Civ Pro Final Outline Notes

Traditional Rule: Plaintiff chooses the forum in which to bring a suit.
The federal removal statutes allow the defendant, after the plaintiff has chosen a state court to "second
guess" that choice by removing some types of cases from the state court to a federal court.
-Both pretrial litigation and trial will take place in the federal court. State court loses jurisdiction
over it.
-Rationale: defendants as well as plaintiffs should have the option to choose fed. Court for cases
within the federal jurisdiction.
1441(a) only authorizes removal of state court actions "of which the district courts of US have OG Jur.
In a diversity case a defendant cannot remove it if the trial is taking place in his home state.
-No need to be protected from local predjudice
-Until 1986: Removal jurisdiction was only proper if the state court had jurisdiction to begin with.
-Now fed court is not precluded from hearing the case simply because state court lacked jurisdiction
over it
1441(a): Can only remove the action to the federal district court for the district and division where the
action is pending in state court. Can't remove it to another district or state or anything.
-Usual federal venue rules do not apply in removed actions. Must be removed to same district even if
that district would not have been a proper venue under 1391
Procedure for removal is in 1446
-Removal statute applies to cases not claims
-Removes entire suit, not only the specific claim that gives rise to removal jur. But also any related
claims that the federal court has the power to hear under supplemental jur.
-Defendant who is properly sued in federal court cannot remove to state court.
-If state court has entered any orders prior to removal, such as an attachment or preliminary injunction,
those orders remain in effect in the federal court.
§1446: Procedure for removal
-Defendant must file a notice of removal in the appropriate federal district court, together with all
-Notice must be filed within thirty days of receiving the plaintiff's pleading in the state suit.
-Plaintiff may move in the federal court to remand the case back to state court if contends SMJ or
improper removal procedure. (must be made within 30 days)
-For SMJ basis of remand, may be made at any time prior to final judgement.
-All defendants must join in the notice for removal.
Personal Jurisdiction
-Def. not from the forum state: need minimum contacts
-International Shoe v. Washington, Supreme Court (1945)
-Defendant who deliberately chooses to take advantage of the "benefits and protections of
the laws" of a state makes sense to be sued in that state.
-Limited in-state contacts only support jurisdiction over claims that arise from those
-Minimum contacts is limited to claims arising from the forum state.
-Casual and isolated contacts not enough.
-Single acts may be enough depending on their quality and nature: Specific
-Burger King Corp v. Rudzewics (1985): Continuous but limited activity in the forum state such as the
ongoing business relationship in this case, will support "specific" in personam jurisdiction.
-Specific (In Personam) Jurisdiction: jurisdiction over claims arising out of the continuous activity.
-If forum state activities of out of state defendant are limited then the defendant is only subject to
jurisdiction for claims arising out of those "minimum contacts".
General ( In Personam) Jurisdiction: Defendant may be sued in the forum state for any claim, even one
completely unrelated to its in-state activities.
-Goodyear Dunlop Tires Opersations, S.A. v. Brown, Supreme Court (2011)
-Good year not subject to general in personam jurisdiction even though several thousands
of their tires were redistributed in North Carolina.
-Continuous sales into the state DOES NOT suffice to support general jurisdiction.
-Dicta: Corporation is subject to general in personam jursidiction in the state where it is
incorporated and the state of its principal place of business. At home in these places.
Kulko v. Superior Court (1978)
-Minimum contacts test applies to individuals as well as corporate defendants.
Burnham v. Superior Court (1990)
-Individuals are only subject to general in personam jurisdiction where they are domiciled.
-Allows Jurisdiction based on in-state service only. Only requires that the defendant be present
in the forum state at the time that the summons and complaint are served upon her. In such
cases, the defendant need not have had ANY contact with that state at the time of the events
giving rise to the suit.
Calder v. Jones (1984)
-If a defendant commits an act outside the state that she knows will cause harmful effects within
the state, she may be subject to minimum contacts jurisdiction there for claims arising out of that
-Defendant subject to personal jur. in CA for defamatory article written in Florida, since article was
circulated in CA, plaintiff lived there, and plaintiff career there.
Purposeful Availment in Minimum contacts (comes from Hanson v. Denckla
-Hanson v. Denckla (1958)
-defendant must have "purposely availed itself of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its laws
-Defendant must have made a DELIBERATE choice to bear the burden of defending there.
-Unilateral contacts of the plaintiff or other third party will not suffice for min. contacts.
-World-Wide Volkswagen v. Woodson (1980)
-Audi dealer had not purposely availed itself of the opportunity to conduct activities in Oklahoma,
even it though it could foresee that its buyers might take its cars there.
-No deliberate focus on Oklahoma. Did not seek any direct benefit from Oklahoma activities
sufficient to require it to submit to jurisdiction there
-Unilateral act of a third party not enough for min contacts for personal jurisdiction.
Keeton v. Hustler Magazine, Inc. (1984) (contrast to World-wide volks)
-Defendant, Hustler, purposely availed itself of the opportunity to engage in in-state activities by
distributing its magazines within the state. Plaintiff's claim arose out of those contacts, forum state had
jurisdiction even though defendant's acts had greater impact in other states and plaintiff had few
contacts with forum states
-If magazine is circulated around all 50 states then specific in personam jurisdiction in all 50 states.
Asahi Metal Industry Co. v. Superior Court (1987)
-Defendant's goods reached forum state through "stream of commerce"
-Asahi did not import the product into the forum state themselves; Although may know that such
resales take place in the state and may think it is highly likely that they would.
Challenges to Personal Jurisdiction
Direct Attack:
State Citizenship for diversity jurisdiction under §1332c(1):
-Hertz corp. v. Friend, Supreme Court (2010)
-"never center test" for principal place of business.
12(b) 2- special appearance for only personal jursidiciton
12(b) 6- defendant moves to dismiss for lack of PJ and at the same time for vailue to state a claim upon
which relief can be granted.
Long Arm Statutes
-Enumerated Act statutes: Require that the claim sued upon arise out of the act itself.
-CA has statute that says as long as constitutional we allow it.
Constitutionality: Due Process Clause of 14th amendment:
-Only jurisdiction over defendants who have established a significant relationship to the forum
state, such as domicile, in state presence, incorporation or principal place of business within the
state, consent to a suit in that state, or minimum contacts with the state that gave rise to the
claim in the suit.
Two-Step analysis for personal jurisdiction :
1. Long Arm Statute
2. Constitutional
Subject Matter Jurisdiction: State or Federal Court
State Courts: General SM jurisdiction: May hear a wide variety of cases
Federal Courts have limited SMJ
-Defined by Article III §2
-Fed courts authorized to hear cases between states, between citizens of diff. states,
between citizens and aliens…cases ARISING UNDER the federal Constitution and federal
Osborn v. Bank of the United States (1824)
-Interprets article II arising under language and takes an expansive view
-"Ingredient test": when a question to which the judicial power of the Union is extending by the
constitution, forms an ingredient of the original cause, it is in the power of congress to give [the
lower federal courts] jurisdiction of that cause, although other questions of fact or law may be
involved in it.
-Article III doesn't discuss district courts. Must look to §1331.
-Also uses "arising under language" but interprets narrower.
-1331 only applies if the PLAINTIFF's claim requires proof of federal law.
Louisville & Nashville R.R. v. Mottley (1908)
-Sued for breach of contract, a state law cause of action.
-The federal statute they mentioned in their complaint would arise as a defense, and was not an
element of the plaintiff's claim in chief.
-Although passed Osborn ingredient test, not pass arising under test for 1331
-Mottley, "Well-pleaded complaint" rule: To decide if case arises under federal law for purposes
of 1331, must ask whether the plaintiff would have to raise the federal issue in a complaint that
includes the elements she needs to prove to establish her claim and only those elements.
-NOT from anticipated defenses.
-Still law today.
American Well Works v. Layne (1916)
-Holmes "CREATION TEST": To determine when Mottley's rule is met. A suit arises under the law
that creates the cause of action.
-The plaintiff's enforceable legal right against the defendant must be federal law.
-In Mottley is was state contract law.
-May still have SMJ when fed law does not create right to sue. (unlike Holmes test). Must turn on a
substantial federal issue.
Smith v. Kansas City Title and Trust Company (1920)
-Plaintiffs sued to enjoin the corporation from exceeding its powers under state corporation law
(does not satisfy HOLMES test)
-But plaintiffs could not prove state law claim without establishing a proposition of federal law.
-The federal issue was embedded in the state law claim and essential to its resolution.
-Satisfied arising-under jur. since "the controversy concerns the constituional validity of an act of
Congress which is directly drawn in question. The decision depends upon the determination of this
Merrell Dow Pharmaceuticals Inc. v. Thompson (1986)
-Sued for negligence (state law) and intended to prove it because company did not comply with
-Court held that would go against congress because they didn't include right to sue for damages
for FDCA violations.
-Resembled Smith but court went other direction.
As explained by Grable:
-Recognizing fed jur here would have "attracted a horde of orginal filings and removed cases
raising other state claims with embedded federal issues.
-Claims not sufficiently substantial.
-Not rejection of Smith
Grable & Sons' Metal Products Inc. v. Darue Engineering and Manufacturing (2005)
-Federal courght ought to be able to hear claims recognized under state law that nonetheless turn
on substantial questions of federal law.
-The embedded federal issue must be substantial to support jurisdiction and delicate judgments
will have to be made about the importance of the federal issue and danger of opening federal
courts to an excessive number of claims.
-The question is, does a state-law claim necessarily raise a stated federal issue, ACTUALLY
DISPUTED AND SUBSTANTIAL, which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities
Rule: Q of fed. Law must be
1. Substantial
2. In dispute
3. Not disturb balance of federal and state judicial responsibilities.
Gunn v. Minton (2013)
-Applied Grable test
Diversity Jurisdiction
1. Complete diversity of citizenship
2. Amount-in-Controversy requirement (Over 75,000)
a. St. Paul Mercury Indemnity Co. v. Red Cab (1938)
Rule: A plaintiff's good faith claim for more than the amount required controls unless
it "appears to a LEGAL CERTAINTY that the claim is really for less."
Heavily weighed toward plaintiff. Only not satisfied when judge concludes to a legal
certainty that the plaintiff could only be awarded less than AIC requirement.
When there is a legit debate as to whether jury will award that much , the
requirement is satisfied.
Still hard to keep intangible damages out of fed court because hard to conclude what
recovery might be (emotional distress, pain and suffering)
b. Aggregation of Claims to Meet the Amount in Controversy requirement
When a single plaintiff asserts two or more claims against a single defendant, the
amounts may be added together to reach the required amount
Single plaintiff may NOT aggregate amounts sought from different defendants.
1. Even if amount is met for one def. can't just bootstrap the insufficient claim
onto the other.
Plaintiffs may not add their claims together to meet the amount requirement when
neither party meets the amount requirement
c. Exxon Mobil Corporation v. Allapattah Services Inc. (2005)
When one plaintiff satisfies the amount requirement and another does not.
Court held that the federal court has SUPPLEMENTAL JURISDICTION over the
unsatisfied claim
ONLY in a case against a single defendant
Rule: As long as one plaintiff asserts a claim that satisfies the amount requirement,
others may join as co-plaintiffs even though they are seeking less.
d. BUT: Can't do the opposite when you have one plaintiff and multiple defendants and meets
AIC for one and not another. Can't just add defendant in.
Personal Jurisdiction in Federal Courts (aka FRCP 4(k)(1)) Federal Long arm statutes or borrow state
one. Also must test for constitutionality: same as state (min contacts) and if borrow still must be
-Not under 14th amendment (only applies to state)
-Limited under Fifth amendment!
-Defendant need only have an appropriate relationship to the United States as a whole-Such
as domiciled in the US or having minimum contacts here that give rise to the claim.
-Congress has the power to authorize Federal courts to exercise nationwide jurisdiction.
-Requires parties with contacts anywhere in the US to respond to suits brought in any
federal court.
-In some types of actions congress has authorized nationwide jur.
-Must have special jurisdictional provision for this!!!!!!!!
-FRCP 4(k)(1)(A):
-Federal court is authorized to exercise jurisdiction over a defendant "who is subject to the
jurisdiction of a court of general jurisdiction in the state where the district court is located."
-Federal court may exercise personal jurisdiction only to the extent it could be exercised
by the courts of the state in which the federal court sits.
Supplemental Jurisdiction (§1367)
Originally: Pendent Jurisdiction and Ancillary jurisdiction
Pendent: Appended to what plaintiff did (Gibbs)
-Generally involved a plaintiff asserted a jurisdictionally proper claim against a non-diverse party
and added on a related state law claim (common nucleus of operative fact) Art III test.
-Pendent claim.
United Mine Workers v. Gibbs (1966)
-2 claims, one fed and one state
-No diversity of parties (so needed fed Q jur)
-Court ruled federal court had pendent jurisdiction over the state law claim because state law
claim was very related. (common nucleus of operative fact)
-Article III grants Jur. over entire cases not just over particular claims or issues in the case.
-Fed courts have power to hear claims that arose from the same nucleus of operative fact.
-Did not require the court to hear the related claims however.
-Impleader doesn't destroy diversity.
Moore v. New York Cotton Exchange (1926)
Aldinger v. Howard (1976)
Owen Equipment & Erection Co. v. Kroger (1978)
Finley v. United States (1989)
Pendent and Ancillary jurisdiction become combined into "Supplemental Jurisdiction" under §1367.
Ancillary: Something defendant does-impleader, counterclaim, etc.
Erie Doctrine Barbri Notes
-Rules Enabling Act (REA) 28 USC § 2072: Authorized supreme court to create FRCP.
RDA 1652: Go with state law.
When it comes up: In federal court in Diversity Jurisdiction
Question: In deciding an issue, must federal judge apply state law or ignore state law?
1938 Erie Railroad v. tompkins: In diversity cases a federal court must apply state substantive law
If substantive law then use state law
1652: Rules of Decision act: in these cases fed court must apply state law on substantive matters.
10th Amendment: Powers not given to fed gov are retained by the states
Hanna vs. Plumer 1965 Case:
Hanna Doctrine vs. Erie Doctrine (two prongs of erie)
Hanna Prong of the analysis:
First Question: Is there a federal provision on point that directly conflicts with state law? (on the
If yes, then we apply federal law as long as it is valid
-Under supremacy clause of constitution. A federal directive on point then it wins.
Could be statute, constitutional, or federal rule of civil procedure.
How to determine of Rule is valid: Rules Enabling Act
-Federal laws are valid if they do not modify substantive right. (arguably procedural)
They're all arguably procedural. Supreme Ct. Has never held one invalid under REA.
Shady Grove:
Stevens wants stricter test for validity.
Is there a federal directive? (Hanna Prong)
Section B: Erie Prong (When no federal provision on point)
Federal judge must apply state law on matters of substance.
Don't have to follow state law if not substantive
What counts as substantive? (Supreme Court has been unclear)
-3 Famous phrases from 3 famous cases.
Unsure how they relate and apply together. Apply all three and come to conclusion
1. Outcome Determinative (guaranty trust v. York)
a. Statute of Limitations ran. (No fed statute of limitations)
b. Federal judge wanted to ignore state law (fed. Diversity case)
c. Ruled: Must apply state law for SOL (SOL is substantive issue
Substantive because outcome determinative.
1. If use state law then case is dismissed, if ignore state law then case proceeds.
Aka a different result occurs.
2. Don't want different results.
But Seems like everything is outcome determinative. But court never expressly
overturned it
2. Federal Interest
a. Bird v. Blueridge
Diversity case, where state law was to not use jury, but have judge decide.
Court must look to see if allocation of power between judge and jury is substantive.
Ruled: If a rule is not clearly substnative, the federal court should apply state law,
even though not clearly substantive..UNLESS the federal court system has interest in
doing it differently
Seems like a housekeeping matter, but Fed. Ct. had interest in allowing jury to decide
questions of fact in this case.
The court has never applied this since this case. But not overturned
3. Twin Aims of Erie (Hanna v. Plumer)
a. Avoid Forum Shopping
b. Avoid the inequitable administration of law.
Test: On outset of case ask:
1. if the federal judge ignores this state law, will it cause parties flock to the
federal court. (forum shopping. Don't want forum shopping. Unfair)
Three Tests:
Federal Interest
Twin Aims of Erie
Freer: Account for those three tests and come to reasonable conclusion.
Section C: Hypos
Hypo 1: Shady Grove Case
Fed Ct. Diversity Case (Class action)
Federal Rule 23 would allow class action.
But state law says plaintiffs cannot proceed in class action in this kind of claim.
Start with Hanna Prong!
Is there a federal provision on point that directly clashes with state law
Yes Federal Rule 23.
Apply federal directive as long as valid. Under REA, is it arguably procedural? Yes!
Rule 23 was upheld in shady grove. Yes valid.
Not an Erie Problem but a Hanna Problem.
Hypo 2
State x. Legislature wants to lower healthcare costs. Med Mal litigation statute in state that says
when P sues for Med Mal, before trial, must go to arbitration. Plaintiff's don't like arbitration.
Want jury. After arbitration can go to trial, but jury will be told about arbitration result.
Citizen of state y, goes to state x and claims malpractice. Diversity case for Medical Malpractice. Must
you apply state arbitration rule or can you ignore rule?
Hanna Prong: No federal rule on point
Pure Erie Question: Apply three tests
Outcome Determinative: Unclear
Balance of interest: Here state has big interest in rule. State interest weighs a lot.
Fed interest? Not really. Just delaying jury. Diff than Bird. Weighs in favor of state law.
Twin Aims:
-If fed judge ignores state law, will it cause parties to flock to federal court? YES every
plaintiff will want to go to fed ct. (forum shop) because wants jury
-Will result in inequitable administration of law: state x plaintiff's cannot get away from
arbitration agreement. State x plaintiff can't go to fed. Court.
Because of Twin Aims: Courts will likely go with state law.
Pleadings and Motions Barbri Lecture
Notice Pleadings: Just want to give notice to otherside historically.
Now under Twiqbal, require more detail.
Section A: Rule 11
Avoid frivolous documents in our litigation.
Applies to all pleadings and documents, except discovery documents.
Requires attorney to sign these documents: Certification Rule 11(b)
-Certify to court that made reasonable inquiry and doc is not:
1. For improper purpose
2. That legal contentions are warranted (There is a law that backs up your point or argue law
should be changed.)
3. That factual contentions will have evidentiary support or will likely have evidentiary
4. That denials of factual contentions will also have evidentiary support or are likely to after
reasonable investigation.
Three procedural points in Rule 11
1. This certification is effective every time you advocate a position from that document. Continuing
certification. Can no longer continue to advocate for something that has become untenable
2. Sanctions for violation of Rule 11 are discretionary. Not required. Purpose of the sanctions is not
to punish but deter.
3. A motion for sanctions cannot be filed right away. If other side violates rule 11 (if they have
baseless claim etc) you can write motion and serve it on other party. Must give 21 days to fix the
problem. Safe Harbor Period. If prob still not fixed then can file motion.
Section B: Complaint Federal rule 8(a)
Plaintiff files complaint and this is what starts case.
A complaint must have three things:
1. Statement of SMJ: fed. Courts can only hear certain cases
2. A short and plain statement of the claim
3. A demand for relief (damages, injunction, etc)
Short and Plain statement
-Historically fed cts use notice pleading. Not a lot of detail necessary. Just need to put def. on
Twombly (2007)
Iqbal (2009)
Together Twiqbal:
Plaintiff must plead facts supporting a plausible claim.
Rule 8(a)(2) does not contain word fact or plausible, but this is the standard according to court.
How does court apply Twiqbal:
Three Rules
1. The court, when looking at a complaint, ignores conclusions of law and focuses only on
alleged facts.
i. Defs conspired: Legal conclusion
2. Those facts must support a plausible claim, not just a possible claim.
3. To determine plausibility, the judge uses her own experience and common sense. (very
Situations where complaint requires even greater detail: Rules 9(b) and 9(g) Heightened pleading
-With Particularity!
Go beyond detail of twiqbal
Fraud: Plaintiff alleges def. defrauded me. The circumstances of fraud must be stated with particularity.
Special Damages
Section C: Defendant's Response Federal Rule 12
Gives def. a choice: Can respond by motion or answer
Timing: General rule:
Must respond no later than 21 days after served with process.
Special Rule if Def waived Service of Process under Rule 4(d). Fill out waiver form that plaintiff sends.
-If def. waived formal service, then have 60 days from date plaintiff mailed waiver form.
Motion vs. Answer:
-Motions are not pleadings.
-Answers are pleadings.
-Request for a court order. Make a motion or move.
Under Federal Rule 12
-12(e)- Motion for a more definite statement (complaint unitelligable)
-12(f)- Motion to Strike
Can be brought by any party. Ask court to strike things from pleadings. Scandelous
-12(b): Provides 7 defenses
-Motion to dismiss based on any of the 7 defenses
-Defenses may be in motion to dismiss OR put in your answer as affirmative defense.
12(b) defenses
1. Subject Matter Jurisdiction
2. Personal Jurisdiction
3. Improper Venue
4. Improper Process (summons and copy of complaint)
5. Improper Service of Process
6. Failure to State a Claim upon which relief can be granted
7. Failure to Join an indispensable party under Rule 19.
Rule 12(g) and 12(h)
-3 Rules
1. 12(b)(2), 12(b)(3), 12(b)(4), 12(b)(5) must be put in your FIRST rule 12 response!
i. Or else waived. (waivable defenses
2. 12(b)(6) and 12(b)(7) can be raised for the first time any time through trial.
i. Do not have to be in first response.
3. 12(b)(1) is NEVER waived. Can be raised anytime (even on appeal) SMJ is never waived.
i. Reason: Fed courts are limited jur.
Plaintiff sues. Def makes first 12(b) response and makes it a motion. Def. moves to dismiss under
Court denies motion.
Def files answer: There is no PJ and Venue is improper
Can't do this. Def waived these defenses because not in first rule 12 response.
Is a pleading.
When you get sued may answer instead of motion.
Or can make a motion, if its denied then must give answer within 14 days after motion was
2 Things in Answer
1. Rule 8(b): Must respond to complaint. Go line by line and respond
i. Three ways to respond to items in complaint.
1. Admit
2. Deny
3. Rule 8(b)(5) I don't know. Lack sufficient info to admit or deny.
ii. Failure to Deny constitutes an admission on any allegation except damages.
Saying IDK is treated as a denial. If fail to deny then admit
EX: P alleges D was intoxicated while driving. Def. files an answer and says plaintiff has no
proof I was intoxicated. Def. admitted intox. Because never denied. If you cant to deny, then
MUST state the word DENY.
2. Raise Affirmative Defenses: Rule 8(c )
1. 8(c )(1) has long non-exclusive list of possible affirmative defenses.
Different than denials.
Here you are raising a new fact. And If right you win
1. Statute of Limitations
2. Statute of Frauds
Must Plead Affirmative Defenses (put in answer) or else WAIVED.
Section D: Amended and Supplemental Pleadings (Liberal Federal Rules)
Amend pretty freely. Want cases to be decided on the merits
Amendment Question: 3 Steps: RULE 15(a), 15(b), 15(c )
1. Does 15(a) apply?
1. Plaintiff has a right to amend within 21 days after defendant served first rule 12 response.
2. Defendant has right to amend once within 21 days of serving her answer.
3. If no longer have right to amend, just ask for court permission (leave to amend). Courts are
usually pretty liberal, unless it will prejudice.
2. 15(b): Variance: Where evidence at trial does not match what was pleaded. Variance can only
come up at trial. At Trial someone is trying to put up evidence that goes beyond what is pleaded.
1. Whenever you have variance:
Other party will object to the variance
1. If object, then the evidence is not admissible
Or other party will not object
1. If no objection, then just act as though it was pleaded. Can amend pleading to
conform to evidence.
15(b)(1): Party trying to put up evidence may ask for permission to amend to add new
3. 15(c ): Amendment after statute of limitations has run (Relation Back.) Beck v. Aquaslide
1. Amend to add a claim
2. Amend to change the defendant
Relation back: way around statute of limitations
Treat the amendment as though it was filed when OG case was filed.
Ex: P files on July 1. SOL runs on July 10
In August (after SOL ran) P moves to amend to add a claim.
15(c )(1)(B): Can get relation back if the new claim arises from same conduct, transaction
or occurrence as the original complaint, then it relates back.
Amending to change Defendant: Rule 15(c )(1)(C )
Shortcut: Only works when changing the defendant, IF we sued the wrong defendant first and
the right defendant knew about it.
July 1: Slip and Fall and sue Sam store incorp. Wrong Def. Should have sued sam Co limited.
Want to amend to sam co limited. Yes it will relate back.
15(d): Supplemental Pleadings
-When you want to add something that happened after the case was filed. Want to add something
and that something happened after the case was filed.
Ex: P uses D for breach of contract. During Trial D punches P at party. P wants to add tort
claim to case. Not amended because tort claim occurred after filing. Must ask for permission
to file supplemental pleading
-Never a right to a supplemental pleading (must ask), but court usually liberal in granting.
9(g) Special Damages: If an item of special damages is claimed, it must be specifically stated.
54(c) Prayer for relief can’t be jacked up in summary judgment.
12(b) Motions: Pre-Answer (21 days to file after service of process)
12(c) Judgment on the pleadings: After answer! (pre-discovery)
56: Summary Judgment: anytime until 30 days after discovery.
Joinder (and the Need for SMJ) Barbri Lecture
Joinder Rules determine Scope of Litigation
How many parties and claims can be packaged in a single case.
Knowing Joinder Rules is not enough. Must remember Subject Matter Jurisdiction.
Every single claim in federal court must have a basis of SMJ
2 Step Process
-What is joinder rule?
-Is there SMJ over claims?
Section A: Proper Parties Rule 20(a)
Who MAY be joined (not must)
-Rule 20(a) is a tool available to plaintiff when drafting complaint. Can join multiple plaintiffs or
multiple defendants
-Not required, but can do this.
Rule 20(a)(1): Joinder of Plaintiffs
-Claims must arise out of same transaction or occurrence
-Claims raise at least one common question.
Rule 20(a)(2): Joinder of Defendants
Same test as Plaintiffs.
-Claims must arise out of same T/O
-Raise at least one common question.
To get case in Federal Court: SMJ (diversity or fed q)
Section B: Necessary and Indispensable Parties: Rule 19
-The case has been filed and the case is pending. In structuring the case, the plaintiff left someone
out. Absentee party. Non party-A. Sometimes a court will force absentee into case. We do that
because Absentee is necessary. (now under rule: Required)
Rule 19: 3 steps
1. Is A necessary?
a. Yes, A is necessary if we meet any of the tests in Rule 19(a)(1)
19(a)(1): 3 tests to see if A is necessary.
1. 19(a)(1)(A): Without A the court cannot accord complete relief among parties.
a. Efficiency.
2. 19(a)(1)(B)(i): A's interest may be harmed if she is not joined.
a. Focus on the Absentee herself.
3. 19(a)(1)(B)(ii): Absentee's interest may subject defendant to multiple or
inconsistent obligations.
a. Focus on the defendant.
b. If A isn't brought in then Defendant could be hurt by multiple or
inconsistent obligations.
If any of these tests are met then court may order joinder of absentee party
Joint Tortfeasors are not necessary!!
Ex: You own 1000 shares of stock in XYZ corp. Freer comes along and claims you two
bought stock jointly. And he paid for half. He sues XYZ and asks court for order
cancelling my stock. I am absenttee. Are you necessary
1. Arguably yes. Can't accord relief
2. Yes! My interests will be harmed if not brought in. my stock would be canceled.
3. Yes, If I'm not brought in, def. might be subject to multiple or inconsistent
obligations. I'm gonna make another suit and If I win they will have to give me
stock back.
2. Is Joinder of the Absentee Feasible?
a. Feasible if Personal Jurisdiction over A.
b. If bringing in A does not mess up Diversity Jurisdiction.
3. When joinder of A is not feasible Rule 19(b)
a. Either Proceed without A
b. Or Dismiss the entire case.
Rule 19(b) provides factors to determine whether to do A or B
Usually court will not dismiss unless alternative court where plaintiff can bring case.
c. If court decides to dismiss, we call A indispensable. 12(b)(7) Dismissal for indispensable
The term indispensable comes from when court dismisses case because A could not
be joined.
Section C: Claim joinder by plaintiff
Rule 18(a)
Plaintiff can assert any claims he has. Do not have to be transactionally or legally related.
-Don't have to assert these claims, but you can.
Remember: Must make sure you have subject matter jurisdiction.
Diversity Jur:
-Can aggregate claims to get amount in controversy. (even if not related)
Section D: Claim Joinder by the Defendant
-Defendant can assert claims
2 Claims
Counterclaim: Rule 13(a) and 13(b)
-A claim against an opposing party.
-Against someone who has sued you
-Usually by defendant against plaintiff
-Filed with answer (put in answer)
2 kinds of counterclaims
1. Compulsory Counterclaim 13(a)(1)
A. Arises from the same transaction or occurrence as the plaintiff's claim
B. You must assert it in this case or else you waive the claim.
If you do not assert it in THE PENDING case, it will be waived
1. Can't assert in future case.
2. Permissive Counterclaim 13(b)
A. Does not arise from same transaction or occurrence as plaintiff's claim
B. May assert it or you can assert in a later case.
Remember to assess SMJ
Try to see if the claim can get in through diversity or Fed Q
If not, then try to get claim in through supplemental Jurisdiction
Crossclaim Rule 13(g)
A claim against a co-party, not an opposing party
Must arise from same transaction or occurrence as underlying case.
Crossclaims are NEVER compulsory
-Co-party occurs when plaintiff joins multiple plaintiffs or defendants under rule 20.
-Only way to have crossclaim is when plaintiff used rule 20 to have multiple parties on a side.
-3 way car accident
P (AZ)-----------------> D1 (NY) ^
^ (Crossclaim (permissive))
<----------------------- D2 (NY) ^
Under rule 20(a)(2) can have multiple defendants because the claims against them arise from same
transaction or occurrence and raise at least one common question
Every claim for over 75k. Purely state law COA
Case in fed court because diversity jur.
I represent D2. What claims might D2 file in this case
1. D2 should file a compulsory counterclaim against plaintiff. (same trans./ occur)
A. SMJ over compulsory counterclaim?
Not under fed q
Diversity of citizenship? YES claim by NY against AZ and exceeds 75K
2. D2 MAY file a cross claim against D1. D1 and D2 are co-parties (same trans./Occur.)
A. SMJ over the cross claim?
No fed q
Div jur? NO, by a New Yorker against a New Yorker
So try Supplemental Jurisdiction!!!
Allows fed. Court to hear non federal, non diversity claim
Does 1367(a) grant Supp Jur over this claim?
YES, if it comes from a CNOF.
CNOF test met if comes from same Trans/Occur.
1367(a) always met for cross claims!
Does 1367(b) take away supp jur?
Applies only in diversity cases. (So it is relevant here)
-1367(b) takes away supp jur. in div. cases but only over claims by the
-This is a claim by defendant.
Therefore, supplemental jurisdiction okay.
For Any claim:
1. Does that claim by itself invoke fed. Q or div. of citizenship?
2. If no, then try to get supplemental jurisdiction. 1367(a).
i. Yes if from CNOF (Gibbs)
3. Does 1367(b) take it away?
i. Diversity cases
ii. In certain claims by plaintiffs.
Section E: Impleader, Rule 14 (3rd party practice)
-A defending party, joins a new party (A third party defendant)
-Hint: If a claim starts with a letter C, it is a claim between existing parties.
Counterclaim, cross-claim
If it starts with the letter I, we are joining someone new!
Standard for Impleader:
Implead 3rd party because TPD may be liable to you, the defendant, for the plaintiff's claim
against you.
-If you have to pay a judgment to the plaintiff (if you lose), you say wait I shouldn't pay the
whole judgment. Someone should contribute to it or pick up tab entirely
TPD is liable to defendant or plaintiff's claim against you.
2 ways it could come up
-Claim for indemnity or contribution.
Indemnity (entirely)
Partially (contribution)
Joint Tortfeasors
Third Party Def. (brought in because owes contribution to def.)
P--------> D (one of two joint tortfeasors, P decides to sue only one of them.)
Plaintiff asserts a claim against
-D: if I lose I shouldn't have to pay entire judgment
-Gen rule: joint tortfeasors owe contribution.
Because it’s a new party, it’s an impleader. Not co parties, bringing TPD in
Rule 14: other claims can be asserted after join TPD
-Plaintiff can assert a claim up against the TPD 14(a)(3)
-If arises under same transaction or occurrence.
TPD can assert a claim against plaintiff 14(a)(2)(D)
If arises out of same Trans/occurrence
Every single one of the claims must be assessed for SMJ
Section F: Class Action Rule 23
What does it take to get Certified
1. Sufficiently definable class. In complaint with some degree of precision identify who is in class.
Must know exactly who is in it and who's not in it. Don't have to know identities but can tell if
someone who is inside or outside of class. Don't have to prove they're in the class. If you testify
and judge agrees. Testimony enough for proving.
2. Have to have a named party that is part of the class (class representative). Attorney can't just file
on their own. Have to find someone that is part of the class. Usually have to do something. Can't
be lawyer and class representative. Have to be independent to lawyer. At least one, but you can
have more than one. Usually 3 or 4. Defendant can go to particular named plaintiff, and give
named plaintiffs bigger settlement if they drop class action.
3. Numerosity Requirement. Class must be sufficiently large that using regular joinder rules would
be impracticable. Have to have so many plaintiffs that regular joinder rules would just be a mess.
At minimum like 25, 40 to 100. If 100 people die in a plane crash, joinder is not impracticable.
Joinder is preferred remedy.
4. Commonality: The actions have to raise law or fact common to the class. Just have to have one.
Does asbestos cause cancer? Or legal question. Just need one common question, but it has to link
every one up. Usually not an issue because CNOF.
5. Typicality Requirement. Plaintiff's claims must be typical of the class. Same thing must have
happened to named plaintiff that happened to all unnamed plaintiffs. Doesn't have to be exactly
the same. Just have to be discriminated against in the same way for example. Sufficiently typical
so proving named plaintiff's case will prove unnamed plaintiff's case. Must be typical for every
member of the class. Sometimes subclasses with different named plaintiffs to represent them.
Example: asbestos causes asbestosis, brain cancer and lung cancer. Must have named plaintiff in
each of these categories.
6. Named Representative (and their attorney) must adequately represent the class. Can't be
something the named plaintiff wants that the rest of the class doesn't want. Sometimes named
plaintiff wants diametrically opposed things. Class conflict ex: pregnant flight attendants fired.
Some flight attendants wouldn't get pregnant and others liked that some would get fired so they
could move up. Also, attorney must be competent and financially capable (usually 1 mill in out of
pocket costs). And ethical and knowledgeable. Must present that evidence in front of judge.
7. Have to meet requirements for type of class action you are certifying.
a. Three types:
(b)(1): prejudice class actions. It would prejudice the individual members of the class
or non class members to bring lawsuits individually. EX: Bankruptcy. Later litigators
(class members) can't get funds because defendant went bankrupt. Only do these
when there is an attorney fees provision.
(b)(2): Special declaratory or Injunctive Relief: ex: stop dumping chemicals in stream.
(b)(3): Damages. Want money. Much harder to get certified, but actually pay a lot.
1. Two separate requirements. (When no prejudice)
a. Predominance. That your common questions predominate over individual
b. Superiority: Class action must be better than any other type of action.
Common to ask for injunctive relief and damages.
Walmart: anytime you request a non-trivial amount of damages, you have to meet the (b)(3) rules.
No longer predominance (go with whatever claim predominates).
-Notice: Type of notice you have to give depends on what type of class action.
-Notice optional for (b)(1) and (b)(2) claims. (usually no notice) And can't opt out.
-(b)(3): Must give notice and must be able to opt out. Must give best practicable notice.
-Must affirmatively do something to opt out or else you're in.
A representative sues on behalf of a group.
7 Things need to know
1. Prerequisites Rule 23(a)
1. In every class action must show 4 things
Too numerous for practical joinder (rule 20). (numerosity)
Some question in common to all the class members (commonality)
1. Got tougher in Walmart case in 2011: Court held that there was no commonality
among a class of 1.5 million plaintiffs who alleged sex discrim. No commonality
because discriminated against in different acts of discrimination. No single
course of discrim against all of them. When looking at commonality what you're
really looking at is common answers. Want to litigate issues that will decide
things for every class member at once.
Reps. Claim must be typical of those of class members
Rep. will adequately represent interests of the class.
2. Types of Class 23(b)
1. B(1), b(2), and b(3)
B(3) Most likely!
1. Usually called a damages class action. Must show: 1) that common
questions predominate over individual questions. And 2) the class action
is the superior way to resolve the dispute. (Ex. Mass tort).
2. Better to have one action that clogging up court system
3. Case is not a class action until court certifies it as such.
1. Plaintiff will file complaint that says class action, but not a class action until court certifies it.
Rep will make a motion to certify the class. If granted then class action
2. If court grants action to certify, Under 23(g), court must appoint class counsel
4. Notice of Pendency
3. Rule 23(c ) must tell members that they can opt out of class and will be BOUND if do not opt
4. Representative pays for notice.
5. Who is bound by a class judgment
1. All members except those who opt out of a b(3) class.
2. THERE IS NO RIGHT TO OPT OUT OF A b(1) or a b(2)
6. Settlement or dismissal of a certified class must be approved by the court 23(e)
7. Subject Matter Jurisdiction
1. Federal Question Jurisdiction
2. Diversity Jurisdiction
Citizenship: Look only at the rep, not the class members. Rep must be diverse from all
the defendants
Amount in Controversy: Look at if rep's claim exceeds $75K (Alipata)
1. Other class members come in supplemental jur.
Barbri- Venue
SMJ: We can go in federal court
Venue: exactly which federal court we go to. Which district.
Section A: The General Rules
1391(b)(1) and 1391(b)(2):
Gives plaintiff two choices:
1. Any district where ALL defendants reside
Subrule: If all defendants reside in the forum state (state where filed), then we may lay
venue where any one of the defendants reside.
-Resides(not citizenship): defined by statute. Your residence is the district in which
you are domiciled. People only have one domicile.
-Businesses: By statute a business resides in ALL districts where it is subject to
personal jurisdiction for this case.
2. Any district where a substantial part of the claim arose.
-Almost never applies. Only applies when there is no district anywhere in the united states of
America that will meet either of the above choices.
-Only works if claim occurred almost 100% overseas.
-These rules to not apply to cases removed from state court to federal court. Only applies when plaintiff
files initially in federal court.
-With removal, can only remove to federal district that geographically embraced state where claim
was initially filed.
Section B: Transfer of Venue
-Transfer must be within courts of the same judicial system.
-One federal district court to another federal district court.
-Transfer can cross state lines.
-Can never transfer from state court to state court (different systems).
-The original federal district: Transferor
-District to which we transfer: Transferee
-Can only transfer if the transferor court grants a motion to transfer and sends case to transferee court.
-Two Transfer Statutes:
1. 1404(a)
2. 1406(a)
1. Under both of these statutes, the transferee must be a:
Proper Venue
Have Personal jurisdiction over the Defendant
1. Must be true without waiver by the defendant (Hoffman v. Blaski)
a. But 1404 says you can transfer to any venue if all the parties agree and
the court thinks that transfers is a good idea.
Plaintiff will never agree though because plaintiff doesn't want to
give up forum in which she initially sued so don't worry about it.
-Must know transfer and venue and PJ
Difference between 1404(a) and 1406(a)
1. In 1404(a) the transferor court is a proper venue.
1. May transfer to another district based on convenience of the parties and witnesses and in
the interest of justice.
The transferee court makes more sense. Where all witnesses are, where all events
took place. Just makes more sense to litigate there
Courts have enormous discretion.
Look at public and private factors to determine if transferee court in center of gravity
1. Public Factors:
a. Which court ought to be burdened for this case
b. Makes more sense to have case in transferee court for the administration
of justice because that state's law is going to be applied anyway.
2. Private Factors:
a. Where are the witnesses.
b. Where is the evidence.
Atlantic Marine Case:
-Forum Selection Clause.
-The court said that a forum selection clause is a very important factor in ruling on a 1404(a)
-The existence of the forum selection clause is very persuasive.
-Courts usually enforce a forum selection clause.
-Applies when the transferor court is an IMPROPER venue
-Gives the court a choice:
-May transfer in the interest of justice
-May dismiss.
Section C: Forum Non Conveniens
-A court DISMISSES a case because there is another court that makes a lot more sense.
-We do not transfer, we DISMISS.
We dismiss because transfer is impossible.
-The better court (center of gravity/ more convenient court) is in a different judicial system.
-Cannot transfer to different judicial system.
Comes up mostly when the better court is in a FOREIGN COUNTRY
Ex: Piper Aircraft v. Reyno
-Plane crash in Scotland
-All Scottish citizens and Scottish pilot
-But manufacturer in Penn
-Supreme court says dismiss and let plaintiff sue in Scotland
Court looks at exactly same public and private factors that they look at in ruling in a 1404(a) transfer
Footnote 6 of Piper:
-Classic list of public and private factors.
-Must be very strong showing!!! Stronger than transfer.
-Crucial that the foreign court be available and adequate!
-Don't dismiss if leaves plaintiff with no courtroom at all.
Adequate: Does not mean that you will recover same kind of remedies.
Just means that plaintiff will get day in court and be heard.
-Fact that foreign country may not allow same damages or jury trial does not matter. Does
not make it inadequate.
Courts often place conditions on forum non conveniens dismissals.
-Tell defendant must waive certain defenses in the foreign country in exchange for dismissal:
-SOL, PJ or other defense
Section A: Pre-Trial
-Decide who wins and who loses without going to trial.
-Dismiss case because no PJ or SMJ or Venue
-Voluntary dismissal by plaintiff under 41(a)
-Default under rule 55
Two most important motions: Rule 12(b)(6) and Summary Judgment Rule 56
-Motion to dismiss for failure to state a claim.
Does this claim belong in litigation stream at all?
The court does not look at evidence!
-Looks at the face of the complaint.
Test: Twiqbal (Look at the pleading)
-3 Rules:
-The court ignores conclusions of law and looks only at allegations of fact.
-The facts alleged must support a plausible claim. (not just possible)
-To determine plausibility, the judge uses her own experience and commonsense.
(Plausibility is a subjective standard.
-Often when a court grants a 12b6 motion it will give plaintiff a second chance
-Leave to amend or dismiss without prejudice
-At some point will dismiss with prejudice though.
Motion for Summary Judgment: Rule 56
If moving party meets stage 1 burden and nonmoving party meets stage 2 burden
then beats SJ.
Moving Party: Stage 1 burden (only looking at one sides evidence)
Stage 2 burden: Looking at both sides of evidence after non-moving party provides their
evidence in response. Reasonable jury, There is actual dispute.
If don't meet stage 1 burden, then SJ is denied.
-Sometimes nonmoving party cross moves for SJ.
Courts can grant SJ against moving party sua sponte if give notice and opportunity to be heard
For the most party evidence must be admissible (complies with rules of evidence)
-Ex: Hearsay
Caveat: If we think you can ultimately get the evidence admissible in a follow up
statement, Deny summary judgment. If you can fix the reason its inadmissible then
we may allow it.
(Think you can depose witness later, get to testify, re ask in a non-leading way)
Evidentiary Objections: Separate document to exclude evidence. Judge must decide if
admissible and ignores anything that is inadmissible.
In complaint you don't submit evidence, you submit contentions.
Celotex Corp. v. Catrett Supreme Court 1986, pg. 957
Justice Rehnquist (majority)
Justice White Concurring
Justice Brennan (chief justice and justice blackmun) Dissent
Class Notes:
Liberalized SJ in 2 ways:
1. Moved federal courts toward summary Judgment. (dispositionally)
-Before SJ was disfavored, 7th amendment important, go to trial
-After Celotex, SJ not disfavored, important to screen out meritless cases.
2. Changed what is required for Stage 1 burden.
a. Celotex said sometimes you can move for Summary judgment even if you
don't have evidence of own. You can just say other side has burden of proof
at trial and I bet they don't have evidence to prove.
In Celotex:
Defendant didn't have any evidence of its own to prove it didn't produce the
Just asserted plaintiff didn't have evidence to prove it did produce asbestos.
Supreme Court said that's good enough. Can meet stage 1 burden by proving where
plaintiff does not have evidence. (in cases where plaintiff has burden of proof)
Reasoning: If plaintiff has no evidence no reason to go to trial.
Celotex: 2 ways to meet stage 1 burden
-Evidence of your own.
-Prove other side doesn't have any evidence.
-Majority Opinion:
Pg. 959: Motion can't just say "I bet plaintiff can't prove case"
-You have to explain why plaintiff can't prove case. Have to point to their pleadings
and in particular have to point to discovery responses that prove that they can't
prove their case.
-In Celotex, they pointed out that plaintiff didn't have evidence. Didn't answer
Dissent thinks this makes it too easy.
-Want to prevent useless trials.
Get all the evidence they have and point out to the court that their evidence isn't good
Incentive to file early summary judgment motions (dissent)
-Response from majority: Rule 56(d) One way non moving party can respond is by
requesting a continuance, Must give court reason to believe that if given more time
this is the evidence you will be able to get and explain why you haven't been able
to get that evidence yet with due diligence.
-Defendant's want to file as early as you can so plaintiff's evidence is inadequate, but
you want to avoid 56(d)
-Wait enough time (3-6 months of discovery) and then move for SJ.
-Then it would show plaintiff wasn't reasonably diligent in their discovery.
Celotex Trilogy
-Supreme Court made it easier to get summary judgment
-Most state courts agree with Celotex Trilogy
Anderson v. Liberty Lobby
Look at evidence through lens of evidentiary standard at trial.
1. Not enough to have some evidence. You have to have some evidence that a
reasonable jury would find it over 50% likely. Must meet preponderance of the
evidence test.
2. In Anderson had to prove by Clear and Convincing evidence. In cases where
standard of proof is higher, that is relevant to summary judgment too.
3. Easier for defendant to get Summary Judgment now.
District Court granted the motion.
Court of appeals held that petitioner's summary judgment motion was rendered "fatally
defective" by the fact that petitioner "made no effort to adduce any evidence in the
form of affidavits or otherwise to support its motion."
From Adickes: the party opposing the motion for summary judgment bears the burden
of responding ONLY AFTER the moving party has met its burden of coming forward with
proof of the absence of any genuine issues of material fact.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly
support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials —
including the facts considered undisputed — show that the movant is entitled
to it; or
(4) issue any other appropriate order.
The rule above mandates the entry of summary judgment after adequate time for
discovery and upon motion against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case and on which that
party will bear the burden of proof at trial.
No requirement in Rule 56 that the moving party support its motion with affidavits or
other similar materials negating the opponents claim.
2 Methods for Summary Judgement for party who does not have burden of proof at trial:
1. Submit affirmative evidence to negate an element essential to the opposing party's
claim or defense
2. Show that the opposing party lacks sufficient evidence to establish an essential element
of its claim or defense.
Adickes, the moving party (defendant) used the first method or a combo of two methods, so
that is why needed affirmative evidence.
In Celotex, the moving party used method 2 so that is why didn't need affirmative evidence.
Burden of party opposing motion for SJ if she would have burden at trial:
-Putting forward additional evidence to show a genuine issue of material fact
-Seek additional discovery.
Initial burden on moving party which shifts to nonmoving party if satisfied by the moving
1. Weed out cases in which we do not need a trial.
a. We have stated a claim, but do not need to go to trial. Got past 12(b)(6)
2. Only go to trial to resolve disputes of fact
a. Before trial parties show there is NO dispute of fact
3. Standard:
a. The party moving for summary judgment must show two things
There is no genuine dispute on a material fact
She is entitled to judgment as a matter of law
1. This part is easy. If no dispute of fact then only Q of law.
b. The court DOES look at EVIDENCE
If looking at evidence then must be SJ and not 12(b)(6)
This evidence is proffered by the parties
Evidence is in written form. Court looks at evidence to determine if genuine dispute
on material fact.
1. Evidence: Materials that are executed under oath.
a. Affidavits
b. Declarations
c. Deposition Testimony
d. Answers to Interrogatories
Court may also consider admissions. If party admitted something then take into account.
-Pleadings are NOT evidence.
Not signed by parties, signed by attorneys under penalty of perjury
Pleadings can be relevant in Summary Judgment because court can look at admissions.
-When defendant fails to deny in answer
-No right to Summary Judgment. Always up to discretion of court
Courts are nervous about this. Don't want to take away day in court.
3 famous cases in 1986 that said to loosen up about summary judgment (supreme court)
Those three cases:
-Trial courts should grant summary judgment a little more
-Always up to discretion of trial court
Plaintiff walking across street and hit by car driven by D
P sues D
-Complaint: P alleges in crosswalk, had green light. Says D ran red light
-D files answer and denies all this
D makes motion for SJ
-Supported by affidavits from 3 clergy members at the scene. All day that the defendant had
the green light and was driving appropriately and P was jaywalking and jumped in front of
car. (evidence)
-If plaintiff puts no evidence against it, then court looks at this evidence and says no dispute
of fact and may enter SJ for defendant. Plaintiff better be careful and put evidence into
-Plaintiff does not proffer affidavits but relies on allegations of complaint
Pleadings are not evidence. So can't submit this as their evidence of a disputed fact.
Plaintiff puts forth affidavit from eyewitness but eyewitness is a drug addicted convicted swindler.
-Affidavit says P was in the right.
-SJ motion Must be denied because now we have some evidence in dispute.
The judge cannot judge credibility based on this evidence
-Question of fact for jury
Scott v. Harris (supreme Court case)
-If there is a video that shows the entire event, the court may grant SJ if the video shows there is
no dispute fact.
Section B: Adjudication at Trial
1. The right to a jury trial
2. The selection of the jury
a. At trial to resolve disputes of fact.
b. Jury decides the facts.
Judge gives jury instructions on the law.
Some cases are not jury trials
1. In those cases the judge decides the facts (bench trial)
Right to a Jury Trial
7th Amendment: Civil cases in federal court.
2 important phrases
1. 7th amendment PRESERVES right to jury trial
2. It does so only in cases at LAW not Equity
a. Locks us into historical test.
Whether or not we get a jury will be determined by whether would have had right to
jury in common law in England in 1791.
1791 was when 7th amendment ratified.
1. What does court look at in determining jury trial
a. Is the claim asserted analogous to claim asserted in 1791.
Court usually says yes for even more modern claims.
b. *** Focus on the remedy sought
Legal remedies vs. equitable remedies
1. Law: Jury; Equity: No jury
2. Law remedy: Compensatory damages
3. Equity remedy: Injunction, specific performance
Mixed cases: want damages and injunction? Get jury or no?
-Beacon theaters and Dairy Queen
-Establish 3 rules
1. Court determines jury right issue by issue
2. If an issue of fact to be determined underlies both law and equity, you get a jury.
3. We try the jury issues first.
Section C: Special Motions at or after trial
1. Judgment as a Matter of Law Rule 50(a) (Directed Verdict)
a. At Trial
b. Standard: 50(a)(1)
1. Grant motion for JMOL (Don't let jury decide the case) IF the judge decides that
reasonable people could not disagree on the result
2. Judge thinks case could only come out one way
c. 50(a)(2): Timing
1. Can only move for this after other side has been heard at trial
2. Like SJ but at trial, not before trial
2. JMOL is always discretionary. Judge never has to grant
Rule 50: JML (make motion during the trial) Can take case away from jury.
Judgment as a matter of law. Even though right to jury trial, given evidence on both sides (Same
standard as summary judgment: Need Genuine issue of material fact, that reasonable jurors
could differ.
Difference between rule 50 and SJ:
SJ after discovery before trial: Based on evidence submitted in opposition.
JML: Move at close of plaintiff's evidence. And or at the close of all evidence.
-Based on evidence produced at trial. Must be admissible. No continuances or anything. No
delaying JML.
JML: Same as SJ just made in middle of trial instead of before.
-In state Court JML is called a Directed Verdict.
-Evidence in equipoise: No more likely that one person at fault than another.
If evidence is exactly even must rule in favor of defendant because plaintiff has
burden of proof.
-Def has to win.
2. Renewed Judgment as a Matter of Law (RJMOL) Rule 50(b)
a. Exactly the same as JMOL, except comes up later
b. Court denied motion for JMOL and let case go to jury and jury returns a verdict for one side
c. The judgment is entered and the losing party makes a RJMOL motion and if granted, we take
victory away from winner at trial and enter victory for other side
d. Standard is the same as JMOL
1. The jury reached the conclusion that reasonable people could not have reached.
e. Why does this happen?
1. JMOL should be granted, but courts don't wanna grant JMOL so they deny JMOL.
Want to let jury decide, but if jury decides wrong then use RJMOL.
f. Timing:
1. Must move for RJMOL within 28 days after entry of judgment
2. To move for RJMOL you must have moved for JMOL at a proper time at trial
1. If you didn't make a JMOL then you waive RJMOL
3. Motion for new trial Rule 59(a)(1)
-Same timing as RJMOL
-Must move for new trial within 28 days after entry of judgment
-RADICALLY different motion
1. RJMOL is more extreme.
1. Do-over.
a. New trial completely.
i.Why grant new trial?
1. Unlimited bases
1. Trial judge is convinced there was a mistake in the first
trial that affected the outcome.
2. Rather than let go up on appeal, lets fix it by having a
new trial.
1. Anything at all. Maybe jurors were bribed etc.
Up to district judge!
Not rule 60(b): motion to set aside a judgment
-Timing in 60©: reasonable time (usually not more than a year)
-Extremely rare.
-Discretionary, but very rare.
1 exception (if og judgment was void) then no discretion.
-Federal rules are liberal
-Want to avoid trial by ambush
Recent amendments: we can discover not just tangible things but also electronically stored information
-Treat ESI like other information.
-***Under rule 26(g) There is a certification requirement.
-When you sign discovery docs you are certifying they are complete and not for improper purpose
Section A: Required Disclosures: Rule 26(a)
-Parties must produce certain information without request from other party.
Come up at 3 times
26(a)(1) 26(a)(2) and 26(a)(3)
Most important is 26(a)(1): Required initial disclosures:
Very early in case. Must turn this over within 14 days before 26(f) conference
-Must identify people with discoverable info that you may use to support your case.
-Must give copies or descriptions of things that you may use to support your case.
-Only have to cough up info if you're going to use to support your case.
-Don't have to cough up things that will hurt your case.
-Plaintiff must give calcuation of damages and defendant must disclose any insurance
plaintiff has
26(a)(2): Expert testimony
-Much later (through discovery)
-If going to use expert testimony must cough up info without request
26(a)(3): Pretrial Disclosures
-Close to trial (late in litigation)
-About what were going to raise at trial
Section B: Discovery Tools
-5 discovery tools (asking other party or non party for information)
1. We should not only know what they are, but which may be used to get info from non-parties!
a. Deposition
A deponent (person getting depo taken) testifies under oath. May be transcribed into
booklet. Live in a lawyers office.
When she testifies, she is answering questions proposed by the lawyers of the various
Questions might be live questions (rule 30).
Could be written questions (rule 31) read by court reporter
You may take a deposition of a party or a NON PARTY
1. You should subpoena the non party or else she does not have to show up
a. Subpoena: court ordering non parties attendance. Parties just get noticed.
Interrogatories: Rule 33
Written questions answered in writing under oath
30 days to answer.
Request to produce (rule 34)
Written request for access to things (docs, ESI, tangible things, to inspect or copy)
34© you may use this to get info from NON PARTIES. SHOULD SUBPOENA NON
Medical Exam Rule 35
Must get a court order (only one)
1. Must show that medical condition is IN CONTROVERSY and show GOOD CAUSE
a. Otherwise a tool of harassment.
Can only get an order to examine a party or someone in party's custody or legal
Request for Admission Rule 36
Asks you to admit or deny any discoverable matter.
If you do not deny within 30 days then you admit
Section C: Scope of Discovery
1. The Standard Rule 26(b)(1)
a. We can discover material that is relevant to a claim or defense and proportional to the
needs of the case.
Not proportional if the burden of producing outweighs likely benefit
1. Costs a great deal to get deleted emails. If not likely that that info will help your
case, then not proportional.
2. Up to discretion of the court.
Relevant can be broader than admissible
1. Hearsay can be discoverable but not admissible because it may lead to
admissible evidence.
2. Privileged matter is not discoverable!
a. Even if its relevant
b. Privileged:
Legal privilege: attorney client privilege.
1. Protects confidential communications between lawyer and client
2. Incumbent on party you seek discovery from to object
3. Work Product Rule 26(b)(3)
a. Not the same as privileged
Called trial Prep materials in rule
Material Prepared in anticipation of litigation
1. Protected from discovery!
a. No matter how relevant
b. You must object
Protected to avoid a free-rider problem
1. If you hire a PI to do all this due diligence and investigating,
you don't want another party
1. You can override work product protection if you show
1. Substantial need
2. The info is not otherwise easily available
2. Some work product are absolutely protected 26(b)(3)
1. Mental impressions
2. Conclusions opinions and legal theories
2. Can be generated by the party herself or any representative
of the party.
Enforcement of Discovery (orders and sanctions)
1. General Rule: 3 ways a court may become involved in a discovery dispute (courts hate these)
Usually you'll have to try to work it out with the other side. Must certify you tried to work it out
a. The responding party asks for a protective order Rule 26©
Ask the court to protect you because discovery request subjects you for undue burden
or expense 26©(1)
1. Court has discretion to limit discovery or denying discovery all together
a. Answers some questions but objects to others. If the party seeking that
discovery thinks the objections are bogus. The party seeking that discover
is going to make a MOTION TO COMPEL which would make party answer
the unanswered questions (interrogatories or depo Q's).
b. If court grants motion to compel, It is a really bad idea to violate that
2. If you were ordered by a motion to compel that was granted:
a. Sanctions in rule 37(b)(2)
b. Order you to answer in 37(a)
When responding party fails completely to attend depo, respond to interrogatories, respond to
requests for production
1. Here party seeking discovery does not have to make a motion to compel.
a. Only do this if guy didn't answer some and answered others
2. Rule 37(d)(1)(a)
a. Ask court for big time sanctions
37(d)(3) has list of sanctions
1. Merit sanction (can't put on certain evidence)
Section E: Conferences and judicial management
1. Judge takes control of litigation very early
2. Rule 16(b)(2) : Court must enter a scheduling order
a. Roadmap for how litigation will proceed during discovery
When discovery will be done, when motions will be completed.
3. Before scheduling order, court can ask for scheduling conference.
a. Scheduling order happens early in the litigation.
4. Parties are required under 26(f) to meet and discuss case with other party
a. Talk about settlement, problems with discovery
b. Parties also must put together a very detailed discovery plan.
c. Also must produce the required disclosures under 26(a)(1)
No more than 14 days before 26(f) meeting
1. Meeting will proceed 16(b) scheduling order
5. Court may also order conferences to monitor
a. Pretrial conferences may be ordered when court wants to
6. Final Pretrial conference
a. After discovery, right before trial
To discuss what issues will be tried.
b. Pre trial conference order.
Road map of what will happen at trial.
Class Actions Rule 23
Most popular 23(b)(3) (damages)
Representative sues on behalf of a group.
Class action is not a mass tort. Class action has to be so big a mass tort does not work
1. Not worth it for individual plaintiff to sue.
2. Too many plaintiffs to join under traditional joinder rules.
Prereqs: 23(a)
1. Too numerous for practical joinder (greater than 40)
a. Between 22 or 40 iffy. Less than 22 no class.
2. Common question to all class members (updated in Walmart Case)
a. Not only common question, but common answer to question.
Want to address the issue for everyone at one time
3. Certification: As early as practicable. Usually day 90-120. Not explicitly stated. Not in 23 (a)
a. Being certified means you can represent the class
b. When a individual action slowly racking up plaintiffs, at the point of requesting certification
c. Punitive class action is like an individual action, then additional plaintiffs could opt in.
Automatic opt in and manual opt out (since 1960s
d. Always at discretion of the court
4. Representative who is representing class must be typical of the class.
a. Could have multiple class representatives: Asbestos (lung cancer, asbestosis)
b. The representative adequately represents the interests of the class
Seeks recovery that everyone would want.
Types of Class Actions: 23(b)
23(b)(1): Limited Fund Action (mandatory. Cannot opt out)
23(b)(2): Declarative and Injunctive Relief (mandatory)
23(b)(3): Damages Class Action
Must show that the common question predominates over everything.
Must show that class action is superior way to adjudicate these claims.
Class Must be easily identifiable. Can't be too broad.
Class representative must be a member of the class.
Gratz v. Bollinger (Transfer Student)
-Can't be a lawyer and a named party.
3. Not a class action until you are certified 23(g)
a. Upon certification the court appoints class counsel if it is certified.
4. Notice of Pendency: Only matters in 23(b)(3)
b. 23(c ): Notice of pendency, can be claim precluded if don't opt out.
5. Class Representative pays for this.
5. Who is bound by class action judgment
a. All members except those who opted out of b(3) claims
6. Settlement or dismissal of class actions must be approved by court 23(e)
a. Parties can't just on their own decide. Unfair to parties
7. SMJ 1331 1332 1367 (supplemental) b. 14,19, 20, 24
a. Only look at class rep for diversity.
b. Amount of controversy doesn't need to be met. Just one person needs to meet amount in
Can't add someone who breaks diversity.
Walmart Stores v. Dukes
1. Old Rule: Just a common question among all class members.
a. Common question was construed broadly
2. New rule: Need Common Answer to address all members issue. Want them all to receive
adequate compensation
B(1) and b(2): notice is seldom required.
-b(1) Prejudice class actions: It would prejudice the class members or def. if we allowed to go on as
individual actions.
McReynolds v. Merrill Lynch
23(a)(2): 7th circuit. Went against wal-mart
Went against because didn't attack company wide policy.
Sullivan v. DB investments: 3rd Circuit.
Rule 23 does not require class members to state a valid legal claim as a basis for certification.
-Federal Common Law
-Cases that arise under fed law: Apply federal law in federal question cases, because there's a federal
law that tells you what to do (in most cases). So not using regular Erie Doctrine.
-Follow US Constitution, Federal Statutes, Treaties.
RDA says apply state law unless something federal tells you otherwise.
-In perfect world, every fed q case has federal law to follow for it.
-Congress paints in broad strokes (passes broad statute) and have federal courts fill in the rest.
Thus federal courts make federal common law. Federal Common Law Tradition
-Gap fill by federal common law.
-Empowered by Article III of constitution. Necessary and Proper Clause.
-Courts can fill in the gap just like congress could, as long as something federal.
Problem: Some diversity cases, mostly governed by state law, but still allow the creation of federal
SUBSTANTIVE common law.
-Even though governed by state substantive law, can create federal substantive common law.
-In areas where congress could have acted but did not.
-Ex: Pirate law/High Seas law. Congress has been silent (could have regulated but chose not to), so
Fed courts have taken on role. So this area is governed by federal substantive common law.
-Fed courts may still fill in gap with substantive law, even though congress hasn't acted.
-When are courts allowed to create fed. Substantive law even though cause of action plaintiff is
suing under is state law.
-Clearfield Trust Co. v. United States (479)
-Check issued by U.S.
-Person presents forged check to JC Penny
-JC Penny gives to bank Clearfield trust.
-Clearfield trust gives check to U.S.
-U.S. finds check has been forged so sues clearfield trust.
-Common law concept of Laches: can't sit on your but when something bad happens. Have to notify.
-Case itself, is state law breach of contract case.
-Is it governed by state law or federal law?
Federal Common Law Test
-2 Part Test:
1. Do we have the power to create federal law? Is federal law a necessary ingredient in
the dispute? (In this case, but-for federal law there would have never been this
check). In most state law cases, no federal ingredient.
2. If Yes, Should we create federal law for this particular case? Don't have to. Fact
dependent inquiry. Just because have power to, doesn't mean you always do. In this
case needed uniform rule. (federal interest)
Boyle v. United Technologies Corp., Supreme Court of the U.S. (1988) 483
-Marine dies because helicopter crash and couldn't get out. Defect: door opened out.
-Negligence: State law cause of action. Negligence governed by state law.
Defendant wants: -Federal Defense: Military contractor defense.
-Limited military contractor defense: When they ordered the helicopter, they gave me
a drawing of the helicopter, And I just followed their design.
Defendant Claim: Wants defense to say: If we make a product for the military and we
have a defective design, but was just following the design asked for then exception.
State law says no this isn't a defense.
-So should federal common law be made.
1. Can we create fed law? Federal law necessary ingredient? (but-for federal law
wouldn't have happened. Wouldn't be marine corps and thus helicopter
without federal gov't)
1. Would be different if it was a private helicopter crash.
2. Should we create fed law?
1. Federal interest? And would federal interest be advanced if we follow fed.
Law rather than state law. Question to ask: Would world be a better place
if we created a federal defense and not follow state law?
1. Better for military contractor. Couldn't get sued for this.
2. Better for America. Would be more costly for government if
followed state law and it would make taxes higher for us. Giving
defense would lower taxes.
-So Scalia and majority conclude that they can and should create federal common
law defense for military contractors here.
-Dissent: Brennan
Disagrees with part II. Yes we have power to create federal common law but I don't
think we should. Doesn't like judge made law. Defense too overbroad, willing to pay
extra taxes. Stupid rule. Doesn't just apply to military, applies to anything U.S. orders
and is defective. Defense for all government vendors. (usually down for judge made
law, but in this case anti judge made law.
-How to challenge Subject Matter Jurisdiction
When can you challenge? 4 times and 4 ways.
-In the beginning of law suit, before the answer: Motion to dismiss 12(b)(1) (most common)
-Put it in your answer--Raise it later. Maybe at trial, maybe on appeal
-Don't put in answer, just raise it at any time: Rule 12(h)(3).
-Default and appeal: Raise SMJ improper on appeal at anytime
-SMJ: Can never waive. Can bring up at any time.
Preclusion: Claim (Res Judicata) and Issue (Collateral Estoppel)
Case 1: Judgement entered
Case 2: Pending
Question: Does the judgment from case one preclude us from litigating anything in case 2?
What is preclusive effect of judgment from case 1?
Case 1 and Case 2 not about when filed but about when they go to judgment.
Section A: What Law Applies
-Every jurisdiction can apply own preclusion law. Vary from jur to jur.
1. What preclusion law to apply is case 1 and case 2 are in different judicial systems?
a. Case 1 in Kansas state law and case 2 in federal court.
b. The court in case 2 applies the preclusion law of the judicial system that decided case 1
c. Case 1 in federal court in Nevada and case 2 in state or federal court in West Virginia?
Must apply federal preclusion law because case 1 was in federal court.
Semtec Case: Case 1 in fed court based on diversity, case 2 uses federal preclusion law, but
federal law on that issue will presumably adopt the law of the state in which federal court sat.
Section B: Claim Preclusion (Res Judicata) (Doesn't matter who wins and who loses)
1. If you have a claim, you only get one case in which to vindicate it. (can only sue once for claim)
a. Cannot sue on same claim twice.
2. Three Mechanical Requirements
a. Rule 1: Case 1 and Case 2 must be brought by same claimant against the same defendant.
Same parties in same configuration.
b. Rule 2: Case 1 ended in a valid final judgment on the merits.
On the merits: Federal Rule 41(b): All judgments are on merits unless based on
jurisdiction, venue, or indispensable parties.
1. Even if litigated nothing (Default judgment is on the merits)
2. Not on merits if court in case 1 said it's not on the merits.
a. Enters case without prejudice or with leave to amend
3. Some states add to that list: dismissed on SOL not on merits
c. Rule 3: The claimant asserted the same claim in case 1 and case 2
Majority View/Federal law: The claim is the transaction or occurrence.
Some states (CA): Primary Rights Theory: We get a different claim for each right
3. Merger and Bar: Merger is claim preclusion if claimant won case 1. Bar claim preclusion if claimant
lost case 1.
4. Hypo:
a. A and B collide in car.
b. Each injured and has property damage
c. Case 1: A sues B for personal injuries from that crash. Litigate. Valid final judgment.
d. A sues B for property damage under the same claim
Rule 1: Yes!
Rule 2: Yes!
Rule 3: Majority: Yes. Same transaction or occurrence. Primary rights: No claim prec.
5. Hypo: Same facts
a. A sues B. Valid judgment on merits
b. Case 2: B sues A: Not precluded because not same parties in same configuration.
Section C: Issue Preclusion (collateral estoppel) (Against losers only)
Narrower than claim preclusion
Focus on an issue
1. Issue actually decided in case 1.
2. Case 1 we litigated and decided 4 issues. A, b, c, d
3. Case 2 needs to decide a, x,y, z. Issue a is established so narrows scope of trial in case 2
a. Dismisses an issue not entire case.
1. What do we have to show to get issue deemed established in case 2
Requirement 1: Case 1 ended in valid final judgment on the merits.
Requirement 2: Same issue was actually litigated and determined in case 1.
Requirement 3: The issue was essential to the judgment in case 1.
Requirement 4: Against whom is issue preclusion used? Based in due process
1. Must have day in court. (Through appeals process)
2. Or in Privity with party (If represented by party in case 1)
e. Requirement 5: By whom is issue preclusion asserted.
Mutuality: Old rule. Can only assert if you were a party to case 1.
1. Now Non-mutual issue preclusion okay.
a. Can be used by someone who was not a party to case one
2. Non-mutual defensive issue preclusion
a. Not a party in case 1 and defendant in case 2
3. Non-mutual defensive as long I had full chance to litigate in case one
Non-Mutual Offensive Issue Preclusion
1. Not a party in case 1 and plaintiff in case 2
2. Most courts reject non-mutual offensive
3. Now trend by federal law that allows non-mutual offensive as long as it's not
a. Parklane Hosiery v. Shore
Fairness factors if you can use non-mutual offensive
1. Full chance to litigate case 1
2. Can foresee multiple suits
3. Cannot have joined easily in case 1
4. ***No inconsistent judgments
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