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I.

Subject Matter Jurisdiction

a. General SMJ Jurisdiction Rules
i. Burden of proof is on party claiming SMJ
ii. Subject Matter Jurisdiction Cannot Be Waived
a. Capron v. Barton Even Plaintiff can challenge SMJ
b. Courts must raise the issue of the parties do not
c. Capron creates an incentive for people to address SMJ early on
d. Can raise SMJ on appeal, but generally not by collateral attack
iii. You cannot trick someone into SMJmust have proper service
a. Tickle v Barton Cannot use deceptive measures to entice someone into state to serve notice
iv. Res Judicata Final judgment on the merits of a case is conclusive. Once a case has been decided, decision stands (Fetter v. Beale)
a. Three elements :
1. Earlier decision on case
2. Final judgment on the merits
3. Same parties
v. Res Judicata v. SMJ (Des Moines Navigation)
a. Facts - Case originally brought into Iowa court and then removed and decided on by the Supreme court. P attempted to retry the case
in state court on the grounds that the federal court lacked SMJ
b. Rules
1. You cant collaterally attack SMJ
2. When there is a final judgment on the merits (after appeals process ends), case is over
3. Supreme court is of limited but not inferior jurisdiction Once the appeals process in one court is over, it cannot be
appealed anymore
4. Jurisdictional questions are within the federal jurisdiction to decide.
c. In battle between the twoRes Judicata wins
d. Even cases that have been decided without proper jurisdiction have res judicata value (if that lack of jurisdiction was never
appealed), at least until they are judicially annulled, vacated, or set aside
e. Distinguish between Capron
1. Raised in a new case (in Capron, was on appeal)
2. Cant collaterally attackSupreme court of limited, but not inferior jurisdiction a
b. Subject Matter Jurisdiction in State Courts
i. Usually at least one state court in each state has SJM; contrast to limited jurisdiction of federal courts
ii. With few exceptions, states have concurrent jurisdiction with federal courts over cases arising under federal law
a. Patents, bankruptcy says federal courts have exclusive jurisdiction
b. Comes from Supremacy Clause - State courts are bound by Constitution so, issues of federal law can be heard in state courts
iii. Usually state statutes set SMJ boundaries. Boundaries are often based on:
a. Amount in controversy
b. Type of case (e.g. domestic relations)
c. Original v. Appellate jurisdiction
iv. Full Faith and Credit Clause - full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of
every other state (Can't discriminate against laws of other states, or federal law)
c. Federal Judicial Power
i. US Constitution, Article III, Section 2
a. The judicial Power shall extend:
1. to all Cases in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority;
2. to all Cases affecting Ambassadors, other public Ministers and Consuls
3. to all Cases of admiralty and maritime Jurisdiction;
4. to Controversies to which the United States shall be a Party;
5. to Controversies between two or more States;
6. [to Controversies] between a State and Citizens of another State;
7. [to Controversies] between Citizens of different States
8. [to Controversies] between Citizens of the same State claiming Lands under Grants of different States, and
9. [to Controversies] between a State, or the Citizens thereof, and foreign States, Citizens or Subjects
ii. Statutes (Diversity Jurisdiction 28 USC 1332)
iii. Congressional Power to Create Courts (US Constitution, Article III, Section 1)
d. Diversity Jurisdiction
i. Congress enacted 28 U.S.C. 1332 statute establishing diversity SMJ for district courts
a. requires diversity of citizenship
b. requires amount in controversy exceeding $75,000
c. Congress may exercise power up to the Constitutional limits, but may choose to narrow down authority

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ii. Arguments for Diversity Jurisdiction
a. Prejudice against out-of-state parties
b. Federal courts are appointed (most state judges are elected)
c. Federal judges have lifetime tenure (only way to get off bench is resign/retire)
d. Federal juries are selected from a wider area
e. Federal judges may be less locally oriented---think of themselves more of federalnot state
f. Federal judges may be better qualifiedas a group
g. Out of state investors may believe i.-iii. Are true
h. Even if 1-3 aren't true, if people think there is less bias
i. Encourages state and federal courts to compete in quality and copy procedural improvements
iii. Arguments Against Diversity Jurisdiction
a. Crowds federal courts ( about 20% of federal caseload)
b. Erie Doctrine means fed courts are applying state law to substantive issues anyway; state courts can do this better
c. Interferes with state autonomy
d. Retards development of state law
e. Diminishes pressure for state court reform by influential pressure groups
f. Allows some litigants to use federal courts just because of luck.
iv. Proposals for Changing Diversity Jurisdiction
a. Eliminate it
b. Increase amount in controversy requirement
c. Exclude non-economic damages, including punitive damages from the amount in controversy calculation
d. Prohibit plaintiffs from invoking diversity jurisdiction in their home states
e. Consider corporations to be citizens of every state in which they are licensed to do business
v. Why Plaintiff May Prefer Federal Court
a. Procedural rules may be more liberal (especially discovery)
b. Federal court may be more conveniently located
c. Some think federal judges have more experience
d. Some think federal juries are less biased
e. Less time until trial (sometimes)
vi. General Rules
a. Complete Diversity (Strawbridge)
1. Strawbridge v. Curtis (1806)

i. There is no diversity jurisdiction if any plaintiff and defendant are citizens of the same state
Party asserting diversity jurisdiction has burden of showing it exits
No plaintiff can have the same citizenship of any defendant (Mas v. Perry)
Diversity Citizenship determined at time complaint is filed.
You can only be a citizen of one state
Constitution requires at least one person to be a citizen of the US
Determining Citizenship, Natural Persons
a. For diversity purposes, citizenship means domicile; (Mas v. Perry)
1. Mere residence in the State is not sufficient
2. A person's domicile is the "place of his true fixed, and permanent home and principal establishment, and to which he has
the intention of returning whenever absence
3. To change domicile, must 1) take up residence in a different state with 2) intention to remain there
i. Must have intent to remain (going to school doesnt change citizenship for diversity)
ii. Means that you cant change citizenship for diversity purposes
Common evidence of citizenship
a. Current residence
b. Voter registration
c. Auto registration
d. Location of personal or real property or other economic interests
e. Location of bank accounts
f. Place of employment
g. Participation in civic affairs
h. Membership in churches
i. Personal declaration of domicile (sometimes)
Determining Citizenship, Corporations
a. Corporations shall be deemed citizen by any state by which it has been incorporate and of the State where it has its principal place of
business
b. Corporate principal place of business 3 possible tests:
1. nerve center (where are decisions made/control),
2. corporate activates (where are production/service centers),
b.
c.
d.
e.
f.

vii.

viii.

ix.

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3. total activity (weighs the two).
Unincorporated associations are citizens of every state in which one of their members is a citizen
Alienage Jurisdiction
i. 28 USC S 1332
a. The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between
1. citizens of different States;
2. citizens of a State and citizens or subjects of a foreign state;
3. citizens of different States and in which citizens or subjects of a foreign state are additional parties.
b. For the purposes of this section, . . . and section 1441, an alien admitted to the United States for permanent residence shall be
deemed a citizen of the State in which such alien is domiciled.
c.

e.

f.

PFrench

v. DGerman

No

No US citizen

PVA

v. DGerman

Yes

Citizens of a state and citizens of a foreign state

PVA

v. DNY + DGerman

Yes

Citizens of different states and in which citizens or subjects of a foreign state

are additional parties

PVA

v. DVA +
DGerman

Pfrench

v. DNY +
DGerman

Maybe

Courts splitmore no's than yes; no explanation b/c suits not between citizens
of different stateno Americans on both sides

PVA +
Pfrench

v. DNY + DFrench

Yes

Citizens of different states and in which citizens or subjects of a foreign state

are additional parties

No

Can't have citizens of same state on either side; also violates complete diversity

Abuse of Diversity - Cant intentionally join parties to create jurisdiction

i. 28 U.S.C. 1359
a. A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or
collusively made or joined to invoke the jurisdiction of such court.
1. Kramer v. Caribbean Mills, Inc., 394 U.S. 823
i. In this case, a Panamanian corporation assigned interest under contract with a Haitian corporation to Kramer, a
Texas attorney; Kramer then assigned any net recover on the assigned cause of action to the Panamanian company;
Kramer then filed suit with Haitian company
b. Facts Indicating Improper Assignment
1. Assignee only a nominal party; assignor retains an actual, substantial interest in the suit
2. Assignee does not possess an independent interest or right of action that existed prior to the assignment
3. Assignor solicited the assignee to bring suit, contributed to litigation expenses, or controlled litigation conduct
4. Short time between assignment and filing of suit
ii. For diversity purposes, nominal parties dont count (Rose)
a. Federal courts must disregard nominal parties to the actions and determine jurisdiction based solely upon the citizenship of the real
parties to the controversy (Rose)
1. A real party is one who, by substantive law, has the duty sought to be enforced or enjoined
2. Real party must have control over the litigation or financial stake in the outcome the Reds might lose Rose, which
would of course have a financial impact, but they would not be assessed damages in this suit
g. Amount in Controversy
i. 28 USC 1332
ii. Amt. in controversy must be over $75,000 (Generally no amount requirement for federal question cases)
iii. Interest counts only if part of underlying claim
a. If lending 70,000 for 80,000 in a few years, then interest counts
b. Attorney's fees don't count (normally) - Only if statute allows for it and if contract allows it
iv. Courts differ in valuing injunctions
a. Most go with what plaintiff alleging
b. Others say whichever is filing
v. Post-filing events are generally irrelevant
vi. If you lose the case for less, doesn't change
vii. IF complaint has 2 claimsfor more than requirement
a. If there is a motion for summary judgment dismissing one of the claims, then still have SMJ because it happens after the filing
viii. Often, not difficult to evade amount in controversy requirement
a. Exceptions
1. Arnold v. Traccoli (amt requested must be in good faith)
i. Liquidated damages
1. Some contracts put in fixed amounts

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2.
3.

ix.

Courts generally enforcement

If you file asking for moreas a matter of legal certainty you can't recover more because limited to 50,000
in contract
ii. Punitive damages
1. Can't file punitive damages in contract cases
Aggregation Rules for Amount in Controversy
D Single

D Multiple

P Single

Can aggregateeven if claims are totally unrelated

Aggregate ONLY if Jointly liable

P Multiple

Aggregate ONLY if plaintiffs have common, undivided interest

Must have common undivided interest and D's

have to be jointly liable

x. Plaintiff can in theory be liable for defendant costs

a. 28 U.S.C. 1332(b)
1. Except when express provision therefore is otherwise made in a statute of the United States, where the plaintiff who files
the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75K,
computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and
exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the
plaintiff.
II.

Federal Question Jurisdiction

a. Generally
i. Exists when there is a federal cause of action requiring substantial interpretation or application of federal law
ii. Unless Congress gives federal courts exclusive jurisdiction, state courts have concurrent jurisdiction
iii. Constitutional basis
a. Article III, 2: extends judicial power of the federal courts to all cases arising under the Constitution and federal statutes
iv. Statutory basis
a. 28 USC 1331: federal courts have original jurisdiction of civil actions over questions arising under the Constitution, federal law
b. Rationale for Federal Question Jurisdiction
i. Federal courts are in best position to understand and interpret federal law
ii. Federal courts are in the best position to enforce federal law especially when it is unpopular in the forum state
iii. Federal courts are able to give federal law more uniform application than state courts
c. INGREDIENT THEORY
i. When question to which the judicial power of the Union is extended by the Constitution, forms an ingredient of the original cause, it is in
the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.
a. Osborn - fed jurisdiction because bank was founded on a charter given by Congress
1. Look at statute charter creating the bank
2. Deemed to be a federal case because it required interpretation of Constitution and charter said bank could be sued or sue
in federal court
3. Osborne is the standard for Constitutional arising under ingredient theory
b. Osborn not relevant today b/c courts interpret a lot more narrowly today
d. Well Pleaded Complaint Rule
i. Federal question must be evident from the plaintiff's statement of the cause of action in a well-pleaded complaint.
a. Motley 2 peopletrain tickets for life as long as dont sue Congress passes a statute that says cant do this
1. only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution.
It is not enough that the plaintiff anticipates a federal question
2. Anticipating defenses doesn't bring something into FQJ
3. Defenses in the answer that actually raise federal issues doesn't create FQJ
4. Counterclaims that raise federal issues don't create FQJ
5. Plaintiff generally choose not to bring a federal cause of action to avoid FQJ
ii. Advantages
a. Allows jurisdiction to be determined at the outset, rather than be contingent on what happens in the future
b. Consistent with treatment citizenship and amount in controversy.
c. Gives Defendant incentive to raise federal defenses
iii. Disadvantages
a. Results in state courts deciding important federal issues in defenses and counterclaims or results in huge waste of time (e.g., Mottley)
e. Artful Pleading
i. Can't use declaratory judgments to circumvent the well pleaded complaint rule
ii. Declaratory Judgments
a. Only a federal question if the coercive action that would have been brought in the absence of declaratory judgments would have been
a federal question

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b.

f.

Declaratory Judgment - 28 U.S.C. 2201

1. In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.
iii. Cant omit necessary federal questions
a. Bright v. Bechtel Petroleum
1. Employee sues employer for breach of contract for, as legally required, withholding income taxes from his paycheck
Holmes Creation Test
i. A suit arises under the law that creates the cause of action." (Holmes in American Well Works)
ii. More useful for including claims than excluding claims
iii. Federal cause of action = always a federal question
iv. State cause of action = NOT necessarily a FQ, but could be
a. T.B. Harms v. Eliscu (1964)
1. Even though the claim is created by state law, a case may arise under a law of the United States if the complaint
discloses a need for determining the meaning or application of such a law. . . .
b. Smith v. K.C. Title and Trust (US Supreme Court 1921)
1. where it appears [from the complaint] . . . that the right to relief depends upon the construction or application of [federal
law] federal courts have jurisdiction.
c. Merrel Dow
1. P asserted that D's violation of the FDCA was direct and proximate cause of their injuries, a claim that caused D, Merell
Dow, to remove the case to federal court on basis of federal question jurisdiction
i. Court concluded that claims DID NOT arise under federal law because Congress had determined that there
should be no federal private cause of action under the FDCA
ii. "Presence of a claimed violation of the federal statute as an element of a state cause of action is insufficiently
'substantial' to confer federal question jurisdiction
d. Grable (standard today)
1. Grable delinquent in taxes so IRS seized property; Grable sued person who brought property saying title not valid b/c IRS
did not serve notice properly
2. Grable Reinterprets Merrel Dow on last issue
3. Question is does a state law claim necessarily raise a stated federal issues, actually disputed and substantial, which
a federal forum many entertain without disturbing any congressionally approved balance of federal and sate
judicial responsibilities.
i. Is part of that claim a federal issue?
ii. Don't over read necessarily
iii. If not disputeddoesnt need to be in federal court
iv. "substantial", in Grable, substantial is strong federal interestin Grable, IRS has strong interest in outcome b/c relies
on property seizures to pay of tax debt
v. If we allow case in won't cause flood of cases
e. Overview of Federal Question Jurisdiction
Issue of federal law evident in well pleaded complaint?
No

Yes

State Law

State Cause of Action with no issue of federal

law
Most cases are here, accidents, breach of
contract

State cause of action, but in well pleaded complaint is federal

question
Maybe
Use Grable Test
Is federal issue necessary to win case?
Disputed
Substantial
Would hearing it in federal court disrupt balance
of power

Federal Law

Federal cause of action but no issue of federal

law
Shoshone Case
NO (?)
But hasn't been another case like it
not clear that if another case like this
came out that court would come out the
same way

Federal cause of action and issue of federal law evident in wellpleaded complaint..
YES
Vast majority of federal questions in this category

III. SUPPLEMENTAL JURISDICTION

a. Generally

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i. How federal courts with SMJ over one claim (the independent claim) can also get SMJ over related claims that by themselves are
jurisdictionally insufficient (supplemental claims

ii. Rationale: - Efficiency

iii. Gibbs case made it constitutional

b.

Pendant Jurisdiction (now just supplemental)

i. Pendant Claim
a. P asserts claim with SMJ against D(independent claim) and a 2nd claim against D w/o an independent basis for SMJ against the same
D (pendant claim)

ii. Pendant Party

a. P asserts a claim with SMJ against D (independent claim) and a 2nd claim w/o independent basis for SMJ against a different D
(pendant party)

iii. (Distinction used to be importantbut not really anymore)

c.

Joinder Rules (precondition for supp J)

i. Suits by P against multiple Ds

ii. Counterclaims
a. Suit by D against P
1. Compulsory if you want to make it, need to do it now
2. Permissive counterclaims you can make, but which you could also make later
iii. Cross-claims
a. P sues D1 and D2 ; D1 sues D2
iv. Impleader
a. P sues D1; D1 can implead a 3rd party (normally P would then amend complaint to include 3rd party

d.

United Mine Workers v. Gibbs

i. Facts: Gibbs a supervisor of mine; mine workers strike; and then 2ndary boycottunion workers pressure others not to work for Gibbs;
Gibbs files suit;

ii. Issue : 2ndary Boycott is a federal issue; Interference/breach of contract is a state issue (state cause of action w/o federal issue)
iii. Rule/Holding
a. Article III of constitution grants jurisdiction over cases not just claims (when claims closely related enough, well hear together)
b. State/Federal claims must arise from common nucleus of operative fact
iv. Established discretionary factors Gibbs Factors for establishing Supp J (later codified)
a. Federal issues are not resolved early in the case
b. State issues dont substantially predominate
c. State claim is closely tied to questions of federal policy
d. Other reasons that are independent of jurisdictional concerns (hearing claims together would confuse the jury)
e. (Later courts added) whether court would be required to decide sensitive or novel issues of state law
v. So2 part test to determine Supp J.
a. Is it constitutional (common nucleus of operative fact)
b. Go through Gibbs factors

e.

Pendant Party Jurisdiction

i. Aldinger
a. Aldinger sued officers under federal civil rights and county under state claim (b/c statute said that county can't be sued under statute)
b. Court said no Supp J b/c would circumvent Congressional intentwon't allow you to go through back door
1. Civil Rights act has been interpreted and you cant sue counties under it
2. Cant get to federal court through back doorwhen Congress has said it cant be done
c. Establishes that pendant party jurisdiction is narrower than pendant claim
ii. Owen Equipment v. Erection Co
a. P, citizen of Iowa, sued Omaha Public District, Nebraska corporation, for wrongful death of husband
b. D in response asserted an indemnity claim against a 3rd party (Owen equipment and erection company) NOT diverse from plaintiff
c. P amends complaint and adds state claim against Owen and argues Supp J.
1. Common nucleus of operative fact present (allowing D1 and D2)
d. BUT there must be complete diversity allowing jurisdiction would be circumventing the Constitution!!
iii. Finley
a. Facts: P's husband and 2 kids killed when plane hit power lines; P (CA) Sued FAA under Federal Tort Claims Act (allows you to sue

f.

the government); Later, amended to include state law claims against city of San Diego (CA) and utility co. that maintained power
lines (would be no diversity J in 2nd case)
b. P claims Supp J b/c federal courts have exclusive jurisdiction over FTCA claims
c. But SC says NO b/c FTCA confers jurisdiction civil actions against the USnot civil actions that include the USmeans the US
and no one else
d. Bascially, the SC said Congress, if you want there to be jurisdiction, you have to say so
iv. In sum courts strongly restrict pendant party jurisdiction
MODERN SUPPLEMENTAL JURISDICTION
i. 28 USC 1367

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shall have supp. j over all other claims that are so related to claims in action within such original jurisdiction that they form part of
the same case or controversy under Article III
1. Codify the Gibbs factors
b. any action in which jurisdiction is based soley on 1332 (diversity) district courts shall not have supplemental jurisdiction
1. No Supp J if it destroys complete diversity
2. Codifying Owen
c. may decline to exercise jurisdiction over a claim under sub. A if:
1. the claim raises a novel or complex issue of State law,
i. state courts are more knowledgeable of state issues, and state courts can set precedent (This is not in the Gibbs
decision)
2. the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
i. If you have to prove much much more under state claims, if you'll spend most time on state claim, it has a feel of
state claim
3. the District court has dismissed all claims over which it has original jurisdiction, or
i. Doesn't say early in case, but courts interpret it that wayif beginning of case, much more likely to kick out state
claim
4. in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
i. Catch allnot clearcourts differ on how broadly interpret this
d. period of limitation shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law
provides for a longer tolling period.
1. If Supp. J dismissed, you are allowed to re-file in state court
2. Makes states give you whatever time is left under statute of limitations plus 30 days
g. Final Notes on Supplemental Jurisdiction
i. Courts differ on whether 1367(c) factors are comprehensive
a. Courts differ on whether they are the only reasons courts can use to decline supp. J, or if they are just examples
b. Also differ on how broadly to apply (especially with #4)
ii. Some courts confuse supplemental jurisdiction with aggregation of claims (e.g., Shanaghan v. Cahill)
a. P sued one D on 3 claims (3 debtsone for 40,000, one for 24K, and one for 15Kthe amt. in controversy at time is 50,000
b. Case was originally filed in federal courtafter discovery, court granted summary J on 40Kand then said would refuse supp.
jurisdiction on last 2 claims
c. Ruling: Aggregate claims that exceed $75,000 against a single D at the time of the case, if there is diversity of citizenship, are not
considered to be supplemental claims
1. Thus, if the total falls below $75,000 if one claim is dismissed, a court may still assert PJ over D
h. Diversity Based Action Claims
i. Only class representatives (named plaintiff) citizenship matters
ii. Generally cant aggregate across plaintiffs
a. Ex - 100 people in class, and each has 1,000 in damage = 100,000 in damage
b. In general, can't say amt. in controversy, because Multiple P suing single D P's must have common undivided interestand
plaintiffs in controversy don't generally have common undivided interest
iii. Class Action Fairness Act (2005) grants federal SMJ if aggregated claims exceeds $5 million and there is minimal diversity
a. Even if you don't have common undivided interest
b. For certain class actions, grants federal jurisdiction if:
1. Minimal diversity (generally)
2. Aggregate amount in controversy > $5 million
c. Purpose: Allow removal of large class actions
d. Effect: More removal and more class actions originally filed in federal court
iv. Can use supplemental jurisdiction if facts satisfy the requirements for supplemental jurisdiction
a. If P, suing for 100,000 and other 10 plaintiffs each suing 10Kso total is 200K (so not in class action fairness act)
1. Can't aggregate b/c no common undivided interest
b. BUT can get into federal court as long as one P is over amt. in cont. then and named plaintiff has to be diverse (1367 allows
for this)
c. Must be one claim that by itself can get in federal court
d. New rule: 28 U.S.C.1367 means can use supplemental jurisdiction in diversity-based class actions (Exxon Mobil v. Allapatta Services
(2005))

a.

IV. REMOVAL JURISDICTION

a. Generally
i. Definition D having a case moved to federal court that could have been filed in federal court
ii. Rationale Gives both parties an equal chance to have the case in federal court
iii. Constitutionally Satisfies Article III, Section 2
iv. Statutory Current removal statute, 28 USC 1441
v. Removal is the Ds right
vi. Improperly cases must be remanded

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a. If federal courts dont have SMJ, cant hear the case
vii. Ds burden of proof on remand motion
a. If D removes, has burden of proof showing there is SMJ in federal court. Whoever wants it in federal court has burden of showing
that it should be there

viii. The general removal statute applies to cases, not claims

a. Neither P nor D can dissect a single case and send only parts of it to the federal forum
b. However, the federal court may, in its discretion, remand or dismiss supplemental state law claims in appropriate cases (see 28 USC

b.

c.

1367(c))
The Statute 28 USC 1441
i. 28 USC 1441a - Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the
citizenship of defendants sued under fictitious names shall be disregarded.
a. VERY BROAD
1. All Ds have to agree to go to Fed
2. Must go to federal district court that encompasses the state
ii. 28 USC 1441b - Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the
Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any
other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the
State in which such action is brought.
a. Federal Question Cases can be removed
b. For diversity cases, special criteria
1. If a D is sued in his home state, he may not remove on the basis of diversity
i. D has no need to be protected from local prejudice
2. Otherwise, in a non-diversity claim the case can be removed without regard to citizenship
3. A lot of people don't like this
i. Rationale for exception: If there is any bias, it's going to be in your favorno reason to allow you to remove it
iii. 28 U.S.C. 1441c - Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331
(federal question) of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be
removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law
predominates.
a. Purpose of 1441(c):
1. Prevent P from joining removable and nonremovable claims in state court just to prevent removal by the D.
i. Can still remove FQ and State claim togetheralso allows for possible separation
b. 1441(c) allows removal of cases not removable under 1441(a) & (b).
i. If claims had a common nucleus of operative factand if you have original jurisdiction over entire casecan
remove under 1441.
c. Giving discretion to the district court to remand the nonremovable claims allows the court to determine whether the Ps
reasons for joinder were legitimate.
d. However, FEDERAL COURT NEVER ALLOWED TO REMAND A CLAIM OVER WHICH FEDERAL COURT HAS SMJ
e. Claims without SMJ are NOT required to be remanded back
1. Does not satisfy Gibbs test for common nucleus
f. Purpose is prevent P from joining removable and nonremovable claims in state court just to prevent removal by D
g. In order to be removed, there must be a separate and independent claim
1. Separate when separate recoveries are sought
i. P sues D for failing to pay overtime FQ, breach of contract for firing (state claim) most courts would say 1441 (c)
does not apply because there is a common nucleus of operative fact related enough for supplemental jurisdiction
1. even though separate recoveries
2. even though different situation
ii. P sues D for failure to grant family leave FQ, infliction of emotional distress because of it (state claim), interfering
w/ contract for badmouthing employee to next potential employer (state claim unrelated to first two) first two
claims are NOT separate and independent supplemental jurisdiction applies
1. third claim IS separate and independent from the other two
2. (a lot of courts would disagree with this though would find that they all derive f/ employer/employee
relationship = common nucleus of operative fact)
iii. P sues D for violating Ps federal civil rights (FQ) and breach of contract for failing to pay for goods in his store
(unrelated state claim) separate and independent - although they involve the same parties, there is no efficiency by
hearing these cases together
2. Independent when the claims arise from different facts
Procedure for Removal
i. 28 U.S.C. 1446
a. (1) Within 30 days of receiving the complaint that justifies removal, D files a notice of removal in the fed court in the district and
division where the state action is pending. [1446(a)-(b)]

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1.
2.

ii.

iii.

iv.

v.

Notice must contain a short and plain statement of the grounds for removal
Must attach a copy of all process, pleadings and orders served on Ds
b. (2) All parties must be notified, and a copy of the notice must be filed with the state court clerk [1446(d)]
c. (3) The state case stops unless the case is remanded [1446(d)]
Plaintiffs complaint generally determines removal
a. P can prevent removal by:
1. Failing to assert federal question claim
2. Joining a non-diverse defendant in a diversity case
3. Demanding no more than $75,000 in a diversity case
Limits on Complaint Controlling Removal
a. Fictitious Ds (and nominal parties) cant prevent removal based on diversity jurisdiction
b. Cant omit necessary federal questions
c. Fraudulently joining a non-diverse plaintiff
1. No cause of action against the non-diverse D
2. Some courts say also if no evidence supporting claim against the non-diverse defendant
3. Some courts say also if plaintiff doesnt intend to obtain a judgment against the non-diverse defendant
Effect of Plaintiffs Post-Filing Actions on Removal
a. Voluntary Action by plaintiff can make case removable
1. Voluntarily dismisses a non-diverse def.
2. Add a FQ claim
b. Courts split on whether action by court not P can make the case removable
1. Court dismisses a non-diverse D
c. If P seeks to join an additional D after removal which would destroy diversity, courts have discretion to deny joinder and allow it or
remand it to state court
1. Courts often skeptical about this
Defendants lack of control over removal
a. Well-Pleaded complaint rule applies to removal
1. Cant remove on the basis of a federal issue in the answer
2. Cant remove on the basis of a counterclaim

3.

d.

Procedure for Remand

i. 28 U.S.C. 1447
a. P can file a motion to remand on any basis other than lack of SMJ within 30 days
1. e.g. failure to remove within 30 days
b. Orders remanding case (generally) cannot be appealed
c. Federal courts must remand if at any time prior to final judgment it appears that fed courts lack SMJ.

e.

Borough v. West Mifflin (interplay 1441a and 1367c)

i. What did the original court do wrong

a. 1441c shouldn't apply at allhas NOTHING to do with it b/c FQ claim and state claim are not separate and independent because
have a common nucleus of operative facts (the events in the mall) HUGE MISTAKE

ii. So, assume that you could remove under 1441cstill made another mistake
a. 1441c only allows you to remand "matters in which state claim dominates"
b. CAN"T send back federal question matter
c. Can't remand back whole case
iii. So, could the case have been removed?
a. Yes, under 1441ageneral removal statuteyou can remove a case that courts have original jurisdiction
1. Civil Rights Claim is a federal question federal clause of action under 1331
2. And then have original jurisdiction over state claimsunder 1367 b/c supplemental jurisdiction and "common nucleus of
operative fact"
But can't remove under 1441c
Now that it is in federal court, can the court REMAND any of it back?
a. Perhapsunder 1367
1. Can court sent back FQ civil right claim
2. No way to get rid of FQ claim
3. HAS to be in federal court
o BUT you can get rid of state claims
o You can refuse to exercise supplemental jurisdiction under 1367c
o Courts can refusediscretionary
Does it raise a novel or complex issue of state law?

Does the claim substantially predominate over the claim or claims over which the district court has

original jurisdiction?
o Has the district court dismissed all claims over which it has jurisdiction?

b.

iv.

V.

VENUE

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a.

Generally

i. Definition Venue rules are statutes that allocate cases among the same type of courts within a given judicial system. The rules usually
divide cases among counties in states and among districts and divisions in federal court

ii. Venue only an issue after PJ and SMJ established

iii. Purpose Channel litigation into those specific courts that are convenient for litigants and witnesses and efficient from a judicial

b.

c.

administrative standpoint
a. Does this by ensuring that the lawsuits location has some logical relationship either to the litigants or subject matter of the dispute
b. KEY: In addition to satisfying venue rules, the court must have SMJ over the case and PJ over the parties
c. Each court system has its own venue rules
State Venue Rules
i. Generally
a. States differ in the factors used to determine where venue should be laid in a given type of action.
b. Some jurisdictions have one factor as the exclusive basis of venue.
1. EX - some states say that for car accident, it must be where accident occured
c. In some jurisdictions, it is sufficient that any one of many factors be satisfied.
1. Ex - some say for car accident, can be where it occurred or where one lives
d. Many rules say venue depends upon:
1. The type of action
2. Who the defendant is (could be a different rule if a corporation/natural person/gov't)
3. Who the plaintiff is
ii. Typical State Venue Rules
a. MOST COMMON: Where the D resides, does business (if cause of action arises out of this business), or retains an agent.
b. Where the subject matter of the action is located (when real property is the subject matter)
c. Where the cause of action arose (e.g., where accident occurred)
d. Where the P resides
e. In suits involving government parties, where the seat of government is located
More Venue Facts

i. Objection to improper venue is waived if not properly asserted. Thus venue is usually determined at the beginning of the case.
a. You can waive venue by not objecting
ii. Motions to transfer venue (from one proper venue to an even more convenient venue) can be made at any time.
iii. Parties can stipulate to or contract for an otherwise improper venue.
a. Common to see in contracts "all suits arising out of this contract must be brought in XXX district"
iv. Improper venue often can be cured by transferring a case to another court in the same judicial system.
v. If a P amends the complaint, the amended complaint is treated as a new action for venue purposes.
a. Let's say drops defendant and now venue isn't proper
vi. Transitory Action---Where occurrence could take place anywhere
vii. Local action Rulecan only occur where land liesalmost always involves land
a. Venue is ONLY proper where property is located
b. Reasor-Hill Corp. v. Harrison
1. Courts not in position to decide who owns land outside jurisdiction
2. Suit should be filed before D leaves jurisdictional area
3. Unfair to subject states citizens to suits by outside citizens
1.

Federal Venue
o 28 USC 1391a (Diversity)

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law,
be brought only in

a judicial district where any defendant resides, if all defendants reside in the same State,

a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is situated, or

a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is
no district in which the action may otherwise be brought. (only applies if no district that satisfies one or two)
o 28 USC 1391b (Non-Diversity)
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided
by law, be brought only in
1. (1) a judicial district where any defendant resides, if all defendants reside in the same State,
2. (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated, or
3. (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise
be brought.
i. This is the one that is different from above
ii. But no one knows why it is differentmost often interpreted as the same thing
iii. Found = wherever personal jurisdiction

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Reside = Domicile (most courts)
1. Some courts say "reside" is where your house is
2. Rationale (more convenient to be sued where you live)
o 28 USC 1391c (Corporations)
o For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any
judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State
which has more than one judicial district and in which a D that is a corporation is subject to PJ at the time an
action is commenced, such corporation shall be deemed to reside in any district in that State within which its
contacts would be sufficient to subject it to PJ if that district were a separate State, and if there is no such district
the corporation shall be deemed to reside in the district within which it has the most significant contacts.

EXPLAINED
Personal jurisdiction is to states (not particular districts)

Corporations are residents of the states they have personal jurisdiction in

Need to pretend each district in state is separate state

o NC has 3 districts
Only district matters for venue

( All this does is define residence for purpose of applying 1391a and b. Only applies if want to have it

where corporation residesdont need 1391c if want to have venue based on where a substantial part
of the activities occur)
o 28 USC 1391d (Alien Defendants)
o Alien may be sued in any district
o 28 USC 1400(b) Specialized Venue Statute
o Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or
where the defendant has committed acts of infringement and has a regular and established place of business.

In general, treated as supplemental to general venue statutejust one more place you can bring it
Some Federal Venue Facts
o Improper venue must be asserted by pre-answer motion or in the answer itself, or it will be waived (FRCP 12(h)(1))
o (2) Federal venue requirements need not be met in cases that are removed to fed courts
o (3) Increasingly, federal venue requirements need not be met for claims that fall within the supplemental jurisdiction of
fed courts

Rationalsupplemental jurisdiction, efficiency concerns are so much, that we are even going to fanagle
SMJ..venue isn't as near as important as SMJso not as important to establish for each supplemental claims
o (4) Federal venue requirements need not be met for counterclaims and cross-claims.
iv.

3.

4.

Transfer of Venue
o 28 U.S.C. 1404(a) (if venue proper in the first place)
o For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been brought.

May not must

It is judges discretion

"where case could have been brought"can't use this to circumvent personal jurisdiction
o Choice of Law
o Use the transferee courts rule of procedure
o In diversity cases, you use the choice of law that the transferring court would have used.

Use the substantive law that the transferring court would have used
o In federal question cases, you use the interpretation of federal law of the transferee courts
o 28 USC 1406(a) (where venue wasnt proper in the first place)
o The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or
if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
i.
This venue statute is dealing with a case that is filed in a district where venue ISN"T proper (versus
1404a deals with transferring when venue was proper when it was filed)
ii.
You can file a motion to dismiss, or you can just transfer it to another court
iii.
This ONLY applies to federal courts, but most state courts have similar provisions
iv.
Under 1406, use tranferree's choice of law courts
i.
Otherwise, you are setting yourself up for plaintiffs screwing around
ii.
It was per you to file there, so we aren't going to pay attention to that law
v.
In 1404, it was proper to file in original court, so we can still use that law.
vi.
Like under 1404(a), transfer must be to a district where venue is proper and PJ would be obtainable
over the D
vii.
Supreme Court has held that transfer is allowed under 1406 even if PJ over D is also lacking in the
original district
viii.
Some courts have held that 1406 also applies if venue is proper but PJ is lacking
i.
SC has never ruled on this
ii.
Venue and or SMJ

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VI. FORUM NON CONVENIENS
a. Definition D can ask court to dismiss the case when the case has little or no connection with the place where the P has filed it, even
though the P meets the PJ and venue requirements.
b. Rationale The burden on the court system and the inconvenience to the parties and witnesses of a trial where P has filed may dictate that
the action be dismissed and tried elsewhere
c. Key Facts
i. Is a judicially-created doctrine
ii. Is a discretionary doctrine
iii. Case is dismissed and can be refiled elsewhere (Court has no authority to transfer)
iv. Technically, case (almost always) must be able to be filed, and complete relief must be attainable, in a better forum
a. Reality: FNC often kills the case
v. Strong presumption against it (contrary to Piper), especially if original forum is Ps home state.
a. Courts view their courts as providing plaintiff's a convenient place to sue
vi. Has become much less important in federal courts because of 1404 (transfer of venue)
vii. Courts look at same factors as transfer, but generally more willing to transfer than grant FNC
d. Factors Courts Weigh when considering Forum Non Conveniens
i. Interest of the Litigants
a. Ease of access to sources of proof
b. Availability of compulsory process for attendance of unwilling witnesses
c. Cost of obtaining attendance of willing witnesses
d. Chance for jury to see location (if it would help)
e. Enforceability of a judgment if one is obtained
ii. Public interest
a. Less congested court
b. Jury duty and other expenses shouldnt be imposed on a community that has no relation to the litigation
c. Local interest in having local controversies decided locally
d. Diversity cases should tried in the state whose law will apply in the case
Piper
Aircraft
e.
i. Facts: Plane crashed in UKsuit brought in USlaws more favorable in US
a. BUT, Wreckage was in England, maintenance to aircraft in Scotland, investigators to accident in Scotland, Piper properly asserted
that the witnesses, and any third parties to implead, were beyond the reach of compulsory process.
b. Would be really confusing for jury to apply one law in one part, and Scottish law in another
c. Case is really about Scotland
ii. Importance: Possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum
non conveniens inquiry
VII. Personal Jurisdiction
a. General
i. Definition: Jurisdiction over the particular parties or property involved in the case
ii. Personal jurisdiction can be waived
a. Plaintiff waives jurisdiction by filing the case
b. MUST bring it up earlyif you start talking about substance of the case, deemed to have waived it
c. U.S. Constitution sets the outer bounds of personal jurisdiction. States can choose if they wish to go up to this outer bounds (via state
statute or state constitutional provision)
d. PJ in statesthey can exercise PJ, but dont have to (must have long-arm statute)
e. Personal jurisdiction is statewide
b. Territorial Theory
i. D was physically present in the state when served with process
ii. D consented to jurisdiction in the state (If they show up to defend themselves)
a. The above two allow in personam jurisdiction (PJ over the person)
iii. D owned property in the state
a. All In Rem or Quasi in rem jurisdiction (PJ over the property)
1. In Rem - dispute about who owns the land, to decide who owns the land
2. Quasi in rem - based on fact that you have land in state, but suit not about ownership of property, only using property to
get PJ
iv. Important to distinguish:
a. In rem - can only enforce to the value of the property
b. In personam - can enforce to full extenteven in other jurisdictions
v. Justified by SCOTUS and Constitution
a. Every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory
b. No state can exercise direct jurisdiction and authority over persons or property outside its territory
c. Full Faith and Credit only applicable when state had PJ to begin with

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vi. Pennoyer v. Neff Territorial Theory
a. Facts: Neff claimed land in Oregon; Hired an attorney to fill land patent; attorney sues Neff for attorney fees; Attorney wins b/c Neff

doesnt show up; To enforce judgment, sells property at auction to Pennoyer; Neff now back in Oregon and wants his land back;
Neff claims first judgment invalid b/c no PJ
b. Principles Established/Significance
1. Establishes/Reaffirms territorial theory of PJ (see above)
2. Interprets Constitution Due process requires that a courts have PJ over a person
3. Interprets full faith and credit - must have PJ to for judgment to be enforced in other states
c. Society Changes
i. Increased mobility moving across state borders, the automobile
a. Hess v. Pawloski P drove across border into MA determined that the states power to regulate the use of its highways extends to
nonresidents as well as residents state may declare that nonresidents approve of service being accepted by an agent in MA if they
choose to drive in the state (no difference between formal and implied appointment of an agent to accept process for you)
1. All non-resident drivers who operate motor vehicles on state roads impliedly give consent to PJ within the state
2. Incident in question must involve that operation of motor vehicle
ii. Increased interstate commerce
a. Well into 1800s, corporations could only be sued in states where incorporated or where held property (which worked well when
corporations were small and did business in just one state)
b. But then expanded
c. First used the Consent Approach (like in Hess v. Pawloski)
1. Had to appoint an agent to conduct local business in the state
2. If didnt appoint an agent, were deemed to implicitly appoint a state official as an agent for accepting process in suits
arising out of local business
d. Problems with Consent Approach
1. Cant require consent for interstate commerce
2. Consent is obvious legal fiction
e. Then tried Doing Business Approach
1. Corporations are deemed to be present in a state if they are doing business in the state
f. Problems with Doing Business Approach
1. Became a very fact-based test that turned on distinctions attempting to measure the level of a corporations activities in a
state.
2. Paid little attention to burden on corporation of litigating in a state.
3. Could stop activities that constituted doing business before being served.
iii. Technological process internet ads, defamation
d. Minimum Contacts Test is Born (VERY IMPORTANT!!!)
i. Established in International Shoe
a. Due process requires only that in order to subject a D to judgment in personam, if he be not present within the territory of the
forum, he have certain minimum contacts with such that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice.
ii. Set outer bounds of PJ (states create long arm statutes if wish to limit)
iii. Types of Contacts with the State
a. Substantial and Continuous, systematic
b. Sporadic or casual
iv. Quadrant Approach to Establishing PJ under MC Test
Does the COA arise from Minimum Contacts?
Yes
Types
Of
Contacts

Substantial, Continuous,
Systematic
Sporadic or Casual

1. Yes (use specific)

3. Maybe

No
2. Yes
4. No

v. Led to Long Arm Statutes

a. (b/c most states thought that this expanded the territorial theory)
b. States didnt HAVE to extend PJ this fartest just said that they couldso now need a statute
c. Statutes establish PJ over non-residents based on their MConacts to the state
d. range from very broad (up to limits of Constitution) to narrow that only carve out part of their Constitutionally allowed power (e.g.
e.

require the doing of business or an act within the state)

EG) McGee v. insurance company, only one client in CA sent renewal notice to CA enough minimum contacts to subject
company to PJ in CA
1. sporadic and casual contacts
2. CoA does arise from those contacts

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e.

f.

f. McGee shows how EXPANSIVE the MC test isone, single contact is enough to get PJ
How to Apply the Minimum Contacts Test on Exam
i. Two Step Test: (Burger King)
a. 1st prong (sovereignty) Do Minimum contacts exist?
1. Standard is Purposeful Availment
i. There must be some act by which D purposefully avails itself of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its laws. (Hanson Denkla)
ii. Foreseeability - The foreseeability that is critical to due process analysis is not the mere likelihood that a product
will find its way into the forum state. Rather, it is that the defendant's conduct and connection with the forum state
are such that he should reasonably anticipate being haled into court there. (WWVolkswagon)
1. Taha doesnt like thissays it is a circular and doesnt answer the question
b. 2nd prong (fair play) does exercising PJ offend traditional notions of fair play?
1. Go through factors
i. Burden on D
ii. Forum states interest in dispute
iii. Ps interest in obtaining convenient and effective relief
iv. Interstate judicial systems interest in obtaining the most efficient resolution of controversies
v. Shared interest of several states in furthering fundamental substantive social policies
c. If sovereignty prong is satisfied, fairness factors must be substantial to defeat PJ
Applying Minimum Contacts Test in Cases (4 Fact Patterns)
i. Unilateral movement on one of the parties
a. Hanson v. Denkla
1. Facts: DE trust with PA citizen; Woman moves to FL; She was the only client in FL; Estate probated in FL;
2. Holding: No PJ over DE trust company in FL
i. No purposeful availment
ii. DE trust entered into contract with PA citizen who unilaterally moved to FLTrust company never REACHED
OUT to have contacts with FL.
1. As opposed to McGee who reached out to have contract with CA resident
3. There must be some act by which D purposefully avails itself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws
4. Single contact IS ENOUGH, but it must be PURPOSEFUL
b. WW Volkswagon
1. Facts: Ps purchased a car in NY; moved to AZ; while passing through OK, tank exploded and Ps injured; Ps sued VW,
regional distributer, and local (NY) dealership in OK
2. Holding: No PJ in OK b/c companies didnt purposefully avail themselves to forum state
i. In order for PJ to be proper, Ds conduct and connection with the forum state must be such that he could
reasonably anticipate being brought into court there
ii. Unilateral movement of one of the parties for the states is not enough to get the other party PJ
iii. They sold the car to a NY citizen, in NYnot purposeful availment of OK
3. HYPOS
i. What if Ps had come into NY Dealership with OK tags and talked in an OK accent?
1. Nope. Robinsons UNILATERALLY came to NY; Dealership didnt advertize in OK; Even though
dealership know the car would go back to OK, no purposeful availment in OK
ii. What if dealership advertized in the NY Post, circulated to NJ, and someone in NJ sees the and comes to NY to buy
the car and the car blows up in NJ
1. Yes. The dealership knew that the Post was circulated in NJ, so, can say the purposefully reached out to NJ
citizens
iii. What if advertized in NY times?
1. Could go either way
2. National audience, so know its circulated in OK
3. but didnt intend and certainly didnt expect that someone in OK would drive to NY to buy a car just b/c of
the ad
c. Kulko v. Superior Court
1. father w/ two children one wanted to go to live with mom in CA father bought her a plane ticket second also left to
live with her mom
2. CA has no PJ. although father may have benefited financially, no purposeful availment merely causing an effect in the
forum state will not support jurisdiction and exercising jurisdiction would impose an unreasonable burden on family
relations
i. POLICY courts dont want to punish dad for acquiescing to daughters desires
ii. Publication in a State
a. Hustler

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P (NY) filed libel claim against D magazine (OH corp) in NH; Ds connection with NH were 10-15,000 copies of
magazine (very small %)
2. Holding: Yes, selling into a state is purposeful availment, even if a very small percentage
i. And also, even if P has minimal contacts with state (Ps contacts dont matter for establishing PJ over D
ii. KEY the harm arising from the publication was in NH
Calder v. Jones
1. Jones sues National Enquirer for Libel in CA; Equirer a FL corp; also sued Calder (editor) and reporter both FL citizens
i. Different from Hustler b/c article written in FL but effects in CA
2. Holding: PJ over editor and reporter primarily b/c article was targeted at a CA residentand about her;
i. Actions in question occurred in CA; sources in CA; woman suffers libel in CA
ii. Jurisdiction proper based on effects of their conduct with state
3. Significance: Calder Effects Test (specific jurisdiction)
i. PJ exists over
1. Intentional actions
2. Expressly aimed at the forum state
3. Causing harm the D knows is likely to be suffered in the forum state
ii. Must individually target a known forum resident
4. Apply the Calder Effects Test in:
i. Libel Cases; written slander
ii. Some business torts
iii. Internet Cybersquatting; buying website before someone else can
Cybersquatting
1. Factors in determining whether ownership of domain name was expressly aimed at plaintiff:

1.

b.

c.

i.
ii.
iii.
iv.
v.

whether the registrant has a preexisting, legitimate use for the domain name;
likelihood of confusion that is created by the domain name itself as to who controls the domain.
whether the domain name registrant has registered domain names incorporating other protected marks;
whether the trademark owner has been directly solicited to purchase the domain name;
whether the domain has been offered for sale by the current registrant and, if so, the price sought.

iii. Contract Cases

a. Burger King
1. purposeful availment by franchisees of BK who operated a restaurant in MI in FL; BK headquarters in FL although
MI franchisers acted in response to BK officials in MI
Having a contract with a forum-state resident will not give that state PJ over you alone
Must be additional factors (even if D reached out to forum state to form contract) to determine whether there was
purposeful availment
i. Factors (Apply in all contract cases to determine MC)
1. Prior negotiations- who contacted who
2. Contemplated future consequences; paying fees, receive supplies
3. Terms of the contract; governed by state law
4. Parties actual course of dealing
ii. Must look at totality of four factors if cause of action is contract
Stream of Commerce Cases
a. when D sells its product or component to another distributor or reseller, who then sells it to forum state
b. Asahi
1. P Motorcycle driver in accident; sues manufacturer of tire valve
i. Tire valve made in Japan (Asahi) Sold to a Taiwanese company who put it into a tire Tires sold in CA
1. Stream of commerce b/c Asahi NOT selling into CA
2. Plurality decision, so apply both tests
3. Stream of Commerce
i. Just putting something into the stream of commerce is enough if:
1. D purposely puts goods in stream of commerce
2. D knows that products are ending up in forum state
3. Must be regular and anticipated flow of products to that state
ii. Most likely applies to finished products (probably have more control over where a finished product goes than with
component parts)
1. EX product sold to distributors who sell in forum state (like cars)
4. Stream of Commerce PLUS
i. Finding of minimum contacts must come about by an action of D purposefully directed toward the forum
1. Designing the product for the market in the forum state

2.
3.

iv.

Moore
2.
3.
4.

ii.

Advertising in the forum state

Establishing channels for providing regular advice to customers in the forum state
Selling the product through a distributor who has agreed to be a sales agent in the forum state
a. Stevens says that volume, value, and nature of product must also be considered
Most likely applied to component parts (like Asahi)

v. Internet Cases
a. E-mail and phone calls
1. Courts treat them like letters
2. Key is WHO sent the e-mail (or initiated the phone call)

i. Calling someone is different than receiving a call

Inset Systems
1. Inset (CT) and Instruction Set (MA)
2. Inset had inset as trademark; Instruction Set got inset.com; Inset sued Instruction Set for trademark infringement in
CT
3. Court says PJ in CT
i. Advertising on the Internet and toll free # - so targeting CT people
ii. Satisfies fairness prong
4. VERY BROADthis is an early case
c. Zippo
1. Zippo Manufacturing and Zippo.com (DC) News Service (CA corp)
2. Manufacturing has Zippo trademark; Sues DC for use of trademark in PA
3. Court says YES, PJ over DC
i. DC enters into contracts with customers in PA for news service
ii. DC has contracts with 7 internet providers in PA
iii. DC is purposefully engaging with customers in PA (if they had denied contracts with PA residentsthat would be
different)
4. Court Interprets Web Sites
i. The likelihood that PJ can be exercised in a state is directly proportionate to the nature and quality of commercial
activity that the entity conducts over the internet
ii. Spectrum of Websites
1. Active clearly does business over the internet, enters into contracts with residents of a foreign jurisdiction
that involve the knowing and repeated transmission of computer files over the Internet, PJ is proper
2. Passive Where a D has simply posted information which is accessible to users in a foreign jurisdiction. If
it does little more than make information available to those who are interested in it is not grounds for
exercise of PJ
3. Interactive Where user can exchange with the host computer, where the exercise of jurisdiction is
determined by level of interactivity and commercial nature of the exchange of information that occurs on the
Web site
d. So, Whats the Law? (ON the exam)
1. Courts use variation of Zippo requiring
i. Intentional, forum specific targeting or express aiming at forum and/or
ii. Interactions via website with residents of the forum state
iii. SOME require additional conduct w/ forum state (some say related to the cause of action)
2. Examples of Factors in Targeting or Aiming
i. Disclaimers such as that the website is intended for a limited geographic audience;
ii. Statements posted on the website directed only at residents of a limited geographic audience;
iii. Designing the website so that it wont interact with users of the forum state;
iv. Use of forum-selection or choice of law agreements.
3. Examples of Interactions w/ forum state
i. Searching of the website
ii. Accessing customer service via the website
iii. Ordering via the website
iv. Tracking orders via the website
v. Both ability to do these via the website, and the actual numbers of residents in the forum state who do so, are
relevant.
4. Rationale
i. Internet is so accessible (around the world), that a passive website really has no target audience
ii. Calder v. Jones (effects theory) requires some intentional targeting of a particular state.
iii. Intentional interactions via website with residents of a forum state are a sign of targeting or aiming towards a forum
General Jurisdiction
b.

g.

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i. Generally We dont know a whole lot; only 2 SC decisions and both on different extremes
ii. Required with cause of action does not arise from connections with forum state
iii. What we DO know:
a. Must have much greater contacts than for specific jurisdiction.
b. Contacts must be continuous, systematic and substantial
c. Courts are reluctant to find general jurisdiction, but less reluctant if forum is Ps home state
iv. Perkins
a. Philipiines mining company during WWII; moved all business to Ohio
b. P had unrelated claim about stocks cause of action did not arise out of contacts with that state
c. RULING: PJ over the mining company
1. Even though the case does not arise out of the local assets, continuous contacts with Ohio can give general jurisdiction.
2. Rationale: jurisdiction by necessity? Nowhere else to bring suit!!
v. Helicopteros
a. Plane crash in Peru; Ps (TX) sues Helicol (Columbian corp) in TX claim pilot error
b. Court said NO PJ over Helicol b/c not continuous, systematic and substantial
1. Even though the company had purchased materials in TX, trained pilots in TX, officers had traveled to TX to sign
contracts
Bottom Line
1. Purchases of goods and services in that state is not enough, even if occurring over an extended period of time
2. Mere solicitation, marketing, sales, and related trips normally will not be enough, even when sales reps are living in the
forum state
d. NOTE Dissent says could have decided this with specific jurisdiction b/c cause of action significantly related to contacts in state
1. This is a commonly accepted approach if cause of action significantly related, just apply specific jurisdiction rather than
general
2. Test for Related to Contacts
i. But For Causation - the cause of action would not have occurred but for the Ds contacts with the forum state
ii. Proximate Causation -- the cause of action was proximately caused by the Ds contacts
iii. Sliding Scale The more contacts, the less causation needed.
iv. Note: Sliding scale may eliminate the distinction between specific and general jurisdiction.
vi. What we STILL DONT KNOW
a. What exactly does continuous and systematic and substantial mean?
1. Mere purchases and related trips are probably not enough
2. Mere solicitation, marketing, sales and related trips normally will not be enough, even when sales representatives are
living in the forum state.
3. Most courts require at least an agent for service of process, a local office, or the pursuance of business from a tangible
locale within the state
4. Many courts seem willing to find general jurisdiction only in a businesss state of incorporation or the principal place of
business.
b. Must the Reasonableness/Fairness prong also be satisfied?
1. BUT IN EXAM, GO THROUGH IT
c. Also don't know if this applies to persons
1. Generally doesn't come up, because if you have continuous, systematic, and substantial contacts, you will be in the state a
lot
How to answer a PJ Question on the Exam
i. Make sure there is a Long Arm statute (If not, then no PJ)
ii. Does the cause of action arise from (or is significantly related to) Ds contacts with forum state?
a. If YES, then only need specific jurisdiction
1. Do you have purposeful availment (sovereignty branch)
i. BK standard for contract cases
ii. WWV standard for selling into a state
1. If YES, PJ (still go to reasonableness prong)
2. If NO, go to reasonableness prong
2. Would PJ offend traditional notions of fair play? (reasonableness prong)
i. Go through factors
1. Burden on Dhow inconvenient is it for D?
2. Forum state's interest in adjudicating the case
3. Plaintiff's interest in obtaining convenient and effective relief
4. Interstate judicial system in obtaining most efficient resolution of controversies. efficiency of hearing case?
5. Shared interest of several state in furthering policies
ii. If YES (did it satisfy aboveif yes, then good to goif NO, then factors must be really important to outweigh
above)
iii. If no, then no PJ

c.

h.

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b.

If NO, then will need General Jurisdiction

1. Are there continuous, systematic, and substantial contacts?
2. No, no PJ
3. If Yes, do fairness prong

i.
ii.
iii.
iv.
v.
i.

Burden on Dhow inconvenient is it for D?

Forum state's interest in adjudicating the case
Plaintiff's interest in obtaining convenient and effective relief
Interstate judicial system in obtaining most efficient resolution of controversies. efficiency of hearing case?
Shared interest of several state in furthering policies

In-Rem and Quasi-in-Rem Personal Jurisdiction

i. Generally
a. In Rem disputes over the ownership of land; judgments can only be enforced in that particular forum
1. In rem jurisdiction stems from idea that states have control over land within borders (territorial theory from Pennoyer)
b. Quasi-in-rem jurisdiction b/c property in state, but CoA not about the property
1. D can only enforce up to value of the property
ii. How to establish jurisdiction today
a. Apply the minimum contacts test
1. all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe
and it's progeny Shaffner
But the MC test is applied strangely, because with quasi-in-rem, can make an argument for specific jurisdiction
iii. So, what satisfies International Shoe?
a. In-Rem b/ccause of action about who owns the property
1. Satisfies minimum contacts test (owning property in a state means you expect to enjoy benefits in the state (purposeful
availment)
2. When suit about property, cause of action ABOUT that property
3. State interest in having ownership clear of property (to know who to tax, if it can be sold)
4. Efficiency - property in the state, and witnesses, records probably in the state
b. Quasi -in -Rem where P's claim relates to rights and obligations arising out of the D's ownership of local property
1. e.g., P injured on D's local property
2. Not a big deal b/c have specific jurisdiction in statedon't need quasi-in-rem
i. Better to have specific jurisdiction b/c full faith and creditcan take judgment to any other state
ii. Jurisdiction that is only Quasi-in-rem, can't take judgment anywhere else
iv. What Fails International Shoe?
a. Quasi-in-rem over property where P's claim is completely unrelated to the property
v. Still unclear if there are exceptions
a. Especially quasi-in-rem over REAL property, even if P's claim is completely unrlated to the property
b. (Majority's language is ambiguous; Powell and Steven's concurrences explicitly don't decide this)
1. Some lower courts have allowed this exception
Transient Jurisdiction
i. Burnham Case
1. Facts: A man goes goes to CA on business, also visits his kids; while there, served with divorce proceedings. For
him to litigate in CA would be inconvenient (he is from NY). Further, the CoA didnt arise out of him going to
CA.
2. Issue: Is physical presense in a state enough to have PJ after International Shoe?
3. RULING:
a. SC said that it is fine to be served with process in a statethat its valid
b. You dont have to apply MC testMC test was designed for when defendant NOT
PHYSICALLY present in the state
c. Presence alone is grounds for jurisdiction
ii. What we still dont know
1. Domicle if you are domiciled in a state, but don't live there anymore, you still can generally get sued in
domicile state, but SC has never ruled on it
2. Really transient presence flying in airplane and served with process in airSC has never addressed it (But a
district court has ruled that thats ok
a. Problem - no way these are continuous, systematic, or substantial contacts
b. No guarantee that courts will reach same decision

b.

j.

k.

Consent as a basis of PJ

i. Traditional Consent
a. Sued in a state, show up and start to argue (not a special appearance)

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b. You've deemed to consent to PJ
ii. Contract Consent
a. Clauses that say you choose the forumforum selection clauses
iii. Forum Selection Clauses
a. Strong presumption of enforceability, especially when the parties to the contract were both represented by competent counsel and

b.

l.

had equal bargaining power

1. If courts didnt enforce these clauses, foreign companies would be less likely to want to do business with American
companies.
Generally, person challenging clause must show the clause is unreasonable in the circumstances of the case, or that it was
obtained unfairly:
1. Clause was the product of fraud or overreaching (i.e. unequal bargaining power / absence of meaningful choice on the
part of one of the parties)
2. Party would be effectively deprived of his day in court because of the great inconvenience or unfairness of the clauses
forum
3. Enforcement of the clause would contravene a strong public policy of a state
4. Some courts distinguish permissive vs. mandatory clauses

Personal Jurisdiction in Federal Courts

i. FRCP 4(k)(1) - Territorial Limits of Effective Service.

a. In General - Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
b. who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
1. Look at state long arm statute
2. And Minimum contacts test
c. 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

ii.

iii.

from where the summons was issued;

1. Rule 14 - 3rd party defendants
2. Rule 19 - counter claims or cross claims
d. when authorized by a federal statute.
FRCP 4(k)(2) -Federal Claim Outside State-Court Jurisdiction
a. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a
defendant if:
1. the defendant is not subject to jurisdiction in any states courts of general jurisdiction; and
2. exercising jurisdiction is consistent with the United States Constitution and laws.
If there is PJ in a state court, generally will be PJ in federal court

VIII. Notice
a. Why Important
i. If you dont have sufficient notice, due process is violated
b. Standard for Constitutional Notice: Mullane Test
i. "Notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.
ii. The means employed must be such of one desirous of actually informing the absentee might reasonably adopt to accomplish it
iii. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself
reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, the form chosen is not
substantially less likely to bring home notice than other of the feasible and customary substitutes.
iv. Publication by notice in paper is a legal fiction
v. Not requiring ACTUAL notice
vi. Balances the needs to notify people who have an interest in the case against the cost of notice
vii. *This is a very straight forward standardbut the devil is in the details*
c. Examples and Applications
i. Eminent Domain
a. If you have the names and addresses of the people who own the property, you should send mailposting on door not enough
ii. *Generally, if you have names and addresses of people, notice on a door (or in paper) isnt enough
iii. Greene v. Lindsey If you know that kids are going to tear down postings on a door, posting on door isnt enough (b/c process servers
were aware)
iv. If you send certified mail and it comes back, send it through regular mail
a. Because when you get it back, you know that they werent notified
v. Bottom Line: Mullane Test
IX. Choice of Law in Federal Courts
a. 28 U.S.C. 1652 (Rules of Decision Act) Current

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i. The laws of the several states, except where the Constitution or treaties of the U.S. or Acts of Congress otherwise require or provide,

b.

c.

d.

e.

f.
g.

shall be regarded as rules of decision in civil actions in the courts of the U.S., in cases where they apply.
a. (basically saying that in diversity cases, use state law)
Old Standard: Swift v. Tyson
i. Federal courts could use whatever law they deemed appropriate
ii. Interpreted the rules of decision act to mean that they only had to abide by state statutory and local laws BUT NOT state common law
a. At the time, trying to have horizontal uniformity between the states
b. Also courts trying to encourage interstate commerce
c. Lack of out of state reporting systems made it difficult to determine state common law
Problems with Swift v. Tyson
i. Late research indicated it may have been inconsistent with Congressional intent
ii. Lack of uniformity of law
a. Inconsistent decisions about what was "local" v. "general" Q
b. Fed courts failed to develop uniform fed. Common law
c. Even in clearly general Q's, many federal courts used common law decisions of the jurisdictions in which they sat
iii. State courts frequently failed to follow federal common law decisions
iv. Inconsistency of law between federal and state courts encouraged forum shopping; especially removal by corporation D's
v. Substantive law adopted by fed. Courts generally less favorable to injured plaintiffs
a. Combined effect: needy plaintiffs typically forced into small settlements
Erie v. Tompkins
i. Facts: Tompkins walking along RR tracks in PA; injured by hanging door (took his arm off); He brought suit in NY b/c his lawyers were
there and Erie incorporated there
ii. KEY ISSUE: Which law do you apply? PA law or federal common law
a. If PA law, then Tompkins cant bring suit b/c deemed a trespassor
b. BUT, if use federal common law, then he can recover
iii. Supreme Court Ruling
a. OVERTURNED SWIFT V TYSON
b. The laws of several states INCLUDE state common law
iv. Why did they over turn it?
a. No such thing as federal common law (didnt develop as they would have hoped)
b. Unconstitutional because generally no equal protection (But they really didnt say way, this is just a guess)
v. Twin Aims of Erie
a. Limit forum shopping
b. Provide for the equitable administration of the law
How far does Erie extend?
i. Guaranty Trust Co:
a. Dealt with Statute of Limitations issue- Is it a substantive or procedural issue?
b. Issue: If claim brought it state court, it would be barred by SoL, but if brought in fed court (which it was) fed court can hear it
c. Holding: Outcome Determinant Test: Would it significantly affect the result of a litigation for a federal court to disregard a law of
a State that would be controlling in an action upon the same claim by the same parties in a State court?
1. Doesnt matter if procedural or substantive
2. Application Federal practice in question must significantly affect the lawsuits result
3. Viewed Erie as an attempt to achieve vertical uniformity; reflected desire to eliminate forum shopping between
state/federal courts in diversity cases
4. Limits on the Test Fed courts could still provide traditional equitable remedies (such as injunctions) that werent
available in state court
5. Problems with test Very subjectiveopens up a lot of questions because every rule could be considered outcome
determinative (Even a silly rule like hole punches)
If there is a conflict between a federal constitutional provision and state law
i. Constitution applies even if they conflict with state law, substantive or procedural, because we all agreed to that back in 1789 (supremacy
clause, article 6, 2)
If Conflict is between federal practice/common law and state law
i. Byrd v. Blue Ridge
a. Facts: Dispute over who should decide status of a person for a worker comp claim: state law says judge; fed law says jury
b. Holding: Divided Law into 3 categories
1. Rules defining state rights and obligations
i. Use STATE law
2. Rules bound up within state created rights and obligations (Does it further the substantive goal?
i. Procedural rules which are tied to substantive policies
ii. EX burden of proof in title claims
iii. Use STATE law

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3.

Rules of form and mode (procedural)

i. Generally use FEDERAL law
ii. Only use state law if:
1. Failing to do so would produce a substantial likelihood of different outcomes in state and federal courts
(outcome determinative test)
a. It will always cause a different outcome, but only looking at the beginning of the case
2. Federal counter veiling considerations dont exist that are sufficient to outweigh the Erie policy of getting
duplicate outcomes between state and federal courts
a. Examples of Counter veiling consideration
b. Federal preference for something (iehaving trial judges determine verdicts)
c. Byrd is an example of category 3, so court would only need to apply the state law if:
1. failing to do so would give a different result (probably wouldnt judge or jury would probably decide the same thing)
2. fed concerns dont exist that outweigh Erie considerations (here, fed concerns probably DO outweigh Constitution
gives right to a jury federal concern to have juries decide cases (states decision just administrative not policy-driven)
d. so federal court can apply federal law in this case
h. If there is a conflict between FRCP and state law
i. Use FRCP as long as it is 1) in the Rules Enabling Act and 2) Constitutional
ii. 28 U.S.C. 2072 Rules Enabling Act
a. The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in
the U.S. district courts (including proceedings before magistrates thereof) and courts of appeal.
b. Such rules shall not abridge, enlarge, or modify any substantive right. All laws in conflict with such rules shall be of no further force
or effect after such rules have taken effect.
iii. Hanna v. Plumer
a. Issue: Service of Processwhat counts? (difference in state and fed law)
b. Holding: If conflicting laws, apply federal rule of civil procedure, as long as within rules enabling act (and is Constitutionalbut
most likely will be constitutional since supreme court makes these rulesbut still important to ask
1. The test must be whether a rule really regulates procedure the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.
2. Congress has the constitutional authority [Article III and the Necessary and Proper Clause] to enact statutes governing
procedure in the federal courts if while falling in the uncertain area between substance and procedure, they are
rationally capable of classification as either.

i. So as long as federal rule can be classified as procedural that is fine

Important dicta on Outcome determinant test
1. Is it outcome determinant at the time the case was filedask, is this something that would cause forum shopping?
iv. Walker v. Amaco Steel
a. Issue: Conflict over statute of limitationsdo you have to file or serve D with process?
b. Holding: Unless something is clearly substantive, apply federal rules of procedure
1. Here, there was NO conflict b/c FRCP statute of limitation rules apply to FQ cases, not diversity casesso apply state
law when FRCP silent
When Conflict between federal statute and state law
i. Is the statute sufficiently broad to control the issue before the court? (ie - does the statute cover the point in dispute)
a. If there is no conflict, state law applies (Stewart)
ii. If so, 'does the statute represent a valid exercise of Congress's authority under the Constitution? (i.e. - is the statute constitutional)
a. If YES, apply the federal statute
c.

i.

j.

Sum Up of Erie

i. First, Is there a conflict between federal and state law?

a. Courts will often construe the federal law narrowly to avoid a conflict (only look at pla
b. If no conflict, apply state law
ii. Second, If there IS a conflict, then what is the conflict between?
a. If between Constitution and state law,
1. Constitution applies. The nature of the conflict, substantive or procedural is irrelevant because the supremacy clause,
b.

c.

article 6, 2..The Constitutionshall be the supreme law of the land.

Federal Statute and State Law (Stewart)
1. Apply the federal statute as long as the statute sufficiently broad to control the issue before the court?
i. If it doesnt control the issue before the court, state law applies
ii. If it does control the issue 'does the statute represent a valid exercise of Congress's authority under the
Constitution? (i.e. - is the statute constitutional)
1. If yes, then apply the federal statute
Federal Rule of Civil Procedure and State Law (Hanna and Walker)
1. Apply FRCP if 1)Is constitutional and 2) Complies with Rules Enabling Act (most likely will be Constiutional because
SCOTUS makes the rules!!)
i. Rules enabling act saysApply FRCP as long as it can be classified as procedural

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1.

Rules shall not enlarge, abridge, or modify a substantive right

ii.

d.

X.

Only needs to be arguably procedural

Federal practice and state law (Byrd)
1. Rules defining state rights and obligations
i. Use STATE law
1. Concerns elements vs. procedure
2. Rules bound up within state created rights and obligations (Does it further the substantive goal?
i. Procedural rules which are tied to substantive policies
ii. EX burden of proof in title claims
iii. Use STATE law
3. Rules of form and mode (procedural)
i. Generally use FEDERAL law
ii. Only use state law if:
1. Failing to do so would produce a substantial likelihood of different outcomes in state and federal courts
(outcome determinative test)
a. It will always cause a different outcome, but only looking at the beginning of the case
2. Federal counter veiling considerations dont exist that are sufficient to outweigh the Erie policy of getting
duplicate outcomes between state and federal courts
a. Examples of counter veiling consideration
b. Federal preference for something (i.ehaving trial judges determine verdicts)

Pleadings
The Complaint
i. FRCP 2: There shall be one form of action to be known as civil action.
ii. FRCP 3: Commencing an Action
a. A civil action is commenced by filing a complaint
iii. FRCP 8(a)
a. Claim for Relief. A pleading that states a claim for relief must contain:
1. A short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and
the claim needs no new jurisdictional support;
2. A short and plain statement of the claim showing that the pleader is entitled to relief; and
3. A demand for the relief sought, which may include relief in the alternative or different types of relief.
i. Purpose is to give the defendant fair notice for what the plaintiffs claim is and the grounds upon which it rests
ii. Complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.
b. The complaint must be a short plain statement showing the plaintiff is entitled to relief and a demand for relief sought which may
include alternative or different types of reliefs.
i. Sufficiency of the Complaint Under the Federal Rules
a. Legal Sufficiency:
1. If, on the face of the complaint, the allegations could not support a judgment for the plaintiff the case can be dismissed on
legal insufficiency.
i. File a motion to dismiss or failure to state a claim under 12(b)(6)
2. How do we determine if this is satisfied?
i. If the plaintiff proved everything she alleged in her complaint, would the law provide a remedy for her?
1. If yes, then legally sufficient
2. If no, then not legally sufficient
b. Factual Sufficiency:
1. Challenged under 12 (b)(6) motion
i. Bell Atlantic Corporation v. Twombly (2007)
1. There must be something more than speculation and suspicion in the complaint.
a.
There must be fair notice of the nature of the claim and grounds on which the claim rests.
b.
There must be some facts to show plausibility of the claims.
I. Rule: Once a claim has been stated adequately it may be supported by showing; any set of
facts consistent with the allegations in the complaint.
2. Remember: Unless you are dealing with things like fraud, you do not need to plead with particularity as
mentioned in RULE 9.

a.

ii.

c.

Ashcroft v. Iqbal (2009)

1. The ruling in Twombly applies to all cases. Not just Anti-Trust cases, such as it was.
2. Note: Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.
a. Only a complaint that states a plausible claim for relief survives a motion to dismiss.
Effects of Twiqbal
1. Lawyers (and judges) dont know how much detail must be in complaints

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2.
3.
4.

Forms in FRCP likely to be withdrawn

Studies indicate motions to dismiss are more successful
Will more cases be filed in state rather than federal court?

i.

Advice for Plaintiffs in drafting complaints

1. Rather than making bare-bones recitations of the elements of the claims, allege specific facts
underlying each element
2. Err on the side of pleading too many facts
3. Allege facts that make your claim plausible rather than relying on reasonable inferences are drawn in favor
of the pleader

ii.

c.

Advice for Defendants Filing Motions to Dismiss

1. File more motions to dismiss
2. Cite Twombly and Iqbal liberally
3. Target any allegation that is remotely conclusory
4. Target any allegation that is at least equally consistent with legal behavior
d. Big takeaway; The allegations if true must state a plausible not just possible claim for relief.
e. Open Access of Courts Act of 2009
1. A court shall not dismiss a complaintunless it appears beyond doubt that the plaintiff can prove no set of facts in
support of the claim, which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those
subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the
plaintiffs claim to be plausible or are
insufficient to warrant a reasonable inference that the defendant is liable
for the misconduct alleged.
f. Plaintiff only has burden of pleading matters for which Plaintiff will have burden of introducing evidence at trial
1. Plaintiff must plead their basic claims
2. Plaintiff does not need to plead non-existence of defendants possible defenses
g. Excessively detailed complaints can violate FRCP 8(a)(2) (not a short and plain statement of the claim)
1. Courts dont find this often
2. Generally will have a right to amend complaint anyway
12(b) Defenses against a claim for relief.
a. Heightened Pleading Standard
1. FRCP 9(b)
i. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally
b. Inconsistent Claims or Defenses
1. FRCP 8(d)
(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense or in separate ones..
(3) A party may state as many separate claims or defenses as it has regardless of consistency.

c.

Relief

1.

d.

General damages: All damages which necessarily and naturally flow from the wrongful act (i.e., pain and suffering
resulting from injury, difference between market price and contract price for breach of contract action)
2. Special Damages: Damages that dont necessarily or naturally flow from the action (i.e., lost income resulting from an
inability to work due to an injury, lost profits resulting from breach of contract)
d. Pleading Special Matters: Special Damages
1. FRCP 9 (g)
i. If an item of special damage is claimed, it must be specifically stated.
1. To put the defendants on notice
e. Demand for Judgment; Relief to be Granted
1. FRCP 54 (c)
i. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every
other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that
relief in its pleadings.
1. When defendant doesnt show up cant go over amount demanded in pleading
2. If defendant does show up they grant whatever is entitled to the party
A default judgment (when the defendant doesnt show up) the judge cannot give you more than you asked for in the complaint.
i. Serving the Complaint
a. Constitutional Standard
1. Mullane: must be reasonably calculated under all the circumstances, to appraise interested parties of the pendency of the
action.
b. Serving of Process
1. Purpose: Notify defendant(s) of lawsuit
2. Definition of process:

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i.
ii.
3.
c.

d.

Copy of complaint, and

Summons directing defendant to answer the complaint.

Traditional method of service of process

i. Personal delivery of process to the defendant

Overview of Serving Process
1. File the complaint with the court
2. This permits you to obtain the clerks signature and courts seal on your summons
3. Next step is to serve process (summons and copy of complaint) on the defendant(s)However, you have the option of
requesting defendant(s) to WAIVE their rights of service of process
Issuance of Summons
1. FRCP 4(a)
i.

2.

A summons must:
a. Name the court and the parties
b. Be directed to the defendant
c. State the name and address of the plaintiffs attorney orif unrepresentedof the plaintiff
d. State the time within which the defendant must appear and defend
e. Notify the defendant that a failure to appear and defend will result in a default judgment against the
defendant for the relief demanded in the complaint;
f. Be signed by the clerk; and
g. Bear the courts seal
FRCP 4(b)

i.

3.

On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the
summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service one the defendant. A
summonsor a copy of a summons that is addressed to multiple defendantsmust be issued for each defendant to
be served.
FRCP (c)(1) (what must be served and when?)

i.

e.

In General. 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.
Time limit for service
1. FRCP 4(m)

i.

f.

g.

If a defendant is not served within 120 days after the complaint is filed, the courton motion or on its own after
notice to the plaintiffmust 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).
Who Can Serve Process?
1. FRCP 4(c)(2)-(3)
2. By whom. 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 Specifically Appointed. At the plaintiffs request, the court may order that service be
made by a United States marshal or deputy marshal or by a person specifically appointed by the court. The court
must so order if the plaintiff is authorized to proceed in a formula pauperis under 28 USC 1915 or as a seaman under
28 USC 1916.
Serving an individual in the U.S.
1. FRCP 4(e)

i.

e.

Unless federal law provides otherwise, an individualother than a minor, an incompetent person, or a person whose
waiver has been filedmay be served in a judicial district of the United States by:
1. Following state law 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
2. Doing any of the following:
a. Delivering a copy of the summons and of the complaint to the individual personally
b. Leaving a copy of each at the individuals dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
c. Delivering a copy of each to an agent authorized by appointment or by law to receive service of
process.

Who can receive a summons.

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a.

Serving a corporation, partnership, or association

1. FRCP 4(h)

i.

b.

(h) Unless federal law provides otherwise or the defendants 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, managing or general agent,
or any other agent authorized by appointment or by law to receive service of process andif the
agent is one authorized by statute and the statute so requiresby mailing a copy to the defendant;
or
2. at a place not within any judicial district of the United States, in any manner prescribed by Rule (f) for
serving an individual, except personal delivery under (f)(2)(C)(1).
Special Service Rules
1. Different Rules apply for serving:

i.
ii.
iii.
iv.
v.

c.

Persons in foreign countries: Rule 4(f)

U.S. and its agencies, officers, and employees: Rule 4(i)
State and local governments: Rule 4(j)

Foreign governments: Rule 4(j)

Waiving Service
1. Rule 4(d)

i.

d.

Minor or incompetent persons: Rule 4(g)

Requesting a Waiver.
1. An individual, corporation, or association that is subject to service under Rule 4(e),(f), or (h) has a duty to
avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an
action has been commenced and request that the defendant waive service of a summons.

Effect of Waiving Service

1. Rule 4(d)(4)-(5)

i.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply
as if a summons and complaint have been served at the time of filing the waiver

ii.

e.

(5)Jurisdiction and Venue not waived. Waiving service of a summons does not waive any objection to personal
jurisdiction or to venue.
Who gets waiver Request?
1. Rule 4(d)(1) contd

i.

f.

The notice and request must:

a. Be in writing and be addressed;
I. To the individual defendant; or
II. For the defendant subject to service under Rule 4(h) to an officer, a managing or general
agent, or any other agent authorized by appointment or by law to receive service of
process;
b. Name the court where the complaint was filed;
c. Be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for
returning the form;
d. Inform the defendant, using text prescribing in Form 5, of the consequences of waiving and not
waiving service;
e. State the date when the request is sent;
f. Give the defendant a reasonable time of at least 30 days after the request was sentor at least 60
days if sent to the defendant outside any judicial district of the United Statesto return the waiver.
g. Be sent by first-class mail or other reliable means
Waiving ServiceThe Stick
1. Rule 4(d)(3)

i.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a
waiver requested by a plaintiff located within the United States, the court must impose on the defendant:
a. the expenses later incurred in making service; and

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b.

g.

Waiving ServiceThe carrot

1. Rule 4(d)(3)

i.

f.

the reasonable expenses, including attorneys fees, of any motion required to collect those service
expenses

(3) Time to answer after a waiver. A defendant who, before being served with process, timely returns a waiver need
not serve an answer to the complaint until 60 days after the request was sentor until 90 days after it was sent to the
defendant outside any judicial district of the United States.
1. Without waiver, usually have only 21 days.

Defendant chooses to waive formal service method and therefore gets more time with informal service method.

i. Possible Responses to Complaint

a. Rule 12(b)(1): Lack of SMJ
b. Rule 12(b)(2): Lack of PJ
c. Rule o12(b)(3): Lack of venue (Improper venue)
d. Rule 12(b)(4): Insufficient process
e. Rule 12(b)(5): Insufficient service of process
1. (2-5) Disfavored Defenses

i.
ii.
f.

g.
h.

normally are waived if omitted from Defendants initial motion or from the answer, whichever the defendant serves
fist.

iii. Judge can decide the issue pre-trial, or defer the issue until trial in the interests of efficiency.
Rule 12(b)(6): Failure to state a claim upon which relief can be granted.
1. Complaint lacks sufficient detail to satisfy plaintiffs pleading burden under Rule 8(a)(2)
2. Even if all of the allegations in complaint are true, defendant would not be liable
3. All facts alleged in complaint are assumed to be true
4. If granted, Plaintiff generally will have an opportunity to amend (i.e., not dismissed with prejudice, at least the first time)
Rule 12(b)(7): Failure to join a party under Rule 19 (i.e., a necessary party)
Rule 12(e): Motion for a more definite statement
1. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a response. The motionmust point out the defects
complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14
days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other
appropriate order.
i.
ii.
iii.
iv.

i.

can be made by pre-answer motion or in the answer

Complaint must be hopelessly garbled and confused:

1. Incorporating prior allegations into complaint by reference is fine (allowed by Rule 10(c)
2. Failing to separate claims by counts is fine
Motion is rarely successful
As a result, motion not often made

Motion must be made before filing a responsive pleading

Rule 12(f): Motion to strike:
1. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.
2. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading

i.

j.

For both (e) and (f)

1. Must be made and (are generally decided) before answering the complaint
2. Normally are waived if omitted from Defendants initial motion or if D answers the complaint
Rule to Join Motions
1. Rule 12(g)(1)

i.

k.

A motion under this rule (Rule 12) may be joined with any other motion allowed by this rule.
Limitations on Further Motions
1. Rule 12(g)(2)

i.

l.

Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
1. 12(b) 2-5
Waiving certain Defenses

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1.

Rule 12(h)(1)

i.

A party waives any defense listed under Rule 12(b)(2)-(5) by:

a. Omitting it from a motion in the circumstances described in Rule 12(g)(2); or
b. Failing to either:
I. Make it a motion under this rule; or
II. Include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter
of course.
m. Limitations on further motions
1. Rule 12(g)(2)

i.

n.

Except as provided in Rule 12h(2) or (3), a party that makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
Hearing before Trial
1. Rule 12(i)

i.

o.

p.

If a party so moves, any defense listed in Rule 12(b)(1)-(7)whether made in a pleading or by motionmust be
heard and decided before trial unless the court orders a deferral until trial.
Favored Defenses
1. Rule 12(b)(1) Lack of SMJ
2. Rule 12(b)(6) Failure to state a claim upon which relief can be granted
3. Rule 12(b)(7) Failure to join a party under Rule 19(i.e., a necessary party)
Timing of Favored Defense
1. Rule 12(h)(2)

i.

q.

r.

Failure to state a claim upon which relief can be granted, [or] to join a person required by rule 19(b)may be raised:
a. In any pleading allowed or ordered under Rule 7(a)
b. By a motion under 12 (C) or
c. At trial
Types of Responses; Favored Defenses
1. Can be made by pre-answer motion, in the answer, in a post-answer motion judgment on the pleadings, or summary
judgment motion
2. Normally is waived if fails to raise it by the end of trial
3. Judge can decide the issue pre-trial, or defer the issue until trial in the interests of efficiency
Timing of Favored DefenseRule 12 (b)(1)
1. Rule 12 (h)(3)

i.

s.

Lack of Subject Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.
Timing of Motion for a More Definite Statement
1. Rule 12(e)

i.

t.

A party may move for a more definite statement of a pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading.
Motion to Strike
1. Rule 12(f)

i.

ii.

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
1. On its own; or
2. On motion made by a party either before responding to the pleading or, if a response is not allowed, within
21 days after being served with the pleading.
Answering the complaint: Responding to Allegations
1. Rule 8(b)(1)-(2)

i.

b.

c.

In responding to a pleading, a party must:

1. (b) admit or deny the allegations asserted against it by an opposing party
2. A denial must fairly respond to the substance of the allegation
Denying part of an allegation
1. Rule 8(b)(4)

i. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
Lacking Knowledge or Information Rule
1. 8(b)(5)

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i.

d.

A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state,
and the statement has the effect of a denial.
1. You dont have enough information to admit or deny is treated as a denial
a. Dont know color of stop light so determined at trial
Effect of Failing to Deny
1. 8(b)(6)

i.

e.

An allegationother than one relating to amount of damagesis admitted if a responsive pleading is required and
the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
Affirmative Defenses
1. Rule 8(b)(1)-(2)

i.

f.

In responding to a pleading, a party must:

a. State in short and plaint terms its defenses to each claim asserted against it.
b. (c)(1) in responding to a pleading, a party must affirmatively state any avoidance or affirmative
defense, including
Three possible Answer Scenarios
1. Defendants answer includes neither defenses nor counterclaims

i.

2.

3.

Plaintiff will not respond.

1. Rule 8(b)(6)
a. An allegationother than one relating to amount of damagesis admitted if a responsive
pleading is required and the allegation is not denied. If a responsive pleading is not required, an
allegation is considered denied or avoided.
Defendants answer includes defenses but not counterclaims
1. Plaintiff may file motion to strike (Rule 12(f))
a. The court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter. (Used like a 12(b)(6) motion to attack a defense) (Used to strike
matters that may cause prejudice against plaintiff)
2. Plaintiff usually does nothing
3. Court may order plaintiff to reply
a. In the interests of clarification, most likely on the defendants motion
b. To admit or deny new factual allegations in answer
I. Sometimes plaintiff moves for a more definite statement (Rule 12(e)) before replying
Defendants answer includes counterclaims

i.

ii.
iii.
iv.
g.

Plaintiff answers counterclaims

1. Rule 7(a)(3): Only these pleadings are allowed: An answer to a counterclaim designated as a counterclaim.
a. an answer to a counterclaim is required
b. if the court orders one
Must deny or admit factual allegations
Same objections and defenses are available to plaintiff as are available to defendants
Defendant cannot respond to reply (not listed in 7(a)). All allegations and defenses are deemed denied.
1. Plaintiff not replying does not = plaintiff agreeing to defendants argument

General Denial
1. 8 (b) (3)

i.

h.

You shouldnt issue a general denial if any part of the pleading is true
Judgment on the Pleading
1. Rule 12(c)

i.

i.

Motion for judgment on the pleadings. After the pleadings are closedbut early enough not to delay triala party
may move for judgment on the pleadings.
1. Based on the pleadings alone; judge can decide no need for a trial
Hearing before trial
1. Rule 12(i)

i.

iii.

If a party so moves, any defense listed in Rule 12(b)(1)-(7)whether made in a pleading or by motionand a
motion under rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.
Amending Pleadings Before Trial
a. Amending as a Matter of Course
1. Rule 15(a)(1)

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i.

A party may amend its pleading once as a matter of course within:

a. 21 days after serving it, or
b. if the pleading is one to which a responsive pleading is required, 21 days after service of a motion
under Rule 12(b), (e), or (f), which ever is earlier
Other Amendments
2. Rule 15(a)(2)

i.

b.

In all other cases, a party may amend a pleading only with the opposing partys written consent or the courts
leave. The court should freely give leave when justice so requires.
1. Amendment is allowed freely as long as it aids presenting the merits
2. Allowed freely so long as the opponent fails to show unfair prejudice
a. Unfair prejudice; caught with pants down
Time to respond to amended pleadings
1. Rule 15(a)(3)

i.

c.

Unless the court requires otherwise, any required response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 14 days after service of the amended pleading whichever
is later.
Amendments during and after trial
1. Rule 15(b)

i.

(1) Based on an objection at trial. If, at trial, a party objects that evidence is not within the issues raised in the
pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when
doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would
prejudice the partys action or defense on the merits. The court may grant a continuance to enable the objecting party
to meet the evidence.

ii.

d.

(2) For issues tried by consent. When an issue not raised by the pleadings is tried by the partys express or implied
consent, it must be treated in all respects as if raised in the pleadings. A party may moveat any time, even after
judgmentto amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to
amend does not affect the result of the trial of that issue.
1. If other side lets you amend it.
Three possible Scenarios for Rule 15(b)
1. Opponent expressly consents

2.

i. Treat as if pleaded and allow amendment anytime

Opponent implicitly consents

3.

i. Treat as if pleaded and allow amendment anytime

Opponent objects
i.

e.

Amendment allowed freely so long as:

1. Will aid in presenting the merits
2. Opponent fails to show unfair prejudice
3. Note the continuance option
Relation back of amendment
1. Rule 15(c)(1)

i.

An amendment to a pleading relates back to the date of the original pleading when:
a. The law that provides the applicable statute of limitations allows relation back; and
b. The amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set outor attempted to be set outin the original pleading; and
c. The amendment changes the party or the naming of the party against whom a claim is asserted,
if Rule 15(c)(1)(b) is satisfied and if, within the period provided by Rule 4(m) for serving the
summons and complaint [normally 120 days from when complaint is filed], the party to be brought
in by amendment:
I. Received such notice of the action that it will not be prejudiced in defending on the merits;
and
II. Knew or should have known that the action would have been brought against it, but for a
mistake concerning the proper partys identity.
III. Majority says that absence of knowledge is not a mistake; better to name someone than
saying you dont know who it is.

iv. FRCP 11
a. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

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1.

Rule 11 has three components

i.

The signature requirement

1. 11(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of
record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by
the partyan unsigned paper shall be stricken unless omission of the signature is corrected promptly after
being called to the attention of the attorney or party.

ii.
iii.

Representations represented by the signature

iv.

Possible Sanctions
1. Fees and expenses incurred by opponent as a result of improper actions
2. A penalty paid to the court
3. Nonmonetary relief

v.

Sanctions for violating those promises

1. 11(c) Opponent can seek them by motion or court can decide on its own to consider them.
2. Either way, the one who might get sanctioned is entitled to notice and opportunity to respond
3. If the sanctions are sought by motion, the motion is to be served but not filed for 21 days
a. Purpose: give the offending party a chance to resolve the problem by withdrawing or amending the
challenged document.

Judge may direct the losing side in Rule 11 motion practice to pay the others fees and costs associated with the
motion

vi.

b.

Cant impose monetary sanctions on a represented party for violating 11(b)(2) (limits on legal arguments); such
sanctions must be assessed on the attorney only.
More on Rule 11
1. Can violate it even without bad faith
2. Other means also exist to control litigation conduct

i.
ii.
iii.
XI.

27 U.S.C. Section 1927: Attorneys financially responsible for any bad faith litigation conduct (not just filings) that
unnecessarily multiply proceedings
FRCP 26(g) & 37: Certification requirements for discovery (similar to Rule 11) and sanctions for their violation
Judges inherent power to sanction parties for bad conduct.

Joinder

a.

Joinder Rules

i. Joinder rules state when multiple claims and/or parties can be in the same lawsuit
a. Court must still have SMJ over each claim
1. Plaintiff brings multiple claims against Defendant
2. Counterclaims; Suit by Defendant against Plaintiff
3. Crossclaims; Suit by Defendant 1 against Defendant 2

b.

FRCP 18(a)

i. (a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as
many claims as it has against an opposing party.
a. Efficiency
1. Save hassle of filing second suit
2. Avoid deciding what are related claims
b. Might facilitate settlement of all claims
1. Chance to resolve all issues at once
2. Can use all claims to bargain

c.

Joinder of Multiple Claims

i. FRCP 18(a)
a. Failure to bring a claim that could have been brought might result in claim preclusion.

d.

Separate Trials

i. FRCP 42(b)
a. For convenience, to avoid prejudice, or to expedite and economize, the court [i.e., the federal district judge] may order a separate trial
of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.
1. The court can also completely sever claims earlier.

e.

Counterclaims

i. A counterclaim is a claim for relief by a defending party against the party who is claiming relief from her.

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a.

Compulsory counterclaims; defendant must bring the claim as a counterclaim. Cannot be brought as a separate lawsuit.
1. FRCP 13(a)
a. Compulsory Counterclaim
I. (1) In General. A pleading must state a counterclaim any claim thatat the time of its
servicethe pleader has against an opposing party if the claim:
II. (a) arises out of the transaction or occurrence that is the subject matter of the opposing
partys claim; and
III. (b) does not require adding another party over whom the court cannot acquire jurisdiction.
IV. (2) Exceptions. The pleader need not state the claim if:
V. (a) when the action was commenced, the claim was the subject of another pending action; or
VI. (b) the opposing party sued on its claim by attachment or other process that did not establish
personal jurisdiction over the pleader on that claim, and the pleader does not assert any
counterclaim under this rule.
2. FRCP 13(b)
a. (b) Permissive counterclaim. A pleading may state as a counterclaim against an opposing party any
claim that is not compulsory.
3. Rationales for Compulsory Counterclaims

i.

Efficiency
1. Same evidence relevant
2. Avoid possible preclusion issues regarding multiple cases

ii.

b.

Might facilitate settlement of all claims

1. Chance to resolve all issues at once
2. Can use all claims to bargain
Permissive Counterclaim; defendant may bring the claim as a counterclaim, or instead may bring as a separate lawsuit.
1. Even unrelated counterclaims may be brought

2.

i. Gives parties a chance to settle all their claims together

Unrelated counter claims often litigated jointly up until trial, but will likely be separated for trial under Rule 42(b)
i.
ii.

f.

Trying the unrelated claims together wouldnt save time (because the evidence and issues are different)
Sorting out the legal rules applicable to the different claims could confuse the jury

What is same transaction or occurrence

i. Courts use four tests

1. Are the issues of fact and law raised in the claim and the counterclaim largely the same?
2. Would res judicata bar a subsequent suit on the partys counterclaim, absent the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute the claim as well as the counterclaim?
4. Is there a logical relationship between the claim and the counterclaim.?
ii. Court must have subject matter jurisdiction over counterclaims
a. Generally there is at least supplemental jurisdiction over related counterclaims
iii. Personal jurisdiction is automatically satisfied for counterclaims
a. Plaintiff waives objection by filing original case
iv. Venue is generally satisfied on counterclaims (via pendent venue if necessary)
a. Exception: Courts often not willing to use pendent venue to circumvent a special venue statute that applies to the counterclaim.
XII.

Crossclaims

a.
b.

Definition: A crossclaim is a claim against a coparty (i.e., by one plaintiff against another plaintiff, or by a defendant against another
defendant)
FRCP 13(g)

i. Crossclaim against a coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim by one party
against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim,
or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is
or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
Permissive Joinder of Parties

XIII.

a.

FRCP 20(a)
a. Persons who may join or be joined
1. Plaintiffs. Persons may join in one action as plaintiffs if:

i.

(a) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and

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ii.
2.

(b) any question of law or fact common to all plaintiffs will arise in the action.
Defendants. Personsmay be joined in one action as defendants if:

i.
ii.
b.

(a) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or occurrences; and
(b) any question of law or fact common to all defendants will arise in the action.

Summary of Rule 20(a)s test

i. Test for joinder: same transaction, occurrence, or series of transactions or occurrences and common question of law or fact
ii. Purpose: Allow litigation of related claims together where the overlap in the evidence on those claims will promote convenience and
efficiency.
a. If same transaction, occurrence, or series of transactions or occurrences is satisfied then there will almost always be a common
question of law or fact
b. Courts differ in how broadly they interpret the test

c.

Joinder of Multiple Claims

i. FRCP 18 (a)
a. In General. A party asserting a claim, counterclaim, crossclaim, or third=party claim may join, as independent or alternative claims,
as many claims as it has against an opposing party.

d.
e.

Once multiple plaintiffs have been joined under 20(a) any plaintiff can assert additional unrelated claims against the defendant
Consolidation

i. FRCP 42(a)
a. Consolidation. If actions before the court involve a common question of law or fact, the court may:
1. Join for hearing or trial any or all matters at issue in the actions;
2. Consolidate the actions; or
3. Issue any other orders to avoid unnecessary cost or delay.

f.

Judicial Control over Litigation

i. Rule 21: On motion or its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a
party.

ii. Rule 20(b): Court may order separate trials to avoid undue expenses, delay, or prejudice.
XIV.

a.

Impleader
A defendant causes the joinder of a third party.

i. Purpose: to bring into the lawsuit a third party who might have to at least partially reimburse the defendant if the defendant is found liable
to the plaintiff.

b.

Impleader claims are brought for

i. Contribution
ii. Indemnity

c.

When a Defending party may bring in a third party (i.e. impleader)

i. Timing of the summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who
is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the courts leave if it files
the third-party complaint more than 14 days after serving its original answer.
a. Cant implead 3rd party who would only be liable to P but not the D.
b. Cant implead 3rd party because they would be liable to D for Ds own injuries.

d.

FRCP 14(a)(2)

i. Once impleaded, a third-party defendant:

a. Must assert any defense against the third-party plaintiffs claim under Rule 12
b. Must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the thirdc.
d.

e.

party plaintiff under rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
May assert against the plaintiff any defense that the third-party plaintiff has to the plaintiffs claim; and
May also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiffs
claim against the third-party plaintiff.

Third-party Defendants Claim against a nonparty

i. FRCP 14 (a)(5)
a. (5) Third-Party Defendants Claim Against a nonparty. A third-party defendant may proceed under this rule against a nonparty who
is or may be liable to the third-party defendant for all or part of any claim against it. (Called a fourth party claim)

ii. FRCP 14(a)(3); Plaintiffs Claims against a Third-Party Defendant

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a.

The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject
matter of the plaintiffs claim against the third-party plaintiff. The third-party defendant must then assert [against the plaintiff] any
defense under Rule 12 and any counterclaim under rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim
under rule 13 (g).
iii. Subject Matter Jurisdiction over claims against Third-Parties
a. Third party claims always share a common nucleus of operative fact with Ps claim against D.
b. But, when plaintiffs assert claims against third-party defendants 1367(b) denies supplemental jurisdiction if the supplemental claims
are trying to piggyback on a claim based on diversity jurisdiction and there would not independently be diversity jurisdiction over the
plaintiffs claim against the third-party.
Intervention

XV.

a.

A third party seeks to participate in a case in which they have not been made a party.

i. Purpose: To allow the third-party to protect its interests in a case, the resolution of which will likely have an effect on the non-partys
interests.
a. Intervenors of Right; have a right to intervene FRCP 24(a)
1. (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

i.
ii.

b.

claims an interest relating to the property or transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless
existing parties adequately represent that interest.
Permissive intervenors; court must allow to intervene FRCP 24(b)
1. (b) Permissive Intervention.

i.
ii.
iii.
b.

is given an unconditional right to intervene by a federal statute; or

In General. On timely motion, the court may permit anyone to intervene who:
a. Is given a conditional right to intervene by a federal statute; or
b. Has a claim or defense that shares with the main action a common question of law or fact.
By a government officer or agency
Delay or prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties rights.

Factors in Allowing Intervention

i. Degree of overlap of the two actions;

ii. How far along the action in which intervention is sought
iii. Impact that intervention would have on the original action

c.

XVI.

Conditions on Intervention
i. Limited intervention is sometimes allowed:
a. Can intervene only on certain claims
b. Not allowed to raise additional claims not raised by original plaintiffs
c. Cannot file certain motions
d. Cannot seek discovery
e. Can intervene only for limited purposes
Discovery

a.

Process of asking others for potential evidence, backed by the authority of the court to compel cooperation
i. You already will have information about the case from
a. Your own client
b. From public information
c. From third parties willing to give it voluntarily
ii. Purpose: allows parties to get information relevant to the case from opposing parties and from third parties
a. Provides evidence for claims and defenses
b. Possibly develops new claims and defenses
c. Allows parties to evaluate strength of case
1. Facilitates settlement
2. Facilitates summary judgment motions
3. Encourages voluntary dismissals

b.

Discovery Devices
i. Depositions
ii. Interrogatories

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iii.
iv.
v.
vi.
vii.
viii.

c.

Requests for Production

Requests for Inspection
Medical Examination
Requests for Admissions
Automatic/Mandatory Disclosures
Subpoenas (for non=parties)

Discovery from Non-Parties

i. Is more limited than discovery from parties

a. Cant use interrogatories
b. Cant use physical exams
c. Affirmative duty not to impose undue burden or expense on non=party
ii. FRCP 45(c)(1)
a. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take

b.

reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanctionwhich may include lost earnings and reasonable attorneys feeson a party or attorney
who fails to comply.
Discovery Scope and Limits
1. FRCP 26(b)

i.
c.

Privileges

1.
2.
3.
4.

Definition: Communications between certain classes of people that do not have to be disclosed in litigation.
Rationale: Free communication in the relationships protected by privileges is more important than the contribution such
information could make to improved accuracy of lititgation outcomes where discoverable.
Relevant rules of evidence must recognize the privilege
Federal and state courts vary widely regarding:

i.
ii.
5.

e.

f.

Which privileges they accept

The scope of the privileges they do accept

Examples of Privileges

i.
ii.
iii.
iv.

d.

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any partys claim or defense

Attorney-Client
Doctor-Patient
Priest-Penitent

Husband-Wife
Rule 501. General Rule
1. Privilegeshall be governed by the principles of the common law as they may be interpreted by the courts of the United
States in the light of reason and experience.
2. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies
the rule of decision, the privilegeshall be determined in accordance with State law.
Waiver of Privilege
1. Only the person holding the privilege can waive it (or assert it)
2. General Rule: Once privileged information has been voluntarily disclosed, the privilege is waived as to all
communications of the same information.
Attorney-Client Privilege
1. A clients privilege to refuse to disclose, and to prevent any other person from disclosing, certain confidential
communications between the client and his or her attorney.
2. Purpose:

i.
ii.
3.

Facilitate best legal representation by encouraging full and frank communication between attorneys and their clients

In doing so, is good for society because it helps promote observance of law and administration of justice
Elements;

i.
ii.
iii.
iv.

Holder of the privilege was a client or prospective client at the time of communication
Holder was communicating with an attorney (or agent thereof) acting in capacity as a lawyer
No third party was also part of the communication
Communication was primarily for purposes of obtaining legal advice or services

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v.
vi.

g.

Communication not intended to further crime or tort

Holder has not waived the privilege

Attorney Work-Product Doctrine
1. Rule that protects materials prepared in anticipation of litigation from discovery.
2. Purpose: Encourages attorneys to prepare for litigation by most effective and efficient means.

i.

iii.

FRCP 26(b)(3)
a. Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for trial by or for another party or its
representative. But subject to rule 26(b)(4) [trial preparation of experts] those materials may be
disvoered if;
I. They are otherwise discoverable under Rule 26(b)(1); and
II. The party shows that it has substantial need for the materials to prepare its case and cannot,
without undue hardship obtain their substantial equivalent by other means.
b. Protection against Disclosure. If the court orders discovery of those materials [i.e., even if the two
part test is satisfied], it must protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a partys attorney or other representative concerning the litigation.
Anticipation of Litigation
a. Work product must have to have been prepared in anticipation of litigation
1. Broad definition of litigation

i.

b.
c.

d.

e.

Includes any adversary court or administrative proceeding such as

1. A civil action
2. Criminal case
3. Grand jury proceeding
4. Administrative hearing

ii. Litigation need not have commenced

Minority view: Documents must be prepared primarily or exclusively to assist in litigation.
1. Courts differ on whether a specific claim has to be in mind
Majority Rule; Prepared because of litigation
1. i.e., if in light of the nature of the document and the factual situation in the particular case, the document can fairly be
said to have been prepared or obtained because of the prospect of litigation.
Factors:
1. How document is labeled
2. Whether a lawyer participated in the preparation
3. Whether the document comments on litigation
4. Whether it has an ordinary business purpose (such as fulfilling regulatory requirements)
Overcoming Work Product Protection
1. Party seeking the material must show:
i.

Substantial need for the materials

1. Relevance is not enough
2. Desire to avoid overlooking anything is not enough
3. Needing the materials to establish or defeat an essential element of a claim or defense is enough

ii.

f.

g.

Cannot, without undue hardship obtain their substantial equivalent by other means
1. Examples: statements of witness who are now dead, memory-impaired, or beyond the courts reach
What is needed to force disclosure of opinion work product?
1. At least a far stronger showing of necessity and unavailability by other means than is usually sufficient to overcome the
work product protection for ordinary or factual work product is needed to force disclosure of opinion work product.
Establishing Existence of a Privilege
1. Persons asserting a privilege has burden of establishing its existence
2. Some courts require the party claiming the privilege require to provide a privilege log that describes

i.
ii.

Describes the reasons why the privilege applies

Some courts have even required the allegedly privileged documents to be submitted to the judge for review.
Claiming Privilege or Protecting Trial-Preparation Materials
1. FRCP 26(b)(5)

3.

h.

Describing in detail the document or information sought to be protected

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a.

i.

Information Withheld. When a party withholds information otherwise discoverable by claiming that
the information is privileged or subject to protection as trial-preparation material, the party must:
I. Expressly make the claim; and
II. Describe the nature of the documents, communications, or tangible things not produced or
disclosedand do so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.
Effect of Inadvertant Disclosure of Privileged Material
1. Some courts say it constitutes a waiver
2. Some courts say it is not a waiver
3. Some courts say it is not a waiver when there was no intent by the disclosing party to obtain an advantage
4. Balancing test based on factors such as

i.
ii.
iii.
iv.
XVII.

a.

Extent of precautions taken to avoid disclosure

Extent of disclosure
Amount of time it took the disclosing party to rectify the error
Interests of justice
1. If the court holds that no waiver has occurred, the party who received the privileged document is required to
return or destroy it. [Rule 26(b)(5)(B) gives federal approach]

Discovery Devices
Automatic/Mandatory Disclosures

i. FRCP 26(a)(1) Initial Disclosures

a. In general. Except..as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the

ii.

iii.
iv.

b.

other parties:
1. The name and, if known, the address and telephone number of each individual likely to have discoverable information
alone with the subjects of that informationthat the disclosing party may use to support its claims or defenses, unless the
use would be solely for impeachment.
2. A copyor a description by category and locationof all documents, electronically stored information, and tangible
things that the disclosing party has in its possession, custody, or control and may use to supports its claims or defenses,
unless the use would be solely for impeachement.
3. A computation of each category of damages claimed by the disclosing partywho must also make available for
inspection and copyingthe documents or other evidentiary material, unless privileged or protected from disclosure, on
which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
4. For inspection and copyingany insurance agreement under which an insurance business may be liable to satisfy all or
part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
Rule 37 (c)(1) Failure to Disclose: Sanctions
a. (1) failure to disclose or supplement. If a party fails to provide information or identify a witness as required by Rule 26(a)the party
is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.
At least 90 days before trial, parties must disclose expert trial witnesses and their reports.
At least 30 days before trail, parties must make mutual pretrial disclosures by exchanging lists of witnesses they expect to call and
exhibits they intend to introduce at trial.

Requests for Production/Inspection

i. Producing Documents, Electronically Stored Info and Tangible Things: In General

a. Rule 34(a)
1. (a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

i.

ii.

to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following the
items in the responding partys possession, custody, or control:
1. (a) any designated documents or electronically stored informationincluding writings, drawings, graphs,
charts, photographs, sound recordings, images, and other data or data compilationsstored in any medium
from which information can be obtained either directly or, if necessary, after translation by the responding
party into a reasonably usable form; or
2. (b) any designated tangible things
Requests for Production/Inspection
a. Documents requests can be focused on particular known items or broadly seek information in categorical terms.
b. Receiving party must either produce the requested material or give grounds for objection in writing (e.g., privilege, relevance) within
thirty days, unless the court or the parties stipulated to a different time (which often occurs)
c. In discovery dispute, parties must meet to attempt to resolve dispute before asking the court to get involved.

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d.

e.

f.

c.

Most produce documents either

1. As kept in the ordinary course of business, or
2. Sorted by category in response to the requests
Location of document production
1. Often made at the requesting partys office
2. Large productions often made at the producing partys location (for practical reasons)
Inspections of land, and large or immobile objects, usually is where the land lies or the object is kept.

Interrogatories

i. Written questions that the opposing party must answer in writing under oath
a. Advantages
1. Less expensive than depositions
2. Can get answers to questions that someone wouldnt know off the top of their heads at a deposition (e.g., might need to
review files to answer)
Disadvantage
1. In reality, attorney will write answer in least helpful way possible.
Interrogatories in General
a. Rule 33(a)
1. Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25
written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the
extent consistent with Rule 26 (b)(2).
2. Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not
objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but
the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial
conference or some other time.
Contention interrogatories
a. Interrogatories that generally require the responding party to state the basis of particular claims, defenses or contentions made in
pleadings or other documents
b. Purpose is to help identify strengths and weaknesses of claims and defenses, and areas for additional discovery
c. Court can delay required answers to contention interrogatories, because might need discovery before answering them.
Rule 33 Summary
1. Receiver has 30 days to answer (or give objections) unless a different date is agreed to by parties or ordered by court
2. Answers must be in writing, signed by party answering them, and are made under oath
3. If answer to interrogatory can be determined from a partys business records, and the burden of doing so will be
substantially the same for either party, instead of answering the interrogatory, you can specify which records must be
reviewed and give the other party an opportunity to copy those records.

b.

ii.

iii.

iv.

d.

Depositions

i. Attorney questions a party or witness, who must answer under oath

a. Purposes:
1. Discover facts
2. Pin down testimony (so cant change later without looking very bad)
3. Preview into how witness will appear at trial
4. Preserve testimony of witnesses who may be unavailable at trial
5. Authenticate documents (e.g., show it satisfies business records exception to hearsay rule).
ii. Permissible Uses of Depositions at Trial
a. FRCP 32(a)
1. To impeach a witness
2. A substitute for trial testimony for unavailable witnesses

i.
ii.
iii.
iv.
v.

Too sick
Too old
In prison

More than 100 miles away

An adverse party may use any purpose the deposition of a party or anyone who, when deposed, was the partys officer,
director, managing agent or designee. Note: Still must comply with rules of evidence
Who can be deposed

3.

iii.

Dead

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a.

iv.

v.

vi.

vii.

e.

FRCP 30(a)
1. Without leave. A party may, by oral questions, depose any person, including a party, without leave of court except as
provided in Rule 30(a)(2). The deponents attendance may be compelled by subpoena
Duration of Deposition
a. FRCP 30(d)(1)
1. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow
additional time consistentif needed to fairly examine the deponent or if the deponent, another person, or any other
circumstances impedes or delays the examination.
Defending a Deposition: Objections
a. FRCP 30(c)(2)
1. An objection at the time of the examinationwhether to the evidence, to a partys conduct,to the manner of taking the
deposition, or to any other aspect of the depositionmust be noted on the record, but the examination still proceeds; the
testimony is taken subject to any objection.
2. An objection must be stated concisely in a nonargumentative and nonsuggestive manner.
3. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation
ordered by the court, or to present a motion under Rule 30(d)(3) [to terminate or limit a deposition because it is being
conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent].
Motion to Terminate or Limit Deposition
a. FRCP 30(d)(3)
1. (a) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that
it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or
party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting
deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
Deposition Sanctions
a. FRCP 30(d)(2)
1. The court may impose an appropriate sanctionincluding the reasonable expenses and attorneys fees incurred by any
partyon a person who impedes, delays, or frustrates the fair examination of the deponent.

Physical and Mental Examinations

i. Order for Physical and Medical Exams

a. FRCP 35
1. Physical/mental condition must be in controversy
2. Must make motion demonstrating good cause

i.
ii.
iii.
3.

Risk and degree of harm to the examinee

Existence of alternatives
Not allowed for non-parties who are not in custody or under the legal control of a party.

i.
f.

Need for the information

Example of an exception: minor child involved in custody or paternity suit when condition or blood typoe of child is
an issue

Requests for admissions

i. Written consent that opposing party make a formal admission in writing

ii. Purpose;
a. Narrow issues in dispute by establishing some issues as being uncontested
b. Often used to establish the authenticity of specific documents that will be used at trial
iii. No limit on number
iv. Can only be given to parties
v. Requests for Admission: Scope
a. FRCP 36(a)
1. Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth
of any matters within the scope of Rule 26(b)(1) relating to:

i.
ii.

(a) facts, the application of law to fact, or opinions about either; and
the genuineness of any described documents.

vi. Possible Responses to Requests for Admission

a. FRCP 36(a)
1. Object

i.

FRCP 36(a)

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1.

2.

(5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the
ground that the request presents a genuine issue for trial.

Admit

i.

3.

4.

FRCP 36(b)
1. (b) Effect of an Admission; Withdrawing or Amending it. A matter under this rule is conclusively
established unless the court, on motion, permits the admission to be withdrawn or amended.
Deny

i.
ii.

Denial must fairly respond to the substance of the matter;

i.
ii.

Must state that you have made reasonable inquiry

If only denying part, must specify which part (same if qualifying answer)
Neither admit or deny because of lack of knowledge or information
Must state that the information that you know or can readily obtain is insufficient to enable [you] to admit or deny
the requested admission.

vii. Time to Respond

a. FRCP 36(a)
1. (3) Time to Respond; Effect of Not Responding. A matter is admitted unless within 30 days after being served, the party

XVIII.

to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and
signed by the party or its attorney.
Summary Judgement

a.

Purpose: Avoid trial of the whole case or of certain issues (partial summary judgment) if the record indicates that there is nothing for the
factfinder to decide.

b.
c.
d.

Motions for summary judgment are usually brought by defendant

Motions for summary judgment are usually decided after completion of discovery
Timing of Motion

i. Rule 56 (b)
a. (b) Time to file a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for
summary judgment at any time until 30 days after the close of all discovery.

e.

Standard

i. Rule 56(a)
a. Motion for summary judgment or partial summary judgment. A party may move for summary judgment, identifying each claim or
defenseor the part of each claim or defenseon which summary judgment is sought. The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
The court should state on the record the reasons for granting or denying the motion.
1. In other words, grant summary judgment if no reasonable fact-finder could find for the non-moving party.

f.

Proof

i. Rule 56(c)
a. (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
1. (a) citing to a particular parts of materials in the record, including depositions, documents, electronically stored

2.

g.

information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(b) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.

Non-moving party may win with silence

i. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be
XIX.

b.

denied even if not opposing evidentiary matter is presented.

Civil Trial Procedure
i. Jury Selection
ii. Opening Statement from each party
iii. Plaintiffs case through direct examination of witnesses (defendant may cross-examine; plaintiff may re-examine) and defendants case
through direct examination
iv. Closing arguments by each party (summarizes its case)
v. Judge gives jury instructions (jury charge) regarding substantive law should apply
vi. Jury Verdict
Judicial Gatekeeping Mechanisms

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i. Motions to dismiss under Rule 12(b)(6) (complaint fails to state a claim)
ii. Motion for summary judgment under Rule 56 (no genuine issue of material fact remains to be litigated)
iii. Motions for judgment as matter of law.

c.

Judgment as Matter of Law (JMOL)

i. The motion for JMOL argues that the evidence is insufficient for a reasonable jury to reach a verdict for the other party.
a. The court does not weigh the evidence
b. Court does not judge the credibility of the witnesses
c. Court construes all reasonably doubts against the movant
d. If the court grants a motion for JMOL, the court takes the case from the jury and decides itgrants judgmentas a matter of law.
ii. Motion for Directed Verdict
a. FRCP 50(a)
1. In general. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would

iii.

iv.

not have legally sufficient evidentiary basis to find for the party on that issue, the court may:
a. Resolve the issue against the party; and
b. Grant a motion for judgment as a matter of law against the party on a claim or defense that, under
the controlling law can be maintained or defeated only with a favorable finding on that issue.
2. Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The
motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
Purposes for Motions for JMOL
a. Ensures (to the extent possible) that case is decided on its merits rather than on an inadvertent omission of trial testimony
1. Notify non-moving party that (s)he has failed to offer evidence concerning a key element of her case, thus giving her an
opportunity to correct the omission
2. Judge often allows non-moving parties to recall witness to offer missing testimony
b. Saves time of court, jury, and parties if non-moving party lacks key evidence
Judgment notwithstanding the Verdict (JNOV)
a. FRCP 50(b)
1. (b) If the court does not grant a motion for judgment as a matter of law made under rule 50(a), the court is considered to
have submitted the action to the jury subject to the courts later deciding the legal questions raised by the motion. No later
than 28 days after the entry of judgmentor if the motion addresses a jury issue not decided by a verdict, no later than 28
days after the jury was dischargedthe movant may file a renewed motion for judgment as a matter of law and may
include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

i.
ii.
iii.

allow judgment on the verdict, if the jury returned a verdict

order a new trial; or
direct the entry of judgment as a matter of law.

v. More Info on JMOL

a. Judges are reluctant to grant JMOL
b. Judges are less reluctant to grant renewed motions under 50(b)
c. Why not grant summary judgment earlier instead?
1. Might have had little discovery
2. Trial testimony might have been weaker than deposition testimony
XX.

New Trial

a.

FRCP 59

a.

In General

1.

Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issuesand to any partyas
follows:

i.
ii.
b.

(a) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal
court; or
(b) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal
court.

What is the Standard for New Trial?

i. Courts wording differs

a. against the weight of the evidence
b. seriously erroneous
c. clearly erroneous
d. miscarriage of justice

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c.

Grounds for Ordering New Trial

Jurys verdict was against the great weight of evidence.
Excessive damages
Conduct of trial was unfair (e.g., attorneys closing argument appealed to racial or religious prejudice)
Erroneous admission or exclusion of evidence
Erroneous jury instructions
Newly discovered evidence

i.
ii.
iii.
iv.
v.
vi.

d.

e.

Summary: Motion for New Trial

i. Court assumes that there was sufficient evidence to reach the jury
ii. Issue is whether that verdict is nevertheless clearly erroneous, either because
a. It is against the weight of evidence or
b. Because it was (or could have been) the product of a flawed trial process
iii. Court can weigh the evidence and assess credibility
iv. Court does not have to resolve doubts against the movant
v. If Court grants a new trial, it rejects the first jurys verdict, but it does not decide the case as a matter of law
vi. Instead the parties present the case to a new jury
More on New trial

i. Courts are more likely to grant new trial when the trial was lengthy, complicated, and involved subject matters outside the ordinary
knowledge of the jurors

ii. Appellate courts are very deferential to trial courts decision on motion for new trials (Rationale: trial judge was at the trial and thus knows
the harm caused by the error at trial)

iii. Rule 59 allows partial new trials

a. Ex. Just on certain claims or on damages.

f.

Remittur

i. In the case of excessive damages award, the court can give the prevailing party the option of a new trial or accepting a reduced damages
award (i.e., the prevailing party remits the excess portion of the verdict)
a. Constitutional rationale; doesnt offend 7th amendment right to jury because the verdict after remittitur was part of the original jury
verdict (the part supported by the evidence)
b. If party remits the excess, they cant appeal
c. The party that made the motion for a new trial may appeal

g.

Additur

i. Court gives defendant the option of paying more than the verdict or having a new trial.
a. Not allowed in federal court
1. Rationale: the amount in excess of the verdict (the additur) is not part of the jurys original verdict.
b. The party that made the motion for new trial may appeal

h.

Summary of Rule 50 (b), (c), (e)

i. After the jurys verdict FRCP 50(b) allows losing party to make renewed motion for JMOL and, in the alternative, for a new trial.
ii. 50(c) requires trial court granting a renewed motion for JMOL to also conditionally rule on whether a new trial should be granted (in case
the JMOL is reversed on appeal)

iii. 50(e) states that if the trial court denies a motion for JMOL and this denial is appealed, the appellee may also assert grounds for a new trial
in case the appellate court reverses (i.e., appellate court can choose between JMOL and new trial)
a. basically all of these just give the option to the choice of JMOL or new trial

i.

Claim Preclusion aka Res Judicata

Parties cannot relitigate claims that they fully litigated (or could have fully litigated) in a previous case
Usually is a common law doctrine
Exact scope varies a little across jurisdiction
Rationales
a. Unfair to let parties get a second chance to recover on the same claim
b. Disputes need final resolution
c. Efficiency
d. Preserves public confidence in the justice system (i.e., prevents inconsistent decisions)
v. Claim preclusion does not apply to:
a. Retrials ordered by the appellate court
b. Collateral proceedings (e.g., action to enforce a judgment in a court in another state)

i.
ii.
iii.
iv.

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Criminal cases, but Fifth Amendments Double Jeopardy Clause precludes an acquitted defendant from being retried for the same
offense.
Assertion of Claim Preclusion
a. Claim preclusion is an affirmative defense that may be waived if not raised in a responsive pleading FRCP 8(c)
b. However courts have allowed it to be raised fro the first time in a summary judgment if it does not unfairly prejudice the defendant
Raising Claim Preclusion Sua Sponte
a. Courts may raise it sua sponte in special circumstances, e.g., court knows it has already decided claim
b. Rationale for allowing sua sponte:
1. Claim preclusion is partly based on efficiency concerns
c. Not a jurisdictional defect, so no obligation to raise it sua sponte.
Courts (Federal) will typically use the state law for claim preclusion where the original case was decided/brought.
Exception to transactional test; no preclusion if the plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy
or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority
to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second
action to rely on that theory or to seek that remedy or form of relief
Claim Preclusion Requirements
a. Prior suit concluded in a valid, final judgment on the merits
b. The claims in the subsequent suit either
1. Are the same as in the prior suit, or
2. Could have been raised in the prior suit

c.

vi.

vii.

viii.
ix.

x.

i.

xi.

xii.

xiii.

xiv.

Restatement of Judgments:
1. Claim preclusion is a rule against the splitting of actions that could have been brought and resolved
together
c. The parties in the subsequent suit either are
1. the same as those in the prior suit, or
2. in privity with a party in the prior suit
Same Claim Requirement
a. Most courts say claim in subsequent suit must
1. Have been available to the plaintiff in the prior suit (i.e., could have been raised in the prior suit)
2. And meet transactional test
b. The claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of
the transaction, or series of connected transactions, out of which the action arose. Nestor v. Pratt & Whitney
Transactional Test
a. Is at least very similar to the test as for compulsory counterclaim
b. Many courts refer to same nucleus of operative facts
c. Common factors examined
1. Whether the underlying facts in prior and subsequent suits are related in time, space, origin, or motivation
2. Whether the claims form a convenient trial unit
3. Whether treatment as a unit conforms to parties expectations or business understandings.
Same Parties Requirement
a. The parties in the subsequent suit must either be
1. The same as those in the prior suit, or
2. In privity with a party in the prior suit
Non-Party Preclusion
1. A person who agrees to be bound by the determination of issues in an action between others is bound in accordance with
the [agreements] terms.
2. Non-party preclusion may be based on a pre-existing substantive legal relationship between the person to be bound and a
party to the judgment e.g., assignee and assignor.
3. In certain limited circumstances, a non-party may be bound by a judgment because she was adequately represented by
someone with the same interests who was a party to the suit [e.g., class actions].
4. A non-party is bound by a judgment if she assumed control over the litigation in which that judgment was rendered.
5. Party bound by judgment may not avoid its preclusion force by relitigating through a proxy. Preclusion is thus in order
when a person who did not participate in litigation later brings suit as the designated representative or agent of a person
who was a party to the prior adjudication.
6. A special statutory scheme otherwise consistent with due processe.g., bankruptcy proceedingsmay expressly
foreclose successive litigation by non-litigants.

Moore
xv. Valid Judgment
1. Prior suit must have concluded in a valid, final judgment on the merits.

i.

Prior judgment is generally not valid if subject matter jurisdiction, personal jurisdiction, or venue was lacking.
1. Exception: the defendant responded to the lawsuit and both parties litigated the case without raising the
jurisdictional problem.
2. But, there are exceptions to the exception (e.g., state c

xvi. Final judgment

a. Prior suit must have concluded in a valid, final judgment on the merits.
1. Most courts say a trial judgment is final even if it is being appealed

i.

If prior judgment is later overturned on appeal, party can usually set aside the second courts claim preclusion
dismissal by filing a post-judgment motion or timely appeal)

xvii. On the merits

a. Rationale: parties should have an opportunity to address the merits of their claim
b. Examples of not on the merits
1. Case dismissed for lack of subject matter jurisdiction
2. Case dismissed for lack of personal jurisdiction
3. Case dismissed for improper venue
c. Examples of on the merits
1. Jury or bench trial verdict
2. Summary judgment
3. Judgments as a matter of law
4. Failure to state a claim (sometimes)
5. Default judgments (most courts)
6. Statute of limitations (trend toward this)
d. Restatement of Judgmentsbut not courtshave dropped phrase on the merits because judgments not passing directly on the
substance of the claim have come to operate as a bar

xviii. Issue Preclusion

a. Protects from bringing up a specific issue
b. Applies where claim preclusion doesnt apply
c. Elements
1. Issue in second case must be the same as an issue in the first case

i.
ii.
2.

Can be an issue of fact, ultimate fact (i.e., application of law to fact), or law

A different grounds for a claim/defense generally is a different issue

The issue was actually litigated in the first case

i.

An issue can be actually litigated if it is decided in a

1. Trial
2. Motion to dismiss for failure to state a claim
3. Summary judgment
4. Judgment on the pleadings
5. Judgment as a matter of law/ directed verdict
6. Judgment not withstanding the verdict (renewed JMOL)

ii.
iii.

A written stipulation by a party that the party owns BlackacreNo

iv.

A default judgment against a non-appearing party in a nuisance suit based in part on the allegation that the party
owns BlackacreNo

An admission under Rule 36 (RFA) that the party owns BlackacreNo

1. An admission under this rule is not an admission for any other purpose and cannot be used against the party
in any other proceeding.

v.
3.

A confession to the police by Smith that he hit Jonesthis is evidence that can be used against you; but does not
preclude.
The issue was actually decided in that action.

i.

ii.

Explicitly decided
1. In federal court bench trials, judge must make express, written findings of fact (Rule 52(a))
2. In jury trials, jury might give special verdict or general verdict with written questions
3. Non-court proceedings (e.g., arbitrators) also often state factual findings
Implicitly decided

Moore

4.

1. Logically inferred from the decision (i.e., an issue had to be decided in a certain way to reach that decision)
The decision on the issue was necessary to the courts judgment in the first case essential to the judgment

i.
ii.

5.

If court finds verdict based on two possible facts then neither is issue precluded
1. i.e., plaintiff was negligent and defendant was not negligent
a. contributory negligence and innocence of the defendant are both reasons for finding verdict
I. therefore neither is precluded
II. since judge may have not thought explicitly about both counts since they both weigh in
favor of the same verdict
III. some courts say both were essential to judgment; therefore both precluded
A person against whom the conclusive effect of a judgment is involved was a party or a privy in the first case

i. If issue preclusion applies, the fact-finder in the second case is instructed to take the issue as established.
Is a equitable doctrine, so court has discretion to deny preclusion if it would be unfair in the particular circumstances of the case.
1. For example; the precluded party must have had a full and fair opportunity to litigate the issue in the first case.
e. Courts will give preclusive effect to decisions of non-courts (arbitrators, quasi-adjudicative administrative agencies such as workers
compensation board hearings and lawyer disciplinary proceedings) if the process of the non-court was good enough, i.e.,
1. It gave the precluded party a full and fair opportunity to make his/her case, and
2. Its fact-finding abilities were at least equivalent to those of a judge or jury.
Final Info
a. 30 multiple choice questions; FRCP, personal jurisdiction
b. 1 subject matter jurisdiction essay: 25%
c. 1 personal jurisdiction essay: 25%
d.

xix.

Things that are used essentially in making the decision in the original case.