Civ Pro Class Outline

Civil Procedure Outline
INTRO & PERSONAL JURISDICITON 1. What is Civil Procedure: the body of law that sets out the rules and standards that courts follow when adjudicating private civil disputes. a. Cts use public power given to them to regulate private affairs i. US practices an adversarial model of resolving controversies where TOTAL responsibility is placed on the parties to: 1. begin suit, 2. shape the issues and 3. produce evidence b. Ds have a right to be heard and this is where NOTICE plays a role 2. Multiple Sources of Procedure a. Article I of Constitution lists the powers of Congress, which create the lower federal courts i. Congress has organized the states into circuits, 11 circuits and DC Circuit and Federal circuit (13 circuits) ii. STATE SYSTEM--Highest Court/Ct of last resort in the state system has the final word in regard to state law, unless theres a federal issue/question that says otherwise. iii. States have a great deal of power in regards to their own laws. b. Article II of the Constitution- Executive Branch lists the powers of the President and the ability to appoint judges. c. Article III of Constitution power of the Judiciary, judges get to serve life tenure (fed cts) i. Section II lists the jurisdiction of the Fed Cts 1. Subject Matter Jurisdiction (can never be waived) 2. Personal Jurisdiction d. Article IV/Full Faith & Credit Clause (based on valid judgments): provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States. It states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State i. A judgment isnt valid if there was not personal jurisdiction to begin with e. Statutes are a source of procedural information f. Federal Rules of Civil Procedure also a source of procedural information 3. Decisions litigants have to make upon commencing a lawsuit a. Where do I bring suit? Does Fed/State Court have SM jurisdiction? b. Who do I sue? Who are the defendants? c. What form of relief am I seeking? How am I going to get relief? 4. In personam/personal Jurisdiction = the power of a state to over parties to subject them (primarily based on defendants bc plaintiffs automatically

consent to states juris by bringing the action in the forum state) to its judgments a. Cts are granted the power to exercise jurisdiction by the state legislature via statute i. Do state statutory/legislative stipulations grant jurisdiction? Yes/No ii. Is there a constitutionality issue? Why? Why not? 5. Traditional/Pennoyer view of personal jurisdiction required the D to: a. Consent (Kane v NJ) b. Domicile c. Presence in forum (when served notice) i. Fraud/Force exception to cts exercising jurisdiction 1. Tickle v Barton (1956, Sup Ct of Appeals, W. Va.) [lawyer deceived D into entering forum with the sole purpose of serving process (alias service)] a. Rule/Principle: pg 29 If a person resident outside the jurisdiction of the ct.set it aside. Service procured thru fraud is invalid. d. A cts PJ is related to the territorial boundaries of the state in which it sits. e. PJ is distinct from service of process. 6. How does fairness play a role in the traditional Pennoyer v Neff view of personal jurisdiction re D or P or S? a. The Constitution and the 14th amendment, convenience for domiciles, no implied consent on D, force/fraud exception to service of process, Ds presence when served is a requirement in the old system which allowed states to insure against violations of due process 7. SPECIFIC JURISDICTION: jurisdiction is created only for a claim that arises from activity within the forum (not all types of claims) a. Hess v Pawloski (US Sup Ct, 1927) (beginning of long-arm statutes and SPECIFIC JURISDICTION) i. Facts: Hess (D), a resident of Pennsylvania, negligently struck and injured Pawloski (P) while driving in Massachusetts. Pawloski brought this action against Hess in Massachusetts. The court established personal jurisdiction over Hess under a statute whereby non-resident motorists involved in accidents in Massachusetts consented to the appointment of the Registrar of Motor Vehicles as the drivers agent for service of process. Process was served on the Registrar of Motor Vehicles as Hesss agent and Hess received actual notice of the suit. Hess contested jurisdiction. The trial court and the Supreme Judicial Court on appeal held that the courts jurisdiction was valid. Pawloski won the case on the merits in a jury trial. Hess appealed to the Supreme Court on the grounds that the

Massachusetts court did not have personal jurisdiction over him and the method of service of process used violated his due process rights under the Fourteenth Amendment. ii. Reasoning: In the public interest, the state may make and enforce regulationsto promote care on the part of all, residents and nonresidents alike who use its highways. The Massachusetts statute sought to put out-of-state drivers on the same level as resident drivers and did not discriminate against them. iii. Under Pennoyer, D could be sued only in his home state or where has property or is physically present, but the constitutionality of MAs long-arm statute is questioned. iv. Rule/Principle: Service on registrar is equated with service upon the D personally, Under the statute the implied consent is limited to proceedings growing out of accidents or collisions on a highway in which the nonresident may be involved...he shall receive and receipt for such notice of the service and a copy of the processno HOSTILE DISCRIMINATION AGAINST NONRESIDENTSstates power to regulate the use of its highways extends to their use by nonresidents as well as by residents. v. How is Hess consistent with Pennoyer? b. Long-arm statutes are statutes granting courts authority to exercise jurisdiction over nonresidents i. Fairness/Equality ii. Reasonableness 1. How is reasonableness measured? a. Pennoyer (territoriality was the gauge of reasonableness b. After Pennoyer, the reasonableness determined by minimum contacts c. Formalistic/Traditional view in Pennoyer v Neff is contrasted with Legal Realism POV in International Shoe v Washington d. McGee v International Life Ins. Co. (US Sup Ct, 1957) (CONTRACT W/SUBSTANTIAL CONNECTION TO FORUM) i. Facts: In 1944, Lowell Franklin, a resident of California, purchased a life insurance policy from an insurer subsequently acquired by Defendant International Life Insurance Co., who then mailed a reinsurance certificate to Franklin in California offering to insure him. Franklin accepted the offer and paid premiums by mail from his California home to Defendants office in Texas until his death in 1950. When the beneficiary, Plaintiff McGee, notified Defendant of Franklins death, they

refused to pay. Neither the original insurer nor respondent ever had any office or agent in California. ii. Reasoning: The Supreme Court found that it is sufficient for purposes of due process that the suit was based on a contract that had substantial connection with California. A state has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. Contact was HIGHLY RELATED to CLAIM. Fairness based on the estimate of inconveniences favored D coming to CA. e. Hanson v Denckla (US Sup Ct, 1958) (purposeful availment matters now) i. Facts: Mrs. Donner, a Pennsylvania resident, established a trust in Delaware naming a Delaware bank (Denckla, D) as trustee. Donner was the income beneficiary of the trust during her lifetime and the remainder was to go to her beneficiary. Donner moved to Florida and drafted a will naming her daughters (Hanson, P) as her primary heirs. Two grandchildren, the daughters of Donners third daughter, were named as the beneficiaries of the trust. Donner died and Hanson brought suit in Florida seeking to have the balance of the trust fund placed into the estate for probate on the grounds that the appointment of Donners grandchildren as beneficiaries was invalid. While that suit was pending another suit was filed in Delaware to determine the status of the trust. The Florida court found in favor of Hanson, holding that the trust was invalid and that the balance of the trust belonged to the estate. In the Delaware proceeding, Hanson asserted that the judgment in Florida was res judicata in regards to the Delaware action. The Delaware court held that the Florida court did not have in personam jurisdiction over defendant trustee and refused to honor the Florida courts judgment. The Delaware court found that the trust was valid. ii. Reasoning: To have a relevant contact under the min. contacts test, D must purposefully avail itself of the privilege of conducting activities w/in the forum State 1. The unilateral activity of a party to a nonresident D cannot satisfy the requirement as the nonresident Ds contact with forum 2. Nonresidents must be protected from the burden of defending a suit in a distant and inconvenient court. In this case the defendant bank had no office and transacted no business in Florida. The court held that this cause of action did not arise from acts or transactions in Florida. There must be some act by

which the defendant purposely avails itself of the privilege of conducting activities within the forum State. There was no such act here. f. Worldwide Volkswagen v Woodson i. Facts: The Robinsons (P) purchased an Audi from Seaway Volkswagen, Inc. (D1), a New York car dealership. One year later while driving through Oklahoma, another car hit them from behind, causing a fire which caused severe injuries to Mrs. Robinson and her two children. The Robinsons brought a products liability suit in state court against four parties including Seaway and its distributor, World-Wide Volkswagen Corp. (Ds). The defendants were New York corporations and conducted no business in Oklahoma. The defendants entered special appearances claiming that Oklahoma could not exert in personam jurisdiction over them by virtue of the Due Process Clause of the Fourteenth Amendment. The trial court found that it had jurisdiction and the Oklahoma Supreme Court denied defendants request for a writ of prohibition to restrain the trial judge from exercising in personam jurisdiction over them. ii. Reasoning: Although it was foreseeable that one of their cars could be involved in an accident in Oklahoma, foreseeability alone is not sufficient for personal jurisdiction under the Due Process Clause. The degree of foreseeability that must exist is not the mere likelihood that a product will find its way into the state, but that the defendants conduct and connection with the state are such that he should reasonably anticipate being haled into court there. Purposeful availment provides clear notice of jurisdiction. 1. Forseeability based on Ds purposeful availment so that it is also forseeable that D would be sued in a forum; No Relevant Contact established in WWVW a. Factors to determine fairness i. Burden of D ii. States interest iii. Ps interest iv. Interstates judicial systems interest in obtaining efficient resolution g. Burger King Corp v Rudzewicz (US Sup Ct 1985) i. Can contract into PJ h. Calder v Jones: (US Sup Ct, 1984) [beginning of effects test, purposeful direction?] i. Facts: Petitioners South is a reporter, and Petitioner Calder is president and an editor, of Petitioner National Enquirer. South

wrote an article that accused Respondent of a drinking problem that was so severe that it affected her acting career. Calder reviewed the article and edited it to its final form for publication. Respondent brought a suit for libel, and South and Calder challenged Californias personal jurisdiction since neither had any physical contacts with California, particularly as it pertained to this article. South did rely on sources from California, and Respondents life and career were centered in California. arguments are irrelevant to jurisdictional analysis. ii. Reasoning: The United States Supreme Court held that California had personal jurisdiction over Petitioners. The first step in the analysis is to determine the focal point of the harm suffered, and that was in California. The Court then determined that Petitioners actions intentionally aimed at a California resident, and the injuries suffered would be in that state. Asahi Metal Industry Co. v. Superior Ct (Sup Ct, 1987)
i. j. 8. GENERAL JURISDICTION: a D can be sued in the forum for a claim that arose anywhere and not related to his activities therein a. Has to be a statute that grants jurisdiction over nonresident party and service has to have been effectuated in a way that is consistent with the statute b. International Shoe v Washington (US Sup Ct, 1945) The minimal contacts test first introduced. A corporation is only present so far as activities are carried out in a place on its behalf. i. Facts: International Shoe Co. (D, appellant) was a Delaware corporation with its principle place of business in St. Louis, Missouri. It had no offices in the state of Washington and made no contracts for sale there. International Shoe did not keep merchandise in Washington. International Shoe employed 1113 salesmen on commission for three years who resided in Washington. Prices, terms, and acceptance or rejection of footwear orders were established through St. Louis. Salesmen did not have authority to make contracts or collections. The state of Washington brought suit against International Shoe in Washington State court to recover unpaid contributions to the unemployment compensation fund. Notice was served personally on an agent of the defendant within the state and by registered mail to corporate headquarters. The Supreme Court of Washington held that the state had jurisdiction to hear the case and International Shoe appealed to US Supreme Ct. ii. Reasoning: Minimum contacts with the forum state can enable a court in that state to exert personal jurisdiction over a party consistent with the Due Process clause. A casual presence of a

corporation or its agent in a state in single or isolated incidents is not enough to establish jurisdiction. Acts of agents of the corporation, because of the nature, quality, and circumstances of their commission, may be deemed sufficient. Consent may be implied from the corporations presence and activities in the state through the acts of authorized agents. The activities carried on by D in Washington were systematic and continuous rather than irregular or casual. To the extent D needed it, D received the benefits and protection of the laws of the state and its being subject to jurisdiction there does not offend traditional notions of fair play and substantial justice. c. Quality and quantity of Ds activities play a role due to Shoe. No Maybe Maybe Yes Casual Continuous and Systematic Level of Activity 9. Jurisdiction based upon Power over Property a. Shaffer v Heitner we learn that 10. Jurisdiction based on Physical Presence a. Burnham v Superior Court (Plurality that is Rules based approach) Does Due Process require a similar connection between litigation and Ds contact with the forum state where D is served while physically present in the forum? i. Scalia = did D enter the forum? Was D served in the forum? Voluntary presence or involuntary presence? Was there a tradition of exercising jurisdiction based on fraudulent means? ii. Brennan = was there purposeful availment/direction on the part of D? Brennans reasoning is based on minimum contacts. 11. Jurisdiction based on Consent a. Insurance Corp of Ireland v Compagnie De Bauxites de Guinee (Sup Ct 1982) i. Cts always have jurisdiction to determine whether or not they have jurisdiction ii. Jurisdiction can also be waived (given up, voluntarily relinquished) 1. By putting the issue of jurisdiction in question, the insurance company did not have the option of blocking a reasonable attempt of CBG to meet its burden of proof 2. When this happens, the states interest are not taken into consideration 12. Rule 4 Service of Summons Unrelated Relatedness Highly Related

a. Rule 4(k)(1)(a) = Fed ct can assert jurisdiction to the same extent as the state (long arm statute and due process clause) b. Rule 4(k)(1)(c) = Fed can assert jurisdiction when authorized by fed statute by Congress (contacts w/forum state dont matter, only contacts with US matter) c. Rule 4(k)(2)(a) = claim arises under Fed law, but no fed law that provides for nationwide service of process AND does have sufficient contacts with the US in total that its consistent with the 5th amendment i. Bin Laden would constitute an example of when to assert 4(k)(2)(a) GENERAL TEST FOR PERSONAL JURISDICTION 13. Was the person present when served? Is D a Domiciliary? Did they consent? Or Absent D with such contacts w/forum that looks like Perkins or Helicol? a. Is general jurisdiction appropriate here? i. Taking contacts, adding them up and do these contacts bring us to Perkins line or Helicol line? b. Is specific jurisdiction appropriate here? i. For each of those contacts, has there been purposeful availment/direction? 1. (Opinions of Oconnor, brennan from Asahi or Kennedys test from Mcintyre will govern) ii. For the PA/PD contacts, were they continuous and systematic and how related to COA, then argument based on previous case iii. Reasonableness inquiry comes next ------------------------------------------------------------------------------------14. Subject Matter Jurisdiction: power to hear disputes of a certain kind. Can be waived at any time. a. Diversity Jurisdiction i. Amount in Controversy 1. Each P must meet the minimum requirements ii. Diversity of Parties 1. Statute limits jurisdiction by requiring an amount in controversy and COMPLETE diversity (no D can be a citizen of any state as any P) a. The Constitution doesnt necessitate these requirement iii. Injunction cases 1. We look at amount in controversy by inquiring into the value of injunction by the party seeking fed jurisdiction a. Ps side if it moved to fed ct b. Ds side if it removed from state ct to fed ct b. Federal Question Jurisdiction (Arising Under)

i. Article III Section II of the Constitution (The Ingredient Test) 1. Arising Under means = If theres a federal ingredient, then its an issue for Federal ii. In Section 1331, arising under means the federal issue is a NECESSARY part of Ps complaint iii. Osborn v Bank of the US 1. Facts: The state of Ohio levied taxes on each branch of the United States Bank in Ohio. Although the Court ruled in McCulloch v. Maryland that such taxes were unconstitutional, Ohio persisted in its enforcement of the tax. Defying a circuit court injunction, Ralph Osborn, the Ohio State Auditor, forcibly seized funds from the Bank. The circuit court then ordered Osborn and his colleagues to repay the amount seized. 2. Reasoning: The charter on which the bank was founded was valid and based on fed laws then fed cts have the power to decide this issue; any time there is a federal ingredient, whether as a defense or claim by P, theres federal jurisdiction. iv. 28 USC 1331 means something different than Article III Section II (Original filings that arise in Fed district courts) 1. Louisville & Nashville R. Co. v Mottley (beginning of statutory test for fed courts) (One of the rising under tests) a. Facts: Mottley and his wife (P) were injured while riding a train on the Louisville & Nashville Railroad (D) in 1871. A settlement was reached in a personal injury lawsuit whereby Mottley would release claims for damages against the railroad in exchange for a contract that granted them free transportation for life. The railroad refused to renew the Mottleys pass in 1907 because an act of Congress forbade the giving of free passes or free transportation. Mottley filed an action in federal court in the Western District of Kentucky. Diversity jurisdiction was unavailable because Mottley was domiciled in Kentucky and the railroad was incorporated in Kentucky. Mottley contended that Louisville & Nashville Railroad would raise a constitutional defense in its answer thereby creating federal subject matter jurisdiction. The court tried the case on the merits and entered judgment for Mottley. The railroad appealed directly to the

Supreme Court which sua sponte raised the issue of whether the federal courts had jurisdiction to hear the case. b. Reasoning: Anticipating that a defendant will raise a defense that includes a federal question is not sufficient to claim subject matter jurisdiction. There was no diversity of citizenship and the only way to maintain this suit would be if it arose under the Constitution or laws of the United States. The court held that the mere allegation that a defendant will raise a federal question in his answer is not sufficient to create jurisdiction. Mottleys complaint was based on a contract claim and did not raise a federal question. c. (Mottleys well pleaded complaint rule) must contain a federal question in the bare elements of the claim that the P must establish in order to prevail i. The Federal question is not something that the P needs to make their claim 1. The Fed issue has to be an element in the cause of action to arise under the statute a. The job of a complaint is to lay out a cause of action/claim. ii. Federal jurisdiction can turn over the definition of an element of a cause of action in state law; 1. By allowing states to determine the elements of a cause of action, they can determine if Fed jurisdiction occurs over a complaint. d. TB Harms v Eliscu i. Holmes Creation test: whenever federal law creates a cause of action (creates the substantive right), there is always federal jurisdiction (with few exceptions) 1. However, just bcuz a state law created the COA, does not mean there is not Fed Jurisdiction ii. It is sometimes necessary to determine if the fed statute indeed created the cause of action (coa for private actions for ppl to sue) iii. See Shoshone Mining Co. v Rutter 1. Resting for standards of liability on local law. All rules for liability depend on local law e. Merrell Dow Pharmaceuticals Inc. v Thompson (1986) i. Well Pleaded Complaint Rule + Federal Interest Substantiality Test

1. Facts: Plaintiffs, Thompson and MacTavish sued the D, Merrell Dow Corporation on several counts of negligence due to the effects of the use of the drug Bendectin during pregnancy. Count IV alleged that Ds misbranded their product by not providing warning of the potential dangerous side effect. This misbranding was a violation of the FDCA. Ps also allege that the violation of the FDCA in the promotion of Bendectin directly and proximately caused the injuries sustained by Ps babies. 2. Reasoning: Since there is no federal cause of action for violations to FDCA requirements, the fed ct reasoned that it would directly go against congressional intent to provide a private federal remedy for violation of the FDCA statute. If Congress wanted to provide a fed private remedy for violations to the FDCA statute, they would have done so. The Sup Ct also claimed that the claim that the violation of the FDCA statute was insufficiently substantial to justify fed ct jurisdiction. f. Having an expansive view of federal jurisdiction can prevent states from exercising jurisdiction and adjudicating its own laws. Every time Fed cts and state cts have concurrent jurisdiction, there is a federalism concern. g. Grable v Darue [(a)Mottley test is necessary, but not sufficient; (b) Fed Substantiality Test from Merrell Dow, (c)Cant disturb fed/state balance of power & (d)Fed issue must be disputed] i. Facts: The IRS seized P's property to satisfy P's tax delinquency. IRS then sold the property to D. P did not exercise its right to redeem the property within 180 days of the sale even though P was given notice of the sale through certified mail. 5 years later, P brought a quiet title action against D and claimed that P was not notified in the exact manner required by federal statute. (personal service v. certified mail) D removed the case to Federal District Court as presenting a federal question because the claim of title depended on the interpretation of the notice statute in federal law. P sought to remand the case to state court. District Court denied and granted summary judgment to D. ii. Reasoning: Federal question jurisdiction is usually invoked by Ps pleading a cause of action created by federal law. However, federal-question jurisdiction can also arise over state-law claims that implicate significant federal issues. Smith held that a statelaw claim could give rise to federal-question jurisdiction so long as it appears from the complaint that the right to relief

depends upon the construction or application of federal law. There is not a single, precise, all-embracing test for jurisdiction over federal issues embedded in state-law claims between non-diverse parties. Whether P was given notice within the meaning of the federal statute is an essential element of the quiet title claim. It is the only issue in the case. The government has a strong interest in the prompt and certain collection of delinquent taxes; the government thus has a direct interest in the availability of a federal forum to vindicate its own administrative action h. Empire Healthchoice Assurance v McVeigh i. Grable test, that fails, but it tell us that Fed cts are more interested in questions of law vs questions of fact 1. Facts: In 1997, Joseph McVeigh was involved in an accident that caused him serious injury. Between 1997 and 2001, when he died, he received over $150,000 from his health insurance plan (well go into much more detail about this plan, to your chagrin, in a moment). Meanwhile, after Joseph died, his wife filed a lawsuit on behalf of his estate, herself, and their child. This lawsuit was against the folks who she alleged were the cause of Josephs accident, and they ultimately settled out-ofcourt for about $3.1 million. After the case was settled, Josephs insurance company filed a federal lawsuit against McVeigh to reclaim the $150,000+ it had paid out under the plan. Empire HealthChoice Assurance, Inc. (Empire) administers the plan for folks in New York, so theyre the company who paid benefits to McVeigh and then later sued his wife and estate. Now, the reason Empire sued is because the plan includes a reimbursement provision. Basically, this provision says that when someone is injured by another person and gets money from that person (by lawsuit, settlement, etc.), they are obligated to reimburse Empire for any benefits Empire paid-out for the injury. If the insured person does not provide such a reimbursement, Empire is required to take reasonable efforts to recover the money in question. It was with this provision in mind that Empire sued McVeigh. 2. Issues: Is there federal jurisdiction because federal common law covered the reimbursement claim or, alternatively, because the plan itself was federal law?

3. Reasoning: The reimbursement claim is not a creature of federal law, even though it involves federal interests. ii. When were asking about the importance of it from the Fed system POV, we want to think about it from the Fed sovereigns POV, we have to pay attention to what Congress did (or didnt do) 1. Did Congress think it was important to authorize the exercise of jurisdiction? iii. How central is the fed issue to the cases over which fed cts assert jurisdiction? 15. Supplemental Jurisdiction (1367) Every single claim asserted in a case in federal court MUST satisfy a basis of federal subject matter jurisdiction. HOWEVER, Supplemental Jurisdiction occurs when theres a valid federal jurisdiction-invoking (anchor) claim and additional claims brought in that DO NOT satisfy an independent basis for fed sub matter jurisdiction. Supplemental jurisdiction allows the fed ct to hear claims that could not get into Fed ct by themselves (due to lack of diversity or fed question jurisdiction status) Additional claim MUST be so closely related to the original Jurisdiction-Invoking claim that it can be considered part of the overall dispute a. Supplemental Jurisdiction exists when at least 1 of the claims of P against D has a basis for Fed jurisdiction (either bc of diversity or arising under grable test) other state claims can be litigated in Fed ct. b. Supplemental jurisdiction implicates joinder and preclusion doctrine. The basic idea of preclusion doctrine is I should only be able to litigate my claims once and if I have claims that relate to each other, I should litigate at one time. i. You can lose a claim even by never bringing it in. c. Do we need a statute to have supplemental jurisdiction? i. Pendent jurisdiction = what the P could add to the dispute 1. Pendent claim = 1 party against whom P has multiple claims 2. Pendent party = suing different parties on one lawsuit ii. Ancillary jurisdiction = everything that happens after claim gets filed 1. Counterclaim 2. Cross-claim 3. Etc. d. United Mine Workers of America v. Gibbs i. Facts: Both P & D were from Tennessee. P was employed as a mine superintendent in the Grundy Company. However, miners, who were represented by a local union affiliate of D, inflicted physical injuries upon P after learning that P had

employed laborers represented by a rival union. At trial in the United States District Court for the Eastern District of Tennessee, the jury returned a verdict in favor of P on both the federal and state law claims. However, the court set aside the federal law award based upon the ground that damages were not proven. The United States Court of Appeals for the Sixth Circuit affirmed. ii. Issue(s): Whether the relationship between the existing statecreated claim and the federal claim were close enough to permit the conclusion that the entire action before the court comprises but one constitutional case? iii. Reasoning: The court focused on the rule that both the state and federal claims derive from a common nucleus of operative fact. Furthermore, the court noted that due to the nature of supplemental jurisdiction, it is not always apparent at the time of filing the complaint that the federal issues will be dismissed. The court stated that it often occurs at different stages in the litigation process. iv. Holding: Fed cts had supplemental jurisdiction over the state law claim. e. Ask is there at least 1 claim that qualifies under Fed sub matter jurisdiction. i. Is there an independent basis for Fed jurisdiction for the state law claim? 1. Only after going through analysis, do we ask the supplemental jurisdiction question. 2. Is there a common nucleus of operative fact over the anchor claim? (Article III test) a. Common Nucleus of operative fact = same transaction or occurrence ii. Once decide, Fed ct has power, fed ct has the discretionary determination to exert jurisdiction iii. Is supplemental jurisdiction ALWAYS discretionary? No, 1367(a) and (b); Yes, and 1367(c) determines when its discretionary. 1. When Feds power to exercise jurisdiction is discretionary, the ct can change its mind in the middle of the cause of action. Why would fed ct do this? a. State law claims predominate b. Anchor claim that invoked Fed jurisdiction is dismissed c. Other reasons such as fairness & judicial economy (ie, jury confusion) iv. Benefits of Supplemental Jurisdiction

1. Efficiency 2. Convenience 3. Consistency of Outcome by permitting a fed ct to determine all claims that are transactionally related to a claim that invokes fed sub matter jurisdiction v. Problems with Supplemental Jurisdiction 1. Could eviscerate the complete diversity rule for diversity cases f. Finley v. United States (US Sup Ct, 1989) Ruling Inspired 1367 i. Facts: Petitioners husband and two children died when their plane crashed into some electric transmission lines. Petitioner brought state claims in a state court against San Diego Gas and Electric Company and against the city of San Diego for negligence in the maintenance of the lines, but then she sued Respondent, the United States government, in federal court under the Federal Torts Claims Act (the Act) because they were the ones actually responsible for the lines (fed ct has exclusive subject matter jurisdiction). The Act required that a suit against Respondent can only be brought in federal court. Petitioner moved to add the other defendants into the federal claim, but there was no independent basis for bringing them into federal court. The district court agreed to grant pendent jurisdiction for the sake of judicial efficiency, but the appellate court reversed. ii. Issue(s): Whether Petitioner can establish supplemental jurisdiction in federal courts over defendants with state claims when there is no independent basis for bringing the action there. iii. Reasoning: Parties that otherwise could not be sued in federal courts can not be brought into federal court solely on the basis of having their claims share the same facts as the claim mandated to the federal courts. iv. Holding: The majority of the United States Supreme Court held that just because the Act required Respondent to be challenged in federal court does not mean that other defendants can be brought into federal court if there is no independent basis for doing so. There needs to be more than a common nucleus of facts, but rather express authority given by Congress or through the Constitution. This decision was later overruled by Congress. v. 1367(b) will allow the supplemental jurisdiction of a claim where Ds are joined and conflict with diversity confirm w Reinert--YES

vi. 1367(b) only precludes supplemental jurisdiction in claims asserted for (i) diversity and (ii) by Ps. g. Exxon Mobil Corp. v Allapattah Services, Inc. i. Facts: The Appeals Court of the United States is split on the decision concerning supplemental jurisdiction. The Supreme Court consolidated two cases; one from a court that agrees and another from a court that disagrees with supplemental jurisdiction. 1. Case 1: Exxon: In 1991, 10,000 Exxon dealers filed a class-action lawsuit against Exxon Corporation. The dealers alleged Exxon intentionally and systematically schemed to overcharge for fuel purchased from Exxon. After winning the case, the court ordered an interlocutory review as to whether supplemental jurisdiction over all plaintiffs was proper. The court found that supplemental jurisdiction was proper. 2. Case 2: In this case a 9 year old girl sued Star-Kist for damages. She alleged she suffered unusually severe injuries when slicing her finger on a can of tuna. Her family also joined the suit seeking damages for emotional distress and medical expenses. The court found the child but not the parents met the amount-incontroversy requirement thus supplemental jurisdiction would be improper, even though both claims arose from the same case and controversy. ii. Issue(s): Whether a federal court in a diversity action may exercise supplemental jurisdiction over additional plaintiffs whose claims do not satisfy the minimum amount-in-controversy requirement, even when those claims are part of the same claims that do satisfy. iii. Holding: As long as one plaintiffs claim satisfies the minimum amount-in-controversy requirement, the court may exercise jurisdiction over additional plaintiffs case that fall short of the requirement, when all claims arise from the same case or controversy. h. Questions to ask re: 1367 i. Must be focused on who the P is and the how they were joined ii. Do we have an independent basis over each claim for Fed sub matter jurisdiction iii. 1367(a) Is there at least 1 claim over a civil action for which fed dst ct has original jurisdiction? 1. If so, is the claim(s) so related to the (anchor claims) in the controversy that they form part of the same case or controversy

a. Is there complete diversity? 2. Is there a need for 1332 analysis 3. Is there a claim by a P against a person made a party under Rule 14, 19, 20, 24 iv. 1367(c) codifies Gibbs and determines if the court declines supplemental jurisdiction, what the reason is. 1. State law claims predominate 2. Anchor claim that invoked Fed jurisdiction is dismissed 3. Other reasons such as fairness & judicial economy (ie, jury confusion) i. Owen Equipment & Erection Co. v. Kroger i. Facts: Plaintiff, a citizen of Iowa, filed suit against Omaha Public Power district, a Nebraska citizen, in federal district court, where the basis of federal court jurisdiction was diversity. Respondent amended the complaint naming Defendant, an Iowa corporation, as an additional defendant. ii. Issue: Whether a federal court has ancillary jurisdiction over a third-party defendant named in an amended complaint in a suit in which complete diversity exists between the plaintiff and the original defendant, but where the newly named thirdparty defendant is a citizen of the same state that the plaintiff is. iii. Reasoning: The relevant statute in this case, 28 U.S.C. Section: 1332(a)(1), confers upon federal courts jurisdiction over civil actions where the matter in controversy exceeds $75,000 and is between citizens of different states. This statute and its predecessors have consistently been held to require complete diversity of citizenship. That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different state from each plaintiff. When the Plaintiff amended her complaint to assert a claim against the Defendant, complete diversity was destroyed just as surely as if she had sued Defendant initially. If a common nucleus of operative facts were the only requirement for ancillary jurisdiction in a diversity case, there would be no principled reason why the Plaintiff in this case could not have joined her cause of action against Defendant in her original complaint as ancillary to her claim against Omaha. iv. 16. Mandatory Joinder of Persons (Rule 19) [Can override Ps joinder choice] a. Indispensable Parties 19(b) = when a partys appearance or service upon them is so essential that jurisdiction cannot be granted without it. i. Is it a real good idea to join this party? ii. This party cant be joined bcuz of jurisdictional problem?

iii. Case cant proceed without absent party iv. Bank of California v Superior Ct (US Sup Ct, 1940) 1. Facts: Testate died leaving in her will funds to be disbursed to several legatees. One legatee, a niece, alleged a contract providing her with all the proceeds of decedents estate. Service of process was served on executor, residuary legatee (St Lukes Hosp) and Bank of California. 2. Issue(s) Does service need to be processed on all legatees under decedents will and not just the select few the P served? Are the other legatees indispensable parties such that their absence makes jurisdiction over the matter unsupportable? 3. Reasoning: The case here is one where P may litigate her claim against the appearing Ds alone that binds those Ds only without necessarily affecting the rights of absent Ds. 4. Holding: This case is not a case with indispensable parties v. Why is Bank of California different from the hypothetical? The only thing at stake here is the money given to St. Lukes. There is no prejudice concern against the absent legatees. Indispensable Party is one where judgment in favor of one party would necessarily affect the rights of third parties not present in the action i. Necessary parties are so interested in the controversy that they normally be made parties in order to enable the court to do complete justice, but their interests can be separable from the rest or their presence cannot be obtained. What are ways that a party can be prejudiced? Rule 19 adopts the principle for Required Joinder of Parties Provident Tradesmen Bank & Trust Co. v Patterson (Sup Ct 1968) i. Facts: Four individuals were in a car accident involving a car (whose owner was not present at the time) and another truck. Three of the people were killed, including the driver of the truck, and one survived. One decedents estate brought an action to enforce a previous judgment against the drivers estate and the car owners insurance company but not the car owner, on the grounds that the driver was covered under the car owners policy because the driver had permission to drive the vehicle. 1. They are requesting a declaratory judgment that Cionci drove the car with permission from Dutcher.
b.
c. d. e.

ii. Issue(s): Should the court have dismissed an action if joinder of Dutcher was not feasible? Does the parties failure to raise an issue regarding joinder of Dutcher prevent the appellate court from addressing the issue on appeal? Does a judgment binding on the parties but not on Dutcher affect the evaluation of whether the Court should have been required to join Dutcher? iii. Reasoning: The Courts evaluation shows that whether a party is indispensable requires a careful analysis requiring an application of each articulated factor to the facts and circumstances of the case. The Court emphasizes that such an evaluation should be made prior to the disposition of the case. The fact that judgment had been entered before the Court of Appeals found Dutcher indispensable was disapproved of by the Court, as some of the factors considered under Rule 19(b) of the Federal Rules of Civil Procedure became less relevant. The theme of the Courts decision expresses a reluctance to dismiss a case for failure to join a party. The court should dismiss the case only it cannot dispose of a case without disposing of the rights of the absent party. iv. Holding: Not all parties have a substantive right to be joined under Rule 19 of the Federal Rules of Civil Procedure. The interests articulated in Rule 19(b) must be evaluated to determine if we should go forward without absent party. f. How do you conclude that a party is indispensable? Pragmatic inquiry that is context driven. i. Would the interests of the absent party be impaired practically? ii. Would there be prejudice to the existing parties if the party is not joined? 1. Would there be conflicting judgments? g. Rule 19(a)(1)(A) is there the possibility that this would be satisfied h. Rule 19(a)(1)(B)(ii) how likely do we think these things are going to happen; are they likely enough to dismiss the case? i. Can we assert personal jurisdiction? ii. Will it destroy subject matter jurisdiction? 17. Impleader (Rule 14) Used to permit Ds to bring someone else into the case who is responsible for the wrong to the P. a. Fairness & Efficiency concerns b. How does this affect Subject Matter Jurisdiction? c. Contribution Claim = contributed to the wrong to the P d. Indemnification Claim = agreed to be held liable to the D for wrongs e. If someone is seeking leave, questions to ask: i. Was it intentional? ii. Does it prejudice the 3rd party defendant?

iii. Does it cause unnecessary delays? iv. Does that complaint state a claim upon which relief can be granted? 18. Rule 20 joins parties, Rule 18 joins claims. Rule 19 & 14 is about existing parties bringing in additional parties. 19. Intervention (Rule 24) is about nonparties inserting themselves into the COA. a. What are some benefits and cons of Intervention? b. Smuck v Hobson i. Facts: Case centered around a class action brought on behalf of Black and poor children. Court found that the children were being denied their unconstitutional rights to equal educational opportunities because the District of Columbia schools were being operated on a basis that was racially and economically discriminatory. The Board of Education chose not to appeal but Smuck and Hansen filed notices of appeal. Dr. Hansen and twenty parents who dissent brought motions to intervene. The District Court allowed those motions and that is what is currently on appeal. ii. Reasoning: iii. Holding: c. Intervention as of Right: the court HAS to let such party to intervene i. Right to intervene by Federal Statute ii. Intervener has an interest relating to the property/transaction that is subject to the litigation such that its interest may be practically impaired and unprotected unless the interests are represented by existing parties d. Permissive Intervention: the court has the discretion to allow party to intervene 20. 1441 REMOVAL=transfer of case from state court to fed ct a. Entire case gets removed, not just Fed claims b. Only allowed for Defendants c. Removal is appropriate only if Fed ct would have had jurisdiction over the case to begin with i. Must request within 30 days after receipt of Complaint ii. ALL DEFENDANTS must agree for REMOVAL 1. Nominal party = only included to destroy diversity d. 1441(c) has broader reach than 1367. e. Shamrock Oil & Gas Corp. v Sheets (Ds counterclaim cannot create the basis for arising under jurisdiction) i. Facts: P is from Delaware; D is of Texas. P has a contract claim in excess of the diversity jurisdictional amount against D. D has an entirely unrelated contract claim against P, also in excess of the jurisdictional amount.

ii. Issue(s): Whether 1331(a) allows a plaintiff who is defending against a counterclaim to remove to federal court (i.e. does the word defendant or defendants in 1331(a) apply to plaintiffs who are defending against a counterclaim). iii. Reasoning: It is irrelevant whether the counterclaim was compulsory or permissive under state law, or even factually related to the main claim. Defendant means what it says. A plaintiff cannot remove, even if he is counterclaimed. f. If the D is from the same state that the lawsuit in filed and he wants to remove the suit for diversity purposes, he cannot. 21. PLEADING (Rule 8(a)) a. Whats the basis for jurisdiction b. The claim showing that Pleader is entitled to relief c. Demand for relief sought Pleading served the purpose for giving D notice of the claim and P for the basis for stating a claim. d. Dioguardi v Durning [12(b)(6) = dismissal for failure to state a claim] i. Facts: Dioguardi (P) imported bottles and tonics from Italy and claimed that Durning (D), Collector of Customs at the Port of New York, improperly seized and sold them at auction. Dioguardi, representing himself pro se, drafted his own defective complaint for an action for conversion. Durning filed a motion to dismiss for failure to state a claim. ii. Issue(s): What must be set forth in a complaint in order to withstand summary judgment? iii. Reasoning: In order to withstand summary judgment, the complaint need only put the court and defendant on notice of the cause of action. The complaint need only present a short and plain statement of the claim demonstrating that the pleader is entitled to relief. The federal courts through the Federal Rules of Civil Procedure have adopted the notice pleading standard. With the exception for claims addressed in Rule 9 (i.e. claims alleging fraud, mistake, or special damages), the federal courts require that complaints include merely a statement of subject matter jurisdiction, a short and plain statement of the claim, and a demand for judgment. e. Rule 12 is an effort to dismiss the claim prior to trial and discovery i. Rule 12(b)(6) is a device to test whether the plaintiff alleged enough to get past the pleading stage and have the case remain in litigation stream; viewed in light most favorable to nonmoving party 1. Court does not look beyond face of pleadings in 12(b)(6) motion

a. Ct assumes allegations are true and inquires whether allegations state a claim that the law recognizes 2. Ct does NOT look at evidence f. Conley v Gibson i. Appears beyond doubt that P can prove NO SET OF FACTS in support of his claim which would entitle him to relief. ii. Fed Rules do not require P g. Bell Atlantic Corp v. Twombly p 568 i. Facts: P (Twombly) filed a claim under 1 of the Sherman Act against D (Bell Atlantic), which requires P to show that D entered into a conspiracy to thwart the demonopolization of their respective markets. P instead showed in their complaint that D restrained trade and engaged in anticompetitive practices. These practices are not illegal in themselves. It must be proven that the Ds agreed among themselves to do this. P showed "parallel conduct" - D preventing competitors from entering the market and failure of any D to attempt to compete in the market area of any other D. ii. Issues: (1) Can an antitrust claim survive a motion to dismiss when it only alleges that the monopolists engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting conspiracy or agreement to do so? (2) Are there any other times besides fraud and mistake cases when complaints that conform to FRCP 8(a)(2) are insufficient? iii. Reasoning: An antitrust claim cannot survive a motion to dismiss when it only alleges that the monopolists engaged in certain parallel conduct unfavorable to competition, if there is no factual context suggesting conspiracy or agreement to do so. An antitrust claim is insufficient if it only conforms to FRCP 8(a)(2); it must include some contextual facts that make the claim plausible. The factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Nothing in the complaint intimates that the resistance to the upstarts was anything more than the natural, unilateral reaction of each D intent on keeping its regional dominance. If alleging parallel decisions to resist competition were enough to imply an antitrust conspiracy, pleading an antitrust violation against almost any group of competing businesses would be a sure thing. There is a plausible explanation for the noncompetition of the Ds -- each was sitting tight, expecting their neighbors to do the same.

h. Court says this wording of Conley with any set of facts doesn't apply anymore. i. This is a big deal bec a lot of courts still use this requirement. i. New Limit: Conceivable is not enough. It must be Plausible. Plausible = more probable than not. j. Concerns: i. Too high a standard - Kicks out cases too early because of information asymmetry that one side has all the information and the other can't access it. In this case, the Phone Cos (D) know whether or not there was a conspiracy, and Twombly (P) can't know bec it was a secret agreement with no record. ii. Too low a standard. Letting in cases without merit; the problem with this is that the high discovery costs, may lead the D to settle with the P bec it's cheaper for them than going through discovery. This is an unfair settlement. k. SUMMARY New in Twombley i. Plausibility Analysis no more conceivable, only plausible 1. What does plausibility mean? When one is drafting a complaint, one should do his best to state as many factual allegations that are had that affect the cause of action 2. Judicial experience & common sense are parts of Plausibility analysis a. Can be subjective b. Judicial experience Is only revealed AFTER the opinion is released so theres a notice problem 3. A ct can ask, it is willing to be deferential or forgiving to the P bcuz the information is only some that the D would have 4. What is meant by looking at alternative explanations ii. Conclusory Analysis a fact must be taken as true only if it is a fact, not if it is a legal conclusion 1. At the 12b6 stage we take the factual allegations in a Ps complaint to be true, we disregard the conclusory allegations. a. What is meant by conclusory? Twombly tells us that at the minimum (negbreach, duty, causation, damages) if all the complaint said was the elements of the cause of action, then complaint conclusory. 2. After conclusory allegations are gone, we are left with factual allegations, these factual allegations and their inferences have to show an entitlement to relief that is plausible.

a. Plausible = we add in judicial experience and common sense b. In deciding whether or not something is plausible, we might look to alternative explanations for what happened. i. ALTERNATIVE EXPLANATION NEEDS TO BE OBVIOUS MORE LIKELY iii. Twombly is moving the Conley Standard. 1. From: any set of facts that could be consistent with illegality 2. To: need enough to nudge over the line from conceivable to plausible. In this case the other explanations leave the case in conceivable and if just conceivable, pleading is not good. TWOMBLY is not limited to antitrust cases; for EVERYTHING l. Ashcroft v. Iqbal (2009) i. Facts: Plaintiff alleges he was unconstitutionally arrested and imprisoned. ii. Issues: Whether there was failure to state a claim did he plead factual matter that, if true, proves his constitutional rights were violated? iii. Reasoning: Complaint does not require a bunch of detailed factual allegations, but does require more than an unadorned the-defendant-unlawfully-harmed-me accusation. Complaint must contain sufficient facts to state a claim that is plausible. Court asks for more than a possibility that the defendant is liable based on threadbare conclusions and rules that plaintiff must have stated more than legal conclusions in the complaint. In this case, the plaintiff needed to show that the government acted with a discriminatory purpose it is because race rather than in spite of it. m. What are the elements of a cause of action? This tells us what Ps have to plead. i. What does Iqbal give us on conclusory? Repeat elements of a cause of action 1. If the allegation is solely based on elements of a cause of action, then its conclusory 2. If cause of action requires the D had an intent, and pleading alleges D had intent, then its conclusory ii. Iqbal is an extension of Twombly. Gives us a little more definition on conclusory. n. Allegations of Ds knowledge have been viewed as both factual and conclusory. 22. Amendment to Pleading

a. Rule 15 (a)(1)(A) i. Maybe lawyer made a mistake and need to make a revision (only amend once under this provision) b. Rule 15(a)(1)(B) i. Amendment to Pleading is allowed to encourage efficiency and allow for amendment as a matter of law to prohibit question from going to the judge c. Rule 15(a)(2) i. Beeck v AquaSlide N Dive 1. Facts: Beeck (P) sustained severe injuries while riding a water slide at a company outing. Beecks complaint named Aquaslide (D) as the manufacturer and sought to recover damages. After three insurance companies investigated the matter Aquaslide admitted that it was the manufacturer, but several months later denied having manufactured the slide after a visit to the site by Aquaslides president. The trial court granted defendant corporations motion to amend its answer to deny having manufactured the slide and to have that issue resolved in a separate trial. The jury in the separate trial found in favor of D, and the first court granted summary judgment in favor of D. P appealed 2. Issues: May a defendant amend its answer to deny a fact which it had previously admitted (after the statute of limitation ran out)? 3. Reasoning: The trial court judges decision to permit D to amend its pleading and to bifurcate the trial was reviewed under the standard of abuse of discretion. On appeal the court held that the trial court had not abused its discretion in allowing the amendment. The court also ruled that the grant of a separate trial was within the trial court judges discretion because the severity of the plaintiffs injuries would have been prejudicial to the defendants claim of non-manufacture. The party opposing an amendment to a pleading must show undue prejudice. The court rejected Ps contention that moving to amend after the statute of limitations had run on Ps claim demonstrated bad faith. P had relied on the conclusions of three insurance companies and did not deny having manufactured the slide until Ds president visited the site. ii. In the absence of issues of (1) bad faith (evidence that party was stringing opposing party w facts until it becomes prejudicial to such party), (2) undue prejudice to opposing

party (overbearing prejudice), (3) undue delay (time btwn discovering the problem and seeking amendment), (4) dilatory motive (is the only reason youre doing this is to delay things); (5) failure to cure deficiencies and etc. (pg 625) d. Worthington v Wilson i. Facts: Worthington, Plaintiff, was arrested by two police officers who allegedly twisted Plaintiffs hand and broke it. Exactly two years later, Plaintiff filed a complaint in state court against Peoria Heights, Illinois and three unknown police officers, Defendants, claiming the police officers violated his civil rights. Peoria Heights removed the action to federal court. Four months later, Plaintiff filed an amended complaint, which named the real identity of the two officers as Defendants. Defendants moved to dismiss the amended complaint on the grounds that the statute of limitations had run and that the complaint failed to state a proper claim under 42 U.S.C. Section: 1983 and for sanctions. There was a hearing in front of the magistrate and the magistrate recommended that the motion to dismiss and the motion for sanctions be allowed. Plaintiff filed an objection to the recommendation. The court held an additional hearing on the pending motions. ii. Issue(s): Does Plaintiffs amendment of its complaint to identify the two police officers relate back to the date the original complaint was filed under Rule 15(c) of the Federal Rules of Civil Procedure? iii. Reasoning: Under the old version of Rule 15(c) of the Federal Rules of Civil Procedure, a party later added by amendment must receive actual notice of the action pending against it before the statute of limitations runs in order for the amendment to relate back to the date of the original complaint. Under the new version of Rule 15(c) of the Federal Rules of Civil Procedure, the party need only be aware of the action pending against it within 120 days of the complaint being filed in order to relate back to the date of the original complaint. The failure to name parties due to lack of knowledge is not naming different parties by mistake. Therefore, the exception for mistake under Rule 15(c) of the Federal Rules of Civil Procedure does not apply if the party seeking amendment did not initially know the identity of the party. Therefore, Plaintiffs later amendment to include the identity of the police officers does not relate back to the date the complaint was originally filed. Illinois state law pertaining to relation back does not govern the issue. State law only applies when the state law addresses an issue the federal law does not. Because

it is clear that Seventh Circuit precedent states that unknown parties are not mistaken parties subject to the relation back rule, the federal law addresses the issue. Thus, federal law applies. e. Moore v Moore i. Facts: Plaintiff Rueben Moore sued Defendant Sidney Moore for custody of their child. Defendant answered and the matter came to trial on October 20, 1976. Defendant then filed a motion to conform the pleadings to the evidence. Defendant sought to assert a counterclaim for custody, child support, separate maintenance, and attorneys fees. Defendant also filed a second motion that itemized the attorneys fees. Defendant was awarded all relief she requested, including custody of the child. Plaintiff was given visitation rights provided he posted bond. Plaintiff appealed, arguing that the Court should not have awarded Defendant any relief because Defendant did not request any relief in the pretrial pleadings ii. Issues: Did Plaintiff impliedly consent to try the issue of Defendants counterclaim of custody, child support, visitation and bond, attorneys fees, and separate maintenance raised after pretrial proceedings pursuant to Rule 15(b) of the Superior Court Rules of Domestic Relations, which is identical to Rule 15(b) of the Federal Rules of Civil Procedure? iii. Reasoning: Under Rule 15(b) of the Superior Court Rules of Domestic Relations, which is identical to the Federal Rules of Civil Procedure, pleadings may be amended to conform to the evidence, even post-judgment, when there are issues brought up at trial which were not raised in the pleadings are tried by consent of the parties. This consent can be express or implied. There must be an indication that the party objecting to the amendment had actual notice of the issues and had an opportunity to respond to the issues not included in the pleadings in order for the amendment to be permissible. Failure to object to evidence or introducing evidence that relates only to the unpleaded issues and not other claims is a good indication that the party opposed to the amendment had notice and opportunity to respond to the issues in question. As to child custody: Plaintiff was aware that the court would decide who would get custody of the child, not just whether Plaintiff would get custody. In addition, the Court heard evidence about whether Plaintiff or Defendant should get custody. As to child support: The trial judge stated that the best interests of the child would require a ruling on support as well as custody. In addition, Plaintiff did not object to Defendants

introduction of evidence relating to the childs financial needs. As to visitation and bond: Because the trial court has broad discretion when awarding custody in order to do was is in the best interests of the child, she was within her discretion to allow visitation on condition that Plaintiff post bond as part of the custody order. As to attorneys fees: It is customary to award fees to the prevailing party in a custody case. In addition, Plaintiff did not object to evidence of attorneys fees introduced and the trial court held a hearing before the fees were awarded. As to separate maintenance: There was no mention of separate maintenance in the pleadings nor was there evidence that pertained to maintenance alone. The evidence of Defendants financial needs pertains to the child support issue as well. Therefore, the Court erred in allowing the pleadings to be amended to conform to the evidence in connection with the separate maintenance issue. f. Rule 15(b) allows wife to bring in the other claims. By husband not objecting to the introduction of evidence re Child Support and Separate Maintenance so husband was on notice and deemed to have implicitly consented. g. What are the strategic reasons not to object to the introduction of evidence? To object? i. If object, likely court will grant amendment and I get the possibility of getting more time to prepare for the amendment ii. To not object, I risk getting barred from objecting to the issue 23. Rule 11 MOTIONS FOR SANCTIONS a. Hadges v Yonkers Racing Corp. i. Facts: Plaintiff Hadges sued Defendant Yonkers Racing Corp. in both state and federal court for barring Plaintiff from working at Defendants racetracks. The federal claim was based on violation of due process and was dismissed for lack of state action. There was also an affidavit filed by Defendant that the court understood to mean that Plaintiff could work at other tracks. The Court noted that if a racetrack in New Jersey followed Defendants decision, Plaintiff could establish state action. In the state suit, where Plaintiff claimed he was blackballed from working at all New York racetracks, all counts were dismissed. Plaintiff then sued Meadowlands Raceway, a New Jersey agency, in federal court on the same grounds as his original claim against Defendant, which was settled and included an affidavit, stated that Defendants ban provided a basis for Meadowlands ban. Plaintiff appealed the New York federal action under Rule 60(b) of the Federal Rules of Civil Procedure on the grounds that the original federal

action should be vacated because the affidavit of Defendant which stated that Plaintiff could work at other tracks was fraudulent. Plaintiff and his attorney both submitted affidavits that said that Plaintiff had not worked in 4 years and presented evidence that a racing board had barred him from a race in 1989. It was later revealed that Plaintiff was barred from the race in 1987. Defendant moved to dismiss the action, and presented evidence that Plaintiff had raced in Monticello, another track, and also moved to impose sanctions for misrepresentation of the date Plaintiff was barred from the 1987 race and failing to disclose the state action to the federal court. The District Court dismissed the complaint but did not impose sanctions because the suit was not so frivolous as to warrant sanctions under Rule 11 of the Federal Rules of Civil Procedure. The District Court requested Plaintiff and attorney submit arguments against the imposition of sanctions. The District Court then imposed sanctions against Plaintiff for misrepresentation and his attorney for failure to investigate his clients assertions and for not disclosing the state court action. Plaintiffs attorney sent a letter to the Court, arguing that the Court erred in imposing sanctions against him and his client, and objecting to comments the Court made about the attorney in its order imposing sanctions. The District Court considered this letter an application to reargue the sanctions and wrote an order denying the application, which contained additional comments about Plaintiffs attorney. Plaintiff appealed from these rulings. ii. Issues: Should Plaintiff be sanctioned for misrepresenting when he was barred from the 1987 race, not accurately representing where he had worked in the past four years and failure to disclose the state court action? Should Plaintiffs attorney be sanctioned for relying on his clients word regarding the 1987 incident when Plaintiff was barred from the race, relying on his clients word regarding his work history for the past four years and for failing to disclose the state court action? iii. Reasoning: Regarding sanctions against Plaintiffs attorney, Rule 11 of the Federal Rules of Civil Procedure requires that attorneys conduct a reasonable inquiry under the circumstances as to whether the attorney can find evidence to support the factual statements. There was evidence on the record indicating that the 1987 incident took place in 1989, based on an undated sheet and the affidavit from Plaintiff. In addition, Plaintiffs attorney admitted the error and indicated the sheet was relevant anyway because it showed state

action between Defendant and a New York agency. There was evidence on the record indicating that Plaintiff had not worked for four years. Plaintiff had sent letters to racetracks requesting work and none responded. In addition, the New Jersey agency admitted that it had banned Plaintiff from working. Therefore, it was reasonable for Plaintiffs attorney to believe Plaintiff had not worked in four years. Finally, both Plaintiff and Defendant would have an obligation to disclose the state court action if it would have been helpful to the District Court. Because there was no final decision in the state court action, there is support that disclosure was not helpful. Even if it was, Defendant would have to disclose its existence as well. The District Courts comments in its sanctions order show bias either towards Plaintiffs attorney personally or those that represent unpopular clients, which further supports reversal of the sanctions order. b. Later advocating facts that a lawyer knows to be untrue is sanctionable. c. Legal Arguments: Rule 11(b)(2): lawyers often want to make arguments that change the law and we dont want lawyers to fear sanctions because of it. 11(b)(2) usually kicks in if atty continues to make claim after continuously losing. 24. NOTICE AND OPPORTUNITY TO BE HEARD a. 2 prong test, first must determine whether rule or statute prescribes a method for giving notice and an opp to be heard. Second, must assess whether rule is constitutional. b. Proper svc of process satisfies both requirement of notice and opportunity to be heard bcuz it includes instructions to D as to when and how to respond to avoid default judgment c. Individuals with property interests at stake are entitled to notice and opportunity to be heard. i. However, reasonableness of notice in a given case is to be assessed under all the circumstances. d. Mullane v. Central Hanover Bank & Trust i. Reasonably calculated driven by circumstances of each case ii. Facts: Central Hanover Bank (P) was the trustee of a common trust fund formed by pooling the assets of a number of smaller trusts. Central Hanover Bank petitioned to the New York Surrogates Court for a judicial settlement of the trust. The only notice provided to beneficiaries was via publication in a newspaper. Mullane (D) was appointed attorney and special guardian for a number of beneficiaries who either were

unknown or did not appear. D objected that notification by publication did not provide due process to its beneficiaries. iii. Issues: Is notice given to out of state parties by publication in a newspaper, when the parties addresses were known, constitutional in light of the Due Process Clause of the Fourteenth Amendment? iv. Reasoning: Notice must be reasonably calculated to inform known parties affected by the proceedings. However, constructive notice by publication was acceptable with regard to missing or unknown parties or for those whose whereabouts could not be ascertained by due diligence or for whom future interests were too conjectural to be known with certainty. 1. 3 Groups in Mullane case: a. Group of beneficiaries whose interests or whereabouts could not with due diligence be ascertained, publication OK & constitutional b. Group of beneficiaries whose whereabouts were not known in ordinary course of business, but could be discovered upon investigation, publication OK form of notice cuz practical difficulties and expense that would attend investigations into their status would be to burdensome on trustee (under these circumstances) c. Group of present beneficiaries of known place of residence, notice by publication NOT reasonably calculated to reach them. No excuse for failing to give individual notice. Personal service not necessary, by mail would suffice. 2. Requires sufficient notice, NOT BEST notice e. Dusenberry v United States i. Does not require that the government must provide actual notice but rather requires that the P must attempt to provide actual notice. 25. Venue Rules Think of Venue as the 3rd prong. (i) personal jurisdiction [determine whether D can be sued in particular state] , (ii) subject matter jurisdiction [determines if P can sue in state or fed ct] and (iii) venue [where, within chosen court system case will be filed] a. In State courts, venue is generally a matter of statutes and constitutional provisions b. Certain kinds of disputes are considered inherently local and venue is always local

i. Ex. Probate proceedings (theres only one state where those proceedings are proper) c. There can be multiple proper venues for certain actions unless theres a venue with exclusive subject matter jurisdiction. d. Review 1391(b) e. Federal Venue: can be species of SMJ or of Venue (inherently local doctrine) i. Venue is strategically important. 1391 governs venue and provides different rules for diversity or fed question jurisdiction. 1. Diversity 1391A: a. All Ds reside in state, then P can choose any district in state where at least 1 D resides b. Where a substantial amount of events took place or substantial part of property is situated c. Where any D is subject to PJ at the time law suit commences, if there is no district in which the action may otherwise be brought 2. Fed question 1391B: a. All Ds reside in state, then P can choose any district in state where at least 1 D resides b. Where a substantial amount of events took place or substantial part of property is situated c. District where any D is found, if there is no district in which the action may otherwise be brought ii. When is a civil action brought? When someone files a complaint. iii. Bates v C&S Adjusters, Inc. (Fed Question claim) 1. Facts: C&S Adjusters, Inc. (Defendant) mailed a collection notice to Bates (Plaintiff) at his former address in Pennsylvania. The notice was forwarded to Plaintiffs current address in New York. Plaintiff sued Defendant for violation of the Fair Debt Collection Act in the United States District Court for the Western District of New York. Defendant argued that venue was improper because none of the events that gave rise to the claim occurred in the district where the claim was filed. The District Court granted Defendants motion to dismiss for improper venue and Plaintiff appealed. 2. Issues: Was venue proper, under 28 U.S.C. 1391(b)(2), in the United States District Court for the Western District of New York where a collection notice was forwarded to

the debtors current residence even though Defendant did not intend to mail it there? 3. Reasoning: The mailing of a debt collection notice is considered a substantial part of events regarding actions pursuant to the Fair Debt Collection Act. Because Defendant could have prevented the mail being forwarded into New York by requesting that the post office not forward it and Defendant did not otherwise object to personal jurisdiction, it would not be unfair for Defendant to be subject to a trial in New York. f. The Bates court is clear that the harm is the receipt of the letter; they also suggest that there was some control bcuz could have put Do Not Forward on it. g. By not putting Do Not Forward, D is not purposefully availing itself to NY, but it is saying that D took the risk that the letter could arrive anywhere i. Venue is to give deference to the Ds interests. Ps harm is rarely considered when determining venue ii. Always prefer venue under 1391(a)(1) or (a)(2) or 1391(b)(1) or (b)(2) 1. Cant use 1391(a)(3)/(b)(3) unless there is no other venue that it can be brought under 26. Transfer between Venue a. Ps win more often in nontransfer cases. In state system, each state is treated as a separate sovereign and cannot transfer to another state must dismiss. In fed system, cases can be transferred to other fed ct in different state in fed system. 1404 (transfers from a proper venue to a more proper venue, the law thats applied in a transfer case is the law of the original state venue) 27. Forum Non Conveniens a. Gulf Oil Corp v. Gilbert i. Facts: Negligence action for allowing Ps warehouse in Virginia to burn. P is a Virginia resident. D is a Pennsylvania corporation qualified to do business in both Virginia and New York. ii. Issues: Whether the action should be dismissed from the New York federal district court under the doctrine of forum non conveniens given the facts of the case, even though in personam jurisdiction and venue are proper. iii. Reasoning: The doctrine is one of discretion of the court. However, the interests of the plaintiff, the defendant and the forum state in the litigation need to be considered. Here there is no strong interest for any party to have the litigation in New York. In fact, the interests weigh against it. The P may not

choose an inconvenient forum to harrass the D. Also, the state has an interest in avoiding overcrowding of its own courts and subjecting its citizens to jury duty in a case having no ties to their state. b. Piper Aircraft v. Reyno i. Facts: A plane manufactured by Piper Aircraft (D1), a Pennsylvania corporation, crashed in Scotland. Parts of the airplane were manufactured by Hartzell (D2), an Ohio corporation. Reyno (P) was appointed administrator for the families of five UK citizens involved in a plane crash in their suit against the defendants for negligence and strict liability. The families of the dead passengers sued Air Navigation, the operator of the plane (McDonald), and the estate of the deceased pilot in a separate action in the UK. ii. Issues: (1) Can Reyno prevail on the defendants motion to dismiss on the grounds of forum non conveniens by showing that the substantive law that would be applied in the alternative forum is less favorable to Reyno than that of the chosen forum? (2) Did the district court act unreasonably in concluding that fewer evidentiary problems would arise if the trial were held in Scotland, and in determining that the public interest factors favored trial in Scotland? iii. Reasoning: When an alternative forum has jurisdiction to hear a case and when trial in the chosen forum would establish oppressiveness to a defendant out of proportion to the plaintiffs convenience, or when the chosen forum is inappropriate because of considerations affecting the courts own administrative and legal concerns, the court may in the exercise of sound discretion dismiss the case by applying the list of private and public interest factors. In a motion to dismiss for forum non conveniens, a court should consider both private and public interest factors. Private factors include the relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, the cost of attendance of witnesses, the possibility of viewing the scene if appropriate to the action, and other practical matters related to making the trial easy, expeditious, and inexpensive. Public factors include administrative difficulties of the courts, interest in having local controversies adjudicated at home, the interest in having the trial in a forum that is familiar with the law governing the action, the avoidance of unnecessary problems in conflict of laws or the application of foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty. The court held that private

factors favored Scotland because the wreckage of the plane and witnesses were there. The court also held that public factors favored Scotland because Scotland had a greater interesting in hearing a case that concerned Scottish citizens. The court also held that the fact that Scotland might have been less favorable to Reyno did not provide a reason to dismiss the defendants motion. c. Piper sets out some presumptions. If P is subject to adversely affected by changing the forum/law, it is not conclusive of forum non conveniens. Except when the change of law deprives P of legitimate remedy to the point of no remedy at all. i. Still would have to interpret and evaluate foreign law but to a lesser degree ii. Yes, ct defers to Ps choice of forum, but that deference has less force when that P is foreign b/c convenience is less prominent 28. Discovery a. Through discovery, you learn relevant info from other parties. Discovery is typically supervised by the parties themselves. The court generally oversees the process, but mostly when parties have a disagreement. i. Discovery points out (i) where the genuine issues of disagreement lie and (ii) that a partys position may be less supported by evidence and encourage settlement b. Required initial disclosures under Rule 26(a)(1)(A): i. Name, address & contact info for anyone with discoverable info ii. Copy of documents that disclosing party uses to support claims or defenses iii. Computation of damages and evidentiary support iv. Insurance agreement if any insurer is liable to satisfy judgment c. Required Disclosures re Expert Witnesses 26(a)(2) i. Made at least 90 days before trial ii. Experts testify re their professional opinions d. Required Pretrial disclosures 26(a)(3)(A) i. Each party serves to other party (& files w/ct) detailed info re evidence he anticipates presenting at trial e. Discoverable v Admissible Info Rule 26(b)(1) i. Any info is discoverable if its nonprivileged matter that is relevant to any partys claim or defense. 1. Discoverable information must be reasonably calculated to lead to discovery of admissible evidence 2. Privileged Information is confidential communications between particular people a. Privileges can be waived

i. To assert privilege must be expressly make the claim and describe the nature of documents, communications or tangible thing not produced or disclosed
f. Proportionality i. Discovery is limited to what might be called a general sense of proportionality 1. The court must limit the frequency or extent of discovery; when discovery is: a. 26(b)(2)(C)(i) - Duplicative or unreasonably cumulative and can be obtained from a source that is more convenient, less burdensome or expensive. b. 26(b)(2)(C)(ii) party seeking discovery has had ample opportunity to obtain the info by discovery c. 26(b)(2)(C)(iii) burden of discovery outweighs benefit g. Work Product Protection Rule 26(b)(3) i. Work Product: 1. Consists of Materials prepared in anticipation of litigation or for trial 2. Ordinarily may not be discoverable a. Party wanting protection has burden of raising the work product issue cuz failure to do so waives the protection 3. Though states documents and other tangible things includes non-tangibles 4. EXCEPTION--Work product protection can be overcome by party seeking info if it shows: a. Substantial need for the materials to prepare his case b. Cannot without undue hardship, obtain substantial equivalent by other means 5. Mental impressions, conclusions, opinions and legal theories are not discoverable 6. Not just atty work product, can be product generated by almost anyone if generated in anticipation of litigation 7. Anyone has a right to obtain his own previous statement abt the action ii. Not a privilege becuz: 1. It does not necessarily consist of confidential communications 2. Its protection is not absolute

29. Pretrial Devices for Obtaining Information--Depositions and Discovery a. Rule 27 b. Rule 30 Depositions--can be used for party and nonparty witnesses. i. Expert testimony ii. Police officers at the scene of accident 30. Summary Judgment RULE 56 = judgment entered as a matter of law w/o trial bcuz there is no genuine issue of material fact to dispute a. Whoever is moving at the SJ stage has the burden of the production b. The issue w/summary judgment is that it can take the case away from the jury i. If theres indisputable evidence, MSJ should not be granted c. In order for D to move for SJ, D must do 1 of 2 things i. Show affirmative evidence in the record that negates some essential evidence/element in the Ps claim, thus no genuine dispute of material fact and entitled to judgment as a matter of law or show affirmative defense 1. P can show evidence that she can still win ii. Show Me SJ motion = Absence of Evidence. D demonstrates to the ct that P does not have any evidence to support her claims. Must point to place in record where evidence SHOULD EXIST. This is ok so long as the nonmoving party has the burden of proof. Must be no evidence in the record to support Ps claim 1. Judges disagree as to when movant has met its burden of production d. Whats the difference btwn burden of production/persuasion? i. Proof: who has to prove a particular element of a claim or defense. Usually person with burden of proof also have burden of persuasion. ii. Production: who has to come forward with evidence? iii. Persuasion: how persuasive does your evidence have to be? e. When does a party have to do nothing to oppose the MSJ? i. A party can always choose not to respond to the motion and court will still decide motion in light most favorable to the nonmovant f. Is the standard no genuine issue of material fact or no reasonable jury could differ = it is the same thing. g. Could a reasonable jury find for the nonmoving party? Trials are meant to resolve disputes of material fact h. Different from motion to dismiss for failure to state a claim = Rule 12(b)(6), which is aimed at claimants allegations. i. P has stated a claim (that survived a 12(b)(6) motion) and at some point parties assert that there is NO NEED FOR A TRIAL and court may rule as a matter of law

j. Ct may consider evidence i. Summary Judgment is a vehicle by which the court may determine whether there is a dispute as to the material facts 1. Ct considers pleadings, discovery, materials on file & affidavits (must be authenticated) Material fact = one that may affect the outcome of the case under governing law i. Deciding what a material fact is turns on knowing the law and the intent/purpose of the interested party ii. For legal liability turns on purpose and intent Genuine issue = occurs when a reasonable jury could reach different conclusions concerning the material fact The nonmovant has to overcome the burden of evidence in a motion for summary judgment If one hasnt taken depositions and offered no interrogatories, then one must wait for trial i. Dyer v MacDougall 1. There is no effective appeal bcuz district ct would be basing its decision on demeanor evidence and the appellate court has no access to it. Adickes v Kress (did not grant summary judgment) Allegation that D conspired w restaurant owner to deny her svc and rights. Case tried in fed ct in SDNY. She has no admissible evidence that there was a policeman in the store. Why does D have the burden of production? D is moving for SJ. P still had the burden of proof. What does the D have to show that they have foreclosed the possibility that there was no possibility. The issue is that if the policeman was in the store, there was a genuine issue of fact. When you move for SJ, you put in evidence to support your motion or show lack of evidence. You must meet your burden for the nonmovant to respond. o The evidence the P had didnt matter What would my argument be that they havent foreclosed the possibility? o Ask customers o Communicate nonverbally (circumstantial evidence) i. Facts: Plaintiff, a teacher, went to Defendants restaurant with 6 of her African-American students. Plaintiff was denied service and later arrested. In her lawsuit, Plaintiff alleged, among other things, that there was a conspiracy between the Defendant and the police to arrest her because she was
k.
l. m. n.
o.

accompanied by her black students. Defendant moved for summary judgment on the conspiracy count. In support of the motion, Defendant presented the following evidence: (1) deposition testimony of Defendants restaurant manager that he had not communicated with the police and Plaintiff was denied service only because he was fearful of a riot; (2) affidavits from the chief of police and the two arresting officers that Defendants store manager had not requested that Plaintiff be arrested; and (3) Plaintiffs own deposition testimony that she had no knowledge of any communication between Defendants employees and the police. Plaintiff, on the other hand, argued that summary judgment was not proper because she had alleged in the complaint, also in her deposition, and had also an unsworn statement of one of Defendants employees that there was a policeman in the restaurant at the time Plaintiff was refused service. Plaintiff argued that although she had no knowledge of an agreement between Defendant and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial. The District Court granted Defendants motion for summary judgment. ii. Issue: Is summary judgment proper on the conspiracy count? iii. Reasoning: As the moving party, Defendant had the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party. Defendant did not carry its burden because of its failure to foreclose the possibility that there was a policeman at the restaurant while Plaintiff was awaiting service, and that the policeman reached an understanding with some restaurant employee that Plaintiff not be served. Here, Defendant presented no evidence in support of its motion for summary judgment that the officer was not present at the store. If a cop were present, it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Defendant employee had a meeting of the minds and thus reached an understanding that Plaintiff should be refused service. Twombly dismissed pre-discovery (no admissible evidence) Would Twombly go to jury under the Adickes standard? Yes 12(b)(6) At Motion to Dismiss = P has to show no evidence, just to make allegations. Rule 12 = get rid of case before discovery

Rule 56 = lower burden of persuasion and get rid of case after discovery What is the connection between discovery and summary judgment? Decisions made in discovery determine things at the summary judgment stage. An affidavit, under oath of personal knowledge, is ordinarily sufficient to raise a genuine issue. Summary judgment looks for fact issues; it does not decide them. If its good for my side that the D doesnt remember, then dont fight him. Depositions are to get all the good, bad and ugly out and know ahead of time. how is this going to affect me at summary judgment level? 31. Celotex Corp. v Catrett (can grant summary judgment) a. NEW CONSIDERATION--D no longer has the burden of foreclosing the possibility of Ps claims. b. (Has the D met its burden of proof?; How may D meet its burden) i. Type 1 or type 2 meets your burden of production. 1. Can bring forth affirmative evidence that makes it clear that no genuine issue of material fact exists 2. Can show opposing partys absence of evidence to support a material fact) [only can be used when you dont have the burden of proof] c. P has the burden of establishing the elements of her claim. Once she does this, the burden of proof/production shifts to the D. i. Facts: Ps husband died due to asbestos exposure. D moved for summary judgment on the basis that no evidence had been presented that the decedent had been exposed to Celotexs products. ii. Issues: Must summary judgment be entered against a party who fails to meet his burden of proof on any essential element of the cause of action. iii. Reasoning: Yes. Summary judgment must be entered against a party who fails to make a showing sufficient to establish an element essential to case. d. Essentially saying that P cant provide any evidence to support her claim of any identification of the asbestos product. i. The evidence shows that Mr. Catrett used to work for Mr. Johnson and Celotex sold products to Mr. Johnson. ii. Why doesnt ct resolve the admissibility issue? District court granted MSJ; ct of appeals reversed this saying that Celotex bore the burden of providing evidence and based on Adickes and it didnt meet it. Sup Ct says that CT of appeals misread

Adickes and Celotex can meet its burden by pointing out that P has no evidence to support its claim. 1. If Celotex meets its burden and moves for MSJ and Catrett does nothing to oppose Celotexs MSJ, see 56(e) 2. If Ms. Catrett moves for SJ without presenting evidence, she has not met her burden bcuz she has the burden of proof. 3. Ex., What if Catrett answered an interrogatory that Mr. Hoff is a witness to Mr. Catretts use of celotex products, and Celotex files a Show Me motion? a. MAJORITY--For Rehnquist, P would have to take deposition of Hoff herself. Nonmovants burden to amplify the evidence or somehow record the testimony of witness who supports her claim. If P wants to rebut MSJ, she has to affirmatively get testimony. b. For White, what do you do when theres some evidence out there that support Ps claim? Movant sometimes has the burden of showing evidence on record is not material. May have to depose Hoff. c. DISSENT--For Brennan, conclusory assertion that nonmoving party has no evidence may require moving party to depose nonmoving partys witnesses; Celotex would have to depose Hoff. iii. Basic standard for MSJ: can a reasonable jury find for nonmoving party on the basis of the evidence in the record? iv. Adickes/Celotex are playing with the idea of when the moving party meets its burden of production, does the burden shift to the nonmoving party. e. Scott v Harris (ct found indisputable evidence) i. Facts: P (Harris) was in a car chase with the D (Scott) and alleged the D used excessive force against him in violation of his 4th amendment rights, thereby causing serious injuries to P. There was a video revealing the details of the car chase that explicitly contradict Ps version of the events of the car chase. D moved for summary judgment on the basis of qualified immunity. P contests this motion. ii. Issues: Was the Ds motion for summary judgment properly denied by the district and appellate court? iii. Reasoning: NO. The MSJ should have been granted on behalf of the D. Motions for summary judgment should be granted in the case as the facts are viewed in the light most favorable to the nonmoving party only when there are genuine issues of

fact in dispute. The videotape clearly depicts a different story from the one P tells. Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact. 1. Was this reasonable? If theres a choice btwn deadly force and a lesser force, choose the lesser force. f. Anderson v Liberty Lobby i. Facts: Libel case against Investigator magazine for printing malicious material against Carto & Liberty Lobby magazine calling them neo-nazi and many other anti-semitic names. ii. Issues: Does the granting of a MSJ need to include the evidentiary burden as a requirement? iii. Reasoning: Yes, a judge must view the evidence presented through the prism of the substantive evidentiary burden. g. The ct of appeals is saying we dont have to filter these disputed facts thru a higher standard. However, Sup ct says they would need to ask if a reasonable jury could find clear and convincing evidence [given the appropriate burden of persuasion] h. Matsushita Electric v. Zenith Radio Corp i. Facts: (American firms that sell TVs) sued the defs. (Japanese firms that sell TVs), claiming that they had violated the Sherman Act by conspiring to drive American firms from the American market by selling TVs in the country below cost. (Predatory-Pricing Scheme) ii. Reasoning: The Ps failed to show a "genuine issue of material fact" because: 1. They did not present evidence "that tends to exclude the possibility" that the alleged conspirators acted independently 2. The Japanese firms could have lowered their prices in American markets simply to be competitive (independent incentive). 3. If the Japanese firms were in fact engaging in predatory pricing this conduct would be economically irrational a. It is HIGHLY probable that the defs. would LOSE money in this alleged scheme. b. If it doesn't make economic sense for the firms would conspire that suggests that they did NOT conspire. c. The allege conduct tended to benefit, rather than injure the Ps. iii. Issue: Do the Ds qualify for a motion for SJ based on the implausibility of the Ps allegation? Yes

1. Is there any genuine issue of material fact? No 32. Dismissal of Actions (Rule 41) a. VOLUNTARY DISMISSAL--Generally, Voluntary dismissal allows the moving party to extricate herself from the lawsuit w/o affecting her legal rights i. This is an efficient tool ii. Usually does not have effect of an adjudication on the merits (nonbinding) b. McCants v Ford i. The law of the state did not extinguish the cause of action; the Statute of limitations argument was less prominent in the McCants case c. INVOLUNTARY DISMISSAL--For failure to prosecute (41b) i. Primarily due to lack of due diligence on the part of the P 1. Ct does not need to provide an adversary hearing before acting or afford notice of its intention to dismiss 33. Default judgment (RULE 55) a. Default Judgment is when you dont respond to the Ps pleading; it is a binding judgment in favor of either party based on some failure to take action by the other party. b. Default is when a D fails to appear but has answered the complaint i. Coulas v Smith 1. Facts: P filed a claim against the D and cross claimant for 2 counts valued at approximately $4K. Cross claimant denied liability to the P on both counts and filed an action against D for any liability incurred by cross claimant for the Ps claims. Cross claimant also filed for a claim of $4K and $500 in attorneys fees. D counterclaimed against P for $18K in damages and answered the cross claimants complaints. Trial set for one date and vacated by P and cross claimant til December. 2. Issues: Was the ct correct in granting a default judgment against D for its failure to appear at the December 1958 trial? 3. Reasoning: Yes 34. Trial by Jury RULE 38 The right to a jury trial is preserved by way of the 7th amendment to the Constitution; this right attaches only to fed suits at common law; NOT EQUITY; Becuz right is preserved, fed cts are locked into a historical test to determine whether or not there would have been a right to jury trial in 1791 in common law cts.

a. b.
c. d. e.
f.
o This determination is based on the remedy sought. Who may the parties ask to find the facts? We have a right to a jury trial in certain cases and a limited examination of jury findings i. If one doesnt demand a trial by jury, it is waived Where does the right to a jury trial exist? 7th amendment Why do we require consent from both parties to waive jury right? i. Becuz were worried that someone will shop for judges. How do we know if a case is tried to a jury or not? i. HISTORICAL TEST: what was tried in a ct of law in 1791 is tried to a jury. What was tried to a ct of equity in 1791 is tried to a judge. ii. RELIEF BASED TEST: 1. Am I asking for legal relief? Could be provided by a court by law and should be tried to a jury. 2. Equitable relief (injunction, restitution) is tried to a judge. Beacon Theatres v Westover i. Facts: Fox owned a movie theatre with exclusive rights to show movies before other movie theatres in the area could show them. Beacon threatened Fox with an antitrust lawsuit if Fox did not discontinue the practice. Fox sought a declarative judgment that it was not violating antitrust laws and an injunction against Beacon to keep Beacon from filing suit until the declaration was decided. Beacon filed a counterclaim accusing Fox of antitrust violation. Beacon demanded a jury trial as provided by FRCP 38(b). The district court viewed the issues raised by Fox to be based in equity and directed that these issues be tried to the court before jury determination of the validity of the antitrust violation. However, one issue that would be answered in equity was whether the two theatres were in competition; this is an element of the antitrust violation that juries typically decide. Beacon filed a writ of mandamus against the district court judge. ii. Issues: How should a court handle a case where legal and equitable issues are intermingled in a single suit? iii. Reasoning: Under FRCP 1, 2, , the same court may try both legal and equitable causes in the same action. Whatever permanent injunctive relief Fox might be entitled to on the basis of the decision in this case could be given by the court after the jury renders its verdict. Otherwise, Beacon would be compelled to split its antitrust case, trying part to a judge and part to a jury. This would cause the postponement and subordination of Fox's legal claim for declaratory relief.

iv. Why doesnt Beacon have a right to a jury? Bcuz Foxs claim is primarily equitable and the old system used a center of gravity test. 1. Beacon claims that its right to a jury trial is compromised by sequencing its equitable/legal claims. v. What would it look like if it were a traditional coercive of action? 1. If it werent brought as a Declaratory judgment action, it would be Beacon v Fox which is a legal claim. vi. Is Declaratory judgment a legal relief or equitable? It depends; the answer is based on how you get there based on the question of whether if the action was brought as a traditional coercive action. 1. Declaratory judgment action is a novel proceeding bcuz it allows the D to get to court first but the ct doesnt want this fact to destroy someones right to a jury trial 2. When is someone entitled to equity remedies (remedy of last resort)? When legal remedies are inadequate. a. After the jury decides the facts on the legal claims 3. In cases involving both legal and equitable claims with a common factual issue, there is a constitutional right to a jury trial on the legal issues first and we ONLY DEPART FROM THIS when irreparable harm would be done to the party seeking equitable relief (example?) g. Rules for determining RIGHT TO JURY TRIAL IN MIXED CLAIM CASES i. If an issue of fact underlies a claim for legal relief, MUST go to jury (whether or not thrust of case is equitableold rule) ii. Mixed equity and legal claims has a jury right iii. Purely equitable, no jury (see ROSS exception) h. Jury only decides the facts on the legal claims, right? Does nothing for the equitable relief claims. i. In a hybrid action, the right to jury trial extends only to the legal claims rights? The equitable claims are left to the judge. j. Dairy Queen v Wood (Statutory trademark action) i. Facts: Wood (defendant) signed a licensing contract with Dairy Queen, Inc. (DQ) (plaintiff), whereby he agreed to pay $150,000 for the exclusive right to use the DQ trademark in certain portions of Pennsylvania. DQ sent a notice of termination letter to Wood cancelling his right to use the trademark when he defaulted on his payments. Wood however continued to use the trademark after the notice. DQ then brought suit for breach of contract, seeking an injunction and

an accounting to determine the exact amount of money owing by [Wood] and a judgment for that amount. ii. Issues: Is asking for an accounting an equitable or legal claim since it is essentially a misnomer for a request for damages? iii. Reasoning: Claims were essentially equitable, but SCOTUS said that since the remedy was monetary, there should be a jury. The choice of terms ("accounting" rather than "damages" or "debt") used in the pleading should not preclude a right to jury. k. Where we have mixed request for relief (both legal & equitable), even if the legal remedy seems minor or incidental, theres a right to a jury trial. i. We disregard the characterization of the remedies by the party seeking to deprive someone of a right to a jury trial (DQ requested an accounting) ii. Legal remedy may be inadequate if case is complex (jury too confused) 1. Sometimes a factual issue is so complex that trying the legal remedy first would cause irreparable harm l. Ross v Bernhard (exception to general rule re: Jury Trial)
i. Facts: Plaintiffs complaint contends that Lehman Brothers controlled the corporation through an illegally large representation on the corporations board of directors. The corporations board of directors was accused of converting corporate assets and of gross abuse of trust, bad faith and negligence. Both individual defendants, including Bernhard, and Lehman Brothers (Defendants) were accused of breaches of fiduciary duty. Plaintiffs requested that Defendants account for losses to the corporation and demanded a jury trial on the corporations claims. On the Motion to Strike Plaintiffs jury trial demand, the district court held that a shareholders right to a jury trial was to be judged as if the corporation were itself the Plaintiff. The district court found that only the shareholders initial claim had to be tried by a jury. The court of appeals reversed holding and held that no jury was available to try any part of it. ii. Issues: Whether the Seventh Amendment guarantees the right to a jury trial in stockholders derivative actions? iii. Reasoning: Right to a jury trial extends to those issues in derivative actions when the corporation would be entitled to a jury trial. The Seventh Amendment preserves the right to a jury trial in all suits, which had a right to a jury trial at common law. The Seventh Amendment entitled the parties to a jury trial in actions for damages to a person or property, for libel and slander, for recovery of land, and for conversion of personal property. Common law, however, refused to permit stockholders to call corporate managers to account in actions at law. The Seventh Amendment question of the right to a jury trial depends on the nature of the issue to be tried rather than the character of the overall action. A derivative action has two aspects: the stockholders right to sue on behalf of the corporation, and the claim of the corporation against directors or third parties on which the company could demand a jury trial. The corporation is a necessary party to the action and is the real party in interest. Derivative suits have been described as true class actions. Therefore, the Seventh Amendment preserves the parties right to a jury trial in a stockholder derivative suit when

the corporations and those against who a corporation pressed its legal claims have the same Seventh Amendment right. iv. P has to establish merits (legal issue) and right to sue (equitable issue). Right to sue should be determined first by judge. v. After Ross, does the historical test matter anymore? The reason we would have imagined these 2 things separate btwn judge & jury was bcuz we had 2 separate courts. However, now we have merged the lines btwn equity and law and there is only 1 venue where you can bring your claim. Thereby expanding the jury right. 1. Stewart suggests that court is expanding the jury trial beyond seventh amendment m. If every claim in the case is a legal claim, then jury trial right. n. If mixed legal and equity claims, then also a jury trial right, but there is language of Beacon of extraordinary circumstances where jury would be unfeasible (jury confusion) Jury goes first, then judge. i. Test for irreparable injury based on Beacon: NOT YET ii. Dairy Queen says we will preserve as much of jury right as possible even if jury confusion. o. GENERAL RULE, all equitable claims are NOT ENTITLED TO A JURY TRIAL p. EXCEPTION--In Ross, we have all equity claims and we still have jury trial claim bcuz showing an entitlement to a legal claim is essential element of the claim. i. In Ross, the judge goes first bcuz whatever judge decides on the equitable claim does not decide the merits of the legal claim. q. How do we preserve the right to a jury trial in those cases where the right to a jury trial attaches? i. Compensatory/Punitive damages = legal remedy; factual issue ii. Restitution/Injunction/specific performance = equitable relief 1. Equitable relief should be applied only when legal relief (damages) is inadequate r. Curtis v Loether This is an example of distinguishing this statute from other statutes. Curtis says that the awarding of damages isnt always legal. Must apply the cases to review how the facts compare. Curtis talks about circumstances where an exception to money damages may be upheld. i. Is there a jury trial right based on the Ps claims? ii. Facts: Petitioner brought a suit against Respondents for their alleged discrimination in refusing to rent an apartment to her because of her race. Petitioners complaint sought injunctive relief and punitive damages and was later amended to include compensatory damages. The injunctive relief was granted and then dissolved when Petitioner had obtained other housing. The trial commenced on the issues of actual and punitive damages. Respondents made a timely request for a jury trial and the District Court denied the request. The Petitioner was awarded $250 in punitive damages. On appeal, the Court of Appeals reversed on the jury trial issue. iii. Issues: Whether the Act or the Seventh Amendment of the Constitution requires a jury trial upon demand by one of the parties in an action for damages and injunctive relief under Section 812 of the Act. iv. Reasons: Section 812 of the Act authorizes private plaintiffs to bring civil actions to redress violations of Title VIII, the fair housing provision of the Act. When Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, the jury trial must be available if the action involves rights and remedies of the sort

typically enforced in an action at law. The right sought here, actual and punitive damages, is the traditional form of relief that courts of law offer. s. Statutory required that the COURT MAY GRANT, the court awards damages based on the facts determined by the jury. t. What could Congress do to limit the jury right? Refer to relief as equitable in nature, permit the exercise of discretion of giving money damages, tying relief to Ds gain 35. Judgment as a matter of Law RULE 50a (Take away from jury before deliberation and after evidence has been presented) a. What would the P have needed in Denman? b. Denman v Spain i. Facts: Plaintiff, a minor, was driving with her grandmother when their car was involved in a fatal head on accident with the Defendants vehicle. Plaintiff survived and sued the deceased Defendants estate claiming his negligent operation of his vehicle caused her personal injuries. At trial, Plaintiff offered photographs of the damaged vehicles and the testimony of two witnesses. Both witnesses claimed they saw Defendant driving at a high rate of speed, but that to their knowledge he was on the correct side of the road. There were no eyewitnesses to the actual accident, as the survivors could not remember the accident details. Plaintiff claimed it could be inferred that the accident would not have happened, but for the negligent manner in which Defendant drove his car, compounded with the bad weather and his excessive driving speed. The jury came back with a verdict for the Plaintiff and awarded her $5,000. Defendant moved for a judgment notwithstanding the verdict and was granted it. ii. Issue: Whether the trial correct correctly granted a judgment notwithstanding the verdict in Defendants favor based on Plaintiffs evidentiary showing. iii. Reasoning: Yes, there was no sound or reasonable basis upon which a jury or this Court can say that the Plaintiff met her burden of proof. It was the Plaintiffs burden to show by a preponderance of the evidence that the Defendant was guilty of negligence and that such negligence was the proximate cause or contributing factor to the accident and resulting damage. The conclusion that the Plaintiff reached was based on speculation because the details of the accident were unknown to everybody. Therefore, a finding of a judgment notwithstanding the verdict was correct because a jury could not have thoroughly based a verdict on speculative facts such as these. c. Lavender v Kurn i. Facts: Lavender (P) sued on behalf of Haney, who had died from head injuries suffered while working as a switch tender for the St Louis-San Francisco Railway and the Illinois Central Railroad, which was represented by Kurn (D). At trial, Lavender tried to prove that the cause of death was a protruding mail hook on a train that struck Haney on the head as the train passed. Haney would have had to have been standing in a particular place and the hook would have hit Haney 63.5 inches above the ground. The defendant claimed that Haney had been murdered. Haney had been working at night and had opened the switch as the train approached but had not closed it after it passed. Haney was found dead face down near the track. He had been killed by a fast moving round small object. His personal belongings had not been taken. The jury returned a verdict in favor of Lavender. The Missouri Supreme Court reversed on the grounds that it was

mere speculation that Haney had been hit by the mail hook and the plaintiff appealed to the Supreme Court. ii. Issues: What showing is required in order to overturn a jury verdict? iii. Reasoning: A jury verdict may only be overturned if there is a complete absence of probative facts to support the verdict. The court held that if there is any evidentiary basis for a verdict, an appellate court may not overturn a jury verdict. A jury can disregard or disbelieve facts that may be inconsistent with its conclusion and it may speculate and make conjecture to reach a verdict if the facts are disputed. This evidence demonstrates that there was evidence from which it might be inferred that the end of the mail hook struck Haney in the back of the head. The court held that the jury had made its inference and the respondents were not free to relitigate the factual dispute on appeal. Verdict for Lavender reinstated. Kircher v Atchison, Topeka & Santa Fe Ry. Co. i. It is no answer to say that juries decision is based on speculation. Rogers v Missouri Railroad (1957) i. Facts: Petitioner was employed by Respondent as a laborer. On the day of the accident, Petitioner was assigned for the first time to burn off the weeds and vegetation that were on slopes adjacent to the railroad tracks. His foreman testified that customarily the vegetation was burned off with a flame thrower, but other witnesses testified that the Respondent stopped using that method a year prior because the fires would burn past Respondents property. The Petitioner was instead given a crude hand torch with instructions that when a train was coming near, to step off the tracks and observe the journals of the passing train for hotboxes. Petitioner was warned of safety precautions as to where to stand when a train was approaching. He heard a train coming and stepped off the track and stopped firing his torch. He stood a few feet from where he was, to observe the passing train for hotboxes. The train fanned the flames of the burning vegetation and enveloped the Petitioner. As he tried to make his way to the safe area, he slipped and suffered serious injuries. The Circuit Court of St. Louis jury found for Petitioner and the Supreme Court of Missouri overruled, stating that Petitioners evidence did not support the finding of Respondents liability. ii. Issues: Whether the evidence at trial was sufficient for the jury to reach a verdict. iii. Reasoning: Yes. The evidence was sufficient to support the jury finding for the Petitioner. Judgment reversed. The Supreme Court of Missouri based its reversal on the motion that as a matter of law, the Petitioners conduct was the sole cause of his injuries. But the United States Supreme Court (Supreme Court) opined that the trial jury was instructed to return a verdict for the Respondent if it found the accident was solely due to Petitioners own negligence. It was the jurys role to determine from the facts whether the accident was due in part to Respondents negligence. And thus, in finding that Respondent was at least somewhat negligent, the jury followed the directions of the trial court judge and held for the Petitioner. The test that the jury had to apply was whether the evidence justified, with reason, the conclusion that Respondents negligence played any part in producing the injury for which damages were sought. It did not matter that the jury could reasonably find that the accident happened because of other causes such as Petitioners own contributory negligence. Judges are bound to find that the jury case is final whether or not the evidence allows the jury a choice of other possible outcomes.
d. e.

f. What is the actual dispute in Rogers? The P is alleging that the D (his employer) is also negligent under the Fed Employer Liability Act. The standard set by FELA says that at long as employer is somewhat responsible, he can be held liable. D is saying that if P was contributorily negligent, he shouldnt recover at all. g. Why even say the D is negligent? D had knowledge and common experience and P was never told to NOT watch the hotboxes and focus solely on the fire, thus there is evidence of some of the injuries to P were caused by Ds negligence. h. SCOTUS is saying that FELA is a comparative negligence standard, NOT contributory negligence standard. i. Reeves v Sanderson Plumbing (takes case from jury after deliberation) i. FACTS: Roger Reeves, 57, and Joe Oswalt, in his mid-thirties, were supervisors in different Sanderson Plumbing Products, Inc. departments. Reeves' duties included making sure workers under his supervision were on time and at work and logging such data. Reeves' department was managed by Russell Caldwell, 45, who was responsible for reviewing Reeves' work. Caldwell informed the company's director of manufacturing, Powe Chesnut, that production in Reeves' department was down because employees were often absent, coming in late, and leaving early. Chesnut ordered an audit, which revealed numerous timekeeping errors and misrepresentations by Caldwell, Reeves, and Oswalt. Chesnut recommended that Reeves and Caldwell be fired and, subsequently, their employment was terminated. Reeves filed suit, alleging that he had been terminated because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA). At trial, Sanderson contended that Reeves was fired because of his failure to maintain accurate attendance records. Reeves attempted to demonstrate that this explanation was a pretext for age discrimination and introduced evidence that he had accurately recorded the attendance of employees under his supervision and that Chesnut had demonstrated age-related animosity when dealing with him. Ultimately, the case went to a jury, which returned a verdict for Reeves. In reversing, the Court of Appeals concluded that Reeves had not presented sufficient evidence to sustain a finding of age-based discrimination. ii. ISSUES: Is a plaintiff's prima facie case of age discrimination, combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, adequate to sustain a finding of liability for intentional discrimination under the Age Discrimination in Employment Act of 1967? iii. REASONING: Yes. In a unanimous opinion deliver by Justice Sandra Day O'Connor, the Court held that "[a] plaintiff's prima facie case of discrimination, combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination under the ADEA." The ruling means that an employer is liable to a former employee under the Age Discrimination in Employment Act of 1967 if a reasonable jury can find that the employer's explanation for the employee's dismissal was pretext for discrimination. iv. What is the evidence the court looks at before determining JMOL? 1. Judge looks at a. Measures all evidence b. No credibility issues are determined c. Disregards all evidence that is unfavorable to 2. Jury is not compelled to find for the P

Were only gonna credit evidence toward the moving party is evidence that comes from uninterested, unimpeached parties v. Slocum & Redman 1. These cases explain the relationship btwn 50(a) and 50(b). a. Supreme court said you have to have a new trial; cannot direct verdict for D 2. Redman court did not deny Ds motion, it reserved the motion. 36. New Trial (RULE 59) INCOHERENT VERDICTS: confusion, compromise, coercion a. How do we resolve Coppo/Ginsburg? According to the ct, if the ct states substantial justice has not been done, then it is ok to grant a motion for a new trial. i. Maybe jury was enflamed; biased; due to poor instruction did not appreciate the weight of certain evidence ii. Disagreeing with the jury verdict may be enough for judge to grant a motion for a new trial iii. No Reasonable Jury ---------------------------Jury is Wrong (these are 2 different things) b. There is a great deal of discretion for the trial judge to grant a motion for a new trial. c. Coppo/Ginsburg give a very broad standard i. Substantial justice has not been done when theres a conflict in the verdict d. Magnani v Trogi (trial ct did not abuse its discretion) General verdict, not special verdict We need to know how much is awarded on each claim in order to know how to apportion the damages. i. Facts: Plaintiff stated two causes of action in her complaint. The first, as Administratix for the wrongful death of her husband under the Wrongful Death Act. The second, on her own behalf, for reimbursement of medical and funeral expenses incurred by her as a result of her husbands wrongful death under the Family Expense Statute. Under the Wrongful Death Statute, any recovery had to be distributed by the court and given to the widow and next of kin in proportion as determined by the court. No apportionment was necessary under the Family Expense Statute. In the instant case, neither litigant objected to the single form verdict that was delivered by the jury, instead of individual verdicts on each count. The jury returned with a verdict for the Plaintiff and awarded her $19,000. The trial judge noted the confusion on whether the verdict applied to one count or both. In his memorandum of law, the trial judge ordered a new trial as to the liability and damages issues in the case. ii. Issues: Whether the trial judge abused his discretion by granting a new trial. iii. Reasoning: No. Because the Defendant had filed his post-trial motion after the jury had already delivered its verdict, it was impossible for the judge to reassemble the jury and instruct them to correct the error in the form of verdict. Therefore, the trial judge in this instance did not abuse his discretion in ordering a new trial. e. Robb v John Hickey (kind of special verdict) How do we mould the jurys verdict? Granting the verdict for the defendant. Jury was probably reaching a compromise to find a verdict. i. Facts: The case required the jury to decide whether the Defendant had been negligent and whether the Plaintiff had been contributorily negligent. The jury was instructed that if it found the Plaintiffs decedent to be contributorily negligent, it did not have to address the comparative degrees of negligence. The jury came back with a verdict that found the Defendant 3.

more negligent than the Plaintiff and awarded the Plaintiff $2,000. Both parties were unhappy with the verdict. Plaintiff argued that the verdict was unambiguous and contrary to the charge of the court and the Defendant upon notice moved to have the verdict molded because the jurys intent was clear in finding for the Defendants. ii. Issues: Whether the court may inject its own decision when a jury returns an ambiguous and inconsistent verdict. iii. Reasoning: No. Reading the verdict as a whole, it is self-contradictory, inconsistent and ambiguous. One is left to infer and surmise as to the real purpose of the jury. The verdict was defective in substance and form. f. Duk v MGM Grand i. Facts: Jury originally finds that P is more negligent than the D and goes on to award damages; then changed the apportionment. P was partying in casino and became belligerent. ii. Issues: Does the judge have the right to grant a new trial based on inconsistent verdicts? iii. Reasoning: Trial judge has no basis for granting a new trial based on what happened in deliberations. Where a jury is still available, a district court's decision to re-submit an inconsistent verdict for clarification is within its discretion, but the district court erred in ordering a new trial on receipt of the second verdict in a personal injury action. iv. What do we do when we decide to grant a new trial? If the trial court can reconcile the verdicts on a reasonable theory consistent with the evidence. If its possible to explain the inconsistency in a way that comports with the law. g. Floyd/Larson case in notes resolves by saying in Larson the jury was still available and in Floyd the jury was not still available. In Duk, the jury was still available. 37. NEW TRIAL (LEGAL ERROR BY JUDGE) a. Rule 61 We dont grant new trials for errors that are harmless unless they affect the outcome of the trial. If it does affect the outcome, it is a basis for granting a new trial 38. NEW TRIAL (VERDICT AGAINST WEIGHT OF EVIDENCE ON LIABILITY) a. Aetna Casualty & Surety Co. v. Yeatts i. Facts: The Plaintiff denied liability to the Defendant, Yeatts (Defendant), on coverage of a policy of indemnity insurance. The Plaintiff stated that the Defendant engaged in criminal activity at the time he incurred the liability for the recovery that was had against him. Such liability was expressly excluded from the policy coverage. The question as to the Defendants criminal activity was submitted to the jury. Though there was ample evidence to find for the Plaintiff, the Defendant was examined as a witness and the jury found for the Defendant. The Plaintiff moved for a judgment notwithstanding the verdict and motioned for a new trial, stating that the verdict was contrary to the evidence in the case. The Plaintiff was denied both and it appealed. ii. Issues: Whether the trial judge abused his discretion in not granting a judgment notwithstanding the verdict and ordering a new trial. iii. Reasoning: While an examination of the record led the court to the conclusion that the trial judge might very properly have granted the motion for a new trial, the court could not say that his denial of the motion amounted to an abuse of discretion on his part or that there are present any of the special circumstances, which would subject his action to review by this court. The judgment appealed from was accordingly affirmed. The first part being that the judge may not direct a verdict against a plaintiff where

substantial evidence has been shown in plaintiffs case no matter whether the judge believes the evidence or thinks the weight of the evidence is on the other side, for this would preclude the constitutional guaranty of trial by jury. To the contrary, the judge may set aside a verdict supported by substantial evidence when in his opinion the verdict is contrary to the clear weight of the evidence or is based upon false evidence. iv. Before Yeatts sues Aetna, Aetna files a declaratory judgment saying that Yeatts was performing a criminal activity. Why isnt Aetna entitled to a JMOL? There is a conflict in terms of the evidence that the jury may find for either party; it found for Yeatts. v. On what grounds could the court have granted a new trial? 1. Verdict against the clear weight of the evidence 2. Verdict based on evidence that is false 3. Verdict will result in a miscarriage of justice (even if there is substantial evidence which would prevent the direction of a verdict) vi. Judge (acts as 13th juror) weighs the evidence based on his own discretion of the credibility of the evidence. From an appellate courts perspective, it may look like its significant weight of evidence for Aetna, but they give a huge amount of discretion to the trial judge in granting or refusing to grant a motion for a new trial. Shows strong deference to trial court. vii. If a trial court denies or approves a JMOL, the appellate court reviews de novo because its a straight legal question. Trial judge is not allowed to assess credibility at the JMOL level. b. Cant appeal a motion for a new trial because theres no final judgment, but can appeal the grant of motion for a new trial if the final verdict comes out against you. c. In Re Greens Estate: the appellate court will likely find that a trial court has not abused its discretion where there is a conflict in the evidence or where there is any evidence which would support a judgment in favor of the moving party. 39. NEW TRIAL (BASED ON DAMAGES THAT SHOCK THE CONSCIENCE) a. Award of Damages-the standard in Fed ct is if the amount of damages shock the conscience. i. Remititter- heres your choice, P. judge will grant new trial if P does not accept the settlement offered by the judge which is less than what the jury ordered ii. No Ad dittiter b. This power to grant a motion for a new trial exists for damages also and can be for damages only. 40. POWER TO SET ASIDE A VERDICT ON GROUNDS DISCOVERED AFTER IT WAS RENDERED Rule 60-we have had a trial and we have a final judgment. What happens after weve had a final judgment. The question is how final is it? There cant just be a mistake. How do we make 60(b)(1) meaningful without denying finality in every case? If its gross negligence, then youre stuck with it. If there is limited fault on your part, the judge may grant the motion. If judge gives you the wrong date, and you dont show up. There may be relief granted under 60(b)(1). 60(b)(1) MOTIONS ON NEWLY DISCOVERED FACTS

What was the problem in Peacock Records? We have a judgment based on perjured testimony and on that situation, we will grant relief. Facts were in existent at the time of trial, but we obscured. Brown D may have realized that P could not work. There was no evidence that just bcuz D changed his position that during the trial, D did not believe that P could work. Facts could have changed in Ds mind after the trial. Listen to Rule 68Offer of Judgment; usually offered by D. The D serves on P and if P wants to accept, P has to file with the court. a. Mistake or excusable neglect; (usually occurs w. default judgments) i. Briones v Riviera Hotel 1. Facts: Jesus Briones filed suit against his former employer, Riviera Operating Corporation. Briones alleged that he was subjected to a hostile work environment and unlawfully discharged due to his Hispanic heritage. Briones appeals pro se the district court's denial of his Fed.R.Civ.P. 60(b)(1) motion for relief from judgment based on excusable neglect. 2. Issues: 3. Reasoning: Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect, it is clear that excusable neglect under Rule 6(b) is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant. Because Congress has provided no other guideposts for determining what sorts of neglect will be considered excusable, we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the partys omission. These include, as the Court of Appeals found: a. the danger of prejudice to the debtor b. the length of the delay and its potential impact on judicial proceedings c. the reason for the delay, including whether it was within the reasonable control of the movant d. whether the movant acted in good faith. b. Newly Discovered Evidence; Fraud What was the basis for Ds Rule 59 motion? Weight of evidence or Legal Error? i. Patrick v Sedwick 1. Facts: Patrick (P) brought a medical malpractice action alleging personal injuries. This case was tried as a bench trial and the judge rendered findings on liability that was subject to a lengthy appeal. The appellate court directed the trial court to enter judgment for P on all areas of liability and to determine the amt of damages. The trial court fixed the amount of damages based on evidence presented at the bench trial and the D moved for a new trial based on the fact that a new technology would be able to treat P. New trial motion was denied and the new evidence rejected by trial court and appellate court. 2. Issues: Was the trial court correct in denying the Ds motion for a new trial? 3. Reasoning: Yes, the trial court was correct. Motion for new trial on based on newly discovered evidence must meet the following criteria:

Must be such as would probably change the result on a new trial b. Must have been discovered since the trial c. Must have been of such a nature that it could not have been discovered before trial d. Must be material e. Must not be cumulative (cannot simply add to existing evidence) or impeaching (evidence that challenges credibility of a witness) f. Must relate to facts that were in existence at the time of the trial ii. Hazel-Atlas (court may disregard time frame when presented with Fraud) 41. RES JUDICATA & COLLATERAL ESTOPPEL (Claim & Issue Preclusion) a. Res Judicata/Claim Preclusion = tells us what we HAVE to do if we want to include this claim i. A bar to litigating claims that were the subject of a prior action or should have been litigated in a suit ii. What happened in Case1? 1. Judgment must be: a. Valid: personal jurisdiction and subject matter jurisdiction b. Final: case is over in the trial court c. On the merits: on the merits of the claim; dismissals for PJ or SMJ dont count, voluntary dismissals w/o prejudice dont count either bcuz not on merits. iii. Is C2 precluded from what happened in C1? 1. C2 must involve the same parties as C1 or they have to be privity with one another (must be same P and same D) 2. The claim in C2 must include matters that were properly concluded in C1. b. Res Judicata does not care that if judgment is C1 is wrong (even if evidence is clear), you will not be able to re-litigate the matter. We want to prevent inconsistent judgments and we want to secure finality. Res Judicata is recognition that finality is a protected interest. c. Collateral Estoppel/Issue Preclusion i. Bar to litigating issues that were the subject of a prior action d. Rush v. City of Maple Heights i. Facts: Rush (P) was injured in a fall from a motorcycle in the City of Maple Heights (D). Rush sued D in municipal court claiming that D was negligent in maintaining the street and this negligence was the proximate cause of her injuries. The municipal court awarded Rush $100 in damages to her personal property. D appealed and the judgment was affirmed. P then sued D in a different court for personal injuries she suffered in the same accident. P claimed that the issue of negligence was res judicata from the judgment in the first action and P moved for trial on damages alone. The court granted the motion and P was awarded $12,000. D appealed and the Court of Appeals affirmed. ii. Issues: Must a plaintiff raise all causes of action arising from a single wrong in one lawsuit? Yes. Whether or not injuries to both person and property resulting from the same wrongful act are to be treated as injuries to separate rights or as separate items of damage, a plaintiff may maintain only one action to enforce his rights existing at the time such action is commenced. Judgment reversed and final judgment for the Defendant. a.

iii. Reasoning: The court applied the transaction test where the scope of a claim is determined by looking at the action, issue of evidence, would the parties expect such claims to be litigated. e. C1 Rush v. City for Property damage; P wins, City negligent f. C2 Rush v. City for Personal Injury; P is trying to say that since she litigated the issue and negligence was established, the only thing that needs to be decided is damages. Her argument that this shouldnt be precluded because the nature of the claims were different and the evidence was different. The City argues that its one claim with 2 different types of injuries and the issue should be precluded. HYPO: Example where 2 Causes of Action that Meet CNOF test, but no claim preclusion i. C1 - Breach of Contract Claim (in state court) ii. C2 - antitrust claim re Contract (exclusively Fed jurisdiction); In this situation, we do not preclude the claim. This is only the case when the ct in Case1 cant assert jurisdiction over the claim. So youd have two cases and we lose efficiency in this example. 1. However, if breach of contract claim was tried in Fed Ct, then it would be barred by preclusion HYPO: 3 car accident btwn A, B & C iii. C1 - A sues B and loses. iv. C2 A sues C out of the same accident (no claim preclusion bcuz not the same parties) 1. Ann is not seeking a do-over and the D is not being subject to 2 different suits g. The basic rule is one is barred from bringing in C2, claims that u brought or should have brought in C1, as long as they are the same party and the court could assert jurisdiction over them. h. Just because a claim meets the Common Nucleus of Operative Test does NOT MEAN it will meet the TRANSACTIONAL test for claim preclusion. i. Mathews v. New York Racing Association, Inc. i. Facts: The Plaintiff brought suit against the Defendants. The Plaintiff alleged that on April 4, 1958 he was assaulted, kidnapped, falsely arrested and falsely imprisoned by employees of Thoroughbred. The Plaintiff also alleged that the Defendants maliciously caused him to be prosecuted and imprisoned on April 10, 1958. He asked for money damages and an injunction restraining the Defendants form interfering with his presence at the racetracks, from publication of libelous statements and from acting as peace officers. The Defendants brought a defense of res judicata asserting that a prior judgment dated June 30, 1960 dismissed his similar complaints. In that case, the Plaintiff alleged on April 4, 1958 he was assaulted and libelous statements were made about the Plaintiff. In that action the Plaintiff also asked for monetary damages and an injunction from further interference with his attendance at the tracks. ii. Issues: Whether the claim alleged in this complaint is the same as that in the suit concluded earlier? iii. Reasoning: Yes. The Plaintiff could not be allowed to split his claim into multiple suits and try them at his convenience. Res judicata is claim preclusion. The term claim refers to a group of facts limited to a single occurrence or transaction without reference to the legal rights. It is the facts surrounding the occurrence, not the legal theory, which make up the claim. The same facts were the basis of liability in each suit. The Plaintiff had his day in court. The previous judge had found that upon the

facts and law the Plaintiff had shown no right to relief. Therefore, the Plaintiff was estopped from maintaining this action. 1. C1 = State tort claim against employees 2. C2 = race track 3. The issue that has been litigated is whether the agents have committed this tort. P has changed his legal theory and has changed the defendant. Because of the principle of respondeat superior, then it is essentially the same parties a. What we mean by same parties can be determined by substantive law. Functionally, they are the same parties because of what substantive law tells us. Two parties that look different nominally may still be the same by substantive law. j. Federated Department Stores, Inc. v Moitie i. Facts: The district court dismissed all seven suits in their entirety because they had not suffered harm to their business or property within the meaning of the federal antitrust statute. The dismissal is referred to as Moitie I and Brown I. Five of the seven appealed. Moitie and Brown did not appeal, but refiled their case in state court, Moitie II and Brown II. Their actions were removed to federal court and then dismissed on res judicata grounds. The original action involving the other five Plaintiffs was reversed and remanded to the district court to be reconsidered in light of the recent decision in Reiter v. Sonotone. Moitie II and Brown II was eventually appealed to the United States Court of Appeals for the Ninth Circuit. The court of appeals held that the application of res judicata would normally preclude the second action, however, an exception should be made when the original dismissal was based on a case that had been overruled. Essentially, the court reversed, refusing to apply res judicata based on grounds of simple justice and public policy. ii. Issues: Whether the Court of Appeals for the Ninth Circuit validly created an exception to the doctrine of res judicata when the court found that res judicata does not bar relitigation of an unappealed adverse judgment? iii. Reasoning: There are some instances when considerations of justice and fairness dictate that prior judgments should be given preclusive effect. However, the Supreme Court of the United States did not find that there was any injustice in this case. The court of appeals reliance on public policy is misplaced, as it has long been the public policy that there be an end to litigation, and that those who were involved in the litigation be bound by the judgment. Accordingly, the judgment of the court of appeals is reversed, and the case is remanded 1. C1: Moitie + Brown + 5 - Antitrust 2. C2: Moitie + Brown (state ct, then removed to fed ct) a. Same parties and same claim, and they chose to refile instead of appeal. For the D, this isnt an efficiency issue. 3. Even when we know the first outcome is wrong, we will still bar the lawsuit. Harsh consequence of preclusion for P. k. Jones v Morris Plan Bank of Portsmouth i. Facts: The Plaintiff brought suit against the Defendant in an action for damages incurred when the Defendant converted the Plaintiffs car. The Plaintiff had purchased a car from a used car dealer and traded in his own vehicle to make the unpaid balance due in the sum of $428.40. It was to be paid in 12 monthly installments of $35.70. The note contained a provision that stated if any installment was not paid, that the whole note became due

at once. The seller retained title to the car until the Plaintiff paid the balance. The Plaintiff did not pay his May and June installments and the Defendant went to court to obtain payments for those months. The Plaintiff never showed up in that case and judgment was entered for the Defendant. When the Plaintiff did not pay his July statement, the Defendant once again went to court to obtain judgment. The Defendant then took possession of the car without the Plaintiffs consent and sold it to apply the proceeds to the note. The Plaintiff then filed this action claiming that the Defendant was precluded from bringing the July nonpayment to court because when the Defendant sought relief for the May and June payments, the whole note became due. The Defendant was estopped from bring the July claim and waived its right to the unpaid balance and therefore, was not entitled to convert the car. ii. Issues: Whether the Defendant could bring an action for the 2 payments due and then another action for payment on another installment. iii. Reasoning: The issue turns on whether the contract is single or divisible. Our answer is that the note and conditional sales contract constituted one single contract. The sole purpose of the conditional sales contract was to retain the title in the seller until the note was paid. When the condition was performed, the contract ended. At the time the Defendant lost its right to institute any action for the remaining installments, the title to the automobile passed to the Plaintiff. He was the owner of the car when the Defendant converted it. 1. Substantive law provided the original lender with the right to institute an action for everything at once, and since they didnt do it, then they waived the right. 2. Harsh consequences of preclusion from Ds perspective. l. Validity means that there was jurisdiction HYPO i. C1 = claim against a party but no jurisdiction over D. so no valid judgment and no claim preclusion; original P can re-file in a good jurisdiction for D. ii. C2 = D claims no jurisdiction but loses, then the judgment is valid. HYPO #2 iii. C1 = P loses; files appeal iv. C2 = P re-files and claim is precluded 42. Defense Preclusion (common law doctrine and what we would have if we didnt have compulsory counterclaims.) SEE RULE 13 a. Same facts in C1 used in C2; same parties (but in opposite order); judgment must be valid, final and on the merits. HYPO b. C1 = A vs. B c. C2 = B vs. A d. If B has a claim that arose out of the same transaction or occurrence in C1, then it is given preclusive effect. e. C1 = D raises a defense of PJ and wins. f. C2 = P re-files in a different jurisdiction and D says res judicata. This is not ok bcuz judgment was not on the merits. g. Mitchell v. Federal Intermediate Credit Bank (state court; no rule 13) i. Facts: The Plaintiff took out a loan from the Defendant bank in which proceeds from his potato crop were secured as security for two notes due in the amount of $9,000. The crops netted $18,000 and the Plaintiff never received any of the money. The Defendant had brought suit against the Plaintiff in a previous suit, in which the Plaintiff alleged the same facts as in

this case, though he never sought relief. Judgment in that case was for the Plaintiff. The Defendant now, claims that the Plaintiff is estopped from bringing forth this claim. ii. Issues: Whether the circuit judge erred in sustaining the plea barring the Plaintiffs action. iii. Reasoning: The court found that the facts pleaded by the Plaintiff in the previous case as his defense to the Defendant banks recovery on its notes are the same as those set out by him in his complaint as the basis of his action in the case at bar. When the Defendant bank sued the Plaintiff on the two notes, he had the option to interpose his claim as a defense to that suit or to demand judgment against the bank through a counterclaim. In that case, had he asked for relief, he would have gotten it. Because he did not do this, and instead chose to attempt to split his cause of action, he is precluded from doing so since defense was actually litigated. 1. C1 = Bank v Mitchell for money owed on a loan; D won on the defense that bank had been paid for the potatoes 2. C2 = Mitchell v Bank for 9K extra for potatoes; the basis for C2 is the same for C1. a. re: Kirven, court suggests that since issue was not litigated and determined, then it is ok to try and no preclusion applies b. In claim preclusion, we address all claims that were brought or should have been brought. Defense preclusion is a narrower doctrine where only defenses that were actually brought and litigated are precluded. h. Linderman v Hillenbrand Co. i. C1 = L v H regarding price for machine; H raises a defense of fraudulent representations; H wins ii. C2 = H v L regarding damages from costs related to fraud; H wins 1. The facts may or may not be the essentially the same, but the damages issue was not yet litigated. However, this would be precluded in Fed Ct. i. Facts that are raised in a defense in C1 and litigated in C1 are the same and only facts that form the basis of the claim in C2. In Linderman, fraud as a defense was raised. In C2, fraud and damages (addl facts that form the basis of the claim) so no preclusion. HYPO: JUDGMENT IN C2 WOULD UNDERMINE THE JUDGMENT IN C1 j. C1-Board v Lee; Board wins; false testimony (ct says Bd can fire Lee) k. C2-Lee v Board; discrimination; (ct says Bd must give Lee his job back) i. Arguably claim is precluded in the case where integrity of judgment in C1 would be undermined. 43. COLLATERAL ESTOPPEL/ISSUE PRECLUSION a. Same issue b. Valid, final (issue decision has to be final) c. actually litigated and determined d. essential to cts judgment in C1. (if the issue came out differently, would it change the outcome? If not, then not essential) e. does not have to be exact same parties (can be invoked by parties who were not in the original litigation) i. Why do we have issue preclusion? To avoid inconsistent judgment. ii. What constitutes an issue? facts and questions litigated in the case f. ACTUALLY LITIGATED: look at judgment, record, jury instructions, trial transcript,

g. i. C1 P v D for allegation for fraud; D wins (just putting in pleadings does not constitute being litigated); summary judgment is a legal determination so it would count as actually litigated Cromwell v County of Sac i. Facts: The Plaintiff brought action on four bonds and four coupons for interest attached. The Defendant had issued bonds in 1860 for a courthouse to be built, which were redeemable in 1868, 1869, 1870, and 1871. The courthouse was never built and the Plaintiff sued to recover the amounts of the bonds plus interest. The Plaintiff brought suit and the Defendant claimed that the Plaintiff was precluded from raising the issue because of a prior suit brought by Samuel Smith (Smith), who sought recovery on the same bonds. In that suit, evidence was presented showing that the Plaintiff owned the bonds and that the case was being brought for the Plaintiffs benefit. The trial court held that the bonds were void against any party who had not acquired them before maturity and given value for them and found the Plaintiff had not proven that he gave value for them. The Plaintiff was not allowed to show that he gave value for the coupons and bonds before maturity, which the trial court held, proved the invalidity of the bonds. ii. Issues: Whether the Plaintiff was estopped from bringing his claim on the bonds and coupons. iii. Reasoning: No. The Plaintiff should have been allowed to show that he was a bona fide purchaser for value of the bonds before the date of maturity. The exclusion of the evidence offered by the Plaintiff was erroneous. Judgment reversed and remanded for a new trial. NECESSARILY DECIDED i. Russell v Place 1. Facts: The Plaintiff brought a patent infringement suit against the Defendant alleging that the Defendant had gained and profited from use, manufacture and sale of the Plaintiffs patent in the preparation of leather. The Plaintiff sued for lost profits and an injunction to stop the Defendant. The Defendant answered with two contentions: (i) that the public had been using the procedure two years prior to Plaintiffs patent and (ii) that the invention was novel. The Plaintiff was awarded judgment and claimed issue preclusion in the Defendants attempt to raise those issues in this case. 2. Issues: Whether the Defendant was precluded from raising the issues of novelty and prior use in the case at bar. 3. Reasoning: No. A recovery for infringement of one claim of the patent is not itself conclusive of an infringement of the other claim and there was no extrinsic evidence offered to remove the uncertainty in the record. The verdict may have been for an infringement on the first claim, the second claim, or even both claims. ii. Rios v Davis 1. Facts: Popular Dry Goods Company (Popular) brought suit against the Defendant for damages to its truck in a car accident. The Defendant answered that Popular was contributorily negligent and joined the Plaintiff as a third party defendant. The jury found the company and the Plaintiff were guilty of negligence proximately causing the accident as was the Defendant. Davis also asserts a claim against Rios directly. In that case, the jury denied Populars recovery against the Defendant and vice versa. In the case at bar,
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the Defendant claimed res judicata and collateral estoppel as to the issues raised in the prior action. The plea of res judicata was sustained and judgment entered in favor of the Defendant. 2. Issues: Whether the District Court erred in sustaining the Defendants plea of res judicata. 3. Reasoning: Yes. The right of appeal is from a judgment and not a finding. Judgment reversed and remanded. The Plaintiff contended that the Defendants plea of res judicata should have been denied because in the prior case, judgment had been awarded in favor of the Plaintiff. In the prior case, the Plaintiffs negligence was immaterial to the final holding in the case. Because the Plaintiffs negligence was material to this case, res judicata did not preclude him from going forward with it. iii. C1 = PDGC v Davis (impleads Rios and asserts a claim against him) iv. C2 = Rios v Davis v. HYPO: Multiple Issues Have Been Decided 1. C1 = Bus v Car (absence of Contributory negligence is an element of Ps case; P must show that other driver was negligent and P was not negligent at all) We get a judgment for the driver. What does this mean? Jury cld have decided that driver was non-negligent or bus was negligent 2. C2 = car v bus (personal injuries) (driver must prove that he was not negligent and bus co was) vi. NEW HYPO 1. C1 = Bus v Car (was bus co negligent, was the driver negligent); Yes and No; Judgment for driver. 2. C2 = car v bus (personal injuries case) can we use issue preclusion? No vii. NEW HYPO 1. C1: Yes bus co negligent and Yes driver negligent; judgment for driver 2. C2: Driver can use issue preclusion here, but not bus company. The only issue to be litigated is the drivers negligence, not the bus company bcuz their negligence was already decided in C1 and was essential to the claim. i. Questions to ask: i. Same issue ii. Valid, final (issue decision has to be final) iii. actually litigated and determined iv. Special or General Verdict v. What is judgment in C1? vi. Were the answers to the verdict essential to the judgment in C1? (if this issue came out differently, would it change the outcome? If not, then not essential and no issue preclusion) j. WORKAROUND i. In special verdict form, tell jurors to only answer Q1. 44. NONMUTUAL ISSUE PRECLUSION APPLICATION--Persons Benefitted and Bound by Preclusion a. Hypo i. C1: Jane v Contractor (alleging negligence; J wins) ii. C2: Jane v City (alleging negligent hiring of contractor) city was not a party in C1 so theres a due process issue bcuz City needed notice and opportunity to be heard

b. Hypo: NONMUTUAL DEFENSIVE ISSUE PRECLUSION i. C1: Jane v Contractor (Contractor wins) ii. C2: Jane v City (City wants to use preclusion, can they?) YES for reasons of judicial economy and fairness (Jane had her day in ct) c. Bernhard v Bank of America (Nonmutual Defensive Issue Preclusion) i. C1: Bernhard v Cook (Cook wins) ii. C2: Bernhard v Bank (Bank wants to use issue preclusion) iii. Facts: Donor gave money to Executor, prior to death. When settling donors estate, beneficiaries brought suit in probate court against Executor for accounting of the gift money. The probate court found that the money was a gift, and discharged executor. iv. Issues: Whether a party asserting a plea of res judicata against another must have been a party, or in privity with a party, to the earlier litigation. v. Reasoning: Normally, privity and mutuality are required for res judicata to be binding on a non-party. However, there is an exception for the party asserting the res judicata defense. That is that mutuality is not necessary where the liability of the defendant asserting the plea of res judicata is dependent on, or derived from, the liability of one who was exonerated in an earlier suit brought by the same plaintiff on the same facts. d. Parklane Hosiery v Shore (Nonmutual Offensive Issue Preclusion)does not apply to US i. Facts: Before this action was filed, the Securities Exchange Commission (SEC) filed suit against the same Defendant in the federal district court, alleging that the proxy statement that had been filed was materially false and misleading in essentially the same fashion as was alleged by Respondent in the present case. After trial, the district court found that the proxy was materially false and misleading. The United States Court of Appeals for the Second Circuit affirmed. As a result, the Respondent in this matter moved for partial summary judgment, alleging that the Petitioner should be collaterally estopped from relitigating the issues that had been resolved against it in the first action. The district court denied the motion but the court of appeals reversed, finding that the Petitioner was collaterally estopped from obtaining a jury trial on the same issues of fact. ii. Issues: Whether a party, who has had issues of fact adjudicated adversely to it in an equitable action, may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party? iii. Reasoning: In the present case, the application of offensive collateral estoppel will not reward a private plaintiff who could have joined in the previous action. Presumably, the respondent could not have joined in an action brought by the SEC on behalf of the government. Further, there is no unfairness in allowing use of offensive estoppel in this case. In the SEC action, the petitioner had every incentive and opportunity to litigate fully and vigorously as a result of the serious nature of the charges. In the present case, none of the circumstances that might justify reluctance to allow the offensive use of collateral estoppel is present. As a result, the judgment of the court of appeals is affirmed. e. NONMUTUAL OFFENSIVE ISSUE PRECLUSION i. C1: A v B: (B loses in Issue 1) ii. C2: C v B (wants to use the judgment in C1 against B). 45. The Erie Doctrine: when to apply which law to which issues a. Every Erie case begins with a conflict btwn State law and Fed law

b. Erie RR v Thompson i. Facts: Tompkins (Plaintiff) was walking along a path next to railroad tracks in Pennsylvania when an object protruding from a train struck him. Plaintiff sued Erie Railroad Company (Defendant), the owner of the property, for negligence in federal court. Defendant is based in New York. Under Pennsylvania law, Plaintiff was a trespasser and Defendant only owed a duty to avoid wanton negligence. The majority rule, however, is that a railroad owes a duty of ordinary care to a traveler on a footpath. The District Court applied the general law and found for Plaintiff. The Court of Appeals affirmed. Fed common law would allow the P to sue for negligence; we dont have to apply PA common rule of gross negligence? ii. Issues: Under Section 34 of the federal Judiciary Act of 1789, should Pennsylvania law apply to Plaintiffs case? iii. Reasoning: Yes. Swift v. Tyson is overruled. The doctrine irrationally favored state statutory law over state common law. Thus, Swift favored outof-state litigants over in-state litigants because the out-of-state litigant could ensure that a case would be heard in federal court if it did not like the common law applicable in state court. Federal courts are courts of limited jurisdiction and thus cannot supervise the decisions of the state courts unless such authority is specifically delegated to them in the constitution. Thus, there is no federal general common law. (Fed common law is procedure). State common law and statutes should be given equal force in the federal courts deciding state law. Section 34 is not unconstitutional, just the interpretation of Swift v. Tyson. iv. In Diversity cases, Fed cts are to apply state substantive law and not their own understanding of what state law should be v. Erie (1938) is REINTERPRETING Rule of Decision Act. Now, Fed Cts must apply substantive law from statutes and common law) 1. If procedural = apply Fed rules 2. If substantive = apply state law c. Under Swift, the judge does not make law, but finds the law. The common law is separate and apart from the state and the feds. The Common Law is beyond a particular sovereignty. i. Uniformity not achieved 1. Vertical disunity a. Fed ct and state court applying different substantive law ii. The law applied in diversity cases is state law. To the extent that Congress has power, it can regulate interstate commerce. The concern about Swift and the Rule of Decision Act is that it applied to all civil actions and this poses a problem from a federal perspective. iii. By the time Erie comes around, we think of law as connected to sovereignty and not a Common Law that all states are governed by. This coincides with a shift towards legal realism and explains why we have a federalism problem after Swift. d. Guaranty Trust Co. v York (state law fraud claim, in Fed ct on diversity) Tells us whats substantive or whats procedural. i. Facts: Respondent brought a diversity suit alleging that Petitioner had breached its fiduciary duties. His complaint alleged fraud and misrepresentation. Petitioner filed a Motion for Summary Judgment in the district court, due to the fact, that the New York statute of limitations had run. The district court granted this motion. The United States Court of Appeals for the Second Circuit reversed this decision when it held that the district court did not have to follow the New York statute of limitations

ii. even though jurisdiction was based on diversity. The Supreme Court of the United States granted certiorari. Issues: When no recovery can be had in a state court because the action is barred by the statute of limitations, can a federal court in equity take cognizance of the suit because there is diversity of citizenship between the parties? Reasoning: No. The Supreme Court of the United States essentially created an outcome- determinative test (who wins or who loses) to be followed in cases involving diversity jurisdiction. What is important under this test is that the outcome of the litigation in the federal court should be substantially the same as it would be if tried in the state court. Therefore, the judgment of the court of appeals is reversed. The federal district court is required to follow the applicable New York statute of limitations. As a result of the outcome-determinative test, a party should not be able to manipulate the state and federal court systems solely to bring a claim in federal court that would, otherwise, be defeated by a statute of limitations if brought in state court. This test is designed to prevent forum shopping between federal and state courts. The states interest in controlling the outcome is very important as it seeks to protect its citizens. Alternatively, the federal interest is relatively weak, and there is very little to be gained from uniformity between federal districts. Fed forum is able to apply whatever remedy it sees fit; It does not have to rely on state court law in granting remedies. In Erie, we are worried about Fed gov overstepping its bounds and applying its own substantive law. 1. If not sure or isnt outcome determinate, then must apply balancing test from Byrd a. We are balancing state interests vs Fed interests QUESTIONS 1. Substantive? = is bound up with definitions of rights and obligations of parties; does it govern behavior? (apply state law) 2. Procedural? = is a form/mode for enforcing a right (may do outcome determinative test) 3. Is Outcome determinative? (figure out what to do w/rules that are procedural or borderline) a. Yes, How do Fed/state interests balance out? i. Why do fed care abt this rule? ii. Why do states care abt this rule? b. No, apply Federal Rules After York, Fed procedural rules could succumb to state procedural rule.
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Byrd v Blue Ridge Rural Electric Cooperative, Inc. (balancing interest test) i. Facts: The Respondent offered, as an affirmative defense, that the Plaintiff had the status of a statutory employee under the South Carolina Workmens Compensation Act (Act). Therefore, he was barred from suing Respondent at law, so he had to settle for statutory compensation benefits as the sole remedy. At trial, the jury returned a verdict for Petitioner. However, the United States Court of Appeals for the Fourth Circuit reversed, and directed judgment for the Respondent. Respondent urged the Supreme Court of the United States to follow the decision rendered by the Supreme Court of South Carolina in Adams v. Davison-Paxon Co., when the court found that it was for the judge, not the jury to decide whether a business owner was a statutory employer.

ii. Issues: Whether the outcome-determinative test as established by the court in Guaranty Trust Co. should apply to the decision of whether to try an issue of Ps status an a statutory employee before a judge or a jury? 1. Outcome-Determinative: Would this determine where the litigant would file suit? iii. Reasoning: The likelihood of a different result is not so strong as to require the federal court practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome. As a result, the Supreme Court of the United States reversed the decision of the court of appeals and remanded for further proceedings consistent with its opinion. This Court in Erie R. Co. v. Tompkins, held that federal courts in diversity suits need to respect the definition of state-created rights and obligations of state courts. Therefore, the Court in this case examined the decision in Adams v. Davison-Paxon Co., to determine whether it is bound up with these rights and obligations in such a way that its application in the federal court is required. The rule in South Carolina reflects a policy of allowing the jury to decide all factual issues, except the affirmative defense of immunity. Therefore, the Court concluded that this requirement was merely procedural and was not intended to be bound up with the definition of the rights and obligations of the parties. The cases following the decision in Erie state that federal courts should conform to state rules even if it is only a procedural rule, when the application of state rules as opposed to federal rules would substantially alter the outcome of the litigation. However, the Court in Herron v. South Pacific Co., 283 U.S. 91 (1931), stated that the application of state rules may not alter the essential character or function of the federal court. The Seventh Amendment protection of the right to a jury trial and the prescribed function of the jury is a fundamental right, which should not be governed by state law in federal court. The Court concluded that there was not a strong likelihood that a different result would occur in the application of state law, as opposed to federal law. Therefore, the state rule should not be applied over the federal rule in this case. iv. There is some federal interest at stake and we want to account for it and the balancing test allows us to account for it. In 1932, Congress passed the Rules Enabling Act. Why is this Constitutional? PG 435. i. As long as rule is arguably procedural, its within the power of Congress to make. Hanna v Plumer (outcome determination test w/twin aims of discouragement of forum shopping and avoidance of inequitable administration of the laws) i. If FRCP is constitutional, then they govern. If its arguably procedural, then constitutional. ii. Facts: Hanna brought an action in diversity in Massachusetts federal district court against Plumer (D), the executor of the estate of Osgood. Plumer was served with process according to FRCP 4(d)(1) by leaving copies of the summons with his wife at his residence. Under Massachusetts rules however, service upon an executor must be handed personally to the executor within one year. Plumer moved for summary judgment on the grounds that the state law rule regarding service should be used. Citing Guaranty Trust Co. v. York, Plumer argued that the Erie doctrine applies when the issue is outcome determinative; in this case if Massachusetts rules applied the case would be dismissed because Plumer had not been served within the statute of limitations and the court would therefore not have
f.
g.

personal jurisdiction over him. On the other hand, if the federal rules applied, Hanna would have an opportunity to have the case tried on the merits. The trial court granted Plumers motion and Hanna appealed, arguing that the rule established in Erie Railroad Co. v. Tompkins applies only to issues of substantive law and not procedural rules. The First Circuit affirmed and the United States Supreme Court granted cert. iii. Issues: Does the Erie doctrine apply to rules of procedure pertaining to service of process? iv. Reasoning: No. The Erie doctrine does not apply to rules of procedure pertaining to service of process. The court held that the question in this case only goes to procedural requirements. A dismissal for improper service under these facts would not alter the substantive right of Hanna to serve Plumer personally and re-file or affect the substantive law of negligence in the case. Article III and the Necessary and Proper Clause provides that the Congress has a right to provide rules for the Federal Court (FRCP 4(d)(1). Plumers arguments for the application of state law are flawed. Under Byrd, federal courts must apply federal law in certain situations regardless of whether choice of law would be outcome determinative. The choice of the federal or state rule have a marked effect upon the outcome of litigation but the difference between the rules would be of scant if any relevance to the choice of forum. A party would not choose a federal court simply because Rule 4(d)(1) has an easier method of service. The Erie rule has never been invoked to void a Federal Rule. This case is differentiated from York and Erie in that they never dealt with a federal rule conflicting with state law. If there is no federal rule, Erie commands the enforcement of state law. The exercise of constitutional authority by Congress in the Rules Enabling Act does not have to take a backseat to state created rights and procedures. The federal rule is valid and controls the case. YORK/BYRD/ERIE i. Arguably Procedural in common law? Yes, then below. ii. Then, Outcome determinate test HANNA i. Arguably Procedural in rules? Yes ii. Then, its Constitutional & valid under Rules Enabling Act, Apply Fed Rules Walker v Armco (Ragan Part 2) i. Facts: Walker, Plaintiff, and a resident of Oklahoma, was injured on August 22, 1975. Plaintiff filed a complaint against Armco Steel Corp., Defendant, a foreign corporation, in federal court based on diversity of citizenship on August 19, 1977. Service of process was not made on Defendants agent until December 1, 1977. Defendant filed a motion to dismiss because the statute of limitations had run by the time Defendant was served. Oklahoma state law states that the action is commenced for purposes of the limitation when the complaint is filed if Defendant is notified within 60 days of filing the complaint. The 60-day limit had expired by the time Defendant was served so the statute had run. Plaintiff argued that Rule 3 of the Federal Rules of Civil Procedure governs the case. Rule 3 states: [a] civil action is commenced by filing a complaint with the court. The District Court dismissed the complaint because the Oklahoma statute was an integral part of the Oklahoma statute of limitations and under Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), state law must be applied. The Court of Appeals affirmed.
h. i. j.

ii. Issues: Is a state statute that determines when a cause of action commences for purposes of tolling the statute of limitations applicable in a federal court under Erie where the statute is in direct conflict with Rule 3 of the Federal Rules of Civil Procedure? iii. Reasoning: Yes. Judgment of the Court of Appeals affirmed. iv. Ragan involved the same situation and held that since the statute of limitations barred recovery in state court then the action should not be permitted to survive in federal court. The test in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), states that if the federal rule is in direct conflict with the state rule, there must be a determination of whether the federal rule is within the scope of the Rules Enabling Act, and therefore within a constitutional grant of power such as the Necessary and Proper Clause. Hanna and Ragan are distinguishable from each other because in Hanna, Rule 4(d)(1) of the Federal Rules of Civil Procedure was in direct conflict with the Massachusetts law governing service of process. In Ragan, the state tolling provision was applied and not Rule 3. Rule 3 does not explicitly apply to the tolling of the state statute of limitations. Rule 3 governs the times at which limitations of federal rules begin to run, but does not establish the time at which a state statute of limitations begins to run. The Oklahoma law requiring a suit to commence by service of process is directly linked to the states policy of having the statute of limitations. The statute, therefore, is not in direct conflict with Rule 3. Thus, the Erie doctrine applies. Under the Erie doctrine, the state law must be applied because not applying the state law would allow out-of-state plaintiffs to avoid unfavorable statutes of limitations. k. Burlington Northern R. Co. v Woods (conflict btwn fed discretionary standard & state mandatory standard for penalties on appeals) i. Facts: Personal injury action. P won in federal court (after removal from state court by defendant). ii. Issues: Whether the state law penalty is applicable in federal court given FRAP 38 and the holding in Hanna and Walker (direct collision). iii. Reasoning: No. When fairly construed, the scope of Federal Rule 38 is sufficiently broad to cause a direct collision with the state law or, implicitly, to control the issue before the court, thereby leaving no room for the operation of [the state penalty law]. l. Stewart Organization, Inc. v. Ricoh Corp. (when to apply forum selection clauses) i. Facts: P and D had a problem with a contractual dealership agreement. The agreement contained a forum selection clause providing that any dispute arising out of the contract could be brought only in a court located in Manhattan. P brought a complaint in the district court of NDAL. Relying on the forum selection clause, D moved the district court to either transfer the case to SDNY under 1404(a) or dismiss under 1406. ii. Issues: What analysis should a district court use in deciding whether to apply a federal statute over a state law in a diversity case? iii. Reasoning: When a federal law to be applied in a diversity action is a congressional statute, there are two questions the court must answer 1. The chief question for the district court's determination is whether the statute is sufficiently broad to control the issue before the court. 2. If so, the court then must inquire whether the statute represents a valid exercise of Congress' authority under the Constitution

iv. If Congress intended to reach the issue before the court, and if it enacted its intention into law in a manner that abides with the Constitution, that is the end of the matter; federal courts are bound to apply laws enacted by Congress with respect to matters over which it has legislative power. Section 1404 is sufficiently broad to cover the issue. m. ERIE HYPOS i.

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