Professional Documents
Culture Documents
FRCP 4: Servicep. 10
FRCP 7(a): Pleadings Allowedp. 5, 13
FRCP 8: General Rules of Pleadings (short and plain) p. 5, 10, 11
FRCP 9(b): Fraud/Mistake (particularity) p. 5, 8, 9
FRCP 10: Form of Pleadingsp. 5
FRCP 11: Signing Documents/Sanctionsp. 7, 8, 19
FRCP 13: Counterclaim/Cross-claimp. 12, 13, 25
FRCP 14: Third Party Servicep. 3, 25, 26
FRCP 15 (a)(c): Amendments Before Trial/Relation-backp. 11, 13, 14, 15
FRCP 18(a): Joinder of Claims
FRCP 19: Required Joinder of Partiesp. 4, 10, 26, 27
FRCP 20: Permissive Joinder of Partiesp. 25
FRCP 21: Misjoinder/Non-joinder of Parties
FRCP 22: Rule Interpleader (see 1335 for Statutory Interpleader) p. 28
FRCP 23: Class Actionsp. 4, 28, 29, 30
FRCP 24: Interventionp. 4, 27
FRCP 26: Discovery (Duty to Disclose) p. 15, 16, 17, 19
FRCP 30: Depositions (Oral Examination) p. 17, 18
FRCP 33: Interrogatoriesp. 17
FRCP 34: Production Documents/Informationp. 18
FRCP 35: Physical/Mental Examinationsp. 18
FRCP 36: Requests for Admissionp. 18
FRCP 50: Judgment As A Matter Of Lawp. 22, 23
FRCP 52: Findings and Conclusions by the Court/Judgment on Partial Findingsp. 24, 25
FRCP 54(b): Judgment on Multiple Claims Involving Multiple Partiesp. 24
FRCP 55: Default Judgmentp. 10
FRCP 56: Summary Judgmentp. 20, 21
FRCP 59: New Trial/Altering or Amending Judgmentp.23
U.S. Const. Art. III 1, 2: gives court jurisdiction over casesnot merely claims (a case comprises all claims
arising from a common nucleus p. 2
U.S. Const. Art. IV 1: Full Faith & Creditp. 35
U.S. Const. Amend. XIV 1: Due Process
I. SUBJECT MATTER JURISDICTION of the Federal Courts (State courts have general jurisdiction over most claims)
A. Generally
1. Need Personal Jurisdiction + Subject Matter Jurisdiction + Due Process (notice)
-personal jurisdiction: limits state/federal courts from trying D that lacks connection with the forum state
-SMJ: limits courts by determining which issues are heard by state, federal or both
2. Const. Art III 2 broadest limits on cases heard in Fed Crt (Congress has power to narrow, but not broaden)
3. Burden rests on party asserting claim
4. No time limit on objecting to Fed SMJ, can object anytime during lifetime of the trial
B. Federal Question Jurisdiction
1. (28 USC 1331) Fed Jurisdiction: all civil actions arising under the Const., laws or treaties of the U.S.
-gives fed. Courts SMJ regardless of amount in controversy
-in rare instances, can reach for Fed Q. when state law claims implicate significant federal issues
-3 requirements before a Fed Q may be found embedded in a state law case:
(1) involves a substantial question of federal law
(2) is framed in terms of state law
(3) requires interpretation of federal law to resolve the case
2. Well-pleaded complaint Rule: SMJ is established only when Ps statement of his own COA shows that it is
based upon those laws or the Constitution
a. TEST: When claim arises under:
(1) if the Constitution/Federal Statutes/Treaties creates the right OR
(2) when the law is a necessary element of a claim
b. Louisville & Nashville RR v. Mottley (1908) CB p. 197
-FACTS: D took away Ps free pass after Congress passed law against free passes anticipates Ds fed
law defense then invalidates def. w/ Constitutional 5th amend (due process) claim
-HOLDING: No Fed Qmust be part of Ps complaint; cannot anticipate Ds defense to raise Fed Q
3. Federal question jurisdiction is concurrent (can be filed in fed. and state court)
-if state law creates COA dependent on analysis of some federal issue, we usually deny SMJ
-ex. state tort negligence claim for improperly labeled food includes issues of FDA statute
-where fed law that forms element of state-law claim does not itself give rise to private right of action
no fed question jurisdiction over state law claim
C. Diversity Jurisdiction
1. 28 USC 1332: gives federal court SMJ based on citizenship of the parties when:
a. over $75K (good faith amount in controversy) AND the following:
b. (1) CNY v. CCA;
(2) CUSA v. A;
(3) CNY+A v. CCA+A;
(4) Foreign state (must be P) v. CUSA
***diversity must be determined at the commencement of the action
***in #3, does not matter if aliens are from the same country
c. Const. Art III 2 no $75 K limit; no mention of A v. A
d. abstention: If case involves important or novel state law issues, a federal court may abstain in order to give
the state court a chance to resolve the issue
2. Amount in Controversy must exceed $75K (excludes interest & court costs) (1332(a))
a. should a court determine during the course of trial that 75k will not be met, court does not lose jurisdiction
b. amount in controversy can be satisfied even if P seeks only nonmonetary relief (court just needs to place
value on the relief)
c. legal certainty rule: amount alleged in complaint controls unless it appears to be a legal certainty that
the P will recover less than 75k
d. aggregation
(1) Single P can aggregate very dissimilar claims against single D (R18(a) joinder of claims)
(2) Multiple parties can aggregate claims if:
-if 1 P meets amount, additional Ps can join claims (based on supp. jurisdiction)
-if no single P meets amount, aggregation is not allowed
e. past due interest is included (the interest referred to in 1332 does not include interest owed pursuant to
an agreement of the parties )
3. Citizenship of Individuals
a. Redner v Sanders (2000) CB. 207 (incomplete diversity)
-FACTS: DNY; P resides in France but was raised/educated and practices in CA
-HOLDING: a person is a citizen of the state in which he or she is domiciled.
b. Citizenship = US Citizen + Domicile
c. Domicile = Usual and permanent abode + Intent to remain
-Individuals can only have one domicile
-Domicile is determined at start of litigation (even if P or D later moves)
-Rep. of minor/incompetent/deceased has same citizenship of one representing them (1332(c)(2))
d. 28 USC 1332(a)(4) resident (permanent) aliens is deemed a citizen of the state in which he resides
(1) Provision is meant to restrict diversity jurisdiction, not to expand it
(a) Limited to situations where other side is citizen of state (so stay in state crt)
1) ex. citizen of NY v. citizen of Canada permanent resident status in NY = State crt
(b) Also constitutional problem cannot have Alien v. Alien
(2) Arguments that there should be jurisdiction here
(a) Plain reading of statute maybe Congress did intend to expand jurisdiction
(b) Diversity rule meant to protect from bias against out-of-staters
4. Citizenship of Corporations (1332(c)(1))
a. Can have multiple citizenships (in class, Spillenger said up to dual-citizenship):
(1) State where it is incorporated (usually just one state)
(2) Principle place of business (only one)
-Corporations nerve center where high level executives make decisions (usually HQ)
-Corporations muscle center where business activities occur
-nerve center is binding for citizenship, NOT muscle center
(3) To satisfy complete diversity, opposing party must be diverse from ALL of Corp.s citizenships.
b. partnerships has citizenship of each of its partners
5. Complete diversity rule: no P can be citizen of the same state as any D
-28 USC 1332(a)(3) exception in case involving aliens (resident but does not have citizenship)
(1) creates special rule for cases involving both citizens of U.S. states and foreign citizens
(2) complete diversity requirement still exists among U.S. parties but not alien parties
-ex. P1 = CA, P2 = China; D1= MA; D2 = China (diversity satisfied)
-ex. no diversity for A1+C1 v. A2 (its constitutional, but Congress has not allowed it)
-Neither Art. III nor 1332 allows federal court to hear case that involves only aliens, even if they are
from different nations
D. Supplemental Jurisdiction (pendant; ancillary)
1. Purpose judicial economy, efficiency, convenience
2. Supplemental Jurisdiction is possible only when at least one claim independently qualifies for federal SMJ
under some statute other than 28 USC 1367 (federal claim)
3. 28 USC 1367 2 Step Process:
(1) determine if state and federal claims have a sufficient factual relationship to qualify
(2) if relationship exists, supplemental jurisdiction can still be precluded by exceptions. See 1367(b) (c)
-if exception applies, court will toss out only the state law claim in question and retain jurisdiction
over remaining claims
-unnecessary to consider supp. jurisdiction if single P + single D b/c if P has one claim that can
make it to fed. court, all other claims are aggregated even if unrelated under R18 (total amt. of
all claims must be > 75k)
a. 1367(a) Relationship Test
(1) The basic analysis for whether the state and federal claims are sufficiently related is if they form
part of the same case or controversy or common nucleus of operative fact
-if claims involve many of the same parties/evidence, likely to satisfy)
(4) United Mine Workers v. Gibbs (1966) (P asserts jurisdictional proper claim + state law claim)
-HOLDING: Art. III gives federal courts jurisdiction over casesnot merely claims. The court
reasoned that the concept of case was broader than claim; that a case comprises all
claims arising from a common nucleus
b. 1367(b) EXCEPTION when based solely on diversity
(1) Only bars state law claims by plaintiffs against Ds who are made parties under FRCP 14, 19, 20, or
24, as well as claims made by parties who intervene as plaintiffs under FRCP 24 or who joined as
involuntary plaintiffs under FRCP 19
(2) Exxon Mobil Corp. v. Allapattah Servs. (2005) (handout)
-HOLDING: can use supp. jurisdiction to remedy amount in controversy issues, but it cannot be used
when there is incomplete diversity
-NOTE: claims by multiple Ps not barred by 1367(b) b/c the Ps joined voluntarily rather than being
joined as required by 1367(b)
c. 1367(c) give Fed Courts discretion to decline supp. jurisdiction if:
(1) Claim raises state law
(2) that is raises novel or complex issue of state law OR
(2) state law claim substantially dominates over claim fed court has original jurisdiction over
-could be measured by money, time/effort for court, quantity of state vs. fed. claims
-Szedrey-Ramos v. First Bancourp (2007) p. 226
-HOLDING: found that the state law claims predominated over the federal claims b/c P
brought a number of complex state claims which required extensive analysis
(3) District court dismissed all claims it had original jurisdiction over
(4) Other compelling reasons/exceptional circumstances
d. 1367(d) statute of limitations is tolled while the case is in fed. court if court dismisses claim, 1367(d)
affords P the chance to refile dismissed claim in state court
E. Removal (1441, 1446, 1447 )
1. Generally any action brought in state court that the P that could have been brought in federal court originally
may be removed to federal court by D
2. Only D can remove (P defending counterclaim may not remove); only from state court federal court
(1) 1441(a) removal only to fed court in district where action is pending
(b) when SMJ is satisfied solely no diversity, cannot remove if any D is on home turf (even
if complete diversity) b/c no bias
exceptions:
1. If case based on Fed Q, D may remove regardless of citizenship/home turf
2. Class actions
3. If P does not object to removal
(f) federal crt. that receives removal can review claims that state crt. did not have juris. over
**case must be removed as a WHOLE
**if multiple Ds, ALL have to join removal to be successful
(2) 1446 Procedure for removal
(a) Short and plain statement describing grounds for removal
(b) Filed w/in 30 days after notice that removal is possible (ex: dismissal of non-diverse D)
**Exception no removal based on div ctznsp 1 yr after commencement of action
**Multiple Ds 30 day begins for each D when that D is served; Ds whose 30 day period has
run dry can still join a removal claim made by other D
(3) 1447 Challenging removal
(c) Multiple claims
-Motion to remand must be made within 30 days of filing of notice of removal
-Case lacking SMJ can be remanded at any time (if state claim dominates)
(e) After removal, P joins new Ds to destroy SMJ (div) (crt may deny joinder or remand to state crt)
3. NOTE: removal is based on original Ps pleadings (thus, if Ps claim is for 60k in damages even though actual
injury is worth over 75k, D cannot remove b/c it fails amount in controversy)
----------------------------------------------------------PHASES OF A LAWSUIT------------------------------------------------------
II. PLEADING a pleading is the means by which the parties advise the court and each other of the claims and defenses
they plan to assert at trial
A. Complaint consists of factual allegations (not necessary true)
1. Essential Elements of a complaint:
i. short and plain statement of the grounds upon which the courts jurisdiction depends
ii. short and plain statement of the claim showing that pleader is entitled to relief
iii. demand for relief the pleader seeks
2. Gillispie v. Goodyear Service Stores (1963) (handout)
-HOLDING: complaint must allege material facts upon which Ps right of action is based when a
complaint is merely conclusory it fails to state a COA and is dismissible
-Need allegations that, if true, give rise to inferences to elements of cause of action
2. Elements of Cause of Action (FRCP 7, FRCP 8, FRCP 10)
(1) Complaint must allege facts for every element of the cause of action
(2) FRCP 7(a) details what pleadings are allowed (all other issues are raised by motions)
(a) 1.complaint; 2.answer; 3.reply to counterclaim; 4.answer to cross-claim; 5.third-party
complaint; 6.third-party answer. Crts may order reply to answer/3rd party answer.
(b) complaint: paper filed by P that describes the underlying event and sets out the claim(s)
(c) answer: contains a partys response to all claims, including counterclaims
(d) reply: essentially an answer to another partys answer and only occurs when a court orders it
via FRCP 7(a)(7) OR when Ds answer designates a counterclaim via FRCP 7(a)(3)
(3) FRCP 8 general rules of pleadings
(a) Rule 8(a) short & plain statement (that gives Ds adequate notice) that gives:
1) Basis for SMJ jurisdiction: diversity, Fed Q., supp. (NOTE: PJ need not be alleged)
***if Fed. Q. typically cites the federal statute or constitutional provision involved
***if Diversity state citizenship of parties and specify that amt. in controversy > 75k
***if Supp. indicate the claim in the suit to which the claim in question is supplemental +
specify that the claim forms part of the same Art. III case
2) Claim, if true, entitle P to relief
- satisfy notice pldg obligations enough for D to formulate response
- dont have to give legal theories
- Exception FRCP 9 (pldg with particularity on fraud/mistake issues)
3) Demand for judgment setting out the relief sought
(b) Rule 8(b) D must answer each claim asserted (admit, deny, or deemed deny [dont know])
-Failure to reply deemed as admission to all except amt of damages (Rule 8(d))
(c) Rule 8(c) D has burden to assert new facts/arguments to prove affirmative defenses
-can refuse to answer by claiming privilege (free from self-incrimination- 5th Amend.)
(4) FRCP 10 requires pleadings to fit a basic format
(a) Case Info every pleading must contain a caption
i. name of court
ii. title of action (in re complaints, this includes names of all partiesin subsequent
pleadings only need to state the 1st P and 1st D)
iii. file number
iv. designation for type of pleading
(b) FRCP 10(b) requires parties to divide their claims and defenses into separate paragraphs (rarely
enforced)
(c) FRCP 10(c) allows exhibits (can attach written docs such as contracts)
(5) Haddle v. Garrison (1996) CB 375
-FACTS: Plaintiff Michael A. Haddle appealed a District Courts dismissal of his suit for failure to
state a claim upon which relief could be granted under 12(b)(6).
-HOLDING: Appeals from FRCP 12(b) (6) motions are not reviewable where binding precedent
renders the complaint without legal recourse
(6) Responses to a Complaint:
(a) FCRP 12(b)(6) = so what based on the facts of Ps complaint, no recovery is possible under
Obj (2) warranted by existing law OR by legally non-frivolous argument for chg/est. new law.
Obj (3) will have evidentiary support after reasonable discovery (must identify)
Obj (4) denial of factual contentions reasonably based on lack of info/believe (must identify)
***this is a limitation to Rule12(b)(6); lawyer cannot allege bad facts to force complaint past dismissal
d. Rule 11(c) allows sanctions for anybody (law firms, partner, parties, unrepresented parties)
(1) How sanctions initiated
(1)(A) if raised by motion, offending party has 21 days cooling off period to withdraw/correct
prior to filing motion with court
(1)(B) If court raises issue sua sponte (on own initiative) no cooling off period (no chance to
withdraw) BUT court must issue an order to show cause why sanctions should not be
imposed
(2) What kind of sanction imposed?
-purpose is deterrence, purpose not compensation to moving party
-monetary (including punitive)/ Nonmonetary available
-consider willfulness, intent to injure, legal training, pattern of misconduct, added time/expense
of
litigation, minor or major part of pleading
e. Rule 11(d): does not cover discovery (covered by FRCP 37)
f. Golden Eagle v. Burroughs (1986 *** this is pre 1993 amendment to FRCP 11) handout
(1) FACTS: TC imposed sanctions on law firm and held that appellant engaged in misleading conduct
that contravened FRCP 11 for not stating good faith arg + not citing contrary authority
(2) HOLDING: Reversed (no sanctions) b/c TC's interpretation made FRCP 11 more complex than it
needed to be and created costly obstacles for lawyers.
-sanctions should not have been imposed where a plausible good faith argument was made
-FRCP 11 was intended to sanction attorneys who submitted motions/pldgs not supported in law
or fact and not for courts to evaluate, under ethical stds, accuracy of Ds arguments
g. Walker v. Norwest Corp. (1996) p. 416
(1) FACTS: DC imposed sanctions for filing a diversity case in which party failed to plead complete
diversity of citizenship and pleaded facts which tended to show there was not complete
diversity. Upon receiving the complaint, Norwest Corp. informs attorney that the complaint
showed on its face that there was no diversity jurisdiction and asked him to dismiss or face
sanctions. Attorney did not dismiss.
(2) HOLDING: Rule 11 does not require the court to identify diversity and allege citizenship for D; rather
attorney representing the P should identify citizenship of the Ds and establish diversity.
f. Christian v. Mattel (2003) p. 421 (failure to conduct adequate factual investigation)
(1) FACTS: Attorney brought suit on behalf of client, claiming that Mattels Barbie dolls infringed
clients doll copyright. TC found that P should have discovered prior to commencing the
civil action that D could not have infringed Ps copyright b/c Ds dolls had been created well
before Ps doll and Ds dolls had clearly visible copyright notices on their heads P
behaved boorishly during discovery and had history of prior litigation misconduct
(2) HISTORY: Rule 11 sanctions are limited to signed pleadings, motions and other filings.
-TC had failed to make clear what specific conduct it was ordering sanctions pursuant to b/c
AC was unable to tell whether the misconduct being sanctioned occurred outside the pleadings,
(such as in oral argument, meetings of counsel, or at a key deposition), AC had no choice but to
reverse the sanctions order given that Rule 11 sanctions are limited to the filing of court papers.
-FRCP 11(b)(3)
-Scope of holding signed document; excludes discovery per 11(d); not guard atty asshole
personality
**HYPO: if Christian atty only had one day before SOL ends, and files (no Rule 11 sanction cant
reasonably know in one day). Later presenting in court (Sanctions 11(b) incl. later advocating).
5. Specificity in Pleading Special Claims
a. FRCP 9(b) circumstances constituting fraud or mistake shall be stated w/ particularity (malice, intent,
knowledge, and other conditions of a persons mind may be alleged generally)
exception to 8(a)(2)s short + plain statement
(1) Common Law Fraud
(a) Stradford v. Zurick Insurance Co CB 401
-FACTS: P dentist brought an action against his property insurer seeking payment under policy
for water damage to his dentists office, to which the insurance company responded by
filing several counterclaims stating P made fraudulent claims
-HOLDING: need fair notice for fraud claims (FRCP 9(b) requires time, place, & nature of fraud)
-Court is stating that the counterclaims are insufficient b/c they do not provide a sufficient
basis for P or the Court to understand what it is exactly D is alleging that constituted
fraudulent conduct
(b) Elements of Fraud
(1) D made a statement (particularity)
(2) The statement is false (particularity)
(3) D knew it was false (general b/c can state Scienter generally)
(4) D intended P to rely (general)
(5) P relied (particularity)
(6) P was injured (particularity)
(2) Securities Fraud
(a) There are heightened standard of pleading beyond 9(b) for securities fraud
- PSLRA (Private Securities Litigation Reform Act of 1995)
- helps corporations Reqs = particularity; strong Inferences; scienter (intent for fraud)
(b) 15 U.S.C. 78u-4(b)(1)(B): if P alleges D omitted a material fact, complaint shall specify (1)
each statement alleged to be misleading and reason why its
misleading + (2) strong inference of Ds scienter
(c) Tellabs v. Makor Issues & Rights (2007)
-FACTS: Ps alleged that Tellabs misrepresented the strength of its products and earnings in order
to conceal the declining value of the company's stock. Under PSLRA, Ps bringing
securities fraud complaints must allege specific facts that give rise to a "strong
inference" that D intended to deceive investors (scienter).
-HOLDING: a securities fraud complaint must allege facts establishing an inference of guilty
intent that is "cogent and at least as compelling as any opposing inference of
non-fraudulent intent."
-use comparative evaluation: consider inferences urged by P + competing inferences
rationally drawn from facts alleged (view all allegations as a whole)
-reasonable < strong inference < smoking-gun
-lack of motive allegation is not fatal
-omissions/ambiguities count against inferring Scienter b/c P must state with particularity
-CONCUR (Scalia): test should be stronger inference of scienter must be more plausible than
not
-CONCUR (Alito): only facts that are alleged with particularity should be considered in
scienter analysis
(d) In re scienter elements, Tellabs increases stated generally strong inference
b. Civil Rights (attack on civil rights w/ attempt to heighten pleading reqs.)
(1) Leatherman v. Tarrant County Narcotics Unit (1993)
-FACTS: 2 cases involve the execution of search warrants by law enforcement officials, which arose
out of the forcible entry into Ps homes TC dismissed complaints b/c failed to meet
heightened pleading standard AC affirmed SC reverse
-HOLDING: court cannot require a higher standard specificity for a certain type of claim that is not
enumerated in Rule 9(b)
-Rule 9(b) imposes a particularity req. in re fraud /mistake but does not cover municipal liability
-Rules 8/9 could be rewritten by the legislature, but w/o amendment, courts must rely on
summary judgment and discovery to weed out the non-meritorious claims
-NOTE: this case is BEFORE Bell Atlantic and Ashcroft
6. Allocation of Burden
a. 3 Burdens: pleading, production, and persuasion
b. Gomez v. Toledo (S.Ct., 1980) handout
-FACTS: P officer told truth on corruption of investigation suspended and discharged w/o hearing
-Holding: D has burden of pldg he acted in good faith (subjective, he has info to it). D also has burden of
pldg qualified immunity (affirmative defense goes in Ds answer (Rule 8(c)).
-Nothing in the language of 1983 suggest that P must allege bad faith in order to state a valid
claim for relief
-Since qualified immunity is a defense, the burden of pleading it rests with the D
-D in better position to provide evidence in re his subjective intent
**Burden of pldg now does not mean have burden of proving (persuasion) later
c. Jones v. Bock (2007) p. 407
-FACTS: P was a prisoner sued the state after he suffered injuries in custody when the staff refused to
reassign him to work he could perform in light of his injuries Prison Litigation Reform Act:
no action shall be brought in re prison conditionsuntil all administrative remedies are
exhausted
-HOLDING: P need not plead and demonstrate exhaustion of administrative remedies in the complaint.
-FRCP does not require that exhaustion be pleaded, and Rule 8(c) identifies a non-exhaustive list of
affirmative defenses that must be pleaded in response, leaving room for exhaustion as an affirmative
defense.
-In addition, the PLRA which deals extensively with the subject of exhaustion, is silent on the issue
whether exhaustion must be pleaded by the P, or as an affirmative defense by D this supports the
fact that the usual practice should be followed (usual practice under FRCP is to regard exhaustion as
an affirmative defense)
-Contrary view is reasonable but the way to establish higher pleading requirements is to amend the
FRCP, not on a case-by-case basis in courts.
**important b/c typically the one who has the burden of pldg has the burden of providing evidence later
in the trial
B. Defendants Response to Complaint
1. General
a. So What FRCP 12(b)(6) (motion to dismiss for failure to state a claim on which relief can be granted)
b. I didnt do it FRCP 8(b) and 8(d) (factual denial)
c. Yes, but FRCP 8(c) (affirmative defense)
d. Technical Objections FRCP 12(b) 1-5, 7 (motion to dismiss for lack of jurisdiction, etc.)
2. Default D fails to respond to complaint
a. When complaint has been filed and served what does D do?
(1) D waives being served (Rule 4(d)) 60 days (instead of usual 20 days) to file answer (12(a)(1))
(3) D files motion to dismiss, and denied, then D has 10 days after notice of crts action to file answer
b. Rule 55 if D does nothing, (1) clerk enters party default; (2) P moves for default judgment; (3) crt rule
c. How to compute time (6(a))
(1) Count next day as Day #1; if final day lands on weekend/holiday, go to next business day
(2) If amount of time is 11 days or more, count weekends/holidays in calculation
(3) If amount of time is 10 days or less, do not count weekends/holidays
3. Pre-Answer Motions and Rule 12(b) Defenses
a. Rule 12(b) permits certain defenses to be raised by pre-answer motion (ends case w/o reaching merits)
(1) Lack of SMJ (unwaiveable crts can always dismiss 12(h)(2))
(2) no personal jurisdiction (waived)
(3) improper venue (waived)
(4) insufficient process the actual doc itself - i.e. missing signature (waived)
(5) insufficient service of process how the doc was delivered (waived)
10
(6) failure to state a claim upon which relief can be granted (unwaivable 12(h)(2))
(7) failure to join party under Rule 19 (unwaivable 12(h)(2))
Rule 12(e) motion for more definite statement (too vague to respond to)
-not particularly effective extremely vague complaints can be dismissed via 12(b)(6) or more
information can be produced during discovery
Rule 12(f) motion to strike (insufficient defense, immaterial, redundant, scandalous matter)
-allows D to attack a specific portion of the complaint (works like 12(b)(6) but removes only part of
the complaint)
-also allows D to remove gratuitously nasty or redundant/immaterial language
Rule 12(c) Motion for Judgment on the Pleadings
-resolves case in situations where the parties pleadings reveal agreement about the relevant facts and
only the applicable law is in question (discovery not needed) proceed straight to judgment
-NOTE: this occurs after the answer is filed
b. Waiver provisions
(1) 12(g) Rule 12 motions must be raised together, or waived forever (except those in 12(h))
(a) Right to join motion under this rule may be joined with any other motion under this rule
(b) Only 1 pre-answer motion raising Rule 12 defenses are permitted prevents D from stalling
(c) Allows D to raise defenses later if they were unavailable at the time
(2) 12(h)(1)- If no pre-answer motion, D must raise Rule 12 defenses in answer OR in amendment
to answer permitted by Rule 15(a), or forever waive Rules 12(b)(2)-(5) or (e) defenses.
(3) 12(h)(2) unwaivable defenses (12(b)(1) or (6) or (7))
(4) Defenses that can be waived at any time: SMJ, 12(b)(6) failure to state claim, 12(b)(7) failure to join
necessary party
c. NOTE: motions, unlike pleadings (complaint/answer), does not require a party to set forth her version of
the facts alleged in the complaint; simply a request for court to take some action (***still subject
to Rule 11 Sanctions)
4. Answer D respond to complaints substantive allegations w. a short and plain statement of his defenses
a. Denials
(1) Rule 8(b) requires specific denial for each allegation; or a general denial against ALL allegations;
denial based on insufficient info; failure to deny (allegation admitted)
(2) Rule 8(d) any allegation not denied is deemed admitted
**NOTE: must admit when you KNOW its true; can deny when you dont exactly know its true or
when (hypo: Ps friend tells D fact. D can deny b/c Ps friend has a biased interest)
(3) Zielinski v. Philadelphia Piers, Inc. (1956) p. 433
-FACTS: P alleged injury by a forklift owned D and operated by Ds employeeD generally denied
allegationsAfter the statute of limitations had passed, discovery revealed that D did not
own the forklift and Ds employee was not operating forkliftP sought a pretrial order that
D admitted ownership of the forklift and agency of the operator of the forklift, on the
grounds that Ds general denial was ineffective.
-HOLDING: D must file specific denial, not general denial when some allegations are trueUnder
Rule 8(b) allegations that are not specifically denied are deemed admitted.
-general denial was ineffective b/c D admitted in its letter to the insurance company that P was
injured by a forklift. To be effective, D must have specifically denied ownership of the forklift
(Since D did not contest P's injury or the fact of the collision, it should have made a specific
denial only as to the agency allegation)
-per state law, an allegation of agency is deemed admitted if D seeks to amend the answer after
the statute of limitation has expired.
-per equitable estoppel, D cannot take advantage of Ps mistake when the mistake was
perpetuated by Ds inaccurate responses regarding ownership and agency
b. Affirmative Defenses
(1) Rule 8(c) non-exhaustive list of affirmative defenses raised during pleading stage
i. contributory negligence
ii. fraud
iii. res judicata (preclusion)
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-FACTS: P was injured using a water slide sued D alleging it manufactured the slide D initially
admitted it had manufactured the slide in its answer to the complaint on 12/17/73 6.5 months
after statute of limitations expired, D discovered the slide was not manufactured by them D
moved to amend its answer to deny manufacture TC granted leave to amend.
-HOLDING: W/o bad faith on the part of D, courts will generally grant D leave to amend his answer to a
complaint unless it will clearly prejudice the ability of the P to proceed with his suit
-FRCP 15(a)(1) does not apply b/c over 21 days
-FRCP 15(a)(2): court should grant leave freely given when justice so requires.
-prejudice: while justice allows party to amend, court must also balance the issue of prejudice to the
opposing party, in light of the particularly facts of the case.
-court reasoned that permitting leave to amend would not necessarily result in irreparable harm to the
P (not certain that P would be unable to re-file against the proper D despite the SofL) Instead, the
court reasoned that the amendment would merely allow the D to contest a disputed factual issue at
trial, and further that it would be prejudicial to the D to deny the amendment.
-NOTE: the court determined that the risk of harm to the P in granting leave to amend was less than the
risk of having the wrong D pay for a harm it did not inflict.
3. Relation Back (effective to use when SofL ran out) (**on exam, satisfy 15(a) first then 15(c))
a. Amending to ADD A CLAIM (amendment relates back to the date of the original pleading)
(1) Rule 15(c)(2) Amended pldg relates back when new claim/def. arose from the same conduct,
transaction, or occurrence as original pldg
-test: courts take a fairly narrow view if whats amended is simply Ps claim or theory, the
court will probably find same conduct test is satisfied; but where the underlying facts needed to
sustain the new pleading are material different for those alleged in the original complaint, likely
not met
(2)Moore v. Baker (1993) p. 450
-FACTS: P consulted D about a blockage of her carotid artery D recommended surgery
operation left P permanently disabled Ps complaint alleged that D violated informed
consent law by failing to advise her of an alternative therapy D filed a motion for
summary judgment 20 days later, P moved to amend her complaint to assert negligence
claim TC refused to allow P to amend her complaint on grounds that the SofL bars the
claim asserted in Ps proposed amended complaint unless the amended complaint relates
back to the date of the original complaint
-HOLDING: determination of whether an amended complaint may relate back to the date of the
original complaint is whether the original complaint gave sufficient notice or warning
to the D of the possibility of a suit involving the claim now being asserted
-original complaint contained nothing to inform D that claims of negligence in the operation
might be asserted
-in addition, P would have to prove a completely different set of facts in the amended complaint
claim did not arise out of the same occurrence as the claims in the original complaint
(2) Bonerb v. Richard J. Caron Foundation (1994) p.452
-FACTS: P alleged that he was injured while he was a rehabilitation patient at Ds facility P
claimed that the D negligently maintained the basketball court TC granted Ps motion
for substitution of new counsel. P moved to amend his complaint to add a new COA for
counseling malpractice. Ps new attorney alleges that investigations undertaken since
he became Ps attorney indicate to that a malpractice claim is appropriate D objected on
the grounds that the malpractice claim does not relate back to the original pleading and was
therefore barred by PAs 2-year SofL
-HOLDING: Even if an amendment to a complaint changes the legal theory of a case, the amendment
will relate back so long as the original complaint states the same general facts that a
the amended claim is based on, even though it would otherwise be barred by SofL
-relation back doctrine is based upon the principle that one who has been given notice of
litigation
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concerning a given transaction has been provided with all the protection that SofL are designed
to afford b/c the court found that both claims arose from the same set of facts (the injury
suffered by P at Ds facility), then D was given sufficient notice of possible future related claims
b. Amending to CHANGE PARTY or PARTY NAME
(1) Rule 15(c)(3) added party (1) same T/O; (2) not prejudiced; (3) D served w/in 120 days of filing
complaint (4(m)); and (4) D knew/ shouldve know it was party being sued but for mistaken ID
(2) Worthington v. Wilson (1992) handout
-FACTS: P was arrested by 2 officers who allegedly twisted Ps hand and broke it Exactly 2 years
later, P filed a complaint against Peoria Heights, Illinois and 3 unknown officers Peoria
Heights removed the action to federal court P filed an amended complaint, which named
the real identity of the two officers as Ds Ds moved to dismiss on the grounds that they
lacked notice when SofL had run and does not fall under mistake exception
HOLDING: Under FRCP 15(c), adding an additional party by amendment of the pleadings only
relates back to the date of the original complaint if the parties originally listed were listed
by mistake. Mistake means the wrong name, not listing unknown or something
else to indicate lack of knowledge or identity of the party.
1. Notice requirement satisfied
-Under the old version of Rule 15(c), a party later added by amendment must receive actual
notice before the SofL runs in order for the amendment to relate back to the date of the
original complaint.
-Under the new version, the party need only be aware of the action within 120 days of the
complaint being filed in order to relate back to the date of the original complaint.
2. Mistake Exception
-failure to name parties due to lack of knowledge is not naming different parties by
mistake. the exception for mistake under Rule 15(c) does not apply if the party seeking
amendment did not initially know the identity of the party.
-state law pertaining to relation back does not govern the issue. State law only applies when the
state law addresses an issue the federal law does not. It is clear that 7 th Circuit precedent states
that unknown parties are not mistaken parties subject to the relation back rule (federal law
addresses the issue) Thus, federal law applies.
4. How do to Amendment to Pleading Analysis
-Did SOL run when amending?
(a) NO Rule 15(a) analysis justice so requires? prejudice, bad faith.
(b) YES First do 15(a) analysis, then Rule 15(c) relation back
III. PRE-TRIAL DISCOVERY
A. Generally
1. Discovery usually w/o judge, but can make motion to compel judge to get involved.
2. Unfair party with more money can wear down party w/ less resources
3. Info need not be admissible evidence, discovery is permitted if it serves as a lead to admissible evidence or
leads to any witness who might have discoverable info
4. Rule 26 general provisions on Discovery
- Discovery permitted once answer filed & know its going to be litigated (some overlap w/ pldg stage)
and after Rule 26(f) discovery conference
- allows for discovery for most information that is relevant + not privileged
B. Sequence of Discovery
1. FRCP 26(f): discovery conference to discuss claims/defenses and possibility of settlement
-Discovery plan: covers the subjects, timing and form, and any agreements the parties make that limit/relaxes
limits prescribed by the rules
-Prerequisite to discovery parties may not engage in discovery until after the discovery conference
2. FRCP 26(a): Initial mandatory disclosures
-must disclose contact info of all witnesses with discoverable info that party PLANS to use at trial (must only
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-absolute immunity: court must protect against disclosures of mental impressions of partys attorney
-witnesses that give statements are always entitled to a copy of their own statement
b. recognized privileges: self-incrimination, attorney-client, doctor-patient, priest-penitent, spousal
c. application:
-our court system seeks to shield parties from excessive discovery generally embarrassing or
confidential info is permitted when info is relevant but party cannot use discovery to harass opposing
party
-FRCP 26(c): allows party to seek a protective order and gives judges the broad power to prevent
abusive discovery
-FRCP 26(b)(5)(A): to invoke privilege party must make express claim and provide sufficient description
d. waiver any privilege may be waived either directly or indirectly
-a waiver in re a specific item, constitutes a waiver of all items under that subject matter purpose of
rule
is to prevent parties from selectively waiving the privilege
-FRCP 26(b)(5)(b) Claw Back tries to protect party from inadvertent waivers of privilege
d. Steffan v. Cheney (1990) p. 461 (*also relevance case)
-P discharged from Navy b/c he was openly gay; P refuse to answer deposition Q - if he had engaged in
homosexual conduct during or after discharge.
-Anti-Sodomy laws still existed, so privilege against self-incrimination (5 th A.)
e. Stalnaker v. Kmart (1996) p. 503
-FACTS: P alleged that an employee in Ds receiving department, created a hostile working environment
and sexually harassed her by inappropriate touching. P served notice of depositions for
several non-party witnesses regarding their sexually related activities P believed that other
witnesses could provide relevant information regarding sexual harassment at the Ds store D
sought a protective order protecting those non-party witnesses from discovery into their
sexually related activities, alleging that such evidence was irrelevant and would violate the
privacy of those witnesses
-HOLDING: The party seeking a protective order has the burden to show good cause for it. To establish
good cause, the parties must submit a particular and specific demonstration of fact as
distinguished from stereotyped and conclusory statements.
-court prevents discovery related to voluntary and sexual activities by the non-party witnesses and only
permitted discovery regarding incidents of sexual harassment by Kmart employee involving the nonparty witnesses.
-FRCP Rule 26(b) permits a broad scope of discovery. The information sought need not be admissible at
trial if it appears reasonably calculated to lead to the discovery of admissible evidence.
-Despite the broad scope of discovery, the court may enter protective orders totally prohibiting certain
discovery or limiting the scope of discovery to certain matters under FRCP Rule 26(c)(1) and (4).
-whether to enter a protective order is within the sound discretion of the court.
f. Upjohn Co. v. U.S. (handout)
1. Attorney-client privilege protects corporate entities as well as individuals
2. Scope of privilege includes lower echelon employees as well as top management executives
D. Discovery Devices
1. Required Initial Disclosures
a. Rule 26(a) Parties must disclose w/o discovery request,
(1) within 14 days after 26(f) conference
(2) must disclose: name and contact info of any person likely to have discoverable info, subject of info
known by those people, copy or description of all docs, computation of damages, and liability
insurance policy (all evidence that party may use to support their claim/defense)
(3) party must disclose above info unless these items will only be used for impeachment
(4) Pre-trail Disclosures (at least 30 days before trial)
-identity of any person who may testify as an expert (if they are retained to actually testify, party
also needs to include report describing the experts qualifications, their opinions, and list of prior
cases in last 4 years that expert testified) expert info must be disclosed at least 90 days before
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c. examiners report granted to party requesting examination (party who was examined may obtain copy upon
request BUT this waives doctor-patient privilege and allows party requesting examination access to all
other examinations involving the same condition)
6. Requests for Admission
a. Rule 36 written request for admission of truth of any matter w/in scope of Rule 26(b)(1)
(1) Rule 36(a) deemed admitted unless objection is filed within 30 days
(a) objection must detail why answering party cannot truthfully admit/deny
(b) party cannot object solely on presents genuine issue for trial argument
(2) Rule 36(b) not evidence, but deemed admitted as fact ONLY for purpose of pending litigation
b. Rule 37(c)(2) SANCTIONS for not admitting when true (justification loophole 37(c)(2)(C) and (D))
c. usable only against parties; in writing; cheap; limited usefulness
d. NOTE: unlike other discovery devices, which result in evidence that can be rebutted by other evidence,
admissions made in response to a request are deemed to be admitted facts (only for current trial)
E. Trial Preparation: Materials Rule 26(b)(3)
1. Work Product Doctrine (limits on discovery):
(a) Documents and tangible things; that are
(b) Prepared in anticipation of litigation
-does not apply to docs prepared during ordinary course of business
(c) By the party/representatives (accountant, consultant, attorney, surety, indemnitor, insurer, agent)
(d) Material must be relevant and not privileged
(e) party seeking docs must demonstrate substantial need and that info cannot be found elsewhere
-exceptions: substantial costs, alternative source is hostile to information seeker
-26(b)(3)(C) a person who gives a statement may obtain copy of her statement w/o showing need
(f) NOTE: info that is not listed in 26(b)(3) cannot be discovered even on a showing of need (nontangible)
2. After criteria, then determine:
(a) Opinion work product (attys mentail impressions, thought process) absolutely protected
(b) Ordinary work product party must show substantial need/ undue hardship (no longer available)
3. Hickman v. Taylor (1947) p. 498 (case decided prior work product doctrine)
-FACTS: following an accident involving one of their tug boats, two tug owners (Ds) fearing litigation, hired
an attorney who interviewed several of the surviving crew members. P filed 39 interrogatories (the
38th requested that D disclose whether any statements of the surviving crew members were taken
following the accident, and if so, to include copies)D admitted that statements were taken, but
that they were privileged matter obtained in preparation for litigation TC held not privileged
AC reversed
-HOLDING: while the protective cloak of attorney-client privilege does not extend to information that an
attorney secures from a witness in anticipation of litigation, an attempt, w/o necessity or
justification, to secure written statements, private memoranda and personal recollections
prepared or formed by an adverse partys counsel, falls outside the arena of discovery
-discovery has ultimate and necessary boundarieslimitations come into existence when the
inquiry encroaches upon the recognized domains of privilege.
-Policy 1: necessity for lawyer to develop his theories w/o fear of having to disclose his strategies
lawyer is protected against disclosure in discovery of info generated by the litigation process
itself but not against disclosure of underlying historical facts
-Policy 2: prevents one side from piggybacking work of another side (not mentioned in case)
-Policy 3: minimize number of situations where the attorney will be called as a witness (not case)
F. Trial Preparation: Experts (didnt go into depth in class)
1. Rule 26(b)(4) - May depose any identified experts whose opinions may be presented at trial (not shield by WP)
G. Sanctions, Ensuring Compliance
1. Rule 26(g)(1) atty sign disclosures/ requests to certify info complete & correct
a. 26(g)(2) also certify that it is: (similar to Rule 11 principle in pldg stage)
(A) Made in good faith
(B) Not improper or for harassment purposes
(C) Not burdensome or expensive
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A. Summary Judgment
1. Rule 56 summary judgment.
a. Rule 56(a) can seek SJ on all claims or partial SJ on one or more specific claims
court shall grant SJ if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law
b. Rule 56(b) can file SJ anytime up to 30 days after discovery ends
c. Rule 56(c) materials accompanying motion: transcript of depositions, answers to interrogatories,
admissions, and affidavits; in addition, memoranda of why SJ is appropriate
d. Rule 56(d) if SJ sought early in trial, court may delay SJ hearing to allow adequate time to conduct
discovery
e. Rule 56(e) NMP must challenge SJ w/ specific facts showing genuine issue for trial (cant rest upon
mere allegations or denials) (differ from 12(b)(6)).
2. Basic Principles
a. court does not weigh evidence (competing evidence = deny SJ)
b. credibility (court does not determine credibility of evidence)
c. favor nonmoving party
d. deny inferences (court will typically leave inferences for the fact finder; however, if inference is too
improbable, court can grant SJ against party who needs to rely on that inference
e. must prove every element of the claim if lack any element, SJ granted for opposing party
3. Burden
a. if neither party offers evidence, the party with the burden of production loses
b. claimants typically bear burden of production on every element of its claim
c. parties defending claim typically have burden on all affirmative defenses
d. if one party offers strong evidence, burden switches to other party to disproveif other party produces no
evidence the court, not the jury, will decide
4. SJ Step-by-Step:
(1) Has Moving Party done enough in its supporting papers?
(2) If so, has NMP done enough to entitle a reasonable jury to find for him?
a. Has MP done enough to grant SJ?
(1)Adickes v. Kress & Co. (1970) handout
-FACTS: P sued D alleging that there was a conspiracy between the D and the police to arrest the P
when she entered Ds store D moved for SJ on the grounds that P could not produce any
evidence in support of a conspiracy TC granted SJAC affirmed SC held D had to
prove state action by showing that Ds employee and a policeman reached understanding
-HOLDING: In re conspiracy actions, SJ may not be granted unless the nonmoving party can show
that there is no genuine issue of fact.
-SJ was improper here b/c the moving party (D) failed to carry its burden of showing the absence
of any genuine issue of factD failed to negate the possibility that there was a policeman in
restaurant while P was awaiting service. Further, D failed to submit affidavits of the waitresses.
-FRCP 56 was not intended to modify the burden of the moving party to initially show the
absence of a genuine issue of material fact. Furthermore, the rule requires D do more than
simply rely on contrary allegations in its complaint. Thus, in order to concede this fact, P would
have to file an affidavit explaining why it was impractical to file an affidavit stating that
someone saw a policeman in the store
-NOTE: this decision was subsequently overruled by Celotex
(2) A. Catrett v. Johns-Mansville Corp. (1985) handout
-FACTS: P wife filed wrongful death action alleging that her husband died from his exposure to
products containing asbestos manufactured by D (causation problem) D offered no
evidence of any sort whatever in support it SJ motion TC grant SJ to D
-HOLDING: the party moving for SJ carries the burden of proving the absence of a material issue of
fact, even on issues where the other party would have the burden of proof at trial
-Ds motion was based solely on P's failure to produce credible evidence to support her claim
-DISSENT: SJ and directed verdict are essentially similar P is just going to lose at trial
B. Celotex Corp v. Catrett
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-HOLDING: reverse AC it is not a requirement that moving party has to support its SJ motion
with affidavits
- under AC ruling, D could have never been granted SJ unless he could have produced a
detailed chronology of the decedent's life and showed that the decedent never came into contact
with its products
-P was in the best position to produce such information burden should have rested on her
(3) If P = MP (has burden of production at trial) question 1 becomes
(a) Would rsnble jury have to find for MP in absence of any opposing evidence?
(b) Has P established all elements of his claim?
(4) If D = MP (does not have burden of production at trial) question 1 becomes
(a) Celotex when affirmative evid not available, show P (NMP) cant prove element of their case
b. If so, has NMP done enough to avoid SJ?
(1) Arnstein v. Porter (1946) Handout
-FACTS: P sued D for copyright infringement over numerous songs. P alleged that D had lived with
P, and had the opportunity to take this material from the P. D denied ever hearing or seeing
any of Ps compositions TC granted Ds motion for SJ
-HOLDING: SJ is improper when credibility of the parties is an issue
-there are similarities in Ps and Ds compositions, but they do not compel the conclusion that D
copied P however, the similarities are enough to allow the case to go to the jury, and the jury
may determine whether the similarities resulted from coincidence.
-SJ would have been proper if D did not have access to Ps compositions. This also presents an
issue of fact and even though part of Plaintiffs testimony does seem extreme, the Plaintiffs
credibility should be determined by the jury
(2) Bias v. Advantage International, Inc. (1990) p. 591
-FACTS: college basketball player entered into a representation agreement with the D shortly
thereafter, player died of a cocaine overdose P, representative of the estate of player, sued
D for injuries allegedly arising out its representation TC awarded SJ to D
-HOLDING: affirmed in order to withstand a SJ motion once the moving party has made a prima
facie showing to support its claims, the nonmoving party must come forward with
specific facts showing there is a genuine issue for trial
-moving party always bears the initial responsibility of informing the court of the basis for its
motion and identifying those portions of the record, which it believes demonstrate the absence of
a genuine issue of material fact
-once the moving party has carried its burden, the responsibility then shifts to the nonmoving
party to show that there is, in fact, a genuine issue of material fact nonmoving party must
bring forth specific facts showing there is a genuine issue for trial.
-in evaluating the nonmovants proffer, court must draw all inferences in favor of the nonmovant
-court held that the testimony of players parents and coach that he was not a cocaine user did not
constitute sufficient specific facts b/c they did not attend the parties at which he used cocaine
(3) Summary Judgment vs. FRCP 12
-FRCP12 allows a court to resolve case based solely on the allegations in the pleadings (court accepts
factual allegations in the pleading as true). In contrast, SJ forces court to look at the evidence
-NOTE: FRCP 50 judgment as a matter of law occurs during the trial while SJ is a pretrial motion
V. TRIAL
A. Trier of Fact Judge or Jury
1. 7th Amendment right to jury trial extends to P and D
a. Pre-1791 jury trial for common law (not equity)
b. Today law and equity merged (so look at remedy to tell difference)
c. Juries decide issues of fact; judges decide issues of law
d. Lots of party autonomy can stipulate verdict unanimous/ not; min 6 jurors, may agree to less.
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2. Ways courts take away pwr from juries - New trial, jnov, directed verdict, sum. jug, even 12(b)(6)
B. Presumptions and Burdens of Proof and Persuasion
1. Reid v. San Pedro, LA & Salt Lake Railroad (1911) p.603
-FACTS: landowner's complaint alleged that the railroad company was negligent in maintaining a fence, and
as a result, certain cattle were killedevidence supports two possibilities: one of which would
impose liability on D, while the second would not.
-HOLDING: when things could go either way, court must enter verdict for party w/out burden of proof
C. Judgment as a Matter of Law (Directed Verdict and J.N.O.V.)
1. Generally
a. jury plays role only when the facts are in dispute; when it is clear from the evidence that one side should
prevail judgment as a matter of law (takes case away from jury)
b. timing party can move for JMOL either before the case is submitted to jury or after a verdict is returned
-in federal courts (and most states) party may not seek J.N.O.V. unless she filed for a directed verdict
c. standard no rational jury could find for the party opposing the motion
-this affords judge more leeway than SJ motion b/c the judge has seen and heard live witnesses and can
weigh the evidence to gauge credibility
-court should leave most credibility determinations to the jury
1. Rule 50 JMOL and renewed JMOL
a. Rule 50(a) if no rational jury could find for party on issue court may grant motion for JMOL
b. Rule 50(b) if court does not grant JMOL, case goes to jury
(1) Party may file motion to renew JMOL w/in 28 days after entry of judgment (+ new trial)
(2) 50(b)(1) if verdict was returned, court can (A) allow judgment to stand; (B) order new
trial; or (C) direct entry of JMOL
(3) 50(b)(2)(3) if verdict not returned, court can (A) order new trial; or (B) direct entry of JMOL
c. Rule 50(c) if granting renewed JMOL, court can conditionally grant new trial
(1) If judgment reversed on appeal, new trial shall proceed unless AC otherwise orders
(2) If motion for new trial is conditionally denied party may appeal
d. To make JNOV motion, you must have motioned for directed verdict at close of evidence
2. Directed Verdict pre-verdict JMOL
a. directed verdict cannot be granted until the opposing party has been fully heard on that issue
-D often files motion for JMOL at close of Ps case
-both parties may file motion at the close of all evidence
b. Pennsylvania RR v. Chamberlain (1933) CB 594
-FACTS: P, on behalf of a deceased railroad employee, brought suit against Penn. Railroad alleging that
their negligence had caused Mr. Chamberlains death TC granted Penn. RR directed verdict
-HOLDING: D is entitled to a directed verdict in a case where the proven facts give equal support to each
of two inconsistent inferences, where the P has the burden of proof
-when there is conflict of testimony upon a matter of fact, the question must be left to the jury to
determine
-here there really is no conflict in the testimony as to the facts, as the witnesses flatly testified that
there was no collision between the cars.
-where proven facts give equal support to each of two inconsistent inferences, in which event neither,
judgment as a matter of law must go against the party with the burden of proof
-NOTE: Essentially when evidence tends to equally support two divergent possibilities, neither is said to
be established by legitimate proofThus, a verdict in favor of the party with the burden of proof
is clearly inappropriate.
(1) Witnesses
(a) For D = 3 eye witnesses (including people on string) said there was no collision
(b) For P = 1 witness who wasnt paying attention but heard loud crash; inferred collision
1) Also evidence that 9-car string was moving faster than Hs string and caught up
(2) Directed verdict if other partys case rests on mere speculation and conjecture. Witness Credibility
left up to jury. Judge views evidence in light most favorable to NMP.
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(3) If reasonable men could infer different things from undisputed facts, then send case to jury
(a) Old if there was scintilla of evidence for NMP, the MP cannot have direct verdict
(b) New courts take more pragmatic approach and weigh evidence
c. Railroad Co. v. Stout (1873) handout
-FACTS: child was injured on the railroad's turntable railroad defended suit by arguing that it was not
negligent and that the injury to the child was accidental or brought upon himself TC returned
a verdict for the child
-HOLDING: AC affirmedalthough the facts were undisputed, it was for the jury to determine whether
proper care was given or whether they established negligence.
-although the turntable was located away from inhabited dwellings, it was proven that several boys
were playing on the turntable when the child was injured and that they had done so on other
occasions within the observation and to the knowledge of the railroad's employees.
-where there are factual disputes then go to jury. Mix Q of law and fact jury determines what
community standards are of reasonable care.
3. J.N.O.V. post-verdict JMOL
b. purpose if judge granted directed verdict motion and AC reversed would need completely new trial
c. timing must be filed within 28 days after judgment and period cannot be extended (FRCP 50(b))
d. in practice it is more difficult for judge to enter J.N.O.V. over a directed verdict b/c judge is faced with a
jury verdict that decides precisely what a party is claiming no reasonable jury could decide
D. Verdicts and New Trial Motions (must be granted within 28 days after judgment and cannot be extended)
1. Rule 59(a) grounds for granting NEW TRIAL; new trials may be granted when:
a. Flawed Procedure
-party must (1) show that error prejudiced him by possibly changing the outcome (2) raise objection
during trial
b. Flawed Verdicts verdict against the great weight of the evidence
-Standard for new trial LOWER than J.N.O.V. standard (merely begins contest again)
-FRCP 50(b) allows party to ask for JNOV and New Trial in a single motion (if JNOV fails, party will
be satisfied with New Trial in the alternative)
c. Rule 59(b) motion must be made w/in 10 days of judgment
d. Does not require prior motions; can be raised sua sponte (Rule 59(d))
2. New Trial standard miscarriage of justice (not just that judge would have voted other way)
3. Lind v. Schenley Industries (1960) p. 658
-FACTS: P alleged that D had promised him an increase in pay but then breached that promise. The alleged
promises were oral. P and his secretary testified to such promises; Ds agents denied making
them jury found a k and awarded damages D moved for judgment notwithstanding the verdict
and a new trial, which the trial judge granted; P appealed
-HOLDING: reversed TCs grant for new trial b/c judge improperly substituted his interpretation for that of
the jury when the evidence was a close call
-when the basis for ordering a new trial is that the verdict was against the weight of the evidence, it is
frequently stated that a motion for a new trial on this ground is nonreveiewable b/c it is within the
discretion of the TC. However, this discretion must still be exercised in accordance with ascertainable
legal standards and if AC is shown circumstances which clearly indicate an abuse of discretion, reversal
is possible
VI. APPEAL (losing party must file w/in 30 days)
A. General
1. U.S. litigation system operates on heavy presumption that TC is correct
2. AC have jurisdiction only to review specific TC judgments claimed to be in error may reverse only if the
error appears in the record, if it is an error the appealing party pointed out, and if it is harmful
3. A party cannot appeal an issue unless that issue was resolved adversely to the partys interest and was likely to
have affected the result (NOTE: the winning party can still appeal if the victory was not as complete as she
would have liked)
4. A party cannot raise a claim/defense for the first time on appeal (exception: subject matter jurisdiction issue)
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5. Parties must raise objections to procedural mistakes otherwise forfeits ability to appeal on these mistakes
6. Harmless error an error that does not substantially harm the parties cannot be the basis of a reversal
B. Final Judgment Rule (most significant limit on appeals)
1. Generally, a party may appeal only final decisions of the TC (after ALL issues have been litigated)
2. Final decision = one which ends the litigation on the merits and leaves nothing for the court to do but execute
3. USC 28 1291 US courts of appealsshall have jurisdiction of appeals from all final decisions of the
district courts of the United States (1) defines moment at which an appeal is proper and (2) grants
jurisdiction for AC to hear appeal
a. grant/denial of SJ/motion to dismiss are NOT a final judgment
b. generally interlocutory rulings not allowed (cant appeal after each time TC makes a decisionlimits)
-interlocutory ruling: pretrial rulings that do not completely resolve the case
c. if appealing party fails to meet 1291, the AC lacks subject matter jurisdiction to review appeal
d. party must file appeal within 30 days of the final judgment or motion to extend period
3. Exceptions
a. 28 USC 1292(b) permits appeal when both TC and AC agree immediate (interlocutory) appeal is
justified: (1) decision made is sufficiently important in deciding the case AND
(2) AC agree to take it
-NOTE: order must involve controlling question of law; question of fact never justified under 1292
b. Rule 54(b) when there are multiple claims/parties, court may direct entry of final judgment for some
claims earlier than others so they can be appealable if: (1) judgment made on single claim
and (2) there no just reason for delay
c. Collateral Order Doctrine (court created exception)
-Permits immediate appeal on some ruling that could not be given effective appellate review if it had to
wait; has three requirements:
(1) order must resolve an important issue that is separate from the merits of the case; and
(2) order must be conclusively settled; and
(3) order must be effectively unreviewable on appeal from a final judgment
d. Mandamus/prohibitions original proceedings that are brought against a public official and b/c judge is a
public official, both writs are available as a way of challenging a decision
only granted under exceptional circumstances of abuse of judicial power
-NOTE: mandamus orders judge to do something; prohibition prohibits judge from doing something
4. Liberty Mutual Insurance Co. v. Wetzel
-FACTS: Respondents claimed that the Petitioners employee insurance benefits and maternity leave
regulations discriminated against women in violation of the Act Respondents moved for partial
SJ TC ruled in favor of the Respondents Petitioner appealed
-HOLDING: grant of SJ on the issue of liability, but not relief, was not a final decision
-Under 28 U.S.C. 1291, where judgments are interlocutory and assessment of damages or awarding of
other relief remain to be resolved, these judgments are not final, therefore, unappealable
5. Pullman-Standard v. Swift (1982) handout
-FACTS: TC found no discriminatory intent; AC reversed petitioners argue that AC failed to comply with
FRCP 52(a) that the findings of fact of a TC may not be set aside unless clearly erroneous
-HOLDING: AC erred in the course of its review
-AC held that IAM was acting out of discriminatory intent ( issue specifically not reached by the TC)
-Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous
-FRCP 52(a) does not apply to conclusions of law AC, therefore, was right in saying that if a TC's
findings rest on an erroneous view of the law, they may be set aside on that basis.
-But here the TC was not faulted for misunderstanding the law; it was reversed for question of fact
-proper remedy if found to be clearly erroneous is remandhere, AC did not remand; instead, it made its
own finding of fact
C. Scope of Review
Grant JNOV
Deny JNOV
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IX. PERSONAL JURISDICTION (both SMJ and PJ must be satisfied in any case)
A. Generally
-PJ is a courts power over the parties to the case (constitutional requirement)
-if a court does not have PJ over a party, any judgment the court renders does not bind that party b/c violates
parties right to due process
-NOTE: court must have both PJ and SMJ
B. Origins
1. Pennoyer v. Neff (1877) p. 66 presence and consent
-FACTS: Mitchell, a lawyer, sued D his client, for unpaid legal fees. D (nonresident) was not personally
served with process; constructive service was issued upon D by publication. D did not come to
court and default judgment was entered against him. After the default judgment, D acquired 300
acres of land. To satisfy his judgment against D, Mitchell had the sheriff seize and sell Ds land.
The land was purchased by P, who received a sheriffs deed as evidence of title. The sheriff then
turned the sale proceeds over to Mitchell. Shortly after the sheriffs sale, D discovered what had
happened to his land and brought suit against P to recover the land (P argues transfer invalid b/c
first trial was not proper) TC ruled against D
-HOLDING: may enter a judgment against a non-resident only if the party 1) is personally served with
process while within the state, or 2) has property within the state, and that property is attached
before litigation begins
-Here, the SC is distinguishing between suits in personam vs. in rem.
-personam suit is a suit against a person, whose purpose is to determine the personal rights and
obligations of the D
-in rem action is an action where jurisdiction pertains to property
-constructive service is sufficient to inform parties of action taken against any properties owned by them
within the forum state, b/c property is always in possession of the owner, and seizure of the property will
inform the owner of legal action taken against him
-when a suit is merely in personam, constructive service through publication upon a non-resident is
ineffective
-no state can exercise direct jurisdiction and authority over persons/property outside of its territory;
however, a state may subject property within its boundaries to the payments of its citizens, even when
the land is owned by a non-resident
2. Two circumstances where it is legitimate to assert PJ over D:
a. In Personam D actually PRESENT/ reside in state (jurisdiction on D herself)
-NOTE: opinion doesnt tell us what is minimum standard of notice
b. In Rem D owns property in the state, but must ATTACH the property to litigation (jurisdiction over a
particular item of property owned by D)
i. true in rem: main purpose is to adjudicate legal interests in the property in question
ii. quasi in rem: action brought for purposes other than determining competing rights to property
***important do #5 p. 74 (g, h, i are very important)
c. Differences
i. How Jurisdiction Is Obtained
-in personam serve D personally
-in rem seize the property (recent in rem actions require P to notify D directly if can be found)
ii. Effect of Judgment
-in personam judgment binds D personally (P can have assets owned by D seized and sold to
satisfy judgment)
-in rem judgment binds only the property
d. Any judgment rendered w/o reasonable notice violates Ds due process rights and is therefore valid
3. Constitutional concerns
a. Full faith and credit: requires every state to enforce the judgment of every other state; Pennoyer held that
a court need not enforce a judgment entered w/o PJ (PJ is the ONLY exception)
b. Due process: Pennoyer also stated that due process guarantees an individual that his right can be
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adjudicated only be a court that has personal jurisdiction over him thus, a court cannot enforce a
judgment rendered w/o PJ even if it wanted to
B. Minimum Contacts Todays Standard
1. Step-by-Step:
-Is there general jurisdiction? Yes there is jurisdiction; No Is there specific jurisdiction? Yes
jurisdiction; No no jurisdiction
2. International Shoe Co. v. Washington (1945) p.80 Enhanced the reach of PJ by allowing court to rule on Ds
who are not present in the state (replaced Pennoyers
strictly geographic criteria w/ connections to a state)
-FACTS: D was based in DE with an office in Missouri. D employed salesmen that resided in Washington to
sell their product in Washington. Washington sued D after D failed to make contributions to an
unemployment compensation fund exacted by state statutes
-HOLDING: in order for a state to exercise PJ over a D, the D must have certain minimum contacts w/ the
state so that exercising jurisdiction over the D would not offend traditional notions of fair
play and substantial justice
-Ds only connection with state was that it employed salesmen in the state; salesmen did not enter into ks
with buyers but simply sent orders to companys headquarters
-for a corporation, the minimum contacts required are not just continuous and systematic activities
but also those that give rise to the liabilities sued on. D could have sued someone in Washington. It was
afforded the protection of the laws of that state, and therefore it should be subject to suit
-DISSENT: states power to tax should not be qualified by an ambiguous statement regarding fair play and
substantial justice
-NOTE: opinion provides little guidance on fairness other than to indicate that it is inconvenient to litigate
in a distant court
3. Number of Contacts Necessary (General v. Specific Jurisdiction)
a. Specific lawsuit arises from Ds actual contact w state
-ex: DNY drive car and hit P in CA, P can sue in CA
-if the claim is specific jurisdiction (arose out of), single contact is enough
b. claim did not arise out of contacts PJ not allowed even if there are substantial contacts
c. General overwhelming contacts; court suggests that there are cases where the contacts were so
continuous and systematic that PJ is allowed even if the claim was entirely unrelated to the contacts
-NOTE: for exam, general jurisdiction is limited to clear issues such as domicile, corporations, etc.
-Goodyear Dunlop Tires v. Brown (2011) p. 132
-FACTS: families of two NC teenagers killed in a bus crash in France brought suit in NC state,
alleging faulty tires. The tires were made in Turkey, and the Ps sued Goodyear's
Luxembourg affiliate and its branches in Turkey and France AC held that the foreign
Ds had sufficient contacts in the state to support general PJ.
-HOLDING: SC acknowledged that general jurisdiction could exist, but not on the facts of the
present case
-lower court relied on the subsidiaries' placement of their tires in the "stream of commerce" to
justify the exercise of general jurisdiction over the subsidiaries.
-SC determined that the subsidiaries were not amenable to general jurisdiction in NC courts
b/c their attenuated connections to the State fell far short of the continuous and systematic
general business contacts necessary to empower NC to entertain suit against them on claims
unrelated to anything that connected them to the State.
-the sporadic sales of the subsidiaries' tires in NC through intermediaries were insufficient to
warrant the assertion of general jurisdiction
4. Shaffer v. Heitner (1977) p. 93 International Shoe only dealt w/ in personam; Shaffer held that there must be
minimum contacts in re quasi in rem (but no effect on in rem)
-FACTS: corporate officers and directors sought review of TC judgment contending that DE's statute
permitting its courts to take PJ by sequestering D's property located in the state violated the due
process clause b/c it permitted courts to exercise PJ despite the absence of sufficient contacts with
the state
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-HOLDING: Quasi in rem jurisdiction over D cannot be exercised unless D had such minimum contacts with
the forum state that in personam jurisdiction could have been exercised over him
-notion of in rem suit as one against property was a legal fiction b/c the suit really affected the persons
interest in that property b/c due process protects a persons interest in property, in rem cases should be
analyzed under the same minimum contacts standard used in in personam cases
-appellant's seized property did not have sufficient contacts with the state
1. Property was stock owned by D
2. Case did not arise out of the stocks (D was sued b/c of acts they committed as corporate officers
not b/c of their status as shareholders)
3. Court found that although stock was a contact, it was not by itself enough to satisfy test
-appellants had neither purposefully availed themselves of the privilege of conducting activities within the
state, nor had any reason to expect to be brought before a Delaware court.
-Limitations of Holding
1. Shaffer does not destroy in rem jurisdiction, it simply prevents the use of quasi in rem jurisdiction
when the property is the only contact and the action has nothing to do with the property
2. Property is a contact
3. Property alone may be enough if the claim arises out of the property
5. World-Wide Volkswagen Corp. v. Woodson (1980) p. 103
-FACTS: NY resident purchased a car in NY. Purchaser then moved to AR but was involved in a car
accident in Oklahoma while in route purchaser sued NY dealer alleging design defect
-HOLDING: Oklahoma court could not exercise jurisdiction over the NY dealer b/c there were no contacts
between dealer and Oklahoma
a. D has no minimum contacts w/ state b/c they did not purposefully avail themselves
-purposeful availment test: connection count as contact only if it results from an at that defendant
purposefully directed at the forum state
-here, D did not reach out to Oklahoma to distribute cars or advertise and did not know buyer
would take it to Oklahoma
b. Fairness comprises 5 factors:
1. Burden on the D (primary concern)
-considers not only the distance D must travel but any other circumstances that make defending in
the forum burdensome (ex. core legal differences)
2. Interest of the forum in adjudicating the case
-a state is interested in hearing a case if any of the parties are from that state or if the dispute
directly affects that state
3. Ps interest in obtaining convenient and effective relief
-this factor is satisfied if P is from the forum or if the forum is a convenient place to try the case
b/c of the availability of witnesses or other evidence
4. Interest of the interstate judicial system in effective resolution of controversies
-it is inefficient when a case involving multiple parties must be split up and litigated in several
different places
5. Shared interest of the several states in furthering fundamental substantive social policies
-if the alternate forum does not recognize Ps claim, refusing to exercise jurisdiction frustrates the
policy underlying the substantive law
c. Lack of fairness rarely defeats PJ if there are purposeful contacts (requires strong unfairness)
C. Minimum Contacts Step-by-Step
(1) Are there any contacts at all between D and the forum? If not, the analysis stops (no PJ)
(2) Is it fair? If there are contacts, court will review the 5 fairness factors
D. Stream of Commerce Problem
a. Generally
-problem arises when a D distributes its goods in multiple states through a 3 rd party
-although D knows that its goods to a particular state, it does not know exactly which products go where
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-issue: whether purposefully injecting goods into the stream of commerce constitutes a purposeful availment
with a state in which one of those goods causes injury
b. McIntyre Machinery v. Nicastro (2011) p. 124
-FACTS: the manufacturer directed marketing and sales efforts at the U.S., but the question was whether the
NJ court had the authority to exercise PJ; thus, it was the manufacturer's purposeful contacts with
NJ, not with the U.S., that were relevant
-HOLDING: merely placing a product into the stream of commerce is not enough for PJ, even if D knows the
product will end up in the forum; PJ only exists if D engages in other activities specifically
directed at the forum such as advertising or providing service for the product
c. Internet Cases whether someone who views a web site may sue the person who operates the site in the
viewers home state (depends on type of website)
i. passive site: site that may only be viewed (viewer cannot submit info) never PJ
-exception: site contains material clearly directed at another state (such as defamation of a particular
person)
ii. active site: site where viewer may input info and enter into transaction clearly constitutes a contact with
the viewers state
iii. interactive site: site lies somewhere in between passive and active (viewer inputs info but does not enter
into a transaction) court looks to all the circumstances (level of activity, whether the sale is commercial
in nature, etc.)
-Pavlovich v. Superior Court (2002) p. 118
-FACTS: P is a resident of TX. P does not reside or work in CA. Neither P nor his company has solicited any
business in CA or has any business contacts in CA P was the founder of the LiVid video project;
its site consisted of a single page with text and links to other websites. The site only provided
information; it did not solicit or transact any business and permitted no interactive exchange of info
between its operators and visitors LiVid posted the source code of a program named DeCSS on
its site DVD Copy Control Association, Inc. was the manufacturer of DeCSS. DVD Copy is a
nonprofit trade association organized under the laws of DE with its principal place of business in
CA. DVD Copy alleged that P misappropriated its trade secrets by posting the DeCSS program on
its site; P filed a motion to quash service of process, contending that CA lacked jurisdiction over his
person. TC denied Ps motion
-HOLDING: P asserting a claim based on specific PJ against a non-resident D performing no business in the
state must point to contacts that demonstrate that the D expressly aimed its tortious conduct at
the forum state
-PJ was improper b/c P could not have known that his tortious conduct would hurt the corporation in CA
when the misappropriated code was first posted, his knowledge of the existence of a licensing entity
could not establish express aiming at CA
-when determining whether specific jurisdiction exists, courts consider the relationship among the D, the
forum, and the litigation. Merely asserting that a D knew or should have known that his intentional acts
would cause harm in the forum state is not enough to establish jurisdiction
-DISSENT: by intentionally posting an unlicensed decryption code of DVD Copys product on his website, Pl
was not merely aiming his conduct at specific persons or companies, but an entire industry. Thus,
b/c P knew that at least 2 of the industries companies were located in CA, his tortuous conduct
could be said to be aimed at the forum state
E. Cases outside of minimum contacts framework:
1. Domicile PJ may be exercised over a person who is domiciled within the forum state, even if the person is
temporarily absent from the state
2. State of incorporation
-If D is out-of-state, the minimum contact test is whether D purposefully availed itself to forum state
-fact that product finds its way to forum state NOT enough (World-Wide Volkswagen)
-marketing is enough (World-Wide Volkswagen)
-knowledge of in-state sales enough (Asahi but failed unreasonable exception)
3. Presence allows jurisdiction over anyone who was served while present in the state, regardless of residency
-Burnham (1990) p. 139
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-FACTS: PNJ, visited SoCal on business, after which he went to visit his children in the SF, where his
wife resided. Upon returning the children to his wifes home, P was served with a CA court
summons and a divorce petition. P made a special appearance in CA for the purpose of filing a
motion to dismiss on the ground that the court lacked PJ TC denied the motion; AC denied
mandamus relief
-HOLDING: PJ based on in-state service is acceptable
-forum state had PJ over petitioner after he was served with process while temporarily in the state for
activities unrelated to the pending divorce action
-Scalia: long tradition of exercising jurisdiction over people who were present was enough to show
practice complied with traditional notions of due process. Thus, it was unnecessary to apply
the minimum contacts test (test for people who were NOT present)
-Brennan: minimum contacts test should apply; however, Ds voluntary presence + service while he
was present = general jurisdiction
-Steven: dispute was very easy case and that PJ was present
-NOTE: holding does not apply when Ds presence in forum is not voluntary although PJ would still be
acceptable under Scalias view, the presence would no longer count as a contact, and therefore
general jurisdiction under Brennans view is not available
4. Consent b/c PJ is a personal defense, party may waive it
a. if a party consents to a courts jurisdiction, it is unnecessary to evaluate minimum contacts
b. a party may expressly consent such as through a K specifying disputes may be heard in specific courts
c. implied consent occurs when a party takes actions that are inconsistent w/ his argument that he does not
want the court to hear his claim
i. P who files suit in a forum consents to PJ for all matters arising out of that lawsuit
ii. D may waive objection to PJ by fling other claims/defenses first
C. Challenging PJ:
a. Generally
-12(b)(2) motion have to file in pre-answer or waive forever
b. Step-by-Step:
i. Is the assertion of PJ constitutional?
ii. Is there notice?
-Does it satisfy the state long arm statute? (out-of-state Ds)
c. Notice
-notice: P gives notice of a pending action when she serves the summons and a copy of the complaint on
D; the summons commands D to answer Ps complaint within a fixed period of time
-constitutional requirement DPC requires that D receive adequate notice of the litigation (a judgment
w/o notice is invalid)
-contacts and notice are not substitutes; due process requires both
-acceptable means of notice:
1. Service by publication is only viable when the whereabouts of D is not known and cannot be
ascertained with reasonable effort
2. Other means: first-class or certified mail, service on the secretary of state with instructions to
deliver it to D, or service to an adult who works/resides at Ds residence, email
-long-arm statute: allows service on an out-of-state D
1. Most statutes allow for service of out-of-state Ds only in situations enumerated in the statute
-Gibbons v. Brown (1998) p. 171
-FACTS: P was driving with D and Mr. Brown, in Canada. P allegedly gave faulty directions
to Mr. Brown, who was driving, resulting in him driving down a one-way street
that injured both passengers P, a TX resident, sued Mr. Brown in FL Two
years later, D (Mrs. Brown) brought FL action against P to recover for her injuries
(D alleged that P subjected herself to PJ in FL b/c P brought the prior lawsuit; P
claims that the provisions of Mrs. Browns complaint were inadequate to satisfy the
long-arm statute)
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