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Latest revision as of 05:27, 9 October 2019

Civil Procedure
Authors Stephen C. Yeazell
Joanna C. Schwartz
Text

Taught by Nienke Grossman
Elizabeth Chamblee Burch
Donna Young
Jason J. Kilborn
Taught at University of Baltimore School of Law
University of Georgia School of Law
Albany Law School
UIC John Marshall Law School
Related course(s)
  1. Personal Jurisdiction
    1. Constraints on Jurisdiction
      1. Due process clause: a limit on state authority to hear cases involving certain defendants
        1. No personal jurisdiction = violation of amendment
      2. Article III: a limit on power of federal courts to hear certain kinds of cases
      3. Full faith and credit
        1. U.S. Constitution, Article IV §1: Full Faith & Credit Clause
          1. If a case did not have jurisdiction, courts in other states do not have to provide full faith and credit
      4. Any constitutional violations, even years later, voids case.
    2. In Personam
      1. Presence of individual in the territory at the time the suit is commenced
      2. Determined the personal rights and obligations of defendants
      3. No dollar limit to the recovery
      4. Personal service is required.
    3. In Rem
      1. A proceeding against the property itself
        1. Presence of the property within the territory at the time suit is commenced
        2. Plus actual legal seizure of the property at the time the lawsuit is commenced
      2. Recovery is limited to the value of the property seized
      3. Constructive notice is sufficient, if property is attached/seized
        1. Constructive notice – indirect notice where a person could reasonably see it
        2. Exceptions:
          1. Claims related to status
          2. Where a statute or contract requires a non-resident doing business in the state to appoint an agent or otherwise arrange for local service or process
          3. Where statute requires designation of an agent as a part of incorporation of a business or charity
    4. Quasi in Rem
      1. Court seeks to adjudicate a personal claim against the D that is unrelated to the property whose presence in the state serves as to anchor case and provide damages about personal responsibility, and perfect jurisdiction
      2. Service in publication suffices if the service is accompanied by seizure of the property
      3. Collateral Attack – a second suit attacking the judgment of a previous suit
      4. Quasi in Rem Type 1 -- Attach to satisfy debt (related
      5. Quasi in Rem Type 2 -- To get PJ (unrelated)
      6. Power, Consent, Notice


Pennoyer v. Neff: Neff hired Mitchell, left state and did not pay fee. Mitchell sued. Neff not a resident of OR, not personally served (constructive notice by publication), did not appear in Ct. Default judgment entered. Neff acquired 300 acres, Mitchell seized to satisfy debt, sold to Pennoyer. Neff sued Pennoyer in fed. ct. to recover land. Held: In favor of Neff. Reason: Property must be attached before suit. Constructive notice by publication is in effectual when ∆ is non-resident, can’t be located, suit is in personam.

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    1. General Jurisdiction
      1. Activities within the forum state must be continuous, systematic, and extensive
        1. that makes a business at home in the FS
          1. Incorporated or has its principal place of business in the FS


Goodyear Dunlop Tires Operations, S.A. v. Brown (2011): Two children from NC were killed in a bus accident in France as a result of a defective tire. Held: NC did not have JX. Reason: A court may exercise general jurisdiction over foreign corporations to hear any and all claims against them when their affiliations with the state are "so continuous and systematic" as to render them essentially at home in the forum state.
Daimler AG v. Bauman (2014): Plaintiffs alleged in CA F. Dist. Ct. MB Argentina collaborated with state security forces to kidnap, torture, and kill him and his family during a coup. Held: CA did not have JX. Reason: Must have principal place of business or be incorporated in FS in order to be “at home.” MB had too many connections with other states, suit could be brought anywhere if allowed in CA.

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      1. People always under GJ if they’re domiciled in FS
    1. Specific Jurisdiction
      1. When a party lacks systematic and continuous contacts with the forum state, the court can exercise jurisdiction if the cause of action arises out of the parties' contacts with the forum state.
      2. Minimum Contacts are activities which are continuous and systematic in forum state


International Shoe v. Washington (1945): Suit brought against Int’l Shoe in WA, but only salesmen in WA (sell, show, collect orders), no other business activities. PPOB in MO. Held: WA has PJX. Reason: If in personam and not in state, must establish minimum contacts (continuous and substantial) and give rise to the claim. Non-substantial activities can give rise to obligations if obligations arise out of or are connected with activities in the state. ISC had systematic and continuous contacts & resulted in large amt of interstate commerce.

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      1. Pennoyer is outdated. [D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ . . . [The demands of due process] are met by such contacts . . . as to make it reasonable . . . to require the corporation to defend the particular suit which is brought there.
      2. International Shoe creates sliding scale
        1. Light contacts support jurisdiction only over claims related to those contacts (“specific jurisdiction”)
        2. Heavy contacts support jurisdiction over unrelated claims (“general jurisdiction”)
      3. So, how heavy is heavy enough?
        1. For individuals: permanent residence
          1. Can be sued on all claims.
        2. For corporations: principal place of business, state of incorporation
          1. Can be sued on all claims


McGee v. International Life Insurance Co. (1957): Suit brought against Texas ∆ to collect life insurance in CA. Held: CA had JX. Reason: Franklin lived in CA, premiums mailed from CA, contract to extend reinsurance certificate delivered to CA. CA has interest in providing effective means of redress for its residents.

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      1. Must purposefully avail themselves of privileges and benefits of forum state


Hanson v. Denckla (1958): π sued ∆ to have trust probated in FL instead of DE so she would get the trust instead of her sister. Held: FL did not have JX. Reason: Trustee did not have minimum contacts with FL (no office and no business) except to sending checks to trustor. There must be some act in which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.

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      1. Stream of Commerce
        1. Asahi: “stream of commerce” -- Five-factor test in determining traditional notions of fair play:
          1. Burden on the ∆?
          2. Interests of FS?
          3. Interests of π?
          4. Interstate efficiency?
          5. Interstate policy interests?
        2. Is it enough that a business could reasonably foresee their product would end up in the FS?


World-Wide Volkswagen v. Woodson (1980): π (NY) sued ∆ (NY) for a products liability claim after a car accident in OK while passing through to AZ. Held: OK did not have JX. Reason: Did not have min. contacts or purposefully avail themselves. Foreseeing that a mobile vehicle could end up in a state is not enough to warrant specific JX. Dissent (Brennan): Legitimate interest in enforcing laws, placing goods into the stream of commerce with the expectation it would be purchased by consumers in the forum state may indicate purposeful availment.

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        1. Intent to target forum state?


J. McIntyre Machinery, Ltd. V. Nicastro (2011): π injured by machine made by company incorporated and operated in England which was sold to the US, but not NJ specifically. Held: NJ does not have JX. Reason: Must have entered goods into the steam of commerce with the intent to target the forum state in order to have purposefully availed itself. Two principles: PJ requires forum-by-forum analysis & ∆ may be subject to the JX of the courts of the US, but not any particular state. Dissent (G, S, K): Deliberately sold and marketed to US, sales substantial and ended up in NJ.

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        1. Cause harm in forum state?


Goodyear Dunlop Tires Operations, S.A. v. Brown (2011): Two children from NC were killed in a bus accident in France as a result of a defective tire. Held: NC did not have JX. Reason: In addition to continuous and systematic activities to have GJ, placing a product into the stream of commerce must ultimately cause harm inside the forum, not just exist in the stream of commerce, for the stream of commerce doctrine to justify general jurisdiction.

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        1. Internet Commerce
          1. Zippo sliding scale
            1. (1) the defendant clearly does business over the internet knowingly with repeated directed conduct, at the other
            2. (2) they simply post information, and
            3. (3) a website which is highly interactive and allows the exchange of information with the computer and the user.
          2. Calder Test
            1. the defendant's tortious act can establish personal jurisdiction where the plaintiff makes a prima facie showing that the defendant's acts
              1. (1) were intentional;
              2. (2) were targeted at the forum state; and
              3. (3) caused harm that the defendant knew was likely to be suffered in the forum state.


Abdouch v. Lopez (2013): π argues ∆ targeted her and NE by using her book w/ inscription as an ad on his website. Held: No JX. Reason: Zippo sliding scale (was highly interactive but no contacts with NE) & Calder Effects Test (not specifically targeted to NE, did not intend to, and didn’t know it would cause harm in NE).

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        1. In Personam and Quasi in Rem
          1. Must use the minimum contacts analysis in these cases
          2. Backpack Theory of PJ: Carry around with you your PJ. If debts held by creditor found in a state, debts can be attached to confer personal jx in that state, even if never been there.


Shaffer v. Heitner (1977): π’s attached property (seized stocks) of ∆ in DE to obtain PJ there. Held: Did not have JX. Reason: Quasi in rem jurisdiction may only be exercised over a person if the interests of the person in the things seized meet the minimum contacts standard. There were not substantial contacts between the state and interests of the defendant in the seized property. Property alone in FS is not enough.

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          1. Min contacts required over QIR2, so in the Backpack Theory, must have min contacts the debtor. That the creditor, carrying their debts as well, is in the state is not enough. Debt like property.
      1. Tag Jurisdiction
        1. Pennoyer v. Neff allowed ∆ to be served when in territory. Still good?


Burnham v. Superior Court (1990): The Burnhams divorced in NJ, Mrs. moved to CA with kids, Mr. visited kids while on business & she served him. Held: Courts have jurisdiction over people in that state, even if they're just transitory. Reason: Minimum contacts is confined to situations where ∆ is not in the FS. Being present in FS, historically, confers PJ.

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    1. Long-Arm Statutes
      1. Long-arm statute -- A state statute extending jurisdiction over nonresidents who have had contacts with such state.
        1. Rule 4(k)(1): Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
          1. who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
          2. who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or
          3. when authorized by a federal statute
        2. Must still have minimum contacts with the state.
      2. Fed district court jurisdiction is typically the same as the jurisdictional reach of the state in which they sit
        1. How far outside of its territory does the state seek to reach? (How long is the jurisdictional arm?)
      3. States can choose how far outside territory they can reach, subject only to constitution
      4. First question in PJ analysis must be whether the state has claimed jurisdictional reach
      5. States can reach across borders today, but notice still a way to object
    2. Consent
      1. 99% of contract cases are about consent because sign a contract agreeing to a jurisdiction
      2. A substitute for jurisdictional power
        1. Choice of Law
        2. Consent-to-Jurisdiction
        3. Forum-Selection Clauses


Carnival Cruise Lines, Inc. v. Shute (1991): F-S clause only allowing suits to be brought in FL, but π brought suit in WA. Held: F-S Clause enforceable. Reason: Unreasonable to assume passengers would negotiate, cruise line has a special interest in limiting where suit can be brought bc could be sued in many places, helps conserve judicial resources by reducing confusion, ticket purchasers benefit from reduced fairs, Carnival’s PPOB is in FL, and Shutes had notice & could have rejected it. Dissent (Stevens/Marshall): F-S clauses are unenforceable if they’re not freely negotiated, create additional $$, deny a remedy.

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      1. Arbitration Clauses
    1. Notice
      1. Ensuring parties all have sufficient notice to be able to defend themselves.


Mullane v. Central Hanover Bank & Trust Co. (1950): CHB est. a common trust fund and petitioned Ct. for settlement of its 1st account & provided constructive notice in local newspaper pursuant to NY Banking Laws. Held: Notice not sufficient (14th DPC). Reason: Notice must be reasonably calculated, under all the circumstances, to apprise interested parties and afford them an opportunity to object. Unknown parties can be notified by newspaper, but must mail to known parties. Can’t expect CHB to find all unknown parties.

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    1. Venue
      1. 28 USC § 1391(b) – Venue generally
        1. civil action can be brought in:
          1. a district where any ∆ resides, if all reside in the same state
          2. a district where a substantial part of the events/omissions give rise to the claim, or where substantial part of property is situated
          3. if no district pursuant to (a) or (b), then any district where ∆ has PJ
      2. 28 USC § 1406 – Cure or waiver of defects
        1. may dismiss for wrong venue or transfer to another where it could have been brought
        2. must object sufficiently and on time
      3. 28 USC § 1404 – Change of Venue
        1. for convenience, Dist. Ct. may transfer to any Dist./Div. where it might have been brought, or where all parties have consented
      4. Rule 12(b)(3)


Thompson v. Greyhound Lines, Inc. (2012): π bought a ticket from Pensacola to Tunica, but fell asleep and did not change buses in AL & missed court date. Sued in AL. Held: Venue not proper. Reason: Not switching buses in AL did not give rise to the claim & no diversity. Transferred to So. Dist. of MS b/c substantial portion of the events giving rise to cause of action occurred there.
Atlantic Marine Construction Co. v. U.S. District Court (2013): AMC subcontracted with J-Crew, which included a F-S Clause for suits to be brought in CCt. for City of Norfolk or USDC for ED of VA. J-Crew sued in Texas, AMC moved to dismiss or transfer to VA. Held: Ct. should have transferred. Reason: If parties have agreed to a valid forum-selection clause that designates a federal venue, the case should be transferred to the designated district. 

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        1. A forum-selection clause is enforced by a Motion to Transfer under 28 U.S.C. §1404(a) or a Motion to Dismiss for Forum Non Conveniens if the contract specifies only a state court forum, but not by a Rule 12(b)(3) motion because the existence of a forum selection clause does not impact whether venue is proper under §1391.
      1. forum non conveniens
        1. Courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties.


Piper Aircraft v. Reyno (1981): Piper airplane, made in US & operated by Scottish air taxi, crashed in Scotland & killed all. Administratrix sued in CA b/c US laws would be more favorable. ∆ moved to dismiss on forum non conveniens. Held: Venue was improper. There’s a more appropriate forum. Reason: Showing law in alternative forum would be less favorable to π is not enough. Evidence & third-party ∆’s easier to get in Scotland, they have higher interest in case than USA, not likely to deter manufacturers from making faulty planes.


  1. Subject Matter Jurisdiction
    1. Generally
      1. A question of the power of the courts
      2. Jurisdiction of federal courts not intended to be exclusive
      3. For a court to have the power to enter a binding judgment, it needs personal and subject matter jurisdiction. Requirement flows from:
        1. PJ: DP Clause
          1. Addresses relationship of state to ∆ and to claim
          2. Rule 12(B)(2)
        2. SMJ: Article III
          1. Addresses boundaries of federal judicial power
          2. Rule 12(B)(1)
    2. Diversity
      1. Concurrent jurisdiction -- case can be brought in either state or federal court (e.g. diversity)
      2. Reasons for federal diversity jurisdiction
        1. In order to provide a neutral forum
          1. Exxon Mobile Corp v. Allapattah (2005) -- to prevent discrimination by one court over citizens of another state, a neutral forum
        2. Congress has legislated in ways that appear to have national case justification
          1. That cases are national in scope and implication and should be heard in a federal court
      3. Definition of Citizen
        1. Of a country -- oath of allegiance
        2. Of a state -- present with intent to remain
          1. Some people may reside temporarily in different places for considerable periods (students)
        3. Representatives of children, incompetents, or deceased has same citizenship as individual represented.
        4. Citizenship must be established at the time the complaint is filed.
          1. Residency is not the same as citizenship.
          2. Citizenship at time of filing the case is controlling.


Redner v. Sanders (2000): π US citizen living in France, ∆ are NY citizens. π asserts fed. jx. based on diversity. ∆ move to dismiss for lack of jx (R12(b)(1)). Held: No diversity. Reason: Must establish citizenship, and residency is not the same as citizenship. Did not provide enough information about his citizenship to establish diversity.

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      1. Complete diversity: Strawbridge v. Curtiss (1806)
        1. If anyone in a party is not diverse from the other party, then there is no diversity
        2. Prevent bias to one state/side
        3. Courts can dismiss a non-diverse party who is not indispensable, instead of dismissing the entire case (Newman-Green v. Alfonso-Larain (1989))
      2. Corporations can have two states of citizenship -- principal place of business and state of incorporation
        1. Nerve Center Test -- wherever the HQ is, is where the PPOB is
          1. First created in 1958 due to concerns that corps would incorporate away from where most of their business was to get diversity


Hertz Corp. v. Friend (2010): Employees allege failure to conform to CA wage/HR laws. Hertz invokes diversity. Employees argue PPOB is CA because plurality of business activities occur there. Held: No jurisdiction in CA. Reason: Established the nerve center test -- PPOB (HQ) is where a corps officer direct, control, and coordinate activities. Nerve center is a single place.

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      1. Amount in controversy required: 75k
        1. To prevent minor disputes from flooding courts
        2. Inability to recover amount does not show bad faith or oust jurisdiction
          1. That plaintiff was never entitled to it, or cannot recover it, dismissible
        3. Tests for injunctions instead of money
          1. Value to plaintiff
          2. Cost to defendant
          3. Cost or value to plaintiff invoking federal jurisdiction
          4. Allow jurisdiction if any of the tests yields a figure above 75k
        4. How much is enough in diversity?
          1. Aggregation of plaintiff's different claims (p. 233 guidelines)
          2. Aggregation of claims of different plaintiffs
          3. Counterclaims and cross claims
    1. Arising Under/Federal Question
      1. The meaning of "arising under" in Article III is broader than the same in §1331
        1. Supreme Court has broader "arising under" jurisdiction than does district courts
      2. 28 USC §1331 -- Broadest grant of federal question jurisdiction
        1. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
      3. Constitution, Article III, Section 2
        1. The judicial power (supreme court?) shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.


Louisville & Nashville Railroad v. Mottley (1908): Mottleys injured in railroad accident, given free lifetime passes. Congress bans free passes. Mottleys argued in federal court B of K violated 5th amendment DP Clause. Issue: Lower court had jurisdiction? Held: No. Reason: A suit arises under the Constitution and laws of the US only when π’s statement of his own cause of action shows that it is based upon those laws or that Constn. π did not show that his cause of action arose under the Constitution or the laws of the US. In their complaint, π alleged breach of K because the RR would not honor the K because of the statute. B of K = legal theory π relies on. Statute = ∆’s anticipated defense. The CoA doesn’t arise under the Constn.

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      1. Well-Pleaded Complaint Rule
        1. Rule 8(a)(1) requires every fed complaint to begin with a short and plain statement of the grounds of jurisdiction
        2. The claim arising under the Constitution must appear in the complaint, not in the answer or defense.
        3. A well-pleaded complaint must state that the defendant directly violated some provision of the Constitution
        4. Cannot anticipate a federal question in order to get jurisdiction
      2. SCOTUS said they did not have SMJ because FQ was a defense, not in the plaintiff’s claim. Did not have the power, so dismissed entire case. Goes over again. FQ jx arises, but also FQ jx under constitution & that says if a state court makes a determination about fed law or constitution, that’s appealable to SCOTUS.
    1. Supplemental
      1. Supplemental jurisdiction -- originated in case law to cover parts of cases that if brought independently would not have fit within the district courts' subject matter jurisdiction
        1. There are some powers in Article III which have yet to be exploited. Supplemental jurisdiction fills in some of those gaps.
        2. 28 USC 1367
          1. District courts have supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy
      2. A loose factual connection can be enough to provide supplemental jurisdiction as long as theyre common and operative.
      3. State law claims must not substantially predominate over the federal claim, and must not raise complex or novel issues (28 USC §1367(c)(1) and (2)).


In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (2007): House fraudulently valued too high. Sued on state fraud claims and federal TILA claims. Held: Yes, supplemental jurisdiction. Reason: Loose factual connection enough if common and operative. If they dismiss state claims, they might not be able to grant TILA relief. Without determining issue of over-appraisal, not able to determine relief. State claims do not substantially predominate federal claims.
Szendrey-Ramos v. First Bancorp (2007): Investigated ethical/legal violations at bank, was fired as a result. Sued on Title VII and PR employment, defamation claims. Held: No supplemental. Reason: State law claims substantially predominate federal claim. Claims outnumber and scope exceeds federal. Distinct elements of proof unnecessary for fed. claim. State law claims raise novel or complex issues. Extensive investigation necessary. PR never addressed issue before, so PR should be first to do so.

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    1. Removal
      1. 28 USC §1441
        1. Defendants can remove to a federal district court with original jurisdiction, within 30 days & multiple defendants all have to confer & agree
        2. May not remove from the state in which you are a citizen
        3. If a civil action includes
          1. A claim arising under the constitution, laws, or treaties of the US, AND
          2. A claim not within the original or supplemental jurisdiction of the district court, or a claim has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described here
        4. upon removal, the district court shall sever from action all claims described above and remand them to the state court from which the action was removed.
        5. A plaintiff can move to remand if they believe it is in error
      2. 28 USC §1446
        1. A removal notice should contain a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action


Caterpillar, Inc. v. Lewis (1996): Lewis sued Caterpillar and Whayne in KY state court, Liberty Mutual intervened as a plaintiff for workers comp. LM had to pay Lewis on behalf of his employer. Lewis and Whayne settle < a year later. Caterpillar removed, making 1yr deadline by a day. Caterpillar assumed Whayne would be dismissed, so it would be removable. Lewis moved to remand because LM hadnt settled with Whayne. Dist. CT. denied. Held: Yes, removable. Reason: if a jurisdictional defect remains uncured, the judgment must be vacated. In this case, there was no jurisdictional defect at the time of the judgment. By the time the court handed down it's judgment, Whayne and LM had settled and been dismissed from the suit. Thus, diversity jurisdiction was established.

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    1. Erie Doctrine
      1. Two principle means by which the Const'n creates that framework:
        1. Limits the powers of states over defendants
          1. Personal jx
        2. Enumerates powers of the federal courts (in effect, limiting)
          1. Subject matter jx
      2. Rules of Decision Act (28 U.S.C. §1652): The laws of several states shall be regarded as rules of decision in civil actions in the courts of the US where they apply.
      3. Rules Enabling Act: A rule may not “abridge, enlarge or modify” any substantive right.
        1. Incidental effects on litigants’ rights are not enough to make a Federal Rule invalid under the REA.
        2. For a Federal Rule to be Constitutionally valid the rule must regulate matters that are procedural or can be classified as procedural and substantive – courts ask does the rule regulate the judicial process for enforcing rights?
      4. Swift v. Tyson (1842)
        1. In diversity cases federal courts are free to disregard state judicial rulings—they are bound only by state statutes. Federal courts are not required to apply state common law rules.
          1. “Laws” in the Rules of Decision Act are usually understood to mean rules and enactments promulgated by the legislature
          2. Decisions of courts do not constitute laws, but rather are at most “evidence of what the laws are.” They deserve consideration but are not conclusive authority.
        2. [The Swift] doctrine rests upon the assumption that there is “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, that federal courts have the power to use their judgment as to what the rules of common law are and . . . the parties are entitled to an independent judgment on matters of general law.”
        3. Not telling ct to ignore states, saying that they don’t have to follow states if they don’t want to, and present their case
        4. Not enumerated in constitution, just "inherent" in the design of the constitution
          1. Since 1938, been trying to escape this doctrine


Erie Railroad v. Thompkins (1938): P was walking on a footpath parallel to the Erie railroad tracks when he was struck by open door of a passing train & injured. Fed Dist Ct, relying on Swift, applied neither NY nor PA common law, but instead applied federal common law. Held: In actions in diversity, except in matters governed by the Constitution or acts of Congress, federal courts must apply state common law in addition to statutory law. The federal courts cannot develop substantive common law applicable in diversity cases but they can enforce federal procedural law.

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      1. Erie Railroad v. Thompkins (1938)
        1. Justice Brandeis: The law to be applied in any case is the law of the State. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general.’
          1. First: The Rules of Decision Act, as studied by a scholar, requires federal courts to use the law of the state where the court resides, including statutes and state case law.
          2. Second: The Swift doctrine has prevented uniformity and created discrimination by non-citizens against citizens of a state in diversity courts. It allowed rights enjoyed under unwritten "general law" to vary according to whether enforcement was sought in state or federal courts, and non-citizens had the privilege of selecting the court in which the right should be determined.
          3. Third: RDA must be interpreted to require federal courts to adhere to state case law, otherwise it takes powers away from the states which is unconstitutional.
        2. Justice Reed: The line between procedural and substantive law is hazy but no one doubts federal power over procedure.
      2. Substantive vs. Procedural Conflicts
        1. Substantive -- laws which govern recovery, wrongdoing, punishment, actions, etc.
        2. Procedural -- laws governing how cases move through the court system
          1. Example:
            1. State law -- legal paper
            2. Federal rule -- letter sized
          2. In a diversity case, Defendant seeks dismissal for failing to comply with state requirement, but federal rule is supreme
        3. Outcome-Determinative Test
          1. Whenever state law would dictate outcome, follow state law.


Guaranty Trust Co. v. York (1945): π sued ∆ in diversity action. ∆ invoked NY SOL, which had run. π argued the SOL did not bar the suit bc federal law traditionally considered the length of time elapsing b/t the claim and the suit, but had not strictly bound themselves by the SOL. The 2nd Circuit agreed. Held: Doesn't matter if state law characterized as substantive or procedural. When a court, according to Erie, is sitting in diversity, the federal court must consider the outcome of the legislation. If the outcome would be substantially different if federal law was applied, state law should be applied instead. Whenever state law would dictate outcome, follow state law.

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        1. Byrd Test
          1. Protects a number of small customs that do not rise to the level of law
          2. Whether the practice in question is bound up with the substantive rights and obligations created by state law, and if not, whether there is a countervailing interest inherent in the federal system
            1. Inherent = custom
          3. Byrd Test
            1. Is the state rule or procedure bound up with the substantive rights and obligation created by state law?
            2. Are there countervailing considerations inherent in the federal system?
              1. If both NO, then follow state R/P
              2. If yes to 1, follow state
              3. If 1 no, but 2 yes, follow federal
            3. Respecting the independence of the federal system and the compelling federal interests included in that system.
            4. The federal system's interest in maintaining the traditional allocation of functions between judge and jury necessitate that the court follow the federal, rather than the state, rule.


Byrd v. Blue Ridge Rural Electric Cooperative (1958): Erie held that federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts. Since the rule used by the SC State Ct. was not an integral part of the special relationship created by the statute, it is not bound up with the definition of the rights and obligations of the parties and is not a state-created obligation. outcome of the case is not the only factor to consider. The federal system's interest in maintaining the jury answers questions of fact prevails over state rules that would interfere with this relationship in federal court.

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        1. Preemption
          1. Whether the practice in question flows from a rule, and if not whether following the federal rule would lead to forum shopping or inequitable administration of the law.
          2. Is practice dictated by Rule? If yes?
            1. Is Rule constitutional?
            2. Is Rule within REA?
            3. If so—follow Rule.
          3. If practice not dictated by Rule:
            1. Would following federal practice lead to forum shopping or to “inequitable administration of the law”
              1. If yes, follow state practice
              2. If no, follow federal practice.


Hanna v. Plumer (1965): MA law provided that suits against an estate required personal service of process on the estate's executor. Process was instead served to the wife of ∆ under FRCP Rule 4(e)(2)(B), which allowed it to be left with a competent adult at the residence of any ∆. Held: Since the Rule is not likely to influence the choice of forum, and the difference between the state rule and federal rule is so slight, the federal rule should be applied. Reason: The Erie standard & the Byrd test are not strict standards, intended to discourage forum-shopping and the inequitable administration of the laws. Never been invoked to void a federal rule but rather to allow a state rule to apply when the scope of the federal rule was not as broad to cover the issue in dispute. When a federal rule fully covers an issue, then the court cannot refuse to apply the federal rule, unless error in determining it doesn’t violate REA or Const.
Semtek Intl., Inc. v. Lockheed Martin Corp. (2001): R moved the case to Fed US District Ct in CA on the basis of diversity, then dismissed petitioner's claims as barred by CA's 2-yr SOL. The ct dismissed the claims w prejudice. P brought suit against R in MD state cir. ct., alleging the same COA which were not time barred under MD's 3-yr SOL. The ct granted R's motion to dismiss on the basis that dismissal of the case on its merits in fed ct precluded the claim from being raised in state court. Held: Existing federal law does not resolve the issue and since state law is at issue, there is no need for a uniform federal rule. To hold otherwise would encourage forum shopping and inequitable administration of laws, since parties would seek to remove cases to federal court under diversity jurisdiction for their claim-preclusive effect on cases brought in state courts. 


  1. Litigation
    1. Reasons to Litigate
      1. Patterns of Litigation
        1. Nearly all litigation occurs in state courts
          1. over half are traffic or ordinance violations
          2. rest are “serious”
            1. juvenile/criminal under half
            2. domestic/civil over half
        2. tracks economic activity
        3. very few cases actually go trial
          1. but those that do, most go to a jury, rest to a judge
        4. torts over half of trials, almost all of those that go to trial go before a jury
        5. jury trials take longer than bench trials to judgment
        6. Torts: π win half the time; Contracts: π win 2/3rd the time
          1. torts get less recovery than contracts
          2. high incentive to bring meritorious case in contracts
          3. more punitive damages more often in contracts
          4. more 1M recoveries for contracts
      2. Remedies – What a court will require of the ∆ if the π wins. Judgment unlocks post-judgment remedies that can be used to get what π wants.
        1. Substitutionary – Those that seek to prove π with a reasonable substitute for whatever was lost.
        2. Specific – Those that seek to restore directly and specifically that which the ∆ has taken from the π.
      3. Damages (money/substitutionary)
        1. Matter at two stages:
          1. If π wins, how much is awarded
          2. In determining which court hears the case?


Troupe v. C & S Wholesale Grocers, Inc. (2009): Slip and Fall, π sought $13,637 damages for medical expenses, pain and suffering, punitive damages, costs of litigation, and other relief. ∆ filed a notice of removal. Held: Removal was appropriate. Reason: Removal from state court is proper if it is facially apparent from the complaint that the amount in controversy exceeds $75,000, when the complaint doesn't claim a specific amount of damages. Apparent from medical records that expenses and lost wages would amount to over 75k.

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        1. Special, economic, hard damages
          1. Precise figures
          2. Specific damages likely awarded
        2. General, noneconomic, soft damages
          1. No specific figure, but still compensable
          2. Difficult to value, use rules of thumb
          3. Rules of thumb are not law, so jury can't be instructed to use them
          4. "how much it would take compensate π for a day's suffering and multiply by duration of suffering"
      1. Specific Relief – helps recapture personal or real property
        1. Ejection -- remove from premises
        2. Replevin -- sheriff returns an item to the owner
        3. Injunction -- commands someone to do or not to do something
        4. Derived from courts of equity in Britain (Courts of Chancery)
        5. Not common law relief, offered when CL not adequate
        6. Reformation
        7. Mandamus
        8. Habeas Corpus


Lucy Webb Hayes Natl. Training School v. Geoghegan (1967): π refused to leave hospital, after hospital decided wife no longer needed their care. Held: Injunctive relief adequate. Reason: An action for damages would not be an adequate solution because the husband is able and willing to pay whatever the hospital would charge. The court may order an injunction when there are continuing trespasses or a series of trespasses when damages is not an adequate remedy.

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      1. Declaratory Relief – Statement from the court about legal rights. Can accompany other types of relief.
        1. FRCP 57: Declatory Judgment
          1. Procedure for obtaining a declaratory judgment under 28 USC § 2201
        2. Issues when seeking Declaratory Judgment
          1. Jurisdictional Questions
            1. The well-pleaded complaint rule (Mottley)
            2. Jurisdictional Amount
          2. Questions of burdens and proof
      2. Injunctive Relief
        1. Final Injunctive Relief (after trial)
        2. Preliminary Injunction (after hearing, but before trial)
        3. Temporary Restraining Order (TRO)
        4. Ex Parte TRO (no notice, adversary hearing, short duration, post-order hearing)
      3. Provisional Remedies and Due Process
        1. Fuentes v. Shevin (1972)
          1. Considers constitutionality of FL provision allowing for seizure without notice or hearing.
          2. Concluded: FL process did not meet constitutional standards because there was no prior hearing, no important public interest at stake, was not limited to the circumstances of exigency.
        2. What Fuentes doesn't mean
          1. Your car can be repossessed
          2. A hearing is not necessary in all circumstances -- other protections may suffice
            1. A surety bond
            2. A more detailed, less perfunctory, more narrowly-tailored process
          3. TRO's are still legal
          4. The black letter calculus
            1. (Nature of Private Interest + risk of erroneous deprivation with existing procedures - value of additional procedural safeguards) / (Government interest + burden of additional procedures)
            2. Shouldn't be too burdensome every time a collection is needed.
          5. Applications of Fuentes
            1. Unable to find convenient parking, law student parks at intersection nearest to law school. Police tow your car without a hearing. Denial of due process?
              1. No, public interests.
            2. Battered spouse seeks ex parte restraining order. Notice and hearing required?
              1. No.
              2. Review Rule 65(b)
    1. Financing Litigation
      1. The American Rule
        1. Each party pays their own fees
        2. Encourages "law reform" suits
        3. Discourages meritorious low-damage suits
        4. Hourly Rates
          1. Client pays lawyer at a specified hourly rate for legal services, plus various costs
          2. Most common financing mechanism (contracts and commercial litigation is financed this way)
          3. Median hourly rate: $110
          4. Can cause lawyers to work more than is necessary for a case in order to get more money.
        5. Blended Rate
          1. Charges 75% of usual hourly rate in return for client agreeing to pay a premium for successful outcome
        6. Flat Rate
          1. Set amount for a particular matter
          2. Uncontested divorces, wills, etc.
          3. Can be bad if an easy case turns out to be expensive and complicated
          4. Usually used only when lawyer determines it will be simple
          5. High volume clients -- annual flat rate or flat rate case-by-case
            1. Law of averages
          6. Requires a large flow of predictable suits
      2. The English Rule
        1. Losing party pays everyone's fees
        2. Encourages strong but low-damage cases
        3. Discourages high cost "law reform" suits
      3. Fee Spreading
        1. Contingent Fees
          1. Lawyer is only paid when the client wins
            1. Takes a portion of the recovery damages (20% settlement, 25% complaint, 33% trial, 50% appeals)
          2. Lawyers have to take into account the losses from unsuccessful suits by increasing fees from successful suits
            1. Cause successful clients to bear part of the costs attributable to the unsuccessful clients
            2. Like insurance, good drivers subsidize expenses of bad drivers
          3. Lawyers work as much as necessary to win the case, and not more.
            1. Incentives to turn away weak cases
          4. Kind like an insurance
            1. Lawyers agrees to lend client costs of the case in return for a share of the judgment
              1. Sliding scale
          5. Almost all PI and Tort work, even if clients could pay hourly rates
        2. Third Party Litigation Finance – investors will assume major responsibility for its funding
          1. Consumer Lending
            1. Lend directly to clients (almost always plaintiffs)
            2. Immediate cash in the form of a "loan" that is not repaid if they don't collect a judgment and total repayment never exceeds amount collected from judgment or settlement
            3. Varying interest rates -- over 15% and increase as life of loan increases
            4. Only lend a small percentage (10% or less) of what might actually be recovered
            5. Lawyers often unhappy with this because amount needing to be repaid might make clients resist reasonable settlement offers
            6. Some might take these loans because they are unable to get bank loans
            7. May think they get at least SOME recovery if they don't win
          2. Lawyer Lending
            1. Lawyers sometimes borrow to finance expenses incurred while waiting on clients to pay bills or for judgments and settlements to be paid
            2. Banks indirectly are lending against the expected proceeds of a lawyer's whole portfolio of cases
            3. Higher interest rates because the lawyer is not a good credit risk
            4. Some only lend to lawyers
          3. Direct Investment in Commercial Claims
            1. Financiers who invest directly in lawsuits
            2. Contract with parties or lawyers to advance money to finance a particular piece of litigation
            3. Assess merits of major commercial litigation (only) offered to them, then advance sums up to $15M
              1. In return, they get a share of the recovery
            4. Almost always, the firms and parties seeking this finance are able to finance the litigation themselves. Why do it?
              1. May not want to tie up that much of their working capital
              2. Getting a second opinion about the merits of the case
        3. Insurance – often will pay damages up to the policy limit and provide a defense lawyer
          1. Two insurance promises
          2. Insurer will pay damages
          3. And will provide for and pay for the defense against the claim
          4. Some exceptions depending on contract
      4. Public Subsidies and Professional Charity
        1. Almost a 1/4 of Americans had incomes that qualified them for legal assistance
        2. Legal aid provided by lawyers as a professional obligation or personal charity
        3. Legal Services Corp funded by gov't tax dollars
          1. 420M budget assisting 54M indigent clients
          2. $7.75 per client
          3. Many clients just get a pamphlet or a workshop on how to represent themselves
        4. Typically handle eviction, creditors' suits, and domestic violence (Don't take substantial damages cases)
        5. "Brokered" -- Some private law firms pledge monetary and time support to small orgs that function as a point of client contact and referral system
          1. Matches clients’ needs with available professional services
          2. Allows to deliver legal services many times greater than budget
          3. Lawyers and law firms get to engage in pro bono work
        6. Subsidized legal services formed around causes (ethnic, religious, political)
          1. Solicit funds and memberships with aim of using funds to finance litigation that furthers the groups goals
          2. E.g. Brown v. Board (1954) -- Legal Defense Fund of the NAACP
          3. E.g. Gratz v. Bollinger (2003) -- Center for Individual Rights
      5. Fee Shifting
        1. The Common Fund
          1. If a plaintiff brings a suit that benefits him and other similarly situated persons, they have an obligation to contribute to the plaintiff's attorneys' fees.
          2. Requires all who benefit from the recovery share the cost.
        2. By Contract
          1. Parties to contracts may provide that if litigation over the contract arises, the loser will pay the winner's legal fees
        3. By Common Law
          1. One side may pay the other's legal feed when a plaintiff has groundlessly brought suit (malicious prosecution)
          2. SCOTUS has not created a generalized common law doctrine for this, but said Congress is free to do so
          3. Inherent power of court to control behavior designed to thwart the just operation of the legal system
        4. By Statute
          1. States and federal statutes have been created to shift attorney fees in various circumstances
            1. Mine safety, truth in lending, consumer product safety, endangered species, civil rights
          2. In any action or proceeding to enforce various listed federal civil rights statutes, the court, in its discretion, may allow the prevailing party, other than the US, a reasonable attorneys fee as part of the costs.
          3. SCOTUS -- courts should ordinarily award such fees unless special circumstances render an award unjust
          4. Attorney fees can be awarded to prevailing plaintiffs, but not defendants
            1. Defendants only if plaintiff brought a frivolous, unreasonable, or groundless suit
      6. Rule 68: Offer of Judgment
        1. Incentivized offer process and put pressure on client
        2. Making an offer before trial
        3. Making an offer after trial has begun
        4. Not accepting an offer doesn't preclude a later offer
        5. Paying costs after an unaccepted offer
      7. 28 USC § 1914
        1. Clerk of district ct shall require a filing fee of $350 except for on a writ of habeas corpus which is $5
      8. 28 USC § 1915
        1. For a prisoner pro se, any court may authorize commencement, prosecution, or defense of any suit, action or proceeding, civil or criminal, or appeal therein without prepayment of fees
          1. Writ of Habeas Corpus are civil matters (Says "I've been wrongly imprisoned")
      9. 28 USC § 1920
        1. A judge or clerk may tax as costs:
          1. Fees of clerk or marshal
          2. Printed or electric transcripts
          3. Printing and witnesses
          4. Copies
          5. Docket fees
          6. Experts, interpreters, salaries, etc.
      10. 28 USC § 1961
        1. Interest is allowed on any money judgment in a civil case in a district court
        2. From the date of the entry of a judgment at a rate equal to the weekly average


  1. Pleading
    1. Pleadings
      1. P lodges complaint
      2. D either
        1. Pre-answer motion or Answer
          1. In either, must include all waivable defenses (PJ, V, Service, Process)
          2. Must specifically admit or deny each element of the P’s claim
          3. Assert all relevant defenses
          4. Counterclaim
      3. Allow opposing part to ask the court to court the dead-on-arrival cases from those with merit and to provide rough blueprints for the next steps in litigation
      4. Rule 7: Pleadings Allowed
    2. Notice Pleadings
      1. Is the complaint specific enough?
        1. Very low bar: the only thing that’s required is a short plain statement
        2. Notice pleading: the function of pleading is to put D on notice regarding 1) the events, in general, over which he is being sued, 2) and the nature of P’s claims against him
      2. Rule 8: General Rules of Pleadings
        1. A pleading that states a claim for relief must contain
          1. A short plain statement establishing jurisdiction,
          2. A short plain statement showing that the pleader is entitled to relief, and
          3. A demand for the relief sought
        2. Benefits plaintiffs it gives them benefit of the doubt in the pleading.
          1. Conley v. Gibson (1957) – Must accept the facts as true. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief
            1. Pushes back the moment of truth -- sufficiency -- to the summary judgment stage. That is, a post-discovery inquiry as to whether plaintiff has enough evidence to present at a trial to create a genuine issue of facts material to her claims.
        3. Burdens defendants because it requires them to invest time and resources to defend what might be a claim without merit.
          1. Gives the ∆ opportunity to respond to claims
        4. Rule 8(d) -- concise and direct
          1. (1) concise and direct
          2. (2) may set out 2 or more statements of a claim or defense alternatively or hypothetically, in a single count or separate ones, the pleading is sufficient if any one of them is sufficient
          3. (3) may state as many separate claims or defenses as it has, regardless of consistency
        5. Rule 8(e) -- pleadings must be construed as to do justice
        6. Bell Atlantic Corp v. Twombly (2007): Only non-conclusory allegations and conclusory allegations supported by subsidiary facts will be taken as true at the pleading stage.
          1. Trend of SCOTUS to be concerned that π are using civil justice system to get big payouts.
          2. In applying the general standard of Rule 8 to an antitrust action, we hold that stating such a claim requires a complaint with enough factual matter taken as true to suggest that an agreement was made.
          3. We require enough facts to state a claim of relief that is plausible on its face.
          4. A complaint cannot simply “le[ave] open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to support recovery.”
          5. Ends Conley.
          6. Three big questions:
            1. Does this apply to antitrust actions only?
            2. Does this apply to cases with complex, expensive discovery?
            3. Does this apply to civil rights cases?


Jones v. Bock (2007): Jones (and others) filed a suit against his prison for misconduct under 42 U.S.C. § 1983 in not reassigning him to different work that would not aggravate his injury. Prison Litigation Reform Act requires prisoners to exhaust prison grievance remedies before initiating a lawsuit. Issue: Whether it falls to the prisoner to plead and demonstrate exhaustion in the complaint, or to the defendant to raise lack of exhaustion of administrative remedies as an affirmative defense? Held: Rule 8(a) requires simply a short and plain statement of the claim in the complaint, and Rule 8(c) provides a non-exhaustive list of affirmative defenses. The PLRA itself is not a source of a prisoner's claims and it does not require prisoners to show exhaustion in their complaints. The Court held that courts should avoid departing from the usual practice under the Federal Rules on the basis of perceived policy concerns because such changes should be made by an established rulemaking body, not by the courts on a case-by-case basis. The civil rights statute does not require exhaustion, nor does the federal rule of civil procedure but the affirmative defenses list is not exhaustive so the defendant should have the burden of claiming.

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      1. Rule 9: Pleading Special Matters
        1. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
          1. Must allege time or place
            1. "On or about" gives some leeway if it wasn't actually that specific time or place
          2. Must specifically state an item of special damage, if claimed
        2. Fraud: Intentional misrepresentation of a material fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage
          1. Fraud = intentional misrepresentation + knowledge + inducement + reliance + injury
          2. Can occur by omission or purposeful failure to state material facts, which makes other statements misleading
          3. Easiest to plead with particularity: injury
          4. Hardest to plead intentional misrepresentation and knowledge
            1. Hard to get in someone's mind and determine their intent
          5. Mistake: A lie you did not know was false
        3. Policy Choice of Rule 9(b) -- must allege fraud with particularity
          1. Pleading with particularity makes it harder to bring a claim for fraud because the choice is to prevent a whole bunch of litigation for every wrong statement
          2. Have to show its specifically fraud to prevent people being sued for being wrong
        4. Qualified immunity: a person has a claim against a government official who violates his or her constitutional rights; the official has a defense of acting in good faith, which may protect them from the process of discovery (Common Law special pleading, not statutory)


Iqbal v. Ashcroft (2009): Twombly should be applied to all cases, not just anti-trust cases. Established a two-pronged approach to determine sufficiency of a complaint. (1) A court should not accept as true legal conclusions. Legal conclusions must be supported by factual allegations. (2) Only a complaint that states a plausible claim for relief survives a motion to dismiss. Well-pleaded facts must show that the pleader is entitled to relief by allowing the court to infer more than a mere possibility of misconduct.

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      1. Is the complaint sufficient? I.e., does it establish that the pleader is entitled to relief?
        1. Assuming that P is right about the allegations, is this the kind of thing upon which a P could recover? [Rule 12(b)(6): motion to dismiss for failure to state a claim]
          1. In ruling on a Rule 12(b)(6) motion, when there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
        2. The burden of pleading typically tracks the burden of persuasion
          1. Complaints require something more than stating the particular elements of a claim
          2. There needs to some ‘factual flesh on the bones’ for a judge to reasonably infer that the claim can be recovered upon
        3. Only non-conclusory allegations and conclusory allegations supported by subsidiary facts (i.e., a plausible claim) will be taken as true at the pleading stage.
          1. Conclusory allegations (allegations of law) cannot be taken as true.
          2. The ultimate claim has to be “plausible in light of non-conclusory allegations.”
      2. Avoiding the Iqbal Conclusory Allegations Flaw
        1. A pitfall for many law students -- how to write a claim that is non-conclusory
        2. Conclusory
          1. Taking the elements of a statute and saying they happened
        3. Conclusions need to be backed up by facts
          1. Not contained in statute -- a basis for the elements necessary to recover
          2. Facts lead to a conclusion.
        4. Iqbal said that the obvious alternative was more plausible than Iqbal's claim. Not plausible to belief the official had a discriminatory intent.
          1. Left up to judges the discretion to determine plausibility based on knowledge and experience.


Stradford v. Zurich Ins. Co. (2002): Purchased ins., failed to pay & was cancelled. Letter certifying no losses during cancelled time, reinstated & filed a claim for damages. Received payment & then a larger claim. Stradford sued for money, Ins Co counterclaimed for fraud. Stradford moved for dismiss on 9(b). Held: Ins Co counterclaim not specific enough for 9(b). The court granted leave to amend their claims and granted motion to move for summary judgment. Rule 9(b) says that in alleging fraud or mistake, the party making the allegations must state with particularity the circumstances constituting fraud or mistake. This requires the time, place, and the nature of the allegations to be disclosed to the party accused of fraud. This is in order to allow the accused party to fair notice of the claim and factual ground upon which it is based. The counterclaims here made a general accusation that Stradford acted fraudulently but did not state specifically in what way he was fraudulent. The counterclaims must be dismissed.

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      1. Rule 11 imposes penalties on lawyers who bring frivolous claims
        1. Rule 11 gives special responsibilities to civil litigators -- applicable ONLY to that role (and only to part of it)
        2. Signature is important and means something -- agree you meet standard of Rule 11
    1. The Complaint
      1. Lets the π explain his grievance and asks the court for some remedy.
      2. Tells a story -- an attention-getting one is better than a dull one
      3. Each fact must match each element in a statute or other law
        1. Otherwise, defendant can bring a 12(b)(6) motion
      4. How to Write a Complaint
        1. Craft the caption
        2. Give it a title
        3. Demand jury trial (if desired)
        4. Write introductory yada yada
        5. Write the jurisdictional statement
        6. Write closing yada yada (starts with the word "wherefore" and put demand)
        7. Signature Line
        8. Fill in the middle
          1. Law + Facts = Allegations
          2. Facts first, then legal assertions
      5. Look at local rules (online forms?)
    2. Answers and Motions
      1. Pre Answer Motions
        1. Can assert motions to defend against the claims (Rule 12(b))
          1. Rule 12(b)(6) -- "demurrer" failure to state a claim
            1. The story doesn't matter because it has no legal remedy
            2. Required ∆ to accept the claims as true
            3. Says even if they are, there is no legal remedy for them



12(b) Defenses Waivable If not, can be brought…
(1) lack of SMJ No Anytime (12(h)(3)). A Rule 12(b)(1) motion is not waived by failure to raise it with other Rule 12(b) defenses, and it can be raised even after trial, or the Court can raise it sua sponte.
(2) lack of PJ Yes
(3) improper venue Yes A forum selection clause is enforced by a Motion to Transfer under 28 U.S.C. §1404(a) or a Motion to Dismiss for Forum Non Conveniens if the contract specifies only a state court forum, but not by a Rule 12(b)(3) motion because the existence of a forum selection clause does not impact whether venue is proper under §1391 (Atlantic Marine).
(4) insufficient process Yes
(5) insufficient service of process Yes
(6) failure to state a claim upon which relief can be granted No 12(h)(2): in any pleading under 7(a); 12(c) judgment on the pleadings motion; at trial
(7) failure to join a party under Rule 19 No 12(h)(2): in any pleading under 7(a); 12(c) judgment on the pleadings motion; at trial
          1. If ∆ does not assert 2-5 in a pre-answer motion (12(g)), or if he doesn’t make a motion and doesn’t include them in his answer (12(h)(1)(B)), waives these defenses.
          2. Rule 12(a)(1) gives ∆ 21 days to answer complaint (60 if waived service)
            1. Period starts to run when ∆ is served and includes finding a lawyer and investigation
            2. Pre-answer motion stops the clock.
              1. Subject to Rule 11 because it is in writing so must be cautious of frivolous pre-answer motions
          3. Rule 12(e) - Motion for a more definite statement
            1. Very rarely successfully invoked
            2. Asks the π to make more definite and certain his contentions
            3. Rule 12(b)(6) or discovery can help vague or uncertain claims
          4. Rule 12(f) - Motion to Strike
            1. Asks court to strike a portion of a claim that fails under substantive law
              1. Acts like 12(b)(6) but only for a portion of the claim
              2. Gets a lot of use and plays important rule on stripping legally untenable claims
            2. Also, forces removal of irrelevant and prejudicial allegations in a pleading
              1. Allegations have no relation to the case or are unnecessary and confusing
              2. Over long and detailed
              3. Unnecessarily derogatory
              4. Not favored motions and shouldn't be granted to background info
            3. May depend on whether allegations are likely to prejudice the moving party
          5. Rule 12(c) - Motion for Judgment on the Pleadings
            1. Comes after an answer to the complaint
            2. Court matches up allegations of complaint with those of an answer and decide whether judgment for the plaintiff should be entered on the basis of the pleadings
            3. Resolve a case where the parties agree on the facts and only applicable law is in question


Haddle v. Garrison (1998): Haddle alleged that Garrison conspired with his employer to have him terminated from his job in order to intimidate him from testifying in a federal criminal trial and to retaliate against him for attending the grand jury proceedings. Argues that he was injured in his person or property by the actions of Garrison in violation of 42 U.S.C. §1985(2) (Civil Rights Acts of 1871). ∆ filed a 12(b)(6) motion for failure to state a claim for which relief can be granted. The district court ruled that because he conceded he was an at-will employee (as opposed to an employee with an end date), his termination did not constitute actual injury (Morast). The Eleventh Circuit affirmed. Held: Nothing in §1985(2) establishes a requirement that the petitioner must suffer an injury to a "constitutionally protected property interest" in order to state a claim under the statute. The statute sets forth that it’s not a deprivation of property that is at issue, but it is the intimidation or retaliation against witnesses in federal-court proceedings.


      1. Defendant's first pleading is the ANSWER
        1. Must admit or deny each claim made in complaint.
          1. Allegation considered admitted if answer required, and not denied (8(b)(6))
          2. Denials must be specific to each allegation.


Zielinski v. Philadelphia Piers (1956): A paragraph of the complaint made a number of allegations. Defendant denied all the allegations of the paragraph, even though some were true. Held: The ∆'s general denial of the allegations that the forklift was owned by ∆ and operated by their employee was ineffective. Reason: Rule 8(b) says a party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. The general denial was too confusing to determine what they were denying.

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        1. Answers and Replies
          1. If cannot assert a pre-answer motion, must respond to substantive allegations in the complaint (admit or deny each).
          2. Must state counterclaims, if they're available
          3. Denials
            1. Rule 8(b) requires ∆ to deny only allegations disputed
            2. 8(b)(6) provides any allegation that is not denied is deemed admitted
            3. General denial -- denies each and every allegation of the complaint; or each and every allegation of a paragraph or group of paragraphs (avoid)
          4. Affirmative Defenses (Rule 8(c)(1))
            1. Must be affirmatively stated to assert as a defense.
          5. Counterclaims and Crossclaims (Rule 13)
            1. Compulsory: pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
              1. arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
              2. does not require adding another party over whom the court cannot acquire jurisdiction.
            2. Permissive: A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
            3. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
            4. Crossclaims: A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
          6. Replies
            1. Most pleadings end with the answer, except:
              1. When an answer contains a counterclaim, π must respond (Rule 7(a)(3))
              2. When a judge orders a reply to an answer (Rule 7(a)(7))
                1. Maybe when answer contains denials and affirmative defenses and judge needs clarification
            2. Replies are very rare. (A response to the answer.)
    1. Amendments
      1. Discovery may cause claims and defenses to change as facts unknown at the time of pleading emerge. Rule 15 allows revisions and limits the extent and timing of such changes in the plot lines.
      2. Tension between easy amendment and prejudice
        1. Allow facts to change as information is uncovered
        2. Prevent difficulties in how to investigate and present case if story continually shifts
      3. An amendment to an answer, if to deny a previously affirmed claim, is a claim in itself and can be tried separately under Rule 42.
        1. Rule 42: Court can separate claims into separate trials.
      4. 15(1)(a-b): Can amend a pleading once as a matter of course within 21 days after serving it, or 21 days after service of a responsive pleading, or 21 days after service of motion under Rule 12(b), (e), or (f), whichever is earlier.
        1. Foman - Amendment should be freely given UNLESS, there is evidence of undue delay, bad faith or dilatory motive on the part of the movant… [or] undue prejudice to the opposing party by allowing the amendment.
        2. Hanson - prejudice must be shown, and the opposing party to the amendment has the burden of showing it.
      5. Rule 15(c) Relation Back
        1. Allows plaintiffs leeway to name new parties or new claims after SOL
        2. Allows amended pleading to be treated as though it was filed on the date of the original pleading.
        3. Must convince the court that the amendment satisfies both the "when justice so requires" language in Rule 15(a) and that it satisfies the requirements of Rule 15(c)
        4. Rule 15 extends statute of limitations but, allows relation back only for claims sufficiently related to those described in the original pleading that the defendant should be on notice of the dispute
        5. Limited to amendments related to the conduct, transaction, or occurrence set out in the original pleading
        6. Specifically rejects that amendments should turn on legal theories (any tort claim for a tort claim isn’t good enough)


Beeck v. Aquaslide ‘n’ Dive Corp. (1977): P alleges that slide was made by Aquaslide; Aquaslide admitted as much. On the eve of trial, Aquaslide seeks to amend its answer to deny that it was the manufacturer. If they can amend it to a denial, then the manufacturer becomes an issue at trial. They got a new trial under Rule 42. Held: Amendment ok. Reason: No bad faith - ∆ relied on 3 insurance cos. conclusions on who made slide; no objections. Prejudicial to ∆ to deny amendment – opportunity to contest disputed facts; defectiveness of a slide that’s not theirs. (Crushing prejudice on π to now prove AS made slide after case based on assumption they did make it?) Rule 42 separation good because prejudicial on ∆ for π injuries in manufacturer case; save time and expense. SOL would be tolled if actual manufacturer found.
Moore v. Baker (1993): π filed claim of informed consent on last day permitted by SOL, then sought to amend for negligence. Denied by DC. Held: No amendment. Reason: The claim that she was not given proper informed consent focuses on ∆'s actions before π decided to undergo surgery, while the amended complaint adding negligence focuses on ∆'s conduct before and after surgery. The acts of negligence occurred at different times and involve separate and distinct conduct. Also, π would have to prove completely different facts than otherwise required to recover on the informed consent claim. Thus, the original complaint did not give notice to the ∆ of the claim now being asserted.
Bonerb v. Richard J. Caron Foundation (1994): New counsel sought to amend after own investigation to add a COA for counseling malpractice. Held: Amendment good. Reason: A claim relates back to the initial pleading when the claim asserted in the amended pleading arose out of the same nucleus of operative facts set forth in the original pleading. Although the professional malpractice claim invokes different duty and conduct than improper maintenance claim, the complaint advised ∆ of the same occurrence giving rise to these different theories of negligence.

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    1. Rule 11 Sanctions
      1. Can't lie in a pleading to get past pleading stage
      2. Rule 11 gives special responsibilities to civil litigators -- applicable ONLY to that role (and only to part of it)
      3. Can motion for sanctions or court can impose sanctions on its own
        1. Can be monetary or any punishment court deems appropriate
      4. Applies only to written motions, pleadings, and other papers – not oral arguments or misconduct during discovery.
      5. 21-day safe harbor period to rectify issues (apology, amendment, dismiss)


Bridges v. Diesel Service, Inc. (1994): Attorney failed to exhaust admin. remedies before filing a suit. Attempted to fix issue. Held: No sanctions. Reason: Rule 11 sanctions are appropriate where the complaint filed is objectively unreasonable under the circumstances, or where the claim asserted is patently unmeritorious or frivolous. Attorney admitted his mistake and immediately filed an EEOC complaint. Sanctions are more appropriate when the mistake is substantive rather than procedural. 
Christian v. Mattel, Inc. (2003): π’s attorney acted like an asshole during deposition. Held: Sanctions not appropriate. Reason: Since the court can't determine whether the district court's conclusion was the result of an impermissible intertwining about the complaint's frivolity and Hicks' extrinsic misconduct, the district court's Rule 11 orders must be vacated. To impose sanctions under the district court's inherent authority, it must make an explicit finding that counsel's conduct constituted or was tantamount to bad faith, which it did not.
Walker v. Norwest Corp. (1996): π’s attorney did not state each ∆’s citizenship to claim diversity. ∆ asked to dismiss or risk sanctions. π did not dismiss. Ct granted Rule 12(b)(1) and sanctioned attorney. Held: Sanctions good. Reason: Attorney had the burden to plead citizenship of the parties in attempting to invoke diversity. Argued that finding out ∆s' citizenship would be more trouble than they should be expected to take. Failed to argue to the district court that he was in dire financial straits and was unable to pay the sanction, but argued instead the district court should have looked into it themselves. At the hearing on the amount of attorney's fees, still did not argue the citizenship of many of the defendants and did not identify which defendants should be dismissed.


  1. Discovery
    1. Structure & Scope of Discovery
      1. General Characteristics:
        1. Initiated by parties; judge intervenes only in case of dispute, w/ broad discretion
        2. Generally confined to information that is
          1. Relevant to a claim or defense
          2. Not "privileged"
          3. "Proportional" to case
      2. Stages of discovery:
        1. (1)" Mandatory disclosure" -- matters that parties may use to support their own claim or defense (Rule 26(a))
        2. (2) Each party requests further information from the other as to other matters relevant to claims and defenses
          1. More detail about disclosures that have already occurred
          2. Information about aspects that one party doesn't want to use -- but the other does
      3. Scope of Discovery (Rule 26(b)(1))
        1. Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering:
          1. the importance of the issues at stake in the action,
          2. the amount in controversy,
          3. the parties' relative access to relevant information,
          4. the parties' resources,
          5. the importance of the discovery in resolving the issues, and
          6. whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
        2. Rule 26(b)(2)(C) (protects the parties)
          1. Limit frequency or extent of discovery unless:
            1. Unreasonably duplicative or cumulative, or can be obtained by some other source that is more convenient, less burdensome, less expensive
            2. Party seeking discovery has had ample opportunity to obtain the info by discovery in the action
    2. Disclosures
      1. Rule 26(a) requires a party to produce certain information initially, at the outset of the case
        1. Key witnesses and documents that a party may use to support its case
        2. Expert witnesses must provide elaborate written report on what they will testify (if testifying)
        3. Information about damage calculations and insurance agreements
    3. Documents & Inspections
      1. Rule 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
        1. Permits a party to seek production of documents and inspection/testing of land and tangible items
        2. Inexpensive to prepare, but responding may be expensive
      2. Rule 45: Subpoena
        1. Allows a party to command witnesses and others to testify, attend a deposition or produce documents
    4. Depositions
      1. Rule 30: Depositions by Oral Examination
        1. Expensive, productive
        2. Used to pin down witnesses, understand what adversary's story is likely to be
        3. Can tell your client to not answer a question by asserting privilege
        4. If an issue of whether to answer a question can't be resolved -- judge
      2. Rule 35
        1. Permits a party to seek the physical or mental examination of a party or person under the legal control of a party
        2. If physical or mental condition is in controversy, can direct a party to undergo an examination
          1. Need "good cause" and to show that the party's condition is "in controversy"
    5. Interrogatories (Rule 33):
      1. Questions for the other party which must be answered and are discoverable.
      2. No more than 25 discrete written interrogatories, including discrete subparts.
      3. May relate to any matter that may be inquired into under 26(b).
    6. Protective Orders (Rule 26(c))
      1. May make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including:
      2. That the disclosure or discovery not be had
      3. Or only had in certain specifications of time, place, and form


Rengifo v. Erevos Enterprises, Inc. (2007): A protective order barring discovery related to his immigration status, social security number, and authorization to work in the US. Defendant argues it is relevant to the issue of whether he is entitled to overtime wages. Held: Not relevant. Reason: It creates a danger of intimidation that would inhibit plaintiffs in pursuing their rights. Defendants do not need this information because they already have all the time and wage information.

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    1. Experts
      1. Federal Rule of Evidence 702 -- A witness qualified as an expert by knowledge, skill, experience, training or education
      2. Two ways to enter litigation
        1. Participate in events that give rise to litigation ("fact witnesses")
        2. Plaintiffs hire them to testify on the inferences one can draw about the causes or effects of an event by applying their special knowledge to info available
          1. An expert hired in anticipation of litigation isn't testifying because
            1. Conclusion doesn't match theory of the case
            2. Good science, bad witness
            3. Good conclusion but flunked Daubert
            4. Other (fee dispute, unavailability, better witness, etc.)
        3. “Third Role” – Advisor to Attorney
          1. Do not expect to testify, but can.
          2. Rule 26(b) protects this information retained in anticipation of litigation, if not testifying
            1. Exceptions (26(b)(4)(D)): If no other practical way for other party to obtain the information; pursuant to Rule 35(b): Examiner’s Report (requesting a mental or physical examination).


Chiquita International Ltd. v. M/V Bolero Reefer (1994): Reefer seeks the deposition and production of the file a marine surveyor, who examined the vessel and loading gear at Chiquita's request shortly after the vessel arrived in Germany, assembled in connection with his inspection. Chiquita argues Winer is a non-testifying expert witness immune from discovery. Reefer argues he's a fact witness and the only surveyor with information about the inspection of the ship. Held: Clearly an expert bc brought technical knowledge. Making a personal examination of the vessel and learning facts rather than just offering an opinion does not make him less of a non-testifying expert witness. He was hired to make an evaluation, he did not learn of this info in the normal course of business. Was their ship, many opportunities to examine it themselves.
Thompson v. The Haskell Co. (1994): π seeks to shield from discovery documents related to her in the possession of a psychologist, retained by her prior counsel to perform a diagnostic review and personality profile, and prepared a report for her prior counsel. Held: Must produce under Rule 26(b)(4)(D). Reason: The documents are highly probative with regard to the incident, so it is essential to the plaintiff's case. Also, no other report in a similar time frame was prepared, and defendant could not obtain the same information by any other means. Ordinarily do not need to provide expert witness info that is used as trial prep., but fits into the exceptions.

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      1. Daubert Test (1993) -- The body of knowledge on which the expert proposes to testify is reliable and relevant
      2. Party offering the testimony must:
        1. Establish witness is an expert
        2. Expertise is relevant
        3. Judge must certify expert as reliable
          1. Drawing on a testable body of knowledge
          2. Qualified to testify
    1. Relevance
      1. Relevance links admissibility to the substantive law and to common-sense patterns of inference
      2. Information must tend to prove or disprove something the governing substantive law says matters
        1. E.g. A contract dispute: ∆ contends he failed to pay for goods because the goods were defective. Condition of the goods is relevant.
        2. E.g. A contract dispute: ∆ contends he failed to pay for goods because he used the money to support a sick relative. State of relative's health is irrelevant because the motives for breaching a contract don't matter under substantive contract law.
      3. Information within the scope of discovery need not be admissible in evidence to be discoverable
      4. Relevance is relative to the given claim or defense at issue.


Favale v. Roman Catholic Diocese of Bridgeport (2005): Workplace sexual harassment claim. Sought testimony on anger management treatment, psychological/psychiatric conditions, and records of such treatment. Held: Do not need to produce. Reasons: Sister Stobierski's testimony pertaining the treatment she allegedly received for her anger management, psychological, or psychiatric conditions is not relevant because it does not pertain to the defense or claim of any party. Notice of mental conditions does not equate to notice of her propensity to commit acts of sexual harassment.

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    1. Limits to Discovery
      1. Proportionality and Privacy
        1. A party being asked to disclose info can seek protection from the court if he believes that the burdens of producing the info outweighs the benefits.
        2. A court can limit discovery if:
          1. (1) it is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive
          2. (2) the party seeking discovery has had ample opportunity to obtain the info by discovery
          3. (3) it is outside the scope permitted by Rule 26(b)(1)
            1. Limits discovery that is not proportional to the needs to the needs of the case considering:
              1. the importance of the issues at stake,
              2. the amount in controversy,
              3. the parties' relative access to info,
              4. the parties' resources,
              5. the important of the discovery in resolving issues, and
              6. whether the burden or expense of the proposed discovery outweighs its likely benefit


Price v. Leflore County Detention Center Public Trust (2014): Discovery request that Defendant identify any written complaints concerning failure to provide medical treatment to inmates at the detention center for the 10 years prior to the filing of the action. Held: Must comply, but reduced time period. Reason: There are no alternative or less burdensome means of obtaining this information. The burden is primarily the result of the Defendant Trust's own disorganized system of filing and retaining written complaints. The time frame of the request should be reduced from 10 yrs to 7 yrs because that is the time when Defendant began employment.

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      1. Privilege
        1. Privileges typically protect information from certain sources (Defendant's communications with attorney, doctor, clergy, and spouse.)
          1. Important to protect free communication with these sorts of people.
        2. They do not block underlying facts. Prosecutor can produce evidence from unprivileged sources.
        3. Only have an effect if a party asserts them. Can later be waived.
          1. Waiver can also result from taking some action inconsistent with claiming the privilege -- such as disclosing material to a third party.
          2. Can waive by taking certain stances in litigation -- like claiming injuries from a car accident waives patient-doctor privilege.
        4. Rule 26(b)(3) Trial Preparation Material
          1. A party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative
          2. May be discovered if:
            1. Otherwise discoverable under 26(b)(1), and
            2. The party shows that it has substantial need for the materials to prepare its case and cannot, without due hardship, obtain their substantial equivalent by other means
          3. If court orders discovery, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney


Hickman v. Taylor (1947): Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.

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    1. Discovery Disputes
      1. Types of Discovery Disputes
        1. Proper scope of discovery
        2. Spoliation -- failure to preserve evidence
          1. Some cases nefarious conduct, others a mistake.


Zubulake v. UBS Warburg LLP. (2003): After attorney filed a charge with the EEOC, employees were instructed not to delete or destroy materials relevant to her case, and to segregate them for the lawyer's eventual review. A number of cases regarding providing documents that were hidden/destroyed. Held: Sanctions appropriate. Willful deletion. Reason: A trial judge can, at his discretion, sanction a party for the destruction and significant alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.

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          1. The failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation can support an inference that the evidence would have been unfavorable to the party responsible for the destruction.
          2. To get an adverse inference instruction, the requesting party must establish three elements:
            1. (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
            2. (2) that the records were destroyed with a "culpable state of mind" and
            3. (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
      1. Ensuring Compliance
        1. Rule 26(g) requires discovery requests be signed
          1. Signature implies requests are reasonable and responses are complete
          2. Suggests attorney's fees as an appropriate sanction
        2. Rule 37 establishes a system of sanctions for parties violating more specific obligations.
          1. May impose punishments ranging from expenses or dismissals.
          2. Misbehavior sanctions
          3. Some can't be sought until after court orders compliance and party refuses
          4. Rule 37(b) gives courts wide latitude to determine appropriate sanctions for discovery violations, including dismissal of claims, limiting evidence, and awards of attorney’s fees.


Security National Bank of Sioux City v. Abbot Laboratories (2014): Counsel's deposition transcript was littered with hundreds of unnecessary objections and interruptions, most of which completely lacked merit and often ended up influencing how the witnesses responded to questions. Held: Interesting video sanction. Reason: The court was concerned about the trend towards excessive uses of boilerplate language containing every objection imaginable which amounts to obstructionist tactics. Some lawyers are taught to do this, others do it to intimidate or bully their opponents. Judges incentivize this by not imposing harsher sanctions on lawyers who do it. This punishment intended to be deterrence, not a fee to be an asshole.


  1. Resolution without Litigation
    1. Two procedural devices force the parties to engage and respond to each other: 
      1. the default judgment, designed to goad the defendant into action; and 
        1. Rule 55 -- When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.
      2. the involuntary dismissal, intended to keep the plaintiff from going to sleep at the litigative switch.
        1. Failure to Prosecute (Rule 41)
          1. Voluntary Dismissal – plaintiff can choose to dismiss claim(s) (without prejudice).
          2. Involuntary Dismissal -- If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Operates as an adjudication on the merits (with prejudice).
    2. Settlement – Parties can decide to come to an agreement outside of court for financial, time, other reasons
    3. Mediation – Sometimes required by contract. Attempts to have a third-party help facilitate an agreement, but does not require settlement.
    4. Arbitration
      1. Binding end to a dispute
      2. Allows evidence, but quicker and more streamlined
      3. Affirmative defense: Arbitration has already occurred (Rule 8)
    5. The Federal Rules offer additional opportunities for cases to resolve short of trial in an apparent effort to avoid some of these costs.
      1. Demurrer (12(b)(6))
        1. Occurs early in trial
        2. Would the facts, if true, state a claim?
          1. Does not test truth or whether there is evidence behind them
          2. If they do not state a claim, motion to dismiss for failure to state a claim.
        3. Brought by a party against whom a claim is asserted
      2. Motion for Judgment on the Pleadings (Rule 12(c))
        1. [Only] after the pleadings are closed—but early enough not to delay trial—[any] party may move for judgment on the pleadings.
        2. Can help dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. A motion for judgment on the pleadings can highlight for the court its ability to resolve the case, merely by examining the initial papers.
        3. No SJ because no factual dispute. If a factual contention, then judgment on the pleadings is inappropriate
          1. A decision on the legal sufficiency of the claims in the pleadings, not on whether the facts are true or not.
    6. Burdens of Moving & Nonmoving Parties
      1. Adickes:
        1. In a motion for summary judgment, the moving party has the burden of showing the absence of a genuine issue as to any material fact.
        2. Burden of production on defendant


Celotex Corp. v. Catrett (1986): Death of husband due to asbestos exposure. Petitioners moved for SJ. Respondent responded by producing three documents which she claimed “demonstrate that there is a genuine material factual dispute” as to whether the decedent had ever been exposed to petitioner’s asbestos products. Petitioner argued documents inadmissible hearsay. Held: Moving party just needs to point out to the court that there is an absence of evidence to support the nonmoving party's case. Need not show affirmative evidence that there is an absence of evidence to support nonmoving party’s case.

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      1. Celotex:
        1. Focuses on what the party moving for summary judgment must do, in the absence of any opposition, to justify a court’s granting its motion.
        2. Nonmovant waiting until just before trial to assemble the evidence will be too late. If the basic evidence to prove your claim or defense is not available at the SJ stage, you lose.
          1. Moving party can just say pleadings not enough.
        3. Burden of production on plaintiff.
      2. Three Burdens:
        1. On the Motion
          1. Burden on the movant to move/prove motion
        2. Production
          1. Burden to present evidence
          2. Burden follows the burdens as allocated at trial, typically persuasion
        3. Persuasion
          1. Quality, amount, nature of evidence and how persuasive it must be
            1. Beyond a Reasonable Doubt
              1. A LOT of evidence
              2. Erase doubt from mind
            2. Clear and Convincing
              1. Clear, unambiguous, convincing
              2. Typically, in civil fraud cases
            3. Preponderance of the Evidence
              1. At least 51% of the evidence in support (more evidence than the other side)
            4. Burden not always on the plaintiff, can move between parties
    1. Assessing Evidence
      1. Anderson: Summary judgment will not lie if:
        1. the dispute about a material fact is genuine (the evidence is such that a reasonable jury could return a verdict for the nonmoving party), and
        2. in making this assessment, the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor.


Tolan v. Cotton (2014): The fifth circuit affirmed SJ (force wasn’t unreasonable, not against 4th Amdt) holding that an officer has the right to use deadly force if the officer harbored and objective and reasonable belief that a suspect presented an immediate threat to his safety. Held: The fifth circuit failed to view the evidence at summary judgment in the light most favorable to Tolan with respect to the central facts of the case. Each party provided contradictory evidence to the other party's evidence, but the court below improperly credited the evidence of the party seeking summary judgment and failed to acknowledge key evidence offered by the party opposing the motion. In each case, Tolan presented evidence that could be interpreted to support his claim. At the summary judgment stage, reasonable inferences should be drawn in favor of the non-moving party.

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      1. Matsuhita: District courts have discretion to assess the plausibility of the parties' contents and grant SJ if the nonmoving party could show only some metaphysical doubt as to the material facts.


Bias v. Advantage International, Inc. (1990): Defendant moved for summary judgment. The district court granted it holding that the plaintiffs did not suffer any damage because even if the defendants tried to obtain a jumbo life insurance policy, they would not have been able to do so. Held: Plaintiff failed to do more than show there is some metaphysical doubt as to the material facts so the district court's conclusion is appropriate. They relied merely on bare arguments and allegations or on evidence that doesn't actually create a genuine issue for trial.

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    1. Specific Claims vs. General Claims
      1. Specific claims always trump general claims.
      2. Must defend against specific claims with specific evidence.


  1. The Trier and the Trial
    1. Two Models of Litigation
      1. Unmanaged
        1. Judge is hands off, only helps with things go wrong
      2. Managed
        1. Judge is involved, prods people, encourages settlement
        2. Judge wants to know witnesses, length, etc. no surprises
    2. Judges
      1. Choosing Jurors
        1. Selection Processes: appointment or election
        2. Appointing authorities, whatever their politics, have strong desire not to appoint judges who will embarrass them. Thorough vetting likely.
        3. Electorate generally less informed about judges than any other elective office
          1. The fear is that elected judges will decide cases based on popular opinion, or will be swayed by campaign contributions
      2. Recusal
        1. Peremptory
          1. 1/3 of states permit peremptory
          2. Simply file a timely affidavit alleging in conclusory terms that the judge is prejudiced against the party. Actual prejudice need not be down, but each side only gets one challenge.
        2. For Cause
          1. Two broad categories under 28 USC §455:
            1. Where he has served as a lawyer in the matter in controversy, or where he has served in governmental employment and expressed an opinion concerning the merits of the particular case or controversy (§455(b)), or
            2. Any justice, judge, or magistrate of the US shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned (§455(a)).


Caperton v. A.T. Massey Coal Co. (2009): A judge is biased and should recuse himself when a contributor’s influence on his election is so substantial that it would offer a possible temptation to the average judge to lead him not to be impartial.

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    1. Jury
      1. The presence of a jury will often matter. They will be present only if two conditions are met:
        1. At least one party asks for a jury, and
        2. It is a case of the sort in which the parties are entitled to a jury
      2. Seventh Amendment -- right to trial by jury of peers for civil cases
        1. Seventh amendment has not been held to apply to the states by SCOTUS.
        2. States can reach their own conclusions about whether jury trial is allowed
          1. States have been substantially less enthusiastic about jury trials in civil cases than have the federal courts for two reasons:
          2. The history of the 7th amendment might cause the federal courts to err on the side of the jury when in doubt.
            1. Disagreement over right to trial by jury was central to the creation and adoption of the Bill of Rights. There was no equivalent controversy in most state constitutional debates.
          3. Federal courts are generally better financed so they can more easily absorb the costs of additional jury trials.
      3. Test for claims that did not exist in 1791
        1. First locate the closest historical analogy
        2. If no close historical analogy, look at the remedy sought in the case
        3. However, for the vast majority of claims the question of the right to trial by jury will be well established either in federal courts which apply the 7th amendment, or in state courts which apply their own constitutions and statutes.
      4. Rule 38: Right to a Jury Trial; Demand
        1. Rule 38 reaffirms the constitutional status of jury trial, while insisting on a timely demand and establishing waiver as the penalty for failing to do so.
        2. Rule 38(a): The right of trial by jury as declared by the seventh amendment to the constitution, or as provided by statute, is preserved to the parties inviolate.
        3. Rule 38(b): On any issue triable of right by a jury, a party may demand a jury trial by:
          1. (1) serving the other parties with a written demand -- which may be included in a pleading -- no later than 14 days after the last pleading directed to the issue is served; and
          2. (2) filing the demand in accordance with Rule 5(d)
            1. Best way to ask is to put it in the pleading
        4. Rule 38 (c): A party may specify the issues it wishes to have tried by jury, otherwise it is presumed to have demanded a jury trial on all issues that are triable. The other party, within 14 days after being served with the demand, may serve a demand for a jury trial on any other issues for which the other party did not request a jury trial.
        5. Rule 38 (d): A party waives a jury trial unless its demand is properly served and filed. Can only be withdrawn is both parties consent.
          1. Waive by neglect to ask, or say you don't want one
      5. Choosing Jurors
        1. Jury Selection
          1. Define a pool
            1. Pool must be made before actual jury is selected.
            2. General composition of jury can differ substantially, just can't be discriminatory
            3. The manner in which the federal courts create cross-sectional summonses appear at 28 USC §§1863-1864, and §1866.
              1. Federal and most state statutes don't require actual jury to be representative, just that the entire list have cross-sectional characteristics.
            4. The method for challenging a jury pool appears at 28 USC §1867(c)
              1. Challenges rare now because fewer groups categorically excluded
            5. Federal exemptions: active members of military, police, firefighters, some public officials, judges
          2. Assemble an array of prospective jurors from the pool.
          3. Voir Dire – Question the jurors and choose actual 6-12 member jury
            1. Striking for Cause – Giving a reason for striking a juror. Unlimited.
              1. Thompson – If failure to ensure impartiality
              2. McDonough – If a juror lies, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and then show that a correct response would have provided a valid basis for a challenge for cause.
            2. Preemptory Challenges – Strike a juror without giving a reason. Limited number (3 in fed courts)
              1. Equal Protection
                1. Batson – Cannot discriminate based on race (criminal)
                2. Edmonson – Cannot discriminate based on race (civil)
                3. JEB – Cannot discriminate based on gender (civil)
              2. Can challenge a preemptory challenge if there is reason to believe it is racially motivated, but hard to do because one or two racial PCs don’t show a pattern of racism.
        2. Size and Decision Rules
          1. Colgrove v. Battin (1973) constitutionalized 6-member juries (as opposed to 12-member juries) (Rule 48)
            1. Fundamentally, smaller juries are less representative
            2. More likely to render aberrant verdicts
          2. Unanimous verdicts in civil cases are still required, unless parties agree to accept a non-unanimous verdict
            1. Unanimity results in more hung juries, requiring a retrial but, result in more thorough discussion of evidence
          3. Two problems:
            1. Juries reaching verdicts unsustainable in logic
            2. Judges improperly seizing control of litigation from juries
          4. Judges and juries appear to agree with each other in 80% of cases
    2. Final Pretrial Conference and Order
      1. Rule 16(e) requires parties to formulate a trial plan, clarifying the issues that the trial will be about
      2. Must be held as close as is reasonable to the trial, assumes the trial will be soon
      3. Order can only be modified after a pretrial conference only to prevent manifest injustice


Monfore v. Phillips (2015): Under Federal Rule of Civil Procedure 16(e), final pretrial orders may only be amended to prevent manifest injustice.

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    1. Jury Instructions
      1. Two Audiences of Jury Instructions
        1. The Jury
          1. Might not know the law
          2. Wants a simplified, easy-to-follow path
        2. The Appellate Court
          1. Will reverse if instruction misstates the law in a material way
          2. Wants a nuance, perfectly balance, all-inclusive statement of the law
      2. Staged Instructions vs. Traditional
          1. Staged shown to be better -- tells jury instruction as evidence presented
          2. Traditional -- tell all instructions after end of trial
      3. Judges may tell the jury what she thinks of the evidence, but cannot trespass onto the jury's autonomous decision-making space
    2. Motion for Judgment as a Matter of Law (JML) (Rule 50)
      1. Similar to summary judgment. Asks a judge to make a decision on the facts and evidence before it goes to a jury. After summary judgment stage but before going to a jury, including after close of trial.
        1. If so, the jury will not receive the case (or part)
        2. Results in a final judgment
        3. Assumes process was okay
        4. Immediately appealable


Reid v. San Pedro, LA, and Salt Lake RR (1911): The plaintiff must fail where the undisputed evidence points with equal force to two things, one of which renders the defendant liable and the other not. It is incumbent on the plaintiff to present undisputed evidence in order to render a defendant liable. It is Reid’s burden as the plaintiff to show which of these two scenarios occurred. Because the evidence points to two different scenarios with equal force, Reid does not show by a preponderance of the evidence that the cow passed through the damaged fencing.

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      1. Courts grant judgments as a matter of law when the party with the burden of production has failed to carry that burden. If party fails to carry assigned burden, they lose.
        1. Focuses on adequacy of the evidence


PA RR v. Chamberlain (1933): When evidence tends equally to sustain either of two inconsistent propositions, a verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong. The witness on whose testimony Chamberlain seeks to sustain his judgment testified that he concluded from his observations that the collision occurred. However, he did not personally observe the collision, but merely inferred from the circumstances that the crash occurred. His factual testimony was consistent with both a collision and a non-collision, and his speculation that a collision occurred is inadmissible.

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      1. A judge’s finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
        1. A judge may never make a judgment about credibility of witnesses -- a question for the jury.
        2. A judge cannot order a new trial, just because he disagrees with verdict.


Lind v. Schenley Industries (1960): The jury returned a verdict for Lind, and Schenley moved for judgment notwithstanding the verdict and, alternatively, a new trial. The trial judge granted the motion because it found the jury’s verdict contrary to the weight of the evidence. A judge should not set aside the jury verdict as contrary to the weight of the evidence simply because he would have come to a different conclusion. Here, the case was simple and required the jury only to weigh the testimony of Lind and his secretary, who, if believed, presented an overwhelming case in Lind’s favor.

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      1. Burdens can shift/be shared between plaintiff and defendant depending on what they're claiming at trial
      2. Historically, a directed verdict because judge would tell jury to return a particular verdict.
        1. Motion for Judgment Notwithstanding the Verdict (JNOV)
          1. This procedure is similar to a situation in which a judge orders a jury to arrive at a particular verdict, called a directed verdict.
          2. Occurs after the verdict has been rendered.
          3. Reversal of a jury's verdict by a judge when the judge believes that there were insufficient facts on which to base the jury's verdict, or that the verdict did not correctly apply the law.
      3. New Trials
        1. Rule 59(a) In General.
          1. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:
            1. (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or
            2. (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.
          2. (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.
          3. (d) New Trial on the Court's Initiative or for Reasons Not in the Motion. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order.


Peterson v. Wilson (1998): The district court granted a new trial after it met with jurors following the trial and learned information from which it determined that the jury had disregarded its instructions. A verdict can be against the great weight of the evidence and thus may justify a new trial even if there is substantial evidence to support it. According to FRE Rule 606(b), juror testimony to impeach a jury verdict is prohibited. Receiving testimony from the jurors after they have returned their verdict, for the purpose of ascertaining that the jury misunderstood its instructions, is absolutely prohibited. A new trial was improper.

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      1. New Trial Orders
        1. Look either at evidentiary adequacy or process
        2. Send case to new jury
        3. Do not result in final judgment, if granted
        4. Are unappealable (unless conditional as part of a JNOV order)
      2. Flawed Procedures
        1. Judge concludes process leading up to the verdict flawed
          1. Impermissible argument by a party
          2. Judge concluded she erred in admitting evidence or gave wrong instructions
          3. A juror misbehaved during trial
      3. Flawed Verdicts
        1. Verdict is against the great weight of the evidence
        2. May not simply decide how judge would have voted as a juror
      4. Summary Judgment (Rule 56)
        1. Occurs after close of discovery
          1. A party can use evidence unearthed during discovery and other informal investigation to challenge the truth of assertions made in pleadings
        2. A court can grant summary judgment in cases in which there is no material factual dispute.
        3. Summary judgment should be granted if, given the evidence presented, no reasonable jury could find for the nonmoving party.
        4. Summary judgment may be appropriate because the critical dispute concerns the law, or where the law was clear but one party lacked evidence supporting a critical element of her case.
        5. For a 12(b)(6) and 12(c), if the court considers matters outside the pleadings, it must convert the motion to one for summary judgment and provide all parties a reasonable opportunity to present all material. This can occur before discovery.
        6. No witnesses testify in court, and no jury is present.
        7. Moving for Summary Judgment
          1. Moving Party
            1. Notice of motion/motion
            2. Affidavit in support of motion
            3. Memorandum of law
            4. Proposed order (if required)
          2. Responding Party
            1. Affidavit in opposition of motion
            2. Memorandum of law
            3. Proposed order (if required)


  1. Appeal
    1. 28 USC 1291
      1. COA shall have JX of appeals from all FINAL DECISIONS of the district courts of the US, the US DCt. for the canal zone, and its territories
      2. JX for the fed circuit shall be limited to JX described in 1292c and d and 1295


  1. Respect for Judgments
    1. Res Judicata (Claim Preclusion)
      1. A claim is precluded when it arises out of same transaction or occurrence as another claim, and if there has already been a valid and final judgment on the merits regarding the previous claim and if the parties in the action are identical to those in previous action.


Frier v. City of Vandalia (1985): Claim preclusion operates to bar a cause of action where the second cause of action is based upon a common core of operative facts with the first. The state (replevin) and federal (due process) claims in this matter were based on different legal theories, but as both involved the same facts–Frier’s cars being towed by the city–claim preclusion bars the second claim. The decision of the state court is affirmed.

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      1. Requirements:
        1. Claim in F2 must arise from the same transaction or occurrence [CNOF] as F1 claim
        2. Lawsuit in F1 must have been disposed of on the merits
        3. Parties must be the same


Garagallo v. Merrill Lynch, Pierce, Fennder, & Smith (1990): An existing final judgment rendered upon the merits is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. A federal court is required to give a state court judgment the same preclusive effect such judgment would have in a state court.

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      1. There are six categories of exceptions to the rule against nonparty preclusion.
        1. (1) agreement by the parties to be bound by a prior action;
        2. (2) preexisting substantive legal relationships;
        3. (3) adequate representation by someone with the same interests who was a party;
        4. (4) a party "assuming control" over prior litigation;
        5. (5) a party who loses an individual suit, then sues again, this time as the representative of a class;
        6. (6) special statutory schemes such as bankruptcy and probate proceedings


Taylor v. Sturgell: FOIA claim brought by π1, denied, then same claim brought by π2. π’s were friends. FAA argued claim preclusion because π1 already brought claim & π2 virtually represented him because they were friends and had the same claim.

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      1. Virtual Representation
        1. This theory states that a litigant may be subject to claim preclusion if they bring a claim that was litigated in a previous suit and
          1. (1) their interests were adequately represented by the previous litigant and
          2. (2) a close relationship between the old party and the new party, participation by the present party in the current case, or “tactical maneuvering” by the present party in order to avoid preclusion in the first case. 
        2. Crappy application of res judicata because:
          1. litigants are generally not bound by the actions of another. 
          2. the “virtual representation” doctrine would hold a litigant responsible for a suit for which they were not noticed. 
          3. litigating these kinds of claims would take up a significant amount of the court’s time.
      2. Jurisdiction
        1. A judgment on the merits doesn’t allow a case to be brought in the same court, but it can be filed somewhere else depending on the law of the different jurisdiction. (SEMTEK)
        2. Semtek – Second court should apply the jurisdictional rules of the first court. Since first court in California and CA law allows a res judicata case to be brought in a different jurisdiction, the case could be brought in MD. Then, MD can apply its own res judicata rules.
    1. Collateral Estoppel (Issue Preclusion)
      1. Issue Preclusion
        1. An issue or fact
        2. Actually litigated and determined
        3. Prior valid and final judgment
        4. And the determination is essential to the judgment
        5. Need not be a whole claim
      2. Mutuality -- does not have to be the same parties
        1. Only the party against whom issue preclusion is being asserted must be the same as the prior case


Illinois Central Gulf Railroad v. Parks (1979): Issue preclusion allows the judgment in the prior action to operate as an estoppel as to those facts or questions actually litigated and determined in the prior action. In the present case, claim preclusion is not applicable because Jessie’s claim for damages was a different cause of action from his loss of services and consortium claim. However, issue preclusion is applicable as some facts and issues in the first case would be retried in this subsequent action between the two parties.

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      1. Offensive use of collateral estoppel (i.e. a plaintiff is seeking to estop a defendant from relitigating issues which the defendant previously litigated and lost against another plaintiff)
        1. New π against old ∆
        2. The offensive use of collateral estoppel may be unfair to a defendant in cases where the defendant was:
          1. sued for nominal damages in the first action and did not vigorously defend,
          2. denied certain procedural advantages in the first action, or
          3. where the judgment relied upon as a basis for the estoppel is inconsistent with one or more previous judgments in the defendant’s favor.
        3. Standard for preventing unfairness:
          1. trial courts should be granted broad discretion to determine when offensive collateral estoppel should be applied.
          2. where a plaintiff could easily have joined in the earlier action or application of offensive estoppel would be unfair to the defendant, a trial judge should not allow the use of offensive collateral estoppel.


Parklane Hosier Co v. Shore (1979): A litigant who was not a party to a prior judgment may nonetheless use that judgment offensively to prevent a defendant from relitigating issues resolved in the earlier proceeding, provided that (1) the plaintiff could not easily have joined in the earlier action and (2) use of the judgment will not result in unfairness to the defendant.

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      1. Defensive use of collateral estoppel (i.e. a plaintiff was estopped from asserting a claim that the plaintiff had previously litigated and lost against another defendant).
        1. New ∆ against old π
      2. Full Faith and Credit Clause
        1. Collateral Attacks
          1. Claim preclusion and issue preclusion generally apply to cases brought in the same court
          2. FF&C jurisprudence fills the gap
            1. 28 USC 1738


Durfee v. Duke (1963): Under the Full Faith and Credit Clause, a state court’s judgment on subject matter jurisdiction is entitled to res judicata effect in other state and federal courts if the question was fully and fairly litigated in the original court.

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      1. Doctrine of Independent Action
        1. If “grave miscarriage of justice”, res judicata doesn’t apply. Must reopen case to remedy injustice.
        2. Rule 60(b)


US v. Beggerly (1998): Evidence of title, even though US Gov said they couldn’t find it. Resulted in a settlement. Sued to set aside settlement & award damages. COA said satisfied elements of a Rule 60(b) independent action. Held: An independent action must be reserved for those cases of injustices that are deemed sufficiently gross to demand a departure from rigid adherence to the doctrine of res judicata and allow a case to be reopened after a decision has been rendered.

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      1. Multiple Claimant Anomaly
        1. State Farm v. Century Home Components
          1. Admits that potential for incongruous cases
          2. But if multiple cases but only two plaintiffs, yes can issue preclude even if there’s a potential for incongruous cases
        2. What if 50 people all with claim against defendant
          1. All sue individually
          2. 25 verdicts for defendant
          3. 26th for plaintiff
            1. Can plaintiff's finding of negligence by defendant be used against the defendant in 24 remaining cases?
        3. Remedy: Assign all similar cases to one judge


  1. Joinder
    1. Policy Behind Joinder
      1. A larger litigative package confers advantages: It allows a court in a single suit to adjudicate multiple claims against multiple parties and for litigation to reflect some of life’s complexity.
      2. Disadvantages can also flow from this freedom: Litigation can become intricate, and considerable procedural skirmishing can occur long before the merits come into view, as parties dispute whether a particular party or claim is joined.
    2. Joinder of Claims
      1. By Plaintiff
        1. Rule 18 allows a single plaintiff to join any and all claims against a single defendant
          1. Does not require joinder, but compelling reasons to do so:
            1. Res judicata -- if did not join a claim and found to be related to one adjudicated, it will be claim precluded
            2. Efficiency
        2. Rule 42(b) allows a judge to sever claims for trial convenience if there are too many
      2. Joinder and Jurisdiction
        1. A federal court may lack SMJ over a state law claim joined by a plaintiff against a defendant
          1. Joinder may be proper as a matter of pleading, but beyond jurisdiction of court
        2. Supplemental jurisdiction(1367) depends on four variables:
          1. Relationship between the original claim and claim to be joined
          2. Basis of the original jurisdiction over the case
          3. Identity of the party seeking to invoke supplemental jurisdiction
          4. Rule authorizing the joinder of the party or claim over whom supplemental jurisdiction is sought
        3. Must have a claim that can stand alone in jurisdiction
        4. If no personal jurisdiction, supplemental jurisdiction cannot help you.
          1. Must bring suit in state where there is personal jurisdiction for both parties.
          2. 4(k)(1)(B) might help extend PJ
            1. Serving summons or failing a waiver of service establishes PJ over a ∆ who is a party joined under Rule 14 or 19 and is served within a judicial district of the US and not more than 100 miles from where summons was issued
      3. By Defendant
        1. Rule 13 permits/sometimes requires defendants to assert claims against the plaintiff
        2. 13(a) Compulsory Counterclaims
          1. (1) A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
            1. (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
            2. (B) does not require adding another party over whom the court cannot acquire jurisdiction.
      4. 13 (b) Permissive Counterclaim: A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
      5. 13 (c) Relief Sought in a Counterclaim: A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
      6. Rule 13(g) Crossclaims: A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant


Plant v. Blazer Financial Services (1979): A counterclaim is compulsory if it arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim and there is a logical connection between the claim and counterclaim
Mosley v. General Motors Corp. (1974): In a class action employment discrimination case, individual plaintiffs’ claims may be joined in a single action, even if individual class members have suffered different effects from the alleged discrimination.

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    1. Joinder of Parties
      1. By Defendants
        1. Third Parties
          1. Rule 14 (1): A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.
          2. Rule 14 has two attractions for parties defending against claims
            1. Gives them a way of bringing into the suit anyone who might help foot the bill
            2. Gives defendants a way of delaying the case and making litigation more expensive for the plaintiff by adding another party (three parties, instead of two)
        2. For the defendants, drawbacks:
          1. Now two parties that will attempt to show defendant's liability


Price v. CTB, Inc. (2001): Price (plaintiff), a chicken farmer, sued Latco, a chicken coop builder, and CTB, Inc., a poultry systems manufacturer (defendant), alleging Latco constructed a defective chicken house. Latco moved to file a third-party complaint against ITW, the manufacturer of the nails used in the construction, alleging that the nails were defectively manufactured. Held: A defendant may assert a claim against a third party only when the defendant is trying to pass all or part of the liability onto that third party. Under Rule 14(a) of the Federal Rules of Civil Procedure, a defendant may implead a third party if the third party is additionally liable in the original action. ITW can be found liable for its products if Latco is first found liable for faulty construction.
Temple v. Synthes Corp. (1990): Temple sued Synthes for defective design and manufacture in federal court based on diversity, and Dr. LaRocca and the hospital for malpractice and negligence in state court. Synthes filed a 12(b)(7) motion to dismiss Temple's federal suit for failure to join necessary parties pursuant to FRCP 19. Held: It is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. Joint tortfeasors are not necessary and indispensable parties but merely permissive parties. The Advisory Committee Notes to Federal Rule of Civil Procedure 19(a) explicitly state that "a tortfeasor with the usual 'joint-and-several' liability is merely a permissive party to an action against another with like liability." Because the threshold requirements of Rule 19(a) are not satisfied, joint tortfeasors are merely permissive parties and therefore the public interest considerations of Rule 19(b) need not be considered.
Helzberg's Diamond Shops v. Valley West Des Moines Shopping Center (1977): K with Helzberg to lease to them & not more than 2 other catalogue jewelry stores. Later, K with Lord’s, who intended to run as a catalogue jewelry store. Helzberg filed a complaint in federal court based on diversity jurisdiction seeking injunctive relief to restrain Valley West from breaching the lease agreement. alley West moved to dismiss the action for failure to join Lord’s, which it claimed was an indispensable party to the suit. The district court denied the motion. Held: In general, a party is not recognized as indispensable to a cause of action arising out of a contract simply because that party's rights will be affected in an entirely separate contract. Here, Lord’s is not prejudiced by the district court’s granting of injunctive relief. Even if Valley West terminates Lord’s leasehold interest as a result of the preliminary injunction, Lord’s still will retain all of its rights under its lease with Valley West. None of Lord’s rights or obligations will be determined by adjudication of the present suit. Furthermore, the district court offered to Lord’s the opportunity to join the proceeding, which Lord’s declined. The district court was permitted to proceed with Helzberg’s cause of action knowing that Lord’s had notice and a fair opportunity to be heard in the action.


      1. Intervention (Rule 24)
        1. Allows a nonparty to join in on a suit to protect their own interests.
          1. A person seeking to intervene will argue that none of the parties can represent her interests because of fraud, collusion, or other wrongdoing that pits the intervenor against one or both of the parties in the case.
          2. Another common reason for intervening is that the legal arguments that will best serve the parties in the case are not the same as the legal arguments that will best protect the intervenor.
          3. Intervenors are expected to stick to issues that are closely and directly related to the original case.
            1. Protect the time, expense of case.
          4. An intervention will be prohibited, even if it is “as of right,” if the court does not have subject-matter jurisdiction over the intervenor’s issues.
        2. Compulsory
          1. On timely motion, the court must permit anyone to intervene who:
            1. (1) is given an unconditional right to intervene by a federal statute; or
            2. (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
        3. Permissive
          1. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.
        4. Notice
          1. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.


Natural Resources Defense Council v. US Nuclear Regulatory Commission (1978): The United Nuclear Corporation (United) was granted a license by NMEIA, but the plaintiffs seek to enjoin its issuance. United intervened. Subsequently, Kerr-McGee Nuclear Corporation (Kerr-McGee), another uranium mill operator, and the American Mining Congress (AMC) moved to intervene. Intervention as a matter of right was denied, because United adequately represented the interests of the intervenors. Held: Under Federal Rule of Civil Procedure 24(a)(2), nonparties to a federal lawsuit may intervene as a matter of right if they have an interest in the subject matter of the lawsuit, disposition would practically impair their ability to protect that interest, and the interest is not adequately represented by existing parties. the outcome of this case may be that an EIS must be completed before any license is issued by the NMEIA or that the agreement authorizing the NMEIA to issue licenses is invalidated. This impacts the interests of operators in the state, like Kerr-McGee and the members of the AMC. That interest could be impaired, because the decision will have the effect of stare decisis and may directly impact the NRC and NMEIA. Although United’s interests are similar to those of Kerr-McGee and AMC, they could diverge. United has been granted a license and could raise a laches defense.
Martin v. Wilks (1989): City asserted that the consent decree in suit with black firefighters precluded the (white) plaintiffs’ lawsuit. Thus, the City moved to dismiss the reverse discrimination suit, arguing it was an impermissible collateral attack. The Eleventh Circuit Court of Appeals reversed, holding that the plaintiffs’ claims could not be precluded by the consent decrees because they were not parties to the previous action. Held: A judgment is binding only on the parties to the lawsuit. The deep-seated American rule is that a person will not be bound by an in personam judgment if he was not named as a party or served process in the action. A party cannot require a non-party to intervene. This is why intervention under FRCP 24 is permissive. Whether the non-party had knowledge of the lawsuit is irrelevant; only joinder will subject the non-party to the court’s jurisdiction.

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      1. Interpleader (§1335 & Rule 22)
        1. Asks two parties to figure out liability/responsibility/who gets what.
        2. §1335: Creates a subject matter jurisdictional basis IFF the claimants are minimally diverse and amount is greater than $500. Venue determined by residence of one or more claimants.
        3. Rule 22: Relies on normal subject matter jurisdictional requirements. Ordinary venue rules (1391