Wolff – Fall 2010
Civil Procedures: process of resolving private disputes in judicial proceedings; a series of phases of the
adjudication process
Purpose/Objective
Interests considered?
Peripheral objectives
Who brings the suit?
Right to Jury?
Standard of Proof?
Resolution/Remedy?
Civil
Remedy for injury in the form of
judgment; allocate private rights
Litigants
Reactive interpretation of law;
enforce public norms
Private parties (sometimes can
be a state or US in a private suit)
Jury only in certain cases
Fair preponderance of evidence,
OR in some cases, Clear and
convincing evidence
Damages, injunction and other
relief
Criminal
Punishment and deterrence
through fine and imprisonment
Society and State
The State
Right to jury
Beyond a Reasonable Doubt
Fines and imprisonment
General properties of a civil suit:
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Series of burdens
o π has to satisfy in quest for relief
o ∆ has to satisfy to have suit dismissed
State courts are plenary – hear everything that Federal courts don’t. They’re general courts, unless
otherwise specified (land courts, family courts…)
Adversary – lawyers are to represent their clients’ cases as positively as possible and have no
responsibility to aid the other side
Investigation – lawyer’s responsibility: ascertain client has meritorious claim Rule 11
Fees – American system  each pays his own; English system  losing party pays all; Contingent fees
Jurisdiction
o Federal: arising under federal rules and Constitution; diversity; special topics (patent, trademark,
antitrust)
o Personal: Geographically determined over ∆ in state and federal courts
General Stages of a Civil Proceeding
I.
II.
III.
Filing of the Complaint: Rule 3, suit starts when π files complaint and lets Δ know what he’s being sued
for and where and when to appear to defend
Service of Process: Rule 4, in person or by mail (federal and some states) w/ returned receipt; Mullane
Pleading: Rule 8; Sullivan, Twombly, Iqbal
a. π’s Complaint: short and plain statement with allegations only to satisfy prima facie elements, if
true, entitles you to relief
IV.
V.
VI.
VII.
VIII.
IX.
i. Usually accompanies service of process/summons
ii. Also called Summary of Complaint
iii. Can be short and simple or long and detailed
b. ∆’s Answer: facts/arguments/claims/defenses
i. Dispositive Motion  dismissal of the law suit
1. Motion to Dismiss  prove lack of personal or subject matter jurisdiction
2. Demurrer  failure to state a claim or ∆ is not subject to the applicable laws or
testing legal sufficiency; “so what?” Rule 12(b)(6)
ii. Conterclaim allege that π has injured ∆
Remedies
a. money damages, injunction, declaratory relief  all “final reliefs”
b. restraint on assets, restraining order until case is resolved, preliminary injunctions
intermediate relief
Pre-trial Discovery  most time-intensive but is designed to avoid cost of trial
a. Develop factual record: learn info, shape info that are entered into record and limit opponent
to do the same
b. Depositions: recorded examinations of witnesses under oath
c. Request for Production of documents
d. Interrogatories: written questions
e. Subpoenas: might be issued by the court to compel non-parties for response
Summary Judgment: Judgment w/o trial when there’s factual sufficiency and no substantial counter
affidavit and no genuine issue of material fact. “you’ve got nothing!” Rule 56
Trial
a. Calendared for trial w/ both parties’ right for trial by jury pick jury π opening statement 
∆ opening statement
b. π is typically the party w/ burden of persuasion, which carry burden of production of evidence
(lawyers’ job along with raising objections) satisfying all elements of claim
c. presentation of evidence to fact-finder (jury or judge): documents, direct and cross examination
 redirect and re-cross…
d. Directed verdict or judgment as a matter of law “Loud and fury, signifying nothing” Rule 50 π
has not presented evidence that a reasonable jury would find to be conclusive
i. Police “no competent” jury can come to a good conclusion, not to prevent unreasonable
jury
ii. One claim or all claims
e. Closing arguments by counsel
f. General verdicts, special verdict, post-verdict motions
Appeal
a. After final judgment of trial court
b. Review of records only, no more findings of facts unless clearly erroneous
c. Affirm, reverse, vacate or modify, accompanies by written opinion
Enforcement of Judgments: State and federal courts owe obligation to give full faith and credit to other
courts in the federal system
X.
Finality: Res Judicata  once the court establishes rights, no permission to relitigate defenses or claims
Pleadings
 No “trial by surprise” to ∆
 Allows π to revise her action, evidence, facts, at no excessive burden
Power of the Tribunal Over Subject Matter of Suit: “Subject-Matter Jurisdiction”
1) Article III of Constitution
 one Supreme Court and other federal courts by Congress
 Jurisdiction over (law and equity): Constitution, Law of US, US is a party, Treaties, US states, US, citizens
v. foreign, Ambassadors, State v. State, State v. citizen of another State, completely diverse case among
citizens, citizen v. citizen over land in another state
2) 28 USC §1332 (a) – (c): Diversity jurisdiction
 claim>$75k and (or(citizens of different states, citizens of state v. foreign, previous two combined,
foreign state v. any citizen of US as Δ)
 it’s ok if final remedy rewarded is <$75k
 non-natural citizens
i) corporations (state of incorporation or principle place of business)
ii) estate executives/representatives are citizens of that of the decedent
3) 28 USC §1441: Acts removable generally
 If US district court had original jurisdiction  Δ’s may remove to applicable district
 Out of Constitution or Federal Laws  removable regardless of citizenship, otherwise, only removable
with Complete diversity
 If one independent claim is removable and is joined by another otherwise non-removable  may
remove and federal court has say in all matters
 State v. Foreign  removable and tried w/o jury
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4) Rule 12 (b), (g), (h)
 12(a)(1) 21 days for Δ to file answer
i) suspended after 14 days Δ’s motion to dismiss is resolved (once motion to dismiss is denied  14
days to answer)
 12(b)
i) every defense to a claim for relief must be asserted in a responsive pleading
ii) 7 defenses
iii) motion asserting defenses must be made before pleading if responsive pleading allowed. If claim
pleading doesn’t require responsive pleading  may assert at trial
 12(g)
i) motions under this rule may be joined by other motions
ii) party cannot make another motion under this rule if one has already been made but omitted the
available motion being asked later
 12(h) Waiving and preserving certain defenses
i) Parties waive defenses by: omitting it from motion (g)(2) or fail to either: make it under this rule or
include it in a responsive pleadings or amendment
ii) Failure to state a claim upon which relief can be gratned to join a person, or state a legal defense to
a claim may be raised: in any pleading allowed or ordered under Rule 7(a), by motion under 12(c) or
at trial
iii) Lack of subject matter jurisdiction, if court at any point of suit find this to be true  dismiss
5) Rule 4 (a), (b), (c), (e), (k) Summons
 4(a) Contents, Amendments
i) Contents: name of court and parties, be directed to Δ, name and address of π’s attorney or – if
unrepresented – of π, time within which the Δ must appear and defend, notify about default
judgment for failure to appear, signed by clerk and bear court’s seal
ii) Can be amended
 4(b) Issuance: On or after filing complaint, clerk must sign properly completed summons and issue it to
π to be served to each Δ
 4(c) Service
i) General: π is responsible for having summons and complaint served within time allowed by 4(m),
usually 120 days but can be extended
ii) By any person 18 or older that’s not a party
iii) At π’s request, can be served by US marshal or person specially appointed by the court
 4(e) Serving individual within Judicial district of the US (unless minor, incompetent, or waiver)
i) serve by flowing state law for serving summons in an action brought in courts of general juri.
ii) any of the following: personally serve, leavea copy at individuals dwelling or usual place of abode,
appointed agent
 4(k) Territorial limits for effective service
i) General serving a summons or filing a waiver establishes personal jurisdiction
(1) a party that is already under the state’s jurisdiction
(2) party joined by Rule 14 or 19 and is served within a judicial district of US and not more than 100
miles from where summons was issued
(3) authorized by a federal statute
ii) Federal claim outside state court jurisdiction: For a claim arising under federal law, serving a
summons or filing a waiver of service establishes personal jurisdiction over Δ if Δ is not subject to
jurisdiction in any state’s courts of general jurisdiction and it’s not against Constitution and laws
 There’s a distinction between what you have to do in service to establish personal jurisdiction 4(k)(1)(a)
vs. other things that you have to do for proper service 4(e)
Removal to Federal Court
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Δ files for removal  automatically moved to the district of the original state court
π may now file a motion to remand  federal district court would have to decide for itself whether they
have jurisdiction over the case (subject matter)
Fraudulent joiner doctrine: used so that we can have immediate removal to federal court instead of Δ
having to wait for state court (the one he’s trying to avoid) to dismiss the frivolous joiners, wait to
establish complete diversity and then remove
Rose v. Giamatti
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there is the issue of requiring so much fact-finding even just to determine jurisdiction
Δ invoked fraudulent joiners doctrine  lack of complete diversification cured
Notice Pleading
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Bell Atlantic v. Twombly
o factual allegations must be enough to raise a right to relief above speculative level vs. pleadings
is fine unless it appears beyond doubt that π can prove no set of facts in support (Conley)
o specific facts and context vs. legal conclusions (recitation of elements)
o plausibility: not possibility but likely or just as likely as any other conclusion
o judges decide based on judicial experience and common sense, taking away form jury?
o acting out of independent self-interest language
o “nudged their claims across the line of conceivable to plausible”  dismissed
o Dissent: “ Federal Rules meant to codify does not require or invite the pleading of facts”. Rule
12(b)(6) always give Δ right to say and prove “no” any time before trial, we should get the
benefit of Δ’s answer
o or invoke 11(b)(3)
o Form 11 of negligence claim example
o substance of the underlying cause of action, a factor, hard to prove, expensive and treble
damages
o giving lower courts more control over what they hear?
Facts vs. legal conclusions
o factual allegations are assumed to be true
o conclusory allegations are not entitled to presumption of truth
 they’re to be supported by factual allegations and factual context
 ignore conclusory allegations all together? NO!
 can the court infer truthfulness of legal conclusions from factual context that is also
provided in the pure factual allegation? Is it plausible in light of the pure and specific
factual allegations?
Iqbal
o complaints targeted at specifically Mueller and Ashcroft
 set policy targeting race rather evidence of terrorist involvement
 detained, barred them from ordinary review process, subjected them to cruel and
unusual treatment ONLY based on race
 In briefing process: knowledge and acquiescence is enough judges said, no, has to be
an active participant
 Ashcroft is architect of policy and Mueller is chief and instrumental executive of policy
 conclusory
 includes a lot of who, what, when, where and how  still just a repackaged recitation of
elements in cause of action
 Judges can’t personally infer the truthfulness  not plausible  couldn’t conclude
discriminatory purpose even though there was that result
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A&M did make the argument that they don’t get involved in that low of a chain of
command of specifics and there’s no vicarious liability in these causes of action
 Dissent: A&M were “clearing” the review process  particular enough of a factual
statement
Rule 8 General Rules of Pleading
 8(a) – “short and plain statement of the claim showing that pleader is entitled to relief
Rule 9 Pleading special matters
 Certain things that need or need not to be included in the pleadings
Rule 12(b)(6) Presenting defenses
 every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is
required but these defenses may be asserted by motion
i) Lack of subject jurisdiction
ii) lack of personal jurisdiction… vi)failure to state a claim upon which relief can be granted
Rule 15 Amended and Supplemental Pleadings
 parties may amend its pleadings once as a matter of course within earlier (21 days of serving it or 21
days after responsive pleading)
 other cases a party may amend w/ consent from opposing party or court’s leave to protect justice
 response within later(14 days of amended complaint or timeframe of original pleading)
 amendments relates back to the original pleading
 allows for amendments in light of pre-trial discovery
Garr v. US Healthcare
o Structure of Rule 11 is the Duty to Investigate, when granted, doesn’t mean dimissal
o Signing pleadings (really it details the obligations of a lawyher and π), especially court documents
i) Duty to the good faith of the lawsuit
ii) Duty to the legal founding
iii) Duty to the factual allegation/contentions of the suit, basis for evidenciary support
iv) Duty to denial of factual contentions
(1) Twombly and Iqbal, parties are invited to argue the plausibility of π’s motion w/o any regard to
any knowledge that you have
(2) Rule 11 is different than above Twombly and Iqbal, if you know something to be false, u have to
raise it, things in the document are sanctionable
(3) unlike criminal proceedings where you can plead the 5th, under 11(b)(4), Δ has to go through
each item and say yay or nay
(4) Rule 11 is objective standard
o Court determines reasonableness and sufficiency, of the Personal investigation of the lawyers
i) can invite experts within your firm but outside is split
o Rule 11 is usually a last resort, applies to every written motion and other court paper, badwill if you get
sanctioned or raise frivolous sanctions
i) doesn’t discourage new/creative ways to present cases, but blatant misrepresentations, dishonest
and abusive.
ii) Distasteful, impolite behavior like in Revson v. Cinque is not bad enough
10) Rule 11 Signing Pleadings…; Sanctions
i) 11(a) and (b) – defines what is adequate for court papers
(1) 11(b)(3) allows attorney to certify that “the factual contentions…, if specifically so identified will
likely have evidentiary support”
ii) 11(c)(1) and (2) – Safe Harbor
(1) you must put opposing party on notice
(2) 21 days to withdraw or amend before you file a motion 11, court may award the party expenses
if sanction is meritous
iii) court may invoke sanction on their own
Pretrial Discovery
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Federal Civil proceeding discovery process is mostly private and voluntary, the rules are set up to let the
court referee along the way
Discovery starts at the Δ’s answer  clear end to pleadings (see graph 1)
Δ’s appearance can be a motion to dismiss
Scheduling conference Rule 16: court approves roadmap for discovery, # of days, depositions, scope of
documents, timing of motions
Discovery conference Rule 26(f): not with the judge, may happen before the answer if answer comes within
21 day of scheduleing of pretrial conferences
Initial disclosure Rule 26(a): anything that touches the suit must be disclosed, in support of your own claims
or opposing party’s. This is the first time that litigants learn info.
Rule 26(b)(1): define what materials are relevant, presumptive scope is very broad
Rule 26(b)(2): limitations of discovery
o can’t be duplicative or burdensome
o if it’s something that could have been asked for earlier…too bad
o burden outweighs potential benefit 26(b)(2)(C)(3), courts may make choices about what the parties
have access to (judges have a lot of power to parties’ access to info, what was Iqbal and Twombly
worried about?)
Purpose and function of discovery
o Learn and gain access to things that you don’t already know
o make and shape record strategically  guide narratives to your advantage  end of discovery, the
outcome of most suits already is already clear
Depositions
o Rule 30: default of 10, 1 day or 7 hours each  have to come up with some conclusion argument
i) with exception to privileges, objections are made and recorded but witness still has to answer, can
allow “speaking objections”
ii) don’t raise objection  waived at pretrial discovery but can raise again in trial
iii) if depositions give rise to new documents and recordsmay ask judge to 2nd round of extend
discovery
Interrogatorries
Rule 33: Ask a question  parties are bound to make reasonable efforts to investigate and answers are
binding at trial
i) may direct these at the party only, not experts or witnesses
ii) if opponents evasive, you can ask court for help
iii) default 25 questions and subparts
Production of Documents
o Rule 34: dictates the form of documents, very expensive, heatedly negotiated for scope
i) have to produce them in the same org as they were filed
ii) 4 options
(1) send doc request to employees
(2) send request to internal general council
(3) hire outside council – most preferable
(4) Open vault to opposing party
o Rule 37(e): give some leeway for things destroyed as routine
Mental and Physical Examinations: Rule 35 have to show good cause b/c invasive and Rule 37 limits
Request for Admission: very specialized interrogatories with yes/no answers
o Fast-track evidenciary issues, like authentification
o can only be used to be binding for current lawsuit
Protective Order and Right to Compel:
o Shield and sword Rule 26(c) preemptive measures to ask for court for protection for certain info
i) sword is Rule 37 where court may assist you to compel
Privilege – the communication, not the substance, governed by state common law addressing certain
relationships
o Work-product
i) powerful objection to something that is subject to discovery
ii) asserted immediately
iii) serves for component not to answer question at all
iv) for documents  don’t give document 26(b)(5)
v) Privilege log: need to alert opponent and identify enough for opposing party to challenge
o Client-lawyer + lawyer –civil justice system/litigation process
o Hickman v. Taylor – soon after the FRCP unified the different state rules for Conformity Act
i) Steps that Fortenbaugh took to withhold info
(1) if he gave up the information from the beginning, he would have to wait till final judgment to
appeal the withholding, whereas contempt of court immediate appeal
(2) Work-product covers
(a) materials created in anticipation or preparation for suit
(b) if opposing party show cause, you can still protect “private thoughts
(c) privilege can be waived, waiver is universal and not selective of particular pieces of evidence
(d) claim privilege or just simply withhold – court favors privilege b/c it’s more transparent
o
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Summary Judgment
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Rule 56 – show no genuine issue of material fact, non-moving party gets to try to show contrary
30days after close of discovery an be defensive or offensive, defensive is much easier to prove
Court then decides if there’s anyway that a fact-finder may rule for non-moving party
everything viewed in the best light for the non-moving party
Celotext v. Catrett
o Rule: “if the pleadings, dpositions, answers to interrogatories and admissions on file, together with
affidavits, if any show that there’s no genuine issue as to any material fact the moving party is entitled
to judgment as a matter of law” – standard mirrors that of 50(a) for directed verdict
o This is not showing affirmative defensive evidence, but does have to show why there’s no genuine issue
of material fact
o non-moving party does not have to introduce only evidence in admissible form but have to show how
they will be admissible later
o Rule 56(c): have to affirmatively show absence of evidence
o Rule 56(e): adopts and formalizes this decision
Scott v. Harris
o Rational trier of fact could find genuine issue of material fact???
Trial
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7th Amendment guarantees right to jury in federal courts, most states have analogous provisions
o jury selection  opening statements  presentation of evidence (agreed upon by both parties)
arguments and attorney’s summations jury instructions  jury deliberation
Policing juries
o summary judgment
o after: control what they hear, role and perception of role and what they decide on
o 2 part “weeding” process: people have ties to the suit by judge then for cause challenge by parties
Directed Verdict and Judgment Notwithstanding the Verdict (JNOV)
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Rule 50 after presentation of evidence by at least on side before going to the jury
judges usually deny directed verdict conditioned w/ JNOV in looming presence of 7th Amendment
have to raise 50(a) to get the condition 50(b) so that judges don’t look like they’re substituting and also
practically better in case 50(a) grant was appealed
if granted  you win b/c of absence of proof/defense
Dixon v. Wal-Mart
o Dixon’s argument asks the jury to draw the inference that the bindings were out there all day  court
majority says it’s logical impossibility
o The court does not treat the credibility of Wal-Mart as a genuine issue of material fact
o Also an element of substantive TX law, high burden to prove these cases for π (parallel to Twombly and
Scott v. Harris??)
De Novo review of Rule 50: court of appeals acknowledge that trial court heard the “full story”
Post-Trial and Appeal Process
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Rule 59 order new trial (28 days) by parties after jury verdict or sua sponte
o verdict against weight of evidence, exposure to improper info or improper conduct
doesn’t mean no evidence, doesn’t mean anyone won  redo
if there’s basis for 50(a), there’s basis for 59
o 50(a) denied  conditioned on 50(b); 50(b) denied 59
OR 30 days to file for appeal (filing for 50(b) or 59 suspends the clock)
Appeals process
o Appellate courts’ opinions are binding, not district courts
o benefits: declare/clarify, unify law; allows more legal contemplation; panel of judges
o US Supreme Court, except for few classes of cases, hears cases at discretion
o Final judgment rule: cannot interrupt, trial court has to render final judgment (serves to narrow issues)
o Original party must be aggrieved
Personal Jurisdiction
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Pennoyer v. Neff (physical territorial boundaries)– lawsuit to clear up infirmities
o physical territorial boundaries
o good faith and credit among states means you have to stay out of other states’ business
o effective service is necessary to attach jurisdiction but doesn’t mean jurisdiction
o can’t do collateral attack…you didn’t show up, can’t challenge merits
Hess (implied consent by using the state’s highways, jurisdiction power derived from specific state statute)
o specific statute gave court jurisdiction, MA law did require actual receipt of notice, did not discriminate
o MA has power to exclude you, it has power over the highway, you want to use the highway, you submit
yourself to the jurisdiction.
o Presence: in property, business, domicile and action within territory
o states may exclude all corporations from the state w/o submitting to state but not persons or
partnership
International Shoe (“minimum presence”, here, regular and systematic solicitation of orders in the state)
o Substantial volume of merchandise shipped within the state  included “arose out of” language, this
was a specific jurisdiction case
o corporations’ presence within and out of the state of origin can be manifested only by activities carried
on its behalf by those who are authorized to act for it
o “minimum contact” test is a “quality and nature of activity” test ensure traditional notions of “fair
play” and substantial justice
o corporation exercises the privilege of conducting activities in the state  get benefit means jurisdiction
Helicopteros– general jurisdiction of a corporation in foreign state (never possible for people)
o how related is the injury to the state + how much contact + did the injury happen in forum state?
o Two steps: 1. Does the state’s Long-arm statutes extend state’s jurisdiction over Δ?  Does it stretch
further than The Constitutional due process allows?
o Contact with the state is too limited (not regular and systematic) + injury did not occur in state
o Dissent: Helicopters, training, contracts, everything “arose out of” the activities in TX + Δ actively and
purposefuly enchanged iin numerous transactions in TX = at least specific jurisdiction
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McGee v. International Life – Specific Act Statute (specific jurisdiction can happen w/ just “one touch”)
o undebatable relationship between the lawsuit and the nature of activity within the state
o minimum contact satisfied: multi-year relationship, K delivered to CA, doesn’t violate justice
o CA has interest to get the little consumer a way of conveniently suing a big foreign state corporation,
otherwise, Int. Life would be “judgment-proof” from small claims
Hanson v. Denckla– unilateral activity of π cannot subject (state forum doesn’t mean state law)
o Compare w/ McGee where there’s FL statute that addressed these suits specifically for state interest
Kulko – one act of a ticket for daughter is NOT enough for jurisdiction; CA went outside of its power
o Compare w/ Hanson and Hess + state wants to stay out of family law
Gray v. American Radiator – Setting product in Stream of Commerce + state interest
o Δ should have had “reasonable inference” that the marketed products will end up in IL
o See McGee, IL is promoting interest of its state consumers + travel now is easy, no injustice
WW Volkswagen Corp. – Unilateral act of consumer + state interest + foreseeability of “hauled to Ct.”
o 5 factors: Δ’s inconvenience, forum state’s interest, π interest for convenient relief outside of getting to
choose the forum, interstate judicial system’s interest (federalism), shared policy interest among states
o Federalist state boundary matters. Foreseeability is not enough. WWV had no expectation to be in OK
(“too attenuated a contact to justify”)
o Dissent : purposeful availment and predictably into the forum state. Commerce now is no longer local
Asahi v. Superior Ct. of CA – Purposefulness + state interest + foreseeability of “hauled to Ct.”+ justice
o O’Connor 4: more than merely setting off into stream of commerce (theoretical prob. that product will
end up in state), need intent to benefit. π was not a resident of CA: inconvenience for Δ is high vs. state
interest is low.
o Brennan 4: foreseeability is enough because even w/o purposeful intent, Δ benefit
o Stevens: O’Connor’s way is fine, just a lot of activity is enough to be “foreseeability +”
Calder v. Jones – Defamation and Targeted Wrong Doing
o expressly directed action to CA on a CA resident  expectation to litigate in CA  does not offend
justice and fair play
o Agency is not an issue here because the employees did have free agency and they independently
intended harm to the CA resident
o Internet cases: did the creator of material care about what the forum is?)
Burger King Corp. v. Rudzwicz – Commercial Contract signed in the forum state that empowers jurisdiction
o contract singing + 20+ yr relationship + negotiations + all transactions were done w/ HQ in FL not region
o Choice of law doesn’t mean automatic jurisdiction but taken all of the above  express and purposeful
Notice and Mechanics of Service of Process – pg. 261 exercise
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Due process is substantive issue, notice is much more of a literal procedure issue to provide for due process
A goal of procedure is to make adjudication the most accurate and balance among:
o opportunity to present and test facts
o neutral tribunal w/ accuracy and reliability
o opportunity to be heard (everyone has their day in court)
Mullane v. Central Hannover Bank and Trust, Co.
o
o
Point of notice is to inform beneficiaries. What is Constitutionally adequate is measured against
circumstances. If know address  1st class mail; need to serve in a way = you actually want Δ to find out
Waiver of service: traditional ways of service, π has to prove you rendered service
i) Rule 4(d): effective service by mail in federal court
ii) π send summons and complaint w/ waiver form to be signed to prove that Δ has been given
function of service  carrot and a stick (30 days to return), followed by 60 days to file answer
iii) 4(k)(a)(1): federal personal jurisdiction = state of location unless provided by fed rules (Anti-trust)
iv) 4(g): corporate managing agent and “legally competent” (substantive definition by state)
v) Tag service: enough for “minimum contact” (Burnham v. Superior Ct. of CA) for people. Compare
with the Int. Shoe analysis
Venue and Forum Non Conveniens – Waivable 28 USC §1391; states and federal have very different rules
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Purpose: shrink the # of judicial districts to weed out the really inconvenient forums
3 disjunctive requirements:
1. Δ’s residence: people  domicile; corporations any state that they’re subject to personal jurisdiction
2. location of wrongful act: substantial part of property, omission, transaction
3. venue of last resort: if 1 and 2 are not satisfied  anywhere that Δ’s subject to personal jurisdiction or
anyh district that any Δ can be found
If lots of Δ’s, one of which is a natural person  his “venue” will rule
Choice of law travels w/ the lawsuit
Piper Aircraft v. Reyno: different standards for foreign π’s
o US has little interest in the case: accident didn’t happen here + how relatively unfavorable the law of
alternative forum is, does not matter as long as there is some remedy
o Foreign state’s interest is overwhelming
Transfer of venue within the federal system: 28 USC § 1404
o Could be done at any point of the lawsuit subject to “interest of justice”
o Difference between state and federal: even if jurisdiction and venue is all satisfied, you can transfer to
any place in the country for convenience of parties, witnesses, interest of justice as long as the
destination was somewhere the parties could have brought the suit originally (not waivable by Δ)
o motion by either party or sua sponte
o Discretion of the transferring court  transferee court has to accept
Fulf Oil v. Gilbert: Spurred these forum non convenience changes 1948ish
o common law used to let you dismiss w/o prejudice  bring the suit somewhere else
o US suits: transfer is the only way
o when motion granted, it is assumed that there’s alternative venue
o Grounds for dismissal:
i) private interests: burdens on the parties
ii) public interests: interests of the community to hear the case
Subject Matter Jurisdiction
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Article III creates SCOTUS and gives outer boundaries of the power for fed courts at discretion of Congress
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our federal court system has a subset of the maximum allowed power
o Two step process: Power affirmatively authorized by law?  Constitutional?
o diversity and federal questions
Diversity
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Why diversity at all?
o local bias against Δ or π if he has to chase Δ to home state
o jury is from a more diverse area (district) vs. in state, it’s county level
o difference in administration of law (fed judges are appointed at national level, state are mostly elected)
o Criticisms: lots of other ways to discriminate other than state citizenship; no actual prejudice needed;
federal court boundaries are still the same as state; burden on federal court system; bias for corporation
to access federal courts; in-state Δ’s can’t remove to federal court but in-state π can sue in federal court
o Entities other than corporation has citizenship in citizenship of all members
o Time of citizenship is determined at filing of lawsuit  can’t be “cured” later except for joinder rules
Strawbridge v. Curtiss: Complete diversity required: All and each party needs to be able to sue in diversity
Alienage: at least one US v. US subset (what about US v. Chinese, Wolff says ok)
o Purpose: local bias eliminated in federal court; show foreign nations respect
o alien v. alien no
o alien v. alien + US citizen  no
o alian + US citizen v. alien + US citizen  yes
o Dual nationals usually destroy diversity; alien copropations w/ principle business outside = citizen of
state of incorporation; foreign = may look at foreign law
Amount n Controversy:
o π has value >$75k passing “legal certainty test” ; Δ only has to show preponderance to remove
o not sure about coutnerclaims and attorney’s fees
o aggregation of claims is ok w/ 1π and multiple claims or multiple π’s with similar interest
o Class action: $5mm, only named π’s need to satisfy
Federal Question
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“Arising Under” – General Purpose Federal Questions
Louisville & Nashville Railroad Co. v. Mottley: Federal question needs to appear in well-pleaded complaint
o Federal question only came up as an anticipated defense, cause of action was breach of contract
i) My cause of action is valid because [substantial federal question]
o Court limited the reach of the federal courts  jurisdiction needs to be determined at the outset of case
o Two step process: does federal statute apply to the cause of action? Is it constitutional?
Smith v. Kansas City Title: Scope of “Arising Under” and “substantial federal question”
o directly challenges a federal program: touches constitional question + could determine success of the
Congressional program at large
o Substantial: dispositive to the suit, federal interest/programs, how much does it affect future suits
Merrell Dow: federal question not dispositive to suit, incidental to federal interest  not substantial
o “well-pleaded” complaint but not good enough. FDA enforces its own rules, doesn’t depend on private
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o One of many pieces of evidence for neg. + court didn’t care to “Unify” FDA standards  not substantial
o There was no pre-emption and the federal question wasn’t just “merely colorable”
Grable & Sons v. Darue: Federal interest in collecting taxes. Cause of action “turns” on the fed question
o directly challenges IRS’s process of collecting delinquent taxes  big federal interest + essential element
o does not disturb balance of state and federal division of labor: would not “open floodgates”
Pendent, Ancillary and Supplemental Jurisdiction
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Joinder rules: have to account for every party and every claim
o whether there’s jurisdiction is completely different than whether suits maybe joined together
o Joinder: tacking claims w/o original subject matter jurisdiction (SMJ) onto another w/ original SMJ
o Illustration: π(CA) v. Δ (CA) claim 1: Federal Antitrust; claim 2: state antitrust
i) how does claim 2 get heard in federal court? Have to satisfies supplemental jurisdiction
ii) Once supplemental jurisdiction is established, claim 2 may hang on the anchor claim 1
o Article III authorizes this? if close enough relationship between claim 1 and claim 2, it makes ONE
constitutional claim  SMJ satisfied
United Mine Workers v. Gibbs: “common nucleus of operative facts”
o Claim is expected to be tried in one judicial proceeding + substantiality of federal issues
o Unless state question is HUGE or “first impression” and federal question is little  dismiss w/o prej.
i) federal ruling on state matters does not set precedent for state courts
o decided at discretion of federal court, unlike original federal SMJ
o Once there is supplemental jurisdiction  even if fed claim becomes unsuccessful, can still rule on state
Moore v. NY Cotton Exchange: “logical relationship” when Gibbs’s nucleus isn’t satisfied
o Deciding on the federal claim necessarily renders decision on the judgment sought for the state claim
Owen Equipment v. Kroger: lack of complete diversity spoils all jurisdiction – Gibbs+Moore+ statute
o Beyond “common nucleus of operative fact” there must be something more  not satisfied here
o Cannot risk having π’s circumvent §1332 in bad faith even if Gibbs and Moore are satisfied
o So, if she didn’t revise claim, it would have “hung on”?
o Dissent: there was no bad faith in this particular case, π had no control over who Δ impleaded
Finley vs. US: Cannot add third parties
o Big federal claim was only “factually relevant” to the 3 joinder party state claims  not good enough
o Gave rise to §1367 which overruled this case and said joinder parties are fine
28 USC §1367 – pg. 414-415 book exercises
o §1367(a) expands affirmative authorization to maximum power of Article III
i) everything that passes the Gibbs or Moore test except: any other statute and §1367 (b) and (c)
o §1367(b) takes it down a notch and set limitations to preserve all policies of §1332 diversity cases
i) claims by πs against persons joined under Rule 14,19,20,24 (impleader, necessary party, general
joinders, intervention (non-parties join themselves)) are barred if not diverse
ii) claims by any parties joined by Rule 19, 24
iii) Counterclaims Rule 13 are not barred
iv) Rule 20 glitch: if second π comes in and sues Δ w/o satisfying §1332’s $75k but diverse it’s ok
v) Rule 23 glitch: if unnamed class action members don’t satisfy $75k but diverse  also ok
o
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§1367(c) gives discretion to grant jurisdiction
i) are the facts really tied up enough? interests and division of labor between state and federal?
o §1367(d) tolls statute of limitations
Removal Procedures – must have original jurisdiction to remove
o Only out-of-state Δ’s may remove even if counterclaimed against π, π still cannot remove
o 30 days or waived right: file notice of removal  serve notice of removal to parties and state court
i) π may have 30 days to file motion to remand back to state
ii) SMJ is ALWAYS reviewed at anytime
iii) If as a result of some intermediate judgments made lawsuit removable (non-diverse party booted,
$ is up, or federal question raised(does this mean Motley could have done it this way even though
not available before?))  30 days to remove by Δ
(1) if diversity suit, this intermediate removal has to be within 1 year
Erie and the Applicable Law in Federal Diversity Actions
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PA law vs. NY law  conflicts of law; Federal vs. State law  Erie Doctrine
28 USC §1652 – Rules of Decision Act: The laws of several states, except where the Constitution or treaties
of the US or Acts of Congress otherwise require or provide, shall be regarded as Rules of Decision in the
courts of US, in cases where they apply. (slightly circular, they apply where they apply)
o Federal question  federal law
o Everything else  state law (common and statutory)
Swift v. Tyson: Federal courts follow federal common laws and state statutes, not judge-made laws
o substantive: didn’t adopt common law because it was just judges deciding natural features of human
interaction  not binding
o procedures: Conformity Act  federal courts did not have their own procedures/rules, adopted states’
1934: Rules Enabling Act gave federal courts the power to create their own procedural rules
1938: FRCP and Erie  Federal District Courts are bound to the state courts’ common law (statutory and
judge-made) w/ regards to state and interstate (diversity) matters legal positivism and delegation of lawmaking powers to judiciary. When judges decide, it’s also binding law.
Erie R. Co. v. Thompkins (1938 Brandeis):
o Three concerns with the way that things were going:
i) Swift has been hotly contested and flawed (push to unify laws to promote inter-state commerce did
not work at all). Other than federal preemption, state law should apply
ii) giving π too much power to dictate what liability Δ will bear  forum-shopping is unconstitutional
(1) Black&White Taxi v. Brown&Yellow Taxi  prime example (out of state π, often big corp.)
iii) Federalism: federal courts should not be making laws for states
o Twin Aims: prevent forum shopping + promote equity administration of state law
o Vertical vs. horizontal forum-shopping
i) horizontal is more justified. States should have their own policies
ii) vertical is especially bad because two very similarly situated parties can have very different results
depending on they are diverse or not  inter-state discrepancies
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Dissent: Constitution shouldn’t be analyzed the way it was. It actually does not make federal court
apply state law  RDA does
Guaranty Trust Co. of NY v. York: “Substantive liability and policy rules vs. Federal Procedures”
o Want vertical uniformity of decisions: if it affects outcome to a great extent  apply state law
o However, federal courts have defining characteristics with its own procedures that do not address the
state’s liability and policy rules.
o SOL is substantive right or “statue of mere remedial character”? Substantive  federal court cannot go
outside of the bounds of state rights in a diversity case
Byrd v. Blue Ridge: “State and Federal Interests” what is bound up within states’ substantive rights
o Federal system is an independent system where judge/jury question is defined by 7th Amendment
o Jury/judge was an administrative decision of the SC courts procedural
o doesn’t offend twin aims of Erie and it cannot alter the essential character or function of federal courts
o Outcome might not be that different anyway
Hanna v. Plumer: 2 track method, if there’s federal rules that govern displace state rule, skip Erie
o Service performed according to 4(e)(2), different from MA requirements = genuine conflict in procedure
o 4(e)(2) is not outside of REA. Procedure: judicial process for enforcing rights and duties recognized by
substantive law and for justly administering remedy and redress for disregard or infraction of them
i) Incidental vs. substantive (abridge, enlarge or modify state rights)
ii) at a particular part of the lawsuit, all procedural changes will change outcome, we evaluate ex ante
o constitutional provision for federal court and Congress’s power to regulate matters of procedure
o FRCP is Congress-made law  difficulty for the first track is defining the rules’ scope? Is it within REA
Track Assignment
o In general: 2 questions – Is federal broad enough to cover the issue? Is the federal rule valid/pertinent?
o Illustration: Rule12(b)(6): mechanism to challenge sufficiency of the claim, but state law governs what
those elements for the particular cause of action actually are. Same logic with Rule 8: mechanism /
requirements for pleading and affirmative defenses: doesn’t mean you have any if not provided by state
o 1980 – 1990: 3 big decisions by Marshall
i) Walker v. Armco Steel Co. (1980): FRCP 3 did not clash w/ state SOL. Defined commencement of
the law suit, state can still define when does SOL start tolling (like at service of notice) very
narrow reading of Rule 3 to avoid direct conflict. didn’t Guaranty already rule SOL to be substantive?
(1) West v. Conrail: FRCP 3 does toll the SOL in federal question cases
(2) Contrast with Walker: good federalism illustration: state matter federal procedure + state
law; federal matter  federal procedure + federal law
ii) Burlington Northern RR. v. Woods (1987): FRCP 37 and 38 gave court discretion to award comp
damages for frivolous appeals while state had policy had 10% across the board  direct conflict 
FRCP displaces AL policy-setting damages
iii) Stewart Organization v. Ricoh (1988): AL law had nothing to do w/ removal procedures. §1404(a)
is a case-by-case analysis. single “field of operation”  §1404(a) rules. Statutory interpretation
(1) Dissent (Scalia): no conflict. K is governed by state law, Congress had no intention to displace
Gasperini v. Center for Humanties: R59 provides mechanical framework, NY law provides substantive std.
i) Remittitur: ct. of appeals can take π’s large verdict and either order new trial R59 or you take $xxx
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ii) Disaggregate the rules from mechanism and substantive ruling standards
iii) But using the new standard on first impression requires totally remand back to district court as
required by the 7th Amendment
Shady Grove v. Allstate, Ins.: R23 and §901 are directly conflicting procedures  R23
i) Remittitur: ct. of appeals can take π’s large verdict and either order new trial R59 or you take $xxx
ii) Disaggregate the rules from mechanism and substantive ruling standards
iii) Scalia (Majority): on its face, R23 says can maintain, §901b says no  direct conflict  FRCP rules.
Doesn’t affect substantive rights because if you can bring 1 $5m suit, same thing as bringing 10,000
$500 suits. Forum-shopping and inconsistency of punitive damages are incidental effects.
iv) Stevens (Concurrence): agrees that §901(b) is only procedural  R23 should rule, however, the REA
analysis (high hurdle)should look at the interaction between state and federal law formalistically and
practically. If the state procedural rules have substantive effects  consider it
v) Ginsberg (Dissent): formal and practical view of the state law. NY is trying to set liability policy for
these kinds of actions that could have sweeping effects on whole industries  should read R23 as to
provide mechanics and §901(b) for substance.
vi) Massive expansion of SCOTUS power to interpret federal rules to displace state substantive rules
o Summing up Erie analysis: Erie answers why we have diversity anyway?
i) desire to provide alt. forum but still keep twin aims of Erie
ii) Federal doctrines: statues or FRCP do not address the above concerns
(1) Congress may have power to do most of the things that Erie doesn’t allow
(2) REA has limited its powers to stay away from state substantive rights
(3) Sometimes interpret things narrowly to avoid conflict (Walker), sometimes sets policy (Burling)
Claim Preclusion
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What impact does a judgment in one proceeding have on the party’s ability to come back for round 2? OR
What are you going to include in claim one to give yourself a chance to litigate in claim 2?
3 Goals: Respect and not erode prior judgment; efficiency, litigate once; fairness to litigators
You may never raise preclusion against a non-party (issue or claim, not bound by suit 1)
Rush v. City of Maple Heights: Collateral Estoppel – “No 2nd try for the same parties for the same injury”
o π sues city for rough roads, brought different suits for bodily and property injuries  Same facts, same
injury  should have been one suit precluded
o Modern rules of collapsing claims and sometimes requiring collapse of claims  you may be precluded
from claims that should have been brought but did not in F1
Herendeen v. Champion: Same remedy but π sued under different Causes of Action  no preclusion
o Rule for claim preclusion: competent jurisdiction + final judgment + same parties and same C/A
o How do we know if it’s the same C/A?
i) does different judgment in suit 2 destroy rights of suit 1?
ii) same facts, issues, evidence?
o Wolff (Critique/Comment): wasn’t this another way of arguing for the same remedy? Modern claimpreclusion is treated as a very pragmatic matter. At judge’s discretion, if he thinks “what people would
expect” is pretty much the same  precluded
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Castello v. US: Claim preclusion only works on cases that had final judgment rendered on MERITS
o Lack of jurisdiction just means you get to file again in the right court  dismissed w/o prejudice
o Could have been issue preclusion in non-merit judgments like: citizenship is non-diverse, it’s not a
federal question,
o R41(b) dictates what the characteristic of the judgment is, not whether a suit is necessarily precluded.
Two are closely related but not the same.
o 12(b)(6) is precluded (amendments are allowed by R15 before Δ responds)
Issue Preclusion
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Requirements
o Actually litigated: actually adversarially contested
o Necessarily litigated: Sometimes it’s not easy to tell if things were litigated  did the jury general
verdict necessarily mean that something was presented and decided? (Little v. Blue Goose Motor)
o Same issue: For factual issues, little clearer. For legal issues, why that we define scope matters. If a
legal standard for the same element is different (crim vs. civil)  not the same issue
o Parties needed to have had the full opportunity to litigate (small claim courts for suit 1)
Almost always apply to different parties (otherwise, it’d be claim preclusion)
non-mutual when a new party preclude against a party in the first lawsuit
Kaufman v. Eli Lilly &Co.: Issues that were never litigated (default, omission, confession) aren’t precluded
o Δ never challenged the “concerted action” element of the suit get to litigate again
Advanced issues: Scope of Preclusion; Mutuality
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Taylor v. Sturgell: Cannot grant vicarious representation when concerned parties does not know they are
representing non-parties
o “one is not bound by a judgment in personam in a litigation in which he is not a party”
o Only exceptions:
i) Express agreement of the non-party
ii) Existing substantive legal relationships: preceding/succeeding property owners, bailor/bailee,
assignor/assignee
iii) Adequately represented: class-action, trustee, guardian
iv) If the non-party assumed control
v) Proxy/agent of prior party
vi) Statutory foreclosure: bankruptcy and probate courts
o Vicarious representation requirements: there are special procedures to protect non-parties,
understanding by non-parties that they are representing non-parties
o none of these factors were satisfied by the DC Circuit’s definition of vicarious representation in this case
 not allowed to preclude π