PERSONAL JURISDICTION
I.
Traditional (Pennoyer)
a. Direct Power over people and things inside
b. No direct power outside
c. Pennoyer Test
i. Tag
ii. Consent
1. Hess notwithstanding (“consented” to an agent for service b/c he drove
on the highway)
2. REAL consent
iii. Status- citizen/domiciliary/resident
iv. Property inside the boundary
1. in rem—property is a defendant; it binds the everyone
2. quasi in rem- combines personal liability and property interest
a. related-personam lawsuit requires the property’s existence (ex.
foreclosure on a mortgage)
b. unrelated-underlying lawsuit not related to the presence of the
property in the boundary; no longer valid due to Shaffer, so P
must show that Shoe jurisdiction exists
3. in personam
II.
Shoe Jurisdiction
a. LAS
i. must be analyzed first
ii. Do the defendant’s activities fit within the description of the forum state’s LAS?
b. Due Process
i. Minimum Contacts: Does the defendant have sufficient contacts with the forum
so that jurisdiction would not offend traditional notions of fair play and
substantial justice?
1. PA-MUST HAVE FOR MINIMUM CONTACTS
a. based on D’s voluntary actions
b. unilateral activities of a 3rd party do NOT count, nor do the
actions of the plaintiff
c. activities can’t be too passive (Kulko and BK)
d. making a K alone not enough (BK)
e. stream of commerce
i. mere forseeability not enough
ii. must have the expectation that the product WILL end up
there (WWVW and Gray)
iii. O’Connor says forseeability + something else
(advertising, agent, customer service, etc)
2. After PA…C&S and/or relatedness
ii. Reasonableness/fairness factors: is jurisdiction too unreasonable to satisfy due
process?
1. burden on defendant
2. interest of the forum state
3. impact on plaintiff, witnesses, etc.
4. efficiency
5. several states interest in the promotion of substantive policies
III.
Cases- Constitutional Limits
a. Pennoyer v. Neff-
b.
c.
d.
e.
f.
g.
h.
i.
i. “tag rule” (presence)- served w/ process in the forum (given gen. jurisdiction) or
an agent was tagged
ii. Property inside the boundaries
iii. Domicile
iv. Consent- def. consents to jurisdiction
Hess v. Peloski
i. Mass. had statute that if drove vehicle then you impliedly consented to
jurisdiction and gov’t agent was appointed for service of process for specific
jurisdiction
International Shoe- “ def. has such minimum contacts w/ the forum that excise of jur.
does not offend traditional notions of fair play and substantial justice”; very flexible test
and process can be served outside of the forum state; test if def. is not present when
served; THIS CASE DOES NOT OVERRULE PENNOYER
i. Contacts
ii. Fairness
McGee vs Int. Life
i. 1 contact w/ Cal. for breach of contract and Cal. has power to do this
1. Def. solicited that contract from Cal.- it reached out to Cal. to sell the
insurance
2. RELATEDNESS- the plaintiff’s claim arose directed from the def.’s
contact w/ Cal.
3. State’s Interest in providing forum for its ppl
Hansen- lady in Fla. Trust in Penn. (she dies in Fla.- is bank subject to jurs. in Fla.?)
i. No bank had no relevant contact in Fla.- her moving to Fla. was a unilateral
action
1. Contact must result from Purposeful Availment- def. reaches out to the
forum in some way
WWV- did business only in 3 states (not where accident took place)
i. No jurisdiction over WWV and Seaway bc it was the unilateral action of a 3rd
party
1. The def’s did not reach out to the forum
2. It is foreseeable that the automobile would get there
a. Foreseeability is relevant
i. Not enough that product would get there but must be
foreseeable that def. could get sued in that forum
Burger King- franchisee’s from Mich. sued in Miami
International Shoe has 2 parts:
i. Contact- must have relevant contract before you access fairness
ii. Fairness- in this case: “stop whining” you can travel; if you want to complain
about the burden then must show that:
1. Forum is so gravely inconvenient that at severe disadvantage in the
litigation (very tough to show)
a. Litigation does not guarantee you the best forum
Asahi- stream of commerce case
i. Justices split on this issue- get no law (great law school exam question bc could
argue both sides)
ii. Position 1:
1. Is a contact if product is put in the stream and reasonable anticipate that
it will get to other places
iii. Position 2:
1. Need more than placement
a. Need “Plus” factor- intent or purpose to serve the state (other
place)
i. Advertising
ii. Customer service in the state
iii. Product specialized for the forum
j. Burnham- served w/ process in CA
i. Does the traditional basis of being served while in forum serve by itself?
1. Courts split- traditional may be enough by itself or may need shoe too
2. Position 1:
a. Presence when served is its own basis bc of its historical
pedigree; has always been okay and don’t need Shoe
3. Position 2:
a. Don’t care about historical pedigree- must apply international
shoe
IV.
General Jurisdiction: D may be sued on any cause of action there, related or not
a. Pennoyer
b. Shoe
i. Continuous and systematic
ii. MUST BE VERY SIGNIFICANT
iii. Ex: Wal-Mart is so big it can be sued anywhere
V.
Recap- list of factors that will walk professor through
Framework of Long Arm statute:
1. can the statute be applied different ways
Framework of constitutional limits1. traditional (Pennoyer) apply?
- if have traditional then traditional might be enough but might have to go through MC
bc court split in Burnham
2. minimum contacts- Contacts- is there a relevant contact between def. and forum
- PA? did the def. reach out and avail herself to the forum?
- Foreseeability- has to be foreseeable that def. could get sued in the forum
If stream of commerce- argue both ways
- Fairness- if there is a contact then determine fairness
o Fair play and substantial justice
 High fairness and convenience can make up for small amount of
contacts (Burger King)
 Factors to look at:
 Relatedness- does claim arise from def’s contacts w/ the
forum if so then that helps find jur. (McGee)
 inconvenience of the def. and witnesses
o standard is very tough (BK)
 has to show gravely inconvenient that
disadvantaged in litigation
 state’s interest
 plaintiff’s interest
 legal systems interest in efficiency
 interstate interest in shared substantive policies (Kulkofamily harmony)
PROPERTY JURISDICTION
I.
II.
In rem
a. Action to determine status of property against all possible claimants.
b. Jurisdiction always OK for state where property exists.
Quasi in rem
a. Attach property as a way to have jurisdiction
b. Must pass minimum contacts test
NOTICE
I. Notice & Opportunity to Be Heard
A. Service of Process- FRCP 4
i. Process consists of summons and copy of complaint (4(a) and 4(b))
ii. Service can be made by any non party who is at least 18
iii. an individual is served by 4(e)
- 4(e)(2) 3 methods
1. personal service- anywhere in the forum state
2. substituted service (Abode service)- at def.’s usual abode and person
served is of suitable age and discretion who resides there
3. service of agent
-4(e)(1)- can use any method that is allowed by state law: where court is located
or where service is made
(this is typically where is you get service by mail if state allows it)
iv. Service of Business/Corporation FRCP 4(h)
- Officer or managing or general agent – enough job responsibility that can expect him
to transfer important documents
o 4(e)(1) applies here as well
v. 4(d) Waiver of Service (this is not service of process by mail it is WAIVER)
- Geographic Limits on serving process 4(k)(1)(a)
o Piggy back rule
 Can serve out of state if state court could serve out of state
o 4(k)(1)(b)-(c)-(d)
 Exceptions to geographic limits
Mullane- Constitutional standard for giving notice:
- reasonably calculated under all the circumstances to apprise the party of the suit
o service is proper even if notice is not actually received
- notice by publication (constructive notice) Ex. In newspaper
o is this constitutional?
 Usually no b/c it is not reasonably calculated under all circumstances
to alert
 Would be okay if for beneficiary that didn’t know who they
were then could do no more (typically last resort)
Jones v. Flowers- if become aware that notice was not actually received then might have to take
additional measures
B. Opportunity to be Heard- prejudgment seizure of property
1. Safeguards/ Protections (unclear how many have to be present to be enough)
A. plaintiff must give affidavit (sworn statement- must be specific)
B. Order from a judge
C. Plaintiff may be required to post a bond
D. at some point D gets a hearing on the merits
2. Fuentes v. Shevin: “Due process requires that, absent “extraordinary situations” (aka
“exigent” or “emergency circumstances”) a hearing of some sort must be accorded to persons
whose property rights are at issue prior to any seizure of that property by the state.”
3. Matthews test:
i. What defendant interest is at stake?
1. effect of deprivation on private interest
ii. What is the risk of error in light of the procedural safeguards that are given?
iii. What is the interest in the private plaintiff in getting the prejudgment remedy?
1. interest v burden of providing protection
SUBJECT MATTER JURISDICTION (see 9/22 handout)
-different for personal jurisdiction (you need them both)
PJ- over the parties; SMJ- over the case
State or federal court? Federal courts have limited SMJ- can only hear certain kinds of cases
Federal Court- diversity of citizenship or federal question
State courts- general jurisdiction can hear any claims
-state courts cannot hear some federal question cases- very few where there are exclusive federal
jurisdiction: patent infringement, antitrust
- must satisfy Article III
- Why a court would be motivated to dial down federal question jurisdiction so much?
 stepping on the toes of the state
 flood of litigation to federal court, fewer federal judges, backlog problem
TEST for “arising under” = “Holmes creation test”.
 When federal law creates the remedy the plaintiff is suing for.
 If the plaintiffs claim requires an interpretation of the law.
 A policy of the act requires that federal principles control the disposition
of the claim.
A. Diversity of Citizenship 28 USC §1332(a)(1) (statute)
Have to have citizens for different states and have to have amount in controversy that
exceeds $75,000
1. Citizenship
A. Citizens of different states
a. complete diversity rule- no diversity if any plaintiff is a citizen of the
same state as any defendant
b. what is the citizenship of a human being?
1.Domicile- (you only have one domicile at a time- can only be a
citizen of one state at a time; everyone has a domicile) have to have both intent and
presence
i. presence in the state
ii. intent to make that your permanent home (subjective)
Hypo: someone born and raised in TX – goes to school in Mass. for four years; goes to NY for 3 years;
med. School in 4 years in CA; Domicile- still TX b/c other states has never informed intent to make other
places home
B. Citizenship of a Corporation 1332(c)(1)
-can be a citizen of more than one state (it is and nor or)
i. of all states where incorporated and
ii. the one state where the corporation has its PPB
a. Test for PPB
o nerve center: where the decisions are made (usually
headquarters)
o muscle center (place of activity) place were
corporation does the most of its stuff then anywhere
else
o Total Activities Test (this is what most courts will
do) use nerve center unless all activity is in one state
2. Amount in controversy
i. it must exceed $75,000
ii. whatever the plaintiff claims is okay unless it is clear to a legal certainty that
she
cannot recover more than $75,000.
iii. plaintiff’s ultimate recovery is irrelevant to jurisdiction determination
iv. Aggregation- adding multiple claims to get over $75,000
 can aggregate is one plaintiff vs. one defendant
 can add all claims; claims do not have to be related in
anyway
 can not aggregate if there are multiple parties on either side
 with joint claims use the total value of the claims (true regardless of
the number of parties); “joint claim” look for the word tort
 Example: joint tortfeasors then total of the claim don’t care
about the number of parties
B. Federal Question (FQ) §1331
Citizenship is irrelevant and there is no amount in controversy requirement
i. must arise under federal law
- look only at plaintiff’s complaint
o well-pleaded complaint rule- that states a claim and has no extraneous stuff
o look only to the claim itself; not to extraneous matters
o can arise under any federal law
- Mottley
o Is the plaintiff enforcing a federal right?
 Look at federal law- does the person have a right under that law?
C. Supplemental Jurisdiction- must have diversity or FQ first; § 1367
-for every claim asserted in federal court there must be federal subject matter jurisdiction- not just the
original claim but any additional claims as well
Supplemental Claims and Parties
i. Ancillary jurisdiction – when another party is brought into the claim.
ii. Pendant jurisdiction – parallel claims arising from same action.
iii. Gibbs Rule – state and federal claims must derive from a common nucleus of
operative fact. (cause of action) federal issue must be substantial.
a. Judges have discretion to separate cases.
A. if the claim doesn’t meet diversity of FQ then might get into court through SJ- can hear
nonfederal (original claim must have met diversity or FQ first)
- Gibbs
o Can hear state law case if meets SJ
o TEST:
 If claims meet a common nucleus of operative facts
 Same transaction or occurrence (T/O)
 Same real world event
- 1367
 1367(a)?- yes if meets Gibbs (common nucleus of operative facts)
 Does 1367(b) take away the supplemental jurisdiction?
 APPLIES ONLY IN DIVERSITY NOT FQ
 Only kills SJ over certain claims by plaintiff’s (not by any
other party)
o Claims by plaintiff against party joined under FRCP
14, 19, 20, 24
or
o Claims by Rule 19 plaintiff
o Claims by plaintiff interveners
B. Removal- from state court to federal court b/c def. wants to go there § 1441, §1446, §1447 (all
relevant)
1. removal is a one way street- only goes from state to federal; if it doesn’t belong in
federal will be remanded
2. all def’s must agree on removal
3. only def’s can remove – a plaintiff can never remove a case no exceptions
4. you can only remove to the federal district embracing the state court were it was filed
5. must remove w/in 30 days of service of the document that first made the case
removable
6. General Rule: can remove if the case has federal subject matter jurisdiction (diversity
FQ)
2 Exceptions apply ONLY IN DIVERSITY NOT FQ
1. no removal if any def. is a citizen of the forum
2. can not remove more than 1 year after the case was filed in state court
VENUE
– which federal court do you go to; what is the appropriate district?
A. Basic Rules §1391
- May lay venue in:
o Any district where all def.’s reside if all def’s reside in the same State
 If all def’s reside in different districts of the same state then may lay
venue where any one of the def’s reside
 Resides is different then citizenship
 Resides- the district in which you are domiciled
 Corporation- 1391(c)
 Resides in all districts were it is subject to personal jur. when
the case if filed
o May venue in any district where a substantial part of the events or omissions
giving rise to the claim occurred
B. Transfer of venue (change of venue)
- Original court- transferor; transferred court: transferee
- UNDER BOTH 1404 AND 1406 THE TRANSFEREE MUST BE PROPER VENUE
AND MUST HAVE PJ OVER THE DEF. (must be independently true w/out a
waiver)
- 1404- motion for change of venue for mercy convenience
o The transferor is a proper venue (the court originally had proper venue) – it
does not correct venue mistakes
o The court is correct but the other court makes more sense
- 1406- if the venue is wrong in transferor court
o Transfer in interests of justice or court can dismiss
- you can only make a mercy transfer to where the case might have been brought
originally
plaintiffs have the choice of the forum because they have the burden of proof
C. Forum non conveniens (FNC) – court dismisses case bc there is another court that is far more
appropriate then this one
- if court is in another judicial system (typically that court will be in a foreign country)
o Ex. Piper- plane crash in Scotland; victims Scottish, everyone was Scottishcase brought in US and was dismissed bc need to have brought it in foreign
o
o
country- worked better for def. bc other country did not have strict liability
and would not recover as much
 Fact that would recover less in other court does not matter
Factors to look at for forum non conveniens: (footnote 6 of Piper)
 (same factors for 1404- the showing has to be stronger here)
Typically if dismiss will make def. submit to different things- such as waiver
of PJ or venue, etc.
CHALLENGING FORUM SELECTION
A. Special Appearance- challenging only 1 issue (PJ)
- FRCP 12
o w/in 20 days of being served w/ process
 motion- a motion is not a pleading it is a request for a court order
 answer- is a pleading
 rule 12(b) defenses- can raise these by motion or in an
answer-def’s choice
o lack of SMJ (never waived)
o PJ (waived if not raised timely- need to put in first
document)
o Improper Venue (waived if not raised timely- need
to put in first document)
o Insufficient process (waived if not raised timelyneed to put in first document)
o Insufficient service of process (waived if not raised
timely- need to put in first document)
o Failure to state a claim upon which relief can be
granted (not waived)
o Failed to join a party under Rule 19 (not waived)
 12(b)(1)- can be raised anytime- even for the first time on
appeal
- Hypo: motion to dismiss for insufficient service of process- court denies motion; def.
files and serves answer in answer asserts PJ and Venue- this were waived bc he
didn’t bring them up w/ the motion to dismiss so can’t do it
ERIE
- problem typically in diversity cases (Erie flow chart-see handouts)
Does the federal judge have to apply state law to determine Erie?
Black Letter Rule: state law must be applied if it is a matter of substantive state law
RDA- have to apply state law unless there’s a fed. law on point
Substance- when someone is liable
Substance= creates a right
Procedure= “how-to”
Hanna v Plumer- is there a FRCP or other federal law on point? If yes- apply federal law as long as
federal law is valid (because of supremacy clause)
FRCP are valid as long as they are arguable procedural- S/C has never held FRCP
invalid/unconstitutional
If there is no FRCP on point?
- 3 phrases:
o Outcome determinative
 Substantive b/c it is outcome determinative on statute of limitations
state law applies
o
o
Balancing test- Byrd
Will apply state law unless there is a good reason not to do so
 Ex. Federal courts interest
o Twin Aims of Erie:
 Avoid forum-shopping
 If federal judge ignores the state law would it encourage ppl
to flock to federal court?
 Inequitable administration of the law
- Gaspirini
- Hypo: class action under FCRP 23 but under state law it doesn’t qualify
o 1st step- Hanna, there is an FRCP on point so apply it b/c its valid so can stop
- Hypo 2: state A passes a statute b/c is concerned about health care. Statute says that
1st have to go to arbitration then after arbitration can proceed w/ regular litigation;
citizen of state B sues doctor in State A under diversity
o 1- is there a federal law on point? NO
o 2- is it outcome determinative (probably not)
o 3 balance of the interests
 State has a huge interest which probably outweighs federal
o Twin aims- if judge ignores the statute would it promote forum-shopping into
federal court? Yes bc citizens of state A can not go to federal court so it is
inequitable administration of law
***see Erie-Hanna outline and flow-chart***
PLEADINGS
A. Complaint- pleading by the plaintiff
- FRCP 8(a)
o Statement of SMJ
o Short and plain statement of the claim
 Notice pleading- not expected to give a lot of detail; state enough to
put def. on notice that being sued
 Rule 9(b)- fraud/mistake plead w/ detail
 Rule 9(g)- have to be specific if seeking special damages
o Demand for judgment
B. Answer- Rule 8(b) must respond to allegations of the complaint
o Denials
 If you fail to deny then you have admitted it
 Never deemed to have admitted damages though
o Admissions
o Lack sufficient information to admit or deny
- Rule 8(c) Raise affirmative defenses
o Injecting a new fact and if right then def win’s
o Must plead them or you waive them
- 12(b) Motion to Dismiss
o client does not have to admit or deny the facts of the case
o Answer (pleading): must admit what’s true; deny what’s false; deny what
we don’t know
o affirmative defenses
o counterclaim (rule 8(c))
C. Amending Pleadings Rule 15
-
-
Rule 15 (a)
o Rule 15(a)(1)(A)Plaintiff has right to amend once before def. serves his
answer
o Rule 15(a)(1)(B) Def. has right to amend once w/in 20 days of serving
answer
o Rule 15(a)(2) Ask for amendment from the court; typically allowed if justice
so requires
 Amend unless prejudices or delay
Rule 15(b)- variance (evidence at trial doesn’t match what is pleaded)
o If don’t object then comes in and treat it like its there
Rule 15(c) trying to amend after the statute of limitations has run
 Trying to amend to add a new claim or change defendants
Rule 15(c)(1)(B) relation back- if new claim concerns the same conduct, transaction,
or occurrence
Rule 15(c)(1)(C) – if didn’t originally know party but they actually received notice
JOINDER
-great way to test SMJ
A. Claim Joinder by the Plaintiff
- Rule 18(a)- can assert all claims that have against def.; don’t have to be related
o Can the case get into federal court?
B. Claim Joinder by the Defendant
1. Counterclaim- Rule 13(a) and 13(b); claims against an opposing party (against
someone who has sued def.)
A. Compulsory Counterclaims
1. Rule 13(a)(1)(A)- arises from same transaction or occurrence (T/O)must be filed or you lose the claim
B. Permissive Counterclaims
1. Rule 13(b)- counterclaim that does not arise from same t/o
-you may assert but don’t have to
2. Crossclaim- against a co-party and must arise from same t/o
- not compulsory
Hypo: 3 car accident, 1 person sued other 2 as codefendants
What claims should D assert?
D1 must file compulsory counter-claim against P
May assert crossclaim against D2 (no diversity over this claim bc
both from same state, no FQ, supplemental?
Does 1367(a) grant jurisdiction?
Yes- bc CNOF
Does 1367(b) take away supplemental? This is diversity case but only applies
when plaintiff is doing claims and the def. is doing the claims
C. Proper Parties
1. Rule 20(1)(a) Plaintiff joining
i. arise from same t/o and
ii. raise a common question
2. Rule 20(2) Defendants joining
i. arise from same t/o and
ii. raise a common question
D. Necessary and Indispensible Parties
- Parties who must be joined- plaintiff has left out someone who might want to be forced into the
case (an absentee- A)- the A is so related to the case that is necessary for the case
A. Rule 19
1. Is the absentee necessary? Yes if meets any of three tests
i. Rule 19(a)(1)(A) w/out absentee can the court accord complete relief;
if no then the absentee is necessary (worried about efficiency)
ii. Rule 19(a)(1)(B)(i)- if not joined then absentee’s interests may be
harmed
iii. Rule 19(a)(1)(B)(ii)- necessary if A’s interests would subject the def.
to multiple or inconsistent obligations bc of the interest
-joint tortfeasors are not necessary- the others can not be forced in
Hypo: A owe 100 shares of stock in XYZ corp. D claims that he owns half of it and that it would be
entered into jointly; D sued XYZ corp. and wants court order demanding that A’s stock be cancelled and
reissued in joint name
A is necessary bc there interests would be harmed
2. If A is necessary is joinder feasible?
i. personal jurisdiction over A?
ii. SMJ – if bring in A does not destroy diversity
3. if joinder is not feasible and can’t get absentee then court must decide whether
to proceed w/out A or dismiss the case
-is there another forum that plaintiff can get remedy if it is dismissed?
E. Impleader (if it starts w/ the letter “I” someone new is being joined) Rule 14
Def. party bring in third party defendant (TPD) bc the TPD is or may be liable to def. for the underlying
claim (typically indemnity or contribution)
PD
 (Third party claim) T (after assert then have to assert jurisdiction)
1. Rule 14(a)(3) plaintiff can assert a claim against TPD if from same t/o
2. Rule 14(a) (2) TPD can assert claims against P
Impleader (Rule 14)
i. TEST
1. Transitionally related
2. Derivative liability –must be liable for costs of defendant.
ii. Limitations
1. Always brought by defense
2. CANNOT be used against an existing party
3. Not bound by diversity – impleaded party not direct adversary to original
plaintiff.
4. Optional for defendant, does not waive right for later claim.
F. Intervener- third party intervenes on her own accord
1. Rule 24(a)
- A’s interests may be harmed if not joined and her interests are not adequately
represented now
2. Rule 24(b)(1)(B)- common claim or defense that shares w/ main action common
question of law or fact
* two limitations
1) must be timely
2) court has discretion not to allow it; “the court may permit” intervention
G. Interpleader – Statute § 1335
iii. Related subject matter + minimal diversity + $500 min. property value
1. Competing claims from at least 2 different states
2. Plaintiff deposits property with court and joins parties to determine who has
ownership.
3. Assumes plaintiff has interest in property.
iv. Jurisdiction § 2361 = national service of process
v. Venue § 1397 = any district with one claimant.
vi. State Farm v. Tashire – State Farm puts insurance money and joins all clams from
huge accident together to figure out if there is liability to their client. Court finds SF
could only join parties after determining their insured was liable.
vii. Rule Interpleader- Rule 22 = Federal question/Complete diversity + $75,000
1. When original party is not interested in property.
viii. Statutory Interpleader
1. only need one person on the D’s side to satisfy diversity; don’t need
complete diversity
2. no objections to PJ/ venue
F. Class Actions- Rule 23
First Step:
1. numerocity – class is too numerous for practical joinder
2. commonality- common questions among ind.’s
3. typicality- representatives claim must be typically of claims of the class
4. representative will fairly and adequately represent the class
Second Step: fit the class between recognized types
-all class members are bound unless you opt out of (b)(3)
G. Joinder of Claims
a. General Claim Joinder ix. Permission = Rule 18 allows any claims to be joined.
x. Power = Jurisdiction (diversity, federal question, supplemental)
b. Transaction TEST = (to increase efficiency)
i. Overlap of evidence
ii. Issue overlap
iii. Res judicata
iv. Logical Relationship
c. Counterclaim (Rule 13)
i. Compulsory – must be brought or right waived.
1. Arises out of same transaction or occurrence.
2. Transaction test similar to “arises out of common nucleus of operative fact”
from supplemental jurisdiction.
3. Logical Relationship!
ii. Permissive – allows any claim to be brought against plaintiff.
1. Not out of same transaction (“common nucleus”)
2. Must have separate basis for jurisdiction (diversity/fed. Question).
3. Optional for parties or court to allow
d. Cross-claim
i. Claims between co-parties – always permissive
ii. Must be from same transaction or occurrence.
iii. Defendants meet supplemental jurisdiction requirement.
iv. Plaintiffs would need diversity for jurisdictional requirement.
DISCOVERY
- very liberal
- must be relevant and non-privileged; privilege trumps relevancy
A. Required Disclosures-
1. Rule 26(a)(1)- initial disclosures that will be used to support the case
2. Rule 26(a)(2) Experts
3. Rule 26(a)(3)Pre-trial required disclosures
B. Discovery Tools
1. Depositions
a. Used when witnesses are beyond 100 miles (jurisdictional reach) or inaccessible for other
reasons. Exe. Impending death or leaving country.
i. May use deposition to impeach witnesses.
ii. To compel a third party may issue a subpoena
b. For corporations
i. Submit list of topics covered
ii. Corporation decides who answers questions
c. Supplementing responses
i. Must correct or add relevant information if it becomes available later.
d. Rule 27 – for depositions requested before claim is filed.
i. Prefiling a deposition obtained through convincing court of possible claim in
jurisdiction and showing deposition must be taken before person is unavailable. Exe.
Dies or leaves the country.
e. STEPS for procuring a deposition
i. All parties must be given notice
1. Description, time date method
2. May have to subpoena and therefore must serve subpoena.
ii. Include witness fees or travel expenses
iii. Must have official to administer oath.
iv. Prepare questions
f. Uses
i. May use to contradict or impeach witnesses
ii. Preference for live testimony, use of deposition only for specific circumstance.
iii. Don’t necessarily have to sign, only when requested.
iv. If errors happen during/in deposition, must make objection with reasonable
promptness.
2. Interrogatories (no more than 25 allowed)
a. Written questions submitted to any parties
i. Don’t have to have permission of the court
b. All questions submitted must be answered or objected
i. Objections must be stated specifically
c. When requesting business records, the owner of the records have a choice to either do the
research them self, or allow the requesting party access.
d. Scope covers material related to the suit at trial and must introduce for use as evidence. May
also request opinions.
3. Request for Production Rule 34
- Can get information from parties or nonparties (nonparties have to be subpoenaed)
3. Mental and Physical Exams
a. MUST have court order, allows judicial oversight.
b. The persons mental or physical status must be in controversy
c. Must show good cause; need vs. intrusiveness
d. If party does not submit to exam sanctions may be imposed:
i. May assume factual truth of allegations
ii. Cannot be held in contempt for not submitting to an exam.
e. Must submit report to other parties who request it
5. Request for admissions Rule 36
- only sent to parties not to nonparties
- can force parties to admit or deny
C. Scope of Discovery- can discover anything relevant to a claim or defense
Rule 26(b)(1); Relevant- reasonable calculated to lead to admissible evidence
1. Work Product Doctrine 26(b)(3) trial preparation materials
- material generated in anticipation of litigation
o if you have it then the other side can’t get at it
 it is immune from discovery
D. Sanctions
o Parties to the case may make a motion for sanctions against other parties.
o Parties may make a motion to compel other parties to answer questions
o PENALTIES for non response, evasiveness or incomplete disclosure
 May be assessed fee’s associated with the motion.
 If motion is denied, court may reverse fee.
o Failure to comply with a court order
 Facts can be considered established
 May not allow offending party from supporting or opposing claims
 Could strike the pleading party, or dismiss claim
 Party could be held in contempt of court
 May show reasons for non-compliance when asked to produce another person, and
failure has resulted.
o Failure to Disclose or false or misleading disclosure
 Cannot use undisclosed material in court
 If failure to admit evidence as genuine, court may impose fees
o Failure to attend deposition
 May establish use of sanctions, unless done in good faith
o Failure to participate in the framing of discovery
 Court may impose fees to offending party
E. Subpoena
o Used to compel witness testimony, answer to interrogatories, etc…
o Issued from the court
o Served to persons by a person unrelated to the court action.
 Served within jurisdiction of court or statute
o Failure to respond or obey the court order may result in a charge of contempt.
PRETRIAL ADJUDICATION
A. 12(b)(6)- motion to dismiss for failure to state a claim
(state courts demurrer)
- court does not look at evidence
o looks at complaint
 if everything plaintiff says is true then would the plaintiff win at
judgment?
 Legal sufficiency of the pleading- does the law recognize
this claim?
B. Summary Judgment Rule 56
- Court can look at evidence
o Deposition testimony, answers to interrogatories can be looked at
o General rule: pleadings are not evidence bc they are not signed under oath
o If def. failed to deny something that can be used as an undisputed fact for
summary judgment; can be relevant for admissions purposes
- Standard:
-
-
o No dispute on a material issue of fact
o Entitled to judgment as a matter of law
If true then don’t need a trial
o Can enter judgment as a matter of law
Courts tend to be nervous about giving summary judgment bc it denies jury trial
o Matshuzita
o Anderson
o Celotex – def. can move for summary judgment by pointing out that the
plaintiff has no evidence on some element of the claim; does not have to
offer evidence of his own
 Forces plaintiff to put up the evidence that have evidence to back
claim
 Granting summary judgment is discretionary
Those cases told the lower courts to go ahead and grant summary judgment more
often its okay
Summary judgment is discretionary
o Rarely granted for the party who has the burden at the trial
o Tougher to get in tort than in contracts
o *the court can never resolve a dispute of fact on a summary judgment
DIRECTED VERDICT
1. Judgment as a Matter of Law – Pretrial
a. Pre-trial after discovery.
b. Directed verdict – reasonable jury could not find for the non-moving party even with
the most positive light given to the plaintiff’s evidence.
i. Decided by the judge.
c. Galloway v. U.S. – plaintiff’s evidence contained a time gap only not explained by
direct evidence. Defendants made a motion for directed verdict and the court held
that a reasonable jury could not infer the plaintiff’s claim without support evidence to
explain the gap in the timeline.
i. Also held that the 7th amendment does not guarantee a jury verdict for all
claims brought to court. Historical analysis of past procedural devices
concluded many ways to control verdict in 1791.
2. Judgment as a Matter of Law – Post trial
a. After the jury verdict.
b. Judgment notwithstanding the verdict – a judge overrules the jury’s verdict holding
that the evidence does not support a reasonable jury’s verdict; in essence holding the
jury is unreasonable.
i. Allows the application of the directed verdict after the jury has issued a
verdict, which is then referred to the judgment notwithstanding the verdict
(J.N.O.V).
ii. Why & When
1. Reconsidering a preserved legal issue
2. MUST make directed verdict motion pretrial and therefore allow judge
to reserve a J.N.O.V.
3. Can refer to a directed verdict or J.N.O.V. motion as the “judgment as
a matter of law”, interchangeable.
TRIAL
Rule 38(b)- must demand jury in writing
If not party demands jury then there will not be one- the judge will decide in a bench trial
A. When do we have a jury right?
1. 7th amendment- only in federal court only in civil cases
- preserves the right to jury in cases at law and not at equity
o Way back in England
 law side- got a jury
 equity- didn’t get a jury
- What is the remedy that you are seeking? (primary focus)
o Remedy at law- damages (money to compensate for harm)
o Remedy at Equity Injunction- to do something or stop doing something
 Specific performance
 Reformation
 Recession
- What if a case claims both equity and law remedies?
Hypo: sitting on back porch- guy trespassing and won’t stop
-damages: don’t really get a lot
-you want an injunction
You sue for both damages (past trespass) and injunction to stop future trespass
Do you get a jury?
In past- would look at center of gravity and it is injunction so now jury
Today:
- Beacon Theaters and Dairy Queen
o Determine right to jury issue by issue
o If issue of fact underlies both law and equity then must get a jury on both
issues
 Try issues of law first- jury then do equity
o In hypo would get a jury on issue of whether the guy was trespassing bc
underlying fact
 Damages- jury
 Injunction – equity tried by judge
B. Selection of Jury- voir dire
- Get unlimited dismissals for cause
- Each side gets 3 preemptory strikes
- Edmenson and J.E.B. Alabama- you must have a race and gender neutral reason for
using preemptory challenges
o Will not be allowed to use challenges in race/gender bias way
C. Motions
- Judgment as a matter of law (JMOL) Rule 50 (looked at during trial)
- Standard:
o reasonable people would not disagree on the law
 based on evidence at trial
- Renewing motion as judgment as matter of law RJMOL- (JNOV- judgment not
withstanding the verdict)
o Jury reached a verdict that reasonable person could not have reached
 Judge can undo that by granting the JNOV
o To preserve the right for RJMOL all you have to do is move for JMOL at
some time during the trial
- Motion for new trial Rule 59
o
o
Some problem that was serious enough that need to start over
Granting motion for new trial is less radical then Renewed JMOL
APPEALS
- Review of what lower court did
A. Final Judgment Rule
- Can not appeal until trial court enters a final judgment and reaches an ultimate
decision on the entire case
- Make motion to preserve the issue but then have to wait for final judgment
- File notice of appeal w/in 30 days after final judgment
Hypos: court grants a new trial, can’t appeal
Grant or denial of RJMOL yes to either bc final
B. Interlocutory Review can appeal even if not final
- 1292(a)
- 1292(b)
o Allows trial judge to certify a controlling issue of law for immediate appeal
o Court of appeals must agree to take it
- FRCP 23(f) class certification
- FRCP 54(b)- multiple parties w/ multiple claims
o Allows final judgment on fewer than all claims
- Court made: Collateral Order Rule
o C of A- complete discretion to take if:
 Important issue separate from the merits
 Court has completely resolved the issue
 Issue if effectively unreviewable if have to go through trial
CLAIM AND ISSUE PRECLUSION
Does the judgment of case 1 which is completed stop us from litigated case 2 which is pending?
A. Claim Preclusion (Res Judicata)- you get to sue once on the cause of action
- Must demonstrate:
1. both cases were brought by same claimants against the same def.’s
2. have to show the case 1 ended in valid final judgment on the merits
 All judgments are on the merits unless based on jurisdiction, venue,
or indispensible parties (Rule 41)
3. both cases involved the same claim or cause of action
 Claim:
 Majority test: (federal law)
o The transaction or occurrence or a related series of
t/o
 Minority view: primary rights
o Different claim for each right invaded
Hypo: car crash- both injured and cars both injured
Case 1: Lucy vs Ethel- personal injuries; judgment entered
Case 2: Lucy v Ethel- property damage from same crash
Go through test:
1. same def. and claimants
2. judgment on merits- Yes
3. same claim?
- majority: Yes
-minority- No (2 separate rights)
Hypo: same facts
Case 1: Lucy v Ethel- go to judgment
Case 2: Ethel v Lucy
Dismiss by Preclusion? NO
Ethel was not a claimant before
Would still dismiss bc of compulsory counterclaim and she didn’t bring it
B. Issue Preclusion (Collateral Estoppel)
(more narrow is on the issue)
5 elements:
1. case 1 entered in valid judgment on the merits
2. same issue was actually litigated and determined in case 1
- a summary judgment does not give you issue preclusion
3. show that issue was essential to the judgment in case 1
4. against whom is estoppel used?
- only use estoppel against someone who was a party in case 1 (required
by due process)
5. by whom is estoppel used?
- mutuality- can only be used by someone who was a party in case 1 (not required
by due process)
-non mutual issue preclusion- party using it in case 2 was not a party in case 1
 non-mutual defensive issue preclusion
 hypo: own car and lend car to roommate and collides w/
X
o case 1- X sues roommate; litigate and roommate
wins; X was cause of accident
o case 2- X sues owner of car for bicarious
liability for what roommate did
 valid judgment on merits- Yes
 same issue litigated and determinedYes
 was that finding essential to judgment in
case 1- Yes
 using estoppel against someone who
was a party in case 1- Yes no due
process
 being used by someone not a party in
case 1- so nonmutual defensive
 under mutuality rule- NO
couldn’t do it
 today- most courts would say
yes if the person against whom
using it had a full chance to
litigate in Case 1
 non-mutual offensive issue preclusion
 hypo: same facts
o case 1- X sues roommate; roommate wins
o case 2- owner sues X
 can owner use collateral estoppel?
 1-4 requirements are met as in
previous hypo
 By whom being using?
o
o
o
o
Court will apply the preclusion law in case 2 of the system that decided case one
Non-mutual offensive
bc plaintiff in case 2
Under mutuality rulecan’t do it
Majority view today
would probably say no
however there is a trend
in favor non-mutual
offense led by federal
law that will allow this
if it is not unfair
Factors for fairness:
 Full chance to
litigate in case 1
 Could foresee
multiple suites
 You could not
have joined
easily in the
first case
 No inconsistent
judgments on
the record