Personal Jurisdiction
Personal Jurisdiction in the lower courts
1st Π has burden of proving that court has jurisdiction over the Δ
Most circuits use a 3-part test. (See Picture in old phone)
And then, you have the 9th Circuit, which uses a 7-factor test. (See picture.)
Long-Arm Statutes
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Courts may usually have jurisdiction over Δ to the extent permitted by a statute.
Two Types: laundry-list and to the limits of due process.
So, since courts can only exercise jurisdiction allowed by a statute, these statutes then
permit the court to exercise its authority extraterritorially.
Forum Selection Clauses
They are valid—See Carnival
Forum selection clauses are enforced via §1404(a). “§1406(a) & Rule 12(b)(3) allow dismissal
only when the venue is ‘wrong’ or ‘improper.’ Whether venue is ‘wrong’ or ‘improper’ depends
exclusively on whether the court in which the case was brought satisfies the requirements of
federal venue laws, and those provisions say nothing about a forum-selection clause.” Atlantic
Marine Construction Co. v United States District Court, 196.
Notice & Service
Notice & Service
Rule 4
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Summons let Δ know that a lawsuit is pending against him/her
Identifies the court, the parties, the Π , tells what time to appear.
Summons must be submitted to the clerk of court for clerk’s signature.
Π is responsible for serving summons & complaint
Δ can waive service & has a duty to avoid unnecessary cost& gets notice of
waiver
o Stick and carrot to avoid waiver
o Stick: cost of service
o Carrot: More time to prepare
Rule 4 tells you not only the how but also the whys of how a court can assert
power.
Functions of Service
1) Notice – letting D know what’s going on
2) Compelling – bringing D under the authority of the court.
In Personam- jurisdiction asserted over a person
In Rem- jurisdiction asserted over a piece of property
Quasi-in-rem (defunct)- jurisdiction asserted over a piece of property in order to, in an unrelated matter,
get at the owner of the property (for example, if from the get-go Mitchell had sued Neff’s land because of
Neff’s unpaid bill.)
Relevance of “Full Faith & Credit” -- that part of the constitution here guarantees that all the various
states are co-equal sovereigns.
In Pennoyer, the lower court thought that it was a problem of notice, but the Supreme court couldn’t
figure out that out, and instead made it about jurisdiction.
Mullane v. Central Hanover Bank & Trust
About serving power.
1) NY does have power to ajudicate claims against beneficiaries who reside outside New
York and were not personally served
2) Methods of service must be reasonably calculated to actually inform the Δ
3) If there is no way of serving a person reasonably, constructive notice (such as in a
newpaper) is ok. If, however, there is such a way, that better way must be used.
The Modern Conceptual Foundation of the Law
Fig 1
Pennoyer
Pennoyer v Neff
In a 1st suit, not this one, Mitchell, a lawyer in Oregon, is hired to do some work for Neff, a resident of
New York. Neff fails to pay Michell’s fee (less than $300) and is sued in Oregon court.
Crucially, Neff is summoned constructively.
Constructive Summons- One that is theoretical, not necessarily actual. In this case, that meant that the
summons were published in an Oregon paper, not in a place that Neff would actually read.
Anyway, the court enters in a default judgement against Neff. Then, after all of this, when it comes out
that Neff has some land in Oregon, the court attaches (requisitions, takes, seizes) that land, and sells it at
auction to one Mr. Pennoyer, using the proceeds to pay Mitchell his damages.
Later, in a second suit, Neff sues Pennoyer to get his land back. Importantly, the court makes a ruling
about Due Process, which applies to the states now. See other breifs, writings about it.
In essense, the court in Pennoyer v. Neff creates the idea of “in personam” “in rem” and “quasi in rem”
suits, and also establishes the basic principle of territoriality with regards to sovereignty. I.e. the state is
soveriegn only over that in its borders. Even if Neff had been personally served by an Oregon sheriff
riding on his horse to New York, Neff would still not be under the jurisdiction of the Oregon court
--Miliken v. Moyer (1940)
 It is valid to be personally served outside of the state where the suit was filed.
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A guy had been a resident of WY, was served in Colorado, appealed, lost. I think
because he was “dominciled” in Wyoming. (doesn’t even start fully overturning Pennoyer)
Foundational Case: Pennoyer v. Hayes
Neff was not personally served; constructively served. (See “First Week’s Notes” for
some good details)
-SCOTUS’s analysis of this problem was founded on territoriality. Each state has
exclusive jurisdicition & soveriengty over persons & property in its
territories. Respecting the territory of others is a top priority.
Thought to consider: Have we ever really moved away from this strong
territoriality? How much have we done so?
Formulation of personal jurisdiction in Pennoyer:
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Presence
o
Domicile of the defendant
o
Personal service within the state
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Quasi in rem
o
Attachment of property within the state at the outset of the lawsuit
(but see Shaffer v. Heitner (p. 90)
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In Rem
o
Ownership of property within the state
o
In rem & Quasi in rem: constructive notice is sufficient in certain
circumstances (unsure here about this look it up)
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Consent (appointment of an agent to accept service of process; contractual
agreement to a forum selection clause). [Note that either presence or consent are
sufficient to assert proper jurisdiction]
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Domicile of plaintiff (divorce & custody proceedings)
o
Logical reasoning would show the state needs to be able to grant a
divorce to an “abandoned spouse,” so the state has the power to regulate
the civil status of its citizens or residents.
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Voluntary appearance (waiver; ex-post consent)
DUE PROCESS: Takeaway points from Pennoyer
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Requires a court (state or federal) to have jurisdiction over the party before
the court can adjudicate rights & obligations or renders a judgement.
o
This part stays the same over time.
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Jurisdiction is a function of territoriality/sovereignty
o
This changes over time.
International Shoe Co. v. Washington (1945)
International Shoe & the Modern Approach
Facts: (see “first week’s notes”)
SCOTUS: This whole “presence” thing is anachronistic in a modern society
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Due Process is now a funciton of contacts, not of territory.
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“Fair play and Substantial Justice”
o
Where the lawsuit arises out of defendant’s activities in the forum
state, due process is satisfied.
o
“Sufficient minimum contacts.
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Introduction of Specific Jurisdiction and General Jurisdiction
o
General Jurisdiction
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What Ginsberg calls “all-purpose”
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As long as you are “at home” in the forum state, you can be
sued there for anything you could concieveably be sued for.
o
Specific Jurisdiction
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You must have certain minimum contacts with the state
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AND the suit has to arise out of activies that took place in
the state
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This is two parts:
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“You have activities in the state.”
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“This suit arose because of those activities.”
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Int’l Shoe court case in particular:
o This is a specific jurisdiction suit rising out of action in the forum state
o
A question of Notice: service of process on the “agent” sufficed, as
did mailing it to headquarters
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Justification: Why the radical shift from Pennoyer?
o
The rise of technology
o
Corporations can be “present” in multiple areas all at the same
time
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Central Question in the post-Shoe era:
o
What counts as a contact?
o
“minimum contacts” have become the important part.
Issues: 1) Can Int’l Shoe be sued for not contributing to Washington State’s unemployment tax even
though it is a Delaware company? 2) Can WA obtain said tax w/o violating the 14th Amen.?
New rule of Due Process
*A corporation's “presence,” such as it is, can be manifested only by activities carried on its
behalf by those authorized to act for it.
*____
The same even which renders the Int’l shoe company taxable in the state is that which brings D into the
reach of the state.
Establishes that a person must have “minimum contacts” with the State in question, such that the
summons does not offend “traditional notions of fair play and justice.” Actions in a state by a corporation
can be presence.
Goes from a “bright line standard” in Pennoyer to a flexible standard
To have general jurisdiction, under the Int’l Shoe framework, there must be such continuous and
systematic activity in the state so that you’re effectively in that state. If that is true, then you can be sued
in that state for things both related to an unrelated to the underlying issue.
If non-resident, we have to evaluate the quality & quantity of connections to establish jurisdiction
McGee v. Int’l Life Insurance Co. (1957)
See breif.=, page 87
Basic facts, a CA man is insured by a company, a company is then bought by a TX company, which
offers to continue insuring him, which he takes them up on and scrupulously pays his premiums by mail.
Then he dies. Company (henceforth D) refuses to pay, claiming that he committed suicide. Once sued, D
claims they can’t be sued in CA b/c it would be a violation of due process.
Court says no.
1) If it is convenient enough for them to insure someone in ca, they can be sued there. (I’m not
sure I understood that properly when I first read it.
2) Residents of CA would be at a sever disadvantage if the to go to a “distant state” to pursue
justice.
McGee vs International Life
Still can check “First Week Notes” for this and some good note ideas.
FACTS
SCOTUS says the TX corporation can be haled into court in California
because this suit is based on a contract, the contract is in California, there ya go.
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Notice that the Court makes the argument that territorial boundaries are
almost meaningless.
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Normative Point: Law should adapt as the world changes
o
If you can do business almost anywhere, one should be sued
almost anywhere
o
This is a particular worldview that comes up a lot, and is
contrasted with the other world view, the one in Deckla
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Hanson v Deckla
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Decedent makes a trust in DE then moves to FL & dies
Does Fl. have jd?
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Notice that the reasoning here is that due process isn’t just about notice and
burden on the defendant, but is also about sovereignty & the limitations thereof.
Hanson v. Denckla (1958)
See page 87
Can Florida acquire jursidicition over a DE trustee (or trust, I’m not sure) when the origional maker of the
Trust (the, practically speaking, “posssessor” of it) died in florida?
No.
The problem is, in this case D does not have even minimal contacts with Florida
No acts performed in Florida, so different from McGee. (Why different from McGee)?
One party will not be bound by the “unilateral activity” of another.
Not sure I entirely understand this yet.
Timeline (check veracity)
Pennoyer v. Neff (1877) -- Personal jurisdiction only against those in a given state, in rem and quasi-inrem jurisdiction is invented.
International Shoe (1945) -- Establishes that a person must have “minimum contacts” with the State in
question, such that the summons does not offend “traditional notions of fair play and justice.” Actions in a
state by a corporation can be presence.
McGee v. Int’l Life Insurance (1957) - If a company in X state can conduct business by mail in Y state, it
can be brought under the jurisdiction of Y state.
Hanson (1958) - A defendant needs minimal contacts with X state to be under the jurisdiction of that
state. Unilateral activity of a person in X state w/ Y company is insufficient.
Shaffer v. Heifner (1977) -- “All assertions of State court jurisdiction must be under the standard of
International Shoe.” see pg. 94
The term “Forum State” -- the state which is being used as a forum to decide the outcome, the state in
which a suit is happening
Specific & General Jurisdiction
Specific Jurisdiction- The state has jurisdiction over the entity only in regard to a single activity or
incident (that it, not necessarily in all cases.)
General Jurisdiction- The State has jurisdiction over the thing in all cases where the law is an
appropriate tool (e.g. the person in question is a resident of that state)
General Jurisdiction
What Ginsberg calls “all-purpose”
As long as you are “at home” in the forum state, you can be sued there for anything you could
conceivably be sued for.
General Jurisdiction
Burnham, Physical Presence.
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This is the case where the couple separated. They agreed to divorced based on
“irreconcilable differences.”
Then the wife moved to California, and the husband filed for divorced in New Jersey on
the grounds of “desertion.” Didn’t try to summon her to NJ
Then, while he was in California, he was served while visiting his kids. Served with
another divorce while there.
Yeah he could be served with it, but a bunch of concurrences.
So, you’re subject to general jurisdiction where you’re domiciled. Also where other
things.
Upshot is, if you’re in a state (unless you appear specially, which is not longer a thing),
you’re under its jurisdiction, no matter how fleeting the visit.
The idea that the court says, through its mouthpiece of Scalia, is that
The petitioner’s argument is that all assertions of state-court jurisdiction must be under
International Shoe. The point of the supreme court’s argument here is that that only
applies to in-rem and “quasi-in-rem” actions.
Goodyear v. Brown
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Paris Bus accident with a North Carolina resident deceased.
The family sues the subsidiaries; relatively easy, no activities of the subsidiaries suggest
that they are at home in North Carolina.
Standard for General: Resident here? If so, you get it.
For a corporation, I believe that is
(a) Incorporated
(b) Primary Place of business
Int’l Shoe Standard
see Daimler AG v. Bauman
Specific Jurisdiction
You must have certain minimum contacts with the state
AND the suit has to arise out of activies that took place in the state
This is two parts: “You have activities in the state.” “This suit arose because of those
activities.”
(1) Δ must have established a minimum contact with the forum state
(2) the claim against the Δ must arise from that contact,
a. a lawsuit “arises from” a defendant’s contacts is the contacts played a role in
causing the lawsuit
(3) the exercise of jurisdiction must not offend traditional notions of fair play and substantial
justice.
Stream of commerce is not enough. The defendant must “purposefully avail” himself of the
privilege of conducting business in that state.
Courts consider the following things to see if litigation would be fair in the forum state:
(1) The burden on the defendant
(2) the interests of the forum state
(3) the plaintiff’s interests in obtaining relief
(4) the interstate judicial system’s interest in efficiency and
(5) the shared policy interests of the states.
see Burger King
For above, see World-Wide Volkswagen Corp. v. Woodson
Bristol-Meyers
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Hundreds of Π sue in Cal. state court
Some were Cal. residents, most were not
Δ does engage in business in Cal.
Issue: Does Cal. have jurisdiction over Δ with regard to the out-of-state plaintiffs?
o I think this is because the question is, did the harm occur there.
SCOTUS says no
o specific jurisdiction (i.e. jurisdiction over a particular issue) arises out of
the harm that occurs.
o So, for the out-of-state plaintiffs, the harm occurred in their state
The central question is, what does “due process” protect against?
Sotomeyer: “Is it really ‘unfair’ to compel Δ to defend in Cal. against out of state
Π when it is already defending the same lawsuit against in-state Π?”
So, is Due Process here more of a tool for interstate federalism?
DP as an instrument of interstate federalism
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not about the burden on Δ; its about sovereignty and its limits
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so, by haling Δ into court in front of out-of-state Π, Cal. divests other states of
their own sovereign power.
Daimler v Brown
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Π seeks to hold Daimler, a parent company, accountable for the actions of a subsidiary
company, MB Argintina.
Vicariously liable for agent theory.
Theory of Jurisdiction in this case: There’s something a subsidiary of this company did in
Argentina, and something another subsidiary of this company did in California, so we can
hold the parent liable for the actions of one subsidiary in the location of the other
subsidiary.
Analysis: the Court is really concerned here about the broad reach (potentially) of the 9th
Circuit’s ruling.
o by the 9th circuit’s analysis, any state where MBUSA has sales, then Daimler
would be generally liable to suit.
Upshot of this case: While Daimler probably has enough contacts with California to be
sued for something where the harm came out of its actions in California, does not have
enough contacts in California to be generally liable for everything in California.
Sotomayor’s argument
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Procedural defect in Court’s analysis
o Daimler did not object to the assertion that MBUSA was subject to general
jurisdiction. So the only question is whether MBUSA’s contacts can be attributed
to Daimler. If so, Daimler ought to be subject to personal jurisdiction.
There was a substantive defect in the Majority’s reasoning, but
o I zoned out a little and I wasn’t entire sure what it was.
Contacts & “Stream of Commerce”
Rule
Worldwide Volkswagon v. Woodson
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A family is in the process of moving from Ny to Az., but has an accident in Ok.
Can VW (Δ) be haled in Ok.?
Δ-centric analysis:
Policy Goals
o Protecting Δ interests
o protecting state sovereignty
o protecting state interest
o Π interest in litigating in a convenient forum
o institutional efficiency of litigating cases in a convenient forum
o institutional
Analysis: Importance of contacts in WWV
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Stream of commerce not enough on its own
did Δ specifically target forum state?
did Δ put product in the stream of commerce with the expectation that it would
end up in the forum state?
Brennan’s Dissent
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Emphasis on fairness principle
Takes a McGee position: It’s no longer the 19th Century
Minimizes importance of contacts with the forum state
McIntyre v. Nicastro
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Guy gets 4 fingers ripped off (in NJ)
McIntyre says
o We have no idea of this, we just gave the merchandise to a distributor
Fair play & substantial justice means that Δ purposefully availed itself of doing
business in the forum state.
Implication of all this means that all this “forum state” business allows a lot of
harm
Problem: is there a loophole? (policy question)
a plurality rejects Brennan’s argument. Says personal jurisdiction is about
sovereignty, not about fairness.
(really chew over the dissent in this one)
Reflection Questions for Personal Jurisdiction:
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Why does personal jurisdiction matter?
How useful are the tests for assessing when personal Jurisdiction exists?
Can we maintain coherent notions of territoriality in an increasingly shrinking world? (of
course that assumes the world is shrinking…)
Important Sidenote: When we say “It’s a violation of Due Process,” that’s really just another way of
saying we don’t want that kind of system.
Principles arising:
If you have extraterratorial effects, it is just (fair, equitable, etc) that the state in which those effects are
can serve as the Forum State for redress
Ex ante (def) - before anyone has filed (like, before all the legal proceedings began)
I mean, the real question of all this is, which party is going to bear the cost of litigating in a different
state? It’s a decision of strategic consideration.
Cases
The
Review of Personal Jurisdiction: Comprehension-Checking Question Notes
Q1— 12(b)(2) authorizes motions to challenge personal jurisdiction. Personal
Jurisdiction is waived unless raised by the defendant.
Q2 (p. 200) — (A): Parties can move to dismiss for improper venue under 12(b)(3)
B. Can also move to transfer the case to a proper venue under §1406.
Venue is improper anywhere in California because Calif. has no authority over Δ.
C. See Atlantic Marine Construction about the rules on forum selection
clauses and transferring. I think then that §1404 is how you enforce forum selection clauses,
although it’s best if I go back and look at it. There’s an open question: can you use a §1404
motion to switch venues if the original venue was improper, or only if it was proper.
D. a 12(b)(6) motion goes to the validity of the complaint.
Internet interstate commerce—“purposeful availment”
See table page 270
Rule 15 Amended Pleadings – (a)(1) Amending as a matter of course
See table for Discovery on page 476
Subject Matter Jurisdiction
That is, whether or not the courts can have jurisdiction over this kind of dispute.
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A defense of lack of subject-matter jurisdiction is presented by a Rule 12(b)(1)
motion, which can be raised any time by the court.
Rule 8(a)(1) requires every federal complaint to begin with a “short and plain
statement of the ground for the court’s jurisdiction.”
Louisville & Nashville R.R. v. Mottley (1908)
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p. 210
This was the case where people got a lifetime free pass on the railroads as part
of a settlement, and then Congress passed a law saying that you couldn’t give
free lifetime passes.
The point of this case was that there was no federal jurisdiction, because at its
heart the complaint of Π was for breach of contract.
Diversity
§1332 controls.
Then Diversity (p 218)
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the existence of even a single party on one side with the same state citizenship
destroys diversity,
Two justifications for diversity: the “neutral forum” idea, seems more
mainstream, and the “national case” idea, that cases with national scope and
implication should be heard in a federal court, even if the governing law is state
law
Applicable law: §1332
Redner v. Sanders
This is the case about the guy who was a citizen of the US residing in France, and was
therefore neither a citizen of a state nor a foreign national. Consequently, no diversity.
Hertz Corp. v. Friend (SCOTUS 2010)
Defining what it means to have a principle place of business.
That is, the single place where the heads of the corperation actually conduct the
corporation’s activities. Its “nerve center,” if you will. see p. 226.
Damages Limit for Diversity
See p. 231. There must be damages of at least $75,000 to warrant federal diversity jurisdiction.
Unlike state citizenship, merely having one plaintiff with a claim less than $75,000 does not sink
the whole thing.
As to whether or not you can aggregate claims together to arrive at $75,000, the law is vague but
seems to follow a few guidelines found on page 231-232
Supplemental Jurisdiction
§1367 controls.
Say that Π has claims 1, 2, and 3 against Δ. Federal courts have subject matter jurisdiction over
claim 1, but not over claims 2 or 3. If Π joins claims 1, 2, and 3 together in her suit against Δ,
the court can exercise supplemental jurisdiction over these claims.
The concept is basically, where there is a claim where the court has jurisdiction, the plaintiff can
tack on some other claims that will stick. Sort of roped along with the main thing.
“…the district courts shall have supplemental jurisdiction over all other claims that are so related
to claims in the action within such original jurisdiction that they form part of the same case or
a . . . includ[ing] claims that involved the joinder or intervention of additional parties.” (a)
Dismissing the original case can remove supplemental jurisdiction.
constitutional limits of courts’ power (Art. III)
space for supp. jd. (as per §1367)
regular subject matter jurisdiction
(§1331)
In the use of §1367, there are four variables:
1.
2.
3.
4.
The relationship between the original claim and the claim to be joined
The basis of the original jurisdiction over the case
The identity of the party (Δ/Π) seeking to invoke supplemental jurisdiction
the Rule authorizing the joinder of the party or claim over whom supplemental
jurisdiction is sought.
a. Notice that the rules allow all claims to be joined. So the question isn’t
“can it be joined” but “once joined, would the court have jurisdiction over
it?” So, if a claim can’t be joined, that’s for another reason, like lack of
jurisdiction, rather than that it can’t be joined per se. I think.
Fig. 2: “Cts. always have supp. jd. over compulsory
counterclaims, but they need not have supp. jd. over
permissive counterclaims.”
(A) Supplemental jd. (§1367)
(B) compulsory counterclaims, rule 13(a)
(C) permissive counterclaims, rule 13(b)
A
C
B
When Courts Lack Supplementary Jurisdiction
(A) If original jurisdiction is solely because of diversity, then the dist. cts. lack jurisdiction over
 claims by Π against
o ΘΘ brought in under Rule 14
o Parties required to be joined under 19
o Parties allowed to be joined under 20
o parties intervening under rule 24
 claims by
o proposed plaintiffs (under rule 19)
o persons seeking to intervene as plaintiffs (under rule 20)
(B) Courts may decline to exercise supplemental jurisdiction if the claim raises a novel issue of
state law, if it has already dismissed the claims over which it had original jurisdiction, if the
supplemental claim overshadows the original claim, or for some other reason. §1367(c)
Statute of limitations can be tolled see §1367(d)
Erie
What is an Erie case?
A case before a federal court sitting in diversity, the cause of action of which arose under state
law.
Rule:
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In diversity cases, the only source of substantive law must be that of the states.
Whenever states supply the governing law for claims, the federal courts will look
to the state substantive law for the claim.
When doing Erie analysis
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See if there are any Federal Rules that at all touch on the issue
… go from there. Gasprini or Shady Grove Approach?
Erie R.R. v. Tompkins (U.S. 1938, c.b. 259): When federal courts are sitting in diversity, or
when the courts are deciding issues of state late (such as if they are joined) federal courts are
bound by state common law. Erie can
The Twin Aims of Erie: (1) To discourage forum-shopping, and (2) to avoid unequal
application of the law.
Why: Because you have to have a theory of power. All power, all authority stems from
the legislature. In many states, the legislature has granted law-making authority to the state
courts. E.g. (this isn’t real) “The doctrine of torts in the state of Pennsylvania will be determined
by the common law as applied by the courts of Pennsylvania.”
§1652: One of the short ones (not a useful list). Basically, ~“State law will control in cases
unless specially provided otherwise by acts of Congress, the Constitution, or Treaties of the
United States.”
Guaranty Trust Co. v. York (U.S. 1945, c.b. 268): In this case, NY law controlled. The statute of
limitation had, by NY law, already run, but by federal equitable tradition that wouldn’t matter.
App. Ct. upheld Fed. jd. SCOTUS overturned.
Takeway: This cases establishes that Erie articulates an approach that touches all of these
questions. “In essence, . . . in all cases where a federal court is exercising jurisdiction solely
because of the diversity of citizenship of the parties, the outcome of the litigation in the
federal court should be substantially the same, so far as legal rules determine the outcome
of a litigation, as it would be if tried in a State court”
General rule: follow state rules if outcome-determinative.
Byrd v. Blue Ridge (U.S. 1958, c.b. 272): Despite Guaranty Trust, holding that a plaintiff is
entitled to a jury trial in federal court, as per federal law, despite state law providing otherwise.
“The policy of uniform enforcement of state-created rights and obligations . . . cannot in every
case exact compliance with a state rule.”
Holding: “We do not think the likelihood of a difference result is so strong as to require
the federal practice of jury determination of disputed factual issues to yield to the statue rule in
the interest of uniformity of outcome . . . [¶] Reversed and remanded.”
Context: a backing-away from Guaranty Trust.
Hanna v. Plumer (U.S. 1965):
Question: Service of process under state or federal law?
You cannot consider an Erie question without reference to the twin aims of Erie.
Holding: State laws of procedure cannot displace specific, enumerated federal rules and
laws.
“For where neither the Constitution, a treaty, nor a statue provides the rules of decision or
authorities a federal court to supply one, ‘state law must govern because there can be no other
law’” – Scalia in Shady Grove, *416, emphasis added.
Flowchart for Erie Analyses
Gasperini & Shady Grove
Gasperini v. Ctr. for Humanities (1996) & Shady Grove v. Allstate (2010):
Rule of Thumb: “Federal procedure rule and state substantive rule control when a federal court is
sitting in diversity.”
However, when a federal procedural rule conflicts with a state substantive rule….
Scalia: “Federal procedural rule controls regardless.”
Ginsberg: “One should accommodate the substantive goals of the state rule as much as
possible within the confines of the federal procedural rules.”
Gasperini:
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
This is the case where the guy sued for money for the originals of his photographs.
There’s a NY State codified standard for judicial review regarding the size of jury
awards, one that is more stringent than the common-law “shock the conscience” test.
 Π argues that that is just a procedural thing and therefore nonbinding on federal courts.
 The question is as follows: The Seventh Amendment forbids the federal courts from
reconsidering any facts tried by a jury. On the other hand, the NY directive to the state
appellate division has a stricter standard for overly-large jury awards than does federal
common law. What gives?
 The Court holds that the state standard controls, sort of. The Federal court cannot apply it
procedurally; that is, the NY directive gives the NY appellate division power that would
be inappropriate to give the 2nd Cir.
 The 2nd circuit, acting as if it were the NY appellate division, enacted remittitur.
 The US S. Ct. overturned this, sending it back to the trial court, but instructing the trial
court judge to revise his ruling to conform with the NY “deviates materially” standard.
 The reasoning is as follows:
o Premise: the Federal court system is required to preserve its own process.
o Premise: the Federal court system is required to follow Erie
o Question: can federal courts give effect to the substantive thrust of §5501(c)
without untoward alternation of the federal scheme for the trial and decision of
civil cases?
o Under Erie, in diversity state substantive law and federal procedural rules control.
o §5501(c) is a procedural directive with a substantive end.
o Therefore, the proper course of action is to observe the substantive end of §5501
(c) without violating federal procedure.
o The Federal Circuit Court cannot, under the 7th Amendment, overturn the jury’s
verdicts on the finding of facts. Also, as a practical matter, it is worse at
evaluating such things.
o However, the District Court has the power to apply the standards of State law.
 Therefore:
o The 2nd Cir’s holding is overturned because it lacked the power to review the
jury’s verdict
o The case is remanded to the District Court to apply the standard that the 2nd
Circuit tried to apply.
 Upshots: (1) The NY standard, while framed as a directive to the appealate division of the
state court system, still controls, as it would if it were a damages-limiting statute. (2)
Remittur, however, can only be done by the District Court.
Stevens’s dissent (the one Prof. decried as mush-mouthed)
 Stevens would affirm the judgement of the 2nd Cir.
 Basically bowing fully to state law. While state laws of procedure do not bind federal
courts, this is a substantive thing. “That New York has chosen to tie its damages
ceiling to awards traditionally recovered in similar cases, rather than to a legislatively
determined but inflexible monetary sum, is none of our concern.”
 Since no 7th Amendment issue would arise if the Circuit Court were overturning a
District Court decision because of a New York statute that provides for an upper limit
on damages, then it shouldn’t arise here either. “New York’s [damages] limitation
requires a legal inquiry that cannot be wholly divorced from the facts, but that quality
does not necessarily make the question one for the factfinder rather than the
reviewing court.”
 Stevens’s position is as follows:
o The direction set by NY law on the NY appellate courts to limit jury awards is
functionally the same as a state statute.
 The other justices disagree with him on this point.
o If it were a state statute, there would be no 7th Amendment issue. (Because it
would be a question of law, not a question of fact.)
o Erie requires that federal appellate courts apply the damages standards of state
law.
o Because, under this construction, there is (a) no 7th Admt issue and (b) a
controlling state standard, the state standard should be applied.
 This seems to be full-blown Erie. Courts seem often to reason along one line, as
opposed to another, because of normative goals. Its common for courts to sidestep
issues, for example, when they could decide a case narrowly.
Scalia’s Dissent
 Basic Differing premise: (a) The Federal Appellate courts cannot set aside civil jury
awards as contrary to the weight of the evidence, regardless of countervailing
concerns. (b) The federal system in no way is bound by state procedure.
 Reasoning
o The Federal judge-jury relationship is sacrosanct.
o Changing the standard that the trial judge uses to evaluate jury decisions
would upset that relationship.
o Therefore, the majority lacks the authority to order the trial court to apply the
New York standard.
 That is, like the majority, Scalia sees a clash between state and federal law. However,
Scalia sees the majority’s “solution” as itself unworkable.
 The value difference is that the integrity of the federal system is more important than
the twin aims of Erie, I think.
 Scalia argues that
In sum:
Gins (maj.): “There is a conflict between state procedure and federal procedure.
Therefore, we should follow the substantive aim of the state procedure within the
procedural framework of the federal courts”
Stevens: “There is an apparent conflict between state procedure and federal procedure.
However, we can construct the state procedure such that it is treated like a law.
Therefore, it can be followed.”
Scalia (with others): “There is a conflict between state procedure and federal procedure.
Therefore, federal procedure must control.”
Shady Grove:
Question: New York law prohibits class actions in suits seeking penalties or statutory
minimum damages. Does this prevent a federal district court sitting in diversity from
entertaining a class action under Federal Rule of Civil Procedure 23?
2nd Circuit:
 r23 only addresses the criteria for “certifying” a class
 § 901(b), the NY law, on the other hand, addresses what kind of claims are
“eligible” for class action lawsuits.
 Therefore, there is no conflict between the two, so we can follow §901(b)
Scalia (Majority)
 framework for making decision:
o 1- First determine if r23 answers the question
o 2- if so, it governs
 unless it exceeds statutory authorization or Congress’s rulemaking
power.
 Reasoning:
 Rule 23 does answer the question
o If the conditions are met, a “class action may be maintained”. The
discretion in “may” is for the litigant, not for the courts. Rephrased, it
states “If the conditions are met, a litigant may maintain his class action.”
o § 901 (b) would prevent a litigant from maintaining his class action even if
the conditions enumerated in Rule 23 were met. Therefore, there is a
conflict.
 If a conflict, FRCP controls.
o equality of outcome is “not a talisman”
o The substantive purpose or nature of the NY law makes no difference.
o A Federal Rule of Civil Procedure cannot be rendered invalid, or bent, or
broken, in a given jurisdiction just because that jurisdiction has a law that
would be frustrated by it.
 “Federal procedural rule control and state substantive rules control”
o Of this general guideline, the majority says that the key test is whether the
federal law is procedural, not that the state is substantive.
Stevens (concurrence & dissent)
 While Congress does have the authority to do what the majority says it does (establish a
supreme law), it has not done this. The rules “shall not abridge, enlarge, or modify any
substantive right.”
 Framework:
o First, see if there is a conflict
o If the rules cannot be reconciled, check whether or not the state rule is so bound
up with a substantive state law right or remedy that it defines the scope of the
right or remedy.
o While the federal rule controls, when a federal rule appears to change a
substantive right, federal courts must consider if the rule can be reasonably
interpreted to avoid that result.
 Like Ginsberg, Stevens believes that if a federal rule substantial modifies, abridges,
enlarges, or alters a state right, it must give way.
o However, for Stevens, that test is a much higher bar.
o “The mere possibility that a federal rule would alter a state-created right is not
sufficient. There must be little doubt.”
o Therefore, in this case the Federal Rule controls, because the high bar of proof
necessary to obviate the Rule has not been met.
Ginsberg (minor. w/ Kennedy, Breyer, Alito)





“If a Federal Rule controls an issue and directly conflicts with state law, the Rule, so long
as it is consonant with the Rules Enabling Act, applies in diversity suits. If, however, no
Federal Rule or Statute governs the issue, the Rules of Decision Act, as interpreted in
Erie, controls. That Act directs federal courts, in diversity cases, to apply state law when
failure to do so would invite forum shopping and yield markedly disparate litigation
outcomes.”
When applying the Rules, consider state interests.
Difference: Where there is a conflict, in as many cases as possible read it so there isn’t
one.
Reasoning:
o Where there is a conflict, in as many cases as possible read it so there isn’t one.
o Since we can (constructively) consider the New York law as a cap on damages, it
becomes a substantive rule, therefore no conflict.
o Without a conflict, the question becomes one of the twin aims of Erie
o Because failing to enforce a state cap on damages would indeed lead to unfair
outcomes and would incentivize forum-shopping, we must apply the rule here.
Final point: This decision undermines the point of Erie, and seems to disrespect both the
will of Congress and the New York Legislature.
Pleading
Twombly & Iqbal
The “two working principles that underlie” the Twombly decision, as expressed in Iqbal
page 388
(a) “The tenet that a court must accept as true all allegations is inapplicable to legal
conclusions.” That is, if a Π asserts a legal, not a factual, conclusion in their complaint, the court
is not under an obligation to consider it true.
(b) “Only a complaint that states a plausible claim for relief survives a motion to
dismiss.” That is, even if there are facts that are pleaded just fine, they have to show more that
the possibility. Allegedly, the standard is one that goes beyond the bare possibility, but instead
shows its reasonably likely. However, this is not a probability standard. The question is not
“more likely than not.”
So, the test is (as articulated in Iqbal, cb 388)
(1) Identify elements that are not entitled to the assumption of truth because they are
mere conclusions.
(2) For the remaining well-pleaded factual allegations
(A) Assume they are true
(B) determine whether they plausibly give rise to an entitlement for relief.
Twombly “obvious alternative explanation”
FRCP 8, 9, 11, 12, 15.
General Rules of Pleading (r 8)




A short and plain claim for relief.
Reposes must admit or deny allegations.
Affirmative defenses must be pleaded affirmatively, examples given 8(c)(1)
Pleading can be done in the alternative, and these various pleadings need not be
factual consistent.
Pleading Special Matters (r 9)


Outlining things that need to be pled specifically or can be alleged generally.
Important for a Twombly world: 9(b): “In alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake…”
Signing Pleadings, Motions, and Other Papers . . . Sanctions (r 11)




Almost an entire internal regulatory framework.
11(b) – Representation to the court.
r11(b) motions can be made by an opposing party or on the court’s own itiative.
There is a 21 day safe-harbor provision.
This rule does not apply to disclosures, discovery.
Defenses & Objections, [a Bunch of Things] (r12)






The pre-answer motion
12(a)- Time to serve a responsive pleading
12(b) – How to present Defenses
o 12(b)(6) motion: Moving to failure to state a claim upon which relief can
be granted. i.e. Even if all the facts alleged are true, Π still lacks a legal
remedy.
o 12(b)(2)-(5): Must be raised by Δ’s first filing.
o 12(b)(1): Lack of subject matter jurisdiction, can be raised at any time.
Motion to strike. 12(f). This challenges a part of the other person’s pleading,
stating that it is insufficient.
Motions for judgement on the pleadings 12(c). relatively rare cases where the
parties’ pleadings reveal agreement about the relevant facts and only the
applicable law is in question.
When are defenses waived? rule 12(h)
Amended and Supplemental Pleadings (r15)




Amending as a matter of course within 21 days…
relating back
15(a) when justice so requires
15(c) the requirements, and leeway to name new parties, or new claims, telating
back
Burdens
(1) Pleading: The burden of bringing or pleading a claim
(2) Production: the burden of bringing forth the evidence
(3) Proof: The burden of convincing the trier of fact
Haddle v. Garrison
This is the case about employment discrimination and retaliation. The Δ moved to
dismiss the suit for failure to state a claim, on the grounds that the Π was an at-will employee,
therefore he suffered no actual injury in being fired. This was upheld all the way to the Supreme
Court, which overturned it. p. 375.
Notice Pleading


What is it:
Are we still in a notice pleading world?
Sorting: there is a sorting value to these things.
Twombly and Iqbal imply that factual allegations consistent with either legal or illegal
activity are insufficient. There’s a plausibility standard.
(R) “Twiqbal” rule: A pleading requires enough facts to state a claim that is plausible on
its face. This is a higher standard than the previous one, which was that a suit cannot be
dismissed for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim.”
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” – Iqbal, c.b. 388
Instead of reciting legal allegations or facts, need to show some facts (that are assumed to
be true) that cross the line from a mere possibility.
Two step process: (1) reject “conclusory” allegations (2) then decide if the remaining
allegations appear “plausible” in “light of judicial experience and common sense.”
Jones v Bock (U.S. 2007, c.b. 403)
There is a law that prisoners cannot bring suits about their conditions unless they have
exhausted all other options. The law does not say where the burden of proof is. One circuit says
that the burden of pleading falls on the plaintiff, i.e. the prisioner. That is, in order for a prisoner
to successfully bring a suit, he must prove that he has exhausted all administrative remedies. The
majority of circuits, however, hold that “non-exhaustion of administrative remedies” is an
affirmative defense. That is, when a prisoner brings a suit, the state (or the corrective system)
can allege that the prisoner has not yet exhausted his remedies as a defense. In the first case, the
prisoner must produce documents showing he has exhausted his remedies to bring the suit; in the
second, the corrections officials can, by producing documents showing the prisoner has not yet
exhausted his options, win the suit without any other defense.
Ethical Pleading
You cannot make groundless accusations. Rule 11. Walker v Norwest Corp. and Christian v.
Mattel are examples of stupid lawyers doing ridiculous things and falling afoul of rule 11.
Answers
Denials (traverses) and Affirmative Defenses (“pleas in confession and avoidance.”)
Zielinski: the weird case from 1956 where the jury was told that a forklift was owned by
defendant when it actually was not. The same insurance company represented both the
defendant and actual owner. The defendant did not deny that they owned the forklift at first.
Because of this, the statute of limitations passed for suing the proper party.
r. 8(b)(6) “An allegation – other than one relating to the amount of damages – admitted if a
responsive pleading is required and the allegation is not denied.”
A Judge can, under rule 7, demand a reply to answer. For a discussion of this see page 435.
Aquaslide c.b. 438: the mistaken identity of the slide, problem of prejudice. Leave to amend the
pleadings. “The burden is on the party opposing the amendment to show prejudice.”
Joinder
Fig. 1: Terms, and the rules that govern them.
Π1
claim
r8 (how to)
r18 (joinder of)
Δ2
permissive joinder (by Π)
r20(a)(2)
OR
required joinder
19(a)(1)
Π2
Intervention
Rule 24
SEE ALSO
Joinder as involuntary Π
19(a)(2)
Counterclaim:
(compulsory) r13(a)
(permissive) r13(b)
crossclaim
r13(g)
Π claim against ΘΔ
rule 14(a)(3)
Θ1
Π claim against outside Θ
r14(b)
third-party claim
r14(a)
Δ1
Θ2
non-joinder of required parties
rule 19(b) (what do)
rule 19(c) (say why)
Incentive to join claims: A plaintiff can join any and all claims it has against a single
defendant (r18). If this creates a huge suit, the judge can sever claims for trial management
purposes using r42(b).
Furthermore, a claim that wasn’t joined properly to a related claim can be precluded.
Bear this in mind when you go back to the Respect for Judgements section. (In fact, I might do
“respect for judgements” right after this. Or on another day.
Rule 19: Required Joinder of Parties
Rule 20: Permissive Joinder of Parties
Rule 21: A short one. In total: Misjoinder of parties is not a ground for dismissing an
action, but the court may at any time, on motion or on its own, add or drop a party, or sever any
claim against a party (that is, render that claim into its own lawsuit).
Required Joinder
Parties must be joined to a suit where necessary to defend the rights and interests of
others. Such parties are called “necessary parties.” Such parties must be joined…
1) If, in Θ’s absence, relief cannot be granted to original Δ or Π.
2) If Θ has an interest that can only be protected by being in the suit
3) If, in Θ’s absence, Π or Δ might be subject to conflicting legal obligations.
If Θ is a necessary party but cannot be added (for reasons of jurisdiction or other
reasons), the court should decide if the suit should proceed anyway.
In so deciding, the court should consider …
1) if proceeding without Θ would prejudice Θ or existing parties.
2) the feasibility of minimizing such prejudice
3) if a judgment without Θ would be adequate
4) whether Π would still have options if suit were dismissed for non-joinder
“Same transaction or occurrence”
r15(c)(B) – relating back of amendments to pleadings
r13(a) – compulsory counterclaims
r20(a)(1)(A) – when persons may be joined as plaintiffs
Joinder of claims
The claims that are joined must have a logical relationship, or are all against the same
pary
Compulsory Counterclaim: Any claim that “at the time of its service” “arises out of the
transaction or occurrence that is the subject matter of the opposing party’s claim.”
c.b. 790 Mosely defines “same transaction or ocurrance.” While there is “no hard and
fast rule,” “all ‘logically related’ events entitled a person to institute a legal action against
another generally are regarded as comprising a transaction or occurrence.” Also, for the second
requirement, “those cases that have focused on Rule 23(a)(2) [which provides a nice framework
for understanding Rule 20] provide a helpful framework . . . In general, those cases . . . have
given [Rule 23(a)(2)] a permissive application so that common questions have been found to
exist in a wide range of contexts.”
Codero: c.b. 782
Permissive counterclaims “must only meet the test for supplemental jurisdiction under
§1367(a)” -- Notice this case is about employee relations and garnishing and shit
Professor wants to flag for us: Are we bound to interpret similar language in the same
way across rules?
Intervention, r 24
A non-party has a right to intervene when



It has a statutory right to intervene, or a conditional statutory right to intervene
It has a claim or defense that shows a common question of law or fact with the
main action
It claims an interest that cannot be protected by existing parties.
A non-party can intervene by


Moving under rule 24 AND
providing notice to existing parties
Discovery
“Discovery Review” Notes




Discovery- a procedural mechanism in civil cases to discover facts, semicooperative in nature.
o problems to be addressed by discovery: information asymmetry, epistemic
uncertainty, asymmetric costs, asymmetric incentives
o party-led, not court-led
Planning for discovery – 26(f)
o The parties must confer as soon as practically possible, at least 21 days
before a 16(b) scheduling conference (for the purpose of arranging the
pre-trial conference), or, likewise, 21 days before a 16(b) scheduling order
is due
o The purpose of this is to explore possibilities for settling, develop a
discovery schedule, make or arrange for rule 26(a)(1) initial disclosures,
discuss any issues about preserving discoverable information, and develop
a proposed discovery plan, the content of which is described in subrule
26(f)(3).
Disclosure Timeline
o This must be, or will be, expanded upon.
o Expert testimony 90days before trail, pretrial discovery 30 days
Initial Disclosure – 26(a). This is a required disclosure of things before those
things are asked for.
o 14 days after the 26(f) conference, or 30 days after being served or joined
for parties being served or joined later
o If the disclosing party could them to support it claims or defenses, it
must disclose:
 name, address, phone number of individuals likely to have
discoverable information







the location of (or a copy of) documents that the disclosing party
has.
 an account of damages and the justification for those damages
 insurance agreements that cover or might cover damages (or other
payments) paid by the party.
o Some actions need not have initial disclosure. See 26(a)(1)(B)(i)-(ix)
Initial Pre-Trial Conference
o This takes place under rule 16(a), NOT 26(f).
o The “Initial Pre-Trial Conference” is not 26(f)
Request to Produce Documents, rule 34
o Served on another party
o Often the first request
o Sometimes served with deposition notice or interrogatory
o Allows requesting party access to documents (tangible things etc)
o Big question here is ESI—Electronically Stored Information
o A non-party may be compelled to produce documents
o Scope limited by 26(b)
Interrogatories (r33)
o Written questions served on the other party (only)
o Linked to rule 25
Deposition (r30)
o Any person can be deposed without leave of the court.
o Attendance can be compelled by subpoena under rule 45
Mental & Physical Exam, rule 35
o only when a party has placed its mental or physical health in controversy
can this be demanded.
o good cause requirement
o only applies to party
Relevance-- r26(b)
o Parties can obtain discovery or other material that is (a) relevant and (b)
not privileged
o Scope of discovery covered by this rule.
o Privilege must be claimed.
The extent of relevance for the purposes of discovery. (Imagine the answer to a question
the limit of
relevance
subject
matter of
action
part of a
claim or
defense
used at
trial
as being a dot that falls somewhere on or outside this chart.)

Privilege
o Attorney-client, Doctor-Patient, etc, definition depends on law.
o Recognition of Privilege in Federal Court
 Diversity suits: State statutes & State Common Law
 Federal Questions: Federal Statutes and Federal Common Law. (Work
product always federal)
o Privilege Log. r 26(b)(5)
 must be made expressly
 log must be maintained, must describe the nature of the unproduced
material so as to enable the other side to see how relevant it is.

Work Product – r26(b)(3)
o defined as the work that the attorney does for himself—like his notebook.
Hickman v. Taylor. Or something like it.
o not discoverable unless
 party seeking discovery has substantial need AND
 equivalent materials cannot be obtained without undue hardship
Experts
o Testifying expert: 26(b)(4)(A)
 Can be deposed
 May be required to write a report
 Most communications and so on are protected, including drafts of the
report. However, communications between expert and attorney that are






about (i) the expert’s compensation, (ii) data relied on, or (iii) assumptions
relied on are not protected by rules 26(b)(3)(A) or (B)
o An expert must provide an extensive report under 26(a)(2)(B)…
 …if that expert is a witness
 …if that expert is retained specifically for giving expert testimony (i.e. not
a fact witness who happens to be an expert)
 …that contains all relevant information about the expert’s testimony &
qualifications as enumerated in (i)-(vi) of this rule.
o A testifying expert who does not have to write a report, 26(a)(2)(C), is usually one
who is a fact witness to the case who happens to be an expert.
 in such a case, there must still be a disclosure stating the subject matter on
which the witness will present evidence and a summary of the facts and
opinions to which the witness is expected to testify.
o Non-testifying expert 26(b)(4)(D)
 cannot be deposed or made to answer interrogatories, except for (i) rule
35(b) or (ii) exceptional circumstances limiting information.
 non-testifying expert
 see Thompson v. Haskell
Duty to Supplement r26(e)
o if prior response is incorrect or incomplete, there is a duty to supplement or
respond.
Signature
o under Rule 26(g), discovery requests must be signed. This brings them within the
purview of the attorney’s r11 obligations.
o Signature is imbued with meaning. It implies the document is (a) complete &
correct (b) warranted by law and/or a proposed modification of the law (c) not
intended to harass etc.
Judicial Management—Courts do have room for judicial discretion in the case of
discovery
o Local rules have their own local modifications
o Rule 26(b)(2)(A) Permits the court to modify certain limits
o Rule 26(b)(2)(C) allows and requires the court to limit the frequency or extent of
discovery that is (i) unreasonably burdensome, like duplicated requests or
information that party could more easily get elsewhere, (ii) contains information
that the seeking could have obtained elsewhere, even if that opportunity is
passed, (iii) outside the scope of rule 26(b)(1)—that is, irrelevant or privileged.
o Rule 26(c) allows the court to issue protective orders. A party can move to be
protected from discover under rule 26(c) if its conditions are met.
Sanctions – Rule 37
o Discovery can be compelled
o Movant’s reasonable expenses can be paid by non-moving party
o Movant must first attempt to confer with non-moving party
o The punishments, i.e. the “sticks,” are listed in rule 37(b)(2)
Key Issues
o Self-directed
o The discovery process, at least in principle, enhances cooperation.
o It’s a mechanism for managing uncertainty
o Tries to balance a number of different values
 26(b)- Proportionality, importance, burdens/expense, asymmetric access to
information
o Inherent tension: self-directed cooperative process that is within an adversarial
system.
Fig 1 A Prototypical Pre-trial Sequence
Fig 2 The Process of Litigation
Summary Judgement & Related Motions
These two have the same standard, the only difference lies in when they happen. Summary
Judgement is before the trial, JAMOL is after a jury trial. They basically have the same
standard.
Summary Judgement: Rule 56 controls. Rule 56 motion. If there is no genuine dispute as to
any material fact and the movant is entitled to judgement as a matter of law (i.e. no reasonable
jury…), then the motion shall be granted. See Celotx, p. 574



The moving party has the burden of proving a “the absence of a genuine issue of material
fact.”
However, this burden may be “discharged” by showing that there an absence of evidence
to support the nonmoving party’s case
in such cases it then goes to the nonmovine party
Celotex: p 576 “After Celotex, the burden of production at the summary judgment stage is the
same as at trial.”
In fact, the situation is “If the basic evidence supporting your claim or defense is not
available at the summary judgement stage, you loose.”
Judgement as a Matter of Law: Rule 50 controls. If a party has been fully heard on an issue in
the context of a jury trial and a reasonable jury couldn’t find for that party on that issue, the court
will grant JAMOL against that party.
New Trial, Altering Judgements: Rule 59 controls.
rule 8
pleading
rule 56
motion for
summary
judgement
rule 50(b)
renewed motion for
judgment as a matter of law
at least one side’s
evidence presented to jury
≤ 30 days
rule 12(b)(6)
failure to
state a claim
disc.
ends
Fig. 2: Timeline of Motions
rule 50 (a)
motion for
judgment as a
matter of law.
0 ≤ 28 days
entry of
judgment
rule 59*
motion for a new trial
*ct. itself may so move
Grounds for a Directed Verdict or Summary Judgment



Requires a motion: 50(a), or 56.
o a 50(b) motion requires a previous 50(a) motion.
Can only be granted if there is no genuine issue of material fact.
If one side has presented evidence such that a reasonable jury could possibly find in that
side’s favor, summary judgment cannot go against that side, regardless of how much
evidence the opposing side has.
o i.e. no weighing. Only: (lack of bare minimum evidence)  (summ. judgment
against)
Grounds for a New Trial




Court can move for a new trial on its own
The grounds for a new trial are based on the Common Law.
Examples of grounds for a new trial
o the jury verdict was against “the great weight of the evidence”
o there was a procedural mistake
o some outside information spoiled the jury
Examples that are not grounds for a new trial
o jury verdict was against the majority of the evidence
o with the exception of proven racial animus, any sort of evidence about the jury
deliberations themselves.
Appeals
What can be appealed?
(a) All final decisions can be appealed.
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that is, a decision that “ends the litigation on the merits and leaves nothing
the court to do but execute the judgment.” Catlin, U.S. 1945.
in actions involving multiple claims or parties, a final judgment involving
one or more, but not all, claims or parties can only be granted if the court
expressly determines there is no just reason for delay. Otherwise, none of
the claims are final until all of them are.
(b) Most interlocutory decisions cannot be appealed, except
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injunctions (but not temporary restraining orders)
orders appointing receivers or directing disposals of property
orders involving a controlling issue of law where opinions may differ
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o if so marked by the district judge
o if also the district judge believes that resolving this issue will help more
speedily resolve the litigation
“collateral orders”1, determined by the “collateral order doctrine” aka the “Cohen
exception”
o an order is a collateral order only if
o (1) It conclusively determines the disputed action
o (2) It resolves an important issue completely separate from the merits of
the action AND
o (3) It must be effectively unreviewable on appeal from a final judgement.
o Examples of (3) would be absolute immunity from suit, or a foreign
diplomat’s immunity from prosecution, because even if reviewed and
found for that party, that party was still sued or prosecuted.
App. Courts can reverse iff
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the judgment is appealed by a party who suffers an adverse judgment
an error appears in the record of the trial court proceedings,
o this implies the issue on which the alleged error arises must be raised in the trial.
that error is pointed out by the appealing party, AND
o unless it was a “plain error:” a narrow exception usually used in criminal cases
where a very clear error not objected to at trial may be grounds for appeal
that error was harmful
o federal courts are forbidden to reverse for “errors or defects that do not affect the
substantial rights of the parties:
Adverse Judgment: That is, a judgment where one recovers less than what is sought. If the
court found against you for some of your claims, but in the end granted you every cent you asked
for, you cannot appeal just so the appellate court can grant you mere nominal satisfaction for
those claims you lost. However, and “adverse judgment” can be one simply of the wrong kind,
not necessarily one that is strictly of a lesser dollar amount.
Findings to be reviewed
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Findings of fact are accorded extreme deference
Findings of law are accorded no deference.
Standards of Review
That is, the lens or framework that the App. Ct. can use to investigate the trial court’s decision
a) De Novo Review: addressing findings of law
“a small class of prejudgment orders that final determine claims of right seperable from, and collateral to, rights
asserted in this action, and that are too important to be denied review and too independent of the cause itself to
require that appellate consideration be deferred until the whole case is adjudicated.” – Lauro Lines s.r.l. v. Chasser
U.S. 1989 c.b. 683.
1
b) Abuse of Discretion: the “plain error” rule. (if confused, look up Wikipedia)
c) Clearly Erroneous: addressing findings of fact
Preclusion & Repose
I. Claim Preclusion, aka “res judicata”
Claim preclusion forbids a party from litigating a claim that was, or could and should
have been, raised in former litigation. An entire second action is barred when
(1) that action concerns the same claim as a prior action,
(2) and is litigated by the same parties or their privies,
a. see “exceptions,” below
(3) and that prior action resulted in a valid, final judgment on the merits.
a. “on the merits” is a bit of a term of art, not entirely literal
b. see rule 41(b)
c. “an ‘adjudication upon the merits’ is the opposite of a ‘dismissal without
prejudice’” – Semtek c.b. 715.
Unlike Issue Preclusion, Claim Preclusion can exclude claims that “should have been” litigated,
but were not. See the Rs of Jgmts c.b. 710. Such claims needed to (a) have existed at the first
suit and (b) be part of the same case or os
non-party preclusion & its exceptions
A person is not bound by previous litigation to which he was not a party unless there was
(1) an agreement by parties to be bound by a prior action
(2) preexisting “substantive legal relationships” (such as preceding and succeeding owners of
property)
(3) adequate representation by someone with the same interests who was a party (such as
trustees, guardians, and other fiduciaries)
(4) a party “assuming control” over prior litigation
(5) a party who loses an individual suit then sues again as the representative of a class
(6) special statutory schemes, such as bankruptcy
“in privity”
This merely expresses the conclusion that the person whose name was not on the caption of the
first case should nevertheless be bound. One can sometimes be bound by previous judgments
one was not a part of, e.g.
a) Someone who buys land can be bound by judgments on the previous owner of that land.
So, if A has won a permanent easement over B’s land, then B sells to C, C and B are
considered “in privity” and any claim C could bring against A for trespass would be
precluded, despite the fact that C never appeared on the initial lawsuit.
Semtek Intl. Inc. v. Lockheed Martin Corp. c.b. 713
Rule:
Issue: Whether the claim-preclusive effect of a federal judgment dismissing a diversity action on
statute of limitations grounds is determined by the law of the state ini which the federal court
sits.
Facts: Π sued Δ in Fed. Dist. Ct. in Cal., where claim was stopped by a 2 year statute of
limitations rule. Π sued again in Maryland, where the statute of limitations was not yet binding.
The Md. state court granted Δ’s motion to dismiss on the grounds of res judicata, effectively
ruling that the Cal. Fed. Dist. Ct.’s dismissal precluded other claims.
Notice that Semtek is not an Erie case. Instead of a federal court trying to apply state law, we
have a state court trying to figure out how to deal with a preexisting federal case.
Question: Should a state court look to federal prosecution doctrine in deciding the scope of a
federal diversity judgment?
Held: No. Instead, the second court should give the diversity judgment the same scope as if it
had been rendered by a state rather than a federal court.
Federal common law in these cases allows for some flexibility, if the state law is counter to
federal interests.
The point is that state courts are not bound by the Full Faith & Credit clause to respect the
judgment of federal courts, per se, so here it is decided by the courts.
The judgment of the Md. court was reversed.
Rule: That the claim preclusive effect of a federal court sitting in diversity is no more or less
than it would be for the state courts.
So, for example, a ruling by the Federal Central District of California sitting in diversity
would not have any more preclusive power than a California state court would.
Tricky thing to watch: A dismissal from a federal court sitting in diversity need not necessarily
have claim-preclusive effect as per 41(b) despite the fact that such dismissals have
preclusive effect in non-diversity situations. It’s a little intuitive when one considers why
and how these things exist. See c.b. 717
Interaction with Joinder…
Talk here about how the two interact.
What is not a judgment on the merits?
rule 41(a): Unless the dismissal order states otherwise, a dismissal counts as an adjudication the
merits unless the dismissal was for lack of jurisdiction, improper venue, or failure to join a party
under Rule 19
What is a claim? What is precluded?
A final judgment is not only final for the claim that was litigated, it is also final for claims that
could have been litigated. Potential defenses in the first lawsuit cannot become causes of action
for the second lawsuit. One muse assert the defense in the first lawsuit, or loose the claim
altogether.
The FRCP go further. Rule 13 holds that a defendant’s counterclaims are also bundled in. That
is, even if a defendant could independently sue on a related claim before the lawsuit, if the
defendant is sued, he must raise the claims then or else have them precluded later.
Taylor c.b. 720
This is the case about the buddies who really liked planes and pursued a FOIA request to the hilt.
Virtual Representation
This is a disfavored doctrine of claim preclusion that falls outside the six normal exceptions to
the non-party preclusion rule. It states that “preclusion is in order whenever ‘the relationship
between a party and a non-party is close enough to bring the second litigant within the
judgment,’” and that the “close enough” judgment should be fact-driven and equitable. The S.
Ct. strikes this down.
The Real Virtual Representation Rule – [necessary not sufficient conditions enumerated]
“A party’s representation of a nonparty is ‘adequate’ for preclusion purposes only if, at a
minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry;
and (2) either the party understood herself to be acting in a representative capacity or the original
court took care to protect the interests of the nonparty, see Richards.
[¶ added] In addition, adequate representation sometimes requires (3) notice of the
original suit to the person alleged to have been represented. [for example, it is required in classaction lawsuits seeking monetary relief, under Richards.]” – Taylor, c.b. 724
Stare Decisis & Virtual Representation
Applying Stare Decisis would allow similar, though not directly related, claims to be quickly
dispatched. However, a virtual representation doctrine would allow similar claims to be barred
from even being brought.
Gargallo c.b. 732
Holding that an Ohio court judgment on an issue that the federal courts have exclusive
jurisdiction over does not preclude other judgments. (because Ohio courts would not give claim
preclusive effect to a prior final judgment upon a cause of action over which the Ohio court had
no subject matter jurisdiction.
That said, it’s still fair to give preclusive effect to dismissals for failure to comply with
discovery.
II. Issue Preclusion, aka “collateral estoppel”
This is when an issue, not a claim, is barred. (The term “collateral estoppel” I think is the
idea that, in subsequent litigation, ideas collateral to the previous litigation are estopped.)
Requirements of Issue Preclusion
The determination is conclusive in subsequent action between the parties on the same or a
different claim when
(1) an issue of law or fact is
(2) actually litigated & determined by
(3) a valid & final judgment, and
(4) the determination is essential to the judgment,2
(5) provided that the party burdened with issue preclusion had an “adequate opportunity &
incentive” to litigate the issue in the earlier proceeding.
(1)-(4) are black letter law, and (5) is derived from extensive caselaw. Unlike Claim Preclusion,
Issue Preclusion can only preclude issues that were actually litigated and decided.
Mutuality
This is the C.L. doctrine in which the former and present lawsuits must be between the same
parties for the purpose of preclusion. While this requirement continues with claim preclusion, it
has been largely abandoned for issue preclusion.
Rs. (2d) of Judgments §29, Issue Preclusion in Subsequent Litigation with Others.
c.b. 754
Defensive/Offense Collateral Estoppel
Defensive Issue Preclusion: A defendant estops a plaintiff from asserting a claim that said
plaintiff previously litigated and lost against another defendant.
Offensive Issue Preclusion: A plaintiff estops a defendant from relitigating the issues which the
defendant previously litigated and lost against another plaintiff.
While conceptually similar, Offensive Issue Preclusion does not promote judicial economy in the
same way that Defensive Issue Preclusion does. The first prevents a plaintiff from relitigating
over and over again to different defendants. The second can incentivize a plaintiff to “wait and
see” instead of joining an existing action against a potential defendant.
So, while Offensive Issue Preclusion is not barred, the trial courts then have broad
discretion in when and how to permit it. See c.b. 748, Parklane
Parklane itself is the court case which permits nonmutual preclusion: that is, a party not bound
by a ruling can nevertheless assert estoppel against a party that is bound by that ruling.
2
c.b. 741
Exception: The US Gov’t is not bound by this. That is, if A sues the U.S. and prevails,
relitigation of that issue is blocked only between A and the U.S.. Party B cannot take issues
decided in that earlier case and use them against the U.S., even though he could do so if, say, the
earlier case were Party A v. Big Wall Street Bank Co. LLC. and he were now also suing Big
Wall Street Bank Co. LLC instead of the U.S.
III. Boundaries of Preclusion
Both Preclusion Doctrines are judge-made law and shouldn’t have too much power then.
Claim Preclusion: This one is pretty straightforward in its exceptions and can be easy to apply.
There are fewer opportunities for anomalies. Basically, only if (a) the law has changed or
(b) there is a substantive policy reason giving rise to a specific exception, will there be an
exception to claim preclusion. c.b. 756
Issue Preclusion: More complicated. See c.b. 757 for a more precise enumeration of the reasons
generally enumerated below. Exceptions apply if
(a) The prior action was unreviewable as matter of law
(b) The issue is one of law and
a. the current and prior claims are substantially unrelated OR
b. the law has changed or some other substantial risk of inequitable
application of the law appears.
(c) The two courts (prior and current) are extremely different in quality,
thoroughness, or jurisdiction.
(d) The burden of persuasion was much higher in the prior action than in the current
one, or was otherwise substantially different (like being on a different party).
(e) This issue really needs to be determined, because
a. of the needs of parties not in the suit,
b. of the public good
c. it couldn’t have been predicted at time of the prior lawsuit that this issue
would rise again
d. there wasn’t an adequate opportunity or incentive for the party to get a
full and fair adjudication in the prior suit.
IV. Repose: Collateral Attack and Reopened Judgement
Collateral Attack: Attack on a prior judgment in a new case (i.e., not by direct appeal). Also
called an indirect attack.
Within the context of the American system, this is generally not allowed. Any claim that was or
could have been litigated in the previous case may not be relitigated, and any issue that was
litigated may not be relitigated in a second proceeding by a disappointed litigant. Furthermore,
Full Faith & Credit prevents this from happening.
HOWEVER one can contest the enforceability of the prior lawsuit on the ground that the court
rendering the initial judgment lacked the jurisdiction to decide it—because such a judgment
(rendered without jurisdiction) would not be entitled to Full Faith & Credit.
Full Faith & Credit demanded by §1738
V.L. v. E.L. c.b. 759
This was the case involving the same-sex couple, where the spouse was made the legal parent of
the children with the birth mother’s consent without the birth mother giving up her rights. This
was a Ga. position. Then, in an (apparently acrimonious) separation, the birth mother sued to
overturn this. The Ala. courts allowed this collateral attack on the Ga. family courts by saying
that the Ga. courts didn’t have jurisdiction. The S. Ct. smacked this down quick.
Reopened Judgment: rule 60(b).
Sometimes, a ruling needs to be overturned but an appeal cannot be done. For example,
litigant who discovers after the fact fraud on behalf of the opponent. In such a case, the court
didn’t make a mistake so you can’t appeal that. e.g. also a default judgment entered against
someone who was never served. Reasons for reopening judgments are listed (or so the book
implies), in rule 60(b)
grounds for relief from a judgment or order 60(b)
(a) mistake, inadvertence, surprise, or excusable neglect
(b) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under rule 59(b)
(c) fraud…, misrepresentation, or misconduct by an opposing party
(d) the judgment is void
(e) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable, or
(f) any other reason that justifies relief.
This however is limited. See
U.S. v. Beggerly
the case about the island and suing and whether or not it was private land or included in the
Louisiana purchase.
 In that case, the Court declines to reopen a judgment even in the face of newly discovered
evidence because the error did not rise to the level of a “grave miscarriage of justice”
Courts are reluctant to use 60(b), and constantly stress that it is not a replacement for
appeal. More like a “break glass” thing.
This underlines the principle that a trial is not about perfect factfinding, but is instead
about making a case. Sometimes, life just has to go on.