Kim Civpro Tyrrell Sprg05

7/24/2019 Kim Civpro Tyrrell Sprg05

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Civil Procedure

Exam Outline

PERSONAL JURISDICTION

Defo: can this court exercise power over this particular person.

Analytical Approach:- does a statute allow it?- If yes, does the constitution allow it?

STATUTE

I. Long Arm statute: first uestion !efore this constitutional due process uestion.A. every state has a series of in personam statutes. "very state has:

1. a statute that mirror the traditional !asis2. statute that is !ased on implied consent #non resident state motor statute$.

3. long arm statute, % types:a. full extent of the constitution !. laundry list long arm: gives list of things the defendant can do in the

forum #defendant in the forum enters into a contract, insures a ris&,commits a tort$ issues: 'tate A ship a product into state (. It !lows up in state (.

)ant to sue me in 'tate (. Long arm has *urisdiction oversomeone commit a tort in state (. Did I commit a tort in state(? Argue !oth ways.o I was negligent in state A

o +r say plaintiff was in*ured in state (, was a tort in state (

DUE PROCESS: outer limits of *urisdictional reachI. Oriin! " Pennoyer

A. Pennoyer: /s. 'tresses raw physical power over people and property thatare inside its !oundaries. 0ives us the traditional !asis for in personam *urisdiction:

. Defendant is served with process while in the forum 1 i.e. transient%. Defendant agent was served in the forum2. Defendant is domiciled in the forum3. Defendant consents to *urisdiction

a. Problem with Pennoyer: As society !ecame more mo!ile this was

hard. 4ould run into state, commit tort and leave uic&ly. '.4.wanted to expand and push 3 traditional !asis

(. In rem: 'ource of power is property within the state. (ring them into court !yattaching the property to the litigation. 5otice is attachment !efore litigation. we assume fol&s &eep an eye on property, constructive notice fine.%. Absorption of quasi-in rem: no longer is it accepta!le to simply attach

property, that property must !e somehow related to the litigation and nowfalls under mc test, Schaffer. (67



a. 'tate continue power over true in rem cases #as opposed to uasi inrem$ in things li&e condemnation proceedings

!. 8resence of property can support minimum contacts.4. 4ompromise: distinction is a compromise !etween state sovereignty #in rem$

and individual rights #in personam$.

II. #odern $ormulation 1A. Implied *urisdiction: Hess expands notion of consent to include implied consent

from a non resident motorist statute. 'tretch of 8ennoyer.(. 94 consistent with 8';: 4ourt no longer stretches the traditional !asis and in

Intl Shoe creates this new test.. Te!t: such 94 with forum that exercise of *urisdiction does not intervene

with traditional notions of 8';. #amorphous phrase that is real flexi!le 1away from rigid 8ennoyer guidelines.

a. Loo& at uality and nature of contacts 'ystemic and continuous

<olume of contacts relatedness

%. 5o where does shoe say that is overrules 8ennoyer, in fact when itgives us that language, it says here is the test if the defendant is not inthe forum. 8resence still o&ay !asis.

%. 86=8+'"6L A<AIL9"57 #mc$: focuses solely on the activities of thedefendant. >>unilateral act of plaintiff in !ring product to state not going towor& #!ol"swa#on$ hanson$

a. Did de&endant !ee' to %ene&it &rom relation!(i) *+ &orum !tate,

%c&ee: one contact enough if defendant reached out to the

forum state. #insurance contract from 7 to resident of 4A$

Hanson: Defendant must reach out to the forum, here !ecausethe 8 !rought product to L when she moved did not mean thatthe D" corporation reached out to the state. #introduces purposeful availment$

%. Entered into lon term relation!(i) *it( t(e !tate,

'ur#er "in#: 9I guys franchise with L corp. L *urisdiction

!ecause he reached out and received !enefits from this nationalorgani@ation

c. Servin or !ee'in to !erve t(e &orum mar'et,

d. Deliverin )roduct! into !tream o& commerce *it( ex)ectation

t(at t(e- *ill %e )urc(a!ed in &orum !tate,

(ourt )i!i)e: discuss !oth Asahio(rennan: contact if you put product in stream and

reasona!ly anticipate it will get to state 4,D, ".o+4onnor: need (rennan plus the intent or purpose to serve

4,D, and ". 1 that means need advertising there,,customer service there, ,etcB

(67 stream of commerce ends with retail sale, even if

foreseea!le produce will !e !rought to another state.



e. $ore!eea%ilit-,

*ol"swa#on: oreseea!ility uestion: relevant !ut it is not a

uestion of whether it is foreseea!le that the car gets there,uestion is: is it foreseea!le that these defendants could getsued in +C.

2. ="A'+5A(L"5"'' #8';$ 1 none !etter one to argue. 'ur#er +in# firstcase to do divided into two part test. (urden on defendant gravelyinconvenient that D is a severe disadvantageE high !urden to meet.

a. interest of state in providing forum to plaintiff %. interest of state in regulating activity involved

interstate *udicial system interest in most efficient resolution

shared interest of furthering pu!lic policy

plaintiff interest in o!taining convenient relief

c. !urden on defendant to defend in forum courts particularly cautious around foreign defendants.

really hard !urden to overcome, court unli&ely to grant this#loo& at (urger Cing$

d. relative !urden on plaintiff to prosecute elsewhere 1 only if plaintiffcant travel to in*ury or something serious.

e. defendants activity systematic and continuous?&. extent to which claim is related to local activities 1

!it of this ma&es up for lac& of minimum contact

. avoidance of multiple suits and conflicting ad*udicationIII.eneral Juri!diction

A. 8urpose: to provide a safe har!or where plaintiff can always sue the defendant(. =euirements: must !e su!stantial contacts, suit need not !e related with in

state activities.. or an individual 1 state of domicile is where you are held lia!le%. or corporation 1 state of incorporation and principle place of !usiness

4. >>> remem!er to analy@e for this when no specific *urisdiction. Alsoremem!er that under (urnham, transient *urisdiction gave general *urisdictionfor some *ustices.

I/. Tran!ient Juri!diction

A. 'urhnam: Divorce case in 4A. 4ourts split so argue !oth.. 'calia: service in state does give general *urisdiction !ecause of its

historical pedigree. It has always !een good, so no minimum contact !ecause traditional !asis lives !y itself. #not such a goofy argument !ecause

minimum contacts test laid out in Intl shoe said only for when def not present$

%. (rennan: must assess under international shoe./. So0 Court (a! Juri!diction i&:

A. 'ufficient minimum contacts and *urisdiction is reasona!le, or (. 8roperty has !een sei@ed in forum and appropriate relationship !etween forum

and claimF or 4. 4ontacts so su!stantial that there is general *urisdictionF or



D. Defendant was personally served in *urisdiction #transient *uris$F or ". Defendant contest to forums exercise of *urisdiction

/I. NOTICE " $RCP 12 !ummon! and com)laint

A. Due process reuires that reasona!le efforts are made to provide notice and

opportunity to !e heard. 'erve notice to actually esta!lish *urisdiction.(. =ule: 5otice must !e reasona!ly calculated under all the circumstances toapprise the defendant of the suit 1 loo& at interest at sta&e

4. 9ethods #in order of preference$. 8ersonal service: summons and complaint%. 'erve agent: agent can !e appointed !y D or law #non resident motorist

statute$2. irst class mail 1 9ullane #Def as&ing court to recogni@e that has trustee he

has done a good *o!$ court reuired this service to those !eneficiaries whoseaddress is &nown.

3. 5otice !y pu!lication: court does not insist on personal service, and

approves of mail for &nown !eneficiaries and pu!lication for un&nown.G. 5ote *udgment is !inding even if some parties did not receive noticeD. )aiver !y mail: =48 rule 3#d$. It does not allow service of process !y mail, it

is waiver of sop !y mail. 'end something !y first class mail, send process,complaint, waiver form and s.a.s.e. and she waives service #get H/ days toanswer$. If she does not waive service, she may have to pic& up the cost ofservice.

SU3JECT #ATTER JURISDICTION

Assessment of which court to go to in the state: state or federal?

4onstitution: Article II, #f$ and % #div$

)hy does it matter?- to litigant:

o federal *udges have lifetime tenure, many state elected

o law, procedure may !e different

o federal !ench considered more ualified

o opposing lawyer not used to federal court

- to policy ma&er:o some areas we want locals deciding an issue

o uniformity: other areas we want consistent decision #interstate cases,

foreign relations, constitution$o fairness: any ris& of pre*udice in local forum

o efficiency and caseload

I. DI/ERSIT4 of citi@enship #not domicile or resident$ 22%#a$#$A. Com)lete diver!it- rule: no diversity if any plaintiff is a citi@en of the same

state as any defendant. 5o reuired !y constitution, !ut courts



3. Determinin citi5en!(i): 6' citi@en is a citi@en of the state in which she isdomiciled.. )hat is domicile? #$ presence in the state #%$ intent to ma&e that state your

permanent home #register to vote, in state tuition, etc..$a. +nly have one domicile at a time, and always have one

!. Jypo: guy domiciled in +C, turns and goes to college in 9A forfour years. And then he goes to law school in 4A for three years, andthen med school for 3 years. 5ever gone !ac& to +C and said henever wants to, !ut has never formed intent to ma&e new states ahome. Jis domicile is +C.

%. "xceptions:a. 'al)win: legal reps of a estate are citi@ens same state as defendant. !. ,en)er: guy in rance with connections do 4A found to !e citi@en of

4A. 8resence not always reuired.c. arou"i: Aliens are citi@ens of the state in which the reside. #want to

limit cases of diversity, so all aliens cant claim diversity !ecause hey

are foreign$2. 4iti@enship of a corporation: never mention domicile.a. 8roscri!ed !y statute. 22%#c$#$: citi@en of #$ all states where

incorporated #%$ and the one place where it has the principal place of !usiness. 'o note corporations can !e citi@ens of two place.

!. 8rincipal place of !usiness, who do you &now this? actors to throwin: 5erve center, where decisions are made, usually headuarters

9uscle center #place of activities$ where the corporation does

more stuff than any where else.c. "very court will loo& at total activities #assess !oth the nerve center

and the muscle center 1 most courts say they will use nerve centerunless all of activity is in a single state$. Discuss on exam muscle andnerve. =emem!er that only one principal place of !usiness #muscle,nerve center, total activities test 1 if !oth muscle and nerve, go to thenerve unless activities in a single state$

3. 7iming: determine diversity at the time the ori#inal complaint was filed.C. Amount in controver!- mu!t exceed 6782999

a. Amount must ecee) KG,///, not counting interest on claim or costs !. 7he plaintiff claim governs unless it is clear to legal certainty that she

can not recover that much. )hatever plaintiff says, we generallyrespect that.

Loo& for a statutory ceiling may!e.c. Aggregation: aggregation is when you must add two or more claimsto get over KG,///. ou aggregate claims if one p v. one d, even if unrelated

7here is no aggregation if there are multiple parties on either

side. 4an not add these claims together. or *oint claims, use total value of the claims 1 i.e. *oint

tortfeasors for one single action. ;oint lia!ility.



II. $EDERAL UESTION #22$A. 5eed a claim that arises under federal law. 4iti@enship and amount in

controversy is irrelevant.3. )ell pleaded complaint rule: In the complaint, loo& only to the plaintiffs claim

itself. It is that claim that must arise under federal law. Ignore everything else

#i.e. anticipated defense and re!uttal.$a. /uestion to as": Is the plaintiff enforcing a federal right? 4ase mustarise underE a federal law

!. %otley: ree lifetime pass on the railroad, congress then passes lawthat prohi!its lifetime passes. 9otley sue railroad and say you are !reaching the contract and that new federal law does not apply to us.

Although federal law !rought up, it is !rought up as a re!uttal to

their defense. 5ot enforcing a federal right, only !reach ofcontract.

c. Arguments for and against )84=: (rightline rule that is easy to administer

'lippery slope: everyone could put a re!uttal of federal law inC. )hat to loo& of in complaint: 9otley told us to loo& to the complaint, !ut what

once at the complaint, 0' Harms tells us what does arising under mean?. An action arises underE a federal law +5L if the complaint is for a

remedy expressly granted !y the federal lawa. ingredient test: +ld 9arshall test, if a federal issue is in any way

in!ol!e) in the claim, that satisfies arising underE !. creation test: #new holmes test$ a suit arises under the law that

creates the cause of action #creation testE$ )hen federal law is involved, !ut nothing the parties are

fighting a!out reuires an interpretation of that federal law, the

case does 5+7 arise under federal lawD. 7here is concurrentMexclusive *urisdiction #federal copyright or federal

securities law are exclusively federal.$

III. SUPPLE#ENTAL JURISDICTION #2H$: 4an get non federal non diverseclaims into federal court. or every claim in federal court there must !e su!*ectmatter *urisdiction, not *ust original claim that got the plaintiff into federal court#counter-claim, cross claim, impleader, etcB$ Assess "<"= claim. If you have nofederal uestion or diversity on every claim, you loo& to supplemental *urisdiction

A. 8olicy:. Pro: efficiency, consistency

%. (on: *ury confusions, dont want to give II incentive to manufacture afederal claim to !ootstrap their way into federal court, state courts are !etter at interpreting state laws, dont want federal courts tell stae courts what thestate law is.

2. 9odern approach is to encourage fol&s to !ring all related claims in.3. &ibbs rule: can hear it if it arises from common nucleus of operative fact of the

original claim. 'ame tMo.



. )ithout regard to state or federal issue, do we expect plaintiff to ordinarily !ring these actions together?

%. is there a su!stantial federal issue?2. same facts should !e tried at trial for the two claims. issues to consi)er:

a. complex or novel area of state law? !. ;ury confusionc. 'tate claim predominate? Is federal claim frivolous?

C. /uestion to as":. does 2Ha grant supplemental *urisdiction to this claim. Answer is yes if it

meets 0i!!s.%. does 2H! ta&e away supplemental *urisdiction?

a. Applies only to diversity cases !. Applies only to certain claims !y plaintiffs #not defendants$.c. Applies only to those of plaintiffs *oined under rule 3, N, %/, %3,

and removes supplemental *urisdiction for rule N plaintiffs, and

thirdly claims !y plaintiffs !y rule %3.D. 5otes:. this is a discretionary power of federal courts, not a right%. If federal claim is dismissed in pre trial litigation, dont have to hear the

state claimI/. Pendant Part- Juri!diction

A. )hen 8 has claim within original f* against d and a claim not within original f*against d% for the same event as against d, then p may !e a!le to append theclaim.. If original claim is !rought in on diversity: plaintiff is not allowed to assert

a claim against a non diverse d% !ecause allowing so would circumvent thecomplete diversity reuirement

a. 4ould get around this !y suing only diverse defendants and wait forthem to *oin no diverse citi@ens

!. Al)in#er: 0i!!s approach not extended to pendant party field.inding that that claims arise from common nucleus of operative factdoes not end inuiry. 7his is merely the constitutional minimum.

%. If original claims is !rought on federal uestion claim: good to go if sorelated that they are part of the same case and controversy

a. )hy different from diversity? Interest of the federal court in hearingthe claim rests on existence of federal uestion, that does not goaway when you add a non diverse defendant. In diversity, it is only a!out the configuration of the parties, not a

su!stantive legal issue. 'ense that when there is a federaluestion a more su!stantial interest in having that case in federalcourt.

/. RE#O/AL defendant sued in state court might !e a!le to remove the case to federalcourt. Do not call it transfer. 7erm of art is removal. 33, 33H, and 33

A. 33a: can !e removed if district court has original *urisdiction in the case



3. 33!: if removal !ased on federal uestion, remove. (ut if removing case on !asis of diversity, it is remova!le only if any defendant is not a resident of theforum.

C. 33#e$: If plaintiff after removal tries to add someone to destroy completediversity, court has discretion to deny *oinder or permit and remand to state

court.D. )hat is not considered:. well pleaded complaint rule applies, thus the fact that defendant has raised a

federal defense to state law claim wont get you removal.%. defendants federal counter claim does not get you removal

E. "xceptions:. if the federal law completely preempts the state law on the matter it

converts the plaintiffs claim in to a federal one and satisfies the well pleaded complaint rule # %etropolitan ife 1 i.e. "=I'A, securities law

$. 5otes:. +ne way street, only from state to federal. 5o such thing to remove from

federal to state. ederal courts remand it to state court%. +nly defendant can remove. 8laintiff can never remove a case.2. 9ust remove within 2/ days of service of the document that first ma&es the

case remova!le. #usually at the outset$, plain statement of the grounds forremoval reuired.

3. 5o removal of a diversity case more than one year after it was filed in statecourt

G. denial of removal is not a final *udgment in a case, so no way to appealexcept through interlocutory review.

. =emand :. 7his is where a federal court remands a case to sate court, remand is

reuired when court determines removal was improper.2. (aterpillar:

a. 6nderstand 33H#!$ 1 Defendant has one year from when they areadded. 8laintiff &eeps in state defendant in to destroy complete

diversity, when real claim is against diverse defendant, and dropsnon diverse year after diverse is added.

!. ou can screw if there was a *urisdictional defect at the time ofremoval, so that the case should have !een remanded !ut was not andthe defect is cured !efore final *udgment, in the interest of efficiencyand finality and economy, that defect is disgregarded on appeal.

LITIATIN JURISDICTION

Default: ris&y, !ut if default *udgment is attempted to !e enforced, can argue no *urisdiction existed in the first place. 4ant argue on merits of case

. (ollateral attac": if you were sued without *urisdiction, you file a secondlawsuit to challenge the outcome of the first lawsuit #as opposed to appeal$



9otion or answer: =48 rule %: when you get sued and served with process, you mustrespond within %/ days !y motion or answer. A motion is not a pleading, it is a reuestfor a court order.

". %#!$: motion to dismiss for defenses. ou can raise either !y motion orthrough your answer. =48 %g and h tell us timing.

. '9; #never waived, even on appeal$: court can raise sua spontea. If no sm*, re-file in state court%. 8; #must raise initially in motion answer or appear. or waive$

a. If no p*, must find another forum with sufficient contacts.2. <enue #must raise initially or waive$3. Insufficient process- very rare, #must raise initially or waive$G. Insufficient service of process #must raise initially or waive$H. ailure to state a claim #raise anytime through the trial$

a. Def can !ring lac& of sm* here if no federal law covering the conduct,i.e. discrimination on !asis of sexual orientation, and instead of *ust !eing &ic&ed out of federal court, court is saying no law anywhere.

. ailure to *oin an indispensa!le party #raise anytime through the trial$

Discovery: if discovery is needed to further find out if sufficient contacts, court can orderdiscovery regarding the issue and def. can consent to *urisdiction only over this issue

(inding effect: once def. has appeared and litigated *urisdiction, cant re-raise issuecollaterally.

Appellate =eview: generally this is only availa!le after final *udgment. 'ome statesearlier review is possi!le.

/ENUE

7hird ma*or hurdle #p*, sm*, and now venue$. "xactly which federal court district do wego to?I. (asic provision: plaintiff suing in federal court. 0ot div or f. 2Na #diversity$ and

2N! federal uestion. 5ow really the same. 0ives us two !asic choices:A. any district where a su!stantial part of the claim aroseF or (. any district where all defendants reside, however the exception: if all

defendants reside in different districts of the same state, you can lay venuewhere one resides.. =esidence not citi@enship #that goes with diversity$ goes with venue

a. =esidence means your domicile. or a corporation, residence is in

all districts where it is su!*ect to personal *urisdiction.II. 7ransfer of venue: we are tal&ing a!out moving within the same *udicial system.4ant transfer !etween federal to state. +nly federal district court to another districtcourt. 7wo transfer statutes #!oth the transferee court must !e a proper venue andmust have personal *urisdiction over the defendant$

A. 3/3a: applies when original court is a proper venue 1 very opened ended *ustloo& to convenience and interest of *ustice.



(. 3/Ha: applies where the transferor is an improper venue, statute says you cantransfer or dismiss.

III. orum non conveniens #fnc$: court dismisses !ecause the litigation would !e moreappropriate elsewhere. 5ot transferring here, we are dismissing. )hy would !edismiss?

A. Dismissing !ecause transfer is impossi!le. #i.e. other court is a in a different *udicial system$. 6sually when court is in a foreign country or another statemore convenient #cant transfer must dismiss without pre*udice$. Piper : plane crash in 'cotland. 4ourt dismissed for fnc !ecause it should

!e litigated in 'cotland.a. act that you are going to recover less is not determinative neither is

more favora!le law. !. 'u!stantial weight given to plaintiffs choice.c. Pri!ate: ease of access to sources of proof, cost of o!taining

attendance of witnesses, availa!ility of compulsory witnesses, needto view premises

d. Public: local interest in having local issues decided at home, interestof having trial in forum familiar with the law, avoiding pro!lems ofconflicts of law, fairness of !urdening citi@ens with *ury duty in anunrelated forum.

%. 'ometimes courts will impose limitations on fnc. Li&e you have to waivecertain defenses li&e sol or no *urisdiction or su!mit to certain *urisdiction

;<AT LA; APPLIES+ERIE DOCTRINE

I. I!!ue: when a federal court sits in diversity what law applies?II. 3lac' Letter la*: 4rie 5 federal court must apply state su!stantive law and federal

procedural law #HG%$A. 4onstitution reuires this. /th Amendment provides that federal governmentcan not invade powers reserved to the states.

III.;(at i! !u%!tantive la*,

A. Ouestions of lia!ility, elements of a defense, elements of a claim, are plainlysu!stantive, !ut !urdens of proof, statute of limitations, etcB are not.

(. Is there a true conflict !etween the laws?. dont assume there is a conflict, loo& for ways to !e reconciled side !y side,

i.e. no direct conflict, narrow constructionB$4. Is there a federal directive on point? #=48, 4onstitution, Act of 4ongress$ If

yes, that governs.. 9a&e a uic& constitutional argument.

a. '4 has never stric&en the =48. If federal directive, dont even loo& at "rie, it winsD. )hat if no federal directive on point? #i.e. no federal directive no point and

federal *udge wants to ignore state law, can she do that?$. 4an not ignore state law if it is a su!stantive issue%. Jow do we &now if it is su!stantive? 7his is pure "rie. Law is a mess.

'tuc& with three famous phrases, so !est you can do is throw in phrases andcome to a reasona!le conclusion.



a. +utcome determination: &uarantee trust. ;ill a))lication o&

&ederal la* in!tead o& !tate la* !ini&icantl- a&&ect t(e outcome o&

t(e litiation, '.4 held that sol is su!stantive. )e want sameoutcome in state or federal law to avoid shopping. 8ro!lem: at some point any rule !ecome outcome determinative,

no direction on limitation #!ut court generally reasona!le$ !. (alance the interests: 'yr) . (alance these interests allowed federal

rules even where state law is outcome determinative. =elation !etween state rule and underlying state right: is rule

!ound up with underlying states rights or interests 4ountervailing interest of the federal *udicial system: strength of

federal interest in having the rule. Li&elihood of effect on the outcome

c. 7win aims of "rie: Hanna #$ avoid forum shopping 1 as& at theoutset of the case, if the federal court ignores state law, will it causelitigants to floc& the federal court? #%$ avoid ineuita!le

administration of law. 1 is it unfair !ecause in state defendants cantaccess federal law and have administration of same *ustice.

I/. Some (i!tor-

A. =ules ena!ling act % 6'.4. HG%: statutory authority that tells you to followthe laws of states where the constitution, and federal provisions reuireotherwise

(. Swift: original thin&ing was that laws of the state did not include state commonlaw. 4ourts could create federal common law, !ut federal common law did notapply to state courts, so lots of inconsistent decisions and led to forum shopping

4. =easoning of "rie:. !etter statutory interpretation

%. alleviated lac& of uniformity and resulting discrimination2. alleviated discrimination !y non citi@ens against citi@ens, !ecause out of

staters always had choice to remove to more favora!le federal court

DA#AES+RE#EDIES

I. PUNITI/E DA#AES: assume compensatory damages ma&e 8 whole, 8D area!out further sanctions for reprehensi!le !ehavior

A. Due 8rocess puts procedural #o!erg- su!*ect to review$ and su!stantive # state

farm 1 deprivation of property with high amounts$ restrictions on 8D.3. 8rocedural: 6ber#

. 4ivil cases reuire *udicial review #serves as a safeguard$ of punitivedamages !ecause they dont have as many safeguards as criminal cases#proof !eyond a reasona!le dou!t, for example$ Hon)a reuires review

C. 'u!stantive: State farm review 8D considering. 7he degree of reprehensi!ility of the Ps misconduct, measured !y:

a. 7he harm caused was physical as opposed to economic !. 7he conduct evinced indifference to or a rec&less disregard for the

health and safety of others



c. 7he victim had financial vulnera!ilityd. 7he conduct involved repeate) actionse. 7he harm was the result of intentional malice, tric&ery, or deceit, or

mere accident%. 7he disparity !etween the actual or potential harm suffered and the damage

awarda. no !right-line ratio, !ut generally punitive damages that are Q N x thecompensatory damages award are constitutional #ratio should !e inthe single digits$>> State farm

!. Amount should reflect punishment for actions in your *urisdiction,not nationwide

c. 7he wealth of a P cannot *ustify an otherwise unconstitutional punitive damages award

2. 7he difference !etween the damages awarded !y the *ury and the penaltiesgiven in similar cases

D. 'tate farm constitutional 8D awards, putting them in federal court away from

state court where they were traditionally.E. 8unitive damages caps can create perverse effects 1 *uries use caps as an anchor and award higher 8D than they would have

$. Damages caps:. if there is a cap it ma&es *ury inclined to give more than they woud, high

num!er serves as anchor %. 'caliaM=ehnuist: no cap, state right issue2. 0ins!urg: no cap !ecause little guy should get lots of money if warranted.

II. INJUNCTI/E RELIE$: some type of performance, reuirement to act or not actordered !y the *udge. Always granted !y a *udge.

A. Anal-tical $rame *or'

. is legal remedy adeuate?%. is in*unction reasona!le?

a. 7he in*unction must !e reasonably necessary to protect the Rslegitimate interest 7si#ma 5 restrictive covenant not to compete$

!. 7he in*unction must !e reasona!le in terms of temporal scope and #eo#raphic scope

2. !alancing test !etween hardship on defendant and plaintiff 3. >> note>>: "ven in cases of inadeuate legal remedy, the harm of granting the

in*unction may !e so great as to outweigh the Rs right to relief III. DECLARATOR4 RELIE$: a party as&s the court for a declaration of their rights

preemptively avoiding a lawsuit. A. 9ay !e com!ined with other types of relief.3. 5o reuirement that the legal remedy !e inadeuate.C. 7here has to !e an actual controversy #no advisory opinions$

I/. PRO/ISIONAL RELIE$ #rule HG$A. Preliminary injunction:

. A valid exercise of due process I the P has a meaningful option to !e heardbefore the deprivation occurs



%. Analytical ramewor&:a. !alance of euities: how harmful to 8 and D if we grant 8I !. pu!lic interestc. li&elihood that the plaintiff will win on the merits

it is not necessary that the moving party !e reasona!ly certain to

succeed on the merits. If the harm that may occur to the R issufficiently serious, it is only necessary that there !e a fairchance of successE on the merits

2. 8ro!lems:a. 7he *udge must sort out two irrepara!le harms,E !alancing of the

harms 1 must weigh potential ris&s in a @ero-sum vacuum Rule =8>c? 1 if a R see&s a preliminary in*unction, they must put

forth a !ond #7he efficacy of the !ond depends on the &ind ofharm the P is facing, as well as how much the !ond is orderedat.$

!. Decisions on 8I tend to !e the end of a case, if it ta&es three months

on the 8I, then sometimes the issue is over 3. ou can appeal a 8I decision directly to court of appeals, reviewa!le for error

or an a!use of discretion

3. Ex parte procedure 1 the other side is never heard # uentes

. =euirements: 8rocedural due process reuires that the parties whose rightsare to !e affected must have 5+7I4" and an +88+=765I7 7+ ("J"A=D, so that the validity of the claim of the person see&ing relief can !e properly evaluated.

a. 7hese rights must !e granted at a meanin#ful time and in ameanin#ful manner 1 when the deprivation can still !e preventedS

!. 5o longer valid to go to court and have sheriff sei@e propertyc. '4 does not allow, rationale for disallowing this type of procedure: Jearing from the other side is necessary !efore !alancing of the

euities can occur 7he harm cannot !e undone, once the item is ta&en

"fficiency 1 the sheriff shouldnt go to the effort to repossess

until a *udge has decided its appropriate Juge potential for a!use and harassment !y the RS

d. Allowa!le sei@ure is limited to 2 situations: 7he sei@ure is directly necessary to secure an important

governmental or pu!lic interest

7here must !e a special need for extremely prompt action 7he person initiating the sei@ure must !e a governmental official,

responsi!le for determining, under the standards of a narrowlydrawn statute, that it was necessary and *ustified in the particular instance

e. 5ote: "ven if you will li&ely loose, you have right ot !e heard even if

it slows down the process



to have property interest protected !y due process, a possessory

interest is enough, do not need clear title/. TE#PORAR4 RESTRAININ ORDERS

A. our reuirements #from uentes$. 5ecessity

%. 5eed for prompt action2. 0overnment or general pu!lic interest at sta&e3. 'ome official chec& of the 8s claims.

3. 5ot to last more than / daysC. 5otification #=ule HG#!$$ 1 7=+s are permissi!le even without written or oral

notice to the other side, so long as ma&e an effort to notify, or show goodreason for not notifying the party.

PLEADINS

I. CO#PLAINTS

A. =ule : #notice pleading$ include a short and plaint statement on grounds you

are entitled to relief #facts and law$, demand and what relief you are see&ing,allege *urisdiction and prayer for relief.. generally if complaint faulty dismissed under %#!$#H$ with leave to amend.

a. %#!$#H$: 8 has not put enough facts in complaint to lead to a suit%. actual v. legal insufficiency

a. actual: you amend the complaint !. Legal: you fight it on the law, appeal to a higher court

(. 8leading in the alternative: #=ule #!$#%$$. Inconsistent pleading is permitted.)hy?. 8 does not have all the facts up front%. 8leading comes at outset, court not going to force you to choose your theory

right way, much turns on discovery2. (y the time you get to trial need one theory.3. 9oves away from common law reuirements of writs.

4. Advocacy nature: can use the complaint to add more than short and plainstatement and use to persuade *udge and media #)o!urn case$ T

D. =ule reuirements: reuires su!*ective good faith and o!*ective research offacts and law to a reasona!le standard. Applies only to representations made tothe court.. =ule #!$#2$: reuires evidentiary support or that support is li&ely to come.%. =ule does not get you out of answering the complaint. ou must respond

to the complaint and then separately file a motion for violation of rule

and serve on D % days after file in court.2. 'usiness &ui)es: Attorney sues for copyright infringement and turns out Nout of / instances could not !e true

3. &erbo)e: =I4+ claim that did not apply in the situation due to a case the plaintiffs did not &now a!out.

II. RESPONDIN TO T<E CO#PLAINT

A. Do nothing - default *udg., possi!le collateral attac&, very ris&yS(. 'pecial Appearance



4. 8re-answer motion 1 Rule @

. 'ame deadlines as answer #%/ or H/ days$%. If granted 1 case dismissed2. If denied 1 go !ac& and file an answer #Rule @>a?>1?>A? gives / days$,

generally cant appeal, not a final *udgment

3. If deciding whether file @>%? defenses 1 these are things that can !edecided without extensive discovery #either on the law or on preliminaryloo& at the facts

D. Answer . %/ days if personally served, H/ days if service is waived

a. 4hoices for your answer: Admit

Deny

ou are without &nowledge or information #U denial$

Affirmative defenses

4ounterclaim

!. 8ielins"i: Def. was intentionally vague in its answer and that wasunfair to 8 who didnt &now 88I was not manufacturer till after sol. If you want to truly contest everything, you can use a general

denial. (ut court will not allow if you &now some stuff is true 4ase demonstrates how answer shape parties perceptions of

what needs to !e litigated (ut if court finds out you &new stuff %. @>(? After filing an answer, respondent waives the right to 8; defenses

a. If respondent has *ust filed an answer and forgot to include 8;, theyhave %/ days to add that defense

2. @>c? 1 can move for *udgment on the pleadings. 7he standard is the sameas for @>%?>=?, !ut its not a pre-answer motion

". Affirmative defenses: 9ust !e raised in answer or waived !ut rule Ga allowsamendments to answers., uestion is when the affirmative defense is waivedand if it is fair to plaintiff.. Definition: If defendant is confessing some facts, !ut says the 8 theory of

lia!ility does not apply !ecause of some additional facts that relievelia!ility, this is an affirmative defense.

%. =ule #c$ lists N specific affirmative defenses, as well as any other matterconstituting an a!oi)ance or affirmati!e )efense.

2. 7est: if P intends to rest his defense upon some fact not included in theallegations, then he is raising an affirmati!e )efense. 4onsiderations:

a. is this something li&ely to ta&e the other side !y surprise

!. extrinsic element or necessary to the casec. policy considerations: who is more li&ely to have evidence #if Def.

then call it affirmative defense$ or is this defense disfavored #thencall it an affirmative defense$

3. 9enial !. affirmati!e )efense:a. 9enial : allegations in the complaint simply arent true



!. Affirmati!e )efense: may!e what R said was true, !ut its not as !adas it sounds !ecause there are other facts that le#ally ustify what Idid

;. ,ule 127b7< !. affirmati!e )efense:

a. ailure to state a claim: assuming everything in the complaint is

true, there are still no grounds for legal relief !. Affirmati!e )efense: assuming everything in the complaint is true,there are new facts that prove were not lia!le

III.A#END#ENTS

A. =ule G#a$: if you are 8 and D has not responded, you can amend once. If youare D, can amend within %/ says of service. +therwise need leave to amendfrom the court.. Leave shall !e given freely when *ustice so reuires%. Loo&ing for evidence of !ad faith2. In the end, if the pre*udice on the R is not great enough to warrant

disallowing amendment !y the P, if will !e granted #and vice versa$

3. airness to the other party #during discovery U +C$(. Gc: relation !ac&, plaintiff can amend !ut must relate !ac& to claim, courts willreally stretch. )e want fol&s to !ring. if '+L has run, does not matter !ecause it relates !ac& %. !ut cant !ring in new action where '+L has run.

DISCO/ER4

I. SCOPE O$ DISCO/ER4

A. 0oals of discovery. 8arties attempt to discover the underlying facts on which lawsuit is !ased

%. 'harpens issues of dispute2. Develops full factual information so there are no surprises at trial3. 8romote settlement

(. =is&s. collateral purpose%. non litigation use of information2. drowning fol&s in discovery reuests3. harassment

4. Devices:. Initial disclosure - identify people and documents that have relevant stuff.,

later on in the case, have to identify what experts you will use at trial

%. depositions2. interrogatories3. reuest for admissionsG. reuests for production of documentsH. physical or mental examination.

D. =ule %H#!$#$ 1 general rule governing discovery, what can !e discovered?a. Anything relevant to the claim or defense of any party regardless if

would !e permissi!le as admissi!le proof



'ome courts say need to !e admissi!le.

!. Does the info. sought ma&e a material fact more or less li&ely to !etrue?E 9a!is: discovera!le info is not limited to that which would !e

admissi!le at trial. Info is relevant if it appears reasonably

calculate) to lea) to the )isco!ery of a)missible e!i)enceEo

Steffan: 7he underlying su!stantive law determines how !road

the scope of discovery will !e.". ;udge involvement: late in the process

. 8arties are left to wor& out discovery on their own unless there is a dispute."arly conference of parties to determine discovery, present plan to court

%. 8arties must go to the court and reuest a motion to compel discovery += a protective order saying they dont have to produce the information

a. District courts have enormous discretion on discovery matters !. As a practical matter, there is very little review of discovery orders

on appealc. Rule =>d? 1 an order merely postponing a particular discovery

reuest should !e granted more freely than one denying the reuestaltogether

II. LI#ITS ON DISCO/ER4

A. =ule %H#!$#%$ 1 limits on discovery for three reasons. =nreasonably (umulati!e: duplicative, o!taina!le from some other source

that is more convenient, less !urdensome, or less expensive%. 6pportunity: 7he party see&ing discovery has had ample opportunity !y

discovery to o!tain the information sought2. 'ur)en: 7he !urden or expense outweighs the li&ely !enefit #party

resources, importance of issue at sta&e, amount in controversy, needs ofcase, importance of discovery in resolving issue$

(. (asis for 8rotective +rder: #rule %H#c$$. 4ourt can issue protective order to protect party from annoyance,

harassment, undue !urden, oppression. +rder can:a. +rder no disclosure !. Discovery can !e had at certain times and placec. 'eal a deposition, only to !e opened !y courtd. 7rade secret info not revealede. 8arties simultaneously file documentsf. Limit num!ers of person for discovery

g. Limit scope to certain matters%. %arese: +rtho association ordering all mem!ership info

a. A motion under Rule =>c? to limit discovery reuires the district *udge to compare the hardships to the parties 1 !alancing test #thin&a!out the pu!lic good vs. the private interests$ Any tools to reconcile the issue without protective order? i.e. in

camera review, redaction of sensitive info



4. Attorney-client privilege: communications are protected, not the underlyingfacts. Rationale: necessary to promote full and fran& disclosure to lawyer !y the

defendant. "ncourage exchange of advice, and accurate information.a. 8ro defendant: facilitates @one of silence particularly if you are

representing a corporation.. ReBuirement!:

a. 9ust !e legal advice sought !. 9ust !e from a person you reasona!ly !elieve is a lawyer c. 4ommunications relating to legal adviced. 9ade in confidence

2. AC and Cor)oration!: =pohn

a. Attorney-client privilege applies when the client is a corporation !. (ontrol #roup test #re*ected !y '4+76'$: if the "" ma&ing the

communication is in a position to control or ta&e su!stantial part in adecision a!out any action which the corporation may ta&e upon the

advice of the attorney, then he is the corporationc. %o)ifie) corporation test: 7he communications concerned matterswithin the scope of the ""s corporate duties and the "" wassufficiently aware that he was !eing uestioned in order that thecorporation could o!tain legal advice #no clear rule$ actors to consider

o In reuesting information from the start, was it clear to

people this information was sought in relation to legaladvice

o 4ould not get info from top managers?

o 4ould information another way? i.e deposition, higher cost

!ut preserve privilege1. <-)o:

a. 8laintiff, pedestrian, is hit !y a delivery truc& who is employed !yA(4 company. Jear a!out accident, <8 for J= finds the driver andinterviews him a!out what happened. not protected !ecause <8 not an attorney. 7+ protect inter-

corporate communications, must !e an attorney or someoneacting in that capacity.

!. =emedy that issue, and hire legal counsel to interview the driver. yes, protected. +utside counsel interviewing corporate

employees. #is it done in a pu!lic place? is there effort to &eep

this confidential?$c. +utside counsel also interviews a receptionist, who happens to have

!een ta&ing smo&e !rea& and watched the accident. may!e not, !ecause she was not acting within the scope of her

employment. 'he is li&e any !ystander on the streetG. Note!: 8rivilege operates despite the relevance of the information.

A!solute protection, regardless of opposing sides needs. (ut privilege can !e waived. )8 is not a!solute protection.



D. )or&-product privilege: =ule %H#!$#2$, Hic"man

@. Te!t:

a. 8laintiff must show su!stantial need of materials and ina!ilitywithout undue hardship to o!tain materials

!. Interpreted to !e applied narrowly

c. (urden on plaintiff to show adeuate reason. Limit!:

a. Does not extend to information which an attorney secures from awitness when no litigation is foreseen.

!. Does not extend to information hidden in attorney filed and essentialto preparation of a case.

c. Does not extend where the witnesses are no longer availa!le or can !e reached only with difficulty

. Rationale:

a. 6nderlying notion is to protect the mental impressions and ideas ofthe attorney. Also to protect his efforts, needs some degree of privacy

!. 6nli&e A4 it protects materials gathered from third parties

RESOLUTION ;IT<OUT TRIAL

I. #OTION

. =ule %#!$#H$: failure to state a claim upon which relief can !e granted>>+5 7J" 9"=I7'>>

%. =ule %#!$#$-#G$V#$: lac& of '9;, lac& of 8;, improper venue, insufficient process, insufficient service of process, and failure to *oin a party under=ule N

II. DE$AULT JUD#ENT #=ule GG$A. Jear nothing from the defendant, default *udgment for plaintiff. 6sually

dismissed without pred*uice, not no the merits.(. 8laintiff still must prove entitled to damagesIII. IN/OLUNTAR4 DIS#ISSAL #rule 3!$

A. +ccurs if plaintiff not moving forward with the case, no clear standard- *udgesdiscretion. 7reated as a !ar to 8 from refilling claim. court very reluctant to use.%. "xception: involuntary dismissals for lac& of *urisdiction, improper venue,

or failure to *oin a party are 5+7 to !e treated as decisions on the meritsI<. DIS#ISSAL #rule 3a$

A. 8laintiff can dismiss without permission !efore the answer is filed, need courtorder after that.

(. <oluntary dismissal does not !ar suit, you have one more shot.4. )hy? 4old feet, settlement, need more time, move *urisdiction/. SETTLE#ENT

A. 8rivate contract !etween parties: no court involvement. If someone !rea&ssettlement, opposing party initiates an !reach of contract claim.. defendant generally wants dismissal with pre*udice #cant refile$%. no pu!lic record of the settlement



(. 4onsent ;udgment: court imprints its approval. 4ourt has power to enforce theterms of the settlement. class actions, minors and incompetents have to !e settled this way

4. Are settlements su!stantive?. parties settle for reasons rather than su!stance #money, media, etc$

%. Pro settlement: cost efficient, !oth parties get what the want, may !e !etteroff with settlement #not all or nothing$2. Anti settlement : not always eual !argaining power, secretive settlements

!ar important information #private contracts$D. 4ourt can reuire settlement and if you dont participate in meaning, court can

sanction you. 4. +alinaus"as

. 7he secrecy of a settlement agreement and the contractual rights of the parties thereunder deserve court protection

%. (67 the courts must carefully police the circumstances under whichlitigants see& to protect their interests while concealing le#itimate areas of

public concern. 7he concern grows more pressing as individuals are harmed !y identical or similar action2. )hen the confidentiality agreement in uestion is part of a case which has

concluded before the filing of discovery motions in the current case,intervention in the previous case and modification of the confidentialityagreement is 5+7 reuired #in other words: the *udge is free to disregardthe agreement and order discovery of its facts$

/I. #EDIATION+AR3ITRATION

A. 9ediation: attempt to settle claim, non !inding(. Ar!itration: !inding ad*udication on the merits

1. Arbitration !. 0rial

a. permits parties to design their own procedure%. ensures decision ma&ers experience in the fieldc. faster, cheaper more privated. you can control the su!stantive law

%. NN: 4ongress passed a law reuiring federal *udges to encoura#e AD= inevery case 1 will !e discussed at the initial meeting. Allows enforcement !ythe court if it is reasona!le.

3. >ic" %or#an oo)s

a. =eferral to AD= does not mandate settlement , it only mandates goodfaith participation in the AD= process

%. 0ood faith participation includes providing the neutral with a mediation memo

reuires the presence of a corporate representative with authority

to settleo Availa!ility !y telephone of a corporate representative with

authority to settle is 5+7 sufficient !ecause the a!sentdecision-ma&er does not have the full !enefit of the AD= proceedings



o If someone with authority to settle is 5+7 present, then

one party is ta&ing advantage of the negotiation process !ygetting information a!out the other sides position withoutgiving up any information

3. If a party does 5+7 want to participate in AD=, options are:

a. 4hallenge the court order #court orders are 5+7 optional to complywithS$%. Indicate ahead of time that you dont plan to participate fully in the

AD= c. Its an issue within the discretion of the *udge 1 the *udge is free to

not reuire AD= in cases where it wont !e helpfulG. Ar!itration clauses in employment contracts:

a. 4ourt will grant no consideration # loss

%. Less li&ely to grant unconsciona!le contract # yster

c. 4ourts particularly wary of pro-employer clauses that ma&edefendant pay large costs, allow plaintiff to choose company, etcB

<II. SU##AR4 JUD#ENT #rule GH#c$A. 'tandard

1. no #enuine issue of material fact

a. material fact is any fact that will ma&e a difference in the outcome%. genuine issue : 4ant *ust disagree, must !e enough evidence for a

reasona!le trier of fact to conclude that x was true or y was true thegenuine issue

c. If there is enough evidence that a reasonable trier of fact would findfor the moving party, then there are no issues of genuine material fact#we dont &now anymore information, you gave us all we needed to

&now$%. moving party entitle) to u)#ment as a matter of law

2. 8rocedurea. Defendant can !ring motion any time%. 8 !ring motion within %/ days of complaint or after 9'; !y Dc. Rule 8=>c? 1 only allows summary *udgment after time for a)equate

)isco!ery(. (urden of proof

. if moving party has !op on issue raised !y the motion, proper to grant onlyif the *ury could not reasona!ly dis!elieve moving parties evidence

%. If moving party does not have !urden of proof, appropriate if opposing party fails to present evidence for a reasona!le *ury to find for him

2. (elote::

a. 'how affirmatively that non-moving party cant prove an element, oryou can *ust prove that they dont have enough evidence to provetheir claim #second part expands ';$

4. 4onsiderations. all reasona!le inferences indulged in favor of opposing party%. court may not weight the evidence and decide who is more persuasive



D. %#!$#H$ v. GH#c$:. %!H: admitting all facts are true, tests sufficiency of the pleadings #failure

to state a claim upon which relief can !e grantedB not a!out actuallyhappened in the case 1 did you state something upon which legal relief can !e granted. $ as they are written, tests sufficiency of the allegations.

%. GHc: 6nli&e pleading motions, summary *udgment allows court to loo& atsufficiency of the evidence. Loo&ing at what actually happened in thetransactionMoccurrence, unli&e %!H

". )itness credi!ility # un)een$. =ule GH#e$: 'upporting affidavits must !e !ased on personal "nowle)#e, not

hearsay. )hen an affidavit has !een filed and is supported, a party mustrespond with specific facts showing a genuine issue of material fact

a. If witness can not !e impeached or additional information can !egained at trial valua!le to 8: '; is properly granted. 4an not force a trial merely to cross examine a witness

8arties have the right to cross-examine in the deposition phase

%. 7he right to use depositions for discovery does 5+7 mean that theyare to supplant the right to call and examine the adverse party !eforethe *ury #*ury gets to decide credi!ility$

c. A party opposed to summary *udgment !ased upon affidavits mustassume some initiative in showing that a factual issue actually exist Any little !it of fact that could case some dou!t on the story

would possi!ly !e enough to stop summary *udgment #enough towarrant a *ury hearing the facts and deciding for themselves$

. 5otes 7(ross. 'ummary *udgment is particularly inappropriate where the inferences which

the parties see& to have drawn deal with uestions of moti!e, intent , and

subecti!e feelin#s an) reactions%. (are allegations of the pleadings, unsupported !y specific evidentiary data,

will ordinarily not defeat a motion for summary *udgmenta. 5+7": if summary *udgment is more li!erally granted, it tends to put

more pressure on the )isco!ery process, forcing parties to revealmore in pretrial

RI<T TO JUR4 TRIAL

I. RI<T TO A JUR4

A. Did this right exist in N? If yes, was it hear in euity or legal court(. If no, is there an analogous claims to this and what is the remedy sough? 0erry

. 'u!stitution remedies: ;ury righta. 4ompensatory, liuidated and punitive damages !. =eplevin, e*ectment, writ of mandamus, ha!eas corpus

%. 'pecific remedies: no *ury righta. In*unction, constructive trust, reformation and recession of a C,

accounting, uiet title, restitution damages.2. Declaratory relief: always a *ury

4. 5otes:



. )henever you have a legal claim, even when *oined to an euita!le one, *ury trial firght always attaches. "ven if legal claim a counter claim.

%. In diversity cases, state law determines the su!stantive dimension of theclaim, !ut federal law determines the right to a *ury trial

D. =eviewing a denial

. would a directed verdict have !een appropriate? )as there any for the thetrier of fact to decide differently than the *udge?II. ROLE O$ T<E JUR4

A. ;ury decides fact, *udge decides law. (ut not always easy to define that line.(. 4ourt usually says when you get to the ultimate uestion of applying law to

facts, !elongs to *ury #i.e. what reasona!le means$ # 9obson

4. )hen there is not enough evidence on either side for the *ury to ma&e areasona!le determination of fact, the *udge can ta&e the decision away from the *ury # ,ie)

III.APPROAC<

A. Is there a right to a *ury trial?

(. )ill either party assert it?4. If exercised, who decides the issues?I/. JUD#ENT AS A #ATTER O$ LA; #directed verdict, ;5+<$

A. (asics:. Stan)ar): =48 rule G/##a$#$ 1 no legally sufficiency evidentiary !asis for

a reasona!le *urer to rule in their favor.%. 4ffect: ta&es case away from *ury, if no rational *ury could find it, forget

a!out the hulla!aloo.2. ?hen: 4an ma&e a ;9L any time after opposing party has made their case,

can renew after verdict.a. 8arty waives their right to ;9L after closing statements and more

importantly after verdict #th Amend., cant try facts after *ury has$(. Directed verdict v. ;5+<

. )hen party moves for D<, *ury has sat through whole trial, dont want tota&e it away from them, if it is so one-sided let the *ury decide it and *udgecan overturn with a ;5+<

%. If close call, *udge prefer a ;5+<, !ecause reversal of D< means a wholenew trial, reversal of a ;5+< simply reinstatement of verdict.

4. ;9L v. 'ummary ;udgment v. pleading motion #%!H$. Plea)in# motion: !rought !efore trial, often !efore answer. 4ourt can not

loo& at evidentiary material, !asis for decision is the pleading.%. Summary u)#ment : (rought !efore trial, court can loo& at evidentiary

hearing. 4ourts loo& to pretrial written su!missions #depos, affs anddocuments$

a. 'tandard really the same for '; and ;9L !. '; saying nothing to have trial a!out, ;9L says nothing for *ury to

deli!erate a!out2. @%: (rought usually at the close of trial and renewed after the verdict,

court can loo& at evidentiary material, and !ases decision on life testimonyand other evidence presented during trial.



D. "vidence:. All inferences in favor of non moving party and un-controverted evidence

from the moving party.%. not up to the *udge to decide if a witness is credi!le, that is a *ury function.

a. (ut in close cases, granting of ;9L depends on *udges opinion of

the case./. NE; TRIALS

A. =ule GN: party or court can move for a new trial, does not tell us the appropriategrounds. 9ust happen wMi / days of *udgment. 4ommon law reasons: procedural error, verdict against weight of the

evidence, *ury misconduct, erroneous *ury instructions(. =ationale: protect right to a *ury trial !y granting new trial not tainted !y !ad

evidence or procedure, etcB4. 8rocess

. 9ust !e within ascertaina!le legal standards.%. 5ew trial is somewhere !etween a ;5+< and *udges impositions of her

opinion of the case. If so one sided, ;5+< may!e appropriate, !ut new trialrelatively lower sta&es !ecause it does not give a final *udgment, *ust a newtrial.

ISSUE+CLAI# PRECLUSION

I. CLAI# PRECLUSION

A. 0eneral 7Heaney

1. ,es u)icata: precludes parties and privies from re-litigating any claimactually litigated to a final *udgment on the merits in the first suit as well asany claim that shoul) have !een litigated in the first suit

2. All claims for relief which are !ased upon the same underlying

transactionE should ordinarily !e litigated in a single action. #flexi!le defo$3. +ld rule precludes same cause of action, now rule is sametransactionMoccurrence #!road preclusion to encourage efficient andconsistency$

a. )hat is transaction: time, space, origin and motivation. 6sually does not !ind third party unless in privity.

(. 8rocess to determine claim preclusion on claim not actually raised in priorlitigation # Heaney$1. 4ould moving party have !rought claim for damages in first suit?2. 'hould he have !rought the claim in the first suit?

a. (alance !etween efficiency and societies interest in providing a

forum for *ust and responsive ad*udication. !. In Jeaney court says no preclusion !ecause as a matter of efficiencymandamus are supposed to !e speedy #we dont want to add a !urdensome claim on that$

4. Jow to raise?1. inappropriate to raise in a %#!$#H$ !ecause only loo&ing at complaint, and 8

is not going to mention past suit2. =aise it in summary *udgment motion.



D. 8reclusion of defendants claims1. ,ule 13: compulsory counter claim that an opposing party must !ring if it

arises out of the same tMo with the lawsuit already filed. 9ust put in your pleadings or it is precluded from separate litigation.

2. Policy: defendants cant hold !ac& on defense and wait on *udgment then

!riing separate suit.a. Exce)tion!: 7%artino if prior lawsuit was uic&ly resolved, no issueto raise counterclaim and we dont run ris& of inconsistency, then wewill allow new claim.

". 8reclusion due to prior case1. ,ule 1: involuntary dismissals although on the merits will not always !e

considered precluded. 7&ar#allo$ Semte"

2. Assi#n preclusi!e effects when:a. 8arty mis!ehaved and want to give teeth to sanctions !. 4onsidered the case and decided on the merits

ull trial: yes

Directed verdict: yes 'ummary *udgment: yes

%#!$#H$: some controversy. Depends if dismissed for su!stance

or procedure. If party gets leave to amend and dismissed %ndtime you are precluded.

3. @uris)iction 7Semte"a. acts: 4A rule that dismissal on '+L does not extinguish su!stantive

rights to file in another state. 3#!$ says it does #essentially$. 'u!right not !arred in suit in 4+, see !elow.

!. )hen sitting in diversity: ed follow the same claim preclusionrules as that states court would have, and their diversity decisions

should have the same claim preclusive effect as a state court decisionwould have

c. =6L": the claim preclusive effect of a *udgment is determined !y thelaws of the forum where the decision was rendered

. *ali)ity of u)#ment: claim preclusion usually reuires *udgment valid, !utexceptions.

a. )hen prior case is litigated, and state court never had *urisdiction#exclusive federal claim$, usually going to give greater weight tofinality and not allow collateral attac&. &ar#allo

II. ISSUE PRECLUSION

A. 7est:

. Issue of fact or law is%. actually litigated triggered and determined !y2. a valid and final *udgment3. determination essential to the *udgment

a. Par"s: railroad case where !rings second suit for negligence. 5otsure if he was ruled against for no damages or con neg. Dont &nowif con neg was essential. 'o no issue preclusion.

b. Policy:



)ant issue to have !een fully and aggressively litigated

)orred a!out incentives, if not essential may not have !een

proper incentive to litigate fully and get the *ust outcome. 7rials are a!out dispute resolution and truth finding, we want

only to use decisions created from truth finding.

6nli&e science, as long as procedure is fair we view thatoutcome as good enough to resolve the issue regardless of truth.

c. ,estatements: if two ways to reach a *udgment #li&e no damages orcontri!utorily negligent$, neither one will !e preclusive. If !othappealed and !oth affirmed, then preclusive.

D. 8rivity. 9oving away from reuirement of same parties, and possi!ility of adding a

third defendant in privity #benson an) for)

%. 9efinition: in privity if your interests are so aligned that it is fair to precludethem from the previous suit.

a. Pri!ity if:

!. 5on party has succeeded partys interest in propertyc. 5on party controlled the original suit

9ust have choice of theories advanced, have actual control, not

enough to have same attorney, facts, witness, your financelitigation or appear as amicus curiae

'ole shareholder over corporation, parent corporation

d. 5on party whose interest were adeuately represented <irtual representation

Demands existence of express or implied legal relationship

#guardians on !ehalf of wards, trustee and !eneficiary$2. >ote: no reuirement to intervene or *oin pending litigation that presents a

uestion effecting your rights. ou are entitled to your day in court, dontwant to force fol&s to follow what others did.

E. 5on-mutual collateral estoppel. 0enerally a non party is not !ound, such person has not had their day in court

and as a matter of due process can not !e denied and interest without one%. 6ffensi!e collateral estoppel: plaintiff using a prior finding against the same

defendant in a prior lawsuit.2. Par"lane: suit , '"4 sues 8ar&lane for false statements. 'uit % shareholders

sue, can use *udgment from first suit against D.3. 9efensi!e collateral estoppel: defendant attempting to use a prior finding

against a new plaintiff #rarely wor&s$

a. 9ore often granted when same 8. 8 suing in two suits for sameaction against D and D%. D% can use D win.

!. 9ore often granted where 8 could have easily *oined in suit.G. $airne!!: Jow much confidence in the first lawsuit

a. Any reason to expect that although fair then not fair now #not proper incentives$

!. Different laws in different states?c. ;udgment essential to the claims?



d. Are there other inconsistent *udgments?H. E&&icienc- 1 offensive collateral estoppel may decrease efficiencyS

a. s incenti!es: encourages the R who could have *oined the firstlawsuit to wait and see how the *udgment turns out. If the st R winsthen the %nd R will !ring a later suit and try to get an issue preclusion

automatic *udgment !. Bs incenti!es: encourages Ps to litigate much more vigorously #may !e on the hoo& for later suits if they dont$ 1 a suit that may havesettled out of court will ta&e more resources and time

JOINDER

II. Joinder: determine scope of litigation. Al*a-! a!' &or oinder and !m. A. 4laim *oinder !y plaintiff: easy. =ule a. 8laintiff can *oin any claims she has

against the defendant, do not have to !e related at all in law or transaction. oudo not have to put them all in.1. )hy *oin?

a. 7hin& a!out claim preclusion later !. 'trategy of !rining multiple claims against D

3. 4laim *oinder !y the defendant: Defendant wants to assert a claim.1. counter claim: governed !y =48 2a and 2!. A counter claim is a claim

against an opposing party. . 'omeone who has already sued you. D !ac&against the 8. iled with your answer. 7wo types:

a. compulsory counterclaim: 2aD must assert that claim in this case orit is waived. 4ant sue in a separate case. 7"'7 Is there any lo#ical relation !etween the claim and the

counterclaim? #from the same aggregate of operative facts$o if the two claims were tried independently, would they

reuire many of the same witnesses and evidence? # #reatla"es

oAre the issue of law raised !y the claim and counterclaim

largely the same?o)ould res *udicata !ar a su!seuent suit on Ps claim

a!sent the compulsory counterclaim rule? !. permissi!e counterclaim: 2!, does not arise out of same transaction

or occurrence. 9ay assert that here, !ut you do not have to. 7he federal courts can exercise supplemental *urisdiction over

compulsory counterclaims, !ut there must !e an independent !asis for *urisdiction over permissive counterclaims

c. ;urisdiction: 8 #5$ and D #L$ have accident. K//,/// claim. D !rings claim !ac& against 8 for KN/,///. 8 claim !elongs in federalcourt, diversity. 4ounter claim? es, it also invo&es diversity. 5oneed for supplemental *urisdiction 'ame hypo, except D counter-claim is for K3G,///. +riginal

claim gets case into federal court. 4ounter claim does notinvo&e diversity, so we need supplemental *urisdiction. Does2Ha grant sup. ;uris.? es, it meets &ibbs #a compulsory



counter claim always meets that$. Does 2H! ta&e away sup. *uris? 5o this is a claim !y the defendant.

d. 4ounter claim v. affirmative defense: you cant recover on anaffirmative defense

2. cross claim: rule @>?claim against a co-party, must arise from same

transaction or occurrence as the underlying case. 5ot compulsory, no suchthing #only compulsory claim in the world is counter claim$.a. 7hree way collision !etween A ( and 4. A#4A$ is plaintiff sues (

#AW$ and 4 #AW$. Amount in controversy over K//, ///. '9;invo&ed !y original claim. )hat claims do you !ring for 4 compulsory counter claim against A, exceeds KG,///, so yes

'9;, invo&es diversity, no tal& of supplemental *urisdiction 4 may file cross claim against (: no diversity in cross claim, so

need supplemental *urisdiction here. 'ame transaction oroccurrence, meets 0i!!s. 5o exception under 2H! !ecausedefendant claim. +nly &ills supplemental *urisdiction on claims

!y plaintiffs.C. ;oinder of co-plaintiffs and co-defendants: =ule %/a. 9ay *oin as co plaintiffs

or co-defendants if #$ claims arise out of same tMo, #%$ they raise at least onecommon uestion.1. @uris)iction: plaintiff structures it in that way, with all these plaintiffs and

defendants, can it get into federal court.a. If plaintiff is *oining party and diversity case, no diversity if those

*oined destroy complete diversity under =ule 3: plaintiff *oining parties for defense of counterclaim

=ule N: *oinder for fol&s needed for *ust ad*udication

=ule %/: permissive *oinders #!y defendant too$

=ule %3: intervention2. Policy: efficiency and consistency

a. (ut cuts the other way, rune the ris& of unmanagea!le, !ias,confusing suits.

3. ?hy oin plaintiffsCa. orce in num!ers for financial reasons and strategy !. 8revention of defensive collateral estoppel, although rarely allowed

. %osley: ten employees suing 09 for title <II discrimination, way different&inds of claims.

a. Rule 9>%? and Rule 1>%? vests in the district court the discretion toorder separate trials in order to prevent delay or pre*udice

!. 4an !e a flexi!le meaning of same transaction, terefore the impulseis towards the broa)est possible oin)er of parties.

c. 7he rule does 5+7 reuire that all uestions of law and fact raised !y the dispute !e common, *ust that there !e +5"

d. 7he fact that individual class mem!ers may have suffered differenteffects from the acts of the P #and therefore may !e see&ing differentremedies$ is immaterial for purposes of *oinder #the court can severcases at the damage award phase$



D. 5ecessary and indispensa!le parties: who must !e *oined? =ule N. Issue has to !e o!vious, 8 structures a case as to leave a party out. 8 sues D and leaves out A#a!sentee$, sometimes a court will gra! A and force him into the pending case.)hy? (ecause she is necessary.1. 3 part analysis:

a. Is A necessary? =ule Na. es if she meets any of these tests #addressall tests$ N#a$#$: without A, the court can not accord complete relief.

"fficiency policy, no duplicative litigation down the road N#a$#%$#$: As interest may !e harmed if she is not *oined.

Na%#%$: As interest may su!*ect the defendant to multiple or

inconsistent o!ligations. !. Is *oinder of A feasi!le? (oils down to 8; and '9;. Is there 8;?

)ould your coming into the case destroy diversity?c. If they cant !e *oined, are they so connected that the lawsuit should

not proceed in their a!sence?

will there !e pre*udice to the un*oined party after the *udgment? 4an the pre*udice !e lessened !y shaping the relief differently?

)ill relief !e adeuate in this persons a!sence?

)ill plaintiff have adeuate remedy if action dismissed for

non*oinder.2. >otes

a. It is not necessary for all *oint tortfeasors to !e named as Ps in asingle lawsuit. A tortfeasor with the usual *oint-and-severalE lia!ilityis merely a permissive party in an action against another with li&elia!ility

!. // miles exception to the fact that state and federal courts have the

same *urisdiction. If defendant is *oined !y rule 3 or N and iswithin // miles, then a summons can !e served. #we really wantnecessary parties in the suit if possi!le$

3. Policy: not a!out *udicial economy, a!out *ust outcome.E. Impleader: =ule 3. 8 sues D, D then sues another D. 7his is called

impleading. 7he defendant !ecomes a third party plaintiff and the newdefendant !ecomes a third party defendant .1. implea)er !. cross claim 1 cross claim involves two parties already in the

lawsuit. % defendants suing each other 2. test: 7hird party defendant must !e secondarily lia!le

a. Lia!ility of t.p.d. is secondary if it turns on lia!ility of original

defendant. Jere, contractor is lia!le only if firm is found lia!le. !. Lia!ility of the two are lin&ed, they will rise and fall together.

3. @uris)iction: say supplemental *urisdiction, sentence or two a!out that.. >ote: If the theory of the third party plaintiff is to point the finger at some

one else, that is not !asis for 3a impleading. If the third party is saying, ifI did do it, someone else is responsi!le then that is appropriate time to use3a.

a. How )o you "now if someone is secon)ary or )eri!ati!e liabilityC



!. turns on legal relationship of third party plaintiff and third partydefendant. 7urns on the su!stantives law. Li&e in product lia!ilitythere is one !etween manufacturer and a dealer. And !etween insurer and a defendant sued.

;. @uris)iction: need to loo& at personal *urisdiction of tpd, no worried a!out

sm*.<. )hy !other?a. Amount of recovery might !e different if you try to sue the tpd

separately !. "fficiency and consistency, second *ury might find tpd not negligent.c. (67 788 can only recover from 78D what the plaintiff is see&ing.

D. )hy narrower test for impleader than cross claima. )e are more weary of !ringing a whole new party. !. 8arty autonomy, allow plaintiff to sue only who they want to.

CLASS ACTIONI. DE$INITION

A. =epresentative party suing on !ehalf of a class, see&ing relief on !ehalf of aclass. 7he unnamed parties rely on the named plaintiffs to sue on their !ehalf.9ust get courts approval to certify a class.

II. POLIC4

A. )hy do you have class action lawsuits?. efficiency%. consistency2. provide a remedy for a claim that is not !ig enough for an individual to

litigate themselves. #Li&e when you get ./ !ac& from a class action suit on

your credit card$(. )hat are the ris&s of class actions?. end up with suits that would not have !een otherwise !rought%. time and cost of trial can !e huge2. ris& that you homogeni@e a lot of claims that should not !e.

4. )hy !ring a class action?. Avoids issues of moontess - If you !ring an individual suit, sometimes the

individual interest is over !efore the law suit is over.III.REUIRE#ENTS

A. =ule %2#a$1. >umerosity

a. 5o answer to how much is enough. 'hould !e so numerous that *oinder of all mem!ers is impractical.%. (ommonality 1 reuirement of cohesiveness. 4lass can not !e all claims

against a defendant, must !e commonality to the claims.a. not a!sence of individual one, difference in damages will no defeat

certification.



2. 0ypicality 1 class rep will !e controlling the litigation, and in order to do soshould have the same incentives and motivations of the average classmem!er

3. A)equacy- reuires class reps and counsel !e prepared to provide fair andadeuate representation to the class. 4ourts loo& to counsels experience,

&nowledge of applica!le law, and resources.(. =ule %2 #!$ 1 classification: this rule controls the type of class action.4lassification ma&es a difference in the litigation !ecause it changesnotification rets and what relief can !e awarded.. 7b71 - mass production of rule N. Allowance of class actions where it is

necessary to avoid creating a ris& of incompati!le standards of conduct forthe party opposing the class or a *udgment for some class mem!ers thatthreaten the interests of others.

a. (ausey: 9ass plane crash. must !e inconsistent o!ligations ofconduct, not *ust damages

%. 7b72- provides class actions where the party opposing the class has acted

or refused to act on grounds discriminatory to the class.a. 9ust !e primarily or exclusively a!out in*unctive or declaratoryrelief.

!. 'uperior res *udicata effect #!inding on all class mem!ers, withoutnotice$

2. 7b73 - small claims and mass torts.a. 4ommon uestion must predominate !. Also reuires that you show that the class action is the superior

method, how? Interest of mem!ers in individually controlling the litigation

o i.e. is this a!out wrongful death or K overpaid *eans?

"xtent that class mem!ers have already commenced litigation Difficulties li&ely to !e incurred in management of the class

actiono4onflicting laws?

o)hat state should it !e !rought in?

o7oo large or over inclusive, etc..

c. =euires that you notify all class mem!ers of suit #pendancy$ anddismissal or settlement and give them an opportunity to !e heard 4lass mem!ers are allowed to opt out. If not, their claims can !e

precluded. 4ourt must approve settlements and dismissals.

o )ant a regulatory !ody involved, to protect unnamed classmem!ers at this point, !ecause class rep gunning forsettlement.

)hy no reuirements in ! or !%?

o )hole point is in*unctive relief, no need for opting out.

o +ften to hard to identify class ! and !%, not going to

reuire notice.



o ( and !% usually more homogenous.

o =es *udicata in ! and !% not yet litgated.

4. 5otes:. 4ourts can conditianlly certify classes #(astano smo&ing case$%. 4annot pee& ahead to the merits when deciding class certification,

pre*udicial to the D2. 'ettling and !ring motion at the same time # Amchem 1 as!estos cases$

a. 4ourt going to scrutini@e settlements more carefully !ecause nolitigation to correct class

!. 'uperiority of class action: not really issue here !ecause notmanagea!ility issues of the litigation, already settled.

c. =ule %2 reuires that attorneys reveal other related settlements thatwill effect the court decision.

3. Immature tort v. mature torta. )ith mature tort li&e as!estos, is this something !etter for legislature

#then you have KKK paid to lo!!yists$

!. 4ertification of an immature tort #li&e (astano results in a higherthan normal ris& that the class action may 5+7 !e superior toindividual ad*udication

I<. JURISDICTION

A. 4AA %//G 1 greatly increased the num!er of class actions in federal court anddecreased forum shopping.. 9i!ersity prior: had to !e complete diversity of named class reps and

named defendants. All class mem!ers had to have claims exceedingKG,///.

a. 'o lawyers only named class reps with claims less than KG,/// andcould stay in state court.

%. 9i!ersity post : If any mem!er of the class is diverse from any defendant andaggregate claim exceeds KGmillion, you can get into federal court.a. Act also got rid of reuirement that defendant not !e from state to

remove2. "xceptions: that are exceptions that are hard to interpret, so going to !e

difficult./. CONSTITUTIONAL CONSIDERATIONS

A. 8reclusive effects on unnamed class mem!ers. 9em!ers represented in a class action are !ound !y the decision #res

*udicata$%. A!sent class mem!ers may collaterally attac& the adeuacy of

representation they received in a prior class suit 1 deprivation of duce processa. =euire notice and opportunity to !e heard. 4lass action do not

necessarily violate due process, !ut we need safeguards. !. If you are going to !ind an a!sent class, has to !e adeuate

representation 1 vague standard.



2. Hansberry: racially restrictive covenant where D attempted to preclude him !ecause he was part of a previous class. 4ourt said, no way, you were notadeuately represented.

(. 8; over unnamed mem!ers without contact with state. A forum 'tate 4A5 exercise *uris. over the claim of an a!sent class-action

R, even though that R may not possess the minimum contacts with the'tate, I:a. 7he R must receive notice and an opportunity to be hear) !. 7he notice must !e the !est practica!le, reasonably calculate) to

appraise parties of the pendency of the action and afford them anopportunity to present o!*ections

c. Dont need notice of opt in, *ust need to provide option to opt outd. )hy are we lenient hear?

4lass mem!er is already adeuately represented

4lass mem!er not li&ely su!*ect to lia!ility

Jave opportunity to opt out

8rocedures set up to protect them #court must approve settlementand will give them notice of one$

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