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11/30/2011 12:44:00 PM
Word List
Attachment
Cause of action
Choice of law
Common law
Constructive service
Counterclaim
Cross-claim
Declaratory judgment
Demurrer
Directed verdict
Discovery
Erie
Fact pleading
Federal question
jurisdiction
Forum non conveniens
General jurisdiction
In rem
In personam
Interpleader
Interrogatories
Judgment as a matter of
law
Judgment N.O.V.
Klaxon rule
Long-arm statute
Motion to dismiss
Notice pleading
Personal jurisdiction
Personal service
Preliminary injunction
Quasi in rem
Remittitur
Res judicata
Rules Enabling Act
Rules of Decision Act
Service of process
Special appearance
Specific jurisdiction
Summary judgment
Temporary restraining
order
Transfer of venue
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Civil Procedure: What is it?
Civil Procedure deals with procedure, not substance. Civil Procedure focuses
on rules. Civil Procedure is the study of the principles surrounding the
resolution of civil disputes by the courts and the various tools available to alawyer who must bring or defend a lawsuit. FRCP Rule 1 – The rules are
meant to ensure just , speedy , and inexpensive lawsuits. “Fair, fast, and
cheap.”
Fairman says that it’s all a balancing test between efficiency and equity. We
want to do things cheaply, yet fairly. There are elements of this balance
either explicitly in the courts’ opinions or the statutes that courts apply or
embedded in the decisions that have to be made.
The five themes
Judicial power – Who has it? What courts have power to adjudicate disputes
(i.e. jurisdiction)?
Dispute parameters – How do we take big cases and winnow them down into
what’s actually going to get tried, if they get tried? The tools of setting these
parameters are all procedural.
Obtaining finality – The more that happens to a lawsuit in different courts,the harder it is to undo.
Costs – Every lawsuit has its costs, monetary or non-monetary.
Balance between equity and efficiency – cheap & quick and fair are at
odds. We can have more of one or more of the other…we need to make
tradeoffs.
The five pedagogical objectives
Identify and apply “Black Letter” procedural rules – some rules is rules (c.f.
FRCP Rule 8). Know them.
Determine the doctrinal and policy implications of the rules.
Understand the theoretical implications of the rules. We want to find truth, if
there is a truth. We let them sue now, and find truth later.
Develop a critical perspective: how do we limit frivolous lawsuits?
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Skill: be able to read cases critically for procedural issues. In this course,
we’re concerned with procedure and not substance.
Personal jurisdiction
Pennoyer v. Neff – When does a state have appropriate jurisdiction over an
out-of-state defendant? Pennoyer asks: Is it there? Pennoyer introduces
three basic concepts that are still important today: (1) Power – jurisdiction is
power, and the power of states or other jurisdictions (federal courts) to
make you do what you might otherwise not do; plus limits to that power
imposed by the Constitution itself. (2) Consent – If you consent to
jurisdiction, these black and white rules go out the window. (3) Notice – the
“concealed” strand of Pennoyer . This will eventually become a constitutional
requirement. At the time of Pennoyer , we have sort of a duality of
notice. For in personam jurisdiction, you need personal service of process
within the state. For in rem or quasi in rem actions, you can be served by
publication.
In rem – an in rem is an action where the court is trying to decide the rights
in a piece of property itself (in the thing). In personam – This is also known
as personal jurisdiction. This has to do with jurisdiction over a person and
their personal rights and liabilities. Conceptually, think of in rem as land. If you stop thinking about in rem as land, you’ll get in trouble.
Quasi in rem – determines the rights of a person in a thing. Not the rights
of the world in a thing, but the rights of specific individuals in a thing. There
are two kinds of quasi in rem: (1) True quasi in rem: trying to secure a
preexisting claim in the property, or extinguish someone else’s. (2)
Substitute for personal jurisdiction where you apply a defendant’s property
to satisfy a claim that is unrelated to property.
Collateral attack – means you start a second suit to challenge the judgment
of the first suit. In collateral attack, you wait for them to come and get your
property, but then you argue: “They can’t have my property! The first
lawsuit wasn’t valid because they didn’t have jurisdiction!” Why use
collateral attack from a strategic standpoint? It’s cheaper than hiring an out-
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of-state lawyer to argue on your behalf. If that state tries to enforce the
judgment, they’ll have to try to enforce it in your state.
Harris v. Balk – This case would be decided differently today. Epstein sues
in Maryland to get Harris to pay him. Then Balk sues Harris in NorthCarolina. Harris’s defense is that he’s already paid his debt to Epstein, such
that Balk should get his money back from Epstein. What must the
jurisdictional issues be? North Carolina, the Supreme Court rules, must
enforce the Maryland judgment, because personal jurisdiction was obtained
over Balk when Harris entered Maryland.
We’re trying to figure out if debts are a personal obligation or in
rem obligations. The Court says that the debt travels with the debtor,
making the creditor subject to personal jurisdiction wherever the debtor
goes. If one is a creditor, that sucks because if you lend people money, and
then you’re subject to personal jurisdiction wherever that person goes, and
thus you might get sued anywhere that debtor goes. I, the creditor, am in
big trouble!
Hess v. Pawloski – An out-of-state defendant gets into an accident. In order
for the person who got hit in Massachusetts to sue, they must serve the
person that hit them personally in Massachusetts. So, Massachusetts passesa statute that says that when you drive on Massachusetts roads, you
implicitly consent to Massachusetts jurisdiction. This case would be decided
the same way today.
Minimum contacts
International Shoe Co. v. Washington – Shoe introduced our modern concept
of personal jurisdiction, which involves “minimum contacts” and “traditional
notions of substantive justice and fair play”. Shoe asks: Is it fair ?
Under what conditions is a corporation subject to personal jurisdiction in a
particular state? The Court interprets the due process clause and the
Fourteenth Amendment to mean that if a company has “minimum contacts”
in a state, they may be subject to being sued in that state.
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What is the modern test? We have a brand new test for personal
jurisdiction! It’s the minimum contacts test . If the defendant is out of state,
yet has certain minimum contacts within a jurisdiction, we will determine
whether that court has personal jurisdiction based on “traditional notions of
fair play and substantial justice”.
Expanding Shoe to cover in rem
Shaffer v. Heitner – Shaffer seeks to make Shoe the standard for more or
less all jurisdictional questions. In a quasi in rem action, specific jurisdiction
depends on how closely related the defendant’s contact to the forum is to
the claim itself. Does the Delaware court have jurisdiction over the
defendants or their property or both? NEW RULE! The Shoe model should be
applied to jurisdiction in rem as well as in personam. Shoe seems to deal
with in personam jurisdiction rather than in rem jurisdiction. The present
case is about in rem jurisdiction, therefore, on its face, Shoe doesn’t seem to
apply to Shaffer .
Pennoyer + Harris = if we attach the property at the start of the lawsuit, and
the property is located within the jurisdiction of the forum, then the forum
has in rem jurisdiction. Now , the Court says that Shoe rules everything
and Harris v. Balk is explicitly overruled! However, the basic
principles of Pennoyer are not overruled.
What’s the rationale? Jurisdiction “over a thing” is sort of a euphemism for
jurisdiction “over the interests of a person in a thing”. Everything is owned
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by somebody, so whatever or wherever the property is, we’re really trying to
get power over the person through their stuff.
Is the location of the stuff relevant anymore? The test of Shoe is “minimum
contacts” such that the suit does not offend the notions of “fair play” and “substantial justice”. So the location of the stuff is relevant in so far as it is a
contact .In rem gave property a special status; Shoe says that property
is just another contact , nothing special. We’ll just add it into the mix. The
Court says that it would be unusual for a state not to have jurisdiction in a
controversy over some land in a state, because that land is what it’ s all
about and would constitute sufficient contacts.
After Shaffer , we will still see courts talking about in rem and quasi in
rem. The law says that all assertions of jurisdiction must be made according
to Shoe. Shoe, in turn, encompasses in personam, in rem, and quasi in
rem. UnderShoe, you don’t need to attach property to
satisfy Constitutional jurisdictional principles. State law might establish other
requirements when you file a lawsuit over some property. In practice, you
really should attach the property.
Specific jurisdiction
Specific jurisdiction is jurisdiction over a specific claim in question, though
not necessarily other claims.
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McGee v. International Life Insurance Co. – If the contact between the
defendant and the state of California is minimal, such contact must
be closely related to the claim in order for the state of California to have
jurisdiction. In other cases, we’ve heard a lot about the defendant’s interest,
but in this case we hear a lot more about the plaintiff ’s interest and the
state’s interest. Stevie Y. describes McGee as the “outer extreme” of
jurisdictional aggressiveness.
Hanson v. Denckla – Are there sufficient contacts between the defendant
and the forum for the state to have specific jurisdiction? If there are only
minimal contacts between a state and a defendant, then the contacts must
be closely related to the claim. Mere contracting is not enough to establish
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personal jurisdiction. There must be more in the way of contacts. As we
move beyond McGee and Hanson, we’ll see the Court sort of back off from
having such limited contacts constitute jurisdiction. Justice Warren suggests
that the defendant must act to “ purposefully avail ” himself of the “privilege
of conducting activities within that state”.
Is this “stuff”, the transacting of business and sending of money between
the Delaware trustee and the now dead lady in Florida sufficient to establish
minimum contacts? The Court concludes that it is not enough. The Court
concludes there is no personal jurisdiction in Florida over
the Delaware trustee. The Court applies the minimum contacts test just like
in McGee.
World-Wide Volkswagen Corp. v. Woodson – Can a state court exercise in
personam jurisdiction over a nonresident corporation when the only
connection between the defendants and the forum is that one of their
products ended up in the forum state? In order for a state court to
exercise in personam jurisdiction over a defendant, there must exist
minimum contacts between the defendant, forum, and claim. The key to the
case: Does the test of minimum contacts a one-part test or a two-part test?
Justice White says that the main functions of the Shoe test are (1) to protectthe defendant against having to litigate in far-off lands and (2) to keep the
states’ power in line. The first function is known as the “convenience” prong
of Shoe. The second function is known as the “sovereignty” prong.
The five fair play factors
Asahi Metal Industry Co. v. Superior Court – Asahi is the case that makes
the five factor test law . In World-Wide, it’s only dicta. On an exam, know
and go through all five prongs. However, the big three are the first three,
where the defendant’s burden is primary. (1) Burden on the defendant –
burdens on corporate defendants tend to be diluted as compared to burdens
on individual defendants. (2) The state’s interest – what interests does the
forum have in having that litigation in that state as far as protecting its
citizens and corporations? (3) The plaintiff’s interest – everyone would prefer
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to sue in their own forum. (4) Interstate efficiency interest – is this forum
better, more efficient, more expedient, or cheaper than any other forum? It
is rare that jurisdiction in a case turns on efficiency, because it can usually
be argued both ways. (5) Interstate policy interest – this would be a
stretch. The Courts of Appeals these days tend to lump this and efficiencytogether.
Note that these factors have nothing to do with minimum contacts, but
rather with “traditional notions of fair play & substantial justice”. Justice
White implies that “minimum contacts” is the threshold , and thus if you
don’t have contacts, you never get to fair play. But what do we need in
terms of contacts to meet the threshold? The court never gives us a clear
definition of “minimum contacts”.
“Stream of commerce” and “stream of commerce plus”
One camp in the Court believes that putting something in the stream of
commerce does constitute purposeful availment. What O’Connor says,
however, is that if you only put something in the stream of commerce but
don’t do any more, it’s not an act of purposeful availment. O’Connor needs
additional conduct to meet her standard: “stream-of-commerce plus”. For
example: (1) Designing a product for a forum state, (2) advertising to aforum state, (3) providing customer service in the forum state, or (4)
marketing the product through sales agents in the forum state. This is not
an exhaustive list, and it’s not the law of the land.
Burger King Corp. v. Rudzewicz – Does Rudzewicz’s contract with Burger
King evince substantial ties to the state of Florida? In considering whether a
contract creates a contact, there are four factors to be considered: (1) The
nature of prior negotiations between the parties, (2) the “contemplated
future consequences” of entering into the contract, (3) the terms of the
contract, and (4) the course of dealing between the parties. There’s one
thing we know for sure from this case: Simply making a contract with an
out-of-state defendant is not enough to create sufficient contacts.
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For our purposes, we may think about specific jurisdiction as a two-part
test: (1) Check for minimum contacts, then go on to (2) fair play and
substantial justice. We’re two years before Asahi , which reasserts this
threshold test.However, the Court also says “If it’s really, really fair to
exercise jurisdiction, we can let it slide by with less contacts than wenormally would.”
Rule 4(k)(2)
A federal court can generally hale a defendant if state courts in the state
where the federal court is located also have personal jurisdiction over that
defendant. In other words, the federal court’s jurisdictional reach is equal to
that of a trial court (a court of general jurisdiction) in that state.
The thing that really interests Fairman is Rule 4(k)(2): If you’ve got
minimum contacts and fair play, then you can summon or take a waiver of
service from somebody who can’t be brought into any state’s trial court
(court of general jurisdiction). There could be foreign defendants, let’s say
businesses, that aren’t subject to the general jurisdiction of a specific state
court. That means it lacks minimum contacts with any one state. However,
maybe you have minimumaggregated contacts with the country
overall. “This is a weird rule!” It posits an exception to our usual territorialconcept of personal jurisdiction.
Personal jurisdiction on the internet
The “Zippo” test has been adopted by most courts of appeal. Zippo does to
Internet cases what other cases have done to other industries. You might
use “stream of commerce” for manufacturing; with Internet stuff, you
use Zippo.Zippo proposes that there is a spectrum of websites from
“passive” to “active”. Active websites sell things, while passive websites just
show you stuff. There’s no personal jurisdiction if a site is passive. There is
personal jurisdiction if the site is active. However, in reality, everything is
intermediate and you must do a factual analysis as to the level of
interactivity of the site and the jurisdictional consequences that follow.
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General jurisdiction
General jurisdiction is usually easy! It’s hard to find hard cases on general
jurisdiction. Specific jurisdiction is the easy route; general jurisdiction is the
hard route. General jurisdiction requires continuous and systematic contacts. You must have more of a relationship with a forum to constitute
general jurisdiction than to be subject to specific jurisdiction. Think of
general jurisdiction as “super contacts”.
Washington Equipment Manufacturing Co. v. Concrete Placing Co. – The
defendant corporation is based in Idaho. To do business in Washington, it
had to obtain a certificate of authority and register an authorized agent. Did
the defendant consent to general personal jurisdiction when it got the
certificate and registered an agent? NEW RULE! In Washington, by statute,
compliance with mandatory requirements in order to do business
in Washington does not impose personal jurisdiction on a foreign
corporation.
Helicopteros v. Hall – Is it consistent with the Due Process Clause of the
Fourteenth Amendment for Texas to assert personal jurisdiction
over Helicol? Blackmun looks at the contacts individually and determines
that each one in isolation is not continuous and systematic, thus there is notgeneral jurisdiction. Fairman suggests that Blackmun should have looked at
the contacts in toto. Here’s the problem: you can look at the contacts apart
or together, and depending on how you do it, you’ll get to a different result.
In this case, the Supreme Court gives us its only statement on the
distinction between general and specific jurisdiction. We knew that
in Perkins there were enough contacts, while in Rosenberg there
were not enough contacts. InHelicopteros, the four contacts mentioned
are not enough for jurisdiction.
For specific jurisdiction, we have minimum contacts and fair play. For
general jurisdiction, we continuous and systematic contacts, but is there a
parallel fair play standard in general jurisdiction? You should argue the fair
play aspect even when dealing with general jurisdiction.
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Transient jurisdiction
Burnham v. Superior Court – The rule is: if you’re temporarily in the forum,
and I can serve you, I gotcha! While Mr. Burnham, the appellant, wasin California briefly he was served process. If a defendant is served process
within a state’s borders, does due process require a connection between the
lawsuit and the defendant’s contacts within the state? The rule is eazy . If we
serve you in our state, we gotcha.
Consent – forum selection clauses
Carnival Cruise Lines, Inc. v. Shute – The Shutes went on a cruise. On the
ticket, there was a forum selection clause that said any litigation related to
the cruise must be tried in Florida. Is the forum selection clause
enforceable? Courts have the responsibility to determine whether forum
selection clauses in form passage contracts are fair. Forum selection clauses
are considered permissible in this context for several policy reasons. The
ultimate question is one of “fundamental fairness”. We won’t allow the cruise
line to select a forum with the purpose of discouraging legitimate
lawsuits. “Basically, forum selection clauses are good law .”
Notice – service of process
Mullane took us into a different constitutional issue that is closely related to,
though not identical to, personal jurisdiction: notice. The result in Mullane is
that the lawsuit gets dismissed not because the forum didn’t have
jurisdiction over the defendants, but rather because the defendants were not
given adequate notice. Service of process is the method by which you notify
someone about a lawsuit. Process is the papers themselves. By FRCP Rule
12, you can get cases dismissed by invalid service of process or invalid
process.
Mullane v. Central Hanover Bank & Trust Co. – May a state constitutionally
dispense with personal service of process even if it knows how to contact a
defendant? A method of service of process must either be (1) “reasonably
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certain” to provide actual notice, or (2) the lesser of several evils, that is, a
“feasible” form of notice that is “not substantially less likely” to give actual
notice than other options.
This is a classic in rem type case. The Court says we could probably have inrem jurisdiction. (Note that this case comes before Shaffer .) They basically
say that if the process is decent, states will have jurisdiction. They base this
view of jurisdiction, including transient jurisdiction, more or less on
tradition. Yeazell calls this “jurisdiction by necessity”.
What are the elements of due process in this context? The defendant
must know about the suit and be able to defend himself . How do we decide if
notice is constitutionally okay? The notice must be “reasonably calculated,
under all circumstances, to apprise interested parties of the pendency of the
action”. It will depend on the circumstances! The Court says publication
notice is not reasonably calculated to inform them of their rights if you know
who they are and where they live.
How do we do notice today? We do certified mail with a receipt request. This
is certainly “reasonably calculated”. That doesn’t mean that you have to do it
that way. FRCP Rule 4 tells you the different ways you can serve process.
Rule 4(d)
What do you do if you want to commence a suit with minimum cost? There
is an appendix of forms attached to the Federal Rules so that you don’t have
to make up your own forms. What’s in the form just comes right out of what
the rule itself says. Form 1-A is the “Notice of Lawsuit” and Form 1-B is the
form that the defendant signs and returns. So you ask for the waiver of
service under Rule 4.
What would happen if the defendant ignored the requested waiver of
summons? You don’t have to waive, but there is an incentive for you to
waive. You get more time to respond if you waive, and there is also a lower
cost. The defendant has a duty to avoid unnecessary costs; if you don’t
waive, those costs will be imposed on you. What are those costs? It’s the
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cost of hiring a process server, like a magistrate, sheriff, or a private
server. This may cost several hundred dollars. Costs and fees are two
different things, so far as we’re going to think about it for now.
“Long-arm” statutes
These statutes establish a subset of the scope of personal jurisdiction that
the Constitution allows. If a state chooses, they can make their authority
coextensive with the Due Process Clause: “The long-arm statute of the state
of X is coextensive with the Due Process Clause of the Constitution.”
The first question you should ask when you are dealing with issues of
personal jurisdiction is: Does it satisfy the long-arm statute? If the answer is
“no”, then you’re done. If the answer is “yes”, then you move to Due
Process. Courts will avoid ruling on constitutional questions when it can.
So, the long-arm statute offers a threshold test . You always look at it first,
because it is no wider than the constitutional limit of the state’s authority. If
a long-arm statute partially busts out of Due Process, you may need to go to
the next level to make sure that the statute itself is constitutional.
Gibbons v. Brown – Does the Florida “Long-Arm” statute give the state jurisdiction over Gibbons? Florida shall have jurisdiction over a defendant
who is “engaged in substantial and not isolated activity” in Florida. This is
construed to be a higher standard than the federal constitutional one. The
question is whether the “long-arm” statute in Florida gives the state
jurisdiction over Gibbons for the purposes of the suit. “This case is irrelevant
to the scheme of jurisprudence in this country.” It’s a “piddley little case out
of an intermediate court in Florida”.
Venue – § 1391
Venue specifies a specific court within a jurisdiction where parties can
litigate. For example, let’s say you know you have jurisdiction in Texas, but
there are four federal district courts there. Venue tells you
where exactly you’re going to do your trial.
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Why do we have venue? It helps select where a case can be properly
brought. Isn’t that precisely what personal jurisdiction does? If we
eliminated venue altogether, we wouldn’t have too many problems since
personal jurisdiction is pretty well-developed.
Where does venue fit into our decision tree of jurisdiction? What about
notice and forum non conveniens? Are they preliminary matters, or matters
to be determined after the jurisdictional analysis? Fairman says that it
doesn’t matter much. He says that venue will almost always come after
jurisdiction because no jurisdiction usually means improper venue too. In
other words, the venue test often collapses into the tests for personal
jurisdiction.
We will look at the federal venue statute, 28 U.S.C. § 1391, as a model for
all venue statutes. Part (a) deals with diversity-only claims. Part (b) deals
with not-diversity , or “federal question” -type cases. Part (c) is a special
provision for corporate defendants which says that venue basically collapses
into personal jurisdiction.. Part (d) is all about aliens. Parts (e) and (f) are all
about governments.
There is a rule that is not in the statute: “Venue for one is venue forall.” The exception is in the case that follows, where even though the venue
is appropriate for the foreign defendants, it may not be appropriate for the
domestic defendants. Furthermore, just because an alien defendant can be
sued in any district doesn’t mean there will be personal jurisdiction over
them in any district. This is analogous to the provision that collapses venue
and personal jurisdiction for corporations.
Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. – The plaintiffs are American
companies suing foreign companies. The defendants challenged personal
jurisdiction and venue. Is venue proper in the Eastern District of
Virginia? The foreign defendants may be sued in any district. The American
distributors can only be sued in districts where they can be “found”. The
court looks at the contacts of the American defendants in Virginia and finds
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that some of the American distributors can be found in the Eastern District of
Virginia, though some may only be found in the Western District of Virginia.
In a diversity action, we would use state law. However, in this international
anti-trust case, they look to the federal statute, which is the Clayton Act. Wecan also look at FRCP Rule 4(k)(2), which has a provision for defendants
without contacts with any one state sufficient to constitute jurisdiction.
Forum non conveniens
Piper Aircraft v. Reyno – Should the trial court be allowed to issue a forum
non conveniens dismissal? A court has the authority to decline jurisdiction if
the suit may be brought more appropriately in another forum. Marshall says
that you can’t weigh the “change of law” effect on the plaintiff that heavily in
deciding whether to grant a forum non conveniens dismissal. He says that it
can be an element in the decision, but it’s not the end of the
story. Marshall says, therefore, that you can argue for a more convenient
forum even when that forum would have law that is less favorable to the
plaintiff.
The Gilbert balancing test is the black letter law of forum non conveniens. It
weighs “private” and “public” factors. The private factors are: (1) Therelative ease of access to proof, (2) the availability of witness subpoenas,
(3) the cost of getting witnesses, and (4) the possibility of viewing of the
premises if called for. The public factors are: (1) Court congestion, (2) local
interest in having local controversies decided at “home”, (3) the forum’s
familiarity with substantive law, and (4) unfairness of burdening citizens with
jury duty for case unrelated to forum. Compare this to the “five factor” test
for “fair play” that comes out of World-Wide.
Everything we have done in the course up to now can be trumped by a
forum non conveniens motion. You can say: I have power, there is proper
notice, Due Process is satisfied. However, I’m not going to try this
case. Courts have the power to do this. It’s sort of like saying now that
we’ve balanced everything, let’s balance again with an even mushier
standard.
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Transfer of venue – §§ 1404, 1406, and 1631
Under 28 U.S.C. § 1404, you can only transfer a case to a district court that
has personal jurisdiction and venue. This provision sort of “bootstraps” thevenue statute: 28 U.S.C. § 1391. The test in § 1404 is whether the current
court is: (1) Convenient to the parties, (2) convenient to the witnesses, and
(3) “in the interest of justice”. This sounds a little bit like
the Gilbert test. This is sort of like an inter-court forum non conveniens. This
is a soft test that allows the court a lot of discretion. In a practical sense,
what will happen with these litigants?
28 U.S.C. § 1406 says that if you mess up and file in the wrong venue, they
can just transfer it over rather than dismiss the claim. Also, under 28 U.S.C.
§ 1631, you can transfer for want of jurisdiction.
Subject matter jurisdiction
Not every court can hear every kind of case. Some are courts of general
jurisdiction, which can hear basically any kind of case except if a statute or
legal precedent says they can’t. Some are courts of limited jurisdiction, so
called because the statutes that set them up say exactly what kind of casesthey are limited to.
Every state has at least one court of general jurisdiction. In each state, there
are courts of limited (subject matter) jurisdiction and general (subject
matter) jurisdiction. Make sure to distinguish this from general (personal)
jurisdiction.
On the other hand, federal courts are limited by the Constitution. It’s up to
Congress to decide just how narrow to make the jurisdiction of federal
courts, but it can’t be any wider than what the Constitution says. The two
main cases where a federal court has jurisdiction are (1) those that are
about federal “stuff” like the Constitution or federal laws, or (2) cases that
are between citizens of different states and involve over $75,000 (currently)
up for grabs.
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Is the federal court the only court that can hear a case? This introduces the
idea of exclusive versus concurrent jurisdiction. Most things that the federal
government creates causes of action for can be heard in state courts, and
we call this concurrent jurisdiction. An example of exclusive jurisdiction ispatents! On the other hand, an example of concurrent jurisdiction is
trademarks.
Federal subject matter jurisdiction does not replace personal
jurisdiction. You must have both of them. For a federal court to have the
power to enter a binding judgment, it needs personal and subject matter
jurisdiction. Why do you have to have both? They come from different parts
of the Constitution. Subject matter jurisdiction comes from Article III, while
personal jurisdiction stems from Due Process in the Fourteenth
Amendment. Compare Rule 12(b)(1) (subject matter jurisdiction) to Rule
12(b)(2) (personal jurisdiction).
Where does all this subject matter jurisdiction come from? There are three
“tiers” of federal subject matter jurisdiction: The constitutional tier – Article
III provides jurisdiction for the federal courts. This Article enumerates all the
things that the federal courts may (not must ) have jurisdiction over. That is,
just because the Constitution allows the federal courts to have jurisdictioncertain things it doesn’t mean that Congress must allow federal courts to
have jurisdiction over all of those things. The statutory tier – For example,
28 U.S.C. § 1331 gives the federal courts jurisdiction over “federal
questions”. The general idea is that Congress can proscribe some subset of
the federal court jurisdiction that the Constitution provides. The decisional
tier – For example, Mottley interprets the constitutional and statutory
language.
Federal question jurisdiction – § 1331
Louisville & Nashville Railroad v. Mottley – Did the federal district court have
subject matter jurisdiction over the case? A suit arises under the
Constitution and laws of the United States only if the original statement of
the plaintiff’s cause of action shows that it is based on the Constitution or
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federal statutes. (In other words, a federal court can’t have jurisdiction just
because the defendant might use a federal law or the Constitution to defend
himself.)
The well-pleaded complaint rule
The well-pleaded complaint rule talks only about the complaint. We look for
a federal question on the face of the complaint. If the federal complaint, as
filed by the plaintiff , does not state the federal question, then there is no
federal question. This is an efficiency rule! You get tons of cases filed every
day in federal court, and we need a good solid rule to be able to tell, from
the outset , whether or not we have jurisdiction.
Why are anticipated defenses not good enough? It’s related to the efficiency
argument. A good lawyer can make a lot of different federal arguments that
the defense could make. But the other side might not make that
argument . In fact, sometimes they will strategically not make that
argument.
Constitutional versus statutory power
The language in the Constitution and in the current federal question
jurisdiction statute is the same. They both say “arising under”. But what theSupreme Court tells us is that this phrases doesn’t mean the same thing in
these two documents! How come?
Under the statute, the federal question must “arise under” a well-pleaded
complaint . You sort of read “well-pleaded complaint” into the statute. This is
what allows the Mottleys’ state case to ultimately be heard on appeal by the
Supreme Court.
Think of two concentric circles. The Mottleys’ case falls under Article III,
which means that the Supreme Court can hear it. However, it does not fall
under 28 U.S.C. § 1331, therefore, the lower federal courts do not have
subject matter jurisdiction. Is this madness? How can we justify the
Supreme Court having power over the Mottleys’ case on appeal from state
court, but not on appeal from federal court?
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Congress could provide for original federal jurisdiction over the Mottleys’
claim. We could make the statutory limits coequal to the constitutional
limits. For example, you could add the words “or defense” to the language of
§ 1331.Would that be constitutional? Sure! The Constitution doesn’t haveanything like a “well-pleaded complaint rule”. Congress has basically chosen
not to do this.
The language “arising under” that we find in the Constitution and in the
statute can have different meanings. In particular, we read the “well-pleaded
complaint rule” into the statute. Mottley is an example of federal “arising
under” jurisdiction.
Diversity jurisdiction – § 1332
Why diversity jurisdiction? The courts and Congress have tried to limit
diversity jurisdiction in three different ways. Congress could conceivably do
away with diversity jurisdiction altogether. We keep diversity jurisdiction
around for reasons of tradition as much as anything. Also, litigating in
federal court is desirable, and lawyers like having the option of getting their
cases into federal court through diversity jurisdiction.
Where does diversity jurisdiction come from? First off, from the
Constitution. Then there’s a statute that authorizes that authority to the
federal court. This is 28 U.S.C. § 1332. You need to allege over $75,000 in
damages in order to qualify for diversity jurisdiction. (At the time, it was
$10,000.) The simple matter is that your petition will simply allege that the
matter in controversy is greater than $75,000. Make the defendants argue
against jurisdiction. Your claim will be accepted on its face unless the
complaint plainly contradicts this.
§ 1332 is grounded in the constitutional idea that home state defendants
have some kind of advantage, and so out-of-state plaintiffs would be left at
a disadvantaged if forced to litigate in out-of-state forums. On the other
hand, we don’t let everything go into federal court, because it would be
inefficient. Therefore, we have the “amount-in-controversy” limitation to
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screen out unimportant cases. The statute also involves the “complete
diversity” rule, which says we can’t have participants from the same state on
the same side of the “v”.
The rule of complete diversity
No party on one side may be a citizen of the same state as any party on the
other side. The rule of complete diversity is to diversity jurisdiction as the
well-pleaded complaint rule is to federal question jurisdiction. It is a rule that
comes from the interpretation of the relevant federal law (§ 1332) rather
than from the Constitution.
Mas v. Perry – Complete diversity of the parties is required in order for
diversity jurisdiction to exist, meaning that no party on one side may be a
citizen of the same state as any party on the other side. If the amount in
controversy is greater than $75,000, then yes, 28 U.S.C. § 1332(a)(2)
allows diversity jurisdiction over a case where one party is a U.S. citizen and
the other is a foreign citizen. Notice that § 1332(a) tells us that an alien who
has been admitted as a permanent resident is considered a citizen of the
state where they are domiciled.
How do we figure out someone’s citizenship? We determine citizenship bydetermining domicile. Domicile, in turns, means (1) residence plus (2) intent
to remain. Where are you? Do you intend to stay there?
Saadeh v. Farouki – The defendant is a permanent resident of the United
States residing in Maryland but whose citizenship is
Jordanian. Did Farouki qualify as a “citizen of a State” under 28 U.S.C. §
1332(a)? The statute states that at least one of the parties in a dispute must
be a “citizen of a State” in order for the federal courts to have diversity
jurisdiction. Furthermore, the statute says that for the purposes of the
section in question “an alien admitted to the United States for permanent
residence shall be deemed a citizen of the State in which such alien is
domiciled”. The court chooses to liberally interpret the statute because it
feels that a literal reading would cause an undesirable and unintended
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result, that is, that federal diversity jurisdiction could exist over a dispute
involving only foreign litigants.
The court uses the legislative history to interpret the amendment to the
statute as a move to narrow federal diversity jurisdiction ratherthan broaden it. The statute apparently was intended to reduce the federal
caseload. The court finds that the statute was intended to eliminate federal
diversity jurisdiction between a United States citizen and a resident alien
living in the same state as that United States citizen.
All the stuff in § 1332 is predicated by the requirement that the amount in
controversy must exceed $75,000. This amount has changed over time to
(somewhat) keep pace with inflation. It started out at $500 and was most
recently raised from $50,000 to $75,000 in 1997. What is the purpose of
increasing the amount in controversy? This will limit the federal caseload.
Injunctions and aggregation
Injunctions don’t ask for a dollar value. How do you assign a dollar value to
determine whether the value is great enough to get you into federal
court? (1) What’s the value of the injunction to the plaintiff? (2) What’s the
cost to the defendant to comply with the injunction? (3) What’s value or costto the party that invoked federal jurisdiction (i.e. the plaintiff filing or the
defendant removing)? Or any of the above!
How can you aggregate plaintiffs’ claims? Can you add up claims to get over
the $75,000 benchmark? It’s confusing, but there are some basic rules that
you can use. (1) Single plaintiffs can aggregate against single defendants. It
doesn’t matter if your various claims are unrelated. (2) Multiple plaintiffs
can’t aggregate unless you come under the exception below. (3) The Rule
of Zahn says that in a diversity class action, every class member must have
a claim in excess of $75,000, unless courts find that § 1367 changes this
rule. (4) If a counterclaim is compulsory, it can be heard regardless of the
amount. If the counterclaim is permissive, it needs to have an independent
jurisdictional basis. If there’s a counterclaim that is permissive rather
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than compulsory , that is, one that could be brought separately (e.g. in state
court), then you’d need an “independent basis for jurisdiction”.
Supplemental jurisdiction – § 1367
To this point, we’ve looked at several ways the courts and Congress have
tried to limit the number of cases getting into federal courts. Now, we’re
going to take things that wouldn’t ordinarily be in federal court and see if we
can find a basis for getting them in.
United Mine Workers v. Gibbs – Gibbs had a federal claim and a state tort
claim. He has a “mixed body” of claims, and the Supreme Court lets him
bring them all together in federal court even though constitutionally he
couldn’t bring the state tort claim separately. What is it about this “clump” of
federal and state claims that makes it constitutional for the federal courts to
hear it? Gibbs is a constitutional case. Gibbs says that Article III’s delegation
of federal judicial power relates to cases and controversies rather
than claims.
Brennan says: “The state and federal claims must derive from a common
nucleus of operative fact ” in order to lasso them in using supplemental
jurisdiction. We look at claims and think about whether we would normallyexpect to try them together in the same judicial proceeding. Is it efficient to
try these claims together? Will the jury get confused from using two bodies
of law at once?
28 U.S.C. § 1367 takes the concepts from Gibbs and tries to apply them to
provide for the same kind of supplemental jurisdiction. Stuff that arises from
the same claim or controversy comes into play under § 1367(a).
Finley v. United States – This is what used to be called a “pendant party”
claim. The plaintiffs sue both the FAA and the electric company. The plaintiff
and the power company are non-diverse parties. The Supreme Court said
thatFinley barred pendant party jurisdiction unless there was an independent
basis for it. When Congress drafted § 1367, they tried to undo the result
in Finley and allow that type of claim to go forward. So if a similar case
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would come up today, we would look at § 1367 and see that pendant party
jurisdiction is okay under § 1367(a).
But we’ve got problems! 28 U.S.C. § 1367(b) – This is difficult, bad, nasty,
and poorly drafted according to Fairman. What this sub-section tries to do isto protect complete diversity . It takes away supplemental jurisdiction under
certain circumstances. If jurisdiction is founded solely on diversity, then
district courts shall not have supplemental jurisdiction…under certain
circumstances. The statute says, “Let’s bring a case together that’s all one
case based on diversity. On the other hand, let’s take out of that pool those
cases that wouldn’t have subject matter jurisdiction under the rule of
complete diversity.”
Owen Equipment & Erection Co. v. Kroger – In Owen v. Kroger , the Supreme
Court says that the state law negligence claim of Kroger against Owen
cannot go forward in federal court against a non-diverse party. Would §
1367(b) allow this suit to go forward? The statute would deny supplemental
jurisdiction because it is a suit by a plaintiff against a party that is joined
under Rule 14. (The power company joins Owen under Rule 14.) The
drafters create this statute based on claims by a plaintiff, and then they
enumerate specific rules. Thus, they screw up, because they don’t
understand how litigants’ positions may change during litigation.
We talked about the Rule of Zahn in relation to the class action rules. To
have a federal class action, you would have to have every single class
member have more than $75,000 in claims. Does § 1367 change this
result? Yes, because class actions are Rule 23, which isn’t part of the list in §
1367 of kind of joinder-type-stuff to be excluded. This leads many to say
that the Rule of Zahn is now…gone!
28 U.S.C. § 1367(c) – This is probably the most screwed-up procedural
statute. Congress is fine with this statute, but there are unanswered
questions about it and it is controversial.
So the supplement jurisdiction statute is a mess. But Fairman wants us to
know how the statute is supposed to work . § 1367(a)
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codifies Gibbs and Finley , and § 1367(b) takes away part of the
supplemental jurisdiction based on diversity. But we won’t need to know the
complicated, nitty-gritty weird stuff that we talked about earlier. They didn’t
intend to revoke the Rule of Zahn, but oops, they did.
What about removed cases? Do they have a place in § 1367(b)? Something
that has been removed is there theoretically based not only on § 1332 (the
diversity jurisdiction statute), but also § 1441 (the removal statute). Some
courts believe this, but some don’t.
The old terminology of supplemental jurisdiction
These concepts are old and have been subsumed by § 1367, but we need to
know the old stuff because there are a lot of old lawyers and judges out
there who only know the old way of doing things. Pendant jurisdiction – If
you have federal question jurisdiction to anchor the case, and you have an
additional state law claim, then, provided that the claims come out of a
“common nucleus of operative fact”, then you can hear them together. This
is essentially the situation in Gibbs. Ancillary jurisdiction – If you have
diversity jurisdiction, will it cover additional claims over other parties? Let’s
say you have a good federal diversity claim, but the defendant makes a
third-party claim against a third-party defendant who is not diverse. Pendant party jurisdiction – If you have federal question jurisdiction, can you make
state law claims against additional parties if the claims come out of a
“common nucleus of operative fact”.
Removal jurisdiction – §§ 1441 and 1446
Removal jurisdiction – the defendant’s forum selection – has a
statutory rubric that embodies a balancing test. In § 1441(a), we let
defendants remove to a federal forum if they could have originally been
brought there. The reason is simple: equity. Yet, we’ll place efficiency
limitations on that: you have 30 days to do it. We also have statutory
controls that say if you have an in-state defendant, that will anchor the
claim and make it non-removable. This is in part a matter of efficiency, but
it’s also equity because a defendant in their home state court shouldn’t
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complain about being in their home state because it gives them an
advantage.
28 U.S.C. § 1441 is the main statute for granting removal. Subsection (a)
says the defendant (and only the defendant) can take an action that could have been filed in federal court and put it in federal court. Subsection (b)
tells us that when federal courts have jurisdiction under a federal question,
you don’t have to worry about citizenship. On the other hand , if the federal
basis is diversity , you can’t remove if there is a home state
defendant . Strategically, plaintiffs will try to sue home state defendants to
anchor the case in state court if that’s what you desire.
28 U.S.C. § 1446 gives the procedure for removal. The procedure
is fast . The defendant signs a notice for removal that’s short and sweet. The
“then and now” rule says that you must allege that the amount in
controversy is over $75,000 both “then and now”. The defendant has to file
the notice within 30 days of the filing of the lawsuit. Most of this will be
eaten up by the client’s waffling.
Caterpillar, Inc. v. Lewis – If there isn’t complete diversity between the
parties at the time of removal and the federal courts hear the case anyway,
are their subsequent rulings still good given that there was completediversity of the parties at the time of trial ? Once a case comes to trial in
federal court, general efficiency considerations will trump fairness
considerations in specific cases. You must have jurisdiction at the time the
action is initiated . Allowing this case to go forward violates this fundamental
rule.
The original lawsuit was anchored to state court in two ways: you both had
non-diverse defendants, and a home-state defendant. Is this removal
proper? No. There is Kentucky on both sides of the controversy. This is a
wrongful removal!
What the Supreme Court says (wrongly, according to Fairman), is that once
the case has been tried in district court, you can’t go back due to efficiency
grounds. Caterpillar should not have removed the case; the district court
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should not have accepted jurisdiction. However, it is argued that time cures
all ills because by the time of the trial the parties were diverse. The rule is
that you look at the time that the lawsuit is filed.
The Erie Problem
Erie tells us we’ll look at the law of the state for the rules for making basic
decisions in diversity cases in federal court. As Erie evolves into the choice
between “substance” and “procedure”, we get more balancing tests. Under
the Byrd analysis, we have to balance the federal interest against the state
interest. The rubric Byrd provided got us to the Guaranty
Trust question. Hanna allows us to balance countervailing federal
considerations, and even provides a refinement. The courts say: let’s look at
it a different way when we look at federal rules on point. Rather than go
through the traditional analysis, Hanna tells us we must use the FRCP when
we have them and avoid the outcome-determinative test we were initially
given. We look instead at Erie’s twin-aims: that’s a pretty explicit
efficiency/equity balancing test.
In diversity cases, a federal court must apply the law that would be applied
by the courts of the state in which they sit. By “the law”, we mean court
decisions as well as statutes. Most of the time, the Erie issue is not difficult at all . We have a rule: when Congress created the federal court and
empowered them to hear diversity cases, it had to tell them which law to
use in those cases.
The Rules of Decision Act – § 1652
That’s where the Rules of Decision Act (RDA) comes in. It says that federal
courts will use state law to decide diversity cases. The RDA has survived
virtually unchanged to the present day: 28 U.S.C. § 1652. But what does the
statue mean by “the laws of the several states”?
Swift v. Tyson – If you want to look up the law , we might look up statutes as
well as case law. Swift had to figure out what law applied. Justice Story says
that court decisions are not laws. Story said that “laws equal statutes” and
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so state statutes will bind federal courts. But if there are no statutes, we will
fill in the gaps with federal common law . Story says that the law is The Law,
and is the same and unchangeable everywhere, an idea grounded in Natural
Law philosophy.
Erie Railroad v. Tompkins – Tompkins sued the railroad in the Southern
District of New York to try to take advantage of the rule of Swift v. Tyson,
which said that federal court didn’t have to use state common law to decide
cases. Can federal courts ignore state law when deciding diversity
cases? Federal courts must follow and apply both state statutes and state
case law in deciding cases unless the case is governed by federal statutes or
the United States Constitution.
Brandeis and the Court attack Swift on several fronts: (1) Swift relied on a
bogus interpretation of the Rules of Decision Act, as proven by Chuck
Warren. (2) Swift has had disastrously unfair results in practice. (3) Swift is
unconstitutional because it usurps part of the power that the Constitution
left to the states to make their own laws (statutes and case law).
Swift , the case, was an unconstitutional result. We don’t typically see the
court go out of its way to declare something they previously did as
unconstitutional, but Brandeis does go out of his way to try to ground Erie inconstitutional analysis.
Brandeis declares that there is no “federal general common law ”. Congress
can’t dictate common law to the states. But arguably, we still do have
federal common law. Congress can easily use legislative tools to change
the substanceof state laws (as in statutes). All they have to do
is coerce states (by withholding funds, for example) to adopt statutes that
Congress prefers.
The Klaxon rule says that the federal court applies the “choice of law” law of
the state in which it sits. This is a variant of Erie. If the court really wanted
uniformity, this is where it screwed up. If there was one set of rules on what
law should be applied, it would give us a much greater sense of
certainty. Recall Piper and its complications.
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Erie says that you must apply the “law of the state”. If there’s a statute,
that’s what you apply. If there is no statute, we look at the case law of the
highest court in that state. If there isn’t a definite ruling from the State
Supreme Court, the federal court must make their Erie “guess”: they musttake a stab at predicting what the State Supreme Court would do. There are
two ways to do this: (1) Look at intermediate appellate or state district
courts. (2) Ask the State Supreme Court directly by “certifying a question” of
state law. Most state courts can accept certified questions. (This is rare,
because it is discretionary.)
Guaranty Trust Co. v. York – Can the federal courts hear this suit even
though it would be barred if it took place in state court between non-diverse
parties? NEW RULE, AGAIN! The outcome of the case in federal court should
be the same as it would be in state court. The Court looks to the policy
intent of the ruling in Erie and asserts that it doesn’t matter whether state
law is substantive or procedural as long as it will have an impact on the
outcome of a case.
York gives us the outcome-determinative test. We don’t look at the name
given to the rule by the state to determine whether the rule is substantive or
procedural. We want to ensure the case will come out substantially the samewhether it is tried in federal court or state court. The problem is that this
test goes too far: a lot of crazy little things can be outcome-determinative! If
we apply York literally, then the FRCP will kind of wither and die, because
virtually every rule will run up against a state rule in conflict. Post-York ,
there is confusion among the courts about how to apply or limit the rule.
The eerie Erie three
Ragan v. Merchants Transfer & Warehouse Co. – If we apply the outcome-
determinative test to this case, the outcome will definitely be affected if we
use federal instead of state rules. Do we follow the state rule in this
case?According to York , we must, and that’s what the Supreme Court holds
in Ragan.
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Cohen v. Beneficial Indus. Loan Corp. – The federal rule has no bond. The
New Jersey statute says you have to use a bond. Is this outcome-
determinative? Yes! Thus, the Supreme Court holds that New Jersey state
law trumps FRCP Rule 23.1.
Woods v. Interstate Realty Co. – Under Mississippi law, you can’t sue
in Mississippi as a foreign corporation unless you designate an agent for
service of process in Mississippi. Under federal rules, there would be no
problem for aTennessee company to sue in Mississippi without any such
agent. The Supreme Court held that the state statute trumps the FRCP
again!
The Byrd balancing test
It looked like York was swinging the Erie pendulum too far towards using
state statutes, laws, and rules. It’s a Byrd , here to save the day!
Byrd v. Blue Ridge Electric Cooperative – Should the state policy of having
the judge decide a particular issue of fact trump the federal rule of having a
jury decide in the interest of uniformity of outcome? Our new test says that
we will use the federal rule if it’s uncertain whether a different result would
follow from applying the that rule instead of the state rule.
There are three questions that you ask when you deal
with Erie issues: (1) Is the state rule bound up
with rights and obligations? This is the substantive question. In Erie, the
state rule had everything to do with rights and obligations, so the state rule
applied. If the answer is yes, state law applies. If the answer to this first
question is no, however, you ask the second question: (2) Will applying the
state rule dictate the result of the case? This comes out of York . In York , the
answer was yes. If the state rule is outcome-determinative, we must ask a
third question: (3) Are there countervailing federal considerations?
The main advantage of Byrd is that it gives us a chance to consider the
federal forum’s interest in running things a certain way. This case helps us to
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preserve the rest of the federal rules and stop the killing off of all
the FRCPs! It stops the erosion of the Eerie Erie Three!
Hanna v. Plumer – When a situation is covered by the Federal Rules, the
REA tells you to use the Federal Rule and the only way you’re goingto not use the Federal Rule is if it is unconstitutional. But the trick is that the
Supreme Court both writes the rules and decides whether they’re
constitutional. Thus Hanna gives us a simple way to preserve the FRCP. If
the Federal Rules are on point, you use them, unless they are
unconstitutional.
The twin aims of Erie are: (1) Stop forum shopping, and (2) avoid unfair
differences in administration of justice between state and federal courts.
The Rules Enabling Act says that the Supreme Court gets to set the rules of
procedure for the federal courts, provided that it does not “enlarge, modify,
or abridge any substantive right”. Congress, by statute, empowered the
court to create the Federal Rules of Civil Procedure. The REA is different
from the RDA. The latter is the law that prescribes the way in which the
federal courts decide the legal questions involved in diversity cases.
Modern Erie
How do we put Erie, York , and Byrd together with Hanna in order to describe
a unified Erie doctrine? Is there a Federal Rule of Civil Procedure at issue? If
no, analyze under the twin aims of Erie. That’s Hanna dicta. If there is a
Federal Rule, then is there a conflict between the proposed Federal Rule and
the state’s procedure? If not, then you use the Federal Rule. Presumably, if
there’s no conflict, you can use the state rule as well. That’s a possible
explanation for Gasperini . If there is a conflict, then you ask: is it within the
REA? If yes, then you apply the Federal Rule. There can’t be a no answer
because a court will never declare one of its own rules unconstitutional.
It turns out that if there is a Federal Rule, there is only one possible
result: use the Federal Rule. Is there a Federal Rule or statute on point? If
yes, then use it. If not, then we’re into the murkier Erie guess. It’s
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suggested that we ask theYork question: is the rule outcome-
determinative? If not, then you use the Federal Rule. If yes, you use
the Byrd test which asks if there is an overriding federal interest. If there is
a FRCP or statute, we use Hanna. On the other hand, if there isn’t, we use a
combination of York and Byrd .
Burlington Northern Railroad v. Woods – What’s
the Erie question? The Erie choice is between the Alabama “specific”
rule, or the “discretionary” Federal Rule. The Court rules that the Federal
Rule wins! Is there a Federal Rule on point? Yes, and there’s a conflict, so we
use the Federal Rule.
Stewart Organization, Inc. v. Ricoh – Our Erie conflict is between
the Alabama precedent (common law) and the federal statute (28 U.S.C. §
1404). Federal law allows you to transfer, while the Alabama Supreme Court
has held that forum selection clauses are invalid based on public policy
reasons. The conflict isn’t the forum selection clause itself, but
between Alabama’s common law provision and a federal statute that says
that you can move litigation at the discretion of the court. The Court holds
that we shall follow the federal statute. § 1404(a) wins! The decision about
whether the rule or statute is on point is the real battleground. If you have
any hope of applying a state rule, it must be at the “on point” level.
Walker v. Armco Steel Corp. – Do we apply the Federal Rule? The Court says
that Rule 3 does not affect the statute of limitations, for some reason. The
Court gyrates out of the seemingly clear conclusion from the one-sentence-
long Rule 3. The Court suggests that there is not a federal statute on
point. Once we get there, the opinion makes sense because the twin aims
of Erie really are affected. In one forum, you’ll be able to sue, while in
another forum you can’t.This was part of the trilogy that came after the
outcome-determinative test. The Court was unwilling to let go and reverse
itself. Thus, the Court continues to maintain that Rule 3 is trumped by state
exception statutes.
Gasperini v. Center for Humanities, Inc. – This is all about the conflict
between the good ol’ Seventh Amendment and New York law. New
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York state law allowed a review of the jury award by a judge. On the other
hand, the Seventh Amendment says that no fact tried by a jury can be
reexamined by any other court. In this case, Ginsburg says that we can
protect both federal and state interests. The Court rules that the appellate
court cannot apply New Yorklaw (the Second Circuit was in error) but thefederal district court can apply New York law, so it was right.
Choice of law
All courts, state and federal, must make choice of law decisions. The Rule
of Klaxon says that a federal court ordinarily must apply the choice-of-law
rules of the state in which it sits.
Choice of law is another place where we see the balancing test. In deciding
choice of law, the Restatement tells us that the transactional test that most
jurisdictions use is a balancing test that are used to see which jurisdiction
has the closest relationship to the claim. Where did the claim arise? Where
are the parties? We want to make it easy to litigate issues like this, but we
want to make it equitable by ensuring some relationship between the law we
choose and the participants in the event.
There is exception to the rule for cases that are transferred. When a case
gets transferred, you apply the choice-of-law rules of the state from which itwas transferred. (This is called the Van Dursen & Ferens doctrine.) The point
is that a transfer should be no more and no less than a “change of
courthouse”, but it shouldn’t change the law that is used.
Gries v. Modell – Should Ohio law or Delaware law apply to the contract
between Gries and Modell? The corporation is incorporated
under Delaware law, but the team is in Ohio. Arguably, since Delaware law
governs the corporation, Delaware law covers the contracts. However, most
state courts will try to apply their own law at first blush. It’s convenient and
they’re familiar with it. The Ohio Supreme Court agrees with the trial court
that Ohio law should be applied. The Ohio Supreme Court changes the
standard by which Ohio courts decide choice of law issues in contract
cases. The old rule is that the place where the contract is to be performed
governs.
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Why use a “place of performance” rule? It’s an easy, black letter rule. Most
contracts have a place of performance, and if you can identify it, you’ll know
which state’s rules apply. Also, if a contract is being performed somewhere,
it makes sense that the law of that place applies.
The new test, which comes out of the Restatement of Conflict of Laws, is
the most significant relationship test. It’s a factor test! Those factors
include: (1) The place of contracting, (2) the place of negotiation of the
contract, (3) the place of performance, (4) the location of the subject matter
of the contract, and (5) the domicile, etc., of the parties. Note that part of
the purpose of the Restatements is to eliminate black line rules and allow
more discretion by considering and weighing multiple factors.
Morgan v. Biro – Does Ohio law or Kentucky law apply to the facts of the
case? NEW RULE! The court abandons the old rule of “lex loci delicti” (“the
law of the place where the tort was committed”) in favor of a balancing test
weighing the following factors: (1) where the injury happened, (2) where the
misdeed that caused the injury happened, (3) where the parties are from,
(4) where the relationship between the parties is, and (5) additional factors
(“section 6”).
Incentives to litigate
So you wanna go to court? Well, you better ask yourself two fundamental
questions: (1) What is the remedy? Are you going to get something for your
client? (2) Where is the financing? How is the litigation going to get paid
for? If there’s nothing “at the end of the rainbow” f or yourself or your client,
you won’t proceed.
There are two types of remedies: specific and substitutionary. Specific
remedies compel someone to do something. Substitionary remedies are all
about money.
United States v. Hatahley – Was the damage award appropriately
calculated? The injured party needs to be put in the position it would have
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been in absent the wrong of the injurer. The three important rules of
compensatory damages that we learn from this case are: (1) The open
market value rule (an objective measure), (2) the mitigation principle (you
can’t sit around and pile up losses), and (3) individualized measures of pain
and suffering (you can’t hand out money with a cookie cutter).
Punitive damages
The purpose of punitive damages is to punish, which is not a traditional
element of our civil justice system. Typically, civil lawsuits aren’t about
punishment. Largely we leave punishment to criminal law. There are reasons
why: there are significant differences in the way these cases are handled.
Plaintiffs drive civil legal actions. In criminal cases, the prosecutor runs the
show. The standard of proof is preponderance of the evidence in a civil
case. In criminal cases, the standard of proof is beyond a reasonable doubt
(a higher threshold). That’ s why you can still have civil lawsuits after
criminal acquittals.
Honda Motor Co. v. Oberg – Does the Oregon constitutional prohibition on
judicial review of jury punitive damages awards violate the Fourteenth
Amendment? Procedural laws and rules that undermine common lawprocedural protections are presumed to violate the Due Process Clause.
The Due Process Clause spawns two types of protections. This is the kind
that we would call procedural due process. That means there must be a way
to go about reviewing results. The other half is substantive due process, as
found in BMW .
BMW of North America v. Gore – Was the punitive damage award in the case
unconstitutional excessive? The constitutionality of punitive damages awards
will be judged by: (1) The degree of reprehensibility of the defendant’s
conduct, (2) the disparity between the actual harm done, as found by the
jury, and the punitive damages award, and (3) the difference between the
punitive damage remedy and civil or criminal fines imposed by statute or in
similar cases at trial. The constitutional issue is one of substantive due
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process. Due process requires that you have notice that you might be
deprived of your property. You also must have notice of how much you
might be out for.
Cooper Industries v. Leatherman Tool Group, Inc. – This case gets arguednot on Fourteenth Amendment grounds, but on Eighth Amendment
“excessive fine” grounds. Stevens says that states must not impose grossly
excessive punishments under the Eighth Amendment. Also, on review, you
mustn’t assume the trial court got it right. This gives the appellate courts a
different way of checking the amount of damages. Doing it like
this, de novo, will overturn more verdicts than review merely for abuse of
discretion.
State Farm v. Campbell – This case was about failing to settle claims within
policy limits. The United States held the punitive damages award
unconstitutional in this case by substantive due process according
to Gore. Although the Utah Supreme Court applied the three-
prong Gore test, the Supreme Court says that the Utah Supreme Court
applied the test wrong. In this case, the Supreme Court hints at a
number: single-digit punitive damage multipliers are probably okay, but ten
and above will raise the proverbial eyebrow.
Financing litigation
There are all different methods of financing litigation. In practice, this
question becomes increasingly important. How are we going to be paid?
The American rule v. the English rule
Under the American Rule, everybody pays their own lawyer. Under the
English Rule, the loser pays! What incentives do these rules provide to
litigants? There is no incentive to file a totally frivolous lawsuit under the
American rule.What about under the English Rule? Not only is there no
recovery for the frivolous plaintiff, but the plaintiff will also have to pay the
costs of the defendant. Which system is more likely to have a deterrent
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effect? The marginal case is dropped in the English system, because it’s not
worth the risk of incurring both your own costs and the defendant’s costs.
Characteristics of the American rule: Both sides are undercompensated,
insofar as winning plaintiffs must pay part of their compensation to thelawyer. If the defendant wins and has to pay zero to the plaintiff, they still
have to bear their part of the cost of litigation. This system is hospitable to
“marginal cases”. This system has the problem of creating financing
difficulties for marginal plaintiffs with low potential for recovery.
Insurance
How do you defend yourself when you gets sued for a car accident? You
start out by calling your insurance company. Why? Because car insurance
usually has coverage for legal representation when you get sued. So who
becomes one of the parties in interest? The insurance company takes an
interest in the outcome of the suit. Insurance companies bear a lot of
litigation costs and therefore want to settle even frivolous claims.
Contingency fees
The lawyer agrees to provide legal services with fees to be paid out of apercentage of the proceeds of the litigation. This is the chief way that
plaintiffs are able to finance meritorious litigation. That’s because the costs
per hour for attorney’s fees are simply too great for most individuals to bear
except in certain contexts.
Yeazell describes contingency fees as being like insurance policies for
potential plaintiffs. A system with a combination of contingency fees and
insurance basically provides a way that most people can get representation
on both sides in most litigation.
Legal aid and pro bono
There are agencies at all levels of government that provide legal assistance
to indigent plaintiffs. Pro bono work is free work that regular old lawyers
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would do for indigent plaintiffs. The ABA suggests you do 50 hours of pro
bono work a year.
The bottom line is that there are many ways to finance. These are all parts
of the American Rule.
We talked about contingency fees. We also talked about hourly fees. That’s
how a lot of corporate work is done. Some basic work is done by flat fee, like
divorce, petty crime, wills, and stuff like that. Some legal work is done pro
bono. Insurance is also a source of funding.
Fee shifting – Rule 54
The American Rule says that everyone pays for their own lawyers. However,
we have some elements of fee shifting (like the English Rule) embedding in
our fee structure. The clearest example is in civil rights litigation. 42 U.S.C.
§ 1988(b) says that the court may allow the prevailing party in a civil rights
suit to get the opposing party’s attorney’s fees. The Supreme Court has
interpreted “the prevailing party” to mean “the prevailing plaintiff”.
Why would Congress create a statute like this? Maybe Congress is trying to
create incentives. Congress favors civil rights and favors civil rights litigationas a way to achieve civil rights. Therefore, they’ll give you extra incentive to
bring these kinds of lawsuits. Congress also wants to “pile on” the
defendant. Remember that fees are not the same thing as costs!
FRCP Rule 54(d) says that generally you’ll get costs other than fees if you
win (whether you’re the plaintiff or the defendant). You would never bother
filing a motion for costs because the costs they’ll let you recover are so
minimal.
Evans v. Jeff D. – Do federal district courts have the power to approve the
waiver of attorney’s fees? Rule 23(e) requires court approval of settlements
of class actions. The Fees Act doesn’t prohibit all settlements conditioned on
the waiver of fees. If this had been a Rule 68 offer, the class still would have
received their fees up to the offer. Rule 68 just blocks the fees earned after
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the date of the offer. On the other hand, this offer is intended to avoid trial
altogether by making an attractive settlement offer.
Rule 68 and other fee shifting statutes
FRCP Rule 68 allows defendants to cap their liability for certain costs by
making a settlement offer before trial.
In an ordinary piece of federal litigation, the defendant makes a good faith
offer of judgment. If the plaintiff accepts, that’s the end of the case. If not,
the case goes on to judgment. There are two possible results: the plaintiff
gets more than the offer and recovers costs. If the plaintiff gets less than
the offer, the plaintiff gets their costs up to the point of the offer, but not
any of their costs after that offer. In fact, the plaintiff has to pay the
defendant’s costs from that point on. The idea is that I should have taken
the offer when I should have because ex ante it appears that it was
reasonable. This doesn’t usually have a big impact, but it could if we’re
dealing with a fee shifting statute like 42 U.S.C. § 1988(b) under which fees
are defined as costs. The defendant, by making an offer, can avoid paying
the plaintiff’s attorney’s fees after the offer.
Provisional remedies – Rule 65
What if something real bad is going to happen RIGHT AWAY??? We
need preliminary relief !!! The idea is to preserve the status quo and prevent
future bad acts. One place you’ll find such relief is in FRCP Rule 65(b), where
you’ll find temporary restraining orders. These can happen without
notice! You demonstrate facts by affidavit that there will
be immediate and irreparable injury and that you certify to the court that
you’ve done your best to give notice to the other side. If you’re worried that
somebody is going to try to get a temporary restraining order against you,
you should let everyone in your office know about this.
On the other hand, in Rule 65(a), you find preliminary injunctions, for which
you need to have a hearing first. You’re going to order someone not to do
something following a hearing. Temporary restraining orders and preliminary
injunctions can be reversed for lack of specificity.
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There are several types of injunctive relief: (1) Ex parte temporary
restraining order (no prior hearing, and it’s of a short duration), (2) a
regular temporary restraining order (pending a hearing), (3) a preliminary
injunction (after hearing but before trial), or (4) final injunctive relief (aftertrial).
Provisional remedies are explained in Fuentes! In resolving what sort of
process is due to Ms. Fuentes, we must balance efficiency and equity. There
must be notice and a hearing, but the type of notice and hearing can vary
based on the reason rights are being deprived.
Fuentes v. Shevin – Does procedural due process require the chance for a
hearing before the state takes someone’s stuff? The state can only take stuff
without a hearing when: (1) The seizure is directly necessary to protect an
important public interest. (2) There is a special need for prompt action. (3)
The state keeps strict control of the seizure process by having a government
official make sure the seizure is necessary and justified.
Fuentes was entitled to a prior hearing. It doesn’t matter if she gets a
hearing later. Why not? You must have notice and be heard before the
government comes and takes your property away. You’re entitled to beheard. That’s how the Court interprets the Fourteenth Amendment.
Procedural due process
Before the government can take your stuff, you must have notice, and you
must have a hearing of some sort. That’s procedural due process. You can
choose not to take advantage of that right if you want. The purpose of all of
this is that we want to make sure that we don’t wrongfully take Fuentes’s
property. Even short-term deprivation of Fuentes’s property is bad.
Not every pre-hearing seizure requires notice plus a hearing. What are the
exceptions? (1) There must be an important governmental or general public
interest, (2) there must be a special need for prompt action, and (3) it must
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beinitiated by the government itself. This is sort of a factor test and not
necessarily a three-prong test.
You can look at Fuentes two ways: “Fuentes small” and
“Fuentes grande”. “Fuentes small” says that pre-judgment seizure of adebtor’s property without notice and the opportunity for a hearing is
unconstitutional. As a result of this, states must change their statutes to
provide for hearings before people are deprived of their
property. “Fuentes grande” says that notice and a hearing are the bedrock of
due process. It’s another balancing test! It’s a balance between what’s
efficient (the replevin process) and what’s fair (having some way to judge
whether the procedure could be in error). The Court sides with fairness in
this case.
Filing a complaint – Rules 8 and 11
Once you decide to litigate, you choose a forum. This involves personal
jurisdiction, subject matter jurisdiction, venue, Erie, and choice of law. Okay,
we’ve got the right court and the right law, so now we’re going to file a
complaint, which involves Rules 8 and 11.
We looked at the Federal Rules of Civil Procedure themselves, such as Rule11, which requires me as an attorney to sign papers that are filed with the
court. On the other hand, Rule 8 says we shall use notice pleading, which
means we don’t need to put all the info into the initial pleading. Fairman
argues that Rules 8 and 11 are in conflict…and it’s just that same conflict
between efficiency and equity. Rule 11 requires you to do more than Rule 8
requires you to do in your complaint, which may lead to conflicts.
Bridges v. Diesel Service, Inc. – Should the plaintiff be sanctioned for a Rule
11 violation? What Rule 11(b) says is that you have an obligation, as an
attorney, to sign every piece of paper that’s ultimately filed in the court, like
pleadings and motions. By signing the stuff, you are certifying that what you
say in that document has been formed after a reasonable inquiry, that it’s
not being used for improper purposes (harassment or delay), and that your
claims are warranted by existing law or a good-faith effort to change the
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law. You are promising that you’ve done your research and you have a
good-faith basis to make the motion you’re making.
Pleading – Rules 8 and 9
Under the federal rules, the pleading is governed by Rule 8. You have to
provide “a short and plain statement of the claim showing that the pleader is
entitled to relief”. This is notice pleading. All you have to do is put the other
party on notice of the accident such that they can form a response to the
complaint. The plaintiffs don’t have to explain their legal theory.
There are exceptions: Rule 9(b) says that in cases of fraud or mistake,
claims will be stated with “particularity”. That’s heightened pleading! It’s the
bane of Fairman’s existence!
Bell v. Novick Transfer Co. – Is it necessary for the plaintiff to lay out the
facts and allegations in detail in his complaint? Rule 8 only requires only
“notice pleading”, which is just a brief statement that shows the plaintiff can
get relief.
What is the relationship between Rule 8 and Rule 11? Rule 8 tells us that
your complaint need only have “bare allegations”, while Rule 11 requires youto have investigated and have evidentiary support for your factual
allegations.From the plaintiff’s standpoint, when I sign a complaint, I’m
supposed to have done all the investigation necessary to support my
complaint. But I don’t need to put that research into my complaint! There
might thus be a tendency on the part of the plaintiff to cut corners and
ultimately violate Rule 11. The rules are in tension with each other!
Wright called Rule 8 “the keystone”. It’s easy to sue people: you give them
notice. Everything else in procedure is designed to “winnow down the issues”
to just those things that will be tried on the merits. You join up people, you
“discover” which claims have merits, and then you go to trial or settle or get
summary judgment. There is an exception, though, in Rule 9(b) where there
are particularity requirements for fraud. This rule basically got in by
tradition!Fairman thinks it should be abolished!
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Leatherman calls this conflict in this question. The Fifth Circuit decided that
civil rights cases are “fraud-like”. They are easy to allege, difficult to defend,
expensive, and difficult to get out of. The Circuit decided that civil rights
cases should be treated differently. The Supreme Court finds that the rulesdo not include heightened pleading for civil rights cases, and so they strike
down the Fifth Circuit decision. Post-Leatherman, fraud cases require
heightened pleading, while civil rights cases only require notice pleading.
However, amazingly, various circuits continued to apply heightened pleading
to civil rights cases. The thing is that there was a little footnote
in Leatherman: they left the door open to requiring heightened pleading
against individual government actors. In this little “crack”, many circuits, led
by the Fifth, interpreted this to mean that notice pleading is only required for
suits against cities.
Swierkiewicz , out of the Second Circuit, required heightened
pleading again. The Supreme Court overruled this, and Justice Thomas said
that Rule 8 applies to all civil actions except for those with fraud or
mistake. You would hope that this case will get rid of heightened pleading
except for fraud. If only that were the case, says Fairman! In practice,
courts impose factual particularity in a whole host of cases like RICO,antitrust, CERCLA, conspiracy, defamation, copyright and even negligence
claims. Even heightened pleading is undefined! It has various meanings to
different courts. The issue seems to be whether you should use heightened
pleading for anything that’s “fraud-like” or only when there’s something
that’s exactly fraud, nothing more and nothing less. The major motivation
for heightened pleading is probably the deterrence of frivolous lawsuits, but
Fairman says that this is an overreach of judicial power.
Rule 12
Rule 12(a) says there is an answer deadline. You have to answer a
complaint 20 days after you’ve been served. That’s not a lot of time,
because after your client has been served, they go around looking for a
lawyer, and by the time they get to you, you might have far less than 20
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days to do your answer. But you have another option: if you waive service
under Rule 4(d), you get 60 days after the request of the waiver. As a
practical matter, most people waive service because that’s a big boon. These
are rules for repeat players in the litigation game. So 12(a) just tells
us when.
12(b) says there’s a lot of stuff you can present, stuff you can include in
your answer. All Rule 12(b) says is: bring it on! Let’s get everybody in and
on the table before we get started. The process is designed to get you into
court quickly and cheaply, and then we’ll work it out later.
When you file an action against somebody, that’s a claim. What if that
person wants to sue you back? That’s the counterclaim. What if I want to
sue against two different people? I can have a claim against them, they can
have a claim against me, but they might have claims against each
other . These are cross-claims. In other words, these are claims between
people on the same side of the “v.”: plaintiff v. plaintiff, or defendant v.
defendant. Let’s say the defendant wants to bring in their insurance
company. This would be a third-party claim.
Rule 12(b) motions
All 12(b) motions are potential pre-trial motions to dismiss a case without it
having to go to trial: (1) subject matter jurisdiction, (2) personal
jurisdiction, (3) improper venue, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to state a claim, and (7) failure
to join a party. Rule 12(g) and (h) establish which of these get waived if you
fail to bring it at the earliest possible time. Use them or lose them! If you
wrote on an exam that this claim would be waived according to Rule 12(h),
you would be wrong. It gets waived under Rule 12(g).
Rule 12(h) tells us three things: (1) You’ve waived personal jurisdiction,
venue, insufficiency of process, and insufficiency of service of process if you
didn’t do these right off. (2) But we protect a 12(b)(6), failure to state a
claim, as well as Rule 19, which can be raised all the way up to the time of
trial. (3) But subject matter jurisdiction can be raised at any time, even by
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the court itself without any action from the parties. Subject matter
jurisdiction is the most favored defense.
At some point, the court wants to go ahead and go forward with a matter
even though there may be problems with certain issues like personal jurisdiction. Why would the court do this? This is the equity/efficiency
tradeoff. For efficiency reasons, if you wait too long, we’re just going to say
you’ve waived your right to have your motion heard.
Answering a complaint
If you don’t file a Rule 12 motion, then your obligation is to file an
answer. You don’t have to answer until a Rule 12 motion is ruled on, which
is one good reason to always file a Rule 12 motion even if it’s mostly bogus.
Answers contain denials, affirmative defenses, and counterclaims. What are
the requirements of those? Denials are described by Rule 8(b). You need to
admit or deny, or if you don’t have enough information to admit or deny,
you say so and that operates as a denial. When you intend to only deny part
of the allegations, you have to say that. If you fail to deny an allegation in
your answer, it’s admitted. If you don’t say anything about a certain
allegation, it’s like you’re saying it’s true. You must include any affirmativedefenses you may have in your answer. You would also include statute of
limitations stuff: “Yes, I messed up, but you waited too long to file,
sorry.” The last part of the answer is any claims you may have
(counterclaims).
Joinder – Rules 19 and 20
This is where we join up all the parties who have a potential role in the
litigation. Rule 19 tells us that some people have to join. Rule 20 tells us
that joinder is permissible in that any plaintiff can join if they assert any
right to relief arising from the same claim. Rule 20 is not very
interesting. It’s usually easy to see the relationship between the transactions
or occurrences. Rule 20 is an efficiency rule: let’s bring in everyone we
can. Rule 19 says: bring them in if they’re necessary. However, it tempers
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this impulse with efficiency, asking: “Are those parties really
necessary?” Defendants may be joined under basically the same
standard. It’s basically reciprocal. This reflects a liberal idea of getting as
many people into the lawsuit as needed. The rules are liberal, but there is an
outer boundary beyond which you can’t join up parties.
Temple v. Synthes Corp. – Are joint tortfeasors indispensable parties under
Rule 19(b)? It is not necessary for all joint tortfeasors to be named as
defendants in the same suit. The Court finds that joint tortfeasors are
permissive rather than indispensable parties. Multiple tortfeasors equals
permissive joinder. This is a black-letter rule. The gist of the Supreme
Court’s ruling in Temple is that the lower court went past the threshold
question in Rule 19(a) too soon and skipped right to the balancing test of
19(b).
Discovery
This is simply the methods used by a party or potential party in a lawsuit to
obtain or preserve information. These are the tools we have to find out stuff
or keep stuff from being destroyed.
The purposes of discovery are: (1) Preservation of information that mightnot be available at trial. You record it through depositions, interrogatories,
and other stuff. (2) Winnowing down the issues in controversy. We want to
start narrowing things down. Some of the issues alleged in the pleadings
might not be supportable at trial and you might choose to drop a claim. Or,
as a defendant, you might find that you’re going to be liable and so you’ll
settle. (3) Obtain information that will lead to admissible evidence. But you
can discover lots and lots of stuff that will not be admissible.
Discovery comes in the form of: (1) Requests for production, (2) disclosures,
(3) depositions, (4) interrogatories, (5) requests for admissions, and (6)
mental or physical exams. These are the six main tools of discovery.
All of these tools are subject to other general discovery rules, like Rule 37:
what do you do if you don’t cooperate? This is a sanction rule. For non-
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compliance with any of the discovery rule, you can get sanctions, such
as: (1) Facts are deemed admitted. (2) Evidence is prohibited. (3) Pleadings
get stricken or a dispositive ruling is made. (4) Contempt! (5) Attorney’s
fees and expenses are awarded.
Butler v. Rigby – Discovery includes not only information admissible at trial,
but also inadmissible information that could lead to other information
that would be admissible at trial. Discovery can be flexibly limited by
considerations of both efficiency and fairness at the discretion of the trial
judge. You can get information both from parties and non-parties. Rule
26(b)(1) tells you what kind of stuff is obtainable in discovery. You can even
request stuff that may be ultimately inadmissible at trial. We don’t make
evidentiary determinations at the pretrial stage.
Summary judgment – Rule 56
When we take a case away from a jury, we are affecting the equity interests
of the parties that are litigating. We do that when there’s nothing to actually
be tried because it’s more efficient . Based on the Celotex standard, we may
deny you your day in court in the name of efficiency. The Celotex standard
says that summary judgment should be entered after discovery against a
party who “fails to make a showing sufficient to establish the existence of anelement essential to that party’s case”. Summary judgment is a way in
which cases are resolved on the papers. It’s like a motion to dismiss. When a
court enters summary judgment, it’s all over. It’s like there was judgment at
a trial. Your only recourse is an appeal.
Houchens v. American Home Assurance Co. – Summary judgment shall be
granted after discovery against a party that fails to show they could
establish some essential element of their case which they have the burden
to prove at trial.Either side can seek summary judgment, but it’s typically a
defendant’s type of motion. It’s not limited to that, though. Summary
judgment is a procedural mechanism to get a final, binding determination on
the merits such that the moving party wins. Implicit in that is that there is
no need to go to trial: there is nothing to try in this case because the court
has everything it needs to make its decision as a matter of law .
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The standards for summary judgment come from Rule 56. The standard is
that there is no genuine issue of material fact . If there is an issue of fact, the
summary judgment must be denied because the factfinder gets to resolve
that factual dispute. Summary judgment says that there’s nothing to trialbecause all the facts are clear and if we accept those facts they do not
amount to a recoverable claim.
The Supreme Court has elaborated on the standard in Celotex . They said
you can get summary judgment if, “after adequate time for discovery”, the
losing party “fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear
the burden of proof at trial”.
What kind of evidence does the court consider on summary judgment? They
can look at the requests for production of documents. Those documents
form evidence that you can use at this stage. The depositions will create
transcripts that you can use as evidence at this stage. You can also use
interrogatories and requests for admissions. Most importantly, affidavits
are very important. At minimum, you as the attorney will have to write an
affidavit that the copies you submitted as evidence were “true and correct”
copies of the documents given to you.
Judgment notwithstanding the verdict – Rule 50
Norton v. Snapper Power Equipment – A court should grant judgment
notwithstanding the verdict for the moving party only when it finds that,
having taken the evidence as most favorable to the non-moving party,
reasonable people could not possibly find for the non-moving party. Directed
verdict/J.N.O.V. is now called judgment as a matter of law . Check out Rule
50! If, considering the evidence in the light most favorable to the non-
moving party, a reasonable jury could not reach a contrary verdict then the
court may grant judgment as a matter of law. This is a conflict between the
judge and the jury. The judge basically says, “Jury! You’re crazy! You
couldn’t possibly make that decision!I’m taking it out of your hands.”
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JNOV and summary judgment both view the evidence in the light most
favorable to the non-moving party. The key similarity is that both take cases
out of the hands of the jury. When you look at the standard they use: “no
genuine issue as to any material f act” from Rule 56 versus “no legally
sufficient evidentiary basis” from Rule 50…Fairman says we can think of these two standards as the same.
Preclusion
Preclusion prevents two bites at the apple. Preclusion tries to say that
certain things are done with, they’re final , and we’re not going to go back
and revisit those issues. The preclusion doctrine is justified by weighing our
big factors of efficiency and equity. We avoid inefficient extra litigation, and
we also avoid unfairness to defendants in making them defend too damn
many lawsuits.
Claim preclusion is also known as “res judicata” and issue preclusion is also
known as “collateral estoppel”. We will call all this stuff preclusion. But some
courts will say res judicata, which will sometimes mean claim preclusion in
particular, but may mean preclusion in general.
Claim preclusion forbids a party from relitigating a claim that should havebeen raised in former litigation. If a claim comes out of the same “nucleus of
operative facts”, for efficiency reasons, we want people to bring all the
claims at one time.
Issue preclusion is when an issue of fact or law is actually litigated and
determined by a valid judgment such that the determination is conclusive in
a subsequent action between the parties, whether on the same or different
claims.Same deal: why waste our resources finding out the answer to a
question again when the question has already been answered?
Rush v. City of Maple Heights – Should a plaintiff be allowed to bring
separate causes of action for the same tort? When a person suffers both
personal injuries and property damage stemming from the same tort, only
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one cause of action arises. Both sides are asking for preclusion, but they’re
asking for different types…all in the same case!
Claim preclusion
Claim preclusion looks at whole claims as opposed to issue preclusion whichlooks at portions of a claim where issues of law or fact have already been
determined; those issues are then binding on the parties in future litigation.
Frier v. City of Vandalia – Frier sued for replevin in state court and lost. Then
he tried to sue in federal court invoking the Fourteenth
Amendment. Is Frier’s federal claim precluded by the resolution of his state
claim? One suit precludes a second when the parties are identical and the
evidence necessary to sustain a second verdict would sustain the first. The
appellate court says that Frier already had a full and fair opportunity to
litigate all the important issues.Easterbrook says: the federal claim is
precluded because it rests on the same evidence as the already decided
case!
The policy behind claim preclusion
What policy can justify barring the “relitigation” of a claim that was never
actually litigated? The plaintiff is the master of his own complaint. He couldhave brought his claims all together if he wanted, but he didn’t. It’s all about
efficiency!!! On the other hand, if you can’t bring all your claims together,
you shouldn’t be penalized for not doing it.
Martino v. McDonald’s System, Inc. – Does the prior consent judgment
against Martino preclude him from the current suit? Once a judgment has
been rendered on a claim, all possible issues related to that claim are
considered settled even if they weren’t brought up in the first suit. The court
says that a judgment on the merits is an absolute bar to relitigation. A
court-ordered consent decree is a judgment on the merits.
The doctrine of privity
This doctrine says we’ll bar certain people from filing more lawsuits even
though they weren’t actually parties to the previous suit. Basically, privity is
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the idea of a relationship between parties such that there is an identity of
legal interests: like property owners and successive owners are
in privity with one another. Trustees and beneficiaries can stand in the same
relationship, as well as executors and heirs. There is an identity of legal
interests between the claimant and the person found to be in privity. To putit another way, there must be a strong legal relationship to bind someone
to somebody’s else’s judgment.
Searle Brothers v. Searle – Should the Searle Brothers be bound by the final
judgment of the divorce case as a matter of either issue preclusion or claim
preclusion? Just because you could have been a party to a prior action but
failed to get involved doesn’t bar you from litigating your own claim. But if
you were in privity to a party to the first suit, you might be barred
from relitigating the claim because your privity partner has done it for you.
Issue preclusion
What’ s the issue of issue preclusion? There are two parts to an issue. An
issue consists of (1) the legal and factual proposition (like negligence,
breach, theft, etc.) and (2) the procedural setting, including burdens of proof
and access to information. That second prong is often overlooked. If the
procedural setting doesn’t provide similar sorts of protections, then issuepreclusion, in general, won’t apply even if it’s an identical factual situation
being litigated.
Illinois Central Gulf Railroad v. Parks – The Parks sued the railroad for
personal injuries to Bertha and loss of consortium to Jessie. Then Jessie
sued separately for personal injuries. Is Jessie’s claim precluded? Are any
particular issues precluded? Claim preclusion precludes the relitigation of a
cause of action for which there has been a final judgment. However, issue
preclusion applies if the causes of action are not the same but some of the
issues raised in the second suit were “actually litigated and determined” in
the first suit.
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In issue preclusion, one of the main things you have to be able to discern is
what has actually been litigated . If you don’t know what has actually been
litigated , you don’t know just exactly what has been precluded.
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