Chapter 1: Introductory Survey

FR 12(b)(1), 12(b)(6)
FR 11
FR 8(a)
FR 50
FR 15
FR 20
FR 26, 26(c), 26(b)(1)
FR 45(a)(1)
FR 56
USC 1332(a), 1332(b) Fed. Ct. original juris.
USC 1291
Hawkins v. Masters Farms, Inc. D. Kan. 2003.
P Hawkins rep. estate of Creal files suit in federal court alleging diversity jurisdiction.
Creal killed in Kansas by KS driver; live there with wife for 1 year; moved possessions there.
Creal visited mother in Missouri 1 x week; car title and license there; mail and pay stubs; address on ins.
Domicile established by physical presence and state of mind intending to remain there.
Creals connections to Kansas overrode connections to Missouri. Motion to dismiss granted for D.
Jurisdiction can decide case before it ever goes to trial.
Subj. matter juris. for Fed. Courts when diversity of parties. Article III of Constitution.
Why lawyer brought suit in Fed. Ct.: Creal was out-of-towner. Wanted bigger jury pool than small town.
Erie R.R. v. Tompkins: When Fed. Ct. hears a case, must apply same law the state court would.
Theme: Division of power between state and federal government: political bargain of 1789.
Bridges v. Diesel Service, Inc. E.D. Pa. 1994.
Bridges brought suit against employer for discriminating against him for disability in violation of ADA.
Trial Ct dismissed complaint bc plaintiff failed to exhaust admin. remediesshould have filed complaint with
Eq.Employ.Op.Commission (EEOC).
D moved for sanctions against P Rule 11: reasonable factual investigation before filing suit. (Motion denied.)
Counsels signature certifies pleading is supported by R.F.I. and competent level of legal research.
Holding: Rule 11 sanctions not necessary bc designed to punish improper conductnot fee-shifting device.
Theme: Procedural errors can kill your caseyou certify having evidentiary support when you sign complaint.
Bell v. Novick Transfer Co. D. Md.1955.
Infant P Bell was in auto collision; filed suit against driver and company owning tractor-trailer.
D moved to dismiss for failure to state a claim; no specific allegations of negligence.
Holding: Claim meets requirements of Rule 8: short and plain statement. Motion denied.
Theme: If we make it easy to let weak cases get by thru easy pleading, waste time and money. If we make it
hard and require detailed pleading, some good cases will die before discovery, denying worthy plaintiffs.
Theme: Does notice pleading conflict with Rule 11? Before you sign complaint, need evidentiary basis.
Pleading has gotten harder after Iqbal.
Larson v. American Family Mutual Ins. Co. D. Colo. 2007.
Ins. Co. did not pay house-fire claim; P retained Ross-Shannon as attorney.
He moved slowly on case bc in negotiations to represent ins. co.; P got new counsel, filed suit against ins. co.
P amended complaint to join Ross-Shannon in suit on claims of malpractice, br. of fiduciary duty, conspiracy.
D objected that civ. conspiracy claim unsupported, so no joinder bc remaining claims did not arise out of
same transactions or occurrences (Rule 20(a) also requires common q. of law or fact for all D).
Holding: conspiracy claim is supported, joinder permitted bc claims arose from same trans./occ.
Larson lawyer strategy: keep case in state court by joining Ross-Shannon, destroying diversity.
Removed from State to Federal court Remanded from Federal to State court.
Outcome turns on interpretation of Rule 20 idea of what counts as common issue of law or fact.

Butler v. Rigsby E.D. La. 1998.

Butler sued driver and employer of truck that collided with him.
D requested documents from medical groups AMG and MHC that provided medical treatment to P.
Med groups moved for protective order prohibiting discovery on grounds: not relevant, provider-patient
privilege, and overly burdensome.
Rule 26(b): Documents requested in discovery do not have to be admissible as long as they lead to discovery
of admissible evidence. Discovery: relevant, unprivileged, not more burdensome than beneficial.
Rule 26(c): Ct may make any order to protect party from annoyance, embarrassment, oppr., undue bur./exp.
List of total no. of patients referred to med groups by P lawyers: relevant and benefit greater than burden.
Net income of entities and % of income litigation-related: relevant bc shows bias/finan. interest of witnesses.
Computer printout of current patients: violates doctor-patient privilege. D pays costs of obtaining other files.
th
Houchens v. American Home Assurance Co. 4 Cir. 1991.
Ps husband disappeared in Thailand and not seen for 8 years
Circuit Court declared him presumed dead under VA law. (State law used bc of Erie.)
Two life insurance policies, both requiring accident as cause of death.
P brought suit for breach of contract after ins. would not pay out: no evidence of death, or accidental death.
D filed for summary judgmentgranted bc Ct held no dispute as to facts, just inferences made from facts.
What if: witness saw him killed by bus in BangkokNo summary judg.; reasonable juror could believe witness
What if: Thai police say no accident; died in drug bustNo summary judg.; there will be trial if P pushes for it.
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Norton v. Snapper Power Equipment 11 Cir. 1987.
Norton, on Snapper commercial lawn mower, started sliding back on a hill and fingers were amputated.
Norton sued in Fed Ct (div. juris.) & Snapper moved for directed verdict; Ct. left strict liability claim for jury.
Gen. issue: Was Snapper mower unreasonably dangerous given technology available at the time?
Specific issue: Should Dead Man shut-off have been installed in 1981/did lack of shut-off cause injury?
Jury found Snapper 80% liable; Dist. Ct. entered J.M.L. for D because jury could not have found defect in
1981 model to have caused injury bc not clear whether technology was available/low cost in 1981.
Appellate Ct. reversed: reasonable jury could have found mower defective by reconstructing series of events
with inference upon inference.
Why did judge first refuse to grant JML before trial, then enter JML after jury verdict came back?
If directed verdict, then reversal by appellate court, a new second trial.
If denial and let jury decide case, they might agree theres no causation and trial concludes.
If jury doesnt agree with me on causation, I can enter JML and case doesnt have to be tried again.
Rush v. City of Maple Heights US 1958.
P riding motorcycle ran over pothole and sustained injury.
Brought suit for property damage in Municipal Ct: judgment for P that City was negligent, damages for $100.
Subsequent suit brought for personal injuries in same accident; P alleged issue of negligence and prox.
Cause determined in first suit were binding.
State Ct judgment for P, damage for $12,000. Appealed to Supreme Courtreversed.
Overturned Majority Rule: injuries to person and property resulting from same act are different causes of
action; no preclusion.
Court upheld Minority Rule: Claims arising from the same trans./occ. are precluded from being raised again.
st
nd
Rush lawyers (wrong) strategy: easy to win in 1 case for little $, then ruling is binding in 2 suit for more $.
Apex Hosiery Co. v. Leader 3d Cir. 1939.
P sued for damages under Sherman Anti-Trust Act; D appealed judges order to produce documents (FR 34)
Ct of App said order was interlocutory and therefore not appealable.
Steps of a lawsuit
1. Complaint state or federal? Pers. Juris. = D has connection to state. Subj. Mat. Juris. = Defined by legis.
2. Service of Process waiver of service or summons
3. Pre-Answer Motions
4. Hearing/Ruling on Motions
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5.
6.
7.
8.
9.
10.
11.
12.
13.

Answer counterclaims, cross-claims, third party claims

Amendment of pleadings
Discovery/Settlement
Summary judgment motions
More Settlement talks
Trial and trial motions
Judgment
Appeals and more settlement talks
Other endings:
a. Abandonment
b. Adjudicated disposition without trial
c. Adjudicated disposition with new trial

The Federal Rules of Civil Procedure

- Became effective 1938. Restyling in 2007.
- Congress delegates power to Supreme Court SCOTUS delegates power to committees.
- Committee on Civ. Rights [judges, lawyers, professors] apptd by Chief Justice Consider proposed changes.
- Revised Rules submitted to Standing Committee on Rules of Prac., Proc., and Evid. Refines proposals.
- Passed on to Judicial Conference of US presided over by Chief Justice.
- Court sends final changes to Congress enacts or blocks Rules.
- Substantial majority of States (35) have adopted as their Rules.
- Cannot modify a substantive right.
Complaint
- Must state claim upon which relief can be granted: 12(b)(6) Motion (Demurrer)
- Rule 8(a)(2): short and plain statement of the claim showing pleader entitled to relief.
Discovery
- 3 restrictions under Rule 26(b)(2) and (c): relevant, not privileged, not more undue burden or expense than benefit
- Disclosures: Rule 26(a)(1). Interrogatories: Rule 33. Producing records: Rules 34, 45. Phys./Ment. Exam: Rule 35
Appeals
- Depend on: error in trial court plus error resulted in erroneous outcome.
- CAN appeal Rule 12(b)(1) motion to dismiss on grounds of jurisdiction.
- CANNOT appeal Rule 26(c) motion for protective order blocking requested discovery.
- Cant appeal interlocutory judgment final judgment rule but Fed. Courts have statutory exception to rule.
Summary Judgment After discovery is complete: no genuine dispute as to any material fact. Rule 56.
Default judgment D fails to answer complaint/defend. Rule 55.
Dismissal P fails to comply with orders of court. Rule 41(b).
Voluntary Dismissal P seeks if he thinks hed be better off starting over. Rule 41(a).
Directed Verdict Judge can refuse to submit case to jury. Rule 50(a).
Judgment as a Matter of Law Reverse jury decision. Rule 50(a). Also; J. N. O. V. or J. notwithstanding V.
Trial Fewer than 5% of Fed. Ct. cases go to trial.
History of Procedure
1. 1100-1800: Early Common Law: all procedure based on case-by-case rulings
2. 1789-1850: Early US Law: Occasional statutes supplemented by inherited English Common Law procedure
3. 1850-1938: State legislatures began regulating procedure by statutes.
4. 1938: Federal Rules plus statutes; some procedure still regulated by common law (eg. principles of former adjud.)

Chapter 5: Incentives to Litigate

FR 64
FR 65(d), 65(a), 65(b)
FR 23(e), 23(h)
FR 54(d)(2)
USC 1292(a)(1)
State Farm Mutual Automobile Insurance Co. v. Campbell US 2003.
First case: Ospital and Slusher v. Campbell (negligent driving killed one, injured other).
State Farm ins. co. decided to contest liability; declined offer to settle for $50,000 policy limit.
State Farm lost at trial and jury awarded $185,849 to P. Why not settle? Intimidate Ps bar from bringing suits.
State Farm would not allow Campbell to appeal; obtained own counsel but UT Supreme Ct denied his appeal.
Campbell sued State Farm for bad faith, fraud, and IIED.
Presented evidence that case part of natl co.-wide scheme to meet corp. fiscal goals/cap payouts on claims.
Allowed to introduce evidence about fraudulent practices outside of UT.
Jury award of $2.6 mil compensatory damages and $145 mil punitive damages.
Supreme Ct pointed to 3 guideposts for review de novo of damages (BMW of North America v. Gore):
o Degree of reprehensibility of defendant
Physical rather than economic harm
Reckless disregard for health/safety of others
Financial vulnerability of target of conduct
Repeated actions rather than isolated incident
Intentional malice, trickery, or deceit rather than mere accident
o Disparity between harm suffered by P and punitive damages award
o Difference between punitive damages award and civil penalties imposed in comparable cases
State Farms cannot be punished for harm outside States jurisdiction or beyond that to P
Damages cant stand in for adjudication of potential other parties hypothetical claims
Most relevant civil sanction was $10,000 for fraud.
SCOTUS declined to draw bright-line ratio that punitive damages cannot exceed.
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Holding: Excessive damages violates Due Process of 14 amendment (how to get around state law issue).
Dissent (Scalia, Thomas): Nothing in Constitution controls State punitive damages awards.
Dissent (Ginsburg): Court should not reform State law; this is legislative question.
Takeaway: Punitive damages more than 9 x compensatory damages are excessive; consider proportionality
State Farm cuts off some of the tailmoves damages back into middle of the spectrum.
Sigma Chemical Co. v. Harris E.D. Mo. 1985.
Sigma specialized in knowing which supplier sells particular chemical for particular purpose/price.
Employee Harris worked under contract that he would not work for competitor for 2 years after leaving Sigma.
Harris lied about leaving to work at ICN (competitor of Sigma); revealed trade secrets at new job.
Sigma got temporary restraining order against himhe violated by continuing to work at ICN.
Permanent injunctive relief: Ct balances hardship on P vs. on D if granted; P must have no suff. legal remedy.
Holding: Strong threat of irreparable harm to Sigma if Harris continues to work at ICN; potential harm to Harris
not that great bc other former employees found jobs at non-competitor companies; Harris took calculated risk.
D permanently restrained from 1) services for ICN, 2) using or disclosing Sigma trade secrets.
Why didnt Sigma seek econ. damages? Harris knowledge worth more than what he can pay them.
Real win? Harris can still work for ICN and restraining order difficult to enforce.
Cheaper/easier way to get desired result? Apple v. Samsung says no.
Why didnt Samsung seek advance declaratory judgment of non-infringement? Would have taken too long.
Evans v. Jeff D. US 1986.
Who are parties? Evans was Gov. of Idaho; Jeff D. was minor and disabled so first name used.
Class action lawsuit brought by P class of emotionally/mentally handicapped children against state of ID.
P alleged treatment of children violated State/Fed Constitutions; Ps lawyer employed by ID Legal Aid Society.
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 D offered settlement whether P get all injunctive relief sought but would have to waive shifting attorneys fees.
Cts holding: No ethical dilemma for Ps lawyerprof. standards require doing whats best for client, not self.
Ps lawyer should have taken settlement bc results would be better than what could be achieved at trial.
Dissent (Brennan): Upholding this kind of settlement offer will cause public interest litigation to dry up.
If settlement, why did it go to court? Class action/Minors/Handicapped settlements need judicial approval.
That judicial approval = judgment that can be appealed (unlike normal settlementsno appeal).
After this case Legal Aid societies required agreement not to take settlements that waived attorney fees.
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources US 2001.
WV state regulations required residents to be sufficiently ambulatory to get out of a burning building.
Care homes alleged reg. violated fed. housing and disability statutes; sought injunctive and declaratory relief.
WV legislature changed the law while lawsuit was in discovery; Ct granted Ds motion to dismiss.
P requested attorney fees as prevailing party under W theory that they made leg. change the law.
Holding: Fees Act does not grant attorney fees under catalyst theory; Ds change in conduct wont
automatically moot the case as long as P has cause of action for damages.
Dissent (Ginsburg, Stevens, Souter, Breyer): Unwarranted that prevailing party read so strictly that it
excludes P whose suit prompts precise relief she seeks, but who lacks court entry memorializing victory.
Takeaway: Ct interprets prevailing not as getting what you wanted, but getting Court judgment in your favor.
Does ruling void catalyst theory? Not at state level, just in federal courts (ruling interprets federal statute).
Methodological point: Supreme Courts interpretation of federal law affects all courts understanding of the
federal law, but does not establish binding interpretations for state laws with similar language.
Aftermath: Future fed. Caes under similar statutes will not award fees under catalyst theory, but fed.
legislation can overrule Buckhannon by adopting catalyst theory for future cases by statute.
Winter v. Natural Resources Defense Council, Inc. US 2008.
NRDC seeking preliminary injunctive that Navy stop violating Marine Mammal Protection Act until they prep.
environ. impact stmt for injuring mammals using sonar systems in training exercises at sea off CA coast.
Sec. of Defense can exempt any action from if necessary for national defense.
Courts 4-part test for preliminary relief
o P would prevail on merits of case.
o P likely to suffer irreparable harm in absence of preliminary relief.
o The balance of equities tips in Ps favor.
o Injunction is in the public interest.
Holding: injury to marine animals outweighed by public interest in Navys effective training. Must be LIKELY
that P will be harmed as well as likely to prevailsliding scale is too lenient.
Dissent (Ginsburg, Souter): Sliding scale on which equitable relief evaluated: more likelihood of success
requires less likelihood of harmif sure of winning on merits, then just possibility of harm required.
Gets to SCOTUS w/o final judgment under USC 1291.
States and govt have sovereign immunity but individual (Sec. of Navy Winter) can be sued.
Fuentes v. Shevin US 1972.
Fuentes bought gas stove/phonograph from Firestone; signed waiverseller could repossess if she defaulted
When $200/600 remained on balance she got into dispute with company and stopped making payments.
Firestone got writ of replevin from small claims court; Fuentes sues for infringement of Due Process rights.
Plaintiff has a right to notice and hearing while deprivation can still be preventedopportunity to challenge.
Some kinds of seizure without notice/hearing still allowed for public interest: collecting taxes, avoiding bank
failure, national war effort, protection from contaminated food and misbranded drugs; towing cars.
How did Fuentes finance litigation? Legal Aid.
Test for whether seizure without hearing violates Due Process
o Private interest affected; risk of erroneous deprivation.
o Value of additional procedural safeguards.
o Governments interestfiscal and administrative burdens.

Litigation statistics
- 41,000 Federal civil cases/year
- Median time to trial for all cases: 18 months+
- 95-98% of US litigation in State Court; 106 million cases in 2008.
- 54% of those are traffic cases
- 48 million non-traffic cases
- Remaining 46% (almost equal criminal and civil dockets)
o Criminal 44%
o Civil 40%
o Domestic 12%
o Juvenile 4%
- 19 mil civil lawsuits/year up 67% over last 20 years (also up: GDP and pop.closer correlation w/ econ. activity)
o Small claims 19%
o Probate 15%
o Mental health 2%
o Civil appeals 1.1%
o Real property 1.1%
o Other 4.1%
o Torts 4.4%
Disproportionately represented among cases going to trial bc material facts usually in dispute
90% before jury
27 mo. average time to trial 4 days average length of trial
Plaintiffs win 50%
Median recovery $21,000 bench; $24,000 jury
5.7% end in $1 million+ recovery
o Contracts 54%
65% Debt collection
Mostly bench trials
21 mo. average time to trial 2 days average length of trial
Median recovery $25,000 bench; $75,000 jury
8.3% end in $1 million+ recovery
- 3% of cases go to trial most end in settlement or abandonment
- Jury trial: 70% - Judge trial: 30%
- Jury awards have declined by 40% since 1992
- Long tails of damage awards: high damage awards are outliers but get a lot of attention.
- Theme: Speed vs. Quality, Fairness vs. Justice
- Of 250,000 cases each year, only 85 decisions granted certiorari by Supreme Court
Remedies
1. Substitutionary: provide plaintiff with reasonable substitute
a. Most common: money damages
b. Noneconomic damages barred entirely for certain categories of cases (i.e. emotional distress in CA)
2. Specific: restore directly and specifically what has been taken from the plaintiff
a. Courts can order parties to do something or refrain from something; recapture personal or real property.
b. Agreement beforehand: liquidated damages clause of contracts
c. Reasonable in light of anticipated/actual harm; unreasonably large = void as penalty. UCC 2-718(1).
d. Punitive damages for wrongful behavior
a. Only 5% of plaintiffs win
b. Median award $64,000
c. Constitutionality questioned by SCOTUS
th
1. Browning-Ferris Indus. V. Kelco Disposal: 8 amendment does not limit punitive
th
damages, but Due Process clause/14 amendment does for civil damages.
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2. Honda Motor Co. v. Oberg: Appellate review of punitive damages.

3. Cooper Industries, Inc. v. Leatherman Tool Group, Inc.: Appellate review of punitive
damages must be de novo.
4. BMW of North America, Inc. v. Gore: Guidelines for punitive damages: relate to the harm.
a. Lays out 3 part test for de novo appellate review.
i. Reprehensibility of defendant. How reprehensible is the conduct?
ii. Disparity b/w Ps harm and damages award. Focus of evidence
harm to P in this state, not elsewhere?
iii. Difference b/w award and comparable civil penalties.
Disproportionate? 9x is guideline after State Farm.
3. Two kinds of remedies
a. Equitable remedies Courts of Chancery/Equity
a. Rescission/cancellation of contract.
b. Constructive trust.
c. Injunctions.
d. To get one: must prove harm is irreparable so money damages are not adequate.
b. Legal remedies Common Law Courts
a. Action in replevin: recover personal property
b. Action in ejectment: recover land wrongfully in possession of another
c. Writ of mandamus: court orders lower court/public official to perform act required by law
d. Habeas corpus: civil writ used more in criminal casesjustification for holding someone prisoner
4. FR 1 merges equity and common law courts in federal system.
5. Declaratory relief sought mostly in patent/insurance litigation.
Punitive damages 3 requirements for Due Process. Phillip Morris USA v. Williams (2007)
1. Procedural: comp. damages make P whole; pun. damages = deterrence/retribution.
a. De novo appellate review.
b. Tailored written jury instructions.
2. Substantive: cannot consider harm beyond Ps own circumstances. Look to Gore 3-part test.
3. Evidentiary-jurisdictional: relevant civil sanctions
Bruce & Amy Hypothetical: Sad UCLA Story
- Bruce tells you Amy ran into on purpose.
o You can get compensatory and punitive damages (multiply by 9 for outer limits).
o What should lawyer do?
See what kinds of damages awarded in comparable cases.
Before you sign complaint: reasonable investigation and evidence that Bruces story checks out.
Look at: security camera, med. bills, witness depos, garage tire marks, police rpt/interview w/Amy
Collectability is only based on how much Amy hascheck bank acct or insurance policy.
If there is a criminal case do civil one firstotherwise claim preclusion.
- Amy starts harassing Bruce.
o What relief? Injunctive relieftemporary restraining order. Contempt of court/jail if she violates order.
- Amy takes Bruces property but does not destroy it.
o What relief? Replevinspecific remedy. Or substitutory damages.
Financing Litigation
- American rule: each party pays its own fees.
- English rule: losing party (defendant) pays both its own fees and those of other side.
- Types of financing
o Insurance
Pay for lawyer and damages up to policy limits
Other policyholders share costs with you
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Contingent fee
Parties share costs with other similarly situated persons.
Most tort litigation
Campbell v. State Farm
o Alternative litigation finance
Consumer lending
Lawyer lending
Direct investment in commercial claims
Making money by investing in large commercial disputes, not injured parties/individuals
Example: Burford
Third party assesse case, invests, takes part of recovery
Is it legal? Champerty (dividing proceedings of lawsuit) a crime at common law; maybe
violates attorney-client privilege.
o Public subsidies and professional charity
Legal Aid
Criminal system:
Plaintiffs: prosecutors mostly self-financed
Defendants: 80% public defenders since Gideon v. Wainwright
Private defense bar is exception
Civil system:
Plaintiffs: Contingent fees for personal injury cases, the restprivate funds: hourly, feeshifting, affinity groups, pro bono (institutionalized, often thru brokersPublic Counsel
in LA)
Defendants: insurance
Public subsidy is exception
o Fee shifting
The common fund
Affinity groups
o Members contribute dues
o Groups finance litigation to further their goals; organized around a cause
o NAACP Legal Defense Fund, Natural Resources Defense Council
By contract: provision will assert English ruleloser in dispute pays other sides attorney fees.
By common law
By statute
Civil rights laws: 42 USC 1988 says courts may at their discretion shift attorney fees of
prevailing party.
Prevailing party interpreted as only plaintiff; at their discretion interpreted as always.
Parties paying their own lawyer?
o Auto accident litigation: No.
o Contract dispute between two small businesses: Yes.
o Discrimination suit under civil rights statute: No.
o Class action lawsuit: No.

Injunctive Relief
- Ex Parte Temporary Restraining Order (TRO)
o No notice/hearing, short duration; ex: domestic violence; parent may flee (custody); money may transfer.
- TRO: Notice, brief hearing, short duration (10 days with possible extension)
- Preliminary injunction: Notice, hearing, duration until trial on final injunctive relief, a form of interlocutory review
under USC 1291.
- Final injunction: Full trial, indefinite duration, review under 1291/1292 if final judgment/if other matters TBD
Chapter 6: Pleading
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FR 7
FR 8, 8(b), 8(c)
FR 9
FR 13
FR 11
FR 55
FR 12(e), 12(f)
FR 15
Haddle v. Garrison S.D. Ga. 1996.
At-will employee Haddle was fired allegedly to deter his participation as witness in federal criminal trial on
fraud charges pending against supervisor Garrison.
Sued for discrim. under 1871 Civ. Rights stat. USC 1985(2) even though K allowed termination for any reason
D made 12(b)(6) motion for failure to state claim; granted bc statute doesnt apply to at-will employees.
th
Haddle v. Garrison 11 Cir. 1997.
Haddle appealed District Cts dismissal; his arguments foreclosed by Morast v. Lance; judgment affirmed.
Fed. Ct disposes of 250K civil cases/year; Fed. Ct of App. disposes of 55K.
Haddle v. Garrison US 1998.
th
Haddle appealed again; Supreme Ct reversed judgment11 Cir. wrong was to conclude petitioner must
suffer injury to constitutionally protected property interest to state claim for damages under USC 1985(2).
No such requirement; loss of at-will employment is injury; USC 1985(2) gives at-will E right to claim damages.
Takeaway: 12(b)(6) motion can define boundaries of substantive law.
Why does Court cite to very old legal authorities? Bc the statute is from 1871 and they are using kinds of
authorities Congress would have in mind when passing the legislation.
Haddles lawyer knew relevant Cir. Ct. had ruled against position he was taking, but not worried about Rule
11(b)(2) sanctions because other Circuits had contrary rulings: non-frivolous suit when good faith argument
for reversing existing law.
Aftermath: 12(b)(6) motion would have stopped the lawsuiteven if you can prove everything youve said, the
law wont give you remedy (what Garrison learned).
Haddle has only won right to continue trialwill go to expensive discovery stagea qualified victory.
How will he pay for it? Probably not Legal Aidnot indigent; maybe has to take out loan to pay Ct Reporter.
Haddle is an unusual case: dispute about what the law is, not what happened. Blackstones aphorism:
Experience will abundantly show, that above a hundred of our lawsuits arise from disputed facts, for one
where the law is doubted of.
Ashcroft v. Iqbal US 2009.
Iqbal was citizen of Pakistanarrested Nov. 2001 on charges of fraud, conspiracy; moved from detention
center to Admin. Max. Spec. Housing as person of high interest post-9/11; kept on lockdown 23 hr/day.
Pleaded guilty to crim. charges, deportedlater filed Bivens action in US Dist. Ct. against 34 federal officials.
th th
Complaint alleged violation of 4 /5 amendments because subject to harsh conditions of confinement on
account of race, religion, and national origin.
D motioned to dismiss on affirmative defense of qualified immunity; denied by Dist. Ct. & Ct. of App. affirmed.
Rule 8(a) short & plain statement of facts is all required, but need more than naked/unadorned assertions.
Bell Atlantic Corp. v. Twombly: precedent of flexible plausibility standard for complaintobliges pleader to
amplify with factual allegations when needed to render the claim plausible.
Need facts to nudge complaint from conceivable to plausiblemore than just mere possibility of misconduct.
o Legal conclusions supported by factual allegations
o Factual allegations plausibly give rise to entitlement to relief
Holding: allegation that Ashcroft, Mueller instrumental to harsh confinement = too conclusory; formulaic
recitation of elements of constitutional discrimination claim.
Holding: other explanations besides discrimination for detaining thousands of Arab Muslim men in 9/11
investigation: comes as no surprise that legitimate policy produced disparate impact on Arab Muslims.
Respondents arguments not persuasive:
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o
o

Twombly limited to antitrust disputes Twombly applies to all civil actions.

Discovery improperly cabined to preserve defense of qualified immunity Legitimate action; litigation
is substantial diversion for public officials.
o General discriminatory intent F Rules dont require Courts to credit conclusory statements w/o facts
Dissent (Souter, Stevens, Ginsburg): Complaint satisfies Rule 8(a)(2). Ashcroft and Mueller knew
of/condoned/affirmatively acted to create discriminatory detention policy. Twombly says Court must take
allegations as true no matter how skeptical they may be.
Dissent (Breyer): Important to prevent unwarranted litigation from interfering in govt, but not sufficient
justification here. Courts have ways to structure discovery to diminish unwarranted burden on public officials.
Aftermath: Appendix of Forms use conclusory language; they are rendered invalid by ruling.
Double gauntlet of non-conclusory and plausible: cases will die at pleading if only 1 side has info that creates
or avoids liability.
Stradford v. Zurich Insurance Co. S.D.N.Y. 2002.
Stradford stopped paying insurance premiums on his office and Ins. Co. cancelled policy 10 Oct-18 Dec 1999.
6 Dec 1999: Stradford submitted letter that he had no losses and started paying premiums again.
14 Dec 1999: Ins. Co. reinstated policy.
9 Jan 2000: Stradford notified of reinstated policy; 10 days later filed claim for property damage of $151,000+
Ins. Co. paid out; Stradford submitted revised claim for $1 mil+ and Ins. Co.s investigation determined
damage occurred in lapsed insurance periodStradford sued to collect and Ins. counterclaimed: alleged Ps
schemeto defraud defendants and obtain money by false pretenses and representations. (Fraud)
Stradford filed Rule 9(b) motion to dismiss counterclaim for failure to state claims with sufficient particularity.
Holding: Ins. Co. said Stradford lied, but failed to identify the lie and allow fair notice to one accused of fraud.
Ps motion correct but Ct. granted D leave to amend pleading to conform to Rule 9(b)then granted Motion
for summary judgment under Rule 56(b): P breached contractual obligation by failing to cooperate in
investigation of claim; breach precludes P from recovery.
Specifically whats missing from original counterclaim: Were Stradfords losses improperly inflated? Did
Stradfords office actually flood? If it did flood, was it covered by a term in the policy?
Jones v. Bock US 2007.
Inmate Jones alleged MI prison refused to reassign him work he could do after an injury, exacerbating injury.
Basis of claim was USC 1983 civil rights statute that does not require exhausting administrative remedies.
Holding: Most prison lawsuits frivolous but this one can proceed to trialno way for Jones to document his
injury, so no way to exhaust remedies before filing suit.
Does it matter whether administrative exhaustion comes up in complaint or answer? Burden of proof falls on
one alleging it. If you fail to prove, other side wins on 12(b)(6) motion.
Who has burden of pleading some element? Thousand years of common law tells us how to sort it out.
Statutes also set requirements:
o Implicitly Liable for breach of contract unless s/he is a minor at time of entering agreement.
o Explicitly It shall be a defense to claim for breach of contract that defendant was a minor.
o If silent puzzling out legislative intent from language, background, etc.
Bock (Warden) should have pleaded failure to exhaust administrative remedies as affirmative defense.
What should his lawyer do when case is remanded? Motion to amend answer to include it.
th
Walker v. Norwest Corp. 8 Cir. 1996.
Massey alleged breach of fiduciary duty in case of a minors trust fund.
Complaint unclear on basis for diversity jurisdictiononly some Ds were citizens of different states.
D informed Massey he lacked complete diversity jurisdiction but Massey did not amend complaint.
D filed 12(b)(1) motion to dismiss for lack of jurisdiction and moved for sanctionsDist. Ct. granted motions.
Ct rejects appellants argument that Ct. should have inquired into Masseys financial circumstances/hardship.
Could judge have awarded sanctions without monetary penalty? YesCLE and heartfelt apology in one case.
th
Christian v. Mattell, Inc. 9 Circ. 2003.
Christian alleged Mattel copied her Claudene doll bc it was similar to cheerleader Barbie dolls.
Mattel informed lawyer Hicks that suit was frivolous (copyright on Barbie head predated Christians doll)
10

 Hicks declined to inspect dolls; served with motion for Rule 11 sanctions but did not withdraw complaint.
th
Dist. Ct. granted motion (based on Ds list of Hicks objectionable behavior) and 9 Cir. overturned
Issue: can a laundry list of misconduct be used for Rule 11 sanctions?
No. Sanctions must be based on specific pre-discovery written, signed, and filed documents.
Reversed bc Circuit Ct. couldnt be sure what basis Dist. Ct. to award sanctions.
Zielinski v. Philadelphia Piers, Inc. E.D. Pa. 1956.
Zielinski sued Philadelphia Piers after companys employee collided with him in forklift crash.
They denied any negligence but admitted ownership and operations.
One year later D realized that Carload Contractors was actual employer/owner but stat. of limitations had run.
On this basis judge made original D stay as defendant in the lawsuit, even though they did not own forklift.
Holding: D should have filed more specific answer than their general denial under Rule 8(b).
Plausible argument: it was bad pleading in complaint as much as in answereach allegation should have
gone into a separate paragraph.
Affecting judges decision? Insurance Co. providing counsel for case is the same for Philadelphia and
Carloadso in this way, they are the same D.
th
Beeck v. Aquaslide N Dive Corp. 8 Cir. 1977.
Beeck was injured on water slide thought to have been manufactured by Aquaslide; sued in diversity personal
injury action for negligence.
Three investigators (for Beeck, accident site Kimberly Village, and Aquaslide insurance companies) found it
was manufactured by Aquaslideso Aquaslide admitted to manufacturing in their answer to Ps complaint.
President of Aquaslide inspected slide on-site and realized not Aquaslide product; moved for leave to amend.
Holding: sloppy pleading by D (admitting to untrue allegation) meant tough luckwould have to stay in lawsuit
P argues that stat. of limitations will have run on claim so they cant sue the right D.
Not all is lost for P: the new claim can relate back to original complaint if D knew or should have known it
was liable Rule 15(c)(1)(C).
Court held separate trial on issue of slides manufacture; Aquaslide found not liable.
Distinguish from Zielinski: the two Ds are not the same (like same insurance co. for Philadelphia & Carload)
th
Moore v. Baker 11 Cir. 1993.
Moore consulted Dr. Baker about blocked artery; he recommended surgery and warned of its risks.
She signed consent form and underwent surgery; bad result left her disabled.
She sued under GAs informed consent law that he failed to advise of alternative therapies.
Later moved to amend complaint to include allegations of negligence.
Holding: Cannot amend bc original complaint would not put Dr. Baker on notice that new claims of negligence
might be later assertedorig. complaint very specific to informed consent issue.
New claim does not relate back bc no same conduct, transaction, or occurrence.
After discovery, parties locked into the story theyre going to tell/the theory of the case.
Bonerb v. Richard J. Caron Foundation W.D.N.Y. 1994.
Bonerb slipped and fell playing basketball at rehab facility; sued for negligent maintenance of basketball court.
He moved for new counsel (granted), then moved to amend complaint for counseling malpractice.
Holding: amendment changing legal theory of the case appropriate if 1) same factual situation, and 2) claim
was brought to Ds attention in the original complaint. Test for relating back: same nucleus of operative facts
In this case: no undue delay or bad faithDistinguish from Moore: here, discovery period has not yet expired.
Pleading reform
- Three Overlapping Eras of Common Law
o The Writs 1200-1850
o Code pleading 1850-1938
o Modern process 1938- David Dudley Field wrote procedural reforms: pleading went from legal formulas to facts starting cause of action.
- Charles E. Clark dreamed up Federal Rules.
11

th

th

All procedure was pleading at one time/no discovery or laws of evidence until 19 /20 centuries
th
19 Cen: Pleaders have to state facts and use short and plain statements (FR 8)very brief Forms 10 and 11.
Theme: Conflict between stringent pleading requirements to screen out cases weak on law or facts vs. eliminating
technical barriers to cases that will be meritorious if they can get to discovery.
th
14 Amendment Due Process underlies:
o Forbidding excessive punitive damage awards.
Always subject to review; occur in less than 10% of cases.
Cannot be awarded for Ds behavior toward persons not yet parties. Campbell, Williams.
Although these can factor into reprehensibility of conduct consideration.
o Allowing car towing/repossession without hearing.
o Allowing court to refuse preliminary injunction on public interest grounds (Winters v. NRDC).

Timeline of Pleading
- First: Bell v. Novick Transfer
o Short, plain, conclusory statement.
o Good for P: Either we know D did something bad and we can prove it, or we are pretty sure D did
something bad and well be able to prove it after discovery.
o Bad for D: Any factual basis to the complaint? If not I have to endure 8 months of expensive discovery
before I can convince court of that on a motion for summary judgment.
- Next: Bell Atlantic Corp. v. Twombly
o Rule 8 no longer a loose screenmore stringent requirements for facts in the complaint.
o Extraordinary 20,000+ citations in first 23 months.
o Narrow reading of result: standards for pleading antitrust conspiracy thru allegations of parallel conduct
only would affect cases where massive discovery was likely.
o Broad reading of result: Changes meaning of Rule 8 for all cases.
- Then: Ashcroft v. Iqbal
o Still massive discovery, but no antitrust: takes away narrow reading of Twombly; definitive ruling on FR 8.
o What it means
For judge: disregard conclusory allegations; assess plausibility of remaining allegations in light
of judicial experience and common sense.
For legal system: system premised on low pleading barrierseasy access to discovery now
destabilized.
Common Law vs. Chancery
Triers of fact
Pleadings
Witnesses
Party structure
Appeal
How we combine systems:
Triers of fact
Pleadings
Witnesses
Party structure
Appeal

Common Law Process

Juries and judges
Formulaic (language of writs)
Live testimony but no
subpoena/discovery
Narrow
Only after final judgment

Chancery Process
Only judges
Detailed recitations of fact
Subpoena and some discovery but no
testimony
Open
Free interlocutory appeals

Modern US Legal System

Sometimes judge, sometimes judge & jury
No formulas but few facts
Extensive pretrial discovery, subpoena, and live testimony
Broad
Only after final judgment with a few exceptions
(interlocutory appeal from injunctive relief)

Approach to evaluating statutes

o 1. Purpose, 2. Scope, 3. Addressee, 4. Command, 5. Exception, 6. Consequences, 7. Precision.
12

Rule 11 is intricately worked-out set of interrelated provisions.

- Someone/lawyer calls another to threaten groundless or frivolous lawsuitnot violation. Why? No signature.
- Joe falsely tells lawyer about auto accident injury; lawyer files suit based on account. Violation? Yes, for both
lawyer certified reasonable factual investigation; 11(c)(1) allows sanction on any attorney, law firm, or party.
- Safe harborif opposing party makes Rule 11 motion, other side has 21 days to amend/withdraw complaint.
- Pure heart and empty head defense: Rule 11(a) quashes this with reasonable inquiry requirement.
- Same scenario but now Joes lawyer hands off post-interview notes to junior associate to draft the complaint.
- Who can be sanctioned by Rule 11? Both Joes lawyer and the firm, plus junior associate if he signed.
- Policy reason: create a culture of ethics/accountability from inside firmfirm doesnt want to be held responsible.
- Judge has discretion not to impose sanctioncan be held by higher Ct as abusing discretion: Christian v. Mattel
- Wrong: Client didnt have $ to pay sanctions so it wouldnt matter. Only lawyers sanctioned for unfounded legal
conclusions, so Haddles lawyer, not Haddle, on the hook. Sanctions for misrepresentations of law as well as fact.
- Wrong: Courts would be unwilling to impose sanctions in case claiming violation of civil rights. Some studies
have found high incidence of Rule 11 sanctions against such claims.
- Joe falsely tells lawyer about auto accident injurystatute of limitations for claim runs a few days later, so lawyer
quickly drafts, signs, and files complaint. Best arguments for lawyer to avoid Rule 11 sanctions?
- Failure to investigate reasonable under circumstances and complaint withdrawn w/i 21 days of adversary motion
Rule 9
-

Suppose Haddle told his lawyer that boss Garrison lied to him when hiring himassured him no fraud in company
Does that change theory of the case? Becomes fraud casemore onerous pleading rules under Rule 9.
What remedy? Outright lie gets punitive damages; automatic trigger of Courts Due Process review of damages.
Complaint must be specific (exact circumstances showing fraud or mistake): screen of Rule 9(b). What was lie?
Whats policy for making it harder to bring claims for fraud?
o Discovery required to investigate them is very expensive
o Dont want to make it easy to bring claims that undermine contractsprotect regime of contract as way
of ordering economic life.
What other claims have higher pleading requirements?
o Securities fraud (Private Securities Litigation Reform Act of 1995)
o Punitive damages in CA medical malpractice cases

The Law Governing Lawyers

- First, general laws governing everyoneno theft, no fraud, etc.
- Rules for lawyers as professionals: malpractice
- Rules for lawyers as lawyers:
o Loyalty, diligenceloyalty enforced by elaborate regulations surrounding conflict of interest.
Public mechanisms: State bar investigates complaints, prosecutes, and administers sanctions up
to disbarment.
Private mechanisms: Some breaches of professional obligations are grounds for malpractice.
- Rules for lawyers in particular fields:
o Prosecutors: duty to deliver exculpatory evidence to defense.
o Representing publicly traded co.: duty to blow whistle on certain violations of law to officials, regulators.
o Civil litigators: Rule 11 requirements for signed/certified pleading and non-frivolous suits.
Most common violation: failure to conduct adequate factual investigation.
Responding to complaint
- Rule 12(a)(1): 21 days to respond to complaint; extended to 60 days if D waives service of process.
o 90 days outside US; 60 days if US official/agency.
- No response: default judgment under Rule 55.
o Many civil claims are debt collectionif not paid, judge can enter default judgment against D.
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o In common law tradition, default judgment only on cases related to land; now, applies to all cases.
Pre-Answer Motion
o Do NOT have to admit or deny substantive allegations of complaint or any counterclaims.
o They delay time before answer has to be submitted and save time/money!
o Rule 12(b) motions = affirmative defenses/reasons to dismiss Ps casecan all be combined in 1 motion
o Rule 12(e) Motion for a More Definite Statementrarely and almost never successfully invoked.
o Rule 12(f) Motion to Strikedirected to individual allegations, not whole complaint; used to remove
irrelevant prejudicial allegations in pleadingno relation to case, confusing, overly long, derogatory, etc.
o Trap: if you file pre-answer motion and do not include all motions/defenses, they are waived.
o Three un-waivable super defenses:
Lack of subject matter jurisdiction
Failure to state a claim upon which relief can be granted (12(b)(6))
Failure to join a party as required by Rule 19(b)
Answer
o Chance for D to tell their own side of the story
If worried about public opinion, maybe you want to show case won on merits instead of on a
technicality (pre-answer motion).
o Denial
Rule 8(b) requires D deny only allegations s/he actually disputes.
Rule 8(b)(6): anything not denied is admitted.
General denial denies every allegation.
o Affirmative Defense
Rule 8(c)(1) lists common affirmative defenses.
o Counterclaim
Requires reply from P; lawyers usually reply to all new matters raised in answer to avoid possible
inadvertent admission.
Motion for Judgment on the Pleadings
o Court can match up allegations of the complaint and allegations of the answer and decide whether
judgment should be entered on basis of pleadingsex: statute of limitations has run; similar to early
motion for summary judgment.

Rule 15
- Allows amendments/revisions, but limits extent/timing of such changes.
- Interpreted by Courts to mean they should freely give leave to amend if 1) good reason and 2) prejudice if not.
- Fights happen over amendments when a) time has passed, b) something has changed.
- Why have Statute of Limitations? Pragmaticstale evidence issue (unfair when all witnesses are dead/senile).
- The relate-back problem
o Occurs when party wants to amend complaint to add/change your claimand statute of limitations has
run on that claim
o If the new claim arises from same transaction or occurrence, it is fair to amend claim as if it were there
from the beginning (hence statute of limitations has not run).
o Theme: Respect values behind statute of limitations vs. allow leeway when those values would be
threatened by amendment.
Pre-answer Exercises
- As complaint fails to allege Bs negligence caused injuries. What motion by B? 12(b)(6) failure to state a claim
- A brings suit in IL but B is citizen in another state. What motion by B? 12(b)(2) lack of personal jurisdiction
- Can B combine both motions? Yes 12(g)(1)
- If B makes 12(b)(6) motion and it is denied, can she raise 12(b)(2) subsequently? Yes B cannot raise it in a
second pre-answer motion, but s/he can raise it in answer, in motion for judgment, or at trial super
defenses under 12(h)(2)
- What if no motion, but Court realizes it lacks jurisdiction? Court must dismiss the case 12(h)(3)
14

Chapter 7: Discovery
FR 16(e) Final pretrial disclosures happen at judges final pretrial conference, which sets ensuing order.
FR 26(a)(1)(A) A party must, without awaiting discovery request, provide information to adversary.
15

FR 26(a)(2) Experts specially hired for litigation require a written report and a list of information about the expert.
FR 26(a)(3) List of witnesses and other evidence each side proposes to introduce at trial must be disclosed.
FR 26(b)(1) Permits discovery into any nonprivileged matter that is relevant to any partys claim or defense.
FR 26(b)(2) Court can limit discovery if discovery is unreasonably cumulative or duplicative, obtainable from another
source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery
outweighs its likely benefit.
FR 26(b)(2)(c) Brief summary of conclusions needs to be written for experts, but its not clear who has to write those
summaries.
FR 26(b)(3)
FR 26(b)(4)(k)
FR 26(c)
FR 26(f)(1), (2) Parties must confer and develop a proposed discovery plan, then submit a written report to the court
within 14 days of the scheduling conference.
FR 26(g) Similar to Rule 11; all disclosures must be signed, certified to the best of L knowledge after reasonable inquiry.
Important things not in Rule 11: discovery material must not be interposed for improper purpose such as harass, delay, or
increase costs.
Rule 30(a)(2)(A)(i) Deposition rules.
Rule 30(b)(6) Allows requester to just identify topic to be explored, placing the burden on the organization to produce a
knowledgeable person.
FR 33 Interrogatories
FR 34 Requests for documents and tangible items, land, electronically stored info, medical records.
FR 34(b)(2)(E)(i) Must produce documents as they are kept in the usual course of business
FR 35 Must make special application showing good cause for requesting physical and mental examinations of parties
FR 36 Request for Admissions: only against parties, in writing, cheap, and of limited usefulness. Used to eliminate
essentially undisputed issues
FR 37 Introduces sanctions for parties violating more specific obligations.
FR 37(b) Sanctions can be sought only after court has ordered a party to comply and they have refused.
FR 37(c)(2) Gives Rule 36 teeth.
FR 37(d), (f) Sanctions available for misbehavior.
FR 45(a)(1)(A)(iii) Subpoena issued to non-party to the suit specifying documents requested for discovery
Davis v. Precoat Metals N.D. Ill. 2002.
Title VII class action against employer for alleged racial/national origin discrimination
Civil Rights law = fee-shifting
Ps requested discovery docs about complaints from employees at same plant and complaints from
employees of same kind of discrimination.
Court held the request was sufficiently tailored to specific claims of the case: same plant, same discrimination.
Why was employer so reluctant? Because the other complainants could join the class action lawsuit.
Relevance is a relational concept: there is only relevance to something.
Steffan v. Cheney D.C. Cir. 1990.
P resigned from Navy after admin. board recommended he be discharged for declaring himself homosexual.
He sued to be reinstated bc dismissal was for invalid reason.
P claimed 5th amendment privilege against self-incrimination & refused to answer non-relevant depo qs
about past homo. conduct [5th amend. only available in criminal cases, which homosexuality was at the time].
District court dismissed his case as sanction for refusing to comply with discovery order.
Court ruled his conduct would be relevant if conduct were the basis for his discharge, but actually only his
statements were the basis for discharge.
Navys discovery request was too broad.
How did case go to appeal if discovery findings are non-appealable? Dismissal as a sanction is appealable.
th
Silvestri v. General Motors Corp. 4 Cir. 2001.
Silvestri crashed car; his lawyer retained two accident reconstructionists to examine vehicle and airbag was
deemed defective
16

3 years later, P sued GM in product liability action but never gave them opportunity to inspect the car.
Court dismissed Ps case as a sanction because destroying car was highly prejudicial for GM.
Could this be a malpractice case? Yes.
o Ordinarily competent lawyer would not make this mistake.
o Would have won the case were it not for lawyers incompetence.
Hickman v. Taylor US 1947.
J.M. Taylor boat sank in freak accident; tugboat owners retained counsel for potential suits from drowned
crewmembers surviving families.

Lawyer interviewed survivors and recorded his mental impressions.

Court ordered him to comply with Ps request for all statements and papers; he refused (went to jail).
Supreme Court held that work product is privileged; Ps could have obtained same information if they wanted.
No Rule 26(b)(3) at the timeappeared in 1970 as a codification of the Hickman doctrine.
Underlying historical factual material is discoverablejust his opinions that are protected.
Thompson v. The Haskell Co. M.D. Fla. 1994.
P sought a Motion for a Protective Order for her psychological evaluation post-alleged sexual harassment.
Mental examination took place 10 days after her termination from employment; court found it highly probative.
26(b)(4) can obtain testimony of expert witnesses if party cannot obtain the facts by any other means.
Probative because only her depression 10 days after firing is important, not psychological state now.
You waive doctor-patient privilege when you sue.
Chiquita International Ltd. v. M/V Bolero Reefer S.D.N.Y. 1994.
Cargo of bananas was destroyed by alleged shipping malfunction.
Chiquita retained expert to inspect boatnon-testifying expert, so opinions should not be discoverable
Court held there were no exceptional circumstances to compel Chiquita to reveal their experts opinions.
What distinguishes it from Thompson: opportunity available to Ds to get their own information/surveyor.
Stalnaker v. Kmart Corp. D. Kan. 1996.
Kmart employee Graves allegedly sexually harassed P.
D filed Motion for Protective Order to not allow discovery of voluntary romantic conduct/sexual activity of 4
non-party witnesses.
Rule 26(b): Information sought in discovery need not be admissible at trial if it appears reasonably calculated
to lead to the discovery of admissible evidence.
Court held P could not discover any voluntary romantic/sexual activities except to the limited extent of those
activities related to sexual harassment by Graves.
Witnesses did not ask to be involved in litigation.
Rule 26(c) gives judge power to weigh importance of evidence vs. embarrassment from it srelease.
Zubulake v. UBS Warburg LLP S.D.N.Y. 2003.
Zubulake sued former employer for discrimination and retaliation under federal law.
P maintained proof was in email correspondence; she sought sanctions against UBS after it was discovered
some back up tapes were missing and some emails deleted.
Rule 34(a): There is a duty to preserve documents and tangible things likely to have discoverable
information that the disclosing party may use to support its claims or defenses.
Court held that UBS did endeavor to place litigation hold on relevant documents. P failed in her burden of
proving the evidence was not just destroyed, but that it would have been favorable to her position.
No showing from the evidence produced that D did not like P because of her gender.
Lost on adverse inference instruction; won on costs for additional depositions.
Three elements of adverse inference instruction (which Zubulake does not get):
o Obligation to preserve evidence at time it was destroyed
o Records were destroyed with culpable state of mind
o Records destroyed were relevant Court says no.
Another spoliation case. Distinguish from Silvestri because there, the expert specifically told lawyer he should
tell GM about the car and he still didnt.
17

Discovery: Going past pleading stage is more expensive, time-consuming

- History: No way of compelling disclosure of evidence in early Common Law system
o Equity had discovery, but not live witnesses at trial
o Why doesnt Rule 11 cover discovery? Because Discovery Rules came later.
- 3 stages:
o Rule 26(a) Without awaiting discovery request, parties must provide:
1) Name and contact info of witnesses
2) Copy of all documents
3) Computation of damages [know what youre getting into in terms of settling, attorneys fees,
investment, strategies (more money = more time spent on that issue)]
Plus insurance information. Rule 34.
o Rule 26(b)(1) [for parties] and Rule 45 [for non-parties] Required production of nonprivileged, relevant
documents
o Rule 26(b)(1) With court approval, parties may inquire into information not relevant to claim, but relevant
to subject matter
- More narrow request, more likelihood of compelling disclosure
- Deposition rules:
o Each side gets up to 10
o 7 hours max.
o No person may be deposed more than once without permission from other side
- Interrogatories, Rule 33:
o Each side gets up to 25.
- Admission: makes something an undisputed fact.
- Disclosures required under Rule 26(a)(1): all evidence one plans to use to support claims, insurance policy, and
damages estimates.
- Rule 37(c)(1) If you fail to state a witness under Rule 26, you cannot use witness later unless it was
substantially justified or harmless. Court can in addition or instead:
o Order payment of expenses (attorney fees) caused by omission
o Inform the jury of partys failure
o Other sanctions
- Rule 26(e)(2) For an expert whose report must be disclosed under Rule 26(a)(2)(B), the partys duty to
supplement extends both to information included in the report and to information given during the experts
deposition.
- Any additions or changes to this information must be disclosed by the time the partys pretrial disclosures under
Rule 26(a)(3) are due.
- Disclosures 30 days before trial, objections filed within 14 days.
- NOT mandatory disclosures:
o Collection on loan, arbitration award enforcement, etc.
- No discovery until after Rule 26(f) meeting.
- Spoliation: destruction or material alteration of evidence, or failure to preserve evidence for anothers use in
pending or reasonably foreseeable litigation.
o But no generalized duty to preserve what may someday be evidence (diary entry, etc.).
- Hypo: must employer (UC) reveal report about why someone (Carla) was fired?
o If not work product (protected post-Hickman) + was made in anticipation of litigation (how to know?):
Is it routine? Does HR always write such report?
Did she warn the office she might sue?
Is content factual or opinion?
Did writer consult lawyer/have lawyer write it?
Who looked at it afterwards? Sent to lawyer?
o Carlas lawyer only gets the report if she can show substantial needmust first try other means (depos)
- How to get around work product privilege?
18

o If you have a cooperative witness, get HER to ask for a recording of her own statement. Rule 26(b)(3)(C).
Expert retained to testify at trial: Need Daubert hearing
o Rule 26(a)(2): identify & qualify him as an expert, turn over report to their other side, deposition by them.
o Ordinarily a party may not (either by interrogatory or depo) discover opinions of an expert specially
retained for lawsuit but who will not testify at trial.
Why are adversaries especially interested in non-testifying expert testimony?
o If they dont think s/he can go on the stand, it might be because s/he said bad things about the side s/he
was retained by. Other reasons: maybe theory of case has changed, or expert not appealing to a jury.
UC asks Carla if she has ever been discharged from other jobs; she was fired as a teen for not disclosing a nowsealed juvenile record.
o Must she reveal? It is 1) relevant 2) nonprivileged 3) not work product 4) not expert testimony.
o She can make a Motion for a Protective Order on grounds it will embarrass, annoy, oppress (Rule 26(c))
E-discovery: doesnt often come up at Rule 26(f) conference.
Steps of compliance with discovery requests:
o (1) Initial request or duty.
o (2) If they wont give document, meet and confer requirement before judicial intervention.
o (3) If still no, Rule 37 motion to compel response.
o (4) If still no compliance, motion for sanctions.
Initial disclosures: only evidence that supports claim or defense.
Dont need formal discovery device to talk to someone: interview or subpoena witness.
During depo, you must answer a question unless it is privileged. Rule 30(c)(2).
o You can object on grounds of irrelevance and recess to seek protective order. Rule 30(d)(3).
Rule 30(2)(a)(4)deposition can be used as long as someone is not dead or more than 100 miles away.
Rule 26(b)(4)requirement for witnesses not specially hired to testify at trial. No need for written report from inhouse accountant because s/he is a fact witness.
Can accountant be deposed if other party does not plan to call him/her as a witness? Yes.

Complaint &
Service :
Rule 8 : Rule
4

Parties'
Conference :
Discovery
Plan : Rule
26(f)

Initial
Disclosures :
Rule 26(a)

PartyInitiated
Discovery :
Rules 26-35

Scheduling
Order : Rule
16(b)

Chapter 8: Resolution Without Trial

FR 41 Allows one re-filing of a suit that has been voluntarily dismissed.
FR 41(b) Dismissal for failure to prosecute (plaintiff doesnt follow through)
FR 55
19

Exchange of
Expers' Reports
: Experts
Depositions :
Rule 26(a)(2) :
26(b)(4)

Pretrial
Disclosures :
Rule 26(a)(3)

Final Pretrial
Order :
Superseding
the Pleadings
: Rule 16(e)

FR 60(b)
FR 26(c)
FR 56 Summary judgment
FR 56(d) If non-movant shows that it cannot present facts to justify its argument, court can either
Defer motion or deny it
Allow time to obtain affidavits or declarations to take discovery
Issue other appropriate orders
Rule 56(e) In order to withstand a summary judgment motion, nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial.
28 USC 1738 Full Faith and Credit Act. Judicial proceedings of any state have same FFC in every other state.
FR 16(a)(5) Establishes facilitating settlement as goal of a pretrial conference
FR 16(c) management techniques ranging from establishing time limits to encouraging settlement
Federal Arbitration Act
Peralta v. Heights Medical Center US 1988.
Peralta sued by hospital to recover debt incurred by one of his employees (most likely injured on the job)
Peralta did not appear or answer, so default judgment against him, but actually he was not served w/i 90 days
Writ of attachment issued and his house was sold to satisfy judgment for less than its true value.
Even though P had no meritorious defense, he sued to set aside judgment b/c he was not properly served
Court reversed b/c Due Process not accorded to Peralta first time around: if he would have had notice, could
have a) settled, b) paid debt, c) sold house himself, d) impleaded employee whose debt he had guaranteed.
Matsushita Elec. Industrial Co. v. Epstein US 1996.
Matsushita acquired MCA; 2 class actions on behalf of MCA shareholdersone fed. securities, one state K
Fed. District Ct. granted summary judgment to Ds in fed. case; state case (DE) went to settlement.
DE Ct. approved settlement as fair [necessary b/c of class action], and part of judgment said all claims under
federal securities law also adjudicated by this state decisionwidely criticized outcome.
If Delaware law clearly stated that it would not purport to settle federal claim, would have come out other way
Kalinauskas v. Wong D. Nev. 1993.
P sued D for discrimination and sought to depose employee who settled similar suit against D previous year
D filed Motion for Protective Order barring deposition
Court held preventing the deposition would condone buying the silence of witness with settlement agreement.
Court ruled only specific settlement amount was protected; other information in deposition likely to be relevant
th
Ferguson v. Countrywide Credit Industries, Inc. 9 Cir. 2002.
P sues D for sexual harassment; D filed petition to compel arbitration for Fergusons claims.
Court held contract was unconscionable, so arbitration agreement unenforceableP to pay costs beyond
what would normally be paid by bringing action in court; only Ps claims were arbitrated, not companys.
AT&T Mobility LLC v. Concepcion US 2011.
Ps sued AT&T in class action for false adverting and fraud; D moved to compel arbitration.
Contract required individual but not class action claims be arbitrated; induced arbitration with min. recovery.
Court held that the arbitration limitations were permissible.
Lawyers inclined toward class actions if they are made easy b/c they will get higher fees.
Implication: arbitration agreements are a way around class action lawsuits.
High minimum recovery designed to show courts the arbitration was a reasonable alternative to litigation.
Ferguson v. Writers Guild of America, West Cal. App. 3d 1991.
P sued to get credit for his screenplay; Writers Guild had procedures in place for arbitration of credit disputes
Court held that they would defer to Guild arbitration.
System might be unfair to new writers, but Ferguson was well established and could not make this argument.
Celotex Corp. v. Catrett US 1986.
Adickes precedent: party who moved for summary judgment had burden of demonstrating no possible factual
dispute to any part of claim or defense. Having to prove other side cant win=almost impossible to get
summary judgment.
20

Celotex changes that by making non-moving party prove there IS an issue of factual dispute.
Catrett sued Celotex alleging husbands death from asbestos coming from Celotex products.
Celotex filed for summary judgmentunder old rule, D would have to show Catrett could NOT have been
exposed to Celotex asbestos.
Under new rule, Celotex just shows witnesses testimony raises no factual dispute; Catrett must show
evidence that he was exposed.
Celotex aligns burden of producing evidence at trial with burden of producing evidence at summary judgment.
Important implications: Must have all your admissible evidence gathered before trial, at the summary
judgment stage, to meet burden of production. Discovery may not be such an essential part of the process if
evidence needed must be gathered before trial ever comes.
Three things after Celotex:
o A party who avoids summary judgment will ordinarily avoid a directed verdict at trial, because the two
burdens are aligned (same result unless available evidence has shifted significantly).
o Parties are under pressure to use available discovery devices well before trial. They need to use the
evidence that carries the burden of production on their claim.
o There should theoretically never be a directed verdictevidence will be the same at trial, so should
have been knocked out in summary judgment.
Bias v. Advantage International, Inc. F.2d 1990.
Basketball star Bias told his agent to secure a $1 mil life insurance policy
A few days later he died from cocaine overdose and agent had never secured policy like he said
Court awarded Ds summary judgment b/c even if agent had tried to get the policy, he never would have
succeeded b/c jumbo policies not given to drug users.
Even though Bias parents disputed fact of drug use, it was undisputed/corroborated by many.
Ps lost because they couldnt point to a specific insurance policy that would have taken a drug user.
-

Alternatives to Adjudication
o Default and Default Judgments
o Involuntary Dismissal
Scheduling Orders
Failure to Prosecute
o Voluntary Dismissal
Avoiding Adjudication
o Negotiations and Settlement
Contacting to Dismiss
Third-Party Participation
Contracting for Confidentiality
Arbitration
Adjudication Without Trial
o Summary Judgment
Settlement fails because: divergent estimates of outcome, bad communication
o Most US cases settle (60-80% of all civil filings). Two characterizations:
Fairy godmotherdiscovery process used to gain fuller picture of what trial may look like, and
parties arrive at converging assessments of value of claimssettlement avoids risks of trial and
saves costs, and terms can be custom-tailored to serve parties interests.
Ogreplaintiff, ground down by party with greater resources, abandons strong claim; or
conversely, D pays to settle a meritless claim out of fear of small chance for large judgment.
Settlement is an affirmative defense to future litigation on same case.
Mediation: Assisted negotiation aimed at settlement. Alternative Dispute Resolution Act of 1998, 28 USC 651.
o Muscle mediating: threaten to tell judge party/parties are being unreasonable
o Positional mediation: start by asking parties how much they want to settle the cases.
21

o Even if no agreement on outcome, might be agreement on process.

3 main ways of non-trial resolution:
o Default judgments
o Settlement
o Involuntary dismissal
Criminal cases before 1900s more like civil system b/c private prosecutors commonparties propelled system
That system elevates justice above fairnesschanged to state-sponsored justice b/c of victims-rights movements
The difference between Common Law and Civil Law systems:
o The degree to which the judge assumes responsibility for a just outcome
o The extent to which parties are able to suggest or insist that judge pursue lines of inquiry
US system goes farthest in assigning parties responsibility for initiating/pursuing civil claims
Involuntary dismissal: Ps file suit but fail to pursue the case. Rule 41(b) dismissal for failure to prosecute.
Demography of civil litigation:
o Growth in civil filings outpaces population but lags behind GDP.
o Contracts & torts have different financing mechanisms and go to trial at different rates.
History of summary judgment
o 19th century: designed to eliminate unnecessary jury trials in a very small number of cases: Ps suits on
bills of exchange (checks). Very few defenses available if you didnt pay the amount of the check.
Admissible evidence in summary judgment: sword statement; copy of deposition transcript.

Jane Smart v. GrowCo

- Why should Jane settle?
o Potentially embarrassing employment record will not be released at trial
o Can get a good job reference as part of terms
o Avoids emotional toll of litigation
- Why not?
o Foregoing a larger jury verdict, not to mention vindication and possibility for fee shifting.
o Has to rely on company to honor their promises; they might still release information about her.
- Why should GrowCo settle?
o Protect reputation and head off other suits.
- Why not?
o Pay for nothingshe might have lost anyway.
o Payment seen as an admission of guiltreputational loss.
- If they agree to settle:
o Oral agreement would still be enforceable, but what if Jane cashes check and re-files the next day?
o D will amend answer to state accord and satisfaction as affirmative defense (this has been settled)
o A pre-filing settlement (before Jane ever files suit) with confidentiality clause is what GrowCo wants, but
its not to Janes advantage b/c if terms are later breached, she has to file new lawsuit for breach of K.
o Instead she seeks a consent decreeguarantees easy enforcement of future performance, but at the
cost of a public filing revealing existence of dispute.
o Ways of GrowCos guarantee: bond, escrow, pre-pay for health insurance
- Suppose Jane brings two suits:
o State for discrimination and breach of employment K
o Federal for patent claim
o Can she make settlement agreement for both federal and state?
One judgment can settle patent claims if state law would have understood its judgment as
including federal claimscould contemplate that outcome.
- Confidentiality agreement
o Liquidate damages clausepunishment if party breaches. Used if difficult to calculate harm.
o Jane cannot disclose outcome to other people, unless specified that only the amount is confidential
o She can decline to respond to deposition question on grounds of confidentiality
- Suppose employment contract agrees to binding arbitration of any disputes. After Jane files suit in violation:
22

o
o

GrowCo can move to compel arbitration, and court must enforce valid arbitration clause
How can it be invalid? Procedural or substantive unconscionability under state law

Source of Law
Federal Arbitration Act

State law

FAA overcoming state law

Provides
Arbitration clauses in interstate
commerce contracts MUST be
enforced unless unconscionable.
Unconscionable contracts are
unenforceable.

State law cannot go so far as to make

all small claims contracts with
arbitration agreements unenforceable

Illustration
FAA preempts state statutes that
make arbitration agreements
unenforceable.
Ferguson v. Countrywide Credit
Industries, Inc.
[Unenforceable contract b/c
unconscionable under state law.]
AT&T v. Concepcion

Arbitration
- Agreement to arbitrate put into contracts before any disputes arise: cell phones
- Differences from litigation:
o No appeal
o Not as public
o Customized procedure
o More expensive sometimes, less expensive other times
o Choice of judge (arbitrator) usually 3 (one from each side plus third chosen by first two)
o Hi-Lo: lower limits and upper limits can be defined
o Parties decide what substantive law applies
o No jury
o Limited discovery
- FAA preempts state law that bans arbitrating disputes; arbitration can only be voided on grounds that nullify the
whole contractbut state law of unconscionability will apply.
-

Celotex Hypotheticals
o If D moves for summary judgment and asserts there is no evidence of exposure to Celotex asbestos?
Responses: a deposition of supervisor stating where purchase records are kept or an affidavit
from supervisor saying Celotex was used by most people in the industry.
o If D moves for SJ on grounds that suit was filed after 10 year statute of limitations?
This shifts burden of production onto Celotex: they must show a reasonable person would have
recognized his condition more than ten years before the suit was filedif no such showing, the
motion will be denied.

Chapter 9: The Trier and the Trial

FR 16
FR 50
Amendment VII
FR 38
28 USC 1861-63
28 USC 455
Amendment XIV
23

FR 59
McKey v. Fairbairn D.C. Cir. 1965.
P sues landlord for negligence; Ct confirms w/ lawyer in pretrial conference that hell proceed w/ this theory.
Case is easy defeated; at trial lawyer tries to amend pretrial order under Rule 16 to allow theory of case to
change to Housing Regulations violation, but judge refuses to let him amend. App Ct upholds judges decision
Reid v. San Pedro, Los Angeles & Salt Lake Railroad Utah 1911.
Two equally likely ways that Ps cow died near Ds railroad tracks: went thru Ds negligent gate or other one.
P must fail when their evidence shows D could be equally liable or not liablefailure to meet burden of proof.
Thompson v. Altheimer & Gray 7th Cir. 2003.
Prospective juror implies a bias against those in Ps situation (employee with Title VII discrimination claim)
Judge should have questioned her more; Ct holds she should have been stricken, so P entitled to new trial.
Dissent implies failure to use a peremptory challenge when available is a waiver of the right.
Caperton v. A.T. Massey Coal Co. US 2009.
D was major supporter of judges political campaign, but judge did not recuse himself from hearing the case.
Court held that he should have been recused; Ds motive was knowing newly elected judge would hear case.
Dissent felt that standard for probability of bias was far too unclear.
Pennsylvania Railroad v. Chamberlain US 1933.
Conflicting testimony as to death of RRs brakeman, but Ps only witness did not actually see what happened.
Court held that evidence was faulty and P failed to meet burden of production.
Lind v. Schenley Industries 3d Cir. 1960
Trial judge granted JNOV to P in breach of K case b/c he felt jurys verdict went against weight of evidence.
App Court held judge abused discretionhe cant substitute his own opinion for jury as to veracity of witness.
Peterson v. Wilson 5th Cir. 1998.
Jurors made comments to trial judge at ex parte meeting indicating they had ignored his instruction.
Judge ordered new trial and jury found for D instead of P the second time around.
Court held that first verdict should stand b/c jury is a black box whose reasoning cannot be later questioned.
-

What will the trial be about?

Divided authority in civil litigation
Judge alone, or judge and jury?
o Historical Reconstruction and the Seventh Amendment
o Applying the Historical Test to New Claims and New Procedures
Choosing and challenging judges and jurors
o Assembling a jury pool
o Challenging individual jurors
Challenge for Cause
Peremptory Challenges
o Challenging Judges
Judges controlling juries, juries trumping judges
o Instruction and comment
o Excluding improper influences
o Size and decision rules
o Judgment as a matter of law
o New trial
The justifications for new trials
Flawed procedures
Flawed verdicts
Conditional new trials
New trial limited to damages
Remittitur and Additur
24

The Reexamination clause and the jury as a black box

Juries
During drafting of constitution, proponents believed juries would be sympathetic to the claims of rural debtors
when sued by big-city or foreign creditors.
Rule 48: unanimous verdicts still required in federal system unless parties agree to non-unanimous verdict
Judges
28 USC 351: Persons can file complaints against judges
o 1/3 of states allow peremptory challenge of judges by timely filling of affidavit that judge is prejudiced
One challenge for each side
o 28 USC 144: Requires cause for peremptory recusal in fed. Ct; 455 defines causes
Judgment as a Matter of Law [Directed Verdict]
Rule 50
Granted when party w/ burden of production fails to carry that burden.
Motion for JML must be pre-verdict because:
o Preserves sufficiency of evidence as a matter of law.
o Calls to courts and parties attention any alleged deficiencies in the evidence at a time when opposing
party still has an opportunity to correct them.
Cannot make judgments about credibility of witnesses
Basic test for taking away from jury is whether reasonable persons could differif yes, goes to jury.
Celotex legacy: Same burden of production at summary judgment stage as trialso there should never be JML.
New Trial
Rule 59
Sounds like 7th Amendment Reexamination clause because it does not specify reasons: any reason for which a
new trial has heretofore been granted
o Example: flawed procedure [Mainly: flawed verdict went against the great weight of the evidence]
Impermissible argument allowed
Improperly admitted evidence
Erroneous jury instructions
Juror misbehaved
59(d) allows judge to order a new trial even if no parties asks for one
Conditional new trials: limited to damages
Remittitur judge orders new trial unless P agrees to accept reduced compensatory damages
Additur judge orders new trial unless D agrees to higher damages

Chapter 11: Respect for Judgments

FR13
FR 20
FR 42
FR 60(b), (c)
Article IV States must give each other FF&C
28 USC 1738 Federal courts must give FF&C to state court judgments
Rule 8, Rule 18 Pleader can state as many claims as they have against a party
25

Frier v. City of Vandalia 7th Cir. 1985.

A series of suits: first was Frier v. Citystate court. Court declined to issue writ of replevin.
Second suit: Frier v. Cityfederal court. Substantive claim? Due Process violation. Similar: Fuentes v. Shevin.
Outcome of 2nd suit? Dismissal for failure to state a claim. Hearing 1 month after tow was too long.
Towing without hearing first is fine because there is no state actor involved.
Appeals court affirms Frier had full and fair opportunity to litigate by joining constitutional claim seeking
punitive damages and declaratory relief to his demand for replevin.
Searle Brothers v. Searle Utah 1978.
Woodey Searle had 50% stake in Slaugh House property; his sons had other 50%.
Divorce b/w Woodey and sons mother Edlean awarded her entire property; sons sued to reclaim 50% stake.
They were not barred by preclusion: 4 part test for claim preclusion/res judicata
o (1) Identical issues? No issue of sons ownership.
o (2) Final judgment on the merits? Divorce decree was final.
o (3) Second suit party in privity in first suit? Sons were not parties to divorce action.
o (4) Fully litigated in first suit? No, partnership interest was not litigated.
Note that Woodey was not party to second suitso Edlean cant make him turn over assets equal to Slaugh
House 50% stake, of which she has now been deprived.
Taylor v. Sturgell US 2008.
Herrick requested documents from FAA under Freedom of Information Act; denied b/c documents exempted.
Taylor makes same request; court held he was not bound by virtual representation b/c not party to 1st suit.
Case distinguishes stare decisis from other kinds of preclusion.
Gargallo v. Merrill Lynch, Pierce, Fenner & Smith 6th Cir. 1990.
Gargallo owed money on investments; sued in state court by Merrill Lynch.
Counterclaim on Fed. securities claim; trial ct. dismissed suit as sanction for not complying w/ discovery req.
Re-filed in District Court & dismissed for preclusion; App. Ct held there was no claim preclusion on first suit
b/c state court lacked federal SMJ on the Fed. Question claim (securities law).
If it could have been litigated before, it had to have beenotherwise waived.
Illinois Central Gulf Railroad v. Parks Ind. App., N.E.2d 1979.
Jessie and Bertha injured in train wreck; Bertha sought comp. for injuries and Jessie for loss of consortium.
Jessie did not recoverlater he brought negligence suit for his own injuries; RR argued for issue preclusion.
Court held RR did not meet burden of proving Jessie did not recover b/c of contributory negligence.
Parklane Hosiery Co. v. Shore US 1979.
First suit: SEC v. Parklane for securities fraud; SEC wins.
Second suit: Class action of shareholders alleging same facts.
Mutuality: only parties to a suit can be estopped by preclusion.
Defensive collateral estoppel: P cant re-litigate issues just by switching parties judicial economy incentive.
Offensive collateral estoppel: P wants to re-litigate what D lost against a different party.
Court held Shore could use offensive collateral estoppel: could not have joined 1st suit; Parklane had full &
fair opportunity to litigate first time around.
State Farm Fire & Casualty Co. v. Century Home Components Or., P.2d 1976.
Fire sparked 50 resulting claims; 3 went to trial and final judgment: two for P, one for D.
Court held where prior judgments are inconsistent, it is unfair to prevent litigants re-litigating the issue.
In case with 25 cases for P following the train wreck, absurd if 26 has preclusive effect after finding for D.
Kovach v. District of Columbia D.C. Ct. App. 2002.
P paid ticket from speed camera; later City said it would not enforce those tickets; P sued for discrimination.
Court agreed no preclusion of claim b/c constitutional challenges distinct from traffic adjudication.
P could not recover though b/c he admitted liability by failing to challenge ticket originallycant then say he
was confused by the traffic light.
Durfee v. Duke US 1963.
Land dispute: Durfee said in NB; Duke said in MO. Nebraska trial court found for Durfee and SC affirmed.
Duke then filed suit in MO court alleging land was in MO; removed to district court on diversityfound for P.
26

 US SC held that question of jurisdiction was decided in first case, so could not re-litigate that issue.
A party who appears and litigates a challenge to SMJ is bound by the resulting decision.
United States v. Beggerly US 1998.
Fed. Gov. brought quiet title action for land so they wouldnt have to purchase it; they settled for modest sum
after no evidence found that ownership was legit.
Evidence of legit. ownership found later, but Ct did not reopen case b/c no grave miscarriage of justice.
Res judicata claim preclusion estoppel by judgment. [Res judicata is also collective term for issue & claim preclusion]
Forbids a party from litigating a claim that was or could have been raised in former litigation
Goals of finality, avoiding inconsistency, and efficiency:
o Common law pleader could not combine writs in a single suit
Could not bring second claim on same writ, but could bring different writ on same facts
o Field Codes (19th c) and Federal Rules (20th c) free pleaders from confines of writs
o Rule 8 designed to make pleader consolidate all claims into one suit
Rule 42(b) does not force court to try all the claims in a single suit
Doesnt apply if first court lacked jurisdiction or if its from same occurrence, but different partys claim.
Rule 60(b)(5) postpones decision on claim preclusion until after appeal is resolved.
Preclusive effect applies only to judgments on the merits. (Exception: suit dismissed as sanction is precluded.)
NO CLAIM PRECLUSION: Dismissals for lack of jurisdiction, improper venue, or failure to join party under FR 19.
Collateral estoppel issue preclusion estoppel by verdict. Deeper but narrower bite.
Claim not barred from subsequent litigation because its a different cause of action, but some issue decided in first
suit cant be brought up in second.
Prevents inconsistent findings.
R2d of Judgments 27 must be actually litigated and determined.
1st Civil (P wins), then Criminal precluded? Nodifferent burden of proof.
NO ISSUE PRECLUSION: verdict was result of jury compromise; prior determination manifestly erroneous, newly
discovered information not available to P at first trial.
R2d of Judgments 28: no issue preclusion when inconsistent judgments, new info or diff. relationships in 1st case.
R2d of Judgments 26: exceptions to splitting claims into different cases.
Claim Preclusion
o Precluding the Same Claim
Efficiency
ConsistencyThe logical implications of the former judgment
o Between the Same Parties
Binding a nonparty to the results of a lawsuit
Substantive legal relationships
Express agreement to be bound by a decision to which one is not a party
Instances of procedural representation
o After a Final Judgment
o After a Judgment on the Merits
Should the federal preclusion doctrine change after Iqbal, which increase the level of detail in
federal pleading?
- Issue Preclusion
o The Same Issue
o An Issue Actually Litigated and Determined
o An Issue Essential to the Judgment
o Between Which Parties?
The Victim of Preclusion
The Precluder
27

The Boundaries of Preclusion

o Claim Preclusion
o Issue Preclusion
o Probing the Borderlands of Preclusion
Repose: Collateral Attack and Reopened Judgments
o Full Faith and Credit as a Bar to Collateral Attack
o The Reopened Judgment as an Alternative to Collateral Attack
Auto Accident
o Sue same party a second timethey can plead affirmative defense of res judicata (claim preclusion).
o They would then move for summary judgment.
o Policy?
More efficient, unfair to keep litigating same thing.
Rush v. City of Maple Heights
o Personal injuries in second suit precluded because she only sued for property damage in first suit.
o Claim preclusion: not just claims litigated, but all claims that could have been litigated
o HYPO: What if system did not allow her to combine claims for pers. injuries & damages? NO preclusion.
CENTRAL THEME: competing goals of civil procedure
o Air disputes completely End disputes quickly
o Things that promote finality:
Statute of limitations
Precedent limits dispute about governing legal principles
Appellate courts have limited power to overturn trial court findings
Claim and issue preclusion
Counterclaim
o Must arise out of same transaction/occurrence
o Cannot add party over whom court cannot get jurisdiction
o Rule 13 has explicit command to bring related counterclaims; Rule 8 contains no explicit instructions.
In privity
o Someone not formally named as a party was so closely related to a suit, its appropriate to treat them as if
they were so namedin privity describes party bound by the first suit.
Binding a non-party
o Substantive legal relationship. Successive owner of property, beneficiary/trustee, heirs/executors.
o Express agreement to be bound by suit to which one is not a party.
o Procedural representation. Guardians for minor appointed by court, class actions, contingent beneficiary
The interests of the party were sufficiently represented in first suit.
Rule 52(a) requires bench trial judge to set forth findings of fact/conclusions of law.
Restatement 1 of Judgments: when alternative grounds for decision exist, both issues should be precluded.
Restatement 2 of Judgments: neither should be precluded.
Reopening a case: Rule 60(b) allows reopening on post-verdict motion.
o Unlawful means of victory for prevailing party: improper service of process; concealing key evidence.
o Why not appeal? B/c original court committed no procedural errors.

Chapter 2: Personal Jurisdiction

Article IV, section 1 Full Faith & Credit: comes into play when party seeks to enforce judgment they have obtained
elsewhereother party will challenge default judgment against them.
Amendment XIV Due Process clause: Comes into play when party learns they have been sued in court of doubtful
jurisdictionthey will follow up with 12(b)(2) motion to challenge personal jurisdiction.
FR 12(b), (h), (g)
FR 4(k)(1)(A) Lines up personal jurisdiction of federal court with state court.
FR 4 Jurisdiction in federal court.
28 USC 1391, 1404
28

Federal Interpleader Act gives fed. Courts power to serve process anywhere in the country..
Pennoyer v. Neff US 1877.
Mitchell sued Neff to recover unpaid attorneys fees; N. not personally served with process & did not appear.
Constructive notice of summons in newspaper; default judgment against Neff led his land to be seized, sold.
Second suit: Neff sues Pennoyer to recover the land by invalidating first judgment on lack of personal J.
Court held that first judgment was invalid b/c newspaper is insufficient constructive notice, but service of
process by seizing land is permissible.
Claim preclusion does not attach when first judgment lacked jurisdiction. (Nor does FF&C apply.)
If jurisdiction is litigated in the first forum, it cannot be raised a second time on collateral attack.
Implications:
o Giving notice within the state brings nonresident under state courts jurisdiction.
o State courts have power to take land, but only if they attach/seize land prior to adjudication (not what
happened in Neff).
International Shoe Co. v. Washington US 1945.
Washington sued to recover employer payments to state fund; Shoe responded they dont do business in WA.
Court adapted Pennoyer doctrine to a business corporationlegal fiction that certain amount of systematic
and continuous activity = presence in the state.
Pennoyer concepts of presence/consent Shoe concepts of minimum contacts/substantial justice & fair play
Sliding scale: more activities means less the claim filed needs to relate to those activities for PJ to exist.
McGee v. International Life Insurance Co. US 1957.
CA resident paid premiums on life insurance by mail to TX office; Ins. Co. refused to pay after he died.
Is 1 CA customer enough to create activity? Court held yes. Contract delivered there; insured was resident.
Hanson v. Denckla US 1958.
PA resident created trust in DE and subsequently moved to FL.
Court held not enough minimum contacts with FL b/c no office there for trust company; no availing itself of
privileges of conducting activities in forum state nor any invocation of benefits/protection of FLs laws.
Shaffer v. Heitner US 1977.
Board of Greyhound sued by shareholder on behalf or the corp. (shareholders derivative suit).
He obtained jurisdiction over Ds by sequestration of 82,000 shares of stock options belonging to Directors.
Fuentes establishes seizure without hearing ok for public interest or greater state interest.
Court held that seizing stock did not satisfy Shoe requirement: minimum contacts/traditional justice & fair play
World-Wide Volkswagen Corp. v. Woodson US 1980.
NY distributor and dealer sell car to Ds, who get in accident in Oklahoma on their way moving to Arizona.
Court held not enough minimum contacts to support products liability action in OK: autos inherently mobile.
Ds did not target OK because they bought no advertising or made any sales.
Tactical maneuvering: knocking out 2 NY Ds gets suit into federal court on diversity grounds.
Burger King Corp. v. Rudzewicz US 1985.
BK, HQd in Florida, bring suit against Michigan franchisees to recover defaulted loan payments.
Court holds Ds purposefully availed themselves of benefits of FL laws because contact with BK in FL.
May be wrongly decided: BK had much greater leverage than R.
Pavlovich v. Superior Court Cal.4th 2002.
P was sued by DVD creators for website explaining how to save encrypted DVDs to computer.
CA court held there was no evidence his site targetedPs lawyer should have tried to find evidence of
deliberate intent to target CA; that would have established PJ there.
Lawyer worked for free because hew wanted to establish himself as Internet defense lawyer whiz kid.
J. McIntyre Machinery, Ltd. v. Nicastro US 2011.
Worker injured by machine sues foreign (UK) manufacturer.
D escapes jurisdiction because did not target the NJersey market or purposefully avail themselves of NJ laws.
Suit could have been brought in Ohio, where US distributor had contacts, but distributor went out of business.
29

 Important: Split court decision. 4 plurality; 3 dissent (Ginsburg/Sotomayor/Kagan); 2 concurring (Breyer/Alito)

Goodyear Dunlop Tires Operations, S.A. v. Brown US 2011.
Goodyear subsidiaries made tire that caused bus accident in France killing American children.
Court held no jurisdiction in NC because nonresident D didnt place product into stream of commerce in that
forum; stream of commerce/systematic activity only germane to specific jurisdiction, not general.
If parent and subsidiaries treated as one corporation, the suit would have come out differently.
Burnham v. Superior Court US 1990.
Burnhams married in NJ; divorced and she moved to CAserved him w/ divorce papers on a visit to see kids.
Court held state could have jurisdiction over nonresident personally served with process while temporarily
present in the state (general jurisdiction)revival of tag jurisdiction.
Important: No majority, but unanimous result. 4 justices voted it was PJ because he was served in CA; 4
justices voted it was PJ because he availed himself of CA laws; 1 didnt say why.
Carnival Cruise Lines, Inc. v. Shute US 1991.
Ps bought ticket to cruise that had a contractual forum-selection clause clearly marked on back of ticket.
Court held it would be unreasonable for Shutes to negotiate terms; they could have chosen not to get on boat.
Reasoning behind forum clause: passengers from all over; too expensive for co. (and thus consumers) w/o it.
Mullane v. Central Hanover Bank & Trust Co. US 1950.
Accounting is letting beneficiaries know they can challenge Bankss exercise of power.
Pooled trusts managed by D; beneficiaries sued after Bank notified them of accounting only be newspaper
when it had addresses on fileCourt held that when addresses available, or when reasonable due diligence
makes them identifiable, they must be used for service of process.
Need only ask what would satisfy a prudent man of business in knowing how much effort to put in to contact.
In practice, need not worry about constitutional adequacy of notice because Rules have standard procedures.
Piper Aircraft v. Reyno US 1981.
Scottish air crash; suit against manufacturer of plane brought by estate administer in CA court.
Ds remove to federal court in PA. (Did not challenge PJ, although Goodyear suggests they would not be
subject to PJ if the suit were going on today, and could have successfully challenged it.)
Ds make motion to dismiss on grounds of forum non conveniens.
-

The origins
The modern constitutional formulation of power
o Redefining constitutional power
o Absorbing in rem jurisdiction
o Specific jurisdiction: the modern cases
o General jurisdiction
Consent as a substitute for power
The constitutional requirement of notice
Self-imposed restraints on jurisdictional power: long-arm statutes, venue, and discretionary refusal of jurisdiction
o Long-arm statutes as a restraint on jurisdiction
o Venue as a further localizing principle
o Declining jurisdiction: transfer and forum non conveniens
Forum Non Conveniens
Courts need both subject matter and personal jurisdiction.
Waiver: if you show up, litigate on merits, and fail to raise challenge to jurisdiction, you have waived PJ. FR 12(h).
o Party waives 12(b) defense by omitting it from motion or pleading.
Can obtain jurisdiction through:
o [Over property] (quasi) in rem jurisdiction: attaching land at outset of lawsuit.
True in rem: Seized property as part of case to decide who owns it (quiet title action).
Quasi in rem: Seized property just as way of obtaining jurisdiction; no connection to dispute/suit.
o [Over people] in personam jurisdiction: personally serving someone with process in the state.
30

Full Faith & Credit Piracy

o Without the exception to FF&C created by Pennoyer, people could bring suit against nonresident
defendants who would all get default judgments against them, and their land could be seized.
Always have jurisdiction:
o Individuals
Place where transaction/occurrence arose.
State of permanent domicile.
o Corporations
State of incorporation.
State of principal place of business.
HYPO: Children injured trespassing on your out-of-state property. Can you challenge jurisdiction? No: property
itself gives rise to the claim. But cases not related to the property do not provide grounds for PJ in that state.
Specific Jurisdiction: Claims arising out of activities in that state. (Burger King)
General Jurisdiction: Claims not arising out of activities in that state. Domicile/Incorporation/Principal P.o.B.
o Auto accident in place youre just passing thru: they can establish PJ there.
Spectrum of contractual clause:
o Choice of law. Particular jurisdictions law will govern disputes.
o Consent-to-jurisdiction. Consent to suit in particular place; waives PJ challenge.
Why would co. want this? Home court advantagemore familiar, cheaper.
o Forum selection. Stronger than consent to jurisdiction; limits forum to single location.
Difference from consent? Suit can be brought nowhere else; previously just agreed not to fight it.
o Arbitration. Disputes must be settled by arbitration.
What if international? USA has no treaties to enforce judgments outside US. UN Convention on
Recognition of Foreign Arbitral Awards makes arbitration enforcement by domestic courts routine.
o Confession of judgment. Waiving right to hearing/notice: only ok in cases to get extension on a loan.
Sample Exam Question: what if Carla leaves WA corp. Microsoft /sues them in CA (new home) for discrimination?
o Show what cases are relevant: Dunlop at minimum.
o Show you understand sliding scale: more business means more justification for general jurisdiction.
o Show what additional information you need: how much business Microsoft does in CA.
Dismissals for purely jurisdictional reasons do not have preclusive effect.
State courts limiting their own jurisdictional reach:
o Long Arm Statute (statutory)
California CCP 410.10 explicitly reach as far as we can to limits of due process
NY Civil Practice Law & Rules fulfill criteria before NY will exercise jurisdiction over you
o Venue (statutory)
Jurisdiction & Venue Clarification Act of 2011 28 USC 1391.
Civil action may be brought in:
o Judicial district of Ds residence.
o Where events giving rise to claim occurred.
o Any judicial district in which D is subject to personal jurisdiction.
o ANY judicial district for alien corporations.
28 USC 1404: Can transfer from one court to any other court in same district where it might
have been brought or that all parties consent to.
o Forum non conveniens (Common Law)
Declining to exercise jurisdiction even where possible because less convenient, just, or efficient.
In return, Ds agree to waive statute of limitations defense/jurisdictional or venue defense in
alternative forum. [Only 4% of cases moved overseas actually reach trial there.]

Rule 4
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Serving summons from district court establishes PJ over D who is subject to state jurisdiction where that district
court is located.
Waiver of service is alternative (time and cost = carrot and stick)
o Send first class letter with copy of complaint and Form 5
No response:
Duty to avoid unnecessary expense. Rule 4(d)(1).
Must pay cost of subsequent service. Rule 4(d)(2).
If they do respond:
They waive objection to sufficiency of summons. Rule 12(b)(4)-(5).
First, they get 30 days to respond to waiver.
o If they do, they get 60 instead of 21 days to answer the complaint (90 for foreign).
Rule 12(a)(1)(A)(ii).
o For many states, statute of limitations does not stop running until process has been served. Rule 3.
o Hague Convention on international service of process (US Dept of Justice in America).
Other forms of notice:
o Personal service of private process server
o Federal marshal as last resort
o As specified by federal statute, state statute, or international treaty
Rule 4(k)(1)(A) Federal courts have PJ over any D whom state courts would have PJ over.
Rule 4(k)(1)(B) 100 mile bulge in personal jurisdiction of fed. district court when joinder under Rules 14/19.
Rule 4(k)(2) Foreign Ds subject to PJ by tag jurisdiction.
Sewer service: intentionally fails so process server does less work for same $ and P gets easy default judgment

Power

Over Property
(in rem)

Shaffer

Over persons and

corporations
(in personam)

Consent

Notice

Carnival Cruise
Lines

Mullane

International Shoe

Burnham

Strategy: why do litigators care which state a suit is brought in?

- Tactical advantage. Forcing someone to find lawyer in a different state (plus other costs).
o Not so much today because travel & communications are easy.
- Different trier of fact. Judge versus jury: a way to get out of having an undesirable judge is challenge jurisdiction.
- Different legal cultures and different law. Court could apply a different state or countrys law, but default is its own.
Responses to suit:
- Do nothing: default judgment.
o Collateral attack: gives opportunity to contest jurisdiction of suit before writ of execution against assets.
- Special appearance: show up but challenge jurisdictionmake a 12(b)(2) motion followed by 12(b)(6) motion
(both pre-answer); if you lose, defend on meritscan raise personal jurisdiction again on appeal.
o Some states allow immediate appeal if you lose challenge on jurisdiction, others await final judgment.
- Show up but dont challenge jurisdictionthen you have waved it and cannot bring it up again.
Why choose a pre-answer motion over bundling everything into answer?
- Rules 8(b) and 11: allegations of answer have effect on professional/financial standing of lawyer
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- Rule 13: answer must contain any counterclaim, which requires research
- Rule 12(b): only 21 days to answer, which requires research (Rule 12(a)(4) gives a 10 day extension to answer)
What to do when suing D in your state and D challenges jurisdiction with 12(b)(2) motion?
- Look for contacts: public information, business registration, internet searches.
- Ask court to order limited discovery on the jurisdictional contacts (not merits).
- Burden is on P after D has challenged jurisdiction: he need only say he does not live/have residency somewhere.
Why challenge jurisdiction if suit can be brought elsewhere?
- Statute of limitations in new forum state may have run.
- Could be lower damages.
- Added expense of new forum state might make adversary drop the suit.
- Date at which damages must be paid is in any case delayed.
Federal Compromise
- Affiliated sovereigns divide power on agreed-upon lines
- Personal jurisdiction flows from Due Process clause
- Federal subject matter jurisdiction flows from Article III and/or related statutes

Chapter 3: Subject Matter Jurisdiction of the Federal Courts

28 USC 1331
28 USC 1332(a), (c), (e)
28 USC 1367
28 USC 1441-47
Article III
Louisville & Nashville Railroad v. Mottley US 1908.
Mottleys sued RR for refusing to honor lifetime pass after fed. Statute banned free passes.
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Court does not rule on merits b/c trial court lacked SMJ: no diversity & not a federal question b/c original suit
was for state law breach of K.
Grounds for federal jurisdiction must be raised in the complaint.
Redner v. Sanders S.D.N.Y. 2000.
Redner was US citizen residing in France, suing NY Ds who made 12(b)(1) motion to dismiss for lack of SMJ
Redner switched theory: contacts with CA made him resident there. Ct held not enough contacts/not domicile.
Hertz Corp. v. Friend US 2010.
Nerve center test for corporations principal place of business: where high level officers direct corp.s ops
Hertz derived more revenue from CA than any other state + plurality of business activities there.
Therefore no diversity with CA Ps and not removable to fed. Court.
In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation N.D. Ill. 2007.
P had both state and federal claims against D relating to overstated home value to qualify her for bigger loan
Court held there were common and operative facts from which both claims derived, and neither claim could
be resolved without affecting the other, so there was supplemental jurisdiction for state claims in Fed. Ct.
Szendrey-Ramos v. First Bancorp D.P.R. 2007.
Szendrey brought both federal Title VII discrimination claims and Puerto Rico law claims to Fed. Dist. Ct.
Court held that non-federal claims raised complex/novel issues and predominated over federal claims
Declined to exercise supplemental jurisdiction over Puerto Rico claims; suit went forward w/ only fed. claims
Caterpillar, Inc. v. Lewis US 1996.
P Lewis (KY) filed suit against Caterpillar (DE corp.) and Whayne (KY corp.) for job-site injury.
His insurer Liberty Mutual sued the two corps. to recover amount paid out in workers comp.
After Lewis settled with Whayne, suit was unjustly removed to fed. Court of basis of diversity.
Court holds that even though it was wrong, they will not vacate removal for reasons of efficiency, economy.
-

The idea and the structure of subject matter jurisdiction

Federal question jurisdiction
Diversity jurisdiction
Supplemental jurisdiction
Removal

Chapter 12
FR 13
FR 18
FR 20
28 USC 1367
FR 14(a), (b)
FR 13(g)
FR 19
FR 24
FR 22
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28 USC 1335
28 USC 1397
28 USC 2361
Plant v. Blazer Financial Services 5th Cir. 1979.
P borrowed money from D and defaulted; brought suit against them under Truth-in-Lending federal act.
D counterclaimed for unpaid balance.
Permissive counterclaim must have independent jurisdictional basishere neither fed. Q nor diversity.
Ct held claim as compulsory (does not need independent J. basis)4 part test; compulsory if any Yes
o (1) Same issues of law/fact?
o (2) Res judicata on claim if its not brought now?
o (3) Same evidence?
o (4) Logical relation? Same aggregate of operative facts about loan transaction.
Mosley v. General Motors Corp. 8th Cir. 1974.
Class action suit based on many different kinds of discrimination; trial court ordered severance.
App. Ct. held Dist. abused discretion by severing; Rule 20 allows all reasonably related claims tried in 1 suit.
One company-wide policy = same transaction/occurrence & same law/fact. Difference in discrim.= immaterial.
Price v. CTB, Inc. M.D. Ala. 2001.
Price sued Latco for defective chicken coop; Latco impleaded Manufacturer of nails, CTB, under Rule 14(a).
Court held proper impleader b/c they were liable; derived from original claim; state law said M indemnifies.
Kroger v. Omaha Public Power District 8th Cir. 1975.
Kroger sued husbands employer; employer was sold power lines by Omaha & leased crane from Owen.
Omaha impleaded Owen, then got summary judgment after denial.
Owen Equipment & Erection Co. v. Kroger US 1978.
Became sole D 2 years later; filed motion to dismiss based on lack of diversity but Dist. Ct. found for P.
Court held that non-diverse D could not be sued after diverse D dropped out of suit: Dist. Ct. lacked J.
Implication: claim against third-party D must have independent jurisdictional basis if no Fed. Q.
Legacy: Congress enacted 1367 to codify finding in Owen Equipment. Denies supp. J to diversity-only cases
Temple v. Synthes Corp. US 1990.
Temple sued Manufacturer for defective implant in his spine; brought suit in Fed. Ct. with diversity J.
Also filed suit against Dr. and hospital in state court; Synthes filed motion to dismiss for failure to join
necessary parties under Rule 19. Court held Rule 19 doesnt require efficiency: not necessary to join all
tortfeasorsjoint and several liability = permissive joinder.
If Synthes tried to implead Dr., would be impermissible Its him, not me.
Helzbergs Diamond Shops v. Valley West Des Moines Shopping Center 8th Cir. 1977.
Helzbergs had lease w/ mall not to have any more jewelry stores; mall broke lease by agreement w/ Lords.
Court denied Ds motion to dismiss for Ps failure to join necessary party; held that even though judgment
might be prejudicial to Lords, it was the malls fault for making conflicting lease agreementstoo bad.
Natural Resources Defense Council v. United States Nuclear Regulatory Commission 10th Cir. 1978.
NRDC wanted to prevent NRC issuing uranium mill licenses w/o making environmental impact statement.
United Nuclear already had license; American Mining Congress (trade org.) and Kerr-M sought to intervene.
Court held that AMC and KM could intervene: prop. interest at risk if NRDC prevailed.
o Even if no res judicata b/c they would not be in suit, there would still be stare decisis effect.
o United Nuclear not adequately representing interests b/c they have license; willing to compromise.
Taylor v. Sturgell = related preclusion case. Permissive intervention to challenge protective order allowed.
Interest in favorable precedent cannot alone justify intervention.
Martin v. Wilks US 1989.
Class action of black firefighters who faced discrimination in Birmingham comes to settlement.
Part of settlement is new policies in hiring/promotion.
Notice of hearing posted; white firefighters appeared and argued they should be allowed to intervene.
Denied, so white firefighters filed this suit alleging discrimination.
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 Court held the Ps were not precluded from bringing suit b/c they failed to do so when they had the chance.
Even under mandatory intervention, non-parties w/ knowledge of the suit would re-litigate.
Legacy: those in suit have burden of joining absentees!
Paragon Molding, Ltd. v. Safeco Insurance Company S.D. Ohio 2010.
Paragon to collect insurance money after major fire & many others seek to get into suit:
o Owner of real estate, loss consultant/appraiser company, subsidiary co., bank lender
Aftter dismissing Safeco, Paragon is only P and Court requires memoranda from all Ds on their interest, etc.
Safeco would have remained in suit if it contended it owed Paragon nothing.
-

Joinder of claims
o Joinder of claims by plaintiff
Historical background
The Federal Rules
Joinder and jurisdiction
Joinder of parties
o By plaintiffs
o By defendants: third-party claims
o More complex litigation
Intervention
Interpleader

Three distinguishing features of modern civil procedure

o (1) Notice pleading allows Ps to start lawsuit w/ less than complete info.
o (2) Discovery increases factual depth.
o (3) Broad joinder of claims increase breadth of suit.
Court in single suit can adjudicate multiple claims against multiple parties.
Procedural skirmishing can occur long before merits come into view.
- Interlocutory appeal (Mosley): only 100 x/year out of 250K civil suits in federal courts.
- Game of joinder
o First Move: Defendant
Chooses to join parties, subject to Rule of 20(a).
o Second Move: Plaintiff
D challenges under Rule 21; parties found improperly joined will have claims severed.
o Third Move: Judge
Judge can join and sever claims even if parties dont want toRule 42.
o Fourth Move: Non-parties
Local rules often require parties to identify any factually similar cases pending in district.
- One Rule Affects Others: Consolidation of separate actions under Rule 42(a)
o Requirements for serving papers: Rule 5(a) Rule 30(b)(1)
o Right to cross-examine at deposition: Rule 30(c)
o Right of discovery: Rule 33 Rule 34 Rule 35
- Rule 14: requires derivative liability
o Avoids inconsistent judgments: liable in first case but not second/big vs. small damages in 2 suits
o Two foundations:
Torts Contribution
Contracts Indemnity
o Two attractions:
Brings others into the suit who may foot damages bill
Delays case & makes it more expensive for P.
o Personal jurisdiction usually not a problem: 3rd party D will have been involved in occurrence that led to
the original claim
Rule 4(k)(1)(B): 100-mile boost to courts jurisdiction. 1367 gives boost to P. Rico, Guam, DC
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How reconcile Rule 18 (as many claims as party has) with Rule 13/14 (transactionally related)?
o One transactional cross-claim can be joined with another that lacks transactional connection.
Compulsory joinder has roots in 18th Court of Chancery
o Litigation affects people who are not parties Embodied by Rule 19.
o Ps benefit from Ds pointing fingers at each other.
o Courts rely on Ds to bring in other parties.
o Necessary parties:
Obligation cases: more than 1 person burdened or benefitted.
Property cases: someone outside suit has interest (joint owner, lessee, mortgagee)
Representative parties
Limited fund for pool of assetswill be drained by time other claimant brings suit.
1367 explicitly excludes parties brought under Rules 14, 19, 20, or 24 from getting supplementary J w/o Fed. Q.
Intervention: one party gets into the suit when no one else wants them there.
o Existing parties dont like b/c:
Complicates/weakens litigation strategy
Lawsuit more expensive
Settlement more difficult
Rule 24(a): Intervention of right (like 19(a))has 4 requirements
o Timely intervention
o Interest in property or transaction
o Interest at risk
o Not already adequately represented
Rule 24(b): permissive interventionneeds judges approval
Rule 19 is from perspective of those in lawsuitRule 24 is from perspective of those outside.
Interpleader. Procedure by which stakeholder requires competing claimants to resolve dispute in lawsuit.
o Rule 22 allows interpleader even if stakeholder also makes a claim to the assets.
o Still normal rules for:
SMJ (diversity/Fed. Q.)
Personal jurisdiction (J within state)
Venue (all Ds or where claim arises)
o Federal Interpleader Act
1335: Removes limits on SMJ
1397: Expands venue to permit venue where any claimant resides
2361: Permits nationwide service of process
o Only bare jurisdiction required, not complete!

Statutory Interpleader

Rule Interpleader

Federal Subject Matter Jurisdiction: Amount

Personal Jurisdiction

Minimal diversity, determined as between

claimants
$500
Nationwide service of process

Venue
Injunctions (freeze assets or require delivery
to a claimant)

Residence of one or more claimants

Specifically provided for interpleader cases in
2361

Complete diversity, determined as between

stakeholder and claimants
$75,000 +
Must meet ordinary jurisdiction rules: contacts
with claimants required and service under Rule 4
Ordinary venue rules under 1391
No specific basis: courts have used 2361 (where
necessary in aid ofjurisdiction)

Federal Subject Matter Jurisdiction: Diversity

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