Civil Procedure Outline Personal Jurisdiction

Step 1 - Long Arm Statutes

1) Gibbons v. Brown P tried to sue 2 years after D had been involved in lawsuit in forum a) A court may exercise jurisdiction over a non-resident defendant only when: i) the state/federal government has authorized it to do so; and ii) the authorization is constitutional as applied to the case in question. 2) State Legislature composes a list of the specific types of contacts that the D may have with the forum state. a) Doing Business b) Causing Injury 3) Federal LAS can go to the borders of the country Rule (4)(k) See notice. a) Any contact with the sovereign b) Generally subjects parties to jurisdiction within the boundaries of the state they are found in. 4) Unlimited Long Arm Statutes a) CA is one of the few states that gives their courts power over any persons or property which the state can constitutionally exercise jurisdiction over. 5) Limited (or Specific) Long Arm Statutes: a) Most states specify in detail the situations in which their courts can exercise jurisdiction. b) When it comes to tortious acts: Courts are split. i) Some courts say that the act occurred where the product was manufactured or the actual act took place. ii) Some courts say that the tort occurred where the harm occurred. iii) ARGUE BOTH ROB!

Step 2: Due Process Fairness Test Trad. Basis / Minimum Contacts

1) Traditional Bases: International Shoe v. State of WA a) Presence: Did the defendant receive the summons in the state while physically present. i) No Entrapment: Must be voluntary. D must have purposefully availed themselves of the state. (Rec d benefit from laws of the state, and foreseeable to be sued within the forum state) ie making money, owning property. ii) Burnham v. Superior Ct. Wife served husband with summons while in state. WARNING: NO MAJORITY OPINION 4-4 Split Scalia Presence alone gets you to fairness, no minimum contacts necessary. Minimum contacts is a substitute for Presence (Pennnoyer v. Neff). Brenan Presence in the state is purposeful availment of the benefits of the state (Shoe, Shaffer). JX is proper because of benefit/obligation trade off. Satisfy Brennan s 4 and you get Scalia s 4. Argue Brennan s position.

b) Domicile: Residence + Subjective intent to remain for the indefinite future i) This can also serve for diversity 1332 jurisdiction. c) Consent: The D consents to the action, waiver of personal jurisdiction (failing to raise in first responsive pleading after having received effective notice). B/C the goal is fairness, consent means that you agree to the fairness of the court s jurisdiction over you. i) Consent by Contract: D must be aware of what they are signing. (1) Clauses: Choice of Forum (a) Carnival Cruise Lines (i) A forum selection clause may be upheld if it appears to have reasonable justification and does not appear to discourage litigation. 1. Justifications: limiting fora of D that could be subject to PJ in multiple places / simplifies pre-trial procedure for P and D / Reduced costs of litigation are passed onto customers. (ii) Heighten scrutiny. No fraud or overarching to get consent. (2) Choice of Law (a) Carnival Cruise Lines (b) Burger King ii) Consent by Implication: Appearing in court and defending w/o raising the issue of PJ (1) Shaffer D made a special appearance to challenge P.J. iii) Consent by Waiver (1) Failure to raise an objection (a) 12(b)(2) (b) Special Appearance: Motion to Quash Service of Summons (CA). 2) The Test: Case-by-Case Basis: Minimum Contacts a) General Jurisdiction i) Can sue D on any claim if: (1) D is domiciled within the state (2) D has Substantial and Pervasive contacts (3) D has Systematic and Continuous contacts (a) Essential considerations to the exercise of fairness ii) Helicopertos Crash in Peru. 4 Amcns s killed, no LAS for SJX, went after GJX. (1) You must exceed the amount of contacts in this case to have a show at GJX. (2) Contacts: Contract negotiated in TX, D bough 80% of helicopters from TX (money IN not money out), D never authorized to do business in TX, never sold product in TX, never signed contract in TX, never solicited in TX. Contract was in Spanish, signed in Peru, and said that controversies w/b submitted to Peruvian courts. iii) Perkins Company business conducted from Ohio, Pres sued on dividends. (1) If you can meet this level of contacts you are golden. (2) Contacts: Conduct business on behalf of company, sustained substantial bank accounts, forum banks act as a transfer agent, salary checks and general duties discharged from within the forum.

b) Specific Jurisdiction Highly related, low frequency. i) General Questions: (1) Contacts highly related to the claim? (2) Who went to Whom? Did the D reach out? (McGee/Hanson/BK) (3) Is the D s conduct such that he should foresee being hauled into court there? c) Purposeful Availment? Hanson / McGee / WWVW / Burger King i) Foreseeable that he would be sued there? (1) Hanson Unilateral act by third party do not create foreseeability. (2) McGee Mailing policy and collecting premiums creates foreseeability. (3) WWVW Mobile nature of a finished product does not establish foreseeability. (4) BK Reached out to headquarters by attending training, entered into a long term and substantial contract with a business in the state. (a) Note: Additional considerations: Burdensome on D to travel there? One modest purchase would not have been enough. ii) Did the D avail himself to the laws and benefits of the state? (1) Hanson No benefits received from state where 3rd party moved. (2) McGee Took money out of the state for premiums. (3) WWVW Percentage of profit derived from a state maintaining roads thus making a car useful in that state is not enough. d) Real Stream of Commerce Theory (Ashai v. Superior court) i) Brennan - Reasonable, foreseeable, knowledge that the products would end up in the market they did. ii) O Connor Awareness Plus Substantial Connection Something More (1) The substantial connector between t the defendant and the forum state necessary to find min. contacts must come about by an action of the defendant purposefully directed toward the forum state. (a) Directed advertising (b) Designing a Product for the Market (c) Marketing through an Agent. e) Calder Effects Test (Pavolvich): If tortious conduct is directed at a party or entity or industry in the forum state, with knowledge of the act towards the party, this can equate to personal availment under the forum state s laws. f) In rem or Quasi in Rem: (absorbed by Shaffer): If the D owns property in the state then the state s power over the property gives them the power over the person up to the value of that property. g) QIR is used to satisfy a judgment when the lawsuit is not over the thing or property i) Now it is just another minimum contact. h) Shaffer v. Heitner QIR is BS, stock is not enough to confer JX over non-resident. i) All assertions of JX must meet minimum contacts analysis. (Consent/Presence?) i) Minimums and Limitations (McGee and Hanson) i) FOLLOW THE MONEY (1) Where was the money made? That will show you where the min contacts test s threshold is. (Injecting money in No; Taking money out Yes)

(2) Benefiting by selling products in a state would add to purposeful availment. Distinction between USE (not availment, save stream of commerce) and Sale. (3) Unilateral acts do NOT count as purposeful availment. 3) Other Considerations: Asahi v. Superior Court (Brennan v. O Connor) a) Reasonableness is an Addition Consideration Only actual rule of law from Asahi. Reasonableness includes: i) Purposeful Availment (1) Did the D take advantage of the laws of the state? (2) Did the D foresee being sued there? (3) They reach out and connect with the forum state? (a) Brennan mere awareness that the product will reach the forum state (b) O Connor something more is required (promotion, marketing) (i) Argue to O Connor, it will get you 8 justices. ii) Burden to the D (Burger King MN-D taken to FL) (1) Asahi is in Japan, Cheng Shin is in Taiwan, the burden of the physical distance and the submission to foreign legal system is substantial. iii) Interest of the Forum State (1) Once Cali resident had settled his case, the remaining parties had little to do with CA. Therefore CA s interest was slight. iv) The Plaintiff s Interest in obtaining relief (1) Cheng shin has not indicated that it is more convenient to litigate their indemnification in CA court. v) The Interstate Judicial System s interest in obtain the most efficient resolution of controversies (1) Neither party is a CA resident, so CA s interest is greatly diminished. vi) The shared interest of the several States in furthering substantive social policies. (1) Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field. 4) Defenses: KNOW THESE a) Challenging (Attacking) Personal Jurisdiciton i) Option #1: (1) Default (do nothing, don t show up) then collateral attack (very risky, must be very sure that you can win the judgment on P.J. because you forfeit the option to argue on the merits) (a) Collateral Attack: The no-show party issues a collateral attack stating that it was not fair (due process was not satisfied, no personal or subject matter jurisdiction). Therefore there is no power over me because the court did not have jurisdiction over me in the first place. Judgment is impotent because Full Faith/Credit clause only applies to valid judements. (b) An enforcement action would take place, notice must be given to allow D their day in court. (2) Full Faith and Credit Clause: (a) States uphold the rulings of other states on VALID judgments

(i) Only if the judgment was proper and fair under Article 4 of the Constitution. ii) Option #2 (1) Direct Attack: Rule 12. (a) Challenging personal jurisdiction ONLY file a 12(b)(2) motion on PJ. Must be raised in first responsive pleading (beware of removal petitions: some courts construe that to be FRP); You can only appeal P.J. if it is in the pre-answer or answer; otherwise it is waived. (i) 12(b)(2-5) Must be in first responsive pleading. If not the rights are waived. iii) Option #3 (1) Special Hearing: Only in personam (in state only). I am coming into fight the P.J. count only. You do not subject yourself to in personam jurisdiction. (2) Limited Appearance: Same only it pertains to In-rem suits. (3) General Appearance: IF YOU ARGUE ANY OF THE SUBSTANTIVE MERITS OF THE CASE, YOU HAVE CONSENTED TO JURISDICTION. ONLY ARGUE P.J.

Subject Matter Jurisdiction

1) Article III of the Constitution a) Arising Under: Broad Construction. i) Article 3 is broadly construed to allow claims into federal court which arise under any: US Treaty, the Constitution or Federal Statutes ii) Fed Question can arise in the P s complaint of the D s answer iii) Broad construction allows for hearing in State court which may then be appealed to SCOTUS. However, cannot start out in Federal Court. b) 28 U.S.C. 1331 Federal Question i) Arising Under: Narrower Construction (1) A claim arising under a U.S. Treaty, the Constitution or Federal Statutes, but must be on the face of the well pleaded complaint. (a) Rule: For a federal trial or appellate court to grant subject matter jurisdiction under federal question, the federal question must first arise in the well pleaded complaint (Mottley). (b) Look at the remedy. If P is to get relief, what will the remedy be based on? ii) Cannot be waived. Rule 12(b)(1) may be raised at any time, even on appeal. c) Exclusive Jurisdiction i) ???? 2) Diversity Jurisdiction 28 U.S.C. 1332 a) Generally: i) Diversity is based on the citizenship of the parties at the time the claim was filed. b) Article III i) Broad Scope: Allows diversity but does not include amount in controversy. c) 1332(a) (1-4) Complete Diversity i) Allow for citizens of different U.S. States; State A v. State B.

ii) Citizens of State v. Foreign State iii) Citizens of State A + Alien (51) v. Citizens of State B + Alien (51) iv) Alien + State A v. State B (1) Note: Must have complete diversity. d) Perm Res Alien Issue i) Seen to have to domiciles for diversity purposes. If the perm res alien were to sue a foreigner this would be ok. But if a perm res alien were to sue a citizen of their state, this would not work. ii) The Split (1) Courts have a split on 1332(a)(3). Some feel as if all Aliens are from the 51st state, and thus are not diverse, some feel that they don t matter because only true blue U.S. Citizens matter. (a) Policy: the aliens may not matter because we are not worried about the prejudice under the sovereign towards them. (b) Trend: The modern trend is to constrict diversity (Saadeh approach). iii) Citizen of the State: (1) Rule: For purposs of determining whether diversity JX exists, a person is a citizen of the state in which he or she is domiciled . For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one s intent to remain there. (Redner v. Sanders) (a) Domicile: Residence, plus the subjective intent to remain for the indefinite future. (Hawkings v. Masters Farms - ) (i) Ways to establish (Objective Evidence) 1. Driver s License, Registered to Vote, House, Bank Account, Job. iv) 1332(b) Amount in Question (1) Currently the amount in question is $75,000.01 to meet the requirements for diversity jurisdiction. (2) Must be exclusive of interests and costs. (3) Courts will only reject the amount if, from the face of the complaint, it is a legal certainty that the P could not recover that amount. (4) Determining that Amount: when the remedy is not pecuniary. (a) Injunctive relief (i) How much is the injunction worth to the P (ii) How much would it cost to get the D to stop his actions from the POV of P. (iii) What would the cost be to D. v) 1332(c) Domicile for Corporations (1) Corporations can have two domiciles: (a) Place of incorporation (b) Principle Place of Business Only one of these (i) Brain: HQ Decisions are made there (ii) Muscle: Where the actual work is completed (iii) Total Activities Test: Look at them combined and see which has the most activity or carries on the most important activity.

vi) 1332(c)(2) Citizenship for represented parties: (1) Decedents, incompetents and minors (2) Look to the citizenship of the represented party. (3) Insurer v. Insured? Look at the domicile of the person insured.

Supplemental Jurisdiction 28 U.S.C. 1367

1) General a) First step, look at the main claim (anchor), is it 1331 or 1332? b) The anchor is used to supply the lacking SMJX for additional claims. c) When trying to supplement jurisdiction for a joined claim, go down the rule like a funnel. d) Remember Supplemental, there must be more than ONE claim. 2) 1367(a) a) Expressly extends federal jurisdiction from the anchor claims within the original jurisdiction of the federal court to supplemental claims that are so related that they form part of the same case of controversy under article III of the Constittion i) Leaves the scope for the exercise of 1367 over transactionally unrelated but logically related claims in rare cases where that may be appropriate. b) Basic Process i) Is there an anchor for an the existing claim? Yes Proceed ii) Are there additional claims that are part of the same case or controversy as the main claim? Yes? Proceed to (b) for diversity and (c) for federal question cases. 3) 1367(b) Diversity Anchor a) For claims arising under 1332 in which the ORIGINAL P brings an additional claim, if the joinder claim destroys diversity, the claim cannot be added. 4) 1367(c) Federal Question Anchor a) Even if all other prongs are met, the court has in its discretion the power to not hear the supplemental claim when; i) the claim raises a novel or complex issue of State law ii) The sub claim dominates the others and there is no original jurisdiction over it (tail wagging the dog) iii) The district court has dismissed all other claims for which there as original jurisdiction.

1367(a) Does it arise out of the same case or controversy ? 1367 (b) Does the joinder destroy 1332? 1367 (c) Does the court want to hear the case?

5) 30 Day Grace: a) If there is a remaining State claim, which the Fed court does not want to hear, after the main claim based on 1331/1332 is dismissed. The P must re-file the claim in State court. b) IF the SOL has run with the state claim, the court grants the P a 30 day grace period to re-file. c) Policy: The reason for the SOL, is to prevent fraudulent claims, in this case the State claim was not fraud. It was brought into court under the 1331/1332, which was then dismissed. The P thought he was doing everything right, thus he should not be penalized for going through the correct steps in the system. 6) Aggregation of Claims to Meet the Amount in Controversy a) Single P against Single D may aggregate all claims (Even if unrelated) i) P1 (C1) D1 = 45,000 + ii) P1 (C2) D1 = 45, 000 = 90,000 good to go! b) Multiple parties on either side may not aggregate their separate and distinct claims: i) P1 (C1) D1 = 45,000 ii) P1 (C2) D2 = 45,000 = 2 claims STOP no good c) Multiple Ps joint claims, common and undivided interest, do not have to be split evenly. i) P1 (C1) D1 ii) P2 (C1) D1 All together = 76,000 Good to go! iii) P3 (C1) D1 d) Class Actions i) Each P must meet the diversity Amt. in Controversy Separately ii) Statutory amount? 5 million gets it into federal court? 7) Article III Dismissal of Main Claim a) Article 3 says that at the time of filing, if the claims are to be heard together, if the main claim gets dismissed the State claim can be remanded to State court or the Fed court can continue to hear it. i) Judicial economy! If the proceedings have been going on for a long time, then the case will most likely be heard. If the proceedings have just begun the case will most likely be remanded.

Removal 1441
1) Generally: a) Only D can remove b) Must remove to the federal court in the district that the state court sits c) Case must have been able to have been filed in Federal Court to begin with. 2) Reasons why D would want to remove: a) There could be local prejudice against out-of-state Ds, or if in-state maybe against his position (corporation, celebrity, etc ) b) There may be more favorable procedural rules in the Fed Ct. c) Fed court may be more familiar with that type of claim. d) Time it takes to get into court, Fed may be faster

e) Judges bias, or why a judge is in his seat (elected v. appointed) 3) Concurrent Jurisdiction a) The claim at the state level could have originally been heard in Federal Court. 4) Home Court Advantage 1441(b) Only Applies in Diversity Cases a) If the out of state P sues the D in his home state, remove is NOT allowed. For reason (b)(i) above there is no likely prejudice against the D. b) This is true even if there are multiple D s. Even if one is from forum state then no removal. c) Removal is proper where 1332 and D is from out of state OR there is 1331 SMJ. 5) Timing 1446 a) 1446(b) Removal must happen within 30 days of receipt of complaint by D. i) If the complaint is amended to where Removable is now available, D has 30 days from the date of the amended complaint to remove. b) 1446 (c) Allows separate and independent claims to be removed with 1331 and/or 1332 claims. i) Unconstitutional Not allowed under Art III ii) Unnecessary 1367 can probably be argued to get separate claim included. c) 1446 (d) - Diversity - The clock ticks from the day the complaint is filed under 1332. You cannot remove 1332 if it becomes available after the claim has been alive for 1 year. (1) Hypo: If 1332 is gained 5 days before the year mark, do you still get the 30 days grace? (a) Policy: The reason for the one year mark is to prevent more diversity claims in Fed court. Opponents of Diversity want to use it strictly to limit the number of actions based on 1332 in Fed Court. (b) Counter Argument: The D should be allowed the 30 Day grace period b/c diversity has been met within the time period and the 30 days is just an allotment to get the papers filed with the court, not an additional extension. (c) Caterpillar Case Became removable right before one year mark. Case erroneously removed. Court did not vacate judgment because the error was cured before adjudication. (i) Goes against the rule. Bumbled and stumbled into result. (d) Capron P improperly invoked diversity JD to get to federal court lost. P appealed, pointed out 12(b)(1) no diversity, and won. So no JX. (i) In this case, diversity was never satisfied. d) 1447 (c) Remand i) On the basis of any defect other than lack of subject matter jurisdiction. (1) Problems that would prevent removal but would not have destroyed federal jurisdiction for example, if one or more D s ii) e) 1448: If service of 1 or more D is not perfected or given, P can serve process according to Fed Rule.

Notice of Process : 2 Step process Constitutional Test - 5th and 14th Amendment 1) Mullane v. Hanover Bank Notice must be reasonably calculated, under the circumstances, to a) apprise the interested parties of the pendency of the action and b) afford them an opportunity to present their objections. c) It must be of a nature as to reasonably convey the required information and d) it must afford those interested parties a chance to make an appearance. i) If these conditions are met, constitutional requirements are satisfied. Statutory Test Rule 4 (or State equivalent) a) Contents b) Issuance c) Service 1) In General. A) A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. 2) By Whom. A) Any person who is at least 18 years old and not a party may serve a summons and complaint. 3) By a Marshal or Someone Specially Appointed. A) At the plaintiff s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 1915 or as a seaman under 28 U.S.C. 1916. d) Waiver 1) Request 2) Failure If a D located within the US, w/o good cause, does not sign and return a waiver requested by a P in the US, the court must impose on the D A) the expenses imposed in making the service B) The reasonable expenses, including attorney s fees, of any motion required to collect those services expenses (i) Good cause not to sign = incapacitation, or the argument that signing a waiver forfeits the right to contest sufficiency of process. (D can have a special hearing to challenge this) incapacitation, signing a waiver forfeits the right to contest sufficiency of process. 3) Time to Answer Waiver A) From date of sending: 30 days to someone in US / 60 days to someone outside US. 4) Results 5) PJ and Venue Not Waived Waiver s effect on the Timing Of Answer (1st responsive pleading): 6) 60 days for U.S. from the day waiver sent. 7) 90 days for defendant outside the U.S. Policy Reasons: Why do we have this? 8) Saves costs, easier 9) Discourages game-playing in avoiding service 10) Can be a part of getting personal jurisdiction 11) Why would the d sign?

A) Buy time. (30 -60 extra days for getting answer together) Waiver Challenges: Rule 4 and Rule 12(b)(4-5) 12) 12(b)(4) insufficiency of process A) Violation of Rule 4(a-b) the actual documents 13) 12(b)(5) insufficiency of service of process A) Violation of Rule 4(c)-(n) e) Service to Individual Within US 1) Unless federal law provides otherwise, an individual other than a minor, an incompetent person, or a person whose waiver has been filed may be served in a judicial district of the United States by: A) following state law (no ERIE analysis) for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or B) doing any of the following: i delivering a copy of the summons and of the complaint to the individual personally; ii leaving a copy of each at the individual s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or iii delivering a copy of each to an agent authorized by appointment or by law to receive service of process. C) All costs incurred by the plaintiff to serve process in this manner would be transferred to the defendant. If a 4 (d) Waiver has been sent first. f) Serving an Individual in a Foreign Country 1) Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served at a place not within any judicial district of the United States: A) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; B) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: i as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction; ii as the foreign authority directs in response to a letter rogatory or letter of request; or iii unless prohibited by the foreign country's law, by: (a) delivering a copy of the summons and of the complaint to the individual personally; or (b) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or (c) by other means not prohibited by international agreement, as the court orders. g) Serving Minor or Incompetent 1) A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. 2) A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3). h) Business, Corporations or Partnerships - Unless federal law provides otherwise or the defendant s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

1) in a judicial district of the United States: A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and if the agent is one authorized by statute and the statute so requires by also mailing a copy of each to the defendant; or 2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). i) Serving the US or it s Agencies j) Serving a Foreign State k) Territorial Limits 1) Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant: A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or C) when authorized by a federal statute. 2) For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: A) the defendant is not subject to jurisdiction in any state s courts of general jurisdiction; and B) exercising jurisdiction is consistent with the United States Constitution and laws. l) Proving Service m) Time Limit for Service 1) If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). n) Serving Property or Assets. Service by Publication (Constructive Notice) If no other means is available. a) Additional measure allowed when 1) D is evading b) For those whose interests or whereabouts cannot be ascertained 1) Must allow reasonable time to make appearance.

ERIE DOCTRINE
1332 Claim; Or 1367- Claim brought with a 1331 claim, b/c the state claim needs to be evaluated by state law. Erie Doctrine Applies here Court should be applying State Substantive Law & Federal Procedural Law Erie helps to resolve conflicts in the law when the line between Fed procedural law and state Pure Federal Question 1331 Claim Federal Procedural law Federal Substantive law Non Erie (All Fed Law) There is no conflict here to be resolved. Both Federal and State Procedural and Substantive Law.

substantive law blur

FEDERAL COURT SUBJECT MATTER JURISDICTION (Limited Jurisdiction) State Court Subject Matter Jurisdiction (General Jurisdiction)

ERIE & PRODGENY

State Matter in State Court State Law and State Procedural Non- Erie, no conflict in Laws Federal Question in State Court Reverse Erie: THIS IS A NONISSUE Applying Fed Substantive Law (Fed Question) & State Procedural. When conflict Erie will help resolve.

1) Swift v. Tyson a) If there is no federal statute or applicable state law, apply the gen com. law of the place where court sits. b) Laws are written statutes, not common law. 2) Origins: Erie Railroad v. Tompkins Tomkins injured while walking along the railroad tracks. a) Rule: You apply the substantive law of the forum pursuant to choice of law principles (ie Swift v. Tyson is not good law. Federal Courts must apply substantive law that is promulgated by State courts in deciding diversity issues). b) It is unconstitutional for federal courts to find or make-up state substantive law (that power is reserved to the states). c) Concurrence: Not unconstitutional, just a reinterpretation of Sec 1652. 3) Constitutional decision or just a statutory clarification 1652 a) Congress does not have the power to make substantive law; Constitution will not allow it. 4) Erie Generally a) Easy part: Always apply the procedural law of the forum (state law in state court, fed law in fed court). b) Purpose: To help curb forum shopping for substantive law & to avoid inequitable admin of laws. a) Note: That the prudent lawyer can still shop for conflicts of law b) Rules Enabling Act 2072 i) (a) Authorizes the Supreme Court to prescribe general rules of practice & procedure ii) (b) Such rules shall not abridge, enlarge, or modify any substantive right c) Rules of Decision Act 1652 (fed common law) = in a 1332 action, the court applies State law to a substantive issues. i) Fed Rule of Civ Procedure Wrong, relationship or room then Substantive law. ii) Round and Round (1) Some court say to apply conflict rules once, others say to apply it twice. 2) Substantive or Procedural Step by Step Analysis a) Useful Definitions i) Substantive Law (1) Pertains to rights and responsibilities; legal duties and remedies (Rules of Society) ii) Procedural Law (1) Operation of the courts and the process of litigation (Rules of Lawsuits) b) F Can the conflict between the federal and state law be harmonized??? Then both are applied. Is there a clear state substantive law and clear procedural law that do not conflict? NO Can you harmonize the conflict? No. Source of Federal Law in conflict? Yes YES Apply S-Sub and F-Pro law to case

Apply the harmonized pro and state sub laws

US Constitution v. State Law

Federal Statute v. State Law

FRCP v. State Law

Fed CL v. State CL

Constitution Wins!!!

Federal Statute WINS!!!

FRCP wins; unless abrid, enlg, mod sub state rights

No Winner: Apply tests below.

Federal Common Law/General Practice v. State Law -Tests: 1) Hanna Test: Is a FRCP, Constitutional Law, or Statute on Point? a) State Law Loses 2) York Test: Outcome Determinative Test a) If the federal procedural rule determines the outcome of the case, then it is considered substantive law State Law Wins. b) Outcome determinative = This particular case for Erie purposes (ie outcome determinative with regards to the ability pursue the litigation in that forum). c) If you get FRCP do not apply this test i) Reagan Statute of Limitations is ALWAYS substantive b/c Rule 3 has a forward looking prospective focus; and, to hold otherwise and allow rule 3 to determine when a case was commences would abridge enlarge or modify the state substantive law. 3) Byrd Test: Balancing Test Federal practice of having juries decide factual questions = fed wins. a) Modified Outcome Determinative Test i) Outcome determinative test could apply to almost any procedural law. So, modify: ii) Is state law bound up w/ the state substantive law (rights, and privileges) in question? (1) Balance the bound up state interest against the interest of the federal court. (a) Are the Fed interest that outweigh the state interest? (b) Does the state even have a stated interest? (2) Bound Up Test (a) How important is the state rule (b) how important is the underlying state policy with respect to making sure the state rule is followed. (c) Does the state legislature feel the rule is necessary or important to be used. 4) Hanna v. Plumer Rule Serves wife instead of D: Ok under FRCP, not ok under Mass. Law. a) If the state law at issue conflicts with a FRCP (not just general federal practice [Erie, York, Bird]) i) Federal rule applies over the state law pursuant to REA, unless the Federal rule cannot, abridge enlarge or modify the state law. ii) Rule: Where there is direct rule conflict between State and Federal rules, unless the Fed rule would lead to inequitable results or forum shopping, the federal rule will dominate pursuant to federal statute. iii) Harlans Concurrence: test for substantive law should be whether the rule would cause people to flock to the federal court or modify peoples expectation of the law. It doesnt make sense for the federal government to be able to say than anything is procedural. 5) Burlington N. R. v. Woods Fed. R. App. Proc. 38 v. AL Statute of affirmance penalty = Fed P wins. 6) Stewart Org. v. Ricoh AL forum selection case law v. 1404 = Federal Practice wins. 7) Gasperini v. Ctr. for Humanities NY statute v. 7th Amendment interpretation = Modify federal practice Test Hint: If you want to get the state law to apply over the federal law, you need to make the argument that the source of the federal law is federal common law or federal common practice and that state law is bound up with important state interest. 8) Example: a) Rule 8+11: Lawyer and/or the party have to sign the complaint (malpractice) b) State: State is worried that there are frivolous lawsuits so another doctor has to sign off on the complaint. c) Analysis: i) For State: Violates REA, abridges modifies or enlarges the rights of plaintiffs as against doctors which the state has expressed an interest in shielding from frivolous suits.

ii)

For Fed: Rule 8 and 11 say nothing about a doctor signing a complaint, there is no conflict. Harmonize: Not an exhaustive list of requirements.

Semtek v. Lockeed St. Ct. Breach of K. Removed to Federal Court. Dismissed on CA SOL. refiled on Maryland state court which had a 3 year SOL. y Federal common law governs the claim-preclusive effect of a dismissal by a Federal court

sitting in diversity, which in turn will apply the claim- preclusion laws of the state in which the Federal court is located. Upholds the twin aims of Erie that a P should not be able to get a different result from State or Federal law; if refilling was available in State court, it should be available in Fed Court. Adjudication on the merits for the purposes of res judicata, 41(b)-Involuntary Dismissal, requires that the court examine and adjudicate the facts of the case and come to a final result.
8 Steps of Erie Analysis 1. Apply the procedural law of the forum 2. Apply federal substantive law in questions in 1331 cases. 3. Apply state substantive law in diversity cases (and state supplemental jurisdiction)pursuant to state conflict of law principles. 4. If state and federal law conflict, then try to harmonize the conflict (avoid having to choose between the two). 5. If you are unable to harmonize, check the source of the federal law. 6. U.S. Constitutional provision Federal law controls 7. Look for constitutional federal statute or rule that is even arguably procedural that does not abridge enlarge or modify Federal law wins. 8. If federal practice or common law, then do an Unguided Erir-York-Byrd outcome determinative/bound up balancing test

1) The Thought Experiment: Federal Courts Pretending Like they are State Courts a) Must apply state substantive law the same way the state court would. b) Follow state statutes, state cases; unless, Fed Court is predicting State Supreme Court. c) Like a state trial court (following precedent) or the way the State Supreme Court would (predicting precedent). d) Is a state law binding or persuasive in a federal court diversity (1367) case? i) Binding; unless, they are acting like a State Supreme Court 1652 e) Federal Court precedent applying state law binding or persuasive in state court? i) Persuasive only. f) Should we reopen federal cases based on state law where Fed case guessed wrong on state law? i) No P should have gone to state court. g) Certification i) Ask a State Supreme Court to answer a special question about state law being applied in federal court. h) Abstention

i) Postpone the federal ruling if the state is about to decide the issue (just wait); then court will apply the new state precedent. (Justice delayed is justice denied).

Conflict of Law Which States Laws should be applied?

1) Lex Fori: Apply the law of the forum a) If there is P.J. over the D then it is fair to use that State s substantive law. i) Pro s (1) Judges know their state s laws; ease of administration (2) Bright line predictability (3) No game playing to work around rules. ii) Cons (1) Leads to forum shopping 2) Multilateralism: Lex Loci Most used a) Apply the substantive law of the situs of the wrong (Where the action or omissions happened or where the property is located). i) Pros (1) No forum shopping (a) Because neither party can choose where the wrong took place. ii) Cons (1) Assumes, incorrectly, that all conflict principles from state to state are the same. (2) Even if they were the same, the courts interpret laws differently. (3) Judges are not familiar with other state s laws and misapply them. iii) Support (1) Comity: Pay respect to another courts jurisdiction and sovereignty (2) Vested Rights: If the wrong happened there, then the legal remedy is tied to the country where it emanated. 3) Unilateralism: a) What, generally, seems fair. b) Apply the law of the forum that is the place with the most significant relationship Similar to minimum contacts analysis. i) Pros: (1) Flexible, more realistic, approach ii) Cons: (1) No predictability or consistency (2) Open to manipulation by skillful counsel in persuading judge. 4) Harmonization a) Focus on the commonalities rather than differences i) Pros (1) Governments have attempted to obtain uniformity this way (2) May also be accomplished by a rational agreement in a contract dispute that law of the state where the contract was formed should apply. (a) CA uses gov t interest test weighs the interest of each state, or foreign state, has in the dispute. It will also enforce choice of law provisions in contracts but will only enforce if the law has a substantial relationship to the

parties or their transaction, or any other reasonable basis for the parties choice of law provision. ii) Cons (1) Seems unrealistic to expect people to hold hands and be friends

Venue
28 U.S.C. 1391 Venue: The most convenient and proper locality. Subject Matter JX (1) (2) Diversity 1391(a) Judicial district where Judicial District in any D resides, if all D s which a substantial reside in the same St. portion of the events or omissions giving rise to the claim occurred, or a substantial portion of the property that is the subject of the action is situated. Fed Q 1391(b) Same as above Same as above (3) (only if no 1 & 2) Judicial district in which the D is subject to personal jurisdiction at the time the action is commenced.

Judicial District in which any D may be found.

5) 1391 (c) a) Residence of a Corp is the U.S. Judicial district where it would be subject to P.J. i) Residence = incorporated or PPOB (1) PPB = Brain or muscle. 6) 1391 (d) a) For a foreign D alien - venue will be in any U.S. District (Dee K) 7) Judicial Districts a) Distinct boundary lines that usually go to the boundaries of the state. ie Nevada has one district boundary lines that co to its state borders. b) Largely populated states have more districts ie California has 4 (North East Central South) c) Divisions i) Districts will further be subdivided into divisions for even more convenience and locality. 8) Transfer of Venue: Use the Public and Private factors a) A suit is brought in on judicial district, but the claim may transferred to another district by either party, but usually the D. Transfer is improper if the court transferred from was improper. i) 1404 Transfer between two proper courts. 3 rings are met; substantive law of the first court/forum applies. ii) 1406 Transfer from an improper court because there is no venue to a proper court, substantive law of the second court applies.

iii) 1631 Transfer from an improper court because of a lack of personal jurisdiction to a proper court that has PJ The substantive law of the second court applies. 9) Forum Non-Conveniens (Piper Aircraft v. Reyno) a) FNC is when the D asks the court to transfer the case, it is at the courts discretion to grant or deny. b) FNC needs to demonstrate that the balance of the factors are sufficient to overcome the interest of the P in choosing the forum, because, almost always, it is the D that applies for FNC. Use the public and private factors. i) Private Factors Wonderful-CAPE (1) Ease of access to evidence (2) Witnesses ability to appear (3) Costs of witnesses to attend trial (4) Ability to view place where facts occurred (5) Practical consideration such as costs and logistics. ii) Public Factors (1) Court too congested (2) Local interest in adjudicating local case (3) Familiarity with applicable law (4) Avoiding problems with conflict of law or application of foreign law (5) Unfair burden on the jury c) Special note: If the move of FMC moves the action into a kangaroo court one that offends traditional notions of justice, the court (exercising its discretion) will not transfer the case.

Access to Counsel
1. Civil Cases a. Lassiter v. Department of Social Services. i. In Lassiter, the Court held that the Fourteenth Amendment does not require an absolute right to counsel in parental rights termination proceedings an indigent s right to appointed counsel is only recognized where physical liberty is at stake. The Court then weighed the presumption that there is no right to counsel against the factors set out in b. Mathews v. Eldridge. i. The factors are: the nature of the private interests affected; the state s interest, including the fiscal and administrative burdens that the additional procedures will entail; and the risk that the procedures used will lead to erroneous decisions. Unless the individual's interests are strong, the state's interests weak, and the risk of error high, due process does not require the appointment of counsel. c. The Exception i. Forty states require, either statutorily or judicially, appointed counsel for indigent parents in proceedings affecting the parent-child relationship, including dependency, termination of parental rights, child removal, child placement, child abuse, or child neglect proceedings. The states that do not

have such a requirement are Delaware, Hawai i, Illinois, Michigan, Mississippi, Nevada, Rhode Island, South Dakota, Tennessee, and Vermont.

Financing Litigation
1. Generally a. Methods of Payment i. Retainer: Cash paid upfront to the attorney in order to keep their services when required. ii. Hourly Rate: Attorney gets paid by increments of time. iii. Flat Rate: Attorney must guess at amt of time it will take to complete a case and charges accordingly. 1. Difficult to predict litigation costs/fees. iv. Contingency Fees: Acts like basic credit, attorney extends services & and only receives payment if awarded a settlement or award during the case. 1. Typically increases as the case proceeds, up to 50% on appeal. v. Pre-Paid: Insurance pre-pays and retains a lawyer that will fight on your behalf. 1. Potential conflict of interests between insured and insurer, incentive just to settle instead of conduct vigorous defense. vi. Pro-Bono: Legal Aid, provides access to the court system for the poor for free . b. English Rule v. American Rule (how payment is distributed) i. English Rule: requires the losing party to pay awards, and attorney s fees (both his and the winning party s) 1. Pro: a. Encourages strong but low damage cases. b. The P is fully compensated 2. Con a. Discourages high cost law reform cases (law changing cases) ii. American Rule: Each party has to pay its own fees 1. Pro: a. Encourages law reform cases 2. Con: a. Discourages meritorious low-damage suits. Prevailing side has to pay attorney out of the award, so P does not get full compensation but does get court fees (Witnesses, reporters) 3. Rule 68: This is a rule that gives people the incentive to settle. The rule allows the D to make an offer to the P up to 10 days before trial. a. If P takes the offer and case settles, they file proper offer and acceptance notices with the court and the case is dismissed b. If P does not accept offer the case proceeds to trial i. If the award is less than the offer, the offeree (P) must pay the costs of incurred by the trial.

4. Rule 54(d): Allows prevailing party to recover costs other than attorney s fees. iii. Fee Shifting: Exceptions to the American Rule 1. Contract for attorney s fees: Parties can always agree beforehand in an K who will pay for attorney s fees. This provides an incentive no to breach K. 2. Common law shifting of fees: If it is found that there has been malicious prosecution from the outset or that litigation has been continued once it became so, courts will shift fees on their own. 3. Statute shifting fees: Legislature can pass laws that shift fees in certain kinds of cases or situations. a. There are MANY of these. 4. 1920: Permits judges of clerks to tax: a. Clerk and marshal fees b. transcript costs c. fees and disbursements for printing and witnesses d. fees for copies necessarily obtained for use in the case e. docket fees under 1923 and f. compensation of court appointed witnesses and interpreters c. Contingency Fees i. Pros: 1. Allows poor to mid class client w/o $ to pay for hourly fees to get representation w/o cash on hand. 2. Attorney will collect 30%-50% but only if you win. ii. Cons 1. Attorney s will only take cases that they find will be a slam dunk. Financing Agreement Who s in Risk Pool How is Cost Spread Liability Insurance Other policy holders Non accident driver s will be paying for premiums subsidize your court needs as those who have you for theirs accidents Contingency Fees Other clients of the Fees recovered from lawyer, some who winning cases sill nor recover subsidize costs of damages (hrly or losing cases. retainer) d. Things to consider before suing: i. Possibility for award 1. Does the D have insurance or personal wealth to pay for the award ii. Will the insurance company want to control the defense? 1. The insurance company will control the defense b/c they are paying for it?

2. Ins. Co. s want the ability to settle if the cost is going to be higher than they want. a. Shows a possible conflict of interest between the insured and the insurer, lawyer is supposed to vigorously defend the client e. Duties to the Client i. The lawyer has the duty to explain all costs and fees associated with representation, including methods of payment. f. Other ways to finance litigation i. Mandatory Pro Bono ii. Common Fund: Shares fees among similarly situated persons rather than shifting them to the opposing party. (class action).

Provisional Remedies
Useless if too late, worse than useless if it required costs to procure. Especially when the medial time to trial is more than 18 months. The Problem: Must be granted or denied before the case has been heard on the; decision is based on incomplete information. 1) How should a court decide whether to grant temporary relief when all the relevant information is not yet available? 2) When does the curtailment of ordinary procedures in granting provisional relief amount to denial of due process? The focus: On the harm that final relief cannot repair. 1292(a)(1) Allows for interlocutory appeals from orders granting, continuing, modifying, refusing, or dissolving injunctions or refusing to dissolve or modify injunctions PI s qualify as an injunction under this statute. pp 320 Note 7. Appellate Review Grant or denial of a injunction is subject to reversal only fi the lower court 1) Based its decision upon an erroneous legal premise 2) Abused its discretion (When a court does not apply the correct law or bases its decision on an clearly erroneous finding of material fact. Rule 65: Preliminary Injunction and Temporary Restraining Order Emergency situations (a) Preliminary Injunction: (1) Notice: Requires notice of the Preliminary Injunction to the adverse party. States a hearing will be held to enjoin adverse party. - Notice can be very informal. Not Rule 4 Notice, can be as much as calling up the adverse party that day to inform them of the hearing and mentioning the issue. (2) Consolidating Hearing of trial on the Merits: May advance trial on the merits. (b): Temporary Restraining Order for 10 days Dire circumstances ONLY! (1) - TRO may be issued w/o notice (ex parte) if: (a): Affidavits show the moving party will suffer serious injury before the adverse party has time to defend at a hearing; AND (b): the movants lawyer must state in writing any efforts to give notice and why notice should not be given at this time (helps to prevent people from hiding funds in offshore account before they are frozen by the court.

(3) - Expediting the Preliminary Injunction (Lasts longer than 10 days): If the order is issued w/o notice, then you must have a hearing ASAP, the only hearings that will take precedent over such a hearing is a hearing of like kind. The moving party must proceed with the motion or the court will dissolve the order. (c) Security Bond Both TRO and PI required a security bond to be paid when filed. To insure it is a legitimate PI or TRO. The price is usually set at 2x the price of the amount of the property. Exceptions Some courts exempt a P from posting a bond when they show a hardship (e.g. true indigence or cash needs for running a business); Other courts have allowed the amounts to be very low (like a few hundred dollars). pp.320 Note B. Notes: If the P loses on the merits, the D s later action can only be against the bond, not action for separate damages exists (Russell v. Farley). pp. 320 Note C. Rule 64: Seizing a person or property This rule allows the issued party to seize the person, money or property. Important to make sure that money or property at issue is not hidden or destroyed. a) Remedies Under State Law In General 1) All remedies providing for Seizing a person or property (in order to secure the satisfaction of an ultimate judgment) are available pursuant to the state law in which the district court sits. 2) A federal Statute governs to the extent applicable b) Specific Kinds of remedies 1) The remedies available under this section include i. Arrest ii. Attachment iii. Garnishment iv. Replevin v. Sequestration vi. Other Corresponding or Equivalent Remedies 2) These remedies are available whether or not a) The remedy is ancillary to the state action b) The remedy must be obtained by an independent action Fuentes v. Shevin Double case, writ replevin let retailer seize stove and stereo when dispute over service arose. Court found the FL and PN procedures violated 14th Amendment DP. - Prejudgment replevin statutes, which deprive individuals of their property must comply with procedural due process. - Due process requires notice and an opportunity to be heard before any depravation of their possessory interest in property takes place in a meaningful time and meaningful manner. - There are extraordinary situations that justify postponing notice and the opportunity for a hearing. Seizure of property without notice or a hearing is allowed in a few limited situations. o First, the seizure must be necessary to secure an important governmental interest. o Second, there must be a special need for very prompt action.

o Third, the person instituting the seizure must be a governmental official responsible for determining that it was necessary and justified in the particular instance.  Examples: Seizure in bank failure, mislabeled drugs, taxes, national war effort, etc. Matthews v. Eldridge Test: Whether a individuals has received DP of law for prop deprivation 1) The private interest that will be affected by the official action 2) The risk of erroneous deprivation of such interest through the procedures used/The probable value, of additional or substitute procedural safeguards 3) The Gov t s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. When would the court find a PI or TRO should be granted. c. Iglis v. ITT Antitrust Bread Below Cost Pricing Case. i. Prelim Test 1: Iglis v. ITT District Court Test 1. The P will suffer irreparable injury if the injunctive relief is not granted a. Something that cannot be repaired over the time it takes to get to trial, so the injunction is needed now. 2. The P will probably prevail on the merits. a. Issuing a TRO or PI is a big deal, must show that you are likely to win b/c if the granted the PI or TRO could injure the D. 3. In balancing the equities, the D will not be harmed more than the P is helped by the injunction (no disproportionate injunctions) a. Weigh both sides when granting the injunction 4. Granting the injunction is in the public interest a. Make sure that the public interest in the long run is served. ii. Prelim Test 2: Iglis v. ITT - Circuit Court Test 5. Where the harm the P faces is sufficiently serious, there only needs to be a fair chance of succeeding on the merits of the case.

Remedies
 At Law  Substitutionary Remedy A remedy such as money damages, which serves as substitute for the harm (where the harm is related to something other than money); there can be a problem in valuing the harm, however.  Compensatory Damages Money damages designed to put the wronged plaintiff in the position she would have been absent defendant s wrong.  Liquidated Damages A sum certain amount of damages (or formula for determining a sum certain) established in a contract in the event there is a breach of the contract; that amount, however, cannot be so much that it is actually a penalty.  Punitive Damages Hybrid of criminal and civil law. Damages to punish a defendant and to serve as a deterrent for willful, wanton and particularly egregious behavior

(as such, in Ca, fraud, oppression, or malice ). Punitive damages are paid in addition to P s general compensatory damages (usually available only in tort, not contract).  Replevin Taking property form a party and giving it to a rightful owner. j Process:  A writ allowing a party to reclaim property to which they believe belongs to them, just have to file a motion with the court and show there is a possessory interest in the property. j Notice:  Parties are entitled to notice: Due process concerns exist here too. It requires that a person be given notice and an opportunity to be heard BEFORE any deprivation of property takes place. It must give meaningful time and be given in a meaningful manner.  Ejectment - Get persons or items off of certain property or out of certain areas.  Equity (A jury is not available for equity actions)  Specific Remedy Ct orders a party to do something or not to do something often tied to a specific piece of property or an objectionable, political, or economic arrangement.  Injunction/Enjoin An injunction n. means the court enjoins v. --- or stops/prohibits a party from doing something; such as taking ownership of property, consummating a contract or a business deal, running a segregated school system, ect. j Interlocutory Appeals: (Rare): 1292(a)(1) permits an interlocutory appeals from injunctive relief.  Contempt Proceeding Ct s power to make sure equitable remedies are complied with the disobedient party can be fined or put in jail. A court at law does not have this power.  By Substantive Branch of Law  Contracts j Rescission nullify contract j Restitution pay back or return specific items to put pty back in position b4 K. j Reformation create, add, change, or delete erroneous contract terms so that the contract reflects the actual agreement reached by the parties.  Property j Quiet Title determine rightful owner of property j Forced Entry Detainer landlord ejectment of tenant j Remove Cloud from Title remove subordinate names recorded on deed/title.  Business j Constructive Trust control over funds D wrongfully converted. j Accounting partnership s or corporations official declaration of assets and liabilities (and owner s equity).

Government j Writ of Mandamus order for public official to do or not do something.  FRCP Remedies  Declaratory Judgment (R.57/2201) Order by the court declaring the respective rights and duties of the parties to that they can continue their legal relationship w/o breaching any duty because they are unaware of their specific duties. It is neither at law or equitable ; instead it is a statutory remedy as area awards of attorney s fees.  Examples and Important Points  Newspaper fears libel suit (Invoking 1st Amendment Freedom) injunctive relief? y Plaintiff Defendant switch in name only. y Therefore courts are very hesitant to grant injunctive relief because the actual suit (person suing the newspaper, would mean that the 1st Amendment freedom was brought up in the defense to the well pleaded complaint ).  Patent infringement / Injunctive Relief y Immediate 1331 Fed Question Jurisdiction. y Value of the injunction is what it would be worth to P or what it would cost the D to cease the activity.

The Process of Litigation: The Rules

g. Rule 3: Commencement of Action: Just states that you have to file a complaint with the court. h. Rule 8 Pleadings - Claims for Relief i. (a)(1): A pleading must include: Grounds for SMJ ii. (a)(2): The grounds for relief 1. If no proper grounds D can file a 12(b)(6) motion a. 2 ways, incorrect law, or incorrect facts (not all elements are there) 2. Legal theories must be stated (Negligence, Breach of K) iii. (a)(3): damages sought (prayer for relief) iv. Inconsistency of Claim Rule 8(d)(2-3) 1. Pleading in the alternative is necessary in some cases to cover bases. It is allowed. i. Rule 4: Service of Process i. D must serve P process within 120 days of filing the complaint. j. Rule 12: Pre-Answer Motions i. If Pre-Answer motion is denied, Answer must be filed within 14 days. ii. 12(b) Motions 1. Motion to dismiss for lack of subject matter 2. Motion to dismiss for lack of personal jurisdiction 3. Motion to dismiss for lack of venue 4. Motion to dismiss for insufficient process 5. Motion to dismiss for insufficiency of service of process

iii.

iv. v.

vi. vii.

6. Motion to dismiss for failure to state a claim upon which relief can be granted. a. Even if what you say is true, there is no basis under law in which you can obtain relief Only in the complaint 7. Motion to dismiss for failure to join a party required under Rule 19 12(h) Timing: 1. Motions in red must be filed in D s first responsive pleading 2. Motions in black may be filed at any time during lawsuit. 3. 12(b)(1) can be filed for the first time on appeal. 12(h)(3) The court can move to dismiss a case for lack of subject matter JX on its own motion (sua sponte) 12(c) Motion for Judgment on the Pleadings 1. Takes into account the: complaint, answer and any other motions filed at this time. 12(e) Motion for a more definite statement: for a poorly written complaint 1. Rarely successfully invoked, given liberal notice pleading. 12(f) Motion to strike improper material (can strike parts of defense or pleading/affirmative defense).

k. General Notes on Pre-Answer Motions i. E and F - Trying to get the complaint altered (both rarely invoked) ii. Good things about PRA s: Buy time, saves money, cheap fast easy, increase burden on the P. iii. Generally simple, only undisputed matters, if they are disputed/complex, then often denied. iv. Denied, case goes forward: 14 days to Answer v. Granted, case ends with Dismissal w/ prejudice l. Answer Motions i. Responding to the Pleading: Rule 8(b) 1. In response a party must a. State in short, plain terms its defenses to each claim asserted b. Admit or deny the allegations asserted against it by an opposing party. 2. Denials: A denial must fairly respond to the substance of the allegation 3. General v. Specific Allegations: A party may in good faith deny all allegations even jurisdictional grounds in a general denial. Otherwise must specifically deny allegations or generally deny all those except those specifically admitted. 4. Denying Part of an Allegation: A party can admit part and deny other part. 5. Lack of Knowledge: May state you lack the knowledge to respond to an allegation

ii.

iii. iv.

v.

vi.

6. Failing to deny Rule 8(b)(6): results in admittance. Affirmative Defense: Rule 8(c): Confession and avoidance (Must be in FRP) 1. In response to a pleading, a party can file an AD including: a. Accord and satisfaction; arbitration and award; assumption of risk, contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; illegality; injury by a fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. 2. In response to an affirmative defense a P would file a 12(f) motion to strike, not a 12(b)(6) motion. 3. Affirmative defense CANNOT surprise the P. Counter Claims: Rule 7(a)(3) 1. Requires a reply if the counterclaim. Notice of Answer: Rule 5(a,b,d) 1. D must serve a copy for the answer with the P s attorney and must file a copy with the court within a reasonable time. Default Rule 55 - Entry of Default Default Judgment a. TO be entitle to a Default Judgment, P must prove: i. D failed to respond to P s complaint ii. Sum certain, damages were for a specific amount 1. There could be a separate hearing for damages iii. Affidavit showing that the amt is still owed iv. The Di is not an incompetent or an infant/coma D and Rule 60(b) 1. D files a motion to say that Rule 55 Motion should be set aside due to some mistake (But only if the judgment had not been rendered yet).

Pre-Trial Timeline

Timeline y Complaint 120 days to serve y Answer or Pre-Answer Motion o 21 Days with regular service o 4d Waiver (60 days in US/90 if outside) y If nothing Rule 55 entry of default that a P will attempt to turn into a judgment. o Rule 60(b) y If Pre-Answer Motion Duty to answer postponed. y P has 21 days to respond to the Pre-Answer Motion y D is often allowed by courts to Reply to Ps Response as part of a briefing. (Probably 14, but its at the judges discretion). y Parties can set hearing on motion before trial 12(i), which Judge can set, rule or defer to later o Rule from the bench or take under advisement. y If Denied - D has 14 days to Answer to the complaint y If Granted Case over. y If the Answer contains Counterclaims, then same timing in reverse.

Pleadings
 Filing the Complaint  Rule 3: Commencement of Action Just states that you have to file a complaint with the court.  Rule 8: Claims for Relief  (a)(1): A pleading must include: Grounds for SMJX

(a)(2): The grounds for relief y If no proper grounds, hit with a 12(b)(6) j 2 ways incorrect law, or incorrect facts (not all elements are there) y Legal theories must be stated (negligence, Breach of K)  (a)(3): the damages sought (prayer for relief)  Inconsistent in claim: Rule 8(d)(2)-(3)  Arguing for the alternative is necessary in some cases to cover all bases; thus it is allowed.  Rule 7 Pleadings Allowed  (a) Only these pleadings are allowed  (1) a complaint  (2) an answer to a complaint  (3) an answer to a counterclaim designated as a counter claim  (4) an answer to a crossclaim  (5) a third-party complaint  (6) an answer to a third party complaint; and  (7) if the court orders one, a reply to an answer.  Service  Must serve process within 120 days of filing the complaint   Answer Motions  Responding to the Pleading: 8(b)  (b)(1): In a response a party must. y (b)(1)(a) State in short, plain terms its defenses to each claim asserted; And y (b)(1)(b) Admit or deny the allegations asserted against it by an opposing party.  (b)(2): Denials: a denial must fairly respond to the substance of the allegation  (b)(3): General v. Specific Allegations: a party may in good faith deny all allegations, even jurisdictional grounds, in a general denial. Otherwise must specifically deny allegations or generally deny all those except those specifically admitted.  (b)(4): Denying part of an Allegation: a party can admit part & deny the other part  (b)(5): Lack of Knowledge: May state you lack the knowledge to respond to an allegation  (b)(6): Failing to Deny: results in an admittance  Affirmative Defenses: Rule 8(c): (confession and avoidance)  Must be plead in the first responsive pleading or waived  (c)(1): In response to a pleading, a party can file an AD including: y accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.  In response to an affirmative defense a P would file a 12(f) motion to strike, not a 12(b)96).  Affirmative Defense Cannot Surprise the P.  Notice of Answer: Rule 5 (a, b, d)  D must serve a copy for the answer with the Ps attorney and must file a copy with the court within a reasonable time.  Amendments of Pleadings: Rule 15

y y y y y

Parties can amend or supplement their pleadings w/in 21 days before the D has responded, or by consent, or otherwise by court permission as justice so requires. Judge usually freely allows. As long as the amendment is not 1)in bad faith 2)prejudicial This applies to ALL pleadings from beginning to end. The earlier the amendment, the more likely it is to be granted. 15(c) SOL and Amendment: Even if the SOL has run, if the amended claim arises out of the same conduct, transactions, or occurrence, then amendment is considered filed at the time of the earlier filing. o There are different ways to calculate when statue begins and ends running.  When accident occurred OR when P discovered injury or should have discovered. o Does not change the statute of limitations, it relates back to the original complaint

1) Settlement The closer that it gets to trial, the more exposure the D has and the more incentive he has to settle; at the beginning parties need to project strength. 2) Peremptory Pleas forces pleader to take a position on the merits of the suit 3) Dilatory Pleas Response that delays the suit Haddle v. Garrison At will employee fired in order to deter participation as witness in federal criminal trial. y App Level - Appeals from FRCP 12(b) (6) motions are not reviewable where binding precedent renders the complaint without legal recourse. y SCOTUS - Third-party interference with at-will employment relationships states a claim for relief under 42 USC Section: 1985(2); because the focus of the statute is to provide punishment for those who interfere, or attempt to interfere with federal court proceedings. John Doe Pleading California allows for anonymous defendants. Conley v. Gibson No facts presented The standard of a short plain statement is very broad; the FRCPs do not require a claimant to set out in detail the facts upon which he bases his claim. Notice pleading is made possible by the liberal opportunity for discovery and other pretrial procedures set forward by the FRCP/s Exception: Conspiracy/Fraud/Defamation require that the plaintiff allege specific facts to pass muster.

Ethical Limitations and Procedure

Rule 11 Responsibility to Sign Pleadings a. Requires every paper filed with the court be signed by at least one attorney with the signers address, email and ph #. b. Do s and Do Nots.

i. Lawyer must sign pledging that the pleading is not filed for some improper use i.e. to harass or delay litigation ii. Based on existing law, an non-frivolous arguments for extending, modifying or reversing existing law or establishing new law. iii. Pleadings have or will have evidentiary support. iv. Any denials of allegations are warranted. c. Sanctions i. if violated. Lawyer can be subject to sanctions, attorney s fees, dismissal ect the court can in its discretion impose the sanctions (usually fine but can be anything). ii. 21 day safe harbor to correct: Esq get 21 days to correct any offending pleading before the court finds out. 1. Procedure: Letter to confirm call, email to confirm letter and call (copy of relevant law and motion). When you file the R.11 motion, append the paper-trail. iii. Order to show cause; why an esq action does not violate rule 11(b) iv. Scope: sanctions are limited to what suffices to deter repetition of comparable conduct by others similarly situated. v. Limitations on Money Sanctions: A court cannot assess sanctions against the client for his attorney s violation of 11(b)(2). d. Discovery: Rule 11 do not apply to discovery materials under Rules 26(g)-37. Note: Cannot be sanctioned if you are not an attorney or if the improper conduct is in words spoken, only applies to written documents. Some have challenged that it violates 2072 REA but as it was held in: Burlington v. Woods: Rules which incidentally affect litigants substantive rights to not violate this provision (2072) if reasonably necessary to maintain the integrity of that system of rules & Rule 11 is reasonably necessary to maintain integrity of the judicial system. Walker v. Norwest Corp Pleaded facts that tended to show that there was not complete diversity y A court in review of Rule 11 sanctions does not abuse its discretion where the offending counsel has not done sufficient research to accurately plead the citizenship of parties in attempting to invoke diversity jurisdiction. y It is not the obligation of the court to do the research that rightful falls upon counsel in determining if complete diversity exists among parties when attempting to invoke diversity jurisdiction. y Where the objecting party does not argue the point, a court is under no duty to inquire into the financial circumstances of an attorney which it is sanctioning with monetary fines.

Christian v. Mattell, Inc. Stupid lawyer didnt inspect Cool Blue Barbie and refused to withdraw his complaint on behalf of a party who believed there was patent infringement where there was none. Remanded for lack of specificity of what sanctions pertained to writings.

Rule 11 sanctions are limited to paper(s) signed in violation of the rule; Conduct in dispositions, discovery meetings of counsel, oral representations at hearings and behavior in prior proceedings do not fall within the scope of Rule 11. In order to support sanctions under inherent court authority, a district court must make an explicit finding that the counsels conduct constituted or was tantamount to bad faith.

Trial Definitions y Pleading - The formal presentation of claims and defenses by parties to a lawsuit. The specific papers by which the allegations of parties to a lawsuit are presented in proper form; specifically the complaint of a plaintiff and the answer of a defendant plus any additional responses to those papers that are authorized by law. y Motion - A written or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant. The applicant is known as the moving party. y Points and Authorities - The legal and factual basis for an argument in a lawsuit. A party who wants the judge to rule a particular way on a motion often must submit a memorandum of points and authorities, in which the party argues that the facts, statutes, and relevant precedents support that party's position. y Affidavit Witnesss sworn statements or testimony; more official under pains and penalty of perjury. y Order - Direction of a court or judge normally made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings. o (Proposed Order) User friendly order for a judge. y Verdict Finding of fact by a jury. y Finding Finding of fact by a judge. y Ruling Any decision a judge makes during the course of a lawsuit. y Judgment opinion: the legal document stating the reasons for a judicial decision.  Zielinski v. Philadelphia Piers Injured fork-lifter Company denied whole paragraph when something ( owned forklift) in that paragraph was true, court held that denial was ineffectual as a result.  Under Rule 8(b) of the Federal Rules of Civil Procedure, allegations in a complaint that are not specifically denied are deemed admitted.  You cant be misleading in your denials; complaints should contain only one allegation per paragraph.  Ends may have justified the means and the fact that the RPII was the same insurance company makes it a little easier to digest.  FSLIC v. Suggs Conservator FDIC try to collect on 2.9m loan.  When the government takes over an insolvent institution you cannot rely on affirmative defenses involving oral misrepresentation  Punitive damages are not available as against the government w/o govt consent.

Discovery
 Pretrial Conference Rule 16(b)  Generally: Held several times throughout a lawsuit to ID issues for trial and avoid wasting time in court on trivial or irrelevant isues.

 Timing:  The 1st conference will be held 90 days after the D appears, or 120 days after service (whichever is first).  Later conferences will establish lists of experts, witnesses, evidence, exhibits, ect.  At final pretrial conference court will order a Pretrial Order that governs the trial.  Types of Discovery  Three Official Categories  R.26 What you are entitled to and when y (a)(1)(iv) Insurance coverage is a mandatory disclosure  R.27-36 How you can get what you are entitled to.  R.37 What to do when the other party wont produce what you are entitled to.  Informal Discovery you can always call up and just ask questions.  Mandatory Discovery Rule 26  Rule 26(a)(1)(A)(i-iv):  Each party must produce initial disclosures of the following without the other partys request. y (i) Name & Address, Phone # of each individual likely to have discoverable information. j Must use for support to claims or defenses, unless used solely for impeachment. y (ii) Copy of or description of where to find all documents that P can use for support of claims or defenses. j You only have to initially give your good cards; well ask for your bad ones. j If its not in your control its not your duty to initially produce things not in your possession; argument can be that you werent sure if a particular evidence existed. j Some judges have said that control means: readily accessible/obtainable j Only list the witnesses that YOU want to call; you can get away with not calling someone if you can argue that they do not support a claim or defense. j Paper documents, or electronic information. y (iii) Totaling of each category of damages claimed (the P discloses this) j must make available for copying and inspection UNLESS privileged into or protected from disclosure. j includes materials bearing on the nature and extent of injuries suffered y (iv) Copy or inspection of Insurance agreement that may cover the alleged liability of the party (usually the D produces this).  Note: Rule 26(e) requires a party to supplement or correct disclosures made under 26(a)(1)(A)(i-iv) w/in a timely manner  Note: Rule 26(a)(1)(b) exempts from mandatory small claims and those in which either a welldeveloped record or the absence of counsel make disclosures unnecessary or potentially unfair.  Rule 26(f) Conference  The party must confer about discovery at least 21 days before the 16(b) pretrial conference  Mandatory discovery material is due at this 26(f) meeting w/in 14 days thereafter.  This is where the parties will discuss the 26(a) disclosures (or bring them) and then make a discovery plan.  Witnesses and Exhibits  Rule 26 (a)(2)(C)(ii): Expert Testimony: Parties must disclose experts 90 days before trial or 30 days after disclosure by the other side. y (1) A written report must accompany disclosure of expert witnesses detailing

a) his opinons b) the data upon which they are based c) exhibits d) his qualifications including publications of the previous 10 years e) a list of trials at which he testified as an expert over the past 4 years, and f) compensation This provides potential impeachment material for opposing counsel (is the expert witness working for the client? Conflict of interest issue) y (2) You do not have to disclose other expert consultants and they cannot be subpoenaed. y (3) Do not have to be an initial disclosure because they are not a fact witness.  Rule 26 (a)(3): Pretrial Disclosure: All witnesses and trial exhibits must be disclosed at least 30 days before trial y (1) Timing: At least 30 days before trial parties must disclose, unless intended solely for impeachment j a complete witness lest j witnesses whose testimony will be presented by depositions j all documents and exhibits y (2) Rule 26(a)(3)(B) Objections: A party may object to any of the above 14 days after they are disclosed.  The Scope of Discovery  Rule 26(b):  Anything relevant to a claim of defense is discoverable even if the evidence is not admissible in court, so long as it appears reasonable calculated to lead to the discovery of admissible evidence.  Davis v. PreCoat Metals P sought information about discrimination against different kinds of employees. y Discovery that is narrowly tailored to the allegations of a complaint is discoverable, even if it involves the personnel files of employees other than the parties to the suit. j Upon a showing of good cause the court may expand the scope of discovery to anything related to the subject matter  Exception 26(b)(2)(C): a court must limit the extent of discovery if it determines that: y (1) it is reasonably cumulative or duplicative or can be obtained from a more convenient/less burdensome/less expensive source y (2)the party seeking discovery has had ample opportunity to obtain the information by discovery on the action y (3) the burden or expense of the discovery outweighs the benefit.  Privilege Rule 26(b)(5)  Protects the sacred and solemn confidences (m*arriage, attorney-client, 5th amendment right against incrimination)  Elements y A communication y In confidence y between attorney and client (employees of an attorney are considered an attorney) y For the purpose of facilitating a legal service.  Privilege Log       

y All documents removed from production must be listed in the privilege log.  Waiver of Privilege y Disclosure to a 3rd party of any privileged information, email, document, constitutes a waiver of privilege. y If the privileged information becomes an issue in the dispute: Exp: the P cannot claim Dr/Patient confidentiality regarding the severity of his injuries when he is suing based on those injuried y Privilege is waived if the client sues the attorney for malpractice y Privilege does not apply to ongoing crimes or future conduct. (WTF?)  Mistake of Production of Privileged Info: Rule 26(b)(5)(B) y After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has, must not use or disclose the information until the claim is resolved.  Corporate Context y Privilege applies to persons, and corporations y Privilege will exist between an attorney and any level of employee so long as they make statements to attorney, in confidence, and regarding their employment, for the purpose of facilitating legal service.  Attorney Work Product: Rule 26(b)(3)  Documents and tangible things: prepared for in anticipation of litigation are usually protected as attorney work product  Exception: Rule 26(b)(3)(ii) An opposing party can only obtain attorney work product if it has substantial need and cannot, without undue hardship, obtain the substantial equivalent by anyt other means. y Exception: Mental impressions and trial strategy, however, are never discoverable.  What is a client? y Can extend to a person or corporation  What is an attorney? y In Lawfirms: Can extend from top management middle management lower level employees if made to a LL attorney within the context of their employment y Only in the context of giving legal advice (no money need to have been paid) y Must be made in to attorney in anticipation of specific ligations y Belongs to the client and can be waived by j publication if client talks to third party about it  the communication must be made in circumstances where there is an objective reasonable expectation of privacy j client sues for malpractice. y Includes agents/reps for attorney and or client (secretary, investigators, associates) y Facilitating Legal Services j purpose or confidential communication j cant hide by having a lawyer do non-legal work/task (just a fact witness)

j Courts disagree on tax preparation done by an attorney  Hickman v. Taylor Tugboat sank, opp lawyer interviewed witnesses; protected.  Preserve privacy of opposing counsels thought processes/trial strategy no borrowing from the wits of your adversary or their hard work.  Rule 26(b)(3)(C) permits any party or other person to obtain their own previous written statements or transcripts of an oral statement.  Protective Order - Rule 26(c) permits, the court, upon showing of good cause to issue an order protecting a party or person from annoyance, embarrassment, oppression, or undue burden or expense (trade secret, Confiedntial)  The Duty to Preserve Evidence: Spoilation  spoliation refers to the destruction or material alteration of evidence or the failure to preserve property for anothers use as evidence in pending or reasonably foreseeable litigation  RULE: One has a duty to preserve material evidence when the party reasonably should know that the evidence may be relevant to anticipated litigation. y When this is impossible b/c one does not own or control the evidence, one still has an obligation to give the opposing party notice of access to the evidence or notice of possible destruction involving that evidence is anticipated.  Silvestri v. General Motors Corp Car crash, did not give GM opportunity to inspect vehicle; court dismissed the case because he let the evidence spoil. D was able to appeal to federal court because it related to FRCP discovery procedure.  You have a duty to possess things that are in your custody possession or control; some courts apply this to 3rd parties.  The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.  Rule 37 for Sanctions: A court may impose sanctions for spoliation, but only to the extent necessary to redress conduct which abuses the judicial process  Adverse Inference Rule  The spoliation of evidence to prove an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction y Elements to prove j that the party having control over the evidence had a duty to preserve at the time it was destroyed j that the records were destroyed with a culpable state of mind j the evidence was relevant to the claim.  Informal Discovery  An attorney can employ any number of discovery devices, including devices not set forth in the rule  Private investigators  Calling or visiting witnesses  photos and videos from public area  Additional Discovery Rules  Depositions: Rule (27, 30-32)

Depositions are interviews conducted of parties or non-parties under oath w/ a court reporter to transcribe the interview y Rule 30(b)(3): Permits video-taping depos which is useful in obtaining demeanor evidence for use at trial y Rule 30(e)(1)(A)-(B): The deponent or a party may request that the recording or testimony be reviewed, and make changes in form or substance, they can sign a statement listing the changes and the reasons for making them. But they must be allowed 30 days to do so.  Rule 30(a)(2)(A)(ii): 10 Depo Rule: Paries are limited to 10 depo sessions during discovery  No person shall be deposed more than once w/out leave (the permission of the court)  Unless good cause is shown, depositions are limited to 7 hours per day, 1 session can last more than one day. Must ask for leave of the court Rule 30(d)(1). If too long, opposing side should ask for reasons then if not good enough get a Protective Order 26(c).  Subpoena Duces Ticem  Depo that requires the witness to bring documents; You can then later call them and coerce them into just giving you the documents by letting them not be deposed.  Notice or Subpoena directed at an organization Rule 30(b)(6)  one may name an organization as a deponent, so long as they describe with reasonable particularity the matters for examination  The organization must then designate a representative (one or more) that will testify on its behalf, and may set out to which matters each designees will testify.  The designated deponent must testify about information known or reasonable available to the organization.  Rule 32: Use of a Deposition  (a)(2) Can be used to impeach a witness  (a)(4) The depo of a witness can be used for any reason, whether or not the deposed is a party to the lawsuit if the court finds y A) the witness is dead y B) is more than 100 miles away from the federal court house y C) is elder, infirm, or otherwise cant make it to trial y D) the party deposing the witness could not procure the witnesses attendance by subpoena y E) on motion and notice, under exceptional circumstances in the interest of justice for the depo used.  (a)(3) An adverse party may use for any purpose, the deposition of a party.  Pros and Cons  Con: Depositions are costly and time consuming. They require the payment for the time of attorneys, court reporter, the room in which the depo is taken, the cost of the recording device and the amt of time the witness is out of work for the depo  Pro: the deposing party gets the demeanor of the deposed on record. Great use of video for this reason. Can see body language. Great use of evidence if other attorney is being difficult and a discovery argument should arise. The deposer can ask follow up questions to get the story pinned down.  Rule 31: Deposition on Written Questions  Read to deponent, under oath, record the spontaneous answer.  Cheaper, no follow up answers.  Interrogatories: Rule 33 

 

 Only parties may be served with interrogatories  Parties are limited to 25 questions, including sub-questions, unless otherwise stipulated or ordered by the court.  The responsing party must serve its answers & specific objections w/in 30 days of being served  Rule 30(d): If the answer to an interrogatory can be answered by examining records, and the burden of ascertaining the answer would be the same for either party may specify the records to review and tive the interrogating party a reasonable time to examine them.  Pro: Good for basic objective info.  Con: Not always helpful because answers are filtered through the attorney. Requests for Admission: Rule 36  A request for written admissions/denials from opposing party to narrow issues that have to be proven at trial. Once admitted, this is conclusive at trial (becomes fact)  If NOT admitted, a party must specifically deny or assert a lack of knowledge  A party has 30 days to answer or object to a request for admission. If not answered on time, the question is deemed admitted.  Split: Some courts read R.36 as intended to deal w/ peripheral issues, and this will not assume central issues to the case to be admitted. Some will find that the central issues have been admitted.  36(b): States an admission is inadmissible in future litigation against the admitting party. (this is an exception to Res Judicata). Request for Production of Documents: Inspection: Rule 34  A non-party may be served with a request for a production of documents by being served with a subpoena under Rule 45(a)(1)(A)(iii)  May also be achieved by deposition duces tecum: scheduling a deposition and specifying that the deponent may instead produce the documents  Responding pariy has 30 days to produce document  Rule 34(B)(1)(c) The requesting party must specify the form electronic documentation needs to be provided in.  Previous doctors reports can be requested notwithstanding D/P privilege if the P has put her health at issue. Subpoena: Rule 45  Info? Request for Physical Examination: Rule 35  A judge must approve; moving party must prove that opposing partys physical or mental condition is in question and that there is good cause for the exam  Examined party is entitled to a copy of the results  MUST BE A PARTY Witnesses are not allowed.

Modern E Discovery  Digital Information to Discover  Converting documents to ESI (Electronically Stored Information)  Scanned documents are not word searchable, and must be coded/indexed  Optical Character Recognition (OCI) creates text files from images which are words searchable  Electronic files are also converted to a common format for later search  One then creates a load file for accessing documents through Summation or some other viewing software, along with further coding into subjective fields  9 Step Process - E-Discovery Flow Chart

1. Records Management a. Retention policy of client (Zubulake) 2. Identification a. Whats out there? What do we want? And why do we want it? 3. Preservation a. Make sure they (and you) do not start deleting information; dont want to open yourself up to spoliation of evidence. b. Duty to preserve you have duty to preserve information once you reasonably realize its going to be the subject of litigation. c. Trigger Date The date when the duty to preserve starts. d. Litigation Hold What at attorney does to protect its own client (at this point we may be sued for X, therefore, the following information needs to be preserved. Therefore you cannot delete or recycle space). i. Keep all emails, memos, docs of key players e. Directive to Company Cease and desist destruction of company, with continual monitoring to ensure that directions are being followed. 4. Collection a. Bury information b. Battle of search terms. 5. Processing a. Conversion to a common file format (to use/view) 6. Review Analysis a. Summation/Casemap i. what is relevant, what are key docs, key info what is privileged? 7. Production a. Product your own information (for us) self-assessment b. Creat discovery production sets for opponents (watch inadvertence) c. Dont product attorney client privileged, work product info 8. Presentation a. At trial stage b. Impeach, attack, fight for your client.  E-Discovery Issues and Concerns  Storage capacity makes it easy to lose or hide files  Rule 37(f) a court may not impose sanction on a party for failing to provide ESI lost as a result of routine, good faith operations of an electronic information system.  information is easily altered if not enctypted.  Experts may compromise data, or accidentally reveal privilege information Rule 26(b)(5)(B); 26(f)(4); Rule 502 of Rules of Evidence combat this problem by assertion of privilege after mistaken production.  Enforcement of Discovery Rules 37 & 26(g)(1)  Rule 37(a): a party may move the court to compel disclosure or discovery  Rule 37(b): Any party which disobeys a discovery order may be subject to sanctions including  adverse inference  prohibition from supporting or opposing certain claims  striking pleadings  staying proceedings until order is obeyed  dismissal

 default judgment against the disobedient party or  contempt charges  Rule 37(c)(1): Failure to disclose mandatory discovery under rule 26 renders such evidence inadmissible  Rule 26(g): applies similar standards as Rule 11 to the process of discovery, permitting sanctions for its violation  every discovery request response, or objection must be signed and certifies y With respect to disclosures, that they are correct when made; and y with respect to discovery requests, responses, or objections, that it is j nonfrivilous j not interposed for any improper purpose; and j neither unreasonable nor unduly burdensome or expensive.  International Discovery  Transnational Conflict  U.S. Discovery laws are very broad, more than other countries, however foreign litigants must still comply with discovery or risk Rule 37 sanctions y Blocking Statute: j In response, some countries adopted blocking statutes which make it a crime to disclose documents or information for evidence in foreign proceedings.  28 U.S.C. 1782: This may actually benefit foreigners. A district court may order a person residing in or found in the district to produce information for use in a foreign or international court. SCOTUS has further interpreted that this information need not be discoverable in the foreign or international court in order to be discoverable under the statute.  Forum Non Conveniens: often require the D to concede jurisdiction and that the U.S. discovery will control so they cannot escape broad U.S. Discovery.  International Solutions  The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters permits discovery through Letters of Request, diplomatic consular officers, or through specially appointed commissioners for the taking of evidence. Letters of request are most common.  Contract states must designate Central Authorities for receiving and transmitting Letters of Request  Article 23 permits a contracting state to declare that it will not execute a letter of request for the purpose of obtaining pre-trial discovery documents  Article 27 permits contract states to use other methods of taking evidence) y In Societe Nationale v. US Dist. Ct, however SCOTUS held that the convention does not supplant, nor does it take priority over discovery methods outlined in the FRCP. j Rather, courts out to exercise special vigilance and careful consideration to avoid abuses in international discovery.

Resolution Without Trial Settlement

 Voluntary Dismissal: Rule 41(a)  Provides that a p may dismiss an action w/o court order by  filing a notice of dismissal before the opposing party serves an answer or motion for summary judgment  filing a stipulation of dismissal signed by all parties who have appeared.

 

the dismissal is w/o prejudice, unless the P has previously dismissed any federal or state action based on or including the same action. This is NOT a judgment on the merits. j To avoid this result, the settlement K should stipulate that the P will refrain from refilling. Involuntary Dismissal: Rule 41(b)  Ps failure to prosecute dismisses the case with prejudice & operates as a judgment on the merits.  P is estopped from bringing the same or related claim because of prior adjudication Judicial Review  Ordinarily, judges need not examine a settlement, though they must grant Ps request for dismissal  Rule 23 Class Action Exception: Judicial approval of settlement is often required in Class Action suits, in cases involving minors, and some multi-defendant cases.  Legislatures also build protections into settlements. For example that Age Discrimination in Employment Act creates strict guidelines for settlement agreements. Settlement Contract  Settlements are contracts, and as such can be attacked on all the same grounds as contracts (ie fraud, duress, mistake, incapacity)  If the settlement bars P from bringing a claim but P-re-files, D has a 12(b)(6) motion (or A.D.) based on Accord and Satisfaction  If a party fails to uphold an element of the settlement, the other party has an action for breach of contract. However, if the parties settle a federal question, the breach of contract may not be heard in federal court y Solution: The parties can request a stipulated judgment or consent decree be part of the judges oder of dismissal, such that the court may retain jurisdiction over the settlement. Confidentiality Agreements  Settlement may contain confidentiality agreements providing for the return of documents, the silence of the parties regarding the settlement terms & liquidated damages in the event of breach (though LDs are not to be punitive)  A confidentiality agreement, however, may not be used to circumvent or to avoid testifying to the substance of a trial (Kalinauskas v. Wong)  Information related to the settled cases will be permissible, but information related to the structure of the settlement will not be permitted. Settlement terms are usually not admissible at trial uner FRE 408.  Settlements can avoid this problem by explicitly providing for disclosure by court order.  Rule 68: If D has offered a settlement (has up to 10 days before trial to do so), and the offer is denied, then if the P denies and gers less than the offer they have to pay for the Ds attorneys fees. Partial Settlement  Parties may stipulate to liability but contest damages  Alternatively, parties may agree on a high-low figure for damages, but contest liability. Thus P still recovers some amt in the event of a D verdict, and D does not lose to much in the event of a P verdict. y

Alternative Dispute Resolution

 Mediation: Usually persuasive, and non-binding, where parties have interest in continued relationship; mediator facilitates settlement between parties without rendering a decision; parties make decision.  Focus is on the legal and business interests of the parties

 Arbitration: Often binding; arbiter will render a judgment on the matter  Focuses on the legal rights of the parties  A binding arbitration award is often final & not subject to judicial review in extreme cases  Arbitration permits the parties to design their own procedure, and to dictate the applicable substantive law  Federal Arbitration Act: Limits the grounds for overturning an arbitration award to findings of: fraud, corruption, misconduct by the arbitrator or the arbitrator exceeded its authority.  Principled Negotiations  Decide the issue on the merits of the case  Look for mutual gains whenever possible  When conflict arises, insist that the resolution be based on some fair standard  Be hard on the merits but soft on the people  Online Dispute Resolution  Two parties can plug in their settlement amounts and the computer averages them out and spits the number back to the parties.

Summary Judgment: Rule 56

 Usually filed after discovery. The judge will examine the admissible evidence in a light most favorable to the non-moving party. If there is no genuine issue of material fact, summary judgment may be granted.  Burden of proof: 2 Burdens  Burden of Production: is on the party who has the burden of proof at the trial. A moving party without the burden of proof need only demonstrate that the non-moving party has no evidenciary support. y Uncontested expert opinion is not grounds for summary judgment because a jury could always choose not to believe an expert.  Burden of Persuasion: once you get past 50/56(a), and the case goes to jury to beat by preponderance of the evidence  To defeat summary judgment, evidence must be admissible at trial  Either side can issue the motion. First motion is Motion for Summary Judgment second is Cross Motion for Summary Judgment. If both parties file, not trial is had, bother recognize there is not question of fact (no job for a jury). Celotex Asbestos case y The plaintiff carries the burden of production on all elements essential to their cause of action to withstand a motion for R.56.

Judgment as a Matter of Law: Rule 50(a)

 Considering all evidence in the light and with also reasonable inferences most favorable to the nonmoving party, the court will only grant a directed verdict where there is no sufficient evidentiary basis for a reasonable jury to arrive at a contrary verdict.  Timing: argued by D after the Ps case-in-chief, or by either party after the Ds case-in-chief.  Burden of Proof: P has the burden of persuasion to show Ds liability by a preponderance of the evidence. Reid v. S.P.R.R. Cow killed by railroad

 

When the evidence produced by a Plaintiff points with equal force, one of which makes the defendant liable, the other of which does not, the Plaintiff must fail as a matter of law because a reasonable jurys verdict in the Plaintiffs favor would be a pure guess Party must provide some proof/evidence as to what happened, sot that if they find for a party, they can do so by making a rational decision.

Renewed Motion for Judgment as a Matter of Law: Rule 50(b) JNOV

 Available if no reasonable jury could find the way the jury did.  In order to have a JNOV, there must first be an earlier Rule 50(a) motion at the close of evidence  CL: allowed JNOV only as a renewal of a similar pre-verdict motion.  Not a Constitutional Violation of the 7th Amendment because you are guaranteed the right only to a fair, rational jury, not an irrational unreasonable one.  If there are no facts for the jury, you are not entitled to an empty procedure.  Motion must be filed within 28 days of judgment.

Judge v. Jury
y y y y y y Jury Instructions: Judge tells the jury how to proceed and provides the substantive law to apply o Safe: Use Model jury instructions. Judicial comment: Judges may comment on the evidence, but must not be biased (Dangerous) Excluding improper influences: voir dire (peremetory motions) External Influences Courts will not grant a new trial, JNOV because of fucked up deliberations. Witnesses Guess is not proof. o A court will not let a jury consider a witnesses guess as evidence. o Fact-Eye Witnesses

Motion for a New Trial: Rule 59  A motion for a new trial may be granted either because of flawed procedures or flawed verdicts.  Mistrial Flawed Procedure: Including impermissible argument by attorneys, error in admitting evidence, error in jury instructions, or the misbehavior of a juror.  Flawed verdicts: Most commonly results when a judge finds a verdict to be against the great weight of evidence.  Harmless Error Minor flaw not affecting the jurys ultimate decision. (ie.. ya something went wrong, but it wouldnt have changed the outcome.)  Motion may be made at ANY POINT during trial.  Reviewable on standard of Abuse of Discretion Lind v. Schenley  Judgment as a matter of law constitutes a final judgment reversing the jury verdict, this is radical and may not be granted; a rule 59 motion is less radical  Under rule 50(c) a party filing a 50(b) motion may be permitted to make a conditional motion for a new trial; if granted, it permits a new trial automatically in the evnt that the final judgment rendered by the grant of the 50(b) is later reversed.  Conditional New Trials  A judge may grant a new trial limiting to damages. This is only available where a judge can be sure that whatever led the jury astray on damages did not also lead the jury astray on the issue of liability (general not in tort cases where damages are highly related to culpabilitythink Breach of K)

 Remittitur & Additur  Remittitur: A judge may order a new trial unless P agrees to accept reduced damages y P must get a choice between reduced compensatory damages and a new trial, but at least one circuit has held that judges may reduce punitive damages w/o giving the P a choice.  Additur: The judge increases the damage award y Additur has been deemed unconstitutional by federal courts b/c is it an award in excess of what any jury had granted. Some state courts, however, still permit additur.  Standards of Review  De novo  Harmless error  Abuse of discretion.

Appeal
 Requirements to Appeal  To appeal, a party must have had a final and adverse judgment at trial on the particular issue in the case.  Elements: y Final Judgment (nothing left for trial court to do) y That is Adverse (Lose or not win as much as you believe you are entitled to) y On an issue that has been raised below (preserved) j Review conclusions of law, NOT findings of fact (but can assess if there were: any facts [56] or sufficient facts [59] to support the conclusion)  Interlocutory Appeal: (exception to the final and adverse judgment rule)  Rule: An appeal may be heard upon a judicially certified order, or in cases involving injunctions, receivership, admiralty, or as otherwise stipulated by 1292 y Generally: An intermediate appeal of a court order prior to a final judgment. The law discourages interlocutory appeals b/c of delay, harassment, fostering additional expense and piecemeal litigation  Types of Decision  Majority  Plurality Decision stands (but its not binding authority, is very persuasive though)  Dissenting/Minority  Standards of Review  Of a court order: A judge may only be reversed upon a finding of abuse of discretion; otherwise, appellate courts defer to trial courts discretion  Of an issue of fact: If a judge rules on issues of fact in a bench trial, he may be reversed only if that finding was clearly erroneous  Of an issue of law: Issues of law are reviewed de novo (anew) by appellate courts  Harmless error: Rule 61: No error in admitting/excluding evidence, or any other error by the court or a party, is grounds for disturbing a judgment or order if the errof is harmless and does not affect the parties substantive rights.

Res Judicata, Claim Preclusion

One bite at the apple

 After a final judgment on the merits, the P is barred from bringing the same cause of action all over again in a 2nd lawsuit if the claim in the 2nd lawsuit was raised, or could have been (or should have been) raised, in the first lawsuit.  For the purposes of ERIE, Red Judicata and Collateral Estoppel are considered substantive law, not procedural law.  Policy  Fairness to parties (litigation must end)  Judicial Economy (fairness to system)  Rule 13(a): Compulsory Counterclaims  A pleading must state as a counter claim any claim that, at the time of its service, the pleader has against the opposing party if the claim  Arises out of the transaction or occurrence that is the subject of the opposing partys claim  does not require adding another party over whom the court cannot acquire jurisdiction  Note: Claim preclusion does not apply when the first court lacked jurisdiction, or P did not know of reason to bring claim (latent injury)  Elements  Same Claim: The claim to be precluded in the 2nd lawsuit must be the same claim as in the first suit  (see Transactional and Primary Rights Test below)  Same Parties: The 1st and the 2nd suit must be between the same parties  In privity? Parties in the 2nd suit, in privity with the party in the 1st suit are deemed the same parties and thus preclude the adjudication of the claim y How to determine Privity: One may be deemed in privity with a party to the 1st suit if their interests are so mutual that the party in the 2nd suit is deemed to have had his rights adequately represented in the first suit (the Constitutional requirement of notice must be met) y Note: Parties are commonly deemed in privity when there is: j A substantial legal relationship between them j An express agreement to be bound by a decision to which one is not a party j Procedural Representation: guardian ad litem, class actions and virtual representation.  Searle Bros v. Searle Interest in Marital Property House Partnership/2nd suit allowed. y Separate individuals, even family members, hold separate claims, no matter how closely related y However, if a party not asserting a claim dominated or controlled the earlier litigation, it may be fair to preclude their subsequent suit. j The boys (partnership) did not join the first lawsuit because they had no standing in a divorce action;  Final Judgment: The first suit must be fully and fairly litigated w/a final judgment on the merits.  On the Merits: Means on the substantive issues in the first claim  What is on the merits y Jury trial y directed verdict y summary judgment y Rule 37 dismissal (failure to produce) (Punishment) y 12(b)(6) y Rule 41 failure to prosecute (Punishment)

 Tests for determining the Same Claim  Transactional Test (Broad): Majority Test  If the claims arise out of the same transaction, the accident, they are also barred b/c they should have been brought in the first lawsuit y Policy: The point of this test is judicial economy. By allowing the broadness of the test, the amt of claims that should haave been brought int eh 1st suit is wide, so more claims will be barred from taking up the courts docket  Primary Rights/Same Evidence Test (Narrow): Minority Test  Claims are only precluded if they are contingent on the same evidence, same facts and same substantive elements in the first claim.  Frier v. City (exception to the broad/narrow generality) - Suit of replevin for cars that were towed; refilled in Federal Court Due Process This suit would be precluded under transactional test, but permitted under PRT.  The Judge  Rule 42(b): the judge can always sever the claims if he sees fit and save the claim  Erie Note  A claim preclusion is a matter of state substantive law. Thus if a claim is brought in federal court after prior adjudication in state court, the federal court must determine what preclusive effect a state court would have assigned to the judgment in the first case, and vice versa.  The preclusive effect of a federal judgment in a 1332 action should be the same as would be attached to the judgment in a state court if the forum state had rendered the judgment.

Collateral Esoppel: Issue Preclusion

Narrower than claim preclusion because it can only preclude something actually litigated.  Prohibits the relitigation of factual or legal issues adjudicated on the merits in a pervious suit  Elements  Same Issue: The issue must be identical to that litigated in the 1st suit.  Burdens of Proof: A prevailing in Criminal court cannot preclude the issue in civil court where the burden is lower (just because you won reasonable doubt, doesnt mean the P cant prove preponderance); Likewise if the issue is litigated against the D in a civil trial cannot be precluded because the burden his higher (P may meet preponderance, but not reasonable doubt)  Same Party (only need one) a party to the 1st suit: The preclusion must be against him  The US Gov cannot be subjected to non-mut issue preclusion  Must be actually litigated or determined  If the verdict could have been based on more than one issue, that issue may not be precluded unless the party seeking preclusion can prove that the verdict was based on the specific issue sought to be precluded (ie through a special verdict form) y Extrinsic Evidence: 2 of Judgments 27 cmt. f states that one may use EE to determine which issues were actually litigated in the previous suit  Default Judgment: If the default judgment Is entered, no issues are precluded b/c no issues were actually litigated. y Exception: Some JXs preclude issues which would have had to be proved in the default proceeding.  Avoiding Resolution

One who deliberately avoids the resolution of factual issues (such as by delay & evasiveness) may be bound by a determination reached w/o full adjudication, the requirement of actual litigation being met instead by his substantial participation in an adversary contest in which he was afforded a reasonable opportunity to defend himself but chose not to (In re Sammy Daily)  Final Judgment on the Merits: The first suit must render a judgment  Central Issue  The issue must have been essential to the judgment in the first suit. y When two alternative grounds for a decision exist, neither determination should be binding in subsequent litigation. However, if the judgment is affirmed on appeal, with the court upholding both determinations, upholding one but not the other, or upholding one w/o determining the other, the judgment will be conclusive/preclusive as to the issues upheld by the appellate court.  Types of Non-mutual Issue Preclusion  Defensive Issue Preclusion  When a P loses a suit against the D and attempts to sue another D in a subsequent suit, the D in the subsequent suit may collaterally estop P from litigating the same issue on which P lost y All courts permit this use of Issue Preclusion  Offensive Issue Preclusion  A P who was not a party to the original suit, may sit back and watch the outcome of the 1st lawsuit and then ride the coat tails of another Ps victory by precluding D from invoking the same defense litigated in the original case y Some courts refuse to permit this y Rule: If P could have easily joined the 1st lawsuit, or application of offensive estoppel would be unfair to the D, a court should not permit its use j Judicial Economy: Increases litigation b/c potential Ps have incentive not to intervene j Unfair: First suit may involve nominal damages, second suit may involve much greater damages. 1st suit may have been in inconvenient forum. D should hot have these 1st suites precluded against him. y Ill. Central Gulf RR v. Parks Got hit by train; denied consortium to husband second lawsuit for husband. Contrib Negligence claim not actually litigated, not precluded. o RR could have gotten around it, if they had, had used a special verdict form.

Joinder
Steps/Analysis Per Claim  Rule Authority (what rule allows joinder)(19,14,23,13,18,20)  Three Rings  Strategy (just cause you can doesnt mean you should: confuse jury, look greedy, throw enough mudsome will stick  Discretionary Separation (Rule 42(b), judge can separate some of the claims out)  Res Judicata (does the claim or issue preclusion create a block if you need to sue later? Multiple Claims  Joinder of Claims  A P may join claims once the initial action is underway

The judge has the discretion of separating the subsequent claims into other trials if the claims would confuse, by unfair, or keep all the allegations and corresponding claims straight at trial y The claims arise out of different factual events y Difference evidence y Witnesses, etc Counter Claims (Rule 13(a),(b))  A claim made by an opposing party. Note: Amount of counterclaims can exceed the amount of the opposing partys claim  Compulsory Counterclaim: Rule 13(a): must arise from the same transaction or occurrence that forms the basis of the Ps claim y If these counterclaims are not raised by the D while he litigates the Ps lawsuit, then the claims are precluded by res judicata  Permissive Counterclaim: Rule 13(b): If the counterclaim does not arise out of the same transaction or occurrence then it is up to the judge to decide if he will allow the claim, or recommend that it be brought in another suit.  Rule 18 would allow multiple counter claims. Cross-claims: Rule 13(g)  A cross-claim is an offensive claim brought against a co-party (Joined by 20 and 19)  Parties on the same side (ie P & P or & ) will bring claims against each other. y Judges will only allow a cross-claim if the cross-claim arises out of the same transaction or occurrence hence all claims are compulsory. j Note: P will often sue more than one D in hopes that they will turn against each other and make the Ps case easier to prove. Alliances can be struck. This is a strategic move. j If the cross-claim has no diversity, we need to move to supplemental jurisdiction 1367  There is NO SUCH THING as a permissive cross-claim. Multiple Claims and the Three Rings  All claims that are brought under a joinder must also meet the Three Rings test for jurisdiction and venue. Otherwise the claims CANNOT be joined.  In multiple claims against same , we do not need to be so concerned with the PJ ring or V, (unless there is specific jurisdiction over a D for the claim). We really only need to be concerned with having independent SMJ over each additional claim. We do this through 1367. y 1367(a)(b) Supplemental Jurisdiction for the Additional Claims in 1331 or 1332 j Counterclaims may be available, but only if they are compulsory, same transaction or occurrence j 1367 is available for ALL cross-claims since they arise out of the same transaction or occurrence j 1367(a): 1331 or 1332  if the claim arises out of the same case or controversy j 1367(c) Exceptions  Supp. Claim that raise a novel or complex issue of state law  Supp. Claim substantially predominates over other claims  District court dismissed main claim  Any other compelling reason Joinder of Parties/Multiple parties 

 Permissive Joinder: Rule 20  Must arise out of the same transaction or occurrence or series of transactions or occurrences  Must have a common question of law  Each new party must meet the three rings requirement y Permissive joinders are up to the judges discretion  Required Joinder: Rule 19(a) Do we have a required party?  Necessary to give complete relief to existing parties; or  Will be subjected to having their legal interests being impaired; or  Their absence will create a substantial risk of double or inconsistent obligations. y Multiple liability A certain amount is at stake, but multiple people are claiming that amount (distinguished from multiple liability hitting several cars)  Each party must meet the three rings.  If required joinders cannot be joined under any one of the three rings, they cannot be joined.  A court may later decide that someone is not required after seeing the difficulty of joining them (Req. Joinder Light).  A joint tortfeasor is not, necessarily, a required party.  When Joinder if not feasible: Rule 19(b)  The court would look at four criteria to decide if the lawsuit could move forward or must be dismissed. y If indispensible: lawsuit cannot go forward y If dispensable: lawsuit can go forward j Whether a party is dispensable  The extent of the prejudice to the parties w/o the required party  Shape relief to lessen or avoid prejudice  Whether the judgment would be adequate w/o them  Whether there would be an adequate remedy w/o the required party.  If you end up at a rule impasse (impossible to sue both required parties in same place) Due Process may command that the suit go forward.  Impleader/Third Party Practice: Rule 14  Derivative Liability (Lawsuit w/i a lawsuit)  A claim against a third party that may actually be liable to the defendant. y Requires derivative liability AND y Three Rings Are RELAXED j PJ Rule 4(k)(1)(B): Allows jurisdiction within a 100 mi. of the federal court house. j SMJ: 3rd party does not need Independent SMJ because of 1367 (sup jurisdiction) j Venue: As long as venue is proper among original parties, V is satisfied.  Ok for COMPLETE or PARTIAL (contribution) flow through liability.  Joined by Rule 18  If the 3rd party P and 3rd party D are thought to be viewed on opposite sides of a second v.  A P may invoke Rule 15 Amendment and bring a claim against a 3rd party .  A 3rd party may being a claim against a 2nd-3rd part .  Improper Use: Defense of Its not me, its him is not a R.14 claim, its a defense (denial) against the original claim by the P.  Diversity Issues  3rd Party Impleader does not destroy diversity because the R.14 claim is not a claim by a P.  If the R.14 claim is against a diverse party, it provides independent SMJX.

 Intervention: Rule 24  Intervener says hey I want to be there  Intervention of Right Test: Rule 24(a) y is given an unconditional right to intervene by a federal statute; or y claims an interest relating to the property or transaction that is the subject of the action & is so situated that disposing of the action may as a practical matter may impair or impeded the movants ability to protect its interest, unless existing parties adequately represent that interest.  Permissive Test: Rule 24(b) y On timely motion, the court may permit anyone to intervene who: j Is given a conditional right (if certain conditions are met) to intervene by a federal statute; or j has a claim or defense that shares with the main action a common question of law or fact.  Court may apply class action criteria and disallow the intervener in because the exiting parties adequately represent the interest of the existing parties.  Whenever U.S. Statute is being challenged as unconstitutional  US Given unconditional right to intervene.  Failure to Intervene in a Law Suit  Parties have to be in the litigation in order to be bound by it. If the person is not brought into the suit they are not bound by the suit. y Exception: In employment discrimination cases (Martin v. Wilks) Congress held that the burden shifts to the outside party. They should have intervened when they had a chance.  Interpleader: Rule 22 1335  Rule Impleader: Rule 22  Rule Authority Three Rings Strategy Separation - Res Judicata  Allows a preemptive strike on behalf of stakeholder. The take holder can require all claimants get together in one suit. Thus eliminating the chance of inconsistent obligations. y All of the three rings must be met. j If you dont have PJ over the s (claimants), you cant use this.  When all parties are from same place use this rule.  1335 Statutory Interpleader  If the court grants this interpleader, federal court orders state court lawsuits currently in progress to be dismissed.  Special Set of Three Rings y Personal JX j Nationwide service of process 4(k)(1)(B) (personal JX) However, presence JX is still subject to the Scalia Brennan debate. j Minimum contacts test still applies (but its with the Entire Nation). y SMJ j Minimum Diversity Only one claimant need be diverse from one other claimant. j Only $500 needed y Venue Unchanged rules. j (1) where all Ds reside j (2) substantial portion of events or omissions took place

j (3) where any D is subject to PERSONAL JX (anywhere in US).  The money must be put in the court registry (there may be an interest in keeping the money out of the court registry to earn interest).  Class Action: Rule 23  Justice for the little guy  P(Class) v. Defendant  Must chose a representative  Class y  Rule 23(a) Does the class satisfy the Due Process?  Commonality y Mixture of the Below j Same transaction or occurrence j Same case or controversy j Common Question of Law or Fact  Adequacy y Do class reps FAIRLY represent the interest of the class/will attorney FAIRLY represent ALL members j similar claims, similar amounts, similar remedy sought  Those who dont have as much at stake dont care enough (wont defend hard enough) v. Those who have a lot at stake care too much (not settle)  Want an apology? Injunction? Damages? So do they have the same thing at stake. y Is counsel adequate to represent the class?  Numerosity y Too many to make joinder in courtroom impracticable/inconvenient (20+) y Doesnt have to be physically impossible and there is NO magic number.  Typicality y Do class reps FAIRLY represent the interest of the class y Are they standing in the same shoes or are they different  Rule 23(b) Types of Class Action  (1) Inadequate Relief There isnt enough money to settle all potential claimants (Dont make a run on the bank) (need every member of the class joined)  (2) Equity or Injunction (need every member of the class joined) y Seeking that the do or not do something to the class as a whole y Back-pay is equitable relief  (3) Damages y Not all members of the class are necessary  Rule 23 - Notice Requirement  All possible class members must receive some kind of notice so that they can either join in the class or (if a 23(b)(3) class) opt out and sue on own.  Settlement  Judicial approval is required for class action settlements.  Paying the Attorney  Congress has provided for fee shifting in many class action remedies.  Some attorneys take it out of the relief

 Some attorneys do it for publicity/advertising.  Opting Out  Perfectly fine to opt out and wait and see.  Non-Mutual offensive use of collateral estoppel. y Some courts are hesitant to allow this.  Subject Matter JX in Class Actions  Federal Question no problem, no special issue because it is based on the face of the wellpleaded complaint rule.  Diversity Minimal Diversity y As long as any one member of the class is diverse with any defendant there is diversity. y As long as over $5 million in the aggregate for the entire class.  Supplemental JX y Maybe if one claim was under $75,000 all class members claims less than $75,000 may be added o. y 1367(b) specifically not included in Rule 23.