LAW SUIT OVERVIEW

1) Find a cause
a) Substantive law
b) Violation of statute, breach of common law standard of care, etc.
2) Decide court in which to bring suit
a) State v. federal court
i) Subject matter jurisdiction
b) Which state or federal court
i) Personal jurisdiction
ii) Venue
3) Decide which law to apply
a) Source of law doctrine – Erie
4) File a complaint and notify opposing party
5) Disclosure and discovery
6) Attempts to avoid litigation
a) Motions, settlement, etc.
7) Modification of parties
a) Joinder
8) Trial – not covered in this course
9) Finality of judgments
a) Preclusion

PLEADING: COMPLAINT AND RESPONSES

Strive to balance between:
 Deciding case based on merits v. technicalities
 Avoiding prejudice to the opposing party v. providing fair notice

THE COMPLAINT

 Rule 7: Pleadings Allowed, Form of Motions, and Other Papers

 Rule 10: Form of Pleadings
 Rule 8(a): Claim for Relief
o (1): Short and plaint statement of jurisdictional grounds
o (2): Short and plain statement of the claim entitling pleader to relief
o (3): Demand for relief sought
 Rule 8(e): Construing Pleadings
o Pleadings must be construed so as to do justice
 Rule 9(b): Fraud or Mistake; Conditions of the Mind
o Heightened pleading standard for fraud
 Forms
o 1: Caption
o 7: Statement of Jurisdiction
o 11: Complaint for Negligence
o
1) Conley v. Gibson (pg. 35)
a) African American railroad workers claim that union did not provide fair representation in labor dispute with
railroad. Dismissed under 12(b)(1) motion, but Supreme Court reviews the 12(b)(6) motion as well and reverses
and remands
b) Two requirements:
i) Formal sufficiency: only need a “short and plaint statement” of the claim that gives the defendant fair notice
of the claim and the grounds upon which it rests
ii) Substantive sufficiency: claim survives motion to dismiss unless it is beyond a doubt that P can prove no set
of facts in support of his claim that would entitle him to relief (overruled by Twombly/Iqbal)
(1) Implicitly requires that court take all factual allegations as true
c) Note that 12(b)(6) and 8(a)(2) are mirror images
2) Swierkiewicz v. Sorema N.A. (pg. 39)
a) Employee claims employer terminated him because of national origin and age discrimination. Trial court and
COA grant D’s 12(b)(6) motion because the complaint did not support an inference of discrimination. Supreme
Court reverses and remands
b) The complaint survives motion to dismiss because P can prove some set of facts that would entitle him to relief
i) When considering D’s 12(b)(6) motion, the court must accept as true all factual allegations contained in the
complaint and make all reasonable inferences
ii) Justifications:
(1) Exclusio unius based on Rule 9(b)
(2) Discovery phase roots out non-meritorious claims and might be the only way to obtain the direct
evidence that D is claiming must be alleged to survive dismissal
(3) Summary judgment can end litigation if discovery results in non-meritorious claims
(4) Notice pleading
c) This case is about fair notice (a matter of formal sufficiency) which is why Twombly says it is still good law and
Conley is not (because it is also about substantive sufficiency) but Sherry believes this case is really no different
than Conley
3) Bell Atlantic Corp. v. Twombly (pg. 45)
a) CLECs allege that ILECs conspired to restrain trade by engaging in parallel conduct to inhibit growth of ILECs and
by entering into agreements not to compete with each other. Trial court grants D’s 12(b)(6) motion, COA
reverses, and Supreme Court reinstates dismissal.
i) For Sherman Act violation, parallel independent conduct is not enough but rather need a preceding explicit
agreement
b) To survive a motion to dismiss, a complaint must allege facts that plausibly suggest, and are not merely
consistent with, a claim for which P is entitled to relief
i) Overturns Conley’s “no set of facts” language test for substantive sufficiency
ii) Parallel conduct is consistent with both illegal and legal behavior; does not make plausible an illegal explicit
agreement; only conceivable
iii) A “bare assertion,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action”
such as the existence of a conspiracy (explicit agreement) is not enough and is not something the court must
take as true when considering a motion to dismiss
4) Ashcroft v. Iqbal (supplement pg. 21-30)
a) Iqbal alleges that high level officials maliciously condoned and endorsed subjecting Iqbal and thousands of other
Muslim men to harsh conditions of confinement as a matter of public policy solely on account of race, religion,
and national origin.
b) Extends Twombly holding beyond antitrust cases
 i) Facts alleged not sufficient enough to plausibly suggest that detention policies were for the purpose to
discriminating rather than a neutral investigative reason
c) Plausibility requires more than possibility and less than probability
i) On its face the opinion does not say it is changing the Twombly standard, but it seems that Iqbal is asking
that an illegal explanation is “more likely than not” the case
d) The court need not accept as true:
i) Conclusory allegations of fact – “formulaic recitations of elements of a cause of action”
ii) Allegations of law

RESPONSES: MOTIONS

 Rule 12(a)
o (1)(A-C): Must serve answer to complaint, answer to counterclaim or crossclaim, and reply to an answer
within 21 days of service
o (4): Service of motion extends responsive pleadings by 14 days of court’s decision on disposition of motion
 Rule 12(b): Defenses that can be raised by motion (or answer)
o (1): Lack of subject matter jurisdiction
o (2): Lack of personal jurisdiction
o (3): Improper venue aaa = Defense is waived if
o (4): Insufficient process not raised in first response
per Rule 12(g)(2) and 12(h)
o (5): Insufficient service of process
o (6): Failure to state a claim upon which relief can be granted
o (7): Failure to join a party under Rule 19
 Rule 12(c): Motion for Judgment on the Pleadings
o After pleadings are over, and before discovery begins, either party can file motion which will on be granted if
there are no factual disputes
 Rule 12(d): Result of Presenting Matters Outside the Pleadings
o Only applies to motions under Rules 12(b)(6) and 12(c)
o If evidence outside the pleadings are presented, then the motions must be treated as a motion for summary
judgment and each party should be given a reasonable opportunity to present pertinent material
 Rule 12(e): Motion for a More Definite Statement
o Must be made in response to a pleading requiring a response and must be made before any response is filed
 Forms:
o Form 30: Answer Presenting Defenses Under Rule 12(b)
 Responding to Allegations in the Complaint
 Failure to State a Claim
 Failure to Join a Required Party
o Form 40: Motion to Dismiss Under Rule 12(b) for Lack of Jurisdiction, Improper Venue, Insufficient Service of
Process, or Failure to State a Claim
1) Waivers
a) Justification for waivers
i) Issues in Rules 12(b)(2-5) can all be consented to
ii) Cannot consent to issues in Rules 12(b)(1,6,7)
iii) Will not necessarily know who is a required party until discovery is over
iv) Without SMJ, judge has no authority to decide a case
v) If there is no claim, then there is no case
b) Defenses in motions v. answer
 i) All defenses must be stated in responsive pleading if required but those in 12(b)(1-7) can additionally be
raised by motion
ii) If 12(b)(1,6,7) motions are not raised before response, then they can no longer be raised by motion and
must be included in a response or raised at trial
iii) Dismissal under Rule 12(b)(1) can be issued by judge at any time
iv) Always raise the defense via motion if possible because it requires less work
v) Motions cannot be amended, only pleadings

RESPONSES: ANSWERS

 Rule 8(b): Defenses; Admissions and Denials

o (1)(A-B): Must present “short and plain statement of all defenses” and admit or deny each claim
o (2): Denial must respond to the substance of a claim
o (3): May issue general denial of all, or general denial of all except those specifically admitted
 “Over-denying” a claim that turns out true will be deemed to not have responded to substance of
claim per 8(b)(3); effectively admission
o (5): May claim lack of knowledge needed for reply, but in effect is denial
 Cannot do this if it is within capacity to discover the knowledge
o (6): If you do not admit or deny, it is in effect an admission
 Exception: If you do not respond to a claim alleging damage amounts, it is not admitted
 Rule 8(c): Affirmative Defenses
o Anything other than denial of law or fact that precludes liability
o Non-inclusive list of affirmative defenses that must be stated in response
o These affirmative defenses cab be raised through a 12(b)(6) motion as long as the affirmative defense does
not require additional facts
1) King Vision Pay Per View, LTD. V. J.C. Dimitri’s Restaurant, Inc. (pg. 71)
a) D does not admit or deny a claim but rather “demands strict proof thereof” for 30 of 35 total claims. Court
treats responses to the 30 claims as admissions.
b) Federal Rules only allow admission, denial, or a lack of knowledge (effective denial) subject to Rule 11 good faith
requirements
2) Carter v. United States (pg. 75)
a) D did not invoke non-economic statutory damage cap argument in response to limit the damages P could claim.
Six weeks before damages trial, D invoked. Per Rule 8(c), P claimed damage cap is an affirmative defense waived
by not including it in response.
b) Court holds failure to plead an affirmative defense only works a forfeiture if P is prejudiced (i.e. if there isn’t fair
notice)
i) P would not have acted any differently (no leeway in specifying economic v. non-economic damages in this
case) had he known of D’s argument
ii) Court does not decide whether statutory damage cap is an affirmative defense

AMENDMENTS

 Rules and Forms

o Rule 15(a): Amendments Before Trial
 (1): As a Matter of Course
 Can amend within 21 days after serving pleading
  If it is a pleading to which a responsive pleading is required, then within 21 days after service
of responsive pleading or service of 12(b,e,f) motion
 (2): Other Amendments
 If not within (1), then need leave of court or consent of other party
 Court should freely give leave when justice requires it
o Rule 15(b): Amendments During and After Trial
 (1): Based on Objection at Trial
 If opposing party objects evidence presented in trial is outside scope of pleadings, presenter
should be given leave to amend if aids in presenting merits of the case and opposing party
does not show prejudice
 (2): For Issues tried by Consent
 If issue not in pleadings is tried by consent, must be treated as raised in pleadings; court
may give leave to amend to conform to evidence at any time during or after trial
o Rule 15(c)(1): Relation Back of Amendments
 An amendment relates back to the date of the original pleading (i.e. not barred by SOL) when:
 (A): law that provides SOL allows relation back (statute has not run), or
 (B): amendment arises out of the same transaction set out in pleading, or
 (C): amendment changes party and, if 15(c)(1)(B), 4(m), and notice and no prejudice to new
party, and new party knew or should have known of action but-for original mistake in
naming party
1) Dubicz v. Commonwealth Edison Co. (pg. 78)
a) Attempt to amend when claim is within the statute of limitations
b) 7th circuit COA reviewed a denial of a SOL-timely motion for leave to amend 8 months after original amended
complaint to fix 9(b) pleading standard deficiency. Trial court denied for undue delay. Abuse of discretion
review.
c) Delay is not enough to deny a motion for leave to amend unless it is “undue” because of prejudice to opposing
party
i) In this case, conclusory statement of prejudiced based on memory and document loss is not enough
ii) Application of the Foman factors (pg. 81), where delay is of unequal weight
iii) 6th Circuit, in Commercial Money, allows delay alone as a reason to dismiss; “at some point delay [alone]
becomes undue”
2) Tran v. Alphonse Hotel Corp. (pg. 82)
a) Attempt to amend when claim is barred by statute of limitations
b) In 1991, P alleged underpayment per FLSA. In 1997, after P learned that underpayment was due to bribery, P
granted leave to amend and added RICO claim. COA reverses grant.
c) Court reasons that RICO claim is time barred per statute of limitations, and does not relate back per 15(c)(1)(B)
i) The only predicate act that gives can give rise to RICO is bribery, which was not mentioned in original
complaint – since no other predicate RICO act in original, this predicate RICO act cannot arise out of the
same transaction or occurrence
(1) No fair notice – new factual or legal allegations changed the nature of the case entirely
(2) Prejudice to D in the form of a lack of repose
ii) Narrow or broad interpretation of Rule 15(c)(1)(B) depends on judges view of the importance of the SOL
d) If P offers evidence of bribery at trial, and D does not object but instead just offers evidence that there was no
bribery, D has consented under Rule 15(b)(2) and court will allow amendment of the pleading
i) By P’s offering of evidence, and D’s failure to object, there is fair notice and no prejudice
POLICING PLEADINGS AND MOTIONS

 Rule 11(b): Representations to the Court – by presenting to the court any filing through any means, the attorney
certifies to the best of his knowledge, information and belief after an inquiry reasonable under the circumstances,
that
o (1): there is no improper purpose such as harassment, undue delay, etc.
o (2): claims and defenses are warranted by existing law, or by a nonfrivolous argument for changing current
law
o (3): facts have evidentiary support, or will likely have such support after a reasonable opportunity for
discovery
o (4): denials of fact are warranted on evidence, or if stated, reasonably based on belief or lack of information
 Rule 11(c): Sanctions
o (1): if after notice and a chance to respond and fix problem, a violation of 11(b) is found, court can impose
sanctions for which attorney and law firm are jointly responsible
o (2): motion for sanctions must first be served on violating party, and only filed with court if violating party
does not fix problem with 21 days of service (“safe harbor”)
o (4): can take any form, but no greater than needed to deter violator and those similarly situated
1) Patsy’s Brand, Inc. v. I.O.B. Realty, Inc. (pg. 87)
a) Court issues a sua sponte sanction of D’s law firm for relying on its clients assertion that it had been selling pasta
sauce under its trademark before P when, under its previous representation, it was clear that P was unreliable.
b) Pennie and Edmonds might have acted in subjective good faith in believing the information in client’s affidavit,
but the proper standard for Rule 11(b) is objective reasonableness
i) Given the information that lead to the trial court’s preliminary injunction when prior counsel represented
client, P&E did not engage in a “reasonable inquiry under the circumstances”
2) In Re: Pennie & Edmonds LLP (pg. 91)
a) Court rules for sua sponte sanctions should apply harder to prove subjective bad faith standard (whether P&E
actually knew client was lying), instead of easier to prove objective bad faith standard (would a similarly situated
reasonable firm have known client was lying)
i) Subjective standard in sua sponte sanctions because there is no “safe harbor”
ii) Objective standard when sanction brought by motion because of “safe harbor”
b) Dissent says there is only a single mens rea requirement in Rule 11(b) with respect to whether there has been a
violation irrespective of how to procedurally apply sanction
i) Implied reasoning:
(1) Too hard to prove the subjective standard
(2) Judge unwilling to impose subjective standard – calling lawyer evil
3) Frantz v. United States Powerlifting Federation (pg. 99)
a) P files a claim against Ds in direct contravention of recent precedent without mentioning or distinguishing recent
precedent.
i) Regardless of whether D recognizes via motion the precedential grounds for dismissing P’s claim under 12(b)
(6), P is in violation of Rule 11(b) if it does not conduct “reasonable inquiry” into the law, find the
precedential roadblock, and make a “nonfrivolous” argument for overturning or distinguishing it
ii) A single claim sufficient under Rule 11 does not validate the pleading if it contains additional claims
insufficient under Rule 11
iii) To pass Rule 11, P need not plead facts certain facts, but P engage in a reasonable inquire to know certain
facts that make it reasonable to press litigation
(1) Rule 8, and the line of pleading cases tells you what facts satisfy notice pleading
 b) Model Code of Professional Responsibility, adopted by most bars, requires attorney to disclose adverse case law
to client, even if opposing counsel does not mention it
i) This also gives fair notice to D, and allows time for court to consider

OVERVIEW OF FAIR NOTICE / PREJUDICE STANDARDS IN PLEADING AND RESPONSES

 15(b)(2): Amendments by consent

o Consent (express or implied) = fair notice = no prejudice = late amendment allowed
 8(a)(2): Short and plaint statement of claim entitling pleader to relief
o Short and plain statement (Twombly/Iqbal) = fair notice = no prejudice = suit allowed
 15(c)(1): When an amendment relates back to the date of original complaint
o (b): same transaction or occurrence = fair notice = no prejudice = relates back (SOL avoided)

o (c): renamed party knew or should have known = notice or constructive notice = see above
 8(c): Forfeiture of late affirmative defense
o P would behave the same regardless = no prejudice = no forfeiture of affirmative defense

DISCOVERY
TOOLS AND MECHANICS

Oral Depositions Written Interrogatories Documents Physical Exams Admissions

Depositions

Rules(s) 27, 28, 30, 32, 45 31, 32, 45, 33 34, 45 35 36

Against Anyone Anyone Party Anyone Party, or in custody Party

Whom? or control of party

Pre-Reqs 1. Notice Same as oral depos None 1. Parties: none 1. Good cause None
2. Subp for non- 2. Others: subp 2. Court order
parties if needed 3. “In control”
3. Court order in
limited circs

Use at Trial Limited: Same as oral depos Fully admissible Fully admissible Fully admissible Conclusive
1. Impeachment except your own.
2. Unavailable Party can
3. Against adverse supplement partial
party use
4. Exceptional circs

Challenges Limited objections: Same as oral depos Can object and not Can object Dispute motion Can object and not
1. Note any for answer answer
later
2. Privilege; court
order
3. Terminate for
harassment

Limits 10 total (written 10 total (oral and 25 None None None

and oral) written)
Each: 1 7hr day
  Rule 26(a)(1): Required Disclosures – Initial Disclosure
o (A): What is to be disclosed
 (i): Identities (and contact information) of those with discoverable information, and subject of such
information, that disclosing party may use to support claims or defenses unless the use is solely for
impeachment
 (ii): Copy or description/location of documents/data in control/custody of disclosing party to be
used to support claims or defenses unless the use is solely for impeachment
 (iii): Computation of each category of damages
 (iv): Collateral insurance sources
o (B): Lists the types of proceedings exempt from initial disclosure rules
o (C): Initial disclosure must be done at or within 14 days after Rule 26(f) conference between parties
o (D): Parties served/joined at Rule 26(f) conference must disclose within 30 days of joinder/service
o (E): Parties must disclose based on information then reasonably available to it (incl. reasonable
investigation), regardless of whether other party has been disclosing appropriately
 Rule 26(d): Timing and Sequence of Discovery
o (1): Parties may not seek discovery through court until they have conferred in Rule 26(f) conference and
have attempted to obtain information from each other independent of court
o (2): Discovery methods can be used in any order and one parties discovery does not require another party to
delay its discovery
 Unless, on motion, court orders a specific order in the interest of witnesses, parties, justice
 Rule 26(e): Supplementing Disclosures and Responses:
o Parties must supplement disclosures and responses in discovery, in a timely manner if later found to be
incomplete or incorrect, or as ordered by court; duty to supplement extends to expert reports and
information given during expert’s deposition
1) Depositions
a) Pros:
i) Flexible because you are actually talking to deponent and can adapt/change-course as you go along
ii) Can usually use against adverse party at trial
iii) Rule 30(c)(2): Deponent can note an objection but must answer regardless except when:
(1) Claiming privilege
(2) Enforcing a court order
(3) Motioning to terminate for harassment
b) Cons:
i) Expensive
ii) Needs thorough advance preparation
iii) Rule 32: Limitations on use at trial:
(1) Cannot use against adverse party if insufficient notice, not admissible under FROE
(2) Cannot use against witnesses at trial except for impeachment or witness unavailable
c) Mechanics
i) When defending, do not volunteer, speculate, or interpret
ii) Rule 30(g): Adverse party must show after notice but must subpoena non-party witnesses
iii) To depose a corporation, you must notify corporation and then they designate
(1) May have to repeat multiple times before obtaining adequate designee
iv) Written depositions are especially useful for non-parties
2) Interrogatories
a) Pros:
 i) Cheap
b) Cons:
i) Inflexible: once sent can’t make changes; limits to total number sent
ii) Unfocused fishing expeditions
iii) Less information: burden on requestor to compel response and responder can object and not respond
c) Mechanics
i) Better suited to simple, objective questions
ii) Might use to get facts on a clear record even if they have already been disclosed
3) Admissions
a) Underused
b) Useful if specific and narrow
c) Used to authentic documents and establish undisputed facts
4) Documents
a) Requests to non-party governed subpoena limitations in Rule 45
b) “Too much/little” problem – start with most specific requests first and move to the more general
c) Specify documents broadly: electronic and hardcopy, data and documents
d) Electronic documents
i) Rule 34(b)(2)(D): Can object to form and/or substance of electronic requests
ii) Privileged or confidential issues
(1) Senders responsibility to take care not to turn over privileged information
(2) Recipients responsibility:
(a) Jurisdictions are split on this issue
(b) Some allow data mining, some prohibit data mining, etc.
(c) Sedona Institute develops model law on this subject
(d) Rule 26(b)(5)(B): requires recipient to return privileged material if notified by sender
5) Interactions
a) Common document request: “all documents used to answer interrogatories”
b) Based on document and interrogatory responses, you can select deponents and craft questions
c) Based on depositions you can further direct discovery
d) Rule 26(d)(2)(A): Parties decide the order of discovery, unless the ask court to decide for them
6) Responding to discovery requests
a) Want to be helpful if it does not hurt you so as to receive similar treatment
b) With damaging questions:
i) Object when possible but be wary of Rule 37 sanctions for frivolous objections
ii) Interpret questions narrowly and answer narrowly
iii) Bury opponent in paper if request poorly written (e.g. no date limits, overly vague, etc.)
7) Discovery abuse
a) Parties get away with abuse because burden is the party that does not like conduct to compel behavior

LIMITATIONS ON SCOPE: RELEVANCE AND PROPORTIONALITY

 Rule 26(b)(1): Scope in General (relevant)

o Material must be relevant to claims/defenses, or if good cause exists, relevant to subject matter involved in
action
 Relevant information need not be admissible if discovery is reasonably calculated to lead to
discovery of admissible evidence
 Rule 26(b)(2): Limitations on Frequency and Extent
 o (A): Number of depositions and interrogatories, and length of depositions set out in FRCP can be altered by
the court at any time
o (B): Specific Limitations on Electronically Stored Information (proportional)
 On a showing that electronically stored material is not readily accessible due to undue burden or
cost, a party may prevent discovery; even upon such a showing the court may compel discovery and
any related conditions considering the limitations of 26(b)(2)(C)
o (C): For all forms of discovery, court must limit frequency and extent (proportional):
 (i): If unreasonably cumulative or duplicative, or can be obtained from a more convenient, less
burdensome, or less costly source; or
 (ii): If the party seeking discovery has already had ample time to discovery; or
 (iii): If the burden outweighs benefit considering
 Needs of case
 Amount in controversy
 Parties’ resources
 Importance of issues at stake
 Importance of discovery in resolving issues
 Rule 26(c): Protective Orders
o (1): Party may motion for protection from discovery after a good faith effort to confer with opposing party
or the court may issue an order sua sponte to protect a party from annoyance, embarrassment, oppression,
or undue burden and expense including those listed in (A) – (H)
o (2): If motion is denied, the court may order discovery
 Rule 26(g): Signing Disclosures and Discovery Requests, Response, and Objections
o Provides the same Rule 11 sanction criteria, requirements, application (motion or sua sponte)
 “Reasonable inquiry”
 “Nonfrivolous”
 “Improper purpose”
 “Unreasonable or unduly burdensome”
 Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
o (a): Motion for an Order Compelling Disclosure or Discovery
 (1): May motion for order to compel after good faith effort to confer
 (3): Specific Motions
 (A): To compel required initial disclosures
 (B): To compel discovery response
 (5): Payment of Expenses; Protective Orders – If motion is granted, compelled party is liable for
attorney fees associated with motion; if motion is denied, then court may issue a protective order
under 26(c) and pay award attorney fees
1) Two ways a discovery dispute gets into court
a) Responding party files motion for protective order under Rule 26(c) or court issues one sua sponte
b) Requesting files motion to compel under Rule 37(a)(1)
2) Defendant receives unduly burdensome discovery request (documents, interrogatories, admissions)
a) Defendant must try to resolve issue with plaintiff as required
i) If unsuccessful, file a Rule 26(c) motion for protective order
b) Alternatively, defendant could object and not answer
i) If plaintiff does nothing then dispute is over
ii) If plaintiff wishes to compel an answer plaintiff must first try to resolve issue with defendant
iii) If unsuccessful then plaintiff files motion to compel under Rule 37(a)(1)
3) Discovery requests must be
a) Rule 26(b)(2)(B-C): Proportional (cost/benefit)
i) W.E. Aubuchon Co. v. Benefirst, LLC (pg. 127)
(1) P contracted with D for health insurance claims processing. P alleges D incorrectly processed resulting in
overpayment of employee’s health benefits. P first asked D to produce all 34,112 claims and then
narrowed request to 3000 claims. Trial court granted motion to compel, and COA affirmed.
(a) ESI discovery - Rule 26(b)(2)(B) – Is ESI “not readily accessible because of undue burden or cost”
(i) Zubulake v. UBS Warburg – undue burden or cost is a function of accessibility which is a function
of ESI format (listed in order of accessible to inaccessible)
1. Accessible: (1) active on-line data (e.g. hard-drives), (2) near-line data (e.g. robotic storage
devices such as optical disks), (3) offline storage/archives (e.g. removable optical disks or
magnetic tape media which can be labeled and stored in a shelf or rack)
2. Inaccessible: (4) backup tapes (e.g. devices like tape recorders that read data from and write
it onto a tape; sequential and not organized for retrieval of individual documents or files),
(5) erased, fragmented, or damaged data requiring significant processing for access
(ii) D’s ESI format is a server which is accessible, but
(iii) D’s method of storage on the format is of a type that would impose undue burden and cost
(2) But, if P shows good cause, and Rule 26(b)(2)(C) and Advisory Committee factors favor P, then court can
still order discovery – cost-benefit balancing test that favors P
(a) Rule 26(b)(2)(C): 7 factors
(b) Advisory Committee Notes to Rule 26: 7 factors
ii) If court finds that there is undue burden, it can conditionally compel production under Rule 26(b)(2)(B) by
order requesting party to pay all or part of cost of retrieving ESI
(1) Seven factors for cost-shifting listed in Zubulake
iii) ESI is treated differently because of two tiers
(1) Accessible: treated like non-ESI where burden is on responder to show disproportionality
(2) Inaccessible: burden on requester to show good-cause
iv) ESI two tiers leads to more cost-shifting for ESI vs. non-ESI
b) Rule 26(b)(1): Relevant to claims and defenses, or if good cause, relevant to subject matter of action
i) Sanyo Laser Products, Inc. v. Arista Records, Inc. (pg. 120)
(1) Record companies alleged that SLP and affiliated Does 1-10 conspired to infringed copyrights. Record
companies motioned to compel discovery of documents and deposition related to SLP/affiliate business
relationships. SLP filed motion for protective order attacking relevance.
(a) Court finds that given complaint names Does 1-10, discovery into affiliate business relationships is
relevant to claims and defenses
(b) Even if a conspiracy were not alleged, the discovery requests are consistent with notice pleading
standards that presume liberal discovery per reasoning in Swierkiewicz
(c) Even if discovery requests were not related to claims an defenses, good cause shown

LIMITATIONS ON SCOPE: WORKPRODUCT AND ATTORNEY-CLIENT PRIVILEGE

 Rule 26(a)(2): Disclosure of Expert Testimony

o (A): Mandatory disclosure of identity of testifying expert witness
o (B): Disclosure must include a written report if expert is retained or employed to provide expert testimony or
whose duties as employee of party regularly involves giving expert testimony including:
 Opinions to be expressed and basis, data used to form them, exhibits used to summarize or support
them, CV including qualifications/testimony/publications, compensation
 o (C): Disclosure to take place at least 90 days before trial, or if a rebuttable report, then 30 days after report
to be rebutted
 Rule 26(b)(3): Trial Preparation – Materials
o (A): Documents and Tangible Things – Usually cannot discover documents and tangible things prepared in
anticipation of litigation, by or for another party or its representative (including other party’s attorney,
consultant, surety, indemnitor, insurer, or agent) unless:
 (i): otherwise discoverable under Rule 26(b)(1) – non-privileged relevant to claims/defenses or good
cause related to subject matter; AND
 (ii): substantial need for the materials to prepare case and cannot obtain it from other sources
without undue hardship
o (B): Mental impressions, conclusions, opinions, or legal theories of party’s attorney or other representative
are protected from disclosure
o (C) Signed/certified previous statements are discoverable
 Rule 26(b)(4): Trial Preparation: Experts
o (A): Testifying experts may be deposed, and if a report is required under Rule 26(a)(2)(B), then only after
report’s filing
o (B): Non-testifying experts are not subject to discovery unless under Rule 35(b) for physical examinations or
under “exceptional circumstances”
 Rule 26(b)(5): Claiming Privilege for Protecting Trial-Preparation Materials
o (A): Material withheld for privilege that is otherwise discoverable must be done so with and express claim of
privilege, and a description of the information withheld (privilege-log) that will allow other parties to assess
the claim
o (B): Privileged material inadvertently disclosed shall be returned/destroyed/no-used by receiving party until
claim is resolved
1) Attorney Work Product Doctrine – qualified in that overwhelming need for information can overcome privilege
a) Hickman v. Taylor (pg. 137)
i) Attorney takes oral statements of witnesses, creates memorandums and notes, all in anticipation of
litigation, which P wishes to discover. District court orders production and Supreme Court reverses; deems
them privileged as work product.
(1) Creates work product doctrine later codified in Rule 26(b)(3)
(2) Decision recognizes the balance between liberal discovery required by notice-pleading and the
preservation of the adversarial system
(3) Discovery may be had of facts in “attorney’s files”, “written statements and documents” with a showing
of good cause, but implies “mental impressions and thoughts” are inviolate
(a) Good cause can’t be shown when part can obtain information himself such as interviewing the
witnesses or looking to the already public testimony in the US Steamboat Inspectors hearings
(4) FRCP Rule 26(b)(3) takes Hickman implications to protect
(a) Documents and tangible things unless otherwise discoverable (R&P) and there is good cause
(b) Mental impressions, conclusions, opinions, legal theories – “core” or “opinion work product” as
inviolate
b) The “in anticipation of litigation” has been broadly construed so as not to prejudice pro-active litigations
i) Although creation after suit makes position stronger
ii) Attaching an “prepared in case we get sued” memo or using “privileged and confidential” footers makes
position stronger
2) Attorney-Client Privilege (pg. 152, Note 1) – absolute and cannot be overcome with a showing of good cause
 a)Purpose is to “encourage full and frank communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and administration of justice”
b) Covers:
i) Confidential communications made by client to his lawyer for the purpose of obtaining legal advice
ii) Communication from attorney to his client when made in the course of giving legal advice
c) Requires the following elements:
i) Asserted holder of privilege is or sought to become a client
ii) Communication made with a member of a bar, or his subordinate, and is acting as a lawyer
iii) Communication relates to a fact of which attorney is informed
(1) By client
(2) Without the presence of strangers
(3) For the purpose of securing opinion on law or legal services or assistance in some legal proceeding
(4) Not for the purpose of committing a crime/tort
iv) Privilege has been claimed and not waived by client
d) Privilege extends to third parties who facilitate communication process between attorney and client
i) Non-testifying expert such as a business consultant hired to better understand client’s business who is
protected under attorney client privilege and Rule 26(b)(4)(B)
e) Waiver of information upon disclosure varies by jurisdiction
3) Expert Witnesses
a) Regional Airport Authority v. LFG, LLC (pg. 148)
i) P hires environmental consulting firm to remediate site it purchased from D. P provided attorney work
product to consulting firm who would appear as a testifying expert. Court rules that the work product
became discoverable after disclosure to consulting firm.
(1) Minority view: Haworth line - holds Hickman attorney work product privilege to work product provided
to testifying experts
(2) Majority view: requires disclosure of all documents including attorney client work product provided to
testifying experts
b) Rule 26(b)(4)(B): hired non-testifying experts are protected from discovery
i) Advisory committee notes suggest that informally consulted experts not hired are also protected
(1) To the extent work product is provided to informally consulted experts, it is discoverable

CASE MANAGEMENT
 Rule 16: Pretrial Conferences; Scheduling; Management
o (a) Purposes: expediting; establishing control so case will not be protracted for lack of management;
discouraging wasteful pretrial activity, improving quality of trial with more preparation; facilitating
settlement
o (b): Scheduling: Requires issuance of scheduling order after Rule 26(f) conference and submission of parties’
discovery plan per Rule 26(f); can only be modified for good cause with judge’s consent; order includes:
 Required: Limits on time to join parties, amend pleadings, complete discovery, file motions
 Permitted: Modify required disclosures, modify extent of discovery, provide for ESI disclosure,
include privilege agreements , pretrial conference dates, other stuff
o (c): Requires an individual be authorized to appear at a pretrial conference that can make stipulations,
admissions and speak to settlement; matters under consideration include
 Formulating or simplifying issues
 Amending pleadings
  Factual admissions/stipulations
 Appropriateness/timing of summary adjudication
 Controlling and scheduling discovery
 Identifying witnesses and documents, scheduling brief filing dates, or further trial dates
 Settling the case
 Disposing of pending motions
 Ordering a separate trial
 Other stuff
o (d): Pretrial Order: Court should issue an order reciting action taken in pretrial conference and should serve
as the order controlling the course of the action going forward
o (e): Court may hold a final pretrial conference to formulate a trial plan
o (f): Sanctions for failure to appear at conferences, obey scheduling orders, or participate in bad faith
1) Balancing of the adversarial model, the liberal discovery required by notice pleading, and due proces with a need to
manage the sprawling nature and increasing costs of complex cases
2) Tower Ventures v. City of Westfield (pg. 186)
a) P’s case dismissed for serial violations of the scheduling order
i) Does not matter if both parties tacitly agreed to conduct discovery at their own pace and that there was no
prejudice to D
ii) P’s attitude ignores courts independent interest in administering its own docket
iii) Other factors
(1) P failed to meet its own self-imposed deadline extension
(2) Multiple infractions
(3) Flaunted purpose of Rule 16
(4) Deterrence
3) There is tension between Rule 15(a)(2) giving leave to amend when justice requires it, and the good cause
requirement for modification of scheduling order that might have deadlines for amendment
4) Rule 16(e): Judges may (and most do) hold final pretrial conference (held after discovery) and should issue final
pretrial order
a) Order generally includes: stipulations of law/fact disputed issues of law/fact, witnesses, documents to be used
as evidence, objections to other parties evidence, witnesses, etc
b) Final pretrial order distills the discovery process – the heart of the case emerges in this order
c) Rule 16€: Order can only be modified to prevent manifest injustice
5) R.M.R. v. Muscogee County School District (pg. 198)
a) P’s witness not allowed to testify because not listed on final pretrial order even though P did not discover
witness until after order (perhaps due to D hiding witness) resulting in verdict for D
i) P claims importance of witness outweighs prejudice to D
ii) Not valid – P could have asked for continuance or mistrial to allow D time to prepare but only offered the
judge the narrow view
b) Harm in RMR greater than Venture, even though sanction in Venture harsher than in RMR – Tower can still
recover through malpractice while RMR cannot given the type of relief mother sought
i) Rules are trans-substantive in that they should apply the same in every case
(1) Judges already have the “manifest injustice” discretion

JUDGE AND JURY

Standards:
 Rules 50/56: no genuine issue of material fact/no reasonable jury (review on a de novo standard)
  Rule 59: against the weight of the evidence (reviewed on an abuse of discretion standard

1) Basic Division between the Judge and Jury

a) Judge determines law and instructs the jury
b) Jury finds facts and applies law to facts
c) Three ways the judge usurps jury’s role of fact finder and applier of law
i) Summary judgment
ii) Judgment as a matter of the law (JMOL)
iii) Judgment notwithstanding the verdict (JNOV)
d) Other times when the judge decides the facts:
i) Not entitled to a jury trial
ii) Waive your right – ask for a bench trial
e) When can you demand a jury trial? -7th Amendment questions
i) Plaintiff seeks more than $20 and as long as
ii) Case would have been tried at law and not equity when the 7 th amendment was writing in 1791 which
excludes
(1) Injunctive relief (equitable relief)
(2) Back pay (restitution – equitable relief)
iii) Or there is a statutory right to a jury, and
iv) Parties haven’t inadvertently waived right to trial
f) Both parties have right to invoke the right of jury trial

Summary Judgment (Rule 56) JMOL (Rule 50)

Timing Close of discovery Close of evidence (or for 50(b) JNOV, after verdict)
Standard No genuine issue of material fact; No genuine issue of material fact;
no reasonable jury could find for nonmoving party no reasonable jury could find for nonmoving party
Basis Discovery, affidavits, pleadings, documents attached to pleading Trial evidence, only that which jury would consider
Form: admissible/inadmissible Form: admissible
Substance: admissible Substance: admissible

SUMMARY JUDGMENT

 Rule 56: Summary Judgment

o (c)(2): based on the pleadings, discovery and disclosure materials on file, and affidavits, MSJ should be
granted if there is no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of the law
o (d): Case Not Fully Adjudicated on the Motion: Even if summary judgment is not rendered on the whole
motion, court should determine undisputed facts/issues and issue and order; judgment on liability along and
not damages is permissible
o (e): Affidavits supporting MSJ must set out facts based on personal knowledge that are in substance
admissible; affiant must be competent to testify to affidavit
 If MSJ is supported by an affidavit, opposing party must present responsive affidavit, not just rely on
pleading, otherwise MSJ should be awarded to movant
o (f): If party opposing the motion shows by affidavit that it cannot present facts essential to justify its
opposition (i.e. could not conduct adequate discover), judge can deny motion or order continuance to
decide motion after affidavits are obtained or depositions taken, etc
1) Celotex Corp. v. Catrett (pg. 258)
a) P claims D exposed husband to asbestos; D moves for summary judgment stating P failed to offer any evidence
for claim and failed to provide any admissible evidence during discovery supporting her claim. District court
 granted, and COA reversed because D did not offer evidence tending to negate a conclusion of exposure.
Supreme Court reverses and remands to determine admissibility of P’s evidence
i) Rule 56(c) – if there is no genuine issue as to any material fact the movant is entitled to summary judgment
(1) Movant need not offer affirmative evidence negating claims, just has burden to point out to judge that
there is no factual dispute and no evidence to support P’s claims. Reasoning other than plain meaning:
(a) Summary judgment can be issued sua sponte
(b) There was no “railroading” – Rule 56(f) allows denial or continuance
ii) Whether P’s showing, if reduced to admissible evidence, carries burden of proof is best decided by COA
2) See “summary judgment trilogy” on pg. 263, Note 3 for Matsushita and Poller – expansion of SJ
a) Anderson v. Liberty Lobby recognizes a change of standard from a non-movant’s showing of a “mere scintilla of
evidence” staving of SJ to requiring movant to offer some probative evidence such that a reasonable jury could
find for non-movant
3) Scott v. Harris (pg. 266)
a) Cop sued for “taking car out” instead of using safer “PIT” maneuver in high-speed car chase, where “taking car
out” resulted in severe injuries to P thereby violating D’s right to be free from excessive force during a seizure.
Supreme Court reverses denial of SJ.
i) Considering summary judgment:
(1) View facts in light most favorable to non-movant
(a) Usually means accepting P’s version of the facts
(2) Make all inferences light most favorable to non-movant
(3) (no credibility assessment – not explicit in case but implied)
ii) Then, to grant a MSJ, no reasonable jury could find for the non-movant
(1) In this case, since there is a videotape, judge need not accept the facts as P alleged them
(2) No reasonable jury could believe P given the videotape
(a) Videotape obviates need for credibility judgment validating judges summary judgment
(i) Stevens dissent says you can view the videotape differently

JUDGMENT AS A MATTER OF THE LAW

 Rule 50: Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
o (a): Authorizes motions for judgment as a matter of the law at any time before the case is sent to the jury
and authorizes grant if a reasonable jury would not have a legally sufficient evidentiary basis to find for the
non-movant
o (b): If 50(a) motion is not granted, the movant may renew the motion under 50(b) within 28 days of judge’s
entry of jury’s verdict along with a motion for new trial under Rule 59 to which the judge may
 Deny and let verdict stand
 Order a new trial
 Grant motion and direct the verdict
o (c): Any motions for a new trial accompanying a granted 50(b) motion must be ruled on conditionally in case
the appellate court reverses or vacates the 50(b) grant
o (e): If a court denies motion for judgment as a matter of law, the prevailing party can assert grounds in the
court of appeals entitling it to a new trial should the court of appeals find the denial of motion was in error
1) Standard for summary judgment is the same as the standard for JMOL (and JNOV)
a) Reeves v. Sanderson Plumbing Products, Inc. (pg. 273)
i) COA reverses trial court denial of D’s 50(b) motion of JMOL. Supreme Court reinstates the jury’s verdict.
(1) In considering motion, judge must:
(a) Draw all reasonable inferences in favor of the nonmoving party
 (b) Not make credibility determinations nor weight the evidence (Liberty Lobby)
(2) P offered sufficient evidence to disbelieve D’s nondiscriminatory reasons for firing P, and sufficient
evidence of age-based animus that reasonable jury could find in its favor
b) However, summary judgment is granted much more frequently (see trilogy) and its granting is much more
predictable in the way it is granted
2) Limitations on Rule 50(b) and appeals
a) Can only file Rule 50(b) motion if
i) Have already filed a Rule 50(a) pre-verdict motion
ii) It is on the same grounds (insufficiency of the evidence) as the 50(a) motion
iii) Can only appeal trial court verdict if appellant has filed a Rule 50(b) or 59 motion
(1) Unitherm v. Swift-Eckrich, Inc. (pg. 287)
(a) COA inappropriately ordered a new trial on the grounds of insufficient evidence after appellant
failed to file post-verdict Rule 50(b) motion or Rule 59 motion
(i) New trial or directed verdict calls of judgment in the first instance (trial court judge)
(ii) Thus for fairness and to reduce prejudice to appellee, the trial court judge should first have the
opportunity to decide new trial or directed verdict before the COA
(b) A party cannot appeal a denial of Rule 50(a) motion because it is not a final judgment
b) Reasons for grants of 50(a) after denials of for 50(b)
i) Judge believes the jury will agree with his assessment and would rather have the decision come from jury
ii) If COA reverses grant of 50(b), there is already a jury result to reinstate – new trial not needed

JOINDER
CLAIMS

 Rule 18(a): A party may join to a claim, counterclaim, crossclaim, or third-party claim, as independent or alternative,
as many claims as it has against the opposing party
 Rule 13: Counterclaim and Crossclaim
o (a): Compulsory Counterclaim
 Must plead all counterclaims arising out of the same transaction or occurrence that is the subject of
the opposing party’s claim as long as it does not require adding a party over which the court does
not have personal jurisdiction
o (b): Permissive Counterclaim
 May plead any counterclaim
o (g): Crossclaim Against a Co-party
 May plead a claim against a co-party if it arises out the same transaction or occurrence that is the
subject matter of the original action, or of a counterclaim, or if the claim relates to any property that
is the subject matter of the original actions
o (h): Rules 19 and 20 govern the joinder of parties to a counterclaim or crossclaim
 Rule 42: Judge may consolidate claims into a single trial or may separate claims into separate trials
1) Test for whether a transaction arises out of the same transaction or occurrence:
a) Painter v. Harvey (pg. 365)
i) Cop counterclaims against P for defamation/libel, after P sued cop for violation of federal excessive force
statute and went to press about cop’s actions
ii) If counterclaim is compulsory (i.e. arises out of the same transaction or occurrence) then libel counterclaim
has supplemental jurisdiction
iii) Test for same transaction or occurrence is one of “evidentiary similarity” – not bright line test – “litmus”
(1) Are the issues of fact and law raised in the claim and counterclaim largely the same?
(2) Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory
counterclaim rule?
(3) Will substantially the same evidence support or refute the claim as well as the counter?
(4) Is there any logical relationship between the claim and counterclaim?
 iv) Uses a looser “related to” test rather than “arises out of the same transaction or occurrence”
(1) This mirrors the often used “logical relationship” test for supplemental jurisdiction so a federal court
automatically has jurisdiction over compulsory counterclaims
(2) This is where one can make counterarguments to defeat jurisdiction
(a) Going to the press is a different transaction or occurrence than the arrest/accident
2) If a compulsory counterclaim is not plead, the claim is forever waived/precluded
3) “Same transaction or occurrence “ language is interpreted differently for different purposes
a) Broader in §1367 when conferring supplemental jurisdiction (“same case or controversy”)
b) Narrowly in Rule 13(a) when considering preclusion
i) Creates a tension where permissive counterclaims (in order to prevent preclusion) get supplemental
jurisdiction (under “same case or controversy” language)
c) Somewhere in the middle in Rule 15(c)(1)(B) depending on judge’s view of importance of SOL
4) Using Rule 18(a) to join claims, that are unrelated to opposing party’s original claim, to a crossclaim are is allowed in
only half the jurisdiction because it flaunts the “transactionally-related limitations of crossclaims under Rule 13(g)

PARTIES

 Rule 20: Permissive Joinder of Parties

o (a)(1): Plaintiffs may join if they assert right to relief jointly, or with respect to or arising out of the same
transaction, occurrence , or series of transactions, and a question of law or fact common to all plaintiff’s will
arise in the action
o (a)(2): Defendant requirements are the same plaintiff requirements
 Rule 19: Required Joinder of Parties
o (a)(1): A party is required if:
 Court cannot accord complete relief ; or
 Impair or impede a third-party’s ability to protect its interest; or
 Create multiple and inconsistent obligations
o (a)(2): If a person has not been joined then the court must order party to join
o (b): If joinder is not feasible then court should decide whether to dismiss or let case continue based on the
following factors
 Prejudice to absent parties or existing parties
 Extent to which prejudice can be lessened by
 Protective provisions in judgment
 Shaping the relief
 Other measures
 Adequacy of judgment rendered in absence
 Adequacy of remedy if case were dismissed
1) Rule 20 adds “series of transactions” to “same transaction or occurrence” language – more broad than Rule 13(a)
a) More efficiency gains than harms
b) Rule 20 is permissive and does not preclude parties from future litigation, while Rule 13(a) has preclusive effects
2) Rule 19 first asks if absent party is (a) necessary, and then if unavailable, (b) “indispensible”
a) Makah Indian Tribe v. Verity (pg. 388)
i) Makah challenged federal regulation allocation the ocean harvest of salmon between various parties and
the validity of the procedures used to determine their quota. District court dismissed both counts for failure
to join a necessary and indispensable party. Supreme Court affirms reversal for quota claim but not
procedure claim.
ii) Necessary, yes:
 (1) Complete relief: Court rules that complete relief not possible because it would steal from other’s share.
Not correct because court could simply order a greater share. Rare for a court to find that complete
relief is not possible
(2) Impair third party interest: Yes, by awarded a greater piece of pie to the Makah, all absent parties (other
tribes, etc.) get smaller share. Court fails to consider the possibility of increasing the size of whole pie.
Classic case of impairment of third party interest
(3) Multiple inconsistent obligations: Yes, federal government has treaty obligations with other tribes that
would be inconsistent with an award of a greater share to the Makah
iii) Indispensible, yes:
(1) Prejudice to absent or present parties: Other tribes receive less fish and Secretary subject to multiple
inconsistent obligations
(2) Shape relief to lessen prejudice: Not possible because resource is limited and court cannot change
treaties with other sovereigns
(3) Adequate relief absent necessary parties: Not possible because any relief would be at expense of
necessary parties
(4) Alternative forum: No other adequate forum but not enough to outweigh other factors
iv) Suit must be dismissed because the necessary parties cannot be joined and are indispensible

PARTIES: IMPLEADER

 Rule 14(a): Defendant, as third-party plaintiff, may implead at non-party third-party defendant for derivative liability
within 14 days of its original answer, or if later, with the courts leave
o (2): Third-Party Defendant’s Claims and Defenses
 (A): Against third-party plaintiff: must assert defenses under Rule 12
 (B): Against third-party plaintiff: must assert compulsory counterclaims under Rule 13(a), may assert
permissive counterclaims under Rule 13(b)
 (B): Against another third-party defendant: may assert crossclaim under Rule 13(g)
 (C): Against original plaintiff: may assert any defense that the third-party plaintiff has
 (D): Against original plaintiff: may assert any claim arising out of the transaction or occurrence that is
the subject matter of the plaintiff’s claim against the third-party plaintiff
o (3): Original plaintiff may assert against third-party defendant any claim arising out of the transaction or
occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff
 Then, third-party defendant must assert any defense under Rule 12, any compulsory counterclaim
under Rule 13(a), and may assert any counterclaim under Rule 13(b) and crossclaim under Rule 13(g)
against the original plaintiff
o (5): Third-party, as fourth-party plaintiff, may implead a non-party fourth-party defendant for derivative
liability
 Rule 14(b): Plaintiff may implead a third-party for derivative liability
1) Lehman v. Revolution Portfolio LLC (pg. 377)
a) Rule 18(a) allows joinder of as many claims as claimant has to any properly situated claim, counterclaim,
impleader, crossclaim, etc.
b) FDIC’s impleader of Roffman was permissive and thus would not have precluded the claim, but FDIC risks having
the issue precluded
c) Rule 14 is structured to balance the interests of the defendant to avoid incurring costs he is not liable for and
the interest of the plaintiff to remain in control of the structure of the lawsuit
i) Rule 19 and 20 are for the plaintiff only
ii) Rule 14 requires transactional relatedness
2) Impleader is only fore derivative liability: if defendant is liable to plaintiff, then third-party defendant has to pay
plaintiff for all or part of what defendant owes
a) Not that third party defendant is independently liable to third-party plaintiff
b) Not that third party defendant is directly liable instead of or in addition to plaintiff
3) Impleader creates no substantive obligations – just a procedural obligation – not a finding of liability
a) Rule 13(g) can be used for derivative liability for those already parties
4) Asher v. Unarco Material Handling, Inc. (pg. 382) – 6th circuit
a) A sues B and C. C impleads D. B (original defendant) crossclaims against D (third-party defendant)
b) Court dismisses crossclaim under the reasoning that original defendant B is not a co-party of D under a plan
reading of Rule 13(g); co-parties must be of “like status”
i) Follows the reasoning of Murray and International Paving Systems
(1) Inconsistent and confusing if some defendants need leave of court to serve third-party complaints under
Rule 14, while other original defendants can crossclaim against that third-party defendant without leave
c) Most courts follow the Murray and IPS rule, however other circuits define co-parties as anyone that is not an
opposing party
i) Thomas v. Barton Lodge II (5th Circuit) – nonsensical that 14(a) allows a defendant to bring in a nonparty but
defendants cannot crossclaim against those who are already parties
(1) Ridiculous that, instead, the original defendant would have to bring a separate suit – duplicative
ii) Georgia Ports Authority
5) Rule 14(a)(2)(D) when there is no original jurisdiction: the rule allows claims by third party defendant against original
plaintiff because §1367(b) does not expressly prohibit the claim, while §1367(b) expressly prohibits claims by
plaintiff against third party defendants (codified Kroger)
6) Rule 14(3) when there is no original jurisdiction: prior to §1367, common law judges reasoned that counterclaims by
P are allowed against third party defendant because they were not a result of P’s manipulation of jurisdiction as in
the Kroger backdoor claims, however courts are split on whether §1367 has changed this
7) Claims between defendant and fourth party defendant are not crossclaims, but using the Asher plain reading, the
claims are not allowed, while the non-Asher logic allows the claims because the relationship between P and third
party defendant is the same as between defendant and fourth party defendant

PRECLUSIVE EFFECT OF JUDGMENTS

1) Claim preclusion (res judicata) (merger and bar):
a) Cannot re-raise claims that
b) Were litigated or should have been litigated
c) Claim merged with judgment; only action party can take on claim is to enforce judgment; claim barred
d) Claim preclusion applies to a single P-D1 pair, not between P-D2 on a related claim
e) Rush v. City of Maple Heights (pg. 325)
i) P successfully sues town for damage to motorcycle due to the negligent pothole maintenance; P brings a
subsequent cause for personal injuries resulting from action
ii) Court rules that the personal injury claim arises
2) Issue preclusion (direct or collateral estoppel):
a) Cannot re-litigate issues that were previously actually litigated and necessary to the judgment
b) Issues are legal conclusions and facts, not claims and elements of claims
c) Direct estoppel: same cause of action
d) Collateral estoppel: different cause of action
e) Parklane Hosiery Co. v. Shore (pg. 335)
 i) Blonder-Tongue Labs. V. University of Illinois Foundation (pg. 337): removed mutuality requirement of issue
preclusion (i.e. new rule is that issues can have preclusive effects even if both parties to the suit were not
parties to original litigation of issue)
(1) Allows defensive non-mutual collateral estoppel, where plaintiff attempts to re-litigate issue against a
new defendant, who successfully moves for summary judgment claiming that P is collaterally estopped
since he already litigated and lost on the issue
ii) This case permits non-mutual offensive collateral estoppel at the discretion of the court as long as new
plaintiff could not have easily joined original litigation of issue against the defendant and there would be no
prejudice to the defendant, where prejudice is:
(1) If defendant did not vigorously defend original suit because of the reasonably foreseeability of
subsequent suits (i.e. defendant not fully heard in original suit)
(2) Multiple inconsistent judgments for defendant
(3) Different procedural opportunities
(4) Different burdens of proof
(5) Right to jury trial in second suit if judge decided case in first suit will not work in Federal Court anymore
because of Park Lane; might work in state court
iii) Rationale: do not want a potential plaintiff to “wait and see” what happens in a suit against a defendant,
and then initiate litigation if there is a favorable outcome
f) Overall rationale to void the application of issue preclusion:
i) Party against whom preclusion is sought could not, as a matter of law, have obtained review of the
judgment in the initial action, OR
ii) The issue is one law, and (a) the two claims are unrelated or (b) there is a change in the law; OR
iii) A new determination of the issue is warranted by difference in the quality or extensiveness of the
procedures followed in the two courts, OR
iv) The party against whom preclusion is sought had a significantly heavier burden of persuasion the first time,
OR
v) Clear and convincing need for a new determination because (a) potential adverse impact on public interest
or outside party’s interest, (b) not sufficiently foreseeable at the time of the initial action that this issue
would arise, (c) because the party sought to be precluded did not have an adequate opportunity or incentive
to obtain a full and fair adjudication of the initial action.

PERSONAL JURISDICTION AND VENUE

INTRODUCTION

For out of state defendants, need:

1) Requirements
Long arm AND constitutionality
a) Notice
Rule 4(k) gives fed court jx if state in
b) State Long Arm Statute
which fed court resides would have jx
c) Constitutional Authority
If long arm → constitutional limits,
i) Citizenship; or
then state court’s requirements
ii) Contacts + Fairness; or
identical to fed
iii) Personal Service in Foreign State - "tag jx"; or
iv) Consent
2) Pennoyer v. Neff: Cannot exercise jurisdiction if not a citizen, unless served in state, or suit is in rem or quasi in rem;
overruled by
3) International Shoe Co. v. Washington (pg. 420)
a) Employer was not contributing to WA’s unemployment fund. Employer is a non-consenting, non-citizen, out-of-
state, defendant sued by WA and not served within the forum state of Washington. Employer employed
salespersons who resided in WA who sold employer’s shoes in WA but had no offices/stores in WA.
b) Court rules that to exercise jurisdiction over defendant, there must be
i) Minimum contacts with the forum state
ii) Fairness (“does not offend traditional notions of fair play and substantial justice”)
c) Sets up a framework for deciding jurisdiction:
Single Contact Minimum Contacts Systematic and Continuous
Specific JX Maybe Yes Yes
General JX No No Yes
d) Type of jurisdiction
i) Specific: claim arises out of contacts with forum state
ii) General: claim is unrelated to contacts with forum state
e) Introduces language: defendant has exercised the privilege of conducting activities in the forum state;
foreshadows purposeful availment

MINIMUM CONTACTS

1) Purpose of requiring minimum contacts:

a) WWVW (pg. 441): protect D’s personal liberty and enforce respect for sovereignty of states
b) Insurance Corp of Ireland (pg. 449): not a matter of state sovereignty but individual liberty
c) See pg. 462, Note 6 for a discussion on whether state sovereignty and/or personal liberty is implicated in
personal jurisdiction
2) Does a single contact constitute “minimum contacts”?
a) McGee v. International Life Insurance Co. (pg. 436)
i) YES. Policyholder purchased insurance from an AZ company; taken over by a TX company. The TX company
reached out to CA resident with a reinsurance contract offering to insure him under the terms of policy held
with AZ company. CA resident accepted and paid premiums by mail for two years until death. Neither AZ
company nor TX company had offices, agents or other customers in CA.
b) Hanson v. Denckla (pg. 437):
i) NO. Donner, while a PA citizen, created a DE trust of which all but $400,000 would pass to two daughters.
$400, 000 would pass to two grandchildren of a third daughter. Donner changes domicile to FL where she
continued correspondence with DE trust for administration purposes until her death. Two daughters, who
are FL citizens, sue trustee in FL court to block flow of money the grandchildren. Grandchildren sue in DE
court to declare trust valid. Supreme Court rules defendant’s single contact with FL is not enough.
c) Similarities between McGee and Hanson: Sherry thinks they are very similar
i) Continued correspondence (paying premiums and administrating trust) between forum state and defendant
ii) Claims arise out of defendant’s only contact with forum state
iii) Defendants could have both chosen to sever the ties with the party from which contacts gave rise to claim
d) Differences between McGee and Hanson: Sherry doesn’t think they are distinguishable
i) In, McGee, defendant reached out to forum state (according to Hanson, defendant “purposefully availed
itself” of the privilege of doing business in the forum state → invoking benefits and protections of its laws
ii) In Hanson, contacts with forum state were due to a unilateral move by Donner to FL of which defendant had
no control
3) Stream of commerce
a) World-Wide Volkswagen v. Woodson (pg. 439)
i) Defendants are NY citizens and NY tri-state area distributors of Audis. Plaintiffs are NY citizens who
purchased an Audi in NY from defendants and suffered a products liability related gas tank accident in OK.
Plaintiffs sue NY citizens in OK.
ii) Supreme Court rules that OK does not have jurisdiction:
(1) Merely fortuitous that the Audi ended up in OK – defendants only sell in the NY tri-state area
(a) No purposeful availment of the privilege to do business in OK
(b) Analogous to unilateral move of Donner in Hanson
(2) Jurisdiction in a stream of commerce theory ends with the state of which final consumer is a citizen
(a) Defendant’s sold the vehicle to final consumers in the NY tri-state area
iii) “Audi problem” – if the court were to find jx in this case it would have to do so under a specific jurisdiction
and minimum contacts analysis since contacts are not systematic and continuous (physical presence); thus
to get to specific jurisdiction, courts might stretch:
(1) If Audi sells a lot of cars in OK, but not the car that plaintiff’s bought in NY through defendants courts
might reason that claim is related to contacts even if it does not arise out of contacts
b) Asahi Metal Industry Co. v. Superior Court (pg. 453)
i) Asahi (Japan) manufacturers valve assemblies that it sells to Cheng-Shin (Taiwan) who uses them in their tire
tubes, which Asahi then sells in CA to for use in motorcycle tires. Plaintiff suffered a motorcycle accident for
which it sued Cheng-Shin. Cheng-Shin “impleaded” Asahi. Asahi is aware that its products end up in CA.
Defendant settled with Cheng-Shin and CA jurisdiction over indemnification suit between Cheng-Shin and
Asahi in dispute.
ii) O’Connor and 3 justices find no minimum contacts:
(1) In addition to placing product in stream of commerce, defendant needs to purposely avail himself of the
privilege of doing business in forum state – must direct actions at forum state.
(2) Likens this to the unilateral actions of plaintiff in WWVW, but is inconsistent in that here there is no
“fortuity”, the products stream of commerce ended with its sale in CA
iii) Brennan and 3 justices find minimum contacts:
(1) Only require a stream of commerce (ending with final consumer) and some awareness that product is
marketed in forum state
(2) No purposeful availment but awareness of the receipt of privileges and protection of forum state laws
(3) Consistent with WWVW
iv) However, all justices reverse the finding of jurisdiction because it is not fair
(1) Factors:
(a) Burden on defendant
(b) Interests of forum state
(c) Plaintiff’s interest in obtaining relief
(d) Other sovereignty-related interests that might not be relevant:
(i) Interstate judicial system’s interest in obtaining most efficient resolution of controversies
(ii) Shared interest of the several states in furthering fundamental substantive social policies
(2) Big burden on foreign defendant, state of CA has no interest, plaintiff has no interest to litigate in CA,
international context not bearing on the interests of the several states
 c) Other cases on minimum contacts
i) Keeton v. Hustler Magazine (pg. 450)
(1) Plaintiff successfully sued an OH magazine in NH because the small percentage of the OH magazine that
circulated in NH constituted “deliberate exploitation of the NH market” and thus could reasonably
expect to be hailed into court. P chose NH because SOL on libel had not expired. NH has interest in
“discouraging deception of citizens” even if this plaintiff was not a citizen.
ii) Calder v. Jones (pg. 451)
(1) Plaintiff successfully sued FL citizens in CA for libel because CA was the “focal point of both the
[newspaper] story and of the harm suffered” and thus jurisdiction is proper based on the “effects” of the
FL conduct in CA.
iii) Burger King Corp. v. Rudzewicz (pg. 451)
(1) P successfully sued MI citizens in FL because defendant reached out to FL through a contract, attendant
negotiations and future business relationships, all of which is indicative of modern commercial life that
obviates prior reliance on physical presence for jurisdiction.
4) Internet based companies
a) Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (pg. 463)
i) Plaintiff sues for trademark infringement in CA. Court held that web site sufficient for CA jurisdiction
because it sought and conducted business with CA residents. Trademark infringement arose out of the
transfer of files to forum state.
ii) Sliding scale for jurisdiction over websites:
(1) Proper jurisdiction (Zippo, Compuserve)
(a) “clearly does business over internet” – “e-commerce”
(b) “knowing and repeated transmission of files”
(2) Debatable jurisdiction (Maritz)
(a) “interactive website”
(b) “exchange information with host”
(c) Depends on:
(i) Level of Interactivity
(ii) Commercial nature of website
(3) Improper jurisdiction (Bensusan)
(a) “simply post information that is accessible”
(b) “passive website” (now includes downloading of files)
iii) Amazon.com probably fits into middle category for a state where it has fortuitously not shipped any books
iv) For middle ground consider whether website targets the forum state specifically
v) Purposeful avoidance of a forum state might make the website passive for that forum

GENERAL JURISDICTION AND PRESENCE

1) Bird v. Parsons (pg. 471)

a) Plaintiff sues defendant in OH court for trademark infringement by registering a domain name to which plaintiff
has a trademark. Court finds a proper exercise of specific jurisdiction through minimum contacts.
b) Defendant’s website is fully interactive for purposes of Zippo, but does not fit the “systematic and continuous”
requirements of general jurisdiction
i) Helicopteros Nacionales de Colombia, S.A. v. Hall (pg. 473): sending CEO to TX to negotiate contracts,
drawing on checks issued by TX bank, purchasing helicopters from TX, and sending personnel to TX for
training is not enough for “systematic and continuous” contacts – need a physical presence in TX
 ii) Perkins v. Benguet Consolidated Mining Company (pg. 473): non-resident defendant corporation maintained
an office in OH and maintained an OH bank, rendering its contacts “systematic and continuous”
c) However, court allows jurisdiction by using a lenient standard that the claim of trademark infringement had a
substantial connection to the contacts with OH, even though they did not arise from the contacts – courts are
divided on when specific jurisdiction is proper:
i) “Proximate cause” test: most restrictive in that contacts must be but-for and proximate cause of claim
ii) “But-for cause” test: middle ground in that the contacts must at least be the “but-for” cause of claim
iii) “Substantial connection” or “discernable relationship” test: least restrictive in that it blurs specific and
general jurisdiction – no causation required
2) MIT v. Micron and Gator.com Corp. v. L.L. Bean Inc. seem to indicate a trend that will abolish the physical presence
requirement eventually
a) Doing significant business in the forum state enough for general jurisdiction when there is no physical presence
3) Does in rem or quasi in rem status preclude need for International Shoe test?
a) Pennoyer: Attaching property prior to suit is enough to confer jurisdiction
b) Shaffer: quasi in rem is no longer enough on its own to confer jurisdiction
i) Overturns Pennoyer
ii) Must apply minimum contacts plus fairness test to both in persona and quasi in rem suits
(1) Quasi in rem will not substitute for “physical presence” in systematic and continuous requirement
c) Lower courts split over meaning of Shaffer re: in rem
i) Majority view: since suit is about the land itself, specific jurisdiction will be proper and property ownership
will satisfy minimum contacts
4) Burnham v. Superior Court (pg. 477)
a) Unanimous holding the personal service in forum state confers jurisdiction but there is no majority opinion
b) Scalia + 3: interprets personal service through historical pedigree of Due Process Clause (territorial limits)
making personal service in the forum state a hard and fast rule
c) Brennan + 3: interprets personal service in forum state through a contemporary lens of fairness and Due Process
which allows each application of the personal service rule to vary based on contemporary notions of fairness
5) Exceptions
a) Cannot be fraudulently induced to travel to forum state for purposes of service
b) No airplane “tag” jurisdiction allowed
c) Does not apply to corporations
d) Most states have devised “special appearances” allowing parties to appear without being served

SUBJECT MATTER JURISDICTION

Federal courts get subject matter jurisdiction by:
1. Federal Question (statutory or constitutional)
CANNOT WAIVE CANNOT WAIVE
2. Diversity (diverse citizenship, > 75K)
CANNOT CONSENT 3. Supplemental Jurisdiction (transactionally related) CANNOT CONSENT
4. Removal

FEDERAL QUESTION JURISDICTION

 28 U.S.C. § 1331: District courts have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States
o State courts have concurrent jurisdiction unless the Congress has created exclusive jurisdiction over an area
1) Louisville & Nashville Railroad Co. v. Mottley (pg. 527)
a) “Well pleaded complaint” rule: federal question must be necessary to the complaint
i) If complaint would not satisfy a 12(b)(6) motion without the federal question, then it is necessary
ii) Federal question cannot solely be an anticipated defense
b) Case interprets §1331, NOT Article III of the constitution, which contains more broad “arising under” language
that would encompass anticipated defenses for federal question jurisdiction
i) Congress could change the well pleaded complaint rule by amending §1331
c) Efficiency reasons seem to drive the decision
2) If the federal question stands on its own (i.e.it is not incorporated in a state cause of action)
a) Newburyport Water Co. v. Newburyport (pg. 548)
i) Jurisdiction exists unless claim is “so attenuated and unsubstantial as to be absolutely devoid of merit”
ii) Very lenient standard
3) If a federal question embedded in a state cause of action, it must be sufficient to confer federal jurisdiction
a) Embedded federal questions satisfy the Mottley “well pleaded complaint” rule to the extent that the claim turns
on a question of federal law – federal question is necessary, but Mottley does not decide whether the
embedded federal question is sufficient
b) Smith v. Kansas City Title & Trust Co. (pg. 532)
i) Plaintiffs successfully sued company in federal court for purchasing bonds that were unauthorized by state
law because the federal government issued them in violation of the constitution.
ii) “the right to relief depends on the construction or application of” federal law
c) Moore v. Chesapeake & Ohio Railway Co. (pg. 532)
i) Plaintiff unsuccessfully sued in federal court for tort where plaintiff’s ability to recover (whether
contributory negligence applied) hinged on whether defendant violated the federal Employee Liability Act
ii) Court could have used anticipatory defense reasoning of Mottley but instead characterized complaint as
negligence per se where the fact that a state statute brings within its purview a duty imposed by a federal
statute does not constitute a suit arising under the laws of the United States
d) Merrell Dow Pharmaceuticals Inc. v. Thompson (pg. 533)
i) Plaintiffs alleged in Count IV negligence per se for the violation of the Federal Food, Drug, and Cosmetic Act
for which the defendant’s unsuccessfully removed to federal court
ii) Stevens and five justices
(1) Federal jurisdiction is only appropriate if considerations of “congressional purpose and the federal
system” indicate that the federal question is “substantial”. The lack of a private federal cause of action
under the FDCA is “tantamount to a Congressional conclusion” that the embedded federal question is
not substantial
iii) Brennan and four justices
(1) There should always be federal jurisdiction over embedded federal questions so long as the federal
question is necessary to the claim (satisfies Mottley)
(a) Using a “nature” test (one way to distinguish Smith from Moore) is too ad hoc, rather Moore should
be overruled – no one relies on it – vitality of Smith continues
(2) Concluding no federal jurisdiction because of no private cause of action is nonsensical
(a) Same logic would make state court private enforcement improper
(b) Implied accuracy/coordination rationale for relying on public enforcement strengthens case for
federal private enforcement
(c) Federal courts already interpret the FDCA when FDA sues private entities – FDA has not
independent enforcement authority
 (3) Just because a plaintiff has multiple theories of identical recovery (state and federal), does not make the
federal question unnecessary to the complaint per Mottley, rather, the Mottley test should be applied to
each claim in isolation
e) Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing (pg. 542)
i) Federal jurisdiction is appropriate if state-law claim necessarily raises a state federal issue, actually disputed
and substantial, which a federal forum may entertain without disturbing an congressionally approved
balance of federal and state judicial responsibilities
(1) Does not “change” Merrell Dow
(2) Merrell Dow: no private federal cause of action and no preemption of state remedies for misbranding
was just a “missing welcome mat”
ii) This result seems driven by the fact that the situation is so rare that it will not attract a “horde” of filings
f) Implications for who “decides” jurisdiction:
i) Merrell Dow majority: United States Congress
ii) Merrell Dow dissent: State legislators or Courts
iii) Grable court: Federal Courts

Cause of Action Law to Apply (“Question”) Federal Jurisdiction?

Smith State Federal Yes
Moore State Federal No
Shoshone Federal State No
Merrell Dow State Federal No
Grable State Federal Yes

DIVERSITY JURISDICTION

 28 U.S.C. § 1332(a): diversity jurisdiction lies when amount in controversy exceed $75K and is between:
o Citizens of different states; or
o Citizens of US state and a foreign state
o Citizens of different states and in which citizens of foreign states are additional parties
o 1603(a) foreign state as a plaintiff and citizens of a state or different states
 28 U.S.C. § 1332(b): if award is less than $75K, without regard to setoff or counterclaims, court may deny costs to
plaintiff and may impose costs on plaintiff
 28 U.S.C. § 1332(c): citizenship of corporations and estates of decedents
o State of incorporation and its primary place of business,
o In cases where insured is not a party-defendant, insurance companies are additionally citizens of the state of
which the insured is a citizen
o Estates of decedents are citizens of the state of which decedent is a citizen
 28 U.S.C. § 1332(e): states in include
o the Territories
o District of Columbia
o Commonwealth of Puerto Rico
1) Citizenship
a) Strawbridge v. Curtiss (pg. 549): held that §1332 requires complete diversity in that no plaintiff can be from the
same state as a defendant
i) State Farm Fire & Cas. Co. v. Tashire (pg. 549): complete diversity does not apply to interpleader
ii) Court has upheld targeted use of minimal diversity as valid under Article III in §1335, §1369 (single accident
causing more than 75 deaths), §1332(d) (class actions)
 iii) Impleaded parties do not destroy diversity; if so, defendants could destroy jurisdiction “at will”
b) Sheehan v. Gustafson (pg. 550)
i) Citizenship is a matter of domicile where party seeking to establish citizenship must establish that at the
time of commencing suit there is:
(1) Presence in the purported state of domicile; and
(2) An intention to remain there indefinitely
ii) Driver’s license, vehicle registration, filing of tax returns, ownership of property, voter registration act as
evidence to establish citizenship through the test
iii) Requires courts to strictly construe §1332; burden on party seeking federal jurisdiction to show by a
preponderance of the evidence that the parties are diverse
(1) In toss-ups, there is a presumption against federal jurisdiction
c) Other issues
i) Must go back to last state where court is certain of citizenship
ii) Must have a physical presence, intention to move to state X, is not enough if no presence yet in X
iii) Those under 18 cannot legally have an intent to move
iv) For a transient person, consider no intent to stay vs. no intent to leave
d) Hertz Corp. v. Friend (supp pg. 45)
i) A corporation has a single principal place of business that is usually the state of its corporate headquarters
provided the headquarters is the center of direction, control and coordination of the corporation
ii) Simplifies the complex “nerve center”, “business activity”, and “center of gravity” tests
e) Citizenship and thus diversity jurisdiction is purportedly about reducing prejudice to out-of-state defendants
i) In-state defendants cannot remove
ii) However, plaintiffs can file wherever they want
f) Unincorporated associations
i) Carden v. Arkona Assocs. (pg. 557): unincorporated associations have the citizenship of each member
ii) Wise v. Wachovia Secs., LLC (pg. 557): American LLCs are treated as unincorporated associations
iii) Lear Corp. v. Johnson Elec. Holding Ltd (pg. 557): Foreign LLCs are sometimes treated as corporations
g) Foreigners, under §1332, that cannot be parties when complete diversity is require
i) “Stateless persons” who are not citizens of any nation
ii) American-citizen expatriates domiciled abroad (not “citizen” of any state or foreign nation)
2) Amount in controversy
a) Del Vecchio v. Conseco, Inc. (pg. 558)
i) Amount in controversy is solely what plaintiff asks for in complaint (akin to Mottley)
ii) Aggregation:
(1) A single plaintiff may aggregate damages from as many related and unrelated claims as plaintiff likes if
they are all against a single defendant
(2) A single plaintiff may not aggregate damages from multiple defendants unless the defendants are jointly
and severally liable for the entire amount
(a) Rare, assume the opposite
(3) Multiple plaintiffs may not aggregate damages against defendant(s) unless there is a “single indivisible
harm” or “common undivided interest” such as an estate
(a) Rare, assume the opposite
iii) Jurisdictional amount is proper unless it is beyond a legal certainty that the plaintiff is not entitled
(1) Very hard to meet
(2) Courts may scrutinize punitive damages more closely (think about mutlipliers)
SUPPLEMENTAL JURISDICTION

Key Questions
1) Does claim in question have independent jurisdiction?
2) If not, is there another claim that has independent jurisdiction (FQJ, Diversity)?
3) If so, is claim in question part “same case or controversy” as the claim over which there is independent jurisdiction?
4) Do any exceptions prohibit jurisdiction (incomplete diversity, §1367(b))?
5) If jurisdiction is improper, what will court do (dismiss whole case, dismiss claims)?

1) Pre-§1367, supplemental jurisdiction was decided in the common law

a) Strawbridge and Kroger: interpreted §1332 to require complete diversity
b) United Mine Workers v. Gibbs (pg. 564)
i) Supplemental jurisdiction over state claims that derive from the “same nucleus of operative facts” as a claim
over which there is original federal jurisdiction is proper because the claims comprises the same
“constitutional case” as set out by Article III
(1) Broad reading of jurisdictional statutes (§1332 and Article III)
ii) Such jurisdiction is at the discretion of the court (not a right) and should be made in consideration of:
(1) Judicial economy
(2) Convenience
(3) Fairness to litigants
c) Clark v. Paul Gray, Inc. (pg. 573): all parties must satisfy the amount in controversy
2) Exxon Mobil Corp. v. Allapattah Services, Inc. (pg. 570)
a) Holding: For a claim properly founded §1332 diversity and amount in controversy, the court has supplemental
jurisdiction over all claims by parties that form part of the same case or controversy, so long as they do not
destroy citizenship, EVEN IF they do not satisfy the amount in controversy
i) Complete diversity still applies because it goes to the heart of the rationale behind diversity, whereas the
jurisdictional amount only functions as a “gatekeeper”
ii) Dicta: if the original complaint includes a non-diverse party, then there is no “civil action” over which the
court can exercise original jurisdiction, and thus no supplemental jurisdiction, thus court should dismiss the
whole case
(1) Many courts treat this as dicta and only dismiss the non-diverse party
(2) Possible suggestion: facing a 12(b)(6) motion or sua sponte, plaintiff should amend original complaint
b) Treats §1367(b) literally in that what is not explicitly prohibited is allowed (Rule 20 v. 19 plaintiffs)
i) “Kroger back-door” codified in §1367
(1) Once third-party defendant sues plaintiff, a “Kroger back-door” type claim is allowed because it is no
longer being made for the reasons the “back-door” was prohibited in the common law

T1 ($100K) + T2 ($30K) v. K  Pre-1367:

   No SMJ, each P must meet min jx amount. T1 could bring solo suit against K, but both cannot.
 Post-1367: T1 has SMJ under 1332; T2 has SMJ under 1367
 1367 (a): permits claims under same case/controversy
 1367 (b): Allapattah: does not prohibit joined Ps (T2), rather, only bars claims against Rule 20 defendants
 Nothing in 1367 prohibits claims by Rule 20 plaintiffs against anyone

T1 ($50K) + T2 ($30K) v. K  No SMJ, aggregation rule still stands, where plaintiffs cannot add together to get >$75K; there must be at least one
claim with independent jx before there may be supplemental jx

T1 v. K1 ($100K) + K2 ($30K)  Post- 1367 and Allapattah

 No supplemental jx over K2 because 1367 bars claims against Rule 20 defendant
 This is the Allapattah “unintentional drafting gap”
 T1 ($80K) + T2 ($40K) v. K  Yes SMJ, after Allapattah

T1 v. K2 ($80K) + K2 ($80K)  Yes, independent diversity jx over both because each are diverse and meet min amount; no need for supplemental

T1 + T2 v. K1 + K2 combined  Seems yes, because each T1 claim has independent diversity jx, giving each T2 claim supplemental jx
   But Allapattah literal reading would say K1 and K2 joined as Rule 20 defendant which is explicitly barred by 1367(b)
(T1 sues K1 and K2 for $80K)  Seems absurd; courts have ignored argument about Allapattah /1367 barring jx in this case
(T2 sues K1 and K2 for $40K) 

K ($100K) + T1 ($100K) v. T2  Pre-1367:

 No supplemental jx over T1 v. T2 because complete diversity required
 Post-1367:
 1367(a): T1 v. T2 part of same case/controversy
 1367(b): No bar against claims by Rule 20 plaintiffs
 However, no jx over ENTIRE “CIVIL ACTION” because complete diversity lacking
o Cannot separate case/plaintiffs when considering diversity because of “bias rationale”/”very reason
for diversity”, but can do so regarding min jx amt
o Arguably nonsensical
 What should court do when faced with this situation?
o Ignore this “dicta” of Allapattah and merely dismiss T1 – this is what courts do
o Follow Allapattah literally and dismiss entire case
 Allapattah says no original jx, not just no supplemental jx
 No courts do this

REMOVAL JURISDICTION

1) Governed by 28 U.S.C. §§ 1441, 1446, 1447

2) Procedure allowing defendant to remove to federal court only if plaintiff could bring in federal court originally
3) Only the defendant can
a) Circuits split on whether impleaded parties can remove
4) In state defendants cannot remove
a) Removing here would defeat the purpose of diversity jurisdiction
5) Case must be removed within 30 days of service of complaint if federal jurisdiction was apparent at that time
a) If case becomes removable, defendant has 30 days from the time it becomes removable to remove
b) Cannot remove a diversity case more than 1 year after it is filed
i) If plaintiff files for less than $75K; then increases to more than $75K after 1 year to prevent diversity
(1) Argue at time of filing that P is lowballing and remove
(2) Ask for sanctions under 11(b)
(3) If removal unsuccessful, attempt to discredit plaintiff in front of jury pointing to swing in damages

CHOICE OF LAW
INTRODUCTION

1) Rules of Decision Act of 1789

a) The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress
otherwise require or provide, shall be regarded as the rules of decision in civil actions in the courts of the United
States, in cases where the y apply
2) Rules Enabling Act (28 U.S.C. § 2072)
a) The law
i) Supreme Court has the power to promulgate general rules of practice and procedure
ii) Cannot “abridge, enlarge, or modify any substantive right”
iii) All laws in conflict with such rules shall be of no further force or effect
 b) Character of FRCP per REA
i) Congressionally authorized rules of procedure created by the judiciary
ii) Once promulgated, if not vetoed by Congress, then they take effect
iii) Debatable then…if they should be treated as judge made or congressionally made
(1) Certainly more “legislative” in character than the common law
3) Swift v. Tyson (pg. 588)
a) Federal courts need not apply state common law; the RDA is limited to state statutory law
4) Erie Railroad Co. v. Tompkins (pg. 590)
a) Overrules Swift
i) Federal courts must apply state statutory law and substantive state common law decided by its highest
courts in cases where the Constitution or federal law does not govern; rationale is to avoid:
(1) Forum shopping
(2) Inequities
b) Congress has no power to make/change state statutory or common law, but could preempt a state cause of
action and create exclusive federal jurisdiction over an area of the law
5) Guaranty Trust Co. of New York v. York (pg. 599)
a) Diversity case where application of state statute of limitations would bear recovery and application of equitable
laches federal doctrine would allow recovery
b) Holding: if the application of federal law would lead to a substantially different result then the state law should
govern
i) Eschews attempting to make categorical distinctions between substantive and procedural law
ii) Instead creates the “outcome determinative test”
6) Ragan v. Merchants Transfer & Warehouse Co. (pg. 603)
a) State cause of action filed in federal court under diversity where FRCP tolls statute of limitations at time of filing
and state rule tolls statute of limitations at time of service
b) Holding: applies Guaranty Trust “outcome-determinative” test where recovery cannot be had in federal court if
it cannot be had in state court
i) Distinguishes Bomar, where even though the issue here is one that is regulated by “procedural” federal
rules, Bomar was a case under federal question jurisdiction, so the FRCP clearly apply
7) By the time Ragan was decided, there was a fear that neither congressional power nor the FRCP would survive Erie,
however, with two decisions the court began a drastic swing in the other direction
a) Byrd v. Blue Ridge Rural Elec. Coop, Inc. (pg. 605)
i) Supreme Court had to choose whether on remand to order application of state common law rule that judge
decides “statutory employee” or whether standard federal practice of should prevail (jury decision)
ii) Court agreed with plaintiff (jury decision) by recasting Erie as a test balancing state and federal interests
(1) Does state congressional intent indicate that the rule in questions is “bound up with the rights and
obligations of the parties”?
(a) No, the judge/jury decision is just a mode of enforcement
(2) Are there countervailing federal interests that outweigh the “outcome determinative test”?
(a) Here there are in terms of due process and judge/jury division
(3) Is there any reason to believe ex-ante, the litigation outcome would be different?
(a) No, ex-ante, judge/jury have same chance of deciding one way or another – even if different ex-post
iii) Byrd has been rarely cited to invoke the “countervailing federal interests” as overcoming the Erie-York test,
but might be more valid on the “ex-ante high likelihood” grounds
b) Sibbach v. Wilson & Co. (pg. 607)
i) Upheld the validity of FRCP 35 (physical examinations) without mentioning Erie
 ii) Plaintiff argued it was that Rule 35 was beyond the authority of the Rules Enabling Act (§2072) which only
authorizes FRCP that do not “abridge, enlarge or modify any substantive right”
iii) The test under Sibbach is when an FRCP is the source of a conflict, must ask if the rule “really regulates
procedure” or is “arguably procedural”, which if Rule 35 is, likely means that any other rule is as well
(1) This is to make sure that the rule is in conformity with the REA (thus constitutional) and then controls
any conflicting state rule

APPLICATION – FORMALIZNG THE FEDERAL V. STATE CHOICE OF LAW TEST

1) Hanna v. Plumer (pg. 609)

a) Diversity case where following state law of service (personal service) results in defendant winning and following
FRCP service (personal or residence service) results in plaintiff winning
b) Court holds that the FRCP service rule controls
c) Drives wedge between cases requiring interpretation of REA (Sibbach path) versus cases that do not (Erie path)
i) If case does not require interpretation of REA (i.e. conflict does not derive from FRCP) then must apply Erie
“outcome-determinative” test through Erie’s twin aims of
(1) Forum-shopping
(2) Inequities
ii) If FRCP creates conflict, then the Sibbach test forces application of FRCP (“arguably procedural”)
(1) Gets into the debate of conformity with REA, whether the FRCP is constitutional, and whether FRCP is
sufficiently “more legislative” than common law
(a) No FRCP results in Erie path because judges don’t have power to change state law
(b) FRCP results in Erie path because only Congress has the power to “preempt” state law
d) Unclear what this says about Ragan
i) Ragan was about whether SOL was tolled at filing of complaint (FRCP 3 states that the action commences
with filing of complaint, but the tolling of SOL at filing of complaint is really a federal practice apart from
FRCP 3) v. Kansas law that SOL is only tolled upon service of summons
2) Walker v. Armco Steel Corp. (pg. 618)
a) Must be direct conflict between FRCP and state practice to apply Sibbach-path instead of Erie-path
i) Is FRCP “sufficiently” broad to control?
ii) Does following FRCP in its intended sphere of purpose, preclude the state practice in its intended sphere?
b) Must give FRCP plain meaning rather construe narrowly to avoid conflict – court really didn’t do this (footnote)
c) Service requirement and its implication for SOL does not create “forum-shopping” but does create “inequities”
3) If no direct conflict, should not need to ask Erie questions – case is about stare decisis and Ragan was a mistake

APPLICATION – CHOOSING THE PROPER STATE LAW

1) Choosing which state’s law to apply

a) Klaxon Co. v. Stentor Electric Manufacturing (pg. 637): Apply the choice of law doctrine of state in which the
federal court is located
b) In a diversity case, this might involve a federal court in New York, guessing what the state supreme court of New
York would think the Supreme Court of California would think
2) Choosing what substantive content of the state’s law to apply
a) Federal courts are required to apply state statutory law or decisions of the state’s highest court but if the
highest court has not spoken, then the federal courts must make an “Erie guess” as to what the highest court
would do
 b) Webber v. Sobba (pg. 637)
i) Supreme Court of Arkansas silent on the issue of the joint enterprise defense
ii) Arkansas Supreme Court has been willing to refer to the Restatement of Torts in the past
iii) Restatement of Torts embodies the majority view that the defense is not allowed
iv) While Arkansas Supreme Court diverges from majority view in some cases, the Arkansas trend in expanding
tort liability, and the policies “undergirding” the defense suggests the Supreme Court would adhere here
v) There are no policy reasons suggesting its application is more appropriate to diverge from majority
3) Nationwide Mutual Insurance Co. v. Buffetta (pg. 636): hierarchy of “Erie guess” materials
a) Rulings from highest court
b) Ruling from lower courts
c) Restatements, scholarly works, policy considerations
d) Can also certify to the state’s highest court (not in Nationwide, just another tool)
i) At the discretion of the state court
ii) Sometimes prohibited by the state to take cases from certain places
4) Deciding whether a federal court should apply a state supreme court precedent if it is ancient and it appears that
they would diverge from that precedent today
a) Balance force of precedent with reasons to change
i) Maybe, court has not been presented with a good enough case to warrant change, but would if it did
b) Precedent is probably the strongest
c) State court is not bound by the “Erie guess”
5) Deciding whether to defer to the district court on the application of state law
a) Salve Regina College b. Russell (pg. 636): Court of Appeals should review determinations of local law de novo