3 min answer = 1 small paragraph
20 min answer = 1 page
30 min answer = 1.5 pages
40 min answer = almost 3 pages
4.
Does the court have personal Jurisdiction over the party?
If the party is a resident of the state
Specific Jurisdiction
The claim must arise out of specific conduct affiliating [party] with [state].
General Jurisdiction
IPJ for any cause of action against the ∆, whether the cause of action arose from the in-state activity or activity outside the
state – requires that a ∆ engage in systematic and continuous activity such that the ∆ is essentially at home in the forum.
4. presence & service in the state (even if only passing through)
(ii) domicile
(iii) consent
a. express (by contract, appointment of agent)
b. implied (state has substantial reason to regulate in state activity, e.g. non resident motorists)
c. appearance
(iv) long arm statutes
[specific or general enough for a state court to have personal jurisdiction over party]
If the party is a non-resident
A federal district court in [state] can exercise personal jurisdiction over non residents and foreign corporations
under the state’s long arm statute (LAS). The [state] long-arm statute enumerates the circumstances in which such
jurisdiction can be exercised. In addition, the exercise of jurisdiction under the LAS must satisfy the Constitutional
requirements of due process. The court has personal jurisdiction over plaintiff because it has consented to
jurisdiction by bringing suit.
[A federal district court may under Rule 4 exercise jurisdiction over a non resident when a court of the state would
be able to do so. [party] is a non resident of [forum] and for the court to be able to exercise personal jurisdiction,
the exercise of jurisdiction must fall under [forum]’s long-arm statute (LAS) and the exercise of jurisdiction under
that statute must satisfy the requirements of due process under the Fourteenth Amendment of the U.S.
Constitution. The court must have personal jurisdiction for each of the claims that the plaintiff(s) are asserting
against [opposing party] – [list claims].
LAS Analysis
[*** claim must arise out from txn of business, etc.**]
That section applies if the non resident “transacts any business in the
state.” [and the claim arises from this transaction]
 sales, employees, or operations there, advertising (even
through a national magazine)
 having an active website where state citizens can buy a
product directly from the website
 referrals part of a business relationship
 “but for” test for “arising from” would mean that but for the
transaction of business the [claim] would not have occurred.
 It does not matter if they transacted business by calling a
phone number, by the Internet, or mailing in a form
(b) That section applies if there was an agreement to supply services or
things in the state.
 whether person in the state was acting as an agent (not be
agents if the relationship between them ends with the sale)
 referrals may be a service
4.
(c) applies/ does not apply because [party] [has/has not] caused a tortious
injury by an act or omission in this commonwealth.
(d) applies to causing injury in the state by an act or omission outside the
state but only if the defendant (1) regularly does or solicits business in the
state; (2) engages in a persistent course of conduct; (3) derives substantial
revenue from goods used or consumed in [state]. We don’t have a lot of
information other than…
Section (e) applies/ does not apply because it only deals with the possession
of real property.
Short Form Rejection of LAS
It does not seem that any provision of the [state] long-arm statute applies to [party]. 3(a) would not
apply because they do not transact business there – if they do the claim does not seem to arise out
of that business. For the same reason (b) would not apply – they do not contract to supply things in
[state]. (c) doesn’t work – they did not act in state. (e) nor (f) apply b/c we are not dealing with real
property in state or selling insurance. (d) might apply – but for their [negligence in…], they would
not have caused injury in [state] but we are not told they solicit business in [state], derive
substantial revenue from [state] or engage in other specific course of conduct.
4.
Are the due process requirements of minimum contacts and reasonableness met?
Goodyear v. Brown
The ∆, a subsidiary of Goodyear, regularly had its tires sold in North Carolina by others, but such
sales were a small fraction of total sales, and the subsidiary was not involved in the sales process.
The Court concluded that mere purchases of the ∆’s products in the forum cannot constitute
“continuous and systematic” contact for general jurisdxn.
Helicopteros v. Hall
Mere purchases in the forum state not enough for general jurisdiction.
Minimum Contacts Analysis
Purposeful availment
Evidence of availment is action taking place in the forum that invokes the benefits and protections of law in the forum.
Contacts cannot be accidental. ∆ must reach out to the forum in some way, such as to make money there or use the roads there
whereby they purposefully availed themselves of “the privilege of conducting activities within the state, thus invoking the
benefits and protections of its laws.” Hanson v. Denckla.
 dealing with officials in a state to reach a contract
 phone calls or faxes
National advertising
If gets business in the state, may be arising out of

Burger King:
 The majority held that even though the defendant had never been in Florida, this
Michigan resident purposively established a relationship with Florida by choosing to
participate in a franchise agreement with a Florida company. In doing so, the defendant
chose not to remain a local enterprise but reach out beyond the state to affiliate with a
franchisor to purchase a franchise and acquire other benefits. In this way the defendant
purposively established a relationship with the state sufficient to satisfy the
requirements on minimum contacts.
The majority was concerned that the application of jurisdiction “would result in the exercise of
personal jurisdiction over ‘out-of-state’ consumers to collect payments due to ‘modest personal
purchases’ but emphasized that in each case, the court must look at the quality and nature of
interstate transaction. (large and repeated txns between sophisticated commercial enterprises or
individual consumer one off purchase?)
McGee v. International Life Insurance Co.
Texas insurance company had PJ in California one basis of just one life insurance policy because it
delivered the contract there and the premiums were mailed from there.
Calder v. Jones:
The court said that an out-of-state writer of a defamatory story that was disseminated in
California was subject to personal jurisdiction in California. The writer acted intentionally to
produce an article for dissemination in New York and could foresee being haled into court there.
Calder establishes an “effects test” where the defendant has committed an intentional act
expressly aimed at the state that caused harm in the state.
Internet Cases
Any action in the forum state? Expressly aimed at forum? Harm suffered in the state?
Stream of Commerce
That test requires action by which the defendant affiliates itself with the state. Through the stream of commerce, the defendant
purposefully availed itself of the market in the forum state in a way in which the defendant could anticipate defending an
action there. And the exercise of personal jurisdiction must be reasonable.
Whether the exercise of personal jurisdiction will satisfy due process depends upon which view of the
stream of commerce will be followed.
It is unresolved whether placing an item in the stream of commerce with the knowledge or hope that it will wind up in
a particular state would be a sufficient basis for PJ. All depends on intentional targeting (purposeful availment) of the forum.
If there is no targeting, consider the connections the ∆ has with the forum, fairness to the ∆, the state’s interest in providing a
forum for its citizens and note that the question has not been definitely resolved. Of anyone in the chain of distribution and
sales, the manufacturer should be subject to the broadest scope of jurisdiction.
Intentional targeting can include:
 Designing the product for the market
 Market the good there
 Advertising in the forum state
 Have a sales agent
Asahi
(Japanese manufacturer of valve stems for tire tubes manufactured in Taiwan was aware that some
valves would be incorporated into tire tubes sold in California).
Brennan:
the knowing placement of your product in a chain of distribution that may take it to the forum
state is sufficient to satisfy the requirement of purposeful availment . He emphasized that the
regular and anticipated flow of goods from manufacturer through distribution to retail sales
was an act of the defendant’s linking them to the state. He suggests that the defendant must
be aware that the good is being marketed there. If this is so, Brennan says it should be no
surprise that he faces a lawsuit there.
O’Connor:
requires more than placing the product in stream of commerce that will carry the product to
the forum state
World-Wide Volkswagen
Unilateral act of a consumer bringing a product into the state not enough.
II. Are the requirements for reasonableness met?
Convenience
A ∆ will often complain that the forum is inconvenient and the burden on ∆ to make a compelling case The Supreme
Court has emphasized, however, that the Constitution does not require that the forum be the best of several alternatives. The
forum is constitutionally acceptable unless it is “so gravely difficult and inconvenient that a party is unfairly put at a severe
disadvantage in comparison to his opponent. Burger King.
Reasonableness Factors to consider:
 Burden on the defendant
 Interest of the plaintiff
 Interest of the forum state
 Interest of the interstate judicial system in efficient resolution of disputes
 Shared interests of the state in furthering fundamental social policies
 Language
 Geographic distance to make travel burdensome & costly
 Mobility of defense
 legal heritage (English and American common law or civil)
 closeness to US and may do fair amount of business in US to be familiar with legal system
 State interest in providing a forum for its citizens
 whether ∆ may reasonably anticipate that her activities will cause injury in the state to render it
foreseeable that she be haled into court there.
 If she received benefits would not be unreasonable to defend in a state located in same region
 Will benefit from laws of state because they could have sought redress for contract in courts of state

(2.) § 1332 Does the Federal district court have subject matter jurisdiction?
The Federal district court [has/does not have] subject matter jurisdiction under diversity of citizenship (section
1332)/federal question.
§ 1331 Federal Question
If the claims arise out of a federal statute or the constitution, federal question jurisdiction will apply.
§ 1332 Diversity of citizenship; amount in controversy
Diversity under 1332 requires complete diversity, that is there must be a basis for the exercise of diversity
jurisdiction between each plaintiff and each defendant. If there is not, the court lacks subject matter jurisdiction.
Citizenship
Individuals
The citizenship of an individual rests on their domicile. An individual can have only one domicile. Domicile is a person’s
permanent home to which the person has an intention of returning whenever absent. To change a domicile a person
must take up residence in a different domicile and intend to remain there.
His domcile is uncertain. It could be X or Y. Evidence of whether someone has changed their domicile :
 Registered to vote
 Location of personal possession
 Owns property
 Where their families are located
 What organizations they belong to
Expatriates
If [party] is a U.S. citizen who is not domiciled in any state, [he] does not fall under any of the provisions of § 1332(a)
and like Charles Anderson is an expatriate who may not bring suit in a federal court. Thus, there would be no basis for
the exercise of diversity jurisdiction between [party] and any defendant and his joinder as a plaintiff would destroy
complete diversity regardless of the citizenship of the defendants.
Corporations
Under 1332(c)(1) a corporation is considered a citizen of any state in which it is incorporated and of the state in which
it has its principal place of business. If a corporation has activities in more than one state, its principal place of business
can be determined by the nerve center test, where corporate decisions are made, a corporate activities test, where its
production or service facilities are located, or a total activity test, a hybrid test that considers all the circumstances.
[company] is “located” in [state]. Absent other information, [state] is likely the state of incorporation and the ppb of
[company].
Businesses
The citizenship of businesses that are not corporations is assessed by looking to the individual members of the business.
For ex., if a law firm has partners who are citizens of NY, NJ, and CT, then the firm is deemed to be a citizen of NY, NJ, and
CT for diversity purposes. Note: This is not enough for PJ: it doesn’t seem like the domicile of a member of an
unincorporated association should be attributed to the association for purposes of PJ otherwise an association could be
subject to general jurisdiction in every state where a member is domiciled.
Aliens
If plaintiffs and defendants are aliens, no basis for diversity jurisdiction.
Tests for Principal Place of Business:
The nerve center test: the locus of corporate decision making authority and overall control constitutes a
corporation’s principal place of business for diversity purposes.
Although there have been competing tests for ppb, in 2010 the Supreme Court adopted the “nerve center” test as
the appropriate one under this statute. The test focuses on where the majority of executive and administrative
functions are performed and the center of control and direction.
Its “home offices” are located in [state] and that description implies that is where the major decisions regarding
control and coordination of its [nationwide network of grocery stores] and is likely the “nerve center” and its ppb.
Want to avoid the type of manipulation the Court condemned in Hertz.
Amount in Controversy
The amount in controversy must exceed $75,000 (exclusive of interests and costs). That amount is determined by a
good faith allegation of the jurisdictional amount. It must appear as a legal certainty that the plaintiff can recover
the alleged amount.
If uncertain:
 Estimate total revenue
 Character or property damage
 Character of personal injury
In any event, a single plaintiff can aggregate the amount of claims against a single defendant even if the claims are
unrelated to one another.
Aggregation of separate claims
o One π against one ∆ - may aggregate all her claims against a single ∆ regardless of whether legally or
factually related
o One π against several ∆ - cannot aggregate claims based on separate liabilities
o Several π against several ∆ - cannot aggregate
o Several π against one ∆ – can aggregate their claims only when they are seeking to enforce a single
title or right
(3.)
Was notice proper?
Under (4)(e)(1), a federal district court may use the notice provisions of the state. Notice must be made to the
defendants under these provisions; the terms of the provisions must be followed and the defendants receive actual
notice under them. (Notice: Not necessary that “must provide notice,” just “reasonably calculated” provide notice).
Immunity from service of process to encourage the administration of justice:
 People in jurisdiction to be a ∆
 Witness

(4.)
Attorney in a case
§ 1391 Is venue proper?
Federal question
Diversity of citizenship
If subject matter jurisdiction is based on diversity of citizenship, section 1391(a) is the appropriate provision.
A judicial district where any ∆ resides,
a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred,
 Because it only requires “a” substantial part if the events or omissions, there may be more than one proper
district under (a)(2)
 Where did the injuries 6ccur
or a substantial part of property that is the subject of the action is situated or if there is no district anywhere where the claim
can be brought.
(5) 1404 Can the federal district court transfer the action to another district court?
If venue is proper, transfer would take place under 1404. Under 1404(a), a federal court can only transfer a case to court
where the π could have originally brought the case (where the venue would have been proper). Standard for transfer is the
convenience of witnesses and parties in the interest of justice.
“in the interest of justice”
 Not an independent criterion that would permit the transfer when it would be inconvenient for witnesses and parties
 Jury bias is in the interest of justice

Examples sufficient for “in which a substantial part of the events or omissions giving rise to the claim occurred”
 corporate decisions relevant to disaster in another state & decisions giving rise to disaster
 contract made in the state

harm suffered in the state
The doctrine of forum non conveniens permits a court to decline jurisdiction even though it has personal and subject matter
jurisdiction as well as a venue if it believes that a more convenient forum exists. For federal district courts the doctrine usually
applies when the alternative forum is in a foreign country. A court applies the doctrine by balancing a number of private and
public interests.
Piper Aircraft
The Supreme Court held that the mere fact that the law of the alternative forum is less favorable is not a basis for denying a
FNC motion. Only if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no
remedy at all” may unfavorable law be given substantial weight.

Balancing test. Important considerations:
o Relative ease of access to sources of proof
o Availability of compulsory processes for attendance of the unwilling
o Possibility of view of the premises if view would be appropriate to the action
o All other practical problems that make a trial easy, expeditious, and inexpensive
o Enforceability
o Public interest: states interest in providing a forum, burden a local jury/clog federal courts, application of
foreign law?
Only invoke forum non convenience when the balance is strongly in favor of the ∆.
Applicable law
The Supreme Court held in Van Dusen tht the district to which the action is transferred must apply the law of the
transferring district; the Supreme Court seeks to prevent transfers for the convenience of witnesses and parties from
becoming a forum shopping device. So the [state] federal district court would be required to apply the law that a
[state] court would apply.
§ 1406 Wrong Venue
The standard is “in the interest of justice” that seems broader than for “convenience of witnesses and parties” but if it is
convenient for witnesses and parties, it seems transfer would be in the interest of justice. If the action can be transferred, that
transfer seems preferable to dismissal because dismissal would create issues with statutes of limitations.
Applicable law
If venue was improper in the transferring district, that district could not have applied its own law and the district to
which the action is transferred will apply its own law under the principles of Erie.
Can a party join another party? If joinder is permitted, is the exercise of subject
matter jurisdiction permitted?
(6)
Note: If the question only asks if the parties can be joined, only address Rule 20, not SMJ or PJ
[[A]] Rule 20(a)(2)(A)
“a right to relief against them jointly, severally, or in the alternative”
 Joint as would be the case with joint tortfearsor
 Several = one is a tort claim and one is a contract claim that apply different legal principles
 Alternative = it is not clear all of the defendants played a role
“arise out of the same transaction or occurrence”
 Logical relationship test:
o a broad test meaning: if the claims are connected in a way that it makes sense to try them together
o If it is factually inked we would expect them to be tried together.
 both claims relate to same harm
 both claims linked to events that could have led to that harm
 without harm , there would be no claim
 Rule 20 supports an even broader interpretation of the test b/c unlike other joinder rules, Rule 20 permits
joinder of claims relation to “a series of transactions or occurrences”
[[B]] Rule 20(a)(2)(B)
“any question of law or fact common to all defendants will rise in the action”
 Requires only one
[long form answer]
Under Rule 20 multiple plaintiffs “may join in one action” if they assert any right to relief” “arising
out of the same transaction, occurrence(T/O) or series of transactions or occurrences.” [insert what the
plaintiffs claims relate to]. The plaintiff’s claims will be logically related if they all relate to the cause of the
[damages] during one specific event. Rule 20 allows joinder as plaintiffs only “if any question of law or fact
common to all these persons will rise in the action.” Only one common question of law or fact is required.
[Here the common question of …. A common question of fact would be ….]
Under Rule 20 multiple defendants “may be joined in one action” if “any right to relief is asserted
against them” “arising out of the same transaction, occurrence (T/O) or series of transactions or
occurrences.”
[short form answer]
[plaintiff] may join [all parties as defendants] under Rule 20(a) which allows the persons to be joined as
defendants if there is asserted against them a claim that arises from the same transaction or occurrence as
the original claim and a question of law or fact common to all [defendants] will arise in the action.
R14 Third Party Practice
When a claim is asserted against a plaintiff, Rule 14(b) allows a plaintiff to bring in a third party if the rule would
allow a defendant to do so. Under 14(a), a defendant may join a non party who is or may be liable to the defendant
for all or part of a claim against a defendant[NOTE: must be a claim for contribution, not just any kind of relief].
[insert the facts of case here]. In order to assert such a claim under 14(b), [state] law must recognize the [claim]
and permit indemnification.
Once joinder is permitted there must be a basis for the exercise of subject matter jurisdiction. If there is no original
subject matter jurisdiction (diversity + amount in controversy), there must be supplemental jurisdiction. 1367(a)
will apply if it is part of the same constitutional case or controversy as the claims by [plaintiff] on which original
subject matter jurisdiction rest. The [claim at issue] will be part of the same constitutional case or controversy as
[π’s] original claims if [defendant]’s claims are be logically related to [plaintiff]’s claims against [defendant] or
logically dependent on the outcue of the counterclaim.
Common nucleus test for the same constitutional case or controversy
Claims are closely connected and would be expected to be tried together
Note: 1367(b) will prohibit a federal district court from exercising supplemental jurisdiction over a claim by a
plaintiff against a person made a party under Rule 14, 19, 20, or 24.
(7)
Can a party join claims?
Under Rule 18(a), once [party] asserts a claim to relief as an original claim, [party] can join “as many claims” as it
has against the opposing party. Rule 18 does not require that the joined claim be related to the original claim.
(8) Can a party assert a counterclaim? Does the court have subject matter jurisdiction
over the counterclaim?
Under Rule 13(a), the defendant must assert a counterclaim against an opposing party if it is part of the same
transaction or occurrence as the opposing party’s claim. The claim will be logically related to opposing party’s
claim if they both involve facts regarding the [issue, e.g. term of contract] and actions of the two parties under [the
issue].
If Rule 13(a) is satisfied, the court must have subject matter jurisdiction over the claim. Diversity of citizenship
and the amount in controversy must be met. [Note: amount in controversy is for the counterclaim only, independent
of the original claim; probably will be less].
Supplemental jurisdiction will exist under 1367(a) if [defendant]’s counterclaim is part of the same constitutional
case or controversy as [plaintiff]’s claims against [defendant], the claims upon which original subject matter
jurisdiction exists. The test for this constitutional relationship is the common nucleus test of operative fact. If the
logical relationship test is satisfied as is the case here, the common nucleus test would also be satisfied. [if it is a
claim by plaintiffs against persons made a party under Rule 14, 19, 20, or 24 no jurisdiction.]If the claim over
which supplemental jurisdiction is applied is a claim by a defendant rather than a plaintiff, 1367(b) will not
prohibit the exercise of supplemental jurisdiction
(9)Do the FRCP allow plaintiffs to amend their complaint to add claim?
If plaintiffs cannot amend as a matter under 15(a)(1)(A) and the defendants do not agree, they must seek the leave of the
course. However, Rule 15(a)(2) states that “the court should freely give leave when justice so requires.” This admonition will
make granting of leave likely if it will enable the plaintiffs to obtain full relief for all the [circumstances] surrounding the
[injury]/
Relating Back/ Statute of Limitations
Statute of limitations is a substantive provision under Eire, so the state law would apply. Under
“Leave to amend should be freely granted if justice would be served.” Under 15(c)(1)(B) relation back applies if the claim
“arose out of the same transaction or occurrence under the logical relationship test
Relates back if:
 Same conduct, txn, or occurrence
 Party received sufficient notice
 Party knew or should have known, but for a mistake, that the action would have been brought against him
 Notice for (ii) and (iii) must be provided within 120 days after filing complaint.
If claim is prejudicial
The court can deal with it by separating the claims for trial under 42(b)
Note: The mere fact that an amendment is offered late is not enough to warrant disallowance of the motion if the other party is
not prejudiced thereby.
The court has discretion in viewing on a case-by-case basis whether a complaint amendment is not unduly burdensome on the
opposing party, and they will look at factors such as whether discovery has yet to take place.
(10) Can the defendant remove the action to a federal district court?
Note: Do not need to address the application of the LAS.
Federal Question
The most common test for federal question jurisdiction requires that the claim be based on the Constitution or federal law. If
and agency has the power to regulate something, but has not done so, it will not be federal question jurisdiction.
[intro to answer]
Intro Section 1441 governs whether an action can be removed from a state to a federal court. Removal is permitted if
the federal district courts “have original subject matter jurisdiction over the action.” Original SMJ can rest of diversity (1332)
or federal question (1331). There is probably no federal question jurisdiction because defendant’s claims do not seem to arise
under federal law. [note contracts claims will be based on state law and tort claim does not seem to rest on a private action
created by a federal statute. Consider whether the facts state governmental agency is regulating activity or covered by a
Federal Act]
SMJ: Under section 1332, original SMJ requires complete diversity of citizenship between [plaintiff] and
[defendant(s)] and satisfaction of the amount in controversy requirement, that the amount exceed $75,000. [Subject matter
jurisdiction analysis here]
Limit on removal:
Because original SMJ is based on diversity, no defendant can be a citizen of the state in which the action is brought.
None of the defendants is a citizen of [state] and this requirement does not limit removal.
All defendants must seek removal.
The action must be removed to the federal district court “embracing the place where the state action is pending.” The
federal district court that encompasses the location of the state court will be the proper venue for a removed action.
The Erie Doctrine – Determining the Applicable Law
A federal court, in the exercise of its diversity jurisdiction, is required to apply the substantive law of the state in which it is
sitting, including that state’s conflict of law rules. Erie Railroad v. Tompkins However, the federal courts apply federal
procedural law in diversity cases.
4. Is the issue substantive or procedure?
If there is no federal directive on point, can a federal judge refuse to follow state law on a particular issue? The answer
depends on whether the law on that issue is substantive or procedural. If it is procedural, the federal judge may ignore state
law but if it is substantive, the federal judge must follow state law.
4. Some situations are clearly established
In some instances, the characterization as substance or procedure is well established, such as for statutes of
limitations and tolling rules are substantive for Erie purposes. Choice of law rules are also substantive, as well as
elements of a claim or defense.
2. Law Is Unclear in other situations
It is difficult to determine whether an issue is substantive or procedural for Erie purposes, and the Supreme Court has
given different “tests” at different times on this point, and has failed to integrate the tests comprehensively. The tests
are:
4.
Outcome determination holds that an issue is substantive if it substantially affects the outcome of the
case Guaranty Trust Co v. York
(ii) Balance of interests court weighs whether the state of the federal judicial system has the greater
interest in having its rule applied Byrd v. Blue Ridge
 state’s interest in a jury trial could be undermined by anger w/in jury pool to the extent that the anger
would affect a fair trial
(iii) Forum shopping deterrence directs that the federal judge should follow state laws on the issue if
failing to do so would cause litigants to flock to federal court Hanna v. Plumer
 did the plaintiff choose the forum?
Federal Question Jurisdiction § 1331
1. Confers subject-matter jurisdiction over all suits to enforce federally created rights to relief.
2. In rare instances may also confer federal jurisdiction over suits to enforce state-created rights to relief that necessarily turn
on substantial and disputed issues of federal law.
Pleading
General types
 Code-pleading: complaint requires a statement of fact that constitutes a cause of action
o To prevent irreparable injury to parties involved, an appeal may be taken prior to trial, on issues not finally
decided, if (1) the trial judge, in his discretion, certifies the case to the appellate court, (2) on a “controlling
question of law,” and (3) the appellate court permits the appeal. Gillespie v. United States Steel Corp. (Prior to
trial, Gillespie π appealed the district court’s ruling, striking parts of her complaint.)
 § 1291 permits appeal of final orders
o Pleadings were extraordinarily important to avoid an unfair surprise, was give a lot of weight by the courts
and whole case might be overturned if discrepancy between pleadings.
 Notice pleading (Fed R Civ P 8) merges law and equity. Complaint merely requires (a) jurisdictional statement (b)
short and plain statement of the claim showing pleader is entitled to relief (c) demand for judgment
o In order for a complaint to survive dismissal on the pleadings, the complaint must include enough facts to
state a claim to relief that is plausible on its face. Bell Atlantic Corporation v. Twombly (Telephone and
Internet subscribers alleged in a complaint that local telephone companies were violating antitrust laws. The
district court dismissed the complaint for failure to state a claim, and the Second Circuit Court of Appeals
Reversed).
o The Federal Rules of Civ Procedure only require that a complaint contain a short and plain statement of the
claim showing a right to relief. Dioguardi v. Durning (Dioguardi π filed a complaint against the Collector of
Customs for conversion and violation of § 1491)
o Rule 8 says facts do not have to be conceivable, just plausible. Conley v. Gibson
o Complaint must contain sufficient facts to state a claim that is plausible. Iqbal v. Ashcroft
o In deciding whether a securities fraud complaint alleges facts sufficient to establish a strong inference that
the ∆ acted with intent to deceive under the Private Securities Litigation reform Act of 1995, a court must
consider competing inferences of an innocent mental state that might be drawn from the same facts. Tellabs
v. Makor Issues & Rights, Ltd.
 Scienter can no longer be reasonably inferred from the facts of the case instead, a π must show that
fraud is a more likely explanation than any other more innocent explanation
 Policy behind pleading is to get the issue resolved on its merits
 Form of the complaint:
o Caption: no right order of names; alphabetical is logical, particularly if families are involved, but could also it
in order of importance
o Rule 83(2) requirement of a form must not be enforced in a way that causes a party to lose any right because
of a nonwillful failure to comply
o Paragraphs of complaint must deal with a single subject or topic as far as practical
o Attaching exhibits – need to think about attaching something because it will be used in the pleading for all
purposes so you may be approving something that can be used against you later
o Audience for the complaint:
 Judge: want to convince the judge this is a serious piece of litigation
 Opposing counsel/clients: first intro opposing counsel will have to them, enforce reputation
 Media & Public: pre-trial publicity and motion to transfer, potential ∆ and jurors
 Π’s, your clients
 Government
Attacking the Pleadings (Objections)
1. Preliminary objections
a. May be raised by motion or in responsive pleading
b. Objections to the manner in which action was initiated:
 Lack of subject-matter jurisdiction
 Lack of personal jurisdiction
 Improper venue
 Insufficient process
 Insufficient service of process; and
 Failure to join an indispensable party
2. Formal pleading objections:
a. Procedural errors
b. Motions to strike or motions for more definitive statement
3. Substantive pleading objections
a. Attack legal theory of claim
4. Federal pleading objections: Pleadings may be attached by responsive pleadings or by motion
5. Code pleading objections, e.g., demurrer
6. Motion to dismiss
The Answer
4. Admissions and denials of allegations in complaint.
 When party intends to deny all allegations in good faith may do so with general denial.
 Must be in good faith.
2. Affirmative defenses available – allows you to avoid complaint. R8(c)
 If it denies the element of the claim it is simply a denial; if it says even if you prove all the elements you still can’t
recover it is an affirmative defense.
 A statutory cap on damages is an affirmative defense that is waived if not raised in the pleadings. Ingraham v. United
States (The government ∆, sued in a malpractice action, attempted to raise on appeal a state cap on general damages
in malpractice actions).
o Mitigation of damages could be an affirmative defense and you can assume if not raised in the answer, will be
waived.
3. Other defenses of a preliminary nature.
4. Counterclaim or cross-claim making allegations of liability owed the answering party. (federal practice only)
Truthfulness in pleading
Requires that all parties be candid and proceed in good faith.
R11 addresses whether there are reasonable grounds.
 Looks at the evidence to make sure there is sufficient evidence
 Only used 23 times
 Prevents frivolous lawsuits and incentivizes lawyers to stop and think before they file
 Policy: judicial economy: save time of judges, attorneys, time of the courts (public cost)
 Disadvantages of R11: this would be the end of the case and the SOL may have run so if its dismissed they may not be
able to bring it again
 Technique to delay and use resources of π , intimidation tactics
 Force information from the π
 If violation of Rule 11, sanctions are mandatory and can include a post trial ruling and fee shifting. Purpose of
sanctions is deterrence & compensation. ‘
 Law firm responsibility: absent exceptional circumstances a law firm must be held responsible for the actions of its
employees (vicarious liability respondat superior) to encourage them to make sure their employees are following the
rules
 Represented parties: the court must not impose a sanction against a represented party
Amendments to Pleading R15
12(b)(6): needs to give the defendant notice of the nature of the claim being brought against them. As such, it would seem to
state a claim upon which relief can be granted under the standards of Rule 12(b)(6). However, the Supreme Court’s decisions
in Twombly and in Iqbal impose new requirements on federal pleading. The Supreme Court rejected the convention that the
complaint would be adequate if there were any set of facts that would entitle the plaintiff to relief. The Court required greater
factual details and stated that mere conclusions would be inadequate to carry the burden of stating a claim. Determination of
plausibility is highly reliant on the particular context and draws on the experience and discretion of the judge. (Courts have
disagreed as to whether these decisions apply to all cases or only to antitrust claims involving official immunity Supporting the
more narrow interpretation of these opinions and the adequacy of the complaint if Form 11. (consider whether form is similar
to the allegations). Under Rule 84 this form is adequate under the Federal Rules. If Form 11 states a claim for relief, it seems as
if the paragraph should be deemed sufficient as well.
Consider:
 Do the allegations contain a number of conclusions
 Are they short on facts
Under Rule 11 the signature to a pleading is a representation that “after an inquiry reasonable under the circumstances” that
the factual contentions have evidentiary support and that the legal contentions are “warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Defendants are likely
to argue that there is not a reasonable basis to allege that the defendants caused the plaintiffs injury. The plaintiffs will have to
demonstrate that they have conducted a reasonable inquiry and that they have facts to support these allegations. The plaintiffs
can use 11(b)(3) to their advantage. That provision allows the plaintiffs to avoid Rule 11 sanctions by using the language that
identified allegations “will like have evidentiary support…”
: Discovery
Analysis of Discovery Problem
Clear meaning of language of the rule
 Mandatory language? (“must”); or permissive? “may”
 Does the use of the term throughout the rule support the reading of the clear meaning?
If rule does not mention issue, contrast with other treatment of issue in other sections
 If there are closely linked sections and some of them address the issue and one leave it out, drafters
intention is that they probably did not want to permit it
Reasons & Policy for one way or the other
 Ambiguous term should be interpreted in this light to prevent abuse…
 Consistent with the purpose of the rule?
 Necessary to avoid absurd result
Check Notes on Amendments for Relevant Info
Formal Discovery vs Informal Discovery
Formal discovery involves both parties and takes place under the discovery rules of the FRCP. Informal discovery can take
place without the involvement of the other party and is undertaken by the parties themselves outside of the discovery rules.
Types of Disclosure required
Before making her disclosures, a party has an obligation to make a reasonable inquiry into the facts of the case. Rule 26
requires parties to require disclosure of all information “then reasonably available” that is not privileged or protected as work
product which is relevant to any party’s claim or defense. A party is not relieved from her obligation to disclose merely
because she has failed to complete her investigation or because another party has not made his disclosures or made them
inadequately.
Basic devices
 Depositions
 Interrogatories
 Request for production of documents and orders for inspection
 Mental and physical examinations
Initial Disclosures
Without waiting for a discovery request, a party must provide to other parties:
 Names, addresses, and telephone numbers of individuals likely to have discoverable information, unless party wants it
solely for impeachment
 Copies or descriptions of documents, electronically stored information, and tangible things
 A computation of damages claimed by the disclosing party
 Copies of insurance agreements under which an insurer might be liable for the judgment
These disclosures must be made within 14 days after the meeting of the parties required by R26(f) unless a different time is
set by court order or stipulation.
a) Exemptions from Initial Disclosures
Actions to review an administrative record, actions to enforce arbitration award, pro se litigation brought by
prisoners, actions to quash or enforce subpeonas, or habeas corpus petitions are not required.
Purpose: without the basic information covered by these disclosures, the trial could be unorganized and chaotic, and could be
decided on surprise rather than evaluation of the evidence
Scope of Discovery
1. In General
Discovery is available for:
 any matter (documentary evidence & individuals)
 That is nonprivileged
 Relevant to a party’s claim or defense
 Reasonably calculated to lead to the discovery of admissible evidence
o Not necessarily admissible at trial
Policy: equal access to the facts
Purpose: help determine how likely a party is to prevail if a trial takes place; preserve relevant information that might
not be available at trial, ascertain the issues that are actually in controversy, obtain evidence that will lead to
admissible evidence on the issues that in dispute
2. Exceptions:
a. Privileged matter (attorney-client, self-incrimination, spousal, physician-patient)
 Procedure for claiming privilege: When a party claims that certain discoverable information is privileged trial
preparation material, he still must disclose the existence of, but not the content of, information to the
opposing party so the opposing party may assess the claim of privilege
 Totally immune from discovery, unlike attorney work product which may be revealed if there is need
b. Attorney work product.
 Discoverable only upon showing “substantial need” and to avoid “undue” hardship in obtaining the material
in an alternative way.
o Has to do with cost, uniqueness
Policy: every attorney should feel free to investigate all aspects of a case, whether favorable or unfavorable to
his client, without fear that the opposing party simply could obtain unfavorable matters and put them to use
Policy: promote full investigation by each party of his own case
Alternative: If can’t get info because of attorney work product, you can always subpoena
Potential for abuse: could be used to hide evidence or avoid revelation of the facts of a case

If the court orders the disclosure of work product, it must take steps to avoid the disclosure of the mental
impressions, conclusions, opinions, or legal theories of the disclosing party.
o Documents and tangible things
o In anticipation of litigation
o Otherwise discoverable under (b)(1)
Note: redaction may not be effective because just the way we structure a document gives you information on how
we think.
 Material obtained by counsel in preparation for litigation is the work product of the lawyer, and while such
material is not protected by the attorney-client privilege, it is not discoverable on mere demand without a
showing of necessity or justification. Hickman v. Taylor (Five crew members drowned when a tug boat sank.
In anticipation of litigation, the attorney for Taylor, ∆, the tug owner, interviewed the survivors. Hickman π,
as representative of one of the deceased brought this action to obtain copies of the statements Taylor’s ∆
attorney obtained from the survivors.)
Disclosure of Expert Testimony R26(b)
A party must disclose to other parties the identities of expert witnesses expected to be used at trial. This disclosure generally
must be accompanied by a report prepared and signed by each expert stating her qualifications, the opinions to be expressed,
and the basis for those opinions. This disclosure must be made at the time directed by the court or, at least 90 days before
trial; if evidence is intended solely to rebut another party’s disclosure of expert testimony, it must be made within 30 days of
the evidence admitted. Necessary to prepare for adequate cross-examination.
Witnesses must provide a written report with:
o Opinions
o Basis for opinions
o
o
o
o
o
Facts & dates on which opinion rests
Exhibits
Qualifications
List of all other cases they’ve participated in
Compensation
Policies
 Need for protection is great because if the expert renders an unfavorable report, which could be presented by
the opposing party at trail it would have a devastating effect on the party who employed the expert
 Opposing party must be able to ascertain exerpters theories and opinions are in order to be able to counter
them at trial
Pretrial Disclosures
At least 30 days before trial, a party must disclose to the other parties and file with the court a list of the witnesses she expects
to call at trial, the witnesses she will call if the need arises, the witnesses whose testimony will be presented by means of a
deposition and a transcript of pertinent portions of the deposition, and a list of the documents or exhibits she expects to offer
or might offer if needed.
Policy: scope of discovery is very broad to discover facts concerning what the opponent intends to prove as well as
to obtain info supporting one’s own case
Payment
o Court must require that a party seeking discovery
o Pay the expert a reasonable fee for time spent responding to discovery and;
o For discovery under D, also pay the other party a fair portion of the fees and expenses it reasonably incurred
in obtaining the expert’s facts and opinions
Experts Employed Only For Trial Preparation
A party may not discover facts known or opinions held by an expert (no report, no right to depose) who has been retained or
specially employed only for trial preparation unless:
o Exceptional circumstances where it would be impractical to obtain information another way
o Perhaps unique expert or a unique test (like a test which destroys the material)
o Under R35(b) – Physical & Mental Examinations; Examiner’s Report
Discovery of Electronically Stored Information
The Rules require parties to discuss the discovery and preservation of electronically stored information and to report to the
court on those discussions. Electronically stored information need not be produced if the responding party identifies it as from
a source not reasonably accessible because of undue burden or cost. Even then, the court may order the information produced
for good cause, but it may also impose conditions such as cost-shifting or cost-sharing.
a. Format for Producing Electronic Documents
A requesting party may specify the form or forms for producing electronically stored information, and the responding
party may use that form unless it objects. If the request does not specify the form, the responding party may use any
form in which that information is maintained or that is reasonably usable by the responding party.
b. Safe Harbor Provision
Rule 37(e) creates a safe harbor that would forbid sanctions against parties who lost information in the ordinary
course of operating an electronic information system.
Types of Discovery
A. Pre-Action Depositions
B. Discovery of Documents & Things; Order for Physical & Mental Exam.
1) Oral depositions of a Witness, Including a Party-Witness R30
May be recorded by audio, audio/visual, or stenographic means. May be taken through the phone or other remote
electronic devices. All parties may pose questions to the deponent. A party (ambiguous) may not take more than 10
depositions, nor depose the same person more than once, without leave of the court. A deposition may not exceed one
day of seven hours.
Advantages: permits an attorney to observe a potential witness which gives indication of how
witness will do on the witness stand, pin down details, offer the opportunity to shape the
questions in light of the type of answers that are received
Disadvantage: expensive b/c of attorney’s time, transcripts, witness fees and expenses;
reimbursement takes a long time;
a) Compulsory Appearance of Witnesses
1) Subpeona Not Needed For Parties
It is not necessary to serve a subpoena on an adverse party or an officer, director, or managing agent of a
party to compel appearance; the notice of deposition is sufficient. For organizations, the notice may name the
organization and state with “reasonable particularity” the matters to be covered. The organization then
designates individuals to testify. [FRCP 30(b)(6)
2) Nonparties Should Be Subpoenaed
If the witness to be deposed is not a party to the action, he should be subpoenaed because if the witness fails
to appear, that party may be ordered to pay the reasonable expenses, including attorney’s fees for wasted time.
May be served by any person who is not a party and is not less than 18 years od. A person who fails to respond
to subpoena will be subject to a citation for contempt of court.
b) Written Depositions
Same as oral in terms of requirements but less wait time. Attorney need not be present. Used infrequently,
primarily to obtain routine information. Less expensive than oral. Disadvantages: difficult to draw a set of
questions without sense of what individual responses will be.
2) Interrogatories to the Parties R33
R33 provides for written interrogatories to other parties and written answers by the party to whom the
interrogatories are directed. The party must respond not only with facts which she herself knows, but also with facts
that are available to her. The party may also be asked to give opinions, even on the application of law to facts. Initially,
the requesting party may not serve more than 25 interrogatories without court order or stipulation, and leave may be
granted to serve additional ones.
Advantages: Inexpensive and useful way to get basic information from people who are knowledgeable. Also, enable
inquiring party to obtain all the information from a party, not just that known by a series of individual
deponents. The answers to interrogatories will be used to develop subsequent discovery.
Disadvantages: Answers are not spontaneous, answer may be cryptic, ambiguous; easy to ask questions and impose
heavy burdens on adversaries and cross the line into harassment.
Discovery and Production of Property
R34 provides for the production by a party (or, if accompanied by a subpoena, a nonparty) of physical material, including
documents relevant to the pending action; and (ii) that a party be required to permit entry onto land for relevant testing. For
nonparty limited to when summoned to a deposition and subpoenaed.
Advantages: may be important to the development of someone’s case
Disadvantages: problem in determining whether respondent can refuse a request on the grounds that the property is not in his
control, may thwart value of discovery by delivering documents in jumbled mass; provisions are cumbersome and
restrictive; need to use deposition increases cost needlessly; protect the rights of nonparties & prevent unwarranted
invasion of property; documents require extensive analysis and review; extremely burdensome, infringe on privacy
5) Physical and Mental Examinations
a. Order for Examination
R35 provides for an independent physical or mental examination of a party when that party’s physical or mental condition is
in controversy. Such exam is available only if ordered by the court, on showing of good cause. Allows exams by a “suitably
licensed or certified examiner,” which would include, for example, doctors, dentists, occupational therapists, and any others.
b. Report of Findings
The person examined may request a copy of the examiner’s report, but if that person so requests or takes a deposition of the
examiner, she waives any privilege and must produce, upon demand, copies of her own doctor’s reports of any other
examinations of the same condition.
Advantages: gives opposing party a method by which his own medical professionals have an opportunity to observe
the person to prepare for trial and testify
Disadvantages: intrusive and invasion of person’s privacy,
4. Protective Orders R26(c)
A party or any person from whom discovery is sought may move for a protective order in the court where the action is
pending to limit the nature and scope of examination or to terminate examination if discovery is abused.
o Movant must have in good faith conferred or attempted to confer with other affected parties in an effort to resolve the
dispute
o Court may, for good cause, protect party/person from annoyance, embarrassment, oppression, or undue burden or
expense
o Good cause is when disclosure will work a clearly defined and very serious injury
o Court balances the harm that will be suffered if the order isn’t granted with harm that will be suffered if it is
granted
o Payment of expenses
o Whose conduct required
Purpose: eliminate situations in which discovery may be used for harassment or to oppress an opposing party while at the
same time not prohibit litigant from obtaining information necessary to allow proper presentation of the case; Prohibit the
dissemination of information about risks to public health and safety acquired through discovery to avoid prejudice, public
outcry, effects on reputation; other concerns are prejudice and tainting the jury pool
Policy for protective orders: will encourage private agreements about what information will be obtained, speeding up discovery
process and avoid disputes
Policy against protective orders: I mposes on First Amendment rights, if there is a risk to public health and safety need
regulatory agencies & individuals to take action to reduce their harm; FDA/doctors/potential patients may need info about
risks
5. Sanctions R37
The trial judge has wide discretion to determine what is appropriate and reasonable, given the nature of the discovery sought
and the reason for refusal. Courts often attempt to issue sanctions that will encourage compliance, rather than be punitive.
Court may assess a party who has been unreasonable in refusing discovery to pay opposing party’s expenses of the motion,
including reasonable attorney’s fees. Disobedient party can be held in contempt of the court (fined or jailed). Lesser penaltiesL
striking a portion of the party’s case, granting a default judgment, dismissing the action, limiting the testimony available at
trial, or assessing the expenses of the opposing party in obtaining sanctions.
Art. 3
§ 1331
§ 1332
§ 1367
§ 1391
§ 1404
§ 1406
§ 1441
§ 1446
§ 1447
§ 1652
§ 2072
§ 2111
R3
R4
R5
R7
R8
R9
R10
R11
R12
Establishes judicial branch
Federal Question
Diversity of citizenship; amount in controversy; costs
Supplemental jurisdiction
Venue Generally
Change of Venue
Cure or waiver of defects
Removal of civil actions
Procedure for removal
Procedure after removal
State laws as rules of decision
Rules of Procedure and evidence; power to prescribe
Harmless error
Commencing an Action
Summons
Serving and Filing Pleadings
Pleadings Allowed; Form of Motions and Other Papers
General Rules of Pleading
Pleading Special Matters
Form of Pleadings
Signing Pleadings, Motions, and Other Papers
Defenses and Objections
R13
R14
R15
R18
R20
R26
R30
R33
R34
R35
R37
R42
R45
R56
R83
R84
F 11
ER 1.1
ER 1.2
E.R 1.3
E.R.
1.4
E.R.
1.6
E.R.3b
E.R.3.3
E.R.3.4
E.R.4.1
E.R.3.6
E.R.4.2
Counterclaim and Cross claim
Third-Party Practice
Amended and Supplemental Pleadings
Joinder of Claims
Permissive Joinder of Parties
Duty to Disclose
Depositions by Oral Examination
Interrogatories to Parties
Producing Documents, Land Inspection
Physical and Mental Examinations
Failure to Make Disclosures or to Cooperate in Discovery
Consolidation; Separate Trials
Subpoena
Summary Judgment
Rules by District Courts; Judge's Directives
Forms
Complaint for Negligence
Competence
Authority between Client and Lawyer
Diligence
Communication
Confidentiality of Information
Meritorious Claims and Contentions
Candor Toward the Tribunal
Fairness to Opposing Party and Counsel
Truthfulness in Statements to Others
Trial Publicity
Communication With Person Represented by Counsel