REQUIREMENTS TO ESTABLISH PERSONAL JURISDICTION
1. State statute conferring personal jurisdiction to the courts up to or less than the
jurisdictional maximum.
2. Constitutional Jurisdictional Predicate [Due Process requirement]
3. Notice/Service of Process and Opportunity to Be Heard [Due Process requirement]
STATUTORY BASIS
Rule: Statute MUST confer personal jurisdiction; constitutional authority is not selfexecuting. Each state is free to determine how much or how little of the
constitutional power of personal jurisdiction to grant to its courts.
Types
- Traditional Bases
- Non-Residents
1. Non-Resident motorist statute
- Usually grants specific jurisdiction over claim arising from motor
vehicle crash.
2. Long-Arm Statute
- Grant specific jurisdiction (generally)
- Claim asserted against the nonresident must arise from something the
defendant did in (or having an effect in) the forum.
- Types of Long-Arm Statutes
1. Full extent permitted by Constitution
2. Laundry-list statute
Personal Jurisdiction in Federal System
- Whether a federal court in New York has personal jurisdiction over the defendant
is generally the same as whether a state court in New York will have personal
jurisdiction.
- Rule 4(k)(1)(A)
=> Permits personal jurisdiction when the defendant would be subject
to personal jurisdiction in a state court in the state in which the
federal court sits.
- Rule 4(k)(2) expands personal jurisdiction reach to the full extent of
subject matter jurisdiction
=> Claim asserted arises under federal law and there is no state court
anywhere that can exercise personal jurisdiction.
3 Types of Personal Jurisdictional Predicate
1. In Rem
- In Rem involves a dispute over the defendant’s property
- Valid only to the extent of the value of the property over which it has power.
2. Quasi In Rem
- Quasi-in-Rem is employed when dispute is unrelated to ownership of the
property.
- Valid only to the extent of the value of the property over which it has power.
3. In Personam
- Operates on the person of the defendant
- Plaintiff prefers in personam judgment to in rem and quasi-in-rem because
judgment is entitled to enforcement on property in other states under the
principles of full faith and credit.
IN PERSONAM JURISDICTION
Requirements to Establish Personal Jurisdiction
1. Jurisdictional Predicate
2. Notice/Service of Process and Opportunity to be heard
a. Personal Service is absolutely required for in personam cases
Traditional Bases of In Personam Jurisdiction
- Traditional Bases under Pennoyer
1. Residence
2. Domicile (actually established in Milliken)
- Person only has one domicile at a time.
o It is the state in which he is present and intends to make her
permanent home.
o A person retains her domicile until he acquires another one.
- Domicile of corporation is where it’s Incorporated (chartered) and its
Principle Place of Business.
3. Consent
1. Contract or agreement
2. Waiver/Lack of Objection
- If no objection to personal jurisdiction in a timely manner, then it’s
considered consent (he waived any objections) – timely objections are
controlled by Rule 12(b)(2), (g), and (h)(1).
3. Counterclaim/Contesting the Merits
4. Implied Consent
- Hess
-
4. Service of Process in State (Pennoyer + Burnham)
5. Service of Process to Agent in State
Effects of Shaffer and Burnham
=> “All assertions of state-court jurisdiction” must be assessed by International Shoe
- Service of Process: Split 4-4 in Burnham as to whether process alone is
sufficient (ie. whether Pennoyer applied or whether International Shoe
applied)
- Implied Consent (Hess)
- Hess upheld a nonresident motorist statute on the basis of implied
consent.
- If Shaffer really means that all cases must be assessed under Intl
Shoe then a nonresident motorist case might not be justified solely
on consent, but must be analyzed under minimum contacts, too.
=> But recall that International Shoe also says that the minimum contacts test was
intended to apply “if he is not present within the territory of the forum.”
Specific Jurisdiction
Statutes provide for specific jurisdiction
Jurisdiction that is created only for a claim that arises out of activity within the forum
Hess
Statute created in personam jurisdiction only for the crash
Jurisdictional predicate was Hess’ consent
Allowed to coerce consent because it can exclude someone from
entering state in a motor vehicle
Implied consent
It said you consent to receive service of process
General In Personam Jurisdiction
- General jurisdiction is appropriate when the defendant’s contacts are “continuous and
systematic”
- Defendant can be sued for a claim that arose anywhere in the world
- Claim is not limited to those that arise from contacts with the forum
- Process in-state is general jurisdiction
Alternative to Pennoyer: Minimum Contacts
International Shoe
Rule
Minimum Contacts + Fairness: “Due process requires only that … to subject a
defendant to a judgment in person, if he is not present within the territory of the
forum, he have certain minimum contacts with it such that the maintenance of the
suit does not offend traditional notions of fair play and substantial justice.”
=> Test applies to both people and corporations when they are not present; it’s an
alternative to physical presence.
Two-Part Analysis: 1. Minimum Contacts? 2. Comport with justice and fair play?
- Relevant contact is necessary before fairness can be assessed
- In assessing contact, there must be a purposeful availment and foreseeability
- Ties must result from D’s purposeful availment and render it foreseeable that
the defendant could be sued there.
- Especially strong showing of fairness might justify jurisdiction on a lesser
showing of contact, but some relevant contact is absolutely required.
Part I: Does D have minimum contacts with forum state?
=> Two Variables
1. Relatedness of Activities to Claim
a. Related?
b. Unrelated?
2. Level of Activity
a. Casual?
b. Or Continuous and Systematic?
=> Four Tests
1. Activities that are continuous and systematic and which give rise to the
cause of action sued upon are enough to subject the defendant to
jurisdiction of courts.
=> See International Shoe
2. Sporadic or casual activities of a defendant, or a single isolated act there,
are not enough to subject defendant to suit in the forum on unrelated
causes of action.
=> See Hanson v. Denckla
- Jurisdiction was impermissible when defendant’s contacts
with the forum were negligible and, more importantly, not
purposeful
- Example: Defendant lives in West Virginia, went to Hawaii
once on a vacation. Can he be sued in Hawaii for a claim
arising out of activity in WV? No.
3. Continuous and systematic activity may be enough (general jurisdiction)
to subject defendant within forum to jurisdiction on causes of action
unrelated to forum activity
- Supreme Court generally leaves this category to the state court’s
discretion to assert or forego jurisdiction
- General Jurisdiction:
=> When the continuous operations within a state are so
substantial and of such nature as to justify suit against it on
causes of action arising from dealings entirely distinct from
those activities.
=> Can be sued there for a claim that arose anywhere in the
world.
- Example: Ford can be sued in Michigan for a defect in a car built
in Mexico.
- Example: WV domiciliary can be sued in WV for tort committed
in Hawaii.
4. Sporadic activity, even a single event (ie. tort or breach of contract), may
be enough (specific jurisdiction) to subject defendant within forum
jurisdiction to claims arising out of that activity. Must assess “quality and
nature” of the activity.
- Hess v. Pawlowski
=> Non-resident motorists (people who injure someone within
the state) subject to jurisdiction in Massachusetts for tort
committed there
- McGee v. International Life Insurance Company
=> Only contacts with state were issuance of the insurance
policy sued upon to a state resident and its receipt of policy
premium payments from that resident.
=> Actually didn’t even really solicit the business. Acquired it
- Hustler Magazine
=> Jurisdiction can be established not only by the defendant’s
going to the forum and doing something there, but by her
intentionally causing an effect there.
=> Defamatory article published in jurisdiction caused
damage.
- Calder v. Jones
=> Jurisdiction can be established not only by the defendant’s
going to the forum and doing something there, but by her
intentionally causing an effect there.
Part II: Compatible with Traditional Notions of Fair Play and Justice?
Five Tests of Fairness:
1. Burden on the defendant
- SC calls this “a primary consideration”
- Asahi: Burden on defendant was severe: had to defend thousands
of miles from home in a court of a foreign country.
2. Forum state’s interest in adjudicating the dispute
-
As in McGee and Hess.
Asahi: no interest in adjudicating case between Japanese and
Taiwanese corps.
3. Plaintiff’s interest in obtaining convenient and effective relief
4. Interstate judicial system’s interest in obtaining the most efficient
resolution of controversies
- Hustler: Court said that it was efficient to have damages for
defamation received throughout the country recovered in one suit.
5. Shared interest of the several states in furthering fundamental substantive
social policies.
- “Fair play and substantial justice” is meant to protect defendant
from litigation in an inappropriate forum.
- Asahi: Interest in trying to keep American courts form
determining dispute between foreign corporations.
Burger King
1. Burden is on the defendant to demonstrate unfairness of forum
2. Mere inconvenience is not enough
- Defendant must show that litigation in the forum is “so gravely
difficult and inconvenient that a party is unfairly at a severe
disadvantage in comparison to his opponent.”
- Due process does not entitle defendant to the most convenient
forum, just one that is not egregiously inconvenient.
3. Relative wealth of parties is irrelevant
- Defendant who has purposefully derived commercial benefit
from his affiliations in a forum may not defeat jurisdiction
there simply because of his adversary’s greater wealth.
4. Contracts of adhesion are prima facie valid
- Absent misrepresentation or duress
Additional Requirements of Minimum Contacts
1. Relevant Contacts
=> Aiming your efforts at the jurisdiction. (Hustler or Hess). Causing damage there
is enough.
2. Purposeful Availment
=> Asahi (see below)
=> World Wide Volkswagon
- Purposeful Availment
- Regional seller and dealer did not have relevant contacts because they did
not purposefully avail themselves of any benefit in Oklahoma.
- Tie to Oklahoma is result of unilateral activities of plaintiffs
-
Plaintiffs drove their car into Oklahoma
Defendants did not reach out to Oklahoma
- Did not solicit business
- Did not have salespeople
- Did not regularly sell cars to Oklahoma residents
- Did not seek to serve the OK market
- Not even clear that any car they sold other than the one had
ever been to Oklahoma
=> Hanson v. Denckla
- Pennsylvania woman set up trust with Delaware bank. She moved to
Florida and continued to receive periodic interest payments and issued
occasional orders to Delaware bank from there. Is DE bank subject to in
personam jurisdiction in Florida? No.
=> Did not purposefully avail itself.
=> Its ties were caused by Mrs. Donner’s moving there.
- “Unilateral activity of those who claim some relationship with a
nonresident cannot satisfy the requirement of contact with the forum
state.”
3. Foreseeability
- World Wide Volkswagon
- Foreseeability that matters is that “defendant’s conduct and connection
with the forum state are such that he should reasonably anticipate being
haled into court there.
- Does not matter that is foreseeable that an action of his might create a
contact with Oklahoma.
Stream of Commerce
- Situation
=> Defendant manufactures something in state A and sends it to state B. Someone in
state B sends it to state C, where the thing malfunctions and injures plaintiff. Can
D be sued in state C?
- “No” Argument: Defendant did not reach out to state C; the thing got to
state C only because of the unilateral act of a third party. Thus, there is no
purposeful availment by defendant of state C. (ie. World Wide
Volkswagon and Hanson)
- “Yes” Argument: Defendant probably makes money from the resale by
the person in state B into state C. If person in state B did not or could not
send the thing to state C, defendant would not sell as many of these things.
Therefore, arguably, the defendant at least indirectly availed herself of the
market of State C.
=> Foreseeability test of World Wide Volkswagon
- Relevant test is not that the product’s getting to the forum is foreseeable
- Must be foreseeable that the defendant would get sued there by virtue
- Court rejected idea that amenability to suit should travel with product
- Asahi Metal Industry
- Fairness holding.
- All 8 justices agreed that it would be unfair to bring Asahi in
- Only case in which SC has rejected personal jurisdiction on the basis of
fairness.
1. Dispute is between Taiwanese corporation and Japanese
corporation in which California would have no discernible interest.
2. Burden on Asahi is great
3. Interest in not adjudicating cases between foreign corporations
- Split decision on what constitutes a relevant contact in the stream-of-commerce
fact pattern. No holding here, so two competing opinions.
1. O’Connor Theory
- Merely putting a product into the stream of commerce, even with
the knowledge that it will get to the forum is not enough.
Purposeful availment requires “additional conduct” that indicates
“an intent or purpose to serve the market in the forum state.”
- Types of Additional Conduct
- Designing products for forum-state market
- Advertising
- Marketing through a distributor into the forum
- Channels for giving advice to customers in the forum
2. Brennan Theory
- So long as the defendant places a product in the stream of
commerce and is aware that the final product is being marketed in
the forum state, the possibility of a lawsuit there cannot come as a
surprise.
- Nor would the litigation impose a burden for which there was no
benefit.
- Concurring judge, Stevens, was “inclined” to think that there was
relevant contact.
Tag Jurisdiction
Burnham (Divorce case)
- Split decision on whether service of process in state is sufficient outside of minimum
contacts.
1. Scalia says, based on tradition, it’s enough; International Shoe and Pennoyer
may coexist
2. Brennan says it must comport with International Shoe tests, such that there
exists minimum contacts
- Brennan says that any transient defendant avails herself of “significant
benefits provided by the state.”
- So in most cases they agree.
Internet
Zippo
Rule
Courts employ a “sliding scale” test, under which “the likelihood
that personal jurisdiction can be constitutionally exercised is
directly proportionate to the nature and quality of commercial
activity that an entity conducts over the internet.”
1. Active Websites
General Rule: Jurisdiction is almost always proper. Maintaining a
website in state A can establish a relevant contact with state B,
if there is interaction with persons in state B.
=> Defendant engages in activities such as transmitting files to
the forum state over the Internet or entering contracts with
residents of the forum.
2. Passive Websites
General Rule: Rarely grounds for assertion of personal
jurisdiction.
=> These are websites from which a user can send or receive
information
3. Interactive Websites
General Rule: Depends on the degree of the contacts.
=> These are websites from which a user can send or receive
information
-
IN REM JURISDICTION
Rule (from Shaffer (DE Greyhound shareholder case))
1. “All assertions of state-court jurisdiction must be evaluated according to the standards set
forth in International Shoe and its progeny.”
2. “When claims to the property itself are the source of the underlying controversy, it would
be unusual for the state where the property is located not to have jurisdiction.”
- So not necessarily the case, though
- Would be the case if defendant’s claim to the property indicated that she expected
to benefit from the state’s protection of her interest.
-
So the state would have a strong interest in assuring that the property is
marketable and that the dispute is resolved peacefully.
3. Thus, with in rem cases, the presence of the property in the forum probably satisfies the
requirement that the defendant meet the International Shoe Test.
QUASI-IN-REM JURISDICTION
Rule (from Shaffer)
1. “All assertions of state-court jurisdiction must be evaluated according to the standards set
forth in International Shoe and its progeny.”
2. “Presence of property may also favor jurisdiction in cases … where the defendant’s
ownership of the property is conceded but the cause of action is otherwise related to
rights and duties growing out of that ownership”
- This applies to situations in which the property caused the injury to the plaintiff.
- So, like, when someone is renting property and tiles fall from the ceiling and hit
them.
3. Adjudication of status, such as marriage and divorce, might also fall under here (Shaffer)
Holding of Shaffer
- Delaware could not have jurisdiction simply by seizing property (shares of stock) owned
by the defendants in Delaware.
- Rather there must be a showing that the defendant’s contacts with Delaware satisfy the
International Shoe standard.
SERVICE OF PROCESS
Two Issues:
1. Whether a rule or statute prescribes a method for giving notice and an opportunity to
be heard.
2. Constitutionality of the rule or method.
- Proper service of process includes two components
1. Notice
2. Opportunity to be heard.
=> Instructions to defendant as to when and how she must respond
in order to avoid entry of default judgment.
Rule 4: Service of Process
4(a) – Required Contents of the Summons in Federal Court
4(c) – Who Can Serve Someone and How: Anyone over 18 who isn’t a party
4(d) – Waiving Service
-
Does not allow service of process by mail; it is a provision by which the
defendant waives the requirement for formal service of process on him.
4(e) – Serving a Person within the US
- Include copies of summons and complaint
- Can serve anywhere
4(f) – Serving Outside of the US
4(h) – Corporations/Businesses
4(l) – Proof of Service: file server must make proof of service by affidavit
4(m) – Time Requirements for Service
Constitutional Standard for Notice
General Rule
- Due Process clause provides that individuals whose property interests (money
included) are at stake are entitled to “notice and an opportunity to be heard”
Mullane
Rule
1. Notice reasonably calculated, under all the circumstances, to appraise
interested parties of the action and afford them an opportunity to present their
objections.
- Notice by publication is permissible for some.
2. Notice must be of such nature as reasonably to covey the required
information, and it must afford a reasonable time for those interested to make
their appearance.
3. When notice is a person’s due, process which is a mere gesture is not due
process. The means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it.
4. Notice reasonably certain to reach most of those interested in objecting is
likely to safeguard the interests of all, since any objections sustained would
inure the benefits of all. Under such circumstances, reasonable risks that
notice might not actually reach every beneficiary are justifiable.
5. Formal, individual service of process is not necessary; delivery by regular
mail was sufficient.
Holding
Group 1
- For those “whose interests or whereabouts could not with due
diligence be ascertained,” notice by publication was not a mere
gesture.
- They were bound by the judgment ever though they were not given
individual notice.
Group 2
-
-
For those whose whereabouts were not known in the ordinary course
of business and which were conjectural or “could be discovered upon
investigation” and at some expense could be notified by publication,
notice by publication was sufficient.
Practical difficulties and costs of frequent investigations into the status
of great numbers of beneficiaries would be too great.
Group 3
- For those “known present beneficiaries of known place and residence”
notice by publication was not “reasonably calculated to reach those
who could easily be informed by other means at hand.”
- No excuse for failing to give individual notice.
Remember, though: Notice reasonably certain to reach MOST of those interested in
objecting is likely to safeguard the interests of all, since any objection sustained
would inure to the benefit of all.
- Notice under Mullane would still be inadequate even if it was provable that everyone
actually read it, because it wasn’t reasonably calculated under the circumstances.
- Here, Court does not necessarily require that defendant actually receive the notice
Dusenberry
- As in Mullane, Court does not require that defendant actually receive the notice
- Due process does not require that the government “must provide actual notice”;
rather, it requires “that it must attempt to provide actual notice”
- Minimum requirement is that notice be sent by certified mail
- Emphasized the burden that a requirement of actual notice would place on the
government.
Subsequent Decisions
- Court has held that notice by publication in local newspaper [Walker v. City of
Hutchinson] and local publication plus postings on a tree [Schroeder v. City of New
York] does not meet due process requirements when names and addresses are known
or ascertainable from public record
Mennonite Board of Missions
- Notice by publication and posting does not provide mortgagee adequate notice of a
proceeding to sell the mortgaged property
- Posting could get torn down; probably won’t get notice by publication.
- When the mortgagee is identified in a mortgage that is publicly recorded, constructive
notice by publication must be supplemented by notice mailed to the mortagee’s last
known available address, or by personal service.
!!!!!LOOK UP JONES!!!!
OPPORTUNITY TO BE HEARD
Rule 12(a)
- Time to Serve a Responsive Pleading
- 12(a): Defendant has at least 20 days to respond either by answering or bringing
a motion.
- 6(b): If defendant needs more time to respond, she may make a motion
General Problem
- When plaintiff seeks to have defendant’s property seized before the dispute is resolved on
the merits.
=> “Garnishment” = seizure of wages; creditors might want to garnish the wages of a
debtor
=> “Replevin” = seller of goods seeks to recover the goods or to recover their cash
equivalent
Rationale P:
1. Buyer may destroy the property
2. Buyer may run away with it.
3. Property may simply become less valuable
Rationale D:
- Buyer wants a chance to present defenses, to explain why she has
not paid for the goods. (maybe it’s defective, or maybe she has in
fact paid fully for it)
Rule
- A temporary, nonfinal deprivation of property is nonetheless a “deprivation” in the terms
of the Fourteenth Amendment. (Fuentes)
=> Replevin statutes that permitted seller to seize property before the court held a
hearing on the merits of the dispute (FL statute) or without requiring a hearing at
all (PA statute).
=> Permission that party may post bond is not sufficient;
Exception
- There are extraordinary situations that justify postponing notice and opportunity to be
heard.
- Three Tests
1. Seizure has been directly necessary to secure an important governmental or
general public interest.
- FL and PA statutes serve only private interest, not public ones
2. Special need for very prompt action
- Statutes don’t limit summary seizure of goods to special situation
3. State has kept strict control over its monopoly of legitimate force
-
-
FL and PA abdicate effective state control over state power; may
unilaterally invoke state power to replevy goods; no state official
participates in decision to seek a writ.
- Examples of Exceptions
1. To collect internal revenue of US
2. To meet the needs of a national war effort
3. To protect against economic disaster of bank failure
4. To protect the public from misbranded drugs and contaminated food.
Permissible Louisiana Statute (Mitchell v. W.T. Grant Company)
1. Permitted pre-hearing seizure of property when the plaintiff feared the defendant
might remove or injure the property in the interim and where the seizure of the
property was issued by a judge.
2. Plaintiff is required to set forth valid reasons for sequestration under oath and in
detail, rather than by simple conclusory statements
3. Plaintiff must have an ownership interest in the property
4. Plaintiff had to post a bond, too, in order to protect the debtor from damage it
might have incurred.
5. Defendant could get property back pre-trial by posing a bond
Additional Notes
1. Garnishing wages of a creditor before any hearing on the merits of the creditor’s claim is
unconstitutional. (Sniadach)
2. The hearing “must be tailored to the capacities of the circumstances of those who are to
be heard.” (Goldberg)
=> The recipient of government-funded public assistance is entitled to “the
opportunity for an evidentiary hearing prior to the termination” of benefits.
VENUE AND TRANSFER
Venue Rules in Federal Court
- 28 U.S.C. § 1391: Venue Generally
a. Diversity-Jurisdiction Only
i. Where any of defendants reside (if all live in same state)
ii. Where substantial part of the events giving rise to the claim occurred
iii. Where any defendant is subject to personal jurisdiction, if it can’t be
brought anywhere else [fall-back provision only]
=> Must involve a claim that arose entirely outside the United States.
Why? Because if any substantial part of the claim arose
somewhere in the US there will be a federal district that satisfies
1391(a)(2) or (b)(2).
b. Not Just Diversity
i. Where any of defendants reside (if all live in same state)
ii. Where substantial part of the events giving rise to the claim occurred
iii. Where any defendant can be found, if it can’t be brought elsewhere [fallback provision only]
=> Must involve a claim that arose entirely outside the United States.
Why? Because if any substantial part of the claim arose
somewhere in the US there will be a federal district that satisfies
1391(a)(2) or (b)(2).
c. Corporations
i. Deemed to reside wherever personal jurisdiction exists over it
d. Aliens
i. Can be sued anywhere
e. USA
f. Foreign States
g. Subject-Matter Jurisdiction (!)
i. Where any defendant resides
ii. Where a substantial part of the accident giving rise to the action took place
[Does not apply to removal cases]
-
-
28 U.S.C. § 1404: Transfer/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.
28 U.S.C. § 1406: Court’s Actions when Case is Filed in Wrong Venue
(a): Dismiss case or transfer it to any district or division where it could have been
brought
(b): If party doesn’t object to venue in sufficient, timely manner, then “nothing
impairs the jurisdiction of the district court” in these cases.
=> Case filed in an improper court is subject to dismissal under 12(b)(3).
Venue in State Courts
General Principles
- Most state codes make provisions for the place of trial in local actions. Just look at state
rule.
- Transfer can only occur within a court system
1. Cannot transfer from state court in state A to a state court in state B.
2. Cannot transfer from state to federal and vice versa
-
=> Exception: Wherever removal jurisdiction applies.
3. Within federal system, state lines are irrelevant.
Transferee court takes case over at present stage; doesn’t start litigation all over again
Common themes
1. Subject of action took place
2. Cause of action arose
3. Some fact related to, but no part of, the cause of action is present or happened: for
the convenience of the parties
4. Where defendant resides.
5. Where defendant does business
6. Where defendant has an office or place of business
7. Where plaintiff resides
8. Where plaintiff does business
9. Where defendant may be found
10. Where defendant may be summoned or served.
Venue and Transfer of Venue in Federal Courts
Rule (Hoffman v. Blaski)
- Transferee court must be a proper venue and it must have personal jurisdiction over the
defendant.
- Requirements of venue and personal jurisdiction must be met independently without
waiver of objection by defendant
- Transferor court may have neither personal jurisdiction or proper venue to transfer
(Goldlawr)
Rules
- Transfer can only occur within a court system
3. Cannot transfer from state court in state A to a state court in state B.
4. Cannot transfer from state to federal and vice versa
=> Exception: Wherever removal jurisdiction applies.
3. Within federal system, state lines are irrelevant.
- Transferee court takes case over at present stage; doesn’t start litigation all over again
- No time requirement to motion to transfer; but as a practical matter, courts are unlikely to
order transfer after having invested time and resources in the matter.
Which Statute Applies?
- 1404 applies when transferor court is a proper venue.
=> Does not permit dismissal
- 1406 applies when transferor is an improper venue.
=> May be dismissed under 12(b)(3)
-
So must determine if court in which it was filed is a proper venue
=> Proper if 1391 applies
- Venue in Removed Cases
- 1391 does not apply to removed cases
- Venue is proper under 28 U.S.C. 1441(a) only in the federal district embracing the
state court in which the case was filed.
- Proper Venue but No Personal Jurisdiction?
- In a case removed from state to federal court, venue is proper in the
district embracing the state court in which the case was filed. If the
defendant is not subject to personal jurisdiction there, we would then have
the problem of no personal jurisdiction but proper venue.
1404(a)
- Any party may move to transfer
- Moving party bears the burden of showing that transfer is warranted
- Court exercises its discretion where a different place makes more sense than the present
venue.
=> Transfer is an exception, not the rule.
- Factors court considers in transfer
1. Plaintiff’s choice of venue is given considerable weight
2. Where the relevant events took place
3. Where one court could compel attendance of witnesses more readily
4. Where evidence and witnesses are located
5. Relative court docket loads
6. Familiarity with applicable
7. Forum selection clause?
 Not automatically dispositive, though. (Stewart Organization v. Ricoh)
1406(a)
- Court has choice to transfer or dismiss; transfer is usually better because then parties
don’t have to refile claim.
FORUM NON CONVENIENS
Principle
- Transferee court may resist imposition upon its jurisdiction even when jurisdiction is
authorized by general venue statute.
Rationale
- Plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most
inconvenient place for an adversary, even at some inconvenience to himself.
Rule/Effect
- Case gets dismissed even though the forum is appropriate because there exists one that is
far more appropriate.
-
A case is not transferred
Court dismisses because it cannot transfer. It cannot transfer because the more
appropriate court is in a different judicial system.
=> Cases can only be transferred within a judicial system
Piper Aircraft Rule
- Court weighs several factors in determining if alternative forum is clearly more
appropriate.
- Public Interest Factors
1. Administrative difficulties of keeping the case
2. Local interest in having localized controversies decided at home
3. Desire to have a case tried in a forum well versed on the law it will apply
4. Avoiding undue burdens with conflict of laws or in the application of foreign law
5. Unfairness of burdening citizens with jury duty in a case unrelated to the forum.
- Private Interest Factors
1. Relative ease of access to evidence
2. Ability to compel attendance of witnesses at trial through subpoena
3. Expense of obtaining attendance of willing witnesses
4. Desire to avoid piecemeal litigation (not an express factor, but one of the
considerations in Piper)
- Weight of Disadvantageousness of Change of Law
1. Only if the remedy provided by the alternative forum is so clearly inadequate or
unsatisfactory that it is no remedy at all should the unfavorable change in
applicable law be given substantial weight. (In Piper, court held that no jury trial
and less generous tort laws weren’t so inadequate)
- Conditional transfer
- In Piper, defendants stipulated that they wouldn’t object to the personal
jurisdiction of Scottish courts; they waived statute of limitations defense; and they
allowed American-style discovery
SUBJECT MATTER JURISDICTION
Original Jurisdiction
- Cases filed and decided by trial courts
Concurrent Subject Matter Jurisdiction
- Cases that can be heard either by a federal or a state court
State Courts
- General Subject Matter Jurisdiction
=> They can hear any cognizable claim at all, except over cases in which federal
courts have exclusive subject matter jurisdiction (antitrust, bankruptcy, etc.)
Federal Courts
- Limited Subject Matter Jurisdiction
=> Can only hear specific types of cases
- Parties cannot consent to jurisdiction of federal courts
=> Presumption against federal jurisdiction
DIVERSITY JURISDICTION
28 U.S.C. § 1332
a. Federal courts have original jurisdiction of all actions where the matter in controversy
exceeds $75,000 and is between:
1. Citizens of different states
2. Citizens of a state and citizens of a foreign state
3. Citizens of different States and in which citizens or subjects of a foreign state
are additional parties.
c. Corporations are citizens of any state in which they are incorporated or have their
principle place of business
e. “States” includes DC, PR, and Territories
[Permanent resident aliens are deemed to be a citizen of the state in which they
permanently reside] … Therefore, jurisdiction appears to be defeated in these cases.
Complete Diversity Rule: Every plaintiff must be of diverse citizenship from every defendant.
=> When a case violates the complete diversity rule it cannot invoke diversity jurisdiction as
presently packaged.
=> Plaintiff may amend to drop nondiverse parties and structure the case so as to invoke
diversity of citizenship.
- Federal courts disregard nominal or formal parties to the action, and determine
jurisdiction based solely upon the citizenship of the real parties to the controversy. A
nominal or formal party is one who, in a genuine legal sense, has no interest in the result
of the suit, or no actual interest or control over the subject matter of the litigation. (Pete
Rose case)
How to Determine Citizenship of People
- Specifically citizenship
=> Not diversity of “residence” or “domicile” or where the litigant is “from”
- Diverse citizenship must be present at the time the complaint is filed. Jurisdiction is
unaffected by subsequent changes in citizenship.
Defining State Citizenship
- In order to be a citizen of a state, one must be:
(1) Citizen of the United States, and
(2) Domiciled in that State.
Defining “Domicile”
1. A person’s domicile is his true, fixed, and permanent home and principle
establishment, and to which he has the intention of returning whenever he is absent
therefrom.
2. Change of domicile may be effected only by a combination of two elements:
a. Taking up residence in a different state, and
b. Having the intention to remain there.
Determining Domicile
- Though one’s domicile has a subjective character, courts use objective evidence to
infer one’s subjective intent
- Court discerns intent from a “grab-bag” of evidence
- Voter registration
- Qualification to pay in-state tuition
- Car registration
- Location of bank accounts
- Where one pays real and personal property taxes
Rules on Domicile
- People have only one domicile at a time; therefore, for diversity purposes, people can
be a citizen of only one state at a time.
- One’s domicile stays with him until he changes it.
- Children are given domicile of parents
- Federal courts do not have subject matter jurisdiction over cases involving alien on
alien. Not permitted by the constitution. (Article 3, section 2)
- US citizen who establishes domicile in foreign country cannot sue in federal courts
based on diversity jurisdiction. She isn’t an alien, and she doesn’t have a domicile in
the US. Can only sue on other grounds.
- See the notes on p. 258-260 for examples of unique citizenship circumstances.
Diversity Jurisdiction of Businesses
- Every business is either (1) a corporation or (2) is not a corporation.
1. Businesses that are corporations are treated as discrete entities under 1332(c)
2. The citizenship of businesses that are not corporations is assessed by looking to
the individual members of the business.
-
-
If a law firm has partners who are citizens of NY, NJ, FL, and PA, then
the law firm is deemed to be a citizen of NY, NJ, FL, and PA for diversity
purposes.
1332(c)(1): A corporation is a citizen of any state in which it is incorporated and the state
in which it has its “principal place of business.”
Tests of Principal Place of Business
1. Nerve Center Test
=> The locus of corporate decision-making authority and overall
control constitutes a corporation’s principal place of business for
diversity purposes
2. Corporate Activities/Operating Assets Test
=> Greater weight is attached to the location of a corporation’s
production or service activities in determining the corporation’s
principal place of business for diversity purposes.
3. Total Activity Test
=> Hybrid of the “Nerve Center” and “Corporate Activities” tests. It
considers all the circumstances surrounding a corporation’s
business to discern its principal place of business.
Amount in Controversy
Basic Rules
1. Amount in controversy must exceed $75,000
2. It must be “exclusive of interests and costs”
- Costs are all expenses of litigation except attorney’s fees such as filing fees,
expert witness fees, etc. These are not
- Attorney’s fees, if permitted under an exception to the American Rule, can be
included.
3. Plaintiff’s ultimate recovery is irrelevant; what matters is what is claimed initially.
4. If plaintiff ultimately recovers less than $75,000, 1332(b) provides that the plaintiff
may not recover her costs from the defendant and, indeed, that the plaintiff may have
to pay the defendant’s costs. Does not require costs against plaintiff, though,
- Deals only with costs, not attorney’s fees
5. The sum claimed by the plaintiff controls if the claim is apparently made in good
faith. It must appear to a legal certainty that the claim is really for less than the
jurisdictional amount to justify a dismissal.
- Court must afford the plaintiff an appropriate and reasonable opportunity to
show good faith in believing that a recovery in excess of the jurisdictional
amount is reasonably possible
Aggregation Problems
1. If the case involves a single plaintiff suing a single defendant, the plaintiff can
aggregate as many claims as she has to satisfy the amount requirement.
2. If there are multiple parties on either side of the case, parties cannot aggregate
separate and distinct claims.
3. Exception (to 2): Multiple parties may aggregate claims if the claims are “joint” or
indivisible.
- Issue is whether the liability of multiple defendants or the rights of multiple
plaintiffs is “joint” as opposed to “several”.
- P1 and P2 claim ownership over an $80,000 piece of property that D claims
ownership of. This satisfies the amount in controversy.
4. If one has a claim against parties who can be jointly and severally liable (A and B
both beat up C) up to an amount that exceeds $75,000, they can both be brought to
federal court.
5. Value of defendant’s counterclaim against the plaintiff can be included in
determining whether the plaintiff’s claim meets the jurisdictional amount
requirement. (Horton v. Liberty Mutual) Not all courts have absolutely followed this
reading though.
FEDERAL QUESTION JURISDICTION
28 U.S.C. 1331: Federal Questions
- Cases “arising under” a federal law may be filed in federal court.
- Any claim asserted under 1331 may, at the plaintiff’s option, be asserted in state
court first.
- Except for those over which federal court has exclusive jurisdiction, such
as antitrust and bankruptcy cases.
Determining What “Arises Under” Federal Law
1. Well-Pleaded Complaint Rule
1. Court looks only to the plaintiff’s complaint.
=> Defendant’s assertions of defenses do not matter.
=> Defendant’s counterclaims do not matter.
2. Only the “well-pleaded” portions of the complaint are considered.
- “Well-pleaded” refers to only those portions of the complaint that support
the plaintiff’s claim.
- The claim itself must be based upon federal law.
-
To determine this, see whether plaintiff is trying to vindicate some
right given by federal law.
- Materials that do not relate to the claim are not considered.
- An anticipated defense is not part of a well-pleaded complaint.
- For example, if the plaintiff’s complaint anticipates that the defendant
might raise a particular defense and attempts to rebut it in advance, such
allegations are ignored in assessing federal question jurisdiction because
they do not relate to the plaintiff’s claim itself.
Example: Louisville & Nashville Railroad
- Plaintiff’s complaint contains the following:
(1) We have a contract with the railroad, pursuant to which we are to get
free passage.
(2) The railroad refuses to honor the pass, despite our full compliance with
everything we were supposed to do.
(3) We think the railroad is going to assert that this new federal statute
precludes it from continuing to honor our pass;
(4) But we think the statute does not apply to us;
(5) And if the statute does apply to us, it violates our constitutional rights
by depriving us of property without just compensation.
- Supreme Court refused to address issues 4 and 5 because the case did not fall
within 1331.
=> Federal trial court had no federal question jurisdiction over the case and, thus,
the judgment entered by that court was void.
- Why? Because of the well-pleaded complaint rule.
- Only issues (1) and (2) were part of their claim against the railroad.
And those dealt with state law only for breach of contract.
2. Centrality of Federal Issue
- State-created claim can invoke federal question jurisdiction if:
a. Case necessarily raises federal issue
b. Federal issue is actually disputed and substantial
c. Federal jurisdiction will not disturb any congressionally approved balance of
federal and state judicial responsibilities.
SUPPLEMENTAL JURISDICTION
28 U.S.C. § 1367
(a) Grants supplemental jurisdiction
(b) Withdraws supplemental jurisdiction in certain diversity cases
(c) Congress’ effort codify the discretionary factors
(d) Stops the running of the statute of limitations in certain instances
(e) Defines “state”
Discussion of § 1367
(a) - Grants supplemental jurisdiction in broadest possible terms up to the full extent of
Article III of the constitution
- Codifies the common nucleus test
- Grants supplemental jurisdiction over all claims asserted in a federal civil action if
they share a common nucleus of operative fact with the claim that invoked federal
subject matter jurisdiction.
- Last sentence indicates that it includes claims that involve additional parties
(b) -
-
(c) -
-
(d) -
-
Applies to three categories of people (plaintiffs only!)
1. “Claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24
of the Federal Rules”
2. “Claims by persons proposed to be joined as plaintiffs under Rule 19”
3. Claims by persons “seeking to intervene as plaintiffs under Rule 24”
Thus, if a defendant (or person joined on defendant’s side) in a diversity case asserted
claims satisfying 1367(a) supplemental jurisdiction will be invoked
Federal courts may decline to allow supplemental jurisdiction if:
1. Novel or complex issue of state law
2. State law claim predominates over that which invoked subject matter
jurisdiction
3. Court has dismissed all claims over which it has original jurisdiction
4. Exceptional circumstances
Unclear the extent to which courts will apply discretion, but can always say
something might be an exceptional circumstance
Tolling of statute of limitations means to arrest or stop it from running
Only applies to claims which get dismissed and which are asserted under subsection a
=> A claim that does not properly invoke supplemental jurisdiction is not a claim
under 1367(a). It may or may not be the case that 1367(d) applies to those
cases that do not invoke supplemental jurisdiction.
If plaintiff re-files dismissed claim within 30 days of dismissal in federal court, it will
be timely.
When You Need it; When You Don’t Need It
Every single claim asserted in a case in federal court (not just plaintiff’s original claim
that got the case into federal court) must satisfy an independent basis of subject matter
jurisdiction.
=> Includes counterclaims, additional claims brought in by plaintiff, and perhaps
claims asserted by third party
- If additional claim satisfies an independent basis of subject matter jurisdiction
(such as diversity of citizenship or federal question) then it can be asserted in
federal court
- If additional claim doesn’t satisfy diversity of citizenship or federal question, then it is
possible that claim can still be heard in federal court under supplemental jurisdiction.
- Supplemental Jurisdiction is an independent basis of subject matter jurisdiction
- Allows federal court to hear claims that could not get into federal court by itself
Principles
1. Supplemental jurisdiction is never available to get the original case into federal court.
Only available for additional claims.
=> Plaintiff must assert at least one claim that qualifies the case to be heard as a
diversity or federal question.
=> After that, supp. jurisdiction might be available for additional claims
2. Supplemental jurisdiction is not needed if there is a standard, independent basis of
subject matter jurisdiction.
=> Only relevant if no diversity or fed. question
3. Constitutional Application of Supplemental Jurisdiction
- Article III of the constitution grants subject matter jurisdiction over “cases” or
“controversies” involving the various heads of federal jurisdiction.
- Supplemental jurisdiction, therefore, applies if and only if the claims are so
closely related to the claim that invoked the federal court’s jurisdiction as to
be considered part of the same case or controversy as that claim.
**Rule**
- Federal courts have supplemental jurisdiction over claim that “derives from a common
nucleus of operative fact” with the claim that invoked subject matter jurisdiction.
Additional Rules
- Only Claim Remaining is Supplemental Jurisdiction
=> If only claim left is case over which there was only supplemental jurisdiction (ie.
nonfederal question, nondiverse), the federal court has the power to hear it as long
as it “derives from the common nucleus of operative fact.” (United Mine Workers
v. Gibbs)
- Discretionary Authority to Refuse Supplemental Jurisdiction
- Court may refuse to exercise supplemental jurisdiction when:
- Original jurisdiction claim is dismissed early in proceedings
- State law issues predominate substantially in the litigation
-
-
=> In terms of proof, scope of issues raised, or comprehensiveness of
remedy
Considerations of judicial economy, convenience, and fairness to litigants
counseled such a refusal
=> Trying the federal and state claims together would confuse the jury
REMOVAL JURISDICTION
Rules: 28 USC 1441, 1442, 1443, 1445, 1446, and 1447
1441
(a) -
(b) (c) -
-
-
Defendants can remove to federal court
Can only remove if federal courts have original jurisdiction
Venue
=> Case is removed only to the federal district “embracing the place where the
action is pending.”
=> General venue rules (1391) do not apply
There can be no removal if any defendant is a resident of the state.
Any federal question claim can be removed.
Unless the federal question claims removed by the defendant were separate and
independent from the state law claims, 1441(c) cannot apply and the district court
must retain the federal claim. Hence, the district court’s discretion to remand under
1441(c) can only apply to those state law claims which the district court could decline
to hear under 28 USC 1367. (Borough of West Mifflin)
1441(c) grants the federal court only a limited authority to remand a case; limited to
those cases where state law claims are separate and independent.
If the plaintiff joins a “separate and independent” federal question claim “with one or
more otherwise nonremovable claims”, the defendants may remove the entire case
including the otherwise nonremovable matters.
The federal courts have the discretion to remand “all matters in which state law
predominates.”
1446
(a) Required contents of notice of removal: short and plain statement of grounds for removal
plus copy of all documents served defendant.
(b) i. Notice of removal must be filed within thirty days after receipt of copy of
pleading or summons
ii. If initial pleading is not removable, but an amended pleading is, then you must file for
removal within 30 days of when it becomes clear that the case can be removed.
iii. However, you cannot remove on the basis of diversity jurisdiction more than 1 year
after case is filed.
=> Applies when someone has voluntarily settled with the only nondiverse party
or other voluntary acts of the plaintiff.
(d) Once you give notice to the plaintiff and file in state court, case gets remanded.
1447
(c) Motion to remand case for defect must be made within 30 days, UNLESS defect is lack
of subject matter jurisdiction.
(d) Order to remand is not reviewable (unless it based on 1443).
(e) If plaintiff tries to destroy diversity jurisdiction after removal by joining additional
nondiverse defendants, court may deny joinder or permit joinder and remand.
Principles on Removal
1. Procedure that permits defendant sued in state court the right to “remove” the case to
federal court.
2. Case can only be removed to from state court to federal court
=> No provision for removing a case from federal court to state court
3. Only defendants can remove a case; plaintiffs cannot.
=> Even if defendant asserts a counterclaim against the plaintiff, the plaintiff cannot
remove the case to federal court
4. All defendants must agree to remove a case. (Chicago, R.I. & P. Ry. Co. v. Martin)
(1441a)
5. Defendants can only remove cases over which federal courts have original jurisdiction
(1441a).
6. Defendants must remove the case to federal court within 30 days after being served
process
- What if D1 and D2 are served at different times?
=> General Rule: D2 cannot remove unless she can show that P knew about
her within the 30-day period for serving process on D1 and delayed
joining her in bad faith. (Borwn v. Demco)
=> Though some courts say that D2 should have the opportunity to cajole D1
into agreeing to remove the case to federal court
Process for Removal
1. Defendant starts process by filing a notice of removal in the federal court. (1446a)
2. Defendant then has to give written notice to all adverse parties and file a copy with the
State court. At that point, case will be removed to federal court. (1446d)
3. If removal is improper for some reason other than lack of subject matter jurisdiction, the
plaintiff must move to remand within 30 days after the removal. (1447a)
=> Examples: Defendant failed to include in the notice of removal all the
information required by 1446 or if not all defendants joined in the notice.
4. No time limit (except prior to final judgment) on remanding for lack of federal subject
matter jurisdiction. Court must remand sua sponte whenever it determines that subject
matter jurisdiction is lacking. (1447c)
Defendant’s Waiver of Right to Remove
1. Filing a permissive counterclaim (as opposed to compulsory counterclaim) in state court
probably waives the right to remove. (Isaacs v. Group Health)
2. Filing an answer that might conclusively determine the merits of the case does not result
in such waiver.
Exceptions to Diversity Removal
1. There can be no removal if any defendant is a resident of that state. (1441(b))
2. No case can be removed on the basis of diversity of citizenship more than one year after
the case was filed in state court. (1446(b))
- Applies whenever there’s a voluntary act of plaintiff that creates diversity or
allows rule 1441(b) to apply
Separate and Independent Federal Question Claim
- Suits that involve supplemental claims that “derive from the common nucleus of
operative fact” do not fall within the scope of 1441(c) since supplemental claims are not
separate and independent.
- 1441(c) grants the federal court only a limited authority to remand a case.
Issues of Jurisdiction
1. Defendant can remove a case only if it “is one of which the district courts of the United
States have original jurisdiction.”
2. If a case over which there is no federal jurisdiction is filed originally in state court and
removed to federal court, the federal court remands to state court.
=> If originally filed in federal court, and there is no jurisdiction, case gets dismissed.
3. When a defendant removes and there is no subject matter jurisdiction, if the defect is
cured (ie. plaintiff dismisses claim against nondiverse defendant) before entry of
judgment, then the judgment holds. (Caterpillar, Inc. v. Lewis)
=> Only if dismissal is voluntary by plaintiff
=> If dismissal is involuntary (ie. the court finds there is no personal jurisdiction
over D1) then no, because the dismissal may be overturned on appeal. (Poulos v.
Naas Foods, Inc.)
4. If plaintiff tries to destroy diversity jurisdiction after removal by joining additional
nondiverse defendants, court may deny joinder or permit joinder and remand. (1447e)
Issues of Venue
1. Case can be removed only to the federal district “embracing the place where the action is
pending.” (1441a)
Plaintiff’s Pleading to Thwart Removal
- Plaintiff is master of his complaint
Rule 1: Plaintiff can join a defendant who is a co-citizen with her, thereby defeating
complete diversity.
Exception: Defendant can remove only if she can convince the court that the claim
against the jurisdiction-defeating party is not genuine. (See Pete Rose case)
Rule 2: Plaintiff may sue for exactly $75,000 or less.
Exception: Defendant can try to demonstrate that plaintiff’s claim in fact meets the
jurisdictional amount.
Rule 3: Plaintiff can choose not to assert a federal law claim.
Exception: The ERISA rule – if a substantive area has been “completely” preempted by
federal law, there is no basis for a state-law claim. Such as the labor management
relations act and ERISA.
PLEADINGS
Three Basic Pleadings:
1. Complaint
2. Answer
3. Reply
- A motion is not a pleading
COMPLAINT
Rule 3: Case begins when plaintiff files the complaint.
Rule 8(a): Three requirements of a claim for relief (complaint, counterclaim, cross-claim, etc.)
1. Statement of subject matter jurisdiction
2. Statement of the claim
3. Demand for judgment
- If it lacks any of these, then it’s usually dismissed without prejudice or with leave to
amend.
Rule 8(a)(1): Statement of Subject Matter Jurisdiction
- Refers to subject matter jurisdiction
- The exception of when court already has subject matter jurisdiction doesn’t
apply to the complaint.
- Though the rule provides for a “short and plain” statement, it should not be too short
or conclusory.
=> Forms offer clues of how much detail to include
=> Rule 84 says that the forms are sufficient under the rules
=> Form 7 indicates the degree of detail needed.
Rule 8(a)(3): Demand for Judgment
Rule 8(a)(2): Statement of the Claim
- Short and plain statement of the claim showing that the pleader is entitled to relief.
- Need not plead a prima facie case of discrimination and that petitioner’s cl
Rule 12(b)(6): Motion to Dismiss for Failure to State a Claim
- Traditional Rule: Complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief.
- If plaintiff pleads facts and the facts show that he is entitled to no relief, the
complaint should be dismissed (Posner warned in American Nurses’ Association
v. Illinois)
- New RULE: Bell Atlantic changes all that.
=> Plaintiff must allege facts supporting a plausible claim
1. Existence of facts in definition is surprising
2. Requisite degree of detail is uncertain now.
Rule 8(e): Construing Pleadings
- Pleadings are to be construed so as to do justice
Heightened Pleading Requirements
Rule 9(b) and 9(g): examples of pleading where notice pleading was never good enough
=> Must give detail
9(b): Fraud or Mistake
9(g): Special Damages
- Those that do not normally flow from an event
- Unusual situations
Rule 11: Sanctions and Representations to the Court
(a) All documents must be signed
(b) All pleadings, written motions, or other documents certifies “to the best of the
attorney’s (or unrepresented party’s) knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances
- Not for improper purposes
- Legal contentions are nonfrivolous
- Facts have evidentiary support
-
Denials of factual contentions are warranted by evidence or lack of
information
(c) Sanctions may be imposed, but not without a 21-day safe harbor
RESPONDING TO THE COMPLAINT
Two Options for Response
1. Answer
2. Bring a Motion
Applicable Rules
Motions
- Rule 12
Answers
- Rule 8(b): Denial of Allegations
- Rule 8(c) and 12(b): Raising Affirmative Defenses
Time for Response
- 20 days to respond (12(a)(1)) … unless waived right to process, then 60 days (Rule 4)
=> Applies to complaint, counterclaim, or reply
- Rule 6a provides that the day triggering the relevant period is not included in the
period. So the day after the service of process is the first day.
- Denied motion or granted motion for more definite statement requires responsive
pleading within 10 days after notice. (12(a)(4))
- Time Extensions: provided by Rule 6b
Responding by Motion
Motions under Rule 12(b)
- Multiple motions can be combined, but may only be raised once: 12(g)(1) and (2)
- Rules 12(b)(2-5) must be raised in the first response or else they are waived.
=> See Rule 12(h)(1)
- They can be included in an answer as well.
- If first response is answer, must be in there.
- Rules 12(b)(6) and (7) can be raised anytime through to the end of trial
=> See Rule 12(h)(2)
- Rule 12(b)(1) can be raised any time, even for the first time on appeal
=> See Rule 12(h)(3)
Rule 12(b)(6): Motion to Dismiss for Failure to State a Claim
- Traditional Rule: Complaint should not be dismissed for failure to state a claim
unless even if all the facts are taken in the light most favorable to the plaintiff, the
plaintiff could not win.
- If plaintiff pleads facts and the facts show that he is entitled to no relief, the
complaint should be dismissed. (Posner warned in American Nurses’ Association
v. Illinois)
- New RULE: Bell Atlantic changes all that.
=> Plaintiff must allege facts supporting a plausible claim
1. Existence of facts in definition is surprising
2. Requisite degree of detail is uncertain now.
Motions for Judgment on the Pleadings: Rule 12(c)
- This is a motion that is basically the same as 12(b)(6). It is brought after
defendant has served an answer.
Motion for More Definite Statement: Rule 12(e)
- 12e permits the defendant to bring a motion for a more definite statement on one
that is so vague or ambiguous that a party cannot reasonably be required to frame
a responsive pleading
Motion to Strike: Rule 12(f)
- Available to any party
Responding by Answer
- Answer must accomplish two goals:
1. Responding to the allegations of the complaint (Rule 8(b))
2. Raise affirmative defenses (Rules 8(c) and 12(b))
Responding to Allegations Contained in Complaint
- Defendant has three options
1. Admit allegations
2. Deny allegations
=> Allegations not denied “are admitted”: 8(b)(6)
3. Say lacks sufficient information to do either: 8(b)(5)
- Has the effect of an admission
- Denying allegations
- Admit some, but not all
- Or “general denial” => denies everything
-
Unlikely that there will be nothing in a complaint that is true,
though
Raising Affirmative Defenses
- Defendant injects new facts into dispute
=> Ex: Statute of Limitations, Statute of Frauds, etc.
- Failure to raise an affirmative defense may preclude one from providing evidence
of that defense at trial
AMENDING PLEADINGS
Rule 15(a)
1A: Plaintiff has a right to amend once before being served with a responsive pleading
=> Motions are not pleadings
1B: Defendant has right to amend once within 20 days after serving her answer/responsive
pleading
2: - Outside of 1A or 1B, parties need consent from court or other party to amend
- Court should freely give leave when justice so requires
15(b): Only relevant for stuff that happened at trial
15(c): An amended pleading now is treated as thought it had been filed when the original
pleading was filed.
Two situations:
1. Plaintiff may seek leave to amend her complaint to add a new claim (15(c)(2))
- Relation back is permitted if the amended pleading arose out of the
conduct, transaction, or occurrence set fort or attempted to be set forth
in the original pleading.
2. Plaintiff adds a new defendant
- Permits relation back only if three requirements are met:
1. Claim arises from same conduct, transaction, or occurrence as
that stated in the original complaint
2. Within 120 days after filing the original complaint, the new
defendant has received such notice of the suit that she will not
be prejudiced in defending
3. Within the same period, the new defendant “knew or should
have known that, but for a mistake concerning the identity of
the proper party, the action would have been brought against
him”
=> Basically only one set of cases that satisfies this:
-
-
Plaintiff sued the wrong defendant originally and the right
defendant knew about the case and knew that, but for a
mistake, it would have been named originally.
The only thing that absolutely must occur before the statute of
limitations runs is the filing of the complaint.
After you file the complaint, you get 120 days to serve process
to the guy and then fix the mistake.
COUNTERCLAIMS AND CROSSCLAIMS
Counterclaim Principles
- “Opposing party” means somebody who has asserted a claim against the party
=> Almost all counterclaims will be by defendant against the plaintiff.
=> Cross-claimants can make counterclaims, too, though.
- Counterclaim is a claim, not a defense
Subject-Matter Jurisdiction
- Claims that are permissive must rest on independent jurisdictional grounds
- Claims that are compulsory are considered ancillary to the claim asserted in the
complaint and no independent basis of federal jurisdiction is required.
=> Supplemental jurisdiction applies if the claims share a common nucleus of
operative fact. Claims from same transaction or occurrence does this.
=> So see if there is fed. question or diversity jurisdiction first, then apply
supplemental jurisdiction.
Compulsory Counterclaim
- Party failing to assert a compulsory counterclaim loses the claim and cannot assert it in
another proceeding.
13(a)(A):
Tests for “Transaction or Occurrence”:
1. Is there any logical relation between the claim and the counterclaim? (one used in
United States v. Heyward-Robinson Co.)
2. Are the issues of fact and law raised by the claim and counterclaim largely the
same?
3. Would res judicata bar a subsequent suit on defendant’s claim absent the
compulsory counterclaim?
4. Will substantially the same evidence support or refute plaintiff’s claim as well as
defendant’s counterclaim?
13(e): A court may permit you to assert a counterclaim that matured after an earlier pleading
13(f): Court may permit a party to amend a pleading to add a counterclaim if it was omitted
through excusable neglect or oversight.
Permissive Counterclaim
- Claim must establish federal subject matter jurisdiction (fed. question or diversity)
- Jurisdictional inquiry is a separate step done after determining that the claim is properly
asserted under 13(b)
=> Almost always a claim that does not arise from the same transaction or occurrence
does not have supplemental jurisdiction.
=> It needs to have federal question or diversity jurisdiction
13(b): Any counterclaim that isn’t compulsory
=> Basically any that doesn’t arise out of the same transaction or occurrence as
original claim.
DISCOVERY
- Fact-Dependent
- Depends on legal theory that defendant is maintaining in case.
Five Tools of Discovery
- Depositions => Rule 30(a)
- Interrogatories => 33
- Requests for Production => 34
- Medical Examinations
- Requests for Admissions
Types of Discovery
- Required Disclosures: Three Stages => 26(a)
1. Required Initial Disclosures
2. Required Disclosures Concerning Expert Witnesses
3. Required Pretrial Disclosures
- General Discovery => 26(b)
Requests for Production
- Rule 34
- Applies only to requests for production from parties
-
Does not apply to request for production from nonparties (must see Rule 45 for that for
subpoenas)
REQUIRED DISCLOSURSES
=> 26(a)
Required Initial Disclosures
- Rule 26(a)(1): Required Initial Disclosures
A. Parties must provide all of the following without request:
i. Name, address, and telephone number of each person “likely to have
discoverable information” that the party will use to support argument
=> Except those used for impeaching credibility of witness
ii. All documents and things that the disclosing party may use to support claims
or defenses
=> Except those used for impeaching credibility of witness
iii. Computation of damages claimed
iv. Notification of insurance policy
=> Exceptions
- Rule 26(a)(1)(B) lists several exceptions
- And (a) says “Except as otherwise stipulated or ordered by the court…”
Time Period to Make Disclosures (C)
- 14 days after 26f conference or (D)
Required Disclosures of Expert Testimony
- 26(a)(2): Disclosure of Expert Testimony
A. Must disclose identity of expert witnesses
B. Must be accompanied by written report (if specifically employed to testify),
including:
- Statement of opinions
- Data
- Qualifications
- List of all publications authored in previous 10 years
- List of all other cases in which witness testified in last 4 years
- Compensation to be paid
Time to Disclose
- 90 days before the date set for trial
- Within 30 days after other party’s disclosure if intended solely to contradict or
rebut evidence of another party
Pretrial Disclosures
-
26(a)(3): Pretrial Disclosures
(A)(i): Name, phone number, and address of each witness
ii: Indication of those witnesses whose testimony it expects to present by
deposition
iii: Identification of each document or other exhibit to be used at trial
SCOPE OF DISCOVERY
=> 26(b)
-
Requirements for Discoverable Information => *** 26(b)(1)***
1. “Relevant” to a Claim or Defense
- Must be pertinent to something contained in the pleadings
2. Privileged Material
- Confidential communication between particular people
- Attorney-client, doctor-patient, (maybe spouses and clergyparishioner), etc.
- Must be made in furtherance of providing professional services
- Not limited to litigation, but party must know that the
person he is talking to is an attorney and intend for the
communication to be confidential. For example, a
discussion in a crowded bus between an attorney and his
client would probably not be confidential.
=> Rule 26(b)(5) (When a party claims privilege)
- Must expressly make the claim that it’s privileged.
- Describe the nature of the documents or communication, without
revealing privileged information, which will enable others to
assess the claim.
- Inadmissible Evidence => Reasonably Calculated
- Sentence 3: Information can be discovered even if it can’t be admitted at
trial, as long as that information is “reasonably calculated” to lead to
discoverable information.
- Such as hearsay
- Would be required to relate information even if you don’t know it
to be true first hand
- Exception: Court Order
- Court may order discovery of any matter relevant to the subject matter of
the action
-
Limitations on Discovery => ***26(b)(2)***
B.
Undue Burden or Cost
- Party does not need to produce information if it is not reasonably
accessible because of undue burden or cost.
- Exception
=> If requesting party shows “good cause” the court may still
order discovery
C.i.
Unreasonably Duplicative or Cumulative
- Not enough that there is some overlap or duplication of request.
- Must determine if requests are unreasonably redundant, under
circumstances of case and request
C.i.
Obtainable from More Convenient Source
- That it may be obtained elsewhere does not necessarily preclude
discovery.
- Determine whether it’s reasonable under circumstances.
=> Is information cheaper and precisely the same?
C.ii. Ample Opportunity to Obtain Info Already
- If party has opportunity to make discovery, it should not delay doing
so and risk violating this provision
C.iii. Cost Outweighs Likely Benefit
- Court considers needs of the case, amount in controversy, parties’
resources, importance of issues at stake in action, and importance of
discovery in resolving issues
- Court wields considerable discretion in these areas
=> (See Also: Work-Product Limitations and Protective Orders)
-
Work Product Limitations => ***26(b)(3)***
=> Generally, work product is not discoverable
- Not a “privilege,” but a limitation
- Work product consists of materials “prepared in anticipation of litigation”
- Anticipation of litigation means before or after case has been filed
- So long as a party-to-be prepares material because he anticipates that
there will be litigation the requirement is met.
- Therefore, if it is prepared in the ordinary course of business, or as a result
of public requirements unrelated to litigation, the product is probably not
protected
- Investigations done in anticipation of litigation, therefore, are protected
- Like in Hickman
- Non-written material must still be written down
- Unfair and freeloading
- Types of Work Product
-
-
-
-
1. Written Witness Statements
- Certain things you can’t take out like subtle lawyer’s thoughts
- But overt stuff can be removed.
2. Memo of Attorney
- Problems:
- Completeness and accuracy
- Could contain lawyer’s thoughts in
3. Oral Statements-Written
- Accuracy problems are magnified
- Weakened memory
- May have gotten it wrong in first place
- Get other facts between then and now and its difficult to separate
out who said what perfectly.
Exceptions: Rule 26(b)(3)(ii)
- Substantial need for materials
- Cannot obtain substantial equivalent by other means.
=> If witnesses are known and available, though, they can be deposed
- Or might even be able to get the written witness statement from
them.
Party claiming work-product privilege has burden of raising the issue
=> Rule 26(b)(5): Party must expressly declare it to be privileged and
describe the nature of the materials to allow others to assess the claim
“Documents and Tangible Things”
- Applies to descriptions of interrogatories, too
- Discovery of detailed description of interrogatories is equivalent to
discovery of the documents themselves, and is not likely to be permitted
Absolutely Protected Work Product => Rule 26(b)(3)(B)
=> If court grants discovery of work product, it must protect against the
following:
- Mental Impressions
- Conclusions
- Opinions
- Legal Theories
- If document contains discoverable material and nondiscoverable material,
court should order nondiscoverable material redacted.
- Not limited to attorney’s work product
- Includes party, lawyer, insurance company, private investigator,
any other agent, etc.
PROTECTIVE ORDERS
=> Another limit to discovery
-
Rule 26(c): Protective Orders
- 8 situations when protective orders might be appropriate
- Not exhaustive
- Courts exercise discretion
- Party seeking protective order must make a motion for protective order
- Motion must be made in good faith
- Trade secrets
- Things that are not patented, but which have great value nonetheless and
in which parties have invested a great deal of time developing
- Alternative methods to divulging trade secrets
- Not let certain parties see them; only attorneys
- Have court look over them to determine if the key ingredient is in there
Alternative Methods (Marrese)
1. Judge should postpone discovery request more readily than one denying the request
altogether. As per Rule 26(d)
=> Other nonsensitive discovery can be completed first.
=> Then the court can revisit the question of whether it is necessary
2. In camera judicial review
=> Judge can examine files himself
- “Relatively costless and eminently worthwhile”
- Doesn’t have to look at all the files necessarily => just depends on
facts of the case.
- If the judge found no evidence in those files of any wrongdoing, he
would not have to look at the other files
3. Redaction
=> Judge can order files with people’s names or other info redacted.
- Whenever there’s a concern for the invasion of the privacy of others or
other sensitive info needs to be kept out.
=> Redaction can be reviewed in camera by the judge, who would have the
originals before him to assure the accuracy of the redactions.
=> If the files contain evidence or leads to evidence, plaintiff’s counsel could
then have requested the judge to order names revealed to counsel so that
relevant individuals could be deposed.
4. Other nonsensitive discovery can be completed first.
- Then the court can revisit the question of whether it is necessary
- Any leads contained in sensitive material might be tracked down by
nonsensitive discoverable material, even if it is not wholly foreseeable that
that would be the case
-
Parties may be better able to determine their position and may be more likely
to settle without the sensitive material being unveiled to public
5. Court could require that only specific individuals view the
- Maybe encounter a problem with the jury sometimes
- It can be that the parties won’t be allowed to review them if that’s who they’re
trying to keep the info from
6. Limits on amount or extent of discovery on all or some issues. (“already had an
opportunity to get this.”)
7. Materials be kept in a sealed file before
8. Court can order that it be withheld from public record?
9. Relatively wealthy litigant could pay the expenses of discovery to the other party.
10. Page 334 of the Supplement has a suggestion.
Standard for Overruling Judges
- Abuse of discretion
=> “Clearly erroneous”
- Rationale for high bar
- District court knows more about the case and has been listening to everything the
parties have been saying. He knows the situation better.
- Low bar would encourage review
Duty to Supplement Responses
- Rule 26(e)
- Must correct or supplement disclosure, in a timely manner, if disclosure or response is
incomplete or incorrect
PRECLUSION
=> Only raised when fact pattern involves at least two cases
- First case has ended, and a judgment has been entered
Claim Preclusion
- Claim Preclusion = Res Judicata
- Means literally, “The thing has been decided”
- Claimant only gets one opportunity to assert a claim; one bite at the apple
- Claimant must seek all rights to relief in Case 1. She won’t be able to get other rights to
relief in Case 2.
Issue Preclusion
-
Issue Preclusion = Collateral Estoppel
Does not necessarily result in dismissal of Case 2
=> Means that the issue will not be relitigated. The factfinder will be instructed that
the issues has been established.
Raising Preclusion as a Defense
- Rule 8(c) lists them as a defense or else risk waiving them
Rationale for Preclusion
- Finality
- Defendant has right to repose
- Consistency in outcome
- Efficiency in judicial system
CLAIM PRECLUSION
- Claimant may sue only once to vindicate a claim
- Single claim might include more than one right to recovery.
- Can recover for broken arm and damaged car
- Claimant must be careful to seek recovery for all rights to relief in that one case.
- A precluded claim results in dismissal of Claim 2.
- Rule is either you litigated it or you should have litigated it. Either way you only get one
trial.
Requirements for Claim Preclusion
1. Case 1 and Case 2 must have been brought by the same claimant against the same
defendant.
- Same party must be asserting a claim in both cases
- Don’t forget about compulsory counterclaim rule (13a)
=> If A sues B over an accident and B doesn’t sue A, B is not precluded
by claim preclusion. However, he has waived his claim because he
has not brought it because it’s the same transaction or occurrence.
- Claim preclusion also applies to someone who is in privity with the claimant
AND/OR vicariously liable parties.
=> Matthews v. NY Racing
- Claim preclusion does not force every person injured in a single case to join
together in one suit.
=> Simply forces each claimant to join various elements of damage and
legal theories arising from a claim into a single case.
2. Case 1 had to end in a (1) valid, (2) final judgment (3) on the merits.
- Valid
-
Did court have subject matter jurisdiction?
Did it have personal jurisdiction?
If judgment was wrong on the merits, losing party should have
appealed.
- Doesn’t matter if legal basis was subsequently overruled either.
=> Exception: If court orders an injunction and then the law
changes, the case isn’t believed to be over yet because there is
merely a court-order. So a court would be required to alter its
judgment consistent with the change of law.
- Final Judgment
- Interlocutory orders are not final
- Only the final judgment is appealable, and only final judgment has
claim and issue preclusive effects
- What if final judgment is appealed? What is the status during
pendency of appeal?
- Federal law is that the judgment entered is entitled to
preclusive effect.
- Most appeals result in affirming the trial court’s judgment
- On the Merits
- Examples of on the merits
- Final judgment at trial
- Summary judgment
- Default judgment
- Involuntary dismissals (Rule 41(b)) for any failure to comply
“with any of these rules or any order of court … operates as an
adjudication on the merits” unless otherwise stated by the
court.
- Examples of not on the merits
- Voluntary dismissal, where plaintiff pulls the plug on the case
- Dismissals without prejudice
- Involuntary dismissal based on the following:
1. Lack of subject matter or personal jurisdiction
2. Lack of venue
3. Failure to join a party under Rule 19
3. Case 1 and 2 must be based on the same claim.
- Definition of Claim:
1. Same transaction or occurrence
2. Same operative facts
3. Same evidence will support both transactions (Jones v. Morris Plan
Bank of Portsmouth)
4. Damages for multiple installments
=> If a transaction is represented by one single and indivisible
contract and the breach gives rise to one single cause of action,
it cannot be split into distinct parts and separate actions
maintained for each. (Jones)
- Minority rule: One claim for each right violated. (one for property,
one for personal injury) … Indicated by court in Rush.
Exceptions
1. Parties can by agreement separate out issues that would ordinarily be part of claim
preclusion.
=> Must be clear about what you’re carving out in a settlement and what you’re
setting aside for future litigation.
2. Mesotheleoma (exposure to asbestos)
=> Court says that contraction of mesotheleoma is a separate injury.
3. Amending claims
=> Sometimes it won’t be clear on the face of a claim if transaction at issue is the
same one already litigated. So although you’re supposed to raise claim
preclusion at the beginning, courts often all you to do it on amendment.
4. File in small claims court and then discover damages are greater than jurisdictional
amount?
=> No clear answer to this. Just don’t bet on being able to litigate again in
second case. File claims simultaneously in federal and small claims courts to
cover your bases.
ISSUE PRECLUSION
- Narrower than claim preclusion
- Don’t necessarily get thrown out of court unlike claim preclusion.
- Applies only to preclude relitigation
Requirements of Issue Preclusion
1. Case 1 must have been a valid, final judgment on the merits.
- See claim preclusion.
2. Issue presented in Case 2 must have actually been litigated and decided in Case 1.
- Discovery of new evidence doesn’t allow you to relitigate
- Whether issue has been decided may depend on how the court sees the issue
decided in Case 1.
- Cromwell
- Supreme Court held that Cromwell was entitled to demonstrate that he
was a “holder in due course” which he hadn’t demonstrated in the
previous case. In the previous case the County sued and the issue that the
issuance of the bond was established.
- Determining if it was Litigated and Decided
=> Preclusive effects
- Trials (depends)
- Judge usually enters findings of fact and conclusions of
law, which usually make clear what issues were actually
determined.
- Jury trials
- Special verdicts or interrogatories make clear
what’s determined.
- If no special verdicts or interrogatories, though,
then we may not be able to tell what issues were
decided.
- Summary judgment probably
- Summary judgment means that there is no dispute on a
material issue of fact and that the moving party is entitled
to judgment as a matter of law.
- Determination that there is no material factual dispute is an
adjudication of what facts exists and constitutes “litigation”
=> Nonpreclusive effects
- Voluntary dismissal with prejudice
- Claim-preclusive, but not issue preclusive
- No issue was litigated
- Default judgment
- No issue litigated
3. Issue had to be necessary to the court’s ruling.
- Ask: If the finding on this issue had come out the other way, would the judgment
be the same?
- Rationale
i. Rios, defendant in case 1, could not appeal the finding that he was
negligent in case 1.
- Davis could not assert issue preclusion because Rios’ negligence
was not essential to the determination in case 1. Davis had been
found contributorily negligent. Rios’ behavior was irrelevant.
ii. Finding was irrelevant to outcome, so maybe jury may not have devoted
sufficient attention to the issue.
- Alternative Findings
-
-
-
A sues Z for negligence. Jury finds that Z is not negligent and A is
negligent. Either ruling would result in judgment in favor of Z. If you
took away either, the ruling in favor of Z would still stand.
Traditional view is that both are essential.
But opposite view was taken by Restatement that said neither is essential
to the judgment. (exception is when one or both is upheld expressly on
appeal)
DO NOT CONFUSE with situation in which both findings are necessary
for the result.
=> A sues Z for negligence. Jury says that Z was negligent and A was
not negligent. Both are necessary for the result. Both issues are
essential to the result and both are entitled to issue preclusive
effects in Case 2.
Who Can be Bound?
4. All plaintiffs must be given a full and fair opportunity to be heard.
- Due process inquiry concerns question of against whom preclusion may be
asserted.
- Parties to case 1 will be bound.
- Nonparties to case 1 generally will not be bound.
=> P2 has not had her day in court.
- Persons deemed to be in “privity” with parties to case 1 generally will be bound.
3 Types of Relationships in Privity
1. Successive Interests in Property
2. Nonparty Controls Litigation in Case 1
3. Nonparty in Case 1 Was Represented
5. Generally, no mutuality is required.
- Mutuality inquiry concerns the question of by whom preclusion may be asserted.
- Nonmutual means the person using issue preclusion was not a party to Case 1.
=> P2 can raise it against D1 if in the first case, jury found D1 to be negligent
=> However, if court finds D1 is not negligent in case 1, P2 is not bound by decision
in first case because of due process.
Exception to Offensive Mutuality: Massive tort case where one ruling is rendered a
bunch and then overturned once on appeal.
ERIE – DETERMINING THE APPLICABLE LAW
-
Relevant only in diversity cases
Apply Federal Rules of Civil Procedure
-
Apply the substantive State law in which the judge sits.
SUMMARY JUDGMENT
-
If party needs more time, he can ask for a continuance (56(f))
Simply, though, if there is a dispute of fact, there must be evidence supporting that
factual dispute.
=> Parties cannot rely on pleadings anymore.
- Affidavits aren’t necessary, but there needs to be some proof.
A. Summary Judgment [ Rule 56]
i. Ct can look at evidence, usually will
ii. Before trial
iii. Standard: 56(c): 2 parts
1. moving party must show there is no dispute on a material issue of fact
2. entitled to judgment as matter of law (usually a given)
iv. trying to weed out a case when do not need a trial
1. only have trial b/c disputes of fact
2. if evidence shows no dispute of fact, don’t need a trial
v. if no dispute, don’t need a trial, can enter SJ
vi. evidence comes from parties
1. usually in affidavits
a. affidavit=sworn written statement
b. can treat as evidence b/c sworn
2. deposition testimony
3. answers to interrogatories
4. can’t use pleadings (unless verified pleadings)
vii. not granted lightly
1. Matsushita, Anderson, Celotex
a. Collective message: grant SJ, if standard is met, go ahead
2. even though SupCt said that, still always discretionary
a. if meet standard, doesn’t mean you’re going to get it
viii. 1 thing clear: ct can never resolve a dispute of fact on SJ
1. if evidence shows dispute of fact-can’t grant SJ
ix. hypo: P is pedestrian, run over by D, sues D—says D ran red light; D moves for SJ,
affidavits from 3 priests, say green light, all the P’s fault—P needs to come up with
evidence, can’t just rely on pleading—evidence is from a sketchy person, says D ran red
light—SJ must be denied
1. take all evidence, ask is there a dispute on a material issue of fact, if Y—must
deny SJ
APPELLATE REVIEW
-
Jury Trial (7th amendment, Rule 38)
=> 7th Amendment prohibits courts from reexamining findings of fact by a jury
-
-
=> Very high tolerance for jury error
- Error in facts
- Ultimate determination must comport with the law, though
- If determination is incompatible with finding of fact and the law,
courts will not be reluctant to overturn
- Standard for juries? I think: “no reasonable jury could have found ___”
Trial by judge
- Standard of Review: Not set aside unless “clearly erroneous” (52(a)(6)). Judge’s
findings of fact are “supported by substantial evidence”
=> Less willing to defer to single judge’s view of the facts than those of six jurors
- Why?
- Does not have the ability to discuss issues
- Errors in the judgment of one would be likely to be corrected by
five others, and unlikely to be corrected by himself.
- Advantage, though, for trial judge is that he gets to see witnesses live and would
be better able to judge credibility
Review of judgment of law
- Automatic de novo review.