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I. Pleadings
A. Notice Pleading
Purpose: to focus court’s attention on what is actually in dispute
Rule 4: Summons
• 4c1 – Summons is served w/ a copy of the complaint; 4c2 – anyone over 18 years of age who is not a party can serve
it.
• 4d: Waiver of Service
o 4d1 – Waiver of service of summons does NOT thereby waive any objection to the venue or personal
jurisdiction
o 4d2 -- ∆ has a duty to avoid unnecessary costs of serving the summons. Π s can notify them (officially in
writing) & ask to waive service.
If ∆ fails to comply w/ request for waiver, ct can impose fees or serving unless good cause is
shown.
o 4d3 – if ∆ timely returns waiver before being served, he has 60 days after request for waiver was sent to
reply to the complaint (90 if outside US)
• 4e-g: Service in US, foreign country, on incompetents/infants
• 4h: Service on corporations
• 4k: Territorial Limits for Effective Service
o 4k1: Service of a summons is effective to establish jurisdiction over the person of a ∆
(A) who could be subjected to the jurisdiction of a [state trial court] in the state in which the district
ct is located
• Basically – federal ct PJ should be same as state PJ of the state they’re in
o 4k2: If the exercise of the jurisdiction is consistent with the Constitution/US law, serving a summons or filing
a waiver of service is also effective, with respect to claims arising under federal law, to establish PJ over the
person of any ∆ who is not subject to the jurisdiction of the cts of general J of any state.
To invoke 4k2: Π must make prima facie case for applicability. Fed law claim; PJ not available via
federal statute; ∆ ’s contacts with US as a whole are sufficient for MC w/ the US; and according to
current info, ∆ not subject to suit in the cts of Gen J of any state.
Burden-shifting here via case law – if ∆ doesn’t like this, he has to name a state where it CAN
proceed.
• 4m: Timing – summons and complaint must be served on ∆ within 120 days of filing the complaint, or the action
may be dismissed (if Π fails to show good cause for the delay).
Key Cases: The precedent for “short/plain only” is there, but federal courts do carve out exceptions.
• Conley v. Gibson (SC, 1957) – Union tried to claim a 12b6 violation because of not enough “specific facts.” SC says
Rule 8(a)’s “short and plain statement of facts” standard means what it says. SC also says 12b6 doesn’t apply
unless “beyond doubt that plaintiff can prove no set of facts in support of claim that would entitle him to
relief.”
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• Leatherman v. Tarrant (SC, 1992) – Upholds Conley. Federal courts may not apply “heightened pleading standards”
except under 9b (fraud/mistake) or via amendment of Federal Rules.
• Swierkiewicz v. Sorema (SC, 2002) – Upholds Conley line. TC said Sw. didn’t meet pleading standard of facts ->
prima facie discrimination case. SC says that’s not necessary – 8a applies.
• Dura Pharmaceuticals v. Broudo (SC, 2005) – Upholds Conley line but distinguishes details of this case (loss
causation alleged, but they failed to properly allege an element – economic loss – which doesn’t give Dura “fair
notice”). 12b6 stands here because, when there are elements to a cause of action, you have to properly allege all
of them. Class action is a big issue here on whether what they alleged counts as “loss,” since no common experience.
o Loss causation element wasn’t discussed specifically enough.
o PSLRA doesn’t apply here, nor Rule 9. Sounds like there should be some heightened pleading standard
triggered here. Ct at end says “we assume that Rule 8 is the governing rule here.”
o So what impact does Dura have on other cases? Could heighten pleading standard in future securities cases to
which the PSLRA/rule 9 don’t apply. “Rule 8 Securities Cases”
Signals a general desire by the court to tighten pleading requirements generally.
But – it’s hard to believe that that’s really true – ct just reaffirmed Conley in 02! Why do a 180 just
3 years later.
Also, wasn’t there something unique about the facts here that you can’t really apply to other cases?
This is a stock loss case – everyone sold at different times, so you’d have to calculate all their losses
differently! Π s are trying to make the class certification easier. There was an overlap between
class certification and pleading in Dura. So if you have a case with just ONE Π , Dura probably
won’t affect you.
B. Preanswer/Answer Motions
Rules 8b, 8c, 8d: Responses to pleadings
• D must state in S/P terms its defenses to each claim, and must admit or deny every averment. (8b)
• Three options for response:
o Admit – not discussed any more bc it’s not in dispute.
o Deny – highlights this as an issue in dispute.
o Effectively deny – claim to be without knowledge sufficient at the time to form a belief as to the truth of the
averment.
Rule 11 requires us to update once we DO know, but if we don’t know, that’s ok – it will get
handled at trial.
Would amend this under Rule 15a.
• If you deny an averment/paragraph, you are denying EVERYTHING in the paragraph. If you only wish to deny part
of it, you must specify that out.
• If an averment or part of an averment is true, you have an obligation not to deny it. Answers must be made in good
faith.
• Affirmative defenses must be included in the responsive pleading. (8c) If you don’t include them in your answer, you
waive them. Can’t argue them later.
• Failure to respond to a pleading (to which a responsive pleading is required) is taken as an admission. (8d)
Motions to Dismiss
Rules 12b – h: Defenses and Objections
• 12b1-7 defenses may be included in responsive pleading OR made by motion.
o A motion making any of these defenses must be made before pleading if a further pleading is permitted (12b)
o Preanswer motions can be very helpful, because if you win, you never have to answer!
o These apply to initial claims as well as responses to counterclaims, cross-claims, etc.
o Some of the 12b motions are immediately fatal to the plaintiff’s case:
12b1 Lack of SMJ
12b2 Lack of PJ
12b3 Improper Venue
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o Others attack defects in the procedure by which Π has raised the action:
12b4 Insufficiency of Process – adequacy of the summons itself (Rule 4a)
• for example, the clerk didn’t sign it
12b5 Insufficiency of Svc of Process – manner in which the complaint and summons were delivered
to the ∆ .
12b7 Failure to Join Indispensable Party
o And 12b6 is special – it challenges the substantive merits of the complaint.
12b6 is akin to the “fatal” 12b1-3, in that it can lead to dismissal if upheld, BUT
Π s usually get at least 1 chance to amend complaint (if that’s possible bc it’s just a mistake, not a
lack of appropriate facts)
o Must be consolidated under 12g – can’t make them piecemeal – unless the information was not “then
available” to the party
THIS PROBABLY INCLUDES 12e too! “Under this rule.”
“Least-favored defenses” (12h1) – Lack of jurisdiction over the person, improper venue,
insufficiency of process, or insufficiency of service of process are waived if omitted from a previous
motion as in 12g, OR if not made by motion or included in responsive pleading/amendment “as a
matter of course” under 15a – meaning before it is served, or once w/in 20 days after being served.
(No special permission from court, etc)
• Rationale: If ∆ has suffered any prejudice from these preliminary defects, she should be
able to tell that right away, from the complaint itself!
“More favored defenses” (12h2) – 12b6, 12b7, objection of failure to state a legal defense – if
omitted under 12g, can be made in any pleading, by motion for judgment on the pleadings, or at the
trial on the merits.
• Rationale: these things may not always be easy to determine at the outset
12h3 – Lack of jurisdiction over subject matter can be motioned ANYTIME.
• 12c is our mechanism to file motion for judgment on the pleadings (after pleadings but before discovery, etc). It
may be used as a delayed motion to dismiss – challenge to the sufficiency of the complaint standing alone – or as a
challenge to the sufficiency of the complaint in light of particular defenses raised in the answer.
o If you make this motion and then the judge has to consider anything outside the pleadings – i.e. evidence – it
gets treated as a Rule 56 motion for summary judgment.
• 12e – motion for more definite statement – to be made before answering a pleading, if it’s so vague and ambiguous
that a party cannot reasonably be required to frame a responsive pleading.
o Results in an amended pleading (from P), within 10 days, if granted.
o When you make a 12e motion, you have to ALSO make any least-favored defense motions you plan to
make! Rationale is that lack of jurisdiction, venue or process are things you should know even if the
complaint itself isn’t very clear.
You certainly could make a 12b6 after getting an amended complaint from a 12e, because you may
not have been able to tell that their claim can’t succeed at the time.
C. Certifications/Sanctions
Rule 11: Signing of pleadings; sanctions
• Applies to all motions and pleadings, except discovery (covered under later rules).
• Sets up standards of behavior for counsel under 11b – not presenting facts/cases for improper purposes, claims are
warranted by existing law or a change is needed in existing law, allegations have evidentiary support or are likely to,
denials are warranted on evidence.
• 11b – By presenting to the court a pleading, written motion or other paper, an attorney is certifying that to the best of
their knowledge, formed after an inquiry reasonable under the circumstances:
o not being presented for improper purpose
o claims/defenses/legal contentions are warranted by existing law, or non-frivolous argument for a change in
law
o allegations/factual contentions have evidentiary support (or if specifically so ID’d, are likely to after reas.
opportunity for further investigation)
o denials of fact are warranted on the evidence (or if specifically so ID’d, are likely to be after reas. opportunity
for further investigation)
• Counsel or court can file Rule 11 motion about other side’s behavior – 11c1a/b
• Sanctions: nonmonetary (injunctions, etc); monetary paid to court (fees/fines); monetary paid to movant (only to
deter, as per 11c2; usu. to reimburse for extra expenses). Court has discretion – “court may impose” in 11c.
o Sanctions motions must be made by themselves. But you can make other motions at the same time.
• Safe Harbor – 11c1a – after a Rule 11 motion is filed, other side has 21 days to fix the problem. DOES NOT freeze
the case.
o If you want to move for sanctions AND dismissal, what order?
o Move for sanctions first -- ∆ has 21 days to cure.
o If the judge grants a DISMISSAL first, there’s nothing to cure/withdraw/etc and nothing on which they can
get sanctioned!
• 11b3 – parties can allege facts that are “likely to have evidentiary support,” i.e. discovery will bear out the allegations.
• But, parties have obligation to keep allegations up to date if the evidence does NOT support the allegations.
Continuing obligation to update facts of case.
• Allows sanctions on law firms for actions of employees.
D. Amendments
Rule 15: Amended and Supplemental Pleadings
15(a): Amending a pleading
• Party may amend pleadings as a matter of course:
o anytime before responsive pleading is served, or
o w/in 20 days after it is served.
• Outside of “matter of course” amendments, party can amend by leave of court or other party; “leave shall be freely
given when justice so requires.” (May fail if what you are doing will cause delay + prejudice)
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15(c): Relation back of amendments
• First, you must pass 15a – have to be allowed to amend it at all!
• You wouldn’t have to worry about 15c if you don’t have a statute of limitations issue
• 15c is the “magic potion” that resuscitates what would be a dead claim via stat/lim. If certain criteria are met,
amendment of pleading can relate back to date of original pleading
o 15c1:
Relation back is permitted by law that provides the stat/lim – if a state rule applies and is more
potent, use the law.
Make sure it CAN relate back.
If state law is more permissive, follow it.
o 15c2 (New claim):
Claim arose out of “conduct/trans./occ” set forth/attempted to be set forth in orig. pleading
Must have “common core of operative facts,” be factually/temporally related
Actually pretty permissive for most cases, if facts are actually related.
Competing goals – liberal amendment standard in interest of protecting Π s w/ valid claims, vs. the
fact that this is an end-run around the stat/lim laws, so you don’t want to be too liberal.
o 15c3 (New party):
C2 must be satisfied.
Much stricter than C2 standard, because the new party will be completely behind.
(A) Within 120 days, party received notice of action, AND the notice was such so that they will not
be prejudiced in maintaining a defense.
• Notice can be informal, such as a conversation, internal memo, etc.
(B) They knew or should have known that, but for Π ’s mistake, they would have been included in
the suit.
• “Mistake” is very narrow and often does not include “John Doe” cases, i.e. where you
know a “police officer” did it but didn’t see name tag
Key 15c cases:
• Swartz v. Gold Dust (1981) C3 case – it’s ok to use a John Doe placeholder if you intend to find out specifically
who it is during discovery; reads “mistake” liberally (omitting ∆ who may be liable for actionable conduct =
mistake); notice does not have to be formal; negligent construction or negligent maintenance are different
breaches of the same duty – only one injury, so relatable back; for new ∆ s, specific prejudice must be
shown, not just that “it’s later now”; one injury = one occurrence
• Singletary v. Penn. Dept. of Corrections (2001) C3 case -- Π cannot add Regan (jail psych) as new ∆
because A) no notice w/in 120 days and B) no reason for him to have known he’d be included in suit “but for
mistake.” Court rejects “shared atty” and “identity of interest” because non-mgmt employees can’t
automatically be imputed to share interest w/ employer. Court discusses sufficiency of replacing a “John
Doe” entry as “mistake”; usually not knowing name is not sufficient to establish mistake – here, it’s not
because JD referred to “unknown correctional officer” and Regan is a psych
• Mayle v. Felix (Supreme Ct., 2005) C2 case -- Π cannot add new claim (5th Am.) because it is not from
“common core of operative facts” as first claim (6th Am.), which was timely. Rejects 9th Circ. interp. that the
same trial/conviction can count as the “conduct/transaction/occurrence” – too broad. Wants to support
Congress’s goal in implementing the habeas stat/lim statute.
o ****An amendment offered to clarify or amplify the facts already alleged in support of a timely
claim may relate back. (New legal theory based on different facts – no.)
o Cites Tiller v. Atlantic Coast Line, in which widow could add failure to have light to orig. other
negligent workplace acts that led to husband’s death, because “there was but one episode-in-suit” –
husband’s death – and “∆ negligently operated a certain instrumentality at a particular time and place.”
• BF&W v. Motorola (2006) – Being too specific in original complaint can hurt you sometimes when it comes
to relating back – BF&W original complaint described “services agreement” while 2nd complaint described
“licensing agreement – court says different transactions, don’t relate back. Reiterates Mayle/Tiller that
complaints on new facts/theories must still concern the same “common core of operative facts”/same occurrence
on which you’re suing “so that adverse party has fair notice of the transaction/occ/conduct called into
question.”
John Doe still a useful concept when you want to INCLUDE a party but don’t know exact name (i.e. didn’t see name
tag scenario) – just do discovery quickly as possible and get that name in before stat/lim runs.
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E. Joinder of Claims & Parties; Counterclaims & Cross-Claims
Joinder of Parties
Rule 20 – Permissive joinder of parties
• (This is PERMISSIVE – “Π is master of the claim,” so Π s have the right to choose who to add on both sides.)
• (A) For multiple plaintiffs to join – these requirements must be met:
o Their claims arise out of same transaction/occurrence/series thereof AND
o The claims involve common questions of law and fact
• For a plaintiff to join multiple defendants:
o Π ’s right to relief arises out of same transaction/occurrence/series thereof AND
o Any question of law or fact common to all defendants will arise in the action
• Judgment may be given for one or more of the Π s according to their respective rights of relief, and AGAINST one or
more ∆ s according to their respective liabilities.
• 20a only applies to joinder of parties by the ORIGINAL PLAINTIFFS.
o Except – Under 13h, a ∆ can join additional parties as defendants on his counter-claim/cross-claim IF
it is same transaction/occurrence and same law/fact Q.
• (B) The court may:
o Make orders necessary to prevent (fraudulent joinder, basically) – part who asserts no claim, or a party
against whom no claims are asserted
o Or order separate trials as necessary to prevent delay or prejudice
Joinder of Claims:
Rule 13 – Counterclaims & Cross-claims
• 13a – Compulsory Counterclaims – “Use it or Lose it” rule; All ∆ counterclaims against “an opposing party” that
arise out of the transaction or occurrence that are the subject matter of Π ’s claim must be made at time of
responsive pleading. If you don’t do it then, you WAIVE it forever.
o When claims are factually related, the benefit to trying it all at once is so high that we will force you to do so.
o Encourages finality between the two parties.
o “opposing party” includes co-∆ s who have filed a cross claim against you! If they file against you, and you
have a RELATED claim against them, you are now obligated to bring it.
• 13b – Permissive counterclaims – You can choose whether to add any other counterclaims to like, if they’re NOT part
of the same transaction or occurrence. (Goes to same policy interest of letting people work it out all at once.
o “opposing party” includes co-∆ s who have filed a cross claim against you! You can permissively join an
UNRELATED claim against a co-∆ if he has already filed a cross-claim, making you an opposing party.
OR if YOU have filed a cross-claim, as other ∆ is now an opposing party to YOU!
• 13c – A counterclaim can’t diminish or defeat the recovery sought by the other party. But it can claim relief
exceeding in amount or different in TYPE from that sought by other party.
• 13f – Omitted counterclaim – When a pleader fails to set up a counterclaim through oversight, inadvertence or
excusable neglect, OR when justice requires, the pleader may by leave of court add it in an amendment.
• 13g – Cross-claims – PERMISSIVE. Two ∆ s already in case together can make claims against each other if it’s
related to the original action or a counterclaim therein. “Parties on same side of the V”
o Different from 14 bc no new ∆ is being created/pulled in.
o Don’t HAVE to make cross-claims, though. (Might not be great strategy!)
o ∆ 1 can always wait and sue ∆ 2 later on his own!
• 13h – You can join add’l parties in counter/cross claim IF it meets the standard in Rule 19/20 (necessary, OR same
transaction/same law or fact Q).
A. Power Theory
3 Kinds of Jurisdiction:
• In Personam – personal judgment against someone – for $$ damages, an injunction, etc.
• In Rem – DIRECTLY relating to property – I’m suing you to recover a piece of land. Fairly narrow & specific. (Like
Neff v. Pennoyer – it’s my land, get off it)
• Quasi-in-Rem – Relating indirectly to property (like Mitchell v. Neff – Mitchell is suing over debt owed, and trying to
attach land to fulfill that personal debt.)
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sued/auth of an agent to accept svc of process has been given.”
o In this case – systematic solicitation of orders resulting in a continuous flow of product into the state =
sufficient to constitute “doing business in the state” = “presence.”
o BUT – Even if they didn’t do enough within the state to be considered “doing business,” they can still be
held liable for specific causes of action related to their activities. “Other such acts, because of their nature
and quality and the circumstances of their commission, may be deemed sufficient to render the corp
liable to suit.”
Step 2: Statutory amenability (is there a long-arm statutes that allows the following)
After determining whether there was proper service, the court’s next step in the j/d analysis is to determine
whether state (or nonconstitutional federal) law authorizes the forum court to exercise j/d over the D. That is,
is there a rule or statute by which the legislature has authorized the courts to exercise j/d over the D in this
sort of case.
Just because the Constitution lets a state exercise power over a ∆ doesn’t mean it has to – states are free to
limit their own jurisdictional powers. They’re free to say “We will not hear a case here if….”
o For example, a state could rule out general jurisdiction cases entirely for nonresidents – after all, gen J is
tricky, as there is always a better place to sue. May also make state more amenable to biz.
o The key principle here is “Hey Π , go find the statute that lets you sue here!” For example, find the long-arm
statute and determine if your cause of action fits within it. Then find the rule on how to serve process, and
make sure you follow it.
o Confirm how far statutory amenability reaches – intended to include this ∆ ? If a ∆ wouldn’t be amenable
under a state’s statutes, it probably won’t be amenable in a federal court either – fed J is usually very similar
to state J under Rule 4k1a.
Only exception – if ∆ is not amenable in ANY state ct (Rule 4k2) – like a foreign co.
Step 3: Constitutional amenability
Determine whether the exercise of j/d is constitutionally permissible. Minimum contacts and fair play &
substantial justice analysis.
o Int’l Shoe introduced this formulation & its factors:
o MINIMUM CONTACTS – Do they have purposeful availment w/ state? Could they expect suit?
o REASONABLENESS FACTORS: (WWV)
State interest – State has an interest in making its forum open for its own residents to sue outsiders;
also, there’s an interest in regulating non-residents’ behavior in-state
Π interests (be able to sue where they live)
Burden on ∆ – Fairness to ∆ ; Convenience/inconvenience to ∆
• Forum clause
A. Contrasting contractual acquiescence as a basis for j/d with due process j/d analysis.
o Require 2 components for validity of forum selection clause from Carnival:
If P has received adequate notice of the forum selection clause
If D can show sufficient reasons for including the clause in K.
1. A cruise line has a special interest in limiting the for a in which it potentially could be subject to
suit.
2. Dispell any confusion about where suits arising from the K must be brought and defended,
sparing litigants the time and expense of pretrial motions to determine the correct forum and
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conserving judicial resources that otherwise would be devoted to deciding those motions.
3. Passengers who purchase tickets containing a forum clause benefit in the form of reduced fares
reflecting the savings that the cruise line enjoys by limiting the for a in which it may be sued.
o Other law from Bremen case will not enforce FS clause if:
FS clause was product of fraud
Party opposing clause would practically be deprived of day in court
Fundamental unfairness of enforcing clause would deprive P of remedy
Enforcement would contravene strong public policy of forum
These are rarely successful.
E. Long-Arm Statutes
Gray v. American Radiator (SC Illinois 1961) – Ohio co. ∆ , Titan, makes valves out of state, then ships to radiator co. ∆ in
Penn., who then sells finished radiators in Ill and elsewhere. Π injured in Ill.; can she sue Ohio valve ∆ in Ill., even though
they don’t actually sell any valves there?
• This is the first case testing the new Ill. long-arm statute, which was the first one in the country. We are deciding the
meaning of the statute as well as its Constitutionality.
o For “Nonresidents who have submitted to the J of our courts” – personal svc out of state is now allowed and
has the force of svc within Illinois.
o “A nonresident who either in person or through an agent commits a tortious act w/in state submits to J here.”
o This extension of jurisdiction is a legislative expression of statutory amenability to suit. The state legislature
wants its courts to be able to hear this kind of case.
• Meaning of “tortious act” – is it just the wrong/injury occurring in-state, or the entire action + wrong? ∆ says only
the injury happened there, not the negligent manufacture. Court rejects this – says a tortious act isn’t tortious until
injury occurs, so the “intent should be determined from general purpose/effect.” Law applies when just the
injury occurs here. But – be careful about extending this to NON-INTENTIONAL activities, like negligence.
• Due-process question – “It is a reasonable inference that Titan’s commercial transactions result in substantial
use/consumption in this state” – element of foreseeability implied.
o “Where alleged liability arises from the manufacture of products presumably sold in contemplation of use
here, it should not matter that the purchase was made from an independent middleman or that someone other
than ∆ shipped product into state.”
o It’s not just quantity of in-state contacts, but quantity + quality. This is why foreseeability is important.
• HYPO – What if Gray buys the same water heater in Illinois, then moves to Alaska (which is colder than it’s
manufactured for), and the water heater explodes? You could argue that the language should be read broadly –
“wherever it ends up” – but then due process has no limits. There’s a foreseeability element here too. You
could say that Titan did not “voluntarily inject” itself into Alaska.
o Same for if Gray buys the water heater, then sells it on Ebay to her brother in TX. This is probably not going
to work, because at that point Titan is not “purposefully availing” itself of the TX forum.
World-Wide Volkswagen Corp. v. Woodson (1980) – NY residents buy car in NY; collision/fire occurs in OK; Π s sue Audi
(manufacturer - Germany), Volkswagen (national distributor - Delaware), and WWV (regional distributor – NY) and Seaway
(dealer - NY) in Oklahoma state court. WWV was a distributor. WWV and Seaway say Oklahoma has no personal J bc it
would violate Due Process (Const.). Oklahoma Supreme Ct says WWV can be sued there because it’s “foreseeable” that a car
could be driven there.
• Ct says minimum contacts analysis has two purposes:
o Protect defendant against burden of litigating in a distant or inconvenient forum
o Ensure that states (through their courts) do not reach out beyond the Const. limits on them
• Factors that are considered in analyzing “reasonableness”:
o Burden on ∆
o State’s interest in adjudicating dispute
o Π ’s interest in obtaining convenient and effective relief
o Interstate judicial system’s interest in obtaining most efficient resolution of controversies
o Separate states’ interest in furthering fundamental substantive social policies
• Reiterates that ∆ must purposefully avail itself of the forum. Court redefines “foreseeability” analysis: “The
foreseeability that is critical to due process analysis is that the ∆ ’s conduct and connection with the forum
state are such that he should reasonably anticipate being haled into court there.”
o This gives predictability to the legal system that helps people know what conduct will render them liable to
suit, and where.
o Unilateral actions by Π do not give ∆ reasonable notice that it could be subject to suit here.
Helicopteros Nacionales de Columbia v. Hall (1984) – In TX state court, Π (TX resident) sues Consorcio/WSH (TX), Bell
Helicopter (TX) and Helicol (Colombia). Helicopter, owned and operated by Helicol, crashed in Peru and killed Π s’ relatives.
Question is whether TX court has jurisdiction over Helicol. (Helicol had bought helicopters in TX; negotiated K in TX; sent
pilots and mgmt for training in TX.)
• The cause of action here is wrongful death – the pilots flew negligently. You are going to be hard pressed to find that
this is connected with Helicol’s activities in TX. (MAYBE if you were suing them for negligently training the pilots –
but not for this.)
• First case in which SC recognizes General/Specific J analysis – so is this a specific or a general case?
o Specific J? The cause of action must “arise out of” or be related to ∆ ’s activities within state. Court
says parties have conceded this is not the case.
o General J? ∆ must have continuous/systematic contacts with state, so that due process is met. Helicol
doesn’t have that either. The volume of business in TX isn’t “substantial” enough.
Asahi Metal Ind. v. Sup Ct of California (1987) – Japanese valve maker sells to Taiwanese tire tube maker, which sells tires to
CA and other places. Only remaining dispute is between Japan/Taiwan. Simple “placement into stream of commerce” is
not enough; deliberate action is required. Big concern here is fairness/burden to ∆ . That’s the main reason this gets
thrown out, as it MIGHT pass MC analysis.
• The debate here is “Stream of Commerce” vs. “Stream of Commerce Plus.” Plus wins. “A defendant’s awareness
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that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of
placing the product into the stream into an act purposefully directed toward the forum state.”
• Reasonableness analysis – State and Π interest in trying the case in CA is low; burden on ∆ is very high.
III. Venue
Personal jurisdiction is separate from venue. PJ is the court’s power to compel you to appear.
Venue is subordinate to jurisdiction. It is a matter of where the case is appropriate to be tried. It further narrows down the
appropriate places where someone can be sued.
Venue can be appropriate under 1391 a/b2 (events), but you still may not have personal jurisdiction! Like in Worldwide
Volkswagen – venue was technically appropriate in Oklahoma under 1391a2, but the court said there was no PJ on Seaway
there.
State Court Venue Concepts: Venue at the state level is based on counties, and will work within the state very similarly to the
district system in federal courts. Transfer would be from county ct to county ct. A state court CANNOT transfer a case
outside of the state – it has no power to compel another state court to take the case.
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IV. Forum Non Conveniens
FNC involves dismissal only – not transfer. So courts are on a tighter leash than with 1404/1406.
FNC is very determinative of the ultimate outcome; if Π s lose the FNC issue, they are very unlikely to win the second time –
and that’s if they refile at all, which many do not.
As courts expanded personal jurisdiction limits through Shoe, WWV and the like, Congress/the courts similarly
expanded courts’ discretion to decide which cases to hear (Gilbert, Piper).
Gulf Oil Co. v. Gilbert (1947) – Establishes FNC – We normally leave Π ’s choice of forum alone. But dismissal will
ordinarily be appropriate if Π ’s chosen forum imposes a heavy burden on ∆ , or on the court, and Π has no good reasons
of convenience supporting his choice of this forum. (Establishes public/private interest factors.)
Piper Aircraft Co. v. Reyno (1981) – Plane crashes in Scotland; CA resident administrator of estates sues Piper (PA aircraft
manufacturer) and Hartzell (OH propeller manuf.) in CA state court. ∆ s removed case to CA fed ct. Piper moves on 1404 and
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Hartzell moves on 1406 (no PJ) to transfer to PA fed ct. When it gets to PA fed ct, ∆ s move to dismiss on forum non
conveniens. Ct grants motion & dismisses; says case should be brought in Scotland. Can’t bring case in US just because
you like the laws better. The connection with Scotland was much stronger.
• What law applies to the defendants? PA law would apply to Piper (under CA choice-of-law doctrine) and Scottish
law would apply to Hartzell (under PA choice-of-law doctrine – can’t apply CA choice of law to Hartzell because the
CA ct did not have jurisdiction over Hartzell.)
• “A plaintiff’s choice of forum should rarely be disturbed.” BUT – if certain factors are present, courts can dismiss
the case.
• Unfavorable COL in new forum WILL NOT preclude a FNC dismissal.
• Public interest factors – Court would have to apply two different laws; case already proceeding with Scotland and is
more related to Scotland
• Private interest factors – Foreign Π has chosen US forum purely because of better laws; a lot of the evidence and
witnesses are over there
MISC v. Sinochem (2006 – still in contention) – Arguing about whether FNC can be looked at separately from jurisdiction.
MISC says SMJ and PJ are paramount and must be established BEFORE the FNC analysis. Sinochem says it’s ok to look at
FNC first; subject matter is more important than personal jurisdiction, and if you’re going to dismiss it anyway, why waste
time on PJ… ct isn’t assuming any power by deciding NOT to hear a case.
• In Sinochem, MISC wanted to sue Sinochem in Pennsylvania court. There was a concurrent case going on in China,
that I think Sinochem had instituted against MISC. The Penn. court dismissed the case on FNC without completely
deciding whether they had personal jurisdiction over (one of the parties, I forget which). Their rationale was, go
litigate this in China where there's already a suit happening
• MISC is arguing that SMJ and PJ are paramount and must be established before any kind of FNC analysis. MISC
thought the court never should have gone to FNC without determining proper PJ first. Basically, MISC thinks the
analysis should look like this: SMJ/PJ ---- (above, in terms of importance) ---- Venue/FNC
o This is the traditional view -- that venue is subordinate to SMJ/PJ, and that you establish SMJ/PJ before you
even look at venue (or, by extension, FNC). The basic rationale is that FNC implies choice between two
PROPER forums/venues. IF you don't look at PJ first, how do you know if this forum's even proper? Seems
to go against the very nature of FNC.
• Sinochem, on the other hand, wants to uphold the FNC dismissal. Sinochem says, why not look at FNC first, if you
already have a really good idea that you're not going to keep the case (in this case, because the ct probably would have
had to apply Chinese law).
• Sinochem would probably agree that you should determine SUBJECT MATTER jurisdiction before looking at FNC,
but thinks you don't necessarily need to look at personal jurisdiction first. In this case, it would have taken a good bit
of investigation to determine whether or not personal jurisdiction was proper. Sinochem says, why waste all that time
messing around with it if you know you'll end up dismissing it either way? (If you don't have PJ, you'll dismiss for
that. If you do have PJ, you'll dismiss for FNC.)
• So Sinochem is arguing for a scheme like this: SMJ ----- (above) ---- PJ/Venue
• Sinochem thinks that DISMISSING for FNC doesn't violate anyone's personal jurisdiction rights because by
dismissing, you are declining to exercise judicial power. It's an abstention from exercising jurisdiction. Therefore,
the ct isn't assuming any (PJ) power it doesn't have when it DECLINES to hear a case for FNC.
o MISC's theoretical problem with this is that considering FNC implies that you COULD keep the case here, if
the public/private factors weighed in favor of it. You are basically assuming you HAVE jurisdiction to
"abstain from using it." And you shouldn't act as though you could keep the case if you don't even know
whether you have PJ.
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V. Subject-Matter Jurisdiction – DIVERSITY
Constitutional Basis: Article III, §2:
• Controversies between two or more states
• Between a state and citizens of another state
• Between citizens of different states
• Between a state or its citizens and foreign states, citizens or subjects
28 USC §1332:
• A – Federal district courts have original jurisdiction when the amount in controversy (AIC) is greater than $75,000
AND is between:
o 1 – Citizens of different states
o 2-3 – US citizens and foreigners or foreign states
o 4 – Foreign states and US citizens
• A – Permanent residents are considered citizens of the state in which they are domiciled
o Domicile = where you live + where you intend to stay
You only have one domicile!
o Mas v. Perry – Moving without intent to stay does not change your domicile (it will be the last one you
did establish). Student’s last domicile was in Mississippi, and she has not yet established a new one, so
regardless of subsequent moves she is a Mississippi domiciliary.
o Actual foreigners (living here but not permanent residents) are just plain foreign – they can’t mess up
diversity no matter where they domicile, as they aren’t citizens of any state.
• C1 – Corporations are considered citizens of the state in which they are incorporated AND the state in which they
have their principal place of business.
o PPB can be hard to establish with larger companies – look for any definable “center”/nexus and use a couple
of tests:
“bulk of corporate activity” – employ the most people, conducts most activities, has most relations
w/ public
“nerve center” – corporate HQ; home office from which activities are coordinated (better for things
like an insurance co.)
Basic Principles:
• Complete diversity requirement comes from common law – Strawbridge v. Curtiss in 1806 – it’s not in the plain
language of 1332 or the Constitution.
o Insufficient pleading of diversity is curable – ct can tell Π to amend pleading.
• Πs must meet the AIC requirement in the initial claim itself – no interest, counterclaims, etc can add to it. The
court will look to the amount alleged in the complaint.
o Also – St. Paul Mercury rule – AIC is determined by amount claimed by Π in good faith. If Π pleads
over the limit in good faith, then even if jury awards less, SMJ will hold.
• Heavily in favor of Π -- judge must let case stay unless it appears to a legal certainty that the claim
won’t meet $75k.
o If the state’s laws forbid allegations of monetary damages in the complaint, the district ct may consider
whether it’s “facially apparent” that the AIC is met, or it may require SJ-type evidentiary submissions to
make a determination.
o Punitive damages can go toward the AIC amount, but only if the Π is entitled to them as a matter of (state)
law. Cts will scrutinize closely if the comp. damages are small in comparison.
• In cases with multiple Π s, under state law, their claim to the punitive award must involve a
common, collective right to the pot of punitives. (Will NOT be allowed to count if it’s a
joint/several right to a portion of the award.) Atty fee awards work the same way.
o Injunctive relief – measured from economic view of the Π .
• Aggregation of claims:
o Each Π must meet the AIC on their own – can’t add up several Π s’ claims to hit the AIC requirement.
o Π can aggregate all claims against ONE ∆ , but can’t aggregate his claims against multiple ∆ s to hit the
AIC amt.
o See Supplemental J re: an exception –Allapattah said just the representative, just one Π , had to meet
AIC in the well-pleaded complaint.
Fraudulent Joinder
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• Applies when Π has filed in state court, and ∆ would like to be able to remove, but the lawsuit currently includes
parties that destroy complete diversity.
• Fraudulent Joinder arguments – that the Π has added unnecessary/improper plaintiffs or defendants to prevent
complete diversity – are how ∆ s can challenge a lack of diversity jurisdiction. (∆ s usually want to get INTO federal
court; Π s are more likely to lose in federal court.)
• If ∆ can prove that the Π s in question have no valid cause of action against the ∆ s in question, or that there is no
possibility of recovery, then the “fraudulently joined” people can be thrown out of the case. (This makes it removable
to federal court.
• In re Benjamin Moore & Co. (5th Circ. 2002) – Lead paint case; Π s added in-state ∆ s, among many national ∆ s. The
∆ s removed to federal ct and argued fraudulent joinder, saying that most of the Π s had no claims/could not recover
from the in-state ∆ s, so the Π s should be split in half. Π s then successfully moved to remand. Splitting Π s into
groups could occur, but it didn’t here – ∆ s lost.
28 USC §1331:
• Federal district courts have original jurisdiction over civil actions arising under the Constitution, federal laws, or
treaties.
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Congress has the power to confer as much or as little j/d to federal cts. as is allowable under Art. III,
§ 2, through the enactment of legislation
Vast majority of cases that come w/in the grant of general federal question jurisdiction are those
encompassed by Holmes’ statement that “suit arises under the law that creates the cause of action” =
federal law creates the cause of action
• Substantial Federal Q – Here, we’re not provided with a statute specifically creating a
private right of action under federal law/no “grant of original j/d under a federal statute”
• However, Congress has enacted 28 USC § 1331, which broadly grants federal subject
matter jurisdiction to complaints “arising under” federal law
• Statutory authorization
o Means that Congress has provided original jurisdiction to fed cts in the statute,
o Or that Congress has provided (or implied) a private right of action for plaintiffs.
Factors, per Merrell Dow: Are Π s part of the class for whose benefit the statute was passed?
Does legislative intent reveal a Cong. purpose to provide a private c/a?
Would a private c/a further the underlying purposes of the legislation?
Is the c/a of a subject traditionally relegated to state law?
• If the federal statute does not provide a grant of original jurisdiction, and there is no express/implied private right of
action, then we go to the substantial federal question doctrine to see if the case belongs in federal court.
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o A substantial federal question
Will it affect a wide range of people and behavior, or just this single circumstance?
o Necessary to the disposition of the case
o Actually in dispute
It helps if this issue, once settled, won’t need to be readdressed – it can be a precedent-setter.
o And the balance of state/federal ct power wouldn’t be upset. (In line w/ Cong. Intent.)
Is the “impact on federalism” too high – flood of cases?
Will this lead to a flood of state-law claims in federal court? You don’t want to encourage
continuous removal of cases that would routinely be tried in state ct.
• We’re saying that, because these four factors are present, even w/o a private c/a and OJ, Congress still intended this
case to be in the federal courts, under the meaning of §1331.
• The whole reason we need to guess at Cong intent is that they haven’t expressly set that out via private right of action
or independent grant of original J.
• In Grable, the whole case hinged on whether Grable had been given proper “notice” of the seizure under the federal
tax law. If he had, he would lose. If not, the land was still his.
o The fed q DOES NOT have to be Constitutional – the Ct expressly denied to draw that line.
o Problem with Grable – makes it a lot easier for ∆ s to try a substantial question argument
Test for Subst. Federal Q – using example of tax question from past exam
I. State cts. have concurrent j/d w/ fed. cts...therefore, person seeking federal ct. j/d has burden of proving that
federal ct. has the power to hear the case
II. Constitutional basis
a. Art. III, § 2
i. “Federal cts. have original j/d over claims arising under federal laws and treaties”
ii. Osborn – just a federal ingredient is enough to meet constitutionality
b. Art. III, § 1
i. Congress has the power to confer as much or as little j/d to federal cts. as is allowable under Art. III,
§ 2, through the enactment of legislation
ii. Vast majority of cases that come w/in the grant of general federal question jurisdiction are those
encompassed by Holmes’ statement that “suit arises under the law that creates the cause of action” =
federal law creates the cause of action
1. Here, we’re not provided with a statute specifically creating a private right of action under
federal law/no “grant of original j/d under a federal statute”
2. However, Congress has enacted 28 USC § 1331, which broadly grants federal subject
matter jurisdiction to complaints “arising under” federal law
III. Statutory basis
a. “Subject matter jurisdiction is a creature of statute” (Hoffman)
b. 28 USC § 1331
i. District cts. have original j/d over claims “arising under” federal law (Constitution, laws, or treaties
of the US) …
ii. “Federal question” subject matter jurisdiction is a judicial interpretation of the “arising under”
language contained in 28 USC § 1331. It’s not specifically provided for in the statute; instead, it’s
found in case law.
iii. A case may arise under federal law “where the vindication of a right under state law necessarily
turned on some construction of the federal law” based on the presence of a federal issue in a
state-created cause of action
1. The mere presence of a federal issue in a state cause of action does not automatically
confer jurisdiction
2. The fact that federal legislation does not provide a private right or cause of action is
significant to the determination that the federal issue is insufficiently “substantial”
iv. TEST (Merrell Dow, Grable)
IV. FIRST PRONG:
a. Is there a substantial question of federal law actually in dispute?
i. Probably not. Although the dispute “involves”(broadly speaking) the legality of tax shelters under
the Internal Revenue Code, which is federally-enacted statute, the Plaintiff and Defendant do not
dispute that the shelters are illegal.
1. The court here isn’t going to decide whether KPMG’s “investment program” is illegal, but
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instead…
2. Plaintiff and Defendant dispute, and the court will decide, whether or not the opinion
letters issued by Defendant misrepresented the fact that the IRS would deem the shelters
legal.
3. Fraudulent/negligent misrepresentation is a state law cause of action
ii. If the dispute did involve the legality of the tax shelters, then ask yourself …
1. Is the determination of legality of federal tax shelters (governed by IRC) an essential
element of the state-law tort claim misrepresentation?
2. Is the federal tax issue an important issue of federal law that sensibly belongs in federal
court?
b. Is the resolution of the federal question necessary to the determination of Plaintiff’s case?
i. Yes. BUT, the investment program, we must assume, has already been determined to be illegal by
the IRS
ii. That’s why Plaintiff is bringing the case; it received an opinion letter that claimed the tax shelter
was legal, when in fact, the IRS had already determined that the investment program was illegal.
Misrepresentation, not legality.
V. SECOND PRONG: “…federal issue will ultimately qualify for a federal forum only if federal jurisdiction is
consistent w/ congressional judgment about the sound division of labor b/t state and federal courts governing
the application of §1331”
a. Assuming the FIRST PRONG is satisfied, would allowing a federal court to hear the case upset the balance
between state and federal court caseloads that Congress intended?
i. Probably. If federal courts are required to decide negligent misrepresentation claims (traditionally
a state law claim) just because they somehow involve a federal law, then state courts will be
deprived of the power to hear cases that are fundamental determinations of state law.
ii. The federal law that’s used as a basis for subject matter jurisdiction in the case must be necessary
to the court’s determination of liability.
iii. The involvement of federal law can’t just be collateral to the state law issue actually determined in
the case. It must be the issue that’s determined in the case.
Artful Pleading
• The federal-question equivalent of fraudulent joinder in diversity cases.
• Occurs when:
o Π trumps up his claim to get into federal court (without a really good federal Q)
o Π downplays the presence of a federal Q to keep his case in state court. (Actually more common, as Π s
usually do better in state court.)
• AP objection can be raised by the defense to try to get the case where he wants it.
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VII. Subject-Matter Jurisdiction – SUPPLEMENTAL JURISDICTION
Applies when a Π is alleging a federal law claim and a state law claim at the same time. Can he get them both into federal
court?
Π v. ∆
--- fed law claim 1 --->
--- state law claim 2 --->
28 USC §1367:
1367a – Applies to 1331 Federal Question cases
• Except as in B and C, or as expressly provided otherwise in federal statute,
• In any civil action of which the district courts have original jurisdiction, the district courts shall have Supp J over all
other claims that are so related to claims in the action with original J that they form part of the same case or
controversy. (This language codified the CNOF language in Gibbs).
o “So related”/“same case/controversy” is generally interpreted to mean “common nucleus of operative fact.”
• (This is quite broad.) This includes claims that involve joinder/intervention of add’l parties (Finley).
o Pendent party is OK now
1367b – Applies to 1332 Diversity cases (NO 1331 basis at all, just diversity)
• Basically, the supplemental state law claims are not allowed to destroy complete diversity.
• District cts shall NOT have supplemental J under (A) over:
o claims made by Π s against ∆ s joined under Rule 14, 19, 20 or 24
o claims by proposed joined Π s under Rule 19 or Π s seeking to intervene under Rule 24.
This means it technically doesn’t bar extra Π s joined under 20! Permissive joinder plaintiffs
may not have to meet AIC as long as the first Π does – but it prob. still does have to meet complete
diversity (huge common law bkgd here)
ALSO – this DOES NOT restrict defendants! Co-defendants or defendants joined after the initial
complaint CAN assert claims against non-diverse parties.
• IF doing that would be inconsistent w/ jurisdictional requirements of 1332 (complete diversity/AIC).
1367c – Gives courts the right to decline supp j if:
• Claim to be attached raises a novel or complex issue of state law
• State law claim “substantially predominates” over the fed law claim
• Dist. Ct. has dismissed all of the federal claims (so there are only state law claims left)
• Or, “other compelling reasons”
TX v. OH (1331) ------- Ok because you got into ct on Fed Question J; diversity doesn’t matter.
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OH (state law)
The big rationale for letting people bring along a state claim with their 1331 claim is that otherwise, most people would
just sue in state court on both. (State ct has concurrent jurisdiction over federal law claims unless the fed law expressly gives
J to fed ct.) That would lead to lots of federal law cases being heard in state ct.
If Π sues with one fed law claim and one state law claim, and Fed Ct doesn’t want to hear the state law claim, it still
has to hear the fed law claim by itself! Π is entitled to federal forum on the fed. Claim.
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o For purposes of diversity in class actions, we only consider the diversity of the NAMED class rep.
(Unnamed/absent Π s’ citizenship doesn’t matter.)
o Before SJ/Allapattah, the named class member and ALL unnamed class members definitely had to meet the
AIC requirement on their own. If just one absent class member was below the minimum, the case could not
go forward including that member. Problem is, class actions are usually BECAUSE the amounts aren’t that
high on their own.
o Court takes a literalist approach in Allapattah – in Exxon, Π s were joined by R.23, and in Ortega, Π s were
joined by R.20 – Ct reads 1367b literally, which only blocks joined plaintiffs under 19 and 24. Therefore
Rule 20 and 23 Π s are ok.
• Why does the presence of a non-diverse party destroy finding of original J under 1332, but by contrast, a party w/o the
AIC requirement doesn’t?
o Presence of one non-diverse Π means that we don’t need to provide a federal forum of this case,
because the same-state parties cancel each other out in terms of bias. So the legislative intent was not to
provide a fed forum in that case.
o Intent with AIC was just to distinguish important from unimportant; we’ve already got at least one Π that
meets it, so the case is sufficiently important.
VIII. Removal
The removal statutes allow defendants to move a case from a state court to federal court.
Key variable in 1441 is whether fed ct would have original jurisdiction – either through 1331 or 1332. The right to remove the
case is completely a legislative prerogative. The right to remove depends on a statutory grant of that right; without that grant,
the case must stay where Π filed it.
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HYPOS on Removal
What if TX sues NY & TX, in Tx state court?
• Suit filed Jan 1; TX ∆ is dropped on March 1.
• 1446b – ∆ has 30 days from when the case becomes removable. That’s when the clock starts – it wasn’t
removable before TX ∆ was dropped (no diversity).
• What if TX ∆ is dropped on March 1, 2007? (14 months after start of case). No removal; the 1446b 1-year time
limit is strict. (Same principle as 1447d; federal forum privilege is important, but not the MOST important thing.
Don’t want cases that have been pending for more than a year to get into fed ct and have to start all over.)
o What if the TX ∆ is improperly/fraudulently joined? You remove the case by virtue of 1332 and say this ∆
has been fraudulently joined – drop them and then have diversity J.
o What if TX ∆ is not fraudulently joined, but you know Π is doing this on purpose and will drop them? Too
bad for you.
• What if Π adds federal question claim on March 1, 2007? Then ∆ can remove; 1446b 1-year limit only affects 1332
diversity cases.
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IX. Choice of Law
Horizontal COL issues: Which state’s law applies? (Piper – what state substantive law applies to the conduct of each plaintiff?)
Post- 1938 FEDERAL – FRCP in effect STATE substantive law, after Erie.
28 USC §1652 – The laws of the states, except where US Const/laws provide otherwise, shall be regarded as rules of decision
in federal courts.
Erie RR v. Tompkins (1938) – Accident in PA; Tompkins is PA resident. Π sues RR in NY fed ct, because he did not want PA
law to be applied – he’d have much less chance of winning. (RR was subject to personal jurisdiction in PA and NY; “doing
business” in PA, and citizenship was NY because of HQ.)
• Π could have sued in 4 diff. cts – PA state; PA fed; NY state; NY fed. SMJ – no problem in state courts because
they’re general J courts.
o PA state – PJ: “doing business”; SMJ: general so yes – but PA cts will apply PA law, and Tompkins would
lose.
o NY state – PJ: incorporated; SMJ: general so yes – but NY cts have choice-of-law doctrine that would still
apply PA law (place of injury).
o PA fed – PJ: “doing business”; SMJ: yes via diversity – but PA fed cts (3rd Circuit) pushed to defer to state
law. (NY 2nd circ did not do this.)
o NY fed – PJ: incorporated; SMJ: yes via diversity – Best chance to get general federal common law
applied.
This highlights how much inconsistency there was under Swift.
A great deal of forum-shopping went on because of this inconsistency. Both Π s and ∆ s, but
especially corporate ∆ s.
Corporations at the time were ONLY citizens of one state – where they were incorporated. So they
could just re-incorporate wherever they wanted, and either create or destroy diversity.
• What’s the legal issue? Duty owed to Π (licensee or trespasser?). RR says he’s a trespasser according to PA law,
and RR only owes duty not to willfully/wantonly harm. Tompkins says he’s not a trespasser, so duty is ordinary
negligence/reas. care.
o Erie side – NY had a choice-of-law rule that said you apply the law of the place of injury. Also, the Rules of
Decision Act, §725 (“laws of the states shall be regarded as rules of decision.”)
o Tompkins side – No, you should use the “federal common law,” which has an ordinary negligence standard.
Fed ct is free to make up own law here because “no such rule had been established by Penn statutes.”
• Brandeis argues that Swift v. Tyson’s interpretation of the RDA (“law” only = statutes) is wrong. Not attacking the
RDA itself, just the interpretation; overrules precedent of Swift.
o Basic holding: the RDA “laws of the states” should be interpreted to include state judge-created
common law as well as statutes.
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o Goes on to discuss a Constitutional dimension, but again, it’s just about the Swift interpretation. Interpreting
RDA to mean that you can supplant state law is unconstitutional. Judicial branch was usurping the
legislative prerogative to make law, w/o any legislative authorization to do so. Fed ct was not applying a
federal statute – it was making up law on its own. Brandeis says they can’t do that; you can apply federal
law (statutes) if it exists, but can’t make up fed common law.
• Bottom line on Erie: If a case is in fed ct on diversity, it’s supposed to come out the same as it would in the state
ct (as close as possible) – because the only reason for having the fed ct involved is to eliminate bias. Everything
else should be the same.
• Fed ct should be a less-biased alternative to state ct, not a place to get a completely different result. Obviously it
does matter… but the principle behind Erie is that they should be as close as possible.
Supplemental J situations – 1331 claim plus an accompanying state law claim – Federal judge should use federal common law
to interpret the 1331 claim, and the appropriate state common law to interpret the supplemental state law claim.
How does fed ct. determine what the content of state law is?
• After Erie – under 1332, Look to state’s highest court to see how they interpret the law, and fed ct is bound to interpret
it that way.
o If no supreme ct decisions, look at intermediate appellate courts.
o What about when there’s a conflict, or no decision? Fed ct can make its best guess, but should act like the
appropriate state ct in deciding. Predict how the issue WOULD be decided by the state supreme ct, if
they were the ones ruling on it today.
• Use applicable appellate cases, common law trends in the state, dicta in other SC holdings, state
legislative developments, etc.
Procedure v. Substance:
• Typical example – Who has the burden of proof in a specific case? Or, which statute of limitations applies? Suppose
that state procedure allows 30 days to answer a complaint, but FRCP only allow 20 days. Or what about rules for
providing notice/summons?
• The problem is that, even though there’s no right to supersede state common law, there is a constitutional right to
create and implement federal procedural rules for federal courts. (Article I, § 8 – create laws appropriate for exercising
the power to create cts)
• So look at whether the difference between state/federal law would actually encourage forum shopping or other
uneven results.
o Something like personal service vs. “left at known residence” probably isn’t outcome-determinative enough
to encourage Π s to pick a different court!
Four basic types of federal provisions that may conflict with state law:
Federal Const. provision might mandate a federal court procedure that differs from state law (such as requiring a
unanimous jury verdict)
o Constitution is always, always superior to state law. Always go w/ federal rule.
Federal statute may govern federal practice but conflict with state law
o “Arguably procedural” statutes related to the litigation process will trump state law, via Constitutional
authority of Congress to make those laws.
Formal FRCP rule may conflict with state law (like the conflicting service of process rules)
o FRCP applies if it is valid as a procedural regulation (judicial process for enforcing rights and duties;
justly administrating remedies. Almost always.
Federal judges may develop judicial practices (common law practice custom) that conflict with state law.
o Will it affect the outcome of the case? Will it lead to forum shopping/uneven results? If so, probably
should use the state law.
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How do we know when a real Erie problem arises?
• A federal court
• is adjudicating a state-created/state-based claim
• and a dispute arises as to whether:
o the applicable law is procedural in nature, and therefore federal,
o or is governed by state substantive law.
When you have a 1332 diversity case, you must apply FEDERAL procedure and STATE substantive law.
2. Procedural issue? (FRCP almost always wins out.)
o Does it apply? (there will be a debate on whether it governs this specific issue)
o Is there an actual conflict (direct opposition btw rule and state law), or can you read the FRCP narrowly so
that it doesn’t “conflict” with the state law standard, and apply both?
o If it does, is it Constitutional? (SC has never found FRCP unconst. They come from the SC!)
o Does it violate the Rules Enabling Act?
Is it simply procedural (§2072a), for the administration of a court?
Or, would it fall under 28 USC §2072b – Rules may not abridge, enlarge or modify any substantive
right? If it’s inconsistent with stat, Const provision, or treaty, it would be modifying a subs. right.
o Only one occasion when a FRCP has to yield to state law: violates “Twin Aims of Erie” – Hanna v.
Plumer.
would encourage forum shopping (try to get a different outcome in fed ct), or
would cause unfairness in the administration of the law.
Outcome Determinative Test. Fed Cts sitting in diversity should apply a state law that conflicts
with a federal practice when disregarding the state law would significantly affect the outcome of the
litigation.
• Differing statutes of limitations are an example that would FAIL and require the use of
state law – that WOULD encourage forum shopping.
• Differing service procedures probably would not.
Will this create a significant difference in litigation opportunity?
3. State substantive law question?
o Apply the law of the forum state. (Discourages forum shopping & uneven results.)
o If there is no controlling law, follow the state’s highest court. (Fed ct. must be a “ventriloquist dummy” for
the state ct.)
o If there is a horizontal choice of law issue, the federal judge must follow the forum state’s COL doctrine – as
per Klaxon. Designed to maintain the lack of incentive to forum-shop. COL rules are often one of two types:
Lex loci delicti: Apply the law of the place where the injury occurred.
States’ interest: What state has the most interest controlling the question at issue? Which one has
the most significant relationship to the events and parties? (MORE COMMON)
If the issue is PROCEDURAL – federal (FRCP) applies. If the issue is SUBSTANTIVE – state law applies.
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X. Pre-Trial Discovery
A. How and why is discovery important?
Since 1938, discovery has occupied a central role in the federal system as a counterbalance to notice pleading.
• If we only require minimal pleading at the front end of a lawsuit, the expectation is that most of the info gathering on
a case will occur at the discovery phase.
• We give generous discovery allowances to let parties “fill out” the pleadings. We don’t want to throw out pleadings
for “lack of disputed material facts” without knowing if there ARE any.
• However, we also don’t want to allow too much discovery (both at a private matter of an individual lawsuit, and at a
large-scale “social justice” level). Have to watch out for abuses on both sides.
• But – it’s not as pervasive as it may seem. In fact, only about half of cases even involve discovery. Typical case has
relatively little discovery, conducted at proportionate levels of cost.
• Judges are often unable/unwilling to take a very active role in a discovery dispute. It’s the lawyer’s job to call the
judge’s attention to something going wrong. But we should do what we can to stay out of court altogether on
discovery issues. Parties can usually work it out. Only go to court w/ it if you really have to.
• Discovery is about building your case in a very targeted way. Don’t just ask any old question. Ask targeted questions
so that you can see/envision what it’s going to look like when you cut and paste it into your argument/motion for
SJ/cross-examination at trial/etc.
• You want to ask pointed, direct questions. Get to the meat. Get your soundbites.
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B – Failed motions – ct can enter a protective order and shall require moving party to pay reas.
expenses of other party
C – Half & half – split expenses as appropriate
• B – Failure to comply with a court order
o 1 – in district where depo is taken – failure to be sworn or to answer can be found contempt of ct
o 37b2 – sanctions by court in which action is pending – ct can make these orders:
A – say facts will be taken as established, in other party’s favor
B – refuse to allow bad party to support or oppose certain claims or defenses, or enter certain
evidence
C – Strike out pleadings or parts of them; stop proceedings until obeyed; dismiss the action; render
default judgment against bad party
D – Contempt of court
Or, atty fees/reas. expenses caused by the failure
• C – Failure to disclose; false or misleading disclosure; failure to admit (and failure to UPDATE past responses per
26e2)
o C1 – Unless it was harmless, your failure to disclose/update info means you can’t use it as evidence either.
Also, ct can impose sanctions
o C2 – Failure to admit – if other pty proves it’s true later, you may have to pay atty fees (except for given
excuses, just read rule)
• D – Failure to attend deposition or serve answers to interrogatories
o Ct can use 37b2 a-c sanctions, or impose reas. fees/expenses
• G – Failure to participate in framing a discovery plan
o Again – reas. expenses/atty fees caused by failure.
More Basics:
• Interrogatories/discovery as to personal jurisdiction ARE ok. They are at least relevant to a “jurisdictional defense,”
if one party is saying there’s not PJ.
• What if ∆ has made a 12b2 lack of PJ? Still has to continue with discovery, until it’s ruled on. BUT – probably
a good idea to ask for a protective order to stay discovery on the merits until PJ is settled.
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that’s all you have to deal with.
o If you admit something, it’s “forever true.” It’s off the table.
o Three choices – admit, deny, “I lack sufficient info/knowledge to admit or deny” (Very close to your options
in answering a pleading.)
o Why are they dangerous? Because you can’t ignore them. If you don’t answer a question, it is deemed to be
admitted against you, just like what happens in pleading answers.
o Unlimited in number.
o Can only be sent to parties.
o Must respond w/in 30 days.
E. E-Discovery
Three big components to the new e-discovery rules:
• 26(b)2 (undue burden) – describes how parties do not have to come up with discovery materials they identify as not
reasonably accessible because of undue burden or cost. (Then the court decides what to do – compel, split costs, etc
– after looking at requesting party’s reason for needing it.)
o What does it mean to say “undue burden or cost”? Some sense of proportionality – not huge expenses for a
small lawsuit; proportionality in terms of importance/likelihood of usefulness; privacy/ability to separate out
material not relevant to case; “reasonably accessible” – electronic and knowledge-wise.
The vision is that you’ll produce items in stages (easiest to hardest) – give people a chance to see
what’s been produced (reasonably) before they assume it’s not enough. They look at that first and
then decide if they need more. (Lawyers should talk that out in 26f conference.)
Be careful what you ask for/how you act, because the other side do that too.
Catch – the more retrieval you’ve already done, the less burdensome it is on you if other side asks
for it.
o What if they just keep making requests? File for a protective order. But you really don’t know if they are
using it or not.
o What does “good cause” mean?
o What kind of conditions might a court specify? Split costs,
• 26(b)5 (Privilege) – If you accidentally get work-product material, you can’t do anything with it and you should tell
them; if you don’t agree, go to the court; hang on to it/don’t destroy it until it can be returned.
o It’s often not worth the effort to look within every single document, so people just give big stacks of
documents over.
o This is designed to avoid the risk of “privilege waiver.”
• 37f (Regular destruction of data) – No sanctions for failing to provide electronically stored info lost as a result of the
“routine, good-faith” operation of an electronic information system.
o “Safe harbor provision” designed to avoid punishing people who are operating under a tech/maintenance
system that’s independent of litigation.
o Raises a lot of questions; doesn’t it encourage people to have frequent “routine” delete devices? Most likely
to be a problem w/ companies that are engaged in high-risk businesses (they already anticipate litigation, so
they act preemptively)
o Whatever document-retention policies you have ordinarily, you’d probably better STOP destroying things
once litigation begins. (It’s not really good faith if you know that relevant evidence is going away.) You
minimize the bad press later if you just stop the destruction early.
Zubulake v. UBS – Electronic material is just as discoverable as paper material. So the presumption is still that the responding
party must bear the expense of complying, even though 34 mentions splitting costs.
• Cost-shifting should only be considered when e-discovery imposes ‘undue burden or expense’ on responding party.
Undue = outweighs its likely benefit.
• This often turns on which format the info is kept in.
• Factors to think about – specificity of request (specific items, or just digging?); availability of info from other sources;
total cost compared to AIC; total cost compared to each party’s resources; relative ability of each party to control
costs; importance of the issues at stake; relative benefits to parties of getting the info.
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F. Work Product Exemption
Work product is exempted from discovery, but is not technically a “privilege.”
• Protects the thoughts and strategies that a lawyer has while preparing a case. Covers the “mental impressions” but not
the facts themselves. (Notes from an interview are covered; a tape of the interview w/ no commentary might not be.)
o Example – if client mails you the murder weapon, that’s not covered, because that is a FACT, not a mental
impression.
• Doesn’t necessarily involve communication with anyone.
• Has to be in anticipation of litigation. Objective/subjective standard – has to be objectively reasonable that a person
would expect a lawsuit, and you had to actually think it (w/ some proof to that effect).
• Has to be by or for the party and his representative. Can atty tell someone ELSE to do it, like a private investigator?
26b3 includes “attorney or other representative of a party” if it’s opinions, legal theories, etc.
o Texas has an even tighter WP rule (protecting attorneys).
o So Erie question – should district court use a state standard or the FRCP? It’s likely that the federal rule
would be used under Erie analysis.
• Subject to an exception – “Substantial need and hardship” – sometimes other side can get it anyway. (Different from
A/C because A/C is totally exempt.) Witness has died, witness is outside of jurisdiction, impeachment purposes
(witness may be lying on the stand).
• The work product exemption does not prevent FACTS from being discovered, even if they are learned through
trial preparation.
o Say the company lawyer asked around w/ many employees about who had information on something. If a
later interrogatory asks him WHO has info on that issue, lawyer has to tell!
• “Four Questions to Ask” per article: (refers to documents but still useful)
o Is the document a confidential document or memo?
Or was it something that was disclosed to an adversary?
o Was it prepared by or at the direction of an attorney?
o Does it reveal the atty’s mental impressions, opinions, conclusions, or legal theories?
o Was it prepared in anticipation of litigation or for trial?
Hickman v. Taylor (1947) – Key WP case – Tugboat sinks. Before any litigation, tugboat co.’s attorney interviewed
survivors/witnesses and took notes. Then Π s wanted all of his transcripts of the interviews. Ct says no, you can’t have those,
because that would show you atty’s thoughts/thought processes – plus, it’s readily available. There may be other
circumstances where this could be appropriate, like if a witness had died and that’s the only way you could get the evidence,
but there’s no need for it here.
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o Testifying ones are easy, because you have clearly hired them to testify.
Rule 26a2 requires disclosure of the testifying experts within 90 days of filing suit; they can be
deposed too.
o But a CE is someone that you hire to give YOU advice behind the scenes – they don’t testify. A CE’s help
IS protected – either under WP doctrine (rep of atty to help strategize), or you could call it a “CE privilege.”
Usually, the only way you would get CE’s material into court is if TE read it.
26b4b – a party may only seek discovery concerning non-testifying experts under a showing of
“exceptional circumstances” where party seeking discovery to obtain facts or opinions on the same
subject by other means.
26b4b advisory notes – you can only get a list of “experts consulted” that includes formally
consulted ones. “Informally consulted ones” don’t count, so you can expert shop.
G. Attorney-Client Privilege
A-C privilege makes items exempt from discovery (like dr-patient, husband-wife, clergy-parishioner)
• The idea behind this privilege is to protect communications between attorneys and their clients if it’s for the purpose
of giving or receiving legal advice.
• A relationship must actually be in place for this to count. (But, atty-client relationship probably still does exist if it’s
just an initial consultation; we want to encourage open communication and consideration of who the best lawyer will
be)
• The mere fact that the practitioner is an attorney will not create a valid attorney-client privilege with respect to a
communication, for example, that involves business or accounting advice rather than legal advice.
• When relationship ends – it’s a good idea to send written confirmation of that.
• Client has total control over atty-client privilege.
• IT only protects what you TOLD the lawyer – not the facts themselves. If I tell my lawyer I had 8 beers, then
drove home and got in a wreck, that communication is privileged, but I will still have to answer honestly if
asked about whether I drove drunk!
o What is privileged: “What did you tell your attorney?” Don’t have to answer that.
o Otherwise, defendants could immunize everything they know by telling it to an attorney!
o Likewise, if a lawyer knows a fact about the case, he can’t perjure himself by disregarding those facts.
• “Four Questions to Ask” per article: (refers to documents but still useful)
o Is the document a confidential communication?
Or has it been disseminated to third parties?
o Is the communication made for the purpose of facilitating the rendition of legal services?
Or could it have been made by any business person in the office?
o Is the communication made by an attorney acting in his or her capacity as such?
o Is the communication made to the client?
• WAIVER -- privilege can be waived by client, or accidentally by atty. Not keeping info confidential (inadvertent
disclosure) will waive it, unless you can show due care/a real accident.
o Government prosecutors – KPMG case; gov’t prosecutor insisted KPMG waive privilege to get a “good
cooperation” designation (Judge said no). Thompson memo insisted that prosecutors use this weapon in the
arsenal. There has been a push in last 10 yrs to require this more.
o Selective Waiver – Whenever someone turns something over, there’s a chance that it has waived privilege.
Idea behind selective waiver is, does it make sense that when you HAVE to turn something over, like in the
auditing context, you completely waive your privileges? Selective = only waived for certain purposes. But
not all courts recognize this.
o Proposed FRE 502(c) – This rule would establish selective waiver across the board. “Presumption is that you
can selectively give someone something without waiving the privilege more generally.”
• Upjohn v. U.S. – The issue here is who the “client” is; do we count lower employees in there? Upjohn had conducted
an internal investigation via a questionnaire, marked “highly confidential,” given to many upper and lower employees.
Gov’t said atty-client privilege only includes higher-level people in the “control group.”
o Court uses “subject matter” test – any employee can count if the communication is relevant to the
subject matter of a legal issue.
o It also has to be private/confidential. (Did you take reasonable precautions to ensure the info would be kept
private? They did here.)
o The privilege only protects disclosure of communications; it does not protect disclosure of the underlying
facts by those who communicated with the atty. Gov’t was free to question the employees themselves.
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• Don’t forget – 26b5 – you have to assert privilege and describe the nature of comm/why it is privileged.
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XI. Judgment as a Matter of Law – SUMMARY JUDGMENT
A. Summary Judgment Basics
If people don’t win on the SJ motion, how it gets treated is very indicative of how things will ultimately turn out in a case.
Rule 56
• A – Claimant may move for SJ at any time after 20 days after filing.
• B – Defending party may move for SJ at any time.
• C – SJ may be rendered if the evidence on file, together with the SJ affidavits, show that there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law.
o The inquiry here is, does the Π have enough evidence to get to a jury? Is there enough evidence that a
“reasonable jury” could find for the Π ?
• D – Partial SJ – court can determine that some facts are in controversy and some are not, and therefore strike out some
parts/issues of the case.
o “Most overlooked rule of value” in FRCP – if you dispose of one claim; may reduce damages (such as
knocking out punitives); knock out one or more parties.
o Doesn’t win the whole case but “makes your life a lot easier”
o By trimming the fat, you can help get your client in a better position to settle
• E – Supporting and opposing affidavits shall be made on personal knowledge, set forth such facts as would be
admissible in evidence, and show the party is competent to testify.
o Affidavits can be supplemented by further evidence.
o After a SJ motion, the adverse party’s response must set forth specific facts showing there is a genuine
issue of fact for trial.
• F – If it’s too early (in discovery, etc) and the adverse party doesn’t have enough evidence to show the issue, the court
can order a continuance or deny the SJ motion for now.
o ∆ ’s decision to wait too long to move for SJ can help a judge say, let’s just leave this for the jury because
then there’s more insulation on the decision.
o But if ∆ does it too fast, judge probably won’t do it yet.
o At close of discovery is a good time to move for SJ. Almost never premature at that point. But if you need
to do it faster, just have a good argument for that.
• G – provides for sanctions for SJ motions “made in bad faith or solely for the purpose of delay.”
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B. Standards for Summary Judgment Motions
Adickes – regarded civil rights question; whether black restaurant patrons could be denied the right to sit down and eat. (Π s
arrested for “loitering” after being told to leave.) Question turned on whether there were police acting in conspiracy with the
restaurant. At the time, the store wasn’t prohibited from denying service, but police/municipality couldn’t do that. Pre-trial,
when ∆ moved for SJ, they had the burden of proof in the negative – proof that police were not in the store – although
burden would be on Π s at trial to prove cops WERE in the store.
Celotex v. Catrett – What is the burden on the movant at summary judgment? Π sues 15 companies for wrongful-death; claims
her husband was exposed to Celotex asbestos. Celotex moves for SJ, saying that Π will not be able to offer any evidence that
Catrett was exposed to asbestos as a result of working at any Celotex job site.
• Under Adickes, it would appear that ∆ bears the burden of PROVING that at this time.
• Π then offers three pieces of evidence that she says prove Catrett was exposed. (Deposition transcript, letters)
• Trial ct grants SJ; he found those items insufficient. Basically thought all of that was inadmissible for one reason or
another (hearsay, other deficiencies).
• AC reverses; ∆ didn’t produce any evidence to support his SJ motion. (Cites Adickes.) So SJ was improperly
granted.
o AC – we don’t get to non-movant’s burden at all until movant has shown enough. They would need to go
through all relevant evidence and show why Π can’t prove.
• SC reverses (grants SJ again) – says all a moving party needs to do is show/point out that there is a lack of
evidence that other party has brought. (NOT to produce their own evidence showing the absence of a fact issue.)
Point out flaw vs. bring own evidence.
o White’s concurrence – says “it’s not enough for movant to make a conclusory assertion.” It’s not clear that ct
REALLY says “all you have to do is point out a flaw.”
o Clear view of Celotex nonetheless is that ∆ s only need to do the minimum.
o Issue at this stage of the case is, did the ∆ /movant meet his initial burden. If ∆ fails to meet his burden,
we never reach the stage where the nonmovant has to produce. (TC/SC are both saying ∆ did meet that
burden.)
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o Narrows things down for trial – now Π only has to worry about proving the other elements.
HYPOS:
Two people in car; driver is drunk but passenger isn’t. Driver stays in car and is not within sight of anyone in C-store.
Passenger goes in and buys beer. Driver drinks more beer. Driver then hits a car. Π sues convenience store, claiming it was
negligent to serve drunk driver. ∆ moves for summary judgment – 1. We were not negligent because we sold the beer to a
sober person. Never saw drunk guy or knew about him at all. 2. No causation, because we sold to a passenger, not a driver.
Passenger is the intervening cause here by giving beer to driver.
• Can ∆ move for SJ? How? Yes -- Π can’t show any evidence that we were negligent, because we didn’t sell to
driver/drunk person. We made a legal sale. Also , you have no causation, because we didn’t sell anything to
the guy who caused the accident.
• “Just say ‘there is no evidence that Π s can offer to show we were negligent. So show us your evidence!’”
• Then, Π would have to try to prove ∆ wrong… come forward with some evidence that there WAS a negligent
act.
• The point of Celotex is that we have to ask the question – did ∆ meet burden at SJ. Celotex says you can meet your
burden by basically doing nothing.
Employee accused by Randall’s of stealing stuff from the store. Π decides to file a lawsuit saying that wasn’t true, and she
suffered NIED. (TX does not have NIED.) In ADDITION to 12b6, Rule 56 is available to dismiss that claim. No cause of
action.
• What about if she sues for IIED, which is recognized in TX, but you have to prove “extreme and outrageous” conduct.
∆ moves for SJ and says “there’s no evidence Π can introduce that we were extreme/outrageous.
o ∆ met burden? Yes. Basically, all they have to do is say it.
o But this looks like a case where, if we let the judge exercise her gatekeeper function, there seems to be a
greater threat that the judge is stepping into the province of a jury. Different here because instead of no
evidence, we have iffy evidence where jury would have to make a judgment call.
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o But – there’s a big point of view that says it’s ok for judge to do this anyway. A lot of judges are more
suspect/less willing to let these cases go forward. So they’ll use the “No reasonable jury would find this
way.” (Not “no one” would find this way – just “no reasonable jury.”)
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XIII. Preclusion
Talking about only one issue = issue preclusion/collateral estoppel.
Talking about the total outcome = claim preclusion/res judicata.
Car Carriers v. Ford – Trial 1 – CC sues Ford in federal court for conspiring against CC’s business; Ford wins because CC
failed to make out a valid claim under antitrust law. Next year, CC sues Ford again in fed ct, but this time sues under RICO
and ICA. ∆ s move for judgment in that these claims are precluded by the 1982 suit. Ct says CC’s claim is barred because
it was already brought, and CC already lost.
• Res Judicata – has to be same claim that was or could have been litigated. Defined using a “transactional test.”
• Ct says this DOES meet the same transaction test because it refers to the same chain of events – same factual context.
Requirements:
• Same issue litigated before
• Actually litigated and determined in the prior case
o If you didn’t raise it in the prior case – say you just admitted to it – then it wasn’t litigated!
o If it was raised and argued about, but the court didn’t rule on it, then it wasn’t determined.
o Can be used by parties outside the prior case
• Issue must have been necessary to the prior judgment.
o Example – manufacturer was found to be the one who built a ladder, but the jury said that defect didn’t cause
the plaintiff’s injury.
Tricky IP problems:
• If there was a default judgment for one side, RES JUDICATA bars relitigation of it, but IP does not! (In a default
judgment, nothing is actually litigated or decided!)
• If the jury finds for Π on a general verdict on two theories, neither theory will be barred for ∆ later – there’s no
telling which one (or both) was necessary to the ultimate decision.
o Can’t tell which one/both they “actually decided” on either
• If the jury finds for ∆ on a general verdict on two theories, then both probably WILL be barred for Π later – clearly,
the jury thought NEITHER passed muster.
• If the judge or jury finds for Π expressly on both theories, cts differ:
o Some say neither are precluded – both were decided, but we can’t tell which was necessary
o Some say both are precluded and assume both were necessary.
• In the second case, check very carefully to see if different circumstances might make this (very similar) is a different
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one. (Example – two different shipments of coal; fact that the 1st one was substandard does not preclude that issue
from being discussed re: the second one, unless you can prove it’s exactly the same!)
Offensive preclusion – person in position of plaintiff, not a party to the case before, wants to preclude relitigation of an issue
in the second case.
• “Sword” – establish a fact that ∆ lost on last time (which will help you win your case).
• Π 2 is trying to borrow a finding from a prior action to impose liability on a party who was a defendant in the prior
action.
o Π is often trying to borrow a finding to establish an element of his prima facie case.
o Less typical -- Π uses it to preclude defendant from proving a defense that he failed on in the first action.
• Offensive because you want the other side to be precluded from arguing a point automatic judgment for you bc it’s
decided as a matter of law.
• The elements of the first suit need to match the elements of the second suit exactly.
• Need to look at fairness factors because this is much more aggressive. (Parklane)
o The party against whom estoppel is used in the second action was a ∆ -- he did NOT choose forum, etc.
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o Allowing later Π s to borrow ruling from the first case may encourage plaintiffs to wait and see – hold back
from joining first Π ’s suit.
• Need to look at the Π here to see if that looks likely. Was there a good reason for Π not to join in
original suit?
o Also, a party may not have litigated the issue aggressively the first time if the stakes were very low (low
damages, etc). May be inappropriate to allow estoppel if the ∆ didn’t have the same incentive the first time.
o Also, procedural rules on the first case might have been stricter.
o Also, prior inconsistent judgments on the issue, if present, suggest that it may be unfair to give conclusive
effect to any one of them.
o Also – any hint that the trial was less than “full and fair” the first time?
• If application of OP would be unfair to the ∆ , then a judge should not allow the use of OP. Ct will only allow
estoppel if it is convinced that ∆ had full opportunity and incentive to litigate the issue 1st time.
Hybrid/weird cases
• ∆ 2 tries to assert estoppel that would be an affirmative defense, like Π ’s contributory negligence, on which Π lost in
the case against ∆ 1. It’s kind of like defensive bc ∆ 2 is a defendant and this would let him escape liability. But it’s
kind of like offensive in that ∆ 2 is using estoppel to establish a fact on which Π lost in the first case.
• P v. D1 and D2 – say it’s a suit for a 3-way car wreck re: negligence, and D1 is found negligent but D2 isn’t. Then,
D2 doesn’t cross-claim but waits to sue D1 separately.
o Depending on the arguments, and whether D1/D2 blamed it on each other, ∆ 2 may not be able to use
DEFENSIVE estoppel to prove she wasn’t negligent – if D1 didn’t blame it on her, D1 hasn’t gotten a
chance to litigate her negligence yet.
o But D2 might get to use offensive estoppel to say that D1 has already been found negligent – that DID get
litigated. Have to look @ fairness factors.
Parklane Hosiery v. Shore – Offensive preclusion case. The SEC prosecuted Parklane for a false/misleading proxy statement,
and won – the ct held that the statement was false/misleading. Shore wanted to sue Parklane for the same thing in a
stockholder’s class action, and wanted Parklane to be precluded from arguing whether the statement was false/misleading.
• Ct allows this case of offensive preclusion, even though Shore wasn’t a party to the first action; this is the same
issue of fact. Hard to see why we should give Parklane a right to litigate it again since they lost so decisively, and this
new plaintiff COULDN’T have joined before in the SEC’s action.
• We don’t need to give ∆ s more than one “full and fair opportunity” to litigate issue.
CARTER CASES:
• Is a dismissal on statute of limitations grounds actually a judgment on the merits?
o Should that be blanket over all stat/lim cases?
o Stat/lim is only on merits re: claim was untimely – you can’t go in and argue later that it was TIMELY. You
can’t relitigate a question that has already been answered, and in that way, it’s on the merits. (But we didn’t
really decide the rest of the case!)
Nothing that Carter II judge said about the untimeliness of that case really applies to the first case.
EXCEPT – claims actually brought up in Carter II. Partial SJ would be appropriate to take care of
the duplicate claims, but not the ones in 246-47.
o Fair to preclude the timely claim because of an untimely one?
• To what extent are the acts in the cases similar/different?
o Two different right to sue letters? Does that indicate different facts/claims? If so, the second one shouldn’t
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preclude the first.
o If they ARE the same, and he already sued on it in a timely manner, doesn’t that make the second case
unnecessary to start with? Second case either should have been consolidated, or should have been dismissed
as a duplicative suit (and not affect first one)
• What about the appeal? Doesn’t first court have to wait for second case’s appeal decision?
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Collateral Attacks
An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than
within the original action or an appeal from it.
When a separate and new lawsuit is filed to challenge some aspect of an earlier and separate case, it is called a
collateral attack on the earlier case. This is different than an appeal, which is a challenge to some aspect of a decision
made in the same case.
A defendant may make a collateral attack on a judgment entered against him or her in some instances. If a default
judgment is entered against the person, he or she may collaterally attack the authority of the issuing court to render it,
claiming that there was a lack of personal jurisdiction.
Collateral attacks cannot be on the merits. (A bad attempt at a collateral attack will be too close and get precluded!)
A collateral attack may also be made upon a judicial proceeding in a single state.
Example: Sam obtains a divorce in Nevada without properly notifying his wife, Laurie. Laurie files a later lawsuit
seeking to set aside the divorce and start the divorce proceedings over. Laurie's case is a collateral attack on the
divorce.
Example: Joe Parenti has been ordered to pay child support in a divorce case, but he then files another lawsuit trying
to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of paternity
in the divorce action.
The law wants judgments to be final whenever possible, and thus collateral attacks are discouraged. Many are filed,
but usually only succeed when an obvious injustice or unconstitutional treatment occurred in the earlier case.
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