I. DOES THE CT HAVE AUTHORITY TO DECIDE THE DISPUTE?

A. Does the Ct Have Authority Over the Parties?

1. Personal Jurisdiction 1) 2 Step Process a) Satisfy a statute (i.e. long arm statute); AND b) Satisfy Constitution. 2) Traditional Assertion of jurisdiction. (dont worry about going through these) a) Domicile in state. b) Presence in forum when served (unless procured by fraud). c) Consent. i) Appearing in action. ii) By contract iii) Appointment of agent for service. iv) Implied consent (i.e. non-resident motorists statutes). 3) Assertion of jxd over non-residents a) Test: Does defendant have such minimum contacts with the forum such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? (Intl Shoe Test) b) Must meet: i) State long-arm statute AND (1) If given, ask whether it comports w/ constit requirements. ii) Minimum contacts some tie w/ D and the forum (1) Purposeful availment - D voluntarily reached out to forum. (2) Foreseeability - That D would get sued in the forum. iii) Traditional notions of fair play and substantial justice (1) Relatedness of contact and claim - Does claim arise from the contact with the forum? (a) General jurisdiction - if ties are substantial (relatedness not necessary). (2) Convenience - OK unless puts D at severe disadvantage. (3) States interest - interest in protecting citizens. Remember: My Parents Frequently Forgot to Read Childrens Stories 2. In rem jurisdiction exists when court has power to adjudicate the rights of all persons in the world with the respect to a particular item of property a) If dispute related to prop and if property in state jurisdiction. b) If dispute not related to prop attached must satisfy Intl Shoe (above) 3. Quasi in rem jurisdiction exists when the court has power to determine rights of particular individuals with respect to specific property within the courts control. 4. Noticeservice of process a) Delivery of summons and copy of complaint to D. i) Serve process 120 days of filing case ii) By nonparty at least 18 b) Types i) Personal ii) Substituted Ds usual abode and s/o of suitable age and discretion who resides there iii) On Ds Agent (authorized to receive service)

iv) Waiver by mail (first class mail, postage paid); formal service waived if returned w/in 30 days v) As permitted by state law c) Process delivered to D in another state (1) Okay with long-arm statute, bulge rule (new parties within 100 miles of courthouse), statutory interpleader.

B. Does the Ct Have Authority Over the Subject Matter?

1. Subject Matter Jurisdiction 1) State courts are courts of unlimited jurisdiction. Only limits are statutory. 2) Federal courts are courts of limited jurisdiction. a) Only have jxd over two types of claim: Diversity and Fed Question i) Diversity of Citizenship. (1) Complete diversity required. (no P and D can be from same state) (a) Domicile of individuals - Presence with intent to stay. (subjective); citizenship for ppl = state of domicile. (i) Decedents, minors, incompetents use citizenship of person being represented, not the fiduciary (b) Citizenship of corporations All state where incorporated, and one state where principal place of business (PPB). (i) PPB = headquarters OR where corp does most bus activity (ii) Unincorporated assoc look to citizenship of all members (c) Class action Look to citizenship of class rep (2) Amount in controversy - Must exceed 75,000 (w/o costs & interest) (a) Aggregation (i) 1 P vs. 1 D Yes; 2 Ps vs. 1 D No. (ii) Separate claim against multiple Ds - no. (iii) Joint and several liability claims against multiple Ds - yes. (b) Test: Good faith allegation that claim exceeds 75,000. (i) Unless clear legal certainty that he cannot recover that much. (ii) If less recovered, court may award costs. (c) Injunctions - Maj. Ps Viewpoint; Min. Ds viewpoint. ii) Federal Question - Federal courts have jurisdiction over all civil actions arising under the Constitution, laws or treaties of the U.S. (1) Well pleaded complaint rule Ps complaint, properly pleaded, must be based on federal law; Ask Is P enforcing a fed right? 3) Supplemental Jurisdiction - Allows federal courts to hear claims over which it would have no independent basis for SMJ (i.e. state claims). a) Note: already in fed ct, but there is an addl claim that is not FQ or diverse (1) Pendant - Plaintiff may bring all other causes of action against D so long as they derive from a common nucleus of operative facts (same transaction/occurrence). (a) Pendent parties (b) Court has discretion not to hear supp claim if: (i) FQ dismissed early in proceedings; or (ii) State law claim is complex or state law issues would predominate

(2) Ancillary - Anyone but plaintiff may bring claims against anyone arising out of the same transaction of occurrence. 4) Removal - Within 30 days after service of first removable document (usually complaint), defendant may remove to federal courts. All Ds must agree. i) Can remove only to fed district embracing state ct where case originally filed. (1) Test removable if case could have been heard in fed ct. ii) Diversity case rules: no removal if any D is citizen of forum where action is filed; no removal more than 1 yr after case filed in state ct.

a)

If FRCP or FRE on point conflicts with state law, apply federal law if arguably procedural. b) If not on point, and an issue of substantive law, must use state law; c) Determining whether procedural or substantive: a. Outcome determinative if ignoring/applying state rule affects outcome substantive (state law applies) b. Balance of interests. c. Avoid forum shopping. If not applying state law causes flock to fed ct apply state law d) Definite Substantive Issues: Choice of law rules, SOL, Tolling SOL

C. Is the court the proper place to resolve the dispute?

1. Venue (which fed ct?) 1) Venue is proper: a) Where all defendant resides, if all defendants reside in the same state, Or i) Note: If all Ds reside in diff districts of the same state, venue is proper in a district where any of them resides. b) Where a substantial part of the claim arose. c) Diversity: If neither a nor b, then where any D is subject to PJ. d) FQ - If neither a nor b, then any district where any D is found. 2) Determining Residence a) Individuals - Domicile b) Corporation - Anywhere where subject to Personal Jurisdiction. 3) Special Cases a) Local Actions must be filed where the land lies. b) Transfer of Venue - From one federal district ct to another if it could have been brought there. i) If venue in original forum proper, may transfer based on: (1) Factors: convenience of parties and witnesses, and interests of justice. ii) If venue in orginal forum improper, ct may transfer in interests of justice or dismiss c) Forum non-conveniens If more appropriate and convenient forum elsewhere, court may dismiss. FNC allows a fed ct for the convenience of the parties and witnesses, in interest of justice, to transfer any civil action to any other district where it might have been brought, or if transfer not possible, to dismiss. i) Must have an alternative forum. Similarity of relief. Fact that P may recover less is irrelevant. ii) Dismissal based upon public factors (court congestion, jury service, local issues resolved locally, substantive law) and private factors (convenience, availability of evidence/witnesses, process, costs, ease).

III. ARE THE PLEADINGS PROPER?

II. WHAT LAW GOVERNS THIS DISPUTE?

1. Erie Doctrine 1) In diversity cases, federal courts must apply state substantive law and federal procedural law.

1) Federal courts use notice pleading - The pleading must put other party on notice. 2) Rule 11 - Atty. must sign all pleadings, certifying that after a reasonable inquiry, the paper is not for an improper purpose, the legal contentions are warranted by law, and the factual and denial of factual contentions have evidentiary support. a) Filed but not served, then 21 day safe harbor to w/draw or fix offending docs. If she does not sanctions. If she does not, then motion can be filed b) Court can raise Rule 11 problems on its own (sua sponte) i) No safe harbor period here 3) Complaint a) Must contain: i) Statement of SMJ (Grounds for federal jurisdiction). ii) Statement of the claim. (short and plain) iii) Demand for relief. b) Standard: Must plead facts supporting a plausible claim c) Special matters: must be pleaded w/ particularity or specificity. i) Fraud, mistake, special damages 4) Defendants response - within 20 days of service of process. a) May file answer respond to allegations of complaint i) Admit, deny, lack sufficient info to admit or deny ii) Raise affirmative defenses (i.e. SOL, SOF, res judicata, self defense) (1) Must plead affirmative defenses in answer. b) May file Rule 12 motion. i) Issues of form (1) Motion for more definite statement (vague, etc.) (2) Motion to strike aimed at immaterial things ii) Matters of abatement (1) Waivable - Venue, Process, Service of process, lack of PJ (a) Must be put in first R12 response, or else waived (2) Not Waived lack of SMJ, Failure to join indispensable party iii) Matters of merit - 12(b)(6), judgment on pleadings, Summary Judgment. c) Timing i) If no motions, 20 days after service of process ii) If R12 motion and it is denied, 10 days after cts denial. iii) 60 days if service of process waived by mail. 5) Counterclaim - Rule 13 (offensive claim against opposing party) a) Compulsory - Claim arises from the same T/O as Ps claim i) Must be filed w/ Ds answer in pending case or waive right to sue

ii) If D never answered, rule not violated (D can still sue) b) Permissive - Does not arise out of same T/O as Ps claim. i) Can sue in separate action. c) Supp Jxd If needed for compulsory 6) Cross-Claim - Offensive claim against a co-party (3rd party). a) Must arise out of same T&O as underlying action (not compulsory) b) Must have independent basis for jurisdiction (Diversity, FQ or supplemental). 7) Amending Pleadings a) P has right to amend once before D serves answer. b) D has right to amend once within 20 days of serving answer. c) May seek leave of court to amend - Allowed if justice so requires. d) May move to amend the pleadings after trial to conform to evidence, as long as no objection was made during trial. Otherwise, evidence is at variance w/ the pleadings, and not admissible. e) Amendment after SOL has run. i) Relation back treated as though filed when og filed (1) Amended pleadings relate back if concern same conduct or T/O as the original ii) Amendment to add new party or change D (usually when P sues the wrong D) - allowed if: (1) Concerns the same conduct, transaction or occurrence. (2) The new party knew of action within 120 days of filing. (3) The new party knew that but for the mistake, it would have been named originally. IV. ARE THE PROPER PARTIES & CLAIMS BEFORE THE COURT? 1. Joinder of Parties 1) Parties who MAY be joined a) Test: i) Claims arise out of the same transaction or occurrence, ii) and raise at least one common question. b) Still must assess SMJ. 2) Necessary parties MUST be joined. a) Test (if absentee meets any of these, ct may order joinder): i) Without absentee, court cannot afford complete relief among the parties. ii) Absentees interest may be harmed if not joined; or iii) Absentee claims an interest which subjects a party to multiple obligations. iv) Joint tortfeasors are NOT necessary parties. b) If joinder is not feasible (destroy diversity) court may either proceed without party, or dismiss case calling the absentee indispensable. i) Factors: Alternative forum, actual likelihood of prejudice, relief to avoid prejudice? 2. Joinder of Claims 3) Impleader - Joining new D (TPD) in vicarious liability situation

a) Claim against TPD must be derivative - for contribution or indemnification. b) D has right to implead within 10 days of serving answer. After that, need court permission. c) P may assert a claim against TPD and vice versa as long as it arises from same T/O. d) Any party may file claims against any other party so long as they have SMJ or supplemental jurisdiction for all claims. e) Bulge Rule parties joined as necessary or per impleader may be served out of state w/in 100 miles from fed courthouse 4) Intervention - third party who wants to join the suit. Must make timely application. a) Of right - As interest may be harmed if not joined, and interest not adequately represented. b) Permissive intervention - As claim or defense and the pending case have at least one common question. Court has discretion. c) Requires SMJ. 5) Interpleader - Stakeholder forces all claimants into a single lawsuit to avoid multiple litigation and inconsistency. a) Rule 22 interpleaderi) Diversity stakeholder must be diverse from every claimant ii) Amount in controversy - Greater than 75k. iii) Venue - Same as all cases iv) Service of process - Same as all other cases. b) Statutory i) Diversity - One claimant must be diverse from another claimant. ii) Amount in controversy - $500 or more. iii) Venue - Anywhere district where any claimant resides. iv) Service of process - Nationwide service. 6)

The Class Action

a)

Initial Requirements (need all) i) Class so numerous that joinder of all members is impracticable; ii) There are questions of law or fact common to the class; iii) The claims of the representative parties are typical of the class; and iv) The representative and her lawyer will fairly and adequately represent the class. b) Types (in addition to requirements, must fit into one of following) i) Prejudice class treatment necessary to avoid harm to class members or to party opposing class (i.e. fund depletion b/c of many claimants) ii) Injunction/Declaratory judgment - Class members treated alike in some way. This relief is appropriate for the class as a whole. iii) Damages (i.e. mass tort) (1) Common questions predominate. (2) Class action superior method to handle dispute. c) Notification i) Class 1 and 2 - none ii) Class 3 (common Qs)- Class Representative pays to give individual notice to all members reasonably identifiable telling them they can:

(1) Opt out, they will be bound if they dont opt out, and they can enter a separate appearance through counsel. d) Who is bound by class judgment (1) Class 1 and 2 - All members. (2) Class 3 - All who did not opt out. e) Subject matter jurisdiction i) FQ ii) Diversity (citizenship of representatives only) (1) Amount in controversy greater than (a) Traditionally - > 75k for each class members. (b) MT Ok if reps claim > 75k f) Settlement or dismissal - Requires court approval. V. HAVE THE PARTIES PROPERLY PROPOUNDED & REPLIED TO DISCOVERY? Discovery 1) Required disclosures Must be produced even if not asked for. a) Initial disclosures - W/in 14 days of R26 conference, identify persons or documents likely to have discoverable information. b) Experts - Identify experts who may be used at trial and produce report c) Pretrial - w/in 30 days b/4 trial, produce detailed info about trial evid 2) Discovery tools - After Rule 26(f) meeting. a) Types i) Deposition - May be used for parties or nonparties. (1 day, 7hrs) (1) Nonparty - Use subpoena or subpoena duces tecum (to bring docs) (2) At trial, depo may be used to: impeach, any purpose if adverse party or deponent unavailable. ii) Interrogatories - may only be sent to parties. iii) Request to produce - May be sent to parties or nonparties. (1) If 3p - Use subpoena. iv) Physical or mental examination - Available through court order. (1) Must show health is in actual controversy and good cause v) Request for admissions - Request to party to admit truth of any discoverable matter. b) Sworn statement - that attorney not using discovery for improper purpose. c) Duty to supplement - continuing duty to correct information. 3) Scope - Anything relevant to claim or defense. a) Relevant - Reasonably calculated to lead to discoverable evidence. b) Privileged matter is not discoverable. c) Attorney work-product/Trial Prep Material - Material prepared in anticipation of litigation generally not discoverable. i) Factual information - may be discovered upon showing of substantial need and that information not otherwise available. ii) Opinion, conclusions, and theories are absolutely protected. d) Experts - If testifying, may be deposed, if not expected to testify, then no discovery absent exceptional need. 4) Enforcement of discovery rules

a)

Total or partial failure to provide discovery: motion to compel plus costs and certify good faith attempt to obtain discovery. i) False denial of request to admit: recover costs/As fees of having to prove the issue b) Sanctions include: i) Treat matter as admitted ii) Disallow evidence on an issue iii) Establish the issue adverse to the violating party iv) Strike the pleadings v) Dismiss COA or entire action (bad faith) vi) Enter default judgment (bad faith) vii) Hold in contempt, except for refusal to submit to physical or mental exam. VI. CAN THE DISPUTE BE RESOLVED W/O TRIAL? Termination of case without trial 1) Dismissal a) Voluntary dismissal P may dismiss once without prejudice by filing a notice of dismissal b/4 D serves answer or moves for SJ. b) Involuntary 2) Default and default judgment. a) Default - if D fails to appear or respond. b) Default judgment - Must take default and get a judgment. Clerk can enter if: i) Show no response by D, claim for sum certain, affidavit that amount owed, and that D is not a minor or incompetent.. c) Relief from default i) If after default, but before default judgment - Good cause (i.e. excusable neglect) and viable defense. ii) After judgment - motion to set aside judgment. 3) Dismissal for failure to state a claim (Rule 12(b)(6)) - Take all allegations in complaint as true and decide if P should still win. a) After pleadings are closed (after D has filed answer), may file a motion for judgment on the pleadings (same as 12(b)(6)). b) Ct does NOT look to evidence, only sufficiency of Ps allegations 4) Summary Judgment a) Test: Moving party must show that there is no dispute on a material issue of fact, and that he is entitled to judgment as a matter of law. b) Court looks at evidence in a light most favorable to nonmoving party (to determine whether there is an issue of fact) c) Evidence must be admissible (ie. Not hearsa). Note: affidavits are evidence. 5) Conferences and meetings a) Final pretrial conference determines issues to be tried and evidence to be proffered. Recorded in pretrial conference order that supersedes the pleadings. VII. IF THERE IS TRIAL, WHO WILL DECIDE THE MATTER? Jury Trial 1) 7th Amendment guarantees right to jury trial for actions at law, but not for actions in equity.

a) Court will look to the nature of the remedy. b) Federal courts will give questions of law to the jury and the judge will decide equitable issues. Usually will try legal issues first. 2) Demand must demand in writing no later than 10 days after service of last pleading raising jury triable issues. 3) Jury selection - Unlimited strikes for cause, 3 peremptory strikes per side (must be used in race and gender neutral manner). 4) Verdict can be a general verdict, a special verdict, or a general verdict with interrogatories. 5) If there is a jury, can it be disregarded? a) Motion for judgment as a matter of law takes case away from jury. i) Made after opposing side has been heard. ii) Defendant can move twice, once after P has rested, and once after all evidence heard. P can only move once (after all evidence) iii) Standard: Evidence must be such that reasonable persons could not disagree on the result. (1) Court will take evidence in the light most favorable to the party opposing the motion. b) Renewed motion for judgment as a matter of law. i) Losing party may file; if granted = entry of judgment for him. ii) Standard: Court must conclude that jurors could not have reached the correct result. (same as (a)) iii) MUST HAVE moved for a judgment as a matter of law at the close of all evidence to bring this renewed motion for judgment. (otherwise, it is waived). c) Motion for new trial judgment entered but errors require new trial i) Within 10 days after entry of judgment ii) Grounds include: prejudicial error that makes judgment unfair (wrong jury instruction), new evidence, prejudicial misconduct of party/attorney/3rd party/juror, judgment against weight of the evidence, inadequate or excessive verdict. Appeals 1) - Requires a final judgment on the entire case before an appeal may be taken. a) Ask: after making this order, does trial judge have anything left to do on the merits of the case? If yes, not appealable. 2) Exceptions: a) Pretrial orders involving injunctions and other temporary equitable remedies. b) Interlocutory Appeals Act - May appeal non-final order if trial judge certifies that case involved a controlling issue of law as to which there is substantial grounds for difference of opinion and the court of appeal agrees to hear the case. c) Collateral Order Rule - Final order on issue distinct from the merits of the case, re an important legal Q, and is unreviewable if we must wait until final judgment. (ex. 11th Amendment immunity). d) Court may order final judgment as to one claim if there are multiple claims. e) Extraordinary Writ.

f)

Class action: Appellate ct has discretion to review order denying or granting certification of class in class action suit. i) Must seek review w/in 10 days of order

VIII. IS THE DECISION BINDING IN FUTURE CASES?

1) Res Judicata (Claim Preclusion) a) Where there is a final judgment on the merits, res judicata precludes relitigating the cause of action/claim. b) Requires i) Both cases must be brought by the same claimant against the same defendant. ii) Case 1 must have ended with a valid final judgment on the merits. (1) GR: any judgment except dismissals based on jxd, venue or indispensable parties = on the merits unless ct said otherwise when it entered judgment. iii) Both must involve the same claim. (1) Maj. defines claim as any right to relief arising from same T/O; (2) Min. defines claim based on primary rights (i.e. property damage and personal injury are diff claims even if caused in same txn) c) Exception: If some personal injury after recovery for property damage, then may bring claim. d) Definitions of merger and bar. i) Merger - res judicata when P won case 1. ii) Bar - res judicata when D won case 1 (and claimant lost) 2) Collateral Estoppel Issue Preclusion a) Precludes relitigation of a particular issue previously litigated and determined. b) Requires i) Case 1 ended in a valid final judgment on the merits. ii) The same issue was actually litigated and determined in case 1. iii) The issue was essential to the judgment in case 1. iv) May only be asserted against one who was a party to case 1 (or represented by a party). DP requirement. c) By whom can it be asserted? Mutuality v. Nonmutual. i) Traditionally, only party or one in privity with party could argue collateral estoppel (mutuality) ii) Modern Trend is to allow one who was not a party in Case 1 to argue collateral estoppel. (nonmutual assertion) (1) Nonmutual defensive collateral estoppel. (a) P sues D1 and loses. P sues D2, who can argue nonmutual collateral estoppel. (2) Nonmutual offensive collateral estoppel (a) P sues D1 and D1 counterclaims and wins. D2 then argues collateral estoppel against P. Or, P sues D1 and loses b/c contrib. negligent. D2 (new P) sues former P, arguing CE as to neg. (b) Most courts do not allow. (c) However, trend to allow if fair; Factors to consider if fair:. (i) Full opportunity to litigate the first case.

(ii) Whether multiple litigation was foreseeable. (iii) Whether person could have been joined in first case. (iv) There are no inconsistent judgments on the record.