TABLE OF CONTENTS
1. Personal Jurisdiction
a. In Rem
b. In Personam
a. Statutory Test
i. General Jurisdiction
ii. Specific Jurisdiction
b. Constitutional Test
2. Venue
3. Notice (Service) – FRCP 4
4. Subject Matter Jurisdiction
a. Federal Question - §1331
a. Well-Pleaded Complaint
b. Diversity Jurisdiction - §1332
a. Diversity
b. Amount in Controversy
c. Supplemental Jurisdiction - §1367
a. Allapattha
5. Pleadings
a. Complaint – FRCP 8
a. Grounds from SMJ
b. Short/Plain Statement of the Claim
c. Relief Sought
b. Response – FRCP 12
a. Defenses 12(b)
i. Lack of SMJ (Never Waivable)
* Waivable if
ii. Lack of PJ*
not used
iii. Improper Venue*
** Can use at
iv. Insufficient Process-Problem*
various times
throughout
v. Insufficient Service of Process*
court case
vi. Failure to State a Claim**
b. Answer
1. Admit
2. Deny
3. Lack of Knowledge
ii. Affirmative Defenses – FRCP 8 (Use or Lose)
c. Stop, Think, Investigate – FRCP 11
d. Amendments – FRCP 15
6. Discovery
a. Required Disclosures – FRCP 26
a. Initial Disclosures
b. Experts
c. Pretrial-Required Disclosures
b. Discovery Tools
a. Depositions – FRCP 30/31
- Subpoena
b. Interrogatories – FRCP 33
c. Request to Produce – FRCP 34
d.
e.
c. Scope
a.
b.
c.
d.
Medical Exams – FRCP 35
Request for Admissions – FRCP 36
of Discovery
Standard FRCP 26(b)(1)
Attorney Client Privilege
Work Product FRCP 26(b)(3)
Responding to Discovery Requests
i. Motions to Compel and Sanctions FRCP 37
7. Pre-Trial Adjudications
a. Motion to Dismiss (See Pleadings 5(b)(6))
b. Summary Judgment – FRCP 56
8. Trial
a. Judgment as A Matter of Law JMOL – FRCP 50
b. Renewed Judgment as A Matter of Law – RJMOL
c. Motion for A New Trial – FRCP 59(a)(1)
9. Joinder
a. Claim Joinder by P
b. Counter-Claim – FRCP 13(a), (b)
c. Cross-Claim – FRCP 13(g)
d. Permissive Joinder/ Proper Parties – FRCP 20(a)
Important Words and Definitions – Motion 4 Summary Judgment
Conclusory Allegations – allegations with no alleged facts to infer their plausibility
Important Words and Definitions – Trial
Additur – The increase by a court of the jury's award of damages which the court
deems insufficient
Remittitur – Allows a court to decide that the evidence does not support the damage
award decided by the jury
Important Words and Definitions – Subject Matter Jurisdiction
Concurrent SMJ – Case started off in state court but its final destination was federal
court
Well-Pleaded Complaint Rule – Plaintiff’s complaint must contain a federal question, a
defendant’s defense will not lead to a court having subject matter jurisdiction
NOTICE
Important Words and Definitions – Notice & Pleadings
Rules – Written by Supreme Court Justices - states general principles of practice and
procedure rather than dealing with their application in specific instances, similar to
statutes and the Constitution except they are not written by the legislature and they
cannot abridge, enlarge, or modify any substantive right.
Complaint (Declarations) – When the legal system uses governmental power to grant
plaintiff relief. Must be factual or based on a legal basis and cannot be brought for an
improper purpose.
Diversity of Citizenship – when two opposing parties within a lawsuit are citizens of
different states or countries.
Doctrine of equitable estoppel – a judicial doctrine by which a litigant may be
prevented, or "stopped," from raising an argument or a legal defense in a lawsuit.
- applied to prevent a party from taking advantage of the statute of limitations
where the plaintiff has been misled by conduct od such party
- Equitable remedies are generally nonmonetary
Defense – anything that defeats recovery (a denial of a critical allegation of a
complaint)
Affirmative Defenses – a legal defense where you have to show factual basis to show
why it’s true. Governed Under Rule 8(c)
Service + Waiver
Class Notice/Waiver Scenarios:
1. P serves D directly
- D has 21 days from service date to respond per FRCP 12(a)(1)(A)(ii)
2.
-
P requests waiver and D waives
D may wait up to 30 days per FRCP a(d)(1)(F) to accept waiver
D has 60 days from the waiver request date to respond per FRCP 4(d)(3)
Result is total of 60 days to respond regardless of when D accepts waiver
3.
-
P requests waiver and D refuses to waive
P must wait 30 days after request date to serve D formally per FRCP 4(d)(1)(F)
D has 21 days from service date to respond per FRCP 12)a)(1)(A)(ii)
Result is at least 51 days to respond if the defendant refuses to waive (Since you
would then have to formally serve the defendant)
Important:
- If a defendant decides not to waive then (either by not replying or by
specifically denying to waive) they have to pay the their own costs and the
plaintiff’s cost for denying the waiver of service.
FRCP Rule 4
(a) Contents; Amendments.
(1) Contents. A summons must:
Important list of what is included in a summons (complaint)
(2) Amendments. The court may permit a summons to be amended.
FRCP 4(b) Issuance (Expensive and Formal)
-
On or after filing the complaint, the plaintiff may present a summons to the
clerk for signature and seal.
- If the summons is properly completed, the clerk must sign, seal, and issue it to
the plaintiff for service on the defendant(s).
FRCP 4(c) Service
(1) The summons and complaint must be served within the time allotted under
4(m)
(2) By someone who is at least 18 years old and not a party within the complaint
(3) Plaintiff can request service be made by a Marshall or Someone Specially
Appointed
FRCP 4(d) Waiving Service (Inexpensive and Informal)
(1) Requesting a Waiver.
Important list of what is included in a summons waiver request to an individual
Requesting a Waiver for Corporate Defendants- See 4(h)
(2) Failure to Waive.
- Imposed penalties for a defendant within the US’ failure to waive without good
cause
(3) Time to Answer After a Waiver.
- If before being served with process and after timely returning a waiver a
defendant has until 60 days after the request was sent to serve an answer to the
complaint - or
- 90 days if sent outside of a US judicial district
(4) Result of Filing a Waiver.
- Proof of service for waivers are not required. This rule applies as if a summons
and complaint have been filed at the time of the waiver.
(5) Jurisdiction and Venue Not Waived.
- Waiving service does not waive personal jurisdiction or venue objections
FRCP 4(e) Serving an Individual Within a Judicial District of the United States
(1) Follow state law for serving a summons in an action brought in courts of
general jurisdiction; or
(2) Doing any of the following:
(A) Deliver copy of summons + complaint to individual personally
(B) Leave a copy of summons + complaint at individuals home with someone
18+ and discretion who also resides in the home
(C) Leave a copy of summons + complaint with agent authorized by law to
receive service of process.
Remaining RULE 4 Sections:
FRCP 4(f) Serving an Individual in a Foreign Country
FRCP 4(g) Serving a Minor or an Incompetent Person
FRCP 4(h) Serving Corporation, Partnership, or Association
FRCP 4(i) Serving the United States and its Agencies, Corporations, Officers or Employees
FRCP 4(j) Serving a Foreign, State, or Local Government
FRCP 4(k) Territorial Limits of Effective Service
FRCP 4(l) Proving Service
FRCP 4(m) Time Limit for Service
FRCP 4(n) Asserting Jurisdiction over Property or Assets
PLEADINGS
Pleadings allow the other party to ask the court, via a motion, for blueprints on the
next steps in litigation.
Overview
Plausibility Standard (Twombly)
Types of Pleadings 7(a)
What is in a complaint 8(a)
Defenses 8(b)
Affirmative Defenses 8(c)
Sanctions Rule 11
Defenses and Objections Rule 12
Pre-Answer Motions
Amendments Rule 15
Twombly - Pleading Plausibility Standard
The court is saying: Show me, don’t just tell me!
Obliges a pleader to amplify a claim with some factual allegations in those contexts
where such amplification is needed to render the claim plausible. NO CONCLUSORY
ALLEGATIONS alleged within a complaint are measured under the Plausibility
Standard.
FRCP Rule 7 – Pleadings Allowed; Form of Motions and Other Papers
7(a) – Pleadings
(1) Complaint
(2) Answer to a complaint
(3) An answer to a counterclaim designated as a counterclaim
(4) An answer to a cross-claim
- When you as a defendant, have a complaint to make against another
defendant. You do not have to file a separate complaint since you can
include it in your answer to the original complaint
(5) A third party complaint
- When a defendant files a complaint against someone else bringing them into
existing litigation
(6) An answer to a third party complaint
(7) If ordered by the court, a reply to an answer
7(b) – Motions and Other Papers
(1) In General. A request for a court order must be made by a motion.
The motion must:
a. Be in writing unless made during a hearing or trial
b. State with particularity the grounds for seeking the order (legal basis)
c. State the relief sought (what you want)
(2) Form. The rules governing captions and other matters of form in pleadings
apply to motions and other papers
Rule 7.1 Disclosure Statement
(a) Who must File; Contents
(b) Time to File; Supplemental Filing
FRCP Rule 8 – General Rules of Pleading
How are answers usually given?
- The defendant denies all or some of the plaintiff’s allegations or, if the after
reasonable investigation the defendant does not know if an allegation is true,
he may deny the allegation. FRCP 8(b)
- The defendant asserts defenses that will wholly or partially defeat plaintiff’s
claim. FRCP 8(c)
- The defendant may also assert a claim against the plaintiff that would
entitle him to relief. Must be asserted in a defendant’s answer or else it
cannot be used. FRCP 13
**Answers must respond to all elements of a complaint, and do not have to state a
basis for immediate relief unless they contain a counterclaim or crossclaim**
Rule 8(a) Complaint Contents
1. Short and plain statement for the grounds for the court’s jurisdiction
Important Note: Federal Courts have limited jurisdiction, state courts typically do not
since they are courts of general jurisdiction.
2. A short and plain statement of the claim showing that the pleader is entitled to
relief. (Subject to Plausibility Analysis in Iqbal if not met then subject to
12(b)(6))
Important Note: This is known by the courts to be something that gives a defendant
fair notice of the plaintiff’s claim and the grounds upon which it rests.
3. Prayer for Relief - demand for judgement for the relief sought
What is required in a complaint (short and plain statement of the claim) 8(a)(2) ?
1. Date of incident
2. Parties involved in the incident
3. Injuries and damage suffered by the plaintiff
Rule 8(b) Defenses; Admissions and Denials
(1) General: when 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
Important Note: You have to admit or deny what you know based on your own
personal knowledge. If your friend happens to be a witness and it confirms a
fact that you were originally unaware of, you don’t have to admit to something
that you previously didn’t know.
(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 contends in good faith to deny all
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.
Important Note: The defendant denies all or some of the plaintiff’s allegations
or, if after the reasonable investigation the defendant does not know if an
allegation is true, he may deny the allegation.
o The defendant usually admits some of the facts of the complaint (i.e.
names and citizenship of the parties.) If they don’t they could find
themselves as a defendant in a Rule 11 dispute for denial of major
operative allegations and simply factual statements which should not be
denied if true.
(4) Denying Part of an Allegation: You have to walk through the allegations and
admit the parts that are 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: Any allegation that is not denied is deemed
admitted unless the allegation relates to damages
Rule 8(c) Affirmative Defenses
**The defendant has the burden of pleading**
(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;
discharge in bankruptcy;
duress;
estoppel;
failure of consideration;
fraud;
license;
statute of frauds;
illegality;
payment;
statute of limitations;
and
injury by fellow servant;
release;
waiver
laches;
res judicata;
Remaining RULE 8 Sections:
FRCP 8(c)(2) Mistaken Designation
FRCP 8(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency

In General – each allegation must be simple, concise, and direct, no technical form is required

Alternative Statements of a Claim or Defense

Inconsistent Claims or Defenses – A party may state as many separate claims or defenses as it
has, regardless of consistency
FRCP 8(e) Construing Pleadings

Pleadings must be construed so as to do justice
FRCP Rule 10 – Form of Pleadings
(a) Caption; Name of Parties
Captions include the courts name, a title, a file number, and a Rule 7(a) designation. It must name all the
parties, the title of other pleadings, after naming the first party on each side, may refer generally to other
parties.
(b) Paragraphs; Separate Statements
A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading….
(c) Adoption by Reference; Exhibits
A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other
pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for
all purposes.
-
FRCP Rule 11 – Pleadings Rule of Good Faith
Stop, Think, Investigate, and Research before filing papers to initiate a suit or to
conduct the litigation. What responsibilities does a lawyer bear to her client and the
law during the pleading stage?
Purpose of Rule 11:
To deter baseless claims and to set out the requirements for an ethical pleading
Requirements under Rule 11:
- Applies to Answers and Complaints - It requires that you plead fairly, in
good faith, and in a manner that is reasonable to the circumstances prior to
filing a complaint. It requires that you have some reasonable basis for
making your claims or for the assertions in your answer to a complaint.
Class Notes on Sanctions:
- The court does not have to impose any sanction for a violation of Rule 11. (The
rule says the court "may" impose a sanction.
- To determine whether Rule 11 has been violated, courts apply an objective
standard of reasonableness. (Established in Walker pg. 412)
- Rule 11 permits the district court to sanction an attorney for conduct regarding
“pleadings, written motions, and other papers” that have been signed and filed
in a given case. Conduct in depositions, discovery meetings of counsel, oral
representations at hearings, and behavior in prior proceedings do not fall
within what can be sanctioned in Rule 11.
FRCP 11(a) – Signature
- Rules governing signatures of pleadings, written motions, etc.
CALI Note: Failure to sign does not immediately lead to consequences, if you fail to
sign and then refuse or fail to sign even when the issue is brought up, the
court must strike that paper.
FRCP 11(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—an attorney or unrepresented party
certifies that to the best of the person's 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 (Attorney Obligation);
- Requires an objectively reasonable claim under the circumstances
(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
CALI Note:
Suppose you file a complaint based on precedent in your circuit upholding a claim.
However, one week after you file the complaint the United States Supreme Court rules
that your legal theory is not valid. If you do not amend your complaint in response to
that ruling, are you in violation of Rule 11(b)(2)?
- Rule 11(b)(2) measures your responsibility at the time the paper is filed. Since,
at the time, your complaint was not legally unfounded, it does not become a
violation by later legal developments.
(Remember Iqbal there is still a plausibility test which could be used against your
claim under 12(b)(6))
(4) 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 (Does not require absolute proof); and
CALI Example:
Suppose in the previous question, the client had come to you the day before the
statute of limitations was to expire. That afternoon, you draft a complaint and you file
it the next day. Would that make any difference in terms of a possible violation of Rule
11(b)(3)?
- Rule 11(b) requires "an inquiry reasonable under the circumstances." If the client
comes to you at the very last minute, the type of investigation required will be
different than if she had come to you long in advance of the expiration of the
statute of limitations. This does not mean you have no obligation to check out
the client's story if time permits--but the obligation does vary with the
circumstances.
(5) The denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information.
CALI Examples of What is Sanctionable:
- if a party presses the attorney to file a questionable paper for the purpose of
harassing an opponent - evidence of improper purpose
- where a defendant filed a removal petition after the time period for removal had
expired, for the purpose of disrupting the state court proceedings - evidence of
improper purpose
FRCP 11(c) – Sanctions
- Safe Harbor Provision – Requires a party to first serve his opponent with
sanctions, then give the opponent 21 days to fix the error prior to a party
serving a motion for sanctions under Rule 5.
FRCP 11(c)(5) Limitations on Monetary Sanctions
Represented parties cannot be responsible for monetary sanctions on a Rule 11(b)
violation. Their lawyers are!
When can district courts impose sanctions based on its inherent authority?
The district court must make an explicit finding that counsel’s conduct constituted or
was tantamount to bad faith.
Appropriate Procedural Opportunities for someone looking to impose a Rule 11
sanction:
- Notice
- Serve the motion (must show proof for if and when you file the motion) –
Allows the chance to withdraw/correct the pleading prior to filing official
motion (21 day requirement “Safe Harbor Provision”)
- File the motion (if needed)
- The opportunity to respond to charges (Only applies to court sanction
motions)
Move when ready!
CALI Examples:
Suppose you serve and file a motion to dismiss. The court grants the motion. The day
after the court grants the motion, you serve a Rule 11 motion. Twenty-one days later,
you file the motion. Is this a proper procedure?
- Although you did wait 21 days from the time you served the Rule 11 motion
until the time you filed it, because you waited until the court dismissed the
action to serve the motion, you defeated the purpose of the safe harbor
provision. The idea is that the opposing party is supposed to have a period
of time to correct the problem before a Rule 11 motion is filed. Here,
because the action had already been dismissed, the opposing party had no
opportunity to correct the problem before the dismissal. Therefore, the Rule
11 motion in this case was untimely and should not be granted.
Important: If you serve the Rule 11 motion around the same time that you file a
motion to dismiss, you take a risk that the court may decide your dismissal motion
before the end of the safe harbor period, thus mooting your Rule 11 motion.
FRCP Rule 12 – Defenses and Objections: When and How
Presented
Rule 12(a) Time to Serve a Responsive Pleading
Repeats Timing under Rule 4
Rule 12(a)(1)(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.
Rule12(a)(1)(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.
Rule 12(a)(4) Effect of a Motion
Unless the court sets a different time, serving a motion under this rule alters these
periods (Rule 4 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 actions,
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.
Important: Stops the allotted time given to a defendant to answer a
complaint against them
Rule 12(b) Defenses a Defendant can Assert as an Answer or a PreAnswer Motion Against a Plaintiff’s Pleading:
Requires that a pleader provide a more definite statement of their claim.
- All motions under this Rule do not require that a defendant answer whether or
not the claims against them are true, instead they essentially mean that the case
has another defect that should cause the court to dismiss the claim before the
defendant answers.
Defense Waiver Rules:
1. Use or Lose – must be raised in first response or waived 12(b)(2) – (5)
2. Not Waivable Through Trial 12(b)(6) – 12(b)(7)
3. Never Waived 12(b)(1)
12(c) is the mechanism for asserting 12(b)(6) or other non-waiverable motions that
you’ve preserved.
Rule 12(b)(1) – “Not Here” Lack of Subject Matter Jurisdiction SMJ (nonwaivable
Rule 12 defense)
- Court lacks the power to hear this case
Diversity jurisdiction – gives U.S. Federal Courts the power to hear a case or exercise
authority over disputes that do not involve a federal question.
When is diversity jurisdiction granted:
 When the members of all parties are not from the same state
 When the amount of damages exceeds $75,000
Rule 12(b)(2) – Lack of Personal Jurisdiction (defenses subject to waiver under
12(h)(1))
Argument that the suit should not be in this particular court or this state
CALI NOTE:
- A court may lack personal jurisdiction if the service of process was not
authorized under the applicable long-arm statute, or it would violate the
constitution for the court to assert personal jurisdiction over the defendant.
- If you’re the moving party and you raise a 12(b)(2) motion but it is denied,
you have to wait until after the trial to raise it again. If you don’t raise it in
your pre-trial motion you lose it!
Rule 12(b)(3) “Wrong district court” Improper Venue (defenses subject to waiver
under 12(h)(1))
The plaintiff was not authorized under the applicable venue statute to file the claim
in this district
Rule 12(b)(4) Insufficient Process (Violates Rule 4) (defenses subject to waiver
under 12(h)(1))
Summons is defective. Typically made only when the statute of limitations has
expired.
CALI NOTE: Fails to include all required elements of a summons necessary under Rule
4(a). If the court dismisses the claim on this basis, the plaintiff can usually re-serve the
defendant with a proper summons, or move to amend the summons pursuant to Rule
4(a)(2)
Rule 12(b)(5) – Insufficient Service of Process (Violates Rule 4) (defenses subject
to waiver under 12(h)(1))
- Service is defective (was served to 8 y/o child of the parent summoned)
Rule 12(b)(6) “So what” Failure to State A Claim Upon Which Relief Can
Be Granted (nonwaivable Rule 12 defense)
-
Allegations don’t state a cause of action
When Rule 12(b)(6) motion to dismisses are granted by a federal court, a state
court is bound to respect the judgement of the federal court
CALI NOTE:
- a claim dismissed pursuant to Rule 12(b)(6) cannot normally be refiled or
amended unless the court specifies that the dismissal is "without prejudice”
- Defense that plaintiff failed to plead an essential element of the cause of
action.
- This defense could be asserted either as a 12(b)(6) motion or as 12(c) motion
after the pleading stage depending on whether or not defendant has already
filed an answer.
Twiqbal Plausibility 12(b)(6) Standard
Does not look at evidence, only looks at the face of the complaint in question
1. Ignore “legal conclusions” or “conclusion of law” and look only at the
allegations of fact (ex: the defendant was negligent with his driving)
2. Assess plausibility of remaining allegations
3. Apply “judicial experience and common sense” to assess plausibility of
remaining factual allegations
Issue statement for a demur/ FRCP 12(b)(6):
Whether, assuming the pleading facts are true, the law provides any remedy?
- Twiqbal Plausibility Standard makes you lose on a 12(b)(6) motion
A Demur Does Two Things:
1. It admits, for the purpose of the motion, that all the alleged facts in the
complaint are true
2. States that even if all the facts are true, the law grants no legal remedy for what
is being alleged
Question: When should a court grant a demur and dismiss a complaint based on
failure to state a claim upon which relief can be granted?
Answer:
- When there is not a fair notice of the grounds of entitlement to relief
-
When it is clear (beyond doubt) that the plaintiff can’t prove “any set of facts in
support of his claim which would entitle him to relief.”
Question: Defendant moves to dismiss under 12(b)(1) for lack of subject-matter
jurisdiction. The motion is denied. Defendant then moves after pleadings under Rule
12(b)(6) for failure to state a claim. Assuming the complaint fails to state a claim, the
court will:
Answer:
- Although the defense of failure to state a claim is not waivable, you cannot make
more than one pre-answer motion. Therefore, Pursuant to 12(h)(2), by asserting a
12(b)(1) in your pre-answer motion without including a 12(b)(6) defense with it,
12(b)(6) can now only be made again in a 12(c) motion made after pleading, or at
trial.
In other words, defendant had only one opportunity to make a pre-answer motion
during the pleading. By omitting the 12(b)(6) defense from it, defendant must first
answer before asserting that defense again.
When can 12(b)(6) and 12(b)(7) be asserted:
1. Once during pleadings
2. Once after pleadings 12(c) motion
3. At trial
Rule 12(b)(7) – “Someone’s Missing” Failure to Join a Rule 19 Party (nonwaivable
Rule 12 defense)
- A necessary party is missing
FRCP 12(c) Motion for Judgement on the Pleadings (After pleading motion
and can be used by both parties)
Defense that plaintiff failed to plead an essential element of the cause of action.
Occurs after the pleadings are closed – but early enough not to delay trial – a party
may move for judgement on the pleadings. Enforced when discovery would be
useless.
 When both parties agree that the relevant facts of the case are true but
the applicable law is in question.
Example: Someone sues another but the statute of limitations for their complaint has
run out.
CALI NOTES:
- This defense could be asserted either as a 12(b)(6) motion or as 12(c)
motion depending on whether or not defendant has already filed an answer.
- As with a 12(b)(6) motion, if either party relies upon matters outside the
pleadings, the court will treat the motion as one for summary judgment
pursuant to Rule 12(d).
A party looking to apply Rule 12(c) must convince the court that they satisfy:
- “When justice so requires” Rule 15(a)
- Satisfies the requirements of Rule 15(c)
FRCP 12(d) Result of Presenting Matters Outside the Pleadings
CALI NOTE: Pursuant to Rule 12(d), "if, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.
FRCP 12(e) “What” Motion for a More Definite Statement (can be asserted by both
parties, defense to a complaint, counterclaim, and crossclaim)
- When a defendant asks a plaintiff to make more “definite and certain” his
contentions. (Serves as a form of discovery during pleading)
FRCP 12(f) “This one’s no good” Motion to Strike (can be asserted by both parties)
Common Use: Allows a party to challenge a part of a pleading that there is no
legal basis for. Even though the rest of the pleading states a claim or defense.
 Acts like a Rule 12(b)(6) motion directed to a single allegation, or
cluster of allegations, rather than to the whole complaint.
Uncommon Use: Forces removal of irrelevant and prejudicial allegations in a
pleading.
 Used to strike motions that have no relation to the case or are
unnecessarily confusing.
 The decision to strike under this context depends on if the allegations
would prejudice the plaintiff (using by reading their pleadings to the
jury), if so, whether limiting instructions will be given. Good examples
on pg. 425
CALI NOTES:
- The 12(f) motion is the first opportunity for plaintiff to challenge an inadequate
defense. Of course, if the elimination of that defense from the litigation would
result in a judgment for plaintiff, the plaintiff can also move for a judgment on
the pleadings under Rule 12(c).
- Rule 12(f) is particularly useful when the elimination of the challenged defense
would not result in a judgment for plaintiff. Example: Imagine that defendant
has denied violating defendant's rights and has also asserted a statute of
limitations defense. Since eliminating the statute of limitations defense would
not result in a judgment for plaintiff -- the court would still need to decide
whether defendant violated plaintiff's rights -- plaintiff's 12(c) motion for
judgment on the pleadings would be denied. However, she could strike the
particular statute of limitations defense on a Rule 12(f) motion and would
thereafter be relieved from the obligation to prove the timeliness of the action.
- A motion to strike must be made within 21 days of when the moving party has
been served with the offending pleading. However, the court has the authority
under Rule 12(f)(1) to strike on its own initiative at any time.
FRCP 12(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.
CALI NOTES:
Consequences for failing to consolidate motions under Rule 12(g):
- a party may be constrained from making another pre-answer motion under Rule
12, pursuant to Rule 12(g)(2); and
-
the party may waive the omitted defense altogether, pursuant to Rule 12(h). In
the event of a waiver, the defendant may not assert that defense at all in the
litigation.
FRCP 12(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
12(b)(6), to join a person required by Rule 19(b), or to state a legal defense to a
claim 12(f) may be raised:
 in any pleading allowed or ordered under Rule 7(a);
 by a motion under Rule 12(c); or
 at trial
CALI NOTE: In short, the Rule permits only one pre-answer motion under Rule 12(b). If
the pre-answer motion fails, the next time a defendant can assert a nonwaived defense
is after filing an answer.
(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.
Pre-Answer Motions
A pre-answer motion can end a case
The Pre-Answer Motion Class Notes:
- If a defendant’s response to a plaintiff’s complaint is a pre-answer motion then
the court must decide the pre-answer motion. By asserting a pre-answer motion
as opposed to the answer, the defendant is extending the time in which the
defendant responds to a complaint with an answer.
- If the defendant does not make a pre-answer motion or if the court denies a preanswer motion, the defendant must then answer. See FRCP 7(a) and 12(a)
-
Types of Pre-Answer Motions:
See 12(b)(1) – Lack of Subject Matter Jurisdiction It does not belong in federal
court (subject matter jurisdiction)
See 12(b)(6) – Failure to State A Claim Even if the facts of the complaint are
true, under the substantive law, plaintiff has no right to relief (move to dismiss
on the ground that the complaint fails to state a claim upon which a relief can
be granted)
- See Rule 12(b)(7) – “Someone’s Missing” Failure to Join a Rule 19 Party
How are Motions Under FRCP 12(b) Decided?
Motions are decided “on the papers”
without any oral hearing and the judge simply issues a ruling COMMON
Motions are read beforehand and decided based on an oral hearing
or based the judge asking each lawyer questions about aspects of the case not clear
from the papers. The judge may decide the ruling then or reserve her decision based
on further research or thought.
Motions are given a tentative ruling by a judge
based on the papers submitted and are given to each lawyer involved in the case when
they arrive for the hearing in which the judge allows the losing party to argue against
the tentative ruling.
**Motions do not have to respond to all portions of a complaint and must state a
basis for immediate relief**
Answer
Responds to a complaint paragraph by paragraph
Role of the Answer:
1. Identify disputed issues:
Admit or deny factual allegations; 8(b) - In terms of substance you need to know the
Rule 8(b) is that you either confirm, deny, or say that you don’t know.
2. Raise defenses:
May raise 12(b)(1), 12(b)(6), or 12(b)(7) defenses
Must raise any affirmative defenses; 8(c) – a legal defense where you have to show
factual basis to show why it’s true
3. Raise additional matters:
Counterclaims
Crossclaims – you must allege that there is some legal basis that you can sue the other
defendant for
Third-party claims
Rule 15 – Amended and Supplemental Pleadings
Allows revisions to a party’s original story and limits the extent and timing of such
changes in the plot lines.
Amendments
Ray Exam Note: On the exam, even if it’s obvious that you’re outside of the
amendment period based on timing then you tell him that and continue on with the
prejudice and bad faith argument but make sure you mention that even though it’s
outside of the amendment period, this would be your argument.
15 (a) Amendments Before Trial
Permits amendments freely when necessary
(1) Amending as A Matter of Course. Party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it
Class Basic Rule: Allows 1 liberal amendment (wide latitude) without the
permission of the court or the other party on an answer (without an affirmative
claim (cross or counterclaim)) pleading within 21 days after serving it.
(B) If the pleading is one in 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), whichever is
earlier
Class Basic Rule: Allows 1 liberal amendment without the permission of the
court or the other party on complaint, crossclaim, or counterclaim pleadings.
(2) Other Amendments. In all other cases, a party can only be granted an
amendment if:
- they receive the other parties written consent or
- if the court deems it necessary by granting a leave to amend
(3) Time to Respond. Unless it is ordered otherwise, any required response to an
amended pleading must be made:
- within the time remaining to respond to the original pleading
- within 14 days after service of the amended pleading. Whichever is later.
15 (b) Amendments During and After Trial
Permits amendments freely when necessary but limits them requiring that there be a
pretty good reason to do so.
15 (c) Relation Back of Amendments
Deals with amendments that add a new claim or party after the statute of limitations
has run.
- Gives plaintiff’s leeway to name new parties or claims after the statute of
limitations. I.e., It allows an amended pleading to be treated as thought it was
filed on the date of the original pleading.
Court Leave to Amend Granting Standard:
Generally, the trial court has broad discretion to grant a leave to amend. Unless there
is an abuse of discretion. I.e.,
- Evidence of bad faith found in the cases record
- Evidence of prejudice – puts the other side at a substantial disadvantage and
it is something that cannot be cured through additional process
- Evidence of undue delay found in the record
Questions that Help Weight A Court Granting A Leave To Amend:
1. To what extent will this prejudice (actually going to put the other side at a
disadvantage) the other side? (Prejudice)
2. Were you lazy or incompetent? (Undue Delay)
3. Are you trying to take advantage of the other party by having waited to
amend (i.e., run out the statute of limitations)? (Bad Faith)
4. Is this the first time you’ve tried to amend? (Undue Delay)
5. Do you have a good reason to amend?
**If you’re asked whether or not to allow the amendment, you have to think what**
allowing the amendment would do to the case and if there are other alternatives;
i.e., What is this going to mean in terms of what the amended pleading requires for
discovery.
Amendments Recap:
Timing:
1. Is it within the right period? No Leave to Amend Analysis
2. Is it outside that period? Go through Court Leave to Amend Granting Standard
Bad Faith/Prejudice/ Undue Delay
- Opposing party bears burden to demonstrate
- Later is worse (i.e., opposing amendment during and after trial)
DISCOVERY
Important Words and Definitions – Discovery
Custodians – People who might have documents that are needed in litigation
Relevance – Relevant in that it can lead to the discovery of admissible evidence
- A relationship between the discovery sought and the elements of the
parties' claims and defenses – what would have to be proved at trial.
Proportional – Proportionality in discovery references information proportional to the
needs of the case
Business advice – advice that does not require a lawyer to use their professional
advice or expertise is not privileged information.
Impeachment evidence – evidence related to the credibility of evidence presented and
to the believability of the evidence
Spoliation – Failure to preserve or destruction of electronic evidence. Governed by
Rule 37(e) AKA Spoliation Sanctions
Relevance – A relationship between the discovery sought and the elements of the
parties' claims and defenses – what would have to be proved at trial.
- Relevant in that it can lead to the discovery of admissible evidence
Affidavit – A written document in which the affiant swears under penalty of perjury
that the statements made are true
Important Class Notes on Discovery:
- All the things that the other party denies in their answer are the things that the
plaintiff has to produce admissible evidence in order to prove in discovery.. If
they do this then they get pass a motion for summary judgement and get to
trial!
- The defendant has to disprove all of the things they deny. The defendant has
the burden of production of their defenses.
- If there is an interview between a client and their lawyer that the opposing party
finds out about you don’t have to give up the information because of attorney
client privilege.
- If there is a conversation that was had with a person and the other side asks for
that information you only have to give them the witnesses, you don’t have to
disclose the conversation, they have to figure that out for themselves.
Structure of Discovery:
1. Parties and Court set initial ground rules and limits in 26(f) and 16(b)
conferences
2. Discovery is initiated by parties; judge intervenes only in case of dispute, w/
broad discretion;
3. Is material requested during discovery responsive to the request?
4. Is the request “relevant to any claim or defense”?
5. Are there grounds for objection on proportionality grounds?
6. Is it privileged or protected by work product?
-
What does discovery consist of?
- Required Disclosures
- Requests for documents
- Interrogatories
- Requests for admission
- Depositions
- Reports of expert witnesses (if used, otherwise skip)
If the case proceeds to trial: another round of disclosures that include the list
of witnesses and other evidence each party will present at trial (Rule 26(a)(3))
Questions to develop your discovery strategy:
What evidence do I need to assemble to prove my claim or defense?
- What part of that information do I already have?
What information might lie in the hands of my adversary (or other parties)
and how can I most efficiently acquire that information?
What information in my possession would I just as soon as the other party
not know about, and is there a way I can lawfully shield that information?
-
-
To answer the above questions a lawyer must envision the following stories:
- The story she wants to tell concerning her claim or defense
- The story she expects to hear from her adversary
Types of Discovery Disputes
Proper Scope of Discovery
Example: A plaintiff may request medical records for the past 10 years from a
defendant who he is in an auto accident with. The plaintiff may objective the request
claiming that the request is overbroad and not proportionate under Rule 26(b)(1). The
defendant may argue that the information is necessary to show if any injuries
complained of predated the accident and can also make a claim that the plaintiff is
resisting appropriate requests for discovery.
Spoliation
Failure to preserve or destruction of electronic evidence. Governed by Rule 37(e) AKA
Spoliation Sanctions
Important: Parties are obligated to preserve evidence relevant to pending or reasonably
foreseeable litigation.
Required Disclosures
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Catalogues the types of information subject to discovery and imposes discoveryrelated requirements on the parties throughout the litigation.
Rule 26(a)(1) Initial Disclosures
Must happen before the deposition or else subject to Rule 37(c) Consequences
Asks each party to put its best evidentiary cards on the table but not those
pieces of evidence that will undermine its own case.
a. ID People with discoverable information
b. Description of documents at trial
c. P give damages estimate
d. Opposing party inform insurances
Exception for impeachment evidence: Information used to impeach the credibility of
a witness can be held back until you depose the witness. NOT ON EXAM.
Rule 26(a)(2) Disclosure of Expert Testimony
-
See also Rule 26(e)(2)
Rule 26(a)(3) Pretrial Disclosures (Final Disclosure)
- A list of witnesses
- Expert reports
- Exhibits
- Documents (that each size proposes to introduce at trial)
**You have to disclose everything that you know you’re using. Otherwise, you**
disclose it when you find out that you’re using it
FRCP 26(d) Timing and Sequence of Discovery
(1) Timing. Discovery on sources received can only occur after the 26(f) conference
unless they are exempt from initial disclosure under Rule 26(a)(1)(B)
FRCP 26(e) Supplementing Disclosures and Responses
1. In General
- If you’re not sure that you want to use information you can sit on it and present it
when you’ve made up your mind.
- Limited to information “may use to support” claim or defense + damages +
insurance (this is important because you may be able to reach a settlement without
going to trial)
- Failure to disclose may result in bar from using at trial (Rule37(c)(1)). The court
could also grant an additional discovery.
2. Expert Witness
FRCP 26(f) Conference of the Parties; Planning for Discovery
Planning Meeting
 Parties come together for a conference and come up with a discovery plan that they
then submit to the court and the court has a Rule 16 conference
 Instructs the parties to confer with each other at the outset of a case about
predicted subjects of discovery, anticipated disputes about the discoverability of
desired information, and other issues that the judge might be able to resolve at an
early stage. Within two weeks of this meeting and before an initial conference with
the judge - the parties must exchange the “initial disclosures” required by Rule
26(a)(1).
Common grounds argued by lawyers in order to amend their pleading under Rule
4(a)(2):
Discovery procured new information enabling the lawyer to tell a more convincing but
different story.
Discovery Tools
Requests to Produce
1. Documents, Things, Land, and Bytes: Requests for Production (Rules 34 and 45)
- Discovery usually begins with a request for production of important
documents, any tangible item, land, or electronically stored information. Rule
34. A plaintiff can make the same request for production to a nonmoving party
but they must be served with a subpoena issued under Rule 45(a)(1)(A)(iii).
- Usually a party will make the following broad request that seeks all documents
in the custody or control of the responding party that “refer, relate or pertain in
any manner” to subject X.
 The responding party can do one of the following in response to this
request:
 Object to the request as “overbroad” or not “proportional” to the
needs of the case pursuant to Rule 26(b)(1).
 Assign its employees the time-consuming task of searching all
files and digital locations where responsive information might be
found.
 Allow the opposing party access to a warehouse or digital storage
and allow them to search for the materials on their own. (A
motion could be brought depending on the unreasonableness of
this approach See Rule 34(b)(2)(E)(i)).
FRCP 34(b)(2)(B) Responding to Each Item
- For each item or category, the response must either state that inspection and
related activities will be permitted as requested or state with specificity the
grounds for objecting to the request, including the reasons.
- The responding party may state that it will produce copies of documents or of
electronically stored information instead of permitting inspection.
- The production must then be completed no later than the time for inspection
specified in the request or another reasonable time specified in the response.
FRCP 34(b)(2)(C) – Objections
- An objection must state whether any responsive materials are being withheld on
the basis of that objection. An objection to part of a request must specify the
part and permit inspection of the rest.
FRCP 45 Subpoena
- You cannot get answers to an interrogatory from a nonparty, you have to get a
subpoena
Interrogatories and Requests for Admissions
2. Asking Questions in Writing, Seeking Admissions: Interrogatories and
Admissions (Rules 33 and 36)
FRCP 33 Interrogatories
Seeks out categories of information that can guide further document requests and
depositions (sworn, out of court oral testimony that can be reduced to a written
transcript and used in discovery).
FRCP 33(d) Option to Produce Business Records
- As long as you can’t get the information in an easier way then you don’t have to
submit requested things in an easier/organized way.
-
Benefits of Interrogatories
- They can get information not contained in any document
Cheaper than conducting a deposition because a party can draft questions, send
the request to the opposing party, and simply wait for answers.
Limitations of Interrogatories
- The questioner cannot follow up evasive answers with a question designed to
pin things down so interrogatories that go beyond fairly routine requests for
specific information may be useless.
- Parties are limited to 25 questions (including subparts). Parties must seek
permission from the court or a stipulation from their opponent before giving
more.
- Interrogatories may only be sent to a party. Nonparty witnesses do not have to
answer written interrogatories. (Parties can make limited requests for
production of documents and things to nonparties but they have to make these
requests through a subpoena.)
Requests for Admissions (Rule 36) and Interrogatories (Rule 33) Share the Following
Characteristics:
- They can only be used against parties
- They are in writing
- They are cheap
FRCP 36 Requests for Admissions
Instructs parties to admit, deny, or explain in detail why they can neither admit or
deny. Parties can admit or deny in part if necessary.
- Parties can make unlimited requests for admission.
- Work best when used to eliminate essentially undisputed issues
- Repeated in class: If a request for admission is denied by a party that is later
proven to be true and you are not able to put on evidence proving it not true,
the opposing party can move for the denying party to pay reasonable
expenses incurred in making the proof under Rule 37(c)(2).
FRCP 36(a)(3)
- If the time has passed for a request for admissions and the request is not
answered it is inferred to have been admitted.
 If the request concerns a purely legal issue or is ambiguous this
inference can be overlooked.
Depositions and Medical Exams
3. Asking Questions In Person: Depositions (Rule 30) and Physical and Mental
Evaluations (Rule 35)
FRCP 30 – Deposition Rules and Procedures
Questioning a witness under oath but not at trial in the presence of a lawyer for each
party, a witness of the court or a recording device.
A witnesses lawyer may object to the content or form of the questions and ask
questions on his own when the other lawyer finishes.
- Lawyers can ask any questions that they want even if they lead to a dead end.
- When dealing with hostile witnesses in a deposition, a lawyer’s goal is to pin
down the adverse witness to whatever story that witness wants to tell; once the
story is pinned down under oath, the lawyer can decide what to do with it.
- Free’s lawyers from some constraints of evidentiary rules.
Example: If a lawyer asks a question that is subject to an evidentiary objection the
witness must answer the question (unless the answer would reveal privileged
information or information protected by court order). The objection is noted on the
record and, the court may prevent this portion of the deposition from being used at
later stages of litigation, but the answer is recorded. As a result, some depositions
yield a good deal of information that will not be admissible.
-
Deposition Advantages over Interrogatories:
Lawyers can ask a series of questions that force the witness to take a position as
to the matters at issue, and the lawyer can immediately follow up with further
questions if the witness is evasive or if the testimony opens up new avenues of
inquiry.
-
-
Disadvantages of Depositions over Interrogatories:
You could rack up thousands in attorney’s, stenographer, or videographer fees
FRCP 30(a)(2)(A)(i) – Deposition Limits
- One party may only take 10 depositions unless permission is given by the court
to take more
- Depositions cannot exceed a day of seven hours
- A witness can only be deposed once unless permission is given by the court or
the other side to be deposed more
FRCP 30(b)(6)
Allows the requester to identify a topic to be explored, give it to an entity/company
(not a single person), and place the burden on the organization to produce a
knowledgeable person.
FRCP 35 – Mental and Physical Questioning
Allows physical and mental examinations of parties and usually is employed only when
the physical or mental conditions of the party is at stake in the case including:
a. When it is well settled that a plaintiff who puts his mental or physical
condition at issue by seeking damages for mental or physical injury can
be required to undergo a physical or mental examination.
b. When a defendant has specifically asserted a defense that puts his mental
or physical condition at issue.
c. In a contract case, if a defendant files an answer that includes an
affirmative defense that the defendant was mentally incompetent and
therefore could not enter into a binding contract
Scope of Discovery
FRCP 26(b)(1) Scope in General.
The information and materials sought must be "relevant to any party's claim or
defense."
- It further emphasizes that the scope of discovery is broader than what will be
available for use at trial. "Information within this scope of discovery need not be
admissible in evidence to be discoverable."
- So, for example, what would be called inadmissible hearsay ("Bob told me that
the product design was dangerous") in the trial stage can lead to admissible
evidence and is allowed in discovery for that reason (Bob's own testimony based
on personal knowledge). The hearsay statement is irrelevant in the discovery
sense.
FRCP 34 – “Early Rule 34”
Permits document requests early; however; the date of response begins after the Rule
26(f) conference.
Rule 37(a)(3)(A) and (B) - Compelled Disclosure
Compelled disclosure techniques can only be used after the 26(f) conference and
initial disclosures.
Information can be protected from discovery even if it is privileged Rule 26(b)(1); if it
is unduly cumulative, duplicative, burdensome, or not proportional to the needs of
the case Rule 26(b)(1) and 26(b)(2)(C); or if its potential for annoyance,
embarrassment, oppression, or undue burden or expense outweigh its evidentiary
value Rule26(b)(2)(C)
Relevance and Proportionality Standard
Relevance and Proportionality Cases
Cerrato v. Nutribullet (pg. 484)
- There must be a reasonable time frame given in a discovery request for it to be
relevant and there must be a limit to how broad the discovery request is for it
to be proportional.
Rengifo v. Erevos Enterprises (pg. 488)
Does the evidentiary value of the requested information outweigh the burdens of time,
money, privacy, and liberty? Decided on a case-by-case basis by the courts. Not
proportional.
FRCP 26(b)(1) Scope in General
Proportionality Exam Analysis:
1. consider the importance of the issues at stake in the action
2. the amount in controversy
3. the parties’ relative access to relevant information
4. the parties’ resources
5. the importance of the discovery in resolving the issues
6. Final Question: Does the burden or expense of the proposed discovery
outweigh its likely benefit?
Class Notes on Relevancy and Proportionality
Relevance – A relationship between the discovery sought and the elements of the
parties' claims and defenses – what would have to be proved at trial.
- Relevant in that it can lead to the discovery of admissible evidence
Relevance Important Notes:
- Relevance links admissibility to the substantive law and to common-sense
patterns of inference. For a piece of information to be relevant to a legal
proposition at trial, the information must tend to prove or disprove
something the governing substantive law says matters.
Relevance Question under Discovery: Would the information sought in the case help
the party seeking it prove or defeat the claim in question?
Relevance Exam Analysis:
Would the information sought in the case help the party seeking it prove or defeat the
claim/defense in question? Protective orders can also be granted for privileged
information.
Yes, Then the nonprivileged information is relevant and there cannot be any
objections to the discovery request.
No, Then the nonprivileged information is not relevant and the opposing can
raise an objection based on this or request a protective order from the court
under Rule 26(c).
Relevance and Proportionality are objections you make in response to the request.
You have to make the objection specifically (in regard to relevance) and you have to
make the disclosure asked for in discovery entirely unless you argue proportionality
for part of the discovery request.
Types of Relevant Evidence:
Direct Evidence – In a contract dispute over what the terms of the contract requires
direct evidence would be the contract itself
Circumstantial Evidence - Allows an inference to be drawn about the probability of
those consequential facts
CALI Example: Party A sues Party B for interference with contractual relations. Party A
testifies that he saw Party B speaking with A’s customer the day before the customer
breached its contract with A. That testimony is direct evidence that B spoke with the
customer, but only circumstantial evidence that B induced the customer to breach its
contract.
FRCP 26(b)(2)(B) Specific Limitations on Electronically Stored Information
When complying with an electronically stored information discovery request a party
need not provide discovery from sources that the party identifies as not reasonably
accessible because of undue burden or cost.
Whether production of documents is unduly burdensome or expensive turns on
whether the data is kept in an accessible or inaccessible format
- If the party raising the objection chose to use a system for their ESI that
made the task of retrieving it burdensome or expensive it doesn’t could.
Wagoner v. Lewis Gale Medical Center (pg. 485)
FRCP 26(c) Protective Orders (MOSTLY NOT IMPORTANT FOR THE EXAM)
Discovery of nonprivileged information can be limited under 26(b) and 26(c)
provisions**
Relevance/ Proportionality Cases: Review and ADD Notes
Cerrato v. Nutribullet (pg. 484)
Wagoner v. Lewis Gale Medical Center (pg. 485)
Rengifo v. Erevos Enterprises (pg. 488)
Favale v. Roman Catholic Diocese of Bridgeport (pg. 480)
Privilege
-
Privilege protects you from the source of information, not the information itself.
Nonprivileged information is the only information discoverable in discovery
under Rule 26(b)(1).
**If privilege is not asserted (similar to a Rule 12(b)(2-5) motion during pre-trial) it**
is waived
Important Privileges for Discovery Purposes:
 Attorney-Client Privilege (Only one you need to know for class)
Important: Does not cover interviews obtained from nonclients. This is covered under
the trial preparation materials doctrine



Privilege against self-incrimination (Fifth Amendment)

A lawyer cannot ask you straight up if you committed a crime but they can produce evidence that
shows that you did in discovery.
Doctor-patient privilege
Spousal privilege
Attorney – Client Privilege In a Nutshell
 Protects confidential communications between attorney and client
 Only protects substance of communication
 Does not protect underlying information or fact of communication with
attorney
Elements of Attorney-Client Privilege
1. A communication
2. Made between counsel and client
3. In confidence
4. for the purpose of seeking, obtaining or providing legal assistance to
the client
Class Privilege Example
- Sam is in a rock band; enters 5-year exclusive K w/R Records. First album
platinum and T records offers to double K w/R
- Sam contacts you and says intends to breach K w/R and claim R misrepresented
in the negotiations that the K would be terminable at will. Sam says this is not
true but wants to know if it would “fly” legally.
- Sam signs with T Records; R sues for breach and sends interrogatories to Sam:
1. Whether Sam consulted counsel before breach
• Not privileged. The fact that you communicated with a lawyer is not
protected, only the conversation itself is privileged and would be
objectionable if asked for.
2. Whether Sam ignored counsel’s advice about breaching
• Not privileged. This is a fact, you don’t have to disclose the actual
conversation.
3. Whether R Records’ CEO stated that the K was terminable at will
• Not privileged. This is a fact. Just because you’ve told your lawyer this
fact doesn’t mean you now don’t have to disclose it. You could have told
your friend the same information.
Ways to waive a privileged objection:
1.
Not objecting to a privilege question raised during deposition or trial
2.
Disclosing privileged information to a third party
3.
Taking a stance in litigation
Example: Claiming emotional distress waives doctor-client privilege in
order to prove the cause of action
4.
Production of a privileged document, or testimony about a privileged
conversation will operate as a waiver and will prevent the party from
asserting the privilege as to any other privileged communications on the
same subject matter (interpreted broadly).
Exception: Claw Back Provision – FRCP 26(b)(5)(B) – Information Produced
When Privileged Documents are Mixed with Nonprivileged Documents:
- A producing party must go through and determine which documents are
privileged prior to handing them over to the requesting party.
- Any documents removed must then be listed on a “privileged log,” and given to
the requesting party, which must provide sufficient information about the
document to allow the requesting party to assess the claim of privilege and
decide whether to contest the claim.
Work Product/ Trial Preparation Material Doctrine
Nonprivileged documents and things obtained from witnesses by one party that cannot
be gotten from an opposing attorney is only discoverable under two special
circumstances:
(1) if it is essential to the case and you cannot obtain the substantial equivalence
through your own efforts or
(2) would result in undue hardship
FRCP 26(b)(3)(A) – Trial Preparation: Materials
- Protects from disclosure: “Ordinarily, a party may not discover documents and
tangible things that are (1) prepared in anticipation of litigation or for trial (2)
by or for another party or its representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to
Rule 26(b)(4), those materials may be discovered if:
i.
they are otherwise discoverable under Rule 26(b)(1); and
ii.
the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.
FRCP 26(b)(3)(B) – Protection Against Disclosure
- If the court orders discovery of those materials, it must protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories
of a party's attorney or other representative concerning the litigation.
CALI NOTE: Communication can be from client to lawyer or lawyer to client
Information covered under the Trial Preparation Material Doctrine:
- Interviews
- Statements
- Memoranda
- Correspondence
- Briefs
- mental impressions
- personal beliefs
- Other tangible and intangible things
When is the information covered under the trial preparation doctrine not free from
discovery?
- When it gives clues to the existence or location of other relevant facts (undue
hardship)
- For impeachment or corroboration purposes (substantial)
- When witnesses are not available or when they are hard to get a hold of (undue
hardship)
Trial Preparation Cases:
Hickman v. Taylor (pg. 495)
Is the Nonprivileged Information Subject to Work Product Protection? Analysis:
MUST DO RELEVANCE AND PROPORTIONALITY ANALYSIS BEFORE THIS ANALYSIS
1. Is it within the scope? (Must answer the following three questions to determine
if it’s within the scope i.e.; protectable)
- Undue burden
- Work product
1. Was the information prepared by party/agent in anticipation of litigation?:
 Is this something you would have done in the line of business anyway?
Yes, You have to disclose it even if it doesn’t help what you’re
being sued for
No, then it was in preparation for litigation
2. Was it prepared by or for another party or its agent/representative?
 Is the person you’re asking for the information from a representative for the
plaintiff or defendant?
FRCP 26(b)(3) CALI NOTES:
How to figure out who is an "agent/representative" for purposes
of privileged communications:
1. The agent's participation must be reasonably necessary; and
2. The client must reasonably believe that the person will keep
the communication confidential.
-
Common people referred to as agents/representatives
Translators
Paralegals
Secretaries (if a client regularly dictates business letters to a secretary)
Technology personnel,
Investigators who assist the lawyer in representing the client
3. Is there a substantial need?
Can the party requesting the information during discovery obtain the
substantial equivalent of the information their requesting by other means?
**ANYTHING THAT IS NONFACTUAL (Opinion Work) YOU ARE TECHNICALLY**
ALLOWED TO REDACT
-
FRCP 26(b)(3)(C) – Previous Statement
- Allows someone to obtain a previous given statement (that is signed) without
reason. YOU ARE ALLOWED TO BE DEPOSED BEFORE YOU DO THIS (to see if you
will change your story. Memo’s written by a lawyer that summarize a previous
statement are not covered. Functionally known as an affidavit.
FRCP 26(b)(5) – Claiming Privilege or Protecting Trial-Preparation Materials
A. Information Withheld
If discoverable evidence is withheld because it is claimed to be privileged or
trial-preparation material, the party must:
i.
expressly claim the protection; and
ii.
describe the nature of the documents, communications, or other tangible
things in a manner that “will enable other parties to assess the claim.”
B. Information Produced
If inadvertently produced, may notify other side and request return.
– Requesting party must destroy, return OR “sequester” and may challenge
protection by presenting material under seal for court to determine
CALI NOTES: Anticipation of Litigation
- If a communication happened because litigation was expected, then the test is
met. If it was done as part of a routine,
- or even with settlement (prior to litigation) in mind, then it was not made in
anticipation of litigation.
Example: The easiest example of a specific claim that was done in anticipation of
litigation comes after the potential plaintiff has indicated an intention to sue.
Conversely, courts are apt to find that documents were not created in anticipation of
litigation in the context of routine statements or reports; accident reports and reports
prompted by complaints; and an insurer's preliminary investigation of a claim, up until
the time the claim is denied.
Responding to Discovery Requests
Motion to Compel and Sanctions
FRCP 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
FRCP 37(a)(1) – Any motion to compel must include certification of good faith
attempt to resolve. You have to try to work things out, then you can file a
motion to compel.
FRCP 37(a)(3)(A) – remedy for violation of failure to disclose under 26(a)
(everything other than 26(a)(1) initial disclosures)
FRCP 37(a)(3)(B)
- May seek order compelling response
- Must certify good faith attempt to confer
- Winning party gets fees and expenses unless “substantially justified”
(IMPORTANT)
FRCP 37(c)(1)
- ONLY for failure to disclose under 26(a)(1)(A) or update under 26(e)
- direct exclusion of evidence, unless harmless or justified (I need this and
I couldn’t have gotten it in a more reasonable time)
- OR any other sanction available for failure to comply, including
informing the jury of failure
FRCP 37(c)(2) – Failure to admit = reasonable expenses of proving w/exceptions
FRCP 37(d) – Failure to Attend Its Own Deposition, Serve Answers to
Interrogatories, or Respond to a Request for Inspection
Make sure that the scenario presented falls under this Rule otherwise go to Rule
37(b)(2)(A)
- May seek sanction directly for outright failure to respond at all to
discovery request
- Only for complete failure
- Inappropriate request is no defense (Ex. The location for the disposition
was too far)
- If you get a partial response after a party makes a good faith effort to
compel a response based on a failure to outright reply, then you are
outside of the territory or 37(d).
Remedies: Management and Sanctions
FRCP 37(b)(2) – List of appropriate sanctions for discovery violations. Applies after
there has been a motion to compel.
FRCP 37(b)(2)(A) Sanctions Sought in the District Where the Action is Pending. For
Not Obeying A Discovery Order
Only applies, when there has been the following:
- Good faith effort
- Partial response
- Another good faith effort
- No response
- Motion to compel filed
- Failure to respond or arguable failure to response
FRCP 37(e) Failure to Preserve Electronically Stored Information. SPOLIATION
SANCTIONS
If electronically stored information that should have been preserved in the anticipation
or conduct of litigation is lost because a party failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through additional discovery, the
court:
(1) upon finding prejudice to another party from loss of the information, may
order measures no greater than necessary to cure the prejudice; or
- Sanctions cannot be greater than necessary to cure the prejudice
(2) only upon finding that the party acted with the intent to deprive another party
of the information’s use in the litigation may:
- For the most serious sanctions against electronic information there must be
a finding that “the party acted with intent to deprive another party of the
information’s use in litigation”
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was
unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Important: Unless you can prove that the destruction of the information needed was
intentional then you can you get an adverse inference instruction or a default
dismissal. Otherwise, the destruction is only viewed as being extremely reckless.
Motion to Dismiss v. Motion for Summary Judgement
Objections; Motion to Quash
FRCP 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections
- FRCP 11 counterpart for discovery requests and responses
- Certify that requests, response or objection is:
 Result of reasonable inquiry
 Warranted by law or reasonable extension
 Not intended to harass or delay
 And not unduly burdensome
- Party may seek sanctions or court can impose directly without a motion
- States that attorney fees is the most appropriate sanction to be applied to
violations under this Rule
PRE-TRIAL ADJUDICATION
IMPORTANT CLASS NOTE: For a defendant to win a MSJ against a plaintiff under this
possibility - they do not have to prove all four elements of the plaintiff’s complaint,
3.
1. Assume allegations are true;
2. Look only at the pleadings;
Do they state a claim? (I.e. do they satisfy the
pleading burden?)
Twiqbal Standard Applies
2.
4.
1. Look for any dispute of “material fact”
Examine all admissible evidence in record, discovery and
affidavits;
3. Is there a genuine dispute of a material fact?
Is movant entitled to judgment as a matter of law? (I.e. has
movant met/failed burden of production?)
instead they just have to disprove any one of the elements within a claim (ex. disprove
duty within negligence) then ask the court to side in their favor based on this.
A. Motion to Dismiss
FRCP 12(b)(6) – see pre-answer motions
B. Summary Judgement
Important Exam Note: A common exam hypo contains a plaintiff who moves for
summary judgement at the close of discovery alleging that there is no dispute of fact
(ex. P says he didn’t run a red light, D says P did run a redlight); however, this is not a
dispute of fact because pleadings are NOT evidence
Remember: Credibility is a dispute of fact and cannot be assessed during summary
judgement EVER!
Direct Evidence – In a contract dispute over what the terms of the
contract requires direct evidence would be the contract itself
Circumstantial Evidence - Allows an inference to be drawn about the
probability of those consequential facts. Cannot be hearsay!
Summary Judgement Hypo
P is walking across the street and is hit by a car driven by D. P sues D and alleges in his
complaint that he was in the crosswalk, with the walking sign appearing when D ran
through a red light and hit P. D files an answer denying all of P’s allegations. After
Discovery D makes a motion for summary judgement supported by affidavits from 3
clergymen. All of whom were at the scene and saw the accident. They all say that D had
the green light and P was jaywalking. All of the affidavits are proper evidence.
D Wins: If in response to D’s motion for summary judgement P counters by saying that
he claimed that the light was actually red in his complaint thus using that as his
argument that there is a dispute of fact then D would win.
D’s Motion Fails: If in response to D’s motion for summary judgement P counters by
presenting an affidavit from a drug addicted felon eye witness saying that D did run
through a red light then D’s motion for summary judgement would fail because in a
motion for summary judgement, the judge CANNOT assess credibility based on the
evidence presented because it is a genuine dispute of fact which can only be assessed
at trial. Regardless of whether or not D had 1 witness and P had 5 witnesses, it is still a
genuine dispute of fact.
P could make a Motion: If in response to D’s motion for summary judgement P
produces a video that clearly shows that the light was red then he could make his own
motion and his evidence would outweigh D’s 3 affidavits.
FRCP 56(a) – The court shall grant summary judgement if the movant shows that there
is no genuine dispute as to any material fact thus making the movant entitled to
judgement as a matter of law.
- Given the evidence presented by the moving party, no reasonable jury could
find for the nonmoving party
CALI Note: Summary Judgement requires the parties to demonstrate actual evidence
supporting or refuting the factual assertions in the pleadings. If the nonmoving party
cannot demonstrate that there are actually factual disputes to be tried, then there is
nothing for a jury to do. In that situation, Rule 56 allows the judge to enter a judgment
in favor of the moving party, rather than waste the time and resources necessary for
having a trial. If there are conflicts as to the facts, those conflicts are to be resolved
at trial, not on a motion for summary judgment.
When is Summary Judgement Appropriately Granted?
- When the critical dispute concerns the law (does the first amendment forbid a
school district from requiring pupils to recite the Pledge of Allegiance?
- When the law is clear but one party lacks evidence to support a critical element of
their case.
FRCP 56(c) – Procedures
FRCP 56(c)(1)(A)
- Courts decide judgement motions on the basis of various documents and things
(SEE BELOW). No witness testimony or jury is present only a sworn and proper
statement.
Electronically stored information
Depositions
Documents
Affidavits or declarations
Stipulations (including those made for purposes of
the motion only)
Admissions
Interrogatory Answers
Or other materials
FRCP 56(c)(4) Affidavits
Affidavit – A written document in which the affiant swears under penalty of perjury
that the statements made are true.
An affidavit can only be made if it includes all of the following:
- Personal knowledge
- Facts that are admissible in evidence
(we will not be tested on whether or not evidence is admissible or not since we would
need to know information regarding the Federal Rules of Evidence)
The affiant or declarant is competent to testify on the matters stated
Celotex Summary Judgement Burden
- At trial, plaintiff has burden of production on critical issue
- On summary judgement, plaintiff has burden of production
- P can’t prove that I did it, D goes free
If a defendant brings a MSJ against a plaintiff’s claim the defendant is saying 1 or
both of the following:
1. I don’t think the plaintiff has met their burden of production by not showing
evidence for 1 or more of the elements (Celotex Style for a Motion for
Summary Judgement) and/or
 CELOTEX STYLE CAN ONLY BE USED BY A DEFENDANT (DOES NOT
APPLY TO JMOL BUT IS CONCEPTUALLY THE SAME)
2. As a matter of law, even though both sides have evidence, the court should side
for the defendant without weighing the evidence that one side is entitled to
judgement over the other.
TRIAL AJUDICATION
Judgement as a Matter of Law
Renewed Judgement as a Matter of Law
New Trial
The judge is only making a legal decision, NOT deciding facts
Rule 16. Pretrial Conferences; Scheduling; Management
FRCP 16(b) Scheduling
Sets a date for everything including, witnesses, jury instructions, evidence, etc.
FRCP 16(e) Final Pre-Trial Conference and Orders
YOU DON’T HAVE TO HAVE A PRETRIAL CONFERENCE
Maps out and specifies claims, defenses, and evidence that will be presented at trial
and what each parties respected information (claim, defense, evidence) will be.
Rule 15(b) and 16(e) Requirements
- Conference must be held as closely to before trial as possible
- One attorney (or representative) by each party must be there
When reading 15(b) Amendments During and After Trial and 16(e) Final Pretrial
Conference and Orders together: You can only amend at trial if something has
come up that is beyond your control but is essential to your case
-
Rule 16(e) Requirements
- Conference must be held as closely to before trial as possible
- One attorney (or representative) by each party must be there
- When reading 15(b) and 16(e) together: You can only amend at trial if
necessary to prevent manifested injustice (i.e., something that has come up
which is beyond your control and is significant to your case)
The type of justice that must be committed for an amendment after a
pretrial conference under 15(b) is higher than the type of justice that
must be committed under rule 15(a).
-
-
Substantial Evidence Test
Judge must “disregard all evidence favorable to the moving party that the jury is
not required to believe.”
- “That, is the court should give credence to evidence favoring the
nonmovant as well as that evidence supporting the moving party that is
uncontradicted and unimpeached”
The existence of favorable evidence is NOT enough to survive
FRCP 50 Judgement as a Matter of Law in a Jury Trial; Related Motion for a New
Trial; Conditional Ruling
A. Judgement as a Matter of Law
Standard: If the judge decides that reasonable people could not disagree on the result
(the case would only come out one way) he takes away the jury’s ability to decide the
case and decides it himself.
FRCP 50(a) Judgement as a Matter of Law
Functional equivalent of summary judgement and looks at all of the evidence including
the evidence presented at trial
Pennsylvania Railroad (pg. 629)
When presented with only indirect equivocal circumstantial evidence, you
cannot grant a parties J.M.O.L. unless the inference the party is trying to get
you to make based on the evidence is:
- The most reasonable inference that can be made And…
- Evidence is presented to show why it is the most reasonable inference that
can be made in comparison to the other party’s inference
Class HYPO Directed Verdict (JMOL)
Negligence case
P’s Burden?
Burden of production of admissible evidence to prove negligence
elements
D pleads Statute of Limitations as affirmative defense: D’s burden?
Burden of production of admissible evidence to prove that the defense
that the statute of limitations has expired
Close of P’s case:
– P thinks overwhelming evidence; Move for directed verdict?
NO, they cannot move for DV until D presents their evidence
– P no evidence on statute of limitation issue; Can D move for directed
verdict on statute of limitation grounds?
NO, D must present evidence to dispute P’s negligence elements in order
to move for DV.
Close of all evidence: P put on evidence of all elements of neg; D put on evidence of
the statute of limitations having expired; both move for a directed verdict. Result?
D WINS: Jury must decide for D since no facts contended by either party
dispute each party’s argument. Since, no facts are disputed, the Statute of
limitations defense would be upheld over the negligence complaint
JMOL Fact Pattern:
D makes a motion for JMOL because P has not presented evidence to establish one
element of his negligence claim.
D WINS: The judge could grant the motion, thus taking the case away from the jury
and deciding that no reasonable people could disagree that P has not satisfied their
burden of production.
D HAS TO WAIT: The judge could deny JMOL and the case goes to the jury even
though there was no evidence to prove all negligence elements.
Judgments as a Matter of Law 50(a) & Renewed Judgement as a Matter of Law 50(b)
Results
- Focus on adequacy of evidence
- Replace jury’s verdict with judge’s judgment
- Results in final judgment
 Thus immediately appealable
B. Renewed Judgement as a Matter of Law
The exact same as JMOL but comes up after the judge denies motion for JMOL thus
letting the case go to the jury. If the jury decides for the other side (wrong side) the
losing party can move for a RJMOL WITHIN 28 DAYS AFTER THE ENTRY OF
JUDGEMENT. If it is granted by the judge this would take the victory away from who
the jury awarded it to and instead enter judgement for the other party because the
jury made a decisions that reasonable people would not have disagreed on.
Class Notes
-
Motion is granted when the court finds information that the jury could find for
the party against whom the motion is directed (no reasonable person could
disagree as to who should win)
Directed verdict CANNOT be granted based on a judge’s credibility
determination
FRCP 50(b) Renewing the Motion After Trial; Alternative Motion for a New Trial.
If the court does not grant a motion for judgment as a matter of law made under Rule
50(a), the court is considered to have submitted the action to the jury subject to the
court’s later deciding the legal questions raised by the motion. No later than 28 days
after the entry of judgment—or if the motion addresses a jury issue not decided by a
verdict, no later than 28 days after the jury was discharged—the movant may file a
renewed motion for judgment as a matter of law and may include an alternative or
joint request for a new trial under Rule 59. In ruling on the renewed motion, the
court may:
1. allow judgment on the verdict, if the jury returned a verdict;
2. order a new trial; or
3. direct the entry of judgment as a matter of law.
- Some judges deny a grant of J.M.O.L. under Rule 50(a) and grant it under Rule
50(b) in order to ensure that their decision does not get reversed.
**You can choose to move for a new trial directly or for a J.M.O.L. however you
only** have 28 days to do either.
RJMOL Fact Pattern:
D makes a motion for JMOL because P has not presented evidence to establish one
element of his negligence claim. D moves for a RJMOL within 28 days after the
judgement was entered against him.
D WINS: The judge grants the motion setting the original jury judgement aside
D LOSES: Judge denies this motion so D’s only recourse is to appeal the entire case
Common Exam Trick for RJMOL:
To move for RJMOL you must have moved for JMOL at the proper time at trial
- D has two opportunities to move for a JMOL but can only move once during
trial or after trial
- P has one opportunity to move for a JMOL
After
1.
2.
3.
4.
5.
6.
7.
choosing a jury, the procedure is usually as follows (depends on local rules)
Ps opening statement (usually goes first)
Ds opening statement (option to this after P’s direct evidence)
P presents direct evidence (D can cross-examine)
D may move for a JMOL (directed verdict) ONLY under Rule 50(a)
D presents direct evidence (P can cross-examine)
P presents rebuttal evidence
D presents rebuttal evidence
8. P or D may move for a JMOL (directed verdict). Assuming no successful
directed verdict motion, closing arguments (usually P speaks first and last)
under Rule 50(a)
9. Jury instructions (judge could also instruct in beginning and at end)
10. Jury verdict
(NOT ON EXAM BUT COMES UP ON BAR)
7th Amendment
Echoed in parts of Rule 50 and 59
A citizens right to a jury trial
Only applies to Federal civil cases (and criminal cases)
There is no right to a jury trial in state civil court
Ray Interpretation of Amendment 7: It is limited to the kinds of cause of action claims that were included as a part of
law, not equity in the common law. It is not comprehensive, it only applies to some causes of action.
C. New Trial
granted for a variety of reasons summed up under Rule 59(a)(1) (ex: juries were
bribed, the judge put the burden of proof on the wrong party)
but mostly boils down to the judges belief that a mistake was made which effected the
case and rather than making the requesting party have to go through an appeal and get
reversed, they grant a new trial instead
FRCP 59 New Trial; Altering or Amending a Judgement
a. In General.
1. Grounds for New Trial. The court may, on motion, grant a new trial on all or
some of the issues — and to any party — as follows:
A.
after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court; or
B.
after a nonjury trial, for any reason for which a rehearing has heretofore
been granted in a suit in equity in federal court.
b. Time to File a Motion for a New Trial. WITHIN 28 DAYS AFTER JUDGEMENT IS
RENDERED SAME TIME AS RJMOL
c. Time to Serve Affidavits. New trial motions based on affidavits must include
affidavits and other party has 14 days to present opposing affidavits.
d. New Trial on the Court's Initiative or for Reasons Not in the Motion.
- No later than 28 days after the entry of judgment, the court, on its own, may
order a new trial for any reason (even a reason not stated in the motion as long
as they specify the reason) that would justify granting one on a party's motion.
After giving the parties notice and an opportunity to be heard, the court may
grant a timely motion for a new trial.
-
New Trial Rule 59 Results
Examines evidentiary adequacy or process
Sends case to new jury
No final judgment if granted
– And therefore unappealable (unless conditional as part of a JMOL order)
Relationship between Rule 50 and Rule 59
• Rule 50(b) permits movant to bring JMOL & New Trial motions together
New Trial Grounds
Procedural Arguments You Can Make:
(you will know the exact argument that a party is making on the exam but you must
know what is bolded below)
– legal error; prejudicial conduct (court or counsel); juror misconduct;
newly discovered evidence; unfair surprise
 R. 61 requires the error to have affected “substantial rights of the
parties”
 Party claiming error must have objected to any error that trial
court could have corrected at the time it occurred
Substantive: Verdict against the manifest weight of the evidence
– Something short of judgment as a matter of law
– Basically says that the court cannot act as the “13th juror”
Inadequate or Excessive Award
Additur – The increase by a court of the jury's award of damages which the
court deems insufficient
Remittitur – Allows a court to decide that the evidence does not support the
damage award decided by the jury
FRCP 50(c) – Granting the Renewed Motion; Conditional Ruling on a Motion for a
New Trial.
(1) In General.
– If the court grants a renewed motion for judgment as a matter of law, it
must also conditionally rule on any motion for a new trial by determining
whether a new trial should be granted if the judgment is later vacated or
reversed. The court must state the grounds for conditionally granting or
denying the motion for a new trial.
(2) Effect of a Conditional Ruling.
– Conditionally granting the motion for a new trial does not affect the
judgment's finality; if the judgment is reversed, the new trial must proceed
unless the appellate court orders otherwise. If the motion for a new trial is
conditionally denied, the appellee may assert error in that denial; if the
judgment is reversed, the case must proceed as the appellate court
orders.
– If you are the party that is granted a J.M.O.L. but denied a new trial, you can
ask for the court upon appeal to reverse the lower court’s holding and to
allow for a new trial instead of denying the trial court’s holding on that
granted you a J.M.O.L. You don’t have to argue for a J.M.O.L. upon the other
party appealing, you can ask the court to give you what you asked the lower
court for instead of the J.M.O.L. that was granted.
FRCP 50(d) – Time for a Losing Party’s New-Trial Motion.
FRCP 50(e) – Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal.
If the court denies the motion for judgment as a matter of law, the prevailing party may appeal, as appellee,
assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in
denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial
court to determine whether a new trial should be granted, or direct the entry of judgment.
You can appeal if you lose the pre-verdict motion, jury verdict, or lose the post-verdict motion.
PERSONAL JURISDICTION – DUE PROCESS
Rule 12(b)(2) Lack of Personal Jurisdiction (defenses subject to waiver under
12(h)(1))
Personal jurisdiction restrictions apply to state courts in the same way that they do to
federal courts.
CALI NOTE: A court may lack personal jurisdiction if the service of process was not
authorized under the applicable long-arm statute Rule 4(k)(1), or it would violate the
constitution for the court to assert personal jurisdiction over the defendant
- If you’re the moving party and you raise a 12(b)(2) motion but it is denied you
have to wait until after the trial to raise it again
Personal Jurisdiction Analysis Breakdown:
1) Is there a state statute that allows the court to exercise personal jurisdiction
over the defendant within this state?
In Personam
No, since this would cause there to be no due process, no PJ
Yes, which category does the defendant fit under and move on to constitutional
analysis
Types of State Statutes
California Statute – Statute reaches to the full extent of due process
Laundry List Statute – A non-resident defendant can be sued in the state on a claim
that arises from the defendant doing something specific in the forum
In Rem
Rule 4(n)(1)-(2) Asserting Jurisdiction Over Property or Assets. One must seize the
property in the outset and apply international shoe test
Yes, Must be an Attachment Statute; Continue with remaining PJ analysis
Attachment Statute – The state allows the use of property as the jurisdictional
predicate as long as the defendant owns or claims to own the property
(generally what the attachment statute in each state will say)
No, STOP
2) Is there a relevant contact between the defendant and the forum state?
(General jurisdiction analysis stops here)
a. General
Personal jurisdiction for all causes of action. A court may establish personal
jurisdiction over a defendant in a forum State’s jurisdiction when defendant’s
continuous and systematic activities in the forum state are so substantial as to render
them “at home” in the forum State
Goodyear Dunlop Tires Operations (pg. 129)
Plaintiff is suing on claims unrelated to the defendant’s activities in the
forum State
In Goodyear, even though some of the products that Goodyear’s
subsidiaries manufactured did end up in North Carolina the
manufacturers and distributors activities in North Carolina were not
enough to establish general jurisdiction because they were not systematic
and continuous and were only sufficient to establish specific jurisdiction.
Stream of Commerce Inquiries do not apply to general jurisdiction tests
Daimler AG (pg. 133) A court can establish a corporations PPB as their
headquarters or when the amount of activity within the state is a lot
 Corporation: PPB or INC
 Individual: Domicile
General Jurisdiction Issue Statement: Is the defendant’s affiliation with the forum
State so “continuous and systematic: as to render [it] essentially “at home” in the
forum State?
b. Specific
Defendant is sued for a claim that arose in the forum state (the state where the
plaintiff is suing) based on their contact and relationship to suit
 Individuals - usually some direct contact with forum; the
internet complicates things
 Corporations - activities in and directed at forum
I.
Tag Burnham (pg.148) – Direct personal service on a real person in the
forum = general jurisdiction
II. Contractual Consent Carnival Cruise Lines (pg. 159) A party who signs a
forum-selection clause with a business is not subject to negotiation since it is
unreasonable to believe that any business of this nature would actually negotiate
the terms of this clause with their customers given the nature of the business.
Only when there is a lack of fundamental fairness or insufficient notice a party
cannot argue against a forum-selection clause.
a. Here, No bad faith because: (1) Carnival’s Principal Place of Business is
in Florida since many Carnival Cruise Line cruises depart and return to
Florida ports and (1a) the money Carnival saves from the implementation
of this clause directly benefits its customers who experience less
expensive cruise fares as a result (2) No evidence that Carnival Cruise
Line obtained their customers approval to the forum selection clause by
fraud or overreaching
b. Here, No insufficient notice because: The Shute’s conceded that the
forum selection clause was reasonably communicated to them by
Carnival since they did receive a ticket that explicitly stated that they
agreed to the clause upon going on their trip

Forum selection clause
What Overcomes Forum-Selection Clause:
“Fundamental Fairness”
 Bad Faith motive in selecting location
 No legitimate business reason for forum
 Fraud in obtaining consent
“Insufficient Notice”
 Clause buried/difficult to find
 But adhesion contract is fine (you don’t get to negotiate it
contract, there isn’t much room to argue against it kind of
contract)
 Choice of law clause
 Choice of law clause
No matter what court you’re in, the company who writes the clause chooses a specific
states law to apply to a case if they are sued
III. Purposeful Availment and Foreseeability Shaffer (property) pg. 90
Did the defendant fully avail itself of the privilege of conducting activities within the
forum State?
Foreseeability – Is the defendant’s conduct and connection with the forum State
such that he should reasonably anticipate being hauled into court there?
Hanson (pg. 87) Express Consent Unilateral activity is not enough for a court to
establish that a defendant, “purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and
protections of its law.”
Exception: Nicastro (pg. 111) Cases involving an intentional tort may
serve to displace the general rule in Hanson
Hanson Defendant Purposefully Avails Themselves When:
1. transacting business,
2. renting offices,
3. using the roads, or
4. marketing advertisements to citizens
**It is not enough that the defendant might have predicted that its goods will reach the**
forum state
McGee (pg. 86) Express Consent
Purposely conducting business within a forum state is enough for a defendant
to purposefully avail himself to the forum state
IV. Stream of Commerce (type of purposeful availment)
Permits a court to exercise specific jurisdiction in product liability cases where a
defendant places goods into the stream of commerce with the expectation that they
will be purchased by consumers within the forum state (serve the market)
i. Nicastro (pg. 111) Implied Consent
need some conduct that shows attempt to serve specific forum
beyond national marketing/distributor; consider internet
ii. BMS: extensive in-state conduct, incl. distributor, not enough
for foreign Ps unconnected to that conduct;
How to prove relevant contact: It is not enough that D has
contact w/ forum. You must prove that the contact included
the very product that hurt the plaintiff
iii. Ford: in-state injury to P combined with substantial contacts
even if P unconnected to those contacts is enough
iv. World-Wide Volkswagen Corp. (pg. 100) Implied Consent
Since Defendants (Volkswagen and Seaway) did not
purposefully avail themselves – seek out by advertising or in
other ways – to the Oklahoma market, jurisdiction does not lie.
Only when the sale of a product arises from the efforts of the
manufacturer or distributor to serve the market for its product
in [several] States, it is not unreasonable to subject it to suit in
one of those States if its allegedly defective merchandise has
there been the source of injury to its owner or to others.”
3) Does the plaintiff’s claim arise from defendant’s contact with the forum?
(SPECIFIC JURISDICTION ONLY)
Does the defendant’s contact include the very product that harmed this
plaintiff?
Yes, there is specific jurisdiction
No, No specific jurisdiction but possibly general jurisdiction
4) Would jurisdiction be fair? (SPECIFIC JURISDICTION ONLY)
1. What is the defendant’s burden?
Balance D’s burden against the following Fairness Factor’s
- Forum state interest;
- P’s interest (where not protected by forum choice); and
- Interstate interests (other forum state)
Remember: Just because D has minimum contact doesn’t mean the other
factor’s won’t prevent there from being personal jurisdiction
Stream of Commerce Cases:
Ford (handout)
BMS (140)
Nicastro (111)
Venue
VENUE
A statutory sub requirement to personal jurisdiction that tells you where a defendant
can be sued for a particular claim in state court
Rule 12(b)(3) – “Wrong district court” Improper Venue (defenses subject to waiver
under 12(h)(1)) When the plaintiff was not authorized under the applicable venue
statute to file the claim in this district
Venues Important to Remember for the Exam:
V. Cleveland is in the Northern District
VI. Cincinnati and Columbus are in the Southern District
28 U.S.C. §1391(b): Venue in General
§1391(b) does not apply to cases removed from state court to federal court. Only
applies when the plaintiff is initially filing in federal court. Any district where all
defendant’s reside.
A civil action may be brought in—
(1) a judicial district in which any defendant resides (defined under 1391(c), if all
defendants are residents of the State in which the district is located; Requires
every defendant to reside in the state before this section applies
Meaning: If all defendants are residents of the forum State then you can lay
venue in any district that one of the defendant’s resides;
Example
D1 resides in NDOH
D2 resides in SDOH
P can bring suit in NHOD/SDOH
P cannot bring suit in WDOH/EDOH)
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated; or
Meaning: You may lay venue in any part where a substantial part of that
claim arose
 Echoes specific jurisdiction. Used only on individuals when
you’ve determined that personal jurisdiction can be used
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action. ALMOST NEVER
APPLIES!
Meaning: Only applies when there is no district anywhere in the US that will
meet any of the above two choices.
§1391 Class Hypothetical
Connie, who lives in Pennsylvania is selling cookies to her rep Bill to sell in grocery
stores throughout Ohio and Connie now sues him in Ohio. Does this stand?
Answer:
Under §1391(b)(1) general jurisdiction over Bill exists in Ohio but not for Connie since
she is domicile in Pennsylvania.
Under §1391(b)(2) there is a bit of an argument that could be made but we would need
to know if Connie sells a substantial amount of her cookies in Ohio.
§1391(c): Residency
For all venue purposes:
(1) A natural person . . . shall be deemed to reside in the judicial district in which
that person is domiciled;
(2) An entity with the capacity to sue or be sued . . . shall be deemed to reside, if a
defendant, in any judicial district in which such defendant is subject to the
court’s personal jurisdiction . . . And, if a plaintiff, only in the judicial district in
which it maintains its principal place of business; and
(3) A defendant not resident in the United States may be sued in any judicial
district and joinder [of it] shall be disregarded in determining where the action
may be brought . . . .
§1391(d): Residency of Corp. in States With Multiple Districts
. . . in a State which has more than one judicial district and in which a defendant
corporation is subject to personal jurisdiction . . . Such corporation shall be deemed
to reside in any district in that state in which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate state, and, if there
is no such district, the corporation shall be deemed to reside in the district in which
it has the most significant contacts.
- §1391(d) Basically Says: Corp is deemed to reside in any district in a state in
which its contacts would be sufficient to subject the Corp to PJ if that district
were a separate state. If there is no district on its own within the state that
would be the equivalent of PJ based on contact then we pick the one with the
most significant contacts. Default
- If there is one corporate defendant and one individual defendant and the
individual defendant does not reside in the state then do not bother with a
§1391(d) analysis
Individual §1391 analysis:
§1391(b)(1)
§1391(c)
§1391(b)(2)
Corporation §1391(b)(1) analysis:
§1391(b)(1)
§1391(c) and (d)
§1391(b)(2)
Individuals “resides” – place of domicile
Corporations or Businesses in General “resides”– in all districts where
business is subject to personal jurisdiction
A. Transfer of Venue
Occurs between courts within the same judicial system
Important Transfer Class Notes
- Generally you can only transfer to a court that has proper venue and has
personal jurisdiction over the defendant. Must be true without waiver by the
defendant.
Exception: A court can only agree to transfer a case that does not satisfy
these two requirements if all parties agree and the court thinks that the
transfer is a good idea
28 U.S.C. §1404(a) – Change of Venue
Federal Court was a Proper Venue but not this Federal Court – Federal Courts Only
For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it might
have been brought or to any district or division to which all parties have consented.
– Allows federal courts to move cases around the country “for the
convenience of parties and witnesses, in the interest of justice”
– “Where it might have been brought” – state with PJ and District where
venue is proper
– “For the convenience of parties and witnesses” and “In the interest of
justice” – FNC Factors
Atlantic Marine Construction Co. (pg. 195)
Forum Selection Clause and Venue Transfer Case
VII.Forum Selection Clause ensures that a transfer will be enforced under
1404(a) if there is no fraud or deceit
These factors will help you decide if venue should be transferred “for the
convenience of parties and witnesses, in the interest of justice” under 1404(a) and
1406: Footnote 6 in Piper
Private Factors
• P’s choice;
• Access to evidence;
• Ability to subpoena witnesses;
• Ease of getting witnesses;
• Access to premises;
• All other practical issues
Public Factors (More or less about where the evidence is, including the witnesses)
• Court congestion (Would be obvious if on exam, otherwise just list it but don’t
worry about analyzing on exam)
• Local interest; (Is this a district that has a strong interest based on the parties
and the event that occurred?)
• Court knowledge of applicable law;
• Avoid unnecessary conflicts of law (Too hard for exam, just list it but don’t
worry about analyzing on exam)
• Unfairness of burdening citizens w/unrelated case (Basically the inverse of the
local interest)
Important: You are applying all of the public and private factors to the current district
AND the alternative district and weighing them against each other
Important Class Note Regarding Public and Private Factor Analysis
The main scenario to apply these factors to is to consider in federal court,
a Whether to transfer this case from one district to another b/c the district is
clearly superior OR
b What venue to put the case in as an alternative to dismissing the case for lack of
venue
Corporate PJ and Venue under 1404(a) Class Hypothetical
P (CA)
D1 (Car Corp.: PPB-OH; Del. Corp.)
- Ads/dealers/service throughout all of CA
D2 (Dealer; PPB – NDCA; Corp – Del.)
VIII.
P purchased car in NDCA; P accident in SDCA;
IX. SDCA is on the table since the accident was there but in Ford, D was subject to
PJ b/c they also had many other substantial business and sales. Thus we need
more info to establish the SDCA as a possible district.
X. Del. – 1 District
XI. CA = Northern District CA, Eastern District CA, Center District CA and Southern
District CA – 4 Districts
XII. §1391
Is PJ Proper?
1. Longarm: CA is the maximum, Ohio possibly but adds nothing that CA doesn’t
already require
a. General Jurisdiction: over Dealer, Def 2 since their PPB is in CA, but not
over Carcorp, Def 1
b. Specific jurisdiction: Yes since the car was purchased by Def 2 from Def
1 (SoC)
2. Fairness Factors: May not all be relevant but say them
c. Advertised in state
d. Def 1 purposefully availed themselves to do business with dealer
e. Forum state interest:
i. CA has an interest b/c accident happened there so it is protecting
their population and their consumers
Is Venue Proper?
With Venue you are doing the PJ analysis but you’re trading the forum state for the
jurisdiction instead
Under §1391(b)(1) venue does not apply since Car Corp doesn’t reside there and
all defendant’s must reside there in order for residency under §1391(b)(1) to be
applicable
1391(d) D2, Dealer – NDCA (Yes) SDCA on the table since the accident was
there but in Ford, D was subject to PJ because they also had many other
substantial business and sales. Thus, we need more info to establish the
SDCA as a possible district.
1391(d) D1, Car Corp – NDCA (Yes) SDCA (Yes)
Under §1391(b)(2) NDCA is stronger since car was purchased in NDCA by Dealer
in NDCA from Car Corp and, PPB for Dealer is in NDCA
B. Forum Non Convienens
A discretionary power that allows courts to dismiss a case where another court, or
forum, is much better suited to hear the case but that case is in a different judicial
system. This dismissal does not prevent a plaintiff from re-filing his or her case in
the more appropriate forum. CANNOT BE ASSERTED AS A 12(b)(3) Improper Venue
Motion
28 U.S.C. §1406 Cure or Waiver of Defects
Original Federal Court is an Improper Venue
The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer such case
to any district or division in which it could have been brought
A judgement on Forum Non Convienens could result in a dismissal in state court b/c
another state is better or a dismissal in federal court b/c another country is better.
FNC Federal Court – Dismiss case because the case should be in a different country (If
there is a FNC argument for a case already in federal court then case must be
dismissed since federal courts can always transfer to another federal court)
FNC State Court – Dismiss case because another state is better;
FNC can also result in a denial but this is very hard to establish and requires almost all
factors to be satisfied. FNC will never result in a transfer!
**FNC in federal court is a clear argument that the case should be in a different**
country and thus dismissed
Piper Aircraft v. Reyno (pg. 188)
Forum Non Conveniens Case
SUBJECT MATTER JURISIDICTION
Subject Matter Jurisdiction
The sorting of cases between court systems in a particular state
Rule 12(b)(1) – “Not Here” Lack of Subject Matter Jurisdiction (nonwaivable Rule 12
defense)
XIII.
Court lacks the power to hear this case
Important SMJ Class Notes:
- When a Rule 12(b)(1) motion to dismiss is granted by a federal court, a party can
refile the same claim in state court
- State courts can hear any kind of case at all (they have general subject matter
jurisdiction)
- If a state is suing another state they go straight to the Supreme Court
- Federal courts can only hear two kinds of cases (1) Diversity of Citizenship and
(2) Federal Questions. Even if both parties agree to go to federal court the case
cannot go if it’s not one of these two cases
- Just because you meet the requirements to be heard in federal court doesn’t
mean that P has to go to federal court. Section II, Article III contains a list of a
cases that are an exception to this rule.
Doctrine
Personal Jurisdiction
Constitutional
Source
Statutory
Source
Due Process Clause of the
Fourteenth Amendment
State and Federal Long-Arm
Statutes (e.g., Rule 4(k)(1)(A))
Effect
Limits power of state and federal courts
in any given state over cases involving
defendants without sufficient connections
to that state
I. Constitutional Source
Federal Subject Matter
Jurisdiction
Article III
Federal Jurisdictional Statutes
(e.g., 28 U.S.C. §§1331, 1332,
etc.)
Limits power of federal courts
to certain kinds of cases
Article III of the Constitution
Section 2.
XIV. A case not listed in Article III, §2 may only be heard in state courts unless
Congress says otherwise
Federal Courts’ Jurisdiction are limited to the following types of cases:
- all cases affecting ambassadors, other public ministers and consuls
- to all cases of admiralty and maritime jurisdiction
- to controversies to which the United States shall be a party
- to controversies between two or more states
- between a state and citizens of another state
- between citizens of different states Diversity Jurisdictions
- between citizens of the same state claiming lands under grants of
different states,
and between a state, or the citizens thereof, and foreign states, citizens
or subjects
In all cases affecting ambassadors, other public ministers and consuls, and those in
which a state shall be party, the Supreme Court shall have original jurisdiction
-
II. §1331 Federal Question MOST Cases are FQ
Federal Question Cases
Motley (pg. 210) Established the Well-Pleaded Complaint Rule – the definitive
interpretation of §1331
Federal Question – Well-Pleaded Complaint Rule; Step by Step:
1. Ignore everything the plaintiff says and
2. look only at the claim itself then ask yourself: Is the plaintiff enforcing a federal
right?
A case can start off as a federal case and then lose its federal status after a judgement
or settlement (See pg. 216 question 8)
Federal Question Class Hypotheticals
1. Worker contends that Employer has under-paid her, failing to pay time-and-ahalf for overtime hours.
• Original Federal jurisdiction? Yes
• Appellate jurisdiction? Yes
2. Sued for libel, News-paper invokes the First Amendment as a defense
• Original federal jurisdiction? No
• Appellate jurisdiction? Yes, if things don’t work-out in the lower courts
III. §1332 Diversity Citizenship
Gives U.S. Federal Courts the power to hear a case or exercise authority over disputes
that do not involve a federal question
Important Diversity Citizenship Class Notes
A.
Amount in Controversy
- §75,000.01 <
- What P claims are her damages is never questioned unless it is clear to a legal
certainty that she cannot recover more than $75,000
Example: P sues for negligence and federal statue says that she cannot
recover more than $50,000 for those claims (although she states her
claim of relief as $100,000), amount in controversy not satisfied
B.
Aggregation
- You cannot aggregate when there are multiple P’s and D’s
- Each P may aggregate his/her claims against each D even if the claims
are unrelated
A. 28 U.S.C. §1332 – Diversity of Citizenship; Amount in Controversy; Costs
28 U.S.C. §1332 – Diversity of Citizenship; Amount in Controversy; Costs
a) The district courts have original jurisdiction over all civil actions with an
amount in controversy that exceeds $75,000 and is between—
(1) citizens of different States; MOST COMMON
Example: P (CA) v. D (NY)
(2) citizens of a State and citizens or subjects of a foreign state, except that the
district courts shall not have original jurisdiction under this subsection of an
action between citizens of a State and citizens or subjects of a foreign state who
are lawfully admitted for permanent residence in the United States and are in
the same State;
Example: P1 (CA); P2 (Mexico) v. D1 (NY); D2 (Peru)
P1 (CA); P2 (Mexico) v. D (Japan)
(3) citizens of different States and in which citizens or subjects of a foreign state
are additional parties; and
Example: P1 (CA); P2 (Mexico) v. D (NY)
Domicile under §1332(c)?
Individual – place of domicile
- Can only be a “citizen” of one state
Corporation defined under 1332(c)(1) – Place of Incorp AND PPB
a corporation shall be deemed to be a citizen of every State and foreign state by which
it has been incorporated and of the State or foreign state where it has its principal
place of business
- Can be a “citizen” of multiple states
Amount in Controversy Case (Salmi)
B.
Aggregation – When one adds multiple claims to get over $75,000. Each P and each
D
Example:
- contract claim for $50K and tort claim for $30 K v. D1 YES
- contract claim for $50K D1 and tort claim for $30 K D2 NO
Diversity SMJ Amount in Controversy and Citizenship Class Hypotheticals
PRACTICE
1. CA ($50K and $24K) v. Japan?
- Citizenship is satisfied under §1332(a)(2) because plaintiff is a citizen of the
state of CA and defendant is citizen of (Japan) foreign country
- Amount in controversy NO, not satisfied because $50K to $24K is only $74K
which does not exceed $75K
2. CA v. Mexico ($50K) & Japan ($50K)?
- Citizenship is satisfied under §1332(a)(2) because plaintiffs are citizens of CA
and Mexico and defendant is a citizen of Japan
- Amount of controversy NO, not satisfied because amount cannot be added
against multiple defendants
3. CA ($76K) & Mexico ($50K) v. NY?
- Citizenship is satisfied under §1332(a)(3) because plaintiffs are citizens of New
York and Mexico and defendant is a citizen of New York
- Amount of controversy NO, not satisfied because P2’s claim does not equal
$50K
IV.
§1367 Supplemental Jurisdiction
Allows you to join in related state law claims in federal court. If you don’t have
a federal question or diversity jurisdiction then you cannot have supplemental
jurisdiction.
- You cannot bring a supplemental jurisdiction claim if that jurisdiction
would destroy already set diversity
Example: Defendant (usually) cannot bring a third party claim vf
Supplemental Jurisdiction Skeleton IRAC
1) 1331 is it a federal question?
Yes, Move to #3
No, Move to #2
2) 1332(a)(1) and 1332(a)(2) and §1332(a)(3) is diversity jurisdiction
satisfied?
Yes, Move to #3
No, STOP
3) 1367(a) is ONLY satisfied because the claims are related
NARROW EXCEPTION TO 1367(b)
with related claims that satisfy SMJ “same case or controversy” requirement will be
deemed to have supplemental SMJ:
- P1 & P2 v. D
- P1 $75K+ claim
- P2 related claim less than $75K claim
- Aggregate? NO
- Supplemental SMJ? Yes, if claims arise out of “same case or controversy”
- Essentially the same test as for ”relation back” under FRCP 15 amendments
IMPORTANT: Allapattah ONLY applies when you have diversity and multiple
plaintiffs not defendants
4) 1367(b) applies to plaintiff unless you have an Allopattah issue
Example 1
P1  D1
Federal Labor Standard Act (FQ)
State Law (under the same controversy)
-
a. Who has original jurisdiction over each claim?
FLSA – federal jurisdiction
State Law – state jurisdiction
So far (a) & (b) together establish two steps to supplemental jur inquiry:
1. Test if the claims are sufficiently related -- arise from the same nucleus of
operative facts;
2. Check whether independent claim is fed Q or diversity, if diversity, test
against (b)
MISCELLANEOUS RULES
1. FRCP Rule 6 – Computing and Extending Time; Time for Motion Papers
The following rules apply in computing any time period specified in these rules or in any local rule, court
order, or in any statute that does not specify a method for computing time
(a) Computing Time
(1) Period States in Days or a Longer Unit
A.
Excludes the day of the event that triggers the period,
B.
Count every day, including intermediate Saturdays, Sundays and legal holidays; and
C.
Include the last day of the period, but if the last day is a Saturday, Sunday, or legal
holiday, the period continues to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday
(2) Period States in Hours
(3) Inaccessibility of the Clerk’s Office
(4) “Last Day” Defined
(5) “Next Day” Defined
(6) “Legal Holiday” Defined
(b) Extending Time
1.
In General
2.
Exceptions (Applies to Rules: 50(b), 50(d), 52(b), 52(d), 52(e), and 60(d)
(c) Motions, Notices of Hearing, and Affidavits
1. In General
2. Supporting Affidavits
(d) Additional Time After Certain Kinds of Service
List of things to identify in exam case bank
State of Domicile – Individual
State of Incorporation – Business
Primary Place of Business – Business
All Specific Jurisdiction Possible Characteristics
Contacts
Nicastro – contacts
Relatedness
Ford – Yes its close enough
BMS – No, it’s not close enough
Think big before getting into weeds
POSSIBLE EXAM QUESTOINS/IMPORTANT NOTES
PJ, Venue, SMJ
Can you as a plaintiff bring this combination of claims against this combination of
parties in this court (encompasses personal jurisdiction, venue, and subject matter
jurisdiction)?
PJ, Venue, SMJ Notes
- You will not have an exam question about a car. It will be something else. It will
likely regard a SoC question, i.e., Ford fact pattern jazzed up
- In a personal jurisdiction analysis, you will ALWAYS argue one of the cases we
have studied. You want to make sure that you argue whatever cases you can and
compare and contrast cases that are relevant to the hypothetical if you can.
- If details just aren’t there on the exam to fill in a gap, SAY the details you would
need to know in order to come up with a definitive answer!
Transfer
XV.You’re the defendant, you’ve been sued here, tell me what your options are
(what are the things you could do (could layer in facts for a 12(b)(6), 12(b)(2), or
Transfer analysis)
XVI.
You’re the plaintiff, in the face for a motion to dismiss for improper
venue, what are your arguments against that
a. Argument against dismissal
b. Argument for Transfer to X (pick a venue)