I. Is Subject Matter Jurisdiction proper? ........................................................................ 2
II. Is Supplemental Jurisdiction proper? .......................................................................... 5
III.
Is Removal proper? ................................................................................................. 6
IV.
Forum non conveniens and transfer ........................................................................ 8
V. Is Personal Jurisdiction over the  proper?................................................................. 9
VI.
Should a federal court apply state or federal law (Choice of law)? ...................... 11
VII. Claim Preclusion from a prior case involving the same parties? .......................... 12
VIII. Issue Preclusion from a case involving one of the parties? .................................. 15
IX.
Was there proper notice? ...................................................................................... 19
X. Should additional claims and be added? ................................................................... 19
XI.
Should another  or  be added to the case? (Rule 14/19/20)? ........................... 20
XII. Is a class action proper (Rule 23)? ........................................................................ 23
XIII. Will the case go before a jury? ............................................................................. 26
XIV.
Summary Judgment proper for any party?........................................................ 28
XV. Should the party win as a matter of law? .............................................................. 29
XVI.
On a specific issue, who has the burden of production and persuasion? .......... 30
XVII.
Is a new trial proper (Rule 50)? ........................................................................ 30
XVIII. Was Due Process satisfied? .............................................................................. 30
XIX.
What are the proper remedies? ......................................................................... 32
XX. Are the Pleadings, Dismissal Motions, Answers, Defenses, and Amendments all
proper? .............................................................................................................................. 34
XXI.
Is there a Rule 11 violation? ............................................................................. 36
XXII.
What should Discovery entail? ......................................................................... 37
XXIII. International law ............................................................................................... 37
I. Is Subject Matter Jurisdiction proper?
A. Has the  properly raised a SMJ objection?
a) 12 (b) (1) -- can be brought up at any time (cannot consent to SMJ)
B. Is SMJ exclusive?
a) Has congress enumerated any of the claims as exclusively domain of
federal courts or some other court?
a) Federal Courts -- Copyright (Eliscu), Patents The U.S. as a
party
b) Indian Courts (Martinez)
C. Concurrent Federal Jurisdiction, may be brought or removed to federal court,
but State Court also has jurisdiction
a) State Court jurisdiction is broad (don’t have to justify), Federal Court
jurisdiction defined by:
a) Art. III s.2, Constitution,
b) 28 USC §1331, 28 USC §1332 (passed after civil war)
c) Congress
d) judge made law
b) Is there a federal question?
a) 28 USC §1331 -- Cases arising under Constitution, laws, or
treaties of the US?
(1) Arising under -- Well pleaded complaint rule, federal
law necessary to proving the ’s claim and that law creates
the cause of action (Mottley)
(i) Federal law creates the right, and the
right to sue for its violation
(a) Purpose: allows federal courts to
determine if they have SMJ from the
onset
(2) If yes, then can be in federal court.
(3) Double-check: Congressional Intent
(4) Tricks:
(a) Complaint must be well-pleaded cannot just
anticipate a federal defense that  may raise
(Mottley)
(b) If  raises federal question defense or
counterclaim, cannot remove, federal question must
be essential to the ’s claim
(c) Must do more than relate to federal law (Eliscu)
(d) If federal law only creates the right to sue under
State Law (and not any other right) it does not meet
2
the arising under test (Shoshone Mining Co. in
Glannon)
(e) If in district court on federal question, can use 4
(k) (2) to exercise personal jurisdiction over parties
who would otherwise would not be subject to
personal jurisdiction in any one state but who have
sufficient minimum contacts with the country
(f) When  must prove a pivotal question of
federal law in order to establish her state law claim,
(Smith in Glannon). Consistent with Motley
because have to look at what the  must establish.
(g) An action for declaratory judgment is only
considered federal question case if it would be one
had  sued .
(h) Look for defeat under when new  tries to join
under 19 or 24
3
c) Is there federal diversity jurisdiction?
a) 28 USC §1332 – Must be complete diversity of citizenship
(plus different states or foreign countries) and meet the amount of
controversy $75,000
(1) For persons, citizenship based on domicile, meaning
taken up residence and intend to reside indefinitely
(2) For corporations defined according where incorporated
and primarily place of business (nerve center test—where
decisions are made); they always have two citizenships
(3) For Class actions, only named ’s considered
b) For each claim, does the amount in controversy exceed
$75,000?
(1) Individual ’s can aggregate claims to reach $75K
(2) If looking for an injunction it is the value of the
injunction
(3) If final judgment is less than $75K court may deny
costs to  and impose costs on 
(4) Must be legal certainty that  will not recover 75K
d) Tricks
a) Using supplemental jurisdiction (28 USC 1367) to get around
amount in controversy requirement in ’s joined under 20 and 23
b) Court may still impose Rule 11 sanctions despite not having
SMJ (Willy v. Coastal Corp)
c) Has diversity been defeated through a new  brought in under
14, 19, 20, 24 and amended complaint? (Kroger)?
(1) 1 impleads non-diverse 2 and  amends complaint
to include 2, subject matter jurisdiction is defeated
(2) If  does not amend his complaint SMJ is not defeated
D. Is the action justiciable?
a) Ripe?
b) Standing to sue?
c) Moot?
d) Not collusive?
e) Political question doctrine?
E. Underlying policy goals of SMJ?
a) Redundancy
a) Error Reduction
b) Choice/Check among biases
c) Social Laboratory
d) Check on corruption
b) Federalism/Separation of powers
c) Definitive Interpretation of Federal Law
d) Diversity Jurisdiction losing support, may be eliminated
4
II. Is Supplemental Jurisdiction proper?
A. Question: A case in federal court, on federal question or diversity and
additional state claims are brought by one of the parties or an additional party
B. Based on the term “case” in Article III, but what does the “case” encompass
a) Gibbs Federal test
a) Original Federal Claim must have substance to confer SMJ
b) State and Federal claims must derive from a common nucleus
of operative fact
c) Supplemental Jurisdiction is never required, it is the court’s
discretion not a right
C. 28 USC 1367 (1990)
a) Supplemental Jurisdiction allowed where claims form part of the same
“case” (using Gibbs common nucleus of operative fact test), but must have
original federal basis, unless provided otherwise by federal statute
(including joinder or intervention)
b) In suit based on diversity, excludes state claims by  brought against
any new non-diverse party (Kroger), but if  does not amend his
complaint than it is proper (it is about choice) (so as not to gut §1332),
also new ’s under 19 or 24 will not receive supplemental jurisdiction
c) Discretion based on
a) Novel or complex issue of state law
b) State claims predominate
c) Court dismissed all federal claims
d) Compelling reason for declining
(1) Jury competence
(2) Efficiency
d) If plaintiff is willing to dismiss entire federal claims, can re-file within
the state courts for at least 30 days after dismissal
D. Judge can sever cases per Rule 42
E. Tricks:
a) 1367 (b) means the same  can never sue someone new who defeats
diversity (either citizenship or amount in controversy) AND that a new
plaintiff who defeats diversity can only be joined under 20 (permissive
joinder) or 23 (class action)
b) Court may continue to adjudicate supplemental state claims even if the
original federal jurisdiction is defeated, as long as they had real SMJ to
begin with (United Mine Workers)
c) Exercising supplemental jurisdiction is ALWAYS discretionary
d) Only supplemental claims in federal court on removal can be
remanded to state court, not if the case was filed in state court originally
(only if it is there on removal)
e) Supplemental jurisdiction can cover compulsory counterclaims but not
permissive counterclaim (by definition not from the same nucleus of
operative fact)
F. Underlying policy goals of Supplemental Jurisdiction?
a) Judicial economy
5
a) Lets get all the cases relating to the same facts in one trial, lets
not waste time of the court
b) Convenience and fairness to litigants
III. Is Removal proper?
A. Has  properly filed for removal?
a) Files notice within 30 days (with reason for federal jurisdiction)
b) A motion to remand within 30 days based on for erroneous procedure
or State Law predominating (§1441 (c)
B. 28 U.S.C. §1441
a) Proper any time  could have originally brought the case in federal
court except if in the ’s home court and there is no federal question
b) All ’s must agree for removal
c) If there is no federal question, cannot remove if any ’s are already on
their home court
d) If removed on diversity, must meet the amount in controversy and no
 can be in his home state
e) Ok, even if state court did not have proper jurisdiction §1441 (e)
f) Only can be removed to district court where the case is pending in
state court (even if venue would not have been proper there originally)
g) Once removed district court has jurisdiction over the entire case
(cannot remove part of it) -- federal claim and all supplemental state
claims but can remand parts or the whole thing if state law predominates
(Burnet v. Birmingham)
h)  can never remove, even if  makes a defense or new counterclaim
with federal question, and  can never remove to state court
C. Once removed
a) District court picks up the ball in mid-air (all orders, etc. are still in
effect)
b)  may request remand citing that district court does not have SMJ or
procedure for removal was flawed (procedure grounds must be made
within 30 days)
c) Can request remand state law predominates under §1441 (c)
d) If federal question drops out can ask for remand under 1367 (c) (3)
e) FRCP applies
D. Automatically removable
a) Federal officers
b) Civil Rights
c) Bankruptcy cases
d) International arbitration
b) Can never be removed
a) Railroads, workers compensation, action against carriers
E. Tricks
a) If it is removal for federal question (1331) the court may remand the
entire case (including federal question) if state law predominates (1441
(c) and Burnett v. Birmingham Board of Education)
6
b) For removal on diversity grounds make sure the amount of controversy
requirement is met!
c) Make sure that even if all ’s agree, we are not in one the ’s home
state
d) What if  adds non-diverse party to defeat removal?
a) State Court has discretion whether to accept amendment
F. If removal totally fails,  may be forced to pay attorney’s fees incurred if
removal fails and case is remanded
G. Underlying policy considerations for removal?
a) Give the  a countermove
b) But want to prevent manipulation of the system (forum shopping)
c) Concerns over local prejudice, same rational as diversity jurisdiction
(also why  cannot remove when the  files in state court where  lives)
a) Different juries
b) Different appeals (can appeal to a national forum)
c) Perception of fairness (choice and consent)
d) Politics
e) Dividing/Diluting Power
7
IV. Forum non conveniens and transfer
A. Has  properly raised an objection?
a) 12 (b) (3) must be asserted immediately or lost
B. Forum non conveniens a common law doctrine which predates transfer and
dismisses a case because the forum is not convenient
C. Piper/Gilbert Test for Forum Non Conveniens
a) Is there an alternative forum?
a) the other country very strict jurisdiction
b) it was dismissed for FNC in the other forum
c) the other forum is in country in war or shut down court
systems, the country is so bad we don’t recognize them
b) Balancing test – Private factors
(1) Access to evidence
(2) Cost to witness to go the trial
(3) Availability of compulsory process (can make
witnesses come to trial)
(4) Expenses
c) Balancing Test -- Public Factors:
(1) Preference to settle local disputes locally, danger of
imperialism, etc.
(2) Avoid the difficulty applying foreign law
(3) Burden on jurors to hear a case which has no local
impact
d) Should there be any conditions placed on the dismissal?
a) I.e. Waiver of the statute of limits
b) Use the FRCP for Service of Process (Bhopal)
D. Transfer
a) § 1404. Change of venue
a) For the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other
district or division where it might have been brought.
E. Tricks
a) Choice of law statute transfers with case but not if new party is joined
post-transfer (Piper)
8
V. Is Personal Jurisdiction over the  proper?
A. Has the  properly raised the PJ objection?
a) 12 (b) (2); waived if not raised in the answer
B. Is there traditional presence basis for PJ?
a) Domicile?
b) Consent?
c) In hand service of process/physical presence?
a) Has there been fraudulent inducement? If so, invalid.
C. Does the state long arm statute reach the  for the cause of action?
D. If yes, is the long arm statute consistent within the constitutional due process
standard of minimum contacts w/traditional notions of fair play and substantial
justice? (International Shoe)
a) Minimum Contacts (necessary but not sufficient)
a) Nature of conduct which connects  to forum state:
(1) Number of Contacts (at the time of the alleged wrong
doing)
(2) Degree of Relatedness; does the cause of action arise
out of the contacts? (McGee: one highly related contact
enough to PJ)
b) Did the  purposefully avail themselves to laws of the forum
state?
(1) Did  advertise or solicit (Asahi)
(2) Did  undertake long-term contract with someone in
that state (BK)
(3) Are the contacts more like BK or VW?
(4) Are the contacts unilateral (Hanson) or bilateral (BK)?
(5) Is the substantive issue contracts/negotiations (BK),
intentional torts (Calder), or unintentional torts (VW)?
b) Fair Play
a) Did the  purposefully avail himself to get the privilege of
conducting business or other benefits of that state?
(1) Still undetermined whether placing of stream of
commerce is enough, in any case stream of commerce ends
once the consumer purchases the product (Asahi, VW)
b) Should have  reasonably expected to be haled into court
(circular)?
(1) Some voluntary conduct short of intending to expose
yourself to a suit.
c) Comparative burden
(1) Who is it more burdensome to move the litigation
outside the state: who has more money?
(2) What about witnesses?
c) Justice
a) States have an interest in protecting substantive legal interests
and local industries
b) State interested in providing forum for resident 
9
E.
F.
G.
H.
c) General interest in an inter-state system for efficient resolution
Does  have a K with  specifying a forum to resolve disputes?
a) For PJ in a particular forum?
a) Is there consideration for the clause i.e., lower prices (Carnival
Cruise)?
b) Would a reasonable person accepted the clause?
b) Choice of law?
a) Goes towards purposeful availment and reasonably expecting
to be haled into court (BK)
b) Counterargument: it is boiler plate K and why didn’t they just
make it a forum selection clause?
Federal Courts Long Arm Statute 4 k (2)
a) If a state court can reach the  under their own long arm statute than
so can a federal court sitting in that
b) Parties brought in on 14 or 19 can be served within 100 miles of the
courtroom
c) Federal question cases, over parties who have sufficient contacts with
the US as a whole to constitutionally support jurisdiction, but whose
contacts would not suffice to support jurisdiction in any of the courts
Tricks
a) Foreseeability on its own is not enough to satisfy the test (Asahi)
b) Difference in Long-Arm Statute of effects and commission of a tort
c) Quasi in-rem also uses minimum contacts test (Shaffer)
d) Liability of web cases based on interactivity (Millennium), web sites
don’t automatically projected to a user’s computer
e) Forum selection clauses in contracts of adhesion are enforceable so
long as reasonable (Carnival Cruise)
Underlying policy goals of PJ
a) Protect Individual Liberty
b) Limiting the power of courts, NOT about convenience
10
VI. Should a federal court apply state or federal law (Choice of law)?
A. CHECK FOR DIVERSITY
B. Is there a conflict between the state and federal law?
a) If yes, use flow chart
b) If no, apply both!
C. Is there is a direct federal authority, apply it (per Hanna):
a) Constitutional provision
b) Federal statute
a) Constitutional?
c) FRCP
a) Consistent with REA (does not abridge, enlarge or modify the
substantive right of any litigant and is constitutional on point)
b) Constitutional?
D. If there is no federal authority, then apply Erie, York, Byrd, Hanna
a) Is the question substantive as opposed to procedural?
a) If so, state law always applies (Erie)
b) Is it procedural? Modified Outcome-Determinative balancing test of
the following:
a) Would state law would bar recovery or otherwise significantly
impact ultimate recovery? (York, outcome determinative test, has
been gutted by the two rules below)
b) Federal interests that arise from their status as an independent
judicial system, like the constitutional right to a jury (Byrd)
c) How likely is choosing the federal rule lead to forum shopping
or inequitable administration of the law (Hanna dicta)
c) Is it a conflicting procedure that would not be outcome determinative?
a) Use federal rule
E. If state law applies, how does a federal court determine what the law is?
a) Fed courts do not make state law, just try to predict how state court
would decide
a) Decision from State Highest Court or State Legislature
b) Dicta
c) From neighboring jurisdictions
d) Scholarship
e) Common law reasoning
f) Seek certification of question
F. Which state law should apply?
a) Which state’s law is to be used is determined by applying the state
where it is sitting choice of law provisions
b) Do  and  have a K specifying choice of law?
a) Is there consideration for the clause (lower prices aka Carnival
Cruise)?
b) Would a reasonable person accepted the clause?
G. Tricks
a) If you can apply both, do that!
11
b) Choice of law travels with a case when it is transferred BUT if a new
party is joined in the transferee state the new choice of law provision
applies (Piper)
H. Underlying Policy considerations for choice of law
a) Discourage Forum Shopping
b) Equitable Administration of the law
c) Promote predictability and uniformity (Vertical)
d) Legal Realism: There is no universal law
VII.
Claim Preclusion from a prior case involving the same parties?
A. A final valid prior judgment on the merits in suit #1 bars absolutely
relitigation of the same claim (including issues that might have been brought)
between the same parties (or parties represented by them).
B. First check for dual mutuality and/or privity in the two cases
C. The judgment is substituted for the claim (merger if  wins in suit #1, bar if 
wins)
a) Raised as a motion for summary judgment
a) If CP not found still check for IP and precedent
D. Test, Was the first case:
a) Valid?
(1) DUE PROCESS most important here (was it achieved in the
prior case?), full and fairing hearing of the claim (especially for
arbitration/ADR cases)
(2) Notice and Service of process
(3) Subject matter jurisdiction
(4) Does not mean error-free, even an obviously erroneous prior
judgment is valid
b) Final?
(1) Poised for the execution of the judgment
(2) Mixed results on whether it is final if appeals can still be made
(Federal Courts says yes, but can be reopen under 60 (b) (5) or
stayed under 62)
c) On the merits
(1) Not dismissed on procedural defects
(2) Dismissal for 12 (b) (6) generally considered on the merits if
plaintiff had ample leave to amend the complaint
(3) Summary judgment, consent decree, and Default judgment,
failure to prosecute considered on the merits, for preclusion but
may be vacated for not being void
(4) Lack of venue, jurisdiction, and failure to join an indispensable
party are classical judgments not on the merits
(5) Settlement, voluntary dismissal usually not preclusive (except
when the judge approves a settlement)
(6) Arbitration, if it is court ordered then yes, but if not, maybe
not.
d) Bars absolutely
12
(1) Whole litigation
e) Between same parties or those in privity with them
(1) Historically
(a) Family – privity
(b) Business Associates -- privity
(c) Strangers – no privity
(2) Currently, Jurisdictions differ but require legal privity or
adequate representation
(a) Have control of the prior case from very early on when
decisions are made (Federal rule Gonzalez)
(b) Interests must be aligned (Hansberry v. Lee)
(c) Strangers – can have privity through virtual
representation
(3) Generally
(a) New , same  courts may allow it go forward
(b) Same , different  courts increasingly willing to
preclude 
f) One the same claim
(1) Jurisdictions differ, some tests include
(a) Transaction test (Federal test and in Restatement)
(i) Are the facts are related in time, space, origin,
or motivation, whether they form a convenient trial
unit
(ii) Need to join all the related claims or you lose
them
(iii)Same test for joinder, makes sense, whether you
had the “right” to make the claim earlier
(b) Will substantially the same evidence be used
(c) Is the same right/remedy being sought?
(d) Same cause of action (most narrow)
13
g) Including issue that might have been brought
(1) Make sure not prohibited by jurisdictional limitation
E. Exceptions
a) Parties agree to split claims
b) Court explicitly reserves ’s right to split
c) 1st court had subject matter limitations
d) Unfairness to  (legal right)
e) Substantive right for right to sue for intervening harm
f) Intervening law is NOT a grounds for relitigation
F. Tricks
a) Check if the first court had subject matter jurisdiction over the claim
b) Newly discovered claim barred in federal court if  would have
through proper legal and factual homework, previously discovered the
claim (Car Carriers)
c) Arbitration (Alexander)
a) Arbitration does not bar statutory right to trial if just a part of a
collective bargaining agreement according to Alexander (Title
VII), but may be judged differently today
(1) Arbitration interprets K, court interprets law
(2) But  can waive rights as part of voluntary settlement
d) Privity test: substantial control of the first litigation and virtual
representation, and the same lawyer is not enough (Gonzalez)
(1) No bright line for gauging substantial control, but
trying to join and being denied good indication that there
was no participation (Gonzalez)
e) Does not matter if the previous litigation wins on appeal, new claim is
precluded; Res Judicata should not give way to interests of public policy
or justice (Moitie)
f) Can always challenge a state preclusion law as in violation of Due
Process (Hansberry v. Lee)
g) Permissive joinder of claims becomes compulsory joinder when Res
Judicata is taken into account
h) However, if you could not bring the first claim because of subject
matter jurisdiction (a patent claim) will not be barred for the second suit
(§26)
i) Does not apply if the parties are different even if it is the same
transaction (3 separate suits for 3 car accident is totally cool)
G. Underlying policy considerations for claim preclusion
a) Parties have the right to one day in court
b) Parties secure in the knowledge that certain claims are extinguished
c) Prevents conflicting judgments
d) Promotes judicial efficiency by preventing relitigation after the parties
have had a full and fair opportunity
e) Don’t want to split into 2 lawsuits that could have been brought about
in the same action
f) Encourages competent litigation first time around
14
VIII.
Issue Preclusion from a case involving one of the parties?
A. A valid final judgment deciding an issue necessary to the decision bars raising
the same issue in a subsequent action as applied against a party to the previous
action (or someone in privity with it)
B. ONLY effects issues that were actually litigated (not also those that could
have)
C. Non-mutual -- Just one party needs to be the same (or privity). It binds
previous party and is option for other party.
D. File for a motion for summary judgment of partial summary judgment
a) If IP found, the particular issue is treated as decided and the case either
proceeds or terminates depending on the presence of other issues
b) If no IP is found, the suit proceeds, although the prior decision may
have precedent value
c) Usually privity, if relevant, asserted here
E. Test
a) Valid
(1) DUE PROCESS most important here (was it achieved
in the prior case?), full and fairing hearing of the claim, this
looms large for ADR/Administrative Hearings
(2) Notice and Service of process
(3) Subject matter jurisdiction
(4) Does not mean error-free, even an obviously erroneous
prior judgment is valid
b) Final
(1) Poised for the execution of the judgment
(2) Mixed results on whether it is final if appeals can still
be made (Federal Courts says yes, but can be reopen under
60 (b) (5) or stayed under 62)
(3) Same as CP except that finality is construed somewhat
broader to encompass judgments “firmly decided after
adequate hearing and deliberation”
c) Issue necessary to the judgment (Hoult)
(1) A but-for test
(2) Issue had to be decided in suit #1 (may be implicit per
Hoult)
(3) In addition, how the issue was decided must be clear
and unambiguous
(4) If a holding is based on alt. Grounds, none of the alt.
Grounds may be used for IP
d) Bars reopening
e) In subsequent action presenting the same issue
(1) The burden of proof must be equal or less in suit #2
(criminal court judgments against defendants will normally
hold in civil court but not vice versa)
f) As applied against the same party or party in privity with those
in the 1st action
15
(1) Again must meet the Hansberry v. Lee Standard
F. Non-mutual
a) Can only be used against a party which has already had their
day in court (full and fair opportunity standard)
(1) Defensively by a defendant
(a) 1 v 1 ( loses on issue A) → 1 v 2
(b) Precludes  from asserting issue A against 2
that  previously lost against 1
(i) But not if 1 v 1 ( loses on issue A)
→ 2 v 1 (2 has not had a day in court)
b) Offensively by a  (Parklane)
a) 1 v.  ( loses on issue A) → 2 v 
b) 2 is able to invoke CE to prevent  from litigating issue A
c) Permitted according to discretion of the court
(1) Discretionary factors against
(a) Discourage “wait and see” —increase in
litigation no incentive for consolidation, if a 
could have easily joined the original action
(b) Inequitable treatment – applying IP would be
unfair to  because of a incentive to defend in suit
#1, prior judgments in favor of the , or lack some
of the procedural opportunities in trial #2
(i) Jury trial v. judicial judgment is not a
sufficient procedural difference (Parklane
Hoisery)
(2) Discretionary factors to consider for use
(a) Efficiency
16
G. Non-Parties (differ state to state, held to due process standard)
a) Applies to a party when the had an opportunity to be heard in suit #1
through actual or virtual representation
a) Actual
(1) Co-owners of property
(2) Parties controlling the original representation
b) Virtual
(1) Interests were adequately represented in the first suit
(2) An implicit or express legal relationship usually
necessary
b) Broaden privity between non-parties for mass tort, consumer litigation
and contracts, narrow for family members
H. Is one suit in federal court and the other in state court?
a) Full Faith and Credit – Erie analysis federal court should treat
as preclusive if state court would too (McMurry)
b) Applies to actions brought under 1983 and encompass statecourt judgments or decisions be they civil or criminal (McCurry)
c) State court should also treat issues as if they were precluded in
federal court (?)
I. Consent decrees
a) 1991 Civil Rights Act -- Non-parties bound to a consent decree
when for discriminatory (overrules Martin)
(1) they had actual notice of likelihood of an adverse effect
(2) an opportunity to present objections
(3) their interests are adequately represented by another
person challenging the judgment on the same legal ground
(4) Privity interwoven with party joinder rules, intervention
rules, and definitions of class in class action
J. Tricks
a) Issue must be actually litigated and decided not just raised
b) Must be necessary to the first decision
(1) Liability alternate theories, neither is preclusive
(a) Reason, neither may have been necessary also
judicial economy, more incentive to appeal if there
is preclusion (federal)
17
(2) Ladder case (pg. 488 Glannon), find no liability all
other decisions of fault against the company are not
precluded
c) Generally should point out that a state’s issue preclusion can
differ than the federal preclusion law on what is precluded, what is
necessary, and who is precluded (McMurry)
d) Again, if a state’s issue preclusion doctrine seems too broad it
is limited by due process test of adequacy of representation
e) Issue preclusion not valid against the US gov’t (Mendoza)
K. Underlying policy considerations for issue preclusion
a) Efficiency
b) Reduce access to federal courts
c) Reduce ability for convicts to challenge conduct of police (McMurry)
18
IX. Was there proper notice?
A. Has the objection been raised properly?
a) 12 (b) (5) Must be objected to initial answer
B. Constitutional standard for notice:
a) “An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all circumstances, to apprise interested parties of the
pendency of the action and opportunity to present objections” (Mullane)
C. For civil action, notice is covered under service of process
D. For federal courts service of process covered under FRCP Rule 4
a) In hand to the individual
b) Or
a) his/her dwelling or usual place of abode
b) with someone of suitable age
c) residing there or
d) to agent authorized by law for service of process
c) OR the state law of service of process
d) Has it been waived?
a) Yes, Extra 40 days to file an answer.
b) No,  bears cost of notice
e) Person not subject to PJ in any state for in federal court under federal
question:
a) Once served or waived establishes persona jurisdiction in that
federal court
E. States each have there own requirements for service of process
F. FRCP and state courts must meet the Mullane standard of reasonably
calculated to give actual notice and enough time for interested parties to raise
objections given the circumstances (due process test)
G. Did party understand notice?
a) Objective v. Subjective Standard
H. Underlying policy goals of notice?
a) Due process, without notice, right to be heard is meaningless
X. Should additional claims and be added?
A. Should  join more claims?
a) Per rule 18, pretty much unlimited (no common transaction test)
B. Should the  make counterclaim (Rule 13)?
a) Compulsory Counterclaims if not asserted lose the right to litigate
later (Banque Indosuez)
a) Test
(1) Same Transaction (time, space) AND
(2) Does not require a 3rd party which court does not have
PJ
(3) No other pending case on the claim AND
(a) Efficient
19
(b) Res Judicata
(c) Reduces harassment
(d) Prevents double verdicts
b) Permissive Counterclaims not from the same transaction but related,
don’t lose the right to litigate if not asserted
C. Should  or  make a cross-claim against someone on their side of the suit?
a) Never compulsory cross-claim
XI. Should another  or  be added to the case? (Rule 14/19/20)?
a) Permissive Joinder (Rule 20)
a) Any  or  may join in action arising out of the same
transaction (same a claim preclusion) and there are common
questions of law and fact between all persons (Kedra)
(1)  must have a right of relief against any party it seeks
to join
b) But court may order separate trials under 42 to prevent
embarrassment, delay, or put to expense by inclusion (Kedra)
b) Joinder of Persons needed for adjudication (19)
a) Objection is 12 (b) (4)
b) Should be joined if (necessary party)?:
(1) Necessary for full relief
(2) They have an interest relating to the case and in their
absence
(a) Their ability to protect that interest may be
impaired
(b) Leave any of the existing parties subject to
substantial risk of inconsistent obligations because
of the 3rd party interest
20
c) But can’t be joined, if
(1) Subject Matter or venue would be defeated
(2) Personal Jurisdiction
(3) Immunity
(4) Unavailable/unable to locate
d) If can’t be joined, court decides whether the action should
continue or be dismissed (are they an indispensable party?),
considering
(1) Whether it would be prejudicial
(2) Extent to which prejudice can be lessened
(3) Whether judgment will be adequate
(4) Whether remedy will be available if dismissed
e) Exception to class actions
c) Does the party have a contribution liability?
a) Use Rule 14 to implead
(1) Not mandatory
(2) Does not defeat diversity unless  amends his claim
b) Even if the impleading leads to prejudice to the  this may be
defeated by efficiency (Gross v. Hanover Ins. Co.)
d) If a party fails under 20 common transaction test, should they
intervene (Rule 24)?
a) Intervention as a right
(1) US statute confers unconditional right to intervene
(2) Applicant claims interest relating to property or
transaction which is subject of the action and the
application is so situated that the disposition of the action
may as a practical matter impair or impede the applicant’s
ability to protect that interest
(a) Interest must be substantial but does not need to
be direct, as practical matter will the outcome effect
their interest (NRDC)
21
(3) UNLESS the applicant’s interest is adequately
represented by existing parties (adequate representation
may be disproved by simply showing that parties interests
may diverge at some point)
(4) Concern: Even if there was no Res Judicata there would
be stare decisis
(5) Burden of proof is on moving party to show the
representation would be inadequate
b) Permissive intervention (court has discretion to see whether
parties will be delayed or prejudiced and abuse of discretion is the
standard of review)
(1) Must be timely
(2) US statute confers conditional right to intervene
(3) Applicant claims or defense an main action have a
common question of law or fact
(4) When intervenor is a gov’t actor and subject matter of
suit is gov’t action
c) Tricks
(a) Even if claims take place over a long period of
time, if they are reasonably related they may arise
out the same transaction for the purposes of joinder
under rule 20 (Kedra)
(b) If other party still has the right to sue ,  can’t
try to dismiss for nonjoinder (Helzberg’s Diamond)
e) Underlying Policy considerations for joining claims and parties?
a) Judicial economy and convenience
22
XII.
Is a class action proper (Rule 23)?
A. Prerequisites
a) Numerosity AND
b) Commonality AND
c) Typicality AND
d) Adequacy of Representation AND
B. Additionally requires
a) Separate actions would create the risk of
a) Inconsistent adjudication
b) Deprivation of parties interests due to limited  funds OR
b) Injunctive/declaratory relief appropriate to class as a whole OR
c) Class Action is superior to alternative methods of resolution, interests
to consider (this type requires NOTICE an OPT-OUT)
a) Interest of class members to individually control litigation
AND
b) Extent and nature of litigation already commenced AND
c) Desirability of concentrating litigation AND
d) Difficulties in managing
C. Considerations
a) Numerosity
a) Sufficient parties to make individual lawsuits or joinder
impractical
b) Some courts have found 15-25 enough; other upward of 350
c) Practicality more important than numbers, can all the plaintiffs
just join?
b) Commonality
a) Identical to rule 20, same transaction test
b) Parties must show some issue of law or fact in common – 23
(b) (3) makes this requirement even more strict
c) Typicality
a) Representatives must be typical of the class
b) Can’t just name compelling cases
c) Blacks typically can’t represent whites
d) Adequacy of representation
a) Named ’s lawyer must be able to argue on behalf of unnamed
’s
b) Focus on lawyers
e) 23 (b) (1)
a) more than mere possibility that they will run out of funds but
something less than preponderance
b) Courts don’t use this for tort cases because there is no opt-out
f) 23 (b) (2)
a) Because you may be able to pay off a few guys
b) Ok, if some damages but injunction must be the primary claim
g) 23 (b) (3)
a) Not supposed to be used for mass torts but is anyways
23
(1) Notice is required and cannot be circumvented even if 6
million (Mullane is the standard)
(a)  bears all cost of notice
D. Quirks
a) Notice
a) Required for 23 (b)(3) but not for (1) or (2)
b) Personal Jurisdiction
a) Only required for name parties
c) Subject Matter Jurisdiction
a) For citizenship only look at the named ’s
b) For amount of controversy look at each individual  (§1367
run around)
d) Choice of Law
a) Look at each individual 
E. Issues with Class Actions
a) Conflicts within a class
a) Law and Rights
b) Remedy sought
c) Outside law
b) Conflicts between class and attorney
a) Lawyer’s interest is pay – client’s interest is winning
b) Ideological
c) Lawyer is repeat player – clients are one-time players
d) Bell article
c) It is constitutional to have a class action that binds the class members
to the class judgment, whether the prior action binds the class members
may be decided collaterally in a subsequent lawsuit and (3) without
adequate representation the class members are NOT bound (Hansberry v.
Lee) This sets the standard for commonality
d) Mere fact that the complaint alleges racial discrimination does not
itself ensure that party that brought the suit will be adequate representation
(Falcon)
e) Settlement
a) When settlement is imminent no need to consider trial
management as a consideration but the rest of the requirements still
need to be met (AmChem)
b) Must make sure it is still an adversarial dispute and it must be
justiciable
c) Must check against due process (Amchem)
d) Must be approved by the judge, and notice must be given to
class members
(1) Protects unnamed class members from unjust or unfair
settlements affecting their rights when the named ’s
become fainthearted before action is adjudicated or are able
24
to secure satisfaction of their individual claims by a
compromise
(2) Moment to examine adequacy of representation
f) Civil Rights cases
a) Civil Rights act of 1991 overturns Martin v. Wilks
(1) A consent Decree that resolves a discrimination claim
may not be challenged in a claim under Constitution of
Federal civil rights law by:
(a) A Person who, prior to entry of judgment or
order had
(i) Actual notice of the proposed judgment
(ii) Reasonable opportunity to object
(b) By a person whose interested were adequately
represented by another person who had previously
challenged the judgment on same legal grounds or
similar fact situation
25
g) Attorney’s fees
a) Attorney can accept a settlement which waives duty to pay
attorney’s fees if no provision to the contrary (Jeff D)
b) Attorney’s get fees for winnings of all ’s, regardless whether
they collect or not (Boeing Co.)
F. Tricks
a) Standard of review for class and settlement certification is
abuse of discretion
G. Underlying policy considerations for Class Action
a) Judicial Economy
b) Letting small ’s without a lot of money to aggregate their claims
XIII.
Will the case go before a jury?
A. Has the request for a jury been made in the complaint or answer?
a) If not, it is waived
B. Has the right to a jury been preserved in this type of case?
a) Right to jury applies to common law cases (damages), does not extend
to equity cases
a) Two part test:
(1) Compare statutory action to 18th century actions
brought prior to the law/equity merger
(2) Examine whether the remedy sought is legal or
equitable
b) Party cannot deprive other party of jury merely by taking
advantage by filing a suit first in equity (Beacon Theater & Dairy
Queen)
b) 7th amendment allows Congress to expand jury for any claim, but
cannot constrict
c) Does not violate amendment if Congress creates an administrative
agency to hear cases without a jury, even though they have don’t have the
lesser power to take cases away from jury in the courts
d) Right to sit on a jury
a) Jury pools primarily procured from voting lists, minorities
selected out
b) Jury Challenges
(1) For cause
(a) Unlimited
(2) Peremptory
(a) Usually Limited
(b) Due Process Test for discrimination
(Batson/Leesville)
26
(i) Party must convince judge of a
discriminatory pattern of preemptories to
establish a prima facie case
(ii) If a prima facie case exists, the burden of
proof shifts to the opposing party to prove
otherwise
(iii)If opposing party is successful, the
burden shifts back to the moving party to
show that the opposing party’s rationale is a
pretense
(c) Challenge can be made by a person of any
race/gender (Powers)
(i) Underscores the point that it is the right
of the perspective juror
(ii) Point is not that you do not have a right
to have jurors that look like you, it is that
racial discrimination undermines the whole
system
(d) Does not necessarily extend to language
(Hernandez)
(i) Goes to knowledge rather than race
27
C. Underlying policy considerations for juries
a) Participation in the system secures its legitimacy
b) Democracy
c) 12 heads as opposed to 1
XIV. Summary Judgment proper for any party?
A. Usually raised during or after discovery
B.  may raise at any time (though may be stayed until discovery is complete), 
must wait 20 days after suit is initiated
C. Question: Does the nonmovant party have any evidence to show there is a
genuine question of material fact (will they fail to meet their burden of
production)? Could a reasonable jury decide either way?
a) If not, should moving party win as a matter of law?
D. Once motion is made:
a) Harder for  to prevail, must make complete case against ,  only
has burden of production to show no question of material fact for one
element
b) Motions view in light most favorable to opposing party
E. Celotex/Anderson Standard (Federal Standard)
a) Movant needs only to point to ’s insufficiency of evidence to win,
production of affirmative evidence not required
b) However, if the moving party presents supporting evidence the nonmovant should not simply deny without any supporting affidavits of its
own
c) Burden of persuasion stays with party who has it at trial (usually 
except for affirmative defenses)
d) Look to whether evidence presented by non-movant would be
admissible in trial (Pretend that the fact-finding stage is over)
e)  has the same standard of proof required in the case (preponderance,
clear and convincing, etc.) I.E. Judge asks whether  will ever meet a
clear and convincing standard, this seems to be weighing persuasion of
evidence (Anderson)
a) Judge can say an economic model is wrong and thus judgment
will be given as a matter of law (Matisushi, appears to delving into
issues of fact)
F. Adickes standard (some states)
a) movant must foreclose the possibility that there is a material dispute of
fact, requires affirmative evidence (looks like  has burden of persuasion)
b) nonmovant just needs to show that they could have evidence that that
creates a dispute of material fact, evidence does not need to be admissible
a) Subtext: Don’t want to dismiss civil rights cases
G. Usually denied when
a) Reasonableness or states of mind in questions
b) Question of material fact exists
c) Credibility of witnesses in question
d) But can’t argue legislative intent as a dispute of fact
28
H. May be partial – for liability but hold trial for damages, certain facts may be
established
I. Often used for procedural points and contracts
J. Underlying policy considerations for Summary judgment
a) Burgeoning caseload
b) Diminished procedural means to weed out bad cases
XV.
Should the party win as a matter of law?
A. Has the party failed to plead or defend?
a) If so, opposing party wins by default
B. Has a 12 (b) (6) motion been made?
a) Have they failed to state a claim which relief will be granted?
b) Frivolous claim, consider Rule 11 Sanctions as well
C. After evidence has been presented, is Judgment as a matter of law proper
(Rule 50)?
a) Can be brought up 3 times
a) After ’s case (just the )
b) After both parties close
c) If brought before trial but denied, motion is made again within
10 days after verdict (provides judge buffer against appeal)
b) Question to ask: “is there no legally sufficient evidentiary basis for a
reasonable jury to find for the nonmoving party”
a) Federal standard legally sufficient: could a reasonable jury only
decide one way?
b) Other jurisdictions have other standards
c) Not deciding on sufficiency of evidence, instead looking whether jury
could be persuaded if it believed all of nonmovant’s evidence
29
XVI. On a specific issue, who has the burden of production and persuasion?
A. Generally  has burden of production and burden of persuasion
B. Burden of production and persuasion may be shifted to  for affirmative
defense/justification (Metzl)
C. This may differ based on substantive law, for title VII claim
a)  has initial burden of production and persuasion that (creates
rebutable presumption of racial discrimination)
a) He belongs to a minority
b)  applied and denied for the job in question
c) Rejection despite qualifications
d) Position remained open
b) Burden of production shifts to  to show a justification, burden of
persuasion stays with 
XVII. Is a new trial proper (Rule 50)?
A. Can be granted if
a) Prejudicial error in the trial process
b) Verdict against the weight of the evidence (judge evaluates evidence
including credibility of the witnesses)
B. Standard of review is de novo for (a) and abuse of discretion for (b)
C. Granting of new trial cannot be reviewed but denial cannot
D. Partial trials can be granted
E. Has there been a mistake, excusable neglect, newly discovered evidence,
fraud which can overturn the judgment (Rule 60)?
a) Excusable neglect Test (ISN)
a) 3 Disjunctive factors
(1) Whether defaulting party will be prejudiced
(2) Whether defaulting party has meritorious defense
(3) Whether culpable conduct of the defaulting party led to
the default
b) Intervening law may be sufficient for Rule 60 (b)
c) Means to get parties to negotiate (judge says he will reopen unless
opposing party reducing compensation)
XVIII. Was Due Process satisfied?
A. Mostly raised in:
a) Administrative agency hearing
b) Access to courts (including preclusion statutes)
c) Power of court issue remedies
B. Violation requires
a) State action
b) Deprives (even if only temporarily)
c) Of life, liberty, or property
d) Without due process of law
C. Procedural Analysis Matthews 3 part test:
a) Private Interests affected by gov’t action
30
b) Risk of an erroneous deprivation of such interest through the
procedure used and the probable value, if any, of additional substitute
safeguards
c) Government’s interest, including function involved and fiscal
administrative burdens or substitute required would entail
D. Statutory Analysis -- Two steps
a) Does the statute violate due process
b) Does the statute as applied in this case violate due process
E. What is the interest at stake?
a) Personal Liberty (Lassiter) AND Life (Goldberg) preferred over
property (Mathews)
F. Is a paper trial sufficient?
a) Does the evidence look more like medical evidence (Mathews) or
personal situation like welfare (Goldberg)?
G. Favored procedures (check to see if they are present)
a) Representation
b) Confront witnesses
c) Decisions based on rules
d) Neutral decisionmaker
e) Appeal
H. Replevin statutes authorizing ex parte attachment violate due process by
denying notice and hearing prior to attachment unless (Fuentes)
a) Seizure necessary to secure important public interest
b) Special need for prompt action
c) State keeps strict control over monopoly of legitimate force
d) Exigent circumstances (Doehr)
I. An otherwise constitutional fee may not be applied to indigent litigants where
court holds exclusive precondition to the adjustment of a fundamental human
relationship (Boddie/Little v. Streater)
J. Due process not triggered by action not attributable to state: Self-help
remedies do not trigger (Flagg)
K. Presumption of no right to counsel unless individual liberty is at stake;
Matthews test applied where no so such liberty is at stake (Lassiter)
L. State statute authorizing prejudgment attachment of real estate unrelated to
action without prior notice or hearing and without requiring a showing of exigent
circumstances did not satisfy due process requirements (Connecticut v. Doeher)
M. Denial of due process rights as per se injury does not warrant compensatory
damages, need to show an actual injury (Carey v. Phipus)
N. Underlying policy considerations for due process
a) Pro
a) Dignity
b) Participation
c) Effectuation – gives meaning to other rights
d) Detterence – constrain power of gov’t to carry out unfair
decisions
b) Con
31
a) Too expensive
b) May make agencies less likely to give benefits in the first place
XIX. What are the proper remedies?
A. Preliminary Relief
a) Needed prior to any preliminary relief to satisfy due process (Fuentes)
a) Advance notice
b) Hearing prior to deprivation
c) Hearing has to happen automatically, does not have to be
initiated by 
d) Meaningful hearing
e) Independent judge
f) Must be in front of the state
g) Evidence has to be more than one party and conclusory
B. Preliminary injunction test (same for temporary restraining orders)
a) No adequate remedy at law (Walgreen Co. v. Sara Creek)
b) Irreparable harm to  greater than harm to  if injunction not granted
c) Some likelihood of success on merits
d) Would not disserve public interest
e) Posner test (Probability of success at trial x harm to plaintiff >
probability of  winning x harm to defendant)
C. Rationale for preliminary injunctions
a) Prevent irreparable harm that cannot be compensated with money
b) Prevent  from becoming damage proof through shifting of assets
c) Prevent change or disposal of item in question
D. Collateral Bar rule -- petitioners who do not attempt to have an injunction
dissolved or modified, but instead deliberately violate the injunction are not
entitled to have the constitutional issues brought up during their violation hearing
(Walker v. City of Birmingham)
a) Compare with statute which can be violated and then
challenged on constitutional grounds
b) Exceptions
(1) No PJ
(2) Transparently invalid
E. Temporary restraining orders (extraordinary type of preliminary injunction)
a) Can be issue ex parte and some circumstances without notice
b) When should notice be waived (ex parte hearing)?
a) If time sensitive
b) If opposing party Is inaccessible or unknown
c) If notice itself would trigger the even sought to be prevented
d) Standard of review is abuse of discretion
F. Injunctions serve as property interest that may serve as basis for negotiation
for efficient breach
G. Courts reserve right to bind nonparties where necessary to enforce a legally
binding adjudication between parties properly before it (US v. Hall)
H. Policy justifications for injunctions
32
a) Pro:
a) Sometimes may be the most efficient solution
b) Sometimes may be the only solution
b) Con:
a) Hard to quantify
b) Anti-free market
I. Nominal damages
a) In absence of proof of actual injury (Piphus)
b) Trigger attorney’s fees
J. Punitive Damages
a) Final authority and review for punitive damages must rest with judge,
guidelines (Oberg), grossly excessive award of damages violates 14th
amendment due process
a) BMW Test
(1) How reprehensible is ’s conduct? (most important)
(2) Ratio of the award to the actual or potential harm
inflicted
(3) A comparison of the award to civil or criminal penalties
that could be imposed for comparable conduct
K. Attorney’s fees
a) American v. British Rule
a) American -- Each party pays its own legal fees
b) British – losing party pays both sides’ legal fees
b) How to determine
a) Lodestar approach
(1) Reasonable rate x hours (Rivera)
b) Do not need to be proportional to damage award (Rivera)
c) Not reduced simply because  failed to prevail on every
contention raised in the lawsuit (Rivera)
d) Check if limiting attorney’s fees would undermine
Congressional intent
c) Fee shifting statutes (§1988)
a) Fees go to substantially prevailing 
b) Permissible for settlement to exclude attorney’s fees in
contradiction of fee-shifting statute
d) Rule 68
a) Costs do include attorney’s ’s fees (Chesney)
b)  liable for costs and connect collect attorney’s fees if they
reject a settlement offer which turns out to be less than the
judgment
c) Theoretically allows 2-way shift (if counterclaims), but
generally applies to ’s settlement offers
d) Gets  to internalize costs
e) Encourages ’s to make reasonable offers
33
XX. Are the Pleadings, Dismissal Motions, Answers, Defenses, and Amendments all
proper?
A. Pleadings
a) Rule 7 describes the types
b) Rule 8 defines would should be in the complaint and the
answers/defenses (translation process)
a) In order to justify failure to respond to claim in answer,
respondent must provide good faith disclaim and representation of
both: (1) lack of knowledge (2) lack of information to form belief
(Sun Process Co. Inc)
c) State all your claims even if they are inconsistent
d) Rule 9 pleading special matters
e) Rule 10 – what the form of your pleading should look like
B. Answers
a) Rule 12
a) Answer within 20 or 60 days (if service of process waived)
b) The 12 (b)’s
(1) Lack of SMJ
(2) Lack of PJ
(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
(7) Failure to join a party under 19
C. Counter and Cross Claims
a) Compulsory counterclaim (Banque Indosuez)
a) Test
(1) Same Transaction AND
(2) Does not require a 3rd party which court does not have
PJ
(3) No other pending case on the claim AND
(a) Efficient
(b) Res Judicata
(c) Reduces harassment
(d) Prevents double verdicts
34
D. Amendments (Rule 15)
a) Can amend once anytime before answer or within 20 days if no
response permits, otherwise requires permission of court (when justice
requires) or written consent of the parties
b) Amendment to conform to evidence
c) Relation back of amendments to add a new party or claim, when
a) Permitted by law that provides applicable statute of limitations
b) Claim or defense arose out of the same transaction
c) Amendment is changing party or naming of party against who
claim is asserted if (2) is satisfied, where party to be brought in
(1) Has notice of action that party will not be prejudiced in
maintaining a defense
(2) Knew or should have known that, but for mistake
concerning identity would have been included
(a) To defeat SOL has to be a mistake, not just lack
of knowledge due to insufficient diligence
(Worthington)
(b) Cannot amend to add new parties after the SOL
has expired (Christopher v. Duffy)
35
d) Supplemental pleadings – upon motion may permit supplemental
pleading on events occurring after original pleading
E. Judicial Conference Rule 16
a) Sets up schedule and trial date
b) Requires judge to at least attempt a pre-trial settlement
XXI. Is there a Rule 11 violation?
A. Every pleading, motion, or paper must be signed
B. Signing means – Best of person’s knowledge, information, and belief formed
after reasonable inquiry under the circumstances that
a) Not being presented for any improper purpose (harass, delay, expense)
b) Claims or defense warranted by existing law or extension of law or
establishment of law
c) Allegations and factual contentions have evidentiary support or are
likely to have support after reasonable opportunity for investigation
d) Denials or factual contentions are warranted on evidence or are
reasonably based on lack of information or belief
C. If b) is violated court may impose sanctions (subject to provisions below)
a) Initiated
a) Motion
(1) Separate motion describing conduct in violation
(2) 21 day safe harbor rule allows offending party to
withdraw or correct
(3) Court may award prevailing party expenses and
attorney’s fees
(4) Law firm shall be held jointly responsible for lawyer’s
conduct
b) On Court’s Initiative
(1) Court may initiate and direct party to show cause why it
has not violated Rule 11 (b)
b) Nature of Sanction – Limited to what is sufficient to deter others from
same behavior (non-monetary, monetary penalty (paid to the court),
payment to movant of attorney’s fees and expenses incurred as part of the
violation)
a) Monetary Sanctions not allowed for violations of (b)(2)
b) For monetary sanction, court must issue order to show cause
before voluntary dismissal or settlement of the claims made by or
against sanctioned party
c) Order – Court shall describe conduct in violation and explain basis for
sanction
D. Tricks
a) Cannot file a Rule 11 violation 3 months after the case is dismissed
(Progress Federal Savings Bank)
36
XXII. What should Discovery entail?
A. 4 major methods
a) Document Request
b) Interrogatories (written questions)
c) Depositions
a) Oral
b) Written
d) Request for Admission
B. Rule 26 – requires some automatic disclosure
a) Names, damages, insurance
b) Expert
c) Pre-Trial
d) But can opt-out if both parties agree
e) Some items can be withheld if you have privilege (Hickman v. Taylor)
a) Work product of attorney is excluded except when good reason
is given to the necessity of the material
XXIII. International law
A. Basis
a) Treatises
b) Customary (predominantly Western)
c) International institutions
B. Similar to federal structure
C. International legal doctrines – jurisdictional legitimacy
a) Jurisdiction to prescribe – power to create law and norms (analgous to
Subject Matter Jurisdiction)
b) Jurisdiction to adjudicate (Personal Jurisdiction) – power to judge acts
against laws and norms
a) State may have jurisdiction to adjudicate, but not power to
prescribe (e.g., Spain and Pinochet)
c) Powers legitimate within borders, for nationals living abroad, acts
outside of borders than effect inside border
d) Comity – Respect coequal sovereign
D. Alternatives to federal prosecution of international law
a) Universal jurisdiction – concept that certain acts exist over which all
nations have jurisdiction whether acts committed by states or private
actors
b) Treaties
E. Three theories:
a) Extraterritorial application of U.S. law if act affecting U.S. citizens or
having a substantial effect within the U.S. Based on principles of
(1)territory (2)nationality of victim or offender (3) protection of national
interest, (4) custody of offender.
a) There is a strong presumption against extraterritorial
application of law.
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b) Presumption against extraterritorial application may be
overridden by an analysis of legislative intent and overriding
national interest.
b) Alien Tort Act sec 1350: Clear violation of international norms
creates its own jurisdiction
a) Foreign sovereign immunities act: cannot sue other nations.
Exceptions include commercial activity, direct effect, waiver.
c) Torture victim Protection act (§1331 Jurisdiction): can sue if conduct
under color of state law, even if by and against non-U.S citizens
F. Factors to be used in determining whether to apply US law:
a) National interest (including reciprocity)
b) Federal courts’ unwillingness to affect international politics
c) International law may be very complicated
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