Civil Procedure Outline: Table of Contents
Personal Jurisdiction Exam Strategy
Conflict of Laws Exam Strategy
The Legal System & Role of Procedure
Justiciability
Subject Matter Jurisdiction
Personal Jurisdiction
In Rem & Quasi in Rem Jurisdiction
Procedural Due Process – Notice
Venue
Conflict of Laws
Pleadings
Joinder
Class Action
Summary Judgment
Discovery
Juries
Claim Preclusion
Issue Preclusion
Stare Decisis
Statutes and Rules
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3
3
4
4
7
12
13
14
15
19
23
24
25
27
29
31
33
35
36
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Civil Procedure Exam Strategies
Professor Cavanaugh
Personal Jurisdiction Exam Strategy:
1. Statute: determine whether a statute permits personal jurisdiction on the facts of the case.
a. No statute, no personal jurisdiction – even it would be constitutional
b. If in personam case, statute might:
i. Grant jurisdiction over a Defendant domiciled in the forum state
ii. Grant jurisdiction over a Defendant who was served with process in the state
iii. Grant jurisdiction over a nonresident Defendant who was not served in the state.
1. Two types:
a. Nonresident motorist statute
b. Long-arm statute
2. These statutes grant specific jurisdiction (i.e. claim asserted against D arose from
something D did, or an effect D caused in the forum)
c. If an In Rem or QIR case, it will be an attachment statute
i. Requires court attach property that D owns or claims to own, which is within the forum,
at the outside of the case
2. Constitution
a. In personam case:
i. Do facts fit traditional bases from Pennoyer?
1. If yes, say the four justices in Burnham would find that fact sufficient w/out need
to assess Shoe. But, because four justices held Shoe always applies, move on to
Shoe.
2. If no, go straight to Shoe analysis.
ii. Proceed with International Shoe Analysis
1. Must be a relevant contact b/n D & forum.
a. Relevant contact is one that results from purposeful availment by D – not
from the unilateral act of a third party.
b. Relevant contact is one that renders it foreseeable that D would get sued in
the forum (World-Wide)
i. Are the facts more like McGee (D solicited business from forum)
or like Hanson & World-Wide (in which contract was act of third
party)?
c. If there is relevant contact, ask…
2. Does P’s claim arise from D’s contact with the forum?
a. If yes, there is specific in personal jurisdiction
b. If no, must meet test for general jurisdiction. Here, ask:
i. Does D have such continuous & systematic ties w/ the forum that
she be considered “essentially at home” there (Goodyear &
Daimler).
1. For humans: includes state of domicile
2. For corporations: includes state of incorp. & PPoB
3. Would jurisdiction be fair or reasonable under the circumstances (offend
traditional notions of fair place and substantial justice)?
a. For general jurisdiction cases, Daimler says this step doesn’t apply.
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b. For specific jurisdiction cases, Burger King lists five relevant factors:
i. Inconvenience for D and her witnesses
ii. Forum state’s interest
iii. P’s interest in litigating in the forum
iv. Legal system’s interest in efficiency
v. Shared substantive policies of the states
c. D bears a heavy burden in claiming that in personam jurisdiction would
not be constitutional in the forum b/c it is unfair or unreasonable.
b. In Rem or QIR case:
i. Explain whether it is in rem or QIR
ii. State that Shaffer requires that D’s contacts with the forum satisfy Shoe
iii. Go through Shoe analysis above
Conflict of Laws Exam Strategy:
1. Spot the issue: in a (usually diversity) case, must a fed judge apply state law, or is she free to ignore state
law?
2. Hanna Step: Is there a federal directive (Constitution, Fed Statue [Stewart], or FRCP) that covers the issue?
a. Is the federal directive valid?
i. Constitutional provisions are automatically valid.
ii. Fed statutes are valid if they fall w/in Congress’s power to legislate under Art. I
iii. FRCP is valid if it satisfies the Rules Enabling Act, §2072, which states the Rules “shall not
abridge, enlarge, or modify any substantive right.”
1. Four justices in Shady Grove argued REA is satisfied if Rule can be characterized as
“arguably procedural” – so argue whether it is or not.
2. One justice argued court must look at competing state law’s objective.
3. All five agreed Rule 23 (class action rule) was valid under REA
b. If yes to both – federal court must apply the federal directive, not the state law/rule
3. Erie Step: If no federal provision is on point, ask: is the law “outcome determinative”? (Guaranty)
a. Is there a fed interest that outweighs the state interest? (Byrd)
b. Would applying federal law/not applying state law offend Erie by:
i. encouraging forum shopping; or
1. Will it cause a rush to federal court to avoid the state law?
ii. Inequitably administering law
1. Will it benefit out of state plaintiffs more than in state plaintiffs?
iii. If failure to apply state law would not do either of the above, court is free to apply fed direct.
Civil Procedure Outline
Cavanagh – Fall 2018
I. The Legal System & Role of Procedure
A. Alternative Dispute Resolution – quicker & faster than litigating
a. Arbitration: intermediary brings parties together to find solution, binding
b. Mediation: intermediary brings parties together to find solution, not binding
c. Rent-A-Judge: example is Judge Judy, usually only matter of public record is final judgment
d. Mini-Trial: used for complex cases involving corporate entities, big legal fees savings
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e. Summary Jury Trial: empanel jury to hear arguments, not a real/full case
B. The Adversary Process
a. Eisenlohr v. Kalodner (1944): judge investigating claim after parties resolved it out of court
i. Judicial power is limited to deciding controversies
b. Frummer v. Hilton (1967): P slipped in shower at hotel, lost negligence suit b/c used wrong
law
i. Court can order a new trial in the interests of justice
II. Justiciability
A. Judges only hear cases where parties have standing + issues ripe, not moot + issues are justiciable
a. Mootness
i. Regardless of ruling, events will occur, or issues have been resolved by the course of
events
ii. DeFunis v. Odegaard (1974): white law school applicant claimed affirmative action
was discriminatory, sued for admission, by the time SCOTUS heard appeal he was a
3L
1. Court won’t decide b/c controversy has ceased to be concrete & definite,
rights of litigants will not be affected by a court judgment
iii. Possible exception if issues are capable of repetition (AT&T v. Link Line)
b. Standing
i. Do you have a personal stake in the matter?
1. Spokeo v. Robbins (2016): P disseminated incorrect info about D & others,
lower court found D’s injuries particularized but did not prove concreteness
a. Harm suffered must be particularized & concrete
ii. Are you in the best position to sue?
1. Most appropriate P, not one who has suffered via “ripple effect”
a. Concerned bystander is not enough
b. Hollingsworth v. Perry (2013): P opposed a court’s ruling that a voter
passed proposition against same sex marriage was unconstitutional
i. P can’t sue b/c they have no direct stake in the outcome
iii. No standing = no case or controversy
c. Justiciability comes from Art. II, §2. Nonjusticiable issues include: political Qs, advisory
opinions, “friendly suits”
B. Political Questions
a. Some decisions are better left to other branches
b. Georgia High School Association (1981) – executive/administrative
i. Can’t review decisions by HS football referees b/c no judicial controversy
c. Cudahy (1969) – legislature
i. Can’t settle wager on fluoride referendum b/c it’s a leg issue/matter for people
C. Advisory Opinions
a. Make decisions, do not advise decisions
D. Friendly Suits
a. Where D funds P suit; no adverse interest
III. Subject Matter Jurisdiction
A. Fed courts can only hear if Congress has granted jurisdiction
i. Cannot be bestowed by the parties through consent
ii. Objection to SMJ is not waivable, can be motioned any time before final judgment
iii. Burden is on P to plead SMJ
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B. Diversity Jurisdiction
i. §1332: Diversity of citizenship (complete diversity)
a. 1332(a)(1) diff states on diff sides
i. Strawbridge v. Curtiss (1806): in order for there to be diversity jurisdiction,
there has to be complete diversity of citizenship
b. 1332(a)(2) States versus foreign
c. 1332(a)(3): alienage jurisdiction – foreign parties
i. Can be same foreign country, diversity only relevant for state parties
ii. State versus only foreign is not in statute
iii. Newman-Green v. Alfonzo Larrain (1987): A U.S. citizen domiciled abroad
cannot be sued under 1332 – must be domiciled w/in a state
iv. Alien who is a permanent resident is not deemed a citizen of the state of
domicile
d. 1332(c): Corporation citizenship
i. Citizen of both the state in which it is incorporated & state which in which it
has its “principal place of business”
a. Principal place = “Nerve Center” (Hertz)
ii. Hertz v. Friend (2010): D claimed violation of CA wage laws, Hertz says
principal place of business was NJ
a. Principal place of business refers to place where corporation’s officers
“direct, control, & coordinate activities”
ii. Establishing Diversity
a. Must be a citizen of U.S., domiciled in state
i. Domicile: permanent abode (dwelling) where you intend to return
a. Intent can be established by tax returns, drivers’ license, voter reg., etc.
ii. Only one domicile; can only get rid of one when you acquire a new one.
iii. Domicile determined at time of filing.
iii. Exceptions to diversity  claims that stay in state court
a. Domestic Relations: limited to divorce, alimony, custody
b. Probate Wills: wills, trusts, estates
i. Marshall v. Marshall (2006): very limited exception, claim did not directly
involve validation of will or administration of estate so, fed courts had
jurisdiction
c. Long tradition of abstention b/c state courts have greater expertise & resources
iv. §1335: Interpleader (Rule 22)
a. Stakeholder commences action to combine potential claimants, pay policy to Court,
& let Court decides who receives it
b. State Farm v. Tashire (1967)
i. Greyhound bus accident w/ truck, 11 passengers Canadian, rest from 5 U.S.
states. State Farm has policy over D truck driver, intervenes w/ interpleader
ii. Insurance Company doesn’t have to wait for claimants to reduce claims before
invoking interpleader
c. Protects stakeholders from multi-liability
d. Only requires minimal diversity – (at least one P’s domicile is diff from at least one
D’s domicile) – so here, citizenship of P (insurance company here) doesn’t matter.
C. Fed Question Jurisdiction
i. §1331: Fed Question, arises under Constitution, Fed Law, or Treaty
ii. The Well-Pleaded Complaint Rule
a. For there to be a fed Q, it must appear on the face of the complaint (Mottley)
i. Louisville & Nashville RR v. Mottley (1908): Mottley’s were injured in a RR
crash in 1871 & didn’t sue in exchange for lifetime passes. RR stops in 1908
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after Congress regulates. Mottley’s claim law doesn’t apply here & if it does,
violates the 5th amend (right to property).
ii. Fed Q cannot be predicated on P’s anticipation that it will be raised in D’s
defense. Must be basis of complaint.
b. Must be basis for P’s cause of action
c. Court limiting entrance to fed courts
iii. Skelly Rule: for declaratory judgment – asks which party would sue if not for declaratory
judgment and would that party be the one raising the federal question
iv. Fed Administrative Procedures
a. Grable (2005): IRS took P’s house for failure to pay fed taxes, P sued, IRS said he
had to sue in fed court b/c he is questioning fed admin procedures. Court agreed – fed
Q was “fundamentally embedded” in state law claim
v. No minimum damages requirement
vi. Most claims have specific jurisdictional basis (federal courts have exclusive jurisdiction)
a. §1337: antitrust/securities & exchange
b. §1338: patent/copyrights
c. §1339: postal matters
d. §1343: civil rights
e. Admiralty
f. Bankruptcy
D. Supplemental Jurisdiction
i. Pendent Jurisdiction (Gibbs)
a. Common nucleus of operative facts
i. State claim combined w/ fed claim w/ one P
b. Ancillary Jurisdiction
i. Ability of court to hear all claims b/n parties (i.e. counter claims, cross claims)
ii. Rule 14: Impleader, Third Party Action
a. Complete diversity doesn’t apply
ii. Pendent-Party Jurisdiction (Finley)
i. Fed/State claims against 2 defendants w/out diversity
ii. No good; needed new statute, given by Congress in 1990
iii. §1367: Supplemental Jurisdiction
a. §1367(a): extends jurisdiction, overrules Finley
i. Broad grant of jurisdiction w/in same case. Once court has original
jurisdiction over some claims, it may use supplemental jurisdiction for
additional claims & parties that are part of the same case/controversy.
ii. Finley (1989): widow sued San Diego in CA State Court then sued FAA to
get in fed court. Court said pendent-party (one fed party, one state party)
wasn’t ok. §1367(a) passed in response.
b. §1367(b): Limits jurisdiction; reaffirms Owen
i. Where SMJ is only based on diversity, can’t use supplemental jurisdiction
ii. Purpose is to prevent manipulation
iii. Owen Equipment v. Kroger (1978): Widow (IN) files wrongful death suit
when husband electrocuted while working on power line. Filed against NE
power company, Owen (IN) becomes 3rd party, but then sole D.
a. Judicial economy argument not enough to justify creating a loophole
to diversity jurisdiction’s standard of complete diversity
c. §1367(c): where courts can exercise discretion - reaffirms Gibbs
i. UMW v. Gibbs (1966): Gibbs alleged union pressured coal company to fire
him. Brought suit under Taft-Hartley & TN law. Only TN law applied. In
order for fed court to hear both fed/state law claims, they must derive from
“common nucleus of operative facts.”
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ii. Pendent Jurisdiction: 2 claims (1 fed, 1 state) w/ common nucleus of operative
facts
iii. Supplemental jurisdiction is purely discretionary, not a P’s right
iv. Established for the sake of judicial economy
iv. Rule 23: Class Action
a. Cannot aggregate claims across parties (76 Ps, each w/ $1K)
b. Aggregated claims w/ same party allowed (1 P w/ 1 claim = $30K + 1 claim = $45K)
c. Exxon: if rep meet 75K, then it’s appropriate for supplemental jurisdiction
d. Exxon v. Allapattah (2005): Class action of 10,000 dealers against Exxon. Not all Ps
meet $75K amount in controversy requirement.
i. If court has original jurisdiction over a single claim, it has jurisdiction over
“civil action” w/in §1367(a), so not all Ps must meet amount in controversy as
long as one does.
E. Removal: §1441
i. Only D can remove (only time D can select the forum)
ii. Removal turns on basis for SMJ
a. Fed Q: irrespective of D citizenship (Absolute)
i. Exceptions: employment, railroad, seamen
b. Diversity: citizenship an issue (Based on situation)
i. If basis for removal is diversity, & D is sued in home state, removal not
allowed
IV. Personal Jurisdiction
A. In personam jurisdiction
i. Service of process while present w/in jurisdiction
a. Court has power over D
b. D has notice (due process)
c. Pennoyer v. Neff (1878)
i. Jurisdiction can be exercised if served personally w/in bounds of the state
ii. States all-powerful w/in boundary & powerless outside boundary
iii. Art. IV Full Faith & Credit: When judgment of one state enforced in another,
it must be respected. Unless original jurisdiction was invalid
ii. Consent
a. Expressed consent
i. Contracts, decided in advance
b. Implied consent
i. Participation w/out jurisdiction as defense – waiving defense
ii. Notice of appearance – D entitled to reasonable notice (due process)
iii. May not be voluntary – corporations appoint agent of process w/in state in
order to conduct business w/in the state
iii. Domicile
a. Temporary absence of state citizen does not nullify jurisdiction (even if served
outside state)
iv. Act
a. Commit act w/in state; jurisdiction expanded
v. Characteristics of judgment based on Personal Jurisdiction
a. P can collect against any of D’s assets
i. Does not have to be related to claim
ii. Must enforce judgment in each state, but does need to bring new claims
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B.
C.
D.
E.
F.
G.
H.
iii. Art. IV: FF&C – all other states must respect judgment of one state, unless
there is a Q of jurisdiction
vi. Challenging Jurisdiction
a. Collateral Attack
i. Any challenge versus judgment other than appeal
ii. Issue of jurisdiction; assert defense in enforcement of judgment
In Rem - “Against the object”
i. Mortgage foreclosure
ii. Forfeiture procedure
iii. Partition actions; divided proceeds from property sale
iv. Maritime actions; seize the ship
v. Matrimonial actions; marriage – status
Quasi in rem – Court made jurisdiction; common law
i. Used if personal jurisdiction unavailable b/c individual not there, & proceeding is not in rem
a. Seize property w/in state w/ Order of Attachment
b. Jurisdiction of last resort
Presence (common law basis)
i. Individuals have one (domicile), corporations have two (principal place of business &
incorporation)
ii. Presumption = presence grants jurisdiction
iii. Cooper v. Wyman (1898): Cooper was served while in state to testify in another trial
a. Exception to presence in transient jurisdiction (Pennoyer). Privilege exists to
witness/be party in other cases in the state for sole reason of litigation.
b. Jurisdiction is not void, merely voidable as a matter of public policy. Burden on D.
iv. Wyman v. Newhouse (1937): Newhouse fraudulently enticed into FL by lover.
a. If presence w/in state fraudulent, then jurisdiction is voidable.
Appearance
i. Appearance in case gives consent & voluntarily grants jurisdiction
ii. “Special appearance”: before court for sole purpose of challenging jurisdiction – NEVER
Default. There is no special appearance anymore.
a. Harkness v. Hyde (1878): writ of attachment served to Harkness from ID territory to
Indian reservation. Service not valid
i. Special appearance can be used as mechanism to challenge jurisdiction.
Consent (common law basis)
i. Expressed (contract or appearance) or Implied (statute, see Hess)
ii. National Equipment Rental v. Szukhent (1964): breach of K for farming equipment. MI
farmers & NY company. K named Weinberg as agent for service, she voluntarily mailed
service to MI farmers.
a. K Choice of Forum Clause: arrangement is alright as long as there is equal bargaining
power b/n parties
iii. Leg. has to prescribe method of service for state agent suing private citizen (statutorily
implied)
Domicile & Nationality (statutory basis)
i. Milliken v. Meyer (1940): Milliken brought original suit in WY, Meyer served in CO, Meyer
brings suit in CO to override WY judgment
a. State can exercise jurisdiction over domiciled citizen even if citizen is outside of
state. Temporary absence doesn’t change jurisdiction.
b. State grants citizens protections/privileges (like fire, police) & so obligations also
continue when absent
i. Basis for jurisdiction = statute (expansion of Pennoyer)
Claims Arising from Local Acts or Consequences (statutory basis)
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i. Hess v. Pawloski (1927): PA resident struck MA driver in MA. Statute allows registrar to
serve as agent through implied consent. PA resident says he never consented.
a. Basis for jurisdiction = implied consent
i. Express revocation of consent would not nullify jurisdiction
b. Commission of tortious act within the state is real basis for jurisdiction
c. MA has a duty to protect citizens & regulate highways
ii. International Shoe v. Washington (1945): WA bring suit administratively for
unemployment tax. Int’l Shoe challenges jurisdiction.
a. Minimum contacts require:
i. Systematic & continuous activities
ii. Relationship b/n conduct within the state & cause of action
b. “Due process requires only that in order to subject a D to a judgment in personam, if
he be not present w/in the territory of the forum, he have certain minimum contacts
w/ it such that the maintenance of the suit does not offend ‘traditional notions of fair
play & substantial justice.’”
i. (1) No systematic/continuous & cause of action unrelated = no jurisdiction
(2) Systematic/continuous & cause of action related = jurisdiction
(3) No systematic/continuous & cause of action = it depends (see McGee)
-also known as specific jurisdiction
(4) Systematic/continuous & action unrelated = some say yes
c. Broader exercise of jurisdiction, due process based on state law
i. Jurisdiction no longer stops at the border
ii. Int’l Shoe doesn’t confer jurisdiction over anyone, gives states authority to
pass long arm statutes which confer jurisdiction
d. Standard applied to both corporations & individuals
iii. McGee v. International Life Insurance (1957): mother of deceased policy holder (CA)
brings suit against TX insurance company, won’t pay benefits. TX claims CA has no
jurisdiction.
a. Clarification of Area 3 under International Shoe
b. Connection: (1) K w/ CA resident & (2) accepted premiums from CA
c. Fair Play: Unreasonable for individual to challenge insurance company in TX. Not
unreasonable for TX to challenge individual in CA.
iv. Kulko v. Superior Court (1978): mother (CA) sues ex-husband (NY) in CA under their longarm statute for child support. Court says CA lacked personal jurisdiction b/c fathers contacts
were too attenuated (goes against traditional notions of fair play under Shoe)
v. NY Long-Arm Statute §302(a) personal jurisdiction over non-domiciliaries
a. Transacts any business w.in state or Ks for goods/services
b. Commits tortious act w/in state
c. Commits tortious act out of state causing injury to person/property w/in state
d. Owns, uses any real property w/in the state
e. Does not cover defamation in or out of state
I. Surviving Limitations
i. Hanson v. Denckla (1958): trust asset dispute b/n sisters. Mom established trust through DE
bank, then moved to FL. FL exercised jurisdiction over her trust in dispute b/n sisters. No
jurisdiction b/c DE bank had no minimum contacts.
a. Diff from McGee b/c DE trustee doesn’t perform acts in FL that bear some
relationship to the solicitation by Insurance Company to CA in McGee
b. Clarifies “Minimum Contact”: D must “purposefully avail” themselves for privilege
of conducting activities in forum state. Must act in the state & gain rights/privileges
from state
c. Narrows McGee, divergence clarified in World-Wide Volkswagen
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ii. World-Wide Volkswagen v. Woodson (1980): family driving from NY to AZ pass through
OK, get in accident & Audi explodes, causing injury. Suit against Audi (Germany), VW
(Germany, WWV (NY distributor), Seaway (NY dealer) in OK State Court. Judge says
jurisdiction, WWV seeks writ of prohibition to bar jurisdiction (non-appealable order)
a. P argues car is mobile, so it is “foreseeable” that it could end up in forum
i. Court: narrower definition of foreseeability. P cannot make himself the agent
for process. Jurisdiction based on fortuitous circumstances is not enough.
Need more.
ii. Stream of Commerce + expectation of reaching forum (the more)
a. Expectation leads to foreseeability
b. Rule: Due process must focus on relationship b/n (1) D, (2) litigation, (3) forum
i. Brennan dissent: fairness should also include (4) P
c. What if P has no connection to forum state? (Keaton v. Hustler)
i. Lack of connection not disqualifying, P is not irrelevant where D meets
minimum contact requirements.
ii. Calder v. Jones (1984): P sues National Enquirer & reporter/editor in CA for
defamation. P’s domicile in CA makes a diff b/c the story was targeted to that
audience (those who knew her). Therefore, P’s connection binds D’s to forum.
a. Targeted conduct can create personal jurisdiction
iii. Burger King v. Rudzewicz (1985): after a failed franchise, Rudzewicz is sued by BK for not
closing store. Claims no jurisdiction by FL court b/c no connection w/ FL
a. Rule 4(k)(1): borrowing provision of state law for fed application
b. D could foresee litigation in FL b/c he created a long-standing relationship w/ FL
through his franchise K. Min. Contact standard was met.
i. D targeted conduct to forum state (“purposefully directed”)
c. Presumption created that if there are (1) Minimum Contacts, then there’s (2) Fairness.
The two are interrelated.
i. If no contacts – no jurisdiction
ii. If barely “minimum contacts” – ask: is it fair?
a. If so, it’s constitutional for court to proceed w/ lesser showing of min
con
iv. Asahi v. Superior Court (1987) – Japanese valve manufacturer challenging jurisdiction over
exploded tire in CA -- & McIntyre v. Nicastro (2011) – injury from metal shearing machine
in NJ.
a. Both make clear that more than stream of commerce is required for due process, such
as Stream of Commerce PLUS (e.g. advertising/marketing) -- PLURALITY
OPINIONS, DON’T USE
v. Walden v. Fiore (2014): Professional gamblers get money taken away in Atlanta then sue in
Nevada b/c that is where they live and that is where they were affected by seizure.
a. “D <-> P” not enough; “P <-> state” not enough; “D’s actions <-> P’s injuries <->
state” not enough; MUST HAVE “D’s actions <-> state”
vi. Bristol-Myers Squibb v. Superior Court (2017): CA Court said the greater your contacts
are w/ the state, the less important the connection b/n cause of action of Ps & specific state
activity
J. Doing Business: Testing General Jurisdiction
i. Bryant v. Finnish Airlines (1965): In Paris, Bryant was injured when a baggage cart struck
her, blown by a gust from a Finnish Airline aircraft parking. Sues in NY.
a. Area 4: General Jurisdiction – systematic/continuous activity in NY but activity
unrelated to incident – so no jurisdiction here
b. “Corporate Presence Doctrine”: theoretically, corporations can be anywhere. But if it
has office soliciting sales, then it can be “present” w/in the forum.
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i. If you’re conducting business in state, it is not unfair to subject you to
jurisdiction
ii. Ongoing contact, but not substantial
c. Overruled by Goodyear v. Brown (2011)
ii. Perkins v. Benguet Mining (1952): after Japanese occupation of Philippines, Benguet’s
CEO returns to OH & conducts business activity there. Suit opened by shareholder in OH
seeking dividends.
a. The first test of general jurisdiction: doesn’t offend due process
i. “OH was the principal, if temporary, place of business”
ii. Temporary nerve center = at home in OH
b. Problem is whether Court intended jurisdiction to be applied to all, or were the facts
in this specific case so extraordinary that it warranted General?
iii. Helicopteros v. Hall (1984): Helicopter crash in Peru, families of decedents sue in TX.
Colombian comp., but helicopters manufactured in TX, K negotiated in TX, & training of
pilots done in TX.
a. The connection to forum is not selling a product (Nicastro) but buying a product – it
makes a difference!
i. Court says no jurisdiction but not b/c General is limited
ii. Conduct by Helico is too sporadic & isolated, not systematic & continuous
iii. Helicopteros only shows that Area 4 is not limited to Perkins
iv. Goodyear v. Brown (2011): young soccer players on bus to airport to return home from
Paris, Bus overturned, two 13 y.o. boys killed. Families sue Goodyear USA, & subsidiaries
(France, Luxembourg, Turkey) in NC State Court.
a. Area 4 Case: General Jurisdiction
b. P makes argument that “Stream of Commerce” ties Ds to forum
i. Ginsburg: Stream of Commerce is only related to specific jurisdiction, not
general
ii. Continuous activity of some type, but unrelated
c. Rule: For General jurisdiction, must show D is “At Home” w/in the forum. –
“Substantial/Ongoing” is no longer enough.
i. General narrowed substantially
ii. Factors include Principal Place of Business & Incorporation
a. Perkins still accepted by Court but Q of what constitutes “At Home”
still open
d. Overrules Bryant v. Finnish Airlines (1965)
v. Daimler AG v. Bauman (2014): 22 foreign Ps sue German company for alleged human
rights violations in Argentina’s “Dirty War” under 28 USC §1350 (Alien’s action for tort)
a. Basis for jurisdiction: CA’s substantial contract w/ MBUSA, subsidiary of Daimler
b. The Question: Is Daimler “at home” in CA?
i. Daimler has significant activity in CA, but that is no longer enough
ii. Shut door to foreign claims; limit foreign Ps w/ foreign concerns against
foreign Ds
iii. “At Home” = (1) PPoB or (2) Incorporation [but other factors still considered]
c. General: jurisdiction of last resort, much less important than specific
vi. BNSF Railway v. Tyrrell (2017): reiterated what they said about standard for company to be
“at home” for jurisdiction as stated in Goodyear & Daimler
K. Fed basis for jurisdiction w/out a fed long-arm statute
i. Rule 4: fed courts can borrow state long-arm
a. Rule 4(k)(1) the “borrowing” rule for when a case arises out of state law
b. Rule 4(k)(1)(b)
i. Boundaries irrelevant up to 100 miles
ii. Allows impleader cases to be facilitated in 1 action
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c. Problem: what if there is a limited statute?
i. It doesn’t go as far as Due Process will allow
ii. Gap b/n what is authorized & what is allowed
ii. Diversity case: state law must govern
a. Non-diversity cases: fed Q, but state law still basis for jurisdiction
b. Wolf: There is one standard for the 5th & 14th Amendments, which is International
Shoe. If state doesn’t provide jurisdiction, then you can’t proceed
i. 14th governs state due process; 5th is fed due process
c. Lead to Limited Fed Long-Arm Statute
i. Rule 4(k)(2): claim made under fed law & D outside U.S. w/ no minimum
contacts w/ particular state, but w/ U.S. as a whole, then jurisdiction
iii. Internet’s effect on presence
a. Division b/n interactive & passive websites
i. Interactive (selling goods) can provide presence, passive (informational)
cannot
ii.
V. In Rem & Quasi In Rem
A. Quasi In Rem
i. QIR Overview: P has claim against D for in personam claim like debt, but D hides or flees
state so can’t be served. If D has property (i.e. car) in state, you can seize it (usually w/ court
order). You take default judgment, state sells car, you get your damages
ii. Combs v. Combs (1933): creditor tries to sue debtor (brothers) but can’t find him in KY.
Debtor sues creditor to release lien on AR property & pay debt in AR court. Can AR court do
both?
a. AR had in rem jurisdiction to remove lien on property w/in their bounds but did not
have authority to declare debt b/c no in personam jurisdiction over creditor
iii. Harris v. Balk (1905): Harris (NC) owes Balk (NC) owes Epstein (MD). When Harris is in
MD, Epstein serves him. Epstein acquires quasi in rem jurisdiction over Balk’s debt. Debt is
the asset (aka Harris) of the creditor.
a. An intangible asset can be seized.
iv. QR developed by common law b/c of limited scope provided by Pennoyer w/ personal
jurisdiction
v. Pre-judgment attachment – to secure recovery: seizure of property for QIR, or to make sure
D doesn’t flee jurisdiction w/ asset
vi. Post-judgment attachment – to execute judgment: proceed against assets
a. QIR is only good up to the amount attached
vii. Shaffer v. Heitner (1977): shareholder’s derivative suit. Seize the assets (stocks) of officers
of the corporation; DE statute: All shares are w/in DE.
a. Rule: Due process requires minimum contacts, even in QIR jurisdiction.
Fortuitous presence of property ≠ minimum contacts. QIR is merely a fiction as
a means to personal jurisdiction.
i. All assertions against D must meet the standards of International Shoe.
b. QIR still not dead, can be exercised separated from personal jurisdiction where there
is a gap b/n statutory authorization & the extent of due process
i. Ex. Defamation case
B. Broadening of Shaffer
i. Burnham v. Superior Court of CA (1990): Burnham served for CA divorce proceeding by
wife when he was visiting his kids in CA. Claims min. contacts must apply to transient
jurisdiction under Shaffer
a. Scalia: personal service w/in state borders is enough b/c of “historical pedigree”
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b. Brennan: by virtue of being in state, you have benefit of state, so purposeful
availment
c. PLURALITY OPINION: everyone agrees transitory jurisdiction does not offend due
process, just can’t agree why
ii. Can P collaterally attack an F1 judgment that he won?
a. Yes, if there was no jurisdiction then the action is void anyway
VI. Procedural Due Process – Notice
A. If notice is defective, jurisdiction is defective
B. Effective & sufficient notice
i. Mullane v. Central Hanover Bank (1950): common trust accounting action. Bank informed
beneficiaries under Ny statute allowing publication but knew the addresses of some
beneficiaries.
a. In all exercises of jurisdiction, due process demands that notice be reasonable (affords
the opportunity to be heard)
b. To the extent that Bank does know the beneficiaries, publication is insufficient.
However, publication is reasonable for unknown beneficiaries.
i. Retires Pennoyer notion that an owner of property always knows where it is
C. Choice of Forum Clauses
i. Commercial clause that allows level of predictability to parties
ii. “Ouster Clause”: Parties agree on exclusive jurisdiction, providing absolute certainty
a. Modern courts allow Ouster Clauses b/c party expectations should be honored to
promote efficiency & predictability
iii. Carnival Cruise v. Shute (1991): Shutes receive their tickets for a cruise. In the bottom
corner is an Ouster Clause requiring lawsuits in FL. When Mrs. Shute is injured on the
cruise, they bring a suit in their home state of WA (fed court).
a. No bargaining power; first time seeing the K was when the tickets arrived, already
purchased & paid
b. Court still says it is an enforceable K: predictability, efficiency, & cost saving (which
eventually goes to consumers… [unlikely])
i. Congress later passes statute to limit the abuse of consumers
VII. Venue & Forum non conveniens
A. Venue is where jurisdiction can be exercised as denoted by legislative process (Congress’ way of
dividing up business of the court), Venue is separate from jurisdiction
i. Fundamental diff: case w/out jurisdiction is void, improper venue never voids a result
ii. §1391: Venue Generally
a. Applicability of section –
i. Governs all district courts
ii. No regard to difference b/n local or transitory
b. Venue in General – (where venue is proper)
i. Any district where D resides, if all Ds are residents of the same state where
district is located (doesn’t apply to Ds of diff states)
ii. District where substantial part of events took place
iii. “Catch All Clause”: No district where an action may otherwise be brought,
any district in which any D is subject to personal jurisdiction of the court
(equates venue w/ jurisdiction) – i.e. where court has PJ over D
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iii. Gulf v. Gilbert (1947): gas delivery destroys storage warehouse in VA. Gilbert sues in NY
for $400K. Gulf seeks forum non conveniens back to VA.
a. Courts may apply the doctrine at their discretion
b. Factors considered
i. Private interests
a. Access to evidence
b. Process unwilling witnesses
c. Access to scene of incident
d. Expense
e. Vexations
ii. Public interests
a. Court congestion
b. Local juries should decide local disputes
c. Application of local law
iv. §1404: Change of Venue
a. The Language
i. (a) DC may transfer any civil action to any other district or division where it
might have been brought or to any district to which all parties consent
ii. (b) Transferred by consent of parties at discretion of the court from the
division pending to any other district in the same district
iii. (c) DC may order action tried at any place w/in division
b. The Purpose
i. Seeks to codify Gilbert
ii. Applies only were jurisdiction & venue are proper
iii. Difference: Gilbert merely dismisses the case whereas 1404 transfers, saving
time (statute of limitations) & cost
iv. Gilbert still necessary for foreign forum disputes (i.e. Piper)
v. Piper v. Reyno (1981): Scottish citizens killed in plane crash in Scotland w/ plane owned by
Scottish companies & manufactured by PA company sued in CA state court; removed to CA
DC, then transferred to PA DC.
a. 3rd Circuit: No forum non conveniens granted b/c Ps should benefit from U.S. law. If
the forum law is not in their favor in the transferred forum, then no transfer.
i. Not true: U.S. law does not apply even in a U.S. court. Scottish law applies.
b. Protect against statute of limitations through condition of the order for transfer. D
waives statute of limitations to protect P’s right to litigate in the new forum.
c. You don’t get benefit of forum law just because you sue in the forum
vi. §1406: Cure or waiver of defects – applies only when venue is improper
a. DC in which a case laying venue in the wrong division/district shall dismiss it, or
transfer such case to any district/division in which it could have been brought
b. Nothing in this shall impair the jurisdiction of a district court of any matter involving
a party who doesn’t interpose timely & sufficient objection to the venue
B. Forum Selection Clauses & Forum non conveniens
i. Does a forum selection clause in a K require removal of a case to the pre-selected forum?
a. Atlantic Marine v. District Court for Western District of TX (2013): Ps choice of
forum & private interests should not be considered under the forum non conveniens
doctrine when a forum selection clause exists in the parties K
b. Note: when venue is not wrong or improper, motion must be made under §1404
VIII. Conflict of Laws
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A. §1652: State laws as rules of decision: The laws of the several states, except where the Constitution
or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as
rules of decisions in civil actions in the courts of the United States, in cases where they apply
i. Codifies §34 o the Judiciary Act of 1789
a. Laws are statutory and not common law
ii. Vertical Conflict of laws: state claims in fed court
iii. Swift v. Tyson (1842): Pre-existing debt valid consideration of a bill of exchange. Under NY,
not good consideration. Fed law, yes, good consideration.
a. A fed court in diversity is free to apply fed law even if state law is contrary. Common
law decisions are not w/in the meaning of §34, it refers to statutory laws only
b. Reasoning: looking to achieve national uniformity as interstate commerce grows &
develops
i. That doesn’t happen though. Diff standards were applied by diff courts. Even
under Swift, some fed courts still applied local law. Increase confusion
regarding when to implement fed law.
ii. Twin Evils: (1) Forum shopping; (2) Inequitable distribution of the law.
c. Gelpcke (1863): state court invalidates bonds, fed court validates.
i. Encouraged forum shopping to increase the likelihood of recovery. Increased
discrimination against state citizens who cannot utilize the fed courts.
ii. Stark example of the mischief of Swift.
d. Black & White Taxicab (1928): most egregious example of forum shopping.
Reincorporated in TN, brought declaratory judgment in KY fed court after previously
being struck down in KY state court.
i. Holmes dissent: Swift is unconstitutional b/c it permits fed courts to usurp
state jurisdiction – state law disputes should be settled by state law
e. No FRCP prior to 1938 (Rules Enabling Act) so fed courts always had to apply
archaic state procedural rules of the state in which it sits.
i. Odd system: in diversity, fed courts can ignore state substantive law & apply
fed law, but must use state procedural law
B. Erie v. Tompkins (1938): Tompkins walks along a RR track owned by Erie in PA. A projected door
hits him & severs his arm. Under PA law, Tompkins is a trespasser owed no duty. P says apply
Federal General Common Law where P is a “licensee” & ordinary care applies to RR.
i. Both P & D argue the case within the confines of Swift
ii. Ruling: Swift was wrongly decided & is an unconstitutional usurpation of power. A fed court
in diversity cannot ignore a state’s common law
a. Brandeis jumps on constitutional issue that neither party argued
iii. Expected benefits of Swift never materialized, no uniformity
a. §34 unconstitutionally applied, but not unconstitutional itself
b. There is no Fed General Common Law (created by Swift for diversity cases)
c. Swift Shift: FRCP govern procedure, State law governs substantive law
iv. Unanswered Questions by Brandeis:
a. (1) How was the constitution violated?
b. (2) Which state law applies? (Horizontal Conflict) (See Klaxon)
i. Klaxon v. Stentor (1941): Klaxon sells business to Stentor, but later sues for
breach of K b/c Stentor didn’t make “best effort.” NY or DE law?
a. Erie mandates that when determining which law applies in diversity,
fed court must apply the state conflict of law rules of state situated in
i. Erie now applies to Conflict of Law rules
c. (3) How do we determine state law if highest court hasn’t spoken?
i. Guston v. Sun Life Insurance (1946): no authority on issue other than court
decision from a trial court which federal court relied on. People didn’t like
this.
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ii. Commissioner v. Estate of Bosch (1967): in absence of decision from state’s
highest court, fed court acts as highest court not bound by state’s trial court.
They can look at trends in law, neighboring states’ law, etc. (all sources
highest court would use)
d. (4) Which issues does Erie mandate state law applies?
i. No detailed constitutional argument, but several possibilities
a. Art. III, §2: Beyond the scope of what Congress authorized
b. 14th Amendment: equal protection under the law
c. 10th Amendment: Reserved powers to the states
ii. Not all issues: division b/n substantive & procedural
iii. Sibbach v. Wilson (1941): P sued D in IL (accident in IN). D requests
physical exam under Rule 35, IL law doesn’t allow, IN law does allow.
a. Court: federal rules are procedural, so they must apply
b. Revisited in Shady Grove
v. Justice Reed (concurring) mentions Art I, §8 (necessary & proper): no one doubts fed power
over procedure, Erie deals only w/ substantive law
C. Guaranty Trust v. (1945): statute of limitations ran out in NY, but Court of Appeals says it was a
matter of procedure, so NY law doesn’t apply
i. Outcome Determinative Test: If the outcome of a diversity case would be substantially diff
if fed law was used, then court must apply state law
a. Therefore, fed court obligated to use NY statute of limitations
b. Important to ensure the same outcome – Frankfurter:” Diversity provides a different
forum, not a different set of laws.”
c. What about FRCP? York says substantive b/c they determine the outcome
i. Cohen, Woods, Ragan: All cases where Fed Rule ignored in favor of state law
based on York test.
D. Byrd v. Blue Ridge (1958): Byrd sues Blue Ridge for negligence. Under SC law, Byrd is a statutory
employee & can’t sue (Workman’s Comp.); P argues he is an independent contractor. Jury finds for
P, D appeals saying Q shouldn’t go to jury as a matter of SC law.
i. Outcome is not a talisman (there are other considerations)
ii. Balancing Test: three considerations
a. (1) state interest in the issue
b. (2) Federal interest
c. (3) Impact of outcome determinative
i. In Byrd, state interest in a single SC Supreme Court case, federal interest is
the 7th amend. Trial by jury – outcome determinative could go either way.
iii. Better results than York, but a less predictable outcome
E. Hanna v. Plumer (1965): P delivers summons to D by leaving a copy w/ a resident of his home
pursuant to Rule 4(d)(1) [now changed]; MA law says it must be in-hand delivery. DC says it is a
matter of substantive law, so verdict for D; CC affirmed – first time SCOTUS faced w/ a fed rule
conflicting w/ state standard.
i. Hanna Test
a. (1) does a federal rule apply?;
b. (2) is it valid under 28 USC §2072 & the Constitution?
i. §2072: rules of procedure & evidence; power to prescribe (See Shady
Grove)
a. The Supreme Court shall have the power to prescribe general rules of
practice & procedure & rules of evidence for cases in the U.S. district
courts & court of appeals
b. Such rules shall not abridge/modify substantive rights
ii. Constitutional b/c Congress has power to pass rule under Necessary & Proper
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ii. The Hanna Dicta: If the rule doesn’t apply, then no longer in Hanna, back to
Erie/York/Byrd
a. In the absence of a governing federal rule, look to Modified Outcome
Determinative Test (York within aims of Erie) – would applying fed law/failing to
apply state law:
i. (1) Encourage forum shopping
ii. (2) Inequitably administer laws
b. A fed rule is never going to be invalid (Harlan’s concurrence: a test has been set up
that can never lose) – SCOTUS could still invalidate the Rule though
iii. Burlington Northern RR v. Woods (1987): Woods riding motorcycle in Pensacola, crashes,
blames it on poor maintenance of road by RR company
a. Conflict b/n AL statute mandatory (10% increased damages to discourage appeals) &
FRCP 38 discretionary
b. Hanna Test:
i. (1) Rule 38 covers the situation; & (2) Valid b/c its procedural rule
ii. Under §2072 does it alter state substantive right?
a. No. System of rules doesn’t affect litigants’ substantive rights. Federal
rules can affect outcome if only incidentally. Not enough to void the.
c. Touchstones of Constitutional Validity:
i. Test of Reasonableness
a. Reasonably procedural, or arguably procedural?
b. If arguably procedural, still constitutional
ii. Expanded Application of Federal Rules
a. Hanna now applied to fed rules
b. Still no easy answers, analysis leads to further Qs that Court doesn’t
address
F. Specific Application
i. Stewart v. Ricoh (1988): breach of K, Stewart to distribute Ricoh machines; “Ouster Clause”
brings all disputes to Manhattan. Stewart pursues claims in AL. Ricoh moves to transfer
(1404), dismiss (1406); AL doesn’t like ouster clauses, declares AL law governs.
a. Ricoh argues: 1404 controls, venue governed by fed law, trumps state law in this
instance
b. SCOTUS: Hanna Test Analysis –
i. (1) Federal rule cover? No rule, just federal statute
a. Does statute cover? Yes.
ii. Is it valid under Constitution? Statues are not covered under 2072, just rules
c. Hanna now applies to federal statutes
ii. Gasperini v. Center for Humanities (1996): Gasperini lent transparencies to Center for
video project. They were lost. Industry expert says each worth $1,500. Jury multiplies that by
300 = $450K verdict. Center says new trial due to excessive damages under Rule 59.
a. NY Law, CPLR 5501: judgment excessive if deviates materially from reasonably
compensation. Conflict of tests: “deviates materially” (state) v. “shocks the
conscience” (fed)
b. No fed statute/rule, so no Hanna application. Return to basic principles of Conflict of
Laws
c. Two Qs:
i. (1) applicability of NY 5501: would failure to apply encourage Erie “twin
evils”? Yes.
a. Clearly there is an outcome effect, so Erie mandates state law applies.
ii. (2) Can state law apply without offending 7th Amendment?
a. Yes, can coexist!
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iii. Shady Grove v. All-State (2010): class action by SG to recover statutory interest not paid by
AS. DC dismissed b/c NY 901(b) prohibits class action for “penalty,” interest counts as
penalty. CC affirmed, no conflict b/c address diff issues; 901 supersedes Rule 23. SCOTUS –
PLURALITY OPINION.
a. Agrees Rule 23 is in conflict w/ 901, & 23 applies.
b. Hanna Application: (1) R. 23 covers situation; (2) Valid under 2072(b). SG can
bring class action for statutory interest.
c. Scalia: How to determine procedural vs. substantive?
i. Determined by the text of the actual fed rule, not state leg intent. If fed rule is
textually procedural, it applies.
d. Stevens (concurring): Determine validity under 2072(b) by looking at the state law
(i.e. if it is bound up in state substantive right). Scalia says this would make it more
difficulty to provide consistency in application.
iv. Transfer
a. Rule: transferor state law applies when D moves for transfer now also applies
when P moves for transfer (§1404(a) shouldn’t deprive parties of state law
advantages)
b. Ferens v. John Deere (1990): P lost his hand in D machine on his farm in PA. Filed
warranty claim in PA but tort claim in MS b/c MS SoL hadn’t expired. P moved to
consolidate suits for convenience. PA DC refused to honor MS SoL. CC affirmed.
SCOTUS reversed – blatant forum shopping but P always had right to forum shop, so
less controversial
c. In Re Bridgestone/Firestone (2003): class action is not proper unless all litigations
are governed by same legal rules
v. “Reverse Erie” Circumstance
a. What happens when parties sue under fed law in state court?
i. Supremacy clause requires court to apply fed laws & rules
ii. Fed Q is substantive, so reverse presumptions in state court
IX. Pleadings
A. Historical Background
i. Court system derived from Common Law England: (1) Trial by Congregation (jury); (2)
Trial by Ordeal (modern trial process); (3) Trial by Combat (adversarial attorney process)
ii. Common Law goal was to avoid trial, used Pleadings as a “technical mine field” – any
misstep = fatal
a. Claim asserted had to fit w/in 10 forms of action (trespass, ejectment, debt, etc.) &
dismissed if not within the 10 which led to “legal fictions” to make it fit.
b. System of form over substance, procedure > merit
iii. The Field Code (mid-1800s)
a. Limited # of pleadings: Complaint, Answer, Reply
b. Abolished common law cause of action – plead facts, not claim
c. Problem: had to plead facts, not conclusions. Not easy to delineate, but necessary
under the Code. Therefore, judges frequently resorted back to Common Law for
authority.
iv. Federal Rules of Civil Procedure (1938)
a. Limited pleadings (Rule 7); abolish legal distinction b/n law & equity to create civil
law
b. Philosophically diff from Field Code/Common Law
i. Meritorious litigants should have day in court, not meant to avoid trial (Rule
1)
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ii. Merges Law & equity (Rule 2)
c. Success of FRCP: (1) meritorious litigant goal; (2) state as many claims as needed in
one paper; (3) hypo/alt remedies (all claims heard); (4) no distinction b/n facts,
evidence, conclusions (stated in general terms) – notice is now key to pleading
d. Rule 8(a): state claim of relief (not cause of action), note source of SMJ, note relief
sought
i. Exception: Rule 9(b) must plead w/ more specificity for claims of fraud or
mistake
e. Demurrer (old term): Rule 12(b)(6) provides motion to dismiss on grounds of a
“failure to state a claim upon which relief can be granted.”
f. FRCP used new language as to not taint new rules w/ common law standards/rules
B. Rule 11: Policing the Integrity of Pleadings
i. Certifying under 11(b): (1) no strategic purpose; (2) claim supported by law or good faith
argument to change law; (3) evidentiary support for contentions – objective standard
a. Presenting info to best of your knowledge after an “inquiry reasonable under the
circumstances”
ii. Problems w/ original rule 11: sanctions were mandatory (type & amount were discretionary)
a. Pro: punish violators to change behavior; Con: creates ill-will, poisons litigation
b. Purpose of sanctions is deterrence but remedies for D soon became emphasis
c. Could be imposed on attorney or client or both
d. “Rule 11 Letters” became a method of intimidation & result in a breakdown of
collegiality
iii. 1993 Amendments:
a. (1) sanctions no longer mandatory, discretionary
b. (2) 21-Day period: party given chance to withdraw before sanction filing
c. (3) 11(c): made clear the goal was to deter, not compensate – fine paid to court
d. (4) Motions free-standing: can’t tack sanctions on to summ. judg/motion to dismiss
e. (5) who can be sanctioned? Law firm ordinarily responsible; Lay person responsible
for factual problems only
iv. Walker v. Norwest Corp (1997): suit was filed under diversity jurisdiction, but complaint
admitted there was not complete diversity.
a. DC did not abuse discretion in awarding monetary sanctions b/c abuse of discretion
requires a court’s ruling be based on an erroneous view of the law
v. Chambers v. NASCO (1991): P was going to sell his local TV station to D but backed out &
started bogging them down in a frivolous lawsuit when they sued for specific performance
a. DC acted w/in its discretion in assessing as a sanction for Chambers’ bad faith
conduct the entire amount of NASCO’s attorney’s fees
C. Other Sanctions
i. 28 USC §1927: Only for attorneys, through vexatious conduct
a. Given for constantly seeking delays, forcing other side to waste $
b. Big diff w/ R11: (1) requires proof of subjective intent (bad faith), not objective
(R11); (2) only good for attorneys; (3) no 21-day grace period
c. Zuk v. Eastern PA Psychiatric Institute (1996): copyright infringement claim; trial
court did not err in imposing sanctions on lawyer b/c he did not make an adequate
inquire into facts & laws before filing (e.g. filed after statute of limitations) but trial
court did err in the severity of their penalty.
i. When determining types & amounts of sanctions, court is encouraged to
consider: (1) mitigating factors, (2) whether the attorney has history of this
behavior, (3) D’s need for frivolousness, & (4) willfulness of the violation.
ii. Decided under Rule 11 b/c no bad faith
ii. Inherent Court Powers: some subjective intent needed, vexatious behavior before the court;
common law version of §1927
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iii. Proceeding pro se: standards are same under R11, but sanctions are typically less harsh
D. The Complaint
i. Stromillo v. Merrill Lynch (1937): Lynch has fiduciary responsibility to invest money in
interest of client, but also making commission. “Churning” stocks refers to transaction solely
for commission.
a. D: motion for definite statement [9(b), 9(g), 12(e)]: so vague they can’t be responded
to
b. D attempting to force S to spend money, give up; “Housekeeping” motions are
vexatious, just call the other side & ask for more definitive statement
ii. Pleading Standards:
a. Rule 9(b): case involving any type of fraud, need to plead with specificity b/c fraud is
a serious allegation; make sure its substantive before proceeding
E. Motions to Dismiss the Complaint
i. Neitzke v. Williams (1989): Rule 12(b)(6) authorizes a court to dismiss on the basis of a
dispositive issue of law. This Rule does not allow dismissals based on a judge’s disbelief of a
complaint’s factual allegations
a. Rule streamlines litigation by dispensing of needless discovery & factfinding
ii. Swierkiewicz (2002): whether specificity in pleadings is needed in Civil Rights case. P
(Hungarian) demoted & pushed out from his job by French nationals.
a. Complaint should not be dismissed unless it is clear that no relief could be granted
under any set of facts that could be provide consistent with the allegations
i. There is no particularized pleading requirement outside 9(b) & Courts can’t
make up their own
iii. Conley v. Gibson (1957): FR adopted simplified pleading system; only need to provide: (1)
notice; (2) grounds for claim generally.
a. Rule 8(a) Standard under Conley: unless beyond a doubt P can prove no set of facts
(difficult standard to fail), Courts should not dismiss claims
iv. Bell Atlantic v. Twombly (2007): Phone service dominated by AT&T, bought by Bell in
1980s. 7 regional Bell operating companies created for local phone service; become 4 “local
monopolies” (ILECs); CLEC – any competitor companies
a. 1996 Telecoms Act: Congress makes local phone service competitive; accept
competition w/in regions & provide technologies to compete. ILECs don’t cooperate
w/ leg requirements
b. Twombly charges conspiracy: (1) 4 ILECs agreed collectively to not cooperate; (2)
also agreed not to compete against each other
i. No facts for basis of agreement; D moves to dismiss under 12(b)(6)
ii. P asserts under 8(a)(2), complaint only needs to give notice, not facts to prove
case
c. SCOTUS: Governing standard under Conley is incomplete – never intended “no
facts” language to mean no facts were needed at all (reasons FRCP drafters avoided
“notice” term)
i. Must show a plausible claim: “3 Bears Approach”
a. More than possible, but not necessarily probable, just plausible
b. Necessity of pleading facts, not conclusions
d. Rule: Must plead enough facts for reasonable expectation that additional facts
through discovery may prove illegality
i. Avoid “False Positions”: letting groundless claims get into the system & drive
up expenses via long discoveries
ii. Heightened pleading standard to filter out baseless or questionable antitrust
cases
e. TWO-PRONG TEST:
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i. Complaint is not just a recital of elements of a cause of action supported only
by conclusory statements
ii. Do facts contained support a plausible claim for relief
v. Erickson v. Pardus (2007): prisoner given treatment for Hep C, accuse P of missing syringe,
taken out of program, going to die. D says in wake of Twombly, pleadings require P to show
a connect b/n injury suffered & D’s actions.
a. Traditional leeway given to pro se litigants; Twombly doesn’t have particularized
pleading requirement
vi. Ashcroft v. Iqbal (2011): Iqbal in country illegally, suspect post-9/11; claimed inhumane
conditions once incarcerated, violating 1st/5th Amends. D moves to dismiss on Twombly
grounds.
a. Rule: Twombly pleading standard no longer limited to antitrust. Reiterating &
reasserting Twombly in a new, broader context; applies to all cases now.
b. How much must be pleaded?
i. “Context Specific Test”: how much must be pleaded depends case-by-case
(heightened for antitrust, lowered for constitutional claims)
ii. All factual allegations considered true but must give rise to Plausible Claim
F. Responsive Pleadings
i. Answers:
a. Admit: settles the issue
b. Deny: if not denied, presumed admitted (Rule 8(d))
i. Sinclair v. Howell (1955): Sinclair did not address issue of worker’s comp in
their answer so, in effect, they admitted that Howell was just subject to
worker’s comp
c. Admit in part/deny in part: make it clear, otherwise admitted
ii. Denial
a. Need to provide basis for denial
i. Personal knowledge
ii. Information or belief
iii. Deny knowledge or information
a. David v. Crompton (1973): where a defendant avers that it is w/out
sufficient knowledge & info to admit or deny Ps allegations, & D is
actually in possession of such info, it may not amend its pleadings.
Thereafter, Ps allegations will be deemed admitted
b. Deal with specific allegations from complaint in the answer
i. “Negative Pregnant”: improper denial
c. Can you respond with a general denial to entire claim? No – Rule 11. There are
factual elements to complaints that would be frivolous to deny.
i. Alt for corp. client: start with “denies each & every allegation of wrong
doing”
iii. Rule 12(b): How to present defenses
a. Allows (7) certain defenses by motion rather than answer
i. Motions bring issue to head to save costs w/out discovery
b. Failure to raise defenses in “first instance” waives except for SMJ or 12(b)(6)
c. Naghiu v. Inter-Continental (1996): D’s 12(b)(6) motion granted b/c P was not a real
party in interest for the purposes of property in which he has no legal interest
iv. Affirmative Defenses: bringing up new information, putting everyone on notice. Illustrative
list, but not complete 8(c)
a. Harris v. Dept. of Veterans Affairs (1997): b/c VA did not raise the defense of
untimeliness in a responsive pleading (as required by Rule 8(c)) & did not apply to
DC for leave to amend under Rule 15(a), Court should not have considered defense
of untimeliness
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v. Counterclaims: Rule 13
a. D brings claim against P. Like a complaint but must be designated as claim for relief.
P must answer counterclaim, Affirmative Defenses are not responded to, assumed to
be denied
b. Counterclaim can be a tactical device to change the posture of the suit
c. Compulsory Counterclaims: closely related subject matter or same transaction as P’s
claims
i. Must be asserted or lost, permissive can be saved
ii. Whether a new claim can be heard, which could have been a counterclaim in a
previous suit, depends on if the F1 Court recognized compulsory
counterclaims
iii. When compulsory, no need to assert SMJ. Permissive: must assert SMJ.
a. Iglesias v. Mutual Life Insurance (1998): b/c D’s counterclaim is
permissive rather than compulsory, it must be supported by an
independent jurisdictional basis & it does not
d. Fuentes v. Tucker (1947): wrongful death action. D filed amended answer before
trial, admitting negligence; doesn’t want intoxication to be revealed. Should jury still
be able to hear evidence when liability has been admitted?
i. No. Don’t want an emotionally charged jury. In this case though, there was no
miscarriage of justice b/c of the error b/c intoxication had no bearing on
damages
G. Amendments of Pleadings
i. Alter the case so the Court may try the actual claims of the present
ii. Rule 15: Amendment Process
a. Within 21 days; motion granted as a matter of course
b. “Freely granted,” but not unlimited (typically disallowed if causes undue delay or
expense)
i. Friedman v. Transamerica (1946): Ps request to amend complaint for a 4th
time in 16 months b/c of a failure to state their cause of action falls outside
limits of 15(b)(1)
c. Does amendment relate back to initial filing? Considerations:
i. Would it unfairly prejudice D?
ii. Would it result in a significant delay?
iii. Schiavone v. Fortune (1986): Fortune published article alleging link b/n Schiavone &
organized crime. Sues for defamation but names wrong party. Amended to “Time, Inc.” after
SoL runs.
a. Timely notice matters, b/c party received notice after SoL the amendment is invalid
b. Outrage over decision, so 15(c) amended as a result
i. Amendments relate back if:
a. State law mandates it
b. Same transaction
c. If misnamed, same transaction, (a) within 120 days, (b) D knows or
should have reason to know they would have been named but for the
mistake
c. OVERRULED BY AMENDMENT OF 15(C)
iv. Krupski v. Costa Cruise (2010): action for negligence, K names Costa Cruise, not Costa
Crociere
a. Focus of 15(c) is not what P knew or should have known, but what D knew or should
have known.
b. D knew all along, so notice was there. Focus on D knowledge.
X. Joinder
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A. Joinder of Claims & Parties
i. P can bring as many claims as P has
ii. D can join claims: (1) Counterclaims; (2) Cross-claim
iii. Joinder of Parties:
a. Rule 20: Certain parties can be brought by P permissively (not required).
i. Qs of law/fact common to all parties; & claims arise out of the same
transaction
b. Rule 19: when you have to join parties? Parties needed for adjudication.
i. “Necessary party” if:
a. In absence, complete relief not accorded
b. Has interest which would be endangered if not joined
c. Absence exposes others to multiple liability
ii. The part who has to be joined can be, only if:
a. Joinder doesn’t destroy complete diversity; and
b. The party is subject to court’s jurisdiction
iii. 19(b): If party is necessary but doesn’t satisfy (a) or (b) directly above, the
Court has discretion on whether or not to proceed. Court should consider:
a. Equity & good conscience
b. Unfairly prejudice absent party
c. Can court craft protective promises?
d. Adequate in absence
e. P has satisfactory remedy if dismissed for nonjoinder
iv. Puricelli v. CNA (1999): Ps can join their claims for age discrimination based on slightly diff
facts b/c claims are logically related & have Q of fact or law in common
v. Allstate v. Hugh Cole (1999): b/c 3rd party P does not assert derivative liability on the part of
the 3rd Party Ds, they can’t bring their claims in present action under Rule 14(a) (Impleader).
For impleader to be available, 3rd party must be liable secondarily to original D in event the
latter is held liable to P.
vi. Temple v. Synthes (1990): joint tortfeasors are not indispensable parties under Rule 19 &
therefore failure to join them is not grounds for dismissal
vii. Helzberg v. Valley West (1977): a party is not indispensable to an action to determine rights
under a K simply b/c that party’s rights or obligations under an entirely separate K will be
affected by the result (e.g. shopping center promising Helzberg they would limit other
diamond stores & didn’t)
XI. Class Actions – Rule 23
A.
B.
C.
D.
A form of joinder, but instead of P joining all Ds in one lawsuit, permits D to sue on behalf of all Ps
Rooted in equity; provides justice efficiently to avoid endless litigation & assure consistency
23(b): amended in ‘66 to include cases w/ common Qs of law or facts & manageable as class actions
Unlike an ordinary lawsuit, in a class action, lawyer seeks the P
i. Private citizens have federal right to assert, making this diff from “ambulance chasing”
ii. Once the class has been found & determined, lawsuit is financed by lawyer advancing funds,
then taking a cut of the large winnings
E. Benefits:
i. Information functions; clients may not know they have a claim
ii. Efficient; no multiple lawsuits, freer dockets, reduce costs, only worthwhile suit b/c of size
iii. Ds can “buy peace” in a consolidated final resolution
iv. Consistency of results
v. Assures compensation to victims & deters wrongdoing
F. Downsides:
23
G.
H.
I.
J.
K.
i. Ethical concerns
ii. Extortion concerns: settle for reasons other than merits
iii. Possibility of baseless claims
Certification: not a class action until it is certified; must be timed correctly. If too soon, necessary
facts may not yet be established.
i. “At any early practical time” (Rule 23(c)(1)(A)): do not rush in certification b/c it might
unfairly prejudice Ds
ii. Requirements for Certification of a Class Action
a. Numerosity: impractical to proceed by joinder or jurisdiction not est. by joinder;
geographic diversity concern; absolute number less important
b. Commonality: commonality is real, not just common Q of law/fact. Must be a
“common contention” capable of “class wide resolution.” Meaning for resolution of
claims in “one stroke.”
c. Typicality: Claims of class reps are typical of everyone else’s claims w/in class
d. Adequacy of Representation: class reps not acting contrary to class interests
iii. Next, must satisfy 23(b)(1), (2), or (3)
a. 23(b)(1): prosecuting separate actions creates risk of:
i. Inconsistent judgments;
ii. Members of other parties’ interests would be impaired; fairness to P (this is Ps
only opportunity to recover), instead of “race to the courthouse”
b. 23(b)(2): specifically, injunctive/declaratory relief; aimed at institution (schools,
prison, etc.); equitable relief over monetary damages
c. 23(b)(3): common Q predominates over individual Qs; A class action is superior
method to manage. Most Common that we see today
23(f): Appeal the denial of certification
i. Exception to interlocutory appeal
ii. Appellate review of cert decisions; class action decision as consequences, so should be
reviewed sooner rather than later. 23(f) appeals rarely granted
If certified, next step is to Notify the Class Members
i. Required for 23(b)(3) b/c then members can opt out; basis for (b)(3) is efficiency, not
common right. Therefore, member should be able to sue indiv. instead of w/ class
ii. Notice must come from court, describe the action fairly, explain how to opt out if wanted, &
advise parties that all members are bound by court’s decision
23(e): Class Action Settlement
i. Court has to approve the settlement; not a contractual agreement like typical settlements
ii. Court will focus on:
a. Reasonable settlement related to claims for relief & size of class
b. “Point in Time”; before discovery would be suspicious
iii. Settlement has to be approved, so class members can be notified & object if they want:
a. “Second Opt Out” may be granted at court’s discretion
Hansberry v. Lee (1940): racially restrictive covenant on a property; seller (who was selling to
Hansberry, a black man) was not part of the class, so he could not be held by the judgment
XII. Summary Judgment
A. Disposition without trial
i. Complaint alone is not enough to get to trial
ii. Default: P does not show up
iii. Settlement: can occur at any point b/n parties
iv. Voluntary dismissal: P decides not to move forward w/ case
v. Motion to dismiss: fairly early, challenge sufficiency of P’s claims
a. Very typical in cases; if denied, move to discovery
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B. Summary Judgment – Rule 56
i. End of discovery, like motion to dismiss
a. But motion to dismiss addresses only face of complaint, For SJ, all material
developed in discovery is before the Court
b. “Put up or shut up” for P
ii. Whether, as a matter of law, there is a genuine issue of material fact
iii. Rule 56 is party neutral, but quintessentially a tool of D
a. Where a party can show no issue of material fact, as a matter of law, SJ must be
granted.
b. SJ is typical in litigation, but is not a “risk free” operation
i. Once motion is made, Court can grant SJ for either party, even if nonmovant
ii. Rulings on Qs of law become law of case, making it harder to recovery
potentially
iii. Key: is there a genuine issue of material fact for a jury to decide
iv. Partial Summary Judgment
a. W/ respect to some, but not all claims, P/D entitled to SJ
b. Court payoff is avoiding a lengthy trial; cut case down to size, move toward
settlement
i. However, incentives to parties not the same as SJ b/c claims will still exist,
just less
v. Timing
a. Rule 56 doesn’t say when to make a motion for SJ; can be at any time
b. But, before discovery is premature; be patient with SJ. Discovery develops facts
making it easier to distinguish if there is a genuine issue of material fact.
vi. Rule 56: written in broad terms; “no genuine issue of material fact.”
a. Material fact = outcome effective
b. Genuine = could reasonable people disagree on the fact?
c. No clear rule to distinguish what is a “fact”
C. History of Summary Judgment
i. In wake of FRCP, reluctance by Courts to grant SJ
a. Should not put hurdles in path of meritorious litigants
b. Idea of SJ is not avoiding trial, but to assess whether issues of fact exist based on
complete pre-trial record
c. SJ is simply a way to assure just & speedy resolution, it is not a shortcut
ii. As time passed, litigation became more complicated & SJ became more attractive to parties.
Increased efforts to make SJ more attractive to Courts lead FRCP to re-draft
D. Development of Summary Judgement
i. Arnstein v. Porter (1946): Cole Porter, most famous pop musician of 20th century, sued by
Arnstein, a serial P, for copyright infringement of songs.
a. No real evidence to show Porter had access to P’s music, so how does P avoid SJ?
b. P says D is lying; credibility an issue, therefore, a Q for jury is created
c. Clark (dissent): principal drafter of FRCP, says this is not purpose of SJ; SJ is proper
here
d. Case typifies early hesitance to utilize SJ; “Judicial hostility”
ii. Matsushita v. Zenith (1986): part of 3 cases in 1986 session that redefined SJ’s purpose &
use
a. M sued by Z for violation of anti-trust & international trade laws; Z alleges
conspiracy by M to drive Z out of business by selling products in U.S. market at a
loss; not a logical theory b/c 20+ years & no results
b. Absence of plausible motive; it’s incumbent on P to defect SJ by showing evidence to
support its claim
c. Rules:
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i. Range of inferences drawn from ambiguous evidence on SJ motion is
limited
ii. Conduct as consistent w/ competition as it is w/ illegality, not sufficient to
avoid SJ
iii. P: evidence tends to exclude the possibility of independent action
a. SJ applies to all cases regardless of substance
iii. Celotex v. Catrett (1986): D moves for SJ b/c P’s proof is deficient. P claims D needs to
prove deficient in order for SJ to be granted. P’s theory is rejected.
a. D must show only that opposing party lacks evidence to support its case
iv. Anderson v. Liberty Lobby (1986): Public figure defamation claim, must show “actual
malice”
a. Does standard for SJ mirror standard that would be applied at trial? (e.g. clear &
convincing vs. preponderance for defamation) – yes, same standard applies.
v. Di Sabato v. Soffes (1959): counter girls injured when car crashed through store window. Ds
(car owners) did not submit a single affidavit by anyone having knowledge. P’s motion SJ
granted b/c court finds no question of fact based on physical facts of accident submitted by
Ps.
E. In Conclusion: Summary Judgment
i. Lots of work up front for a judge
ii. Payoff: either no trial or judge getting to know case better before trial
iii. Court can grant SJ against party who made the motion or just partial SJ
XIII. Discovery
A. Discovery Under the Federal Rules
i. The “Cinderella of changes” under FRCP
a. Common law promoted “trial by ambush,” now focus on actual merits of claims
b. Rooted in equity, which permitted information gathering from the other side
c. Benefits:
i. Prevention of unfair surprise
ii. Gain admissions to understand strengths of your case, streamline trial process,
& facilitate settlement
iii. Further FRCP goals of trial on merits
ii. What can be discovered?
a. Scope originally broad
b. Rule 26(b)(1): any matter not privileged “relevant to the subject matter”
i. Not a fishing expedition; looking for identity of witnesses, location of
evidence, actual docs, position of other parties, & other basic info
ii. Rule 16 – device to manage pre-trial phrase, empowers Court to dismiss
claims on its own motion (encouraged managerial judges)
c. Rule 26 (1983): “no stone unturned approach” tackling “scorched earth” policy
i. While discovery is broad, it must also be proportional to the needs of the case
ii. Discovery sanctions were also mandatory now
d. 1993: Discovery revisited; “Mandatory Automatic Disclosure” (MAD) promoted, but
permit local DCs to opt out, creating confusion
i. Presumptive Limits on Discovery: interrogatories (25); depositions (10)
iii. Rule 26(b)(1): Amended to provide “parties entitled to information related to
claims/defenses” (eliminates relation to subject matter)
a. New Process: (1) start with MAD; (2) attorney-initiated disc.; (3) court-initiated disc.
iv. Electronically Stored Info (ESI)
a. Long histories can be bothersome & now info lasts forever, backed-up, stored
digitally
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b. Most are accessible, some are difficult to retrieve though, leading to higher cost of
disc.
c. “Document” defined to include electronic docs
B. Tools of Discovery
i. Depositions (Rules 27-32)
a. Sworn statement, subject to cross-examination, taken prior to trial
b. Objections can’t preclude witness answering Qs, noted for trial (unless privileged
info)
c. Best form of discovery: opportunity to ask, cross-examine, pin witness, evaluate
d. Benefits:
i. Get info
ii. Can substitute trial testimony (absent witness at trial)
iii. Locks witness into story, otherwise undermines credibility
e. How is it used?
i. Clarify any mistakes in transcript (witness has opportunity to read & amend)
ii. Can be taken of parties & non-parties
iii. Must be recorded (transcribed, audio, video) – video most effective for juries
ii. Interrogatories (Rule 33)
a. Written questions served only on parties & answered under oath w/in 30 days (no real
time, attorney can answer & client can sign)
b. Very inexpensive to generate, but only valuable if used correctly as basic info
gathering
iii. Document Demands (Rule 34)
a. Entitled to copies of documents, but only from parties
b. Not witness statements, 30 days to respond
iv. Mental/Physical Exams (Rule 35)
a. D’s doctor can examine P, subject to Court approval
v. Request for Admissions (Rule 36)
a. Permit sides to ask other to admit specific fact (trial prep device)
b. Uncontested facts used to create a record
c. Force parties to admit authenticity of evidence/documents
vi. Sanctions (Rule 37)
a. For not complying w/ discovery procedure
b. 2 Step Process
i. 37(a): compel compliance by getting Court engaged/behind you
ii. 37(b): Court empowered to impose any sanction
c. NHL v. Metro Hockey Club (1976): Q over whether DC abused its discretion in
dismissing a complaint for a party’s failure to respond to written interrogatories per a
court order
i. Rule 37 shouldn’t be construed to authorize dismissal of a complaint b/c of
petitioner’s noncompliance w/ a pretrial production order when it has est. that
failure to comply is due to inability, & not to willfulness, bad faith, or P fault
ii. However, DC did not abuse discretion here b/c finding of flagrant bad faith &
counsel’s callous disregard of their responsibilities
C. Limitations of Discovery
i. Privileged material is outside scope of discovery
a. Attorney-Client Privilege: promotes honest & candor via confidentiality
b. Also: self-incrimination, spousal, clergy, work product
ii. Irrelevant material
D. Work Product (Rule 26)
i. Upjohn v. U.S. (1981): company lawyers sent questionnaires to their foreign managers while
internally investigating questionable payments. IRS began officially investigating & issued
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summons for the questionnaires. Upjohn refused, claiming it was work-product subject to
attorney-client priv.
a. Communications b/n corporate employees & corporate lawyer are protected by
privilege
b. Work-product doc. protects any work that reveals an attorney’s mental processes
from disc.
ii. Hickman v. Taylor (1947): tug boat sank killing 5 of 9 crew members. Surviving 4 testified
in admin hearing & were recorded. Lawyer for boat company privately interviewed survivors
w/ eye toward litigation & wrote memos about what they told him. Upon interrogatory
request for statements of any crew members, Taylor refused to hand them claiming privilege
b/c obtained in prep for litigation
a. Work Product Doctrine: protects info/docs/work created in contemplation of
litigation to promote adversary system (because in order to be an effective advocate
for your client, you need a zone of privacy) & encourage keeping written records.
b. Work product doctrine is not absolute, two types:
i. “Ordinary” WP: qualified immunity, requesting party must show hardship in
obtaining info otherwise
ii. “Opinion” WP: thoughts, mental impressions – no showing of hardship could
make this discoverable, except:
a. WP “at issue” in case
b. WP created as part of criminal/fraudulent enterprise (ex: Michael
Cohen)
iii. Waivable by performance; answering the request
XIV. Juries
A. Seventh Amendment Right to Jury Trial
i. “Shall be preserved”
ii. “Preserving” as it existed in 1791? Does not confer a right, but preserves the right at
Common Law
iii. Rule 38: preserves the right preserved by the 7th Amendment
iv. Fed Statutes designate a right to jury trial
v. If you want a jury trial, it must be demanded, then the right applied can be determined. But if
not w/in a statute, then it falls through the cracks.
a. Determined if it applies by remedy sought & analogy to Common Law cases
b. Works well when the matter is either equitable or legal, but what if it has elements of
both?
B. Beacon Theatres v. Westover (1959): Fox (movie theatre w/ “first run” K) sues Beacon (drive-in
theatre) for threats to sue, requests declaratory judgment that K is not illegal & injunctive relief.
Beacon counterclaim w/ antitrust suit. Beacon demands jury trial.
i. DC should try the legal claim first, before jury, while judge tries the equitable claim
simultaneously
ii. Exercise discretion in favor of preserving the right; preference for jury trials
iii. The fact that there’s an equitable claim in the same suit doesn’t preclude right to jury on a
legal claim. Strong statement against eliminating jury trial.
C. Dairy Queen v. Wood (1962): DQ sued franchisee for breach of K & trademark infringement b/c of
failure to pay $150K. DQ asks for injunctive relief & accounting (really money damages). Legal
action crafted as equitable b/c DQ doesn’t want to go to jury trial.
i. Essence of claim is money damages so jury trial. Legal issues must be tried even if equitable
issues are in a claim
ii. No historic basis cited (like in Beacon), simply declared jury trials as best option
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D. Ross v. Bernhard (1970) Footnote: As our cases indicate, legal issues determined by: (1) historical
inquiry; (2) remedy sought; (3) practical limitations to juries
i. What does (3) mean? Cases that are too complicated for juries?
a. The problem is the cases may be too complicated for judges too
b. “Pandora’s Box” opens if cases too complicated for jury to hear are kept away from
them
ii. Alternatives to Eliminating Juries
a. Keep jury involved by allowing them to ask Qs
b. Provide jury w/ glossary of terms/exhibit books
c. Allow juries to take notes
d. Make evidentiary rulings in advance to avoid distracting jury (In Limine Motions)
e. Lawyers should announce why they call a particular witness to focus jury & provide
context
f. Allow for periodic summations
g. Appropriate use of expert witnesses
E. Why exercise right to jury trial? Considerations:
i. How the assigned judge may feel about your case (know alternative)
ii. Relationship b/n parties (identify parties, prejudices)
iii. Nature of the claim (how egregious is the conduct)
iv. Potential cost considerations (minimal)
v. Jurisdiction, potential prejudices [of juror pool], venue
vi. Complexity: may take a long time to try, which may lead to jury antipathy
F. Jury Selection
i. Custom of jury duty; courts assemble potential jurors, then 6 selected
a. Not selecting jurors; eliminating potential jurors based on unfair prejudice (potential
connection to case/parties; types of jobs where they can’t be away long)
ii. Who conducts voir dire?
a. State Courts: lawyers; fed court: judges
b. Looking for a biased jury in your favor, but will settle for impartial jury
iii. Jury consultants
a. Demographic research on community; types of people expected
b. Helps create an ideal pool for attorneys to prepare
c. Expensive, but effective
iv. Jury instructions
a. Judges ask lawyers for proposed instructions; opportunity for input; minimizes
mistakes
b. Can’t appeal findings of jury; appeal errors of law (i.e. instructions to jury, decisions
on evidence, etc.)
v. Jury decisions
a. Only find out decisions, not reasoning (protect deliberation of jury)
b. Embrace finality; do not want process constantly reexamined
c. Still, lawyers can talk to jurors after the verdict
d. Judges issue judgments, juries give verdicts
vi. Controls on jury process
a. Rule 11 sanctions
b. Twombly rule
c. Motions to dismiss; SJ (no issue of material fact)
d. Evidentiary rules: keep info away from jury
e. Jury instructions: Court tells jury what the law is; given guidelines
i. Usually the lawyers form the instructions at onset of case
f. Rule 49: provides court power to submit interrogatories to jury; special Qs to guide
deliberation (focuses jury, keeps jury honest)
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G. Challenges – both motions can be made simultaneously
i. Rule 50: Motion for Judgment as a Matter of Law
a. P must make out prima facie case showing all elements, if not D can invoke Rule 50
b. Court usually will not grant, let jury decide
c. If denied, movant can still move for JNOV – tests legality of jury verdict
d. Rule 50(a) & 50(b) are further control
ii. Rule 59: Motion for a New Trial
a. 59(a)(1)(A): entitled to a new trial if…
i. Error of Law: gives judge opportunity to correct his own mistake, reconsider,
before appeal; saves time & money
ii. Juror misconduct: counsel talking to jurors, violating “blackout” rule, jurors
going beyond their role (independent research), issues of intimidation
iii. Verdict against weight of the evidence
a. Latino v. Kaizer (1995): judge found a police officer’s testimony was
objectively & inherently improbably & therefore perjury, so he
vacated jury verdict b/c w/out that testimony, verdict was against the
weight of the evidence – circuit court reversed vacation of jury verdict
i. While judge can take away testimony from jury that reasonable
persons could not believe, this is a narrow exception that can
only be invoked where testimony contradicts indisputable facts
or laws
iv. New Evidence: must show that the evidence is likely to change the result &
that it was looked for before but didn’t exist at the time
b. A jury must not impeach its own verdict
c. Compromise Verdict: juries cannot find a median b/n what P wants & what D offers
d. Jury Nullification: Can a jury ignore law b/c of morality? Up in the air.
XV. Claim Preclusion (One Bite)
A. Goals of preclusion: peace, consistency, efficiency
i. Restatement 2nd Judgment: §§13-33: regularly seen by Court as authoritative
B. Requirements of Claim Preclusion
i. (1) Identical Parties (in same position)
ii. (2) Identical Cause of Action
iii. (3) F1 judgment was on the merits
a. “on the merits” caused serious problems for the courts
b. Without prejudice = on the merits
c. What if D moves to dismiss under 12(b)(6) “failure to state a claim”? Judgment on
merits?
i. If you don’t say anything after ruling, then presumption is that it was on the
merits
ii. Party must speak, otherwise presumed “on the merits”
C. Identical Parties
i. Nevada v. United States (1983): Case regarding water rights in the West. Gov’t trying to
ensure access to water; commenced litigation for benefit of tribe for equitable distribution.
a. F1: 1913 – U.S. sued, tribe allocated certain amount of water, Settled in 1944 (Orr
Ditch)
b. F2: 1973: U.S. seeks addt’l access to water for maintenance/preservation. Names all
Ds from Orr Ditch & addt’l Ds as well
c. What Ds are the same?
i. Ds from F1 clearly bound by claim preclusion
ii. “Successors at interest”: Yes, b/c they share same interests
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iii. “Subsequent users of water”: yes, b/c they relied on prior decree
d. There is Claim Preclusion even though the parties are different
i. The legal interests are the same; does not necessarily have to be the same
person
ii. Martin v. Wilks (1989): Title VII of the 1964 Civil Rights Act at issue
a. F1: NAACP files suit against Birmingham; consent decree to hire more black
firefighters
i. During public comment period, white firefighters file objection to bar
enforcement; Denied by DC, 11th CC affirmed
b. F2: New group of white firefighters, not parties to previous action, attempt to bar
enforcement alleging discrimination
i. DC dismisses complaint; 11th CC reversed b/c they weren’t parties to F1 so
not bound by F1
c. Are the Parties Identical?
i. Had the opportunity to intervene in F1, but refused
ii. However, knowledge of case doesn’t bind. If Ds wanted them to be bound,
they have the burden to join them
iii. Concern over “virtual representation” -- would permit “common law class
action”: a class action w/out the protections of judicial determination to certify
iii. Six Areas to Establish Identical Parties:
a. Party agrees to be bound by F1 judgment
b. Pre-existing substantive relation (legal successor)
c. Class actions
d. If P2 in F2 controlled the litigation of P1 in F1
e. If P1 was a proxy for P2 (Cromwell)
f. Statutory preclusion (probate, bankruptcy)
D. Identical Cause of Action
i. Negotiable instruments (i.e. stocks, bonds, coupons) each give a separate cause of action
ii. Each tax year is also a separate cause of action
iii. Keidatz v. Albany (1952): Keidatz is buyer of home from Albany, seller. House was on
sinking land.
a. F1: K claims fraudulent inducement, seeks rescission of K (equitable relief). A
invokes SoL.
i. DC agrees but tells K to amend for fraud damages. Instead, K brings new
action.
b. F2: Fraud action by A vs. K. Same parties, different cause of action. F1 was “on the
merits”; no identical cause of action b/c F1 was equitable & F2 is legal.
iv. Modern Approach: Transactional Approach
a. Focus on factual proof, not recovery (only for preclusion purposes)
b. If the proof is the same, there is identical cause of action
i. Even if theory of recovery is completely diff, cause of action may be identical
c. See O’brien v. City of Syracuse
v. Clancey v. McBride (1929): car accident b/n Clancey & McBride
a. F1: C sues M for property damage before justice of the peace; C awarded $275, M
pays.
b. F2: C sues M, again, for personal injuries in Superior Court (general jurisdiction)
i. M: Claim preclusion defense, cause of action identical
ii. Trial court denies b/c diff rights are infringed
iii. So what? Distinctions are w/out meaning.
c. “Claim Splitting” is disfavored; same facts is a hard rule
i. Modern Rule: did claim rise out of same transaction? If so, for preclusion
purposes it will be deemed identical (restatement §24)
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d. Exceptions to allow “Claim Splitting”( §26) :
i. If parties agree to split claims to simplify the case
ii. Court orders the split if one issue may resolve all issues
a. Frequent when claims might be confusing to jury if tried together
iii. Jurisdiction barriers to presentation in F1
iv. Statutory scheme permits (landlord/tenant law)
v. Recurring wrongs (on-going trespass)
vi. Special circumstances (divorce/child custody)
XVI. Issue Preclusion
A. Goals of preclusion: peace, consistency, efficiency
i. Restatement 2nd Judgment: §§13-33: regularly seen by Court as authoritative
B. Requirements of Issue Preclusion
i. (1) raised; (2) litigated; (3) adjudicated
a. Issues are much narrower, more important than Claim Preclusion
ii. Key distinction w/ Claim Preclusion: issue = issues actually raised; Claim = all claims, even
those never raised, but should have been raised
iii. Cromwell v. County of Sac (1876): In 1860, Sac County issued bonds (loans, debt) to pay
for new courthouse, but it was never built, & the money was stolen
a. F1: Smith sued to recover on 25 coupons (interest of bonds) given to him by
Cromwell. Denied recovery b/c bonds were fraudulently issued & he couldn’t prove
he paid for them.
b. F2: Cromwell sues on 4 diff bonds & 4 diff coupons
i. Sac says claim preclusion: Same parties, but not same cause of action
(negotiable instruments)
ii. Issue preclusion? Yes, finding of fraudulent bonds decided.
a. But, Cromwell still has opportunity to show he is bona fide purchaser
of these bonds
c. Questions to Ask: (1) Is there claim preclusion? If yes, analysis done. If not, (2) Is
there issue preclusion
C. Third Element: Adjudication
i. Cambria v. Jeffery (1940): auto accident. F1: J sues C, contributory negligence so C wins.
F2: C sues J.
a. The parties are not identical in F2 b/c they have changed roles; no claim preclusion
b. Is there issue preclusion? Why should the Court’s holding in F2 be ignored?
i. Issue of Cambria’s negligence was not essential to judgment b/c once F1
decided Jeffrey was negligent, didn’t matter that Cambria was negligent
c. Adversarial process rests on the best arguments being put forward by both sides;
Here, neither side will dedicate much time b/c the outcome is predetermined by issue
preclusion
i. F1 loser can’t use issue preclusion to its benefit in future proceedings b/c
F1 judgment turns on findings in favor of F1 winner
a. But alt. judgments/holdings out not to be given preclusive authority
ii. Neenan v. Woodside (1933): auto accident – F1: Huppman sues W (bus), H wins; F2: N
(passenger) sues W & H/ H attempts to introduce prior judgment as defenses.
a. No claim preclusion b/c parties are not identical
b. No issue preclusion b/c N never had her day in court; Due Process allows & requires
that N have opportunity to prove H’s negligence.
i. Rule: if you’re not a party to a judgment, you’re not bound by the
judgment (b/c you didn’t have your day in court/violate due process)
ii. Likely that stare decisis will allow H to apply F1 judgment in F2 anyway
D. Mutuality:
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i.
ii.
iii.
iv.
If P1 not bound by F1, then should not benefit from judgment. Based on fairness ideals.
DEFENSIVE nonmutual issue preclusion always allowed (master & servant re: car accident)
But fairness is not a goal of preclusion
Mutuality leads to bad outcomes; Courts originally created an exception in cases of imputed
liability & then distinguished b/n Offensive & Defensive uses if issue preclusion
v. Problems w/ Defensive Non-Mutual Issue Preclusion:
a. Judicial economy: encourages multiple suits
b. Inconsistent judgments in each suit possible
c. D may not litigate fully in F1 b/c of nominal damages & lured into a false sense of
security before F2
d. Procedural devices may be diff in F2 that leads to outcome determination
vi. Bernhard v. Bank of America (1942): Sather dies, Cook becomes executor; Brings
accounting to show his job is complete. F1: Probate Court; objection filed by beneficiaries
regarding $ transferred to C. Court says it was a gift from Sather, not embezzlement. F2:
Bernhard (new administratrix) sues Bank (active/passive wrongdoer); Bank aided & abetted
C in wrongdoing.
a. Bank asserts defensive non-mutual issue preclusion
b. Traynor makes all-out-attack on Mutuality, years before it is established as a bad
doctrine
vii. DeWitt v. Hall (1967): car accident. F1: F sues H, F (driver of cement truck) wins, not
negligent. F2: O sues H, O is owner of truck, raises issue preclusion via partial SJ.
a. (NY State Court)
b. H is attempting to relitigate the same claim; 2nd bite of the apple
c. **Mutuality is a dead letter***
i. Offensive non-mutual issue preclusion is allowable
ii. As long as F1 D had a full & fair opportunity in F1, a stranger to F1 can use
the F1 judgment in subsequent litigation
iii. No do-over b/c of theoretical concerns of preclusion
viii. Parklane v. Shore (1979): stockholders class action. F1: SEC vs. PL – injunction granted
to SEC b/c PL misled stockholders in proxy statement. F2: stockholders vs. PL – partial SJ
on issue fraud via issue preclusion.
a. SCOTUS says mutuality does not bar P from raising issue preclusion for its benefit;
trial court has discretion to allow offensive non-mutual issue preclusion
b. Factors to consider in discretion:
i. Will it promote a “wait & see attitude”?
a. Could the party have joined in the previous suit?
ii. Was there incentive to litigate fully in F1?
iii. Are there procedural opportunities in F2 that are diff from F1?
a. State versus federal?
iv. Can inconsistent results be locked in?
c. Parklane analyzed by factors:
i. Turns on F1 joinder; Stockholders could not join F1, so wasn’t “wait & see”
ii. No nominal case in F1; Parklane took both seriously
iii. No procedural diff; both in fed court
iv. No risk of inconsistency; only 1 previous action
d. Just b/c there’s a theoretical argument against offensive non-mutual issue preclusion
doesn’t mean it’s applicable to all case
E. Burden of Proof & Preclusion Basis: U.S. v. D
i. If D wins in criminal, then U.S. sues them in civil there is no issue preclusion for D b/c diff
standards of proof. Criminal = beyond reasonable doubt, civil = preponderance of evidence
ii. If U.S. wins in criminal then sues D again in criminal, there is issue preclusion for U.S. b/c if
proved heightened standard, will be able to prove lesser standard
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iii. If D wins in civil action & U.S. brings suit in criminal, there is issue preclusion for D b/c if
U.S. failed to prove lower standard, it will not be able to prove heightened standard
iv. If U.S. wins against D in civil then bring suit in criminal, no issue preclusion for U.S. b/c
them proving lesser standard doesn’t mean they can prove heightened standard
F. Relation to 7th Amendment: right to jury trial expanded, but invoking offensive non-mutual issue
preclusion doesn’t interfere; Just because there are equitable legal factors doesn’t mean you litigate
one before the other (Beacon doesn’t control)
G. Note: public policy against invoking offensive non-mutual issue preclusion against government
XVII. Stare Decisis
A. Highest court gives ultimate authority; once given, followed until overruled; overrule cautiously
B. Compare to Claim/Issue Preclusion
i. Stare Decisis effects everyone in jurisdiction; preclusion applies on to specific parties
ii. Stare Decisis emanates from highest court; preclusion binds parallel courts, even highest
courts, also interjurisdiction
iii. Stare Decisis can change, it’s flexible; preclusion is inflexible & forever applies
C. Planned Parenthood v. Casey (1992): PA passed abortion restriction statute challenging Roe v.
Wade. Court provides outline of when it is appropriate to disregard stare decisis & overrule itself.
i. Four Considerations for Overruling Precedent:
a. (1) Has the rule become intolerable/unworkable?
b. (2) Would reliance on precedent create hardship?
i. People should be able to rely on past decisions
c. (3) Principle effectively abandoned?
d. (4) Has there been a change of fact that makes it no longer significant?
ii. Also concerned w/ respect of Court’s authority; people follow what Court says b/c of its
consistency. Stare decisis is the source of Court’s legitimacy.
D. Leegin v. PSKS (2007): manufacturer wants to limit intra-brand competition by being able to set
prices. Here, court says rule is ripe for overruling b/c it no longer reflects realities of modern market
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XVIII. Statutes & Rules
A. Source of Judiciary Powers: Article III, U.S. Constitution
B. Federal Jurisdiction
i. Diversity of Citizenship: USC §1332
ii. Interpleader: USC §1335, FRCP 22
iii. Federal Question: USC §1331
iv. Creation of Remedy: USC §2201
v. Supplemental Jurisdiction: USC §1367
vi. Removal of Civil Action: USC §1441
vii. Federal Officers or Agencies Sued or Prosecuted: USC §1442
viii. Civil Rights Cases: USC §1443
ix. Nonremovable Action: USC 1445
x. Procedure for Removal of Civil Actions: USC §1446
C. Summons: FRCP 4
D. Venue
i. Venue Generally: USC §1391
ii. Change of Venue: USC §1404
iii. Cure or Waiver of Defects: USC §1406
E. Rules of Procedure & Evidence – Power to Prescribe: USC §2072
F. Scope & Purpose of Federal Rules: FRCP 1
G. One Form of Action: FRCP 2
H. Pleadings
i. Pleadings Allowed: FRCP 7
ii. Disclosure Statement: FRCP 7.1
iii. General Rules of Pleadings: FRCP 8
iv. Pleading Special Matters: FRCP 9
v. Form of Pleadings: FRCP 10
vi. Signing Pleadings – Sanctions: FRCP 11
vii. Defenses & Objections – Judgment on the Pleadings: FRCP 12
viii. Amended & Supplemental Pleadings: FRCP 15
I. Pretrial Conferences: FRCP 16
J. District Court Rules & Judges Directives: FRCP 83
K. Crossclaims & Counterclaims FRCP 13
L. Joinder
i. Joinder of Claims: FRCP 18
ii. Required Joinder of Parties: FRCP 19
iii. Permissive Joinder of Parties: FRCP 20
iv. Misjoinder & Nonjoinder of Parties: FRCP 21
M. Class Actions: FRCP 23
N. Summary Judgement: FRCP 56
O. Disclosures & Discovery
i. Duty to Disclose – General Provisions Governing Discovery: FRCP 26
ii. Depositions to Perpetuate Testimony: FRCP 27
iii. Persons Before Whom Depositions May Be Taken: FRCP 28
iv. Stipulations About Discovery Procedure: FRCP 29
v. Depositions by Oral Examination: FRCP 30
vi. Depositions by Written Questions: FRCP 31
vii. Using Depositions in Court Proceedings: FCRP 32
viii. Interrogatories to Parties: FRCP 33
ix. Producing Documents: Rule 34
x. Physical & Mental Examination: Rule 35
xi. Requests for Admission: Rule 36
xii. Failure to Make Disclosures – Sanctions: Rule 37
P. Juries
i. Right to a Jury Trial – Demand: FRCP 38
ii. Trial by Jury or by the Court: FRCP 39
iii. Right of Trial by Jury: Seventh Amendment, U.S. Constitution
Q. Judgement as a Matter of Law (JNOV): FRCP 50
R. New Trial: FRCP 59
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