Exam Tips:
Issue Spotting 

Read the fact pattern and look for issue triggering facts, and annotate

Read the question and annotate

Refer to your outline to get a sense of the relevant issues related to the question

Repeat if time allows
Logical Organization 

Structure = macro-structure including overarching rule statements, organization by
issues, headings, and sub-headings)

Organization by issues and sub-issues

Do not organize chronologically
Legal Analysis 

Issue (does answer identify a genuine legal issue?)

Rule (does answer correctly discuss the applicable legal rule?)

Application (does the answer clearly and systematically apply the law to the facts?)

Conclusion (does the analysis state a convincing legal conclusion?)

Evaluation (does the answer evaluate the strength of the conclusion or significant
counter-arguments?)
 Do this when you can refer to legal arguments or policy issues genuinely
implicated by the facts
Linguistic Signals 

Issue: “the first issue is”

Rule: “under” or “according to”

Application: “Here” or “In this case”

Conclusion: “Therefore”

Evaluation: “However” or “On the other hand”
Five Civil Justice Themes:
1) civil justice values – balancing justice and efficiency
2) ethics and strategy – some strategic choices may be unethical
3) systemic bias – racial and otherwise and what are the implications
4) AI and technology
5) cost effectives – how can lawyer resolve client disputes in a cost-effective manner that provides
affordable access to justice
Color-Codes



Issues
Over-arching rule statements
Sub-issues/Rule Statements
1


o
o
I.
Cases
Federal Rules of Civil Procedure
IRAC+E (Evaluation)
There will be a question having to do with the civil justice themes.
1. Might want to add separate outline for civil justice themes
FORUM SELECTION- (PAGE 3)
Part A. Personal Jurisdiction (which state)
1. Due Process
a. Contact-Based Personal Jurisdiction
i.
Minimum Contacts
1. Purposeful Availment
2. Unilateral Activity
3. Foreseeability
4. Specific and General Jurisdiction
ii. Fair Play and Substantial Justice
b. Consent-Based Personal Jurisdiction
i.
Voluntary Appearance
ii. Contractual Consent
2. Long Arm Statutes
3. Adequate Notice and Service of Process
Part B. Venue (which district)
1.) Determining Proper Venue
a. Residence-Based
b. Events and Property Based
c. Fall Back Rule
2.) Objecting to Proper Venue
3.) Change/Transfer of Venue
Part C: Which Country (Forum Non-Conveniens)
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1) Adequacy of Alternative Forum
2) Private and Public Interest Factors:
3) Degree of Deference
Part D: Subject Matter Jurisdiction (Which System)
1) Federal Question Jurisdiction
2) Diversity Jurisdiction
Part E: Supplemental Jurisdiction
Part F: Challenging Subject Matter Jurisdiction
Part G: Removal/Remand
II.
Determining the Applicable Law (page 18)
III:
Initiating and Responding to Litigation (page 19)
IV:
Discovery (page 25)
V:
Ending Litigation without trial (page 35)
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I. FORUM SELECTION
A: Personal Jurisdiction- The issue is whether (court in given state) has authority to adjudicate
a case against the defendant.
: For a court in a given state to assert personal jurisdiction, two requirements must be satisfied:
1. The requirements of US constitutional DUE PROCESS AND
2. The requirements of state law (LONG ARM STATUTE).
 Two more related requirements must be met:
3. Adequate Notice in the forum state
4. Service of Process in compliance with the rules
1. CONSTITUTIONAL DUE PROCESS- The issue is whether DP requirements are satisfied?
 To satisfy the due process requirement for personal jurisdiction, there must be either:
o Contacts-based personal jurisdiction
 Defendant has sufficient minimum contacts with the forum state
 OR
o Consent-based personal jurisdiction
 Defendant has consented to jurisdiction in the forum state
A. Contacts-Based Personal Jurisdiction
(i) Minimum Contacts
AND
(ii) Fair play and substantial justice
a) According to the Supreme Court in International Shoe, in order to satisfy contacts-based
due process, the defendant must have certain (1) minimum contacts with the forum
state such that the maintenance of the suit (2) does not offend traditional notions of fair
play and substantial justice (this applies to corporate defendants and individuals and
property in forum state, according to Shaffer).


(i) minimum contacts with the forum state and
(ii) the assertion of PJ would not offend traditional notions of fair play
and substantial justice (this applies to corporate defendants and
individuals and property in forum state, according to Shaffer)
(i) Minimum Contacts:- First, for a state to assert personal jurisdiction within the
requirements of due process, the defendant must have certain MC with the forum
state.
o In order to establish minimum contacts, the following requirements must be
met:
1. Purposeful Availment
2. the contacts are not the result of the unilateral activity of a person other
than defendant
3. Foreseeability
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4. Extent and relatedness (“Nexus Requirement”) (GJ, SJ, and TJ)
 The Plaintiff's claim must be related to defendant's contacts with the
forum state (SPECIFIC JURISDICTION) OR the defendant must be athome in forum state “continuous and systematic” (GENERAL
JURISDICTION)
1. Purposeful Availment
(a) The court in Hanson stated the defendant must have purposefully
availed itself to the privilege of conducting activities in the forum
state, thus invoking the benefits and protections of its laws.
(i)
In Hanson, a bank’s customer moved to Florida, and
that connection was deemed “unilateral activity” not
attributable to the bank for jurisdictional purposes
(b) Stream of commerce: The plurality decision in J. McIntyre stated
that defendant’s transmission of goods permits the exercise of
jurisdiction only where the defendant targeted the forum; it is
not enough that the defendant might have predicted that its
goods will reach the forum state.
(c) Internet: The court in Abdouch applied the Calder Effects Test
(only applicable to intentional torts) which examines whether the
defendant knew and intended the consequences of its actions to
be felt in the forum state. A defendant’s tortious acts can serve as
a source of personal jurisdiction only where the acts were:
(i)
“Intentional;
(ii)
expressly aimed at the forum state; AND
(iii) caused harm, the brunt of which was suffered--and
the defendant knew was likely to be suffered--in
the forum state”
2. Unilateral Activity- the contacts are not the result of the unilateral activity of a
person other than defendant
a. Hanson established that the unilateral activity of a plaintiff who
claims relationship with a nonresident defendant cannot satisfy the
requirement of minimum contacts with the forum state. It must be
the defendant’s own contacts.
b. The court in Worldwide Volkswagen stated, “unilateral activity of
those who claim some relationship to non-resident defendant doesn’t
satisfy defendant’s contact with forum state.”
3. Foreseeability
a. According to World Wide Volkswagen the defendant’s conduct and
connections to the forum state must be such that he should
reasonably anticipate being hailed to court in the forum state.
i. A defendant must be able to foresee the suit to avoid burden
on defendant for “random, fortuitous, or attenuated
contacts.”
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b. J. McIntyre (plurality decision) stated that it is not enough that the
defendant might have predicted that its goods will reach forum state;
defendant must have targeted forum state in order to be subject to
jurisdiction
i. In order to find a D subject to a state's jurisdiction, you must
establish purposeful contacts with the state, not just the US
broadly.
c. Goodyear and Daimler establish that a corporate defendant can be
sued in in the state where it has its principal place of business on any
claim (general jurisdiction).
i. Basically if you have your principal place of business in a
certain state, it is foreseeable that you could be haled into
court in that state.
4. Sufficient Extent and relatedness of Contacts. For personal jurisdiction to meet
the requirements of due process, defendant must have a sufficient extent and
relatedness of contacts with the forum state. Whether there is sufficient extent of
contacts depends on whether plaintiff’s claim arises out of defendant’s contacts
with the forum state (specific jurisdiction) or not (general jurisdiction), both of
which, according to the Supreme Court in Goodyear, satisfy the International Shoe
standard.
a. Specific Jurisdiction- For there to be specific jurisdiction, the extent of
contacts may be low, but plaintiff’s claim must arise out of (i.e. must
be related to) defendant’s contacts with the forum state.
i. According to Bristol-Meyer Squibb which tightened precedent
from International Shoe, In order to establish PJ for a
defendant whose contacts are not continuous and systematic,
the claim must arise out of or be related to their contacts
within the forum state; in other words, “a corporations’
continuous activity within a state is not enough to establish PJ
over claims unrelated to that activity.” BMS- Claim by claim
analysis required regarding relatedness
ii. Contracts: According to McGee, a state can exercise personal
jurisdiction over a defendant if the plaintiff’s claim is based on
a contract that has a substantial connection to the forum
state. (this case applied International Shoe to a contract
specific suit; it is also distinguishable from Hanson because
there the suit was not related to plaintiff’s contacts with forum
state).
iii. Internet: Zippo Sliding Scale Test (Abdouch) (can be used for
purposeful availment): The leading test for jurisdiction on the
internet, it determines the level of extent of contacts, with the
relatedness to plaintiff’s claims based on how targeting
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occurred. Three types of websites have different level of
targeting:
1. Contractual: Personal Jurisdiction established 
defendant enters into contracts with residents of
foreign jurisdictions that involve the knowing and
repeated transmission of computer files over the
internet.
2. Interactive: Personal jurisdiction is possible 
Interactive websites where a user can exchange
information with host computer. Exercise of
jurisdiction in these cases is determined by:
a. analyzing the level of interactivity and
b. the commercial nature of the exchange of
information that occurs on the website
3. Passive: No Personal Jurisdiction  Defendant simply
posted information onto a website which happens to
be accessible to users in foreign jurisdictions
iii.
Stream of Commerce: SJ is established through the
stream of commerce only if the defendant: 1. Places its
product into the stream of commerce directed at the
forum state; and 2. Engages in conduct purposefully
directed at the forum state.
b. General Jurisdiction (“At home”): For there to be general jurisdiction,
there is no requirement that the plaintiff’s claim must arise out of
defendant’s contacts with the forum state. However, according to
Goodyear, the defendant’s contacts with the forum state must be so
continuous and systematic as to render the defendant essentially “at
home” there.
i. “At-home”: According to Goodyear, the defendants’ contacts
with the forum state must be so continuous and systematic
that it renders the defendant “at-home” in the forum state.
The court in Daimler clarified Goodyear by indicating that “at
home” is:
1. domicile for individuals = according to Daimler, an
individual is “at home” where they are domiciled.
Relatedly, according to Hawkins, a person’s domicile is
determined by (1) their physical presence in the state
and (2) intent to remain.
2. For companies, the places where the defendant is
essentially at home are: (1) principal place of business
(one place only) and (2) place of incorporation.
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a. Under Hertz, we would follow the nerve center test,
which says that the principal place of business in
the "nerve center" where directors coordinate,
direct, and control corporate activities.
3. The court in Daimler uses Goodyear precedent to
establish that a foreign corporation is not subject to PJ
in the forum state due to a lack of systematic and
continuous affiliations in forum state to render it at
home.
c. Transient Jurisdiction/Tag Jurisdiction (when applying this, no need
to perform analysis of basic minimum contacts test): is established
when the defendant is personally served with process while physically
present in the forum state  Burnham plurality opinion establishes
that in-state service (tag jurisdiction) is sufficient to satisfy due
process clause of personal jurisdiction even if presence in state is
unrelated to the claim (not applicable to corporations)
(ii) Fair Play and Substantial Justice: According to International Shoe, due process also
requires that the assertion of personal jurisdiction not offend traditional notions of
fair play and substantial justice. According to the court in World Wide Volkswagen,
to determine whether the assertion of personal jurisdiction would offend traditional
notions of fair play and substantial justice, the court must weigh the five
reasonableness factors: (1) burden on the defendant, (2) forum state’s interest, (3)
plaintiff’s interest in obtaining relief, (4) judicial efficiency, and (5) shared interest of
the states.
1. The first factor is the burden the jurisdiction would have on the defendant
(Prime consideration)
a. Witness relationships, where the defendant is located/does business.
b. Where the burden on the defendant is high, the assertion of PJ is more
likely to be unreasonable.
Therefore, because the burden on the defendant is high, this factor weighs
against the reasonableness of litigating in California.
2. The second factor is the forum State’s interest in adjudicating the dispute
a. Why the state would have an interest in deciding the case, protecting
its residents, promoting safety, regulating conduct within its territory,
interest in manufacturing certain products within the state, deterring
manufacturing of defective products within the state
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b. Where the forum state has an interest in adjudicating the suit, the
assertion of PJ is more likely to be reasonable.
3. The third factor is the plaintiff’s interest in obtaining convenient and
effective relief
a. Where the plaintiffs have close connections, where plaintiff
lives/works, the place where it would be easiest for them to receive
relief. Where would witnesses have to be called from?
b. Where adjudicating the suit in the forum state will be more likely to
provide convenient and effective relief, the assertion of PJ is more likely
to be reasonable.
4. The fourth factor is the interstate judicial system’s interest in obtaining
the most efficient resolution of controversies;
a. Judicial efficiency requires that there be an efficient reason for a court
to hear a case (convenience of the court). Which state law is going to be
applied? The law of the state that the suit is filed in or no? Where the
witnesses will be called from, where litigants live/work. Want to be
efficient as to not waste the court’s money and time. Are the state’s
court’s overwhelmed/overburdened whereas another state’s are not?
b. Where maintaining the suit in the forum state would be the most
efficient way to resolve the controversy, the assertion of PJ is more likely
to be reasonable.
5. The fifth factor is the shared interest of the several states in furthering
substantive social policies.
a. What remedy is available in the forum state, compared to in other
states? What policy is served by the law in question? Encouraging
commerce? Holding corporations accountable? Discouraging forum
shopping? Is this a policy that all states have an interest in?
b. Where maintaining the suit in the forum state undermines shared
social policies, the assertion of PJ is more likely to be unreasonable.
B. Consent-Based Personal Jurisdiction: There are two ways to establish consent-based
personal jurisdiction. 1. Voluntary appearance and 2. Consent by contract (express consent
1. Voluntary Appearance: According to Pennoyer, a court in a given state has personal
jurisdiction over a defendant if the defendant voluntarily appears to defend the suit,
other than for the sole purpose of objecting to personal jurisdiction (a “special
appearance”).
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2. Consent by Contract: According to Carnival, a contractual consent to personal
jurisdiction is valid if it is fundamentally fair (regardless of whether there was an
opportunity to negotiate. There are three circumstances in which it might not be
fundamentally fair: (a) it is intended to discourage legitimate claims, (b) the consent
was obtained by fraud or overreaching, or (c) the defendant did not have notice that it
was giving consent.
o
Consent Clause gives consent to one possible forum in which litigation
can occur.
2. Long Arm Statutes- The issue is whether the state’s long-arm statute allows for a state
allows for personal jurisdiction: In addition to the due process requirements for personal
jurisdiction, the forum state’s long arm statute must also allow for jurisdiction, provided that it
falls within the limits of the due process clause of the United Stated Constitution
a.) Each state has their own statutes regarding personal jurisdiction. State
statutes are either:
i.)
Unrestrictive  Depend on the Due Process Clause and do not
have any additional restrictions.
(1) under California’s long-arm statute, a court in California may
exercise personal jurisdiction over a defendant on any basis
not inconsistent with the Constitution.
Restrictive  Do not give states all of the judicial power that they
would otherwise have under the Due Process Clause.
(1) Gibbons demonstrated how Florida’s two prong
requirement for personal jurisdiction over a nonresident defendant further restricts the requirements of
the Due Process Clause.
iii.)
Rule applies to state courts in the state and federal courts in the
state as well
3. Adequate Notice and Service of Process: In order for a case to proceed once a complaint has
been filed with the court, (1) adequate notice must be given and (2) there must be service of
process.
ii.)
i.)
Adequate Notice: According to Mullane, due process requires that
notice must be reasonably calculated, under all circumstances, to
apprise interested parties of the action and afford them an
opportunity to present their objections.
(1) Notice must be of such nature as to reasonably convey
the required information, and it must afford a
reasonable time for those interested to make an
appearance. Actual notice is not required, but the steps
the notifying agency takes must be reasonable to give
notice.
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ii.)
(a) Reasonableness does not require that each party is
served, because most will receive notice and their
objections will suffice for the ones who are not.
(2) Notice to known defendants requires at least notice by
mail.
(3) Notice to unknown defendants (whose identity and
whereabouts are unknown) can be achieved through a
method such as publication.
(4) Personal service is always sufficient to satisfy due
process
Service of Process: Under Rule 4 the defendant must be served
with process according to several requirements, unless service has
been waived: (include service on an individual and service on an
entity)
(1) Contents of Service: under Rule 4(c)(1) the plaintiff must
give the defendant a copy of the complaint and a
summons.
(2) By Whom:
(a) under Rule 4(c)(2), the service must be by any
person 18 years or older who is not a party
(b) under Rule 4(c)(3), the plaintiff may request service
by US Marshal or deputy Marshal or specially
appointed person.
(3) Methods of Service: for individuals and corporations
(a) Under 4(e)1, an individual may be by following
state law for serving a summons in an action
brought in courts of general jurisdiction in the state
where the district court is located or where service
is made.
(b) Under 4(e)2, they can be served by doing any of
the following:
(i)
Delivering a copy of the summons and of
the complaint to the individual personally
(ii)
Leaving a copy of the summons and
complaint at the individual’s dwelling or
usual place of abode with someone of
suitable age and discretion who resides
there
(iii)
Delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.
(c) Under Rule 4(h), a corporation must be served in a
judicial district in the US:
(i)
in the manner described in 4(e)(1), or
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(i)
delivering a copy of the summons and the
complaint to an officer or agent of the
corporation, and (if required by statute) by
mailing a copy of the summons and
complaint to each defendant
(2) Waiving Service: Rule 4(d) and Rule 12
(a) Under 4(d)(1) the plaintiff may request that the
defendant waive service of a summons. (Any
individual/corporation has a duty to avoid
unnecessary expenses of serving the summons)
(b) Under 4(d)(2) if a defendant located fails to sign
and return a waiver requested by a plaintiff, the
court must impose sanctions on the defendant;
(i)
4(d)(2)(a): the expenses later incurred in
making service; and
(ii)
4(d)(2)(b): the reasonable expenses,
including attorney's fees, of any motion
required to collect those service expense
(c) Under 4(d)(3), if a defendant submits a service
waiver in a timely manner, they receive more time
to answer the complaint: 60 days after request
sent in US, 90 days outside US
(d) Under 4(d)(4), proof of service is not required after
defendant files a waiver.
(e) Under 4(d)(5), waiving of service doesn’t waive
objection to personal jurisdiction
(f) Under Rule(12)(a)(1)(A)(ii), if D waives, it extends
the time to answer the complaint from 21 to 60
days for domestic D's and 21 to 90 days for foreign
D's.
(3) Objections/Defenses
(a) 12(b)(4)-Insufficient process- issues with
documents themselves
(b) 12(b)(5)- Insufficient service of process- issue with
HOW service was done (being served at vacation
home)
Part B. Venue
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B. Venue- The issue is whether the U.S. District Court for [?] is a proper venue.
1.) Determining proper venue: Under U.S.C Section 1391(b), there are three ways to
establish proper venue in a judicial district: (a) residence-based, (b) events or property
based, OR (c) fall-back rule when the first two do not establish proper venue. Also (d)
exception rule for non US-resident defendant (down below at iii.)
a. 1391(b)(1)  Residence-Based: Under §1391(b)(1), if defendants are from the same
state, venue is proper in any district where any of them reside. Residency is defined
as:
i. Individuals: Under Section 1391(c)(1), a natural person, including an alien
who is a permanent resident of the US, shall be deemed to reside in the
judicial district in which that person is domiciled.
ii. Corporations: Under Section 1391(c)(2), an entity (corporation) shall be
deemed to reside in any judicial district in which said defendant is subject
to the court’s personal jurisdiction (where it maintains its principal place
of business and where it is incorporated (see Daimler and Goodyear (and
then nerve center text from Hertz) or where the incident occurred due to
specific jurisdiction.
1. Under Section 1391(d), for residency of corporations in states
with multiple districts, when the corporation is subject to
personal jurisdiction within that state as a whole, a corporation is
deemed to reside in any district in the state if its contacts would
be sufficient to subject it to personal jurisdiction as if the districts
were separate states. If there is no such district, then it is where
the corporation has the most significant contacts.
iii. Non U.S. Residents: Under Section 1391(c)(3), a defendant who is not a
United States resident can be sued in any district.
b. 1391(b)(2)  Events or Property Based: Under 1391(b)(2), venue is proper
where a substantial part of the events or omissions or property giving rise to the
claim occurred, or where a substantial part of the property that is the subject of
the action is situated.
c. 1391(b)(3)  Fall-Back Rule: Under 1391(b)(3), in the circumstance that the
previous two [(b)(1) and (b)(2)] do not satisfy the requirements of proper venue,
then venue will be wherever any defendant (both corporate and individual) is
subject to personal jurisdiction with respect to the action. (if PJ is already
analyzed, just refer to that part of the exam)
2.) Objecting to Improper Venue: There are two ways to respond to improper venue.
Under Rule 12(b)(3), (1) It can be raised by the defendant as a defense. OR (2) the
plaintiff or the court under Section 1406.
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a. By the defendant: Under Rule 12(b)(3), as exemplified in Thompson, defendant
may assert improper venue as a defense in a motion to dismiss (or in its answer
if no pre-answer motion was filed).
b. By the Plaintiff or the Court: Under § 1406, if venue is improper, the district
court shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.
c. NOTE: Under Rule 12(h)(1), a party waives any defense listed in Rule 12(b)(2)-(5)
if it is not included in a pre-answer or, if no pre-answer motions were filed, in the
answer.
3.) Changing Venue: The issue is whether the action can be transferred to another federal
judicial district [to the U.S. DC for the District of…]
a. Venue can be changed under Section 1404(a) and 1406(a)
b. Section 1404(a) Transfer for Efficiency: Under 1404(a) may be applied when the
venue is proper, but the defendant still wants to file for a change of venue
because they think another venue would be more advantegous This is
discretionary. The district court may transfer but does not have to.  Under
1404(a) three requirements for transfer must be satisfied:
i. Transfer must be convenient for parties and witnesses
1. For transfer to be convenient, the court must consider both
private and public interest factors
a. Private factors: plaintiff’s choice of forum, defendant’s
choice of forum, whether claims arose elsewhere,
convenience of parties, convenience of witnesses, ease of
access to sources of proof
b. Public Factors: whether transferee court is familiar with
governing law, the congestion of the transferee court, and
the local interest of transferee court in determining the
case
ii. Transfer is in the interest of justice (which is a subjective evaluation of
fairness and justice; and
iii. Either of the following two:
1. Parties consent to the district; OR
2. Suit could have been originally brought in the new district 
meaning that there is personal jurisdiction and venue is proper in
the new district
c. Section 1406 is applied when the venue is improper (lawyers typically don’t use
this rule because it opens the possibility of the case getting transferred rather
than dismissed, instead they use Rule 12(b)(3)) if district is improper, courts
can decide either to dismiss the case or transfer it to an appropriate district in
the interest of justice (courts often invoke Section 1406 rather than granting a
12(b)(3) motion due to interest of justice).
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Venue over the anchor claim:
❏ Is venue over the claim proper under a specific statute?
❏ Is venue over the claim proper under the general federal venue statute,
in that either it is filed (a) in a judicial district where any defendant
resides and all the defendants reside in that state; (b) it is filed in a
district in which a substantial part of the events or omissions occurred;
or (c) it is in a district where any defendant can be found if venue is
not proper elsewher
C. Which Country: Forum Non Conveniens-The issue is whether a court can dismiss a case on
the grounds of forum non conveniens.
1. According to Piper Aircraft, there are three factors to be weighed in deciding whether
to dismiss a case on grounds of forum non conveniens: (1) the adequacy of the
alternative forum, (2) assessment of private and public interest factors, and (3) the
degree of deference to the plaintiff’s forum choice.
1. Adequacy of Alternative Forum: According to Piper, a forum is inadequate if
the remedy provided by the forum is so clearly inadequate or unsatisfactory that
it is no remedy at all. Additionally, in order for an alternative forum to be
adequate, it must have jurisdiction over the defendant(s).
2. Private and Public Interest Factors: According to Piper, the following private
and public interest factors should be weighed when considering dismissing for
forum non-conveniens:
A: Private Interest Factors






Relative ease of access to sources of proof
The plaintiff’s choice of forum
The defendant’s choice of forum
Whether the claims arose elsewhere
The convenience of the parties
The convenience of the witnesses
B. Public Interest Factors



Whether the transferee court is familiar with the governing law
The relative congestion of the calendars of the potential
transferee and transferer courts
The local interest in deciding local controversies at home, where
the connection is stronger to the case.
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3. Degree of Deference: According to Piper, a U.S. plaintiff’s forum choice is
given more deference than a foreign plaintiff’s forum choice. This presumption
can only be overcome when the private and public interest factors clearly
support trial in the alternative forum.
D. Subject Matter Jurisdiction: The issue is whether [] court has jurisdiction over the claim.

The federal courts are of limited subject matter jurisdiction. In order to bring a case
before a federal court, a party must establish that the federal courts have subject
matter jurisdiction over the case. There are three ways a U.S. District court assert
subject matter jurisdiction: (1) federal question jurisdiction under 1331; (2) diversity
jurisdiction under 1332; and (3) supplemental jurisdiction under 1367 (not relevant if
only one claim)
1. Federal Question Jurisdiction: The first issue is whether the court has federal
question jurisdiction. Under §1331, the district courts have original jurisdiction
over all civil actions arising under the Constitution, laws, or treaties of the United
States.
1. Well-Pleaded Complaint Rule- According to Mottley, a suit arises out of
the Constitution and laws of the United States only when the plaintiff’s
claim arises from federal law. It is not enough that an anticipated defense
is invalidated by federal law.
2. If federal question jurisdiction is not there: Following the rules of 1331,
the claim, therefore, does not arise under "the Constitution, laws or treaties
of the US," and is based on state law. Therefore, federal subject matter
jurisdiction cannot be based on S1331 federal question jurisdiction.
2. Diversity Jurisdiction- The next issue is whether the [Court] has diversity
jurisdiction. Under § 1332, there are two requirements to establish diversity
jurisdiction: (1) the amount in controversy requirement and (2) the diversity of
citizenship requirement.
1. Amount in Controversy: Under § 1332, in order to satisfy the amount in
controversy requirement, the amount in controversy must exceed
$75,000.00, exclusive of interest and costs.

Legal Certainty Rule: Generally, deference is given to the
plaintiff’s statement of damages sought for purposes of the
amount of controversy requirement. However, according to St.
Paul Mercury Indemnity Co., a lawsuit may be dismissed if the
judge is able to conclude that it is clear to a legal certainty that
the plaintiff cannot recover the amount of damages sought.
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
Under § 1332(b), if a case is heard by a federal court based on
diversity jurisdiction and the final judgment amount is under
$75,000, court can deny costs to plaintiff and impose costs on
plaintiff.

Aggregation: In order to meet the requirements of diversity
jurisdiction, the amount of controversy can be aggregated from
multiple, unrelated claims, so long as the claims involve the same
plaintiff and defendant.
2. Diversity of Citizenship: Under § 1332(a), to meet the diversity of
citizenship requirement, the action must be between: (1) citizens of
different states, (2) citizens of a state and citizens of a foreign state
(unless the foreign citizens are permanent residents with domicile in the
same state), (3) citizens of different states when foreign citizens are
additional parties, of (4) a foreign state as plaintiff and citizens of U.S.
state(s).

Complete Diversity: Under Strawbridge, in order to satisfy the
diversity of citizenship requirement, there must be complete
diversity between the parties, meaning that there can be no
common citizenship between any two opposing parties.

Citizenship for Individuals: Under §1332, for an individual to be a
citizen of a given state, they must be (1) a U.S. citizen and (2)
domiciled in the state in question.
o According to Hawkins, a person’s domicile is determined
by (1) physical presence and (2) intent to remain. Under
Redner, when a person moves, they retain their old
domicile until they have established a new domicile.

Citizenship for Corporations: Under §1332, a corporation is a
citizen of (1) its state of incorporation and (2) the state where its
principal place of business is located.
o Principal Place of Business:” Under Hertz, we would
follow the nerve center test, which says that the principal
place of business in the "nerve center" where directors
coordinate, direct, and control corporate activities.
E. Supplemental Jurisdiction: The issue is whether the US district court that has subject matter
jurisdiction over one claim (original claim), also has jurisdiction over an additional claim that by itself,
does not independently satisfy the requirements of subject matter jurisdiction. (One general rule and
two exceptions:
17


General Rule-Under Section 1367(a) the district courts shall have supplemental jurisdiction over
all other claims when: 1) there is one claim that the district court has original jurisdiction over as
per Section 1331 or 1332, and 2.) the other claims are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the Constitution.
o According to In re Ameriquest: the court has supplemental jurisdiction over a state claim
that is related to a federal claim when a loose factual connection may be sufficient to
confer supplemental jurisdiction so long as those facts are both 1) common and 2)
operative:
1. Common = In order to find that a federal claim and a state claim share common
facts, there must be facts which are relied on by both claims which combine to tell
one story.
2. Operative = In order to find that a federal claim and a state claim share operative
facts, there must be a logical relationship between the claims, such that resolution
or dismissal of the state claim would affect the federal claim.
Sections 1367(b) and (c) provide exceptions to the rule:
o 1367 (c) is a discretionary exception: District court may decline supplemental
jurisdiction over a claim under 1367(c) if:
 The claim raises a novel or complex issue of state law
 The court in Szendry-Ramos v. First Bancorp determined that a state
claim was related to such a specific issue of Puerto Rico law that didn’t
resemble any U.S. version of that law that it was considered a complex
issue of state law
 The claim substantially predominates over the claim or claims over which the
district court has original jurisdiction
 The court in Szendry-Ramos v. First Bancorp determined that a state
claim predominates over the federal claim when: the number of state
claims is greater and the scope of the state claims exceeds the scope of
the federal claims
 The district court has dismissed all claims over which it has original jurisdiction
 In exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
o 1367 (b) is a mandatory exception and only applies when:
 Under 1367(b) the court has jurisdiction over original claim due to section 1332:
(diversity and amount in controversy requirements)
 AND a supplemental claim is brought by a non-original party who is a resident of
the forum state, or a defendant, who is a resident of the forum state, has been
joined by plaintiff. This would destroy complete diversity so the district courts
would not have supplemental jurisdiction over such a claim.
 Why? the traditional justification for diversity jurisdiction is to “open
the federal courts’ doors to those who might otherwise suffer from local
prejudice against out-of-state parties.” If defendant is a citizen of forum
state, there is so risk of prejudice.
F. Challenging Subject Matter Jurisdiction
a) Rule 12(b)(1): the plaintiff can still go back to refile claim in state court, because federal
court just didn’t have the power to hear the claim.
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b) Rule 12(b)(6): (failure to state a claim upon which relief can be granted).
a. A defense asserting that even if all the factual allegations in a complaint are true,
they are insufficient to establish a cause of action.
b. The plaintiff cannot go back and refile in state court because the case was dismissed
on the cases’ merits.
c) NOTE: DISTINCTION BETWEEN 12(b)(6) and SUMMARY JUDGMENT IS AT END OF OUTLINE.
d) Rule 12(h)(3): the court can decide at any time that it lacks subject matter jurisdiction and if
it lacks jurisdiction it must dismiss the action
G. Removal (from state to federal)
1. Requirements and exceptions
 Requirements: Under § 1441, there are four requirements in order to remove an action from
state court to federal court:
1. the district courts must have original subject matter jurisdiction over the claim,
2. removal must be sought by the defendant, (if there are multiple defendants, they all
must consent to removal)
3. the action must be removed to the district court for the district embracing the place
where such action is pending, (venue rule) and
4. if the district court’s subject matter jurisdiction is based on diversity jurisdiction,
there must not be a defendant who is a citizen of the forum state.
 Exceptions: Under section 1441(b)(2):
o Removal is improper when:
 The district court has jurisdiction under Section 1332(a) (diversity and amount in
controversy), and
 Any of the defendants are citizens of the forum state where the action was filed
2. Procedure for removal
 Under Section 1446(a): if a defendant wants to remove a case to federal court, they need to:
o file in the district court for the district in which the action is pending AND
o the filing must contain a short and plain statement of the grounds for removal with a
copy of the process, pleadings, and orders served upon the defendants
 Under Section 1446(b)(1): notice of removal must be filed within 30 days after receipt by
defendant of the initial pleading for claim for relief or within 30 days after service of summons
 Under Section 1446(b)(2): when action is removed under Section 1441(a), all defendants who
have been properly joined and served must join in or consent to removal of action; each
defendant has 30 days
 Under Section 1446(c): a case may not be removed on the basis on diversity jurisdiction more
than 1 year after commencement of action, unless the plaintiff has acted in bad faith; According
to Caterpillar, if federal jurisdiction is proper at the time of the judgment, then a district court's
error in prematurely removing a case from state court to federal court does not warrant
vacating the verdict.
3. Remanding (from federal to state) (or procedure after removal)
Under §1447, plaintiff may move to remand their case if the requirements for removal under §1441 are
not satisfied. If removal was improper, the court should grant the plaintiff’s motion to remand. To
remove, Under 1441, (1) there must be subject matter jurisdiction, (2) removal must be sought by
defendant (if multiple defendants, all of them must have consented) (3) if the district court’s subject
19
matter jurisdiction is based on diversity jurisdiction, there must not be a defendant who is a citizen of
the forum state, and (4) the action must be removed to the district court for the district embracing the
place where such action is pending
 Explanation/rule statement for 3 (Diversity jurisdiction) under § 1441(b)(2), if the
action is “otherwise removable solely on the basis of the jurisdiction under §
1332(a) [that is, diversity jurisdiction],” the action “may not be removed if any of
the…defendants is a citizen of the State in which such action is brought.”
o Tie this into diversity jx analysis: Under § 1332(c)(1), for purposes of § 1332
and § 1441, “a corporation shall be deemed to be a citizen of every
State…by which it has been incorporated and of the State…where it has its
principal place of business and where it is incorporated.” OR a citizen should
be deemed a citizen where they have are domiciled meaning where they
are physically present and where they have intent to remain.
a) Under Section 1447(c): motion to remand must be made within 30 days after filing of the notice
of removal: most common arguments to be made = argue that removing procedure was not met
or that court does not have subject matter jurisdiction
b) Under Section 1447(d): order remanding a case to state court from which it was removed
cannot be appealed
c) Under Section 1447(e): plaintiff cannot, after removal, seek to join additional defendants if it
would destroy subject matter jurisdiction.
II. Determining the applicable law:
1) The issue is whether a U.S. Federal Court (sitting in diversity) must apply state law or federal law?
This issue arises when the federal court’s subject matter jurisdiction is based on diversity jurisdiction
or supplemental jurisdiction. According to Erie, when a federal court is adjudicating a state cause of
action, except in matters governed by the U.S. constitution or U.S. legislation, state law will be
applied. This is necessary to prevent vertical forum shopping and the inequitable administration of
the law. (Twin aims of Erie)
2) Constutitional/treaty/federal statute—supremacy clause: federal law is supreme
a) To determine whether the U.S. Federal court will apply state law rather than federal law, we
must look at whether the conflict is (1) between state law and federal common law or (2)
between state law and a Federal Rule of Civil Procedure.
1. Conflict between federal common law and state law?
a) According to Erie (and under § 1652, Rules of Decisions Act) except in matters governed by
federal constitution or by acts of congress, the law to be applied in diversity or supplemental
jurisdiction cases is the law of the State. Whether the law of the State shall be declared by its
legislature/statute or by common law/declaration by state court is not a matter of federal
concern.
(1) How to determine whether a federal court should apply federal common law or state
law:
(a) Bound Up: According to Byrd, when there is a conflict between federal common law
and state common law, if the law in question is bound up with the rights and
20
obligations of the parties, and not merely a mode and form of enforcing them, then
state law will apply.
(i) Balancing Test: According to Byrd, if the law in question is not bound up with
the rights and obligations of the parties, the court will weigh the interest in
vertical uniformity, which would support applying state law, against any strong
countervailing federal interest, which would support applying federal law.

Vertical Uniformity: According to Byrd and Hanna, there are three
factors used to determine the interest in vertical uniformity (using the
outcome determinative test established in Guaranty Trust Co. v. York) :
(1) the probability of a different outcome, (2) the degree of any
difference in outcome, and (3) whether any difference in outcome
implicates the twin aims of Erie, (avoiding vertical forum shopping and
the inequitable administration of the laws.)

If applying fed law would not likely change the outcome, then the court can use
federal law. If applying federal law would likely change the outcome in a way
that implicates the twin aims of Erie, then the court likely should apply state
law.

According to the dicta in Hanna, the court should consider the
twin aims of Erie and weigh differences in outcome that could
potentially lead to forum shopping and inequitable
administration of law.
 Forum shopping = uniformity between decisions in state
court and federal court
 Inequitable administration of the law = fairness

Countervailing Federal Interest: In determining whether there is a strong
countervailing federal interest in applying federal law, the court will
consider whether the choice in law implicates a constitutional principle or
other important federal policy. If affirmative countervailing
considerations are strong, federal law should be applied

Examples of countervailing considerations:
 General proposition that federal courts are an independent
judicial system that has the autonomy to decide their internal
functioning the way that they want; for example, in Byrd, the
Supreme Court held that the federal court should not follow the
state rule that a particular factual issue should be decided by a
judge, because of the federal court’s countervailing interest in
having a broad availability of jury trials.
 It could also be related to a constitutional right (such as a right
to a jury trial) or amendment
2. Conflict between state law and FRCP? The issue is whether the court should follow state law
or the FRCP.
21
1. According to the Supreme Court in Hanna, when there is a conflict between state law
and the FRCP, two requirements must be met in order for a court to use a FRCP:
a. 1) The FRCP must fall within the limits of the Rules Enabling Act (28 U.S.C § 2072).
i. There are two requirements to satisfy the Rules Enabling Act
1. Under § 2072(a), the FRCP has the power to prescribe general rules of
practice and procedure
2. Under § 2072(b), the FRCP must not abridge, enlarge, or modify any
substantive right (substantive = rules that would modify out of court
behavior)
b. 2) The FRCP must be consistent with the U.S. Constitution
i. Under Article III of the U.S. Constitution, the U.S. government, specifically
Congress, has the power to establish the U.S. District Courts;
ii. And under Article I, Section 8 of the U.S. Constitution, Congress has the power
“to make all laws which shall be necessary and proper for carrying into
execution…powers vested by this Constitution in the government of the United
States, or in any department or officer thereof.” The promulgation of rules to
govern a basic litigation document—pleadings—is necessary and proper for
carrying into execution the U.S. government’s power to operate the U.S. District
Courts.
2. Hanna
3. Use Hanna, if there is a direct and irreconcilable conflict between state law
and FRCP, apply the FRCP, unless it is unconstitutional or goes beyond
prescribing general rules of practice and procedure, such as abridging, enlarging,
or modifying a substantive right. (There is a presumption that the FRCP are valid
because they flow from the REA § 2072. )
4. So if direct and irreconcilable conflict --> federal law
5. If unconstitutional or goes beyond prescribing general rules of practice and
procedure, such as abridging, enlarging, or modifying a substantive right -->
state law
ERIE ANALYSIS
Before starting this analysis:
The very first issue is whether there is a conflict between state and federal law. Here, the state
law is
On the other hand, the federal law says…. So we have a conflict between state and federal law.
Therefore, we must conduct an Erie analysis to determine whether the court should apply state
law or federal law.
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I: The issue is whether a U.S. District Court, sitting in diversity, is required to apply state law to
a given issue or may instead apply federal law.
R: This issue arises when the federal court’s subject matter jurisdiction is based on diversity
jurisdiction or supplemental jurisdiction. According to Erie, when a federal court is adjudicating
a state cause of action, except in matters governed by the U.S. constitution or U.S. legislation,
state law must be applied. This is necessary to prevent vertical forum shopping and the
inequitable administration of the law. (Twin aims of Erie) To determine when a U.S. federal
court will apply federal law rather than state law, we must first determine whether this issue
involves Federal Common Law or the Federal Rules of Civil Procedure (FRCP). Here, the
conflict is between…. So the next task is to determine whether federal common law (or FRCP)
or state law should be applied.
ADD IN SUBHEADING HERE (i.e. federal common law vs. state law)
I: The issue is whether state law or federal common law should be applied.
R: Under the Erie doctrine, a federal court sitting in diversity must apply state substantive law,
except in matters governed by the federal constitution or by acts of congress. According to Byrd,
if the state law in question is bound up with the rights and obligations of the parties, and not
merely a mode and form of enforcing them, then state law must be applied. If the state law is not
bound up, then the court must conduct the balancing test between the interest in vertical
uniformity versus any countervailing federal policies.
BOUND UP
First, the issue is whether the state law is “bound up” with the definition of the parties’ rights and
obligations. According to Byrd, when there is a conflict between federal common law and state
common law, if the state law in question is bound up with the rights and obligations of the
parties, and not merely a mode and form of enforcing them, then state law must be applied. A
state law is considered “bound up” with state-created rights when the rule defines the rights and
obligations of the parties to each other. If the state law isn’t bound up, (for instance, if the state
law only specifies the proper judicial process for resolving a dispute,) then we must continue the
analysis. Here,
Therefore, the state law is not bound up so we must continue our analysis.
questions to ask: 1) does the state law or rule define the relationship between the parties? 2) will the
federal courts’ decision about which rule to apply alter the rights of obligations of the parties toward
each other? 3) is that state law or rule simply a form or mode of enforcing the rule? (jury or judge?
Evidence rules? Standard of pleading?) If this answer to this sub-issue is yes, then the analysis stops and
state law applies
23
NOTE: When thinking about this in an exam: ignore “bound up” – whether the state law contributes to
or is part of the definition of the parties’ rights and obligations to each other. In contrast, if there isn’t a
state law that defines what you owe me or I owe you, but instead specifies the proper judicial process
for resolving a dispute, this isn’t defining a right itself – so doesn’t satisfy.
BALANCING TEST
According to Byrd, if the law in question is not bound up with the rights and obligations of the
parties, the court will weigh the interest in vertical uniformity, which would support applying
state law, against any strong countervailing federal interest, which would support applying
federal law.
Vertical uniformity-
The issue is whether the interest in uniformity allows the use of federal common law instead of
state. According to Byrd and Hanna, there are three factors used to determine the interest in
vertical uniformity: (1) the probability of a different outcome, (2) the degree of any difference in
outcome, and (3) whether any difference in outcome implicates the twin aims of Erie, (avoiding
forum shopping and the inequitable administration of the laws.)
C, I. The issue is whether applying federal law would affect the probability of a different
outcome.
C, R: Under Byrd and Hanna, the court must consider whether applying federal law would have
a strong probability of changing the outcome.
A, I: The issue is whether the difference in outcome would be substantial.
A, R: Under Byrd, the court must consider whether applying federal law would create a
substantial difference in outcome.
B, I: The issue is whether the difference would affect/implicate the two main aims of Erie.
B, R: According to Hanna, the first aim of Erie is to prevent vertical forum shopping. The second
aim of Erie is to avoid inequitable administration of the law.
If the outcomes would be the same – state law
If different – continue to step three
Therefore, the interest in vertical uniformity weighs in favor of applying…
24
Countervailing considerationsThe second part of the balancing test examines countervailing federal law considerations. The
issue is whether there are countervailing considerations favoring the application of federal law.
According to the Supreme Court in Byrd, even if there is a possibility to have different
outcomes, the court still looks to affirmative countervailing considerations that favor the
application of federal law. In determining whether there is a strong countervailing federal interest
in applying federal law, the court will consider whether the choice in law implicates a
constitutional principle or other important federal policy. If countervailing federal interest
outweighs the interest in vertical uniformity, state law yields to federal common law. Here,
1. Examples of countervailing considerations:
a. General proposition that federal courts are an independent
judicial system that has the autonomy to decide their
internal functioning the way that they want; for example, in
Byrd, the Supreme Court held that the federal court should
not follow the state rule that a particular factual issue
should be decided by a judge, because of the federal court’s
countervailing interest in having a broad availability of jury
trials.
b. It could also be related to a constitutional right (such as a
right to a jury trial) or amendment
2.) Respecting the independence of the federal system and the compelling federal interests
included in that system.
a. The federal system's interest in maintaining the traditional allocation of functions
between judge and jury necessitate that the court follow the federal, rather than
the state rule.
b. The federal policy of having the jury answer questions of fact prevails over state
rules that would interrupt the judge-jury relationship in federal court.
c. This policy is supported, if not commanded, by the Seventh Amendment to the
Constitution
d. 7th amendment says that we have a strong interest in juries deciding issues. We
know it is a strong interest because it is in the constitution
Therefore, the countervailing federal interest weighs in less/more than the interest in uniform
outcomes.
Overall Erie conclusion-
Therefore, (talk about bound up and balancing test). Thus, we should apply the state law/federal
law
25
The case involves State Law v. the Federal Rules of Civil Procedure (Hanna)
I: Whether state law or federal rules of civil procedure should be applied.
R: Under Hanna, for the Federal Rules of Civil Procedure (FRCP) to apply instead of state law, two
requirements must be satisfied: (1) it must comply with the Rules Enable act; and (2) it must comply
with the Constitution.
1. Under Hanna, for the FRCP to apply the procedure must comply with the Rules Enabling Act
(REA, in §2071) which requires that the rule has to (1) deal with practice and procedure or
evidence, and (2) does not abridge, enlarge, or modify substantive rights.
Under Hanna, for the FRCP to apply the procedure must be constitutional
FLOWCHART for APPLICABLE LAW
26
27
III. Initiating and Responding to Litigation
1. Initial Pleadings
a) Pleadings: a pleading is the plaintiff’s compliant and the defendant’s response to the complaint;
Under Rule 7(a), the following is considered a pleading:
a. a. A complaint;
b. b. An answer to a complaint;
c. c. An answer to a counterclaim;
d. d. An answer to a crossclaim;
e. e. A third-party complaint;
f. f. An answer to a third-party complaint; and
g. g. A reply to an answer
2. Under Rule 10, every pleading must have a court’s name, title, file #, and rule 7(a) designation.
Also must use numbered paragraphs.
b) Complaint:

General Requirements. According to Rule 8(a), a complaint must include the
following: (1) short and plain statement of the grounds for the court’s jurisdiction,
(2) a short and plains statement of the claim showing that the pleader is entitled to
relief, and (3) a demand for the relief sought.
1. Under Rule 8(a)(1) the complaint must contain a short and plain statement
of the grounds for the court’s jurisdiction;
1. According to Walker and under Rule 11(b)(2), it is the plaintiff’s burden
to plead citizenship when invoking diversity jurisdiction
2. Under Rule 8(a)(2), the complaint must contain a short and plain statement
of the claim showing that the pleader is entitled to relief; and
1. To satisfy rule 8(a)(2), the allegations must be:
1. Legally sufficient: the allegations in the complaint,
if true, must constitute a legally recognized cause
of action.
2. Factually sufficient: the allegations should put the
defendant on notice of what the claim is and
plausibly support the conclusion that the
defendant engaged in the alleged conduct.
1. Notice Standard of Pleading:
a. According to Bell v. Novick Transfer Co., the plaintiff does not
need to include specific details in the complaint because these
facts can be determined during discovery.
b. In Conley v. Gibson, the Supreme Court established the notice
standard of pleading, which holds that a complaint should not
28
be dismissed for failure to state claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.
i. This is a lax standard, only giving the defendant notice of
what they are being sued for.
ii. Discovery will sort out grounded and strong claims from
ungrounded and weak claims, but the process can be
expensive.
2. Plausibility Standard of Pleading:
a. According to the Supreme Court in Twombly, which re-interpreted
Conley and the notice standard of pleading, fair notice is still
required as under Conley, but something beyond the mere
possibility of the claim must be alleged to satisfy rule 8(a)(2). The
complaint needs to include enough facts to state a claim for relief
that is plausible on its face, so that that claim cross the line from
conceivable to plausible. One way of determining plausibility is
whether there is a more likely explanation for the events at issue.
i. Background: Twombly was an antitrust case where the
Supreme Court held that stating an antitrust claim required
a complaint with enough factual matter to suggest an
agreement was made. In antitrust, price fixing/conspiracy or
parallel conduct plus some other circumstances lead to
liability, but parallel conduct by itself does not lead to
liability.
ii. ATJ implication: This decision makes it more difficult for
plaintiffs to bring antitrust claims because it is hard to
gather evidence without discovery, but this also prevents
unnecessary and expensive discovery for the defendants.
b. In Iqbal, the Supreme Court established a two-step approach to
apply Twombly to all cases:
i. First, factual allegations must be distinguished from legal
conclusions/conclusory statements, and any legal
conclusion must be stricken because these are not entitled
to the assumption of truth.
1. How does a court make this distinction? Threadbare
recitals of the elements of the law are not enough
and therefore conclusory; this is obvious when the
complaint just inserts the defendant’s name into
the text of the law
ii. Second, considering only the factual allegations, taken as
true, must state a plausible claim for relief. Only a complaint
that states a plausible claim for relief survives a motion to
dismiss. To determine whether they state a plausible claim
for relief, a court must draw on judicial experience and
common sense to determine that:
1. The factual allegations allow the court to draw a
reasonable inference that the defendant is liable
29
for the alleged misconduct (the elements of the
claim are satisfied), and
2. There does not exist a more likely explanation for
the events at issue.
c. ATJ Consequences:
i. A consequence of the “Twiqbal” approach is increased
judicial discretion to “decide” cases before they get to
discovery or the jury (compared to PJ, where the Supreme
Court established a trend towards a fixed rule or general
jurisdiction).
ii. Additionally, the plaintiff must allege facts, which
necessarily frontloads investigation and requires it to be
more robust.
iii. The plausibility standard is better for the defendant,
because the defendant may now argue that the plaintiff’s
complaint includes conclusory allegations or there is a
better explanation for what happened such that the court
should dismiss the complaint.
iv. The dissent in Iqbal stated that the court should consider
the whole complaint to determine plausibility and not make
distinctions between factual allegations and legal
conclusions. Also, the court could allow minimal discovery
for the lower officials that would lead to the higher-up
officials, thus avoiding the drastic outcome of a dismissal of
the complaint.
3. Special Standard for fraud or mistake/conditions of mind pleading under
Rule 9(b):
a. Under Rule 9(b), in alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person’s mind
may be alleged generally.
i. According to Stradford, complaints involving fraud must:
1. (1) identify the elements of the claim and
2. (2) state facts that, if true, would satisfy the
elements.
ii. Particularity: According to Stradford, a claim of fraud does
not satisfy the requirements of Rule 9(b) if it does not
specify the time, place and nature of the
misrepresentations forming the basis of the claim.
3. Under Rule 8(a)(3) there must be a demand for the relief sought
c) Burdens of Pleading: According to Jones, the plaintiff has the burden of pleading elements of
the claim and the defendant has the burden of pleading elements of defense.
ii. Burden of party pleading: Under Rule 8(a), the plaintiff has the burden of
pleading the grounds for jurisdiction, the statement of the claim, and the
prayer for relief.
30
1. If plaintiff fails to state a claim, defendant can file a Rule 12(b)(6)
motion to dismiss
iii. Burden of party responding:
1. Under Rule 8(b)(1), an answer needs to (1) state in short and plain
terms its defenses to each claim asserted against it and (2) admit or
deny the allegations asserted in the complaint.
2. Defenses:
a. Under Rule 8(c), the defendant has the burden of pleading any
affirmative defenses.
b. According to Jones v. Bock, the defendant has the burden to
establish its affirmative defenses, and the defense of failure to
exhaust is an affirmative defense.
c. Under Rule 8(c)(1) there is a non-exhaustive list of affirmative
defenses: accord and satisfaction, arbitration and award,
assumption of risk, contributory negligence, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statue of
frauds, statute of limitations, waiver.
d) Responding to the complaint:
iv. Outside the court
1. Default judgement: Default judgment involves the defendant choosing
not to respond to plaintiff’s lawsuit, therefore the court enters a default
judgment for the plaintiff.
a. A defendant may choose to default because it is costly to
defend the lawsuit, he may have nothing to pay anyway, or he
cannot afford an attorney.
2. Collateral attack involves the defendant choosing not to respond to
plaintiff’s lawsuit, having a default judgment against him, and then
arguing a lack of personal jurisdiction to an enforcing court. However,
this method is risky because if the enforcing court decides that there is
personal jurisdiction, the default judgment will be enforced, and the
defendant will not have a chance to argue the merits of the case.
3. Settlement involves a resolution between parties outside of the court,
which occurs before or after trial has begun.
v. Inside the Court:
1. Answer: The defendant can either (1) admit the allegations, (2) deny the
allegations, or (3) file a counterclaim, or (4) assert an affirmative
defense.
a. According to Zielinski, Rule 8(b) demands that a party shall state
in short and plain terms his defenses to each claim asserted and
shall admit or deny the averments upon which the adverse
party relies; denials shall fairly meet the substance of the
averments denied. When a pleader intends in good faith to
deny only part of a qualification of an averment, he shall specify
so much of it as it true and material and shall deny only the
remainder.
i. General denial: for a general denial, under Rule 8(b)(3),
a party that intends in good faith to deny all the
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allegations of a pleading, including the jurisdictional
grounds, may do so by a general denial, but must
otherwise specifically deny general allegations
ii. Partial denial: if a party wants to admit only part of the
allegations and deny the rest, under Rule 8(b)(4), they
must admit the truth of the allegations that they are not
denying and deny the rest.
iii. Lack of knowledge: under Rule 8(b)(5), a party that
lacks knowledge or information sufficient to form a
belief about the truth of an allegation must so state,
and the statement has the effect of a denial.
iv. Failing to Deny: under Rule 8(b)(6), failing to deny an
allegation in an answer will cause the allegation to be
admitted and they are uncontestable
v. Under Rule 8(c), the defendant may also assert an
affirmative defense:
1. Under Rule 8(c)(1) there is a non-exhaustive list
of affirmative defenses: accord and satisfaction,
arbitration and award, assumption of risk,
contributory negligence, duress, estoppel,
failure of consideration, fraud, illegality, injury
by fellow servant, laches, license, payment,
release, res judicata, statue of frauds, statute of
limitations, waiver.
b. According to Rule 12(A)(1)(a), a defendant must serve an
answer within 21 days after being served with the summons
and complaint, or if the defendant timely waived service under
Rule 4(d), within 60 days after the request for a waiver was
sent.
2. Pre-Answer Motions:
a. Under Rule 12(b), a party may raise one of the following
defenses to a claim for relief in a pre-answer motion:
i. 12(b)(1) Lack of SMJ
ii. 12(b)(2) lack of PJ
iii. 12(b)(3) improper venue
iv. 12(b)(4) insufficient process
v. 12(b)(5) insufficient service of process
vi. 12(b)(6) failure to state a claim upon which relief can be
granted; and
1. Even if everything the plaintiff alleges is true,
the complaint is legally insufficient, and the
plaintiff is not entitled to relief.
2. To survive a 12(b)(6) motion to dismiss, all
allegations are assumed true, and the complaint
must (1) establish all necessary elements of a
claim, (2) provide fair notice as per rule 8(a),
and (3), state a plausible claim.
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
vii. 12(b)(7) failure to join a party under Rule 19
b. There are limitations on when a defendant may bring up a Rule
12(b) defense:
i. According to Rule 12(g)(2), except as provided in Rule
12(h)(2) and (3)a party that makes a pre-answer motion
cannot make another motion raising a defense that was
available but omitted in the first motion.
ii. According to Rule 12(h)(1), 12(b)(2)-(5) are waived if
they were not included in a pre-answer motion or in the
answer. If any defense in 12(b) was raised in a preanswer motion and the defenses in 12(b)(2)-(5) were
omitted, these defenses are waived. If no pre-answer
motion, these defenses can be brought in the
answer/responsive pleading, but not after.
iii. According to Rule 12(h)(2), failure to state a claim, join a
person, or state a legal defense may be raised in a Rule
7(a) pleading, by a Rule 12(c) motion, or at trial.
iv. SMJ IS NON WAIVABLE: According to Rule 12(h)(3), if a
court determines at any time that it lacks SMJ, the court
must dismiss the action.
1. SMJ is a non-waivable defense and can be
brought the party at any time.
2.
3. the defendant could raise this defense because
subject-matter jurisdiction is not a defense that
could be waived because of its implications on
federalism. Because the federal government
can only exercise authority based on
enumerated powers in the constitution, federal
courts can only exercise jurisdiction to hear
cases in areas where they have original
jurisdiction. Otherwise, for federal courts to
hear cases where they do not have original
jurisdiction, it would be an unconstitutional
exercise of the federal courts’ power, as these
matters should be left to the state courts
v. . Under rule 12(h)(1) a party waives any defense listed
in rule 12(b)(2)-(5) by omitting from a circumstance
described in 12(g)(2) which states that a party cannot
make these further motions under this rule if they fail
to make them with the court first
Under Rule 12(e), a party may move for a more definite statement
of a pleading to which a responsive pleading is allowed but which is
so vague or ambiguous that the party cannot reasonably prepare a
response. However, this motion is rarely successfully invoked, so
chances you are you would not want to file this motion, or at the
very least it would not be successful.
33
e) Amendments to pleadings
 When a pleading may be amended:
 According to Rule 15(a)(1), a pleading may be amended within (a)
21 days of serving it, or (b) if the pleading requires a responsive
pleading, 21 days after service of responsive pleading or 21 days
after service of motion under Rule 12(b)(e)(f), whichever is earlier.
 OR according to Rule 15(a)(2), a party can amend only if it has the
opposing party’s written consent, and the court’s leave. The court
should freely give leave when so justice so requires.
 Relation back:
 Rule 15(c) sets out when an amendment relates back to the
original pleading. According to Rule 15(c)(1)(B), an amendment
relates back to the original pleading if it asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set forth
in the original pleading.
 After amended pleading
 Time to respond:
o According to Rule 15(a)(3), any required response to an
amended pleading must be made within the time remining
to respond to the original pleading or within 14 days of
service of the amended pleading, whichever is later.
 At trial
o According to Rule 15(b)(1), if, at trial a party objects to
evidence that wasn’t within the issues presented in
pleadings
 Court may allow pleading to be amended.
 Court may grant a continuance to enable objecting
party to meet evidence.
3. Ethics of Pleading: Rule 11
a. Representations to the court: Under Rule 11(b), by presenting to the court of pleading
written motion or other paper, an attorney or unrepresented party certifies that to the
best of the persons knowledge, information, and belief formed after an inquiry
reasonable under the circumstances:
i. (1) it is not being presented for any improper purpose such as to harass
cause unnecessary delay or needlessly increase the cost of litigation
ii. (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a non-frivolous argument for extending, modifying, or
reversing existing law or for establishing new law
iii. (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
34
iv. (4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, or reasonably based on belief or lack of
information.
b. Sanctions for violating Rule 11(b):
1. Under Rule 11(c)(1), if, after notice and a reasonable opportunity to
respond, the court determines that Rule 11(b) has been violated, the
court may (discretionary!) impose an appropriate sanction on any
attorney, law firm, or party that violated the rule or is responsible for
the violation. Absent exceptional circumstances, a law firm must be held
jointly responsible for a violation committed by its partner, associate, or
employee.
2. Under Rule 11(c)(2), a motion for sanctions must be made separately
from any other motion and must describe the specific conduct that
allegedly violates Rule 11(b). The motion must be served under Rule 5,
but it must not be filed or be presented to the court if the challenged
paper, claim, defense, contention, or denial is withdrawn or
appropriately corrected within 21 days after service or within another
time the court sets. If warranted, the court may award to the prevailing
party the reasonable expenses, including attorney's fees, incurred for
the motion.
3. Under Rule 11(c)(3) on its own, the court may order an attorney, law
firm, or party to show cause why conduct specifically described in the
order has not violated Rule 11(b).
4. Under Rule 11(c)(4), a sanction imposed under this rule must be limited
to what suffices to deter repetition of the conduct or comparable
conduct by others similarly situated. The sanction may include
nonmonetary directives; an order to pay a penalty into court; or, if
imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of part or all of the reasonable
attorney's fees and other expenses directly resulting from the violation.
5. Under Rule 11(c)(5), the court may not impose a monetary sanction
against an unrepresented party for violating Rule 11(b)(2)
6. Inapplicability to discovery: Under Rule 11(d), this rule does not apply to
disclosures or discovery requests, responses, objections, and motions
under Rules 26 through 37.
c. According to Walker, failure to appropriately research the law and provide justification
for jurisdiction can lead to sanctions under Rule 11
d. According to Christian, the court should not consider extra conduct outside of what is
allowed in Rule 11.
IV. LEARNING THE FACTS/DISCOVERY
A. Stages of Discovery and Discovery Tools: There are two requirements for a party to seek
discovery from another party: I) the discovery tool used must be founded in the Federal Rules, and II) the
discovery request is in the scope of discovery as determined by the Federal Rules.
I. The first requirement is that the discovery tool is founded in the Federal Rules:
35
1. Required Disclosures: Under Rule 26, at the beginning of the litigation process, parties will have
to make required disclosures based on their knowledge of the case at the time. There are three
main required disclosures:
a. What information is required to be disclosed?
i. Initial Disclosures: Under Rule 26(a)(1)(A) a party must, without awaiting a
discovery request, provide to the other party the following information:
a. (i) 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 – that the disclosing party may use to
support its claims or defenses, unless the use would be solely for
impeachment;
b. (ii) 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, custody, or control and
may use to support its claims or defenses, unless the use would be
solely for impeachment;
c. (iii) a computation of each category of damages claimed by the
disclosing party – who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and
extent of injuries suffered; and
d. (iv) any insurance agreement under which an insurance business may
be liable to satisfy all or part of a possible judgment in the action or to
indemnify or reimburse for payments made to satisfy the judgment.
ii. Disclosure of Expert Testimony: Under Rule 26(a)(2)(A), in addition to the
disclosures required by rule 26(a)(1), the party must disclose to the other parties
the identity of any witness it may use at trial to present evidence under the
Federal Rules of Evidence
iii. Pre-trial Disclosures: Under Rule 26(a)(3)(A), A party must provide to the other
parties and promptly filed the following information about the evidence that it
may present at trial other than solely for impeachment:
a. (i) the name and the address and telephone number of each witness
separately identifying those the party expects to present and those it may
call if the need arises
b. (ii) the designation of those witnesses whose testimony the party expects
to present by deposition and the transcript of the pertinent parts of the
deposition
c. (iii) an identification of each document or other exhibit, including
summaries of other evidence, separately identifying those items the party
expects to offer and those that may offer if the need arises
b. When do initial disclosure take place?
i. Under Rule 26(a)(1)(C) A party must make the initial disclosures at or within 14
days after the parties’ Rule 26(f) conference unless a different time is set by
stipulation or court order, or unless a party objects during the conference that
initial disclosures are not appropriate in this action and states the objection in the
proposed discovery plan. In ruling on the objection, the court must determine
what disclosures, if any, are to be made and must set the time for disclosure.
ii. Under Rule 26(a)(1)(D) a party served or joined later must make the initial
disclosures within 30 days after being served or joined unless a different time is
set by stipulation or court order.
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c. How can initial disclosures be supplemented?
i. Under Rule 26(e)(1)(A), a party who has made a disclosure under Rule 26(a) or
who has responded to an in interrogatory, request for production, or request for
admission must supplement or correct its disclosure or response under one of the
following circumstances:
a. (A) in a timely manner if:
i. (1) the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and
ii. (2) the additional or corrective information has not
otherwise been made known to the other parties during
the discovery process or in writing; or
b. (B) as ordered by the court
d. What happens if certain initial disclosures are not made by one of the parties?
i. Under Rule 37(c)(1), if a party failed to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless. In addition to or instead of this
sanction, the court may utilize other options, such as:
i. (A) may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure;
ii. (B) may inform the jury of the party’s failure; and
iii. (C) may impose other appropriate sanctions, including
any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)
1. Facts are as prevailing party claims
2. Prohibiting disobedient party from
supporting/opposing claims/defenses
3. Striking pleadings in whole or in part
4. Staying further proceedings
5. Dismissing action/proceeding in whole or in part
6. Rendering default judgment against disobedient
party
7. Treating as contempt of court
e. Additional Conditions
i. Under Rule 26(a)(1)(E), a party must make its initial disclosures based on the
information then reasonably available to it. A party is not excused from making
its disclosures because it has not fully investigated the case or because it
challenges the sufficiency of another party’s disclosures or because another party
has not made its disclosures.
ii. Under Rule 26(a)(1)(B), certain types of proceedings (as set forth in the Rule) are
exempt from initial disclosure.
2. General Discovery Stage/Tools: The Federal Rules of Civil Procedure grant the following tools
to allow a party to obtain discovery: oral depositions, interrogatories, requests for production of
documents, physical or mental examinations, and requests for admissions.
a. Oral depositions:
i. Under Rule 30(a)(1): a party may, by oral questions, depose any person,
including a party or non-party, without leave of court except as provided in Rule
37
30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule
45.
a. Depose any person = includes parties & non-parties
ii. Under Rule 30(a)(2), a party must obtain leave of court, and the court must grant
leave to the extent consistent with Rule 26(b)(1) and (2) as long as:
a. (A) the parties have not stipulated to the deposition and:
i. (i) the deposition would result in more than 10
depositions being take under this rule or Rule 31 by the
plaintiffs, or by the defendants, or by the third-party
defendants;
1. Default limit on # depos
ii. (ii) the deponent has already been deposed in the case; or
iii. The party seeks to take the deposition before the time
specified in Rule 26(d), unless the party certifies in the
notice, with supporting facts, that the deponent is
expected to leave the United States and be unavailable
for examination in this country after that time; or
b. (B) if the deponent is confined in prison.
iii. Under Rule 30(d)(1), unless otherwise stipulated or ordered by the court a
deposition is limited to one day of seven hours, and the court must allow
additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine
the deponent or if the deponent, another person, or any other circumstance
impedes or delays the examination
iv. Why is this useful/not useful? a person is being asked questions under oath;
inadmissible evidence can’t be used in court but can still be helpful to further
investigation
b. Interrogatories:
i. l. Under Rule 33 interrogatories are open ended written questions that require a
narrative answer and can only be used on parties to the lawsuit
ii. Under Rule 33(a), unless otherwise stipulated or ordered by the court, a party
may serve on any other party (NOT NON PARTIES-THIS INCLUDES THE
PARTY’s COUNSEL) no more than 25 written interrogatories, including all
discrete subparts. Leave to serve additional interrogatories may be granted to the
extent consistent with Rule 26(b)(1) and (2)
iii. Scope. An interrogatory may relate to any matter that may be inquired into under
Rule 26(b). An interrogatory is not objectionable merely because it asks for an
opinion or contention that relates to fact or the application of law to fact, but the
court may order that the interrogatory need not be answered until designated
discovery is complete, or until a pretrial conference or some other time.
iv. Why is this useful/not useful? downsides to interrogatories = you can’t ask
follow up questions and pin down on the person’s potential evasiveness by
asking pointed questions in response to answers; benefits = way cheaper
c. Requests for Production:
i. Under Rule 34(a), a party may serve on any other party any number of the
following requests within the scope of Rule 26(b): (no limits on number of
requests)
1. Under Rule 34(a)(1), requests to produce and permit the requesting party or
its representative to inspect, copy, test, or sample the following items in the
responding party’s possession, custody, or control:
a. (A) any designated documents or electronically stored
information…stored in any medium from which information can be
38
ii.
iii.
iv.
v.
obtained either directly or, if necessary, after translation by the
responding party into a reasonably usable form; or
b. (B) any designated tangible things; or
2. Under Rule 34(a)(2), requests to permit entry onto designated land or other
property possessed or controlled by the responding party
Under Rule 34(b), which governs procedure, the request:
1. (A) must describe with reasonable particularity each item or category of
items to be inspected;
2. (B) must specify a reasonable time, place, and manner for the inspection and
for performing the related acts; and
3. (C) may specify the form or forms in which electronically stored information
is to be produced. (optional)
Responses and objections: Under Rule 34(b)(2)
1. Under Rule 34(b)(2) (A) Time to Respond. A party must respond to a request
for production within 30 days after being served (unless the court provides
otherwise or the request was delivered under 26(d)(2) (in which case the
party must respond within 30 days of the parties’ initial conference)).
2. Under Rule 34(b)(2) (B) Responding. With respect to each item or category,
the responding party must either (1) state that it will permit inspection (and
related activities) or (2) state with specificity the grounds for objecting
(including the reason). The responding party may state that it will produce
copies instead of permitting inspection.
3. Under Rule 34(b)(2) (C) Objections. An objection must state whether any
responsive materials are being withheld on the basis of that objection. An
objection to part of a request must specify the part and permit inspection of
the rest.
4. Under Rule 34(b)(2) (D) Responding to ESI Request. A party may object to
the requested form of ESI. If the responding party objects to the form or if no
form was specified in the request, the responding party must state the form(s)
it intends to use.
5. Under Rule 34(b)(2)(E), which governs responses to requests for production:
a. When the request involves the production of documents or electronically
stored information, unless otherwise stipulated or ordered by the court,
these procedures apply to producing documents or ESI:
i. (i) A party must produce documents as they are kept in
the usual course of business or must organize and label
them to correspond to the categories in the request;
ii. (ii) If a request does not specify a form for producing
ESI, a party must produce it in a form or forms in which
it is ordinarily maintained or in a reasonably usable form
or forms; and
iii. (iii) A party need not produce the same ESI in more than
one form.
NONPARTIES: Under Rule 34(c), as provided in Rule 45, a nonparty may be
compelled via subpoena to produce documents and tangible objects or to permit
an inspection.
Risks of ESI and new technologies:
1. acceleration of the trend away from comprehensiveness in discovery: ideal of
comprehensiveness is no longer feasible due to the sheer number of files, the
ESI technology might not actually be helpful
39
2. erosion of lawyer’s professionalism: lawyers eventually may not be able to
use these technologies and tech experts will have to fill in litigation costs
d. Physical and Mental Examinations:
i. Under Rule 35(a)(1), the court where the action is pending may order a party
(not a non-party) whose mental or physical condition – including blood group –
is in controversy to submit to a physical or mental examination by a suitably
licensed or certified examiner. The court has the same authority to order a party
to produce for examination a person who is in its custody or under its legal
control (meaning if a party was suing on behalf of a child).
1. No default limits on # of exams but there are protections in place
2. This is an invasive discovery request, so judges will err on side of caution in
close call cases
ii. Under Rule 35(a)(2), the order:
1. May be made only on motion for good cause and on notice to all parties and
the person to be examined; and
2. Must specify the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it.
iii. Can only be used against the person who brings the condition into controversy
(person suing for emotional damages)
e. Requests for Admission:
i. Under Rule 36, a party may serve another party with request to admit anything
that relates to the facts, the application of law to fact, or opinions about either
and the genuineness of any described documents, and there are no default
limits
ii. Under Rule 36(a)(1), a party may serve on any other party (not nonparties) any
number of written request to admit, for purposes of the pending action only, the
truth of any matters within the scope of Rule 26(b)(1) relating to:
1. (A) facts, the application of law to fact, or opinions about either; and
2. (B) the genuineness of any described documents.
iii. Under Rule 36(a)(3), a matter is admitted unless, within 30 days after being
served, the party to whom the request is directed serves on the requesting party a
written answer or objection addressed to the matter and signed by the party or its
attorney
iv. Under Rule 36(a)(4), if a matter is not admitted, the answer must specifically
deny it or stay in detail why the answering party cannot truthfully admit or deny
it:
1. A denial must fairly respond to the substance of the matter, and when good
faith requires at a party qualifying answer or deny only part of a matter, the
answer must specify the part admitted an qualify or deny the rest;
2. The answering party may assert lack of knowledge or information as a reason
for failing to admit or deny only if the party states that it has made reasonable
inquiry and that the information it knows or can readily obtain is insufficient
to enable it to admit or deny.
v. If RFA is ignored, it will be admitted; their purpose is to eliminate essentially
undisputed issues/take matters out of controversy
f. Supplementing:
i. A party must request any of its disclosures or discovery responses (A) in a timely
manner if the party learns that in some material respect the disclosure or response
is incomplete or incorrect, and if the additional corrective information has not
40
otherwise been made known to the other parties during the discovery process or
in writing; or (B) as ordered by the court.
1. If a party fails to supplement as required, it may be subject to sanctions under
Rule 37(c) (see under “controlling discovery abuses”).
II. The second requirement for a discovery tool to be used is that the request is within the scope of
discovery as set out in the Federal Rules: The issue is whether [the information] is discoverable
3. Scope of Discovery: Under Rule 26(b)(1) a party may obtain discovery as long as four
requirements are satisfied: the matter is not privileged, relevant to the claim, proportional to the
needs of the case, and not otherwise limited by the court via court order (discovery does not need
to be admissible in order to be discoverable)
a. Privilege:
i. Under 26(b)(1), Information is privileged if it falls within certain categories of
legally protected communications, such as attorney client privilege or the 5th
amendment right against self-incrimination (these categories vary by state law)
ii. Privilege must be asserted by a party to have effect, and it can be waived if the
person claiming privilege treats the information as non-privileged by sharing
with third parties or the information pertains to something the party has put at
issue in the litigation.
iii. Under Rule 26(b)(5)(A), when a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to
protection as trial preparation material the party must:
1. expressly make the claim; and
2. describe the nature of the documents, communications, or intangible things
not produced or disclosed, and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the claim
3. Potential strategy avenues:
a. you can object to discovery request and assert privilege, which shifts the
burden on the other party to file a motion to compel, and if the motion is
denied the court may issue a protective order and the other party has to
pay your fees
b. on the other hand, you can take the initiative and file your own motion
for protective order which allows you to have the opportunity to frame
the argument first before the judge
b. Relevance:
i. According to Favale, the information is relevant if it would tend to prove or
disprove an element of a claim or defense.
ii. In Favale, the court denied the plaintiff’s request to obtain evidence regarding a
principal’s anger management and psychological treatment, because the evidence
was not linked to plaintiff’s claim regarding sexual harassment.
c. Proportionality:
i. According to Cerrato, information is not discoverable if it is not proportional to
the needs of the case:
1. Under Rule 26(b)(1), the court considers the following factors when
assessing proportionality:
i. The importance of the issues at stake in the action to the
parties
ii. The amount in controversy
iii. The parties’ relative access to relevant information
iv. The parties’ resources (is it a corporation? Individual?)
41
v. The importance of discovery in resolving the issues of
the case (whether the discovery would shed light on
certain elements enough to make it proportional)
vi. Whether the burden or expense of the discovery
outweighs its likely benefit
2. In Cerrato, the court held that the plaintiff’s discovery requests to compel all
accident reports and records relating to any injury caused by the allegedly
defective product and all consumer complaints relating to the product were
overbroad and not proportional to the needs of the case  the decision relied
on the fact that the requests contained no time limitation or limitations of
subject matter, the alleged defect, or the circumstances of the incident
3. However, in Wagoner, the court held that the plaintiff’s discovery request
was reasonable (despite defendant’s argument that it was overbroad and not
reasonably accessible due to undue burden and cost) and it is the defendant’s
fault because of the fact that their information retention computer system did
not store emails in an easily accessible place
d. Not otherwise limited by court order: There are _____ ways a court might limit discovery
i. Under Rule 26(b)(2)(A), by order, the court may alter the limits in these rules on
the number of depositions and interrogatories or on the length of depositions
under Rule 30; By order or local rule, the court may also limit the number of
requests under Rule 36.
ii. Under Rule 26(b)(2)(B), a party need not provide discovery of electronically
stored information from sources that the party identifies as not reasonably
accessible because of undue burden or cost
iii. Under Rule 26(b)(2)(C), on motion or on its own, the court must limit the
frequency or extent of discovery otherwise allowed by these rules or by local rule
if it determines that:
1. the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome,
or less expensive;
2. the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
3. the proposed discovery is outside the scope permitted by Rule 26(b)(1)
iv. According to Rengifo a court may grant a protective order without regard to
proportionality, privilege or relevance
v. Under Rule 26(c), a judge may limit discovery by issuing a protective order
based on a party’s motion. According to this rule:
1. A party or any person from whom discovery is sought may move for a
protective order in the court where action is pending and the court may, for
good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense as long as:
a. the motion includes a certification the movement has in good faith
confirmed or attempted to confer with other affected parties in an effort
to resolve the dispute without court action
2. In Rengifo, the court applied Rule 26(c)(1) and held that a protective order
becomes necessary if there is a high chance (supported by prior history) that
the undocumented litigant will drop his suit rather than produce documents.
B. Ensuring Discovery Compliance: Courts may sanction for both (1) improper discovery requests
and (2) failure to comply with discovery request
e. How can discovery abuse be prevented by the parties’ initiative?
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i. How can one respond to an excessive discovery request?
1. Rule 26(b)(2)(c) on a motion or on its own, the court must limit the
frequency or extent of discovery otherwise allowed by these rules or by local
rule (mentioned above)
2. Rule 26(c)(1) establishes that a judge may limit discovery by issuing a
protective order based on a party’s motion (mentioned above)
a. Similar in purpose to Rule 11 for ethics in pleadings
3. Rule 26(b)(5) establishes the groundwork for claiming privilege.
4. As supported by Rule 26(g), a party can respond by objecting to the specific
request and including a brief statement on the grounds of rejecting a certain
request; a party may file a motion (or a court may act on its own) to impose a
sanction objecting to the improper request. By signing a discovery request,
lawyers certify that the request is a number of things, including not unduly
burdensome or expensive, so sanctions are available to enforce this and
discourage unreasonable requests.
ii. How can a party obtain discovery when another party has refused to respond or
provided an inadequate response to your discovery request?
1. Rule 26(g) motion. (See below under discovery abuses)
2. Motion to compel: Before filing motion to compel, must confer or attempt
to confer in good faith with defendant in an effort to obtain the information
without court action. Under Rule 37(a)(1), the motion must include a
certification that the movement has in good faith confirmed or attempted to
confer with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action.
a. There are three specific motions a party can make:
i. Under Rule 37(a)(3)(A), if a party fails to make a
disclosure required by Rule 26(a), any other party may
move to compel disclosure and for appropriate sanctions
ii. Under Rule 37(a)(3)(B), a party may move for an order
compelling an answer, designation, production, or
inspection
iii. Under Rule 37(a)(3)(C), when taking an oral deposition,
the party asking a question may complete or adjourn the
examination before moving for an order
b. Deterrence elements in a motion to compel: Under Rule 37(a)(5), if you
file a motion to compel and you lose, court will order that you pay for the
defense expenses and if you win, other party has to pay for your
expenses to bring the motion to the court
3. What if other party does not comply with the motion to compel? If the party
does not comply with the motion to compel, can move for general sanctions
under 37(b) or specific sanctions under (c-f)
a. Sanctions: (further discussed below) Under Rule 37(b) a party can make
a motion for sanctions when the other party refuses to comply with
request
i. Rule 37(a)(4) treats any evasive or incomplete
disclosure, or answer or response as a categorical failure
to disclose answer or respond. So even if a discovery
response is merely incomplete or evasive, you can still
use the rule 37 mechanisms to try to get a motion to
compel, and the party could be sanctioned for not
complying with that discovery order.
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f.
How does the court deal with discovery abuses?
i. Under Rule 26(g)(3) the court on motion, or on its own, must impose sanctions
for failure to comply with Rule 26(g)(1), which may include an order to pay the
reasonable expenses including attorney fees, caused by the violation.
a. Under Rule 26(g)(1), every disclosure under rule 26(a)(1) or (a)(3), and
every discovery request, response, or objection, must be signed by at
least one attorney of record in the attorney's own name, or by the party
personally, if unrepresented, and must state the signers address, email
address, and telephone number
b. By signing, an attorney or party certifies that to the best of the persons
knowledge, information, and belief formed after a reasonable inquiry, the
discovery request, response, or objection is:
i. consistent with these rules and warranted by existing law
or by a nonfrivolous argument for extending, modifying,
or reversing existing law, or for establishing new law
ii. not interposed for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase
the cost of litigation; and
iii. neither unreasonable nor unduly burdensome or
expensive, considering the needs of the case, prior
discovery in the case, the amount in controversy, and the
importance of the issues at stake in the action
ii. Contempt of court: Under Rule 37(b)(1), if the court where the discovery is taken
orders of deponent to be sworn or to answer a question and the deponent fails to
obey, the failure may be treated his contempt of court
iii. Other sanctions
1. General sanctions: Under Rule 37(b)(2), if a party fails to obey an order or
provide or permit discovery, the court may issue further orders at their own
discretion, including:
a. Directing that the matters embraced in the order or other designated facts
be taken as established for purposes of the action, as the prevailing party
claims.
b. Prohibiting the disobedient party from supporting or opposing designated
claims or defenses, of from introducing designated matters in evidence
c. Striking pleads in whole or in part
d. Staying further proceedings until the order is obeyed.
e. Dismissing the action in whole or in part
f. Rendering a default judgement against the disobedient party
g. Treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination
h. As demonstrated in Security National Bank of Sioux City, the court can
impose any sanction at their discretion, limited by Rule 11, which says
the sanctions cannot go beyond what is necessary for deterrence.
2. Specific Sanctions:
a. Under Rule 37(c), if a party fails to provide information or identify a
witness as required by Rule 26(a) or (e) the party is not allowed to use
that information or witness to supply evidence an emotion, at a hearing,
or at a trial, and less the failure was substantially justified or is harmless
(this rule is discussed in full below)
b. Under 37(d), the court may on motion order sanction if a party or a
party’s agent fails to appear for deposition or fails to serve its answer to
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an interrogatory or inspection. Sanctions include any of the orders listed
in rule 37(b)(2)(A)(i)-(vi). Court may also instead of or in addition to
these sanctions, require the failing party to pay reasonable expenses.
c. Under 37(e)(ESI discussed below)
d. Under 37(f) if a party fails to participate in good faith in developing and
submitting a proposed discovery plan as required by Rule 26(f), the court
may, after giving an opportunity to be heard, require that party to pay
any other party the reasonable expenses, caused by the failure.
g. How does the court deal with spoliation of evidence?
i. Under Rule 37(e), if electronically stored information that should have been
preserved in the anticipation or conduct of litigation is lost because a party failed
to take reasonable steps to preserve it, and it cannot be restored or replaced
through additional discovery, the court:
1. Upon finding prejudice to another party from loss of the information, may
order measures no greater than necessary to cure the prejudice; or
2. Only upon finding that the party acted with the intent to deprive another
party of the information’s use in the litigation may:
a. Presume that the lost information was unfavorable to the party
b. Instruct the jury that it may or must presume the information was
unfavorable to the party
c. Dismiss the action or enter a default judgement
ii. According to Zubulake, there is a duty to preserve, not alter, and not destroy
evidence, which is triggered as soon as it is reasonably foreseeable that litigation
will occur (this can be before the case is even filed). Spoliation refers to the
breach of this duty.
1. According to Zubulake established a lawyer’s basic responsibilities to
prevent spoliation. A lawyer must:
a. Put in place litigation hold (an instruction to retain any information
which could be relevant and to provide any relevant information to the
lawyer)
b. Communicate with the organization’s key players to inform them of the
hold
c. Take affirmative steps to monitor compliance so that all sources of
discoverable information are identified and searched, including
periodically reminding the people identified in a party’s initial disclosure
and any subsequent supplementation thereto that the preservation duty is
still in place
d. Maintain copies of relevant information and instruct all employees to
produce copies of their relevant active files, including backup data.
2. Sanctions for Spoliation. Can spoilation support an adverse inference
instruction?
a. According to Mueller, spoliation sanction is proper when:
i. a party has a duty to preserve relevant evidence because
it knew, or should have known, that litigation was
imminent
ii. the adverse party was prejudiced by the destruction of
the evidence
b. According to Mueller, a court should consider the following in deciding
whether to sanction a party for spoliation of evidence:
i. Degree of culpability of the party who lost or destroyed
evidence – was there bad faith? (this is very difficult to
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prove absent an admission or testimony showing bad
faith)
ii. The degree of prejudice to the other party?
h. What happens if certain initial disclosures are not made by one of the parties?
i. Under Rule 37(c)(1), if a party failed to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless. In addition to or instead of this
sanction, the court may utilize other options, such as:
i. (A) may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure;
ii. (B) may inform the jury of the party’s failure; and
iii. (C) may impose other appropriate sanctions, including
any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)
1. Facts are as prevailing party claims
2. Prohibiting disobedient party from
supporting/opposing claims/defenses
3. Striking pleadings in whole or in part
4. Staying further proceedings
5. Dismissing action/proceeding in whole or in part
6. Rendering default judgment against disobedient
party
7. Treating as contempt of court
*Discovery as a way to facilitate settlement:
 Settlement is unlikely when P and D have different expected value calculations, but
discovery allows parties to update their estimates because they know have access to the
same information
V: ENDING LITIGATION WITHOUT TRIAL
There are six main ways that litigation can end without trial: default judgement, voluntary
dismissal, involuntary dismissal, Rule 12(b) motions to dismiss, settlement, and summary
judgement.
1) Default Judgment: occurs when the defendant doesn’t respond to a claim, appear in court
to challenge a claim, or engage in litigation
a. Under Rule 55(a), when a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default
i. This rule is a powerful incentive for defendants to respond and engage in
litigation; despite this incentive, default judgements are still quite common: why?
Lack of resources or lack of a valid defense and defendant would rather just
default than pay the legal fees for a defense that would fail, or perhaps the
defendant never received adequate notice
ii. According to the court in Peralta, courts may be concerned about allowing a
default judgement to stand when there have been procedural errors such as lack
of adequate notice
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b. Under Rule 55(b)(1), if the plaintiff’s claim is for a certain sum or a sum that can be
easily computed, the clerk, on the plaintiff’s request with an affidavit showing the
amount due, must enter judgment for the plaintiff for that amount against the defendant
who has defaulted by not appearing.
c. Under Rule 55(b)(2), in all other cases, the party must apply to the court for a default
judgment.
i. If the party against whom the default judgment is sought has appeared, that party
must be served with written notice of the application at least 7 days before the
hearing.
ii. The court may conduct hearings or make referrals, preserving any federal
statutory right to a jury trial—when to enter judgment, it needs to:
1. Conduct an accounting
2. Determine the amount of damages
3. Establish the truth of any allegation by evidence; or
4. Investigate any other matter.
d. However, according to Rule 60, the court may vacate a judgment based on good cause.
i. Corrections based on clerical mistakes; oversights and omissions
ii. Ground for relief from a final judgment, order, or proceeding. …the court may
relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
1. (1) mistake, inadvertence, surprise, or excusable neglect
2. (2) Newly discovered evidence
3. (3) Fraud, misrepresentation, or misconduct
4. (4) Judgment is void
5. (5) Judgment has been satisfied, released, or discharged
6. (6) Any other reason that justifies belief
2) Dismissal:
a. Voluntary Dismissal
i. Under Rule 41(a), the plaintiff may dismiss an action without a court order by
filing:
1. (i) notice of dismissal before other side serves answer or motion for
summary judgement; or
2. (ii) a stipulation of dismissal signed by all parties who have appeared
ii. Unless the notice or stipulation states otherwise, the dismissal is without
prejudice. But if the plaintiff previously dismissed any federal or state-courted
action based on or including the same claim, a notice of dismissal operates as an
adjudication on the merits.
b. Involuntary Dismissal
i. Under Rule 41(b), if the plaintiff fails to prosecute or to comply with these rules
or a court order, a defendant may move to dismiss the action or any claim against
it.
ii. Unless the dismissal order states otherwise, a dismissal under this subdivision (b)
and any dismissal not under this rule – except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19 – operates as an
adjudication on the merits/with prejudice
1. strong incentive for plaintiffs to remain involved in the litigation
c. Dismissals under Rule 12(b) (6)
3) Settlement and Third-Party Mediation
a. Settlement is an option to conclude a case without going to trial.
i. Can involve negotiation and mediation. Settlement is cheaper and faster and trial,
can be used to keep information confidential or to control risk.
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ii. In a settlement agreement generally neither side is admitting liability, they are
merely avoiding litigation
b. Third-party mediation is a means to facilitate settlement.
c. In writing a settlement agreement, a lawyer should consider including:
i. consideration (money damages)
ii. operative release language (plaintiff giving up pursuit of claim = strengthens the
settlement for defendant)
iii. certain language that defines the scope of the claim:
1. it can be either broad (helpful to the defendant) or narrow (helpful to the
plaintiff: so that the plaintiff maybe can bring another claim against the
defendant)
iv. identity of the party releasing the claim
v. boilerplate names of others who release the claim as well as the plaintiff
vi. definition of the scope of the claims
vii. disclaimer of liability of defendant
1. can be raised as a defense against an attempt to file a lawsuit
viii. covenant not to sue (if settlement happens before litigation) or refile the claim
(if settlement happens after litigation ensues)
1. a party who decides to sue following the settlement would be in breach
of contract
ix. provision that settlement constitutes a voluntary dismissal with prejudice
1. With prejudice: under the concept of res judicata affirmative defense
under Rule 8(c)(1), a party would not be able to sue again on the same
claim = strengthens the settlement for defendant)
2. Without prejudice: no adjudication on the merits = strengthens the
settlement for plaintiff
3. consent decree (gives the settlement the effect of a judgement; the
court retains jurisdiction over disputes concerning terms of settlement
agreement = makes it easier to enforce the agreement)
x. confidentiality/nondisclosure clause
d. What happens after a release is signed?
i. plaintiff agrees to settlement and sues anyway?
1. defendant can respond with an affirmative defense in the answer under
Rule 8(c)(1): release
2. defendant can file a motion for summary judgement and include the
release in the attachment
3. defendant can sue for breach of contract filed as a counterclaim along
with the affirmative defense in the answer, and follow up with a motion
for summary judgement
e. How can third parties help the parties come to an agreement?
i. mediators: neutral and has no coercive power and helps the parties think
cooperatively and help them overcome communication barriers
f. How could settlement affect third parties, potentially negatively?
i. third parties subjected to similar circumstances as potential plaintiff will be
unlikely to believe that they have a claim due to lack of legal precedent and also
due to confidentiality clauses in settlement agreements
4) Summary Judgement: the issue is when summary judgement can be granted?
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a. The issue is when summary judgement can be granted: Under Rule 56(a), the court
must grant a party’s motion for summary judgment if three requirements are met: 1)
there must be no genuine dispute of a fact, 2) the fact must be material, 3) the movant
is entitled to judgement as a matter of law
i. 1) no genuine dispute of a fact  according to the Supreme Court in Anderson,
a genuine dispute exists if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party
1. a genuine dispute is not a mere disagreement between the parties
about the facts and it can’t be created by pointing to disagreements
between parties in the pleading stage
2. if the movant is the plaintiff, they need to show that there is no genuine
dispute as to any element of the claim, since all elements would need to
be proven at trial. If the movant is the defendant, the party only needs
to show that there is no genuine dispute as to at least one element of
the claim.
3. THIS IS WHERE YOU DEAL WITH WHETHER THE PARTIES HAVE MET THIR
BURDENS
ii. 2) the fact must be material  according to the Supreme Court in Anderson, a
material fact is a fact that might affect the outcome of the suit under the
governing law
1. In order to determine this, the claim must be broken down into its
required elements under the governing law
a. First, specify the factual issue at hand. Then, specify the
elements of the claim. Finally, ask whether the fact could be
determinative.
iii. 3) the movant is entitled to judgement as a matter of law  The movant is
entitled to judgment as a matter of law if, based on the undisputed facts and
under the governing law, the movant would win at trial (no chance the jury
would rule in favor of the non-moving party):
1. **mini IRAC, where the rule statement includes the elements of the
claim or the defense, the application is limited to those undisputed
facts, and then you ask: Is that sufficient to enable the moving party to
prevail under that governing law?
2. “under Michigan WPA, plaintiff must demonstrate objective notice and
timing. Here, plaintiff demonstrated that defendant knew of report and
firing happened two days after report. This is undisputed. Therefore,
based on the undisputed facts and under the governing law, the plaintiff
would win at trial, and the movant is entitled to judgment as a matter of
law.
b. The issue is how parties support the assertions about whether or not there is a
genuine dispute of fact:
i. The pleadings alone do not support a motion for summary judgment. Under
Rule 56(c)(1)(a), a party asserting that a fact cannot be or is genuinely disputed
must support the assertion. In order to support their assertion, the moving
party must support the assertion by, Rule 56(c)(1),
1. citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
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declarations, stipulations, admissions, in derogatory answers, or other
materials; or
2. showing that the material cited to does not establish the absence or
presence of a genuine dispute, or
3. or showing that an adverse party cannot produce admissible evidence
to support the fact
ii. Under Rule 56(c)(1)  a party has at their disposal any materials from the
record: nonmoving party would want to investigate the record that conflicts
with the evidence that the moving party is providing
1. one important type of evidence that can be used is an affidavit: these
are important because they can be tailored to the needs of a summary
judgement motion  Under 56(c)((4) information in affidavits have to
be based on affiant’s personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify of the matters stated
a. there are concerns about the abuse of affidavits  due to this,
Rule 56(h) imposes sanctions for filing an affidavit in bad faith or
to cause delay
iii. Under 56(c)(2) a party can object to materials cited by the other party because
they cannot be presented to the court in an admissible form
iv. Under Rule 56(c)(3), the court only needs to consider cited materials, but it may
consider other materials in the record.
v. Under Rule 56(d), if a nonmovant shows by affidavit or declaration that it
cannot present facts essential to justify its opposition, the court may:
1. Defer consideration of the motion or deny it
2. Allow time to obtain the affidavit or declaration or take discovery;
3. Or issue any other appropriate order
c. The issue is who bears the burden of summary judgement:
i. Under Rule 56(c) and according to the Supreme Court in Celotex, in order to
prevail on a summary judgement motion, the moving party bears the initial
responsibility of informing the district court of the basis for its motion and
identifying those portions of the record which it believes demonstrate that the
non-moving party failed to present evidence sufficient that there is a genuine
issue of material fact. Importantly, the moving party does not need to provide
affirmative evidence to support its motion. It can simply point to the lack of
evidence from the non-moving party.
1. In order to do this, the moving party can, under Rule 56(c)(1)(A):
a. cite to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, in derogatory
answers, or other materials; or
b. show that the material cited to does not establish the absence
or presence of a genuine dispute, or
c. or show that an adverse party cannot produce admissible
evidence to support the fact
ii. According to the Supreme Court in Celotex, the non-moving party, bears the
burden of presenting evidence that would lead a reasonable person to question
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the facts presented, or in other words, that there is a genuine issue of material
fact.
iii. Timing- According to Rule 56(b), unless a different time is set by a local rule or
the court, a party may file a motion for summary judgment at any time until 30
days after the close of discovery.
iv. According to the Supreme Court in Celotex:
1. If the nonmoving party would have the burden of proof at trial:
a. The moving party has the burden of establishing that there is no
genuine dispute of material fact, and that there is a lack of
evidence to support an essential element of the nonmoving
party’s case. The moving party does not need to offer any
evidence to support the motion, it may simply point to a lack of
necessary evidence; and
b. The nonmoving party then has the burden to show that there is
sufficient evidence to establish the essential element.
2. If the moving party would have the burden of proof at trial:
a. The moving party must initially provide evidence to support the
essential elements of its case showing a lack of genuine dispute
as to a material fact; and
b. The nonmoving party then has the burden to provide evidence
showing a genuine dispute of material fact.
d. Additional Court Rules
i. Judgment independent of the motion: Under Rule 56(f) After giving notice and
a reasonable time to respond, the court may:
1. grant summary judgment for a nonmovant;
2. grant the motion on grounds not raised by a party; or
3. consider summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute.
ii. Failure to grant all requested relief: Under Rule 56(g), If the court does not
grant all the relief requested by the motion, it may enter an order stating any
material fact — including an item of damages or other relief — that is not
genuinely in dispute and treating the fact as established in the case.
iii. Affidavit or declaration submitted in bad faith: Under rule 56(h), If satisfied
that an affidavit or declaration under this rule is submitted in bad faith or solely
for delay, the court — after notice and a reasonable time to respond — may
order the submitting party to pay the other party the reasonable expenses,
including attorney’s fees, it incurred as a result. An offending party or attorney
may also be held in contempt or subjected to other appropriate sanctions.
e. What are the differences between 56(a) and 12(b)(6)
i. 56(a)1. Can be filed any time before 30 days after the conclusion of discovery
2. Can be filed by both plaintiffs and defendants
3. Focus on the evidence. (burden of proof—sufficiency of evidence)
ii. 12(b)(6)
1. 12(b)(6) can be filed at any time during the pleading stage
2. Focuses on the allegations (sufficiency of the pleadings) (Twiqbal
standard)
3. Can only be filed by a defendant
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4. Under rule 12(d), if on a motion under 12(b)(6) or 12(c), if anything
outside of the pleadings is introduced, the motion gets converted to a
summary judgment motion.
Summary Judgement Standard
NOTE: Different from Motion 12(b)(6)
The issue is whether summary judgment can be granted.
Under Rule 56(a) in order to grant summary judgement a court must determine three things: (A) the
relevant facts are material, (B) there is no genuine dispute, and (C) the movant is entitled to judgement
as a matter of law.
A. Material facts
I: The first issue is whether the relevant facts are material.
R: According to Andersen, a material fact is a fact that might affect the outcome of the suit under the
governing law. The governing law will determine which facts are material.
B. No genuine dispute
I: The second issue is whether there is a genuine dispute.
R: According to Andersen, there is a genuine dispute if, based on the evidence, a reasonable jury could
return a verdict for the nonmoving party. A genuine dispute is not a mere disagreement, it must be
based on evidence.
ADD IN BURDENS HERE – live session 40, 56 mins
c. The movant is entitled to judgement as a matter of law
I: The third issue is whether the movant is entitled to judgement as a matter of law.
R: According to Celotex, the movant is entitled to a judgment as a matter of law if, based on the
undisputed facts and under the applicable law, the movant would win.
NOTE: Unique and separate IRAC here: R is applicable law, A is the undisputed facts.
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