CIV PRO OUTLINE
1. Procedure and the System
A. Procedure as a Value in Itself
- Carey v. Piphus- 1978
- Qualified Immunity protects state actors from being held liable as long as they were
acting in good faith. The “Stripping Doctrine” strips the state of its immunity and
allows state actors to be sued in federal court.
- Denial of due process allows for compensatory damages under § 1983, but plaintiff
must prove damages or they will only be awarded nominally as a symbol of the
importance of procedural due process.
B. Our Civil Jury Trial
- Lavender v. Kurn- 1946
- The only circumstance in which a jury’s verdict should be reversed is if there were a
complete absence of probative facts to support the verdict; the jury is free to discard
or disbelieve whatever facts are inconsistent with its conclusion.
- Problem 1-A
- Savings Clause says a compliance with a standard will not exempt you from liability
under common law. This contradicts (seemingly) with the Preemption Clause which
says that contradicting federal law wins out over state law. You might argue that
Congress values the savings clause more than the preemption clause, because they
want plaintiffs to be able to recover. Say the standards are a floor not a ceiling.
C. A New Development- Managerial Judging
- Malone v. U.S.P.S.- 1988
- An attorney who believes a court order is erroneous is not relieved of the duty to
obey it, and there is no recourse for the unduly burdensome order.
- It is appropriate to overturn a dismissal sanction only if the court finds a definite and
firm conviction that it was clearly outside the acceptable range of sanctions. Further,
in egregious circumstances of purposeful and defiant noncompliance with a court
order, it is unnecessary for a court to discuss alternative sanctions to dismissal before
issuing a dismissal order.
D. Provisional Remedies
- In Sniadach and Fuentes, the Supreme Court decided that it is not permissible to
seize property without notice and a hearing. These cases were a revolution in the law
of procedure. Prior to these cases, plaintiffs could to a great extent request courts to
seize or freeze defendants’ assets. In Sniadach, the Court held that garnishment of
wages could drive a person to the wall.
- In Mitchell, the Court went the opposite direction, approving a statute authorizing
seizure of possessions without prior notice or a hearing.
- In North Georgia Finishing, the Court struck down a wage garnishment issued by a
clerk, noting that the case turned on the fact that the order was not issued by a judge.
- Today these pretrial seizures are rare, although car payments are an exception to this
standard, wherein a creditor can repossess a car when a borrower has failed to
continue making the required payments.
- Connecticut v. Doehr- 1991
- A statute that authorizes prejudgment attachment of real estate without prior notice
or hearing, without a showing of extraordinary circumstances, and without a
requirement that the person seeking the attachment post a bond, violates the Due
Process Clause of the Fourteenth Amendment.
- Court moves to a cost benefit analysis in determining whether it is proper to attach
property: (Probability ∏ is right)(Economic value to the ∏) > (Probability ∏ is
wrong)(Economic value to the ∆)  (.6)(75,000) = $45k < (.4)(120,000) = $48 k.
2. Personal Jurisdiction: The Geographic Reach of Authority
A. Traditional Theory Arises: Territoriality and Power- The Original Idea: Presence of
Person or Property
- Pennoyer v. Neff- 1877
- No State can exercise direct judicial jurisdiction and authority over persons or
property without its territory. Jurisdiction is predicated on the presence of property
or the presence of person and has to be established at the outset of the case. It is
both necessary and sufficient to have either the property or presence of the party.
- Due process of law would require appearance or personal service before the
defendant would be personally bound by any judgment rendered.
- Jurisdiction may rest on consent where a party appears and consents to authority.
- Harris v. Balk- 1905
- Held the judgment against Harris in Maryland was a valid judgment because the
court had jurisdiction over the garnishee by personal service of process within the
state of Maryland.
- The obligation of the debtor to pay his debts clings to and accompanies him
wherever he goes. He is as much bound to pay his debt in a foreign state as in the
U.S. In addition, it ought to be and it is the object of the courts to prevent the
payment of any debt twice over.
- The garnishee is obligated to tell his debtor about the claim from another party
- Biggest difference between Pennoyer and Harris is Pennoyer is dealing with
REAL Property v. Harris dealing with INCHOATE (Not Fixed) Property
where the debt clings to the debtor and goes with him where he goes. So
Harris expands on Pennoyer’s requirement of presence of property by saying
it may be inchoate property and need not be actual, real property.
- In Personam Jurisdiction is jurisdiction without limits. Anyone can sue a person where
they live and where they are physically present- binds the ∆ personally.
- In Rem Jurisdiction is used to determine the rights of all persons who come before the
court to claim an interest in the property. There are two types:
a. Quasi In Rem Type 1: The property itself is the subject of the suit (the whole focus
of the dispute is the title or rights of the property itself.
b. Quasi In Rem Type 2: The property is merely a hook with which to gain
jurisdiction, where a claimant invokes the judicial process to seize property at the
outset of a case asserting that the owner owed him money.
- Problem 2-A
- Judges are typically not comfortable with this type of attempt to gain jurisdiction
(serving someone on their flight in the airspace of the forum state.
B. The Idea Modified: Cars and Companies Stretch Theory
- Hess v. Pawloski- 1927
- ∆s may appear specially in order to move for dismissal for lack of jurisdiction
without subjecting themselves to jurisdiction with their presence in the state.
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Limited appearance allows defendants of a quasi in rem type 2 case to appear just to
defend the title of their property and nothing can be lost except property ownership.
- The court upholds the fiction of “implied consent” and rules that Massachusets
Non-resident Motorist Statute does not violate the due process clause of the
fourteenth amendment. Service of Process is still completed by reliable means and
defendants are receiving actual notice, and a state has the power to regulate the use
of its highways by residents & non-residents alike.
C. Modern Theory Arrives: Fairness and Contacts
- International Shoe v. Washington- 1945
- In the setting of jurisdiction over a corporate defendant, both “presence” and
“consent” turned on whether a corporation was “doing business” in a state.
- MINIMUM CONTACTS IS BORN out of a need to protect the public from
certain dangers posed by commercial activities. Corporations have no physical
presence, so courts look at the connection between ∆ and the forum state (the ∆
benefits from the laws of the state that stop thieves, the market in which to sell their
products, streets, police, banks, infrastructure, home base for employees, etc.).
- Company had employees who lived in WA, and WA was suing the company for
unpaid contributions to the state’s unemployment compensation fund- which would
directly benefit the employees of the company who were living in WA, therefore the
company’s minimum contacts were directly related to the basis of the suit.
- “Presence” can be manifested only by activities carried out on the company’s behalf
by those who are authorized to act for it. Presence has never been questioned when
those activities both were continuous and systematic AND gave rise to the suit.
Sometimes, continuous corporate operations have been so substantial and of such a
nature as to justify suit against it on causes of action arising from dealings entirely
distinct from those activities.
- McGee v. International Life Insurance Co.- 1957
- McGee expands on International Shoe by saying the Minimum Contacts requirement
may be satisfied by mail. The insurance company mailed the contract to the decedent
in California, and the decedent mailed his premium payments to the company from
California, and was a resident of California when he died. The state knew he was a
California resident and chose to issue a reinsurance certificate when they took over
the original issuing company. The company “PURPOSEFULLY AVAILED” itself.
- Because the state has a duty to the interests of its residents, it can exercise authority
over those who purposefully avail themselves of the state by reaching in to form
contracts with the state’s citizens, so the state has an interest in upholding those.
- Hanson v. Denckla- 1958
- Because the Trust Company simply continued to do Donner’s business, but never
reached out to her once she moved to Florida, the court says the Trust Company
never purposefully availed itself of the privilege of conducting activities within
Florida, so a Florida court can have no jurisdiction over the company just because
one of its beneficiaries lived there, because the beneficiary did not act on behalf of
the company with any authority to do so.
- Gray v. Standard American Radiator & Standard Sanitary Corp.- 1961
- Courts move away from the requirement of service of process within the state to a
standard of reasonable notice and an opportunity to be heard.
- If a corporation elects to sell its products for use in another state, it is not unjust to
hold it answerable there for any damage caused by defects in those products, because
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the court says the company is benefitting indirectly by the market for valve consumer
that must be inherent in the forum state if at least this one valve was found there. In
circumstances such as this case, the place of injury provides the most convenient
forum for trial, because that is where most of the witnesses would be found.
THIS CASE HELPS BRING ABOUT THE COMING OF LONG ARM
STATUTES, by which a state may claim authority over any person committing
certain acts or certain results within that state in the interest of protecting its citizens.
For Instance, Colorado’s long arm statute permits jurisdiction over anyone who: (1)
transacts any business within the state, (2) commits a tortious act within the state, (3)
owns or possesses any real property situated in the state, (4) contracts to insure any
person or property located within the state at the time of contracting, (5) maintains a
matrimonial domicile within the state by one party of the marriage remaining in the
state without interruption (state may settle claims for divorce, child support,
separation, etc.), (6) has sex within the state where that sex produces a child and
plaintiff seeks to: determine parentage, or sue for child support, and (7) enter into an
agreement that stipulates arbitration or dispute resolution within the agreement.
A state’s long arm statute may not reach beyond the minimum contacts threshold, as
it must still satisfy the Constitutions requirement of Due Process.
This case complicates the past cases, by minimizing the importance of purposeful
availment. Titan Valves did not pursue the market in Illinois. They merely sold their
valves to manufacturers in Pennsylvania, who in turned sold the product to
customers in Illinois. Isnt it not enough to simply put your product into the stream
of commerce? Dont we require some minimum, purposeful contacts? If a long arm
statute requires minimum contacts to make it constitutional, then the long arm
statute should not be able to supplement the lack of minimal contacts. How do we
resolve this paradox?
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In Colorado’s Longarm Statute, is the requirement for transaction of business within
the state specifically limited to the transaction of business WITH the plaintiff for the
Good out of which the claim arises, or may it be any transaction of any business.
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Yes, the business must be done with the plaintiff to get jurisdiction from this part of
the statute, otherwise, you would use minimum contacts to get them.
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Cannington v. Cannington- 1999
In Personam Jurisdiction is not without limits, and it may be denied if the defendant
was in the forum state because of some fraud or trickery in inducement by the
plaintiff to get defendant’s presence in the forum state. In Cannington, In Personam
Jurisdiction was maintained, because testimony proved that defendant would have
been in Virginia even without any inducement by Plaintiff, and Plaintiff merely used
his knowledge and information to his advantage in serving her in person.
- Other limitations on In Personam Jurisdiction include when the Defendant comes to
the forum state to testify or defend themselves in another ongoing law suit.
D. Evolution of Modern Theory (Interests and Policies)
- Shaffer v. Heitner- 1977
- This case kills Quasi In Rem Type 2 Jurisdiction- RIP type 2- and in effect over rules
both Pennoyer v. Neff and Harris v. Balk by stating that the traditional notions of
fair play and substantial justice (the relationship between the defendant, the forum
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state, and the litigation, rather than the mere sovereignty of the state over certain
property wholly unrelated to the litigation) should now be considered the standard
for In Rem suits as well as In Personam suits since the establishment of International
Shoe
Presence of property should only effect jurisdiction in that it is likely to help
establish minimum contacts with the state.
Minimum contacts is now the standard all around, not just with corporate in
personam suits, and it may not be proven by mere possession of property in the
forum when that property is unrelated to the basis for the claim.
Problem 2-B
This problem serves to demonstrate that Quasi In Rem Type 1 is still very much in
tact. Even though Ms. Carter has NO contacts with PA, she has real property there,
and that property IS the basis for this suit, so the plaintiff has unlimited jurisdiction
and can sue her for full damages, not just property value.
Crane owner example in class where the man falls behind on payments for his crane
and takes it from CO to his cabin in WY to keep it out of the clutches of
repossessers. The bank who loaned him the money for the crane can go to WY and
get a prejudgment attachment on the crane by serving him in personam. Then sue
him in CO on the underlying debt. Then take the CO judgment to WY and have the
courts attach the crane (Full Faith and Credit).
World-Wide Volkswagen Corp. v. Woodson- 1980
The purpose of the minimum contacts standard is two-fold: (1) it protects
defendants against the burdens of litigating in a distant and inconvenient forum, and
(2) It acts to ensure that the States through their courts, do not reach out beyond the
limits imposed on them by their status as coequal sovereigns in a federal system.
The first of those two purposes is determined by reasonableness. The jurisdiction
must fall within the traditional notions of fair play and substantial justice which may
be determined by seeing that the relationship between the defendant and the forum
must be such that it is “reasonable” to require the corporation to defend the
particular suit which is brought there. HOWEVER, the court notes that implicit in
the emphasis on reasonableness is the understanding that it will be considered in
light of other relevant factors. So, while the (1) burden on the defendant is the
primary concern, four other factors are weighed when making the consideration,
such as: (2) the forum states interest in adjudicating the dispute, (3) the plaintiff’s
interest in obtaining convenient and effective relief when that interest is not
adequately protected by the plaintiffs power to choose the forum, (4) the interstate
judicial system’s interest in obtaining the most efficient resolution of controversies,
and (5)the shared interest of the several states in furthering fundamental substantive
policies.
The second of those two purposes is ingrained in the Commerce Clause of the
Constitution. Thus, the reasonableness of asserting jurisdiction over the defendant
must be assessed in the context of our federal system of government.
Opposition argues that foreseeability should factor in here against World-Wide,
because they should have foreseen a car, which is made to travel from state to state,
would wind up in a different state, to which they might be called to answer for the
product. However, the court says they focus on the wrong type of foreseeability. The
foreseeability that is essential to minimum contacts is the foreseeability that based on
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the defendant’s conduct and connection to the forum state, being such, that he could
reasonably anticipate being haled into court there.
Minimum requirements in the concept of fair play and substantial justice may defeat
the reasonableness of jurisdiction even if the defendant has purposefully engaged in
forum activities (minimum contacts not always determinative).
So why is it that the court says Gray can be distinguished from World-Wide? Because both cases
seem to be based around the stream of commerce as the only contact with the forum state, and the two
cases reached entirely different results. World-Wide came after Gray so I might be tempted to
conclude that W-W overturned Gray, but the court specifically mentions Gray in a way that seems
to say “this case is somehow distinguishable from the case at hand and we don’t see them as
comparable, such that the results should turn out the same.”
Asahi Metal Industry Co. v. Superior Court- 1987
The substantial connection between the defendant and the forum state necessary for
a finding of minimum contacts must come about by an action of the defendant
purposefully directed toward the forum state. Additional conduct of the
defendant may indicate an intent or purpose to serve the market in the forum state,
for ex: designing the product for the market in the forum state, advertising in the
forum state, establishing channels for providing regular advice to customers in the
forum state, or marketing the product through a distributor who has agreed to serve
as the sales agent in the forum state.
Merely placing a product into the stream of commerce with an expectation that it
will wind up in the forum state is not enough to establish minimum contacts and it is
not enough to say defendant purposefully directed an action toward the forum state.
Furthermore, the court considers the five factors presented in World-Wide, and they
mostly all cut in the same direction. They say you should look for minimum contacts
first, and then you look at the five factors to determine if minimum contacts is
enough to claim jurisdiction.
Two part inquiry: (1) Does the defendant have sufficient/minimum contacts with
the forum? (2) Is the exercise of jurisdiction, based on such contacts, reasonable
under the circumstances? This two-part test is appropriate in specific jurisdiction
cases, but not in general jurisdiction cases.
J. McIntyre Machinery, LTD. v. Nicastro- 2011
New emphasis to idea of consent as a basis for jurisdiction over corporations.
It is the defendant’s actions, not his expectations that empower a states court to
subject him to judgment.
Because jurisdiction is a question of authority, it must be evaluated under a forum by
forum or sovereign by sovereign analysis. Additionally, because the U.S.A. is its own
distinct sovereign, a defendant may be subject to the jurisdiction of the courts of the
United States, but not of any particular state.
An intent to serve the U.S. market may subject a defendant to the courts of the
United States, but it does not prove that the defendant purposefully availed itself of
any one particular state, and thus is not subject to the jurisdiction of any particular
state not intentionally sought after by the defendant.
CLARIFIES THE CONFUSION BROUGHT ON BY ASAHI. STREAM OF
COMMERCE IS NOT ENOUGH WITHOUT PURPOSEFUL AVAILMENT.
Minimum contacts in due process, is about FEDERALISM not JUST fairness.
Defendant must have an intentional frame of mind, intending to reach your state, to
show minimum contacts.
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Ginsburg Dissents saying it is enough that the defendant directed their actions
toward the United States market as a whole and the product ended up in the forum
state as a result of that. Breyer and Alitos concurrences say that Ginsburg’s standard
would allow jurisdiction too often when unjustified and the plurality’s standard
would restrict jurisdiction too often when it should be allowed.
E. Specific Jurisdiction Expands
- Burger King v. Rudzewicz- 1985
- Where a defendant has “deliberately” created “continuing obligations” between
himself and the residents of the forum, he has availed himself of the privilege of
conducting business there and it is not unreasonable to require him to submit to the
burdens of litigation in that forum.
- Choice of law analysis focuses on all aspects of a transaction, and not simply the
defendants conduct (as in a minimum contacts analysis).
- The lone contract of a promise to deliver something to a state is enough to give the
state jurisdiction over disputes arising from the breach of that promise. The mere
presence of a contract is not enough to establish specific jurisdiction.
- This is a diversity suit, so it is brought in Federal Court. That does not allow
Rudziewicz to escape the state’s long-arm statute, because Federal courts have to
apply state long arm statutes according to FRCP 4(k)(1)(A).
F. Exceptional Cases: Domestic Relations and Libel
- Federal courts lack SUBJECT MATTER jurisdiction over domestic relations.
- Kulko v. Kulko- 1978
- An effects test may be used to establish jurisdiction, whereby an individual who
causes effects in the state by an act done elsewhere may warrant jurisdiction over any
cause of action arising from these effects unless the exercise of jurisdiction would be
unreasonable based on the nature of the effects or the def’s. relationship to the state.
- To make jurisdiction turn on whether defendant bought his daughter her plane ticket
or unsuccessfully sought to prevent her departure would impose an unreasonable
burden on family relations.
- The fact that California may be the center-of-gravity for choice of law purposes bc
the monetary value of the suit relies heavily on the cost of living in California does
not mean that California has personal jurisdiction over the defendant.
- Calder v. Jones- 1984
- This case makes the effects test more widely renowned.
- Even though defendants contacts with CA were inadequate to justify jurisdiction,
they intended to and did cause tortious injury in CA. CA was the focal point of their
story and of the harm suffered. Because of the effects test, it is enough that their
intentional tortious actions were expressly aimed at CA, so they could have
reasonably anticipated being haled into court there.
- This new theory of jurisdiction becomes increasingly important in the internet age.
- Keeton v. Hustler Case in Notes after Calder v. Jones
- Similar to Calder v. Jones, except Keeton didn’t sue in her home state. She sued in
Hustler’s home state. However, it turned out that the statute of limitations had run in
that state, so she moved the suit to New Hampshire whose statute of limitations was
6 years instead of 2 or 3. This is allowed. Any time your case is thrown out, you may
bring it again anywhere you are able (anywhere the limit hasn’t run and jurisdiction
can be found).
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But why does N.H. have jurisdiction? They have no connection to the case except
that the magazine was distributed there. That is enough. The tort of libel is generally
held to occur wherever the offending material is circulated. Because the magazine
was circulated in New Hampshire, New Hampshire had jurisdiction. New
Hampshire also claimed an interest in adjudicating the dispute, because libel means
someone lied, and when you lie in magazine, you lie to the readers of the magazine,
and since 11,000 copies were sold in NH, 11,000 NH citizens were lied to and were
therefore injured, and NH didn’t like this.
- The Bivens Doctrine is similar to 42 USC § 1983 except for federal officers instead
of state officers. Bivens v. Six Unknown Named Agents authorized civil suits to be
brought against federal officers for violations of constitutional rights.
- Fiore v. Atlanta DEA Agent Airport Case in Notes after Calder v. Jones
- Plaintiffs in this case tried to argue the effects test and were unsuccessful, because
the GA DEA agent did not act intentionally tortious. Plaintiffs argued that because
he kept their money from returning to Nevada, he deprived Nevada’s economy, but
this case differs from Calder v. Jones, because Calder intended to injure Shirley Jones
in CA and he intended a CA audience to be the target of that injury. The DEA agent
acted in good faith in taking the money, & he didn’t know Fiore was from Nevada.
- When the tort takes place in another state, the defendant has to be targeting the
forum state, NOT just the plaintiff, in order for the forum to have jurisdiction.
- Young Notes Case Following Calder
- The problem with the internet is that your posts can go anywhere, so there is little
evidence that the defendant intended the content to end up in any one certain state
or was targeting the audience of any one certain state.
- Shams Notes Case Following Calder
- This case demonstrates that the effects test is good in situations other than just libel.
Iowa man entrusted his sister with his bank account and asked her to pay his bills for
him. She didn’t pay the bills and she stole his money. Court says because the sister
acted intentionally, because she was aware of the location of the bank (in Iowa), and
because her acts made Iowa the focal point of the tort, the wrong technically
occurred in Iowa where plaintiffs bank account and two children were located.
- Washington Shoe Notes Case Following Calder
- Says because an Arkansas man directed an intentional, commercial tort, targeting a
Washington corporation’s profits directly, jurisdiction is good.
G. General Jurisdiction and Presence
- Daimler AG v. Bauman- 2014
- This case is the one that brings about the concept that a corporation may be sued on
any and all claims (all-purpose/general jurisdiction) only where it is at home, and it is
at home in two places: The state of incorporation and the principle place of business.
- Plaintiff argues that Daimler USA is an agent for Daimler AG, so that subjects
Daimler AG to general jurisdiction wherever Daimler USA is at home, but it has
never been determined with certainty that agency relationships apply to general
jurisdiction. Agency relationships are relevant to the existence of specific jurisdiction.
- Also, Daimler USA is NOT an agent for Daimler AG, so the court doesn’t consider
whether or not an agency relationship is in fact relevant to general jurisdiction.
Additionally, agency relationships do not subject the parent corporation liable to
everything the agent does in its place. Agents are only authorized to act on behalf of
the parent corporation in certain regards. You might give a real estate agent authority
to show your house and take offers, but you wouldn’t give them authority to choose
your classes and sell your car. If you sold your car to someone, they couldn’t sue you
in the home state of your real estate agent on the basis of the car sale, because you
don’t live in that state and your real estate agent wasn’t authorized to sell your car.
- The concurrence by Sotomayor tries to apply the reasonableness test here, but
Ginsburg says that’s no good. We only use the reasonableness test when determining
specific jurisdiction, not general jurisdiction.
- Burnham v. Superior Court- 1990
- Minimum contacts is merely a supplement for jurisdiction when the forum lacks the
defendants presence within its borders, which is why the contacts must be related to
the suit in order to justify jurisdiction. Likewise, when property ownership is used as
a supplement for jurisdiction, it must also be related to the suit. But physical
presence in a state at the time you were personally served has always been sufficient
to justify jurisdiction.
- The main point of this case is to demonstrate that when a defendant is physically
present in the forum state and is personally served there, the forum always has good
jurisdiction because of tradition. There’s not a single case with an opposing outcome.
H. Jurisdiction by Consent: Private Contract
- Carnival Cruis Lines, Inc v. Shute- 1991
- The Federal court judge stops writing his opinion to check with a State court judge
on his allowances of actions and jurisdiction because it is the instinct of judges to not
decide anything they don’t have to decide. He wanted to certify the question with an
answer from a state court judge because he has never approached this question
before, so rather than make a new opinion, just use someone else’s established
opinion. Judges decide cases, not abstract legal ?s (how those ?s apply to the case).
- Jurisdiction MAY be consented to and MAY be contracted for in the form of a
forum selection clause, but the clause has to be reasonable. The reasonableness is
determined in this case by the cruise lines special interests in limiting the forums
(fora) in which it may be called, because it hosts passengers from all over the world,
and it would be very costly for the company to go to every place a passenger lives to
defend against a suit. Additionally, such a clause may save the passengers and judicial
system money and resources by saving them the trouble of pretrial motions to
determine forum, and because the passengers likely benefit from reduced fare the
cruise line is able to offer by limiting its litigation costs with this clause.
I. Jurisdiction and the Internet
- Dudnikov v. Chalk & Vermillion Fine Arts, Inc.- 2008
- Plaintiffs don’t need to prove a tort to gain jurisdiction, they just need to show that
their claim for tort is a colorable claim.
- Primary purpose of this case is to show how the effects test would play out in an
internet case. Effects test requires: (1) Intentional Action, (2) Expressly aimed at the
forum state, and (3) Defendant must have knowledge of the plaintiff’s injuries
resulting in the forum state. Effects test satisfies only the first of three elements
identified in the due process inquiry: (1) Defendant must have purposefully directed
its activities at residents of the forum state, (2) the plaintiff’s injuries must arise out
of defendant’s forum related activities, and (3) exercising personal jurisdiction over
defendants must not offend traditional notions of fair play and substantial justice.
- Defendants argue that plaintiff’s jurisdiction is not based on their intentional torts,
but on plaintiffs own unilateral conduct, and the court has previously held that
unilateral conduct is not enough to confer jurisdiction. Unilateral acts occur in at
least two distinct ways: (1) Plaintiff purchases a product in one forum and carries it
into another forum, (2) Even though defendant HAS directed his activities at the
forum, plaintiff’s injuries resulted out of his own (or a third party’s) unilateral acts.
- In determining whether the plaintiff’s injuries arose out of the defendant’s forum
related activities, the court looks to a standard of but-for and proximate cause. There
is no need to choose between them, because they are both satisfied in this case.
J. The Requirement of Reasonable Notice
- Mullane v. Central Hanover Bank & Trust Co.- 1950
- Only notice required by NY statute and, thus the only notice given was a newspaper
publication. Court determines this is enough notice to provide for those beneficiaries
whose interests and locations are not known to the trustee.
- However, as to the beneficiaries whose names and addresses are known, the means
employed must be such as one, desirous of actually informing the absentee, might
reasonably adopt to accomplish such notice.
- This determination balances the conflicting interests of the state in bringing any
issues as to its fiduciaries to a final settlement and the interests of the individual to
have an opportunity to be heard by being informed that the matter is pending.
- The attempt at notice must be reasonable and calculated to reach anyone with
present interest in the matter at hand.
- Problem 2-C
- If defendant moved to quash, the first question you would ask is “Well, did you get
the service of process? Because if you did, it seems like it was effective.” However,
the court may very well throw this out, because FRCP 4(e)(2)(B) allows service of
process by leaving it at the defendant’s domicile with a person of a suitable age and
discretion who resides there. The babysitter is of suitable age and discretion, but she
does not reside there. The daughter resides there, but she’s only 7, and most courts
would agree that is too young to satisfy this rule.
K. Litigating Jurisdiction
- Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee- 1982
- The Due Process Clause is the only source of the requirement for personal
jurisdiction, and that requirement recognizes and protects an individual liberty
interest. Despite many past cases claiming the requirement served a two-fold
purpose (1. To protect individual liberties and 2. To uphold state sovereignty), this
case says the issue of sovereignty really just stems from the individual liberty interest,
which is the primary and really sole concern. The Due Process Clause makes no
mention of Federalism concerns.
- Because the personal jurisdiction requirement represents an individual right, it can be
waived. A person may submit to jurisdiction of a court by appearance, or he may
contract for jurisdiction (even by an agreement to arbitrate) or may stipulate to it, or
may waive his right to it by failing to object to it at the outset, etc.
- Thus, a court may very well obtain personal jurisdiction through sanctions under
FRCP 37(b)(2)(A) without violating due process. It is just like any other legal right.
- If you appear to contest a court’s jurisdiction, you are consenting to its ruling and
you must cooperate with the jurisdictional inquiry.
- Mueller’s Favorite Notes Case- Frieda (FL) v. Orlin (OR)
- When Frieda brings a suit against Orlin in FL over an accident occurring in KS,
these are Orlin’s options on how to proceed:
o Show up in Florida and contest jurisdiction. If he wins, the case is dropped.
If he loses, he MUST abide by the judge’s decision and move forward with
the case. He cannot appeal the decision, because it is not a final judgement.
He must wait until the case is completed entirely to appeal both the merits of
the case and the issue of the court’s jurisdiction. If he decides to go back to
Oregon and not proceed with the case, the judge will enter a default
judgement and Frieda will take it to Oregon and sue on the default
judgement. Orlin can contest, but the Oregon court will see that jurisdiction
was already decided by the Florida court and will give the judgement full faith
and credit.
o Stay home and Oregon and do nothing. Frieda will win a default judgement
and bring it to Oregon to have it executed. At that point, Orlin can contest
Florida’s jurisdiction in his own home state and the Oregon court will
determine if Florida had jurisdiction. However, if the Oregon court
determines that jurisdiction WAS good, then the judgement will be given full
faith and credit, and Orlin will have lost his chance to argue his side of the
merits of the case.
3. Subject Matter Jurisdiction (The Competence of the Courts)
- Not as large an issue in state courts as in federal courts.
- 2 big areas of Federal Subject Matter Jurisdiction: (1) Diversity Jurisdiction, and (2)
Federal Question Cases.
A. Citizenship for Diversity Purposes
- Jane Doe v. Schwerzler- 2008
- Burden of proving jurisdiction falls on the Plaintiff and must be in the pleading
according to FRCP 8(a)(1).
- The plaintiff also bears the burden of disproving the presumption that her domicile
didn’t change when she moved to KY for school, because students typically return to
their home state when they finish school in another state. The party a presumption is
directed at always has the burden of overcoming the presumption.
- The judge looks at facts like: driver’s license, voting registration, car registration, state
income tax payments, leased property in the state, paid utilities in the state, open
bank accounts in the state, and domicile. Obtaining domicile just requires that you
make it to the state and have an intention of remaining there indefinitely.
- Notes on Citizenship for Diversity Purposes
- Corporations are dual citizens: (1) chartering state and (2) principal place of business.
- Partnerships are citizens in every state in which a partner resides.
- Diversity jurisdiction for fairness for out of state litigants (Local bias from local state
judges who have to be reelected by the plaintiffs in their cases, and from jurors who
are chosen locally as opposed to federal courts which pull jurors from all over the
state). D.J. also encourages more uniformity among states in their laws, and drives
better outcomes with a cross-fertilization of states interests and rules.
- Two competing rules on how to solve the amount-in-controversy problem in suits
seeking declaratory or injunctive relief: (1) estimated cost or value of the sought-after
relief to the plaintiff, (2) estimated cost or value of the sought-after relief to the
defendant.
- Constitutional rule only requires minimum diversity, where the statutory rule requires
complete diversity among parties.
B. Federal Question Jurisdiction (Suits “Arising Under” Federal Law)
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Louisville & Nashville Railroad Company v. Mottley- 1908
For a suit to “arise under” federal law, the parties must show that the plaintiff’s
original cause of action arose under the constitution or federal statutes. It is not
enough for the plaintiff to allege some anticipated defense to his cause of action and
assert the defense is invalidated by some provision of the Constitution. The federal
question must appear on the face of a well-pleaded complaint. Plaintiff cannot plead
his complaint artfully to make the language of the federal question appear within the
complaint even though it is not the actual bass of the claim.
- While personal jurisdiction must be denied by motion or else lost forever, subject
matter jurisdiction may be decided at any time by any means (court can just decide so
itself without the issue ever being raised by the parties).
- The Declaratory Judgment Act authorizes federal courts to declare the rights of
parties before suit is even brought (A knows B is going to sue him, so A files under
this Act seeking a judgment declaring his rights so he can avoid the costs of a
lawsuit), however the act is not an independent grant of federal subject matter
jurisdiction, jurisdiction still depends on the nature of the anticipated claims.
- Mottley 2:
- The Mottleys return with the same suit and this time seek relief under the
Declaratory Judgment Act. No can do Mottleys. The court STILL doesn’t have
jurisdiction to hear your claims, because the nature of the anticipated claim is STILL
not federal. Skelly Oil Notes case says D.J.A. doesn’t expand federal jurisdiction.
You can’t walk use it to walk around the rule from Mottley 1. Congress wouldn’t
want to displace such cases.
- As explained in the Jones v. Smith Notes case, if either one of the two parties has a
Federal issue CLAIM to be brought, then the other of the two parties can use the
Declaratory Judgment Act to get jurisdiction in Federal courts- Coercive Suit.
C. Arising Under Jurisdiction in Cases of Special Federal Concern
- 3 Tests for determining arising under jurisdiction: (1) Does Federal Law create the
cause of action (American Well Works)? (2) Does the Federal Issue appear on the
face of a well-pleaded complaint (Mottley)? (3) Does the outcome turn on a federal
issue (Kansas City Title)?
o Test 1 is too narrow: Works well to determine what should be included, but
doesn’t help determine what should be excluded. If Federal Law did create
the cause, then federal court obviously has jurisdiction, but even if that is not
the case, federal courts might still have good jurisdiction.
o Test 2 is too broad: Works well to determine what should be excluded, but
doesn’t help determine what should be included.
o Test 3 comes from a broad statement found in the Kansas City Title case
where the court stated that there is arising under jurisdiction if the outcome
turns on a federal issue.
- Grable & Sons Metal Products v. Darue Engineering & Manufacturing- 2005
- A state law claim can give rise to federal-question jurisdiction so long as it appears
from the complaint that the right to relief depends upon the construction or
application of federal law.
- A federal question DOES appear on the face of Grable’s complaint here.
- There must always be an assessment of potentially disruptive results from exercising
federal jurisdiction (We don’t want to disrupt the federal/state balance, so there has
to be a minimal conflict of state and federal interests).
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The meaning of the federal tax provision is an important issue of federal law that
sensibly belongs in federal court. The government has a direct interest in the
availability of a federal forum to vindicate its own administrative action, and buyers
may find it useful to come before judges used to federal tax matters.
- When implicating significant federal issues, justly resort to the uniformity that a
federal forum offers on federal issues.
- If a case goes all the way through the state court system and brings up no federal
issues, it can’t be heard in the SCOTUS.
- Rule from Grable: Grable authorizes arising under jurisdiction if a federal issue is:
(1) necessarily raised, (2) Actually disputed, (3) Substantial, and (4) Capable of
resolution in Federal Court without disrupting the federal-state balance approved by
Congress.
- Notes on Cases of Special Concren
- The Osborn Doctrine is not very broad nor commonly invoked. This Doctrine
supports a theory of “protective jurisdiction” which is when federal courts are made
available to federal officials to protect federal authority. The Doctrine allows for
Federal jurisdiction where a federal question forms an ingredient of the original
cause, however the federal law must be demonstratively determinative.
D. Federal Supplemental Jurisdiction
- Additional claims can be litigated in federal court if attached to claims that have good
subject matter jurisdiction.
- Pendent Jurisdiction is used for arising under cases and occurs when “two distinct
grounds” (one state and one federal) support a single cause of action, even though
only one is federal in nature. The relationship between the state claim and the arising
under claim must be such that the entire action before the court must comprise one
Constitutional case and must be derived from a common nucleus of operative fact.
- Gibbs is the traditional Pendent Jurisdiction case, and it is a doctrine of discretion not
of Plaintiff’s rights. In Gibbs, the Plaintiff brought two cases (one federal, and one
state) against the same one defendant (arising out of the same case and controversy).
The court does not HAVE to hear these types of claims, but they are permitted to
do so. The federal claim must predominate to eliminate the courts basis for
discretion. The court may exercise discretion if the state claim predominates, it may
be thrown out. If the federal claim is thrown out, so too might the state claim be.
- Aldinger is a failed attempt at pendent jurisdiction. In Aldinger, the Plaintiff brings a
state claim against one defendant and a federal claim against another defendant (with
both claims arising out of the same case and controversy), and jurisdiction is denied.
- Finley is another case similar to Aldinger. Two claims against two different
defendants (one state and one federal) arising out of the same case and controversy,
and the court said there was not good jurisdiction.
- HOWEVER, the supplemental jurisdiction statute comes about after these decisions
and serves to change their outcomes so that both Finley AND Aldinger would have
good jurisdiction.
- Ancillary Jurisdiction is used for Diversity Jurisdiction cases, and its basis is to
protect legal rights and to effectively resolve an entire, logically entwined lawsuit.
Ancillary jurisdiction claims are those claims brought by the defendant or other
additional parties after Plaintiff has filed his initial complaint. This is most commonly
used by defendants being haled into court against their will or by those whose rights
would be irretrievably lost unless he could assert them in a federal court.
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Kroger is an example of a failed Ancillary claim. Iowa woman brings a claim against a
Nebraska corporation. Nebraska corporation impleads a second corporation
(thought to be from Nebraska), and Iowa woman amends her claim to add the other
corporation to her complaint. The court dismisses the complaint against the first
Nebraska corporation, so it is just the Iowa woman and the second corporation
remaining. It then comes out that the second corporation is actually from Iowa as
well, so diversity is lost, and so is the court’s jurisdiction. SCOTUS tells plaintiff that
the relief she so avidly seeks is available to her in state court, so there is no reason
for federal court to keep the claim.
The Supplemental Jurisdiction Statute- 28 USC § 1367
This statute would primarily serve to give jurisdiction to cases like Finley and
Aldinger (cases in which one plaintiff brings a state claim against one defendant and
a federal claim against another defendant when both claims arose under the same
case and controversy)- so it allows federal jurisdiction to partial federal question
cases. This statute also gives jurisdiction to Diversity cases in which one party
satisfied the amount in controversy requirement even though the other parties to the
case do not satisfy this requirement.
The statute carves out exceptions to diversity cases in which diversity of citizenship
is minimal and not complete (VT P1  FL D1 and VT D2  NO
JURISDICTION) or, in cases where defendants are Impleaded (FRCP 14), Required
to be Joined (FRCP 19), Permissively Joinded (FRCP 20), and Intervening (FRCP
24), as well as Plaintiffs who are Required to be Joined (FRCP 19) & who Intervene
(FRCP 24), in cases that do not meet the amount in controversy requirement.
Exxon Mobil Corp. v. Allapattah Services Inc.- 2005
Holding: Where the other elements of jurisdiction are met, and at least one plaintiff
in the action satisfies the amount in controversy requirement, § 1367 DOES
authorize federal supplemental jurisdiction over the claims of other plaintiffs that
arise out of the same case and controversy, even if those claims don’t meet $75,000.
The results of the case are two-fold: (1) if complete diversity is satisfied and one
plaintiff has a claim against the defendant that satisfies the amount in controversy
requirement, there is supplemental jurisdiction over undersized claims by additional
plaintiffs against THE SAME defendant, and (2) IN CLASS ACTION SUITS, if the
diversity requirements are satisfied (standard bearer is diverse from the defendants)
and the standard bearer’s claim satisfies the amount-in-controversy requirement,
there is supplemental jurisdiction over undersized claims by other class members.
Supplemental Jurisdiction only kicks in after we have a whole lawsuit. This is why
1367(b) has a carve out for diverse Plaintiffs added under rule 19 (Required Joinder),
but not under rule 20 (Permissive Joinder). We don’t want a necessary plaintiff to be
negated from the initial complaint and added later, only to skirt around the
jurisdictional requirements. Parties should not manipulate the system like that.
4 areas in which 1367 clearly authorizes supplemental jurisdiction:
1. Supplemental jurisdiction exists over most, if not all, compulsory counterclaims
made by defendant against plaintiff which arise out of the same transaction or
occurrence underlying plaintiffs claim, though S.J. does not exist over most
permissive counterclaims which do not arise out of that transaction. (What is
the distinction here? The difference between compulsory and permissive
counterclaims, or the difference between arising out of the same and
arising out of different transactions or occurrences?)
2. S.J. exists over impleader claims which defendant makes against a 3rd party
defendant, in which the former claims pass through liability (if I am liable to P,
then he is liable to me).
3. S.J. exists over claims by impleaded 3rd party defendants against either the
defendant or the plaintiff.
4. S.J. exists over cross-claims that one defendant makes against another if they
arise out of the same transaction as plaintiff’s claims against defendants.
5. Any combination of claims among parties where there is a federal question claim
and the other claims arise out of the same case and controversy.
E. Federal Removal Jurisdiction
- Defendant cannot remove the case if (s)he is a citizen of the forum state
- Removal of suits with state law claims is allowed in two circumstances: (1) when
congress expressly so provides or (2) when a federal statute wholly displaces the state
law cause of action through complete preemption.
- Removal of suits with federal CLAIMS are ALL allowed except suits under FELA or
Jones Act (suits on behalf of sailors). Plaintiff is master of complaint.
- Caterpillar, Inc v. Williams- 1987
- Even if a federal defense is present, there is no removal jurisdiction if plaintiff does
not structure his complaint such that a federal issue appears on its face.
- If a case is removed from state to federal court, and a higher court remands it back
to the original state court, no one may appeal (defendant is usually the one who
would appeal), and if the federal court decides to keep the case, no one may appeal,
because it is not a final order (28 USC 1447).
- If the plaintiff thinks the removal was improper, she can move to remand to state
court. Remands cannot be appealed unless it’s a civil rights or federal officer case.
- Here, Federal court decides the suit was properly removed, so he orders the plaintiff
to amend his compliant to include the federal question. Plaintiff says fuck off, I am
the master of my own compliant, and I am not amending. Federal court throws
plaintiff out and rules in favor of defendant, and NOW the plaintiff can appeal.
- Defendant claims plaintiff is pleading artfully (which courts hate) by disguising his
federal question claim in a state law claim. The court says no, he is mastering his
complaint. He could bring either or both of the state law and federal claims, and he
chose to only bring the state law claim and to omit the federal claim entirely so he
could choose state court. This is allowed. There is no rule saying he MUST bring all
claims that exist. If he doesn’t want to sue on that claim, he doesn’t have to.
- Problem 3-A
- Presence of John Doe defendants creates no impediment on removal, as the
citizenship of defendants sued under fictitious names is disregarded.
- If a diverse defendant doesn’t remove to federal court within 30 days of you filing
the suit, your case is safe in state court and defendant has lost his chance.
- All defendants who have been served must join in removal. If even one defendant
among ten wants to stay in state court, they must all stay.
- 30 days for removal starts afresh with the addition of each new defendant
4. The Right Court: Venue and Transfer
A. How Venue Rules Operate
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Typical Venue Provisions: Defendant’s residence is almost always the preference (So
Plaintiff gets to dictate jurisdiction with his complaint, but Defendant gets to dictate
venue); the county where the acts or events giving rise to the suit occurred is a large
consideration; when suing a corporation, venue is proper anywhere the corporation
is at home and anywhere the corporation has minimum contacts; plaintiffs residence
is typically only considered when none of the other three are possible. Also, some
states say venue is good for ALL defendants if it is good for one defendant.
- Venue should not be changed as wrong merely because another venue is also proper.
- Forum Non Conveniens allows suits to be transferred even when venue is proper,
because another venue would be better or more convenient.
- Venue objections are waived if they are not raised by answer or pre-answer motion,
and are waived if defendant makes ANY motion under FRCP 12 and fails to first
raise the issue of venue.
B. Federal Venue Law
- Basic federal venue statute provides two primary choices for venue location and a
third if both of those are unavailable: (1) any judicial district where any defendant
resides if ALL defendants reside in the same state, (2) The judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred or where
a substantial part of the property that is the subject of the action is situated, and (3)
any judicial district where any defendant is subject to personal jurisdiction.
- Problem 4-A
- Corporate Plaintiff has only one residence for purposes of venue- its principal place
of business.
- Courts often determine where a “substantial part of the events occurred” based on
where the “last necessary act occurred,” so defendant has a strong case since his
domicile is the state in which the accident occurred, BUT the plaintiff went to the
hospital in Tennessee and much of his medical information would be found there.
Also, if there is not good jurisdiction over one of the other defendants in Arkansas,
then venue wouldn’t be good there, and Tennessee would be the best option.
- Piper Aircraft v. Reyno- 1981
- The possibility of an unfavorable change in law should not bar dismissal. In fact, the
possibility of a change in substantive law should not be given conclusive or even
substantial weight in the forum non conveniens inquiry. Convenience = central
focus. Although if the remedy provided by the alternative forum is so clearly
inadequate or unsatisfactory, the unfavorable change in law may be given substantial
weight.
- A plaintiff’s choice of forum should rarely be disturbed (though when plaintiff is a
foreigner, the presumption applies with less force). However, when trial in the
chosen forum would establish oppressiveness and vexation to a defendant out of
proportion to plaintiffs convenience, OR when the forum is inappropriate because
of consideration affecting the courts own administrative and legal problems, the
court may dismiss the case in the exercise of its sound discretion (change the forum
if the private and public interest factors clearly point toward trial in altern. forum).
- Factors pertaining to the private interest of the litigants: (1) relative ease of access to
sources of proof (witnesses to crash all live in Scotland, not USA), (2) availability of
compulsory process for attendance of unwilling witnesses and the cost of obtaining
attendance of willing witnesses, (3) possibility of view of premises (place of the
crash) if the viewing would be appropriate to the action, and (4) all other factors that
make the trial of a case easy, expeditious, and inexpensive.
- Factors pertaining to the public interests: (1) administrative difficulties flowing from
court congestion, (2) the local interest in having localized controversies decided at
home, (3) having the trial of a diversity case in a forum that is at home with the law
that must govern the action, (4) the avoidance of unnecessary problems in conflict of
laws or in the application of foreign laws, and (5) the unfairness of burdening
citizens in an unrelated forum with jury duty.
- Van Dusen rule is that if a court has good jurisdiction and good venue, but the case
must be transferred for convenience, the new court must apply the law of the initial
court’s forum- you get the benefit of the choice of law rule.
- 2 venue provisions: 28 USC § 1404 which provides for transfer if venue is proper but
inconvenient and 28 USC § 1406 which provides for transfer if venue is improper.
- You can’t transfer a case from one sovereign state to another, you have to dismiss
and refile. BUT if you want to be sure the parties will submit to the court’s
jurisdiction, you can mark the case as pending until you are sure the new forum has
obtained good jurisdiction.
5. Modern Federalism: Erie, Abstention, and Related Doctrines
A. State Law in Federal Courts: The Erie Doctrine
- Swift v. Tyson- 1842- overturned by Erie
- Court determines that state substantive law will only apply under the Rules of
Decision Act (RDA) where there is a statute or a written law, and it does not apply
to common law or court decisions, because court decisions are just evidence of the
law and not the law itself.
- Erie Railroad v. Tompkins- 1938
- Three reasons for overturning Swift: (1) Statutory, (2) Policy, and (3) Constitutional
- (1) The Rules of Decision Act (RDA) was intended to include common law
according to an earlier draft, but the drafters shortened it for concision, but intended
for it to include everything the original draft contained.
- (2) Additionally, the benefits expected to flow from Swift didn’t occur. J. Story in
Swift expected two results to flow from his decision: (1) Better uniformity among
state laws- he thought that if the states knew federal courts would have to use their
laws in diversity suits, they might try to create a more uniform, federal system of law
instead of having independent state laws. This didn’t happen, because states didn’t
have to look to federal laws for guidance and they really didn’t want to because they
were probably offended by the notion that the feds know better than they do. (2)
Prevent discrimination of in state parties by out of state parties and the prevention of
forum shopping and inequitable administration of laws. Story didn’t want plaintiffs
to choose a court merely for the sake of having the case come out a different way,
but his rule didn’t work to prevent this. Brown and Yellow Taxi Company case is a
shining example of this. The company reincorporated in another state so they could
get diversity jurisdiction and bring the claim in federal court so they could avoid the
state’s adverse common laws.
- (3) According to the enumerated powers of the constitution, Congress can’t regulate
whether the law of the state must be declared by its legislature or by its highest court
in a decision, so Federal courts ought not to be able to do so either.
- Equal protection of the laws is the primary intent of the Erie Doctrine. This means
you should not get a different result by bringing your case to federal court than you
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would get by bringing it to state court. We should all be subject to the same legal
standards.
Guaranty Trust Co. v. York- 1945
Erie Doctrine applies to courts in equity as well as courts in law.
Statutes of limitations are substantive for Erie purposes.
One may distinguish between substantive and procedural by using the outcome
determinative test. If the rule would determine the outcome of the case, and not just
the way its litigated, it is substantive and state law should apply.
Conflicts of law may be determined/settled through an interest analysis in which you
use the law of the state with the most interest in having its law used. Thus in all cases
apart from those where statutory directive tells a court which law to apply, courts are
to consider: (1) the needs of the interstate and international systems, (2) the relevant
policies of the forum, (3) the relevant policies of other interested states, (4) the
protection of justified expectations, (5) the basic policies underlying particular fields
of law, (6) certainty, predictability, and uniformity of result, and (7) ease in the
determination and application of the law.
Byrd v. Blue Ridge Rural Electric Cooperative- 1958
Byrd begets a balancing test in which the question of whether to apply state or
federal law is determined by asking whether the policy behind the state rule or the
policy behind the federal rule is the weightier.
Brennan was salty that Erie seemed to be taking everything away from Federal courts
and rendering them mere actors on behalf of the state courts.
Hanna v. Plumer- 1965
The outcome determination test cannot be read without reference to the twin
aims of the Erie rule: (1) discouragement of forum-shopping, and (2)
avoidance of the inequitable administration of the laws (different results
among different courts). This is the Hanna I rule
Substantive rules can be said to alter out of court conduct (part of Harlan’s
concurring opinion), while procedural rules alter the way suits are brought. No one
would choose a Federal court so they could use the FRCP’s form of service of
process instead of the state’s service of process, as both are adequate and welldesigned to provide actual notice.
The Erie rule has NEVER been invoked to void a Federal Rule. The Federal Rules
were authorized under the Constitution’s Rules Enabling Act which vested the
authority in Congress to write up procedural rules, and it states that the rules cannot
modify substantive rights. So if it is in the FRCP, it is not substantive.
If the rule could reasonably be considered procedural, then Federal Rules apply (if
arguably procedural, then procedural). This is the Hanna II rule.
Ask: Is there a federal provision/law on point that directly conflicts with state law? If
yes:
o If the conflicting federal provision is from the Constitution, the Constitution
wins.
o If the conflicting federal provision is a federal statute, the federal statute wins
so long as it is valid (Not unconstitutional).
o If the conflicting federal provision is a Federal Rule, the Rule wins so long as
it is valid.
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The outcome test should ask an ex ante question, not an ex post question- look at it
from the perspective of the litigant BEFORE choosing the venue. Would this rule
change their minds about the chosen venue?
- Gasperini v. Center for Humanities, Inc.- 1996
- Ginsburg brings back the balancing test approach that Hanna seemed to do away
with. Hanna said “to hell with State’s rules, if there’s a Federal rule, we apply it!”
Ginsburg says “no, we need to accommodate the state’s interests when we can.”
- Ginsburg takes an accommodationist strategy/approach. NY’s rule is both
substantive and procedural, so Ginsburg says “we will keep the substantive part of
this rule while doing away with the procedural part of this rule.”
- Scalia has his revenge in the Shady Groves notes case which somewhat reverses the
accommodationist approach, though Ginsburg dissents and carries on with her view.
B. Federal Common Law (In State and Federal Courts)
- No General Federal Common Law
- The Feres Doctrine says that as a matter of federal common law, a member of the
armed services cannot sue the US for personal injuries incurred in the course of duties.
- Boyle v. United Technologies Corp.- 1988
- Some areas involve uniquely federal interests and are so committed to federal control
by the Constitution and laws of the US that state law is preempted and replaced by
federal law of a content so prescribed by the courts (federal common law)
- The two areas in this case that were said to involve uniquely federal interests are: (1) the
obligations to and rights of the United States under its contracts are governed exclusively
by federal law, and (2) the scope of the civil liability of federal officials for actions taken
in the course of their duty is controlled by federal law, because there is an interest in
getting the Government’s work done. The imposition of liability on Government
contractors will directly affect the terms of Government contracts: either the contractor
will decline to manufacture the design specified by the Government or it will raise its
price.
- Displacement of state law in favor of federal law will only occur (1) where a significant
conflict exists between an identifiable federal policy or interest and the operation of state
law OR (2) where the application of state law would frustrate specific objectives of
federal legislation.
- Two-part test: (1) Does the issue at hand fall within the appropriate exercise of federal
power, and specifically within the appropriate scope of common law doctrine? (2) What
should the content of that doctrine be?
C. Intersystem Effects- Federal Deference to State Courts (Abstention Doctrines)
- Pennzoil Co. v. Texaco, Inc.- 1987
- Younger abstention has three bases: (1) Courts should not act when the moving party
has an adequate remedy at law. (2) The notion of comity requires a proper respect for
state functions, a recognition of the fact that the entire country is made up of a Union of
separate state governments, and a continuance of the belief that the National
Government will fare best if the states and their institutions are left free to perform their
separate functions in their separate ways. Such a notion supports a system in which there
is sensitivity to the legitimate interests of both State and National Governments and in
which the National Government will not unduly interfere with the legitimate activities of
the States. (3) To avoid unwarranted determination of federal constitutional questions.
Federal court decisions are not binding on state courts, so federal courts should not
waste their resources making a decision that may be discredited at any time by a state
court and be considered merely advisory, rendering the underlying litigation meaningless.
- States have an interest in enforcing the orders and judgments of their courts, and
federal injunctions in such cases interfere with the execution of state judgments in a way
that challenges the very process by which those judgments were obtained.
- The Rooker/Feldman Doctrine states that lower federal courts (not the U.S. Supreme
Court) lack the jurisdiction to engage in appellate review of state court determinations.
- The significance of Pennzoil is that the decision recognized that Younger’s idea of
Federalism bears on proper respect for the work of state courts in civil cases. The
nonintervention principles of Younger are not confined to the state criminal process but
rest on notions of comity and proper respect for state functions.
-Abstention is appropriate when the requested relief would (1) interfere with an
ongoing state judicial proceeding (2) that implicates an important state interest
and (3) that provides an adequate opportunity for the federal plaintiff to advance
his federal constitutional challenge.
- Pullman Abstention: a court should avoid resolving a constitutional issue if there’s a
way to resolve it using state law.
- Burford Abstention: when a party to a state court action seeks injunctive relief from a
federal court, the federal court should abstain from interfering or interrupting when the
case is within the state administrative machinery involving a complex code or regulation
and an agency or commission with supervisory and enforcement powers.
- Colorado River Abstention: This is about not having simultaneous, duplicative lawsuits
involving the same parties over the same controversy (avoid wastefulness).
-Negrete v. Allianz Life Insurance, Co.- 2008 (Anti-Injunction Act)
- A party may take an immediate appeal from an interlocutory injunction under 28 USC §
1292.
- There is no support for the proposition that a court may enjoin parties from
participating in or reaching a bona fide settlement in another federal court particularly
when there is no pending settlement in the enjoining court. The mere fact that some
other court may complete its proceedings (which might interfere with your own) before
you are able to complete the proceedings in your case does not justify an injunction.
- The Anti-Injunction Act states that a federal court may not grant an injunction to
stay proceedings in a state court except (1) as expressly authorized by Act of Congress
(statute), (2) where necessary in aid of its jurisdiction, or (3) to protect or effectuate its
judgments. Based upon considerations of Federalism and high public policy. Any doubts
as to the propriety of a federal injunction against state court proceedings should be
resolved in favor of permitting the state courts to proceed to determine the controversy.
- Exception 2 only relates to In Rem Jurisdiction and it protects the exercise of federal
jurisdiction. In personam actions in federal and state court may proceed concurrently
without interference from either court.
- Exception 1 includes at least two statutes which authorize use of Anti Injunction Act:
(1) 28 USC 1983, which was used as the basis for using the AIA in Pennzoil v. Texaco
and (2) 28 USC 2361 (the Interpleader Act).
- The Anti Injunction Act only applies to federal court injunctions against state court
proceedings- not state court injunctions against other state courts or fed against fed.
6. Stating Claims and Defenses: The Art of Pleading
-Why do we need pleadings? (1) The defendant needs to have a good understanding of
the claims against them in order to adequately prepare for and deal constructively with
the case. (2) The court needs the information to know how to handle the claims in going
forward with the trial or potentially dismissing them. Stricter pleadings standards allow
for disposing of weak cases early in the process. (3) Concerns over costs led to an
emphasis on the obligations of lawyers and parties to ensure well-founded pleadings
(backed by sanctions against attorneys filing pleadings in bad faith or on bad grounds).
- Code Pleading v. Rules Pleading. Only a few state jurisdictions still use code pleadings.
A. Code Pleading: allege facts that will comprise a cause of action. Do not allege
conclusions or evidence. Code pleading came about in favor of simplicity and directness (as
opposed to technicalities and formalism) and a trans-substantive standard as opposed to
having a different standard for the different types of claims.
-Rule 15: Amended and Supplemental Pledings
(a) Amendments Before Trial
(1) Amending as a Matter of Course: A party may amend its pleading once as a
matter of course within: (A) 21 days after serving it or (B) if the pleading is one to which
a responsive pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12 (b), (e), or (f) (Motion to dismiss for failure
to state a claim, Motion for a more definite statement, or Motion to Strike) whichever is
earlier. (2) Other Amendments: In all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court should freely
give leave when justice so requires. (3) Time to Respond: Unless the court orders
otherwise, any required response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 14 days after service of the
amended pleading, whichever is later.
(b) Amendments During and After Trial
(1) Based on an Objection at Trial: If a part objects that evidence presented at trial is
not within the issues raised in the pleadings, the court may permit the pleadings to be
amended. The court should freely permit amendments when doing so will aid in
presenting the merits and will not result in prejudice against the objecting party’s action
or defense on the merits. Alternatively, the court may allow plaintiff to amend and then
allow defendant a continuance (postpone the trial) to allow time to “meet” the evidence
(prepare a response/defense to it). (2) For Issues Tried by Consent: The parties may
give express or implied consent to allow the other party to raise issues and bring
evidence not included in the pleadings and the court shall treat it as though it were raised
in the pleadings.
(c) Relation Back of Amendments
(1) When an Amendment Relates Back: An amendment to a pleading relates back to
the date of the original pleading when: (A) The law that provides the applicable statute
of limitations allows relation back, (B) The amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out- or attempted to be set out
in the original pleading, or (C) the amendment changes the party against whom a claim is
asserted if (B) is satisfied and if the party to be brought in bay amendment: (i) received
such notice of the action that it will not be prejudiced in defending on the merits AND
(ii) knew or should have known that the action would have been brought against it, but
for a mistake concerning the proper party’s identity. (2) Notice to the U.S:
(d) Supplemental Pleadings: On motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading for events that happened after the
date of the initial pleading to be supplemented.
- Reilly v. Highman- 1959
- When a defendant moves to dismiss for failure to state a claim, the plaintiff will be
given 15 days to amend the claim. If plaintiff fails to amend, the case is dismissed and he
may appeal. However, if he loses the appeal, he may not amend, and there is res judicata
in many jurisdictions. However, in others, you would be given one last opportunity to
amend your complaint after the appeal is completed. If you amend without appealing,
you agree with the court that your complaint is inadequate and you lose the right to
stand on your original complaint (Mueller thinks this is a silly rule).
- A demurrer asks a judge to decide if the complaint states a cause of action against the
defendant. Defendant didn’t have to demurrer, he could have let the inadequate claim go
forward (don’t do the plaintiffs job for him by telling him what to fix) to trial, then move
to dismiss or move for a directed verdict.
- Facts not sufficiently alleged will not support a conclusion. Merely stating your
conclusion without stating any supporting facts that could lead to such a conclusion is
not sufficient to compel a certain conclusion.
- Problem 6-A
- A party may MOVE to dismiss (though it will likely never happen) if there is a
substantive variance in the proof/evidence presented at trial and the issues raised in the
complaint, because the defendant cannot defend against the actual issue if he doesn’t
know what it is and will thus be prejudiced. Variance is not material unless it has misled a
party such that they are prejudiced, & even then, the court may allow pleader to amend
on such terms as may be just (Complaints are never thrown out for pleading issues).
B. Rules Pleading is largely just a claim for relief. The pleader must make a short and plain
statement showing that he is entitled to relief. Formalism counts for little and we need not
distinguish facts from evidence or conclusions. The statement must simply give the
defendant fair notice of what the plaintiffs claim is and the grounds on which it rests.
- A complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim that
show he is entitled to relief.
- Swierkiewicz v. Sorema- 2002
- A requirement for greater specificity should be determined by the process of amending
the Federal Rules and not by judicial interpretation or decision.
- This case claims there is a uniform pleading standard among all claims, and the only
claims with varying standards are those that the FRCP specifies as such.
- The short and plain statement rule means you do not have to outline a prima facie case
in a pleading.
-Rule 8: General Rules of Pleading
(a) Claim for Relief: A pleading that states a claim for relief must contain: (1) a short and
plain statement of the grounds for jurisdiction, unless the court already has jurisdiction
and the claim needs no new jurisdictional support; (2) a short and plain statement of the
claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought,
which may include relief in the alternative or different types of relief.
(b) Defenses; Admissions and Denials
(1) In General: In responding to a pleading, a party must: (A) state in short and plain
terms its defenses to EACH claim asserted against it; and (B) admit or deny the
allegations asserted against it by an opposing party. (2) Denials- Responding to the
Substance: A denial must fairly respond to the substance of the allegation. (3) General
and Specific Denials: A party that intends in good faith to deny all the allegations of a
pleading- including the jurisdictional grounds- may do so by a general denial. A party that
does not intend to deny all the allegations must either specifically deny designated
allegations or generally deny all except those specifically admitted. (4) Denying Part of an
Allegation: A party that intends in good faith to deny only part of an allegation must
admit the part that is true and deny the rest. (5) Lacking Knowledge or Information: A
party that lacks knowledge or information sufficient to form a belief about the truth of
an allegation must so state, and the statement has the effect of a denial. (6) Effect of
Failing to Deny: An allegation- other than one relating to the amount of damages- is
admitted if a responsive pleading is required and the allegation is not denied. If a
responsive pleading is not required, an allegation is considered denied or avoided.
(c) Affirmative Defenses
(1) In General: In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including: accord and satisfaction, arbitration and
award, assumption of risk, contributory negligence, duress, estoppel, failure of
consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release,
res judicata, statute of frauds, statute of limitations, and waiver. (2) Mistaken
Designation: If a party mistakenly designates a defense as a counterclaim, or a
counterclaim as a defense, the court must, if justice requires, treat the pleading as though
it were correctly designated, and may impose terms for doing so.
(b) Pleading to be Concise and Direct; Alternative Statements; Inconsistency
(1) In General: Each allegation must be simple, concise, and direct. No technical form is
required. (2) Alternative Statements of a Claim or Defense: A party may set out 2 or
more statements of a claim or defense alternatively or hypothetically, either in a single
count or defense or in separate ones. If a party makes alternative statements, the
pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or
Defenses: A party may state as many separate claims or defenses as it has, regardless of
consistency.
(e) Construing Pleadings: Pleadings must be construed so as to do justice.
- Bell Atlantic Corp v. Twombly- 2007
- This case brings about the plausibility standard. The requirement of plausible grounds
calls for enough fact to raise a reasonable expectation that discovery will produce enough
evidence to prove the claims put forward. The facts must nudge the claim across the line
from conceivable to plausible.
- The Rule 8 requirement that you “show you are entitled to relief” is squared with the
plausibility standard by the interpretation that the language requires you to show facts.
- Iqbal Notes Case- 2009
- To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability requirement. Plaintiff does not have to
prove that it is probable defendant is liable, just that there is more than a sheer
possibility.
- Courts must accept as true all factual allegations, but not legal conclusions, in a
complaint. While legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations. When the bare assertions amount to nothing more
than a mere formulaic recitation of the elements of a claim, they are conclusory and are
not entitled to be assumed true.
- Fulfilling the plausibility standard is a context-specific task. Thus, the standard will be
more difficult to meet in certain types of cases, by nature, but the standard IS in fact a
requirement across the board regardless of the type of complaint.
C. Elements in a Claim for Relief
- 4 considerations shape pleading requirements: (1) Public Policy (ease on the courts and
the parties to try claims), (2) Intrinsic Probabilities (requirements are shaped by what we
think is likely to be true), (3) Access to Proof (burdens of proof are placed on the party
with the greatest likelihood of access to that proof, and (4) Practical Realities (Plaintiff is
unlikely to sue for breach of contract if he has not fulfilled his own obligations under the
contract).
- The short and plain statement requirement in FRCP 8(a) means a plaintiff must state a
prima facie case in his complaint (meeting every element of the claim).
D. Pleading Special Matters: The Strong Inference Standard
-Tellabs, Inc. v. Makor Issues & Rights, LTD.- 2007
- FRCP 9(b) states that claims of fraud or mistake must plead with particularity the
circumstances constituting fraud or mistake, but claims of the defendants’ state of mind
(scienter) may be stated generally.
- This case deals with requirements stricter than those set out in FRCP 9, because the
statute governing this case imposes harsher requirements than the rule. The statute
requires BOTH claims of fraud AND claims of scienter be stated with particularity.
- In order for scienter allegations to survive the threshold inspection for sufficiency, a
court must engage in a comparative evaluation. It must consider, not only the inferences
urged by the plaintiff under a reasonableness standard, but it must also consider
competing inferences rationally drawn from the facts alleged, and determine the relative
likelihood of each being the case. The claimed inference must be more than plausibly or
reasonably the correct one, it must be COGENT and AT LEAST AS COMPELLING
as any opposing inference of nonfraudulent intent.
- Holding: The court must ask: (1) When the allegations are accepted as true and (2)
taken collectively, (3) would a reasonable person deem the inference of scienter at least
as strong as any opposing inference?
E. Alternative and Inconsistent Allegations
- Problem 6-B
- FRCP 8 permits alternative pleading, so a pleading cannot be construed as an
admission by a party. Thus, the defendant may not offer plaintiffs alternative pleading
- Alternative and Inconsistent allegations are allowed, because you may not know for
sure who is at fault, and if you only bring a claim against person B and find out person A
is responsible after the trial, you cannot bring a new claim against person A because of
claim preclusion. Also, if you know both A and B were at fault, but you don’t know who
caused it, bring a claim against both and the cause may come out at discovery.
F. Pleading Damages; Prayer for Relief
- When awarded default judgments, you may only be awarded the amount in your prayer
for relief, no more. However, an ordinary judgment may provide any relied to which one
is entitled, regardless of if they demanded it.
G. Rules Pleading: The Response to the Complaint
- The defendant can pursue three responses to a complaint: (1) Filing a preliminary
motion to dismiss by raising one or more procedural objections listed in FRCP 12(b)
(not including 12(b)(6)). (2) Attacking the complaint itself (Here is where FRCP
12(b)(6) comes into play. Alternative Rules that apply here are 12(e), 12(f), and 12(c)). (3)
Meeting the claim head on by filing an answer that would normally deny at least some
of the critical allegations in the complaint. This strategy also includes raising affirmative
defenses and counterclaims (against plaintiff or indemnitors).
- Rule 12: Defenses and Objections: When and How Presented; Motion for Judgment
on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(a) Time to Serve a Responsive Pleading: (1) In General: Unless another time is specified
by this rule or a federal statute, the time for serving a pleading is as follows: (A)
Defendant must serve an answer: (i) within 21 days after being served with the summons
and complaint; or (ii) if it has timely waived service under rule 4(d), within 60 days after
the request for a waiver of service was sent, or within 90 days after it was sent to the
defendant outside any judicial district of the U.S. (B) A party must serve an answer to a
counterclaim or crossclaim within 21 days after being served with the pleading that states
the counterclaim or crossclaim. (C) A party must serve a reply to an answer within 21
days after being served with an order to reply, unless the order specifies a different time.
(2) United States and its Agencies, Officers, or Employees Sued in an Official Capacity:
The U.S., a U.S. agency, or a U.S. officer or employee sued only in an official capacity
must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after
service on the U.S. attorney. (3) United States Officers or Employees Sued in an
Individual Capacity: A U.S. officer or employee sued in an individual capacity for an act
or omission occurring in connection with duties performed on the U.S.’s behalf must
serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service
on the officer or employee or service on the U.S. attorney, whichever is later. (4) Effect
of a Motion: Unless the court sets out a different time, serving a motion under this rule
alters these periods as follows: (A) if the court denies the motion or postpones its
disposition until trial, the responsive pleading must be served within 14 days after notice
of the court’s action; or (B) if the court grants a motion for a more definite statement,
the responsive pleading must be served within 14 days after the more definite statement
is served.
(b) How to Present Defenses: Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may assert the
following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal
jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of
process, (6) failure to state a claim upon which relief can be granted, and (7) failure to
join a party under rule 19. A motion asserting any of these defenses must be made
before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief
that does not require a responsive pleading, an opposing party may assert at trial any
defense to that claim. No defense or objection is waived by joining it with one or more
other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings: After the pleadings are closed, but early
enough not to delay trial, a party may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings: If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are to be presented to and not excluded
by the court, the motion must be treated as one for summary judgment under Rue 56.
All parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.
(e) Motion for a More Definite Statement: A party may move for a more definite
statement of a pleading to which a responsive pleading is allowed but which is so vague
or ambiguous that the party cannot reasonably prepare a response. The motion must be
made before filing a responsive pleading and must point out the defects complained of
and the details desired. If the court orders a more definite statement and the order is not
obeyed within 14 days after notice of the order or within the time the court sets, the
court may strike the pleading or issue any other appropriate order.
(f) Motion to Strike: The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its
own, or (2) on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading.
(g) Joining Motions: (1) Right to Join: A motion under this rule may be joined with any
other motion allowed by this rule. (2) Limitation on Further Motions: Except as
provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not
make another motion under this rule raising a defense or objection that was available to
the party but omitted from its earlier motion.
(h) Waiving and Preserving Certain Defenses: (1) When Some are Waived: A party
waives any defense listed in Rule 12(b)(2)-(5) by: (A) omitting it from a motion in the
circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion
under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by
Rule 15(a)(1) as a matter of course. (2) When to Raise Others: Failure to state a claim
upon which relief can be granted, to join a person required by Rule 19, or to state a legal
defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or (c) at trial. (3) Lack of Subject-Matter Jurisdiction:
If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action. (i) Hearing Before a Trial: If a party so moves, any defense listed
in Rule 12(b)(1)-(7)- whether made in a pleading or by motion- and a motion under Rule
12(c) must be heard and decided before trial unless the court orders a deferral until trial.
-(1) Filing a preliminary motion to dismiss:
- Problem 6-C
- (3) Failure to state a claim upon which relief may be granted may be asserted at most
points in the process. You are not prevented from raising it if you don’t raise it initially
as with the other 12(b) motions, because it is different in that it goes to the very heart of
the case. (4) Subject-Matter Jurisdiction may be raised at any and all times in the process.
However, it is preferable to have all possible objections raised together at the outset.
- Problem 6-D
- Err on the side of clarity with denials so plaintiff cannot screw you by striking your
general denial and making it appear you are admitting all other paragraphs not stricken.
- Gomez v. Toledo- 1980
- It has never been ruled that qualified immunity is relevant to the existence of the
plaintiffs cause of action. Qualified immunity is a defense and, as such, the burden of
pleading it rests with the defendant.
- You waive affirmative defenses if they are not in the responsive pleading, and the
burden of persuasion is on the party raising such defenses.
- Rule 13: Counterclaim and Crossclaim:
(a) Compulsory Counterclaims: (1) In General: A pleading must state as a counterclaim
any claim that- at the time of its service- the pleader has against an opposing party if the
claim: (A) arises out of the transaction or occurrence that is the subject matter of the
opposing party’s claim; AND (B) does not require adding another party over whom the
court cannot acquire jurisdiction. (2) Exceptions: The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending
action; or (B) the opposing party sued on its claim by attachment or other process that
did not establish personal jurisdiction over the pleader on that claim, and the pleader
does not assert any counterclaim under this rule.
(b) Permissive Counterclaim: A pleading may state as a counterclaim against an opposing
party any claim that is not compulsory.
(c) Relief Sought in a Counterclaim: A counterclaim need not diminish or defeat the
recovery sought by the opposing party. It may request relief that exceeds in amount or
differs in kind from the relief sought by the opposing party.
(d) Counterclaim Against the U.S.: These rules do not expand the right to assert a
counterclaim- or to claim a credit- against the U.S. or a U.S. officer or agency.
(e) Counterclaim Maturing or Acquired After Pleading: The court may permit a party to
file a supplementary pleading asserting a counterclaim that matured or was acquired by
the party after serving an earlier pleading.
(g) Crossclaim Against a Coparty: A pleading may state as a crossclaim any claim by one
party against a coparty if the claim arises out of the transaction or occurrence that is the
subject matter of the original action or of a counterclaim, or if the claim relates to any
property that is the subject matter of the original action. The crossclaim may include a
claim that the coparty is or may be liable to the cross-claimant for all or part of a claim
asserted in the action against the cross-claimant.
(h) Joining Additional Parties: Rules 19 and 20 govern the addition of a person as a party
to a counterclaim or a crossclaim. (i) Separate Trials; Separate Judgments: If the court
orders separate trials under rule 42(b), it may enter judgment on a counterclaim or
crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing
party’s claims have been dismissed or otherwise resolved.
- Valley View Angus Ranch v. Duke Energy Field Services- 2007
- Rather than attempt to define the terms “transaction” or “occurrence,” most courts
have suggested standards by which the nature of specific counter claims may be
determined. (1) Are the issues of fact and law raised by the claim and counterclaim
largely the same? (2) Would Res judicata bar a subsequent suit on defendant’s claim
absent the compulsory counterclaim rule? (3) Will substantially the same evidence
support or refute plaintiff’s claims as well as defendant’s counterclaims? (4) Is there a
logical relation between the claim and the counterclaim?
- Mueller thinks this court should have simply used the “Logical Relations” Test.
-Letourneau v. Hickey- 2002
- Claims have a logical relationship with one another if the same aggregate set of facts
serves as a basis for both claims, and the facts upon which the first claim arises triggers
additional legal rights in the defendant that would otherwise remain dormant.
- A defendant who defaults prior to answer or who submits to a consent judgment is not
barred from the requirement to raise a compulsory counterclaim.
- Mueller suggests this is an unfair result. The rule suggests a counterclaim will only be
lost if it is compulsory AND it is omitted from an answer in a prior suit. The
Letourneaus never filed an answer in the prior suit, so does it make sense to bar their
claim for procedural reasons now?
H. Plaintiff’s Response to the Defendant
- Plaintiffs file pleadings that respond to the defendant in certain situations: (1) plaintiff
must file an answer to a counterclaim designated as a counterclaim. (2) The plaintiff may
make a motion to strike to dispose of any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.
I. The Obligation to be Truthful: Sanctions Under FRCP 11
- Lawyers must sign their pleadings to certifiy that the lawyer believes, “after an inquiry
reasonable under the circumstances,” that the claims and defenses are warranted by
existing law or by a nonfrivolous argument for a change in the law, AND that the
allegations and contentions have evidentiary support or are likely to after discovery.
- A party may seek sanctions by motion against the opposing party if their pleadings are
not “objectively reasonable,” but the safe harbor rule/concept requires the party seeking
sanctions to serve the motion to the opposing party 21 days before filing it to give the
opposing party a chance to correct. The court may self-impose sanctions against a party
for misconduct that is “akin to contempt of court” after a “show cause” hearing, and no
safe harbor period of time is required to do so. See Rule 11.
- Three major sanction regimes exist outside of Rule 11: (1) Attorney Sanction Statute,
(2) PSLRA, and (3) the Inherent Authority of the Courts to deal with abuses of the
litigation process.
- Methode Electronics, Inc v. Adam Technologies, Inc.- 2004
- The court shouldn’t have awarded attorney’s fees, because it was imposing sanctions on
its own without the motion to do so made by the opposing party. However, this court
was not necessarily acting under Rule 11, but was exercising its inherent power to
control the proceedings before it and the higher court will affirm a grant of sanctions on
any basis supported by the record and the law.
-Mueller hates the result of this case.
- Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the
Court; Sanctions
(a) Signature: Every pleading, motion, or other paper must be signed by at least one
attorney or by a party personally if the party is unrepresented. The paper must state the
signer’s address, email address, and phone number. Unless a rule or a statute specifically
states otherwise, a pleading need not be verified or accompanied by an affidavit. The
court must strike an unsigned paper unless the omission is promptly corrected after
being called to the attention of the attorney or party.
(b) Representations to the Court: By presenting to the court a pleading, written motion,
or other paper- whether by signing, filing, submitting, or later advocating it- the
undersigned certifies that to the best of his knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances: (1) it is not being presented for any
improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law; (3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the denials or
factual contentions are warranted on the evidence or, if specifically so identified, are
reasonably based on a belief or lack of information.
(c) Sanctions: (1) In General: If, after notice and a reasonable opportunity to respond,
the court determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on an attorney, law firm, or party that violated the rule or is
responsible for the violation. Absent exceptional circumstances, a law firm must be held
jointly responsible for a violation committed by its partner, associate, or employee. (2)
Motions for Sanctions: A motion for sanctions must be made separately from any other
motion and must describe the specific conduct that allegedly violated Rule 11(b). The
motion must be served under Rule 5, but it must not be filed or be presented to the
court if the challenged paper, claim, contentions, defense, or denial is withdrawn or
appropriately corrected within 21 days after service or within another time the court sets.
If warranted, the court may award to the prevailing party the reasonable expenses,
including attorney’s fees, incurred for the motion. (3) On the Court’s Initiative: On its
own, the court may order an attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b). (4) Nature of a Sanction:
A sanction imposed under this rule must be limited to what suffices to deter repetition
of the conduct or comparable conduct by others similarly situated. The sanction may
include nonmonetary directives; an order to pay a penalty into court; or, if imposed on
motion and warranted for effective deterrence, an order directing payment to the
movant for part or all of the reasonable attorney’s fees and other expenses directly
resulting from the violation. (5) Limitations on Monetary Sanctions: The court must not
impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2);
or (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before
voluntary dismissal or settlement of the claims made by or against the party that is, or
whose attorneys are, to be sanctioned. (6) Requirements for and Order: An order
imposing a sanction must describe the sanctioned conduct and explain the basis for the
sanction.
(d) Inapplicability to Discovery: This rule does not apply to disclosures and discovery
requests, responses, objections, and motions under Rules 26 through 37.
J. Dismissals of Lawsuits
- If Plaintiff fucks up or changes their mind about bringing suit, he may dismiss his own
suit without prejudice if he moves to do so before the defendant serves an answer or
motion for summary judgment (and even after if the parties agree by stipulation). If
plaintiff fails to move for dismissal before defendant responds, the suit is dismissed with
prejudice and plaintiff cannot bring the suit again. Also, if plaintiff successfully dismisses
without prejudice and then brings the suit a second time, he no longer has the option to
dismiss without prejudice. Any additional dismissals will be WITH prejudice.
- Marex Titanic, Inc v. Wrecked and Abandoned Vessel- 1993
- The court here rejects a past ruling in the Harvey Aluminum case that denies what
should have been a proper dismissal because the parties have argued the merits and
substantial evidence has been introduced. The court says their task is to apply the text,
not to improve on it. The text allows dismissal where no response has been filed and,
even though the plaintiff is being deceptive here and deserves to be forced to continue
the litigation he has brought, no answer has been filed, so the court allows dismissal.
-Rule 41: Dismissal of Actions:
(a) Voluntary Dismissal: (1) By the Plaintiff: (A) Without a Court Order: Subject to the
Rules and Statutes, the plaintiff may dismiss an action without a court order by filing: (i)
a notice of dismissal before the opposing party serves either an answer or a motion for
summary judgment; or (ii) a stipulation of dismissal signed by all parties who have
appeared. (B) Effect: Unless the notice or stipulation states otherwise, the dismissal is
without prejudice. But if the plaintiff previously dismissed any federal- or state- court
action based on or including the same claim, a notice of dismissal operates as an
adjudication on the merits (dismissed with prejudice). (2) By Court Order; Effect: Except
as provided above, an action may be dismissed at the plaintiffs request only by court
order, on terms that the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff’s motion to dismiss, the action may
be dismissed over the defendant’s objection only if the counterclaim can remain pending
for independent adjudication. Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
(b) Involuntary Dismissal; Effect: If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action or any claim
against it. Unless the dismissal order states otherwise, a dismissal under this subdivision
(b) and any dismissal not under this rule- except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19- operates as an adjudication on the merits.
(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim: This rule applies to a
dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary
dismissal under Rule 41(a)(1)(A)(i) must be made: (1) before a responsive pleading is
served; or (2) if there is no responsive pleading, before evidence is introduced at a
hearing or trial.
(d) Costs of a Previously Dismissed Action: If a Plaintiff who previously dismissed an
action in any court files an action based on or including the same claim against the same
defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that
previous action; AND (2) may stay the proceedings until the plaintiff has complied.
K. Amending Pleadings
-Hedel-Ostrowski v. City of Spearfish- 2004
- In determining if an amendment relates back under Rule 15(c), the court relies on a
three-pronged analysis: (1) The claim asserted in the amended complaint “arose out of
the conduct, transaction, or occurrence set forth in the original pleading, (2) The new
defendant has received such notice of the institution of the action that he will not be
prejudiced in maintaining his defense on the merits, and (3) the new defendant knew or
should have known that, but for a mistake concerning the identity of the proper party,
the action would have been brought against him.
7. Shaping the Suit: Joinder of Claims and Parties
- In diversity suits, there is no supplemental jurisdiction in three cases: (1) Where there is
incomplete diversity. The statute does not alter the requirement for complete diversity.
That requirement stands. (2) Over parties that MUST be added under FRCP 19
(indispensable parties). WE must have a “whole” lawsuit before supplemental
jurisdiction kicks in. If a party is necessary to go forward with the suit, and there is no
original jurisdiction over him, the suit is not whole and he cannot be added under
supplemental jurisdiction. (3) Over counterclaims that are permissive but not
compulsory.
A. Status: Problems of Eligibility
- One must have standing to sue, meaning that one has suffered some particular harm
not generally suffered by everyone and must be a “real party in interest” (meaning I
cannot, as a plaintiff, bring a suit on my sister’s behalf for some wrong done to her
where I am the plaintiff and she is not involved in the suit).
- Justiciability within Standing to Sue refers to three main ideas: (1) Actual Controversy:
Courts do not answer legal questions or give advice, they decide cases or controversies.
(2) Ripeness: A court should only decide questions when they are current. This standard
relates to the fitness of the issues for judicial decisions and the hardship to the parties
that would result from the delay. (3) Standing: There are 6 considerations, 3 elements
and 3 factors: (a) There must be a claimant who has suffered an injury or is at imminent
risk of injury of a sort that is peculiar to him or her. (b) There must be a direct causal
connection between the defendant’s conduct and the injury. (c) The injury must be
redressable; Factors of prudential concerns: (i) A claimant must assert her own rights and
not the rights of someone else. (ii) Being a taxpayer or citizen is not enough to confer
standing on claims challenging government action. (iii) The claimant must be within the
zone of interests addressed by the statute or constitutional clause.
-Practically any adult can sue or be sued. Some exceptions include: minors cannot sue or
be sued. Incompetent persons cannot sue or be sued. Certain states have civil death
statutes that prevent incarcerated prisoners from bringing suit (though the exception to
this exception is that these prisoners may always sue to vindicate their constitutional
rights under 42 USC § 1983.
- Immunities from suit: State and Federal Governments are immune from suits under
the sovereign immunity doctrine, so you must either sue individuals working for the
government or you must have a written waiver of immunity (which typically comes from
statutes). You can also sue the government for an injunction. You can also sue federal
actors and offices under the Biven’s doctrine. You may also sue for proprietary torts
(ordinary torts- possibly against your property- committed by federal government
officials) but you may not recover punitive damages under the Federal Tort Claims Act.
- State immunities have a special resonance in federal court, because the 11th amendment
says no citizen can sue a state in federal court. BUT the Ex Parte Young case brought
about the stripping doctrine, under which you can sue a state officer in federal court and
obtain an injunction against him. The state is stripped of its immunity to the extent you
are suing an officer for infringing on your constitutional rights. You may only sue for an
injunction and may not sue for money damages. It is fine if the injunction and the suit
ends up costing the state money, as long as you are not receiving any money for it.
- SCOTUS has construed the 11th Amendment as authorizing Congress to pass statutes
that override the state’s immunity and allows for money damages to be recovered.
B. Joinder of Claims
- Joinder of Claims is typically permissive unless they arise out of the same case or
controversy. Even then it is only permissive and not compulsory to the extent that the
original suit may move forward without the joinder, but the party with the unbrought
claim will be precluded from bringing it in a future suit (That is how it is compulsory).
C. Joinder of Parties
- Permissive Joinder- FRCP 20: (1) Claimants may join as plaintiffs if they assert any
right to relief jointly, severally, or in the alternative so long as their claims arise out of the
same transaction or occurrence and they raise any question of law or fact common to the
other claims in the suit. (2) Defendants may be joined in a suit if claims are asserted
against them jointly, severally, or in the alternative if they arise out of the same
transaction or occurrence and if they raise any question of law or fact that is common to
the other claims in the suit.
- Rule 20- Permissive Joinder of Parties: (a) Persons who may Join or be Joined:
(1) Plaintiffs: Persons may join in one action as plaintiffs if: (A) They assert any right to
relief jointly, severally, or in the alternative with respect to or arising out of the same
transaction or occurrence, or a series of transactions or occurrences; AND (B) any
question of aw or fact common to all plaintiffs will arise of in the action. (2) Defendants:
Persons may be joined in one action as defendants if: (A) Any right to relief is asserted
against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction or occurrence, or series of the same; AND (B) any question of law or
fact common to all defendants will arise in the action. (3) Extent of Relief: Neither a
plaintiff nor a defendant need be interested in obtaining or defending against all the relief
demanded. The court may grant judgment to one or more plaintiff according to their
rights, and against one or more defendants according to their liabilities.
(b) Protective Measures: The court may issue orders- including an order for separate
trials- to protect a party against embarrassment, delay, expense, or other prejudice that
arises from including a person against whom the party asserts no claim and who asserts
no claim against the party.
- Fisher v. CIBA Specialty Chemicals Corp.- 2007
- A court may order separate trials for three reasons: (1) to avoid prejudice; (2) to
provide for convenience; or (3) to expedite the proceedings and economize the use of
resources (efficiency). However, the primary consideration must always remain the effort
toward a fair and impartial trial to all litigants through a balance of benefits and
prejudice.
- In determining if the claims arise out of the same transaction, look to see if there exists
a logical relationship among the claims.
-In determining if questions of law or fact are shared, note that only SOME questions of
law or fact must be common to all parties. The common questions even need not
predominate.
- Do I remember correctly that, because the decision on damages would differ so
substantially, the court would likely split the 5 plaintiffs up for the purpose of
determining damages for each individually rather than trying to decide 5 different
damage awards all at once?
- Carve at the joint. You can have two separate juries try the issues and then try the
damages, but you cant have one jury decide on reasonableness and one jury decide on
causation.
- Compulsory Joinder- FRCP 19: When a party has been omitted, ask: (1) Can complete
relief be provided to those already parties to the suit in his absence? (2) Would his
absence unfairly prejudice him? (3) Would his absence unfairly prejudice the parties
already involved with inconsistent judgments? If the answers to these questions point to
you needing a party in the suit, next ask “how serious are these risks? Can they be
accommodated w/o joinder of additional party?” What’ll it take to have a whole lawsuit?
- 3 steps to follow under rule 19: (1) Is the absent party necessary? Determine this by
asking the three questions mentioned directly above. Yes if any one of the three tests
apply. (2) Is joinder of the absent party feasible (Yes if the court can get good personal
jurisdiction over her; yes if her citizenship does not destroy complete diversity)? If not…
(3) Should the court dismiss or proceed without the party? In this determination, the
court will weigh three factors: (1) The extent to which any prejudice could be lessened or
avoided by: protective provisions in the judgment; shaping relief; or by some other
means; (2) Whether a judgment rendered in the person’s absence would be adequate; and
(3) Whether the plaintiff would have an adequate remedy if the suit were dismissed for
non-joinder. Courts rarely dismiss.
- Mastercard v. Visa- 2006
- The rule is interpreted very narrowly, because courts do not want to be forced to throw
out suits.
- It is necessary to show that any harm the suit will cause to the absent party is actually
caused by the party’s absence in the suit.
- Courts always enforce Rule 19 when the plaintiffs to be joined are all co-obligees to a
contract (not all co-obligors must be joined, only the breachers), and when real property
is the issue of the suit.
D. Impleader
- Accelerated liability. Defendant my bring a claim against a third party even if he has not
been found liable to the plaintiff yet. This rule is procedural.
- Yelin v. Carvel Corp- 1995
- In order to implead, there must be derivative liability (it’s not my fault it’s the
impleaded party’s fault – see (a)(1)). There wasn’t derivative liability here because
Y’s claim against C was independent from the plaintiff’s claim against Y. There are
two claims at issue: Plaintiff’s breach of contract claim against Y, and Y’s
misrepresentation claim against C. Even if C is guilty of misrepresenting, that doesn’t
mean C is liable to plaintiff for Y’s breach of contract. The outcome of the third
party claim must be contingent on the outcome of the main claim.
- A good reason to not allow just any related 3rd party to be impleaded is because in this
case, the Doolittles have an open and shut contract claim. If Carvel is brought in, much
of the case will turn on the outcome of Carvel’s liability to the Yelins and the Doolittles
will become bystanders in their own lawsuit.
- This is not a way to say “we didn’t do anything wrong!” it is a way to say, “yes, we are
responsible for the plaintiff’s loss, but our liability causing actions are the 3rd partys fault”
- Federal courts do have supplemental jurisdiction over impleader claims under rule 14
because they are claims by defendants against the new third-party defendant;
theoretically there’s just no supplemental jurisdiction if the plaintiff then tries to bring a
claim against the new third-party defendant, but they usually do not do this.
E. Interpleader
- Diversity is only required among the main claimants (minimal, not complete diversity).
-State Farm v. Tashire-1967
- Bringing the suits together would allow for an equitable distribution of the policy limit.
F. Intervention
- A party is an intervenor as of right if: he claims “an interest relating to the property or
transaction in suit and is so situated that the outcome of the suit might as a practical
matter impair or impede the outsider’s ability to adequately protect his interest unless
existing parties adequately represent that interest.”
- No supplemental jurisdiction for intervenors.
- Kleissler v. U.S. Forest Service- 1998
- Four requirements for parties seeking intervention as a right:
(1) a timely application for leave to intervene (resources will be wasted if we bring new
parties into the suit too late in the game);
(2) a sufficient interest in the litigation (the interest must be specific to the intervenor,
must be capable of definition, and must be directly affected in a substantially concrete
fashion by the relief sought);
(3) a threat that the interest will be impaired or affected by the disposition of this action
(pragmatism is a substantial factor- allow intervention by those who might be practically
disadvantaged by the disposition of the action; courts also like to be flexible; and they
look to see if the interest is direct and substantial); and
(4) inadequate representation of the intervenor’s interest by existing parties (If the
government is the existing party to be representing you, there is no reason to think they
will do so if the concern is not a matter of sovereign interest).
- In some states, intervenors need no standing or claims of their own to get involved in
the suit. In other states, they MUST have their own standing on which to sue.
- The interest at issue in FRCP 24 is more broadly construed than that in FRCP 19.
- Intervenors must have a direct, substantial, and legally protectable interest- something
more than an economic interest.
G. Class Actions
- All class actions must satisfy four requirements (FRCP 23(a)):
(1) Numerosity (so many claimants that joining them would be impractical);
(2) Common questions of law and fact;
(3) Typicality (class members and claims should all look similar); and
(4) adequate representation for the class (named plaintiff must fairly and adequately
protect interests of the class).
- Four different types of class suits:
(1) Incompatible Standards Class Suits (FRCP 23(b)(1)(A)): a class suit may be brought if
individual suits would create a risk of inconsistent or varying adjudications that would set
up incompatible standards of conduct for the party opposing the class.
(2) Limited Fund Class Suits (FRCP 23(b)(1)(B): a class suit may be brought if separate
suits by members of the class would dispose of the interests of other members or would
substantially impair or impede their ability to protect their interests. Example is that
there is only so much money to be distributed among plaintiffs and this money will be
inequitably distributed if their interests are not considered all at once.
(3) Unfair Treatment Class Suits (FRCP 23(b)(2)): a class suit may seek injunctive or
declaratory relief when defendant has acted or refused to act on grounds generally
applicable to the class. The two common types of suits brought under this class are (1)
discrimination suits against employers, and (2) institutional reform suits challenging
prison conditions and the conditions in mental health institutions.
(4) Common Question Class Suits (FRCP 23(b)(3)): A class suit can seek money damages
if it satisfies the central criterion requiring that common questions of law or fact
predominate and if a class suit would be superior to other available methods.
(BONUS CLASS TYPE) Hybrid Class Suits (FRCP 23(c)(4)): classwide treatment for
part of the suit but not the whole suit. “An action may be brought or maintained as a
class action with respect to particular issues.” So liability may be determined class wide,
while damages are determined according to each litigant.
- Class members are bound to the judgment; they cannot dispute settlement; they do not
need to appear; they are not subject to discovery and take no role in it; they are not
parties and have no control over the suit.
- For diversity purposes, you only look at the citizenship and amount in controversy for
the standard bearer, not the entire class.
- The certification process is required because it avoids a waste of resources, and it
allows the defendant to gauge the scale of his defense.
- Hansberry v. Lee- 1940
- The first class suit before Hansberry brings his suit did not include any
similar/representative parties. His claim was precluded under res judicata, but because he
was unrepresented in the class suit precluding his claim, the court says he is not barred.
-Allen v. International Truck and Engine Corp- 2004
- Certification is not a final judgment, so you should not be able to appeal it, but Rule
23(f) allows reviewing courts the discretion to take appeals on these decisions. This
allowance helps class suits go forward in a timely and proper manner.
- The type of class suit under which this claim is brought is the third type for unfair
treatment, which is used only for injunctive relief and does not provide for money
damages. The judge solves this by saying this case will be a hybrid class suit (bonus type)
in which the injunctive relief will be provided on a class basis, while the damages will be
determined on an individual basis.
- Certain 23(b)(2) suits allow for opt-outs in which the claimants opting out will not be
bound by the judgment and will not get to collect on the relief.
- Madison v. Chalmette Refining, L.L.C.- 2011
- The defendant appeals on the grounds of improper class certification, and it WAS
improper. The lower court did not examine the four requirements for every suit, nor the
two requirements for the common question suit (common questions predominate and a
class suit would be superior to other types of action). The higher court agrees this will
almost certainly qualify for class treatment, the case is quite clearly cut for class
treatment, but you can’t just say “well it looks like a class and talks like a class!” No. You
have to actually go through the evaluation of all 6 requirements, so go back and do that.
- The plaintiff should have provided a 3-phase trial plan to the trial court judge. This
might tell the court you will deal with (1) Tort Issues- liability (causation- was your
ailment caused by the coke dust, or by smoking, or by bad health?); (2) Individual Issueswas THIS plaintiff exposed? How greatly? Where was he? (3) Damages suffered and
specific ailments. The plan for handling the case requires a hearing where the judge
would hear testimony from each side, make findings, resolving some issues preliminarily,
and justifying his planned division of the case.
- Overlap of preliminary certification issues and those affecting the merits is inevitable.
Judges may use Lone Pine Orders as a tool to mitigate this. Lone Pine Orders tell the
plaintiff to come up with some kind of proof for the claims they are alleging.
HOWEVER, COLORADO PREVENTS SUCH A REQUEST. These requests are
viewed by many as unfair burdens on the plaintiff.
- CAFA reduces the diversity requirement. Only the standard bearer plaintiff needs to be
diverse from a SINGLE defendant, even if not diverse from other defendants, so long as
the aggregate amount in controversy is at least $5 million (the class as a whole in total).
- Anchem Products, Inc. v. Windsor- 1997
- You can’t compromise choice of law rules in class suits to make them easier to deal w/.
- You can create a class simply for the purposes of executing a settlement already
bargained for, but you must STILL certify the class with the four requirements even
though you do not intend to litigate. Ginsburg says it is so you will not be “disarmed,”
wherein the defendant decides to fuck you in the settlement and you can’t even fall back
on the possibility of litigation, because you never got your class certified.
- There is a big problem of adequate representation in this case. The same attorney
should not be representing plaintiffs whose injuries are immediate and require an
immediate payout for medical bills AND plaintiffs whose injuries are presently
asymptomatic and won’t be able to collect on unknown future injuries. It would have all
been cool if you had different representatives for different subclasses w/in the umbrella.
-In order to determine the fairness of the settlement, at a minimum you would need the
structural assurance of fair and adequate representation.
8. Pretrial Management and Discovery
- Pretrial is where you get the judge face to face with the two attorneys to nudge them in
the right direction, then the attorneys are completely responsible for managing the
pretrial orders. This helps the trial move forward as efficiently as possible.
- What judges do in pretrial is unreviewable.
- FRCP 16: Pretrial Conferences; Scheduling; Management
- Discovery is very expensive mainly for three reasons: (1) Attorneys use discovery
tactically to drive up costs and delay settlement or trial (attorneys will use it as a weapon
against the other party by making discovery so expensive that it would be cheaper for
them to settle than to expend the funds for discovery). (2) ESI. (3) Scope of litigation
has expanded, making issues more complex.
A. Phases of Discovery
- Four phases of discovery:
(1) Attorneys meet to discuss the case (must occur 21 days before pretrial conference).
(2) Automatic Discovery (Discovery of things likely to be required- see FRCP
26(a)(1)(A)(i) & (ii)- such as witnesses that disclosing party intends to call, and a list of all
the documents that party intends to use in the case).
(3) Parties conduct their own discovery (depositions, interrogatories, etc.).
(4) Deferred Automatic Discovery (Identity and Reports of experts you intend to call).
- FRCP 26: Duty to Disclose; General Provisions Governing Discovery
B. Scope of Discovery
- FRCP 26(b)(1): Any nonprivileged matter that is relevant to any party’s claim/defense
and is proportional to the needs of the case (not proportional if burden of production
outweighs potential benefits of the information; Relevancy is broadly construed- it need
not be admissible at trial.
-Problem 8-A
- Plaintiff claims wrongful death and loss of companionship, so Defense goes after her
old shrink records from when her mother died. Defendant wants to see how disturbed
she already was before the accident, so they can determine how much of her depression
is from the accident and how much is from prior life events. However, this information
would likely fall under the privilege rule in FRCP 26 which allows the court to estop this
type of discovery in order to protect a person from annoyance or embarrassment. A
claim for loss of companionship is not really putting your mental condition at issue
(doing so would relieve you of this privilege of confidentiality), so the request for these
records is outside the scope of this claim. Plaintiff has a right to expect privacy between
herself and her shrink; this is an invasion of her privacy and is not dispositive of her
sense of loss arising out of this accident.
- In wrongful death cases, they must determine how much money the person was worth
to you in determining damages. Thus, the defense requests the dead husband’s federal
income tax returns. He will likely never get these. He may argue they need these records
to determine financial losses, but tax returns contain much more sensitive information
NOT pertaining to financial positions (such as SSN #s, children, charitable donations,
mortgage interest, capital gains, medical deductions, etc.). Thus, it is more likely that the
court will redact all of this sensitive information from the file and release just the
financial info; or, alternatively, they may simply release the W2 forms from his employer.
- In a negligence claim, the Plaintiff would benefit greatly from old accident reports to
see if this type of accident has happened before with these vehicles. Plaintiff asks for all
prior accident reports involving vehicles manufactured by Ford in the last ten years. This
is far too broad. Yes, these reports are highly relevant to the client’s case, but you really
only need the reports for this specific make and model and only as far back as the faulty
part has been around (4 years). The defendant complains this request is unrealistic,
because they do not organize their records like this, and it would be an undue burden on
them. The court disagrees and says these records are of the highest importance to the
client’s case and, besides, Ford is the one that foolishy organized their own records so
poorly. That’s your own fault, and now you will pay the price for the burden you put on
yourselves.
- The trade secrets privilege does apply here, because the design of a product is the
quintessential trade secret. But, trade secrets are not an ABSOLUTE privilege. This
information is critical to the plaintiff’s defect claim, so it is the judges call. The defendant
would have to move for a protective order. He would have to prove that he has already,
in good faith, conferred with the opposing party to resolve the matter without the
court’s involvement, but the plaintiff refused to redact the request. The court will not
grant the protective order if the defendant did not already attempt to confer in good
faith. The judge would then consider if there is good cause to protect this information
under FRCP 26(c)(1)(G). If there is not good cause, the court would likely limit the
access by redacting any irrelevant information and then releasing the documents
SOLELY to the Plaintiff’s attorney who must swear to the secrecy of the documents,
and show them to no one except the plaintiff’s experts who are also sworn to secrecy.
C. Discovery Devices
- During a deposition, instruct your client not to answer ONLY when necessary. Don’t
stop the deposition because you think the questioning is improper, just voice your
objection on the record. Failure to object during the deposition does NOT waive your
right to object at the trial. If depositions had to follow all of the formalities of a trial, we
would never get through them. HOWEVER, if you fail to object to an unclear answer by
your client to a question, you DO waive your ability to object over that at trial.
- Problem 8-B
- If you are an out of state plaintiff (and you chose the forum in which you are bringing
the suit), you have to bring your witnesses with you into the forum for discovery and
trial. Their availability in the forum is your responsibility. However, if the non-party
witness is on the defendant’s side and they too live out of state, and you wish to depose
them, you must go to them. However, that means the defendant’s attorney also has to go
out of town for the depo, and he is expensive. The defendant (Ford) may decide it is
cheaper to pay to have his witness brought to his attorney than pay his attorney to go to
the witness.
- A subpoena is required when a litigant deposes a nonparty witness.
- Problem 8-C
- When answering interrogatories, if you object to a question, the other party can make a
motion to the court to compel you to disclose. The other party will have to include a
certification that he already called you and tried to work it out among yourselves before
getting the court involved. If he wins the motion, you will have to pay him the cost of
making the motion and the attorney’s fees for his time spent making the motion.
- If you wish to get documents from a nonparty, you can subpoena them for a
deposition with a subpoena duces tacem telling them to bring the documents with them
to the deposition. Then, under Rule 45(d)(2)(A) you can tell them “hey listen, I don’t
actually need to depose you, I just need the documents. If you just send me the
documents, then we’re good, and you don’t need to show up.”
- Rule 35 allows for court ordered physical and mental exams when the plaintiff has put
his mental or physical health condition at issue. If you want to see the results for your
client, you must, in exchange, turn over all of your relevant records for such conditions.
Requesting party bears the costs of the requested exams and gets to choose the doctor.
D. Work Product Protection
- Hickman v. Taylor- 1947
- Work Product is not discoverable. The decision of this case has been codified in Rule
26(b)(3). There is an exception to the limitations on work product if you can show two
things: (1) you have a substantial need for the information, and (2) the information is not
otherwise available. Mental impressions, conclusions, opinions, and legal theories are
NEVER discoverable, despite the exception.
E. Attorney-Client Privilege
- Privilege Rules are substantive for Erie purposes, and you must apply the state rule.
-Upjohn Co. v. U.S.- 1981
-Should attorney-client privilege for corporate clients extend to employees of the
corporation? Previously courts have applied a “control group” test, which says that only
upper management (guiding and integrating the several operations) can be said to
possess an identity analogous to the corporation as a whole. This case does away with
the control group test. The court says this test goes against the purpose of A-C privilege
and is vague (a privilege must be certain, or it offers no protection or assurance at all).
- This court looks to the purpose of the privilege (to facilitate the giving of information
to the lawyer to enable him to give sound and informed advice- people will not speak
freely if they fear for the discretion of what they are to say) and creates a new test.
- The Subject Matter Test asks if the communications concerned matters within the
scope of the employees’ corporate duties and if the employees themselves were
sufficiently aware that they were being questioned in order that the corporation’s
attorney could give them and the corporation adequate legal advice. Certain things will
support the assertion of the privilege: (1) the employee had information not available to
upper-management, (2) the information was needed to supply a basis for legal advice, (3)
the information lies within the scope of the employees’ corporate duties, (4) the
information is something that is considered highly confidential, (5) the company has
actually kept the information confidential, and (6) the employees were told to speak.
F. Discovery of Experts
- Problem 8-D
- FRCP 54(d)(1) allows for recovering costs of ordinary witnesses when you win a case.
- Colorado allows for “actual costs” spent in getting expert testimony. This is especially
abused in med mal cases in which the defense attorney can use the 100’s of thousands of
dollars in expert witness fees as a club with which to beat the plaintiff into submission
for a settlement because the plaintiff will be scared that if he loses at trial, he will
crumble under the burden of those expert witness fees.
- E.W. Overby- independent engineer defendants will call as an expert witness: This
witness must prepare a detailed report. Plaintiffs can depose him, but they will have to
pay the costs of taking his deposition. The witness must send his report to the plaintiffs
before the deposition takes place.
- E.W. Nye- employee of the defendant who does NOT usually testify as an expert, but
will be called as a witness in this case: This witness must also send a brief report to the
plaintiff, but it need not be as detailed as the other report. Because Nye is the
defendant’s employee, the defense attorney can prepare her brief report, and she need
not even sign it. The plaintiff can also depose this witness, and must pay for the costs in
deposing her. These witnesses must testify for their employer and are not being paid for
it, so their reports need not be nearly as elaborate as the others.
- E.W. Padget- independent engineer who will consult the defendants but will NOT
testify as a witness: This expert is not obliged to the plaintiff in any way. He need not
prepare a report for the witness, and the defense attorney need not even disclose his
name to the plaintiff. The plaintiff is generally not allowed to depose such a witness, but
he may do so if he can prove an extreme circumstance that shows he should be allowed
to depose the expert. If he does so, he must pay, not only for the deposition costs but
also, a fair part of the costs for the materials and work already paid for by the defendant.
- Unaffiliated Experts- those who made reports or conducted studies relevant to your
issue, but don’t wish to have anything to do with the trial: you may subpoena them to
testify, and they will have to comply. However, you will have to pay him his standard
experts fees, and he might be an unfavorable witness if you forced him into testifying.
- Experts who participate in or observe events- examples of these are the doctors who
were present but not participating during a surgery that is now at issue, or doctors who
were at the scene of an accident: They DO have to testify, and you do not have to pay
them anything more than statutory fees.
- Problem 8-E
- If you communicate in writing with your expert, you are waiving your right to claim
work product protection.
G. E-Discovery
- Race Tires America v. Hoosier Racing Tire Corp.
- E-Discovery is complex, costly, and extensive. There is a huge amount of data out
there. Typically, consulting firms are required to get everything out there.
- Data not reasonably accessible need not be provided. If E-data is lost or deleted
though, it will be presumed to have been adverse to the losing party by the jury.
-Zubulake -- THE case on e-discovery
Judge Shira Scheindlin- Who pays?
o Default rule = disclosing party pays the cost of finding the info requested by the
other side, and the requesting party pays its costs of making inquiry and dealing with
the results
o “Gigantic club” quote from McPeek à Court was troubled by fact that ordering the
producing party to bear all expense provides other side with “a gigantic club with
which to beat [the producing party] into settlement
o Introduced seven factor test to resolve the cost-shifting problem:
 Extent to which the discovery request is tailored to obtain relevant material
 The availability of such info elsewhere (First two are most important)
 Total cost of production compared to amount in controversy
 Total cost of production compared to resources available to each side
 Relative ability of each party to control costs and incentive to do so
 Importance of the issues
 Relative benefits to the parties from obtaining the info
- How much is discoverable?
o 26(b)(2)(B) - party need not provide discovery of ESI from sources that the party
IDs as not reasonably accessible because of undue burden – has to show undue
burden or cost and even if they do, court CAN still compel discovery if other side
shows good cause
o Types of info
o Online data - good
o Near line data - good
o Offline storage / archives - good
o Backup tapes - not good
o Erased, fragmented, or damage data - not good
-Retaining data / consequences of losing data
-Metadata is a way to address this -- can see who accessed, where, for how long, etc.
-Lawyer for party is responsible for telling party to not delete or change ANY relevant
info… one of the things that terrifies Colo lawyers
o But far more likely that court would sanction party that doesn’t retain underlying
info (not the lawyer)
-Consequences: 3 options
o 1. Ordering noncompliant party to bear a higher proportion of the costs of
making discovery
o 2. An instruction inviting jury to draw an adverse inference, from fact that
possibly relevant material had been lost, that this material would have supported
the other side
o 3. Shifting to the noncompliant party the additional costs incurred by the other
side in pursuing further discovery trying to find out what the lost data might
contain or suggest
-How would plaintiff know that responds to discovery request was incomplete?
o emails … (maybe someone forwarded one of the mean emails so she had a copy
of something that wasn’t produced)
-This is common à In McPeek, plaintiff also knew response was incomplete and judge
also ordered more discovery on harder to reach info …
H. Discovery Sanctions
- Ask for a document. You don’t get the document. Move for a court order compelling
disclosure (by simply showing: I asked for it, and they didn’t disclose it). If they still
won’t disclose, you have to sit down with them and try to work it out amongst
yourselves before involving the court. If the opposition STILL doesn’t produce the
document, then you may move for sanctions under FRCP 37(b)(2)(A). There are
seriously severe sanctions for disobeying a court’s direct order.
9. Summary Judgment and a Look at Burdens
- While preliminary motions scrutinize the pleadings to see if they adequately allege
claims or defenses, a summary judgment motion scrutinizes evidence of facts to see
whether there is any “genuine dispute as to any material fact.” For summary judgment
motions, the court looks at affidavits provided by the parties and the material generated
in discovery.
A. Burdens of Proof: A First Look
- Two burdens of proof: (1) the burden of producing evidence- burden of production,
and (2) the burden of persuasion. Typically, plaintiff bears the initial burdens, because
she is the one asking the court to do something.
- Fulfilling your own burden does not usually shift the burden to the defendant. Even if
you have offered sufficient proof, the jury can still choose to reject your proof and vote
in favor of the defendant, even if he offers no proof of his own. Exceptions to this are
when the evidence presented by the plaintiff is “cogent and compelling.” This means
that the evidence is so compelling, that the jury must presume the defendant’s liability
unless he can offer proof to offset the cogent and compelling evidence.
- Burden of Persuasion never shifts and comes in at the end (By a preponderance of the
Evidence- my story is more likely than not the truth).
- Three situations which allow for summary judgment:
(1) On motion by the Plaintiff (easiest and rarest type to obtain)
(2) On motion by the Defense that “the facts are on my side”: We both have evidence,
and the evidence clearly points to my story being the winning one.
(3) On motion by the Defense that “the plaintiff has no evidence”: The plaintiff bears
the burden of production and persuasion, and she has not fulfilled these burdens and has
not offered any evidence which could support her claim, so I am released from liability.
- Adickes v. S.H. Kress & Co.- 1970
- For the defendant to foreclose on the possibility that plaintiff’s claims have bearing,
they must present enough evidence that their innocence is cogent and compelling.
-If the defendant has not offered this proof on his own, you need not even look to the
sufficiency of plaintiffs evidence, because defendant bears the burden when he moves
for summary judgement. The defendant has to get to the 80 yard line on his own, then
you would look at the plaintiffs evidence to see if it offsets the defendants evidence at
all. If he only makes it to the 70 yard line, any evidence from the plaintiff will only set
him back farther, not push him over the 80 yard line. Thus, the plaintiffs evidence is
immaterial until the defendant proves he has met his own burden.
- Why do we shift the burden of proof to the defendant when plaintiff would be the one
to bear this burden at trial? Because otherwise everyone would move for summary
judgment and we worry about rulings being premature. Also, plaintiff might not have all
of his evidence yet and this could become an instrument used to harass the plaintiff. The
plaintiff would have to do a thorough job of previewing his case far before the actual
trial.
- Where the evidentiary matter in support of the motion does not establish the absence
of a genuine issue, summary judgment must be denied even if no opposing evidentiary
matter is presented.
- Celotex Corp. v. Catrett- 1986
- This case GREATLY reduces the burdens placed on the moving party by Adickes.
- Celotex Court says the defendants need not produce cogent and compelling evidence.
In fact, he may not need to produce any additional evidence. The court should be able to
make a decision based on the contents of the already existent evidence.
- A party seeking summary judgment always bears the initial burden of INFORMING
the district court of the basis for its motion and identifying those portions of the
pleadings, depositions, interrogatories, and admissions on file, together with the
affidavits (IF ANY) which he believes demonstrates the absence of a genuine issue of
material fact. Rule 56 includes no requirement that the moving party provide affidavits
so long as what is already before the court demonstrates that the standard for S.J. is met.
- The burden of the moving party is to show and inform the court of the lack of
evidence. The court will then look at BOTH plaintiff’s and defendant’s proof.
- Pros and Cons of S.J.- (1) For Judges: denials of summary judgment are not final orders
and cannot be appealed (Pro), while sustaining a motion for summary judgment is
appealable (Con), but at least it frees up the court’s docket (Pro). (2) For Defendants:
The settlement value of the case will drop greatly if your motion is denied (Con).
10. Trial and After: Entitlement to a Jury; Impaneling Juries; Post-Trial Challenges
A. Jury Trial Entitlement
- Traditionally, there were courts of law and courts of equity. Courts of law always used
juries, and courts of equity never used juries. The Federal Rules merged the two (law and
equity) into one court for efficiency purposes. There then became two questions in
deciding jury trial entitlement: (1) Is the claim comparable to a historic claim from pre-
1791 and, if so, is it a legal claim or an equitable claim? (2) What type of damages are
sought? If money damages- legal claim; if other damages like injunctive- equitable claim.
- Post-cases like Beacon Theatres and Dairy Queen, 3 Rules have emerged:
(1) Courts determine jury rights on an issue by issue basis.
(2) If a single issue of fact underlies both law and equity, then you get a jury.
(3) Generally, courts will try legal issues with a jury first and then try the equity issues.
The two suits will be brought as one and the court would issue a sequencing order
deciding which case should be heard before the other.
- Beacon Theatres, Inc v. Westover- 1959
- Issues common to both legal and equitable claims will be tried by a jury.
- Entitlement to a jury turns on the nature of the issue to be tried, rather than the
character of the overall action (Ross court).
- Chauffeurs, Teamsters, & Helpers, Local No. 391 v. Terry- 1990
- Formally adopts the two-part standard: (1) Look first to the closest historical cause of
action and ask if the current claim is legal or equitable based on the analogue. (2) Look
next at the nature of the rights and remedies sought after.
- This court admits that the second of these two considerations is likely the more reliable
and realistic of the two.
B. Controlling Juries: Judgment as a Matter of Law and New Trials
- JMALs are resolved by assessing the evidence actually produced at trial.
-Galloway v. U.S.- 1943
- The court gives us an idea of the type of evidence that would be sufficient. The
plaintiffs evidence is weak because it would be merely speculative if the jury decided on a
verdict in favor of the plaintiff on the basis of this evidence. Because he was being
sneaky and intentionally keeping out information on his activities for an entire 8 year
period, so we are more suspicious.
- New Trial Motions: Remittitur and Additur
- Biggest grounds upon which to move for a new trial is that the burden is against the
weight of the evidence.
- Problem 10-B
- If plaintiff accepts the remittitur, he cannot appeal the remittitur. Because remittitur is
not a final order, the defendant cannot appeal it either. The defendant would instead
appeal after the final judgment is entered, and then claim that not enough was lopped
off. If plaintiff denies the remittitur, he cannot appeal the judge’s order for a new trial
either, because THAT is not a final order. He would have to wait for the new trial to be
over, and then appeal on the initial order for a new trial.
-Problem 10-C
- Approve a JMAL but deny a new trial motion, because you are conflicted on an issue
of law not fact. A JMAL can be reviewed by a higher court and if the judge was wrong
on the legal matter, the JMAL will be reversed and the case will come back to its original
verdict. If there was no question on any evidentiary matter, then a new trial will not do
anything for you.
- Problem 10-D
-FRE 606(b) exists both to keep juries from being harassed by the losing party and to
maintain the confidence/privacy of what happens in the jury deliberation room.
-Additional allowance of impeachment for clear statements of racism.
12. Binding Effect of Judgments
A. Claim Preclusion
- A judgment has a res judicata effect in a later suit if (a) it is final, (b) it is on the merits,
(c) it resolves the same claim brought in the later suit (or a claim arising out of the same
transaction), and (d) the same parties are involved in both suits.
-Problem 12-A
- When a case is thrown out for lack of jurisdiction, it is thrown out without prejudice
(NOT on the merits), and it does not preclude a later suit.
- Manicki v. Zeilmann- 2006
- Fatal mistake was bringing both parties in both suits. Because the two suits arose out of
the same transaction, the second was barred by the first. Bring all of your claims at once!