I.

OVERVIEW
A. Constitutional Basis for Jurisdiction:
1. Article III: Sets up the Federal courts. 1 establishes Supreme Court and inferior
courts as Congress ordains. 2 sets limits on the Federal judicial authority
(jurisdiction), providing for diversity clause to allow for diversity of citizenship.
(a) Article III courts Supreme Court, Appeals Court & District Courts (judges have
life tenure) 11 circuits + DC circuit + Court of Appeals for Federal circuit for
specialized courts (13 total)
(b) Non-Article III courts bankruptcy, tax, etc (enacted by Congress under Article I
powers of constitution) (judges do not have life tenure)
2. Article IV 1: Full faith and credit is afforded in each state to judicial procedures of
another state. Dont hang your hat on this.
3. Article VI: Supremacy clause (constitution and federal laws overrides all state laws)
4. 14th Amendment 1: Due process clause. No state shall deny any person of life,
liberty or property without Due Process of the law.
(a) Personal jurisdiction was created as a result of this clause (Pennoyer v. Neff:
made personal jurisdiction part of the constitution).
(b) Also see 5th Amendment for another due process clause
5. Model of Constitutional Doctrine
(a) Text > Goal > Legal Test (=) [Legal Standard > Rulified Standard]
(i) take constitutional text
(ii) goal (elaborate with greater specificity where text is going gives guidance
but not sufficient guidance)
(iii) operative legal test for specific guidance
(i) legal standard (broad)
(ii) rulified standard (narrow)
II. PERSONAL JURISDICTION pg 65-189
A. What is Personal Jurisdiction?
1. Set of restrictions that limits a courts ability to make you litigate in that court
(a) Its a constitutional limitation
2. Limited by due process clause in 14th Amendment of constitution applies to state
courts and 5th Amendments due process clause applies to federal courts.
3. Mechanics of challenging personal jurisdiction
(a) dont appear (Pennoyer), take default judgment and collaterally challenge
when enforcement is fought (in jurisdiction where you are)
(i) then you say dont respect that judgment because that court didnt have
jurisdiction over me
(b) directly challenge it (best way).say you dont have jurisdiction over me
(i) Rule 12(b)
(i) every defenseshall be asserted in the responsive pleading (answer)
thereto if one is required, except that the following defenses may be
made
1. lack of personal OR (b)(2)
2. subject matter jurisdiction (b)(1)
3. either in answer or in pre-answer motion or special appearance
a. Special appearance not permitted in all states
(ii) if you forget to raise a challenge to personal jurisdiction?
(i) Treated as a waiver per 12(h) and (g) (youre screwed)

1. But not all pre answer motion defenses will waiver personal
jurisdiction. Only those included in Rule 12 will waiver personal
jurisdiction.
4. Choice of forum clauses are often not enforceable if they are unconscionable (K law)
since youre giving away constitutional rights
B. Origins
1. Pennoyer v. Neff (1877) US Supreme Court P 66 PJ in suit by ex lawyer in OR
(a) Pennoyer noted two types of actions with different processing requirements.
(i) In Personum Jurisdiction power over the person
(i) Court CANNOT obtain in personum jurisdiction over a person by a mere
publication of process
(ii) For jurisdiction, there must either be consent OR presence and service
of process
1. Presence means physically present + the service of process when
you are physically present
a. disjunctiveyou only need consent OR presence
(ii) In Rem Jurisdiction power over the land
(i) Can attach property in state in absence of in personum jurisdiction if the
action is about the property
(ii) Court CAN obtain in rem jurisdiction by publication of process
(iii) Assumed in attaching the property that the person who owns the property
will get consent. (attachment is legal term for an officially sanctioned
seizure of property)
(iv) Must attach the property before the law suit
(b) Court developed three-part legal standard for jurisd based on 14th Amend
(i) Consent (waive personal jurisd. defect), OR
(ii) Presence (regardless of purpose) AND service of process (must be service
of process when you are physically present) OR
(iii) in rem attachment of property before suit
(c) Pennoyer court understands state power to be territorialist, based on geographic
borders of that particular state. See * on pg 67.
(i) For the territorialist conception of state power, the way the state gets power
over the property of a non-resident is in rem jurisdiction.
(d) Pennoyer provided this rule doesnt apply to divorce
(e) Quasi-in-rem jurisdiction: says as long as there is property out there that could
be attached, that was enough to grant court jurisdiction. Could be personal or
real property. Expands reach of in rem to beyond just property. Grew between
Pennoyer and Shoe.
(f) Modern Pennoyer
(i) Consent first held that corporations could be subject to service only where
they were incorporated
(i) Later held they could operate outside the state that created them, but the
host state could impose conditions on outside corporations
1. Condition was often requiring consent (express of implied) to
jurisdiction
(ii) Less clear as applied to persons; some states made specific laws that
would require implied consent to jurisdiction (when driving on roads)
(ii) Presence
(i) Corporations do not always have to have a physical existence that
permits personal service where it is located
(iii) Courts used same test for presence and consent (doing business)

C. Constitutional Power
1. Redefining Constitutional Power
(a) International Shoe (1945) pg 80 - PJ from workers comp claim in WA
(i) Court changes legal standard of presence and consent to minimum
contacts and substantial justice and fair play (pg 82)
(i) These new concepts are essentially based on the notions of presence and
consent, as minimum contacts can be seen either as a form of presence,
or as implied consent to jurisdiction
1. Court could have come to the same outcome in Shoe using Pennoyer
legal standard (given Shoes employees in WA), but it changed the
legal standard because they felt its more logical
a. Abandons Pennoyer territorialist approach
(ii) Shoe tells us:
(i) Due process requires only that in order to subject a to a judgment in
personum, if he is not present within the territory of such forum, he have
minimum contacts with it such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice
(ii) Presence/minimum contacts requires only that the activities of the
corporation to have been continuous and systematic there, and give rise
to the liabilities sued on (casual presence without min. contacts is not
enough, but it was enough in Pennoyer)
(iii) Created sliding scale high level of activity supports PJ for all claims,
low level only for claims related to activity
(iii) Bottom line absent presence, consent, or in rem, court can still assert
jurisdiction. Shoe replaces presence from Pennoyer with minimum contacts.
(iv) Importance of the ruling is that it extended IS to cover individuals as well as
corporations.
(v) Rulifying Shoes new legal standard:
(i) minimum contacts AND
(ii) traditional notions of fair play and substantial justice
1. Rulification of this amorphous standard
1. estimate the inconveniences
2. are there continuous and systematic activities?
a. are these activities related or unrelated to the
lawsuit?
3. does the would-be defendant exercise the privilege of
conducting business in the state?
(vi) Shoe altered legal test applied, but unclear how far-reaching changes were
(brought us to Schaffer case) did it only apply to in personum or to all of in
rem? Unanswered for 30+ years. Answered by Shaffer
(vii) McGee v International Life Insurance further liberalized Shoe to one
who does business in the state even if not physically present. Some argue
this is extreme and not good law.
1. All minimum contacts needs is to be a single isolated act
2. As long as the claim relates to the act, you meet the requirements of
International shoes
2. In Rem Jurisdiction
(a) quasi in rem: not exactly this but close enough that, as long as there was property that
could be attached, that was enough to give jurisdiction even if not related
(i)

(b) in rem: property is related to matter of lawsuit

(c) Hanson v. Denckla (pg 90) tells us in each case it is essential there be some
act by which the purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws
(i) Minimum contacts must have occurred by some ACT by which the
defendant purposefully availed itself of the privilege of conducting
business in the forum state
(ii) Compared to McGee:
a. McGee: There was contact AND an act (ins so called franklin) =
minimum contacts
b. Hanson: There was contact but NO act (trust did not reach out to
Donner) = No Minimum contact
(d) Shaffer v. Heitner (pg 93) suit of officers/directors of DE corp. by shareholders
(i) Court says presence of property almost per se (automatically) provides
minimum contacts if the property itself is the source of the underlying
controversy
(ii) Answers question post-Shoe.does Shoes minimum contacts approach
apply to in rem proceedings? Yes. True in rem proceeding will still be legit
after Shoe presence of the property is sufficient.
(i) Now in rem jurisdiction must have minimum contacts
(ii) No minimum contacts if property is unrelated to the litigation
(iii) In rem Pennoyer rules substituted with Shoe rules
(iv) Basically rejects quasi-in-rem (attaching property w/o relation)
(iii) To get personal jurisdiction (in personam) from property (in rem),
property must be related to the matter. Minimum contact test.
(i) modern in rem if using this approach, judgment will be limited to value
of property
3. Specific Jurisdiction
(a) Jurisdiction exists for specific claim in question but not necessarily for other
claims
(b) World-Wide Volkswagen Corp. v. Woodson pg 103 Audi car accident in OK
(i) s purported contacts with the state (the Audi) are linked to s claim
against s s claims arise out of s purported in-state activities
(ii) Minimum contact requirement has dual purpose : Protecting (protect
against burdens of litigating in distant or inconvenient forum) and Stateprotecting (allow each state to try appropriate cases in its courts but not reach
beyond its limits)
(iii) Difference between selling goods in one state that can be taken to another
state and putting something in the stream of commerce where you either
directly or your middle man sells your product in another state if done on a
regular basis. Sale in secondary market not addressed in this case, though.
(iv) Standard for specific personal jurisdiction: Minimum contacts
doesnt rulify because there are too many factors (as a result, no crisp
rule for minimum contacts):
(i) Foreseeability that defendants conduct and connection with the forum
state are such that he should reasonably anticipate being hauled into
court there.
(ii) Purposeful availment of privileges and benefits of conducting activities
in the forum state (allows certainty for entity to plan for liability with
insurance, elect to stop doing business in forum)

(iii) Action of the defendant must be purposefully directed into the forum
state, and is not merely one isolated occurrence (or stated otherwise, the
purposeful injection of the product into interstate commerce). See pg 107
(iv) Reasonability in requiring the defendant corporation to defend their
particular suit in the state forum (protects defendants & states interests)
1. including the forum states interest in adjudicating that dispute;
2. the plaintiffs interest in obtaining convenient and effective relief, at
least when that interest is not adequately protected by the plaintiffs
power to choose the forum;
3. the interstate judicial systems interest in obtaining the most efficient
resolution of controversies;
4. and the shared interests of the several states in furthering
fundamental substantive social policies
(c) Burger King Corp. v. Rudzewicz (pg 112) BK sued MI franchisee in FL
(i) Rule 4(k)(1) to know what federal courts power is with regard to federal
jurisdiction, look to state law that defines personal jurisdiction (federal incorporation
of state law)
(i) when in federal court, look to 4(k)(1) to see what the state law says about
personal jurisdiction (if it construes it more narrowly than federal law)
(ii) even if you dont have min contacts, if reasonable and fair, you can still assert
personal jurisdiction
(iii) What is the basis of the federal courts subject matter jurisdiction? Trademark. Its a
federal question case. So why does the court analyze this as a Rule 4(k)(1) question
as opposed to a Rule 4(k)(2) question? Because there was state jurisdiction
elsewhere. 2 only kicks in when D isnt subject to jurisdiction in any state. In that
case, federal courts will have jurisdiction over a person for claims arising under
federal law (not in diversity circumstances; must also be a federal claim)
(iv) Minimum contacts established because franchisee signed agreement with and would
have a 20 yr relationship with franchisor headquartered in FL. On the surface,
appears to be tenuous for minimum contacts, though.
(v) BK rule: Where a forum seeks to assert specific jurisdiction over an out of state
who has not consented to suit there, this fair warning requirement is
satisfied if the has purposefully directed his activities at residents of the forum
and the litigation results from alleged injuries that arise out of or relate to those
activities
(vi) Legal Standard:
(i) Minimum contacts / avail themselves of benefits of forum and
(ii) Reasonableness and Fairness
1. Factors
a. Burden on D
b. Interest of the state
c. Interest of the P
d. Efficient resolution
(iii) (if contacts are low, may have enough reasonableness and fairness to get
jurisdictionbut still need some contacts)
(d) Pavlovich v. Superior Court pg 118
(i) RULE: A court may exercise specific jurisdiction over a nonresident
defendant only if
1. 1) has purposefully availed himself of forum benefits
2. 2) controversy is related to or arises out of s contact with the
forum, and

3. 3) the assertion of personal jurisdiction would comport with the

fair play and substantial justice.
(ii) What is purposeful availment? See the Supreme Courts Effects Test
does D know effects of action will primarily fall within the forum? A
rulification of reasonable foreseeability
1. Are contacts such that person should reasonably foresee being hauled
into court there?
(ii) CA court here seems to think purposeful availment is the only requirement;
not sure why, but availment is just rulification (and only one of the many
possible rulifications) of reasonable foreseeability
(e) J McIntyre Machinery, Ltd. V Nicastro (pg 124) English company selling heavy
equipment in US
(i) Precedential value not clear since majority was 6, with 2 justices deciding
just on facts it wasnt in stream of commerce giving a concurring opinion
(not enough volume for minimum contact) and 2 dissenting. See portion of
opinion on pg 129. This type of opinion creates uncertainty. Lower courts
may use opinion but only if they can get similar facts (eg. low sales volume).
(ii) Overrode the Asahi verdict which held PJ over a foreign manufacturer if

it knows or reasonably should know that its products are distributed

nationwide system that might lead it to be sold in all 50 states
Foreseeability that product may make it to state in question is not
sufficient.
(iii) Must specifically target the market in the forum to establish PJ simply
putting product into steam of commerce is not enough. This modifies WW
Volkswagen.
1. Stream of commerce: If I put my goods as a company into Amazon
or such company, I know it will go in a stream to various areas
4. General Jurisdiction
(a) When can be subject to jurisdiction for ALL claims, even those without any
connection to the forum state
(i) Corporations headquarters, place of incorporation, place of primary
operations (maybe up to two if spread out but no more)
(ii) Individuals residence
(b) s claim against has no specific relationship to s in-state activities
(c) There will always be a forum in which suit may be brought on all claims. These
are the easy situations. Forum examples:
(i) Corporations (state of incorporation, headquarters)
(ii) Individuals (state of domicile/residence)
(iii) Relaxes the relatedness requirement if you have significant contacts
(iv) When s activities in the state are so substantial and continuous that she
would expect to be subject to suit there on any claim and would suffer no
inconvenience from defending there.
(d) Goodyear Dunlop Tires Operations, SA v Brown (pg 132) tire in France made
by subsidiary with no operations in US sued by US citizen in NC injured in
France
(i) Is foreign sub of American company assigned general jurisdiction

from American parent? Not without piercing corporate veil. Mere

sales made in the forum state by foreign entity, even if occurring at
regular intervals, are not enough to establish specific jurisd. D didnt
target forum for sales.
6

(i) General jurisdiction can be created by a significant facility in a

state owned by that company. Probably has to be the biggest

facility for the company. Corporations can have maybe a couple,
but not 30.
1. See Perkins case referred to in Goodyear Phillipine company
with no activity in Phillipines. President had office and records
in OH.
(e) Burnham v. Superior Court pg 139
RULE: Most of the time, physical presence will generate PJ, regardless of
purpose. Law is unsettled whether presence in and of itself is sufficient
(without minimum contacts) - jurisdictional differences based on different
readings on this decision. Majority applies both tests and say outcome is
same under two tests (more heavily weighting Shoe). PJ could be
challenged, though, based on this decision.
Physical presence and must be served is the rule
(i) Scalia 4:
(i) Tradition in America says physical presence is enough (Pennoyer)
(ii) Fairness concept applies only to property and non-present people
(iii) Representing Shoe as a continuation of Pennoyer (Shoe thought of itself
as a break from Pennoyer)
(ii) Brennan 4: Shoe applies to presence Agreed on facts that PJ applies in this
case but only because D availed himself of benefits of state.
(i) But presence, according to subsequent case law, implies it cant be
fraudulently obtained (wife calls ex-husband and tells him to come to CA
for sick kid) since, under Shoe, doesnt comport with fairness
1. As a practical matter, only difference between Scalia and Brennans
approach is fairness and justice whether its needed for PJ to apply
in this case
(iii) Physical presence can be thought of as a form of general jurisdiction
(authorizing a claim unrelated to your physical presence) to the extent
Burnham Scalia approach is dominant.
(i) Doesnt apply to corporations (corporate officers presence in a state
doesnt trigger general jurisdiction in state to corporation but could to
corporate officer w/r/t a derivative Greyhound suit)
D. Consent as a Substitution for Power
1. Real consent: a specific agreement to submit to jurisdiction valid for PJ
2. RULE: consent is an independent basis for a court to impose personal
jurisdiction (even without minimum contacts, presence, etc.)
3. How can you give consent?
(a) Forum Selection Clause (a contract) but not always respected (if it is
fundamentally unfair or if it violated contract law as unconscionable or against
public policy) (Carnival Cruise Lines v. Shute p149)
(i) Carnival was admiralty (federal) law so technically only applies to admiralty.
It is persuasive elsewhere. Admiralty is different because issue is on water
so incident not in a forum (no specific jurisd). Must address fundamental
fairness hurdle to apply.
(ii) Carnival didnt rule on notice issue, though, so proper notice must still occur.
(iii) Many courts in non-admiralty matters, in upholding forum selection, will cite
to Carnival (majority position)

(iv) Also must analyze efficacy within context of state contract law (adhesion), if
applicable
(i) Adhesion contract is a matter of state law
(b) Answer complaint but do not raise defense of PJ (waiver of this defense is
consent to jurisdiction)
(c) Just decide to litigate there (Burnham tells us an individual can allow herself to
be sued by a court in a state where she has no contacts)
(d) In addition to forum selection clauses, consent to jurisdiction clause, are choice
of law, arbitration and cognivit clauses these arent consent clauses (although
choice of law can be inferential for minimum contact)
(i) Cognivit clause waiver of right to litigate (most constitutional rights can be
waived) might be limited by state contract law
4. If you have PJ through other means (minimum contacts), consent is irrelevant.
E. Notice
1. 2 basic means of notice:
(a) waiver of service inexpensive and informal
(i) mailing defendant complaint forms 1A and 1B
(ii) if mails back signed 1B, case proceeds
(b) summons expensive and formal
(i) if D refuses to cooperate
(ii) draft, take to clerk of court for signature, then deliver in authorized way by
Rule 4 (federal marshal or private process server)
2. Mullane v. Central Hanover Bank & Trust Co. pg 156
(a) STANDARD: For due process, notice must be reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the
action.
(i) Additional guidance from the cases facts to start to rulify standard:
(i) The form chosen is not substantially less likely to bring home notice than other of
the feasible and customary substitutes very fact centered
(ii) Publication plus sometimes may suffice where theres a large # of benes
1. Actual mailing to addresses of beneficiaries whose addresses are known
2. Publication alone, where addresses cannot be identified with due diligence
(iii) For smaller number of benes, service may be required
(iv) In non-class action context, notice is always required (see Rule 4)
(b) In relation to Pennoyer:
(i) Pennoyer notice by publication is sufficient where property is first seized
OR where the object of the action is to reach and dispose of property in state
(ii) Mullane due process requires notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action
(c) Modern Mullane has been generalized outside its circumstances. Due process
can occur if a court asserts power over a who has not actually received
notice (if efforts were reasonable based on circumstances)
3. Service of Process establishes jurisdiction IF:
(a) Rule 4(k)s 4-tiered approach:
(i) 1(a) federal court has jurisdiction that is equivalent to state court of general
jurisdiction in the state in which judicial district is located, PLUS
(ii) 1(b) - 100 mile bulge from place of issuance of summons for parties joined
under rules 14 or 19, PLUS
(i) Means strategically if you are a trying to choose between state and
federal court and you have multiple parties you might be joining, it gives

4.
5.

6.

7.
8.
9.

you a plus for the federal court because it may have more extensive
personal jurisdiction
(iii) if federal legislation specifically provides broad, national personal
jurisdiction for federal courts, PLUS
(iv) subject to constitutional limits, if its a claim arising under federal law and
there are sufficient contacts with US but not sufficient contact with any
single state to generate personal jurisdiction, federal courts can maintain it
Federal Service Method Rule 4(e) proper services methods based on underlying
law for court in the state in which federal district court is located, or permissible
federal methods
Service of Waiver: Rule 4(d) cheapest way to commence a law suit
(a) after drafting and filing complaint (Rule 3) MAIL by 1st class mail (or other
reliable means)
(i) 2 copies of notice of action + 2 copies of request for waiver of service + the
complaint. The letter also must inform of consequences of compliance and
failure to comply, and be dated. See 4(d)(2)(A)-(G)
(b) if you dont waive, cost may be assigned to . See 4(d)(2) & 4(d)(5)
(c) Shouldnt avoid service because you think case has no merit (not good faith
failure to comply)
(d) If you waive service you arent waiving right to contest PJ. Only waiving 12(b)
(4) and 12(b)(5) defenses.
(e) Carrot and stick 4(d)(1) avoid unnecessary expense of serving
(i) 4(d)(2) D pays cost of subsequent service if original is refused w/out cause
(ii) 12(a)(1)(A)(ii) Extends time to answer if you waive service
What to do with defendants who avoid service?
(a) Rule 12(m) allows plaintiff to extend 120 day service period for cause
(b) 4(d)(1) D has to duty to avoid unnecessary expense of serving, allows shifting
cost to defendant (but can only do so after he is served)
Rule 12 Defenses and objections when and how presented by Pleading or
Motion Motion for judgment on the Pleading.
1391 Venue
Statute of limitations may run until service is done (jurisdictional).
(a) Per Rule 3, for federal actions, when complaint is filed.

F. Self-Imposed Restraints on Jurisdictional Power

1. Long-Arm Statutes
(a) Statutes that authorize courts to reach beyond their own borders
(i) Some states enact them to reach as far as the constitution allows (not more or
itll be unconstitutional); other enact them limiting jurisdiction to specified
occurrences
(i) Rationale for limiting: saves litigation costs, and there are many things a
state may not have interest in
(b) To establish in-personam jurisdiction over a non-resident: (Gibbons) pg 171
(i) The must allege sufficient jurisdictional facts to bring the within the
coverage of the long-arm statute.
(ii) Sufficient minimum contacts must be shown to comply with the
requirements of due process.
(iii) Absent the FL long arm statute, suing someone in a forum may be sufficient
for minimum contacts under due process clause.

(c) Rule 4(k)(1). Federal district court looks to the state long-arm statute for PJ (with
exceptions noted in (1)(B) joinder within 100 miles (& meet constitutional PJ
rules) & (1)(C)- if authorized by federal statute)
(i) Have to be aware of state long-arm statute even if you sue in federal court
(d) Rule 4(k)(2) Federal question jurisdiction (as opposed to diversity) district
court has PJ exclusive of long arm rules if no state court has PJ and asserting PJ
complies with constitution
2. Venue 1391 (entirely statutory not constitutional)
(a) Place of trial
(b) Most states allow case to be brought where either party resides, where the claim
arose, or where the is doing business
(c) Suit is open to s challenge unless it has SM jurisdiction, Personal jurist, and
venue
(d) Jurisdiction decides proper STATE for trialvenue decides proper district within
the state for trial. Venue therefore acts as a localizing principle, important in big
states like TX and CA.
(e) Venue challenge is a 12(b)(3) challenge if you dont use it when challenging
other Rule 12 items, you lose it.
(f) 1391:
(i) (b)(1): venue in judicial district in which any defendant resides if all
defendants are residents of the state(applies to non-diversity jurisdiction)
(ii) (b)(2): venue in judicial district in which a substantial part of the events or
omissions giving rise to claims occurred
(iii) (b)(3): if no other district works, venue in judicial district in which any
defendant is subject to PJ (fall-back)
(i) roughly speaking, they say that if you dont have venue otherwise, then
any district in which there is personal jurisdiction will serve as venue
(iv) (d) corporation can be sued wherever it has PJ & resides in every district in
state of incorporation
(v) 1391(c) defines reside as where a person is domiciled
(i) 1391(c)(3) non-resident alien has venue in every district in US (green
card holders are permanent residents)
(vi) Post-Burnham, could argue an individual may not be found in a district
where personal jurisdiction is unavailable; being served in that district is
enough for PJ
(g) Dee-K pg 176 Need PJ, Service of Process and Venue
(i) Court has PJ over the per Rule 4(k)(1)(C) and minimum contact is
established since directing goods to US),
(ii) Service of process: 1) point to a statute that authorizes the service of process
over the in this case Clayton Act) and 2) the service of process pursuant to
the specified statute or rule must comport with due process).
(iii) Next look to whether there is venue under 1391(b)(3) an alien may be
sued in any district (still must meet PJ test, though, in that venue). Main
take-away: PJ analysis is distinct from venue analysis.
(h) 1390(c) - No venue analysis regarding cases removed to federal court; venue
lies in judicial district that encompasses the state court from which the case has
been removed
(i) States will have state venue statutes (which are relevant for state court) not
relevant for federal court
3. Declining Jurisdiction

10

(a) Forum Non Conveniens common law doctrine leads to dismissal w/out
prejudice (must re-file paperwork) applies to federal and state courts
(i) Federal Court will not grant if more convenient location is in US and
venue can be transferred (see below)
(ii) Court normally makes dismissal conditional on counterpartys SOL waiver or
not challenging PJ in other forum
(iii) Piper Aircraft v. Reyno pg 181 plane crash in Scotland
(i) Pipers Legal Test: Plaintiffs forum choice given great deference, but
may be overridden upon a balancing test: Balance s choice v. private
interest of AND public interest of court court didnt rulify, just noted
factors
(ii) Plaintiff has substantial power of litigation but there are many common
law and statutory ways to move forum: eg. Forum non convenien
1. When an alternative forum has jurisdiction to hear a case and when
trial in the chosen forum would establish oppressiveness and
vexation to a out of proportion to s convenience, OR
2. When the chosen forum is inappropriate b/c of considerations
affecting the cts own administrative and legal problems, the ct will
decide whether to dismiss based on following factors.
a. Private factors: Relative ease of access to sources of proof; availability
of compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; possibility of view of
premises, if view would be appropriate to the action; and all other
practical problems
b. Public factors: court congestion; local interest in having localized
controversies decided at home; the interest in having the trail of diversity
case in a forum that is at home with the law that must govern the action;
the avoidance of unnecessary problems in conflict of laws, or in the
application of foreign laws; and the unfairness of burdening citizens in
an unrelated forum with jury duty.
(iii) Forum non conveniens is very rare and difficult to win court has discretion
1. Consideration of motion will create a mini trial because its so fact intensive
(b) Transfer between federal courts statutory doctrine leads to new venue
(all filings remain intact)
(i) Federal ct. can transfer to another fed. ct, but not to a state court state
courts can transfer to other state courts under state rules, but not to
federal court
(ii) While transferor may not have proper venue or PJ, transferee Court
must have proper venue and PJ
(iii) 28 U.S.C. 1404 Change in venue (from court with venue and PJ to
another with PJ and venue)
(i) When concerns of convenience and in the interest of justice (a)
(ii) Upon motion, consent, or stipulation of all parties Court has discretion
(iii) Governing law doesnt change use that of transferor court
(iv) 28 U.S.C. 1406 if a claim has been filed in the wrong venue, fix it by
dismissal or transfer (if in the interest of justice)
(i) Governing law does change use that of transferee
(v) 28 U.S.C. 1631 cure defect in personal or diversity jurisdiction (not for
subject matter because if one federal court doesnt have it then another wont
either)
(vi) 28 U.S.C. 1407 consolidating multidistrict litigation

11

III. SUBJECT MATTER JURISDICTION

A. Idea and Structure
1. 1331 grants fed courts jurisdiction over cases that arise under Federal law. However,
note that they do not have exclusive jurisdiction over such cases.
(a) 1338 lays out cases which are granted exclusively to Federal jurisdiction
2. Two Types:
(a) General Jurisdiction State Court
(i) Can hear any kind of claim between any persons unless legal authority says
otherwise
(ii) All states have at least 1 court of general jurisdiction
(b) Limited Jurisdiction Federal Court
(i) Can only hear cases that are specifically authorized by the statues that set up
the particular court
(ii) All federal courts are of limited jurisdiction (Congress decides the exact
subject matter for federal courts)
3. SMJ of federal courts based on 2 kinds of considerations:
(a) Nature of the claim arising under constitution, laws of US
(b) Diversity of Citizenship of the parties
4. Federal court can dismiss for lack of SMJ at any time in proceeding
5. SMJ cannot be waived like PJ
6. Purely family matters (divorce, wills, probate) will always be purview of state court
(even if parties have complete diversity)
7. Federal v. State Courts
(a) Practical differences why do we care where they file?
(i) Backloads federal have less than in state, so federal is generally faster
(ii) Evidentiary and other procedural rules
(i) States have adopted most but not all federal rules of civ pro
(ii) Very different evidentiary rules
(iii) Strategy - If files in state court and could have filed in federal: has the
right to remove the case from the state court to federal - loses control over
jurisd. If P files in fed, D cant remand to state (if fed has SMJ).
(iv) jury pool a function of the size of judicial districts states cover less
geography than federal
(i) if you want a jury favorable to your client, you may want to file in a
particular area geographically
(v) are federal courts and state courts equally reliable institutions or is one more
reliable than the other? Parity or differing?
(i) Sensitivity with respect to different types of law
1. federal courts more sympathetic to federal claims or vice versa
(ii) competence
1. are federal judges more competent that state judges? Probably
a. how do you define judicial competence?
2. most state court judges are elected, whereas all Article 3 judges are
appointed and have a lifetime tenure
a. what does this mean? Some litigators will say you should trust
the feds more because they are insulated from political
pressuresome will say the opposite because state court judges
are accountable to an elector
(iii) boldness in making new law question as to which court is more likely
to push the envelope and advance state or federal law?

12

1. state courts do make new federal law sometimes and federal makes
new state laws sometimes
2. obviously going to be a function of the personalities of the judges
that sit in the places you are considering your litigation
B. Federal Question Jurisdiction no dollar limit
1. The key provision of 1331 gives district courts jurisdiction over cases arising
under the Constitution, federal law (mostly statutory), or federal treaties
(a) Narrower than Supreme Court standard under Article III, Sec 2
(b) Settlement of a federal claim (without a consent decree) is a state contract so a
violation of this is not a federal claim
2. State claim with a federal element if federal issue is substantial, federal court
can hear claim (Grable & Sons Metal Prod p 201), determined as follows does state
law claim:
(a) Raise a federal issue?
(b) Is issue actually disputed and substantial?
(c) Would having fed court hear matter disturb fed & state balance?
3. Well Pleaded Complaint Rule Federal question must be on face of complaint &
must be a necessary element of Ps claim.
(a) Mottley v Louisville & Nashville Railroad pg 197 state contract dispute:
performance precluded by federal law (RRs defense)
(i) Federal court cant have jurisdiction just because the defendant might use a
federal law or the Constitution to defend himself a defense isnt listed in a
WPC )
(ii)
(b) Not a WPC even if P would then respond to defense by saying Ds defense is a
violation of due process (rebuttal not part of WPC)
(c) Arising under in statute 28 usc 1331 vs. the US Constitution article 3, it has a
different meaning. It has a narrower construction.
(d) Smith v Kansas City Title pg 201 is a narrow exception to WPC violation of
state securities law relating to federal bonds held arising under
(e) WPC rule is an objective testdoesnt look to what this particular case did, but
what would a well-pleaded complaint say
(f) WPC rule is not constitutional its an interpretation of 1331
4. WPC and Declaratory Judgments (allows a person who would have been a D in a
suit to assert their rights when theyve been wronged)
(a) Declaratory Judgment Act allows the party that would ordinarily be the D to
initiate a law suit
(i) If Ps only cause of action would have been in state court, would-be D cannot
ask for dec judg in fed court
(i) dont want people to circumvent WPC rule and land in federal court
C. Diversity Jurisdiction Const Article III 2
1. Complete diversity between each P and each D is statutorily required but not
constitutionally required rule is different for class action
(a) Parallels what we saw in arising under jurisdiction: statutory grant read more
narrowly than what is constitutionally permissible
(b) Measured on the day complaint is filed. Can dismiss, move and refile.
(c) If P files in Fed Court under diversity, stmt is required in complaint Rule 8(a)(1)
(d) 1359 cant improperly join just for purposes of creating diversity (although
courts vary on definition of improper) standard on this can be lax, though (see
WW Volkswagon)

13

2.
3.

4.
5.

6.

14

(i) No rules against destroying diversity (through moving or simply transferring

claim to a non-diverse party)
(e) If a claim against a non-diverse party is without merit, that claim will not destroy
diversity
1332 where the matter in controversy exceeds the sum of $75,000 and is between
citizens of different states or citizens of a state and citizens or subjects of a foreign
state
Foreign Parties and Diversity Jurisdiction
(a) Citizen of Mexico v. citizen of Japan? Where do you begin analyzing this?
(i) 1332(a) lists different parties who can sue each other
(i) Different states (refers to sister states in the statute, so Mexico and Japan
cant
(ii) State v. foreign state (no, because we dont have citizen of US)
(iii) In an action where it is purely foreign, there is no federal jurisdiction
under diversity jurisdiction
(iv) could still be under federal question jurisdiction
(ii) No diversity, but state could may still be available
(b) Citizen of CA vs. citizens of Mexico and Japan? Where to begin?
(i) 1332(a)(2)
(i) Is there a statutory argument against diversity jurisdiction?
1. Here we have citizens of 2 foreign states
a. Federal courts say thats not how the statute means it
(counterargument rejected)
(ii) Black Letter Law: yes, such suits can go forward
(c) Dual citizens (US and foreign) just look to US citizenship and domicile
Challenging Diversity Jurisdiction
(a) Move to dismiss under 12(b)(1) asserting absence of federal subject matter
jurisdiction
Redner v. Sanders pg 207
(a) Court grants s motion to dismiss; seeks to establish diversity based on 1332 (a)(2)
citizens of a State and citizens or subjects of a foreign state. refers to residence while
statute refers to citizenship. Must be citizen of foreign state for (a)(2) to apply.
(i) s facts not sufficient to prove he is domiciled in CA, and he presented no evidence
of what his living in France involved. Didnt prove either one!
(ii) citizen of a state determined by domicile (based on actual residence and
intent to remain doesnt matter if intent of move was to create diversity)
(i) College students who have moved to state for college generally not
considered domiciled in state since intent to remain is temporary
(iii) citizen of foreign state determined by citizenship (unless permanent
resident, then domicile)
(b) Citizen of a country oath of allegiance (citizen) vs citizen of a state
(domicile)
(c) Can still sue in state court
1332(c) corporation can have two states of citizenship: state of incorporation and
principal operations if they do, then they are not diverse w/r/t either
(a) Hertz Corp v Friend pg 214 no matter how widely diversified operations are, corp. can
only have one principal place of business its nerve center
(i) This is only for the purpose of Diversity not Personal Jurisdiction
(ii) But also must still have PJ under FRCP 4(h) for service

(b) Partnerships & other unincorporated entities (unions) arent treated as corporations
but as collection of partners must look to citizenship of each partner to determine if
there is diversity
(c) Trusts citizenship of trustee controls
(d) 1332(c)(1) insurance companies are deemed citizens of state of insured if action is
brought directly against insurance (as opposed to insured)
7. Domestic law exception diversity jurisdiction doesnt extend to divorce, alimony, child
custody (Ankenbrandt): none of these matters are heard in federal court
8. Citizenship of representatives of child, incompetent, deceased control (Hawkins v Masterson)
9. Amount in Controversy Statutory not constitutional (Congress can modify)
(a) Must be a legal certainty claim will not exceed 75k for dismissal
(b) What if asks for injunction rather than $ damages:
(i) Determine value of injunction to
(ii) Determine cost to of complying
(iii) Determine the cost/value to the party invoking federal jurisdiction
(i) if filing in federal court, the if seeking to remove
10. Claim aggregation:
(a) A single can aggregate separate claims against single D under $75k, even
unrelated claims, to get to a total over $75k
(b) Cannot aggregate 2 s claims unless they have one single claim (due to joint
ownership)
(c) Can aggregate claims by different Plaintiffs if they arise out of same matter and
at least one is over $75k (using supplemental jurisdiction)
(d) Law is unsettled if compulsory counterclaim can be added to get to $75k some
states say yes
(e) If claim is over $75k but counterclaim is under $75k,compulsory type can be
heard, permissive type cannot
D. Supplemental Jurisdiction 1367
1. Const Article 3 2 judicial power extends to all cases and controversies
(a) United Mine Workers v. Gibbs (pg 223): Article 3 gives federal courts jurisdiction
over cases, rather than claims
(b) Start the analysis:
2 part test in the case for supplemental
(i) Whether s claim is related to a federal claim (relatedness) and
(i) Common nucleus of fact Ameriquest Mortgage pg 224 (combination of
federal TIL and State fraud case) when facts underlying separate fed
and state claims combine to tell one story, supplemental is appropriate,
also relevant was they couldnt properly calculate the remedy if they
dismiss the state claim (state fraud affects remedy of federal violation)
a. Relatedness: Whether State law is related to the federal claim.
This was raised by Ameriquest mortgage.
(ii) Not excepted by 1367(b) or (c)
(i) 1367(b) if jurisd based solely on diversity, cant use supplemental jurisd
on parties joined under Rule 14, 19, 20 or 24 (includes multiple
defendants under Rule 20) see pendant party below
(ii) Limitation only applies to plaintiffs doesnt apply to cross or counter
claims see Kroger Codification of this decision
(c) Discretionary component - District Court has Discretion to Decline
(i) 1367(c) understood that when it says district court may decline, it is a
general grant beyond the 4 enumerated bases of district court discretion to
exercise supplemental jurisdiction (exercise must support the interests of
judicial economy, convenience, and fairness)

15

(i) Enumerated basis

1. Claim is novel/complex
2. State claim predominates claim with federal jurisd (based on
complexity not on damages)
3. District court dismisses all claims it has jurisdiction over
a. A district court could choose to decline sup. Claim
4. Other reasons
(ii) Complexity = uncertainty, not difficulty of application
(iii) Szendrey-Ramos pg 226 supplemental should not be extended when under
(c)(1) claim largely based in state law and it require substantial evidence to
prove or (c)(2) if sheer number of state claims far exceed federal claim
(iv) National Fair Housing Alliance pg 228 even if fed/state claims involve
evidence, the procedural rules can be so different as to destroy the value of
combining matters
2. Potential pitfall of asserting supplemental: SOL issues your claim is dismissed in
Fed court and you want to refile in state court
(a) Under 1367(d), get pendency + 30 days
(i) State may have longer tolling statute than this
(b) 1367(c)(3) Not clear if District court can exercise jurisd after federal claim is
dismissed but state law claim continues (we know they can decline to do so)
3. Single party under diversity with multiple unrelated claims if any claim is over
$75k, claims can be consolidated even if 2nd claim doesnt meet requirements for
supplemental jurisd. Under 1367.
4. Pendant Claims - independent state law claims that can be appended to federal
claims, even absent diversity jurisdiction (1367(a) Federal Question, 1367(b)
single-party diversity). Must be integrally related to the federal claims.
5. Pendant Party Claims Per 1367(a) supplemental jurisd extends to additional
parties (if claim is under state law and related to a federal claim against another
defendant) see Pg 6 Hypo on 2/12 lecture notes
(a) 1367(b) pendant party jurisdiction is less broad when jurisd is based on 1332
(diversity) vs 1331(federal question) if original claim is a state law claim based
on diversity, to add a pendant party claim, the pendant party must also be diverse
(and otherwise satisfy diversity of jurisd requirements eg $75k) still a
relatedness requirement
E. Removal 1441 to federal court if it would have jurisdiction (based on diversity,
federal question and supplemental jurisdiction)
1. P cannot request removal, even if counter-claim is filed
2. No venue analysis necessary (per 1390(c)), there is an absolute and default rule
(a) removal is to the district court of the United States for the district and division
embracing the place where such action is pending 1441(a)
3. 30 day rule: must move to remove within 30 day of service, if the case stated by
initial pleading is removable (1446(b)) diversity may occur later, though
4. 1 year rule: with respect to diversity actions only, if the case stated by initial pleading
is not removable, a case may not be removed more than one year after
commencement of the action (1446(b)), unless bad faith is involved (c)(1).
5. If multiple defendants, all Ds must agree to removal ((1446(b)(2)(a))
6. A defendant cannot remove a case on a diversity basis from the state court in which
he is a citizen 1441(b)(2) some states will waive this if plaintiff doesnt object
(a) If multiple defendants, if applies if ANY of the defendants are citizens of that
state

16

7. See pg 236 note C for discussion of manipulation of amount in dispute to effect

removal
8. 1445 limitations on removal for workers comp, violence against women act, etc
9. Removal based on diversity with following exceptions, treated as if the case
had originally been filed in federal court
(a) 1441(b) home state removal bar none of the defendants can be a citizen of the
state in which the action is brought
(b) Diversity must exist both at the time of complaint as well as request for
removal
(i) Post-filing acts by plaintiff are ignored for these purposes
(c) Caterpillar v Lewis pg 232 if case is improperly removed based on diversity
and district court fails to remand back to state, ultimate district court judgment
is valid if diversity did exist at the time final judgment was entered
10. Removal based on federal question WPC rule applies (federal claim must arise on
the face of the claim)
(a) Exceptions to WPC rule if federal law pre-empts state law (all state usury claims
are pre-empted by federal law) or its an artful pleading (crafted to avoid
federal claims when one is clearly present)
(b) 1441(c): broadens federal court jurisdiction for removal purposes whenever a
separate and independent claim or cause of action within the jurisdiction
conferred by 1331 (federal question) of this title is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be
removed
i. State law claim being joined with federal question claim
ii. Non-removable action could be a federal defense to a state question
1. Example Mottleys not allowed to bring case in federal court
because the federal issue only arose at the defense stage and not on
the face. Suggests litigation could have landed in federal f it had
been filed in state court originally, the entire suit, including the state
law claim, could have been removed to federal court under 1441(c),
even though there wouldnt have been a basis to initially file in
federal court.
2. State law claim would have been otherwise non-removable, didnt
satisfy WPC rule so couldnt file in federal, but could file because
there is a federal defense or ingredient to the claimfor purposes of
the constitution, it is a federal question
3. This does not mean it can be removed simply because theres a
federal defense to a stat claim. This would violate WPC.
iii. 1441(c) is broader than 1331.
1. To what does this apply?
2. State law that does derive from common nucleus of facts?
a. No, or else 1441(c) is superfluous because removal already
is permitted under 1441(b)
3. State law that does not derive from a common nucleus of facts?
a. Presents a constitutional difficulty: does not qualify as part
of the constitutional case
4. What is left? What can 1441(c) be referring to?
a. State law that has a federal ingredient but that wouldnt
satisfy the WPC rule

17

iv. Removal based on supplemental jurisdiction determining whether

supplemental jurisdiction works the same way as when claim was originally
filed
F. Remanding from Fed to State 1447
1. Motion to remand must be made within 30 days to federal court from filing of the
notice of removal with state court, except that there is no time limit if district court
finds it is without subject matter jurisdiction
(a) Court can and must at any time dismiss the case from its control if it does not
have SMJ, and if more than 30 days has passed since transfer to federal court,
instead of flat out dismissing the case, the federal court upon motion can send it
back to state court.
(b) Once notice of removal is filed with state court, they will take no further action
until it is remanded
2. Federal court must remand a case, prior to judgment, if it doesnt possess subject
matter jurisdiction.
(a) Caterpillar v Lewis pg 232 (see above) if removed to fed court as a result of
improper diversity jursd analysis, as long as at time of judgment, jursid is valid
based on diversity, judgment can stand
G. Challenging SMJ
1. should be done with a 12(b)(6) motion if the issue is solely a state one because if its
granted, res judicata wont allow that state matter to be retried in state court
2. When a challenges federal question jurisdiction:
(a) Is there diversity?
(b) is there a federal issue at all?
(c) if so, does it give rise to the s claim?
(d) is it sufficiently important to federalize the case?
3. Can attack claim or jurisdiction
(a) Practical question we now ask is if you are and think the has plead in the
way that does not allow subject matter jurisdiction, what do you do
procedurally?
(i) Federal rules tell us you can make a rule 12(b) motion to the court.
(ii) If you think no federal question, you have a choice1 or 6, different
outcomescan be seen as merit or threshold based
(iii) Rule 12(b)(1) move to dismiss for lack of SMJ (Fed Question or
Diversity) can refile same exact claim in state court
(iv) Rule 12(b)(6) move to dismiss for lack to state claim for which relief can
be granted cant re-file same exact claim in state court
(v) Any party, as well as court (sua sponte), can challenge SMJ
(vi) You can challenge SMJ at any time in proceeding (no time limit)
4. Collateral challenges (to challenge in a different court)
(a) Challenge SMJ and lose, cannot collaterally challenge the SM determination.
(b) appear but fail to challenge the SMJ, cannot collaterally challenge
(c) Rule 12(h)(3) basis for moving to dismiss in federal rulesstates that it cannot
be waived
(i) So how can it be true that you cannot collaterally challenge if you show and
dont challenge SMJ? A collateral challenge is after the first court has given
its judgment. If at any point the court notices there is no SMJ, it is required
to dismiss. After the judgment, your failure to raise the absence of SMJ
cannot be brought up. Value to finality.

18

(ii) The Kalb v. Feruerstein exception: the rule stated above is default.
Congress, if it wishes, can provide otherwise. In Kalb the court concluded
that the bankruptcy act divested state courts of jurisdiction during pendency
of federal bankruptcy proceeding, even where parties failed to challenge SMJ
of the state court.
(iii) Not a constitutional mattergeneral rule is no collateral challenges. Can
be overridden but generally is not.
H. Challenging Both SMJ and PJ
1. A 12(b)(2) can be very fact intensive. If you can only make a 12(b)(1) motion
(assuming you can do so through a special appearance) and not lose ability to later
make a 12(b)(2), go ahead and do it. Otherwise, dont make a 12(b)(1) motion 1 st
because you dont want to lose your opportunity to make a 12(b)(2) challenge.
2. SMJ cannot be waived. PJ can.
3. Rule 12(b)(1) and 12(b)(2) different preclusive consequences with dismissal
(a) (b)(1) federal subject matter jurisdiction will allow refilling in state court
because no judgment has been made on personal jurisdiction
(b) (b)(2) federal court determination for lack of jurisdiction has preclusive effects
for state court (will not allow refilling state court in the same state)
(i) point is they have different consequences because there is different meaning
to dismissing a lawsuit on the different criteria
4. When a court has a Rule 12 motion before it, it has discretion to dismiss on whatever
grounds it wants
IV. THE ERIE PROBLEM no federal general common law (but still have federal
common law) most common in diversity but can arise with federal question cases
A. The question is: What is the law that arises, state or federal, in a diversity jurisdiction
case?
1. 1652 state law is rule of decision unless Congress or Const. says otherwise
B. Swift v. Tyson pg 241 laws of the several states in which US courts must apply
interpreted to encompass state statutes/legislation, but not state judicial decisions / state
common law
(i) Statute is created whereas common law is identified because it already
existed in the world, Judges just identify/find it
2. Overturned in Eriewhy?
(a) Privilege of choosing the court in which the right was to be determined was
conferred upon the non-citizen; equal protection impossible and therefore
unconstitutional
(b) Rights guaranteed under common law vary according to whether enforcement
was sought in state or fed court (forum shopping)
C. Constitutionalizing Erie
(a) Erie Railroad v. Tompkins pg 244 there is no federal general common law
(i) Except in matters governed by Federal Constitution or Federal Statute,
law to be applied is law of state. There is no federal general common law
pg 246 & 251
(ii) Court ruled Swift was unconstitutional (even though it could have done it
strictly based on Sec 1652 rules of decisions) because Swift is a:
(i) Violation of equal protection under 14th Amendment theory (different
results in two courts arent equal protection), 14th Amend since ruled to
apply to fed as well as states (at the time it was just states);

19

(ii) Its problematic for fed. courts sitting in diversity to make law that
Congress couldnt make (would allow for a back door way for feds to
govern state law), such as the tort rules analyzed under Erie; and
(iii) Violation of federalism (flip side to (ii)).
(iii) Subsequent Courts interpret decision to have twin aims: discourage forum
shopping and avoid inequitable administration of law
(iv) But there is still federal common law for matters outside of state common
law, example: determination of water rights between two different states (no
federal statute on this)
(v) Federal Common Law still has to be followed by states through supremacy
clause
(vi) Forum shopping still occurs post-Erie (state to state) and procedural
differences between fed and state courts, as limited by PJ
(i) Erie has nothing to do with conflicts of law between states forum
usually applies forum law, but not always
D. Limits of State Power in Federal Court
1. Applying Erie its a choice of law doctrine to federal courts in diversity cases
governing what will be governed by common/state and which by federal law?
(a) Guaranty Trust Co. v. York pg 251 refines choice of law rule
(i) Would a state law statute of limitations apply in a federal diversity case
(ii) Outcome-determinative test
(i) Federal law governs procedure, defined as merely the manner and
the means by which a right to recover . . . is enforced
(ii) State law governs substance: question is whether the matter would
significantly affect the result of a litigation for a federal court to
disregard a law of a State that would be controlling in an action upon the
same claim by the same parties in a State court
(iii) If the outcome of a claim would be different under federal law, the
state law ought to be applied.
1. Not clear how to apply because even a font rule on a complaint can
be outcome determinative
(iii) Outcome determinative test made it easy for state law to apply in diversity
cases because almost any rule could be determinative in a particular case
(b) Byrd v. Blue Ridge Rural Electric Cooperative pg 255
(i) Under the federal regime, the jury gets to make that determination whether
worker was a statutory employee for workers comp purposes; under State,
the judge does (since it was a question of law). What law governs? This was
not a rule of federal procedure.
(ii) Modifies outcome determinative test - balance following interests to
determine if its procedure or substance:
1. The likelihood that the federal rule will substantially affect the
outcome / the inequitable administration of the law vs.
2. The federal system as an independent court system for
administering justice.
3. Court didnt provide clarity how to weigh these considerations
(iii) Doesnt eliminate use of forum shopping
(c) Synthesizing Byrd and Guaranty: Procedure vs Substance dichotomy is just
the 1st cut, then consider outcome determinative vs federal independent
court system
2. De-Constitutionalizing Erie

20

(a) Hanna v. Plumer pg 258 service of process was OK under fed rule but not state
court said fed rule can be followed even though it determined outcome
(i) Applies only when theres an available Federal Rule of Civil Procedure and
Federal Court is in diversity if theres a contrary state rule.
(ii) Two step test:
(i) If federal and state rule conflict, but not in federal rules of civil
procedure, non-Hanna Constitutional approach applies (Erie, Byrd)
soft, indeterminate, balancing of interests.
1. This is because question was not considered by Congress so Court
must do Constitutional analysis.
2. Court does not apply this test deferentially.
(ii) If federal and state rule conflicts, and applicable federal rule is in fed
Rul Civ Pro., then apply the hard-edged and determinate Sibbach
test.
1. This is because the entities that created the rule (eg. Congress and
others) have already decided these rules are appropriate to use in Fed
court, so court doesnt need to do the Constitutional analysis.
2. Therefore, the fed. Rule of Civ procedure should apply, with very,
very limited exception.
a. Proviso must ensure the federal rule of civil procedure
must comply with the rules enabling act of 28 USC 2072 (a)
(eg. doesnt exceed Congressional authority under the
Constitution and doesnt reduce rights of citizens). Ask
question is it a rule of procedure? Rules of Procedure do not
enlarge or diminish substantive rights. Dont apply the
constitutional balancing analysis.
b. This is a much easier test to satisfy than the Erie, Byrd test as to
whether something is procedural.
i. Sibbach test applies deferentially in Hanna (to creators of
federal rule of civil proc). To date, Court has never found
Rul Enabling Act to exceed Constitutional authority. Some
believe Rule 23 (class action) exceeds this scope, but never
been successfully litigated.
(iii) If federal and state rules conflict, and theres an applicable federal
statute, apply federal statute
1. Per Supremacy clause to Constitution (Article VI of Consitution)
2. Court will attempt to avoid a conflict if both can be applied, court
will see Emmanual, pg 94, Problem 51
3. Hanna and Byrd tests co-exist despite that they are different. If youre in a postHanna situation and a question arises, which do you apply? Black letter law answer
is both are used by courts. No identified single operative legal test.
4. Choosing between state laws Erie doesnt provide guidance on which states
substantive law to apply in a diversity action (that of D or P). Which states law
would be based on factors such including where did incident occur and which state is
P from.
5. Determining the Scope of Federal Law: Avoiding and Accommodating Erie
(a) Semtek Intl Inc. v. Lockheed Martin Corp. pg 266 predates most recent
revision to Federal Rules of Civ Proc. (so 41(b) is now different)
(i) 41(b) not applicable here because it doesnt have application to state court.
If the second lawsuit would have been brought in any other federal court, it

21

would be dismissed because 41(b) would not allow it to proceed. But since
the second lawsuit was filed in a State court, it is allowed to proceed.
(ii) This is a decision creating federal common law (what the res judicata effects
are of a federal courts decision in state court)
(i) Resulting rule: In a diversity proceeding, Federal Rule should
incorporate the state res judicata rule for the state which the original
federal district court was (not necessarily where case is refiled in
state court)
1. Dont look to res judicata rule for new state suit is filed in because
this would result in major forum shopping
2. They dont say the federal rule IS the state law (just based on state
law), because Justices believed claim preclusive effects of federal
decision have to be a matter of federal law.
(iii) Different than normal Erie question because this goes the other way (its
whether a State court respects federal procedure which resulted in dismissal
eg. what are claim preclusive effects?)
(i) Looked like a federal rule of civ pro applied, but court said no.
(iv) Court took pains to interpret Fed Rule Civ Proc 41(b) to get the outcome they
deemed most intentioned with Erie policy of not creating incentives for
forum shopping Res Judicata applied only in federal court for a matter
dismissed under 41(b) in federal court under diversity jurisd.
(i) Hanna question is not self-evident
(b) Choice of forum clause In state court, enforceability is a matter of contract law.
Byrd
(c) If state that treats them as enforceable and removed to federal court, must Fed
court enforce it?
(i) Stewart said federal court doesnt have to respect State court determination
under State K law. Court said Federal transfer Statute (28 USC 1404),
applies so under Hannah rule, this is federal Statute and, therefore,
procedural. 1404 gives broad discretion to federal court and forum selection
doesnt carry over.
(i) Allows parties in lawsuit to forum shop to potentially get out of a forum
selection clause.
6. Federal Substantive Common Law is unaffected by Erie. Applies to cases were US
is a party, admiralty law and international relations. If applicable, this common law
must be applied in state courts.
V. INCENTIVES TO LITIGATE
A. How much litigation? 98% is in state court. Why do we study federal rules of civil
procedure influence on state procedural rules.
1. Litigation explosion is a myth its not disproportionate to population and economic
growth
2. K suits makes up the biggest piece
B. Who wins
1. Tort suits are mostly won by Ds
2. K suits mostly won by P
C. 3 types of remedies: declaratory, substitutionary & specific
D. Substitutionary Remedies must prove not only violation of law but amount of
damages economic, non-economic & punitive
1. Compensatory Damages (determined ex poste)
(a) Ex.- expectation damages (economic) under K (limited by foreseeability)

22

(b) Ex. pain and suffering (non-economic) under tort

2. Liquidated Damages- contractually agreed to (determined ex ante)
(a) Subject to penalty limitations (not permissible if actual damages can be estimated
& must be reasonable in light of anticipated harm from breach)
3. Statutory Damages amount fixed by statute can bring claim in court or, in some
cases, administrative agency (workers comp) (determined ex ante)
(a) Ex. violation of copyright act choose between lost profits or statutory amount
ranging from $500-$20k for a negligent violation and $100k for willfull violation
4. Punitive Damages goal is to punish/deter (merge civil/criminal goals) generally
available only in tort & only when D acted intentionally or willfully (normally
intentional torts)
(a) Some jurisd allow evidence of Ds net worth
(b) Are difficult to deal with in business because they are unpredictable and may not
be insurable
(c) US Supreme Court has applied due process limits
(d) BMW v North America pg 296 amount must be based on harm inflicted and will
be reviewed using following factors:
(i) Degree of responsibility of Ds misconduct,
(ii) Disparity between actual or potential harm suffered by P and amount of
punitive
(iii) Difference between punitive award and civil penalties in comparable cases
(e) State Farm Mutual Automobile Insurance Co. v. Campbell pg 296
(i) Applied BMW test and determined ratio of 145 1 jury award was not
consistent with due process. A single digit multiplier is more appropriate
(substantive due process).
(i) This may disincentivize a D settling because down side of trial is less
(ii) May also disincentivize potential Ps from bringing suit when comp. are
low, regardless of how bad Ds behavior was
1. Silver lining actual punitive ratio has gone up since State Farm
(due to anchoring around 9:1 max). Not clear that Ps attys lost in
this decision
(ii) Noted defendant cant be punished by state for the result of a national policy
affecting parties (who arent plaintiffs) outside of the States jurisdiction
(procedural due process); but P does benefit from actions to other parties in
same state
(i) Alternatives: common fund approach, class action
(ii) Supreme court has never said inequity of awarding punitive for a large
group harmed only to those who bring suit is violation of due process
(f) Bifurcating proceedings between claim and damages some courts allow this
(i) Advantages:
(i) Trial will be shorter if theyre D is found not liable
(ii) Ds dont want evidence of damages suffered coloring decision on issue
E. Specific Remedies
1. Roots in English system of Equity (Chancery) and Specific Relief (Common Law)
eliminated by Rules of Federal Procedure (in 1938)
(a) Legal remedies you have the right to request if the substantive law allows;
equitable are only available if legal remedy is inadequate
(b) Specific Relief / Legal
(i) Replevin (recover personal property) and ejectment (from real property)
(ii) Writ of mandamus (court orders public official to perform act required by
law) ex Illinois Sec of State delivering Obama replacement appt letter

23

(iii) Habeus Corpus (order requiring official to disclose legal basis for
imprisonment)
(c) Equity
(i) If sole remedy sought is equity judge will hear case and court will have
substantial discretion (P doesnt have right to relief)
(ii) Injunction is most common equity relief
(i) Mandatory (do something) or prohibitory (dont do something)
(ii) Can be fined or jailed for contempt if party doesnt fulfill its terms
(iii) Other equity remedies
(i) Constructive trust (profits from fraudulent sale)
(ii) Rescission/cancellation/reformation of K\
(iii) Accounting of profits to determine award
(iv) Quiet title or remove clouds from title
2. Is There a Remedial Hierarchy?
(a) Use of injunction based on balance of hardship test (comparing hardship to
plaintiff and defendant) and public interest
(i) First consider if other remedies are adequate
(b) Sigma Chemical Co. v. Harris pg 308
(i) Harm to company of not having injunction greater than harm to ex employee
violating covenant not to compete if injunction were in place
(ii) Court glossed over whether other remedies may be adequate in focusing on
balance of hardship test because it wouldnt make sense when Defendant
couldnt afford to pay a judgment to company based on harm
(i) Injunction was limited to only certain capacities (eg not as restrictive as
covenant was) example of application of judicial discretion in equity
1. Competing schools of thought on drafting non-compete
a. Draft broadly because Court may narrow when enforcing
i.

Employee doesnt know Court will narrow so employee will

read language and comply common in industries with
marginalized workers
b. Draft in manner most likely to be enforced (to bring certainty)
(ii) Whats point of injunction (vs just a non compete) you can throw D in
jail for contempt
F. Declaratory Relief prospective judgment to provide certainty to move forward
1. 28 USC 2201, 2002 & Rule 57
(a) Existence of another adequate remedy isnt preclusive
(b) Gets murky how SMJ applies for arising under requirement
(i) Issue: how this interacts with WPC rule its available for either potential
party if Ds defense is federal but Ps case is state (Mottley), this wouldnt
normally give federal court SMJ if this were bought to trial
(i) To fix this, declaratory judgment act has a specific rules to address this
(c) Also murky who has burden of proof when D sues P for a declaratory judgment
saying they didnt violate K, for instance
(d) Also an issue if its a declaratory judgment request in state court and then
removed to federal court due to diversity
G. Financing Litigation
1. Court costs judge, clerical staff, courtroom and bailiff paid by taxpayers
(a) Expert witnesses, court reporters, PIs paid by parties
2. Legal fees US system is all events are initiated by lawyers so attorneys fees are
higher than in systems where court as more administrative duty w/r/t proceeding.

24

3. The American Rule each party pays own attys fees

(a) Encourages law reform suits, discourages meritorious low damage suits.
(b) English rule losing party pays (most of the globe is like this)
(i) Incentivisis settlement because of potential cost of losing
(ii) Incentivisis low dollar, high merit cases
(c) Rule 54 shifts costs under Sec. 1920 (other than attys fees to loser)
(d) Rule 68 if you refuse a settlement offer and lose, may shift some fees to you
(e) Some statutes use English rule (civil rights statutes)
4. Fee for service
(a) Particularly used in contract and commercial litigation (which is majority of
matters)
5. Fixed fee eg. uncontested divorce, will, etc
(a) Uncommon in contested litigation
6. Insurance and the Contingent Fee
(a) Liability insurance normally pays claim up to limit and provides legal defense
(fee sharing uses premiums from other insured to pay your fees)
(i) Policy typically gives insurer right to settle claim (within policy limit) w/out
consent of insured
(i) Medical malpractice policies dont have this and, as a result, are more
expensive
(ii) Some types of liability policies require offset of legal fees vs. policy limits
(iii) Doesnt provide for legal offense, only legal defense
(iv) Insurance Co normally has subrogation rights to amounts you recover
(b) Contingent fees another fee sharing arrangement
(i) Successful clients fund unsuccessful claims
(ii) Contingent fees are often graduated for stage in which matter is resolved
(i) Ex 20% if settled before suit, 25% if suit is filed and then settled, etc
(ii) Some states limit percentages or absolute amounts
(iii) Effective hourly rate for contingent fee attys not significantly different from
fee only attorneys
(iv) Can generate a conflict of interest because maximum fee is difference
between revenue and expense this can diverge from maximum judgment
(depending on when in process matter is settled)
(v) Opposition to contingent fees rooted in champerty & maintenance laws
(dont want lawyers stirring the pot) as well as conflict of interest concerns
7. Alternative financing
(a) Consumer loans 3rd party lends money to plaintiff normally a small % of
potential judgment with a high interest rate
(b) Lawyer lending pay overhead and/or trial costs 20% interest rate
(c) Direct investment in claim share of recovery in exchange for loan for
proceeding costs lenders focus on major commercial litigation (anti trust, IP
and K disputes)
(i) Clients do this to free up capital for core basis
(ii) Attorneys do it to reduce expense if case is lost
(iii) Attys typically paid on an hourly basis if 3rd party is financing suit
(i) May better align interest than contingent fee arrangements
(iv) Many states still prohibit champerty & maintenance, though.
(d) Assign/subrogate claim ex. patent infringement
8. Public Subsidiaries and Professional Charity (pro-bono / legal aid / legal clinics)
NAACP, LAMDA, NRDC
(a) Helps Ps with small/weak claims who cant get a contingent lawyer

25

(b) Helps Ds without liquid assets (if they are just poor, wont get sued)
9. Fee Shifting Symmetrical (loser pays) / asymmetrical (only a losing P pays, losing
D does not)
(a) The Common Fund P brings action which will benefit group of people. May be
able to take attorneys fees from this judgment pool.
(i) Pre-dates class-action claims formed at end of suit rather than beginning
(ii) Not commonly used today
(b) By Contract noted in the agreement that loser pays if dispute arises
(c) By Common Law groundless suit may result in award of legal fees to D
(i) Chambers v Nasco pg 335 - $1 million in legal fees awarded to D based on
Ps bad faith
(ii) Tort of malicious prosecution
(d) By Statute
(i) Fees Statute: 42 USC 1988 gives Court discretion for awarding attys fees
to prevailing party (construed by Court to be asymetric) in Civil Rights
Claims
(ii) Some federal provisions allow for it (CAA, Civil Rights Atts Fees Act)
(iii) US Supreme Courts Alyeska decision opened this up to states
(i) Jurisdiction specific
(e) Evans v. Jeff D. pg 337 P and D settled and received a court approved consent
decree (consent decree has more legal effect than just a settlement agreement)
(i) Even if P is entitled to attys fees by statute, can waive it if he receives
adequate compensation in return (whether that be financial or otherwise),
such as consent decree
(ii) Since Court retains discretion under Sec. 1988, they could always add attys
fees back to consent decree settlements where Ds make them contingent on
waiving attys fees theres no caveat in statute
(f) Buckhannon v. West Virginia Dept. of Health and Human Resources pg 342
(i) Statute which awards fees to prevailing party did not require fees when
case is dismissed prior to court judgment or court ordered consent decree for
P when issue became moot due to change in law
(ii) Prior to this, courts had accepted a catalyst theory (if suit catalyzed
outcome you could be a prevailing party even if suit dismissed)
(iii) How to avoid ensure your case cant be mooted by asking for money
damages in addition to injunctive relief when filing claim
H. Provisional Remedies relief pending final adjudication (injunctive relief)
1. Why would you do it?
(a) Good way to generate leverage in settlement negotiations
(b) Helps to avoid mere paper judgments
(c) Avoid harm being suffered by client. Without it, relief may not be full.
2. Preliminary Injunctions Rule 65(a)
(a) Problems for Courts in awarding a PI
(i) Uncertainty dont have full info. on likelihood of Ps success
(b) Four elements
(i) Requesting party must prove they will probably prevail on merits of case
(i) If claim turns on facts, will have to provide more evidence (affidavits)
than required for a naked complaint
1. Court can take judicial notice of publicly-known facts
(ii) Requesting party likely to suffer irreparable injury if relief delayed
1. The burden of showing this is that there is likelihood of irreparable
injury

26

(iii) Balance of hardship must fall on requesting party

(i) D must not be harmed more than P is helped
(iv) Pubic interest must be served
(c) Winter v NRDC pg 346
(i) Since relief is equitable court has discretion
(ii) Party may need to produce clear evidence of each factor, including balance
of harm (unknown number of marine mammals harmed is not sufficient to
constitute a likelihood of injury vs mere possibility)
(d) Sliding Scale some argue when one element is particularly high, other elements
can be diminished
(e) Limitations in system
(i) Epistemic uncertainty without a full trial, theres factual uncertainty
(ii) Incommensurables balancing isnt just a numbers game, there are
considerations which cant be quantified
(f) Safeguards on preliminary injunctions
(i) Fed Rul Civ Pro 65(c) Party requesting Prelim injunction must post bond if
successful
(ii) Prelim injunctions are immediately appealable (Sec 1292) exception to final
judgment rule
3. Pre-trial attachment (seize property) & garnishment (seize wages)
(a) Can also be available post judgment
(b) Fuentes v. Shevin pg 354 (US Supreme Court rules state statute authorizing ex
parte replevin order unconstitutional under due process) limits seizures must
have pre-hearing notice and then a hearing airing of the probabilities of
success of the P in all but the most compelling (extraordinary) cases:
(i) Court said in the past, extraordinary cases which would be permissible
include instances of:
(i) Seizure must be necessary to secure important govt or public interest
(ii) Special need for prompt action
(iii) Govt need which, narrowly drawn, are justified in a particular instance
(ii) Matthews v Eldridge pg 362 has pegged following factors for exception:
(i) Private interest that will be affected by the official action
(ii) The risk of erroneous deprivation and the value of additional
safeguards
(iii) Govts interest, including function involved, fiscal/admin burden
that additional procedure would entail
(iii) This rule applies to state (due process limit), not private repo. men
4. Temporary Restraining Orders Rule 65(b)
(a) Specific relief granted early in case
(b) Different than an injunction
(i) Can be issued without notice to other party (as opposed to Notice
requirement under 65(a) for Prelim injunct)
(i) Must document what efforts were made and why it should not be
required (65(b)(1)(B)) since this is broad, may not be constitutional
under Fuentes (P can rely on Rule but D may challenge on this basis)
(ii) Must show immediate & irreparable injury would occur if injunction process
were used (eg. if TRO not granted right away)
(i) Using facts in an affidavit or verified complaint (complaint with a
statement from client attesting to truth of statements)
(iii) Limited to 14 days

27

(c) Federal court sitting in diversity will apply its own rules for granting TRO (under
Hanna since this is a Fed Rul of Civ Pro).
5. Provisional Remedies and Due Process
VI. PLEADING
A. Drafting a complaint See Rule 8
1. Considerations
(a) Rule 10 Form considerations
(b) Choose D carefully
(c) Choose Court carefully
B. Functions
C. Ethical Limitations
D. Special Claims
E. Allocating the Elements
F. Responding to the Complaint
1. Pre-Answer Motion- normally have to limit facts to complaint except for
jurisdictional challenges
2. Answer
(a) Denials
(b) Affirmative Defenses
3. Reply
4. Amendments
Pleadings: in general
1) Basically good for one thinggiving notice to other party of your intentions
a) Notice pleading you only need to put D on notice of assertions being made.
i) Used to be used to recover facts but now do that with discovery and use motions to
narrow facts
ii) Modern view is to limit the number of pleadings
2) Rules today provide for two basic pleadings: complaint (P) and answer (D)
3) Federal rule 7(a): third type of pleading: reply
a) Used in two contexts: in reply to answer and in reply to counterclaim
i) Reply to defendants answer
(1) Almost never happens and only occurs if court orders
(2) Anything on the answer is basically treated as denied by P so really doesnt have
to
ii) In response to counterclaim
(1) Responsive pleading to the answer
4) Most states use FRCP pleading but some use code pleading
1) Rule 11 applies to papers
a) While only applicable to papers, there are other basis for sanctions for malfeasance
elsewhere
b) Requires the attorney to sign all documents (not just pleadings) EXCEPT discovery
documents (have own certification requirement) (Rule 11(d))
c) 11(b) You are certifying to the best of your knowledge and belief after a reasonable
inquiry under the circumstance that certain things are true (Bridges v Diesel Service Inc.
Pg 13 Rule 11 sanctions not called for where mistaken claim which should have been
filed with EEOC)
i) Reasonable under circumstances will vary
(1)If rushing to meet SoLs on last second client

28

ii) It doesnt have to be true, as long as good faith effort made

iii) Mere hope that favorable facts will come to light to support pleading is insufficient
d) What are certifying? These 4 things
i) That this paper is not for an improper purpose
ii) The legal contentions are warranted by law or a non-frivolous argument that the
law ought to change
iii) The factual contentions have evidentiary support or are likely to after further
investigation (based on reasonable inquiry)
(1)Can be sanctioned even if facts ends up being true if you had no basis to assert
(2)Walker v Norwest pg 416 Diversity claim pleading not supported by law P
didnt go through effort to determine citizenship of all Ds, claiming it was too
much work for a pleading court disagreed and imposed sanctions
(a)Appeals court reviewed whether district court abused discretion
(3)Christian v Mattell pg 421- P sues for copyright infringement but D had an
earlier copyright which was easily discoverable sanctions for lack of reasonable
effort
(a)Decision also noted you can only sanction for pleadings atty in question
behaved badly and made misrepresentations during oral arguments and
discovery these arent covered by Rule 11.
iv) The denial of factual contention have evidentiary support or are reasonable based
on belief or lack of information
e) Three important procedural matters to flag about rule 11
i) This certification is effective every time that document is presented to the court
(1)It is a continuing certification
(2)So if I sign and certify the document today and 6 months from today make some
presentation referring to the document I am re-certifying
ii) Sanctions are discretionary applies to both sides in pleadings & motions
(1)The rule says sanctions may be levied and not shall
(2)Sanctions are aimed at deterrence and are non-monetary
(3)Can also include other partys legal fees
(4)See 11(c)(2) for process which must be followed to ask for sanctions
(5)See 11(c)(3) court can initiate even if not requested
(6)Wright v Wilson (pg 420) frivolous 12(b)(1) motion based on thought that if
theres no valid federal claims theres no SMJ sanctions were imposed.
iii) A motion for violation is served but is not filed
(1)Draft the motions and serve it on the other side but do not file it b/c rule 11 gives
the other party a 21 day safe harbor
(2)If, during that time, the other side fixes the problem then you can never file the
motion for sanctions
(3)If, by the end of the 21 day period, they have not fixed the problem, then you can
file the motion with the court
f) Per Burlington Northern RR v Woods pg 414, Rules Enabling Act (28 USC 2072(b)),
which says rules shall not abridge, enlarge or modify rights, is not violated by Rule 11
since rules which incidentally affect litigants substantive rights dont count if necessary
to maintain integrity of the system
2) The Complaint:
a) Rule 3: This is the pleading that commences the lawsuit
i) Usually the only pleading by P (unless have responsive pleading)
b) Rule 8(a):
i) Whats required in complaint

29

(1)Jurisdiction - Statement of the grounds of SMJ & PJ & Venue

(2)Short and plain statement of the claim showing you are entitled to relief (law +
facts)
(a)Based on idea that pleadings are good for giving notice so dont require
great detail
(i) Some states have code pleading and this is more detailed
(b)Federal rules want to decide case on merits and not technicalities
(c) But that does not mean there are no rulesyou cannot just plead anything
and you are going to have to prove all the substantive elements of your
claim
(i) So your pleading has to cover the elements of your substantive cause of
action as well
1. i.e., if your suing on breach of K you will need to cover in your
pleading offer, acceptance, CNS, performance, breach, damages
2. can be somewhat conclusory but must still cover them
a. but remember, pleading requirements are liberal and usually
allow for amendments as needed to correct errors (prior to
dismissal)
(d)Youre bound by what you plead (absent opportunity to amend) so if
during a preliminary hearing the judge doesnt buy your legal theory, and
you only have a narrow basis in your complaint, you will lose
(i) Haddle v Harrison pg 371 line 18 kept complaint broad in order to
maximize subsequent opportunities during proceedings
(ii)Court typically will allow leave for amendment to complaint at least
once prior to granting 12(b)(6) motion (limited by Rule 11 good faith
basis)
(3)Demand for judgment for relief sought (tell the court what you want)
ii) Notice pleading - Bell v Novick Transfer Co (pg 18) & Conley v Gibson (pg 387) a
minimal statement (notice pleading) can be sufficient to satisfy Rule 8
(1)Recent developments in challenging sufficiency of pleading closing door to cases
requiring discovery to establish facts - Bell Atlantic v Twombly (pg 388)- antitrust complaint & Ashcroft v Iqbal (pg390) civil rights complaint: in general,
party must include sufficient facts to allow court to infer Ps claim is plausible
(under each element of claim). Not a naked assertion devoid of further factual
enhancement. Doesnt matter if claims are true (at this point in proceeding).
Court must accept as true factual allegations under a 12(b)(6) motion. Two step
process for judge: If allegation based on fact, it is presumed to be true but not as
a matter of law.
(a)Step 1 The pleading cannot contain legal conclusion
(i) With each statement you make is it a factual allegation or legal
allegation? If factual it is deemed to be correct for this stage but if legal
allegation then not
(ii)ex Ashcroft was an architect of the plan
(b)Step 2 Remaining facts must nudge allegation possible to plausible that
plaintiff could win
(i) Some jursd., in applying Iqbal, say you dont need to plead enough facts
for each element to be plausible, just the claim in total is plausible- this is
an open question amongst circuits Supreme Court decision didnt
resolve it

30

(c) Not yet clear how these rulings should be applied in day-to-day litigation.
Still works in progress. Given recency, not sure how to apply. Bad for Ps
that dont have full info on what happened w/out discovery. See
2/27/14 lecture notes for Rosen Example.
(i) Probably applicable to all Fed Court claims subject to Rule 8.
(ii)Twomblys author (Souter) dissented from Iqbal. Hadnt intended
Twombly to apply to matters without huge discovery costs.
(iii)
Rule 8 Advisory pleading forms currently include legally
conclusory allegations (not yet re-drafted)
(d)Swanson v Citibank (not in materials) 7th Circuit subsequent decision said
the following about Iqbal (this is broader than Iqbal allows and not well
accepted)
(i) Specific facts arent necessary
(ii)Objective of RP 8 is to require pleading give D fair notice of nature and
basis or grounds of pleaders claim & type of litigation
(iii)
P must give enough detail so story holds together. Court will ask
could this have happened, not did it happen (eg. dont need to give facts
to plead each element of prima facie case)
(2)Theres a divergence between federal and state rules here (some require more
detail)
iii) Although pleadings are somewhat liberal (as modified by Iqbal), there are
circumstances when we must plead with detail and specificity
(1)Some specific federal & state laws (federal securities laws)
(2)Rule 9(b): circumstances constituting fraud or mistake must be pleaded with
particularity facts (time, place manner) intent can be plead generally to avoid
inappropriate lawsuits and not undermine contracts with liquidated damages
provisions
(a)Stradford v Zurich pg 401 fraud counterclaim by D dismissed for not
specifying the content of the fraudulent statement per 9(b) improper
pleading raised as affirmative defense
(b)Cannot just say Joe defrauded me
(i) Must say Joe defrauded me by misrepresenting the car I bought had
power steering when it did not
(3)Rule 9(g): items of special damages must be pleaded with specificity
(a)Special damages are those that do not normally flow from the an event
(i) i.e., a man gets run over by a car and suffers nerve damage that gives him
a permanent erection
1. not the normal automobile injury so must be plead with specificity
(4)In light of Iqbal, is there a heightened regime for everything? The existence of
Rule 9(b) infers Iqbal is incorrect. Perhaps 9(b) is higher than Iqbal. But, given
general pleading provision for intent in 9(b), perhaps Iqbal is higher?
(a)Not all state courts follow Iqbal, though and are just notice pleadings
(i) Incentivizes Ps to bring federal discrimination claim (turning on intent)
in state court
(5)Leatherman vs. Terrant County: (referenced in pg 409) if there is no rule (like
9(b) or (g)) or statute requiring detailed pleading the court cannot require it on
their own
(a)Courts were requiring greater specificity in civil rights cases brought by
prisoners and the SCOTUS said no, Courts cannot do so unless a rule of
Ford Procedure or statute requiring the specificity

31

(b)Not clear if Iqbal repealed this case

(6)Jones v Bock (pg 409) (whether prisoner must plead he exhausted administrative
remedies or if its an affirmative defense) the source of heightened pleading
requirements must be specifically provided in a statute or the Fed Rul of Civ Pro.
It should not be based on federal court interpretation (of a statute).
(a)This seems inconsistent with Iqbal, unless you conclude that Jones was a
heightened pleading req. which the courts put on a statute, which isnt OK.
Iqbal applies to all claims, though, its only an interpretation of Rule 8.
(i) Jones was decided before Iqbal could argue it no longer applies most
think it does and say it stands for courts not allowed to judge pleading
requirements case by case but Supreme Court can provide general
requirement
1. Jones said you dont need to please each and every element of a
claim, Iqbal says you do
iv) Rule 11- facts in complaint need not be true but lawyer must have good faith belief
they are and certify to that
v) Burden of pleading matters not just on its own but it also normally tracks with who
will ultimately have burden of proof if they dont have a preponderance of
evidence, then, the party who has the burden loses.
(1)Party with burden must make prima facie showing
vi) Rule 8(d) allows alternative hypotheticals in one pleading (I didnt do it but if I did
Im not responsible for the following reasons) see Haddle pg 371 14 for example
(1)Necessary given how early pleadings come in a case
(2)When you get to trial, its not a good idea to have competing theories.
3) Defendants response:
a) Required response time varies by type of service
i) Rule 4(d): If you waive service of process you get 60 days from the mailing of
waiver form to respond
ii) Rule 12(a)(1)(a) If you were served process then you get 21 days from service of
process to either answer or make pre-answer motion
iii) Rule 12(a)(4) Rule 12 motions (even if denied) extend required response time
beyond 21 days of service
b) Default judgment Failure to respond
c) Pre Answer Motions
i) Motions are everything listed in Rule 7 which arent pleadings
(1)Include motion, notice of motion, affidavits, memo of law in support and
proposed order
(a)Normally only use info in pleadings, but there are exceptions where
additional facts are needed PJ motion
(i) If you raise defense in your answer, required factual development is less
1. To do so for PJ, though, you have to specially appear to respond
(otherwise you now establish PJ just be appearing to submit
response)
ii) Rule 12(b) motions
(1)Motions are not answers but requests for court action lower info. gathering
requirement than a response
(2)Subject to Rule 11
(3)Federal Court--First Appearance. There is no special appearance rule in
federal court, only a first appearance rule. This means that the defendant's first

32

legal action must be to challenge jurisdiction but, unlike in a special appearance,

the defendant may raise other issues at the same time.
(a)"First legal action" means that the jurisdictional challenge must be made in
a preanswer motion or in the answer prior to making a 12(b) motion or any
other action (e.g., asserting a counterclaim). [Fed. R. Civ. P. 12(b), (g), (h)]
(i) If you make a 12(b) motion and neglect to assert one of the defenses in it,
you waive it (except for SMJ, which cant be waived)
(ii)If the defendant raises a non-jurisdictional issue in a motion or the
answer and leaves out the jurisdictional challenge, the defendant cannot
at a later time raise the jurisdictional challenge; the challenge is waived.
[Fed. R. Civ. P. 12(h)]
(b)What could be waived if 12b motion is filed?
(4)Claim based on the merits: If Ps claim clearly "arises" under federal law, it
qualifies for federal question jurisdiction even if the claim is invalid on the
merits. Here, the federal court must dismiss for failure to state a claim upon
which relief may be granted (FRCP 12(b)(6)), not for lack of subject matter
jurisdiction.
(a)Haddle v Garrison pg 379 (is termination of an at will employee
actionable retribution under a federal statute) complaint must provide a
legal basis for plaintiff to recover. Otherwise, can be dismissed for failure
to state a claim.
(b)If you can craft defense on a legal theory not relying on factual
intepretations, can keep this out of the hands of the jury if defendant has a
credibility issue Haddle v Garrison (D claims at will employment is not a
property interest).
(c) Side note under Jin: For a complaint to survive a Rule 12(b)(6) motion to
dismiss, it need only provide a short and plain statement of the claim and
the grounds on which it rests. However, a defendant may raise the
affirmative defense of statute of limitations via a Rule 12(b)(6) motion
when the facts that give rise to the defense are clear from the face of the
complaint. Because statute of limitations issues often depend on contested
questions of fact, the court should hesitate to dismiss a complaint on statute
of limitations grounds based solely on the face of the complaint.
iii) 1406(a): improper venue to proper venue: venue in the transferor ct is improper.
The court may, at its discretion, transfer in the name of justice or dismiss the case
(usually transfer if they can). You must object to venue w/ 12(b)(3) or it is waived
per 12(h)(1)
iv) Rule 12(e) Motion for a more definite statement rarely used in age of notice
pleadings
v) Rule 12(f) Motion to strike
(1)Challenge part of pleading which fails under substantive law
(2)Remove irrelevant, prejudicial allegations
d) Answer: the answer is a pleading deny allegation or raise a defense
i) If file a pre-answer motion: if denied then must answer within 14 days of denial
ii) What do we do in an answer? Two things you must think about
(1)Rule 8(b): respond the allegations of the complaint
(a)Only three response possible
(i) Admit (any allegation not denied is deemed admitted 8(b)(6)
(ii)deny
(iii)
dont know (lacks information sufficient to form a belief)

33

(b)General denial deny everything. Usually not appropriate since youll

inevitable deny a portion of complaint you shouldnt have
(i) Can do a general denial, with exceptions to address this issue
(ii)Can do a back up general denial for anything you didnt agree to at the
end of your response
(c) Rule 8(d)(2) - Alternative/inconsistent denials are permitted (there was no
K, but if there was, I didnt breach it)
(d)Ineffective denial will be disregarded doesnt respond to substance of
allegation Zielinski v Philadelphia Piers pg 433 (complaint said D
owned, operated and controlled forklift which was negligently operated,
D denied the entire containing the statement when in fact some of it was
true P thought that denial was a denial of negligence rather than a denial
that they owned, operated and controlled) - P sued wrong person but Ds
response didnt clearly respond to that, and SOL passed when this was
discovered but Rule 15(c) relate back provision didnt apply at the time of
this proceeding
(i) If there are multiple assertions in a complaint , answer must respond to
each assertion separately
1. This could have been avoided if Ps atty had short s in complaint
with only one assertion in each - this is preferred
(ii)Result: If it doesnt meet 8(b)(2) requirements, it will be disregarded &
D is estopped from raising it later in proceeding
1. this is an aggressive approach not commonly used
(2)12(b) ordinary defenses in answer
(3)rule 8(c): raise affirmative defenses if you fail to do so, and court does not
allow for amendment, youre barred from asserting it
(a)many listed under 8(c) , but there are others (not listed in 8(c))
(i) SoL, SoF, RJ
1. Different from denial, not saying no, you are raising a new fact as to
why P should not win
2. Saying even if this occurred and did all this stuff P still cannot win
b/c of SoL or SoF ect
3. Jones v Bock pg 407 Lack of exhaustion of other (non-judicial)
remedies is an affirmative defense, as opposed to a pleading
requirement. Therefore, D couldnt raise it as a 12(b)(6) motion.
4. If not in answer then you run the risk of waiving affirmative defenses
(4)Raise counterclaim labeled as such in answer - imposes additional pleading
obligation on plaintiff Rule 7(a)(3), must give a reply (as opposed to an
answer)
e) Rule 12(c) Motion for judgment on pleadings after pleadings are closed (after answer
is closed) could be used by P against D whose pleadings dont properly raise
affirmative defense or used by D if P plead facts which are legally damning to P
(1)Can be used as Ps version of a 12(b)(6) motion
(2)Different than summary judgment as based purely on pleadings (not discovery)
(3)P wins because Ds only defense stated is legally insufficient
f) Reply while most pleadings end with the answer, two exceptions
i) Rule 7(a)(3) if the answer contains a counterclaim designated as a counterclaim
ii) Rule 7(a)(7) court orders a response
4) Amending Pleadings
a) 14 days to reply to amended pleading(s), if a response is required

34

b) 15(a) Gives us three basic rules of amendment.

i) Plaintiff has the right to amend once before defendant serves her
answer, or if no response reqd 21 days but if SOL runs, unless
relate back of 15(c) applies, amendment may be granted but then
other party will have right to raise SOL defense
(1)If this happens suit will be dismissed and may be w/out prejudice
(so could potentially be brought in another jurisd with differing
SOL rules)
ii) Defendant has the right to amend once within 21 days of serving
her answer.
(1)so if forgot to put in an affirmative defense you could still add it
and not have waived it
iii) If there is no right (those rights shown above) to amend, you seek
permission from other party or leave of court.
(1)15(a)(2) The motion to amend shall be freely given by court
when justice so requires.
(a)Generally liberal policy - fed cts like to decide cases on
merits and not technicalities
(b)Court will grant unless other party can show prejudice by
the amendment or defect in pleading was result of
inexcusable neglect or carelessness
(i) Beeck v Aquaslide pg 444 manufacturer admits making
product in response but realizes after SOL ran that
someone else made it. Court said there was no bad faith
and it was a joint mistake by both parties so allowed
amendment (precluding recovery) and granted motion to
bifurcate trial just on that issue (avoid evidence of Ps
injuries)
1. Court allowed motion under 42(b) for a separate trial
(ii)The later you request amendment in the process, the less
likely you are to get it since, without chance for discovery,
more likely to be prejudicial
c) 15(b) Variance: Where the evidence at trial does not match what was
pleaded. It goes beyond the scope of what was pleaded.
i) could be P that does this (pleads breach of contract yet in addition
to that evidence also provides at trial evidence of tort)
ii) could be D that does this (did not plead an affirmative defense but
starts putting forward evidence of an affirmative defense at trial
iii) Whenever there is a variance at trial, either:
(1)The other side will not object to the variance, in which case we
treat the pleading as though it is amended to show the new
information and amend the pleading to conform to the evidence
after trial; or
(2)The other side will object to the variance, in which case, the
evidence is inadmissible, but even at trial, the party that is
coming up with this evidence can seek leave to amend.
(a)tougher standard than usual (but still pretty liberal for
bringing in new evidence after trial has already started and
the other side has objected)

35

(b)must show new evidence sub serves the presentation of the

merits and does not prejudice other party in maintaining its
case on the merit
iv) Same SOL issues is 15(a) if court grants and precedes SOL, other
party can raise SOL as defense
d) 15(c) Relate back provisions to add claims or change parties (this is
not a discretionary decision for the court such as the one under 15(b))
not limited by SOL
i) 15(c)(1)(B) the amendment is to add a new claim Can do so
either before SOL rules, or if the amendment concerns the same
conduct, transaction, or occurrence (this language used in many
civil procedure areas) as the original pleadings, even if SOL has
lapsed.
(1)This impacts how you write a complaint make sure you
cover all claims so you can then relate them back
(2)Prejudicial value of amendment is a consideration (is request
before or after discovery?) not listed in 15(c), though
(3)hypo: guy files the case on July 1st and SoLs runs out on July 10th.
On July 15th he wants to amend to add a new claim (SoLs ran on
July 10th) that has not been pleaded prior. The amended
pleadings must relate back as above
(4)if the attempted amended complaint concerns the same real
word event, conduct, transaction, occurrence than it relates
back
(5)relation back means you treat it as if it were filed on July 1 st and
that gets you around SoLs
(a)makes sense b/c on July 10th D is on notice of being sued for
conduct that occurred on July 1st so all were doing on the
15th we are merely adding a complaint that relates to
conduct he was already on notice about (not an extra
burden)
(6)Moore v Baker pg 450 Doctor sued for violation of informed
consent. After SOL runs, patient wants to amend to include
negligence court denies since informed consent dealt with
actions before surgery whereas negligence was during surgery,
which relate to different and separate conduct.
(7)Bonerb v Richard J Caron Foundation pg 452 negligence claim
against counseling facility for slip and fall on basketball court.
Added counseling malpractice claim after SOL runs. Court
grants new claim because it all related to same occurrence, not
prejudicial (still had time for discovery) and no undue delay or
bad faith.
ii) 15(c)(1)(C) Trying to amend to add a new defendant
Allowed if meet 3 requirements:
(1)Meets standard under 15(c)(1)(B) you sued the wrong person
the first time around, but, somehow,
(2)the right person knew about the suit in the time a summons
should have been issued (normally 120 days) and therefore not
prejudiced, and

36

(a)Prejudice relates to opportunity to prepare a defense (eg.

time in discovery window)
(3)the person had enough info. to know a mistake had been made
by not charging including him in the original complaint
iii) 15(c)(1) Relation-back allows you to get around SoLs
DISCOVERY See pg 471 & 484 for sequence and Rules
1. Phases: (A-D)
i. Magistrate judges oversee many discovery request for
orders/motions
a. Informal Discovery phone calls, public records
b. Mandatory disclosure (Rule 26(a))
i. Specified info relating to materials that a party may use to
support its claims or defense.
c. Party-initiated discovery
ii. What party can request without court permission (Rule
26(b)(1)) any matter not privileged that is relevant to
the claim or defense
iii. What party can seek with court permission for good cause
(Rule 26(b)(1)) Relevant to the subject matter involved
in the action (broader than the category above which
doesnt require court approval)
1. Definition of relevant for purposes of i. and ii.
must appear reasonably calculated to lead to
discovery of admissible evidence (even if what
youre asking for isnt admissible)
d. Pre-trial disclosure - witness and evidence lists and expert
reports (Rule 26(a)(3))
2. Abuse to limit this, Court maintains significant discretion throughout
process
a. Can limit if burden of discovery under Rule 26(b)(2)
b. Can issue an order to compel disclosure when needed (under
penalty of Rule 37(a)(2) sanctions
c. Most sanctions dont occur for failure to abide by rules but
failure to respond to a courts order (but there are exceptions)
3. Scope of Discovery
a. Rule 26(b)(1) We can discover any non-privileged matter
relevant to a claim or defense of any party (as limited by the
pleadings) under substantive law
i. Exception for good cause can request broader
discovery but only w/r/t the relevance provision if the
party needs to be educated on issue
1. Doesnt apply to privileged info
ii. Relevant info helps party seeking to prove claim or other
party to defeat claim
iii. Parties making request should consider tactical reasons
for requests
1. Settlement leverage
a. Add other parties to litigation

37

b. Disruption impact to defendant

iv. Relevant info isnt limited to admissible info if its
discovery might lead to other info which is
admissible
1. Ex. hearsay not admissible but may allow atty to
then pursue who did make statement and enter it
into trial record
2. 26(b)(2)(c)(i) (iii) On motion or on its own,
Court can limit request if info is readily available,
unreasonably cumulative, obtained elsewhere more
conveniently nor can the burden of proposed
discovery outweigh its likely benefit
3. Davis v Precoat p 459 employment discrimination
claim P asked during discovery to disclose all
previous discrimination complaints (production of
documents) by persons not a party to litigation;
Court ruled this discoverable because it could
demonstrate whether Ds reason given for
termination was mere pretext per Title VII
4. Steffan v Cheney p 461 - P resigned from Navy
based on statement he was gay, then claimed
constructive discharge and sued. Navy asked for
info on sex acts during deposition; court ruled not
discoverable since not relevant - case was about
statements he made, not acts he did. District court
sanctioned P for refusing to answer under Rule
37 by dismissing claim, Appeals overturned.
a. P didnt want irrelevant info (even if was
considered inadmissible for trial) introduced
into record since its then public and
available to others
b. Appeal of a lower courts discovery ruling
(this normally isnt appealable but since trial
court dismissed Ps case for refusing to
answer question, this was a final judgment
for which appeal could be taken)
i. This is rare most discovery
determinations arent appealable
(due to final judgment rule)
5. How do you resolve Davis and Steffan?
Information about non-parties were revealed in
Davis whereas info about a party in Steffan didnt
need to be revealed - RELEVANCE
v. Things Protected from Discovery:
1. Privileged Material Rule 26(b)(1): doctor/patient,
lawyer/client, priest/penitent, spouse/spouse
absolute bar to discovery (even if very relevant)
a. Must be asserted by party receiving request
to be effective (if party answers question,
cant take answer back) behavior waves

38

privilege (can be inadvertent) for all

information relating to that subject matter
Governed by Rule 502 Fed Rul of Evidence.
i. Can be difficult to manage when there
are lots of docs, some of which may be
privileged
1. Party must keep a privilege log
b. 5th Amendment rights are privileged
c. Privileges can be waived explicitly or
implicitly
d. Privilege protects where you get the
information not the information itself. EX:
Doctor-Patient. You can get the info another
way but cant get info about a patient from
the doctor.
2. Work Product / Trial Preparation Material (not the
same thing is privileged as atty/client because
its not info from client)
a. Hickman v Taylor p 490 original decision
creating work product exception (at the time
it only applied to items prepared by
attorneys)
i. Prevents piggybacking by one side
onto work done by other side
ii. Avoids attorney being called as a
witness
b. Hickman case gave us common law doctrine
with is now handled under rule 26(b)(3): calls
it trial prep material
c. work product is material prepared in
anticipation of litigation (not merely monthly
regular filings for instancemust be
prepared with eye towards litigation)
d. starting point is that all work product is not
disclosable (idea is to avoid freeloader
problemsusually generated by lawyers but
can be gathered by party or anyone working
for party)
i. Work product isnt facts. It is
documents and tangible things. If
you get an interrogatory with a factual
question, you must answer it if you
know it (name of new witness just
discovered so not disclosed in original
(26(a) disclosure).
1. But, transcript of witness
interview is work product.
e. Some attys will include clients in
communication to ensure work product is
also atty/client privileged

39

f. Exception Substantial Need: substantial

need for the material AND. Substantial
Hardship: basically they cannot get there
hands on this material any other way (helpful
if not unavailable only b/c requesting lawyer
or party wasnt lazy (was available but just
did go get it even though knew litigation was
coming))
i. ex: the other party got statements
about an accident right after it
occurred - Substantial need: need to
know what witnesses said; Substantial
hardship: maybe witnesses are no
longer available
ii. This will look better if the other party
had no idea this party who interviewed
the witnesses would sue so didnt see
the need at that time to interview for
themselves)
g. Exception to exception: Some work
product is ABSOLUTELY protected - Mental
impression, conclusions, and legal theories
i. Start with assumption that work
product is protectedcan be
overcome but (1) substantial need
AND (2) substantial hardship BUT
some is absolutely protected (mental
impressions, conclusions, legal
theories)
h. Best practice consistently label all relevant
docs atty/client privilege or work product
4. Required Disclosures: Rule 26(a)
a. Parties must produce information at three different times in the
course of litigation even though nobody asks for it
i. 26(a)(1) Initial Disclosure (early in the proceedings)
1. must be disclosed within 14 days of the rule 26(f)
conference
a. 26(f) conference is one in which parties meet
and work out a discovery plan for the case,
reduce it to writing, and file it with the court
b. Must identify names and contact info for
people and description and locations of
documents with discoverable information
that you may use to support your claims or
defenses (including experts).
i. If something only to be used for
impeachment purposes you would not
have to disclose it

40

ii. If you fail to do so Rule 37(c)(1) may

bar use of this person/document in the
future
c. Plaintiff must give a computation of
damages.
d. Defending party must tell about insurance
that she has for all or part of a claim -even
though insurance status cannot be admitted
at trial
2. Parties can avoid 26(a)(1) initial disclosures if court
orders it or parties agree to it (but not by local rule
or custom)
3. If plan to use evidence only to impeach other party,
dont need to disclose (incriminating photo showing
P is lying about injury) Rule 26(a)(1)(A)(ii)
a. But, must disclose if requested under Rule
26(b) / Rule 34 requests.
i. If counter-party doesnt know about
doc after 26(a) requests, they may not
be able to craft a sufficiently specific
request to get it under Rule 34.
b. Downside of not disclosing during initial
wont be able to admit it at trial if witness
youd like to impeach doesnt testify if you
dont disclose
i. This could also be relevant for
damages as well as impeachment so
you may want to make sure you can
use it
c. If you dont disclose and then raise it at trial
and other side objects, Court will then decide
if its admissible
i. Judge could sanction if non-disclosure
bad enough
4. Rules encourage disclosure to promote
settlement
ii. 26-35 Party Initiated discovery
iii. 26(a)(2) Experts (comes up later after list of initial
experts if given under 26(a)(1))
1. Includes a written report and list of info about the
expert
a. Level of info required depends on whether
person will testify and whether they were
retained specifically in anticipation of
litigation
2. cant be deposed until this information is provided
iv. c. 26(a)(3) Trial Evidence - info about trial evidence and
is very late in the ballgame
1. this must be filed with the court (the only one that
must be) all need to be served on the other party

41

2. all these documents are served on the other party

but no formally by process but rather informally
under rule 5(c)usually just mail them back and
forth or serve personally
a. anytime you mail something under 5(c) the
other side gets an extra 3 days to respond
5. Timing of Discovery
a. Rule 26(f) Parties are to meet as soon as practicable to discuss
settlement. If no settlement is reached, a discovery plan is
required.
i. Formal discovery cannot commence until the discovery
conference
ii. Rule 16(b) judge will issue scheduling order for a
scheduling conference not to exceed 120 days after D is
served with complaint or 90 day after D has appeared
iii. Shortly after conference, Rule 26(a) mandatory disclosure
is required within 14 days of conference (rule 26(f))
iv. Party initiated discovery can then go on for a long time
v. If after making initial disclosure new information becomes
available which requires disclosure, it must be provided in
a timely manner Rule 26(e)(1)(A).
1. If party fails to disclose this additional info, can be
sanctioned under Rule 37(c)(1)
b. Since rules in this area come from multiple sources and are
district-specific, practitioners use summary practice guides
6. Discovery Sanctions
a. Spoliation the destruction or alteration of evidence either
through intentional acts or neglect
i. Parties have a duty to maintain evidence. A violation is
sanctionable up to and including dismissal of claim.
Power to sanction comes in courts general rules.
ii. Silvestri v GM pg 465 Car crash where airbag didnt
deploy. Victim had car repaired even though he knew GM
would need car to reconstruct accident to a) confirm
airbag didnt deploy and b) confirm this was the source of
the injury to victim. Case was dismissed in part because
of Ps intentional act of repair and in part because of the
prejudicial impact of act to D.
1. Resolved Erie question by applying federal common
law on spoliation to case
2. Said spoliation wasnt an affirmative defense but
had pleading consequence
iii. Zubulake v UBS Warburg pg 512 UBS violated
affirmative duty to preserve when it erased backup
tapes but because P couldnt demonstrate info was
relevant and intentionally destroyed no sanctions.
General guidelines to take from the case (still developing):
1. Determination of sanction for spoliation confined to
trial judge.

42

2. Duty to preserve is triggered when litigation is

reasonably anticipated (and in any event no
later than when suit is filed)
a. Ordinary retention policy is not sufficient
b. In this case there was an EEOC filing before
suit, which was a trigger
3. Duty extends to info should know is reasonably
relevant to action
4. If multiple copies, only one needs to be retained.
Form is up to party.
iv. Relevant considerations: Is there a duty which has
been breached, how culpable was the party and how
relevant was the data
b. Rule 37 Failure to make disclosure or cooperate in discovery
(separate from Federal Common Law rules)
i. Be aggressive in lawyering but dont be outrageous
ii. Rules
1. Rule 37(c)(1) Addresses what happens when a
party fails to make one of the required disclosures
under 26(a) OR fails to amend or supplement
responses under 26(e)
2. Rule 37(c)(2) Fail to admit something that
should have been admitted under Rule 36
a. rule 36: request for admission: if you fail to
or wrongfully admit something that you
should have admitted under rule 36 then the
other side can recover all expenses including
attorneys fees that were incurred having to
prove that point at trial
iii. Sanctions
1. Partial Failure to Comply Can make a motion
to compel the answers under Rule 37(a)(2). Can
recover costs, including attorneys fees for bringing
motion, if you win on the motion. Fairly minor
sanction since party has taken some action and not
was not complete failure to comply
a. Examples: where party has answered some
interrogatories but not all, or answered some
depositions but not all or responded to a
request for production but has failed to say
he will allow inspection or production of the
documents
2. what if we get order to compel and the other side
still does not comply?
a. 37(b)(2): big time sanctions (listed in 37(b)
(2)) can costs and attorneys fees in getting
those sanctions. The other side can also be
held in contempt for violating a court order
3. So first, get order to compel, AND if dont comply,
THEN get big time sanctions

43

4. Total Failure to Comply Rule 37(d) Failed,

completely, to respond or comply. Can get big time
sanctions right away and can recover costs of
getting the order BUT cannot get contempt in this
situation (did not violate court order).
a. Big time sanctions: listed in 37(b)(2) and
37(d) refers to them as well. Big time
sanctions such as
i. Striking the pleadings of disobedient
party
ii. Disallowing evidence of the
disobedient party in areas where
evidence was not forthcoming
7. Discovery Tools used after Rule 26(a) disclosures
a. Request to Produce: rule 34: request to produce documents or
evidence (the widget that exploded) no limit on how many
requests (not limited to parties)
i. Under 34(c) is available for non-party but ONLY with
subpoena (rule 45)
ii. Rules 34(b) and 26(b)(2)(b) help to limit impact of
requests on recipients
iii. If you erroneously give privileged documents, you
normally waive privilege on those documents
(absent Claw Back which is rarely given by court)
1. Many lawyers who receive unintentionally
privileged documents will notify other party and
return document w/out using it
b. Physical or Mental Examination of a party: rule 35
i. fairly narrowly interpreted: has not been read to include
an employee of a corporation: really more like
parent/child situations
ii. only available through court order
iii. this is the only one where you NEED a court order for a
party to suit
iv. must be in controversy and just cause (to avoid use as
harassment)
v. Examiners report must be given to other side, if
requested (35(b)(3))
1. Request waives privilege by P (35(b)(4)) so doctor
could then be deposed
vi. If during a 26(f) conference, D tells judge they will be
requesting a physical report and P agrees to it, P will still
have opportunity to get report and by doing so will waive
privilege
c. Interrogatories: questions in writing to another party (they
CANNOT go to non-parties) Rule 33
i. If you want to include a non-party, they would need to be
named as a party (subject to Rule 11 limits) this
happens

44

ii. Cheaper than depo. But doesnt allow for easy follow up
questions
iii. Helps to determine who you want to depose and what
other info to request
iv. Under oath (33(b)(3))
v. have 30 days to respond
vi. no more than 25 interrogatory questions per
respondent, including subparts without court approval or
stipulation from other party
1. If youre served with more than 25, dont answer
any
d. Request for Admission: rule 36: sent only to parties and cannot
be sent to non-parties
i. basically things like admit you ran the red light
ii. if the other party does not respond that can be treated
like an admission
iii. it doesnt discover new evidence in as much as it confirms
what issues are in dispute
iv. Impact of interrogatory vs. request for admission
interrogatory is evidence, which can be
contradicted with other evidence, request for
admission is a pleading which cant be contradicted
without amending pleading
e. Deposition: rule 30 and 31: depose somebody to give sworn
oral statements
i. fairly formal, in front of court reporter and under oath
ii. questions can be oral or written
1. rule 30: oral
2. rule 31: written
iii. under both answers are oral and under oath
iv. You can depose a non-party BUT you must subpoena (rule
45) the person or they do not have to show up
v. subpoena duces tecum: says not only do you have to
show but bring the evidence with you (like pictures or
documents)
vi. you cannot depose more than 10 people without court
order or stipulation of parties
vii. a deposition is presumed to be 1 day of 7 hours maximum
unless there is a court order or stipulation of parties
viii. a party can only be deposed once
ix. Rule 30(b)(6) request for depo - if representative for
entity is being deposed, in request you must state with
particularity the matters for examination
1. if questions are outside scope of notice, still need
to answer would have to object after the fact to
the judge (Rule 30(c)(2) is used to lodge
objection)
x. Generally, problems with the depo are handled later, not
at the depo

45

xi. Under 30(c)(2) A party doesnt need to answer a

question if its privileged, to enforce a court limitation or
to present a motion under 30(d)(3) for bad
faith/outrageous (if so, they must go to court immediately
to raise this defense) otherwise, they must answer
and raise objection which is put in record for future
consideration
xii. If other party in depo refused to answer a question
because they erroneously claimed it was privileged, you
can tell atty on other side it wasnt privileged. If they still
refuse to disclose, file a rule 37(a)(3) motion with court
to compel response.
1. If you are the party and believe you made a
mistake, under 26(e)(1) you have to disclose
f. Use of experts Must establish that party is expert and the
expertise is relevant to the contested issue
i. Two step process for testifying experts
1. Rule 26(a)(2) Expert produces initial written
report describing conclusions about case
a. Within 90 days of trial, all experts who may
testify are disclosed (26(a)(2)(D))
b. Required report depends on whether expert
is a fact witness (26(a)(1)) no report, just
listed as a witness; or was hired for the trial
(26(a)(2)(B)) report
2. Rule 26(b)(4) Expert is deposed (after report is
issued).
ii. Rule 26(b)(4) extends work product protections to
experts (subject to judicial review)
iii. Rule 26(a)(2)(C) doesnt apply to fact witness unless
they are considered an expert engaged for litigation
iv. Rule 26(b)(4)(D) If expert isnt going to testify, his
opinion is not discoverable absent showing of need (Rule
26(b)(4)(D)(ii) similar to work product rules) cant
depose and cant request report
1. Since other experts are available, standard for
disclosure is very difficult to meet
2. Thompson v Haskell p 500 Party was able to
show need for information of the psychiatrist that
examined her earlier because relevant and mental
state of person expert examined could have
changed so info not otherwise available
a. Medical privilege didnt apply because he
wasnt engaged to treat but to diagnose for
purposes of litigation
3. Chicquita v Bolero p 501 Non-testifying Expert
was a not fact expert just because he observed
facts while putting together a report for P.
a. The distinction is not between fact and
opinion but whether the facts were gained in

46

the normal course of dealings and those

gained specifically in connection with
expected litigation.
b. Since D controlled the evidence and
didnt use its own expert, cannot be
deposed based on exceptional
circumstances
i. Applies to report (as well as
deposition)
ii. It doesnt matter if info later becomes
impracticable (when the suit is filed)
it matters if info was otherwise
available at the time
v. Experts have both evidentiary rules and Rules of Civil
Procedure.
1. Evidentiary rules to qualify experts in federal courts
are stricter than in state courts so many go to state
for these reasons.
g. Additional point about discovery tools
i. Rule 26(c) allows parties to request party to request a
protective order by court to exclude issues from discovery
even if its relevant and not privileged if theres a
compelling reason (must seek this in advance of
discovery, cant unilaterally refuse to answer question)
1. Party in Stalnaker p 503 had one of these so parties
were arguing over whether questions asked during
depo were in scope of order
a. If other party disagrees whether info is within
scope of order, can request disclosure under
Rule 37(a)(2)
ii. Rule 26(g): requires counsel to certify basically that
discovery requests and responses are not frivolous or for
improper purpose and not overly burdensome in light of
the needs of the case
iii. recall we said that rule 11 does not apply to discovery
documents and that is b/c rule 26(g) does basically the
same thing for discovery documents
iv. lawyer must sign the documents to certify (parties sign
substantive answers under oath)
v. Theres no confidentiality duty w/r/t discovery info.
(absent a court order requiring it) risk of litigating
Pre-Trial Adjudication
A. Default: if D does not respond or otherwise defend under rule 12 within 20 days after
service
a. If you dont you are not automatically in defaultmust request the entry of
default with clerk of the court. 2 Stages:
i. Stage 1 default - Rule 55(a) clerk enters only once requested.
1. Otherwise defended includes 12(b) pre-answer motion
2. Motion to transfer venue is not otherwise defended

47

3. Results: pleadings are deemed admitted and party not entitled

to notice of future proceedings
ii. Stage 2 default judgment - rule 55(b): default judgment: need this to
recover money Done by clerk, once requested if claim is sum certain,
entry is due to failure to appear, other party is not a minor and other party
not US govt. Otherwise, must apply to court to do this.
1. If damages arent certain, a hearing must be held
a. No notice is given to other party of hearing unless they
previously appeared
2. Peralta v Heights Medical Ctr pg 524 - judgment can be set
aside due to procedural irregularities as a due process violation.
To do so, other party doesnt have to prove a meritorious defense
to original complaint to vacate a default judgment due to
procedural defect in service, for example.
iii. Rule 55(c) / Rule 60 grants court broad discretion to set aside for
good cause
B. Involuntary Dismissal: rule 41(b)
a. Failure to Prosecute by P (fails to move case along) rarely granted if D not
injured by delay
b. Failure to Abide by the Federal Rules
i. Defect in claim (lack of jurisd, Rule 12 defense, res judicata or SOL)
ii. Result of Sanction for violation of court rule
c. Result of dismissal: adjudication on merits, unless:
i. Dismissal due to lack of SMJ, PJ, venue or join a necessary party under
Rule 19
ii. Court states not on merits
d. See Semtek pg 266 Fed invol dismissal due to SOL was on merits in federal
court (governed by same SOL) but not state courts (with different SOLs) if they
have different preclusive rules
C. Voluntary Dismissal Rule 41(a) Where the plaintiff wants to
dismiss the case.
a. Stipulation of the parties
b. If by court order, normally will require P to pay Ds attys fees
c. Plaintiff may dismiss (unilaterally) without prejudice once by
serving a notice of dismissal before the defendant serves her
answer or motion for summary judgment.
i. Why? If parties are close to settlement and dont want
pressures of discovery to interfere.
ii. Tactical error fail to answer gives P opportunity to refile
in another jursd. (Texaco v Pennzoil pg 530)
D. Settlement a form of contract, no court approval needed
a. Why do companies do it?
i. Faster and cheaper (some times) than continued litigation
ii. Risk mitigation: juries are unpredictable and all or
nothing possibility
1. Courts cant split the baby
a. If you do split the baby, both parties buy in
iii. Bad press
iv. Discovery and lost trade secrets (Practical vs actual
assurances)

48

b.
c.

d.

e.

49

1. Discovery for motions are public docs unless Court

provides a confidentiality order (discretionary)
2. Discovery for a judgment is usually public
3. Even non-public docs might get leaked (by clerks)
4. Can request a protective order prior to discovery
(discretionary)
Why do Ps do it?
i. Trouble getting next job
ii. Risk mitigation
Attorneys interests
i. Contingent fees - Minimize costs / maximize net income
if settle many cases vs try one
ii. Hourly fee dont settle to maximize earnings
Cons of settlement
i. Under-enforcement of rights: settlement buys off private
attorneys general
1. Impedes progression of common law
ii. Systematically benefits the more powerful
iii. If other party doesnt comply with terms, a new suit is
required
1. If original matter provided fed court SMJ, breach of
K likely wouldnt so lose chance to go to fed court
(absent diversity claim)
Options
i. Pre-filing agreement not to sue
ii. Mediation
1. Judges can mediate via Rule 16(a)(5) facilitating
settlement goal during conference
iii. Summary jury trial (mock trial where parties agree to be
bound by mock jury result)
iv. Contract to dismiss claim dont need court approval
1. Parties specify scope of settlement (res judicata doesnt control)
2. Exceptions:
a. May need consent decree for attys fees
b. Rule 23(e) for minors, multi-defendant suits
and other matters
3. Alternatives to court approval
a. Certain statutes requires specific form of
settlement (Age Discrimination Claim
Settlements)
v. Settlement agreement entered into as a judgment
by the court (not the same thing as a consent decree)
1. Avoids the issue of losing SMJ in fed court since
settlement agreement is normally not of federal
origin
2. Deemed to be final judgment for jurisd. purposes
and for res judicata rules (modifying what would
otherwise be an agreement about scope of
settlement)

3. Matsushita Elec Ind v Epstein pg 544 parties had

two claims arising out of same matter, with
different attys one fed (which could only be
asserted in fed court) and one state. State court
attys entered into a global settlement of all claims
including a consent decree. Even though state
court didnt have SMJ over fed claim, that
settlement agreement applied to fed claim as well
due to res judicata rules in this state.
a. If you want to know if court approved
settlement of exclusively federal claim
can be done by a state court, you must
look to claim preclusion rules of that
states courts
i. This is due to the federal courts
reference to state law, which is
required by federal statute - the Full
Faith and Credit Act 28 USC 1738,
which gives state courts full faith and
credit to change this rule, US
Congress must change it
1. If state court which approved
global settlement had a res
judicata rule that said they cant
settle federal matters, then
federal claim wouldnt have
been precluded in federal court
a. Makes for a patchwork
result on this issue,
depending on which state
court approves
settlement.
ii. If it had been pure settlement
agreement (without court approval),
its not clear whether the settlement
agreement would control scope of
settlement rather than state res
judicata rule
iii. The res judicata procedural rules in
the relevant state likely wont be clear,
so it will be a basis for argumentation,
based on case law
iv. Matsushita is a pro-settlement case,
but benefit is limited, since you can
still globally settle in federal court
rather than state court
1. Also, most federal claims can be
brought in State court.
Matsushita dealt with one of the

50

few federal claims which must

be brought in federal court
vi. Alternatives to full dismissal
1. Stipulate liability but try damages
a. Alleviates some of the bad PR (Exxon)
2. Stipulate damages, try liability
a. Brings certainty (high / low approach)
f. Settlement contract may include a confidentiality agreement about the terms of
the agreement and/or the underlying dispute
i. Kalinauskas v Wong pg 550 confidentiality provision didnt apply to
subsequent litigation - party who previously settled and was later
subpoenaed to be deposed in litigation involving same basic subject but a
different plaintiff/defendant could be deposed.
1. Per protective order defendant sought - Non disclosure reqs still
applied to settlement terms
2. Confidentiality agreement cant contravene public policy (hinder
other litigation)
a. Outside of litigation, agreement would be respected
E. Arbitration contract for private adjudication
a. Pros Arrange hearing dates and locations better for parties, design own
procedure, no public disclosure of publicity, expertise of arbiter, avoid
uncertainty of jury, choose different procedures, and even substantive law
b. Cons Binding and results not appealable (absent procedural irregularity)
i. Courts will enforce arbiters judgments
c. Other differences to litigation parties choose adjudicator (pick someone with
technical knowledge), often less expensive (changing rules of discovery, allow
witness to testify by affidavit, speeding up process). But arbitrator is expensive
and facility isnt free. Arbitrator is free to do justice as he sees it. Can use
different procedural and substantive rules.
d. Arbitration can occur at many points during dispute. Can be at outset (in
contract), to mid litigation.
i. Once party agrees to arbitration, cant back out.
1. Unless unconscionable , under duress, etc (normal K limits)
2. Ferguson v Countrywide pg 559 Employers arbitration clause
was unconscionable. Terms were highly skewed to benefit
Countrywide and employee had no ability to negotiate other
terms. Both substantive & procedurally unconscionable. Clause
wasnt just a cost saving measure but Countrywide sought to
advantage itself by tilting playing field.
a. Not all employee agreements are unconscionable. These
terms were just so one sided.
b. Used traditional procedural and substantive
analysis, consistent with relevant law in this state
ii. Federal Arbitration Act (FAA) encourages enforcement of
arbitration clauses and speedy dispute resolution
1. Before the act, state law would determine if the arbitration
provision is valid. The act supported arbitration so it made it
enforceable. FAA is a federal law of contract
2. Must look at state law

51

3. While some states rule arbitration clauses unconscionable as a

matter of law, FAA will override and allow clause if not actually
unconscionable or a matter of duress (under that states K law),
etc. (save upon such grounds as exist at law or in equity for
the revocation of any contract)
a. Result federal incorporation of state common law
4. FAA doesnt create federal SMJ for appeals of arbitration
provisions
5. FAA allows federal courts to enforce some procedural steps in
arbitration proceedings.
6. AT&T Mobility v Concepcion pg 565 state law (Discovery
Bank rule) treated arbitration clause as unconscionable as a
matter of law if it was intended to deprive consumers of remedy
(as it deprived P ability to arbitrate as a class action and amounts
were too small to otherwise litigate). Since it conflicted with
Section 2 of FAA, state law which treated arbitration clause as
inherently unconscionable because of class action waiver didnt
apply.
a. Court said class arbitrations are violative of the FAA.
Any state rule which requires it will not be given
effect.
i. Allows companies to use arbitration clauses
which dont allow for class action proceedings.
b. But could still be ruled unconscionable based on
underlying terms of agreement.
e. Results of binding arbitration cant be reviewed. Courts can only review whether
arbitrator acted within scope of authority
i. Ferguson v Writes Guild p 576- Dispute over movie credit P agreed to
arbitrate. Even though procedures didnt seem fair, they were done
consistent with procedures articulated in agreement so no judicial review.
f. Courts only intervene a) to require party to arbitrate when they agree to it and
dont do it (order compelling arbitration), b) enforce arbitration awards (absent
egregious deviations from agreed upon procedures)
F. Motion for Summary Judgment: rule 56: very different from 12(b)(6)
a. 12(b) motions brought early on and rule 56 is brought generally later on after all
of the discovery rules.
b. Asks court to rule in favor by looking at facts gathered in discovery
c. Moving party must show that there is no genuine issue as to any material fact,
and that she is entitled to judgment as a matter of law.
i. Court looks at admissible evidence only
1. Affidavits - things that are sworn too and under penalty of
perjury: can only swear to items of personal knowledge per
Rule 56(c)
2. Discovery - depositions, documents and answers to
interrogatories
ii. Court looks also at admissions
1. Rule 36 admissions (admitted or failed to deny)
2. Pleadings are normally not admissions or evidence, except for
limited scope under Iqbal (not sworn to unless verified pleadings

52

d.
e.
f.
g.

53

but VERY rare) BUT can be admissions IF: if not denied

(alleged A, B, and C and D denies only A and C to B is admitted)
iii. Court looks at all this evidence and admissions and asks one question: is
there an issue or genuine dispute on a material issue of fact? If there is
we must deny (doesnt look to see which side is likely to winjust if
there is evidence to be weighed by the jury).
iv. Two motions at trial have this same standard and do exactly the same
thingthey are the same thing but function at different times during trial
v. Courts are careful about SJ and taking cases away from jury
1. Therefore; always resolve doubts in favor of non-moving party
2. Always a discretionary motioneven if meet the standard the
judge does not have to allow the motion
If motion for SJ is premature, Court can defer under 56(d)
Can bring Rule 56 motions on all claims or part of claims
If a case survives to Rule 56 motions, and Court denies motions, this is a likely
place for settlement
Celotex v Catrett pg 585, Relaxed summary judgment standard (now its much
more common) Absence of evidence will be enough for summary judgment;
D need not offer proof that negates Ps claim, only that P has failed to offer
sufficient evidence to meet its burden of proof.
i. This case changed the earlier Adickes standard, which said D had to have
evidence to affirmatively disprove Ps case. Absence of evidence wasnt
sufficient.
1. Unintended rules - Celotex forces P to show evidence for each
element even if D has no refuting evidence there.
ii. Impact of Celotex to litigation process P must gather evidence much
earlier in the process than before Celotex cant wait until trial to do so
because other party will undercut you with a summary judgment request
1. Heightens importance of discovery P must have all required
info. to prove claim buttoned up by end of discovery
a. Diminishes importance of trial
i. But, epistemic uncertainty exists without a full
trial, theres factual uncertainty
b. Makes unknowable facts a gatekeeper for successful
litigation (Epistomological uncertainty). If fact is
unknowable, before Celotex, P might still get a favorable
jury verdict (absent directed verdict See Reid v San
Pedro below). Now you dont.
iii. Analysis is based on available information at the time summary
judgment is requested (assuming sufficient time for discovery has
elapsed) Rule 56(d) allows non-movant additional time to get more
facts
iv. This decision aligns burden of proof requirements during summary
judgment proceeding with trial (before there was a disparity)
1. Before Celotex, D had to prove items during SJ that they
wouldnt have to prove at trial
v. While moving party still bears a burden of proof, if the defendant is the
movant, only burden is to point to evidence in record that P hasnt
provided sufficient facts to sustain burden of proof in Ps claim
1. Burden of proof isnt one of affirmative disproof

vi. Most applicable when movant is D. If movant is P, they would normally

have to bring evidence anyway.
1. Exception affirmative defenses (which D would need to bring
evidence)
a. Dont make mistake that ONLY P has burden of proof
h. Bias v Advantage p 591, D shows absence of facts necessary to prove Ps claim
is sufficient for summary judgment
i. Ps agent, D failed to get life insurance for Len Bias. D had facts to
support that Bias was uninsurable due to drug use and P had no facts to
dispute this claim.
ii. Used Celotex to show P would not be able to meet its burden on required
elements of case.
iii. Courts logic - Problem with Ps response to Ds motion is Ps evidence
did not rebut Ds evidence. D had eyewitness testimony of P using
drugs. P had friends saying they didnt know he used drugs. Not a direct
counter. Both could be right.
iv. Non moving party must come forward with specific facts showing
theres a genuine issue for trial and cannot simply show
metaphysical doubt as to facts Matsushita v Zenith (SuCt)
v. Court must draw from the evidence all justifiable inferences in favor
of the non-movant Anderson v Liberty (SuCt)
vi. To defeat SJ request, P would have needed to show they either had a
rebutting evidence or impeach Ds evidence that he wasnt a drug user.
Then it would have been an issue of fact.
vii. Rosen says this is an unusual case to grant SJ. Some courts would, but
some would say this is a genuine issue of material fact. play in the
joints. Reasonable people could disagree on this one.
viii. When courts grant SJ they are doing some fact finding. When it comes to
deciding these motions, there is discretion by judges
XI. Trial and Related Motions
1. Rule 16(e) pre-trial conference
a. McKey v Fairbairn pg 599 during pre-trial conference, P agreed to what her
claim would be and what evidence shed introduce. In light of evidence
discovered once trial started, P wanted to adjust claim and add evidence. Court
denied request. Upheld on basis that original Court had justifiably large
discretion. Once trial starts, party may be locked into its story. Pre-trial
conference may be last chance to bring a legal theory forward.
2. Motion for Judgment as a Matter of Law (directed verdict) Rule 50(a)
a. Granted when party hasnt met its burden of production
b. Evidence must give a reasonable jury a legally sufficient evidentiary basis to
find for party
c. The judge steps in and takes the decision away from the jury (so it is necessarily
tough to get).
d. You can move for this any time after trial starts, but typically done after the other
side has had its chance to present its case (so D might move twiceat end of Ps
evidence and all the evidence)
e. Same question and review as SJ but just different timing
f. Standard commonly stated for JMOL: no legally sufficient evidentiary basis for
a reasonable jury to find for the party (law requires A, B, and C and you only put
on evidence of A and C. No way you reasonable person could believe you met

54

all three) this language results in overlapping powers between judge and jury to
assess strength of all of the evidence
a. Reid v San Pedro pg 603 cow on tracks could have gotten on tracks
through gate in pasture (owners responsibility) or broken fence (RR
responsibility) each just as likely inference for D (RR). P had burden of
production cow came through fence and failed to do so. To let case go to
jury, evidence cannot show equal plausibility between P & Ds positions.
b. This isnt a violation of due process because right to a jury trial (7 th
Amendment) doesnt apply to states. Furthermore, federal courts have
concluded motions for judgment as a matter of law dont violate the 7 th
Amendment.
c. Pennsylvania RR v Chamberlain pg 649 Credibility determination should
be left to jury. Judge can take away only if witness is completely
unbelievable. Ps eye witness testimony was impossible to believe given the
distance & angle from event; and D had witness contradict Ps witness
testimony so JMOL is appropriate. Even though there was competing
evidence, the Ps witness was completely implausible (stronger than simply
not credible).
i. Rosen thinks Supreme Court got it wrong. Judge did make a
credibility determination (which they shouldnt).
b. Lind v Schenley Industries pg 658 Employee claimed there was an oral
contract for him to be the second highest paid employee. Court of appeals
reversed trial courts JNOV, which was granted on appeal, said judge had
improperly substituted his interpretation of witness credibility over jurys.
Jury has larger role than judge in this regard. Even if judge disagrees with
Jury.
i. 13th juror issue judge cant act in juror capacity
ii. Interestingly, appellate court didnt just reverse JNOV but also
judges granting of a new trial if JNOV is reversed (therefore jury
verdict had to stand) this is a rare slap down for exceeding judicial
discretion in inserting judges own opinion on credibility
iii. Articulates another standard for disregarding jury verdicts judge
should only grant to prevent a miscarriage of justice
1. Best read, this would only apply to JNOV ruling (and not
new trial ruling)
2. Circuit courts diverge on whether this is an appropriate
standard
Right to a Jury Trial - 7th Amendment (applies only to federal civil courts) 6th Amend
applies to criminl
1. Must demand right to jury under rule 38(b) (w/in 14 days of last pleading) and this right
is waiveable
2. if judge decides facts it is called a bench trial
3. Seventh Amendment (applies only fed cts and not state cts (one of only bill of rights
amendments not incorporated through 14th amendment to apply to states although many
states have similar statute)
a. Applies only to issues not to cases
b. Doesnt bar juries, just guarantees right in certain circumstances
c. Only applies to civil cases in fed ct and not criminal (covered by 6th
amendment). Preserves the right to a jury trial in actions at law, but not at
suits at equityit does not grant but preserves so locked into historical test of

55

what would be allowed at common law in 1791 (year they ratified 7th
amendment) and its the common law of England
i. Law and equity develop different remedies jury only hears court of law
matter (not chancery / equity courts)- but law & equity courts merged in
1938
1. Basic common law damages is money to compensate for harm
2. Equity gives different damages that developed to cover areas
where damages really didnt make person wholeclassic equity
remedies are:
Injunction
Specific performance
Reformation and rescission of K
What about mixed cases?
i.e., Breach of K damages (common law) and D
counter rescission of K (equity) judge has
discretion on equity remedy but would need
to follow jurys substantive determination
ii. To apply today: two step approach 1) locate
closest historical analogy of type of claim,
assertable in 1791, if none 2) what type of
remedy is sought
1. This isnt very clear. Theres case law which provides answers
whether most claims have a jury right.
- Writs of replevin and ejectment, for example, is a legal
and not an equity remedy (therefore, can get a jury)
2. Congress also provides statutory jury rights (for certain claims).
4. Why do juries matter?
a. Perception is juries are pro-plaintiff. Recent social science doesnt clearly
support this theory. Understanding may change going forward.
b. Most countries dont have juries & few that do limit their use more than U.S.
c. Right to jury was very important to US founders independent of the crown
i. Juries stand between parties and justice system
d. Rosen says citizens are more skeptical of juries than judges are.
e. Juries make verdicts easier to swallow (self-government values)
f. Check on the government (jury nullification)
i. Protect against over-zealous prosecutors
ii. Disregard unjust laws
5. Complications
a. Nature of Issue
i. The legal nature of an issue determined by considering first the premerger custom with reference to such questions; second, the remedy
sought; third the practical abilities and limitations of juries.
1. Pre-merger means pre 1938 before distinction of law and equity
Only 1 of 3 factors
b. What if there are both legal and equitable claims?
i. Issue by issue, not case by case
c. What if a legal and equitable claim, in the same lawsuit, share a common issue?
i. Common issue is a factual matter that must be found to answer and
element of a claim. Sometimes a given fact applies to both legal and
equity matter.

56

1. Jury decides that issue with regard to both legal claim and judge
is bound by the decision
2. EX: P brings a case asking for injunction that asks def not to
interfere with a contractual relation of P and 3rd person.
Selection of a Jury
1. Pool of jurors is assembled per 28 USC 1863-1864 & 1866, individual jurors are
challenged per 28 USC 1867(c)
a. County clerks have differing methods for selecting pools
b. Population profile of federal districts differ from states affects jury composition
i. Federal districts are larger
c. Voir dire - Entire pool is asked series of questions, then individual jurors are
asked questions (which may form basis for a pre-emptory challenge)
i. rules vary whether judge or attorneys ask questions usually judge for
federal and atty for state
2. Rule 48 6-12 jurors with unanimous vote for verdict
a. Each side has unlimited strikes of potential jurors for cause
Personal relationships, predisposition for/against a side this is the
courts responsibility (sua sponte) once peremptory challenges are
exhausted. This is because fair juror is a key component in justice.
- Thompson v Altheimer & Gray pg 619 racial discrimination
case: juror dismissed for cause: small business owner who
though some people filed spurious claims against employers.
Judge asked all jurors if they could judge case fairly. Judge did
not individually ask juror for an individual, unequivocal
response. Appellate Court, in abuse of discretion review, said
Judge should have elicited an unequivocal statement from juror
that her experience will not impact how she views the evidence.
a. Discussed harmless error standard (if error affects
outcome, trial judgment must be reversed)
i. Standard doesnt apply to appeals of biased
jurors because this is such a big issue (even if
error is harmless, still grounds for reversal)
b. Rosen suggests solutions to this issue:
i. Judge should dismiss any juror with any
question as to bias
ii. Follow up questions by judge should be done in
private (rather than as a group)
iii. Judge should describe their jury decisions as
credibility assessment, which will make
standard of review a bit higher
b. Each side has three peremptory strikes (judge made law).
i. However, you must have a race-neutral and gender-neutral reason for
using peremptory strikes (if theres a pattern to attys objections, reason
will be assumed)
- Edmonson pg 624: even though civil case between private
litigants, the selection of a jury is still state action and court will
not allow race based discrimination a state action.
- J.E.B. v AL pg 624 expanded to gender neutral basis
ii. Other party may challenge basis for peremptory challenge

57

Role of Judge
1. Judges are ruled by Canon 3B(4). 28 USC 351 provides mechanism to file
complaints against judges for bad behavior, requiring investigation by the chief judge in
each circuit.
a. Violation doesnt remove judge from case, though.
b. Violation can result in discipline, though.
2. Some states allow peremptory challenges of judges. Normally get only one such
challenge.
3. Recusal is required by 28 USC 144 if judge discovers reasonable basis for recusal or if
party makes a motion with an appropriate basis, based upon criteria in 28 USC 455 for
impartiality. Impartiality defined as either:
a. Previously served as lawyer in this matter before becoming a judge or family
has a material financial interest, or
b. If impartiality might reasonably be questioned.
c. Caperton v At Massey pg 629 application of state recusal statute created the
2nd prong for recusal - president of one of the parties donated $3 mil to judges
election. US Supreme Court said it would deny due process to allow him to hear
case because of appearance of bias. Also of relevance is whether the average
judge in his position is likely to be neutral or whether there is a potential for
bias.
i. US Supreme Court intervened in state court matter since it was an issue
of due process
ii. This is a floor level for Judge objectivity (canon or statute may have
stricter limits)
d. 28 USC 455(e) provides a method for parties to waive recusal, but only in
limited circumstances
e. Recusals are rare. When requests are made, its normally done not on
constitutional grounds but based on federal/state recusal statute and/or canons of
judge conduct
Judicial Control of Juries
1. Rule 51 Jury instructions explain substantive law which applies to case, the sequential
way questions juries must answer to make decisions
a. Audience jury and appellate review
2. Excluding improper influences
a. Jury screening
b. Rules of evidence
3. Rule 48 - Jury size (6-12) and unanimous decision rules
a. Constitution is silent on size and decision rules
4. Judgment as a matter of law (Rule 50(a)) see above
Renewed Motion for Judgment as a Matter of Law (Judgment Notwithstanding the Verdict)
- exactly same criteria as JMOL, just different timing
1. Commonly known as JNOV Rule 50(b) The judge has let the case go to the jury, and
the jury has returned a verdict for one party. The court enters a judgment. The losing
party brings this motion and if the motion is granted, we take the judgment away from the
person who won the verdict and we enter judgment for the person who lost the verdict.
a. Must move within 28 days after judgment
b. Same method of review as Judgment as matter of law (no legal evidentiary basis
for a reasonable jury to find for the party)

58

2. Rosen doesnt care what title we give various judgments, just refer to them as Rule
50(a) or Rule 50(b)
3. Judges are more likely to grant Rule 50(b) motions than 50(a) motions because if (a)
is granted, there was no jury verdict, so if it gets reversed on appeal, you have to have a
whole new trial, whereas if it gets reversed after a 50(b) motion, may not have to have a
new trial
4. If a party wants to make a rule 50(b) motion, must 1st make a Rule 50(a) motion
(pre-requisite
a. This is because directed verdicts have historic precedent but JNOVs dont, under
7th Amendment (so rule 50(b) motion is treated as a delayed Rule 50(a) motion).
b. Therefore, 50(a) motions are standard practice
Motion for New Trial Rule 59(a)
1. Judgment has been entered but there have been errors at trial that require the case to be
retried.
a. Awarded when judge realizes flaw in:
i. Procedures, ex. lawyer makes impermissible argument to jury, erroneous
jury instructions, inadmissible evidence in introduced, new evidence is
discovered after trial
1. Cant use a jurors testimony to impeach the verdict, though
a. Peterson v Wilson pg 665- jurors statements to judge
after trial couldnt be used to conclude that jury ignored
judges instruction and be a basis for a new trial
i. Also articulates great weight standard
b. Only federal exception to rule is evidence that a juror
relied on extraneous evidence to reach verdict
c. Jury deliberations are black boxed because
i. Need for confidentiality (to ensure jurors are
comfortable fully participating)
ii. Sausage analogy dont want to know what
goes into sausage (we dont really know who
deserves to win & juries are best we have to
resolve it & dont want to undermine it)
iii. Finality
1. Reasonableness
2. Public choice (group dynamics)
d. Special verdict (Rule 49) & general verdict with
interrogitories do require jury to answer questions
rarely used because jury statements can then be used for
basis for reversal
i. Litigator must ask the court via motion to ask
the jury for this
ii.
ii. Verdict, ex. jury mis-applied instructions, verdict is against weight of the
evidence
1. But, cant be 13th juror
b. Timing: Must be no later than 28 days. 59(b)
c. Errors at trial that require a new trial
d. If granted the judge was not comfortable with something in the trial that may
have affected the outcome
i. Almost limitless grounds for moving for this

59

e. Compare with Judgment as a matter of law

i. Standard is lower and less explicit for new trial granted when there
may be evidence to support verdict, but verdict is against great weight
of the evidence or there are procedural issues or new evidence
1. Standard is in case law, not in Rule 59 itself (Rule 50 standard is
in rule itself)
2. Dont have to say no reasonable jury would conclude
3. Cant say there was no evidence, just that it was thin
4. Some courts (Lind pg 658) also use standard of granting new
trial to avoid mis-carriage of justice
5. Rule 59(d) gives judge authority even if neither party moves for
it
f. Rule 50(c) can make a JNOV motion with a contingent motion for a new trial
all at same time (this is a single, combined motion)
i. Court may grant both at the same time so that if JNOV is reversed, there
would be an immediately effective order for a new trial (rather than
reinstatement of jury verdict), unless appellate court reversal specifically
holds for a reversal of judges ruling without a new trial (See Lind above)
1. Judge might do this because he wants to ensure theres a new
trial if JNOV is reversed
ii. Ds Attorney would make this combined motion, because standards for
JNOV are different than a new trial
g. Impact of Final judgment rule
i. Grant of a new trial is not an appealable final judgment (would need to
wait until new trial has ended).
ii. JNOV is an appealable final judgment
h. New trial can involve all issues or merely be a partial new trial
i. Example: court could say liability settled but need new trial determining
on damages along
ii. Reduction in verdict (remittitur) Court can play hardball in situations
like this: i.e., P gets $150,000 verdict but court say shock conscious and
tells P will order new trial unless remit to $30,000
1. Court cant just lower amountonly offer lowered amount or
new trial
2. Can work both ways: called additur (jury sets damages too low
a. Unconstitutional in fed cts (violates 7th amendment:
Demik vs Schitz pg 664) but could do in state cts (since
7th amendment doesnt apply to state cts) but state law
may disallow as well
i. Remittitur is constitutional
ii. Theory is remittitur modifies an award whereas
additur creates an award out of thin air
Preclusion Doctrines common law rules not yet codified into
statute commonly referred to in its entirety as res judicata
1. Claim vs issue preclusion
a. Claim (previously called res judicata) cant litigate a claim
you should have brought in a previous lawsuit
b. Issue (also called collateral estoppel) cant re-litigate an
issue which has already been decided

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2. Claim Preclusion (res judicata) all claims from a single event

must be brought at same time
a. Goal efficiency (impel consolidation of suits to avoid
unnecessary cost to courts of trying and defendants of
defending multiple suits) and consistency
i. But, RJ raises litigation costs if you have to assert all
claims at one when you would be happy with winning 1 st
claim
b. (13(a)(1)) a counterclaim must be made at the time of
defendants time of service or its lost
c. Waived if not stated as an affirmative defense (Rule 8(c))
d. Court can still sever claims (Rule 42(b))
e. Normally claim preclusion requested as a Rule 56 motion rather
than a Rule 12 motion because defendant needs to attach
judgment from earlier case, which is something outside of
pleadings (and Rule 12 is only on pleadings)
f. Only applies to claims in existence at time of original suit (if new
claim arises after suit begins, will not be precluded)
g. A failed defense (such as fraud defense to breach of K), once
judgment is rendered, cant then be used to assert a claim
on its own (Cromwell v County Sac pg 726).
i. Similarly, failure to state affirmative defense youll lose
ability to use the defense offensively
1. Sole codification of RJ - Rule 13(a) requires
counterclaims to be stated at time of
pleading (cant bring up as separate claim
later)
h. RJ applies in any of the following (pg 738) privities:
i. Agreements by parties to be bound by prior action
ii. Pre-existing substantive legal relationships
iii. Adequate representation by someone with same interest
who was a party (trustee, guardian)
1. Taylor v Sturgell pg 735 US Supreme Court said
virtual representation is not the same thing as
actual representation (FOIA requests for engine info
by two friends), therefore, cant be used for
preclusion purposes for federal CL purposes
a. Doesnt impact state RJ rules (but virtual
representation may violate due process
limitations Court didnt specifically rule on
this issue)
2. May be interpreted to mean the prescriptive
easements dont flow to new landowner
iv. Party assuming control over prior litigation
v. Party loses suit individually cant be a member of a class
action and vice versa
vi. Special statutory schemes (bankruptcy, probate, etc)
i. Doesnt apply if parties are different eg. wife sues 3 rd party for
accident which also involved husband. Husband can still later
sue for same accident.

61

i. See Searle (below)

ii. Exceptions for privity but must be same exact legal right
which has transferred, though
j. Applies when final judgment on the merits of claim occurs to
plaintiff in the 1st action on claims that were or should have
been raised against a particular defendant
i. Two cases involve same claim if party uses the same
legal theory to recover against the same party based
on the same underlying facts
ii. Factually related claims are considered the same claim
1. Majority (fed and most states & 2nd Rstmt on pg
723) arise from same transaction,
occurrence or series of
transactions/occurences broader view
2. Minority (some states including IL at the time of
Frier)- Same cause of action test based on
considerable overlap of evidence (narrower
method) required to sustain cause of action (eg
operative facts to prove elements of cause of
action)
a. Frier v City of Vandalia pg 717 IL used
same cause of action approach cars were
towed. Brought action in state court for
replevin. State court decided for city based
on seizure itself and not process
requirements. He then brought federal due
process action under 42 USC 1983. Trial
Court rules on substance of Ps constitutional
claim (and held for City). Appellate Court
applied ILs cause of action standard for
claim preclusion to say the elements of
both claims (and necessary facts) are
essentially the same so even though state
court didnt look at all the issues, it still
precluded federal claim.
i. Rosen thinks majority got it wrong
operative facts very different between
replevin & due process
3. Fed courts look to claim preclusion rule for
underlying jurisdiction (See Semtek) from original
claim. See pg 725 for diversity suits.
4. If you have a claim which is strictly fed and you
cant litigate in state court and a claim which is
state need to look to states RJ rules to see what
the impact is. Party may be able to use
supplemental jurisdiction (pendant) to pull state
claim into federal matter, for example (either
through Ps claim or Ds counterclaim).
5. If you have power to transfer your case to a venue
that can hear all of your claims, that will generate

62

claim preclusion, even if you brought suit in a

venue with limited jurisdiction.
iii. Final judgment on the merits
1. Trial court verdict is final judgment. If its appealed,
though, some courts will postpone claim preclusion
determination until appeal is resolved. See Rule
60(b)(5) for another approach.
2. Many ways claimant can lose that dont seem to
involve merits of the case. Ex. 41(b) involuntary
dismissal: could have case dismissed for failure to
prosecute
a. all involuntary dismissals are treated as
adjudication on the merits unless based on
jurisdiction, venue, or indispensable parties
or court says not on the merits (without
prejudice)
i. Even though some 12(b)(6) dismissals
are procedural rather than substantive
ii. Not all states treat 12(b)(6) as
dismissals on merits (and therefore
final judgments for purposes of claim
preclusion)
iii. Without this rule, dismissals would
have no bite just file in another
venue
b. However, in Semtekcourt ordered
involuntary dismissal (b/c barred by CA SoLs
and P then brought same claim in state court
in Maryland) that was not based on
jurisdiction, venue or indispensable parties
so 41(b) seems to say should be seen as final
adjudication and RJ applies
i. SCOTUS said that on the merits meant
you could not re-file in CA courts. But
on the merits in this case meant you
must apply preclusionary doctrine of
first court which was federal but
SCOTUS said we can adopt state law
rule and CA state law would allow. So
what does this mean as far as federal
law and on the merits in relation to
rule 41(b)? 41(b) means you cant
re-file in first court but fed ct may not
govern in the other court as fed ct
may adopt state law of state sitting in
to apply to other court.
ii. If a case in one State is decided
on its merits and later filed in
another state, the second state
must respect the first states

63

ruling (this case involved

Diversity)
iii. InSemtektheCourtreadRule41(b)

narrowly,sayingthattheadjudicationupon
themeritslanguagemerelymeantthatthe
suitcouldntberefiledinthesamefederal
court.Regardingpreclusion,thecourtheld
thatthepreclusiveeffectofafederalcourt
judgmentwasinsteadamatteroffederal
commonlaw.Regardingdiversitycases,
federalcommonlawwouldusuallybe
determinedbyusingthepreclusion
principlesofthestateinwhichthefederal
courtsat.SeeSemtek.Forfederalquestions,
federalcourtsmaydevelopuniformrulesof
federalpreclusionlaw.SeeTaylorv.
Sturgell.

iv.
c. Gargallo v Merrill lynch pg 745 no uniform
CL rule governing whether state court
judgment precludes federal claim. Instead,
must look to state law. Claim initially filed in
state court. Dismissed with prejudice for
lack of discovery participation. After he lost,
filed a securities fraud claim in federal court
(for same transaction), which state court,
couldnt have heard. Court said state rule
where the claim was originally filed
applies. State rule said this was an on the
merits judgment but also said no RJ if no
SMJ. Therefore, fed court can hear this since
state didnt have SMJ over federal claim.
k. RSTMT 26 (pg 772) carves out exceptions to RJ for unusual
circumstances
Issue Preclusion (Collateral Estoppel) RSTMT Section 27:
1. Narrower than RJ but cuts deeper (bars subsequent claims for different
cause of action, but same issue with RJ, need not actually litigate the
claim to be precluded. With CE, there must have been a litigation for
preclusion to occur.
2. Not a 7th Amendment violation because party had right to jury in 1 st
trial.
3. Black letter law:
a. When an issue of fact or law is
b. Actually litigated and determined by
c. A valid and final judgment, and
d. The determination is essential to the judgment.
4. Effect of CE is to say that issue is deemed to be established in case 2

64

a. Example: claim 1 involves A, B, and C while case 2 involves X, Y,

Z, and A
b. If we have CE in case 2 we are going to deem issue A is
established for case 2 and will only litigate X, Y, and Z in case 2
c. CE in very mechanical and involves these 5 steps
i. Show that Case 1 ended in a valid final judgment on the
merits.
1. Same as RJ step
ii. Show that the same issue was actually litigated and
determined in Case1
1. Not enough that issues overlap but it must be
litigated and determined
2. Diff from RJ: CE requires litigation to bar an issue
while RJ can bar a claim that was never litigated
(default judgment can bar under RJ but not by CE)
dismissal on procedural grounds may bar under
claim preclusion but wont bar issue preclusion
a. If a theory (such as a defense) was not raised
in suit 1, would be barred under claim
preclusion. Generally not barred under issue
preclusion, though, since issue wasnt
litigated previously.
i. But, failure to raise a defense will
result in claim preclusive effect so it
cant be transformed into an offensive
claim.
3. Criminal and civil proceedings have different
burdens so criminal proceeding may not be bar
issue for civil purposes (lower standard)
4. If court could have reached result in 1st case in
more than one way, issue preclusion doesnt apply
to 2nd case with same fact.
a. Illinois Central RR v Parks pg 751 couple
injured in RR crash. In 1st suit wife sues for
personal injuries and husband for loss of
consortium. He loses. He then sues for own
injuries. Not barred under issue preclusion
because he may have lost 1st claim because
he was negligent or because there was no
consortium to lose. Issue of his negligence
wasnt adjudicated in 1st case so issue not
precluded.
i. Wasnt barred under claim preclusion
because Court used cause of action
approach instead of same transaction
approach
b. RSTMT 27 says extrinsic evidence can be
used to establish what issues were litigated
in 1st case

65

iii. Show that the issue on which we want collateral estoppel

was essential to the judgment in Case 1.
1. Without that finding we would not have the same
judgment or result
2. Courts are split if a verdict based on multiple
reasons per Rule 52(a) have issue preclusion
effect for each position (current RSTMS 27 says all
positions are precluded but some jursd say none
are precluded).
a. If youre a defendant and you believe a
federal judge would be willing to dismiss a
case based on both no SMJ and PJ basis
(youd normally want all rationales included
in case on of the rationales is reversed on
appeal), but for issue preclusion purposes, if
you provide 2 or more basis for preclusion,
then P could refile in same state court
because the two basis for issue preclusion
would not be considered by state court. If
the D only provided personal jurisd as a basis
for dismissal, state court could not consider
due to issue preclusion.
iv. Against whom is collateral estoppel being used? You can
only use collateral estoppel against someone who had
adequate opportunity and incentive to litigate Case 1.
1. Or in privity: includes representatives or successors
in interest but doesnt broaden CE too much
a. Searle Brothers v Searle pg 728 in divorce,
W awarded entire house. H claimed his
was owned in pship, though, with his sons.
Pshp wasnt party to divorce. Pship brought
suit in separate claim against W. W claimed
issue preclusion on who owned property.
Court said no partnership wasnt party to
1st suit some didnt have chance to litigate
matter.
b. Resulting doctrine (applies both to issue and
claim preclusion): RJ can only be applied
against a party to both claims
i. Exception those in privity
1. partnership generally not in
privity with its partners
2. sons not in privity to parents
divorce
ii. How to deal with this issue of parties
not bound by previous judgment
declaratory judgment on who owns
property, agreement by parties to be
bound by original judgment,
interpleader arrangement

66

2. Due process requirement: required in all court as

comes from constitutioncannot be waived
v. By whom is collateral being asserted? Mutuality is not
required by due process. Not a due process issue so
jurisdictions can take different approaches
1. Mutuality: says that only can be used by if
adversaries were parties in both cases.
a. Has been eroded over the last years to allow
more CE even by adversary not party in case
1 against adversary who was a party in both
cases (can erode since not constitutionally
based)
2. Non-mutuality is available in many states and in
Fed Court, but have different limits (and is only
available against party in original suit or
party in privity with that part otherwise, a due
process violation).
a. Offensive use (trying to recover on a claim
in 2nd suit) use subject to limits
i. Problems created by non-mutual
offensive collateral estoppel can
reduce judicial economy (results in
step by step approach, where P waits
for a favorable verdict against D and
then brings suit, even though there
may be differing verdicts earlier on).
See Class 32 chart in slides. Another
problem, if 1st P against D wins, all
remaining Ps can invoke CE when
there could have been extenuating
factors for 1st Ps victory (eg. bad jury).
This isnt a problem if you have faith in
accuracy of system. Per Parklane,
below, disregard this 2nd concern
1. Since not all Ps are created
equal, if there are multiple suits,
Ds attorney will make sure 1st
case which goes to jury is
weakest P (either settle with
attractive P or stall)
ii. Federal and majority state approach
allows non-mutual offensive use
normally unless, judge, at his
discretion, determines its unwise
because a) there are prior
inconsistent judgments, b) would have
been easy for party seeking to use
issue preclusion to join prior action
(and didnt), or 3) other reasons make
it unfair to apply issue preclusion.

67

Court has discretion, though. List

is not a requirement.
1. See RSTMT 29 (pg 771) for
detailed list where issue
preclusion might be
inappropriate & RSTMT 28 (pg
773) for general exceptions to
preclusion.
a. RSTMT 29 Sec 2 is most
commonly used
argument against issue
preclusion (administrative
differences between two
proceedings)
iii. Parklane Hosiery pg 759 both SEC
and shareholders bring separate suits
against D for same issue (securities
fraud) - discussed problem of free
riders (sit and wait for 1st judgment to
pay out and then use its benefit) and
inconsistent judgments (if multiple
trials are used to analyze the same
issue, may wind up with disparate
results) ultimately allowed offensive
use of CE with proviso that court has
discretion over whether to provide it
1. Resulting federal rule P2
can raise Collateral
Estoppell vs D if P1 was
victorious, but P3 may not if
there were inconsistent
prior results
2. As a result, if big D is sued for
negligence, they must
vigorously defend each suit,
even if small, because if they
lose negligence, they could be
precluded from litigating the
issue in the future
a. Makes it more difficult to
assess potential liability
for an issue (dont know
whos out there)
iv. State Farm v Century Home pg 767
State Court didnt allow offensive use
because there were inconsistent
results in prior cases vs defendant (fire
with one defendant and 50 Ps suits all
based on negligence P won 1st two

68

suits & D won 3rd suit at time of this

case).
1. Issue could have been dealt
with if same court heard all
matters or different Courts
coordinated their dockets
v. Kovach v District of Columbia pg 774
P pays ticket for red light camera
violation and then sues when camera
is taken down and unpaid fines are
forgiven because camera location was
confusing. Court says D can claim CE
because his payment of the ticket
was an adjudication so hes already
admitted guilt. Court chose not to
apply any of the policy or equity
exceptions noted in RSTMT 28 on pg
773. Rosen thought this was a harsh
ruling.
1. Adjudicative body need not
be a federal/state court, as
long as its acting in judicial
capacity & resolves disputes of
fact before it which parties have
oppty to litigate
2. Noteworthy appellate
court upheld trial court
verdict but on different
grounds
b. Defensive use (defending against a claim in
2nd suit) allowed without limits nonparty to 1st suit may use issue preclusion
against party to 1st suit now bringing claim
against party invoking issue preclusion in 2 nd
suit
i. Blonder Tounge Labs v Univ of Illinois
(not in book) allowed for non-mutual
defensive issue provision (pre-dated
Parklane) P lost 1st lawsuit, was held
to be contrib negligence. Same P
Brings 2nd lawsuit against different D
with same facts. D successfully
asserted non-mutual defensive issue
preclusion.
c. US Govt not subject to nonmutual
offensive CE (US v Mendoza pg 766)
otherwise, a single Courts determination of
a federal question could bind other districts
as a result, US would appeal every holding it
lost

69

i. Why do we care (since precedent

still applies)? If there were non
mutual offensive CE, fed would be
completely precluded from re-litigating
constitutionality of its actions in a 2nd
District. Whereas, with precedent,
theres a scheme weighing precedent
between Districts & Circuits. Non
mutual offensive CE is more
constraining than precedent.
1. RSTMT 28 (pg 773) provides a
list of exceptions to non-mutual
CE, including differing burdens
of persuasion between
proceedings this is persuasive
but not binding
Full faith & Credit
1. Requires courts from other jurisdictions to respect decisions rendered
(Article 4 of Const. and 28 USC 1738)
a. For federal courts: Full faith and credit statute 28 USC 1738
b. For State: Article 4 and 1738 apply
c. Applies even if original judgment is in error
2. As a result, claim and issue preclusion applies across state lines.
a. Sister states must treat res judicata the same as original
state
b. Based on RJ rules in original jurisdiction
c. Limits use of collateral attack
3. Exceptions
a. Judgment rendered without litigation of SMJ
i. Durfee v Duke pg779 dispute about rights to land along
shifting river separating NE and MO 1st litigated in NE
state Court. State only had SMJ if land was in state,
though. MO party raised SMJ defense and lost. Rather
than appeal in NE, he filed in MO state court (then
removed to federal court on diversity) as a collateral
challenge to determination of SMJ (as opposed to
appealing verdict in NE state court), and lost.
1. Held, as long as SMJ was fully and fairly
litigated by 1st court (eg. jurisd issue raised
at trial), it will be binding on a subsequent
court in another jurisdiction.
a. Subsequent court can still inquire if SMJ
was litigated in 1st proceeding, but
thats it (very limited).
2. Collateral challenges are highly dis-favored,
but not banished.
a. Examples subsequent courts inquiry if SMJ
raised in 1st proceeding, habeus challenge
petitions

70

3. US Supreme Court said nothing in their opinion

binds state as to where the border between MO and
NE actually is per Searle Brothers, we have
different parties for issue preclusion purposes
b. Judgment rendered without proper PJ determination (Baldwin
rule) can only collaterally challenge if defendant doesnt
appear and theres a resulting default judgment.
c. Interestingly, PJ challenges can be waived by defendants, but
SMJ challenges cant, so Durfee is more aggressive than Baldwin
Re-Opening a Judgment
1. If you dont like a cases results, you can appeal it, or collateral
challenge it, or request a new trial under Rule 59 or ask issuing court
vacate it (if theres been true injustice) under Rule 60
a. Allows for an option to re-try an issue which was not appealable
(new evidence, fraud by adverse party) Rule 60(b)
2. US v Beggerly pg 786 Rule 60(b)(1)-(3) motions have time limits.
In this case 1 yr. time limit per Rule 60(c) for Rule 60(b)(2) position
for D had expired. May still bring an action per Rule 60(b)(6) (other
reason) or (d)(1) (independent action), which would not be subject
to time limit. Beggerly brought a Rule 60(d) motion.
a. Why did Beggerly argue (b)(6) rather than (d)(1)? Beggerly had
discovered new evidence, which falls under (b)(2), which was
subject to time limit, so couldnt use (b)(6) because (b)(6) not
intended to cover items in (b)(1)-(5).
i. Rule 60(d), independent action, motion is very hard to
win, though. It requires new pleadings and has to be
done in federal court.
ii. Generally, lying at trial by witness is not a basis for
a Rule 60 motion but lying during deposition would
be. Because its lawyers job to ferret out the truth
during trial.
Joinder: determine scope of litigation
1. First ask: is there a Fed Rule Civ Proc that allows joinder of this claim?
2. Second: is this claim supported by SMJ and PJ (but see liberalized PJ
rules on 4(k)(1)(B))?
a. diversity or FQ or supplemental jurisdiction (28 USC 1367)
3. Rule 18(a) Parties can assert any and all claims once initial claim is
made
a. For additional claims, dont need transactionally-related or
question of fact or law in commoncan be completely unrelated
and anything goes
b. not just for Ps, in fact, once you become a claimant (crossclaim for example) this rule kicks in kicks in for TPPs
as well
c. this is just pleading, though, still have to check for SMJ over the
claims see pg 68 for this analysis
4. Judge can sever claims under Rule 42(b), though, to best manage
adjudication\

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5. Claim Joinder by the Defendant

a. Counterclaim A claim against an opposing party
i. Rule 13(a) compulsory counterclaim: arises from the
same transaction or occurrence as the plaintiffs claim.
Has a transactional relatedness requirement.
1. compulsory b/c: unless we have already sued on
this in some prior action we must assert this in the
pending action or the claim is waived and cannot
sue in subsequent separate action (RJ)
a. this is the only type of joinder claim that you
must use or youll lose
2. Rule 13(a)(2)(A) if claim is already on-going in
independent lawsuit, its not compulsory (but it
could be plead as permissive)
ii. Rule 13(b): permissive counterclaim, as a matter of
pleading, need not arise from same
transaction/occurrence.
1. Do not have to assert it in the pending action, but
you can. You will not waive it if you dont assert it
2. These are only the pleading rules that allow you to
join claimsyou must still show SMJ & PJ for
each claim
3. Not all states have such a broad pleading allowance
(as feds)
iii. A risk in filing suit for a P is a counterclaim which
may not have happened if P hadnt blinked 1st.
iv. Plant v Blazer Financial Services pg 798 borrower
defaults & sues lender in fed court for TIL violation (fed
question). D files counterclaim for state breach of K for
amount owing. If counterclaim is compulsory, SMJ
limits dont apply because supplemental
jurisdiction applies.
1. Articulated four distinct tests used by
differing circuits for same
transaction/occurrence test:
a. Are issues of fact & law raised by claim &
counterclaim largely the same?
b. Would RJ bar subsequent suit by D? (not very
helpful, given next two options)
c. Will same evidence support/refute Ps claim
and Ds counter? (similar to narrow test for
claim preclusion)
d. Is there a logical relation between claim &
counterclaim? (similar to broader test for
claim preclusion)
2. Court applied the logical relation test (for 5 th
Circuit)
3. Why did they battle over which type of
counterclaim it is? Fed court wouldnt otherwise
have SMJ or PJ over breach in contract claim by D.

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4. Decision pre-dated 28 USC 1367, supplemental

jurisdiction. There is no agreement within federal
courts between 1367s language and Rule 13(a)s
language. Majority of federal Courts have
understood them to be identical
a. Some federal Courts have understood Rule
13(a)s language as narrower if so, Court
can exercise supplemental jurisdiction
even over some permissive
counterclaim (which fails test for 13(a)
compulsory)
i. This can have clam preclusion
effects (could have plead claim
and didnt)
5. Rosen says Court sided with D which effectively
allowed 13(a) to trump TILA. P could have argued
this was not permissible under the rules enabling
act 28 USC 2072(a) & (b), though. Because
2072 says rules of federal procedure cant
abridge or modify a substantive right.
a. Some courts have accepted this argument
and some havent
v. Analytical steps: always look first to see if claim has
independent SMJ. If not then look to supplemental
jurisdiction
vi. Cross-claim Rule 13(g): A claim against a co-party
that must arise from the same transaction or occurrence
or same property as the underlying dispute claim
between defendants of original suit.
1. This claim is not compulsoryyou do not have to
assert it and you wont lose it if choose not to
assert it.
2. No equivalent to permissive counter-claim
3. If not a related claim (or same prop), must be
brought separately
4. More limited than counter-claims as a matter
of pleading (but still have to consider SMJ):
has transactional relatedness requirementmust
a. Arises out of same transaction/occurrence or
b. Relates to property which is subject matter
5. But, see Rule 18 below once transaction
requirement is established for 1st cross claim,
additional unrelated cross claims can be
brought
6. Rule 20 - Permissive joinder of Parties (requires jurisdiction, though)
a. Downside of not joining Ds - Expensive, possibility of issue
preclusion, defendant will blame unnamed parties
a. Joining plaintiffs permitted if

73

i. they assert right to relief jointly, severally or in

alternative, OR arising out of same transaction,
occurrence or series of transactions/occurrences (no
uniform test for this), and
1. Can use jointly (joint owner), severally (same
accident) or in the alternative (one but not both
is entitled to recover)
ii. if any question of law or fact common to all defendants
will arise in the action.
b. Joining defendants (by P) permitted if
i. right to relief is asserted jointly, severally or in the
alternative, OR in the same transaction/occurrence
(no uniform test for this), and
ii. if any question of law or fact common to all defendants
will arise in the action.
c. Series of transactions defined
i. Mosley v GM pg 806 10 Ps sued GM as a single
complaint asserting they were victims of race and/or
gender discrimination- some worked for GM and some
werent hired and some didnt get promotions and
benefits (seems diverse) Court said all claims arose out
of general policy of discrimination and could join as
logically related and therefore same
transaction/occurrence.
1. D wanted to break up suits since less likely all Ps
would sue individually (costly) and its more
persuasive for a jury if there are many people
complaining of discrimination
2. Appellate court on reviewing trial courts
interlocutory order, looked to Rules under 13(a) for
guidance as to what is same transaction/occurrence
3. Said there must be a single common question of
law or fact between each, not that all questions of
law and fact must be common.
4. Ruled District Court abused discretion in severing
claims
d. Rule 13(h) can join parties on counter or cross claim subject
to same rules
e. Rule 20(b) gives trial Court discretion to sever, though based
on joinder
i. If claims are severed, Ps must re-file separate complaints
f. Rule 42(b) gives judge authority to join or sever (discretionary)
based on impleading
i. Initial severance not subject to appeal (not a final
judgment) must wait until severed matter is adjudicated
g. Rule 21 allows opposing party opportunity to request
severance
h. Note: 20(a) is merely a procedural rule and still require
assessing SMJ over the claims
7. 3 Variables and how they work together in PLEADINGS:

74

a. TRR
i.
ii.
iii.
iv.

Transaction or occurance relatedness

Compulsory counterclaim
Requirement in several rules of procedure
No TRR requirement for counter claim (Def Counter claims
Plaintiff)
v. TRR requirement in cross claims (ex: D1 D2)
b. DERIVITIVENESS
i. Main legal doctines that allow TPD to be Liable to D
1. Indemnity clauses
2. Right to contribution
a. Where there is a contribution doctrine, the
defendant could sue another person in a tort
case for help to pay for the claim
c. RULE 18(a) KICKER
i. Must satisfy the Derivativeness requirement in order to
assert any other claim, the rest of the claims though dont
have the derivativeness requirements. This is just about
pleading. Other requirements such as jurisdiction must sill
be satisfied.
8. Rule 14(a) Third party claims (impleader)
a. Liberal pleading requirements can result in P losing control over
case, adding to complexity, absent judicial discretion to sever
b. Allows defendant to enjoin a third party defendant (the TPD) if
the TPD is or may be liable to the defendant for all or part of
the plaintiffs claim.- do so through a 3 rd party complaint at the
same time answer is filed
i. Rule 14(a)(1) to it language - claim can only be
derivative, not substitutionary. Can only be used if
TPD is liable to TPP for TPP liability to P. D cannot implead
by arguing it is not liable to P at all and rather TPD is.
see hypo on pg 815 n3.
1. However, a joined TPD can argue it is not liable to P
at all and TPP is solely liable.
2. TPD can claim against P or TPP (with jurisdictional
limits) and assert defenses see 14(a)(2) Rule
13 applies to counter-claims
a. Defense by TPD is not limited to what D
would have asserted (so D loses some
control over suit-could take discovery in a
direction D doesnt want to go)
b. If TPD asserts a claim against P, theres a
relatedness requirement (which doesnt exist
for normal counter claims by Ds)
i. Except for a Rule 18(a) additional
claim
ii. Also exception if P files a claim against
TPD (see below)

75

ii.

iii.

iv.

v.
vi.

vii.

viii.
ix.
x.

76

3. P can also assert claims directly against TPD (with

jurisdictional limits)
4. TPD can also implead another TPD (and assume
role of TPP) (with jurisdictional limits)
P can assert a claim directly against TPD per Rule 14(a)
(3), subject to the relatedness requirement (except for
additional claims under Rule 18(a))
1. Ps pleading obligation via 14(a)(3) is higher
(relatedness) than if P had initiated the suit directly
against the TPD as a 2nd D
2. TPD is treated as an ordinary D & is allowed to
assert permissive counter claim (no relatedness
requirement for TPD)
Most commonly used in tort concepts of
contribution and indemnity
1. 3rd party liability can arise through joint and
vicarious liability as well as contractual liability
Even if youre strongest theory is its him, not me,
but you have a reasonable contribution or
indemnification argument, which will pass muster
under Rule 11, you can implead
Once TPP impleads a TPD using the derivative claim
theory, TPP can then add other claims against TPD that
arent derivative, under Rule 18(a)
TPP might implead TPD because, even if other party was
more responsible, by impleading other party may make it
more likely Court will find TPP wasnt responsible, or if TPP
was found liable, while he may be able to file suit
separately, he may choose to implead to avoid issue
preclusion TPP (since TPD wasnt in suit, they wont be
precluded).
1. TPP does so through a third party complaint
(against TPD)
Rule 14 doesnt provide guidance whether D has an
indemnification or contribution right must look to
substantive law for this determination
1. Price v CTB pg 812 Court looked to underlying
substantive state law to determine if party could be
implead and in this case state law didnt allow for
contribution so TPP had to argue there was an
implied indemnification obligation.
Claim may be brought for indemnity (liable for all) or
contribution (liable for part) if impleaded or through a
separate suit
Original defendant is termed a third party plaintiff (TPP)
w/r/t the impleader
This is NOT a cross-claim: If it starts with c than it is a
claim between existing parties to the original suit while I
deals with new parties like the TPD (P did not sue TPD in
original suit)

c. Affirmative Court permission needed to implead if 3rd party

complaint filed more than 14 days after Ds answer Rule 14(a)
(1)
d. Costs of impleading (to D) increases litigation costs, now there
are two people arguing against D (both P and TPD)
e. Benefits of impleading (to D) reduces potential judgment against
them and increase cost and complexity of litigation to P.
i. Conversely, P and TPD both have interests in pinning
blame on TPP.
f. Rule 14(a)(5) TPDs can implead additional parties
2. Rule 18 TPD, once he has a related cross or counter claim, can then
add as many additional unrelated claims as he likes.
a. Wherever there is a transaction related requirement for
pleading, additional claims can be asserted that arent related
(can tag on)
3. Jurisdiction on impleading
a. 28 USC 1367(a) broadly provides for supplemental jurisdiction
(so related), but 1367(b) claws back supplemental jurisdiction
for claims by plaintiff against a joined party (such as under Rule
14(a)(3)) in a diversity claim (requiring its own basis for
jurisdiction).
i. Claw back doesnt apply to federal question cases
b. In a diversity claim, a diverse D can implead a TPD who is
not diverse to the P (based on broad supplemental
jurisdiction afforded in 1367(a) so related), but P
cannot bring a claim directly against non-diverse TPD
under 14(a)(3) unless they have their own basis for
jurisdiction and 1367(a) wont provide similarly broad
supplement jurisdiction due to 1367(b)s claw-back for
plaintiffs.
i. P cannot piggy back on TPPs supplemental
jurisdiction against TPD. It needs a separate basis
for jurisdiction (other than broad jurisdiction per
last sentence in 1367(a)).
c. Preceded 28 USC 1367 - Kroger v Omaha Public Power pg 820
& Owen Equipm v Kroger pg 823
i. Krogers husband killed when he was electrocuted while
on job. Employer liability limited due to workers comp.
Sues power company and equipment owner in federal
court based on diversity. Power company impleads
equipment owner but also wins on SJ vs Kroger. Kroger
can still assert claim against equipment owner (TPD)
under Rule 14(a)(3) while TPP is still in suit. But, once
power company dropped out of case, the claim between P
and TPD is now the sole claim for consideration so there
must be complete diversity for SMJ, which there wasnt
1. Didnt want to allow for a work-around where P
sues a diverse D, knowing D will implead another
non-diverse D, and then original D drops out.

77

2. Court acknowledged there would have been

supplemental jurisd in TPPs claim vs TPD even
though the initial SMJ was based on diversity and
TPD was not diverse.
a. This is OK under Constitution because the
citizenship clause in constitution doesnt
specify that it must be complete (only the
statute was interpreted to require complete
diversity by Strawbridge)
b. Court said it was OK for TPD to be impleaded
even though he wasnt diverse because
TPPs claim against TPPP is derivative to Ps
claim against D
c. Court said its not OK for P to assert a claim
against TPD without its own jurisdictional
basis because theres no claim to then use as
a basis for jurisdiction.
3. 28 USC 1367(b) essentially codified the result
to say that in federal court with a diversity
claim, P must have its own basis for
jurisdiction against TPD for it to assert a
claim against a TPD pursuant to Rule 14(a)(3)
a. 1367 didnt quite codify Owen it treats all
claims between P and TPD as independent,
when in fact, they may not necessarily be.
d. Special jurisdictional rule for claims brought under Rule
18(a) - All of the above only applies to initial (anchor) claims.
Rule 18(a) will allow for additional claims plead by each party
once there is an initial claim. This is a pleading rule, though, still
must do 1367 analysis for jurisdiction, but its based on
language in 1367(a) if claims are so related to original
claim (per language in 1367(a)), they will have supplemental
jurisdiction. Otherwise, they would not.
e. While PJ is also required for all Ds, Rule 4(k)(1)(B) liberalizes
rule a bit, stating that service creates jurisdiction on a party
joined under Rule 14 if served in US and within 100 miles of
Court that issued summons, even if across state lines.
4. How to argue against impleading:
a. Was derivative liability requirement met?
b. Is there a transaction requirement and if so, has it been met?
c. Was 14 day rule met?
d. If not, appeal to courts discretion to not allow motion (both
under Rule 14(a)(4) and Rule 42(b)).
e. Argue jurisdiction hasnt been met.
5. Rule 14(b): allows plaintiff to implead its own TPD if counter or cross
claim is brought against P
a. Time limit per Rule 14 after 14 days, need Court permission to
do this
b. Still have to assess jurisdiction over those claims

78

c. Benefits Courts have discretion to deny amendment to

complaint, so this is another way to do so, if needed (but must
be done in 14 days)
d. Jurisdiction - In an original diversity claim, if P is cross claimed
by D and becomes a TPP and sues a TPD, this is permitted under
pleading rules, but per 1367(b), most courts say hes a
plaintiff under 1367(b) and therefore, needs TPD to be
diverse (cant use broad supplemental per 1367(a)).
i. The minority of jurisd say hes no longer the plaintiff, so
dont need an independent ground for diversity.
6. Rule 19 Compulsory Joinder - Persons required to be joined if
feasible (pleading rule- still must satisfy jurisdiction)
a. Another way P can lose control over suit
b. Normally used as a defense 12(b)(7) request for dismissal for
failure to join relevant party (in the alternative, defense could
attempt to implead other party)
c. Mechanical determination:
i. Must the party be joined?
1. Temple v Synthes pg 829 joint tortfeasor not a
required party judicial efficiency doesnt matter
autonomy of P should be respected
a. This is OK because theres no doctrine
of non-mutual claim preclusion (just
issue)
ii. Downside of not joining - Expensive, possibility of issue
preclusion for addl defendants, defendant will blame
unnamed parties
iii. Rule 19(a) who is a required party
iv. Rule 19(b) can suit go forward in absence of required
party
v. Three tests to determine if they should be joined
(when theres joint ownership of property or shared
contractual rights at issue)
1. Absence prejudices complete relief - Rule
19(a)(1)(A) Without the absentee, can the court
accord complete relief among those who are
already joined? If the answer is no, then absentee is
necessary.
a. This reflects the interest in efficiency. Often,
a absentee who meets this will be sued after
the present action by P or D.
2. Absence prejudices missing person - Rule
19(a)(1)(B)(i) person claims an interest &
disposing of the matter without including the
person impairs that persons ability to protect the
interest
3. Absence prejudices parties Rule 19(a)(1)(B)
(ii) person claims and interest & disposing of the
matter without including the person leaves a

79

current party subject to a substantial risk of

incurring multiple obligations because of the
interest
vi. May the required party be joined? If absentee should
be joined is the joinder of the absentee feasible
based on PJ and SMJ (not feasible if it would destroy
diversity) and venue
vii. If feasible Join absentee to the case
viii. If not feasible but you have a party otherwise
required to be joined
1. Rule 19(b): Dismiss, unless you can proceed only
in equity and good conscience. Factors:
a. 19(b)(1) extent to which judgment
rendered in persons absence may prejudice
absent person or existing parties
i. Helzbergs Diamond Shops v Shopping
Ctr pg 833 P was a tenant in mall
and sued to enforce LLs promise not
to rent to competitor. Competitor was
a required party, but there was no PJ.
Could still move forward without them
because suit didnt impact
competitors rights.
1. Court assumed that there was a
violation of Helzbergs lease and
theres no chance of
inconsistent results (and
therefore no prejudice) Rosen
said this may not be true
dont treat this case as
black letter law application
of 19(b) is argument-reliant
b. 19(b)(2) Extent to which prejudice could
be lessened (see list in rule)
c. 19(b)(3) whether judgment rendered in
partys absence would be adequate
d. 19(b)(4) Most important factor - Would
P have an adequate remedy otherwise?
ix. Rule 19(a)(2) Courts dont have discretion must join
required party
1. Some courts will order a P to join a party instead,
and if they dont, dismiss the action (as in Synthes)
7. Rule 24 - Intervention permit an uninvited person to join
a. Another way P can lose control of a suit
b. Jurisdictional analysis still applies SMJ & PJ
i. PJ will happen automatically, though, through
consent
ii. For SMJ is there an independent basis based on arising
under or diversity? If not, look to 28 USC 1367 claw

80

back provision of 1367(b) applies here as well for claims

asserted by intervening non-diverse Ps.
c. Rule 24(a) intervention as a right
i. If federal statute provides unconditional right, or
ii. Claims an interest in property or transaction subject
of the action and the action would impede the party
from protecting interest unless parties in suit
adequately represent interveners interest
1. But see NRDC (below) for 10th Circuits very strict
rule on when there is adequate representation its
as if adequacy of representation doesnt apply in
10th Circuit
iii. Request must be timely (cant wait until litigation is on the
brink of conclusion)
1. Only discretionary issue for court is whether motion
to intervene was timely (early in the suit) no strict
rule
iv. Its not clear if theres a Rule 24(a) right to intervene,
and court doesnt have SMJ over would-be intervener,
whether Court should dismiss (no factors articulated like
for Rule 19(b)). Its more typical for a dismissal due to
lack of SMJ under Rule 24(a) and Rule 19(b)
1. Courts will circumvent the issue by reading Rule
24(a) narrowly making it discretionary under
Rule 24(b)
v. NRDC v US Nuclear Regulatory Commission pg 840 US
issued license to operate a uranium mill to company X.
NRDC sued to challenge lease w/out EIS. Company Y had
also requested a license so sought to intervene. Court
held Ys interest in a similar license (not that of X) was
enough to intervene. Also, X wouldnt adequately
represent Ys interests because they may argue for a
prospective ruling (harming Y but not X).
1. Standard applied by Court you must be
completely certain another partys interest
wont diverge from Ps
a. Rosen says not all Courts have adopted this
Courts (10th Circuit) very high bar for when
interests are represented by current party
2. Even though Y wouldnt have been impacted
by RJ if they hadnt intervened, they still
would have impacted by precedential effect
of initial ruling.
d. Rule 24(b) permissive intervention (judges discretion
may allow for an interest based solely on stare decisis, but if so,
likely must be a property interest such as in NRDC)
i. If federal statute provides conditional right, or
ii. Has a claim or defense that shares with the main action a
common question of fact or law

81

e. Rule 24(b)(2) by a govt agency (in judges discretion) If a

party to the suits claim is based on
i. Any statute or executive order administered by the
agency, or
ii. Any regulation, order, requirement or agreement issued or
made under the statute or executive order
f. Judge must consider whether delay due to intervention will
unduly prejudice partys to suit
g. But, interest in favorable precedent is not sufficient grounds for
intervention.
h. Martin v Wilks pg 846 confusing facts, see case summary for
4/24/14 party who stood on the sideline for original consent
decree (was not impleaded and didnt intervene) but was
impacted, was permitted to collaterally challenge consent
decree
i. Not a stare decisis issue for 2nd party because
consent decree doesnt generate law same with
judgments relying on findings of fact only
ii. Since not a party in consent decree matter, not precluded
under RJ, even though they could have intervened
iii. No requirement to voluntarily intervene, even if
they have a right to do so.
iv. If consent decree party wanted decree to be
binding to all, would need to join all relevant
parties
1. this can be a big burden a (b)(2) class action
resolves this
v. In response to judgment, federal statute was adopted
holding that a person with notice of a proposed judgment
and a reasonable opportunity to intervene, or a person
whose interests were adequately represented, is now
prohibited from collaterally challenging a consent decree
in an employment discrimination case. No application to
other areas.
1. Martin rules apply everywhere except with
Martin facts
a. It is inconsistent with Rules of Civil
Procedure, which normally apply to all
contexts
8. Rule 22, 28 USC 1335, 1397 & 2361 Interpleader
a. Allows party who knows he may be liable, but not to whom, to
avoid potentially inconsistent judgments to bring all potential
plaintiffs together
b. Instead of using derivative liability under Rule 14, additional
party can be plead-in based on Rule 22 under either of the
following:
i. Two interpleader situations
1. (classic) D has property, says its not my property
but multiple other parties say its theirs, so court
tell me who to give it to D is not a claimant

82

c.
d.

e.

f.
g.

h.

i.

2. (non-classic) D has property, I think I own it, but

maybe other people do not originally recognized
to be a form of interpleader now it is D is a
claimant
ii. Purpose: D wants to establish issue preclusion
against other parties
Rule 22 allows for satellite litigation (re ownership of asset or
claim) can be plead into case
Terminology
i. Stake thing being claimed by multiple parties
ii. Stakeholder person in possession of the stake
iii. Claimants parties seeking to obtain the property or
performance of the obligation
Whether P is a claimant depends on nature of claim its
possible thats Ps claim in the property is separate and different
than the interplead claimants. If so, P will not be considered a
claimant for purposes of statutory diversity rule (below)
Either a P or D (who has property being claimed by another) can
try and interplead other parties
Two types of interpleader
i. Rule interpleader (Rule 22), Statutory interpleader (28
USC 1335) Rule 22 is a pleading Rule so fall back to
normal jurisdictional rules. 28 USC 1335 is a
jurisdictional rule and is more favorable than normal
jurisdictional rules, if you can meet them.
USE STATUTORY:
i. Service of process provision is lenient (nationwide service
pursuant to 2361
ii. The venue requirement are easier to satisfy
iii. The amount in controversy is less. $500 or more)
iv. Any diversity amount interpleaders satisfies (1335)
USE RULE
i. If the stakeholder is a resident of one state and all of the
claimants reside in another state, 1335 would not work,
even though complete diversity is attainable
ii. Amount of Controversy is 75k
iii. Requires complete diversity

Issue
SMJ Diversity

Amount
PJ

83

Statutory
Minimal diversity reqd,
determined as between
at least 2 adverse
claimants
Ex P v D 2 or more
interplead states
different than each
other
$500
Nationwide service of
process comports with

Rule
Complete diversity
reqd, determined
between stakeholders
and claimants
Ex PvD interpleaders
come from states
different than P
$75,000+
Ordinary rules, contacts
with claimants reqd,

Venue
Injunctions (typically to
freeze assets or require
their delivery to a
claimant)

due process based on in

rem jurisdiction
Residence of one or
more claimants
Specifically provided for
interpleader cases in 28
USC 2361

service under Rule 4

Ordinary venue rules
under 28 USC 1391
No specific basis; courts
have used 28 USC 2361
(where necessary in aid
of jurisd)

j. This is another example of statutory diversity being

different than Constitutional diversity requirements
i. Federal courts can exercise jurisdiction with bare
diversity (per Constitution)
k. Claims must be inconsistent for interpleader resulting in multiple
liability for rules to kick in (cant simply be an issue of too small
pool of money where all parties have a valid claim)
i. They must be logically inconsistent
1. It must satisfy this, it must satisfy the adverseness
requirement which is different than derivativeness
requirement
2. Other or previous judgments against the person
that didnt rise from the same transaction or
occurance would not be allowed under impleader.
Although 18a kicker might allow it to be joined but
not interpleaded
l. Paragon Molding Ltd v Safeco Insurance pg 854 case didnt
start out as interpleader case. Insurance company agreed it had
payment to make based on Ps fire, but other parties also
claimed interest in asset (including owner of property), so Court
ordered Insurance co to deposit money with court and then exit
suit since it wasnt claiming it didnt owe the money. P then
became the stakeholder. Courts job was to assess each
persons claim to the extent not doing so would lead to
inconsistent results.
i. Court pointed out just because asset available was
limited, this wasnt a basis for interpleader status,
although court could apportion the limited amount
between the interpleaders
ii. Arguments that could be made:
1. Look at each claimant
m. HYPO 4/23/15
i. Without joining Oscar, why?
1. There would be no diversity
2. Bank could try to make the argument that Oscar
was a necessary party under rule 19
Class Actions Rule 23 One or more parties can sue or be sued as
representative parties of a class this is a pleading rule. Not a jurisdictional
rule. Can be for Ps and Ds.

84

1. Must have a class representative and class must be certified

(via pleading reqs)
2. 3 things to be attentive to:
a. 23(b) 1,2,3 = 3 types of class actions
b. They all share: They all have to satisfy 23(a) pre-requisites
c. If you want to bring a class action, you have to first bring a
complaint that says you will sue in class action and under 23(c)
it must be certified by the court.
3. Disadvantage lawyer is not accountable to a single client
4. Requires judicial approval to proceed and to settle
5. Due process issues members of a class can lose property rights even
though they didnt participate in proceeding
a. Normally you need notice and opportunity to be heard
before you can be deprived of property (including a litigation
right)
b. Lack of adequate representation violates due process Hansberry v Lee pg 862- pre Rule 23 case - racially restrictive
ownership covenant on south side of Chicago. In an earlier case,
seller sold to a black person and another person in neighborhood
filed a class action suit against buyer and seller. Court found for
class. Hansberry was similar suit based on a subsequent sale.
Court held buyer and seller not bound by previous ruling under
CE since their interests werent represented in previous ruling
even though they were white prop owners at the time.
i. Court based holding, in part, on divergent interests
between seller on 2nd occasion and existing owners in the
neighborhood during 1st adjudication. Interests of
representatives and class members must be closely
aligned. If they are, they may be bound by RJ by
prior class adjudication.
ii. Class was certified for Ps rather than Ds. If in original
suit, if D had been certified as a class, D in 2 nd suit likely
would have been bound by prior judgment because there
were similar interests.
iii. Hansberry says if a party whos in a suit individually has
an opponent who claims this party is precluded in this
suit, based on prior class action which they were a
member, you can challenge previous inclusion as a
member in previous case as a collateral challenge
in current case
1. Argue that their interests were not properly
represented. CAN USE THIS AFTER JUDGMENT TOO
iv. Interestingly, the original adjudication wasnt set up as a
class action so Court took over-broad approach to this
case. They could have decided it on narrower grounds.
v. Permitted to make a collateral challenge if there was a
first lawsuit
1. The only ground to challenge is inadequate
representation

85

a. I was not represented adequately by the

members of the class action
vi. Non-party can be bound by the results of lawsuit 1 in
lawsuit 2
1. If the partys interest was adequately represented
by lawsuit 1, then res judicata would apply
c. Whats rationale for allowing without direct participation
no different than legislation which binds parties without direct
representation
6. Personal Jurisdiction rules are modified due process clause need
not afford same level of protection
a. Phillips Petroleum v Shutts pg 868 royalty payment to gas
lease owners who were owed interest KS state court can
adjudicate class action without affirmative consent of each
member, or presence or minimum contact in KS for each class
member who received notice and did not opt out (as
opposed to consenting by opting in Mullane doesnt
require actual notice see pg 8) because:
i. Notice requirements:
1. Must receive a notice and opportunity to object
2. Pg 871
ii. Lack of a travel burden to member
iii. Guarantee of adequate representation of members
interest
iv. Rule 23 provides member notice and oppty to opt out
v. Since counter claim is unlikely, member isnt at risk of a
money judgment
vi. Applies only to money judgments not equitable relief
b. Phillips also had a choice of law issue as well (apply KS law to
claims not associated with KS)
7. Subject Matter jurisdiction Rule 1332(d)(2) Part of Class
Action Fairness Act (CAFA) diversity exists if all members claims
exceeds $5 million and any member of P class is diverse from member
of D class (minimum diversity) with two exceptions: subject matter
carve-outs and caveats which apply to all subject matters.
a. 1st exception: actions which are solely securities claims,
internal affairs of businesses, number of Ps is less than 100 &
actions where primary defendants are states.
i. Must use pre-CAFA case law (which is complex) for claw
back items
b. 2nd exception:
i. 1332(d)(2) - mandatory federal jurisdiction where
1/3 or fewer of members and D are diverse
ii. 1332(d)(4)(A) & (B) - mandatory no federal
jurisidiction 2/3 or more of Ps come from one state
and primary defendant is in the state
iii. Rule 1332(d)(3) discretionary jurisdiction- between
1/3 and 2/3
8. CAFAs Mass Action 100 or more Ps and each Ps damages > $75k
& theres common questions of law and fact can be removed to

86

federal Court per 28 USC 1332(11) no 23(b)(3) commonality

pleading requirement under (need not predominate)
i. SMJ requirement (above) either under CAFA or pre-CAFA
case law must be satisfied
ii. This has no application to Ps pleading, though,
since its a removal provision just a protective
device for Ds piggybacks on states class action rules
so 23(a) commonality requirement is not relevant
iii. Used for mass torts (airplane crash)
9. See 28 USC 1453 for general class action removal statute
dont need unanimity amongst Ds to remove to federal court (still
need to satisfy SMJ above)
10.
Certification of class is required to move forward under
Rule 23
a. Absent certification, judgment only binds named parties
b. 2 step process
i. Is case appropriate for class action? See Rule 23(a) for
prerequisites (which must be proven more than
just a pleading standard):
1. Numerosity - Is class so numerous that joining
parties individually is impractical?
a. At least in the 10s (not a hard and fast rule)
2. Commonality - Common questions of law and
fact?
a. Need not arise from same transaction
b. Per Wal Mart (below) must suffer the
same injury
i. What matters is not common
questions but the ability to generate a
common answer
ii. Court has to look at substantive law
and evaluate facts to satisfy the
pleading requirement of Rule 23 for
commonality.
1. If its based on a general policy
as opposed to a specific, written
policy or test need to prove
that general policy exists with
sufficient facts (similar to Iqbal
evidentiary requirement) small
group of evidence using
statistics for larger group is
insufficient
iii. This apparently substantial burden
may shift more class actions into state
courts
3. Typicality - Are claims/defenses of class
representatives typical of the members of the
class?

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a. Ex. If class rep has same issue as members

(so commonality is met), but amount of
claim is much smaller, wouldnt meet
typicality
4. Adequacy of representation - Will representative
parties adequately represent members?
a. See Hansberry
ii. If appropriate, which category under Rule 23(b)? Each
has its own procedural requirements.
1. (b)(1) Large number of required parties (Rule
19) where its impractical to join severally (eg
common asset) narrow application
2. (b)(2) Opposing party acted on grounds that
apply generally to the class (eg. civil rights claims)
where injunctive or declaratory relief is sought
money damages can only be incidental to
injunctive relief (cant be independent of
injunction such as individualized money damages)
a. Use of this can resolve the problem under
Martin (pg71) of not binding all parties to
judgment
3. (b)(3) the damages class action (majority of
actions taken) must meet the following prerequisites:
a. Prove that common questions of law or fact
predominate over individual questions
i. Ex. choice of law issues if you have
member from 50 states (Shutts above)
questions may vary by each states
law if state law governs claim
b. Class action is superior method, taking into
account
i. Interests of individuals in controlling
their own litigation
ii. Do other members already have
action pending?
iii. Difficulties in managing the class
action same choice of law issue as
above for common questions
iii. Per 23(c)(2)- Court may direct notice for (b)(1) &
(b)(2) but for (b)(3) the Court must direct notice
(consistent with Mullane)
1. Similarly, Shutts does not require notice on (b)(1) &
(b)(2) but does for (b)(3)
2. (b)(3) class members must be given an opt
out option See Rule 23(c)(2)(B) for details of
required notice
iv. A party who wants to challenge their inclusion in a class
after the fact can challenge both the legitimacy of their

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inclusion in the class as well as whether they were

properly noticed (if a (b)(3) class)
v. Immediate appeal of certification decision is permissible
under Rule 23(f) because without class certification,
litigation likely stops and if class is certified, D is
potentially subject to monstrous damages so huge
settlement pressure
1. Its under appellate courts discretion to take
2. 23(f) is an exception to final judgment rule
vi. Wal Mart v Dukes pg 883 sex discrimination class action
filed under Rule 23(b)(2) sought injunctive relief and
punitive damages but no compensatory damages in order
to attempt to qualify under (b)(2). Court ruled not
appropriate for a class action since 1) P couldnt provide
sufficient evidence of type of harm suffered to meet the
commonality requirement (same type of harm suffered
by all). Statistical methods were insufficient. (in a 5-4
majority) 2) by requesting individualized money damages
(back pay and punitive), the damages were not incidental
to injunctive relief and therefore didnt qualify as a (b)(2)
class (in a 9-0 majority).
1. Resulting rules for a (b)(2) claim, money
damages can only be incidental to injunctive
relief & commonality requirement of 23(a)(2)
must be proven
2. Dissent said majority set commonality bar too high
in 23(a) because 23(b)(3) already has a strict
commonality requirement wouldnt make sense to
have a strict requirement in 23(a)
vii. Class action can be certified under multiple classes
- common example: certify under another class if you
seek money damages which are incompatible with 23
b(2)
11.Unlike most settlements, court approval is required for all
class action settlements (regardless of class category) Rule
23(e) inherent conflict of interest between Ps lawyers and class
member requires Court oversight
a. 23(e)(2) Court must hold a hearing & conclude settlement
is fair, reasonable & adequate
b. 23(e)(1) All class members get notice of proposed settlement
(need not be direct could be a newspaper ad) based on
Mullane
c. 23(e)(4) If a (b)(3) class, court may require opt out option to
members
d. 23(e)(5) Any member may object and be withdrawn only
with court approval
e. If its a coupon settlement, per 28 USC 1712, attys fees
based on amount actually redeemed.
f. 28 USC 1715 requires notice of settlement to be sent to
regulating agency

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g. Attorneys fees are often taken from a common Ps award fund

or granted as a separate award from the D.
12.If theres been a full judgment, Rule 23(h) requires notice,
hearings, findings & and opportunity to object to fees.
a. Suits brought under (b)(2) will normally be based on fee
shifting statutes (since theres no other monetary basis
to pay atty)
i. Fluid class recovery applying damages on a pay it
forward basis since its too hard to find original class
members.
13.Settlement-only class actions District Court is presented
simultaneously with complaint, answer, class certification request and
a settlement agreement
a. Global settlements occur when legislators refuse to deal with
the issue
b. Amchem v Windsor pg 899 Asbestos exposure class action
sought to consolidate all pending asbestos suits they
negotiated a settlement for all pending claims. Parties then
wanted to bring another suit for future claims by persons
exposed to asbestos Court found class certification wasnt
proper between these two groups, so settlement couldnt be
proper. Based decision on 1) common questions did not
predominate, as required by (b)(3), and 2) inadequate
representation, as required by 23(a) those with current disease
had differing interest (maximize current payout) to those who
hadnt yet gotten sick (minimize current payout).
i. Rule 23(a) & (b) requirements still apply to certify a
settlement only class, except
1. Rule 23(b)(3)(D) is not required (manageable
litigation) for class certification for purposes
of a settlement-only class action
ii. Exposure-only plaintiffs do not share commonality
with symptomatic plaintiffs
c. Some commentators believe settlement-only class actions
arent constitutional because federal courts only have
jurisdiction over cases and controversies a settlement class
action has only people in agreement so there is no case or
controversy.
Right to appeal
1. 28 USC 1291 - Final judgment rule normally bars appeal until final judgment has been
issued. Exceptions are as follows:
a. 28 USC 1292(a) grant or dissolve injunction, interlocutory orders,
receiverships
b. 28 USC 1292(b) controlling question of law for which there is substantial
ground for difference of opinion (discretionary)
c. Rule 23(f) class action certifications
i. Allows Discretionary appellate appeal regarding certification
d. Rule 24(a) Intervener
e. Rule 54(b) final judgment issued on a single claim in a larger case

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f.

Collateral order doctrine applies when the court 1) conclusively determines,

2) an important issue, 3) separate from the merits and 4) decision would be
unreviewable if loser must wait for final judgment.

Contiuim of rights alterations claim/issue preclusion, stare decisis, preclusion from class
actions, legislation

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