CIVIL PROCEDURE OUTLINE

UCLA SCHOOL OF LAW

PROFESSOR RUBENSTEIN
FALL 2003
LAURIE WILSON

PERSONAL JURISDICTION
Statutory basis (Traditional bases, implied consent, long-arm statute (4k1A))
Constitutionally permissible (Minimum contacts (general or specific j), FP&SJ)
PROCEDURAL DUE PROCESS
Notice (in statute / reasonably calculated)
Opportunity to be Heard (property deprivation)
PJ
SUBJECT MATTER JURISDICTION
Diversity Jurisdiction (1332)
Federal Question (1331) (face of the complaint)
Supplemental Jurisdiction (1367)
Removal (1441)
VENUE
Diversity and Federal Q (1391)
Transfer (1404(a))
FNC (Gilbert Test)
Erie (State substantive law)
Van Dusen (choice of law rules)
PLEADINGS
Complaint, answer, waiver, amendment
Truthful allegations (FRCP 11)
JOINDER
Counter, cross
Impleader, intervention
Necessary & Indispensable
Class Action
DISCOVERY
Disclosures
SUMMARY JUDGMENT
Question of material fact
JUDGMENT
Jury
DV, JNOV, New trial
Appeal
Preclusion (claim, issue)
ALTERNATIVES TO LITIGATION

12(b)(1): Lack of SMJ

12(b)(2): Lack of PJ
12(b)(3): Improper venue
12(b)(4): Insufficient process
12(b)(5): Insufficient service of process
12(b)(6): Failure to state a claim upon which relief can be granted
12(b)(7): Failure to join a party under FRCP 19
12(e): Motion for more definite statement
12(f): Motion to strike
12(g): Must consolidate defenses 12(b)(2) (5) into one motion
Timing (from FRCP 12(g) and (h)):
12(b)(2)-12(b)(5): must be brought in pre-answer motion or in answer or are waived
12(b)(6) and 12(b)(7): may be brought later, at any time during trial
12(b)(1): lack of SMJ may be brought any time, even on appeal (Capron)

I.

PERSONAL JURISDICTION
A.

Overview
PJ is purely geographical. The forum state (place where case is brought) must have PJ over the individual or
organization. PJ is based on basic notions of fairness and efficiency.
Traditionally, s could be required to litigate suits only in states where they resided, were physically present, or
owned property (Pennoyer). The doctrine expanded so that merely driving through a state became a basis for PJ
(Hess). States also developed long-arm statutes to allow for service of process on people not physically present in
the state. The SC also introduced the doctrine of minimum contacts with the forum state as a basis of PJ (Intl
Shoe).
Types of PJ:
1) In personam (consent, presence, property)
2) Quasi in rem (binds person up to value of rem)
3) In rem (binds anyone located anywhere based on property in forum state)
Can assert PJ over person:
1) By consent (implied consent - Hess)
2) By presence (Burnham)
3) By property (Pennoyer; updated in Shaffer)
Intl Shoe Test:
Minimum contacts (purposeful availment + foreseeability (derive benefits)) + FP&SJ (5 factors)

Pennoyer
Hess
Shoe
Gray
McGee
Hanson

B.

WWVW
Burger King
Asahi
Helicopteros
Shaffer
Burnham

Narrows purp. avail: anticipat lit

SJ C/A arises continuous activ
DP not constit (not FP&SJ)
C/A didnt arise out of TX conta.
Stock not property (DE change)
Presence

Bauxites
Bremen
Carnival
Pavlovich
Tickle
Marathon

Waived PJ
Uphold forum selection clause
Forum selection clause
Juris over active websites
No trickery to get presence
Can decide SMJ or PJ first

Rules

C.

Trad bases: pres, prop, cons

Implied consent
Min contacts / FP&SJ
Benefits from state/foreseeab
SJ C/A arise from sing cont
Purposeful availment

4(k)(1)(A): Federal ct and state ct have same PJ: Service of process can only be served to person within the
state where the federal court is located; limits power of the federal court; federal court has no more power over
PJ than state ct (Tickle v. Barton Service not valid if served fraudulently, even in state)
4(k)(1)(D): Federal question cases can give fed cts different reach when authorized by Congress
4(k)(2): permits service on a against whom federal law claims are made in cases which is not subject to the
jurisdiction of a single state, and it is constitutionally permissible
12(b)(2): motion to dismiss on grounds of lack of PJ
Marathon Oil court can decide either SMJ or PJ first, since both are constitutional concerns

Types of Jurisdiction
1.

2.
3.
4.

In personam
Court has PJ against a person via his presence, citizenship or consent. Two types:
a. General: can be sued in the forum state for any claim arising anywhere
b. Specific: can only be sued for claims arising in the forum state
In rem
Direct action against the property to determine who owns the title
Quasi in rem
Court renders a jment for/against a person but limits recovery to the value of property within forum state. The
suit attaches the property in order to get in personam jurisdiction.
Pennoyer v. Neff traditional bases of PJ (presence, property, consent)
Neff sued Pennoyer to recover property seized in previous suit (Mitchell v. Neff). Mitchell was brought to recover
legal fees; Neffs property was attached to gain PJ over him. Ct held that

Bases of PJ: presence, property and citizenship

State sovereignty: state court only has power over people and property within state lines

D.

Could only have in personam jurisdiction over non-resident if he was served in the state (notice by
publication not enough; must find within state lines)
Only can have in rem jurisdiction if property is seized at the outset
Values upheld: Due process (individual rights), federalism (state sovereignty)

Expanding the Bases of PJ (breakdown of Pennoyer)

1.

2.

Hess v. Pawloski Implied consent

Hess injured Pawloski on a MA public highway. MA statute declares that nonresidents consent to appt of MA
registrar as agent for service of process. Hess claimed that violated his due process rights. Court upheld
statute, as long as is sent notice by state registrar.

Implied consent to address advent of easier transportation

Limited extension of jurisdiction to non-residents

International Shoe Co. v. Washington Min contacts + FPSJ
Intl Shoe employed salesmen in WA but claimed not to be subject to WAs jurisdiction when state tried to collect
unemployment taxes. Intl Shoe was incorporated in DE with primary place of business in MO. WA served
notice to WA salesman and MO HQ. Intl Shoe challenged PJ, claiming that salesman was not an agent and
Shoe was not doing business in or present in WA. Ct held that corporation is subject to PJ if it has certain
minimum contacts with that state to make the exercise of PJ comport with traditional notions of fair play and
substantial justice.

Establishes minimum contacts test: whether corp. that conducts activities within a state also enjoys the
benefits and protections of that states laws

Gives state power to protect and help its own citizens

Requires systematic and continuous contacts with the state, or a isolated contact when it relates directly
to issue of suit

Overturns in personam part of Pennoyers holding (presence test replaced by minimum contacts)

Two part test: minimum contacts and FPSJ

Spectrum of contacts:

extent of
contacts:

none . . . . . . . . . . casual/isolated . . . . . . . . . . . single . . . . . continuous but limited . . . substantial

jurisdictional
consequence:

G
no jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . specific jurisdiction . . . . . . . . . . general jurisdiction
decreasing contacts

increasing contacts

Left: State has little or no authority to exercise PJ over unless consents. Casual or isolated acts are
insufficient to support PJ. Single acts by their quality and nature will support specific in personam jurisdiction
(jurisdiction over claims arising from that single act; McGee), as will continuous but limited activity in forum
state (see Burger King) in each case is only subject to PJ for claims arising out of those minimum
contacts.
Right: substantial contacts, which subject to general in personam jurisdiction meaning may be sued in
state for any claim, even one completely unrelated to its in-state activities (Helicopteros Internacionales), but
the SC has not established where contacts support general vs. specific in personam jurisdiction (G).
E.

Long-Arm Statutes
1.

TWO PART TEST to determine when asserting PJ over a person:

a. Is there a statutory basis? A state may grant its courts PJ up to the constitutional limit, but doesnt have
to.
i.
Traditional bases (every state)

Serve process in the state (Burnham) tag jurisdiction

Grab property in QUIR juris (Shafer, once DE law was enacted)

ii. Implied consent (some states)

Driving through state (Hess)

iii.

2.

3.

4.

F.

Long-arm statutes (every state has a version, since Shoe) w/reasonably calculated notice
Two types: (statute may also specify type of notice)
1) CA type: allows jurisdiction up constitutional limits
2) More common: laundry list statutes granting PJ over certain things, such as entering a K in the
forum state, transacting business in the forum state, owning property, etc.
b. Is it constitutional? Statutes (and long-arms) must not violate 14th A due process (Asahi)
i.
Determine meaning of long-arm and then ask if it is consistent with DP by applying Intl Shoe minimum
contacts and FJ & SJ (5-parts)
Gray v. American Radiator & Standard Sanitary Corp. Benefits from state laws/foreseeability
OH co. (Titan) made defective valve, used in mfg water heater in PA (American), which was sold in IL, where it
exploded. American filed cross-claim against Titan. Titan claims it conducted no business in IL. Titan was
served through IL long-arm, authorizing service of process on out-of-state actors who commit a tortious act within
the state. Ct held that most recent event (injury) constitutes the tort, stretching to say tort happened in OH.
Shoe minimum contacts test satisfied even when a corp. conducts no business within the state, as long as the
act giving rise to the lawsuit has a substantial connection to the state. New conceptualization of minimum
contacts, that if Titan benefits from state (contemplated that products would be sold there, thus profit there and
benefit from laws), it should have to answer to its courts; comports with notions of FP&SJ. Ct held that long-arm
doesnt violate DP values of notice to nonresidents and opportunity to be heard. Decision criticized because
Titan could not have foreseen tort in IL, and tortious act actually took place in mfg state (PA).

Two step analysis: (1) statutory basis: T falls within reach of IL statute because injury took place there; (2)
FP&SJ: Ts products ended up in IL through stream of commerce
McGee v. Intl Life Insurance C/A arises out of single contact; 4-factor test for FP&SJ, following Shoe
Beneficiary of insurance policy sued in insurance company (based in TX) in CA ct when refused to pay. TX
courts refused to endorse jment. SC held that a state can exercise specific in personam jurisdiction over a party
with only a single contact with that state, provided it is the contact that gives rise to claim.
Four factors determined if FP&SJ were upheld:

solicited business in CA

s single contact gave rise to s claim

CA had interest in the matter (protect its citizens from being swindled by nonresidents)

CA was a convenient forum

Hanson v. Denckla Purposeful availment
Claimants to DE trust files suit against trustee (DE bank) in FL, claiming trust invalid under FL law. The
beneficiary moved to FL, and her beneficiaries brought suit in FL. SC upheld DE ct holding that FL had no PJ
because banks FL contacts were negligible and non-deliberate, and the claim did not arise from those
contacts. must purposefully avail itself of the privileges of conducting activities within forum state, thus
invoking benefits and protections of its laws. Narrows McGee holding to say that some exercises of PJ under
minimum contacts are not allowed, to protect partys DP interests and state sovereignty.

Specific Jurisdiction and Due Process

1.

2.

World-Wide Volkswagen Corp. v. Woodson Purposeful avail = anticipate lit, not stream of commerce
a. Facts: Family bought car in NY, then got in car accident while driving through OK. Family brought suit
against NY dealer in OK ct. Seaway and WWVW claimed that OK ct lacked PJ because there were
insufficient minimum contacts didnt conduct business there.
b. Holding: A state cannot exercise jurisdiction over who has not deliberately sought contacts with the state,
regardless of fairness and convenience.
i.
Minimum contacts must be based on act by purposefully availing itself of the benefits and laws of
the forum state, so that jurisdiction is consistent with traditional notions of FP&SJ
ii. could not anticipate being haled into court in OK (does foreseeability/stream of commerce =
purposeful availment? No, the question is whether can anticipate being haled into court there)
iii. Two part test: (1) statutory basis: OK ct held that long-arm statute can exercise PJ because tort
occurred in OK; (2) FP&SJ: no minimum contacts, because did not purposely avail of OK benefits
and could not anticipate being haled into OK court
iv. SC SPLIT:
Fairness: DP rights of the (WWVW)
Contacts: interests of the forum state in adjudicating the dispute (Burger King)
Burger King Corp. v. Rudzewicz C/A arises out of continuous contact / purposeful availment
a. Facts: contracted with Burger King (FL corp) to operate BK franchise in MI. BK brought suit in FL when
defaulted on payments.

b.

3.

4.

Holding: To assert PJ over nonresidents, the court only has to establish minimum contacts, which
presumes its fair and equitable to require to defend there. It becomes s responsibility to show that PJ
offense traditional notions of FP&SJ, not the courts responsibility.
i.
Minimum contacts were established because contracted with FL corp, governed by FL law.
purposely availed itself of FL laws and could anticipate litigation in FL.
ii. 2-part nature of Intl Shoe test: (1) are there minimum contacts? If so, (2) can the rebut the
presumption of fairness; Places the burden on of showing that forum is so gravely invonvenient that
he is at a severe disadvantage in being required to litigate there.
iii. FL is most convenient forum (one consideration)
Asahi Metal Industry Co. v. Superior Ct DP not constitutional over intl case (FP&SJ 5 factors not met)
a. Facts: Zurcher had motorcycle accident and sued Taiwanese mfgr in CA, who cross-claimed against Asahi,
the Japanese valve assembly mfgr. Asahi protested CA jurisdiction.
b. Holding: met minimum contacts by putting a product into the stream of commerce with the expectation
that it will reach the forum state, however the FP&SJ requirement was not met. Transaction took place in
Taiwan, so CA law shouldnt decide. Haling Asahi into CA court would be fundamentally unfair, especially
since CAs interests were questionable after all of Zurchers issues were settled.
i.
Intl Shoe two-part test: (1) minimum contacts and (2) does assertion of jurisdiction comport with
traditional notions of FP&SJ?
ii. Minimum contacts can be read narrowly or broadly:
1) Narrowly: purposeful availment advertise, market to, design for certain market
2) Broadly: anywhere product ends up in stream of commerce
iii. FP&SJ has five-part test:
1) burden
2) interest of forum state
3) interests
4) judicial system interests
5) shared interstate interests
iv. If contacts are systematic and continuous, dont have to test FP&SJ
i.
Something more (besides introduction of a product with expectation destination) is necessary
like in WWVW, foreseeability alone does not suffice; Asahi must have performed some act showing
its deliberate intent to take advantage of the states market or laws.
Jurisdiction under Due Process after Asahi
a. Minimum contacts (Intl Shoe)
i.
Quality and quantity of actual contacts
ii. Foreseeability (not enough in Asahi) and stream of commerce
iii. Purposeful availment of protection of forum states laws (WWVW)
b. FP&SJ (BK) five factors
i.
Burden on
ii. s interests in obtaining relief
iii. Forum states interest in adjudicating dispute
iv. Interstate judiciary systems interest in obtaining the most efficient resolution of controversies
v. Shared interest of the states in furthering fundamental substantive social policies
c. Relationship
i.
Most justices think the fairness factors only can defeat minimum contacts (minimum contacts must first
be established
ii. Brennan in BK says fairness factors themselves can create jurisdiction even if minimum contacts are
not established
iii. Movement from FF&C clause to DP clause; shift from focus on federalism to individual rights

G. General v. Specific Jurisdiction

1.

Overview
a. General jurisdiction: can sue for any claim show systematic and continuous contacts
i.
If has contacts with forum that are unrelated to claim, may weigh in favor of PJ if they are continuous
and substantial
ii. Fairness factors:
1) Relatedness of s claim to s contact (McGee)
2) Forum states interest in adjudicating claim (McGee)
3) Convenience must show that forum is so grossly unfair that he would be severely
disadvantaged by litigating there (standard set high in BK)

b.

2.

H.

Property: still an independent basis for PJ?

1.

I.

Shaffner v. Heitner Stock not property for PJ (DE law later changed)
a. Facts: Heitner is a Greyhound stock holder and sues G execs in shareholders derivative suit (FRCP 23.1)
by attaching execs stock in DE. Execs claim DE has no PJ, b/c no minimum contacts.
b. Holding: In rem jurisdiction is subject to minimum contacts analysis; even if has property within the forum
state, the state cannot obtain PJ if there are no minimum contacts. Applies minimum contacts test to
property.
i.
Invalidates Pennoyer requirement of grabbing property + notice = PJ. Now require grabbing property +
minimum contacts = PJ.
ii. Two part analysis for QIR and IR jurisdiction
1) Statutory inquiry: must be an attachment (or sequestration) statute
2) Constitutional inquiry: QIR ok if property is attached at outset
iii. QIR works like long-arm statute to grab property, however then require minimum contacts (Shoe)
iv. Property alone does not serve as basis of general jurisdiction.

Physical presence: still an independent basis for PJ?

1.

J.

Specific jurisdiction: can only sue for claims arising out of the contacts cause of action must arise from
contacts
i.
Is there a long arm statute?
ii. Does exercise of PJ violate DP clause? Intl Shoe
ii.
Look at lawsuit and contacts (if c/a arises out of contacts = specific jurisdiction; if c/a does not
= general jurisdiction)
Helicopteros Nacionales de Colombia SA v. Hall Specific jurisdiction = C/A did not arise out of contacts
a. Facts: Hall (survivors of 4 decedents killed in helicopter crash) sued Helicol (Columbian helicopter service),
Concorcio (Peru oil corp; ER of decedents) and WSH (TX corp). WSH rented copter from Helicol for use on
oil pipeline.
b. Holding: Cause of action did not arise out of TX contacts (even though pilots were trained there and
copters were rented there), therefore the contacts were not systematic and continuous to satisfy
requirements for general jurisdiction. However, could have been sued through specific jurisdiction, but
did not make that claim.
i.
First case that distinguishes between specific and general jurisdiction, but does not identify the exact
point at which contacts support general
ii. was trying to assert general jurisdiction where it didnt exist; because only argued for general
jurisdiction, dont go into specific jurisdiction.

Burnham v. Superior Court Presence

a. Facts: Couple decided to divorce. She moved to CA, then she served him when he came to CA and visited
the children.
b. Holding: Physical presence gives court jurisdiction.
i.
If is present in the forum state and is served process there, no minimum contacts are required.
ii. Tag jurisdiction is sufficient; this part of Pennoyer remains intact

Consent
1.

2.
3.

Bauxites Waived PJ
a. Holding: Objections to PJ may be impliedly waived by failure to comply with a courts discovery orders. By
voluntarily submitting to the court for the purpose of challenging jurisdiction, the party agrees to abide by the
courts determination of jurisdiction.
i.
failed to comply with a discovery order to determine jurisdction, so under FRCP 37(b)(2)(A) the court
imposes a sanction and takes the matter sought to be discovered as true. Therefore impliedly waived
its objection to PJ, a form of consent.
Bremen Upheld forum selection clause
a. Holding: US courts should enforce forum selection clauses, if they are reasonable, even if the clause
mandates jurisdiction in a foreign court.
Carnival Cruise Lines v. Shute Forum selection clause established consent
a. Facts: purchased tickets for s (FL) cruise, which included a provision stipulating that all litigation would
take place in FL. was injured and brought suit in WA.
b. Holding: A reasonable forum selection clause in the K is enforceable to establish consent to jurisdiction.
i.
Cruise line has special interest in limiting the number of fora in which it can be sued
ii. Promotes efficiency by sparing litigants and courts from fighting over the forum

4.

K.

Jurisdiction in Federal Courts

1.
2.

3.

L.

iii. Passengers enjoyed reduced rates

iv. WA fed ct could reach FL company via FRCP 4(k)(1)(A) same reach as state courts.
Pavlovich v. Superior Court PJ over active websites
a. Facts: ran website offering software to decript copyrighted material. objected to CA PJ, claiming that he
did not have minimum contacts with CA. claimed that should have known his conduct may harm CA
industry.
b. Holding: CA did not have PJ; was asking for too broad an application of minimum contacts.
i.
Active websites: conduct business over Internet with residents of a particular forum (PJ almost always
proper)
b. Interactive websites: permit user to exchange info with host computer; some courts find that internet
activity is enough, while others require other non-Internet activity in the forum
c. Passive websites: make info available; rarely grounds for PJ
d. If s broad application stood, then any business connected to industries centered in CA could sue an
out-of-state in CA for intentional torts that may harm those industries.

Federal ct jurisdiction is limited to state ct reach. No nationwide service of process.

a. No DP argument under 5th A, because federal system spans entire nation
b. Could be an undue burden to order a to fly across the country to litigate
Territorial limits upon exercise of PJ by fed cts in FRCP 4(k)
a. FRCP 4(k)(1)(A): fed ct may only exert PJ over when forum state would be allowed to
b. Exceptions:
i.
FRCP 4(k)(1)(B): permits service outside forum state but only within 100 miles and only to add 3rd party
under FRCP 14 or FRCP 19
ii. FRCP 4(k)(1)(C): permits service on subject to interpleader jurisdiction (1335)
iii. FRCP 4(k)(1)(D): permits service on when authorized by another federal statute
iv. FRCP 4(k)(2): permits service on against whom federal law claims are made in cases which is not
subject to the jurisdiction of a single state, and it is constitutionally permissible
Certain actions that federal court has EXCLUSIVE JURISDICTION over (casebook p289)
a. 1334 bankruptcy cases (unless Congress grants otherwise)
b. 1338(a) Patents, copyrights, trademarks, unfair competition (unless Congress grants otherwise)
c. 1351 actions against foreign consuls and vice-consuls
d. 1355 actions to recover a fine, penalty or forfeiture under federal law
e. 1356 actions involving certain seizures

Challenging Personal Jurisdiction

1.
2.

Traditional common law approach: make a special appearance to specifically contest PJ but cant contest any
other issues of the pending action, otherwise might be deemed to have consented to PJ
FRCP 12(b)(2): making a motion to dismiss on grounds of lack of PJ.

II.

PROCEDURAL DUE PROCESS

A.

Overview
Procedural due process requires that a party may not be deprived of life, liberty or property without notice or an
opportunity to be heard. Due process includes: (1) notice, (2) opportunity to be heard, and (3) personal jurisdiction.

B.

Rules

C.

Notice
1.
2.

D.

FRCP 4(d)(1)(A): delivery of notice to an agent authorized by appt is valid

Constitutional requirement: notice must be given to a party by means reasonably calculated, under all the
circumstances, to apprise the party of the case.
Mullane v. Central Hanover Bank & Trust Co.
a. Facts: CHBT petitioned the court to settle a trust, which was comprised of 113 smaller trustees. The various
trustees were notified, pursuant to NY statute, by publication in a local paper. was appointed by the court
as special guardian, and made special appearance to object to the notice, contending that trustees should
have been notified by mail.
b. Holding: Notice by publication fails to comply with due process when the names and addresses of the
parties are known. In this case, trustees were at risk of losing property (right to manage trusts). Notice by
publication, when addresses are known, is not reasonably calculated to apprise the parties of the case.
i.
Notice by publication is sufficient only as a last resort
ii. All methods listed in FRCP 4 comply with Mullane
iii. Mullane doesnt require that the best method be used, only a reasonable one

Opportunity to be Heard
1.

Confusing cases that all pertain to deprivation of property without a pre-deprivation hearing
SUMMARY:
Goldberg: examine individual and govt interest (found for individual)
Mathews: 3-part mechanical test: 1) individuals interest, 2) accuracy, 3) govt interest (found for govt)
Fuentes: expands Goldberg/14th A to include any significant property interest
Mitchell: opposite outcome from Fuentes; both sides have property interest that much be balanced
Di-Chem: upholds Fuentes (cant garnish bank acct, even with double bond)
Doehr: applies Mathews test and adds s interest to 3) govt interest ( only needs probable cause)

2.

Goldberg v. Kelly
a. Facts: Class-action suit against NYs termination of their welfare payments without pre-termination notice of
opportunity for hearing. Process consisted of: (1) interview (discussion with welfare recipient), (2)
recommendation and decision, (3) termination, after which notice is sent with info about availability of posttermination hearing, (4) post-termination hearing, from which winners get retroactive and continuing aid
b. Holding: Welfare benefits regulation denying a pre-deprivation hearing is unconstitutional because state
was depriving recipient of property without OTBH. Additionally, recipients statements should be written, as
opposed to oral, and should be allowed an attorney.
i.
Shows judicial efforts to tailor the system to the needs of each individual, and listing the specific
requirements of that judicial system.
ii. Interest-balancing test (individual v. govt interest)
Mathews v. Eldridge
a. Facts: Case pertains to social security disability benefits and required government procedures before
terminating the benefits. However could not win by citing Goldberg.
b. Holding: SC outlines 3-factor mechanical test to determine whether party should be heard: (1) individuals
interest, (2) accuracy, or risk of erroneous deprivation, (3) govts interest in summary adjudication; and
determines that state interest supercedes.
i.
Goldberg was about (1) individual and (3) govt interest. Mathews distinguishes its approach to each
factor
1) Private interest: welfare (primary sustenance) v. disability benefits (supplementary, comes after
welfare)
2) Accuracy: oral, subjective evidence v. factual medical reports
3) State interest: focus on errors in distribution of welfare injuring society v. focus on cost of having a
hearing at a different point in time (pre- v. post-determination)

3.

4.

5.

6.

7.

8.

Fuentes v. Shevin
a. Facts: s stereo and stove were repossessed by sheriff prior to adjudication of suit for defaulting on
payments filed by , the creditor.
b. Holding: SC interprets 14th as protecting any significant property interest, expanding Goldberg.
i.
SC uses balancing approach from Goldberg and notes the opportunity for the grantor to abuse the
system
ii. Dissent argues that property interest is shared, and that creditor still has property rights
Mitchell v. W.T. Grant Co.
a. Holding: LA case allows creditor to replevin personal property, leading to opposite outcome from Fuentes.
i.
Both sides have property interests that must be balanced against each other
ii. Possible that the sequestration statute was more fair than in Fuentes
North Georgia Finishing v. Di-Chem
a. Holding: GA law that allowed garnishment of a bank account before litigation was declared unconstitutional
because it denied OTBH, even though the process required the presentation of an affidavit and double
bond. Upholds Fuentes
Connecticut v. Doehr
a. Facts: Doehr was sued for assault, and the (DiGiovanni) attached his property, only needing to show
probable cause to get attachment, after which Doehr was sent notice of his right to a hearing to object,
post-attachment.
b. Holding: SC applied three-part test from Mathews, with one change to the third factor (adding s interest
and making govt interest minimal):
i.
s interests are severely restricted,
ii. Risk of erroneous deprivation is too steep, since only requirement to get attachment was probable
cause
iii. s interest is too minimal, since it was assault and not property-related. Govt has no substantial
interest since a post-deprivation hearing is already offered.
iv. Distinguished from Mitchell because Mitchell required documentary proof, as opposed to good faith
probable cause allegation, the property was involved in the nature of the dispute, and court required a
bond
Mashaws article
a. Believes Mathews test fails because although it invites an intrusive, particularistic review, it is tempered by
judicial restraint. The test is focused on technique rather than value.
i.
Criticisms: Accuracy may not be the correct goal, because it reduces the analysis to a systematic one
rather than looking at particulars of the case; Questions asked are non-quantifiable; Questions may not
be constitutionally relevant
ii. Suggestion: Approach should stress individual dignity; lack of right to participate causes alienation and
loss of dignity and self-respect, which society deems valuable. This approach is purely subjective.

III.

SUBJECT MATTER JURISDICTION

A.

Overview
SMJ speaks to the competency of the court to handle the dispute. State courts have general jurisdiction and can
hear any subject. Federal courts have specific jurisdiction and can only hear federal question or diversity cases.
Federalism defines boundaries between what federal and state courts can hear, to safeguard them from imposing on
each others territory.

B.

Rules

C.

US Constitution, Art III, I mandates that there be a Supreme Court and gives Congress the power to set up
the judiciary
US Constitution Art III, II gives federal courts jurisdiction over cases between citizens of different states
28 USC 1331 jurisdiction over federal question cases
28 USC 1332 jurisdiction over diversity cases with over $75,000 in controversy
Marathon Oil court can decide either SMJ or PJ first, since both are constitutional concerns

Diversity Jurisdiction
1. USC 1332 sets forth two requirements:
a. Amount in controversy must exceed $75,000:
i.
Must be shown to legal certainty that claim does not meet $75,000 requirement
1) AFA Tours, Inc. v. Whitchurch
claimed that , a former EE, stole confidental customer lists to start new tour business. Court
dismissed for failing to meet amount in controversy requirement. SC rules that the burden is on
the to prove to a legal certainty that s claim is for less than requirement. Result is that just
about any claim that has good chance of meeting requirement will be tried.
ii. Aggregation of claims
1) Rule from Zahn: single s can aggregate claims against single s. Multiple s cannot aggregate if
they have separate and disctinct claims, but multiple s can aggregate if there is a single indivisible
harm. However, some courts say this was overruled by 1367
iii. Injunctive remedies how are they measured?
1) s view: does what is doing amount to damage > $75,000
2) s view: would it cost > $75,000 to comply with the injunction?
b. Must have complete diversity between parties:
i.
Capron v. Van Noorden: Judgment overturned because lower court lacked SMJ. Lack of SMJ motion
(FRCP 12(b)(1)) can be brought anytime, even on appeal. Error of giving judgment without SMJ is
greater than the error of misfiling the suit.
c. Citizenship is determined by fixed domicile and residency
i.
Mas v. Perry: Couple sued LA landlord for spying on them; husband was French citizen and wife was
MS. They lived in LA for school and had no intention of staying in LA. Court held that she was a MS
citizen, because it was the last place she lived. To determine citizenship, look at place of residency
and intent to stay.

D.

Federal Question Jurisdiction

1.

s claim must arise under federal law

a. Louisville & Nashville R. Co v. Mottley Face of complaint
1) settled tort action against RR by receiving free train tickets for life. Congress passed statute that RRs
could not give free rides. stopped letting s ride and sued for breach of K, contending that the
federal statute didnt apply to them. Court held that to determine federal question jurisdiction, must
look to the face of the complaint (breach of K), not anticipated defenses (the federal statute).
a) Called the well-pleaded complaint rule
2) Face of the complaint:
a) Express violation of federal law (easy ones)
b) Implied cause of action created by federal law
c) Suing under state law, but necessarily turns on federal law (great federal interest)
d) Federal govt is a party
e) Federal right interpreted through state law
b. T.B. Harms Co. v. Eliscu Not federal law

10

1)
c.

d.

e.

f.

E.

Case involves K assignment of copyright assignment for four songs. Court concluded that the case was
about the K, not the copyright itself, and therefore state law should be applied.
Merrell Dow Pharmaceuticals, Inc. v. Thompson Didnt turn on federal law
1) s brought suit alleging tort action for defective birth control drug. removed to federal court,
reasoning that case arose under federal law since a federal standard (FDCA) was violated (under state
statute). SC held that case couldnt be brought under FDCA alone, so did not necessarily turn on
federal law.
Smith Requires interpretation of fed law, even if not on face of complaint
1) sued, alleging that govt didnt have authority to issue a bond. claimed a violation of state law (MO
bank couldnt invest in anything illegal). However to determine whether the bond was illegal, court
would have to interpret federal law. Requires interpretation of federal law, even if a federal claim
was not on the face of the complaint. Gets into fed ct.
Moore ER failed to comply with federal law, but not questioning fed law; NO fed jurisdiction
1) was hurt on the job and sued ER under the KY Employer Liability Act, claiming that failed to comply
with a federal law (Federal Safety Appliance Act). Ct found that wasnt challenging the fed statute,
but only whether the ER lived up to the statute, therefore no fed jurisdiction.
How to decide, based on Smith, Moore, Dow

Nature of the federal interest: Depends on the federal question involved. Moore and Dow involve
whether the lived up to a federal statute. However Smith involves the constitutionality of federal
bonds, so federal law was of more central importance.

Doesnt necessary have to determine federal law (least convincing): Smith had to determine the
federal question, while the ER in Moore could have just shown he wasnt negligent.

Congress did not create a private cause of action (Dow): In Dow, private citizens cant bring suit;
the FDA would prosecute. Private cause of action can be express (Title VII claim) or implicit.

Supplemental Jurisdiction
1.

2.

3.

4.

What is it?
a. must have jurisdiction for every claim asserted, not just original claim
b. Supplemental jurisdiction is a method by which can get a non-diversity, non-federal question claim into
federal court, if it accompanies an original claim that has SMJ
c. 1367: fills the gap after Finley and codifies supplemental jurisdiction
(a) Grants supplemental jurisdiction. Except as in provided in (b) and (c) or expressly provided in
federal statute, district courts have SJ over all other claims that they form part of the same case or
controversy.
(1) Case or controversy has been defined as arising out of the a common nucleus of operative
fact (Gibbs)
(b) Removes supplemental jurisdiction in claims brought by s under joinder rules (14, 19, 20, 24) in
diversity cases when the parties would not have been subject to PJ otherwise (non-diverse joined
parties) (codifies Kroger)
(c) Conditions the grant of supplemental jurisdiction on the courts discretion
(1) If claim raises a novel/complex issue of state law,
(2) If state claim substantially predominates over federal claim,
(3) If the federal ct has dismissed all of the federal claims up front,
(4) If there are other compelling reasons (unlimited discretion)
United Mine Workers v. Gibbs Common nucleus of operative fact
a. Facts: Gibbs was a scab, forcibly prevented from re-opening a coal mine during a strike. He lost his job and
other Ks as a result. sued UMW in fed ct, alleging two causes of action: (1) federal claim of violation of
303 of the LMRA, and (2) a state claim of K interference. Dist ct set aside and dismissed federal claim,
leaving remaining judgment solely on state grounds.
b. Holding: Federal jurisdiction extends to state claims that arise out of a common nucleus of operative fact.
Aldinger v. Howard
a. Howard brought fed and state claims against Aldinger and sought to join Spokane County with state claim
(federal statute prohibited county from being subject to suit). SC held that since the federal statute forbade
SMJ over the county, the fed ct could not exercise supplemental jurisdiction to adjudicate the state claim.
SJ allowed unless disallowed in federal statute.
Owen Eq. v. Kroger Complete diversity
a. Facts: s husband was electrocuted and (IA) sued 1(NE) in ct under diversity. 1 added 2. added
claim against 2. 1 dropped out, leaving and 2. At trial, discovers that 2 is from IA, destroying
diversity.
b. Holding: There must be complete diversity and cant allow to have fed ct when she otherwise would
have been unable to 1367(b).

11

5.

F.

Finley v. U.S. Pre 1367

a. Facts: s husband was killed when his plane struck a power line, so she sued the US for negligent airport
maintenance and sought to join two related state claims, against the city and the utility company.
b. Holding: To sue US, must have exclusive federal jurisdiction, so cannot try entire case in federal ct
because they are state claims.
1) Pre-Finley: supplemental jurisdiction is allowed unless Congress expressly forbids it
2) Post-Finley: supplement jurisdiction is forbidden unless Congress expressly allows it

Removal
1.
2.

3.
4.

5.

Definition: removal is a device by which a may have a case in state ct moved to federal ct (allows to affect
forum)
1441: Removal
(a): Only can remove
One-way street, from state to federal
Only if claim could have been brought in federal court in the first place
(b): Any can remove federal question case
Only out-of-state can remove diversity case (all s must be from out-of-state)
(c): Federal ct may remand entire case or some claims to state court (esp. when state law dominates)
(e): must file for removal within 30 days of receiving pleading
1446: Rules
(a): Must file notice of removal in federal district that includes the state court (geographically)
(b): No removal of a diversity case more than 1 year after the case became removable (Caterpillar)
1447: Procedure after removal
(c): If at any time before jment it appears that fed ct lacks SMJ, case is remanded to state ct (FRCP 12(h)(3): if it
appears that ct lacks SMJ, ct shall dismiss the action)
(d): An order remanding the case under (c) is not repealable.
Caterpillar v. Lewis SMJ at final jment
a. Facts: Lewis(KY) sued Cat(IL, DE) and Whayne(KY) for personal injury while operating a bulldozer.
Whayne settled with Lewis, leaving Cat as only . Cat filed to remove for diversity (existed after Whayne
exited) before 1 yr. deadline but also before Whayne officially left.
b. Holding: Ct allowed removal. Even though SMJ wasnt met at the time Cat filed to remove, ct had SMJ at
final jment.
i.
Unlike Capron, fed ct had jurisdiction at jment.
ii. Finality trumps jurisdiction if jurisdiction is met at the time of jment.

G. Challenging SMJ
1.
2.

Direct attack: FRCP 12(b)(1) motion to dismiss (can be asserted at any time, by any party)
Collateral attack: judgment rendered by a court that lacked SMJ is void (Capron)

12

III.

VENUE
A.

Overview

To determine if court is competent to hear a case, three things must be satisfied: the court must have personal
jurisdiction over the defendant, subject matter jurisdiction over the case, and be of proper venue. Venue assures that
the case is tried in a place that bears some sensible relationship to the claims asserted or the parties to the action.
B.

Venue Rules
1.

2.
3.
4.
5.
6.

C.

Transfer
1.
2.

3.

D.

1391(a): Diversity cases

1391(a)(1): venue can be laid where any resides

1391(a)(2): venue can be laid where a substantial part of the events giving rise to the claim occurred
(implies that more than one venue may be correct)

1391(a)(3): fallback provision: if venue cannot be laid anywhere else, it can be laid in any district having PJ
over
1391(b): Federal question cases

(1) and (2): are the same as 1391(a) (Bates); fallback provision in (3), if venue cannot be laid anywhere
else, it can be laid in any district in which any may be found
1391(c): Corporations

Corporations are deemed to reside in any district having PJ over the corporation (Ex: Ford is a citizen of DE
and MI, but resides in every district, because it sells cars in every district)
1392: Local actions (those involving real property) have venue in the district where the land is located;
transitory actions are subject to the rules above.
Venue is considered a personal right and may be waived, by failing to raise it as a response to s complaint or
through a forum selection clause (Carnival)
Bates v. C & S Adjusters, Inc. Location of substantial events
a. Facts: Bates incurred debt in PA and moved to NY. C&S sent collection notice to PA address, and letter was
forwarded to NY. brought suit in NY court, and moved to dismiss for improper venue.
b. Holding: Ct held that substantial part of events giving rise to claim occurred in NY, because that is
where opened the letter, even if didnt intentionally deal with NY (1391(b)(2)).

Definition: If a venue is not correct, or there is a more correct one, transfer shifts a case to a different venue
within the same court system
Two transfer statutes:
a. 1404(a): when original federal court is a proper venue, transfer is based on convenience and standards of
justice, and is entirely within the discretion of the judge
i.
Four-part test
1) Whether case could have been brought in 2nd forum
2) Interest of justice (judicial discretion)
3) Convenience to parties
4) Convenience to witnesses
b. 1406(a): when original federal court is not a proper venue, court may dismiss or transfer to a proper venue
(essentially, a court will transfer if possible)
Hoffman v. Blaski Venue where claim could have been brought
a. Facts: Blaski(IL) sued Hoffman(TX) in TX for patent infringement. H transferred to IL fed ct under 1404(a)
and objected, arguing that couldnt transfer to district in which couldnt have brought suit in the first
place.
b. Holding: Ct held that 1404(a): only allows transfer to venue in which could originally have brought
the action.
i.
Law follows to the new venue. The new transferee court will adopt transferor courts substantive law
(Erie). Thus TX law would still apply here.

Forum Non Conveniens (FRCP 12(b)(3))

1.

Definition: FNC is where a proper court dismisses because another court is far more convenient (and
appropriate). Because FNC results in dismissal, it requires a much stronger showing than that required for
transfer. FNC used most often in state court, because theres no transfer between states, so its another way

13

2.

E.

to get from state to state. Rare in federal court (only arises when its international, and no federal court would be
better forum).
a. Judicial doctrine, that is not statutory or rule-based. Usually used in state courts, because federal courts
have 1404 and 1406
b. Example: A(CA) sues B(CA, with MD contacts) in MD state court for a car crash in CA. Court might have
PJ over B, but even so, the case obviously should be heard in CA, but no transfer would be allowed
because MD and CA and different state court systems. B would request that case be dismissed on FNC
grounds, under FRCP 12(b)(3)
Piper Aircraft Co. v. Reyno International defendants
a. Facts: Plane crash in Scotland, owned and operated by Scottish corp., which killed Scottish people. s
were aircraft (PA) and propeller (OH) manufacturers. s (administrators of decedents estates) sued s in
CA state ct.
o s removed under 1441 to CA fed ct

Based on diversity
o s transferred under 1404 to PA fed ct

PJ: Could have been brought there ( is based there)

Venue: substantial part of events occurred there (evidence, planes, employees)

o moved to dismiss on FNC grounds
b. Holding: Lower ct held for , favoring s consideration that PA will be less favorable. SC held that s
interest in substantive law should not be given conclusive or substantial weight in determining FNC.
i.
GILBERT TEST:
1) Must be alternate forum available
2) Balance public and private interests (malleable factors, leave up to cts discretion)
a) Public interests: convenience of forum, choice of law issues, having dispute settled at home,
etc)
In this case: costly for PA tax-payers, time-consuming, jury confusion over US/Scottish laws
b) Private interests: convenience of litigants, witnesses, evidence
In this case: witnesses, evidence, view of area in Scot; s should all be brought together, since
Pipers defense would be affected without ability to cross-claim (FRCP 14) against Scot pilot;
all manufacturing took place in OH
c) Enforceability of the judgment

Ascertaining the Applicable Law the Erie doctrine (1652)

1.

2.

3.

Swift v. Tyson Federal common law

a. Facts: ME land speculators sold land they didnt own yet to NY residents. Tyson (), one of the purchasers,
gave specs a negotiable instrument and got a bill of exchange in response, which was no good. T gave
note to Swift to pay a debt. Swift () tried to collect from , who claimed that K was unforceable because it
was induced by fraud.
b. Holding: Rules of Decision Act (34 of Judiciary Act of 1789) commanded fed court to follow the statutory
laws (NY K law, under which would have fraud defense) but to develop their own fed precedent.
Erie R. Co. v. Tompkins Fed ct uses state substantive law
a. Facts: was walking near RR track and was hit by passing train. sued in NY fed ct. PA law would
have viewed as trespasser, while the common law in most states (incl. NY) said that owed a duty of
care.
b. Holding: Fed cts hearing diversity cases must apply the same substantive state law that a state court
would use. NY fed ct would have to use choice of law that NY state ct would, which was PA law because
thats where tort took place.
i.
Swift discriminated against s in federal courts, because could forum shop and choose federal or
state court based on which law was more favorable.
ii. Swift was unconstitutional because it gave federal courts the authority to create federal general
common law.
Application
a. 1652 Laws of the several states are rules for civil action, except where Constitution or congressional
legislation exists
i.
Essentially determines what type of law to apply in a diversity case
Pre-Erie (pre-1938)

Procedure
Substantive law

Post-Erie (post-1938)

State Rules of Civ Pro

Federal common law (Swift)

FRCP
State law (Erie)

14

b.

4.

F.

Choice of law directs federal district ct to defer to state court system in two ways:
i.
Use the same substantive law that the state court would use, and
ii. Use the states choice of law provisions for determining which states substantive law the court would
actually apply
iii. In Erie, this means that the NY federal ct would first use NY state ct system for determining which law
to use. NY state ct would have used PA law, so NY federal ct would have to apply PA law.
iv. Van Dusen: PA ct applied CA choice of law rules ( got new forum, not different law)
c. Difference: Federal procedural rules still used in fed ct
Illustrations
a. Swift: consistency between 2 federal courts (NY, CA)
b. Erie: consistency within courts in 1 state (CA st ct, CA fed ct)
1) Preferable consistency because it doesnt allow forum-shopping

Forum Selection
1.

2.

Choose court based on:

a. Neutral forum when parties are diverse
b. Institutional competency in federal question cases
c. Convenience
d. Gives parties a sense of choice
Federal v. state court expertise
a. Federal trial juries are pulled from a wider geographic area; jury pool may be friendlier to party choosing the
forum
b. Federal system uses FRCP; state system might use version of FRCP
c. Rubenstein: Every day contact (familiarity) breeds better institutional competence within state cts
d. Newborne: Familiarity breeds cynicism in state cts

15

IV.

PLEADINGS
A.

Overview
Pleadings require that gives a general idea of damages. The purpose is to put both sides on notice, but only to
notify them that theyre being sued, not to give specifics. The low requirements make it very easy for parties to get to
the discovery stage. Conley v. Gibson simplified the pleading requirements because of liberal opportunity for
discovery and other pre-trial procedures.

B.

Rules

FRCP 1-12

FRCP 1: Articulates values of the procedure (fairness and efficiency)

FRCP 2: Abolishes equity and legal tracts

FRCP 7: Three types of pleadings: complaint, answer, reply

C.

Complaint
1.
2.

3.

D.

FRCP 3: Starts the lawsuit: a civil action is commenced by filing a complaint with the court
FRCP 8: Pleading requirements
Requirements
a. 8(a)(1): statement of SMJ (FQ, diversity, supplemental)
b. 8(a)(2): short and plain statement of claim showing that is entitled to relief
c. 8(a)(3): demand for judgment
d. 8(e)(1): each claim should be simple, concise and direct
DioGuardi v. Durning Sufficient notice
a. Facts: s inarticulate complaint was dismissed after one opportunity to amend. had a language barrier
and no attorney.
b. Holding: AC held that amended complaint satisfied FRCP 8(a) because it included: (1) a short and plain
statement, (2) an assertion that was entitled to relief, and (3) a demand for judgment. A complaint must
state only enough facts to sufficiently notify the opposing party of the claims against him to being
preparing a defense.
i.
Ct analyzes the two extremes of what a complaint can be:
1) Complete: complaint details entire cause of action
a) More efficient, to give court idea of the cause
b) Fairer to , to prepare defense
2) Gives sufficient notice: complaint puts on notice that he is being sued
a) Fairness: dont want to keep out of court for not writing sufficient c/a
b) Requiring too much at pleading prevents the need for discovery
ii. Exceptions:
1) FRCP 9(b): circumstances of fraud/mistake must be pleaded particularly
2) FRCP 9(g): items of special damages must be pleaded with specificity

Response
1.
2.

FRCP 12(a)(1)(A): must serve an answer within 20 days of being served w/complaint
Motions can be made instead of an answer
a. 12(b)(1): Lack of SMJ
b. 12(b)(2): Lack of PJ
c. 12(b)(3): Improper venue
d. 12(b)(4): Insufficient process
e. 12(b)(5): Insufficient service of process
f. 12(b)(6): Motion to dismiss for failure to state a claim upon which relief can be granted
Hold facts as given, but and ask whether there is a legal claim
i.
Two approaches on how broadly/narrowly to read claim
1) Case v. State Farm: Case sued SF for wrongful termination, but the employment K allowed for
termination without cause; Case probably should have sued for civil rights violation; court granted
SFs 12(b)(6) motion
Holding: Court will not create basis for relief when the pleading does not state one (narrow
reading)
2) Pruitt v. Cheney: Pruitt filed 1st A claim instead of EP claim; district ct allowed dismissal under
12(b)(6); Ct of Appeals reversed, and allowed EP claim

16

3.

4.

E.

Waiver
1.
2.
3.

F.

Holding: Infer that court is under a duty to examine the complaint to see if is entitled to relief
under any possible theory (broad reading)
3) Differences between Case and Pruitt:
a) Pruitt was a constitutional claim
b) Pruitt had no opportunity to amend complaint
c) Different political climate
4) Conclusion: 12(b)(6) is open to interpretation, but more generous reading (Pruitt) is more likely
ii. American Nurses Assoc. v. Illinois One valid claim
1). Facts: Nurses sued for sex discrimination, with confusing complaint that pointed to comparative
worth study that showed that nurses (typically women) were paid less than doctors. Complaint
stated several claims. made 12(b)(6) motion, alleging that the complaint did not state a legal
claim.
Holding: Ct found that at least one claim in the complaint was viable. Even though complaint
included invalid claims, ct cannot dismiss if there is one valid claim present.
g. 12(b)(7): Failure to join a party under FRCP 19
h. 12(e): Motion for more definite statement
i.
12(f): Motion to strike
j.
12(g): Must consolidate defenses 12(b)(2) (5) into one motion
Timing (from FRCP 12(g) and (h)):
a. 12(b)(2) 12(b)(5): must be brought in pre-answer motion or in the answer, or they are considered waived
b. 12(b)(6) and 12(b)(7): may be brought later, at any time during trial
c. 12(b)(1): lack of SMJ may be brought any time, even on appeal (Capron)
Answer
a. Two requirements:
i.
Respond to each and every allegation in complaint (FRCP 8(b)) by:
1) Admission,
2) Denial (failure to deny can be treated as an admission),
3) Lack of sufficient information (treated as a denial)
ii. Raise affirmative defenses (FRCP 8(c))
b. If no response or answer, court will enter default jment for

FRCP 12(h)(1): If party does not make motion or object in pleading, party waives defenses of lack of PJ,
improper venue, insufficiency of process, and insufficiency of service of process
FRCP 12(h)(2): Party can move for 12(b)(6), failure to join indispensable party under R19 (12(b)(7)), or failure to
state a legal defense at any time (in pleading, during trial)
FRCP 12(h)(3): If it appears that ct lacks SMJ at any time, ct will dismiss the action

Amending Pleadings (FRCP 15)

1.

FRCP 15: allows for pleading to be amended to accurately reflect the case as it develops
a. 15(a): sets forth the basic rules

has right to amend pleading once has filed an answer

has right to amend response within 20 days of serving answer on

If there is no right to amend, court decides leave shall be freely given as justice requires
b. FRCP 15(b): allows party to amend pleading when evidence at trial doesnt match the pleading, by express
or implied consent of the other party; if other side objects, court may still allow pleading to be amended
i.
Often the jment is a verdict only, so pleading provides explanation of what happened
ii. Mullane held that jment w/o notice was void
iii. Winner would want amendment to hold up later, for preclusive effect and show that notice was given
c. FRCP 15(c): deals with amending the pleading after the statute of limitations has run; three circumstances
under when the amendment will be related back (dated with the original pleading):
i.
FRCP 15(c)(1): when the relevant statute of limitations allows relation back
ii. FRCP 15(c)(2): when claim or defense in amended pleading arose from same transaction or
occurrence as the original pleading
iii. FRCP 15(c)(3): when amendment changes the party or changes the name of a party, if:
a) Claim arose out of same transaction or occurrence as original pleading,
b) Amended within the time period for service of process provided in FRCP 4(m) (120 days) and,
c) FRCP 15(c)(3)(A): party has received notice and will not be prejudiced in maintaining a defense,
OR

17

d)
iv.

v.

FRCP 15(c)(3)(B): party knew, or should have known, that made a mistake concerning the
identity of the party
Moore v. Moore Amend pleadings after jment
a) Wife sued husband for custody. Court also granted child support, visitation rights, attorneys fees,
spousal maintenance. made FRCP 15(c)(2) motion to amend her pleading to conform to the
judgment.
1) can amend, unless objects that he did not have notice
2) can: object, give express consent, have implied consent by litigating (Moore)
Worthington v. Wilson FRCP rules over state procedure (no relation-back)
a) Facts: brought suit after being assaulted by 3 unknown police officers, under fed statute 1983.
sued just within the statute of limitations, then wanted to amend his complaint 3 months later to
specify the officers names. wants to rely on FRCP 15(c) to relate back to the original complaint
date, claiming he made a mistake about their names.
b) Holding: (1) Fed ct uses state statute of limitations, because the federal statute (1983) doesnt
have one. (2) also wants ct to use states relation-back rule, however federal procedure is
always chosen over state procedure, so the complaint cant be amended.

G. Provisions to Ensure Truthful Allegations (FRCP 11)

The liberal nature of the pleadings requirements might enable frivolous or harassing lawsuits to proceed to discovery
and trial. FRCP 11 imposes sanctions to deter frivolous or harassing claims.
1.
2.

3.

4.
5.

FRCP 11(a) requires an attorneys signature on all pleadings and motions, or the partys signature if he has
no attorney
FRCP 11(b) attorneys signature certifies that, to the best of his knowledge and belief formed after an inquiry
reasonable under the circumstances (objective standard)
a. FRCP 11(b)(1): is not for an improper purpose, such as frivolous lawsuit () or motions to delay ()
b. FRCP 11(b)(2): speaks to law: legal contentions are warranted by existing law (precedent) or by a nonfrivolous argument for the extension, modification or reversal of the law (doesnt have to be specifically
identified or flagged)
(applies to lawyer)
c. FRCP 11(b)(3): speaks to fact: allegations have evidentiary support, or are likely to (must be specifically
identified or flagged, if they currently lack evidentiary support) (applies to lawyer and client)
d. FRCP 11(b)(4): denials are based either on evidence or lack of information (lack of info must be specified)
FRCP 11(c) Sanctions
a. FRCP 11(c)(1)(A): must notify the other party of FRCP 11 motion 21 days before filing with the court (safeharbor period), to allow other party to withdraw what he did. Safe-harbor cuts down on court involvement.
Created after 1993.
i.
Hadges v. Yonkers Racing Corp. 21 day safe harbor
1) s affidavit claimed that he couldnt race anywhere, but he did race a few times. returned to the
court to file a FRCP 60 motion (to correct a mistake), and filed FRCP 11 motion to sanction and
his lawyer. Ct held that the did not allow the 21-day safe harbor period, so did not have an
opportunity to defend, and reversed sanction.
FRCP 11(c)(2)(A): clients cant be monetarily sanctioned for lawyers mistake under FRCP 11(b)(2)
Surowitz v. Hilton Hotels Corp. Rule 11 should not be booby trap
a. Facts: sued for fraud in a shareholder derivative suit. Under FRCP 23.1, her signature was required to
prevent frivolous strike suits. did not understand the details of the claim, and her ignorance was revealed
in a deposition. Dist ct dismissed, but SC decided that the claim was well-grounded and not motivated by
bad faith.
b. Holding: Technical violations alone do not warrant dismissal of otherwise meritorious claims. The
mechanism is in place to stop frivolous lawsuits, and should not serve as booby-traps to stop
unsophisticated but honest litigants.

18

V.

JOINDER
A.

Overview
Joinder rules allow parties to expand the scope of the litigation to include other parties and claims. The rules are
fairly liberal. There are five building blocks for understanding joinder:
(1)
(2)
(3)
(4)
(5)

Nomenclature: counterclaim, interpleader, derivative suit

Authority: must have basis in the FRCP and satisfy procedural elements
Jurisdiction: must have jurisdiction over new claims and parties
Preclusion: must know what was litigated and have an effect on the nature of the jment
Policy: rational to allow/disallow joinder that drives the other four building blocks
(a) Efficiency of litigating all issues resulting from one transaction or occurrence
(b) However, efficiency can turn into inefficiency when not all the parties needs are adequately represented

Mnemonic:
If the device starts with C involves existing parties
If the device starts with I involves new parties
B.

Rules
COUNTERCLAIM

FRCP 13(a): compulsory counterclaim

FRCP 13(b): permissive counterclaim (non-preclusive if not brought)

CROSS-CLAIM

FRCP 13(g): cross-claim against already existing party

FRCP 13(h): adding new party to cross-claim against; must have a cross-claim going already
THIRD-PARTY CLAIM

FRCP 14(a): Impleader; 3rd party joinder to indemnify the (admits liability but blames joined party) (if were
liable, then theyre liable); permissive
ALL CLAIM JOINDERS

FRCP 18: can bring as many claims as he has against

FRCP 42: court can separate parties/claims

NECESSARY & INDISPENSIBLE PARTIES

FRCP 19: motion to dismiss for failure to join necessary and indispensable party ( structured lawsuit, but R19
gives some say in structure) (were not liable, theyre liable); motion can be made at any time, by any party or
by the court
ALL PARTY JOINDERS

FRCP 20: people can join in as s or s if arising out of same t/o or having same question of law or fact

FRCP 21: misjoinder of parties

FRCP 42: court can separate parties/claims

CLASS ACTION

FRCP 23: class action suits require: (1) type of situation that makes sense for representative litigation, and (2)
adequate representative
INTERVENTION

FRCP 24: new party not already in lawsuit can intervene; (a) allows intervention to protect interest that may be
harmed by absence (language similar to FRCP 19)

C.

Joinder of Claims
1.

Claim Joinder by Plaintiffs

a. FRCP 18(a): A party asserting a claim (original claim, counterclaim, cross-claim, 3rd-party claim) may join all
claims against persons already parties to a case, even if claims are unrelated to one another
i.
Goal is efficiency
ii. Can lead to preclusion if not brought: if party chooses not to join a claim and it arises out of the same
transaction or occurrence, party may be barred from bringing it later (FRCP 13(a) compulsory
claims)
iii. Harris v. Avery consolidate claims for efficiency

19

a)

2.

Facts: sued for slander, horse thievery and false imprisonment. Three possible approaches:
(1) no joinder, (2) common law theory legal theory must arise under same class of facts (like
same 1L subject), (3) modern law temporal same t/o
b) Holding: may join any claims against one lawsuit, however might be precluded in future if it
arose out of same t/o (FRCP 18(a)). Judge can choose to consolidate for efficiency (FRCP 42).
b. FRCP 42: Consolidation and separate trials
(a): Court may consolidate several actions into one if they share a common question of law or fact
(b): Court may order separate trials of any claim or issue for convenience, to avoid prejudice or for
efficiency
Claim Joined by Defendants
a. Counterclaims
i.
Compulsory counterclaims: FRCP 13(a): pleading shall (must) state a counterclaim arising out of the
same transaction or occurrence as the opposing partys claim. If compulsory counterclaim is not
asserted, it is barred from being litigated anew, by res judicata. Exceptions:
a) 13(a)(1): Counterclaim need not be asserted if the claim was the subject of another lawsuit at time
action was started
b) 13(a)(2): Counterclaim need not be asserted if the suit was originally brought in rem or quasi in rem
(not in personam) and the pleader is not stating any counterclaim under FRCP 13
ii. Permissive counterclaims: FRCP 13(b): pleading may state a counterclaim not arising out of the same
transaction or occurrence as the opposing partys claim
iii. Must have SMJ for every claim
iv. Relationship with 1367: if its the same transaction or occurrence, then its also arising out of a
common nucleus of operative fact (nucleus is larger, and would include t/o)
a) HYPO

(NC) sues (SC) in fed ct for $100,000 (diversity)

has compulsory counterclaim against for $50,000

Procedurally ok check for SMJ

Look to supplemental jurisdiction:

o 1367(a): YES therefore also arises from same t/o
o 1367(b): Not killed FRCP 13 is not blocked

Therefore supplemental jurisdiction allows SMJ over the compulsory counterclaim

v. Great Lakes Rubber v. Herbert Cooper Co. Counterclaim can create SMJ
a) sued in fed ct on diversity grounds. counterclaimed with fed question claim (same t/o, so it
was compulsory), and moved to dismiss s claims because his cc meant there was no longer
diversity. Because fed ct now has SMJ with s fed question claim, then counterclaimed with his
original claim, using supplemental jurisdiction.
1) Court had to hear compulsory counterclaim
2) s trick duped the
b. Cross-claims (claims against a co-party, same side of the v.) always permissive
i.
Permissive: FRCP 13(g): pleading may state a cross-claim arising out of the same transaction or
occurrence as either the original claim or a counterclaim
a) May be for indemnification, but may not
b) Always permissive. Because its more tangential, it may be brought later, but must always be from
same t/o
c) Hypo:

P (NC) sues D1 (SC) in fed. ct. for $100,000 (diversity), for a car wreck

D1, if she has a claim against P for $100,000 arising from the car wreck, its compulsory (fed
SMJ ok)

D1, if she has a claim against D2 (SC) for $100,000, arising from the car wreck, its a crossclaim and therefore permissive but may she bring it?

Procedurally ok check for SMJ: no diversity!

So look to supplemental jurisdiction:

o 1367(a)? YES! Arises from same t/o (has to by defn.)
o 1367(b)? YES! Only kills claims by Ps.
o Therefore supplemental jurisdiction allows the cross-claim!
ii. LASA Per LIndustria v. Alexander broad t/o
a) Mix of claims, counterclaims and cross-claims arising out of construction of the Memphis City Hall
and the marble used. Court allows a broad reading of same transaction or occurrence to mean
any claim arising out of the issue of City Hall.

20

1)
2)
3)
4)
5)
6)
7)

D.

Policy goal: efficiency for parties and courts to resolve all related issues in one proceeding,
because same factual issues are involved
FRCP 18: LASA can bring all claims against in one lawsuit
FRCP 13(g): adding cross-claim against already existing party; same t/o can be interpreted in
two ways: (1) narrow: to be read as only allowing claims arising from original K; (2) broad: to
read as allowing claims arising out of same t/o of marble (favored)
FRCP 42: if claims should not be tried together for reasons of justice or efficiency, the judge
still has the discretion to hear them together or separate them
FRCP 20: people can join as s or s, if arising out of same t/o or if same question of law or
fact will arise against all of them; LASA wants $ for marble (same occurrence) and cause is
breach of K (same question of law)
FRCP 14 (3rd party joinder): Alex () brought in architect to indemnify him against
Changed FRCP 14 to FRCP 13(g/h): Alex said that architect was liable to Alex not to ,
which makes it a cross-claim. In order to bring in a 3rd party cross-claim, must have a crossclaim going already

Joinder of Parties
1.

2.

3.

Permissive Joinder
a. FRCP 20: All persons may join in one action as s or s if they assert (or are asserted against) any right to
relief in respect to or arising out of same transaction or occurrence and if any question of law or fact
common to all s will rise in teh action. Court may order separate trials to avoid delay or prejudice among
joined parties.
b. FRCP 21: Misjoinder is not grounds for dismissal; the parties are sorted out and the heart of the action is
whats important
Necessary and Indispensable Parties
a. Can be brought anytime; motivated because the lawsuit can be dismissed if indispensable parties cannot
be brought in due to lack of jurisdiction
b. FRCP 19 gives three tests, any of which will render X a necessary party:
1) FRCP 19(a)(1): if X is not included, can the court accord complete relief to those already parties (if NO
X is necessary)
2) FRCP 19(a)(2)(i): could Xs interests be harmed if he is not included? (if YES X is necessary)
3) FRCP 19(a)(2)(ii): do Xs claims and interests subject to the threat of multiple liability? (if YES X
is necessary)
4) If X is necessary, court determines whether joinder is feasible:
a) If court has no PJ over X not feasible
b) If joinder of X will destroy diversity jurisdiction not feasible
c) If X objects to venue and joinder of X would make venue improper not feasible
5) If X is necessary, but joinder is not feasible:
a) FRCP 19(b): either proceed without X, or dismiss the entire action
b) Court is given discretion to determine whether in equity and good conscience the action should
proceed or be dismissed; court is motivated not to dismiss; four factors are given to evaluate
whether to dismiss:
i) To what extent will a judgment entered in Xs absence be prejudicial to X or existing parties?
ii) To what extent can this prejudice be lessened or avoided by other measures?
iii) Will a judgment rendered in Xs absence be adequate, in terms of efficiency and finality?
iv) Will have an adequate remedy if the action is dismiss for non-joinder (such as in an
alternate forum)?
c) If the action is dismissed, then X is labeled as indispensable. If the action proceeds without X,
he is deemed merely necessary.
c. Temple v. Synthes: claimed that dr/hospital were indispensable parties and should have been joined as
s at the outset (FRCP 19). moved to dismiss under FRCP 12(b)(7) for failure to join the other tortfeasors
under FRCP 19. chose not to bring in dr/hosp as 3rd party complaint to indemnify (under FRCP 14(a)),
because it would be admitting liability but blaming. SC held that joint tortfeasors could be sued
independently and do not always have to be joined.
d. Bank of California v. Superior Court: claimed entitlement to all of decedents estate, against Bank of CA
and legatee. s moved to join the other beneficiaries. Court found that beneficiaries had interest and were
necessary, but that some of them could not be joined b/c of lack of PJ. FRCP 19(b) instructs courts to try to
go forward and enables courts to shape relief to protect absent but necessary parties.
Impleader
a. Impleader permit s to join other persons not yet parties who may be liable to for some or all of s liability
to (indemnification)

21

b.

c.
d.
F.

FRCP 14(a): may bring in a new party to indemnify his liability to

i.
New party: third-party
ii. Original : third-party
iii. To determine SMJ, only look at third-party and third-party (only look at if has asserted claim
against third-party or vice versa)
iv. Third-party may assert any defenses (FRCP 12) and counterclaims (FRCP 13) against third-party ;
May also file cross-claims (FRCP 13) against any other third-party
iii. Third-party may assert a claim against arising out of the same transaction or occurrence; and
may assert any claim against third-party arising out of same t/o
FRCP 14(b): may also bring in a third-party to indemnify against counterclaim
Kroger: Kroger sued OPPD in fed ct. OPPD impleaded Owen under FRCP 14. amended and brought
complaint against Owen under FRCP 20 (permissive joinder).

Party Structure
1.

2.

Intervention (parachuting in)

a. FRCP 24: new party not already in lawsuit can intervene
i.
Must be timely
ii. Not clear whether intervener comes in as a party, so is not bound by jment
iii. Under 1367(b), cannot intervene if suit is in fed ct based on diversity and new party would destroy
diversity
b. Intervention of Right
i.
FRCP 24(a)(1): Intervention of Right if provided in statute
ii. FRCP 24(a)(2): Intervention of Right
Party shall be permitted to intervene if:

That party has interest in the matter of the pending litigation,

That interest may be harmed if party is not joined,

That interest is not adequately represented if party is not joined

Wharff v. Wharff: Husband files for divorce and to divide jointly-owned real estate, partly paid for
with her childrens trust; children allowed to intervene to protect their interest
iii. Because its the same t/o, party passes 1367(a). However, if SMJ is diversity, and new party is
considered a (because is bringing an action), then would be barred by 1367(b). Court may remand
to state ct.
c. Permissive Intervention
i.
FRCP 24(b)(1): Permissive Intervention if provided in statute
ii. FRCP 24(b)(2): Permissive Intervention
Party may intervene if the claim/defense has a question of law or fact in common with the main action;
up to the courts discretion
d. Smuck v. Hobson Intervention after jment
i.
Facts: Hobson won class action suit against segregated school children who had claimed EP violation.
School Board decided not to appeal, but Smuck (school board member) and Hansen (exsuperintendent) decided to appeal. Hansen and 20 parents moved to intervene.
ii. Holding: Interested third parties may intervene after a judgment has been made, provided they satisfy
the requirements of FRCP 24(a). S and H had no appealable interest. Applying FRCP 24(a)(2), the 20
parents:

Have an interest in their childrens education

Would have their interest impeded if not allowed to intervene

Were not adequately represented by the School Board

Interpleader
a. Parties are fighting over the ownership of one thing
b. Example: used for an inheritance, when the trustee just turns over the estate to the court for it to divide

G. Class Actions
1.

2.

FRCP 23: Class actions are representative litigation, with one party speaking on behalf of a group so large that
joinder is impracticable.
a. There must be a class, that is not too vague (all poor people) or too complex (all people with Spanish
surnames having Mexican ancestry who speak Spanish)
b. Class representative must be a member of the class
Pre-requisites:
a. A class action must satisfy all four requirements from FRCP 23(a):

22

b.

c.
d.
e.

f.

g.

h.

i.

i.
Numerous (too many people to be joined)
ii. Commonality (some questions or law or fact common to all members)
iii. Representative is typical of class
iv. Adequate representative
A class action must be one of the following types from FRCP 23(b):
i.
FRCP 23(b)(1): Limited funds: sets the amount of funds available; court adjudicates everyones rights at
once and splits up the amount available (ex: bankruptcy)
a) Fair to s (avoids race to the courthouse and unequal shares); fair to (multiple suits would lead to
inconsistent results)
ii. FRCP 23(b)(2): Injunctive relief: s seek order from court allowing/disallowing a course of action (ex:
civil rights cases; Brown changing the assignment policy for one affects all other s)
a) Externality goal, because has no way to settle her controversy without affecting many other
parties
iii. FRCP 23(b)(3): Common question (mostly small claims): too expensive for each individual to bring suit
(ex: Shutts)
a) Collective action, individuals would not be able to litigate separately
b) Efficiency, because saves time and money for and s to solve similar problems at the same time
Settlement: (FRCP 23(b)(1)) provides that a class action cannot be dismissed or settled without court
approval and notice of proposed dismissal or settlement must be given to all class members
Attorneys role: greater control over the lawsuit because class reps generally provide less supervision and
guidance than single clients
Parties bound by a class judgment (FRCP 23(c)(2) and (c)(3)):
i.
In small claims class actions (23(b)(3)), parties are bound by jment unless they opt out of the class
ii. Class members cannot opt out of limited funds or injunctive relief class actions (23(b)(1) and (b)(2))
iii. Hansberry v. Lee
a) Lee (white) brought homeowners suit to enforce segregation covenant against Hansberry (black),
pointing to earlier suit that validated the covenant (res judicata). SC recognized an exception to
class action suits, which does not bind parties who were not adequately represented. Due
process maintains that person cannot be bound by the effects of a previous lawsuit when
his interests were not adequately represented and did not have notice.
b) could have also sued because 95% covenant requirement was not met at time of suit, but
NAACP preferred the constitutional issue (segregated housing)
Notice to absent class members:
i.
In small claims action (FRCP 23(b)(3)), class representative must give individual notice to all class
members reasonably identifiable, by best method practicable under the circumstances (FRCP 23(c)(2))
1) Costs are borne by the party seeking class treatment
2) Content of notice in action FRCP 23(c)(2)
3) Notice requirement with opt-out provision satisfies DP
ii. In limited fund and injunction suits (FRCP 23(b)(1) and (2)), court has power to shape the form of notice
(FRCP 23(d)); most courts issue general notice, such as publication
SMJ in class actions
i.
Based on federal question, no problem
ii. Based on diversity, problems
1) To determine diversity, look at the citizenship of the named parties
2) Amount in controversy
a) Snyder: stock holders did not have a common interest, and their separate and distinct claims
couldnt be aggregated to meet the minimum $ requirement
b) Zahn: every class member in FRCP 23(b)(3) must satisfy >$75,000 requirement
c) Abbott: held the opposite from Snyder and Zahn, that only one class rep had to satisfy the $
amount
d) 1367: strong argument that Zahn is incorrect, because 1367(b) didnt bar FRCP 23
PJ in class actions
i.
Phillips Petroleum Co. v. Shutts PJ not required over each class member
1) Facts: Landowners brought suit against gas co. for unpaid royalties. Class included 28,100
members from all 50 states. Action was brought in KS state ct, which applied KS law even though
99% of leases and 97% of members had no connection to KS. appealed contending that ct didnt
have PJ.
2) Holding: Because s are not haled into ct themselves and have their interests represented by
class rep, there is no DP violation of absent s. Dont have to have PJ over each individual
member. Also, notice by mail with opt-out provision satisfied DP concerns of binding absent s.
i.
brings up PJ because it wants to make sure to bind all class members if it wins
Venue is class actions

23

i.
ii.

Courts look to residence of the class rep rather than to the residence of every class member
Supreme Tribe of Ben Hur: class action is based on named parties

24

VI.

DISCOVERY
A.

Overview
During discovery, parties trade information. If there is a dispute, parties can go to court to order discovery. Discovery
has 3 major purposes:
1. Preservation of material that might not be otherwise available at trial (testimony of sick or aged witnesses,
copies of document that might be lost, etc.)
2. Ascertainment and isolation of issue actually in controversy
3. Determination of testimony and evidence is available on each side of the dispute full disclosure, no
surprises

B.

Rules
Rule
26(a)
30(a)
31
33
34/35
35(a)
36
45
26(g)/37

Device
Initial Disclosures
Depositions
Depositions
Interrogatories
Docs
Physical Exams
Admissions
Subpoena
Signings/Sanctions

Addressed To

What It Does

Parties
Anyone
Anyone
Parties
Parties/anyone
Parties, by ct order
Parties
Anyone
Party/anyone

Exchange basics
Oral questions
Written questions
Written questions
Things
Injuries
Re-pleading
People/things

C.

What is discoverable?
1. FRCP 26(b)(1): Ct may order discovery of anything relevant to subject matter, unless privileged
2. FRCP 26(b)(2): Limitations
a. FRCP 26(b)(2)(i): Unreasonably cumulative, duplicative or obtainable from another source that is more
convenient, less burdensome or less expensive
b. FRCP 26(b)(2)(ii): Material the party seeking discovery has had ample opportunity to obtain
c. FRCP 26(b)(2)(iii): If the burden or expensive of discovery outweighs the likely benefit
d. FRCP 26(b)(3): Other partys work product (things prepared in anticipation of litigation) may only be
discovered upon a showing of substantial need of the materials and undue hardship in obtaining them
somewhere else
i.
Opinion work product (mental notes, impressions and legal theories) seem to be absolutely immune
1) Hickman v. Taylor: 5 crewmembers drowned when tug sank. In anticipation of a possible lawsuit,
Fortenbaugh (s atty) interviewed survivors. brought discovery action to compel Fs interviews,
using FRCP 33
a) Wrong motion: Interrogatories under FRCP 33 can only be asked of the other party (the
himself). should have subpoenaed F (FRCP 45) and taken his deposition (FRCP 36).
However ct didnt want case to turn on technicality, so addressed the heart of the matter
b) Opinion work product: created work product doctrine (FRCP 26(b)(3)) because although
interviews are relevant and not privileged (interviewees were not the client), they were
prepared in anticipation of litigation and protected from discovery.
1) Facts are discoverable, not strategy, to preserve adversarial nature
e. DiMichael v. South Buffalo Ry Co.: EE sued for on-the-job injury and demanded that disclose
surveillance tapes during discovery; AC held that although the tapes were prepared in anticipation of
litigation (privileged), the s need (impact on jury and susceptibility toward editing) and hardship (couldnt
acquire otherwise) overcame privilege

D.

Overview of discovery devices

1.

FRCP 26(a): Required disclosures three times before trial, parties have to disclose information, even if not
requested
a. FRCP 26(a)(1): Initial disclosures must be made 10 days after the initial discovery meeting
i.
FRCP 26(a)(1)(A): Contact information for people used to support claims or defenses
ii. FRCP 26(a)(1)(B): Tangible things, including documents, data compilation
iii. FRCP 26(a)(1)(B): Computation of damages claimed
iv. FRCP 26(a)(1)(D): Insurance agreements

25

b.
c.

FRCP 26(a)(2): Disclosure of expert testimony: identify experts and report of what they will say
FRCP 26(a)(3): Pretrial disclosures: what may be used at trial, including witnesses (contact info), their
depositions, identification of each document or exhibit to be produced. Must be disclosed at least 30 days
before trial
3. FRCP 30: Depositions a party may take the testimony of any person under oral examination, generally
without leave of the court (FRCP 30(a)(1))
a. Must provide reasonable notice to all parties in advance
b. Taken with court-appointed officer present, unless otherwise agreed to by the parties
c. Can ask deponent to bring documents
d. Everything is recorded
4. FRCP 31: Written depositions deponent may be read a list of questions to be answered orally
5. FRCP 32: Use of depositions at trial, depo may be admitted to impeach the witness
6. FRCP 33: Interrogatories written questions answered by written replies under oath; addressed to other
parties only; party must reply within 30 days; limit of 25 interrogatories can be served
7. FRCP 34: Request for production of documents from other party only
a. FRCP 34(a)(1): party may serve a request to produce and permit the party to inspect and copy any data
8. FRCP 35: Request for physical examination of persons parties may compel physical examination of
someone within partys control, by court order (only device requiring court order), and will be given only when
physically condition of a party is at issue
9. FRCP 36: Request for admissions parties may serve upon other party a request for admission or denial of
matters. The matter is considered admitted unless denied, or unless party sets forth reasos why they cant admit
or deny. Takes matters out of controversy; narrows the scope of what is at issue
10. FRCP 37: Motions to compel; sanctions when a party does not cooperate with discovery, can be penalized:
(1) party must get court to compel production, then (2) party can move for sanctions if the compelled party does
not comply (sanction up to courts discretion)
a. FRCP 37(a): Motion to compel party can respond with FRCP 26(c) to protect certain info
11. FRCP 45: Subpoena may be necessary to aid in discovery from persons not party; issued by court, but court
must have SMJ before issuing
E.

In practice: Buffalo Creek Disaster

1. FRCP 26(a)(1): Required disclosures
a. People details on who was injured and what their injuries are
b. Tangible things property lost, insurance policy
c. Damages more specific computation of damages than in Pleading
d. Insurance Provisions
e. Things that are exempt
2. FRCP 30(a) and 31: Depositions (oral)
a. Government official who studied Scot dam
b. BCMC EEs (safety official, etc)
c. Can depose anyone
d. Written depositions rarely used unless you dont care about their demeanor or cant get them in person
3. FRCP 33: Interrogatories
a. Simple, general factual questions
b. Can be sent to other party only (time-consuming)
c. No more than 25 questions; only have to answer with available information
4. FRCP 34 and 45: Documents
a. Maintenance records to show precautions taken after government experts visit
b. Government experts report

26

VII.

SUMMARY JUDGMENT
A.

Overview
SJ is the screening point where its decided whether there are facts in dispute to have a trial. Evidence evaluated in
favor of non-moving party, because it determines whether the party gets to go to a jury. Granting SJ denies (1) right
to jury trial 7th A and (2) due process right to a fair shake, including having all evidence heard.
Difference between SJ and 12(b)(6) motion

Timing: 12(b)(6) follows the pleadings, whereas SJ motion tends to follow discovery

Different hurdles: To get by 12(b)(6), needs to state a claim upon which relief can be granted. Discovery
then puts facts in dispute or shows facts are not in dispute. Neither party can get by SJ if there is no genuine
issue of material fact.

Decision maker: in SJ, the case is taken away from the jury, since there are no facts in dispute (judge can
decide as a matter of law). Generally, s want to go to trial, and s want the case decided by the judge.
Definition of material fact: one which will affect the outcome of the case.
Definition of genuine issue: if a reasonable jury could reach different conclusions about that fact

B.

Procedural basis
1.

C.

FRCP 56 Summary judgment

a. FRCP 56(a): For claimant May move for SJ any time after 20 days from the commencement of the action,
for all or part of the claim
b. FRCP 56(b): For defending party May move for SJ anytime
c. FRCP 56(c): Motions and proceedings after one party has moved for SJ, jment is rendered on the
pleadings, depos and any affidavits, etc, to show that there is no genuine issue of material fact and that the
moving party is entitled to jment as a matter of law
d. FRCP 56(d): Partial SJ case not fully adjudication on motion

Illustrative cases
1.

2.

Scenarios of motion for SJ:

a. HYPO 1

Both parties want SJ to occur; agree on all facts (Pruitt)

When moves for SJ, cross moves for SJ

b. HYPO 2

Moving party () claims that no facts are in dispute (I have all the facts)

Usually , when he has all the witnesses for example

c. HYPO 3

Moving party () claims I have all the facts, and you have nothing to defend on

Lots of evidence () v. Desire to cross-examine ()

Lundeen and Cross

d. HYPO 4

has lots of witnesses, no question as to whether hit with a green car

's witness says drove a blue car

No issue of material fact

e. HYPO 5

Moving party () says you have no facts

However is not the party with the burden of proof at trial

Adickes and Celotex

Valley Natl Bank and Houchens

Conflicting Cases: Presence of fact
a. Valley Natl Bank of AZ v. JC Penney Ins. Co: Bank responsible for deceaseds estate; sued insurance
company for wrongful death; ins. co. moved for SJ due to lack of evidence; SJ denied becase there was a
question of material fact (bullet casings, medical records, police report) for jury to decide.
b. Houchens v. American Home Assurance Company: Deceaseds widow sued insurance company for
wrongful death; ins. co. moved for SJ due to lack of evidence; SJ granted because there was no evidence
to support accidental death claim (only travel docs and medical records)
c. Difference between Valley Natl Bank and Houchens
i.
Both cases relied on factual speculation; but Houchens had no factual support at all

27

3.

4.

Conflicting Cases: Valid Testimony

a. Lundeen v. Cordner: First wife claims dead husbands inheritance. Second wife intervened, claiming the
money, and providing Burks affidavit that Cordner changed the will. Second wife moved for SJ. SJ
granted.
b. Cross v. U.S.: Professor traveled to Europe and wanted tax refund to claim trip as a business expense.
Prof himself was the witness. US moved for SJ. SJ denied, because Cross needed to be cross-examined
at trial.
c. Difference between Lundeen and Cross
i.
Lundeen turned on an unbiased 3rd party witness
ii. Cross turned on the s own testimony, and his truthfulness needed to be judged by a jury.
Conflicting Cases: Burden of Proof
a. Adickes v. Kress: White teacher sued for denial and civil rights when she took black students to a
restaurant and was denied service. claimed conspiracy based on polices presence in the diner. moved
for SJ. SJ denied because the did not meet its burden of proof (that there was no policeman in the diner);
couldnt prove the negative (pro- standard)
b. Celotex v. Catrett: sued for asbestos poisoning to her husband many years earlier. moved for SJ,
claiming that had no evidence to connect ER to asbestos. SJ granted because had no facts supporting
claim in the record. only needed to point to absence of fact in the record (pro- standard), since its
nearly impossible to prove the negative
c. Difference between Adickes and Celotex
i.
In Adickes, had the burden of proving the negative (disprove the presence of a police officer)
ii. In Celotex, only had to point to record to show absence of s facts, and the burden is shifted to to
point to supporting facts (loosened strict standard in Adickes)

28

JUDGMENT
A.

Overview
Types of Judgment
1. Default (during pleading)
2. Motion to dismiss (end of pleading)
3. SJ (right before trial)
4. DV (during trial)
5. Verdict (judge or jury)
JURY
1. When do you get a jury?
2. Whos on the jury?
3. Whats the relationship between the judge and jury at trial?

B.

Rules
2. FRCP 50(a)(1): Directed verdict

C.

The Jury
1.

2.

Constitutional Right to Jury Trial

a. FRCP 38: preserves the right to jury trial as declared by the 7th A in 1791
i.
Applies to federal trials; in state, there is no right to a jury trial except as provided by statute
ii. Historical test is made in terms of whether there would have been right to a jury trial in 1791
iii. 7th A grants right to jury trial at law, as opposed to equity
1) Legal courts $ damages (in 1791, had to be at least $20)
2) Equity courts injunctions
3) Declaratory jments: law or equity based on what jment is about
iv. What if a case has both law and equity claims?
1) Beacon Theatres, Inc. v. Westover: Fox sought injunction to prevent Beacon from filing anti-trust
suit, and declaratory jment that Fox was not in violation of anti-trust law. Beacon counterclaimed
and sought damages for anti-trust violation. Held that constitutional right to a jury supercedes, so
legal claims should be tried by jury first, and equitable claims can be decided by judge after
facts have been resolved.

Jury right is determined issue by issue

Legal issues are tried first

If issue involves both law and equity, it goes to the jury

b. FRCP 39: Trial of all issues so demanded by the parties shall be by jury unless parties agree otherwise.
The court may order trial by jury on any and all issues if the right existed but was not exercised (FRCP
39(b)).
Composition of the Jury
a. FRCP 47: Jurors
i.
FRCP 47(a): the court may allow parties/attorneys to conduct voir dire, or may conduct itself
ii. FRCP 47(b): each side is allowed the number of peremptory challenges provided by 1870 (three,
unless the court allows more
iii. FRCP 47(c): the court may excuse any juror for cause
b. FRCP 48: Number of Jurors: there will be between 6 and 12 jurors chosen and unless parties stipulate
otherwise, the verdict will be unanimous
c. Procedure
i.
Jury pool is complied from voter registration lists and drivers license rolls.
ii. Potential jurors are called to the courthouse, then smaller bunch is called into courtroom (the venire)
iii. Parties conduct voir dire. General and specific questions are asked by judge (including conflict of
interest and case-related questions). Individual litigants get strikes, excusing jurors for cause or using
peremptory challenges.
1) Traditionally, peremptory challenges required gut feelings but no explanation
2) Edmonson v. Leesville Concrete Co. Inc.: In workplace injury suit, s lawyer used 2 peremptory
challenges to remove black jurors. SC held that because jury selection in a federal civil trial is a
state action (not private), peremptory challenges may not remove jurors on the basis of race.
3) JEB v. Alabama: In child support/paternity suit, used peremptory challenges to remove male
jurors. SC held that peremptory challenges may not remove jurors on the basis of gender.
4) Brings up question of excluding stereotypes in general

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3.

iv. Result is the petit jury group of 6-12

The Jury Verdict
a. The types of verdicts:
i.
General verdict: the court instructs the jury on the law, the law is applied to the facts, the jury returns a
verdict and reports to the court which party wins and the relief awarded (if any). Low control of the jury,
and reviewing court doesnt know how jury arrived at their decision.
ii. Special verdict: FRCP 49(a) the court requests the jury to make specific finds of fact and the judge
applies the law to those facts and renders the jment accordingly. Appellate reversals more seldom, jury
control is greater, but deliberations usually take longer.
b. Impeachment of the verdict: usually done only if there is jury misconduct in various ways

D.

Taking the case from the jury

1. FRCP 50(a): Judgment as a matter of law, or directed verdict
Judge is essentially allowed to take the matter away from a jury and decide it himself, in theory because the
result is so clear and overwhelming that a reasonable jury could not disagree.
a. 50(a)(1): allows a party to move for DV after either party has been fully heard and there appears to be
no legally sufficient basis for a reasonable jury to find for a party on the issue
b. 50(a)(2): DV can be brought anytime before submission of the case to the jury ( can move for DV
twice; can only move for DV once)
2. SJ v. DV
3. Timing: SJ follows discovery; DV follows statement of case and production of evidence at trial
4. Standard is essentially the same for both, but difference is timing
5. SJ: judgment not entered yet, but based on the facts there is no case
6. DV: takes judgment from the winning party and gives it to the losing party
7. 12(b)(6): Hold facts as given and ask if there is a legal claim
3. FRCP 50(b): Renewed motion for judgment as a matter of law, or judgment NOV
a. After the jury returns a verdict and judgment is entered, the losing party may renew a 50(a) DV motion
b. Judge may allow judgment to stand, order a new trial or direct entry of judgment as a matter of law
c. Requirement: to move for JNOV, party must have moved for DV during the trial
d. Counterintuitive: Court is saying it erred by sending the case to the jury and shouldnt have gone to fury in
the first place. Ct says there wasnt a factual question to begin with. Essentially the judge is overruling the
jury.
e. In 1791, if party lost DV, he would automatically lose the case (huge risk in making DV, so party would likely
error on side of letting case go to jury)
f. Lavender v. Kern: Switch operator killed on the tracks; train company claims not enough evidence to prove
it was caused by mail hook; trial ct denied s D.V. motion (Rule 50(b)); AC reversed trial cts denial and
granted DV for . Renewed DV balances right to jury and runaway juries. SC upheld denial of D.V.
motion and granted jury for .
4. How to reconcile 7th A and DV?
a. Galloway v. U.S.: s wife sued on behalf of incompetent to prove he was eligible for insurance benefits
due to permanent disability which began before the date that his GI insurance policy lapsed. moved for
DV because s evidence had a factual gap. DV is proper where juries would have to make inferences and
bridge large gaps in testimony. DV does not violate constitutional right of trial by jury.
5. FRCP 59: New trial: when the verdict for one party is supportable, but against a clear weight of the evidence, the
judge may order a new trial. Less severe and radical than DV or JNOV, because new trial simply starts over.
Still takes jment from the winning party but does not award it to the other side.
a. Usually done in cases of mistake during trial: misconduct, error, etc.
b. Parties usually move for JNOV or, in the alternative, a new trial
c. Special new trials:
i.
Partial new trial: judge may order new trial of certain issues only (more efficient, but this can only be
done when issues are separable
ii. Conditional new trial: liability is clear but damages are way off. Judge can give new trial unless the
opposing party agrees to take a specified reduction or increase in verdict
d. Aetna Casualty & Surety Co. v. Yeatts: After jment for , moved for JNOV and a new trial. According to
FRCP 59, the trial judge has the discretion to grant a new trial even if the circumstances would prevent
JNOV or DV.
6. If moves for both renewed DV and new trial, court must rule on request for new trial even if it grants
renewed DV. This gives guidance to a future court, if the renewed DV is reviewed.

E.

Trial by judge

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1.
F.

FRCP 52(a): in trial by judge, judge has to make findings of fact and list them separately (juries are only required
to determine liable or not liable). Findings of fact will not be set aside unless clearly erroneous.

The Judgment
1.

2.

3.

FRCP 54: Judgments

a. FRCP 54(a): Definition: any decree or order from which an appeal lies
b. FRCP 54(b): Multiple claims; multiple parties: jment entered on less than all claims presented is not
immediately appealable; generally must wait until jment on remaining claims is entered (unless a ct makes a
jment final and thus immediately appealable by certification (1292(b))
FRCP 60: Relief from judgments
a. FRCP 60(a): Clerical mistakes: may be corrected by the court or on the motion of any party
b. FRCP 60(b): Other mistakes: other mistakes may serve to relieve a party of a jment, such as jment due to
mistake, surprise, excusable neglect, or that jment was obtained fraudulently. These, and other grounds
(that the jment is void, has been satisfied, circumstances have changed, relevant law has changed) are
interpreted narrowly.
c. FRCP 55(c): relief from judgments is most often done when a default jment has been entered, reflecting the
courts flexibility to allow everyone (such as a defaulted party) to have their day in court.
FRCP 61: Harmless error: ones which do not affect the substantial rights of the parties are not grounds for new
trial, setting verdict aside, or modifying the court order

G. Appeal
1.

2.

3.

The final judgment rule

a. From 1291: parties cannot appeal until the court issues its final jment meaning that the entire case
on the merits must be wrapped up, even if the judge makes all kinds of mistakes throughout the trial
b. Remember: state courts dont have to follow this rule
c. Essentially the question to ask is: after making the order, does the judge have anything left to do on the
merits of the case? If so, not a final jment.
i.
Example 1: A moves for SJ; court denies. A cannot appeal because the case is still going.
ii. Example 2: B moves for new trial; court grants. A cannot appeal because the new trial has yet to
happen.
Exceptions to the final judgment rule (interlocutory decisions and appeals)
a. 1292(b): allows appeal of non-final orders only if the trial judge states that he believes there is a
controlling question of law (in partial judgment) such that it can be appealed immediately. Trial court
certifies a question to the appellate court and waits for an answer before proceeding.
b. 1292(a): interlocutory orders: orders involving injunctions, or compelling other immediate actions to take
place (like sale of property) may be appealed essentially, any court order that reaches out and changes
something and has real-world consequences immediately can be appealed
c. FRCP 54(b): judgments on separate claims may be appealed separately. If claim #1 is settled and ct has
issued a jment on it, claim #1 jment can be appealed.
d. FRCP 23(f): grant or denial of class certification can be appealed
e. Liberty Mutual v. Wetzel: asserted insurance benefits violated Title VII (no pregnancy leave). No facts in
dispute; both sides move for SJ. Court granted partial SJ to , but didnt yet decide on the type of relief.
appealed the partial SJ.
i.
Partial SJ was not appealable under 1291
ii. Partial SJ was not appealable under FRCP 54(b) exception because made a single claim with
several types of relief, not separate claims.
iii. Partial SJ was not appealable under 1292(a) because the liability claim was not injunctive; it was
declaratory
iv. Partial SJ was not appealable under 1292(b) because the procedural requirements were not met
(wasnt filed within 10 days)
Nature and scope of review typically depends on two things:
a. Nature of the error alleged
i.
Issues of law reviewed de novo the appellate court is equally able to make law decisions or
change existing law
ii. Issues of fact typically not reviewed the appellate court defers to trial court judge because he was
present, saw the witness and heard the testimony
a) If the finding was clearly erroneous, the appellate court is free to review the finding, if the
evidence leaves the appellate court with the definite and firm conviction that a mistake has been
committed
iii. Mixed questions unclear often with be de novo

31

b.

H.

Jury or non-jury trial

i.
Issues of law reviewed de novo
ii. Issues of fact more deference to findings of fact by jury than by judge

Finality and Preclusion (collateral review)

Once a party has been allowed its day in court, preclusion represents strict prevention against re-litigation
a. Policy reasons for preclusion:

Efficiency minimizes redundant litigation; encourages parties to be thorough in adjudicating all related
claims and all related parties

Justice and consistency dont want to have inconsistent outcomes (trainwreck hypo); unfair to make
party who won have to litigate again

Legitimacy respects a jment that the judicial system has made

1.

2.

Claim Preclusion (Res Judicata) same t/o, same party or privity / doesnt get into court
a. Essentially prevents the same claim from being re-litigated
b. The rule: If a party brings a claim and (1) a final, valid decision is made (2) on the merits of the case, (3)
he is barred from bringing that claim or any claim arising out of the same transaction or occurrence that
could have been brought, in a subsequent suit (4) against the same party or parties
c. Merger: if the party won case #1, he says that claim #2 is merged into the jment
d. Bar: if party lost case #1, the opposing party says that claim #2 is barred by the jment
e. Illustrative cases
i.
Rush v. City of Maple Heights splitting claim into 2 cases CP (merged)

Case #1: sued City for personal injury; won

Case #2: sued City for property damage

After winning case 1, Rush ran issue preclusion against City, holding up jment in case 1; City ran
defensive claim preclusion saying that Rush already had day in court (same parties). City won claim
preclusion. Ct held that because won case #1, the claim is merged into the first decision.
ii. Mathews v. New York Racing Assoc. Party #2 in privity CP (barred)

Case #1: sued EEs for assault and libel; won

Case #2: sued ER for false arrest

ran claim preclusion, saying that case #2 was same t/o. In order to qualify, must show that it is in
privity with 1, to be the same party. Claim preclusion is preferable to issue preclusion, because claim
prevents parties from having to go to court at all. Ct held that because lost case #1, he is barred by
the first decision.
iii. Mitchell v. Fed. Intrmed.Crdt Bnk cant bring compulsory countercl later CP merged

Case #1: Bank sued Mitchell on promissory notes, Mitchell won

Case #2: Mitchell tried to sue bank for amount owed on notes
Court found that Mitchells claim in Case #2 was a compulsory counterclaim in Case #1, and couldnt be
brought later. Claim #2 merged into first jment.
v. Linderman v. Hillenbrand jment #1 did not decide issue in case #2 Not barred

Case #1: L sued H to recover money owed for machine sold to H, H won (L made fraud
representations)

Case #2: H sued L to recover damages for fraud; L said claim was compulsory in case #1 and
should be barred
Because Case #1 was not conclusive on the issue in case #2 (no final, valid decision), H gets a day in
court on his claim and is not barred by case #1.
Issue Preclusion (collateral estoppel) same issue was actually adjudicated / still gets into court
a. Simply prevents the same issue from being re-litigated. Smaller scope than claim preclusion.
b. The rule: if (1) the same issue has been (2) actually adjudicated (not should have been as in claim
preclusion) and (3) decided, and (4) was essential to the jment and therefore has been given finality
(valid, final, and on the merits), relitigation of that issue is estopped
c. May only be asserted against someone who was a party in case 1 (mutual CE)
d. Mutuality: both parties must be bound by first jment to use it for IP, however might have inconsistency
across 50 cases
e. Non-Mutuality: May be asserted by someone who was or was not a party in case 1
i.
Non-mutual defensive IP: seeks to preclude relitigation of an issue he won in case #1 permitted
as long as had a fair opportunity to litigate the issue
1) Benefits: efficiency
ii. Non-mutual offensive IP: seeks to avoid relitigation of an issue he won in case #1
1) Policy concerns with non-mutual OIP:

32

f.

a) may not have litigated case #1 vigorously

b) Jment relied upon may have been inconsistent with prior jments (trainwreck hypo);
c) Case #1 lacked procedural opportunities available in Case #2
d) Inefficient
e) Non-bound party enjoys the benefits of jment and no penalty
f) Dont want to encourage sideline sitting
2) However, non-mutuality is allowed because this is preferable to the inconsistency across 50
cases
Illustrative cases:
i.
Cromwell v. County of Sac no IP unless issue was actually litigated

County issued fraudulent bonds for courthouse that was never built. Bonds could have been (1)
part of fraud, or (2) bought later on the open market.

Case #1: Smith v. Cty; bonds were fraudulent (type 1)

Case #2: Cromwell v. Cty; if his bonds are type 1, the issue is precluded by case #1. However
they could be type 2, so he gets a day in court
ii. Russell v. Place Jment #1 not specific; no IP if issue was not decided

Case #1: v. Patent infringer; won

Case #2: v. Patent infringer (continued to infringe), tried to hold up case #1 for IP
There were two processes (use of fat and treatment of leather) protected by the patent. Because jment
#1 didnt specify which issue the won, it was not decided in jment.
iii. Bernhard v. Bank of America dismisses mutuality requirement; DIP

Elderly woman gives caretakers permission to open bank accounts for her

Case #1: B (heir) v. Cook, jment for , saying money was a legit gift

Case #2: B v. Bank (acctg fraud against the trustee)

Bank asserts claim preclusion, but cant apply because it wasnt in privity with the caretaker (1).
Bank asserts defensive issue preclusion, however, argues that there was no mutuality (wasnt
bound by case #1) so bank shouldnt be able to hold up jment. Court gets rid of mutuality
requirement. not allowed to use OIP because bank hasnt had day in ct. Non-mutuality is allowed
because this is preferable to the inconsistency across cases.
iv. Blonder-Tongue Labs v. Univ. of IL Foundation non-mutual DIP (upholds Bernhard)

Univ. goes after two parties for patent infringement

Case #1: Univ. v. Infringer; patent was invalidated

Case #2: Univ. v. BT

BT asserts defensive issue preclusion, because patent was invalidated in case #1. Univ. tries to
use mutuality argument (that BT wasnt a party to case #1), but that was dismissed in Bernhard.
BT can run DIP.
v. Parklane Hosiery Co. v. Shore non-mutual OIP

Case #1: SEC v. Parklane; jment for SEC because Parkland issued false proxy statmt

Case #2: Shore v. Parklane; Shore held up jment in Case #1 to run non-mutual OIP

Non-mutual OIP may be unfair to (if he didnt vigorously argue case #1) and encourage sidelinesitting. Court allowed non-mutual OIP because had incentive to vigorously litigate case #1 and
SEC could probably not have joined Shore in case #1
vii. Train wreck hypo

Suppose train wreck injures 50 passengers, and each brings suit against RR. If 1 won case #1,
then 2 could run non-mutual OIP. However, if what if 25 s lose, and then the 26 s win?
o Seems unfair for future s to take advantage of one anomolous jment
o Rivaling concerns: accuracy, legitimacy (sacrifices consistency), due process
o However it would be possible for 25 s to win and 25s to lose, because jury is evaluating
each particular set of facts, which could be different
o Non-mutuality is allowed because this is preferable to the inconsistency across 50
cases
viii. Toxic spill hypo

Supposed case is resolved to cover all people who suffer or might suffer from toxic spill and a
fund is set up. If the gets symptoms 10 years later, is he barred?

Extended exposure cases should be litigated at different points in time; could establish liability
immediately, but then allow s to sue for damages as they appear.

33

X.

ALTERNATIVES TO LITIGATION
A.

Alternative Dispute Resolution; Arbitration

1.

The need for ADR (p1285)

Time: traditional adjudicatory process takes too long

Too expensive: attorney fees and court costs

Role of lawyers might need to be reduced: because lawyers tend to categorize and abstract real human
disputes and contentions

Inappropriate for some disputes: such as those centering on continuing relationships (family)

Amount in dispute: not always related to the complexity of the claim

2.

How do we evaluate a dispute resolution mechanism (p1290)

Who resolves the dispute? (judge, lawyer, expert, neutral third-party, the disputants themselves)

What is the source of the standard for resolution? (law, prior practice of others similarly situated,
community values)

How are the disputants represented? (lawyers, those with legal training, the disputants themselves)

What is the nature and extent of fact-finding and standard-finding? (disputants and/or reps could be
responsible for research and presentation of evidence; resolver could aid the disputants; resolver could be
responsible)

3.

ADR mechanisms

Small-claims court for small claims, usually < $750 judge is resolver and takes active role in factfinding, but the disputants themselves do most marshaling of the evidence. The law is the standard.

Arbitration less formal, quicker, less complex. Resolver may or may not have legal training, but is
empowered by disputants to render decision. Disputants may be represented by lawyers, and procure
evidence.

Final-offer arbitration typically used to negotiate contracts; resolver chooses between one or the other
disputants final offers of settlement.

One-way arbitration only one party agrees to be bound; sometimes used by corporations in response to
consumer complaints.

Court-annexed arbitration certain disputes given to an arbitrator before court hears them.

Private judging disputants hire a private judge. Done like a bench trial, but simplified. Decision can be
appealed.

Negotiated settlement disputants themselves resolve the conflict.

Mediation mediator helps disputants resolve conflict, but mediator is not empowered to render a decision
but there are many different forms.

Court-annexed mediation disputants have not agreed to mediate; court compels mediation before hearing
a case. If disputants do not reach decision, goes to trial.

Neighborhood justice center mediation by standards of community; disputants represent themselves.

Ombudsperson third party who receives and investigates complaints aimed at an institution by clients or
employees

Mini-trial private proceeding bearing many similarities to full trial; resolver is retired judge or a respected
lawyer; facts and standards have been researched.

Summary jury trial lawyers present an abbreviated case before six jurors the verdict provides the basis
of settlement.

34

4.

Arbitration in employment contracts creating a new procedure (K around the FRCP)

a. Hooters of America v. Phillips
i.
Facts: alleged sexual harrasment and brought suit to compel arbitration clause set forth in EE K.
Court examined the ADR clause for validity:

Non-neutral forum (selected by ER)

Unequal procedures (favored ER)

o ER not required to respond to EE pleading
o ER not required to make initial disclosures
o EE cannot move for SJ
o EE cannot appeal SJ

Unfair arbitration selection (based on ERs list)

ii. Holding: The rules were so biased that it breached the arbitration agreement K. ER executed the K in
bad faith; not bound
a. Morrison v. Circuit City Stores
i.
Facts: (EE) brought Title VII employment disc claim. pointed to arbitration clause in EE K. Court
examined ADR clause for validity:

More symmetrical than Hooters

Reduced statute of limitations

Limited EEs discovery

Limited EEs recovery

ii. Holding: Court found procedures fair and reasonable. EE argues 7th A violation, because AA prevents
jury trial, but Ct finds that federal approval of AAs mean that s rights are protected. Because
Congress passed the Federal Arbitration Act (AA), indicated that parties can agree to a different
procedural system (set out by ER) as long as they are fair.

35

II.
1.
2.
3.
4.

GLOSSARY

Plea in abatement: objects to the jurisdiction of the court (not here); does not address underlying merits
Motion to dismiss: see Plea in abatement
Legal formalism: law as a science; use principle, apply to facts, and reach a result
Legal realism: people have hunches, filter facts through those hunches, and reach a result

36