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0. PRE-LITIGATION CONSIDERATIONS
1. Does the law furnish relief for this grievance?
2. What is the probability of winning?
3. Is it worth the time, effort and expense vs. alternatives: settlement, arbitration, self-help, forgetting about it
6. THE RESPONSE
1. 12(b) Motions to Dismiss
i. 12(b)(6) Failure to state a claim or cause of action
1. Law clearly furnishes no redress for this injury (i.e. frowning at me)
2. P failed to include an essential allegation (i.e. that the D was the employer of the person who injured me)
3. Too general, notice not adequate
2. Answer
i. Admit or deny
ii. Affirmative Defenses
iii. Counterclaims (must be answered by P)
iv. Implead
7. DISCOVERY
1. Depositions
2. Written Interrogatories
3. Production of Documents
4. Requests for Admissions
5. Physical Examinations
8. SUMMARY JUDGMENT
9. THE JURY
• Minimum Contacts: International Shoe v. Washington (Diverse company with systemic and continuous
Defense:
• Special appearance: 12(b)(2) motion to dismiss for lack of jurisdiction.
• Collateral attack (vs. direct attack): did not answer, but brought jurisdiction challenge in second lawsuit
• 14th Amendment: due process, right to respond etc (stemming from notice)
2. Subject Matter Jurisdiction: Article 3(2) of the Constitution grants restricted SMJ
o 12(h)(3) Cannot be waived, may be determined by the court sua sponte
[1] Federal Question Jurisdiction: 28 § 1331 Actions arising under the Constitution, federal laws or treaties
Must arise in a “well pleaded complaint,” not sufficient to anticipate that a defense will raise a federal
question. See Louisville & Nashville Rail v. Mottley [765]
[2] Diversity of citizenship: 28 § 1332
(a) District court has original jurisdiction where value (exclusive of interests and costs) is greater than
$75,000 [(1) at least one P (2) complete diversity and (3) same case or controversy] and is between
(1) citizens of different states
• Domicile: “true, fixed, and permanent home and principle establishment, and to
which he has the intention of returning whenever he is absent therefrom” Mas v.
Perry [773].
• Look at residence, behavior etc Ochoa v. PV Holding Corp. [774]
• Student retains original domicile Mas v. Perry
(2) citizens of a state and of a foreign state
• Complete diversity: parties on each side of the “v.” must be totally diverse
(3) citizens of different states and in which citizens or subjects of a foreign state are additional
parties and
(4) a foreign state as plaintiff against citizens of a state or multiple states.
(c) (1) a corporation is a citizen of
o any state by which it has incorporated AND
o its principle place of business
(d) Class Action
o Multiparty, Multi-forum Trial Jurisdiction Act (MMTJA): authorizes federal jurisdiction over mass tort cases
deriving from a single accident killing at least 75 persons.
o Class Action Fairness Act (CAFA):
[1] Pendant Jurisdiction: allows Federal court to decide a state-law claim that arises from the same
transaction/occurrence as a Federal-question 1331 claim already before the court.
Step 1: See United Mine Workers of America v. Gibbs [793] where the Fed Court can maintain
supplemental state claims (conspiracy and unlawful boycott) if federal claims (secondary boycotts under
the Labor Management Relations Act) are:
• substantial and
• arise from same common nucleus of operative fact
Step 2: 28 U.S.C § 1367: Supplemental Jurisdiction
(a) With general jurisdiction, District Courts have supplemental jurisdiction over all other claims so
related to original claims, including joinder or intervention. EXCEPT:
(b) with diversity jurisdiction, even over non diverse 3rd party impleaders (NJ v. NY -> NY impleads
NY2)which does NOT confer supplemental jurisdiction over claims by PLAINTIFFS against:
5. Venue. Which set of courts is proper jurisdiction? [most convenient and logical court
28 U.S.C. § 1391 RULE:
(a) Diversity Cases: Civil actions may only be brought in:
(1) Judicial district where D resides (if all D’s reside in same district)
(2) Judicial district where a substantial part of the events/omissions giving rise to the claim occurred
(3) Place where D is under personal jurisdiction, if no other options
(b) Federal Question Cases:
(1) Where any D resides, if all D’s reside in the same state
(2) Where a substantial part of the events….
(3) where any D may be found, if no other options
(c) Corporations: Any district where it is subject to personal jurisdiction at the time the action is commenced.
(sufficient as if it were a state, otherwise in district w/ most significant contacts)
28 USC § 1392: When D’s or property are in different districts in the same state, any district is sufficient
28 USC § 1404: Change of Value, District Court may transfer to another district in which the action might have been
brought for the convenience of the parties and witnesses and in the interest of justice
28 USC § 1406: Wrong District the court will dismiss the claim or transfer it to where it could have been brought
YES
Does it violate the Necessary and Proper Clause of the Constitution? Apply state
Hanna v. Plumer (Is it unconstitutional?)
NO
Apply federal law.
[2] Federal Judicial Practice vs. State law/practice: “Unguided” Erie Choice
Is the law Substantive (“bound up” in state created rights or
obligations) or Procedural? Byrd v. Blue Ridge Rural Electric SUBSTANTIVE Apply state law.
Co. (SC’s common law to try workman’s comp by judge not binding: Free to (Erie)
try before jury) [831] “bound up”
YES
Would using the federal practice be outcome determinative? Guaranty Apply state law
Trust v. York (Fed Courts bound by state S.o.L. because it is outcome determinative)
Consider the “twin aims” of Erie per Hanna
1. Would the federal practice create forum shopping?
2. Would it result in inequitable administration of the law? NO Apply federal law
Harlan, concurring: Should ask whether the distinction would effect the
decision of the parties in choosing a forum.
See Gasperini v. Center ( applying 7th Amend encourages forum shopping b/c damages
would not be reviewed in Fed court, but would be in state. Remanded for new determination
under state standards b/c of “abuse of discretion.) [855]
Goldberg’s Civil Procedure page 6 of 30ish
7
3. Useless background
o Swift: Unified federal common law on issues not specifically delegated to the states, unless there is a specific statute
on the issue, federal general common law presides. PROBLEMS:
o Unconstitutional
o Not unifying
o PLUS forum shopping, inequitable
o Substance vs. Procedure: Erie Railroad v. Tompkins (except for matters of the constitution and given to the courts
by congress, courts have no power to encroach on the power delegated to the states) [818]
o Discourage forum shopping
o Prevent inequitable application of law
o State law is both statutory and common law
o Outcome determinative test: Fed court should decide as the state court would (is it possible that the outcome would
be different? If so, defer to state law.)
o Guaranty Trust Co. v. York (outcome determination) [827]
4. Policy
o Problems with Swift
o Forum shopping Black & White Taxi
o Inequitable administration of justice (no equal protection under law)
o Failed to create uniformity
o Gave advantage to non-citizens
o No “true law”
o Rationale behind Hanna
o Uniformity in federal courts (procedure
o Clarity
1. Seizing a Person or Property, Rule 64: Every remedy available under state law that provides for seizing a
person or property to secure satisfaction of the potential judgment. (A federal statute would govern) [arrest, attachment,
garnishment, replevin, sequestration, others]
ii. Company can repo on its own and will not be subject to Due Process Flagg Brothers Inc. v. Brooks
2. Injunctions & Restraining Orders, Rule 65: Maintain Status Quo while case is argued
(a) Preliminary Injunction: with notice to the other party. Consider the American Hospital Supply v. Hospital
Products (Find for public interest: Bankruptcy causes decrease in competition and an increase in prices) Test:
(1) Irreparable Damage (inadequate remedy at law)
(2) Damage to P o/w damage to D
(3) Likelihood of P prevailing
(4) Public interest
(b)(1) Temporary Restraining Order Without Notice:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable
injury, loss or damage will result to the movant before the adverse party can be heard in opposition
AND
(B) attorney certifies in writing any efforts made to give notice and the reasons why it should not be
required
(2) Expires in 10 days
o EXCEPTION: Replevin violates due process when property recovered are absolute necessities of life AND the
state does not require a convincing showing that the goods are wrongfully possessed. Weigh possessory
interest/significant property interest against the claims in 65(b)(1)(A). Fuentes v. Shevin (Deprivation of stove
without opportunity to be heard and without a convincing showing of immediate and irreparable damage violates
Due Process)
[2] Rule 11 Sanctions: Court can order payment of attorney’s fees as a sanction for pleading without adequate inquiry,
unwarranted by existing law or fact or based on a frivolous argument
[3] Rule 68 Offer of Judgement: Attorney eats the fee (cost) if eventual award is less than a turned-down offer. See Marek v.
Chesney (attorney’s fees included in Rule 68 “costs” that can be shifted to plaintiff who rejects a settlement offer that is
more than the final recovery) [148]
o Encourage settlement out of court
o Attorney has no ethical obligation to seek fees, consider an offer that pays in full except attorney’s fees. See
Evans v. Jeff D. [150].
• Balance fairness to client and ability to maintain private practice
2. Preparing a Complaint:
Rule 1: Scope and purpose, 3 goals
Just
Speedy
Inexpensive determination
Rule 2: Civil Action
Rule 3: Commence an action by filing a complaint (5(e) defines filing)
Rule 4: Summons
(k) Foreign service
(m) served within 120 days after complaint is filed
Rule 5: Serving and Filing Pleadings
Rule 6: Computing Time
Rule 7: Pleadings Allowed (complaint, answer to a complaint, answer to a counterclaim designated as a counterclaim,
answer to a cross claim, third-party complaint, answer to a third party complaint, reply to an answer if the court
orders)
3. Rule 9(b): When pleading fraud or mistake, must state with particularity the circumstances (malice, intent, knowledge
and other conditions of the mind are acceptable)
(g): Special damages specifically stated
4. Rule 41 Dismissal
o (a) Voluntary Dismissal
• (1) By Plaintiff, without prejudice, if
o (i) before answer or motion to dismiss or
o (ii) stipulation signed by all parties
o Otherwise, must get permission from court.
o If it is with prejudice, it will be harder to bring the case again
o With prejudice if case is involuntarily dismissed for second time
2. Preliminary Motions:
o 12(e): Motion for a more definite statement
o 12(f): Motion to strike “redundant, immaterial, impertinent or scandalous matter”
o Chaplin v. Dupont Advance Fiber Systems. Confederates discrimination based on national origin, religion and race.
Religion and race fail the tests of 11(b)(2) and (3)[288].
o Rule 12(b)(6) Failure to state a claim upon which relief can be granted, when we view the facts in the light
most favorable to the Plaintiff, if
(1) Law clearly furnishes no redress for this injury (i.e. frowning at me)
(2) P failed to include an essential allegation (i.e. that the D was the employer of the person who injured me)
(3) Too general, notice not adequate
5. Answer:
[1] Admit or Deny in a short and plain terms Rule 8(b)(1)
May admit or deny in part Rule 8(b)(3)-(4)
May state lack of knowledge Rule 8 (b)(5)
Silence is admitting (unless response is not required) Rule 8(b)(6)
May assert alternative [8(d)(2)] or inconsistent [8(d)(3)] claims or arguments
[2] Assert Affirmative Defenses. Rule 8(c)(1)
Arbitration and award
Assumption of risk
Contributory negligence
Duress
Fraud
Illegality
Release
Etc….
2. Joinder of Parties
[1] Third Party Practice: Another party that may be liable to D
o Rule 14: IMPLEADER
• (a)(1) “is or may be liable” for “all or part of the claim against it.” See Gross v. Hanover Insurance
(owner and brother of jewelry store were involved in theft) [311] 10 days or court’s leave after
original answer (not motions): Not a party, theory of liability, and same occurance.
• Derivative liability:
o Indemnification: did not do the work
o Contribution: contributory liability – only liable if original D is liable.
• (a)(2) Defense:
• (A) any defense under 12 (motions and answers)
• (B) counterclaim under 13(a) (compulsory cc’s), (b), (g)
• (C) any defense the 3rd party P uses
• (D) may bring any claim arising out of the transaction/occurrence (may be unrelated to claim)
o Rule 22: INTERPLEADER:
• (a)(1) By Plaintiff: if may be exposed to double or multiple liability may join those persons. Joinder is
proper despite:
o (A) claims lack common origin or are adverse and independent
o (B) P denies liability
• (a)(2) By Defendant: through Rule 13 cross-claim or counterclaim
3. Joinder of Claims
[1] Rule 13: COUNTERCLAIMS (D v. P) and CROSS-CLAIMS (D1 v. D2) (must be answered by P)
(a)(1)Compulsory: must argue in original pleading or lose it. See Podhorn v. Paragon (lost by default,
cannot bring new action because it was a compulsory counterclaim) [300]
(A) same transaction or occurrence
(B) does not reqire adding another party
(b)Permissive: any other claim against P
Likely to separate under 13(i), 42(b)
(c) Relief: may exceede and be different in kind
(g) Crossclaim: against a coparty:
arises from same transaction
relates to any property that is the subject matter of the original claim
(i) Name, address, and telephone number of individuals likely to have discoverable information (and subjects of that
information) that the disclosing party may use to support its claims or defenses (unless solely for impeachment)
(ii) copy or description of all documents that it may use to support its claims etc
(iii) Computation of damages claimed + documents supporting it
(iv) Insurance agreements under which the insurance co. may be liable
o Do NOT have to give information that goes against your case (“Support”)
o Violation of this rule results in nearly automatic sanctions under 37(c)
4. Techniques
o Depositions: Rule 27-32 to perpetuate testimony (a) before an action is filed (a)(1)(C) must show reason to
perpetuate
Limit of 10, may be expanded
Benefits: assessing demeanor of witness, spontaneity, follow up questions, non parties
Expensive and time consuming
o Written Interrogatories: Rule 33
Limit to 25
Benefits: efficient, inexpensive, available for use at trial
Carefully drafted by lawyers to contain little to no information, no spontaneity
o Production of Documents: Rule 34 Request for documents and things to inspect, copy and return
Any written or electronic information, also real things like personal property
Difficult to strike balance between over and under-inclusiveness. All correspondance is too much in Moss
v. Blue Cross (any possibility of relevancy: burden to show on party seeking discovery) [364]
o Physical Examinations: Rule 35 needs court approval in advance and a showing of good cause
o Requests for Admissions: Rule 36 lock in particular admissions/denials for trial so as not to overlitigate
o Informal Discovery: research, internet, PI
o Experts: Key to aiding juries
5. Policy
o For:
o Reduce the chance of “trial by ambush” and allow determination upon merits
o Promote settlement (95%)
o Reduce cost by focusing trial on pertinent issues
o Judge will abandon neutrality if she is searching for material truth
o Attorney compromises his duty to client by serving as an officer of the court
o Alternative to the administrative state: discovery checks bad behavior, and if they didn’t the government
would have to be given that power.
(a) Claiming party (the one seeking relief) can claim after 20 days or when the opposing party serves a motion
for summary judgment
(b) Defending party may file at any time
(c) pleadings, discovery and disclosure materials on file (affidavits, docs, depos, exams, interrogs, admissions…
ie SWORN testimony) show:
• There is no a genuine issue as to a material fact and
• The movant is entitled to judgment as a matter of law. (is the non-moving partys genuine and
material facts legally sufficient)
(e) Affidavits etc to support
(2) must respond with specific facts showing a genuine issue
o Policy: Gender
o Federal trial judges now more likely to use SJ than before
• Takes plaintiff’s right to a jury trial, and process matters a great deal
o Gender bias exists in application of SJ, especially in employment discrimination and sexual
harassment cases
[1] Nature of Claim: “analogous cause of action that existed in the 18th century”
Suit brought to vacate arbitration award? EQUITY
Action by a trust beneficiary against a trustee for breach of fiduciary duty? LAW
Attorney malpractice Action? LAW
[2] Nature of Remedy:
Monetary Damages = jury UNLESS
(1) Questions of Restitution (Equity)
(2) Injunctive Relief (Equity)
o Rule 38(b) Must demand jury trial. (d) A party waives right to jury trial unless demand is properly served and filed.
o Rule 39: Court can order trial by jury if it could have been demanded
o Rule 47: Selecting Jurors
o Rule 48: At least 6 no more than 12. Verdict must be unanimous.
o 28 USC §1861: Right to a randomly created jury of a fair cross section of the jury pool not community.
o 28 USC §1862: No citizen shall be excluded
o 28 USC §1865: Requirements for Jurors
2. Selection
[1] Challenge for Cause: Unlimited challenges under 28 USC §1865
[2] Peremptory Challenges (3): (See 28 USC §1870) Batson v. Kentucky (once a D has made a prima facie showing of
discrimination, burden shifts to Gov’t to provide a race neutral explanation for striking all black jurors) [457]
(1) Party opposing a strike must make a prima facie case that the strike was (racially) motivated. Extends to
civil actions in Edmonson v. Leesville Concrete and gender in J.E.B. v. Alabama [458]
(2) Burden shifts to striker to provide a race-neutral reason for the strikes. Reason does not need to make sense,
just be legitimate. See Purkett v. Elm (black jurors struck for having long curly hair, and mustache’s) [459].
(3) Objector must prove discrimination was purposeful.
(b) Renew JML after jury decision: Judgement Notwithstanding the Verdict (JNOV/ Renewed Judgment as a
Matter of Law)
o Unconstitutional because it violated the 7th Amendment: “…no fact tried by a jury shall be otherwise re-examined in
any Court of the United States…” Overruled because judge is not weighing the facts, he’s just determining legal
questions (legal sufficiency of evidence).
o Judge can decide when there is not sufficient evidence to prove an essential element. See Tavoulareas v. The
Washington Post (JNOV/JML following jury verdict b/c no legally sufficient evidence to prove an element of claim:
malice) [handout].
o Must move for JML at some point in order to reserve the court’s right to evaluate the legal sufficiency of facts (i.e.
when a judge denies a motion for JML s/he is simply stating s/he does not have enough info to judge yet)
“court is considered to have submitted the action to the jury subject to the courts later deciding the legal
questions raised by the motion,” allowing the judge to weigh legal sufficiency of facts, avoid 7th
Amendment problems.
o Could have granted 56(c) summary judgment, but instead waited to see trial evidence because:
If jury had agreed with judge the question would be moot and right to jury trial upheld (why use the power
if not necessary)
Court of Appeals won’t need to remand for re-trial because they know how the jury found.
o Why to find JML before going to jury
If jury disagrees, it wastes time, money and
decreases legitimacy of jury trial
o Why Bring?
Not enough evidence
Evidence is not credible
o Additur v. Remittitur
o 7th Amendment problem: Additur adds extra money not decided by the jury, revisiting verdict
o Remittitur: either the judge
• Remits the least amount possible to bring verdict into acceptable range
o Gives deference to jury (7th Amend)
• Remits to exact amount s/he thinks is correct
o Judge displaces the fact finder
• Remits to greatest amount possible, at low end of range
3. Declaratory Judgment: Must have adversarial proceeding, not inquisitorial (See Art. III)
4. Consent Decree: Parties agree to terms and have a judge certify and enforce
o Rule 68 Offer of Judgement: Attorney eats the fee (cost) if eventual award is less than a turned-down offer. See Marek
v. Chesney (attorney’s fees included in Rule 68 “costs” that can be shifted to plaintiff who rejects a settlement offer that
is more than the final recovery) [148]
o Encourage settlement out of court
o Attorney has no ethical obligation to seek fees, consider an offer that pays in full except attorney’s fees. See
Evans v. Jeff D. [150].
• Balance fairness to client and ability to maintain private practice
(2) the present suit arises out of the same claim as the prior suit
• Restatement (2nd) § 24: “Claim” & “Transaction” [868]
o (1) The claim extinguished includes “all rights of the plaintiff to remedies against the D
with respect to all or any part of the transaction, or series of connected transactions, out
of which the action arose”
o (2) Transaction: “related in time, space, origin, or motivation, whether they form a
convenient trail unit, and whether their treatment as a unit conforms to the parties’
expectations or business understanding or usage”
• Car Carriers, Inc. v. Ford Motor Company (Anti-trust/RICO. Same transaction test appropriate
(not same rights, duties, and injuries), common nucleus of operative fact means cannot bring
second claim under res judicata – also, court encourages P’s to do all their homework) [870]
•
(3) the parties in both suits are the same, or in privity
• Due Process: every party has their day in court, opportunity.
• Gonzales v. Banco Central Corp. (2nd group not bared from suing over same issue because not in
privity with first group: No meaningful control & Not represented) [879].
o Substantial Control (influence over initial lawsuit i.e. liability insurer, indemniotor etc.
BUT NOT same attorney, witness, assisted with trial)
o Virtual Representation (de-facto representation)
o Can only bar challenges to rules that existed at the time and P had the opportunity to bring (New statues justify new
claims).
However, once there is a final decision the only option is appeal (cannot bring the same case again if the
law changes) Federal Department Stores, Inc. v. Moitie [908].
Exception:
o Must persuade court that common questions predominate over individual questions and that a class action is
superior to other available fair and efficient methods: “Predominance” and “superiorority”
o “Blackmail Settlements” and class actions unfairly raising the stakes: In the matter of Rhone-Poulenc Rorer Inc.
(Posner decertifies AIDS class action b/c it unfairly raises the stakes AND the claim of each class member is sizeable
enough to make individual suits feasible) [946].
o However, raising the stakes is a value of class actions.
o Settlement Classes: Amchem Products, Inc. v. Windsor (23(b)(3) Class action brought simply for settlement, class
members excluded from settlement objected to being precluded from bringing their own claims, court applied Due
Process despite the fact that this class settlement is the best way to guarantee the most damages payments) [959].
Implications of certification:
• Personal jurisdiction: Unclear whether court must have PJ over absent members of class w/o notice, no opportunity to opt-out
• Subject matter jurisdiction: Prior to CAFA, diversity jurisdiction required complete diversity in classes
• Conflict of laws: Due process limits judge’s ability to nationalize substantive law in avoiding the difficulty of applying various state laws.
• Settlement: Class action can’t be dismissed w/o court approval (see below)
o The court will judge the fairness, reasonableness of settlements
• Class counsel: Court appointed, approved
• Attorney’s Fees: Attorneys limited to fees on redeemed claims, not just offered judgment to πs.
Class members are barred from re-litigation by res judicata:
• Exception to standard rules of same party/privity. New litigation barred if:
o adequate representation by parties who were present
o party actually participated in litigation
o joined party in first class suit w/ same interest
o where for any other reason the relationship between the parties warrants it
• Class certification is conditional throughout trial, can be decertified if it’s clear it should be.
• Use caution when individual stakes are high and disparities among class members great.
CAFA
Settlement/Attorneys fees
Civil Rights:
42 § 1983: Authorizes suits for constitutional violations
28 § 1343: District court has original jurisdiction under 1983 claims
- When judges tackle this tasks, one of three things is bound to happen:
o The judge may reformulate the problem to make it solvable through adjudication.
o Litigation looks at more than just the past but the future too
Managerial Judging:
- Judges increasingly being seen as “managers,” dealing with heavy dockets and complex cases, using their role as a judge to
promote settlement, directing cases to ADR, and employing assistants and managers to speed and lighten the process
- Resnik says no data shows that judicial management was any faster, led to more settlements, was cheaper overall, and that
the power and discretion used by some judges under Rule 16 open the door for abuse, unreviewable actions, bias, and an
emphasis on efficiency over actual justice.
- Subrin argued that judges should try to just keep mediation as an option, and decide pre-trial motions expeditiously as to
show preliminary views of the case that could shape the results of mediation.