NOTICE Notice must be given and an opportunity to be heard under due process clause.

NOTE: A suit is commenced at

the moment the suit is filed (Rule 3)not when the party is served. o Service of process Federal Rule 4 Include summons and copy of complaint 4(c) (1) and waiver form, serve with time set by 4M Service by any nonparty at least 18 years of age Methods of service Rule 4(e)(2) Personal Service (in Federal Court) Substituted Service ok if: o Ds dwelling house or usual abode AND o Service on a person of suitable age and discretion who resides there (spouse is okay if they arent separated; live in maid is okay) Service on Ds appointed agent OR State Law (4(e)(1)may use state law for serving summons in the state where district court is located OR where service is made. Waiver of Service of Process Rule 4(d) P can request waiver of service and must allow 30 days for Ds reply. No process, merely a waiver of service of process by mail Carrot/Stick: If they waive, they get extra time to file response (60 days after the request was sent). If they dont waive, they have to pay costs of personal service. Can serve throughout the state where the federal court sits or out of state is state law allows State Court Due Process Limits Reasonable method Mullane o Factors: Type of interest that the party has Likelihood that the notice will be received Cost of alternative methods o How they work together: In Mullane, youre serving a group of people who all had similar interests court was willing to accept a form of service with less likelihood of success because they were all similarly situated If there are parties who have very different interests, the likelihood would change E.g. if you contact 99/100, but the one who dont contact is the kind that is likely to object probably not sufficient o Mail Rule whole lot of cases First-class mail is an acceptable method of notice Less is unconstitutional, more is likely to be unnecessary But Jones established the return Reasonable time (specifically: what if you werent contacted before something happened to you) generally concerned with prejudgment proceedings o Doehr balancing test: Ds interest Likelihood of error and safeguards Ps interest o Various factors which protect the D in these types of cases: That D would get a hearing on the merits at some point does not have to be before the actual seizure P should be required to give an affidavit (a sworn statement, under penalty of perjury) makes sure its not an ephemeral claim (P actually has some legal basis) P must set forth specific facts in the affidavit that seller is entitled to possess that property in the meantime Order from a judge (not from the sheriff) a judicial officer passing on the judgment of prejudgment seizure P ought to be forced to post a bond so in order to get the property back, he is required to post money so that if he loses the litigation, there is money from which to pay Ds litigation costs If P posts a bond, D may be able to get possession back (pending litigation) if they post a counterbond

Constitution / Opportunity to be heard(Replevin Cases) OK if reasonably calculated under all circumstances to apprise the defendant (Mullane)first class mail is almost generally always okay. Service by publication only ok in very rare cases where identity of defendants is unknown (Mullane) Party must be granted enough time to prevent a possibly unlawful seizure, and therefore must be notified first. Fuentes v. Shevin: Florida and Pennsylvania had laws that allowed a debtor's property to be taken before (and in PA, without) a hearing as long as a bond was posted. Party must be granted enough time to prevent a possibly unlawful seizure, and therefore must be notified first. 5th & 14th amendments don't allow taking property without due process. (A rental interest counts as ownership for this purpose). Court: posting a bond or $ damages isn't enough to get around the taking. (dignitary interest in police not taking your stuff, etc.) Due process requires notification (Mullane) so D can defend herself (opportunity to be heard) Judge: more weight than for a clerk. o Reasonable methodMullane Factors Type of interest Likelihoodlikelihood relates to the type of interest. If everyone had an identical interest, then a lower likelihood might be allowed but if everyones interests were divergent, then you might need a higher standard. Likelihood and type of interest exist in relation to one another. However, do we require a different type of notice in a case for 1000 dollars rather than 1000000 dollars. Notice turns on these factors, not on how valuable the court thinks the case is. Cost of alternative method Mail Rule (a whole lot of cases)generally, mail is sufficient BUT Jonescuts out an exception. If you find out that service is insufficient, the party cannot stand back. If the party finds out it is insufficient, they cant throw up there hands and say Oh Well! If you know the name and address When you talk about this, you are talking about a state law that requires less than some limit. o Reasonable Time Fuentes line of cases (p. 33) Test is the balancing test where we balance: o Defendants interest o Likelihood of error and safeguards o Plaintiffs interest. o Under what circumstances would it be okay to have prejudgment replevin? In extraordinary situations, if there is a special need for prompt action, if it was a special need and the government official determining the circumstances. In certain circumstances there is a real need for seizure. Examples: Misbranded drugs. May be a real need to seize this from stores. Opportunity to be heard (Replevin cases, seize your property and you think it is rightfully yours) Safeguards: that wont violate due process if party is not notified. The law required proof that D could damage property or flee, allege specific facts, be decided by a judge, prompt hearing, property to be stored rather than transferred, and post a bond. More protection in this than in Fuentes. Distinguished because there are safeguards to ensure accuracy. Pre-attachment hearing or exigent circumstances for Due Process (Connecticut v. Doehr) (p.35) 3 Part Test: 1) Strength of Ds private interest 2) Risk of erroneous deprivation 3) Interest of party seeking remedy

Affidavit of Plaintiff: o Plaintiff must state specifics o Obtain an Order from a judicial officer (judge not a clerk) o Plaintiff can be required to post a bond o Defendant gets a prompt hearing on the merits PLEADINGS documents filed setting forth claims and defenses Federal rules very liberal, just for putting each other on notice Rule 11must find a reason in 11(b) to sanction someone o Requires attorneys to sign all documents except discovery o Signature certifies everything in Rule 11(B)(1) not for improper purpose, (2) argument is warranted by existing law or a non-frivolous reason to change the law, (3) facts are likely to have evidentiary support, (4) denials are warranted o Procedural aspects of Rule 11(b): Effective every time document is brought to court Sanctions are discretionary meant to be deterrents Motion for violation is served but not filed for 21 days giving other party time to fix it Plaintiffs Complaint Rule 8(a) what P files to start law suit o Must have three things: Statement if SMJ Short and plain statement of the claimTwombly/Iqbal(1) remove conclusory allegations, (2) does it plausibly state a claim (has it alleged facts inconsistent with perfectly legal behavior) Exceptions 9(b) and (g) - fraud, mistake, special damages (plead with particularity) PLSRA(Tellabscourt must weigh inferences urged by P with any competing inferences rationally drawn from the facts. Ps inferences must be at least as compelling as competi ng inferences. Scalia: must be more plausible than any competing interest). Necessary (but not affirmative) defenses must be pled (you owe me money, you didnt pay me) Prayer for relief must plead enough for suit to be taken seriously. Default J. 8.d.2 alternative theoriescomplaint is sufficient if any one theory is sufficient. Defendants Response o Answer or 12(b), (e), (f) motion within 20 days Motion to dismiss o Answer pleading that must do two things: Respond to all allegations of the complaint by: Admit o Zielinskiif you answer improperly and the info is solely in your hands then you may be punished for it. Deny o Failure to deny treated as admission except damages o General denials are allowed but generally disfavored I dont know lack sufficient info (acts as denial) o 12(e) motionI dont understand the question and I wont respond to it. Raise affirmative defenses Officially waived if not in your answer (so MUST include in answer) Admit that you did it, but there is some other reason that P can not win (statute of limitations, self-defense) Rule 8(c) lists affirmative defenses (not all inclusive) to know if P needs to raise or can be left to D Rule 8(b)(6) P is deemed to deny affirmative defenses Rule 12(b)all but SMJ, failure to state a claim, failure to join a party under Rule 19 are waived unless raised in answer. Amended Pleadings Rule 15 o 15(a) three basic rules (as a matter of right) P has right to amend once before D answers (not a motion) D has a right to amend once w/in 20 days after answering If no right to amend, can seek courts permission

o o o

15(a)ability to amend granted freely as justice so requires (Beeck case) Implied consent (Moore)if something gets pleaded in court but you dont object, then you impliedly consent. 15(b) concerns variance Where evidence at trial does not match what was pleaded Other party doesnt object, treat as if in the original pleading Other party objects, evidence is inadmissible, but can motion to amend the pleadings to include 15(c) amending after statute of limitations has run Relation back treat amended pleading as if filed when original was If state law allows it 15(c)(1) New claim against existing party if material is from same transaction, or occurrence as original claim 15(c)(1) Adding a new party 15(c)(1) (c): o Same conduct o Notice in less than 120 days (within 4m requirements) - Must have known that the suit existed o Must not be prejudiced o Added party knows or should have known of mistake Mistake can happen if parties are known (KrupskyCruise where P knew of the existence of the other cruise company but sued the wrong party by mistake) Mistake does not include John Does

Sanctions - Lawyer must sign all papers filed with the court - Rule 11(b)before a lawyer does anything he must make a reasonable inquiry. 4 reasons you can be sanctioned: o Improper purposeto harass or something like that o If you argument is not warranted by a existing law or a non frivolous reason to change the lawpunished for being so bad at your job o Fact are not likely to have evidentiary supportyouve said something you know not to be true? o Denials arent warranted - We have sanctions to deter bad conduct, not to punish. - You must find a reason in 11(b) to sanction someone.
SUBJECT MATTER JURISDICTION

State CourtCourts of general jurisdiction - Check for exclusive federal jurisdiction (that would pull them out of state court) o Some federal claims by law cannot be heard in state court (antitrust, securities, IP, patent, copyright, interstate commerce) Federal Courts - Courts of limited jurisdictionSMJ can never be waived in Fed Ct and can always be challenged. o Have exclusive jurisdiction for anything states in Article III, Sec. 2 such as (admiralty, between states, US as a party) Types of Jurisdiction - Federal Question o Is there a federal claim that is an original ingredient to the case (Protective jurisdiction in Osborn)This is the Congressional limit o 1331uses same language as Article III but interpreted in the same way. Always ask, did Congress intend for some extension of 1331 to be created? Would Congress want this case in fed court? WPC-Shoshone + Smith/Grable Well pleaded complaint rulecause of action has to rely on the operation of federal law. Ignore Ps preemptive responses to claims that maybe raised by D. Federal law has to be the thing creating liability. 4

o Exception (Shoshone)if federal law explicitly adopts state law (hear in state court) o Smith/Grable where federal law is a very, very important part of a case (but the WPC rule is not met)look at the nature of the fed interest. In both Smith and Grable, we are talking about the federal governments ability to fund itself. 3 part test from Grable: (1) does the claim necessarily raise a stated federal issue, (2) contested and substantial, (3) which federal forum can entertain w/o disturbing any congressionally approved balance of fed and state judicial responsibilities. Empire Factors: (1) pure question of law or more fact intensive inquiry? (2) will it violate congressional balance of labor btw federal and state court, (3) likelihood of reoccurring? (4) need for uniform answer. o Counter claims and defenses cannot give rise to federal jurisdiction. Diversity Jurisdiction o Under Article 3, Congress can create jurisdiction where there is only limited or minimal diversity (at least one plaintiff is diverse from at least one defendant)minimal diversity is the full extent of Article 3 1332general mill of cases Complete Diversity? There are no common parties are opposite sides of the v. There are no defendants from the same state as any plaintiff. o Domicile test (Mas v. Perry/Zuckerberg)domicile doesnt change unless they move with the intention to remain there. Corporations domicile (Hertz)where incorporated and PPB test: Nerve center Test Amount in Questionin general the plaintiffs claim is taken on its word, unless D can prove that its not worth 75K. Does not include costs or interest. o AFA ToursP must have opportunity to prove that his claim exceeds 75K. o An individual can add up all of his claim to reach the jurisdictional limit. Many individuals, however, cannot aggregate their claims to reach the jurisdictional limit. In a class action (all seeking to enforce same right) outside of CAFA, one claim has to exceed the jurisdictional limit. Domestic Relations EXCEPTIONif they are cases about marriages, wills and estate, federal court will not hear it unless they are cases coming out of marriages and wills. (Marshall) Special Statutes o CAFA:28 USC 1332daggregated 5 million dollar class actionminimal diversity Court may refuse jurisdiction if 1/3 - 2/3 are from the same state and must refuse if more than 2/3 are from the same place. o MMArequires only minimal diversity (1369) Single accident in which 75 people have died and has occurred in the same location. (e.g., BUS ACCIDENT) Supplemental Jurisdiction (1367)discretionary doctrine o Is there a claim over which the federal court has jurisdiction? o If so, it can add claim or party IF Claims arise out of the same T/O (same common nucleus of operative factGibbs)we have the power to hear the case so we decided the scope of the case. Note: the grant of supplemental jurisdiction is good even if the supplemental claim is against a different D than the D in the jurisdiction invoking claim. Added party wont destroy diversity jurisdiction: 5

Is the original claim a diversity suit? If yes, then Is the supplemental claim asserted by a PLAINTIFF? If yes, then Is the PLAINTIFF: o (1) asserting a claim against parties joined under Rules 14, 19, 20, or 24? o (2) a Rule 19 plaintiff? o (3) seeking to intervene under Rule 24? o If yes, them NO supplemental jurisdiction, must dismiss. Exxon Mobilyou can add a party that itself doesnt meet the amount in question rule as long as there is one party that meets the amount in questions rule) BUT they can decline supplemental jurisdiction by applying one of these four reasons: (1) Complex state law, (2) state claim predominates. (3) fed claim is dismissed, (4) other compelling reasons Removal (1441)ONLY AVAILABLE TO DEFENDANTS! All Ds must consent to removal. o Could the case have been brought in federal court? If yes, then o Was the defendant sued in his own home state court? If yes, then o No, removal UNLESS its a FQ case!! If its FQ then removal! Exception: CAFA1453 provides for the removal of interstate class actions to fed court without regard for whether any D is a citizen of the state in which the action is brought (except that any defendant may remove without the consent of all defendants).

PERSONAL JURISDICTION

Personal Jurisdiction - State Court o Does state seek to assert jurisdictionlong arm statute (full extent of the constitution? Abridged? o Waived? by contract (Carnival Cruiseback of ticket)?; by failure to raise PJ in answer? ConsentIf you show up in ct with the purpose of contesting PJ and you lose, youve consented to PJ. (Hess: service by agent) Forum Selection Clauseenforceability of such clause will turn on contract law and SMJ not on PJ. Well let you consent, if you want to. o Does the states assertion of jurisdiction fall within either of the categories the Constitution allows? Did the Cause of action arise out of or related to the forum state? IF NO: General, IF YES: Specific General Jurisdictiondomicile resident/continuous and systematic contacts You have sufficient contacts that state can exercise jurisdiction over D regardless of where the cause of action arose. (Helicoptoros insufficient, fact that they are an oil company means they have to have contact with oil capital; PerkinsAction happened in Phillippines but the CEO maintains an office and lives in OH, thats enough for general jurisdiction). Specific Jurisdictionsufficient minimum contacts that state has jurisdiction over action that occurred within the state. The facts have to bear some relationship to the state. Helicoptoroswe dont know whether its arose out of or related to. Are their sufficient minimum contacts (International Shoe)? minimum contacts sometimes refer to the test and sometimes refers to a leg of the test. o Minimum contacts (purposeful availment) Contracts (Burger King)Contracts plus Minimum contacts and FPSJ are interrelated and balanced (weakness on one side can be balanced by strength on the other side). Minimum contactspurposeful availmentLook at communication and transaction between parties before, 6

during, and after the consummation of the contract to determine the degree of contacts apart from the contract. o Hansoncant be created by Ps unilateral actions Stream of Commerce (WWV/Asahi) Minimum contactsDid you purposefully avail yourself of the forum such that it is reasonable that D could foresee getting hauled into court (WWV)? o Asahi OConnorKnowledge Plus Test (SOC + Purposeful availment) Knowledge+ direct targeting of the forum state. You have to have knowledge the product will end up in the forum PLUS you must exhibit deliberate intention to take advantage of states markets or its laws. Brennan(SOC) just need knowledge. o Nicastro Everyone agreed that No Purposeful Availment: Scalia purposeful availment PLUS direct targeting Ginsburg Didnt have purposeful availment but has knowledge of where the product ends up. Doesnt need direct targeting. Effects Test (Calder): (1) intentional act, (2) expressly aimed at the forum state, (3) causing harm the brunt of which is known to likely have been suffered in the forum state. HustlerPs contacts not prereq. Note: that when doing FPSJ, Ps interest in having it heard in the forum is going to be substantial. Kulko: CA tried to assert PJ because Dad purchased a plane ticket for his daughter. Calder test doesnt pass: didnt avail him to CA law. Technology (1) purposeful availmentZippo (if its a passive site, its like a phonebook, but if its interactive or if you engage in heavy amounts of transaction then its purposeful availment); (2) purposeful directionPebble Beachneed something more than a foreseeable effect (e.g., Pebble Beach domain name).

o FPSJ (1) burden on D, (2) Ps interest and convenience, (3) states interest in adjudicating dispute (may affect operation of states laws, many facts took place there), (4) interstate judicial system interest in reducing conflict (dont want to cause conflict in one state by hearing a case that the other state really wants to hear), (5) shared interest of states in judicial economy [WWVcan have all the fairness in the world but that wont fly if you have no contacts! BUT according to BK, weakness on one side can be made up by strength on the other side]. Jurisdiction over a thingin light of the 14th Amendment (and Mullane), its not jurisdiction over a thing, but jurisdiction over a persons interest in a thing. No more Quasi in rem and in rem as separate law. Quasi in Remrun it through the minimum contacts test (purposeful availment and FPSJ). Land ownership is going to be a big contact but its not a way out of the test. Note: In a quasi in rem suit, the judgment will only stretch to the value of the property. In Remalso must run through the minimum contacts test but its impossible to imagine an in rem suit over which a state will not have PJ. 7

o Where the owner of the property is unknown, the traditional rules apply. It would be as if you were suing the property. (check notes) IMPORTANT: Is the sequestration of the thing constitutional? Check it against Doehr (p.35 of notes)some factors: (1) special need for promptness, (2) who did you file it with (clerk or judge?), (3) did you put up a bond? TAG (Burnham)Plurality opinionScaliafocuses on physical presence its so fair, minimum contacts test is unnecessary (if you get TAGged in the jurisdiction then you can get sued for anythingits general jurisdiction!). Brennanfocuses on voluntary presencephysical presence provides a strong presumption that minimum contacts (purposeful availment and FPSJ) are met, but you still have to run through the test. Federal Courtserving a summons or filing a waiver of service establishes PJ over D. o Rule 4(k)(1)would the state in which the district court is located be able to assert PJ over D? Does the state attempt to assert jurisdiction through long arm? To what extent? Does the constitution limit? Minimum contacts(1) purposeful availment, (2) FPSJ. o Parties joined under Rules 14 and 19service within a judicial district of the US and not more than 100 miles from where the summons was issued. o UNLESS Congress says differently, in which case you can sue in any district in the country, provided it is consistent with minimum contacts analysis (purposeful availment and FPSJ) with respect to the U.S. as a whole. (4(k)(1)(c)). Little bit of debate: a few district courts have applied a
FPSJ test about the district inside the U.S. even where there was nationwide service -- but for the most part courts do both min cts and fpsj w/r/t the whole country.

o Rule 4(k)(2)if there is no state where there would be sufficient contacts but there are sufficient contacts with the US as a whole then you can sue in any state in the union.
VENUE (most convenient forum)

Venuewhich court in a system that does have power over you is statutorily allowed to hear the case. o Do all Ds reside in a district? If not, do they reside in the same state? If yes, then any district of that state. o Any district in which a substantial part of the claim arose. o If corporation, anywhere this is PJ o Specialized venue statute?(e.g., anti-trust cases) o If no district, (ONLY APPLIES IF THERE IS NO DISTRICT WHERE VENUE IS PROPER) Diversitya district in which any D is subject to PJ at the time the action is commenced. FQa district in which any D may be found. Transfer(1404)If venue and PJ are proper then court can transfer a case to any judicial district or division in which it might have been brought if its convenient for parties and witnesses and in the interests of justice. Van Dusen Rule applieschoice of law rules travel with the case o 1406improver venue but PJ is propercourt may TRANSFER OR DISMISSchoice of law does not travel o 1631no PJ , venue is properchoice of law does not travelSOL stops running when filed in the court from which it was transferred. o 1407multidistrict litigationtransfer of all the discovery processes to one court and transfer back for fact finding. (usually for Class Action) Forum Non Convenensan out for when venue and jurisdictional rules permit but holding case is bad idea o Gulf Oil FactorsPs choice of forum should rarely be disturbed but it may be if other factors substantially outweigh (note: if Ps interest will be more heavily weighed if P is US citizen) (1) access to sources of proof, (2) witnesses (ability to compel and cost of obtaining, (3) possibility of view of premises, (4) questions of enforceability, (5) availability of another forum, (6) practically easier (foreign law is going to be really tough to apply), (7) current forum is vexing or harassing to D, (8) public interest: is it worth the expense of trying the case here? (e.g., use of judicial resources, impaneling jury). 8

o Piper rulethe mere fact that another systems law is going to be worse for the plaintiff is not going to be determinative as long as there is another forum for hearing the case (so long as that forum is fairreplace Scotland with Iran).
JOINDER/MULTI-PARTY LITIGATION (SMJ for each new claim; PJ, SMJ, Venue for each new party)

Adding Claims (Rule 18)party MAY (not required) assert as many claims, counterclaims, or cross claims as it has against an opposing party. o Rule 21court can sever misjoined claims and add/drop parties whenever it wants. o Rule 42court can try issues, claims, etc. in separate trials to prevent jury confusion. o Counterclaims (D v. P)Compulsory (13(a)use or lose)=same T/O (logical relationship to the underlying claim)(it will always be heard under Supp J). Permissive (13(b)may bring but not required)=different T/O.(may be brought in if it has independent basis for SMJ, Supp. J never applies) o Cross claims (D v. D/P v. P)13(g)=same T/O. All cross claims are PERMISSIVE. (never going to have independent claim. Never have to worry about destroying diversity. Will need Supp J to apply: all you need to check is if is from the same T/O or common nucleus) Joinder of PartiesNote: 1367(b) takes away Supp Jurisdiction from some attempts at joinder. See p. 2! o Permissive Joinder (Rule 20)ONLY Ps can use RULE 20!! (1) same T/Oare all Ps /Ds claims sufficiently logically related to have them in one case?, (2) is there a question of law or fact COMMON to ALL Ps and Ds? o Required Joinder (Rule 19) Parties must be joined if: in that persons absence court cannot accord complete relief among the parties; OR, persons absence will impair his ability to protect his claimed interest in the subject matter of suit; OR persons absence will leave an existing party subject to a substantial risk of multiple or otherwise inconsistent obligations. If parties cannot be joined (b/c, e.g., destroys diversity, no PJ, improper venue): court will balance factors to decide whether to proceed or dismiss: Extent to which persons absence hurts that person or existing parties; Extent to which court can craft a method to limit prejudice; Whether court can give P an adequate remedy in the absence of the person; Whether P would have adequate remedy if court insisted on persons presence (nonjoinder) Provident Tradesman (absent policy holder is not indispensible but he can Rule 24 himself in if he wants), Republic of Philippines (big foreign claimant cant get into this interpleader suit. Court says they are indispensiblesee p. 703 of book). NOTE: In a diversity case, where adding an indispensible party will destroy diversity but D could add the P by asserting a 13(h) compulsory counterclaim then D must do that. There must already be a counterclaim or crossclaim against an existing party for a D to use 13(h) to add a party. o Additional Parties to a Counterclaim or Cross Claim (Rule 13(g))Rules 19 and 20 govern. ImpleaderThird Party Claim (3PP v. 3PD)Rule 14when a 3rd party may be liable for all or part of clam. Can only be for CONTRIBUTION. Both D and P can assert. Intervention (Rule 24)consider: will unduly delay or prejudice the adjudication of the original parties rights? Does the intervening party have some special expertise or perspective? Will refusal to allow intervention lead to further litigation on some issue? 24(a)- Mandatory (all parties with a serious interest must be added) 24(b) - Permissive ( court can allow a party to join if they have an interest in the case. o By rightRule 24(a)(1) is the motion timely? (2) (a) unconditional right to intervene under fed statute? OR (b) (i)does he claim an interest relating to a transaction or property that may be impaired if not allowed to participate AND (ii) is the interest inadequately represented? 9

NOTE:19(a)(1)(b)(i) provide that a person should be made a party if feasible. Rule 24(2) entitles such a person to take the initiative to intervene. 19(a) has to do with dismissing cases. 24(a)(2) has to do with expanding them. Smuck standard for interest: very broad. More a pre-req than a determinative criterion for intervention. (cf., interest in Rule 19 is construed MUCH more narrowly). Disputed question among the circuits what to do if a party does not appeal (parents intervention in DC School Board caseSmuck) o PermissiveRule 24(b)(1) is the motion timely? (2) (a) conditional right by statute? OR (b) does claim or defenses share with the main action a common question of law or fact.? Mass Actions - Interpleader o Statutory (1335)SMJ (Diversity btw two or more claimants with $500 amount in controversy)stakeholders citizenship doesnt matter unless hes a claimant); PJ: nationwide service); Venue (1397: any district with a claimant); Injunction (to deter any future claims against stakeholder) of other actions is authorized; Bond is required. Action doesnt need to arise out of a common origin. o Rule 22 SMJ (complete diversity reqd between stakeholder (P) and claimants (D) and amount in controversy must exceed 75K); ordinary PJ (start with the long arm); Venue (ordinary venue statute 1391); Injunction (may be used to protect jurisdiction); Bond (not reqd but courts always order). - Class Actions o Actions brought on behalf of or against a class of people. o Three requirements: Preamble requirements There must be a classex ante precise, objective, and presently ascertainable traits that court can ID Representative must be a member of the class (e.g., do same policies apply to transfer students as they do to incoming students?) 23(a)Class Action Pre-requisites (1+2=the whole class; 3+4=class rep) NumerosityUnder 25 is never so numerous, over 40 numerous enough. 2540=gray area (based on how hard it will be join bc of claim sizes and how widely ranging in locale the potential class members are) Commonalitywill differences in the factual background affect the outcome of the legal issues? must be common question of law or fact that will affect all class members. Essential to recovery. (usually a liberal standard) Typicalityare the claims of the named P and the class Ps so interrelated that interests of the class members will be fairly and adequately protected in their absence?(Falconnamed P discriminated against in promotion, class discrimated against in hiring. Sup. Ct. says thats not typical enough) Adequacyare the named P and his lawyer adequate to represent the interests of the class? Sufficient experience? Conflicts? Do they have a real stake in the game? (If the claims range from $100 to $1 million, the $100 class member shouldnt be rep). o PLSRAsecurities fraudparty harmed the most will be lead P. Lgest. Financial interest. Types(b)(1) and (b)(2) are mandatory classes. (b)(3) class members can opt out. 23(b)(1)Prejudice class(A) risk of creating inconsistent obligations for D; (B) common fundpot of money and you dont want early Ps to deplete the fund. 23(b)(2)Injunction and declaratory relief (no reqt that the conduct be damaging to every class member). o Hansberryprior judgments cannot bind a subsequent P who was not adequately represented. 23(b)(3)other Damages. Two requirements: 10

o o

o Predominance (commonality stronger than 23(a))common questions must predominate!! relative weight of common questions as a legal or factual matter as compared to the questions affecting only individual members (e.g., how variations in state law may make legal questions very differenthow similar are these laws?) o Superiorityclass action is a better way to handle the case than the other methods available. (comes into play in jury rights, immature torts. consider: (1) the cost, (2) the availability of other methods, (3) the availability of state courts, (4) whether the tort is ripe). o Four Factors to Run Through for both Predominance and Superiority: Class members interests in individually controlling separate actions Whats the extent and nature of litigation already begun? Is it desirable to concentrate the litigation of claims in one forum? What are the likely difficulties in managing the class action? NOTICE: 23(b)(1) and (2)court may direct appropriate notice 23(b)(3)court must direct best notice that is practicable, inc. individual notice to all members who can be identified. (see 23(c)(2)(B) for reqts). Constitutional adequacy: Two determinations of adequacy beginning of the trial (ex antetheoretical representation) and at the end of the trial (ex postwere absent parties actually adequately represented?) (Gonzalez) Subject Matter Jurisdiction: Diversity: only the citizenship of the named Ps are relevant (Supreme Tribe of Ben Hur) and only one claim must be over 75K (Zahn). FQ: same as normal. CAFA: Min. Diversity and 5 M total aggregated amount. Personal Jurisdiction: Generally we only run the PJ analysis on Ds. Phillips Petroleum court said that class members do not have to waive PJ (by opting in to a suit). Their due process rights are protected here by the requirement of adequacy and by the courts who certify the class to begin with. Venue: Ordinary 1391 analysis. Look toward Reps domicile. Settlement: 23(e) Court must approve. 23(a) and (b) will be test more searchingly. Dont have to inquire into manageability though. Settlement can affect the superiority analysis but not predominance.

DISCOVERY

Discovery Prior to Commencing SuitRule 27Depo to Perpetuate Testimony (use to save testimony if someone is on deaths door, not to acquire infoIn Re Sheila Roberts Ford; In Re Alpha Industries thinks perpetuate means acquire). Thought: make it totally discretionary. Something for Congress to do. Scope of DiscoveryRule 26(b) (1) is the discovery relevant to any partys claim or defense? If NO then court must give permission (2) is the requested material nonprivileged? (3) is it governed by a protective order? o For good cause and by court order, party can discover material relevant to the subject matter involved in the action. o Limited by: (1) (26(b)(2)(C)) burden or expensecourts have discretion to shape frequency and extent of discovery if it finds it is too burdensome (2) no trial prep materials (see below); and (3) 26 (c) protective orders can define form of discovery or give protective order that prevent discovery. bc of annoyance, embarrassment, burden, or expense (order shaping and directing manner of discovery with respect to that individual). Court has broad power to limit discovery requests or to shape them in such a way as to protect parties from harassment (Marresesurgeon casecourt may order in camera review, redaction, non-sensitive discovery first). Parties have less power to order lots of discovery when the amount-in-controversy is low. Court will weigh burden/expense against its likely benefit considering (1) the needs of the case, (2)the amount in controversy, (3) the parties resources, (4) the 11

importance of the issues at stake, and (5) the importance of discovery in solving these issues. Rule 26(d)Court has almost unlimited power to arrange the timing and sequencing of discovery to organize costs. o Privileged Materials(1) Is the material work product? If, so can you demonstrate substantial need for it? (2) Is the material an attorney-client communication? If so, has the privilege been waived (e.g., by talking about it with others)? Work Product: docs or tangible items prepared in anticipation of litigation or for trial by or for a party or its representative. Hotly contested: in anticipation for litigation: o (1) Was the individual document prepared with the actual belief you were going to be sued? (doesnt have to be specific litigation, just has to be related to some suit, and you dont have to know who the party is who is going to sue you) (2) Was that belief reasonable? Generally NOT discoverable o BUT they may be discoverable if 26 b3 (1) relevant to a claim or defense AND (2) if party shows it has substantial need and that equivalent info cant be obtained without hardship Even if both of these are met, court must protect from disclosure the mental impressions, legal theories, opinions, and conclusions of partys attorney or representative. Sneadpictures insurance company took right after an accident are not discoverable because P doesnt have substantial need (they could acquire the relevant info by other meansby remembering!) Attorney-Client Privilege (NEVER DISCOVERABLE UNLESS WAIVED): (1) the asserted holder of the privilege is or sought to be a client; (2) the person to whom the communication was made is (a) a lawyer or his subordinate AND (b) acting as a lawyer with respect to the communication; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily (i) either an opinion on law OR (ii)legal services OR (iii) assistance in some legal proceeding, AND NOT (d) for the purpose of committing a crime or tort; AND (4) the privileged has been (a) claimed AND (b) NOT waived by the client. Corporations: communications between counsel and ALL corporate employees with respect to litigation/legal services is privileged. Counsel must make clear that he represents the interests of the corporation exclusively. (Upjohn, p.915 for factors) Between privilege and work product: Expert Testimony: cant depose an expert for the purpose of obtaining attorneys work product or mental impressions. Attorneys notes are not privileges. IF attorney product is shared with an expert it is NOT discoverable because its covered by attorney work product doctrine. Mandatory DiscoveryRule 26(a)14 days post scheduling conf. this must be constantly updated. o Initial Disclosures26(a)(1)(A) (1) ID people with discoverable info, (2) ID evidence you may use, (3) computation of damages, (4) insurance agreements. Cummingsnot required to disclose materials you are not going to use at trial, even if it will help prove the other sides case. o Expert Disclosures26(a)(2)(1) ID expert, (2) provide expert report. o Pretrial Disclosures26(a)(3)ID witnesses, depos, and docs you will use at trial. Methods of DiscoveryDepos(30), Interrogatories (33), Requests for Production (34), Admissions (36) o Depos: Rule 30may schedule up to 10 (7 hours a piece) and must ask for leave to schedule more. You can ask about anything (even things inadmissible at trial) except for privileged materials. Depo of a nonparty: must get a Rule 45 supoena to compel. 12

Governed by Rule 26 relevance (PolycastCourt orders a depo from a guy who complains that his depo is duplicative/not important). o Interrogatories: Rule 33limit is 25 rogs (unless leave is given) within 30days of service. Scope=relevance to claim/defense. Often about relationship btw law and fact. The rule that you must search and get information is strictly enforced. Corporations must gather info from employees/former employees if they are under its control. (In Re Auction Housesformer employee under contract must be compelled to cooperate either by suing employee for breach or ceasing his compensation). Contention Interrogatories Answering parties need to lay our legal theories and facts to back it up. Forces party to lay out their legal theories. Usually requested on the eve of trial. Need special permission to get early (In Re Convergent Technologies). o Requests for Production: permits inspection or copy of docs, ESI, tangible thing, or property. Parties must produce docs as they are kept in usual course of business unless otherwise specified (34(b)(2)(E)). Must specify reasonable time to remand information. ESIProblem with searching through and providing back up material that is not easily accessible. Burden is on the responding party to apply for cost-shifting. Where the cost is extreme and where it seems like the requesting party is just trying to raise the responding partys costs, we may consider cost shifting (Zubulake). Factors: (1) extent to which request is specifically tailed to discover relevant info; (2) availability of such info from other sources, (3) total cost of production, compared to the amount in controversy, (4) total cost of production compared to resources available to each party; (5) relative ability of each party to control cost and its incentive to do so; (6) importance of the issues at stake in the litigation, (7) relative benefits to the parties of obtaining the info. Sanctions: Rule 37(a) motion to compel, (b) sanctions for failure to comply (discretionarythe court may. Gross negligence warrants most severe sanctions (Cineincentivize parties to police attorneys). Supreme Court has twice prodded the District Courts to use more discovery sanctions (in NHL v. Metro Hockey and Roadway Express v. Piper) but courts have been hesitant because it would require more policing in the discovery stage. Summary JudgmentMoving party says that facts are so conclusive that there is no reason to have trial o No genuine issue of material facts and entitled to judgment as a matter of law. Genuine issue of fact=actually disputed issue factual Material fact=a fact that goes to one of the elements of the case. o All facts must be in the light more favorable to the non moving party and still find no genuine issue of material fact (Anderson) o In determining whether a dispute is genuine, judge should consider whether a reasonable juror could return a verdict in favor of the nonmoving party in light of the relevant evidentiary standard (Anderson). o Two components: (1) burden of persuasion (proof - always on the moving party); (2) burden of production (shifts if moving party meets it). 2 different scenarios: Less likely scenario: If burden of persuasion at trial would be on the moving party (generally, if the movant is P or if the movant is trying to prove a dispositive defense) then the movant must support his motion with credible evidence (56(c)) that would entitle him to judgment as a matter of law at trial. More likely scenario: if burden of persuasion at trial would be on the nonmoving party (generally then if D was the movant), then moving party can either (1) submit evidence that negates an essential element of the other partys claim (e.g., you say I dropped a rock on your head but hears evidence I never touched a rock) OR (2) may demonstrate that the other party has no evidence by pointing to such a lack of evidence on the record. (Celotex) o Once the burden shifts the nonmoving party cannot rest on his contrary allegations but must produce his own evidence to avoid summary judgment. 13

DISPOSITIVE PROCEDURE (motions that can end a case)

o Affidavits must be from personal knowledge. Conjecture that someone might be lying generally not enough (Lundeen) when the person has no motive to lie, but maybe enough if the person has a motive to lie and he has not been cross-examined (Cross: romantic languages teacher). o Scottvideotape evidence was enough to meet burden of production and burden of persuasion for a party who bore the burden of proof at trial (qualified sovereign immunity defense). Judgment as a Matter of LawRule 50BEFORE JURY when a court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on a particular issue. Test: reasonable jury would not have a legally sufficient evidentiary basis to find for the party o Motion must be made before submitted to a jury and may be renewed after jury verdict. Judgment non withstanding a verdict AFTER THE JURY HAS DECIDED o Public Policy: It doesnt strip party of their jury rights. In essence: Jury is still deliberating on it. 7th amendment doesnt define the procedural aspects of the jury trial, just its most fundamental elements. Directed verdict is just a procedural rights. They are still waiving if a reasonable jury would find in ones favor. o However, in order to move for j.n.o.v., the movant must have moved for a JMOL before the verdict as well. This procedural quirk is necessary because it is considered a violation of the 7th amendment for a judge to overturn a jury verdict. Instead, the judge is said in a j.n.o.v. to be reexamining not the verdict, but his previous rejection of JMOL. Default JudgmentRule 55if you dont plead/answer, you lose (not DJ if you answer then dont show up: then its judgment on the merits Ex. Coulas v. Smith. ). Rule 60relief from DJ for good reasonprobably will be granted. 7th Amendment: In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. BASICALLYYou have a jury right in ANY CASE in which you would have had a jury right in 1791. o Cases at Law: right to jury trial Questions of Factfor jury Questions of Lawfor judges o Cases in Equity: no right to jury trial. Injunctions and Declaratory Judgments (have a court declare law on the subject before harm ensues) Mixed cases of Law and Equity=jury right. (1) Court will grant prelim injunction (if applicable), (2) jury will decide the legal issue, (3) court will decide the equitable issue (free to grant injunction on anything that was not necessary to jurys decisionBeacon Theatres). Artful pleading wont work (Dairy Queen). New Legal Proceduree.g., Derivative suitsis it legal in nature? JURY RIGHT! New Claims Two part test: (1) Compare the statutory action to the 18th century actions brought in England prior to the merger of law and equity. Based on this comparison, is it more equitable or more legal? (fiduciary and trust=equitable); (2) Is the remedy P seeks more legal or more equitable? (most important) (Chauffeurs). Claim Preclusion(true res judicata) Rule of law that final judgment by the court precludes subsequent litigation between the same parties regarding the same cause of action or the same issue of fact. what you should have brought. When something should have been brought in another suit it is precluded. Only final, valid, on the merits decisions have preclusive effect. o Was the judgment about the same set of facts AND against the same party or parties in privity with them? (Mathewsfirst suit against NYRA employees, second suit against NYRA). o (1)Was the judgment final? (2) Was it valid? (3) Was it on the merits Were the identical parties and claim properly considered to be included in the first suit? o Parties are bound by RJ, even if the underlying basis for the decision has been overruled (Moitie). 14

TRIAL BY JURY

CLAIM PRECLUSION/ISSUE PRECLUSION

Exceptions: If you sue for initial injuries and cant prove latent injuries, you can come back and sue for latent injuries. Also, if abuse was the subject of a divorce case, RJ will not prevent you from pursuing a later claim of assault against an abusive spouse. o Defensive PreclusionThings that D should have brought (e.g., compulsory counterclaim, failure to challenge PJ). Most states have compulsory counterclaim rules. If D is not reqd to bring the suit under compulsory counterclaim rule (same T/O), then he is only precluded from bringing a new suit if winning the counterclaim would nullify the initial judgment. (Linderman1st case, L sues H to make him pay for an appliance H bought. H raises the defense that there was false representation. H then sues L for fraud and seeks recovery for the extra expenses of delivery and repair. Court says this will not nullify the first suit so its okay). BUT Mitchell1st suit, Bank sues M, M wins and court says M doesnt owe bank money. 2nd suit M sues Bank and claims bank owes him $9K. Hes claim precluded there because he should have brought it up in the first suit and furthermore, this suit would nullify the 1st judgment. o Class ActionsClass action individual/discrimination or latent injures can be brought separately. Party not bound to class action judgment can bring separate suit. (Ex. Cooper, just because an ind cannot win in the broad class action suit, does not bar his ability to win on individual discrimination in a 2nd suit. Issue preclusion (collateral estoppel)what you have brought. Different facts but the legal ruling from the 1st case can be applied to the 2nd case. o Elements (1) Is it the same issue? (e.g., Cromwellwhether P was a bona fide purchaser of these bonds is a separate from whether he was a bona fide purchaser of this other set of bonds? OR an corporate officer punches you in the face on Monday and then steals your wallet on Friday. The decision in the first suit about the officers relationship to his employer may be applied to the second suit is the same issue and may be applied in the second suit) (2) Was it actually litigated? (a party must bring up an issue, the other party must dispute it, and the court must decideso something that was actually argued NOT something that could have been argued) (3) Was it necessarily decided in a previous suit? (e.g., your neighbors kid drowns and she sues you, alleging two grounds for your negligence: that your pool was too deep AND that you should have had a railing. Jury comes back and says NEGLIGENT! There could be no IP concerning the depth of your pool because we dont know which issue gave rise to the verdict of negligence. (4) Was it final? Procedurally decided things are not preclusive. o Recurring Issues (e.g., with taxesmoney continues to flow over different tax years)when the underlying law changes, the relationship between law and fact in a separate occurrence can change. (Sunnen). o Mutualityold requirement that has since expanded to non-mutual=use of IP by parties who were not parties to the initial judgment they seek to invoke. Non-Mutual Defensive Collateral Estoppelwhen a former judgment on an issue is raised as a DEFENSE by a D who was not a party to the judgment he is invoking (e.g., where Anne sues Bob and Anne loses, and then Anne tries to sue Carl. Carl raises the issue from trial between Anne and Bob). The party AGAINST whom collateral estoppel is asserted must have had a full and fair ability to litigate that case (e.g., Anne must have had a full and fair ability to litigate that issue against Bob for Carl to be able to raise it against AnneAnne actually tried really hard in the first suit. She didnt neglect it because it was over $5 or something like that)Blonder-Tongue. Do not have to prove that they arent behaving strategically! Three part test: (1) was the issue decided in the earlier litigation identical to the issue in question? (2) was there a final J on the issue? (3) was the party AGAINST whom

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the plea is asserted a party in privity with a party to the earlier litigation? (3) did P have full and fair opportunity to litigate? Non-Mutual Offensive Collateral EstoppelAnne sues Bob, Bob loses on issue then Carl sues Bob and wants to assert collateral estoppel on that issue. A court can allow this in their discretion but its largely disfavored. P (Carl) would have to show o It could not join/intervene in the 1st action (not strategically waiting) o D(Bob) had enough incentive to defend itself in the first case D (Bob) foresee multiple suits? In yes, then they can sue again. Fairness issue. A party seeking to assert (e.g., Carl) is not using strategic gamesmanship here (e.g., they arent trying to piggyback on this former ruling to avoid legal fees but because they couldnt be joinedParklane). Hypo: Train accident happens and injures 100 people. 25 people sue and lose. The 26th person sues and wins. Can the 27th person sue and say, non-mutual collateral estoppel!!!! When you are talking about courts of the same type, they will probably consider win ratios but to the extent that the first 25 suits are filed in small claims court then that might matter. So Courts do take win ratios into account but they are not determinative. o Equity v. Law: A prior equitable determination CAN preclude subsequent legal claims if the court thinks its a good idea. Binding non-parties: Rule: only parties that appear can be held to judgment, however there is a virtual representation exception. o Virtual RepresentationIs there a VR exception to hold this party to a judgment when it didnt appear in court?
Control: (Guardian- minor), (contractor- sub contractor) (employer employee) Ex. Parent and child in a car crash, Parent can bring suit on behalf of the child however CANNOT bring a separate suit for the same issue for himself. Class Action: Taylor v. Sturgull: 2nd guy bringing in the suit for the same issue, VR wont work here because it was NOT a established (certified) class action.

CONFLICTS OF LAW

ONLY APPLIES TO DIVERSITY JURISDICTION!!

Do you have 1 state rule and 1 judge made rule? If YES then do a ERIE test. o Is the judge made rule substantive? If YES? Use STATE rule. o If the Judge made rule is procedural? Do ERIE test Twin Aims Outcome determinative Federal interest test. Then ask? Do these tests negatively affect substantive state laws? If YES Apply state laws If NO Apply judge made procedural rule. Do you have 1state and 1 judge made? If NO, then ask are the laws statutes or rules. o Does the Fed Statute conflict with State statute? If NO then apply Fed Statute If YES? If the Fed Statute constitutional IF NO? then apply state statute. IF YES? Apply federal statute. o Do you have 1 State law and 1 Federal Law? Then ask if there are statutes of rules? If its if a rule Does Federal Rule and State rule conflict? If NO apply Federal rule?

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If YES does the Federal Rule comply with Rules Enabling Act(rule may not abridge, enlarge, or modify any substantive right: No law has ever violated REA)? If YES then apply Fed Rule? If NO then apply state Rule

Substantive LawLaws that affect primary behavior (e.g., your behavior outside of a courtroom). - Rules of Decision Act: 28 USC 1652The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. o When a federal law is in question, federal law applies. (FQ) o Erie: law of several states=state statutory laws and state common law govern in a diversity suit. With respect to substantive matters, state statutory laws and state common law apply in diversity. Procedural LawTo what extent, do state procedural rules apply in federal court? - See Erie Bush - What conflicts with state law? Federal written law (statute or rule) OR federal judge made law o Steward OrganizationIf a forum selection clause was validly signed look to: (2 answers) 3rd and 8th Circuit: state substantive law (its an Erie question!) Other courts say look to federal law because it concerns the interpretation of a federal statute (1404) o Forum non conveniens (if state does not recognize)its a federal judge made law. All courts that have gone this route have found that federal law applies. If the effect on forum shopping isnt too dramatic then well apply federal law. - Outcome determinative o York(adopted by Ginsburg in Gasperini) if procedural rule is going to affect the outcome, you should apply the state rule. o Scalia (Gasperini)it means affect peoples behaviors. - Conflict o Hannadoes fed rule allow you to do something that state law does not allow? o WallkerDetermining whether there is a conflict: Read more narrowly when the policy seems more substantial (e.g., SOL is really important. Policy=we want parties to be able to repose and not have to hang out in limbo), and less narrowly when it just seems like paperwork. o GasperiniGinsburg splits the rule into two parts to avoid conflict with state law. State law, here, was more substantive and had more of an effect on behavior. o Ginsburg wants to read any rule in whatever way she can to avoid conflict with state law. - Erie Twin Aims (from Hanna): (1) prevention of forum shopping, (2) equitable adjudication of the laws. o HannaState service rules v. federal service rules (1) forum shoppingP wasnt presented with a situation in which application of state rule would wholly bar recovery; rather, adherence to state rule would have resulted only in altering the way in which process was served. (2) equitable administration of the lawsdoesnt alter the enforcement of state created rights in a substantial fashion. o WalkerSOL case concerning Rule 3 (1) forum shoppingP knew he would def lose in the state, but he had a chance in federal court. (2) equitable administration of the lawscreates conflicting codes of behavior (D has a right to repose and no right to repose at the same time). - Is the statute constitutional1404 (comes from Article III and necessary and proper clause) - Rules Enabling Act: 28 USC 2072 Such rules shall not abridge, enlarge, or modify any substantive right. Federal Common LawIs this a federal common law topic? - Interstate disputes (Disputes between Virginia and Maryland) - Admiralty - Customary International Law (things that govern foreign affairs) - Government contracts/torts
APPELLATE REVIEW

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Final Judgment Rule: 28 USC 1291Generally, you cant appeal until the case is over. o EXCEPTIONS: Interlocutory Appeals 28 USC 1292(a)judgments about injunctions 28 USC 1292(b)district court can enter a 1292(b) opinion and the COA has an option to hear it. (i.e., its like the judge saying, this is a really tough issue, court of appeals, take a look at it if you want.) Must apply with the procedure! Class Certification (23(f))there can be an immediate appeal on a judges decision whether or not to certify a class. COA MAY permit. Writ of MandamusWithout district court approval, you can appeal a court decision. These are very rare, but they allow circuit court to step in when the district court has done something that is so grossly awful that they are going to force an appeal. (Gillispie and La Buy) Rule 54(b)where there are multiple claims, the district court can expressly decide that a decision on one claim is final and appealable. o District court have broad discretion to determine whether a claim is severable so that it can be appealed separately (Sears and Curtiss-Wright) Standard of ReviewIssues of fact (abuse of discretion), issues of law (de novo).

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