Subject Matter Jurisdiction

9/21/13 11:36 AM

I. Subject Matter Jurisdiction:

A. Diversity Jurisdiction (28 USC 1332)

Formatted: Font: Highlight

Formatted: Note Level 1

Defined under:
o Burden of proof is on the party claiming the court has SMJ

Formatted: Highlight

o SMJ cant be waived

o Plaintiff can challenge SMJ
o Courts must bring up SMJ problem if parties dont (sua sponte)
o Statutes/constitutional boundaries on SMJ based on:
Amount in controversy

Type of case (e.g. domestic relations)

Supremacy Clause (US Const. Article VI)

o Howlett v. Rose. Principal of public school illegally searched student (Ps) car.
P sues state and others for violation of federal Civil Rights Act. State only

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Not Italic, Highlight
Formatted: Bullets and Numbering

waives sovereign immunity for state tort actions. Violates Supremacy

Clause to discriminate against federal torts.

Full faith and credit clause (Article IV, sec. 1)

o Hughes v. Fetter. Both P and D Wisconsin residents. P killed in auto accident

Formatted: Font: Times New Roman

Formatted: Font: Bold, Highlight
Formatted: Bullets and Numbering

in Illinois. Administrator of Ps estate sues D in Wisconsin under Illinois

wrongful death statute. Wisconsin law says can only bring wrongful death
actions for deaths occurring in Wisconsin. Wisconsin law violates full faith
and credit clause.
o 28 USC 1332(a) Diversity of citizenship; Amount in Controversy

Formatted: Note Level 2

o Article III,, section 2 of Constitution

o Extends judicial power of the federal courts to nine categories of cases

Formatted: Font: Bold, Highlight

Formatted: Bullets and Numbering

Complete Diversity Requirement

o No diversity of citizenship if any plaintiff in the case is a citizen of the same
state of is a citizen or subject of the same foreign country

Formatted: Font: Bold, Underline

Formatted: Highlight

o Exception

Minimal diversity

Class action greater than $5 million ( 1332(d)(2)(A)

Diversity met if any member of P class is diverse from D

1. Diversity of Citizenship
o Defined:

Formatted: Underline, Highlight

Formatted: Underline
Formatted: Highlight
Formatted: Underline
Formatted: Note Level 5
Formatted: Highlight

citizens of different States

o citizenship
o determined at the time the action is commenced once SMJ has been
established, it will not be affected by a partys change of domicile
o means domicile; mere residence in the State is not sufficient
o the place of his true, fixed and permanent home and principal
establishment
o has the intention of returning whenever he is absent therefrom
o factors of citizenship:

current residence
location of personal or real property
place of employment

personal declaration of domicile (sometimes)

o Mas v. Perry. Tenants spied on by landlord. Husband was French, studying in

Formatted: Font: Bold, Highlight

Formatted: Bullets and Numbering

Formatted: Note Level 3

Formatted: Highlight
Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Bullets and Numbering
Formatted: Font: Bold, Highlight
Formatted: Note Level 4

Formatted: Font: Not Italic

LA. Wife is Mississippi. Married in Mississippi.

o One domicile at a time place of domicile continue until it is definitely
changed
o change of domicile (both needed to change citizenship)
o a. taking up residence in a different domicile with

Formatted: Font: Not Bold, Not Highlight

Formatted: Font: Bold, Highlight

o b. intention to remain there

o evidence of citizenship:

current residence
location of personal or real property
place of employment

personal declaration of domicile (sometimes)

o citizenship of corporation
o state of incorporation: state in which the corporate entity is legally
established
o citizen of every state and foreign state by which it has been incorporated
and of the state or foreign state where is has its principal place of business

Formatted: Font: Bold, Highlight

Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Note Level 3
Formatted: Font: Bold, Highlight

o nerve center = headquarters decision making authority and overall

controlprincipal place of business
nerve center = headquarters decision making authority and
overall control

Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Font: Not Bold, Highlight
Formatted: Highlight
Formatted: Note Level 4

o class action cases

only use the citizenship of named citizen

class action
o determined by the citizenship of the named members of the class bringing
the lawsuit
o class representatives

2. Alienage Jurisdiction ( 1332(a)(2)

o Defined:
citizens of a State and citizens or subjects of a foreign state (28 USC 1332(a)(2)
citizens of different States and in which citizens or subjects of a foreign state are
additional parties (28 USC 1332(a)(3))

Formatted: Highlight
Formatted: Underline, Highlight
Formatted: Bullets and Numbering
Formatted: Underline
Formatted: Note Level 3
Formatted: Highlight
Formatted: Highlight

Formatted: Highlight

o scenarios - diversity?
o P (French) v. D (German) No: no US citizen
o P (CA) v. D (France) Yes
o P (CA) v. D (NY) + D (German) Yes, German citizen is an additional party
o P (CA) v. D (CA) + D (German) No: citizens not different states
o P (French) v. D (NY) + D (German) No usually: foreigners on both sides;
US citizen is an additional party and German citizen is nominal defendant
o P (CA) + P (French) v. D (NY) + D (French) Yes, foreign citizens are
additional parties
o P (CA) + P (French) v. D (CA) + D (French) No; some courts say Yes
o P (CA) v. D (German, perm. Res. CA) No: Gemran citizen is lawfully
admitted for pers. Res. in US and domiciled in the same state

3. Collusive Joinder, Assignment & Nominal Defendants

Defined under 28 USC 1359:

o A district court shall not have jurisdiction of a civil action in which any party,
by assignment or otherwise, has been improperly or collusively made or
joined to invoke jurisdiction of such court

o Factors indicating improper assignment

Assignee is only a nominal party; assignor retains actual, substantial interest
in suit

Formatted: Font: Bold, Highlight

Formatted: Font: Not Bold
Formatted: Bullets and Numbering
Formatted: Font: Not Bold
Formatted: Highlight
Formatted: Note Level 2

Assignee does not possess an independent interest or right of action that

existed prior
o Assignor solicited the assignee to bring suit, contributed to litigation expenses,
or controlled litigation conductassignee becomes the real party in interest and
its citizenship, as opposed to the assignor;s citizenship, will be determiniative

4. Amount in Controversy (at the time the case is filed)

Defined:

Formatted: Highlight

Formatted: Highlight

exceeds the sum or value of $75,000, exclusive of interest and costs (28 USC
1332(a))

AFA Tours v. Whitchurch. Travel and tour business. Whitchurch stole info. Started
own business. Damages were only $50,000. Amount in controversy not satisfied.
o generally no amount requirement for federal question cases
o interest counts only if part of underlying claim
o majority: look at value of injunction of plaintiff (ex: P loses 50K v. D loses 100K
no federal jurisdiction)

Formatted: Highlight
Formatted: Note Level 2
Formatted: Bullets and Numbering

Formatted: Highlight

o minority: look at value of injunction of party seeking injunction; if either D or P

is over $75,000 federal jurisdiction

Formatted: Highlight

o aggregation rules to reach amount in controversy

multiple claims, or multiple parties suing in the same lawsuit
o P (claim 1 + claim 2) v. D = yes

Formatted: Highlight
Formatted: Highlight
Formatted: Highlight

o P (claim 1) v. D1 ad P (claim 2) v. D2 = No

Formatted: Highlight

o P (joint liability) v. D1 + D2 = yes

o P1 + P2 v. D1 + D2 = yes, if Ds are jointly liable and Ps have undivided

Formatted: Highlight
Formatted: Highlight

common interest
o P1 + P2 (joint claim) v. D = yes; uncommon divided interest
o P1 (claim 1) +_ P2 (claim 2) v. D = no
o Liquidated damages
o Agreement: if breach K = pay certain amount (used if actual amount of

Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Highlight
Formatted: Highlight

damages would be hard to determine)

o If party sues for more than liquidated amount, court will overrule
o Punitive damages
o Deter people from harmful actions
o Some courts do not allow
o Amounts not made in good faith
o Plaintiff who files case originally in federal court is adjudged and entitled
to recover less than the sum or value of $75K, the court may deny costs

Formatted: Highlight

Formatted: Highlight

B. Federal Question Jurisdiction

Formatted: Highlight

Formatted: Highlight

1. Constitutional Standard (Article III Sec 2)

o The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States. Defined: US (28
USC 1331)
Not affected by amount in controversy

Formatted: Note Level 1

Formatted: Highlight
Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Highlight

2. Well-Pleaded Complaint
o Defined:

Formatted: Highlight

The federal question must be evident from plaintiffs statement of the cause of
action in a well-pleaded complaintFQJ exists only when the federal alw issue is
presented by P in a well-pleaded complaint

Formatted: Font: Bold, Highlight

Louisvill & Nashville v. Mottley. Plaintiffs were passengers on railroad injured by

negligence released claims for damages in consideration of agreement for

Formatted: Font: Times New Roman

transportation during lives, expressed in contract. no well-pleaded complaint by

Formatted: Font: Times New Roman, Bold

Formatted: Bullets and Numbering

Mottley (breach of contract is state action, not federal)

Consider the necessary elements of Ps cause of action, and not potential

defenses

o What doesnt create FQJ

o Anticipating defenses that raise federal issues
o Defenses in answer that actually raise federal issues
o Counterclaims that raise federal issues
o Plaintiff can choose not to bring a federal cause of action to avoid FJ
Ex: sue for breach of employment contract (state) rather than employment
fairness act (federal)
o Declaratory judgments

Only FQ if the coercive action that would have been brought in the absence of

declaratory judgments would have been a FQ

o Advantages

Jurisdiction determined at outset, rather than future

Consistent with citizenship and amount in controversy

Gives defendant incentive to raise federal defenses

o Disadvantages

State courts decide important federal issues

Waste of time

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

Formatted: Note Level 2

Federal question must appear on the face of the complaint. Declaratory relief,
which by its nature anticipates future action or infringement of rights, cannot be

Formatted: No underline, Highlight

Formatted: Bullets and Numbering

brought under FQJ unless it provides relief under state law.

3. Essential Federal Element Requirement

o Defined:

Formatted: Highlight

Must be necessarily raised, actually disputed, substantial, federal forum may

entertain without disturbing congressionally approved balance of federal and

Formatted: Font: Bold, Highlight

state judicial responsibilities

Discretion to determine whether a federal issue, actually disputed and

substantial, that may be entertained without disturbing any congressionally
approved balance of federal and state responsibilities (Grable)

o Claim under state law may arise under law of US if complaint discloses a need for
determining the meaning or application of such a law

Formatted: Font: Bold

Formatted: Bullets and Numbering

Formatted: Note Level 2

o State cause with federal question

Formatted: Font: Bold

o Jurisdiction if there is a need to interpret or apply the constitution

o Grable v. Darue. Land bought at IRS auction. Darue removed the case to

Formatted: Note Level 3

federal disctrict court, arguing that the case presented a federal question
because Grable's claim depended on an interpretation of federal tax law.

Formatted: Bullets and Numbering

C. Supplemental Jurisdiction

Formatted: Highlight

1. Constitutional Standard
o how federal courts with SMJ over one claim (independent claim) can also get
SMJ over related claims that by themselves are jurisdictionally insufficient (the
supplemental claim) (Gibbs)

Formatted: Note Level 1

Formatted: Font: Not Bold, Italic, No underline

United Mine Workers of America v. Gibbs. However, miners, who were represented
by a local union affiliate of Petitioner, inflicted physical injuries upon Respondent

Formatted: Bullets and Numbering

after learning that Respondent had employed laborers represented by a rival union.
state and federal claimspendent jurisdiction (common nucleus of operative
fact) supplemental jurisdiction
o

common nucleus of operative fact multiple claims

state and federal
o when claims are closely enough related, it is more efficient to hear the claims
together, rather than in different courts

derive from a common nucleus of operative fact

o Examples
o Violates federal statute + state claim
o Diversity jurisdiction: P sues for 100K, D for 5k joined

Formatted: Font: Bold

Formatted: Font: Times New Roman, Bold

Formatted: Note Level 1
Formatted: Font: Bold

o First claim diversity: P (Ca) v. D1 (NY); D1 impleads D2(NY) joined

o Alternatives to supplemental jurisdiction
o Litigate both in state courts (unless fed courts had exclusive jurisdiction over

Formatted: Highlight

fed claim)
o Litigate fed claim in fed court and state claim in state court
o Only litigate fed claim in fed court and drop state claim
o Statute of limitations
o How quickly a case needs to be filed

Formatted: Highlight

o Suit with federal and state claims 2 year limitation

o Case filed with 2 days left, supplemental jurisdiction (federal and sate claims)
state claim dismissed re-filed 2 days + 30 more days

2. Pendent and Ancillary Jurisdiction

o federal issue not resolved early in case
o state issue not substantially predominate
o state claim closely tied to questions of federal policy

3. Modern Supplemental Jurisdiction

Formatted: Highlight

o 28 USC 1367
Finley v United States pendent-party jurisdiction issue (jurisdiction over parties not
named in any claim: tried to amend claim and add San Diego and utility company

Formatted: Font: Italic

wasnt allowed to) common nucleus (husbands death) pendent party

Formatted: Bullets and Numbering

Formatted: Font: Bold

jurisdiction not allowed

o supplemental jurisdiction TEST:
o common nucleus of fact?
o State common nucleus
o go through 1367(c) factors

the supplemental claim raises a novel or compel issue of state law

the supplemental claim substantially predominates over the claims

within original federal jurisdiction

all of the claims within the courts original jurisdiction have been
dismissed

in exceptional circumstances, when there are other compelling

reasons for declining jurisdiction

o mention common nucleus of operative facts interpreted by Gibbs (1367a)
anchor claim: federal question claim of substance
transactionally related: common nucleus of operative facts
claims expected to be heard together

Formatted: Highlight
Formatted: Note Level 2
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Bullets and Numbering

Formatted: Note Level 3

Formatted: Highlight
Formatted: Highlight
Formatted: Highlight
Formatted: Highlight

o diversity-based class actions

only class of the representative matters
generally cant aggregate across plaintiffs

Class Action Fairness Act

$5 million +
minimal diversity

allows Ds to move to federal court

Can use supplemental jurisdiction if facts satisfy requirements for
supplemental jurisdiction

D. Removal Jurisdiction

Formatted: Highlight

Formatted: Note Level 1

1. General Standards of Removability

o defined
D having a case moved to federal court that could have been filed in federal courtany
civil action commenced in a state court that is within the original jurisdiction of a US
district court may generally be removed bu the D to the district court for the district in
which the state court action was commenced ( 1441(a))
o 28 USC 1441(bwhich law to use when transferring:)
o ex: P(CA) v. D(NY) and D(OR) in CA; if filed in NY or OR state court,

Formatted: Font: Bold, Highlight

Formatted: Highlight

cannot be removed to federal court, if bias in Ds favor

limitations
o removal sought solely based on jrusidcito, then the claim may be removed
only if no D is a citizen of the state in which the actionw as filed. (1441(b))

2. Removal and Remand Procedures

28 USCA D who wants to remove a state court action to a federal court must file a
notice of removal with the district court within 30 days after receipt by or service on
that D of the initial pleading or summons (1446)
o removal based on diversity cannot be removed more than a year after the
action is commenced (1446(c))
o 28 USC 1447
o limits on complaint controlling removal

Fictitious defendants: P (CA) v. D (DE, WA) + D (WA) + D (unknown state,

but plaintiff claims CA) citizenship of unknown Ds doesnt count for
removal

Omit federal questions: must be included!

Nominal non-diverse defendant: Rose v. Giammati (person really seeking
injunction is a diverse citizen)

Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Underline, Highlight
Formatted: Note Level 3
Formatted: Highlight
Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Bullets and Numbering
Formatted: Highlight

Fraudulently joining non-diverse defendant

o Well-pleaded complaint rule applies to removal

o Cant remove on the basis of a federal issue in the answer

Formatted: Highlight

o Cant remove on the basis of a counterclaim

Remand
o 1447(c)

3. Removal of Additional Claims

o 28 USC 1441(c)

Formatted: Highlight
Formatted: Underline, Highlight
Formatted: Bullets and Numbering
Formatted: Font: Bold, Highlight
Formatted: Note Level 3
Formatted: Highlight

Venue

9/21/13 11:36 AM
Formatted: Highlight

II. Venue:
A. Original Venue

1. Basic Venue Rules

o location has some logical relationship either to the litigants or to the subject
matter of the dispute
o in addition to satisfying venue rules, the court must have SMJ over the

case andand PJ over the partiesare necessary

Bates v. C & S Adjusters, Inc. Bates (PA); Debtor (PA); C&S (PA); Bates (moves to NY); letter
sent to PA forwarded to NY. substantial part of the events or omission giving rise to the
claim occurred standard is easier to apply than the previous where the claim arose
standard
Local v. transitory

Formatted: Font: Bold, Underline, Highlight

Formatted: Highlight
Formatted: Note Level 1
Formatted: Font: Bold, Highlight

Formatted: Font: Times New Roman, Not

Bold, Italic, No underline
Formatted: Font: Times New Roman
Formatted: Bullets and Numbering

Formatted: Font: Not Bold

Local: involves title to property and is required to be brought in a court where the
property is located

Formatted: Font: Bold, Highlight

Transitory: involves a cause of action based on events that could have taken place
anywhere

Formatted: Font: Bold, Highlight

Formatted: Note Level 2

venue facts
objection to improper venue is waived if not properly asserted (usually determined
at the beginning of the case)

must be right away in the answer

improper venue is okay if there is no objections
motions to transfer venue can be made at any time (usually transferred to another
court in the same judicial system)

may be made at any time (at discretion of the judge)

Venue in Federal Courts:
28 UCS USC 1391
Bates v. C & S Adjusterss. Debt collection company. Sent letter to home, forwarded
to his new home. Substantial part of the events or omissions giving rise to the
claim occurred (Broad interpretation; Substantial part of the events can occur in a
location even unintntionally) Not where the claim arose test.

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight
Formatted: Font: Italic
Formatted: Font: Times New Roman
Formatted: Font: Italic
Formatted: Font: Times New Roman

Debt collection company. Sent letter to home, forwarded to his new home. Substantial

part of the events or omissions giving rise to the claim occurred (Broad interpretation;
Substantial part of the events can occur in a location even unintentionally) Not where the
claim arose test.

Federal Venue Factsvenue is proper on only:

Formatted: Bullets and Numbering

o Judicial district in which any D resides, if all residents reside in the same in

Formatted: Bullets and Numbering

which the district is located

o Judicial district in which a substantial part of the events or omissions on
which the claim is based occurred, or where a substantial part of the
property that is the subject of the action is located
o Improper venue must be asserted by pre-answer motion or in the answer itself,

Formatted: Note Level 3

Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight

or it will be waived
o Federal venue requirements need not be met in

cases that are removed to fed courts

o counterclaims and cross-claims

claims that fall within supplemental jurisdiction

Venue in State Court:

Formatted: Font: Bold, Highlight

Some jurisdictions have one factor as the exclusive basis of venueestablished by

statute

Formatted: Note Level 1

Split:
o some: proper venue where D resides

o some: proper venue is the location where the COA arose or the location of
real property or which the title is at issue
o Some jurisdictions venue is satisfied by one factor
o Factors

Type of action

Type of defendant (person, corporation, govt. entity)

Type of plaintiff

MOST COMMON: where D resides, does business or retains agent (COA

arises out of business)

Where SMJ of action is located (real property)

Where COA arose (e.g. where accident occurred)

Where P resides

Burlington RR v. Ford. 2 railroad employees sue employer (in Montana), but not
incorporated in Montana Yellowstone county. Convenience does not always
have to apply, but must be arguably reasonable for convenience

Formatted: Font: Bold

Formatted: Bullets and Numbering
Formatted: Note Level 3
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight

Formatted: Font: Times New Roman

Formatted: Bullets and Numbering
Formatted: Font: Times New Roman, Bold
Formatted: Font: Times New Roman
Formatted: Font: Times New Roman, Not
Bold, No underline

B. Change of Venue

Formatted: Highlight

Formatted: Font: Bold, Underline, Highlight

1. Determining Available Transferee Courts

change of venue when original venue is proper 1404(a)

28 USCFor the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it

Formatted: Note Level 1

Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Highlight

might have been brought or to any district or division to which all parties have
consented. 1404(a)

Formatted: Highlight

o diversity case: apply the law that would have been applied in the court that
transferred the case

Formatted: Font: Bold, Highlight

o FQ case: apply the law of the court that the case is transferred to
o Forum selection clause: clause is significant, but not determinative

Formatted: Highlight

o No PJ: even if court lacks PJ over D, court is not barred from transferring

Formatted: Highlight

Formatted: Bullets and Numbering

Formatted: Highlight

o Choice of law provisions

new court that the case is transferred to, should apply same substantive law
that the transferring court would have applied
o 28 USCchange of venue when original venue is improper 1406(a)
2. Standards for Venue Transfer
o If Federal court transfers apply the choice of law of the transferee court (where

Formatted: Font: Bold, Highlight

Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Note Level 2

case is transferred to)

o Diversity case: apply the choice of law rules of the state in which it is located,
not the law of the court that transferred the case
o FQ case: district court to which the case is transferred applies the
interpretation of federal law in its circuit court of appeals
C. Forum Non Conveniens
This doctrine allows a court to dismiss an action even if PJ and venue are otherwise proper if
it finds that the forum would be too inconvenient for parties and witnesses and that another, more

Formatted: Bullets and Numbering

Formatted: Underline

Formatted: Underline
Formatted: Highlight
Formatted: Note Level 1
Formatted: Bullets and Numbering

convenient, venue is available

Federal court
o Used only when the forum that is deemed most appropriate for the action is a
state court or a foreign court

Formatted: Highlight

State court
o Factors
Availability of an alternative forum

Formatted: Highlight

Formatted: Bullets and Numbering

Formatted: Font: Not Bold

Formatted: Font: Not Bold, Highlight

The law that will apply

Location of parties, witnesses and evidence

Determine among Ds convenienceDefined:

D can ask court to dismiss the case when the case has little or no connection with the

place where the P has filed it, even though the P meets the PJ and venue requirements.

Formatted: Font: Not Bold, Highlight

Factors
o (1) Interest of the Litigants
Ease of access to sources of proof

Formatted: Note Level 4

Availability of compulsory process for attendance of unwilling witnesses

Cost of obtaining attendance of willing witnesses

Chance for jury to see location (if it would help)

Enforceability of a judgment if one is obtained

o (2) Public interest

Less congested court
o Jury duty and other expenses shouldnt be imposed on a community that has no
relation to the litigation

Local interest in having local controversies decided locally

Diversity cases should tried in the state whose law will apply in the case

Formatted: Bullets and Numbering

Personal Jurisdiction

9/21/13 11:36 AM

III. Personal Jurisdiction

Formatted: Highlight

A. Historical Roots/General

Defined
Jurisdiction over the particular parties or property involved in the casein perosnum
jurisdiction is the power that a court has over an individual party

Formatted: Note Level 1

Formatted: Bullets and Numbering

Types: 1) in perosnum, 2) in rem, 3) quasi in rem

o Plaintiff waives PJ when they file suit

o PJ can be waived

Formatted: Note Level 2

B. Key PJ questions
o 1. What Rrelationship between defendant D and a state to is required for that states
courts to issue judgment enforceable in that state?

Formatted: Underline, Highlight

o Ex: property in state, sued in state depends on contacts with state

o 2. What Rrelationship between defendant D and a state is required for that states
courts to issue a judgment that must be enforced in other states?
o Ex: no property in state, sued in that state depends on contacts with that
state
Pennoyer v. Neff
o PJ over defendant if the following are present (Penoyer v. Neff)
o 1. D was voluntarily physically present in the state when served with
process

voluntary appearance in courOR (personum)

Formatted: Note Level 2

Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Bullets and Numbering

o 2. D consented to jurisdiction in the state

express consent = agreement in advance

Formatted: Font: Bold, Highlight

o 3. D is domiciled in the state with intent to stay; OR

o 43. D owned property in the state (in rem); property owned, but not in dispute

Formatted: Bullets and Numbering

(quasi in rem)

Formatted: Font: Bold, Highlight

Formatted: Note Level 4

Formatted: Highlight
Formatted: Font: Bold, Highlight

1 and 2 = in perosnum jurisdiction

Long-Arm Statutes
o Authorize PJ over non-residents who engage in some activity in the state or
cause some action to occur within the state
o Due Process Clause (US Const. 14th Amendment)
o Nor shall any state deprive any person of life, liberty, or property,

Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Font: Not Bold, Highlight
Formatted: Note Level 3
Formatted: Font: Not Bold
Formatted: Highlight

without due process of law . . . .satisfied if non-resident D has certain

minimum contacts with the forum state such that the maintenance of
the action does not offend traditional notions of fair play and
substantial justice (Intl Shoe)

Formatted: Font: Bold, Highlight

Attachment
o P uses attachment of property as a device to obtain jurisdiction and satisfy the
judgment (Shaffer) claims not related to the ownership of property, there

Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Note Level 3

must be additional minimum contacts

Formatted: Highlight

PJ over Corporations
o Use presence
o Corporations are deemed to be present in a state if they are doing business
in the state

B. Modern Personal Jurisdiction

International Shoe Test

o Due process requires only that in order to subject defendant to judgment in

Formatted: Note Level 1

personum, if he be not present within the terriotry of the forum, he have certain
minimum contacts with it such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice
Formatted: Highlight

C.C. Specific Jurisdiction: Minimum Contacts Analysis

Defined

o doesnt offend traditional notions of fair play and substantial justice to have the
suit tried in that forum
Minimum

Does Cause of Action arise from

contacts test

contacts with the state?

Contacts:

Yes

No

substantial

1) Yes:

2) Maybe:

3) Maybe

4) No

continuous and
systematic
Casual and
sporadic

Reasonableness Factors:
o Convenience for defendant
o Convenience for plaintiff
o States interest
o States interest in providing adequate forum for citizen
o Doesnt upset balance between state and federal court

Formatted: Note Level 2

Minimum Contacts
o Purposeful availment
Ds contacts with forum state must be purposeful and substantial such

Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Font: Not Bold, Highlight

that the D should reasonably anticipate being haled to court there

This is satisfied when the D availed himself of the forum states

Formatted: Font: Bold, Highlight

benefits or the protection of its laws in some way

Formatted: Font: Bold, Highlight

Formatted: Note Level 4

o McGee

Formatted: Font: Italic

single contact where COA arises from contacts with the state PJ
o Hanson

Formatted: Font: Bold

There must be some act by which the D purposefully avails itself of

the privilege of conducting activities within the forum state. Thus

invoking the benefits and protections of its laws

o World-Wide Volkswagen

Purposeful availment needed to establish minimum contacts

sporadic and casual are enough as long as purposeful in the state

Formatted: Font: Italic

Formatted: Highlight

Formatted: Font: Italic

Formatted: Font: Bold, Highlight

o Contract cases

Formatted: Highlight

Burger King (PJ based on contact with FL)

TEST:
o The existence of the K can be a significant factor in determining that
minimum contacts exist

Formatted: Note Level 2

o 1. Minimum contacts test

Purposeful availment and COA arose from contacts
What is purposeful availment (ONLY WITH CONTRACTS)

Formatted: Bullets and Numbering

Formatted: Font: Not Bold
Formatted: Highlight
Formatted: Note Level 3

1. prior negotiations

Formatted: Highlight

2. contemplated future consequences

3. actual course of dealing

Formatted: Highlight

4. terms choice of law provision

o 2. dont offend traditional notions of fair play and substantial justice
1. burden on defendant
2. forum states interest in adjudicating dispute
3. plaintiffs interest
4. interstate judicial systems interest efficiency (i.e. witnesses,
locations, etc.)
5. shared interests of the several states
If the first prong (purposeful availment) is satisfied, the defendant
must provide a compelling argument that it was unreasonable

Formatted: Highlight
Formatted: Highlight
Formatted: Highlight

o Stream of Commerce
o Asahi
1. manufacture product

Formatted: Highlight

Formatted: Highlight

sold (made as a component of other product) sold to make

other product
2. manufacture finished product

Formatted: Highlight

sold to distributor sold to retailer

o First product not sold to end consumer
o Approaches:
SOC

Formatted: Font: Bold, Highlight

putting something into stream of commerce

knowing it will end up in forum state
is purposeful availment
SOC+

Formatted: Font: Bold, Highlight

other factors in addition must show purposeful availment

PLUS:

Formatted: Font: Bold, Highlight

design product for forum state

ads in state
sell product through distributor who acts as sales agent
plus factor is satisfied by the volume, value and hazardous
nature of product

Formatted: Highlight

o Calder Effects Test (intentional torts)

o Personal Jurisdiction exists over
(1) intentional actions
(2) expressly aimed at the forum state
(3) causing harm that the defendant knows is likely to be suffered in
the forum state
Must individually target a known forum resident.
o Internet Contacts
o Merely having a website will not subject a D to process everywhere that the

Formatted: Highlight
Formatted: Bullets and Numbering

site can be viewed.

o Jurisdiction is based over the non-residents website on the degree of
interactivity between the website and the forum

Email and letter and call all have the same weight
Whom initiates the contact is a significant factor

o Circuit courts have generally used a variation of Zippo, requirinreg:

Formatted: Note Level 3

 intentional, forum specific targeting or express aiming at the

forum; and/or

Formatted: Highlight

interactions via the website with residents of the forum state

Some require additional conduct in the forum (some say related
to cause of action)
Factors in targeting or aiming
Disclaimers such as that the website is intended for a limited
geographic audience;
Statements posted on the website directed only at residents of a
limited geographic audience;

Formatted: Highlight
Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

Designing the website so that it wont interact with users of the

forum state;
Use of forum-selection or choice of law agreements.
Zippo - SLIDING SCALE
o PJ: active website; Defendant clearly has business Ks with foreign residents
knowing and repeated transmission of files
o Middle: interactive website; D exchanges information with host computers

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight
Formatted: Highlight

Formatted: Highlight

PJ determined by the level of interactivity and commercial nature of

the exchange
place order on website; post comment, question
not buying something on this site
o No PJ: passive websites; D simoplyly posts information

Formatted: Highlight

accessible to those interested

Reasonableness Factors:
o Once minimum contacts are established, a court must still examine the facts to
determine if maintenance of the action would offend traditional notions of
fair play and substantial justice (Intl. Shoe)
o 1. burden on defendant
o 2. forum states interest in adjudicating dispute
o 3. plaintiffs interest

Formatted: Font: Times New Roman, Highlight

Formatted: Bullets and Numbering
Formatted: Font: Times New Roman
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Italic, Highlight
Formatted: Font: Bold, Highlight
Formatted: Note Level 3

o 4. interstate judicial systems interest efficiency (i.e. witnesses, locations,

etc.)
o 5. shared interests of the several states

PJ over Corporations
o Corporations are deemed to be present in a state if they are doing business

Formatted: Font: Not Bold, No underline

Formatted: Font: Times New Roman, Highlight
Formatted: Font: Times New Roman

o A corporation will be a resident corporation only if it is incorporated in the

forum state
o Any action may be brought against a corporation that is incorporated in the
forum state
o Foreign corporation (not incorporated)
Rules of minimum contacts and substantial fairness apply to a foreign
corporation

In rem jurisdiction
o Authority of court to determine issues concerning rights in property, either
real or personal
o Does not include property brought into a state through fraud
o Property must be present within the forum state
o Notice must be reasonably calculated, under all the circumstances, to apprise

Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Note Level 4
Formatted: Font: Not Bold, No underline
Formatted: Highlight
Formatted: Font: Not Bold, Highlight

Formatted: Highlight
Formatted: Font: Bold, Highlight

interested parties of the pendency of action

o Simply posting notice on property or in newspaper is not sufficient

Formatted: Highlight

o Example: jurisdiction over the property (i.e. $10 million judgment over
$5,000 land only $5,000 enforced)
COA is about interest in the property (claims of real estate)

Formatted: Font: Bold, Not Highlight

deciding who owns property satisfies minimum contacts test

Quasi in rem jursidiciton

o Determines only the interest of the parties to the action regarding property
located in the forum state
o Example: lawsuit about ownership of a car = in rem; i.e. property in the state,
but dispute is not about property = punched in note and sued where defendant
has property, suit is not about the property)

Formatted: Not Highlight

Formatted: Not Highlight
Formatted: Note Level 4
Formatted: Font: Not Bold
Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold

basis in property, but COA is not about ownership of property; COA

Formatted: Note Level 4

relates to duty as a landowner satisfies minimum contacts test

Formatted: Font: Not Bold, No underline

D. Alternatives to Specific Jurisdiction

Formatted: Highlight

Formatted: Underline, Highlight

General Jurisdiction
o Greater contacts than for specific jurisdiction
o Must be substantial, not just continuous and systematic
o Continuous and systematic
o Mere purchases and related trips are not enough
o Mere solicitation, marketing, sales usually not enough
o Most courts: require at least an agent for service of process, local office, or
purchase of business from locale in state

Formatted: Note Level 1

Formatted: Highlight
Formatted: Font: Bold
Formatted: Highlight

o Many courts: find general jurisdiction only in a businesss state of incorporation or

principle place of business

Formatted: Highlight

Helicopteros
o cause of action did not formally arise out of specific activities initiated
by Helicol in the State of Texas, the wrongful death claim is significantly
related to the undisputed contacts between Helicol and the forum

Tests TEST for related contacts

Formatted: Highlight

o 1. but for causation the cause of action would not have occurred but for the Ds
contacts with the forum state

Formatted: Font: Bold, Highlight

o 2. proximate causation the cause of action was proximately caused by the Ds

contacts
o 3. Sliding scale the more contacts, the less causation needed
o sliding scale may eliminate the distinction between specific and general

Formatted: Note Level 1

Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight

jurisdiction

Transient Jurisdiction
o 1. D was physically present in the state when served with process (in personum)

Formatted: Font: Bold, Underline, Highlight

o 2. D consented to jurisdiction in the state; or (in personum)

o 3. D owned property in the state (in rem OR quasi in rem)
In personum jurisdiction over the person judgment could be for any
amount of money (i.e. sue for $10 million and property in state is $5,000

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

can be enforced against all property owned by person)

In rem jurisdiction over the property (i.e. $10 million judgment over
$5,000 land only $5,000 enforced)

Formatted: Bullets and Numbering

Quasi in rem kind of against the property (ownership of the property or

interest in property; i.e. lawsuit about ownership of a car = in rem; i.e.
property in the state, but dispute is not about property = punched in note and
sued where defendant has property, suit is not about the property)

Shaffer v. Heitner
o What satisfies Intl shoe?
In rem

Formatted: Note Level 3

Quasi in rem where Ps claim relates to rights and obligations arising out of
the Ds ownership of local property (e.g., P injure don Ds local property)

o What doesnt satisfy Intl shoe?

Quasi in rem over property where Ps claim is completely unrelated to the

property

Forum Selection Clauses (Consent by contract)

Formatted: Note Level 3

Formatted: Font: Bold, Highlight

Strong presumption of enforceability, especially when the parties to the contract were
both represented by competent counsel and had equal bargaining power automatic PJ
where the clause states there to be jurisdiction

Formatted: Font: Not Bold

Formatted: Bullets and Numbering
Formatted: Font:

o two businesses that draft the clause and show that both parties negotiated it, it
likely enforceable

Carnival Cruise Lines, Inc. v. Shute PJ in FL; Bought ticket in Washington. Forum
selection clause. Injured on cruise. No evidence that Plaintiff set Florida as the
forum as a means of discouraging cruise passengers from pursuing their claims;
policy reasons: customers come from all over the country; by reducing the price of

Formatted: Font: Times New Roman

tickets, it is cheaper for litigation purposes

Formatted: Font: Not Bold

Formatted: Font: Bold, Highlight

Choice of law

If the K contains a choice-of-law provison indicating that the forum states law is to
be used in any action with regard to the K, this will be a significant factor in finding

Formatted: Highlight
Formatted: Bullets and Numbering

jurisdiction, as it establishes that the non-resident purposefully availed itself of the

benefit of the forums laws

: where a particular court should hear the disputes, but does not automatically mean
PJ

Forum selection clause: automatic PJ where the clause states there to be

jurisdiction
o two businesses that draft the clause and show that both parties

Formatted: Font: Bold

negotiated it, it likely enforceable

Generally, person challenging clause must show the clause is unreasonable in the
circumstances of the case, or that it was obtained unfairly:

E. Personal Jurisdiction in Federal Courts (FRCP 4(k)(1))

Formatted: Highlight

Formatted: Highlight

Service of summons in federal action establishes PJ over D who is subject to the

jurisdiction of a court of general jurisdiction in the state where the district court is

Formatted: Font: Not Bold, No underline,

Highlight

located

Formatted: Bullets and Numbering

(1) Serving a summons or filing a waiver of service establishes personal jurisdiction

over a defendant:
o (A) who is subject to the jurisdiction of a court of general jurisdiction in
the state where the district court is located;
o (B) who is a party joined under Rule 14 or 19 and is served within a judicial
district of the United States and not more than 100 miles from where the
summons was issued;
o (C) when authorized by a federal statute.

Formatted: Note Level 2

(2) For a claim that arises under federal law, serving a summons or filing a waiver of
service establishes personal jurisdiction over a defendant if:
o (A) the defendant is not subject to jurisdiction in any states courts of
general jurisdiction; and
o (B) exercising jurisdiction is consistent with the United States Constitution
and laws.
Formatted: Highlight

F. Constitutional Notice Requirements

Notice is reasonable calculated, under all circumstances to apprise interested

parties of the pendency of the action and afford them an opportunity to present

Formatted: Bullets and Numbering

their objections (Mullane)

o Form
Notice through in-person delivery, mail, return receipt requested or
some other reasonable means likely to notify the individual is required

Formatted: Font: Not Bold

What is reasonable under the circumstances

Service of Process (Rule 4)

o Who must serve (4(c))
P is responsible for serving summons and complaint
o Time limit for services (4(m))
P must serve summons/complaint within 120 days after filing
complaint , unless P shows good cause otherwise
o Methods of service

Formatted: Note Level 4

Formatted: Font: Not Bold
Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Note Level 4
Formatted: Font: Not Bold
Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Note Level 4
Formatted: Font: Not Bold
Formatted: Highlight

Inside US (4(e))
Personally serving D

Formatted: Font: Not Bold

Leaving at usual place of abode with person of majority age

Formatted: Font: Not Bold, Highlight

Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Highlight

Outside US (4(f))
Any manner, internationally agreed upon, if reasonable

Formatted: Font: Not Bold, Highlight

Minors (4(g))
according to the law for serving such a person of that state

Formatted: Font: Not Bold

Corporations
Inside US (4(h)(1)(b))

to an officer, managing agent, general agent, or agent

appointed by law

Outside US (4(2)(c)(1))

What is the standard of sufficient notice?

Use methods available for service on individual outside

the US, except person delivery

Formatted: Note Level 5

Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Note Level 5
Formatted: Font: Not Bold
Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Highlight
Formatted: Note Level 6
Formatted: Highlight
Formatted: Note Level 6
Formatted: Font: Bold, Not Italic

o reasonably calculated UNDER ALL THE CIRCUMSTANCES, to apprise

interested parties of the action and give them an
opportunity to object. (fact
specific)
o

in deciding whether the notice was sufficient, and you want them to be notified, the

means employed must be such as one desirous of actually informing the absence might
reasonable adopt to accomplish itpg 169

Mullane v. Central
o
NOTICE WAS NOT REASONABLY CALCULATED NOTICE SHOULD
HAVE BEEN MAILED

to the names and addresses of the names you could find easily; not essential you notify
everyone because every beneficiary has
the same benefit

weighing costs and benefit, reasonably attempt to notify party

Formatted: Font: Times New Roman

Formatted: Note Level 2
Formatted: Bullets and Numbering

Erie Doctrine

9/21/13 11:36 AM

IV. The Erie Doctrine: State Law in Federal Courts

Formatted: Highlight

Overview:

Formatted: Bullets and Numbering

When an action is commenced in US district court, the court must determine the
substantive law and rules of procedure that will govern the action
o Federal Question Claim
Use federal substantive and procedural law
o Federal Diversity Claim

Substantive
Apply substantive state law that would be applied but the state
in which the district court is located

Federal law

Formatted: Font: Not Bold, Underline

Formatted: Font: Not Bold, Underline
Formatted: Font: Not Bold, Underline
Formatted: Font: Not Bold, Underline
Formatted: Font: Not Bold, Underline
Formatted: Font: Not Bold, Underline

Formatted: Font: Not Bold, Underline

Formatted: Note Level 6

even if state rule or statute is in conflict

Formatted: Highlight

If no fed. law applies, follow state law with regard to

substance, but can choose to ignore state procedural law

A. Applicable Law Prior to Erie

Formatted: Note Level 2

If procedural issue is addressed by a valid federal law

(statute, FRCP, FR of Evidence, etc.) use federal law,

No federal law

Formatted: Not Highlight

Formatted: Font: Not Bold, Underline

Procedural

Formatted: Font: Not Bold, Underline

Rules of Decision Act (28 USC 1652)

o The laws of the several states, except where the Constitution or treaties of

Formatted: Font: Not Bold, Underline

Formatted: Font: Not Bold, Underline
Formatted: Note Level 6
Formatted: Font: Not Bold, Underline
Formatted: Highlight
Formatted: Font: Bold, Highlight

the U.S. or Acts of Congress otherwise require or provide, shall be

regarded as rules of decision in civil actions in the courts of the U.S., in
cases where they apply

Swift v. Tyson. The laws of a state are more usually understood to mean the rules and
enactments promulgated by the legislative authority thereof, or long established local

Formatted: Font: Italic

Formatted: Font: Not Italic

customs having the force of laws

Formatted: Font: Italic

n
o The laws of a state are more usually understood to mean the rules and
enactments promulgated by the legislative authority thereof, or long

Formatted: Note Level 1

Formatted: Font: Times New Roman
Formatted: Bullets and Numbering

established local customs having the force of laws

In diversity cases (in federal court)

o Apply federal procedural law
Substantive law:
o If federal question, apply fed law

Formatted: Font: Bold

o If from state constitutions, statutes, or state judicial opinions interpreting

them, apply state law
o If state judicial decisions (common law) on local questions (e.g., real
estate), apply state law
o If state judicial decisions (common law) on general questions, pick best
lawelements of claim/defense
Apply state law in federal court
o Statute if limitations and tolling provisions
Apply state law
o Burden of proof
o Apply law of forum state

Problems with Swift v. Tyson

o Lack of uniformity of law

Formatted: Note Level 4

Formatted: Bullets and Numbering
Formatted: Note Level 4

Formatted: Font: Not Bold

Formatted: Note Level 4

o Inconsistent decisions about what was local v. general Q

o Fed courts failed to develop uniform fed common law
o Even in clearly general Qs, many federal courts used common law decisions
of the jurisdictions in which they sat
o State courts frequently failed to follow federal common law decisions
o Inconsistency of law between federal and state courts encouraged forum
shopping; especially removal by corporate Ds.

Procedural law
o Judge-jury allocation
Jury in diversity case on state law claim = jury decides factual issue

if state law: judge decides

if federal law: jury decides

o Assessment of attorneys fees

Apply federal law
o Equitable versus legal
Apply federal law

Formatted: Bullets and Numbering

Formatted: Font: Not Bold, Underline
Formatted: Font: Not Bold, Underline
Formatted: Underline
Formatted: Note Level 4
Formatted: Font: Not Bold
Formatted: Font: Not Bold, Underline
Formatted: Note Level 4
Formatted: Font: Not Bold, Underline
Formatted: Font: Bold, No underline

B. Establishing Erie Doctrine

Formatted: Note Level 4

Formatted: No underline

Necessary and Proper Clause (Article I, Section 8, Clause 18)

o The Congress shall have power To make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers vested

Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Note Level 1

by this the government of the United States, or in any department or officer thereof

Erie Railroad v. Tompkins

Formatted: Font: Italic, No underline

o Erie abolished federal common law and directs federal courts hearing state
causes of action to apply state substantive law when there is no controlling
federal statute
o Federal courts apply state substantive law

Formatted: Note Level 2

Formatted: Highlight

Formatted: Highlight

o Federal courts allowed to apply federal procedural law

C. Development of Erie

Outcome determinative test:

o deciding whether a piece of state law must be obeyed in federal courtsif the
outcome is substantively the same then the federal court can apply its own rules

Formatted: Note Level 1

instead of state rules

Conflict of law?
o whether judge or jury decides the issue
o if state law: judge decides
o if federal law: jury decides

Guaranty Trust Co. v. York. trustee for some of the note-holders of the Van Sweringen
Corporation (Van Sweringen). Guaranty loaned money to corporations affiliated with Van
Sweringen. Class action on behalf of non-accepting holders for breach of trust because Guaranty
failed to protect the interests of the noteholders and failed to disclose its self-interest when
accepting the offer. Federal Court should follow the NY statute of limitations
o (1) Beginning of the outcome determinative test.

Formatted: No underline
Formatted: Bullets and Numbering
Formatted: Font: Times New Roman

Formatted: Font: Times New Roman, Bold

Formatted: No underline

o (2) Views Erie as an attempt to achieve vertical uniformity

(a) Abandoned Swift v. Tysons goal of horizontal uniformity throughout the fed
court system that had been advocated in.

(b) Reflected desire eliminate major forum shopping incentive between state and
federal courts in diversity citizenship

o (3) Limits on the outcome determinative test:

(a) Fed courts could continue to provide traditional federal equitable

remedies (such as injunctions) modified outcome determinative test
(b) Federal practice in question must significantly affect the lawsuits result

Formatted: Font: Bold

Formatted: Font: Bold

Byrd v. Blue Ridge Rural Electric Co.

Divides state laws into 3 categories (balancing of interest testTEST):

Formatted: Font: Italic, No underline

o (1) Rules defining state rights and obligations (substantive rules).

o (2) Rules bound up with state-created rights and obligations (rules that are
procedural, but serve a substantive purpose)

Formatted: Highlight

o (3) Rules of form and mode (procedural rules)

o If (1) and (2), the fed courts must apply the state rule;

Formatted: Highlight

Formatted: Font: Bold, Highlight

Formatted: Highlight

Formatted: Highlight

o If (3), then only must apply state rule if BOTH:

o (A) failing to do so would produce a substantial likelihood of different
outcomes in the state and fed courts, and
o (B) federal countervailing considerations dont exist that are sufficient to
outweigh the general Erie policy of getting duplicate outcomes between fed
and state actions.
D. The Rules Enabling Act & Modern Erie Doctrine

Formatted: Highlight

Modified Outcome determinative:

under state law, improper service case would be dismissed;

Formatted: Note Level 1

o applying federal law, case would not be dismissed

Twin aims of Erie
o stop forum-shopping
o inequitable administration of the law you dont want a different result

Formatted: Note Level 2

Formatted: Font: Italic, No underline

Hanna v. Plummer. Conflict of law service of process. Summons/complaint: federal

(leave process at home if they have suitable age and discretion) v. state (in-person
service)

1. Does federal statute sufficiently broad to control the issue before the court?
(does statute cover point in dispute)

2. Does statute represent a valid exercise of Congresss authority under the

Constitution? (i.e. is the statute constitutional)

Plummer
Conflict of law service of process

o
Summons/complaint: federal (leave process at home if they have suitable age and
discretion) v. state (in-person service)

Formatted: Note Level 2

Formatted: Font: Italic
Formatted: Highlight

TEST

Formatted: Bullets and Numbering

Federal civil procedure vs. state law

o if direct conflict between state law/fed rule of civil procedure, use fed rule is in scope
of Rules Enabling Act no clash
o Apply state law since there is no federal law on-point

Walker v. Amco Steel

o Oklahoma State Law vs. FRCP Rule 3
o State Statute: case begins when the Defendant is served
o Rule 3: civil action commenced by filing complaint no indication the rule is
intended to toll state statute of limitations

Stewart Organization v. Ricoh

o State law no forum selection clause

Formatted: Bullets and Numbering

Formatted: Font: Bold, Highlight
Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Highlight
Formatted: No underline

o **Federal statute (1404) forum selection clause interest of justice to apply

clause
o **Conflict between federal statute and state law

Test
o Does federal statute sufficiently broad to control the issue before the court? (does
statute cover point in dispute)
o Does statute represent a valid exercise of Congresss authority under the
Constitution? (i.e. is the statute constitutional)

Formatted: Note Level 1

Formatted: Font: Not Bold

Pleading

9/21/13 11:36 AM
Formatted: Highlight

V. Pleading
A. The Complaint

FRCP 8(a)
o (1) a short and plain statement of the grounds for the court's subject matter

Formatted: Highlight

jurisdiction ( because personal jurisdiction can be waived), unless the

court already has jurisdiction and the claim needs no new jurisdictional
support;
o (2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
o (3) a demand for the relief sought, which may include relief in the alternative
or different types of relief.

Damages, injunction, K enforcement

Notice pleading
o all you need to do is give D and court fair notice of the complaint and the grounds
upon which it rests

Formatted: Font: Bold, Highlight

Formatted: Note Level 1

o the purpose of pleadings is to notice the other party about the complaint in the court
so they can defend themselves

Conley Standard:
o If after discovery, there is no evidence of an agreement, the case could be
dismissed, but at the stage of the complaint, the Plaintiff has the right to come up
with the factscomplaints should be dismissed on the basis of the pleadings only if

Formatted: Highlight

it appears beyond a doubt that the plaintiff can prove no set of factswhich
would entitle him to relief (Conley v. Gibson)

Sufficiency of the complaint under Federal Rules

Formatted: Font: Bold

o FRCP 84
o Majority
o Form 11 complaint for negligence

Formatted: Highlight

o Bell Atlantic v. Towmbly

o Complaint dismissed for failure to state a claim
o Conclusory statements and lack of facts

Formatted: Font: Bold, Highlight

Formatted: Highlight

o 8(a)(2) requirements
Need more than labels and conclusions
Need a plausible, not merely a possible, inference, one that rises
above a speculative level.
Plausible: strength of the inference from allegation to
necessary factual conclusion

Formatted: Font: Bold, Highlight

Formatted: Highlight

Facts alleged in Twombly (parallel conduct) do not plausibly

allege an antitrust violation

Iqbal
o P did not state a claim for relief that was plausible on its face
o Expanded authority for judges to dismiss cases that were without merit

Formatted: Bullets and Numbering

Formatted: Highlight
Formatted: Font: Bold

Twiqbal Two-Part TestTEST

Formatted: Note Level 3

1. First, ignore allegations that are no more than conclusions or bare-bones

recitations of the elements of the claim.
o No evidence of agreement

Formatted: No underline, Not Highlight

2. Second, assume as true the remaining well-pleaded factual allegations and

determine whether they state a plausible (not just possible) claim for relief.
o Not the same as probable or possible
o

Formatted: No underline

Formatted: Font: Bold, Underline, Highlight

Formatted: Underline, Highlight
Formatted: Font: Bold, Underline, Highlight

Drafting complaint

Formatted: Font: Bold, Underline, Highlight

Rather than making bare-bones recitations of the elements of the claims, allege
specific facts underlying each element

Formatted: Highlight

Allege facts that make your claim plausible rather than relying on reasonable
inferences are to drawn in favor of the pleader

Formatted: Highlight

Serving the complaint

o FRCP 9(b)

Formatted: Font: Bold, Underline, Highlight

o Form 21 complaint on a claim for debt

FRCP 8
B. Responding to the Complaint
o Summary
Overview of serving process
o 1.File the complaint with the court.

Formatted: Highlight

Formatted: Highlight
Formatted: Note Level 1
Formatted: Bullets and Numbering
Formatted: Font: Bold, Highlight

o 2.This permits you to obtain clerks signature and courts seal on your
summons.
o 3. Next step is to serve process (summons and copy of complaint) on the
defendant(s) . However, (under federal rules) you have the option of
requesting defendant(s) to WAIVE their right to service of process.
o FRCP 4
Different rules apply for serving:
Minors or incompetent persons: Rule 4(g)
Persons in foreign countries: Rule 4(f)
U.S. and its agencies, officers, and employees: Rule 4(i)
State and local governments: Rule 4(j)

Formatted: Highlight

Foreign governments: Rule 4(j)

Defenses and Objections under Rule 12
o 12b
o Rule 12(b)(1): Lack of SMJ

Formatted: Font: Bold, Underline

Formatted: Font: Bold, Underline, Highlight
Formatted: Highlight

o Rule 12(b)(2): Lack of PJ

o Rule 12(b)(3): Lack of venue
o Rule 12(b)(4): Insufficient process
Something in the summons was not sufficient
o Rule 12(b)(5): Insufficient service of process
o Rule 12(b)(6): Failure to state a claim upon which relief can be granted
Twiqbal
o Rule 12(b)(7): Failure to join a party under Rule 19 (i.e., a necessary party)
o 12 e motion for a more definite statement
o Statement is not detailed enough, (claim or answer or counter-claim)
o Complaint must be hopelessly garbled and confused:
Incorporating prior allegations in complaint by reference is fine

Formatted: Font: Bold, Highlight

Formatted: Font: Bold
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold

[Actually is allowed by Rule 10(c)]

Failing to separate claims by counts is fine [even though separation to
promote clarity is urged by Rule 10(b)
o 12 f motion to strike
o 12 g join motions

Formatted: Font: Bold, Highlight

o 12 I hearing before trial

o types of defenses
o Rule 12(b)(1): Lack of SMJ

Formatted: Highlight

o Rule 12(b)(6): Failure to state a claim upon which relief can be granted
o Rule 12(b)(7): Failure to join a party under Rule 19 (i.e., a necessary
party)
6 and 7 cannot be brought up after trial

Answer

Formatted: Font: Bold, Underline, Highlight

o Defenses on merits
o Denying all or some of the allegations in the complaint

Formatted: Font: Bold, Highlight

Formatted: Highlight

Goes through each allegation (either: denies, admits, not enough

facts to answer)
o Affirmative defenses Rule 8(c)
(self-defense, of others, consent, necessity)

Formatted: Font: Bold

Formatted: Font: Bold, Highlight

Zielinski v. Philadelphia Piers. Plaintiff Zielinski sued Philadelphia Piers, Inc.,

Defendant, alleging that a forklift, owned by Defendant, caused Plaintiffs injuries
that occurred when Plaintiff was in a collision with another forklift on a pier. (general

Formatted: Font: Times New Roman, Italic

Formatted: Bullets and Numbering
Formatted: Font: Times New Roman

denial of ownership of the forklift was ineffective specific denial needed; doctrine
of equitable estoppel applies here)
o

Formatted: Font: Not Bold

Denial of allegations - Rule 8(b)

Formatted: Highlight

General deny everything in complaint (D denies each and every allegation in

complaint)

Formatted: Font: Not Bold, Highlight

Specific not intended to deny all allegations (D denies all allegations except the
specific ones)
o In many states, general denial (of general theme) allowed even if some

Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight

allegations are true

o Zielinski v. Philadelphia Piers

Sues company who he thinks owns the forklift

Alleges Johnson is an agent of Philadelphia Pier (sues employer under respondent

superior)

Why his complaint is wrong?

Johnson is not an employee of Philadelphia Piers

P sued wrong company

forklift had PPI initials

statute of limitations ran out (could not sue the Defendant that he should have sued)

Insurance company not harmed because they were responsible for both Philadelphia
Piers and Carload Contractors

Plaintiffs response to answers

Formatted: Font: Bold, Highlight

1. Defendants answer includes neither defenses nor counterclaims

o Plaintiff will not respond.

Formatted: Font: Bold

2. Defendants answer includes defenses but no counterclaims

o Plaintiff may file motion to strike (Rule 12(f))
o Plaintiff usually does nothing
o Court may order plaintiff to reply

Formatted: Font: Bold

3. Defendants answer includes counterclaims

o Plaintiff answers counterclaim

Formatted: Font: Bold

Rule 7(a)(3): Only these pleadings are allowed: . . . . An answer to a

counterclaim designated as a counterclaim
Must deny or admit factual allegations

Formatted: Font: Bold, Highlight

Same objections and defenses are available to plaintiff as are available to

defendants
Defendant cannot respond to reply (not listed in 7(a)). All allegations and
defenses are deemed denied.

C. Amending the Pleadings

o

Summary
15(a)
Party presents evidence not in pleading:

Formatted: Highlight

Formatted: Font: Bold, Highlight

Formatted: Note Level 1

1. opponent expressly consents

o okay treated as if in original pleading
2. opponent implicitly consents (doesnt object)
o treated as if in original pleading
3. opponent objects
o amendment should be allowed freely as long as it goes to merits of case
and does not affect
prejudice

Basic rules governing amendments

Beeck v. Aquaslide. Beeck injured on slide and sued Aqualide. No right to amend
because more than 3 weeks (21 days) past answer. Had they discovered it was not

Formatted: Font: Bold, Underline, Highlight

Formatted: Font: Italic

their slide, they could have amended. May amend if opposing party allows or if court
grants amendment. Beeck doesnt agree to amendment. Aquaslide asks the court to
amend court should freely give leave when justice requires
o

e
Beek injured on slide and sued Aqualide

Not a slide by Aquaslide

Aquaslide amends to deny the slide was manufactured by them

No right to amend because more than 3 weeks (21 days) past answer

Formatted: Font: Times New Roman

Formatted: Bullets and Numbering

Had they discovered it was not their slide, they could have amended
May amend if opposing party allows or if court grants amendment

Beeck doesnt agree to amendment

Aquaslide asks the court to amend court should freely give leave when
justice requires

Relation back to amendments

15(c)(1) New Claim

Formatted: Font: Bold, Underline, Highlight

Relates back to when original pleading was filed

Originally forgotten claim allowed as long as if relates back

Formatted: Font: Bold

A/B = changes claim

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

 C = changes defendant
o party had notice of the lawsuit within 120 days
o known or should have known action would be brought against them
o Krupski v. Costa Crociere. Wanda Krupski, while on a cruise operated by the
Respondent, tripped over a cable and fractured her leg. Upon her return home,
Krupski hired an attorney to assist her in seeking compensation for her injuries.

Formatted: Font: Times New Roman, Italic

Formatted: Bullets and Numbering
Formatted: Font: Times New Roman

(mistake by P, D knew of mistake before statute of limitations ran out, or should have
known there was a mistake)

15(c)(1)(c) New Part

Formatted: Font: Bold, Highlight

15(c)(1)(B) must be satisfied it does relate to original fact pattern

15(c)(1)(C)(i) must not be prejudice Costa Crociere knew about suit because same
attorney
15(c)(1)(C)(ii) must know or should have known that action would be brought, but
for a mistake

Court holding:
-the standard is that the defendant is required to know or should have known
plaintiff made mistake and correcting her indicated that they knew
Policy reason for focusing on D rather than P (pg 487)
This readingpurpose of relation back- balance interest of D protected by
statute

15(d) supplemental pleading

Formatted: Font: Bold, Highlight

setting out any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented
uses
o add to complaint events that happen after the original pleading
o add the complaint events that happened before the original pleading
o correct jurisdictional defects
o Court has discretion in whether to allow supplemental pleadings
D. Ensuring truthful allegations

Formatted: Highlight

Formatted: Font: Bold, Underline, Highlight

Representations in court
o Rule 11 has three components:
o (a)The signature requirement
o (b) Representations represented by the signature

Formatted: Note Level 1

Formatted: Highlight

o (c) Sanctions for violating those promises

Sanctions under Rule 11

Formatted: Font: Bold, Underline, Highlight

Hadges v. Yonkers Racing Corp. Plaintiff sought post-trial relief from Defendant in
federal court arising from litigation that was pending in state court which had been
resolved in another action. Plaintiff represented to the Court that he had not worked in

Formatted: Font: Italic

Formatted: Bullets and Numbering

four years, and that an agency in collaboration with Defendant had barred him from
work. (reverse sanctions against Hadges/Kunster, reversed censure)

Formatted: Font: Bold

o Opponent can seek them by motion, or court can decide on its own to consider them

Formatted: Note Level 2

o Either way, the one who might get sanctioned is entitled to notice and opportunity
to respond

Formatted: Highlight

Formatted: Font: Bold, Highlight

11(c)(4): sanctions must be limited to what suffices to deter repetition of the

conduct or comparable conduct by others similarly situated

o If the sanctions are sought by motion, the motion is to be served but not filed for 21
days.

Purpose: Give the offending party a chance to resolve the problem by

withdrawing or amending the challenged document.

o Hodges v. Yonkers Racing
27 U.S.C. 1927: Attorneys financially responsible for any bad faith litigation
conduct (not just filings) that unnecessarily multiply proceedings

Formatted: Bullets and Numbering

Formatted: Not Highlight
Formatted: Font: Bold, Highlight
Formatted: Note Level 2
Formatted: Highlight

Joinder of Claims and Parties

9/21/13 11:36 AM

VI. Joinder of Claims and Parties

Formatted: Highlight

A. Claim Joinder

Multiple Claims Rule 18

o Joinder rules state when multiple claims and/or parties can be in the same lawsuit.
o Court still must have subject-matter jurisdiction over each claim.a party
asserting a claim may join with it as many independent or alternative

Formatted: Font: Bold, Underline, Highlight

Formatted: Font: Bold, Underline, Highlight
Formatted: Font: Bold, Underline, Highlight
Formatted: Note Level 1

claims of whatever nature as the party may have against the opposing
party
o Efficiency/settlement
o Failure to bring a claim that could have been brought might result in claim
preclusion.
o Claims can be severed or ordered for a separate trail 42(b)

Counterclaims
o A counterclaim is a claim for relief by a defending party against the party who

Formatted: Font: Bold, Highlight

is claiming relief from her

o

Formatted: Note Level 1

Types
o Compulsory Counterclaims 13 (a)
Defendant must bring the claim as a counterclaim. Cannot be
brought as a separate lawsuit.
if tried to bring as counterclaim after suit, the party is not
allowed to later sue

Formatted: Bullets and Numbering

Formatted: Underline, Highlight
Formatted: Underline
Formatted: Font: Bold
Formatted: Font: Bold

If no PJ over second Defendant, the claim cannot be brought as

a counterclaim
If claim is already filed, party does not need to bring a
compulsory counterclaim
o Permissive Counterclaims 13(b)
Defendant may bring the claim as a counterclaim, or instead may
bring as a separate lawsuit

Formatted: Underline, Highlight

Formatted: Font: Bold

can be brought in current suit or later suit, not as a

counterclaim
Even unrelated counterclaims may be brought
o U.S. v. Heyward-Robinson
same transaction or occurrence?
o Courts use four tests for compulsory claims:
1. Are the issues of fact and law raised in the claim and the
counterclaim largely the same?

Formatted: Font: Times New Roman, Highlight

Formatted: Font: Bold

Formatted: Font: Bold, Highlight
Formatted: Font: Bold
Formatted: Highlight
Formatted: Highlight

 2. Would res judicata bar a subsequent suit on the partys

counterclaim, absent the compulsory counterclaim rule?

Formatted: Highlight

3. Will substantially the same evidence support or refute the claim

as well as the counterclaim?

Formatted: Highlight

4. Is there a logical relationship between the claim and the

counterclaim?

Formatted: Highlight

Formatted: Font: Times New Roman, Highlight

The more overlap in the legal and factual issues, the more likely the
court is find it to be same transaction or occurrence.
The test focuses on the underlying events giving rise to the
litigation, not on the partys legal theory or the type of relief
she seeks

Crossclaims 13(g)
o A crossclaim is a claim against a co-party (i.e., by one plaintiff against another

Formatted: Font: Times New Roman

Formatted: Note Level 5

Formatted: Font: Bold, Underline, Highlight

plaintiff, or by a defendant against another defendant)

same side of litigation

suing for indemnification

o no compulsory crossclaims
o Not all crossclaims are permitted

Formatted: Font: Times New Roman

Undermines case against Defendant

o SMJ, PJ, Venue usually satisfied
B. Party Joinder

Formatted: Highlight

Formatted: Note Level 1

Party joinder rules state when multiple parties can be in the same lawsuit
o Suits by P against multiple Ds
o Suits by multiple Ps against D
o Impleader
o Suit by D against third party

Intervention
Third party chooses to enter the litigation, because they have an interest in the suit

Formatted: Font: Bold, Underline, Highlight

o SMJ still needed

Permissive Rule 20
Mosley v. General Motors Corp. 10 plaintiffs want to bring suit together as 1 lawsuit.
GM wants them to severe the counts. 20(a) same general policy of GM regarding

Formatted: Font: Bold, Underline, Highlight

Formatted: Font: Italic

discrimination same transaction/occurrence. 20(b) same question whether there

is a discrimination policy or not
o Rule 20(a) Test

Formatted: Note Level 2

Formatted: Font: Bold, Highlight

o Test for joinder: same transaction, occurrence, or series of transactions

or occurrences and at least one common question of law or fact

Purpose: Allow litigation of related claims together where the overlap in the
evidence on those claims will promote convenience and efficiency

If same transaction, occurrence, or series of transactions or

occurrences is satisfied then there will almost always be a common

Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight

Formatted: Font: Bold

question of law or fact

Third Party
o Impleader - 14(a)(1)
o A defendant causes the joinder of a third party.

Formatted: Font: Bold, Underline, Highlight

Intervention Rule 24 (a)-(b)

o A third party seeks to participate in a case in which they have not been made a party

Formatted: Font: Bold, Underline, Highlight

o NRDC v. U.S. NRC. American Mining Congress and Kerr-McGee Nuclear

Corporation seek to review the order of the United States District Court of the District

Formatted: Font: Italic

Formatted: Highlight

of New Mexico denying their motions to intervene as a matter of right or on a

permissive basis
o Elements of interest
1.Interest in transaction

Formatted: Font: Bold, Highlight

Formatted: Font: Bold

2.Impede/impairment of ability to protect interest

3.Whether or not existing parties can protect interests

sufficient interest

interest relating to the property or transaction that is the subject of the

action n.

Formatted: Bullets and Numbering

factors allowing intervention

o Degree of overlap of the two actions;
o How far along is the action in which intervention in sought
Timely motion the longer to take to get involved, the less likely to

Formatted: Font: Bold, Highlight

Formatted: Note Level 2
Formatted: Font: Bold
Formatted: Font: Bold

be allowed to intervene
o

Impact that intervention would have on the original action

If the intervention is minimal and does not change the process, then
intervention is allowed

Formatted: Font: Bold

Discovery

9/21/13 11:36 AM
Formatted: Highlight

VII. Discovery
A. Scope of Discovery: Relevance

Summary
Process of asking others for potential evidence, backed by the authority of the court to
compel cooperation
Formatted: Highlight

o
B. Limits on scope

Summary 26(b) o Parties may obtain discovery regarding any non-privileged matter that is relevant to
any party's claim or defense main standard
o relevance: anything that makes a fact any more or less likely to be true
o For good cause, the court may order discovery of any matter relevant to the subject
matter involved in the action
o court permission to get evidence of subject matter, but not involved with a

Formatted: Note Level 2

Formatted: Bullets and Numbering
Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Note Level 1
Formatted: Highlight
Formatted: Highlight
Formatted: Highlight
Formatted: Highlight

claim or defense
o Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence
o seek discovery of evidence that would lead to admissible additional
evidence trial

Formatted: Highlight

Good cause
o Good cause exists when a party shows that disclosure will result in a clearly
defined, specific and serious injury, but broad allegations of harm are not
sufficient to establish good cause.

Privilege Rule 501 Rule 501

o Communications between certain classes of people that do not have to be
disclosed in litigation.
o Examples
Attorney-Client, Doctor-Patient, Priest-Penitent, Husband-Wife

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight
Formatted: Note Level 1

o Waiver
o Once privileged information has been voluntarily disclosed, the privilege is
waived as to all communications of the same information
o Attorney-client privilege
o A client's privilege to refuse to disclose, and to prevent any other person from
disclosing, certain confidential communications between the client and his
or her attorney.
o Elements

Formatted: Font: Bold, Highlight

Formatted: Highlight

Formatted: Highlight

 Holder of privilege was a client or prospective client at the time of

the communication
Does not have to formally hire the attorney
Holder was communicating with an attorney (or agent thereof)
acting in capacity as a lawyer
Someone working for the attorney
No third party was also part of the communication (listening, etc.)

Formatted: Highlight

Formatted: Highlight

Formatted: Highlight

If other people are there and they are listening, it is waived

because it is not kept confidential
**Communication was primarily for purposes of obtaining legal

Formatted: Highlight

advice or services
Merely because a lawyer is present, does not mean it is
privileged
Communication not intended to further crime or tort

Formatted: Highlight

Holder has not waived the privilege.

o Work Product 26(b)(3)
o Hickman v. Taylor (the material was privileged). J.M. Taylor sank while
towing a car across the Delaware River. five of the nine crew members

Formatted: Font: Bold, Highlight

Formatted: Font: Italic
Formatted: Bullets and Numbering

drowned. Defendants employed a law firm to defend them against potential

suits by representatives of the deceased crew members and to sue the railroad
for damages to the tug. . the attorney for Defendants privately interviewed
the four survivors and took statements from them with an eye toward
anticipated litigation.
o Rule that protects materials prepared in anticipation of litigation from
discovery.
o Work product must have been prepared in anticipation of litigation.

Formatted: Highlight

Formatted: Highlight

Litigation need not have commenced

o Views
Minority View:
Documents must be prepared primarily or exclusively to
assist in litigation.
Courts differ on whether a specific claim has to be in mind
**Majority Rule
Prepared because of litigation

Formatted: Highlight
Formatted: Highlight

Formatted: Highlight
Formatted: Highlight

 (i.e., if in light of the nature of the document and the factual

situation in the particular case, the document can fairly be said
to have been prepared or obtained because of the prospect of
litigation)
o anticipation of litigation factors
How the document is labeled

Whether a lawyer participated in the preparation

Whether the document comments on litigation

Whether it has an ordinary business purpose

(such as fulfilling regulatory requirements)

o overcoming work product

o Party seeking the material must show:

Formatted: Font: Bold, Highlight

Substantial need for the materials

Relevance is not enough

Desire to avoid overlooking anything is not enough

Needing the materials to establish or defeat an ESSENTIAL

ELEMENT of a claim or defense is enough

o That they cannot, without undue hardship obtain their substantial
equivalent by other means
Examples: Statements of witnesses who are now dead,

Formatted: Font: Bold, Highlight

Formatted: Note Level 3
Formatted: Highlight

Formatted: Highlight
Formatted: Note Level 4

memory-impaired, or beyond the courts reach

o Establishing existence of privilege 26(b)(5)
o Person asserting a privilege has burden of establishing its existence
o Some courts require the party claiming the privilege require to provide

Formatted: Font: Bold, Highlight

Formatted: Font: Bold
Formatted: Font: Bold, Highlight
Formatted: Font: Bold

a privilege log that describes

Describes in detail the document or information sought to be
protected
Describes the reason(s) why the privilege applies
C. Discovery devices

Formatted: Highlight

Formatted: Font: Bold, Highlight

Initial disclosures 26(a)

o Certain information that you have to give to the other party before the case
o Impeachment- try to undermine the credibility of a witness
Production of documents 34(a)
o Documents requests can be focused on particular known items or broadly seek
information in categorical terms.

Formatted: Note Level 1

Formatted: Font: Bold, Highlight

Formatted: Highlight

o Receiving party must either produce the requested material or give grounds for
objection in writing (e.g., privilege, relevance) within thirty days, unless the court or
the parties stipulate to a different time (which often occurs)

Interrogatories 33(a)

Formatted: Font: Bold, Highlight

o Written questions that the opposing party must answer in writing under oath
o Contention interrogatories
Interrogatories that generally require the responding party to state the
basis of particular claims, defenses or contentions made in pleadings
or other documents

Depositions - 32(a); 30(a)

o Attorney questions a party or witness, who must answer under oath
o Purposes
o Discover facts

Formatted: Font: Bold, Highlight

See what a witness saw

o Pin down testimony (so cant change later without looking very bad)
o Preview into how witness will appear at trial

Formatted: Note Level 3

o Preserve testimony of witnesses who may be unavailable at trial

o Authenticate documents (e.g., show it satisfies business records exception to
hearsay rule).

Physical or mental examinations 35

o Physical/mental condition must be in controversy
o Usually not in a K case
o Usually in personal injury case

Formatted: Font: Bold, Highlight

o Must make motion demonstrating good cause

o Need for the information
o Risk and degree of harm to the examinee
o Existence of alternatives
o Not allowed for non-parties who are not in custody or under the legal control of a
party
o Example of exception: minor child involved in custody or paternity suit when
condition or blood type of child is an issue

Requests for admission 36(a)

o Written request that opposing party make a formal admission in writing
o No limit on number
o Can only be given to parties
o Answers

Formatted: Font: Bold, Highlight

Formatted: Highlight

o Object - request must be stated

t
request must be stated

Formatted: Note Level 3

Formatted: Font: Times New Roman

o Admit - conclusively established unless the court, on motion, permits the

admission to be withdrawn
t
conclusively established unless the court, on motion, permits the admission to
be withdrawn

Formatted: Note Level 3

Formatted: Font: Times New Roman

o Deny - lack of knowledge or information

Must state that you have made reasonable inquiryy

lack of knowledge or information

Must state that you have made reasonable inquiry

Formatted: Indent: Left: 1.5", No bullets or

numbering

Disposition without trial

9/21/13 11:36 AM

VIII. Disposition without trial

Formatted: Highlight

A. Summary Judgment Rule 56

Formatted: Highlight

Formatted: Highlight

Formatted: Highlight

Summary 56
o Avoid trial of the whole case or of certain issues (partial summary judgment) if the
record indicates that there is nothing for the fact-finder to decide

Formatted: Note Level 1

o Standard (a)

o Construe all evidence in the light most favorable to the non-moving party
Partial SJ (56(d)(1)):

If SJ is not rendered on the entire action ,the court should, to the extent practicable,
determine what material facts are not genuinely at issue
o No evidence supporting one of the claims

Formatted: Font: Bold, Highlight

Formatted: Note Level 3
Formatted: Bullets and Numbering
Formatted: Font: Bold, Highlight
Formatted: Bullets and Numbering
Formatted: Note Level 3

o summary judgment if the movant shows that there is NO GENUINE

DISPUTE as to any material fact and the movant is entitled to judgment
as a matter of law
In other words, grant summary judgment if no reasonable fact-finder
could find for the non-moving party.
o

Timing (b)

Formatted: Font: Bold, Highlight

Formatted: Highlight

A party may move for summary judgment at any time or until 30 days after the
close of all discovery
o Used if a party opposing SJ had insufficient information to support their

Formatted: Bullets and Numbering

opposition
o

Proof (c)

Formatted: Font: Bold, Highlight

fact cannot be or is genuinely disputed must support the assertion by:

o citing to particular parts of materials in the record

Formatted: Highlight

o showing that the materials cited do not establish the absence or presence
of a genuine dispute

Formatted: Font: Not Italic

Celotex v. Catrett. at trial, P has burden of showing they used Celotex product, after
discovery and there is no proof of use of Celotex products, the defendants do not need
to prove otherwise

Formatted: Font: Times New Roman

The appropriate summary judgment question will be whether the evidence in the
record could support a reasonable jury finding either that the plaintiff has shown
actual malice by clear and convincing evidence or that the plaintiff has not
o Greater than preponderance of evidence standard

Formatted: Font: Not Italic

B. Executive Summary

Formatted: Bullets and Numbering

Formatted: Note Level 3
Formatted: Font: Times New Roman
Formatted: Highlight
Formatted: Font: Not Bold, No underline,
Highlight

A ruling in which the court tells the parties to a dispute what their rights,
responsibilities, or obligations are without awarding damages or ordering the parties
to do (or refrain from doing) anything.

Formatted: Note Level 2

Trials

9/21/13 11:36 AM
Formatted: Highlight

IX. Trials
A. Phases of Trial

Civil Trial Procedure Part I

o Jury selection (Voir Dire) (if jury trial)

Formatted: Note Level 1

o Opening statement from each party

Civil Trial Procedure Part II
o Plaintiffs case through direct examination of witnesses (defendant may crossexamine; plaintiff may re-examine)
o defendants case through direct examination (and P may cross-examine, and D may
re-examine)

Civil Trial Procedure Part II

Formatted: Font: Times New Roman

o Closing arguments by each party (summarizes its case)

o Judge gives jury instructions (jury charge) regarding substantive law it should
apply
o Jury verdict
B. Judicial Control of the Verdict

Overview
o Motions to dismiss under Rule 12(b)(6) (complaint fails to state a claim)

Formatted: Highlight
Formatted: Note Level 1

o Motion for summary judgment under Rule 56

o (no genuine issue of material fact remains to be litigated)

1. Judgment as a matter of law (can be done in the middle of trialdirected

verdict) (Rule 50)
o once a party has been fully heard on an issue at jury trial, the court may grant
a motion for judgment as a matter of law (JMOL) resolving the issue against a
party if the court finds that there is insufficient evidence for a jury

Formatted: Highlight
Formatted: Highlight
Formatted: Note Level 3
Formatted: Bullets and Numbering
Formatted: Font: Bold, Highlight

reasonably to find for that party.

o JMOL may be entered by the court sua sponte, without a motion, after the
party has been fully heard on an issue but before the case has been submitted
to the jury
o Court views the evidence in the light most favorable to the opposing party,
and:
o evidence is insufficient for a reasonable jury to reach a verdict for the
other party

The court Ddoes not weigh the evidence

Disregards all evidence favorable to the moving party

CourtD does not judge the credibility of the witnesses

Formatted: Highlight
Formatted: Highlight
Formatted: Bullets and Numbering

Court construes all reasonable doubts against the movant

If the court grants a motion for JMOL, the court takes the case from the jury
and decides itgrants judgmentas a matter of law.

Formatted: Note Level 3

o Reeves v. Sanderson Plumbing

court must draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence.
Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not
those of a judge.
INTERPRETS FRCP 50 NOT BINDING ON STATE COURTS

Renewed Motion for Judgment as Matter of Law FRCP Rule 50(b)

(aka Judgment Notwithstanding the Verdict (JNOV)
o If the court does not grant a JMOL, the court is considered to have submitted
the action to the jury subject to the courts later deciding the legal questions

Formatted: Highlight
Formatted: Highlight
Formatted: Highlight
Formatted: Not Highlight
Formatted: Bullets and Numbering

raised by the motion

o Movant may file a JNOV no later than 28 days after the entry of judgment

Formatted: Font: Bold

Summary
o Judges are reluctant to grant Judgments as Matter of Law [Rule 50(a) motions]
o Judges are less reluctant to grant renewed motion under Rule 50(b)

Formatted: Note Level 1

o Why not grant summary judgment earlier instead?

Might have had little discovery

Trial testimony might have been weaker than deposition testimony

2. New trials Rule 59

o Grounds for ordering a new trial
Substantive the verdict was wrong

Jurys verdict was against the great weight of the evidence

Excessive damages

Procedural something wrong with the process

Erroneous admission or exclusion of evidence

Erroneous jury instructions apply the wrong law

Conduct of trial was unfair (e.g., attorneys closing argument
appealed to racial or religious prejudice)
Jury misconduct
Newly discovered evidence that existed at the time of trial was
overlooked and would have altered the outcome

Formatted: Font: Bold, Highlight

Formatted: Font: Times New Roman
Formatted: Font: Bold
Formatted: Highlight
Formatted: Bullets and Numbering
Formatted: Font: Bold
Formatted: Note Level 5
Formatted: Font: Times New Roman, Bold
Formatted: Highlight
Formatted: Highlight
Formatted: Font: Bold
Formatted: Font: Bold
Formatted: Font: Times New Roman
Formatted: Note Level 6, Outline numbered +
Level: 5 + Numbering Style: Bullet + Aligned at:
2" + Tab after: 2" + Indent at: 2.25"

remittur
o if court determines that a verdict was excessive, the court may offer a
reduction of the verdict, and grant a new trial on the condition that the
remittur is not accepeted
additur
o Court gives defendant the option of paying more than the verdict or having
a new trial.

Formatted: Highlight

o Dadurian v. Underwriters at Lloyds

against the great weight of the evidence

no reasonable jury would find the conclusion correct
o Weisgram v. Marley Co.

Formatted: Font: Times New Roman, Bold,

Highlight

o
o
o Standard for a new trial

Formatted: Font: Times New Roman, Highlight

Judge is shocked that the damages were so low, new trial unless D
agrees to pay

o Not allowed in federal court

Formatted: Note Level 5

Formatted: Note Level 5, Indent: Left: 2"
Formatted: Bullets and Numbering
Formatted: Font: Bold
Formatted: Font: Bold
Formatted: Font: Times New Roman
Formatted: Font: Bold, Highlight
Formatted: Note Level 2
Formatted: Bullets and Numbering
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Bold, Highlight

 timing
50(b), (c), (e)

b: the movant may file a renewed motion for judgment as a matter of law and
may include an alternative or joint request for a new trial under Rule 59

Formatted: Highlight
Formatted: Font: Bold
Formatted: Font: Bold

o new trial is less desirable, but more likely that judgment will be granted

c: (1) In General. If the court grants a renewed motion for judgment as a matter of
law, it must also conditionally rule on any motion for a new trial by determining
whether a new trial should be granted if the judgment is later vacated or reversed (if
appellate court overturns). The court must state the grounds for conditionally
granting or denying the motion for a new trial.

Formatted: Font: Times New Roman, Not Bold

Formatted: Font: Times New Roman
Formatted: Font: Times New Roman, Not Bold
Formatted: Font: Times New Roman
Formatted: Font: Times New Roman, Not Bold
Formatted: Font: Times New Roman

e: If the court denies the motion for judgment as a matter of law, the prevailing
party may, as appellee (plaintiff), assert grounds entitling it to a new trial should the
appellate court conclude that the trial court erred in denying the motion. If the
appellate court reverses the judgment, it may order a new trial, direct the trial court to
determine whether a new trial should be granted, or direct the entry of judgment.
o If appellate court decides JMOL, P can order a new trial as an alternative

Formatted: Font: Times New Roman, Bold

Judgment: Preclusion Doctrine ADD TO NOTES9/21/13 11:36 AM

X. Judgment: Preclusion Doctrine

Formatted: Highlight

A. Claim Preclusion (Res Judicata)

Formatted: Highlight

Sum

Formatted: Font: Bold, Highlight

The final judgment on the merits of an action precludes the parties from successive
litigation of an identical claim in a subsequent action

cannot re-litigate claims that they fully litigated (or could have fully litigated) in a
previous case

Claim preclusion doesnt apply to

Retrials ordered by appellate court

Collateral proceedings (e.g., action to enforce a judgment in a court in another state)

Criminal cases, but Fifth Amendments Double Jeopardy Clause precludes an

acquitted defendant from being retried for the same offense.

Formatted: Note Level 1

Formatted: Bullets and Numbering
Formatted: Font: Bold
Formatted: Font: Bold
Formatted: Note Level 2
Formatted: Font: Bold, Highlight

Asserting claim preclusion

Claim preclusion is an affirmative defense that may be waived if not raised in a

responsive pleading FRCP 8(c)
o Argue that it was already litigated

Formatted: Highlight

Exception
o Courts may raise it sua sponte in special circumstances, e.g., court knows it
has already decided the claim.

Formatted: Highlight

Formatted: Highlight

Requirements

Prior suit concluded in a valid, final judgment "on the merits"

The claims in the subsequent suit (second suit) either
o are the same as in the prior suit, or
have been available to the plaintiff in prior suit (i.e., could have
raised it in the prior suit),

and meet transactional test.

transactional test
o Many courts refer to same nucleus of operative facts (i.e. supplemental
jurisdiction test).
o Common factors examined
Whether underlying facts in prior and subsequent suits are related in
time, space, origin, or motivation

Formatted: Font: Not Bold, Highlight

Formatted: Highlight
Formatted: Font: Bold
Formatted: Highlight
Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

all or any part of the transaction, or series of connected

transactions, out of which the action arose

Formatted: Font: Bold, Highlight

Whether the claims form a convenient trial unit

Formatted: Font: Times New Roman

Formatted: Highlight
Formatted: Font: Not Bold, Highlight
Formatted: Font: Not Bold
Formatted: Highlight

Whether treatment as a unit conforms to parties expectations or

business understanding

o could have been raised in the prior suit

Same Parties requirement

o The parties in the subsequent suit either are

the same as those in the prior suit, or

in privity with a party in the prior suit

privity: whatever a court says that a claim could not be
precluded

if party has an agreement to be bound by what is

decided
pre-existing substantive legal relationship (i.e. draw
legal boundaries of property someone who buys
your home cannot re-litigate where the boundary lines

Formatted: Font: Bold, Highlight

Formatted: Note Level 4
Formatted: Highlight
Formatted: Highlight
Formatted: Highlight
Formatted: Font: Not Bold
Formatted: Font: Not Bold
Formatted: Font: Times New Roman
Formatted: Bullets and Numbering
Formatted: Font: Times New Roman
Formatted: Font: Times New Roman, Highlight
Formatted: Font: Bold, Highlight
Formatted: Font: Not Bold
Formatted: Font: Times New Roman, Bold,
Highlight

bankruptcy proceedings

valid, final judgment on merits

o

Valid judgment on motions

Prior judgment generally is not valid if subject matter jurisdiction, personal
jurisdiction, or venue was lacking.
o Exception: the defendant responded to the lawsuit and both parties litigated
the case without raising the jurisdictional problem. (e.g., Des Moines
Navigation)
o But, there are exceptions to the exception (e.g., state court decides a case
with exclusive federal subject matter jurisdiction)
Final Judgment

Formatted: Font: Times New Roman

represented by someone with the same interest (i.e.

class action in which you are a member of that class, if
class action suit was lost cannot bring suit)

o Taylor v. Sturgell

Formatted: Highlight

are to be drawn)

o not extended to virtual representation

Formatted: Font: Not Bold

Most courts say a trial court judgment is final even if is being appealed
Nothing further for the court to do but to order entry of judgment

Formatted: Font: Not Bold

Formatted: Font: Times New Roman, Bold,
Highlight
Formatted: Font: Not Bold
Formatted: Font: Times New Roman, Bold,
Highlight
Formatted: Font: Not Bold
Formatted: Font: Times New Roman, Bold,
Highlight
Formatted: Note Level 6
Formatted: Font: Times New Roman, Highlight
Formatted: Font: Bold, Highlight
Formatted: Note Level 1
Formatted: Bullets and Numbering
Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

Formatted: Font: Bold, Highlight

Formatted: Note Level 2

o If prior judgment is later overturned on appeal, party can usually set aside the
second courts claim preclusion dismissal by filing a post-judgment motion or
timely appeal
o In reality, courts generally wait until appeals process on first case is finished
before deciding whether claim preclusion applies (can stay the first case)
o File one lawsuit lose appeal file second lawsuit other party
motions for claim preclusion stay

Formatted: Font: Not Bold, No underline

Formatted: Highlight

On the Merits

BUT COURTS DO NOT REQUIRE IT TO BE ON THE MERITS

Examples of not on the merits
o lack of SMJ and PJ, Improper venue

Formatted: Font: Not Bold, Highlight

Examples of on the merits

o Jury or bench trial verdict

Formatted: Font: Times New Roman, Bold,

Highlight

Formatted: Font: Bold

Formatted: Font: Times New Roman

o Summary judgments no evidence that a reasonable jury could conclude

Formatted: Font: Times New Roman

o Judgments as a matter of law collected evidece, trial, no reasonable jury can

find for Plaintiffs

Formatted: Font: Times New Roman

o Failure to state a claim (sometimes) Twombly

No legal basis for claim

If not enough detail, and more detail can be added (not on the
merits) - Twiqbal

Formatted: Font: Times New Roman

o Default judgments (most courts)

o Statute of limitations (trend toward this)
B. Issue Preclusion (Collateral Estoppel)
Precludes the re-litigation of issues of fact or law that have already been necessarily determined
by a judge or jury as part of an earlier claim

Formatted: Font: Not Bold, No underline

Formatted: Highlight
Formatted: Note Level 1
Formatted: Bullets and Numbering

Does not require strict mutuality of parties, but only that the party against whom the issue is to
be precluded must have been a party to the original action
offensive use of collateral estoppel is permitted
requirements

same issue
o the issue sought to be precluded must be the same as that involved in the prior
action

Formatted: Highlight
Formatted: Font: Bold, Highlight
Formatted: Highlight

Formatted: Font: Bold

o facts relevant tot the particular issue and the applicable law must be identical

actually litigated
o the issue must have been actually litigated in the prior action

Formatted: Highlight

final, valid, judgment

Formatted: Highlight

o the issue must have been determined by a valid and binding final judgment

essential to the judgment

o the determination of the issue must have been essential to the prior judgment

an issue that constitutes a necessary component of the decision reached will be

considered essential to the judgmentIntroduction to issue preclusion
Hot issue preclusion differs from claim preclusion

Elements of issue preclusion and its exceptions

Formatted: Highlight
Formatted: Font: Bold

Formatted: Font: Times New Roman

Formatted: Font: Times New Roman, Bold