ATTACK SHEET
Filing lawsuit:
 Need to plead, file a complaint
o 8a
 1. Grounds for subject matter jurisdiction
 2. Short and plain statement of the claim needs to be both
 Factually sufficient- how much factual detail needs to be
included?
 -enough to make the claim plausible. Enough to be more than legal
conclusions because we cannot believe legal conclusions. Enough that
eliminates other reasons for why someone acted the way that they did.
Can dismiss without prejudice to add these claims
o Twiqbal requirements
 Accept facts as true, ignore legal conclusions
 Then ask if there is a plausible claim from the
facts, more than speculation, not just possible
 There were no facts to support the reason that
they terminated him
 To determine plausibility, judge uses own experience and
common sense- subjective
o Facts should create enough information to exclude other
potential reasons for the behavior
 could there be other explanations?
 Legally sufficient
o Each element of the law needs to be claimed and included
and alleged, meets the law
o If one missing, dismiss without prejudice to fix and
add that
o If elements simply not supported or not true based on the
facts, dismiss with prejudice because does not meet
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 3. Statement of relief sought
Note- 12b all defenses need to be asserted in their response, but can use motions for the
following 12b1-7 needs to be done before a pleading
You can join motions together
When waive by not joining (12(1-5) GET WAIVED)
Failure to state claim 12b6 and joining a required party are not waived if you do not join them
when you do other 12b motions
Need to respond within 21 days (by motion or answer)
Unless waived formal service of process under 4d, will then have 60 days to do so
Those defenses listed under 12b can be answers or pre trial motions to dismiss
Smj
Pj
Improper venue
Improper process- summons and copy of complaint, problem with these
Improper service of process
Failure to state claim
Failure to join necessary party under 19
12b2,3,4,5 have to be put in first response (answer or motion) or else waived
12b6,7 can be raised any time through trial, do not have to be in first one
12b1 is never waived, can be raised any time
o Defendant’s potential response to your claim/their attack
 Plaintiff failed to state a claim
 Would move for this in a
 1. Pre answer motion 12b6 (must be done before pleading their
answer) NOTE this is not waived if want to do this before giving their
answer and have already brought up another 12b motion
o If denied, must file answer in 14 days from denial
 2. Could list it as a in their answer as a response and then
o Make a motion under 12c anytime during the trial (judgement
on pleadings after pleading closed but not late
enough to delay trial)
 Or could bring it up at trial 12h2
 Plaintiff needs to make a more definite statement
 12e (more definite response to be able to reasonably prepare
a respond before filing response, point out the defect, if court
agrees, plaintiff needs to obey it in 14 days or the pleading will
be struck down)
 If motions denied, answer needs to be served after 14 days
o Or defendant could answer as planned
 Timing: 21 days after served by
 Pre-answer motion 12 or
o If denied, must file answer in 14 days from denial
 8b admission or denial
 Has to
 Admit
o Either expressly or by failing to deny
o These things will be taken as true, no proof finding in
trial about those issues
 Deny or
o Admits allegations in this paragraph and denies each
and every other allegation in the complaint
o Careful, be specific as to not accidentally admit
something
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Don’t plead contrary facts, just respond to
substance- 8b2
 Don’t say "was in brazil," nor too literal
denial
o Allegation becomes joined- need evidentiary
determination
o Say lack of sufficient information for
 Has effect of denial
 Good faith under rule 11, cant use if have
reasonable access or general knowledge/public
access to info
 Each allegation
 If does not deny, it is admitted
 AND
 Assert all affirmative defenses 8c, or analogous
 It is an affirmative defense when it injects new matter into
dispute
 Or, can not show up
 Will go into default and default judgement if plaintiff
seeks it
 Only do this if certain court has no personal nor subject
matter jurisdiction
 Because will have to collaterally attack the default
judgement frcp 55
o If you do not go to court and goes into default
judgement, can only attack on jurisdictional grounds,
cannot attack that judgement any other way
o Forfeits right to litigate on merits of claim if
loses jurisdictional argument
o So, if you know does not have any jurisdiction, then can not go
to trial because even if goes on default judgement, you know
you can challenge it. If not sure if they have jur, if they do
default judgement you will be stuck with it because you cannot
challenge it any other way
Affirmative defense? Burden for plaintiff or defendant to bring up
1. Look at wording of the statutes, look at 8c and see what is affirmative
defense and what is analogous
2. Look at law, if it seems like an exception, it should be something that the defendant brings
up, not the plaintiff in their claim
o Relates to failure to state claim for plaintiff- if statutes wants you
to state it, you should unless want it challenged under legal insufficiency
Has to be put into answer
Difference between denial and affirmative defense
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o TEST:
 Consider if it will raise new matter
 If other side would know that you will bring it up based
on what is mentioned, fine to use denial
 If will bring up new, unforeseen material, use affirmative
defense
Amending the claim
Depends on timing, typically done before trial
o Pre trial amending
 15a
 Plaintiff can amend once as a matter of course
o 21 days from the date of the complaint being made
 15a2 After these 21 days, can still amend with
court order, make a motion
 Must be given freely when justice
requires
 How figure this out?
o Accuracy vs efficiency/fairness
o Delay caused? Prejudice?
o Using good cause and diligence?
o Defendant can amend answer once as a matter of course 21
days from filing their answer, add their affirmative defense
o During/after trial
 15b variance in evidence at trial between the pleadings/claim
 evidence being entered is beyond what should be included as part of
the claim
 Amendments for this also given freely when aid in
presenting merits
 Make sure no prejudice based on delay
 Court can suspend and allow other side to take time on new
matter
o Relation back 15c
 15c used in only one circumstance
 Only used if amending pleading to add a claim when statute
of limitations has run on the claim
 Example
 Way a defendant would challenge amending their claim: vetco would
argue that leave to amend should be denied because statute of
limitations run
 Respond that I can amend under 15c
 Test- new claim against existing party after sol, we will
relate back/make believe if it arose out of same
transaction as the old one
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If just a new claim, still needs to arise from same
transaction
 Judge has discretion, goal is to allow to be decided on the
merits, balance it against prejudice to the other party, was there
notice to them on the face of the claim?
 Transaction definition/test- could be what gave rise
to everything? Could be narrow or broad
 Look at the injury to the plaintiff
 Conduct by defendant
 Overlap of damages requested for the claims
 Overlap of facts used to prove the claims
 Similar nature of claims and their underlying
theories
 time
If amendment is against new party
 Same transaction
 Will not be prejudiced in defending on the meritsVerify that they had the informal notice during the
statute of limitations to act
 Court also admitted that they could have
known, but needed to meet last requirement,
too
 Knew the identity of the new party but for their
mistake about the identity
 Smith had not known their identity at all and
wanted to add them "new"
ENFORCEMENT
Rule 11- sanctions
o Prevent abuse of the rules
o Can use rule 11, court’s initiative, or 28 usc 1927
o Procedure of how to move for rule 11 sanction 11c
 The motion itself has to describe the specific conduct but before filing, first,
 One side serves to counsel of other side,
 Safe harbor, don’t file with court until other side
 has 21 days to fix it or withdraw
 If not fixed within safe harbor time, file with the court
 The court itself can show cause and require the party to defend
their actions
Objective standard
o empty head but pure heart no justification, has to stop and think
o What triggers rule 11? 11a/b- signing/presenting/advocating to court
 Certifies did reasonable inquiry under the circumstances?
And also assuring that not improper purpose and supported by the facts
that will probably be found. Happens when sign or give it to the court
11b
 Test: best of knowledge, information, belief
 considers the time and experience of lawyers,
if had lots of time and resource and if this
is a big deal, had to do lots of research
under circumstances
 if bringing lots of same case they/someone
else brought before, that is wasting time, etc
 Warrants for its proper purpose
 Not to harass, cause unnecessary delay, increase
cost of litigation
 Either real claims or on frivolous claims to extend or
modify existing law 11b
 Look at precedents, are their claims based
on dissents or temporal?
 Claims that likely have legal support and will
have evidence 11b
 How much time had to gather good info?
 Was info open or hard to access?
 If finds violation, court has discretion for
sanctioning 11c
 Limited to what is sufficient to deter
 Not compensate, not punish
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Sanction types- discretionary
o Non-Monetary
o Monetary
 Fine to court
 Pay fees to opposing party that accrued because of the violation
they created
 How determine amount?
 Subjective, not reasonable amount
 Was it willful or negligent?
 Is this common for the party?
 How important was the error?
 Effect on the litigation?
 Experience of the attorney?
 What resources do they have?
 The more, the more has to pay
o Against who?
 Attorney
 If so, firm also in trouble unless outstanding instance
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Party
Only not monetary if represented by attorney for 11b2
violations because legal contentions are for attorneys
Policy
Deter baseless filings- efficiency and fairness
Not about punishment/compensation- it is about deterrence
First- identify section of rule 11 violate
 B2- need to be legal contentions
 B3- legal contentions need to have factual/evidentiary support now, or
will likely have it after discovery
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PERSONAL JURISDICTION
 Does the state have power over the defendant?
 Need statute and due process rights to proceed
 General jurisdiction
 Entity at home, citizen, incorporated, primary place of business, doesn’t
need to be reasonable and contact does not need to give rise to the claim
 Specific personal jurisdiction
 Some relationship between contacts and claim, don’t need explicit consent or
presence
 1st analyze if meet the statutes
o Meets state or fed long arm (look at facts) or 4k exceptions that are
present and applicable?
 2nd analyze if application of the statute meets constitutionality/due process
o Does the application of the statute satisfy due process
 Purposeful availment with minimum contacts
 Availed by self to reap the benefits to justify being
obligated to be adjudicated under?
 Types of jurisdiction
o Quasi in rem- treat it as a contact
 attach property to get jurisdiction, no relation to claim
 If value of attached property is only 200, that’s the max in
quasi rem jurisdiction over neff, cant have jurisdiction of neff
at large and all of his properties
 Extent of in quasi rem/jurisdiction is only up to the
amount of the property, cant get other property
 But in personam is personal obligation of full amount of
judgement
o In personam- attaching the person, person is in state, etc
o In rem- claim about property where property is the claim
 2 purposes
 basis for claim
 Basis for personal jurisdiction
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Ways to consent to jurisdiction
Can still have jurisdiction through waiver of right to challenge personal
jurisdiction, consent, tag, at home
Pers jur over defendant if get consent or waiver
Forum selection clause in contract, if sign, have consented to that clause
that says any action of contract will be filed here
o Only deals with breach of contract instances
o Choice of law is compelling and gives notice but is not consent
Consent- show up
Waiving personal jurisdiction in fed court- fail to file rule 12 defense of
no personal jurisdiction when filed another rule 12, court will find that
you waived right to say lack of personal jurisdiction defense
o In states, it is special appearance
Defendant files counterclaim in forum state
Tag jurisdiction
o If person found within the state at any point in time, time, reason,
does not matter, serves you with process
 Is this always constitutional? Yes
 Scalia- intl shoe does not govern tag jur, but historically
always used this
 Brennan's argument
 Any time in state, by definition, getting benefits from
state- public service, intl shoe governs
2 prong test for minimum contacts/personal jurisdiction where not at home
Meet both, but have to balance
Minimum contacts
o Purposeful availment- not unilateral (someone just lives there or
someone takes it into state themselves)
 Tests
 Stream of commerce directs with intent to target state, acts, not
expectations/foreseeability
 puts into stream and aware of sales, sales are
substantial
 contracts- forum selection clause automatically creates
jurisdiction/consent, but choice of law clause does not
 prior negotiations
 terms
 future consequences
 effects for intentional torts
 Express aiming test
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Intentional tortious action
 AND NEEDS
 Something more,
 Cant just be the other party's place of
residence
 Expressly aimed at forum state
 Causes actual harm that defendant knows is
likely to be suffered in the forum state
 Effects test factors
 Focal point of the story/d's actions
 Facts in the story
 Where do the sources for the story
come from
 Focal point of harm
 P's residence
 P's work
 Level of distribution in state
 Internet- injury, minimum contacts and aiming at state
Level of contact-does not matter as much as purposeful availment
 Once/isolated
 Continuous and systemic
Relationship of contact to claim
 Gives rise- Burger king- contract was the contact with Florida
 The contract gave rise to the breach of contract claim
 Unrelated Bristol- defendant’s actions in forum connected to the
claim
 Ford- in state injury and activities in state must involve
the same product- Selling, servicing, advertising cars,
does not have to be causal
Reasonableness/fair to bring against the claim against the defendant
in this state?- if general jurisdiction, don’t need
 D's burden Hard, now bc of technology
 P's interest in adjudicating in this forum
 Are they a resident/citizen?
 Was this the location of the injury?
 Was this where the conduct/activity that gives rise
to occurred?
 What law is governing in the forum?
 Forum's/state’s interest in adjudicating in forum
 Wants to protect its people
 Interest of other states/nations/interstate
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Is there a joinder of multiple plaintiffs or defendants?
Location of witnesses, evidence
Other states’ interests and arguments for why this forum is
better to adjudicate in
CHALLENGING PERSONAL JURISDICTION UNDER RULE 12
Answer in 21 days or 60 days if waived service unless challenge personal
jurisdiction by
o Defendant filing rule 12 pre answer motion or
o Placing the defense in answer or
o Amending their answer with this defense as matter of course under 15a
Can use personal jurisdiction to collaterally attack prior judgements
DUE PROCESS RIGHT TO COUNSEL
3 factor test the court evaluates/balances to see if there is a right to
counsel
o Private interests at stake- the more foundational/significant, the
more right
 Physical liberty or criminal leads to automatic right to counsel
 Property liberty
 Familial liberty
o Government’s interest
 Aligned with private interests?
 Economical or efficient to provide counsel in such a situation?
o Risk that private interest will be erroneously deprived if no counsel
considering
 Formality of the proceeding
 Is it evidence-based
 Adversial
 Punitive even if no physical liberty at stake?
 Nature of the substantive law- difficulty of
understanding?
 Nature of factual issues
o Hard to comprehend
o Unfair
o Technical
o Will there be expert testimony?
 Individual’s own abilities
o Educated?
o Distressed because of life situation or intimidated?
PROCEDURE
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When
Uses
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plaintiff asks for counsel, is denied, and loses the trial
as basis for appeal claiming
Should have been given counsel and
Previous judgement should be void for lack of due process in denying the
counsel
DUE PROCESS RIGHT TO NOTICE/SERVICE
 Rule 4 or statute and constitution
 Can waive service or serve
 Statute- 4d
 What has to be sent
 How can you send it
 Reasonable time to wait after serving, usually 30 days until
 Can ask for fees and costs of serving because did not
waive right to serve
o Effect of waiver
 Gets 60 days to respond versus 21 days
 If fails to waive, has to cover costs and fees unless has good
cause not to
o If serving/defendant does not respond to waiver, must
 Serve personally an individual 4c, 4e
 Serve by person who is not a party, 18 years old
 Where- dwelling
 Place where there is an indicia of permanence that
indicates will be likely to result in actual service, can
have more than one- facts for indicia, extended time for
likeliness
o Leave with person of suitable age/discretion who resides there
o State law service provisions where the court is located or where the
process is served
 Constitutional
o mullane standard
 notice has to be reasonably calculated to inform intended
parties of action and afford opportunity to present objections
 applied in cost/benefit test in light of reasonable alternative
methods used
 balance to see which is the most proper method to use
 interests of the defendant
 type of proceeding- losing house or worse, open to errors?
Need to prep
 reliability of method and
 reliability and expense of other usual methods
o Defenses
 Even if met statute, application of the statute to me is
unconstitutional, violates due process
 Collateral attack- void because did not give notice for first
case
o Challenges:
 Could challenge constitutionality of service even if noticed?
 No because the deal is about being notified
 Opposite with challenging under rule 4
 If didn’t do correctly, does not matter if received, it is
grounds for dismissal even if got notice
CHALLENGING SERVICE/PERSONAL JURISDICTION
21 or 60 days to respond if waive- but if waive, will probably not challenge
Raise rule 12 pre answer motion or
Put it as defense in answer or
Amend answer to have it as matter of course 15a
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VENUE
 Personal jurisdiction decides the state
 When venue improper, has to dismiss the case
 Venue decides the federal district in state
o Completely statutory 28 usc 1391, no constitutional aspect
o Options for venue 28 usc 1391
 If all defendants are in state, pick any district where one or
more defendants reside in
 Reside definition for venue
o Individuals reside where they are domiciled/are
citizen of
o Entities- use district where are subject to personal
jurisdiction
 District where substantial part of the events gives rise to the
claim that occurred- if substantial enough, is sufficient, does
not need to be the most substantial
 Bates- just events that gave rise to the claim must be
substantial, does not need to be the most substantial,
material, significant to the claim
 Consider claim and facts
 Only if no district available under 1 or 2, then use any
district where defendant is subject to personal jurisdiction
TRANSFER within same system/sovereignty
o Standard
 Convenience for parties and witnesses in interest of jurisdiction
 If from proper venue to proper venue 28 usc 1404
o Choice of law of original venue with case applies after the transfer
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If from improper venue to proper one 28 usc 1406
o Use this to dismiss or
o transfer in interest of justice to a proper venue
o same analysis
o choice of law of new venue will be applied
FORUM NON CONVENIENS
 Rationale for forum non conveniens- when alternative court has authority to
take case and when trial will create oppressiveness for defendant,
inappropriate, may dismiss
 when filed in proper venue but more convenient, appropriate and adequate
venue available outside of the federal system aka outside of the country
 test/gilbert test balances to do forum non conveniens transfer
o private and
 where the evidence and witnesses are
 burden on the defendant
 plaintiff’s interest in original or new forum
 other practical problems in litigating in the current forum
versus the new one
o public interests
 state/interstate/international interests at stake
 what law will be governing?
 General fairness to court and jurors in original versus
new location
 2 factors that critical- law says fnc needs adequate alt forum before even
file where plaintiff can get reasonable recovery
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Same
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CHALLENGING VENUE
as personal jurisdiction and service
Must raise defense in 12 pre answer motion or
In answer
Or in amendment to answer in due course in 15a
POLICY
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Accuracy
 Purpose of lawsuit- is the defendant liable
o a decision in the case
 You want rule decide the merits underlying the case
o Not necessarily on procedure
 Don’t want case thrown out bc in wrong court but because
 That is not the wrong decision, but it is not
accurate
Want it to be that Dr was wrong etc
 Also hope that it is correct- hope to end up with right decision
Efficiency
 Don’t waste time and resources
 Rules will limit time that people have to do things
 This often cuts against other goals
Consistency- same case
 Hope that if took case and litigated in court 1 and 2, get the same
outcome
 Joinder- force to join things in case 1 to avoid possibility of
inconsistency if done multiple times
Uniformity- across cases
 Treating like cases alike
 One set of rules
Finality
 Once judgement on case, want reliance on it, repose on that judgement,
not scared that will come up again, wont get sued again
fairness
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PLEADING
COMPLAINT TEST
8a governs 3 factors to make a complaint test
1. Grounds for subject matter jurisdiction
 does not require allegations of personal jurisdiction or venue, but
some statues might
2. Short and plain statement of the claim distinguish all legal conclusions from facts
 Legal sufficiency and
1. Look at the law, identify each element of the claim
2. All elements of the law must be alleged in claim
 If missing, dismiss without prejudice so that can go back and
add
3. Is each element supported?
 If mentions the legal element but does not meet it, dismiss
with prejudice
4. all elements must meet the legal definition
 Make sure they meet the standards
 Factual sufficiency
1. Ask how much factual detail must be included?
2. Standard comes from Twombly and Iqbal
 Look at allegations included
 Consider if they are facts or conclusions
 Does term have a legal definition? Or is it
statement of what happened/fact
 Court will accept only the facts as true, not the legal
conclusions made
 Ask "is there plausible claim from facts?"
 Has to be more then mere speculation, if not, fails
 Twombly
 Court said that the ILEC's actions could have
just been for own interest
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The claims that plaintiffs allege have to have
additional facts that exclude independent self
interested acts that could be the explanation for
the parallel behavior, cannot be able to be fully
explained by the alternative reason
Iqbal
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More than plausible
 Fact specific, use common sense
3. Statement of relief sought- can be different types of relief: injunction,
damages, etc
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PROCEDURE AFTER CLAIM FILED
Defendant can attack plaintiffs complaint/claim on failure to state a claim
o Through
 Pre answer motion 12b6 or 12e or
 List failure to state a claim in their answer and then
 Answer- responding to the claim filing 8(b) or 8(c) –
admissions, denials, affirmative defenses
 If deemed affirmative, then defendant has to bring
up, if not, then plaintiff has to plead as element
of their claim
 8c not exhaustive list
 Both are still defenses
 Rule 12- procedural rule that tells defendant about
what have to do, when, after complaint is filed
 After 21 days, have to file answer or 12b
motion
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Later make motion under 12c for failure to state claim to judge
on the pleading
 After pleading closed but not late enough to delay trial
 12c for judgement on the pleadings
 There is mechanism to file these motions after the
defendant’s answer
 Is still a motion on the pleading even though it is
done after the answer
Pleading- just documents that file and serve that gives info, telling
a story, shows what will be litigating- gives notice that will
eventually discuss this
Motion- I want you to decide this now- triggers court to make decision
POLICY ARGUMENTS
Provide notice for defendants
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Purpose of balancing equities
Defendants
 Fairness
 Not make them pay for expensive
trial that might lose, one that
has no obvious conclusion in
sight
Plaintiffs
 Accuracy
 Make it easy enough to get in the
door, utilize discovery, looking
at facts is worthwhile even if
unlikely
EXAMPLE FOR LEGALLY/FACTUALLY SUFFICIENT and CHALLENGING CLAIM
 Loss of consortium example
Defendant files pre-answer motion to dismiss for failure to state a claim
12b6
Check short and plain statement
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Legally sufficient question (are all
elements alleged or was one ignored)
1st look at law and use parallel
language, all elements must be alleged
in complaint
 Plaintiff has to be spouse of
injured person, said
-But were
they married?
 Negligence on part of the
defendant
- Said was
negligent- this could be a legal
conclusion, not statement of the
facts
Example saying that they terminated me
because x. that is a legal conclusion,
cannot accept that as true
 Has to cause injury to the person
injured
-Hit Ann and
she was injured
 Has to be a loss of consortium
-Claimed that
lost fellowship and sexual relationship
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Claim does not mention if
partner/spouse, anything
What can court do because legal
sufficiency not met?
 Dismiss without prejudice
 Goes back and changes, addresses
spouse, but mentions partner, not
spouse
Now judge dismisses with prejudice
because legally inaccurate because
cannot meet legal element even though
they addressed it, cannot fix it!
 Because legally inaccurate,
chances will never meet the legal
sufficiency
What if you just say spouse anyways
 Lying is sanctionable behavior
Trial court has to dismiss if legally
and factually insufficient, but
appellate court can set precedent
NOTE if legally insufficient, dismiss with
prejudice even if factual sufficiency can be
met
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Not legally sufficient because
claim has to meet every part of
law, mirror, be parallel
Factual sufficiency
 Defendant was negligent- that is
legal conclusion, need facts to
make it plausible that this
happened, what were they doing
that was negligent?
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What can court do because legal sufficiency is
not met?
 can dismiss without prejudice to
allow them to bring the facts in to
support these allegations
If attorney, why file it anyways?
o Still a reasonable argument to make that should be considered married
o Trial court has to dismiss if legally and factually insufficient, but
appellate court can set precedent
o How does common law change? By pushing the envelope
CASES

Twombly
o Had motion to dismiss 12bc failure to state claim factually
insufficient
 Claim was a general allegation of contract or conspiracy
o Claim did fail to state a claim, dismissed it.
The claim alleged that there was
Facts need to be plausible
 Conscious parallelism and
 Plausible does not mean there is
 asserted that that behavior was
a possibility requirement, but
result of an agreement
enough fact to raise reasonable
expectation that discovery will
reveal evidence of illegal
agreement
 Mere allegations also need
additional facts to exclude
possibility of other things
 Plaintiff’s obligation to provide
grounds with more than labels and
conclusions, no legal conclusion
 Needs enough factual matter to
suggest the claim
o
Courts have to accept the facts as true, but not the legal conclusions
as true
Can still proceed even if seems improbable
Does away with the low bar of "no set of facts" from conley and raises
the bar to needing factual plausible allegations
o Cant just recite or describe the conduct/legal contention
Arguments for
Dissent/arguments against
 Will be inconvenient, inefficient
 Why trying to protect the wealthy
for time of court and money of
people from the burdens of
defendant if make defendant do a
pretrial discovery?
 Looking at the evidence, however
trial that will likely not be
able to be proven with evidence
unlikely, is important, good to
get into court for plaintiff for
merits and accuracy
o
o
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Iqbal
Claimed that defendant adopted policies that violated const rights that led
to his designation as person of high interest because of his race, religion,
national origin
Said failed to state a claim
test
o First, ignore conclusions of law and focused on the facts then
o Said was just recitation of elements of const discrimination
o Makes them conclusory, not assumed to be true
o Second, apply plausibility standard to the remaining allegations of
fact
o Found: these are not plausible because of other potential
reasons
Dismissal had nothing to do with them being fanciful or unrealistic
Arguments against: Good to get into court for plaintiff
Conley- notice pleading, meet the policy of providing notice
o Alleged failure to state a claim
o Their complaint included:
o Didn’t represent negro employees, violation under railway act
o Asked for relief of declaratory judgement, injunction, and
damages
o Claimed actually insufficient because was a general allegation of
discrimination
o rule
o complaint does not need additional specific facts
o Low bar: Can only dismiss claim if seems that can prove no set
of facts
It just has to give fair notice and grounds for where it sits,
because has opportunity at discovery
Policy
o Arguments for: Pleading is not game of skill
o Goal of pleading is to facilitate proper discussion of merits
o
o

DEFENDANT’S RESPONSE/OPTIONS
Trying to dismiss or attack the claim to get it dismissed or get more time
 12a- time to serve a responsive
 12b and e (motions under this rule)
(answer) pleading
can extend time for answer
-21 days after served
because can wait until motion
is decided to file answer- 14
 12b- pre-answer motions
days
-If denied, must file answer in 14
days from denial

12e- make more definite statement, it
is so vague that cannot reasonably
respond, must give the reasons
-Answer 14 days after fixed with
more definiteness
-

Giving your answer- 8b, defenses, admissions and denials
o Has to do so for each allegation in claim
 Admit
 Either expressly or by failing to deny
 Taken as true, no proof finding in trial about those
issues
 Deny or
 “Admits allegations in this paragraph and denies each and
every other allegation in the complaint”
 Careful, be specific as to not accidentally admit
something
 Don’t plead contrary facts, just respond to substance
because may be misconstrued- 8b2
 Don’t say "was in brazil," nor too literal denial
 When denied, allegation becomes joined- needs evidentiary
determination at trial
 Say lack of sufficient information for 8b5
 Has effect of denial

o
Good faith under rule 11, cant use if have
reasonable access or general knowledge/public access
to info
AND


Assert all affirmative defenses
 Injects new matter into dispute
 Look at 8c- list of affirmative defenses
 If is that or can analogize, then must use affirmative
defense
Is denying sufficient to give notice to what you will argue in court?
o TEST:
 Consider if it will raise new matter
 If other side would know that you will bring it up based on
what is mentioned, fine to use denial
 If will bring up new, unforeseen material, use Affirmative
defense
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

POLICY ARGUMENTS for affirmative defense
Provide notice for defendants
Helps establish undisputed facts on which there need be no trial
Or, can not show up
o Will go into default and default judgement if plaintiff seeks it
o Only do this if certain court has no personal nor subject matter
jurisdiction
o Because will have to collaterally attack the default judgement frcp 55
 If does not go to court and goes into default judgement, can
only attack on jurisdictional grounds
 Forfeits right to litigate on merits of claim if loses
jurisdictional argument


BURDENS FOR ANSWERING AND PLEADING
3 separate and independent that become relevant with the stage of
o Pleading- who has to allege?
 Plaintiff in complaint or defendant in answer?
 Look at claim
o Production- produce evidence to proof allegation made
o Persuasion- persuade trier of fact
 Civil burden of proof- preponderance of the evidence
 WHO HAS BURDEN TO INCLUDE CLAIM EXAMPLE
 Look at the statute when writing the claim to be legally sufficient
o Element that plaintiff has to prove to be legally sufficient or
o Element that defendant can use as a defense for oneself to get the case done?



One of statutes says defendant has to assert, one has to say the
plaintiff prove it
o State 1 LAW: Persons shall be liable for injuries caused by
failure to take reasonable care; provided that no person shall
be liable if the P’s own negligence was a cause of the P’s
injury.
 State law 1- defendant has to raise that, it is in a
second clause
o State 2 LAW: A person who is himself not negligent but who is
injured by the negligence of another, has a cause of action
against the injurer to recover damages for all resulting
injuries.
 State law 2 puts it on the plaintiff to prove- need not to
be negligent before filing this claim. Puts it at
beginning of sentence
Say it was in fed court, what do they consider affirmative? 8c or analogous
o Contributory negligence is one of the listed can see an
affirmative defense
o Affirmative defense is what defense has to raise in response
 So when defendant wants to answer, burden is on them to
prove the contributory negligence from the plaintiff
If burden is on plaintiff, has to make sure includes it in filing to
meet legal and factual sufficiency or else can be dismissed under
12b6, failure to state a claim, if it is an element of the claim, it
is on the plaintiff to raise it
AMENDMENTS
 Depends on timing, typically done before trial
o Pre trial
 15a
 Can amend once as a matter of course
 From the date of complaint made, 21 days
 15a2 After these 21 days, can still amend with court order
 Must be given freely when justice requires
Accuracy/efficiency
fairness
 Is it better to find out and amend now
 Prejudice to the other party because of
versus waiting and wasting time and
the delay?
 What will be impacted because of this
money?
delay
-statutes of limitations run for plaintiff?
-other party has good faith or does
purposefully to screw other side over?
-did with diligence? When found out and
when took action?
During/after trial
 15b variance
 Amendments for this also given freely
 Aid in presenting merits
 Make sure no prejudice based on delay
 Court can suspend and allow other side to take time on new
matter to allow for fairness for both parties
Relation back 15c
o 15c used in only one circumstance- if to add a claim when statute of
limitations has run on the claim
 Test- relate back/make believe if it arose out of same
transaction as the old one
o If just a new claim, still needs to be from same transaction
 Transaction definition/test- could be what gave rise to
everything?
 Considering broadly- plaintiff’s point of view or
 Narrowly- defendant’s conduct/action
 Look at the injury
 Overlap of damages requested for the claims
 Overlap of facts used to prove the claims
 Look at time
 Similar nature of claims and their underlying theories
o Marsh
 Had filed breach/age claims initially
 Wanted to amend to add fraud claims, it was after statute of
limitations so had to use 15c
 Court said breach was opposite from the fraud claims and would
not give notice to defend against and defend for something 3
years earlier
 Nothing in original gave any indication of this
If amendment is against new party, test
o Same transaction
o Verify that they had the informal notice during the statute of
limitations to act
 Court also admitted that they could have known because know suit
filed and they were involved, but needed to meet last requirement, too
o Knew the identity of the new party but for their mistake about the
identity (knew want to sue corporation, just didn’t know name)
 Smith had not known their identity at all and wanted to add them
"new," had used placeholders before
o
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
AMENDMENT/AFFIRMATIVE DEFENSE EXAMPLE



Defendant denies that they trespassed in answer, does not raise affirmative
defenses
At trial, defendant wants to introduce evidence of an easement (say did go
on property, but had an easement), that’s why they are not liable
Plaintiff objects this introduction of the evidence of the easement
 Basis for this objection?
 Rule that gives opportunity to object based on if evidence is
not in pleadings 15b (amendments before and after trial)- can give
free permission to amend the pleadings and add it in
 Evidence is not within the issues raised in the pleadings
 We are talking about easements, not trespass so the
issue was not raised in the pleading
 Now ask if it should have been raised as an affirmative
defense?
 15b says you can still intro easement if meet this ruleaid in presenting merits of case and
 defense cant prove that it will be a prejudice to
them
 Should freely be allowed
 Prejudiced as result of the delay?
Problem here would
be about notice

Entire purpose behind
pleading/answer/affirmative
defense rules is that
everyone knows what other is
doing- give people notice
Was the denial sufficient? 8b3- should it be denial or affirmative
defense?
 Apply test or rule when something becomes affirmative
defense and denial is not sufficient?
 Test: Are you injecting or introducing new matter
into the complaint?
 Yes, no mention of easement in the complaint
 Could the plaintiff had some notice based on the
defense submitted? No, had to bring up in affirmative defense
to be fair
 Rule 8c1
 "Release, license," sounds like easement
 If not listed as one of the options, see if
there an analogous option
 Should the court allow the evidence in?
 15b
 Court should freely permit- amendments
are liked even though inefficient
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Still have to meet the requirements
If too prejudicial should not allow
Helps present the merits- accuracy
What could a prejudice be?
 Arguments How is plaintiff harm
plaintiffs case?
 They are screwed because of the
delay
 Witnesses may have died, etc
 Did something transpire
between when first filed and
now that prevents plaintiff
from making arguments then
that cannot do it now
 Files lost
 Witnesses died
 This is the prejudice
It is implicit in this rule that will
forgo efficiency to get to accuracy,
merits
Continuance- jury go home, come back,
plaintiff allowed to do whatever to
address this
But if so prejudicial, won’t allow the
evidence in
AQUASLIDE/AMENDMENTS EXAMPLE
 At first admits that manufactured it
 Can plaintiff amend claim without leave 15a within 21 days after serving it,
without asking permission
o Yes
 November 15th- can plaintiff another amended complaint?
o No, can only do it once as a matter of course, 15a
 What are the pleading and responsive pleading- complaint and answer
 Nov 15- can defendant file amended answer without courts leave?
o Can they use 15b?
o No, because the answer in question is not generally required, the rule
only applies to ones that are required
 Complaint, answer, done with pleading
 Amending answers, 15b does not really kick in
 July 2005- statute of limitations ran on the claim
 Feb 2006- defendant moves to file amendment to answer to deny they
manufactured slide
o Should it be allowed 15a2

o
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
Yes, should freely be given but only when justice so requires Want to get to the merits,
 As judge, what will ask defendant?
 Why did admit then and why change now, and why did it take
you so long to change your mind?- bad faith?
 When did you believe that were not the manufacturer
 If found out way earlier, bad faith that avoided the
question
 Arguments: Prejudice here?
 Statute of limitations run out, now plaintiffs
cant bring suit against actual defendant
 Has to find new defendant, and because sol run
out, that is huge prejudice
 Court said it was prejudice, but did not find
bad faith
 Allowed amendment in- turns out it was not
their slide
 Favored getting a huge answer now before wasting
everyone’s time
Plaintiffs lost the case
 Then sued defendant in state court in reckless
misinterpretation, won
marsh
plaintiff wants to amend to add new claim
As defendant, what do when they leave to file a different type of claim, a fraud one?
 Statute of limitations has passed, seek motion to dismiss on statute
of limitations
Plaintiff response that
 Relations back rule 15c will allow amending a new complaint even if sol is passed
 Make believe that fraud claim is actually in original complaintas of a practical matter
 So when should allow this make believe?
 Apply test: Arose out of same transaction, conduct,
occurrence of the original claims?
 Policy- why would this be the test?
 Underlying policy behind sol?
 If related back, repose not a problem because
dealing with the same problem
 Should have had some notion that we would
bring it up
 The evidence will still be accessible
Analysis
 Relate back if
Flesh out factual details, change legal theory, add another
claim arising out of same transaction, occurrence, conduct
 Denied if
 Based on entirely diff facts, transactions, occurrence
 Og complaint included:
 Limited factual allegations to jan 20 1988, reasons for age and
breach of contract actions
 No reference to before 1984, none based on promises
 Made these in amended complaint
 Didn’t seek damages for lost employment until new claim of
fraud
 Distinct and not closely related,
 Claims are also substantially different
Judge said it did not relate back, and therefor barred by statute of
limitations because not allowed in through 15c
Does not arise from the same transaction. Analysis:
 Overlap of facts used to prove the claims
 Similar nature of claims and their underlying theories, defendant would
not be able to figure it out, same issue of not having the evidence because of time but
also no fair because would not know about it
 Overlap of Damages requested for the claims
 Evidence to prove the fraud claim vs the evidence to prove the breach
of contract claim, overlap not sufficient, does not suggest notice
 Most of the facts that dealt with original complaint was around Jan
20th
 Facts about fraud claim came out years before
 If considering evidence, would not have been caring about the ones
from 5 years ago versus the ones that were centered around one daynotice, statute of limitations should still apply because repose is still applicable
 Thus, transactions are separate, does not relate back
Smith, 15c to amend to add new party
o Facts
 Cops thought car was stolen, they wrestled, abused him
 Filed in fed court for violation of rights
 Also filed in state court for torts
 Not uncommon to name john doe as defendants- point is that will
try and amend later
o Procedure
 When go to fed court, fed rules govern
 Smith wants to amend to add ross and miles to the complaint
 As ross and miles' attorney, what do?
 Motion to dismiss for statute of limitations for 2 years
has passed
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Main
rule
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
Affirmative defense, statute of limitations is an affirmative
defense to include in answer
But there is exception to the rule that would benefit
the plaintiff- 15c- can amend and add new party even if
statutes had passed
diff between this case and marsh case with respect to
15
Both cases amending to add a claim
Marsh adding new claim against existing defendant
15c1b
Smith is keeping claim against new defendant 15c1c
 15b, same transaction requirement, is met
 The thing that is hard here- party has to receive
notice of the action. 2 parts
 But they had informal notice
 Even admitted that they knew case was
filed
 Should have known if smith did
know their names, they would have
been sued
 "But for a mistake," must identify correct
party's identity
 Most of time 15c1c is against corporate
defendants- when people have trouble
knowing what the corporate name is, but
know who meant
 Other elements of the purpose are met, so
there is not much prejudice to the defendant…
 There is the repose, though, I guess
 Is this concern greater than getting to
the accuracy? This seems a technical concern,
given that notice/fairness would be met but the
merits would not be allowed in
POLICY ARGUMENTS

Provide notice for defendants
ENFORCEMENT

Rule 11- sanctions
o Prevent abuse of the rules
o Can use rule 11, or court’s initiative, or 28 usc 1927
o Procedure of how to move for rule 11 sanction 11c
One side serves to
counsel of other side,
 Safe harbor, don’t
file with court
until other side
-has 21 days to fix
it
-If not fixed
within safe harbor time,
file with the court



The court can show
cause and require
the party to defend
their actions
on the court’s
initiative- court
may fashion an
appropriate
sanction to manage
their own affairs
and achieve orderly
and expeditious
disposition of
cases when
litigants or
attorneys abuse the
judicial process by
acting in bad faith
28 usc 1927- Any attorney
or other person admitted
to conduct cases in any
court of the United
States or any Territory
thereof who so multiplies
the proceedings in any
case unreasonably and
vexatiously may be
required by the court to
satisfy personally the
excess costs, expenses,
and attorneys’ fees
reasonably incurred
because of such conduct.
Objective standard to determine if should be sanctioned
o empty head but pure heart no justification, has to stop and think, goes
to reasonable inquiry
o What triggers rule 11? 11a/b- signing/presenting to court
 Presenting signed pleading, motion, other paper to court,
 When presenting, certifies did reasonable inquiry 11b, so
should have actually done so
 Test: best of knowledge, information, belief, did
inquiry reasonable under the circumstances as to not
waste time
 considers the time and experience of lawyers,
if had lots of time and resource and if this
is a big deal, had to do lots of
research/gather info, did they do those things- look at
statute of limitations
 if bringing lots of same case they/someone
else brought before, that is wasting time, etc
 Warrants did with its proper purpose
 Non frivolous claims 11b
 Claims that likely have legal support
and will have evidence 11b
 Look at precedents
 Does it have more dissents- bad


Temporal- bad
 Who had info, was it open and easy to access or hard to
If finds violation, court has discretion for
sanctioning 11c
 Limited to what is sufficient to deter
 Not compensate, not punish, not outrageous,
either

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
Sanction types
o Non-Monetary
o Monetary
 Fine to court
 Pay fees to opposing party that accrued because of the violation
they created
 How determine amount?
 Subjective, not reasonable amount
 Was it willful or negligent?
 Is this common for the party?
 How important was the error?
 Effect on the litigation?
 Experience of the attorney?
 What resources do they have?
 The more, the more has to pay
o Against who?
 Attorney
 If so, firm also in trouble unless outstanding instance
 Party
 Not monetary if represented by attorney for 11b2
violations because legal contentions are for attorneys
Policy
Policy/arguments: Deter baseless filings- efficiency and fairness
Arguments against: allows for creativity, initiatives, pushing the envelope
Not about punishment/compensation- it is about deterrence
First- identify section of rule 11 violate
 11b2 and 3
 B2- need to be legal contentions
 B3- legal contentions need to have factual/evidentiary support now, or
will likely have it after discovery
CASE

O'rourke
o Was lawyer, was making huge claim, had time, but ended up making a
mistake that a first year student would make, not reasonable under his
circumstances
o
o
o
o
o
o
o
o
Plaintiffs wanted
 declaration that act was unconstitutional, that they were acting
beyond capacities as state officials
 Injunction of no more bad conduct
 Damages for 160b
11b was not about the superfluousness of the actions here
Defendants filed motions to dismiss
 Lack of standing
 Lack of personal jurisdiction
Plaintiffs filed leave to amend complaint
 Have to show court what want to amend
 Added more named plaintiffs
Defendants opposed the amendment on ground of futility
 It was not going to give them standing, and new plaintiffs would
not have standing, either
 With the amendments, were not trying to meet defendants points
that have no standing, were doing their own thing
Plaintiffs voluntarily dismiss claims against all the officials
Difference between 2 dismissals
 With prejudice and- wanted this to make sure does not refile
 without prejudice
Dismisses with prejudice on lack of standing that the plaintiffs
suffered no particularized injury, dismissing all defendants
DUE PROCESS
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

Purposeful availment, foreseeability, relatedness, fairness factors
PERSONAL JURISDICTION- need long arm statute and due process/const
Does the state have power over the defendant?
The plaintiff, by filing a complaint with the court, automatically gives
consent to its authority
POLICY
Due process/constitutional rights of the defendant
Individual fairness
State sovereignty issues- in Pennoyer, cant reach out and take another
state’s citizen
LEVELS OF ANALYSIS
Need a statute and constitutional/due process rights to proceed
General personal jurisdiction is when the person or entity is at home, the
defendant’s contact does not need to give rise/relate to the claim
 Means that any plaintiff can sue with any claim if not, need
Specific personal jurisdiction where some relationship between the contacts
and the claim and also minimum contacts

Legislature in state must enact a law that gives personal jurisdiction to
defendants
 1st analyze if meet the statutes
o Does defendant meet this long arm statute requirement or, if not, does
it meet
 Look at the facts of the case and see if it applies
o Rule 4k exceptions that are present and applicable?
nd
 2 analyze if meets constitutionality/due process
o Does the application of the statute satisfy due process
 Due process for personal jurisdiction
 Purposeful availment with minimum contacts balanced with
reasonableness, such that maintenance of the suit does not offend
traditional notions of fair play and substantial justice
o Policy argument: Availed by self to reap the benefits
to justify being obligated to be adjudicated under?
 Before minimum contacts was a thing, had to consent, or
o Quasi in rem- treat it as a contact now, do min contact test
 attach property to get jurisdiction, no relation to claim
 If value of attached property is only 200, that’s the max in
quasi rem jurisdiction over neff, cant have jurisdiction of neff
at large and all of his properties
 Extent of in quasi rem/jurisdiction is only up to the
amount of the property, cant get other property
 But in personam is personal obligation of full amount of
judgement
o In personam
 attaching the person, person is in state, tag jurisdiction, etc
o In rem
 claim about property where property is the claim
 2 purposes
 basis for claim
 Basis for personal jurisdiction
Can still have jurisdiction through waiver of right to challenge personal
jurisdiction, consent, tag, at home
 Pers jur over defendant if get consent or waiver
 Forum selection clause in contract, if sign, have consented to that clause
that says any action of contract will be filed here
o Only deals with breach of contract instances
o Choice of law is compelling and gives notice that can be used for balance
test of notice but is not consent
 Consent- show up, in states, can still go to court to challenge just personal jurisdiction under
special appearance, or don’t file rule 12 correctly, that shows consent and waived right to
challenge



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

Fed court dismiss for personal jur- can either raise as 12b6 motion, include in answer, 12c, or
amend answer later rule 15
Waiving personal jurisdiction defense in fed court- fail to file rule 12
defense of no personal jurisdiction when filed another rule 12, court will
find that you waived right to say lack of personal jurisdiction defense (raise
as defense in answer)
Defendant files counterclaim in forum state
Tag jurisdiction
o If person found within the state
 Physically in state at any point in time, time, reason, does not
matter, serves you with process
 Is this always constitutional? Yes
 In Burnham, split in justification, but agree on
constitutionality
 Scalia- intl shoe does not govern tag jur, but historically
always used this
 Brennan's argument
 Intl shoe does govern
 Any time in state, by definition, getting benefits from
state- public service, so obligated to have state adjudicate over
you
2 prong test for minimum contacts/personal jurisdiction where not at home
Meet both, but have to balance
Intl shoe minimum contacts test
 Minimum contacts
o Purposeful availment
o Level of contact
 Once/isolated or
 Continuous and systemic
o Relationship of contact to claim
 Gives rise or
 unrelated
 Reasonableness- if general jurisdiction, don’t need
o D's burden
o P's interest
o Forum's interest
 Wants to protect its people
o Interest of other states/nations
o Minimum contacts- what contacts are there
 Purposeful availment- must be how contact got there
 Done through own purposeful availment and not through
someone else’s unilateral activity
 need something more than unilateral activity, as to be
benefited/privilege from the state
 justifies authority because benefitting from there, know benefitting,
intended to and targeted
 stream of commerce- intent, substantial business, knowledge, target,
focuses on acts, not expectations/awareness
 intent/effects- consider if targeting state, not person who is there, see
where origin of out of state injury happened and how it impacts state. If
trying to harm someone and know citizen there, needs something
more, something that is defendant’s actions versus the plaintiff living
there
 contract- look at terms, negotiations,
o
Issues of if the state court has personal jurisdiction
 McGee- reasonableness balanced higher than minimum contacts
o Cali resident got insurance from arizona company
o Tx took over the az company
o Tx and insured did some business- sent his premium from cali
o Sued tx company for a dispute in ca court
o Company only did business in ca for this one person, but still
had jurisdiction
 Defendant
 Had notice
 Inconvenient but not to point of denial
 Plaintiff
 Contract delivered in ca, premiums paid from there
 Ca should have interest to protect its people from
insurance companies
 Reasonableness- state's interest
 Make them go all the way to their state and make
them judgement proof?


Hanson, need more than unilateral activity
o the mere unilateral activity- Hanson moving to fl- cannot
satisfy the requirement under the due process and create minimal
contact for the company
o Contact has to be established by purposeful availment, intention
Gray, outlier, said that need awareness, not intent, for stream of commerce
purposeful availment, argument against
o
o
o
o
o
o
o

Sued an ohio company in illinois
Challenged on lack of personal jurisdiction
Stream of commerce, had pa middleman
 did not matter if was middleman
 Seldom that products will stay in state
Upheld personal jurisdiction
 Benefits from state's laws, even if indirect
Product sold in state expected to be used there, the sale of the
use trickling down to benefit the company
If presume they have knowledge that selling outside, and getting
benefits from selling, not unilateral activity anymore like
hanson
When defective product, not unreasonable to say that stream of
commerce is sufficient contact to establish personal
jurisdiction
Different tests for purposeful availment
Stream of commerce, contracts, intent/effects
Stream of commerce test
 D purposefully directs activities/products with intent/purpose to target
the forum state, focus on Ds ACTS not EXPECTATIONS
 D places product in stream of commerce and aware of sales in the forum
state and such sales are substantial, not an eddy (numbers or $$?)

Worldwide volkswagon- ok jurisdiction was reasonable, but no pers jur so
means no minimum contacts- have to have both, but can balance
o Did not find purposeful availment to seek benefits of ok
 Why
 The way contact was established with ok/purposeful availment defendants did not intend for car to get to ok. It was
robinsons who drove the car there- unilateral activity not
sufficient for stream of commerce
 Hansen unilateral example- she moved to fl, trustee
had no relationship there besides her unilaterally
moving there
 Cant be unilateral activity of third party, has to
be defendants own actions to establish contact in
forum state
 Stream of commerce can also be unilateral and thus not
purposeful availment- once third party takes it and
goes elsewhere, it is their action, not defendantsno intent, no act


Court said the foreseeability of moving the car is not what we
are looking for- then, anything mobile would be foreseeable- act,
not expectation
 So that aspect of stream of commerce does not apply- went
against gray
 Majority says cannot be so broad in how we look at mobility
 Argument: Practical business rationale
 Defendant should have some say/control/predict in where
they want to be opened up
 If not seeking benefits, not fair to get benefits and
make them obliged
 Tv shows up to your house
 Argument against: business of cars- dangerous and mobile, should
make an exception because benefitting from highways of state, people
are mobile and thus interstate customers will be giving you business
 there is already argument for why it is reasonable- reasonable
for state where injury happened to want to hear it
 prove why should be considered as purposeful availment and
thus minimum contact for personal jurisdiction
 Has to be foreseeable for defendants based on their own conduct
 for the small retailers, no evidence that ever sold
outside of the tristate area
 Again, unilateral conduct even in stream of commerce does
not count
Audi did not challenge personal jurisdiction
 There are Audi dealerships throughout ok- selling in a place
is minimum contact, gives rise if injury happens there and defendant
maintains and services the same model there (ford)
 Reasonableness met
 of fair play and substantial justice
 Factors court take into account to decide
hailing into state violates fair play- when
long arm unconst/when no personal jur
 Balancing burden of the defendant
 Often hard to show burden
because pretty easy to
transport these days
 They were 2 corporations in usanot burdensome to point of
unconstitutional
 AGAINST
 Forum state’s interest in adjudicating
dispute






Accident happened there, key
factor in choice of law, states
always interested in having it
be their own state
 Plaintiff interest in obtaining
convenient, effective relief
 What want to know about
plaintiffs level of interest in
suing state?
 If citizen, have most
interest, and state has
most interest in
providing service for
their citizens
 But are residents at the
moment
 Interstate judicial system interest
of efficiency
 Their witnesses, evidence,
hospital records were all
there- all go to efficiency
interests
 Shared interest of several states in
furthering substantive social
policies
Can appeal this decision?
Requirement to appeal- when final decision is given- is
decision of personal jur final?
 When judge says have jurisdiction, that is not
final, because lets the case proceed
 What happens to the case because of the decision
of personal jurisdiction or not- if said no jur,
would be final because case would not continue
Writ of prohibition- separate statute that grants
parties ability to appeal/seek review of judge's
decision that is not final
 Exist so that don’t waste so much time
Statute 1257- allows scotus to hear cases from highest
state courts on issues of federal law
Basis for ok hearing people- a statute. Long arm
statutes- trying to reach out and hail into own statesaid if apply this statute, will impact my due process
rights




Challenges to statutes facial- on its face
 As applied- fine as general matter, but
apply it to me under facts that make it
unconstitutional
Scotus cant tell states how to interpret the law.
But can say that if interpret that way, is
violating constitution
Mcintyre- machine that cut hand off
 Stream of commerce tests
 Purposefully directs
 Intent to target
 Depends on their actions, not what they can expect
o Kennedy vs ginsburg
 Places in stream, aware of sales elsewhere
 Sales are substantial
 Shipping directly is not stream of commerce
 Brennan
 Yes, stream of commerce counts as long as knows will get
there, and asahi knew, regular and anticipated flow of
products
 Oconnor
 Not enough for stream of commerce to reasonably anticipate
 Need additional conduct
o To indicate intent or purpose to serve the market of
that state
 Designing, advertising, customer service
 Cant be unilateral act of third party
 putting out there is not enough, need some targeting, some intent
that going there
 targeted usa but not nj, only 4 had ever been sold, so no foreseeability based
on their acts
o Contracts
 What consider?
 Must be connected to/related to forum
Consider
 Prior negotiations
 The terms
 Future consequences
 Consider fraud or overweening bargaining power
What makes the contract related to the forum?
o Does court say jurisdiction because enter contract with citizen of
state, that is enough
 No, needs to be more
 What are the factors that takes into account to determine?
 Terms of the contract
 There is statute
 Forum selection clauses if were given in the contract
 If contract say florida law govern, why argue that should
go there? State courts want to interpret and apply their
own law. Makes filing case more reasonable
 Burger king- reasonability and purposeful availment
Look at what contract says because not enough to just have the
other party be in another state, signing a contract needs more than the
other person’s location
o Terms of contract
 All are indications of what reasonable person would interpret
 Choice of law clause- fl law will govern
 Court saw this as one factor that give defendant some
notice that could file suit in fl,
o Creates awareness, could create inent, but not automatically
consent
o Increase fl's interest in having this case because
want to interpret and enforce own law- adds to
reasonability
 Forum selection clause- all claims arising under this
contract filed in fl, that is consent, but WAS NOT INCLUDED IN
CONTRACT
 What else suggested that purposefully availed self to
florida?
 Could mcshera's travel to fl impact the other guys?
 Say that not deciding this question
 Need pers jur over each defendant individually
 Don’t attribute one action to other, might if
relationship suggests it
 Signed in individual capacities rather than
partnership
20 year contract
 Also presume that would be making profit
 Nature- long term business contract
 How long is contract and what is it for
 Included purchasing product from them, go with policy
 Creating relationship between fl company and them, not one off
o


Who did negotiate with?
 included people in fl
o Court found that it was enough
 State authority

purposeful availment
 fairness/convenience/reasonability
 Undoes it if notion that fraud or overweening bargaining
power- in dissent kind of Seems unfair that just by
entering in contract, has to open self up to fl
 Majority- if take the contract, take with it everything
that comes with it and entails, so does not matter if
has more bargaining power
 He was sophisticated businessman, represented by
counsel, not under duress, no misrepresentation
by bk
 Express aiming test
o For intentional torts, needs intentional tortious action that is expressly aimed
there
o Causes actual harm that defendant knows is likely to be suffered in
the forum state
o Effects in the state test- all intentional torts use this
 Focal point of the story/d's actions
 Facts in the story
 Where do the sources for the story come from
 Focal point of harm
 P's residence
 P's work
Level of distribution in state
o Calder
 Difference between calder and keeton- keeton defendant had
different contact with the forum state. Calder defendant is the
writer and editor, not the magazine as a whole
 All about purposeful availment- have the contacts in cali, not
benefitting from florida
 Libel is intentional- not intending to benefit there but
intending to harm there- intentional targeted harm there
 How did the court find jurisdiction
 Effects/harm test- effects of the article- had poor effect
on her reputation there. That is the harm.
 Express aiming test- It is in cali because all of her focus is
there and the defendant’s actions

Effects test factors
 Focal point of the story/d's actions- her and her career in the
state
o Facts in the story- has to do with the state
o Where do the sources for the story come from- from the
state
 Focal point of harm- happened in the state, where her career was in
cali
o P's residence
o P's work
 Level of distribution in state- a lot, sold there and word got out
there in general
 Consider focus of the article- resources and sources from people
in cali, concerned what cali citizen was doing in calitargetting cali through article that wrote and knowing that harm
would be felt there
 Not about having control over sales in cali, but saying that
know would be bought there, and the libel would do harm there
o Intentional tort- purposeful availment. About what is in story
 Effects test factors- want to create the harm there in that state
 Focal point of the story/d's actions
o Facts in the story
o Where do the sources for the story come from
 Focal point of harm
o P's residence
o P's work
 Level of distribution in state
 Computer server example
 If business nor person lives there, but uses computers in
forum state, has to have some intent or purposeful
targeting and knowledge that servers are there to count as
personal jurisdiction
o Keeton
 Which state's substantive law gets applied, what will choice of law
spit out for purposes of statute of limitations?
 Ny citizen, little contact with nh, sues hustler magazine for libel
there
o Pers jur/purposeful availment because had direct sales in nh- contact
gives reasonable claim, don’t need to look at effects because were intentionally
selling it there, purposefully availing selves to the market
 Injury in new Hampshire/intent/tort
 Copies of it there- their intent/harm there
 Copies everywhere in usa

o Plaintiffs contact- none
 Plaintiff does not need minimal contacts because consenting with
the forum
o Reasonability- new Hampshire would want to collab with other states to
have location to do this litigation
 Plaintiff’s interests? Jury and judge/locale
 Getting witnesses, evidence to a place
o Walden
 Sued saying that police officer deprived them from funds in
nevada
 Lower court upheld, said officer expressly aimed affadavit
because knew would harm people who resided there, need more than
intent, need express aiming
 Scotus reversed
 Defendant, not third parties, must create contacts within
the state
 Only connection with nevada because resided there, not
targeting the state but the people who happened to live
there
Internet contacts
 Targeting plaintiff in forum via the internet is ok for
personal jurisdiction but needs
o Intentional injury plus min aiming at state
o Some connection to forum state and not just connection
to plaintiff who is located there- that is just
unilateral contact
o
o
o
o
o
o


Test that court used? Calder- effects test
 Was intentional tort, and any intentional tort uses effects test
About purposeful availment
Lessons
 Express aiming test cant be just that intentional tortious
conduct, but need something more
Something more has to be more than p's residence there
Specific nature and substance of the alleged contacts remain
significant
Internet based contacts do not give rise to any particularly
expansive or special minimum contact test. bottom line is still
relationship among forum and litigation is key
Stream/concept/analysis is the same here
Just putting out there and could go anywhere is not really
Purposefully availing



Yes, was intentionally targeting business, trying to steal customers,
but not targeting illinois, the only thing there is that company
was there- walden case, unilateral
Level of contact- does not matter as much as purposeful availment
 Once/isolated
 Continuous and systemic
 Sporadic
 At home/incorporated/principle place of business- automatic personal
jurisdiction
Relationship of contact to plaintiff’s claim
 Gives rise or
o Burger king- contract was the contact with Florida
 The contract gave rise to the breach of contract claim
o Look at facts and claim
 Unrelated
o This would only satisfy general jurisdiction because already at
home, does not need to be related or reasonable because how else
would we get a hold of them if not at their home?
 What does related versus gives rise mean?
o Bristol- purposeful availment but not related to because they ate
and were harmed by the pill elsewhere, defendant’s selling/research
activity in California was not related to their injury in the other
state, so cali does not have pers jur
o Reasonable but no personal jurisdiction because yes, availed selves, but claim did
not relate to the forum state
 Had purposefully availed selves in cali and ohio, lots of contacts
and activities
 Court did not like plaintiffs because had seemed to forum shop
 Not at home in cali, so now plaintiffs have to show relationship
between business's activity in cali/forum state and their claim that
happened in their own state
 Cali residents were good
 Min contacts- extensive with cali, lots of levels, gave rise because claim
and injury, related because based on action in state, and reasonable
 Why plaintiffs thought could be connected to activity in cali?/
arguments for
 Same claim, liabilities argument- problem with plavix, sell
here, admitting jur over cali residents, so why matter that
same thing just happened in diff state?
 Court was not willing to extend that to them
 Unreasonable that pick up and go from ohio to cali unless think
more likely to win in cali; no right to take advantage of cali
 Said unfair to defendant, not burden but just generally unfair
 How fix this situation?
Need to be injured in forum state where claim arises and the
defendant’s activity of selling is
 Affiliation between forum and underlying controversy, an
activity/occurrence that takes place in forum state and is
subject to the states regulation
 Primary concern is burden/unfairness on defendant and also placing
limits on state power for each other
 Cant just have walden, just being in that state, need connection
between forum and specific claims at issue
 Keeton- in state injury to residents of state, not no in state
injury
 Sotomayor dissent/alternative argument
 Said whats big deal with adding more plaintiffs
 Not really unfair
 This case does not make efficiency possible
 Each plaintiff now has to sue in diff state?
 Limits plaintiff joinder
 Or go where they are citizen and join there
 Related test
 Injury in state
 Activities for same, identical product
If show strong relationship between defendant, forum, and litigation, it is
satisfied
As long as have injury in forum and defendant has purposefully availed self
of the specific market
 By serving the same product that gave rise to the claim
And no evidence of improper forum shopping




o Ford- related to
 Plaintiffs bought car in another state and injured selves on
it in this state
 Causal connection (proximate/but for) is sufficient but not
necessary, but ford wanted them to say needed causality
 Majority's opinion on the advertisements of the same car in the stateplaintiffs could argue but didn’t
o Sotomayor says could have seen ad and bought the car in
this state, so connection between their actions within state and the
injury- but for causation
 What is connection needed between conduct and claim in the state?
 Injury has to occur in the state
 Not sale
Once injury in state, then tie injury to defendant’s conduct
in state
 Need injury in state, and activities have to involve
the identical product
 What is the conduct
 Selling, servicing, advertising same
model cars in that state
 Has to be same model, or will come out
differently
o Ford wanted to say that can sue where manufacture, design,
sell, so could do in north dakota or washington
 Said should have concern about state's sovereignty
 Court- those states wont have much interest there
because injury did not happen there- reasonability
Purposeful availment clearly met and seems that the claim and
defendant's action in forum state also connected because related to
the same identical product- met related to test, too



Property

If own property in state, treat it as and evaluate it as a contact
o Purposeful availment probably met, here,
o Question is what is the relationship between property and the claim
o Neff- Quasi in rem- property has nothing to do with claim in the
case- only attach to get jurisdiction, even if purposefully avail self to own
land in that state
o After shaffer, this does not work anymore
 Contact is the land, yes, but land is not connected to claim
 So no jurisdiction at all
 Property needs some relationship to underlying claim
o Hypos Fails mortgage, bank sues
 In rem bc dispute over property
 Do have personal jurisdiction because gives rise
 Falls on someone else's property
 Sues for injuries
 Does property give rise to the claim
 Need proximate causation
 But for, so meets ford, arises out of, still works
 If was not on property, would not have fallen
 Does not give rise, but definitely related to, some
causal link, especially after ford where not even
required
o Intl shoe governs all 3 types, if cant meet intl
shoe, no pers jur







If are related to plaintiffs claim, as should be, how related does it have
to be
o Hypo
o Hawaii
 Ad to go to hawaii, does go, gets injured in hotel
 Sues hawaii hotel in Massachusetts
 Mass have jur over hawaii hotel?
 What could be needed for related to perspective
 Relationship of contact to the claim
o Proximate causation- narrow test
o But for causation- but for seeing ad would not gone
to hotel
 Defendant’s actions in state- advertising, related to claim
of being injured in hawaii? Yes, but it were not for the
contact of advertisement in Massachusetts, the claim in
hawaii would never have happened. This works, so
related to, gave rise, and had availed self by advertising
to people in Massachusetts in general
Reasonableness/fair to bring against the claim against the defendant in this
state?- if general jurisdiction, don’t need
D's burdeno Hard to argue this now bc of technology
P's interest in adjudicating in this forum
o Are they a resident/citizen?
o Was this the location of the injury?
 Was this where the conduct/activity that gives rise to occurred?
o What law is governing in the forum?
Forum's/state’s interest in adjudicating in forum
o Wants to protect its people
Interest of other states/nations/interstate
o Is there a joinder of multiple plaintiffs or defendants?
o Location of witnesses, evidence
o Other states’ interests and arguments for why this forum is better to
adjudicate in
Specific jurisdiction
o Purposefully availed self by doing business there
o Claim arises directly from that contact of purposeful availment
o Specific personal jurisdiction- contribute towards purposeful
availment
 Advertised, marketed there
 Sent products directly there
 Made money from that transaction
 Could foresee suits there through actions





Claim arises directly from that contact
Witnesses there
CHALLENGING PERSONAL JURISDICTION UNDER RULE 12
Answer in 21 days or 60 days if waived service unless challenge personal
jurisdiction by
o Defendant filing rule 12 pre answer motion or
o Placing the defense in answer or
o Amending their answer with this defense as matter of course under 15a
Can use personal jurisdiction to collaterally attack prior judgements
PERSONAL JURISDICTION CASES
Pennoyer- either in state or in quasi/rem jurisdiction (needs land)
 court's lack of jurisdiction over neff
 Default judgement because he didn’t show up
 What was the attempt to notify him?
 Did it in oregon newspaper
 Oregon law said was enough notice to publish it in
newspaper- courts need legislation
 Did mitchell comply with provision of the statute?
 Calls for attachment of the property
 Can publish, but must attach the
property of the nonresident
 If he had attached, would that have
solved the notice problem?
 Assumption in relation to policy, legal
fictions
 Yes, because will have assumed he
would have notice of the
attachment on his land
 Law assumes that property
always in possession of the
owner, either through him or
his agent
 If notice was the only problem, what if
sent someone to cali and tell him? Would
then have personal jurisdiction?
 not basis under the code, have to
meet both const and statute
 Constitutionality and policy
 What if code allowed it?
 Still wouldn’t have personal
jurisdiction- due process



Each state has exclusive right to
people in its own state
 2 basic principles of state
sovereignty/public law
 Must be physically in
 No state can have direct
over people outside
 So oregon cant reach
out and get serve him
in cali unless it is
constitutional because
of sufficient
connections with state
Since he was in cali, the only way to get jur
is to attach the property
 Solve the notice problem
 Solve the power problem
 Attaching property from a power
standpoint, not notice
 If did not, what could happen to
the property
 neff could sell to someone
else
 So have to assert authority
over people
 In addition to serving them
Intl shoe- Modern era

International shoe- does not need land anymore, presence, or consent,
but can have minimum contacts
o Re-envisions how look at personal jurisdiction
o Facts
 Wa state sues them there for unpaid unemployment tax
 Personally serve the sales agent in wa, but don’t represent
international shoe
 Also send mail to hq in missouri
 Does wa state have authority to hail into their court?
o Intl shoe appeared specially to set aside the notice
 Appearing specially- if appear normally, would be
consenting to jurisdiction
 Show up to challenge jurisdiction of court
 They are challenging both in court adjudication and
legislative authority in court
 Do my courts and laws govern over you?

o
Trying to prove not in wa state for both rules, but we are
focused on question 1
 Does having no sales but lots of sales agent constitute
being in the state/having personal jurisdiction?
Court says
 Presence of corp merely symbolizes activity in state
 What type of presence required by court for personal
jurisdiction?
 Does not need to be physical
 Minimum contacts such that the maintenance of the
suit does not offend traditional notions of fair
play and substantial justice
 2 characteristics of the contacts/activities within
the state that court finds being minimum contacts
 Frequency/level of the contact
 Continuous and systematic vs
 One contact, isolated, random
 What trying to feel about nature of the
contact, what trying to analyze
 Relationship of activity to the claim in the
case
 Gives rise
 Completely unrelated
 If continuous and systematic and gives rise,
always yes
 If isolated and unrelated to claim, always no
 Other combinations are maybe



Policy and justification
Why is the level of activity and relation of it to the claim justify the
court asserting authority
 Privileges give you benefits, those give rise to obligations- whole
rationale
 Want obligations to align with benefits receive
 How burdensome to defend in that state if do have relations there
 Convenience to the defendant
Justice black's concurring opinion- agrees that wa state has pers jur,
concerned that this was easy case even under pennoyer- sales agents were
physically there. Don’t represent but are doing intl shoe's business
 Don’t take super easy case to change whole paradigm, bc if are, doing
so to change harder cases
 By using this case, also suggesting that wouldn’t be met under pennoyer

o
o
o
o
o
o
o
o
o

Says could be more restrictive than pennoyer
 Nature of the doctrine- vague due process standard never intended to
strip washington of right
 Term of fair play, minimum contact, etc, are uncertain, confusing
terms- giving judges lots of discretion, here
 Policy perspective- gives judges too much discretion
 Highly fact specific, could come out both ways
 Not meeting uniformity standard
 Same case could be argued both ways
 Use notes on pg 44-45
PRACTICE QUESTION
Intl shoe makes shoe heels, sells to penn company who incorporates into
their own shoes, person in Oregon injured
The contact is the intl shoe’s heel that is incorporated into the show
Questions to ask/test- min contacts?
 Related to their claim?
 Gives rise
 Frequency?
 Could say its just one shoe, but also say they sell shoes to
Oregon
 Not really systematic because no sales agents, but still have
substantial amount of shoes that are being sold there
Why care that there is an intermediary state stream of commerce- do they know it will be distributed there?
Why look at their contacts in state? to see if benefitting
 Purposeful availment
 If get benefits, can tie to obligation
So, is intl shoe benefitting from Oregon? Not directly seeking the benefits
of Oregon, but still getting profits
But didn’t seek out, so fair to make them obliged as a moral standpoint??
Acts vs expectation for purposeful availment for stream of commerce, also need to seek and
target that state
No purposeful availment
DUE PROCESS RIGHT TO COUNSEL
3 factor test the court evaluates/balances to see if there is a right to
counsel
o Private interests at stake- the more foundational/significant, the
more right
 Physical liberty or criminal leads to automatic right to counsel
 Property liberty
 Familial liberty
o
o
o
o
o Government’s interest
 Aligned with private interests?
 Economical or efficient to provide counsel in such a situation?
o Risk that private interest will be erroneously deprived if no counsel
considering
 Formality of the proceeding
 Is it evidence-based
 Adversial
 Punitive even if no physical liberty at stake?
 Nature of the substantive law- difficulty of
understanding?
 Nature of factual issues
o Hard to comprehend
o Unfair
o Technical
o Will there be expert testimony?
 Individual’s own abilities
o Educated?
o Distressed because of life situation or intimidated?
LASSITER
The court found that only met with child once, without cause, willfully left
in foster care for more than 2 years, didn’t follow with plans to make
constructive planning for future of child
Court said had sufficient time to get lawyer, but she appealed for
deprivation of due process
Private interests at stake
 Liberty Physical- not at stake here, though, or else would be automatic
 When state initiates power, then get right to counsel
 property
 Family- this one
 Right to be a parent, how important compared to everything else?
 Have due process right to childs edu, should also have to loss
of being parent to child
 Both sides agree but say not as high as physical
 Property
Government's interests
 Child's welfare
 High interest to remove him, but
 Making accurate decision presupposes this
 Social services typically supposed to let keep child
 Efficiency
 Not as big of a deal as welfare or parental right
One of lowest interests
 Both agree here
The risk the procedures will lead to erroneous deprivation of interest
 Formality of proceeding
 Adversarial?
 Punitive?
 Evidentiary rules
 Hard to know what other side will present against her because
missed hearings and no lawyer
 Nature of substantive law?
 Law here not straightforward, lots of legal terms
 Have to understand and argue
 Nature of factual issues
 Abstruse
 Technical
 Unfamiliar
 Expert testimony?
 How complex are the facts, have access to them?
 Parent's abilities
 Educated
 Life situation
 Distress
 How can you be composed here?
 Intimidation
 Inarticulate
 Confusion
Majority said could be but not here but how is this a fluctuating test?
 Declined to analyze in greater generality
 What about the procedure would change, how else would the cases
differ?
 We have an interest in uniformity and
 Doing each test itself if less efficient

o
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
When
Uses
o
o
PROCEDURE
plaintiff asks for counsel, is denied, and loses the trial
as basis for appeal claiming that
Should have been given counsel and
Previous judgement should be void for lack of due process in denying the
counsel
DUE PROCESS RIGHT TO NOTICE/SERVICE

Rule 4 or statute and constitutional due process right
o In federal court
o Waive service or serve
 4d
o What has to be sent
o How can you send it
o Reasonable time to wait after serving, usually 30
days until
 Can ask for fees and costs of serving because
did not waive right to serve, has to not have good
cause
Effect
of
waiver

o Gets 60 days to respond versus 21 days
o If fails to waive, has to cover costs and fees
unless has good cause not to
 If serving/defendant does not respond to waiver, must
o Serve personally an individual 4c, 4e
o Serve by person who is not a party, 18 years old
o Where- dwelling
 National development standard
 Place where indicia of permanence that
indicates it is likely to result in
actual service
 Takeaway
o Judicial standard/interpretation
of the term
o What looking for when evaluating
if dwelling or place of abode?
o Sufficient indication of
permanence that will be there when
served
o Purpose of rule 4- provide actual
notice to defendant
 Legal points
o Court said that can have more than
one especially in this day and age
 Not trying to find the best
or the one
 Relevant to this case- parents house can
also be one of her dwellings
 See what facts they look at here
o Amount of time that he spent,
o Furnished

o He was also present at time of
service- this fact would change
their decision, but said did not
have opinion on it yet
o Hotel room would count, not
paying, not furnishing but there
for long time, some indicia of
permanence
 "Extended time" important, could say
that longer means more indicia of
permanence
 What other facts would want to see
o Own room
o How is the room maintainedrelationship with parents and home
o Reason for visit, is it common
o Key is how long she is there
 Longer there, more likely to
find
 Leave with person of suitable age/discretion who resides
there
 State law service provisions where the court is located or
 Where service is affected
constitutional right to due process
o mullane standard
 notice has to be reasonably calculated to inform intended
parties of action and afford opportunity to present objections
 applied in cost/benefit test in light of reasonable alternative
methods used
 balance to see which is the most proper method to use
 interests of the defendant
 type of proceeding- losing house or worse, open to errors?
Need to prep
 reliability of method and
 reliability and expense of other usual methods
o green applied the mullane standard, that outweighed them following the
statute, because they did it but should not have done it yet before trying better things.
She came and said that not served with due process because of mullane standard
 Statute
 Officer must try and personally serve, but if cant find,
 May leave copy with any member of family over 16 and
 If that person is not found, can post on conspicuous place
on premises

What

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Constitutional standard/legal- mullane
 Notice reasonably calculated under circumstances to notice
and
 Afford opportunity to present their objections
 Process used must be reasonably certain to inform and
 Must not be substantially less likely to notify than other
feasibly and customary substitutes
 Officers knew would be torn down
 And also have mail service, highly reliable, could have
used that first?
 Balancing test again to see what due process requires
 Private interests at stake
o Type of proceeding- open to what kinds of errors?
 It is eviction, want to make sure that will
get it by trying other things first
 Reliability of method used under the circumstances
o Do kids take it off, know that? Yes, knew that
 Reliability and expense of other available methods
o Was this the best you could do?
o Defenses
 Even if met statute, application of the statute to me is
unconstitutional, violates due process, should throw out the verdict
 Collateral attack- void because did not give notice for first
case
o Challenges:
 Could challenge constitutionality of service even if noticed?
 No because the deal is about being notified
 Opposite with challenging under rule 4
 If didn’t do correctly, does not matter if received, it is
grounds for dismissal even if got notice
is allowed- make sure meets statute and const
Sometimes mail not sufficient, needs to be certified or else could be thrown
out
Email
o Yes, if out of country
o Can supplement with facebook
o Show reasonably calculated to give actual notice under mullane
o Use if other methods not practical
Direct message allowed, also supplemented by emails, international, don’t
know how else to find and serve in usual ways
Newspaper and posting near property sometimes insufficient because reliance
on electronics now- consider the situations at hand
On door rationale- assume that maintain superintendence of property
Both have been limited, entitled to mail in usa case
Service process- ceremonial method of right to exercise pers jur
o Only once
Need to meet statute and const.
o
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
POLICY
If don’t know proceeding against you, not fair at all because cant even show up and
defend self
More chance of accurate litigation
CHALLENGING SERVICE/PERSONAL JURISDICTION
 21 or 60 days to respond if waive- but if waive, will probably not challenge
 Raise rule 12 pre answer motion or (remember that if you do any other 12 premotion,
have to bring these up or it will be waived)
 Put it as defense in answer or
 Amend answer to have it as matter of course 15a

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VENUE
Fairness in pers jur, now focus is on being convenient for everyone involved
Personal jurisdiction decides the state
Venue decides the federal district in state
o Completely statutory 28 usc 1391, no constitutional aspect
o Options for venue 28 usc 1391:
 If all defendants are in state, pick any district where one or
more defendants reside in
 Reside definition for venue
o Individuals reside where they are domiciled/are
citizen of
o Entities- use district where are subject to personal
jurisdiction
 District where substantial part of the events gives rise to the
claim that occurred- if substa


 ntial enough, is sufficient, does not need to be the most
substantial, and does not need to relate, only give rise
 Bates- just events that gave rise to the claim
 Question- is ny district proper venue for this case
o Yes, consider the receipt of the notice itself
 Action and content of sending deemed to be
abusive under law
o Steps/test:



Always, for pers jur and venue, consider what
the claim is and
 Have to know the claim- for pers jur
(related to, gives rise) and venue because
relationship to the claim is very
important analysis
 How it relates to the defendants actions
 Has to give rise, important if the claim
is the evidence that you will use in
case
 Bates example: the letter is the
evidence in deciding if it was abusive
o Debtor harmed when receive this
notice- so the letter is
substantial and key piece of
evidence and law trying to avoid
this harm that he suffers, and he
suffered it, and happened in the state.
If didn’t happen or didn’t happen in state,
would not have injured at all
o Venue can have multiple places now could be where action occurs, where defendant
manufactures or designs are all substantial
parts that gives rise to claim
o Significant, material to the claim
o Does not have to be the most substantial, as long as
it is substantial
What
facts

o Look to elements of claim, and facts needed to prove
each of events/facts needed to prove it
 Only if no district available under 1 or 2, then use any
district where defendant is subject to personal jurisdictionPrimary motivating goal of venue statute to find district in which to sue
o Convenience, efficiency
TRANSFER- always within same system/sovereignty
If from proper venue to proper venue 28 usc 1404
o Standard
 Convenience for parties and witnesses in interest of justice
o Choice of law of original venue with case applies after the transfer
o Piper didn’t challenge, wanted transfer- change of venue from proper to
proper
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What statute used? 1404a- og venue correct, want convenience, so
cant challenge venue because technically proper
 You are judge- factors to decide proper to transfer piper from
cali to penn
 Analysis:
 Piper resident of penn- for moving to penn, saying will be
convenient at home
 Is there anything in cali? Nothing
 Easy transfer case because inconvenient for everyone,
witnesses, evidence, all in penn, defendant in penn,
plaintiff in scotland
 Standard 1404a that using for when should transfer- for the
convenience of parties and witnesses in the interest of justice,
then should transfer
If from improper venue to proper one 28 usc 1406
o Use this to dismiss or
o transfer in interest of justice to a proper venue
o same analysis
o choice of law of new venue will be applied
piper removed to federal court first so then could transfer to fed court in
another state
cannot transfer from cali state court to penn state court
FORUM NON CONVENIENS/piper
Rationale for forum non conveniens- when alternative court has authority to
take case and when trial will create oppressiveness for defendant,
inappropriate, may dismiss
when filed in proper venue but more convenient, appropriate and adequate
venue available outside of the federal system aka outside of the country
then defendant can ask to dismiss under forum non conveniens and seek to
refile in the new forum
choice of law of new forum will apply
can deny fnc if there is better venue in usa
o Have to be in venue in usa that is best venue to make the case that have to dismiss
o If transfer 1404 it earlier on, will say go to penn So get to the best place in usa, then
say there is still better forum outside of usa, seeking dismissal
test/gilbert test balances to do forum non conveniens transfer
o private and
 where the evidence and witnesses are
 burden on the defendant
 plaintiff’s interest in original or new forum
 other practical problems in litigating in the current forum
versus the new one
o public interests


state/interstate/international interests at stake
 what law will be governing?
 General fairness to court and jurors in original versus
new location
Forum non conveniens standard/rule- how decide whether to dismiss case based
on forum non conveniens
 Gilbert factors- common law
 Private and
 Access to proof
 Where is everyone, plane is there, hard to move,
some witnesses there
 Witnesses to manufacturing here
 Ability to compel witnesses
 If outside of us, not subject to jur of our courts,
hard or impossible
 Jury view of scene
 Show them in scotland easier
 Other practical issues regarding trial
 Case already in uk- joinder question, why not just
join this one with the one over there, about same
accident, could get inconsistent verdicts if have
separate judgements
 Useful to join all defendants in same lawsuit
 Public
 Localized controversies decided at home
 Problematic if keep in penn- having to apply
scottish law in us court for hartzell. Also applying
penn law based on the defendants for piper
 Forum non conveniens arguments- will be super
confusing for jury/court
 So why do diff laws apply to each defendant
 Goes back to how we got here
 Piper If file in cali, cali choice of law
applies- point of filing in cali
 Of 2 defednants, piper should get cali
because was proper jurisdiction before
transfered
 Hartzell challenged jurisdiction in
cali, so was improper
 When come to penn, penn law will
govern, penn choice of law will
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



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
govern: when transfer, use new
choice of law
 Penn choice of law spit out
scottish law
 If started in penn, would have given
scottish law, plaintiffs wanted choice
of law to spit out some us law, and it
spit out penn
Removal statute said moves it to another proper venue
State where you sue important because gives choice of law
 Want choice of law that spits out what law you want
 When you transfer, if between proper venue, choice of law
goes with
 When go improper to proper, choice of law does not go with
 Hartzell- no pers jur, not proper, so choice of law
does not come with, adopted the one that got into
Forum at home with law governing
Avoid application of foreign law
Fairness of burdening public with jury duty
Cant say better forum, let me move, and now say sol run, because
alternative
Often not required
2 factors that critical- law says fnc needs adequate alt forum
file where plaintiff can get reasonable recovery
Plaintiff chooses forum, courts like to give deference to it
Want to allow plaintiff to be master of complaint and case and
Forum non conveniens- dismisses even if have jurisdiction
 not done often because of deference given to plaintiff's
personal jurisdiction: state
venue: district
CHALLENGING VENUE
just say that’s not where the substantial events that gave rise to the claim…
Same as personal jurisdiction and service
o Must raise defense in 12 pre answer motion or
o In answer
o Or in amendment to answer in due course in 15a
SUBJECT MATTER JURISDICTION
Decides whether to file in federal or state court
now no
before even
place
choices
Main point Federal court is court of limited jurisdiction so need a basis to bring in there
Policy for this there is a constitutional requirement (which is interpreted more broadly) and also
statutory requirements
Challenges usually pursuant to the statute, not constitution
Strategic reasons to choose one state over the other why choose one over other? Turns on nature
of jury selection, judges involved, dockets, location in state, familiarity w rules of procedure,
evidence, etc
2 types of fed jur: diversity and federal question
Diversity
Policy protect against out of state bias
Rule 1332
Mas case
2 reqs at time of filing complaint: complete diversity AND more than 75k (cant be exactly)
Complete diversity
Any plaintiff cannot be citizen in same state of any defendant
 Citizenship of entity- fact based
o Individual’s citizenship:
 their physical presence in state,
 intent to remain indefinitely,
 factors that demonstrate connections w that state,
o tax,
o driver license,
o property,
o any type of connections to demonstrate that will remain there
o Corporation’s:
 Their state of incorporation and
 principle place of business
 hertz, principle place of business is: corporate headquarters- where
primary decision for corp takes place
Non incorp- all members of entity and all their citizenships
More than 75k in controversy
Good faith allegation in complaint and notion that no legal certainty that damages can’t be met rivas
o Legal certainty for damageso statutory limits on amount of damages
o if seeking type of damages and law wont allow it
 (if, say, punitive damages not allowed under the law, then cant be included in
meeting amount)
Consequence: Court may impose costs on party who filed in fed court if judgement is less
than 75k
How to meet that amount- aggregate When aggregating claims to meet the amount,
o claims against same defendant can be aggregated as long as
o represent different damages/injuries
o NOT different injuries to get same damages
o Different parties- CANNOT aggregate them.
Can count non monetary relief in this calculation?
o injunction court will value the injunction to the plaintiff, or
 determine what the cost will take for defendant to comply with the
injunction
Federal question
Policy more uniform interpretation, application, enforcement of fed laws
1331
Rule claim arises under federal law
2 legal elements of arising under the federal law
o Well plead complaint motleyo must be plaintiffs statement of claim that shows the claim is based in fed law.
o When p must raise fed issues to support well plead, then arises.
o CANNOT be federal issue raised by defendant as defense or counterclaim
o NOR by plaintiff in response to what argument defendant might raise
When federal law creates the claim, or claim is for violation of federal law or constitution, then
those clearly arise
-Grable, merrel dow
o When claim created by state but incorporates federal question 4 elements
o 1. Necessarily raises fed issue
o 2. Federal question is actually disputed
o 3. Federal question is substantial to federal government’s interest.
 How important is issue to fed gov?
 nature of issue- example: taxes very important to fed gov.
 is court interpreting law or applying it? Answer: Interpreting is more
important than applying.
 Public or private interests of parties? Note: If federal question is
incorporated in claim where there private cause of action in fed statute,
then it is more substantial than when no cause of action allowed by
federal statute
o 4. Fed courts can entertain the claim without disrupting balance of state and
federal court
 Consideration of: if let this claim in door, will likely involve many more
future cases that can use argument to get in door and flood with state
law claims not intended to be interpreted by federal court by congress?
-grable- unique, question of service for fed taxes involve property claims. Very
substantial
-merrel- violation of federal statute in negligence per se, court said then can
use any fed law in any negligence per se claim, that would flood with similar
claims, thus did not meet that element
Challenging subject matter jurisdiction any time throughout entire litigation, even at scotus, or court
of appeal.
Policy so important that lack of it might be raised by court itself
Removal and remand
1441
1446
Removal- when plaintiff files in state, can remove it to federal court? Involves 1441, 1446
 1st question- does federal court have subject matter jurisdiction over the case in first
place?
o YES, through
 if smj based on fed question,
 may be removed and
 state law claims with no jurisdiction can be remanded to state
court
 If smj based on diversity,
 must have jur under diversity,
 AND no defendant can be citizen of state where case brought
When remove to fed court, which venue?
 remove to the federal district court that embraces the state case.
 claims that arrive in fed through removal, must go there, that’s the venue provision
1446 all defendants must join in removal and
 removal must be filed in 30 days of receipt by each def of pleading showing basis for
smj

If removal based on diversity,
o cannot remove more than one year after original action
Challenging removal remand motion to challenge defendant’s removal using 1447.
 If challenge lack of subject matter jurisdiction, can be raised any time
 If on any other basis, other procedural basis,
o must file remand within 30 days of receipt of removal motion
SUPPLEMENTAL JURISDICTION UNDER SUBJECT MATTER JURISDICTION
1367 all other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy
Gibbs interprets 1367, sees what it means, says it is deriving from common nucleus of operative
fact
Purpose of supplemental jurisdiction over a claim is to get subject matter jurisdiction when there is
no independent form of subject matter jurisdiction
1. when no diversity
2. when no federal question
Can use once a case is already properly in federal court to bring in additional claims (anchor claim)
Requirement for the supplemental claim/to meet 1367/court will have authority
• That derive
• From a common nucleus of operative fact
• Arise from the same transaction or occurrence
• One fact in general- broader
• As the claim that invoked original jurisdiction (anchor claim)
• Diversity
• Cases in federal court based solely on diversity
• Cannot use supplemental jurisdiction to bring in claims
• By plaintiffs against persons made parties under
• 14- impleader
• 19- compulsory joinder
• 20- Permissive joinder
• 24- intervention
By
persons
proposed to be joined as plaintiffs under 19
•
• By persons seeking to intervene as plaintiffs under 24
• Claim brought in by a joined/co-plaintiff that
• Does not meet the 75k requirement
• Can use supplemental jurisdiction if
• Claim arises from common nucleus of operative fact from
• Claim that invoked the diversity of citizenship
• BUT
• The supplemental jurisdiction cannot be used to override the
• Complete diversity rule between co-plaintiff and defendants
•
•
•
Federal question
1367b if anchor claim rooted in diversity, then cant have supplemental jurisdiction that we
would under 1367a
Policy Purpose is not allow plaintiffs to defeat purpose of 1332, notion of complete diversity
or citizenship and mount in controversy
•
•
•
•
•
•
Note
•
•
Supplemental jurisdiction does not restrict defendants in diversity cases
So
• Nondiverse third party defendant can
• Invoke supplemental jur to
• Assert claim against plaintiff
• Even though
• Plaintiff may not then assert counterclaim against that defendant
• Under supplemental jurisdiction
if the supplemental jurisdiction would go against the diversity rules in 1332 (over 75k
and between people of different states)
then there is no supplemental jurisdiction over
• claims
• plaintiffs bring in against
• people made parties under
• 14- impleader
• 19- compulsory joinder
• 20- permissive joinder
• 24- intervention
• People propose to be joined as plaintiffs under
• 19
Wanting
to intervene as plaintiffs under 24
•
Loophole in 1367b
• Multiple plaintiffs
• joined under rule 20
• filing claims against the same defendant
• court will allow the claim under supplemental jurisdiction if
• one plaintiff meets the 75k and above but
• others do not
• reasoning- this is not exempted by 1367b
• but
• if plaintiffs are not diverse
• court has held that
• will not allow jurisdiction (will be exempt under 1367b)
• over those claims even if it is not
• expressly exempted under 1367b
• rationale
• important to maintain the diversity standard for fairness more than the
money
1367c- can choose to decline jur over supp claims (discretion)
4 instances
• The supplemental claim issues are novel or complex state law
• Want state to decide such for themselves
• Supplemental claims predominate over the anchor claim
•
• The evidence
• Damages sought, etc
• Differ
• Have the anchor claims been dismissed prior to trial?
• If yes,
• Can dismiss the supplemental claims
• Exceptional circumstances or compelling reasons
Despite these, gibbs pushes for courts to retain supplemental jurisdiction over the claims
• Policy
• Efficiency
• Fairness
• Important federal policies that are wrapped in supplemental claims even
though supplemental claims are claims under the state law
-------------------------------------------------------------------------------------------------------------------


Can bring up at any time 12h3, cannot waive by not waiving under certain time
Need subject matter over each claim and person
o With diversity, cannot piggy back off of someone else qualified, needs
independent diversity jurisdiction
Can use
o Alienage: 1332a2(non us citizen vs us state citizen) needs above 75k
 Us citizen living in london not alien because citizen of us, not the
country living in
 If have, any federal court in the United States could hear this case — in
terms of subject matter jurisdiction. Moreover, state courts have
general subject matter jurisdiction, so any state court in the United
States could hear this case — in terms of subject matter jurisdiction
o Diversity jurisdiction (make sure to determine citizenship) + amount in
controversy
 Strawbridge
 1332a
 Needs complete diversity
 Constitution allows minimum (just one) so can have statutes
that say that, but federally, need complete because of frcp
1332a
 Dc, for purposes of diversity jurisdiction, as us state
 Citizenship of
 Citizenship means domicile- true and fixed permanent home that
have intention to return to
o Us citizen not living in us state it not citizen of us state, so
no diversity of citizenship
o Only us citizen can be us state citizen
 Timing- the citizenship when claim is filed


o Once do that, can go anywhere you want
Changing
citizenship- requirements, analysis is facts based

o Picking up residence and (in worldwide, intention but
had not moved there yet, so not citizen)
o Intention to remain there
 There for school?
 Not enough to testify about intent, needs support
by objective facts
 Moving shows no intent
 burden of proof: burden of persuasion with person trying to
establish the subject matter, not the person who challenged it
o example: if person with burden has not proved, then find
no sbj because person supposed to prove smj did not
non-us
citizen is not us state citizen even if lives, so no diversity

citizenship, but instead alienage
 Individuals- mas
o
 Entities- Randazzo, hertz, Belleville
o Where incorporated
o Principle place of business 1332c1
o Can have multiple citizenships
o Randazzo
 Use terms of art that court wants Domicile does not work with court
o Hertz
 Principle place of business
 Will state consider this corp a citizen or not?
 Nerve center test: headquarters, where give
direction, where executives make decision
 Policy: efficiency, predictability,
administrability
o Belleville non corp entities
 Where the owners/partners/members are
citizens, so could be every state
 Not principle place of business or registration
Amount in controversy- has to be more than 75k, cant be exact
How calculate?
 Plaintiffs cannot add amount together
o Each individual claim in 1332 must independently meet it
o The judgement amount does not matter
 Good faith complaint amount look at complaint,
will not wait till end
o Incentives not to allege amount over (???)
 Damages asked for must be legally available
 Aggregation of separate damages that represent diff things with
one plaintiff counts
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
o Multiple complaints and one defendant
Cant add amounts from 2 diff defendants
Amount will not be made in half with 2 defendants if files jointly,
if claimed 80k, will stay 80k, not be counted as 40 for each and
thus fall under
2 diff tort claims and 2 diff theories to hold liable for same injury
for 50 and 50
o One defendant but 2 diff claims/theories
o Was injured for 50, if win one or both, still only 50k
Claims against one plaintiff and one defendant can be
aggregated, regardless of transactionally related
Seeking an injunction- court picks one of the below
o Value of injunction to plaintiff or
o Defendant’s perspective- look at cost to defendant to
comply with injunction
Mas
Rivas
o Looking at facts and complaint and allegation, plausible
that will get more than the smj diversity amount?
o Not about if it is plausible to get what we asked for
75k

Policy
 About the bias against people from the other state
o Or
o Federal question 1331- needs to also be in const and statute, decided at time
of filing of the complaint by plaintiff, no amount in controversy needed
o Well-plead & grable test for deciding under 1331
o Constitutional interpretation says as long as federal is an ingredient, will have
authority. But if under statute, will need well-plead claim test
 “Arising under” louisville and Nashville
 Mottley/well-plead complaint rule, only plaintiff can bring it up
in claim
o Claim was for breach of contract, but issues in appeal
was if the statute would apply here and whether 5th amd
might apply- seems to be issue regarding interpretation
of the federal law
o Federal law needs to be basis for plaintiff’s claim
o Court itself can bring up 12h3 at any time, it did
o The fed issues could come up in the defense… but that is
not the claim
 Policy/rationale:
 Don’t want plaintiff bringing up defenses,
that is defendant’s burden
 Can’t go around guessing what defendant
will do

o Well-plead claim: plaintiff’s statement of cause of action
shows it is based upon fed law or constitution
 Cannot be counterclaim/affirmative defense
raised by defendant arising under fed law- has to
be from plaintiff
 Declaratory judgement: defendant filing the suit
that has to do with federal question
 Look at if plaintiff were suing, what would
it be for? What would their claim be?
Evaluate that
 Also, in declaratory judgements, often
have to say what the plaintiff wants, so
makes it easy to see what plaintiff’s claim
would be
“Arising Under Federal law” grable and sons- centrality
 How central must federal question be to the claim?
 Cases that are created by state law can still have smj if arise
under fed law and meets grable test
 Each has to be met
o Federal component is substantial factor
o Does not disrupt balance of powers between state and
federal
o It is necessarily raised
o The federal issue is actually disputed
APPLICATION OF TEST
 Federal component is substantial factor
o Take it to decide substantial interest to the federal gov, not really about the parties
o Factors court takes into account
 Topic- look at importance, implications and importance to the gov (taxes,
ability to enforce people to do things VS safety of people, not really
government’s interest)
 Consider any widespread, public (always more substantial in effect) or
private impacts
 Intent to interpret vs apply- see what the law actually requires? And will also
impact everyone, so substantial interest
 Does not disrupt balance of powers between state and federal
o Congress sets limits on what should be brought to fed court using private cause of
action, but sometimes, case by case, consider to bring, anyways. Still want to
respect congress so do case by case
o Will letting one in open the floodgates for so many in similar position who are not
technically supposed to be let in?
 It is necessarily raised
o Grable example- to decide claim, have to decide the federal question to resolve the
state law question.
o only basis to argue that property is still his is if was served properly (federal
question)
o
o
o
o

this issue needs to be decided on to decide on entirety of it
VS
Merrell example- was not necessary
could have used other things besides the per se of the federal law to show
negligence. Can show negligence in other ways
 other way to argue: because it was the only allegation they brought up, have
to look at fed question to decide the negligence for plaintiffs
The federal issue is actually disputed
o Almost always met
o Are they arguing over this federal statute or is it just there to get them into fed
court?
o Grable- about if being served properly… that is a federal statute’s concern


Challenging smj
o If make direct attack on this and pers jur, cannot later also collaterally attack it
based on these
o If initially in fed, def wants it down to state, can try and dismiss or challenge
jurisdiction- 12b1
o If removed to fed (originally filed in state), def can challenge through motion to
remand to state court, 1447c
Removal/remand
o Instate defendant
 Defendant can’t remove under diversity if citizen, not just resident of
the state that the state court is located in
 Citizenship does not matter if removing for federal question
 Rationale- purpose of diversity as basis for sbj is to protect from bias…
already in home state
 theme of plaintiff supposed to be master, so limits how
defendant can get out of it
o if plaintiff removes, must be remanded because only defendant can remove
o to remove: first ask if fsmj- then, diversity or fed question?
o 1441a- district court has to embrace city where state court was
o Adding a state law claim
 1441c- Removal proper because has to sever the claims and remand the
state one back
o 1447c- instate- cant remove under diversity if citizen of state
o Joining in removal- all parties have to join/consent to remove
 But if ny citizen, cant remove, so cant join to remove 1441b2
o 1446b2c- each def gets 30 days to remove
 If one loses chance and other still has chance, the other can join under
the party who still has a chance
o Cant join amounts if 2 different theories to get the same issue because will only
win that amount even if win both
o Cant add 2 diff defendants amounts together, either
o Cant remand when start in fed court, so should use 12b to dismiss the case if
starts in fed court
o If happens under diversity originally and adds someone in same state as other
party (court has to decide if added appropriately or to screw over) then have to
remand back down
 As judge, balance equities, delay, prejudice, and ask why now adding
neal- good reason, found out had to through discovery? Importance to
case? Efficiency of combining this and a separate court where he is?
o 1446ca2- defendant has to show that there is more than 75k at issue even
though alleged only 70k
 Is she just alleging this to prevent from removing? So if in jur to permit
more than what asking and if close to amount, defendant can prove
that there can be more than 75k
o All cases must be removed within 30 days of the service of the first document that
indicates that the case is removable.



o
8a1 allege relevant facts to meet smj
how are fed courts established?
o Need constitutional and created by congress for its creation and jurisdiction
why federal court? Difference is huge
o More varied and wider jury pool- consider when factual question
o Judge has tenure, decides on proper, not politics- consider when legal question
o Different procedural law about what introduced
o There is twiqbal
o Speed of dockets
o Assigned judge who manages case entire way through
DISCOVERY
Parties provide and obtain information about their claims and defenses
2 stages to discover things
1st stage initial disclosure- 26a at or within 14 days after the parties’ 26f conference unless
different time
• both parties must disclose to each other
• any discoverable materials
• Witnesses, list of documents that
• will use to support
• claim
• or defense
nd
2 stage- request and response• parties send each other
• interrogatory and document requests,
• depose,
• seek admissions from other side
• ask for info,
• other side responds w info
Scope of discovery, 26b1
• nonprivileged matter
• if privileged, don’t need to produce that information
• is absolutely protected unless
• waived by disclosing to someone else, it becomes no longer confidential
• privileged protects the sources, not the content of the information
• privileged relationship
• attorney/client relationship elements
• Confidential communication
• between client and attorney
• acting as such
• for purpose of obtaining legal advice
• upjohn defined relationship of attorney/client
• if information is in the scope of the corporation's employee’s
duties
• and there is communication between them for legal advice
and nothing else
• procedure When assert privileged relationship or information,
• need to claim the privilege,
• give privilege log that explains the materials protecting
•
relevant
to
any
party’s
•
• claim or defense
• used to prove or disprove something that law says matters
• or the claim relies on
• united oil relevance, how used in challenging int and doc requests
• proportional to the needs of the case
• zubulake court balances the factors mentioned in 26b1
• importance of issues at stake in the action
• amount in controversy
• relative access to the information
• resources available to parties
• the importance of discover in resolving issues in the case
• to find out whether the burden/expense of proposed discovery outweighs the
likely benefit
• if it does, it is not proportional
• if it does not, it is proportional and is thus an appropriate request
• information need not be admissible to be discoverable
• hearsay not admissible, but can be discoverable- repeating what someone told you
• policy it is not reliable
• “did anyone tell you that they saw the accident”
• Getting access to hearsay info may lead to info that can be admissible, but it itself
does not need to be. Puts basic limitation on plaintiff
• 26c, additional limits on discoverable information-
•
•
•
•
•
•
•
protective orders, allows otherwise discoverable information to be protected if party
can say is necessary
reasons for issuing protective orders
• Private,
• confidential,
• trade secrets,
• embarrassing,
• harassing if has to produce.
• Oppression
• Undue burden or expense
• annoyance
Shield, coke, rivera- all info was discoverable but if disclosed, parties could be
seriously harmed outside of context of lawsuit.
Court can provide protection.
Balance test if should provide the protective order
• balance need for information by one side
• against intrusion or harm that comes from having to produce.
• Court decide if must be produced or protected
Protection will allow- what mean by protected?
• Can change the info sent,
• reduce what want,
• or try to accommodate the competing interest if possible.
Procedure
•
26b3a trial preparation materials not discoverable
Requires tangible thing prepared in anticipation of litigation by party’s representative
Hickman.
• Includes
• Tangible things/documents
• Prepared in anticipation
• Two definitions
• If information prepared because of litigation
• If information prepared primarily to assist in litigation (more
narrow)
• If it is for trial litigation,
• Trial preparation materials only discoverable if the
• Requesting party can show a substantive need for the
information
• And undue hardship to get the information from other
sources
• Sometimes considered
• Diligence in getting the information from other sources
• Of litigation
• By or for another party or its representative (another party’s attorney, consultant,
surety, etc)
•
Other tests for what counts as trial preparation
• Some courts
• Prepared for any litigation
• Other courts
• Had to have been prepared in the related litigation
• Show that case a and b are related
• Or trial preparation for the same party
26b3b mental impressions not discoverable (absolute protection)
• Concerning litigation
• If want this from of representative or attorney, it will be protected
enforcing the production of discoverable information AND sanctions if do not abide
• Washington state physicians
• 26g
• Discovery form of rule 11
• Objective like rule 11
• Procedure filing motion for sanctions on belief that violated 26g
• requires reasonable inquiry under circumstances and warrant that
discoverable first consistent by rules,
• warranted by law or non-frivolous request to change that law
• and requested for proper purpose and not to harass, delay, increase cost of
lit,
• and discovery not unreasonably burdensome given facts of case.
• If violated
• Must impose
• Appropriate sanctions unless
o To punish
o Deter
o Compensate
o Lots of discretion to see what the sanction should be
• Substantial justification for the action
• Against attorney or party but not firm
• 37 sanctions
• procedure
• 1st party files motion to
• Compel production after they already
• Conferred in good faith with the other side
nd
• 2 court fives the motion to compel
• 3rd they fail to comply with that order
• 4th court can impose just sanctions
• There is a wide range
• court can assume if someone tried to hide and now comes out, that is
proven by evidence.
• Can prohibit introduction of matters into evidence if not properly
produced.
•
•
•
•
•
•
Or can strike pleadings or other,
can dismiss or default,
or could contempt of court against party or attorney.
For violating court order compelling discovery
Against party and or order.
Must grant attorney’s fees, expenses unless substantially justified to act
this way
Procedure: how does it come to the court’s attention?
• Two different motions to have an order to compel or produce
• the requesting party files a motion under 37
• when the responding party objects to a request
• the responding party moves for a protective order under 26c
• so asks court to determine what must or not be produced
The Appellate review of discoverability motions is
• abuse of discretion.
• Gives substantial deference to trial in dealing with discovery issues
---------------------------------------------------------------------------------------------------------------------------o Discoverable- relevant, proportional, not provileged
o Policy
o Use early on to see if there are facts we agree on or likely wont be found, it should not be
tried, or throw out case altogether
o Increases chance of settlement, efficient
o Most discovery disputes are at trial because it ends with a judgement that does not end the case,
so cannot use appeal to appeal judge’s order on discovery, have to wait until the end of the case,
but at that point, other things have transpired
o Disclosure element
o Required after pleading, both parties have to exchange this info with each other, there is
no request for this
o Certain info: witnesses and documents relevant to their claim/defense that will use in
their case
o Requests
o Then, each side requests from each other any info relevant in providing or defending case,
not limited to info that want to use, and other has to respond
o If don’t want to answer question
 Assert/file one or more objections with legal basis
 Then, plaintiff has to file motion to compel court to make them respond
 But before, should try and compromise, see what’s wrong, between
counsels
 Should not get judge involved
o Can you appeal based on discovery? Only when case ended, discovery decision does not
create final decision
o Broader interpretation at discovery stage in consideration of relevancy
o Burden
o When plaintiff wants to introduce the evidence found in trial, has to prove relevant
o During discovery, defendant has to prove that the request was not relevant
o Procedure
o 2 ways discovery issues come to court
 Responding party objects, says not discoverable, and does not produce. Requesting
party files motion to compel to produce
 Protective order- responding party files. It is otherwise discoverable, but does not
want to, so asks court for protection in this circumstance
o Scope
o 26b1 4 elements that make it generally discoverable
 Nonprivileged
 Privileges are state law created in the Rules of Evidence to protect
relationships between these people
o Necessary to these relationships to have honest conversations, we
are in adversial system
 Attorney-client privilege
o They are specific, and identify relationships spousal/attorney, etc
o Document requests- if attorney sends to client, don’t have to give
that memo, but can get the info that is in it
o Has to be providing legal advice, not business advice, etc
o Can waive by telling someone else because no longer confidential
o Corporate context- who is the client for the attorney?
 If communication between attorney and employee that is
needed to give legal advice
 and it concerns a matter in the scope of employment duties,
 and it is confidential
 then that person qualifies as client of the attorney
 only protecting the source and communication, but not the facts, so if ask
in the right way, can get the info
 have to claim/assert privileges, say that wont be giving this
 use privilege logs to let other side know, and other side can use it to
challenge privilege
 what if make mistake and give the privileged doc to the other side?
 Privilege no longer governs, but should notify, destroy it and not use it
 But can of worms still open
 Wavier problem- once out, it is no longer privileged
 All are explained in the rules of evidence
 Relevant
 Tendency to be of consequence
 Necessary to prove claim or defense
 Will make claim or defense more probable
 Will it prove an element of claim, establish causation?
 Has to limit to information about liver disease, not all injuries, because that
is the argument
o Need to knowledge and causation of what suffered from for liver
disease, plaintiff suffered liver damage, question is if would know of
this injury specifically, other injuries not brought up in claim`
 Failure to warn is not a limit
o Goes to causation, maybe not knowledge
o Causing any type of injury
 Proportional
 Requesting party needs to make sure requests are proportional vs
defendant arguing it is not proportional
 need not be admissible in evidence to be discoverable
 hearsay not admissible, but can be discoverable- repeating what someone
told you
o not reliable
 “did anyone tell you that they saw the accident”
 Getting access to hearsay info may lead to info that can be admissible, but
it itself does not need to be. Puts basic limitation on plaintiff
o 26b2c, 26c, 26b3
o Limitations
 26b2c limitations
 Unreasonable cumulative/duplicative
 Other sources more convenient/less burdensome
 Had opportunity to obtain info through other means
 26c protective order provision
 Producing it would harm in some way
 One side thinks that needs it for case
o Other side can ask for protective order (would be some harm to
responding party if had to produce)
 Need good cause
o Court has to weigh using cost-benefit balance
 How importance to needs of the requesting party and how
damaging to producing party
 Can they compromise or keep the info confidential? enough
to protect from harm?

o 26b3 trial prep protects attorneys
 Work product
 Hickman
 Before case even filed, hired lawyer to interview witnesses, created
o Signed witness statements- question answers, what saw, what
happened
 Some states protect this, some don’t because not really work
product, this is objective and what would be said on the
stand
o His notes during interview
 Below is explanation for protection


Plaintiffs asked for his statements and also the notes- fyi, should have asked
for these separately
 Had to produce the documents?
o Without 26b3, would be discoverable?
o 26b1 very relevant, proportional
 they are notes, no client privilege because not
communication with client, but third party
 should be discoverable
 protective order? Does not count here
 typical ones protect interest of parties of the case
 this was about attorney’s interest
 produced in anticipation of litigation?
o Yes
o Court got around it and said need to protect this info
o Policy behind protecting attorney products in the first place
 Practical- everyone takes notes, does that mean have to give
everything?
 Get to look at attorney’s tactics, strategies, how they are
looking at things
 Unfair, being able to work in private is important
 Could force the attorney to become a witness, there will be
conflict of interest, they might decide not to represent well
 Sense of freeloading, could have gotten this info in other
ways
 Why not freeloading?
o Cant get the same testimonies as the 3 days
after one
o Parties in diff situations at diff points of time
o Money/ability/resource imbalance
 How to get exception
o It is not a privilege, which is absolutely protected
o Show really need it, important info for the case
o No other way to obtain
o Hypo- circumstance to be a reason where court might have allowed
production of signed witness statement
 If info is no longer available- witness died
 But if have freeloader problem in mind, probably would say
lazy that didn’t talk to him before he died
 Consider timeline and when he died
 Some courts will consider the diligence of the partiesnot a standard, but it is a consideration of the
rationale of the rule
Mental impression 12b3 thoughts, notes on the interviews
 Trial prep
o About anyone who is working for a party in anticipation of litigation
o If meets definition, is protected unless meets 2 requirements



Document/tangible thing
Prepared in anticipation of litigation or trial
 Factors
o Created by whom- attorney or other smaller
party?
o Timing of creation in relation to case- have to
prove was in anticipation
o Motivation for creation- 2 definitions open for
grabs
 Prepared to assist in litigation
 Would not count, bc primary
motivation is to see if should publish
 Prepared because of litigation- but-for
 Would count because trial potential
was trigger
 Hypo- hire lawyer to make report
about efficiency of going to trial
 If party wants it, will prove the harder
one, to say not work product
By party or their representative
o Proportionality
 Finds the middle off too much, inefficient info and too little sneaky info
o Challenging requests
 United oil Defendant said request was too broad, irrelevant to case because would
not help prove or disprove facts needed for the case
 Same or similar claim
o Limited to the injury in the claim, but things that would lead to
knowledge of the causation to this injury would be allowed
 Same or similar products
o Cant ask for anything that relates, needs to be relevant, cant be too
broad
 Also had a temporal limit
o Had been selling product for 50 years, cant reasonably give all that
information up even if relevant because it is burdensome
o Relates to proportionality
o *but can balance this temporal limit with relevancy
 Rivera
 Sought protective order on deposition about their immigration status
 Court gave it to them, defendants filed motion for interrogatory appeal
 Plaintiff said shouldn’t have to respond because plaintiffs
o Would be in danger personally
o Policy reason of undoc immigrants not coming forward, shouldn’t
chill meritorious claims
 Court said this info important for defendants for remedy, so at least don’t
need it now given the harm, lets wait
o Defendants said helpful now for settlement



Court said efficiency of settlement does not outweigh harm
Proof at trial could outweigh, though
Zubulake
 Wanted emails that were now on backup tapes which were expensive to
get access to
 Moved to compel them to sort through all that came up on a previous
response
 Issue about who would pay, how to share or shift the cost?
 Usual rule is that responding team has to pay to respond to the request,
and have to ask the court to shift
 Proportionality, 26b1
o Importance of the issues- gender discrimination at stake in the
action
 Weighty but not unique, so many of these out there
o Amount in controversy 1-19 mill
 How much spending for recovery compared to the award? Is
it efficient?
o Party’s relative access to relevant info
 The info was in control of the defendant
 Often goes against the responding party
o Party’s resources
 Defendant has more, but she is asking for 19m, so she
proportionally can pay for the 200k
o Importance of discovery to the case itself and resolving the issue
 Its all about discrimination, these emails could help wither
party with that question, it is highly relevant
o Burden/expense outweighs its benefit?
o sanctions
o if don’t give the requested info, can be sanctioned, but sometimes it is worth it
o 27 and 26g enforcing discovery rules trying to protect self interest
 Types of abuses
 Stonewalling- will interpret requests narrowly to assert objections that they
can beyond what is reasonable
 Overloading- either side does, requests bunch of info so they waste
resources
o Or interpret broadly to give into that they cant find anything within
the things that they send
 Evasive and misleading- lead other side to think producing what supposed
to, but don’t actually give them what they want
 Goals of sanctioning
 Deter, punish, compensate to other side if had to spend a lot, and educate
about what should be done
 Fisons
 Should not giving these 2 smoking guns be grounds for sanctions when
literally asked for it, asked for things with the ingredient which made it
“regarding,” and clear were trying to avoid it?


37- failure to make disclosure or not cooperate in discovery
o Here, no motion to compel because don’t know what missing
 26g similar to rule 11- objective test (intent does not matter)
o Sanctions mandatory if without substantial justification
o Sanctions standard: whatever is appropriate
o Not against firm, could be attorney, could be party
Sanctions
 Must do so unless substantial justification
o Attempted justifications
 Said plaintiffs limited to specific files because what they
wanted was in their wrong files
 We only have to produce what agree or ordered to produce
 This doesn’t seem right, just doesn’t make sense,
opposite to purpose of discovery
 Discovery designed so that judge does not have to
get involved, motion to compel pulls judge in, waste
of time and money
 Said not specific enough
 Said just protecting clients' interest in this adversarial
process
 But not if it requires you to violate the rules
 Amount is subjective
o Appropriate- least severe to serve goals to punish- would be a
higher amount, deter- lower amount, compensate and educate
o But
o Not so minimal that undermines purpose of discovery or that can
benefit from wrongdoing
o Factors- impact on case
 Resources wasted
 Intentional or negligent?
 Lawyers v party?
o Judges upset because want to decide merits, discovery will effect
merits, but upset because don’t like when wastes their time
o
RIGHT TO JURY/ADJUDICATION
Right to jury trial
38
Procedure
•
•
Automatically as preserved by the 7th amendment
Or have to demand it
• Timely
• Has to be 14 days after last pleading directed to the issue
• Can be in a pleading/original complaint
• Can be the plaintiff or
• defendant
-Or request right to jury by putting in original complaint as the plaintiff or the defendant
-challenge/prove that there is no right to jury- motion to strike?
Constitutional basis: 7th amd- right to jury is preserved as of rules from 1791
• automatically applies to legal claims (compensable by money damages)
• not equitable ones (nonmonetary remedies)
• if question about if entitled to jury, if no adequate action for remedy under the law as
interpreted today
• look at two factors
• whether the cause of action/claim is (STILL DO THIS ANALYSIS)
• analogous to any one of that in 1791
• legal or
 torts, contracts, property
equitable
•
 trusts
• and
• whether the remedy sought is (TURNS ON THIS)
• legal or
• equitable
equity court had jurisdiction when no adequate
remedy available as matter of law, No juries.
When Inadequate in law because what sought
was not there in courts of law
Claim party suing under not recognized
procedural inadequacy
Injunctions
Specific performance
Restitution
Trusts in the state
Back then, was one claim, def, etc
How no adequate action for remedy under law interpreted today
How determine if right to jury to hear? See if the underlying claims/rights are being infringed upon
under the constitution as of 1791
First, analyze nature of claimSecond, analyze nature of remedy- the more
-legal or
important one, ALWAYS TURNS ON THIS
-equitable?
If claim was available in 1791, look at history to
legal
equitable
see which it was
Common law- torts,
Equitable- trusts
contracts, property
IF THIS, CANNOT GET
IF THIS, CAN GET
JURY
JURY
If not in 1791 (not above), find analog
Terry looked at the relationship between the
parties, said find analog that mirrors the parties
today.
--Members suing union looked like beneficiaries
suing their trustee because relationship similar.
--thus, claim in terry was equitable but this is
not done, does not answer question just yet
Any statutory claim today that would not be
back then:
-look at what the congress intends either
explicitly or implicitly
--(focuses on how describe the remedy to be
available
--- if legal remedy, then anticipate jury,
---if equitable, then congress does not)
monetary
Restitution,
injunction, non
monetary, specific
performance
Right to jury for when there are new procedures today not available then?
• Inadequate remedy at law
• or is inadequacy from then corrected by our procedures courts?
If claim was equitable back then because of procedural reasons that are no longer applicable today,
ALLOW JURY
o Claim joinder, theaters.
• Dairy queen- sought an accounting.
• Historically accounting went to equity, but now we allow for use of masters
so jury can do accounting, so no longer reason for accounting to be
equitable, so not equitable, is legal now, also look at remedy
Right to jury for joined equitable and legal claims
• get jury for legal claims,
• court will resolve the other once jury done.
• And judge will rely on the facts as found by the jury
o If legal, get right to jury now. Ross about stock, used to be equitable, but today under 23,
it is recognized as legal, so stockholders not barred from jury based on that
• but instead still look at their claims and remedies seeking.
•
How decide Declatory judgements• Declaratory judgements themselves do not get juries, but
•
•
look at the nature of the substantive claim.
• but if make it that
• plaintiff
• suing defendant and
determine
the claim they would have had
•
• If legal with legal relief, right to jury.
• If equitable with legal relief, right to jury
• If equitable with equitable relief, no right to jury
• If legal with equitable relief, no right ro jury
jury can also try specific issue or element in case.
• juries decide issues of fact
• and judges decide questions of law.
• So, if claim right to jury for an issue, show issue of fact.
o Determine by Looking historically if juries tried these issues before.
o If yes,
 it is a constitutional right.
o But if there was no consistent treatment for juries and this issue, with no right to
jury to decide issue,
o then go to question of expertise of either trier
 which one by considering
 better decision by looking at expertise.
 Judges interpretive.
 Juries designed
 to determine credibility, community standards.
Judicial control over verdict
Judges practice power over juries through
o summary judgement,
o jmol
o rjmol
o new trial
brought before trial
Summary judgement 56
• court resolves claims
• on the merits
• without trial
• Procedure Any time up until 30 days after close of all discovery.
• Moving party• show no genuine dispute as to material fact, moving party entitled to
judgement as matter of law.
• Genuine dispute• cites evidence to say
• it does not establish the absence or presence of a genuine dispute or
• party cannot produce admissible evidence to support the fact
•
•
Compare direct and inferential evidence, not just conclusory
information.
• Court must draw all reasonable inferences in favor of the non
moving party
Must
take
burden of persuasion into account. Anderson.
•
• Initial burden of production.
• If party with this,
• must intro admissible evidence
• and establish absence of material dispute.
• party without burden,
• can negate the issue,
• show no genuine dispute
• and negate the element or point to other sides
evidence
• and say insufficient admissible evidence to
support non moving partys case.
If
burden
met under 56, burden moves to non moving,
•
they produce evidence to support their side of story.
• Any of evidence produced in sjm must be admissible in
court
• Judge may not
• assess credibility or
• weigh evidence
• unless evidence on record that blatantly contradicts one party’s
evidence- cobolt, scott.
Material fact defined:
• fact that case will turn on
• Appellate review standard is de novo. Reviews summary judgement questions de novo
because matter of law, person entitled to it, pure legal issues.
Post trial
Judgement as matter of law 50
• Procedure
• can file after trial has begin
• after the non-moving party has been heard and
•
•
• before jury submission
• If file jmol correctly,
• moving party can file rjmol
• if jmol is denied before it goes to jury
has
to include
•
• the judgement sought and
• the law and facts that entitle the movant to the judgement
Standard no legally sufficient evidentiary basis for a reasonable jury to find for the non moving
party.
• Lavender, reed
• Note: standard identical to summary judgement.
• Direct
• Judge must accept all evidence favoring non moving party unless blatantly
contradicted, cannot weigh nor assess the credibility
• Circumstantial evidence
• Can inferences reasonably be drawn?
• Need enough evidence to draw reasonable inferences
Renewed judgement as matter of law
• Renew jmol within 28 days after jury returns their verdict/entry of judgement
•
Appellate standard for review de novo. If party appeals on denial of these, will do de novo review
New trial 59, dadurian
• Procedure- motion 28 days after judgement returned.
• Court can grant new trial sua sponte- when want.
• If it is the party moving,
• have to combine with rjmol if plan to bring both,
• trial judge has to decide both at same time.
• If give new trial, could be conditional based on decision on jmol.
• Determine if new trial should be granted if the judgement is later vacated or
reversed
o Court has to state reasons for conditionally granting or denying the motion
for a new trial
• Standard• court may grant for any reason where had been granted before by law.
• verdict against clear weight of the evidence, seriously erroneous
• the damages are excessive
• the trial was unfair or
• new evidence within 28 days
• prejudicial error occurred
• Flawed errors, misconduct, flawed procedures, new evidence within 28 days
o Or flawed verdict. Verdict itself flawed.
• In new trial, Court may consider
o character,
o complexity,
o credibility of evidence, may be weighed against other evidence.
If court thinks that jury decided correctly for liability but
Awarded
• Excessive verdicts- shocks the conscious
• Remittitur- grant new trial unless party accepts lower standard.
• Here, appellate review is abuse of discretion or clearly erroneous.
• Additur is when the amount is too small, prejudice or mistake influenced it
• Unconstitutional for new trial so not in federal courts
•
ERIE/REA/RDA
Federal court in diversity case must apply state substantive law (defines rights of parties) and
federal procedural law (governs manner and means of enforcing those rights)
st
1 question• is there a federal law
• or frcp
• on point
• that governs or controls state law issue,
• define what the issue is
• look at what the state law provides, try and define that issue
• purpose, intent of law?
• The approach the law takes
• Gasperini, different approaches and conclusions to what the law was
talking about
• Then identify the frcp or statute that might govern
• How broad or narrow to interpret it to find if it governs the issue that was
defined above
• Example walker, ragan- rule 3 defines when case commences at time of
filing, court said but this rule didn’t govern this for tolling of statute of
limitations
o If this is issue of state law, then this doesn’t govern it
• If there is a federal law or frcp the governs or controls the state law issue
• DO REA analysis
• Is the thing valid?
• Yes, apply it
• Valid test
• Constitutional?
• Test for constitutional
• Is it arguably procedural?
 Governs the manner and means of enforcing
right, useful for manner and means of
enforcing right.
 Useful for admin purpose,
 promote our goals of efficiency and fairness,
finality, notice.

•
•
•
•
Note, Any frcp, statute out of 28 will be
arguably procedural
If constitutional and statute, apply
If const and frcp, see if valid under
• 2 step
• 1. is it a rule of procedure?
 Already above.
 If arguably procedural, then yes
• 2. not more than incidentally abridging or
modify substantive right.
 Argue that even if procedural, is
not abridging substantive right in
that even if it might, it is
accidentally doing so and is still
valid and will apply the federal rule
or statute
If there is NOT a federal law or frcp that governs or controls the state law issue
Do RDA analysis
 RDA focuses on difference in applying state and federal law in same state to see if violates
principles
 If so, will apply state law
 Steps
1. is state law bound up in substantive right and obligation of parties.
-Is law substantive one that effects element of claim as it did in Erie.
• If yes, apply state law.
• If no, go to twin aims of erie
• Twin aims of erie if either violated, apply state law
• If twin aims not violated, apply federal law because no need to add state law
• Will having diff laws in state and fed court
• either promote forum shopping
• Forum shopping analysis• how important is issue to parties,
• how diff are 2 laws between the courts
• in that incentivize picking one court to other
• or result in the inequal admin of the courts?
• Modified outcome determinative test• will a difference between laws substantially effect
outcome of case- analyze prospectively.
• Note there is always difference in two laws, so don’t
presume that diff leads to the twin aims.
• Still consider the 2 questions. If either met, it violates
twin aims, we would want to promote state law there.
•
• If no, fed governs
• If yes, next question
• However, next question
If there is an overriding fed interest that goes to essential characteristic of
court, that outweighs twin aims
• Essential characteristics Court wanting to distribute decision between
judge and jury, trial and app, or defined scope of judgements.
• If think essential, apply fed law.
• If not, apply state law
Claim and issue preclusion
Prevents relitigation of claims and issues after judgement
Basis Rooted in
• full faith and credit clause• federalism/what preclusion doctrine governs?
• second case has to give same preclusive effect to judgment as first court did, so use
preclusion doctrine of first court system (federal or state) unless
• First court was fed court sitting in diversity,
• Then use federal law
• Which will incorporate state forum doctrine
• So use law of state where court sits
Claim preclusion
Prevents relitigation of claims that were or could have been litigated in prior actions
Cant assert the same cause of action in a later suit
•
1st element
• Parties in case 2 must be
• The same parties
• Or parties in privity
• Substantial, legal relationship, or statute that defines it
• Guardian, ward, trustee, beneficiary, class representation, class
• If a party is represented by a non party
• Will be bound
• Non party to the case might also be bound
• Through contract
• Had active control of case in case 1 when was not a party
• In the same configuration
• Brought by same person against the other as in case 1
• As those in case 1
• Procedure
• Who can preclude a party?
• Person who was a claimant in case 1
•
2nd element
•
•
• had to be same claim.
• Diff tests. Carter.
• Fed- fed doctrine• same transaction?
• Can interpret transaction narrowly or broadly
• Wrongful acts• defendant’s wrongful act or
Plaintiff’s
Primary rights
•
• The rights that were violated
rd
3 element
• Judgement must be
• Valid from case 1• court had jurisdiction over claim.
Final•
• same definition as when can go ahead and appeal- when it is completely
over
• If case 1 is on appeal when 2 is filed and pending, still deemed final for
doctrines
• On merits• all judgement for plaintiffs are on merits.
• Dismissals against plaintiff, look at rule 41b. are on merits
• For plaintiff failing to prosecute
• Comply with rules, court order
• Defendant moving to dismiss the claim
• And any other dismissal
• Except (not on merits)
• Lack of jurisdiction
• Improper venue
• Failure to join a party 19
• Practical explanation for 41b, if not dismissed early on on procedural
grounds, plaintiff had opportunity to get to merits of case, then deemed on
merits unless court says otherwise
• Dismiss without prejudice not on merits
• If can fix it, fix it
• Dismiss with prejudice on merits
• If cant fix it, it is done
• Default unless stated otherwise
Exceptions
• If agreement to be not bound by parties
• First court reserved right to bring second case
• Claimant unable to assert in prior case
• Smj
• Joinder limits
• It would be inconsistent with fair and equitable implementation of statutory or
constitutional scheme or sense of scheme that should permit splitting of claim
• There was a continuing wrong- trespass claim not ripe at time of the first judgement
• Extraordinary circumstance
• Not aware of injury when brought case 1
• Note Only bring these exceptions if these are suggested, see if applies
Issue preclusion
Prohibits the relitigation of specific issues of fact or law that have been litigated and determined in
prior actions
More narrow than claim preclusion (can get issue thrown out versus case)
• 1st element:
• identical issue of law or fact as in the first case
• 2nd- issue litigated.
• If element of claim,
• went to trial, litigated.
• If element of defense,
• have to know if raised as defense below
• and was litigated
rd
• 3 issue had to have been decided,
• know how trier decided.
• Problems arise when multiple grounds for decision and general from jury
• Might not know their reasoning or
• Decision on the specifics
th- issue necessary to judgement.
4
•
• Rehabs.
• Test by holding everything same, alter result on issue in first case,
• see if judgement on case changed is decision on issue changed.
• If so, necessary to judgement
th
• 5 judgement was valid, final, on merits
• Valid from case 1• court had jurisdiction over claim.
• Final• same definition as when can go ahead and appeal- when it is completely over
• If case 1 is on appeal when 2 is filed and pending, still deemed final for
doctrines
• On merits• all judgement for plaintiffs are on merits.
• Dismissals against plaintiff, look at rule 41b. are on merits
 For plaintiff failing to prosecute
 Comply with rules, court order
 Defendant moving to dismiss the claim
 And any other dismissal
o Except (not on merits)
 Lack of jurisdiction
 Improper venue
 Failure to join a party 19
•
Practical explanation for 41b, if not dismissed early on on procedural grounds,
plaintiff had opportunity to get to merits of case, then deemed on merits
unless court says otherwise
• Dismiss without prejudice not on merits
 If can fix it, fix it
• Dismiss with prejudice on merits
 If cant fix it, it is done
 Default unless stated otherwise
th
• 6 parties- in fed court, no longer requirement of mutuality (had to have been party in the
first case to bring it up)
• With respect to parties being bound in case 2, must have been parties or privity in case
2.
• But those wanting to assert issue preclusion, anyone can
• Non party/mutual defensive use of issue preclusion always allowed.
• No exceptions to that use.
• Non mutual offensive issue preclusion- parklane.
• 4 exceptions where should not apply- use discretion
• Wait and see plaintiff
• Issues where had no incentive to fully litigate in case 1
• Inconsistent prior judgements or
• Def in case 2 has procedural opportunity not available in first suit to have sub
effect on outcome and det of issue
• General exceptions to issue preclusion• did party have opportunity for appellate review in case 1.
• If not, not bound
• Interim change in law, issue is one of law,
• don’t bind
Verify
if burden of proof works.
•
• Procedural opportunities in case 2 not in case 1 that might preclude issue preclusion
• Not having incentive to vigilant litigation in case 1, should not bind in case 2
•
•
•
Joinder
Counterclaim
• Claim by a defendant against a plaintiff
Crossclaim
• Claim by one defendant against another or
• Claim by one plaintiff against another
Third party claim
• Claim for indemnification
• By defending party
• Against a third party
Policy
 fairness, accuracy, efficiency.
•
Want to avoid potential prejudice to multiple parties in case and/or creating complicated
cases to confuse jury and other issues
•
18a- claim
• if party has claim against another,
• they may join any and all other claims have against that party.
• No limitations once have claim against party, can join any and all against other party
20
parties
permissive joinder of plaintiffs or def, same thing.
•
• Requires 2 things
• Claims by/against same plaintiffs/defendants
• must arise out of same or series of transactions
• transaction- narrow or broadly defined
• consider
• function of plaintiff’s injury or
• defendant’s conduct
• overlap of evidence
• logical relationship of claim
• Marsh and statute of limitations, rule 15c
• and
• Common question of law or fact with respect to the multiple claims
Defendants• when can def join claims
• can join 2 types of claims
• counterclaims under 13
• 13a- compulsory.
• Must bring compulsory counterclaims
• against plaintiff
• or lose opportunity to file in separate case.
• claims Against plaintiff
• that arise out of same transaction
• subject matter of plaintiffs claim against them
• 13b- permissive• all other claims
• claims not arising out of same transaction,
• so defendant may can join any and all against plaintiff.
•
•
•
•
•
Crossclaims. Plaintiffs can too against other plaintiffs, 13g
• Must arise same trans
• That is subject matter of
• original claim in case
• or counter claim
Defendant join parties 13h
• def may add party
•
•
•
•
with respect to
their counterclaim or crossclaim
if that additional party would meet rule 20.
Claim against new 3rd party would arise from
• Same transaction or series as their counterclaim or crossclaim
• and involve common question of law and fact with respect to defendant’s cross
claim or counterclaim
• If def does not have cc or cc,
• only other way to add party is impleader/14.
• Procedure Time- add 14 days after service of answer.
• Longer, need leave of court to add impleader under 14
Impleader claim 14 needs to be derivative claim
• Contribution or indemnification claim
• Third party defendant responsible to defendant to offset whatever liability defendant
is liable for to the plaintiff
• Marckvicka
• Once third party defendant is in,
• Look to 14
• Can use 13 against original defendant
• Can bring claims against plaintiff if they
• Arise out of the same transaction as
• The original claim
Plaintiff
can
assert against 3rd party if arises from the same transaction of original
•
claim.
• 14- allows for same set of rules for 3rd party as any other party
42- judge discretion for managing trial
20b- allows judge to separate parties for trial.
• Policy Convenience, avoid prejudice, efficiency
42b also allows judge to separate claims for trial, for conv, prej, efficiency
42a- judge can consolidate cases or consolidate claims and parties for trial purposes as long as
common question of law or fact
Challenging joinder- rule 21.
• Motion to sever,
• Not dismiss.
• If improper joinder, misjoinder of claims or parties,
• motion to sever claim or party
On exam- do complete anal of all relevant elements, address each element sep. policy- bring in to use
in conclusion. Same trans? 2 good competing if does or no, use policy to see which arg would best
promote our policy goals
Independent od anal if arises. To see which better, use issues of policy
Need a conclusion?