Civil Procedure Outline

I. The values of procedureA. Introduction

1. Core theme of course: Substance is largely determined by procedure. Law is not reason alone. It’s reason infused with a concern for values.

2. Taylor Hess: Expelled for having an innocent knife at school; settled before appeal hearing (mandatory expulsion otherwise). Illustrates:a. Dispute resolution v. public norms models of litigationb. Common-sense v. strict fidelity to statutory lawc. Convenience v. inclusivenessd. Lawyers shape outcomese. Procedure shapes outcomesf. Importance of having fair procedures

3. System must treat lawyer’s choices as client’s choices. No way to resolve this without disadvantaging someone (P, D, or other litigants).

4. Ways of regulating society: civil law, criminal law, and agency regulation.B. Financing litigation

1. American rule: pay your own way; British rule: loser pays other side’s fees/expenses.

2. Views of contingent fees: antisocial, insurance, credit system, partnership b/t lawyer and client.

3. Common fund theory: Plaintiff’s lawsuit must involve some fund from which attorney fees can be deducted. It shares fees among members of a class rather than shifting them to another party.

4. Fee waiversa. Civil Rights Act § 1983: Can sue any person who under color of

law deprives your rights created by federal law. b. Civil Rights Act § 1988(b): In an action involving the enforcement

of civil rights, the court may allow the prevailing party (other than the U.S.) reasonable attorney’s fees as part of costs.i. Christianburg Garment Co. v. EEOC: “May” is really

“must.” (Legislative history.)c. Evans v. Jeff D. (US 1986)

i. Settlement in class lawsuit; no attorney fees; relief much greater than what would have been at trial.

ii. Stevens: Fees Act gives plaintiffs another bargaining chip in the litigation process, so fee waivers should be allowed.

iii. Brennan (dissenting): Fee waivers will dry up the pool of attorneys available for poor litigants in civil rights suits.

iv. More dispute resolution v. public norms.d. Buckhannon Board and Care Home, Inc. v. West Virginia

Department of Health and Human Resources (US 2001)i. State made legislative changes that rendered P’s suit

moot. P (catalyst theory) argued that it was entitled to attorney’s fees because it was the prevailing party.

ii. Rehnquist: Not entitled to fees. Prevailing party means someone who has had a judgment rendered in his favor, including a consent decree.

iii. Ginsburg (dissenting): Pro-catalyst theory.iv. Under this rule, marginal defendants are more likely to be

sued than extreme ones because the latter ones are more likely to “give in” once they’ve been sued.

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e. Rule 68: If a defendant makes a settlement offer that plaintiff rejects and plaintiff is awarded a judgment not exceeding the value of the settlement offer, then the plaintiff is required to pay defendant’s post-offer costs. Normally, attorney’s fees are not included. i. Marek v. Chesney (US 1985): Whether attorney’s fees are

included in these cases depends on the statute under which attorney’s fees are demanded.

C. Remedies1. Legal remedies

a. Damagesi. Compensatory: Compensate P for money he has lost or

has had to pay.ii. Liquidated: Agreed to by contract.iii. Statutory: Specified by statute.iv. Punitive: Intended to punish the D.

b. Replevin: Return something wrongfully taken.c. Ejectment: Remove someone from land he does not own.d. Extraordinary writs: Do not come with right to jury trial (since

they’re granted by appellate courts)i. Habeas corpus: Commands jailor to produce body of

prisoner to court.ii. Mandamus: Order to lower court or public official to take

particular action.2. Equitable remedies

a. Injunctionb. Specific performance: Require contract breacher to perform what

he promised.c. Reformation, cancellation, or rescission: Alteration of contract to

correct mistake or obvious injustice.d. Accounting: Resolve who owes what to whom.e. Quiet title: Resolve disputes as to the title to property.f. Constructive trust: Remedy to unjust enrichment. Wrongdoer

becomes constructive trustee and required to turn over, e.g., funds and whatever profits he makes from them.

3. Remedial hierarchy: In order to seek equitable remedies, must demonstrate that legal remedies are inadequate. Easier to demonstrate this if it’s a “public” case rather than just a private dispute. (E.g., Sigma Chemical Co. v. Harris – to protect restrictive covenant, permanent injunctive relief was necessary (to protect trade secrets)).

4. Declaratory judgmentsa. § 2201: To declare rights or other legal relations. Final,

reviewable judgment.b. Rule 57

i. May be tried by jury.ii. May be obtained even if other remedies are available.

5. Provisional relief and due processa. The idea is to preserve the status quo to minimize harm.b. Brown v. Board of Education of Topeka (US 1955)

i. Lower courts that must enforce this decision are supposed to be guided by equitable principles. In determining what

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to do, they must balance public and private needs. The courts have equitable discretion.

c. William Inglis & Sons Baking Co v. ITT Continental Baking Co. (9th

Cir. 1976)i. P is entitled to a preliminary injunction when court finds

that:a. P will suffer irreparable injury if injunctive relief is

not granted;b. P will probably prevail on merits;c. In balancing the equities, Ds will not be harmed

more than P is helped by injunction;d. Granting the injunction is in the public interest.

ii. Grant or denial of preliminary injunction is subject to reversal only if the lower court based its decision upon an erroneous legal premise or abused its discretion.

iii. But there is an alternative test that was not applied at trial:a. One moving for a preliminary injunction assumes

the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.

b. You have to tip the scales with one of the factors, rather than meet all four factors of the other tests.

c. This test is used by the 2nd and 9th Circuits; the 4th Circuit uses the first test.

iv. Because this test was not considered, remand for consideration of it.

d. Walker v. City of Birmingham (US 1967)i. Ds challenged constitutionality of ex parte injunction after

violating it.ii. Must AL’s collateral bar rule be followed, or is it more

significant that a state law prohibiting violation of unconstitutional injunctions itself unconstitutional?a. Collateral bar rule: One cannot challenge a rule if

they disobey it first.iii. Justice Stewart ruled in favor of Ps. Ds did not object to

the injunction pursuant to the prescribed procedures; civil liberties imply the existence of an orderly society. They had two days to do so before they protested. Ds were not constitutionally free to ignore procedures of the law.

iv. Dissent: Procedure serves substantive ends.e. Sniadach v. Family Finance Corp. of Bay View et al. (US 1969)

i. D defaulted on payments to P. D was served the same day as garnishment and challenged the constitutionality of the garnishment procedure.

ii. Douglas: While this may meet due process in extraordinary situations, a prejudgment garnishment is a taking which may impose tremendous hardship on wage earners with families to support.

iii. As a practical matter, this procedure may “drive a wage-earning family to the wall.” Wages are property, so this

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violates the Due Process Clause. There must be a pregarnishment hearing.

iv. Harlan (concurring): Anglo-American tradition supports concept of “fundamental fairness,” which includes notice and hearing.

v. Black (dissenting): Violates states’ legislative rights.f. Fuentes v. Shevin (US 1972)

i. P obtained an ex parte writ of replevin against D. D was served with complaint seeking repossession at the same moment it was seized.

ii. Stewart: Court has generally insisted that a hearing takes place before any taking. The Fourteenth Amendment protects significant property interests, including statutory entitlements, and these are not confined to necessities. Constitution protects higher values than efficiency and speed.

iii. Only in the following cases can outright seizure occur without prior hearing:a. Seizure is directly necessary to secure important

governmental or general public interest.b. Special need for very prompt action.c. State has kept strict control over its monopoly of

legitimate force—government official initiated the seizure and is responsible for determining that it was necessary and justified, under the standard of a narrowly drawn statute.

iv. White (dissent) relies on creditor’s interest. Most of the people in these actions are going to default anyways.

g. Goldberg v. Kelly (US 1970)i. Ps received federal welfare and were not given opportunity

to challenge the termination of their benefits. Only post-termination hearings were available.

ii. Brennan: DP requires a pre-termination hearing. iii. Issues

a. Are welfare benefits protected by the Due Process Clause? Yes. They’re property.1. Two approaches to determining whether

something is protected by the Due Process Clause.

2. First, is it life, liberty, or property? If so, protected; if not, no protection. This is the approach used by the Court since Goldberg.

3. Second, life, liberty, and property stand for larger principles and should be construed as broadly as possible. Any grievous harm deserves due process.

b. What process is due here? A pre-termination hearing.

iv. Balance the harm against the government interest in summary adjudication. Here, the harm outweighs the interests, so procedural due process must be afforded.

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v. Hearing does not need to emulate a trial; it just needs to be at a meaningful time and in a meaningful manner. a. Decision makers must state reasons for decision

and evidence relied on.b. Although the main characteristics of the hearing

make it more like a trial: oral testimony, cross-examination, neutral judge, explanation of decision, attorney help, etc.

vi. Goldberg, then, is a decision that makes no one happy. But Rowe loves it.a. It’s about higher values. It gives people who are

outside the litigation system a chance to be heard. It empowers people on the “uneven terrain” of the law.

h. Matthews v. Eldridge (US 1976)i. Does due process require hearing before termination of

Social Security benefits?ii. Powell: Disabled worker’s financial needs are not as great

as those of welfare recipients are. In addition, there is less evidence to be considered with a hearing of this nature—it usually turns on a doctor’s evaluation—so the value of an evidentiary hearing is lower.

iii. So a hearing is not required.iv. Balancing test

a. Private interest affected by government action;b. Risk of erroneous deprivation of that interest

through the procedures used and the probative value, if any, of additional or substitute procedural safeguards; and

c. Government’s interest, including fiscal and administrative burdens.

v. This test suffers from the “soft-variable factor”: It’s very difficult to quantify. And in this case the dignity and values underlying Goldberg are not present.

vi. Note: This only applies to state action.vii. Mashaw: This decision fails to consider all the values

underlying due process. Utilitarianism doesn’t resolve all issues because it makes it too easy to construe values narrowly. Individual dignity, equality, and tradition/evolution should have been considered more.

i. Rule 65: Injunctionsi. Rule 65(a)(1): No preliminary injunction shall be issued

without notice to the adverse party.ii. Rule 65(b): Temporary restraining order may by granted

without notice to the adverse party only ifa. It clearly appears that immediate and irreparable

injury loss or damage will result to the applicant before adverse party can be heard in opposition, and

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b. Applicant’s attorney certifies in writing the efforts that have been made to give notice and the reasons why notice should not be required.

c. Shall expire within 10 days or less, unless good cause is show for an extended period.

d. Motion for preliminary injunction will be held at earliest possible time and takes precedence over all other matters except older matters of a similar nature. If motion for a preliminary injunction is not made, then TRO is dissolved.

e. On 2 days’ notice (or shorter, if the court so prescribes) to party who obtained TRO, adverse party may move to dissolve or modify the TRO.

iii. Rule 65(c): Applicant must give a security for costs and damages that may be incurred of suffered by any party who is found to have been wrongfully enjoined or restrained. Not required of U.S. or any officer thereof.

j. 28 U.S.C. § 1292(a)(1): The exception to the final judgment rule. This exception exists because injunctions are powerful.

k. Why not to be a public interest lawyer, or the case of Mrs. Gi. Client gets an insurance settlement; AFDC claims it’s

income. Client does everything possible to screw herself at the hearing.

ii. But of course this illustrates the virtues of due process – this upstanding member of society got her chance to “stick it” to the man!

D. The origins of the FRCP1. 28 U.S.C. §2072(b): Rules cannot abridge, enlarge, or modify substantive

rights.a. Rules that incidentally affect litigants’ rights do not violate this if

they are reasonably necessary to maintain the integrity of that system of rules. Burlington Northern R. Co. v. Woods (US 1987)

2. 28 U.S.C. §2073(a)(1): Judicial Conference shall prescribe and publish procedures for prescribing rules.

3. 28 U.S.C. §2074(a): Supreme Court shall send rules to Congress no later than May 1; absent contrary action, the rules become effective no earlier than December 1.

4. 28 U.S.C. §2077(b): Courts other than the Supreme Court must appoint an advisory committee to oversee its prescription of rules.

5. Rule 1: Rules cover disputes that arise under law or equity and shall be construed and administered to do just, speedy, and inexpensive determination of actions.

6. Rule 2: There is one single action.a. This is huge. Transsubstantivity: One set of rules governs all civil

disputes.7. Should the Court be involved in the promulgation of the Rules?

a. Does it have the expertise to make rules for lower courts?b. Inconsistent with Court’s obligation to interpret and decide on the

legality of rules.c. Justices Black and Douglas objected to 1934 regime.

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i. Many of the rules so dramatically change the rights of some litigants that they amount to new legislation.

ii. The rules do not preserve the right to trial by jury.iii. Supreme Court should not have role in rulemaking; under

the current system, it exercises only an occasional veto.d. Statement of Justice White: Get the Supreme Court out of

rulemaking.e. Charles Clark (architect of Rules) disagreed:

i. Rulemaking is a task for an expert, not a town-meeting vote (à la the Judicial Conference).

ii. The Court gives the profession confidence in the Rules.E. Class actions: Rule 23

1. Rule 23(a): Prerequesites:a. Class is so numerous that joinder is impractical;b. Common questions of law or fact;c. Claims or defenses of representative parties are typical of rest of

class;d. Representatives will fairly and adequately protect interests of the

class.2. Rule 23(b): Additional requirements for maintenance (OR):

a. Rule 23(b)(1): Separate actions would create a risk of:i. Inconsistent or varying adjudications which would establish

incompatible standards of conduct for opposing party;ii. Adjudications which would be dispositive of interests of

other members not parties to the adjudication, or substantially impair their interests;

b. Rule 23(b)(2): Opposing party has refused to act on grounds generally applicable to the class, thereby making declarative or injunctive relief with respect to class as a whole appropriate.

c. Rule 23(b)(3): Common questions of law or fact predominate over individual issues. Consider:i. Interest of members in individually controlling their side of

separate actions;ii. Extent and nature of any litigation concerning controversy

already commenced by or against members of the class;iii. Desirability (or undesirability) or concentrating litigation in

particular forum;iv. Difficulties likely to be encountered in management of

class action.3. Rule 23(c): When to certify class action

a. Court must at early practicable time determine whether to certify.i. The order must define class and class issues.ii. Order may be modified before final judgment.

b. Court may direct appropriate notice to 23(b)(1 or 2) classes.c. Court must direct best notice practicable under circumstances to

23(b)(3) classes, including individual notice to all individual members who can be identified through reasonable effort. Must state nature of action, definition of class, class claims/issues/defenses, etc.

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d. When appropriate, action may be maintained as a class for only particular issues or a class may be divided into subclasses, each treated as a class.

4. Rule 23(e): Settlementa. Court must approve settlement, voluntary dismissal, or

compromise of claims/issues/defenses of certified class.i. Court must direct notice in reasonable manner to all

members who would be bound by it.ii. Court may approve settlement (etc.) that would bind class

members only after hearing that it is fari, reasonable, and adequate.

b. Parties seeking approval must submit statement identifying any agreement made.

c. In 23(b)(3) actions, court may refuse to approve settlement unless it affords new opportunity to request exclusion to individual class members.

5. Rule 23(f): If made within 10 days of order, court of appeals may within its discretion permit appeal from order certifying or not certifying a class.

6. Rule 23(g): Class counsela. Unless statute provides otherwise, court that certifies a class must

appoint class counsel.b. Must fairly and adequately represent interests of the class.c. Court must consider:

i. investigatory work counsel has done in this case;ii. experience in handling class actions, other complex

litigation, and claims of this type;iii. knowledge of applicable law, andiv. resources counsel will commit to representing class.

d. Court may also consider any other matter pertinent to counsel’s ability to fairly and adequately represent interests of class.

e. Court may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs, and

f. May make further orders in connection with appointment.g. Court may designate interim counsel.h. When there is only one applicant, court must still consider

requirements above. Must appoint best applicant if there is more than one.

7. Rule 23(h): Attorney fees awarda. Court may award reasonable attorney fees and nontaxable costs

authorized by law or agreement of parties as follows:i. Must be made by motion under Rule 54(d)(2) at time set by

court.ii. Class member or party from whom payment is sought may

object by motion.iii. Court may hold a hearing and must find the facts and state

its conclusions of la on motion under Rule 52(a).iv. Court may refer to amount of award to a special master or

to a magistrate judge as provided in Rule 54(d)(2)(D).F. Langbein: German advantage in civil procedure

1. Characteristics of German system

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a. German complaint proposes means of proof for its contentions.b. The judge serves as the chief examiner.c. German civil litigation is conducted in the absence of a jury.d. There is no “trial”—everything is conducted in a series of hearings.e. Expert testimony is frequently sought. Court takes initiative in

nominating and selecting the expert.f. Judges are career judges. They undergo periodic reviews.

2. Critiquea. Little in the American system is designed to match combatants of

similar skill.b. There can still be an adversarial system after discovery without

one during discovery.c. Attorneys rein in judges who may be prejudiced by directing

discovery.d. Discovery should be less partisan.

G. Fuller: Adversary system:1. Through the adversary system we ensure that the parties are not

prejudiced.2. It’s not the place of lawyers to determine the guilt or innocence of their

clients; duty to represent regardless. Trial is not meaningful unless accused is represented by an attorney who will argue his best.

3. But judges and juries shouldn’t get involved in those issues. They shouldn’t hear an argument until it comes from the lips of the attorney giving it.

H. Chayes: Role of judge in public law litigation1. Bilateral v. triangle theories of litigation (Liberal joinder)2. Retrospective v. prospective fact-finding (What remedies will solve the

problem? What are the public policy effects?)a. Casual v. rigorous fact-finding

3. Self-contained litigation v. consent decrees (imposed v. negotiated remedies)

4. Party-initiated and party-controlled suit v. judge-directed litigation5. Evaluation: Judiciary is not a bureaucratic as other branches.

Competency to hear grievances v. other branches.I. Development of FRCP and PJ: from strict rules, reformed by realists, who

replaced with vague new ideas. Shared goals of:1. Promoting equality2. Having a practical system3. Advancing New Deal ideas in a modern economy, and 4. An anti-corporate slant (putting the little guy on the same foot as the

corporation). II. Pleading

A. Allocating the elements1. Three burdens

a. Burden of pleadingb. Burden of productionc. Burden of persuasion

i. Three standardsa. Civil: Preponderance of evidenceb. Fraud: Clear and convincing evidencec. Criminal: Proof beyond a reasonable doubt

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2. How do we allocate the elements?a. Research case law on how they have historically been treated.b. Look to linguistic clues in the statute.c. Absent the above, apply policy concerns, such as convenience,

policy goals. This is ultimately about who we want to win in close cases.

3. Gomez v. Toledo (US 1980)a. P terminated from police force without hearing and brought a §

1983 suit. D claimed P had to show he acted in bad faith.b. Some executive officers have qualified immunity for acts done on

the basis of an objectively reasonable belief that the acts were lawful.

c. Marshall: But this does not mean that P has to show that D acted under bad faith; it’s D’s burden to show he acted under good faith.i. The plain terms of § 1983 (or the case law) don’t state that

P has to establish bad faith.ii. P can’t know what D’s mental state was.

d. Thus, D has the burden of pleading.e. Rehnquist (concurring): This resolves the burden of pleading but

leaves open the burden of persuasion.B. Rule 7(a): There is a complaint, answer, and reply to an answer if it contains a

counterclaim “denominated as such.” Court may order a reply to an answer.C. Rule 8: General rules of pleading

1. Rule 8(a): A pleading setting forth a claim for relief must contain:a. A short and plain statement of jurisdiction.b. A short and plain statement showing pleader is entitled to relief;

andc. Demand for judgment.

2. Rule 8(b): In short and plain terms, a party must state his defenses to each claim and must admit or deny the statements relied upon by the adverse party.

3. Rule 8(d): When not denied in a responsive pleading, all statements in a pleading (except those which relate to damages) requiring a response are considered admitted. If no response is required or permitted, statements are denied or avoided.

4. Rule 8(e)(2): It is acceptable for a party to set forth inconsistent theories about what happened.

D. While Rule 8 is quite liberal, it doesn’t suffice to aver that “D was negligent.” Bell v. Novick Transfer Co.

E. Rule 9(b): Must plead specifically for fraud or mistake, but can plead generally for malice, intent, knowledge, or other mental states.1. Specificity means things like time, place, and nature of alleged

misrepresentations. Policy is to give allegedly fraudulent party fair notice.2. Burden of proof in fraud cases is “clear and convincing” evidence.

Stradford v. Zurich Insurance Co.F. Private Securities Litigation Reform Act

1. To prevent fraudulent securities fraud lawsuits, Congress enacted this law against Clinton’s veto.

2. P who alleges misleading statements must specify each statement that is alleged to be misleading.

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3. If P makes allegation on information and belief, P must specifically state all facts on which belief is formed.

4. If P alleges fraudulent intent, P must state with particularity the facts giving rise to a strong inference that D acted with requisite mental state.

5. Discovery is stayed until motion to dismiss for failure to state pleading requirements is no longer pending.

6. Professor: This takes away a body of law from the Rules and subjects it to statutory rules.

G. Rule 11: Signing of papers and sanctions1. Rule 11(a): Each paper must be signed by an attorney or an

unrepresented party.2. Rule 11(b): By submitting paper to court, through signing, filing,

submitting, or later advocating, attorney or unrepresented party certifies that to the best of his knowledge and after a reasonable inquiry:a. Rule 11(b)(1): The paper is not being presented for an improper

purpose. (E.g., harass, delay, increase costs of litigation.)b. Rule 11(b)(2): Legal contentions (e.g., claims and defenses) are

warranted by existing law or by a nonfrivolous argument for its extension, modification, or reversal—or the establishment of new law.

c. Rule 11(b)(3): Factual contentions (e.g., allegations) are supported by evidence or if specifically so identified are likely to have evidentiary support after further investigation or discovery.

d. Rule 11(b)(4): Denials of factual contentions are warranted by the evidence or if specifically so identified are reasonably based on lack of information or belief.

3. Rule 11(c): Court may award sanctions against party, firm, or attorney who violates 11(b).a. Rule 11(c)(1)

i. Rule 11(c)(1)(A)a. A party may initiate an 11(c) motion by specifically

stating the circumstances of the alleged violation and serving it to the violator pursuant to Rule 5.

b. The alleged violator has a 21-day “safe harbor” to withdraw the challenged statement, paper, etc. Then the party who initiated the motion may send it to the court.

c. The court may award the initiator reasonable expenses and attorney’s fees.

d. Law firm is jointly responsible for what its employees do, absent exceptional circumstances.

ii. Rule 11(c)(1)(B)a. A court may enter a motion for sanctions on its own

initiative.b. The alleged violator will have to show cause as to

why 11(b) has not been violated.b. Rule 11(c)(2)

i. Sanctions are to be limited to what is sufficient for deterrence.

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ii. Sanctions may include nonmonetary directives, penalty payable to court, or expenses and attorney’s fees to movant.

iii. Sanctions may not be imposed on a party for violation of 11(b)(2).

iv. Sanctions may not be imposed on court’s own initiative unless show cause order is used before voluntary dismissal or settlement.

c. Policy issues: i. How much do you want to require someone filing a

complaint to disclose? Rule 8 v. Rule 11 (liberal v. conservative era).

ii. Rule 11 drives a wedge between the attorney and party because it creates other obligations for the attorney.

d. It really does help if an attorney conducts a reasonable investigation. i. Bad things happen when, say, an attorney fails to find out

that not all parties are diverse in a §1332 action. Walker v. Norwest Corp.

ii. Worse things happen when an attorney refuses to look at evidence from the other side that makes the case moot – but his previous conduct can’t be considered in sanctioning him. Christian v. Mattell, Inc.

iii. It is also quite helpful when an attorney isn’t so stupid as to fail to exhaust administrative remedies. Bridges v. Diesel Services, Inc.

H. Rule 12: Defenses and objections1. Rule 12(b)

a. The following defenses may be made by a pre-answer motion: Three tiers:i. Most favored

a. 12(b)(1): Lack of subject matter jurisdiction.ii. Favored

a. 12(b)(6): Failure to state a claim upon which relief can be granted.

b. 12(b)(7): Failure to join a party pursuant to Rule 19.iii. Disfavored

a. 12(b)(2): Lack of personal jurisdiction.b. 12(b)(3): Improper venue.c. 12(b)(4): Insufficiency of process.d. 12(b)(5): Insufficiency of service of process.

b. If responsive pleading is not required, adverse party may assert any defense in law or fact at trial.

2. Rule 12(c): Motion for judgment on the pleadings. If more than pleadings must be considered, treated as motion for SJ.

3. Rule 12(d): 12(b) and 12(c) motions shall be heard at a preliminary hearing before trial on application of any party, unless court orders a deferral.

4. The “other” pre-answer motion: Rule 12(e): Motion for a more definite statement.

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5. Rule 12(f): Motion to strike from adverse party’s pleading any insufficient defense or redundant, immaterial, impertinent, or scandalous material.

6. Rule 12(g): All Rule 12 motions must be consolidated into one motion or included in the answer, or the party will waive the defense (except as provided in 12(h)(2 or 3)).

7. Rule 12(h)a. Rule 12(h)(1): 12(b)(2-5) motions are waived if omitted (A) from a

preanswer motion or (B) a responsive pleading or an amendment thereof permitted under Rule 15(a) as a matter of course.

b. Rule 12(h)(2): 12(b)(6 or 7) motions or failure to state a legal defense to a claim may be raised in any pleading permitted by Rule 7(a), a 12(c) motion, or at trial on the merits.

c. Rule 12(h)(3): 12(b)(1) may be raised at any time by the parties or court.

I. Rule 15: Amendments to pleadings1. Rule 15(a)

a. Party may amend pleading once as a matter of course so long as no responsive pleading is served or (if responsive pleading is not permitted) action is not on trial calendar, and it is within 20 days of the pleading being served.

b. Otherwise, the court or adverse party must give permission.2. Rule 15(b): If an issue is tried by express or implied consent by the

parties, it shall be treated as though it was brought up in the pleadings.3. Rule 15(c): An amendment relates back when:

a. Rule 15(c)(1): It falls within the applicable statute of limitations; orb. Rule 15(c)(2): Claim or defense arose out of same conduct,

transaction, or occurrence set forth or attempted to be set forth in the original pleading; or

c. Rule 15(c)(3): Change of party or party name.i. If it relates back under Rule 15(c)(2); andii. Is within 120 days of service of the pleading; andiii. Rule 15(c)(3)(A): The party has received notice of the

action and will not be prejudiced by being included; andiv. Rule 15(c)(3)(B): Knew or should have known that the

action would be brought against him but for the mistake.4. Rule 15(d): A party may move for supplemental pleading(s) to set forth

transactions, occurrences, or events that occurred since date of pleading sought to be supplemented. Court may order response to supplemental pleading.

5. Beeck v. Aquaslide ‘N’ Dive Corp. (8th Cir 1977): Consider:a. Undue delayb. Bad faith or dilatory motive on part of movantc. Repeated failure to cure deficiencies by previous amendmentsd. Undue prejudice to opposing partye. Futility of amendment.

6. Whether discovery has completed is often a dispositive factor in a court’s mind in determining whether an amendment “relates back.” Moore v. Baker (11th Cir 1993) and Bonerb v. Richard J. Caron Foundation (WDNY 1994)

III. DiscoveryA. Structure

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1. Rule 26: General provisions governing discovery and duty to disclosea. Rule 26(a): Required disclosures

i. Rule 26(a)(1): A party must disclose to another party, without request and within 14 days of Rule 26(f) conference: a. Contact information of people likely to have

discoverable information disclosing party may use (to support its claims or defenses), and the subjects of information they will likely provide;

b. Copy or description by category and location of all documents, data, and tangible things in possession, custody, or control of party and that disclosing party may use for support;

c. Computation of any category of damages claimed by disclosing party;

d. Insurance agreement, under which someone may be liable for all or part of the damages, for inspection and copying.

e. Exempt: (i) administrative decisions, (ii) habeas corpus or other challenge to criminal proceeding or sentence, (iii) person without counsel in custody of US, state, or state subdivision, (iv) enforcement or quashing of administrative summons or subpoena, (v) action by US to recover benefit payments or (vi) student loans guaranteed by US, (vii) proceeding ancillary to proceedings in other courts, or (viii) enforcement of arbitration award.

ii. Rule 26(a)(2): Expert testimonya. Party required to disclose identity of any person

who will present expert testimony at trial.b. Must be accompanied by a signed written report

that includes a complete statement of the expert’s opinion, any exhibits to be used in support of it, and the reasons for the opinion, the qualifications of the expert, including list of publications over past 10 years, compensation to be paid, and listing of other cases in which witness has testified as expert at trial or by deposition within past 4 years.

c. Disclosures must be made within 90 days before trial date or within 30 days if solely intended to rebut other party’s expert witness.

iii. Rule 26(a)(3): Party must promptly file with court any new information—e.g., witnesses to be presented at trial, witnesses to be deposed, and each exhibit or document to be used. Must be made within 30 days before trial.

iv. Rule 26(a)(4): All disclosures are to be written, signed, and served.

b. Rule 26(b): Discovery scope and limitsi. Rule 26(b)(1): Parties may discover anything that is not

privileged that is relevant to the claim or defense of any party. For good cause, court may order discovery of any

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matter relevant to subject matter. Relevant information need not be admissible at trial; it just needs to be reasonably calculated to lead to evidence that could be admissible.a. Relevance is governed by the substantive law

under which the case arises.ii. Rule 26(b)(2): Discovery may be limited by court if:

a. Rule 26(b)(2)(i): Discovery sought is unreasonably cumulative or duplicative, or obtainable from another source that is less burdensome, expensive, or more convenient;

b. Rule 26(b)(2)(ii): Party seeking discovery has “ample opportunity” by discovery to obtain the information sought; or

c. Rule 26(b)(2)(iii): Expense of proposed discovery outweighs its likely benefit.

iii. Rule 26(b)(3): Party may obtain materials prepared in anticipation of litigation only if it has substantial need of the materials and that the party is without undue hardship able to obtain the substantial equivalent of the materials by other means. a. But there is no disclosure for mental impressions,

conclusions, or legal theories of attorney.b. Without required showing, party may request

statement concerning action or its subject matter previously made by him.

c. Note: This only partly codifies Hickman. Hickman is the governing law for non-tangible materials – e.g., memory from interview with witness.

iv. Rule 26(b)(4): Expert trial preparationa. Party may depose any expert who may testify at

trial.b. Unless “manifest injustice would result,” (i) court

shall require party seeking discovery to pay expert for time spent responding to discovery under this subdivision; (ii) and for discovery obtained by other means in anticipation of trial under 26(b)(4)(B), may pay other party fair portion of fees and expenses reasonably incurred in obtaining facts and opinions from the expert.

c. Rule 26(c): Upon motion by party or person from whom discovery is sought, accompanied by certification that they have attempted in good faith to confer with other affected parties, and for good cause shown, court may make an order protecting the party from annoyance, embarrassment, oppression, or undue burden or expense, if justice so requires, including any of the following: (options listed).

d. Rule 26(d): Discovery may not be sought until there is a Rule 26(f) conference.

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e. Rule 26(e): Duty to supplement or correct disclosure or response to discovery request if ordered by court or in following circumstances:i. Rule 26(e)(1): Party is under duty to supplement 26(a)(1)

disclosures if party learns information is incomplete or incorrect or other corrective information has not been made known to other parties.

ii. Rule 26(e)(2): Party is under duty to supplement response to interrogatory, request for production, or request for admission if party learns that the response is in some material respect incomplete or incorrect or if additional corrective information has not been made known to other parties.

f. Rule 26(f): Except in cases exempted from initial disclosures, parties must confer to discuss the nature and basis of the merits of the case, possibilities for prompt settlement or resolution, to arrange for required initial disclosures, and to develop discovery plan concerning:i. Changes to be made to timing, form, or requirement of

initial disclosures;ii. Subjects on which discovery may be needed, when

discovery should be completed, and whether discovery should be conducted in phases or focused upon particular issues;

iii. What changes should be made in limitations on discovery imposed by Rules;

iv. Other orders that should be entered by court under 26(c) or 16(b and c).

v. Attorneys and unrepresented parties are jointly responsible for arranging conference and submitting to court within 14 days after conference a written report outlining the plan.

vi. Court may order parties to attend conference in person.g. Rule 26(g): Discovery’s Rule 11

i. Rule 26(g)(1): Every disclosure made under 26(a)(1 or 3) shall be signed by at least one attorney of record or an unrepresented party. Signature of attorney or party constitutes a certification that the disclosure is complete and correct (after reasonable inquiry).

ii. Rule 26(g)(2): Every discovery request, response, or objection shall be signed and after reasonable inquiry such signature certifies that the paper is:a. Consistent with the Rules and warranted by

existing law or a good faith argument for the extension, modification, or reversal thereof.

b. Not interposed for an improper purpose.c. Not unreasonable or unduly burdensome or

expensive.iii. Rule 26(g)(3): If a certification is made in violation of this

rule, upon motion or upon court’s initiative, the court shall impose upon the person who made the certification or the party he is representing, or both, an “appropriate sanction,”

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which may include amount of reasonable expenses incurred because of violation, including reasonable attorney’s fee.

B. Methods of discovery1. Rule 28(c): No deposition shall be taken before a person who is a

relative, attorney, or counsel of any of the parties or is a relative of such a person, or is financially interested in the action.

2. Rule 30a. Rule 30(a): When leave may be required for depositions

i. A party may depose anyone by oral examination without leave of court except as provided by 30(a)(2) (next par).

ii. A party must obtain leave of court (to be granted to extent consistent with principles in 26(b)(2)) if the person to be examined is confined in prison or if, without written stipulation of the parties:a. Proposed deposition would result in more than 10

depositions being taken under this rule or Rule 31 by a party (P, D, or 3rd-party D);

b. Person to be examined has already been deposed in the case;

c. Party seeks to take a deposition before time prescribed in Rule 26(d) unless notice contains certification and supporting facts that person will leave the US and be unavailable later.

b. Rule 30(b): Notice of examinationi. Rule 30(b)(1): Party desiring to take oral deposition must

notify all other parties to the action. Must include time/location/name of person to be deposed, etc.

ii. Rule 30(b)(2): Party taking deposition shall state in notice method by which deposition will be recorded and will bear the cost of the recording. Unless court orders otherwise, must be taken by stenographic, sound and visual, or sound means.

iii. Rule 30(b)(3): Any party may request another means of recording if notice is provided to all other parties and the deponent. Additional recording shall be made at party’s expense.

c. Rule 30(c): Examination and cross-examination of deponents may proceed as it would at trial under the Federal Rules of Evidence. All objections shall be noted by officer before whom deposition is being taken, who is also responsible for recording it. In lieu of participating in oral examination, party may serve written questions in sealed envelope on party taking deposition, who shall transmit them to the officer, who will ask the questions to the witness.

d. Rule 30(d)i. Any objection stated during deposition must be stated

concisely and in a non-argumentative and non-suggestive manner.

ii. Unless authorized by court or stipulated by parties, deposition is limited to one day of seven hours. Court

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must allow additional time consistent with 26(b)(2) if needed for fair examination of deponent or if another person or circumstance impedes the examination.

iii. Sanction may be imposed for interference (impediment/delay/other conduct) with a deposition.

iv. Court may order officer taking deposition to stop doing so or to limit it pursuant to Rule 26(c) if, by motion of party or by its own initiative, court determines that examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.

e. Rule 30(g)i. If party giving notice of deposition fails to attend and

proceed therewith but another party attends in person or by attorney pursuant to the notice, he may order the party giving notice to pay the other party reasonable expenses/attorney’s fees.

ii. If party giving notice of a deposition fails to serve a subpoena on a witness and another party attends, court may award expenses and attorney’s fees to other party.

3. Rule 31a. Rule 31(a)

i. Party may take testimony in this manner without leave of court except as provided in 31(a)(2).

ii. Same as 30(a)(2).iii. Must serve notice to all other parties of the identity/contact

information of the witness and officer.iv. Within 14 days after notice and written questions are

served, a party may serve cross questions on all other parties. Within 7 days of being served cross questions, a party may serve redirect questions on all other parties. Within 7 days of being served redirect questions, a party may serve recross questions on all other parties.

b. Rule 31(c): When deposition is filed party taking it must promptly notify all other parties.

4. Rule 32a. Rule 32(a): Deposition may be used against any party in court

hearing/trial/etc. if it is in accordance with the evidence rules and the following provisions:i. Any deposition may be used by any party for contradicting

or impeaching testimony of deponent as a witness.ii. Deposition of a party or anyone who at the time was taking

deposition on behalf of a corporation/agency which is a party may be used by an adverse party for any purpose.

iii. Deposition of witness, party or not, may be used by any party for any purpose if court finds:a. Witness is dead, or b. Witness is >100 miles away from place of trial or

hearing, or is out of US, unless absence of witness appears to have been procured by party offering deposition, or

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c. Witness is unable to attend or testify due to age, illness, infirmity, or imprisonment, or

d. Party offering deposition has been unable to procure attendance of witness by subpoena, or

e. Upon application and notice, exceptional circumstances exist that make it desirable, in the interest of justice, and with due regard to the importance of presenting testimony of witness orally in open court, to allow deposition to be used.

iv. Deposition taken without leave of court under 30(a)(2)(C) cannot be used against a party who demonstrates that he was unable to obtain counsel at the taking of deposition or if he received less than 11 days notice of deposition and promptly filed for protective order under 26(c)(2).

v. Rule 32(a)(4)a. If only part of a deposition is to be offered as

evidence, adverse party may request that for fairness the rest of it is introduced.

b. Substitution of parties pursuant to Rule 25 does not affect use of prior depositions.

b. Rule 32(d)i. Errors and irregularities in notice for deposition are waived

unless written objection is promptly served upon party giving notice.

ii. Objections to taking of deposition.a. Competency of witness or

competency/relevance/materiality of testimony are not waived by failure to make them before or during taking of deposition, unless ground of objection might have been obviated or removed if presented at the time.

b. Errors or irregularities in questions, manner of taking deposition, etc., are waived unless seasonable objection thereto is made at deposition.

c. Objections to form of written questions submitted under Rule 31 are waived unless served in writing upon party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.

iii. Objections to manner in which testimony is transcribed, etc., was waived unless a motion to suppress deposition or a part thereof is made with reasonable promptness after the defect is, or with due diligence might have been, ascertained.

5. Rule 33a. Rule 33(a): Any party may serve upon any other party no more

than 25 written interrogatories, including all discrete subparts, without leave by court. Additional interrogatories may be served by leave of court if it is consistent with 26(b)(2).

b. Rule 33(b): Answers and objections

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i. Each interrogatory shall be answered fully in writing and separately, under oath, unless it is objected to, in which case the party shall state any objections and answer all non-objectionable parts.

ii. Answers are to be signed by party making them and objections by attorney making them.

iii. Has 30 days from service of interrogatories to respond.iv. Objections shall be stated with specificity. Any objection

not stated in a timely manner is waived unless it is excused by court for good cause.

c. Rule 33(c): Contention interrogatoriesi. Interrogatories may relate to any matter discoverable

under 26(b)(1) and may be used at trial to extent allowed by rules of evidence.

ii. Interrogatory is not objectionable if it is otherwise proper but its answer contains opinion or contention that relates to fact or application of law to fact.

d. Rule 33(d): If answer to interrogatory is contained in business records and deriving or ascertaining the answer from them is substantially equally burdensome to either party, it is a sufficient answer to specify records from which answer may be derived and to afford other party reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries.


i. Party may serve on another party a request to inspect tangible things that are within scope of 26(b) and in possession/control/or custody of the other party.

ii. Party may serve on another party a request to permit entry upon land for inspection, measuring, surveying, testing, etc., within scope of Rule 26(b).

b. Rule 34(b)i. Request shall set forth each item to be inspected and

reasonable time, place, and manner of making inspection or other related acts.

ii. Request may be served before time specified in Rule 26(d).

iii. Party upon whom request is served shall provide a written response within 30 days. Response shall state what inspections are permitted and any objections.

iv. Party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with categories in request.

c. Rule 34(c): Persons not a party may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.


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i. If mental or physical condition of a party or person in custody or control of party is relevant, court may order him to submit to physical or mental examination by a licensed/certified examiner or to produce for examination the person in his custody.

ii. Order may be made only by motion for good cause and upon notice to person to be examined and all other parties which specifies time, place, conditions, manner, and scope of examination and the person by whom examination is to be made.

b. Rule 35(b)i. Party that requests examination must furnish copy of

examiner’s report upon request.ii. By requesting and obtaining examiner’s report or deposing

him, party examined waives any privilege in that action or in any other involving the same controversy, regarding testimony of every other person who has examined him or may do so thereafter regarding the same mental or physical condition.


i. A party may serve on another party written requests for admission, for purposes of pending action only, as to the truth of any matters within scope of Rule 26(b)(1) that relate to statements or opinions of fact or of the application of the law to fact. May not be served without leave of court before time in 26(d).

ii. Matter is admitted unless within 30 days after service (or as the court may order or the parties agree in writing) the party to whom request is directed serves a written answer or objection on the party requesting.

iii. Answer shall specifically deny the matter or set forth in detail why answering party cannot fully admit or deny the matter.

iv. Party requesting admissions may move to determine the sufficiency of the answers or objections. Unless court determines that objection is justified, answer shall be served. If court determines answer does not comply with requirements of this rule, it may order that matter is admitted or that amended answer be served.

b. Rule 36(b): Any matter admitted under this rule is conclusively established unless court on motion permits withdrawal or amendment of the admission. Court may admit withdrawal or amendment when it would serve the presentation of the merits and the party who obtained admission fails to establish that he will be prejudiced if a withdrawal or amendment is granted.

C. Sanctions1. See Rule 26(f), above.2. Rule 37: Failure to make or cooperate in discovery: Sanctions

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a. Rule 37(a): Party, upon reasonable notice to other parties and others affected thereby, may apply for an order compelling disclosure or discovery as follows:i. Rule 37(a)(1): Motion must be made to court in which

action is pending.ii. Rule 37(a)(2)

a. Any party may move to compel disclosure and for appropriate sanctions if there is a failure to disclose under Rule 26(a). Motion must include certification that movant has in good faith attempted to confer (or conferred) with party not making the disclosure in effort to secure disclosure without court action.

b. Discovering party may move for an order compelling answer, designation, or inspection if a deponent fails to answer a question under rules 30 or 31, or an entity fails to designate under Rules 30 or 31, or party fails to answer interrogatory under rule 33, or if party fails to respond that inspection will be permitted after request under Rule 34.

iii. Rule 37(a)(3): Evasive or incomplete answer/disclosure/etc. is considered a failure to disclose/answer/respond for purposes of this Rule.

iv. Rule 37(a)(4): Expenses and sanctionsa. Rule 37(a)(4)(A)

1. If motion is granted or if disclosure/discovery is provided after motion is filed, court shall, after affording opportunity to be heard,

2. Require party or deponent whose conduct necessitated motion or party or attorney advising such conduct or both to pay the moving party the reasonable expenses incurred in making the motion

3. Unless court finds that motion was filed without the movant’s first making a good faith effort to obtain the disclosure/discovery without court action

4. Or that opposing party’s nondisclosure/response/objection was substantially justified,

5. Or that other circumstances make an award of expenses unjust.

b. Rule 37(a)(4)(B): If motion is denied, court may issue protective order and shall, after opportunity to be heard, require moving party (or other responsible people) to pay to party or deponent who opposed motion reasonable expenses incurred in opposing motion, unless court finds that making of motion was substantially justified or that other circumstances make an award of expenses unjust.

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c. Rule 37(a)(4)(C): If motion is granted in part and denied in part, court may do a combination of the above, in a just manner.

b. Rule 37(b)i. Rule 37(b)(1): If deponent fails to be sworn or to answer

question, it may be considered contempt of court.ii. Rule 37(b)(2): If a party or his designee (if party is entity)

fails to obey order to provide or permit discovery, court my make such orders in regard to failure as are just, including: a. Order that matters regarding which order was made

are established for purposes of action; b. Order refusing to allow disobedient party to support

or oppose designated claims or defenses, or prohibiting the party from introducing certain matters into evidence;

c. Order striking out pleadings or parts thereof, or staying further pleadings until order is obeyed, or dismissing action or proceeding or any party thereof, or rendering default judgment against disobedient party;

d. In lieu of any above orders or in addition thereo, treating failure to obey orders as content of court (except orders to submit to physical or mental examination);

e. When a party fails to comply with order under 35(a), requiring party to produce another for examination, any orders in (i-iii), unless party failing to comply is unable to produce such person.

f. In lieu of foregoing orders or in addition thereto, court shall require party failing to obey order or attorney advising that party or both to pay expenses caused by failure, unless court finds that failure was substantially justified or that other circumstances make award of expenses unjust.

c. Rule 37(c)i. Party who without substantial justification fails to disclose

information required by 26(a) or 26(e)(1) or to amend prior response as required by 26(e)(2) is not permitted to use as evidence at trial/hearing/motion any witness or information not so disclosed. a. Court may award attorney’s fees and other

expenses or other sanctions authorized under 37(b)(2) and may include informing jury of failure ot make disclosure.

ii. If party fails to admit genuineness of any document or truth of any matter as required under 36, and party seeking to prove it later proves it, he may apply for order requiring other party to pay expenses incurred in making htat proof. a. Court shall make order unless it finds that the

request was objectionable under 36(a), admission sought was of no substantial importance, the party

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failing to admit had reasonable ground oto believe party might prevail on this matter, or there was no other good reason for failure ot admit.

d. Rule 37(d)i. If party or representative (if party is an entity) fails to

appear before officer at deposition, respond to interrogatories, or serve written response to request for inspection, court may on motion make such orders in regard to failure as are just, including what is specified in 37(b)(2).

ii. Any motion under the last two options shall include certification that movant has conferred in good faith or attempted to do so with other party.

e. Rule 37(g): If party or party’s attorney fails to participate in good faith in development and submission of proposed discovery plan under Rule 26(f), the court may require such party or attorney to pay any other party reasonable expenses caused by the failure.

D. Scope and limits of discovery1. Relevance

a. Davis v. Precoat Metals (NDIL 2002)i. In class action discrimination suit, Ps sought complaints by

other employees working at same plant and at the same time in discovery. Permissible?

ii. Yes. It is narrowly tailored to the specific allegations in the Ps’ complaint.

b. Steffan v. Cheney (DC Cir. 1990): Review of an administrative decision is confined to the grounds upon which the record discloses the action was based.

2. Privilegea. Most common privileges are self-incrimination, attorney-client,

doctor-patient, and psychotherapist-patient.b. Note that a party who invokes self-incrimination may waive the

privilege, but once he starts discussing the privileged information, he cannot stop. E.g., denies participation in crime—cannot fail to be cross-examined.

c. Upjohn Co. v. United States (US 1981)i. Control group test: attorney-client privilege extends only to

the top management of a corporation.ii. This is incorrect. Low- and mid-level employees can also

have information relevant to an attorney’s case. This test frustrates the purpose of attorney-client privilege.

d. Butler v. Rigby (EDLA 1998): Printouts of number of patients referred to by P’s lawyers is discoverable, but not listing of past and current patients.

e. Marcus: Discovery containment redux: some discrimination claims are only possible because of broad discovery. Employment discrimination law has been built around it.

E. Work product1. Brady v. Maryland (US 1963): All evidence which may be favorable to

accused and is material to guilt or punishment must be given to the defense.

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2. United States v. Ruiz (US 2002): Material impeachment evidence does not need to be disclosed to the other party before a plea agreement with a criminal D.

3. Hickman v. Taylor (US 1947)a. D’s attorney interviewed survivors of a boat accident in

anticipation of litigation. P’s attorney sought, inter alia, transcripts of those interviews. Privileged?

b. Not by attorney-client privilege; it does not extend to communications, writings, etc. prepared by counsel for his own use.

c. Public policy against allowing mental impressions to be discoverable.

d. These cannot be discoverable without adequate justification. But mental impressions are absolutely privileged.

e. The P in this case just wanted the statements to help him prepare for trial. The policy implications of allowing P to have this are undesirable.

f. Contention interrogatory (one party seeks to discovery broad allegations underlying general complaint) creates a number of work product problems, as it delves into an attorney’s mental impressions about the contentions underlying a legal theory.

g. Note that “in anticipation of litigation” is usually interpreted very strictly: In anticipation of actual, not supposed, litigation.

h. Broad discovery v. Hickman tension.F. Required disclosures

1. Statement of Justice Scaliaa. Required disclosures amendment will increase the burden on

judges as the parties battle out what is “relevant” to “disputed facts.”

b. It also requires that an attorney act, in effect, in the interest of his adversary. This is a threat to the adversary system.

c. The amendments do not have popular support in the profession.d. The amendment has not been well-tested.

2. Coleman: Civil disclosurea. Selective implementation of the required disclosure amendments

has increased the likelihood of forum shopping.b. Helps lazy lawyers.

IV. TrialA. Default judgments and dismissals

1. Rule 41a. Rule 41(a): Voluntary dismissal

i. By P: May be dismissed without order of court by filing notice of dismissal before D’s answer is served or of motion for SJ, whichever comes first, or by filing stipulation of dismissal signed by all parties.a. Dismissal is without prejudice.b. Adjudication upon merits when filed by P who has

before dismissed same claim in federal or state court.

ii. By court: Upon such terms as court deems proper. If counterclaim has been pleaded by D prior to service upon

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D of P’s motion to dismiss, action shall not be dismissed against D’s objection unless counterclaim can remain pending for independent adjudication by court. This is without prejudice.

b. Rule 41(b): Involuntary dismissali. If P fails to prosecute or to comply with rules or court order,

D may move for dismissal. This is an adjudication upon the merits (as well as any other dismissal but for failure to join, lack of jurisdiction, or for improper venue).

c. Rule 41(c): Dismissal of counterclaim, third-party claim, or cross-claim shall be made pursuant to rules applicable to P’s voluntary dismissal (before presentation of evidence at trial if no responsive pleadings).

d. Rule 41(d): If P has previously dismissed same claim against same D, court may order costs for previously dismissed action as it deems proper and may stay proceedings until P has complied with order.

2. Rule 55a. Rule 55(a): When someone against whom a claim is brought fails

to plead or otherwise defend, clerk shall enter party’s default.b. Rule 55(b): Judgment by default may be entered:

i. By clerk: When P’s claim is for a sum certain or computable sum, request affidavit from P about amount due; enter judgment for that amount and costs against D, if D has failed to appear and is not an infant or incompetent person.

ii. By courta. In all other cases, P shall apply. b. Unless there is a representative, no default against

infant or incompetent. c. If D has appeared, must be served with written

notice of application at least 3 days prior to hearing on application.

d. If necessary to determine damages or facts by evidence, court may conduct hearings or order reference as it finds necessary and proper, and shall grant a jury trial as required by the 7th Amendment.

c. Rule 55(c): Court may set aside default for good cause or default judgment in accordance with Rule 60(b).

d. Rule 55(e): No default against US or officer/agency thereof unless P establishes claim or right to relief by evidence satisfactory to court.

B. Long shadow of trial1. Rule 49

a. Rule 49(a): Court may order jury to return only a special verdict in form of special written finding upon each issue of fact. Court shall give jury explanations and instructions about matter submitted as may be necessary to enable it to make its findings upon each issue. If court omits issue of fact raised by pleadings or evidence,

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jury trial for those issues waived unless it’s demanded before jury retires.

b. Rule 49(b): Court may order jury to return a general verdict with answers to interrogatories as to specific facts. When answers are harmonious, judgment entered pursuant to Rule 58.


i. If during a jury trial a party has been heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, court may determine issue against that party on a claim or defense that cannot be maintained or defeated without favorable finding on that issue.

ii. May be made at any time before case is submitted to jury.b. Rule 50(b)

i. May renew above motion by filing it no later than 10 days after entry of judgment and may alternatively request a new trial or join a motion for a new trial under Rule 59.

ii. Court may direct entry of judgment as a matter of law, order a new trial, or (if a verdict was returned) allow the judgment to stand.

c. Rule 50(c)i. If renewed motion is granted, court shall also rule on

motion for new trial and shall specify grounds for its ruling.ii. If the motion for a new trial is conditionally granted, it does

not affect the finality of the judgment.iii. Motion for new trial under Rule 59 by party against whom

judgment as a matter of law has been rendered shall be filed no later than 10 days after entry of judgment.

d. Rule 50(d)i. If motion for judgment as a matter of law is denied,

prevailing party (on the motion) may explain why he is entitled to a new trial in the event the appellate court rules that the trial court erred in denying the motion for judgment.

ii. If appellate court reverses judgment, nothing precludes it from determining that appellee is entitled to new trial or from directing trial court to determine whether new trial should be granted.

3. Renewed motion for judgment as a matter of law – called judgment non obstante veredicto or notwithstanding the verdict at common law.a. Can’t overturn a verdict just because it’s based on highly

circumstantial evidence. Jury is permitted to pile inference upon inference to get to a verdict. Norton v. Snapper Power Equipment.

4. Note: The renewed motion must be on the same grounds as the one at the close of evidence. You can’t bring up new reasons.

5. Rule 59a. Rule 59(a): New trial may be granted to any party on any or all of

the issues, wheni. There has been a jury trial,

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a. For the reasons new trials are granted in actions at law; or

ii. There has been a bench trial,a. For reasons which rehearings have been granted in

actions at equity.b. In these actions, courts may take additional

testimony or find more facts.b. Rule 59(b): Must be filed < 10 days after entry of judgment.c. Rule 59(c): If motion is based on affidavits, must be filed with

motion; opposing party has 10 days after service to file opposing affidavits. (Court may alter this timeline.)

d. Rule 59(d): Within same amount of time, court may order new trial that would justify granting one on a party’s motion. Can grant one for a ground not specified in motions if parties have notice and opportunity to be heard. Must specify reasons for granting new trial.

e. Rule 59(e): Motion to alter or amend judgment shall be filed < 10 days after entry of judgment.

f. Frequent reasons for granting a new trial:i. Flawed procedures—e.g., lawyer has made impermissible

argument to the jury or bad piece of evidence admitted.ii. Flawed verdicts—e.g., verdict is against the weight of the

evidence.6. Rule 60

a. Rule 60(b): On motion and such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:i. Mistake, inadvertence, surprise, or excusable neglect;ii. Newly discovered evidence which by due diligence could

not have been discovered in time to move for a new trial under 59(b).

iii. Fraud, misrepresentation, or other misconduct of the adverse party;

iv. Judgment is void;v. Judgment has been satisfied, released, or discharged, or a

prior judgment on which it was based has been reversed or vacated, or it is no longer equitable that the judgment should have a prospective application; or

vi. Any other reason justifying relief from the operation of the judgment.

vii. Motion shall be made within a reasonable time. For the first three reasons, not >1 year after judgment was entered. Motion does not affect finality of judgment.

C. Summary judgment1. Rule 56

a. Rule 56(a): Claimant may move with or without supporting affidavits for SJ in his favor >20 days after action commences or after service of motion for SJ by adverse party.

b. Rule 56(b): D may move for SJ at any time with or without supporting affidavits.

c. Rule 56(c)

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i. Motion shall be served > 10 days before hearing date. Adverse party may serve opposing affidavits before the day of the hearing.

ii. Judgment shall be rendered if pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, show that there is no GIMF and that the moving party is entitled to judgment as a matter of law.

iii. An interlocutory SJ may be rendered on issue of liability alone even though there is a GI as to damages.

d. Rule 56(d): If motion is made on only part of the case, the court at the hearing shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. Shall be deemed established at trial.

e. Rule 56(e): Affidavits shall be made on personal knowledge, shall set forth facts that will be admissible in evidence, and shall show affirmatively that affiant is competent to testify about the matters stated therein. When motion for SJ is made and supported as provided in this rule, adverse party may not rest upon mere allegations or denials of adverse party’s pleading, but must be supported by affidavits or other forms showing that there is a GI for material trial. If adverse party does not so respond, SJ shall be entered for movant.

f. Rule 56(f): If opposing party cannot for reasons stated present by affidavit facts essential to justify his opposition, court may refuse application for SJ or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

g. Rule 56(g): If it appears to the court at any time that any affidavit presented pursuant to this rule is made in bad faith or solely for the purpose of delay, court shall order party employing them to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.

2. The role of SJ: necessary part of Rules, test for pleading, gatekeeper, makes discovery more important.

3. Wald: SJ has been over-used to become more of a gestalt verdict early on. This discriminates against the “little people”/minority litigants.

4. Adickes v. S.H. Kress & Co. (US 1970)a. P was a white teacher at an alternative school for black kids. She

went into D’s restaurant with some of her students and wasn’t served. She was then arrested on a bogus vagrancy charge.

b. Claimed that police officer and restaurant conspired.c. D moved for SJ; P submitted paper which wouldn’t be admissible

as evidence. But SJ for D reversed because it is the moving party’s responsibility to negate P’s case; D didn’t foreclose possibility that there was a conspiracy.

5. Arnstein v. Porter (2nd Cir 1946): P sued D over a copyright dispute on an absurd theory and thin evidence; D moved for SJ, claiming that P didn’t have access to his materials. SJ for D reversed; because the conflicting

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evidence is a credibility question for the jury, D must prove indubitably that he didn’t plagiarize P.

6. Celotex Corp. v. Catrett (US 1986)a. P sued D for his asbestosis. D moved for SJ; granted because P

could not demonstrate that he was exposed to D’s products.b. Burden in SJ is on party who has burden at trial. SJ is an integral

part of the Rules, not a disfavored procedural shortcut.c. SJ for D upheld. (Rehnquist)d. Brennan (dissenting): Celotex didn’t meet its burden; movant must

affirmatively demonstrate that there is no evidence.7. Matsushita v. Zenith (US 1986): When a MP has carried its burden under

Rule 56, then the NMP must show with specific facts that an IMF is truly G.

8. Anderson v. Liberty Lobby (US 1986): Evidence presented by NMP is to be believed and inferences favorable to him are to be drawn; credibility is for the jury, not the judge.

9. Houchens v. American Home Assurance Co. (4th Cir 1991)a. P’s husband mysteriously disappeared abroad. Was it an

accidental death, covered by her life insurance policies?b. SJ for D. There isn’t enough evidence to demonstrate that H died

due to an accident. It was a legally permitted presumption that he was dead. Too much supposing would have to occur to assume he died accidentally. Other cases had much stronger facts.

10. It’s very important, then, to take discovery seriously – e.g., Bias (parents attempted to negate D’s depositions of friends tending to show that Ps’ son was a drug user with their & the coach’s statements about their son – insufficient).

D. Judge or jury1. 7th Amendment: In suits at common law, where value in controversy shall

exceed $20, right to jury trial shall be preserved, and no fact tried by jury shall be reexamined than according to rules of common law.a. Three problems: new technology, new procedures, and new

causes of action.2. Rule 38

a. Rule 38(b): Any party may demand a jury trial for any issue entitled to it by:i. Serving upon other parties a demand in writing after

commencement of action and < 10 days after service of last pleading directed to such issue, and

ii. Filing the demand as required by Rule 5(d).b. Rule 38(c): Party may specify issues which party wishes to be

tried by jury in demand. Otherwise party shall be deemed to have demanded trial by jury for all issues so triable. Within 10 days of service of demand, other parties may demand jury trial for any other issues entitled to such.

c. Rule 38(d): Failure to demand jury trial constitutes waiver by that party of jury trial. Demand for jury trial cannot be withdrawn without the consent of the parties.

3. Rule 39a. Rule 39(a): When issues are demanded to be tried by jury, they

shall be so tried, unless

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i. Parties or their attorneys of record consent to bench trial by written stipulation filed with court or by equivalent oral stipulation or

ii. The court upon motion or of its own initiative finds that a right to jury trial by some or all issues does not exist.

b. Rule 39(b): Court may in its discretion upon motion may order jury trial for any or all issues (for which jury trial has not been demanded).

c. Rule 39(c): In issues not triable by jury, the court may on its own initiative of motion try any issue with an advisory jury or (except in actions against US when a statute of US provides for bench trial) the court may order jury trial with consent of both parties, where verdict will have same effect as if jury trial had been a right.

4. Rule 47a. Rule 47(a): Court may permit parties or their attorneys to conduct

examination of prospective jurors or it may do so. In the latter case, court shall permit parties or their attorneys to supplement examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper.

b. Rule 47(b): Shall allow number of peremptory challenges provided by § 1870.

c. Rule 47(c): Judge may for good cause excuse juror from service during trial or deliberation.


i. A party may at the close of evidence or at an earlier reasonable time that the court directs, file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests.

ii. After the close of evidence, a party may:a. File requests on issues that could not have been

reasonably anticipated at an earlier time for the above requests, and

b. With the court’s permission file untimely requests for instructions on any issue.

b. Rule 51(b)i. The court must inform the parties of its proposed

instructions and proposed action on the requests before instructing the jury and before final jury arguments;

ii. The court must give the parties an opportunity to object on the record and out of the jury’s hearing to the proposed instructions and actions before the instructions and arguments are delivered;

iii. The court may instruct the jury at any time after trial begins and before the jury is discharged.

c. Rule 51(c)i. A party who objects to an instruction or the failure to do so

must do it on the record, stating distinctly the matter objected to and the grounds for the objection.

ii. An objection is timely if:

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a. A party that has been informed of an instruction or action before jury is instructed and the final arguments objects after close of evidence, as provided by Rule 51(a).

b. Or a party that has not been informed objects promptly after learning that the instruction or request will be, or has been, given or refused.

d. Rule 51(d)i. A party may assign as error on appeal:

a. An error in an instruction actually given if that party made a proper objection under Rule 51(c), or

b. A failure to given an instruction if that party made a proper request under Rule 51(a) (unless court made a definitive ruling on the record rejecting the request) also made a proper objection under Rule 51(c).

ii. A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by this subdivision.

6. The 7th Amendment is a constitutional stupidity.a. Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry (US

1990)i. Ps were laid off and recalled as temporary workers a

number of times; asked union to file a grievance. Union did it twice and lost and refused to do it a third time. Ps sued the union and their employer.

ii. Court applied historical test to determine whether Ps were entitled to jury trial. Was it a breach of trust? Malpractice action? Breach of contract?

iii. Court says we need to consider the nature if the issue to be tried, not the character of the overall action. Here, because there’s a tie in terms of what the issue is (akin to breach of contract (L) and breach of trust (E)), look at the remedy to be sought. Backpay is legal in nature, so let’s give them a jury trial.

iv. Brennan (concurring): Just look at the remedy; this historical test is ridiculous.

b. The court has tended to allow right to jury trial under 7th Amendment for new causes of action that seek money damages when Congress is silent (ADEA, FLSA, Title VIII of Civil Rights Act). But not with Title VII (employment discrimination) – not clear whether backpay is a legal remedy.i. But right to jury trial has been very restricted in patent

cases.ii. But the courts usually defer to Congress when it says

whether there is or is not a right to jury trial.c. Beacon Theatres v. Westover (US 1959): Right to jury trial is

constitutional, but no similar requirement protects bench trials. (e.g., no right to bench trial in equitable claims.) Absent exceptional circumstances, cannot try equitable claims first to prevent trying the case by jury.

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7. Supplementary materialsa. Amateurish laypeople v. important role in democracy.b. Juries as legislative assemblies.c. Juries legitimize stringent decisions.d. More disagreement among judges and juries when it comes to

damage issues than liability. (Jury awards about 20% higher)e. 80% of jury trials conducted in US.f. Justice Black on juries: Got very sympathetic Ps with weak cases

before juries and won.g. The case of medical malpractice: Juries have to decide standards

of medical care. This creates unreliable justice.E. Jury selection

1. First step: Pool of prospective jurors summoned. Then the members of the jury are selected from the pool.a. § 1861: Entitled to “juries selected at random from a fair cross

section of the community.”b. § 1862: No exclusion based on race, color, religion, sex, national

origin, or economic status.c. § 1867(c): Party may challenge jury pool before voir dire or within

7 days after party discovered or could have discovered by the exercise of diligence the grounds therefore, whichever is earlier, by moving to stay the proceedings on the grounds of substantial failure to comply with provisions governing petit jury selection.

d. § 1870: 3 peremptory challenges per party (multiple parties are considered one for this purpose).

2. Marshall (concurring) in Batson v. Kentucky: a. Peremptory challenges should be abolished because they’re used

to exclude black jurors. Anyways, it’s been consistently held that right to peremptories is not “of constitutional magnitude.”

b. The majority in this case had held that whether a prima facie case of discrimination has been established required consideration of all relevant circumstances, including whether there has been a pattern.

3. Edmonson v. Leesville Concrete Co. (US 1991)a. P (black) sued D for negligence and D used 2 of its peremptories

to exclude blacks from the jury. P is black. D gave a bogus race-neutral explanation for why he excluded potential jurors.

b. Is it state action?c. Kennedy: Yes. When private litigants select jurors, they serve

important function within government and act with its substantial assistance.

d. So courts must entertain an equal protection challenge to racially discriminatory peremptory exclusions.

e. Majority in Batson applies to civil cases.f. O’Connor (dissenting): Not everything that happens in the

courtroom is state action.g. Scalia (dissenting): This adds another complexity to the system.

One more responsibility for the courts. Peremptories are often used to assure a diverse jury.

V. Final judgmentsA. Rule 13

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1. Rule 13(a)a. Pleading shall state as counterclaim any claim which arises out of

same transaction or occurrence as opposing party’s claim and does not require presence of third parties over which court cannot acquire jurisdiction.

b. Pleader need not include claim if at the time action was commenced it was the subject of another pending action, or the opposing party brought suit upon claim by attachment or other process by which court did not acquire jurisdiction to render a person judgment on that claim, and that the pleader is not stating an counterclaim under this rule.

2. Rule 13(b): Pleading may state as counterclaim any claim against an opposing party not arising out of the same transaction or occurrence.

3. Rule 13(c): Counterclaim may or may not diminish or defeat the recovery sought by the opposing party. May claim relief exceeding amount or different in kind from that sought in pleading of opposing party.

4. Rule 13(e): Claim which matured or was acquired after serving a pleading may with permission of court be presented as a counterclaim by supplemental pleading.

5. Rule 13(f): When justice so requires, pleader may with leave of court assert counterclaim omitted by oversight, inadvertence, or excusable neglect set up the counterclaim by amendment.

6. Rule 13(g): Pleading may state cross-claim against co-party arising out of transaction or occurrence that is subject matter either of original action or counterclaim therein or relating to any property that is subject matter of original action.

B. Article IV, § 1: FF&C by each state to laws, records, and judicial proceedings of every other state.

C. § 1738: Federal courts shall give FF&C to acts, records, and judicial proceedings of the states.

D. Res judicata: Claim preclusion1. Requirements:

a. Same claimb. Same partiesc. Valid, final judgmentd. On the merits

2. Same claima. Efficiency

i. Code pleading systems use a restrictive “core operative facts” or “same evidence/primary right” test.a. Frier v. City of Vandalia (7th Cir 1985)

1. P’s car was towed by the city because it violated a city ordinance. P refused to pay fines and filed a replevin action to get it back, in state court. Lost. P then filed a §1983/due process claim in federal court. Claim precluded?

2. Same evidence/underlying claim test v. transactional test.

3. Yes, precluded. Involve same core operative facts.

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ii. The federal courts use a “same transaction” test.a. Restatement (2nd) of Judgments § 24: “Transaction”

is defined pragmatically. Consider whether facts are related in space, time, origin, or motivation; whether they form a convenient trial unit; whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.

b. Goldberg – consider opportunity to be heard/values of system.

iii. Rush v. City of Maple Heights (OH 1958): P sues for property damage after running into a pothole. After she wins, she files another suit for personal injuries. Precluded because they’re the same tort – arise from the same transaction.

iv. Semtek Intl Inc. v. Lockheed Martin Corp. (US 2001): Diversity federal judgment has same preclusive effect as if that judgment had been rendered in state court. Apply preclusion law of state where court sits.

b. Consistencyi. Martino v. McDonald’s System, Inc. (7th Cir 1979)

a. P and D had a consent decree (court-approved settlement with findings of fact) regarding P’s breach of a non-compete agreement; P then filed an antitrust action against D regarding the non-compete agreement.

b. Counterclaim exception: when there is no compulsory counterclaim rule, and it could have been raised in the first lawsuit. (Suppose a lawsuit ends in early stages. Judicial economy is not obstructed by allowing the other cause of action to proceed.)

c. Precluded because it’s a direct attack on the previous judgment, even though there’s no compulsory counterclaim rule.

3. Against same partiesa. Searle Brothers v. Searle (UT 1978)

i. In divorce action, property S was granted to W to even out distribution. In this action, sons claimed that S was a partnership with H, and that they were entitled to their share of it.

ii. Ps’ interest in the property wasn’t identical to H’s and their interests weren’t represented in the prior action (couldn’t be joined). Thus, they’re not precluded.

iii. Dissent: Actively participated in lawsuit but asserted no claim for themselves.

iv. Note: Three situations usually result in binding a nonparty to the results of a lawsuit:a. Substantive legal relationships:

1. Successive owners of property.2. Decedents and their survivors (for injuries

and wrongful death, respectively).

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3. Beneficiary-trustee. Heirs-executors.4. Mother-child NOT considered the same.

b. Express agreement to be bound by the decision.1. E.g., A and B are passengers in car driven

by C, which gets in accident. Bring lawsuits against C. A agrees to be bound by court’s determination of C’s liability in B’s suit if C doesn’t contest extent of injuries.

c. Instances of “procedural representation”:1. Guardians ad litem appointed to represent

minors or incompetents.2. Class actions.3. Virtual representation.

4. After a valid, final judgment is entereda. Usually, when a judgment is appealed, it still has preclusive effect. b. In federal courts, it’s when the trial court rules.c. In CA, it’s when the supreme court rules.

5. On the meritsa. Obviously met if there was a jury trial.b. But what if suit was dismissed for party’s misbehavior?

i. Dismissal would be futile if party could refile.c. What about a 12(b)(6) dismissal?

i. Yes. Because of the ease of amendments and the lax pleading requirements, see Rule 41(b).

ii. But some states don’t have this rule.d. Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (6th Cir 1990)

i. P owed money to D; D sued P—counterclaimed for fraud/churning; refused to comply with discovery requests. Counterclaim dismissed with prejudice. (State court action.) P then filed securities law claim in federal court.

ii. Dismissal for res judicata reversed. State judgment cannot have preclusive effect when state court doesn’t have jurisdiction over claim (federal exclusivity for securities claims). So even though this was on the merits, it can’t be given preclusive effect.

6. Limits on claim preclusiona. Restatement (2nd) on Judgments § 26: Exceptions to claim

preclusion:i. First judgment was plainly inconsistent with fair and

equitable implementation of statutory or constitutional scheme, or it is the sense of the scheme that P should be able to split his claim.

ii. For substantive policy reasons, P is given option to sue once for total harm, or to sue from time to time for damages incurred to date of suit, and chooses latter option.

iii. P can show with clear and convincing evidence that preclusion policies overcome for an extraordinary reason,a. Such as the apparent invalidity of a continuing

restraint or condition having a vital relation to personal liberty

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b. Or the failure of the prior litigation to yield a coherent disposition of the controversy

E. Collateral estoppel: Issue preclusion1. Requirements

a. Same issue of fact or lawb. Fully litigated and determinedc. After a valid, final judgmentd. Essential to the judgment

2. Same issue of fact or lawa. Must consider procedures under which an issue is decided –

criminal v. civil v. administrative. Different procedures make different issues.

3. Is actually litigated and determineda. Illinois Central Gulf Railroad v. Parks (IN 1979)

i. D’s train collided with Ps. P1 recovered for personal injuries. P2 then sued for loss of consortium of P1.

ii. Jury verdict for D. Was it based upon contributory negligence or minimal evidence? Court says that we should assume the latter since there is not enough evidence of the former.

b. Evidence outside of the record may be used to establish what issues were actually decided in the previous litigation.

4. By a valid and final judgment (entered pursuant to Rule 54)5. Determination is essential to the judgment.

a. Restatement (2nd) of Judgments § 27, Comment i: When there are two or more alternative grounds for a decision, none should have preclusive effect in a subsequent suit.

b. (Party may be deterred from appealing because there’s something else to uphold the case on and determination in alternative may not have been as carefully considered.)

c. But: Comment o: If appellate court upholds trial court’s decision, preclusive effect. Conclusive as to only the determinations the court upholds.

6. Between which parties?a. Principle of mutuality has essentially eroded in issue preclusion.

Extend so the “victim” has a full and fair the full and fair opportunity to litigate the matter in the first suit.

b. Non-mutual offensive issue preclusioni. Parklane Hosiery Co. v. Shore (US 1979)

a. In stockholder’s class action, allegations that Ds (corporation and its officers) issued a materially false and misleading proxy statement.

b. SEC filed basically the same suit and prevailed. Ps moved for partial SJ on relitigating the issue.

c. NMOIP does not promote judicial economy like NMDIP does. Also NMOIP is unfair to Ds who, say, have less at stake in the first lawsuit and may put up a non-spectacular defense as a result.

d. When P could have easily joined in the earlier action NMOIP should not be allowed.

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e. Issue preclusion is not repugnant to the 7th Amendment.

f. Here, Ps couldn’t be joined in the first action and D had a full and fair opportunity to litigate his defenses in the first action. Issue precluded.

g. United States v. Mendoza (US 1984): Parklane doesn’t apply to the US.

ii. State Farm Fire & Casualty Co. v. Century Home Components (OR 1976)a. Fire started allegedly due to D’s negligence. Over

50 actions for recovery due to the fire were initiated. Some Ps won, others lost; they attempted to issue preclude liability issue by taking advantage of winning verdicts.

b. When there are inconsistent determinations in pending actions, it would be patently unjust to preclude the losing party from relitigating the issue.

iii. Restatement (2nd) of Judgments § 29: Factors to consider in whether a party should be allowed to relitigate: a. Procedural opportunitiesb. Joinder in first actionc. Inconsistencyd. Compatibility with administrative schemee. Special relationships in one actionf. Prejudice of interestsg. Reconsideration of law issue, or h. Other compelling circumstances.

c. Non-mutual defensive issue preclusion: Invented by Traynor in 1942; generally accepted since mutuality was abolished. P chose to file the lawsuit.

7. Limits on issue preclusiona. Restatement (2nd) on Judgments § 28: May relitigate when:

i. Party against whom preclusion is sought could not seek review of first action as a matter of law.a. E.g., criminal acquittal.

ii. Issue is one of law and two actions involve claims that are substantially unrelated and a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the law.

iii. New determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them.

iv. Party against whom preclusion is sought had significantly higher burden of persuasion in initial action with respect to that issue, the burden has shifted to his adversary, or the adversary has a significantly heavier burden than he had in the first action.

v. There is a clear and convincing need for a new determination of the issue because of:

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a. The potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the action

b. Because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or

c. Because the party sought to be precluded as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

VI. Settlement and ADRA. Rule 16

1. Rule 16(a): In any action, court may order unrepresented parties and attorneys to appear before it for a conference(s) before trial for such purposes as: a. Expediting disposition of action.b. Establishing early and continuing control so that case will not be

protracted because of lack of management.c. Discouraging wasteful pretrial activities.d. Improving quality of trial through more thorough preparation.e. Facilitating settlement.

2. Rule 16(b): After receiving 26(f) report, court shall enter scheduling order that limits time to join parties, file motions, and complete discovery. May also include modifications on time limits for disclosures, dates for conferences, and any other matters. Shall be made as soon as practicable but in any event within 90 days of D’s appearance and within 120 days after complaint has been served on D.

3. Rule 16(c): Any conference may consider and take appropriate action on:a. Formulation and simplification of issues.b. Obtaining admissions of fact and documents (to avoid

unnecessary proof).c. Avoidance of unnecessary proof and of cumulative evidence.d. Appropriateness and timing of summary adjudication.e. Control and scheduling of discovery.f. Identification of witnesses and documents.g. Advisability of referring matters to a magistrate or master.h. Settlement. i. Form and substance of pretrial order.j. Disposition of pending motions.k. Need for special procedures.l. Order for separate trial.m. Presenting evidence that would be basis for judgment as a matter

of law.n. Reasonable limit on time allowed for presenting evidence.o. Other matters which may facilitate the goals of the rules.

4. Rule 16(d): Conference shall be held as close to trial as is reasonable. Formulate plan for trial and program for facilitating admission of evidence. Unrepresented parties and at least one attorney conducting trial must attend.

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5. Rule 16(e): After conference, court shall make order indicating the action taken.

6. Rule 16(f): If party or his attorney fails to appear, follow an order, or is substantially unprepared, etc., court may upon motion or its own initiative make whatever orders are just, including the orders specified in Rule 37 and expenses.

B. Early options to trial: ADR Act of 19981. Early neutral evaluation: Evaluators are typically volunteer lawyers or

magistrate judges.2. Nonbinding arbitration.3. Summary jury trial (usually < 8 jurors): Present abbreviated case and jury

returns nonbinding verdict.4. Consent decrees: Basically letting someone else do your homework.

C. Matsushita Elec. Industrial Co. v. Epstein (US 1996)1. Two class-action securities violation lawsuits against D were filed. One

settled in state court, which didn’t have SMJ (federal exclusivity). Does it have preclusive effect on the first one?

2. Must follow state’s preclusion rules. These indicate that there is no fundamental right to litigate a federal claim in a federal court. The first judgment does have preclusive effect.

D. Fiss: Against settlement: Settlement is bad because:1. Imbalance of power. But judgment aspires to an autonomy from those

inequalities.2. Settlements are not always voluntary; there are putative representatives,

contractual obligations. Rule 23 leaves approval to the judge.3. Judgment is not necessarily the end of the process; and settlement

generally impedes vigorous enforcement.4. The purpose of adjudication is to serve societal ends; it uses public

resources and uses public officials. When parties settle, society gets less than what appears.

E. Some studies suggest that trial is better for Ps v. corporate Ds than ADR.F. Resnik: Trial as error: Trial has become the exception; the “special docket

problem.”G. Confidentiality agreements

1. Kalinauskas v. Wong (DNV 1993)a. P sued D for sexual discrimination. Sough discovery from T, who

had a confidential settlement with D on a similar claim. b. Allowing full discovery into T’s settlement would discourage similar

settlements.c. But not doing so would allow buying witnesses off and her

deposition is likely to lead to relevant evidence.d. Deposition permitted. There is much in common with their cases

and P has attempted to acquire the information from other sources. But it cannot touch the substantive terms of her settlement.

2. Is litigation bilateral (between the parties) or a triangle (the public interest is a factor too)?

3. Gillers: With secrecy, society doesn’t find out what it’s paying for.4. Epstein: Abandoning secrecy will reduce the cost of filing lawsuits. Some

secret settlements are there for a good reason – e.g., trade secrets.

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Abandoning secrecy would discourage companies from creating new products, as liability would increase.

H. Arbitration1. Arbitration permits parties to shape the procedural and substantive laws

they want to follow in resolving their dispute. They may also choose their decisionmaker.

2. Six kinds: binding, non-binding, mandatory, voluntary, pre-dispute agreement, and post-dispute agreement to arbitrate.a. Professor dislikes binding, mandatory, pre-dispute arbitration.

The national preference for arbitration puts the Rules in danger.3. Federal Arbitration Act allows for enforcement of arbitration agreements

in federal courts. 9 USC: a. §2: Arbitration agreements are valid, irrevocable, and enforceable

as a matter of federal law, except for the reasons in law or equity for the revocation of any contract.

b. §3: If a party nonetheless starts a lawsuit, court shall on application of one of the parties stay the trial until arbitration completes, unless the applicant is in default in arbitration.

c. §4: If another party refuses to arbitrate and the underlying dispute would provide federal courts with jurisdiction, the party suffering a loss from it will have the ability to seek in a district court an order direction that arbitration proceed as provided in the agreement.

4. Historically, Supreme Court had an aversion to mandatory arbitration of statutory claims. In the1980s, however, court enforced arbitration agreements covering claims under securities-related acts and RICO (civil provisions). Court now accepts arbitration agreements. Sometimes arbitration agreements conflict with statutory scheme—e.g., if congress mandates a judicial forum to resolve disputes arising under the statute.

5. Floss v. Ryan’s Family Steak Houses, Inc. (6th Cir 2000)a. Ps applied for jobs at D’s restaurants but were rejected.

Arbitration clause in application. Did Ps waive rights to file suits under ADA, FLSA, etc.?

b. Third-party arbitrator with whom clause contracted Ps gave the arbitrator full discretion to change rules without Ps’ consent and to follow whatever rules it wanted.

c. For an agreement to be acceptable, there must be consideration.d. The arbitrator’s promise is illusory, and thus does not provide

consideration, because it can alter any rules and procedures without notification or consent. No waiver.

6. Lyster v. Ryan’s Family Steak Houses, Inc. (8th Cir 2001)a. Same situation but involving sexual harassment. After

termination, P filed complaint with EEOC and received right to sue letter.

b. Is it an unconscionable adhesion contract?i. Undue harshness in terms of contract?

a. Insufficient evidence here.c. It is an arbitrable claim. D is entitled to order compelling P to

arbitrate.7. “Third wave” in arbitration: Agreements still widely accepted but some

weariness about them. One court rejected an agreement because it was blatantly one-sided. Other courts have rejected agreements because the

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forum is not as hospitable to the claim as a court. One form of inhospitability is a limitation on remedies; another is requiring P to pay half of the fees when the government would normally pay all.

8. Andrews: Predictable costs in medicine – mandatory arbitration. Kaiser contracts upheld.

9. WSJ article: Some contracts contain jury waiver clauses if an arbitration clause is stricken. GA & CA have held these clauses can’t be enforced.

VII. Personal jurisdictionA. Personal jurisdiction: Court’s power to render a judgment binding on a resident of

another forum.B. Two primary themes:

1. Movement from rules to standards.2. Personal jurisdiction is like tofu – it picks up every jurisprudential flavor

and fad that surrounds it.C. Pennoyer and its progeny

1. Pennoyer v. Neff (US 1877)a. N hired M but failed to pay him. M was in Oregon but D did not

reside there. M obtained a default judgment against N in Oregon; N’s land there was seized. M purchased the land and promptly sold it to P. N then sued P for ejectment.

b. Due Process requires that P be personally served or make a voluntary appearance. But this isn’t the main point. The main point is power. States are sovereigns.

c. Personal jurisdiction can be acquired in two ways:i. In personam: Over the person.

a. Necessary when money judgment or injunctive relief sought. Sufficient for ownership issues.

b. Presence and service in forum state.1. Actual presence.2. Constructive presence.

c. Consent1. Actual (e.g., waive 12(b)(2) motion, show up

in court w/o a special appearance)2. Constructive (e.g., motorist driving through

state).ii. In rem: Over property. Must attach.

a. Available for deciding ownership of property when one cannot obtain in personam jurisdiction.

b. But may also be used for claims unrelated to property. (Quasi in rem.)

c. If non-residents have no property in the state, then it cannot exercise jurisdiction over them.

d. The court must attach property before the action.e. Two types:

1. Type 1: Dispute over property to determine who has better title.

2. Type 2: Acquiring jurisdiction over a non-resident.

f. Seizure of property1. Tangible2. Intangible (e.g., debts)

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g. Status (divorce).iii. Notice (feathered out by Mullane)

d. Limitations: i. Marriage and the like: State may authorize proceedings to

determine status of one of its citizens towards a non-resident, even if it is made without notice or process to non-resident.

ii. Corporations: State may require non-resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in that state to receive service of process and notice in legal proceedings, or a place where such service may be made, or a public officer designated for that purpose.

iii. Consent: Can consent to jurisdiction (by contract).e. Doctrine of collateral attack: D may in some cases attack in a

second proceeding a judgment rendered without jurisdiction. (No FF&C required for judgments made without jurisdiction.)

f. Four types of jurisdiction:i. Specific jurisdiction: Few contacts with the state that are

highly related to the subject of the lawsuit.ii. Specific and general jurisdiction: Many contacts with the

jurisdiction; highly related to the subject of the lawsuit.iii. General jurisdiction: Many contacts with the jurisdiction

that are unrelated to the lawsuit.iv. No jurisdiction: Few contacts with the jurisdiction; unrelated

to the lawsuit.2. Problems with the Pennoyer scheme:

a. Grace v. MacArthur (EDAR 1959): Served in plane flight.b. Hess v. Pawloski (US 1927): D (CA) got into accident in MA and

went back home. Statute dictated that implied consent to jurisdiction is given by driving on highways upheld.

c. Harris v. Balk (US 1905)i. D owed P (NC) money and P owed E (MD) money. D

traveled to MD from NC. E served D with process and MD court entered judgment saying that D should pay debt to E, not P. P challenged this order.

ii. Court upheld order. State can acquire jurisdiction over persons whenever debtors are present in that state by attaching the debts.

iii. Abandoned in Shaffer.3. So this was about power, consent, and notice. Later expansions:

a. Power: jurisdiction.b. Consent: designating agent, etc.

i. Host states can place conditions on foreign corporations.a. “Presence” has also been used: corporations have

to either consent or be present. Present when you conduct a certain level of activity there.

ii. Implied consent of individuals: use of state’s services, such as highways, amounts to consent.

c. Notice: Personal service of process.

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4. In many state systems and older cases, D could raise challenge to jurisdiction by making a “special appearance.”

D. International Shoe and Mullane1. Milliken v. Meyer (US 1940)

a. Domicile is sufficient to bring absent defendant within reach of state’s jurisdiction by means of substituted service.i. Is service reasonably calculated to give actual notice of

proceedings and opportunity to be heard?a. If yes, then traditional notions of fair play and

substantial justice are satisfied.ii. Is not dependent upon continuous presence in the state.

2. International Shoe Co. v. Washington (US 1945)a. D was incorporated in another state but provided door-to-door

selling with some customers in WA. D was not in compliance with WA’s unemployment tax laws. Notice was served on a salesman.

b. Whether due process has been satisfied depends upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to ensure.

c. Doing business (using its privileges) in a state may give rise to obligations.

d. D’s operations in WA establish sufficient contacts with WA to make it reasonable and just to permit state to enforce obligations D has incurred there.

e. Test is whether notions of fair play and substantial justice are satisfied. + Relational/contextual analysis.

f. Black (dissenting): If the corporation has anything to do with a state, then there’s jurisdiction. Doesn’t want discretion for judges.

g. General jurisdiction: Substantial contacts in state to make it fair to assert jurisdiction over claims unrelated to those contacts.

h. Specific jurisdiction: Contacts fall short of general jurisdiction so jurisdiction over only claims related to contacts.

3. Mullane v. Central Hanover Bank & Trust Co. (US 1950)a. In settlement of accounting with state, D notified all of the

beneficiaries via newspaper ad (in compliance with state statute). Appellant objected to notice procedures.

b. Mere gestures do not satisfy due process. Notice must be reasonable given the practicalities and peculiarities of the case, and reasonably calculated to apprise interested parties of the pendency of an action and afford them an opportunity to raise their objections.

c. The statutory notice here satisfies due process for the beneficiaries whose locations are not known but is insufficient for those whose locations are known because it is not reasonably calculated to reach those who could be easily informed by other means at hand.

d. The means employed must be such as one desirous of actually informing absentee might reasonably adopt to accomplish it.

e. Application of test:i. Known addresses: Attempt to mail it.ii. Unknown: Publication notice is okay.

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a. But do you have to make a reasonable effort to find out where they are? It depends on the circumstances of the case.

f. Mullane was later applied to in rem actions.E. The remnants of Pennoyer and the conflict over International Shoe

1. How much of Pennoyer survives? Pennnoyer is power-limiting and International Shoe & Mullane protect individual rights.

2. Shaffer v. Heitner (US 1977)a. P filed a derivative suit in OR against Ds, directors/executives of a

corporation, because Ds allegedly got the company into unnecessary liability. P moved to sequester Ds’ stock, in DE.

b. Ds’ jurisdictional objections rejected in DE courts because it was a quasi in rem proceeding and so contacts don’t matter.

c. Marshall: But the Pennoyer scheme is no longer valid. International Shoe should be read broadly and applies as the jurisdictional law.

d. Perhaps Ds are subject to DE’s substantive law, but because they have no contacts in that state, it is the inappropriate forum.

e. Brennan (dissenting): Have the Ds voluntarily associated themselves with the state? (Different approach to minimum contacts.)

f. Anti-Cybersquatting Consumer Protection Act: In rem jurisdiction where registrar of domain names is located.

g. Carolina Power & Light Co. v. Uranex (NDCA 1977): Garnishment proceeding in CA may continue even though there is arbitration in NY because it is not on the merits—it’s to secure the NY determination.

3. Burnham v. Superior Court (US 1990)a. P married W in WV, moved to NJ, and then separated. Agreed

that W would have custody of children; intended to move to CA. P would not accept the terms of the divorce he and W had previously agreed upon; W filed for divorce in CA. P made special appearance in CA after briefly seeing his kids in SF and being served.

b. P attempted to rely on Shaffer. Scalia argued that Shaffer meant that quasi in rem jurisdiction was really in personam jurisdiction.

c. Jurisdiction based on physical presence alone constitutes due process because it is a tradition in the system that continues to define “traditional notions of fair play and substantial justice.”

d. Pennoyer still lives; the other cases should be interpreted narrowly.

e. Brennan (concurring): Tradition is not dispositive. By being physically present, D avails himself of benefits of state. Need to be in state for substantial amount of time. Apply International Shoe / due process factors – here, D availed himself of benefits by being there 3 days.

f. Rowe thinks B, not S, is correct.g. Note: Neither opinion is controlling; only 4 votes for each opinion +

Stevens opinion.

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h. Later cases held that although a casual individual visitor may be subject to general jurisdiction, Burnham does not apply to corporations.

F. Forum selection clauses1. Carnival Cruise Lines v. Shute (US 1991)

a. P injured on D’s ship. Forum-selection clause on ticket contract required P to go to FL.

b. Blackmun: Clause upheld. P benefits from the clause by reduced ticket prices. i. The Bremen (US 1972): Forum selection clauses are prima

facie valid. (Freely negotiated forum clause upheld.)c. Cruise line has special interest in limiting fora in which it has to

litigate a claim.d. No evidence that this clause was included with bad-faith motive

(of discouraging litigation).e. Stevens (dissenting): Clauses like this are typically product of

disparate bargaining power.G. Specific jurisdiction after International Shoe

1. Three general requirements:a. Relatedness: Transaction in question must have some relation to

the forum.b. Purposeful availment: D made gesture toward state. Dispute as to

whether this means intent or knowledge.c. Fair play and substantial justice factors: Is it part of the minimum

contacts analysis, a separate test (Asahi), or a sliding scale (Burger King)?

2. McGee v. International Life Insurance Co. (US 1957)a. P (C) had a mail-order life-insurance policy with D (TX). He

renewed it every year in response to letter sent by D. P was only customer in CA. Where can they litigate over suicide clause?

b. Black: Trend of expanding permissible scope of state jurisdiction over foreign corporations and other nonresidents.

c. Seems to rely on fact that D took affirmative action toward CA. Also, P would be seriously disadvantaged if D doesn’t fall within CA jurisdiction. Jurisdiction established.

3. Hanson v. Denckla (US 1958)a. Dispute over estate of Mrs. D. Established trust in DE and later

moved to and died in FL. Can FL acquire jurisdiction over DE trustee?

b. Warren: No. Trustee never committed any acts in FL, trust co. never had an office in FL, etc. P’s unilateral actions aren’t enough.

4. Keeton v. Hustler (NH 1984)a. D (OH corp.) sold magazines in all states but only a few in NH. P

(NY) allegedly libeled in magazine. (Statute of limitations had run in all states but NH.)

b. NH has jurisdiction because D sells magazines in NH.5. World-Wide Volkswagen Corp. v. Woodson (US 1980)

a. Ps (NY), as they were driving through OK, another car struck them, causing a fire severely burning P1 and her children.

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b. Sued local dealer (NY), manufacturer (Germany), national distributor (NY), and regional distributor (incorporated in NY & distributes parts to NY, CT, and NJ).

c. Ds challenged in personam jurisdiction, which was denied.d. White: Manufacturer and national distributor knew they sold cars

in OK. Jurisdiction there.e. But not for the regional distributor or local dealer. Ds do nothing in

OK. And foreseeability of use in OK can’t be a criterion—too overreaching. No contacts, ties, or relations with OK; no purposeful availment, etc. So no jurisdiction here.

f. Brennan (dissenting): Ds knew that an automobile is not a stationary object. Convenience to P and location of evidence (both OK) are key.

6. Asahi Metal Industry Co. v. Superior Court (US 1987)a. D was injured in motorcycle crash; filed products liability suit. D1

(Japan) sold parts to D2 (Taiwan); D2 knew his products were sold to CA, but D1 claims he didn’t know that.

b. Reasonableness factors:i. Burden on Dii. Interests of forum stateiii. P’s interest in obtaining reliefiv. Interstate judicial system’s interest in obtaining most

efficient resolution of controversiesv. Shared interests of several states in furthering

fundamental substantive social policies. c. This would seriously burden D and P isn’t even a resident of CA

so CA doesn’t have much of an interest in the action. Thus, no jurisdiction here.

d. O’Connor: Due process requires that D purposefully direct himself at forum state. (4 justices)

e. Brennan: Due process only requires that D knows he’s directing himself at a forum state (i.e., injecting goods into stream of commerce). (4 justices)

f. Circuit split as to which test to adopt.7. Burger King Corp. v. Rudzewicz (US 1985)

a. D (MI) opened up BK in MI. P’s HQs in FL but regional office in MI also dealt with D; D went to FL for manager training. P terminated D after violation of agreement. Proceed in FL?

b. Brennan: Yes. D knew he was affiliating with an enterprise based in FL, negotiated with people in FL, and franchise agreement provided that all disputes would be in FL and resolved under FL law. D availed himself of benefits and protections of FL laws, so FL courts have personal jurisdiction.

c. Concerns about making Ds in small purchases/claims get hauled into another state are not present here.

d. So this is a sliding scale: Lots of contacts, fair play is less important. Not a lot of contacts, fair play is much more important.

e. Stevens (dissenting): Principal contacts were with MI office and P chose the forum. It’s just unfair.

f. Diamond HealthCare of Ohio, Inc. v. Humility of Mary Health Partners (4th Cir 2000): P (VA) contracted with D (OH),

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approaching D in OH; most services were to be performed in OH and law governed contract. All paperwork passed through VA. P sued for breach of contract. VA doesn’t have jurisdiction.

8. Pavlovich v. Superior Court (CA 2002)a. D (TX) lived in IN during college and founded website there that

linked to other websites—conducted no business—that posted code cracking DVDs. No relations whatsoever to CA. Sued in CA by code owner for posting trade secrets.

b. Effects test for defamation/libel: Can sue for defamation based on effects of defamation in forum state (D knows effects of defamation will be felt in that state).i. Here, the connection is too tenuous. Holding that there is

jurisdiction would create overreaching liability. D didn’t know P was a CA corporation until he was sued.

c. Sliding scale analysis for internet: At one end are sites which clearly conduct business over internet, at the other are sites where D has just posted information on a passive website. In middle are sites which have interactive information (exchange information with host computer). Whether to exercise jurisdiction in those cases depends on level of interactivity and nature of exchange of information that occurs on site.i. No interaction here.

H. General jurisdiction1. Individuals: Domicile. Corporations: Incorporation/principal place of

business.2. LLBean/MMBean hypo:

a. L thinks M is infringing on its copyright. M files suit in CA seeking declaratory judgment. Jurisdiction over L?

b. Suppose L has 6% of its sales online in CA. c. Many courts have ruled, yes, this is enough for general

jurisdiction. (No evidence of contacts related to the lawsuit.)d. “Usually something more is required – like massive manufacturing

plants, or company headquarters, or incorporation in the state, or something else showing a substantial "presence." 6% of US sales and a few mouse clicks coming from California, I suggested, is a bit short for general jurisdiciton, although as I said, some courts have (unfortunately) gone this way.”

3. Coastal Video Communications Corp. v. The Staywell Corp. (EDVA 1999)a. In copyright infringement declaratory suit, P (VA corp.) and D (DE

corp. with PPOB CA). D sells some of the disputed products in VA and over the internet.

b. D has established online storefront that is available to every VA resident. Most reliable indicator of nature and extent of D’s contacts is amount of sales generated. P directed to seek discovery.

4. Gator.com Corp. v. L.L. Bean, Inc. (9th Cir 2003)a. Interactive website, soliciting of business in CA, etc. establish

consistent and substantial pattern of business relations.i. Is it random, fortuitous, or attenuated? No.

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ii. Sliding scale test: Party must do business over internet and the internet business contacts with forum state must be substantial or continuous and systematic.a. Must approximate physical presence.

iii. Limited by reasonableness.b. CA can assert jurisdiction here.

I. Service of process1. Rule 4

a. Rule 4(a): Requirements for summons. Court may allow all summons to be amended.

b. Rule 4(c): Service may be effected by any person who is not a party and who is at least 18 years old. P may request that US marshal do it.

c. Rule 4(d): D who waives service does not thereby waive and objection to venue or jurisdiction of court. D who before being served with process returns a timely waiver (within at least 30 days or 60 if D addressed outside US) shall not be required to serve answer until 60 days after date on which request for waiver was sent or 90 says if D is addressed outside US.

d. Rule 4(k): Service of summons or filing of waiver is effective to establish jurisdiction over person of D:i. Who could be subjected to general jurisdiction there;ii. Who is party joined under Rule 14 or 19 and is served at

place within US and not more than 100 miles from place from which summons issues;

iii. Who is subject to federal interpleader jurisdiction under § 1335; or

iv. When authorized by statute of US.v. If exercise of jurisdiction is consistent with constitution and

US laws, it is also effective to establish personal jurisdiction of any D who is not subject to jurisdiction of courts of general jurisdiction of any state, in claims arising under federal law.

e. Rule 4(m): Service of summons and complaint must be made within 120 days of filing complaint, or court may dismiss action without prejudice on its own initiative or by motion. If P shows good cause for failure, court may extend period.

2. Rule 5: Rules for serving papers on a party.J. Long-arm statutes

1. CA’s long-arm statute: Jurisdiction may be exercised on any basis not inconsistent with CA or US constitution.

2. Other statutes are more restrictive, like NY and FL’s: base it on specific behaviors, like tortfeasors.

VIII. Subject matter jurisdictionA. Subject matter jurisdiction: Power of a court to hear a certain kind of case.B. The Constitution establishes the outer limits of SMJ; for a court to have SMJ,

there must be a Constitutional and statutory grant.C. Article III, section 1: Congress need not establish lower courts; Supreme Court is

only “mandatory” court.D. Article III, section 2: Judicial power shall extend to:

1. All cases arising under federal laws, Constitution, or treaties;

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2. All cases affecting ambassadors and other public ministers/consuls;3. All cases of admiralty and maritime jurisdiction;4. Controversies to which US shall be a party;5. Controversies between two or more states;6. Between a state and citizens of another state;7. Between Citizens of the same state claming lands under grants of a

different state;8. Between a state or citizens thereof and foreign states, citizens or

subjects.E. Challenging SMJ

1. 12(b)(1) v. 12(b)(6) to challenge case that may not arise under federal law: If there is an arguable basis for federal jurisdiction, consider it as a 12(b)(6).

2. Generally, if a party fails to challenge jurisdiction in one suit, it cannot later be attacked in another. But there is an exception: Kalb v. Feuerstein (US 1940): In bankruptcy case, when state court has no jurisdiction, no preclusive effect on federal courts; may make the collateral attack.

3. If SMJ and personal jurisdiction are challenged, court does not have to decide on basis of SMJ because it will have narrowest effect. Trial courts have discretion in handling their dockets. (Ruhrgas AG v. Marathon Oil Co. (US 1999)).

F. Federal question jurisdiction1. Osborn v. Bank of the US (US 1824): Even the slightest federal ingredient

satisfies Article III.2. § 1331: Original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the US.3. Louisville & Nashville Railroad v. Mottley (US 1908)

a. Ps were given a lifetime pass on D’s railroad; congress later made lifetime passes illegal. Ps sought specific performance of their contract.

b. Arising under: when P’s statement of his own cause of action is based upon federal law, not some anticipated defense to his action.

c. Well-pleaded complaint rule: Federal claim must appear as part of P’s original statement of his cause of action. Cannot consider anything unnecessary to the claim.

d. No jurisdiction here (no diversity either).e. Plain text of rule/congressional intent v. administrative concerns.

4. Skelly Oil Co. v. Phillips Petroleum Co. (US 1950): Declaratory judgment by a potential D in another lawsuit against the P in a matter of purely state law does not establish arising under jurisdiction.

5. Ideological question: How available should federal courts be to people?a. Neuborne: Federal judges are smarter, less subject to political

pressure/have the ivory tower syndrome, more likely to listen to the Supreme Court, etc. … So it’s better to have federal claims heard in federal court.

b. Rubenstein: Actually, more recently, state courts have been more receptive to gay rights claims. They see them in family court. But perhaps this isn’t incompatible with Neuborne – gay issues are “group equality claims,” which state courts seem more receptive to, but Neuborne was talking about civil liberties claims.

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G. Diversity jurisdiction1. § 1332: Original jurisdiction of all civil suits where matter in controversy

exceeds $75,000, exclusive of interests and costs, between:a. Citizens of different states;b. Citizens of a state and citizens/subjects of a foreign state;c. Citizens of different states and in which citizens or subjects of a

foreign state are additional parties;d. Foreign state, as plaintiff and citizens of a state or different states.e. Alien admitted to US for permanent residence is citizen of state in

which he is domiciled.f. If it is finally determined that P is entitled to less than the required

amount, court may deny him costs and/or impose costs on him.g. For purposes of this section and § 1441, corporation is citizen of

state in which it is incorporated and state of its principal place of business.i. Courts have looked at a corporation’s “nerve” center where

executives and administrative functions are controlled; they have also looked at the “muscle,” where the everyday business functions are performed. Some courts look at both. Generally if they’re in different places, go with the “nerve center.”

h. Legal representative of estate of decedent shall be deemed to be a citizen only of the same state as the decedent.

2. Strawbridge v. Curtiss (US 1806): Complete diversity required by § 1332.3. National Mut. Ins. Co. v. Tidewater Transfer Co. (US 1949): Citizens of

DC are citizens of a state.4. Redner v. Sanders (SDNY 2000)

a. P is citizen of US residing in France. Ds are residents of NY. P claimed that he had jurisdiction under citizens of state and citizens of foreign state.

b. No jurisdiction as P originally stated. P attempted to respond by saying that he had connections with CA. But he’s not domiciled there. Dismissed for lack of SMJ.

c. Diversity is determined by when the action commences, even if the P moves to another state.

5. § 1359: No jurisdiction when parties have collusively or improperly joined parties to get diversity jurisdiction.

6. Saadeh v. Farouki (DC Cir 1997)a. P (alien/Greece) sued D (MD resident/citizen of Jordan) over a

loan. While suit was going on, D became citizen of US.b. No SMJ here. The 1988 amendment (resident alien = citizen of

state where he resides) was intended to contract diversity jurisdiction. Read literally, it would expand it here. There is no citizen of one state in this suit; it’s alien v. alien.

c. Note: The 3rd Circuit has disagreed about the policy of the 1988 amendment.

7. Hawkins v. Masters Farms, Inc. (DKS 2003)a. There is no diversity jurisdiction when decedent sues D (KS).

Decedent was a citizen of MO, and went back there occasionally, but lived in KS with his girlfriend, then wife and kids, and there were no signaled plans to move back to MO.

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b. Test: Domicile: Intent to remain and physical presence. Miss. Band of Choctaw Indians v. Holyfield (US 1989)

8. The argument against diversity:a. Large part of federal courts’ caseload. Useless unless it serves a

vital function.b. But it doesn’t serve a vital function. There is no prejudice in state

courts anymore.9. Amount in controversy

a. To reject it, it must be proven to a legal certainty that claim is really less than for jurisdictional amount to justify dismissal. St. Paul Mercury Indemnity Co. v. Red Cab Co. (US 1938).

b. Generally can’t rely on punitive damages to bring you up when you have very low actual damages (e.g., a small cut on your forehead). Salmi v. D.T. Management, Inc. (NDIL 2002).

c. Injunctions: At least 4 approaches:i. Value to Pii. Cost to D of complyingiii. Cost or value to party invoking federal jurisdictioniv. Or any of the above if it yields jurisdictional amount.

d. Aggregationi. If P has 2 or more unrelated claims against single D, can

aggregate.ii. If 2 Ps each have claims against a single D, may not

aggregate if claims are considered “separate and distinct.”a. E.g., joint owners of property.

iii. If 2 Ps are suing one D and only one has claim that meets statutory limit, then only the one P can sue in federal court (and second one may seek supplemental jurisdiction).

iv. If there are multiple Ps and/or Ds, and they have a common undivided interest and single title or right, then the value of the total interest will be used.

v. Class actionsa. At least some members must be able to satisfy

amount.b. Zahn v. International Paper. Co. (US 1973): Each

class member must satisfy jurisdictional amount.c. But more recent courts have held that only the

representatives have to satisfy it.e. Permissive counterclaims, but not compulsory ones, must satisfy

the jurisdictional amount. Unclear what happens when counterclaim is >75K but P’s claim isn’t.

10. Exception to diversity: Family law matters/domestic relations. Akenbrandt v. Richards (US 1992)a. § 1738A: Criteria for interstate FF&C/modification of child custody

determinations when there is diversity.11. Class actions: Supreme Tribe of Ben Hur v. Cauble (US 1922): Only

consider citizenship of named parties for diversity.H. § 1257: Interpreted broadly: Final decisions by the court of last resort in a state

are reviewable in the USSC if there is a federal question involved.I. Interpleader: § 1335

1. Original jurisdiction in interpleader (or cases of that nature) if:

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a. It is filed by someone who possesses more than $500 worth of something in dispute, and

b. Two or more adverse claimants of diverse citizenship are claiming or may claim to be entitled to that property, or to any benefits arising from it, and

c. P has deposited the money/property with the court.J. Removal jurisdiction

1. § 1441a. 1441(a): Any action which could have been filed in federal court

but was filed in state court can be removed by the D (or all Ds, if there are multiple Ds – cannot disagree) to the district court division where the action is pending.

b. 1441(b): Suits with 1331 jurisdiction shall be removable without regard to citizenship of the parties, but all other suits shall be removable only if none of the Ds is a citizen of the state in which action is brought.

c. 1441(c): 1331 cases which are joined with separate, independent, and non-removable claims: Whole action may be removable and district court may determine all issues therein or in its discretion may remand all matters in which state law predominates.

d. 1441(d): Bench trial in actions a foreign state D removes to federal court.

e. 1441(e): Special rules.f. 1441(f): Federal court under removal jurisdiction may hear claims

even if state court didn’t have jurisdiction over them.2. § 1446

a. 1446(a): D(s) who want to remove shall file notice of removal, signed pursuant to 11, containing a short and plain statement of the grounds for removal, along with all process, pleadings, and orders served upon D(s).

b. 1446(b): Notice of removal shall be filed within 30 days after D’s receipt of copy of initial pleading setting forth claim for relief upon which the action is based, or within 30 days after service of summons, whichever period is shorter, or amended pleading that makes a non-removable case removable (except there’s a one-year limit for cases that would be under 1332 jurisdiction).

3. § 1447a. 1447(c): Motion to remand the case based on any defect other

than lack of SMJ must be made within 30 days after filing of removal notice. Remand order may require payment of just costs and actual expenses incurred as a result of the removal.

b. 1447(d): Remand order is not reviewable (on appeal or otherwise) unless case was removed under 1443.i. § 1443: Removal for defendant (wronged) in cases

implicating civil rights (including criminal prosecutions).4. Trying to tinker with the jurisdictional amount in controversy before

judgment is entered won’t work. Rogers v. Wal-Mart Stores, Inc. (6th Cir 2000).

K. Supplemental jurisdiction1. § 1367

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a. 1367(a): Except as provided in (b) and (c), there is supplemental jurisdiction over claims that are so related that they are part of same case or controversy under Article III over which there is original federal jurisdiction. Includes claims involving joinder or intervention of additional parties.i. Note: This overrules Finley (US 1989), in which Scalia

ruled that pendent party jurisdiction is unacceptable.b. 1367(b): When it would be inconsistent with 1332 requirements,

no supplemental jurisdiction over claims by P against people joined under Rules 14, 19, 20, and 24, or by persons proposed to be joined as Ps under 19, or seeking to intervene as Ps under 24.

c. 1367(c): May decline to exercise supplemental jurisdiction if:i. Claim raises novel or complex state law issue.ii. Claim substantially predominates over claim(s) over which

there is original federal jurisdiction.iii. District court has dismissed all claims over which it has

original jurisdiction, oriv. There are other compelling reasons in exceptional

circumstances.v. Note: This codifies Gibbs’ discretionary factors, below.

Some debate as to whether it’s discretionary anymore.d. 1367(d): After a pendent state law claim brought under (a) is

dismissed in federal court, it can be refiled within 30 days in state court, even if a state statute of limitations has expired, unless a state statute provides for a longer period.

2. United Mine Workers v. Gibbs (US 1966)a. P filed S conspiracy claim and F FLRA violation claim.b. Brennan: S and F claims must derive from common nucleus of

operative facts. That is, they are co closely related that they are part of the same case or controversy under Article III.

c. This case is eligible for federal jurisdiction, but it’s within a district court judge’s discretion to determine whether it will be heard there.

d. Factors:i. Judicial economyii. Fairness to litigantsiii. If federal claims are dismissed before trial, then state ones

should be as welliv. If state issues substantially predominatev. Jury confusion in treating divergent theories of legal relief

3. Three kinds of supplemental jurisdiction:a. Pendent

i. P brings F claim against D and seeks to bring S claims against him as well.

b. Ancillaryi. Claims arising out of same transaction, over which there is

no independent basis for F jurisdiction, that are brought after initial complaint is filed.a. Judicial economy/FRCP goal of resolving

everything at once v. limited federal jurisdictionii. Examples

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a. P brings F claim against D and D (compulsory) counterclaims with an S claim.

b. P brings 1332 claim against D1; D1 impleads nondiverse TPD under 14. Proper only if there is ancillary jurisdiction.

c. P brings 1331 claim against D1; D1 impleads TPD (same state as P); P makes claim against TPD. Proper only if ancillary jurisdiction.

c. Pendent partyi. Adding a jurisdictionally insufficient claim against one D to

a jurisdictionally proper claim against another D.ii. Examples

a. P brings F claim against D1 and seeks to bring S claim against D2.

4. Problems with § 1367 as drafted v. as intendeda. 1367(b):

i. P1 (CA) files 1332 claim and joins under 20 P2 (CA) with $20k claim against same D (NY). Obviously not allowed (no aggregation), but language of 1367(b) would permit it, since no claim is being brought against someone joined.

ii. Class actions: Zahn does not permit aggregation, but 1367 does not mention class actions. So read literally 1367 seems to overrule Zahn. Circuit split on this; TBD by Supreme Court this term.

5. Decision tree:a. Are any claims subject to F jurisdiction?

i. No: Go to S court.ii. All: Go to F court. 1367 not needed.iii. Some, but not all: Go to step 2.

b. Is original basis of lawsuit 1332?i. No: Go to step 3.ii. Yes: 1367(b) applies.

a. Is it the P who seeks supplemental jurisdiction?1. No: Go to step 3.2. Yes: Continue to the next subpart.

b. Joinder is then problematic and presumptively unavailable.1. If P seeks to pursue claims that do not

independently meet F jurisdiction requirements, then supplemental jurisdiction is NOT available.

2. If persons joined as Ps under 19 or 24 seek to pursue claims that do not have an independent jurisdictional basis, then supplemental jurisdiction is NOT available.

c. Are all claims part of a single case or controversy under Article III?i. No: No supplemental jurisdiction.ii. Yes: Court must analyze 1367(c) factors to determine

whether supplemental jurisdiction should apply.L. § 1333: Original, exclusive jurisdiction in admiralty cases or cases involving

prizes brought into US or their condemnation.

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M. Erie problem1. Federal law

a. Rules of Decision Act: § 1652: Laws of several states are rules of decision in civil suits in the district courts when they apply, except as provided or required by Constitution, treaties, or acts of Congress.

b. Swift v. Tyson (US 1841): There is a federal common law. (“Good old Swifty”)

c. Erie Railroad v. Tompkins (US 1938)i. Swift hasn’t quite yielded the benefits expected from it.

a. Discrimination by non-citizens against citizens.ii. Unless the matter is governed by the constitution or by

acts of Congress, state law controls. There is no federal general common law.

d. Klaxon Co. v. Stentor Elec. Mfg. Co. (US 1941): Apply conflicts of law principles of forum state in diversity cases.

e. Federal common law which persists:i. Admiralty/maritime law.ii. Statutory matters—filling in gaps—e.g., antitrust.

a. Textile Workers Union of America v. Lincoln Mills (US 1957): Federal common law authorized under Taft-Hartley Act.

f. Just like International Shoe and the Rules, Erie is about equality. Erie clears the path for Brown because it clears federal dockets and indirectly encourages federal courts to focus on civil rights.

2. Four views:a. Frankfurter: Outcome-determinative test.b. Brennan in Byrd v. Blue Ridge: Balancing test.c. Henry Hart & Harlan: Affecting primary private conduct. Rejected

in Hanna.d. Hanna: See chart. Anything vaguely procedural is a matter of

federal law.3. Procedures

a. Hanna v. Plumer (US 1965)i. In diversity suit, P served according to federal rules rather

than state rules.ii. This is a Rules Enabling Act question. Rule 4(d)(1) passes

muster under that.iii. Erie is not a check on the federal rules. Otherwise it would

disembowel the constitution’s grant of power over federal procedure or congress’ attempt to exercise that power in the enabling act. See flowchart below for the rest of it.

4. Flowcharta. First question: Is it pertinent? If no valid, relevant federal law,

Rules of Decision Act commands that state law be applied.b. Second question: If so, is it valid?c. Source of procedural law:

i. Constitutiona. Always valid. Trumps any contrary state law. State

law is irrelevant. b. Result: Apply Constitution.

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ii. Act of Congressa. Valid if Constitutional.

1. Determined by “Arguably procedural” test.a. If it could be classified as either

substantive or procedural, then it meets this test.

b. Valid federal law preempts state law. State law is irrelevant.

c. Result: Apply valid statute. If invalid, Rules of Decision Act states to apply state law.

iii. Federal Rule promulgated pursuant to the Rules Enabling Acta. Valid if:

1. Constitutional and2. Meets requirements of Rules Enabling Act

a. Rule of practice and procedureb. Does not abridge, enlarge, or modify

any substantive rightb. Valid federal rule preempts contrary state law.c. State law may be relevant in determining whether

the federal rule has modified a substantive right.d. Result: Apply federal rule, if valid. Rules of

Decision Act states that state law applies if the rule is invalid.

iv. Federal common law practice or policya. Valid if:

1. Constitutional,2. Consistent with federal law,3. And satisfies Hanna’s twin aims test:

a. Discouragement of forum-shoppingb. Avoidance of inequitable

administration of the lawsb. Valid federal practice preempts contrary state law.c. But state law may be relevant in determining

federal practice will give rise to twin evils (Erie designed to eliminate).

d. Result: Apply valid federal policy. If invalid, apply state law (RDA).

IX. Complex litigation: Joinder of claimsA. Rule 18(a): A party asserting a claim may join (either as independent or alternate

claims) as many claims, legal, equitable, or maritime, as the party has against an opposing party.

B. Note: This requires that the party has a proper, related claim asserted against that person. You can’t just randomly join unrelated claims; you can only do that after you have a good claim.

C. Rule 13 revisited: Very permissive.D. § 1367 revisited: Considers three variables:

1. Basis of original jurisdiction over case2. Identity of party seeking to invoke supplemental jurisdiction.3. Rule authorizing joinder of the party or claim over whom supplemental

jurisdiction is sought.

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E. Plant v. Blazer Financial Services (5th Cir 1979)1. P defaulted on a promissory note to D, but filed a Truth in Lending Act

suit and prevailed on that. Is the claim about the underlying debt a compulsory counterclaim?

2. Tests re/whether claims arise from same transaction for Rule 13:a. Issues of fact and law raised by claim and counterclaim largely the

same?b. Would res judicata bar the subsequent suit on the D’s

counterclaim absent the compulsory counterclaim rule?c. Will substantially the same evidence support or refute P’s claim as

well as D’s counterclaim?d. Logical relation between claim and counterclaim? (5th Cir test)

i. Loose standard which tries to avoid multiplicity of suits.ii. Arises from same aggregate of operative facts.

3. But allowing the counterclaim to be joined here would undermine the TILA enforcement scheme because they often exceed the value of the TILA claim.

4. But congress didn’t insulate TILA claims from such counterclaims in federal court. They’re obviously interrelated, so it’s compulsory.

5. Professor: Factors aren’t very helpful because they restate the issue. The outcome of this case is contingent upon one’s view of litigation—bilateral or public.a. What is the purpose of including attorney fees in TILA claims?

Deter/punish Ds? Encourage potential Ps to be private attorneys general?

F. Rule 421. Rule 42(a): When actions involving a common question of law or fact are

pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

2. Rule 42(b): In furtherance of convenience or to avoid prejudice, or when so doing would be conducive to expedition and economy, the court may order a separate trial of any claim (cross-claim, etc.).

G. Class actions1. Three types of litigation: individual; committee; class.

X. VenueA. A brief note on venue: § 1391(a): Venue in a diversity suit is:

1. Wherever any D resides if all Ds live in same state;2. Where substantial part of events/omissions giving rise to claim occurred,

or substantial part of property that is subject of the action is situated; or3. Where any D is subject to personal jurisdiction at the time the action is

commenced, if there is no district in which action may be otherwise brought.

XI. AppealsA. Three levels of scrutiny:

1. Questions of law: De novo: As if lower court never made the ruling.2. Questions of fact: Clear error: When the judge did not make a rational

inference.a. Very deferential; very difficult to get a ruling overturned.b. Mixed questions: Somewhere in between.

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3. Matters of discretion (e.g., application of law): Abuse of discretion: Very murky. Judge bases decision on factors he’s not allowed to consider.

4. See §§ 1291-5.

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