Civil Procedure:
A.J.C. 2009
Types of Jurisdiction
(1) In Personam Jurisdiction
a. General Jurisdiction: Occurs if company’s activities in a state are of such a continuous and systematic nature that the
corporation’s relations to the forum state are no different than those of a resident. Jurisdiction over any claim in state, even
one completely unrelated to in-state activities.
b. Specific Jurisdiction: Covers only the specific act which satisfied the minimum contacts standard.
(2) In Rem Jurisdiction: Juris asserted over a person’s real or personal property in-state. Affects interests of all parties in a piece of property;
suit is limited to the property itself.
(3) Quasi In Rem Jurisdiction: Affects interest of one party in a property
a. Type 1: Resolves a dispute about the property itself.
b. Type 2: Establishes rights to property where the underlying dispute is not about property.
28 USC § 1655 – authorized territorial jurisdiction for in-rem and some quasi in-rem cases. Applies to lien/titles existing prior to the suit &
present in the district. IF the absent D doesn’t appear, the judgment only affects the property that is the subject of the action.
Rule 4n2 – If PJ cant be obtained after reasonable efforts to contact D, ct may assert juris over D’s assets found in the district.
Satisfying jurisdiction
1. Is it statutory?
a. State long-arm statute: Rule 4(k)(1)(A)
b. Bulge jurisdiction: Rule 4(k)(1)(B)—for 3rd parties (r14) & indispensibles (r19)
2. Is it constitutional?
a. Minimum contacts (Int’l Shoe)
b. Reasonableness test (World-Wide Volkswagen)
PERSONAL JURISDICTION
Scope of Personal Jurisdiction
• State law provides the ultimate source of personal jurisdiction (Rule 4(k)(1)(A))
• Federal statute may also provide federal court with personal jurisdiction as per Rule 4(k)(1)(C)
• R4k2: If no state can exercise personal jurisdiction, allows personal jurisdiction when case arises out of federal law
• Limit: Due Process – 14th Amendment
I. General Jurisdiction:
Systematic contacts (Hall)
Presence (Tag Service)
• Burnham - even after min contacts, presence still enough under 14th Amendment (Husband visits kids for 3 days, served by wife)
• Grace v McArthur – served on plane flying over AK
• Darrah v Watson – sued in VA while on business for a few days
Exception:
• Force or Fraud 2R§82 – State wont exercise judicial juris. obtained by fraud/unlawful force over D/D’s property
Wynam v Newhouse – D had meritorious relations w/P. P wrote mother dying, entreated D to come, served in FL.
• Immunity from service of process (when presence if purpose of participating in another lawsuit as party, counsel, witness)
Domicile
• Where a Person lives, lived, chooses to say indefinitely. Even if not currently in the state. – Milliken v Meyer (served in another state)
• Corporation – place of incorporation + primary business activities
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Consent – appearance, contract, seeking license to do business within the state
You can waive T. Jurisdiction, and appear to contest if you wish. (most Δ probably won’t)
Implied consent no longer valid – Hess - Driving car in MA appointed state official as agent = implied consent
II. Specific Jurisdiction
Territorial Jurisdiction– When D is out of state
(1) State-Long-Arm + (2) Constitutional under 14th Amend. Due Process (Minimum Contacts + Reasonableness)
(1) Long arm statutes (Rule 4k1A): calls nonresident D back to state to defend (Authorize jurisdiction of Δ based on specific types of contact)
Tortuous acts
• Committed Within State: Nelson v Miller – PJ if tortuous acts occurred within state + P states cause of action
• Committed Outside of State: If they foreseeable affect within the State
Calder v. Jones - SC, 1984
intentional & allegedly tortuous actions were expressly aimed at CA
Facts: Shirley Jones sues National Enquirer in CA for libel about her drinking habits. Reporter lived in FL but traveled to CA often on business. Editor
oversaw just about every function of the magazine.
Rule: When Δ’s acts outside the forum have foreseeable consequences in the forum, jurisdiction is valid.
Gray v American Radiator
Conduct from an injury inseparable from injury itself
Facts: Manufacturer of valve (OH) – installed in PA – shipped to ILL – Injured P
Constitutional: maybe not, bc no proof of any business conducted within the state  attempt to stretch long-arm statute to constitutional limits
(1) Constitutional under Due Process
Minimum contacts (# of contacts + level of relatedness)
o
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Casual + isolated not enough. Need specific acts/continuous & limited acts to convey specific jurisdiction, and pervasive acts to convey
general jurisdiction
“A corporation enjoying benefits/protection of laws of that state. The exercise of that privilege may give rise to obligations…”
>> Number of Contacts + Relatedness
Int’l Shoe Co. v. Washington - SC, 1945 | 163
Casual+Isolated not enough – High contacts / High relatedness
Facts: Π is a Delaware corp. w/ principal place of business in Missouri. Π employed 11-13 salesmen in Washington, commissions of $31K. Salesmen had
one sample shoe per pair & would rent out store space. Π doesn’t want to pay into the states unemployment fund.
Holding: P availed self, could expect/foresee suit, good reason to sue in state (activity arose in state), state interest to control disputes in state
Rule: Consider “quality & nature of contacts” w/ state. Sometimes a single contact will do, but not contacts that are “casual” or “isolated.”
Policy: Relationship between Δ, forum, and the litigation becomes the central issue.
Perkins v Benguet Consolidated Mining Co
Continuous business activities – High contacts / High Relatedness (general juris)
Facts: Gen juris granted OH for Phillipines mining co during Jap invasion. President moved to Ohio =, maintained co matters, kept office files,
correspondence, 2 bank accounts, directors mtgs, drew salary checks
McGee v. Int’l Life Ins. Co. -SC, 1957 | s
1 contact, high relatedness (specific juris)
Facts: Beneficiary of life insurance policy secured from Texas company in California. Defendant had no contact with California except for solicitation of
policy through the mail. Contract was delivered to P’s son.
Holding: “It is sufficient for purposes of due process that the suit was based on a contract w/ substantial connection w/ CA.”
Weighing State/P interests: State- protect citizens subject to K’s and insurance policies, P- inconvenience of travel to TX for suit
High contacts, High relatedness – even if didn’t step foot, could reasonably foresee
“reached out beyond” – VERY REASONABLE
Facts: R buys a BK then stops making franchise payments. Deals w/ HQ in FL & district office in MI. R’s partner goes to BK college in FL. It’s clear that any
“real” negotiations will happen w/ FL office. 21-year ongoing business relationship.
Issue: Will FL’s broad long-arm statute, allowing jurisdiction over “any person, whether or not a citizen or resident of this state” who “breaches a contract
in this state,” as long as action arises from the breach, hold up?
Holding: R deliberately “reached out beyond” MI, establishing minimum contacts w/FL. Even though he didn’t step foot into FL, his business associate
did. Further, this is not a case in which inconvenience of Π achieves “constitutional magnitude.” Thus, reasonableness test is passed.
Weighing: Burden on D substantial but expected, high interest of state to regulate in-state business, interest of P – convenience & predictability
Policy: There are no “talismanic jurisdictional formulas.” Indeed, dissent feels that R never “purposefully availed himself of the benefits & protections of
FL’s laws.”
Burger King Corp. v. Rudzewicz - SC, 1985 | 196
No Minimum Contacts
High contacts, Unrelated (no specific juris)
Significant contacts, but not significant enough for general juris.
Facts: Columbia helicopter company hired on a Texas pipeline venture in Peru. They go to TX to get the deal, buy choppers in TX & train their pilots in TX.
Money for the venture comes from TX. Copter crashes in Peru.
Holding: Δ’s contacts w/ TX not sufficiently continuous & systematic. Plus, contacts didn’t arise out of or relate to the cause of action.
Weighing State/P Interests: (against Due Process) no regulatory interest – esp toward negligence claim, P didn’t have good reason to sue
Helicoperos Nacionales v. Hall - SC, 1984 | 188
>> Directly Availed vs Tacit Concent
Directly Availed:
• McGee – one letter delivered to son
• Burger King – repeatedly reached out, could reasonably foresee
• International Shoe – purposely availed state’s protection/benefits
• Perkins – president reached out continuously
No Direct Availment (Unilateral Acts)
• WW Volkswagon – had nothing to do with OK
Hanson v. Denckla
- SC, 1958
Not purposeful + deliberate
Facts: Grandma establishes trust & contradictory will. Trust established in DE, grandma moves to FL. DE bank continues to be trustee (P).
Issue: FL rules trust void. DE rules trust valid. Does FL have PJ over DE trustee?
Rule: Δ must “purposely avail” self of the privilege of conducting activities in forum State, invoking the benefits/protections of its laws.
Holding: DE bank didn’t have office in FL or solicit business in FL. Remitted income to grandma in FL but never sent anything physically. (unlike Mcgee)
Mullane v. Central Hanover Bank - SC, 1950 | 281
Beneficiaries didn’t directly avail self
Kulko v. Superior Court - SC, 1979 | s
Tacit consent is not direct availment/benefit (unilateral not enough)
Facts: Couple divorces in NY, wife moves to CA. Gradually the kids join her there. Wife sues in CA court for more child support.
Issue: Does his tacit consent to the move constitute direct availment?
Holding: P was not purposefully directing self to or availing self of CA – this was unilateral act by wife/kids. No benefit.
Note: If diverse proceedings were in CA, there would be PJ
Facts: Judicial settlement of a pool of small trust estates; beneficiaries notified by publication, per NY banking law.
Reasonableness: D’s receive benefit, but likely don’t even know that trust is in their name. No purposeful availment. State interest: ease of
administrating over funds in-state
>> Stream of Commerce + Unreasonable (burden on foreign D’s too high)
• Gray - Manufacturer of valve (OH) – installed in PA – shipped to ILL – Injured P – Jurisdiction allowed
Unreasonable & Foreseeability
STREAM OF COMMERCE CONTROVERSY.
Unsure if Min contacts met but Reasonableness not met.
Facts: Asahi (Japan) (component manufacturer) makes valves. Cheng Shin (Taiwan) puts valves on tires. Gary Zurcher crashes Honda motorcycle, sues
Cheng Shin, which indemnifies Asahi. Z & CS settle. CS’s case against A remains.
STREAM OF COMMERCE CONTROVERSY: Judges aren’t in agreement and you can argue either way
• Some judges say: “Mere Awareness” is enough
• (minority) O’Connor Test: Awareness + Directly Targeting State (ie: marketing) <<< If you meet this test, you pass for sure
5-Factor Reasonable Test: Severe burden on foreign D, Little state reg. interest b/c st. law doesn’t apply to indemnity case w/foreign manuf’s..
Rule: Though the court agrees that jurisdiction doesn’t fly, a plurality claims that “The stream of commerce refers not to unpredictable currents or
eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.”
Policy: “Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.”
Asahi Metal v. Superior Court - SC, 1987 | 212
Unilateral action not enough. Foreseeability too far removed. No purposeful availment.
(No stream of commerce)
Facts: The Robinsons buy a car from Seaway VW in NY. On the way to AZ, they crash in OK & want to bring suit in OK against Seaway (retailer) &
distributor World-Wide VW (NY). (Reason for wanting these parties in the suit: to avoid complete diversity & prevent Δ from removing to federal court.)
Issue: Purposeful availment (benefit in collateral way)? Could he reasonably anticipate being hauled into ct there?
Holding: No purposeful availment. Contact = result of unilateral action by P driving to OK. Not foreseeable. Stream of commerce ends w/ Seaway/WW
Policy: “Every seller of chattels would in effect appoint the chattel his agent for service of process.”
World-Wide Volkswagen v. Woodson - SC, 1980 | 172
>> Property in State – must still establish minimum contacts
Old case
For Quasi-in-rem jurisdiction, property must be attached.
Pennoyer v. Neff - SC, 1877 | 147 (OVERRULED)
Constructive notice not enough except for personal status (ie: divorce)
You cant be served outside the state
Facts: Mitchell sues N in Oregon state ct for $253.14. Service is by publication for 6 successive wks in the Pacific Christian Advocate. N did not appear.
Default judgment against N for $294.98. N’s Oregon property attached & sold at sheriff’s sale to M for $341.60. M sells to P for undisclosed amt.
Holding: Power Theory – States don’t have authority over people through in-state property unless the property is 1st attached (brings under ct. control)
Rule: Fourteenth amendment: Due process.
Property isn’t sufficient to establish PJ when its not related to claim (Quasi-in-rem Type II)
Quasi-in-rem, In-rem, and In-personam distinctions no longer matter!
Facts: H. sues Greyhound officers & directors for violating their duties. H files quasi in rem type 2 suit against Δ’s shares in DE (unrelated to claim). The
weird thing: these guys are all officers & directors of a DE company, so in personam jurisdiction might should apply, but DE law bases jurisdiction not on
Δ’s fiduciary role, but rather on the presence of their property. (They changed this after the suit)
Rule: “all proceedings are against people”
Holding: Claims must be sufficiently related to property. Presence of the property alone does not constitute minimum contacts & reasonableness.
Shaffer v. Heitner - SC, 1977 | 250
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Kulko v. Superior Ct, said it also applies to individual as well as corporations
“Concurrent jurisdiction” – State ct can hear any case that can be heard in fed ct (unless Congress makes exception). Not true vice versa.
Does State have PJ? (over parties)
• Domicile – Milliken v Meyer
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Presence – doesn’t apply to corporations (when reps travel through), in state service (Burnham)
Consent (privilege of the D, which can be waived) – appearance, contract, seeking license to do business within the state
Territorial – Long-Arm-Statute (in-state tort, etc) + 14th Due Process (Min Contacts + Reasonableness)
Corporation – incorporation, doing business (corporate presence), consent
Necessity – Mullane (all beneficiaries)
Does Federal have PJ?
• Rule 4k1a: Only if state also has PJ
• Exceptions: Federal Statute can authorize, NECESSITY: no juris of any other state, or joined parties from Rule 14 of 19 w/in 100 miles of ct
Does State have SMJ? (over actions)
• General matter jurisdiction - over most claims – ie: tort, battery, K breach
Does Federal have SMJ?F
• Only if granted by Article III and Congress §1331 (cant be waived)
• (OR) Only if diverse §1332 (+Amt in controversy $75K)
Is venue proper? §1391
(a) Diversity – (1) Any district any D’s “resides” if all from same state, (2) Substantial events/property, (3)(Fallback) PJ of any D
(b) Not Diversity (1), (2), (3)(Fallback) where any D can be found
(c) Corp – “Resides” where PJ (and in that district only)
Minimum Contacts:
General Jurisdiction
• Natural Persons – domicile
• Corporations – incorporation, doing business
Specific Jurisdiction
• Claim arises out of / relates to contracts
• Foreseeability
• Who initiated the contacts?
• Purposefully directed
• Stream of Commerce
Reasonableness
 Interest of the forum state to provide redress to citizens
 Burden on D
 P’s interest in proceeding in this forum
 Interest of state in efficient conflict resolution (substance)
 Shared interest with other states in furthering substantive social policies (procedure)
1) State interests: provide redress
(YES) protect enforcement of K’s and insurance policies for its citizens (McGee)
(YES) regulate in-state business (Burger King)
(YES) ease of administration of funds in-state (Mullane)
(NO) – no regulatory interest of TX over crash in Peru, esp in a negligence claim (Helicopteros)
(NO) – little state interest to regulate b/c state law doesn’t deal with indemnity cases with foreign manufacturer (Asahi)
2) P’s interest in proceeding in this forum
(YES) inconvenient for insurance co. to travel to TX from CA (McGee)
(YES) convenience & practical – for suit to be litigated in FL headquarters (Burger King)
(YES) trustees received benefits, but likely don’t even know that the trust is in their name (Mullane)
3) Burden on D –
(NO) High but expected b/c could forsee that negotiations would happen in FL office franchise from MI (Burger King)
(YES) Severe burden on foreign D (Asahi)
4) Further social policies – focus on substance – ie: a tort law concerning reckless driving..
5) Shared interest w/other states in efficitn conflict resolution – focus on procedure
• Would other states have a legitimate beef with the state doing this?
• Where are the witnesses located?
Challenging Personal Jurisdiction
Full Faith and Credit Clause in Article IV, § 1 (US Constitution) – fed has to accept judgment in state court
28USC § 1738 – state must give same effect to a valid judgment that is has in the state that rendered the judgment.
***So state courts don’t have to give full faith & credit to Fed cts!! – the preclusion effect of that comes from common law (therefore,
parties can appeal and get review from higher cts)
Special Appearance
• Some states will allow you to make a special appearance to challenge the personal jurisdiction without subjecting yourself to personal
jurisdiction – you must be careful not to raise anything on the merits or you subject yourself to ct’s juris
Collateral Attack
• If an out of state defendant does not appear and suffers default, they are able to collaterally attack the judgment’s validity based on
jurisdiction when action on judgment made. (challenge in the enforcement action)
• Risky – once defendant suffers default, they only have ability to attack jurisdiction, and lose ability to challenge on the merits.
Note: You cant challenge PJ in enforcement action if you’ve already challenged in original action
In Federal Courts:
• Ability to challenge jurisdiction, (if loses) litigate merits, and preserve right to appeal both jurisdiction and merits
• Must raise 12(b)(2) at start– otherwise waived right to challenge
§ 1331 Federal Questions/Cases (SMJ)
Article 3 permits jurisdiction over any case where federal law is an “ingredient”. It establishes the judicial system and the power given to the SC and inferior
courts. USC 1331 is a statutory limit placed by Congress that limits the power of courts to hear federal cases. Under 1331, district courts have original
jurisdiction over civil actions arising from the Constitution, laws, treaties of the US.
Constitutional Power - Article III
Federal Statutory Power - 28USC1331
• Federally chartered (e.g., Bank of US) or incorporated (e.g., Red Cross) groups can have fed Q jurisdiction even re: state claims
• Holmes test “a suit arises under the law that creates the right of action”
• Fed law creates (1) right sued for (enough on its own) + (2) right to sue (not enough on its own)
Well-Pleaded Complaint Rule
The well-pleaded complaint rule applies to original, not appellate, jurisdiction. It is quite broad: under Osburn v Bank of the US, it only requires that one party
rely on federal law to establish the claim, defense, or side federal issue proving the main case. Holmes attempts to clarify the requirements of this concept by
stating that “a suit arises under the law that creates the right of action”. Grable & Sons v Darne further stipulates that state claims that turn on a substantial
question of federal law have SMJ. Louiseville & Nashville RR v Motley sets forth the rule of the modern “well-pleaded complaint rule”.
Louisville & Nashville RR. v. Motley - SC, 1908 | 349
The “well-pleaded complaint” rule
Facts: Ms released claims in exchange for lifetime RR passes; Δ reneges claiming that the free passes are a violation of recently enacted federal law. “Breach of K” claim
clearly state claim.
Rule: (1) Its not enough that a federal issue is raised in complaint, it must be necessary to the complaint.
(2) Claim must have federal issue – its not enough that D’s defense contains federal issue – creates “race to the courthouse”
Policy: Otherwise, people can just insert fed issues into complaint when not necessary. Docket control.
• Can be overinclusive in application b/c can bring a suit on federal claim, but may not end up litigating on that in the end.
Bell v Hood
You don’t need a valid claim for SMJ
Facts: Bell seeks to recover damages from FBI agents Hood for imprisonment/wrongful search and seizure in violation of Constitutional Rights under 4th & 5th Amend.
Issue: Is jurisdiction defeated by possibility that averment might fail to state a cause of action?
Holding: No. Failure to state claim = judgment on merits, not dismissal for want of jurisdiction. SMJ must be granted before judgment on merits can occur.
• Can only dismiss when “wholly insubstantial/frivolous”. As long as there’s possibility of good claim, you’ll survive 12b1. You don’t need valid claim for SMJ.
§ 1332 Diversity Jurisdiction
Diversity jurisdiction confers federal jurisdiction over parties that meet the requirements in 1332. The first requirement is that the amount in controversy be greater
than $75,000. This is a flexible requirement. P’s only need to show that this figure can be met to a reasonable possibility. Per St. Paul Mercury – this can only be
defeated if the D can show to a “legal certainty” that the P cannot recover this amount. For additional confirmation, courts can hold a mini-hearing to determine this.
Policy: Diversity jurisdiction is allowed b/c it avoids the prejudice of out-of-state parties being tried in state courts. Cons: s to this are that it consumes resources, fed
judges have no ‘special expertise’ with state law, it can create friction between state/federal courts, reduces the pressure to improve state jud. systems
Aggregation
Under the old rules (pre-1990), multiple plantiffs could not aggregate their claims unless it was a common/undivided interests (ie: co-owners). This was difficult to
meet. Snyder v Harris disallowed aggregation of claims in class actions where no single person met the minimum amount. Zahn v International Paper (a class action
suit) also dismissed litigants who’s separate/distinct claims didn’t satisfy the minimum. Under the modern rule, per Allapattah and Star-Kist, parties can aggregate
their claims as long as one party meets the minimum.
§ 1332b: Amount in controversy test > $75,000 “to a reasonable possibility”
• St. Paul Mercury – defeated only if shown to “legal certainty” that cant recover = good faith
a.
1 P can aggregate all claims brought in a single complaint (to single or multiple D’s).
b. Modern Rule : if one party meets minimum, parties can aggregate their claims
Aggregation was not allowed b/c parties under minimum amount. However, both cases were successfully joined because of supplemental jurisdiction.
Exxon Mobile v Allapattah – class action aggregation allowed b/c Rule 23 not exempt from §1367b – only one party met juris amt “contamination theory”
Star-Kist – 9-year-old sliced hand on tuna can – family tried to join on emotional distress/med – Rule 20
§ 1332a: Diversity - Litigation between
(a)(1) - Citizens of different states - - (must be UC citizen or legal resident alien)
(a)(2) - Citizens of a State & citizens/subjects of a foreign state.
(a)(3) - Citizens of different States and in which citizens/subjects of a foreign state are additional parties;
(a)(4) - Foreign state as a plaintiff. (not defendants)
• Citizenship is contemplated at commencement of litigation
• As long as all D’s and all P’s are diverse, its ok if D’s or P’s are from same state (Strawbridge)
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Citizens of a state = Domicile sec
People: Presence + Intent to stay indefinitely
Associations: any state where there are members, Trust: only the state of the trustee, Unemancipated minor has same domicile as parent (R of
conflict of laws §22),
Corporations:§1332 (c) (1) : citizen both principle place of business/place of incorporation
o
Principle place of business = place of operations, bulk of corporate activity test, nerve center, total activity test
o
Action against insured: citizen of state where citizen, and incorporated, and principal place of business
Baker v Keck - 1936
Motive doesn’t matter, domicile established by actions/surrounding circumstances
Facts: P (OK/IL) filed conspiracy suit against Progressive Mine Workers (OK). P has farm in IL but claims had moved to OK for domicile
Rule: Look to acts/circumstances and not to person’s declaration to determine domicile
Holding: Worked on community project, registered to vote, participated in local activities – enough to prove intention to reside in OK even
though there was evidence that he intended to return to IL. Look at acts not speculation!
Kelly v US Steel Corp
Bulk of activities test, (not where final decisions are made)
Facts: P = PA citizen. D (USX) incorporated in NJ w/ principal place in NY or PA. NY: BOD, Chairmen & Execs meets there, central place of
publications/decisions. PA: General operations: 32% of employees, 33% tangible property, 35% total productive capacity
Rule: Look to bulk of activities, day-to-day corporate activity
§ 1441, 1404, 1406 Removal & Transfer
§ 1441 REMOVAL
The 1789 Judiciary Act was the first time Congress introduced removal. Per 1441(f), a fed ct is not precluded from hearing a case even if the state ct that
transferred it lacked juris over it. Its an action intended to protect both parties – either can choose to remove to a fed ct in the same district where the state
action is pending (stays within state), as long as the dc has original jurisdiction under 1331 or 1332, and as long as D is not is in his home state (he doesn’t need to
be protected from prejudice). A 1331 claim can be removed regardless of the citizenship/residence of the parties. Under 1441(c), the entire claim is removed even
if joined w/ separate and independent claims, although the TC can exercise discretion and remind/remove the state question claims if they want. 1446 governs
the procedure for removal. Removal confers venue, regardless of whether or not venue would have been proper under 1391 if the case had been brought in
federal ct initially. Per the unanimity rule, all D’s must agree to remove.
Does new court have SMJ?
1331 – can remove regardless of citizenship
1332 – diversity req. must be met
Cant remove if D is in home state
Removal – confers venue (Holds even if that fed ct would not have been the proper venue under USC§1391 if case had been brought in fed ct initially
§1441(a): REMOVE to fed ct that
(1) W/ original jurisdiction (SMJ) under §1331 statute) and §1332 (diversity)
(2) To a fed ct in the district where state action is pending. (STAYS WITHIN STATE)
• Unanimity Rule: ALL D’s must agree to remove! If they disagree, they cant move.
Limits
§1441(b): D cant remove if he’s in his home state - doesn’t need to be protected from prejudice.
**Exception: Federal claims (1331) can be removed regardless of citizenship/residence of parties
§1441(c) – Entire claim is removed even if joined w/ separate/indep claims (otherwise non-removable).
Trial Court can exercise discretion and remand/remove state question claims if they want.
§1445 – Exceptions on Removal
§1446 – Procedure for Removal – (a) short/plain st, (b) Within 30 days - If claim didn’t assert fed q (not initially removable), notice of removal can still be filed
within 30 days o f amended pleading, motion or order that would make it removable
§ 1404 TRANSFER
Venue
TJ
convenience of parties & witnesses
Interests of justice
§1404(a) One DC in fed system to another in diff state or district. (CAN MOVE OUT OF STATE)
• Transferor law governs (old state) – Van Dusen v Barrack - prevents forum shopping.
- Ferens v John Deere – transferred from MI (SOL was okay), to new state, (SOL had run out). New state had to apply MI law so he’s ok
• Transfer for inconvenience to parties AND witnesses
• Must be where action could originally be heard – Hoffman v Blaski –
Hoffman v Blaski – D transferred to place where he had affirmatively moved to recently, but didn’t have proper venue @ time of suit. Cannot
transfer where couldn’t have originally brought suit. Otherwise, D would have more power and could move the action theoretically anywhere – could
lead to discrimination & harassment.
• If, after removal, still the wrong court = Piper Aircraft Co. v. Reyno (1981) forum non conveniens
• Courts use this as a way not to unduly prejudice parties whose claim may be barred by statute of limitations if dismissed for lack of venue (keep alive to
avoid SOL to run)
§1406A – Transfer from wrong ct (without territorial juris) (tho venue can be proper) –
• Transferee law governs
• Allows for cases field in wrong court to be transferred in interest of justice
• Initial court can transfer, even if lacks jurisdiction – Goldlawr v Heiman
Forum nonconveniens – harder to show bc dismisses the case entirely & parties must bring up themselves in another district
• State can transfer to other state. However, typically this is only used in fed ct where party wants to transfer out of country.
Venue
restricts where P can sue, assures suits are tried where there is sensible relationship
*Is D’s privilege and may be waived by failing to raise at response (12b3, 12gh)
§1391 (a) Venue when Juris founded on Diversity
1. Where any D “resides” if all in same state
2. Substantial part of events or omissions occurred (or property is located)
3. FALLBACK - Where any Δ is subject to P. jurisdiction if above places cannot be met
§ 1391 (b) Venue when Juris not founded on Diversity
1. Same as (a)
2. Same as (a)
3. FALLBACK - Where any Δ MAY be found (if above cannot be met)
§ 1391 (c) – Corporations “reside” in any judicial district where PJ can be established. If state has multiple districts, PJ is restricted to the
district of (1) PJ or (2) most contacts.
Focus on judicial districts/ NOT states
Reside only in your domicile OR,
Reside (for venue) in several districts if many residences maintained.
Forum selection clauses upheld generally (agreeing in advance on venue) (even if its an improper district under 1391)
See Carnival Cruise v. Shute (1991)
Exceptions to 1391 venue:
 Copyright
 Patent infringement 1400b
 Federal officials
 Interpleaders
 CL: local actions where land is located!
• If judge feels venue is inappropriate for justice, may transfer through 1404a even if parties like the venue
§1406 Removal for Improper Initial Venue
Erie
1789 Rules of Decision Act (RDA), stated that federal courts would apply the “laws of several states”
Rules Enabling Act of 1934: 28 USC § 2072
2072(b): “Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect
after such rules have taken effect”
Swift v. Tyson - SC, 1842 | s450
Use Statutory, not Common Law
Facts: Tyson purchased land using a bill of exchange. The bill of exchange was then given to Swift, Tyson refused to pay alleging that he had been fraudulently
induced into purchase. Swift sues Tyson.
Issue: Was exchange for endorsement valid consideration? Under NY law – no. Fed law – yes.
Holding: Ruled that Judiciary Act of 1789, §34: "the laws of the several states, except where the constitution, treaties or statutes of the United States shall
otherwise recognize or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." –
only applied to statutory, and not common law
• Asks judges to look @ common law to reach independent judgment as to proper rule.
• Supposedly, uniform common law rules would evolve as body of “general common law” on similar issues accumulated. This failed.
• In Black & White Taxicab – introduced discrimination in favor of out-of-stater by allowing them to pick fed law
Use state law on “substantive issues” where there’s no federal-making power & where states have
authority to create ite
Use Statutory + Common Law
Prevent forum shopping + inequitable administration of laws.
Facts: T gets hit by a train. Negligence case. T forum shopped to use fed law’s “ordinary negligence” rather than PA law’s “wanton negligence”
Holding: The damage of brushing aside the law of a state in conflict with their views is too great for federal courts to continue in the Swift v. Tyson model. Fed
courts should follow the state’s substantive law. Use PA law and threw out case.
• State law governs: standard of care to trespasser, enforceability of Ks, validity of wills, property transfers
• Swift overstepped constitutional boundaries b/c allowed federal courts to regulate matters Congress couldn’t regulate under Constitution – state judicial
decisions are binding
• Twin Aims: prevent forum shopping + prevent inequitable administration of laws
• Confirms existence of “judicial judge-made law”
• Problem b/c corporations could create diversity by incorporating in another state
Dissent: This is judicial activism, overruling the Swift regime
Erie RR v. Tompkins - SC, 1938 | 455
City Services v Dunlap - 1939
Expanded Erie to extend to “procedural issues”
Burden of proof on validity of title on the land – SC found that this burden of proof “relates to a substantive right”, even though it’s a
procedural issue.
Policy: Crap, do we abandon Federal Civil Rules of Procedure for State ones now?
Klaxon v Stentor- 1941
Fed cts should use State “body of conflict” laws to determine which state’s law to apply
Case brought in DE over breach of K, performance of K was in NY. “Body of conflict” law dictated NY law should apply.
Fed cts should resort to each state’s “body of conflict” laws – principles they look to when they need to choose which State law to use
for “substantive” issues.
Policy: Ensures “vertical uniformity” between state/fed cts within each state, but destroys “horizontal uniformity’ among fed cts in diff
states. P’s can choose btwn fed cts in diff states to get diff results.
Note: A state court may choose another state’s substantive law, but they will KEEP THEIR OWN PROCEDURAL LAWS. After a transfer,
the original cts “statute of limitations” will apply
Sibbach- 1942
“Substantial procedures” are not “substantive”, they’re still Procedural & Fed Laws Apply (FRCP)
Medical exam = substantive or procedural? Substantial + procedural.
(Fed. judicial practice) The outcome determinative test
(Statute of limits = substantive)
Facts: 1942 suit in equity for fraud in connection w/ transactions that took place in 1931. If state statute of limitations applied, case would be dismissed. But, if
federal statute of limitations applied, the case would continue.
Issue: Whether to apply the strict NY stds for statute of limitations or to apply the more flexible doctrine of laches of fed cts
Holding: Consequences that intimately affect recovery should follow State law.
Policy: The outcome in federal court should be substantially the same as it would be if tried in State court. Promotes consistency within State.
Dissent: “As form cannot always be separated from substance in a work of art, so adjective or remedial aspects cannot be parted entirely from substantive ones
in these borderland regions.”
Guaranty Trust Co. v. York - SC, 1945 | 466
Bernhardt v Polygraphic Co. of America - 1956
Used outcome determinative test to trump Fed Law
Issue: Whether federal court sitting in diversity should enforce the Federal Arbitration Act, passed by Congress, where it conflicts with a state
law that contradicts it.
Holding: Didn’t use fed law despite it being within Congressional power and obviously applicable. Instead, it used outcome determinative test
to determine that Erie concerned trumped federal law.
Narrowly interpreted fed statute to avoid Erie complications. Confirmed people’s “worst fears” about the uncertainty in the wake of Erie.
(Federal statutes and FRCP were in risk because of Erie jurisprudence under Guaranty Trust)
(Fed statute) Balancing test (Weight Fed > State interest) - principle still used
--Affirmed that Fed cts follow State law for “substantive rights” if they’re outcome-determinative
Facts: State law would allow judge to det. Employee’s status in tort . 7th Amendment - Federal law which would permit the jury to det. His status.
Holding: Federal interest in preserving the character and function of juries in federal courts outweigh the concern that applying federal law would lead to
different outcome than if state law applied.
Policy: Power momentary swings back to Fed a little
Byrd v. Blue Ridge Elec. Coop. - SC, 1958-473
PART I: Goal of Erie is to prevent forum shopping/inequitable dist.
PART II: FRCP win unless they “abridge or modify substantive right” (REA)
Facts: Mass. Required in-hand service, but P served process by leaving sit at home with person of suitable age and discretion as per the federal rule 4(d)(1)
Holding: Rule 4(d)(1) doesn’t exceed the REA/Constitution, it’s the one that should be followed. Outcome determination test is to discourage forum shopping.
Rules: When Federal trumps State Law
Article III, § 1: congress has the power to establish lower federal courts
Article I, § 8: and make law “necessary and proper” for exercising that power.
NOTE: also there is statutory power since Congress reviews FRCP before taking effect, See 28 USC § 2074
Hanna v. Plumer – SC, 1965 | 479
(1)
(2)
Federal Constitutional Provisions– Constitution governs via “Supremacy Clause” – (ie: jury verdict Hanna)
-A fortiodi – if a federal constitutional provision applies, it will control despite a contrary state statute/practice US Const Article VI §2
(what kind of test does this need? Why do we end up applying Hannah II to this p.210 glannon?)
Federal Statute –
Is there a conflict btwn State/Fed? - If not, use Hanna I test
Is Fed statute “arguably procedural” - if so, follow Fed statute b/c Congress has power to enact procedural governing statutes
(3)
You could try to avoid trouble by arguing that there is no direct conflict (ie: Walker/Gasperini)
Ie: governing burden of proof, jury instruction, etc.
Federal Rules (FRCP) –
Does Rule “really regulates procedure” (valid under REA) - it rarely wont
(4)
Does Rule “abridge , enlarge or modify” a substantive right (REA§2) Substantive Law = “judicial process for enforcing rights and duties”
- Is is “bound up” with the substantive claim itself?
ie: giving longer life to claim –Walker, type/measure of damages Erie, statute of limitations -York)
- Pt of statute to govern a non-procedural matter? Or aimed at augmenting efficiency of litigation process?
Ie: primary rights outside the ctroom, incidentally affecting them is sometimes ok
- Does it favor one party over another?
- Does it trench on the policy underlying the state’s approach?
Federal Judicial Practice – “modified outcome-determinative test” –
Would applying the judge-made law lead to major forum shopping?
Inequitable administration of the law? - if so, use State law
Ie: inequitable = when Fed law instead of state would open up significant diff. in litigation opportunity, viewed prospectively
Szantay v Beech Aircraft Corp
Balancing all three approaches (York, Hanna, Byrd)
Representatives of Szantay (decedent in Illinois) brought suit against Beech (Delaware/Kansas) and Dixie (South Carolina) in federal district court in
SC. SC “door-closing” law that prevented a foreign party from suing a foreign corporation on a foreign cause of action. (crash in TN, service in SC)
Outcome Determination (York) – Does refusing to apply SC statute materially affect outcome? YES, you can sue in Fed but not State ct
Modified Outcome Determination – (Hanna) – Would this lead to forum shopping/inequitable distribution of laws? Not enough to outweigh
federal concerns
Do federal interests outweigh state interests (Byrd) – Fed: avoid discrimination, convenient forum, State: weak – Fed wins
**We end up on the Federal Side
Day & Zimmerman v Challoner
Repudiation of balancing approach for Klaxon’s “choice of law”
s injured by exploding shell while fighting in Cambodia sued maker of the shell in Texas federal court. Texas conflict of laws rule applied a “placeof-the-injury” rule, so technically should apply Cambodian law on proof of negligence.
Holding: Adhere to Klaxon’s “conflict of laws” determination: “A federal court in a diversity case is not free to engraft onto those state rules
exceptions or modifications which may commend the federal court, but which have not commended themselves to the State in which the federal
court sits.” .
Outcome determinative test (Hanna Part 1)  Use state law
Inequitable to allow suit to go forward in fed ct that would be barred in State
The car accident happens, filing is made within the state statute of limitations, but D not served within the statute of limitations.
Ragan v Merchants Transfer
Issue: Kansas has a 2 year statute of limitations, but does the clock start when the lawsuit is filed, or when the defendant is served?
Rules: Rule 3: action is commenced with filing  lawsuit is timely. Kansas statute: action is commenced at the date of service  lawsuit not timely
Holding: This is outcome determinative so according to York, we use State Ct.
Walker v Armco Steel Corp
(Same)(No conflict between state & fed Rule 3) – Hanna Part I analysis
Facts of case were exact replica of those raised in Ragan. (Complaint filed against  within two year statute of limitations, but service occurs after 2year period)
Holding: Rule 3, which states when a civil action is commenced, does not apply to the issue of tolling the statute of limitations. There is no conflict
btwn state and federal rules, each govern their own sphere.
Is there a Federal Rule? Rule 3 doesn’t work b/c it states when civil action is commenced, not when statute of limitation tolls. (This is interpreted
narrowly b/c otherwise it would infringe on substantive right of D to have peace after certain time)
Then apply judge-made law (Hanna Part II) – Yes, outcome determinative. Inequitable to use fed over state – so must use state
“There is simply no reason why, in the absence of a controlling federal rule, an action based on state law would concededly be barred in the state
courts by the state statute of limitations should proceed through litigation to judgment in fed court solely bc of the fortuity that there is a diversity
of citizenship btwn the litigants”
Gasperini v. Center for Humanities - SC, 1996 | 491
The Hybrid or Compromise Approach to satisfy state & federal interests
Facts: Diversity suit for damages for photographer’s lost slides: jury awards $450K ($1500 per lost slide); District Court denies Rule 59 motion for amended judgment.
• Federal Standard: “shocks the conscience”  more deferential ------review of “abuse of discretion” (1 shot to overrule by showing abuse)
• New York Standard: “deviates materially”  stricter less deferential -----“
de-novo review” (2 shots to overrule - @ TC and AC level)
Therefore, state court is highly preferable!
Issue: Should state or fed law apply to the trial & appellate procedures?
Is there a federal rule on point? SC says Rule 59 does not apply (no conflict btwn state/fed rule 59). (Therefore, skip Part I of Hanna analysis)
TC Analysis: How about Judge-Made law?
1. Outcome Determinative: Yes (award may be overruled depending on standard)
2. Forum Shopping: Yes (more likely to file in federal to avoid excessive reward being overruled)
3. Inequitable administration of the law: Yes
***Therefore, must apply state law in federal diversity case at trial level
AC Analysis: 7th Amendment – higher review of “abuse of discretion” to respect jury decisions (constitutional right)
Holding: Combine the two: use state law but also apply higher federal “abuse of discretion” standard of review to respect state & fed interests.
Policy: Rescues Federal Rules
*Approved Byrd’s emphasis on importance of federal interests as a factor in making an Erie choice
Federal Court applying state statutes and law in Diversity jurisdiction § 1332
Federal Courts apply state law by:
 Applying state statutes
 Following state court interpretation of statutes
 Applying state laws as ANNOUNCED or WOULD BE announced
by the state’s highest court.
 FORK: what if state’s highest court hasn’t decided on the issue?
Court with Claim
State trial court, appellate
court
State Sup Ct
Federal District Court
Federal AC
Applying State Law
• Mandatory authority= State’s highest court
• May look at federal courts application as PERSUASIVE authority if state appellate or supreme court has
not made a decision.
Stare decisis, unless it decides to overturn previous decision
• Mandatory authority= State’s highest court
• Unless, no decision by them, then may look at what appellate courts have said, or GUESS what state’s
highest court would do.
• Mandatory authority= State’s highest court
• Persuasive Auth = other federal courts guessing what state’s highest court would do.
• Mandatory authority = only itself.
• Persuasive authority = state’s highest court.
**if a federal court applies the law, guesses what state court would do, but a year later, state supreme court goes the other way?
Supreme Ct
“Certification” – fed courts can certify an issue with state supreme ct. (state courts discretion to review issue or not) (Uniform Certification of Questions of Law
Act)
• increased expense, burden on state ct, threat to judicial function of fed cts in diversity (diminished sense of responsibility)

Can the court reopen if parties request Rule 60 (b)(6)?
TENSION:
o
NO—finality is important, it’s not fair to have diversity judgments never be final
o
YES—important not to have weird judgments out there/ it’s not fair
Joinder
Rule 20 – (optional) Can join in one action as (1) Plaintiffs and as (2) Defendants: multiple claims if arise out of
same transaction/occurrence or series of trans/occur. + common question of law or fact
• Claims: Jointly, severally, or in the alternative
 More efficient
 Consistent judgments
Joinder is NOT required, but permitted.
b/c π has right NOT to sue if they don’t want to! For SMJ and P. Jurisdiction
issues/concerns
Rule 13 (a): compulsory counterclaim, - juris given by supp 1367



If it occurs out of the same transaction/occurrence – use it or lose it!
Perhaps, brings out fair issues all at once, prevents Δ from waiting, taking it
somewhere else and suing π.
NOTE: SMJ and P jurisdiction in this forum is NOT an issue, b/c already has PJ over π simply by virtue of them filing claim there.
(b): permissive counterclaim (unrelated claim), efficiency says, settle all claims w/o separate suit. – still need SMJ
(g): cross claim against co- Δ . If occurs out of same transaction/occurrence (optional) juris given by supp 1367
Responding to counterclaim (within 20 days) – Rule 12
Williams v. Robinson (D.C. 1940) - Not same transaction
Facts: Husband sued his wife & X in divorce proceeding for adultery. X brings separate suit against husband for libel based on the charges for adultery. Husband
moves to dismiss for failure to state claim upon which relief can be granted
Holding: Motion dismissed – to hold it as the same transaction or occurrence would admit there was an adulterous affair, and fails “same evidence test.”
Rule 18(a): a party can join all claims against another ONLY IF (one) proper claim has already been asserted. (optional)
>>>> still need SMJ
Rule 14 – D brings in 3rd Party optional
14(a): for Δ to implead new parties against whom she has claims related
to main claim; “all or part”
 must follow R8-11
Impleaded 3P Δ is allowed to assert defenses against both π.
14(a)(2)(A): assert defense against 3P π
14(a)(2)(C): assert defense against original π.
(D): assert claim against original Π (same subj matter)
(3) Π can assert against 3P Δ (if same subject matter)
14 (a) (1) timing: sue 3P Δ within 10 days of answering
 w/o Ct Permission, but generally Cts still have discretion
Make sure SMJ is met in all cases
Factors Courts Consider:
In favor of impleader
Efficiency of hearing related claims
Avoid repeated suits
Avoid inconsistent judgments
Denial of Impleader
Undue delay in seeking
Complication of main issues
Potential prejudice to π from
impleading sympathetic 3P.
Jurisdiction Issues:
 3P doesn’t count for venue
 1367 a supplemental jurisdiction
 3P Δ doesn’t have to be diverse from anyone.
Essentials and Interlopers: Rules 19 and Rule 24
Rule 19(a) Must join if feasible when:
Should party be joined?
19(a)(1)(A): when ct cannot accord complete relief amongst existing parties UNLESS absentee also brought in,
Eg: joint owners, and π only sues 1
Eg: sue landlord who is leasing from someone else.
Is joinder feasible?
-Do they object to venue (19a3) - waivable
Is the party “indispensible?
- Is there PJ/Ter Juris? – waivable
19(a)(1)(B)(i): Or if proceeding w/o person impairs their ability to protect their interest.
- Will it deprive ct of SMJ? – non-waivable
19(a)(1)(B)ii): Or if NOT joining exposes one of the original parties to multiple obligations
Shields v. Barrow (U.S. 1855) – old school interpretation of R19. Seller (CA) sues against two (MS) of six endorsers of a bad note. Other four endorsers
+ buyer left out of the action bc they’re from CA & would destroy diversity. In 1855, the court threw the case out because the missing parties could
not be joined. Note that R19 has changed (due to 1966 amendments) since its application in Shields.
19(a): parties should be joined because judgment in federal court as present endorsers may hold them severally liable or it might prejudice
Rule 19(b): If Person should be joined under 19(a) but cannot? 3 Options:
TODAY: Courts Consider the factors
a) Would judgment in absence prejudicial to parties joined & not?
b) Extent protection can be used to avoid prejudice
c) Adequate w/o party?
d) π gets adequate remedy (in another ct) if dismissed?
Yoonjee’s Joinder Chart
Stage in Trial
Parties
Claims
Designing that lawsuit
20(a) multiple Π suing together
20 (b) multiple Δs to a suit
Can also use rule 20 when Δ is 13 a /13b counterclaiming…or cross
claim.
18(a)--With one valid claim, can bring all kinds of claims (for
efficiency)
Defensive moves after
suit is filed
14 (a)-- D1 can IMPLEAD D2 who for liabilities to Δ 1… (not original P)
Completely voluntary.
19a--must be joined if feasible
19b--what to do if not feasible.
Is this a move by the Δ? Usually used for the 19b purpose, the get the
claim dismissed.
13(a) compulsory counter claims
13(b) permissive counter claims
Parties that want IN
(within 10 days after
suit is filed)
Once 13 counterclaims attached, 18a, bring all your claims.
14 (a)2(A)--D2 can counterclaim against D1
(B) defend against P, (C) claim against P, (4) vice versa
24 (a)1-- right to join if there is statute (US govt)
24 (a)2--right to join IF 3 conditions MET
24b1B -- if 24a doesn't work.
Rule 24 Intervention
24(a)(1) MUST grant intervention if there’s a statute authorizing: Eg: for govt (uS AG,
trademark office, etc)
OR (2) (3 conditions)
(a) interest relating to the property/transaction subject of action
(b) and interest may be impaired if not allowed in case AND
(c) absentee’s interest not already adequately represented by parties to the action
24(b)(1)(B): MAY grant permissive intervention when
 Ct has ultimate control
o
When:
same question of law,
o
Limitations:
Timely under 24b3? (will it delay or prejudice?)
o
o
o
shared interest,
more efficient
Given conditional right by fed statute
o
o
Require reopening of discovery?
Did they attempt intervention sooner?
Rule 22 Interpleader– Allows P’s to interplead D’s whos claims may expose
P to double/multiple liability, even if claims are independent, and even if P denies liability. –
Allows D’s exposed to similar liabilities to interplead through cross/counter-claims
Rule interpleader
-Limited by Rule 4 effective service requirements and by general venue requirements in 28
USC §1391.
-Complete diversity req. (both sides of v)
-Normal rules of PJ
-Minimum: $75,000.
Statutory interpleader
Limited by 28 USC §1397 venue requirements, but it has nationwide service of process under Rule 4(k)(1)(C)
Personal jurisdiction is much less restrictive than the normal requirements.
Minimal diversity between any two claimants (the insurance company, a.k.a. the stakeholder, is not even considered).
Minimum claim requirement is $500.
Only available to diversity of citizenship claims
Statutory interpleader is intended to allow people to be brought into federal court, so service of process is less limited.
Supplemental Jurisdiction §1367
Pendant jurisdiction: Federal claim + related state claim

See united mine workers v. Gibbs, federal LMPA + state contract interference.
(1) Pendant Juris = Common nucleus of operative fact
United Mine Workers v. Gibbs - SC, 1966 | 376
(2) Ct has power to reject this
Facts: G loses job/benefits, sues for violations of § 303 of the Labor Management Relations Act of 1947 (fed SMJ) + TN state common law.
Issue: Whether the court properly entertained jurisdiction of the claim based on TN law.
Holding/Rule: (1) SMJ when state & fed claims “arose from the same nucleus of operative fact.”
(2) SMJ up to Ct’s discretion. (consider judicial economy, convenience and fairness to litigants- state issue should not be predominating claim).
Aldinger
Gibbs met (Constitutional) BUT no Statutory grant of juris. (OVERRULED BY §1367)
Facts: Gibbs test met but State claim inconsistent w/ apparent intent of Congress to bar Fed. Civil right claims under-§1983
Rule: (overruled by supp juris) In addition to Article III power (under Gibbs), the court must also have statutory power to hear the case


Do we have power to hear claim?
o
“common nucleus of operative facts” test
o
Federal courts have power to hear state claim, but not required. Ct can sever.
Does it make sense to hear claim together? YES→ federal court | NO→ dismiss, goes to state
Factors:
o
State law claim predominates?
o
Sensitive issues of state law?
o
Confuse jury?
o
Federal issues resolved early?
Ancilliary jurisdiction: claims by Δ over other 3P



Close connection between original and added state claim → SINGLE court case
Available for:
o
14(a)(1): D interpleads 3pD
o
13(g): crossclaim against co-party
o
24(a): intervenor
Deny for 13(b) permissive counterclaims. (not same subj matter)
Owen Equip v Kroger
Gibbs met BUT no Statutory grant of juris (§1332 diversity conflict). (OVERRULED BY §1367)
Facts: Went against diversity §1332 to allow interpleading of nondiverse 3rd party D (14a)
Rule: (overruled by supp juris) In addition to Article III power (under Gibbs), the court must also have statutory power to hear the case
Finley v. US
§ 1367 Supplemental jurisdiction



made a statute in 1990 – added “statutory grant of jurisdiction” – in response to Kroger/aldinger
§ 1367 (a) Very broad, same as Gibbs, BUT
§ 1367 (b) Limits on claims brought by P under 14, 19, 20, 24 (preserving limits from Kroger) 3 part analysis
Is the constitutional power Art III § 2 to hear supplemental claim?
 A proper claim exists within federal court jurisdiction? (SMJ/diversity)
 Related claim arises from same operative facts? Gibbs
Statutory grant of jurisdiction over supplemental claim? [newly provided by 1367(a), limited by (b) in diversity casesP claims]
Use discretionary factors to decide whether to do so.
NOTE:
If there’s no supplemental juris, always ask: Is there Independent SMJ?? (diversity/$)
Ch 17 Jurisdiction vs. Joinder - checking power (rules) + jurisdiction (§1331,1332)
*If there is a separate basis for SMJ (via federal law) for some parties, their citizenship is exempt in the determination of diversity for the others.
What rule that authorizes? Rule 13, 14, 18, 19, 20, 22, 24 (some req. same transaction/facts or law)
Is there Independent SMJ? (Diversity + Amount)
Is there Supplemental Jurisdiction?
Same nucleus of facts? Gibbs
Is it a diversity case? - Kroger nod
1. Did P’S CLAIM destroy diversity? §1367b (14-3rdpD, 19-req joinder, 20-permissive joinder, 24-intervenor)
2. (OR) proposed P’s under 19 (req) or 24 (intervenor)
Rule 23 - Class Actions & Collusive Agreements
• a1 - So numerous, joinder infeasible
b1 – possibility of inconsistent judgments, pool of funds insufficient (no notice req)
• a2 - Common question of law or fact
b2 – D made characteristics of class a basis for own conduct (no notice req)
• a3 - Typicality
b3 – class action superior to individual actions (notice req for all potential Ps)
• a4 – Adequacy of representations
c – members can opt out of b3
--d (power of representative), e (settlement) – cant settle w/out ct approval
Derivative actions by shareholders – Rule 23.1
• When one or several shareholders sue on behalf of all the other holders to get company to do something/stop doing something
• Action takes on characteristics of a class action.
Actions relating to unincorporated associations – Rule 23.2
• Class action can be used against unincorporated associations by naming a few members of the association as representatives.
• By naming a few members in class action, lawyers satisfy diversity easily and limit the venue and service requirements
Collusive Actions
Kramer v Caribbean Mills 1969 – D entered agreement to purchase stock in Panama Finance Co. Paid down, but no installments. Assigned interest to Kramer (P)
for $1, who promised to pay Panama 95% recovery. Collusive Agreements cannot be used to create diversity of citizenship – §1359 Collusive Agreements
Rose v Giamatti – Rose sued D (commissioner) in OH state court. D removed them to fed. Rose tried to defeat diversity by joining 2 unincorporated assoc (major
league baseball & Cincinnati reds) to destroy diversity. Nominal/formal parties will be ignored – suit will stay in fed ct– uses case law to establish (NYTimes)
Service of Process
Service of process


= delivery to a party or witness court orders.
= service of initial notice to Δ of filing of lawsuit
Rule 4:Service of Process
Rule 4(c )(1): what docs (summons + complaint)
Rule 4(a) contents of summons
 4 (e) and 4(d): how papers served
o
4(e): serve individuals: (1) follow state law or (2) Personal delivery, leave copies at individuals’ dwelling or usual place of abode w/ person of
suitable age/discretion who resides there, deliver to agent appt by D to receive
o
4(c) (2): after 1980: anyone over 18 and NOT a party can deliver, usually π’s lawyer hires someone
o
4(e)(1) for ppl outside of state—follow state laws where Δ is.
 4(h): serving corporations:
o
4(h)(1) if corporation is in US→ serving officers, manager, or general agent is OK.
o
4(h)(2) if corporation is outside of the US
 4(m): must serve D within 120 days of complaint filing date
 4(c )(2): who must serve

4(d) waive requirement of service (get deadline extended to 60 days from 20 days)
o
4(d) waiving is sort of mandatory since
 4(d)(2)B: impose cost of service to Δ if w/o good cause
 4(d)(3) gives 60 days to respond if they waive. Cf to 20 days.
Service grants personal jurisdiction when
4k1a - State court has PJ (by long-arm), then Federal (in that state) automatically does too + (own test) 14th Due process
4k1b - Impleaded parties (R14,19) served within judicial district <100 mi away
4k1c - Authorized by federal statute
For Federal claims (under Fed law)
4k2a – D not subject to any other state cts jurisdiction +
(rule requires this, not constitution) Constitutional/laws (5th Amendment, req min contacts w/US as a whole)
4(n) - Ct can assert juris over property if authorized by fed statute
Defensive move:
12(b) (5): attacks adequacy of method used in service to give Δ notice.
*State statute for service complied + notice not received = Constitutional
*State statute not complied with + notice received = Constitutional
Procedural Due Process – gives person opportunity to be heard b4 gov unduly impairs his property/interest (14 th)
• State law determines in state ct, Rule 4 determines in Fed Ct
(1) Informs D that action has been filed and failure to respond = default
(2) Formally subjects D to authority of gov.
Mullane v. Central Hanover Bank U.S. 1950
Reasonably ascertainable information
Facts: Beneficiaries of NY trusts given notice through publication without names, whereas at time trust set up bank sent mail notice.
Rule: Notice by publication constitutional if ordinary due diligence would not find location of beneficiary, even if never received.
HOWEVER, when whereabouts are known/easily known, notice by publication unconstitutional.
Holding: In-hand service not required (too many people), but notice by mail req b/c they knew their addresses.
Emphasizes balance between cost and practicality: Court acknowledges that not everyone will get mail notice, but because there is unity of interests
individuals not notified will be protected by those who did  relevant to class actions.
Mennonite Board of Missions v Adams
Mail notice req. @ minimum to last known address
Facts: Proceedings to sell real property after owner’s nonpayment of taxes – notice was posted on county courthouse and published multiple times.
Certified mail was sent. Mortgagee learned of proceedings after title had passed during quiet sale
Rule: (1) Mortgagee has substantial property interest that’s significantly affected in tax sale (Right to be heard)
(2) Constructive notice must be given to last known available address – MAIL NOTICE IS REQUIRED at the minimum
Holding: Publication in local newspaper inadequate to inform landowner who’s name was known to the city and on official records.
Jones v Flowers
Not adequate if KNOWS didn’t reach party
Facts: Owner of property fell behind in tax payments. Tax authorities sold in attack sale. Jones didn’t get notice until after 30-day post-sale
redemption pd ran out. Tax authority had gotten notice but Jones didn’t receive. Received letter back labeled “unclaimed”
Holding: Not proper b/c tax commission KNEW it didn’t reach Jones.
Lehr v Robertson
Adequate b/c didn’t know address - Father’s responsibility to put name in registrar
Facts: Father had not est. relationship w/child but wanted to be notified of his adoption.
Rule: Not putting his name on the putitive father registry – so they didn’t have last known address – was his own fault.
Prejudgment, Garnishment, Attachment, Notice
Matthews v Eldridge
3-FACTOR BALANCING TEST
Facts: 3-factor balancing test for garnishment
(1) Interest of individual in keeping property.
-If its very serious, you’ll be more inclined to provides additional safeguards (pre-judgment, etc)
Ie: pre-judgment if not sensible to wait til the end, interlocutory judgment if other person may use/move resources
(2) Risk of erroneous deprivation (procedures/probable value) vs value of additional procedural safeguards
(3) Cost/admin burden of additional safeguards + Government interest in efficient adjudication
Ex-parte = seizing w/out knowledge of party – they’re not notified
• Benefit – they wnt take property and run, so you might want to attach first
• allows post-seizure opportunity to challenge (see if it comported with due process)
• Its hard to get ct to allow you to do this
• Affadavit can help assure judge claim isn’t frivolous (factual allegations/probable cause, etc)
• Bond can reduce risk of error
Dobkin v
Chapman
(CONSTITUTIONAL) 3 auto accidents- (1) ordinary mail from which registered mail had been returned unclaimed, (2)
publication in newspaper after registered mail laws returned unclaimed, (3) delivery of summons/complaint to insurance
carrier + ordinary mail to D’s last known address. – ok b/c it was the conduct of the D’s in removing without informing people
Sniadach
Fuentes
Mitchell v Grant
North Georgia
Finishing Inc
of whereabouts that caused failed service.
Wages are type of property & garnishment prior to hearing violates due process
(UNCONSTITUTIONAL) Statute allowing seizure by posting bond, other party could regain if posted bonds for double value
within 3 days –Not enough proof before seizing, or notice after.
CONSTITUTIONAL) Statute allowed seizing, gave other party right to immediately reclaim, whereupon P must provide proof of
right to property. Constitutional b/c put burden of proof on party seizing and gave immediate venue for relief
(UNCONSTITUTIONAL) statute allowed seizing w/ affidavit that stated amt claimed + reason. – that’s still mere conclusory
allegations, not real proof. Affidavit must show probable cause.
Stating the Claim: Rule 8(a), (c), (e), (f), 9(b), 11 -  asserts “if” clause,  asserts “unless” clause
Specificity - Rule 8
“short & plain” (cause of action) (8a) - (1) grounds for jurisdiction, (2) entitlement to relief, (3) type of relief sought
Don’t need to plead evidence, general theory of negligence is enough
Sierocinki: P sues manufacturer for exploding dynamite cap. D motions for more def. statement (12e), dismissal for failure to state claim (12b6).
Ct: “P need not plead ev., can be found through Rule 33 interrogatories, general theory of negl. = ok
Policy: wastes court’s time to determine if they’re facts, conclusions or evidence. Case decided on merits, not pleading, w/increased anonymity,
unjust to require facts
Plausibility Test
Twombly 2007:  alleged Bell Atlantic “engaged in parallel conduct”; illegal conspiracy in restraint of trade. Established plausibility test: higher
standard to overcome 12b6 (failure to state a claim). Overruled Conley’s “possible” standard (plain and simple).
Policy: Changed rules, higher pleading reqs give courts more sway to dismiss a pleading before it is heard
1. legal sufficiency – est. legal theories to weight facts against
2. factual detail – particular mention of factual circumstances of each element, enough to permit judge to find that liability is
reasonably plausible
• Judge wont assume conclusions are correct
Factually allegations assumed as true:
Pardus (SC 2007): Facts: Π brought civil rights claim against prison officials from wrongful termination of medical treatment (hep C) that
“endangered his life”. Holding: Π pleaded element in “conclusory fashion”, departure from Fed Rules of Civil Procedure b/c “judge must accept
as true all factual allegations in the complaint”  no ref to plausibility test
Factual allegations dismissed:
- Ashcroft v Iqbal (SC 2009): Facts: Π Pakistani Muslim sues Attorney General & FBI director on allegations of harsh conditions of confinement on
account of race, religion, or national origin. Conclusory allegations are disregarded bc they didn’t show anything: that def had been treated such
because of discrimination. You could say they were purposefully discriminating in the wake of 9-11. Determining plausibility requires ct to draw on
experience/common sense: does nonconclusory factual allegations allow the ct to draw the reasonable inference that Δ is liable for alleged conduct?
Exception: alleging fraud/mistake (9b): state with particularity
8c: Affirmative Defenses – must be raised here if you want them in the trial
8d: Claim in the alternative: allows P to make multiple inconsistent claims– assists P who is unsure of which claims to apply to
Form 11: Date/Place, $med. expenses, $judgment
Sanctions – Rule 11
Lawyers must make reasonable inquiry into if there are good grounds to support a claim
- 1983: started req. attny to certify legal claimhuge increase in sanction claims
- 1993 amendments
Sanctions only apply when lawyers continue to assert claims that he or she knows to be groundless – P must acknowledge assertions he cant prove at
that point but that he or she believes will eventually be proven.
Allows reasonable opportunity to respond to notice, Δ can corrects within 21 days
Firms should be held jointly responsible for violations committed by partners – with some exceptions
Not a fee-shifting rule – 11(c)(2) states sanctions should limited to what is sufficient to deter conduct by other similarly situated.
Murphy v. Cuomo (N.Y. 1996) – D manufactured stun guns, granted summary judgment on claim of conspiracy with NYPD to spray innocent people.
Even after 20 months, could produce no evidence. Rule 11 sanctions: imposed.
• Rule 11c2 – motion cannot be filed if challenged claim is corrected within 21 days after service
Defenses/ Motion to Dismiss
Once sued, Δ’s Options:
12(a) Δ answers (OR)
12(b) pre-answer motion to dismiss
*Don’t need to answer the rest of complaint until after motion is decided
Were defenses 12b(2-5) available in pre-answer motion? If so, must be raised with all. If not, can raise later w/out being waived.
Denial – Rule 8(b)
Affirmative defense – Rule 8(c)
Enumerated defenses – Rule 12(b) – must be consolidated into pre-answer motion
1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction -- (2-5 waivable)
3. Improper venue
4. Insufficiency of process
5. Insufficiency of service of process
6. Failure to state a claim upon which relief can be granted (if all facts admitted, there must still be no basis for relief) – (6-7) can be in trail, post-answer
7. Failure to join a party
12e – more definite statement, 12f – strike – should be in pre-answer motion but can be heard @ ct’s discretion
Coleman v. Frierson (Ill. 1985) - , special investigator, sued under civil rights statute for lost wages and injuries after wrongful termination.  = willfully
delinquent in discovery and judge held them liable by default. Jury found damages for .  filed motion to set aside verdict based on res judicata, 12(b)(6),
etc. Holding: Motion denied. 12(b)(6) cannot be raised on appeal after judgment as been rendered “Doing justice between litigants, after all, hinges as much on
respect for the procedural rules governing the progress of the lawsuit as on affording parties liberal scope in making their arguments on the merits.”
Amendments to Pleadings
Rule 15 –
a(1)(ab) - 1st time as matter of right – before any responsive pleading or within 20 days of pleading (response within 10 days)
a(2) - Other times w/ written consent @ ct’s discretion “should freely give when justice so allows” (party consent works too)
b(2) – Issues tried by consent
(c) – Relation back – (when out of same conduct, transaction or occurrence – Gibbs test)
Does state statute allow relation back? (c1a)
• or same conduct, mistaken party etc – check c for examples.
Blair v. Durham (6th Cir. 1943) – Amendment relates back to same transaction
Facts: Contractor sued for negligence of sub-contractor employees; SOL runs; amended complaint to include construction of scaffolding, for which
contractor is responsible, unlike the negligence of sub-contracted workers.
- Will there be prejudice?
Beeck v Aquaslide – 1977 – P injured on waterslide. D admitted to manufacturing, then found out they didn’t and amended. Holding:
allowed b/c error in good faith & due diligence. Prejudice no sufficient.
-Is party acting in bad faith? Did they have opportunities to amend before?
Pleadings
It’s where the parties state their claims, their defenses, what
they’re going to argue!
Motions
When parties ask the court to DO something
Eg:
 12(b)(6) demurrer—moving to dismiss the claim for failure
to state a claim that entitles π to relief
Discovery
RULE 6b – extension of time – ct may grant if request is made b4
original time expires
#1 Rule 26(a) PRETRIAL automatic disclosure – name/addresses,
within 14 days after 26f conference
(a)(2-3) disclosure of expert testimony – 90 days before trial
(opinions/qualifications – can be deposed l8r)
Fed Rules of Evidence 702: expert witness
A person whose testimony will assist trier of fact in understanding
b/c of special knowledge, skill, experience, training, or edu.
(3) Pretrial disclosures – 30 days b4 trial, objections in 14 days
#2 RULE 26(f) CONFERENCE
#3 Then, discovery can proceed –
Rule 26 (b)(1) very broad SCOPE but also limited to “any nonprivileged matter relevant to any party’s claim or defense”,
 Used to be even broader before 2000. See Oppenheimer Fund, Inc. v. Sanders (US 1978) (committee recommended reining in at the outer bounds of
relevance)
 Purpose of broadness: designed to help define and clarify the issues
 Info doesn’t need to be admissible at trial of discovery appears it will reasonably lead to discovery of admissible evidence
 Privileged info:
o
Attorney-client (FRE 501)(rationale: for effective representation need full and frank communication.
 Notion of client expanded to include any employee of a corporation. See Upjohn v. US, US 1981)
o
Priest and penitent
o
Doctor-patient
o
Husband wife
o
Psychotherapist-patient
o
Work products (26b3)= docs/tangible things developed in anticipation of litigation & legal theories/litigation strategies 26b3b
 Hickman v Taylor – tugboat sank and didn’t req. release of statements of crewmembers after accident b/c no under hardship
since witnesses readily available & other party had access to them
o
Nontestifying experts – 26b4b (only in exceptional circumstances)
o
Electronically produced docs that impose undue burden – 26b2b
Exception: Rule 26 (b)(3) – WORK PRODUCT BY REQUEST
“documents and tangible things…prepared in anticipation of litigation or for trial by or for another party or its representative” only obtained in discovery if
requesting party can
demonstrate substantial need for materials and
cannot obtain equivalent information through other means w/o undue hardship
 Note: courts may choose to protect info, and when they do, don’t need to disclose.
***Rule 26(b)(3)(B). Also, even if showing is made, “mental impression, conclusions, opinions, or legal theories of a party’s attorney or other rep”
shall be protected.
1. Docs prepared for litigation are barred
2. Information that cannot be obtained may be ordered to be produced by court
3. Opinion work products are protected
***Rule 26(b)(4)(B) discovery of non-testifying experts only in “exceptional circs” – (a) may be deposed
Because it would be like prying into the strategy of the opposing party. They’re fully involved in the prep of a case for trial, procedure,
theories of recovery, preparing witnesses, etc. Would delve deeply into opponent’s trial strategy.
**26(b)(5) – Privileged info must be described “describe nature of docs, communications or things not produced or disclosed in a matter
that, without revealing info privileged or protected, will enable other parties to assess the applicability of the privilege or protection”
Rule 26(c)(1): protective orders from discovery requests
After receiving a discovery request, parties can seek a “protective order” from annoyance, embarrassment, oppression, or undue burden or
expense.
***Even if a motion to dismiss is pending, parties are still entitled to discovery from each other – however, if they really don’t want that they
can ask for a protective order until motion/objection has been resolved. The courts will only allow this if the facts are not related to the merits
of the claim (bc that’s what the motion hinges on) (BUT they can still move for protective order)
Rule 26(d)(2) – cannot seek discover until after pretrial conference 26f
(e) – must correct something you know was wrong earlier
(f) pretrial conference – parties must confer as soon as practicable and at least 21 days before scheduling conference is held or scheduling
order 16b
(g) – like rule 11 sanctions – attny signature req and can be sanctioned
Rule 37 – compel disclosure + sanctions (must first prove that in good faith conferred w/ other party) – if successful, other party may have to
pay fees – provides sanctions (striking claims, taking disputed facts as established, excluding evidence, dismissing an action)
Rule 11(3)(b) – Discovering on Uncertain Claim - Even if you’re not sure you have a claim yet, you can invoke this rule for discovery if it is
reasonable under the circumstances that “the factual contentions, if identified, will have evidentiary support after reasonable opportunity for
further investigation or discovery”
Basic Methods of Discovery
ABA Model Rules of Professional Conduct
Rule 3.1 Meritorious Claims and Contentions – good basis in law/fact, for modification of existing law, not frivolous
Rule 3.2 Expediting Litigation – reasonable efforts to expedite litigation consistent with interest of client
Mostly a self-help thing.
Pretrial conferences must be made before parties can use interrogatories, req for docs, and depositions (R26f)
Rule 26 (a) (1)Automatic disclosure







Created in 1993, rationale that certain info will always be requested, so mandate w/o need for a request.
Amended in 2000: removing awkward obligation to disclose unfavorable witnesses and info.
limited to discoverable info and witnesses the party “may use to support its claims or defense”
Does not force disclosure of damaging information. If party does not intend to present at trial.
Rule 26 (a)(1)(B): 8 categories of cases exempted from discovery
Rule 26(f) requires parties to meet and confer about disclosure and discovery
Rule 26 (d)(1) parties are barred from traditional discovery until the meeting
Rule 33 Interrogatories – no more than 25 allowed, any matter under 26b, objections must be made within 30 days

Questions to parties only seeking relevant information

Good because they’re cheap, answers are planned w/help of lawyer

MOST EFFECTIVE: for getting background information

Also useful to force opponent to specify ground of general claims in “contention interrogatories”

Responding party can Rule 33(d) allow a search through records

Only have to answer what you know/within your control

33(d) – instead of answering involving business records, may invite responding party to inspect records – impose discovery cost on other party
O’Brien v International Brotherhood of Electrical Workers - Parties can ask for interrogatories for anything except issues of pure law – “even opinion or
contention that relates to fact or application of law to fact” 33(a)(2), R33(c)
Brandenberg v Israel Airlines – 33(a)(2) – Interrogatories – can ask about scope 26b. P sues 2 airlines for negligence but doesn’t remember events, was
asked by D on factual basis of claim. P doesn’t remember, pleads that this is legal question. Holding: D is entitled to as about factual basis for claim against
them.
Umphres v Shell – P asked D to answer questions about conspiracy. Holding: D is allowed to ask facts on P’s def of conspiracy
Rule 34 Production of documents – nonparties can be compelled by subpoena (34c)
Parties are obviously resistant to this and will not reveal unless asked in many cases, and will try to construe them narrowly and liberally to invoke privileges or
other objections. Payment is worked out between the parties.
Rule 34 (b)(1)(B) opening files allows responding party to open all files→ create burden on requesting party to go through them.
Rule 34 (a)(1) sampling and testing allows production for testing and sampling, and entry on land for testing, etc.
Rule 37 – if you resist too much you can be sanctioned
E-discovery (Rule 16 pretrial conf allows this)

Changes in 2006 to allow discovery of electronic storage
Rule 26(b)(2(B): disputes over e-docs not “reasonably accessible”: court considers whether to order production, deny production, or order with restrictions. And
decides who pays. (but even if not reasonably accessible, can force to do w/due cause)
Rule 26(b)(5)(B) if party inadvertently discloses info, may notify opponent who then MUST destroy, return, hold info.
(Rule 16(b)(5)(B)(iv) says parties can also discuss what happens with inadvertent disclosure in scheduling conference)
Rule 37(e) No sanctions for destruction of e-docs through “routine good faith operation of e-info system.” However, there may be sanctions if party failed to
prevent auto-deletion of info relevant to litigation.
Rule 30 Oral DEPOSITION: taking testimony from witness under oath – can only take 10
 Both parties sit with witness and questions
 A(2) – can only do once before need leave of ct
Rule 30(c)(1)Witness is sworn, testimony subject to penalties for perjury
 Most effective means for getting detailed info from witnesses before trial
o
Counsels get to SEE the party/witness; assess effectiveness as witness
o
b/c required to answer spontaneously, provides better preview of testimony than interrogatories
o
follow up questions allow counsel to explore detailed issues
o
gets deponent on record so they can’t change their story later
 drawback: time and expense
Rule 30(a)(1): says “any person including the party” can be deposed.
 If deponent a party, end notice of time/place Rule 30 (b)(1)
 NOT a party RULE 45 subpoena required.
 Rule 30(c)(2): even if opposing counsel objects, deponent answers, objection noted→ saves time b/c the most cases don’t go to trial and thus don’t
need objections litigated prior. Unless…
 Rule 30(d)(2): sanction
 Opposing parties have right to cross-examine. (to clarify statements, or if it’s a trial deposition instead of discovery deposition”, opposing counsel will
fully cross examine)
 Trial deposition = deposition used instead of witness LIVE testimony at trial. For when…witness cannot be subpoenaed to testify in trial district, or
unable to testify in person.
 Can depose in a different state if needed to serve via subpoena
Rule 31 – Written Depot - cheaper, but party can frame answer, so usually not used
30(d) – can halt exam if its too offensive
Rule 35 physical or mental examination

Parties must obtain a court order to authorize physical and mental exams of parties whose condition is at issue b/c of intrusive nature, and only for
“good cause”. See Rule 35 (a)(2)
 Rule 35(b)(1) party must provide a copy of independent examiner’s report to party
 Rule 35 (b)(3) party must also provide copy of exams and reports from own physicians.
Schlagenhauf v. Holder
Facts: Collision between bus and tractor-trailer. Contributory negligence alleged on bus driver.
Holding: Not good cause for physical examination. Schlagenhauf did not put his physical condition in controversy.
Still, it appears that R 35, in most cases should not apply to a  -- s are not the one who actively put their medical conditions in controversy. When a 
files a personal injury suit, their medical conditions are immediately in controversy.
Rule 36(b) Requests for admission : Narrows the scope of trial by eliminating uncontested issues


Party sends request to opponent to admit facts. Must admit or deny, or raise objection.
But if a party makes a mistake, judges allow withdrawal of admissions b/c they would rather case be decided on merits, no on mistaken concessions.
Rule 37 Sanctions for Failure to Make Discovery: Order to compel discovery: if the opposition doesn’t comply with request for really
important info
Rule 37(a)(1), party must first confer informally with opponent to resolve dispute without court involvement
Rule 37(a)(3) move to compel disclosure or discovery.
Rule 37(a)(5) if the motion granted→ court MAY order paying moving party’s expenses and fees for the motion to compel.
Rule 37 (a)(5)(C) protective orders defining scope of required discovery
Rule 37(b) authorizes sanctions if compelled party still respond adequately.
 37(c) Striking claims, taking disputed facts or claims as estb. Excluding evidence, dismissing action, ordering payment of feeds and expenses
BOTTOM LINE: even if there is a threat of sanction in the background, the difficulty/time/irritating the judge → most discovery issues get left
unresolved/resolved w/o court intervention
Rule 32 – exceptions to here-say rule where depositions can be used in ct
• can use deposition to contradict/impeach testimony given by deponent as witness (if a witness says something in deposition, then something else in ct)
Federal Rules of Evidence 802-803 – Heresay Rule out-of-court statements cannot be used to prove a statement
Freed v Erie Lackawanna Railway:
Facts: During trial ∆ produced testimony that conflicted with statements made during interrogatories;  argued that ∆ should be bound by
interrogatory responses.
Holding: Issue of discrepancy between interrogatory and trial evidence is for finders of fact to consider (admissions are different though because
issue treated as closed)
45 – Subpoena (b) Depositions -r30, (c) electronically stored info –r26, (d) produce –r34
• anyone at least 18 years old and not a party can serve – 45(b)(2) - may b served in (a) district of issuing ct, (b) district within 100 miles of place for depot,
hearing, trail, production, inspection, (c) within state of issuing ct – MUST BE DELIVERED IN PERSON (b)(1)
• 1- day fees + mileage must be given
Dismissal for Failure to State a Claim (12b6) Cf. to Summary Judgment (Rule 56)
*Its harder to for party bearing burden of proof to get Summary Judgment. They’ll usually have to wait for JMOL after jury deliberates.
Rule 12(b)(6) Failure to state a claim – no legally sufficient claim
Rule 12b6 allows D to dismiss a complaint that does not state a legally sufficient claim.
 Court doesn’t consider other pleadings or evidence, but will assume facts are true – in favor of pleader
 DRASTIC! Because P will not have opportunity to present case to jury OR gather evidence through discovery
 SO, courts generously allow AMENDMENT (at least once)
 Does not weed out cases where cause of action is properly alleged, BUT π cannot prove it! - A general claim (fewer details) helps
you b/c ct cannot make any assumptions.
Rule 56 Motion for Summary Judgment – no dispute over MATERIAL facts
Summary judgment is a motion that can be entered into 20 days after the action commences (or after the opposing party motions for SJ) (r56a),
and at least 10 days before the trial. It sets for that there are no disputes over material facts, and is used in situations where the P meets the
burden set forth by 12b6 (stating a claim) but fails to prove one or more of those elements. A motion should only be approved when the (r56c)
material facts are no longer in dispute; rather the dispute is only about the legal implication of these facts.
Anderson v Liberty Lobby holds that a judge must take into account the burden of proof in determining the motion: as the P’s BOP rises, the
standard cts impose on granting SJ motion by the D decreases. [In this case… ]
On the other hand, Celotex holds that a party moving for SJ need only show that the opposing party lacks evidence to support its case, whereupon
the burden shifts to P to provide evidence to oppose the motion. [
]
Pro: This motion avoids the risk of irrational decision-making by the jury and the delay/expense of trying improvable cases.
Cons: Potential judge error in making ultimate decision of whether issues of material fact exists. Decision could come before sufficient discovery,
materials used in support of SJ may not be admissible at trial, so the quality of evidence may be lower.




Facts are mutually agreed upon, dispute about legal implication.
56(c), (d) Resolve individual claims in a multi-claim lawsuit
Judge’s role: determine only whether parties’ evidence reveal such a factual dispute, if so, send to jury
More difficult to grant for the party w/ burden of proof

56(c): Appropriate only if evidence demonstrates there are no disputed issues of material fact to be tried, and moving party is entitled to
judgment on the undisputed facts
o
56 (c), 56 (e) Support motion with : affidavits, depositions, answers to interrogatories, admissions, admissible docs.
o
R.56(f) allows court to grant parties permission to seek more information through discovery
o
These things don’t always have to be admissible at trial.
o
Partial or full grant ok

56(e): other party has to respond giving evidence why sum judgment should NOT be granted (countervailing evidence).
o
Burden of opposing party: simply show he has legally competent evidence on which a jury could resolve the factual issues in his favor.
o
Cannot respond solely with allegations – must show proof now
o
However, you can respond by saying that the party w/burden of proof lacks adequate ev. to meet the burden, without pleading
evidence of your own – Celotex Corp v Catrett – showing opposing party lacks evidence sufficient to support its case is enough
The “Summary Judgment Trilogy”
• Celotex Corp v Catrett (1986) - the Court held that a party moving for summary judgment need only show that the opposing party lacks evidence
sufficient to support its case
• Anderson v Liberty Lobby, Inc. (1986) – Cannot have summary judgment w/out “clear and convincing proof”. Tells judge to take into account
burden of proof.
• Matsushita Elec. Indus. Co v Zenigh Radio Corp (1986) – antitrust case – range of plausible inferences that you can draw from facts (similar to
Twombly) at the Summary Judgment stage
American Airlines v Ulen – Ulen sued airline for negligence after suffering injuries in a plane crash. Court granted her motion for summary judgment
after answers to interrogatories showed plane was flying too low. Only material fact = damages, they requested to impanel a jury to det. damages.
Scott v Harris – video of police car hitting car – SC granted summary judgment based on video
Motion to dismiss 12b6
56 sum judge
Assuming it's all true (in the
pleading), has the person
presented a valid claim?
Δ can challenge those factual allegations.
Judge
Just looking at the
pleadings,
Cannot weigh the credibility
Standard of
review ON
APPEAL
De novo.
De novo
Moving party's
burdens
Δ… no.. Just based on
complaint/amended
pleadings
Celotex: you don't need to do anything really,
Anderson: at trial, they have to prove clear and convincing
evidence, but when Δ moves for sum judgment, court
should take into account the nature of the burden of
proof at trial!
Note: that could make it easier for Δ to get sum
judgement if the Π needs to meet higher burden at trial.
Paradox: you’re not supposed to weigh evidence
Matsushita: not as imp. Really only for antitrust conspiracy
claims.
Standard for
success
50 jmol
New trial
**you've gone through discovery, have evidence to show
Effectively, the same as SUM JUDGE….
Judge has to weigh the jury's
verdict against the great weight of
the evidence.
De novo
**abuse of discretion.
(standard for appeal much higher)
Judgment as a Matter of Law (Directed Verdict) Rule 50
3 ways to resolve a case:
1.
2.
12b(6) dismissal
Summary judgment
3.
Jury trial
No jury trial is OK because there is
“no genuine issue of material fact’
for jury to consider.
Right to jury trial protected by
constitution
2 ways for a judge to control the jury’s decision –making process:
1. JMOL
2. New trial
π’s burden of production
Between X and Y,
judge should NOT take the case from the jury.
Point W. Where
there is no proof
for PL
Line X-burden
of production;
after which
jury could legit
find π proved
each element
Line Z—where
evidence is equal
Line Y
burden of proof;
after which
reasonable jury
HAS to conclude
PL proved case
Rule 50 (a)(1)(B): motion for judgment as a matter of law

Previously known as “directed verdict”; new name better b/c :
1. it removes any indication that jury had anything to do with the outcome.
2. Emphasizes judge does not resolve factual matters, just legal judgment that evidence so lopsided no meaningful factual dispute

Made by party seeking to have judge take the case from jury on the ground that evidence is too weak to support a verdict

TIMING: anytime b4 case submitted to jury. (For renewing motion after trial, <10 days after judgment, <10 days after jury
discharged)
Rule 50 (a)(1) JMOL standard: no legally sufficient evidentiary basis to find for non moving party
What is legally sufficient?? 3 options:
o
o
o
A few states: “scintilla of evidence” enough to support → jury. See Brown v. Turner (AL 1986)
Judge looks at ONLY evidence that supports case for nonmoving party, assume truth, take all inferences and enter JMOL only if evidence would
not support verdict for non-moving party. See Reeves v. Sanderson Planting Products, inc (US 2000) ; Wilkerson v. McCarthy, US 1949)
 NOTE: judge may not determine credibility of the witnesses; rather, if jury believed witnesses…
Rule 50(a) federal standard: Judge considers the nonmoving party’s evidence in most favorable light, BUT ALSO, consider any evidence put
forward by moving party that is not impeached or contradicted→ as in considering all the evidence. See Boeing Co. v. Shipman (5th Cir, 1969).
Judgment notwithstanding the verdict = asking judge to
decide differently from what jury came up with b/c the evidence
was clearly pointing one way. Not the jury’s way.
 Standard is same as directed verdict. See Chapter 24. =
opponent’s evidence so weak that no reasonable jury
could have reached a verdict for him.
 Asserting that jury acted irrationally.
 1991: jnov → changed to JMOL Rule 50 (b)
Rationale for allowing JNOV AFTER jury deliberation
 Frequently appealed. And when appealed, the
evidence is debatable, COA may send back for jury trial
and then it’s more efficient to have had the jury trial to
fall back on.
Rule 50(b) Prerequisites to renewed motion:


Motion must be filed within 10 days of entry of judgment. See
Rule 58, 79(a)
Can only move after verdict, if preserved the right by moving
before – ITS MUST ALSO BE ON THE SAME GROUND AS
BEFORE
o
Silly historical reason: 7th amendment
o
b/c Rule 50 (a)(2) says party moving for JMOL before
verdict needs to state their grounds for concluding not
to send to jury, and at that time, the opposing party has
a chance to fix any problems (cure the defect). It’s to
prevent “sandbagging” the other party by raising
defects AFTER jury has been dismissed. Goes back the
aspiration of the FRCP to determine suits on the MERITS
not on the procedural skills.
Rule 59 New Trial
2 categories where ct traditionally grant new trials:
*If new trial is granted, the party winning the first trial cannot appeal until 2 nd trial is over (b/c there was no final judgment yet)
1.
Errors in the trial process
a. b/c every litigant has right to due process of law (14th)
b. things like improper admission/
 if the losing party MOVES right away, Rule 59 allows judge to vacate and order retrial.
 If the losing party MOVES and judge denies, party will APPEAL and COA would reverse, and new trial.
2.
Judge believes trial process was fair but the result is clearly wrong
 “against the ‘clear weight’, ‘overwhelming eight’ or ‘great weight of the evidence” See Goldsmith v. Diamond Shamrock co, (8 th Cir,
1985)
 When it is “quite clear that the jury has reached a seriously erroneous result” See Lind v. Schenley Ind. (3 rd Cir, 1960)
 When new trial is “necessary to prevent injustice” See Whalen v. Roanoke County Board (4th Cir, 1985)
 Evidence is strong enough to rationally support jury’s verdict but believes verdict is erroneous.
*NOW, the judge can weigh the evidence
Pros and Cons of a new trial:
 Judge is acting like a 13th juror,
 it’s not as bad as JMOL b/c it’s still being decided by jury
 it sucks b/c USC § 1291 says grants for new trial may not be appealed b/c there is no final decision at trial level yet!
o Note: some state systems allow interlocutory appeal.
Different Standards for appellate review:
1. Questions of law: reviewed de novo, from scratch, w/o deference to trial judge’s decision
2. Questions of Great weight over evidence reviewed w/deference to trial judge → rare for appellate to 2nd guess grant for new trial.
FORK:
OLD cases show federal courts reluctant to overturn grants for new trial;
NEW trend: review them under “abuse of discretion” standard. Approved by SCOTUS in Gasperini.
Rule 50 (c)(1) judges faced with combined motions must rule on both
the JMOL (JNOV) and make conditional ruling on alternative new trial so that COA can address both at appeal.
Rule 50 (d)
Rule 50 (e)
Res Judicata
Operates to prevent relitigation of claims already litigated and claims that could and should have been litigated.
Policy: (based on social policy—aims to be functional, rather than pure technicality). Legal System: Ct would waste precious public resources where it doesn’t
have to, reliability of ct judgments
D  Not fair to subject D’s to serial suits – otherwise judgment would be worth nothing if still subject to suit after winning.
P Avoid cutting off potential meritorious claims that have never been litigated
On the merits: w/prejudice, where had leave to amend (ie: 12b6 fail to state claim), full trial on the merits, failure to prosecute
Not on the merits: Rule 41 – lack of juris, improper venue, failure to join r19
Requirements:
Final judgment
-some allow RJ even if on appeal, others wait for it to run
On the merits (Rule 41)
- mere dismissal is not a bar, unless notice/order states otherwise
Same transaction or occurrence
- if claim didn’t exist @time of action, its not the same claim
Same parties/privies
*Once a party is joined, all claims must be made against them too or they’re lost (if same transaction)
*If a motion was made and denied litigation, it wont be barred later
*You cant bind someone not party to Suit 1
Check – Does the counterclaim bar apply?
2R§25-26 – P must assert all claims arising from the same transaction/occurrence, or will lose unasserted part BUT you don’t have to join all parties
Claim Splitting – Sutcliff Storage – P brought 4 separate actions on renewed leases against gov to avoid suing in fed ct – ct said you cant split those claims (in
same district, identical actions), must bring together = preclusive effects
Williamson v Columbia Gas
O’Brian v City of Syracuse
Hennepin v Fort Wayne
2 actions on 2 diff claims/law – 1. conspiracy, 2. tort. Action 2 dismissed for statute of limitations, Judgment on 2 precluded 1.
• Doesn’t matter what’s brought first, what finishes first will preclude the other
• Same underlying transaction – same facts, evidence, relief)
Initial claim: takings, 2nd: trespass. Different theory, same transaction = Barred
P loses on K claim, then 2nd moves to alter K. Barred = should have altered in 1st suit.
Rinehart v Locke
Dismissal for failure to obey court orders treated as “on the merits” and given preclusive effect so as not to take teeth out of
the sanction
Waterhouse v. Levine
Dismissal for prematurity is not judgment on the merits – when later rebrought with different facts, its not barred (b/c you
don’t yet have that claim)
Statute of limitations acts as judgment on merits only within same jurisdiction
Counterclaims (depends on jurisdiction)
Compulsory
According to federal judge-made/common law, compulsory counter claims must be pleaded or else they are lose. Some states don’t have compulsory counter-claim
laws, and in those jurisdictions, they don’t necessarily have to be pleaded. However, regardless, common law can overrule state statutes by barring any counterclaims brought later that would nullify previous judgments (see Menard v Liteway) (2R of Judgments §22).
The exception to this is that you wont be required to claim something you could not have asserted in your original claim (see Dindo v Whitney)
If court doesn’t have rule, it may STILL be barred if conflicts w/judgment in Suit 1
Menard v Liteway
Barred despite no court rule b/c counter-claim #2 attacks judgment in Suit 1
Suit 1: LM (unpaid invoices). L wins. Suit 2: ML (didn’t reimburse fully for unpaid returns) - “Merely an attempt to collaterally attack original jdmt”
Exception to Counter-Claim Bar – No Knowledge
Dindo v Whitney
P brought personal injury against D in driving accident. Suit 1: settled for certain amount. Then D realized he had counterclaim based on new facts. Suit 2:
D brought action against P. D said he had no idea he could have filed it earlier.
• Ct didn’t expend a lot of effort on dismissal (settlement)
• Whitney didn’t demand that Dindo release all claims against him. He should have req. “release as a condition of settlement”
Permissive
Permissive claim don’t have to be pleaded.
• Restatement (Second) of Judgments § 58 “where the defendant does not interpose a counterclaim although he is entitled to do so, he is not
precluded thereby from subsequently maintaining an action against the plaintiff on the cause of action which could have been set up as a
counterclaim.”)
- HOWEVER, Preclusion applies when a second claim is related in such a way that if the D prevailed on the claim in the subsequent action, the effect
would be to nullify the prior judgment
Permissive counterclaim – preclusive effect depends on who won
Permissive action barred IF Suit 2 directly attacks Suit 1
(Landlord/Tenant – fraudulently induced lease signing). D raises as affirmative defense in Suit 1 but now brings separately in Suit 2.
Schwabe v. Chantilly
Question: Does something in Suit 2 constitute an attack on Suit 1?
Holding: Preclusive effect of initial action depends on who won.
• If P won, D cannot file new claim – collateral estoppel (would potentially upset judgment)
• If D won, D can file new claim (would not upset judgment; no inconsistency)
Privity
• Successors in property interest
• Substantial legal relationship (ie: landowner/tenant = privity when regarding legal right to own land, exception below)
• People represented by a party in the action (Taylor v Sturgell Test)
(1) Interest of 2 parties aligned
(2) Party in Suit 1 really protected later party
(3) Absent party knew about Suit 1 (sometimes req. notice)
Did the nonparty control the defense of the first suit?
Did they have full & fair opportunity?
Exception: Showworld – landowner owns property, showworld leases one space. City ordinance imposes eviction. Even tho same attorney
represented both parties, showworlds interests were different (diff. legal interest) (landowner/tenant rel. not upheld)
Neenan – bus crash w/driver. Suit 1: driver vs bus, driver wins w/no negl. Suit 2: passenger sues, wins against both. There was no privity b/c interests
werent’ represented. We don’t want to shift liability upon an irresponsible person who cared little about a judgment against him. Must give
interested party an opportunity to litigate. (no party, no privity, interests not represented)
Claim theories
18a: even though “may” join, RJ means that practically speaking, USE IT OR LOSE IT  MUST
However, 18a does not bar claims the court could not hear b/c lack of jurisdiction.
Claim parties: more generous than claim theories.
 Claims against additional parties who COULD be joined not barred by RJ.
 b/c π is the master of the claim
 HOWEVER, the first suit may have some preclusive effect. b/c of C. Estoppel
One suit with joined Δs
2 separate suits
Collateral Estoppel, aka Issue Preclusion
STEPS
(1) 4 basic reqs for mutual estoppel (same issue, litigated/full-fair opp, decided, necessary to judgment)
(2) Do exceptions 2R§28 apply?
(3) K, does it fit non-mutual estoppel?
Judicial Estoppel (cant change your story in 2nd trial)
Equitable Estoppel
Inconsistent Prior Conduct (ie: prior lawsuit, or something else)
Reliance
Inconsistent Prior Conduct in Judicial Proceeding
*don’t need reliance – just stops you from bringing up diff stories in ct
*ie: a position they took (ie: I did this on Thursday… jk, on friday)
*strictly applied
----
Mutual Estoppel
Must be same issue (fact/fact+law)
Issue must have been litigated (not just raised) – Valid & Final Judgment (Valid 8 types)
Was there full and fair opportunity to litigate? (Full incentive to litigate?)
Judgment must have been decided
Was the issues necessary to court’s judgment? (otherwise it could not have been appealed)
Alternative or Essential determination? - A fact can become preclusive when it’s the basis for judgment (Cambria) but…
Blue Goose v Little
Necessary Issues are precluded
Action 1:BG sues L and wins (L negligent, BG not contributily negligent). | Action 2: L sues BG.
Holding: Precluded bc BG’s non-negligence + L’s negligence already decided, & both essential to the judgment (if either changed, outcome different)
Jacobson v Miller
Cambria v Jeffery
Helburn(?) v Schwarz
You can raise defenses in later suit – various considerations: smallness of amt in controversy, difficulty of getting
evidence, expense of litigation, own situation @ the time.
Not necessary = no preclusion. A mere fact adjudicated but not found essential to judgment = no preclusion
Suit 1 – negligence, Suit 2 – D (C) sues – but the negligence made no determination made no diff so you can use that
issue in suit 2.
There were alternatives so not precluded
Alternative Determinations (more than one issue could have led to judgment)
1st Restatement – (Majority View) - both are preclusive Provides incentive to appeal & reverse one so won’t be precluded
2nd Restatement (Minority View) – neither is preclusive unless affirmed on appeal - no incentive
Essential Determination – both barred
**You don’t have to worry about the alternative det. If the 2nd hypothetical was exactly the same (also an “either” determination)
Exceptions - Restatement §28

Intervening Change in Law (more likely for business than for individuals – corps. live forever) –see Moite

Party could not have obtained review of judgment in initial suit

Substantial Difference in the Court Procedures

Not foreseeable that issue would arise in context of subsequent action

Heavier burden of proof in initial action, than in later. (procedural differences)

Inability to Appeal: winner may not appeal, so is not precluded

No fair/full opportunity to litigate

Nonmutual offensive estoppel against the U.S. government is not permitted (Mendoza) - Because government is frequent repeat player in litigation
so preclusion would be crippling – Defensive mutual estoppel still available against the government

Where nonparty could have joined in prior action

Whether important relationships between parties in first action absent in second

Whether preclusion may complicate second action or prejudice another party

Public Interest
- - Indemnity Exception – when 2nd lawsuit would render 1st useless
Spilker v. Hankin: payment to attorney by series of notes. Suit for nonpayment on two notes – attorney wins. Second suit for nonpayment as to rest
of notes. Court does not preclude issue because fiduciary relationship requires ethical conduct, making relitigation better suited to obtain justice.
Use of New Law (only if preserved by appeal)
Federated Department Stores v. Moitie, Suit 1: P’s brought price-fixing action against dept stores – all dismissed. Suit 2: Another P brought later
action based on diff theory, and was barred by res judicata. Suit 1: P’s won in appeal. Can P2 benefit from appeal in Suit 1? No, res judicata – we
want an end to litigation for public policy
**Change in law: If party does not properly preserve its objection to a ruling by appealing TC decision, judgment final/preclusive. But on appeal, ct
will apply the law in effect at the time of appeal (new law).
Symtec – In the same district ct, Rule 41 will govern both cases. It tells you the ability of that ct to govern its own processes. In other districts, Rule 41 will just
act as a guide.
Non Mutual Collateral Estoppel aka NMIP
#1 Fair and Full opportunity? (2R§29 – against nonparties only if f&f) ---- did they have opportunity to appeal
Defensive– New D precluding past losing party (usually P) from raising litigated point Loser D, D estops
Capacity of person suing – she was Administrator of estate rep same persons/interests (same P!)
Issue already decide?
Bernhard v. Bank of America Nat’l Trust & Savings Assoc.: 1: sues lawyer, loses (gift), 2: sues bank. – same fact, same issue, litigated
Blonder-Tongue v U.Illinois – patent declared invalid (1), sues new P for infringe (2)
• Full/fair opportunity
• Issues already decided
Offensive- P imposes liability on loser in prior action. PLoser
#2 Parklane Test – (1: SEC won action against D, 2: NP sues D)
1. Could party have joined in first action? (Don’t incentivize “wait and see”) - here, no b/c had to wait for first trial to resolve
2. Would it be unfair?
i. Was it vigorously defended/strong incentive?
ii. Inconsistent w/previous judgments?
iii. Procedural opportunities in suit 2 not available in suit 1? (Remember, D didn’t pick forum earlier)
• This is harder to prove allow b/c D (in first suit) didn’t choose forum
Restatement of Judgments §27: c. estoppel
Party stopped from relitigating an issue he had litigated in a prior suit and lost.
Non-mutual issue preclusion:
Allows a new party to invoke IP against a party who litigated and lost on an issue in a prior issue.
party must have had “full and fair” opportunity to litigate issue in first action 2R§29
Issues to consider: could nonparty have joined in prior action, was prior determination inconsistent with some other determination of
same issue, will it prejudice or complicate 2nd action?
Bernhard v. Bank of America National Trust & Savings Assn.
 First established NMIP
 First claim: Mrs. B → Cook, claimed funds were part of estate.
 Second claim: Mrs. B → bank, for the funds given to Cook.
o
Bank claimed IP b/c in Suit 1, issue of who had the right to funds had already been litigated.
Claim Preclusion
Issue Preclusion
Valid and final judgment
Valid and final judgment
On the merits
Issue was actually litigated (full and fair opp)
Same or related claim
Issue was actually determined, and determination was
necessary to the judgment
Same parties or their privies
Same parties or their privies, but…
Judgment before final suits are over
• Collateral order doctrine: When treating judgment as final even before its reached final stages. (1) claim of rights separate from merits, (2)
(2) final judgment (3) unreviewable on appeal of final judgment (ie: incorrect forum, final conclusive determination, immunity)
• Interlocutory Appeal - Categorical – 1292(a): For orders affecting injunctions or orders involving directing sale of property
• Interlocutory Appeal - Ad hoc – 1292(b): A controlling question of law, where there is substantial ground for difference of opinion,
whereby the interlocutory appeal would materially advance the ultimate termination of the decision. (AC must approve) (i.e., conflicting
decisions in two lower courts, needs decision from appellate court to advance litigation)
• Rule 54(b): Get final judgment on some claims (just need approval of judge)  cts may direct final judgment (R58)
• Writ of Mandamus – when lower ct has overstepped boundaries..
Appeal: 30 days from final judgment to get appeal (starts when final judgment entered under Rule 58), 60 days if involves US. Appeals can
make non-precedent opinions on TC judgments.
§1291 – Final Decision Rule: TC must come to final judgment b4 appeal – minimize transaction costs, may prove moot
Deadlines to:
File a claim: look to SOL
Respond to complaint: 21 days after being service complaint/summons
(Rule 12a1Ai). (crossclaims is also 21 days 12a1b) OR: 60 days is service is waived. (Rule 12a1Ai)
Respond to counter/crossclaim: 20 days. (12a1B)
Request a more definite statement: 10 days after notice of order. (12e)
Response to request for more definite statement: 10 days (12a4B)
Amend a pleading: anytime before responsive pleading is served, or
within 20 days after serving the pleading if responsive pleading is not
allowed and the action is not on the trial calendar (15a1A-B). OR if
opposing party consents or the court's leave (15a2).
R16 pretrial conferences: Judge may order ASAP, but must do it within 120 days after defendant served, or 90 days after defendant appeared.
(16b2)
26f conference: schedule