Civil Procedure, Fall 2008 CHECKLIST

ISSUE
I. INTRODUCTION

TESTS POSSIBLE

PERTINENT CASES

A. Introduction to American court systems B. Introduction to the subject-matter jurisdiction of the federal courts C. An overview of a lawsuit

II. IN WHICH COURT SHOULD SUIT BE BROUGHT?

A. SUBJECTMATTER JURISDICTION 1. The diversity jurisdiction of the federal courts 2. The federal-question jurisdiction of the federal courts
1332 (SUPP 235) (complete diversity relaxed by a3, aliens): $75K+ (aggregation rules) -All parties need not have min amount in controversy for diversity if one does IF Gibbs test satisfied for supplemental jur (Exxon) EXCEPT -cant aggregate claims against 2 Ds if one doesnt meet the amount Mas v Perry (domicile) AFA Tours v. Whitchurch (Amount in controversey) Rose v. Giamatti (doctrine of fraudulent joinder) World Wide Volkswagon (havent moved domicile if in the process of moving)

1331 (SUPP 235) (federal question) (Article III, 2: 1346 if USA is a party) EITHER: A. Holmes test: Establishes a federal cause of action, OR B. Smith Exception: Ps Claim is under state law but depends on the resolution of a substantial Q of federal law, AND (for B only): Does Congress implicitly deny the federal COA? if yes then NO federal COA (Merrel Dow) If no, use Grable, Smith, Empire tests: 1. Must be substantial: could it resolve blanket cases? or is there a federal interest in adjuciating, or is there a substantial federal question? how central is the issue, is there a federal interest in having the jurisdiction, will the case have interpretive use for later case (a blanket decider).

Osborn v. Bank of US (federal Q = broad power to confer SM jurisdiction) Bank of US v. Planters Bank (arises under when federal law gives it the power to enter into the disputed contract) Lousiville RR v. Mottley (well pleaded complaint rule, antic. federal defense doesnt arise under) Skelly Oil v. Phillips Petroleum (federal defense to state law action doesnt arise under) TB Harms v. Eliscu (COA arises under federal Act only if complaint is an express remedy) Shoshone Mining v. Ritter (federal COA turning on issues of state law DOESNT arise under, tho meets Holmes test) Smith v. Kansas City Title (state COA arises under when it is bound up in a federal question) Franchise Tax Bd. V. Laborers Vacation (Smith) Grable Metal v. Darue Engineering ( Smith AND considering Grable FACTORS) Merrel Dow v. Thompson (no federal COA but probly should NOT be allowed unlike Smith)

3. The supplemental jurisdiction of the federal courts

1367 (SUPP 245) (Supplemental Jurisdiction) Must not open the door to a lot of other claims (cant be too inclusive) A. Can hear same case or controversy: Common nucleus of operative fact test (Gibbs) B. Gibbs factors C. Ancillary Jur can be by same test but through counter/cross claim, TPD complaint D. 1367b carveout for P claims against 14, 19, 20, 24 parties E. 1367c District court may decline state law claim for reasons 1-4 F. All plaintiffs need not have min amount in controversy for diversity if one does (Exxon) if original jur + Gibbs test satisfied

United Mine Workers v. Gibbs (common nucleus of operative fact test discretionary state law claim review AND Gibbs FACTORS) 1367 (Aldinger v. US overruled by Gibbs) (Finley v. US overruled by Gibbs BUT: jurisdiction must be granted by Article III AND statute, here 1346) Owen Equipment v. Kroger (1367b carveout destroyed diversity when TPD by Rule 14) Exxon Mobil v. Allapattah (addtl parties need not all have over $75 K if joining by 23 or 20, to be ok under 1367) overrules Clark and Zahn discrepancies

G.

Rule 24 intervention asymmetry (2Ds with less than amount in controversy would work if joined @ start by rule 20, but not 24) (some courts use this, some use Pfander solution (still need complete diversity)

4. Removing cases from state court to federal court

1441 ((SUPP 253) REMOVAL -federal can dismiss whole case back to state court (1367c) -state federal: If P could have filed in district Ct, D can remove there. If 1331 claims joined to nonremovable ones, separate and independent claims, can be removed and D court can remand piecemeal where state law predominates - 1441c. 1441 only works when 1367 DOES NOT. -You only need MINIMUM DIVERSITY for removal -2+ Ds, all must agree 1447 -1442, 1443, 1445 categories ok -1446, Removal Procedure (notice, time, diversity 1 year carveout -1447 remand procedure (for anything other than SM jurisdiction) & denying joinder for 1367b carveout can remand entire case here! -some courts say the D court could remand state claim & hold onto the rest, some that all should be remanded

Merrel Dow (in diversity jur, if court is in home state of any D, the case cannot be removed, 1441b) Carnegie Mellon v. Cohill (District court can only remand state claims by 1441 that could be dismissed under 1367c) Shamrock Oil v. Sheets (only the D can remove!) Rose v. Giamatti (doctrine of fraudulent joinder) Borough of West Mifflin v. Lancaster (can only remand claim for 1441 you could for cases1367c) (Thermtron Federal D courts can only remand removed cases under 1447c, cant make up others) Piper Aircraft (1441 removal under 1332 only needs to be minimal diversity)

B. JURISDICTION OVER THE PERSON OR THE PROPERTY 1. Pennoyer to International Shoe 2. Long-arm laws and specific jurisdiction a. The development of long-arm laws b. Constitutional limits on the extent of personal jurisdiction

Pennoyer v. Neff (binding judgment only against in personam or in rem jurisdiction people)

Hess v. Palowski (early, doesnt req. process in state)

Full Faith and Credit Clause of Article IV, Due Process Clause of IVth Amendment. 5th amendment due process is ONLY FEDERAL Constitution requires D consent or D presence in state for in personam jur. 12b2: if no process served, no personal jurisdiction. Personal Jurisdiction Basic Test for all cases: 1) Does state law purport to authorize this assertion of personal jurisdiction? (long arm statute) 2) If Yes, Would the assertion of personal jurisdiction here violate the Due Process Clause of Constitution? (substantial justice, fair play, reasonableness from International Shoe by minimum contacts) -different types of long arm statutes

Qualifying Step 2): International Shoe v. Washington (personal jurisdiction by minimum contacts test) Gray v. American Radiator (International Shoe test met even when corp. conducts no business just substantial connection needed) - state McGee v. International Life (Specific jur: D only needs a single act to satisfy contacts IF it was deliberately directed & gives rise to the claim) Hanson v. Denckla (must be purposeful contact, not nondeliberate & claim must arise from contct) AllState v. Hague (doesnt meet Hanson v. Denckla test, purposeful) World Wide Volkswagon v. Woodson (D needs purposeful contact fairness v. interests of state) Keeton v. Hustler (purposeful contact w marketing in the state. D only needs the contacts) Kulko v. Superior Court (International Shoe test applies to individuals, D need purposeful contact) Burger King Corp v. Rudzewicz (with minimum contacts met, D must prove fundamental unfairness under International Shoe Burger King FACTORS) Asahi (foreign corps need more contacts)

3. Long-arm laws and general jurisdiction

General jurisdiction: when the COA arose out of personal jurisdiction

Perkins v. Benguet Mining (long arm statute + minimum contacts rare: sometimes ok when contacts NOT litigation based) Helicopteros Nacionales de Columbia v. Hall (2 step analysis applies w/ Burger King factors for fair play here NOT enough continuous contact) Bellino v. Simon (OK if purposeful availment with minimum contacts AND fair play and substantial justice from International Shoe, Burger King factors)

4. The impact of the Internet

5. In rem and quasi in rem jurisdiction

-in rem doesnt need personal jurisdiction over every claimant property serves as the minimum contacts usually -quasi in rem, apply minimum contacts test for personal jurisdiction (AND property has to be attached in state borders)

6. Burnham and personal jurisdiction based upon physical presence at the time of service 7. Personal jurisdiction based upon prior consent (explicit or constructive)

In rem: Pennington v. Fourth National Bank (dont need jurisdiction over each person claiming title for in rem, just notice and opportunity to be heard) Quasi in Rem: Shaffer v. Heitner (2 step minimum contacts test for quasi in rem too! Replaces Balk) Burnham v. Superior Court (physical presene always ok, Scalia)

Transient Jurisdiction by presence OK

-appearing (filing even) can waive right to object -forum selection clauses are effective in imposing jurisdiction

Insurance Corp of Ireland v. Bauxites (you can submit to personal jur by filing with court, even if only objecting to it!) MS Bremen v. Zapata (forum selection clauses should be enforced if reasonable) Carnival Cruise Lines v. Shute (same) Keeton v. Hustler Burger King Corp v. Rudzewicz Asahi v. Superior Court

8. Personal jurisdiction in federal district courts

CANNOT BE WAIVED, whereas in state court it can. Rule 4 (SUPP p. 16): need Due Process, minimum contacts with WHOLE US, 100 mile bulge rule for those joined under 14 or 19 (4k1b). AND 4k2 for those abroad IF minimum contacts OK. 4k1a: Ability of fed district court to adjudicate depends on whether state count could do so (piggyback) IF: 1. Does state law purport to authorize? (state long arm statute) 2. Does it violate due process? A. Did D establish minimum contacts with the forum state? (International Shoe as interpreted by McGee, etc) B. If so, are there sufficient contacts to make jurisdiction permissible? (Burger King factors above, etc.) **Note: if either 1. or 2. is especially convincing it could win out, BUT there have to be some miminum contacts. not fully resolved FEDERAL PENDENT PERSONAL JUR: for additional claims on same facts, some federal courts allow claims to piggyback- apply 4k1 AND make sure minimum contacts ok. RULE 12 b, h, g2 (SUPP 42) 12h waiver of defenses 12b2-5 (personal jurisdiction) if motions to dismiss are piecemeal. (12g says do all the motions at once) -to maintain objection, dont motion at all with the court, just assert one of the defenses listen in 12b in your answer. -some states allow special appearance NOTICE: Due Process clause requires notice before adjudication: Notice must: 1. Comport with state/federal law requirements for notice 2. Be constitutional (Mullane Test for Due Process): A.must be reasonably likely to find D. B. must not be substantially less likely to find D than other types. *The greater the interests at stake, the more notice will be required. *Doesnt require ACTUAL notice- representation by proxy ok (4e2) OPPORTUNITY TO BE HEARD: (Due Process) Due process balancing test used in Doehr: Court weighing, 1) Private interests that are being affected. 2) Risk that existing procedures will lead to erroneous deprivation. 3) Consider the interests of the plaintiff, and any ancillary interests of the government. if too risky with great interest, unconstitutional

9. Personal jurisdiction based upon consent inferred from litigation conduct

Ireland v. Bauxites (you can submit to personal jur by filing with court, even if only objecting to it!)

C. PROVIDING NOTICE AND AN OPPORTUNITY TO BE HEARD

Mullane v. Central Hanover Bank & Trust (newsppr notice not ok if parties known Mullane test) Jones v. Flowers (if known not to get notice, Mullane test not met reasonable finder test)

D. VENUE, TRANSFER, AND FORUM NON CONVENIENS

VENUE 1391 (SUPP 247) , may be waived if rule 12b3 objection If improper, federal court can dismiss or transfer 1391a: Districts rules for diversity and not (not a lot of difference) more than one disctrict usually ok. -only one residence for the purposes of 1391, like 1332. -1391c: corporations and venue (corp resides in district where personal jur districts treated like parts of the state & one with most significant Contacts is proper) -unincorporated associations NOT treated differently, as they are for 1332 -1391d aliens can be sued anywhere -doesnt require cases removed by 1441 to have venue in new court! 1404 VENUE TRANSFER (SUPP 250) Can transfer anywhere P could have orig brought it (interests weighed) Discretionary transfer by motion/consent of parties in same district. *Choice of law: Rules drag along from orig state for 1404 transfers EXCEPT if there was some other jurisdiction problem (personal, SM) 1406 DISMISSAL OR TRANSFER FOR WRONG VENUE (Supp

Sniadach v. Family Finance (pretrial wage garnishment violates due process) Fuentes v. Shevin (also for property even if both have interest: seizure cant be before notice and opp to be heard) Mitchell v. WT Grant (BUT pretrial attachment ok with procedural safeguards) Connecticut v. Doehr (Matthews test applied to determine due process no pretrial attachment ok) Bates v. C & S Adjusters (1391b2, Venue ok where D resides & where notice forwarded; substantial events)

Hoffman v. Blaski (1404 federal court transfers have to be where it might have been brought under 1391) Klaxon v. Stentor (when state law relevant, use choice of law of state where D court is even for 1404)

251) Has to dismiss, or can transfer (but venue can be waived, 12g 12h) *Choice of law: Rules DO NOT drag along if a 1406 transfer FORUM NON CONVENIENS (can move even if original venue proper under 1404 if some other venue better AND you can dismiss under FNC even if venue was proper), Gulf Oil Factors: interests of justice, convenience of the parties, and witnesses etc.

Gulf Oil v. Gilbert (dismiss under FNC even if venue ok) considering Gulf Oil FACTORS 1404 codifies this. Pipe Aircraft v. Reyno (forum non conveniens IS NOT to help out choice of law for P gulf oil factors) Goldbar (you can transfer even if 1st court didnt have personal jur) ??

III. THE ERIE DOCTRINE

A. FROM SWIFT TO ERIE B. DEVELOPMENT AND APPLICATION OF ERIE
-When to do the Erie analysis: anytime state law applies (Klaxon and 1404, any diversity case, anytime a state claim is being considered) ERIE BOXES -28 USC 2072 Box 3 Rules Enabling Act (to see if a federal rule is unconstitutional never has been found to be so) -28 USC 1652 Rules of Decision Act requires federal court to follow state law in Erie. Box 4 -BOX 4: do what the state courts would do if the matter is "substantive," which you assess by using "the twin aims of Erie": (HANNA ADDS TWIN AIMS FOCUS) (a) trying not to encourage forum shopping between state and federal courts and (b) avoiding the inequitable administration of justice. If it doesnt encourage forum shopping between state and federal courts, and it avoids inequitable administration of justice, then state law applies. BUT if state rule DOESNT MEET THESE twin aims, its considered procedural and state law DOES NOT govern, Federal Common Law will. ERIE BOXES p. 35 outline!

Swift v. Tyson (local law and statutes could govern state law unless a fed statute existed, otherwise general law, determined by the federal court) Erie R Co v. Tompkins 1938 (Brandeis, substantive common law of state in which D court sits for diversity cases takes away federal general common law) Black and White Taxicab (manipulability of law if fed court decides) Guaranty v. York (Erie doctrine NOT just for diversity, Box 4, uses state rules if substantive substantial effect on outcome) Hanna v. Plumer (changes, Guaranty, Box 4 analysis to use Twin Aims of Erie for substantiveness here a FRCP applied under 4e2 proxy notice ex ante anal.) Walker v. Armco (Box 4 try not to read Fed Rules as conflicting with state) Stewart Org. v. Ricoh (Box 2, federal statute controls over conflicting state law if it reaches it) Gasperini v. Center for Humanities (Box 4, substantive under box 4 test so state law rules reexamination issue, doesnt violate 7th amendment state and federal courts should use same standard for excessiveness)

C. ASCERTAINING STATE LAW

Piggybacking in federal court when state law is relvant to figure out which choice of law rules to use (4k1a makes this explicit) When a federal district court concludes the Rules of Decision Act requires it to use state law (Erie-Hanna), it will use the choice-of-law rules for the state in which it sits (Klaxon). Only exception to this is when it was transferred from another federal district court. In that situation, the receiving court will use the choice-of-law rules that the first federal district court would have used (Van Dusen qualification).

Klaxon v. Stentor (when state law relevant, use choice of law of state where D court sits even for 1404) Mason v. American Emery Whell Works (federal court w/ no supreme court decision on state choice of law, use dicta intermediate courts certification) Byrd v. Blue Ridge (before Hanna, federal policy could outweigh state policy even if state rule outcome determinative) Ferens case: Van Dusen v. Barrack (for federal ct, apply Klaxon choice of law-dragging rules test to Erie for 1404 transfers convenience isnt considered much)

IV. THE MECHANICS OF A FEDERAL LAWSUIT

A. PLEADING 1.Complaints

(p. 40 outline)

RULE 8, notice pleading requirements SUPP. 30 -RULE 8a basic requirements -9b fraud particularity, form 21 (denny, Tellabs) (SUPP. 35) -9g special damages particularity -12b6 motion granted only if there are no set of facts in support of this claim that would entitle P relief (Easterbrook tests for failure) 1. It doesnt even satisfy notice pleading fails to state a claim under 8a3. 2. The legal theory is no good. 3. The legal theory is ok, but statements made in the complaint defeat the claim (even if these facts werent required in the first place). -RULE 54c NOTE: for 8c damages, defaults must not be different than those asked for, but otherwise can be what the P deserves even if not in pleadings (Bail v. Cunningham) -RULE 10 for form (SUPP. 37) -RULE 18 (SUPP. 59) joinder of claims ok: still need SMJ and personal Jur. Over ALL claims. *nothing needed in common -RULE 20 (SUPP. 61) Permissive joinder of parties (as P under same transaction or occurrence or joint right to relief or common Question of

Dioguardi v. Durning (notice pleading doesnt need facts sufficient for COA or legal theories, just notice) Conley v. Gibson (notice pleading rule 8 BUT Twombly more recently) Denny v. Carey (9b doesnt place a rigorous burden on P, just a little more) Leatherman v. Tarrant County (8a and 9b remain the tests, no others more stringent) Swierkiewicz v. Sorema (prima facie case not necessary for pleadings 8a) Pelman v. McDonalds () Doe v. Smith (Easterbrooks test for when pleadings could fail) Bell Atlantic v. Twombly (higher pleading for antitrust cases or maybe for all, form 11) Tellabs (heightened pleading for securities fraud >9b)

law or fact, as D if connected liability and common Q of law or fact) NEED SMJ and at least ONE claim in common. -RULE 22 INTERPLEADER (SUPP 62) -RULE 21 MISJOINDER AND NONJOINDER (SUPP 62) -RULE 42 CONSOLIDATION OF ACTIONS, OR SEPARATE 118 for common Q of law or fact (see Rule 20 joinder)

2. The defendants response a. Motions to dismiss

RULE 8 and 12 can work for counterclaims etc (not party specific) RULE 12 DEFENSES AND OBJECTIONS (SUPP. 41) -Answers usually w/in 20 days after complaint unless RULE 6 extension or RULE 4 waiver of formal process. -12b1-6 defensive motions (12g, 12h re. waiving certain defenses) -12c judgment on the pleadings -12d presenting matters outside the pleadings (rule 56 or 12b6) -12e motion for a more definite statement (Garcia) -12f motion to strike RULE 7 MOTIONS AND GENERAL PAPERS (SUPP. 29) -motions on paper, need to state grounds and relief sought. SEE Doe, Twombly Garcia v. Hilton Hotels (complaint sufficient tho didnt allege each and every element of the claim because he could make his case with some facts, court strikes some paragraphs)

b. Other pre-answer motions

c. Answers (i)Denials (ii)Affirmative defenses

RULE 8b, DEFENSES ADMISSIONS DENIALS (SUPP 30) -party can amend under Rule 15 though if no P prejudice -exception for damages (Taylor v. US) RULE 8c, AFFIRMATIVE DEFENSES -19 listed but there are more -8c applies even if state law wouldnt require! RULE 13 COUNTERCLAIMS (SUPP 48) (A COMPULSORY: arising out of same transaction or occurrence & doesnt require adding a party that court has no jur over. B PERMISSIVE: no relatedness requirement, Rule 18 allows a number of counterclaims) *Needs SM jurisdiction for each claim OR Supp jur under 1367 (Gibbs test usually only works for compulsory counterclaims) P responds to these the same as D does. CROSSCLAIMS (13g) (theres no compulsory cross claim) D2 v. D1 (against coparties) NOT compulsory, so not waived if not claimed. -Crossclaim in pleadings ok IF under same transaction/ occurrence (at least one claim must be under same t/ o, then Rule 18 kicks in). RULE 13H JOINING ADDITIONAL PARTIES (FOR 13A AND G) -Same case or controversey test, so doesnt usually need separate jur (1367a allows this). -Governed by Rule 19 (necessary) and Rule 20 (common transaction or occurrence) for adding to counter/cross claim. THIRD PARTY CLAIMS (Rule 14) (SUPP 49) -If rule 13h under same case/controversey test wont work, then use Rule 14 for parties joined under claim for contribution or indemnity. Zelinski v. Philadelphia Piers (Failure under 8b6 general denial if some clearly true) Ingraham v. United States (affirmative defense must be brought during pleading or trial before judgment) Taylor v. US (D may raise a statutory limitation on damages on appeal even if not in the pleadings) US v. Heyward-Robinson Co. (transaction or occurrence for 13a means broad logical relationship ancillary jurisdiction by 1367 here)

d. Counterclaims and cross-claims

Lasa Del Marmo v. Alexander (cross claim is valid if it bears a logical relationship with transaction or occurrence that is the subject of the original action or counterclaim (13g).

3. Motions for judgment on the pleadings 4. Amendments to the pleadings

B. SOME ADDITIONAL RULES ABOUT THE JOINDER OF PARTIES 1. The concepts of necessary and indispensabe parties

RULE 12C MOTION FOR JUDGMENT ON THE PLEADINGS -after pleadings, before trial for the PLAINTIFF RULE 15 AMENDMENTS TO PLEADINGS Once as a matter of course, then by courts leave or other partys consent (a freely given option under 15a) -15b during trial freely permitted too unless other party objects to ev. (trial on the merits and no prejudice to opposing party under 15b1) -Rule 15c: Relation back, a box 3 Erie Q of whether time should go back to original pleading state SOL, amendment on same t/o test, 15c

Forman v. Davis (amendments freely given unless there is some dilatory motive / bad faith) Beeck v. Aquaslide (amendment ok even if something originally admitted and now will b denied) Schiavone v. Fortune

RULE 19 NECESSARY & INDISPENSABLE PARTIES (supp 59) -when interests are not separable (indispensible) factors test19b -people affected, but interests separable (necessary) cant destroy SM jurisdiction

Bank of CA v. Superior Court (mandatory joinder when complete determination of controversy cant be had without) Provident Tradesmens Bank v. Patterson (necessary but not indispensable not bound by earlier decision) Jeub v. BG Foods (BG the D can implead a TPD if it may be liable as well ultimately Erie Hanna Q)

2. Impleader

RULE 14 THIRD PARTY PRACTICE: requires a claim of contribution or indemnity, & personal jur must still be satisfied though SM is by 1367 common nucleus test w indemnity, 1367b carveout doesnt apply bc by a D under rule 14. 4k1a and bulge rule for personal

3. Interpleader 4. Intervention

jurisdiction BUT NO venue requirement! -Impleaded TPD can assert claims against P out of same T/O and P can do the same (14a3) for same T/O. THEN defenses under rule 12, counterclaims and crossclaims. -Ps claims against TPD may not satisfy 1367b carveout in diversity.

C. CLASS ACTIONS 1.Introduction 2.The mechanics of Rule 23 3. The relevance of the Due Process Clause 4. Class actions and jurisdiction

RULE 24 INTERVENTION (SUPP. 70) A OF RIGHT: statute, or if interests in the transaction unless represented already (would also qualify under 19 BUT if interest represented then cant intervene ppl can join under 24a who cant under rule 19 read more broadly) B PERMISSIVE: statute, or if share a common Q of law or fact.

Smuck v. Hobson (interveners can come in after judgment if interests diverge)

RULE 23 CLASS ACTIONS SUPP 64 A numerosity, commonality (law or fact), typicality, representatives fair and adequate B 3 categories: 1. a. risk of A inconsistent conduct standards or B. hurt their interests (no opt out), like rule 19. 2. Party opposing the class needs injunctive remedy (no opt out) 3. Questions of law or fact common predominate over individual Qs AND class action superior (opt out) (3 requires notice, no opt out) 23c certification, notice, judgment notice 23e settlement with notice -Class action SM Jurisdiction: named parties only for diversity, associations = each member. Jurisdictional amount by Supreme Court says EACH P needs the amount. 1367: split on whether each needs the amount for supp jur.

Castano v. Americn Tobacco (23b3 type classes need a predominance AND superiority analysis before certification) Hansberry v. Lee (Due process violated when there is a conflict in the class and later res judicata effect)

-Class action personal Jurisdiction: -exception to International Shoe test BUT -forum state needs sufficient interest in claims to assert its state law to all claims

Zahn v. International Paper (tradition nonaggregation rules for class in diversity) Exxon Mobil (Ps can just aggregate in diversity class action for supplemental jurisdiction BUT not agreed) -2005 Congressional minimal diversity statute if $5m. Phillips Petroleum v. Shutts (23b3 class, miminum contacts for people isnt needed BUT forum state needs sufficient interest in claims to assert its state law to all claims with representation and notice)

D. RULE 11 AND OTHER SANCTIONS E. DISCOVERY 1. Mechanisms for formal discovery a. The general scope of discovery b. Mandatory disclosure and the discovery plan c. Depositions

RULE 11 PLEADINGS REPRESENTATIONS & SANCTIONS 11c sanctions safe harbor period 1927 Another method of sanctioning attorneys (unreasonable and vexatious multiplication of the proceedings, fee shifting only)

Ritter v. City of Springfield (Rule 11 requires 21 days notice before sanction motion filed under 11c)

RULE 26 SUPP 71 26d timing (after 26f conference) 26b Scope and limits (relevant and nonprivileged) 26b2 objection for rule 34 production burdensomeness considering Zubulake test. This is ALSO the 37e electronic info discovery test.

In re Auction Houses (even knowledge of an ex employee is compelled if asked for)

26a REQUIRED DISCLOSURE and exceptions (B)

Cummings v. General Motors (26a requires disclosures of things parties intend to use at trial automatically, not things it doesnt intend to use)

d. Interrogatories

RULE 30 DEPOSITIONS SUPP 90 -oral Qs, may be required under rule 45 -usually 30 limit -30c2 OBJECTIONS and 30d3 dont have to answer to preserve a privilege or to motion for unreasonable oppression etc. RULE 32 USING DEPOSITIONS IN COURT RULE 23 PERSONS WHO CAN TAKE DEPOSITIONS RULE 29 PARTIES CAN MODIFY DEPO PARTICULARS RULE 31 DEPOS CAN BE WRITTEN (see rule 37b sanctions for depositions, 37d all except vii) Evidence Rule 804 (hearsay admitted by deposition in some situations)

e. Requests for production and subpoenas duces tecum

RULE 33 INTERROGATORIES (written Qs) particularity, 30 days, 25- usually, option to just produce records if answering too burdensome. *Only to parties, unlike depositions *Used to preserve options while providing little help to opposition

In re Convergent Technologies (early contention interrogatories not enforced when other discovery info available oft abused)

RULE 34 DOCUMENT PRODUCTION (SUPP 101) -usually BEFORE DEPOSITIONS -any docs, electronic info, tangible things within 26b scope (relevant and nonprivileged), but they must be described 34b (categories). Cant just produce a lot of unsorted docs. RULE 45 SUBPOENA duces tecum (documents in nonpartys possession, ad testificandum (making witnesses show up) -45c = challenge to subpoena for required documents -45d objections if withholding for privilege (must be express and describe the documents) (OR protective order under 26c)

f. Physical and mental examinations g. Requests to admit

RULE 35 PHYSICAL AND MENTAL EXAMS -if condition is in controversey IF party in legal control (usually a party) RULE 36 REQUESTS TO ADMIT -admissions in scope of 26b1(relevant and nonprivileged) -36b conclusive but AMENDMENT COULD BE OK if meets rule 15 tests (merits, no prejudice) -specific denial required 36a4 -only for parties, if not denied in time, admitted for 36. 26e SUPPLEMENTING DISCLOSURES AND RESPONSES (for disclosures under 34 doc production, 33 interrogatories, 26a mandatory disclosures, 36 requests for admissions BUT NOT 30 depositions unless for experts under 26e2) needs to be voluntary or by court

Abdulwali v. Washington Metro Transit (P doesnt get to request to have attorney present, etc)

h. The duty to supplement

Mangual v. Prudential Lines (26e supplement sends answers much more favorable than the original deposition answers other party can use original answers but responder can put in subsequent answers)

2. Obstacles to discovery a. Motions for protective orders

RULE 26c PROTECTIVE ORDERS (burdensomeness of deposition certification that conference has taken place before motion) RULE 26b2 LIMIT ON FREQUENCY & EXTENT OF DISCOV. -Zubulake test, or if too duplicative RULE 45 move to quash subpoenas unless a witness 30c2 protects a witness in deposition to preserve a priv or 30b3 right RULE 26B3 WORK PRODUCT PROTECTION *federal law governs this definitions supposedly even in diversity -4 tests possible for in anticipation of litigation (imminent, identifiable, real possibility) -3 tests possible for because of litigation (5th circuit primary motivating purpose test most common NOT Adlman test) the Adlman test for in anticipation of trial (2nd circuit test) 1) Was litigation a substantial factor in considerations that led to creation of document? 2) Would exclusion of doctrine from work product doctrine harm its goals (goals are: maintain good lawyering, allow privacy) Goals of work product: maintaining an adversarial system. -Opinion WP almost never discoverable BUT 26b3A3 allows discovery of regular work product for substantial need if it cant get info elsewhere without undue hardship -WP protection can be WAIVED on a substantially increases likelihood adversary will get the info test only that doc waived for WP 26b5 CLAIM OF PRIVILEGE, PROTECTING TRIAL PREP MATERIALS (needs express claim and description of documents for AC privilege or WP) 34 request, 26b5 motion for privilege protection *Privilege determined by FR Ev 501: says to apply Klaxon test for which privilege rules to use (fed court with state law rules of decision, state law determines privileges) (see Upjohn) AC Privilege WAIVER by ANY revelation, even if not substantially likely to reach other side as for WP (AC priv tries to hide some ev) US v. United States Shoe (AC privilege requires 4 elements) Upjohn v. US (AC privilege protects corporate employee and counsel conference, WP exemption for statements only overcome by real need, FACTS test) Ocean Atlantic v. Willow Tree (state law rules apply FREP 501, different test for control group privilege) Hickman v. Taylor (codified in 26b3, attorney notes and memoranda not discoverable under old version of rule 34) Harper v. Auto Owners (insurance co. docs in regular course of business is NOT in anticipation uses the sole purpose test, TIME and PURPOSE issues) Jumpsport v. Jumpking (prepared in anticipation based on Adlman prepared because of litigation subjective test/ substantial factor test)

b. The work-product doctrine

c. Privileges

3. Discovery involving experts

RULE 26A2 EXPERT DISCOVERY -evidence, all opinions reasons and data 90 days before trial, supplements under 26e2 -37sanctions for experts if 26d or 26e not met (cant use the info) -26b4b shields the info of experts not testifying EXCEPT under Rule 35b on a showing of real need (even opinion WP if to experts, Musselman a common way, see Musselman rationales)

Braun v. Lorillard (rare case where discovery ordered from nontestifying experts under rule 35b exceptional circumstances) Krisa v. Equitable Life Assurance (Expert witness reports discoverable except with work Product) BUT Musslelman v. Phillips (34 requires disclosure even of attorney communications to experts even if they were just considered and not relied on, 26a2b)

4. Sanctions related to discovery

RULE 37 SANCTIONS SUPP 108 (Rule 11 not for discovery) 37a motion to compel discovery (after trying other means) 37a5a and b are fee shiftings for motions to compel results. 37b failure to comply with court order (serious sanctions) 37c failure to disclose (26a) or supplement (26e) unless harmless/ justified 37d failure to attend deposition by party or to respond to requests (37b) 37f for failure to frame plan under 26f (expenses) -37e failing to provide electronic information (Zubulake test) -Maybe a TYPICAL Procedure: 34 production demand 26 objection 37 motion to compel often another objection 37 motion (D Complies), then Ds 34 motion, etc. RULE 26g: can be sanctions for not signing

Zubulake v. UBS Warburg ( info must be produced under rule 34 (30 days), responding party pays except if undue burden, 37e BALANCING test for undue burden in electronic production)

5. Informal discovery F. EMERGENCY RELIEF PENDING TRIAL G. ADJUD. WITHOUT TRIAL 1. Summary judgment
RULE 56 SUMMARY JUDGMENT (SUPP 142) (12d can be treated as a 56 motion) -Rule 56c, if no genuine issue as to material fact that relief, judgment as matter of law summary judgment record -56e evidence has to be type admissible at trial, not allegations -56f needs facts, if affidavits show no facts then this can be sufficient BUT court can defer these judgments RULE 56d, partial summary judgment (for single claim under 54b) RULE 41 DISMISSAL ARE P and D specific, Voluntary by P or Court Order, Involuntary by court.(If P has dismissed a prev claim, it will be an adjudication on the merits) 41c dismissing counterclaims, crossclaims TP claims. RULE 55 DEFAULT JUDGMENT (mostly party neutral) When other party fails to appear, by clerk or by court. If they appear, need written notice 3 days prior 55b2 (then D will often move to set aside under 55c). -60b allows these set aside for good cause -54c exception to default judgments when damages differ from pleading 7th amendment (>$20 right to jury trial preserved for facts) -right decided by historical inquiry and type of damages (chauffers) FRCP 38 RIGHT TO TRIAL BY JURY ON DEMAND (Supp 114 -must demand no more than 10 days after pleadings RULE 39 WAIVER OF RIGHT TO TRIAL BY JURY -can be waived but court can impose one sua sponte Adickes (suggesting D would have to say P could never come up with ev to win, OVERRULED by Celotex standard in light of nonmovant remains) Celotex Corp v. Catrett (movant D doesnt have to supply affidavits, if P had the burden of proof on COA) Anderson v. Liberty Lobby (issue is a genuine on if reasonable jury could find for either side, considering substantive ev standards) Semtek

2. Dismissal under Rule 41

3. Default judgments

H. TRIAL 1. The right to trial by jury in federal court

Beacon Theatres v. Westover (mixed case of law and fact, Claims at law (of fact) must be decided before equitable claims) extends 7th amendment Dairy Queen (Beacon applies even if legal claims incidental to equitable claims) Curtis v. Loether (new COAs to jury trials can be made after 1791, but must parallel comm. law some) Chauffers v. Terry (Statute extends right to trial by jury, based on 2 step analysis of history and damages) Kennedy v. Southern CA Edison (Courts must give instructions even if they seem wrong if they intro an important issue can be error)

2. The order of proceedings in a trial

RULE 51 Jury INSTRUCTIONS and OBJECTIONS -Instruction requests usually before close of evidence, objections need to be stated distinctly 51c. 51d error as basis for appeal. RULE 49a SPECIAL and 49b GENERAL verdicts RULE 52a findings in BENCH TRIALS RULE 50a for judgment as a matter of law: granted if fully heard, on dispositive issue AND no reasonable jury could disagree w/ all permissible inferences to nonmoving party -motion can be @ any time before submitted to jury -IF NOT before submitted to jury, youve waived your right RULE 50b, motions can be renewed after trial as long as 50a motion was timely and denied (within 10 days A STRICT DEADLINE under Rule 6b2, see Hobson)

3. Motions for judgment as a matter of law

Jerke v. Delmont State Bank (Party with burden has to bring evidence enough that reasonably jury couldnt disagree) Slocum (Rule 50 motion must be BEFORE Q is put to the jury) Redman (if 50a not granted, Q put to jury conditionally and CAN be reexamined later by 50b motion) Whelan v. Abell (50b limits a post verdict motion to a renewal of preverdict motion BUT P has to complain about 50b motion or waive HIS objection) Unitherm Food v. Swift (You have to first renew objection with 50b to appeal afterwards)

4. Motions to alter or amend the judgment or for a new trial

RULE 59 Motion for a new Trial, or to Alter or Amend judgment (SUPP 147) (10 days or less after judgment 59d) 59a1a has a list of reasons (not often granted!) -or 59c based on affidavits BUT RULE 61, HARMLESS ERROR REMITTITUR: new trial awarded UNLESS P will agree to lower award (if it will, the court will just award that) ADDITUR: A new trial MUST be awarded in this case (Supreme Court: tolerates remittur but not additur, see Dimmick v. Scheidt) RULE 60 MOTION FOR RELIEF from judgment 60b grounds for relief, usually when a party doesnt get a trial at all. -has to be newly discovered evidence not found in time for a 59b motion, Patrick v. Sedwick TEST -60b3 for fraud or misrepresentation (no more than a year after judgment EXCEPT when Fraud on the court, Hazel v. Atlas) -60b4 voidness for D not appearing, no SM jurisdiction -60b5 earlier judgment vacated if prospective relief -60b6 any other justified reason p. 96 outline

Aetna Casualty v. Yeatts (court can grant motion for a new trial if verdict against clear weight of the evidence, 59a1, but this rarely granted)

5. Motions for relief from judgment

Patrick v. Sedwick (Rule 60b2 relief denied on an evidentiary standard similar to Rule 59 TEST)

V. THE BINDING EFFECT OF PRIOR JUDGMENTS

A. Claim preclusion
CLAIM PRECLUSION (Res Judicata) -Affirmative defense under Rule 8c before Rule 56 motion (have to rely on evidence, so cant use 12b6) -can waive res judicata rights, but 15 allows amendment -A final judgment on the merits of a case by a court of competent jurisdiction bars the parties (and those in privity with them) from subsequently raising claims or defenses that should have been raised in the first action. *Each state has its own set of cases for claim preclusion: identical legal theory barred, same evidence barred even for different COAs (Jones), Cant sue on anything arising from same transaction or occurrence (most common, like 13a compulsory counterclaim test, ONLY FOR SAME Ds) -if judgment on the merits in federal court federal Q with subject matter and personal jurisdiction: original claimant cant pursue same claim or same transaction or occurrence that could have been brought in first suit (D HAS CLAIM PRECLUSION) -if the target of the first suit tries to sue original claimant on same T/O (rule 13 compulsory counterclaim), P HAS CLAIM PRECLUSION. DEFENSE PRECLUSION -if P sues D and wins, D cannot collaterally attack the judgment by a defense he could have raised originally (on same transaction or occurrence, compulsory counterclaim) -bars D from coming up with a new reason to defeat P ISSUE PRECLUSION, COLLATERAL ESTOPPEL Final judgment by a court of competent jurisdiction can also bar a party to the original case (and those in privity) from relitigating issues that were actually litigated and decided in the first case after the party had a full and fair opportunity to be heard, if the determination of those issues was necessary to the judgment that was entered. -Default judgments (Rule 55) DONT have ISSUE preclusive effect usually (not actually litigated/decided), but they DO have CLAIM preclusive effect. -Issue Preclusion and PERSONAL JURISDICTION:

Jones v. Morrisplan Bank (Single COA cant be split into parts and later litigated by same P because D will have claim preclusion defense even if P won originally raise all same T/O claims as P or waive them)

Moighty (if adverse judgment based on court logical error, ruling still has res judicata if you did not appeal under rule 59)

B. Issue preclusion

Russell v. Place (collateral estoppel only applies if issue was actually litigated and actually decided the precise issue not if there was a general verdict if more than one issue decided!) Rios v. Davis (finding of fact NOT material to the judgment in the previous action is NOT binding on later parties) Baldwin v. Iowa State Men (Issue preclusion applies when D waives personal jurisdiction objection through pleading conduct (appearing) and not appealing) Durfee v. Duke (There is issue preclusion when Qs were fully and fairly litigated in first suit, even if wrong, if loser doesnt appeal) NOTE here the higher court likely ignored a previous finding under 32a for being clearly erroneous. Bernhard v. Bank of America (party can assert res judicata even though NOT a party or in privity in earlier litigation who can BENEFIT, not who can be bound as for claim or issue preclusion) *CA law Blonder-Tongue v. U of ILL (UILL barred from relitigating what it had already lost (same exact issue) by defensive nonmutual issue preclusion) Parklane Hosiery v. Shore (Offensive nonmutual issue preclusion allowed for a second P on the same

-Issue preclusion and SUBJECT MATTER JURISDICTION Issue preclusion typically only binding for findings of FACT not law.

C. Who can invoke (and who is bound by) prior judgments

NONMUTUAL DEFENSIVE AND OFFENSIVE ISSUE PRECLUSION/ COLLATERAL ESTOPPEL: (traditional mutuality requirement has mostly been eroded) -both types allowed (defensive has better arguments for judicial economy) -the person against whom nonmutual collateral estoppel is asserted has to have had their day in court on SAME issue precisely. -7th amendment issues in Parklane by Rehnquist (majority takes a dynamic view of 7th amendment)

allegations, when one P has already won against D Parklane on same allegations) Martin v. Wilks (interprets rule 24b intervention, binding effect of prior judgment doesnt work for parties not joined by Rule 19!, cant expect them to join) SOME EXCEPTIONS to this general rule.

D. Intersystem preclusion

INTERSYSTEM PRECLLUSION (3 categories) Rules 41b, 12b6, 50 qualify as adjudications on the merits, but this only bars from retrial in the same exact cout (Semtek) -dealt with by 2 provisions of federal law: Full Faith and Credit Clause IV 1, Full Faith and Credit Statute 1738) A. State to State preclusive effect decisions: -States should use preclusion rules the original rendering state would have used NO more or less. B. Federal deciding on state preclusive effect decision: -addressed by the statute: federal courts will use what state would have C. State OR Federal deciding on previous FEDERAL preclusive effect decisions: (based on Scalia in Semtek) -not addressed by provisions above: (federal common law) 1. Federal question jurisdiction: federal common law used *If ruling on previous federal court, federal Q, look to Blonder tongue and Parklane: both Federal Court, Federal Question, so FEDERAL COMMON LAW. 2. Diversity jurisdiction: federal common law incorporates state law and piggybacks on the state law where it sits (to prevent forum shopping) EXCEPT if conflict with federal interests (like maybe a conflict with rule 37d sanctions or 13a pleading rules) *COULD therefore turn on state view on mutuality for collateral estoppel or whether it has a compulsory counterclaim requirement for res judicata

Semtek International v. Lockheed Martin (law of state in which federal court sits governs the claim preclusive effect of a judgment on the merits in a federal diversity action)

Beloved Erie Boxes: HOW A FEDERAL COURT FIGURES OUT IF STATE LAW APPLIES: (1) Does the federal Constitution answer the question? If so, you have to do what the Constitution requires. (supremacy clause) (2) Does a federal statute answer the question? If so, and if the statute is within Congress's constitutional authority to enact, you have to do what it requires. If Congress has prohibited states from making a rule, but haven't supplied answers of their ownUnderstood as giving courts authority to articulate "federal common law". Does a Federal Rule of Civil Procedure promulgated by the Supreme Court pursuant to the Rules Enabling Act (28 USC 2072) answer the question? If so, and if the rule is valid (which requires you to determine whether it "abridges, enlarges, or modifies any substantive right" within the meaning of 2072), (if it doesn t abridge enlarge or modify, then it s considered constitutional, and you have to do what it requires) NOTE: Box #3 substantive has a narrower meaning than in Box #4 If there is no federal rule that purports to reach the question, or if the federal rule is unconstitutional under the Rules Enabling Act, look to state laws: (4) If no provision of written federal law reaches the question, and if the question is something that state law would answer if the case were proceeding in state court, then you have to decide whether the Rules of Decision Act (28 USC 1652) requires you to follow the answer that the state law would give. 28 USC 1652: Rules of Decision Act, Laws of the states (Except where Constitution or treaties or acts of Congress provide otherwise), are the rules of decision in civil actions in US Courts, in cases where they apply. In general, you do what the state courts would do if the matter is "substantive," which you assess by using "the twin aims of Erie": (HANNA ADDS TWIN AIMS FOCUS) (a) trying not to encourage forum shopping between state and federal courts and (b) avoiding the inequitable administration of justice. If it doesn t encourage forum shopping between state and federal courts, and it avoids inequitable administration of justice, then state law applies. BUT if state rule DOESN T MEET THESE twin aims, it s considered procedural and state law DOES NOT govern, Federal Common Law will. NOTE: In Box #4, substantive is just defined by the twin aims of Erie (F-Shopping, equitable justice)

(3)