CIV PRO
Question 1: 43 minutes
Question 2: 26 minutes
Question 3: 46 minutes
Question 4: 17 minutes
Question 5: 17 minutes
Question 6: 39 minutes
Question 7: 17 minutes
Question 8: 17 minutes
Personal Jurisdiction
("Would not matter if borders did not exist")

Step 1: A court can not exercise personal jurisdiction over a defendant unless the defendant has been given proper
notice of the civil action and the state court has a statutory basis for its jurisdiction such as a long-arm statute, and
the use of the long-arm statute must not be in violation of the defendant's rights to due process found in the 14th
Amendment. (Assume that everything OK)

Step 2: First check to see if any Pennoyer Traditional Bases apply (if so, go see Burnham)
o
Defendant was served with process in the forum (gives general J).
o
The defendant's agent was served with process in the forum.

Hess vs. Poloski

Defendant gets out of MA before being served w/ process but MA had a statute which said "if you come into our state
and drive in a motor vehicle and get into a motor vehicular accident, you have appointed an agent (the commissioner of
motor vehicles in this case) to be served."

o
The defendant was domiciled in the forum. (gives general J).
o
The defendant consents to jurisdiction by inadvertence or a contract.
Step 3: Do the International Shoe Doctrine: The defendant must have sufficient "Minimum Contacts" with the forum
state…which would not offend "Traditional Notions of Fair Play and Substantial Justice." First, it will be evaluated
whether minimum contacts exist between the company and the forum state (which is on the burden of the plaintiff
to prove). Then, whether or whether not the minimum contacts are found to exist, the reasonableness factors which
make the exercise of pj not unfair will be evaluated (this is on the defendant as the burden of proof shifts after the
minimum contacts are determined to exist).
o
Step 3a: Discuss Contacts

The burden is on the plaintiff to prove the company had minimum contacts with the foreign state.

"If the company's contacts arise from the plaintiff's cause of action, check for specific personal
jurisdiction. But if the contacts do not arise from the plaintiff's cause of action, than the court must
check for general personal jurisdiction, otherwise . . ."

Step 3b: General Personal Jurisdiction
o
The company's contacts must be "so substantial and of such a nature that they are
essential at home" in the forum. Daimler/Goodyear. Analyze.

Because no GPJ, Step 3c: Specific Personal Jurisdiction

In Hanson, the court found that minimum contacts could be established if the defendant
was found to have "purposefully availed" themselves of the forum state.

Under WWV, if a distributor or manufacturer seeks to serve, directly or indirectly, the
market in the forum state, the company purposefully availed themselves of the state and
therefore adequate minimum contacts exists. This is in essence "entering the stream of
commerce."

There has yet to be a majority opinion on what "seeks to serve" means or whether "entering
the stream of commerce" requires anything else. But there are some theories on the matter.

In J. McIntyre, a divided court grappled in the murky waters of specific personal jurisdiction.
The case produced three theories on what entails purposeful availment, a plurality from
Justice Kennedy, a concurrence from Justice Breyer, and finally a dissent from Justice
Ginsberg.

Additionally, the courts result leaves some to wonder if the credential factors evaluated by
the court are strongly-tilted in favor of personal jurisdiction, whether minimum contacts are
necessary at all.

In certain instances, just one contact is enough to establish minimum contacts. See McGee, and Calder.

Calder is an exception for international torts committed across state lines.
o

Distingusih torts and product liability if using this for product liability example.
Indemnity claims most often arise out of a contract
Calder Effects Test
Issue: Does the ∆ have minimum contacts with the forum state based on its intentional conduct toward the forum state?
Rule: Under the Calder Effects test, the ∆ may have minimum contacts with the forum state if it intentionally targets the
victim knowing it would cause harm in the forum state.
Analysis:
*remember, just knowing the π lives there isn't sufficient
*look for intentional tort
The π would argue [insert's intentional act] was uniquely or expressly aimed at the forum state because ___ and it causes
een trying to limit the scope of this doctrine. For example, the more conservative
justices who like purposeful availment do not like the Calder Effects Test.
Conclusion: The ∆ [probably/probably did not] have minimum contacts with the forum state under the Calder Effects Test
International Shoe
Contacts: Company has no store, has no factory, no office, has no contracts but has contractor salesmen (thus the salesman had no
power, the customers sent the offers into International Shoe). Salesmen only display one shoe, meaning the salesmen cannot sell the
shoe on the spot, ship orders to WA.
Hanson v. Decnkla


McGee
Set up trust in Delaware, trustee moved to FL.
Similar to WWVW (unilateral act of a consumer)



Sent one letter of solicitation to one guy
in California.
Different from Hanson: The one contact
was initiated by the defendant. It was a
letter trying to do business. It wasn't the
happenstance of the trustmaker moving
to FL.
Introduced phrase "purposeful
availment."
Worldwide Volkswagen

Products Liability (Car to consumer)

Dealt with the unilateral act of a consumer (taking a car from where the defendant sold it to them) to a separate forum and not
with the acts of the defendant.


Purposeful availment could be an element of both credential factors or minimum contacts?
Court agrees it was foreseeable car would go to OK. But the relevant inquiry was whether it was foreseeable the defendant
could be sued in OK.
Asahi



Commercial purchase of industrial equipment
Only action left was the third-party plaintiff's indemnity action against the third-party defendant
Hints that if the factors strongly tilt against pj, then you may not even have to discuss minimum contacts.
O'Connor for the Court:
-Credential factors powerfully go against SPJ.
-CA has no expertise whatsoever in examing an
indemnity contract between a Taiwanese and a
Japanese company.
-It is wildly burdensome for the Japanese company to
come to CA.
O'Connor Four Opinion:
-A's awareness that the stream may take
its product to the forum does not
convert the act of placing the product
into the stream into an act purposefully
directed toward the forum state.
-Stream of Commerce+
McIntyre Machinery


No majority opinion but 6-3 result in judgement that no PJ
Credential Factors in this fact pattern:
o NJ has high interest in the scrap metal business as NJ has the
largest scrap industry in the U.S.
o NJ cares about safety for its citizen, and the safety of the major
industry in the state.
o It is important for the victim to go to a place nearby.
o Defendant has a U.S. subsidiary and therefore a infrastructure in
the state to sell its product.
Kennedy Four
- PJ comes from Intending
to submit to the power of a
sovereign and targeting the
forum.
- In line with O'Connor four
from Asahi
Breyer-Alito Concurrence
- Joined four in the result.
- Agreed with two in the context of
this fact pattern. Does not deal
with implications of modern
consumer commerce
- Asked what the Kennedy standard
meant if "a company targets the
world by selling products from its
website?"
Ginsberg Dissent
- Sort of agree w/ Brennan
Opinion and update it for
modern commerce.
- Acknowledge it's a industrial
sale.
Brennan Four Opinion:
-Purposeful availment in a stream of commerce sense: When
you put your product into the stream of commerce, and you
can expect it will wind up in the forum state and be sold to
people, that is enough purposeful availment.
-Stream of Commerce is enough if you expect.
*Calder - exception to purposeful availment if a
plaintiff was targeted with an intentional tort
 Could foresee that this sort of person
could get hurt by it.
 Even if the only contact is that the writer
set out to hurt with their writing a CA
citizen, that is enough to meet PJ. (Just as
much contact as McGee letter sent).
Personal Jurisdiction Sample Answer
First, a defendant must have been given proper notice of the plaintiff's civil action for the court to exercise personal
jurisdiction. It will be assumed that this was the case. The state court must also have a statutory basis for its jurisdiction, such
as a long-arm statute. BLANK state has a long-arm statute. Look at “LONGARMA”.
The issue at the heart of the matter is whether the use of the long-arm statute violates the defendant's 14th
amendment rights to due process.
LONGARMA: Regarding the statutory basis for jurisdiction, it is not clear what kind of long-arm statute the state has.
If the statute is more restrictive and precludes the court from having personal jurisdiction over the defendant for this action,
the analysis would end there. However, it will be assumed that the court has a long-arm statute that ties its reach to the due
process clause, and therefore personal jurisdiction over the defendant will be appropriate so long as the use of that statute
does not violate the due process clause. (If in federal court mention Fed. R. Civ. P. 4 (k) provides that federal district courts
have the same jurisdiction as exercised by the state courts they sit in.)
Traditional Bases for Personal Jurisdiction
The court likely does not have personal jurisdiction based on any of the traditional bases demonstrated in Pennoyer v.
Neff. It does appear that BLANK was served in BLANK STATE. Nor is BLANK domiciled in BLANK STATE because BLANK is a
citizen of ___. Nor has BLANK involuntarily waived personal jurisdiction because they have entered a special appearance with
the express purpose of fighting the jurisdiction. That is also the reason why BLANK has not consented to jurisdiction as well.
Because none of the traditional basis for personal jurisdiction applies, for the court to have PJ it must be determined
whether the defendant has any contacts with the forum state, and what nature of those contacts are. If BLANK’s contacts with
FORUM are significant enough for the court to have general personal jurisdiction, BLANK could sue BLANK for anything that
happened in the world in FORUM STATE including blahblahblah. However, if BLANK does not meet that threshold, PLAINTIFF’s
cause of action must relate to BLANKS contacts in FORUM STATE so that the court can determine whether it has specific
personal jurisdiction.
General Personal Jurisdiction
1 point. Max 3 paragraphs.
The court does not have general personal jurisdiction over the defendant because the defendant is “at home” in __,
and not ___. For the court to have general personal jurisdiction over the defendant, the defendant's contacts must be "so
substantial and of such a nature that they are essential at home" in the forum. Daimler/Goodyear. A distributor or
manufacturer is "at home" where they are incorporated and where their principal place of business is. The latter has given the
court some trouble in analysis, but the court has described it as where the corporation's "nerve center" is. A “nerve center” is
where a corporation's executives reside and where they make decisions for the company. Analyze.
Specific Personal Jurisdiction: Do the Shoe
Because the court will not have a traditional basis for personal jurisdiction, nor is the defendant "at home" in the
forum state, the defendant must have "minimum contacts" with the state so that the use of the court's long-arm statute will
not "offend traditional notions of fair play and substantial justice.” International Shoe (stands for proposition). If BLANK lacks
sufficient contacts with BLANK, the use of BLANK’s long-arm statute will violate the defendant’s 14th amendment right to due
process. The defendant's contacts will be analyzed first.
Minimum Contacts
BLANK’s conduct in FORUM STATE is related to PLAINTIFF’s cause of action. Succintly analyze why. But PLAINTIFF has
the burden of persuasion in showing that BLANK had “minimum contacts” with the state. One method is to show that BLANK
has purposefully availed it/him-self “of the privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.'" Hanson, Burger King.
(Note: In many ways, purposeful availment is a fluid concept, and it bleeds into the credential factor analysis.
However, for this analysis, it will be assumed that it only applies in evaluating a defendant's contacts and has been fully
incorporated into the stream of commerce metaphor.)
To show that DEFENDANT purposefully availed themselves of FORUM STATE, the PLAINTIFF will undoubtedly claim
that DEFENDANT entered FORUM STATE’s “stream of commerce with the expectation [its goods would be] be purchased by
consumers” in FORUM STATE. Worldwide. It would be wise of them to argue that BLANK could foresee that they could be
hauled into court in the forum state because of their commerce there. Although this is not a settled question. The PLAINTIFF
may argue ____, while BLANK may argue ____.The rationale behind the court’s decision in WWVW was that a business should
not be sued if their product ends up in a state, but that they should be able decide whether they want to enter a forum state
based on the risk factors involved.
What it means for a defendant to enter the forum's "stream of commerce" has been hard for the Supreme Court to
flesh out. In another product liability case, Asahi, albeit one that did not include a unilateral act by a consumer like VW, the
court split into two concurrences on how to apply the “stream of commerce” analysis. The O'Connor four believed that "a
defendant'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." However, in
contrast, the Brennan four believed that if an entity puts a product into the stream of commerce and expects it to wind up in
the forum state and be sold to people, that is enough for purposeful availment and therefore minimum contacts. Analyze pros
and cons of both perspectives relative to facts of the case.
Distingush this case with Asahi.
The Kennedy four in McIntyre essentially agreed with the O’Connor fours “stream of commerce plus” theory. But
framed it as the defendant “Intending to submit to the power of a sovereign and targeting the forum.” As a non-majority
opinion, it has the same affect as the O’Connor fours opinion: it is persuasive. But the effect is the same because …
Credential Factors
So long as the “minimum contact” prong of the Int. Shoe test has been satisfied, the court can then look at the
credential factors to determine whether it is prudent for the court to hear the case. The burden is on THE DEFENDANT to
demonstrate that the exercise of personal jurisdiction upset TNOFPASJ. The factors to be considered are the plaintiff's interest
in having the case in the forum (which is a relatively weak factor), the forum's convenience for the defendant, and the forum's
interest in hearing the case (arguably the most decisive factor).
The court in Asahi was unanimous in its analysis of the credential factors and it can be inferred from the court’s
opinion that if the credential factors are strongly tilted against the forum having PJ, as they were in Asahi, it can remove the
need to even decide whether minimum contacts exist or not. However, no compelling number of credential factors can make
up for no minimum contacts with the forum.
The credential factors in McIntyre Machinery were more tilted in favor of personal jurisdiction than the credential
factors were in Asahi. In McIntyre, the plaintiff was interested in having the forum nearby because it was more convenient for
them. But in Asahi, the third-party plaintiff seeking an indemnity action was an international company, and therefore it would
be more convenient for them to try their claim elsewhere. Further, in McIntyre, NJ had a high interest in the case because it
dealt with a scrap metal machine's safety, and NJ is to scrap metal as Kentucky is to bourbon. New Jersey also had an interest
in the safety of its citizens who could be injured by the machine. In contrast, in Asahi, California's interest in the case was
nowhere near as compelling. While it also had a concern about its citizens' safety (this will almost always be the case in a
product liability suit), it lacked a big reason to hear a case dealing with motorcycle stems because having motorcyclists driving
on their roads is not incredibly unique to the state.
Come where this fact pattern falls on each factor. What case is it more similar to on a factor-by-factor basis. What
distinguishes it. Etc.
Finally, the burden to the defendant also contrasted in the cases because the defendant in McIntyre had an
infrastructure in the United States to sell its product, (it had a U.S. subsidiary) while the defendant in Asahi's only contact with
the country was the sale of a product containing a component the defendant made. Therefore, the defendant in Asahi would
have had to put in more work to make contacts for their defense.
Analysis analysis analysis.
I.
O'Connor Four
Analysis and Talk about policy too.
II.
Brennan Four
Analysis and talk about policy too: Takes into how products are made because the company probably understands
and relies on finished products being sold in far flung places.
If example is on a parts manufacturer: In the context of products made of many component parts, there are arguably
two interpretations of the word "sell." There is one interpretation that the defendant sold its part to the other organization.
Or there is the interpretation that because the subpart manufacturer knows where the part is going, and that is where the
company's income comes from, the subpart manufacturer is selling to the consumer!
Subject Matter Jurisdiction Example Answer
Notes
[Note that State courts are courts of general jurisdiction. There are only a few exclusive jurisdictional grants such as
bankrupty and patent cases. BLANK's claim is one for __. Therefore, the state court is a proper venue because it falls
within the courts general jurisdiction.]
[Don't need to try for SMJ. In state court. Note: Federal courts are courts of limited jurisdiction if needed.]
[If discussing a new claim brought in, not by the plaintiff, and Q asks whether it is a proper pleading]
Assuming even if/that BLANK's pleading contains a short and plain statement showing what BLANK is entitled to
relief, a demand for said relief, and fits the required form of pleadings in Rule 10 as well as the signature requirements in
Rule 11, the pleading will/will not proper because the court lacks jurisdiction over the claim.
Rest of analysis down here
A court needs two things to use its judicial power on an individual or business entity: personal jurisdiction and
subject matter jurisdiction. If the court lacks either of those, the court's decision is unbinding.
Federal Question Jurisdictin
Article III, Section II of the U.S. Constitution permits federal courts to have federal legal question jurisdiction if
Congress has authorized it. In 1875, Congress got off its Jeffersonian high horse and passed the necessary statute to
permit federal courts to have jurisdiction over questions that arise from federal law, the Constitution, or any federal
treatises.
BLANK has filed the necessary well-pleaded complaint, the initial step needed for the court to determine
whether it has §1331 jurisdiction. Mottley. BLANK's well-pleaded complaint contains the federal issue on its face. The
issue is whether ___. This issue did not appear as anticipated defense like the plaintiff's complaint in Motley.
If BLANK's complaint was well-pled, the court will use the standard way to test for federal legal question
jurisdiction from American Well Works. Further, it may use the bright-line rule in Merrell Dow, which is later
distinguished in Grable.
Both Article 3, s. 2 of the Constitution and §1331 state that the action must "arise under" the Constitution, laws,
or treaties of the United States. Well Works is the most common implementation of the "arise under" phrase. In Well
Works, the plaintiff accused the defendant of slandering the plaintiff's title to their pump by stating that the plaintiff's
pump was infringing upon the defendant's patent. Justice Holmes reasoned that "a suit for damages to business caused
by a threat to sue under the patent law is not itself a suit under the patent law." Thus, Holmes held, the court did not
have 1331 jurisdiction.
Similarly/In Contrast …. Analyze.
Further, Merrell Dow dealt with whether a federal court had 1331 jurisdiction if a federal issue was present "in a
state created cause of action." In that case, five out of six of the plaintiff's claims were based on state tort law, but one
complaint alleged the defendant violated a federal statute. The statute in question did not have a federal cause of
action. The court held that "a complaint alleging a violation of a federal statute as an element of a state cause of action,
when Congress had determined that there should be no private, federal cause of action for the violation, does not state
a claim…" arising under §1331.
Similarly/in contrast… analyze.
However, in Grable, the court distinguished Merrell Dow, stating that the case should be read as "treating the
absence of a federal private right of action as evidence relevant to, but not dispositive of, the 'sensitive judgements
about congressional intent' that 1331 requires." The Grable court held that if there was a "national interest in providing
a federal forum" for a federal issue in a state law claim and it was "sufficiently substantial," it could "support the
exercise of federal question jurisdiction over the disputed issue on removal." The court found that the "[federal]
Government, its buyers [at tax sales], and its [tax] delinquents, had a clear interest in the "availability of a federal
forum." The court reasoned a federal forum hearing the issue was OK because it did not "distort any division of labor
between the state and federal courts."
Analyze.
The Supreme Court has consistently held that federal courts should be able to entertain claims under state law
but which turn on substantial federal law questions. In Grable, the plaintiff's complaint was premised on the IRS's failure
to give the plaintiff proper notice. In this case [with claim here.] The court in Grable found that whether the IRS gave
the plaintiff proper notice was an essential element of the plaintiff's complaint and that the statute's meaning was in
dispute. Analyze Here. Furthermore, the court reasoned that the federal government had an interest in having the case
in a federal forum because of its strong interest in the "prompt and certain collection of delinquent taxes," and that
buyers at tax sales and tax delinquents have an interest in appearing before federal judges with experience in federal tax
matters. Analyze interests of statute here.
Diversity Jurisdiction
The second way for the federal court to have jurisdiction is through 1332. There must be complete diversity for
there to be 1332 jurisdiction, and the amount in controversy must exceed $75,000. Strawbridge. ANALYZE IT WILL HAVE
DIVERSITY MOST LIKELY.
Subject Matter Jurisdiction
Federal Question Matter Jurisdiction (§ 1331)

Well-pleaded complaint – Mottley
o
"It is not enough that the plaintiff brings up a defense which the defendant may bring up."

American Well Works: A suit arises under the law that creates the cause of action.

Merrell Dow: the existence of a federal issue in a state claim is not enough to justify federal question jurisdiction.
o
Test to determine whether a "federal cause of action lies:"

1. The plaintiffs are not part of the class for whose special benefit the statute was passed;

2. The indicia of legislative intent reveal no congressional purpose to provide a private cause of
action;


(3) a federal cause of action would not further the underlying purposes of the legislative scheme; and

(4) the respondents cause of action is a subject traditionally relegated to state law.
Alternatives
o
Merrell Dow: If Congress created a private right of action and it is an element in a complaint, it passes 1331.
o
Grable & Sons: But it is still possible even in the absence of that private right of action to sue. Just because
Congress did not create one, that does not mean they did not intend for there to be one.
Diversity Jurisdiction (1332)

Specific rules: Corporations and LLCs
o
Unlike corporations, which are citizens of the jurisdictions where they are incorporated and have their
principal place of business, limited-liability companies are deemed citizens of every state whose members are
citizens. Therefore, LLC's need to claim citizenship for each member.
o
A corporation has two locations of citizenship (28 U.S.C. § 1332(c)) [and must have diversity for BOTH
locations] (1) the state(s) in which it is incorporated; and (2) the state in which it has its principal place of
business.
Removal of a Case

Permission to Ds to move civil action from state to federal court IF IT COULD HAVE BEEN BROUGHT THERE IN THE
FIRST PLACE
o
CHECK FOR 1331, 1332, (and 1367 if you have to)

All Ds must agree to the move ("For this analysis, we will assume that all defendants agreed to the motion.")

There are various time limits, especially on 1332 supported civil actions

1446 has the details of "how-to" do it
Supplemental Jurisdiction
Issue: One issue is where a federal court can have supplemental jurisdiction over BLANK's state law claim.
Rule: There is a statutory basis for such jurisdiction in § 1367(a) which authorizes federal courts to exercise supplemental
jurisdiction over state law claims that come from the same transaction or occurrence. This was a codification of the rule set in
Gibbs that a supplemental claim must "arise out of the same common nucleus of operative facts." [USE IF RELEVANT: 1367
explicitly states it relates to joinder and intervention claims.]
Analysis: Because both the codification and the Gibbs rule accomplish the same thing. There is little reason to assume either
rule will have a different result from the other. Therefore, analysis on whether the court has supplemental jurisdiction over
BLANK's state law claim will rely on the Gibbs test and whether said claim arises out of the same common nucleus of operative
fact as [insert federal Q].
28 U.S.C. § 1367(a): Do the state and federal claims arise under the "same common nucleus of operative facts"?

The π would argue the 2 claims do because…

The ∆ would argue that they do not because…
If SMJ is dependent on PJ and there are 2 ∆s where if 1 dropped out there would be no federal Q or diversity, go through
whether this ∆ was properly joined as a ∆.
(1) Is there a basis for joinder? – Rule 20
a. Does the claim against both ∆s arise out of the "same transaction, occurrence, or series of transactions or
occurrences"? – Rule 20(a)(1)(A) -same analysis as same common nucleus of operative facts below
b. Does it raise a common "question of law or fact"? – Rule 20(a)(1)(B) Ex: Whether ∆s are responsible for
stealing the film
(2) Is there a basis for jurisdiction?
a. If properly joined, there would almost necessarily be supplemental (read § 1367 carefully)
§ 1367:
b. (A): If a supplementary claim falls under the same controversy or case, and the courts have original
jurisdiction (§ 1331), it is good to go.
c.
(B): If a supplementary claim falls under the same controversy or case, and the courts have original
jurisdiction (§ 1332), it is good to go.
i. The policy for this is to prevent collusive joinder (two opposing attorneys from conspiring in
order to remove a case which to federal court and then having the defendant bring in the
plaintiff's subcontractor (who would have destroyed complete diversity)
d. (C): Courts can decline supplementary jurisdiction if the claim raises a novel or complex issue of state
law, the case is predominated by the state law claim, and all other claims with original jurisdiction were
dismissed.
Conclusion: The court [probably has / probably doesn't have] supplemental jurisdiction over the state law claim.
*** Exxon Mobil Co. v. Allapattah Services
o
The Supreme Court found that, where the other jurisdiction elements were satisfied and at least one named
plaintiff met the amount-in-controversy requirement, § 1367 authorized supplemental jurisdiction over
claims of other plaintiffs in the same U.S. Const. art. III case or controversy, even if those claims were for less
than the jurisdictional amount.
o
Policy not to destroy Strawbridge: there is no 1332 money requirement in Article 3 but there is a diversity.
Removal 1441 Example Answer
The defendant can remove the case to federal court if the case could have been brought there in the first place
under 1331 or 1332. It will be assumed all defendants agreed to the move and that the motion was timely.
Supplementary Jurisdiction Answer Example
For the federal court to try the additional claim(s) under 1367 without extending its judicial power beyond the limits set
in Article III, the court must have at least one claim under an original subject matter jurisdiction grant (either 1331 or
1332). The additional claims must be so related to claims within the action (which is under the court's original
jurisdiction) that they form the same case or controversy under Article III. (A) (The statute also allows for additional
plaintiffs or defendants.) It will be assumed that if the claims are found to be originating from the same case or
controversy (essentially the "common nucleus of operative fact" from Gibbs), than the court will not find that the case
raises a novel or complex issue of state law and will avoid using its discretion to decline jurisdiction under 1367c.
Attack Outline: State Law in Federal Court
▪
Is there a federal directive on point? If yes, Supremacy Clause requires it be followed (7th Amendment for jury
(Gasperini), art III. For jurisdiction (State law violates constitution), maybe FRCP 4, maybe FRCP 59)
▪
If no fed directive on point, onto Erie/RODA
–
Clear substance? Follow state law because it provides the “rule of decision”
–
Clear procedure? Follow federal law (FRCP 4, paper size, days to answer complaint, availability of and grounds
for MSJ, MTD, MFJ, etc.)
–
Neither clear? Then form and mode via Gasperini.
▪
Follow state law unless good reason not to do so.
Erie Doctrine Answer Example
The ___ is a classic Erie problem. There is complete diversity between blank and blank. Moreover, the question is whether
the state law INSERT conflicts with the federal law or practice of INSERT. If the claim were a federal directive on point, the
Supremacy Clause of the 7th Amendment would force it to be followed. Hanna. Analyze why it isn't a fdop here. Because it is not a
federal directive on point, to determine whether the federal court can hear it, the court must analyze the claim under the Erie
doctrine. The Erie doctrine states that federal courts must apply state substantive law when sitting in diversity and follow federal
procedural law when needed.
Parties Wishes
-
What plaintiff would want applied… because.
-
What defendant would want applied… because.
Hanna Doctrine
-
Is it a federal statute on point?
-
No because ____.
The country's form of government, federalism, lay dormant in the Rules of Decisions act (RODA) which states
"The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require
or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."
Initially, before Erie, courts held that RODA authorized federal courts sitting in diversity to exercise federal common law. Swift.
However, the court in Erie held that a federal court had to use the forum state's law if it was substantive, and that it could use
federal law if the law were procedural.
Erie: Is it clearly substantive or procedural?
-
[Party that wants state law] would argue the state's law/practice is substantive because… (i.e.bound up with the rights and
obligations of the parties).
-
[Party that wants federal] would argue they are procedural because ()
-
The federal court is likely to conclude that the law is substantive/procedural because ____.
Substantive law relates to rights and duties. For instance, the Pennsylvania law addressed in Erie was based on a PA S. Ct.
decision which limited the rights of trespassers to recover damages. The court in Erie held that RODA commanded federal courts to
follow the PA court decision because it was a "law" as referenced in RODA. But the court implied its decision was not only a reinterpretation of RODA but founded on a constitutional basis. Said basis has remained elusive to legal scholars for over eighty years
so for the sake of analysis, it will be assumed that the constitutional basis are the general federalist principles undergirding the
Constitution and any other foundation would not have an effect on _'s claim.
Erie: Balancing the Twin Aims
Party that wants state would argue that following the state law would lead to forum shopping and the inequitable
administration of the law because ____. However, counterpoint.
Applying Gasperini
Erie Doctrine

A federal court that as state law come into it via 1332 (most likely), a state law claim embedded in a federal question,
or through 1367 must apply state substantive law.
o
Erie Guess: This process is based on court opinions from the state's highest court but if the state court hasn't interpreted the issue, the federal
court must make an erie guess by trying to determine how the state court would most likely rule.

Erie based its decision on the Rules of Decision Act.

Talk about federalism. Recognize there is a federal statute RODA.
Known to be Substantive:
Choice of law rules and the statute of limitations. Elements of a tort/contract claim
Law that said you cant recover damages if you're
trespassing. (Erie)
Statutory gap on damages (referenced in
Gasperini)
New York's law controlling compensation awards
for excessiveness or inadequacy (not a damage
cap) (Gasperini
A recovery in federal court significantly larger
than the recovery that would have been
tolerated in state court (Gasperini)
Known to be procedural:
o
Service of process
o
What information the pleading must convey (Twombly Stevens dissent).
What makes law procedural?

Does not interfere, as a general matter, "with the allocation of functions in the federal court system." Scalia dissent
Gasperini.

Does not disrupt the judge-jury relationship in court. Byrd.

It is a rule of review. – Scalia dissent gasperini.
Grey areas:
o
Who bears the burden of proof at a trial.
It is important that a classic Erie mistake is not committed by focusing too heavily on whether the law is outcome
determinative or not as held in York. The determination of whether a law is substantive should keep the outcome
determination test in mind, but it should be guided by the twin aims of Erie.
Outcome Determination Test needs to be guided by the Twin Aims

The twin aims (the motivation) of the Erie doctrine guide the choice on whether a law is substantive or procedural:
o
(1) to discourage forum shopping among litigants
o
(2) to avoid inequitable administration of the laws

Seeks to establish "vertical uniformity"; the idea that the outcome of the litigation should not be grossly
different whether the plaintiff filed in federal or state court.
What makes law substantive?
Outcome determinative (York)
Determines what injuries are
compensable and what amount.
(Scalia dissent.)
It gives a state-created claim
"longer life" than the claim would
have in federal court. Gasperini.
It would limit the size of punitive
damage awards in federal courts.
Browning-firess.
It harms the judge-jury function in the American federal system. Byrd.
Determination is guided by the twin aims of Erie:
(1)to discourage forum shopping among litigants
(2) to avoid inequitable administration of the laws
Byrd
Held that there was a "strong federal policy against allowing state rules to disrupt the judge-jury relationship
in federal court."
Discussed countervailing federal interests: "The federal system is an independent system for administering
justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in
which, in civil common-law actions, it distributes trial functions between judge and jury, and under the influence – if
not the command – of the seventh Amendment, assigns the decisions of disputed questions of fact to the jury."
Gasperini: Form and Mode

Addressed the question: whether NY's new standard "is outcome affective in this sense: Would application of the
standard … have so important an effect upon the fortunes of one or both of the litigants that failure to apply it would
unfairly discriminate against citizens of the forum state, or be likely to cause a plaintiff to choose the federal court"?
o
Majority says the new state law standard of "who decides what" is the "form and mode" of the 7th amendment
re-examination clause, and because of the heavy federal interest, to follow fed law.

A new court standard to set a new trial based on a jury's excessive verdict was easier than the federal court's "shock the
conscience standard"
o

Supreme Court said this new law was substantive. Clearly because the new standard was easier.
7th Amendment: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law."
o
Scalia says BOTH the 7th amendment re-examination clause and FRCP 59 are federal directives on point.

o
(so the form and mode analysis was largely irrelevant because so long as they're on point, its good)
Moliterno says Scalia is right about 7th am and majority is right about federal standard prevailing for
reviewing verdicts because it would indeed lead to offensive vertical choice of law.
Hanna "Doctrine"

Use If question deals with federal statutes clashing with state statutes

Held that "the adoption of Rule 4d1, designed to control service of process in diversity actions, neither exceeded the
congressional mandate embodied in the Rules Enabling Act nor transgressed constitutional bounds, and that the rule
is therefore the standard against which the DC should have measured the adequacy of the service. According, we
reverse the decision of the COA."
o
Held that 4d1 "past muster" because it passed the test that "the rule really regulates procedure, the judicial
process for enforcing rights and duties recognized by substantive law and for justly administering remedy and
redress for disregard or infraction of them."
o
FRCP must be arguably procedural (which they always are because they're made by courts)

Do not have to consider Erie's twin aims.

Court said it granted cert because of the threat to the goal of uniformity of federal procedure.
Notice

The notice must follow Due Process (14th amendment) so that it reasonably conveys the required information and
afford a reasonable time for those interested to make their appearance.
o
The judge writing for the majority opinion described the requirements as being "reasonably calculated" to
inform affected parties about the pleadings.

Assumed that the individual was served with notice that followed State by State Procedures

Follows FRCP 4
o
120 day limit in m
o
Who May Serve - 4(b)(2), and (3)
o
Waiver features – 4(d)
o
International, (f) (see RIO)

o
How to Serve

Person, (section e)
Rio v. RII: Holding from Lexis — "The United States Constitution does not require any
particular means of service of process, only that the method selected be reasonably
calculated to provide notice and an opportunity to respond. In proper circumstances, this
broad constitutional principle unshackles the federal courts from anachronistic methods of
service and permits them entry into the technological renaissance. Although communication
via email and over the Internet is comparatively new, such communication has been
zealously embraced within the business community."
o
Serving a Corporation, (section h)
Venue
•
•
Relevant FRCPs
–
Venue: Generally (1391)
–
Change of Venue (1404)
Forum Non Conveniens,
–
Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court,
or forum, is much better suited to hear the case.
–
Piper Aircraft: "Dismissal on grounds of forum non conveniens may be granted even though the law
applicable in the alternative forum is less favorable to the plaintiff's chance of recovery. The possibility of an
unfavorable change of law should not, by itself, bar dismissal." - Lexis
•
Not a transfer, a dismissal
•
Another forum exists and the chosen forum is "inappropriate . . ."
•
Consider list of factors: "In this case the proper forum was Scotland given that fewer evidentiary
problems would be posed if the trial were held in Scotland; the inability to implead potential third
party defendants clearly supported holding the trial in Scotland; and public interest favored trial in
Scotland, the accident having occurred in its air space, all the decedents being Scottish, and apart
from the manufacturers, all potential plaintiffs and defendants being either Scottish or English."
Counter Claim Example Answer
If BLANK's counterclaim falls under Rule 13a, it falls within the subject matter jurisdiction the court already holds. However, if the
claim falls under Rule 13b, the claim must have its own jurisdictional basis. Look under t/o. Maybe use next paragraph.
Painter v. Harvey recognized "four inquiries to determine if a counterclaim is compulsory:
(1) Are the issues of fact and law raised in the claim and counterclaim largely the same?
(2) Would res judicata bar a subsequent suit on the party's counterclaim, absent the compulsory counterclaim rule?
(3) Will substantially the same evidence support or refute the claim as well as the counterclaim?
(4) Is there any logical relationship between the claim and counterclaim?"
ANALYZE.
Because of the claims relationship between 1, 2, 3, and 4, the court will find _. By ensuring the court hears the claim if the defendant
wants to bring it, the court "avoids the burden of multiple trials with their corresponding duplication of evidence and their drain on
limited judicial resources." Painter v. Harvey.
Joinder
Counterclaim (Rule 13)
a. Compulsory: If counterclaim arises from same transaction or occurrence (the common nucleus of operative fact) than
under 13(A) the defendant MUST file claim in the same case.
a. There is usually 1367 jurisdiction for compulsory counterclaims.
b. Remember that by initiating the suit, the counterclaim-plaintiff subjects themselves to the PJ of the court.
c.
It does not matter if the plaintiff's claim involves federal law and the defendant's counterclaim involves state law.
Painter v. Harvey p. 218.
i. This state law claim can be brought in as a matter of supplemental jurisdiction. Id.
b. Then look at Federal subject matter jurisdiction.
a. Check for 1331
b. Then 1332
c.
Would Supplemental work if needed?
i. If defendant's counterclaim < $75K then use 1367(a) which codified "common nucleus of operative fact."
ii. Then for defendant, rule out failure because of 1367(b) as that only applies to plaintiffs.
c.
Permissive: But if it isn't compulsory that they do so, the defendant can still file additional unrelated claims under 13(B).
a. Check for Supplemental first. Then 1331 or 1332.
Crossclaim (Rule 13(g))
a. Check if against a co-party and if it has arisen from same transaction or occurrence.
b. Check for Federal SMJ.
a. Check for Supplemental first.
c.
If cross claim parties aren't diverse or there is no 1331, check for Supplemental Jurs.
a. Check for 1367(a). Almost always there because crossclaims must arise from common nucleus of operative
fact.
b. Then check for 1367(b). State this rule only applies for plaintiff.
c.
Then check for 1367(c). (Moliterno mentioned)
Claim Joinder by the Plaintiff (Rule 18)
a. Party must have a proper claim under a separate joinder rule before using this one.
b. Rule 18(A) allows plaintiff to insert any and all claims against the defendant.
c.
The claims do not have to be related.
d. Every claim must be checked for federal subject matter jurisdiction separately
Determination of Proper parties (Rule 20A)
e. Who may be joined as co-parties and who can be sued together as co-defendants?
i. Use test:
1. The suit against arises from same transaction and occurrence
2. And the suit arises from the same common question (for example was defendant negligent?)
Example:
> Both Plaintiff 1 and Plaintiff 2 own studio together. Defendant X accidentally burns it down and Plaintiff 2
injures themselves while jumping out of the window. They want to sue Defendant X for negligence together. Rule
20(a)(1) allows it because it arises from same occurrence and common question (was defendant negligent?)
Necessary & Indispensable Parties (Rule 19)
a. Use three part test in prewrites
b. Is the absentee party necessary?
a. Yes, if any of these are met (go through them all);
i. w/o the absentee the court cannot complete relief among the parties already there in the case.
1.
Rule 19(a)(1) based on a policy of efficiency
ii. the absentee's interest may be harmed if they are not joined.
1.
Rule 19(a)(2)(1)
2.
For example, if the absentee owns property with the plaintiff and there's a suit regarding the property.
iii. Does the absentee's interest potentially subject the defendant to multiple or inconsistent
obligations?
1.
For example, if the result of the case would then result in a defendant who lost being then sued again by
the absentee.
c.
Is joinder feasible? - 19(b)
a. Yes, if party's claim falls under personal jurisdiction and subject matter jurisdiction
b. If neither
i. Should we decide to proceed without the absentee or dismiss the pending case?
1. Courts will rarely dismiss unless there is an alternative forum.
ii. If we dismiss is there an alternative forum?
c.
If dismissal is under 19B, absentee has been labeled indispensable.
Defendant brings in third party via impleader – Rule 14
a.
(a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY.
i.
(1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons
and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the thirdparty plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days
after serving its original answer.
ii.
(2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party
complaint—the "third-party defendant":
iii.
1.
(A) must assert any defense against the third-party plaintiff's claim under Rule 12;
2.
(B) must assert any counterclaim against the third-party plaintiff under Rule 13a, and may assert any
counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another thirdparty defendant under Rule 13(g);
3.
(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim;
and
4.
(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party plaintiff.
(3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party
defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's
claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule
12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any
crossclaim under Rule 13(g).
b.
iv.
(4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or
to try it separately.
v.
(5) Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule
against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.
vi.
(6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint
may be in rem. In that event, a reference in this rule to the "summons" includes the warrant of arrest, and a
reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right
under Supplemental Rule C(6)(a)(i) in the property arrested.
(b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. When a claim is asserted against a plaintiff, the plaintiff may bring in a third
party if this rule would allow a defendant to do so.
Rule 20. Permissive Joinder of Parties
(a) PERSONS WHO MAY JOIN OR BE JOINED.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in
one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief
demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants
according to their liabilities.
(b) PROTECTIVE MEASURES. The court may issue orders—including an order for separate trials—to protect a party against
embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and
who asserts no claim against the party.
Intervention (Rule 24)
a. An absentee party seeks to bring themselves in as either a plaintiff or a defendant
b. Intervention of Right - Rule 24a(2)
a. Must show:
i. The absentee may be harmed if not joined
ii. The absentee's interest is not represented adequately
b. This is similar to Rule 19 but the absentee invokes it themselves
c.
Permissive - Rule 24b(2)
a. Absentee's claim or defense has at least one common question with the pending case.
d. Then go over whether the joined claim has SMJ or Supp.
e. Permissive claims tend to fail
f.
Non-1331 Intervention of Right claims also tend to fail
a. If 1331 good to go.
b. 1332 and 1367 rarely succeed
i. 1367B applies to wannabe plaintiffs and abolishes use of rule 24.
ii. 1367B applies to wannabe defendants because it would mean the original plaintiff now had a claim
based on rule 24.
Interpleader – Stakeholder (Rule 22 & Statutory)
A stakeholder forces all claimants into the same case to litigate once and for all.
a. Historic accident resulted in two types:
a. Based on FRCP Rule 22
b. Based on statutory codes: 1335, 1397, and 2361.
b. The two types do the same thing but have different standards for invocation.
a. Similarity for both is that the interpleader court can enjoin the claimants from litigating elsewhere.
Resisting Joinder Example Answer
If BLANK resists being joined by BLANK2, they will do so by filing a 12b7 motion. It will be presumed that their motion was
timely. To determine whether [blank] has properly joined [blank2] under rule 19, the court must use a three-part test to determine
whether joinder is proper: (1) is BLANK's presence required? (2) If blank's presence is necessary, is joinder feasible? And, (3) if the
joinder of blank is not feasible, is [blank] indispensable?
Is BLANK's present necessary?
BLANK's presence is required. Under 19(1)(a), a party required to be joined if feasible is someone who, in their absence, the
court "cannot accord complete relief among existing parties." [Analyze]
Is joinder feasible?
Joinder is/is not feasible. For it to be feasible to join BLANK, under Rule 19(1) BLANK must be "subject to service of
process," and their inclusion will not "deprive the court of subject-matter jurisdiction."
It should not be too challenging to serve BLANK after they have been joined under Rule 19. Under rule 4(k)(1)(b), a person
joined under rule 19 who is "served within a judicial district of the United States and not more than 100 miles from where the
summons was issued" establishes personal jurisdiction. (Rule 4h if a corporation or business/rule or 4e if just a person).
The inclusion of BLANK will/will not deprive the court of its subject-matter jurisdiction. ANALYZE.
Because BLANK is/is not subject to service, and BLANK will/will not deprive the court of subject matter jurisdiction,
CONCLUSION.
Pleadings
a. Rules 7 and 10. Pleadings Allowed; Form of Motions and Other Papers
b. Rule 8
a. Core ideas in pleading
f. State defenses
b. State jurisdiction
g. Admit, deny, lack knowledge, no response
c. Stating a claim
needed (examples later)
d. Ask for relief
h. Affirmative Defenses
e. Answers
c. Twiqbal
a. Plausibility standard
b. Twombley standard:
i. The two-step process for reviewing complaints:
1. distinguish facts from legal conclusions; and
2. based on those facts, use "judicial experience and common sense" to evaluate whether there is
a plausible claim for relief
ii. "While legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations."
iii. "Nothing about Iqbal changed the basic idea that courts credit Ps for their factual allegations and
reasonable inferences from them" – Moliterno
c. Just cite Iqbal as applying Twombly to all cases.
Motion to Dismiss Example Answer
For BLANK's pleading to be proper, it must state a claim for relief and contain: (1) a short and plain statement of the grounds
for the court's jurisdiction; (2)a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a
demand for the relief sought. It will be assumed that BLANK's pleading meets these requirements and therefore is proper.
[CREAC here] Under the Conley standard of yesteryear, so long as the pleading met the requirements listed above
and it gave the [the defendant] "fair notice of what the . . . claim is and the grounds upon which it rests," it would survive a
12b6 motion. [Analyze]
Howewver, under the new Twombly standard, the motion to dismiss will [conclusion]. In Twombly, citing the discovery
process's high economic costs, the Supreme Court moved away from the more generous Conley standard for notice pleadings
towards a plausibility standard. In Ashcroft v. Iqbal, the court applied Twombly across all types of pleadings and laid out more
precise guidelines for the new standard "reinterpretation."
For a judge, the two-step process for reviewing a complaint after a 12b6 motion has been filed is to (1) distinguish facts from
legal conclusions; and (2) to use "judicial experience and common sense" to evaluate whether there is a plausible claim for
relief. Note, this did not change the fundamental idea that courts credit plaintiffs for their factual allegations and the
reasonable inferences from them. However, as Justice Stevens noted in his Iqbal dissent, the standard goes against the Conley
standard's philosophy to keep litigants in court, and unfortunately for BLANK, they are one of the casualties of the new
standard.
d. Rule 11 (Trump Lawyers Know This One)
a. 3 IMPORTANT THINGS
i. Certification effective every time the document is presented
1. People who argue case but didn't sign doc effectively sign it.
ii. Sanctions are discretionary from the judge
iii. A motion for violation is served but not filed
1. Other side has 21 days to fix problems (the Safe Harbor provision)
2. Can be against lawyer, firm, or firm employee
Discovery

Required disclosures than the Rule 26(f) conference

After submitting discovery plan, then all the fun stuff can begin.
Threshold standard for the scope of discovery is broad and includes: "any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."
P. 317.
Major devices of formal discovery include written and oral depositions, interrogatories, requests for admission, and
inspection and production of documents.
The implications of amendments to the scope of discovery Rule 26(b)(2)(c)(3):

1983: "the rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality
that it cannot always operate on a self-regulating basis." It explicitly adopted as part of the scope of discovery defined
by Rule 26(b)(1) which directed the court to limit the frequency or extent of use of discovery if it determined that the
discovery met numerous factors. P. 319.

1983: noted "the court must apply the standards in an even-handed manner that will prevent use of discovery to
wage a war of attrition or as a device to coerce a party, whether financially weak or affluent."

1993: "the information explosion of recent decades has greatly increased both the potential cost of wide-ranging
discovery and the potential for discovery to be used as an instrument for delay or oppression."
o
This Amendment added two factors to the considerations that bear on limiting discovery: whether the
"burden or expense of the proposed discovery outweighs its likely benefit," and "the importance of the
proposed discovery in resolving the issues."

Explosion of e-discovery occurs between 1993 and next Amendment in 2000

2000: committee added a new sentence at the end of (b)(1): "all discovery is subject to the limitations imposed by
Rule 26(b)(2)(I, ii, and iii) [(now Rule 26(b)(2)(C)]"
o
Committee stated that the "otherwise redundant cross-reference has been added to emphasize the need for
active judicial use of subdivision (b)(2) to control excessive discovery."

2000: Notes that the use of the "reasonably calculated" phrase to define the scope of discovery might "swallow any
other limitation on the scope of discovery." The committee sought to prevent such misuse by adding the word
"relevant" at the beginning of the sentence, making clear that relevant means within the scope of discovery as
defined in this subdivison

2015: amendments to the FRCP made "proportionality" an even greater component of the discovery process.
o
Change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery
requests.
o
Rule 26(g) makes parties sign off that their discovery request, response, or objection was "not unreasonable
or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the
amount in controversy, and the importance of the issues at stake in the litigation."
Discovery Proportionality Example Answer
FRCP 26(b) limits the scope of discovery. Nonetheless, the scope remains broad. The rule sets the standard as "any
nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the
parties' resources, the importance of the discovery in resolving the issues, and whether burden or expense of the proposed
discovery outweighs its likely benefit." Further, the court can and expand that scope to include matters relevant to the action's
subject matter if need be. Additionally, the information does not need to be admissible as evidence for discovery so long as it is
relevant.
Early in the litigation, both parties must submit mandatory disclosures. FRCP Rule 26a1a. The information the parties must
disclosure that will support their claims or defenses are: (1) the name and, if known, the address and telephone number of each
individual likely to have discoverable information—along with the subjects of that information; (2) a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its
possession; and (3) a computation of each category of damages claimed by the disclosing party. Id. If either BLANK or BLANK wish to
use an expert witness at trial, they must disclose the witness's name, and said witness must produce a written report that
summarizes their findings. FRCP Rule 26 (a)(2).
BLANK ANALYZE BOTH PARTIES DISCLOSURES HERE IF NEEDED. (1) (2) (3).
Both parties will then meet at the FRCP Rule 26(f) conference, where the court shall order time and volume limits for
discovery. The endate for discovery will be set at the conference.
After the Rule 26(f) conference, both parties (within the court's order) will utilize the major devices for discovery:
interrogatories, written and oral depositions, and document production requests. They are responsible for taking proportionality
into account when making their requests. ANALYZE interrogatories. FRCP 28, 33. ANALYZE DEPOSITIONS. FRCP 27. ANALYZE ORAL
DEPOSITIONS. FRCP 30. ANALYZE WRITTEN DEPOSITIONS. FRCP 31. USE OF DEPOSITIONS IN COURT ANALYZE. FRCP 32. PRODUCING
DOCUMENTS ANALYZE. FRCP 34.
[VERY IMPORTANT] Either BLANK or BLANK may serve the other party a "written request to admit, for purposes of the
pending action only, the truth of any matters within the scope of 26b1 relating to: (a) facts, the application of law to fact, or opinions
about either; and (b) the genuineness of any described documents." FRCP 36. ANALYZE BASED ON SUBSECTIONS.
Proportionality
Is the matter privileged?
Is the matter relevant to the party's claim or defense?
Proportionality: The Importance of the Issues at Stake in the Action
Proportionality: The Amount in Controversy
Proportionality: Relative Access to Relevant Information
This is an example of information asymmetry. BLANK-plaintiff is not likely to have much of any relevant information. The
information is asymmetric because of ANALYZE. Thus, the burden will fall on BLANK-Defendant.
Proportionality: Parties' Resources
Just because BLANK-POOR is [DEMONSTRATE LACK OF WEALTH] and BLANK-RICH has [DEMONSTRATE WEALTH] does not
mean either can use the condition of the other to overwhelm them with discovery requests. As noted in the 1983 Committee Note:
"[t]he court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition . . .
whether [the party is] financially weak or affluent." ANALYZE PROPORTIONALITY. [WHAT SHOULD THE COURT AND PARTIES BE
WILLING TO CONSIDER IN THE REDUCTION OF THE BURDEN OR EXPENSE OF DISCOVERY]
Proportionality: The Importance of Discovery in Resolving the Issues
Proportionality: Does the burden or expense of the proposed discovery outweigh its likely benefit?
Subject Matter Scope of Discovery
Instead of "proportionality," the scope of discovery on subject matter matters is "relevance." [FRCP 26b1 discusses limitation.]
Jury
Rule 38(b): You must demand a jury trial even though you have a constitutional right to it. But if no one demands a jury, it's a
bench trial.
The 7th Amendment is the source of the right to a civil jury trial

The 7th Amendment preserves the right to a jury trial in actions at law but not in actions at equity. Because it uses the
word "preserve," unusual analysis results which looks at how jury trials were held in 1791. This will not be done on
the exam but if Moliterno asks for "the process" he's looking for this to be mentioned.

Applies only in Federal court, does not apply in state courts. One of the very few non-incorporated bill of right
amendments. Although many states have something similar.

7th Amendment only deals with civil cases.
Determining 7th Amendment Right To A Jury Test


Was there a 1791 analogous claim to the one the plaintiff is asserting now.
o (Chauffers union case)
 Unions were illegal back in 1791 but Mr. Terry is asserting a claim based on breach of a duty which
the court found analagous to a breach of contract.
You look to the purpose of the remedy
o Is it legal or equitable?
 To compensate its legal and you get a jury
 It can be a legal claim even if it's not referred to as damages.
 Looking for injunction, etc, its equitable
Selecting the Jury
-
-
Rule 48 determines how many jurors there are.
Judge asks the jurors question, and each side is able to strike jurors.
In the question process, each side has unlimited strikes of potential jurors for cause.
c. If they're biased.
d. If they're related.
In addition to unlimited strikes, each side gets three peremptory strikes.
e. Historically, these did not have to be explained.
f. However . . . in the early 90's the Supreme Court stepped in and said that you have to have a race and gender neutral
reason for exercising preemptory strikes.
Equity and Law Differences

Courts of Equity dealt with injunctions, rescissions of a contract, separate judicial orders etc.

Courts of Law dealt with damages.
Standards set in the 1960s that changed the game

We determine the right to a jury trial issue by issue. You do not look at the center of gravity/the important part of the
case.

If an issue of fact underlies both a remedy of law and equity, you must give a jury.

Generally, we will try the jury issues first
Motions related to Jury Trial (Rule 50)
a. The motion for judgement as a matter of law (JMOL) Rule 50(a)
a. For centuries this was known as the directed verdict.
b. This is an exceptional order. Doesn't happen often. The judge takes the decision away from the jury.
c. You can only move for this after the other side has had its chance to present its case.
i. The defendant can move at the close of plaintiff's evidence, and again at the close of all the
evidence.
ii. The plaintiff can move only at the close of all the evidence.
d. Similar to summary judgement but occurs AT the trial.
e. Standard: Reasonable people could not disagree on the result.
b. Renewed motion for judgement as a matter of law – Rule 50(B)
a. Use to be Judgement notwithstanding the verdict (JNOV)
b. Judge has let question to the jury. The court enters the verdict.
c. The losing party enters this motion and if granted, the court takes the judgement away and enter judgement
for the person who lost.
d. Same standard: Reasonable people could not have reached the jury's verdict.
e. JMOL at the close of all evidence is a prerequisite for bringing a JNOV
f. 10 day period to do this
Motion for New Trial – Rule 59
c.
a. Judgement has been entered but there have been errors at trial. There are almost limited grounds.
b. Classic examples:
i. Judge made substantial error at the trial (wrong jury instruction for ex.)
ii. New evidence was discovered after trial that could not have been discovered at the start
iii. Prejudicial conduct by someone (attorney, juror, party)
c. Order of retrial can just be a partial retrial.
i. Can retry for damages if liability and damages are deemed separable
d. Remittitur ("Jury assessment was too high, it shocks my conscience, unless you agree (to plaintiff) to take this
amount of money, I will grant the defendant's motion for new trial)
i. The damages figure shocks the conscience
Relief from a Judgement Rule 59, and 60
d.
Preclusion
(BIGGER)
Claim Preclusion / res judicata (Rush case)
(SMALLER)
–
Either bring a claim and lose, and you lost, or bring a claim without asking for all you could.
–
Both result in claims being precluded forevermore
Issue Preclusion / collateral estoppel
–
Not a claim but an issue (usually fact but not necessarily)
–
An issue litigated, necessary for the verdict, in a legitimate, full-some dispute resolution process, with the
same or lesser burden of proof, should generally not be contested again in the future.
–
General verdicts do not preclude issues due to inability to know what they decided on
–
No one can assert claim or issue preclusion AGAINST someone who was not a party (or successor) in case 1
–
Non-mutual Strategies
▪
Offensive: I use preclusion to make part of my claim (case 2)
▪
Case 1: A v. B, A wins on issue X
▪
▪
Case 2: C v. B, C asserts issue preclusion against B on issue X
Defensive: I use preclusion to defend against a subsequent claim (case 2)
▪
Case 1: A v. B, B wins on issue Y
▪
Case 2: A v. C, C asserts issue preclusion against A on issue Y