated defense to his cause of action
and asserts that the defense is invalidated by some provision of the U.S. Constitution
When trying to determine whether the plaintiff’s claim passes the “well-pleaded complaint” rule, ask:
o Is the plaintiff ENFORCING A RIGHT under the federal law?
Category 2 of §1331
Grable: Grable filed state law claim against Darue, who was given deed to land after IRS seized Grable’s
land because of federal tax delinquency; In order to show that it still had superior title to the property,
Grable had to show that the IRS did not properly serve it with process (this was essential to its claim); great
federal interest
Gunn v. Minton- A state court’s resolution of a hypothetical question of patent law is not substantial
enough to mandate federal review.
 Facts: Minton (plaintiff) brought a malpractice action against Gunn (defendant), an attorney. Gunn had
represented Minton in a federal patent infringement action. Minton argued in his malpractice suit that his
infringement claim had failed because Gunn failed to raise the “experimental use” exception available under
federal patent law.
 Pursuant to 28 U.S.C. § 1338(a), federal courts have exclusive jurisdiction over cases that arise under
any act of Congress relating to patents. Most cases that arise under federal law involve those where the
cause of action is created by an act of Congress.
 However, cases that originate in state court might also arise under federal law if:
 (1) the case necessarily deals with a federal issue;
o Minton’s malpractice action necessarily deals with a federal patent question.
 (2) the issue is actually disputed;
o Whether Minton would have won the case but did not for Gunn’s failure to raise an experimental-use
 (3) the issue is substantial; and
o This case is not substantial to the federal system as a whole because it has no real-world consequences.
o The state court analysis of the federal patent issue is entirely hypothetical, in that it asks how a case would
have turned out in federal court.
 (4) the federal forum can hear the case without disrupting the balance between federal and state
judicial responsibilities.
o States have a right to maintain standards in the legal profession through malpractice cases, and there is no
indication Congress intended to deprive state courts of such cases solely because a hypothetical patent case
is at issue.
o If such decisions have any preclusive effect at all, it applies only to the specific parties and patents at
issue in that particular case.
4 part test to determine whether there is FQ SMJ over a state law claim:
(1) issue of federal law must be ESSENTIAL to the plaintiff’s state law claim; MUST PASS THE
(2) the federal law issue must actually be in dispute
(3) substantial federal interest in determining the issue – is this an issue that requires the “experience,
solicitude and uniformity” that a federal forum offers?
(4) if this claim were heard in federal court, would it open the flood gates and bring actions in federal
court that can be dealt with at the state level?
Even if P fails to succeed on its substantive claim and loses the case of the merits, the court is NOT
divested of jurisdiction (the court does not need to dismiss the action for lack of SMJ)
Diversity Jurisdiction
Requirements for Diversity of Citizenship:
(1) The case must be between citizens of different states (there must be complete diversity)
(2) The amount in controversy must EXCEED $75,000 (cannot equal that amount)
Jurisdiction in all diversity cases is concurrent with state courts, and such actions do not have to be filed in
federal court
This is ALWAYS a STATE law claim!!!!!
Parties need only be diverse at the time the action is commenced
Subject Matter Jurisdiction Questions:
1. Federal Question…Osborne  ingredient
DIVERSITY: is there Constitutional Authority. article 3 section 2 clause 7 controversies between citizens
of different states …don’t give to full constitutional limit
Is there constitutional authority article 3 section 2 clause 7 “Tashire” minimal diversity (one person
different from another person) ….don’t give to full constitutional limit
2. Federal Question…. Is there statutory authority…FQ: Gunn Motley…Grable
DIVERSITY: is there Statutory Authority for diversity for 1332…Strawbridge v Curtis is the analog
…complete diversity; every plaintiff must be completely diverse from every defendant
Individual – must be a citizen of the U.S., must be legally domiciled in that state (you can only have ONE
domicile!) (14th amendment)
o You can change domicile only if:
o (1) you are physically present in the new state, AND
o (2) you have the intent to make the new state your home (in the present)
Walls v. Ahmed – Bastian was en route to FL (final move) from NJ (previous domicile) when she was killed
in a car accident; Even though she had not reached FL, she was nevertheless considered to be a FL citizen at
the time of death because there were clear indications that she intended FL to be her home (built house,
enrolled son in FL school, phone, employment, etc.) and had physical presence (had been there several
times and had abandoned NJ home for good)
Corporation (§1332(c)(1) – a corporation could potentially be a citizen of 2 states
o A corporation is a citizen of:
o (1) The state in which it is INCORPORATED
o (2) The state in which it has its PRINCIPAL PLACE OF BUSINESS (only one PPB)
 To determine PPB, look at the corporation’s “total activities”:
 1 – if the bulk of activity takes place in one state, that state is its PPB
An Unincorporated Business is a citizen in where its general members are citizens page 280
Hertz Corp. v. Friend: creates nerve center test. Says PPB is where the nerve center is
Unincorporated organizations require you to consider the citizenship of all its members  makes it difficult
to establish diversity jurisdiction
 2 – if its activities are spread all over, its HQ is its PPB (“nerve center”)
Amount in Controversy
The requirement is not that the plaintiff ACTUALLY be awarded an amount in excess of $75,000, but
rather that such an amount be IN CONTROVERSY
o It must appear to a legal certainty that the plaintiff’s claim is really for less than that amount to
justify dismissal (St. Paul Mercury Indemnity Co. v. Red Cab Co.)
Plaintiff may join as many claims as he has against the defendant in one action (Rule 18(a)) regardless of
whether or not they are factually related – P CAN AGGREGATE CLAIMS AGAINST D TO MEET
Common and Undivided Interest
The ONLY EXCEPTION permitting aggregation for claims by or against multiple parties under the
traditional rule existed when the claims derived from a “common undivided interest and a single title
or right was involved”
The test is not satisfied simply because the claims may be factually or legally related. Rather, the test
requires a careful analysis in each case under the applicable substantive law to determine if the claims
are truly “common and undivided” and involve a “single title or right.”
These claims are unusual—have to prove that the claim needs all plaintiffs, and that plaintiffs can’t
sue individually
Example: If wife and husband both own a house and suing over house for 100,000, that’s a joint
common undivided claim….IT IS NOT if the husband and wife get hurt in a car accident and the
husband leg is broke and sues for 100,000 but the wife arm broke and she sues for 30,000)
In the ABSENCE of a “common and undivided interest” possessed by all Ps, multiple Ps CANNOT
aggregate their claims (even if factually related) against a defendant– each must meet the amount in
controversy requirement
o Same applies for a single P against multiple Ds
If multiple defendants could be jointly liable to the plaintiff (each defendant could be liable to the plaintiff
for the entire amount), the plaintiff need not meet the amount in controversy requirement against each
If P’s claim does NOT exceed $75K, but the defendant’s compulsory counterclaim meets the jurisdictional
amount, courts are divided on whether this meets the requirement
Alienage Jurisdiction
 Diversity authorizes federal SMJ between citizens of different states and a FOREIGN state/citizens
 “Alienage Jurisdiction” requires that the amount in controversy requirement of $75K is met
Alienage Jurisdiction is PROPER when:
§1332(a)(2)  Citizen(s) of U.S. states v. Subject(s) of foreign states
 All state citizens and all foreign citizens must be on SEPARATE sides of the litigation
 Can be NY + NJ v. Canada + England
§1332(a)(3)  US citizen(s) (+ Foreign citizen(s)) v. US citizen(s) + (Foreign citizen(s))
Before foreign citizens are joined, there MUST be a valid diversity action between the
U.S. citizens
Foreign state v. U.S. citizens (of a state or different states)
An alien admitted to the U.S. for permanent residence shall be deemed a citizen of the state in which the
alien is domiciled
Supplemental Jurisdiction
 §1367(a) – Supplemental jurisdiction extends to any claims asserted by any party that are “so related” to
another claim within the original jurisdiction of the district courts (valid, “freestanding” anchor claim) as
to form part of the same case or controversy – should be interpreted broadly for judicial efficiency!!!
STEP 1 The requirements of §1367(a) are met if:
(1) There is a “freestanding” anchor claim that gives a federal court SMJ
(2) There is a jurisdictionally insufficient claim
(3) The claims arise out of the same case or controversy (FULL constitutional limit)
*Gibbs – the claims must derive from a COMMON NUCLEUS OF OPERATIVE FACT
If the claim meets the requirements of §1367(a) and the anchor claim is based on FEDERAL
QUESTION, then skip to Step 3
*§1367(b) applies ONLY to cases in which the anchor claim is based solely on DIVERSITY*
STEP 2 §1367(b) prevents the assertion of a supplemental claim otherwise permitted by §1367(a) if:
(1) The supplemental claim is being asserted by a PLAINTIFF against a party joined under Rules
14, 19, 20, or 24
(2) The supplemental claim is being asserted by a PLAINTIFF who was joined under Rule 19
(3) The supplemental claim is being asserted by a PLAINTIFF who intervened under Rule 24
If the claim survives both §1367(a) and §1367(b), then look to §1367(c)
STEP 3 Under §1367(c), a court may use its discretion and decline to exercise SJ over the claim if:
(1) The claim raises a novel or complex issue of STATE law
(2) The claim substantially predominates over the anchor claim(s)
(3) The district court has dismissed all anchor claims
(4) Exceptional circumstances provide other compelling reasons for declining supplemental
If no discretionary factor exist, supplemental jurisdiction will be exercised!
United Mine Workers v. Gibbs discretionary factors:
Judicial economy
Fairness to litigants
Jury confusion
Which claims predominate
In ALL federal actions, there is FULL supplemental jurisdiction over claims asserted by DEFENDANTS
Exxon Mobile – Where other elements of jurisdiction are present and at least one named plaintiff in the
action satisfies the amount-in-controversy requirement, §1367 DOES authorize supplemental jurisdiction
over the claims of other plaintiffs in the same case or controversy, even if those claims are for LESS than
the jurisdictional amount (Nothing against supplemental jurisdiction over claims by Rule 20 and Rule 23
plaintiffs – the gaps!)
In Federal Question cases, there is ALWAYS supplemental jurisdiction for ALL parties so long as the
claims arise out of the same case or controversy
Removal Jurisdiction
Allows the defendant to TRUMP the plaintiff’s choice of a state court forum and REMOVE the action to a
federal district court, so long as the plaintiff’s action could have been commenced there
The state court does not remove the case; federal courts ONLY have the power to remove
o Removal only applies VERTICALLY; if a case is improperly removed, the federal court will
“remand” it to the state court
§1441(a) authorizes removal; a case can only be removed to the federal court located in the SAME
jurisdiction as the state court in which the case is pending
§1441(b) – a diversity case CANNOT be removed if any defendant is a citizen of the state in which the
action is brought (even if there is complete diversity!); a federal question case is removable regardless
o Diversity must exist at the time the action is commenced in state court AND at the time removal is
o If a case becomes removable on the basis of diversity AFTER the action is commenced, there is a
ONE YEAR time limitation on removal (if a nondiverse party is eliminated by order of the court, the
action does not become removable)
For removal to be proper, ALL DEFENDANTS MUST AGREE to remove the action (unanimity
A plaintiff does NOT convert to a “defendant” for purposes of removal if the defendant files a counterclaim
against him
o Neither the defendant NOR the plaintiff may remove the case based on the defendant’s
§1441(c) – if case involves defendants with separate and independent claims, the defendant with the
removable claim against him may remove his action without the consent of the other defendant (this is only
in federal question cases)
Notice of removal must be filed within 30 days (once the defendant gets served)
Defendant can WAIVE the right to remove
Sometimes, even if a case is improperly removed to a court that does NOT have jurisdiction over it, it may
not have to be remanded
o The judgment is still valid if original jurisdiction exists at the time of judgment (caterpillar rule)
When a Federal Judge is adjudicating a substantive cause of action that is created by state law claim (not
federal law), the Erie Doctrine applies. The federal judge has to apply state substantive law but
procedural federal law.
Goal of the Erie Doctrine, Vertical Uniformity
1. Is this a case to which 28 U.S.C 1652 (the Rules of Decision Act) applies?
The Erie Doctrine is invoked when the Rules of Decision Act §1652 applies (When a FEDERAL court is
adjudicating a STATE LAW claim):
o Diversity of Citizenship and Alienage Jurisdiction
o Supplemental Jurisdiction claims
o Category 2 Federal Question claims (state law creates the substantive cause of action, but federal
law forms an essential element of the state law claim)
o Interpleader Actions
The federal court must apply federal procedural law and state substantive law
Its purpose is to create VERTICAL UNIFORMITY within a state (there should not be a different result in
a federal court across the street from a state court!) – We don’t want forum shopping (not fair to citizens of
the same state that have no choice but to try their state-law case in state court)
If this is not a case in which a federal court is adjudicating a State law claim, then 1652 and Erie does
not apply and the Erie Doctrine ends! If YES, the analysis continues!
WHAT state laws POTENTIALLY QUALIFY as State Substantive Law under 1652?
o 1 – The State Constitution (and decisions of the highest court interpreting it)
o 2 – State Statutes (and decisions of the highest court interpreting them)
o 3 – Decisions of the State’s Highest Court on ANY other matter, whether dealing with an issue
 Difference between Local law and General law
o definition
 Federal courts do not have the right to proclaim principles of “general common law” on
matters of law that are reserved to the States (10th Amendment)
WHICH state’s laws are considered for application by the federal court?
o This is to be determined by “CONFLICT OF LAWS” principles
 Klaxon – in an Erie situation, the federal court must apply the same “Conflict of Laws”
rules that would be applied by a State court judge in the state where the federal district
court sits (the federal court may end up not applying the substantive law of the state in
which it sits, but rather the substantive laws of the state that its state court’s “Conflict of
Laws” rules says it should apply)
 The Klaxon rule applies to §1406(a) transfer for improper venue
 Achieves vertical uniformity
The rule of Klaxon does NOT apply when the federal court has received the case after a §1404(a) motion to
transfer venue:
o Federal court must apply the “Conflict of Laws” rules that the transferor (transferring federal
court) would have applied in the case (what the transferring judge would have applied)
 This rule applies both when the defendant (Van Dusen) or the plaintiff (Ferens) files the
motion for transfer
Van Dusen-In 1964, in Van Dusen v. Barrack, court held that when a transfer of venue under 1404(a) is made
on the defendant’s motion, the transferee district court must apply the conflict-of-laws rules of the
transferor state in determining which state’s substantive law should be applied in the case
Ferens- Supreme court held that the Van Dusen rule should apply even when the plaintiff makes a transfer
motion under 1404a
What if there is NO State Constitutional Provision, State Statute, or State Highest Court Decision
defining the applicable state substantive law?
o The federal court must think: How would the State’s Highest Court rule if given this issue?
 A federal court may CERTIFY the issue to the highest court for guidance (if the highest state
court has authorized a certification process)
 If no certification process, the federal court must predict how the highest state court
would decide it - Gilstrap factors to consider (last ruling still good law b/c unlikely to be
 Relevant state precedents
 Analogous decisions
 Considered dicta
 Scholarly works, and other reliable data
The federal court predictions would not be binding, because is only a PREDICTION
Once the state law at issue has been identified and defined, the final question is:
Just because a state may treat something as procedural, this does NOT mean that it is procedural for the
purposes of the Erie Doctrine analysis!
York – NY had labeled its statute of limitations as a procedural law for purposes of their “conflict of
laws” rules, but the federal court had to apply it anyway – it was “substantive” for the purpose of Erie
because if the federal court failed to apply the law, it would substantially affect the outcome of the case
o York answers : Is it substantive or procedural for the purposes of the Erie Doctrine?
Two Tests to resolve the “substance v. procedure” question:
(1) TEST #1: The York “Outcome-Determination” Test (aka the Rules of Decision Act test)
o The intent of the Erie decision was to insure that the outcome of the litigation in the federal court
should be substantially the same as if it had been tried in a state court
o The question to be asked when determining whether a state law is SUBSTANTIVE IS:
 The “Twin Aims of Erie” should be kept in mind (Hana):
 1 – DISCOURAGE forum-shopping
 2 – Avoid inequitable administration of the laws (discriminate against citizens of
the forum state)
o If failure to apply a particular state law would result in encouraged forumshopping or an inequitable administration of the laws, the state law should be
treated as “substantive” for the purposes of Erie and should be applied by the
federal court!
Gasperini labeled these as the two elements of the “Outcome Determination” Test
o In Gasperini, the court decided that the NY law for an appellate court’s “de novo” review of a jury
verdict was incompatible with federal rule that the appellate court should reverse only if the trial
court “abused its discretion;” but applied NY’s “deviates materially” standard, rather than the federal
“shocks the conscience” standard
Balancing Test (Byrd) – a state law cannot be applied as “substantive” under the York test if the state law
would disrupt an “essential characteristic” of the federal judicial system
o There should be “no disruption of countervailing federal interests”
TEST #2 – The Hana Test (aka the Rules Enabling Act test)
a. Hanna test (Burlington)
1. Is there a federal rule that governs this topic ? (is there a direct collision with the federal rule
or state law is)
a. If there is, even though the state law may have come out substantive under York, we ask
is it constitutional (constitutional: rationally classified as substantive AND procedure)
b. Have the right to enact as long as don’t enlarge, modify
c. Does not count if incidental
2. If no federal procedure rule on point, then go to York
See if it can exist side by side.
If cant, apply the federal rule
Burlington – “discretion” is in direct collision with “mandatory”
o Step 1: Is the scope of the federal rule (or statute) sufficiently broad to cause a direct collision with
the state law
 If yes, the federal rule must be applied and will control the issue to the complete
exclusion of any contrary state law
Is there a federal rule or statute of procedure applicable to the situation?
 IF YES, then apply the Hana (Rules Enabling Act) test:
o Is the federal rule/statute sufficiently broad to cause a direct collision with state law?
 If yes, then the federal law CONTROLS (regardless of contrary state law)
 IF NO, then go to Step 2!
Is this state law “substantive”?
 Conduct the York “Outcome-Determinative” (Rules of Decision Act) test:
o If the federal court were to ignore the state law, would it significantly affect the
 Twin Aims: Would it encourage forum-shopping? Would it render an
inequitable administration of the law?
 IF YES, conduct the balancing test
o If the federal court has a countervailing interest, federal law should be applied
o If the state has a greater interest, the state law should be applied
IF NO, then the state law is not “substantive” for purposes of Erie
Reverse of Erie
Have state court judge adjudicating federal law cause of action
If you are adjudicating a federal law cause of action in state court…do you apply FRCP? No! use state
rules of procedure
When in federal court, federal procedure controls
When in state court, state procedure controls
“Notice pleading” consists of the plaintiff’s complaint and the defendant’s answer
The Complaint
Rule 8(a) tells us what must be in the plaintiff’s complaint:
o (1) A statement of the court’s grounds for SMJ
o (2) A “short and plain statement” of the claim showing that the plaintiff is entitled to relief
o (3) A demand for the relief sought
What qualifies as a “short and plain statement” of the claim???
o Coneley is the lead case defining what is required by Federal Rule 8(a) (2) uses which requires
that the short and plain statement of the claim will give the D fair notice of what the P’s clain is
and the grounds which it rests
o Conley had said that a complaint must show only that the plaintiff’s recovery is possible, that a
complaint should not be dismissed unless “NO set of facts” in support of his claim would entitle him
to relief (liberal)  This language was RETIRED by Twombly
 Leatherman- don’t need heightened pleading standard
 Swierkeqicz- 8a2 can apply to employment discrimintation
Twombly – plaintiff’s allegation of the companies’ “parallel conduct” was not enough to satisfy a complaint
for conspiracy – “we do not require heightened fact pleading of specifics, but enough facts to state a
claim for relief that is PLAUSIBLE on its face”
o The claim cannot be merely “possible,” “conceivable,” “speculative;” it must be plausible – but need
not be probable (greater than 50% chance of recovery)
o Plausibility requirement: A proper pleading must provide not only fair notice of the claim, but must
also state the grounds upon which the claim rests (this is context-specific; court’s discretion)
Iqbal – we must accept as true all of the FACTUAL allegations in a complaint; mere “legal conclusions are
not entitled to the assumption of truth” – they must be supported by factual allegations
o Cant answer in the abstract…. depends on situation. Has to have enough facts to make the claim
Rule 9 tells us what kind of claims require a heightened pleading (ie: allegations of fraud or mistake, a
claim for “special” damages, etc) – must plead with “particularity”
Plaintiff’s Initial Pleading
(1) Allegation of subject-matter
(2) Statement of the claim
(3) Demand for relief
Defendant’s Possible Responses
Preanswer Motion(s) (optional)
Answer to the Complaint
(1) Admit or deny the allegations
in the complaint
(2) Assert defenses that could have
been raised by preanswer motion
but were not (and were not
(3) Assert affirmative defenses
(4) Assert counterclaims against
the plaintiff
(5) Assert crossclaims against a
Defendant may also serve a thirdparty complaint to bring in a new
Result or Next Step
Ruling by the court; if denied, then
the defendant must serve an
Case Proceeds
Plaintiff must serve an answer to
the counterclaim
The codefendant must serve an
answer to the crossclaim
Third-party defendant must serve
an answer to the third-party
The Response
 After receiving the plaintiff’s complaint, the defendant can either make a motion or file an answer
 Motion (the defendant does not HAVE to make a motion) – NOT a responsive pleading
 Rule 12 governs “preanswer” motions
o Rule 12(b) – 7 motions to DISMISS (can also be stated in the answer):
o (1) Lack of SMJ (NOT WAIVABLE!)
12(b)(2) – 12(b)(5) are waivable defenses; if they are
o (2) Lack of PJ
not asserted in the FIRST motion or answer, they are
o (3) Improper venue
WAIVED and the defendant has lost his chance!
o (4) Insufficient process
[Rules 12(h)(1) + 12(g)(2)]
o (5) Insufficient service of process
o (6) Failure to state a claim upon which relief can be granted (challenged legal sufficiency)
o (7) Failure to join a party under Rule 19
 12(b)(6) and 12(b)(7) can be raised at ANY time through trial
 An answer must be served within (21) days after defendant receives summons/complaint
o Motions that extend:
o Rule 12(e) – defendant can move for a more definite statement if the pleading is vague/ambiguous
o Rule 12(f) – motion to sterile any redundant, immaterial matter from pleading
o Rule 21 – motion to add or drop party from the action
 Rule 6(b) permits the court to allow an extension of time periods
The answer must admit or deny ALLs factual allegations in the plaintiff’s complaint
Admissions or
under Rule 8(b)
The answer must raise any defenses that the defendant has, including:
(1) Defenses under 12(b) that could have been raised by preanswer motion but were not
(assuming they haven’t been waived)
(2) Affirmative defenses (additional facts create an avoidance of all or part of the
liability, even if the allegations of the party asserting the claim are true) (defendant
is injecting a new fact! If she’s right, she wins!) Rule 8(c)
The answer may contain counterclaims against the plaintiff under Rule 13(a) and (b)
The answer may contain crossclaims against codefendants under Rule 13(g)
 If the defendant does not deny an allegation, it counts as an ADMISSION
 Affirmative Defense – any defense that would allow the defendant to partially/totally avoid liability even if
the allegations against him are true (ie: statute of limitations)
o If you fail to assert affirmative defenses in your answer, they are waived (they are also waived if the
defendant chooses to file a motion and does not assert them)!!
Amendments (Rule 15)
 A party may amend its pleading ONCE as a matter of course
o Plaintiff must do so BEFORE being served with a responsive pleading (defendant’s answer)
o Defendant must amend within 21 days of serving his answer
 After that, a party may amend its pleading ONLY with the opposing party’s consent or leave
of the court (the court should grant leave freely when justice so requires)
 When should the court allow a party to amend?
 (1) When there is no evidence that the opposing party would be unduly prejudiced by the amendment
 (2) When the moving party has not unduly delayed in moving to amend
 Hill v. Equitable Bank – Even though the party delayed in asserting its claim (which was raised in response
to a counterclaim), the opposing party would not be prejudiced by an amendment – the opposing party
would have had no greater ability to defend against the new claim if it had been asserted in the original
o The non-moving party must show that it will be unfairly disadvantaged or deprived of the
opportunity to present facts/evidence which it otherwise could have offered had the amendment been
 Forman – Where substantial prejudice is NOT proven, a court may deny leave to amend ONLY where the
non-moving party can show bad faith, dilatory motive, undue/unexplained delay, futility, or repeated failure
to cure deficiencies by amendment
 Relation Back [Rule 15(c)] (if the statutue of limitations run out)
 This only addresses whether an amendment CAN relate back, NOT whether it is allowable!!!
 If requirements of 15(c)(1)(A), (B), or (C) are met, an amendment to a pleading may relate back to the date
of the original pleading and will NOT be barred by the statute of limitations
o 15(c)(1)(A) – an amendment will relate back when an applicable statute of limitations allows
relation back
 When Congress enacts federal statutory rights of action but does not provide a statute of
limitations, the federal court should adopt the statute of limitations of the most analogous
state right of action (of the state in which it is sitting)
o 15(c)(1)(B) – claim/defense in amended pleading arises out of “conduct, transaction, or occurrence”
set out in original pleading
Relation back is not allowed when the new claims depend upon events separate in time and type from the
original ones (new legal theory is allowable)
Rule 15(c)(1)(C) (krupski) deals with changing the party or naming of party against whom the claim is
asserted – must satisfy test of 15(c)(1)(B), must serve summons within 120 days, party being brought must
have had (INFORMAL) notice such that it will not be prejudiced in defending on the merits
o Lovelace v. O’Hara – Lovelace intentionally brought suit against officer in his official, rather than
individual, capacity, which immunized him from the claim; she was not allowed to amend her
complaint to change the party and have it relate back to the original – this was not a MISTAKE
 Defendant would have been prejudiced by an amendment because a suit against him in his
individual capacity, which would have required an entirely different defensive strategy
Supplemental Pleadings [Rule 15(d)]
If a party seeks to supplement a pleading, it must seek the permission of the court by motion
o The pleading must set out an event that happened AFTER the original pleading
A pleading can be supplemented even if it was originally defective in stating a claim or defense
If a plaintiff sues on both claims in SEPARATE actions, they CANNOT be consolidated if they do not share
a common question of law or fact
Rule 11 – Truthful Pleading
Hadges - Attorneys are required only to make a reasonable investigation of the facts and the law before
presenting the claim or defense; they do NOT have to certify that their representations are well grounded in
fact; Those in violation of Rule 11 must be given a “safe harbor period” – allows party 21 days to
withdraw or correct factual/legal contentions
Rule 11 specifically prohibits the imposition of monetary sanctions
Court may impose sanctions on its own initiative
Clients cannot be fined for bad legal arguments
Geisinger – Even though the defendants did not know for sure whether or not their counterclaim for medical
malpractice was true (and therefore needed investigation/discovery to determine it was valid), they were
permitted to assert it; it was a compulsory counterclaim, and its dismissal would have greatly prejudiced the
defendants – can be plead even without sufficient evidentiary support
Rule 82 – the rules of claim and party joinder only define when it is PROCEDURALLY permissible to join
an addition claim or party; they do NOT establish JURISDICTIONAL authority!
o Even if joinder is procedurally permissible, the court must still have SMJ, PJ, and be a proper
venue for the action
A decision NOT to join a FACTUALLY RELATED claim in a pending action when it is both procedurally
and jurisdictionally permissible to do so will usually preclude a party from litigation that claim in a
subsequent action (claim preclusion)
Real Party in Interest
Rule 17(a) – an action must be prosecuted in the name of the party in interest; this party must have suffered
an injury by the defendant’s action
o This rule does not tell us who the real party in interest is, but rather that the applicable substantive
law should be consulted in order to determine who it is
 If the substantive law does not create a right of action on behalf of a person, that party
CANNOT be the real party in interest
“Standing” – determines proper party to challenge gov’t action (when P challenges validity of statute, etc)
Schrag – Shareholders cannot sue directly for corporations unless they suffered losses different than those of
other shareholders; the real party in interest was the corporation which had since been dissolved
Capacity to Sue/Be Sued (legal capacity to stand in the court of law to bring a lawsuit)
Rule 17 B
A legally incapacitated person (age/mental infirmity) cannot be named as a defendant or a plaintiff in a
lawsuit, BUT a representative can be named on their behalf
Joseph Muller – The capacity of a corporation to sue/be sued is determined by the law under which it was
organized (17(b)); once it is determined that a corporation has the general capacity to sue/be sued, venue
statutes will determine the place of trial regardless of whether or not the laws under which the corporation
was organized limits the places where a corporation can sue/be sued (the shareholders were not the right
party in interest, the corporation was)
Joinder of CLAIMS
If a plaintiff (or ANY party
He may join AS MANY as he has against
asserting a claim) wants to assert
his opponent; can be any kind of claim,
Rule 18(a)
multiple claims…
need not be related
If the defendant wants to assert a
13(a) Compulsory: If the defendant’s claim
counterclaim against an opposing
arises out of the same transaction or
occurrence as his opposing party’s
complaint, he must state this claim in his
The joinder of counterclaims is
pleading (if he does not, he will be
Rules 13(a) and (b)
precluded from doing so in a later action)
13(b) Permissive: The defendant may
assert any other claims that he has against
*Opposing party = ANY party
his opponent that are unrelated to the
who has asserted a claim against
claim against him
If a defendant wants to assert a
Crossclaims are permissive and may be
crossclaim against another
asserted in a separate action
defendant (coparty)…
The crossclaim must arise out of the same
transaction or occurrence as the original
complaint or a counterclaim; OR it must
Rule 13(g)
relate to the property that is the subject
matter of an action
If a defendant asserts a claim against a
coparty under 13(g), he is then eligible to
invoke the claim joinder provisions of
Rule 18(a) and can join unrelated claims
Under Rule 18(b), a party may join 2 claims even if one is contingent on the disposition of the other
“Same Transaction or Occurrence” Test (Geisinger):
o A counterclaim is compulsory if it bears a “logical relationship” to the opposing party’s claim; if:
 Separate trial of the claims would involve substantial duplication of time/effort by parties
 The claims involve many of the same factual and legal issues
 The claims are offshoots of the same basic controversy between the parties
Tenneco – A party who chooses not to assert his claim for contribution as a counterclaim is NOT barred
from bringing a separate suit for contribution after judgment has been rendered; a claim for contribution
does not mature until judgment
o A claim that has not matured by the time a defendant’s answer was served CANNOT be
considered “compulsory”
Res judicata – once you assert one claim you must assert all other transactional related claims
o 13 (a) answers the res judicata question
Permissive Joinder of Parties
A plaintiff (or a party asserting a
- The claims asserted by multiple plaintiffs must
counter or crossclaim) can join
arise out of the same transaction(s) or occurrence(s);
Rule 20(a)(1),
with other plaintiffs if…
Rule 13(h)
- There must be at least ONE question of law/fact is
common to all plaintiffs
A plaintiff (or party asserting a
- The claims asserted against multiple defendants
counter or crossclaim) can join
must arise out of the same transaction(s) or
more than one defendant if…
Rules 20(a)(2), occurrence(s); AND
- There must be at least ONE question of law/fact is
Rule 13(h)
common to all defendants
Someone who is in possession of land/money claimed
Rule 22 or §1335 by many can bring all claimants before the court to
resolve their claim in a single proceeding
Impleader – A defendant can
Any time after the commencement of an action, a
bring into the lawsuit someone
defendant may serve a summons and “third-party
that he thinks should indemnify
complaint” on a person not a party to the action if they
Rule 14
him for all/part of the amount
may bed liable to him for indemnification
that he might have to pay an
opposing party
Defendant  third-party plaintiff
Impleaded party  third-party defendant
Intervention – If a person
Rule 24(a) – intervention of right
voluntarily wants to become a
Rule 24(b) – permissive intervention
Rule 24
party in the law suit
Rule 20
Only need ONE common question of law or fact!!!!
Rule 20(b) gives the court the right to order separate trials to protect any party against embarrassment,
delay, expense, or other prejudice
Lucas – Was permissible for plaintiff to join both Sears and City as Rule 20 defendants after P’s initial
injury at Sears (from falling on pencil) was worsened in ambulance crash on the way to the hospital
(determining several liability)
o Common questions (extent of injuries, how much each is liable for ultimate injury); would need
same doctors to testify if 2 trials were held; injury arose out of the same series of transactions
An impleader claim under Rule 14(a) must be based on some substantive legal theory that requires the
third-party defendant to reimburse the third-party plaintiff for all or part of the claim against the thirdparty plaintiff
Collini – Employer who was sued by its employees attempted to implead the Union under Rule 14, claiming
that the Union’s failure to represent the employees exacerbated the harm was NOT permissible; a
defendant cannot implead a party who may be DIRECTLY liable to the plaintiff – only one who is
liable to the defendant
Impleader is appropriate in the case of joint tortfeasors
Third-party defendants may also implead other persons who may be liable to them for all/part of any claim
asserted against them
Rule 22, §1335 – INTERPLEADER
NY Life Insurance – interpleader proceedings are “in personam” in nature (the property is not enough to
establish jurisdiction over claimants!); claimants must be personally served within the state for PJ
Rule Interpleader
Statutory Interpleader
Complete diversity required between
Only minimal diversity required – two
Diversity of
all plaintiffs and defendants
or more claimants of diverse
citizenship required
More than $75,000
At least $500
Amount in
Normal venue provisions of 28 U.S.C. In any judicial district where one or
§1391 apply
more of the claimants reside, 28 U.S.C.
Must serve process pursuant to Rule 4 Nationwide long-arm jurisdiction
Service of
with normal personal jurisdiction
permitting service upon the claimants
within any judicial district, 28 U.S.C.
Not required (although the court can
Must pay the stake into the registry of
Deposit of
the court or post a bond to assure
“stake” with the so order using its general equitable
compliance with future court orders
Court can only enjoin the parties over Court can enjoin the claimants
whom it is able to obtain personal
nationwide from commencing or
jurisdiction in conventional ways;
maintaining ongoing actions in any
Anti-Injunction Act applies
state or federal court concerning the
Interpleader 2-stage process:
o (1) Stakeholder shows that interpleader is proper because multiple claims against the stake pose the
threat of double/multiple liability
o (2) Claimants litigate their rights to the stake
Rule 24(a) – intervention of right (often a Rule 19 required party)
Rule 24(b) – permissive intervention
Sierra Club – timber purchasers were permitted to intervene as of right under Rule 24(a) in an action in
which Forest Service was being sued by environmental groups for an injunction to stop cutting down trees
1 Application for intervention must be timely; consider:
(a) Length of time between when the would-be intervenor knew/should have known that its interest
would not be protected by a party to the action and its petition to intervene
(b) Prejudice that existing parties may suffer (measure by intervenor’s delay, not inconvenience)
(c) Prejudice to would-be intervenor if not allowed to intervene
(d) Unusual circumstances either before/against determination of timeliness
2 Applicant must have an interest relating to the property/transaction that is the subject of action
3 Applicant must be so situated that the disposition of the action may, as a practical matter,
impair/impede its ability to protect its interest (would not be legally bound b/c not a party to action)
4 Applicant’s interest must be inadequately represented by the existing parties (applicant has burden of
Permissive Intervention (Rule 24(b)) – intervention is allowed by permission of the court if the party
seeking to intervene has a claim or defense that shares with the main action a common question of law or
o Nonparty can intervene on either side when the party could NOT have been joined under Rule 20(a)
Rule 42 – actions involving a common question of law or fact can be consolidated
Required Joinder of Parties
Rule 19(a) “Categories” of REQUIRED Parties
In the person’s absence, the court cannot accord complete relief among existing
Rule 19(a)(1)(A)
The person claims an interest in the action and is so situation that disposing of the
action in his absence may as a practical matter impair or impede the person’s
Rule 19(a)(1)(B)(i)
ability to protect the interest
The person claims an interest and is so situated that disposing of the action in the
person’s absence may leave an existing party subject to a substantial risk of
Rule 19(a)(1)(B)(ii)
incurring double/multiple or inconsistent obligations because of the interest
If a party meets one of the requirements of Rule 19(a) and joinder is FEASIBLE (PJ, SMJ, Venue), it
will be required that the party is joined; If a person has not been joined as required, the court must order
If a party meets one of the requirements of Rule 19(a), but joinder is NOT FEASIBLE, it must be decided
under Rule 19(b) whether “in equity and good conscience” the action should proceed or should be dismissed
Rule 19(b)(1)
Rule 19(b)(2)
Rule 19(b)(3)
1 – Prejudice to required party if judgment is rendered in his absence
(Would absentee be affected in a practical sense? Would prejudice be
immediate and serious? Or remote and minor?)
2 – Prejudice to existing parties if judgment is rendered in absence of required
(Would any party be subject to second action brought by absentee? How serious
is this threat?)
The extent to which prejudice could be lessened/avoided by:
The court (ie: award money instead of specific performance; “shaping relief”)
The required party (can voluntarily appear in the action: intervene)
Party in action faced with threat of second suit by absentee (ie: defendant
could bring in absentee under defensive interpleader)
*The court should then consider whether this would impose
undue hardship on the absentee*
Whether judgment rendered in person’s absence would be adequate
(The extent to which relief could be accorded among the parties)
Whether the plaintiff would have an adequate remedy if action were dismissed
(Can the plaintiff sue in another forum where joinder is possible? – If no, the
case MUST be continued without this party)
If after balancing these factors, the court decides that the party is “INDISPENSABLE” (more
preferable to dismiss the action than continue in his absence), the action will be DISMISSED
Rule 19(b)(4)
Temple – joint tortfeasors are NOT indispensable parties under Rule 19(b) and a claim should not be
dismissed for failure to join them; a tortfeasor with joint-and-several liability is a PERMISSIVE party
Tastee-Freez – Good example of Rule 19 analysis; Standard of review for 19(b) analysis is “abuse of
discretion;” If ATF and JF were not joined, they would not be bound by the decision on a contract to which
they were parties; they were necessary as defendants (if there had been an anchor claim, there would not
have been SMJ because P could not have asserted any claims against these Rule 19 joined defendants);
joinder would have destroyed diversity – No SMJ; prejudice would be great; action could be brought in PR
ONE – Is this absent person a required party? (Does this party meet ANY one of the categories in 19(a)?)
o If NO, the party need not be joined
o If YES, proceed to Step 2
TWO – Can the required party be properly made a party (SMJ, PJ, Venue)?
o SMJ is only a problem in a federal court action based solely on diversity – there would be no
supplemental jurisdiction over a jurisdictionally insufficient claim by P against Rule 19 joined party,
OR over one asserted by a Rule 19 plaintiff
o PJ must be attained over both Rule 19 plaintiffs and Rule 19 defendants
o Venue – if the required party’s joinder would make venue improper, the court must dismiss the party
(can intervene instead and waive venue and PJ)
If YES, then the party’s joinder is “feasible” and he will be required to join
If NO, then proceed to Step 3
THREE –Is the party indispensable? (Court will determine whether case should be dismissed or cont’d
through analysis of the four 19(b) factors)
If YES (indispensable), then the entire action should be dismissed without prejudice
If NO, then the current action may proceed in the person’s absence
Rule 23 governs Class Actions
Numerosity Requirement - The class must be “so numerous” that joinder of
all members of the class is “impracticable”
Commonality Requirement - There must be “questions of law or fact common
to the class”
Typicality Requirement - The claims or defenses of the representative parties
must be “typical” of the claims or defenses of the class members
Representative Requirement - The representative parties must “fairly and
adequately protect the interests of the class”
*Nobody Can Tell Rich Anything!*
Prosecuting separate actions by or against individual class members would
Rule 23(b)(1)(A) create a risk of inconsistent or varying adjudications with respect to
Rule 23(b)(1)(B)
Rule 23(b)(2)
Rule 23(b)(3)
individual class members that would establish incompatible standards of
conduct for the party opposing the class; or
Prosecuting separate actions by or against individual class members would,
as a practical matter, be dispositive of the interests of the other members
not parties to the individual adjudications or would substantially
impair or impede their ability to protect their interests; or
The party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a
whole; or
 Common questions of law/fact predominates over individual questions
 Class action is superior to other available methods for fairly and
efficiently adjudicating the controversy
(Example: mass tort)
Court must certify the action and assign adequate class council (Rule 23(g))
Notice must only be given to reasonably identifiable class members in (b)(3) class actions – have the right
to “opt out;” if a member does not opt out, he will be bound by the judgment
Settlement/dismissal of a class action must be APPROVED BY THE COURT (Rule 23(e))
As long as the representative of the class is diverse from all defendants, there is diversity!
Discovery is governed by Rules 26-37
Scope of Discovery [Rule 26(b)(1)]: Parties should be able to obtain all relevant information in the
possession of any person before trial, unless the information is privileged
o Relevant = information that appears reasonably calculated to LEAD to the discovery of admissible
evidence (information not admissible at trial IS discoverable so long as this requirement is met)
A request for discovery should be considered relevant if there is any possibility that the
information sought may be relevant to the claim or defense of any party! (very broad)
If information sought relates to the claim or defense, it is discoverable WITHOUT court order
o If information relates only to the subject matter of the action, the seeking party must ask the judge
and have good cause for seeking this information
Anderson v. Hale – Plaintiff was entitled to discover state bar investigative files on defendant because they
may contain incidents of the same type (this is RELEVANT!) – CAN
Rule 26(f) requires the parties to have a prediscovery conference (ASAP!) and make a plan – can be court
ordered under Rule 16 (can object to initial disclosures at this conference)
o Initial disclosures must be made within 14 days of this conference
Mandatory Disclosures: Rule 26(a)(1) – (3)
(1) At Outset: Parties must exchange basic information about the case regarding potential witnesses (need
only disclose witnesses you plan to USE to SUPPORT your claim at trial), documentary evidence,
damages, insurance
(2) During Discovery: Parties must exchange information about expert witnesses who MAY be used at trial
– these disclosure are due at least 90 days before trial
(3) As Trial Approaches: Parties must provide info regarding evidence they MAY offer at trial (at least 30
days before trial), unless being used SOLELY for IMPEACHMENT purposes
o If a party does not promptly object to the use of a witness’ deposition at trial, this objection is
Parties must supplement/correct mandatory disclosures
o If a party fails to disclose this mandatory information, it will be precluded from presenting such
information or witnesses, unless failure is substantially justified or harmless (Penalty: Rule 37)
Under Rule 26(a) a party is NOT required to identify persons or documents that are UNFAVORABLE to
the party’s position (under initial disclosure)
o If such information is REQUESTED, however, the party MUST disclose it, unless it is privileged or
otherwise protected
Limitations on Discovery
Privileged Matter: privilege against self-incrimination (5th Amendment); attorney-client privilege; work
o Work product is only discoverable upon a showing of substantial need and undue hardship by the
party seeking it
If no objection is made as to privilege either before or during a deposition, this objection is WAIVED; if it
is asserted, the deponent need not give an answer – it will later be determined whether or not the
information is privileged, and thus whether or not the deponent is obligation to provide an answer
o A privilege is waived if the holder of the privilege voluntarily discloses or consents to disclosure of
the privileged matter
A party/person from whom discovery is sought can seek a “protective order” from the court to limit
Rule 26(b)(2)(C) – requires the court to LIMIT the frequency and extent of discovery
otherwise allowed under the rules to guard against redundant or disproportionate discovery
 On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that:
o (i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less
o (ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
o (iii) the burden or expense of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues
Behler – documents relating to witness’s previous experience as a defense expert for insurance
companies was discoverable, but extent was limited by the court (tax returns not necessary); witness
ordered to submit to questioning through a deposition, during which evasive answers would not be tolerated;
must produce information relevant to the proposed investigation into his credibility; protective order issued
on the witness’s financial information – may confuse jury (experts can be paid what would seem like A
LOT to a jury – may cause prejudice against him)
o Credibility of witnesses is relevant in scope of discovery - A witness may always be impeached by
evidence that he is biased, prejudiced, has a financial interest in the outcome of the case, or a motive
to testify in a particular matter
(1) Oral and Written Depositions (Rules 30 and 31)
Can be taken of parties and nonparties
(2) Interrogatories (Rule 33)
(3) Requests for the production of documents and tangible things (Rule 34)
Methods 2-5 can be
o If a NON-PARTY is in possession of such documents/things, it can be
used on parties
served with a subpoena duces tecum to produce (Rule 45)
(4) Physical and mental examinations (Rule 35)
(5) Requests for admission (Rule 36)
1. DEPOSITIONS (record of testimony)
In the event that a deponent becomes “legally unavailable” to testify at trial (within meaning of Rule 32), a
deposition may be used as a substitute for the deponent’s live courtroom testimony – exception to “hearsay”
o Deponent is placed under oath
o Is subject to direct and cross-examination by the parties
If the deponent’s testimony at trial is inconsistent with his deposition testimony, the deposition may be used
at trial to impeach the credibility and trial testimony of the deponent
Oral Depositions (Rule 30)
Party gets NOTICE; Non-party gets a SUBPOENA (Rule 45)
o Begin process by giving written notice to all parties in the action (must provide time and place, name
and address of deponent, and the method for recording the testimony)
 If the deponent is a corporation, etc, the notice can name the organization and describe the
matters of examination; the organization is then required to designate proper people to be
deposed on its behalf
o If a party deponent fails to appear at the depo after proper notice, he is subject to Rule 37 sanctions
– court can dismiss action or render a default judgment against the non-appearing party (may be
ordered to pay reasonable expenses incurred by the other parties/attorneys in attending the
 If a non-party fails to show, the court may hold them in contempt if there is no good cause
for failure to appear
Riley v. Murdock – Plaintiffs can choose and change medium of recordation of a deposition; a video
recording is permissible – it allows the fact-finder to assess the witness and consider his demeanor while
o Video deposition would be the best method if it is foreseeable that a witness will be legally
unavailable by the time of trial – best way to preserve testimony
Written Depositions (Rule 31)
Disadvantage – questions are prepared ahead of time; no spontaneous follow-up questions; no opportunity
to observe witness’s demeanor
Objections during a deposition do NOT permit the deponent not to answer (unless preserving privilege)
If deponent can show undue burden and expense because of the location, the court can order a protective
order to impose spatial limits
Appearing for a Deposition
A non-resident plaintiff must appear for a deposition in the judicial district in which he has instituted
suit (unless granted protective order because of undue hardship)
o Courts are more willing to enter a protective order for a nonresident defendant than a nonresident
plaintiff (plaintiff chose the forum!)
Rule 45(b)(2) – A subpoena compelling a non-party’s appearance at a deposition within a judicial
district may be served at any place:
(A) Within the judicial district of the issuing court
(B) Outside the district, but within 100 miles of the site of the deposition
(C) Within the state of the issuing court (provided state statute/rule authorizes it)
(D) As authorized by the court if a federal statute so provides
*An attorney may issue a deposition subpoena on behalf of ANOTHER federal district court where
the non-party may be properly served and deposed
2. *State subpoena power is limited to the boundaries of the state
Can only be served upon PARTIES to the action
The party served must answer fully in writing under oath
By way of an interrogatory, a party can get more information – the responding party has 30 days to respond
(as opposed to on the spot); at a deposition the deponent is required to answer only on the basis of what he
personally knows
o Respondents to interrogatories must answer not only with information they personally know, but
also with information possessed by their attorney/insurers/employees/investigators/agents, etc
Answers may only be admitted in evidence at trial AGAINST the answering party, and not BY the
answering party if he were to become legally unavailable by the time of trial
Contention Interrogatories
These interrogatories seek to find out what a party contends (opinion) and the factual and legal basis for
those contentions
o An interrogatory that seeks a party’s opinions or contentions relating to a fact.
Failure to respond is not excused on the ground that discovery sought was objectionable; if no timely
objection is stated with specificity, the objection is waived
There is a duty to amend interrogatories in a timely manner if necessary
It can be requested that a deponent brings certain documents to the deposition
o It is better to request the production of documents BEFORE a deposition so that they can be
reviewed beforehand
The request for production:
o (A) Must describe with reasonable particularity each item(s) to be inspected
o (B) Must specify a reasonable time/place for inspection
o (C) May specify form(s) in which e-info is to be produced
These requests can be joined with interrogatories
Can request documents/tangible things from non-parties through Rule 45 subpoena duces tecum
o Must send notice before subpoena
only on a party****
Requests can be made for opposing party to admit the truth of matter relating to:
o (A) facts, the application of law to fact, or opinions about either; and
o (B) the genuineness of any described documents
A party must respond to a request for admission within 30 days – AUTOMATIC ADMISSION if no
timely response and no objection
Admissions cannot be used against someone in another proceeding
There is a duty to amend
Judicial Admission – an admission under this rule CONCLUSIVELY establishes the matter admitted –
there can be NO introduction of contra evidence
o This is different from an “evidentiary admission” – not conclusive; contra evidence may be
The court can, on motion for good cause, order a party whose mental/physical condition is in controversy to
submit to a physical/mental examination by a qualified examiner
o “Good cause” and “in controversy” requirements MUST be satisfied before an exam is ordered
Rule 16 Pretrial Conferences and Orders
The pretrial order SUPERSEDES the pleadings by eliminating and preserving issues for later adjudication at
o If claims/defenses/issues are not included in the pretrial order, they are WAIVED, even if they had
been asserted in the pleadings!
o Matters included in the order are preserved for trial even if they were not asserted in the pleadings
All discovery requests, responses, objections, and mandatory disclosures must be signed by the
attorney or unrepresented party – discovery certification – Rule 26(g)
o Signature = to the best of the person’s knowledge, information, and belief formed after a reasonable
inquiry the disclosure is complete and correct as of time it was made
Motion to Compel (Rule 37: the umbrella rule governing discovery enforcement and sanctions)
Discovery Enforcement has 2 stages:
1 – Motion is brought under Rule 37(a) for an order compelling disclosure or discovery that has been
refused by another party
2 – If an order is entered and the party still refuses, seek sanctions under Rule 37(b)
o Court can impose sanctions it deems “just” given the circumstances of the case and the seriousness
of the violation (dismissal and default judgment = typically last resort)
Special Consideration for E-Discovery
A party need not provide e-discovery if information is not reasonably accessible because of undue burden
or cost (court may still order it if the other party shows “good cause;” still, the court can LIMIT discovery)
o This is VERY fact-specific
Zublake – in a sex discrimination case, the plaintiff wanted her company to produce e-mails evidencing
communication between employees about her that were located on back-up tapes; court engages in “costshifting” analysis in order to determine how must discovery should be given despite burden
o Whether production of documents is unduly burdensome or expensive turns on whether they are kept
in accessible or inaccessible format; Back-up tapes are considered “inaccessible”
o UBS should produce all accessible e-mails at its own expense; should produce only a sample of
back-up tapes (sampling) – will inform court of cost-shifting analysis after it is seen what
production of such documents entails
The 7 Factor Test for Cost-Shifting (first 2 are the most important)
1. The extent to which the request is specifically tailored to relevant material
2. The availability of such information from other sources
3. The total cost of production compared to the amount in controversy
4. The total cost of production compared to the resources available to each party
5. The relative ability of each party to control costs and its incentives to do so
6. The importance of the issues in the
7. The relative benefits to the parties obtaining the information
ACN's 7 Factors for determining “Good Cause” (for e-discovery when production would be burdensome)
1. The specificity of the discovery requested
2. The quantity of information available from other and more easily accessed sources
3. The failure to produce relevant information that seems likely to have existed but is no longer available on
more easily accessed sources
4. The likelihood of finding relevant information that cannot be obtained elsewhere
5. Predictions as to the importance and usefulness of the further information
6. The importance of the issues in the litigation
7. The parties’ resources
Work product protection is NOT absolute – such material is discoverable upon a showing of substantial
need and undue hardship by the party seeking discovery
Privileged matter is FULLY protected from discovery (irrespective of need)
o 5th Amendment privilege against self-incrimination can be asserted in a civil action IF a criminal
charge is pending/may be filed against a person (this protects facts too, and not just communications)
Attorney-Client Privilege
Elements required to establish privilege:
(1) A communication
(2) made between privileged parties
(3) in confidence [and]
(4) for the purpose of obtaining or providing LEGAL ASSISTANCE for the client
Communications must be intended to be confidential
Upjohn – company counsel conducted an internal investigation, distributing questionnaires to employees
that were to be treated as “highly confidential;” IRS was unable to discover these documents because
attorney-client privilege DOES apply when the client is a corporation (in this case it was the employees
who would be best suited to give information and aid in the investigation)
o Facts must be DISCLOSED; Communications must be PROTECTED
o Although these documents were privileged and protected from discovery, the gov’t was free to
question the employees on its own
Work Product (Trial Prep Materials)
In order to be considered work product, the materials must have been prepared in anticipation of litigation
A party must demonstrate a substantial need for the material an undue hardship in obtaining the subtantial
equivalent by other means
Hickman v. Taylor – Tug company employed a law firm to defend them after a tug sank; their attorney had
someone take the testimony of 4 survivors; opposing attorney was denied production of these documents
because this was “work product” and there was no evidence that there would be undue hardship in
obtaining these testimonies by conducting own investigation
o Not EVERYTHING that is the product of trial prep is protected; FACTS are not protected – there
should be mutual knowledge of relevant facts between the parties
Two Types of Work Product:
1. Fact/Ordinary Work Product – documents/things that contain general factual information relevant to the
 need to show substantial need
 inability to get substantial equivalent without undue hardship
2. Opinion Work Product – consists of the mental impressions, conclusions, or legal theories of a party’s
attorney OR OTHER REP
 rare situation
 far stronger showing
o This is entitled to an extremely high level of protection – there is near immunity, except when the
attorney’s mental impressions are directly at issue in the case
o Some courts have allowed the discovery of opinion work when the protected opinions and mental
impressions are central to a party’s susbtatnive claim or defense
Estate of Chopper – Opinion work product can be discovered only in rare and extraordinary circumstances –
the need to cross-examine experts is NOT so rare/extraordinary as to establish an exception; even when
opinion work product is shared with an expert witness in preparation for trial, it still has near
absolute immunity from discovery1
Alta Health – contention interrogatories are obtainable, even though they contain the opinions/contentions
of attorneys, if answers would serve a substantial purpose in expediting the lawsuit, leading to evidence or
narrowing the issues
Discovery as to expert witnesses who are not expected to testify at trial is not allowed unless it is
IMPRACTICABLE for the party to obtain facts or opinions on the same subject by other means (exceptions
in Rule 26(b)(4)(B))
o The identity of such witnesses is protected
Bank Brussels – If a party is seeking to discover a non-testifying expert, the party must show exceptional
circumstances when there is NO other practicable alternative by which they can obtain the information:
o Examples of “exceptional circumstances:”
o (1) The object or condition observed by the non-testifying expert is no longer observable by an
expert of the party seeking discovery
o (2) The costs of replicating such expert discovery on a contested issue would be judicially
Policy Considerations underlying Rule 26(b)(4)(B)
1. The interest in allowing counsel to obtain the expert advice they need in order to properly evaluate
and present their clients’ position without fear that every consultation may feed opponent’s side
2. The view that each side should prepare its own case at its own expense
3. The concern that it would be unfair to the expert to compel its testimony and that experts might
become unwilling to serve as consultants if they suspect their testimony would be compelled
4. The risk of prejudice to the party who retained the expert
Default Judgments (Rule 55)
Failure to appear after being served with process can result in a default judgment
o Can also result if a party fails to appear at a scheduling, does not participate in good faith, is
unprepared, does not obey order, fails to produce discovery
Commission of a default v Default Judgment
o Prerequisite to default judgment
Before a default judgment, a party defaults
Default Judgment can be entered by CLERK when:
o P’s claim is for a sum certain/can be computed with certainty
o D has defaulted for failure to appear, and
o The defaulting D is not an infant or incompetent
 COURT can still enter DJ if not all requirements are met
The entering of a default judgment is DISCRETIONARY with the court; Should consider:
o Amount of money involved
o Whether issues of public importance are involved
o Whether default is technical
o Whether adversary has been prejudiced by defaulting party
o How harsh the DJ would be
If a party HAS appeared, he must be given 3 days notice of application for DJ before entering it – gives him
time to show it should not be entered (entered by the court)
A default judgment must NOT differ from or exceed the relief demanded in the pleadings
Even after a default has been entered, it can be set aside if “good cause” is shown by the defaulting party
(Rule 55(c))
Pretzel – default was entered against Imperial (defendant) because it did not file an answer and did not
attend the hearing; after requesting that default be vacated, Imperial submitted an answer (failed to request
leave of court and failed to serve P with copy); was given chance to correct answer and present a more
legitimate defense, which it did not do  default judgment entered
o Default was properly entered after failing to file an answer and attend status hearing
 Must show good cause for default in order to vacate: lack of communication between client
and attorney is NOT sufficient, marking down the wrong date is NOT sufficient
Must take quick action to correct it – Imperial filed answer 4 weeks past due date
Defaulting party must have a meritorious defense to claim – denial of allegations is not
Judgment on the Pleadings (NOT TESTED)
Rule 12(c) – ANY party can move for judgment on the pleadings after the pleadings are closed
BE GRANTED (by defendant)
Court MAY NOT take into consideration any matter OUTSIDE of the pleadings
12(f) – Allows P to challenge sufficiency of a defense
Summary Judgment (Rule 56)
When a party motions for summary judgment, this is BEFORE trial; Moving party must show that:
o There are NO disputes regarding MATERIAL FACTS (the purpose of a trial is to resolve such
o He is entitled to judgment as a matter of law
 Court must draw all inferences in FAVOR of NONMOVING party, and be convinced that
100/100 times no reasonable jury could find in nonmoving party’s favor
Look to affidavits, interrogatories, depositions (can’t rely on pleadings!) when looking at “evidence”
Even if the requirements for SJ are met, it is within the court’s DISCRETION to grant it
Celotex – The moving party need not negate the allegations of the nonmoving party; need only satisfy
burden of proving the absence of a genuine issue of material fact
o This case did not pass SJ because there was still a dispute as to whether P’s husband’s contraction of
asbestos was the result of exposure to a Celotex product
District courts have the power to enter SJ sua sponte, so long as the losing party was on notice that
she had to come forward with all of her evidence
Judges are NOT supposed to resolve factual disputes or weigh evidence in determining motions for
summary judgment
Voluntary/Involuntary Dismissals (Rule 41)
A plaintiff can voluntarily dismiss by filing:
o Notice of dismissal BEFORE opposing party serves answer or motions for SJ; OR
o Stipulation of dismissal signed by all parties
Court can order voluntary dismissal
If a D has pleaded a counterclaim before being served with motion to dismiss, the action may still be
dismissed IF the counterclaim can remain pending for independent adjudication
Two-Voluntary Dismissal Penalty – If P previously dismissed any state or federal court action based
on/including same claim, a notice of dismissal for the SECOND time in a FEDERAL COURT action
operates as an adjudication on the merits (WITH prejudice)
Lake at Las Vegas Investors – company dismissed first action voluntarily because Nevada statute said that a
foreign corporation cannot bring/defend in an action until registered in the state and the company was not
yet registered; After registering, they immediately refiled suit based on the same claim; Voluntarily
dismissed for second time against one of the parties; Was not able to add this party again later (as well as its
subsidiaries) because of two-voluntary dismissal penalty
o Even though first dismissal was because of the statute, it was still voluntary
An involuntary dismissal operates as an adjudication on the merits and is dismissed with prejudice
o P is only barred from bringing same claim in same court; can refile elsewhere (for purpose of 41(b))
 Semtek – federal law will adopt state law to govern most res judicata questions when a
federal court renders a judgment in a diversity action (unless the state law is somehow
incompatible with federal interests)
Offer to Settle (Rule 68)
Defending party can offer to have judgment entered against it on specified terms; if opponent does not
accept, the cost of action will shift to the opposing party if judgment is not more favorable than the
unaccepted offer
o Rule 68 applies only to judgment obtained by PLAINTIFFS in an amount LESS than the
defendant offered
Alternative Dispute Resolution
Arbitration – parties present case to a neutral third person empowered to render a decision on the case
o Arbitrator’s award is subject to VERY LIMTIED judicial review; decision is recognized and
enforceable to the same extent as if it had been rendered in the court
Mediation – Mediator has no decision-making power, but facilitates parties is reaching a settlement
Summary Jury Trial – Non-binding proceeding designed to give attorneys/clients idea of what to expect
during the actual trial (has a jury that renders a fake verdict)
Mini Trials – neutral advisors give feedback
7th Amendment Right to a Trial by Jury applies to CIVIL actions in FEDERAL court
o The 7th Amendment does NOT apply to states
RULE 38 sets out basic procedures for demanding a jury trial in the federal courts
Beacon Theaters & DQ:
o In order to determine whether there is a right to a jury trial, the court must determine:
 (1) Was there an analogous cause of action at common law?
More similar to LAW or
 (2) What kind of remedy is sought?
o The “equitable clean-up” doctrine is not followed
 NOW! When legal and equitable claims are asserted in the same actions, all legal issues will
be tried FIRST by a jury
Some states still employ the equitable clean-up doctrine: there will be no jury if equitable claim in main
claim and legal claims are incidental
Rule 48 authorizes 6 member jury trials
If a right to a jury trial exists, it must be REQUESTED (can be by ANY party) – Rule 38
o The demand for a jury trial may be included in pleading; if not, must be made in writing no later
than 14 days after the LAST PLEADING; Burns – “special reports” are NOT pleadings (pleadings
identified in Rule 7(a))
Once a demand for a jury trial has been made, it cannot be withdrawn without consent of all parties
Rule 39 gives courts authority to order a jury trial even if not demanded by parties
Burns v Lawther
Selection of Jurors (Rule 47)
“Vior dire” Examination – attorneys question all possible jurors
NJ- judge asks questions
o Challenges for Cause: Attorneys can make UNLIMITED challenges for cause – if juror appears
unable to serve as a fair and impartial fact finder
 The trial judge is given broad discretion in sustaining/denying challenges for cause
 Bell – probable prejudice exists when potential juror says she would feel “awkward”
returning to her doctor for treatment after serving on a jury in a medical malpractice action
against him
o Peremptory Challenges: May be exercised by party without giving reason (only have 3)
 Edmonson & J.E.B. – you must have a race and gender neutral reason for using your
peremptory challenges
Jury Instructions (Rule 51) – judge instructs jury on legal principles; parties can request or object to
particular instructions
Verdict (Rule 49)
General Verdict – jury rules in favor of one party and awards damages with no explanation
Special Verdict – jury must return writing findings on issues of fact; then the court applies the law to the
General Verdict with answers
o Selgas – Where answers on a special verdict form are inconsistent, it is appropriate to resubmit
questions to the jury; a party who fails to object to resubmission waives that objection
Judgment as a Matter of Law (JMOL) – Rule 50(a)
Court may issue JMOL if a party has been FULLY heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmoving party
(same standard as summary judgment)
o This motion can be made at any time before case is submitted to jury
A party MUST make a Rule 50(a) motion in order to preserve its ability to later file a RENEWED motion
for JMOL (judgment notwithstanding the verdict) after jury returns decision – Rule 50(b)
o Unitherm – made 50(a) motion which was denied; later appealed asking for a new trial – this was a
procedural mistake – he had to have either filed his 50(b) motion or made a motion for a new trial
(Rule 59)
Motion for a New Trial (Rule 59)
Must be filed no later than 28 days after judgment
On a motion for a new trial, the appellate court must weigh the evidence and determine whether the jury
verdict was seriously flawed and clearly against the weight of the evidence (the verdict may still be “legally
sufficient” under Rule 50)
o Remittitur – if the jury verdict is so excessive that it “shocks the conscience” the court will give P
the opportunity to either accept a reduction or endure a new trial
o Additur – if the court finds verdict to be inadequate, it will give D the option of accepting the
increase or enduring a new trial  THIS IS NOT ALLOWED IN FEDERAL COURTS
Appellate Review
Right to Appeal:
o (1) Prevailing party CANNOT appeal
o (2) Nonparty cannot appeal
o (3) Party cannot appeal judgment against another party
A judgment must be FINAL before an appeal can be taken from the judgment
A party who voluntarily complies with a judgment waives the option to appeal
Harmless Error Doctrine – if error was NOT prejudicial and did not affect outcome of the case, it will not
be reversed on appeal
Question 1
Question 2
Question 3
Question 4
Was the alleged error properly preserved for appeal in the trial court?
Assuming the error was properly preserved for appeal, does the challenged
action constitute error under the appropriate standard of review?
Assuming error was committed and properly preserved for appeal, was the
error “prejudicial” or “reversible” error?
Did the party seeking the appeal meet the time limits set for bringing an
Standards of Review
o LEGAL errors – de novo (appellate court decides issue anew)
o FACT FINDING errors – deferential (only set aside if clearly erroneous)
o DISCRETIONARY errors – deferential (only set aside for clear abuse of discretion)
Final Judgment Rule §1291
Gagnon: Judgment is final as opposed to interlocutory when:
o (1) Trial court’s action fully decides and disposes of the whole matter (there is nothing left for
o (2) No subsequent proceedings in the case will render the appellate court’s decision immaterial
o Cases Involving Multiple Claims/Parties (Rule 54) – if court enters judgment on one/some (but not
all) parties/claims in a multiple party/claim action, those decisions are appealable before final
judgment of action is made
o “Collateral Order” Doctrine
 Certain matters are appealable when:
 (1) Final determinations on those matters are made
(2) They are separate from and collateral to merits of claim:
o (a) if matters are too important to be denied immediate review
o (b) if delay in appellate review may result in matter being effectively
unreviewable after termination of entire action
o (c) if the matter involves a serious, unsettled question of law
o Interlocutory Appeals §1292
 Involve decisions about matters that may involve serious harm to a party before entire
action is concluded; 2 types:
 §1292(a) – appeal from certain interlocutory orders as a matter of right
(granting/continuing/modifying/refusing injunctions, etc)
 §1292(b) – authorizes appeal when district judge certifies in writing that the order
involves a controlling question of law
Extraordinary Relief – after time for ordinary post-verdict motions and appeal has expired
Rule 60(b) authorizes post-judgment motions on 6 grounds:
(1) mistake, inadvertence, surprise, excusable neglect
(2) newly discovered evidence that could not have been discovered in time to move for new trial
(3) fraud, misrepresentation, or misconduct by opposing party
(4) judgment is void
(5) judgment has been satisfied/released/discharged; based on judgment that has been reversed; applying it
is no longer equitable
(6) any other reason that justifies itself
o Must be made within a reasonable time – no more than a year past judgment
This is in the SECOND action!!!
Res Judicata (Claim Preclusion)
If a VALID and FINAL judgment (“Adjudication on the merits/Dismissal with prejudice) has been
rendered in the 1st action as to a CLAIM, Res Judicata precludes:
o (1) The party ASSERTING the claim in FIRST action (and those in privity with this party)
o (2) From asserting or RE-LITIGATING the SAME CLAIM or any part thereof
o (3) Or any TRANSACTIONALLY RELATED CLAIM (no “claim-splitting”)
 Res judicata turns the “may” of Rule 18(a) to a MUST
 Transactionally Related?
 Are the facts related in time, space, origin, or motivation? Do they form a
conventional trial unit?
o (4) In a SECOND action (whether in same or different jurisdiction)
o (5) Against the party whom this claim has ALREADY been asserted against (or those in privity with
this party)
 It does not matter if the party asserting the claim is now prepared to present to evidence or
present a new legal theory
Res judicata applies to that which was ACTUALLY litigated, AND that which MIGHT have been
litigated (this applies to defendants too)
o Had this claim “ACCRUED” by the time of the first action?
When is the judgment in the 1st Action VALID?
Must have had proper SMJ, PJ, defendant must have been served with proper notice and given the
opportunity to be heard
When is the judgment in the 1st Action FINAL?
The case has CONCLUDED in the Trial Court
When is the judgment in the 1st Action considered ON THE MERITS?
When the claim is ACTUALLY LITIGATED and decided on the merits
Judgment on the pleadings (12(c))
Judgment as a matter of law (50)
Voluntary dismissal WITH prejudice (41(a)); two-voluntary-dismissal rule
Involuntary dismissal (exceptions: court specifies “without prejudice;” dismissal is for failure/inability to
join Rule 19 party)
Default judgment (55)
Summary judgment
Dismissal with prejudice (12(b)(6))
Powder Basin – first action brought by company to recover stolen office equipment; after settlement,
company brought second action for money (unjust enrichment); because both claims arose out of the same
event – the termination of the business relationship between the parties – they were considered
transactionally related; claim for money damages could have been brought at time of first action; SECOND
Thibeault – first action brought to recover personal property; second action to recover for unjust enrichment;
not transactionally related, second claim not barred (no real way to reconcile this decision with Powder
Basin) (marriage case)
ALL parties are subject to claim preclusion; joined parties may not be required to assert a claim, BUT
ONCE a party asserts a claim, the party is REQUIRED to assert ALL other transactionally related
claims against the opposing party
o If a party8 fails to assert a COMPULSORY counterclaim, he is BARRED from asserting this claim
in a later action (they are by definition transactionally related)
United Bilt – res judicata did not bar second action which dealt with issue of foreclosure, since it did not
transactionally relate to issue of first action – disimbursement of insurance proceeds for repair contract
If judgment in 1st action was FINAL, VALID, and ON THE MERITS,
Res Judicata precludes the part who asserted the claim adjudicated in the 1st action from
Re-litigating in the 2nd Action…
1. The SAME claim with SAME evidence, same theory, same relief
2. The SAME claim with NEW evidence, new theory, new relief (if newly discovered – return to 1st court
Or From Asserting NEW claims NOT asserted in 1st action that were Transactionally Related provided:
1. It was PROCEDURALLY PERMISSIBLE to have joined these unasserted claims
2. Proper SMJ, PJ would have existed
3. The unasserted claim had ACCRUED at time of 1st action – claim preclusion is not applicable where the
matters raised in the second suit were not ripe for adjudication in the prior case
Privity (Precluded) v. Persons with Factually Similar Claims (Not Precluded)
If a party similarly situated does not join in first action, he will not be bound by the judgment or barred from
asserting his claim under doctrine of res judicata; BUT stare decisis (opinion on a principle of LAW) may
apply in the second action
Every litigant is entitled to his DAY IN COURT on his claim and CANNOT be bound by an earlier
judgment in terms of either RJ or Collateral Estoppel (issue preclusion) if that person was not a
PARTY to the 1st action or in PRIVITY with a person who was a party to the 1st action
Party can request judge to reserve their right to assert a claim in a later action that would otherwise be
barred by res judicata
It is always best to err on the side of inclusion in the first action and not rely on a later court ruling
that the unasserted claim is not precluded
Collateral Estoppel (Issue Preclusion)
Want to save time if had a full and fair opportunity to ligitate this!!!!!!
Collateral Estoppel will apply if in an initial court case:
o (1) The IDENTICAL issue was FULLY LITIGATED by the party to be bound;
o (2) was ACTUALLY DETERMINED by the court;
o (3) was a VALID and FINAL judgment; AND
o (4) was ESSENTIAL to the judgment rendered
Holtman notes:
 Indivudal capacity, not suing as a representative
 Ex: association
Alternative Determinations – when a party could have won on either issue alone, neither is essential and
therefore not entitled to collateral estoppel
o WHY? - A determination in the alternative may not have been considered as carefully/rigorously
If facts or theory of law is new in the second action, collateral estoppel does NOT apply!
You never get to collateral estoppel unless the entire claim is not barred by res judicata
* In a SECOND court case ONLY the party who ACTUALLY litigated the issue in the FIRST court case
(or a person in PRIVITY with that party) is precluded from re-litigating the issue. A NON-PARTY to
the FIRST action (and NOT in privity with a bound party) is NOT precluded by Collateral Estoppel
from re-litigating an issue from the first action*
(DUE PROCESS; Martin v. Wilks)
In determining whether the issues in the two proceedings are the same, consider:
o (1) Whether substantial overlap exists between the evidence/arguments made in the two actions
o (2) Whether the new evidence/arguments involves the same rule of law as the first action
o (3) Whether pretrial preparation/discovery in the first action could reasonably be expected to have
embraced the matters presented in the second action
o (4) Whether a close relationship exists between the claims in the two proceedings
Issue preclusion operates ONLY when issues determined in an action SUPPORT the judgment
o (ie: if court determines contract was valid, but that D did not breach, the determination that the
contract was valid did not support the judgment – can be relitigated)
Doctrine of Mutuality (ABOLISHED IN FEDERAL COURTS) – either both parties are bound or none are
o Where this doctrine is abolished, nonparty to 1st action may assert collateral estoppel AGAINST
a bound party to the first action (even though bound party cannot assert it against them)
Defensive/Offensive Collateral Estoppel – purely discretionary with the court
Parklane Factors for OFFENSIVE Collateral Estoppel
(Court should weigh these factors – this is VERY fact-sensitive)
1. Could the person seeking to assert offensive collateral estoppel in the 2nd law suit easily have
joined/intervened in the 1st action?
2. Did the party bound by the 1st judgment vigorously defend the particular issue in the 1st law suit?
3. Is the 1st judgment inconsistent with one or more previous judgments in favor of the party to be
4. Are there now procedural or other opportunities in the 2nd suit to that bound party that were not
available in the 1st action that could readily cause a different result?
* These factors are to be weighed AFTER the court has already determined that the 4 general prerequisites for
collateral estoppel are met