SUBJECT MATTER JURISDICITON
28 U.S.C. 1331 Federal Question Jurisdiction
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Text: “The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws or treaties of the United States.”
What it says:
Application:
(1) Federal court has original jurisdiction over issues arising under the
Constitution or US laws
- Usually a case brought under 1331 have a cause of action created by federal
law. In some cases 1331 may be used when the vindication of a right under
state law necessarily turned on the same construction of federal law. (Merrell
Dow)
(2) The federal issue must be stated on the face of the claim, it cannot be a
state claim based on federal statute (Merrell Dow)
(3) The federal question must appear as part of the plaintiff’s cause of action
as set out in a well pleaded complaint. The claim does not raise a federal
question if it only anticipates federal rules as a defense. (Louisville v. Motley)
Cases:
Creation of a Federal Private Right of Action (Merrell Down)
(1) Plaintiffs are part of the class for whose special benefit the statute was passed.
(2) The congressional purpose was to create a private right of action.
(3) A federal cause of action would further the purpose of the legislative scheme.
(4) The cause of action is a subject traditionally related to federal law.
28 U.S.C. 1332 Diversity Jurisdiction
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Text: (a) The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between
o (1) citizens of different states;
o (2) citizens of a State and citizens or subjects of a foreign state;
o (3) citizens of different States and in which citizens or subjects of a
foreign state are additional parties; and
o (4) a foreign state…as plaintiff and citizens of a State or of different
states
o (c ) For the purposes of this section and section 1441 of this title (1) a
corporation shall be deemed to be a citizen of any State by which it
has been incorporated and of the State where it has its principal place
of business…
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What it says:
Application:
According to Strawbridge v. Curtis every plaintiff must be of diverse
citizenship from every defendant (no plaintiff can be domiciled in the same
state as any defendant.) If a citizen as joined as a defendant and is from the
same state as the plaintiff, complete diversity is destroyed and 1332 is
defeated.
(complete diversity is a statutory requirement, not a constitutional
requirement).
Citizen: an individual is a citizen of a state only if he is both
(1) Citizen of US or an alien admitted for permanent residence AND
(2) domicilee in the state
(a) Resident within that state AND
(b) Intends to remain in the state indefinitely (intends to return
whenever he or she is absent) i.e. voter registration, driver’s license,
family, property, house, permanent job
- And individual remains a citizen in the state of his or her former domicile
until he acquires a new domicile.
- Citizenship is determined at the time the suit is filed.
- American living abroad has no domicile within the use and cannot sue or be
sued in federal court on diversity J.
Amount in Question:
There there must be a good faith allegation that damages exceed $75,000.
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Policy: Protects out of state litigants from local prejudices, provides a
nationwide system of courts in which important commercial disputes could
be adjudicated and a uniform system of law applied
Cases:
1330
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What it says: gives federal courts original jurisdiction over claims against
foreign nation as long as the nation is not immune. Explains how the foreign
nation is not immune.
28 U.S.C. 1367—Supplemental Jurisdiction
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Text
What it says: (a) When the court has original jurisdiction over a civil action,
the court may have supplemental jurisdiction over any claims with no
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independent basis for jurisdiction as long as they are part of the same case or
controversy under Article III of the United States.
This includes additional claims asserted by the plaintiff but also those
asserted by other parties as well, such as cross claims and counter claims.
(Condified UMW v. Gibbs)
(b) When the court has original jurisdiction under 1332 (diversity),
supplemental jurisdiction is not permitted for claims made by plaintiffs
against persons made parties under 14 (impleader),19 (compulsory
joinder) ,20 (permissive joinder) or 24 (intervention); claims by persons
proposed to be joined as plaintiffs under Rule 19; and claims by persons
seeking to intervene as plaintiffs under Rule 24.
Restricts cross-claims not counter-claims
Application: Under 1367 (a) the court can obtain subject matter jurisdiction
over a claim with no independent basis for jurisdiction when the claim is so
related as to be considered part of the same case or controversy. Here,
supplemental jurisdiction is appropriate because the claims arose out of the
same controversy when …[ insert facts]. Under 1367 (b) the court may bar
supplemental jurisdiction if the original plaintiff brings in another party
using rule 14, 19,20 or 24. Here rule [#] was used so….
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Policy: Broad supplemental jurisdiction in federal question cases facilities
the core business of the federal courts of adjudicating these cases efficiently
and effectively. Narrower supplemental jurisdiction in diversity cases
conserves the resources of the federal courts and encourages litigants to take
disputes to state court.
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Cases: UMWA v. Gibbs held that the claims must derive from the common
nucleus of operative fact. Owen Equipment v. Kroger
Article III of the United States Constitution
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What it says: (§1) Gives congress the power to create federal courts.
o (§2) Federal courts have the power to hear cases arising under the
constitution, laws and treaties of the US, cases affecting ambassidors,
public ministers, consols, admirality and maritime cases,
controversies in which the US is a party, controversies between states,
controversies between a state and a citizen of another state,
controversies between persons of different states and controversies
where foreign states, citizens or subjects are parties. The Supreme
Court has original jurisdiction over cases affecting ambassadors,
public ministers and consuls and when the US is a party. For all of the
other categories, the Supreme Court has appellate jurisdiction.
o Provides right to trial by jury (except impeachment)
VENUE
When you want to transfer from federal court to federal court based on
convenience…
28 U.S.C. 1404 (a)—Change of Venue
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Text: (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.”
What it says: (a) A district court may transfer a civil action to any other
district where it may have been originally filed. [transfer from one federal
district court to another federal district court]
Application: [Plaintiff/ defendant] may transfer the case to [location] if the
case could have been filed there originally. Under 28 U.S.C. 1404 (a) the law
of the transferor forum will apply. Under 28 U.S.C. 1391 transfer to [location]
is possible because …
Cases: Ferens v. John Deere held that following a transfer under 1404(a), the
transferee court must follow the laws of the transferor forum regardless if
the defendant or the plaintiff makes the motion. Van Dusen
What to do when the case is brought in an improper venue…
28 U.S.C. 1406—Cure or Waiver of Defects (Transfor)
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Text: (a) “The district court of a district in which is filed a case laying venue
in the wrong division or district shall dismiss, or it be in the interest of justice,
transfer such case to any district or division in which it could have been
brought.”
What it says: 28 U.S.C. 1406 (a) provides for dismissal or transfer to the
right venue when the venue does not meet the qualifications of 1391. The
two remedies under 1406 are dismissal and transfer. The law of the
transferor forum DOES NOT apply.
Application: Follows a 12(b)(3) motion for improper venue. If venue is
improper under 28 U.S.C. 1391 defendants can transfer the case to any
district where the case could have originally been brought. The law of the
transferor forum does not apply. The defendants can transfer to [location]
because the case could have originally been filed there under 1391…
Cases:
Removal from state court to federal court
28 U.S.C. 1441 (a) removal
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Text: (a) “Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts of the U.S.
have original jurisdiction, may be removed by the defendant or the
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defendants , to the district court of the U.S. for the district and division
embracing the place where such action is pending.”
(b) Any civil action of which the district courts have original jurisdiction
founded on a claim or right arising under [1331] shall be removeable without
regard to the citizenship or residence of the parties. Any other such action
shall be removeable only if none of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is brought.
What it says: If the plaintiff files in state court, the defendant may remove
the action from state court into federal court as long as the case could have
been originally filed in federal court. If there is shared citizenship between
any defendant and any plaintiff there is no diversity.
Application: The defendants can remove the case to the U.S. District Court in
[location] under 28 U.S.C. 1441(a) because the case could have been
originally filed in federal court under [1331/
[if 1332] However, if the federal jurisdiction is based on diversity of parties,
then 1441 (b) provides that an action is removable only if none of the parties
are citizens of the state in which the action is brought. Here, [plaintiff/
defednat] is a citizen of [state] so the action is not removeable.
Here, [1331/1332] permits the federal court to exercise jurisdiction because
there is [federal question/ complete diversity and the amount in controversy
exceeds $75,000].
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Cases:
Forum Non Convenience
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Common law rule that permits a motion to dismiss on grounds of nonconvenience when there is a better forum elsewhere.
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Applies when there is proper territorial jurisdiction, subject matter
jurisdiction and venue
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Cases: Piper Aircraft v. Reyno
When a venue is proper…
28 U.S.C. 1391 Venue
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Text:
o (a) applies to diversity, (b) applies to federal question
o (a)(1) and (b)(1) venue is available where a defendant resides as
long as the defendants are from the same state
o (a)(2) and (b)(2) venue is available in a judicial district in which a
substantial part of the events occurred or a substantial part of
property that is the subject of the action is situated.
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Under (a) (2) and (b)(2) venue can be available in more than
one location because a claim can arise in more than one district.
o (a)(3) and (b)(3) is available in any district where a defendant
is subject to personal jurisdiction.
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This is a fall back provision available only when (1) and (2)
are not met
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Subsections (a) and (b) operate identically as long as where
a defendant is “subject to personal jurisdiction” and “may
be found” mean the same thing.
o (c )A defendant that is a corporation shall be deemed to reside in
any judicial district which it is subject to personal jurisdiction. (do
minimum contacts)
o (d) An alien may be sued in any district (acquire J first)
o Venue requirements to not apply to cases removed from state
court (1441(a))
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What it says: Venue is proper if it is the place of resident of the
defendant, the location where a substantial amount of the events giving
rise to the claim arise, a place you can find any defendant residing as long
as there is no district where the action may be brought otherwise. (c ) A
defendant corporation resides where it is subject to personal jurisdiction.
Application: Under 28 U.S.C. 1441 [(a)/(b)] venue is proper because…
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Policy: “The purpose of statutorily specified venue is to product the
defendant against the risk that a plaintiff will select unfair or
inconvenient place of trial” (449)
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Cases:
S.C. 1338 (a) Patents, plant variety protection, copyrights, mask works,
designs, trademarks and unfair competition
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Text:
What it says: District courts have original jurisdiction over disputes
related to patents, planet variety production, copyrights and trademarks.
District courts have exclusive jurisdiction over patent, plant variety
protection and copyrights.
Application: Here, the case could have been brought in federal court
under 28 U.S.C. 1338 (a) because the dispute is over trademarks.
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o Here, the case must be filed in federal court under 28 U.S.C. 1338
because the dispute is over [patents/ plant variety protection/
copyrights].
Cases: Burger King (trademark infringement)
28 U.S.C. 1603 Defines a Foreign States
28 U.S.C. § 2072. Rules of procedure and evidence; power to prescribe
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Text: (a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in the
United States district courts (including proceedings before magistrate
judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right.
All laws in conflict with such rules shall be of no further force or effect
after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final for the
purposes of appeal under section 1291 of this title.
28 U.S.C. 2201 Creation of Remedy
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Text:
What it means: Proivdes the remedy of a declaratory judgment. How a
plaintiff requests a declaration of rights from the federal courts in case of
actual controversy within its jurisdiction. A plaintiff’s well pleaded
declaratory judgment complaint will often assert rights based on federal
law, whereas that same assertion of federal rights would have appeared
as federal defenses in the answer had plaintiff waited to be made a
defendant in a coercive suit for damages or an injuction.
PERSONAL/ TERRITORIAL JURISDICTION
In Personum Jurisdiciton = The ability of a court to exercise power over a defendant
or their property.
To have personal jurisdiction, service of summons must be satisfied, thus before
personal jurisdiction there must be
(1) Notice to the defendant (best practical means available- Mullane)
(2) A constitutionally sufficient relationship—establish constitutionality with min.
contacts.
When establishing jurisdiction, FRPC 4(K)(1)(a) says that the federal court must
apply the state long arm statute. Statutory authorizations for exercise of jurisdiction
where there is no service of process allowed for in the state. [Analyze]. Must ask
whether statue allows for exercise of jurisdiction. California has a long arm statute
that allows full service consistent with the constitution.
Challenge to In Personam Jurisdiction
o With a 12(b)(2) motion or answer the defendants may challenge
personal jurisdiction by setting forth reasons why they lacked
jurisdiction. [Ex:
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Exercise
o Traditionally personal jurisdiction is established by citizenship,
consent, property in the state or personal service in the state.
 Implied Consent—By undertaking this course of activity you
have implied a consent to the exercise of jurisdiction i.e. filing
an answer without a 12 (b)(2) motion.
 Express consent—Created by contract such as in a forum
selection clause, you can expressly consent to J by choosing a
forum.
To determine if the defendants are subject to personal jurisdiction in [location], the
court will look to whether the defendant has a traditional basis for jurisdiction due
to citizenship, consent, property in the state or personal service in the state.
Minimum Contacts Test
If the contacts are so pervasive that it could be said that they are acting as a resident
of the state, the Benguet v. Perkins “quacks like a duck” test applies and the court can
establish general jurisdiction over the defendant.
Alternatively, International Shoe v. Washington extends the application of personal
jurisdiction, via personal contacts test, to absent non-residents when the
defendant’s contacts with the forum state justify establishing jurisdiction with
respect to the notions of fair play and substantial justice.
[Analyze]: To establish in personam jurisdiction through minimum contacts you
need
(a) What is the contact? Characterized as continuous and systematic
(evidence of purposeful conduct- McGee) or isolated and accidental?
- Qualitative test (not quantity)
(b) Purposeful availment to the “privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its laws.” (Hanson v.
Denkla) In Hanson v. Denkla, the court found that the Delaware trust
company did not have minimum contacts with Florida because it did not
intentionally direct conduct towards Florida.
(c ) “Stream of Commerce” –Asahi court was split on whether placing an item
in the stream of commerce amounted to purposeful availment. The defendant
must perform an act at which he must purposefully directs the product
towards the forum state’s market, BUT mere awareness that the product will
be sold in the forum state is not sufficient.
(d) Foreseeability (alone, insufficient World Wide Volkswagon)
(e) Fairness: State’s interest in providing a forum for its citizens, plaintiff’s
interest in obtaining relief, burden on the defendant of litigating in a foreign
state, risk of inconsistent judgments, relative positions of the parties. (McGee
v. International Life) Interstate judicial interest in efficient resolution and
substantive social policy considerations. In Helicol the court was unwilling to
exercise personal jurisdicition over an international
Service of Process 4(K)(1); §2361- In personam jurisdiction
I.
Plaintiff must arrange to have someone deliver to the defendant process:
a. A summons (formal court notice of a suit and time for response); and
b. A copy of the complaint
II.
Plaintiff must serve process within 120 days of filing the complaint or else
the case will be dismissed without prejudice (unless plaintiff shows good
cause for the delay)
III.
Process may be served by any nonparty who is at least 18 years old and may
take the form of:
a. Personal service
i. Papers are given to defendant personally anywhere you find the
defendant in the forum state (unless defendant is present only to
be a witness or party in another civil case)
b. Substituted Service
i. Process can be left with someone other than the defendant if:
1. It is the defendant’s usual abode;
2. The person being left with process is of suitable age and
discretion; and
3. The person being left with process resides there
c. Process can be delivered to defendant’s agent authorized to receive
service (e.g., a corporation’s registered agent or any officer) or a state
officer appointed by operation of law (nonresident motorist, etc.).
d. Waiver by Mail
i. Process can be mailed to the defendant by first class mail, postage
prepaid, as long as:
1. Defendant returns the waiver form waiving formal service
within 30 days
a. If he does not return the waiver form, he must be
served personally or by substituted service at his
cost)
e. Process can be delivered to a defendant in another state as long as state
law allows for it (with a long-arm statute, for example).
i. Exceptions:
IV.
1. Federal court can serve a defendant outside the forum state
regardless of state law under the Bulge rule and/or
statutory interpleader (see below)
These rules apply to formal service of process, by which a defendant is
brought before the jurisdiction of the court. For subsequent papers (e.g.,
answer, other pleadings, motions, discovery requests and responses) can be
served by delivering or mailing the document to the party’s attorney (or pro
se party). If mailed, three additional days are given for the required response
time
Pleadings: statement of the parties’ positions on the factual and legal issues in
dispute
Pleadings Process
Rule 7(a)—Pleadings Allowed; Form of Motions  Pleadings
- 1) P files complaint (Rule 3- commences the lawsuit)
- 2) D files answer
- 3) If D wishes to complain against P, D files counter claim (13a, b)
- 4) If D wishes to complain about co-D, D files a crossclaim (13g)
- 5) If D wishes to bring in 3rd party D, D files 3rd party complaint (14a-impleader)
- 6) If P, co-D, or 3rd party D, responding to D, files answer to counterclaim,
crossclaim, or 3rd party complaint.
- 7) No other pleading allowed except that Ct may order a reply filed to the
answer but usually not.
Rule 7(b) Motions and other Papers
- (A) Motions must be in writing (unless made during a hearing or trial)
- (B) Shall state with particularity the grounds therefore AND
- (C) the relief or order sought
- Must be signed—Rule 11
- Motion: A written or oral application requesting a court to make a specified
ruling or order.
- Pleading: A formal document in which a party to a legal proceeding (esp.
lawsuit) sets forth or responds to allegations, claims, denials, or defenses.
Complaint- Rule 8(a)- Initial pleading in lawsuit filed by Plaintiff* Essay
Three Requirements: a pleading setting forth a claim of relief must contain:
 (1) Statement of Subject Matter Jurisdiction: "a short and plain statement
of the grounds for the court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional support." In other
words, an original plaintiff invoking federal court authority by commencing a
civil action in a federal district court must always plead the basis for
jurisdiction. [ANALYZE]
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o Complaints or other claims requiring allegations of subject matter
jurisdiction may allege subject matter jurisdiction directly or
indirectly. The pleading may either refer to the appropriate
jurisdictional statute or contain factual assertions that, if proved,
establish jurisdiction.
(2) Notice pleading – “short and plain statement of the claim showing that
the pleader is entitled to relief”
o All pleadings setting forth claims for relief must include a short and
plain statement of the claim showing that the pleader is entitled to
relief. Until the Supreme Court's decision in Bell Atlantic Corp. v.
Twombly, the courts agreed that a claimant did not need to set out in
detail the facts on which the claim for relief was based, but only
needed to provide a statement sufficient to put the opposing party on
notice of the claim.
 POLICY: Rule 8-based "notice" pleading standards applied to
the question of proper pleading in federal court. The intent of
the liberal notice pleading system was to ensure that claims
were not filtered for merit at the pleading stage, but were
determined on their merits rather than through missteps in
pleading. (Conley v. Gibson)
o Bell Atlantic v. Twombly: (telephone company monopoly) dismissed
b/c of lack of evidence, due to OVER pleading for the purposes of 8a:
plaintiff pleaded himself out of court plaintiff must state a plausible, not
merely possible, claim [Analyze]
 In the Twombly case, an antitrust class action brought under
the Sherman Act, the Court ruled that the complaint could not
survive a motion to dismiss without some factual context
suggesting an agreement in restraint of trade, sufficient to state
a claim to relief that was "plausible on its face.” The Court
reiterated the traditional Rule 8 standard, which requires only
a "short and plain statement of the claim showing that the
pleader is entitled to relief" sufficient to "give the defendant
fair notice of what the ... claim is and the grounds upon which it
rests," and also noted that on a motion to dismiss, the district
court must accept as true all the factual allegations in the
complaint.
 However, the Court went on to say that, while a complaint does
not need detailed factual allegations, "a plaintiff's obligation to
provide the 'grounds' of his 'entitlement to relief' requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Factual allegations
must be enough to raise a right to relief above the speculative
level." The Court stated that its decision does not require
heightened fact pleading of specifics. Rather, the Court
interpreted the basic Rule 8 notice standard as requiring
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enough facts to state a claim to relief that is plausible on its face.
[Analyze]
Pleadings must convey enough contentions to allow a meaningful
response (do not require great detail, just enough, to put the other
side on notice)
Just enough to set forth the agenda for the process of discovery
if the P pleads a valid cause of action, the burden is said to shift to the
D, but until the P has stated a valid cause of action, the P has the
burden
federal court does not require a lot of detail, just put the other side on
notice
if this is done correctly, there will be no room for a Rule 12(b)(6)
motion (Failure to state a claim upon which relief can be granted)
 Sorema: (discrimination b/c of race and age) court reversed
12B6 dismissal It is incongruous to require a plaintiff, in order to
survive a motion to dismiss, to plead more facts than he may
ultimately need to prove to succeed on the merits if direct
evidence of discrimination is discovered
Exception:
 Rule 9(b)—have to give detail in circumstances of fraud and
mistake
 Rule 9(g)—for special damages, you have to give specificity
 Special damages- those that don’t normally flow from
an event, you don’t expect them to result from the event
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(3) demand for judgment for the relief the pleader seeks
Burden of Production vs. Persuasion.
- The person who has the burden of pleading has burden of production.
o He who pleads must prove.
- Burden of Production- burden of coming forward with evidence to support
their case
o must produce sufficient evidence to allow factfinder (judge or jury) to
find in their favor.
o Pleading refers to making allegations; production refers to producing
evidence to support those allegations
- Burden of Persuasion- bears risk of non-persuasion.
 If factfinder not persuaded that critical alleged facts have been
proved, the party with burden of persuasion loses.
* Things to consider under Rule 8 (a)
 if complaint dismissed, plaintiff has leave to amend (FRCP 15)
 plaintiff must only plead, not prove
 Considerations: public policy, fairness and probability:
o evidence in control of party will be allocated to that party
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o burden of pleading on party who would benefit
o plaintiff: Prima Facie Case
o defendant; affirmative defenses
 Gomez v Toledo: (Puerto Rican police case) 8c: affirmative
defense Whether immunity has been established depends on
facts particularly within the knowledge and control of the
defendant, there may be no way for the plaintiff to know in
advance whether the official has such a belief, or whether he
will even claim that he does
plaintiff meets limitations period in FEDERAL QUESTION cases when she
files the complaint before the statutory period passes
Defendant’s Response- Rule 8(b): Answers and Denials
 After the P sets forth the cause of action, the burden shifts to the D
o -if the D does nothing in response to the claim, then the court takes
everything the P has said as fact
 An answer- a pleading that serves as an answer to the claim (or your motion
can be denied and then you answer)
o 8(b)(1)- “A party shall state in short and plain terms the party’s
defenses to each claim asserted and shall admit or deny the
averments upon which the adverse party relies… Denials shall fairly
meet everything set forth in the claim.”
o 8(b)(2)answer shall fairly respond to the substance of the complaint
complaint
o Failure to deny has the same effect as admission: 8B6
 Averments in a pleading to which no responsive pleading is
required or permitted shall be taken as denied or avoided
o Requires defendant to respond paragraph by paragraph to the
allegations in the complaint
o Or a general denial with specific admissions
o Statute of Limitations: Within 21 days formal service, 60 days mailed
service
o Damages amount always seen to be at issue: 9d
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Two Requirements:
o Have to respond to the claim (3 ways)—Rule 8(b)
 Admit
 Silence is the same as admission—the court takes
everything the P says to be true
 Deny
 If you fail to deny, it is deemed an admission
 Negative pregnant- if you fail to effectively deny or
include the right things in your denial, then you are
making an admission (it is a denial pregnant with an
admission)
o Exception: not an admission for damages
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Lack sufficient information to admit or deny 12(b)(6)
Raise Affirmative Defenses—Rule 8(c)= affirmative defenses must be asserted
by the defendant in the defendants answer to the complaint
 “a plea in confession and avoidance” –you avoid the consequences of your
action
o May excuse D from liability
 Here D is raising a new fact to show he is going to win
o Ex. contributory negligence, self defense, Statute of Limitations, res
judicata, estoppel, fraud, illegality
 These must be pleaded in the beginning, or else you cannot use them later
 If you have denied the material allegations of the P’s complaint, and it
destroys the P’s claim, or does it specifically seek to avoid it—then it needs to
be pleaded separately
 If D denies allegations, no affirmative defense acceptable
 Failure to answer: default judgment on behalf of plaintiff: loses the right to
contest liability
 Statements that require no response, like affirmative defense, are taken to be
denied
 Affirmative defenses will NOT destroy the plaintiff’s cause of action
o Where the D’s claim is inconsistent w/plaintiff’s claim, there is no
affirmative defense
 WARNING:
o If D pleads an affirmative defense and it does not succeed, it is treated
as an admission.
Rule 8(d) Pleading to be Concise and Direct; Alternative Statements;
Inconsistency; Authorizes pleading in the alternative
 A party may set forth two or more claims or defenses, alternately or
hypothetically, either in one count or defense or in separate counts or
defenses. When two or more claims are made in the alternative and one of
them, if made independently, would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements.
 A party may also state as many separate claims or defenses as the party has,
regardless of consistency.
 without the generosity of Rule 8(d)(2)—you would have to know exactly
how the court would rule on one cause of action, but this rule allows you to
plead two or more contradictory causes of action.
o Ex. of the person who was injured when broiler exploded, then fell off
the gurney at the hospital causing severe head injuries—he can sue
everybody without knowing the outcome
FRCP 15: Amending Pleadings
Rule 15(a)—Amendments before trial
 1. Two types of pleading:
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o
o
o
o
i. those filed as a matter of course
a. may be filed at any time before a RESPONSIVE
PLEADING
b. FRCP 12B motions and Venue transfers are NOT
pleadings to which a response must be filed
ii. those by the leave of court: If there is no right to amend, you
seek court permission (“Your Honor, please allow me to
amend”)—Courts usually allow unless there is delay or
prejudice
2. Allows for amendments to matters of law and fact, as long as there
is a valid factual basis for amendments
1. allows a party to revise a pleading as a matter of course if no
responsive pleading has been filed, or if the pleading is one
to which no responsive pleading is permitted and the
amendment is made within 21 days of service of the initial
pleading or within 21 days after responsive pleading or pre
answer motion is served.
Pleading as a matter of right, without having to make a motion and
have it granted by the judge
No further pleading is required in response to an answer- the
complaint and answer are the only pleadings filed
Also allows defending party a chance to amend
‘cases should be tried on their merits rather than on the technicalities
of their pleadings’
Rule 15(b)—Amendments During and after trial
o Based on an Objection at Trial: If the defendant does object to the new
claim, the evidence regarding the new claim is inadmissible because it
is at “variance with the pleadings”
 Variance- evidence at trial does not match the pleading
 (ex. P files a claim for breach of contract, but then presents
evidence of a tort)
 If the other side does not object to a variance, Rule 15(b) will
allow the evidence in, and after trial they can amend the
pleadings to conform to the evidence
 If they do, the side producing the evidence can move to amend
during trial
o For Issues Tried by Consent: If, at trial, plaintiff introduces evidence
regarding a claim not contained within the original complaint, and the
defendant does not object (impliedly consents to a trial of this new
claim), after trial, the plaintiff can move to amend the pleading or
pretrial conference order to conform to the evidence (to show the
new complaint)
o If an issue not raised by the pleadings is tried by the parties express or
implied consent- operates on the assumption that all parties expected
claim to be litigated
o Permit amendment when doing so will aid in presenting the merits
Rule 15(c)—Relation back of Amendments; amending after the S of L has run
Relation back- means you treat the amended pleading as though it was filed when
the original was filed
 15C: 1A/B: relation back if original claim was in statute of limitations- will
be treated as though it had been asserted in the original pleading
A. where state law permits relation back
a. state law will trump 15c on statute of lim.
B. same conduct or transaction: Federal rule
a. only needs but for, not proximate cause
C. federal law will follow state relation back and new claim rules
 Rule 15(c)(1)(C): If a defendant is named improperly by mistake, relation
back permitted if defendant knew or should have known, received notice of
action within 140 days (4m)
o Requirements:
 (1) claim arose from the same transaction or occurrence set
forth in the original claim
 (2) the party to be brought in has received notice within 120
days from the time of the original complaint
 (3) knew or should have known that he would have been
brought in originally, but for a mistake.
 (4) Defendant may not know of suit during statutory period
 (5) mistake as to who committed crime not the same as
mistake of identity
 Worthington v. Wilson: (police brutality case) court
held that lack of information for improperly named
defendant was not the same thing as mistake under 15c
and refused relation back
 If under the law of the state, relation back would not be permitted, under
15(c), it is permitted under FRCP
Rule 15(d): Supplemental pleadings
 Once you have sued a defendant for particular conduct any amendment to
add new claims based on the same conduct, transaction or occurrence will be
treated for statute of limitations purposes as though it had been in the
original complaint



relate to matters occurring after the date of the original pleading
permission of the court upon motion is required
may be granted even though the original pleading is defective in its
statement of claim for relief or defense
FRCP Rule 9(b)-Heightened Pleading for Fraud and Mistake and Special
Damages
 A.) Used in cases of alleged fraud or mistake
i. sufficient details must be present
ii. cannot be amended on a case by case basis
 B.) Parties must state ‘with particularity’ the circumstances constituting
fraud or mistake
i. Tellabs v. Makor Issues and Rights: (fiber optic lying CEO) raises
level of pleading for 9B from plausible to probable: must establish that
it is more likely than not that defendant acted in a certain way
required scienter
ii. Sweirkiewicz v. sorema: lower court erred in requiring detailed
pleading in employment discrimination claim: courts have not power
to impose rigorous pleading requirements outside the areas
addressed by federal rule or statute
 C.) 9(g): claims for special damages must be specifically stated
a. future pain and suffering
b. loss of wages
c. medical bills
d. earning capacity
 D.) Heightened pleading circumstances:
a. Capacity to sue and be sued: need not be alleged, determined
by the law of the domicile
b. Fraud or mistake
c. Conditions of the mind: averred generally
d. Conditions precedent: averred generally
e. Official document: aver that it was done within compliance
of law
f. Time: time and place are material for sufficiency of pleading
g. Special damages: must be specifically stated
Pre-answer or answer motions:
1. FRCP: 12a: defendant files an answer, or a ‘pre-answer motion’ 12B
a. a. all defenses must be alleged at the same time pursuant to 12G
b. or they are waived: 12H1
b. filing a pre-answer motion under 12B is an alternative to answering
the complaint- defenses 2-5 must be included in whatever is first
c. filing a pre-answer motion is OPTIONAL
d. if no pre-answer motion is filed, defendant may include defenses in
answer to complaint: 12B2, B3, B4 and B5 are WAIVED if not pleaded
in first response, whether pre-answer motion or answer
i. pleading may be amended pursuant to 15a, motion cannot
e. Notice of removal DOES NOT COUNT for 12B purposes
f. a motion to dismiss is not a responsive pleading- pre-answer motion
to dismiss suspends the time for filing an answer until the motion has
been decided- does not impact the leave to amend as a matter of
course
2. FRCP 12B Pre-trial answer motions
*Every defense to a claim for relief in any pleading must be asserted in
the responsive pleading if one is required. But a party may assert the
following defenses by motion:
1. 12(b)(1): lack of subject matter jurisdiction
a. Preserved by 12(h)(3)
b. Can be asserted at any time
2. 12(b)(2): lack of personal jurisdiction
a. Took place of ‘special appearance’
b. Sufficient when defendant ‘lured’ to state
c. Burnham: in person service sufficient for jurisdiction
3. 12(b)(3): improper venue: corrected by 1406, not 1404, moving to
correct improper venue
4. 12(b)(4): improper process
a. Challenges adequacy of summons itself
5. 12(b)(5): insufficient service of process
a. Challenges manner in which the complaint and
summons were delivered
6.: 12(b)(6): failure to state a claim for which relief can be granted
a. Preserved by 12(h)(2) for any time prior to or at trial
b. Plaintiff whose complaint is dismissed will have leave to
amend
c. The wrong that plaintiff describes is not recognized as a
violation of legal rights
d. Only question posed by 12(b)(6) is whether the COMPLAINT
ITSELF states a LEGAL SUFFICIENT claim
e. No consideration of other evidence or facts
f. Where an essential element of the complaint cannot be
alleged, after leave to amend, dismissal will occur
i. Attacks legal sufficiency of claim
ii. Res judicata will apply to dismissal
iii. Alleges that even if all facts were true, claim would
not be entitled to legal relief
iv. Assumes that plaintiff can prove all facts of allegation
i. Access Now v. Southwest: (violation of ADA southwest.com)
12B6: dismissal of a claim is appropriate when it is clear that no
relief could be granted under any set of facts that could be
proved consistent w/ the allegation
7. 12(b)(7): failure to join a party pursuant to rule 19
a. Preserved by 12H2 for any time prior to or at trial
b. Applies to necessary and indispensable parties
3.) 12(c): judgment on the pleadings
a. Challenges legal sufficiency of factual allegations in same manner of
12(c)(6)
b. Judgment on the pleadings: sufficiency of pleadings
c. Each party given the opportunity to procure and present relevant
evidentiary materials, including those that are relevant discovery
4.) 12(g): Joining Motions: defenses must be plead together; you must
raise all possible motions together
i. Applies to:
a. Lack of personal jurisdiction
b. Improper venue
c. Improper process
d. Improper service of process
5.) 12(h)(1): if they are not asserted together, they are WAIVED
o 12(h)(2): PRESERVES failure to state a claim upon which relief can be
granted or failure to join under rule 19 12B6 and 12B7
o 12(h)(3): PRESERVES lack of subject matter jurisdiction 12(b)
motion
a. 12(b)(1) and 12(b)(6) may not be preserved beyond trial
b. 12(b)(1): always preserved until the judgment is rendered
but subject to res judicata
i. Stems from federal and state relations and separation
of power
o 12(h)(1): allows leave to amend answer to include, waives right to
assert defenses: if there is no pre-answer motion, 12H1 is irrelevant
6.) 12(e): motion for more definite statement
a. Attacks factual sufficiency of claim
b. Not enough information for defendant to respond
c. Move for a more definite statement: BEFORE responding
d. must be motioned for before defenses and answer, initial response
to be made BEFORE RESPONSIVE PLEADING
7.) 12(f): Motion to strike:
a. Party may move to have stricken any insufficient defense or
redundant material
b. Fails if there is any possible situation in which party may prevail
Joinder of Parties and Claims
*1367b: applies ONLY to cases where 1332 is SOLE basis of jurisdiction: 14, 19,
20, 24, for CLAIMS MADE BY PLAINTIFFS, but does not cover claims by
multiple plaintiffs towards single defendant
a. do not use 1367 where 1332 is an option
Joinder
 You must first decide whether it can be joined
 then decide whether there is subject matter jx in federal court over this claim
Claim Joinder by the P: Authorizes Joinder of the Original Claims
 Rule 18(a)- you can join any and all claims that you have in a single case
(you don’t have to, but you can)—if there is only one P and one D, use ONLY
Rule 18
o they do not have to be related—do not have to arise out of the same
transaction or occurrence
o allows a party to bring all claims against the opposing party at the
same time
o but they can be taken away by subject matter jx (no supplemental jx)
 Rule 18(a)—“A party asserting a claim to relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join, either as
independent or as alternate claims, as many claims, legal, equitable, or
maritime, as the party has against an opposing part.”
 Originally used by P, but can be used later by D or 3rd party D
 **DO NOT USE RULE 18 BY ITSELF- MUST BE TAGGED ONTO ANOTHER
RULE; difference between ability under rules and whether court has subject
matter jurisdiction to hear the case: separate analysis of SMJ
 Broadest of joinder rules: allows for joinder of ANY claim that party has
against the opposing party once original claim has been filed
i. allows filing of related claims only AFTER original claim has been
filed
 Plaintiff may aggregate (coglomerate) unrelated claims to satisfy 1332

Rule 18(b) Permissive counterclaim
- Text: A pleading may state as a counterclaim against an opposing party any
claim that is not compulsory.
- What it means: Permits counter claims that are completely unrelated to
the original claim.
- Application: The [plaintiff/defendant] may assert this claim against the
opposing party under FRPC 13(b) which allows parties to file any unrelated
crossclaims against their opposing party.
Claim Joinder by D: Counterclaims and Crossclaims


Counterclaim- claim against an opposing party (against the person who is
suing you)
Rule 13(a)—Compulsory counterclaim arising from the same transaction or
occurrence as the P’s claim
o Must be asserted in the pending case, or it is waived (cannot sue on
this separately)
o 13(a) counterclaims must be raised in the pleadings, or they are
barred by res judicata (this is not true for Rule 13(b) counterclaims)
 But, if it is not included, D can use Rule 13(f) to amend and
add the counterclaim
o Exceptions:
 (1) if at the time the action was commenced, the claim was the
subject of another pending action (ex. quasi in rem, in rem,
etc.), OR
 (2) the claims require the presence of additional parties, over
whom the court has no personal jx; the opposing party sued on
its claim by attachment or other process that did not establish
personal jurisdiction over the pleader on that claim, and the
pleader does not assert any counterclaim under this rule.
o Counterclaims must be asserted D’s answer
o Will always use §1367 for supplemental jx, even if in violation of 1332,
because claims arenot made by plaintiff, and are COMPOLSORY
o What it means: (A)(1) authorizes any defendant party, not only the
original defendant in a suit to assert claims back against a party who
has claims against him as long as the claims are related to the original
claim.

Rule 13(b)—Permissive Counterclaims- unrelated claim against the
opposing party (does not arise out of the same occurrence or transaction)
o Between Defendant and Plaintiff
o If arise from different nucleus of facts against the same party
o In diversity cases, there must be a separate source of jurisdiction
o MUST be counterclaim, cannot be original claim or falls under Rule 18
o can sue on this separately, don’t have to, but you can
 if you do not include them, you are NOT barred by res judicata
later
o can never get in to federal court based on supplemental jx, because the
claim does not arise out of the same occurrence or transaction
o gives D the same option that plaintiffs have under Rule 18(a)
o **do not even mention supplemental jx, until you have gotten
past subject matter jx, when evaluating counterclaims

Rule 13(g)—Cross Claims asserted against a co-party and it must arise
from the same transaction or occurrence as the underlying suit
o it is never compulsory—does not have to be asserted here, but it can;
even there are the same transaction that would make a counterclaim
compulsory
o once cross claim is asserted, party becomes an opposing party and
counterclaims must be filed if compulsory or can be filed if permissive
under 13(a) and (b)
o can use supplemental jx for these claims
 cross-claims are not barred
o What it means: Provides for assertion of cross claims which arise out
of the same transaction or occurrence as the main claim. Cross-claim
by definition is transactional related to the existing action. (pretty
easy to get supplemental jurisdiction)
o Application: Here, the defendant can file claims against their codefendant under FRPC 13(g) because the claims arose out of the same
transaction or occurrence.
Joinder of Additional Parties—Rule 13(h)
 Rule 13(h)- says you can implead someone else, according to Rule 19 and
Rule 20
o Rules 19 and 20 govern the addition of a party to be joined to a
counterclaim or a cross-claim. (must be in accordance)
o Allows additional parties where the claims against eh added party and
original plaintiff meet the requirements of rule 20: arise from same
transaction and nucleus of common fact
o Allows for destruction of diversity for counterclaims by defendant
who has asserted counterclaims under 13(a): 1367(b) does not apply
b/c this is not a claim by the original plaintiff
o Means you add another party to the litigation
 Implead- the person is interpleaded (Rule 22)
o Different than Rule 14(a) because it does not involve derivative
liability
Necessary and Indispensable Parties
 if there is a non-party that has not been joined, sometimes a court will force
them into the suit
Rule 19(a)—Joinder of Parties (usually used by D): Compulsory Parties
o Says that there are two types of people who are necessary parties, and
must be joined if it is feasible
o Is the non-party necessary in the litigation?
 YES, if the party meets any of 3 tests:
 (1) without the non-party, the court cannot accord
complete relief among the parties (it is more efficient,
no further litigation); without absentee cannot redress
the parties


(2-1) the non-party’s interest may be harmed if she is
not joined; practical matter impair or impede persons’
ability to protect their interest
o where party is claiming interest to case and may
be impaired in protecting interest by ruling
 (2-2) the non-party’s interest may subject the D to
multiple or inconsistent obligations
Joint tort-feasors are not considered necessary parties

Rule 19(b)
o Is joinder of the non-party feasible?
 Yes, if there is personal jx, and as long as bringing you in does
not destroy diversity
 Rule 19(b)--If NO, (b/c there is no personal jx, or it destroys
diversity), then:
 if there is no personal jurisdiction over joined party
under state long arm statute considerations of fairness
and equity of all parties from the court : would party’s
absence prejudice her on existing parties, whether
prejudice can be reduced in shaping judgment, whether
a judgment in the party’s absence would be adequate,
whether plaintiff will be deprived of an adequate
remedy if the action is dismissed
 you can proceed with the litigation without him; OR
 dismiss the litigation (this will usually happen if there
is a another court that can proceed with all parties)—
called indispensable
 If party is necessary AND indispensable—the court must
dismiss
o This is decided on a case-by-case basis
o The court CANNOT proceed if there is failure to join an indispensable
party (it is treated like jx)
 Rule 12(b)(7)- failure to join an indispensable party
 Temple v. Synthes corp. (malfunctioning back
implement in spine) joint tortfeasors need not be
mandatorily joined under 19a, but are only permissive in
terms of joinder- case should not have been dismissed
under 19B
o The fact that conduct of an absent party is going to be brought into
the case does not require that party’s being impleaded or joined into
the case
 Helzberg v. Valley West: (jewelry store) 19b requires the
court to look at prejudicial effect on absent defendant, must
consider ways in which prejudice can be lessened or avoided
Rule 20(a)--Permissive Joinder of Parties (usually used by P, but D’s can use it
too); allows for permissive joinder of parties where related to same
transaction or series of transactions
- Parties are NOT required to sue together, but they can if they meet the
criteria
- allows parties to sue together if:
o (1) They assert claims arising out of the same transaction or
occurrence (or series of transactions and occurrences; and
o (2) their claims against the Ds will involve a common question of law
or fact
 Rule 20(a)(1)Plaintiffs can join together if their claims arise from the same
transaction or occurrence AND their claims raise at least one common
question
o All persons can join as P’s in one action if they assert any right to relief
jointly, severally, or in the alternative, in respect of or arising out of
the same transaction, occurrence.
 defendants can join together if the claims against them arise from the same
transaction or occurrence AND the claims raise at least one common
question
o All persons maybe joined as D’s in one action if any right to relief is
asserted against them, arising out of the same transaction or
occurrence.
o single plaintiff may sue multiple D’s, as long as they causes of actions
arise out of the same event
 you still have to have a basis for subject matter jx- diversity, each claim has to
be above the amount in controversy, etc.
Things to Consider under 20(a)
1.all joined parties must assert claims arising out of the same transaction or series of
transactions, and there must be a question of law or fact
2. Plaintiffs may join together, but are not required to do so in the same suit
20(a)(1)
3. Plaintiffs may join together multiple defendants under 20(a)(2) where same
common nucleus of facts test is met
4. 20(a)(2) does not require joinder of defendants
5. Governs joinder of parties, not claims
6. Does not require for the parties to proceed on the same theory of recovery for the
joinder as long as arises from common nucleus of facts
7. Only applies to joinder of parties by ORIGINAL plaintiffs
a. McCormick v. Kopman: (drunk driving car accident pleaded in alternative)
The pleader states the facts in the alternative because he is uncertain as to the
true facts, therefore he is not admitting anything other than his uncertainty
b. Kedra v. City of Philadelphia: (police brutality in Philadelphia) court
held that the events giving rise to the claim were reasonably related and
absolute identity of events is unnecessary for parties to be joined under 20a
1. joinder is to be construed liberally for the purposes of efficiency
*1367(b) applies in cases where jurisdiction is based ONLY on 1332 to
plaintiff in ANY claim
a. Jones v. Ford Credit: (ruling that there was jurisdiction over
permissive counterclaims) 1367(c) allows jurisdiction over permissive
counterclaims, not only compulsory ones
b. Fairview v. Al Monzo (supplemental jurisdiction over crossclaim
even when main claim was dismissed: 12(b)(6) can only be given by
court w/ jurisdiction- jurisdiction attaches at the time of filing for both
main claim and cross claim
Impleader: Impleader of party who may be liable for damages, NOT alreadyin
litigation: at discreation of court (** If it starts with “I,” we are bringing in a new
party)
Rule 14(a)- claims made by D’s to third parties: not compulsory
 you, as a defending party may join a third party D who is, or may be, liable to
you for all or part of the claim against you
 D is saying “If I lose, I should not have to pay all of this.” And brings in a third
party)
 Not the same as a cross claims, b/c these people are not co-parties
 Rule 14(a) does not require that the third party D be liable to the original P in
order for the original D to proceed with his claims against a third party D and
recover judgment on those claims
o So you can implead third party Ds even when there is no basis for the
third party D to be directly liable to the Ps
 This rule creates “no substantive rights to reimbursement, contribution, or
indemnity.”
 The Third Party D can:
o (1) answer the third-party complaint
o (2) assert any of the same defenses that the impleading D/third-party
P has against the original P
o (3) counterclaim against the third-party P (original D)
 How Can 3rd Party D Win:
o *the impleaded party can escape liability by defeating either the P’s
original claim or the D’s derivative claim against him





P can assert a claim against the third-party D as long as it arises from the same
transaction or occurrence as the underlying case
The Third-Party D can also assert a claim against the P
Jurisdiction:
o *third parties in impleader claims do not affect diversity jurisdiction (if
D adds D2 who is from the same state as P, it is still considered a
diversity case) or venue
o §1367(a) gives supplemental jx for 14(a) claims
Rule 18(a)- once a Rule 14(a) third-party impleader claim is properly made,
the third-party P can add unrelated claims against the third-party D under
Rule 18(a).
Timingo If a D files a 14(a) impleader claim more than 10 days after service of
D’s answer, they have to ask for “leave of court”
 The court will not always grant this.
Derivative liability- the liability of a third-party D impleaded under 14(a) is
derivative.
- before there can be liability for the third-party D, there must be liability for
the original D (now the third-party P) and the third-Party D must be liable to
the original D/Third-party P for all or part of that recovery
- the theories of recovery do not need to be the same for the D and the thirdparty D
o ex. Banks v. City of Emeryville- the original P brought a civil rights
action and the D brought a products liability action against the thirdparty D for the mattress in the jail cell.
o ex. Asahi Metal- where the components manufactured by third party D
were also the cause of the injury—the new D is derivatively liable.
- there must be a sufficient relationship for the D to say “if I am liable to the P,
then this third party is liable to me”
FRCP 14: Impleader of party who may be liable for damages, NOT already in
litigation: at discretion of court
a. 14(a): claims made by defendants to third parties: not compulsory
(a)(1): claims by original defendant
i. distinguish from cases where asserted that third party is liable
DIRECTLY to plaintiff but not to defendant
ii. plaintiff, as master of complaint, has ability to decide who to sue
iii. defendant may not substitute self for another defendant or add one
for purposes of liability to plaintiff
iv. third party defendant’s liability depends on the outcome of the
main claim between plaintiff and defendant
v. does not effect court’s jurisdiction over original claim or
whether venue is proper
vi. there must still be SMJ over third party claim, and personal
jurisdiction over third party plaintiff
a(2): claims by third party defendant
i. allows defenses against original defendant and original plaintiff
ii. defenses to third party claim and defenses to original claim
iii. treated as a separate lawsuit w/ original defendant as ‘third party
plaintiff’
a(3):
i. plaintiff claim against third party defendant
ii. limited to common nucleus of facts
b. 14(b): claims made by plaintiffs to third parties
1. before there can be recovery under 14(a), there must be recovery
against original defendant by original plaintiff, and third party
defendant must be found liable to original defendant
a. must be Relationship between the parties

i. Banks v. City of Emeryville: (burning mattress)
 Rule 14 does not require that the third party defendant be
liable to the original plaintiff in order for the original
defendant to proceed with his claim against a third party
defendant and recover judgment thereon
 Interpreted to allow claims even though the do not allege
the same cause of action or the same theory of liability as
the original complaint
2. when third party is impleaded, they are able to:
a. answer the complaint
b. assert any defenses to the complaint against the original
plaintiff
c. counterclaim against original defendant 13(a) or 13(b)
d. crossclaim against any codefendants who have been
impleaded 13(g)
e. plaintiff may claim directly against the third party defendant
(if diversity is not ruined by amending the original complaint)
3. 14(b) allows plaintiff against whom a claim is filed to assert claim
against third party
4. in 1331 cases, there is supplemental jurisdiction over all claims by
original plaintiff to third party defendant
5. in 1332 cases where diversity would be destroyed, there is no
jurisdiction over claims by plaintiff to third party unless plaintiff is
subjected to counterclaim by that party
i. Owen Equipment v. Kroger: (defective crane, plaintiff
amended original complaint) supplemental jurisdiction does
not extend to 1332 cases where claims by the plaintiff against
third party defendant destroys diversity of the parties
6. 13H: alternate view of impleader
Sanctions:
Rule 11: Signing of Papers, Motions, and Other Papers; Representations to the
Court; Sanctions
 A. reasonable investigation and evidentiary support
 B. warranted by existing law or a non frivolous argument
for the extension, modification or reversal of existing law,
or the creation of new law
 C. not being presented for an improper purpose
 D. description of the standards and process for the award of
sanction when a certification is found to violate the rule
Rule: 17(a) The real party in interest:
1. FRCP 17a:
a. an action must be prosecuted by the real party in interest
b. nominal party: sues for real party in interest
1. minor, incapacity
2. 1332 c1: direct action: law of the state of the
plaintiff’s resident
c. 17c allows for nominal party
2. Assignment:
a. claim originally belonging to another party can be assigned
through formal assignment or operation of law
b. USC 1359:
1. bars jurisdiction in which any party by assignment or
otherwise, has been improperly made or joined to invoke the
jurisdiction of the court
Intervention:
Rule 24—a non-party is bringing himself into the litigation
 When you intervene, you can choose which side to come in on (P or D)
 Two Kinds:
o Rule 24(a)- Intervention of Right- says you have an absolute right to
be there
o Rule 24(a)(1)- when a statute of the U.S. confers an unconditional
right to intervene
o Rule 24(a)(2)- when appellant claims an interest relating the
property or transaction which is the subject of the action
o (Have to Show 2 Things)
 your interests may be harmed if you are not joined; AND
 your interest is not adequately represented now
 i. atlantis v. united states (ownership of reefs)
allowed joinder of Atlantis as a party- due to being
impacted as a practical matter by stare decisis or res
judicata by court’s decision
 ii. Bustop v. Superior Court: (desegregation busing)
allowed intervention under 24a due to practical impact,


and interests of all parties involved being represented
equally
question of whether party was required to be joined under
Rule 19: allows joinder if feasible, where 24 allows party to
take initiative to intervene
allows absentee party who learns of an action to become a
party to litigation
o Rule 24(b)(2)—Permissive Intervention
 Your claim or defense and pending case have at least one
common question (this is up to the discretion of the court)
 Intervenor need only show a question of law or fact common to
the main action
 More liberal standard
 Even where intervenors would not be directly affected but
share interest w/ parties to suit
 More likely to be granted if party can show it brings a special
expertise to suit or different perspective
 Does not state that intervention must be denied if interest is
adequately represented by original party, but this is a factor in
court’s discretion
 May be granted by the court for a LIMITED purpose
-
if there is an objection to an intervention and the court wants to disallow the
intervention it is a Rule 24(b), if they want to allow it, it is a Rule 24(a)
**you still have to decide subject matter jx when these parties come in
o §1367(b) does not allow supplemental jx for people intervening
under Rule 24 if it will destroy diversity
Jurisdiction and Joinder:
a. court may have authority to join claims
b. jurisdiction over claims is SEPARATE question
c. implicit limitation on joinder as a practice
d. owen equipment v. Kroger: joinder cannot be used to defeat diversity
e. where 1367 does not award jurisdiction for additional claims, there must
be independent basis for jurisdiction
f. where joinder is proper, claims can be aggregated
Interpleader: used where diversity jurisdiction under 1332 cannot be applied
 It is a joinder device that allows the stakeholder to force all of the claimants
into one case, and asks the court to determine who gets the money
o Usually fighting over who owns some property (ex. money, car, land)
o The person who is in possession is called the stakeholder
o Claimants are people on the “same side of the v.”
 Once the stakeholder’s right to interplead is established, and he has
deposited the funds or property in court, he ceases to be a party to the




litigation; it is then up to the adverse claimants to litigate their claims to the
property.
joinder device which allows the stakeholder(party to obtain judicial decision
that he owes an obligation to one of several adverse claimants
i. State Farm v. Tashire: (Greyhound accident) state farm could not
use interpleader to force all claimants into one forum when its stake
in the matter was very limited
a. Inconsistent liability, not interpleader
b. in order for interpleader: adverse claims to WHOLE AMOUNT
of money
Allows for application of res judicata against involved parties
Only minimal diversity required between AT LEAST TWO ADVERSE
CLAIMANTS, but not the stakeholding party
In state court, no issue of minimal diversity- simultaneous action can be filed
by stakeholder in federal court to solve issue of jurisdiction
Two Types: (P can choose between which type to use)
 Rule Interpleader (Rule 22)—
o Subject Matter Jx: Rule §1332
 Complete diversity- just like a regular diversity case
 All of the claimants must be diverse from the
stakeholder
 Amount in controversy- must exceed $75,000
o Personal Jx:
 Regular service of process (under Rule 4(k)(1)(a))
 you should also use the state’s long arm statute
o Venue:
 §1391—Venue- regular venue rules
 (1) a judicial district where any D (claimant) resides, if
all D’s reside in the same state;
 (2) a judicial district where a substantial part of the
events or omissions giving rise to the claim occurred;
OR
o This part sometimes makes rule interpleader
more appealing to the stakeholder
 (3) a judicial district where any D is subject to personal
jx, if there is no district in which suit may otherwise be
brought.
 Does NOT include stakeholders’ place of residence as
proper for the purpose of the venue
 Injunction is NOT explicitly authorized
 Bond is not required
o Injunctions Against Other Proceedings:
In interpleader suits, the federal court can issue an injunction
(similar to §2361), which enjoins the parties from seeking
judgments on the goods from other state or federal courts.
Statutory Interpleader—apply §1335, §1397, and §2361 together, never
separately—starts a brand new lawsuit (*if 1335 won’t work, we have to look
to Rule 22)
o Subject Matter Jx:
 §1335- minimal diversity- response to “dunlevy” (insurance
case) diversity between two or more adverse claimants —this
grants subject matter jx
 Does not matter that some claimants, or the stakeholder,
may be citizens of the same state
 §1335- All you need is $500 or more
 requires bond of amount to be placed w/the court
o Personal Jx:
 Rule 4(k)(1)(c) and 2361- You get nationwide service of
process (as long as these people are anywhere in the U.S., there
is jx over their person)
o Venue:
 §1397-Venue- lay venue where any claimant resides (do not
use §1391)
o Injunctions against other proceedings:
 §2361- the federal court can issue an order restraining the
parties from issuing any proceeding in any other federal or
state court affecting the property, instrument or obligation
involved in the interpleader action until further order of the
court. Gives personal jurisdiction on all claimants, service of
process anywhere in US, authorizes enjoining of of any other
pending suit, either federal or state Ct.
EXAMPLE of Interpleader
three wives, 1-CA, 2-NV, 3-NY and the NY bank holds the money, and all
wives are suing for the entire sum of money. The bank can use statutory
interpleader (§1335) to protect itself. This makes all wives parties to the
same action, so all wives are bound by the judgment



Discovery:
Requires party to disclose what ‘may use to support claims or defenses’, not what is
not intended to be presented at trial
only through further discovery can parties discover information that is unfavorable
to one another, initial disclosures are limited to involve favorable info
Discovery
Required Disclosure
Rule 26(a)

parties must produce information even if the other side does not ask for it
Three Required Disclosures under Rule 26(a)
 (1) initial disclosures- you are required, without a request from the other side,
to name people and documents with discoverable information that you may
use at trial to support your claim and defense
 (2) experts witnesses- the names of expert witnesses who will present
evidence at trial, must be revealed without a specific request from the other
side. (Rule 26(a)(2)(A))
 (3) everything that you are going to rely on at trial (everything that will be
brought up is known before the trail)
o Witnesses, etc.
Expert Witnesses
Rule 26(a)(2)(B)
- expert witnesses must prepare and sign a report containing “a complete
statement of all opinions to be expressed and the basis and reasons
therefore; the data or other information considered by the witness in
forming the opinions; any exhibits to be used; the qualifications of the
witness; and a listing of any other cases in which the witness has testified as
an expert within the past four years.”
Initial Meeting
- Rule 26(f)—requires parties to meet after the complaint is served in order
to develop a “proposed discovery plan, which includes:
o any proposed changes to the mandatory disclosure required under
Rule 26(a)
o any proposed changes in limitations on discovery
o a description of the parties’ views on the subjects and timing of
discovery
- the meeting should be held “as soon as practicable”
- Rule 16- but must occur before 21 days before the final deadline for issuance
of a scheduling order
- Rule 16(b)- this must be within 90 days after the appearance of the D and
within 120 days after the complaint has been served on the D
Discovery Plan
- Rule 26(f)—the parties must submit a written report outlining the discovery
plan to the court within 14 days of the meeting of the parties
Substantive Scope of Discovery
Relevance
 Rule 26(b)(1)—you can discover anything relevant to a claim or defense of
any party, including the identity and location of persons having knowledge of
any discoverable matter.

o relevance- means reasonably calculated to lead to admissible evidence
 does not matter whether it is admissible, just that it might lead
to admissible information
 ex. hearsay can be used in discovery
privileged information is not discoverable, even if it is relevant
o confidential information between attorney-client information
o spousal privilege
o doctor-client privilege
o Rule 26(b)(5)- says you have to make the claim regarding privileged
information expressly
Limitations on Discovery
Rule 26(b)(2)
- court can limit discovery if:
o the discovery is unreasonably cumulative or duplicative, or is
obtainable from some other more convenient or less expensive
source;
o the party seeking discovery has had ample opportunity by discovery
in the action to obtain the information sought; OR
o the burden or expense of the proposed discovery outweighs its likely
benefit
- **courts have tried to balance both rules by forcing the requesting party,
rather than the answering party, to bear the cost of discovery
- Rule 26(b)(2)(iii)- Cost of discovery is on the producing party
Rule 26(b): Everything that is relevant to the party’s claim is discoverable
EXCEPT:
1.) Attorney-Client Privilege Exception
a. exception cannot apply by showing information is unavailable from any
other source, even after client is deceased (absolute privilege)
b. can be waived by client or by failing to claim the privilege
c. exceptions: cases of criminal or fraudulent activity that client knew or had
should have known were criminal
i. Upjohn v. United states (discovery of internal investigation memos)
attorney client privilege exists to make sure clients make full disclosure to
their lawyer, this privilege will extend to all members of a corporation, not
only those in managerial positions
a. does not protect facts, but communications
 b. two way street: helps client to act, and gives attorney all facts to give best
advice possible
2.) Work Product Exception
 Rule 26(b)(3)- trial preparation materials/work product is protected (not
discoverable)
o Material prepared in anticipation of litigation
 work product need not be prepared by a lawyer
 can be prepared by any representative of the party (a
private investigator, paralegals, secretaries etc.)
o Exception: you can get parts of the work product, if you can show:
 Substantial need; OR
 This information is not otherwise available
o Mental impressions, conclusions, opinions and theories are absolutely
protected
Expert Witnesses
- Three Categories:
- (1) Rule 26(b)(4)(A)- A party may depose any person who has been
identified as an expert by an opposing party and whose opinions may be
presented at trial.
o Any deposition of the expert takes place only after the experts report
has been made available to the deposing party.
- (2) Rule 26(b)(4)(B)- facts and opinions of non-witness experts, whose
opinions will not be used at trial, who have been retained or specially
employed by a party may only be discovered upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other means
o The party seeking discovery must prove the “exceptional
circumstances” that allow them to discovers these opinions
- (3) Informal witnesses- they are not hired, and their opinions will not be used
at trial
o They cannot be deposed
o Neither their name or their opinions are discoverable.
Protective Orders
Rule 26(c)
- if a party believes that proposed discovery extends too broadly, threatens
information that is exempt from discovery or confidential, or is too expensive
or harassing, the abused party may obtain a protective order against the
behavior; imposes an undue burden
o must show substantial need for material
o must show that benefit outweighs burden
o must show that there was no way to get information through less
intrusive means
- this order can bar the discovery or limit it
- Rule 37(a)(2)- If a party fails to make a disclosure required under Rule
26(a), any other party may move to compel to disclosure and for appropriate
sanction- a motion to compel compliance.
Discovery Tools


These can all be used to get information from a party, what can be discovered
from a nonparty?
Rule 26(g) is certification that not for improper purpose
Rule 11 applies to all other documents:
 Deposition-(Rule 30 & 31) can get info from a non-party, but if it is a nonparty, he must get a subpoena or he does not have to be there
o lawyers for all parties involved in the case have the right to be present
and to ask questions
o a lawyer never deposes his own client since he can learn everything
he wants form an informal interview (unless the client is in bad health
or will be out of the country for the trial)
o Rule 30- a lawyer may depose any person, whether or not a party,
who possesses relevant information within the meaning of Rule 26
 all parties to the suit must be given reasonable written notice
of the time and place of the deposition
 limit of seven hours/person for deposition
 limit of 10 depositions for each witness
 these limits can be changed if the lawyer’s agree or by
court order
 Interrogatories (Rule 33)- written answer—can only be sent to parties, 20
days to respond
o written questions sent to a party that must be answered under oath
and in writing
o the person answering has to respond with all relevant information
reasonably available to him/her
o this is usually the first formal discovery device used after the filing of
a lawsuit
o Rule 33- there is a limit of 25 interrogatories
o objections to interrogatories must be stated with specificity by the
lawyer for the party
 Request to Produce Documents(Rule 34)—can go to a party or nonparty (but
the nonparty has to be subpoena or he does not have to obey it)
o a party may request discovery of any documents “including writings,
drawings, graphs, charts, photographs, phone records, and other data
compilations”
o this also accords with changing technology—applies to electronics
data compilations (both current and backup disks)
 Medical Examination (Rule 35(a))—must get a court order to perform this
o Very invasive, so you have to get a court order
o Applies only to persons who have put their physical or mental
condition at issue—not to those who have not
o Witnesses cannot be examined
 b/c they have not waived their right to privacy by putting their
condition at issue

o Rule 35(b)(1)- if the party being examined wants to see a copy of the
detailed written report of the examiner, he should be given a copy.
After it is the delivered, the party who requested the examination (the
discovering party)
o Rule 35(b)(2)- by requesting that report, or deposing the examiner,
the party being examined waives any right to the doctor privilege she
may have had.
Request for Admission (Rule 36)—non-parties only
Expert Testimony:
702)
1. do not testify to underlying facts but as to opinions on those facts
2. necessity of exposure in the discovery process dependent on whether
consulted in formal or informal manner
a. FRCP 26A2:
1. Must give statement of:
i. all opinions to be given at trial
ii. data considered by witness
iii. exhibits to be used
iv. qualifications
v. all cases testified in during past year
2. after disclosure, testifying experts can be deposed by
opposing party: 26b4
3. when informally consulted, are seen as witnesses, as
opposed to experts until retained for trial or in preparation for
trial
b. Ager v. Jane C. Stormont Hospital: (formal v. informal)
Four types of expert witness:
a. those to be used at trial
b. those employed in anticipation of litigation or preparation
for trial but not expected to be used
c. informally consulted but not retained
d. Those from whom information was not acquired in
preparation for trial
status decided on a case by case basis, proper showing for non-expert
witness before trial: the ability of the other party to get information by
other means, exceptional circumstance
c. Questions:
a. First: was expert informally consulted in anticipation of
litigation but not retained or employed?
b. Second: Does an exceptional circumstance exist?
3. must be qualified by the court in order to testify (fed. Rule of evidence
Classified information:
1. If information falls outside protection of privilege or trial court immunity,
remedy to seek protective order
a. more common to restrict promulgation of the information but allow
its discovery
b. balance of judicial interest in efficiency, and public interest that
information be known
Motion for Summary Judgment: FRCP 56
a. insufficiency as a matter of fact, as oppose to a matter of law
b. can also be used where parties agree as to the facts but disagree on their legal
implications
c. can also be used for individual claims in a lawsuit, leaving others to go to trial
d. allows affidavits, interrogatories, admissions and documents
e. does NOT allow allegations on the pleadings: assertions as to what is provable
f. it allows the defendant to address a fatal weakness in the pleadings of the
plaintiff’s case and disprove it
g. partial summary judgment may be granted on individual claims, leaving the
plaintiff to go to trial on the rest of the case
Rule 56(a) – lack of any issue of material fact in the case
Rule 56(b)- Time to file a motion: until 30 days after the disclose of discovery
Rule 56(c)- Procedure
 (1) there is no dispute on a material issue of fact
 (2) the moving party is entitled to judgment as a matter of law
 **must resolve all doubts in favor of the non-moving party
Standard:
 Designed to allow early resolution of cases where plaintiff meets the
minimum burden or pleading, but cannot prove one or more elements of
claim
 Court is trying to weed out cases where there is no need for a trial, they will
simply enter a judgment as a matter of law
 We are saying in MSJ, that there is nothing to decide—if there were something
to decide, it would have to go to a jury
o As long as the non-moving party can show that there is a doubt as to
what the evidence shows, then it must be resolved in his favor, and
the issue must go to trial so a jury can decide
Evidence to Support MSJ:
 The evidence is proffered by the parties, usually consists of affidavits (sworn
under oath, so they are admissible)
o Interrogatories will also work, since they are under oath, they are
admissible
 Rule 56(c) permits reliance on the products of discovery—depositions,
answers to interrogatories or admissions
o one of the prime uses of discovery is to gather information that will be
useful in supporting and opposing summary judgment
o must be the type that would be admissible at trial
 Pleadings will not work as evidence, b/c they are not under oath
o But pleadings may contain an admission (if D failed to deny something,
it will be treated as an admission)
Timing:
 But they are usually made after substantial discovery has taken place.
 Rule 56(f)- allows an MSJ to be denied, or the hearing on the motion to be
continued, if the nonmoving party has not had an opportunity to make full
discovery.
Important Cases:
 Two cases that told the court to start granting summary judgment more
often:
o Whether there is enough evidence supporting the plaintiff’s case that
jury could reasonably decide in Plaintiff’s favor; shifting burdens.
Plaintiff has burden of pleading  burden of production.
o Atickes- D gave evidence and P had to match the evidence; insufficient
summary judgment motion: plaintiff did not have to produce
responding affidavit: where the evidentiary matter in support of the
motion does not establish the absence of a genuine issue, summary
judgment must be denied even if no opposing evidentiary matter is
presented
 a. motion for summary judgment not properly supported
 b. allows plaintiff to rely on the pleadings
 c. issue of whether the moving party had carried its initial
burden of production by producing affirmative evidence
negating an essential element of the plaintiffs claim
o On the basis of weakness of the plaintiff’s case:
o Celotex- D moved for SJ b/c P had no evidence to back up her claims
(insufficient evidence), this puts the ball in the P’s court, and show her
evidence that she did have to support her claim—P had to satisfy her
burden of production (b/c of shifting burdens, a D may move for SJ
solely on the weakness of the P’s case—but a P cannot do this. A P
must rely on the strength of its own case)
 a. issue of whether the nonmoving party has established
evidence sufficient to meet its burden of production, and
whether the nonmoving party has enough evidence to take the
matter to trial
 b. job of moving party to show that there is no remaining issue
of material fact

Court still has the discretion to decide SJ
o MSJ is rarely granted for the party with the burden at trial (tougher
for a P to win on MSJ than D)
o It is tougher in tort than in contract
o RULE: you never resolve disputes of fact on summary judgment
 Ex. P is crossing the street and gets hit by a car driven by D, P
claims he was in the cross walk, with a green light, and D ran a
red light, so P had the right of way. D says he had the green
light, and the P was jay-walking, and there was nothing he
could do. D moves for summary judgment, showing affidavits
from trustworthy people that P was in the wrong. P better
produce some evidence, otherwise the only evidence is from D.
If P brings affidavits from a drug-dealer, as soon as you see a
disputable issue, you must deny summary judgment right then.
It does not matter the character of the witnesses.
How to contest MSJ?
 The way to contest an MSJ, is to show that there is a genuine issue of material
fact, by presenting evidence to prove this
 Properly Supported Motion v. Sufficiently Supported Motion
o Proper- the non-moving party’s response must meet the formal
requirements of Rule 56
 Rule 56(e)- a response to a properly supported motions
consists of affidavits, depositions, and the like “made on
personal knowledge,” setting forth “such facts as would be
admissible in evidence” (no hearsay), and showing
affirmatively the competence of the witness to testify.
o Sufficient- the materials must be sufficient to give rise to a “genuine
issue of fact”
Burdens of Pleading and Production
 Burden of production- requires the P to produce evidence at trial that meets a
minimum standard of “sufficiency”
o If P does not introduce sufficient evidence on each essential element of
its case, the judge need not permit the P’s case to go to the jury.
 Instead, the judge will grant judgment as a matter of law—Rule
50
o Judge asks: whether or not there is sufficient evidence favoring the P
that a reasonable jury could find in P’s favor? The burden of one party
to establish the prima facie case
 Who has which burden?
o Ask yourself: who has to plead the affirmative?—If no evidence at all
is produced on this issue, who would lose?—that person has the
burden of production
o Shifting the burden—this can shift back and forth (when the parties
are exhausting all relevant evidence)
 Burden of Persuasion (same as “Burden of Proof”)
o Levels of “Proof”
 Preponderance of the evidence
Clear and Convincing
Beyond a Reasonable Doubt (highest level of proof—more than
90%)
o This burden never shifts
o This will never apply in MSJ


Default judgment/default: rule 55
1. 55A: Default
a. Indication that defendant has failed to plead or otherwise defend
b. Does not terminate the case
c. Bars defense on further issues of liability
2. 55B: Default judgment
a. Actual entry of judgment granting relief against defendant
b. Res judicata consequences
c. May be set aside for good cause, in accordance w/ 60(b)
Judgment as a matter of law: rule 50
1. Directed Verdict: 50(a)- Insufficient evidence to support claim occurs
during trial; when burden of production is not met
a. Pre-verdict motion
b. Challenges factual sufficiency of other parties case
c. Defendant may file first, then plaintiff once defendant rests
d. MUST BE FILED BEFORE JNOV
e. If motion fails, the case will go to the jury
f. Alleges that other party has failed to make a case by preponderance
of the evidence
i. If reasonable minds can differ on the result, the case should
be for the jury and not the judge: federal standard
i. Also allows consideration of the moving party’s
uncontradicted and unimpeached evidence
ii. Judge must assume the truth of all evidence provided by the
nonmoving party
g. Where the verdict is such that the party would be entitled to a new
trial if it were found to be true: federal rule
2. Judgment not withstanding the verdict: 50(b)- for overturning a
verdict that reasonable people could not reach
a. Post verdict motion
b. Jury gets legal issue subject to court revisiting the issue before final
verdict
c. May be accompanied by FRCP 59: motion for a new trial where the
verdict is against the ‘great weight of the evidence’
d. If summary judgment is denied, case may still have insufficient
evidence to survive rule 50 motion (adickes)
e. No later than 28 days later
f. The court can revisit the issue after the jury has decided, to decide
the legal issues for itself
i. Simblest v. Maynard: (firetruck collision, lying plaintiff)
JNOV is appropriate where there is no dispute of the facts that
would lead the necessity of the case going to the jury- plaintiff’s
testimony inconsistent w/ all other witnesses- true in cases
where existence of facts comes into question
a. question of law
b. qualified favorable evidence test:
a. evidence favorable to the non moving party
b. evidence unfavorable to the opponent that is
not directly contradicted
ii. Sioux city v. Stout: (RR turntable injury of child) where
there is even slight evidence, it is for the jury, and not the judge,
to establish the cause of negligence, in this case, JNOV is
inappropriate: true where there is a deduction or inference to
be drawn from the facts
a. question of fact
i. where there is enough evidence to support jury
verdict, that verdict must stand, even if the court
does not agree
f. Issue of judicial recusal:
i. Liljeberg v. Health Services (judicial rescusal LSU) judge
must recuse himself to avoid even the appearance of
impropriety, where judge either knew or should have known
a. 455: any judge of the United States shall recuse himself
in any proceeding where his impartiality may reasonably
be called into question
b. Judge will hear the claims of questioning his
impartiality himself
c. Exceptions: substantial judicial time, divestation of
interest, unless the interest is one that could be
substantially effected by the outcome
d. Extrajudicial source doctrine: recusal will only result
from proceedings taking place within the courtroom
Settlement and pretrial conference:
1. settlement:
a. between two parties without trial
b. either for monetary damages or injunction
c. decision to settle attributed to client, unless client minor or
incapacitated
d. FRCP 16: allows for alternate dispute resolution as the purpose of
the pretrial conference
e. FRCP 68: allows a defendant to serve offer to allow judgment on
specified claims before trial
2. Alternate dispute resolution:
a. ADR ACT:
a. requires all district courts to put into affect some form of
alternate dispute resolution
b. method left to the discretion of the district court
c. goals: to reduce cost and delay and improve the overall
quality of justice
b. Kothe v. Smith: (settlement amount not told to defendant)
judge’s role is not to force the parties to settle, only to encourage
settlement
c. In re Atlantic Pipe co.(aqueduct pipeline burst)sources of judicial
authority for mediation, none of which can be used by court in this
case:
a. local rules
b. applicable statutes
c. FRCP: only applies where the local rule is present
d. inherent power of court:must be used reasonably
Trial:
1. After plaintiff rests, defendant may move for DV or JMOL
2. after defendant rests, plaintiff may then move for DV or JMOL
3. must file joint pretrial statements before trial: 26 A3
4. may only be altered to prevent manifest injustice: 16E
5. party waives a right to trial by jury if it is not timely demanded: 38
Seventh amendment:
a. jury trial of all criminal cases in federal courts
b. right to trial by jury shall be ‘preserved’ not ‘established’
c. use of the historical test: difference between law and equity
1. merged by FRCP 2
2. law: money damages will make whole
3. equity: what should be done
a. request for remedy other than monetary damages:
injunction or specific performance
b. may lead to repeated litigation on issue of money
c. where the remedies at law are considered inadequate
d. first: pre-merger custom, second: remedy sought, third:
practicalities of jury
d. does not apply to suits against the federal government unless congress
waives sovereign immunity
4. American Ins. Co v. Stewart: (insurance policy) allowed insurance
company to bring action due to being hands tied in suit at law:
cancellation of policy is remedy at equity: issue of collateral estoppel
to be precluded
5. Beacon Theaters v. Westover: (theater showing same shows) to
prevent the issue of collateral estoppel being applied during jury trial:
allowed common issues of law and fact to be tried by the jury first to
prevent issues of collateral estoppel
a. established declaratory judgment as a legal remedy
a. 2202: declaratory judgment
1. is there a real dispute or controversy between
parties?
2. does the plaintiff have an action for coercive
relief against defendant?
3. if does not arise under federal law, it is
possible to look at defendant’s claim for coercive
relief against plaintiff, to access the federal court
to decide
4. passes well pleaded complaint rule
6. Younger v. Harris: (leaflets at mall) court abstained from hearing
the case, allowing CA to interpret their own statute and its
constitutionality
7. Dairy Queen v. Wood: (1338 jurisdiction) complexity issue: trial
by jury is not necessary where the court can determine meaning of
patent: question for judge, not jury
a. Markman v. Westview: (patent meaning) the judge must
construe the meaning of the words of patent for the sake of
uniformity
8. Ross v. Bernhard: (shareholder derivative action) undermines
historical test looks at the substantive rather than procedure: upheld
jury trial for all damage claims
9. Chaffeurs v. Terry: (collective bargaining agreement violation)
fair representation construed as legal question: damages are equitable
when they are restitutionary, otherwise remedy at law
10. Curtis v. Loether: court upheld jury trial in title seven action
11. Tull: (violation of clean water act) issue of liability for jury,
amount of damages, for judge: congress created liability, but did not
create the proceeding for the cause of action to take place
12. Atlas Roofing: (OSHA) the seventh amendment sought to preserve
jury trial on established causes of action at common law, did not
purport to establish jury trial where there was none before
a. distinction between private and public right: where public
right
is at stake, congress is free to regulate: connection to
performance
of constitutional functions of executive or legislative department
b. where the government is involved in its sovereign capacity in
regulating a dispute: administrative, but not legislative courts
c. different from Tull: created proceeding to address liability
d. in actions at ‘law’
Sixth amendment:
a. criminal trial specification in federal court
b. fourteenth amendment mirrors in state court
c. fifth amendment: right to indictment by the grand jury, protection from
discrimination by federal government
a. Edmundson v. Leesville (preemptory challenge to eliminate
black jurors) not the private racially biased attitude, but the credit
given to that attitude by the court is violative of the constitution- the
court must have evidentiary measures to back up the preemptory
challenge that takes into account all relevant circumstances
d. jury must be drawn from a fair cross section of the community in criminal
cases
e. People v. Currie: (underrepresentation of black jurors on panel) in
order to establish prima facie case of underrepresentation, must show:
distinctive group, not fair and reasonable selection, systematic exclusion
from process
a. failed on third prong: neutral selection procedures that resulted in
skewed representation through no fault of selection process
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to
be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
The Jury:
1. four requirements for challenge of jury instruction:
a. was not covered by another instruction
b. instruction was a correct statement of the law
c. issue was properly before the jury
d. failure to instruct was prejudicial
2. Jury may testify about:
1. extraneous prejudicial information brought to jury’s attention
2. whether any outside information was improperly brought to bear
upon the juror
3. whether there was a mistake entering the verdict on the verdict
form
f. Tanner: (jurors on drugs) jury testimony not admissible: more important
that the judgment is final than correct
i. Krouse v. Graham: CA case reached opposite result
ii. jury decisions can only be analyzed w/ respect to outside influences
2. General v. Special Verdict:
a. 49b: allows the jury to submit a general verdict w/
interrogatories as to different facts
Post trial Motions:
1. Operate to control jury without reviewing its motions
2. demonstrates that the evidence that was presented did not warrant the
verdict awarded
A. Motions available:
a. FRCP 59: motion for new trial
1. on grounds of insufficiency of evidence
2. verdict winner cannot appeal until after new trial has
gone to final judgment
b. FRCP 50(b): JNOV, JMOL
1. verdict winner can appeal immediately
2. granted when against ‘great weight of evidence’
i. Spurlin v. GM: (school bus crash) abuse of
discretion in granting JMOL: no matter how
small the issue of fact, the jury is entitled to
decide upon it, regardless of court’s agreement
c. FRCP 58: entry of judgment, operates in conjunction w/
motion for new trial
1. a new trial can be awarded for any reason that a new
trial has been heretofore awarded by the court
2. determines the timing of post trial motions
Long arm statute: 4K1:
a. long arm statute of the states for service of process
b. 4k: authorizes federal courts to take jurisdiction in other limited situations
c. interpleader: 4K1C
d. federal question cases: 4K2 for aggregation of contact w United States as a
whole but whose contacts would not suffice to support personal jurisdiction
in the courts of one of the states
e. if state long arm allows jurisdiction, so will the federal court: 4k1a
RES JUDICATA—CLAIM PRECLUSION
Res judicata forecloses relitigation of claims that were or could have been raised in a
prior action if these elements are met:
 Identical parties
 Prior judgment rendered by a court of proper jurisdiction
 Prior judgment must have been final and on the merits

Plaintffs raise the cause of action in both suits
[merge facts with rules]
Since there was a final judgment on the merits, all of the claims are merged into the
judgment.
Here, the plaintiff won [his/her] claim against the defendant so that claim and
related claims are merged into the judgment. This means that the plaintiff, may not
bring those claims in future litigation against the same defendant.
Here, the plaintiff lost her claim against a defendant so that claim and related claims
are merged into the judgment. This bars future litigation brought by the plaintiff
against the same defendant.
Even if the decision was incorrect, the judgment is final so the [party] should have
appealed rather than re-filed in another court.
COLLATERAL ESTOPPAL—ISSUE PRECLUSION
1. Final Judgement on the Merits
2. Identical Issue
a. Litigated
b. Decided
c. Important
3. Party against who the plea of collateral estoppal is asserted was a party to
the prior action or in privity with the party
a. Privity = proprietary interest or is in control of the prior litigation
b. Marriage does not necessarily create privity, however, in CA
community property applies so the spouse would have a proprietary
interest.
This claim will be precluded under the doctrine of collateral estoppal which bars
relitigation of an issue of fact or law that has already been decided.
Because there was a judgment for the plaintiff, all later plaintiffs may use this
judgment for their benefit because the defendant has already had his day in court.
However, if there is a judgment for the defendant [he/she] cannot collaterally
estopp because the plaintiffs were not a party to the prior litigation.