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Civil Procedure Outline

I. Personal Jurisdiction II. Subject Matter Jurisdiction III. Venue *Must all be satisfied I. PERSONAL JURISDICTION- state x vs state y? A. STATUTORY ANALYSIS i. If Federal District Court, look at FRCP Rule 4(k) ii. State Long-arm statute a. Does it permit jurisdiction to full extend possible by Constitution?

B. CONSTITUTIONAL ANALYSIS Constitution Art. IV: Full Faith and Credit Clause: Every state honor judgments handed down in every other state. Amendment 14: Due process clause: No state govt entity can deny any person, life, liberty, or property without due process of law. i. Consent: if party consents to personal jurisdiction of a court by not objecting to courts personal jurisdiction a. IMPLIED CONSENT: Ds in-state activities sufficient to justify service for suits related to the activities. i. Hess v. Pawloski: nonresident motorist statutes: Court upheld jurisdiction based on a statute that treated driving within state as implied apptmt of local official ad Ds agent for service of process in the state in any suit in that state on claims arising from that driving. ii. In personam v. in rem a. Physical Presence test: Pennoyer v. Neff. i. Service of Process: Defendant served with process in forum gives jurisdiction in state. 1. If obtained by Coercion? Unconstitutional b/c violates 14th amendment due process clause. 2. In air? SC upheld service process occurring on airplane above forum state or in airport in forum state while D changing planes. ii. Agent: Ds agent can be served with process in state. 1. Problem: hard to show that personal service on an employee sufficient to establish personal jurisdiction on a corporation if corporation doesnt have a physical presence there. a. Go to minimum contacts test. iii. Domicile: Person can have many residences but only one place of domicile. 1. Corporation: if incorporated in that state. b. In rem: Attachment of property in forum state at the beginning of suit to establish court jurisdiction. AND suit must center on attached property c. Quasi In Rem I: Attachment of property to settle property disputes between two parties. d. Quasi In Rem II: i. Shaffer v. Heitner: All jurisdictions including quasi in rem II are against persons now. 1. Attaching property not enough b/c property ownership not enough to establish personal jurisdiction in forum state. 2. Established min contacts (Int.Shoe) as the uniform standard. e. Tag/Transient jurisdiction i. Burnham (plurality): 1. contact dont need to be related to suit but traditional in-state personal service still valid (even if D is in forum temporarily)

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2. Shaffer only requires Int. Shoe when obtaining jurisdiction against out-of-state D. 3. Scalia: physical presence/personal service ok b/c of continuing tradition. 4. Brennan: must satisfy int. shoe test of purposeful availment and reasonableness 5. Facts: P moved to Cali and filed for divorce in Cali. D visiting Cali on business when he was served with divorce papers. Ds primary reason for visiting Cali was for business but while there he visited his daughters.

In personam

Nature of Dispute Dispute about obligations of person

Basis for Jurisdiction Person found in or resident of state

Due Process Requirement Resident of state Personal service of process in state (or agent) Voluntary appearance/ consent

Pure in rem Quasi In Rem Type I Quasi In Rem Type II

Ownership of property, as to whole world Ownership of property, as to parties to litigation Dispute has nothing to do with property; except that property would be used to satisfy any judgment

Property in state Property in state Property in state Substituted process by publication & Court must attach property at beginning of litigation

Min contact Cont/systematic

General(unrelated) Maybe- if substantial and of such nature at home in forum state (dealt with in IntShoe AND Goodyear) NO jurisdiction

Specific (related) YES jurisdiction

Single/isolated

Maybe- if D purposefully avails itself of benefits of forum State AND reasonableness (dealt with in McGee v. Int Life Insurance AND WWV)

iii. Minimum Contacts (International Shoe): Out-of-state Defendant a. International Shoe (14th Amendment) i. Minimum Contacts: ii. Fair Play and Substantial Justice: quality and nature of contacts 1. If receive benefits of the protection of states laws, fair to submit to state courts jurisdiction iii. Facts: Int. Shoe Co., a Delaware corporation, had salesmen in Washington (forum) on commission. No office and salesmen have no authority to enter into contracts. Int.Shoe didnt pay tax to Washington. Notice personally served upon sales solicitor. iv. Rationale: 1. Protect D from burden of litigation in inconvenient forum 2. State not reach beyond limit imposed on them 3. Related/Continuous a. Contact- employees b. Cause of action- tax on employees c. Continuous- (1) received benefits and protections of law of the state (2) regular and systematic solicitations of orders in state by Ds salesmen, (3) continued flow of Ds product into state sufficient to constitute doing business in state v. Internet? 1. If Website operator intended to target resident of forum state-- probably minimum contacts. 2. If local business passively posts info on Web &not want to reach in-state residents or conduct transaction with them--probably not minimum contacts 3. If conduct transaction with in-state residentsprobably minimum contact b. Specific jurisdiction (cause of action related to Ds contact to forum state) i. Purposeful Availment (WWV): of benefits and protection of law of state

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1. Purposeful Availment a. McGee v. Int.l Life insurance: bilateral movement. CA citizen purchases life insurance from AZ company. TX company acquires insurance policy from AZ company. Contact in CA solicited by D. i. Relatedness (specific jurisdiction)- Ps claim arose from Ds one contact with the forum. ii. State interest- CA had interest in protecting its citizen. b. Hanson v. Denckla: DE bank shouldnt be subject to Flas personal jurisdiction. No solicited business and consumer unilaterally moved to Fla and maintained trust with bank--no purposeful availment. i. Purposeful Availment= intentionally and actively reached into forum state to establish its contacts. ii. Unilateral act of consumer insufficient. iii. Act of purposeful availment of privilege to conduct activities within forum state, invoking benefits/ protection of its laws 2. Stream of Commerce (Form of Purposeful Availment): Manufacturers & their products/components of products that enter the stream of commerce. a. Gray v. American Radiator: (not SCOTUS case) i. Jurisdiction because corporation knew when it injected products into stream of commerce, that it will end up different states and still sold it for ultimate use there, continuous stream, benefited from market/laws of state. ii. Facts: IL case- component manufacturer whose product was sold in a hot water heater in state, which caused injury, was sued. Even if product production occurred in a different state, court has jurisdiction over D. b. Worldwide Volkswagen: Reasonably anticipate being haled into court there; NOT likelihood that product will end up in forum state (no unilateral activity of consumers) i. Purposeful Availment: foreseeability of getting sued there. ii. Reasonableness iii. Facts: Customer took car to OK (unilateral activity) so no anticipation of suit. D got no benefit from forum. iv. Rationale: 1. Related and single/isolated a. Cause of action b. Ds contact with forumc. Single/isolatedv. Due Process 1. 14th Amendment- limit power of state courts jurisdiction over nonresident D (protect indiv against state) 2. Adequate notice: min contacts 3. Full faith and Credit Clause: instrument to interstate FederalismProtect state against other states. Assert sovereignty of each state by limiting sovereignty of other states. c. Asahi: i. (plurality) (i.e.: didnt garner majority but majority of justices would agree there is jurisdiction) ii. Opinions: 1. OConnor: Need awareness + additional conduct (intent to serve forum)

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a. b. c. d.

Seek to serve market in forum state Design product Advertise there Establish channels for providing regular service to customers there e. Market product through a distrubor that agreed to serve as sales agent in forum State 2. Brennan: Mere awareness = reasonable anticipation of suit. a. Chain of distribution v. unilateral act of consumer 3. Stevens: volume, value, hazardous character test iii. Facts: Foreign co. sues another foreign co./product liability. iv. Rationale: 1. Related and single/isolated a. Cause of action: defective tire b. Contact: c. Single/isolated: yes. d. Asahi no business in Cali (no office, agents, employees, properties) 2. Reasonableness Test a. Burden on D high: distance btw Japan and cali b. Interest of forum state: low. SC of Cali interested in protecting its residents, not foreigners c. Ps interest: low. Zurcher settled. ChengShin hasnt shown that its more convenient to litigate there than Japan/China d. Interstate judicial system: e. Shared interest of states: Fed government is interested in foreign relation policies 3. Calder: Effects test a. if knew effects of their intentional activity would reach forum, sufficient (Emphasis on Ds conduct in forum state); D doesnt have to set foot in forum b. Facts: Even though neither Ds had ever been in CA (forum state) and didnt contact anyone in CA in order to write their article, they knew that by writing the article, its effects would be felt in forum state (since National Enquirer has national circulation). Ds can be sued there b/c they targeted forum state. 4. Keeton: Even though D had no prior contact in NH, Ds regular sale of magazines in NH constituted purposeful availment and upheld jurisdiction. a. D knew, when it entered magazines into stream of commerce, that it would end up in NH. 5. Internet: does internet contact show purposeful availment? a. Is website i. Passive: No jurisdiction ii. Active: jurisdiction iii. Interactive: depend on degree of interactivity and commercial nature of website. Highly active commercial website support PJ ii. Reasonableness (WWV/Asahi) No specific jurisdiction if factors destroy personal jurisdiction 1. WWV Factors:

Civil Procedure Outline

a. Burden of inconvenience to D i. Cost of travel/time b. States interest in adjudicating dispute i. Protect residents c. Ps interest in obtaining convenient/ effective relief d. Interstates judicial systems interest in obtaining the most efficient resolution of controversies i. Witness? Documents? Evidence? e. Shared interests of several states in furthering fundamental substantive social polices i. Fed govt interested in foreign relation policies c. General jurisdiction i. But-for or proximate causation 1. How to determine when claim is sufficiently related to Ds contact with forum state a. But-for: but for Ds contact with forum state, cause of action would never have happened. b. Proximate: connection ii. Goodyear- continuous and systematic contacts as to render them essentially at home in forum state 1. Nonresident D, acting outside forum, places in stream of commerce a product that causes harm inside the forum. 2. Facts: No business in NY; no ad; no soliciting business in NY; only small %age of Ds tires distributed within NC; type of tire involved in accident not distributed to NC 3. Rationale: a. Unrelated and Continuous/systemic i. Cause of action: accident b/c of tire in France ii. Contact: tire (manufactured/sold abroad) b. We dont want every seller of chattels to be amenable to suit, on any claim for relief, wherever its products are distributed iii. Perkins- headquarter enough for general jurisdiction even if temporary place of business iv. Helicopteros Nationales de Colombia v. Hall Ds contacts, regular purchases and selling projects that ultimately ended up in forum, not enough for general jurisdiction. II. NOTICE AND OPPORTUNITY TO BE HEARD * Need to satisfy statutory and constitutional reqs after personal jurisdiction established. A. STATUTORY REQUIREMENT FOR NOTICE: Federal and state rules and statutes i. Service of Process (FRCP 4) a. Summons and Copy of Complaint: i. Summons: document from court declaring authority b. Functions: i. Provide information to D ii. Ceremonial assertion of authority of sovereign c. Made by any non-party who is at least 18 years old. d. If obtained by means of trickery or deception? Permissible! i. Pizza delivery man, florist, etc. e. How to serve an individual? FRCP 4(e) i. Personal service: anywhere (MAIL not ALLOWED unless state law allows it)

Civil Procedure Outline


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Substituted service: must be at Ds Dwelling or Usual Abode. Can be made to someone of suitable age and discretion who resides there. i. Dwelling or Usual Abode 1. Multiple dwellings: Can be served at any of several dwellings, provided each contains sufficient indicia of permanence: a. Some states: If D maintains one residence for certain days or certain months b. Others: Required D be actually living at residence at time service is effected c. National Dev. Co. v. Triad Holding Corp.: i. Indicia of permanence: 1. Spent money on remodeling 2. Listed apartment as one of his residences 3. Actually lived there on day of service delivery ii. Received by his maid who lived there. 2. Can include hotel room, parental home of college student ii. Suitable Age/Discretion: ask if shes of suitable age/discretion 1. Can include resident manager living in same building but not same apt iii. Ds Agent: Can be by appointment or by law iv. Use method permitted by State Law f. How to serve business? FRCP 4(h) i. Officer or managing or general agent: someone with enough responsibility/ high up in the ladder so that its reasonable to assume person will transmit notice to superiors. i. If have title then service is ok ii. Physical proximity insufficient. iii. Ex. Secretary? May be considered managing agent; ii. Method permitted by State Law. g. How to serve party in foreign country? FRCP 4(f) i. Personal service or mail service to foreign country generally unavailable (Why? b/c this regarded as a sovereign act) h. Waiver of ServiceFRCP 4(d) i. Mail process and waiver form to D Provide self-addressed return envelope D signs D mails back to P and P files. i. D gets longer time period to answer (60 days instead of 20) ii. If D fails to return waiver form, P has to formally serve and D may have to pay cost of service B. CONSTITUIONAL REQUIREMENT OF NOTICE (Mullane) Due Process Clause of 14th Amendment i. Actual Notice: Reasonably calculated, under the circumstances, to give party notice of proceeding and opportunity to present their objections a. Mullane v. Central Hanover: 1. Facts: Common trust fund-- multiple Ds, some of whose addresses were unknown. Notice only sent to NY residents and nonresidents by publication in a local newspaper. If no one objected, foreclose subsequent challenges by beneficiaries for $ mismanagement. Problem: nonresidentshave agent for their property but this agent is part of D, who is released from giving notice. 2. Doesnt need to inform everyone but must try to serve as many people as they can without sacrificing efficiency. ii. Known/present interest: At least notice by mail. Notice by publication insufficient. iii. Missing/unknown: notice by publication sufficient b/c no other alternative possible and expensive (not consistent with prudently managing fund)

Civil Procedure Outline

ii. iii. iv.

v.

iv. Beneficiaries with conjectural/future interests: Notice by publication sufficient b/c impractical costs of finding them. Even if D never got actual notice- due process doesnt guarantee notice will be received. If P aware that D didnt get actual notice, P has to take further steps if reasonable. a. Jones v. Flowers: certified mail was returned unopened, P took no further steps to notice= didnt give notice. This isnt what someone desirous of actually informing P would do Other problems: a. Cant understand notice? b. If sender didnt know recipients mental deficiency? c. Posting notice on physical property? Inadequate (But Mullane would say adequate b/c reasonably calculated to attract owners attention) d. Service by mail always sufficient? Depends. e. Email? Some courtssufficient. Accd to Rule 4, insufficient, except if against foreign corporation or if state law allows it. Rule 4(k)(1) a. May get personal jurisdiction over a party joined under Rule 14/20 and is served within 100 mi of courthouse in which suit is brought.

C. OPPORTUNITY TO BE HEARD Due Process Clause of 14th Amendment i. Chance to tell your side of story before subjecting to binding rule a. Scope: Depends. Full trial to defend yourself but not always required b. Timing: Ideally, chance to be heard before deprivation c. Constitutional Limitations: i. If Federal Court (FRCP 65) 1. Temporary restraining order- no notice or preattachment hearing 2. Depending on courts discretion, provide detailed affidavit and exigent circumstances (injury, loss), last 14 days-- to limit damage to D and P to provide security (bond) Requires consideration of: (Matthews Analysis) a. Private interest that will be significantly affected by official action b. Risk of erroneous deprivation of such interest through the procedures used and the probable value, if not, of additional or substitute safeguards; and c. Govts interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural req would entail. Prejudgment Attachment of Property without a hearing NOT ALLOWED a. Conneticut v. Doehr: Creditor/ Debtor situation i. Facts: P attached Ds home in conjunction with civil action for assault/battery. Court ordered attachment of Ds house but D only received notice of attachment afterwards and hadnt been served complaint. Court said due process requires preattachment hearing and/or show exigent circumstances. ii. Modified Matthews Analysis Applied 1. Private Interest affected: highdeprivation of interest of Ps rights- title, impaired ability to sell, taint credit) 2. Risk of erroneous deprivation: highcourt is letting attachment based on onesided affidavit a. Additional safeguards? Safeguard like postattachment hearing insufficient b/c doesnt compensate for temporary harm- D deprived of use during postattachment hearing. 3. Interest of P: minimal a. Didnt have preexisting interest b. No indication that D wouldnt have paid

ii.

iii.

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4. Interest of Govt: low a. government is interested in Ps interest and Ps interest is law. b. Since it afforded full hearing afterward, could have hearing beforehand

III. SUBJECT MATTER JURISDICTOIN- fed v. state court system? *Both constitutional and statutory authorization. Constitution Art. III, sec. 1 the judicial power of US, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish. Constitution Art. III, sec. 2 judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of US, and Treaties made, or which shall be made, under their authority(Fed Q) To all cases affecting ambassadors, to controversies to which US part of. (Diversity- but not complete diversity) IF FEDERAL COURT, every claim (including crossclaim, counterclaim) must meet federal SMJ. A. DIVERSITY JURISDICTION (congressional-- 1332) i. Requirements: a. Complete diversity at the time of filing-NOT at time of action (no Ps can have the same citizenship as any Ds) i. Strawberry v. Curtiss (CL narrower than Constitution) 1. Ps: Mass citizens 2. Ds: Vermont citizen + Massachusetts citizens b. Amount-in-controversy greater than $75,000 ii. INDIVIDUALS: a. Persons: i. Citizenship= state of domicile= physical residence + intent to stay for indefinite period ii. Physical residence: until you get a new one (only one) 1. Multiple residences: use Center of Gravity Test a. Whether persons family moved to forum state with him b. Place of work c. Voter registration d. Tax e. house iii. Intent: intent to stay for foreseeable future. 1. If in process of changing domicile, go back to where you were domiciled last 2. If student in a state, that state not considered having intent to stay 3. Proof of intent include voter registration, purchase of house, payment of tax a. BUT, despite having objective indicators to change domicile, if in true heart, intended to circumvent law, then havent change domicile. iv. US citizens living abroad? No state citizenship. Cant sue in Fed Court v. D.C & Other US Territories: For the purpose of establishing citizenship pursuat to 1332, considered citizens of states, even though these arent actually states. vi. Mas v. Perry: 1. Domicile Definition: a. A persons true, fixed, and permanent home and principle establishment AND b. To which he has intention of returning whenever he is absent there from 2. Eliminate practice that wifes domicile determined by husbands domicile. Mr. Mas not a US citizen while Mrs wasimpossible to deny Mrs her citizenship b/c of her marriage to a foreigner. b. Corporation: (1332c1):

Civil Procedure Outline


i. ii.

iii.

Citizen of state(s) of incorporation AND Citizen of state of principal place of business 1. nerve center test: where major business decisions are made and from which business directed. 2. Place of activity test: main production or service activities. 3. J.A. Olson Co v. City of Winona: a. Facts: P: incorporation= IL; principle place of business= IL or MS. D: citizen of MS. i. IL: Ps corporate office, records, major corporate/financial decisions made ii. MS: base of operations. (principle place of business according to 2nd rule of Total Activity Test) b. Total Activity Test: Nerve center + place of activity test i. If operations far flung, sole nerve center more significant ii. If sole operation in one state and executive officers in another, place of activity more significant iii. If activity of corporation passive and Brain of corporation in another state, place of corporations brain given greater significance. iii. Randazzo v. Eagle-Picher Industries, Inc.: 1. Problem #1: Ps allegation that D domiciled in PA may mean incorporated there but not affirmatively shown. 2. Problem #2: Ps allegation of a registered office NOT equivalent to allegation of Ds principle place of business iv. Purpose of 1332c1: reduce caseload of federal cts c. Unincorporated entities: i. i.e. Partnerships, LLCs 1. Belleville Catering Co. v. Champaign Market Place L.L.C: a. Case dismissed b/c LLC cant be treated like a corporation. b. P1(Belleville): IL and Missouri; P2(individuals): Missouri c. D: IL; some members in IL and another member is an LLC so we dont know. ii. 1332c1 does NOT apply iii. Domiciled in ANY state where a member is domiciled. d. Representatives: i. Use represented Ps domicile. e. Alienage Jurisdiction (s1332a2): US citizen v. citizen of foreign country i. Foreign citizen as a permanent resident alien: considered domiciled in that state. AMOUNT-IN-CONTROVERSY greater than $75K a. This req fulfilled even if P entitled to recover less than $75K at the end of adjudication, as long as P, in good faith, filed case originally as over $75K. b. Aggregate claims i. 1P v. 1 D: Aggregate all claim amounts, even if claims unrelated legally/transactionally ii. P v. multiple Ds: Each claim has to be > $75K unless joint liability 1. If joint liability, either D might be held liable for entire amount, so allowed. iii. Multiple Ps v. D? Aggregate only when Ps are seeking to enforce single right in which they have they have common/undivided interest iv. Multiple parties on either side- cant aggregate! 1. Aggregation allowed if case involves common, undivided, or joint claims. c. Equitable relief (cant put dollar value on claim- i.e. polluting stream) i. D alleged acts harm the P by more than $75000 OR ii. Complying with injunction would cost more than $75000

Civil Procedure Outline


iv. d. Class action: look only to citizenship of class rep (one who sues on behalf of group) RATIONALE: a. Neutral forum, free from local bias b. Efficiency

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B. FEDERAL QUESTION JURISDICTION i. CONSTITUTIONAL AUTHORITY: Constitution Art. III, Sec. 2 all Cases, in Law and Equity, arising under this Constitution, the laws of US, and Treaties made (broader than statutory authority) ii. STATUTORY AUTHORITY: 1331 District Cts have original jurisdiction over all civil actions arising under the Constitution, laws, and treaties of the US State courts can hear all claims (general s.m. juris) except those under exclusive federal jurisdiction Federal courts cant hear cases except those under Federal Q or diversity. iii. REQUIREMENTS of STATUTORY AUTHORITY a. Well-Pleaded Complaint Rule: (is the federal question found in Ps complaint itself?) i. No fed juris if Federal Q appears in counterclaim or affirmative defense: ii. Mottley v. Louisiville & Nat.l RR: 1. Affirmative Defense: On Ps Complaint: P sued D for breach of contract. D may defend saying performance of contract illegal under federal law. P would then respond that statute shouldnt be construed to render contract unlawful if doing so violates 5th amendment 2. Why no federal juris? Didnt say D violated fed statute in WPCR since D didnt violate fed statute. D breached contract 3. FACTS: RR passes that P got from D and D didnt honor b/c it would have violated a new federal law to do so. Ps case arose as a state breach of contract dispute and only way for federal lw to be considered was for D to raise it. Failed WPCR. iii. Counterclaims: Not part of Well-Pleaded Complaint, even if counterclaim arises under federal law. 1. If in the counterclaim, tack on brand new lawsuit on trademark issue federal issue. Satisfies WPCR for the new suit. But this doesnt transform original lawsuit into a federal question jurisdiction issue because WPCR looks at original lawsuit complaint (which didnt have federal Q jurisdiction issue) i. Declaratory Judgments: Declares rights and duties of parties in a dispute. Fed cts allowed to provide declaratory judgments 1. When binding decision is sought in order to resolve an actual dispute a. Usually brought by party, which would be D in an action for coercive relief in order for court to declare what they were doing to be legal. 2. For declaratory judgment suit to meet standards for federal subject matter jurisdiction, it doesnt matter which party brings suit. If party who would bring suit for coercive relief (remedy that will force D to do sth) would be able to do so under rules of federal subject matter jurisdiction, then federal court can hear the suit for declaratory judgment. 3. Declaratory judgment doesnt provide jurisdictional basis a. Reason: to allow it would provide a way around WPCR b. Mottley: Even if Mottleys had added declaratory judgment in their claim, still wouldnt get federal question jurisdiction. c. Constitutional Basis: Art. III, Sec.: Fed courts have jurisdiction only over cases and controversies- NOT requests for courts opinion on a matter. d. Advantages: easy and decide on onset of case

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e. Disadvantages: Kicks out some cases w/ fed issues from federal court.

c. Centrality: Does every aspect of case have to be addressed by federal law or can there be some state elements? Federal Issue is a sufficiently central part of dispute i. Constitutional grant of federal Question Jurisdiction: only that federal law be an ingredient of case (Osbourne v. Bank of US- interpreting Const. Art. III) ii. Statutory Grant: narrower 1. Cause of action created under federal law: a. If Congress created own separate cause of action, Congress must think it was important and assume federal law is substantial- 2. if suit arise from state law but depends on interpretation of federal law a. Holmes Test: Applied to determined if federal court should have original jurisdiction over a case based on arising under: i. Federal law created the underlying substantive right P seeks to enforce AND ii. Authorizes P to go to court for a remedy b. Grable Test: (if Holmes test not met) i. Federal issue must be Substantial and Central 1. Substantial and central dispute that cant be decided unless federal law was interpreted/applied. ii. Substantial interest of federal government iii. Does not violate congressional intent- division of labor btw state/fed ct- not cause flood of cases iv. Grable v. Darue Engineering: 1. Facts: IRS seized Ps property for Ps federal tax delinquency. P notified by mail but P brought quiet title action, saying P didnt notify by personal service. 2. WPCR: yes. Claimed title invalid b/c IRs didnt give notice (notice a federal issue). 3. Centrality: yes 4. Central to claim? Yes. Issue is adequate notice, which depends on validity of federal statute. Meaning of federal tax provision is substantial issue of fed law. 5. Serious federal interest? Strong interest in prompt and certain collection of delinquent taxes 6. State/fed ct divide/ would lead to flood of cases? No. Rare state title case so there wont be flood of cases c. Merrell Dow: i. After Grable, interpreted as Federal cause of action is sufficient but not necessary ii. WPCR: yes. P have to show that D violated federal Food, Drug, & Cosmetic Act iii. Centrality: No. 1. Central to claim? Yes because state negligence tort claims validity hinges on interpreting fed law. 2. Substantial federal govt interest? No, not interested b/c its a tort case 3. State/fed ct divide/ would lead to flood of cases? No. b. Substantial Federal Interest a. Collection of fed tax? Substantial (If like Grable, substantial) b. Regulatory/ run of-the-mill federal statutes such as safety/drug labeling/benefits NOT substantial. (If like Merrell Dow, not substantial)

Civil Procedure Outline


iv. RATIONALE: a. Neutral federal forum to vindicate federal clams- not polluted by political bias/electorate b. Fed court can develop expertise on federal law.
Did congress have constitutional power to grant authority to Cts? Does questoin fall under Holmes test?

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Is supposed federal Q found in P's complaint itself? (WPCR)

Grable:

Does the question fall within the Grable test?

C. SUPPLEMENTAL JURISDICTION i. Allow federal court to take jurisdiction over a case, which meets the standards for federal subject matter jurisdiction (diversity, fed Q) but also includes state question. Helps us gets a non diverse/non fed Q claim to join in a case. a. Aka Pendant or Ancillary Jurisdiction b. Frequently includes multiple claims within a single complaint (joinder) a. Federal courts have power to hear such claims, as long as they are closely related to the underlying dispute as to constitute part of the same case or controversy (fed Q claim and state claim share common nucleus of operative fact) b. Gibbs: Fed ct has power to exercise juris over state law claim IF i. state claim and federal claim in one action arise from common nucleus of operative fact (same overall dispute) ii. Fed and nonfed claims related so that would expect to try them all in one proceeding; iii. Fed Q must have substance sufficient to confer subject matter juris. 1. Not frivolous 2. Timing of when fed Q dismissedif fed claim survive until after trial, does that show substantiality? iv. But court shouldnt exercise its discretion t o adjudicate the state law claim IF: 1. Federal claims dismissed before trial; 2. State issues substantially predominate; OR 3. Reasons independent of jurisdictional considerations (likelihood of jury confusion) 4. Consider judicial economy, convenience, and fairness to litigants (local bias) c. 1367: Codified under 1367. Establishes congressional intent i. Does 1367(a) grant jurisdiction? If yes, it meets Gibbs test(common nucleus of operative fact= form part of same case/controversy) Art III Constitution ii. Does 1367(b) take away that grant? (look at it) 1. This exception only applies if original case got there as diversity case! 2. Also, only takes away supplemental jurisdiction from claim by P, Not D. D. REMOVAL (Governed by 1441, 1446, 1447) i. Permits DEFENDANT, without having to ask for permission, to move a case from state court federal court in federal district where state court located ii. Rationale: avoid local bias/ locally elected judges. iii. Rule #1: To remove a case, must have federal SMJ! a. Diversity:

YES

SMJ

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i.

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i. ii.

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EXCEPTION: In-state D rule: If D from forum state, case may NOT be removed to federal court (1441(b)) 1. Reason: a. No proof of bias because D not being force to litigate outside his home state b. No inconvenience for D, since suit brought in his home state b. Federal Question Rule #2: Can only remove to federal district court that embraces the state court where case was filed. Procedure of removal (1446) a. File notice in federal court b. Provide notice to P c. File notice in state court d. Time: 1446(b): removal must happen within 30 days after receipt by D of notice of suit(service) Rules for Removal a. Rule #3: Multiple defendants: Unanimity--all defendants must agree on removal for it to take place i. Subsequent defendant: Original Ds failure to remove during the original 30 days removal time period is binding on new Ds. ii. Addition of New D in an amended complaint does NOT start time for removal anew when original complaint itself was removable. iii. Noble v. Bradford Marine, Inc. 1. Facts: Ds fire damaged Ps vessel. Even D2 could not remove case to federal court because 30 days limit had expired for D1. iv. Exception to Unanimity: 1441(c): single D may remove an entire case, so long as there is a separate and independent federal question claim against her. Federal court can either adjudicate the non-federal issues in the case and remand them to state court. 1. separate and independent: defined strictly. a. Not even third party D may remove for separate and independent federal question claim under 1441(c). b. Ex. P asserted federal claim of collective bargaining agreement along with series of state law claims. State claims transactionally unrelated to federal labor law claim so removal proper under 1441(c) b. Destruction of diversity: If after case is removed a second defendant is added to the case who is from the forum state or same state as P (destroying diversity), court may either forbid addition of subsequent defendant or remand case to state court c. Dropping Non-Diverse Defendant v. If after 30 days, P drops the non-diverse D from case, then case removable, if that action takes place within one year of filing the complaint vi. If non-diverse D removed from case by judges order, then case not removable vii. Removal only on action by P, not by action of D Remand 1446: If federal court thinks there is no subject matter jurisdiction, it must remand case to state court or dismiss a. Decision to remand to state court not reviewable on appeal (1447(d)) i. Except in cases which were removed b/c the arose under a civil rights claims 1443 b. Denial of decision to remand may be reviewable on appeal at end of lawsuit

iii.

IV. VENUE- which court within a system? Waivable Right: If defendant not raise an objection to venue, at the appropriate time, then has waived his right to bring objection o Some: If improper venue the only problem with the case, courts will find this a harmless error. NOTE: doesnt apply to cases that were removed (removal has their own rule) Policy: convenience.

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A. STATE SYSTEM (depends on state statute) i. Limited by state boundary (cant change venue btw states) ii. Venue appropriate in courthouse covering the district where the land is located; where D resides. iii. States have special venue rules. B. FEDERAL SYSTEM (1391) a. 1391(a): only on diversity of citizenship 1. district where any D resides, if all D reside in same State a. Reside ~ Domicile (same as citizenship for diversity purposes) b. Note: if all Ds reside in same State, you can lay venue anywhere one of D resides 2. district in which a substantial part of events/omissions giving rise to claim occurred, or a substantial part of property that is the subject of action situated, OR 3. Fallback Provision: if no district in which action may otherwise be brought, district where D subject to personal jurisdiction at the time action is commenced. b. 1391(b): not founded solely on diversity of citizenship i. (1) and (2) same as 1391(a). ii. (3) if no district in which action may otherwise be brought, district where D may be found. c. 1391(c): D as corporation. i. District in which D subject to personal jurisdiction at the time case filed. 1. Note: this is broader than def of residence for diversity purposes. ii. If State has more than one judicial district and in which D is subject to personal jurisdiction at the time action is commenced, district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate States 1. Treat each district as an individual state and apply personal jurisdiction tests for corporation iii. If no such district, district which has most significant contacts iv. NOTE: Once figured out where corporation is subject to personal jurisdiction, venue is appropriate there. d. 1391(d): Alien may be sued in any district i. BUT, P needs to serve alien D with process in that district or establish personal jurisdiction in the district in some other manner ii. Also need to meet reqs of subject matter jurisdiction. e. Bates v. C&S Adjusters, Inc.: i. Facts: P incurred debt while resident of Western District of PA. P moved to Western District of NY. D, which transacts no regular business in NY, mailed collection notice to P at his PA address, which was forwarded to Ps new address in NY by Postal Service. Is Western District of NY proper venue? ii. 1391(b)(1): NO. iii. 1391(b)(2): Yes. Receipt of collection notice in NY substantial part of events giving rise to a claim under Fair Debt Collection Practices Act, regardless of whether D entered that venue. 1. Doesnt matter that D didnt deliberately send notice to NY. If didnt want to forward, could have indicated that on envelope. 2. Substantial part test: Not equal to minimum contacts test. C. TRANSFER: (1404(a), 1406(a)) Move case within judicial system a. Definitions: a. Transferor Court: where case is originally filed b. Transferee Court- Court to which case is transferred. b. NOTE!! Transferee must be a proper venue and PJ over D. These must be independently true and cant be waived by nonmoving party (cant just let it go) c. Transfer in State courts: a. Majority: permit transfer if D unlikely to get fair trial. b. Others: only on motion by D or ordered sua sponte (by judges action without a motion) c. CANNOT transfer case across state boundary (state separate judicial system)

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d. If want to litigate in another state, forum non conveniens and P can file new action in another state, assuming statute of limitations has not expired. d. Transfer in Federal Court: a. From one federal district court to another. b. Not restricted by state boundary c. Either D or P may make motion for transfer d. 1404a- venue of transferor (original) court proper i. Any district where suit might have been brought under ii. Upon consent of all parties. e. 1406a- venue of transferor court was improper i. Up to judge to transfer or dismiss e. Goldlawr Rule: If venue not proper, court could transfer to correct jurisdiction under 1406(a) even if court technically doesnt have personal jurisdiction. Why? Easier/efficient. D. CHOICE OF LAW: a. If state court: forum applies its choice of law b. If Federal Court: a. If no federal statute on point, applies state law in which it sits (Klaxon v. Stentor Elec. Mfg) b. If Federal case transferring? (Van Dusen) i. When D seeks 1404(a) transfer, apply transferor court law. 1. Rationale: if change of venue brought with it change of law, D would abuse 1404(a) to defeat Ps advantages who have chosen a forum which was a proper venue. 2. Considerations: a. Convenience of parties b. Convenience of witness c. Interest of justice i. When D seeks 1406(a), apply transferee court law. 1. Court shall dismiss or if in the interest of justice, transfer 2. Rationale: transferor court wasnt proper venue to begin with, so choice of law also not proper. E. FORUM NON CONVENIENS a. Used when D believes suit was filed in wrong court system and wants to have case dismissed, in order for it to be refiled in correct court system a. State-State: If suit filed in one state court, but should have been field in another state. Since states cant transfer cases to other state court system (sovereign entities), invoke FNC and refiled in other state court. b. State-foreign: If state filed in state court, but should have been in foreign jurisdiction (sovereign entities dont have authority over each other) c. Federal-foreign: If suit filed in federal court, but should have been filed in foreign jurisdiction, FNC. b. Only filed by DEFENDANT c. Unlike transfer or venue, NOT CODIFIED in federal law or FRCP. d. If some states do NOT HAVE FNC a. D will remove case to federal court b. Then make a motion for FNC e. FNC Rule: (Gilbert) Court has discretion to dismiss based on FNC. a. Is there alternative forum which has jurisdiction to case? b. Private factors: Would trial in chosen forum create oppressiveness and vexation so as to outweigh all convenience factors for P? AND c. Public factors: Is chosen forum inappropriate because of considerations affecting courts own administrative legal problems? d. GILBERT TEST: i. Private Interest factors

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1. Relative ease of access to sources of proof 2. Availability of compulsory process for attendance of unwilling, cost of obtaining attendance of willing witnesses. 3. Possibility of view of premisesis view appropriate to action 4. All other practical problems that make case easy, expeditious and inexpensive ii. Public Interest factors 1. Administrative difficulties flowing from court congestion 2. Local interest in having localized controversies decided at home 3. Interest in having trial of a diversity case in a forum that is at home with the law that must govern the action 4. Avoidance of unnecessary problems in conflict of laws, or in application of foreign law a. Conflicting choice of law rules and application of foreign law by court unfamiliar with that legal system b. Applying multiple types of laws in one case confuses juries 5. Unfairness of burdening citizens in an unrelated forum with jury duty a. Piper Aircraft Co. v. Reyno: a. Facts: P: represent estate of several Scottish citizens killed; D: American manufacturers b. Purpose of f.n.c is convenience end to avoid complexity c. Plaintiffs choice of forum: Under most circumstances, Ps choice of venue important BUT foreign Ps choice less important b/c convenience irrelevant. d. Gilbert Analysis: Convenience test e. App: i. Alternative forum- Great Britain ii. Litigation burdensome to Ds when consider private/public interest iii. Private interest: Yes 1. a lot of relevant evidence in Britain--witnesses there 2. require extensive investigation to interview witnesses in US 3. Air Nav. And McDo crucial to presenting Ds defense. 4. More convenient to resolve all claims in one trial iv. Public interest: Yes 1. confusing to jury 2. lack of familiarity with Scottish law 3. Scotland ahs strong interest in litigation (citizens, accident in Scotland) F. DISTINGUISH FORUM NON CONVENIENS V. TRANSFER OF VENUE FNC Federal transfer of venue 1. May require D to waive statute 1. Statute of limitations continues of limitations in the foreign from where it left off in previous jurisdiction in order for FNC to be court granted 2. FNC only requested by 2. Venue transfer available to both Defendant Defendant and Plaintiff 3. If case refilled after granting an 3. 1404, substantive law of court FNC motion, law of new court doesnt change applied. V. ERIE DOCTRINE A. CONSTITUTIONAL BASIS: i. Necessary and Proper Clause ii. Const. Art. III: Congress may create lower level of federal courts and define jurisdiction of all federal courts

Civil Procedure Outline


a. Federal courts authorized to hear suits over issues not related to federal laws, if those issues were between citizens of different states (diversity suit). a. PROBLEM: What law should federal courts apply then?

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B. WHICH LAW APPLIES IN FEDERAL COURTS? i. If Federal Law directly on point? Federal court has authority to ignore state law that conflicts: a. Const. Art. VI Supremacy clause: Constitution, Laws of US, all Treaties made, under authority of US, shall be supreme law of land; and judges in every state shall be bound b. So Federal Court applies federal law for federal question jurisdiction. i. If FRCP BUT conflicts with State law? HANNA TEST a. If Federal rule involved, ON POINT and VALID, then Supremacy Clause dictates that the rule governs diversity cases. i. For validity of FRCP, look at scope of Enabling Act and constitutionality of specific Federal rule. a. Rule Enabling Act 2072: Test for Validity of Federal Rule: Procedural rules may be promulgated by federal courts i. Constitutional validity and procedural 1. To determine scope of REA, ask If federal law rationally capable of classification as procedural? a. YES- at least arguably procedural= Satisfies Constitutional standard since Congress has authority to mandate procedural rules of federal courts and Congress permitted federal procedure that are valid to be in federal court. 2. Rationally Capable a. Relates to the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them. ii. Part B of 2072: such rules shall not abridge, enlarge or modify any substantive right 1. If Federal rule would have substantial impact on state policy iii. SCOTUS has never invalided at FRCP but should test its validity through Rule Enabling Act (include this in exam) b. Case where State rule prevailed i. Walker v. Armco Steel Corp: Upheld state law because FRCP 3 not intended to toll a state statute of limitations (Outcome Determinative Test- would create unequal administration of justice b/c substantial variation btw state/fed litigation). i. ERIE DOCTRINE: Problem only in diversity case--If no federal law on point, federal court in diversity cases apply state substantive law. a. Rationale: i. Uniformity: 1. Same substantive law should be applied in state and federal courts, so that cases will have same outcome regardless of where P opts to file suitprevent discrimination against state citizens 2. Prevent Forum shopping ii. Federalism: Federal government only has authority to rule on things dealing with the Constitution 1. Preserve distribution of power between federal and state government 2. State can make own laws iii. Separation of Powers: federal court cant make laws because this would infringe on rights of Congress to make laws. b. Substantive: Issue goes to an element of claim c. Procedure: Rules affecting the form and mode of administering a right or obligation c. How do you determine whether state law is SUBSTANTIVE?

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i. Hannas Modify Outcome Determinative Test : would application of federal std implicate twin aims of Erie? Its substantive b/c its outcome-determinative. i. Does application of federal std lead to forum shopping? ii. Does application of federal std create an unequal administration of justice? 1. Prevent substantial variations between state and federal litigations. 2. Reason: its unfair b/c in state citizens cant flock to federal court b/c this only applies to diversity cases. *If answer to both Qs NO, federal court apply federal rule in federal diversity cases d. Rule of Decision Act 28 USC 1652- laws of several states are rules of decision substantive laws: Requires Federal courts to apply laws of states, except where federal law preempted state law i. Swift v. Tyson: Interpreted RDA as only applying to state statutory law, but not to state common law. 1. Justice Story said there was a universal body of CL (fed), which could be seen from compilation of all decisions everywhere. a. Problem: Even after Swift, no uniform body of general lawState court judges didnt follow CL lead of federal judges. Because state court judges applied different CL standards, different outcomes for same case in federal and state courts based on substantive issue of law. b. Erie RR Co. v. Tompkins: ii. No federal common law (reject Swift) 1. Reason: violates constitutional right of states to have independent authority over legislative and judicial action of states. ii. Except where Constitution, treaties, or statutes of US apply, state substantive laws are rules of decision in federal district court, which sits in that state. iii. FACTS: D was walking on a commonly used path alongside tracks. D truck by an object from moving cars owned by D and injured. a. Outcome Determinative Test: if outcome of the case will differ based on application of state law v. federal practice, then state law will be applied, so as to ensure that there is same outcome in diversity cases as there would be if suit was tried in state court What law applies in Federal courts sitting in DIVERSITY?
Is there a federal rule on point?

YES- Rules Enabling Act prong under Hanna

NO- Rules of Decision Act prong under Erie

YES- Federal Rule applies

NO-State law applies

State law applies

C. TYPES OF CONFLICTS REQUIRING ERIE ANALYSIS i. Conflicts btw Federal Constitutional Provisions & State law a. Constitution Prevails: i. Reason: 1. Constitution Art. VI: Constitution is supreme law of land

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ii.

iii.

iv.

v.

2. RDA states that state law only prevail if not preempted by federal law, treaty, or Constitutional provision. Conflicts btw Federal Statute and State law a. Federal Statute prevails as long as it is valid i. Reason: federal statute is supreme law of land ii. Questions to Ask 1. Did Congress have authority to make federal law? a. Apply Hanna arguably procedural test. iii. 1404(a) SC upheld that federal transfer of venue statute is arguably procedural, since the issue is just which federal court should hear the case. Conflicts btw Federal Rule and State Law a. Federal Rule prevails if valid i. Reason: 1. Congress has authority to delegate authority to make federal rules under Necessary and Proper clause and creation of REA a. Virtually all Federal rules ok unless they enlarge, abridge, or modify a substantive right. Conflicts btw Federal Judicial Practice and State Law a. Apply Modified Outcome Determinative Test (Hanna): i. If at time client walks into office, there will be different outcome based on application of federal practice or state law, federal court required to apply state law ii. BUT, if federal practice is essential to essence of federal court, then federal practice may be used. Justified based on 1. Preventing forum shopping AND 2. Ensuring equitable administration of justice EXAMPLES a. Conflict Federal Rule that gives discretion/permits State rule that require Federal statute required unanimous verdicts State law provided for majority verdicts State law impairs operation of federal provision b. No Conflict Federal Rule broad State rule that has stringent, specific standard

VI. JOINDER AND SUPPLEMENTAL JURISDICTION A. JOINDER: addition of claims and parties. i. Advantages: a. Efficiency and economy by disposing of similar dispute together in one, single litigation b. Fairness by diminishing the risk that the absence of claims or parties could be used strategically to injure another party or defeat justice c. Contribute to public confidence in judicial system by avoiding inconsistent results from 2 lit. ii. Disadvantages: a. May deprive parties of their litigation strategy b. Lengthen litigation c. Add to expenses d. Introduce cluttering/ confuse factfinder. iii. 4 general Qs: a. what claims and parties can P include in lawsuit? b. What claims and parties can D insert into lawsuit? c. What claims by unjoined strangers can enter the lawsuit? d. What happens if a claim or party that shouldnt be in the lawsuit is added?

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B. CLAIM JOINDER: Rule 18. Party asserting claim may join as many claims of any kind as the party has against an opposing party. (even if unrelated) i. Rule 18(a): Once any claim (claim, counterclaim, crossclaim) is properly asserted, P (or any other claimant) can add to that claim any other claim, he has against that opposing party ii. ** Even if added claim is procedurally proper, it also needs to independently satisfy subject mater jurisdiction and venue. iii. Policy: cost; convenience; efficiency; bully other party into early settlement iv. PROCEDURE: If pass both reqs, then joinder proper. a. Is there rule permitting joinder of this claim against this party? Rule 18a (liberal) b. If so, does joinder claim fall within Federal SM jurisdiction? i. Fed Q (1331) ii. Diversity (1332) iii. If neither of abovesupplemental jurisdiction (1367) (ref. P13) 1. Under Gibbs 2. 1367 NOW (just do this one instead of Gibbs) c. Personal jurisdiction (parties) d. Venue (parties) C. CLAIM JOINDER BY D now D will sue someone, asserting a claim. i. Counterclaim Rule 13 asserted against opposing party a. Compulsory Counterclaims Rule 13a(1) arises from same T/O as Ps claim i. You must assert this claim in THIS CASE, or else, you WAIVE it ii. ONLY compulsory claim!! iii. If Suppl. Juris: Always meets 1367a but does it fall under exception of 1367b? iv. NOTE: since 13a1 is only required if defending party asserts a pleading, and since motion isnt a pleading, if D moves to dismiss, not required to assert compulsory counterclaim with it. Whether case gets dismissed or not, D can file counterclaim. v. Reason: 1. efficiency of judicial resources; dont want to litigate on same issue 2x 2. to have finality of judgment b. Permissive Counterclaim Rule 13b any counterclaim that isnt compulsory i. Does NOT arise from same T/O as Ps claim. ii. Dont have to assert it here. iii. Doesnt mean it would fail 1367a necessarily; theoretically, some room since common nucleus of operative fact deemed broader than 13a c. NOTE: if D wants to file 2 counterclaims, one related & another unrelated, may do so by: i. 13a and 13b OR 13a and 18a d. If Settle, can B bring another claim later on that he failed to bring compulsory counterclaim? i. If court takes view of preclusioncounterclaim not allowed- have to have filed counterclaim at time of its service ii. If court takes view of estoppel: since settled out of court and didnt go to final judgment, hadnt burdened court too much 1. On other hand, potentially unfair to P. But he could have asked for finality. e. If default judgment? i. Ds argument: never entered pleading so no counterclaim to leave things up. And no judicial resources spent. ii. Ps argument: bar compulsory counterclaim b/c go against finality of judgment and P should be able to rely on judgment. ii. Crossclaim Rule 13(g): Against a Co-Party a. Must arise from same T/O as underlying case b. Never compulsory iii. PROCEDURE: a. Rule permits joinder of claim?

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b. If so, does joinder claim fall within Federal SM jurisdiction? D. PARTY JOINDER: i. Party Joinder by PLAINTIFF: a. Other Plaintiffs: Rule 20(a)(1): Ps may join together in one action where they assert claims arising out of the same transaction/ occurrence AND involving common Q of law or fact b. Defendants: Rule 20(a)(2): if claims arise out of same transaction/occurrence and involves common Q of law or fact. c. 3rd party Defendant: Rule 13 (h)/ 14(b) d. NOTE: personal juris, subject matter juris, and venue must all be satisfied as well. ii. Party Joinder by DEFENDANT: a. Other Ds: Rule 20(a)(2): may be joined if arise out of same transaction, occurrence, or series of transactions AND common Q of law or fact. iii. PENDANT PARTIES JURISDICTION: nonfederal, nondiversity claim is against a 2nd party against whom no claim invoking fed juris asserted. Constitutional power if claim arose from common nucleus of operative fact. a. Fact pattern: A v. B1 on fed claim; A v. B2 on state claimif has suppl juris under1367, then joinder allowed. E. SUPPLEMENTAL JURISDICTION (ref. p12) i. Ct may permit assertion of claim under joinder rules even if not Fed Q ii. Allows Fed ct to hear claims that are so closely related to an underlying dispute that properly invoked fed juris as to be considered part of the same case or controversy as that dispute. F. MISJOINDER: Rule 21 not ground for dismissal. Ct may add/drop a party or severe a claim against a party. i. OR, Rule 42, court may order separate trial of separate claims a. Reason: convenience; avoid prejudice; expedite and economize. b. Since Rule 42 is easier than meeting Rule 20(a), might be safety valve for P who is denied joinder. G. IMPLEADER/ 3RD PARTY PRACTICE: rule 14(a) i. Defending party may, as a 3rd party P, sere a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. ii. Only permitted in Indemnity (if its my fault, its actually their fault) or contribution (its half their fault) iii. Note: FRCP very solicitive of Ps choice of venuewhich is policy behind this rule iv. Rationale: a. Want to preserve Ps autonomy in decision making process but let D bring another party if will be more efficient. b. Prevent inconsistent results VII. CLASS ACTION A. INTRODUCTION i. Definition: single person/ small group of co-parties may represent a bigger group (class) of ppl sharing common interest. Used where joinder of all potential co-parties not possible b/c (a) class too large or (b) difficulties of personal jurisdiction/venue/diversity. ii. Adv: judicial efficiency (not litigate 100 cases); members wouldnt be able to seek redress on their own (if poor individually or if claim too little for litigation); deter other corp from doing similarly illegal act; unfair to let corporation get away with bad act. iii. Disadv: a. Burden on court b. Might create litigation that otherwise wouldnt exist i. On the other hand, if consumers cant aggregate, retailer might do illegal stuff w/o punishment c. Abuse by P: even weak substantial claim may lead to costly settlements d. Abuse by D: ethical problem- lawyer ma ybe motivated to settle for own self interest

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e. Lawyer abuse: reverse auction: pick ineffectual lawyers to negotiate settlement hoping that district ct will approve a weak settlement that will prevent D from being litigated for other claims. B. Constitutionality i. STATE: a. State courts free to provide for class action in any way they see fit. b. Is binding absent class members in a class action constitutional? i. Absent members- no opp to be heard; in many cases, no notice; not hire lawyer ii. Hansberry v. Lee: 1. Facts: racially restrict covenant signed by owners. One owner rents to black guy. Find out some owners didnt sign (so not agree to covenant). 2. Held that DUE PROCESS (14th A) require for members of class to represent nonparties in class action, members of class in litigation and those absent members must all have sole & common interest of class in litigation. a. So reps of class cant represent others whose interest may be in the alternative. 3. Notice? Doesnt address notice. Assumes if rep representing common interest of nonparties, then notice given to nonparties by their rel. w/ reps. ii. FEDERAL: Rule 23 a. **KEEP IN MIND PURPOSE of each reqs (i.e. efficiency) b. Rule 23(a) before any case proceeds in class action, must satify 4 reqs. AIMED AT 2 factors: impracticality of joining all interested members & adequacy of representation 1. Numerosity: no magic number 1. Geographic dispersion of class members taken into acct as well as #. 2. Commonality: question of law/fact common to class (focus on facts of case) 1. i.e. does state law segregating schools violate equal protection clausesocial desegregation 2. *usually met since nature of clas actions would assume this req. 3. WRINKLE: difficulty arise under Rule 23b3, where common Qs must predominate. a. i.e. Walmart: not fufillfed b/c Ps suffered violation in diff ways. Cant show that local managers discriminated against women on all claims. b. On other hand, commonality doesnt require Q of law to predominate. Discretionary policies were discriminatory-common Q 3. typicality: focus on whether representatives claim or defense is typical of that of rest of class 1. Not fulfilled if rep suffered unique harm from rest of class members. 2. If claim that drug from pharmaceutical company caused physical and emotional harm: a. representative must have also suffered both physical and emotional harm OR b. have two representatives, one of which suffered physical harm and the other emotional harm. 4. adequacy of representation: representative parties will fairly and adequately protect interests of the class 1. Purpose: ensure lawyer competent & properly motivated to protect interest of class. 2. when is representative inadequate? a. If conflict of interest: i. Hansberry: representative had conflict of interest of some class members.

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b. If class representative illiterate? No transportation? If class rep inadequate to pursue interest of other class members 5. Also, Rule23g4 Duty of class counsel: adequacy of class counsel c. Rule23(b) Types of Class Actions: fulfill at least one of three 1. 23(b)(1) Prejudice Rule: members may not opt out and necessarily bound by disposition. 1. 23(b)(1)(A) incompatible standard class: a. separate actions would lead to inconsistent results that would create incompatible stds of conduct b. usually involve claims for equitable relief like injunction or declaratory judgment. c. Where joinder through interpleader is impracticable d. NOT met in cases seeking damages. 2. 23(b)(1)(B) limited fund class: impairment of interests of class members who are nonparties to individual actions. a. Involve claims to limited fund. As in, some will recover, while others, winning their judgment later, may have no fund to recover. 2. 23(b)(2): injunctive relief class rule: may not opt out. 1. Usually equitable reliefi.e. desegregating schools; employment discrim 2. NOT permitted if money damages is the primary or exclusive relief sought. a. Reason: absent class members wouldnt be entitled to notice/opt out and cant relitigate since member of class. 3. Permit only damages that flow naturally from act giving rise to equitable relief. 4. i.e. equitable relief= promotion; damages= lost wages while not promoted. 5. Example #2: Walmart: may bifurcate case btw women who still work vs. women who arent Rule 23(c)(5) subclasses class may be divided into subclasses that are each treated as a class 3. 23(b)(3): Damages Class Rule: can opt out. Used for mass torts damages. Show that class action makes sense in partys case. Disfavored. 1. common question of law or fact of class members must predominate over any questions affecting only individual members a. predominate: Was D at fault for same issue/common fact? 2. AND class action superior to other available methods for fairly and efficiently adjudicating controversy. a. Superior i. Class members interests in individually controlling the prosecution/ defense of separate actions; ii. Extent & nature of any litigation concerning the controversy already begun by or against class members; iii. Desirability or undesirability of concentrating the litigation of the claims in the particular forum; and iv. Likely difficulties in managing a class action. 3. POLICY: maximizing efficiency * 4. Example: if business and individuals in class action? NO. Business has diff Q of law from individuals. Harm for business(econ) diff from that of indiv (personal injuries). Even among indiv, diff injuries? a. Solution: court can bifurcate cases. Diff trials for each individuals how much damages each indiv entitled to. d. Rule 23(c)(2) Notice and Opt-Out provisions 1. 23c2A: For (b)(1) or (b)(2) classes: opt out not allowed: court may direct appropriate notice to the class.

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1. Reason: a. For (A), allowing opt out would destroy purpose b. For (B), class member can only benefit from injunctive relief, so no reason for them to want to opt out. 2. 23c2B: For (b)(3) classes: court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort 1. 1st opp to opt out: when informed of pendency of action Rule 23c 2. 2nd opp to opt out: Ct may mandate opt-out opp at time of settlement/dismissal/compromise e. Active role for the judge Rule 23e: certifying class (whereas in other cases Ps decide how many ppl to add as Ps/Ds), determine class counsel, permission for settlement, control fees of class counsel 1. During hearing: Only approve settlement if its fair, adequate and reasonable 2. If case settled, court must direct notice to all class members. 3. Court may approve proposal only after fairness hearingso its fair 2. PROCESS: a. File complaint: notes that rep sues on behalf of class of persons similarly situated. b. Arrange service of process c. After filing putative class action, rep makes motion for class certification Rule 23c1A 1. Timing: early practicable time. Doesnt mean immediately. 2. Usually permit written briefs and oral argument on issue. 3. Reqs of certification 1. Class must satisfy each of prereqs in Rule 23(a); AND 2. Rep must show that her class falls within one of 3 types of class actions under Rule 23(b) d. Discovery- whether case should proceed as class actoin e. After hearing, class reps have burden of establishing that action satisfies req for class treatment. f. Once certification GRANTED, Rule 23c1B, requires it to define class and class claims/issues/defenses 1. Forces court to be precise early in proceedings 2. Court must appoint class counsel (Rule 23g) 3. Note: If court certifies class action, ds incentive to settle increase by a lot. g. Rule 23c1C: order of certification may be amended/altered before final judgment 1. Continuous duty of court to monitor class action. h. If certification DENIED, reps individual suit stays before court (may proceed but lawyers incentive may lessen if case involves monetarily insig claim) VIII. PLEADINGS A. PLEADINGS i. Definition: Documents filed by litigants setting forth their claims and defense. a. **Motions, briefs & legal memoranda are NOT pleadings ii. Format: a. Complaint: P initiates suit by filing complaint b. Service of Process c. Ds response to complaint i. Answer: file own pleading in which D responds to allegations in complaint and may raise affirmative defenses ii. Motion iii. Purpose:

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iv.

a. Notice: provide parties involved with notice of consent of suit and basic allegations/defenses b. State facts each parties believe it can prove c. Narrow scope of issues to be determined at trial d. Gate keeping function: quick method of resolving meritless cases. Types of Pleading: a. CL pleading: traditional form of pleading. Required a lot of detail and required to file the appropriate writ for every case i. Problems: 1. Unlimited pleading but no discovery-- Inefficient; 2. hurt P/help lawyer 3. high barrier to courtIf P cant prove particular writ, case thrown out b. Code Pleading: More specificity required than federal rules pleading. Less emphasis on gate keeping function of getting rid of cases and more emphasis on giving notice. i. CA and NY ii. Discovery to look at facts iii. Limited # of pleadings iv. Problem: 1. Stiffer formula: cant be too specific in facts (if so, thrown out for pleading in evidence) and if too general (thrown out for pleading the conclusion) c. Federal Rules Pleading/ Notice pleading: governed by FRCP i. Most states have adopted similar form of pleading or this ii. Less specificity/facts required than code pleading. iii. Require only short and plain statement of claim showing that P entitled to relief Rule 8(a)(2) iv. If less pressure at pleading state to narrow scope of issue at trial, defer to discovery v. Courts more forgiving if details missingmay be filed later as long as suit/allegation not frivolous.

B. COMPLAINT a. Plaintiffs pleading: lays out Plaintiffs allegation. Put D on notice of claim being made againsti t and grounds for Ps entitlement to relief. Deals NOT with whether P would win on merits. Deals with whether if all allegations are true, would P be entitled to relief? a. FORM: Rule 10 i. (a) caption: courts name, title, file #, names of parties 1. As soon as you file, you get file # ii. (b) separate statements: paragraphs have to be numbered 1. separate counts for different claims, even if transactionally related Ex. 2 counts if car wreckpersonal injuries and property damage to car. iii. (c) adopt by reference b. GENERAL RULES: i. Rule 8(a): Refer to subject matter jurisdiction (not venue or personal jurisdiction) Complaint requires 3 things. If one missing, case dismissed. Sometimes P allowed to amend 1. (1) Short and plain statement of grounds upon which courts jurisdiction depends a. for diversity, as long as complaint indicates complete diversity of citizenship among parties and amount-in controversy req, satisfied b. for fed Q, allege that case arises out of a particular fed statute, Constitution or a treaty. 2. (2) Short and plaint statements of claim showing that pleader is entitled to relief a. So dont need to state facts sufficient to constitute a cause of action, so avoid facts altogether! (Dioguardi v. Durning)

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b. CONTRAST: Code Pleading: A statement of facts constituting a cause of action, in ordinary and concise language, without repetition. 3. (3) demand for judgment for relief the pleader seeks a. What P wants D to do and want P wants (injunctive relief/damages) b. Form 3 provides an example of entire demand for relief. c. Damages may be pleaded as a lump sum or divided out into special damages d. Unlike Rule 54(c) and many state provisions, demand doesnt limit Ps recovery. Entitled to recover whatever relief she proves at trial, even if thats more $ than she asked for, and even if its of a different type than she requested. e. If not damages, can seek equitable relief, such as injunction, specific performance, or declaratory judgment. ii. Rule 8(d)(3): As long as he does so in good faith, pleader may state as many separate claims (which may contradict) as he wants to iii. EXCEPTIONS to Rule 8: (Rule 9) c. Legal Sufficiency of a Pleading: (Federal rules ref. Rule 8a2) i. If on face of complaint, the allegations couldnt support a judgment for P, case can be dismissed at outset, without the wasted effort and expense of discovery and trial. 1. CL and Code Pleading: D tested legal sufficiency of complaint by filing general demurrer to complaint 2. Federal Rule Pleading: No demurrer but same function served by motion to dismiss for failure to state a claim under Rule 12(b)(6) 3. Sometimes court gives with leave to amend (dismissal without prejudice) allowing P to draft legally sufficient complaint 4. Dismissal with prejudice- final judgment ii. Any pleading or practice which prejudices the other side will be dismissed on account of prejudice 1. Prejudice: When one litigant disadvantages the other, for reasons having nothing to do with merits of their respective cases 2. Conley v. Gibson: no set of facts test--- replaced by Twiqbal inquiry a. Complaint can be dismissed unless it appears beyond a doubt that P can prove no set of fact in support of his claim which would entitle him to relief b. Have to give enough facts so that D has fair notice of what Ps claim is and the ground upon which it rests c. Lenient Standard: too lenient so that court could rarely dismiss case for failing to provide sufficient facts to allege claim as long as any set of facts could be alleged as having caused the injury. i. Problem: flood of frivolous cases; expensive because more cases go to discovery d. Rationale: permit people access to justice without lawyer ii. Twombly & Iqbals two-prong inquiry 1. All allegations except legal conclusions are accepted as true a. Twombly (301): formulaic recitation of elements 2. Complaint state plausible claim to satisfy requirements of Rule 8(a)(2)/ that they will be able to prove facts to suppor their claims a. Plausibility: sufficiently specific to smoke out other explanations that are equally consistent with facts; possible insufficient. i. Twombly: even if it strikes savvy judge actual proof of these facts improbable, cant reject b/c recovery unlikely ii. Iqbal(43): determined by court drawing on judicial experience and common sense

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1. cant reject b/c unreasonable/fanciful. 2. Court must draw on common sense and judicial experiences 3. Facts consistent theory not sufficiently plausible a. i.e. the fact that a lot of those rounded up were Arab Muslims and consistent with Ps theory of discrimination insufficient b/c didnt eliminate possibility that these men were rounded up for nondiscriminatory reason. 3. Bell Atlantic Corporation v. Twombly: a. FACTS: P sought remedies for violation of Sherman Antitrust Act. Alleged that ILECs conspired to engaged in parallel conduct so that they inhibited growth of smaller companies and didnt compete against one another. b. Conscious parallelism (Ds aware of each others actions and modify actions themselves) admitted as circumstantial evidence but insufficient by itself to prove Sherman Act without plus factor that excludes independent self-interested conduct as an explanation of Ds parallel behavior, rather than conspiracy. c. Plausibility? Since facts alleged can support two conclusionsillegal agreement or parallelism for their own economic interest-- complaint doesnt contain facts to suggest plausible suggestion of conspiracy. 4. Ashcroft v. Iqbal: Sep 11/ High ranking officials: Dont want to deter them from doing a good job for the government. b. Rule 9(b) and (g): special pleading: require greater detail i. 9(b): allegations of fraud or mistake must be made with particularity 1. dates, what he said; cant just say he defrauded me ii. 9(g): items of special damage must be pleaded with specificity (detail, special damage, sth you dont expect) C. DEFENDENTS OPTIONS IN RESPONSE: Either file motion or answer (responsive pleadings) i. Motion: Request that court order something, such as dismissal of case; NOT a pleading a. Rule 12(b) Defenses: Ref. Chart below for list. (also can be field as affirmative defense in ANSWER) b. Rule 12(b)(6): Motion to dismiss for failure to state a claim upon which relief can be granted before answer. i. Test legal sufficiency- if all facts true, does it allege legal wrong? 1. i.e. Twombly- they declined to compete with each other- even if true, cant win b/c doesnt show plausibility of evidence to prove facts. ii. Test factual sufficiency- hast P set forth facts in sufficient detail? 1. i.e. you wronged me- insufficient b/c no date, no time c. Motion for Summary Judgment: Rule 56 i. If facts undisputed and D entitled to judgment as matter of law ii. Ex. Statute of limitations has run. d. Motions for relief other than dismissal i. Rule 12(e): seek more definite statement ii. Rule 12(f): move to strike sth that doesnt belong in pleading e. WAIVER: Rule 12g and h imposes strict rules about WAIVER: i. Rule 12h(1) Waivable defenses: Rule 12 b2-5: when file motion or response, have to fille all of these motions- cant file motion separately or else, WAIVER. ii. Rule 12h(2) says: Rule 12b6,7: can be raised for their first time any time through trial but no later than trial. Preserved even if you filed earlier motion b2-5

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ii.

iii. Rule 12h(3): Rule 12b1: can be raised any time in case. NEVER WAIVE SMJ, even if for first time on appeal. REASON: b/c built into Constitution; protect division of fed/state cts b/c its not sth a party can waive. f. Court has inherent power to entertained such motion at any time despite the provision that D should make motion to strike before responding to pleading. Answer: pleading that responds to allegations or complaint and may add new matter a. Time to serve answer: Rule 12 (a)(1)(A): Must be filed within 21 days of receipt of complaint b. Joined: All of Ps allegations the D denies are said to be joined, meaning that they are contested and its up to court to determine outcome c. Admit: Rule 8(b):there may be some allegations within a complaint that D will not dispute. Admission serves to establish undisputed facts on which there need not be a trial d. Deny: Rule 8(b) Reacting to what P alleged. i. General denial: when D denies all of Ps allegations in good faith, acceptable under FRCP and code pleading ii. Specific Denial: when D denies specific portions of complaint 1. Better than general denial b/c if general denial is made against a set of allegations and part of those allegations are determined to be clearly true and not capable of being denied, general denial will be ineffective. iii. Qualified general denial D admits allegations of Para 5 and denies each and every other allegation of complaint iv. PROBLEMS: 1. Rule 8(b)(2): Denial must fairly respond to substance of allegation- otherwise, allegations deemed true. 2. Denial cant include new information into pleading 3. Negative Pregnant: Denial cant be too literal. May lead to admission that D did act in some other time, or in some other place. v. Failure to deny results in admission. Rule 8(a)96) e. Lack of sufficient info to admit/deny: Rule 8(b)(5) i. Doing so had effect of denial ii. Cant be used if D had reasonable access to info or if its a matter of public record/ general knowledge. f. Affirmative Defenses Rule 8(c)(1) D raising new fact and if right, D wins. i. Burden on D 1. Policy reason: too much burden on P if P had to produce evidence to discount affirmative defenses as well. ii. Other defenses included in Rule 12(b) iii. Failure to plead affirmative defense? Can result in D being barred from introducing evidence on those defenses or waiver of those defenses. 1. Rationale: D shouldnt be able to ambush P with defensive arguments that arent the natural outgrowth of Ps claim. If P isnt notified of Ds defenses, P wont be prepared to address those defenses. g. Rule 8(b): P may state she is without knowledge or info sufficient to form a belief as to the truth of averment- amounts to denial h. Waiver: Rule 12 i. Rule 12(h)(1) One bite out of apple: When file motion or response, have to file all motions (Rule 12(b)(2)-(5))- Cant file motion separately 1. If filed motions separately (Rule 12(b)(2)-(5)), affirmative defense waived. ii. Rule 12(h)(2): Not waived. Preserved even if you filed motion 12(b)(2)-(5) earlier. Unlike motion for summary judgment, preserved just until closing of trial. iii. Rule 12(h)(3): Never waive subject matter jurisdiction (Rule 12(b)(1)) 1. Because built into Constitution and purpose to protect division of federal and state courtsnot something party can waive iv. Consider Purposes of Rule 12(b) to understand why some are waivable

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1. Rule 12(b)(3): convenience of P 2. Rule 12(b)(6): Find more information about whats going on at trial. Point to save resourcesneed to preserve this mechanism to save resources. Not about convenience of party (which is easier to waive); efficiency of resources harder to waive.

Rule 12(b) Defenses (1) subject matter jurisdiction (2) personal jurisdiction (3) venue (4)insufficient process

(5)insufficient service of process (6) failure to state a claim upon which relief can be granted (7)failure to join party under Rule 19 iii.

28 USC 1331, 1332, and 1367 Rule 4(k) and Due Process Clause 1391 Form of summons rather than manner r method of service (i.e. summons didnt have signature)RARE Manner or method of service Govern by Twiqbal which interprets Rule 8 Rule 19

Claims by Defendant: (i.e. counterclaim, crossclaim) can also assert claims against other parties a. Principal claims by defending party are counterclaim (against opposing party) and cross-claim (against co-party) b. Counterclaim: Rule 13: If D has a claim it asserts against P i. If D raises counterclaims in its answer, P entitled to reply to respond to them. ii. Compulsory counterclaim: Rule 13aclaim that a defending party must assert that arises out of the same transaction or occurrence that is the subject matter of the opposing partys claim. 1. If defending party doesnt assert it, he waives the right to assert that claim against opposing party in the future and barred from asserting it in subsequent action. 2. Supplemental jurisdiction: since compulsory counterclaim arises out of same transaction/occurrence as claim asserted by opposing party, there will generally be supplemental jurisdiction over such claims in the even that they lack an independent basis for federal jurisdiction, provided the 1367(b) doesnt deny supplemental jurisdiction under the circumstances. 3. arise out of same transaction/occurrence: a. Tess is logical relationship: claims that are logically related to one another. i. When claims are offshoots of the same basic controversy btw the parties or otherwise related in such a way that separate trials on each of claims would involve substantial duplication of effort and time by the parties and courts or the presentation of similar evidence. 1. Policy reason: efficient use of judicial resources, minimize burden imposed on litigants, and avoid unnecessary impositions on testifying witnesses. iii. Permissive counterclaim: Rule 13bclaims a defending party has against an opponent that do NOT arise out of the same transaction or occurrence. May be raised by party but need not be. 1. Supplemental jurisdiction? Less likely

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iv.

a. Possible for claims not arising out of same transaction and occurrence to satisfy the common nucleus of operative fact std of supplemental juris. iv. NOTE: it must independently satisfy jurisdictional and venue req. c. Crossclaim: Rule 13g claim brought by one co-party against another co-party. PERMISSIVE i. Requirement: must arise out of the same transaction and occurrence that is the subject matter of the original action or of a counterclaim that ahs been asserted ii. May also assert contingent or derivative claims for liability on claims against the crossclaimant. iii. Supplemental jurisdiction: may also generally satisfy this. Failure to Respond: a. Default (Rule 55): Ministerial notation on court docket sheet that D failed to plead or respond in time. P cant get money or other relief based on default. b. Default Judgment: P can get this. i. Clash of policies: we dont want to subject worthy P to delay but also prefer to decide cases on merits rather than on technicalities. c. Notes:
If default judgment has been entered already? Rule 60(b) set aside final judgment, order, or proceeding if excusable neglect Most courts do not set aside for lawyers unexcused negligence. Some courts may set aside if D shows that lawyer was guilty of gross negligence or egregious behavior- i.e. repeatedly ignoring court orders while assuring D that case is going well.

If P hasnt entered default yet? Can make motion for enlargement of time under Rule 6(b).

Before Default Judgment


If default had been entered but default judgment hasnt, Rule 55(c) may set aside judgment if have good cause (excusable negligence)

Before Default

After Default Judgment


d. Policy Reason for having Strict Default rules: i. Efficiency: P shouldnt have to wait forever if D never shows up. D. TRUTH IN PLEADING i. Rule 11 Motion a. Lawyers duties: Attorneys have a duty to fully investigate the legitimacy of a claim before filing/signing the pleading i. Has ongoing obligation to try to get rid of frivolous claims 1. Reason: dont want to waste money ii. Has ongoing obligation to correct errors Rule 11(b) b/c lawyers has to advocate that position later iii. Signature: lawyer must sign all pleading, written motion, and other paper Rule 11(a)

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ii.

1. Not included: Rule 11(d): disclosures, discovery requests, objections, and motions under Rule 26-37 iv. Certification to the court that to the best of signers knowledge, info, and beliefformed after a reasonable inquiry: 1. Rule 11(b)(1)Counsel is representing that the filing isnt being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in cost of litigation 2. Rule 11(b)(2) Representing that the legal contentions contained in the filing are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law 3. Rule 11(b)(3) Factual contentions have/ will likely have evidentiary support after a reasonable opp for further investigation or discovery; and 4. Rule 11(b)(4) denials of factual contentions if based on evidence or are reasonably based on belief or lack of info. b. Only governs pleadings and inappropriately pleaded documents c. If certification violated: i. Sanctions ii. Sua sponte motion: court may order attorney or party to justify its behavior. 1. Occur before any voluntary dismissal or settlement with violator Rule 11c3; 11c5B iii. Motion by Party: 1. Rule 11c2: A party may seek sanctions by motion if a. Motion is made separately from any other motion b. Describes the specific violate conduct c. Is served on the other party 2. Safe Harbor provision: BUT, this motion may not be filed with the court unless, within 21 days after service (or other time ordered by court), the challenged paper isnt withdrawn or corrected. a. Rationale: gives litigants opportunity to withdraw improper filings before being subjected to sanctions. b. Policy: reduce # of sanctions motions filed in courts. c. If D failed to assert d. WAIVE: Rector v. Approved: D filed motion to sanction. But P needs to file a motion asserting the provision as a defense, to argue that D had not gotten service to have 21 days to correct. If hadnt filed a motion asserting the provision as a defense, defense is waived. iv. Sanctions on attorney, law firm, or party responsible for violation Rule 11c1 1. Sanctions limited to what is necessary to deter the violator and comparable conduct Rule 11c4 2. May be nonmonetary directives, penalties paid into court, or reimbursement to the victim Rule 11c4 3. Absent exceptional circumstances, law firms must be held jointly responsible for acts committed by partners, associates, or employees Rule 11c1 4. Client arent responsible for violations involving legal contentions Rule 11c5A. a. So violation of Rule 11(b)(2) is a lawyers responsibility and client not imposed with monetary sanction. 5. LIMIT on sanctions: what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated; not punishment or compensation. Other Grounds for Attorney Discipline a. Rules of Professional Responsibility: i. Each states has one ii. More strict than Rule 11

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b. 28 USC 1927: any lawyer in federal ct who multiplies the proceeding in any case unreasonably and vexatiously may be required by court to satisfy personally costs reasonably incurred b/c of such conduct. i. Applies to all proceedings in any fed ct ii. Applies only to attorneys, not parties or pro se litigants (self) iii. Sanction frivolous appeals c. Ct has inherent power to sanction bad faith conduct by litigants or counsel; if no statute/rule E. AMENDED PLEADING- Rule 15 Any change to any part of a pleading (i.e. complaint, answer, reply) and can pertain to legal issues or factual matters. Court favor granting amendment in order to resolve disputes on the merits. However, courts have not allowed amendment if: o undue prejudice- delay, loss of evidence cost. i.e go almost to the end of trial onlsy to add more stuff- to add to cost of other party and force them to settle or give up. o Repeated failure to amend, when it was previously allowed o Amendment would be futile- i.e. if legally insufficient claim (added claim fails to state claim upon which relief could be granted) Reason: court doesnt want to waste resources Amend pleadings before trial: i. Rule 15(a)(1): Party may amend its pleading once as a matter of course (meaning without having to make a motion and have it granted by judge) a. within 21 days of serving pleading b. if responsive pleading is required: i. amendment must be made within 21 days after service of responsive pleading or 21 days after service of a pre-answer motion under Rule 12(b),(e) or (f), whichever is earlier. ii. Rule 15(a)(2): In all other cases, by either opposing partys written consent or if justice so requires, by courts leave a. Time limit? No time limit but the longer one waits, the more likely that the other side can seek prejudice b. Factors for courts leave: i. Amendment futile? If legally insufficient claim ii. Undue prejudice to adverse party? Intentional delay, bad faith, loss of evidence, cost iii. Rule 15(a)(3): any required response to an amended pleading must be made within the time remaining to respond to original pleading or within 14 days after service of the amended pleading, whichever is later. Amend Pleadings during or after trial: iv. Problem of Variance: Rule 15(b). Amendment of pleadings must conform to evidence presented at trial. a. Variance: Presentation of evidence on a point not covered in pleading i. Different claim or ii. Different theoretical basis of claim already asserted b. Rule 15(b)(1): addresses variance to which a party objects at trial i. Court may bar amendment if it doesnt present merits and may prejudice opposing partys action on the merits ii. Court may grant continuance for P to meet the evidence. c. Rule 15(b)(2): addresses variance to which no objection is made. i. Permits D to overcome the general rule that affirmative defense not pleaded are waived ii. Court held that jury should consider defense claim, which, while not pleaded, was tried by implied consent iii. The issue to which no objection made is assumed to be an issue and litigate it fully even though it wasnt in the complaint and treat as though it was pleaded.

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d. Almost all motions for amendment to conform to evidence will be made in trial court. When can partys amendment related back to the date of the original pleading? v. Statute of Limitations: Rule 15(c) a. Liberal policy of amendment provisions may clash with policies underlying other rules, like statute of limitations. Goals of statute of limitations may be undermined if P permitted to amend her complaint to add a new claim after statute of limitations would have run. i. Goals of statute of limitations 1. Ensure that case proceeds while events relatively fresh in minds of witnesses 2. Policy of repose: after passage of certain period, D should be assured that she wont be sued for an act/omission b. Relation Back- Rule 15(c)(1)(b): Amendments will related back only if they only flesh out factual details, change the legal theory, or add another claim arising out of same transaction, occurrence, or conduct. So if amendment based on entirely different facts, transactions, and occurrences, relation back denied. i. Once notified of pending litigation over particular conduct/transaction, D has been given all notice required for purposes of statute of limitations. 1. So if amended new claims arise out of general fact situation of the original complaint, relation back doesnt offend notice policy underlying statute of limitations & doesnt need to find new witnesses/ evidence. ii. Marsh v. Coleman Company: 1. Facts: P filed suit, alleging breach of contract and age discrimination. He amended to add claim for fraud after statute of limitations had run out. P argued that fraud claim can take advantage of relation back. Court said fraud claim doesnt relate back to filing of original complaint and is barred by statute of limitations. Fraud claim: fact from 1984/85, original complaint: factual allegations occurring 3 years after that. No relation back. c. NOTE: be aware of potential ERIE qs that could appear in context of a relation-back Q; i. If state statute of limitation provision applies, then Rule15c1 ii. If federal stds apply, then Rule15c2 and 15c3 governs relation back of amendment. vi. Amendment Changing a Party a. Problem: when amendment adds new party after statute of limitations has run b. Solution: Rule 15(C) is narrowused only when wrong party joined before statute of limitations runs but right party knows about the case and that it should have been involved: i. If D charged with notice of suit within a time period; and ii. But for mistake concerning proper partys identity, action would have been brought against it. Supplemental Pleadings: additional claims being asserted vii. Rule 15(d) a. Set forth events occurring after pleading filed b. Allowed only with court permission IX. DISCOVERY A. INTRODUCTION a. Purposes: i. Preservation of evidence that might otherwise be lost before trial ii. Provide mechanisms for narrowing the issues in dispute btw parties iii. Parties to acquire greater info about their own and other sides case. b. Types of Info: i. Parties to learn, well in advance of trial, what evidence the other side has in support of its claims or defenses 1. Reason: eliminate element of surprise so trial produces a more just result, rather than on lawyer skill/wits; quicker and fairer settlement of disputes

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2. Criticism: allow parties to acquire info for purpose of strengthening their own offensesviolate 5th amendment, which protects crim Ds from selfincrimination? c. Criticism of discovery: i. Expensive and time consuming ii. Some may use it as a weapon rather than info gathering mechanismd. Advantages of discovery: i. Trials may be shorter and less confusing for the factfinder. ii. Honing of issues may permit court to dispose of issues through the device of summary judgment. B. DISCOVERY DEVICES: material discoverable as long as it appears reasonably calculated to lead to discovery of admissible evidence. a. INITIAL DISCLOSURES: Rule 26(a) Requires each party to disclose, at beginning of discovery without awaiting discovery request, i. Includes information on: 1. Who has discoverable material 2. Description of docs likely to be used to support a partys case 3. Computation of damages and any docs on which such computation is based 4. Copy of any insurance agreement that would be available to satisfy part or all of a judgment in the case. ii. LIMIT: 1. only info that disclosing party may use to support its claims or defenses 2. disclose only info that was then reasonably available to it iii. Unreasonable Excuses: 1. A party not excused from making its disclosure b/c it hasnt fully investigated the case or b/c it challenges sufficiency of another partys disclosures or b/c another party hasnt made its disclosures. b. DEPOSITIONS: Rule 30 on Witnesses i. Oral or writtentaking testimony of witnesses prior to trial to obtain discoverable info through testimony. ii. LIMIT: presumptive limit of 10 depositions per side. One day of 7hr per deposition. 1. Work-Produce Doctrine: Cant despot other sides attorney Rule 26b3 a. Protect materials collected by counsel in course of prep for possible litigation in the course of his legal duties. iii. Alternative method: Rule 31 permits party to serve on the other parties a set of Qs that will be asked a witness 1. Adv: lawyer need not attend deposition 2. Disadv: witness knows Q beforehand and no opp for followup Qs. iv. No show: 1. Party- may be sanctioned rule 31(g), 37(d). Recover reasonable expenses. 2. Nonparty/witness- serve with subpoena issued by court clerk. c. INTERROGATORIES: Rule 33 i. Questions posed by one party to another in order to elicit informative responses. ii. LIMIT: no more than 25 per party. 1. Only required to provide facts that are reasonably available to them iii. Use: objective infomay pave way for other discovery by identifying ppl with whom it may be appropriate to depose, dates, lists of docs OR clarify allegations set forth in pleadings. d. DOCUMENT REQUESTS: Rule 34 i. Compel production of certain documents that pertain to area of interest

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ii. Non-party: Rule 34(c) may be asked to produce too through a subpoena Rule 45 (court could get authority over them) e. PHYSICAL AND MENTAL EXAMINATIONS: Rule 35 i. If partys physical or mental health is in controversy. ii. Requires: 1. Court Order: which is appropriate when a. Movant show Good Cause; and b. That the mental or physical condition is IN CONTROVERSY f. ADMISSION: Rule 36 i. Statements served on another party (not nonparty) with request that the statements be specifically admitted or denied. ii. Any admissions from this process will be conclusive evidence at trial with regard to those matter admitted. iii. Use: determine what issues are and arent in dispute iv. Policy: conserve resources. d. Sanctions: i. Rule 11(b) and (d) only require you to sign things presented to court. So not relevant to discovered facts ii. Rule 26(g) require attorney to sign all docs related to discoveries. 1. Mandatory sanctions for violation of 26(g): if receive device that embarrasses, annoys, harass, can OBJECT a. Each device has subsections on how to object OR can file for protective order of Rule 26 or 26(g) sanctions. iii. No show Rule 37(d) if sent notice but other party didnt show up. Can move immediately for sanction. 1. Available sanctions are Rule 36(b)(2)(A)(i)-(vi) 2. In addition/ instead of that, party and/or attorney must pay reasonable expenses such as attorneys fees iv. Refusal to answer Q Rule 37(a) and (b) C. FAILURE TO COMPLY a. If party refuses to comply with discovery request of another, requesting party may confer with disclosing party to try to work out agreement regarding discovery request. i. If no resolution reached during conference, disgruntled party may approach court seeking an order resolving dispute in their favor. ii. Rule 37A- Motion to compel If disgruntled party is the party seeking info, they can seek a motion to compel from the court, which if granted would order disclosing party to disclose info, over their objection 1. If still refuse to make disclosure, Rule 37b says court can take further actiondismiss, default judgment, big sanctions. iii. If disgruntled party is the disclosing party, party can seek protective order, where by court orders that info is protected from discovery and need not be disclosed, or orders that material will be disclosed but in limited or protected way that addressed disclosing partys concerns. Rule 26(c) 1. Protective order: to protect party from annoyance, embarrassment, oppression, undue burden or expense b. Failure to comply with supplementing: All parties have duty to supplement their production continuously if info becomes incomplete due to new info or if disclosed info is discovered to be incorrect in some respect i. Failure results in sanctions under Rule 26(g): 1. Violations are punishable by sanctions including paying the adversaries costs arising out of violation.

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D. PRIVILEGED MATERIALS: certain materials protected from discovery notwithstanding its relevance to one of the claims/ defense made by a party to the action a. i.e. attorney-client; doctor-patient; clergy-worshipper; spouses b. Policy: extend privilege to certain communications in order to promote free communications in the context of important social and legal relationships; free communications deemed to be a superior societal interest than the ability to have such info available as evidence in litigation. c. WAIVED: if disclosed by 3rd parties d. If disclosed by accident, Rule 26(b)(5)(b), the unintended recipient has to destroy or return it. e. Attorney-Client Privilege: (not even junior attorney) i. 3 reqs or privilege: 1. only extends to communications like phone call, memo, communicated in meeting 2. confidential 3. communications about legal services/ advice ii. How much detail? Rule 26(b)(5)(a)(2) Sufficiently detailed. f. If not fall under privileged material but a party does not want to disclose sth that is sufficiently intrusive, embarrassing, can get protective order Rule 26c E. EXPERT: Rule 704 of Federal Rules of Evidence a. Witness qualified as expert by knowledge, skill, exp may testify at trial or just to consult. b. DISCLOSURE: FRCP 26 (a)(1)(a)(i) and 26(a)(2) parties must disclose experts as a witness c. WRITTEN REPORT: FRCP 26(a)(1)(B) expert must draft written report and submit. d. Testifying expert: Rule 26(b)(4)(a) deposition of expertsfact discoveries first before you start expert discovery. e. Nontestifying expert: Rule 26(b)(4)(b) cant be deposed except for exceptional circum F. PROCESS: a. Judge will almost immediately schedule Conference Rule 26(f) b. Parties meet and confer at least 21 days before a scheduled conference i. Talk about game plan for litigation- settlement, what they want to discovery and how they plan to get it 1. Facilitate settlement (reflects concern about crowded court docket) ii. Within 14 days of this, have to send written report outlining the plan to court iii. After court gets this written order magistrate enters a scheduling order 1. Scheduling order: blueprint for prelitigation as a whole, deter c. Pre trial Conference Rule 16 Ct can hold as many as it sees fit d. Initial Disclosures Rule 25(a)(1) i. Due within 14 days after parties Rule 26(f) conference e. Discovery devices: doesnt matter with sequence. But should have interrogatory and production of doc before depositions, just to make sure you have all info f. Pretrial Disclosures: Rule 26(a)(3) required to disclose names of witnesses expected to be called at trial or whose depositions will be used at trial, and a list of docs and exhibits expected to be offered into evidence. i. Within 30 days prior to trial g. Final pretrial conference: i. Time: held as close to the start of trial as is reasonable ii. Purpose: formulate a trial plan, including plan to facilitate admission of evidence iii. Every evidence/contention to be introduced; iv. LIMIT: statement of issues/witness list-- cant add or omit any at trial.

X. ADJUDICATION WITHOUT TRIAL


A. SUMMARY JUDGMENT: Rule 56 adjudication without trial or jury

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a. Definition: enter judgment whenever it seems theres no genuine issue as to any material fact and that movant is entitled to a judgment as a matter of law. i. Note: its not about whose evidence is more credible. As in, SJ not meant to try facts but only to determine whether there are genuinely contested issues of fact. b. Distinction from Rule12b6: MSJ goes beyond pleadingslooks at interrogatories, depositions, affidavits, sworn statements to designate specific facts to show genuine issue. i. Rule 12b6- determines only whether Ps allegations state a claim for which a court might grant relief (legal sufficiency rather than factual sufficiency) 1. Undefined facts are treated as true. ii. MSJ considers whether P meets minimum to plead the elements of claim. c. Distinction from Directed Verdict: i. Directed verdict granted on a basis of evidence presented at trial whereas SJ granted based on affidavits 1. Court having heard evidence at trial concludes no reasonably jury could find for one side, court may enter judgment w/o submitting case to jury. d. When MSJ appropriate: i. Matter of law for judge to decide: Agree on material facts & dispute solely on law ii. Parties dispute the facts but dispute not genuine b/c so little importance iii. Celotex: Rule 56(c)(1) 1. Moving party may produce evidence (affidavit) negative an essential element of nonmoving partys cause OR 2. After suitable discovery, show that nonmoving party doesnt have enough evidence of an essential element of its claim to carry ultimate burden of persuasion (basically D saying P cant prove it later anyway) e. How to determine MSJ? i. When burden of persuasion moves to a higher std, burden of production should also move. (Anderson v. Liberty Libby) (P must now provide some evidence) 1. Burden of production: obligation of one side to come forward with evidence to supports its claim 2. Burden of persuasion: Evidence that party must present to win on a claim/defense. Varies, depending on degree of certainty that the factfinder must have in order to rule for the claimant. a. Preponderance of evidence: factfinder must believe claimants version of events is more probable than not b. Clear and convincing evidence: somewhere in btw preponderance and beyond a reasonable doubt std c. Beyond a reasonable doubt: much higher std (crimlaw) ii. Mover bears initial burden of production on the absence of any genuine issue of material fact (if satisfied, burden of production shifts to nonmoving party) iii. Mover bears ultimate burden of persuasion to show there is an absence of any genuine issue of material fact. iv. If evidence falls right on the line at burden of persuasion btw P and D, the moving party losses(b/c evidence seen in light favorable to nonmoving party) f. Partial SJ: Rule 56(d) dispose of some but not all issues in case.
A = Burden of production B = Burden of Persuasion

Scintilla of evidence

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B. DIRECTED VERDICT (Judgment as a matter of law) a. Only brought about if party moves for it. b. If court determines that theres insufficient evidence, it may decline to submit the case to the jury and instead enter judgment. c. Standard: whether a fair minded jury could return a verdict for P on the evidence presented d. Timing: after parties presented evidence but before evidence submitted to jury. e. Rule 50(a) motion must specify judgment sought& law/facts that entitle movant to judgment C. JNOV (Renewed Motion for judgment as a matter of law) Rule 50(b) a. NOTE: cant move for renewed JMOL if you didnt move for JMOL the first time! b. Only brought about by motion. c. If jury returns a verdict for which there is insufficient evidentiary support, court can enter this. d. Timing: may be filed within 10 days after entry of judgment. e. Standard: whether a fair minded jury could return a verdict for P on the evidence presented f. Rationale: should have been considered unconstitutional due to 7th amendment but the theory was that court, by denying motion for DV, simply delayed ruling on DV until later. AFTER THEN P files claim D can file Rule 12b6 Until 30 days after close of all discovery MSJ Rule 56 During trialP presents evidence D can move for Directed Verdict During trialD presents evidence Either party can move for DV Jury verdict JNOV

XI. PRECLUSION IMPORTANT NOTES!: If issue was brought in state court, law of that state determines if preclusion keeps another case from being brought in federal court (i.e. state law of 1st case controls whether theres preclusion) If first case was in fed court under Fed Q Jurisdiction, federal CL controls in determining preclusion * If brought in fed court under diversity, look at Erie Doctrine (court determines preclusion based on state substantive law) o Substantive depends on forum shopping and inequitable administration of justice i. Policy reason: a. Efficient: for judicial branch, court shouldnt waste time and resources hearing cases over and over again b. Fair: once you settle, its final- from pov of parties

A. CLAIM PRECLUSION (res judicata) when does judgment preclude 2nd case (1st case- one thats first to get to judgment) ii. Rule 8c1: This is a Waivable defense! If you dont raise it, you waived it. iii. Rationale: claimant has only one chance to vindicate all of rights to relief encompassed in single cause of action. iv. Dangers: a. If preclude too much, party may no get their day in court b. Hansberry v. Lee: why should he be precluded from his day in court just b/c others purported to represent him in another case. v. ELEMENTS: a. Two cases have to involve the same cause of action or claim b. Parties have to be identical or in privity c. First case must have ended in a valid, final judgment on the merits

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vii.

viii.

Element #1: same cause of action/claim: a. How to define cause of action i. MAJORITY: wrongful act one single cause of actioni exists and only one action may be brought 1. Argument: injury to person and property creates only a single c.of a. a. Since Ds wrongful act was single, c. of a. must be single and different injuries occasioned by it are merely items of damage from the same wrong. 2. Adv of this view: Prevent unnecessary litigation; eliminate added court costs/delays; expeditiously end litigation ii. MINORITY: Primary rights single tort, resulting in damage to both person and property, gives rise to 2 different cause of action, and so, recovery in one is no bar to that of a subsequent action 1. Argument: Negligent act of D in itself constitutes no cause of action and becomes an actionable wrong only out of the damage which it causes a. Personal injury v. property damage- diff and impractical to have one action since diff pds of limitation apply. iii. Restatement (2nd): Transactional test package claims into a single case along transactional lines 1. Considers a claim to encompass all rights to relief with respect to all or any part of the transaction, or series of connected transactions, out of which the action rose 2. Transaction is a natural grouping or common nucleus of operative facts 3. Focus on factors that are closely related in time, space, origin, or motivation b. Contract: If different contracts and bonds, each contract/bond gives rise to separate claim or series of claims. Element #2: parties identical/in privity a. Rationale: everyone entitled to her day in court. b. Requirement: i. Same parties (or in privity) 1. in privity: a. representation i. guardianship ii. class actions iii. trusts b. substantive legal relationship: i. rights to decedents estates ii. owners of property c. NOTE: vicarious liab NOT a privity ii. Parties in Same configuration 1. Brought by same claimant against same D. 2. Policy: b/c B never had chance to exercise Ps autonomy (choice of forum) 3. Disadv: inefficient. Same fact pattern being relitigated just b/c different party configuration c. COMPUSLORY COUNTERCLAIM RULE: MAJ: Rule 13(a)(1) i. Created in response to disadvantages (inefficiency) ii. If A sues B, and B has claim against A arising from same transaction, if B doesnt raise it in the same action, B precluded from raising it in a subsequent action. Element #3: valid, final judgment on merits

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a. Validity: so long as court had the authority to render that decision, it is valid, even if wrong on the merits (if party feels that judgment was erroneous, should have appealed it in original jurisdictionso precluded). i. Exception to preclusion: if court didnt have personal or SM jurisdiction. b. Finality: i. No preclusive effect to interlocutory decisions (judge decide in middle of case but dont dispose of case) ii. Judgments are final even pending appeal c. On the merits: Rule 41b: based on validity of Ps claim not on technical ground i. Today, modified: Any final judgment after parties had opp to get to merits, even if didnt actually get to merits, afforded preclusive effect. 1. Default judgment technical b/c no evidence introduced to the contrary (judge not decide on evidence). BUT STILL ON THE MERITS and afforded PRECLUSIVE EFFECT b/c it establishes substantive validity of claim. 2. MSJ/ DV constitute decisions on the merits. ii. What constitutes technical: failure to prosecute, discovery sanction, lack of jurisdiction/venue, nonjoinder, misjoinder of parties. d. Rationale: prevents relitigation of an issue that was already litigated and determined in a prior case Exceptions to claim preclusion: a. parties have agreed in terms or in effect that P may split his claim, or the D has b.

c.

d. e.

f.

B. ISSUE PRECLUSION (Collateral estoppel): prevent relitigation of an issue that was already litigated and determined in a prior case i. ELEMENTS: a. Same issue actually litigated and determined in first case? b. Was issue essential to judgment in the first case? c. Was holding on that issue embodied in a valid, final judgment on the merits? d. Against whom may preclusion be asserted? e. By Whom may preclusion be asserted? f. Exceptions to issue preclusion ii. Element #1: actually litigated and determined

acquiesced therein court in first action has expressly reserved Ps right to maintain 2nd action P was unable to reply on a certain theory of the case or to seek a certain remedy or form of relief in the first action b/c of limitations on subject matter juris of courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relif in a single action, and P desire the 2nd action to rely on that theory or to seek that remedy or form of relief; or judgment in first action was plainly inconsistent with fair and equitable implementation of statutory or constitutional scheme, or it is the sense of the scheme that P should be permitted to split his claim for reasons of substantive policy in a case involving continuing or recurrent wrong, P given an option to sue once for the total harm, both past and prospective, or to sue from time to time for the damages incurred to the date of suit, and chooses the latter course clearly and convincingly shown that policies favoring preclusion of a 2nd action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty or the failure of the prior litigation to yield a coherent disposition of the controversy.

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iii.

iv. v.

vi.

a. Policy reason: everyone entitled to her day in court. If arising from different claim, then P couldnt have had opp to present issues in the previous case. b. If general verdict for P: deduce which factual findings were litigated/ determined c. If general verdict for D, ambiguous. d. If specific verdict for P or D. we know which factual finding was litigated/determined Element #2: essential to judgment a. NOT essential if: i. Findings on the issue could have come out the other way and judgment stays the same (ask what if opposite finding, would judgment be the same) ii. Issue was found in favor of the party against whom judgment was rendered b. Policy reasons: i. b/c judgment was entered in favor of the party, he would not have been able to appeal the judgment ii. b/c the issue may have been irrelevant to the outcome at the time. So party that won might not have really fought on that issue in the first case. c. Disadv: inefficient. Basically relitigating sth that has been litigated alrdy. d. Examples: i. Case #1: A sues B for negligence. B says contributory negligence. Special verdict finds both negligent but judgment for B. ii. Case #2: B sues A to recover. Since As negligence was essential to first judgment, B can assert IP as to As negligence. But A cant raise IP against B as to his negligence. e. Alternative Determinations: What if two issues, either one could result in judgment and we dont know which one was essential and which one was just an extra? i. 1st restatement: preclusive effect afforded to both alternative determinations ii. 2nd restatement: denies preclusive effect to both determinations, unless one or both are later affirmed on appeal Element #3: valid, final judgment on merits Element #4: against whom (due process): Only against parties to the prior litigation or nonparties so closely related to them as to be considered in privity with a litigant. a. Privity: sufficiently close to justify preclusion i. Successor in property interest: Nonparty who has succeeded to a partys interest in property is bounded by any prior judgments against that party ii. Nonparty who controlled the original suit will be bound by resulting judgmt 1. To have control of litigation requires that a person have effective choice as to legal theories/proofs to be advanced in behalf of party to action. iii. Federal courts will bind a nonparty whose interests were represented adequately by party in original suit (class actions) 1. Virtual representation (for CP or IP): a. Party being bound in the 2nd case has an identity of interst with her rep in the first b. Adequacy of representation; and c. At least one additional factor such as i. Close relationship btw present party and her putative rep; ii. Substantial participation by the present party in the first case; or iii. Tactical maneuvering on part of the present party to avoid preclusion b. NOTE: privity not established by mere fact that person happened to have same interest in Q or in proving state of facts. c. NOTE #2: vicarious liab NOT a privity Element #5: by whom (who wants to preclude relitigation of an issue) About whether D should get 2nd day in court; not about whether P wants a day in court.

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a. Traditional Mutuality: issue preclusion can be used only by s/o who was a party (in privity) to the first case i. Rationale: fairnesssomeone who cant be hurt by prior judgment shouldnt be entitled to take advantage of it. b. Modern: permit nonmutual issue preclusion (assertion of issue preclusion by s/o who wasnt a party to the first case) c. Exceptions: IP allowed when i. Narrow exception: 1. Case #1: patron v. employee (verdict finds employee NOT negligent) 2. Case #2: patron v. employer (verdict finds employee WAS negligent) 3. Employer then sue employee for indemnification. 4. **employees victory in Case #1 no longer makes sense and employee has to pay for damage anyway ii. Broad exception: no weird result but some court still allow IP here. 1. Case #1: patron v. employer (finds employee NOT negligent) 2. Case #2 patron v. employee (finds employee negligent) 3. No issue of indemnification d. Reject mutuality: Nonmutual defensive IP: some cts reject mutuality and have this instead of exceptions to mutuality. i. Fact pattern: 1. Case #1: D1 wins 2. Case #2: P sues D2; D2 asserts IP against P ii. State level: (Bernhanrd) reject mutuality 1. Note: state law on preclusion will govern if case #1 entered in state court and case #2 filed in fed ct. iii. Federal level: (Blonder-Tongue) 1. reject mutualitymutuality unnecessary in defensive IP cases, as long as P had full and fair opp to litigate 2. Reason: a. Public interest in efficient judicial administration b. Fairness issue c. Misallocation of resources, ds time and money diverted from alt useproductive or otherwiseto relitigate on decided issue d. Permitting relitigation of same issue as longa s supply of unrelated Ds holds out reflects lack of discipline of lower cts e. Unfair to give so many bites at the same apple. iv. Policy: allowing IP promote judicial economy b/c it gives P strong incentive to join all potential Ds in first action if possible e. Reject mutuality: Nonmutual offensive IP: i. Fact Pattern: 1. Case #1: P1 v. D; P1 wins 2. Case #2: P2 v. D; P2 may assert IP against D. ii. Problem: if you allow nonmutual OIP, P2 can ride on P1s victory through IP. Perversely creates inefficiency (more actions). 1. Also P1 might ask for huge settlement saying that if it win, then D would have to face other Ps who could ride on P1s victory. iii. REQ/LIMIT: P2 may ONLY assert IP against D if 1. Party using IP couldnt have easily joined in the first case a. If not easy to join, then not trying to gain perverse incentive by waiting. Had no choice but to wait. 2. Its not unfair to D.

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a. Unfair if D in 1st action sued for small damages, so he had little incentive to defend strongly, esp if future suits unforeseeable; b. Unfair to D if judgment relied upon as a basis of estoppel is itself inconsistent with one/more previous judgments in favor of D. c. Unfair when 2nd action affords D procedural opps unavailable in 1st action that could cause different result. (inconvenient forum) Element #6: Exceptions (Rest. 2nd 28)

a. Party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or b. The issue is one of law and i. (1) the two actions involve claims that are substantially unrelated, or ii. (2) a new determination is warranted in order to take acct of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or c. A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of juris btw them; or d. Party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden ha shifted to his adversary; or the adversary ahs a significantly heavier burden than he had in the first action; e. Clear and convincing need for a new determination of the issue i. (a) b/c of potential adverse impact of the determination on the public interest or interests of persons not themselves parties in the initial action, ii. (b) b/c it wasnt sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or iii. (c) b/c party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opp or incentive to obtain a full and faire adjudication in the initial action. f. **nonmutual offensive IP not available in litigation against US i. Policy: would be inefficient/against interest of running country.
Case #1: Pv.D1; P lost Case #2: P v. D2 Nonmutual D IP ok D2 allowed IP b/c same partyP alrdy has his day in court Case #1:P1v.D;Pwon Case #2: P2 v. D Nonmutual O IP by P2 ok IF (1) can easily join in 1st case AND (2) not unfair to D. Case #1: P1v.D; P1 lost Case #2: ? Does nothing to P2. No risk to P2.

Case #1: P v. D1; P won. Case #2: P v. D2 P cant assert IP b/c D2 didnt get day in court (against whom)

EXAM FORMAT A. Pick a side B. Identify issue C. Identify Case/Test/ rules pertinent to issue D. Rule Application to facts a. Argue b. Can identify weak arguments and counterclaims c. Compare facts of prompt with facts of authority E. Conclusion of after analysis of each issue