Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
PERSONAL JURISDICTION
a. *This is a waivable right; failure to object means you waive your right and
validity of jurisdiction doesn’t matter
b. Constitutional Grounds for State Court Jurisdiction
i. Minimum Contacts
1. Purposeful Availment Factors (Solely Δ’s activities)
a. Long-term relationship?
i. Yes, then MC (Burger King)
b. Seeking to Serve Forum Market
i. Minimum Contacts: Court splits; No
definitive decision (Asahi)
1. 4 votes: Stream of Commerce, plus
Int’l Shoe: Quality
Purposeful Availment. Asahi not
and Nature of
guilty
contact analysis
2. 4 votes: Stream of Commerce w/
knowledge products will be sold in
forum state, no “plus purposeful
avail”
c. Foreseeability?
i. Reasonable foreseeability not by itself
sufficient; anticipate being “haled” to court
d. Intended Harmful Effect?
i. Knowingly Causing Harmful Effects
Outside of State; subject to jurisdiction
(Calder, in re Enquirer)
e. Unilateral Act?
i. Did not Purposely Avail. Just because Δ
sold car that ended up in OK, doesn’t mean
it personally availed itself to the OK system
(WWVolks)
ii. Though a single act can be enough, if claim
arises out of that act (i.e. sick from dogs.)
Jurisdiction if:
 Minimum Contacts
 Property seized w/in forum
 Contact so substantial there is
general jurisdiction
 Δ consented
 Δ personally served in state
2. Reasonableness
a. Fair Play and Sub. Justice Factors: M.C. must
precede:
1. Burden on Δ
2. Forum state’s interest
3. П’s interest
4. Interstate judicial system’s interest
5. States’ shared interest in substantive
policy
ii. Presence of Δ’s Property in Forum
1. True In Rem: Real Property is sufficient.
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
2. Quasi In Rem: Stock, etc., probably not sufficient (Shaffer)
– CHECK
a. If property is otherwise completely unrelated to suit,
presence alone will not suffice New Quasi-In Rem
Doctrine
 Single Contact (sold dogs
once)
 Medium Contact (Sold a
few times)
 Great Contact (Sold a hell of
a lot)
NOTE: Voluntary
Appearance in a state for
an action is sufficient to
validate jurisdiction; a
person can make a special
appearance, only raising
jurisdictional questions to
avoid implementing
jurisdiction.
iii. General Jurisdiction
1. General: [In]substantial M.C. (not necessarily limited to instate activities) (Helicopteros) Party has substantial contact
w/ forum state; suit does not have to arise from incident in
state.
2. Specific: Claim arising from specific incident in state
iv. Consent
1. Forum Selection Clause (Carnival Cruise)
v. Service
1. In-State Service of Process (Transient Jurisdiction)
a. M.C. and F.P.S.J. only guiding line when Δ is
outside of state; if already in state, not a question.
Court held in split decision Δ was under state
jurisdiction, although MC questionable, and suit not
related to activity in state
i. Split Court: All agree Burnham had M.C.
but split on method of decision in re
contemporary understanding of Pennoyer.
What do we need to know about this case?
c. Venue
i. Venue: Like Personal Jurisdiction, is the privilege of Δ to choose
ii. §1391: Venue Provisions
1. §1391(a) – Diversity Cases:
a. Judicial District where any Δ resides, if all Δs
reside in same state (NOTE: District, not entire
state)
b. Judicial District in which substantial part of the
events or omissions giving rise to the claim
occurred, or substantial part of property subject to
action is situated
c. Judicial District in which any Δ is subject to
Service of Process not
personal jurisdiction at the time action is
sufficient to establish venue
commenced, if no district in which action is
otherwise brought
2. §1391(b) – All Other Cases:
a. Same as (a)
b. Same as (a)
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
c. Judicial District in which any Δ may be found, if
there is no district in which the action may be
otherwise be brought
3. §1391(c) – Residence of Corporations:
a. Any district in which the Δ is subject to personal
jurisdiction.
d. Forum Non Conveniens
i. What is the identifying factor to know to use this?
ii. Federal Court:
1. When transfer to another federal court can solve
inconvenience problem, judge might not dismiss.
2. BUT, when proper forum is another country, judge can
dismiss
iii. Procedure: Δ must make motion to dismiss
iv. Factors:
1. Private Factors
a. Access to Proof: will it be easier in another forum?
b. Cost of obtaining attendance of witnesses
c. Need to have jury view premises
2. Public Factors
a. Local Interest: in having local controversies decided
at home
b. Interest in having trial in forum familiar w/law
c. Unfairness of burdening citizens
3. K Limitations Forum
a. Carnival Cruise
4. Weight given to П where venue and jurisdiction satisfied,
BUT not so when П is foreign (Piper)
5. Fact that law is less favorable in more convenient forum is
NOT a factor.
6. Court can condition the dismissal w/ stipulation that statute
of limitations will not be tolled in new location, etc.
e. Notice
i. Method: Reasonable Efforts must be made (Mullane)
1. Personal Delivery: traditional means
2. Mail: Mail to those whose addresses are known (Mullane)
a. Class Actions: Must be mailed to all identified
members
3. Posting: may NOT be sufficient
4. Newspaper Pub.: NOT sufficient
ii. Summons (Rule 4): How well do we have to know?
1. (a) Form
2. (b) Issuance
3. (c) Service by Whom
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
4.
5.
6.
7.
8.
II.
Reasons for Federal:
 Broad Discovery
(pre-trial devices)
 Location: metro
areas
 Source of Jurors
 Speedy Trial
a. Non-party: 18 or over; US Marshall
(d) Waiver of Service
a. Δ can waiver service, to (d)(2) “avoid unnecessary
costs of serving summons”
b. The court must impose costs of service on Δ
c. By waiving service, court gives Δ 60 days rather
than 30 days to respond to complaint
(e) Service
a. Pursuant to law of state, or
b. Service to personally
c. To dwelling place w/person of suitable age and
discretion
d. To an agent by appointment of by law
(h) Service Upon Corporations
a. Basically same rules as (e)
(k) Territorial Limits of Effective Service
a. Service of Summons is effective to establish
jurisdiction over person
i. Who is under jurisdiction of local superior
court
ii. Impleaded parties served within 100 miles
of court
iii. Parties subject to interpleader jurisdiction
iv. Who have sufficient contacts w/ to
constitute jurisdiction within US in general
(m) Time
a. Must be served within 120 days of complaint
filing
SUBJECT MATTER JURISDICTION
a. Introduction
i. *Not waivable claim; it’s a must, and therefore can be objected to
anytime
ii. State court can hear any claim; federal court cannot – hence, this
section
1. Exclusive Federal Cases:
a. Patent, Anti-trust, securities
iii. If concurrent state and federal jurisdiction – П can choose
b. Federal Question Jurisdiction (§1331)
 Claims arising under the constitution (also admiralty, ambassadors)
ii. Federal Q. Must be Present in Complaint: Can’t anticipate Δ will
rely on federal issue in defense; must be part of П’s complaint.
(Motley)
iii. Federal Element must be Essential
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
Congressional Authority to
Change: Congress can alter
the “arise under”
jurisdiction, e.g. Congress
could require all §1331
claims to entail an amountin-controversy requirement
as found in §1332, or
reverse Mottley and allow
federal jurisdiction over
federal issues raised by Δ, as
well as by П
1. П cannot inject an arbitrary issue into complaint simply to
qualify for federal Q jurisdiction.
2. Why is it the law that a case genuinely raising an issue of
federal law not qualified for Fed. Jurisdiction? It allows
the courts to more easily determine jurisdiction from the
outset of П’s pleadings, before hearing Δ’s answers
iv. Concurrent Jurisdiction: Most federal questions may be brought
under state court jurisdiction as well
v. Federal v. State Claim: Even if П is able to bring federal claim but
decides to pursue state claim, Δ cannot demand removal to federal
court solely because П could have brought federal claim. This is
П’s decision. Though if claim does include federal claim, Δ can
have removed to federal court.
c. Diversity Jurisdiction (§1332)
i. Minimal Diversity: at least, but not necessarily more, than one П
and Δ from different states
ii. Diversity of Citizenship
1. Citizens of two states
a. Factors:
i. Domicile (intend to stay indefinitely); mere
residence isn’t sufficient
ii. Corporation: Citizen of both state of
incorporation and principle place of
business
b. Joinder of Non-Diverse 3rd Parties:
i. Owen Equip. v. Kroger: If non-diverse 3rd
party is added to claim after in court, claim
must be dismissed for violation of §1332.
c. Date of Determination – Time of Suit:
i. Diversity need only exist at time of suit
ii. If NY has accident w/ FL in NY, then moves
to FL and sues FL, does not have DJ, even
though at time of accident had DJ - at time
of suit both live in same state. Conversely, if
from same state when claim arose, if they
live in diff’t states at time of suit, Diversity
if okay.
iii. Amount in Controversy
1. Amount in Controversy must be over $75,000
2. *If a suit over non-money claim, amount relief is in relation
to value to either Δ or П depending on case precedent
a. Good-Faith Claim: Must be good-faith claim that
damages are over $75,000. If Judge decides from
the pleaded facts there is “legal certainty” П could
be only awarded less, the amount-in-controversy is
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
not met. Does not matter if П actually recovers as
much, if made in good faith.
b. Rules of Aggregation:
i. П may aggregate unrelated claims against
single Δ to meet $75,000
ii. Cannot aggregate claims on different Δ to
reach $75,000
iii. Two П may not join claims to aggregate
$75,000 (unless “common, undivided
interests” such as joint property owners)
iv. Desired Punitive Damages may be added to
aggregate a claim over $75,000
v. §1367: Supplemental Jurisdiction
Aggregation: Untraditional, minority of
courts hold as long as one П meets $75,000,
other П’s can add claims under
supplemental jurisdiction.
vi. Intangible Damages: Pain and suffering,
emotional distress, loss of goodwill in
business, or punitive damages.
d. Supplemental Jurisdiction(§1367)
 Goal: To promote judicial economy and consistency of decision
 Formally known as Pendant and Ancillary; now just supplemental
i. §1367(a)
1. Additional Claim: П w/ jurisdictionally sufficient claim
SJ Policy
(usually federal Q), could join a related claim against same
a. Efficiency
Δ, even though second claim not w/in court’s jurisdiction.
b. Federalism
c. Interpretation
a. UMW v. Gibbs: If one claim is constitutionally
d. Justice for Parties involved
proper under Article 3, then fed. court has right to
e. Convenience for Parties
hear entire dispute, regardless of independent
involved
jurisdiction over individual claim. But court decides
f. Scope and Limits of Judicial
whether to hear the other, non-federal claims; it
Power (What role do federal
courts play? Do we leave them
does not have to. (Same “nucleus of common fact”).
with less power, and relinquish
Court has jurisdiction over a Δ’s non-federal claim,
more power to the legislator?)
as long as it reasonably relates to original suit.
2. Additional Party: Fed. court may retain juris. over nondiverse Pendent Party Δs, as long as claim against this
additional Δ arises from same common nucleus of original
federal claim against 1st Δ.
a. (If A sues B in federal court over a federal claim, A
may bring in C, as long as part of original
“common nucleus of facts”, even if C is not
diverse.) (Finley v. US, overruled by House Report)
3. Three-Part Test for SJ:
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
NOTE: In Diversity Case,
can’t add 3rd party Δ if not
diverse as well; to add, there
must be independent Federal
Claim (Kroger)
Piper Aircraft: this
case was removed,
then transferred,
then dismissed for
forum non
conveniens.
a. Does supplemental claim arise from same “common
nucleus of fact”? Section (a) ↑
b. Is there statutory authority for supplemental claim?
(§1367 grants broad authority, generally sufficient
in most cases unless violating section (b) Diversity)
Section (b) ↑
c. If (i) and (ii) are met, court must decide whether to
impose discretion. Section (c) ↓
ii. §1367(b) Jurisdiction over claims by П cannot defeat diversity
jurisdiction. If a third-party Δ is attached to the suit, and the suit is
based solely on §1332, then third party must be Diverse from П.
(Kroger) This only applies to П claims – not claims by Δ against
third party Δ, which can be non-diverse.
iii. §1367(c) Discretion to Decline Jurisdiction:
1. Claim raises novel or complex State issue
2. State Claim predominates over federal claim
3. Court dismissed all other claims of original jurisdiction
4. If exceptional reason to decline jurisdiction
e. Removal
i. §1441(a): Authorizes removal of cases to Federal court where
court had original jurisdiction but П chose state court.
1. Δ’s Choice: If claim is also federal in nature, and П brings
in state, Δ has the right to remove to Federal Court. If there
are two Δs both must agree to remove.
2. Choice of Court: Case can ONLY be removed to the
federal court under same jurisdiction as state court being
removed from. No State to State; No Federal to State; No
Federal Court other than the court of the same jurisdiction.
a. Removal Exception: §1441(b): If a non-resident П
sues Δ in Δ’s state, Δ cannot remove on account of
Diversity. (Reasoning: There is no need for Δ to
remove – he ostensibly won’t face discrimination in
his own state and does not need to go federal.)
b. Even if a second Δ from a third state is involved,
because the first Δ is from the forum state, the case
cannot be removed.
3. If case contains separate and independent claim based on
federal Q, Δ can REMOVE ENTIRE CLAIM
4. As long as federal court has jurisdiction, doesn’t matter if
state court did or did not have jurisdiction
5. Procedure: Notice of Removal must be within 30 days of
receipt of complaint; or 30 days after case otherwise
becomes removable.
6. Remand: if it turns out federal court does NOT have
jurisdiction
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
Federal/State Court’s Must Meet ALL three requirements
 Personal Jurisdiction
 Subject Matter Jurisdiction (Federal, then Diversity/Amount
suffices – but must still have Personal Jurisdiction per M.C.)
 Venue
STATE v. FEDERAL LAW (Substance v. Procedure)





Common Difficulty of
Multi-factoring approach;
apples v. oranges, etc.
State and Fed. interests of
different types.

Here, the federal court had
power via FRCP4 (d)(1) to
serve process; didn’t violate
constitution, etc., so “twin
aims” not important cuz not
decisional, but procedural
General Rule: Substantive Law – state; Procedural Law – federal
Brought under either Diversity Cases or Supplemental State Claim (in Federal
Question Cases) – NOT USED IN TEST CUZ SHE SAID ONLY DIVERSITY
Federal Law always bound by state statutes in state claims
York Test: To decide whether state law is “substantive,” ask whether it is outcome
determinative (statute of limitations ran on state claim; federal statute more flexible;
court ruled for state claim because “substantive” more than “procedural”)
Byrd Test: “Balancing Test”
Still in use for
i. Relation b/w state rule and underlying state right
cases where
“uniformity” still
1. Must follow state rules that define “rights and obligations.” Whether
state procedural practice is an integral part of substantive right, or state in question.
followed for more arbitrary “house keeping” reason
ii. Countervailing Interest in Federal System
1. Strength of Federal Policy, as here right to jury in federal court vs. trial
by judge in state. Narrow range; fed. not interested in substance of law,
only streamlining its own process.
iii. Likelihood of Effect on Outcome: York Test: “Outcome Determinative”
Hanna Test: (in re FRCP 4(d)(1) allowing service at spouse’s home, rather than
personal service as required by state law in case.)
i. Distinguish b/t rules under Rules Enabling Act or purely decisional rules
ii. If under REA, then must be applied unless violates Constitution (unlikely)
iii. If purely decisional, apply if
Twin Aims
1. Avoids forum shopping, and
HARLAN: If oversees
2. Inequitable/Discriminatory Litigation
primary human conduct –
should be state job.
Procedural - federal
a.
Modern Test for Federal Jurisdiction
i. Is there a True Conflict between State and Federal Law?
No Conflict:
1. No: No choice necessary
 No federal rule at all
2. Yes, then
 No direct conflict (Armco); though fed.
ii. Is Federal Law grounded in Constitution
complaint filed per FRCP 3 within two
year statute of lim., the state complaint not
1. Yes: then Federal law trumps
served until after lim. – court ruled state
2. No, then
statute integral part of state law – rejected
iii. Is Federal Law grounded in Act of Congress (statute)?
 Narrow Construction to Avoid Conflict:
1. Yes; then Federal law trumps if
FR should be given plain meaning:
(Armco) FRCP 3 for when fed. rules begin
a. Is constitutional; falls within powers of Congress (regulation
to run, not state rules. FR should be
of procedure and “arguably procedural” matters, and
interpreted w/ sensitivity for state law
b.
Does not violate independent federal constitutional right
(Gasperini), conflict between right of state
2. No, then
appellate court to review excessive jury
awards vs. 7th Amend. in federal court:
iv. Is Federal Law Federal Rules of Civil Procedure?
right of trial by jury preserved, and no fact
1. Yes; then trumps per REA (28 U.S.C. §2072) if passes validity test:
tried again, reexamined, etc. Ruled DC to
a. Must deal with practice, procedure, or evidence, and
use state review (per “twin aims”)
b. Does not Abridge, enlarge, or modify any substantive right
 Parallel Rules: Very similar/same rules
2. No, then
Forum Shopping: Not always an evil;
v. Is Federal Law judge-made (e.g. equitable doctrine of laches)?
can give a parties options of forums; is a
problem when used unfairly, which is why
Forum Shopping should always be viewed in
tandem w/ [In]equitable Administration of
Laws
Probably start
here for exam;
prior questions
not relevant to
her exam
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
1.
III.
Yes; then trumps, unless doesn’t pass “twin-aims” test
a. Discouragement of Forum Shopping
b. Avoidance of Inequitable Administration of Laws
i. (i.e., one party has advantage by being able to choose
certain jurisdiction, while other party can only choose
one: Black and Yellow Taxicab)
PLEADING
a. Complaint
i. Short and Plain Statement (Rule 8(a))
1. Short/ plain statement upon which jurisdiction depends
2. Showing that pleader is entitled to relief
3. Demand for judgment for relief
4. Specificity (Rule 9(b))
a. In claims of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated w/
Leatherman?
particularity. BUT malice, intent, knowledge, and
other conditions of mind not need specificity.
b. Rationale: protects Δ against unfounded claims that
damage reputation
ii. Same Case/Technical Inconsistency (Rule 8(e)(2))
1. П may plead two or more cases, even within same court,
regardless of technical consistency (case name)
2.
b. Motion to Dismiss 12(b)
 Served w/in 20 days after service of summons
 Δ must include any defenses below in original 12(b) objection or
they are waived, with exceptions noted (12(g) and (h))
 Rationale: provides Δ immediate dismissal if court suit not valid;
correction of defects if not outright dismissible
Greenbaum: post
office worker; lawyer
forgot to file 12(b)(1),
but court said he could
do it any time.
i.
ii.
iii.
iv.
v.
vi.
vii.
12(b) 1 Lack of Sub. Matter Juris. (not automatically waived)
12(b) 2 Lack of Personal Jurisdiction (waived if not raised)
12(b) 3 Improper Venue (waived if not raised)
12(b) 4 Insufficiency of Process (waived if not raised)
12(b) 5 Insufficiency of Service of Process
12(b) 7 Failure to join a party (not automatically waived)
12(b) 6 Failure to State a Claim (not automatically waived)
1. Says: even if П were to prove all allegations in complaint,
she would not be entitled to any relief
2. П has opportunity to amend complaint before dismissal
(per Car Carriers case)
3. Test sufficiency of Complaint
a. Need not contain “facts” (Rule 8(a)(2))
b. Court takes presented facts as true and judges
sufficiency
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
c. Liberal standard for sufficiency: SC held dismiss
only if certain П cannot prove a set of facts (Conley
RR civil rights case)
d. *Exception (fraud must be specific facts per 9(b))
c. Motion for more Definite Statement (Rule 12(e)) – rarely granted
i. Only granted when the pleading under attack is so vague and
ambiguous, would be unreasonable to require moving part to reply
d. Lawyer’s Duty (Matters Certified by Lawyer’s Signature) (Rule 11)
 Rationale: promotes self-policing by lawyers; deters frivolous claims
 Concerns: unduly constricts creative advocacy
 Before 1983 amendment, was only “Good Faith” standard
 But Rule may be brought against: person resisting discovery; person
bringing frivolous appeal; attorney acting in bad faith; tax payers
brining frivolous claims
i. Reasonable Inquiry
1. Lawyer looked into sufficiency of legal and factual grounds
for case (evidentiary support)
2. Party may make allegation w/out evidentiary support, if
likely to have it after further investigation
ii. Supported by Law
1. Warranted by existing law
iii. Not for Improper Purpose
1. Not to harass or cause unnecessary delay in case
iv. Sanctions
1. Sanctions “shall” be imposed – not “may”
2. Meant to deter attorneys from violating rule
3. Court has wide latitude: may be even friendly conversation
in the court w/ attorney, a hard-nosed reprimand,
compulsory legal education, monetary sanction.
v. *Safe Harbor Provision
1. Motion not to be filed w/court until 21 days after served:
gives party chance to amend or withdraw filing.
e. Answers
i. Procedure: Must file w/in 20 days after service of process (unless
Δ waives service; then 60 day extension)
ii. Admission
iii. Denial
1. Denial for lack of information – party does not have
sufficient knowledge to form belief as to truth of allegation
iv. Affirmative Defenses (Rule 8 (c))
1. Self-defense, consent, justification, privilege, assumption
of risk, lack of consideration, etc.
f. Counter-Claims (Rule 13)
 Only between П and Δ (not Δ and Δ, etc.)
 Need not be related to П’s claim
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION




Requires reply by П
Can be a basis for joinder of additional parties
Basically new claim – so susceptible to 12(b) motions; П must answer
Set forth as part of answer to original complaint
i. Compulsory Counter-Claim
1. Based on same transaction as П’s claim (supplemental);
must be brought now, or will be barred (per 13(a))
ii. Permissive Counter-Claim
1. Based on independent ground (must satisfy own subject
matter jurisdiction); can bring entirely diff’t complaint
iii. Joinder
1. Permissive Joinder (must have subject matter J)
g. Cross-Claims (Rule 13)
i. Only between co-defendant’s
ii. Same transaction/occurrence against П
iii. Never compulsory (Δ can bring suit in later action)
iv. Must be part of Δ’s answer
h. Amendment and Supplemental Pleading (Rule 15)
i. Scope
1. Relation-Back Rule: must be of same
occurrence/transaction as original complaint
2. Consideration: Whether amendment is prejudice to other
party
3. Continuance: If it is prejudice, court can grant a
continuance to allow time to gather new evidence
ii. Time Limit
1. (c) General Rule: П can usually amend complaint after
statute of limitations has run as long asserted complaint out
of same transaction or occurrence or changes the name
of party against whom suit is brought
2. Misnamed Δ can be changed; add’l Δ and originally
unknown Δ NOT, if after statute of limitations has run.
iii. Prior to Trial
1. As a Matter of Right
a. (a) Each party may amend once by right, either
before responsive pleading or if pleading is one to
which no responsive pleading is permitted and
action has not been placed on calendar, at any time
w/in 20 days after pleading is served.
2. By Permission of Court
a. Liberally granted prior to trial and thereafter
iv. At Trial
1. (b) Shall do so freely, if it appears the amendment will aid
in the presentation of the case and will not prejudice the
objecting party in her action or defense.
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
v. After Trial
1. Can be made on appeal
vi. Objections
1. Opponent has unreasonably delayed raising the issue
2. You have been prejudiced in preparation of case by delay
3. New issue raised in Bad Faith (to confuse jury, etc.)
4. New issue is futile
a. Court can grant continuance to allow you to deal w/
these problems
vii. Supplemental Pleading (d)
1. Purpose: to call attention to material facts that occurred
subsequent to filing or original complaint.
2. There is no right to bring supp. Pleading – Is permissive
i. Judgment on Pleadings
i. Like 12(b)(6) – challenge pleadings on grounds that they are
insufficient to establish any valid claim or defense
ii. Made any time after pleadings
iii. Challenge ONLY sufficiency of pleading in re legally meritorious
contention
iv. Heard before commencement of trial
j. Interlocutory Appeal 28USC §1292 (b)
i. П can appeal on a pleading decision (e.g., refusal 12(b)(6)), if
1. Question is one of law
2. Question is controlling
3. Substantial grounds for differing of opinion
4. Immediate appeal will materially advance the ultimate
termination of litigation
ii.
IV.
Dismissal
a. Voluntary (Rule 41 (a)(1))
i. П has right to file for dismissal
ii. Must be filed before opponent’s answer or motion for SJ
iii. П limited to one dismissal; any more are w/prejudice to Δ
iv. BUT, court can allow other motions for dismissal is it sees fit
b. Involuntary (Rule 41(b))
i. Adjudication on Merits (i.e. res judicata)
ii. Can be for 12(b)(6), SJ, etc. – basically, a lot to do w/ pleadings.
c.
V.
JOINDER/ INTERPLEADER/ CLASS ACTIONS
a. JOINDER of Issues (Rule 18)
i. (a) In claim, cross-claim, counter-claim, etc., may join as many
issues as necessary
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
b. JOINDER of Parties (Rule 19 and Rule 20)
 Court has power to order separate trials
 Right to join parties is liberally construed
 Entire claim may be dismissed if improper (Rule 21)
 Evaluated case-by-case basis
 Can be raised in pre-answer motion; answer
 Cannot be waived
 Rationale: if substantial injustice would happen if party was not joined
(by either П or Δ), then court should try to fix
i. (Rule 20) Permissive Joinder: Three Requirements
1. Right asserted jointly, severally, or in alternative
a. Jointly or Severally
BE sure to note Kedra here If question arises
i. Each П not required to have interest in every
Also: Policy for allowing joinder; also allow
reason for improperness of joinder. Kedra sys
cause of action; if several П’s, have option
of the same pattern of occurances
to seek separate or joint relief – likewise, if
several Δs, relief can be sought against them
jointly or severally
b. In the Alternative
i. П not sure which Δ caused harm – can file
claim against each to determine
2. Same Transaction/Series of Transaction
a. Broadly construed: same causal relationship or
interrelation.
3. Common Question:
a. At least one question of law or common fact to all
parties joined
b. Test: Are issues in 2 claims factually intertwined?
ii. (Rule 19) Compulsory Joinder – look at rule 19(b) per class
discussion
 Required for any person w/Material interest in case AND
whose absence would result in substantial prejudice to the
absentee or other parties
1. Traditional Approach: Necessary v. Indispensable
a. Necessary: Party must joined if possible; but if
interests severable and court can fairly adjudicate ok
b. Indispensable: Interests so non-severable, court
can’t proceed w/out – not joined, case dimissed
2. Modern Approach: Practical Considerations (Rule 19(a))
a. ***Any person subject to service of process and
within subject matter jurisdiction shall be joined if:
i. Complete relief cannot be granted to other
parties in his absence
ii. His interest is so great, that to proceed w/out
would substantially prejudice because:
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
1. Impair ability to protect interest in
later proceedings
2. Expose parties already in court to
risk of double liability or
inconsistent obligations
b. Court’s factors in determining:
i. Extent to which decision would be
prejudicial to absent party
ii. Whether relief could lessen or avoid
prejudice
iii. Whether relief rendered w/out would be
adequate
iv. Whether П has other adequate remedy if
action is dismissed for non-joinder
v. Generally, what’s in equity and good
conscience?
c. MISJOINDER and NON-JOINDER (Rule 21)
i. Misjoinder is NOT grounds for dismissal; parties may be added or
dropped by court at any stage in process as long as just.
d. INTERPLEADER (Only an introduction)
Is this the same as the
impleader? Find out. She says
i. Ability to bring in parties to settle dispute amongst themselves
it’s rule 14 in 557 example, #4.
(e.g., insurance co. bringing in two parties fighting for rights to
figure this shit out you little
bitch.
dead grandma’s goods)
1. Statutory Interpleader
a. Only $500 in controversy minimum; permits
nationwide service of process; venue wherever one
Not needed
or more claimants live
2. Non-Statutory Interpleader (Rule 22)
a. Jurisdictional and procedural requirements same as
normal civil action
e. CLASS ACTIONS (Rule 23)
i. Four Prerequisites (a)
1. Numerosity
a. So many that joinder of ALL parties impractical
i. No minimum #
1. Size of each member’s claim
2. Likelihood individual suits brought
3. Public importance of right
4. Geographic Location of class
ii. No maximum #
1. Must be manageable
2. Must be ascertainable
2. Commonality
a. Common Questions of law or fact
Falcon: Court observed #2 and #4 merged into
one question: whether named П’s claim and
i. Must predominate
class’s claim are so interrelated that interests of
class members will be adequately represented in
their absence. Even though workers
discriminated in different way
(hiring/promotion), still a class
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
ii. Problem of individual damages can deter
court from allowing – but not bar always
3. Identifiable Class? (Dudziak’s addition to list)
a. Who is in/who’s out? Are class members
identifiable?
4. Typicality
a. Claims of persons maintaining action must be
typical of those of the class generally.
5. Adequacy of Representation
a. Person representing must be able to adequately
represent everyone in class (his burden to prove)
i. Inadequate Rep.
1. If rep. is inadequate, but no person
objects and case is decided, absent
member of class can later attack rep.
as being inadequate (Hansberry)
ii. Four Grounds for Action (Rule 23(b)) must have one of four
1. (a) Incompatible Future Standards
a. If Δs as individual suits would be subject to
incompatible standards in future, or
(b) Limited Funds (not included in her notes?)
b. Δ available assets would be insufficient to pay all
claims if brought under individual suit
c. When individual litigation might result in
judgments that would be dispositive in re members
not included (this is her (b), as opposed to mine)
2. Beneficial Injunctive/Declaratory Relief
a. If Δ’s action affected class, and injunction would be
beneficial to entire class
3. Claim Predominance (most controversial)
a. Common questions of law or fact predominate over
questions affecting individual members
b. Class action must be superior to other means of
adjudicating AND
c. Best notice practicable must be given to class
members (her addition)
i. Relevant Factors
1. Interests of individual members
2. Extent of any litigation in progress
Not included in hers
3. Desirability of consolidating
4. Probable difficulties
4. ADD Rule 23(c)(2) per Duziak
a. In re (b)(3)
i. (a) Court will exclude member from the
class if the member so requests by a
specified date
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
ii. (b)
iii. (c)
iii. Jurisdictional Requirements (she didn’t get into any of this)
1. Subject Matter Jurisdiction
a. Diversity of Citizenship
i. Only named П and Δ must have complete
diversity
b. Jurisdictional Amount
i. ASK – UNCLEAR whether needs to be
$75,000 each member, or just the one
member suffices
2. Personal Jurisdiction
a. Court does not need jurisdiction over absent П class
members
3. Conflict of Law
a. Various state laws can be hurdles for national class
action. ASK -UNCLEAR
4. Statute of Limitations
a. Statute is tolled at commencement of class action
VI.
DISCOVERY
a. Scope and Limit of Discovery
i. Discovery in General (Rule 26)
Policy for Discovery:
1. (b) Generally allowed to discover any matter that:
Sanctions for failing to
 Reduces chances of trial
a. Relevant to subject matter
provide relevant evidence
by ambush
b. Not unreasonably cumulative or burdensome
 Allows parties to assess
merits of case
c. Not privileged (attory/client)
 Reduces drain on
ii. Required Disclosures (Rule 26(a)(1))
resources of court,
because often narrows
 Initial Disclosure w/in 10 days: name, address, telephone of
scope of dispute
person likely to have discoverable information; copy or
 Encourages settlement
description of documents; computation of damages
(including supporting docs for computation of damages);
expert testimony 90 days before trial; witness testimony 30
days before trial)
iii. ATTORNEY CLIENT PRIVILEGE? NO per Dudziak
iv. Protection of Trial Prep. Material (work prod.) (Rule 26 (a)(5))
1. Mutual knowledge of relevant facts for litigation is
Hickman: tugboat acc. Case; court found
essential; either party in good faith can compel other to
attorney did NOT have to run over certain
info, as it was attorney work privilege.
disclose whatever relevant facts in possession, if not
The request was for interviews done
otherwise privileged, without regard to the time-honored
before trial, including phone convers, etc.
defense of "fishing expedition”
Public Policy
2.
Party may obtain documents and tangible things prepared
Rationale
in anticipation of litigation ONLY upon showing that the
party that seeks discovery has substantial need of the
material AND the party is unable without undue hardship
to obtain the substantial equivalent by other means:
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
3. Protected Material: mental impressions, conclusions,
opinions, or legal theories
b. Basic Discovery Devices
i. Informal Discovery
1. Site visits
2. Non-Party interviews
3. FOIAs
ii. Mandatory Pre-Discovery Conference (Rule 26(f))
1. Parties must meet to discuss nature/ basis of claims; any
chance of settling. (21 days before scheduling conference)
iii. Depositions (Rule 30)
1. Opposing counsel may object to certain questions, but only
in re Form of Questions and whether it is Privileged
Information
a. Five Reasons for Oral
i. Give Lawyers idea of demeanor of witness
ii. Answers have degree of spontaneity
iii. Attorney can follow up on new information
iv. Can be used in trial
v. Non-parties may be deposed
iv. Interrogatories (Rule 33)
1. Written
a. Three Reasons for Written
i. Good way to get detailed/uncontroversial
information early on
ii. Inexpensive to prepare and serve
iii. Available for use at trial
v. Request for Admissions (Rule 36)
1. Q&A used to further explore specific contention (cheap,
easy to send)
vi.
VII. SUMMARY JUDGMENT (Rule 56)
 Has moving party made sufficient legal showing?
 If so, was opposing party given chance to respond?
 Is there a triable issue?
a. Standard
i. If no genuine issue of material fact, AND
Dudziak says these are the two
ii. And moving party is subject to judgment as a matter of law, then
conditions necessary – tease
these out
SJ per Dudziak
iii. If moving party makes showing, then burden shifts to non-moving
LOOK AT
party to prove there is genuine issue of triable, material fact
DIFFERENT
SECTIONS OF
iv. Δ can move for SJ at any time
THIS RULE (b)(c),
* All reasonable inferences in favor of non-moving party
ETC. What do we
need to know?
b. Procedure
What is duty in
i. П must wait 20 days after commencement
56(e) Figure out
case law here!!!
ii. Partial SJ may be granted on some claims
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
iii. Don’t examine the credibility of witnesses
iv. Must make Prima Facie showing (Dissent: Brennan; Celotex); get
into cases here for more
c. Materials Considered
i. Pleadings, Affidavits, Discovery Materials, Oral Testimony
ii. NOTE: Don’t examine credibility of witnesses – only existence of
it.
VIII. TRIAL
Crude Timeline
 Complaint
 12(b) motions
 Answer
 Motion for voluntary or
involuntary dismissal
 Rule 16 scheduling
conference
 Discovery
 Motions to Amend
 Settlement Discussion
 Motions for Summary J.
 Rule 16 Pretrial
conference
 Trial
 Motion for DV/JML
 Verdict
 Entry of judgment
 Motion for JNOV/JML
 Motion for New Trial
 Appeals
 Motion to vacate
judgment
 Execution of Judgment
a. Rights
i. Right to Due Process
1. Federal (5th Amendment)
2. State (14th Amendment)
ii. Right to Hearing
1. Pre-Termination Hearing
a. Right to hearing prior to termination of social
security benefits (Goldberg)
2. Risk of Error Analysis: Pre-Term Hearing/Right to
Lawyer
a. Private Interest
b. Risk of Erroneous Depravation of Rights
c. Probable value of increased procedure
iii. Right to Lawyer
1. Right to lawyer to be decided on a case-by-case basis.
What else should be known about this? (Lassiter)
iv. Right to Jury Trial
1. 7th Amendment right
a. “In suits in common law, where value in
controversy shall exceed $20, the right of trial by
jury shall be preserved”
v. Right to Court for Divorce Proceedings
1. Certain fees impede indigent’s right to remedy situation
only remedial through the court system. Marriage is a grand
social institution. (Boddie)
vi. Alternatives: Arbitration (ADR)
1.
b. Verdicts
i. Dismissals
1. See above section
ii. General Verdict
1. Most common; implies finding for party on every material
fact submitted to jury
iii. Special Verdict
1. Jury finding on specific factual issues
2. Rationale: Improve deliberation by packaging dispute into
distinct components; aid jurors in separating facts and
18
14th
amendment
relating to
jury trial
does not
deprive
Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
Compare DV/ JNOV:
Judge should deny JV, let
go to jury, and then if
disapproves, JNOV.
Rationale: if reversed on
appeal, only need to
reinstate jury verdict,
rather than entire new trial,
as would have been case if
judge had granted DJ
before went to jury
avoiding confusion; ensure a truly unanimous decision;
facilitate appellate process by spelling out the premises
underlying jury’s ultimate conclusion.
iv. Directed Verdict (Judgment as Matter of Law) Rule 50(a)
 Made at close of evidence
 Case-by-case determination
 Court may not weigh evidence (only decide if genuine issue
for jury to examine)
 Evidence presented in light most favorable to non-moving
party
1. Standard: Whether there is legally sufficient basis on which
jury could find for non-moving party.
a. Moving-party with burden of proof:
i. Evidence must be REALLY compelling to
deny opposing party, because burden of
proof is on moving party and it’s generally
unfair.
b. Non-moving party with burden of proof:
i. Granted only is non-moving party has NO
SCINTILLA of proof (Galloway) –
basically, if any proof, no motion.
2.
v. JNOV (Renewed Motion for Judgment as Matter Law) Rule 50(b)
1. Can only file if already filed DV, before case went to jury
2. Standard: should only be granted if there is no substantial
evidence to support decision of jury
3. Procedure: Party must make Motion: court cannot make
motion on its own.
4. Timeline: No later than 10 days after judgment
5. May be joined with motion for new trial
vi. New Trial Motion Rule 59(a)
 Judge may order new trial on all or part of factual issues in
dispute
 No later than 10 days after judgment
1. Can be granted for: Improper attorney argument to jury;
false answer by juror; improper delay for personal
convenience of judge; Incorrect ruling on admission or
exclusion of evidence; party was unfairly surprised by
evidence; new evidence; verdict contrary to law.
vii. Motion to Vacate Judgment Rule 60
1. Reasons
a. Clerical mistake
b. Mistake, inadvertence, surprise, excusable neglect,
newly discovered evidence, fraud or misconduct,
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
void judgment, changed circumstances, or any
other reason justifying relief.
2. Time limit: Within “reasonable time”, but no later than one
year after judgment rendered for mistake, inadvertence,
surprise, excusable neglect, newly discovered evidence, or
fraud.
IX.
APPEAL


Instill confidence in trial process
Check/Balance on arbitrariness of Trial Court judge
a. The Appeal
i. Court will only hear alleged errors from Trial Court
ii. Error must have “materially” affected outcome
iii. Generally no new factual findings (defer to authority of trial J.)
iv. Generally no question over lower court’s use of discretion
1. Rule 52 does not require only clearly erroneous standard of
review for fact finding and use of discretion; BUT most
courts only review those “clearly” erroneous lower court
decisions
v. Most courts require finality in lower court’s ruling first
1. Exceptions to Finality
a. Interlocutory Decision
b. Writs of Mandamus
c. Collateral Order Doctrine
Exceptions:
Some courts give
case RJ effect,
even if case is on
appeal. Differ per
jurisdiction.
Also, in equity
cases governing
future ongoing
future conduct,
i.e. child support,
court retains
right to change
in re inflation,
etc.
X.
Exceptions (sometimes):
 Dismissals usually not RJ
cuz court never got to
merits.
 BUT: 12(b(6): because П
has plenty of time to amend
a failure to state claim.
 Some states automatically
postpone RJ until after
appeal
PRECLUSION (RES JUDICATA - Claim)
b.
c.
d.
e.
f.
g.
If П wins: Merger (claim merges
into judgment. Can bring 2nd suit to
enforce judgment.) If П loses, Bar:
claim bars further action.
Add in Hansberry policy section here per Dudziak
Is an affirmative defense; must be pleaded or else lost (FRCP 8(c))
Put in Complaint/Answer
Entire Cause of Action (as opposed to particular issue in case – issue preclusion)
Two components: (1) claim preclusion, (2) issue preclusion
Three Requirements for CLAIM PRECLUSION
i. Final Valid Judgment on Merits
1. Final:
a. Prior adjudication sufficiently firm for conclusive effect?
b. Invalid, if:
i. No Sub. Matter Jurisdiction, No Due Proc., No Per J.
2. On Merits
a. If case tried and “determined”
i. Barred by RJ: SJ, J on pleadings, Non-suit, DV,
verdict, default judgment, etc.
ii. Not Barred by RJ: Lack of jurisdiction, improper
venue, dismissal w/out prejudice, etc.
ii. Same Claims in both Suits
1. Traditional Test
a. Same Primary Right and Duty
b. Same Evidence
20
May be Compulsory
Counter-Claim Rule
FRCP13 (a):
determines defenses
or counter-claims
arising out of same
transaction must be
brought in 1st trial
(?) is this federal
rule or not?
Policy:
Finality for
parteis
Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION
c. Mere Change of Legal Theory
Modern Test
a. Transactional Test (Same Nucleus of Facts) (Rest. §24)
Car Carrier: П tries to bring same case w/
i. Convenient trial unit of facts, etc. like Rule 20
different legal theory – barred. П
ii.
Same claim, different theory not allowed (negligence
argument is old way of thinking – now,
claimed; if strict liability relevant also, must be
look more at facts and NOT legal theory.
claimed now)
iii. Same Parties in both Suits
Do examples p.474 supp,
1. Δ can be sued by another П on like charges in 2nd suit
2. Same П can sue second Δ in separate suit- considered “separate” claim
(Rule 20(a))
2.
COLLATERAL ESTOPPEL (Issue Preclusion)
h.
i.
j.
II.
Parklane Hosiery: П1 sued and
court found Δ issued misleading
statement; П2 sued in new suit
over statement, and Δ was barred
from litigating the claim again
even though not allowed jury trial
cuz 2nd trial not allowed. .
NON-MUTUAL COLLATERAL ESTOPPEL
a.
b.
c.
Mutuality: this is the old
doctrine that barred a 3rd party
(C) from taking advantage of a
ruling between A and B,
because he was not a mutual
party to suit 1. THIS HAS
BEEN ABANDONED ON
FEDERAL LEVEL. Party C
can now use first ruling to his
advantage.
Key to non-mutuality is not
whether were both parties in 1st
suit, but whether they were
parties against each other.
Affirmative Defense – must be pleaded or else lost
Bars relitigation of specific issue decided in earlier case
Do examples p. 490 supp.
Requirements for ISSUE PRECLUSION:
i. Issues must be the same
ii. Issue need not be explicitly decided (as Holt rape: never found “rape” explicitly
because only general verdict)
iii. Issue must been litigated and decided and pertinent to ruling (Rest. §27)
1. Though some courts will allow decisions, even if not “pertinent” to
previous ruling, if 2nd court can tell that they were given full
consideration and not just decided on the periphery
Defensive:
i. Δ seeks to prevent П from asserting claim that П already litigated and lost
against another Δ (more favorable than offensive)
Offensive:
i. П seeks to prevent Δ from relitigating an issue already unsuccessful in previous
suit (A proves B’s clause invalid; C sues B in new suit over clause – B is not
allowed to try and prove clause valid because already held invalid
Problems/Extra Considerations, (+) regular collateral estop. requisites. Rest. §29
i. Basically, did estopped party have FULL and FAIR opportunity to contest issue
in 1st action?
1. Whether 3rd party could have joined 1st suit, but decided to “sit it out”
to observe outcome. (supports denial of Non Mut. Coll. Est.)
2. Estopped party may not have litigated aggressively in first case if
stakes were small or forum convenient, and should be given the
chance to do so now.
3. Whether estopped party has procedural opportunities not available in
1st suit, but would be beneficial now. (i.e., if both suits in federal court,
probably no procedural differences)
4. Whether prior judgment was inconsistent with an earlier
determination, or was a compromise verdict (and thus not clear cut
enough to keep party from relitigating)
CLAIM PRECLUSION checklist
Judgment must be:
 On the same claim
 Final
 Valid
 On the merits
ISSUE PRECLUSION checklist
Issue decided in prior action was:
 Actually litigated
 Essential to first judgment
 Identical to issue present in instant action
 Party against whom issue preclusion is
sought was party to prior litgation
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Court needs PERSONAL JURISDICTION + SUBJECT MATTER JURISDICTION

Party against whom claim preclusion is
sought was a party to prior litigation
XI.
Remedies and Stakes – need Fuentes y carey cases here (10/21)
a. Forms of Relief
i. Sequester - (Writ of Replevin)
1. (Funtes) attach baseball so Fan1 can’t sell it before trial
Rule 64
ii. Preliminary Injunction:
1. So that Fan1 can’t sell the ball before the trial
iii. Affirmative Injunction:
1. (Walgreens) Do not allow Sara Creek to let another co. into
mall
iv. Temporary Restraining Order: Rule 65(b)
v. Temporary Injunction:
1. (ex parte): different than preliminary injunction. This is
designed to hold things in place for a limited number of
days, i.e. before Fan1 can sell the ball on E-Bay
vi. Money Damages (punitive)
b. Requirements of Preliminary Injunctions: (American Hosp. Supp.)
i. They have no adequate remedy at law and will suffer irreparable
harm is relief is not granted
ii. The irreparable harm they will suffer will outweigh the irreparable
harm the Δ would suffer from injunction
iii. They have some likelihood in the merits
iv. The injunction would not disserve the public interest
c. Standards for determining Relief
i. Posner: economical approach, using a method like the Mathews test
ii. Scope of Remedy = Scope of the violation
1. FOR HOSPITAL SUPPLY: take from the case only the
method that Posner uses – the rest of the decision is based
on contract stuff.
XII. Policy
a. Values at Stake in Procedural System
i. Economic Efficiency: Posner
b. Values in Litigation Participation: Michelman
ii. Dignity Values
iii. Participation Values
iv. Deterrence Values
i. Effectuation Values
d. Unsatisfactory Due Process Calculus: Mashaw
i. Private Interest
ii. Risk of Erroneous Depravation
iii. Probable Value
22