Subject Matter Jurisdiction? Fed Question 28 U.S.

C 1331
United States Constitution, Article III: Federal Courts Are Courts of Limited Jurisdiction: Federal Question Basics: 28 U.S.C. 1331

Does the claim arise under the constitution, treaties, or laws of the U.S.? (must be a federal question) Justice Holmes: Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ but pleads the federal question?
o

The Federal question must be on the face of the complaint. (Louisville v. Motley (railroad lifetime passes)defense using a federal claim, this anticipatory claim is not enough to be arising under)

Remember, NO $ Amount limit: Can have SMJ over a $1 dispute. Federal Jurisdiction may be exclusive (1338) to federal court (e.g., patent or copyright claims); or Federal Jurisdiction may be concurrent with state court jurisdiction (e.g., civil rights or federal employment liability act (FELA) claims), subject to the right of removal.

Yes

Does the s well pleaded complaint allege Flow Chart Federal Question an express(1338) or implied federal cause of action?

No

Yes

Does the s well pleaded complaint allege a state law cause of action in which federal law is an essential element? No

There is FQJ

Does the federal law that is an element authorize a private right of action? If congress has determined that there is no PROA it is not arising under (Merrell Dow) Dont rely too much on this. I derived this rule from Smith v. Kansas City Title and Merrell Dow v. Thompson. The Yes COA are still split and the SC has not ruled. So, in some circuits this would work but dont treat it as a hard and fast rule.

There is NO FQJ.

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Merrell Dow-A complaint alleging a violation of a federal statute in a state cause of action, when congress has determined that there should be no private, federal, cause of action for the violation does not state a claim arising under the Constitution or Laws of the United States.

Subject Matter Jurisdiction? Diversity 28 U.S.C. 1332

DIVERSITY
OF

CITIZENSHIP BASICS

1) COMPLETENESS: Diversity must be complete. All parties s must be different from all parties s. (Strawbridge v. Curtiss) 2) DATE: Diversity is calculated as of the date the action was instituted. 3) CITIZENSHIP (Domicile) a) PERSONS: Where you were born and continues through your life Mass v Perry, unless: i) You physically change your state; and ii) You have the intention of remaining in the new state for the indefinite future. iii) If person has multiple homes in different states, look of that persons center of gravity to determine citizenship by looking at key facts such as: (1) Where does the person live? (2) Where is the family? (3) Where does the person pay taxes? (4) Where does that person work? (5) Where are the cars licensed? (6) Where does the person vote? b) CORPORATIONS:: Every corporation has two domiciles If multiparty legislation [1332(c)(1)]: i) state of incorporation; and ii) its principle place of business (usually where the corporate headquarters is located). Two tests for principle place of business: (1) Nerve Center Test place where corporate decisions are made; or (2) Muscle (Plurality) Test - Place where the corporation does most of its manufacturing or service providing. c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member. So, a national labor union like the could potentially never pass the federal diversity test if sued by a US citizen in Federal Court because it has members in all 50 states. d) PARTIES IN REPRESENTATIVE ACTIONS (e.g., representative of a child, probate, or derivative actions or class action suits: i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative. ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party. 4) AMOUNT
IN

CONTROVERSY: must be over $75,000, exclusive of interest and costs but inclusive of punitive damages. [ 1332 (a)] -2-

5) AGGREGATION RULES:

Subject Matter Jurisdiction? Supplemental Jurisdiction 28 U.S.C 1367

SUPPLEMENTAL JURISDICTION JUDICIAL INTERPRETATION AND CODIFIED IN 28 U.S.C. 1367

SUPPLEMENTAL JURISDICTION BASICS- U.S.C. 1367(pg 576)

1)

Pendant & Ancillary Jurisdiction: United Mine Workers v. Gibbs state tort claim added to federal employment question. Supreme Court ruled that federal court could assume jurisdiction over state claim because they all emanated from the same set of facts. This ruling, called the pendant doctrine, expanded the definition of case and controversy under Article III. a) Ancillary claims doctrine allowed s to bring a case and allowed s to assert otherwise jurisdictionally insufficient compulsory counter-claims, cross-claims, and 3rd party claims in the Federal Court.

2)

1367: After some restriction to this Owen Equipment v. Kroger (ancillary jurisdiction does not circumvent diversity requirements between parties), Congress codified Gibbs in 1367. a) 1367(a): Court may hear all matters originating from a common nucleus of operative facts are now considered part of the same case or controversy for Article III purposes. b) 1367(b): Codifies Kroger limits reach of jurisdiction only in diversity only cases exercise of jurisdiction must be consistent w/1332 (diversity statute) i) No supplemental jurisdiction; must have independent jurisdiction for claims by against persons Remember, 1367(b) made parties by: (1) Rule 14 (Impleader) Owen Equipment v. Kroger applies ONLY if diversity is the sole basis for being in (2) Rule 19 (Compulsory Joinder of Parties) federal court. (3) Rule 20 (Permissive Joinder of Parties) (4) Rule 24 (Intervention)
c)

1367(c) gives Ct discretion to hear cases (like Gibbs but not clear whether list is illustrative or exhaustive) i) Says that the Ct may decline to exercise j if: (1) Claim raises a novel or complex issue of state law (2) The claim substantially predominates over the claim(s) over which the dc has original jurisdiction (3) The Court has dismissed all claims over which B has original jurisdiction it Proper diversity claim Extending jurisdiction over the state claim AB would (4) In exceptional circumstances other reasons be inconsistent with diversity because A could not have
sued B and the 3P together originally in federal 1367(d) Statute of Limitations will be tolled so long as federal court is hearing the claim, then + 30 court. A 3P involved in a inconsistent with 1332 is ok State claim (does not meet diversity) days to file state claim (unless State allows longer) because the original defendant is in court against his 3P -3will.(Owen Equipment v. Kroger) A FRCP 14(a)

d)

Supplemental Jurisdiction Flowchart FOCUS ON THE CLAIM 18 U.S.C. 1367 In any action in which the Federal Court has original jurisdiction it also has supplemental jurisdiction over any other claims in the action that may form part of the same case or controversy. This includes claims involving the joinder or intervention of additional parties. Supplemental Jurisdiction is limited by 1367(b) in Diversity.

Does the case rise from the same transaction or Yes Is the claim Fed Quest (1331) or Diversity (1332) Diversity Only Claim by or ?

No No SMJ

This is a basic requirement of 1367(a).

Fed. Ques. SM J

1367(b) limitation does NOT APPLY TO FED QUESTION CLAIMS, only to diversity.

SM J

1367(b) limitation does not apply to claims brought by .

Party added under what Rule? 20(), 23 14 19 20 () 24

A counter claim by a Plaintiff is possibly

No SMJ

This is the 1367(b) limitation

TROUBLE !

The literal language of 1367 will allow the claim in (1367(a) lets it in and 1367(b) makes no reference to claims by plaintiffs joined under 20(a). (Exxon Mobil v. Allapattah) says no, the federal court does not have diversity jurisdiction over any claim unless there is complete diversity. Because: if there is one claim in the action satisfies the $75,000 any other plaintiff that is brought as a diverse party is able to ride the coattails of the plaintiff that settles the amt. in controversy limitation. This could create a burden on the court to litigate claims that otherwise should be litigated in state courts. -4-

PERSONAL JURISDICTION
CONSTITUTIONAL BASES:
14 AMENDMENT
TH

Does the quality and the nature of the acts show intent such that it is foreseeable that the defendant can be hailed in to the forum state?
(1)Purposeful availment (2) Purposeful direction (3) Stream of commerce DO THE MINIMUM CONTACTS JUSTIFY JURISDICTION

DUE PROCESS REQUIREMENT

Notice And Opportunity to Be Heard

ARTICLE IV, 1: FULL FAITH & CREDIT CLAUSE

STATUTORY BASIS
State Long Arm Statute (Bensusan v King) Federal Rule 4(k) (2)

MODERN SERVICE RULE 4 (A-E, H, N)

Mullane v. Central Hanover Bank Means best Calculated Under the Circumstances to Give Notice.

Full Faith and Credit Will Be Given in Each State to judgments rendered in other states

TRADITIONAL BASES OF FINDING PERSONAL JURISDICTION Domicile/Citizenship CONSENT EXPRESS: Carnival Cruise Lines (forum selection) IMPLIED: Hess v. Pawloski WAIVER: Insurance Corp of Ireland (no compliance)

Can Restrict Constitutionally allowed Personal

Publication is a supplementary means to give notice when other means are unavailable or impractical Gov. must do more if initial notice has failed (Jones v. Flowers)

Mass v. Perry: Away At College (need to move and have an intention to stay for it to be a new residence) Milliken v. Meyer (even if absent a citizen can be served with process)

PHYSICAL PRESENCE IN STATE Tag Jurisdiction Lives! Burnham v. Superior Court

Ex-Husband Served While Visiting Kids

Tag Juris. Dies if fraudulently induced in to the forum state. (Wyman v Newhouse)
Does not apply to corporations based on an

MODERN BASIS OF PERSONAL JURISDICTION AS MINIMM CONTACTS (QUALITATIVE TEST) Must have sufficient minimum contacts within the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington
Because the courts power to exercise jurisdiction is based on the defendants voluntary relation to the state, the power should be limited to cases arising out of that relation. The contacts that spawn the lawsuit are crucial to the minimum contacts analysis.

SUFFIC I EN T MIN IMUM CON TA C TS

1. Cause of Action: Where did the cause of action arise? (contact with the forum state) 2. Activities: Scrutinize these activities in the forum state: Systematic & Continuous = General J. (Perkins v Benguet (Helicopteros not
enough)
Int. Life)

FAIR PLAY

AND

S U B S T A N T I A L J US T I C E

IS IT REASONABLE TO Exercise JURISDICTION

Burger King v. Rudzewicz (yes) and Asahi Metal v Superior Court (no)

1. 2. 3.

Burden on the Parties: Economic, time,

Sporadic = Specific J (Jurisdiction because COA arises out of contacts

McGee v

Direct vs. Indirect Dangerous activity? 3. (1)Purposeful Availement: Has purposefully availed itself the benefits & protections of forums laws? Hanson v. Denkla (contact was not increased and was the result of unilateral act, so it is not enough to show purposeful activity) 4. (2)Foreseeability/S. of Com.: Could foresee or expect being haled into court? W.W. Volkswagen. (Asahi consistent marketing or direct shipping =
liability for product in forum not subject to unilateral acts of third party. Foreseeability alone b/c of SOC is not enough)

4. 5. 6. 7.

relative burdens. Law: What forums law? Interest of the State: in providing a forum for & protecting its citizens. Asahi (no interest in foreign) Multiplicity of Suits: Will they all be resolved in this single action? Forum: Alternative forum available? As or- 5 more Fair & convenient for the parties? Evidence: Where is the bulk of the evidence? Witnesses: Where are the witnesses?

CHANGING VENUE: Where a case may have been brought Underlying Policies: Judicial Efficiency; Limit Forum Shopping; Convenience of Parties

Transfer of V: 28 U.S.C. 1404 (581)

Policy: should be motivated by CONVENIENCE and JUDICIAL ECOMOMY
Federal Courts NEVER transfer to State Courts. Use FNC in such case. State Courts NEVER transfer to federal Courts or to different States. Use FNC in such case.

Forum Non Conveniens

Public vs. Private Factors - Balancing Test Private Interest Factors 1. Access to sources of proof 2. Ability to compel attendance of witnesses 3. Convenience to voluntary witnesses 4. Difference in substantive law that will be applied in new forum is NOT DECISIVE in dismissing on grounds of FNC, but could be relevant if the law in the alternative forum were completely inadequate. Piper v Aircraft Public Interest Factors 1. Local interest in having disputes resolved locally 2. Court congestion General Rule FNC is tough on s, especially in light of statutes of limitation and Pers. Juris. Courts know this and will not grant FNC unless: 1. There is an alternative forum; 2. waives statute of limitations defense; 3. Consents to conditions and jurisdiction in alternative forum.

1404 Balancing Test

Convenience of parties & witnesses + Interests of justice and convenience of parties must substantially outweigh s interest in choice of forum.
Choice of Law: Diversity Cases Only or supplemental claims attached

Laws of the transferring state apply (including SOL) Ferens v, John Deere (P transfer)->kind of cheap b/c allows forum
shopping a bit (rationale: judicial economy and Defendants would have that law anyway

Van Dusen v Barrack (D transfer)

IF ORIGINAL VENUE WAS IMPROPER: Receiving Court applies its own laws. (28 USC 1406(a))
Venue Exam Tricks Transferring Court can only send a case to a court where the action could have been commenced or initiated. Therefore, the receiving Court must have all 3 (1404(a)), even if the transferring Court doesnt:. 1. Subject Matter Jurisdiction 2. Personal Jurisdiction 3. Venue *(FOCUS HERE; JIMENEZ SAID THAT YOU CAN ASSUME SMJ and PJ.

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 Removal: 28 U.S.C. 1441 (pg585) Defendants as well as Plaintiffs should have the option to choose the federal system for cases within Federal Jurisdiction.
State to Federal ONLY in district embracing the court where the action is pending; 1441(a) 1. ALL s must consent; 2. ORIGINAL s only; no counterclaim s must consent

FEDERAL Court 1. 1441(a)Must have been qualified to grant

original jurisdiction. (amenability of s to

STATE Court

****No Removal for InState Defendants in Diversity-Only Cases*****

2. 1441(b) cannot remove if any defendant

suit)

is a citizen of the forum state if 1332 sole basis. No prejudice. 3. May grant supplemental jurisdiction as long as at least one separate and independent federal claim eligible for removal. 4. If s move for transfer after removal, the laws of the transferor forum apply in
1446; 1. Files a notice of removal with the district court (a) 2. Within 30 days of receiving the pleading (b) 3. At this point the state looses control of the case auto. (d) 4. has 30 days to contest the removal procedure and petition for a remand to state ct. 1447 (c)
REMOVAL PROCEDURE

Federal Question Claims Pass Through Federal Question Filter 28 U.S.C. 1331 (564) Federal Question Flow Chart Does the s well pleaded complaint allege an express (1338) or implied federal cause of action? N o

Non- Federal Question Claims Pass Through Supplemental Jurisdiction Filter 28 U.S.C. 1367 Same Case or Common Nucleus of Meets Supplemental Jurisdiction Requirements under 1367? Yes 1441(a) Court May Exercise or Decline Per Authority Granted under 1367(c) No

Yes

Yes

Does the s well pleaded complaint allege a state law cause of action in which federal law is an essential element?

Does the federal law that is an element authorize a private right of action? Yes There is FQJ

No

Not Part of Same Constitutional Case

There is NO FQJ.

Separate & Independent Claim? 1441(c) FED Court May Keep and resolve all -7issues --OR-Court May Remand all matters where State law predominates

Venue Rules: 28 U.S.C. 1391 (pg 577) EXCEPT AS OTHERWISE PROVIDED BY LAW
Venue is a privilege to the defendant, but defendant waives his right to object to venue if he fails to bring an objection to it when he responds to the complaint (FRCP 12(b), (g), (h)). 1441(a) Also venue can agreed to in advance through a Forum Selection clause (Carnival Cruise lines v. Shute). Usually Federal Courtas longHearis fairly communicated and not unreasonable. enforced Must as it this Case If the venue is inappropriate the court can transfer under 1404 but not dismiss without an objection from the defendant, new forums laws will apply.

Venue in DIVERSITY cases. 1391(a).

Any dist. where any resides, if all s reside in the same state. (DISTRICT NOT STATE) Resides is not the same as domicile; Any dist. Where a substantial part of the controverted events occurred (or were omitted) or where the disputed property is located. Can have venue in multiple locations. Where any is subject to PJ only if no venue available under (1) or (2) above. You still might have trouble finding PJ over another ***At least one must be satisfied***

Venue in ALL OTHER cases. 1391(b).

Same as in diversity cases, above. Same as in diversity cases, above. Where any can be found only if no venue available under (1) or (2) above. Different language, but probably means same thing. ***At least one must be satisfied***

Venue of CORPORATE s 1391(c) CORPORATE it is 1391 (A) or 1391 (B)

This clause defines residence for application of (a) or (b) Any Judicial District that corp. is subject to PJ (min contacts) at the time the action is commenced. (treat districts as independent states) Analyze as if fed govt is separate state.

Venue for ALIENS 28 U.S.C. 1391(d).

Any alien, incl. alien corps., can be sued in any district. -8-

Special Appearance MUST BE MADE IMMEDIATLY

FEDERAL STATE

Challenging Jurisdiction and Objections to Courts THE MOTION TO DISMISS

What May NEVER Be Waived?

12B(1) SMJ Is A Constitutional Issue and Cannot Be Waived. Parties to an Action May NEVER Consent to Waiver of SMJ
(FRCP 12(h)(3))

PROCEDURE VARIES FROM STATE TO STATE Allows appearing before the court to contest its power to assert PJ. If raises an case issue besides Jurisdiction the courts in some states may conclude that she Waived her jurisdictional Objection and began to defend on the merits

WAIVER of DEFENSES under Rule 12 (12G and 12H govern) Rule 12(g) [must include all 12(b) in primary motion or answer IF AVAILIBLE] and 12 (h) [if one 12(b) then you must use all 12(b) govern the consequences of not raising 12 (b) defenses. If not raised in the first response (motion to dismiss or answer) defenses 12(b)2-5 are waived Personal Jurisdiction Venue Insufficient process Insufficient Service of Process *These are all preliminary defects and should be known by at the outset of trial. If a claim under 12(b) is available to them at the time of motion to dismiss or answer. If you dont use it when it is available, you lose it.

12 (b) allows to file a motion before the court to dismiss the case based on a 12(b) defense (avoids immediate answer as 12(a) allows)(can be in answer rather than motion at discretion) Defendant may raise other objections as well w/o submitting to JurisdictionUnlike some States

12(b)(6) (failure to state a valid claim for relief) and 12(b) (7) (failure to join an indispensable party) motions may be filed
at any time until trial ends because the litigation process can change situations allowing these defenses to be brought.

WHAT IS WAIVED IF YOU DO NOT FILE WITH ORIGINAL RULE 12 DEFENSES?

However, if these defects are available when the first 12 defense is used and are not included, 12(g) requires the inclusion of defenses then available. Although 12(h) states that they shall not be completely waived, they can probably only be successfully brought by another motion after pleading or during the trial.- 9 -

ERIE 4 TYPES OF ISSUES

1. Do the laws actually conflict?-->If there is only one law on point then apply that law (can construe a federal rule narrowly to avoid conflict) 2. Look to the source of the federal law to determine what holds:

Federal Constitutional Provision v State Law

(ex: unanimous jury verdict v. majority)

Constitution is supreme Law of the Land (Article IV). If the constitution mandates a practice that is different from state law then that constitutional practice prevails Federal Statutes are the supreme Law of the Land if they are valid. When Federal rules fall between substance and procedure, they will apply unless if they are unable to be rationally classified as procedural (Hanna). This is because congress has the right to enact the statute for procedure in fed courts under Article IV. The Federal rule will apply if it is valid. i.e. if it does not violate the constitution (Hanna v Plumber) or abridge , enlarge, or modify a substantive right as classified in the REA. (28 U.S.C. 2072(b)). Note a SOL is probably a substantive right because the period for allowing recovery seems pretty bound up with the substantive claim itself Under Erie, federal judicial practices are invalid if they purport to establish rules of primary behavior (like the duty to trespassers in Erie) with no constitutional authority. If the practice relates to the conduct of litigation then the court should apply the state rule if it is

(ex: Fed ct. must enforce arbitration agreements v. State courts do not enforce arbitration agreements) FRCP (Rules Enabling Act) v State Law (Service of process requirements (Hanna v. Plumer) Judge made rulesFederal Judicial Practice v. State Law (Procedures as a matter of practice v different procedures)

Federal Statute v. State Law

Erie v. Tompkins The laws of the states (except Federal Laws) shall be regarded as rules of decision in trials at common law in the federal courts where they apply. Guaranty Trust Co. v York The source of substantial rights enforced by a Federal Court under Diversity jurisdiction is the law of the state. (a statute that would completely bar recovery in a suit if brought in state court bears virtually and not merely formally or negligibly) Byrd v. Blue Ridge Must respect the definitions and rights and obligations created by state courts, but state laws cannot alter the essential characteristics and functions of the federal courts (Here: such as the function of a jury deciding factual matters)(using a judge instead of a jury. as the state law provides, is a determination of the form and mode of enforcing immunity, not and essential right)(Federal interest in the constitutional rights is more important than using a judge) Hanna v. PlumerWhere matters fall between substantive and procedural and are capable of classification as either, the Constitution grants the federal court system the power to regulate its procedure. An outcome, by use of federal procedure, must abridge, enlarge, or modify ((28 U.S.C. 2072(b) for Erie to apply. (service of summons and the dismissal of the case for improper - 10 service would not alter the right of Hanna to serve Plumer properly and re-file, nor would it change the basis of the negligence claim) Just because it is outcome determinative as it is here, iot does not mean that it must be followed if it is clearly procedural. (ASK is it related to the ability to file in the first place?)

EERIE In diversity cases federal courts must apply the law that would be applied by the courts of the state in which they sit.

1. THE DISCOURAGEMENT OF FORUM SHOPPING 2. IN LINE WITH THE RULES DECISION ACT (1652) [avoid inequitable admin. Of law] Fed Rule on Point? (look at twin aims of NO Is state law Erie before deciding) Regards a Federal N purely Can you construe the practice that is substantive / common and federal law narrowly uncodified black letter law? to avoid conflict? Byrd v. Blueridge Do BOTH YES Test if it is Judicial Hanna Holding Hanna Dicta Practice (it involves the Between Formal Fed Rule and Whether a federal procedure is outcome interaction between the state practice YES determinative must be viewed in light of Apply Fed Rule if its valid. judge, jury and appellate the underlying policies of Erie. If the Valid if: court.) difference between state and federal Reasonable person would consider Is state rule bound up with rules are small, then using federal laws it procedural. judicial process for (implementing of) state State law applies would not be wrong. enforcing rights and duties of created rights& obligations? (f/ Erie & RDA) substantive law 28 USC 2072(a) (this supports state law 1. Would FRCP promote Forum + usage) Primary right the Fed Shopping? Does not abridge , enlarge, or Ct. Must follow or N Y Does it regulate primary modify a substantive right as predict what States behavior? (in Byrd trial by jury classified in the REA. (28 U.S.C. Use State Use Fed court would do 2072(b)) with respect to fact) Law law -or No/speculative Y certify the question Rule of form & mode. BALANCE Use State Problems from Swift v. Tyson (Justice Storys Usually still STATE LAW law

Under Erie, courts sitting in diversity apply state substantive law and Fed procedural law. Under Hanah v Plumer, the outcome determinative test reposed by Guaranty bank and trust should not be followed mechanistically, but should be guided by the twin aims of eerie.

interpretation of the Rules Enabling Act)

Before Erie, a person or business could move or reincorporate in order to invoke diversity jurisdiction and thus choose the substantive law that was more favorable to them. Created Prejudice to the out of Stater. Swift also created a false sense that there is a transcendental body of law that is not a reality. Law is more simply a set of rules enacted by those that have the power to do so to govern behavior in a certain place at a given time. These places and times were

Fed. Countervailing Interests (for fed law) (always have uniformity, but weak on its own. Byrd was judge/jury relationship which outweighed outcome determinacy)

Outcome determinative test (for state law) If outcome would be different depending on which law applies probably use state law. (statute of limitations is very
determinative if its run in state and not fed)

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JOINDER
POLICY: Allowing Joinder of parties allows a number of claims that involve a single T&O and the same issues will be litigated in each claim it is in the interest of economy to litigate all the issues once rather than separately and will also avoid the possibility of inconsistent judgment.

JOINDER OF CLAIMS by

(FRCP 18a)

1. In federal practice a can join any claims he or she has against the .regardless of T&O. a. This rule extends to any claim/ counterclaim/ cross claim. Language is pleader 2. In a state following the FRCP, a can join any claims he or she has against the because those are the

Federal Rules. 3. If state X follows the more traditional rule of demanding a transactional relationship, use fact analysis to
Permissive Joinder of PARTIES: 2 Prong Test Plaintiffs joining together=FRCP 20(a)(1) Plaintiffs Joining Defendants together= FRCP 20(a)(2) Trans. & Occurrence + Common Question of law or fact = Permissive Party Joinder 1. Claims or defenses stem from the same transaction; AND 2. There is a common question of law or fact binding the parties. Compulsory Joinder of Parties

Rule 19(a)
1. Who is necessary and should be joined if possible? a. Will parties be injured by failure to join outsider? b. Will outsiders be prejudiced by result? (lose ability to protect interest, leave a party open to multiple obligations) Exam Tip: Probably only situation in which outsider is not compulsory is tort action. Joint tortfeasors are NOT compulsory; may only want or need to sue the rich . (Temple v. Synthes Corp.) 2. Can you join the outsider? If not, why not? Exam Tip: look out! Reason could be SMJ and/or PJ. If so, be ready to perform the entire analysis. 3. I cant join this guy; what do I do now? a. Rule 12(b)(7) dismissal for failure to join and indispensable party; OR b. Rule 19(b) Court can grant discretionary relief and probably will to avoid dismissal or dismiss the case based on: 1. If persons absence would prejudice that person or existing parties 2. Could any prejudice be avoided or lessened (shape the relief, or other measures) - 12 3. Would the judgment be adequate in their absence 4. Would te plaintiff have an adequate remedy if the action were dismissed for non-joinder

FRCP

Must satisfy both FRCP and SMJ and PJ

Joinder by
AND

Joinder- Big Picture

Subject Matter Jx
1331- Federal Questions 1332- Diversity and $ Amount 1367Supplemental Jx

Joinder by
Parties 20 (a) 20(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences and if any common question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences and if any common question of law or fact common to all these persons will 20(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the Claims 18 (a) Can join any other claim with a valid claim Claims 13 (a, b, g)

Parties 14, 19

Or

(a) Compulsory 14(a) When Defendant May Bring in Counterclaims - A Third Party. At any time after pleading shall state commencement of the action a as a counterclaim defending party, as a third-party A party asserting a any claim it has plaintiff, may cause a summons and claim to relief as an against any complaint to be served upon a person original claim, opposing party, if it not a party to the action who is or may counterclaim, arises out of the cross-claim, or transaction or be liable to the third-party plaintiff for third-party claim, occurrence that is 14(b) When Plaintiff May Bring in Third may join, as many the subject matter Party. When a counterclaim is asserted claims as the party of the opposing against a plaintiff, the plaintiff may party's claim and cause a third party to be brought in does not require for under circumstances which under this its adjudication the presence of third rule would entitle a defendant to do so. parties of whom the (b) Permissive 19(a) Persons to be Joined if Feasible. A person who is Counterclaims. A subject to service of process and whose joinder will not pleading may state deprive the court of jurisdiction over the subject matter of as a counterclaim the action shall be joined as a party in the action if any claim against an opposing party not (1) in the person's absence complete relief cannot be arising out of the accorded among those already parties, or transaction or (2) the person claims an interest relating to the subject of occurrence that is the action and is so situated that the disposition of the the subject matter of

$75,000.01 minimum & COMPLETE Diversity Amount claimed in good faith is relevant, not amount the court awards, UNLESS to a legal certainty cannot recover $75k. Claim must exceed 75,000 not actual award. Diversity must exist at the time the complaint is filed with the clerk. It need not exist at the time of trial or when the cause of action arose A plaintiff can often cure the lack of diversity problem by dismissing non-diverse

Where DC has original Jx, they shall have supp. Jx over all other claims that are related to the original claim when they are part of the same claim or EXCEPT- when they original claim arises SOLELY under 1332 the DC WILL NOT have Jx over claims made by s against persons under RULE 14, The DC may also decline supp. Jx if: 1) A novel or complex state law issue 2) Claim dominates the claim which original Jx was based. 3) Dc has dismissed claims under DCs original

(g) Cross-claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any

action in the person's absence may : (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a 19(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1) - (2) hereof cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as a person required to be joined if feasible.

19(b) non exhaustive list of factors to be considered in to allowing a suit to continue based on a failure to join an indispensable party under 19(a):

Original Claim Counter Claim Cross Claim 3rd party Claim Claim by 3rd P

3rd Part y

First, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; Second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; Third, whether a judgment rendered in the person's

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Counterclaims, Crossclaims, and 3rd Party Claims (Impleader) Counterclaims 1. Compulsory: FRCP 13(a); use it or lose it.. A counter claim is compulsory if it arises out of the same transaction or occurrence that is the subject matter of the s claim (counterclaim must be pleaded) POLICY: efficiency and economy 2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same transaction: (from Plant v. Blazer Financial Services) State Courts will usually respect Rule 13(a); but it is not guaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will probably not allow a new suit on the same facts. a. Are the issues of fact and law raised by the claim and counterclaim largely the same? b. Would res judicata bar a subsequent suit on s claim absent the compulsory counterclaim rule? c. Will substantially the same evidence support or refute s claim as well as s counterclaim? d. Is there any logical relation between the claim and the counterclaim? 3. Permissive: Rule 13(b); everything else. (NOTE: Court will probably order a separate trial for an unrelated claim FRCP 42(b)) 4. Exam Tip: Rule 13 pretty much allows a to counterclaim against a for anything he wants. Remember the title plaintiff doesnt mean squat in Tort law; it just means you filed first. 5. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no diversity), invoke 1367 Supplemental Jurisdiction and be sure to use the buzzwords: a. Common Nucleus of Facts Cross-Claims Rule 13(g) ( vs. ) 1. Always Permissive, but must rise out of the same T&O if is to be used. 2. Can invoke 1367 if claim wont stand alone, but Ct. must have SMJ (probably a safe bet with 1367 b.c 1367(b) wont apply) 3. Exam Tip: When in doubt, examine Transaction & Occurrence; its pretty much the basis of everything in CivPro, so if youre blanking out, start writing about T&O. If a cross claim is made then the TP must file a counter claim (13a) if it is from the same T&O or loose it. 3rd Party Claims (Impleader) Rule 14(a) (Defending party may implead anyone that may be liable to them for all or part of the claim) 1. Adding New Parties: Theoretically, an infinite number of parties may be added to the action. a. Added parties can can defend both the derivative 3rd party claim and the original claim. 14(a)(1)(c)+(d). 2. Exam Tip: Remember that every party added means you must establish personal jurisdiction (and SMJ if it is not 1367) over all these parties. Big exam points here. 3. Can invoke 1367 if claim wont stand alone and is from same T&O. a. Impleading a third party defendant does not affect the courts jurisdiction over the original claim b. Third party defendant is disregarded in determining whether venue is proper 4. 3rd party s counterclaiming back will probably be compulsory because [permissive counterclaims are usually transactionally related and therefore NOT subject to supplemental jurisdiction.] 5. Rule 14(a) Amendment: original may amend complaint to directly assert claim against newly impleaded 3rd party . 6. Kroger Rule: Original cannot assert supplemental 1367 claim (but can if there is complete diversity and amt. is met)against parties brought under Rule 14 (third party practice); Rule 19 & 20 (Basic Joinder Rules); and Rule 24 (Intervention). It does NOT say anything about Rule 13 (counterclaim and cross-claim). - 14 7. Draw a picture; its the only way to figure this crap out. Plaintiff can add un unrelated claim under (18a) as long as they first

JOINDER DIAGRAMS

Rule 13(a) Compulsory Counterclaim

Rule 13(b) Permissive Counterclaim Negligence or Tort Permissive Counterclaim for Negligence or Tort

Negligence or Tort Compulsory Counterclaim for Negligence or

A counter claim is compulsory if it arises out of the same transaction or occurrence and does not require adding a party the court cannot obtain jurisdiction over that is the subject matter of the s claim (counterclaim must be pleaded) 4 Part Test to define when a claim or counterclaim arises from the same transaction: 1) Are the issues of fact and law raised by the claim and counterclaim largely the same? 2) Would res judicata bar a subsequent suit on s claim absent the compulsory counterclaim rule? 3) Will substantially the same evidence support or refute s claim as well as s counterclaim?

Rule 13(g) Crossclaims Negligence or Tort Negligence or Tort Crossclaim for Product Liability Existing Co- (Party to Original Action)

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JOINDER DIAGRAMS

Rule 13(h) Joinder of Additional Parties to Crossclaims or Counterclaims S1 Adding Third Party Defendant Rule 14(a) Negligence or Tort Negligence or Tort Crossclaim Negligence or Tort (3rd Party )

Existing Co- (Party to Original Action) Joinder of Additional Parties (Not In Original Action)

Contribution or Indemnity Claim

3rd Party

In this example, an original crossclaims against another original AND joins a 3rd party as well.

3rd Party (Newly Joined)

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JOINDER DIAGRAMS
Rule 14(a) S6 TPD Can Assert Claim Against (3 Party )
rd

Rule 14(a) S7 Can Assert Claim Against TPD (3 Party )

rd

Negligence or Tort

Negligence or Tort

Requires same Transaction or Occurrence as s claim against 3rd Party

Counterclaim 3rd Party / Requires same Transaction or Occurrence as s claim against 3rd Party 3rd Party

TP MUST assert all defenses available under Rule 12 and counterclaims and crossclaims under Rule 13.

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Cr o ss cl ai m

Contr ibutio n or Inde mnity Claim

JOINDER DIAGRAMS

Rule 14(a) S9 TPD Joining Another Third Party Defendant

Rule 18(a) Joinder of Claims Negligence or Tort Breach of Contract

Negligence or Tort

(3rd Party )

Contribution or Indemnity Claim

3rd Party Contribution or Indemnity Claim

3rd Party

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JOINDER OF PARTIES DIAGRAMS

Rule 20(a) S1 Joinder of Parties - s

Rule 20(a) S2 Joinder of Parties s

Negligence or Tort Negligence or Tort

Negligence or Tort Negligence or Tort

Co -

Co-

Permissive Joinder of Parties: 2 Prong Test 1 at most on exam. TO + CQ = Permissive Party Joinder Claims or defenses stem from the same transaction; AND There is a common question of law or fact binding the parties.

Permissive Joinder of Parties: 2 Prong Test 1 at most on exam. TO + CQ = Permissive Party Joinder Claims or defenses stem from the same transaction; AND There is a common question of law or fact binding the parties.

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Interpleader Rule 22 -or- 28 U.S.C. 1335You all figure out who I need to pay if I am liable (which I may not be)
Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) the ownership of which is or may be claimed by more than one party. It is a device to resolve at one time the claims of many persons to one piece of property or sum of money, such as a bank account claimed by more than one person. Policy Objective: So that the stakeholder will not have to pay the same claim twice. Practical Application: Interpleader is a s tool to join all claimants at once; but may be employed by a through use of cross-claim [Rule Issue Subject Matter Jurisdiction - Diversity 28 U.S.C. 1335 Minimal diversity (28 USC 1335(a)); determined between claimants. (At least 2 claimants must be citizens of a different state) $500 in controversy Nationwide service of process (28 USC 2361) Rule 22 Complete diversity; stakeholder on one side and claimants on the other $75,000+ Need personal Jurisdiction; service under Rule 4 personal jurisdiction is available to approximately the same extent as it would be in the state courts of the state where the Fed court is sitting. * Remember, you need PJ over all the claimants in order for Rule 22 interpleader to work! District where of any claimants resides (if all from one state) 28 USC 1391(a)(1); District where dispute arose; district where property is 28 USC 1391(a)(2); District where any claimant found if no other basis for venue 28 USC 1391(a)(3) Federal court can issue an injunction essentially comparable to the one is statutory interpleader. That authoritys only basis is a provision in 28 USC 2283 for stay where necessary in aid of . . . jurisdiction. Basically excludes interpleader suits from the acts prohibition against injunctions. Deposit controverted property with the Court.

- Amount Personal Jurisdiction and Service of process Venue

Venue is available in any judicial district in which one or more claimants resides (28 USC 1397)

Injunctions

How to Invoke: stakeholder invokes and is called

A federal court may enjoin claimants from instituting or prosecuting any suit in federal or state court that would affect the interpleader proceeding (28 USC 2361) Post a bond with the Court to cover value of controverted property.

- 20 Remember, you need PJ over all the claimants in order for Rule

State Farm Fire and Casualty Co. v. Tashire Example of what interpleader is not.

Rule: Where a stakeholder commences a federal interpleader action to consolidate in one court and in one action, all claims against the fund interpleaded by non-residents, the courts jurisdiction over those non-resident claims is limited to the interpleaded fund. Intervention Rule 24 I wasnt invited, but I am coming anyway

Rule 24(a): Intervention of Right Automatic, uncontestable right if: 1. Unconditional Right Granted by Federal Statute; OR 2. Applicant has interest in transaction or property + disposition will impair his interest - no existing party can adequately represent his interest Rule 24(b): Permissive Intervention At discretion of Court if: 1. Conditional Right Granted by Statute; OR 2. Common Question of Law or Fact; OR Remember, you need PJ over all the claimants in order for 3. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope of Rule 22 interpleader to work! protective orders and confidentiality agreements. Example: Environmental Lawyers intervene to contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader pattern of abuse Rule 24(b): Limited Purpose Intervention Judicial Expansion of Rule 24(b): 1. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope of protective orders and confidentiality agreements. 2. Example: Environmental lawyers intervene to contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader pattern of abuse, suppression of which arguably would be contrary to public policy.

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Intervention Flowchart Step 1: STATUTORY ANALYSIS Does a Federal Statute grant unconditional right of intervention? Yes

MUST Grant This is Rule 24(a).

Does a Federal Statute grant conditional right of intervention?

Yes

MAY Grant This is Rule 24(b) Court will consider delay or prejudice to original parties.

Step 2: CANT SOMEONE ELSE DO IT? Is there a party to the case who will adequately represent the applicants legitimate interest in the controverted matter? (Can an existing party cover your ass? )

Yes

MUST Grant This is Rule 24(a).

Step 3: CONSIDERATIONS OF JUDICIAL EFFICIENCY AND PUBLIC POLICY.

Is there: A common question of law or fact? - or A limited purpose that would serve public policy?

Yes

MAY Grant This is Rule 24(b) Court will consider delay or prejudice to original parties.

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Class Actions Rule 23:

We Were All Screwed Over!

23(A) CLASS PREREQUISITES (CEN C TAB)

1. 2. 3. 4.

JURISDICTION
Federal Question: Normal Rule Applies Diversity: Class action is a representative action. Diversity is based on the representative. Just make sure you pick a from another state. Amount in Controversy cannot be aggregated. If its classified as a 23(b)(2) injunctive claim, you would value the injunction and that could get you over the $75k Or you could file it in state court. But in a 23(b)(3) case youd have a big problem if your individual claims were not each over the $75k requirement. Personal Jurisdiction: Not the Shoe, Denkla, VW test. Focuses mostly on notice. For 23(b)(3) damages case, requires: Adequate representative Notice Right to opt out. Not required for 23(b)(1) or (2) cases.

CLASS: is roughly definable and is a member; ECONOMY: Judicial Economy is Served; NUMEROUS: Potential s too numerous for joinder; COMMON LEGAL THEORY: Claims have a Common legal
theory or arise out of the same transaction or occurrence;

5. 6.

TYPICAL: Claim of named must be Typical of the

class;

ADEQUACY OF REPRESENTATION: Named parties must

Adequately represent the class; 7. B RULE 23(B): Action must fall within one of three categories of Fed Rule 23(b) Identifiable Class Named s (or s) are members of the class Numerosity Commonality

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REQUIREMENTS
1. 2. 3. 4. Final Judgment Judgment on the merits Same claim (T&O) Same Parties

IV: RES JUDICATA

Affirmative defense that may be plead for Res Judicata Affirmative defense Rule 8(c)

Mutuality of Estoppel (Who or which parties are subject to claim or issue Policy Objective Practical Application preclusion? Avoid inconsistent decisions or In a limited fund case; if suits brought impairment of interests of class individually, first takes it all. Class Action protects other s. members. Avoid harm to s and Res Judicata Basics absentees. 1. Definition: RJ means you cannot re-litigate a Protect that you previouslynumbers of couldrights cases. matter rights where large litigated or Civil have litigated. 23(b) Limited to Injunctive or Declaratory 2. Merger & Bar: The controverted matter (cause of action) affected. poker chip, you only get two choices: bet it or dont (2) persons are is like a Relief bet it. You cant break it in half and play part now and part later. Additional theories that could have been plead but No $ damages werent (compulsory counterclaim) are merged into the first judgment and further litigation is barred by RJ. The cause of Class members may NOT opt out action is merged with the judgment, your right to sue is no longer from the occurrence, but rather is now a right to sue on 23(b) judgment. Class action for everyone who was Judicial efficiency the $ Monetary Damages (3) Claim for Relief is The Key: So, available claim for relief (cause individual s it litigation to preserve a right or to can of overcharged 10 cents on every Must be superior to other whats the Allows relief where of action)? Is 3. tuna they bought But the methods Courts have held both ways and a minority of jurisdictions still use the right-wrong test.at Ralphs. No one could not economically pursue remedy a wrong? would sue individually. But from action exam, focus on transaction & occurrence. If the claim arisesas a class Must present common questions of majority position is to focus on the transaction. On the it would make sense and Ralphs law or fact. (Predominance of covered by RJ. the same transaction or occurrence, its probablyCould be only effective method of would have to dozen common question) a toaster that exploded and killed her pet iguana, shes probably got half areact. theories of deterring behavior of some s a. Example: bought recoverycost of tort and contract law (strict liability, warranty, breach, etc.). But all those actions arise from the bears under notice to all class (many small violations). members. same occurrence the toaster explosion. Most Courts would rule this a single cause-of-action for RJ purposes. Notice must inform members may 4. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand its central opt-out. importance to the concept of res judicata. If you do not include claims that could not be included in the original suit (like an exclusive FED claim in state claim), the new claim will probably not be barred. Also if a impleaded defendant (FRCP 14) has a claim against an original plaintiff they need not use it unless they become opposing parties. Res Judicata (Claim Preclusion) Class Defined 23(b) Mass version of Rule 19 joinder. (1) Class members may NOT opt out and are BOUND by the holding. 5. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage multiple litigation (judicial efficiency) and also allow amendments and appeals. But Courts will interpret claims narrowly if they are concerned about the potential harshness of preclusion and the burden on a meritorious . 1. Same claim (T&O) A party asserting a right to relief arising out of a particular transaction must join all claims she has arising from it. 2. Same Parties A plaintiffs rights to recover from separate defendants are considered distinct claims under a RJC analysis. 3. Final Judgment (look at your flow chart) 4. Judgment on the merits (look at your flow chart) Claims that are based on Another Parties AppealYou can appeal issues at trial but cannot benefit from another parties appeal or re-litigate. - 24 Issues are not open to collateral attack (Federated Department stores v. Moitie) Dismissal for SOLbarrs refilling in the same court, but is not on the merits and allows a to bring his claim

23(B) TYPES

OF

CLASSES

RES JUDICATA (CLAIM PRECLUSION) FLOWCHART

Do the issues in the current case stem from the same transaction or occurrence as a previously litigated case? Yes Was there a final judgment in the previous case? (Final means all steps in the adjudication except execution & appeal. (Some cts allow res judicata to take effect after trial Yes Was it considered on the merits? Yes 12(b)(6) failure to state a valid claim for relief (Moitie) o You could amend so if you still cant get it right you lose (SPLIT) o Maybe allow because little litigation effort expended Litigated and judgment rendered No No: Decided on Jurisdiction Venue Joinder of an Indispensable Party SOL (barrs refilling in same

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Yes Was it valid? Proper court with subject matter and personal jurisdiction? 1738 Full Faith & Credit valid state court Yes Does 2nd Action Involve Same Parties or Those In Privity? (Privity requires a legal relationship between the Yes CLAIM PRECLUSIONRes Judicata applies Collateral Entire claim is precluded, including matters that were Estoppel or should have been litigated. (Issue Preclusion) NO CLAIM PRECLUSION NIL RJ wont apply if the matter hasnt Issue Necessary to decided been finally and validlythe first by a action? proper Court! Identical Issues? No No

Collateral Estoppel Basics 1. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. If RJ is a meat cleaver, lopping off the entire claim, CE is a scalpel, severing only the issues previously adjudicated. There are 3 requirements for CE: a. Same Issue a that was Actually Litigated b. The party against which the estoppel claim is being pursued was a member to the previous suit or was in privity (proprietary interest or in control of prior litigation) with that party. c. Necessarily Decided on the merits (This is important. The issue may previously have been decided but was not necessary to resolution of that case.

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2. Example: Driver A hits Driver B, sues B for negligence, and wins. Assume that there was no compulsory counterclaim rule, so B never counterclaimed against A. Now Driver B wants to sue Driver A for his injuries. a. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence, claims are specific to the , so that single accident gave rise to valid claims for both A and B. b. But B will be estopped from asserting a claim of negligence against A. This is because A actually litigated and necessarily determined that B was the negligent driver in the accident. For purposes of the exam, dont worry about comparative negligence claims. c. But, what if the verdict in the first trial came in as comparative negligence, both drivers negligent, no damages are awarded because they were equally negligent? So the jury sends B home a free man. Now he decides to sue A. The fact that the jury found B negligent in the first case was NOT necessary to their finding that A was negligent, so B is NOT estopped from suing A. i. Appeal: One way to check your answer is to look at whether the in action #2 could have appealed the verdict in case #1. Here, B won the first case (he did not have to pay A), so there was nothing for him to appeal. So his issue was not necessarily decided. 3. Context is the Key: With RJ the claims were the same so context did not matter. But with CE, the context of the litigation could re-define the claim. POLICY: Collateral estoppel is needed because issues already litigated may come up again in subsequent litigation based on separate events. 1. 2. 3. 4. Issue must be the same in the first case as in the second The issue was actually litigated The issue was decided The decision of the issue in the prior judgment was necessary to the courts judgment

DISCOVERY RULES: FRCP 26-37 govern discovery in all civil actions Defined: Discovery is the legal process for compelling the disclosure of information relevant to disputed factual issues in litigation. Generally without judicial supervision, however, sometimes there can be motions to compel, sanctions, or protective orders. Policy Objectives: Cost-Shifting cost shifting may effectively end discovery, especially where large corporations are concerned and may end meritorious claims (especially in discrimination or retaliatory suits. The sample size approach in Zubulake v. UBS Warburg LLC may alleviate some of these concerns. Legitimate Practical Application: (1)Allows more accurate determination of cases litigated on the merits (2) Promotes settlements by increasing the parties respective appraisals of their cases (3) make available information allowing some or part of the case to be disposed of (summary judgment) - 27 -

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Rule FRCP 26

26(b)(1): Specifies that parties may obtain discovery regarding any matter, not privileged that is relevant to the claim or defense 26 (b)(2): Imposes general limitations on the scope of discovery in a proportionality test i. The discovery sought is unreasonably distrutptive or could be obtained froma better source (less expensive, burdensome or more convenient ii. The party seeking discovery has had ample opportunity to obtain the information sought iii. The burden or expense of the proposed discovery outweighs its benefits. (taking in to account the needs of the case, the amt. in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues 26 (c): allows the party that is responding to a discovery request to invoke the district courts protecting by asking for orders to protect them from undue burden or expense this usually results in the court issuing orders that condition discovery on the requesting parties payment of the costs of that discovery. 34: Motion to Compel: A Party may request discovery of any document. Very inclusive list that includes changing technologies (and therefore electronic documents) 37: Allows Sanctions:

FRCP 34 FRCP 37

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Zubulake v. UBS Warburg LLC

ROL: To determine cost-shifting for discovery of electronically stored information, a court must balance the likelihood of discovering critical information and the total cost of production against the amount in controversy, the importance of the issue at stake, and the resources available to each party. This case got rid of the ROWE factors (Course book page 894)]. Claiming that they should not be equally weighted and that relativitly is important. New seven factor test should be used to determine cost shifiting with the factors not being equal.

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