Updated 12/5/08
Rule & Statute Table
Rules
Rule 4 – Commencing action; personal jurisdiction
4(m) – plaintiff must serve defendant within 120 days
Rule 8 – General rules of pleading
8(a) – notice pleading; plain statement
Rule 9 – Special pleadings
9(b) – fraud pleading standard
Rule 11 – Sanctions
Good faith pleading with discovery
Rule 12 – Defenses and objections; motion for judgment on the pleadings
12(b) – 120 days limit to file motion for dismissal after service; challenge jurisdiction
12(e) – defendant may ask for a more definite pleading statement
12(h) – subject matter jurisdiction is not waive-able
Rule 13 – Counterclaims & cross-claims
Rule 14 – Third-party practice
Rule 15 – Amended and supplemental pleadings
15(a) – amendments
15(b) – amendments must conform to evidence
15(c) – limit by which relief must be entered
Rule 19 – Required joinder of parties
Rule 23 – Class actions
Rule 24 – Intervention (companion to Rule 19)
Rule 26 – Duty to disclose; general provisions governing discovery (protective order & work product privilege)
26(b) – attorney-client privilege pertains to legal advice, not anticipatory product
26(c)(1)(g) – allow trade secrets to be available for protective orders
Rule 38 – Right to jury trial; demand
Rule 52 – Findings and conclusions by the court
Statutes (Title 28)
§1331 – Federal question
§1332 – Diversity of citizenship; amount in controversy; costs
§1367 – Supplemental jurisdiction
§1359 – Parties collusively joined or made
§1404 – Change of venue
§1441 – Actions removable generally (removal)
§1652 – State laws as rules of decision (Rules of Decision Act)
§2072 – Rules of procedure and evidence; power to prescribe (Rules Enabling Act)
1

TABLE OF CONTENTS
I.
General Overview of Civil Judicial
System
A.
Trade-off System
Four principles
B.
Access to Courts
Contingent fees
American rule
C.
Tracing the Life of A Case
Filing
Response
Summary judgment
Trial
Additional rules
Class action
Appeals
Three important points about the civil system
II.
Jurisdiction & Notice: Pennoyer to
Piper Aircraft – Over whom does the
court have power?
A.
Personal Jurisdiction
General rule
1.
Minimum Contacts &
Statutory Power
2.
Due Process
Standard
Venue
Notice
B.
General Jurisdiction for Corporations
General rule
Opportunity to be heard
III.
Subject-Matter Jurisdiction &
Diversity: Mas to Borough - Where
may cases be brought?
1.
Subject matter jurisdiction
2.
Diversity & Amount in
Controversy
3.
Supplemental Jurisdiction
4.
Removal
History relating to federal court system
IV.
Pleading and counter-claims: Denny to Heyward-Robinson – How do I
plead a case?
1.
General rule on pleading
2.
General rule on answer
3.
Amendments and Relating Back
4.
Counter-claims
V.
Discovery and Protective Orders:
Marrese to Hickman – What proof does a case require?
1.
Discovery
2.
Protective Orders
3.
Work Product Privilege
VI.
Trial Issues
1.
Applicable Law
Authority
Procedure
2.
Res Judicata and Issue Preclusion
Issue Preclusion
Res Judicata
3.
Appeals on Jury Verdicts
4.
Adjudication Without
Summary Judgment
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I.
GENERAL OVERVIEW OF CIVIL JUDICIAL SYSTEM
A.
Trade-off System
1.
Most rules are not “neutral” in that they generally help one side more than the other
2.
Rules are trans-substantive or should work for different types of substantive law claims litigated before federal courts.
3.
Tradeoffs are not fixed but are “re-cast” as circumstances change.
4.
Rule-type tradeoff between bright-line rules and fact-based ones (ex. defendant required to respond within specified time whereas plaintiff may amend complaint insofar it does not prejudice defendant) (in itself this contains a tradeoff between greater certainty and fairness).
B.
Access to Courts
General rule: two elements provide for reasonable court access 1) contingent fees and 2 the American
Rule .
1) Contingent fees: A risk-adverse option for plaintiff that allows lawyer to collect only if suit prevails.
Believed to incentivize case because fee aligns attorney’s and plaintiff’s interests. Special rules exist to guide ethical conduct. Problems do arise if a lawyer is spending a disproportionate amount of time on complex cases. Criminal law and divorce cases are exceptions to this payment system. Attorneys may also be paid hourly or via a fixed charge.
2) American Rule: Each side pays its own legal fees. Contrasts with British system which requires “loser” to pay opponent’s fees. Deterrent to litigating legitimate and important cases.
C.
Tracing the Life of A Case
Judicial system is designed to eliminate surprise and rule on merits of a case.
1.
Filing a.
Plaintiff complains and defendant responds (inc. affirmative defenses). Requirements to file lawsuit are minimal but become increasingly difficult through the process. b.
Plaintiff’s lawyer must in good faith investigate claim to ensure that it could reasonably be proved vis-à-vis discovery (Rule 11) (designed to reduce frivolous lawsuits; revised 80s-90s due to excessive sanctioning against plaintiff-clients; rule attempts to balance between filing rights and frivolous suits). c.
Complaints may be liberally amended to reflect changes or new information.
2.
Response a.
Responds to plaintiff’s claims and states affirmative defenses. b.
Often recommends dismissal on 1) subject-matter jurisdiction/technical grounds or 2) failure to state claim.
3.
Summary Judgment
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a.
Decided on “paper record.” b.
Determined if claim complains on “genuine issue on material fact” – actual dispute with evidence on both sides. Affidavits (views of case) are submitted with sworn statements of fact. c.
Precedes fact-finding stage (discovery or later, trial).
4.
Trial (only about 2% cases reach this stage in federal courts) a.
Right to trial by jury afforded by 7 th
Amendment is available under common law. b.
Many state statutes are analogous to common law allowing for right to jury trial. c.
Must invoke right within 10 days (Rule 38) and cannot reverse once invoked (plaintiff-consent may be necessary). d.
Jury selection. Judge ask prospective pool questions, and individuals may only be dismissed by cause (narrowly defined, ex. perennial challenges, unfriendly, etc.). Selected jurors are sworn-in. e.
Opening statements. Begin with plaintiff; parties share what side hopes to prove in case. f.
Witnesses. Asked non-leading questions by each side followed by cross-examination and re-direct questioning. Judge rules on objections to testimony. g.
Plaintiff closes case. Defense may move for judgment (asking judgment to rule on plaintiff’s case as a matter of law). Defense brings its case. h.
Defense closes. Jury is given instructions and sent away to deliver verdict.
5.
Additional rules a.
Enable or sometimes require additional claims to be made. Counterclaims, for example, are compulsory (use or lose) or permissive (allowable). b.
Bring-in third parties or in-pleading may be allowable (Rule 14); or parties may actively join via intervention (Rule 24) or joinder (Rule 19).
6.
Class action (two types) a.
Injunctive relief. “B2” class action.
1. Least controversial type. Exists to ensure protection against something.
2. Sometimes decided on declaratory judgment (bypass class action) to achieve same goal.
3. Pursued when issue is legally moot or problems have arisen from previous judgment enforcement (ex. Brown v. Board decisions). b.
Monetary relief. “B3” class action.
1.
Issues of fact and law are in common (with each other).
2.
Must be “typical.” (Rule 23(a)).
3.
Adequacy of representation (of class?).
4.
Lawyers really drive litigation due to previous experience and ability to provide up-front costs.
5.
Once class is certified, settlements and fees must be reported to court. Difficult to bring same case again upon class certification.
6.
Any class member may “opt-out” and bring case on his/her own.
7.
Lawyers’ fees must be approved by court.
7. Appeals
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a. Must be after final judgment.
b. Based on trial record (no new information is permitted). c. Judgments reviewed on lenient standard (except failure claims).
8. Three important points about civil system a. Rules have purpose and are NOT neutral b. Rules are part of the system. If one rule is changed it affects others. c. Trade-offs. Procedural tradeoffs concerning form of rule (specific to broad). Timeliness of intervention (flexibility of standard to achieve justice).
II.
PERSONAL JURISIDCTION
Pennoyer to Piper Aircraft – Over whom do courts have power?
A. Personal Jurisdiction
Personal jurisdiction involves two distinct parts to service: power of authority and notice. Most jurisdictional problems arise when court may assert personal jurisdiction over a defendant not found within a state.
Pennoyer v. Neff (63)
Original case was between Mitchell and Neff; Mitchell, lawyer, sued Neff for outstanding lawyer fees. Neff was out-of-state resident, was never served, though summons was published via newspaper. Default entered against
Neff. Neff’s in-state land was attached to judgment. State auctioned land but Mitchell produces “straw man”
(Pennoyer) allowing him to net-proceeds, more than judgment. Neff brings suit against Pennoyer for land claiming Due Process violation because state did not have personal jurisdiction and did not provide proper notice. Court held that “in rem” jurisdiction must be completed at the beginning of case.
Personal notice is not sufficient by publication alone but may be given by attaching to property.
Morrison critique: Seminal case established that jurisdiction may be determined by 1) domicile 2) physical service 3) consent to appeal 4) attachment of property. Moving a claim to another state does not violate Due
Process because full-faith and credit applies to valid judgments. Establishes old rule for personal jurisdiction as modern cases present newer issues, however, some approaches are still used today.
General rule: State courts may assert jurisdiction over any person who is 1) has “minimum contacts” in state or constitutional statute asserts jurisdiction and 2) only if state forum provides due process to defendant.
1.
Minimum Contacts & Statutory Power
Minimum contacts test is also known as the Shoe standard. Although case addressed corporations, the Shoe standard would become the prevailing jurisdiction rule for all entities.
“Minimum contacts” has evolved into a balancing, policy-oriented test considering: a.
Whether a defendant purposefully availed him or herself into forum; b.
Forum was foreseeable to defendant; c.
Defendant has enjoyed benefits or privilege of forum.
International Shoe Co. v. Washington (76)
Int’l Shoe was incorporated in DL and based in MS. Hired one salesman in Washington. Washington tried to impose unemployment fund taxes on corporation and Int’l Shoe brought suit. Int’l Shoe made special appearance claiming that notice to salesman was not proper service and it was not subject to taxes because it was not doing business in Washington. At issue was the right to sue and taxation under Due Process Clause.
Court held that business activity or presence in a state gives state courts jurisdiction.
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Morrison critique: Case established important “minimum contacts” test which judged the quality and nature of business activity. “Presence” was an outmoded jurisdictional model for corporations. Int’l Shoe left a lot of questions about test unanswered that would be debated in future rulings. (See WWV & Asahi.)
Statutes (also known as specific jurisdiction) may also grant jurisdictional power. A court must determine if a statute is applicable, and if so, whether it is constitutional. Federal courts may utilize either type in order to obtain jurisdiction over a non-resident defendant. The two types are: a.
Long arm statutes specifically authorize state courts to exert extraterritorial jurisdiction over defendants who meet the conditions set out in statute. b.
Attachment statues authorize state to seize defendant’s property and attach it at the beginning of the case.
Hess v. Paloski
Plantiff, PA resident, driving to MA, is recklessly driving and hits defendant’s car, causing injuries. No personal service was made nor did plaintiff have property in MA. Plaintiff argued Due Process violation under 14 th
Amendment. Jury found for defendant. MA statute 1) explicated implicit consent of driver passing through jurisdiction and 2) appointed registrar for non-residents. Issue was whether MA statute contravened Due
Process Clause? Court held that statute did not because it limited device to highway accidents, and required notice copies to be sent to non-residents. Determined residents and non-residents were put on “equal footing.”
Morrison critique: Court conflated authority and notice elements. How on same footing if a state citizen could be personally served and a non-resident received notice in mail? He believed to ultimately be a proper ruling because statute is “differentiation not discrimination.” Practical limitations exist and court attempted to preserve state judicial authority.
Also see Keeton v. Hustler Magazine (104) in which extension of Hess ruling was made. “Random, isolated or fortuitous presence” is not enough to establish jurisdiction under a long-arm statute where the state did not have a compelling interest and forum was not fair to defendant.
2.
Due Process a.
Due Process Jurisdictional Standard.
Supreme Court adopted “ fair play and substantial justice”
as constitutional standard for in rem (personal) and quasi-in rem jurisdiction under Shaffer. This meant that
1) presence of intangible property alone was not sufficient to claim jurisdiction (did not meet Shoe standard) and 2) if property is not related to case, it alone is also not sufficient to claim jurisdiction.
Most in rem cases involve real property, where the state’s traditional interest in regulating all matters relating to land is well-recognized.
Shaffer v. Heitner, S. Ct. 1977 (147)
Heitner, a Greyhound stock-owner brings suit against 28 current and former company officers (company based in Arizona and incorporated located in Delaware). He alleged that officers violated their fiduciary duties when found liable for anti-trust suit in Oregon and moved to sequester property (stocks) in Delaware. Defendants made special appearance claiming no jurisdiction because they did not have “minimum contracts” so that property could not be attached to suit. Supreme Court reverses Delaware high court’s decision allowing attachment for state interests. No minimum contracts and no statute actually linked corporate fiduciaries to property. Court held unfair forum for defendants, in which DL court conflated in rem and in personem tests.
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Morrison critique: Case resembles Pennoyer but by now Int’l Shoe has become “good law.” As it turns out state statute was poorly written to be under-inclusive. General rule remains that real property informs jurisdiction with relation to cause of action. b.
Venue
Venue is a statutory requirement designed to regulate the flow of judicial business within a particular court system and to identify a convenient forum for the parties to litigate their dispute.
We assure personal jurisdiction and in few circumstance we may disturb plaintiff’s choice. Plaintiff is limited in his or her choice of venue by Article 3. Court must balance plaintiff’s choice interests with defendant due process. Defendant remedies include transfer or dismissal. Transfer may be good for the system, promoting efficiency, as well as joining defendants across states. Transfers tend to be heavily fact-dependant.
Hoffman v. Blaski (341)
Texan defendant attempted to transfer case to plaintiff’s home state (Illinois), although plaintiff preferred case tried in Texas. Transfer not allowed because state cannot “transfer” cases to another jurisdiction if it is wellsuited. Plaintiff maintains choice unless special circumstances apply or poses hardship on defendant or otherwise inefficient venue.
Morrison critique: See § 1404(a) is clear that venue transfer is based on convenience c.
Notice
Traditional notice requires that a party be physically present in jurisdiction and being served there. Domicile and defendant’s consent usually defines proper notice. Modern notice weighs “contacts” to substantial law (See
Hess.
) Statute or rule is required for notice, although the actual statute or rule may not secure Due Process depending on the circumstances (See Mullane).
Rule 4 sets out general rules for federal notice, and authorizes federal courts to make use of applicable state law methods. Three types of service:
1.
Actual service: in-hand delivery of summons.
2.
Substituted service: authorized by statute but usually entail registered mail or in-state denominator (with mailed copy to defendant).
3.
Constructive service: by publication.
Burnham v. Superior Court, S. Ct. 1990 (160)
Burnhams were married for nine years and had two children in New Jersey. Ms. B moved to Califorinia with children. Mr. B is served in California while on business and visiting children. Mr. B claims that divorce cannot take place in California because state did not have jurisdiction over him. Made special appearance in California but state courts denied motion since he had been personally served. Supreme Court affirmed ruling stating that physically present defendants cannot be treated like absent ones. If able to be in state, he could presumably return, unless he indicates significant hardship. Majority believes that presence rule is so fundamental that it cannot be altered without changing all jurisdiction rules.
Morrison critique: Concurring opinions arrived at same conclusion but wanted to allow some flexibility for extraordinary circumstances in which minimum contacts may play a part. Morrison did not appreciate Scalia’s traditionalism and literal application.
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Mullane v. Central Hanover Bank (183)
Number of investors secured a common trust that was managed by Central Hanover. New York Banking Law required a trust review every three years to update beneficiaries. Law created “special guardians” for income beneficiaries in which they were to receive notice and decree if executed by court. Central Bank did not contact out of state beneficiaries and kept money. Suit followed. Separate issues jurisdiction power and notice.
Jurisdiction issue involves all beneficiaries in which “minimum contacts” or other tests are not used. Practical decision to allow jurisdiction. Regarding notice, personal service is impossible and publication is not useful.
Statutory mail notice is adequate but it is minimal. More notice is desired.
Morrison critique: Further decisions ( Dunsebery v. United States , 193) used Mullane to advance standard of
“best notice possible.” (Prisoner never received notice.) d.
Opportunity to Be Heard
Authority and notice must be given in a reasonable time to provide meaningful opportunity to contest. Notice must be realistic (See Fuentes on pp 221), not theoretical, heavily fact-dependant.
B.
General Jurisdiction for Corporations
General rule: modern approach utilizes Shoe standard in which “minimum contacts” must exist for court to exert judicial power. Courts developed two proxies for corporate domicile 1) place of incorporation and 2) primary place of business, in which general or specific jurisdiction may apply (latter is easier under state statute).
Corporations are subject to “national jurisdiction,” which highlights reality that a venue may be a constitutionally convenient venue but not actually convenient depending on the circumstances. Time and costs must be taken into account as well as the legitimate interest of others waiting in line.
Worldwide Volkswagen v. Woodson (94)
Robinsons’ vehicle catches on fire in Oklahoma after purchase in New York (Seaway distributor). Filed product liability suit in OK against Seaway, Audi (national importer),Volkswagon (importer) and World Wide
Volkswagon (manufacturer). At issue is whether OK “long-arm” statute can avail WWV and Seaway which are based in New York. Majority rejected claim that car could be driven anywhere and thus subjected defendants to statute. Relies on International Shoe “minimum contacts” test and instant case did not meet test. Brennan dissented arguing that states had compelling interest in having statutes, and that defendant safeguards are not necessary in era of new commerce. Dissent primarily concerned with plaintiff convenience.
Distinguish from Burger King v. Rudzewicz (108) (debtor franchise sues BK for bringing suit in FL, not
Michigan) in which case did not reach constitutional threshold (warranting protection) because franchise was governed by a FL-law contract and venue was foreseeable . Rudzewicz’s due process claim was not sufficient because defendant still maintained option to change venue.
Asahi Metal Industry v. Superior Court (117)
Original suit between family and several defendants after car accident from faulty parts. Cheng Shing (tire manufacturer) sues for indemnity against Asahi (tube-maker). CA Supreme Court reinstated case believing it had a state interest in protecting consumers. US Supreme Court disagreed. Any state court must extend jurisdiction over international parties very cautiously. Did not appear to have substantial connection, minimum contacts or have purposefully directed themselves to forum.
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Morrison critique: Two parts to holding, IIA & B. A (4-4) and B (8-1). Part A focuses solely on defendant.
Part B includes narrower reading looking at all parties and facts. Close decision, but broad consensus that it is not enough to look at defendant’s stake when undergoing jurisdictional analysis.
In some cases, a plaintiff may not be able to sue all defendants but enough defendants to recover. (See Piper
Aircraft v. Reno on pp 349). Technological contacts are discussed in Bellino v. Simon (135).
III.
SUBJECT-MATTER JURISDICTON & DIVERSITY
Mas to Borough – Where may cases be brought?
1.
Subject Matter Jurisdiction
The Constitution provides for federal court jurisdiction whenever a case “arises under” federal law (Article III).
Its enabling federal statute issued by Congress is §1331, in which federal courts may take jurisdiction over any civil action arising under the Constitution, laws or treats of the United States. Under Article III in the US
Constitution, federal courts have limited jurisdiction to decide on subject-matter questions concerning federal law. Subject matter jurisdiction cannot be waived. Rule 12(h).
Federal court jurisdiction can be invoked under §1331 only when:
1) it is the statement of the plaintiff’s claim
2) properly pleaded (well stated claim rule) and
3) shows that it is based on federal law.
Potential advantages to seeking forum in federal courts:
1) Federal rules have better rules.
2) Lawyers prefer rule uniformity.
3) Federal judges are appointed, not elected.
4) Federal courts have broader jurisdiction.
5) Avoid local prejudice.
The standard for federal question jurisdiction is that it must be a basic element of the plaintiff’s cause of action
(not a collateral issue or an anticipatory defense, See Louisville & Nashville R. Co. v. Mottley . The Court has also interpreted the constitutionally language as meaning the federal question must be an “original ingredient” in the case (even if it is not a legal issue) ( Osborn v. Bank of the United States ).
Louisville & Nashville Ry. v. Mottley (273)
Husband and wife are injured on railroad due to railroad negligence. Railroad issues free passes for life as part of settlement. Railroad later denies passes because of federal law passed that forbade “free” transportation along railroad. Defendant claims that federal court is improper venue and Supreme Court agrees. Original cause provided no diversity or suit “arising under Constitution.” Court holds that anticipation of a defense is not enough.
Osborn v. Bank of US, 1824 (271)
Bank brought suit against Ohio tax auditor who broke into bank to collect taxes. Court ordered money to be returned but denied subject matter jurisdiction. It held that Bank maintains right to sue and that all federal entities should enjoy subject-matter jurisdiction.
Morrison critique: Language of holding is too broad. Instead it should refer to federal entities with federal actions. Introduces well-pleaded complaint rule in which claim itself must be based on federal law; plaintiff is master of complaint; and if federal law is applicable it must be pleaded if it displaces state law.
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In order to use the federal courts as a forum, the plaintiff must determine whether the federal courts have been given concurrent jurisdiction with the states over the particular controversy. In some cases, federal courts have been given exclusive jurisdiction over actions based on patents/copyrights (§1338) and bankruptcy (§1334).
Conversely, probate (contracts) and divorce actions are within the exclusive jurisdiction of state courts.
Congress granted power to Supreme Court to issue procedure rules (Rules Enabling Act § 2072).
Various committees were setup to produce proposals. Supreme Court approves proposals and passes them onto
Congress. Congress must approve proposals by certain date or they become law. There have been major changes in the law over the years: discovery is allowable, plaintiff pleadings were liberalized, both sides may move for summary judgment, class actions were expanded, and broader rights to appeal were established.
.
2.
Diversity & Amount in Controversy
Diversity
Article III, Section 2 of the Constitution provides federal jurisdiction over cases involving citizens of different states (in addition between citizens of a state and aliens) (enabling statute, §1332). Within a diversity case, state law applies.
No jurisdiction is provided for actions between two aliens or when one of the parties is a United States citizen but without state citizenship.
The Supreme Court has held that complete diversity is required. Diversity is determined at the time the action is commenced; the federal anti-collusive jurisdiction statute (§1359) attempts to deter coercive tactics.
Standard for citizenship is domicile, where a person is
1) physically present and
2) intends to make residence one’s permanent home. §1332(c)(1) enumerates corporation citizenship standard
(incorporation and principle place of business).
Mas v. Perry, 1974 (255)
Mr. and Mrs. Mas brought suit against creepy landlord, Perry, who spied on them in rented room. At end of appeals process Perry claims that court did not have diversity jurisdiction over plaintiffs. Held that Ms. Mas’s jurisdiction was not in Louisiana but Mississippi while Mr. Mas was an “out of state” citizen as an alien; diversity sufficient to allow previous holdings to stand.
Comments from Notes: Some courts have ruled minimal, not complete diversity is all that is constitutionally required. DJ is also unaffected when aliens are on both sides are from same country. Overseas territories are considered citizens or subject of foreign state for diversity jurisdiction.
Amount in Controversy
Federal statute also requires that diversity cases reach a minimum “amount in controversy” of 75K (regardless of subject-matter) and that complete diversity exists. District Court usually gives benefit to person seeking relief, showing leniency at to avoid throwing out meritorious cases.
In suits seeking injunctive relief, amount in controversy is typically established by looking at the cost to the plaintiff if relief or the value of the right sought. Some jurisdictions instead look at a “compliance” standard. A case need not be dismissed for lack for subject-matter jurisdiction at that time, statute §1332(b) provides that the court may assess costs against a plaintiff (rarely enforced).
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In a simple two-party action aggregation will be allowed. “Joint and common interest” is the multi-party standard. The fact that the parties are united in interest in terms of desiring the same relief or resisting the same claims does not meet standard, however, a husband and wide may have joint interest in their home.
AFA Tours v. Whitchurch (262)
Whitchurch was employed with AFA for seventeen years, left company with clients’ names, and solicited them for his own company. AFA brought trade secrets suit but struggled to show actual damage (no persons signed up with Whitchurch). Rule applied that sum claimed by plaintiff made in good faith to a legal certainty (what the law will allow). Court held that case was dismissed too soon because no opportunity to prove losses.
Comment on case: Court generally examines post-filing events if amount was calculated in bad faith or by mistake. In certain cases (like class action), amount “aggregation” is allowable. Torts may include punitive damages to claim diversity while contract cases are easier to establish proper jurisdiction.
3 Supplemental Jurisdiction
In 1990, Congress enacted a statute authorized supplemental jurisdiction over all related claims that are part of the same case or controversy as claims in the action that are within the courts original jurisdiction (§1367) after the Gibbs decision. Gibbs established rule for pendant claims to federal claims requiring a “ common nucleus of operative fact.”
Jurisdiction is determined by two-prongs: 1) Gibbs standard and 2) judge discretion. For this reason, the rule is applied by a case-by-case determination. Judge maintains discretion to remand claims at almost any time through § 1367(c). Supplemental jurisdiction may be determined at any time. Court makes up “discretion” in §
1331 which creates “trigger” based on efficiency.
Technically two forms of non-statutory subject-matter jurisdiction (supplemental) exist—ancillary and pendant jurisdiction, though, they are hardly distinguishable in practice. Both types requires the presence of an action of at least one claim that met the standards of one of the statutory bases for subject-matter jurisdiction. Then jurisdiction may be brought over an insufficient claim if they share a “common nucleus.”
Pendant jurisdiction is invoked when the question presented is a state-law claim. Ancillary jurisdiction pertains in all other situations in which the federal court retains jurisdiction over closely related claims that are insufficient by themselves but are attached to proper claims (EXAMPLE?).
United Mine Workers v. Gibbs (291)
Gibbs received damages against WMW for Labor Relations Act and violations of Tennessee law. Damages later set aside because they were unproven and rescinded to state court. Supreme Court held that closely related state questions may assume supplemental jurisdiction.
Morrison critique:
“Common nucleus of operative fact” test becomes very important and does not offend
Article 3 because attached state claim does not add much work and is efficient.
Based on the Supreme Court application of Gibbs, no additional claims, defendants or plaintiffs may be joined as pendant claims. Pendant-party jurisdiction was first presented as an issue in Aldinger v. Howard (pp. 296) in which the court held that because statute did not prohibit additional parties, such action would not offend judicial economy.
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On the other hand, judicial economy is not cited within statute (though it is in Gibbs) so Finley v. United States suggested a narrower view of pendant-party jurisdiction holding that absent statutory authorization, the court was powerless to create it. In 1990 Congress enacted supplemental-jurisdiction statute.
Congress codified rule by statute, § 1367. Statute is largely but not completely identical to Gibbs. § 1367(a) grants broad authority for supplemental jurisdiction, which includes additional claims and parties being joined to federal subject claims. But part B does not grant such jurisdiction to diversity claims. Part C listed other exclusions but was imprecise in its language, creating loopholes. Still allows judges’ discretion in making determination. Part C(4) allows for joining under “extraordinary circumstances” with heightened standards.
Some courts have encountered problems with removing “separate and independent” claims on the basis that
“state law predominates.” Unclear and controversial test. Part D addresses Statutes of Limitations. Not uncommon for federal judges to remand cases to state courts under “conditional dismissal” that defendant does not raise SofL.
4 Removal
Removal is another federal statutory device (§1441) which allows a defendant to remove a case from state to federal jurisdiction (when concurrent jurisdiction exists). Such a device limits plaintiff choice but exists in cases where local prejudice is likely. Not available to a defendant if he or she is local or state citizen. Three prerequisites:
1.
Federal subject matter jurisdiction must exist;
2.
Only defendants may remove;
3.
Non-resident defendants cannot remove in diversity cases.
Federal court still reserves power to remand case to state court, however, unlike supplemental jurisdiction, the court may remand entire case, not only insufficient claims.
Borough of West Mifflin v. Lancaster (317)
Mall police officers and local police officers harass plaintiffs. In court plaintiff plead Civil Rights Act violation and state civil rights violation and was removed from state into federal court. District court remands to state court because state claims were “separate and independent” under § 1441(c). Supreme Court held mistake was in remanding entire case, not just state claims.
Morrison critique: Case presented federal rules mismatch between removal (§1441) that states venue must be determined before trial after claim is filed and supplemental jurisdiction (§1367) that allowed pendant claims to be remanded at anytime. Often removal is presumed to be proper unless challenged.
IV.
Pleading: Denny to Heyward-Robinson
1.
General rule on pleadings: Rule 8(a) allows for “notice pleading” (a short plain statement of the basis of the relief sought). All that is required is enough information for defendant to respond. There are a few exceptions like fraud and defamation that have heightened pleading standard (Bell Atlantic case). Rules require courts to construe the pleadings as to do “substantial justice.”
Pleadings are liberally applied because proof requirements get harder through the stages. It is largely advantageous to plead with specificity. Relief specificity may be important, too (determining diversity or certain action deadlines). Rule on relief allows for money damages or injunction (only judges determine injunctions).
Rule 15(a) allows for amendments; (b) requires that amendments conform to evidence; (c) time by which relief must be entered.
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Many local rules prohibit attachment to claims but it is not prohibited by Federal Rules. Any lack of clarity in pleading may be interpreted in favor of plaintiff. Conley case demonstrates that a plaintiff does not have to make a legal argument within pleading, but has to present enough facts on which a legal theory can stand. At this stage, plaintiff’s facts are accepted as true, as opposed to summary judgment stage. Rule 15 allows for liberal amending, if necessary.
Denny v. Carey (512)
Plaintiff accused company of fraud through stock price inflation. Case was thrown out because there is a heightened standard for fraud cases (Rule 9b). More particularity in pleading is required to respond
(reputational harm rationale is weak). No evidence is required, however, plaintiff’s lawyer must make claims in good faith that discovery will reveal proof (Rule 11).
Morrison’s critique: Rule and holding place emphasis on “reputation” for exception rationale but in actuality not so important. See also Tradeoffs article.
2.
General rule on answer: Defendant can either plea in abatement either by motion or in an answer in which the defendant can enter 1) denial; 2) introduce an affirmative defense; or 3) seek independent relief via counterclaim.
Defendant must admit or deny facts but does not have to reach a legal conclusion. Minor factual disputes are resolved during discovery. By summary judgment stage, defendant must have actual evidence. Rule 12(b) allows motions for dismissal (or responses) 20 days after being served with summons and complaint.
Defendant has little to lose for filing for a motion to dismiss in early stages. At least it causes delay and may
“smoke out” plaintiff’s theory of the case. Although it is easier to write an answer, bigger gains with filing motion (Rule 12(b)(6)).
Rule 12(b) allows defendant to challenge jurisdiction in answer, however, this is a limited opportunity that closes after answer is submitted. Rule 12(e) allows defendant to ask for a more definite (pleading) statement.
There is no heightened standard for discrimination (like fraud) so defendant may initiate discovery process for more particulars about “intentional discrimination” at that stage, if necessary. §1404(a) allows for venue challenge and makes transfer available.
American Nurses’ Association v. Illinois (531)
Nurse Association sues state under Federal Civil Rights Act title claiming discriminatory wages against women.
Association relies on a comparable worth study; however, study does not prove discrimination, instead it simply proves differentiation. At issue is whether study warrants a legal claim to move forward with discovery. Court holds that it does not present an actionable legal claim under cited Act.
Morrison critique: Opinion helps plaintiff structure legal argument by providing “road-map.”
3. Amendments and Relating Back
Relating back presents problems with notice. New facts or theories that are part of the same transaction or occurrence are presumed admissible. When regarding a new party, however, the court must be able to find that the new party received actual notice of the claim before time for filing the claim lapsed and knew that but for a mistake, the absentee should have been a named party.
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Filing amendments are addressed in Federal Rule 15. 15(b) allows for an amendment if conduct arose out of the same conduct, transaction, or occurrence, like Gibbs’ “common nucleus of operative fact.” This allows for changed facts and causes of action because it is so early in pleading stages. It is almost impossible to change parties’ names or parties’ themselves unless a genuine, unprejudiced mistake is made (remember Fortune magazine case in notes).
15(c) bars amendments that may prejudice defendant regarding notice. Rule 4(m) establishes 120 day rule in which plaintiff must serve complaint once it is filed. Courts reserve the right to extend period, however.
Worthington v. Wilson (557)
Worthington was a police brutality case, in which victim made Federal Civil Rights Act claims. Two-year statute of limitations had nearly ran, and claim was filed without specific names. Plaintiff attempted to amendment complaint by “relating back” and inserting specific names. Worthington loses because claim did not relate back within statute of limitations (initiated when original case was filed), even though defendant in case was not disadvantaged. (See Schivavone footnote, 558, in which old rule barring relating back was applied.)
Morrison critique: Worthington is anomaly. Rule 15 written for Schivano cases, not ones like this. Rule was later changed to amendments were given longer period.
4. Counter-claims
Counter-claim right is “use it or lose it” affirmative defense. In federal court, compulsory counterclaims may not have subject matter jurisdiction but permissive counterclaims must have independent subject matter jurisdiction.
Rule 13 is based on res judicata and requires claim to made during early stages. While requirement prevents forum-shopping and reverses roles for defendant, it may also disadvantage defendant who is uncertain about cause of action.
It is not always a fair requirement but tradeoff is allows defendant to choose between judge or jury trial. Rule
23 on counter-claim returns back to § 1367 that simply requires counterclaim to arise out of the same case or controversy.
United States v. Heyward-Robinson (584)
Contractor and sub-contractor dispute over two jobs, including a Navy (federal) job. Miller Act conferred subject matter jurisdiction over Navy-related issues, and thus the Navy job. At issue is the other job, Selma job, as it was within same contract and dispute. Heyward claims no jurisdiction over Stelma job. Court held that
Selma job and counter-claim were within same transaction per Rule 13(A)(1)(a). “Broad realistic interpretation in the interest of avoiding a multiplicity of suits” (585) is Rule 13 counter-claim test. Dissent expresses concern over broad rule.
Morrison critique: Pragmatism is compelling but does not answer question in case whether a compulsory counterclaim should have independent jurisdiction under rule. At pleading stage, evidence about “jointness” of claims would not have been available when decision should have been made.
Comment on case: Permissive counterclaim may also have been problematic because Stelma case was not factually related to Navy-case, and it did not have an independent basis for jurisdiction. Remember that statute overrule rules, so that §1367 would prevail over Rule 23, as there is slightly different language.
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V.
Discovery and Protective Orders: Marrese to Hickman
1.
Discovery
See Rules 26(a)(1), (b)(1) and (2)(d)(e)(f); Rule 30(a); Rule 33 and Rule 34.
Pleading rules require mandatory disclosure. All relevant information must be disclosed at initial stages. For this reason there are limits on interrogatories and depositions. No limits on document requests. Electronic discovery is subject to the same rules.
Discovery is extremely fact-dependent, in which there is little “law” involved. Judge must balance relevant interests and minimize burden on parties.
Usually not an either/or situation. Alternatives such as sequencing, in camera review, redaction, deposition limits may be used.
Marrese v. American Academy of Orthopedic Surgeons (745)
Doctors denied routine admission into Academy without explanation. In discovery, Academy evokes Rule 26 claiming that documents are privileged. Lower court ruled that documents were privileged. At issue is whether rule applies to case. Majority opinion argues that other mechanisms exist to proceed with discovery while preserving privacy such an “in camera,” redaction, and sequence alternatives. Dissent opinion argues that majority did not claim that an “abuse of discretion” had taken place and that it is improper to recommend alternatives at appeals stage.
Morrison critique: Doctors were probably denied entry because they were engaging in competitive conduct, like advertising.
Comment on case: Discovery was essential to case like this. This case, like other discovery decisions, have very little impact on the law. Because discovery decisions are generally not appeal-able, when they do reach appeal stage, it must meet the very high “abuse of discretion” standard.
2. Protective Order: Seattle Times-Based Hypothetical (See Assignment Six Problem; Seattle Times on
751)
Problem deals with trade secrets which is a special category listed under Rule 26(c)(1)(g) as material that may be requested for a P.O. Trade secrets are a company’s tightly controlled information.
There may be ways depending on the party of discovering its trade secrets without a P.O. For example, within
Problem, drug in question is likely to be patented. Companies disclose a lot of information for patented drugs.
Lawyers must never forget the reason why they are there: clients. Clients should have enough information to govern informed decision making regarding a protective order, especially if your client has a significant personal investment in the case. It is important, too, because it is part of professional ethics.
Several parties are likely to benefit from disclosure other than client, including other harmed women, competitor companies, government, public at-large, media, and potential jurors in this Problem.
Plaintiff, expert witnesses, and a few others will be allowed to see information disclosed within a P.O.
Sometimes a party may be able to use discovery to elicit more discovery. If one party moves for summary judgment and your client does not want sensitive information disclosed in the public court documents, you may request for it to be put under seal.
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Regarding the scope of protective orders, “everything” cannot be subject to P.O. Although having “everything” may expedite the process, it is too burdensome. Often a P.O. must be narrower. Usually information received under P.O. must be properly disposed of after use (when the case has been fully tried or settled).
Other interests not party to lawsuit may file a motion to intervene (Rule 24) for limited purpose. Likely to argue that there is no good cause for P.O. (Press may make motion in this Problem.)
Rules allow lawyer to represent others within same “class” in the future (like another drug company). i.e. drug company could not pay lawyer a large sum in exchange for his or her exclusivity.
Client must make ultimate decision about settlement (no matter how much it may be). Civ. Rules limit how much a lawyer can guard his or her client’s ethics. Moral obligation to public is not a limit under these rules.
P.O. does not permit restrictions on sharing restrictions among legitimate parties, like other attorney’s within a firm.
Rules favor client, not public, however. Reform is necessary. P.O.s runs the risk of “covering up” significant issues. One example: Catholic Church scandal.
3. Work Product Privilege
Hickman interpretation was later codified in Rule 26(b).
Attorney-client privilege extends to legal advice and it exists even when a client dies. It is not, however, limited to litigation-matters.
Limitation exists to encourage attorneys to “do their own work” in vigorously representing client. Concern is that change would alter primary conduct.
Rule is not absolute. If witnesses are not available, for example, exceptions may apply in which qualified privilege exists.
Court must try to strike a fair balance so that poorer clients do not have a less useful discovery (because they have fewer attorneys fact-finding on their behalf as opposed to a corporation).
Hickman v. Taylor (800)
During discovery attorney attempted to procure notes from opposing counsel which were taken prior to trial onsite when collecting information from witnesses. Attorney evoked attorney-client privilege on the grounds that document would allow counsel to follow his thought-process. Court addressed issue as a whole, not distinguishing among work-products. It held that pre-trial materials anticipating litigation were not subject to privilege.
Morrison critique: Ruling rationale was a stretch but consistent with discovery rules.
VI.
Trial Issues: Applicable Law, Res Judicata, Appeals on Jury Verdicts and Adjudication
Without Trial
1.
Applicable Law
The question of what law governs in a federal court sitting in a case that is not based on a specific federal law
(usually diversity) poses difficulty in federal court litigation. The
Rules of Decision Act (§1652) (pp. 259 in
Supplement) provides that federal courts shall apply the “laws of the several states.”
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In Swift v. Tyson (362), the Supreme Court interpreted “laws” to exclusively mean state statutory law. Swift rule evolved into a federal “common law” and was later re-interpreted by Erie Railroad v. Tompkins (364-370).
Two issues have arisen:
1) When the federal court is deciding whether it has the authority to create common law on a particular issue
Based on Erie doctrine the federal courts have no power to create a body of general federal common law to govern substantive rights (power reserved to states under Tenth Amendment).
2) Requires the federal court to decide whether it must follow state law even if there is a federal rule of civil procedure that appears applicable.
The federal government has a legitimate interest in having federal law govern part of the process under Article
II, § 2, which includes proscribing procedural rules. If a procedural rule is actually designed to regulate court processes then federal rule is superior (Supremacy Clause, Art IV). When the action is in state court, however, the Supremacy Clause of the Constitution requires those courts to follow federal law in which no balancing test is necessary. But if rule is a federal case and may alter the merits of dispute then four-part balancing test applies:
1) Is the issue one which is tightly or loosely bound up with the creation of the state rights being sued upon?
2) Would the application of a different rule by the federal court be outcome determinative in the sense that it would result in forum shopping?
3) What is the federal interest in avoiding the state law or the federal policy that will be advanced?
4) Would the use of a federal standard have an adverse impact on federalism?
Erie is restricted to circumstances in which the court is sitting in diversity and no clear federal statutory or constitutional interest pertains so that the Rules of Decision Act applies, mandating state law.
Morrison critique: Swift decision appears to contradict Act by which the decision was based. Strongest argument within Erie related to its Due Process claim, arguing that absent stare decisis primary conduct may be changed.
2. Res Judicata & Issue Preclusion (1134)
Collateral estoppel or issue preclusion is invoked when separate causes of action are presented in the first and second suits (same controversy). The doctrine provides that any issue that was actually and necessarily litigated in one action cannot be re-litigated in a subsequent suit. It precludes re-litigation of the same issue on the assumption that even if issue was wrongly decided in the first action, the parties had a full and fair opportunity to present their case on that issue.
Elements for issue preclusion (and perhaps res judicata):
1) Raised in initial case, even if not initially litigated; (See Cromwell v. County of SAC on 1135)
2) Issue was decided; ( Parklane Hoisery Co. v. Shore on 1169)
3) Decided issues were necessary for ruling.
See also Rush v. City of Maple Heights (1115) (plaintiff must sue for all damages arising in single case);
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Matthews v. New York Racing Ass’n
(1121)(all claims arising from single issue should be included in single lawsuit);
Jones v. Morris Plan Bank (1126)(parties may agree to exclude any issues that would be settled by res judicata; if state court declines to hear federal compulsory counterclaim then court cannot rule res judicata when claim is filed in federal court once first case is decided); and Rios v. Davis (1142).
Res judicata or claim preclusion refers to the effect that a final adjudication on the merits of a cause of action
(claim) has on an attempt to re-litigate the same cause of action within the same judicial system.
This doctrine goes even further than issue preclusion because it provides that once the parties have been given a hearing on a claim, there can be no re-litigation even though there may be some issues that were never introduced in the first action, but that could have had substantial impact on the outcome. Doctrine only applies when action is between persons who were parties in the first action, or who are in privity with persons who were parties in the first action.
Res judicata dismisses cases that have been litigated. Issue preclusion pertains to specific issues that may be presented from the same case, transaction, or controversy; case will not be dismissed on this ground alone.
Non-mutuality rule is allows for litigation against another party for the same cause of action. This is an update from the mutuality rule that barred such litigation. Mutuality became obsolete once procedural devices like jurisdiction and joinder were permitted.
Some limits exist for non-mutuality. Court has discretion when a plaintiff is litigating against multiple plaintiffs in separate suits (on same issues). This is an “offensive” rule; most are “defensive” ones (defendant against losing plaintiff).
Elements for res judicata (raising party must show):
1) same cause of action or same claim is involved in both suits;
2) there was a valid and final judgment on the claim and
Final judgment rule: 1) no appeal is available until there is a final judgment; and 2) a party may appeal any adverse ruling (assuming that it is not moot) once final judgment is made. Remitter is value placed on a judgment. Plaintiff may accept or ask for a new trial. Defendant has no option on judgment.
3) judgment was on claim’s merits.
3 Appeals on Jury Verdicts
The
Seventh Amendment 1) establishes defendant’s right to jury trial; and 2) enumerates that courts should be trial judge/jury-protectant.
Several reasons why a party may prefer a judge trial over a jury trial including shorter time, sooner trial, and potential bias (race example).
Federal rules address appellate standard of review (Rule 52). Appeals examine case factual and legal conclusion. Appellate judge may only overturn clearly erroneous facts. This two-prong protocol exists for the benefit of parties, 1) record for appellate review (issue spotting), and 2) trial judge (ensure accuracy by
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explanation). See Roberts v. Ross (996) in which judge made judgment first, asked for briefs, and then disregarded briefs.
Hutchinson v. Stuckley (seventh assignment sheet) See also Gasperini v. Center for Humanities (pp 406).
The appellant, Ronald C. Hutchinson, appealed district court's order granting a new trial following a jury verdict in
Hutchinson's favor. The court ordered the new trial on two grounds: (1) the verdict was against the weight of the evidence and (2) the damages were excessive. Court held that judge erred on first ground because judges should not overrule liability on the belief that one side’s testimony is “more credible.” Standard for setting aside jury verdict is higher and accordingly ordered a new trial on issue. The court also ordered a new trial for damages, however, for different reasons. The lower court judge accused the jury of being affected by “passion and prejudice” in its award.
Although the court found that the judge abused his power by vacated damages, because the amount is within a reasonable range, a new trial on the issue is most appropriate.
Morrison critique: Rare for case like this to reach stage. It is only because the plaintiff could not afford an appeal that another rule (merger rule) applied and sent case to next level. Abuse of discretion standard usually gives the benefit of the doubt to trial judge, promoting efficiency.
4 Adjudication without Trial
Summary Judgment
Summary judgment is a procredure by which a party can obtain a final binding determination on the merits without the necessity of a full trial. It is similar to a motion to dismiss because both decisions are based on the rule of law (like directed verdict and conclusion). They are different because summary judgment requires evidence (affidavits, depositions, admissions, interrogatories) to support factual and legal claims (motion to dismiss relies on plaintiff’s complaint facts).
The standard for summary judgment is 1) genuine issue of material fact and 2) judgment as a matter of law. See
Lundeen v. Cordner (860).
Initial burden of showing that the summary judgment standard has been met is on movant and evidence is viewed in the light most favorable to the opposing party.
In some cases (when proving a double negative), a movant may succeed by claiming that the opposing party has no or insufficient evidence to satisfy its trial burden. See Celotx Corp. v. Catrett (870).
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