1) CIVIL PROCEDURE OUTLINE

2) Jurisdiction over the person (In Personam)

3) Can we sue a defendant in a particular state?
a) The court must have power over something.
i) For the orders to be binding the court must have power
ii) The court either has power over the defendant or their property
4) Two Step Process
a) Does the law of the court (state law or FRCP Rule 4) authorize jurisdiction (look at state long arm statute)
i) If no, then there is no jurisdiction
ii) If yes, go to 1.2.
(1) Most states simply say their statute will extend as far as Constitutionally allowable
b) Does the jurisdiction authorized by the court, comport with the Due Process Clause of the 14th Amendment?
i) The Constitutional Standard is, “Such Minimum Contacts with the forum state such that exercise of jurisdiction does not
interfere with the traditional notions of fair play and substantial justice.” (International Shoe v. Washington)
(1) This is very flexible and it expands jurisdiction
(2) We can get in personam jurisdiction even if the defendant is not served in the forum.
(3) No where does International Shoe say that it overrules Penoyer.
(a) Here is the test if the defendant is not in the forum
(4) Minimum Contacts
c) In Personam Jurisdiction (2 Types: Specific and General)
i) Specfic Jurisdiction- Fewer contacts, but litigation arises out of those contacts.
(a) Some connection to that forum.
(2) Three factors determining specific jurisdiction: Purposeful availment, State Interest, and Convenience.
(a) Purposeful availment is the most important of the three tests. State Interest and Convenience are balanced
against one another after determining purposeful availment.

5) Purposeful availment Minimum Contacts

6) State Interest
i) Fair play and substantial justice
7) Convenience

(1) Purposeful Availment (a.k.a. Minimum contacts)

(a) Definition of Purposeful availment: Defendant can reasonably expect to be hailed before the state’s courts. The
Quid Pro Quo Idea. If the defendant has purposefully directed activities to the forum state, jurisdiction is
presumptively reasonable, and he will have to make a compelling argument that other considerations make the
jurisdiction of the state unreasonable. (Burger King, WWVW).
(b) WWVW- A corporation must purposefully avail itself to the privileges of doing business in the state
(i) Forseeability- Can reasonably be expected to be haled into court there. Burger King
(ii) Purposeful availment- Hanson v. Denckla (Grandma creating trust then moving to Florida) Control over
third party was not present. Bank did not reach out to Florida. They did not advertise or purposeful
availment.
(c) Stream of Commerce; 2 definitions
(i) Gray v. American Radiator: If you can reasonably foresee that your product may wind up in a foreign
state, when it enters the stream of commerce, you have purposefully availed yourself on that state.
(ii) Asahi and WWVW: Purposeful availment or substantial connection- A corp. must do something to
purposefully direct its goods into a certain state to justify jurisdiction
(2) State Interest (Keaton v. Hustler) – slander was out of state and plaintiff was out of state, but in state residents read
the magazine and the court found the aggregate of the readers sufficed a state interest.
(3) Convenience- That it is not so inconvenient to the defendant. The greater the state interest, the more inconvenient
the forum can be. The less, the more convenient it needs to be.
(4) Quality and Nature- (Kulko v. Sup. Ct.) Father buys plane tickets for kids to go live with mother in CA. Did not
purposefully avail himself of the benefits and protections of the state. His purposeful act outside of the state caused
an effect within the state, but that effect was not wrongful activity. Effects within the state only apply to wrongful
activity.
(5) State interest, convenience, and quality and nature all play into “fair play and substantial justice.” There must be
purposeful availment. You can have the last three, but if no purposeful availment there can be no jurisdiction
ii) General Jurisdiction (for individuals)
(1) A court can exercise power over a defendant on any kind of case.
 (a) The case can arise anywhere in the world.
(2) In-State Service (Burnham v. Superior Ct). Scalia still says in state service falls under general jurisdiction, stating
that minimum contacts only applies to absent defendants. Other justices disagree, stating that there should only be
specific jurisdiction.
(3) State of domicile (presence plus an intention to remain indefinitely, you don’t lose a domicile until you gain a new
one.)
iii) General Jurisdiction (for corporations)
(1) State of Incorporation
(2) Continuous and systematic business- Helicopteros- purchases and related trips, standing alone, are not sufficient
basis for a State’s assertion of jurisdiction.

iv) In Rem Jurisdiction

v) In Rem- Judge only has power over the property. Judgment can only be of the value of the property.
(1) Pure in rem- rights to a piece of property are being determined in regard to all claimants. (Always within the
jurisdiction of the state that the property is located.)
(2) Quasi in rem type 1- Case arises out of the property (always within the jurisdiction of the state where the property is
located). This is between specific claimants. Property is seized to determine who owns the property. I.e. Specific
Jurisdiction
(3) Quasi in rem type 2- Case does not arise out of property. Rather property is attached for basis of jurisdiction.
Shaffer v. Heinter basically eliminated Type II for intangible property. You must show minimum contacts between
the tangible property and the case at hand if the property is being used to get jurisdiction over the person. Type II
has been upheld in cases afterwards for tangible property when it is added to other factors. Some states still say that
unrelated tangible property can be seized without minimum contacts.

8) Attacking Jurisdiction
a) In federal court, and most state courts, you must object to venue, jurisdiction, or process in the first motion that you file.
Failure to object in your first motion means that you waive your right to object.
b) You can only object to jurisdiction once. If you argue it and lose, you cannot collaterally attack (although you can appeal).
c) If you have a default judgment entered against you, you can attack jurisdiction collaterally.
d) The special appearance rule (COMMON LAW): you can make a special appearance just to argue jurisdiction. If you
mention the merits of the case, you have submitted to general jurisdiction.
e) The limited appearance rule: In quasi in rem cases, most states have a provision that you can appear solely for the purpose
of defending your property. Common Law.
f) 12(b) Motions:
i) Lack of subject matter jurisdiction
(1) Can be brought at any time
ii) Improper Personal Jurisdiction
iii) Improper venue
iv) Insufficient process
v) Failure to state a claim
(1) Can be brought at anytime throughout the trial
vi) Failure to join an indepensible party
(1) Can be brought at anytime throughout the trial
g) Rule 12(h): You have 20 days to respond. You can either make a motion or a answer. You can join your motion for lack of
jurisdiction with any other motion to dismiss available under this rule (ie: you can argue the merits to an extent). However, if
you lose on one of these motions to dismiss, you cannot bring up another one later (you can’t move to dismiss on merits, and
then move to dismiss on jurisdiction). Different from special appearance rule in that merits can be mentioned. Lack of
jurisdiction is waived if it is not mentioned in the first motion.
h) In general – reach of Fed District Courts is same as state the ct sits in. Includes State’s long arm statutes – Rule 4(k).
Exception is 4(k)- who is served at a place within a judicial district of the United States and not more than 100 miles from
the place from which the summons issues.

Notice
9) Purpose of notice: to make judgments final and binding, to facilitate adversarial system. Required by Due Process.
a) In the Pennoyer era, notice also helped to establish jurisdiction. Post Pennoyer, notice and jurisdiction became two
separate issues. Notice is to provide protection of property rights.
10) Two steps for proper notice (State and federal rule and Mullane). This process is similar to jurisdiction test.
a) Is notice proper under the state rule, if in a federal court is it proper under FRCP Rule 4
b) Is notice proper under due process clause of the 14th Amendment of the Constitution? The test is the Mullane Test.
 c) The Mullane Test: Notice must be reasonably calculated to inform and succeed.
i) There is a balancing act between cost and the most efficient means of informing the defendant.
ii) Notice by publication and posting (constructive notice) is usually not sufficient. They are appropriate only if you cannot
locate other contact information.
iii) If there is a superior way that is more likely to reach ∆ --must take that way. IF there is an existence of better
alternatives, must use those (Greene v. Lindsay –posting notice of eviction on door). BUT – still not best notice, but
reasonably calculated notice.
iv) Actual notice does not cure the service problem. It is more efficient in the long run to comply with the rules.
d) Service under Rule 4
i) Rule 4(c)(1): A summons with a copy of the complaint.
ii) Service must be commenced w/in 120 days of filing suit.
iii) Rule 4(d): A person can send back the waiver form to waive the right of personal service. Waiving service does not
waive objections to jurisdiction, venue, etc.
(1) Incentives to waiving service:
(a) More days to file answer, 60 instead of 20.
(b) If there is no waiver, defendant pays costs of service
iv) If they do not respond, SERVICE STILL MUST HAPPEN!
(1) Maryland State Fireman’s Assn. v. Chaves: The waiver form must be returned, even if the defendant does receive
notice of the suit. Actual notice is not a waiver.
e) Service upon individuals within a judicial district of the U.S.
i) If service is not waived by the defendant, the plaintiff must enact personal service on the defendant.
ii) Rule 4(e)(1): You can also make service pursuant to the law of the state in which the district court is located, or in
which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general
jurisdiction of a state. Look to rules of the state.
iii) Rule 4(e)(2): Personal service is enacted by: delivering a copy of the summons and of the complaint to the individual
personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of
suitable age discretion residing therein, or to any agent authorized by law to receive service.
(1) National Equip. Rental v. Szukhent you can contract right to personal service to an agent, as long as the agent
performs in good faith—Florence Wineberg promptly forwarded the summons to the Szukhents.
(2) MSFA v. Chaves, Plaintiff mailed Chaves’ notice in first class mail, this was not sufficient since the Maryland Rule
of Procedure required certified mail.
f) Personal Service against Corporations
i) Rule 4(h)(2): By delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or
to any other agent authorized by appointment or by law to receive service of process.
g) Immunity from Service:
(1) If you are voluntarily within a jurisdiction at the time of your arrest and incarceration, you are subject to process.
(2) However, if you are compelled to enter a jurisdiction by a court (you’re testifying, answering a summons) then
you’re immune from process while in the jurisdiction.
(a) The policy behind the immunity rule is not to give a disincentive to a defendant to come to a state for a criminal
trial and while there receive service for a civil trial.
(b) Sivnskty – car accident & children
(c) Immunity issues are no longer as important as they once were due to modern long-arm statutes.
h) Personal Service and Fraud:
i) If you are induced to enter a state by false means for the purpose of gaining jurisdiction, then that jurisdiction is not
valid.
ii) However, if you are already within a jurisdiction and someone tricks you into receiving service than it is valid.
(1) Wyman v. Newhouse – fraudulent means to get to FL…marriage solicitation case.
Opportunity to be Heard
11) Prejudgment Remedies: seizure of property without notice (garnishment, replevin, temporary restraining order, sequestration).
12) You don’t have to own the property to object to prejudgment remedies, you just need to have a possessory interest.
a) Fuentes: ct found FL and PA statutes unconstitutional b/c they took away the right of participation by not allowing a hearing
before property was seized. Only conclusory allegations had to be made by the Plaintiff. Ct seems greatly concerned with
accuracy. Good procedures enhance the truth Wrongs can’t be undone after the fact. Ct. did not want arbitrary
encroachment. Participation is also important – getting to tell one’s side of the story.
i) White in the Dissent in Fuentes: concerned that majority’s decision will just lead to companies making “contracts of
adhesion” that serves as a waiver to due process rights or says collection costs will go to customer. Bad for economics.
13) When evaluating if a state’s seizure process meets 14th amendment standards, use the Matthew’s Test: White – opinion found LA
statute constitutional b/c it protected due process rights. Value of accuracy supercedes participation, whereas in Fuentes,
participation was more emphasized.
a) Analyze the defendant’s interest
i) Effect on their credit rating
ii) Their possessory interest in the property
b) Analyze the Plaintiff’s interests
i) Do they have a pre-existing interest in the property?
ii) Safety of the property
c) Analyze the risk of error – what procedures are in place?
i) Is there a specific allegation of pre-existing intent required?
(1) Require an affidavit
ii) Is the writ judge reviewed or clerk?
iii) Defendant gets a hearing at some point.
(1) Is there an immediate post-seizure hearing?
iv) Is a bond required? Need bond as a disincentive to ∏ for making erroneous claims.
(1) At the very minimum there needs to be a bond requirement and an immediate post-seizure hearing.
d) Cases:
i) North Georgia v. Di-Chem: White strikes down statute b/c it didn’t have any of the “saving” procedural characteristics
that LA one did --∏’s claims don’t have to be supported, no chance for early hearing, no probable cause requirement,
no-pre-existing interest in the property.
ii) CT v. Doehr: Ct determined statute unconst based on Matthew’s Test. Balancing interest of ∆, interest of ∏, and risk of
error. Ct found that in Doehr, there was a weak ∏ interest, strong ∆ interest, and a high risk of error b/c of the req of the
CT statutes.
iii) Extenuating Circumstances: Might be OK to seize property for public safety before hearing. I.e. FDA taking bad meat
without hearing. This is a public health concern.

Subject Matter Jurisdiction

14) Subject Matter Jurisdiction cannot be waived. It’s meant to divide resources among courts who might have an interest; not for the
parties.
15) Subject Matter jurisdiction is over the claims, while personal jurisdiction is over the parties.
16) A court must have power over the case you’re bringing
a) States often divide courts for the sake of efficiency into criminal and civil courts, as well as probate and divorce courts.
Separate kind of jurisdiction from personal; and courts must question subject matter jur. on its own.
b) General Jurisdiction: Can hear any case (except those covered by Courts of Exclusive jurisdiction). State courts have
general jurisdiction.
c) Limited Jurisdiction: can only hear limited kinds of cases, jurisdiction can overlap with courts of general jurisdiction.
Federal courts have limited jurisdiction based on the Constitution.
d) Concurrent Jurisdiction: when two courts have jurisdiction over the same case (almost always the case with diversity cases in
federal court).
e) Exclusive Jurisdiction: The court is the only court with the jurisdiction to hear this type of case (ex. Bankruptcy and Patent).
17) Federal Courts are courts of limited jurisdiction. They cannot exceed the power granted to them by article three of the
constitution. The constitution created the Supreme Court. The lower courts are created by congress, and cannot exceed the power
granted to them by Congress (which cannot exceed power granted in article 3). Congress can make some areas exclusively
federal.
18) Subject Matter Jurisdiction cannot be waived. It’s meant to divide resources among courts who might have an interest; not for the
parties.
19) Sua Sponte(On its own): The court has the obligation to raise issues of subject matter jurisdiction. Otherwise, the jurisdiction
violates constitution at the state’s expense. Violates state sovereignty.
20) A dismissal on subject matter jurisdiction is not dismissal on the merits. Plaintiff must file in correct court.
21) 2 kinds of Federal Jurisdiction: Diversity Jurisdiction and Federal Question Jurisdiction:
a) Diversity Jurisdiction (§1332)
i) There is diversity of citizenship
(1) There must be complete diversity of citizenship: all ∆’s are from a different state than all ∏’s
(a) Citizenship for personal parties is determined by your state of domicile (presence + intent to remain
indefinitely).
(i) Intent to remain indefinitely: Courts will look at if you own a home, voter registration, in-state tuition.
(ii) Mas v. Perry – don’t lose one domicile until you acquire a new one. Complete diversity must exist.
 1. A foreign alien will not have a domicile until there is an intent to remain indefinitely. This may create
a window where the alien is not domiciled.
(b) 1332(c) Citizenship for business:
(c) State of incorporation; or
(d) Their “principle place of business” (There is only one principle place of business)
(i) Three tests for principle place of business:
1. The nerve center test: Corporate headquarters
2. The operational test: Where the majority of operations occur
3. Total activity test (Hybrid): Combination of the first two. Considers all circumstances surrounding a
corporation’s business.
4. § 1359: a corporation cannot create a corporation to handle their legal work for the purpose of creating
diversity jurisdiction (jurisdiction cannot be by assignment, or improperly or collusively made).
ii) The amount in question is greater than $75,000.
(1) This does not include interest on the claim and costs.
(2) The claim itself must exceed $75,000.
(3) The claim can be dismissed only when there is a Legal Certainty (this is construed fairly liberally) that the claim is
really for less than the jurisdictional amount. Gives deference to plaintiff.
(4) If the amount of the claim decreases, the case stays in federal court, although the ∏ may be responsible for costs.
Disincentive for inflation of claim by ∏. Also, if the jury/ct decides a ∏ recovers less than $75,000, they may also
be liable for court costs (§1332b).
(a) Rule 11: controls everything filed in fed ct – must always be in good faith and meet reasonableness test.
(5) Aggregation:
(a) Where we must add two or more claims to get over $75,000.
(b) Single plaintiff can aggregate their claims against a single diverse ∆.
(i) They can be totally unrelated claims.
(c) There is no aggregation (add the claims together) if there are multiple parties on either side.
(i) Single plaintiff cannot aggregate their claims against separate ∆’s.
(ii) Two plaintiffs cannot aggregate their claims against a single ∆ to achieve the jurisdictional amount
required.
(d) For joint claims use the total value of the claims.
(i) Anyone of the defendants can be hit for the claim
(ii) You can tell it is a joint claim b/c it says “joint.”
(6) Policy Issues:
(a) So out of state defendants will not face local bias.
(b) Federal judges should be more neutral (appointed and tenured).
(c) To help foster national growth and development.
b) Federal Question Jurisdiction (§1331)
i) There are only a few types of cases that are exclusively federal (antitrust)
ii) Policy:
(1) Expertise. This is their law, federal judges have a better understanding.
(2) Uniformity: The law should be the same or similar in Indiana of California.
(3) Combat hostility against federal issues in state court. This arose after the civil war with southern states.
iii) §1331: The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or
treaties of the United States.
(1) § 1331 is worded the same as Article III, but it is construed more narrowly than Article III. This is because we do
not want federal courts stepping on states rights when the issue does not really turn on a federal issue. (Mottley
Rule)
iv) To bring a case in district court, you must meet the requirement of §1331 according to:
(1) The Mottley Rule/The well pleaded complaint rule: In order to arise under federal law, the federal issue must be
part of the plaintiff’s original claim.
(a) Is the plaintiff enforcing a federal right?
(b) Mottley: questioned whether the ∏ could anticipate a defense by the ∆ that would include a constitutional
question. Ct ruled that the ∏’s cause of action must arise from a federal issue.
(i) Must be clear elements. Mere references to federal claims won’t suffice if they are irrelevant to the real
claim. Federal issue must arise out of the claims pleaded that are necessary to win the case. If claim is
based on federal law, case will likely turn on fed law and should be heard by fed. If is about state claim,
case can’t be channeled through fed ct.
(ii) A plaintiff cannot invoke the original jurisdiction of the federal courts either by anticipating a federal
defense or otherwise importing a federal question into his complaint that is not essential to his case.
 (2) Is the federal issue important enough to warrant federal jurisdiction? (TB Harms and Merrell Dow).
(a) The Holmes Creation Test: if Federal law creates the remedy and the right to sue, you clearly have federal
question jurisdiction (the vast majority of all cases).
(b) The Substantiality Test: If the state created claim requires interpretation of federal law that has a substantial
impact, you can argue for jurisdiction (it doesn’t mean you’ll get it—see TB Harms, Smith, Moore, and Merrell
Dow).
(c) CASE PROGRESSION:
(i) Mottley: first cut at § 1331 – meant to channel in fed law if it turns on fed law.
(ii) TB Harms: Even when fed issue appears in claim, has to be significant in the case.
1. Outlines 2 areas where subject matter ought to exist: When fed law creates the right to sue OR when
claim requires interpretation of federal legislation or policy.
2. Means you either use the Holmes Creation Test or The Substantiality test if state issue.
(iii) Smith: Ct found there was fed jur if a state cause of action that incorporated a federal issue –
question of whether a law was unconstitutional. Even if a state claim, can be federal jurisdiction when the
federal issue is a substantial or significant component.
(iv) Moore: State cause of action with federal issues – (state action borrowed language from fed statute on
safety). Ct found no jurisdiction b/c was just the fed statute was just being used. This is a state rule that
just happens to have the same language as the federal rule.
(v) Merrell Dow: A complaint alleging a violation of a federal statute as an element of a state cause of action,
when Congress has determined that there should be no private, federal cause of action for the violation,
does not state a claim arising under the Constitution, laws, or treaties of the United States.
v) Supplemental Jurisdiction- the umbrella term for (Pendent Claim, Pendent Party, and Ancillary Jurisdiction):
(1) Pendant Jurisdiction:
(a) Pendant claim jurisdiction: ∏ joins more than one claim against a single ∆ (Perhaps one claim based on federal
law, one based on state law.
(b) Pendant party jurisdiction: ∏ has a claim against one ∆ based on federal law, and another claim against another
party based on state law. Usually the third party who was impleaded by the original ∆.
(2) Ancillary Jurisdiction-Refers to all the claims that other parties bring in response to the ∏’s original complaint.
(3) Purpose of Supp. Jurisdiction:
(a) Convenience- Much easier for both parties to report to one court instead of a state and federal ct.
(b) Efficiency- Does not waste court’s time. Don’t have to show evidence at two different ct’s. Quicker trial.
(c) Fairness
(4) The Gibbs Test/Common Nucleus of Operative Fact Test: CNOF
(a) State and federal claims must derive from a CNOF. If the facts of the case are such that you would expect the
two claims to be tried together, then they should be tried together.
(b) But, if bringing a supplemental claim would violate diversity requirements, than it is not allowed. (Ex. You
want to implead another party, but doing so would violate diversity. Owen Equipment v. Kroger…found out
that principal place of business was actually same as ∏. Meant to keep ∏ from circumventing diversity rule).
(c) Policy rationale:
(i) Judicial Economy
(ii) Efficiency
(iii) Convenience
(5) §1367(a): Codified Gibbs, and overruled Finley. Gibbs CNOF test. “Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional parties.
(a) §1367(A) –general rule: Unless it violates another statute, if the district ct has original jur over the original
claim, they will also have jurisdiction over other cases or claims as defined in Gibbs (meaning those with
CNOF). Applies to federal question jurisdiction and diversity. If §1331(federal question), go to 1367 (C). If
§1332 (Diversity Jurisdiction), go to 1367B.
(6) 1367(b): only relevant when jurisdiction is by diversity. You cannot attach a claim using supplemental
jurisdiction if it would violate diversity. (Meant to codify Owen Equip v. Kroger). Only applies to ∏’s.
(a) Does 1367(b) take away from supplemental jurisdiction?
(b) Purpose: to keep ∏ from circumventing diversity requirement.
(c) Aggregation under 1367 B: if you want to attach a second defendant most circuits say you can do so if the
$75000 requirement is met with the first defendant, 3 and 10th circuits say no.
(d) If a defendant impleads a non-diverse defendant, this does not violate diversity, unless plaintiff also brings suit
against the non-diverse defendant.
 (e) P (IN.) (>$75,000) D (IL.) This is fine b/c P has not brought a claim against the non-diverse
defendant

i. D (IN.)

(f) P IN.) (>$75,000) D (IL.) This is not fine because the P has brought a supplemental
claim against a non-diverse defendant, which breaks the rule that requires total diversity of Plaintiffs and
defendants.

i. D (IN.)

(7) §1367(c): Courts MAY decline supplemental jurisdiction under §1367(c) even if 1367(a) is met when:
(discretionary)
(a) The claim raises a novel or complex issue of state law.
(b) The claim substantially predominates over the claim over which the district court had original jurisdiction.
(c) The district court has dismissed all claims over which it had original jurisdiction.
(d) In exceptional circumstances there are other compelling reasons for declining jurisdiction.
(i) Executive Software N. America: §1367c is the only valid basis for declining jurisdiction if both a and b are
met. The Court said that “Compelling reasons” meant that declining jurisdiction “best accommodates the
values of economy, convenience, fairness, and comity.”

(8) Applying Supplemental Jurisdiction:

(a) If there are multiple claims – first check to see if they can ALL originally go under fed question or fed diversity.
(b) If there is not original fed question or diversity on a particular claim, check supplemental jurisdiction: §1367
(A) for both fed question and diversity of the anchor claim.
(i) Ask whether there is CNOF b/t the claims.
(c) If diversity – apply §1367 (B) – can’t add a non-diverse party.
(d) Look at discretionary factors from §1367 (C).

22) Removal (§1441: The Removal Statute) (Allows a defendant a choice of court)
a) If ∆’s are sued in state court, in a case that could have been brought (look at 1331, 1332, 1367) in federal court, the ∆ can
remove the case to federal court.
i) Do not call it a transfer, it is a removal.
ii) The scope of the case the ∆ can remove is the same as the scope of the claim the ∆ could have filed in federal court in the
first place.
iii) Only defendant’s can remove, plaintiff can never remove even if counterclaimed.
iv) Removal can only occur within 30 days of service of the document that made it removable.
(1) However, you must remove to the federal district that encompasses the place where the state claim was filed.
b) A federal question case can always be removed.
c) A diversity case can be removed only if none of the ∆’s were sued in their “home court.”
i) Policy of home court advantage for ∆; if ∏ sues where ∆ is from, no removal.
ii) If a defendant is sued in their home state, but they are removed from the case then removal is proper.
iii) No removal if the case has been in state court for more than a year.
d) §1441(c) ---When a claim based on §1331 jurisdiction is joined with an otherwise non-removable claim, and when the claims
are separate and independent, the entire case can be removed to federal court. This could very well be read as being
unconstitutional. Once this case is removed, the other claim should be remanded. **Only used if the claims to be removed
are separate and independent (i.e. not from CNOF), and so that it’s not inefficient to have 2 cases. As a matter of law, if ct
finds no jur over state issue, it must remand it back to state court.
i) Borough v. Lancaster – 1441c applies only when there is no CNOF. Can’t remand back to state court if claims are
legitimately joined.
23) Attacking subject matter jurisdiction: If subject matter jurisdiction has been litigated the first time around, CANNOT collaterally
attack (you can appeal, but not attack).

Venue
24) This tells us exactly what federal district court we can go to.
25) A third limitation on a ∏’s choice of forum: The court must have personal jurisdiction, subject matter jurisdiction, and you must
choose the correct venue.
26) Venue is based on county/district boundaries, while jurisdiction is based on state boundaries.
27) Venue is about convenience: it is not a constitutional issue, and you cannot collaterally attack on venue.
28) Venue in Federal Court §1391
a) § 1391(a) DIVERSITY:
b) Venue can be in:
i) The district where the ∆ resides, if all ∆’s live in the same state.
(1) If all defendants reside in the different districts in the same state you can lay venue where anyone of them resides.
(a) If one resides in southern district of state A and the other resides in the northern district of A; you can chose
either one.
(b) Venue uses the term residence. But this is usually considered domicile.
ii) The district where the substantial parts of the events or omissions giving rise to the claim arose, or where a substantial
part of the property subject to the action is located.
iii) If there is no federal district that satisfies the A or B, you can file in a district in any district where you could get personal
jurisdiction over one of the defendants.
c) § 1391(b) FEDERAL QUESTION:
d) Pretty much the same as Diversity requirements… slightly different wording on opt 3 (a judicial district in which any
defendant may be found, if there is not district in which the action may otherwise be brought). A little easier than requiring
personal jurisdiction. But –since Burnham, anywhere person may be found, service means have personal jurisdiction.
i) The district where the ∆ resides, if all ∆’s live in the same state.
(1) If all defendants reside in the different districts in the same state you can lay venue where anyone of them resides.
(a) If one resides in southern district of state A and the other resides in the northern district of A; you can chose
either one.
(b) Venue uses the term residence. But this is usually considered domicile.
ii) The district where the substantial parts of the events or omissions giving rise to the claim arose, or where a substantial
part of the property subject to the action is located.
iii) A judicial district in which any defendant may be found, if there is not district in which the action may otherwise be
brought
e) 1391(c) Corporations:
i) Resides in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.
ii) If there are multiple districts in the state, it is subject to jurisdiction in any district in that state where it would be subject
to personal jurisdiction if that district were a separate state.
(1) If there is no such district, the corporation shall be deemed to reside in the district within which it has the most
significant contacts.
29) Transfer of Venue (Staying in the same court system; one federal ct. to another federal ct.)
a) Tran3sfor- The court transferring the case away.
b) Transferee- The court receiving the case.
i) This court must have proper venue and personal jurisdiction over the defendant.
c) Forum non conveniens: The forum is not convenient. A common law principle. To invoke this doctrine, the forum has to
have proper jurisdiction and venue, but that there is another forum that would be much more convenient to hold the case.
i) This results in a dismissal of the case, and is now only used when cases involve foreign countries. (Vs. transfer of venue,
in which case just moves. Easier to get a transfer of venue in federal court than FNC in state court.)
ii) When making a motion for forum non conveniens you must prove that:
(1) If the remedy provided by the alternate court completely sucks, it’s a no go. This would have to be where the
government is so different and there is basically no remedy, an example might be a third world country.
(2) ∆ must show that private interest factors (convenience, witnesses, evidence) and public interest factors (burden on
the courts) compel a dismissal.
(3) The plaintiff’s forum is presumed to be correct, and deference is usually given to their choice of forum.
iii) Piper Aircraft: FNC exists when the alternative forum for a federal case is outside the US. Takes into acct all the private
and public interests. Scotland existed as an alternative forum; administrative and public interest; localized conflict,
private interest – strong connections with Scotland; Ct finds American public interest insufficient.
(1) Plaintiffs were from Scotland and basically the only reason they came to America was b/c we have big awards.
d) §1404 and 1406 now supercedes forum non conveniens. Forum non conveniens still applies if the alternative forum is in
another country. (Based on idea of different sovereigns. FNC still important for state courts, where states are still sovereign.
Fed cts are all one unit and just transfer in b/t. Alternative forum is always another fed ct).
e) §1404: Change of Venue
i) The transfor court has proper venue.
ii) For the convenience of all parties and witnesses;
(1) Balance of interests b/t ∏’s and ∆’s.
iii) And in the interest of justice, (standard) a district court may transfer any civil action to any other district or division
where it might have been brought.
iv) When the case is transferred, the law of the original state is follows.
f) §1406: Cure or waiver of defects
 i) A transfer that allows a case to be transferred from a forum that lacks proper venue to a forum that has venue—rather
than forcing the plaintiff to “start over,” he is allowed to transfer, helping w/ statute of limitations considerations, etc.
ii) When a case is transferred under §1406, the law of the original court does not follow the transfer.
(1) In GOLDLAWR V. HEIMAN, The US Supreme court interpreted this to mean that even if the court lacks personal
jurisdiction, they can transfer the case to a forum that does. Is this just? It is a criticized decision, but still good law.

30) Erie Doctrine—State v. Federal Law in Diversity Cases

31) The Rules of Decision Act §1652: The laws of the several states, except where the Constitution or treaties of the US or Acts of
Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases
where they apply.
a) Swift v. Tyson: interpreted the “the laws of the several states” in the Rules of Decision Act to mean only state statutes and
certain local rules—this meant that courts could apply whatever they felt was the “most progressive” rule. In federal
diversity cases, courts were not required to follow state judgemade law.
i) The Policy Level: The system was open to abuse for forum shopping, because you could get a different outcome in state
and federal court. There was also inequitable administration of the law because a case would be decided differently if
the citizens were diverse as opposed to non-diverse. These were the twin evils Erie was intended to fix.
ii) Statutory Level: the Swift case misinterpreted the Rules of Decision Act. The act was not unconstitutional, but its
interpretation was. Erie determined the Act includes common law. (Swift thought the duty of the common law judge was
to find the truth…change in philosophy of the law. Modern view – law is not discovered…it’s determined by people and
the courts. Expressed by agents of the state. Federal judges are only given power in constitution).
iii) The Constitutional Level: Swift violated the 10th amendment—all powers not granted to the federal government were
granted to the states. Nowhere in art. 1 sect. 8 does it give congress the power to make up contract law, or tort law.
Nothing gives the fed. Courts the power to announce general common law.
b) Erie v. Tomkins: overturned Swift v. Tyson—said that in diversity cases, the federal courts do not have the power make
general substantive law. They must apply state statutes and state common law. Federal Courts do have the power to make
procedural rules. PURPOSE OF ERIE – prevent the twin evils: forum shopping and inequitable administration of the
law.
i) A rule is substantive if it is meant to affect real world behavior. Would you forum shop to get/avoid the rule?
ii) A rule is procedural if it is meant to affect the litigation process.

32) Might want to fill in decisions subsequent to Erie

a) ERIE ANALYSIS
i) If no apparent clash, apply the state rule, and STOP.
ii) Is there an apparent clash between state law and federal procedural law? If so, isolate the conflict.
iii) If there is a clash b/t federal and state law, is it codified? (rule or statute)? (RULES ENABLING act makes FRCP
trump)
(1) If yes, use Hanna II analysis:
(a) Is the federal rule or statute constitutional?
(i) If no (which is unlikely) apply the state rule, and STOP.
(ii) Does it really regulate procedure? (Does the rule have a legitimate procedural purpose?). If yes,
CONTINUE to 1.3.3.1.2.
1. The FRCP will almost always have a “legitimate” purpose given the process they go through to be
codified.
2. If the federal rule only has incidental effects on substantive rights, it is still procedural (Sibbach –
medical exam). Rules Enabling is very favorable to federal law. Erie was too deferential to states.
Pendulum swinging back to find a balance.
(b) In most cases, if the rule has a legitimate regulatory purpose, it will trump the state rule
(i) Because this is a Federal Rule or statute, the Rules of Decision Act does not apply. The Rules Enabling act
gives the Supreme Court the power to prescribe general rules of practice and procedure and rules of
evidence for cases in the US District court. Therefore, the federal rules should be applied.
(c) However, if applying the federal rule interferes with important state substantive policies, read the federal rule
narrowly to avoid the clash. (Walker v. Armco Steel—a statute of limitations tolling issue. Aberration.)
33) ** Note Cases:
i) Burlington Northern: conflict b/t Rule 38 which gave ct discretion to apply a penalty for frivolous appeals and AL law
requiring 10% penalty on ∆ for unsuccessful appeals. Court found that Rule 38 really regulated procedure…and that
 while there was a substantive state policy involved (sovereignty), the rule really was about enforcing rights, not the
rights themselves. In both cases, ∏ could receive compensation.

ii) Ricoh – expands Hanna analysis to include both federal statutes and federal rules developed under the Rules Enabling
Act. Strictly interested in applying federal rules or statutes when they conflict with state policies.

iii) If there is a clash b/t state and federal law and the federal law is not codified (rather it is judgemade procedural law)
apply the Erie/York/Byrd.
(1) Is the state rule outcome determinative? (York)
(a) Would it cause someone to forum shop to get or avoid the rule? Then it probably is outcome determinative.
(i) If no, apply the federal rule, and STOP.
(ii) Yes, Does the state law have a legitimate substantive purpose (Is it meant to regulate behavior in the real
world?)
1. If yes, then apply the state law over the federal law and STOP.
2. If no substantive purpose, then use Byrd balancing test.
3. The Byrd balancing test: weigh the federal and state interests in applying their interest in applying their
individual procedural. Must be a countervailing federal interest for the federal law to trump. If the
issue is constitutional (i.e. right to a jury), then fed law will usually trump over state interests of
convenience, etc.
 Hanna II
Is there a clash b/t
state law & Federal
Procedure?

No clash; Is the federal rule

No Yes
Apply State Law codified?

Is the federal law

Not codified; apply
No Yes valid under the
Erie/York/Byrd
Constitution?

Apply State Law

This will probably never
No
happen considering the
process it goes thru
Yes

Apply York; Outcome

Determinative Test based on
Apply Federal
Twin Evils; Forum Shopping
Law
and Inequitable application
of law

Unless

Is the state law

Not outcome
substantive? Unless doing so
determinative;
No Yes Does it effect interferes with state
Apply Federal
things in the real substantive policy; if so
Law
world? apply federal law
narrowly (Walker)

Not Substantive
but procedural.
No Yes Apply State Law
Apply Byrd
Balancing Test

Must be a countervailing
federal interest to trump;
Constitutional issue will
usually trump

34)
35) **Note Cases
i) Cohen : federal rule didn’t require bond; state law did. Must apply state law b/c bond would make ∏ forum shop.
ii) Woods: also might forum shop to escape state law.

iii) Ragan: different times when claim commenced – when filed or when service? State law determines when case begins…
b/c it’s an inherent part of statute of limitations, which is substantive.

36) Vertical Unity: between federal and state courts

37) Horizontal: Between all federal courts

Modern Pleading
38) Purpose
 a) To give notice to the other side so that they can mount their defense. This is called notice pleading, rather than fact pleading,
where the party bringing the claim has to give the facts of their claim.
b) A screening process for absurd claims and defenses.
c) To isolate the issue in dispute.
39) Rule 7(a): Pleadings allowed:
a) Complaint and answer
i) The complaint commences the case
b) Counterclaims and reply
c) Cross claims and answer
d) Third party complaint, and if there is a third party, a third party answer
e) No other pleadings allowed, except the court may order a reply to an answer or a third party answer.
40) Rule 8: the general pleading rule (5 Requirements)
a) 8(a): Claims for relief: Pleading shall contain:
i) A short and plain statement:
(1) On the grounds of jurisdiction (subject matter); and
(2) Showing the pleader is entitled to relief.
ii) A demand for judgment for the relief the pleader seeks.
(1) (Doesn’t say have to state facts or cause of action…more liberal than state action because discovery comes after
claim…don’t have access to the facts and other devices.) Facts are determined at discovery.
(2) If the pleading fails to state any parts of the complaint, the court can dismiss w/o prejudice (which means that you
can replead) as opposed to (with prejudice which means, you cannot refile)
b) 8(b): Defenses and Denials: In making an answer, party shall:
i) State defenses to each claim asserted, and shall admit or deny the charges upon which the other party relies.
ii) Facts that are presumptively within the knowledge of the ∆ must be admitted or denied.
iii) If party does not have sufficient knowledge to answer, they say so, and this acts as a denial.
iv) You can generally deny all claims, but you have to have reasonable belief that the denial is true (in accordance w/ Rule
11).
v) The three possible answers are admitting, denying, or saying I don’t know.
(1) Saying “I don’t know” is the equivalent to denying.
vi) Negative pregnant: If a party states, “They are not entitled to $40,000 of relief, that is essentially saying they are entitled
to $39,999.
vii) If you don’t deny a claim or admit to insufficient knowledge, you admit.
c) 8(c): Affirmative Defenses (the “but” defenses—a separate issue the ∆ raises that would win the case for the ∆)
i) A party must plead affirmative defenses in their answer. Use it or lose it. These include:
ii) Statute of frauds, duress, payment, res judicata, estoppel, contributory negligence, failure of consideration, or any other
matter constituting an affirmative defense.
iii) If affirmative defenses are mistakenly plead as counterclaims, the court will treat the pleading as if it had been properly
filed as an affirmative defense.
iv) Distinguished from a denial is that an affirmative defense is that it adds a new fact.
d) 8(d): Effect of failure to deny
i) If you fail to deny averments (aff. defenses) in a pleading that requires an answer, then you admit. If an answer is not
required, it is considered that the averments are denied.
ii) If no responsive pleading is required it shall be taken as denied or avoided.
e) 8(e): Pleading to be concise and direct; Consistency
i) Each averment of a pleading shall be simple, concise and direct.
ii) If one of the averments is insufficient/frivolous the other legitimate sections of the pleading are still valid.
41) Rule 9: Pleading special matters (2 Requirements)
a) 9(b): Fraud, mistake, and condition of the mind
i) All averments of fraud or mistake must be stated with particularity. (Use form 13).
(1) Policy is that fraud claims should not be made lightly, because they can really harm a company’s reputation.
(2) Denny v. Carey says you need only slightly more notice—You must make sufficient identification of the
circumstances.
b) 9 (g): If you wouldn’t expect damages to arise from the injuries claimed, you need to plead them specifically.
(1) Damages that wouldn’t be expected to flow from a particular event.
(2) (Policy: to protect defendant from unfair surprise.)
(3) Ziervogel v. Royal Packing Co., Pg. 524 if you experience increased blood pressure from a car accident, must state
specifically. Can’t bring up later to include with other injuries.
ii) **Also look at Rule 54c – gives party relief even if not included in the pleading…jury can determine what expectations
are. The jury can award an amount above what plaintiff claimed in their complaint. Reasoning behind this is simple.
 After all facts are shown in case the jury may determine that the facts require a larger rewarded than what was plead
originally. This is in addition to 9(g) rule that special damages have to be pleaded.

42) **STRATEGY: general vs. specific pleading – If you plead specifically, you might plead yourself out of the courtroom b/c you
show facts that don’t add up to any law that grants recovery. If you plead generally, you cannot be thrown out through FRCP
12(c) because a judgment on the pleadings cannot be decided since you did not give any facts. But – lawyers try to use pleading
to get advantage with judge for motions, summary judgment, etc. If your case is very strong and you are moving towards a
settlement, pleading specifically is a good strategy.

a) Rule 10: Form of Pleadings

i) Pleadings must contain caption giving the name of the court, title of the action, the file number and designation.
ii) Number paragraphs and averments separately. Each paragraph should only contain one issue.
iii) Follow the forms, and you will always satisfy the court’s minimum.
b) Rule 11 Ethics and Pleadings (3 Requirements)
i) One source for the courts to police lawyers.
ii) 11(a): Everything filed in court shall be signed by the attorney or party (if they are representing themselves (include
address and telephone number)). Verification.
iii) 11(b): Signature certifies that to the best of their knowledge, information and belief, formed after an inquiry reasonable
under the circumstances that:
(1) It is not being presented or maintained for any improper purpose, such as to harass or cause unnecessary delay.
(2) LAW: The claims, defenses, etc are warranted by existing law, or by a non-frivolous argument for change in the
existing law. Current knowledge. It would not be fair to punish a lawyer for making a claim to change or add to a
law. It would not have been fair to punish Thurgood Marshall for his civil rights claims even though at the time
there was no right to relief.
(3) FACTS: The allegations and factual contentions have evidentiary support, or are likely to have support. Must do
investigation.
(4) The denials are warranted on the evidence.
(5) Basically, it must be objectively reasonable for the attorney to rely on their client’s claim. Would a reasonable
attorney under the circumstances certify the document?
iv) 11(c): If subdivision (b) is violated, the court may impose an appropriate sanction on the attorneys, their law firms, or
their parties. A party not represented by an attorney cannot be sanctioned for not doing legal research.
(1) The safe harbor provision: A motion for sanctions under Rule 11 must be served to the party 21 days before it is
filed with the court to give the other party opportunity to withdraw the offending documents.
(2) The court can also raise rule 11 violations sua sponte.
(3) Sanctions are discretionary – and ct has many different options. May or may not include compensating other side for
defending a frivolous lawsuit; take away the incentive for lawyers to threaten Rule 11. Has objective and subjective
components.
c) Rule 12: Defenses and Objections (∆’s arsenal) (7 Requirements)
i) 12(a) When Presented
(1) Unless a different time is given in a statute:
(a) W/in 20 days of being served with the summons and complaint, defense must be asserted;
(b) If service of summons has been waived under Rule 4(d), w/in 60 days, or 90 days if the defendant was outside
the US.
(c) If you’re served a cross claim you have 20 days to answer.
(d) If the claim is against the govt, or an govt. employee in their official capacity, they get 60 days to answer.
(e) If the ct. grants a motion for a more definite statement, the responsive pleading must be made within 10 days.
ii) 12(b): How Presented (Defenses)
(1) These defenses may be presented in the responsive pleading or in the 1st motion filed:
(i) Lack of subject matter jurisdiction;
(ii) Lack of personal jurisdiction;
(iii) Improper venue;
(iv) Insufficiency of process;
(v) Insufficiency of service of process;
(vi) Failure to state a claim upon which relief can be granted (similar to a demurrer);
(vii)Failure to join a party under rule 19 (compulsory party joinder)
iii) 12(c): Motion for judgment on the pleadings
(1) After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the
pleadings. This is where strategy comes into play from Rule 8 & 9. If a party just states a claim then a judgment
cannot be made. However, if a party makes very specific claims the defendant could move for 12(c) if the specific
facts are not sufficient.
 iv) 12(e): Motion for a more definite statement
(a) Challenges the structure of a pleading.
(b) The rules version of a special demurrer—basically, you can’t tell what the complaint is saying/ not enough facts
in the pleading.
v) 12(f): A Motion to strike
(a) Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by
these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon
the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.
(b) Can strike any insufficient defense
(c) Or can strike any redundant, immaterial, impertinent or scandalous matter. Can be done sua sponte, but almost
always a motion.
vi) 12(g): Consolidation of Defenses in Motion
(1) You can consolidate all of you’re motions into a single motion, just make sure that you plead anything under 12 (b)
in the first motion you file.
vii) 12(h): Waiver or Preservation of Certain Defenses
(1) If you fail to raise a defense having to do with personal jurisdiction, improper venue, insufficiency of process/
service of process in the first motion you file then they are waived.
(2) A defense of failure to state a claim upon which relief can be granted, failure to join a party under rule 19, and
objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under rule
7a, or by motion for judgment on the pleadings, or at trial on the merits. (so basically at any time).
(3) Lack of subject matter jurisdiction can be asserted at anytime.
d) Rule 15: The Amendment Rule (doesn’t change burden to plea; just affects timing issues). (4 Requirements)
i) 15(a): Amendments
(1) The “Oh crap” clause: you can amend once as long as you do so before an answer is filed.
(a) There is no amount of day requirement.
(b) A motion is not an answer.
(2) Defendant has a right to amend once after filing an answer within 20 days.
(3) If too late --If answers have been made, or 20 days have lapsed, you must get consent from the other party, or the
court may grant leave if “justice so requires.”
(a) If the mistake was in bad faith, or it would cause prejudice or unfair surprise to change, the court probably
won’t allow an amendment. (Aquaslide).
ii) 15(b): Amendments to conform to the evidence
(1) This only comes up at trial.
(a) The trial evidence does not match the pleading.
(2) When issues not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated as
if they had been raised correctly in the proceedings.
(a) Parties usually give an implied consent if they don’t object when the evidence to the issue is introduced.
(Moore) Child support would be implied in the pleading for child custody, however, alimony would not be.
(3) If evidence is objected to at trial on the ground that it was not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party’s action or defense upon the merits.
(4) Goal is efficiency – to litigate on what is really at stake.
iii) 15(c): Relation back to the amendments (after Statute of Limitations has run)
(1) If there has been a mistake in the pleading, and the statute of limitations has run, you can amend when the amended
pleading states a claim that arises out of the same transaction as the original pleading.
(2) Relation back to the original pleading- An amended pleading will be treated, for the purposes of the statute of
limitations, as if it had been filed on the date of the original pleading.
(a) 15(c)(2)
(i) You get “relation back” if the conduct has the same transaction or occurrence as the original complaint.
(3) If there is a change of parties, and the other party had actual notice of the suit within 120 days after the original
statue of limitations had run (reading within the constraints of 4m) then it’s allowed. The policy is no unfair
surprise.
iv) 15(d): Supplemental Pleadings
(1) Allows you to change pleadings that occur after you filed the pleadings. Basically it’s adding to the pleadings.

Joinder (7 Requirements)
43) Permission (Rules) + Power (Statutes)

44) General Claim Joinder: multiple claims against a single ∆.

 a) Permission: Rule 18; you may bring any claims against a single ∆. No test.
b) Power: 1331, 1332, 1367
i) 1331: Federal Question, constitutional issues, laws or treaties of the US.
ii) 1332: Complete diversity and amount in question greater than $75000.
iii) 1367: Supplemental Jurisdiction: CNOF. Claims by plaintiffs are always subject to criteria of 1332. (Courts are split on
aggregating the amount in controversy) Check for violations, 1367b.

45) Counterclaims: claims asserted by the ∆ against the ∏.

a) **Not an affirmative defense; ∆ is seeking relief from ∏.
b) Permission: 13(a); The Compulsory Counterclaim
i) It must be asserted, or the ∆ loses the right to it.
(1) You must assert it in this case or it will be lost.
ii) The Transaction Test: A counterclaim is compulsory if it arises out of the same transaction or occurrence as the
plaintiff’s claim against the defendant. Ways to determine:
(1) Is there significant evidence overlap;
(2) Is there significant overlap of issues;
(3) Would res judicata bar the claim (this is pretty much circular reasoning)? Unhelpful.
(4) Is there a logical relationship between the two claims: this is the test to focus on—is there a logical relationship
such that you would expect to try the claims together.
c) Power: Jurisdiction almost always okay, except in rare possibilities. The claim is usually by the ∆, so not subject to 1367b
issues. Usually have supplemental jurisdiction b/c the claim arises out of the same transaction, thus it meets the CNOF test.
Just be careful when the ∏ brings the claim against the third-party ∆. Check to see if diversity is ruined by joinder.
(1) Policy: to promote efficiency in courts, so the same case isn’t heard twice.
d) Permission: 13(b); Permissive Counterclaim
i) The ∆ can bring any unrelated claim that they have against the ∏.
(1) The ∆’s version of rule 18.
(2) Defendant can assert this claim, but does not have to.
ii) Power: 1331, 1332, and 1367. There must be independent jurisdiction over the claim.

46) Cross Claims: a claim against a co-party

a) Always optional, never compulsory.
i) Permission: 13(g): Claims must arise out of the same transaction of either the original claim or a counterclaim. (Same
test as compulsory counterclaims).
(1) Permission: Once a cross claim has been brought, 13(b) and 18 allows all other claims to be brought
ii) Power: Cross claims between ∆’s will always have jurisdiction because they will meet the CNOF.
(1) Remember cross claims by ∏’s are subject to 1367(b).
(a) Because the party being cross-claimed by the Plaintiff was originally joined under 19.
(2) Power: (provided there is independent jurisdiction) by ∏’s and ∆’s.
(3) However, the initial cross claim must arise out of the same transaction as the ∏’s original claim.
iii) 13(h): Joinder of additional parties
(1) Persons other than those made parties to the original action may be made parties to a counterclaim or cross claim in
accordance with Rules 19 or 20.
(a) You can only bring in an outside party if they would be a co-∆ on a claim against somebody already in the
involved in the suit. Usually jurisdiction b/c the claim will arise out of the out of the same transaction. (Unless
it is a permissive counterclaim (13b), in which case you would need an independent basis of jurisdiction).

47) Permissive Party Joinder: when you MAY join more than one party in a single suit.
a) Multiple ∏’s suing a single ∆ or Single ∏ suing multiple ∆’s.
b) Permission: 20(a): Parties may be joined when claims arises out of the same transaction or occurrence, AND there is a
common issue of law or fact. Defendants may be joined when the claims brought against them arise out of the same
transaction or occurrence, AND there is a common issue of law or fact.

c) Power: Subject to 1331, 1332, and 1367 (usually satisfied).

(1) Remember for diversity purposes, a single ∏ can’t aggregate claims against multiple defendants, or vice versa.
(a) The courts are split when there is an anchor claim over $75,000.
ii) 42(b): The court may order a separate trial for separate claims at their own discretion. Courts will do this when they feel
there are too many claims and it would be more efficient to have separate trials.
iii) 42(a): Which allows courts to aggregate claims at their discretion if there is a common issue of law or fact.

48) Compulsory Party Joinder: Rule 19: Parties that MUST be joined to the lawsuit. (Will usually be raised by the ∆ on rule 12(b)(7)
motion to dismiss for failure to join an essential party issues).
a) Is the outside party necessary?
 b) 19(a): Situations where there is an outsider that must be joined.
i) No complete relief to the current parties if the outside party is not joined. (Think Plaintiff)
ii) There will be a practical impairment of the outsider’s interest. (Think Outsider)
(1) The court cannot do anything against a party not joined. You don’t have a legal interest because you don’t have due
process.
iii) If there is a current party facing multiple or inconsistent obligations (ex. One signer on a two-party bank account sues the
bank). ∆ faces multiple liabilities. (Think Defendant)
(1) The focus on this test is on the defendant.
iv) If ANY ONE of the situations is present, the outsider shall be joined. If you cannot join the outsider due to jurisdiction
issues, then you analyze whether you should dismiss the case under 19(B).
c) 19(b): When court decides outsider CANNOT be joined b/c of jurisdiction issues (personal or SMJ), but determine whether
or not case can continue “in equity or good conscience” ---- Ct weighs factors to determine whether absent party is
indispensable, and the case should be dismissed. At this point we have already decided that the party should be joined in 19a.
Weighs:
i) ∏’s and ∆’s interests in letting the case go forward.
ii) Public interest (Courts and community) in seeing that the dispute is resolved in an efficient manner.
iii) If the issue is raised on appeal, the public’s interest in preserving a valid decision will weigh heavily.
iv) Absentee Indispensible- Occurs when the case is thrown out.

49) Impleader: Rule 14: the payback theory

a) ∏ brings claim against ∆, ∆ says “If I have to pay the ∏, then another party has to pay me pack. This is called derivative
liability. The claim must be a derivative of the original claim.
i) This deals with indemnity or contribution.
b) Power: 1367 Supplemental jurisdiction. It will always be CNOF. Obviously related.
i) Will always have supplemental jurisdiction under 1367(b) b/c it only limits claims made by the plaintiff.
c) The original defendant becomes the “Third Party Plaintiff”
d) The ∆ can bring in a 3rd party ∆ when the third party defendant is or may be liable for some or all of the judgment against the
third party ∏.
e) Motion to implead must be filed w/in 10 days after serving the original answer, after 10 days you need leave of the court.
f) Impleader is generally assumed to be at the court’s discretion.
i) Court is more likely to grant if it is filed early.
g) You cannot implead an existing party. You would file a cross claim instead.
h) Post Impleader Claims
i) 3rd party ∆ (party joined under rule 14) can assert counterclaims against the 3rd party ∏ under 13a or b. (They can’t do
this until they are joined under Rule 14 ---they must become opponents first).
ii) 14a: 3rd party ∆ can also bring a post impleader claim against the original ∏ when the claim arises out of the same
transaction. Therefore it would be CNOF. Then rule 18 kicks in, allowing other claims by the 3rd party ∆.
iii) What if the ∏ wants to counterclaim against a post-impleader claim made by a 3rd party ∆, and there are 1367b issues?
(i.e. new party brought in by rule 14 is from same state as ∏ and ∏ has a claim against him b/c new outsider party used
rule 14 to bring a claim against the ∏?).
(1) Most courts say okay, because the ∏ is the one being sued, which really makes him look more like a defendant, but
some say that 1367b forbids it.
iv) Rule 4k: the bulge rule: you can get jurisdiction over a party joined by rule 14 or 19 when service is made within 100
miles of the courthouse (where the summons is issued).

50) Intervention: when an outside party wants to be joined in the suit. Two types:
a) 24(a)(2): Intervention as a right. When an outsider meets the test, they shall be permitted to intervene (but there’s still some
discretion). TEST:
i) When a statute of the US confers the unconditional right to intervene (pretty much allows the government to intervene in
certain cases); or
ii) A three part test:
(1) The party has an interest in the case (can be economic, or otherwise); and
(a) There can never be a legal interest b/c outside parties are not legally bound by a judgment (Pennoyer).
(2) Unless the party is joined, there will be a practical impairment of their interest; and
(3) There is not someone already in the suit that adequately represents the interests of the outside party.
iii) More liberally construed than the compulsory joinder rule because an outside party is not being forced to join against
their will.
iv) Jurisdiction: usually supplemental jurisdiction, because of CNOF. However, 1367b applies to non-diverse ∏’s who seek
to intervene. If the ∏ is not diverse, look to 19 b to determine if the case should be dismissed. NOT TO ADD
INTERVENOR, but to dismiss if outsider can’t intervene and join.
v) Policy: efficiency v. the wishes of the ∏ who brought the suit.
b) 24(b): Permissive Intervention
 i) When applicant’s claim or defense has the same question of law or fact.
c) 24(a) and (b) both require timely intervention: a judge will be more likely to let a party in at the outset of the suit versus
after judgment.
d) Can join either as ∏ or ∆ (Atlantis and Acme example).

51) Interpleader
a) Allows someone who has a piece of property/stake to which multiple parties have a claim to deposit the stake with the court,
who will join all possible claimants.
b) Claims against that stake are limited solely to the court it is deposited with.
c) Pure Interpleader: the ∏ is NOT a claimant to the stake.
d) “Bill in the nature of Interpleader”: The ∏ is also a claimant to the stake.
e) The stake must be truly limited: you can’t just pick an amount to deposit to limit your liability.
f) Statutory Interpleader
i) 1335: Gives subject matter jurisdiction over interpleader claims.
ii) Applies to instruments with a value over $500.
iii) Requires minimal diversity
(1) At least two of the claimants must be diverse. If the stakeholder is also a claimant he can be counted for diversity
purposes. Can be two ∆’s or ∏.
iv) 2361: Creates nationwide service of process for interpleader proceedings.
v) 1397: Venue for interpleader: Proper venue in any district where one or more of the claimants reside.
g) Rule Interpleader (Rule 22)
i) Requires complete diversity.
ii) Amount in controversy must be greater than $75,000.
iii) Must follow rule 4 for service of process.
iv) Follows the normal venue statute (1391).

52) 53) RULE 22 Interpleader 54) STATUTORY § 1335 Interpleader

56) Complete diversity – federal diversity and
55) SMJ <$75,000 57) Minimal Diversity - 2 claimants diverse, < $500

59) Rule 4 - ct limited by same as state where sits.

58) Service Personal jurisdiction rules apply. 60) Nationwide under § 2361

62) Subject to § 1391- where ∆ resides if all ∆’s from

same state or where substantial amt of events 63) May be brought in judicial district in which one
61) Venue took place. more of claimants reside. § 1397

65) USE: Great for pure interpleader –stakeholder

from one state, and all claimants from the same
stake. b/c the stakeholder is not a claimant, can’t
be minimal diversity for statutory interpleader.
Where stakeholder is from doesn’t matter; can’t
64) be counted for diversity purposes.
66) USE: Primarily used for “bill in the nature of
interpleader” –easier to get than Rule 22
interpleader.

67) Discovery Process

68) The process by which you obtain information by using the processes of the court to try your case.
a) 5 purposes of the discovery process
i) To discover and preserve information;
ii) To facilitate the framing of issues;
iii) To facilitate summary judgment;
iv) To facilitate settlement (the vast majority of cases do settle); and
v) To prevent unfair surprise.
b) Policies to keep in mind. Balance between:
i) Disclosure and Truth Finding; and
ii) Fairness and the adversary system
c) Rule 26: General Provisions of Discovery (7 Requirements)
i) 26(a): Required Disclosures (4 Requirements)
ii) 26(a)(1): Required Disclosures (5 Requirements)
(1) a) Name, address, and telephone number of individuals likely to have discoverable information that the disclosing
party may use to support claims or defenses;
 (2) b) A list of documents or records that may be used to support claims or defenses;
(3) c) Computation of damages claimed;
(4) d) Any applicable insurance information;
(5) e) These disclosures must be made within 14 days after the mandatory discovery process required by 26(f).
iii) 26(a)(2): Disclosure of expert testimony
(1) If you intend to use an expert witness at trial, you are required to disclose.
(2) Must disclose experts to be used at trial 90 days before trial
(3) Must disclose any books written in the last 10 years and any trials testified in the last 4 years.
iv) 26(a)(3): Pre-trial disclosures. You must disclose 30 days before trial:
(1) The name, address, and telephone number of each witness;
(2) Designation of witnesses whose testimony will be presented via deposition;
(3) Identification of documents or exhibits that will be submitted as evidence.
v) 26(a)(5): Methods of Discovery (You must request any information not required by 26a1):
(1) Depositions
(2) Interrogatories
(3) Production of documents or other tangible evidence.
(a) 34: Can only go to parties
(i) 34(c): Can be sent to non-parties, but must use a subpoena.
(b) If the document is in the hands of a non-party, you can use a subpoena to get it.
(4) Physical and Mental Examinations
(i) Requires a prior court order under Rule 35;
(ii) Can only be used on parties.
(iii) Considered the most invasive method of discovery.
(iv) Two part test to determine if an exam is warranted:
1. The physical or mental condition must be in controversy;
a. If the condition is not put into the pleadings, the plaintiff must show evidence or proof that the
defendant’s condition is in controversy.
2. The test must be in good cause.
a. This is a balancing test. The requesting party’s need for the info v. the intrusion on the privacy of
the other party.
(5) Requests for admission
(i) Asking the opponent to admit or deny certain things so that they can be taken out of contention.
1. If the party fails to deny it can be treated as an admission
vi) 26(b): Discovery Scope and Limits (3 Requirements)
vii) 26(b)(1): The Scope Test
(1) You are entitled to information:
(a) Relevant to the claim or defense of any party.
(i) This places importance on pleading, because the information you are entitled to depends on what you
plead.
(ii) If you want information relevant to the subject matter of the case (but not a claim or defense) you can still
get it though a petition to the court.
(b) You cannot get privileged material, because of The Work Product Privilege.
(c) Information must be reasonably calculated to lead to admissible evidence. Doesn’t have to be admissible in
itself. Ex. Hearsay.
viii) 26(b)(3): The Work Product Rule
(1) If documents are prepared in anticipation of litigation or for trial by the other party or their representative, you can
only get that information by making a special showing. This is a conditional privilege.
(a) The documents do not need to be prepared by a lawyer; rather it can be anyone such as the party, investigators,
etc.
(2) To overcome the work product privilege, you must show that:
(a) You have a substantial need for the information; and
(b) You cannot get the substantial equivalent of the information
(c) Without undue hardship.
(3) There is an absolute privilege for the mental impressions, conclusions, opinions, strategies or legal theories of the
attorney or other representatives of a party concerning the litigation.
ix) 26(b)(4): Expert Testimony and Work Product Privilege. Three categories of experts:
(1) 26(a)(2): Experts must be disclosed 90 days before trial
(a) Any books published in the last 10 years and cases testified in the last 4 years.
(2) Those expected to be used at trial
(a) You must disclose, and opponents may depose
(3) Those who are retained, but not expected to be used
 (a) Opponent can only get information through interrogatories or by depositions, or if the party can show special
circumstances
(4) Experts who are informally consulted
(a) Opponent gets no access at all.
x) 26(c): Protective orders
(1) Normally, you can do anything you want with information gained during discovery, unless a protective order is in
place.
(2) If you want a protective order, you must petition the court and demonstrate good cause for the order.
(3) There are a variety of ways this can be performed, such as requiring that discovery may only occur with certain
persons present, etc.
(4) Umbrella protective orders- Apply to all documents created during discovery.
xi) 26(d): Timing and Sequence of Discovery
(1) Parties can only begin discovery after they have met pursuant to 26(f).
xii) 26(e): Supplementation of Disclosures and Responses.
(1) There is a duty to supplement discovery requests, mandatory disclosures and responses or correct anything that has
changed that is wrong or incomplete.
xiii) 26(f): Conference of Parties; Planning for Discovery.
(1) The parties come together to determine the discovery.
xiv) 26(g): Signatures of Disclosures
(1) The rule 11 equivalent for discovery.
(2) All answers must be signed, truthful to the best of that person’s knowledge, and made in good faith.
(3) Discovery requests must also be signed and made in good faith.
xv) 27: Depositions Before Action or Pending Appeal
(1) Normally, can’t get deposition before a lawsuit. Can’t use federal gov’t to get info out of someone. Must file
complaint. BUT ---if need deposition before filing, if some dire circumstances exist for not filing yet, may petition
ct. Not easy.
(a) The court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice. To
perpetuate means to preserve from extinction or cause to last indefinitely. Perpetuating testimony is a means for
preserving the testimony of witness, which might otherwise be lost before the trial in which it is intended to be
used.
xvi) 28: Persons Before Whom Depositions May be Taken
(1) Requires that a deposition be taken before an officer authorized to administer oaths by the laws of the U.S. or of the
place where the examination is held.
xvii) 29: Stipulations Regarding Discovery Procedure
(1) Exceptions to the Discovery Process
xviii) 30: Depositions Upon Oral Examination
(1) Read by a lawyer
(a) Sworn witness testimony where both lawyers and a court reporter are present.
(b) Can be used with parties or non-parties
(i) You must issue a subpoena to a non-party with rule 45.
(ii) Very useful, but very expensive.
xix) 30(b)6 – way to depose a corporation when don’t know which officer  serve the corp, described the matter in
question, and corp will pick the officer to answer.
xx) 31: Depositions Upon Written Questions
(1) Written questions read by a reporter
xxi) 32: Use of Depositions in Court Proceedings
(1) Depositions may be used to impeach or contradict a witness (i.e. Negate their testimony)
(2) Can use as testimony if a party or witness cannot be present.
xxii) 33: Interrogatories of Parties
(1) Exception to hearsay rule. If want to introduce, must be favorable to self.
(a) Questions that you pose to other parties in writing. They’re largely answered with the help of attorneys in
writing.
(b) 30 days to answer
(2) Can only be sent to parties, cannot be used with non-parties.
(3) You may send up to 25 questions
xxiii) 34: Production of documents.
(1) 34(c) A person not a party to the action may be compelled to produce documents and things or to submit to an
inspection as provided in Rule 45.
xxiv) 35: Physical and Mental Examination of Persons
(1) You must get an order for the court before discovery takes place by showing that:
(a) You’re opponents physical or mental condition is in controversy
 (b) You have good cause. This is essentially a balancing test between:
(i) The need for information
(ii) The intrusiveness of the exam
(c) If you feel that an order is too intrusive, you can petition the court for a protective order under 26c.
(d) You can never be found in contempt if you refuse to submit to the exam, but the issue will be decided against
you.
(e) You can request a copy of the report of the examination, but the court may order you to hand over any medical
reports of your own.
(i) Balancing test –between how important is the info you need vs. intrusiveness and burden caused.
(ii) If refuse under rule 35 - assume opposite of conclusion favorable to party ---Rule 37 sanctions kick in. But
– can’t hold a person in contempt for refusing to submit to the exam.
xxv) Rule 36: Requests for Admission
(1) Requirement for admission –matters conclusively established –things not in contention.
(2) If a party admits to the evidence it is admitted, if it is denied.
(a) If the party says nothing, its admitted.
(b) Admission may not be used against a party in a subsequent proceeding.
(c) 30 days to answer a request for admission
xxvi) Rule 37: Failure to make or Cooperate in Discovery: Sanctions
(1) 37(a)(2)(b): If the deponent fails to answer a question, the discovering party may move for an order compelling
answer (the motion for an order must be made in good faith)
(2) 37(b)(1): If the deponent is ordered to answer and fails to do so, he can be held in contempt of court.
xxvii) Rule 45: Subpoenas
(1) Issued from the court for the district in which the hearing or trial is to be held.
(2) Purpose to reach non-party witnesses, or to compel the production of documents by non-parties.
(3) A subpoena can be served within the district where the case was brought, or any place without the district that is
within 100 miles of the place of deposition.

Summary Judgment
69) During discovery, it may appear that although the plaintiff has stated a valid claim, they are not going to be able to prove it.
a) As opposed to a 12(b)(6) motion to dismiss, which claims that there is failure to state a claim on which relief can be granted.
i) Does the law recognize this as a claim.
b) Not a decision about whether a party is right but whether there’s no issue of fact.
c) If evidence beyond the pleadings is introduced for a 12(c) motion, it would become a summary judgment motion.
70) The judge must look at the evidence in a light most favorable to the non-movant.
71) 56: Summary Judgment (4 Requirements)
72) 56(a): For Claimant
a) The party seeking to recover upon a claim, counterclaim, or cross claim or to obtain a declaratory judgment may, at any time
after 20 days from the commencement of the action (i.e. from the filing) or after service of a motion for S.J. by the adverse
party.
73) 56(b): For Defending Party
a) A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment is sought;
b) May, at any time, may at any time, move with or without supporting affidavits for a S.J.
74) 56(c): Motion and Proceedings Thereon
a) The Standard for Summary Judgment: If there is no genuine issue as to any material fact, the moving party is entitled to
judgment as a matter of law. Evidence must be considered in a light most favorable to the non-moving party.
i) Does not impede on 7th amendment rights to trial by jury, because it is an issue of law, not of fact that is to be decided.
ii) Partial Summary judgment can be granted if there is one issue in a claim where there is no dispute of fact.
iii) If there is a genuine issue of material fact the court must not grant summary judgment.
(1) The court cannot determine who to believe and who not to believe.
(2) If there is admissible evidence contradicting each other there cannot be summary judgment.
iv) Any evidence from discovery may be used to support motion. Must use enough to get you a directed verdict at trial, as
long as the other side is unable to dispute the evidence, then you’ve discharged your duty to support.
(1) Ex. ∏ attaches copy of K to prove there was a K. Could get a directed verdict on the existence of a K and then
response is triggered.
(2) Pleadings are not used because they are not under oath.
(a) However, if there are admissions in the pleadings they can be used.
75) 56(e): Form of Affidavits: Further Testimony; Defense Required
a) Two phases of the summary judgment
i) The Support Phase: The person who makes the motion must support the motion.
ii) The Response Phase: The other party must respond to the motion.
 iii) Burdens:
(1) Burden of proof at trial – either on ∆ for affirmative defenses or on ∏ to prove elements of claim.
(2) Burden of persuasion on summary judgment motion – always on movant to persuade that there is no material
issue of fact and the moving party is entitled to judgment as a matter of law.
(3) Burden of production – have to produce something to support the motion. This turns on whether you have the
burden of proof at trail. If, typically, make a motion of summary judgment on an issue that you don’t have burden of
proof on of trial, how do you show the burden of production? Pt out to the ct the lack of evidence in the record to
establish the other side’s claim. Don’t necessarily have to produce affirmative evidence of your own.
iv) How a motion is supported depends on who bears the burden of proof on the issue at trial:
(1) If the movant has the burden of proof on the issue at trial:
(a) Phase one: Support Phase: The movant must support the motion with enough credible evidence that would
warrant a directed verdict. If properly supported, triggers response phase.
(i) This makes it hard for plaintiffs in torts cases to move for summary judgment.
(b) Phase two: Response Phase: The non-movant must respond with evidence that shows a genuine issue of
material fact. Can’t just use pleadings or allegations. If this is met, the motion is denied. If they cannot show a
genuine issue of material fact, the motion is granted.
(2) If the non-moving party (Usually the plaintiff) has the burden of proof at trial:
(a) Phase one: Support Phase: The movant must support their motion by either evidence that negates the other
side’s claim (affirmatively negating the claim—ex. I was out of the country at the time of the incident),
(b) OR points out a lack of evidence in the record supporting the non-moving party’s claim.
(c) Phase two: Response Phase: Same as above—the non-movant must respond by showing a genuine issue of
material fact.
v) A federal district court should take a heightened burden of proof standard into consideration when deciding a motion for
summary judgment.
vi) Evidence – affidavits, depositions etc – must be admissible at trial. Witnesses for affidavits must be competent to testify
at trial. Must meet evidence rules. Judge is not supposed to weigh evidence or decide who’s right – just whether or not
there is a material issue of fact.

76) Relevant Cases

i) Adickes – needed to prove private store had power of state behind it denying her civil rights. ∆ files for summary
judgment. Failed to support its motion b/c they just denied the allegations. If ∆ had filed an affidavit that police weren’t
in store, instead of just denying the ultimate facts, then they would have been adequately supported. Triggers ∏ reaction
– must prove there WAS a police officer. Adickes seemed to say that in order for a movant to properly support motion –
must have evidence to negate possibility for ∏ to prove on theory.
ii) Celotex - Rehnquist said that the Court’s view was that the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial. The Court did not find an express or implied requirement in Rule 56 that the moving party support its motion
with affidavits or other similar materials negating the opponent’s claim. The Court said that if anything, Rule 56
suggests an absence of the requirement. Rule 56(a-b) provide that claimants and defendants, respectively, may move for
summary judgment with or without supporting affidavits. Celotex supported their motion for summary judgment by
showing that she did not answer the interrogatories. It supports its motion by stating there is nothing in the record to
show plaintiff had causation. Whether showing a lack of information in the record is sufficient support for summary
judgment? Celotex added another way to support a motion for S/J by pointing out the lack of evidence for the other side.
You have to inform the court of the lack of evidence on the other side. It can’t just be conclusory claim.
iii) Liberty Lobby – libel case. Must show that slander was with malice if public figure. Had to show that either writer knew
content was fault or acted in reckless disregard of the falsity. AND – have to prove by clear and convincing evidence vs.
preponderance of the evidence (∏’s version is more likely than not true). When a heightened pleading standard – should
that figure into the analysis of summary judgment? Supreme Court decides YES - judge must take into acct the higher
standard of proof when relevant. Need to use same standard as directed verdict. Would a reasonable jury find the non-
moving party using the heightened proof standard? If so, then there is an issue of fact & summary judgment denied.
Res Judicata
b) Res Judicata: the thing is decided; synonym for claim preclusion. Already litigated.
c) Stare Decisis: once a rule of law is decided in a case, it cannot be changed by later cases unless there are special
circumstances.
d) The law of the case: if a law is interpreted in a certain way in a case, and the ruling is later overturned on other grounds, the
interpretation of the law still holds. Policy – important for predictability in rule of law.
e) The policies behind this are the “finality of judgment.” People have to be able to rely on judgments. If the courts reopen
cases it undermines the confidence in the system.
f) Claim preclusion: Once a transaction has been litigated between two parties, they are finished with that transaction. All
claims arising out of a single transaction are final and can be litigated only once, if the case produces a valid judgment.
i) Older terms for claim preclusion:
(1) Merger: When a ∏ wins a judgment, all claims arising out of that transaction are said to have merged into that
judgment. All the rights the ∏ had with regard to a particular claim merged into the win for ∏.
(2) Bar: If a ∆ wins, the judgment for the ∆ is said to bar the ∏ from bringing any other claims arising out of that
transaction against the ∆.
(3) Claim Splitting: is not allowed. Any claim arising out of the same transaction against that defendant must be
brought in the initial lawsuit, or lost forever.
ii) Requirements for claim preclusion (Must have all 3):
(1) A prior judgment that is:
(a) Final;
(i) At the trial court level…so even if on appeal, still conclusive
(ii) Disposes of the whole case on its merits, by rendering final judgment not only as to all the parties, but as to
all causes of action involved.
(b) Valid; and
(i) Proper subject matter jurisdiction
(c) On the merits.
(i) All judgments are deemed on the merits unless they were dismissed based on improper venue, lack of
jurisdiction, or failure to join an indispensable party.
(2) The parties in suit one must be the same as or in privity with the parties in suit two.
(a) Parties in privity have some sort of legal or contractual relationship; (ex. child can’t sue again for parent).
(b) It must be the same plaintiffs and same defendants.
(3) The claim in suit 2 must be within the scope of the prior judgment.
(a) “Transaction” Test. CNOF. The scope of what you can bring is the same scope as arising out of the same
transaction.
(i) The rights of different plaintiffs to relief arising out of a single incident are not considered one “claim”
simply because they arise out of the same transaction or occurrence.
(ii) Every potential plaintiff who suffers injury from a transaction or occurrence has a distinct claim for res
judicata purposes.
(b) Must bring all claims from the same factual circumstances against a single ∆, or they are barred whether they
were actually litigated or not.
(i) Primary rights theory: There is a different claim for each right invaded?
1. Personal injuries and property damages are different.
iii) Relevant Cases
(1) Rush v. Maple Heights - ∏ tried to split her claims arising out of a single accident. One was for recovery of
property, one was for personal injury. Holding – cannot split claims b/c there was a valid, final, meritorious final
judgment, same parties, and was within the scope of the prior suit. All claims should have been brought in the first
suit. Ct rejected precedent and stare decisis. Limited and not absolute b/c later parties can always argue that an
earlier rule should be overruled or modified.
(a) Res Judicata –application of law to facts. Stare Decisis – application of facts to a law, precedent.
 (b) Ct adopts the transaction test.
(2) Mathews - ∏ motioned for summary judgment b/c ∏ had earlier brought a suit against ∆’s employees.
Theories/claims of first suit – assault and libel. Second claim – false imprisonment, etc. Changed legal theories from
suit #1 to #2. But, he should be precluded b/c the claims were based on the same facts. Scope test is based on factual
occurrence not legal theories from first suit. All claims out of that transaction have to be brought in the first case the
∏ brings. Use it or lose it. Claim Preclusion is to ∏ as compulsory counterclaims is to ∆. If not brought a party
loses right to ever bring it again.
iv) The Rule of Accumulated breaches: you must sue for all money due up to the date that the lawsuit is filed. All the
rights the ∏ has up to the date filed must be included in the lawsuit.
(1) If a breach happens after the suit you don’t have to bring it, but you may amend the pleading (FRCP 15).
(2) Jones v. Morris Plan - #2 lawsuit is buyer’s lawsuit against bank for conversion (tort form of stealing), which Jones
says he owns. #1 lawsuit was by seller against buyer for not making 2 payments. Based on acceleration clause –
when a payment is missed, the entire note becomes due. So in #1 claim, seller had a claim for the entire amount of
the note due but failed to bring it. Therefore, any rights the bank had merged into the judgment from case 1 where
the judgments were given for the 2 payments. The title then cast to the buyer and buyer wasn’t liable for any more
payments.
g) Issue Preclusion (a.k.a. Collateral Estoppel): Once a particular issue within a claim has been fully litigated and decided
between two parties, then that issue cannot be re-tried.
i) Only focuses on issues actually litigated. Stricter about application b/c broader. Basically, you are exporting a finding
of fact from case 1 to case 2. Policy is to avoid inconsistency. Avoid exporting an error. If believe an issue did not get
proper attention (i.e. was not necessary to case, wasn’t actually litigated, etc), will not be precluded.
ii) Differs from claim preclusion because: the reach is broader, because issues can re-occur in many different cases,
therefore, there are stricter requirements for invoking.
iii) Necessary Prerequisites for Collateral Estoppel/Issue Preclusion (Note these are always necessary, but may not
always be sufficient).
(1) Judgment in Suit #1 is:
(a) Final;
(i) At the trial court.
(ii) Disposes of the whole case on its merits, by rendering final judgment not only as to all the parties, but as to
all causes of action involved.
(b) Valid; and
(i) Proper subject matter jurisdiction
(c) On the Merits
(d) Doesn’t have to be on the merits if it is a procedural issue.
(e) All judgments are deemed on the merits unless they were dismissed based on improper venue, lack of
jurisdiction, or failure to join an indispensable party.
(2) The issue to be precluded in case 2 must be the same as the issue in case 1.
(a) This rule allows manipulation by lawyers, in that you can make an issue broad (allow preclusion) or narrow (not
allow preclusion) depending on what we need.
(b) Characterizing the issue can make or break whether or not there is preclusive effect. This requires that:
(c) The issue was actually litigated
(i) Look at jury instructions; trial transcripts
(ii) Majority view says that the issue must have actually been contested, not just pleaded, but a minority says
that appearance in the pleadings is sufficient.
(iii) If an issue is stipulated (agreed to), but not litigated, then the view is that it was NOT actually
litigated. Incentive argument –if a party knew it could come back to hurt them, they would never stipulate.
To encourage parties to settle, stipulations aren’t precluded. No evidence presented to factfinder.
(iv) Default judgments also DO NOT count as being actually litigated. B/c no evidence presented to a
factfinder.
(v) An issue decided by summary judgment may be considered actually litigated.
(vi) Controversy about whether when an issue is abandoned, should party be estopped from brining issue up
later. Why would it be brought up and abandoned unless it was weak. Moves it toward claim preclusion –
where an issue is precluded b/c it could have been brought. Argue that no evidence presented to fact finder.
(d) The issue must actually be decided
(i) If there is a general verdict, whether the issue was decided depends on the case.
(ii) Example: when ∏ sues defendant for negligence, the ∆ may raise a defense of contributory negligence. If
∆ wins, the court could have concluded either that ∆ was not negligent or the ∏ was contributorily
negligent. If they found for the ∏, you would definitely know that the defendant was negligent, so there
would be issue preclusion on that issue.
 1. Cost of preclusion may be very high b/c may export an error, but cost of not using preclusion is very
high – just efficiency and relitigation.
2. Could use a special verdict – where issues are determined separately by jury.
(e) The issue to be precluded must have been necessary to the judgment in suit one
(i) Alternative holdings of law- Restatements- If there are alternative holdings of law each supporting the
verdict, neither will give preclusive effect. (Russell v. Place)
1. Courts feel that alternative holdings will not give either issue proper attention.
(ii) Even if in the example above, if the court said that ∆ and ∏ were both negligent, you could not use the
negligence finding against the ∆, because the prior judgment was in his favor, so he had no right to appeal.
(iii) Majority rule - if both issues go against the loser in case 1, (so has a chance to appeal), then
winner is estopped from using either issue in case 2 to get summary judgment or verdict. Because both
findings would suffice, neither can be used.
1. Russell v. Place – Suit 1 - Can’t tell which claim for patent ∆ was infringing b/c jury rendered a
general verdict. Suit 2 – Russell tried to use suit #1 judgment on infringement. Continued actions
happened after first suit concluded. Repeated conduct; not same transaction so not claim preclusion. If
you can’t tell whether the issue was actually decided by the factfinder in case 1, then can’t be
precluded in case 2. Result is just that you need to litigate it in suit 2. MAJORITY RULE.
(iv) Minority view – should allow to use holdings to avoid relitigation.
1. Kelley v. Curtiss – Contributory negligence. Based on traditional rule that if ∏ sued for negligence, if
∆ could show that ∏ contributed negligence to the cause, it was a complete bar and ∏ loses. In Kelley
– went for ∆ in case 1, if later ∆ sues ∏ and issue is whether ∆ can collaterally estop the ∏ on the issue
of the ∆’s negligence. Court held that where there is a general verdict – if can’t tell grounds it was
issued on – both issues are precluded and in ∆’s favor. MINORITY RULE.
(v) Rios v. Davis, Pg. 1142
1. The sole basis for the judgment as between Rios and Davis was the findings concerning the negligence
of Davis. The finding that Rios was negligent was not essential or material to the judgment and the
judgment was not based thereon.
2. It is the judgment, and not the verdict or the conclusions of fact, filed by a trial court which constitutes
estoppel, and a finding of fact by a jury or a court which does not become the basis or one of the
grounds of the judgment rendered is not conclusive against either party to the suit.
3. Even though the jury gave a special verdict, certain issues were not given preclusive effect because the
outcome did not depend upon those findings.
iv) Mutuality: who can be bound by, and who can benefit from issue preclusion
(1) Traditional rule of mutuality: Unless you are bound by a judgment, you cannot benefit from the judgment. In other
words a party can only benefit if they would have been bound had the issue gone the other way. This is still the law
in some states. Only parties to the lawsuit can be bound (Pennoyer). At this pt – we have already gone through the
other prongs of issue preclusion analysis, now we are deciding who can invoke and be bound by issue preclusion
(a) If suit 1 is A v. B and A loses and suit 2 is A v. C, C cannot preclude A based on the loss in suit 1. C was not
bound by the judgment.
(b) Fleming – Case 1 sues contractor working for city and ∏ loses. Case 2, sues city. Can city collaterally estop ∏
on issue of lack of negligence? Based on mutuality – NO – city can’t benefit from contractor’s win in case 1.
But – ct allows preclusion b/c of indemnification relationship…makes exception to the mutuality rule. Would
have undone the first decision.
(i) Indemnification relationship-
(2) Modern rule: (from Bernhard) the party to be bound in suit two must have fully and fairly litigated the issue in suit
one.
(a) “Fairly” allows judges to disallow estoppel if they feel that it would lead to an unjust result.
(b) The estopped party must have been a party in the first suit and therefore had his chance to litigate the issue.
(c) Bernhard v. BOA – Suit 1: ct determined that $ was meant to be a gift to Cook. Bernhard loses. Suit 2: Bernhard
sues Bank. If apply rule of mutuality, Bank can’t b/c not a party to suit 1. Traynor creates new rule – and new
way to articulate benefit/bound by issue preclusion is determined. Don’t have to have the same parties as long
as the party to be bound (the one issue preclusion is being used against) was a party in the prior suit.
Makes it easier to use issue preclusion.
(d) Defensive Non-Mutual Collateral Estoppel: when a different defendant is using a prior judgment to defend
against the same plaintiff. (Ex. If it is found that a company has an invalid patent in one suit, another company
could use that as a defense if the same company in suit one brought a claim against them for patent
infringement).
(i) Defensive because the defendant is using issue preclusion against a plaintiff who has switched adversaries.
 (ii) Blonder-Tongue –Suit 1: U of IL sues ∆ and loses on whether or not patent was valid. Suit 2: U of IL sues
BT. Same issue against a different adversary. Can Blonder-Tongue use earlier win? No under rule of
mutuality, but can under Bernhard. Abandons mutuality rule for federal court system. Diff from Bernhard
– asks whether person against whom issue preclusion is being used against had a fair opportunity to
litigate. More latitude. So, even if a party meets the test for issue preclusion, it is still possible to be
defeated if it was unfair to apply it. Defensive non-mutual collateral estoppel.
(iii) The burden to establish that the issue was fully litigated falls on the party invoking collateral estoppel.
(e) Offensive Non-Mutual Collateral Estoppel: when a different ∏ is trying to utilize a past judgment against the
same ∆. It can happen if it is fair.
(i) Decided in Parklane Hosiery v. Shore—this is where the Supreme Court truly abandoned the Mutuality
requirement.
1. Did Defendant have a full and fair opportunity to litigate in the original case?
2. Could Plaintiff have joined in the original case?
a. This eliminates the “Wait and See” parties.
3. Could Defendant foresee multiple suits?
4. Were there inconsistent judgments?
a. Strategy for defendant would be to settle strong cases, and litigate the weak ones
5. Was forum in suit 1 highly inconvenient?
a. Doesn’t matter for defensive CE b/c in that case ∏ got to pick forum.
6. Did Defendant have a reason to litigate effectively?
a. If stakes were low in suit 1 and high in suit 2, unfair to bind to decision in suit 1.
7. Were there very different proceedings/burden of proof? (administrative hearing vs. full trial).
a. Burden of Proof issues: higher burden of proof for criminal trials, so you can use a criminal
verdict in civil trial, but not vice versa.
(ii) Parklane Hosiery – Suit 1: ∏ (SEC) v. Parklane ∆, Parklane loses. Suit 2: Shore (∏ 2) moves for summary
judgment based on finding against Parklane in Suit 1. Shore argued ∆ should be collaterally estopped from
arguing it hadn’t made false statements b/c the ct in Suit 1 found that it did make false statements. Meets
the test for issue preclusion ---and Parklane had full and fair chance to litigate in suit 1. Ct is worried and
says different from Blonder Tongue where preclusion was defensive b/c issue preclusion is being used
offensively in Parklane. Ct wants to look at factors. Parklane knew of the seriousness of the claims and that
subsequent litigation was going to arise, thus they should have prepared full boar for the case. Second, the
judgment in the SEC action was not inconsistent with any other action. Finally, there weren’t any
procedural remedies available to Parklane in the first that would not be available in the second that would
cause a different result.

77) Jury Trials

78) The 7th amendment (ratified 1791) (Only applies to civil cases in federal court)
a) 1st Clause: Preservation Clause: Preserves the right to trial by jury. This means that all analysis must be evaluated from a
1791 viewpoint.
b) 2nd Clause: The Re-examination Clause: A fact tried by jury may not be otherwise re-examined other than according to the
rules of common law.
c) Preserves the right to a jury trial at law but not equity:
i) The difference b/t law and equity is the remedy;
ii) The principal law remedy is money;
iii) The principal equity remedy is an injunction for someone to do something.
d) The right to a jury trial.
i) Derived through
(1) The Constitution
(a) This is the main source of the right, therefore analysis is mainly historical.
(2) Statutes (ex. Those dealing with employment discrimination)
(3) Discretion of the Judge
ii) Under rule 38, you must demand your right to a jury trial, but the judge may order a jury trial without a request, 39
iii) Law and Equity
(1) Historically, two separate court systems
(2) Law Courts: To go to a law court, your case had to fit into a claim of action (contract, a category of torts, etc.). Law
courts provided for a jury trial
(3) Equity Courts: Cases were decided by a judge/chancellor, not a jury.
(a) You could only go to equity if you didn’t have an adequate remedy at law
(b) If you wanted any sort of non-monetary claim, such as an injunction, you had to go to equity.
 (c) The equitable clean-up doctrine: In a case where you had a mix of law and equity claims, when the equity court
had proper jurisdiction over the equity claims, it could also decide the legal claims.
(4) Law and Equity merged in 1939, when the FRCP were passed. However, the right to jury trial still only
applies to law claims.
(5) However, the equitable clean up doctrine no longer applies. Rule: When you have a mixed bag of legal and
equitable claims, the legal claims must first be tried to a jury, and then the judge “cleans up” any remaining
equitable issues. Beacon Theaters.
(6) How do you tell if claims are legal or equitable?
(a) When you have two claims that appear to be equitable, but one is in essence a claim for monetary damages, the
defendant does have a right to a jury trial, and that claim must be tried first.
(b) Test to tell if an action is legal or equitable (Ross v. Bernard)
(i) Consider the pre-merger custom with reference to such questions:
1. The remedy sought
2. The practical limitations and abilities of jurors
a. In the 3rd circuit, you can argue that it could be a violation of your due process rights to send a
highly technical case to the jury.
(c) Beacon: Reverses Equitable Clean-Up Doctrine: RULE: When have a mixed bag of equitable and legal
issues in same case; try legal issues first before a jury, then let judge handle equitable issues. So in
Beacon, damages will be tried first, and depending on how it comes out, then judge decides whether an
injunction is needed.
79) Who is on the jury?
a) Court clerk assembles a list of the jury
b) Venire- Jury Pool
c) Petit Jury- The actual jury. It can be 6-12 jurors. The petit jury is narrowed from the Venire.
d) Voir dire: The potential jurors are asked questions to determine if there is any bias or prejudice.
i) Striking for cause: Attorneys can move to strike jurors for cause if they appear to be so prejudiced that they couldn’t
give a fair verdict.
(1) You get an unlimited number
(2) Judge makes the final decision, and these are very hard to get, especially if the judge asks a curative question.
(a) Ex: You’re hatred of people who wear shoes isn’t going to prejudice you in this case, is it?
(3) Bias: An inclination toward one side of an issue or another, but to disqualify, it must appear that the state of mind of
the juror leads to the natural inference that he will not or did not act with impartialty.
(4) Prejudice: Prejudgment of the case.
(5) Flowers: Should a juror who claims she cannot award custody to one parent if it is shown the mother drank be
struck for cause?
ii) Peremptory Challenges: striking a juror for any reason at all, except race or gender
(1) Attorneys only get a limited number of these
(2) Peremptory Challenges are not allowed on the basis of race or gender
(a) This is seen as a violation of the equal protection clause, and also of due process
(b) Batson Challenge: challenge the attorneys to give a race neutral reason as to why they struck the juror.
e) Although the equal protection clause technically only applies to the government, but it is seen to violate your equal protection
rights as a citizen if an attorney, acting as an agent for the government, denies your right to serve on a jury.
80) Rule 50: Judgment as a matter of law. (Jury control) Encompasses old ideas of:
a) Directed Verdict (now JML pre-verdict 50(a)(1)): Standard is that no reasonable jury could find for the non-moving party
even if you consider all the evidence in the light most favorable to the non-moving party. (Similar to summary judgment,
which states that there is no genuine issue of fact).
i) The directed verdict motion of weighing the evidence is seen to be a legal issue. (Sufficiency of evidence is a matter of
law)
b) Judgment Notwithstanding the Verdict. (JNOV) (now jml post-verdict, 50(b)): Can be granted if the judge believes that
the judgment was unreasonable. (Involves the second half of the re-examination clause).
i) Under 50(b), this is seen as renewing the motion for judgment as matter of law post verdict.
(1) If a judgment of matter of law (DV) not granted, which means it’s denied, when it’s submitted to the jury, the
judge’s right to renew the JML as JNOV is reserved. Codifies Redman. By definition DV is made and issue is
reserved until after jury’s verdict. Only way to get around 7th Amendment is to treat the DV as reserved when it’s
made. Must make DV motion in order to make JNOV motion.
ii) It is basically a reserved directed verdict motion (this is how they skirted 7th amendment issues of re-examining a
verdict). Therefore, to make a JNOV motion, you must make a directed verdict motion pre-judgment (at close of all
the evidence…sometimes means both ∏ and ∆’s evidence).
 iii) Efficiency wise, JNOV’s are much more efficient than directed verdicts, because if the motion is overturned on appeal,
there is already a valid jury verdict. Implicates the re-examination part of the 7th Amendment.
81) Rule 59: New Trials
a) Standard for a New Trial: The verdict was against the weight of the evidence. This is highly discretionary.
i) Can consider: the credibility of the witness, etc.
ii) The possibility of error: Harmless error (wouldn’t affect appeal) and reversible error (would result in a new trial on
appeal)—the discretion for a new trial is located somewhere between these two points. Almost complete discretion. In a
new trial – no final judgment and can’t take an appeal.
iii) Pretty much played entirely in the trial court: if the motion is granted, case is still at trial court level, and is not
reviewable. Lots of discretion. If it is denied, the standard of appellate review is abuse of discretion.
b) Conditional and Partial New Trials
i) Remittitur: An order denying a ∆’s motion for a new trial on the condition that the ∏ consents to a specified reduction
in the jury award.
(1) Majority rule for setting amount: Whatever the court sees as reasonable.
(2) In some states, standard is the lowest amount the jury could have reasonably returned. This greatly reduces the
willingness of ∏’s to accept remittitur.
(3) Remittitur IS allowed by the federal courts, because it is within the scope of the jury verdict.
ii) Additur: an order denying ∏’s motion for a new trial, on the condition that the ∆ consent to a specified reduction in the
jury award.
(1) NOT allowed by the federal courts, because you would be adding to the jury verdict.
82) Aetna Casualty –New Trial: insurance sued Yeatts for declaratory judgment that they did not owe coverage for his performing
illegal abortions. RULE – a federal trial judge may set aside a jury verdict and grant a new trial where he finds the verdict is 1)
contrary to the weight of evidence or 2) based on false evidence. Couldn’t have a JNOV b/c he didn’t motion for a directed
verdict. Don’t need to filed for directed verdict to get a new trial. Discussion of difference in standard b/t directed verdict and new
trial. P. 1097.
a) For new trial – judge will weigh the evidence and decide if verdict is against the weight. Might take into acct strength of the
witness, credibility, etc. 13th juror. Different from JNOV or DV  judge’s mindset must be whether a reasonable jury would
find for the other side. New trial is more intrusive into the jury trial right, but less intrusive to the institution b/c the case will
be heard before a new jury. Credibility shouldn’t come into play with DV, but does in new trial. Disincentive to go against
jury is efficiency.
83) Fischer – Additur Case: Rule – it’s within the discretion of the ct to employ practices of remittitur & additur by which denials of
one’s motion for new trial is condition upon opposing party’s consent to a reduction or increase in amount of damages awarded.
7th Amendment doesn’t apply to states; state constitution.