PERSONAL JURISDICTION
SUBJECT MATTER JX
VENUE
CLASS ACTIONS
DISCOVERY
SERVICE OF PROCESS
PLEADINGS & MOTIONS
JOINING CLAIMS & PARTIES
PRE-TRIAL ADJUDICATION
TRIAL, JUDGMENT & POST-TRIAL
MOTIONS
CLAIM & ISSUE PRECLUSION (RES
JUDICATA)
A federal court can hear a claim when:
1.
Personal jurisdiction – the court has PJ over the parties or their property
2.
Subject matter jurisdiction – the court has SMJ over the claims raised in the case; and
3.
Venue – the case is filled in the proper venue
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Federal Rules of Civil Procedure (FRCP) – rules that govern civil court proceedings in federal court
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Rules are amended from time to time
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Purpose is to “secure the just, speedy, and inexpensive determination of every action”
JURISDICTION: CHECKLIST
1.
Personal Jurisdiction a.
Statutory authorization – is there a state statute that authorizes
PJ over the parties? Look for long-arm statute b.
Constitutional test – does establishment of PJ over parties satisfy requirements? Inquiry focuses on: i.
Minimum contacts – purposeful availment and foreseeability ii.
Relatedness – implicates whether jx will be general or specific iii.
Fairness factors – inconvenience to Δ, P’s interest, state’s interest, judicial efficiency iv.
Notice
2.
Subject Matter Jurisdiction – does SMJ exist? a.
Federal question jx b.
Diversity jx – complex diversity, amount in controversy c.
Supplemental claims d.
Removal
3.
Venue – is venue proper? Transfer issues?
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3 types:
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In Personam JX
1.
JX over people; most commonly tested type of PJ
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In rem JX
1.
JX over property
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Quasi in rem
1.
JX over people where property is attached
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In rem + quasi in rem JX concerns disputes regarding property or disputes between individuals where property is attached
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In Rem o Jx over property or status, including ownership disputes
 Gives a court the authority to determine title to an object or real property located in the court’s forum state
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Judgment is binding as to the disposition of property rights, but not as to parties personally
 Often involves estate issues, business proceedings, property disputes
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Quasi in Rem o JX over persons where property is attached
 Permits a court w/o PJ to determine certain types of disputes between a P and Δ regarding property located in the forum state
 Used to force a litigant to appear in court by attaching the litigant’s property
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An action may be brought against Δ as well as his assets due to fears Δ will flee the state
 Court cannot compel attendance by the litigant, but can indirectly do so by forcing the litigant to choose between losing his property or appearing in court
 Court may render judgment as to persons with respect to property (rather than judgment over person or property itself)
Shaffer v. Heitner
Can property be the basis for in personam JD over persons?
Even if the property is located in DE, still have to apply the min. contacts test
From here on, regardless of if the attempt to establish a relationship is quasi in rem or pure in personam, you must ask do the contacts constitute sufficient minimum contacts to establish JD
 FACTS: Heitner (P), nonresident of DE, owned stock in Greyhound Corp, which is incorporated in DE. P filed shareholder derivative suit in DE court (Court of Chancery for
New Castle County) against Greyhound & its subsidiary Greyhound Lines and 28 present or former officers or directors of the corps. Alleged the 28 individual Ds violated duties by causing Greyhound to engage in actions that resulted in it being held liable for damages in an antitrust suit and criminal contempt action.
 ISSUE: Should International Shoe’s standard of fairness and substantial justice govern actions for in rem JD as it does for in personam JD? o HOLDING: Yes -- All assertions of of state court JD must be evaluated according to standards set forth in International Shoe. Most in rem cases will not even be
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 o o affected by this ruling -- in state contacts bear on existence of JD by providing contacts among forum state, D, litigation. Only changes cases where the property which serves as the basis for JD is wholly unrelated to the controversy.
D’s could not have expected to be hauled into DE court
Ds have not availed themselves of DE law o By acquiring interests, Ds did not surrender their right to only be subject to JD in states where they made minimum contacts
POWELL, CONCURRING: Reserves judgment on whether ownership of some forms of property whose situs is indisputably and permanently located w/in a state may provide necessary contacts.
STEVENS CONCURRING: This suit might be appropriate if dealing w/ international law-- foreign investments. Need to ask does the state, as a matter of doctrine, have the power
AND does the person over whom the power is supposed to exercise have fair notice? If they have sufficient notice, they reasonably should have foreseen
 BRENNAN, CONCURRING AND DISSENTING IN PART: Would approach minimum contacts differently -- Ds voluntarily associated themselves w/ state of DE -- the minimum contacts existed in this case bc the Ds were members of the board of directors of a DE corp.
PENNOYER v. NEFF
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In 1 st lawsuit – 1865 -JH Mitchell sued Marcus Neff in Oregon circuit court alleging that Neff owed Mitchell legal fees o Mitchell tried to notify Neff of the suit by publishing a notice for several consecutive weeks in a local newspaper o State enters a default judgment – failing to contest action – in favor of Mitchell o Writ of execution – court order that allowed sherrif to auction off the land o Mitchell purchased the land and then sold land to Sylvester Pennoyer
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Neff returned to Oregon and discovered Pennoyer occupying his land
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2 nd lawsuit – 1874 – Neff filed lawsuit against Pennoyer in fed. court stating that Pennoyer had not acquired a good title to the land o Procedural history: fed. court rule in Neff’s favor and Pennoyer appealed to the
Supreme Court
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Issue: Can a state exercise personal JD over a non-resident who was not personally served w/ process w/in the state? i.e. Newspaper
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Holding: No
Reasoning: since the P was a non-resident of the state in which the action was brought and was not personally served – Mitchell posted in the newspaper. The validity of judgments against persons who have not been personally summoned or had notice of the proceeding may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no JD do not constitute due process of law.
The court noted that a state’s courts can have “in rem” or “quasi in rem” JD over a Δ’s property that is found in the state, but only if the property is timely and properly “attached” to the suit while the suit was proceeding/underway.
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IN PERSONAM JURISDICTION o In personam JX gives the court power to issue a judgment against persons or entities o Analyzing in personam JX – JX must be statutorily authorized and constitutional
 Statutory – a state law must authorize JX (long arms)
 Constitutional – JX must satisfy due process; to do so, these requirements must be satisfied:
1.
Minimum contacts – Δ must have such minimum contacts with the forum state the exercise of JX is fair and reasonable a.
Factors include Δ’s level of purposeful availment and the foreseeability of JX given Δ’s contacts in-forum
2.
Relatedness – the nature and quality of Δ’s contacts must be sufficiently related to the forum state a.
Nature of relatedness will determine whether JX is general or specific
3.
Fairness – the exercise of JX must not offend traditional notions of fair play and substantial justice a.
Factors include convenience to parties and the forum state’s interest in providing redress for its residents
4.
Notice – Δ must be reasonably notified of the pending lawsuit
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Statutory authorization of Personal Jurisdiction o Most states have statutes granting their courts in personam JX in certain situations which fall into four categories
1.
Domicile – Δ is domiciled in the forum state a.
Domicile – Δ maintains a permanent home in the forum state b.
Court can exercise PJ over domiciled persons even if they are not physically present when served with notice of the lawsuit
2.
Consent – Δ consents to JX in the forum state a.
Consent can be express (e.g. by contract) or implied (e.g. appearing in court without objecting to PJ)
3.
Presence – Δ is served with notice while present in the forum state a.
Exception – not applicable if Δ is tricked into coming to the forum or in the forum for purposes of opposing JX
4.
Long arm statute – Δ’s acts fall under the forum state’s long arm statute that grants in personam JX to a limited or unlimited extent o If in personam JX has not been satisfied through domicile, consent, or presence, a longarm statute must give the forum state power to exercise JX over Δ
 In addition to statutory authorization – PJ must also satisfy constitutional requirements
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LONG-ARM STATUTES o Nearly every state has a long-arm statute that grants PJ to a limited degree or broadly
 If the forum state has a long-arm statute, JX is proper so long as the long-arm statute authorizes JX and constitutional requirements are satisfied o TYPES of long-arm statutes
 Limited – most states have long-arm statutes that specify situations in which their courts can exercise JX
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E.g. a statute that permits JX over parties when “a tort occurs within a state” or if “the cause of action arises out of transaction of business within the state”
 Unlimited – some states have long arm statutes that authorize JX to the extent permitted by the US constitution
 if the state has an unlimited long-arm statute, statutory requirements for PJ will almost always be satisfied
Interpreting Long Arm Statutes:
● Many states do not confer the full constitutional authority to exercise PJ, so courts often have to interpret the scope of applicable long arm statutes. These provisions commonly appear in enumerated act statutes that confer PJ in a wide range of cases, or in narrower statutes such as in business registration statutes.
● Some states, like CA, allow PJ to full extent that constitution allows.
Unconstitutional Long Arm Statutes:
● If a court concludes that a statute authorizes PJ, but that PJ would be unconstitutional, the court will refuse to exercise PJ in that case. But, they will NOT strike down the statute.
FRCP Rule 4(k)(1)(a):
● In most cases, a federal court may only exercise PJ if a state court in the state where the federal court sits could do so.
● This is true despite the fact that the 5th amendment due process clause grants federal courts broader jurisdictional authority than state courts are granted under the 14th.
Special Statutes Passed by Congress Authorize Nationwide PJ:
● For example, Congress has authorized federal courts to exercise PJ to the full extent that the constitution allows in bankruptcy cases.
● Under these statutes, federal courts can probably exercise PJ as long as a D has a relevant contact somewhere in the US.
INTERNATIONAL SHOE CO. v. WA
326 US 310 (1945)
Facts: ISC was incorporated in DE & principal place of business is St. Louis MO. While it did not have an office in Washington, ISC employed 11-13 salesmen from WA to exhibit samples & solicit sales. ISC compensated the salesmen commission on the sales they made. WA notified ISC that they were held liable for contributions to the unemployement compensation fund. Notice was sent to the WA salesmen. ISC argued that they weren’t conducting sufficient business in WA & sending it to the salesmen was not due process/proper.
Established:
Minimum contacts
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Purposeful availment
Foreseeability
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Rule: Personal JD is the court's authority to determine personal rights and liabilities of the parties before it. Under personal JD the court has the power to decide matters of a particular
Δ
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Constitutional test for PJ o If statutory requirements for PJ are satisfied – constitutional requirements must be satisfied – meaning the exercise of PJ over D must “not offend traditional notions of fair play and substantial justice”
 This is the requirement as established in International shoe
 The analysis has evolved into 4 main requirements
2.
Minimum contacts – Δ must have sufficient contacts with the forum state such that exercise of JX would be fair and reasonable
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2-part inquiry that focuses on (1) D’s level of purposeful availment and (2) the foreseeability of PJ being granted over Δ given Δ’s contacts in the forum state
3.
Relatedness – the nature and quality of D’s contacts must be sufficiently related to the forum state itself
 level of relatedness will implicate whether JX is general or specific
3.
Fairness – the exercise of PJ must be fair
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Requires analyzing several factors
4.
Notice - Δ must be reasonably notified of the pending lawsuit
 Minimum Contacts o As part of the constitutional requirement for PJ, Δ must have minimum contacts with the forum state
 Establishing minimum contacts focuses on two requirements: (1) purposeful availment, and (2) foreseeability o Purposeful availment
 Δ must purposefully (not accidentally) avail himself of benefits of conducting activities in the forum state
 Privileges & benefits – did Δ take advantage of privileges and benefits normally enjoyed by forum state residents?
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E.g., using the state’s courts, using state resources, doing business instate
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Stream of commerce – a business merely placing an item in the stream of commerce that ends up in the forum state is usually insufficient to satisfy this requirement
Asahi Metal Industry Co. v. Superior Court of CA
Facts:
 Zurcher (CA) lost control of motorcycle & collided w/ a tractor. He was hurt and his wife was killed.
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Zurcher sued Cheng Shin Rubber. Cheng Shin filed a cross-complaint seeking indemnification from its coΔs and from petitioner, Asahi, the manufacturer of the valve assembly.
Zurcher's claims against everyone were settled & dismissed except for the claim against Asahi.
Asahi is a Japanese corp. who sold valve assemblies to Cheng Shin in Taiwan. Cheng Shin sold finished products to US, 20% to CA.
Procedural History:
 Superior Court of CA ruled against Asahi. Court of Appeal of CA reversed, ruled for Asahi.
Supreme Court of CA reversed, ruled against Asahi. SCOTUS reversed, ruled for Asahi, no jurisdiction.
Issues:
 Does the mere awareness on the part of a foreign D that the components it manufactured, sold, and delivered outside the US would reach the forum state in the stream of commerce constitute "minimum contacts" in that state?
Holding/Rule:
 The mere awareness on the part of a foreign D that the components it manufactured, sold, and
 delivered outside the US would reach the forum state in the stream of commerce does not constitute "minimum contacts" in that state.
The D's awareness that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum state.
Reasoning:


"Stream of commerce plus"
Asahi never purposefully availed itself of the CA market.
 Jurisdiction is proper when the contacts result form actions of the D that create a "substantial connection" w/ the forum state.
 The "substantial connection" between the D and the forum state necessary for finding of minimum contacts must come about by an action of the Δ purposefully directed toward the forum state.
 Asahi does not do business directly in CA, has no office, agents, employees, or property in CA.
It did not create, control, or employ the distribution system that brought its valves to CA.
 o Foreseeability
 Δ must know or reasonably anticipate that his in-forum activities make it foreseeable that he may be held accountable in the forum state’s courts
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E.g. if Δ sells and markets products in the forum state and the product is defective, Δ can reasonably foresee being sued in the forum state
Relatedness requirement o As part of the constitutional requirements for PJ, the nature and quality of Δ’s contacts w/ the forum state must be sufficiently related to P’s claim o Relatedness test
 Ask whether P’s claims arises from Δ’s contacts with the forum state
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Requirement will be satisfied as long as Δ’s contacts or in-state activities directly or indirectly concern or give rise to P’s claim o General vs. Specific JX
 The level of relatedness between P’s claim and Δ’s contacts w/ the forum state will determine whether jx is general or specific
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Specific jx – activity giving rise to the suit occurred in the forum state
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o PJ will be proper only for claims arising from D’s in-state activities
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General jx – Δ’s in-state contacts are so systematic and continuous that
Δ is essentially at home in the forum state o If established – Δ can be held accountable in the forum state for any claim arising in or outside of the forum
 Fairness factors o As part of the constitutional requirement for PJ, the exercise of jx over Δ must be fair
(i.e. must not offend traditional notions of fair play and substantial justice); involves weighing several factors
1.
Inconvenience to Δ – would exercising jx over Δ in-forum severely disadvantage Δ? a.
Must be so inconvenient and difficult that Δ is inherently put at a disadvantage compared to P
2.
P’s interest – evaluate P’s interest in obtaining convenient and effective relief a.
Consider the cost to P of litigating in Δ’s domicile and difficulty of travel to Δ’s domicile
3.
Forum state interest – evaluate whether the forum state has an interest in providing redress for its residents or an interest in the outcome of the case
4.
Judiciary efficiency – evaluate ease of litigating in the forum state
5.
Consider location of witnesses, evidence, etc. o Weigh each of the above factors and evaluate whether overall, it would be fair for the court to exercise jx over Δ
 Notice requirements o Due process requires that Δ must be sufficiently notified of a pending lawsuit o Requirement – notice must reasonably calculated under the circumstances to apprise Δ of the pendency of the action and afford Δ an opportunity to be heard
 Notice is a procedural due process requirement for exercise of PJ
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Other PJ requirements: min. contacts, relatedness, fairness – are substantive due process requirements o Methods of giving notice
 Traditional methods of service of process will satisfy due process
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Personal service, registered mail, delivery to an appointed agent
 If P knows that notice was not received by Δ, P cannot proceed
 CHALLENGING, WAIVING, & CONSENTING TO PJ o Δ may consent to PJ even if Δ would not be subject to PJ
 Alternatively, Δ may raise lack of PJ as a defense to P’s complaint o Challenging PJ
 Δ can challenge PJ as a defense in Δ’s answer or other first responsive pleading to P’s complaint
 e.g. Δ may file a motion under FRCP Rule 12(b)(2) challenging PJ before filing an answer to P’s complaint o Waiving PJ
 Δ may waive lack of PJ in various ways, but most notably by failing to raise it as an issue in Δ’s answer to P’s complaint
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Δ can also waive lack of PJ by appearing in court without challenging PJ
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“Transient Presence” Jurisdiction: Burnham v. Superior Court
Burnham v. Superior Court of California (SCOTUS, 1990, Scalia, plurality, but only three judges sign on: CJ Rehnquist and Kennedy join for all parts; White joins for 2A, 2B, 2C)
 FACTS: Dennis B married Francie B in WV, they moved to NJ in 1977 and had kids, then
Francie and kids moved to CA. Dennis files for divorce in NJ. Later, Dennis visits kids in CA, when he drops one of them off, Francie has him personally served for a divorce suit in CA state court.
 ISSUE: Does due process deny CA courts JD over a nonresident, who was personally served w/
 process while temporarily in the state, in a suit unrelated to activities in CA?
HOLDING: No -- the rule that a state may assert PJ over a non-resident D by serving him while he is physically present in the state still stands -- Pennoyer. The minimum contacts test in Int’l
Shoe is an ALTERNATIVE to this -- minimum contacts are not required when D is present in state for service.
 PARTS I and II: JD based on physical presence alone is one of the continuing traditions of our legal system that define due process standard of “traditional notions of fair play and substantial justice.” Since 14th amendment was adopted in 1868, virtually every state has upheld this practice -- this dates back to adoption of the 14th and is still generally observed.
Rejects argument that Shaffer compels conclusion that state has no JD unless litigation arises out of his activities in the state -- like Int’l Shoe, this was a question about an ABSENT Δ.
 Part III: (White does not sign on) Rejects the arguments in Brennan’s concurring opinion.
Insistence that court applies traditional notions of due process is BS because that’s exactly what they’re doing -- Brennan is more concerned w/ individual justices’ opinions of what is fair and just than w/ traditional doctrines. “Fairness” argument is not persuasive -- fairness

 actually exists bc there is a continuing tradition. D availing himself of benefits of CA for only 3 days makes no sense. Argument that bc D is permitted to appear in CA as a P, he should also be compelled to appear in CA as a D would extend JD to virtually everyone. Brennan’s test would need an individual analysis of every single case -- not practical, would result in too much litigation
White Concurrence: Court has the right to re-examine even “traditional” practices, but in this instance we don’t have to.
Brennan Concurrence w/ Marshall, Blackmun, O’Connor: Scalia too concerned w/ pedigree of law -- there should be an independent inquiry into the fairness of the law -- even ancient laws must comport w/ due process. Burnham had contacts w/ CA by visiting his kids, so transient JD fair here
Stevens Concurrence: Tiebreaker, doesn’t take side. There’s enough to affirm.
Transient Jurisdiction and Corporations:
● Transient JX based on service in state does not apply to corporations if their agents happen to be traveling to forum state bc they have a separate legal status
○ Many states require companies to appoint agents in state for service and consent to in state JX
● It can apply to partnerships if a state has authorized it with a long arm statute
● There are exceptions to transient JX, like if someone is coaxed into the state under fraud or duress. D must be there voluntarily and knowingly enter
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CONSENT AND WAIVER
Ds can consent to PJ even if they could also object through either WAIVER OR CONSENT:
Consent
● Affirmatively deciding not to raise the issue in court -- courts typically do not address PJ sua sponte
● Consenting by conduct (forum selection clauses, engaging in certain forum related activity like driving in a state where there’s a consent statute, i.e. Hess v. Pawlowski)
Waiver
● Typically results from party’s failure to raise an issue within a specified time or in a proper manner OR if court deems party did not comply with court orders
● Can NOT consent or waive a court’s subject matter JX, only personal
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 A federal court must have authority over a claim before it (as opposed to the parties or property, which is the concern of PJ) o SMJ refers to a court’s ability to exercise that authority

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SMJ basics: o Federal courts are courts of limited jx i.e. Congress has limited the types of actions federal courts can hear o SMJ cannot be waived o Δ can raise lack of SMJ at any time, court may raise it sua sponte (on its own at any time)
Types of SMJ o Federal question jx o Diversity jx o Supplemental jx o Removal jx

Federal question jurisdiction o if a claim arises under federal law, the U.S. Const., or a treaty, the court will have federal question jx (FQJ) which is a type of SMJ o Requirements – a claim must involve a right or interest substantially founded on federal law to satisfy FQJ requirements
 P’s complaint must clearly raise a claim arising under federal authority
 FQJ must arise based on P’s allegations – it cannot arise based on a defense or
 counterclaim raised by Δ o Determining whether FQJ exists – ask if P is seeking to enforce a federal right (e.g. it arises under a federal law, U.S. Constitution, or treaty)
 If not, no FQJ exists o Exclusive federal jx – federal courts have exclusive jx over the following matters (i.e., cases involving the below matters be heard in a federal court)
 Bankruptcy, patent copyright & trademark, admiralty, antitrust, securities and banking regulations, suits between states o 28 USC 1331 grants jurisdiction to the fed. district court over all cases "arising under the
Constitution, laws or treaties of the United States."
FED Q must appear as part of the P’S cause of action as set out in a well-pleaded complaint
 Δ’s answer or defense is irrelevant – existence of a defense based on fed. law will not give FQJ
 Anticipation of a defense – a complaint doesn’t create FQJ if it alleges fed. issues only in anticipation of some defense (Louisville & Nashville Railroad v. Mottley)
 Citizenship of the parties is irrelevant
 No amount in controversy requirement in these "fed. question" cases

The Constitutional Scope of Fed. Question jurisdiction
 Statutory grant in 28 USC 1332 has been interpreted narrowly o Under Osborn, as long as the original cause involves a Q of FED law - the case arises under federal law
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o Any case in which an issue of fed. law is asserted by 1 of the original parties thus satisfies the constitutional Δ of FQJ
Louisville & Nashville Railroad Co. v. Mottley - Rule of Law Established: For a suite to arise under the
Constitution and laws of the US, giving a fed. court jurisdiction to hear the case, a P must allege a cause of action based upon those laws or that Constitution
 distinct practical advantage of the well-pleaded complaint rule - allows court to decide whether it has FQJ based on complaint alone, w/o regard to defenses the Δ might raise
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Mottley rule allows the court to determine its jurisdiction w/o demanding an immediate answer to the complaint or relying on the P's representations about likely defenses
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Diversity Jurisdiction o Diversity jx gives federal courts authority over controversies between citizens of different states, even where claims do not arise under federal law
 Idea is that citizens of different states should not be force to litigate in one party’s home state – provides a neutral forum – risk of local bias o Requirements: o
1.
Complete diversity – every P must be of diverse citizenship from every Δ
 No P can be a citizen of the same state as any Δ o Does not require that all parties be from different states; just no P and no Δ can be from the same state
2.
Amount in controversy – total amount in controversy must exceed $75,000
 P’s complaint must include a good faith allegation that her claim is worth more than $75,000
Exception to diversity jx – federal courts will not hear actions involving divorce, alimony, child custody, or probate, even if diversity requirements are otherwise satisfied
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Article III Section 2 grants diversity JD in general terms

Congress authorizes the Fed. District courts to hear diversity cases o 28 U.S.C. 1332 (a): The District courts shall have original JD of all civil actions where the matter in controversy exceeds $75,000, exclusive of interest and costs, & is between –
 Citizens of different States;
 Citizens of a state & citizens or subjects of a foreign state, except that the district courts shall not have original JD under the subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
 Citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
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 A foreign state, defined in section 1603(a) of this title, as P & citizens of a State or of different States

Complete Diversity Requirement o Under diversity jx, every P have diverse citizenship from Δ o MUST exist at the time the suit is brought, DOES NOT have to exist at the time the cause of action arose o Not defeated if: a party later becomes a citizen of the same state as 1 opponent o Article III Section 2 allows for foreign citizens to sue state citizens in fed. court if they meet the amount in controversy requirement o Determining citizenship 28 USC § 1332
 People – citizens in the state where they are domiciled
 DOMICLE TEST: A new state citizenship may be established by (i) physical presence in a new place and (ii) the intention to remain there
(no present intent to go elsewhere). The citizenship of a child is that of her parents. In most cases – citizenship of a party will be determined by court
 A person does not lose her old domicile until she acquires a new one o To determine intent to remain, look at things such as location of voter registration, place of work, etc. o A person cannot have more than one domicile

Citizenship is examined at the time of filing; diversity need not exist when issues giving rise to the claim arose
 Corporations – citizens of every state where incorporated and where corp. maintains a principal place of business

Determining PPB: look at where directors, officers, executives make decisions o Corp. can have multiple states of citizenship
 28 USC 1332( c )(1) o Corp. shall be deemed a citizen of "every state (and foreign state) by which it has been incorporated and of the State or foreign state where it has its principal place of business" =
creates dual citizenship o Unincorporated businesses (LLC, LLPs etc) – citizens of states in which any partner or member is a citizen
 IN claims based on fed. Law for or against an unincorporated assoc. – the assoc. has entity capacity but question of its citizenship is normally irrelevant b/c the court will have fed. Question jurisdiction. When DJ involved, an unincorporated assoc:
 May sue or be sued in its own name if local state law so permits; OR
 Is an aggregate of individuals if local state law follows the common law rule
 Class Actions – relevant citizenship is that of the named members; maneuvering for DCJ
 Partnerships
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 General – citizenship is that of each and every general partner
 Limited – each and every partner both limited and general
 Limited Liability Companies – unincorporated assoc.s for citizenship purposes
 Business Trusts – the trustees of a business trust are the real parties in interest and their citizenship determines whether there is diversity
 Legal representatives – has the same citizenship as individual represented
GORDON V. STEELE – parties must be diverse on day the complaint is filed o Rule of Law Established: For purposes of diversity citizenship, a college student's new state of residence will be considered his domicile upon factual determination that o o student has sufficient connection w/ state & intent to remain indefinitely
Facts: Feb 25, 1972 Gordon (18 years) was treated by 2 doctors at an Erie County PA
Hospital (Δs)
Gordon: Δ's malpractice resulted in continuing pain and disability in her wrist o o
28 USC Section 1332(a)(2) – grants SMJ over “alienage cases” – US citizen vs. alien.
28 USC Section 1332(a)(3) – grants JD in a case between citizens of different states in which subjects of a foreign country are additional parties
INTERPLEADER EXCEPTION
Fed. Interpleader Statute – Minimal Diversity Interpleader under fed. rules – complete diversity
Interpleader pursuant to Rule 22 of the
Fed. Rules, on the other hand, requires the
The fed. Interpleader statute [28 USC 1335] requires only that among the parties there be “2 or more adverse claimants, of diverse citizenship.”
Thus, “minimal diversity” is sufficient to confer juirisdiction under the statute. If there is diversity between any two of the claimants, all other claimants may be citizens of the same state usual diversity between all the Ps
(stakeholders) and all the Δs (claimants)
MAS V. PERRY A party is domiciled in the state where her true, fixed, & permanent home is located. o Mr. & Mrs. Mas were graduate students at LSU. Mr. Mas was a French citizen, and Mrs. o o
Mas was from Mississippi. They married at Mrs. Mas's home; then returned to LSU for 2 years
Moved to Illinois for 4 months and then moved back to Louisiana
While they lived in Louisiana - landlord Perry watched them through two-way mirrors w/o Mas's consent
HERTZ CORP v. FRIEND SC held that a corps. Principle place of business is the state from which the corp.’s high level officers direct, control, and coordinate the corp.’s activities (NERVE CENTER) o Friend - employee of Hertz and a # of other Hertz employees filed class action against o
Hertz alleging Hertz had failed to conform to CA's wage and hour laws
Hertz: alleges that P and Hertz were from different states, sought removal of case to fed. court
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o Plaintiffs: argued that Hertz's principal place of business was located in CA because it derived more revenue from the state than any other state and majority of business activities were in CA

Amount in controversy requirement o For a case to qualify for diversity jx, P’s complaint must allege in good faith that the damages in controversy (exclusive of interest and costs) exceed $75,000 o Requirements:
1.
P’s claim must exceed $75,000
2.
Good faith a.
it must appear legally plausible that the recovery would exceed $75,000; fairly easy standard to satisfy
 i.
if there is no legal possibility that P will recover more than $75,000, the court can dismiss ii.
Amount actually awarded is irrelevant – only matters what P might plausibly recover based on P’s complaint
Aggregating claims – multiple claims can be combined by a single P to satisfy the
$75,000 requirement o One P against one Δ: Courts have held that a single P may aggregate any separate claims she has against a single Δto meet the amount in controversy requirement even if the courts are unrelated
 A 2nd P. may tag along if the first P's claim meets the amount requirement o One P against several Δs: a P who has an action against several Δ’s cannot aggregate claims based on separate liabilities
 HOWEVER : aggregation okay when P asserts a joint claim against multiple Δs o Several Ps against one Δ: can aggregate claims only where they are seeking “to enforce single title or right in which they have a common undivided interest” o Class actions: claims of the class members cannot be aggregated if their rights are “separate” rather than “Joint” or “common.” 1 class representative’s claim must exceed $75,000 and the court will have Supp. J over the claims that do not exceed $75,000+
DIEFENTHAL v. CAB - Although the damage amount claimed by P in good faith will generally control diversity jurisdiction assessment, the amount in controversy requirement will not be satisfied by an unsupported claim for damages o Diefenthal's purchase first class tickets on Philadelphia flight o Requested seating in the smoking section and confirmed before boarding o Once on the plane they were informed that there were no seats in the smoking section

Rule 11(b)(3) of the Fed. Rules of Civil Procedure requires that the factual allegations in a complaint "have evidentiary support."

Supplemental Jurisdiction o Supplemental jx allows parties to attach a claim over which the court does not have original SMJ (i.e., no diversity or FQJ) to one that does
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 Not an individual basis for jx; only allowed for additional claims attached to claims for which FQJ or diversity exists
 Often arises with cross-claims, counterclaims, joinder, and intervention of additional parties o Requirement – common nucleus of operative fact
 Each supplemental claim must share a common nucleus of operative fact with an existing claim that invoked original SMJ

Satisfied if supplemental claims arise from the same transaction or occurrence as the underlying claim

Note – in diversity cases, supplemental claims involving additional parties may destroy diversity o Denial – court may refuse a supplemental claim if:
 Original jx claims are dismissed early and only supplemental claims remain
 Supplemental claim raises novel/complex state law issues, or
 Supplemental claim substantially predominates over original claim o Limitation – in diversity cases, P cannot use supplemental jx to overcome lack of complete diversity (does not apply to D)
 P can use supplemental jx to overcome insufficient amount in controversy (e.g. aggregating claims)

Some Parties in fed. cases assert multiple claims – some supporting original fed. JD – and others do not o In a diversity case, a Δ may counterclaim for less than the jurisdictional amount, bring in a third-party Δ from the same state, or assert a state law crossclaim against a coΔ from the same state

Before enactment of 28 USC 1367 (supplemental JD statute) – such claims were analyzed as either pendent claims or ancillary claims, depending on their posture in the case. Today – both referred to as supplemental claims

United Mine Workers v. Gibbs – the SC held that a fed. court that has jurisdiction over one of the P’s claims may hear others (in in themselves jurisdictionally insufficient) that arise out of the same nucleus of operative fact o Gibbs further held that the fed. court may decline to exercise that JD if it is more appropriate to have the state law claim decided in state court

The fed. court cannot hear supplemental claims unless those claims satisfy the constitutional standard articulated in Gibbs and the court has statutory authority to hear them as well

Congress enacted supplemental jurisdiction statute to clarify the fed. Courts’ authority to hear such related claims. Section 1367(a) authorizes a fed. court that has “original JD” over one claim in the original case to hear all other claims that are part of the same case or controversy

This grant of JD extends to claims by or against additional parties even if no claim by or against that party confers original JD on the fed. court

Section 1367(b) bars JD over certain claims by Ps (even though they are w/in the broad grant of
JD in 1367 A in cases based on diversity JD

If the court has supplemental JD over a claim, it may still decline to hear it for the reasons listed in 28 USC 1367

Supplemental JD provides a basis for JD over claims that cannot be assert in fed. court on their own. Where a party joins a claim in an action that could have been brought in fed. court on its own, there is no need for supplemental JD.
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
Removal jurisdiction o Removal involves moving a case filed in state court to federal court
 Δ can remove a case originally filed in state court to federal court if the federal court would have had SMJ (diversity or FQJ) over the case had it been filed originally in federal court

If P could’ve filed her case in federal court, but instead filed it in state court, Δ can remove the case to federal court o Requirements
 A case may only be removed to federal court if it could have been originally filed in federal court
 Only Δ can remove and, if there are multiple Δs, all Δs must agree to removal
 Removal is only proper to a federal district embracing the state court in which the case was originally filed o Diversity jx limitations
 Δ cannot remove if P filed suit in D’s home state (i.e., no removal if any Δ is a citizen of the forum state)
 Removal is barred starting one year after the case was filed in state court o Remand – if removal is improper, the federal court can remand the case back to state court

CHALLENGING Subject Matter Jurisdiction o Any party may challenge the court’s SMJ at any time by filing a Rule 12(b) motion
 The court may also raise the issue of lack of SMJ sua sponte o Attacking SMJ
 Δ may attack SMJ based on the face of the complaint or other evidence showing
P’s claims lack SMJ; two ways to attack:

Facial attack – Δ claims the court lacks SMJ b/c P fails to plead a required element of SMJ (e.g., failure to plead diversity or FQJ)

Factual attack – Δ brings in evidence to show that diversity or FQJ requirements are not satisfied o Timing – SMJ may be challenged at any time during the lawsuit, even on appeal
 Challenges during litigation – both Ps and Δs can challenge SMJ at any time by filing a Rule 12(b) motion

Distinguish from challenges to PJ and venue, which can only be raised by Δ
 Challenge after judgment – P or Δ can file a Rule 60(b)(4) motion to render the judgment void for lack of SMJ o NOTE – parties cannot consent to or waive SMJ
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
Venue o Venue involves determining the federal judicial district(s) in which P may bring suit
 More than one state’s districts may have proper venue over a suit
 Main consideration is convenience o General Rules for venue – in federal court, venue is proper:
 in any district where any Δ resides (if all Δs reside in the same state in which the district is located)
 in any district in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is situated, or
 if no district in the US can satisfy the above, venue is proper in any district in which any Δ is subject to PJ o Residency for purposes
 People – residency determined by domicile
 Non-corporation business – resident of all districts in which is subject to PJ
 Corporations – reside in any state district in which its contacts are sufficient to subject the corporation to PJ
 NOTE - these are slightly different than the residency/citizenship rules for diversity citizenship
The General Fed. Venue Statute

28 USC §1391(b) defines which fed. Districts are proper venues

(b) venue in general – A civil action may be brought in – o (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; o (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; OR o (3) if there is no district in which action may otherwise be brought as provided in this section, any, judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action
 more than one venue of court may be proper venue.

(1) assumes the defendant is not greatly inconvenienced, (2) a district located where “a substantial part of the events or omissions giving rise to the claim occurred” the district is likely to be an efficient and convenient forum for the lawsuit

Focuses no specific federal districts – not entire states
The Meaning of “Resident” under Subsection (1)

2011 – Congress amended 28 USC § 1391 (c)(1) – provides that “for all venue purposes… a natural person, including an alien lawfully admitted for permanent residence in the US, shall be deemed to reside in the judicial district in which that person is domiciled.” o For purposes of subsection (1) – a person will be considered to reside in the state where she is domiciled

Corporations & Other entities – 1391(c)(2) & (d) offer guidance – READ THEM TOGETHER; o (c) – residency for all venue purposes –
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 (2) an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business
 (d) Residency of corporations in States with multiple districts. – for purposes of venue under this chapter, in a state which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts
The Meaning of “Substantial Part” under Subsection (2)
UFFNER v. LA REUNION FRANCAISE 244 F.3d 38 (1 st cir. 2001) Torruella
Fire broke out on P’s yacht about 1 mile off coast of Puerto Rico -- P filed suit in Federal
District Court for PR. Insurance claim denied due to absence of a current out of water survey. Defendants filed motion to dismiss for lack of SMJ, failure to state a claim, improper venue. District Court granted motions for lack of PJ and improper venue.
○ PR long arm statute -- Ds lacked sufficient minimum contacts w/ forum for PJ
○ Contract claim unrelated to district of PR
● ISSUE: Should a court dismiss a case for lack of venue if the single triggering event (in this case the contract) did not occur in the forum?
● HOLDING: No -- venue looks at the entire sequence of events giving rise to a claim -- all that must occur is a “substantial” event in the forum. In this case, the loss of La Mer in PR is substantial.

The court asserts that as long as what happened in the district was an important part of the
“sequence of events” or historical predicates” giving rise to the case, venue is proper in that district

Even if a company waives its personal jurisdiction objection the company can still object to venue

Although the motion may require an examination of where the corporate defendant is subject to personal jurisdiction, the defendant is not raising an objection to personal jurisdiction
The Fallback provision

Subsection (3) applies to rare cases where neither subsection (1) nor subsection (2) specifies a proper venue. In such a case – a court may “fallback” to subsection (3) to find its proper venue
Specialized venue statutes

Section 1391(a) specifies where venue is proper in all civil actions “except as otherwise provided by law”

Congress has passed a number of specialized venue statutes that apply in certain cases
20


28 USC §1441(a) – supplements 1391- requires removal of a state case to fed. District that covers the geographic area where the state court sits
Venue Transfer
 two-types of venue related motions o a defendant can make a motion that asserts that the case was filed in an improper venue o If the motion has merit 28 USC §1406 authorizes a judge to dismiss the case or transfer it to a fed. venue where the suit could have been brought o 28 USC §1406 – cure or waiver of defects
 (a) the district court of a district in which is filed a case laying venue in the
 wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought
Second type – contends that although venue is proper in the court where lawsuit was filed – there is a more appropriate federal district where the case should be litigated o 28 USC §1404 Change of Venue
 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented

While there is no statute allowing fed. Court to dismiss case that was filed in proper venue – the fed. Courts have retained their common law authority to grant such dismissals – forum non
conveniens
Motion to Transfer
Cases Filed in the Wrong
Venue
28 USC § 1406
Cases filed in the Correct
Venue
28 USC §1404
Motion to Dismiss 28 USC § 1406 & FRCP Forum non conveniens
12(b)(3)

Transfers and Dismissals under §1406
(common law doctrine) o Section 1406 authorizes fed. District court to dismiss a case that was filed in an improper fed. Venue or transfer it to a fed. Venue where the suit could have been brought o DISMISS OR TRANSFER
 A transfer (done by judge) is usually in the “interest of justice” because a transfer will save the plaintiff the time and expense of having to refile the claim in another forum

Simply sends case file to clerk of another district

Transfer – case is considered to have been filed on date when it was filed in the original court

Judge can only transfer within the same court system
 If the court dismisses the case – plaintiff has to refile and pay a filing fee & ensure proper service on defendant

Statute of limitations may run out before plaintiff refiles
21


State cases be removed to fed. Court, but the state court itself doesn’t have any control over that process o Defendant – files notice of removal in fed. Court & court decides whether to keep case or remand it back to state court
 State court – cannot “transfer” a case; fed. Process called removal not transfer

Venue offers protection to the parties – making it more like personal jurisdiction o For this reason - a party is considered to waive a motion to dismiss for lack of proper venue unless the motion is made at an appropriate time, usually quite early in the case

Section 1404 transfers o Filed in a proper federal venue, but another fed. District is a more convenient location to conduct the litigation o Defendant can move to transfer case to another district under §1404(a)
 Assuming plaintiff doesn’t consent to transfer – court will ask: (1) whether the case “might have been brought” in the other venue, and if so, whether transferring the case to that venue would promote the convenience of the parties and witnesses as well as interests of justices

While a defendant is usually the party to raise objection to venue, but a plaintiff can move to transfer as well

First determine whether proper venue pursuant to §1404. If not §1406. 1404 doesn’t authorize a dismissal it only authorizes a transfer

Consenting to venue o Parties can waive objection to venue during litigation such as by failing to raise the issue at an appropriate time o Parties can also consent to litigate in a particular venue before the dispute even arises
 Forum selection clauses are given considerable weight in court

Even if a forum selection clause requires the suit to be heard elsewhere, a court is a proper venue if it is proper according to §1391(b) o There are some limits on transfer authority – the transferee court must be a proper venue but §1404 specifies that the transferee court be one in which the case “might have been brought”
 Meaning: if the case had been originally been filed in the transferee court, that court would have been a proper exercised both personal and subject matter jurisdiction o Case may be transferred from one federal district to another if the transferee district is one in which the case could have been filed originally; any party may move to transfer
 Can transfer to any district with proper venue, PJ, & SMJ o If venue in original district is proper – transfer is discretionary
 Court may order transfer based on convenience of parties and witnesses, and/or in the interest of justice o Court’s discretion is based on both public & private factors:
 Public factors: what law applies, which community should be burdened with jury service, ease of enforcing judgment, judicial efficiency, and local interest
 Private factors: convenience (e.g. location of witnesses, evidence), where the claim arose
22

o If venue in original district is improper – court may transfer in the interest of justice or dismiss the case o Choice of law – transferee court applies laws of the original court, regardless of which party sought transfer
 Exception: transferee court will apply its own laws if original venue was improper

Forum Non conveniens – Common law dismissals o If there is a more appropriate court system that should hear a case (e.g. separate judicial system, foreign country), the court in which the case was filed may decline to exercise jx despite jx being proper the case was filed may decline to exercise jx despite jx being proper
 i.e. under forum non conveniens, a court may dismiss an action if a far more appropriate venue exists
 often arises where a foreign court would be more appropriate o Factors:
 Court evaluates convenience based on same public and private factors as for venue transfer

Requires a strong showing of public and private factors to dismiss or stay the proceeding o Options for court upon granting forum non conveniens:
 Stay the proceeding, OR
 Dismiss the case

Usually dismissed without prejudice to allow P to sue in the more appropriate forum

Dismissal often occurs b/c transfer to the more appropriate forum is impossible (e.g. , b/c it is in a different judicial system or country)
Piper Aircraft co. v.
Reyno Central holding: a forum non conveniens dismissal is permissible even when the law of the foreign forum would likely give the plaintiff a less desirable remedy than the plaintiff could get in fed. Court. The court reasoned that a contrary holding would effectively eliminate the forum non conveniens option in fed cases.
A dismissal might be improper if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all

Section 1404 – permits a federal court to transfer a case to a more convenient fed. venue = the statute however does not authorize a court located in a proper venue to dismiss a case on venue grounds

Courts recognize their common law power to dismiss such a case under the doctrine of forum non conveniens

Forum non conveniens fills the statutory gap of 1404 – when there is proper venue but a foreign court might be more convenient o Can be unfair to plaintiff unless plaintiff can pursue the case in the alternative venue
23

o Forum non conveniens dismissal is premised on the assumption that plaintiff can in fact refile the case in the foreign venue

Dismissal is typically granted if the court can avoid prejudice to the plaintiffs by placing conditions on the dismissal o Example - Fed. Court could grant the motion on the condition that the defendant waive any statute of limitations dfense that might exist in the foreign forum o While the fed court can condition a dismissal on the def’s willingness to waive certain objections to suit in the foreign forum – fed. Court lacks the authority to order the foreign court to take any action in the case o §1404(a) & forum non conveniens both weigh public and private interest factors
 Private interest factors: Evidence location, witnesses, 3 rd party defendants
 Public interest factors: applying foreign laws, confusing the jury
Transfers and Dismissals in State Court

Many states mirror 1406 and authorize the dismissal of cases that are filed in the wrong venue or authorizae the transfer of such cases to proper venues within the state

Most states also have a mirror image of 1404 and forum non conveniens

Service of Process o Service of process is the delivery to Δ of the summons and complaint, which satisfies the notice requirement o Service requirements: o Δ must be served with:
 Summons – formal notice of the suit

Must identify the court and the parties, be directed to Δ, state the name and address of P’s attorney, tell Δ when/where to appear; must also bear court’s seal and be signed by court clerk
 Copy of the complaint o Who may serve – any non-party aged 18 or older o Timing – service must be within 90 days of filing the case o Location – Δ must be served anywhere in the forum state o Exceptions to service of process requirements:
 Presence due to separate case – Δ cannot be personally served if in the state solely as a party or witness in another civil case
 Subsequent papers – subsequent papers filed with the court (e.g. answers, discovery requests) do not require formal service

May be mailed to a party or party agent

Methods of Service o the appropriate method of service of the summons and complaint depends upon the type of Δ – individual or business o Individual – may use any of the following methods:
24

 Personal service – delivering summons and complaint to individual personally
 Substituted service – left with third party at Δ’s “usual abode”
 Service upon Δ’s authorized agent - (e.g. serving Δ’s attorney)
 Mail (if service waived; see below) – P sends by mail along with waiver form, which Δ must return
 Any other method permitted under state law – allowed if state is where federal court sits or where service is effectuated o Business – may use any of the following methods:
 Any method prescribed above for serving an individual
 Delivering summons and complaints to an officer, managing agent, or general agent
 By mail, if authorized o Waiver of service – P may request that Δ waive formal service by mailing Δ the complaint along with a formal written request
 If Δ denies or fails to respond, P must serve through other methods
 Waiving service gives Δ additional time to respond to complaint
25

A Complaint in Federal Court Must Contain:
 A statement of SMJ
 A short and plain statement of a claim showing that the pleader is entitled to relief
 under any applicable law (whether or not she has identified it in the complaint)
 A prayer for relief
 a pleading is a paper containing factual assertions (allegations) that support jurisdiction

 and legal claims in a civil lawsuit (8(a)) defendant’s first pleading = answer if a defendant includes in his answer a claim against the plaintiff or against a codefendant than those parties may also file an answer o grounds for subject matter jurisdiction Rule 8(a)(1) o demand for relief/prayer 8(a)(3)
 Rule 8(a)(2) – stresses that you need only make a “short and plaint statement of a claim showing that the pleader is entitled to relief”
Heightened Pleading:
 Required only for matters required by Rule 9(b) or by statute to be pled with more specific factual detail
The courts lack the authority to require heightened pleading on their own initiative or by judicial interpretation
Reasons for heightened pleading: o Fair notice o Protecting reputation - this is now outdated o Protecting the public’s money o Suspect plaintiffs
 Expressio unius est exclusio alterius - the express mention of one thing excludes all
 others - if congress meant for Rule 9 to apply generally, they would not have specifically called out fraud and mistake
Rule 9(g) requires that “special damages” be specifically stated -- these are damages one would not expect to result from an incident, for example, a later miscarriage after a car accident -- this helps D from being surprised in court
Leatherman v. Tarrant County Narcotics Intel & Coordination Unit (SCOTUS, 1993, Rehnquist
Opinion)
Plaintiffs suing TCNICU for civil rights violations during a narcotics raid -- alleged the officers killed a dog, assaulted them, etc. At the time, municipal gov’s weren’t liable for civil rights violations under respondeat superior (principal responsible for acts of agents) so Ps sued saying a municipal custom or policy caused the injuries (poor training for agents)
26

5th cir. Argues that degree of specificity required in a pleading varies depending on cases and a P must do more than plead a single instance of misconduct -- this standard is impossible to square with the liberal system of “notice pleading” set up by the FRCP. Particularity requirement is only used in 2 cases under Rule 9(b) - fraud or mistake -- it’s not up to the courts to rewrite the rules to include claims against municipalities here.
The (Still) Evolving Standard of Plausible
Ashcroft v. Iqbal (SCOTUS, 2009, Kennedy Opinion)
Iqbal suing AG Ashcroft and FBI Director Mueller for illegal detention based on his religion, race, and/or national origin. District court denied D’s motion to dismiss on ground that there was no set of facts on which he would be entitled to relief against them (Conley).
P must plead sufficient factual matter to show that Ds adopted and implemented detention policies not for a neutral, investigative reason, but for the purpose of discriminating on account of race, religion, or national origin. There is governmental immunity -- so P must prove that it was Ds specifically. Two major tenets of Twombly -- two prong approach
Two Prong Twombly-Iqbal Test – relevant in regards to rule 8
○ 1) Are the allegations well-pleaded?
■ Must be more than mere conclusory statement, more than threadbare recital of elements of cause of action
○ 2) Are the well-pleaded allegations plausible?
■ Court must next determine whether they plausibly give rise to an entitlement to relief -- context specific task, but not limited to antitrust -- Twombly was based on meaning of Rule 8, which applies to all civil cases



Twombly + Iqbal Test
 Every pleading problems starts with the substantive law – “beings by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity”
“are the allegations well pleaded?”
 In deciding whether a pleading states a claim showing that the pleader is entitled to relief, the court must still accept as true the factual allegations of the complaint.
 SC has added a caveat: the court should accept as true only the “well-pleaded allegations” after that the court can “assume their veracity”
 Well pleaded- More than a “mere conclusory statement” – more than just a
“threadbare recital of the elements of the cause of action”
Are the well-pleaded allegations plausible?
27

 After the district court has identified and taken as true a complaint’s well-pleaded allegations, it must “then determine whether they plausibly give rise to an entitlement to relief”
 This is a “context-specific task” as the court of appeals has concluded in Iqbal, but not limited to antitrust claims. Twombly – the court emphasizes – was based on the meaning of Rule 8, which governs pleading in all civil actions
 CRITIQUES OF PLAUSIBLE PLEADING

The plausible pleading standard may “deny access to court to plaintiffs and prospective plaintiffs with meritorious claims who cannot satisfy those decisions’ requirements either because they lack the resources to engage in extensive pre-filing investigation or because of informational asymmetries

By relying on “judicial experience and common sense” rather than a factual record that has not yet been developed, the Iqbal majority gave expression to its own belief that
Ashcroft and Mueller didn’t harbor any discriminatory intent

Judgments come awfully close to deciding facts that plaintiffs would otherwise be entitled to try to a jury
 DEFENSES of Plausible pleading

They argue that it was a corrective measure for pleading system made too costly by the explosion in the amount and therefore cost of formal discovery o Court suggested that overly generous pleading standards would permit overly expensive discovery, creating unfair settlement pressure on the defendant

The plausibility standard is not a departure from the Federal Rules, but rather a return
 to them to make the foregoing practical correction

The Twombly decision merely reinforces the importance of the Rule 8(a) pleading standard as the gateway to further proceedings under the generous discovery provisions of the Federal Rules
EMERGING trends or themes after Twombly-Iqbal?

Defendants make more rule 12(b)(6) motions

Plaintiffs are pleading more specific facts – this effort may explain why the rate of granting Twombly-Iqbal motions has not risen more across the board. Also means that
TI has increased the cost of litigation to plaintiff’s or “created greater symmetry between the plaintiff’s and the defendant’s litigation costs… reducing the scope for extortionate discovery”

Twombly-Iqbal is context specific – the more complex the claim, the higher the plausibility bar

Some courts say that the plausibility standard should be applied to the pleadings as a whole and not to each discrete allegation

The cases are hopelessly unclear about what makes an allegation “conclusory”
Chibundu on Iqbal:
Wide agreement on all of the below:
● P must set out some facts, that if taken as true, would satisfy the elements of the claim
● You take the P’s statements of the facts as true UNLESS you believe the statement of facts are so ridiculous they cannot be taken as true (little green monsters test in Iqbal)
● Elements are a matter of substantive law
● You can’t cite verbatim the statutory elements of a right and rest on that mere assertion, must put on some facts or information
28

Some disagreement on the below:
● P’s obligation is to plead facts that nudge the claim from the possible to the plausible
● According to Kennedy in Twombly, judges are supposed to bring their experiences with them in deciding plausibility
● How much do we take into account the cost of post pleading? (Discovery)
Well-Pleaded Complaints:
 An allegation is not well-pleaded if it is “merely conclusory” -- no more than a naked recital of the elements of a cause of action
Rule 12(b)(6) Motions:
 Test the sufficiency of a complaint for failure to state a claim
 Under a 12(b)(6) motion, court must take all well-pleaded allegations as true and will consider only those allegations within the four corners of the complaint (or incorporated therein by reference)
 A court should grant a 12(b)(6) motion if, assuming the truth of the well-pleaded factual allegations, it determines they do not plausibly show an entitlement to relief under the applicable law. It is not enough that such allegations are equally consistent with an
“innocent” explanation as with a liability-creating explanation.
Elements Pleading & Fact Pleading
 P in federal court is not required to plead factual allegations respecting each and every element of a theory of liability under an applicable law (elements pleading), but this is good practice.
 Rule 8 does not require fact pleading, but pleading specific facts in sufficient detail to suggest the plausibility of liability under applicable law is wise, if not required, after
Twombly and Iqbal
What is a Pleading?
 A pleading is a paper containing factual assertions (allegations) that support JX and legal
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 claims in a civil lawsuit
First pleading is a complaint: o o
Stating grounds for federal SMJ,
Short and plain statement of a claim showing entitlement to relief, and o Demand for relief
Most difficult part is stating claim for liability
Defendant’s first pleading is an answer - can be a counterclaim, crossclaim, etc.
Historic purposes of pleading: o Giving notice of nature of claim or defense o o
Stating facts
Narrowing issues for litigation o Helping court throw out bogus claims
How much a party has to plead depends on the relative weight the procedural system applies to each of the above factors - until recently, notice was most important
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Chibundu on Pleadings
● Pleadings serve 5 conceivable functions, which apply whether we are talking about a complaint or an answer:
○ Giving notice of position of parties
○ Statement of relevant facts
○ State parties’ legal rights
○ Weeding out weak claims and non-claims from stronger claims
○ Structures the remainder of the litigation
● Code pleading founded on notions that you have to provide facts, but they can’t be conclusory or provide evidence
● Federal laws saw notice giving as primary function, while code pleading was more focused on weeding out claims
● Conley said as long as other side knows what it’s been accused of, we don’t need more
● Rule 8(d) tells you Ps can plead alternative claims, technical forms of pleading are not required
● Rule 8(a) tells the P what they must do - the language here says a P need state only a short and plain statement showing P is entitled to relief (8(a)(2)), but there might be circumstances in which a P might need to say more. Rule 9 spells out the circumstances
● Rule 9(b) says claims of fraud or mistake require heightened pleading, must be more than
8(a)(2) requirement of short and plain statement -- need more facts, more basis of finding
● In 2007, SCOTUS overruled Conley in Bell Atlantic Corp. v. Twombly -- anti-trust suit
○ Court said “plain statement” must possess enough heft to show that the pleader is actually entitled to relief
○ Cannot just state elements of the generic claim -- too conclusory
○ Conley had a “no set of facts” standard -- overturned
○ Court said it did not require heightened pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face
● Critics said Twombly resurrected code pleading
● Raised the threshold of sufficient pleading from the possible (statement of claim that COULD entitle pleader to relief) to the plausible (if still short of probable)
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Complaint o The complaint is the initial pleading in a lawsuit, filed by P, which formally begins an action o Requirements – complaint must contain:
 Statement of jx – short and plain statement of the grounds upon which the court has jx over the parties and claims
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Why the court in which the complaint was filed has jx
 Statement of the claim – a short and plain statement of P’s claims, showing that P is entitled to relief
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Notice pleading standard – complaint must give enough information to allow the adverse party to be on notice and make a reasonable response o Detailed facts are not required; allegations must only be sufficient for the court to plausibly infer that Δ could be liable if allegations are true
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Exceptions – certain claims/issues must be pleaded with particularity, including o Fraud or mistake
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o Special damages o Judgments or official documents upon which the pleading party will rely
 Demand for judgment for relief sought – description of relief sought by P
(e.g. money damages, injunction, etc.)
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Answer o Δ’s response to P’s complaint, in which Δ states defenses to each claim asserted and admits or denies each of P’s claims
 Defense can be pleaded in the alternative
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E.g. in breach of K claim, D can deny K existed but also answer that if a K did exist, Δ performed under the K o Timing – must be filed within 21 days of service of process (unless Δ waived service), or
14 days after a ruling on a rule 12 motion o Counter claims – Δ may raise counterclaims against P in Δ’s answer
 Δ must raise compulsory counterclaims or otherwise the counterclaim will be deemed waived
 Δ may raise permissive counterclaims, but is not required to do so o Rule 12 defenses – Δ may raise certain affirmative defenses in her answer rather than filing a separate Rule 12 motion containing these defenses
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Answer requirements o Requirements – answer must: o Respond to allegations of the complaint – Δ’s available responses:
 Admit allegations
 Deny allegations
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Failure to deny can constitute admission on any issue except damages
 State that Δ lacks sufficient information to admit or deny allegations o Raise affirmative defenses – Δ must explicitly assert certain defenses in his answer; otherwise they will be deemed waived, including the following:
 Contributory negligence
 Claim preclusion
 Statute of frauds
 Fraud
 Statute of limitations
 Self-defense
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Rule 12 Motions o Δ may attack P’s complaint through a Rule 12 motion, which can be used for a variety of reasons, but is most commonly deployed by Δ to attack jx and/or argue that P’s answer fails to state a claim o Rule 12(b) defenses:
1.
Lack of SMJ
2.
Lack of PJ
3.
Improper venue
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4.
Insufficiency of process
5.
Insufficiency of service of process
6.
Failure to state a claim
7.
Failure to join a necessary party o 2-5 – these defenses are waived if not included in D’s Rule 12 motion, provided they were available o Rule 12(b) defenses – may be raised by motion or in the answer o Motion for more definitive statement (12(e)) – if complaint is so vague or ambiguous that Δ cannot reasonably prepare a response, Δ may move for a more definitive statement from P o Motion to strike (Rule 12(f)) – Δ may move to strike from the complaint (or court may strike on its own) any redundant, immaterial, impertinent, or scandalous material
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Δ can respond by:
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Doing nothing, and risking an entry of default or default judgment
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Pre-Answer Motion, Moving to dismiss under Rule 12
 Answering
 These options are exactly the same for any party, including those sued by crossclaim, counterclaim, interpleader, etc.
Entry of Default:
● A D who fails to respond to the complaint within the time limit set by the Rules (currently 21 days) is subject to an entry of default when that failure is shown by affidavit or otherwise.
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Rule 55
 Authorizes default judgments if the non-defaulting party and the court carefully follow the prescribed procedures
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Doing Nothing – The Default Option
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Within 21 days after service of summons – defendant must serve an answer or motion under 12
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FRCP do not require a D to respond affirmatively in any way to a complaint, they spell out the consequences of NOT responding, which can lead to a default judgment
 Rule 55 authorizes default judgments if non-defaulting party and court carefully follow prescribed procedures
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Might be “judgment proof” -- have no assets
 Or might be gambling
 Ds can file a motion to dismiss for:
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Lack of SMJ
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Lack of PJ
 Improper venue
 Failure to state a claim (12b6 motion)
 Insufficient process or insufficient service of process
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Ds can file an answer -- pleading that admits or denies factual allegations in the complaint, sets out defenses, and if D has some, asserts counterclaims or crossclaims
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Rule 8 sets forth specific requirements for admissions and denials; provides an illustrative list of affirmative defenses, which into new matter outside original complaint
Virgin Records America, Inc. v. Lacey P suing D for illegally downloading music against copyright. P served process, which was received by D’s son.
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A court deciding a motion for a default judgment will typically require that the record show that proper service was made
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RULE 55 o Default is disfavored – the rule makes it easy to set aside entry of default “for good cause.”
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A default judgment is a final judgment on which the plaintiffs and others may have relied o Setting it aside may be prejudicial to such parties, especially when some time has passed since its entry o When deciding to set aside a default judgment on grounds of mistake or neglect, the courts almost always consider whether the default was willful, whether setting it aside would prejudice the plaintiff, and whether the defendant has any meritorious defenses
 Moving to Dismiss – Rule 12 Motion Practice
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The Rule 12 Motions o 12(b) provides a handy checklist of the most common defenses that can be raised by a motion to dismiss o 4(e)(2)(b) – process served to “someone of a suitable age and discretion” / o 12(b)(5) - “insufficient service of process” o 12(b)(6) – failure to state a claim o 12(e) and 12(f) – motions available to challenge a complaint
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Amending pleadings o Once a pleading is filed, parties may amend their pleadings subject to certain restrictions
 Parties may always amend once as a matter of course
 Additional amendments may be granted with consent of other parties or court permission (i.e., amendment without right) o Amendment as a matter of course – may occur either:
 Within 21 days of service of the pleading to be amended, or
 If a pleading requires a response, within 21 days of service of the responsive pleading or pre-answer motion (e.g., Rule 12 motion)
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E.g., if Δ answers P’s complaint, P has 21 days from service of the answer to amend the complaint o Amendment without right – after one amendment, a party may only amend the already-amended pleading with either:
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 Written consent of the adverse party, or
 Leave of court (i.e., court permission)
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Leave of court must be sought through a motion and will be granted freely when justice requires (lenient standard) o Note – a party may seek to amend pleadings throughout the litigation, including at trial
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Amending Pleadings: Relation Back o When a party amends a pleading to add a new claim or new Δ after the statue of limitations on the claim has run, the new claim will be allowed if it relates back o Requirement – a new, time-barred claim will be allowed if it arises from the same transaction or occurrence set forth in the original complaint
 E.g., P files a fraud claim against Δ1; months later, P amends the complaint to add an embezzlement claim arising from the same incident, even though the
SOL has run on the new claim
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Embezzlement claim will be allowed under relation back doctrine even though SOL has run b/c it arises from the same transaction or occurrence as the fraud claim o New or substituted Δ – if the amendment adds or substitutes a new Δ, it will relate back if:
 1. Amendment concerns the same conduct, transaction, or occurrence as the original pleading; and
 2. Within 90 days of filing the amendment:
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New Δ knew of or received notice of the action, and
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New Δ knew or should have known that, but for a mistake, she would have been named originally
 Applies when p sued the wrong Δ first, but the right Δ was aware of the mistake
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Rule 11 Certification & Sanctions o Rule 11 requires the filing attorney or pro se party to sign all pleadings, written motions, and other papers, which certifies the filing is not improper or frivolous, and that contentions and denials have or will likely have evidentiary support o Certification – signature acts as certification that, to the best of signors knowledge, after a reasonable inquiry:
 Filing is not for an improper purpose (e.g. harassment, delay, to increase litigation costs)
 Legal contentions are non-frivolous and warranted by law; and
 Factual contentions and denials have or are likely to have evidentiary support o Sanctions – Court may issue sanctions for violations, either on its own initiative or a party’s motion
 Safe harbor – Rule 11 motion for sanctions may not be filed until 21 days following service of the offending document
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Offending party may withdraw the document or remedy the problem
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If not remedied or withdrawn, motion can be filed
 Hearing required – court must give an attorney or party a chance to be heard before imposing sanctions
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JOINDER: overview o Joinder refers to joining two or more legal issues or parties together in a single suit
 Purpose is to further judicial efficiency and avoid courts hearing the same issues from the same parties multiples
 Joinder can be either compulsory (i.e. waived if not filed) or permissive (not waived) o Claim joinder – a party asserting or defending a claim may bring additional claims; claim joinder devices:
 Counterclaim – claim filed by Δ against P
 Cross-claim – claim filed by a party against a co-party (e.g., Δ1 asserts crossclaim against Δ2) o Party joinder – a party asserting or defending a claim may join additional parties; party joinder devices:
 Joinder – P joins additional Ps or Δs to her case
 Impleader – Δ brings a third party into a lawsuit
 Intervention – third-party seeks to join a pending lawsuit
 Interpleader – property holder initiates suit between two or more claimants to property
 Class action – individual or smaller group represents a larger group
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Counterclaim o A counterclaim, a type of claim joinder, is an offensive claim filed by Δ against P, often in response to P’s complaint
 May be included in Δ’s answer
 Counterclaims are either compulsory (required or otherwise waived) or permissive (not waived if not filed by Δ)
 JX – Δ must ensure that the court has jx to hear any counter claim
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Note – compulsory counterclaims will almost always have supplemental jx o Compulsory counterclaim – claim by Δ against P that arises from the same transaction or occurrence as one of P’s claim
 Must be filed in Δ’s answer or it will be waived (i.e., Δ cannot assert it in a separate action at a later time)
 Compulsory counterclaims will almost always have SMJ b/c of the same transaction or occurrence requirement o Permissive counterclaim – claim by Δ against P that does not arise from the same transaction or occurrence as any of P’s claims
 Can be litigated together with P’s claim
 May be filed with Δ’s answer to P’s complaint or can be asserted in a separate action by Δ
 Must have independent basis for SMJ
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Cross-claim o A cross-claim, a type of claim joinder, is an offensive claim asserted by a co-party against another party
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 E.g., P sues Δ1 and Δ2; Δ1 may assert a crossclaim against Δ2 o Requirements – same transaction or occurrence
 Cross-claims must arise from the same transaction or occurrence as the underlying action
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Never compulsory, unlike counterclaims stemming from the same transaction or occurrence
 i.e., if a party does not file a cross-claim, they do not waive the opportunity to raise the claim at a later time o Jurisdiction – will almost always have supplemental jx
 Cross-claims must have an independent basis for SMJ, but they will almost always satisfy the supplemental jx requirements b/c they must arise from the same transaction or occurrence
Permissive Joinder o Permissive joinder is a type of party joinder that allows P to join other Ps and/or to join additional parties as Δs to P’s case o Joinder of Ps – original P may join new Ps if:
 They assert any right to relief arising out of the same transaction or occurrence as P’s claim: and
 Any question of law or fact common to all Ps will arise in the action
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E.g. after bus accident, all injured passengers join as Ps; common issue is driver’s negligence; other issues (e.g., damages) are tried individually for each P o Remember that this is permissive joinder; as such, new Ps are not required to join original P o Joinder of Ds – original P may join new Δs if:
 The right to relief asserted against the new Δ arises out of the same transaction or occurrence as P’s original claim; and
 A question of law or fact common to all Δs will arise in the action
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P is not required to join new Δs; this is permissive o Note – distinguish permissive joinder, which involves joinder by P, from impleader, which involves joinder by Δ
Compulsory joinder o Compulsory joinder is a type of party joinder; a party absent from a suit may be joined in the suit if deemed necessary or indispensable o Necessary/indispensable parties – absentee parties are necessary or indispensable if either:
 Incomplete relief – without absentee, court cannot grant complete relief
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Consider whether multiple suits might follow if absentee is not made a party; if so, likely cannot grant complete relief
 Impaired interest – absentee has a legal interest that may be impaired or impeded or an interest that creates a risk of multiple or inconsistent rulings and obligations
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o REQUIREMENTS – absentee can be joined as a necessary party if:
 There is PJ over the absentee; and
 Joining the absentee will not destroy diversity o Failure to join necessary party – if a necessary party cannot be joined, court may dismiss the case; court looks at these factors:
 Is alternate forum available?
 What is likelihood of prejudice to parties or others if case goes forward?
 Can court shape potential relief to avoid prejudice?
 Would P have an adequate remedy if case dismissed?
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Impleader o Impleader, a party joinder device, allows Δ to bring a 3 rd party into a lawsuit who may be liable to Δ for all or part of P’s claim
 3 rd party becomes a Δ in the suit, known as a third-party Δ (TPD)
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Example: P sues Δ1 car manufacturer for accident caused by tire blowing out; Δ can join Δ2 via impleader (Δ2 is a TPD)
 Note – when impleader occurs, P is not suing TPD directly; rather, Δ is trying to pass any judgment against him onto the TPD, who may either attack P’s claim or
Δ’s claim against TPD o Requirements – court must have PJ over impleaded TPD
 Court will usually have supplemental jx b/c impleader situations almost always arise out of the same transaction or occurrence o Additional claims involving TPD – once TPD is joined, TPD may make claims of her own against other parties as long as SMJ exists over each claim and the court has PJ over additional parties
 Original P may assert claims against TPD arising from the same transaction or occurrence as P’s original claims against Δ
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Intervention o Intervention is a party joinder device by which a third-party absentee may seek to join a pending lawsuit, either as a P or a Δ o Intervention as a right – intervening party must be allowed if either:
 Party seeking intervention has an interest that will be harmed if not joined and no existing party will adequately represent that interest, or
 A federal statute confers an unconditional right to intervene o Permissive intervention – allowed in court’s discretion if either:
 Intervening party has a claim or defense that shares a common question of law with the underlying action
 Intervening party has a conditional right to intervene, or
 Intervening party is a govt. officer or agency and an existing claim or defense is related to the officer/agent, a statute, or regulation
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If any of the above exist, court may allow intervention o Jurisdiction issues – in diversity cases, interveners must establish independent SMJ; cannot use supplemental jx
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 o Intervention vs. compulsory joinder – intervention lets absentee join suit voluntarily; compulsory joinder forces absentee into suit
 Standard for admission via intervention is also more lenient
Interpleader o Interpleader is a form of party joinder that allows a property holder to initiate a suit between two or more claimants to the property
 Allowed under both federal statute and FRCP Rule 22
 Property holder = stakeholder
 Other parties with claims to the property = claimants o Rule 22 interpleader
 Complete diversity required – stakeholder must be diverse from all claimants; amount in controversy must exceed $75,000 o Statutory interpleader
 one claimant must be diverse from at least one other claimant
 amount in controversy must be $500 or more
 nationwide jx – service is proper on anyone in the US
 venue is proper in any district where any claimant resides o example – deceased had life insurance policy w/ DE corp having PPB in CA; claimants from NJ, NV, &CA all claim interests in deceased’s policy
 Rule 22 interpleader – improper b/c lack of diversity
 Statutory interpleader – proper b/c claimants are from different states
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Class Actions: Overview o Class actions are a joinder device whereby an individual or small group can represent a larger group (class), which shares a common interest, in a lawsuit o Class action characteristics:
 Usually involves Ps as a class, although Δs can also form a class
 Purpose is judicial efficiency – courts can adjudicate a common dispute at once rather than in numerous individual cases
 Class is represented by one or more class members
 Only class representatives must satisfy requirements for PJ, SMJ and venue
 Judicial approval is required for a case to be certified as a class action o Types of class actions – 3 primary types
 Anti-prejudice device
 Injunction or declaratory judgment
 Damages – most common type
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Class action certification, judgment & settlement o class actions are distinct from other actions b/c the class must be certified and there are special requirements for settlement and judgment o Certification:
 Court must determine before trial whether the case can proceed as a class action (i.e. whether to certify a class)
 If a class is certified, court must:
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Define the class (i.e., who can be a class member), the class claims, issues, and defenses
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Appoint class counsel – class counsel must fairly and adequately represent the class as a whole o Judgment – binding as to all absent class members, unless they opt out (if applicable) o Settlement
 Court must approve any settlement reached between the class representatives and the opposing party
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Settlement must be fair, reasonable and adequate
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Court will seek feedback from absent class members in deciding whether to approve or reject settlement
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Class Action certification requirements o There are 4 requirements that must be satisfied for a case to be certified as a class action
 Requirements mostly concern issues of due process and fairness o Requirements – the following four factors must be satisfied for a court to certify a case as a class action:
1.
Numerosity – class size must be so numerous that joinder of all individual members is impracticable a.
No exact threshold as to size requirement; generally met if joinder of each individual claimant is impracticable
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2.
Commonality – there must exist questions of law or fact that are common to the entire class a.
Common questions of law or fact must predominate over other issues, such that resolution of the case will generate finality for the entire class
3.
Typicality – claims or defenses of the representatives must be typical of the claims and defenses of class members as a whole
4.
Adequacy – representative parties and their counsel must fairly and adequately represent and protect the interests of the class a.
To determine adequacy of class counsel, court looks primarily at whether there are conflicts of interest between class members and class representatives and at competency of class counsel
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Jurisdiction & Class Actions o Court must have PJ and SMJ over class representatives; absent class members are not required to meet PJ and SMJ requirements o Personal jurisdiction – absent class members are not required to meet minimum contacts, relatedness, or fairness requirements
 PJ due process requirements are satisfied by reasonable and adequate notice to class members, an opportunity to opt out, and adequate representation o Subject matter jurisdiction
 FQJ – same rules as for individual cases
 Diversity jx – in determining citizenship and amount in controversy, court looks only to class representatives
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Diversity requirements satisfied if: o Class representatives are diverse from all opposing parties; and o Class representatives’ claims exceed $75,000
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Discovery: Overview o Discovery is a process by which parties must seek and exchange information about each others’ claims and defenses, and also seek such information from non-parties
 Conduct by and between parties; court helps facilitate process o What is discoverable? -material is discoverable if it is
 Non-privileged
 Relevant to a claim or defense; and
 Proportional to the needs of the case – factors include:
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Amount in controversy and resources of parties involved
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Importance of issues at stake in the case
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Whether burden or expense of proposed discovery outweighs its likely benefit o Process of discovery:
 Initiating discovery – parties must
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Meet and confer
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Provide initial disclosures
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Develop discovery schedule – court and parties develop scheduling order with deadlines for completing discovery
 Conducting discovery – involves numerous discovery devices, including depositions, requests for production, interrogatories, requests for admission, etc.
What is discoverable?
● Rule 26(b)(1) is generous -- authorizes discovery of any nonprivileged matter that is relevant to any party’s claim or defense, even if it would be inadmissible at trial, if it appears reasonably calculated to lead to the discovery of admissible evidence
● FRCP 26 and 36 establish scope of info that is subject to discovery and govern the methods by which parties can require disclosure of info. The FRCP de-emphasize and simplify pleading in part by shifting the burden of fact gathering and trial prep from pleading to discovery
Rule 26(b)(1) gives you the scope of discovery. Discovery request must be:
● Nonprivileged
○ Privileged info is usually a communication made in confidence during the course and in furtherance of a relationship that society has chosen to promote and protect (attorney/client, doctor/patient, priest/penitent)
○ Attorney work product is
○ The rules do not create privileges, they simply recognize them
● Relevant to any party’s claim or defense
● Proportional to the needs of the case
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○ First set of issues: is it terribly burdensome on the party to provide the info? Are there better ways of getting the information?
○ Second set: Even if the data is readily accessible, should one compel a party without a lot of funds to comply with a discovery request?
■ New rules limit the number of depositions you can take, the length of time in which you can take them — cost was clearly a factor in this decision.
What is privileged?
● Privileged matter is protected from discovery by an evidentiary privilege. Privileged info is usually a communication made in confidence during the course and in furtherance of a relationship that society has chosen to promote and protect (attorney/client, doctor/patient, priest/penitent). The rules do not create privileges, they simply recognize them (26(b)(1)).
Attorney Work Product Privilege
● Documents and tangible things prepared on behalf of a client in anticipation of litigation or trial enjoy protection from DY under 26(b)(3).
● Protection can be overcome if discovering party shows substantial need for work product to prove its case or defense in chief and undue hardship (beyond ordinary costs of DY) in obtaining the equivalent by other means.
● For work product to have been prepared in anticipation of litigation or trial, the litigation need not yet have begun. Instead, depending on the law of the circuit, it is enough if the product was primarily prepared with some specific claim in mind, to provide legal advice about possible claims, or prepared for primary purpose of litigation.
Testifying Experts, Non-Testifying Experts, & Consulted Experts
● Opinions held and facts known by a testifying expert (those acquired in her capacity as an expert) are discoverable.
● Opinions and facts known of a non-testifying expert are discoverable only on a showing that it is impracticable for the discovering party to obtain facts and opinions on the same subject by other means, such as hiring its own expert.
● If an expert is neither employed nor testifying, but was just consulted, the rules impliedly permit not discovery at all. (Omitted from rules).
● When the expert was a percipient (eyeball) witness, then DY is available as it would be from any such fact witness
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Privileged Material o Otherwise discoverable material that is privileged need not be disclosed during the course of discovery o Privileges recognized:
 Attorney-client
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 Work product
 Physician patient – protects information confidentially conveyed by a patient to a physician

Does not apply where patient’s condition is a legal issue (e.g. personal injury or malpractice claim)
 Psychotherapist/social worker-patient
 Clergy-penitent
 Marital communications
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Protects disclosure of confidential communications made during marriage (does not apply if communication was made before or after marriage)
 Journalism-source
 5 th amendment privilege against self-incrimination o Objections to discovery requests based on privilege must be stated with particularity
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Attorney-client privilege – communications between an attorney and client or the client’s representatives are privileged unless waived o To be protected, a communication must be made to facilitate legal services and intended to be confidential o Exception – does not apply to an attorney defending a malpractice claim brought by a client or where a client seeks legal services to further a fraud crime o Work product privilege – protects material prepared by or for an attorney in anticipation of litigation, can be qualified or absolute
 Qualified privilege: evidentiary (factual) material prepared for litigation purposes

Protected unless opposing party shows:
1.
Substantial need for material; and
2.
Material is not available through other means (e.g., testifying witness is unavailable but his attorney has a witness statement)
 Absolute privilege: material containing subjective thoughts of an attorney or party representative concerning the litigation o E.g., mental impressions, opinions, legal theories, etc. o Privilege cannot be overcome by need for information
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Mandatory disclosures o Parties are required to disclose certain information to one another during the course of the discovery process, irrespective of requests from the opposing party
 Initial disclosures- Under FRCP Rule 26(a), parties must disclose:
1.
Sources of discoverable information – all people, documents, and electronic sources likely to have discoverable information
2.
Damages – a computation of damages claimed in the case
3.
Insurance – any insurance agreement that may be used to satisfy all or part of a judgment
 Expert disclosures – at least 90 days before trial, parties must identify experts who may be used at trial and produce reports containing experts’ opinion, data used, qualifications, etc.
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 Pretrial disclosures – parties must give detailed information about evidence to be used at trial at least 30 days before trial

E.g., documents to be used as evidence, identity of witnesses to testify, etc. o If information will be used solely for impeachment purposes, it does not have to be disclosed
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Interrogatories, RFPS, & RFAS o Interrogatories, requests for production (RFP) and requests for admission (RFA) are written discovery devices o Interrogatories – written questions from one party to the other
 Typically used to ask about identity of documents and people who may have information related to claims or defenses
 Each question must be investigated and answered or objected to by the responding party
 Objections: grounds for objecting to an interrogatory are governed by rules of evidence; objections must be specific o RFPS – written requests to a party to make documents or other things within the party’s control available to review o RFAs – requests to a party to admit information or allegations
 If a party admits information, it does not have to be litigated at trial; opposing party can show the jury the admission
 Responding party can admit, deny or state that it lacks knowledge
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Depositions o Depositions are oral proceeding in which an attorney may examine party or non-party witnesses under oath
 Testimony is sworn and subject to penalties for perjury
 Deponents can also be required to produce documents o Deposing parties – a party may be called for deposition via a notice of deposition
 If a party to be deposed is a business, individuals that may be deposed include officers, directors, and managing agents o Deposing non-parties – non-parties may be deposed, but must be subpoenaed
 Subpoena duces tecum – used to compel a non-party witness to bring documents to a deposition o Scope – may cover any issue within the scope of discovery
 Objections – deponent’s counsel may object to questions, but deponent is still required to answer

Exception – if objection is based on privilege (i.e., answering would reveal privileged information), counsel can instruct deponent not to answer
 Duration – limited to one day for seven hours
 Must seek court approval to take more than 10 depositions or depose the same party twice

Motion to compel & motion for protective order
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o During the course of discovery, parties may seek court intervention to compel production of withheld material (motion to compel) or protect the disclosure of certain material (protective order) o Motion to compel – a party can move for a court order compelling disclosure of requested material that the opposing party refuses to divulge
 Often arises where party holding information claims withheld materials are privileged
 Judges will call a hearing to determine whether material in question may be withheld o Motion for protective order – a party from whom discovery is sought may seek a judicial order i.e. a protective order, barring discovery of certain material
 Usually needed to prevent disclosure of material that is privileged, highly embarrassing, trade secret, and/or clearly outside the scope of appropriate discovery
 Standard – moving party must demonstrate good cause

Order can limit, condition, delay, or bar discovery of affected information
➽
Parties Themselves Are the First Control on Discovery
● 26(f) requires parties to meet on discovery early in a case to confer and negotiate about demands, responses, and disputes. Required to produce a plan for the court and to consult when disputes arise.
● 29(b) authorizes them to stipulate to changes in most of the DY rules.
➽
Responding to an Improper Request
● Parties can try to negotiate or narrow the request, make express objections in the time provided by the rules (usually 30 days), or seek court ordered limitations under 26(b)(2)
(authorizing a cost-benefit analysis by the court), and/or a motion for a protective order under 26(c).
● If a responding party believes the requesting party violated the certification requirement of 26(g), it may seek sanctions under that rule.
● “Silent objections” or self-help by non-production are never proper options under the rules. 26(b)(5) requires an objecting party to “expressly make the claim” with a proper foundation.” You must object in writing.
➽
Sanctions Process
● Ordinarily two steps: (1) when a responding party expressly makes objections to a DY request, the requesting party may move for a norder compelling DY under 37(a). That motion places the objections before the court to resolve by issuing an appropriate
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order. (2) If the responding party violated such an order, then the requesting party may seek sanctions.
● If the party from which DY is requested “stonewalls” (fails to make any response, fails to attend a deposition, etc.) the requesting party may bypass the motion to compel and go straight for sanctions under 37(d). In such a case, no excuse for lack of response that DY sought was objectionable
➽
Required Initial Disclosures
● In all but a small number of cases, a party must make initial disclosures of info that it may use to support its claim or defenses, but not info that other parties will use to make their cases or info it plans to use solely to impeach adverse witnesses
● Disclosures of info about tst
➽
Typical Timeline for Initial Discovery
(1) Filing
(2) Service
(3) 26(f) meet and confer
○ Rule 26(f) — sometime after the D has answered the complaint (assuming there are no pending dispositive motions) the court holds a required pre-trial conference, where parties put together a plan of action for the litigation. The parties must confer with each other. P typically takes the initiative. Integral part of this is discussing schedule of discovery.
(4) 26(a)(1) required disclosures & 26(f) proposed plan
○ Rule 26(a) — within 14 days of the pretrial conference, the parties must each provide to the other side certain info called required disclosures. This info is 1) related to the claim, and 2) necessarily relevant. Must be provided without the other party having to ask for it. This info is very skeletal — just enough to show the info the disclosing party may use to support its own claims or defenses. The following is required:
■ Name of persons who have info that the providing party will rely on to prosecute its claims or defenses
■ Expert witnesses and their reports at least 90 days before trial
■ Lists of witnesses they expect to call and exhibits they intend to intro at least 30 days before trial
■ Documents they will rely on
■ Any insurance policies that may be relevant to paying for the damages
● Rule 37(c)(1) provides for self executing sanction w/o need for a motion against a party who fails to make a required disclosure w/o substantial justification
(5) 16(b) scheduling and conference order
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➽
Subsequent Discretionary Discovery
● Rule 26(c) — allows for the subsequent discretionary discovery using the following five mechanisms (also does not need to be asked for by the other side, the party using the witness has an obligation to provide info to the other side).
● Issue with interrogatories and depositions is that you give notice to the other side.
There is nothing that precludes you from just going to person and asking them if they have information or documents that would be helpful. If they say yes, you can subpoena them as an involuntary witness
● Five mechanisms that parties may use to obtain information through discovery:
(1) Interrogatories
○ Series of written questions from one party to another, answers are sworn to under oath, must be answered within 30 days of receiving. Lawyer must sign DY response pursuant to 26(g) certifying she has made a reasonable inquiry before submitting response.
○ Objections are made in writing by party’s lawyer
○ Cannot be directed to a non-party
○ Typically the first way you go about finding out what documents exist
○ Limited to 25 interrogatories (written questions)
○ Pattern interrogatories are tailored to particular kinds of claims
○ Contention interrogatory — explore adversaries’ factual support for their legal contentions
(2) Depositions
○ Can be subpoenaed under Rule 45
○ Ordinarily cannot use deposition testimony at trial, but it can always be used for impeachment — to show if someone contradicts themselves at trial — to destroy credibility
○ Two kinds of depositions available:
■ Deposition of a person who has info relevant to the litigation — a witness
(eye-witness/fact, expert, plaintiff, etc.). Send a notice to the person telling them when and where to appear for a deposition.
■ 30(b) deposition — if the person being sued or the person whose info you want is a legal entity (i.e., a corporation, a university, etc.), then you ask the legal entity to designate someone who has info relevant to the issue, and then you depose the person — whatever that person says binds the entity
■ Also, deposition upon written examination — this might be used when you want to depose someone who lives in another country — difficult, because you cannot follow up on questions
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(3) Requests for the production of documents
○ You often ask for the party to produce all documents they identified in interrogatories
○ Not acceptable simply to dump documents onto the other side. Rules require you to produce docs in one of two ways:
■ (1) produce them in the order in which they are kept — simply say, we have a warehouse full of docs, you may come and inspect them — you may not want to do this if there are privileged docs
■ (2) provide all the responsive docs — you should categorize them using whatever document requests the person has provided — identify the docs in the order in which the requester sent them
○ Docs should be in control of the party — big issue — is a doc in London in the control of a party in the US? It depends.
(4) Physical Examination
(5) Admissions
● Rule does not require disclosure of all evidence relevant to any party’s claim or defense.
Scope of required initial disclosures is much narrower: Just “info that the disclosing party may use to support its claims or defenses.” Therefore, doesn’t have to include every witness, etc.
● Delay button for initial disclosures:
○ Stipulation by the parties
○ Objecting during conference, then stating the objection in the resulting proposed
DY plan
○ Moving for a court order postponing disclosure until after the court ruled on the dispositive motion
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Voluntary Dismissal Without Court Order
● P may voluntarily dismiss without court order simply by filing a notice of dismissal before the opposing party serves either an answer or a MSJ -- or by stipulation of all the parties
Two-Dismissal Rule
● First such voluntary dismissal by notice (notice dismissal) is without prejudice to commencing a new action for the same claim, but under this rule, the second notice dismissal operates as an adjudication on the merits that precludes suing on the dismissed claims again in federal court.
Voluntary Dismissal By Court Order
● Court considers whether dismissal will cause plain legal prejudice to the D, beyond simply the tactical advantage that presumably any P is seeking by dismissal, and may take into account the Ps reasons for dismissal
● Court can condition dismissal on P’s payment of D’s costs and such other terms as will mitigate the legal prejudice to D from dismissal
● Voluntary dismissal by court order is without prejudice unless stated otherwise

Voluntary Dismissal o P may voluntarily dismiss her case, either with or without court approval, depending on when P seeks dismissal o Dismissal without leave of court – court approval not required
 Allowed anytime before Δ serves an answer or motion for summary judgment
 P voluntarily dismisses by filing written notice of dismissal or a stipulation signed by all parties who have appeared in the case
 Often occurs when parties settle a case
 Dismissal is without prejudice, meaning P can bring claims again

Exception – dismissal is with prejudice if P previously filed and dismissed the same claim, or if it is a condition of the parties’ settlement agreement o Dismissal with leave of court – court approval required
 Required if there has been an answer, motion or prior dismissal
 Court has discretion to grant dismissal on terms and conditions it deems proper
 Dismissal is without prejudice unless courts states otherwise
 Pending counterclaim – if Δ has filed a counterclaim against P, then P cannot voluntarily dismiss without Δ’s consent
FRCP Rule 41: Dismissal of Actions
● P can voluntarily dismiss their suit without prejudice or approval from the court BEFORE:
○ 1) the D has filed an answer OR
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○ 2) the D has filed a motion for summary judgment
● You do not have to move for a voluntary dismissal at the above stage because it is a right — happens automatically, and when the notice is timely filed the court cannot even rule on a pending motion to dismiss
○ Harvey Aluminum Inc. v. Am. Cyanamid Co.: 2nd circuit held that court cannot allow dismissal as of right when the parties have expended substantial resources.
Other circuits have been critical of this decision.

Default Judgment o Default judgment is a court-ordered judgment against Δ that may be entered when Δ fails to answer or otherwise defend a properly served complaint o Procedure – P files motion for default judgment against Δ
 Clerk enters default on docket if Δ fails to respond within 21 days of being properly served (60 days if Δ waives service)
 Default does not automatically entitle P to recovery; clerk or judge must enter default judgment against Δ o Recovery – if default judgment is entered, P’s recovery is limited to the amount demanded in P’s complaint o Setting aside default judgment – court may set aside default judgment for good cause shown within one year
 Good cause usually satisfied if Δ can show some excusable neglect, mistake, or fraud as grounds for the default

Motion to dismiss & motion for judgment on the pleadings o Δ may move to dismiss or move for judgment on the pleadings on the grounds that P has failed to raise a plausible claim o Basics of both motions – both brought under Rule 12
 Both motions accomplish the same goal, but timing and materials viewed by the court are different
 Under both motions, Δ is essentially arguing that, even assuming all of P’s allegations are true, P cannot win o Notable differences:
 Timing of filing:

If Δ has not filed an answer = Rule 12(b) motion to dismiss

If Δ has filed an answer = Rule 12(c) motion for judgment on the pleadings
 Materials reviewed by the court:

Motion to dismiss – court reviews sufficiency of P’s complaint alone

Motion for judgment on the pleadings – court reviews all pleadings filed

Motion for Summary Judgment o Either party may file a motion for summary judgment which asks the court to enter judgment against the opposing party on the basis that there is no genuine dispute as to material facts and that the movant is entitled to summary judgment as a matter of law o Burden for moving party – must show:
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1.
There is no genuine dispute of material fact; and
2.
Moving party is entitled to judgment as a matter of law
 i.e., no reasonable person could find for non-moving party
 motion is based on pleadings and evidence submitted o Burden shifting – if party moves to summary judgment, burden shifts to non-moving party to show that a triable issue exists o Evidence – examined in light most favorable to non-moving party o Court can look at the whole record of admissible evidence (e.g., pleadings, discovery materials, etc.) o Evidence must be admissible to be considered o Note- this distinguishes MSJ from Rule 12(b) or 12(c) motions, in which the court may look only at the complaint or all pleadings o Partial summary judgment – court can grant summary judgment on some claims, while preserving other claims
FRCP Rule 56: Summary Judgment
● If prior to a trial there is no dispute about the facts, then there is no need for a trial.
When the facts are undisputed, all that remains is to apply the relevant law. A dispute about the law is not tried by fact-finders, it is decided by a judge
● Parties can show the facts are undisputed in the following ways:
○ Stipulation by both parties
○ A showing by one party that the evidence is so one-sided that no reasonable fact-finder could dispute the existence or non-existence of certain facts
● No need to do live testimony of witnesses because this would essentially be a trial, not a summary. Motion for SJ essentially previews (usually in documentary form) the evidence parties would put on at trial in order to determine if it would establish any dispute that requires trial — uses sworn witness statements called affidavits
○ Only evidence that would be admissible at trial can be used in an SJ hearing — no “promise” to come up with evidence will suffice
○ While affidavits and declarations (written statements by witnesses) would not normally be admissible, they are allowed in a motion for SJ, but must be made on personal knowledge and set out facts that would be admissible in evidence.
Therefore, they would only be inadmissible at trial in that form.
○ Hearsay is inadmissible — must be eyeball witnesses or percipient witnesses.
● Can file a motion for SJ any time up until 30 days after the close of discovery
● If movant for SJ shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, then the burden shifts to the nonmoving party to produce evidence showing a genuine dispute
● Standard of proof in an SJ hearing is the same as the standard applicable of the issue in the case — usually in civil litigation this is a preponderance of the evidence
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● The rules allow a nonmoving party to file an affidavit to obtain a continuance (delay) in order to complete any discovery needed to respond to the moving party’s motion for SJ
● Difficulty in a legal issue is not ordinarily a reason to insist on trial, but SCOTUS held that when a fuller record may clarify the correct legal analysis, the court can approve the deferral of the decision
● Whether a dispute is “genuine” depends on whether any reasonable fact-finder could decide an issue of material fact for the non-moving party
○ Cases generally reject the disbelief of denial and slightest doubt theories for denying SJ — “mere scintilla of evidence in support of P’s claim is insufficient, must be evidence on which a jury could reasonably find for the nonmoving party
○ It is the existence of the genuine dispute, not its resolution, that is key to SJ
● The following are all motions seeking decision as a matter of law:
○ 12(b)(6) — facts in complaint
○ 12(c) — facts in complaint and answer
○ 56 — summary judgment (undisputed facts in movant’s and non-movant’s materials)
○ 50(a)(1) — judgment as a matter of law — facts in record after P’s case
○ 50(a)(1) — facts in full trial record after P and D’s case
● These different motions primarily differ in their timing and in how the facts are established to furnish the record for the decision. Inquiry under each rule is the same — whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law
● Dismissals for failure of prosecution, violation of the rules, and all other dismissals under the rules (EXCEPT for lack of jx, improper venue, failure to join required party) operate as adjudications on the merits, which usually preclude the dismissed party from commencing a new action in a federal court based on the same claims
● Proof of the elements motion for SJ — if moving party would have burden of proof on a claim or defense at trial, then he must present undisputed facts supporting each and every element of the claim or defense in order to obtain SJ
● Disproof of an element motion for SJ — moving party presents undisputed facts that negate an essential element of the non-moving party’s claim
○ This is typically the D — easier for them to obtain SJ bc they just have to disprove one essential element while a P would have to prove them all
● Absence of evidence motion for SJ — moving party demonstrates there is no evidence whatsoever in the record by which the non-moving party could establish the existence of an essential element of his claim
● Partial SJ — 56 authorizes court to issue SJ on individual claims or defenses without deciding the entire trial
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
Right to Jury Trial o The US constitution provides the right to jury trial in certain civil cases o 7 th amendment – provides the right to a jury trial in all civil actions at law o Demand for jury trial – party must file a demand for a jury trial within 14 days of service of the last pleading raising a triable issue o o
If not filed, the right to a jury trial is deemed waived
 Note – this distinguished from the 6 th amend., which creates the right to a jury trial in criminal cases
Number of jurors required – minimum of six jurors, maximum of 12
 Six jurors must be unanimous to reach a verdict
 No alternate jurors in federal court
 Federal courts typically seat 9 to 12 member juries
● Court has held that 7th amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details. Therefore, the following slight modifications are allowing:
○ Control of the jury by directed verdict
○ Changing the size of the jury
○ Partial re-trials
● When there are mixed questions of law and fact, the court has held that it is the judge’s role to declare the law and the jury’s role to apply it. These mixed issues involve application of agreed principles of law to particular facts, and may be allocated to judges in some situations and juries in others — frequently based on ad hoc policy concerns unique to the particular issue
○ Court has held that interpreting the meaning of claims covered by a patent is an issue of law for the judge
Claiming Jury Trial
● Either party may demand a trial by jury where the right applies
● FRCP 38(b) provides that a party demanding jury trial must file a demand with the court and serve it on all parties no later than 14 days after service of the last pleading directed to the issue on which a jury is sought
● Wise to place demand in complaint or answer, but if not you can amend
Advance Waiver of Jury Trial
● Right can be waived by omission — If no party to the action wants a jury, parties will waive jury trial by not requesting it, and case will be tried to the judge
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● If a party mistakenly lets the period go by and decides it wants a jury, Rule 39(b) allows judge to order a trial anyway on any issue for which a jury might have been demanded
○ Very unlikely to happen
● Parties may waive right to a jury in advance by contract
Selecting the Jury
● Venire (group of potential jurors) will be randomly chosen from voter lists or demographic sources
○ In federal court, will be drawn from a much larger geographic area, this is a significant factor in choosing between state and federal court
● In Voir Dire judges or lawyers question the venire to weed out biased jurors
● May be entitled to several peremptory challenges — strike a few jurors w/o explanation
● Once those impartial persons are removed, you’re left with a group to make up the petit jury (anywhere between 6-12 persons -- default is 12)
○ Will likely have alternates, maybe you will have about 16 total
● If after this process of seeding the jury (called empaneling the jury), you still have like 40 people left, you can then just select the first 16 or so of them
Scheduling Jury Trial
● When a case is tried to a jury, it must be tried in one continuous sequence, while a trial to the judge can be episodic
● Jury trials take more time than trials to the court because of selection process, dealing with evidence and logistics, instructions, etc.
Advisory Juries
● Rule 39(c) authorizes federal judges to use an advisory jury — court empanels a jury but is not bound to follow its findings
○ Might be used when judgment is about community standards such as obscenity
Types of Juries
● Petit Jury — SCOTUS says must be made avail under 6th amendment (criminal)
● Grand Jury — not controlled by 6th amendment, this is an investigative body (crim)
● Civil Jury — not incorporated under 14th amendment, it’s part of the bill of rights

Voir Dire o Voir dire refers to the jury selection process, which occurs at the beginning of trial; voir dire involves questioning potential jurors to evaluate whether they are qualified to serve on the jury o Striking potential jurors – each party may strike potential jurors
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 For-cause strikes – for potential jurors that appear incapable of rendering a fair, impartial verdict

E.g., potential jurors that demonstrate bias, prejudice, et.

Each side has unlimited for-cause challenge
 Preemptory strike – may be used by parties to strike potential jurors for any race-neutral and gender-neutral purpose

Each side has three preemptory challenges to use during voir dire

A party cannot strike a potential juror on the basis of race or gender

Jury Instructions o Jury instructions provide jurors with instructions and explanation to enable the jury to evaluate the evidence presented at trial on each submitted issue
 Instructions are given to the jury at the close of evidence, i.e., before final arguments and deliberations o Process of determining jury instructions
 Each party may file requested jury instructions with the court
 Proposed instructions – before final arguments at trial, the court gives parties its proposed jury instructions

Objections – parties must have a reasonable opportunity to object to the court’s proposed instructions before they are delivered to the jury

Verdict o The verdict is the decision of the trier of fact, either the judge or the jury, depending on whether the trial is a bench or jury trial
 Remember what parties must request a jury trial o Requirements – verdict must be:
 Unanimous, unless the parties stipulate otherwise; and
 Returned by a jury of at least six members o General vs. Specific verdicts – court decides which type to use
 General verdict – jury finds for P or Δ and decides amount of damages or relief to award
 Special verdicts – jury is asked to make factual findings only and the court applies the law to those facts

Court submits questions to the jury regarding ultimate facts and makes legal conclusions based on jury findings o Ultimate facts are those which are essential to the judgment
(i.e., the outcome would have been different if the fact was different)
 General verdict with interrogatories – the court can require a general verdict but also ask the jury to answer specific questions concerning ultimate facts

Purpose is to ensure the jury properly considered important issues
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o In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue, either deciding without jury input (JMOL) or overruling a jury’s decision (JNOV)
 Judgment as a matter of law (JMOL aka directed verdict)

Court decides the case without allowing jury deliberations

Procedure – motion for JMOL can be brought by either party before a case would otherwise be submitted to the jury

Standard – court can grant JMOL if a reasonable jury would not have a. sufficient evidentiary basis to disagree on the result (e.g., result is obvious, reasonable people could not disagree)
Rule 50 Basics
● 50(a) authorizes a judge to grant a motion for JMOL after the non-moving party (usually the P) has been fully heard on an issue at trial (usually after opening statements, witnesses called for that side, etc.). (Sometimes called directed verdict)
○ 50(a) requires the moving party to specify the basis for the motion. Non- moving party must have been fully heard on that basis
● 50(b) permits party to renew a 50(a) motion for JMOL after the jury has rendered its verdict.
(Sometimes called JNOV)
○ Party cannot renew a motion for JMOL under 50(b) unless party previously made a 50(a) motion that raised the same issue
○ Party cannot appeal a denial of a 50(a) motion unless that party renewed under 50(b) after jury’s verdict. Appellate court will apply a de novo standard of review when determining whether the non-moving party offered legally sufficient evidence to withstand a motion for JMOL
Standard for Rule 50
● Essentially the same as MSJ under 56. Court has to determine whether non-moving party’s case is legally sufficient for a reasonable jury to reach a verdict in favor of the non-moving party
● To determine whether non-moving party has offered legally sufficient evidence, court will consider the non-moving party’s uncontradicted and unimpeached evidence. Court will then determine whether, in light of this evidence, a reasonable jury could render a verdict for the non-moving party
● At least one state uses the “scintilla” standard and denies a motion if there is a scintilla of evidence to support non-moving party’s case. Under this approach, courts will not consider the moving party’s evidence, even when it is uncontradicted and unimpeached
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 Judgment notwithstanding the verdict (JNOV)

After a jury verdict and entry of judgment, the losing party can file a
JNOV for entry of judgment in the losing party’s favor

Procedure – must be filed within 28 days after entry of judgment o Can only be filed if a JMOL was originally filed

Standard – court may grant JNOV if reasonable people could not disagree that the verdict was wrong o Movant may file an alternative request for a new trial

Motion for a new trial o After trial, either party may file a motion for a new trial if serious errors occurred at trial o Grounds for new trial – parties can move for a new trial for any reason, but errors that would justify granting a new trial included:
 Prejudicial error – serious error that makes the judgment unfair

E.g., Jury instructions were wrong
 Prejudicial misconduct – of a party, attorney, juror, witness, etc.

E.g., the jury considered excluded evidence
 Judgment against weight of evidence – jury erred in reaching the verdict given the evidence before it
 Newly discovered evidence – new evidence emerges that was not known or available at trial
 Excessive or inadequate damages – court cannot increase the jury award
(violates 7 th amendment), but judge can order a new trial or offer remittitur if convinced the award is too high o Motion for new trial vs. JMOL or JNOV
 In granting a new trial, court is not directing judgment, only saying process should restart, i.e., prevailing party might prevail again; with JMOL and JNOV, court is directed judgment
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➽
Four major methods of controlling the jury:
● Preventing jury from making decisions without sufficient evidence via JMOL, MSJ
● Rulings on admissibility of evidence
○ Court may exclude even “relevant evidence… if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury”
○ Evidence can be excluded or “limited”
● Instructions to the jury
○ FRCP Rule 51(a) provides that a party may make written requests for jury instruction at the close of the evidence or at an earlier reasonable time the court orders
● Verdict Forms
➽
Jury Instructions
● In a jury trial, a party must file proposed jury instructions at the close of the evidence or such other time as the court directs
● Before the court instructs the jury, it must inform the parties of its proposed jury instructions, and a party must make any objection on the record to an instruction or the failure to give an instruction
● Trial court has broad discretion in deciding the form and content of jury instructions and verdict forms and is not required to accept instructions offered by the parties
● Reviewing court will not set aside a jury verdict and order a new trial unless the jury instructions, viewed as a whole, inaccurately state the law or confuse or mislead the jury, and the error was prejudicial to the verdict loser
➽
Verdict Forms
● General verdict form asks the jury to answer, for each claim, “who won?,” and if it finds for the plaintiff in an action for damages, “how much?”
● Special verdict form requires the jury to make special written findings on each issue of fact instead of returning a general verdict.
○ Useful to guide jury’s deliberations in complicated cases and for making the jury’s work clear, sometimes enabling a court to salvage a verdict by “localizing” an error in the jury instruction or in the verdict itself
● Hybrid verdict is a general verdict with answers to written questions, sometimes called interrogatories. It combines questions of the special verdict with a general verdict.
○ Not used as often as general or special because it poses a risk of inconsistencies among the answers, or between them and the general verdict
➽
Harmonizing Verdicts
● Courts have a duty to harmonize inconsistent verdicts, if possible. When it’s not possible, court’s options depend on the kind of verdict and the nature of the inconsistency
FRCP Rule 51: Instructions to the Jury; Objections; Preserving a Claim of Error
● In order to reverse a verdict based on this, must show prejudice. Harmless error is not enough -- it must affect a party’s substantial rights.
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● Parties must object to a jury instruction at the first opportunity to in order not to waive rights -- this is usually when the judge informs the parties of the proposed instructions before giving them to the jury
○ Exception for plain error if it affects substantial rights, must be obvious and clear and threaten a miscarriage of justice
● Federal judges are not prohibited from commenting on the evidence, but they cannot unduly influence juries and usurp its function
○ Judge’s comments cannot add to the evidence
○ Judge cannot share their own experience with the jury and communicate his opinions on the trial to them
■ Example of NOT allowed: “when D wipes their hands, that means they’re guilty”
■ Example of minor incident which isn’t enough for reversal: “well i’ve never seen a tire blow up before from putting air in it”
○ Judge IS allowed to remind the jury of the record without adding to it
➽ Motion for a New Trial
● Must be made no later than 28 days after entry of judgment (no req for a motion before jury deliberates)
● On a motion for a new trial (MNT) on grounds that verdict is against the weight of the evidence, the court may weigh the evidence and assess credibility, and it need not resolve reasonable doubts against the movant, unlike JMOL
● Court should consider the length and complexity of the trial, the importance of credibility determinations, and the jury’s comparative fact-finding capacity. The simpler and shorter the trial, and the more important credibility is, the more reluctant a court should be to second guess the jury
➽ Remittitur
● When court concludes size of verdict was against the weight of the evidence and shocks the judicial conscience, it can give verdict winner choice of:
○ Remitting the excess amount and accepting instead what the court finds to be a reasonable verdict, OR
○ Having the verdict set aside and undertaking a new trial
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● Constitutional in federal courts, but additur is not
➽ New Trial on Certain Elements of a Claim
● Court may order a new trial just on damages or liability, or even just on an element of liability, provided the issue to be retried is distinctly and fairly separable from the remaining issues
➽ New Trial Based on Error in Trial
● Can be ordered i the error probably or to a substantial degree affected the right to a fair trial or the jury verdict, and if it was timely and specifically raised by the moving party
● Process errors based on jury misconduct implicate the rule of evidence that excludes juror testimony to impeach their verdicts. Juror’s testimony is inadmissible to show what was said or what occurred during the course of deliberations or what influenced the juror’s mental processes, except that it is admissible to show that extraneous prejudicial info was improperly brought to the jury’s attention or than any outside influence was brought to bear on any juror
➽ Rule 60 Motion for Relief from Judgment
● If all else fails (JMOL, MNT, and appeal) party can seek relief from judgment under Rule
60. 60 motions are not a substitute for these motions or for appeal and are granted only under limited circumstances, such as fraud or misconduct
FRCP Rule 59: New Trial; Altering or Amending a Judgment
● If a judge concludes that a verdict is wrong or that there was an error in process, but that there is NOT a problem with insufficient evidence, Rule 59 gives the judge the power to give the case to a new jury by granting a new trial
● Motion for New Trial (MNT) must be filed no later than 28 days after entry of final judgment
● If MNT is granted, this is NOT appealable, because it is not a final judgment
● No requirement that you file MNT in order to appeal
● Three categories that allow a judge to grant a new trial:
○ Verdict is clearly wrong because it is not supported by the weight of the evidence
■ Could be erroneous finding of liability, dollar verdict could be too small or large, erroneous answer to material question, etc.
○ Error occurred in conduct of trial or the jury’s deliberations -- process errors
○ Losing party finds new evidence after the trial that would have materially affected the outcome
■ This is exceedingly rare -- courts insist new matter be evidence that could not have been discovered by due diligence in time for trial
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■ Rule 60 allows judge to grant relief from judgment for several reasons, including newly discovered evidence that couldn’t be found in time for 59
● No requirement that a party move for a new trial before the case is submitted to the jury -- court is even authorized to move sua sponte within 28 days after entry of judgment
● Contrast Motion for New Trial (MNT) with JMOL:
○ JMOL tests sufficiency of the evidence to support a jury verdict by a reasonable jury standard. Court does not weigh evidence or judge credibility of witnesses.
Construes all reasonable doubts against movant. Takes case from jury and decides it “as a matter of law”
○ MNTl assumes there was sufficient evidence and verdict is reasonable, but tests whether verdict is nevertheless clearly erroneous, either bc it’s against the weight of the evidence or it was (or could have been) product of flawed trial.
■ Court can weigh evidence and assess credibility
■ Does not have to resolve doubts against movant
■ Rejects jury’s first verdict, but does not decide case as matter of law
● Judge’s scrutiny of verdict should take into account complexity of the evidence and relative fact-finding abilities of jurors -- closer scrutiny for more complex cases
● Courts cannot simply grant a new trial because the court would have come to a different conclusion than the jury. Judge cannot assume jury was wrong and he alone was right.
Therefore, the standard insists that a judge find the verdict clearly erroneous or be left with a definite and firm conviction of error, in light of the complexity and length of trial
● Remittitur: when basis for a new trial is that verdict was excessive and against the weight of the evidence, federal courts can grant a new trial UNLESS P agrees to “remit” the excess verdict
○ Remittitur cannot be appealed by P. D can appeal bc judgment is still being entered against him.
○ To arrive at number, courts apply one of three approaches:
■ Minimum recovery
■ Maximum recovery
■ What court deems reasonable
● Court CANNOT do the reverse and threaten the D with a new trial unless he chooses to add to damages through an “additur” (avail in some state courts)
● Partial New Trials are allowed under 59(a) -- court must determine if an issue can be retried truly and fairly separated from remaining issues
○ For example, if a new trial of damages would cover the same evidentiary ground as liability, and the issues are interlinked, it would be unfair to limit new trial to damages
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