Introduction to the Adversary System
 FRCP—governing in federal district courts only, not appellate
 In Re BGC: example of the adversary system
o Lawyers as active advocates for their clients
o Judges have a more passive role
o Two partisan lawyers are more likely to uncover more facts
o Your case is only as good as the lawyer representing you
o Adversary system only works if your client actually suffers the consequences of
having a bad lawyer
Pleading
PLEADING
Validity of the Claim—Rule 8, 12b6 [ACCESS NOW]
Allocation (of the burden)—Rule 8, 9, 12 [GOMEZ]
Why is good faith an affirmative defense allocated to the defendant?
1) Fairness, access to evidence
2) History
3) Statutory silence, especially here in the case of 42 USC 1983
~purpose of the statute
~good faith is an affirmative defense to a complaint under 1983
Specificity, Consistency—Rule 8, 9 [McCormick]
Answers—Rule 8b, 8d [Fuentes]
Amendments—Rule 15 [Fuentes]
Sanctions—Rule 11 [Zuk]
1.
2.
3.
4.
5.
Common law pleading (writ system)
a. Each different form of writ began to have its own special language and procedure, its
own remedies
b. Easy to lose on a technicality, i.e. choosing the wrong writ
c. Purpose: narrow case down to a single issue
Code pleading (Field Code 1848)
a. Also known as Fact Pleading.
b. Sample procedure for all causes of action
c. Remains in California and New York
Notice pleading (FRCP 1938): Notice pleading requires very little of the pleader.
a. Difference from code pleading is laid out in the first three rules:
i. Rule 1: one set of rules for all civil suits; want just, speedy, and inexpensive
actions
ii. Rule 2: only one form of action, a CIVIL ACTION
iii. Rule 3: action is started by filing a complaint
Purpose of pleading—to provide notice to the other party of the action and the nature of the
contentions to facilitate informed preparation for discovery, settlement, or disposition
VALIDITY OF CLAIM: Access Now v. Southwest Airlines
a. The Court granted Southwest’s motion to dismiss. Southwest had moved to dismiss the
complaint on the grounds that Southwest.com is not a place of public accommodation
and therefore does not fall within the scope of Title III of the ADA. No nexus here, no
relationship to a physical establishment.
b. FRCP 8(a)—specifies the required components of a pleading in federal court.
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6.
c. The complaint set out a legal assertion that allowed the defendant to move for 12b6
dismissal: Motion to dismiss for failure to state a cause of action upon which relief can
be granted. This is appropriate when it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations. You have to look at the
plaintiff’s allegations in the light most favorable to them to determine whether the
complaint fails to state a claim of relief.
d. After a motion to dismiss is filed, the plaintiff is routinely given leave to amend.
e. Plaintiff here amended to say there was a nexus between the website and Southwest
Arlines’s travel service.
f. The purpose of this complaint was to establish whether or not a website was a place of
public accommodation.
g. There is the incentive for the complaint to be short and vague. With such a pleading, it
would be difficult to grant the 12b6 motion.
h. MOTIONS to dispose of a case based on the merits, not procedural reasons:
i. 12b6—failure to state a claim for which relief can be granted (general demurrer
in state courts) You want to survive the 12b6 motion so that you can get to
discovery. Why might a 12b6 be okay? You always have an opportunity to
amend your complaint, and this is a CHEAP way to get to appeals court. 12b6
means you do not have to go through trial.
ii. 56—Summary judgment
iii. 50a—directed verdict (judgment as a matter of law)
iv. 50b—jnov (judgment as a matter of law) “renewed”
v. 59—new trial
Three required elements of a complaint:
a. A short and plain statement of the grounds of the court’s jurisdiction
b. A short and plain statement of the claim showing that the pleader is entitled to relief
c. A demand for judgment for the relief the pleader seeks
ALLOCATION—
ALLOCATION ISSUE
PLAINTIFF
or
DEFENDANT
Element of Claim
or
Affirmative Defense
GOMEZ v. Toledo (1980)
Elements of a 1983 cause of action:
-Plaintiff must allege that someone deprived him of a federal right
-Plaintiff must allege that the person who deprived him of a right acted under color of state or
territorial law
EVIDENTIARY STANDARDS:
Preponderance of the evidence: almost all civil cases
Beyond a reasonable doubt: criminal cases
Clear and convincing evidence: used for things we want to be especially hard to prove
AFFIRMATIVE DEFENSES are allocated to the DEFENDANT to plead and prove
ELEMENTS of a CAUSE OF ACTION are allocated to the Plaintiff to plead and prove
ISSUE—whether or not defendant acted in bad faith, the Court holds that acting in GOOD
FAITH should be an affirmative defense because the DEFENDANT is in a better position to know
their own state of mind
GOMEZ: The plaintiff is not required to allege in the complaint that the defendant acted in bad faith
“Color of state” 42 USC 1983, Bottom of page 587
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Under this section, however, the official may be entitled to qualified immunity.
In the GOMEZ case, the respondent/superintendent was entitled to qualified immunity for acts done in
good faith. (Thus, the district court had erroneously concluded that the plaintiff was required to allege
bad faith in his pleadings).
~~~Looking at Section 1983, there is nothing in the language or the legislative history of section 1983
that says such a plaintiff must allege bad faith in order to state a claim of relief. Only TWO allegations
are required!
(1) The plaintiff must allege that some person has deprived him of a federal right
(2) He must allege that the person who has deprived him of his right acted under color of state or
territorial law (e.g. police force)
Since QUALIFIED IMMUNITY is a defense, the burden of pleading good faith/bad faith rests with
the defendant. The plaintiff is not required to anticipate the defense.
FRCP 8c lists 19 AFFIRMATIVE DEFENSES that must be pleaded by a defendant/party responding
to a preceding pleading.
Burden of Pleading—determines who must allege that element in the pleading
Burden of Production—the burden of placing sufficient evidence in the record supporting all essential
elements of her own claim to allow the finder of fact to find in her favor
Burden of Persuasion—describes the standard that the finder of fact is required to apply in determining
whether it believes that a factual claim is true—preponderance of the evidence/clear and
convincing/beyond a reasonable doubt
Burdens of production and persuasion are subsets of the burden of proof
RULE = he that pleads must prove, which means that the party with the burden of pleading also has the
burdens of production and persuasion
Once defendant asserts the affirmative defense of qualified immunity, then the burden is on the
plaintiff to prove the defendant acted unreasonably.
More specific pleading in cases of fraud or mistake
SPECIFICITY and CONSISTENCY
McCormick v. Kopmann (1959)
Page 601
--There is almost no federal rule on how specific pleadings must be
--Rule 9: Fraud and mistake must be pleaded with particularity but malice and intent can be stated
generally
--CONSISTENCY:
INCONSISTENCY in pleadings is permitted when you are unsure which version of the facts is
true. Trying to prove one claim to the jury is not allowed as evidence tending to disprove another
claim. As long as there is a reasonable basis for pleading each alternative, it is okay to plead
alternative allegations.
This case holds that PLAINTIFF CAN PLEAD INCONSISTENT COUNTS IN THE
ALTERNATIVE!
FACTS: McCormick was killed when a truck being operated by defendant Kopmann collided with
McCormick’s car. This was after McCormick was fed copious amounts of alcohol by the Huls.
Action brought by McCormick’s widow.
Count I: Kopmann (truck driver) is sued.
Count IV: Huls are sued.
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Kopmann claimed that the two allegations are fatally repugnant, because McCormick could not be free
from contributory negligence as alleged in count I if his intoxication caused the accident as alleged in
Count IV.
--Count IV is NOT a binding judicial admission! Says the court.
FRCP 8(e)2 (PAGE 42): A party may set forth two or more statements of a claim or defense
alternatively or hypothetically. This is regardless of consistency.
Kopmann is correct in asserting that the complaint contains inconsistent allegations. Counts I and IV
are mutually exclusive and the plaintiff may not recover under both counts. It does not follow,
however, that these counts cannot be pleaded together. If a plaintiff is in doubt as to the person from
whom he is entitled redress, he may join two or more defendants and state his claim against them in the
alternative. Further, here the injured party is deceased and so there is a real issue as to the true facts.
--------even if plaintiff had made out a prima facie case of McCormick’s intoxication for purposes of
Count IV under the Dram Shop Act, she made no showing of a causal connection between the
intoxication and the accident.
This is a change. The early approach did require consistency.
Now, allegations in a complaint are not held to be admissions!
EIGHT (8) RESPONSES TO A COMPLAINT
Four ways to respond to factual allegations:
1. DENY
2. ADMIT
3. “I don’t know” = DENY
4. FAILURE TO RESPOND TO FACTUAL ALLEGATIONS = ADMIT
5. Can file a motion, e.g. 12b6
6. Can assert affirmative defenses
7. Can file counterclaim
8. Do Nothing
What happens AFTER a complaint is filed?
~Complaint may not be served properly (RULE 4  Dismissed)
~Complaint is served but not answered (Rule 55  Default judgment)
~Complaint is answered and answer is filed (Proceed with litigation)
~Motion under Rule 12 is filed! (e.g. if 12b6 is granted, Plaintiff can APPEAL, if 12b6 is denied, then
you can answer within 10 days)
ANSWERS!
When you deny something in an answer, the plaintiff then had to prove it. If you admit it, the plaintiff
CANNOT bring evidence on the issue. The issue is just established as true.
A DENIAL has two consequences:
1) It imposes on the plaintiff the burden of proving the allegation denied
2) It ordinarily permits the defendant to introduce evidence that would tend to disprove the allegation
Rule 8(b): When a pleader intends in good faith to deny only a part or a qualification of an averment,
the pleader shall specify so much of it as is true and material and shall deny only the remainder.
Rule 8©: LIST of affirmative defenses (that is non-exhaustive)
Fuentes v. Tucker, Page 90-91 in the additional materials
Year: 1947
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The day of trial, defendant admitted liability for deaths of two kids by car crash. Jury awarded
plaintiffs $7,500 each and defendant appealed. Appellant claimed: trial court erred in permitting the
plaintiffs to present evidence of facts outside the issues framed by the pleadings.
After defendant admitted guilt, plaintiffs were nevertheless permitted to prove the circumstances of the
accident (D was drunk and kids were thrown 80 feet from car). D says this evidence was admitted in
error because it was not relevant to the amount of damages.
If an issue is removed from a case by admission in an answer, it is error to include the evidence if it is
relevant solely to that issue. In an action for personal injuries, where liability is admitted and the only
issue to be tried is the amount of damages, the force of the impact and the surrounding circumstances
may be relevant to indicate the extent of the plaintiff’s injuries. BUT SINCE this was a wrongful
death action, the manner in which the accident occurred, the force of the impact, or defendant’s
intoxication could have no bearing on the elements of the damages.
The evidence admitted was NOT MATERIAL to any issue before the jury and its admission was
ERROR!
EVEN STILL, this ruling does not alter the outcome in this case!
Court said that even though there was error, it was not PREJUDICIALLY ERRONEOUS!
AMENDMENTS
-Generally, amendments are freely allowed
-Abuse of discretion not to allow at least one amendment
-Rule 15a: When can a party amend a pleading?
~Before responsive pleading is filed (or if no response is required, then within 20 days of
serving the original pleading)
~By leave of court—granted freely when justice requires
~By written consent of the adverse party
Amendment to the pleadings is allowed liberally to allow pleaders to correct mistakes or to reflect facts
revealed throughout discovery.
-Rule 15(b)
***If issues not raised in the pleadings are tried by express or implied consent of the parties,
this rule directs that they be treated as if they had been raised in the pleadings and that amendment of
the pleadings be allowed to conform to the evidence presented
***If a party objects to the introduction of new evidence, this rule directs the court to allow
amendments of the pleadings freely when the presentation of the merits of the action will be subserved
thereby and the objecting party fails to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party’s action or defense upon the merits
Rule 16(e) provides that the pretrial order shall control the subsequent course of the action unless
modified by subsequent order.
SANCTIONS
Zuk case, page 611
Rule 11—No longer permits sanctioning in cases where there is no bad faith on the part of the lawyer
or the client
-Requires signatures on certain pleadings filed, certifies that the pleadings are true to the best of
your knowledge, process of imposing and limited sanctions
-Separate sections for court imposed sanctions and when Defendant motions for sanctions
-Claim must rest on existing law or on a non-frivolous argument for some extension or
modification of existing law
RULE 11, FRCP page 44. A sanction imposed for violation of this rule shall be limited to what is
sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.
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11.a. Requirement of a signature
11.b. By presenting to the court a pleading, attorney is certifying that to the best of the person’s
knowledge, information, and belief—
1) It is not being presented for any improper purpose, such as to harass or cause unnecessary delay or
needless increase in the cost of litigation
2) The claims, defenses, and other legal contentions therein are warranted by EXISTING law or by a
NONFRIVOLOUS argument for the extension, modification, or reversal of existing law or
establishment of a new law.
11.c. SANCTIONS. The party prevailing on this motion may be awarded the reasonable expenses and
attorney’s fees incurred in presenting or opposing the motion. Sanctions are to be limited to what is
sufficient to deter repetition of such conduct.
11.d. DISCOVERY is not covered by Rule 11
Rule 11—no one really ever files an improper purpose argument
Zuk v. EPPI (Eastern Pennsylvania Psychiatric Institute) 1996
--Zuk leaves EPPI in 1980, sues in 1994 under US Copyright Act
--This case involves Rule 11 sanctions and sanctions permitted under 28 USC 1927
The initial case was dismissed by Rule 12b6 motion, Dr. Zuk settled his liability but his attorney
LIPMAN appealed.
EPPI had films of Dr. Zuk’s sessions, and later Zuk wrote a book on the same topic, which he had
copyrighted. EPPI filed for sanctions on the ground that THE APPELLANT HAD FAILED TO
CONDUCT AN INQUIRY INTO THE FACTS REASONABLE UNDER THE CIRCUMSTANCES
and INTO THE LAW.
Reasonable inquiry under the circumstances  it is usually enough to ask the client.
(Side issue: Copyright Act 17 USC 505: The court properly awarded attorney’s fees, but since this is a
COST, liability is attached only to Zuk and not to Lipman. Attorney Lipman is not liable under the
Copyright Act to pay such fees).
The bad behavior here by Lipman was failure to make a reasonable inquiry into the facts and law
before filing a lawsuit. No bad faith involved, which is required for awarding $ under 28 USC 1927.
Substantive holding: The COPYRIGHT of the book afforded no protection to the films.
There was however NO ERROR in the district court’s decision to impose sanctions pursuant to
FRCP 11.
Plaintiff’s legal arguments were not warranted by existing copyright or property law. Copyrights do
not apply to any such preexisting material.
The 1993 Revision of Rule 11 makes it clear that the rule’s main purpose is to deter, not to
compensate. Monetary penalty is to be paid to the court.
--------------------------------A litigant CAN escape sanctions by withdrawing an offending pleading or
representation within 21 days of being served with a motion by an opposing party.
CD notes on PLEADING
--In modern procedure, pleading is not that big of a deal anymore.
IN THE PAST: Pleadings give notice to defendant, the pleadings involve the revelation of the facts
(fact pleading), issue formulation! Issues were identified and people went to trial on the issues.
MODERN TIMES—Now the only purpose is to give notice! There are other ways to get to fact and
issue revelation. No precise issue statement necessary!
FRCP 8A2—Short and plain statement indicating the pleader is entitled to relief. No facts necessary!
Just a legally cognizable claim for relief. This doesn’t even specify you need to state a claim for relief.
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The federal courts are to construe the pleadings liberally. Only reject if 12b6, failure to state a claim
upon which relief may be granted. This motion must be denied if the pleading might be read to
indicate that the pleader is entitled to relief. Very few motions under 12b6 are granted, but federal
courts are getting tougher about that. There are disfavored actions.
(1) Standard of particularity of pleading
(2) The special pleading rules FRCP #9
~9B: the circumstances of fraud must be pleaded with particularity. Fraud has historically been
a disfavored action. It is very hard to prove/disprove the elements of fraud. A plaintiff must plead
FACTS! Where are the documents, who committed the fraud, what did he do? High pleading burden.
~Defamation actions too, in many states.
~Pleading of conditions precedent, in a contract breach case. Modern contracts (insurance,
contracts, etc.) are complex and may have hundreds of conditions. Burden reversed here—all plaintiff
has to do is say that all conditions precedent have been satisfied.
(3) Amendment of pleadings, doctrine of relation back
FRCP 15: Sets up time frames and establishes standards for amendments. At the front end of
the case, you can amend freely before any responsive pleading is filed.
Amendments during pretrial process—the FRCP says amendments should be liberally granted.
It makes it clear that there are no instances when you deny an amendment during the pretrial process,
“freely given when justice so requires.”
Amendments at trial: yes, you can amend at trial. At trial, evidence may come in that is outside
the pleading. If the other side does not object, then the pleadings are viewed as having been
automatically added. Often times, the other side objects, saying the evidence is outside the pleading.
The rule is that: the court may allow the pleadings to be amended and shall do so freely when it is
justice to do so. Justice-seeking system. EXCEPT when the objecting party fails to satisfy the proof
that there will be prejudice.
TESTABLE ASPECT OF PLEADINGS: Relation Back of Pleadings.
~Relation Back of Amendments. Plaintiff might wake up and realize that she has a different
theory in the middle of the case. Issue of the statute of limitations having run…. The new claim will
be allowed to be entered but will relate back to the day of the original interposition of the complaint,
circumventing the statute of limitations. Under certain circumstances, the plaintiff is allowed to add
this “expired” legal claim. When can you allow this to happen? Under Code system, the new material
had to relate to the original cause of action, but this ties you back to the original writ system. Under
modern notions of relation back, the standard is no longer cause of action; the standard is: if the new
material emanates from the same transaction or occurrence from the original material, it will be
allowed to relate back. It has to arise out of the same transaction/occurrence. In diversity cases, allow
relation back whenever the law of the state allows relation back. In some states, relation back is
broader than just transaction/occurrence.
~Relation back re: addition of a party. A more delicate problem. You have to make sure that
that party has notice. 15c3: if you want to change a party, you must satisfy the transaction &
occurrence standard and within the limitations period and the service of process period, the party must
have received notice of action institution, will not be prejudiced in maintaining a defense on the merits,
and must know that he or she was the true defendant and but for the mistake would have been sued
originally. You cannot relate back something that was dead on arrival, if it was already time-barred.
Remedies


Complaint must set out a prayer for relief (Rule 8)
Plenary versus provisional remedies
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o Plenary remedies are awarded at the end of the lawsuit, after the defendant has had the
opportunity to be heard with respect to both liability and remedy. Plenary remedies can
be awarded only after defendant has had discovery and a full trial. Principal plenary
remedies are COMPENSATORY and PUNITIVE damages, INJUNCTIONS, and
DECLARATIVE JUDGMENTS.
o Provisional remedies may be awarded upon a proper showing at ANY time when a
lawsuit is pending. Provisional remedies = Attachment (the seizure of property to
prevent its destruction, dissipation, or transfer during litigation) and temporary
restraining orders/preliminary injunctions, which are aimed at stopping ongoing harmful
conduct during a pending suit.
 Compensatory damages (plenary remedy) usually do not include ATTORNEY’S
FEES. An award of full compensation thus falls significantly short of making
the plaintiff whole for her losses. [[Prevailing plaintiffs are allowed to recover
reasonable attorney’s fees from opposing party in state and federal civil rights,
antitrust, and regulatory cases]]
 Full compensation should include interest between the time that damages are
incurred and the time they are ultimately paid.
 INJUNCTIONS (Specific relief)
 A court order demanding the defendant perform, or refrain from
performing, a specific act. Injunctions derive from EQUITY. The
determination of facts relevant to issuance of an injunction is for the
judge and NOT the jury.
 A defendant who fails to obey the injunction may be held in contempt.
 Injunctions are available only when damages are inadequate.
 Specific performance is a type of injunction
 Punitive damages:
 Due Process concerns: Punitive damages must not be grossly excessive
given the wrong committed. The court looks at the reprehensibility of
defendant’s conduct, the severity of the harm inflicted as evidenced by
compensatory damages, legislative sanctions for similar conduct, ratios
between these and the punitive damages awarded.
Equitable Remedies: Injunction, specific performance, reorganization of financial affairs, suits to
determine title to land, constructive trust, rescission or cancellation of contract, quiet title, interpleader
Provisional remedies—a judicial order, obtained at an early stage of litigation, designed to stabilize the
situation pending the final disposition of the case or to provide security to plaintiff so that if she
succeeds, she will be able to enforce the judgment.
Attachment = seizure of property, after a preliminary showing of the validity of the claim being
enforced and of the need to prevent defendant from absconding with the property
TRO = a plaintiff will seek this if he needs to maintain the status quo pendent elite (during or pending
litigation). The TRO may be issued EX PARTE (with only the plaintiff present) if immediate relief is
necessary and the defendant’s presence cannot be secured in time for a hearing.
PRELIMINARY Injunction: Requirements
1) A need to maintain the status quo pending the outcome of litigation
2) A likelihood that plaintiff will ultimately prevail on the merits of the litigation
3) A difference in hardships between the plaintiff and defendant, such that plaintiff will be more
hurt if the injunction is denied than defendant will be hurt if injunction is granted.
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SEE FRCP 65!!! For Injunctions

Plenary—available at the time of judgment
o DAMAGES (jury)
 Preferred remedy in the United States, takes the remedy out of the judges’
hands, it is up to the parties to enforce the judgment
o Injunctions (judge  discretion)
 Court has the power to hold DEFENDANT in contempt of court if they do not
abide by the injunction
 Overturned by appeals court ONLY if there is a CLEAR ABUSE OF
DISCRETION
 Standards for granting an injunction:
 Irreparable injury
 Inadequate legal remedy
 Balance of hardships
 Public interest
 Discretion
o Declaratory judgment
o Weinberger v. Romero-Barcelo (Additional materials page 78)—Court wants the
discretion of whether or not to order the injunction because it involves the government
 Very few statutes which take away the court’s discretion of granting injunctions
 No real injuries, water is actually CLEANER because of the NAVY
 Balance the hardships between public interest (national safety) and residents
 Elements of FWCPA cause of action
 Discharge, pollutant, point source, did not have permit
WEINBERGER CASE: Important question regarding the power of the federal courts to
grant or withhold equitable relief for violations of the FWPCA. HOLDING: The Act
does not withdraw the court’s equitable discretion.
FACTS: The Navy had violated the Act by discharging ordnance into the waters
surrounding the island without first obtaining a permit from the EPA. The court
correctly was allowed to refuse to enjoin Navy operations pending consideration of the
permit application. Puerto Rico wanted the Navy to stop the bombings of the water.
(The Dean notes that the Navy WAS ordered to apply for a permit, and this is a
mandatory injunction).
Compare to: TVA v. Hill-----Held that Congress had foreclosed the exercise of the
usual discretion possessed by a court of equity. The court says that in such situations,
Congress envisioned the exercise of discretion. FWPCA directs an injunction when the
pollution presents an imminent and substantial endangerment to the health of persons or
to the welfare of persons. Here, the discharge by the Navy was not actually harming the
water.
DISSENT: While injunctive relief is not automatic, amendments to the FWPCA show
that Congress narrowed the courts’ discretion to choose a remedy. A general rule of
immediate cessation must be applied in all but a narrow category of cases.
TWO CRITICAL DISTINCTIONS;
(1) Distinction between cases in which only private interests are involved and
those in which a requested injunction will implicate a public interest
(2) Within the category of public interest cases, those cases in which there is NO
danger that a past violation of law will recur have always been treated differently from
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those in which an existing violation is certain to continue. (See HECHT v. BOWLES
case: no injunction necessary because previous violations were inadvertent and the
defendant had taken vigorous steps toward preventing recurrence). On the contrary, the
NAVY’s violation WILL continue!
Side note on this case – if the district judge ordered an injunction for the navy/cabinet
and the cabinet does not follow, then the district judge will look powerless
SHOULD YOU GRANT AN INJUNCTION????????????????????
 An injunction should only issue when it is necessary—irreparable injury and lack of adequate
legal remedy (although it is easy for a judge to say why its inadequate)
 EQUITY versus COMMON LAW—tradition
 Weigh hardships to plaintiff and defendant
 Take into account the public interest
*Provisional—available before judgment
RULE 64—All remedies available for seizing person or property in the state will be available
in the federal court located within that state.
Standards—same as plenary injunction with likelihood of success on merits
Attachment/Garnishment
ATTACHMENT = seize articles and assets in Defendant’s possession (but are not the
subject of the lawsuit)
GARNISHMENT = seize assets of Defendant in hands of a third party
REPLEVIN = seizing property wrongfully in the possession of another
RULE 65—Preliminary injunction, temporary restraining order
--Have a trial on the merits right away
--TRO can be obtained WITHOUT notifying the other side
--Typically expires in ten days and may be extended only another 10 days before a
hearing is held
--Preliminary injunctions last longer than TROs; Same standard as granting plenary injunction
and a likelihood of success on the merits.
BOTH require some bond—insurance policy purchased by party seeking injunction against the
risk that the injunction will be wrongly issued and harm the other party
*Costs of litigation
THREE ELEMENTS of total cost of litigation:
1) COSTS (Filing fees)
2) Attorney’s fees (Bulk of total expenses)
3) Litigation expenses (Expert witness fees, paralegal fees, copy costs, etc.)
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POSSIBLE FEE RULES!
~Each side pays own regardless of who wins (American rule for attorney’s fees and litigation
expenses). Therefore, anything the plaintiff recovers is reduced by what is owed the attorney.
Plaintiffs with weak claims can use the threat of litigation to extract settlements when
defendants conclude that a successful defense will cost them more in attorneys’ fees
than they will pay in an early settlement.
~Loser pays winner (American rule for costs, otherwise “English rule”)
~Losing Defendant pays winning Plaintiff (Otherwise each side pays own)
~Losing Plaintiff pays winning Defendant (otherwise each side pays own)
~P always pays both
~D always pays both
~Government always pays both
~Each side pays own but by contract Plaintiff’s attorney gets nothing except a percentage of
recovery from Defendant
There are TWO MAJOR EXCEPTIONS to the American Rule:
1. Cases in which the losing party’s claim not only fails but fails so badly or outrageously
that it is later determined to have been brought in bad faith… Rule 11 SANCTIONS,
Attorneys’ Fees
2. Fee shifting in favor of the private attorney general—the litigant who prevails in a claim
involving the public interest
Private costs of litigation (as opposed to public costs)—attorneys’ fees (largest component), expert
witness fees, costs of hiring court reporters, various other expenses.
In civil litigation, the vast majority of plaintiffs retain their lawyers on the basis of a CONTINGENT
FEE. No legal fees are recovered except if there is a settlement or judgment.
HOURLY FEES are common for business defendants.
Costs—the general American rule is that the successful litigant recovers COSTS from his opponent,
with COSTS here leaving out attorneys’ fees.
*General rules have exceptions—statutes can provide for fee-shifting
EVANS v. JEFF D. (Page 112)—Even if a statute provides for the award of reasonable attorney’s
fees, the court is NOT obligated to invalidate a term of a settlement agreement which waives the award
of attorney’s fees.
SECTION 1988—IN CIVIL RIGHTS ACTIONS, losing defendant pays winning plaintiff’s attorney’s
fees, otherwise each side pays its own costs but parties can contract around that rule. The COURT
MAY ALLOW the prevailing party a reasonable attorney’s fee in enumerated civil rights actions.
PLAINTIFF = Class of handicapped children in Idaho
Defendant = Governor
Plaintiff’s lawyer is from Idaho legal aid society
RULE 23: you can sue on behalf of a class of affected people, the attorney here took up the cause,
representing the children.
Rule 23(e) requires court approval of the terms of any settlement of a class action. Rule 23(e) does not
give the court power in advance of trial to modify a proposed consent decree and order its acceptance
over either party’s objection.
The Court had NO DUTY to reject the proposed settlement because it included a waiver of statutorily
authorized attorney’s fees. Johnson had no “ethical obligation” to seek a statutory fee award.
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Looking at the text of the Fees Act, its text provides no support for the proposition that Congress
intended to ban all fee waivers in settlements.
IMPLICATIONS—if settlements were restricted in this way, settlements would not happen.
The settlement signed waived attorney’s fees. After signing, the attorney filed a written motion
requesting the court to approve the settlement except for the provision on costs and attorney’s fees.
Johnson contended that the petitioners’ offer had exploited his ethical duty to his clients.
SETTLEMENT = the process is less costly and shorter, which benefits everyone. A rule allowing the
waiver of attorneys’ fees promotes settlement!
DISSENT in Evans v. Jeff D.  With such a holding, it will be more difficult for civil rights plaintiffs
to obtain legal assistance. The whole purpose of the Fees Act was to make it easier for such plaintiffs
to get representation. Defendants in civil rights cases will always urge on for fee waivers then.
Civil Rights Attorneys’ Fees Awards Act: The prevailing party is allowed recovery of fees. The Act
does say that a plaintiff should not be assessed his opponent’s fees unless a court finds his claim was
frivolous/unreasonable/groundless.
Determination of fee, the lodestar method: an attorney’s hours are multiplied by a reasonable hourly
rate for that attorney, and the resulting number is adjusted for such factors as delay in payment,
likelihood of recovery, or unusually successful results. The lodestar approach has come under heavy
criticism, partly on the ground that it provides incentives to lawyers to spend unnecessary hours on a
case. Also under the lodestar approach, the attorney is guaranteed compensation at an hourly rate if
the low settlement is taken but risks getting nothing at all if the case goes to trial and loses.
*Lassiter v. Department of Social Services (Page 124)—constitution does not require an indigent
person whose parental rights are being terminated to be represented by counsel
o Presumption of right to counsel only where person could be deprived of personal liberty (i.e.
CRIMINAL CASES)
o ELDRIDGE FACTORS (propounds three elements to be evaluated in deciding what due
process requires): The Eldridge factors must be weighed against the presumption that there is
no right to appointed counsel in the absence of at least a potential deprivation of liberty:
o private interests at stake—here, the parent’s interest is an extremely
important one
o government interest—the state shares with the parent an interest in a
correct decision, has a relatively weak pecuniary interest, and has a
possibly stronger interest in informal procedures
o risk that procedures will lead to an erroneous decision—the complexity
of the proceeding and the incapacity of the uncounseled parent could be,
but not always be, great enough to make the risk of an erroneous
deprivation of the parent’s rights insupportably high
o You have to show that the ELDRIDGE factors outweigh that presumption of a right to counsel
o Parent has desire for & right to companionship, custody, care for his children but the STATE
shares the parent’s interest because it too cares about the welfare of the child.
o Supreme Court has been extremely restrictive in saying that due process requires granting an
attorney for indigent litigants
o Lassiter argued that because she was indigent, the Due Process Clause of the 14th Amendment
entitled her to the assistance of counsel.
12
o In this particular case, the court determines that presence of counsel for Lassiter could not have
made a determinative difference.
o Due Process requires FUNDAMENTAL FAIRNESS. Gideon v. Wainwright—an indigent’s
right to appointed counsel when litigant may lose his physical liberty if he loses the litigation.
o The right to appointed counsel is triggered by defendant’s interest in personal freedom
(in criminal cases or juvenile civil cases where the minor’s interest in personal freedom is
at stake).
o HOLDING: 14th Amendment due process does not require a lawyer be provided in such a
situation (indigent plaintiff in danger of termination of parental rights)
o DISSENT: Lassiter’s interest is compelling and the State’s interest is lacking. Physical
confinement is not the only loss of liberty grievous enough to trigger a right to appointed
counsel under the Due Process Clause. It is difficult for defendant to prevail against the
sophisticated arguments of the state without counsel of her own. The interest of the state is not
served by terminating the rights of any concerned, responsible parent.
Jurisdiction
For there to be jurisdiction, the court must have SUBJECT MATTER JURISDICTION and
PERSONAL JURISDICTION
PERSONAL JURISDICTION/Territorial jurisdiction:
How to establish personal jurisdiction—
 Citizenship
 Property
 Appearance
o Non-appearance results in default judgment
o General—consent to jurisdiction
o Special appearance: appear solely to challenge jurisdiction
 Service within state (transient jurisdiction)
o Exception = fraudulently induced presence: if potential defendant comes into state to
settle potential case, cannot be served with process unless notified that such might
happen.
~You need some type of presence and service of process
~Consent
-Waiver or Contract
o NOTICE: Adequate when notice is reasonably calculated to apprise interested parties in the
action
o Actual notice
o Publication is suspect—favored only when alternatives fail
In personam jurisdiction = binds a defendant personally
In rem jurisdiction = binds property in the sense of adjudicating rights of all persons who claim interest
in the property
Quasi in rem (still need the minimum contacts and no full faith & credit!) = settles property rights only
of specific persons. TWO types:
1) Resolves a dispute about the property itself
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2) Establishes rights to property, but the underlying dispute is unrelated to the property;
property is brought within the jurisdiction of the court by attachment, and the absent
defendant is put to the choice of either coming into the state to litigate the claim or of
staying outside and losing through default judgment. PENNOYER case involved TYPE
TWO Quasi In Rem jurisdiction. There was a problem though because the property was
not attached at the outset. Attachment at the outset would make it more likely that a
diligent owner of property would be alerted to the existence of a suit against him.
(Attachment = physical manifestation of posting signs on the property)
PENNOYER v. NEFF (Page 147)—Defendant was a non-resident and was not served properly
o FACTS: Mitchell sued Neff for money owed for legal services. Default judgment
entered against Neff; afterward, Neff’s property was attached. Neff’s property was sold
to Mitchell for small price; Mitchell sold this property to Pennoyer. Neff sued
Pennoyer for his land back.
o Defendant’s property was attached but NOT at the beginning of the trial
o Must attempt to give notice in a way that is actually intended to reach defendant
o RULE: jurisdiction over an absent defendant is permitted under circumstances of
consent, presence, and status
o HOLDING: No jurisdiction over NEFF because he had property in Oregon but the
property was not the subject of the dispute and it wasn’t brought into the dispute until
after. The property was NOT attached at the beginning of the suit! At the time the
court ruled, Neff was beyond the jurisdiction of the Oregon courts!
Constitutional limits on personal jurisdiction over an absent defendant
INTERNATIONAL SHOE CO. v. WASHINGTON (page 163)
Issue: whether the due process clause allows a Delaware corporation to be sued for contributions to
state unemployment in Washington courts
o FACTS: International Shoe is a Delaware corporation with no office in Washington.
o Washington could exert personal jurisdiction because International Shoe had sufficient
minimum contacts with the forum state
o Defendant enjoyed benefits and protections of Washington law
o Contacts must be relevant to the subject of the dispute
o Continuous and systematic contact that was related to the dispute = sufficient minimum
contact!
o Due Process requires only that in order to subject a defendant to a judgment IN PERSONAM,
if he be NOT PRESENT within the territory of the forum, he have certain MINIMUM
CONTACTS with it such that the maintenance of the suit does not offend TRADITIONAL
NOTIONS of FAIR PLAY and SUBSTANTIAL JUSTICE.
o Here, such a standard was met. The actions of the Shoe salesmen in Washington were
sufficient to constitute doing business in the state so as to make appellant amenable to suit in its
courts.
o While continuous activity of some sorts within a state is not enough to support the demand that
the corporation be amenable to suits unrelated to that activity, there have been instances in
which the continuous corporate operations within a state were thought so substantial and of
such a nature as to justify a suit against it on causes of action arising from dealings entirely
distinct from those activities. You must look at the QUALITY and NATURE of the activity in
relation to the fair and orderly administration of the laws which it was the purpose o the due
process clause to ensure.
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o A corporation does enjoy the benefits and protection of the laws of a state in which it conducts
business, and these privileges may give rise to obligations.
WORLD-WIDE VOLKSWAGEN v. WOODSON (1980)
o The only contact was that a car they sold in New York was involved in an accident in
Oklahoma, they did not have any business in Oklahoma
o ROBINSONS are suing Volkswagen (Germany), Seaway (NY dealer), World-wide (East
coast), and Audi (Germany). Robinsons sued in Oklahoma court as NY residents = no
diversity since Seaway and World-wide are there. The issue of Oklahoma state court having
personal jurisdiction over Seaway/WWVW is the same as the Oklahoma federal court personal
jurisdiction.
o The due process clause of the 14th Amendment limits the power of a state court to render a
valid personal judgment against a non-residential defendant.
o The Court concluded that a New York Audi dealer (Seaway) had not purposefully availed
itself of the opportunity to conduct activities in Oklahoma, although it could foresee that
its buyers might take its cars from there. The dealer had not sold cars there, advertised
there, cultivated Oklahoma customers, or deliberately focused on Oklahoma as a market.
Thus, it had not sought any direct benefit from Oklahoma activities sufficient to require it
to submit to jurisdiction there. Just because the car was mobile and foreseeably could be
driven to Oklahoma did not matter; foreseeability is NO SUCH criteria for jurisdiction.
o Purpose of MINIMUM CONTACTS:
o It protects the defendant against the burden of litigating in a distant or
inconvenient forum. This is described in terms of reasonableness or fairness/fair
play and substantial justice.
o It acts to ensure that the state through their courts do not reach out beyond the
limits imposed on them by their status as coequal sovereigns in a federal system.
General vs. specific jurisdiction: specific jurisdiction relates to the individual/particular suit at hand.
Contacts—continuous and systematic!
Burger King v. Rudzewicz (1985)
--This case involves a long-arm statute of Florida. The Court held this statute constitutional; the
statute did not offend traditional concepts of fair play and substantial justice.
--Burger King = Florida corporation
--Franchisees = in Michigan, signed a contract saying they would be under Florida law.
--Today, you can say that the contract was made wherever the server is located; there might be many
places where the contract is made.
--Jurisdiction cannot be avoided merely because the defendant did not physically enter the forum state.
--Rudzewicz purposely availed himself of the benefits and protections of Florida laws by entering into
contracts expressly providing that those laws would govern franchise disputes.
Asahi Metal v. Superior Court (Page 212)
--Factors in jurisdictionsame as in Burger King case.
Neither party was from the US, transaction did not even occur in the US. California did not have
personal jurisdiction in this case.
--Zurcher (in accident) sued Cheng Shin (manufacturer of the “tube”) who sought indemnification
from Asahi Metal (manufacturer of the tube’s valve accessory).
**********MINIMUM CONTACTS must have a basis in some act by which the defendant
purposefully avails himself/itself of the privilege of conducting activities within the forum state, thus
15
invoking the benefits and protection of its laws. Minimum contacts must be based on some ACT of
the DEFENDANT.
-The Due Process Clause requires something more than the defendant’s awareness that its product
made its way into the forum state while in the stream of commerce
FORUM NON CONVENIENS allows a court to dismiss a suit in which it has valid in personam
jurisdiction but when the forum is nevertheless extremely inconvenient.
SUBJECT MATTER JURISDICTION:
DIVERSITY OR FEDERAL QUESTION
Diversity of citizenship
--Cases between citizens of different states
--Complete diversity is required
--When another defendant is added that destroys complete diversity, the district court may dismiss the
defendant under FRCP 21 in order to preserve its jurisdiction, so long as the defendant is not an
indispensable party under Rule 19.
--Dispute must have more than $75,000 in controversy (it does not matter what is awarded, just what is
asked for in the complaint in good faith)
-Value of an injunction is obviously difficult to calculate
-The general tendency is to find jurisdiction if the amount in controversy is satisfied when
viewed from either P’s or D’s perspective
-Amounts in counterclaims are NOT part of the amount in controversy
Diversity jurisdiction never includes matters regarding: probate proceedings, divorce, alimony, child
custody
--Purposes: prevent bias of state courts against out-of-staters, difference between state and federal
procedure, allows two court systems to speak on the same laws (both state and federal courts will apply
the same state substantive law)
--CORPORATION is a citizen (1) Where it was incorporated and (2) Where its principle place of
business is:
-The principal place of business is either where the corporation carries on its primary
production/service activities OR where the corporation’s administrative office is located
--An unincorporated association is a citizen of all the states in which the members of the association
are citizens
--In a suit on a trust, the citizenship of the TRUSTEE (not that of the beneficiaries) will be considered.
Federal question—
--Federal law (federal question must arise in complaint)
--Cases involving ambassadors (Supreme Court has original jurisdiction)
--Admiralty and maritime cases
--Cases where the US is a party
--Cases between TWO (2) or more states
--Cases between a state and a citizen of another state
MAS v. PERRY (Page 364)—need COMPLETE DIVERSITY of all parties involved to get subject
matter jurisdiction based on diversity of citizenship
COMPLETE DIVERSITY = no party on one side may be a citizen of the same state as ANY party on
the other side
The DIVERSE citizenship must be present at the time the complaint is filed.
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Changing Domicile = (1) Take up residence in a different domicile (2) With the intention of remaining
there.
Facts—Perry rented an apartment to the Mases in which there was a two-way mirror; Perry contends
that appellees failed to prove diversity of citizenship among the parties.
Mr. Mas Citizen of France,
PERRY Citizen of Louisiana
Mrs. Mas Citizen of Mississippi, but PERRY claims she is Louisiana domicile (court says NO)
The Mases = graduate students in Louisiana and thus no intent to remain.
Federal statute Section 1332—requires citizenship of a state, thus an American citizen domiciled
abroad may not use this section. An alien can use this section in two ways:
1) There is jurisdiction over suits between citizens of a state and citizens/subjects of a foreign nation
2) An alien for permanent resident in the US is “deemed” a citizen of the state in which he or she is
domiciled.
-Getting diversity jurisdiction based on amount in controversy—based on the amount claimed
in complaint in good faith, NOT amount actually awarded
-Can aggregate individual claims to get past the $75,000 mark, but you cannot aggregate the
claims of multiple plaintiffs
-Citizenship is measured at the time the complaint is filed
You must be a citizen of the state and domiciled there. DOMICILE = physical presence
and intent to return
Side notes:
I.
SEVEN issues
a. Does the court have subject matter jurisdiction? This is always asked first since it goes
to the very power of the court to hear the dispute. This is a constitutional
issue/federalism.
i. All of the subject matter jurisdiction of the federal courts is laid out in Article III
of the Constitution.
ii. Federal question jurisdiction: the action (plaintiff’s cause of action) must arise
under the CONSTITUTION, TREATIES, or LAWS of the UNITED STATES.
What does “arising under” mean? Federal courts are courts of limited
jurisdiction; the cause of action must arise under constitution/laws/treaties of the
US.
1. Copyrighted motion picture example = all this is is a breach of contract
action, even though there is such a thing as federal copyright act. It is
not an action arising under the act. There is no federal question.
2. The federal courts are courts of limited jurisdiction. Why? The
constitution represents a balance of power. All the powers not expressly
delegated to the US government are reserved to the states!
3. It is the PLAINTIFF’S CAUSE OF ACTION that must arise under the
Constitution, Treaties, or Laws of the United States. It does not count if
the plaintiff merely ANTICIPATES a federal defense.
4. Well-pleaded complaint: this complaint does not include defensive
material.
5. There is no jurisdictional amount requirement!
6. There are two forms! Certain claims MUST go to a federal court
(EXCLUSIVE federal jurisdiction). Other claims, however, (Federal
Employers’ Liability Act) can go either to a federal court or a state court.
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iii. Diversity of citizenship jurisdiction: subject matter jurisdiction!
1. The amount in controversy must be more than $75,000.
2. Provides a neutral national forum free from fear of local bias.
3. RULES of Diversity Jurisdiction: Bright line policies (that are arbitrary)
a. The first rule is: there must be COMPLETE DIVERSITY OF
CITIZENSHIP! Everyone from the left of the (v) must come
from a different state from everyone on the right of the (v).
b. The second rule is: determine diversity of citizenship on the DAY
of the INSTITUTION of the action! Not on the day you go to
trial, but the day the action is instituted.
c. The third rule: determining one’s citizenship
i. An individual’s citizenship = domicile, unless the
individual physically changes his or her state with the
intent to remain in that state: (1) Physically present, (2)
Intention to remain indefinitely. The issue is: where is
that person’s “center of gravity” or the center of their life?
Look at the facts. CITIZEN OF NATURAL PERSONS.
ii. CORPORATIONS. 2 Citizenships. (1) State of its birth,
state of incorporated (likely Delaware or NJ) (2) The state
in which the corporation has its PRINCIPAL place of
business. TWO rules, split of authority: Where it makes it
executive decisions (nerve center test) OR Where that
corporation does a plurality of its thing (manufacturing
OR services). Nerve center versus Muscle.
iii. Unincorporated associations like labor unions or
partnerships. The rule: you cumulate the states of all of
the members of the associations. If it is a labor union,
ADD up the states of all of the union members. Thus, if it
is a national labor union, you will never have complete
diversity!
iv. Parties in representative actions. (Of estate, of child, of
incompetent person, CLASS ACTIONS, Shareholder
derivative) Historical rule: based on the citizenship of the
REPRESENTATIVE and NOT the citizenship of the
represented. 1980s: Congress passed a law, the new rule
is that in actions involving children, incompetents, or the
deceased (estates), diversity is tested in terms of the
represented, not the citizenship of the representative.
(New rule does not apply to class actions or shareholders).
d. Amount in controversy! This is in order to screen out the small
cases. The matter in controversy must be MORE THAN $75,000
exclusive of interest and costs. With a single plaintiff and a
single defendant, you can add them up! When you have multiple
plaintiffs, you cannot aggregate in the multiparty situation!
e. Supplemental jurisdiction. Federal courts’ extended jurisdiction.
Appending a state law claim to a federal question claim: yes,
sometimes you can do this, if there is overlap between the two
claims, even though there would be no subject matter jurisdiction
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over the state law claim otherwise. Common nucleus of
operative fact. Pendant/ancillary claims.
f. For injunction, you try to quantify the amount.
g. For subject matter jurisdiction, you can either get it by federal
question or by diversity. Even if two parties are from the same
state, if it is a federal question, then there is subject matter
jurisdiction.
h. (1990) Section 1367: “Supplemental jurisdiction”—this statute
codifies! Common nucleus of operative facts. 1367 b prohibits
the use of supplemental jurisdiction when the case is based solely
on diversity jurisdiction…. This is discretionary.
b. Does the court have personal jurisdiction? The power of the court over the defendant.
Constitutional issue of due process.
i. Is there a traditional base of personal jurisdiction here? All you have to do is
spot this! PENNOYER v. NEFF! (1) A state is all-powerful within its
boundaries, (2) A state is impotent without its borders. The state can assert
territorial jurisdiction within its borders even if person is in the state
temporarily. DOMICILE: If you are a domiciliary, that state can assert power
over you. You can assert jurisdiction based on agency; agents are jurisdictional
carriers. You can base jurisdiction on CONSENT, it is often express. There can
also be implied consent. When defendant fails to assert a jurisdictional defense,
there is consent (consent by not asserting jurisdiction defense). Doing
Business/Corporate Presence = consent. *Territoriality, waiver, producing
consent, doing business, presence, domicile
ii. If no traditional base, does the long arm statute apply? This statute will be
given. If a cause of action arises out of “…” = specific jurisdiction arising out
of a specific event. Here  Fact Analysis & Law Application. (Usually, on a
law school exam, the long arm statute applies).
iii. If long arm does apply, is that application of the long arm statute constitutional?
1. THREE important decisions! International Shoe Corporation versus
State of Washington = beginning of the modern jurisdiction philosophy
of American courts. Missouri corporation shipping shoes into
Washington. The deals were being made in Missouri, but then the shoes
were being shipped. Is shipping shoes “doing business”? Realistically,
this company should be vulnerable to Washington jurisdiction. “A state
can assert jurisdiction over a non-resident if the non-resident has
minimum contacts with the forum so that it is fair play and substantial
justice for jurisdiction to be exerted.” MINIMUM CONTACTS and the
activity must be enough so that it is fair play, substantial justice. Due
Process! Modern life is INTERSTATE life. *minimum contacts *fair
play *substantial justice. The birth of the modern long arm statute came
out of this case! The critical element is that the cause of action, the
minimum contact, MUST be related to the forum! It cannot be the
situation where the accident occurs, e.g. in New Jersey, and the New
Yorker tries to sue the tortfeasor in New York under the NY long arm
statute.
2. Hanson v. Denkla-- Unteachable case, just a side note. But this is an
important case. Wealthy woman in Pennsylvania with a Delaware
TRUST. She then moves to Florida where she dies. Heirs complain
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3.
4.
5.
6.
7.
8.
9.
over the trust. Florida said it had jurisdiction over the estate. Florida
had all types of contacts with the deceased, the heirs, and the estate. The
Supreme Court said NO, the Delaware trust did not have minimum
contacts with the state of Florida. The Delaware trust did not voluntarily
get involved with Florida. The minimum contacts must be volitional!
WW VW v. Woodson!!! Robinson family that lived in New York and
bought a car there. On the way to Arizona, they get into an accident in
Oklahoma. They sue VW German manufacturer, VW North America,
Distributor (WW VW), Seaway Motors (retailer). They sue in
Oklahoma state court, invoking the Okla long arm statute. The tort
didn’t happen in Arizona. VWs were international companies and were
vulnerable everywhere. US Supreme Court: no personal jurisdiction in
Oklahoma!! Look at the mobile nature of the car. So why wasn’t it
foreseeable? Perhaps it was foreseeable, but you need more! You need
the defendant to PURPOSEFULLY AVAIL ITSELF OF THE
PROTECTION OF THE FORUM! ***Worldwide sold the Audi to
Seaway, Seaway sold it to the Robinsons, it was the consumer that
moved the car from New York to Oklahoma. The companies did not
have control over where the product ended up! (Issue of who brought
the product into the forum).
Burger King decision: Michiganders were vulnerable to Florida
jurisdiction. Based on contractual arrangement. The Michiganders
agreed to be bound by Burger King’s Florida rules. The contract said
that Florida law controls!
Asahi case: Motor bike tire blows out, sues tire manufacturer (Taiwanese
company), tire valve company was Asahi (Japanese company). Japan 
Taiwan  California. TWO PARTS to the case: (1) Whether the
manufacturer who puts the product into the stream of commerce is
automatically jurisdictionally vulnerable wherever the product shows up.
4 justices said stream of commerce was not enough. 4 says it’s enough.
9th justice went off. We don’t know if it is stream of commerce or
stream of commerce PLUS.
Personal jurisdiction  Long arm jurisdiction = specific jurisdiction.
Other kind of jurisdiction: General Jurisdiction! Jurisdiction that is
based on the fact that the defendant has an on-going, intense relationship
with the forum, so that it is not unfair to exert jurisdiction over them.
General jurisdiction: contacts that are continuous & systematic enough!
Much tougher standard to meet than specific or long-arm!
In Rem jurisdiction: Pennoyer v. Neff: because a state is all-powerful
within its boundaries, it can adjudicate title for any piece of property
within the boundary, regardless of where the owner is!
Quasi-in rem jurisdiction: fiction created by the law. Defendant must
have property in the state but he himself is not in the state. The action
doesn’t involve the state but the property is there. The state can seize the
property, as if it were the Defendant, even if the property has nothing to
do with the cause of action. This too was validated in Pennoyer. These
types of judgments don’t get full faith and credit! Jurisdiction was
exhausted when the property was exhausted. This is consistent with
notions of state sovereignty. The location of property is absolutely
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fortuitous, not the same as the minimum contacts, fair play, substantial
justice, voluntarily availing yourself of the benefits of the forum. “From
now on, all assumptions of jurisdiction will be tested by International
Shoe and its progeny.” You need minimum contacts, fair play, and
substantial justice. Thus, no need to sue quasi in rem (no full faith and
credit) when you can sue in personam (when you DO get full faith and
credit!). Quasi in rem is not totally dead, just mortally wounded.
10. Pennoyer is not dead! Burnham v. Superior Court: issue of transitory
territorial jurisdiction. Why? Tradition! We’ve always had
territoriality, so we should keep it! This is based on state sovereignty.
Territoriality might not be enough when you are involuntarily in a state.
Supreme Court says territorial jurisdiction is not dead. The previous
Marshall opinion only applied to quasi in rem.
11. Federal courts typically use the long-arm statute of the state they are
sitting in. If there is no long arm, the federal court is to go to the
constitutional standard. Use 5th Amendment due process standard, but
there is none. Perhaps use 14th Amendment (state court) decisions of
minimum contacts (International Shoe, Volkswagon). This is probably
where you get the fair play and substantial justice issue.
c. Has the defendant been given notice and opportunity to be heard? Basic constitutional
violation of fairness otherwise.
i. Defendant must be given notice that he or she is being sued.
ii. Notice by publication: difficult question. Red flag! Notice must be reasonably
calculated under the circumstances to give actual notice. This is a very high
constitutional limit. Usually there is a better way to give notice than this.
iii. “Nail & Mail” not ok. Look at the practical facts of life.
iv. “Opportunity to be heard”  This is usually within the debtor/creditor situation.
Questioning the creditor’s actions. The decision to issue the warrant of
attachment or repossession must be made by the judge; the judge must decide
based on a full presentation by the creditor’s fact-based statement of the right to
the possession. The debtor must be given an immediate right to a hearing on the
merits. This is a due process balance that has been struck. Due process is a
balancing act, what is acceptable depends on what is at stake and the legitimate
interests on either side.
d. Has the defendant been served with process properly?
i. This is just about Rule 4. Whether service was done as prescribed.
ii. You cannot entice or defraud someone to enter the state in order to serve
process.
e. Does the court have venue? The system of rules by which a court system allocates its
business among the units within the system.
i. This is a rule of administration designed to allocated cases within a judicial
system.
ii. VENUE means location.
iii. Three kinds of venue questions:
1. Application of the rules for a particular system: Section 1391. Venue is
based on the residence of the defendants. “Residence” not citizenship!
The residence of a corporation may be every state! Any of the
defendants must reside in one of the districts. But all of the defendants
must reside in the same state! The district: the tort or the contract must
21
have been formed in that district. You can place venue where the
defendants reside or where the act occurred, or the judicial district in
which the defendant may be found (not terribly clear) ~ wherever the
defendant can be found in jurisdictional terms usually. You can only use
the third venue when neither of the other two are available. Or place
where defendant is subject to personal jurisdiction (this is a default
principle). CORPORATE venue: wherever the corporation is subject to
personal jurisdiction. Venue in property actions (local action venue):
you must bring the action where the land is located.
2. The transfer of venue: every state has a transfer of venue provision.
Standard for transfer: in the interest of justice, pure common sense.
Where the events occurred, where the parties are, where the records are,
where the witnesses are. Section 1401A: federal transferthe action can
only be transferred to a place where it could have been commenced.
SMJ (you have it automatically) & PJ & Venue!
3. The doctrine of FORUM NON CONVENIENS: It is not a convenient
place. There are situations where you cannot transfer the venue. You
have to overcome the presumption in favor of the plaintiff’s choice of
forum. Lately, wider use of forum non conveniens, especially since the
long arm statutes are so grabbing. Many times, grant of a forum non
conveniens is burdensome for plaintiff; this granting requires the
plaintiff to file again! The FORUM NON motion is made by defendant
usually. This motion will be granted if there is a more convenient forum
and if defendant waves the statute of limitations requirement.
f. If case commenced in a state court: can the action be removed to a federal court? The
Removal Issue. A federal action cannot be sent to a state court. You can only remove
an action that could’ve been brought in a federal court ORIGINALLY. Thus, you still
must go through the SMJ, PJ, and Venue. Only a defendant can remove. You remove a
case from a state court to a federal court that covers the geographical area that includes
the state court you began in. Section 1441 = removal. After removal, you can then seek
to transfer. If you have a separate and independent federal claim that is with a state
claim, you can remove the separate and independent claim to federal court. 1441c:
allows removal of state matter too, it is in the discretion of the federal court. This is like
supplemental jurisdiction.
g. Have any of the proceeding six issues been waived? This is a tricky question.
i. SMJ—federal question/diversity. This is never waived!
ii. PJ, notice, process, venue—must be raised by a pre-answer motion or they are
waived!!!!! These are threshold defenses.
SANCTIONS: FRCP 11
1993, This rule was re-written.
*In most systems, it is the lawyer that signs the papers (pleadings, motions, etc.). The signature is a
certification.
*Sanctions are designed to deter, not to punish. Monetary sanctions, etc.
*The rule provides a safe harbor provision. The objecting party can request that the other party
withdraw the offending paper, the other party has 21 days to withdraw!
*1993 Amendment—increased the burden. Continuing obligation to monitor the paper’s continued
viability. Continuing obligation to withdraw the paper if it turns out to be invalid.
22
Counterclaim: claim back by defendant across the v against the plaintiff. (1) Compulsory
counterclaim: must be asserted! If you do not assert it, you have waived it. This claim arises out of
the transaction or occurrence that is the subject of the main claim. Why mandatory assertion? For
efficiency! (2) Permissive counterclaim: you may assert it but you do not have to.
Class action: frontier of modern civil procedure. Efficiency and economy device! A representative
sues on behalf of the entire class! For subject matter jurisdiction, you look at the citizenship of the
REPRESENTATIVE! Amount in controversy: in class actions, you cannot aggregate the claims of the
members! Each one must have an individual claim above $75,000. No intention to overrule this
decision. 5th Circuit and some others have said that you can aggregate in a class action! This was after
a statute was passed by Congress. ISSUE—Should it be certified as a class action?
Interpleader: an equity device that has roots back in medieval times. Its design is to protect people
who have a piece of property, and where more than one person is claiming the property. Interpleader
allows the property holder to go into a court and deposit the property. The property holder inter
pleads, gathers together all of the claimants, and the claimants litigate amongst themselves.
Sometimes the stakeholder is also a claimant. Sometimes one of the claimants sues the stakeholder,
and the stakeholder then suggests to bring the property to court.
FRCP 22: Interpleader, diversity cases and thus the stake has to exceed $75,000 in amount. There is
also a federal interpleader statute. Interpleader is only effective if it can get all the claimants before it!
It must have personal jurisdiction over all of the claimants!
SERVICE OF PROCESS
FRCP 4!
FRCP 4 regulates the mechanics of notice in federal district court.
Service may be effected by any person who is not a party and who is at least 18 years of age.
Service of the summons and complaint must be made upon defendant within 120 days after the filing
of the complaint.
I.
Pages 293 to 299:
a.
Federal district court:
i.
The mechanics of notice in federal district court suits are regulated under
federal Rule 4. Service of process to commence a lawsuit requires delivery
of both a summons and a copy of the complaint. In most circumstances,
service can be made by any non-party over eighteen years of age.
ii.
Service on competent adults may be accomplished in a variety of ways:
1.
Personal service: it is sufficient that they are left near the person so
long as it is made clear what they are.
2.
"Dwelling house or usual place of abode":
3.
Mail: plaintiff may mail the summons together with a complaint to
the defendant and request that the defendant return a waiver of
service. The defendant has the duty of minimizing the costs of
serving process. Service is not complete (it is not waived) until the
defendant has returned the waiver of service.
4.
Agent appointed to accept process
5.
In compliance with state law
iii.
Service on infants and incompetents must be made in accordance with the
law of the state in which the service is made.
iv.
There are special provisions for service on the United States, on state and
local governments, and on foreign governments.
v.
In rem and quasi in rem jurisdiction:
23
1.
II.
III.
A district court may assert jurisdiction over and adjudicate interests
in property in accordance with applicable federal statutes.
2.
In cases where personal jurisdiction cannot be obtained over a
defendant, the federal court may assert quasi in rem jurisdiction
based on seizure of defendant's assets within the jurisdiction.
vi.
Service in foreign countries: this service is governed by a combination of the
international Hague Convention and Rule 4(f).
vii.
Geographical scope:
1.
Foreign defendants may be subject to suit in federal court if they
have insufficient contacts with any particular state so long as
contacts with the US as a whole are sufficient.
2.
Federal statutes sometimes provide for nationwide jurisdiction in
suits brought under them.
3.
Bulge jurisdiction: third-party defendants impleaded into an existing
federal suit and additional parties needed for adjudication may be
brought within jurisdiction of the district court, provided that the
party can be served within 100 miles of the courthouse in which the
action was commenced.
b.
State court:
i.
Service on individuals:
1.
By personal delivery of the summons and complaint to the defendant
personally.
2.
By delivery at the person's dwelling house, usual place of abode, or
usual place of business
3.
By mail
4.
By publication (for California, in a CA newspaper that is most likely to
give actual notice).
ii.
Service on minors: service on a minor must be made by any of the above
methods on a parent, guardian, conservator, or similar fiduciary of the
minor.
c.
Statutes of limitations and service of process: A statute of limitations bars suit
when a certain time has elapsed after a cause of action has accrued.
i.
Time of commencing a suit: some states hold that a suit is commenced at
the time the complaint is filed with the court, even if service of process on
the defendant is not accomplished until some time later.
ii.
Misnaming of the defendant: When the misnaming does not prevent the true
defendant from being notified of the suit, the statute of limitations is
typically tolled as of the time of the filing of the suit or of service of process.
Misnaming defendants is tricky especially when involved is a corporate
defendant.
d.
"Sewer service": Private process servers are occasionally tempted to pretend falsely
that proper service has been accomplished. This type of service has been named
"sewer service."
Pages 227-228. Long-Arm Statutes.
a.
A court will not find in personam jurisdiction unless there is statutory authorization
for the exercise of that jurisdiction. Jurisdictional statutes that reach across state
lines are called "long-arm statutes": the statute asserts the state's authority to
reach its long arm across the state boundary into another state or country, and
thereby subject a person or corporation to its jurisdiction.
Pages 232-233.
a.
Federal court usually follows the contours of state long-arm statute in the state in
which they sit.
b.
Detailed long-arm statutes. It is thought that jurisdictional decisions were more
likely to be predictable and that decisions finding jurisdiction more likely to be
24
c.
upheld if fairly precise grounds for the exercise of jurisdiction were specified in the
statute.
Federal and state court DES cases.
The INTERNET 
i.
ii.
The Inset formulation: Inset and Instruction Set (with the domain name
inset.com). Inset sued for unfair competition and federal trademark
violations. Inset was a Connecticut corporation and the district court upheld
jurisdiction in Connecticut. ISI could be sued in Connecticut because the
website and also the toll-free number posted were meant to communicate
with residents of all states. ISI had purposefully availed itself of the
privilege of doing business within Connecticut.
The Zippo formulation: the most widely cited Internet jurisdiction case.
Zippo Manufacturing makes lighters and does business in Pennsylvania.
Zippo Dot Com was a California-based corporation that operated an internet
news service. Zippo lighters sued in Pennsylvania, and the district court
upheld jurisdiction. General test for jurisdiction in Internet cases: a sliding
scale. At one end is when the defendant enters into contracts with residents
of foreign jurisdictions that involve knowing and repeated transmissions of
computer files over the Internet; in such a case, personal jurisdiction is
proper. However, if the website is passive, merely accessible to foreign
users that does little more than make information available is not grounds
for the exercise of personal jurisdiction.
1.
Issue with Zippo: how it overlaps and contradicts current court
decisions already in place.
2.
Recent cases have begun to recognize the limitations of the Zippo
formulation. Courts pay attention to the actual relationship and
interaction between plaintiff and defendant's website.
3.
Panavision International v. Toeppen (1998): Toeppen registered as
his own domain names of over 100 well-known corporations. One
was panavision.com. Panavision is a registered trademark and noted
California's anti-dilution law. Jurisdiction was allowed in California,
as Toeppen knew Panavision was a well-known company centered
there.
4.
Young v. New Haven Advocate (2002): Court found that the
newspaper articles were meant to address a problem in Connecticut
and it therefore denied jurisdiction in Virginia.
5.
Carefirst of Maryland v. Carefirst Pregnancy Centers (2003): Illinois
corp CPC entered into a web hosting agreement with a Maryland
Corporation. Carefirst is from Maryland. Carefirst MD sued for
trademark violations. Court said that by using a Maryland web host,
it did not direct electronic activity into Maryland. The court denied
personal jurisdiction in Maryland.
Pretrial Procedure
DISCOVERY
Most of the money spent in American litigation is spent on discovery.
Most discovery rulings are not appealable.
FRCP RULES on DISCOVERY:
Rule 26—required disclosures (Initial, expert testimony, pretrial), scope/limits, protective orders,
timing, supplementation, conference, signature [PAGE 68 – 77]
Rule 37—procedure for compelling discovery and sanctions for failing to abide by discovery rules
[PAGE 94 – 98]
25
Purposes of discovery:
 Enable more accurate outcomes
 Promotes settlement
 Allows parties to know whether summary judgment may be available
 Inflict costs or harass an opponent (but unethical to conduct discovery solely for this reason)
 Facilitate ‘reconstruction’ of evidence in anticipation of opponent’s proof at trial
SCOPE of discovery—any matter that is not privileged that is relevant to a claim or defense of any
party
TOOLS of DISCOVERY
1. INITIAL DISCLOSURES—Rule 26, required in federal court
 Creation of a proposed discovery plan

FOUR Categories of initial disclosure:
i. Names, addresses, and telephone numbers of individuals likely to have
discoverable information
ii. Copies of documents, data compilations, and other tangible things that the
disclosing party may use to support its claims.
iii. A computation of any categories of damages claimed.
iv. Any insurance agreement out of which the judgment may be paid
2. Depositions—RULE 30 (oral); Rule 31 (written)
 A party may depose anyone (party or not) so long as they possess relevant information
3. Interrogatories—Rule 33, NOT available against non-parties
 Inexpensive for the part asking the questions, might be costly for the party that has to
answer them!
4. Document production/inspection of tangible things, RULE 34
5. Physical and mental examinations—RULE 35
6. Requests for admissions—RULE 36, having opponent admit certain facts as true
7. Motions for protective orders and motions to compel—Rule 37
8. SANCTIONS—Rule 37
ZUBULAKE v. UBS Warburg (Page 828)
 FACTS—inaccessible electronic data; Zubulake is suing for gender discrimination; she claims
key evidence is on emails, which can be found on backup tapes; restoring the emails would be
very expensive; Zubulake’s discovery request was for all documents between UBS employees
discussing her.
 For the backup tapes, the court decides it is appropriate to consider cost-shifting.
 Party generally may obtain relevant information at the disclosing party’s expense but
that rule is limited if information is obtainable in an easier or less-costly way, if it could
have been gotten elsewhere through discovery, or if the burden outweighs the benefit
 The Court here says it will conduct the appropriate cost-shifting test AFTER emails
from 5 backup tapes are produced—in the end, Zubulake was to pay 25% of the
restoration, not to include associated lawyer’s fees.
 COST-SHIFTING is considered when the cost would impose an undue burden or
expense to the responsive party—revised 7-factor test:
i. Extent to which request is specifically tailored to discover relevant information
ii. Availability of such information from other sources
iii. Total cost of production compared to amount in controversy
26
iv.
v.
vi.
vii.
Total cost of production compared to resources available to each party
Relative ability of each party to control costs and its incentive to do so
Importance of issue at stake in the litigation
Relative benefits to the parties of obtaining the information
LIMITS ON DISCOVERY
4 Categories of information:
1. Information protected by both Attorney/Client privilege and Work/Product doctrine
2. Information protected by neither
3. Information protected only by Attorney/Client privilege
4. Information protected only by Work/Product doctrine
ATTORNEY/CLIENT PRIVILEGE
 Covers communications between attorney and client in confidence for purpose of obtaining
legal advice and not waived
 Communication is NOT protected if not induced by the ‘in confidence’ requirement
 Easy to wave—if client speaks publicly about what he told his attorney, then A/C privilege is
waived.
 This privilege is ABSOLUTE! It cannot be overcome by showing that the information is
unavailable from any other source!
 EXCEPTIONS: If lawyer is contact to help commit a crime or plan what the client knew or
should know was a crime, or if there is claim of breach of duty to client by lawyer or breach to
lawyer by client
 UPJOHN CO. v. UNITED STATES (Page 845)—IRS sought to obtain questionnaires that
were sent to Upjohn’s managers, but this communication would not have occurred BUT FOR
the attorney-client privilege, therefore it is protected.
o The attorney sent out questionnaires to Upjohn employees about paying off foreign
officials. ISSUE—Who exactly is the client of the corporate attorney?
o Extended beyond precedent “Control Group Test” to protect communications
with lower-level employees in a corporation who have no party in acting on the
attorney’s privilege
o Policy arguments: you want to encourage people to seek legal advice; if lower level
employees are not protected, the corporate attorney might not get the full picture of
what is going on
o AGAINST Upjohn/Court: Not all employees are included in the “client” of the
corporation
WORK PRODUCT DOCTRINE
o The work-product of an attorney is material prepared IN ANTICIPATION OF LITIGATION.
(Statements from witnesses, notes taken at meetings with witnesses, and memoranda
summarizing legal research).
o Documents and tangible things prepared in anticipation of litigation/trial by or for a party or the
party’s attorney
o Must be a substantial need/inability to obtain elsewhere without undue hardship in order to
compel discovery of this material
Hickman v. Taylor (Page 856)—can only get at attorney files which are protected upon a showing of
substantial need but can not get information which contains attorney’s mental impressions!
27

Witness statements secured by the adverse party’s counsel MAY BE discoverable only
where relevant and non-privileged facts remain hidden in such files and the facts are
ESSENTIAL to the case.
 Protection of privacy versus reasonable and necessary inquiries
 Attorney for defendant here interviewed a surviving crew member; facts—a tug sank
while helping to tow a car off a railroad; importance of getting to the witness before the
other side so the attorney doesn’t have an influence; even if the witness is beneficial to
you, other side can use the established/written statement to destroy witness’s credibility!
Upjohn Co. v. United States (Page 865)—disclosure of documents protected by the work product
doctrine requires a higher showing than substantial need and undue hardship.
-----Rule 26(b)3 codifies the work product doctrinespecial protection (but not 100% of the time) to
attorney’s mental processes (includes memoranda of oral statements)
 THREE Categories:
o Material that is not protected by work product
o Material that is protected by work product—obtainable upon showing of substantial
need and undue hardship
o Material including attorney’s mental impressions—ONLY obtainable upon a higher
standard than substantial need but is not specifically laid out yet
CD Notes:
DISCOVERY
~Exam topics: scope of discovery, discovery devices, work product doctrine (Hickman v.
Taylor), 1993 AMENDMENTS
~Discovery is the centerpiece of litigation!
~Scope of Discovery: wide-angle discovery, since the pleadings did not formulate the issue.
Principle = equal access to all materials, equality of information opportunity!
FRCP 26b1—defines the scope of discovery: you may get anything that is NOT privileged that
is relevant to the subject matter of the action. This is a very broad standard. No issue formulation
limitation, no admissibility limitation. The information sought need not be admissible at trial, as long
as it is reasonably calculated to lead to admissible evidence. You cannot go fishing, but the
information must be related to finding admissible evidence. Virtually everything is discoverable!!!
Just know what is NOT discoverable. E.g., information on defendant’s net worth could not possibly
lead to admissible evidence in a tort action (despite the practical significance of the information).
Thus, if you allege punitive damages, you can ask questions about defendant’s net worth.
Discovery devices: oral depositions, interrogatories (directed at adverse party), document
discovery, medical examination discovery, request for admission (if it is admitted, then it is out of the
case because there is nothing to litigate!).
FRCP 35 on medical examinations—it is the most testable discovery device. (1) This requires
a MOTION (the other devices operate on notice alone) and a court order. You also must show good
cause, you must show you need this information. The opponent’s medical condition has to be in
controversy. The exam is limited to the party or someone the party is in legal control of; you cannot
examine a witness!!!
WORK PRODUCT DOCTRINE!
Hickman v. Taylor! 1947! This decision has been codified in 26b3! Principle: under the
FRCP, any materials prepared in anticipation of litigation are qualifiedly immune from discovery.
This does not include normal business records. It must be documents created with an eye to potential
litigation, something produced in anticipation of litigation. It can be generated by the lawyer, the
28
party, or the party’s employee. Work product is NOT based on fiduciary duty, it is not a privileged
communication. “Qualified immunity” is unique to the litigation system. Work product seeks to deny
access to relevant data; we want each side to do its OWN preparatory work!!! Sometimes you have a
party that just CANNOT get access to the data otherwise! In such a situation, that need trumps work
product doctrine! Use common sense—if witness dies or is beyond the jurisdiction or forgot, then the
discovering party can still get the info from the work product; you get equal access! Some information
is close to absolute immunity, and this involves LAWYER WORK! Lawyer’s strategy and tactics, we
do not want a lawyer to crawl inside the head of the opposing lawyer. This would break the back of
the adversary model. Nothing in the work product doctrine is intended to hide facts. The document is
then vetted by the judge and anything that is not work product will be given to the opposing counsel.
A LAWYER’S MENTAL IMPRESSIONS and strategy is never discoverable! You have to be an
advocate. Hickman—Concurrence opinion….
1993 Amendments to DISCOVERY! Discovery is controversial. Goal—change the discovery
rules! 1993 LIMIT on the number of depositions you could conduct (10). Beyond that, you had to get
court approval. Interrogatories were limited to 25! CONTROVERSIAL—FRCP 26A—New device!
Mandatory disclosure. At beginning of case, each party is required to make certain disclosures to the
other side. These matters were usually asked in depositions. You must give the name, address, and
telephone number of anyone that is likely to have discoverable information about the case. Inform
opponent about the location of relevant documents. List experts you might use. 26A3: requirement
that you disclose to opponent with names of potential witnesses you intend to use at trial! The design
is to make sure there is little or no game playing, make sure you stick to the schedule!
Read the discovery rules. Know what the deposition is (done under oath, need subpoena for non-party
witnesses), and what interrogatories are.
EXPERT TESTIMONY!
Ager v. Jane C. Stormon Hospital (Page 873)—
FOUR (4) CATEGORIES:
1.
Retained and testifying—Rule 26(a)2(b), mandatory initial disclosure
2.
Retained but NOT testifying—only discoverable in exceptional
circumstances; normally not discoverable
3.
Consulted but not retained—identities not discoverable = HIGHEST
amount of protection
4.
Treating physicians (physicians whose information was not acquired in
preparation for trial)—FREELY discoverable!
Why would you want to discover an expert’s identity? Because they likely did not come out on that
person’s side, that is why they are not testifying.
Experts—often what happens is a battle of the experts occurs; experts are paid by individual sides,
often exhibit a bias. Court-appointed experts—usually get demeaned by the advocates and don’t
return.
A party may depose any person who has been identified as an expert by an opposing party and whose
opinions may be presented at trial. Any deposition of the expert takes place only after the expert’s
report has been made available to the deposing party. To the extent that an attorney has supplied
work-product materials to an expert to use in forming the expert’s opinion, those materials are
discoverable.
CONFIDENTIALITY, PRIVACY, and PREVENTION OF HARASSMENT!
29
Vinson v. Superior Court (Page 886)—party may only request physical or mental examination if a
party’s physical or mental state is at issue. Once it is determined to be an issue then the discovering
party must have good cause for requesting the exam. Plaintiff in this case did bring her mental state
into question by alleging ongoing mental problems resulting from sexual harassment but did not waive
her privacy right as to her sexual practices and history. Here, Vinson sued the trial judge who
thereafter has to preside over the trial!
SUMMARY JUDGMENT
--Summary judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law
--Summary judgment prevents a costly trial for those situations when one is not needed; it is used
when the only question goes to what the LAW requires.
--The initial burden is on the moving party to support the motion. If a motion is not adequately
supported, then the plaintiff need not do anything!
--Submitting an appropriately supported motion for summary judgment:
Adickes v. SH Kress & Co (Page 923)—summary judgment should have been denied because Kress
did not file an adequate motion which required Adickes to respond
 Did not dispute that there was an officer in the restaurant prior to the arrest
 Deals with adequacy of summary judgment motions
 Adickes = white school teacher
 Adickes is suing Kress under Section 1983, alleging conspiracy with state police (deprivation
of federal equal protection under color of state law)
 HOLDING: Adickes has no duty to respond when the motion for summary judgment is
inadequate. Because respondent failed to show the absence of any disputed material fact, the
District Court erred in granting summary judgment. Respondent needed to prove that there was
no policeman in the store, and hence no possibility of conspiracy. It doesn’t matter that there
lacks opposing evidentiary material right then. SEE BELOW!
 SUMMARY JUDGMENT NOT appropriate here! Even if the facts do not directly contradict
one another, summary judgment is not appropriate where the jury can infer reasonable
inferences in contradiction. The judge cannot tell the jury what to infer, but the judge CAN
determine what a reasonable inference is. If it is possible that both statements are true, then
there is no direct conflict.
 Also, in this case, you have to look at the nature of what you are suing about—CONSPIRACY!
Usually there is NOT direct evidence about conspiracy.
 Evidence that directly conflicts—go to JURY! (Even if one side in unbelievable)
Summary judgment
1. Issue of summary judgment
2. See who has burden of proof
3. Look at evidence of the nonmoving party, has to create genuine issue of material fact
4. Indirect evidence: what inferences are necessary and are they reasonable?
30
Celotex Corp. v. Catrett (Page 935)
Motion for summary judgment was GRANTED! Asbestos case.
The moving party is entitled to judgment as a matter of law because the non-moving party has failed to
make a sufficient showing on an essential element of the case with respect to which the nonmoving
party has the burden of proof. Celotex moved for summary judgment saying that proximate cause was
not established (no proof that Celotex’s product injured Catrett). Catrett here had the burden of
proving that Celotex’s product injured Catrett.
***The Court here OVERTURNS ADICKES! The court in Adickes should have said that the moving
party’s motion was adequate for summary judgment but that Adickes’s response was sufficient—Court
made it a procedural issue instead of an issue of substance.
1) If moving party bears the burden of proof, they must demonstrate evidence proving their claim
so that judgment may be entered as a matter of law when moving for summary judgment
2) If the non-moving party bears the burden of proof, then the moving party may simply point to
the absence of evidence and do NOT have to come up with evidence proving a negative
WAYS to DISPOSE OF A SUIT based on the MERITS OF THE CLAIM
-Rule 12b6: motion for failure to state a claim upon which relief can be granted
-Rule 12c: motion for judgment on the pleadings
-Rule 55(b): judgment by default: an actual entry of a judgment granting relief against a defendant.
Such a judgment is on the merits and has res judicata consequences. This judgment can only be set
aside in accordance with provisions of Rule 60(b).
-Rule 56: summary judgment this is available to both plaintiffs and defendant, and you can also
move for partial summary judgment for individual claims. Ask: is there sufficient evidence favoring
the plaintiff that a reasonable jury could find in plaintiff’s favor under the applicable standard of
persuasion?
-Rule 50a: directed verdict
-Rule 50b: JNOV
-Rule 59: New Trial
If there is conflicting live testimony  up to the jury to decide which set of facts to believe; summary
judgment is inappropriate
If there MAY be conflicting inferences  up to the judge to decide which inferences are reasonable
RESPONDING to a PROPERLY SUPPORTED MOTION FOR SUMMARY JUDGMENT:
[No longer good law]Arnstein v. Porter (Page 945)—judge gets to decide which inferences are
reasonable, did NOT grant summary judgment since it would be possible to draw reasonable
inferences in favor of the non-moving party. When a live witness is offered to raise an issue of
material fact, summary judgment is not appropriate. This was a copyright infringement suit.
PORTER—“There is no evidence I copied.”
ARNSTEIN—(1) My apartment was burglarized. (2) Songs are similar.
31
PROCESS for deciding if summary judgment is appropriate—
 Who is the moving party?
 What is the issue the motion for summary judgment is based on?
 Who has the burden of proof for that issue?
 What evidence is provided on that issue?
o If DIRECTLY conflicting testimony—Summary judgment is not appropriate!
o If inferences  must decide what those exact inferences are and it is up to a judge to
decide if those inferences are reasonable enough to go to a jury
Summary judgment
Adjudication without trial! (1) It is a filtration device. Its purpose is to filter out those cases that are
trial-worthy and allow them to go to trial.
What exactly is trial-worthy? Disputed question of fact! If there is no dispute about facts, then the
judge can resolve the case as a matter of law. The moving party is entitled to summary judgment if it
can show there is no genuine issue of material fact. If there is no genuine issue of material fact, you do
not need a trial.
Courts do exercise negative discretion. If something just doesn’t seem right (or if there seems to be a
gap in the time sequence), might just be better off letting the jury tackle the issue.
Settlement and Pretrial Conference
SETTLEMENT can happen any time in litigation after the complaint is filed
 Generally not subject to court approval (exception—minors, insane, class actions)
 Now, the purpose of the pretrial conference is settlement! Most dismissals pursuant to
settlement do not require the judge’s approval.
 The SETTLEMENT Gap: Several factors bear on the likelihood of settlement and the size of
the gap:
o Expectations about the outcome
o Stakes
o Costs
o The parties’ distinctive preferences and values
o The role of the lawyer

RULE 16—purpose of pretrial conference is to facilitate settlement
o Conference also provides a SCRIPT for the trial (witnesses, objections, defenses, jury
instructions)
o Conference only occurs when parties and judge are certain the case will go all the way
to trial
o Number of bench trials dropped with the adoption of Rule 16—why want a bench trial
if you already refused settlement amount suggested by the judge?
Kothe v. Smith (Page 968)—Judge cannot effect settlements through COERCION. Judge cannot
sanction defendant for reaching a settlement after trial had started for an amount the judge had
previously suggested. Trial judge can ENCOURAGE settlement but cannot coerce it through Rule 16
sanctions
 Smith is appealing the judge’s sanctions which resulted from the “bad decision”
to go to trial. While Kothe told the judge she would accept $20,000, she told
Smith she would accept no less than $50,000. There was no way Smith
could’ve known for sure what would have allowed for settlement.
32





The district court’s imposition of a penalty against Smith was an abuse of the
sanction power given it by FRCP 16(f).
The court cannot use pressure tactics to coerce settlement.
COERCION to force settlement  BAD
Encouragement of settlement  GOOD (E.g., going back and forth to each side,
telling each their case is weak and you should settle)
Think about what incentives are permissible.
Rule 68: OFFER OF JUDGMENT
 Only Defendant can make an offer of judgment
 Contrast to settlement (claim is dismissed)—here judgment is entered on the merits of claim
against Defendant
 How to figure out costs
o 5 TYPES OF EXPENSES
 VERDICT
 P’s COSTS
 P’s ATTORNEY’S FEES
 D’s COSTS
 D’s ATTORNEY’S FEES
If D wins  judgment is P has to pay D’s costs (Rule 68 never applies when D wins)
If P wins  judgment is D has to pay verdict and all of P’s costs (plus own costs, but not really part of
the official judgment)
Rule 68 applies when judgment obtained by P is not more favorable than the offer made by D—verdict
is less than what D offered!
D pays the verdict and P’s pre-offer costs and P’s pre-offer attorney’s fees (IF the UNDERLYING
statute provides that costs include attorney’s fees)
P pays D’s post-offer costs (ISSUE OF WHETHER THIS COULD INCLUDE D’S Post-offer
attorney’s fees if underlying statute provided for fee-shifting)
Marek v. Chesny (Add’l Materials Page 92)—when underlying statute provides for fee-shifting,
“COSTS” under Rule 68 would include attorney’s fees.
Rule 68’s purpose—encourage settlement!
Respondent tried to claim that the offer was not valid because it lumped together the “verdict” with the
fees, but the court says you can easily add/subtract.
TRIAL: Right to jury trial
7th AMENDMENT—at common law in suits for $20+, the right to jury trial is preserved. This only
applies to federal court though, and 7th Amendment specifically refers to civil cases (jury trial always
guaranteed for criminal cases).
But at the time the 7th Amendment was ratified, there were different courts for law and equity.
American Life Insurance v. Stewart (Page 998)—EQUITABLE JURISDICTION IS NOT
DESTROYED by a COUNTERCLAIM bringing an action at LAW.
FACTS—Some poor farmer in the midst of the depression!
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Cancellation of policy = equitable relief
Breach of contract = legal relief
Equitable claim, but Stewart files a counterclaim alleging breach of contract! (Legal)
 When there are common factual issues to both equitable and legal claims, matter of judicial
discretion as to which claim is tried first—OVERTURNED!
 Federal judges usually decide to try equitable claims first
 Fraud was a common issue—if judge decided there was fraud in the equity issue, then the legal
issue would be disposed of since fraud is a complete defense for breach of contract.
Beacon Theatres v. Westover (Page 1002)—Right to a jury trial when there are common factual issues
in EQUITABLE and LEGAL claims
 Right to jury trial for ALL issues bearing on the legal issue regardless of whether they also bear
on an equitable issue as well
 Expansion of the right to jury trial instead of the intended “PRESERVATION” of the 7th
Amendment
 Beacon v. Fox: Fox—wants declaratory judgment and injunctive relief; Beacon’s counterclaim
is a request for money damages/claims contracts are unreasonable.
 Court of Appeals ruled AGAINST Beacon in following American Life Insurance; the Supreme
Court reverses.
 Beacon case is responsible for the RIGHT TO JURY TRIAL when issues are relevant to both
legal and equitable claims.
 Declaratory judgment = legal remedy
 Beacon case implies there might be a right to jury trial everywhere
Chauffers v. Terry (Page 1015)—Modern historical test to determine whether an action will resolve
legal or equitable rights (Right to jury trial only when legal rights are at stake)
 Two-part inquiry = Nature of issues involved (compare to 18th century actions in England prior
to merger of law and equity) and Remedy sought
Atlas Roofing Co. v. OSHA Review Commission (Page 1047)—when government sues to enforce
public rights created by statutes within the power of Congress to enact, the 7th Amendment does NOT
bar Congress from assigning the fact-finding function to an administrative forum with which a jury
would be incompatible.
 7th Amendment does not require right to jury trial when none was required before—this is a
NEW cause of action! Congress may create a new cause of action enforceable by an
administrative agency for which there is no jury trial!
 This case is only applied to administrative courts.
 Decisions of administrative tribunals are still subject to review by federal courts of appeals.
CD Notes:
Jury Trial: 6th Amendment is criminal trial, 7th Amendment is civil trial.
Law courts were separated from the equity courts. Jury was allowed for law courts but not for equity
courts. What do you do in a mixed law-equity case??? Damages Versus Injunctions!
Equitable = no jury, legal = jury
1959: Stunning reversal! Beacon Theatres v. Westover—an essay of praise for the jury trial system.
This case magnified the availability of the jury trial right in mixed cases.
***Mixed law/equity case, equitable claim with a compulsory legal counterclaim.
~Clean-up doctrine = function of the historical fact that there were divided courts in England, he noted
this was no longer true.
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Look at center of gravity of the case
Justice Black: 7th Amendment CONSTITUTIONAL RIGHT to a jury trial. Embrace opportunities to
expand it!!! Don’t use clean-up doctrine or center of gravity approach. In a merged system, we should
try to make sure that any critical issue that historically would have been tried to a jury should still be so
tried.
(1) Purely legal issues (DAMAGES)—JURY
(2) Purely Equitable Issues (Injunction, specific performance)—Judge
(3) *Issues that are common to both the legal side and to the equitable side of the case.
Presumption in FAVOR of jury trial. Just because there is an amalgamation, this should not
cause anyone to lose the jury trial! That legal issue should go to the jury, and the jury’s
resolution of that issue is binding on the judge.
J. Black’s almost cavalier determination—look at the issue, do not characterize the entire case!
-on exam, take the hypothetical, announce the Beacon Theatre proposition, analyze the case and
BREAK IT DOWN into its constituent issues. Determine whether the cases are legal, equitable, or
common.
~~~~~~~~Stream pollution. Plaintiff wants polluter enjoined, and wants damages. ISSUE I =
pollution! Pollution issue is central to BOTH ISSUES! It is common and thus it goes to the jury.
ISSUE II = damages, legal, to jury. ISSUE III = should judge grant injunction? Judge decides it based
on how the jury characterized the case!
~~~~~~~~Bounder breaching contract involving chattels. Specific performance, damages. ISSUE I =
Was there a contract? Common issue, goes to jury. ISSUE II = Consideration, common, to jury.
ISSUE III = capable & willing to perform contract, goes to jury. ISSUE III = BREACH? Common
issue, goes to jury. ISSUE IV = damages to jury. ISSUE V = specific performance, to judge but based
on jury’s fact-finding.
Beacon Theatres after:
Dairy Queen v. Wood = more striking case than Beacon, moved an entire area of law from equity over
to the law side.
TRIAL: Selection of trier of fact
THREE Purposes of VOIR DIRE
1
Aid challenge for cause
2
Aid peremptory challenge
3
Try to make an opening statement to the jury
NARROWING the JURY POOL
~Source List—commonly this is voter registration, driver’s license lists, questionnaire is mailed out to
the source list
~Master List—qualified, eligible jurors (from answered questionnaires)
~Array—people who show up for summons date
~Venire—group of people from which the actual jury is chosen; this group goes through voir dire
~Panel—group chosen to sit on the jury
Rule 47—Specifies the number of peremptory challenges
Challenge for CAUSE: Extreme bias = not eligible for service
People v. Currie (Page 1056)—test for excluding groups of people from early stages of jury selection
(source list, master list, array)—excluding groups versus individuals; prima facie violation of fair
cross-section requirement
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Group alleged to be excluded is a distinctive group in the community
Not fair and reasonable representation of this group in the venire
Under-representation is due to SYSTEMATIC EXCLUSION of that group in the jury selection
process
In this case, the process was RACE-NEUTRAL; county is not required to take affirmative
actions to ensure fair representation
If prima facie case is established, burden shifts to prosecution to provide either more precise
statistical showing that no disparity exists or justification for the procedure resulting in the
disparity of the venire
Kiernan v. Van Schaik (Add’l Materials, page 106)—abuse of discretion to deny counsel the right to
ask certain questions during voir dire which would have aided the right to peremptory challenges and
challenge for cause. Attorney here wanted to ask questions about insurance!
PEREMPTORY CHALLENGES—4 Alternate Approaches
1
Traditional peremptory challenges: CJ Burger’s dissent in BATSON
a. Eliminates extremes of partiality, harm in articulating reason for challenge as it may
be somewhat offensive yet true
2
Peremptory “light”—BATSON
a. Excuse for ANY reason except on the basis of race
3
Eliminate peremptory!—Marshall’s concurrence in BATSON
a. Eliminate it altogether since bias cannot be eliminated from the process
4
Jury chair choosing the rest of the jury
a. Jury chair may have biases
b. Parties will never agree on a jury chair, and jurors would tend to defer to the chair’s
judgment during deliberations
c.
Strauder case—purposeful exclusion of blacks from master list denies black defendant equal
protection; the jury is to be selected based on non-discriminatory criteria.
*Swain case—right to a jury drawn from a cross-section of the community but NO RIGHT to a jury of
a specific makeup; required a showing of a pattern of systematic exclusion. In this case, the Supreme
Court recognized that a state’s purposeful or deliberate denial to blacks on account of race of
participation of jurors in the administration of justice violates the equal protection clause.
*After Swain, courts held that proof of repeated striking of blacks over a number of cases was
necessary to establish a violation of the Equal Protection Clause. But since this interpretation has
placed on defendants a crippling burden of proof, the court here rejects this evidentiary formulation.
Batson v. Kentucky (Add’l Materials, page 114)—PRIMA FACIE case of being denied equal
protection through government use of peremptory challenges to exclude members of defendant’s race.
 D is a member of a cognizable racial group (no longer required) and prosecutor has used
Challenge to remove jurors of the same racial group.
 D may rely on fact that peremptory challenges constitute a jury selection practice that would
allow for discrimination
 D must show that the facts and circumstances rise to an inference that the prosecutor used the
challenges to exclude jurors on account of race.
FACTS—Peremptory challenges were used to strike all four blacks; defendant here was black. Jury
ended up being composed of all whites; the defense counsel moved to discharge the jury since it
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violated petitioner’s right to a jury drawn from a cross-section of the community and to equal
protection under the laws.
HOLDING—Peremptory challenges based solely on race violate equal protection!
A black defendant may make out a prima facie case by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose. The ultimate issue is whether the state has
discriminated in selecting the defendant’s particular venire.
Marshall, concurring, wants all peremptories abolished since they have the potential to distort the jury
process by permitting the exclusion of jurors on racial grounds.
BURGER dissent: the peremptory challenge is an important right in our judicial system. Permitting
unexplained peremptories strengthens our judicial system.
Rehnquist dissent: peremptories are always used to exclude jury members of the same race as
defendant.
RULE 47(a) gives broad discretion to the individual district judge. In civil cases in federal court, each
party has 3 peremptory challenges.
JEB (Add’l Materials Page 136)—peremptory challenges based solely on gender violate equal
protection
Edmonson v. Leesville Concrete Inc. (Page 1072)—race-based exclusion violates the equal protection
rights of the challenged jurors.
Leesville, during voir dire, used two (out of three) of its peremptory challenges to remove blacks.
Edmonson pointed to the court’s decision in Batson and asked Leesville to give a race-neutral
explanation for striking the two jurors.
Defendant can be a member of ANY race; also, extends Batson to civil trials.
1991 Powers v. Ohio case: the rule of third-party standing means that a defendant may raise the
excluded juror’s equal protection rights. Such discrimination, however, must be attributed to state
action.
O’Connor’s dissent—not everything that happens in the courtroom is state action. The action of a
private attorney exercising a peremptory challenge is NOT state action!
RECUSAL OF JUDGES: Liljeberg v. Health Services Acquisition Corp. (Page 1082)—issue of
disqualifying a judge!
Governing statute—28 USC Section 455—on disqualification
In this case, Judge Collins sat and decided the case without a jury. He found for Liljeberg; later,
respondent found out that Judge Collins had been a member of the Board of Trustees of Loyola
University who had an interest in Liljeberg prevailing in the lawsuit.
SCIENTER is not an element of a violation of Section 455(a). What is important is the
APPEARANCE of partiality! It is appropriate to consider the RISK of injustice to the parties in the
particular case, the RISK that the denial of relief will produce injustice in other cases, and the risk of
undermining the public’s confidence in the judicial process.
It was accepted here that the judge did not have actual knowledge of his supposed interest while the
case was being tried.
PAGE 1090—Factors that may lead someone to question a judge’s impartiality.
HOLDING: Judgment is vacated; new trial!
FRCP 60(b) provides a procedure whereby a party may be relieved of a final judgment.
 Any judge shall recuse himself in any proceeding in which his impartiality might reasonably be
questioned.
 Judge shall disqualify himself in the following circumstances:
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o Has personal BIAS or prejudice concerning a party or personal knowledge of disputed
facts concerning the proceedings
o Served as a lawyer in the matter
o Served in government employment and participated as counsel concerning the
proceeding or expressed an opinion concerning the merits of the case
o Knows that he or a family member (individually or as a fiduciary) has a financial
interest in the subject matter in controversy
o Is a party known to have an interest that could be affected by the outcome, or it likely to
be a material witness
***You do not want to give the appearance of impropriety, depends on public perception, not
necessarily whether the judge was actually aware or was actually affected by the conflict of interest
***Doesn’t require actual knowledge—if a reasonable person, knowing the circumstances, would
expect that the judge would have actual knowledge, then Section 455 has been violated
DUTY to not recuse yourself unless there is a valid reason!
TRIAL: Controlling the Jury
I.
II.
Judgment as a matter of law motions
a. Rule 50—directed verdict/jnov/judgment as a matter of law
i. If 50a motion is granted and then overturned on appeal, you have to go back
through the whole trial again
ii. If 50b motion (jnov) is granted and then overturned on appeal, you just have to
reinstate the jury verdict
iii. Motions test the sufficiency of the non-moving party’s evidence to meet its
burden of production
b. Simblest v. Maynard (Page 1097): standard for JNOV motion, whether the evidence is
such that without weighing the credibility of the witnesses or the weight of the
evidence, there can be but one conclusion as to the verdict that reasonable men could
have reached, draw all inferences in favor of the non-moving party
i. HOLDING: Affirms the action of the federal trial judge who set aside the
$17,125 verdict for the plaintiff and entered JNOV for the defendant.
ii. FACTS—Plaintiff alleged that the traffic light was green in his favor as he
entered and approached the intersection but then a power failure extinguished
the light. Collision between plaintiff and fire truck resulted. All other witnesses
testified that the power failure occurred fifteen minutes prior to the collision.
Plaintiff and one other woman did not hear the siren; everyone else said the
lights were going off. A reasonable jury can choose who to believe! The court
works it way around this discrepancy, saying that just because the plaintiff did
not see the siren does not mean that it was not going off (issue of contributory
negligence and strict liability via statute).
iii. Plaintiff saying he didn’t see the light flashing (NOT EQUAL TO) the light was
not flashing
c. Sioux City v. Stout (Page 1106): directed verdict was not appropriate since reasonable
minds could differ on the result. ISSUE: Negligence, injury sustained upon a turntable
belonging to the company. Jury was at liberty to find for the plaintiff; jury could
believe whomever.
d. A jury is permitted to be unreasonable so long as at least one party has testified to the
evidence.
New trial motions
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a. Rule 59: new trial motion, standards for new trial. Rule 59(b) specifies that motion for
new trial must be served not later than ten days after the entry of judgment.
1. Options other than allowing a verdict to stand: (a) JNOV or judgment as
a matter of law (b) order a new trial.
ii. When there are external influences on the jury
iii. When the verdict is not supported by the evidence
iv. Procedural problem—TANNER
v. Evidentiary grounds—SPURLIN
b. New trial motions are not immediately appealable!
c. Tanner v. United States: jurors may only testify about external prejudices or outside
influences; a new trial cannot be granted based on juror testimony on alcohol and
drug use by other jurors during the trial and deliberations. DISSENT: Juror
intoxication is part of outside influence!
d. Spurlin v. General Motors Corp.: standard for new trial; motion should not be granted
unless the verdict is against the great weight of the evidence
i. This is a diversity suit that arises out of a school bus crash which occurred when
the bus’s brakes failed. Jury had returned a verdict for the Plaintiff. District
court granted JNOV. HOLDING: The evidence offered at trial on the safety of
the braking system as described in the case was more than sufficient to
withstand a motion for JNOV.
ii. JNOV: if there is direct, conflicting testimony, case MUST go to a jury
iii. Conflicting testimony must be on relevant issues
e. O’Gee v. Dobbs House, Inc.: standard for granting a new trial motion when amount of
damages is challenged; when amount is so high that it would be a denial of justice to
permit it to stand. The initial judge affirmed the issue of liability but remanded to
district court with instructions to grant Dobbs a new trial on the issue of damages unless
plaintiff signifies a willingness to accept a reduction in damages to $85,000.
HOLDING: The denial of the motion to set aside the verdict as excessive was an
ABUSE OF DISCRETION!
i. Remittitur: conditional denial of a new trial motion based on sufficiency of the
evidence on damages, conditional on plaintiff’s acceptance of a lower award
amount. Defendant’s motion for a new trial is denied when remittitur is granted.
In theory, remittitur should prevent wildly large verdicts—ALLOWED
ii. Additur: conditional denial of plaintiff’s motion for new trial if defendant agrees
to increase damage award to an amount specified by judge—NOT ALLOWED
in federal court
TRIAL: Bench trials
THREE STANDARDS of review for appellate courts:
(1) De novo review
a. No deference given on legal conclusions made by lower courts
(2) Clearly erroneous
a. Standard to review findings of fact by a judge
i. Based on witness testimony, documents, or inferences derived from testimony or
documents
(3) Abuse of discretion
a. New trial rulings, injunctions, preliminary injunctions, Rule 60, 1292(b) certification
Anderson v. City of Bessemer City (Page 1141)—findings of fact shall not be set aside unless they are
clearly erroneous; due regard shall be given to the trial court to judge the credibility of witnesses
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***Title VII backpay actions are equitable actions  no right to jury trial!
The Court of Appeals in this case had concluded that there was clear error in a District Court’s finding
of discrimination and reversed. Because the Supreme Court’s reading of the record convinces us that
the Court of Appeals misapprehended and misapplied the clearly-erroneous standard, this court
REVERSES.
FACTS—In hiring the Recreation Director, Anderson was discriminated against because she was a
woman.
A finding of intentional discrimination is a finding of fact.
Relief from Judgment and Appeal
Rule 54—Defines a judgment: decree that is entered by a TRIAL COURT, decree from which appeal
lies
Rule 58—Separate document exception
Rule 79—Entered and timestamped by clerk
Rule 60—Relief from JUDGMENT
(a) Clerical mistakes
(b) (1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence that
could not have been discovered through due diligence in time to move for a new trial; (3)
Fraud, misrepresentation, or misconduct of the adverse party; (4) Void judgment; (5) Satisfied,
released, or discharged judgment; (6) Any other reason justifying relief.
Rule 60 motion is filed with the judge who issued the judgment. Standard of review = ABUSE OF
DISCRETION
**Only trial courts can enter an official judgment!
When a judgment orders a party to perform a specific act and the party fails to perform within the time
ordered, the court generally will direct that the act be done by some other person authorized by the
court to act for the recalcitrant party and at his expense.
“Mandate” = Appellate court equivalent to judgment
Consequence of judgment = right to appeal
Ackerman v. United States (Add’l Materials Page 141)—motion for relief from judgment under RULE
60b6 was CORRECTLY DENIED because insufficient showing of justifiable circumstances.
 Ackerman made a decision NOT to appeal when Keilbar did and decided not to appeal even
when Keilbar’s case was thrown out. He claimed his failure to appeal is EXCUSABLE for the
reason that he had no money or property other than his home in Texas. Alien Control
Commissioner advised the Ackermanns to hold onto their home, because in order to appeal
they would have to sell it. The Court said the Ackermanns had no right to place such reliance
on the Alien Control Commissioner. The Ackermanns took a risk, but it was a risk based on
free choice! Relying on BAD LEGAL ADVICE is not a sufficiently justifiable circumstance!
 In 1948, Ackermann filed a motion in the District Court to set aside a judgment entered in 1943
in that court canceling his certificate of naturalization.
 Ackermann waited until 1948 to appeal because this was when Rule 60(b)6 was added. “Any
other reason” – allowed and EXEMPT from the statute of limitations!
o Rule 60(b)1: a motion for relief because of excusable neglect must be made not more
than one year after judgment was entered.
o Rule 60(b)6: applies if any other reason justifying relief is present, not subject to time
limitation.
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
POLICY behind this case: Judgments should be final; people rely on them on many different
levels. Every time someone loses, they could have had a better lawyer. If you allow this as an
excuse, you would never get a final judgment!
 The Court distinguishes this case from the Klapprott case: he tried harder and was less well-off.
His case was one of extraordinary circumstances.
 DISSENT in this case: The majority’s interpretation frustrates the purpose of amended rule
60b6. The Ackermanns had the right to rely on the US official!
Cases show a strong tendency to grant relief from a default judgment fairly readily, but to give relief
from a non-default judgment only in the case of plain fraud or mistake amounting to inadequacy of
representation.
US v. Beggerly (1998): Supreme Court held that an independent action under Rule 60 is available only
to prevent a grave miscarriage of justice.
APPEAL (Page 1257 to 1292)
The loser in a decision involving substantial stakes should have the right to bring the decision before
an appellate court to consider the loser’s assertions that either (1) the court below failed to adhere to
proper procedure in reaching the decision or (2) the decision was based on misapplication of the
substantive law or gross misapprehension of the facts.
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The GENERAL RULE is that orders entered during the course of the trial proceeding
(INTERLOCUTORY ORDERS) may be reviewed in connection with an appeal from
final judgment but may NOT be reviewed prior to that time by means of an interlocutory
appeal.
As a general rule, a matter cannot be complained of on appeal unless objection was intelligibly
made in the trial court at the time the event or ruling occurred or promptly thereafter.
The scope of review of injunctive relief has traditionally been limited to “Abuse of Discretion.”
NOTICE of appeal is the one jurisdictional prerequisite to an appeal.
Law of Appeals—Statutory provisions establishing appellate jurisdiction:
1291: Final decisions of district courts
1292a: Injunctions, receivers
1292b: Certification
1651: Mandamus (Writ filed against trial judge by appellate court)
Rule 54b: Trial judge entering partial judgment (Converts interlocutory order into a final
judgment) [An interlocutory order is not final and thus usually not subject to appeal]
Commencement: Notice of appeal filed in court. Certification requires petition to the trial judge—
must be approved by trial judge and appellate court.
Major changes in appellate procedure in the last 25 years have been with regard to oral argument and
publication of opinions.
Stays Pending Appeal: Have to meet a standard similar to that for preliminary injunctions
-Assessment of likelihood of success on the merits
-Harm to the parties
-Public interest
BASIS FOR APPEAL:
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-ISSUE MUST have been RAISED in the lower court! (However, it may be relaxed if the
public interest so requires)
-Appeal is decided on the record—no new evidence—briefs, and sometimes oral arguments
Disposition
-Appellate opinion, mandate, or settlement
-Rule 16 applies to court of appeals settlement negotiations
TIMING—
Supreme Court review of state high court decisions is by the same standards as courts of appeal
review lower court decisions. Some judgments which are not final are immediately appealable
because of their importance and the impact the judgment would have if it was decided incorrectly.
 In civil cases, the notice of appeal must be filed within 30 days after entry of judgment except
where the US is a party to the suit, in which case 60 days is allowed.
 In a criminal case, notice must be filed within 10 days by the defendant and within 30 days by
the government if it is authorized to appeal.
 Federal Appellate Rule 4(a)(5) allows additional time, beyond the normal 30 days after entry of
judgment, to file a notice of appeal upon showing of excusable neglect or good cause.
Cox Broadcasting Corp. v. Cohn (Page 1270)—Sets out FOUR categories of cases which are
reviewable by the Supreme Court in exception to the general rule (appeal only from final judgment)—
ultimately, if the Court wants to review the judgment, it will find a way to do so.
ISSUE: Whether, consistently with the 1st and 14th Amendments, a State may extend a cause of action
for damages for invasion of privacy caused by the publication of the name of a deceased rape victim
which was publicly revealed in connection with the prosecution of the crime.
US Supreme Court has appellate jurisdiction with respect to state litigation only after the highest
state court in which judgment could be had has rendered a FINAL JUDGMENT or DECREE.
[[[But this rule has not been administered in such a mechanical way]]]
FOUR categories of cases in which the Court has treated the decision on the federal issue as a
final judgment for the purposes of 28 USC 1257:
(1) First category—Those cases in which there are further proceedings—even entire trials—yet to
occur in the state courts but where for one reason or another the federal issue is conclusive or
the outcome of further proceedings is preordained. The judgment of the state court on the
federal issue is deemed final.
(2) Second category—cases like Radio Station WOW and Brady v. Maryland, in which the federal
issue, finally decided by the highest court in the state, will survive and require decision
REGARDLESS of the outcome of future state court proceedings.
a. The ABOVE two categoriesthe federal issue would not be mooted or otherwise
affected by the proceedings yet to be had because those proceedings have little
substance, their outcome is certain, or they are wholly unrelated to the federal question.
(3) Third category—Those situations where the federal claim has been finally decided, with further
proceedings on the merits in the state courts to come, but in which later review of the federal
issue cannot be had, whatever the ultimate outcome of the case. Thus, in these cases, if the
party seeking interim review ultimately prevails on the merits, the federal issue will be mooted;
if he were to lose on the merits, however, the governing state law would not permit him again
to permit his federal claims for review. The Court has taken jurisdiction in these circumstances
prior to completion of the case in state court.
(4) Fourth category—Those situations where the federal issue has been finally decided in the state
courts with further proceedings pending in which the party seeking review here might prevail
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on the merits on non-federal grounds, thus rendering unnecessary review of the federal issue by
this Court, and where reversal of the state court on the federal issue would be preclusive of any
further litigation on the relevant cause of action rather than merely controlling the nature and
character of, or determining the admissibility of evidence in, the state proceedings still to come.
In these circumstances, if a refusal immediately to review the state court decision might
seriously erode federal policy, the Court has entertained and decided the federal issue, which
itself has been finally determined by the state courts for purposes of state litigation. Miami
Herald Publishing v. Tornillonewspaper refused to print a candidate for public office’s reply
to an editorial criticizing him, against state statute.
a. These above two categoriesthe federal issue would be mooted if the petitioner or
appellant seeking to bring the action here prevailed on the merits in later state court
proceedings, but there is nevertheless sufficient justification for immediate review of
the federal question finally determined in the state courts.
HOLDING: Supreme Court has jurisdiction to review the judgment of the Georgia Supreme Court
rejecting the challenge under the 1st and 14th Amendments to the state law authorizing damage suits
against the press for publishing the name of a rape victim whose identity is plainly revealed in the
course of a public prosecution. Here, the GA Supreme Court’s judgment is plainly final on the federal
issue and is not subject to further review by the state court.
Digital Equipment Corp. v. Desktop Direct Inc. (Page 1278)
Judgment which vacates a settlement agreement is NOT a COLLATERAL ORDER within the
meaning of Section 1291 and is therefore NOT immediately appealable.
Collateral Orders are IMMEDIATELY APPEALABLE!
FACTS: Lawsuit settled before trial, Digital paid Desktop to use the name “Desktop Direct.” Later,
Desktop moved to vacate the dismissal (that resulted from settlement) and rescind the settlement,
alleging misrepresentation of material facts during settlement negotiations by Digital. The District
Court granted the order to vacate the dismissal and deny effect to the settlement. The Court of Appeals
dismissed the appeal for lack of jurisdiction.
TREND-----Very little is considered a collateral order.
HOLDING: An order denying effect to a settlement agreement does not come within the narrow ambit
of collateral orders.
Collateral Orders
Denials of immunity
Denying Bail (but NOT granting bail!)
Denial of Double Jeopardy claims
Refusal to recuse
Denying qualified immunity
NOT Collateral Orders
Summary judgment
Granting vacation of settlement
Granting Double Jeopardy claims
Denying lack of personal jurisdiction
Denying new trial
Denying 12(b)6
Collateral order—mistake cannot be remedied if you wait until after a final judgment is rendered to
grant an appeal
Collateral orders are conclusive, completely separate from the merits of the case, and are effectively
un-reviewable on appeal of final judgment
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Kerr v. US District Court (Page 1284)—mandamus should only be issued in drastic circumstances
because it is an EXCEPTIONAL remedy. Party must have no other adequate means of obtaining relief
and show that the right to issuance of the writ is “Clear and Indisputable.”
 FACTS: Defendants in a class action sought writs of mandamus from the US Court of Appeals
to compel the District Court to vacate two discovery orders. Court of Appeals refused to issue
the writs! (NOTE: If discovery rulings were appealable, we would be in trouble because there
are so many discovery rulings).
 HOLDING—In the circumstances of this case and in light of the availability of an alternative,
less extreme, path to modification of the challenged discovery orders, issuance of the writ is
inappropriate. Mandamus is an extraordinary remedy; mandamus actions have the unfortunate
consequence of making the district court judge a litigant.
 When writs are issued, it is because the judge did something pretty bad:
o Extraordinary judicial usurpation of power
o Unlawful exercise of jurisdiction
o Neglect of duty
 Conditions to the issuance of a writ of mandamus:
o The party seeking issuance must have NO OTHER ADEQUATE MEANS to attain the
relief he desires
o The party must satisfy the burden of showing that his right to issuance is clear and
indisputable
o In this case, petitioners only request that production of the confidential documents not
be compelled without a prior informed determination by the district court that plaintiffs’
need for them in the action below outweighs their confidentiality.
o Files requested—Adult Authority and also prisoners’ files
Collateral-order doctrine: a doctrine allowing appeal from an interlocutory order that conclusively
determines an issue wholly separate from the merits of the action and effectively unreviewable on
appeal from a final judgment.
An interlocutory decision is a decision that is not the final judgment.
Collateral Effects of a Judgment
EFFECTS OF A JUDGMENT
 Interest starts to run on monetary judgments in some areas of law
 Costs are assessed
 Right to appeal
 Preclusion of claims in subsequent litigation
RES JUDICATA—CLAIM PRECLUSION
 Claim = cause of action; “RES JUDICATA” = thing adjudicated, refers to the finality of
judgments, in a broad sense. In the narrow sense, it refers to claim preclusion.
 If there is an issue of res judicata, the cases will be, e.g. Moitie I and Moitie II.
 Can only have claim preclusion between the same parties (but does not have to be on the same
side  P v. D, Defendant must bring all possible claims in a counterclaim); cannot assert claim
preclusion against a party that was not represented in the first litigation
 Applies to all claims that could have been raised in the first suit (even if they were not raised!)
 FEDERATED DEPARTMENT STORES v. MOITIE (Page 1159)—Res judicata effects are
not altered by the fact that the final judgment in the first suit may have been wrong or rested on
a legal principle that was later overruled in another case
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o HOLDING: The 9th Circuit did NOT create a valid exception to the doctrine of res
judicata.
 FACTS: In 1976, the US brought an antitrust action against Federated alleging
that they violated the Sherman Antitrust Act by agreeing to fix the retail price of
women’s clothing in northern California. Civil actions were subsequently filed
by private retail purchasers, including MOITIE.
 Some plaintiffs appealed but Moitie refilled in state court, purporting to raise
only state-law claims but actually made allegations similar to those made in
prior complaint!
 State law and federal law claims are NOT the same, but we thus have the
wording “claims that should have been raised.”
 When Moitie II finally came before the Court of Appeals (in the meantime, the
Supreme Court held that retail purchasers COULD suffer an injury to their
business or property under the Antitrust act!). But Moitie II was the refiled state
claim.
 Ct of Appeals—while a strict application of res judicata would preclude review
of Moitie II, the court asserted that non-appealing parties may benefit from a
reversal when their position is closely interwoven with that of appealing parties.
Because the instant dismissal rested on a case that had been effectively
overruled, the doctrine of res judicata must give way to public policy.
 HOLDING—Decision of the Ct of Appeals was CLEARLY ERRONEOUS!
There is no injustice by applying the accepted principles of res judicata, because
the doctrine itself serves vital interests.
o State law allegations in the second suit were essentially the same as the federal
allegations already litigated
DAVIS v. Dallas Area Rapid Transit (Page 1166)—since the conduct of the second suit came from the
SAME NUCLEUS OF OPERATIVE FACTS (Transactional test), it should have been raised in the
first suit. Defendant should have sought a stay pending the EEOC right to sue letter!
FACTS: Summary judgment for Dallas in the Title VII case involving race discrimination, retaliation,
and hostile work environment.
Claims in Davis II were based on alleged conduct predating the lieutenant promotion process, which
was the subject of Davis I. It does not matter that Davis was waiting for approval to sue; if he could’ve
brought the Davis II claims in Davis I, then there is CLAIM PRECLUSION!
FOUR ELEMENTS for a claim to be barred by res judicata
1
Parties in BOTH SUITS are IDENTICAL
2
Court must have had proper jurisdiction over prior suit
3
Prior judgments must have been final and on the merits
4
Plaintiff must raise the same cause of action in both suits
TRANSACTIONAL TEST: Whether two actions are based on the same nucleus of operative facts and
whether all claims arise from a continuous series of events and conduct
COLLATERAL ESTOPPEL—Issue Preclusion
 Issues are narrower than claims
 MUTUALITY RULE (no longer totally relevant): one party should not be bound by an adverse
judgment unless, if the judgment had gone the other way, the opposing party would also have
been bound.
o Hypothetical: A is injured by B and C, and loses suit against B
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o A is not bound by judgment in the suit against C because since C was not a party to the
suit against B, C would not have been bound by that judgment had A won.
o Note that the standard of proof is LOWER for civil cases than criminal cases: example
of OJ winning the criminal trial, he could still lose the civil trial because the standard is
lower!
o Defensive issue preclusion is allowed more frequently!
Parklane Hosiery Co. v. Shore (Page 1212)
FACTS: This is a stockholder’s class action suit. Complaint is that Parklane issued a materially false
and misleading statement in connection with a merger. Before this suit came to trial, the SEC filed suit
against the same defendants! (Bench trial, very quick!) The Supreme Court here does NOT address the
issue of the 7th Amendment right to jury trial.
Respondent moved for partial summary judgment, asserting that Parklane was collaterally estopped
from relitigating the issues that had been resolved against them in the SEC action.
BLONDER-TONGUE case: The Supreme Court abandoned the mutuality requirement within the
context of PATENT LITIGATION. The court said it was a misallocation of resources to enforce the
mutuality rule.
PARKLANE HOLDING—The preferred approach is not to preclude the use of offensive collateral
estoppel but to grant trial courts broad discretion to determine when it should be applied. In the instant
case, none of the circumstances that might justify reluctance to allow the offensive use of collateral
estoppel is present. Also, the plaintiff could not have joined the injunctive action brought by the SEC
even had it so desired. Because SEC suits are serious matters, Parklane had every incentive to litigate
to its fullest ability!
7th AMENDMENT ISSUE:
Katchen v. Landy: An equitable determination can have collateral estoppel effect in a subsequent legal
action and this estoppel does NOT violate the 7th Amendment!
[[[Rehnquist dissents, saying that petitioners were denied their 7th Amendment right to jury trial!]]]
General rule—in cases where the plaintiff could have easily joined in the earlier action or where the
application of the offensive estoppel would be unfair to the defendant, a trial judge should not allow
the use of offensive collateral estoppel (issue preclusion).
 DEFENSIVE collateral estoppel: A is injured by B and C
 A vs. B  B wins
 A vs. C  A is estopped
 GENERALLY ALLOWED!
 OFFENSIVE collateral estoppel: A and B are injured by C
o A vs. C  A wins
o B vs. C  C is estopped because he already lost!
o Should NOT be allowed where Plaintiff would have joined in the
earlier litigation or application would be unfair to Defendant
o Trial courts are given broad discretion over whether to allow the
use of offensive collateral estoppel
o The Supreme Court has held that offensive, nonmutual collateral
estoppel should not be available against the US.
o Why offensive issue preclusion is bad:
 Increase in litigation
 May be unfair to D since D may not have defended
vigorously in the 1st suit.
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Critical Questions:
 Was the issue litigated in the first case?
 Was the issue determined in the first case?
 Was that determination necessary to the first judgment?
If OFFENSIVE collateral estoppel, then ask:
 Did Defendant have incentive to litigate vigorously in the first suit?
 Is judgment inconsistent with prior judgments?
 Are there procedural opportunities in the second suit that were unavailable in the first suit?
If the PLAINTIFF could have EASILY joined the earlier action or if the application of OFFENSIVE
issue preclusion would be unfair to the defendant, then it should not be allowed!
MERGER—When Plaintiff wins the 1st judgment, her claims are merged into judgment
BAR—When Defendant wins 1st judgment, subsequent claims are barred
Recognition of Judgments from other jurisdictions:
CSOHAN v. UNITED BENEFIT LIFE INSURANCE CO. (Page 1251)—Ohio court only had
personal jurisdiction over the daughter whereas California had personal jurisdiction over both mother
and daughter. Therefore, California was the more proper court to issue judgment in this case.
Plaintiff = beneficiary in a life insurance policy
Interpleader: Insurance company doesn’t know who the proceeds go to, but asked for a preliminary
injunction to issue to restrain plaintiff from proceeding with her prior suit in Ohio.
California vs. Ohio courts!
Rule 22: Interpleader: Insurance company gets attorney’s fees
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