Civ Pro Outline—Owens—Prof. Moore 2011
a. Fed courts
i. limited jurisdiction
b. State courts
i. have general jurisdiction
1. most suits can be brought before state courts
ii. state supreme court decisions can be appealed to scotus, but only if it’s a Q of fed law
c. choice of forum
i. court must have:
1. personal J over D
a. general J: can hear most suits that fed courts can hear
2. subject matter J
a. Fed limited J
i. 28 USC 1331: district cts. original J of all civil actions arising under the fed law
(const, laws, treaties of the US)
ii. 28 USC 1332: district cts. original J of all civil actions where amount in
controversy > $75k AND is between
1. citizens of diff states
2. citizens of a state and citizens/subjects of a foreign state
3. citizens of different states and in which citizens of foreign state are
addition parties
4. a foreign state P against citizens of a state or diff states
iii. 28 USC 1337—supplemental J
3. Court must be the appropriate venue, as dictated generally by legislatures
a. Development of the doctrine
i. Pennoyer 1877: territorial
1. state can’t exercise J over persons or property outside the territory
2. state has J over people and property in the state
ii. Hess 1927: driving on state highways, accepting rights and privileges of the state = appointment of the
registrar as his agent upon whom process can be served for action arising out of accident on road
iii. International Shoe 1945: sufficient contacts w/ forum state warrant exercise of J
iv. Gray 1961 IL state sup. ct.: IL long-arm: commit tort in state; injury in state from product manufactured
out of state = tortious act in state; minimum contacts: stream of commerce—corp. sells products for
ultimate use in another state
v. McGee 1957: TX co. K w/ CA res was sufficient for suit in CA based on the K
vi. Hanson 1958: D must make purposeful act by which it avails itself of privilege of conducting activities w/in
forum state; unilateral acts of another don’t establish purposeful availment/foreseeability
vii. Worldwide Volkswagen 1980: car dealer didn’t have contacts, no purposeful availment; didn’t deliver car
into stream of commerce w/ expectation that they would be purchased by consumers in forum
viii. Kulko: D father didn’t avail himself of benefits of CA by having his daughter live there; financial “benefit”
of his daughter being out of his home wasn’t due to her presence in CA
ix. Burger King 1985: “contract-plus” analysis
x. Asahi 1987: reasonableness analysis overcomes minimum contacts (though there was no majority
b. Specific personal jurisdiction
i. Overview
1. rule 4k—fed dist. courts can exercise personal J when the state courts can
2. does the state long-arm statute authorize J?
does the suit arise out of/relate to D contacts with the forum? If no, then must get general J
a. no scotus majority on arising out of/relating to analysis—don’t know if related to is
sufficient or arising out of (higher bar) is required
i. however, Brennan in Helicol:
1. Arises out of
a. is an element of the cause of action D’s contacts with the
b. procedural law allows/requires P to make allegations to state
a claim and one of those allegations is D’s contact w/ the
2. related to—lower bar, which expands the realm of specific J
a. direct and significant relationship btwn the contacts and the
suit—pilot trained in TX, negotiations for transport K
occurred in TX, helicopter purchased in TX
4. does D have sufficient minimum contacts such that D can be said to have:
a. purposefully availed himself of benefits of forum
b. reason to foresee being haled into court there
5. is it reasonable and fair to exercise J over D? Factors:
a. burden on D
b. P interest in convenient forum for redress
c. forum state’s interest in adjudicating the dispute
d. interstate judicial system’s interest in efficient resolution of cases
e. shared interests of the states in furthering fundamental substantive social policies
ii. minimum contacts
1. Generally
a. when sufficient contacts established, it becomes presumptively not unreasonable to
require submission to burdens of litigation in the forum
i. D must then present compelling case that other considerations render J
b. number of required contacts may be reduced when interests of the forum and P
strongly support J (McGee)
c. any hazardous activity/product enhances the contact
i. Hess (driving auto),
d. contracts (“contract-plus” analysis)
i. not necessarily enough by itself to establish minimum contacts, must look at it
1. nature of relationships/obligations created
2. prior negotiations and contemplated future consequences
3. actual course of dealing/performance
ii. adhesive provisions/duress/unequal bargaining power may go against
purposeful availment (didn’t work as defense in Burger King)
1. sophisticated business person gets less leeway here
iii. a single sales K can be sufficient (Alchemie district ct): D calls and mail
communications to P were significant contacts
1. other courts have declined to exercise J in these circumstances
e. relationship to reasonableness considerations:
i. the more contacts, the less likely it will be that litigation in the state will be
overly burdensome to D
ii. the more contacts, the more likely it will be that forum state has interest in
trying the suit there
2. purposeful availment
invoke benefits and protections of forum?
i. choice of law in a K goes toward demonstrating purposeful availment
ii. activities shielded by benefits and protections of forums laws
b. availment of privilege of conducting business in the forum
i. reciprocity: with privileges come responsibilities/obligations
c. D deliberately engages in significant activities w/in state
d. create continuing obligations to residents of the forum
e. unilateral acts of another won’t establish purposeful availment
f. contact can’t be formed by random/fortuitous means
g. stream of commerce:
i. O’Connor in Asahi: need awareness that product will get to forum plus
additional conduct directed toward the forum such as
1. designing product for market in forum
2. advertising in forum
3. establishing channels for providing advice to customers in forum
4. marketing product through distributor who has agreed to serve as a
sales agent in the forum (actions/presence of distributor can be
attributed to you for purposeful availment purposes)
5. agents in the forum
ii. Brennan (?) in Asahi: awareness that product will get to forum is enough
1. stream of commerce is regular, predictable, so possibility of law suit
should come as no surprise
2. (when stream is not so predictable, then placing product in the stream
may not amount to purposeful availment)
iii. Stephens in Asahi: factors to consider
1. volume of product that gets to forum
2. value of the profits earned from forum
3. hazardous nature of the products
a. when hazardous, it’s also more foreseeable to be sued
a. not w/r/t possibility that product will travel to forum state
b. foreseeability that matters is the foreseeability of being haled into court
Calder “effects” test: D alleged to commit
a. intentional act
b. expressly aimed at forum state (not satisfied in Pebble Beach or Schwarzenegger)
c. causing harm, the brunt of which is suffered, and which D knows is likely to be suffered,
in the forum state
i. Pebble Beach: “something more” than just foreseeable harm required
1. internet domain name and passive website alone not “something
2. individualized targeting helps
3. correspondence directly w/ P
d. Kulko: effects test misplaced when father bought ticket sending daughter to CA
e. continues to have viability, but only when D conduct has effect in forum and was
directed at forum by D
Internet contacts
a. active website that carries out transactions has been found by some courts to be
sufficient for personal J—sell product in forum is availment of privilege of doing business
in the forum
b. “passive” website that does little more than make info available, generally won’t
support personal J
i. but can if the info posted is defamatory, for example
“interactive” sites—allow user to exchange info. w/ business; e.g. medical advice
i. courts all over the map on these
d. Zippo is arguably just the old purposeful availment/foreseeability minimum contacts
e. Many courts now following Pebble Beach and Calder effects test
i. must demonstrate purposeful availment or purposeful direction
1. purposeful availment requires action taking place in the forum
invoking benefits and protections of forum laws—website
maintenance outside forum is not activity in the forum
2. purposeful direction: Calder effects test—foreign act aimed at and has
effect in the forum (see above for test)
iii. reasonableness factors
1. Generally
a. Reasonableness analysis can defeat minimum contacts (will be rare—Asahi)
b. you can’t get J based entirely on reasonableness considerations w/ no minimum
2. burden on D
a. inconvenience of having to travel is not sufficient to defeat J
i. modern transport/communications make it less burdensome for D defend
ii. difficulty of putting on a defense in the forum state is an important
consideration, however
b. burden on foreign defendant to defend in a foreign legal system is important
c. serious burdens can be justified if minimum contacts are established
3. P interest
4. state interest
a. provide forum for citizens to have relief
b. ensure that dangerous/harmful products are not introduced into market
c. ensure safety of roads
5. interstate judicial system interest in efficient resolution of disputes
6. shared interest of the US in furthering substantive social policies
a. end race discrimination, for instance
b. shared interest of states in foreign affairs policies: great care and reserve should be
exercised when extending our notions of jurisdiction into the international field
iv. what about contacts of P w/ forum state
1. personal J inquiry is about protecting defendant
2. Keeton v. Hustler: P could sue for libel in NH, even though she had few contacts
3. forum state interests are minimal when P has no contacts w/ the forum state
General personal jurisdiction
i. If claim doesn’t arise out of/isn’t related to D’s contacts with the forum, must find grounds for general J
ii. minimum contacts
1. must be continuous and systematic
a. Perkins: corporation doing business out of Ohio was sufficient for general J
b. sue Disney in PA for injury that happened in FL; general J OK b/c continuous/systematic
c. Helicol: purchase of helicopters and training of pilots in TX wasn’t enough
d. Fisher Governor: sales and sales promotion in state by independent nonexclusive sales
reps not enough
iii. reasonableness—split in the circuits as to whether or not separate reasonableness analysis is required;
scotus hasn’t answered this
1. usually will be reasonable anyways when there are continuous and systematic contacts
Service of process
i. serve process on US citizen in a foreign country is OK; doesn’t violate any right of the foreign gov’t: if you
get benefits of citizenship, you have obligations of citizenship
ii. serve process on state A resident while in state B is also OK if state A law allows (Milliken)
1. state that gives privileges and protection may extract reciprocal duties
iii. when is a person present in the state? in a plane flying over Arkansas was OK
personal jurisdiction based on property
i. In rem suit
1. purpose of suit is to resolve ownership of the property
2. ruling has effect against any other potential claimants, no matter where in the world they are
ii. quasi-in-rem suit
1. D has property in state, but is absent, can’t get in personam J
2. any judgment affects only the property seized—can’t get an award higher than the value of the
personal J based on consent
i. court can exercise personal J over D who consents because personal J standards are largely for the
protection of D’s due process rights; if D consents, it’s not a due process violation to exercise J
ii. ways to consent
1. expressly: admit in answer that court has personal J
2. fail to object to exercise of personal J timely or in the proper manner
a. rule 12 sets out proper objection procedures
i. 12(b)—D can either:
1. raise the defense in responsive pleading
2. raise the defense in a motion before answering the complaint
a. this motion must come before the responsive pleading if it to
be made
ii. 12(g)(2):
1. D can’t make motion asserting lack of personal J after making a motion
for lack of SMJ; failure to dispute personal J in preliminary motion in
which you challenge SMJ constitutes waiver of personal J defense
2. you have to include all the listed defenses that you believe apply in a
single motion
iii. 12(h)(1): waive defense of lack of personal J (and 3 others defenses):
1. if you omit it from a 12(b) motion
2. if you don’t make a 12(b) motion or fail to include it in a responsive
pleading or amendment allowed by Rule 15(a)(1)
iv. this is the “direct” challenge to personal J
b. collateral challenge to personal J
i. assert that a previous judgment was invalid b/c that court didn’t have personal
1. risky because if you wait to challenge personal J in the collateral
proceeding, that’s all you get to challenge; no chance to challenge
judgment on the merits
a. because you can never challenge judgment on the merits in
collateral challenge?
ii. available only if you did not show up and challenge personal J in the first (if you
show up and challenge personal J in the direct proceeding, lose, and don’t
contest on the merits but get default judgment entered, you don’t get to
challenge personal J collaterally)
1. you can challenge personal J on appeal
failure to comply w/ discovery request for determination of personal J after challenging personal
4. statutory consent
a. statute deems person to have consented to personal J by engaging in certain acts (like
driving in Hess)
b. requirement that foreign corp. register an agent for service of process as condition of
doing business there
c. post-Shaffer, may still need to do minimum contacts analysis (or might not—the Shaffer
court partially relied on the absence of such a statute in DE to find lack of personal J)
i. statute may go toward establishing minimum contacts
5. consent by estoppel
a. you represented to P that you have contacts in the state, P relied on that, so you are
estopped from claiming that you don’t have contacts
6. consent to J in Contracts
a. forum selection clauses are presumptively valid
b. fraud, duress, unequal bargaining power, sneakiness may go against enforcing forum
c. generally, it’s not as much of a due process concern, since it’s the Ps that are
jurisdictional reach of the federal district courts
i. rule 4(k): fed court can exercise personal J whenever the courts of the state in which it sits can
1. look at state long-arm statute
2. determine if the exercise of J would be constitutional
ii. rule 4(k)(1)(c): fed court can also exercise J if there is a statute that authorizes the fed court to do so
iii. rule 4(k)(2): when fed court can reach further than state courts
1. suit arises under federal law and D isn’t subject to personal J in any state
a. to prevent federal Q cases falling through the cracks
b. this provides statutory authorization for J, but still needs to be const’l under 5th
amendment due process (as opposed to 14th, which applies to the states)
i. look at minimum contacts with the nation
iv. rule 4(k)(1)(b): also beyond bounds of state court J
1. impleaded D’s (rules 14 and 19) if process is served w/in 100 mile radius of the district (?)
2. for constitutionality: contacts with the “bulge area” or with the state where the courts is located
personal J round-up
i. J based on presence in state—D served while present in the state
1. Burnham split (jurisdiction valid, but no majority on rationale):
a. Scalia: D present in state = case closed
b. Brennan: b/c of Shaffer, must do minimum contacts analysis (but not “arising out of”
analysis (?))
i. purposeful availment—very broad conception (usually (always?) satisfied by
ii. foreseeability—tradition is relevant in that it gives D notice that being present
may subject him to suit
iii. reasonableness—minimum burden on D (he already has traveled there)
ii. D not present
1. rule 4k: fed court can exercise J if state court of general J can
a. look to state long-arm statute
b. then look to constitutionality/minimum contacts
2. suit related/arise from contacts? if so, then specific personal J is sufficient
a. minimum contacts must be such that they demonstrate purposeful availment or
foreseeability of being haled into court
i. purposeful availment in stream of commerce (Asahi)
1. O’Connor: stream of commerce plus awareness that it will end up in
forum plus something else specifically directed to forum
2. Brennan: stream of commerce plus awareness that it will end up in
3. Stevens: volume, value, hazardousness
ii. foreseeable for D to be haled into court in forum
1. Calder effects test
b. reasonableness
i. D burden
ii. P interest
iii. state interest
iv. interstate judicial system interest in efficiency
v. social policies
vi. reasonableness factors may reduce the required minimum contacts;
reasonableness analysis that goes against exercising J can defeat the existence
of minimum contacts
3. if suit isn’t related to D’s contacts with the forum, must have contacts sufficient for general J
a. contacts must be continuous/systematic
b. may have to do reasonableness analysis (not clear)
iii. J based on consent
1. express consent
2. fail to object properly
3. fail to cooperate w/ adjudication of question of jurisdiction
4. statutes that deem D to have consented (may still need minimum contacts)
5. estoppel by saying that you do have contacts
6. contract forum selection clause
iv. J based on citizen/resident/domiciliary status
1. might not be sufficient; post-Shaffer, may require minimum contacts
v. J based on property in the forum (post-Shaffer, minimum contacts required)
1. In rem: will satisfy minimum contacts
2. quasi-in rem
a. likely to satisfy minimum contacts when:
i. suit regards P interest in D property (similar to in rem)
ii. suit relates to injury on D property; liability is based on D ownership of
b. won’t satisfy minimum contacts analysis:
i. suit is unrelated to D property
a. required by due process
i. like personal J, there are statutory (rule 4) and constitutional requirements for providing notice
ii. service must satisfy both
1. example: actual notice is sufficient for constitutional purposes, but manner of service must
comply with statutory requirements, even if constitutional requirement is met
b. Constitutional requirements
i. method of notice reasonably calculated under the circumstances to provide actual notice
1. D doesn’t have to get actual notice
2. doesn’t have to be the best possible method
3. always satisfied by personal service within the jurisdiction
4. service by publication is sufficient when
there is no other way of getting ahold of a person—we don’t know who they are or
where they are
b. it helps if you take additional steps
i. real property: post notice on the land
c. not sufficient for people whose address you know (Mullane)
d. subsequent court decisions are less friendly to publication or publication plus than
suggested by Mullane, especially when there is another option available
5. mail can be sufficient (known beneficiaries in Mullane)
ii. general considerations in determining if method of notice is reasonably calculated to provide actual
notice (balancing state interest in finalizing legislation vs. individual interests):
1. nature of the interest
a. if there is a class of people with common interests, there are less stringent notice
i. notice that will reach most of them will make sure that if there are objections,
the interests of all will be safeguarded
ii. so it’s more acceptable to run the risk that not every person will receive actual
2. burden of a particular type of notice to P
3. state interest
a. interest in finalizing litigation may decrease the notice required
4. It’s a case-specific inquiry
iii. cases
1. Wuchter: non-res motorist statute invalidated by scotus b/c didn’t require communication of
2. Mullane: attachment of chattel or real estate, together w/ publication adequate b/c property
owners are usually aware of and concerned about the status of their property
3. constructive notice doesn’t satisfy due process if name and address of D is known or available
from public records
4. eviction notice posted on door might not be sufficient
5. when is mail sufficient?
a. Dusenbery scotus: mail sent to prison sufficient
b. Flowers: certified mail returned to govt unopened, so govt had to take additional
reasonable steps like re-send in normal mail; but don’t have to search phonebook or
public records to locate new address
i. ex post approach to determining if reasonably calculated
statutory requirements (rule 4)
i. rule 4 attempts to comply w/ constitutional requirements for content and method of notice
ii. rule 4(d): request for waiver of service of process
1. P sends written notice to D—form 5—by 1st class mail or other reliable means
2. send copy of complaint and copy of waiver form (form 6)
3. describes consequences of executing the waiver or failing to do so
4. gives due date and addressed stamped envelope
5. if D returns waiver, P doesn’t have to formally serve notice
6. Incentive to execute the waiver rather than elude process
a. D gets 60 days instead of 20 days to file answer
b. D has to pay costs of serving process if he doesn’t execute the waiver, including costs of
any motion P may have to file to recover the costs of service expenses
c. These consequences don’t apply to D who has good cause not to waive (4d2)
7. committee notes: unless D waives process, receipt alone of the request to waive doesn’t give rise
to obligation to answer and doesn’t provide basis for default judgment
iii. rule 4(e) (this is when D does not waive?) an individual may be served in a judicial district of the US by:
following state law for courts of general J in the state where dist. ct. is located or where service is
a. does this mean that if I’m in suing in Utah court, D is in MD, I follow only MD law in
serving or can I follow either Utah or MD law? Ans: follow the law of MD for service in
MD or law of UT for service out of state.
b. Chaves: MD requires certified mail, P sent summons/complaint by 1st class, so service
was invalid, default judgment was overturned
i. Moore: not hard for P to comply w/ service requirements, no reason not to
strictly enforce them, bright line rule valuable here
2. deliver copy of summons/complaint to D personally
a. must “place and leave with” person
b. throwing envelope at person, hitting D in chest w/ papers not sufficient
c. placing on shoulder of man hiding in wife’s petticoats is sufficient
3. leave copy at D’s dwelling or usual place of abode w/ someone of suitable age or discretion who
resides there
a. D traveling around country, doesn’t really have home, service at brother’s house where
he had listed his address sufficient
b. D can have more than one place of abode
i. D living at one of his multiple homes the day notice was left w/ housekeeper at
that home was fine
c. service left w/ D wife in MD OK even though family was moving to AZ and D had already
d. service left w/ estranged wife in DC not OK—D didn’t receive summons for 3 years
4. delivering copy to agent authorized by appointment or by law to receive service of process
a. agent can be contractually appointed
i. Szukhent: lease contract designates woman in NY as agent to receive process
for D in WI; scotus thinks it’s fine even though NY agent wasn’t contractually
obligated to notify D that she had received process
1. it was important that D actually did get notice, otherwise the agency
would have been invalidated
2. dissenters feared that conflict of interest could lead to agent not
notifying D of suit, leading to default judgment against D
a. also concerned about the appointment clause being in
iv. rule 4(h): serving corporation, partnership, or association
1. can use waiver process
2. can serve in judicial district of US
a. in the manner prescribed by 4(e)(1) for serving an individual (i.e. according to the law of
the jurisdiction)
i. does this mean that you serve it according to the state’s laws for individuals or
according to the state’s laws for corporations?
b. by delivering copy of summons and complaint to officer, managing or general agent, or
any other agent authorized by appointment or by law to receive service
i. Insurance Co. of North America: service on insurance adjuster at D office was
sufficient, even though he wasn’t “appointed”
1. court interpreting the rule liberally in light of const’l requirement that
the manner be reasonably calculated to provide actual notice
ii. service on receptionist of shared office of D corporation and another
corporation was sufficient
iii. may become “appointed” by practice of receiving process
v. who can serve process?
1. any adult not a party to the suit
vi. Rule 4(m): when do you have to serve process?
1. within 120 days from the time of filing complaint in the court
2. must be aware of statute of limitations
a. in most states you just have to file complaint before statute runs
b. in others, you have to serve process on D before statute runs
c. in case of waiver, service is effective upon filing of waiver
d. like personal J, notice and service of process requirements may be waived by party at trial or even in advance of
litigation (cognovit notes not per se violative of due process)
a. provisional remedies—those imposed before reaching final judgment (TRO, preliminary injunction)
i. rule 65—restrictions on provisional remedies
1. notice requirements
2. time limits on TRO
3. requirements for posting security so that if the court gets it wrong, there’s compensation for the
party that was harmed by the provisional remedy
ii. constitutional due process requirements
1. Fuentes: PA and FL replevin statutes found unconstitutional; important factors:
a. application for replevin required only conclusory assertions, no showing
b. applicant must post bond
i. this is some protection
ii. however, all it really does is make sure that P subjectively believes that they
have a valid claim, which isn’t much of a protection
c. writ issued by clerk, not judge
d. notice
i. only received notice when the property was seized
e. opportunity to be heard
i. FL: D can post bond w/in three days to recover property or reply to suit
ii. PA: D must initiate suit to recover
iii. court: not sufficient to reduce risk of unwarranted deprivation
1. temporary deprivation is still a deprivation forbidden by due process if
2. Mitchell sequestration statute found constitutional
a. application required showing of facts in documentary evidence establishing entitlement
to the writ and showing threat to creditor’s interest
b. decision made by judge
c. D must post bond
d. D can immediately seek dissolution of writ to regain possession, which is issued unless
creditor carries burden of proving the claim was valid
3. North Georgia Finishing garnishment provision unconstitutional
a. affidavit stating amount claimed to be due and stating that P has reason to apprehend
loss of the money without the garnishment (can be given by P attorney who has no
actual knowledge of the underlying facts)
b. post-deprivation, D can only dissolve the garnishment by posting bond
c. clerk is involved
d. P had no pre-existing interest in the bank account (unlike in Mitchell)
4. Doehr attachment procedure unconstitutional
a. P suing D for assault, seeks to attach property
b. file affidavit asserting (not showing) probable cause that P will prevail (no showing of
i. high risk of erroneous deprivation, requires only P subjective belief that he will
ii. not subject to proof by documentary evidence b/c it’s a tort claim, not a claim
regarding failure to pay for repairs on the house or some such
c. no posting of bond on part of P
d. judge decides whether to attach or not
e. no notice of attachment until after it has been attached (hasn’t even seen complaint
f. no opportunity to be heard before the attachment
i. after, D can assert there wasn’t probable cause and put up a bond to remove
the attachment
g. interests of D at stake: credit rating, default on mortgage, can’t sell property, can’t
borrow against the house
i. not a complete deprivation, but substantial enough that it is protected by due
h. P interest in the property
i. no pre-existing interest in the assault claim, interest is contingent on getting
judgment in his favor
ii. no indication that D is trying to get rid of property to prevent P from collecting
in case of judgment in his favor
i. Governmental interest?
i. not more efficient to have hearing post-deprivation rather than pre
ii. cost alone isn’t enough to defeat due process requirements
5. When it’s OK to deprive w/o pre-deprivation hearing
a. exigency—need to move quickly
b. strong govt/public interest at state
c. govt official looking at narrowly tailored statute to determine if deprivation should
d. collecting taxes
e. satisfying needs of war effort
f. protect against bank failure
g. danger against public from mislabeled/contaminated drugs (narrowly tailored statutes)
h. (these factors absent in Fuentes
6. waiver of pre-seizure hearing
a. issue of contract interpretation: was it knowing/voluntary? adhesive?
b. in Fuentes a clause providing that creditor would have right to repossess said nothing
about the process of repossession, so as a matter of interpretation, it did not amount to
a waiver of process
7. Doehr test
a. interests of the property owner
b. risk of erroneous deprivation under existing procedures
i. potential value of different/additional procedures in reducing risk of arbitrary
c. interests of the person seeking the remedy
i. plus ancillary govt interest
8. general factors
a. judge better than clerk
b. bond by claimant better than no bond
c. requiring showing of facts susceptible to proof by documentary evidence better than
conclusory assertions of facts that will be hard to prove without a hearing
Diversity jurisdiction
i. Constitutional limitations on subject matter J of federal courts (Art III)
1. diversity of citizenship
2. cases arising under laws and treaties of US
3. must find Art III basis for any case brought in fed court
ii. Statutory limitations on SMJ of fed courts
1. Diversity: 1332 gives portion of Art III diversity authority to fed courts
a. case between citizens of different states
i. complete diversity
1. no two opposing parties can be citizens of the same state
2. this is statutory, not const’l limitation
3. (some statutes allow for minimum diversity in fed courts (class action,
big accidents))
4. if diversity and amount in controversy requirements are satisfied,
every fed dist. ct. has SMJ
b. amount in controversy is GREATER than $75k ($75k is not enough)
c. cases where fed courts won’t hear cases that otherwise satisfy 1332 requirements:
i. court probate proceedings
ii. domestic relations cases (divorce, alimony, custody)
iii. states have better expertise with these things, and state law will rule
iv. this isn’t a complete ban on cases that may implicate these things, however;
the court will hear
1. child abuse claims
2. claims against administrator of will
3. the court will ask what the core of the claim is; if court is being asked
to probate the will, it will not hear it
iii. rationale behind diversity jurisdiction of federal courts
1. avoid bias against out-of-state parties
2. but problems:
a. involves fed courts in settling disputes under state laws (state tor claims)
i. it’s not w/in authority of fed courts to decide what state law is
b. may be bias in favor of big business/creditors in federal courts
iv. Citizenship for diversity purposes
1. determined at time the suit was brought—can’t defeat diversity by moving after litigation starts
2. individual US citizen: state of domicile
a. domicile: fixed permanent home where you intend to return when absent
b. change domicile: take up new residence with intent to remain there
i. look at all the facts to determine if there is intent to remain
3. Alien:
a. permanent resident
i. state of domicile
ii. some courts also hold them to be citizens of their country of origin
b. non-permanent resident
i. country of origin
4. Partnership
a. citizenship of the individual partners (so partnership can be citizen of multiple states)
5. unincorporated association
a. citizenship of the members
6. corporation
a. place where incorporated
principal place of business = nerve center/headquarters—where decision-making
authority is located
c. thus, corporation can be citizen of more than one state
v. Amount in controversy
1. accept P good faith allegations unless it appears to a legal certainty that P can’t recover that
a. look at facts available
b. look at the law to determine if the law authorizes the claimed remedies
i. if not, then it can be said w/ legal certainty that P can’t recover
2. determining value of injunctive relief
a. different approaches
i. value to P (majority)
ii. cost to D (minority)
iii. either value to D or cost to P, if one of them exceeds amount in controversy,
then OK (minority)
iv. value to the party trying to get fed jurisdiction, whether it be P or D (minority)
3. aggregation to meet amount in controversy requirement
a. single P suing single D
i. can aggregate different types of relief sought (damages plus injunction)
ii. can aggregate awards sought from multiple claims
b. multiple P suing single D
i. generally can’t add up P’s claims unless suing on common, undivided interest
1. P’s are part of partnership, D owes partnership $80k
2. P’s own property where their interest is common and undivided
3. common interest doesn’t exist just because their claims arise from the
same accident
c. single P suing multiple D’s
i. cant aggregate claims against separate Ds unless substantive law says that Ds
are jointly and severally liable for the amount of the judgment
Federal question jurisdiction (“arising under”)
i. 28 USC 1331: dist. courts shall have original J of all civil actions arising under the Constitution, laws, or
treaties of the US
ii. Constitutional scope of arising under jurisdiction
1. 1824 Osborn: Art III authorizes SMJ when there is a federal ingredient
iii. Statutory scope of arising under J
1. 1331 interpreted to authorize much more narrow set of suits than Art III; why?
a. congestion
b. federal ingredient test creates practical problems b/c it’s hard to know at the beginning
of the suit what will come up in litigation
2. Well-pleaded complaint rule
a. in determining whether the claim arises under US laws, consider only claims that are
necessary in order for P to state a claim for which relief can be granted
i. can’t get arising under J by pleading federal law issues (unconstitutionality of
statute) in anticipation of D’s potential defenses under fed law (Mottley)
3. creation test:
a. suit arises under the law that creates the cause of action
i. Eliscu: fed law creates cause of action for copyright infringement, but suit was
about ownership/property interest in copyrights, which is created by state law
4. combined test
a. well-pleaded complaint: look at allegations necessary for a complaint that states a
claim; this is the set of allegations that we’ll look at in creation test
b. creation: ask what body of law creates the cause of action that the allegations assert
limits to the creation test—doesn’t always work to determine if arising under J exists
a. sometimes creation test is satisfied, but “arises under” isn’t
i. Shoshone: fed law creates cause of action, but fed law says that local law is
going to govern the cause of action
b. sometimes creation test fails, but “arises under” is satisfied
i. state law creates the cause of action, but there is an embedded federal issue
1. Smith: state law created the cause of action, but there is a federal
question as to whether the law is constitutional
2. Moore: arguably calls Smith into question
a. sue on KY employer liability act that provides negligence
cause of action for violation of fed safety standard
b. this is an embedded federal Q, but court denies arising under
3. crucial difference: Smith dealt with constitutionality of a law, whereas
Moore was just about safety standards
a. you would get a lot more tort litigation in fed courts if SMJ
were allowed in Moore
challenging subject matter jurisdiction
i. direct
1. rule 12: opportunity to challenge SMJ greater than personal J
a. can challenge in 12(b) motion before answer
i. unlike personal J, failure to assert the defense in a 12(b) motion asserting other
defenses doesn’t waive the defense
b. can challenge in the answer
c. can challenge at any time
d. court can bring it up sua sponte
e. can come up for first time on appeal (Grupo Dataflux)
f. why the difference between SMJ and personal J?
i. personal J protects D from being subject to court that doesn’t have authority,
but D can consent and waive rights
ii. SMJ requirements protect constitutional and statutory limits; parties can’t give
to fed courts more authority than Const and Cong have given them
ii. collateral
1. more restrictive than ability to attack personal J in some respects
a. less categorical—you won’t always get ability to challenge in specified circumstances,
must look to different factors below
i. with personal J, you always have the opportunity to not show up, allow default
judgment, and challenge personal J collaterally
ii. don’t always have the opportunity with SMJ
b. but less restrictive in the sense that you don’t get to challenging personal J collaterally if
you showed up and challenged it in the direct proceeding; no such bar for SMJ
c. concerns with allowing collateral attack
i. finality of judgments—interest in preventing things from being re-litigated
1. if in direct proceeding, the issue of SMJ was fully and fairly litigated,
you don’t get a chance to challenge it again
a. interest in finality is particularly strong when party has
reasonably relied on the finality of the judgment
2. But if party didn’t have the opportunity to challenge SMJ in the direct
proceeding, then that points toward allowing collateral challenge
could have been default judgment, or maybe only one side of
the issue was presented
ii. if SMJ was determined as a factual matter, less likely to revisit
1. but if it was decided as a matter of law, then we’re more likely to
allow challenge—interest in getting the law right
iii. courts exceeding their limits; more likely to allow collateral challenge when:
1. lack of SMJ is clear
2. allowing original judgment to stand would infringe on authority of
another court or agency
3. original court was one of limited jurisdiction
a. more likely/possible to overstep its bounds than a court of
general J
Supplemental Jurisdiction
i. 28 USC 1367
1. a) Except as provided in (b) and (c), if dist. ct. has original J, it has supplemental J over all other
claims so related to the claims in the action w/ original J that they form part of the same Art III
case/controversy; this includes claims that involve joinder or intervention of additional parties
2. b) if J is based solely on diversity, no supplemental J when P brings claims against parties joined
by rules 14, 19, 20, or 24 or over claims by P’s proposed to be joined under 19 or seeking to
intervene under 24, when exercising supplemental J over those claims would destroy diversity
a. without this it would be easy for P to get around diversity requirement by suing only
diverse D, followed by impleading non-diverse D
b. this only bars claims by plaintiffs, doesn’t say anything about claims by Ds
i. so if P sues D, D counterclaims, then adds on claims against non-diverse P’s,
1367 text doesn’t prevent this
1. but does Allapatah?
3. c) dist. ct. MAY decline to exercise supplemental J over claim if
a. claim raises novel or complex issue of state law
b. claim substantially predominates over the claim/s over which the dist. ct. has original J
c. dist. ct. has dismissed all claims over which it has original J
d. in exceptional circumstances, there are other compelling reasons for declining J
4. d) extends statute of limitations period for dismissal of certain claims
5. There are times when 1367(b) allows for supplemental J when there is not complete diversity
a. when?
ii. claims part of same case or controversy: common nucleus of operative fact
iii. 1367(c) exercise of discretion
1. Executive Software: restrictive reading of 1367(c): dist. ct. can only decline to exercise
supplemental J over claim if they point to one of the reasons listed; can’t do free-wheeling Gibbs
2. other courts have read 1367(c) less restrictively: (c)(4) gives permission to consider factors other
than just (1), (2), and (3)
a. Gibbs factors:
i. judicial economy
ii. convenience
iii. fairness
iv. needless decisions of state law by fed ct. should be avoided both as a matter of
comity and to promote justice between the parties
1. surer-footed reading of applicable law in state court
v. does the state law claim predominate?
1. not efficient for feds to resolve it when feds can’t give authoritative
pronouncement of state law
vi. jury confusion from two different legal theories
1. (this can be overcome with special verdict forms)
3. when do state law claims predominate?
a. the bulk of the remedy/damages is based on state law claims
b. most of the evidence/proof that has to be presented at trial relates to the state law
c. state law claim is going to take most of the court’s time in deciding
d. (not decided by comparing the number of state and fed claims)
iv. Supplemental J over P’s who don’t independently satisfy amount in controversy
1. Allapattah
a. text gives court supplemental J over “all other claims that are so related . . .”
b. rejected arguments
i. indivisibility theory: case rises or falls as a whole—each must independently
ii. contamination theory: inclusion of claim or party over which ct. doesn’t have
original J contaminates every other claim in the complaint
1. this makes sense when adding non-diverse parties: purpose of
diversity is to prevent discrimination when opponents are from
different states
a. court doesn’t decide whether adding non-diverse P’s is ever
allowed, but the rationale would seem to preclude
supplemental J over P’s when it would destroy diversity
i. doesn’t the text of 1367 preclude this?
2. doesn’t make sense in context of adding Ps w/ claims that don’t
independently satisfy amount in controversy
a. once a single claim is above the threshold, the purpose of
amount in controversy requirement is satisfied (making sure
that the case is substantial)
i. 28 USC 1441: when removal is appropriate/available
1. must be case over which dist. ct. would have original J (P could have brought the case in dist. ct.)
2. only D can remove (P already made their choice as to where to bring suit)
3. remove to district court where the action is pending (can’t remove to a different district)
4. if SMJ would be based on diversity, D can’t remove if D is a citizen of the state where suit was
a. but if SMJ is based on federal question, D can remove even if he is a citizen of the state
5. D has 30 days from time of receiving summons/becomes a party to move to remove
a. Or 30 days from the time it becomes apparent that there is ground for removal
i. P might not have indicated in the pleadings that amount in controversy would
be satisfied b/c P wasn’t thinking about qualifying for fed SMJ
6. court will rely on P complaint to determine if amount in controversy is satisfied
a. when it’s not clear from the complaint
i. some courts will deny removal
ii. others will look to D’s motion for removal
iii. others will look to any evidence it has before it
7. after removal, dist. ct. can assess whether it has SMJ; may decide to remand back to state court
ii. 1441(c) supplemental J provision, applicable when original SMJ is based on fed Q
1. when SMJ is based on fed Q, authorizes dist. ct. to hear separate and independent claims upon
2. in its discretion, ct. can remand “all matters in which state law predominates”
a. Borough of West Mifflin: all matters = all cases, not claims
i. 1441(c) doesn’t give authority to separate the suit and remand state-based
ii. 1441(c) doesn’t apply when claims are part of common nucleus of operative
fact, even if there are some that are state claims and some that are federal
1. 1367 governs authority to hear claims that don’t qualify for original
SMJ, but are part of the same nucleus of operative facts as claims that
do independently qualify for original SMJ
2. 1367(c) doesn’t authorize sending the whole case back
a. authorizes ct. in its discretion to refuse to exercise
supplemental J over claims over which it doesn’t have original
SMJ, not claims over which it does have original SMJ
b. dist. ct. could decide not to hear state claims upon removal if
they substantially predominate over the fed claims
iii. relationship between 1441 and 1367
1. 1441 authorizes removal, 1367 doesn’t talk about it
2. both give authority for exercise of supplemental J
a. 1441: fed Q plus separate and independent claims
i. question of constitutionality—may not be the same Art III “case” if claims are
separate and independent
ii. Is this only in context of removal? Can you use 1441 supplemental J in any
other context?
b. 1367: common nucleus of operative facts
c. no overlap in supplemental J: either claims are going to be separate/independent or
common nucleus
a. not focused on authority, but on convenience
b. generally governed by statute, but common law doctrines come into play
c. 1391 is the general fed venue statute
i. (a) and (b) designate where venue is appropriate in certain types of suits, depending on grounds for SMJ
1. (a): actions where SMJ is founded solely on diversity, venue is appropriate only in a DISTRICT
a. where any D resides if all D’s reside in the same state
b. where substantial portion of the events giving rise to claim took place, or substantial
part of property that is the subject of the action is situated
c. if can’t bring suit in either of the above, where personal J is satisfied for any D
i. (maybe you can’t bring it because all D’s don’t reside in the same state or
because place where events took place . . .
2. (b): actions where SMJ is not founded solely on diversity, venue appropriate only in a DISTRICT
a. where any D resides if all D’s reside in the same state
b. where substantial portion of the events giving rise to claim took place, or substantial
part of property that is the subject of the action is situated
c. if neither of the above works, where any D may be found
i. personal J always satisfied where D may be found?
3. “reside” for purposes of venue (for individuals)
a. some courts: residence is domicile (citizenship for diversity purposes)
i. pro: same standard applies for SMJ and venue questions
ii. con: if you live in one place, but domicile is someplace else, you have to travel
to litigate
b. others: where you are living, not official domicile
4. (c): residence for corporations
a. in any judicial district in which it is subject to personal J
i. must have minimum contacts with the DISTRICT
ii. possible for corp. to have sufficient minimum contacts w/ the state as a whole
for personal J in the state, but not with any particular district w/in the state
1. in which case, venue is appropriate where corp. has the most
significant contacts
a. (greater number of significant contacts or contacts that are
most significant?)
5. “substantial portion”
a. not MOST substantial portion or majority of the events, just substantial portion
b. doesn’t have to be the best venue, just appropriate
6. event giving rise
a. Bates: there wouldn’t have been a suit if D in NY hadn’t received the letter that was
forwarded from PA (was D subject to personal J in NY because of foreseeability of being
haled into court? Purposeful availment? Effects test?)
1404: venue transfer:
i. (a): for convenience of parties and witnesses, in the interests of justice, dist. ct. can transfer to a forum
where the case “might have been brought”
1. might have been brought
a. where P had the right to bring it at the outset
b. D can’t get transfer to anywhere they want by waiving personal J and venue defenses
i. it’s true that if D does this, then P could have brought the suit there
ii. but P wouldn’t have the right to bring it there absent D waiver
iii. otherwise, D could choose any forum (subject to the limitation that the dist. ct.
can’t transfer there if it’s not in accord w/ convenience/justice)
ii. law of transferring state will follow with the transfer
1. Ferens: P injured in PA, sues in MS b/c statute had run in PA, but not MS; P moves to transfer to
PA; MS law applies in PA
a. scotus: because transfer is about convenience; transfer shouldn’t affect the substantive
resolution of the case
b. not such a bad outcome b/c P would have been able to recover in MS; now, it’s just
more convenient
2. but when SMJ is based on fed Q, the trend is away from making the laws of the transferor circuit
follow the transfer
1406: when suit is brought where venue is not appropriate
i. ct. can dismiss
ii. or, if in interests of justice, transfer to place where it could have been brought
1. may be in interest of justice if P made good faith effort to bring in proper forum before running
of statute, but now it has run and it would end P’s case if it was dismissed rather than transferred
iii. can transfer even if there wasn’t personal J over D in the forum where suit was brought
1. objection: allows P to sue in the wrong place and have the court decide where the proper forum
2. law will be that of the transferee
Forum non conveniens (common law doctrine):
i. should the case be dismissed b/c forum not convenient (use when can’t transfer to a proper form)
ii. when is it applicable?
1. not in transfer btwn fed courts b/c 1404 addresses this
2. when the alternate forum is foreign country or different state (UT state court can’t transfer case
to NV state court, but can dismiss so that P will bring suit in NV, may require that D’s waive
defenses to being subject to NV state court J)
iii. threshold question: is there an alternative forum where the suit can be resolved
iv. court may require that D’s waive defenses to being subject to suit in the alternate forum
v. presume that P’s choice should prevail (no dismissal) unless factors point to dismissing
private interests
a. is the law less favorable in the alternative forum?
i. not given much weight
1. it would be hard to do a comparative study of the laws to make this
determination, which undermines the convenience
2. P has to do the work to decide what governing law will be best for
them; presumably, the chosen forum is already one that has law
favorable to P
b. access to evidence
c. can you compel unwilling witnesses/parties to appear
d. where are the parties and interests located?
e. would it be helpful for judge/jury to have access to the premises involved in the dispute
f. will judgment be enforceable?
public interests
a. congestion in courts
b. burden on jury who has little interest in the outcome of a case not related to their
c. local interest in the outcome of the case
d. familiarity of the court with governing law
e. risk of jury confusion having to apply different sets of law
a. jurisdictional requirements must still be satisfied
b. rule 18: joinder of claims
i. party asserting claim, counterclaim, crossclaim, third-party claim can join as many claims as it has against
an opposing party
1. don’t need to arise from same transaction/occurrence
ii. not required to combine claims (but claim/issue preclusion may bar future actions if you don’t bring them
in the original suit)
c. rule 13: counterclaims/crossclaims
i. (a): compulsory: pleading must make any claim it has against an opposing party if the claim
1. arises out of transaction/occurrence that is the subject matter of the opposing party’s claim
2. exceptions
a. don’t have to assert counterclaim if it require adding another party over whom the
court cannot acquire J
b. if the claim was subject of another pending action
c. authority of court over party based on attachment of property that didn’t establish
personal J
3. “same transaction or occurrence” = logically related
a. broad, leads to more compulsory counterclaims, more resolution in single case
b. but can be harsh against D b/c if claim is compulsory, D loses ability to bring suit on that
claim later on
c. example of application of “logically related”
i. same parties, same type of work
ii. payments not divided btwn the two contracts
iii. single insurance policy covered both contracts
iv. same legal questions, issues to be resolved, common evidence
4. will 1367 always authorize supplemental J over counterclaims?
a. compulsory counterclaims likely to qualify for supplemental J
i. “common nucleus of operative fact” may not fully overlap with “logically
related,” but there is a good argument that they do
permissive counterclaims won’t qualify for supplemental J (so they would need an
independent basis for SMJ)
i. they permissive b/c they aren’t transactionally related—not part of same Art III
case/common nucleus of operative fact
ii. some courts have found that permissive counterclaims would qualify for
supplemental J (or is it SMJ?)
ii. (b): permissive: you can make counterclaim any claim that is not compulsory (not transactionally related)
iii. (c): relief sought in counterclaim is not limited by relief that P is seeking against D (can be different
type/amount of remedy)
iv. (g): crossclaims: allowed if transactionally related to original action or counterclaim and against a co-party
1. can be a claim asserting that coparty is or may be liable to crossclaimant for all or part of claim
asserted in the action against crossclaimant
2. P can bring crossclaim against co-P only if P is facing counterclaim (and if the crossclaim is
transactionally related to the counterclaim that P is facing)
3. no such thing as compulsory cross-claim; why?
a. preserve D ability to choose where to bring suit against co-D’s—don’t make D’s suit
subject to P’s choice of venue
b. sensitivity to P: don’t want to require gumming up of P law suit by disputes among D’s
4. D can bring counterclaims against crossclaiming co-D, so it can get complicated
a. does D have to bring all transactionally-related counterclaims to co-D crossclaim?
5. crossclaims are likely to qualify for supplemental J—transactionally related is likely to be part of
the same constitutional case
v. (h): counterclaim/crossclaim can involve joinder of parties, which will be governed by rules 19 and 20
Joinder of parties
i. rule 20: permissive joinder
1. (a)(1): P’s can sue together if
a. P claims arise out of same transaction/occurrence or series of transactions/occurrences
b. AND P claims have common question of law or fact
c. no requirement that Ps claim same type/amount of relief
2. court may order separate trials to protect party against embarrassment, delay, expense, other
prejudice that arises from including a person against whom the party asserts no claim and who
asserts no claim against the party
a. discretionary
3. not required that each claim of each P be transactionally related, just that each P have A claim
that is transactionally related and has common issue of law/fact
a. if rule 20 is satisfied, P can join and then assert any claims under rule 18
4. (a)(2): D’s can be joined in one action as D’s if
a. any right to relief is asserted against them jointly, severally
b. or if claims against D’s arise out of same transaction/occurrence/series of trans/occur
c. AND any question of law or fact common to all Ds will arise in the action
5. relationship between “transactional relationship” and “common Q of law or fact”
a. generally, when transactional relationship is satisfied, there will be common questions
of law or fact, but not always
i. same incident may give rise to P1 contract claim and P2 tort claim
6. in applying “logical relationship” test, court can take into account policies behind joinder
a. convenience, efficiency
ii. rule 19: compulsory joinder of parties
1. (a) persons required to be joined if feasible
a. person subject to service of process and whose joinder will not deprive the court of SMJ
must be joined as party if
i. in that person’s absence, the court can’t accord complete relief among existing
ii. or that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person’s absence may
1. as a practical matter impair or impede person’s ability to protect the
2. or leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the
2. (b): what to do w/ the suit if person required to be joined if feasible can’t be joined (b/c would
ruin SMJ, for instance)
a. court must determine whether, in equity and good conscience, the action should
proceed among the existing parties or should be dismissed; factors:
i. extent to which judgment rendered in person’s absence might prejudice that
person or the existing parties
ii. extent to which any prejudice could be lessened or avoided by
1. protective provisions in the judgment
2. shaping relief
3. other measures
iii. whether judgment rendered in the person’s absence would be adequate
iv. whether P would have an adequate remedy if the action were dismissed for
3. Patterson
4. the practice memo
5. motion for dismissal for nonjoinder of party to be joined if feasible should be raised early on in a
rule 12 motion or answer
a. if you wait to try and bring in co-D, you run the risk of the Patterson situation, where the
P’s interest becomes greater b/c a judgment has been entered in their favor and
efficiency considerations point toward letting the decision remain final
iii. rule 14: impleader joinder: when D may bring in a 3rd party
1. D may sue non-party who may be liable for judgment against D
2. can only implead non-party to shift liability/indemnify, not to assert a claim of liability to D
against the non-party
3. entirely optional on part of D
4. impleaded D becomes regular D from then on
a. required to assert compulsory counterclaims
b. impleaded D can raise defenses that original D has against P claims in order to protect it
own interests
c. also has opportunity to assert transactionally-related claims against P, and P can assert
transactionally-related claims against impleaded D, but doesn’t have to
i. but P can’t bring claims against impleaded D if it would destroy diversity
1. can impleaded D bring claims against P if non-diverse?
5. D can’t implead non-party in order to assert that the non-party is liable to P, only to D
6. why allow impleading before resolution of the suit?
a. gives impleaded D opportunity to make sure that proper defense is made against P’s
b. efficiency: original D would have to wait for judgment in first case and then bring a
separate suit
iv. intervention: non-party moving to be added to suit
1. pro/con
a. pro: allows non-party to protect their interests
con: interferes w/ P control of the suit
courts will balance these concerns
i. will there be prejudice to parties by allowing the non-party in?
ii. are we going to prejudice the non-party by not allowing them in?
rule 24
a. (a): intervention of right (but with some court discretion)
i. (1) must be allowed to intervene if statute gives party right to intervene
1. ex: statute allows US to intervene in cases where constitutionality of a
statute is in question
ii. (2) must permit any party to intervene who:
1. claims interest in the subject matter or property involved in the action
2. is situated such that interest will be practically impaired w/o
3. unless interest is adequately represented by the existing parties
iii. is there an interest?
1. look at policies behind joinder: convenience, efficiency, prejudice
2. policy judgments influence whether we conclude there is an interest
iv. practical impairment of interest
1. don’t have to conclude that party seeking to intervene would be
subject to issue/claim preclusion, just that there is practical
impairment of an interest
2. could be indirect: non-party’s interests will be harmed if the decision
of the case establishes a precedent that would harm me
a. though this wouldn’t usually be enough
v. lack of adequate representation by existing parties
1. examples
a. party and non-party are antagonists
b. interest was not represented at all
c. collusion among parties
d. current parties are mishandling the case (would have to be
2. adequate representation can exist even when the
motivations/interests are different in nature
a. govt entity may be sufficiently motivated to bring defenses
and put forth best case that would also protect economic
interests of private non-parties
vi. even with intervention of right, court may not allow you to intervene as full P
or full D, may only be able to intervene as to certain aspects of the case that
affect your interests
1. party may move to intervene only partially
b. (b): permissive intervention:
i. court may permit anyone to intervene who
1. is given conditional right to intervene by statute
2. has claim or defense that shares w/ the main action a common
question of law or fact
a. (no transactional relationship required)
ii. court will balance prejudice to party seeking to be allowed if not allowed
against prejudice to present parties if allowed
iii. may be a problem if you move to intervene too late
1. case by case factoring in policies behind joinder
iv. don’t get to intervene if you cause SMJ problems
1367(b): P can’t sue intervening party, nor can party seeking to
intervene join as P if doing so would destroy diversity
rule 42(a): consolidation
i. actions before the court involve common question of law or fact
1. (no requirement for transactional relationship)
a. so can P get around requirements of rule 20 by bringing separate suits and then moving
for consolidation?
i. maybe, but the court has discretion, so may refuse to consolidate
f. discretion for courts to counteract/deal with liberal joinder rules
i. rule 21:
1. misjoinder of parties is not a ground for dismissing an action
2. on its own or on motion, court can sever claims or drop a party
3. common: suit is brought in diversity and one joined party is not diverse—court can drop the nondiverse party
ii. rule 42 (b):
1. for convenience, to avoid prejudice, expedite and economize court may order separate trial of
one or more separate issues, claims, crossclaims, counterclaims, or third-party claims
2. most common reason for doing this:
a. if jury sees evidence of damages (grisly pictures or something), jury may be prejudiced
against D on question of liability
i. can order trial on liability and separate trial on damages
ii. may increase efficiency: of jury finds no liability, don’t have to litigate damages
a. pleadings no longer used to narrow issues, as they did in the common law
i. pro: we don’t disallow meritorious claims prematurely; sometimes P can’t make a strong case until some
discovery has been done
ii. con: we allow fishing, P will file suit and push for settlement; D may give in to avoid onerous discovery
1. allow non-meritorious claims to go forward
b. what pleadings can be filed?
i. rule 7: as a matter of course, only two pleadings: complaint and answer
1. court may allow P to file reply to answer
c. rule 8(a): requirements for complaint
i. 8(a): Pleading must contain
1. short and plain statement of grounds for J
2. short and plain statement of the claim showing that pleader is entitled to relief
3. demand for relief sought, which may include relief in the alternative or different types of relief
ii. essentially, just putting D on notice as to what the case is about
1. not identifying all the important facts/issues
iii. showing entitlement to releif
1. D can make motion to dismiss for failure to state a claim in rule 12 motion
2. Conley: detailed factual statements not required
a. won’t dismiss P’s claim unless there is no set of facts that P can prove to support the
b. very unlikely to get dismissal under this standard
c. Twombly changed the standard
3. Twombly
a. must plead facts that show that it is plausible that P can prove facts to support the claim
i. different from Conley, in that there all that was required was a possibility
ii. court claims that the plausibility standard is consistent w/ requirements of rule
8 b/c it requires P to make a showing; plausibility standard is giving effect to
the “showing” requirement
iii. “plausible” = more than possible, less than probable; reasonable expectation
4. Iqbal: plausibility standard isn’t only applicable in anti-trust situations; applies generally
5. applying plausibility standard:
a. ID the elements P is required to prove to get relief
i. need to do this to determine if P has made allegations that constitute a claim
b. separate out/identify the factual allegations
i. assume the factual allegations to be true
1. don’t assume these to be true:
a. legal conclusions
b. formulaic recitations
i. i.e. saying: D had duty, he breached the duty, it
caused X
c. bare allegations
i. does this conflict with rule 9?
ii. malice, intent, knowledge, state of mind may be
alleged generally
c. apply plausibility standards: assuming the fact to be true, is it plausible that P can make
out a claim?
iv. demand for relief
1. can claim in the alternative, can claim different types of damages
2. this is critical for purposes of default judgment rule 54
a. in default judgment, P won’t get any type/amount of relief other than what is in the
b. in contrast, in final judgment, P gets relief they are entitled to, even if it’s not in the
rule 9: things that don’t need to be pleaded, and those than need to be pleaded to a higher standard
i. (a): don’t have to allege that the party has capacity to sue or be sued, that a party can be sued as a
representative of someone else, or that an organization is a legal entity
1. other party can raise these issues if they need to be addressed
ii. (b): must allege fraud/mistake with particularity the circumstances constituting fraud or mistake
1. why?
a. it’s too easy to allege fraud
b. mere allegation of fraud can damage someone
c. fraud can cover a lot of different types of behavior, so you have to allege w/
particularity to put D on notice as to what he’s accused of
2. is this higher than Iqbal general pleading requirements? Not much, if at all.
iii. (g): special damages: must be specifically stated if you are seeking special damages (things that don’t
naturally result from the thing that happened—eggshell plaintiff)
1. D shouldn’t be surprised at trial by the types of damages being sought
rule 8(d): pleading in the alternative/hypothetically
i. in the alternative: you can say D published statement or D caused statement to be published
ii. hypothetically: I didn’t make the statement, but if I did it was true, and even if it wasn’t true . . .
i. 12(a): first option is to file an answer within 21 days of being served (or 60 days if you waive service of
1. can request extension of time
ii. 12(b): or you can file a motion before answer
litigation may not need to go forward if there isn’t jurisdiction or if complaint doesn’t state a
if you file motion, don’t have to answer until motions are resolved
failure to include defenses of lack of personal J, insufficient process, insufficient service of
process, improper venue in a 12(b) motion constitutes waiver of those defenses
a. not true of lack of SMJ, failure to state a claim, or failure to join party under rule 19
i. why leave open defense of failure to state a claim?
1. shouldn’t have to proceed through litigation when there isn’t a claim
with all motions except 12(b)(6) (failure to state a claim), evidence may be presented to support
the motion
a. 12b6 motion must be converted to request for summary judgment if evidence is
submitted in support of the motion
iii. Answer
1. 8(b): must include D’s defenses to each claim asserted against it
a. three options:
i. admit
ii. deny
iii. claim that you lack knowledge/information sufficient to form belief about the
truth of an allegation
1. can’t use this if the facts are in the public record or is something the
party should know
b. if deny or claim lack of knowledge, issue remains open
c. if admit, then no need to do discovery on the allegation
i. D may admit even if they could deny just to avoid discovery
d. denial
i. 8(b)(2): must fairly respond to the substance of the allegation
1. if allegation is that D kicked, scratched, and spit, and D wants to deny
that he spit, he can’t deny the allegation generally, but must admit to
kicking and scratching, but deny spitting.
ii. possible to issue general denial of the whole complaint, but difficult
iii. if fail to deny properly, you are deemed to have admitted
1. but there is opportunity to amend
2. may make a catchall denial to things not admitted
2. 8(c)(1): affirmatively state any avoidance or affirmative defense
3. P reply to answer: you only get this if the court orders it (7(a)), so if this is not filed, allegations in
D answer are deemed denied
other motions
i. 12(c): motion for judgment on the pleadings
1. look at complaint and answer, in contrast to 12b6, which just looks at the complaint
2. D may admit a crucial fact so judgment can be rendered w/o trial
ii. 12(e): motion for more definite statement: clarify what is actually being alleged
1. rarely granted
iii. 12(f): motion to strike
1. move to have material that is scandalous, embarrassing, etc. to be struck
2. rare and unlikely to be granted
3. but if allegation isn’t necessary to the complaint, the motion can be used to get it out of the
public record
4. can also have insufficient defense, redundant, immaterial, or impertinent matter struck
amendment—rule 15
i. (a)(1): amendment as of right
1. can amend once as a matter of course
within 21 days of service of your pleading
P can amend within 21 days of D filing of rule 12 motion or answer
i. D can amend answer w/in 21 days of P filing reply to answer
ii. answer/motion may point out problem in the complaint, which P can fix by
amendment—handle that problem before going forward
ii. (a)(2): permissive amendment
1. if time has passed and amendment as of right is no longer an option, still allowed to amend if
a. you have written consent of opponent
b. court approves
i. court should freely give leave to amend when justice so requires
1. Aquaslide factors (D was allowed to amend long after admitting that it
was the manufacturer (and after P’s statute of limitations had run))
a. bad faith on part of amending party?
b. prejudice?
c. undue delay?
d. will allowing to amend be productive
e. has party been given opportunities to amend and not done it
f. presumption is in favor of amendment
i. preference is to resolve issues on the merits, not on
problems with the pleadings
iii. (b): amendment sough during or after trial
1. party introducing evidence relating to issue not in the pleadings, other party objects
a. court should freely permit an amendment when doing so will allow court to address the
merits and where the objecting party fails to show prejudice
i. prejudice might be shown
1. by showing that the statute of limitations has run on the issue
2. showing that more discovery would be required to allow full defense
of the issue
a. court may grant more time, allow more discovery
b. or may not allow it
b. (b)(2): if other party doesn’t object, you don’t have to amend the pleadings—the trial
goes forward as if the pleadings had been amended
i. but provides for formal amendment: party may request that the pleadings be
amended to reflect what was done at trial
1. creates record for appeal
2. makes more clear what was litigated in the case for claim/issue
preclusion purposes
iv. 15(c): if statute has run and P wants to amend the pleading, amendment can relate back to original filing
date when
1. law that provides the statute of limitations allows relation back
2. amendments asserts claim or defense that is transactionally related to what was raised in
original pleading
a. rationale: statute of limitations purpose is to get party to bring suit forward quickly; if P
already brought claims on the underlying transaction, there is no reason to bar an
amended claim
b. example: bring breach of contract claim arising from the same event that is the basis of
the original tort claims
3. amendment changes the party or naming of a party against whom claim is asserted;
a. requirements
i. notice to the non-party w/in period provided under service rules (within 120
days—of what?)
ii. non-party must have had such notice of the suit that it won’t be prejudiced in
defending on the merits
1. can be a problem if depositions went forward w/o opportunity to
examine witnesses, or deposed witnesses are not available
iii. non-party knew or should have known that the action would have been
brought against them if it wasn’t for a mistake
b. this is very restrictive—not often going to allow amendments to bring in a new party
after the statute has run
15(d): supplemental pleadings
a. court may permit party to serve supplemental pleading setting out
transaction/occurrence/event that happened after the date of the pleading to be
i. may add allegations of things that have happened: D failed to pay rent again
ii. may be allowed even if original pleading is defective
SANCTIONS (rule 11)
a. pros/cons
i. pro: notice pleading allows a lot of junk into the courts; possibility of sanctions can reduce that
ii. con: possible chilling effect on certain types of litigation, especially civil rights—need to make room for
attorneys to take unpopular positions/advocate for changes in the law
b. scope:
i. applies to papers filed with court
ii. arguments before the court
iii. not things filed in the discovery process
c. 11(b): by presenting to court a pleading, motion, paper, advocacy thereof, attorney certifies that to best of
person’s knowledge, formed after an inquiry reasonable under the circumstances
i. not being presented for improper purpose (harass, increase litigation costs)
ii. the claims, defenses, legal contentions are warranted by existing law or by a non-frivolous argument for
extending, modifying, or reversing existing law or for establishing new law
1. not requiring subjective good faith, just objectively a non-frivolous basis for the argument
iii. the factual contentions have evidentiary support or will likely have evidentiary support after reasonable
opportunity for further investigation/discovery
iv. the denials of factual contentions are warranted on the evidence or are reasonably based on belief or lack
of information
d. procedure for imposing sanctions (must be notice and opportunity to be heard):
i. motion by opponent
1. must be separate motion, on its own
2. must ID specific conduct of which you are complaining
3. must respect the 21 day safe harbor period
a. take motion paper and serve it on the opponent, don’t file it with the court
b. wait 21 days for opponent to look at motion
i. opportunity to withdraw the paper submitted or correct a misrepresentation
c. only if opponent doesn’t rectify the situation do you file with the court
ii. sua sponte—court’s own initiative
1. court issues show cause order that ID’s specific conduct at issue, which puts onus on person to
show why court shouldn’t impose sanctions based on violation of 11(b)
2. many courts reserve sua sponte sanctions for behavior that would warrant contempt
e. nature of sanctions
i. purpose is to deter, not to compensate for injury caused by rule 11(b) violation
ii. court can award expenses that party incurred in pursuing the sanction
iii. actual sanction imposed is sanction sufficient to deter
1. this can involve compensation if court decides that is what is required for deterrence
2. can be order to circulate the ruling of sanctions among lawyers in your firm
3. disbarment
iv. monetary sanctions can’t be imposed on client for attorney’s advocating position for which there is no
non-frivolous legal argument—these can only be imposed on the attorney
f. reasonable inquiry under the circumstances
i. can be reasonable to rely on client’s representations
ii. if you have less time to investigate, less inquiry is required
iii. if evidence is in opponent’s control, less requirement
iv. reason to doubt client’s representation?
v. case-by-case, look at all the circumstances
vi. if there is support in the record for the representation, don’t need to judge adequacy of attorney’s
g. other bases for sanctions
i. by statute, pleadings submitted by prisoners get higher scrutiny to avoid abuse of process
ii. party litigating in a way meant to increase costs of litigation
iii. courts have inherent power to impose sanctions
1. criticism: this allows courts to circumvent the rule 11 limitations on sanctions
a. Round-up
i. Is there a FRCP or federal statute that governs the issue?
1. Walker: just look at plain meaning, don’t adopt any presumption as to whether or not the fed
rule/statute governs the issue
2. Gasperini: majority indicates that court may read fed rule/statute narrowly, with sensitivity to
state policy/regulatory interests
3. Shady Grove: seems to return to the plain meaning approach (though there are four that adopt
the Gasperini approach
ii. if there is a FRCP or fed statute that governs the issue:
1. is FRCP rationally capable of being classified as procedural?
a. if so, then it fits w/in Constitutional authorization
2. does the FRCP conform to rules enabling act (can’t abridge/enlarge/modify substantive rights)
a. if it really regulates procedure, then it conforms to rules enabling act (incidental effects
on substantive rights are permissible)
i. but Stevens in Shady Grove: really regulates only goes toward answering if it is
a procedural rule; doesn’t tell us whether it abridges, etc. substantive rights
1. need to look and see if it’s bound up w/ state regime of substantive
2. nobody else in Shady Grove joins this, so 8 justices would follow really
regulates standard
b. early on, it was presumed that a rule would meet the standards of constitutionality and
rules enabling act, partly b/c these aren’t high bars, but also b/c of the process by which
the rules are made involves scotus
i. Shady Grove majority doesn’t mention the presumption, so there’s a question
as to whether or not there is a formal presumption
ii. but even w/o the formal presumption, it’s likely that a FRCP will meet the
3. if a fed statute governs the issue, just need to ask if it is rationally capable of being classified as a
procedural regulation (is it Constitutional?)
don’t need to ask if it conforms to rules enabling act b/c that question goes toward
whether a FRCP was enacted pursuant to Cong authority; when it’s a statute, it is per se
within Cong authority to enact
iii. if there isn’t a FRCP or fed statute that governs the issue, must look to see if fed practice can nevertheless
be followed
1. is the state law/practice substantive or procedural?
a. substantive if it’s outcome determinative in a way that would lead to forum shopping or
discrimination against in-state parties
i. if state law provision not outcome determinative in this way, then fed practice
can be applied
ii. if state law provision is outcome determinative in this way, then state law will
be applied unless
1. it interferes w/ an essential characteristic of federal court system
a. if it interferes, first try to accommodate the two approaches;
may not be able to fully apply state law, but can try to mesh
the two approaches (Gasperini)
b. if accommodation isn’t possible and you have an either/or
choice (as in Byrd—either judge or jury) then balance
i. outcome of outcome determinative analysis against
the federal interest in the case
b. 28 USC 1652: rules of decision act
i. laws of several states shall be regarded as rules of decision in civil actions in the courts of the US in cases
where they apply
c. Swift: laws of several states = state statutes and judicial interpretations thereof, plus matters of local law
i. excludes “general law”: idealist natural law stuff, including contracts/commercial law
d. Erie: fed courts have to apply state substantive law, regardless of whether it was created by statute or judicial
i. substantive law excludes procedural rules; feds can apply fed procedure
e. York: outcome determinative test to determine what is substantive and what is procedural
f. Byrd: bound up test: state law will apply when a state practice/rule is bound up with substantive law and rights
i. if not bound up, use outcome determinative test
1. (bound up question seems to have gone dormant—Gasperini, Shady Grove did not use it)
ii. but if it is outcome determinative and it goes against essential characteristic of fed courts, then must take
into account the federal interest
g. 28 USC 2072: rules enabling act
i. scotus can prescribe general rules of practice an procedure in fed courts
ii. rules shall not abridge, enlarge, or modify any substantive right
h. Hanna: outcome determinative test alone doesn’t answer the question of substantive/procedural; test is whether
it’s outcome determinative in a way that would lead to forum shopping or discrimination against in-state parties
i. also looks at rules enabling act
1. constitutional question: is fed rule rationally capable of being classified as procedural
2. statutory question: does the provision really regulate procedure (incidental effect on substantive
rights is permissible)
i. Stewart: federal statute can also govern fed procedure, not just FRCP
j. Gasperini: accommodate federal and state practice when possible
k. Shady Grove:
a. summary judgment
i. latest you can file is 30 days after discovery has ended
ii. 56(a) authorizes the motion
1. any party can move for summary judgment
ID each claim/defense or part of each claim/defense on which they seek summary judgment
a. can narrow issues with partial summary judgment
iii. 56(c)(1): supporting your factual positions
1. support assertion by:
a. site evidence in depositions, affidavits, documents, admissions, interrogatory answers
iv. View in the light most favorable to the non-moving party
1. If no reasonable jury could differ in their findings, there is no question of material fact – if
reasonable juries could differ, you have to give it to the jury
a. scope:
i. historically
1. could only discover wrt issues you raise, not opposing party
2. couldn’t get inadmissible info
ii. current: rule 26(b)(1)
1. can discover non-privileged matter that relates to any party’s claims or defenses
a. can include discovery designed to help you ID evidence (names of witnesses, etc.)
2. relevant info need not be admissible at trial if it is reasonably calculated to lead to discovery of
admissible evidence
a. Lindenberger
3. for good cause, court may order discovery relevant to subject matter of the suit
a. not clear how this is different from matter that relates to claims/defenses, but it is
apparently broader
iii. limitations
1. discretionary
a. 26(b)(2)(a): court may alter limits on number of depositions and interrogatories or on
length of depositions
b. 26(c): protective orders
i. party facing discovery may move for protective order
1. must certify that you have already discussed this with the opponent
and tried to resolve it
ii. court may for good cause issue order to protect party/person from annoyance,
embarrassment, oppression, undue burden or expense
2. mandatory
a. 26(b)(2)(c): court must limit frequency or extent of discovery that would otherwise be
allowed if:
i. discovery sought is unreasonably duplicative/cumulative or can be obtained
through less burdensome means
ii. party seeking discovery has already had ample opportunity to obtain the info
by discovery
iii. burden or expense of the proposed discovery outweighs its likely benefit
1. the needs of the case
2. the amount in controversy
3. the parties’ resources
4. the importance of the issues at stake in the action
5. the importance of the discovery in resolving the issues
3. options in protective orders
a. review documents in camera
b. redact documents
c. sequence the discovery—order least sensitive discovery first and see if that solves
anything/is productive
iv. courts may be influenced in discovery disputes based on how reasonable it believes the parties are being
in their disputing the discovery requests
1. if you’re being too strident/not conceding anything, the court may decide against you
privileged matter
i. relationships:
1. attorney-client; doctor-patient; husband-wife; priest-peninent
ii. 26(b)(3): trial preparation materials (work product)
1. attorneys should be free to write/think things through
2. documents/tangible things produced in preparation by party or attorney/agent
a. notes, memos
b. can include investigation by insurance company
c. doesn’t mean that all facts included in those documents/tangible things are protected
i. client tells underlying facts and attorney makes notes/writes a memo
1. the notes/memo are protected
2. but the facts themselves are not protected
3. but can’t get at attorney’s impressions and thoughts as he/she
prepares for trial
3. not absolutely protected
a. may be discovered if otherwise discoverable under 26(b)(1) and the party seeking them
has substantial need for them
i. can’t get the necessary information through another means
b. 26b3B: but when the court allows discovery of work product, still protects attorney’s
impressions, legal theories, etc.—may redact or something else
c. good cause must be shown
i. maybe situation where witness is dead or unavailable, claims privilege against
self-incrimination, memory has faded—can’t get the info. w/o undue hardship
in any other way
iii. 26(b)(5): claiming privilege
1. must expressly make the claim that the withheld info is privileged—can’t just give everything else
asked for and hold back what is privileged
2. must describe what you are withholding in such a way that doesn’t disclose the info, but allows
other side to evaluate the claim of privilege
3. generally, person claiming privilege must create a log, itemizing what you are withholding and
rule 37: court can compel response to discovery request and impose sanctions
i. 37 (c) and (d): sanctions for failure to respond to discovery
1. c1: if party fails to provide info or ID witnesses that are mandatory to be disclosed, party may not
use that information/witness at trial
2. c2: failure to admit--you should have admitted upon a request for admission
a. have to pay costs incurred by the opposing party in having to prove that information
3. d: sanctions for failure to attend deposition or answer interrogatories/request for inspection
ii. 37(a)(1): party can ask for court order compelling other party to comply w/ discovery request
1. have to have tried to resolve the issue w/ opponent outside of court
2. specific motions
a. compel disclosure
b. compel a discovery response
iii. 37(b): sanction for failure to comply w/ discovery request/order of the court
1. 37(b)(2)(A):
a. most severe:
i. dismissal
ii. default judgment
iii. contempt
b. deem facts sought to be established as true
not exhaustive list; other possibilities:
i. fines without holding in contempt
ii. attorney’s fees
how discovery proceeds
i. pre-suit investigation
1. federal rules not available at this stage; no deposition, interrogatory, request for admission
a. exception: can engage in discovery to preserve information
i. you know witness is leaving the country, is on death bed
ii. can’t use this to engage in discovery to see if you can prove a claim
ii. once you file suit, you start to get access to the discovery process
iii. mandatory planning conference: no discovery until after conference
1. 26(f)(2): subjects discussed at conference
a. position you’re taking in the litigation
b. possibility of settlement
c. arrange for mandatory disclosure
d. talk about preservation of evidence
e. develop proposed discovery plan that you will submit to the court
2. 26(f)(3): submit discovery plan to court
3. sanctions for party who fails to participate in good faith to come up w/ discovery plan
mandatory disclosure—have to disclose even if not requested
i. 26(a)(1)(A): initial disclosures w/in 14 days of discovery conference
1. required disclosure
a. names, address, phone of potential witnesses and the subject matter of the info they
b. description of things, documents, tangible evidence in your control that you may use to
support your claims or defenses
i. not required to disclose things harmful to your side at this point
1. Cummings v. G.M.: in initial mandatory disclosure, don’t have to
disclose info you don’t intend to use
c. computation of each category of damages, including evidentiary support for the damage
i. this may encourage settlement
d. copy of any insurance policy that may be implicated by the litigation
i. helpful for settlement purposes: if small policy, may not make sense to
continue w/ the litigation
2. 26a1B: mandatory initial disclosures not required for certain types of suits
a. against admin. agency
b. other suits likely to involve pro se parties
i. habeas corpus, challenge conviction
3. can’t refuse to comply on the basis of not having completed investigation
a. give what you have, then supplement
4. can’t refuse to comply based on failure of opposing party to comply
ii. mandatory disclosure re experts 26(a)(2) (do these have to be done with initial disclosure?)
1. who is an expert?
a. someone retained to provide expert testimony, which is testimony based on specialized
2. two categories: those who will testify and those who will not
a. non-testifying experts
i. names/opinions of those who aren’t going to testify is protected work product
1. exceptions : exceptional circumstances making it so that it’s
impracticable for the other party to get the info that the expert
a. expert happens to be the only expert in the area
b. expert destroyed material in an experiment/test
b. 26(a)(2): testifying experts
i. those retained for the purposes of litigation
1. must disclose ID of any witness who is going to testify as an expert
2. must disclose report that expert has prepared and signed
a. opinions and reasons for them
b. data and info relied on
c. qualifications
d. summary/exhibits/figures
e. cases in which the expert has testified
f. compensation that the expert is receiving
3. important to give opponent opportunity to punch holes in witness
testimony, impeach expert, give jury opportunity to evaluate
4. also important to prepare for cross-examination—if you hear it for the
first time at trial, may not be ready to give good examination
5. gives opportunity to have your own witness prepare response/critique
of methodology
ii. those not retained for purposes of litigation (may be employee or doctor that
treated an injured person)
1. don’t have to prepare a report
2. need to disclose the subject matter on which they will testify and the
facts and opinions that they will proved
iii. deposition of experts allowed with limitations
iv. protect interest in being able to think feely while forming opinions
1. can’t discover draft reports or draft disclosures
2. can’t discover communications btwn attorney and expert
a. exceptions:
i. compensation
ii. facts/data that the attorney provided the expert
iii. assumptions that the attorney gave the expert and
the expert relied on
iii. pretrial disclosures
1. must file info w/ court about evidence that you will present
2. 26(a)(3): must disclose:
a. names and contact info of witnesses identified as those you expect to call and those you
may call if necessary
b. testimonies that you are going to present in the form of deposition
c. each document or other exhibit, including summaries of other evidence identified as
those you expect to use and those that you may use if necessary
3. must be done 30 days before tiral
4. sanction provision: precluded from using info that you should have disclosed but didn’t
methods/tools/mechanics of discovery
i. depositions
1. oral more common than deposition on written questions
2. broader in scope than would be allowed in courtroom
3. done w/o involvement of court generally
4. party requesting provides notice to other party as to when/where/who will be deposed
a. parties obligated to show up to be deposed
b. non-parties can’t be sanctioned for failure to show up for deposition unless they have
been subpoenaed
i. if you don’t subpoena non-party and deponent doesn’t show, you may have to
pay costs for opposing attorneys having showed up for deposition
5. party noticing the deposition can decide how it will be recorded (can be audio/video or just
6. allowed to notice an entity (like corporation) and specify the info you need; it is then the duty of
the entity to ID the person/people w/ the relevant info
7. limits:
a. each deposition only one day of 7 hours unless court order or stipulation by parties that
it can go longer than that
b. only 10 depositions per party
c. can only depose a person onece
you can get at inadmissible evidence in a deposition that is reasonably calculated to lead to
admission of admissible evidence
32(d) objections
a. objection to notice needs to be made before deposition takes place
b. objection to qualifications of officer, object before deposition or as soon as you become
aware of the problem
i. same if you object to the qualifications of the deponent
when deponent can be instructed not to answer
a. preserve a privilege
b. pursuant to court protective order putting certain info off limits
c. to give opportunity to file 30(d)(3) motion to terminate or limit the deposition
i. granted if
1. conducted in bad faith
2. or way that unreasonably annoys, embarrasses, or oppresses the
deponent or party
3. (very high standard; courts not anxious to limit depositions)
ii. basic rule: get to do this discovery even if we’re asking questions that
ultimately are not suitable for trial
after deposition, deponent has opportunity to review, and look at what he said and make
corrections (not all corrections will be allowed)
may use deposition to get deponent to authenticate documents
a. if party, don’t need to use subpoena to get them to bring the documents
b. if non-party, you would want to subpoena them
limiting depositions
a. court generally more protective of non-party interests in determining whether to issue
protective order
uses of depositions
a. helpful in allowing you to preserve testimony
b. allows you to see what deponent will say, observe their demeanor
c. rule 32: use of deposition at trial/hearing
i. use deposition against party who had sufficient notice of the deposition or was
there or was represented as long as it’s admissible under the rules of evidence
for live witnesses
1. don’t want to use them against party who didn’t have chance to affect
the record
ii. 32(a): can use for impeachment purposes when deponent changes story at trial
iii. can use for any purpose against a party or a party’s agent—the substance of
what they said
iv. can use when witnesses are unavailable (preservation function of depositions)
v. if opponent tries to introduce part of the deposition, but the part they
introduce is misleading, you can introduce more of the deposition to put it in
context and have it understood
i. can only be propounded on a party (in contrast to depositions)
ii. party is obligated to respond under oath within certain amount of time
iii. like deposition, generally occurs without court involvement
iv. sent by mail, returned by mail
v. rules limit, absent stipulation or court order, to 25 questions, including discrete sub-parts
1. no indication as to what constitutes a discrete sub-part
vi. most abused discovery device: questions can be very difficult/time-consuming to investigate and answer
vii. 33(b)(1): must answer interrogatory separately and fully, under oath
1. if you are an entity like a corporation, you have to respond with information available to
you/under your control
a. may require an investigation
b. may include info controlled by your subsidiary
c. can include information from a prior employee if corp. still has some control over him in
form of outstanding obligations corp. can refuse to pay if employee doesn’t comply and
provide the information
viii. 33(d): for questions that can be answered by examining business records and the burden of deriving the
answers would be the same for either party, you can answer by require the other party to look for
1. have to have a sense that the answer is going to be found there and it won’t be more
burdensome for that party than for you
ix. objections must be made with specificity
1. ex: question is overly broad/unduly burdensome
x. answers to interrogatories can be used in court
-why use the interrogatory instead of deposition
-you can require them to do an investigation, which you don't get with a deposition
-it's cheaper for the party propounding the interrogatory
-you are asking the question of the party--rather than doing 10 depositions to talk to employees of the
organization, you ask the
-answers filtered through attorney, take advantage of ambiguities in the question to avoid giving too much
information, can craft the answers to be responsive without being overly helpful
-don't get on-the-spot follow-up questions, although there is an opportunity for follow-up interrogatories
-can only be used as to parties (Delloite wouldn't have been able to be served w/ interrogatory)
mechanisms that can be used to get info that party or non-party has that doesn't have to
-to parties only
-limited to 25
-not as effective as deposition
-b/c not spontaneous, but filtered through attorney
-little opportunity for follow up
-one more . . .
-but pro:
-require to party, esp if corporation, to reply w/ information available to that party
-if info. is in the subsidiary, it is deemed available to the parent corp
-there are difficulties regarding what information is "available" to the party
-look at relationship between party and entity that has info to determine if the info is available
-extent to which can use interrogatory to get beyond just facts
-can include
-what is the legal basis of liability
-theory of the case
-how they perceive the law applying to the facts
-these are contention interrogatories
-what do you contend is the legal basis for liability
-what facts are you going to use to prove liability
-these can narrow the issues in dispute
-can allow party to assess their position--when you have to say this is the legal basis or these are
the facts, it may lead the party to realize that the claim doesn't have good factual support or is a
stretch of the law
-timing of contention interrogatory answers
-why sooner?
-why later?
-maybe early on, the case is in flux at that point, you don't want to be pinned down
In Re Convergent Technologies Securities Litigation
-it's not disputed that the interrogatories are appropriate, the dispute is only about the timing
-court adopts procedure
-the propounder submits a limited number
-the responding party looks at them and asks if the benefit of the early answer is outweighed by the
cost/prejudice to me; if it is, then it can object
-then propounding party can press court for an order to compel an early answer
-in this case, the party seeking the interrogatories is not going to be prejudiced by waiting a little longer
-the propounding party is in a good position to get a lot of the information at this time; the position they are in to
understand the underlying facts isn't problematic for them.
-preference is for postponing answers to contention interrogatories, but sometimes early response will be required
-duty to supplement extends to discovery responses, interrogatories, requests for admission--if something changes, you
have to update the opponent
-but no duty to supplement wrt depositions
Rule 36: request for admission--restricted to parties
-send written request to party, request that you admit the following . . .
-can request admission to facts, application of law to fact (employee was acting under scope of employment . . .)
-can request admission as to the authenticity of a document
-if party admits it, don't have to put in proof to establish a fact or legal conclusion
-once the party gets request, it has four options for response;
-admit that it is true; if admitted, it is deemed established for the purposes of the law suit
-there is opportunity to withdraw the admission, esp. if it's early on and it's not going to prejudice the
-also deemed to be established if you fail to respond to the request for admission
-deemed admitted only for the purposes of the present litigation--why?
-if parties know that they admit it may be used in unforeseen ways against them in the future, it
increases the potential cost of amitting, thus disincentivizing admissions
-if in the present case, it doesn't matter much whether or not the thing is true, it may not be worth it
to contest it, but it might matter in a future case where the point is important
-request for admission isn't very effective
-parties will deny if there is a possibility that it's not true, or if it's not clearly established
-if part of it is true, you need to admit the part that is true, not deny the whole thing
-state that you have made reasonable inquiry and based on info available, you can't admit or deny
-vague, ambiguous, seeking privileged information
-court can get involved if objection is inappropriate or the reply is otherwise objectionable
-sanctions for failure to admit rule 37
-if something denied is proved to be true at trial, court can impose on you the costs of the other party in proving it
at trial
-but this sanction doesn't have to be imposed if there was a plausible basis for denial
-also, as a practical matter, it's not always clear whether or not a jury has found a given fact to be true, when
there is a general verdict
-rule 34 governs production of evidence by parties
-w/o involvement of the court serve upon party request to produce and can ask for production and permission of
requesting party to inspect/copy/etc.
-electronic info. included
-access to land/property
-b: describe w/ reasonable particularity the things that you want to inspect
-not particularly stringent requirement for describing in particularity
-I want all the documents of your employees about X
-must be reasonable time, etc.,
-describe the form in which you want to receive it: electronically, etc.
-b2: response
-30 days to provide written response in which you either state an intention to reply or reject
-must either provide the documents in the way you use them in the ordinary course of business, or label
documents as to in what way/what question they respond to
-point here is to prevent party from putting responsive document in a haystack of nonresponsive
-for non-parties: rule 45
-essentially the same regime as for parties
-rather than just serve request, you serve a subpeona on the non-party
-options upon receiving the subpeona
-serve written objection to the subpeona, which makes the party go to court and get a motion to compel
-go to the court to get a modification or quashing of the supboena
-not reasonable time to reply
-requires person to travel too far
-requires disclosure of privileged party or otherwise represents an undue burden
-45b: court may quash/modify
-trade secret/confidential commercial information
-information from expert that they haven't retained
-substantial travel expenses
-can get 26 protective order--also available to non-parties
-if you do have to respond to the subpeona, your obligations are like those of parties; must produce them as you
use them or you can label the documents
-you can withhold protected/privileged/work product information
-e-discovery is a difficult issue
-it's a very expensive problem
-the volume of info we save; it's not easily eliminated; includes metadata; technology advances and method
of storage becomes obsolete
-specific e-discovery provisions in the rules
-generally, electronic data is discoverable like any other type of data
-when lawsuit is filed, there is first a need to preserve
-party may send out notice to employees that they need to keep the messages in their inboxes
-issue: when should we shift the cost of producing electronic data to the party that wants it
-Zubalake v. UBS
-emails at issue about the firing of an employee
-info was stored electronically
-P moves to compel D to produce emails
-some of the email is no backup tapes
-neither party contends that this doesn't fit within the scope of discovery, the issue is cost-shifting
-the outcome will depende on how accessible the info is
-if it's accessible, then producing party bears the costs
-if inaccessible, consider cost-shifting, require requesting party to pay the costs
-here: three forms:
-active email files: accessible, employer bears costs
-archived email on disks: accessible, employer bears costs
-emails stored on backup tapes: inaccessible
-what do we look at to decide if cost-shifting is appropriate
-extent to which the request is specifically tailored to discover relevant
-importance of the issues at stake in the litigation
-cost of production vs. amount in controversy
-cost of production vs. resources of party
-availability of info from other sources
-how substantial is the litigation
-is this different from how we look at proportionality of normal discovery?
-pretty much, just fleshes it out a little more
-court: employer has to provide emails from a sample of the backup tapes to see if it's unduly
burdensome to produce the requested emails
Summary Judgment
-after some discovery has taken place, there is no evidence to support a claim/defense, so don't go forward to waste
resources in litigation
-but doesn't have to take place after discovery
-latest you can file is 30 days after discovery has ended
-motion for summary judgment can narrow the issues
-judge making substantial decision without letting a jury make any judgments; just looking at papers, for the most
-revisions have come into effect
-56a authorizes the motion
-any party can move for summary judgment
-ID each claim/defense or part of each claim/defense on which they seek summary judgment
-so you can move for partial summary judgment to settle some issues, while leaving others for trial
-56c1: what do you do to support your factual positions
-must support assertion by:
-A: site evidence in depositions, affidavits, documents, admissions, interrogatory answers
-B: show that the materials the opponent has submitted don't establish support for particular fact
-opponent can't produce admissible evidence to support summary judgment
-how is this different from rule 12 motion to dismiss for failure to state a claim or for judgment on the pleadings
-motions on pleadings look only at the pleadings, no other evidence
-if any evidence is cosidered, the motion to dismiss on the pleadings must be converted into motion for summary
-responses to summary judgment movement by non-movement
-56d: we need more time to get more evidence
-must show specific reasons why you can't produce evidence to oppose the motion for summary judgment
-56c1: provide a response citing to evidence that supports your side or pointing out problems with their motion
-56e safety valve
-if party fails to address assertion of fact that the other party has raised, the court can give them an opportunity to
remedy that
-or the court can actually deem the fact admitted/established for purposes of the motion
-or can just grant summary judgment if non-movant failes to respond properly
-must support factual allegations with certain things
-not all of them will be admissible in court (affidavits)
-evidence can be submitted in a form that is not admissible
-56c2: however, if the evidence can never be submitted in a form that would be admissible, then it can be
excluded in determining summary judgment
-when should the court grant summary judgment? What is the standard?
-56a: summary judgment granted if movant shows 1) that there is no genuine dispute as to material fact, 2)
movant is entitled to judgment as matter of law.
-no genuine dispute as to material fact:
-what dispute is genuine?
-if reasonable jury could come out differently on the quesiton, then there is a genuine dispute
-if jury would question the credibility of witness, or there is evidence on the other side
-what qualfies as a material fact?
-one that would affect the outcome of the case
-how this is decided will be influenced by:
-who bears burden of persuasion--who has to persuade trier of fact that their position is true
-standard of proof (clear and convincing vs. preponderance, etc.)
Summary judgment:
-no genuine issue of material fact, and movant is entitled to judgment as a matter of law
-what are the material facts?
-is there a genuine dispute?
-issue on which a reasonable jury could come out one way or another
-claim that we need to test witness credibility by way of trial alone won't be enough to defeat summary judgment;
need a showing as to why denying summary judgment and going forward to trial will be beneficial/important
-wrinkle to the notion that you can't just assert a need to cross examine affiant
-taxpayer had exclusive knowledge as to critical facts and motive (was it a vacation)
-in this instance, summary judgment not appropriate; need to put the witness on the stand
-avoid summary judgment in unique contexts like this notwithstanding failure to make a showing as to
-D in slander presents affidavits that all of the people present deny that the slanderous statement was made-negates the existence of P's claimed facts
-restrictive view of summary judgment--any movant must foreclose the possiblity that the non-moving party can
prevail at trial
-Celotex steps away from that
-what's required by movant is influenced by who bears the burden of persuasion at trial and the standard of proof
-burden of proof generally assigned to party seeking affirmative relief: P on claims, D on affirmative defenses
-if you bear burden of persuasion at trial and you are the movant, what do you have to do in order for the non-movant
to be required to respond
-must provide credible evidence showing that you are entitled to judgment--must be as to all required elements
-if moving party carries that burden, then non-moving party:
-can provide evidence that demonstrates a genuine dispute as to a material fact (provide own evidence or
cite to the record)
-can ask for more time, giving reasons as to why you don't have facts at this point to oppose the motion
-if you don't bear burden of persuasion at trial and are the movant, two options
-1 provide evidence that negates an element of the non-movant's claim/defense (Dyer--here are the affidavits of
everyone present at time that the alleged slanderous statement was made)
-2 demonstrate that the non-movant lack evidence to support its claim/defense
-but you can't just allege that there is not sufficient evidence to support its claim defense
-have to make showing of a lack of evidence (D here tried to do this--we asked for witnesses that would
support causation claim, but they didn’t provide any)
-reason to believe that there is a conflict of interest may be a basis for challenging credibility and requiring it to go to
trial to judge the credibility of that witness
How standard of proof affects summary judgment outcome
-defamation claim
-P must show clear convincing evidence of actual malice
-D motion for summary judgment argue that P can't meet that burden
-if court isn't supposed to weigh evidence, how is this appropriate for summary judgment
-evaluate evidence, not to see who is more persuasive, but ask if reasonable jury can look at this evidence and
conclude that it is clear and convincing evidence of malice
-have to view summary judgment through the lens of burden of proof
-if you have to meet higher burden of proof, need to provide even more evidence/more convincing evidence than
party that would need to meet a lower burden of proof
Drawing inferences in favor of non-moving party
Scott v. Harris
-car chase driver injured when cop ran him off the road
-P claims that he was just driving, no problem
-D claims that P was driving very fast and dangerously
-based on that, there is a genuine dispute as to material facts; court can't weigh evidence and decide that the cop is
more credibility
-but there is a videotape of the chase, P doesn't dispute that it is authentic
-court looks at the video and decides that no reasonable jury can believe P's version of the car chase
-can't draw inferences in favor of P here b/c contradicts with the evidence from the video
-Ps claim that Japanese TV manufacturers entered into price fixing
-court: there is no rational economic motive for the Ds to price fix and there is another innocent explanation for their
behavior, so can't infer from the available evidence that there
-some inferences are not reasonable/allowed
-court doesn't choose between inferences, but there are some inferences that are not legally allowable
-essentially same legal standard as summary judgment
-50a1: if party has been fully heard on an issue during jury trial and court makes conclusion that reasonable jury doesn’t
have legally sufficient evidence to rule for a particular party, the court can rule on that issue or on the case as a whole
-after party has been fully heard
-a2: and any time before case is submitted to jury
-D can move for judgment as a matter of law after P has presented its case
-P can move for judgment as matter of law after D has presented its defense
-if court doesn't grant judgment at that time
-50b: court is considered to have taken that motion under advisement
-b: renewed motion no longer than 28 days after entry of verdict, party can move for judgment
as a matter of law
-purpose: provide legal check for jury
-but taking case away from jury or setting aside a jury verdict is problematic
-court: we have done it for a very long time, found common law analogies to directed
verdict where the court evaluated what the jury was doing
-conclusion: judment as matter of law isn't contrary to 7th amendment
-more difficult, though, when it's on a renewed motion after jury verdict
-these are OK, consistent w/ const. provided that they are renewed motion
-allow it only in a situation when it has been raised before the jury has deliberated before
being raised afterward as a renewed motion
-but can't overturn jury verdict if motion for judgment as matter of law wasn't
brought before the case went to the jury
-why would we want to move for judgment of matter of law before the jury takes the case (other than satisfying const'l
-gives the court notice as to the grounds upon which you assert that you are entitled to judgment
-tells court what the potential flaws are in the evidence
-court can provide the opposing party an opportunity to correct problems in the record before they make it
all the way to the jury deliberations
-how likely is it that the court will grant the initial judgment as a matter of law? What are the incentives for the court to
-judge can rely on the jury to come to the right conclusion
-if there is a jury verdict against which the court rules as a matter of law, on appeal the court can fall back to the
jury verdict rather than remand
-like summary judgment, court isn't supposed to be weighing
-evaluate legal sufficiency of the evidence and ask if reasonable jury can credit it and rule in the party's favor
-but court can engage in weighing in context of motion for new trial (rule 59)
-can grant new trial if verdict is against the weight of the evidence
Judgment as a matter of law--rule 50
-essentially same legal standard as summary judgment
-50a1: if party has been fully heard on an issue during jury trial and court makes conclusion that reasonable jury doesn’t
have legally sufficient evidence to rule for a particular party, the court can rule on that issue or on the case as a whole
-after party has been fully heard
-a2: and any time before case is submitted to jury
-D can move for judgment as a matter of law after P has presented its case
-P can move for judgment as matter of law after D has presented its defense
-if court doesn't grant judgment at that time
-50b: court is considered to have taken that motion under advisement
-b: renewed motion no longer than 28 days after entry of verdict, party can move for judgment
as a matter of law
-purpose: provide legal check for jury
-but taking case away from jury or setting aside a jury verdict is problematic
-court: we have done it for a very long time, found common law analogies to directed
verdict where the court evaluated what the jury was doing
-conclusion: judment as matter of law isn't contrary to 7th amendment
-more difficult, though, when it's on a renewed motion after jury verdict
-these are OK, consistent w/ const. provided that they are renewed motion
-allow it only in a situation when it has been raised before the jury has deliberated before
being raised afterward as a renewed motion
-but can't overturn jury verdict if motion for judgment as matter of law wasn't
brought before the case went to the jury
-why would we want to move for judgment of matter of law before the jury takes the case (other than satisfying const'l
-gives the court notice as to the grounds upon which you assert that you are entitled to judgment
-tells court what the potential flaws are in the evidence
-court can provide the opposing party an opportunity to correct problems in the record before they make it
all the way to the jury deliberations
-how likely is it that the court will grant the initial judgment as a matter of law? What are the incentives for the court to
-judge can rely on the jury to come to the right conclusion
-if there is a jury verdict against which the court rules as a matter of law, on appeal the court can fall back to the
jury verdict rather than remand
-like summary judgment, court isn't supposed to be weighing
-evaluate legal sufficiency of the evidence and ask if reasonable jury can credit it and rule in the party's favor
-but court can engage in weighing in context of motion for new trial (rule 59)
-can grant new trial if verdict is against the weight of the evidence
-pros and cons of preventing multiple bites of the apple
-judicial efficiency
-preserve repose of party in whose favor the judgment was given
-but can prevent the correct result from occuring--sacrifice accuracy
-terminology (not consistent)
-res judicata
-used to describe any preclusive effect of a previous judgment
-but technically, res judicata = claim preclusion
-also: merger and bar
-if P didn't litigate all their rights in the first proceeding, those rights merge into the judgment
and they are barred
-collateral estoppel = issue preclusion
-elements and scope of each:
-claim preclusion
-final, valid, judgment on the merits
-final: the judgment can't be an interlocutory one (denied motion to dismiss that allows suit to
-claim preclusion not prohibited just because there is an outstanding appeal--post judgment
proceedings don't prohibit using claim preclusion
-on the merits
-if the court has dismissed something with prejudice, this will qualify
-can be on summary judgment or judgment as matter of law
-not on the merits:
-dismissal for lack of jurisdiction or failure to join a party
-valid: court must have authority/jurisdiction to make the judgment
-same parties as in the first law suit or parties in privity with those in the first law suit
-in privity:
-having similar interests wouldn't be enough (family in the Starkist case)--if parents didn't join,
they wouldn't be precluded
-assigning interest in a claim is privity
-ex: insurer--assign to insurer the claim for the property damage, and the insurer sues to
recover; injured person would be barred
-also: trustees/executors
-same claim--prior litigation needs to involve the same claim as the current one in order for the current one
to be barred
-claim is a term of art, not just the same theory/cause of action;
-what was or should have been brought in that first suit--the basic unit of litigation that can't be split
-Rush v. City of Maple Heights: involves claim and issue preclusion, as well as stare decisis (not a
preclusion doctrine, but there are some parallels)
-facts: P injured in motorcycle accident, brings two separate suits against city for negligent
maintenance of the suit
-first: property damage, gets it
-second: personal injury damage, gets judgment and verdict for $12K
-city appeals: P was precluded from bringing the personal injury suit
-what role does stare decisis play in this case?
-should the Vasu case apply?
-similar to this one: two suits, one based on property damage, one on personal
-this is prior litigation affecting subsequent litigation with people who weren't involved
with the prior litigation
-Vasu: personal injury and car damage
-P assigns property damage to insurance company
-ins. co brings suit on property damage
-P brings suit on personal injury
-so it's different in that the suits aren't brought by the same party
-court: separate litigation was OK since one of the claims was assigned
-is this court bound to follow the Vasu decision?
-rationale for not following dicta:
-with dicta, we can't be sure that the court really thought it
-judicial power: courts are only supposed to decide
cases/controversies brought before them
-here, there is a factual difference in that it's the same P in both suits
-the statement in Vasu that if you are injured in property and person,
you have two separate rights is a minority position
-minority position: there is no claim preclusion when you have separate rights that you are
vindication: property damage and personal injury
-but you would get issue preclusion
-issues decided in one are binding in another
-majority position: claim preclusion here when there is property and personal injury
-how to determine that we have the same claim such that subsequent litigation is precluded
-transaction test: are the things in the subsequent suit transactionally related to the
previous suit
-joinder, supplemental J also apply transactional relation test: are these things that
should be resolved in a single law suit
-transactionally related for claim preclusion purposes:
-same time, same motivation, does treating them as one claim conform to the
parties' expectations or business usage--do people expect that they'll be tried
-application to this suit: it's easy--they're from the same motorcycle accident, so P
precluded from subsequent suit
-result: P relied on supreme court from this state gets her $100 from earlier
suit, but can't get $12k to which she was entitled from subsequent suit
-indicates that the doctrine of preclusion is very strong; concerns for
consistency, finality, efficiency are strong
-defendants also have to worry about claim preclusion
-every available defense that D has must be stated in the first litigation or they are lost as to that claim
-so D faces suit from P, doesn't raise some of the defenses, P prevails, takes judgment to another
court to enforce the judgment, D can't raise defenses that were available at the time of the original
-D doesn't have to assert counterclaims, cross claims, etc., unless there is a statute or a rule that requires it
-rule 13: some claims are compulsory
-if D raises defense but not a non-compulsory counterclaim that's grounded in the same facts as the
defense, D isn't precluded from bringing the counterclaim in a subsequent suit, but issue preclusion will
apply--issues decided on in previous case will be binding in the subsequent suit.
Claim preclusion
-final, valid, on the merits judgment
-same parties or parties in privity w/ original parties
-same claim
-transactionally related--arising out of same transaction
-same kind of thing in joinder rules, supplemental jurisdiction (common nucleus of operative fact)
-in each context, we are determining what the scope of litigation should be
-policy concerns that may not be the same as in these other contexts
-would parties expect these things to be litigated together
-is it convenient to treat these things as part of the same thing
-raising the argument that preclusion applies
-rule 8 (governs pleadings generally)
-8c1: in response, party must assert affirmative defense, including claim/issue preclusion (res
-difference from claim preclusion
-issue preclusion more narrow
-claim preclusion applies to everything that should have been brought up previously
-issue applies only to things that were ACTUALLY LITIGATED
-issue preclusion as a doctrine is less precise than claim preclusion
-motivated by the same concerns underlying claim preclusion
-finality, repose, etc.
-cons are pretty much the same--accuracy
-may incentivize parties to litigate issues more vigorously than they otherwise might--if it's not all that important
in the suit, you often won't want to waste too much time on it
-actually litigated requirement balances this out a little bit
-so admissions/stipulations may not be precluded
-same issue
-actually litigated
-necessarily decided
-resulting in a final, valid conclusion on it (not necessarily on the merits b/c some procedural things can decide
issues like a determination that personal J doesn't exist)
-finality required can be less than that required in the claim preclusion
-even if previous court didn’t reach a final judgment, it could have decided the issue finally
-same parties
-actually litigated
-policy behind giving issue preclusive effect only to things that are actually litigated
-don't want to make everyone litigate everything to the utmost if it's not important in the case, but it may
possibly be important in a later suit
-concern about repose or waste of resources through double litigation aren't as strong because it wasn't
litigated and resources weren't wasted in the first suit because it wasn't litigated in the first suit
-city has issued bonds for building court house
-P sues county on certain coupons that P owns, loses that suit
-subsequent suit in which P sues county on the same bonds but later-maturing coupons--different coupons
-county: preclusion kicks in b/c already had decided in previous suit that P wasn't bona fide purchaser
for consideration
-claim preclusion?
-same parties? yes, earlier suit filed by one in privity w/ P here
-but not same claim--separate, later-maturing coupons
-expectation/usage is that each coupon is a separate obligation, and can recover on each of
them individually
-issue preclusion?
-important issue: he must be bona fide purchaser for consideration
-why was this important?
-developer pocketed the money from the bonds, gave some to the judge
-the bonds were fraudulently issued
-if issued fraudulently, the only people who can recover on them is a bona fide purchaser
for consideration, not people who were in on the fraud
-in the original suit, it was found that as to those coupons, he wasn't a bona fide puchaser for
-but was this actually litigated?
-it was to some degree--he wasn't bona fide purchaser because he didn't present any
evidence that he was
-it was a determination as to the coupons at issue in that suit, not as to those involved in
this suit
-in general, how to determine what has been actually litigated--how to carry burden of establishing that it has
been actually litigated; what evidence?
-trial record
-sometimes evidence is submitted because it addresses more than one issue, and it's not labeled as to
which issue it is submitted to decide
-what did P put in issue and D keep in issue by denying
-but rule 15: if parties at trial introduce evidence and there's no objection, we're going to deem
the pleadings to be amended, so we won't always see these issues in the pleadings--not always
-you can move to get the pleadings amended to actually reflect the change in the pleading
-jury instructions
-these are the things you are required to decide
-damages awarded
-certain types of damages might only be allowed on certain types of claims
-verdict form
-but problem is that most verdicts are general verdicts: P wins $X
-general verdict w/ interrogatories or the special verdict do give good evidence as to what was
-findings of fact/conclusions of law from the judgment of the trial court judge
-can hold a hearing to determine whether it was litigated, and consider outside evidence
-necessarily decided
-if something was necessarily decided, that doesn't mean that it was actually litigated
-may ultimately be part of the judgment--essential element of the claim has been admitted--but not actually
-Rios v. Davis
-first suit: Poplar v. Davis
-Davis also sues Rios for as third party for damage caused to the car
-wouldn't be allowed under federal rules b/c not brought in to indemnify/shift liability
-jury: all were negligent, all were proximate cause of damages in the accident
-second suit: Rios sues Davis for injuries
-Davis: in prior suit, jury found that you were contributorily negligent, so you're precluded
-but issue preclusion doesn't apply b/c the finding that Rios was negligent was not necessary for
the judgment
-didn't need determination that Rios was cont. negligent in order for the court to
determine that neither Poplar nor Davis could recover
-Rios couldn't appeal the findings that he was contributorily negligent, because there was no
judgment against him
-it's judgments that are preclusive, not findings; only those things that go into the judgment
have preclusive effect
-not necessarily decided, so not preclusive
-what if Rios had been brought in to shift liability to Rios
-the only finding of contributory negligence that would be necessary would be the finding that Poplar
was contributorily negligent
-findings that the others were cont neg wouldn't preclude
-Russel v. Place
-two claims in the patent
-P sues D in first suit for patent infringement
-D argues that patent is invalid b/c the invention wasn't novel and public was using the invention
before the patent
-P prevails, gets damages
-second suit here:
-D sells P technology again, P sues for injunction
-D raises same arguments: lack of novelty, use by public
-P preclusion should
-claim preclusion?
-no, different violation of the patent this time, not the same alleged violation as in the first suit
-issue preclusion?
-P argue: D has already made these arguments in the other suit
-but court here: arguments aren't precluded because the first litigation didn't determine if damages
were based on one claim of the patent or the other
-all we know is that a part of the patent was found valid
-similar situation when there are alternative determinations?
-some courts: give preclusive effect to both alternatives
-others: give preclusive to neither
-restatement: if both are confirmed on appeal we'll give preclusive effect to both (or only to the one that
was confirmed on appeal if only one of them was?)
-another element that restricts the scope of issue preclusion is the requiremnt that the sam issue be litigated
-same issue
-suing for pension payments
-court rules that P had served in the civil war
-later suit, the court has changed its interpretation of the pension statute, but court rules for P because of
issue preclusion
-issue preclusion doesn't apply to questions that are purely law, but will apply when it's a mixed question or
when it's a question of fact
-since Moser supreme court has indicated that issue preclusion can apply to purely legal issue;
restatement takes same approach
-it's too hard to determine what is a q of fact or law
-presume that issue preclusion will apply unless the law or facts have changed
-illustrated in Sunnen
-patent holder licenses to corporation, gets royalty, which he assigns to his wife
-IRS says that D should be taxed for this
-but court says that it's OK, judgment applies to years btwn 1928 - 31
-later suit by IRS, IRS wins
-scotus looks to see if preclusion applies
-claim preclusion?
-no: different years of tax liability
-issue preclusion?
-there are limits to issue preclusion
-need to apply issue preclusion in light of concerns for the fairness that would
result or lack of fairness
-issue preclusion confined to where you have the same issue and there are
no changes of fact or changes of law
-what has changed?
-factual change: income came from a different year
-very formalistic
-not fair to give the plaintiffs the same tax treatment for life when
the rest of the public is subject to a different standard
-balance significance of the change with concerns for repeated
litigation, taking into account policy
-what about the royalties that come from the original assignment
-there is no fact change--it's the assignment that was subject of the
original language
-but court: there is a change in issue because of a change in law
-how did the law change?
-no statutory change
-but development of scotus jurisprudence as to control of
income and how it is attributed
-cases gave added emphasis and content to the idea of
income control
-sufficient change of law to prevent issue preclusion from
kicking in
-what's motivating the court? not fair that these people get special treatment
-reconcile Sunnen and Moser?
-consistent in that legal determinations might not be subject to issue preclusion
-but as to mixed questions of law/fact
-fairness considerations weren't as important in Moser, had smaller impact than tax law
feedback from the memo assignment
-be sure to engage the facts
-Mas test (domicile standard) applies to subject matter jurisdiction diversity, not necessarily the same as for personal
jurisdiction question; domicile isn't necessarily the test--even if it is, post-Shaffer we may still require a minimum
contacts analysis
-answer the relating to/arising out of question to determine whether specific/general is required
-subject matter jurisdiction
-corporation by statute is citizen where incorporated and principal place of business
-supreme court has endorsed the nerve center approach for principal place of business--where the
decisional authority is
-aggregation: adding up remedies sought in order to satisfy amount in controversy
-one P suing one D, it's OK to add up remedies from different claims, and different types of remedies
-multiple P's only get to aggregate if suing on common, undivided interest
-not that P's were involved in the same accident, or defrauded in the same way
-but the law must recognize the interest as common, undivided
-ex: partnership suing on a debt owed to the partnership; each P will only get a portion of the
-ex: P's may each own the whole property
-supplemental J also implicated here:
-if one P satisfies the amount in controversy independently, then you can add P's that don't
satisfy amount in controversy independently
-it's not aggregation of the amounts to get original J
-confusion on 1367 b: here's where you get supplemental J, but (b) you don't get it when original J is based
on diversity in certain situations--don't want supplemental J to be used to get around diversity
requirements: when P sues (we're not concerned about defendants suing in a way that destroys diversity
-issue preclusion
-same issue
-narrow perspective that allows changes in fact, changes in law, separable facts to be new issues
-actually litigated
-necessarily decided
-final and valid
-same parties/parties in privity
-this requirement has to a large extent been abolished
-same parties
-party couldn't claim benefit of the prior judgment if it would not have been bound by an adverse ruling in
that judgment
-bus and taxi collide; bus driver sues taxi driver, wins; passengers on bus sue taxi driver, passengers can't use
the previous judgment against taxi driver in their suit against taxi driver
-passengers weren't in a position to be bound by an adverse ruling in the bus v. taxi driver case, so
can't claim the benefit of it
-makes sense: makes sure that person bears the burden if you're going to get the benefit
-but it's against the values of efficiency--relitigate issues already decided
-also opens up possibility of inconsistent judgments
-courts gradually cutting back on the requirment, initially in the context of indemnification
-city engages contractor, requires contractor to indemnify city if he does the work wrong
-P sues contractor for damage, and loses, but then goes ahead and sues the city
-without issue preclusion, it can put the contractor on the hook twice or denies the city the
benefit of its indemnification
-decedent Sather had authorized Cook to withdraw money from her account
-Sather transfers her money to San Dimas account accessible both by her and by Cook; Cook withdraws all the funds
-Cook is executor of her estate, has to make accounting, doesn’t mention the money
-Bernhard sues Cook for taking of the money from the account
-Berhard loses; court finds that Sather gifted the money to Cook
-Bernhard appointed administratrix of the estate, and sues the bank claiming that it shouldn't have allowed Cook to
withdraw the money
-Bank claims issue preclusion: it had already been determined that it was OK for Cook to take the money out of
the account
-Defensive use of issue preclusion
-under mutuality, issue preclusion wouldn't apply b/c bank wasn't in position that it would have been bound
by the original proceeding (it wasn't a party or in privity)
-however, CA court allows issue preclusion without mutuality
-non-mutual and defensively
-why reject mutuality?
-not fair for someone who already had the issue litigated to have it relitigated just by changing the party
-due process requires that preclusion be asserted only against someone who had opportunity to litigate, but
doesn't require that the party asserting issue preclusion have been a party to the previous suit
-waste of resources
-mutuality prevents the need to join parties in a single suit
-incentivizes bringing suits against different defendants separately
-raise the perception that litigation is just a gamble--harms perception of the judicial system
-just because rules don't compel joinder, there are still reasons for it to be all resolved in the same suit for
efficiency or preventing possibility of inconsistent judgments
-getting rid of mutuality requirement incentivizes P bringing in all the defendants in one law suit
-all we need is that the party against whom preclusion is asserted be a party/privy in the previous suit
-here: same P here and in previous party
-problems with ersion of mutuality requirement?
-may be different incentives/lower incentive to litigate the issue in the first suit
-unfair that bank gets benefit from the previous litigation without having had to bear the burden
-may overincentivize bringing in a lot of defendants in the same suit
1971 scotus
-UofI holds patent, sues company for infringement and loses
-subsequent suit, UofI sues D here for infringement
-same situation as Bernhard: defensive, non-mutual use
-scotus abandons mutuality requirement here
-we're not going to relitigate unless fairness requires it
-fairness factors:
-look for full and fair opportunity to litigate; if they had this, then it's fair to bind them w/ the previous judgment
-choice of forum--was it particularly inconvenient?
-P's generally got to choose the forum
-incentive to litigate
-were legal standards were appropriately applied
-may be rare case where the trial court didn't understand the technical issues of what was going on
-procedural problems
-discovery rules didn't allow certain evidence to be brought
-ultimately, it's something that the court has discretion about--no blanket rule as to when issue preclusion is allowed
where mutuality is missing
-courts are generally more open to defensive uses than offensive uses
-but court does sanction some nonmutual offensive uses of issue preclusion
scotus 1979
-SEC sues D for issuing false, misleading proxy statement
-SEC seeks injunction and wins
-subsequent suit by Shore against same D b/c his company was harmed by the proxy statement (same statement, same
-P asserts that D can't contest the question of whether or not the issue statement was misleading
-asserted against someone who was a party in the prior law suit
-not requiring that the party asserting preclusion be a party in the previous suit
-why more comfortable with defensive than offensive uses
-if you get a judgment against D, puts target on their back for other P's to bring subsequent suits
-this isn't so much of a problem on the merits, b/c P's should be able to recover
-incentive for Ps not to join and wait and see if you get a favorable ruling, of there isn't a favorable ruling, P can
bring a suit
-unfair to D in that D may not have had incentive to defend fully in the first suit--maybe the suit was small and it
wasn't a huge deal, but later suit on same issue for big damages
-there may be different prior rulings from different prior suits, and P can decide to use issue preclusion from
the previous suit that came out against D, but D can't use the rulings in his favor because new P wasn't a
party in that suit
-but court allows nonmutual offensive collateral estoppel in this case
-the potential problems from this are not always going to exist
-there are other ways to take care of the problems
-allow it, but with sensitivity to the problems that nonmutual offensive collateral estoppel may cause
-when will it be allowed?
-it's within the court's discretion
-shouldn't authorize it in situations where P could easily have joined in the prior suit
-look at fairness to D; if unfair, if D didn't have full/fair opportunity to litigate the issue, then should
deny the issue preclusion
-application here:
-P couldn't really have joined the first SEC suit b/c statute said that additional Ps only get to join if SEC
consents; sideline problem not an issue here
-unfair to D to hold them to the previous determination?
-D had full/fair opportunity; no forum problems or anything
-no lack of incentive to litigate fully against SEC b/c D knew that if they lost, they could expect
that they would be subject to private litigation
-no prior inconsistent judgments involved here
-any different procedural opportunities?
-yes: in civil cases, there is opportunity to trial by jury, whereas in the SEC case, it was an
injunction and was tried before judge
-court: in this case, the difference was not all that big of a deal--presence or absence of
jury as finder of fact wasn't significant
-dissent: 7th amendment guarantees jury trial, and jury trial might make a
-it's a matter of discretion for the trial court
-pretty much same considerations as defensive use, but add the question of whether P sat on the sidelines/could have
easily joined in the previous suit
-due process requires that issue preclusion can only be used against someone who was a party/privy in the previous suit

Civ Pro Outline—Owens—Prof. Moore 2011 COURT SYSTEM Fed