Civ Pro Outline

I. Personal Jurisdiction
a. Pennoyer v. Neff p.61
i. For a state to exercise jurisdiction over individuals or property, there must
be valid service of process on the individual (in personam actions)
or attachment of the property (in rem actions).
ii. Personal jurisdiction could only be established through:
1. In-state service of process (it is still viable here), or
2. Attachment of property before the action commenced (establishes in
rem jurisdiction), or
3. Consent, or
4. Status (permits courts to exercise jurisdiction over one of its citizens to
determine his or her status).
II. Specific Jurisdiction
a. Minimum Contacts: International Shoe v. Washington p.77
i. Shoe had its principal place of business in Missouri and maintained a sales
force in several states including Washington. The state of Washington
sought to establish jurisdiction over Shoe to collect unemployment tax.
ii. H: A court may exercise jurisdiction over a Δ who has sufficient
minimum contacts with the forum state, such that it does not offend
traditional notions of fair play and substantial justice.
iii. Actions in rem still fall under the attachment prong of Pennoyer.
b. Contacts by Mail: McGee v. International Life Ins. Co. p.84
i. Jurisdiction was upheld against a Δ based on a single contact with the
forum state, contacts by mail.
1. Δ & decedent had contacts through mail: Δ solicited the policy &
decedent paid his premiums through the mail.
2. The suit was based on a contract which had substantial connection with
the state & the state has a manifest interest in protecting its citizens.
c. Purposeful Availment Limitation: Hanson v. Denkla p. 85
i. There must be some act by which the Δ purposefully avails itself of
the privilege of conducting activities within the forum state.
ii. Π’s unilateral move to Florida should not subject Δ to jurisdiction in Florida.
Unilateral movement test
1. Δ had no office in FL.
2. Δ did not transact business there.
d. Shaffer v. Heitner p.87
i. Π attached Δ’s stock in Greyhound to establish quasi-in rem jurisdiction.
ii. H: All jurisdiction is subject to the minimum contacts standard of
Shoe.
1. Although Δ’s stock may be considered a contact with the forum state, it
is insufficient to establish Δ’s contact with Delaware.
2. In some situations minimum contacts are still uncertain.
 iii. A Δ’s property within a forum state may bear on the existence of
jurisdiction by providing contacts with the forum state; however it is no
longer the sole determination for establishing quasi-in rem jurisdiction.
e. World Wide Volkswagen v. Woodson p.98
i. Π purchased car in NY. While traveling in OK, π was in accident and
severely injured. Π’s sued in OK.
ii. H: Jurisdiction over WWVW failed the two part test of jurisdiction:
1. Minimum Contacts &
2. Fairness: Even if you have minimum contacts is it fair to assert
jurisdiction over the Δ?
iii. It is not reasonable that WWVW would reasonably foresee being sued in
OK on this claim.
iv. Fairness Factors:
1. Burden on the Δ to defend in the forum state.
2. Forum state’s interest in adjudicating the dispute
3. π’s interest in convenient and effective relief in the forum state
a. If π could not go anywhere else, Δ’s interest is given less weight
4. Interstate judicial system’s interest in obtaining the most efficient
resolution of controversies.
5. Shared interest of the several states in substantive justice & social
policy.
f. Asahi Metal v. Superior Court p. 107
i. Π sued Cheng Sing and Honda for injuries resulting from a motorcycle
crash.
1. Cheng Sing filed a cross complaint against Asahi who manufactured the
valve stems that were used in the tires.
2. Asahi sold valve stems to Cheng Sing  Cheng Sing sold 20% of its
products in California.  Thus, a very limited amount of Asahi’s goods
entered the stream of commerce in California.
ii. H: There is a 5-4 split; maj → No jurisdiction. Asahi did not purposefully
direct its activities at California (J. O’Connor more than awareness test).
Brennan and min. say simply knowing (that product is in stream of
commerce) is enough.
1. Minimum contacts must come about by an action of the Δ
purposefully directed toward the forum state.
a. Forseeability is not equivalent to purposeful direction.
2. Jurisdiction over Asahi fails the minimum contacts requirement and the
fairness factors.
g. Burger King v. Rudzewicz p.114 (K case)
i. Michigan Δ entered a 20 yr franchise agreement with Burger King, a
Florida corporation to open a franchise in Michigan.
1. Δ’s only time in FL was to attend training prior to opening the
restaurant.
a. Δ executed contracts, corresponded w/ offices in FL, & negotiated
his contract with the FL office.
 ii. H: Δ’s conduct and connection with the forum state are such that
he should reasonably anticipate being haled into court there.
iii. Δ was put on fair warning by purposefully directing his activities to
residents/businesses of the forum state and the litigation arises out of
those activities.
1. Δ reached out to the FL business & knew that the π was primarily a FL
business.
iv. Δ purposefully availed himself of the benefits of FL law by entering a
contract which expressly provided that FL law would govern.
v. When dealing w/ k’s; think about contacts for pre-k events, during k
events, and after k events
h. Pavlovich v. Superior Court p. 120
i. Pavlovich operated an internet site that provided information on how to
defeat CSS technology.
ii. H: No jurisdiction over Δ b/c although he knew the effects of his action
would reach into California, he did not purposefully direct his website to
entities within California.
iii. Effects Test- There must be express aiming. There must be more
than doing something that causes an effect somewhere else. (only
used in intentional torts cases)
iv. Zippo Test: The difference b/w active and passive internet websites
1. closer to active website the more contacts count
2. closer to passive website becomes insufficient to justify contacts
III. General Jurisdiction
a. When established it may be used as a basis to bring any claim against a Δ.
b. For corporations, this will be the state of incorporation or the principal place
of business.
c. For individuals, this will be the state of their domicile.
d. Continuous and systemic contacts: There are so many contacts with the
forum state that it doesn’t matter what the claim is, the person or corporation
will be subject to jurisdiction.
i. Temporary presence of corporate headquarters in the forum state.
ii. State of Incorporation
iii. Principal place of business.
e. Coastal Video v. Staywell p. 126
i. H: Specific jurisdiction could not be asserted over Δ but π was directed to
seek discovery to determine whether Δ was subject to general jurisdiction.
f. Burnham v. Superior Court p. 132
i. Jurisdiction may still be asserted through in-state service of process.
ii. It was unnecessary to consider minimum contacts when Burnham was in
California.
iii. In state service of process may be considered contacts w/ the forum state;
Brennan said this was a giant contact (general jurisdiction there, but what
about specific jurisdiction?) → fairness factors come into play here.
IV. Consent as a Substitute for Power
a. Carnival Cruise Lines v. Shute p. 141
 i. A forum selection clause found on the back of cruise tickets was
interpreted as valid consent to jurisdiction.
ii. For the clause to be established, it had to be deemed reasonable.  It
was.
V. Summons; Rule 4 p. 14
a. Starts the game, and gets notice out.
i. Rule 4 (a),(b),&(c): formalities/technicalities
ii. Rule 4(d) Waiver of Summons
1. Allows Δ to waive formal personal service of process.
2. Δ has incentive to waive service b/c he is given additional time to
respond to the complaint.
a. If Δ agrees to waive service they are given 60 days from time of
notice to answer if they are within the U.S. & 90 days if they are
outside the U.S., rather than 30 days if they do not.
3. If a Δ refuses to waive service, he will be responsible for the costs
incurred by serving him in the future.
4. The request must be made in writing and sent through first class mail
with a copy of the complaint and shall identify the court in which it has
been filed.
5. The Δ who waives service does not waive objections to venue or
jurisdiction.
a. Δ does give up any objections to the sufficiency of the summons or
the method by which it was served.
i. Rules 12(b)(4) & (5).
iii. Rule 4(e)-(j): Types of Δs: person within U.S., person outside the U.S.,
Infants & Incompetent persons, Corporations, & the U.S. Government.
iv. Rule 4(e)(2): A copy of the summons and complaint may be left at the
Δ’s “usual place of abode” with a “person of suitable age and discretion.”
v. Rule 4(m): Service of the summons and complaint must be made within
120 days of filing with the court.
VI. Self Imposed Restraints
a. Long Arm Statutes
i. Legislation that permits a court to exercise jurisdiction over out of state
Δs.
ii. Long arm statutes may narrow the scope of jurisdiction, but may not
expand it beyond what is allowed under the Constitution.
b. Venue
i. Venue is a statutory limitation on where a suit may be brought. It may
prevent a π from bringing a suit in a particular court even though the court
may have jurisdiction.
ii. Venue rules are designed to prevent a π from bringing a suit where it
would be burdensome for the Δ to appear and defend.
iii. Federal venue statutes limit the federal districts in which suit may be
brought.
iv. State venue statutes usually limit the counties in which suit may be
brought.
 v. Whereas jurisdiction involves the power to hear a case, venue involves
the proper place to bring an action.
vi. If a case can have venue in two states, it is π’s choice.
vii. Π can sue wherever a substantial amount of the events giving rise to the
claim occurred.
1. § 1391
a. Diverstiy cases: if a case has fed jur. Based solely on diversity, it
may be brought:
i. in dist. crt. where any Δ resides – IF all Δ’s reside in same state,
or
ii. in dist. crt. where substantial events or prpty is located, or
iii. if no other dist. can hear the case, the it may be heard wherever
ALL Δ’s are subject to PJ at commencement of action.
b. Cases not based on diversity  suits involving FQ (§1331) may be
brought:
i. In dist. crt. where any Δ resides IF all Δ’s reside in same state
ii. In dist. crt. where substantial event/property located
iii. If no other dist. available, then the suit may be brought wherever
any on Δ may be found.
c. Corporations as Δs
i. Wherever subject to PJ at commencement of action
ii. If none available, look to the dist. w/ the most sign. contact
iii. If there is not one particular dist. in the state in which co. has
enough contacts for PJ, but the state as whole “qualifies,” entire
state is considered to have PJ over Δ corp.
c. Declining Jurisdiction: Transfer & Forum Non Conveniens
i. Forum Non Conveniens
1. Even when venue and jurisdiction are proper, courts may decline to
exercise jurisdiction on the ground that the location the π has selected
for the case is inconvenient or unfair.
2. When the inconvenience problem can be solved by transferring the
case to another district court, the court may not dismiss; but if the
proper forum is in another country, the court can dismiss.
a. A court cannot dismiss unless an alternative forum is available
3. Piper Aircraft v. Reyno p.170
a. Fatal plane crash in Scotland. Plane manufactured in PA & propeller
manufactured in OH. Owned by a Scottish air service.
b. Suit was filed by estate’s administrator in CA.
c. Forum Non Conveniens granted b/c the case was also proper in a
foreign jurisdiction.
d. Granting the motion must be done for the convenience of the parties
and witnesses & in the interest of justice. If this case were to remain
in CA, it would be wholly unfair to the foreign Δs & to witnesses in
PA, OH, & Scotland. Also must show that other forum is adequate.
 e. Venue, subject matter jurisdiction, & personal jurisdiction are all
proper in CA, however there is a significantly better place in which to
resolve this dispute.
ii. Transfer
1. § 1404 allows the transfer for convenience of parties or witnesses or
interest of justice to another district court where the suit may have
been brought .
VII. Subject Matter Jurisdiction
a. Three statutes give jurisdiction to federal courts (for our purposes): § 1331,
1332, & 1367
b. Federal Question Jurisdiction
i. USC § 1331: The district court shall have original jurisdiction of all
civil actions arising under the Constitution, law, or treatises of the
United States.
ii. Well Pleaded Complaint Rule
1. A federal issue must be well pled in the complaint for there to be
federal subject matter jurisdiction under §1331.
a. Π must prove this part to win!
b. The possibility of a federal issue being pled as a defense is
insufficient to establish federal question jurisdiction.
2. Louisville & Nashville Railroad Co. v. Mottley p. 182
a. Mottleys were injured in a railroad accident. As part of their
settlement, they received lifetime passes on the railway. Congress
subsequently outlawed lifetime passes. The Mottleys sued in federal
court seeking specific performance.
b. H: Anticipating a defense based on a federal claim is insufficient to
establish federal jurisdiction.
i. The complaint must be “well pleaded” to include a claim for
relief under the Constitution or laws of the U.S.
iii. You cannot consent to subject matter jurisdiction.
c. Diversity Jurisdiction
i. USC §1332: Federal courts may hear cases where no Δ is a citizen of
the same state as any π, & the amount in controversy is more
than $75,000.
ii. Diversity: There must be complete diversity between the parties.
iii. Domicile is where a pty is currently residing and where they plan to reside
for an indefinite period of time.
a. Hawkins v. Masters Farms p. 6- π was unable to establish diversity
jurisdiction b/c he was unable to establish the second prong of
domicile: intent to stay.
i. Π sought to establish diversity jurisdiction in MO, where he
originally resided, where title to his vehicle was registered, &
where his estate was opened upon death.
ii. H: No diversity b/c he was residing in KS with his
girlfriend and had moved his belongings to KS with an
intent to stay there indefinitely.
 b. Redner v. Sanders p. 193
i. π sought to establish diversity jurisdiction based on his current
residence in France, although he was a U.S. citizen.
ii. H: Foreign residency is insufficient to establish diversity
jurisdiction.
1. Diversity jurisdiction can only be established through
citizenship/domicile.
iv. Amount in controversy: plaintiffs can add together all claims against one
Δ, even if they are totally unrelated.
v. Corporations are found to be citizens of the state in which they are
incorporated or where it has its principal place of business. USC §1332 (c)
(1).
d. Supplemental Jurisdiction
i. Goal is to promote judicial economy and consistency of decision.
ii. USC §1367(a)- includes jurisdiction over any claims related to the
claims in an action which form the same case or controversy.
1. Supplemental jurisdiction shall include claims that involve joinder or
intervention of additional parties.
iii. USC §1367(b)- The district courts shall not have supplemental jurisdiction
over cases which are based solely on §1332 diversity jurisdiction by π’s
against persons made parties under Rules 14,19,20, or 24.
iv. USC §1367(c)- District courts may decline jurisdiction over claims if:
1. The claim raises a novel issue of state law
2. The claim is “substantially” predominate over the original [Federal]
claim.
3. The district court has dismissed all claims over which it has original
jurisdiction
4. In exceptional circumstances, there are other compelling reasons for
declining jurisdiction
v. Test for establishing supplemental jurisdiction
1. Common nucleus of operative fact
a. The claims must be derived from a common nucleus of
material fact.
2. Judicial Economy
a. Whether interests of judicial economy, convenience and
fairness support exercise of supplemental jurisdiction. Also,
if there is complex issue of state law.
vi. Jin v. Ministrey of State Security p. 207
1. Π’s are members of Falum Gong (citizens of diff. state, residents and
non-citizens) suing Chinese gov’t under RICO and for defamation.
2. Two pronged test above formed in this case.
3. Defamation claim shares same core of facts w/ RICO charge (make
tapes). Would more convenient, application of diff. state laws would be
difficult but not complex, i.e. uncertainties in the law itself. Because
the claims shared a common nucleus of fact, in granting supplemental
jurisdiction would help the judicial economy.mm
 e. Removal (§ 1441); allows for Δ to have some choice in forum
i. (a) Removal from state court by Δ; whenever Fed Crt. have original
jurisdiction, a case may be removed from the St. Crt. by the Δ.
ii. (b) Removable subject matters; Any Fed. Question may be removed w/o
regard to residence of prtys AND diversity cases may be removed as long
as ANY Δ is not a citizen of the present form.
iii. An in-state Δ may not remove a case that is based on diversity of
citizenship.
iv. Also, consult the applicable statutes for the actual detailed rules (look it
up p. 338)
VIII. The Erie Problem
a. Purpose: clarifies which law applies to federal diversity cases.
b. Swift v. Tyson
i. U.S. 1841: interpreted § 1652 Rules of Decision Act to say that Fed.
Crt. only had to follow state statutes. Decisions by state supreme Crt.
were not considered “laws” and Fed. Crt. were free to create their own
common law.
ii. Cons:
1. non-citizens get benefit of forum shopping laws
2. violates equal protection
3. Difficult for citizens to predict which stnd. Of law they will apply
4. Federalism → crts. Create common law where Congress could not pass
a statute. This violates the allocation of power in the Constitution.
5. The law is considered an entity to be “found” of itself.
c. Erie RR v. Tompkins (overruled Swift) p. 224
i. Π (PA) hit by open door of Δ train while walking along RR tracks. Sue Δ
(NY) in NY Fed. Crts. NY has a lower standard of negligence than PA,
where accident occurred. PA crt would favor the RR.
ii. Except in matters governed by the Fed. Constituion or by Acts of
Congress, law to be applied in any case is law of State. No Fed. gen. CL.
Congress has no power to declare substantive rules of CL applicable in a
State whether they are local in nature of “gen.”
iii. Holding: lower crt. erred in not applying PA state law.
iv. Goals: 1) decrease forum shopping AND 2) prevent inequitable
administration of justice and abuse of equal protection and due process.
v. Eire guess: Fed. Crts. Must make decision based on state legislation or
by HIGHEST state crt.
1. if highest state crt. has not seen similar case, then Fed. guess what it
thinkgs the state crt. would have made.
d. What Law Applies? (Handout)
i. If a matter is governed by the FRCP apply the federal law, this is the
ultimate holding of the Hanna case.
ii. If the matter is “substantive” you should apply the substantive law of the
state in which the fed. court sits. If you could see leaning about the
subject in a first year course, such as property, the matter is substantive.
 iii. There may be rare cases in which something falls b/w substance and
procedure. This is rare, don’t worry about it.
IX. Process of Litigation
a. Pleading
i. Rule 11: p.31 Signing Pleadings (good faith rule)
1. (a) requires attorney signature; (b) requires reasonable representation
2. (c) are sanctions if (a) or (b) are violated; (d) is what Rule 11 doesn’t
apply to:
a. Disclosure
b. Discovery requests
c. Responses
d. Objections
e. Motions subject to provisions in Rules 26-37
ii. Rule 8: p. 27 General Rules of Pleadings
1. Requires short plain statement of jurisdiction, claim showing pleader is
entitled to relief and demand for relief
iii. Rule 9 (b) & (g): p. 29 Special Pleadings
1. 9(b): circumstances including fraud and mistake
a. Must give the circumstances, specificity
2. Stradford v. Zurich Insurance Co. p. 365
a. Π wants to be paid for damages which occurred by water, sues Δ
(insurer) for $. Δ makes counterclaim of fraud, Π files for dismissal
under Rule 9(b).
i. 9(b) – failure to state a claim of fraud w/ sufficient particularity
b. If there is actually a case of fraud, the court will allow pty (Δ) to re-
state claim when it is not stated w/ particularity 15(a) “when justice
so requires”.
c. 9(b) is not used to dodge claims of fraud, used to give litigant fair
warning of fraud claim and factual ground which it is based upon.
3. 9(g): special damages: those that do not normally come from an
event: Specificity
iv. Motions/Answer by the Δ;
1. See Rule 12 (Motions) p. 34
a. 12(b) are pre-answer motions
i. Lack of SMJ
ii. Lack of PJ
iii. Improper Venue
iv. Insuficiency of process
v. Insufficiency of service of process
vi. Failure to state a valid claim upon which relief can be
granted (implied as Summary Judgment)
vii. Failure to join a pty under Rule 19
b. 12(e): motion for more definite statement
c. 12(f): Motion to Strike
d. 12(g) & (h):
i. Defenses must be put in first Rule 12 response or else waived
 ii. Defenses under 12(b)(6) & (7) can be raised for first time
anytime through trial
iii. 12(b)(1) can be raised any time – you cannot waive lack of SMJ &
court can bring it up on its own
2. 8(b) Defenses; Form of Denials
a. admit
b. deny – if you fail to deny an allegation; admission
c. DKI (don’t know)
d. Zielinski v. Philadelphia Piers, p. 382 Rule 8(b)
i. Π was hit by a forklift believed to be operated by an agent of Δ; Δ
answered complaint and made a gen. denial of allegations.
ii. Δ later claimed forklift operator wasn’t their agent, wasn’t
included in gen. denial.
iii. H: gen. denial isn’t valid if any allegations being denied have
been admitted by parties as true. Jury instructed that agent is Δ.
3. Affirmative Defenses, Rule 8(c) p. 28
a. Layman v. Southwestern Bell Telephone, p. 387 Rule 8(c)
i. Π sued telephone co. (Δ) for trespass for laying telephone wires
on her property w/o permission. Δ answered w/ gen. denial; at
trial Δ raised right of entry by easement & Π objected but was
overruled.
ii. Is right of entry by easement an affirmative defense Rule 8(c) in
an action for trespass?
iii. H: an easement is an aff. Defense to trespass & must be set
forth in the answer or evidence of the easement will not be
allowed at trial.
iv. Affirmative defense: admit the facts but Δ contends he is not
liable b/c of additional element.
v. Rule 15: Amending Pleadings p.41
1. 15(a)
a. (1)Π has right to amend once before Δ serves Answer (not motions!)
b. Δ has a right to amend once w/in 20 days of serving Answer
c. If there’s no right to amend, the court has discretion to grant leave
to amend & will allow amend. “when justice so requires”
i. Generally only denied when to do so will cause actual prejudice
to the other pty (has statute run?)
2. 15(b)
a. Provides that the court may allow the pleadings to be amended
(during trial) and “shall do so freely” if it appears that the amend.
Will aid in the presentation of the case and will not prejudice the
objecting pty in the presentation of her action or defense.
3. 15(c): amending after the S/L has run
a. Relation Back – you treat the amended pleading as though it was
filed when the original was filed
i. 15(c)(1) – permitted by the law providing for the S/L in case
(very rare)
 ii. 15(c)(2) – they are related to the original claims in pleadings
(same conduct, transaction, occurance)
iii. 15(c)(3) – There were misidentified parties in original claim.
Amendments will relate back to date of pleading only upon
reasonable notice IF:
1. (a) – pty has received notice of the action that the pty will
not be prejudiced in maintaining a defense on the merits
2. (b) – the pty knew or should have known the action would
have been taken against her, but for the fact that their
was a mistake as to the actual identity of the pty.
b. Moore v. Baker p. 400
i. Π had surgery performed by Δ, not allowed to amend her original
complaint against doctor (informal consent). Wanted to amend
and add negligence claim.
ii. Acts claimed in an amended complaint must arise out of the
same conduct, transaction, or occurrence as the claims in the
original complaint, crt. applied 15(c).
c. Bonerb v. Richard J Caron Foundation p. 402
i. Π was patient and Δ’s rehab center. During mandatory exercise,
Π fell and first claim was negligence → later tried to amend and
add malpractice for forcing them to play basketball.
ii. Crt looked at operational facts set forth in original claim to
determine if amended claim arise out of same conduct,
transaction, or occurrence; if this is so then amendment is
allowed.
1. Same nucleus of facts then amend. allowed
4. 15(d) – supplemental pleadings
5. Beek v. Aquaslide ‘N’ Dive Corp. p. 394
a. Π was injured by a faulty waterslide; Δ answered complaint
admitting that it was the manufacturer of the slide; a year later
(after S/L had run for filing against proper Δ) Δ moved to amend
answer to deny they manufactured the slide.
b. H: pty may amend their pleading only when justice so requires only
by leave of the court.
i. Must have good faith reason of mistake
ii. May not prejudice the adverse pty
6. Rule 55 – default rule
7. Rule 41 – voluntary dismissal of actions
b. Discovery
i. Rule 26: General Provisions Governing Discovery (p. 69)
1. 26(a)(1) Parties must Provide: w/o request to name people &
documents w/ discoverable information that you may use for your
claims or defenses + damages and interest.
2. (26(a)(1)(e) lists exemptions)
3. 26(a)(2) Experts: Identify any testifying experts
4. 26(a)(3) everything (evidence, witness, etc.) you’ll rely on in
trial
5. 26(a)(5) Methods of Discovery
a. Depositions: oral or written (Rule 27, 28, 30, 31, 32)
b. Interrogations: (Rule 33)
c. Production of Documents: (Rule 34)
d. Permission to Enter: upon land or other property for inspection or
other purposes
e. Examinations: Physical or Mental (Rule 35)
f. Requests for admission: (Rule 36)
6. 26(b) Discovery Scope & Limits
7. 26(b)(1) – parties may obtain discovery regarding anything that is
relevant and not privileged to claim or defense of party.
a. Steffan v. Cheney p. 411
i. Π forced to resign from Navy b/c admitted he was gay. Π
refused to answer deposition ? if he had engaged in homosexual
activity while in Navy.
ii. It is ruled that the question is irrelevant to the issue and is
privileged. He was discharged b/c he said he was gay, therefore
his acts were irrelevant.
8. 26(b)(2) – limitations see p. 72 the crt may alter the limits in these
rules on the number of depositions & interrogatories, or the length of
depositions under Rule 30 (Make stipulations to changes under
Rule 29)
9. 26(b)(3) – work-product (trial preparation material) consists of
documents and tangible things that are protected from disclosure b/c
they were prepared in anticipation of litigation or for trial by or for
another pty or by or for that other pty’s representative.
i. Unless there is substantial need of materials, or adverse pty
cannot obtain a substantial equivalent or w/o undue
hardship
b. Hickman v. Taylor p. 438
i. Tugboat sank, 5 crew members died. Tug hired attorney to do
discovery. Π asked for exact copies of all such statements if in
writing, and if oral detail the exact provisions of any such oral
statements or reports.
ii. Request fell outside arena of discovery, Π wanted material
simply to prepare himself to examine witnesses and make sure
he didn’t overlook anything.
iii. Π attempted to secure written statements and mental
impressions “the mind of the attorney” which is not what Rule
26(b) covers. 26(b)(3) prevents this.
10. 26(b)(4) trial prep. experts: see p. 72-73
a. Can only depose any person who has been identified as an expert
b. Through interrogatories or by deposition; discover facts or opinions
of other pty’s experts who are NOT expected to be used at trial,
 ONLY IF, the pty shows exceptional circumstances, making it
impractical to obtain the expert info themselves.
11. 26(c) Protective Order court may enter when justice so requires to
protect a pty from:
a. Annoyance
b. Embarrassment
c. Oppression
d. Undue burden or expense
e. Stalnaker v. Kmart p.427
i. Π filing action against Δ for sexual harassment. Δ object to
discovery b/c voluntary romantic conduct should be protected.
ii. justice requires to protect parties from discussing private,
embarrassing, and/or oppressing matters.
iii. Attempt to protect people that the adverse party is trying to
depose
ii. Rule 37 Failure to Make or Cooperate in Discovery
1. 37(a)(4): court shall order pty and/or attorney to pay expenses,
including attorney’s fees, unless court makes a finding that there was
no good faith consultation or nondisclosure was justified, or
circumstances make award unjust. Skip this step if discovery is ignored
2. 37(b): sanctions may be imposed upon a pty who fails to comply w/ a
crts order on a motion to compel.
3. 37(c): Failure to Disclose (under Rule 26(a) or 26(e)(1))
a. if evidence was not disclosed and did not come up in discovery, then
cannot be used in court.
iii. Rule 34: Production of Documents & Entry for Inspection
1. a pty may request another pty to:
a. produce any doc., info, etc. in its custody (w/in scope 26(b))
b. permit entry for inspection & surveying (w/in scope 26(b))
2. relevance comes into play, of all doc., you can only look at those which
speak on your topic
a. only applies to parties, Rule 45 is similar but w/ 3rd parties
iv. Rule 45: Subpoena
1. Can issue a fed. crt. subpoena anywhere in the U.S.
2. person not a pty may be compelled to produce doc. and things or to
submit an inspection
v. Rule 33: Interrogatories to parties
1. may be served to any pty once service or process is made properly (not
non-parties)
2. limited to 25/pty (default; Rule 29 allows stipulation to be made)
3. For very targeted useful info; very specific info that you can get a gef.
Answer to use for later research.
vi. Rule 30: Depositions
1. 30(a) a pty may take 10 dep. (1/day, 7hr/dep.) w/o leave of the court
unless:
a. Pty will take more than 10 dep.
 b. Person to be examined already deposed
c. A pty seeks to take dep. Before 26(d) leaving the country; will be
unavailable later
d. Person to be deposed is in prison
2. 30(b) must give reasonable notice to every other pty in action
a. 30(b)(6) – allows to send list of topics to corporation and they can
send whomever they feel can answer topics best (can be more than
one person)
3. 30(d) – must be concise, non suggestive, and non argumentative
a. Reasons to instruct witness not to answer
i. Protect privilege
ii. To enforce a court order
iii. To immediately stop dep. And go to get protective order
b. Only objections you must make (if don’t object, can’t in trial)
i. Lack of foundation
ii. Ambiguous questions
iii. Irrelevant questions
vii. Rule 35: Physical/Mental Exams of Person
1. court may grant order when good cause is shown or that it is
material matter in controversy.
viii. Rule 36: Request for Admission p. 101
c. Joinder
i. Claim Joinder; Rule 18(a) → Π can join any and all claims against the
same opposing party even if they are not transactionally related (never
compulsory but claim preclusion may apply depending on state def. of
claim preclusion)
1. Subject Matter Jurisdiction §1332
a. SJ only applies if 1st claim was a fed. question & the 2nd arises from
same T/O
b. Diversity will not be affected (if 1st claim was in diversity)
c. Claimant may aggregate all claims in order to satisfy amount in
controversy
2. Δ’s Counterclaim: Rule 13(a) & (b)
a. Compulsory: Rule 13(a) – arising out of the same transaction or
occurrence as the Π’s claim; it must be asserted in the pending case
or else it is waived; must be asserted in your Answer
i. Exception: if the crt lacks jurisdiction over a 3rd pty who is
necessary to the action then the counterclaim is not waived.
ii. Supplemental SMJ always extended to compulsory counterclaims
iii. Plant v. Blazer Fin. Services p. 735
1. Π sued for failure to make disclosures under Truth-in-
Lending Act. Δ counter-claim for failure to pay bank note.
2. H: Action on underlying debt in default is compulsory
counterclaim (13(a));
 3. logical relation test Cumpulsory counterclaim always
has SMJ if it arises out of same T/O (counterclaim –
state/Π claim FQ)
b. Permissive: Rule 13(b) – does not arise from same transaction or
occurrence as the Π’s claim so you may assert it but you don’t have
to; you can still sue separately
i. No Supp. Jurisdiction
ii. The crt separate suits under Rule 42(b) for efficiency
3. Cross-claim: Rule 13(g) – asserted against a co-party in an existing
action
a. Must arise from the same T/O as Π’s claim or a counrtclaim;
b. Must ask for actual relief (otherwise it’s a defense)
c. Never compulsory
d. Always covered by supp. Jurisdiction (when original claim is an FQ
and cross-claim is not.)
ii. Joinder of Parties
1. Permissive Joinder: Rule 20
2. 20(a) gives right of multiple Πs to join together and the Π’s right to
make several co-Δs to the claim
a. must arise out of same T/O AND have same question of law/fact in
common to all parties
3. 20(b) Separate Trials – crt may order sep. trials or other such order
to prevent
a. a pty from being embarrassed, or
b. delay, or
c. prejudice, or
d. a pty from incurring undue expense from the inclusion of 3d pty, so
long as no claims exist b/w the ptys
4. Jurisdiction in Permissive Joinder of Parties
a. Personal Jurisdiction: Δ who are joined must individually meet
requirements of PJ
i. Service: each personally served
ii. Contacts: each Δ must have in personam min. contacts
iii. Long Arm Limits: each Δ must be amenable to suit (fed. crt. in
diversity follows long arm state in which it sits so long arm must
be able to reach Δ)
b. Subject Matter Jurisdiction
i. If 1st action was FQ:
1. original juris. will also be extended over original claim.
2. Supp. Juris. may apply
ii. If 1st action was in Diversity:
1. no supp. Juris. Under §1367(b)
2. maintain complete diversity
3. satisfy amount in controversy w/ regard to each pty
5. Compulsory Joinder; Rule 19 – parties that must be joined
 a. Rule 19(a) – joinder ptys must be subject to personal juris. and
can’t destroy SMJ (if this is so, then implead)
i. A Third Pty must be joined if:
1. complete relief can’t be accorded among the present ptys
w/o joining the 3rd pty, or
2. the 3d pty claims a related interest in action, & its
absence from the suit may:
a. Impair or Impede its ability to protect that interest
b. Leave any of the present ptys subject to double
liability or inconsistent verdicts
ii. Temple v. Synthes Corp. p. 762
1. Π sued Δ for man. faulty back implant, question arose as
to joinder of dr. & hospt.
2. R: Under Rule 19(a), they weren’t necessary they were
permissive; and under 19(b) joint tortfeasors are never
indispensable ptys
b. Rule 19(b) – is pty indispensable?
1. Extent of prejudice to the absentee/present pty
2. Possibility of framing judgment to mitigate prejudice
3. Adequacy of remedy in pty’s absence
4. Will Π have remedy if dismissed? (another forum)
ii. Helzberg’s Diamonds v. Valley West Shopping Center p. 766
1. Π sued mall for breach of K when Δ contracted to not
have more than 2 jewelry stores, K’d w/ a 3d and suit was
filed.
2. R: a pty doesn’t become indispensable to an action to
determine rights under a K simply b/c that person’s rights
or obligations under a sep. K will be affected by the result
of the action.
6. Impleader; Rule 14 – Δ joining new Δ who may be liable to him
(derivative liability)
a. Rule 14(a) – a defending pty may join a 3rd pty Δ who is or may be
liable for all or part of the claim (same transaction or occurrence)
i. Ex.
1. indemnity in strict liability, vicarious, agreement,
warranty
2. joint tortfeasors contribution
3. subrogation (co-signer ex.)
ii. Δ may not claim that TPD is the only pty liable (its not me its
him) but may please in the alternative that neither he nor TPD is
liable
iii. Price v. CTB p. 748
1. Π price sues builder of chicken house, Latco, who in turn
impleaded ITW, the nail manufacturer, ITW moved to
dismiss.
 2. H: 3rd pty is properly impleaded under Rule 14(a) when
that party may be liable to the original Δ for the
judgment.
b. Rule 14(b) – Π against whom a counterclaim is filed can assert a
claim against 3rd pty Δ if it arises from the same transaction or
occurrence as the underlying case.
c. Impleader Jurisdiction
i. 100-mile radius: service may be made w/ 100 mile bulge
surrounding the courthouse even of outside state or long arm
(Rule 4(k))
ii. Supp. Juris.
1. TPD need not satisfy diversity or AIC requirements
(automatic supp. juris.)
iii. If venue is proper b/w original ptys it remains valid regardless of
resident of TPD
d. Claims by the TPD
i. Counterclaims against TPP
ii. Cross-claims against other TPD’s from same T/O
iii. Claim against original Π out of same T/O
iv. Counterclaim against original Π if original Π has made a claim
against TPD – careful of jurisdiction, no supp. over Π’s claim
against TPD
v. Impleader claims against person not previously part of suit if
these persons may be liable to TPD for all or part of TPP’s claims
against TPD.
vi. Jurisdiction:
1. supp. – all above claims are covered by supp. jurisdiction
2. Defenses – a TPD may raise any defenses against the
original Π that the original Δ could have raised
e. Claims by Original Π: against the TPD must satisfy independent
jurisdictional grounds (no supp.)
i. Owen Equip. v. Kroger p. 758
1. IAΠ v IAΔ for state claims, NEΔ makes Rule 14 3rd pty
claim against IAΔ (fine). Then, IAΠ files cross pty claim on
IAΔ.
2. H: Complete diversity requirement cannot be
circumvented by naming only the diverse pty & waiting
for a Δ to implead a non-diverse pty. (§1367 drafted as
Kroger Rule).
3. §1367: (a) SJ includes jurisdiction over any claims related
to the claims in an action which form the same case or
controversy
a. (b) when crts have SMJ based only on diversity,
complete diversity MUST be continued for all counter-
claims against 3d ptys
XV. Resolution w/o Trial (Pre Trial Adjudication)
a. Default; Rule 55 Court may enter a default judgment against a pty who has
failed to plead or otherwise defend under rule 55
i. Default is a judgment on the merits
ii. Can be set aside for good cause—Rule 55(c)
b. Voluntary Dismissal
i. Πs may dismiss if all the parties agree- Rule 41(a)
ii. Π may unilaterally dismiss at any time before the Δ has answered- Rule
41(a)(1)
iii. After Δ has answered voluntary dismissal is at discretion of the court—Rule
41(a)(2)
iv. Without prejudice the first time and the second time is with prejudice
c. Failure to Prosecute—Rule 41(b): Δs may move to dismiss a case on the
grounds that the π has failed to pursue a lawsuit.
i. Judges are given discretion in determining when a lawsuit has been
abandoned
ii. Some states have timetables for determining dismissal (Cal.)
d. Rule 12(b)(6)—Motion to Dismiss for failure to state a claim
i. Court looks only at the face of the Complaint, not evidence
ii. If the π proved everything in the Complaint, would she win a judgment?
(does the law recognize this claim?)
1. If no then leave to amend, usually
2. If still no then dismissed with prejudice
e. Summary Judgment; Rule 56
i. Rule 56(c) – summary judgment shall be rendered if:
1. there is no dispute on a material issue of fact
2. the moving pty entitled to judgment as a matter of law
3. Summary Judgment must be based on:
a. Pleadings, Depositions, Interrogatories, Admissions, Affidavits
ii. 56(d) Case not fully adjudicated on motion
1. if only part is adjudicated, the crt shall determine which facts remain at
issue for trial
2. Judge shall file an order est. the “adjudicated facts” and how they affect
the amount in controversy
iii. 56(e) Requirements of Affidavits
1. include personal knowledge of facts
2. shall show that the affiant is competent to testify
3. the crt may permit the affidavit to be supp. by depositions,
interrogatories, or other affidavits
4. Responding to a Motion for SJ
a. The adverse pty must set forth specific facts showing that there is a
genuine issue for trial
b. If the adverse pty can’t show that there is a genuine issue, SJ shall
be entered against her – if appropriate
iv. 56(f) when affidavits are unavailable
 1. pty opposing a motion for SJ can show in its affidavit that it can’t obtain
affidavits containing facts essential justify its opposition to SJ, then the
crt may:
a. refuse application for SJ
b. Order continuance
c. Make such order as is just
v. Celotex Corp v. Catrett p. 516
1. Π sued manufacturer of products she claimed were responsible for
husband’s death; motion for summary judgment was granted but
reversed on appeal on grounds that Δ failed to produce evidence
supporting lack of genuine issue of mat. fact.
a. What Celotex must do to win summary judgment
i. Affirmative Proof of non-exposure, or
ii. Lack of admissible evidence of exposure
1. Now the burden is shifted to the Π to show that they have
admissible evidence of material fact.
2. Supreme crt. told lower crt they applied wrong test; on remand crt
applied affirmative proof test, but still denied summary judgment.