I. INTRODUCTION ....................................................... 3 II. SUBJECT-MATTER JURISDICTION (SMJ) ................................. 8 B. DIVERSITY JURISDICTION................................................8 C. FEDERAL-QUESTION JURISDICTION.........................................11 D. REMOVAL........................................................... 13 III. ....................... SERVICE, PERSONAL JURISDICTION, AND VENUE 14 A. SERVICE OF PROCESS..................................................14 B. BACKGROUND ON PERSONAL JURISDICTION....................................17 C. SPECIFIC AND GENERAL JURISDICTION......................................20 D. THE “STREAM OF COMMERCE”............................................ 24 E. “EFFECTS” AND THE INTERNET...........................................27 F. ACTIONS IN REM; SERVICE..............................................29 G. VENUE.............................................................32 H. FORUM NON CONVENIENS................................................36 I.FORUM SELECTION.....................................................37 IV. PLEADING ......................................................... 39 A. NOTICE PLEADING.....................................................39 B. TWOMBLY AND IQBAL...................................................43 C. MOTION TO DISMISS...................................................48 D. ANSWERING THE COMPLAINT..............................................56 F. AMENDING PLEADINGS.................................................. 58 V. PARTIES, JOINDER, CLASS ACTIONS .................................. 62 A. PARTIES; BASIC JOINDER..............................................62 B. COMPLEX JOINDER.....................................................69 C. SUPPLEMENTAL JURISDICTION.............................................74 D. CLASS ACTIONS......................................................77 E. CLASS ACTION SETTLEMENTS.............................................84 F. MULTI-DISTRICT LITIGATION............................................87 VI. DISCOVERY AND SETTLEMENT ......................................... 88 1
Transcript
I. INTRODUCTION .............................................................................................................................. 3
II. SUBJECT-MATTER JURISDICTION (SMJ) .......................................................................................... 8
B. DIVERSITY JURISDICTION......................................................................................................................8C. FEDERAL-QUESTION JURISDICTION.......................................................................................................11D. REMOVAL......................................................................................................................................13
III. SERVICE, PERSONAL JURISDICTION, AND VENUE ........................................................................ 14
A. SERVICE OF PROCESS........................................................................................................................14B. BACKGROUND ON PERSONAL JURISDICTION...........................................................................................17C. SPECIFIC AND GENERAL JURISDICTION...................................................................................................20D. THE “STREAM OF COMMERCE”...........................................................................................................24E. “EFFECTS” AND THE INTERNET............................................................................................................27F. ACTIONS IN REM; SERVICE.................................................................................................................29G. VENUE..........................................................................................................................................32H. FORUM NON CONVENIENS................................................................................................................36I. FORUM SELECTION............................................................................................................................37
IV. PLEADING .................................................................................................................................. 39
A. NOTICE PLEADING............................................................................................................................39B. TWOMBLY AND IQBAL.......................................................................................................................43C. MOTION TO DISMISS........................................................................................................................48D. ANSWERING THE COMPLAINT.............................................................................................................56F. AMENDING PLEADINGS......................................................................................................................58
V. PARTIES, JOINDER, CLASS ACTIONS ............................................................................................. 62
A. PARTIES; BASIC JOINDER...................................................................................................................62B. COMPLEX JOINDER...........................................................................................................................69C. SUPPLEMENTAL JURISDICTION.............................................................................................................74D. CLASS ACTIONS...............................................................................................................................77E. CLASS ACTION SETTLEMENTS..............................................................................................................84F. MULTI-DISTRICT LITIGATION...............................................................................................................87
VI. DISCOVERY AND SETTLEMENT ................................................................................................... 88
A. OVERVIEW.....................................................................................................................................88B. DISCOVERABLE MATERIAL..................................................................................................................89C. DISCOVERY TOOLS............................................................................................................................92D. SANCTIONS....................................................................................................................................99
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E. E-DISCOVERY................................................................................................................................100
VII. TRIAL AND JUDGMENT ............................................................................................................ 105
A. DISMISSAL AND SETTLEMENT............................................................................................................105B. SUMMARY JUDGMENT....................................................................................................................109C. JURY TRIAL...................................................................................................................................112D. JUDGMENT AND REMEDIES..............................................................................................................116
VIII. POST-JUDGMENT PROCEDURES ............................................................................................. 123
A. POST-TRIAL PROCEDURES................................................................................................................123B. APPEALS......................................................................................................................................127C. MANDAMUS.................................................................................................................................131D. CLAIM PRECLUSION (AKA RES JUDICATA).............................................................................................132E. ISSUE PRECLUSION (AKA COLLATERAL ESTOPPEL)...................................................................................137F. JUDICIAL ESTOPPEL.........................................................................................................................141
IX. STATE LAW IN FEDERAL COURT ................................................................................................ 142
A. BACKGROUND TO ERIE....................................................................................................................142B. KLAXON; “FEDERAL COMMON LAW”.................................................................................................145C. SUBSTANCE AND PROCEDURE............................................................................................................148
X. FINAL THOUGHTS ...................................................................................................................... 156
A. ATTORNEY’S FEES..........................................................................................................................156B. ARBITRATION................................................................................................................................157C. GERMAN ADVANTAGE IN CIVIL PROCEDURE.........................................................................................160
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Civil Procedure OutlineFall 2018
I. Introductiona. Basics/Crash-course Overview
Civil procedure is the set of rules for "calling out the goons"o Procedure NOT substanceo Civil NOT criminal
Established to make sure laws are obeyed and that individuals can enforce their rights
1. Who decides?o There are rules about jurisdiction - which court can rule over which cases
and which people2. How do we start?
o Cases are initiated with a pleading submitted by the plaintiffo Claim about what the defendant(s) did wrong
3. What about the other side?o The plaintiff must give notice to the defendant of the fact they are being
sued (and what for)o The defendant(s) have the opportunity to respond to the claims in an
answer4. Who is involved in the actual proceeding?
o There are rules about different parties and joinders (to be discussed)5. How do we get the necessary information?
o Fact-finding/discovery Inquisitional - the judge searches for evidence (common in many
European countries) Adversarial - includes what the parties put out themselves (U.S.)
Isn't a search for "the truth" This system cares about establishing a "good fight" and
ensuring that there are no hits below the belt.6. Trial
o Trial by judgeo Trial by jury
7. How do you fix mistakes?o Relief from judgment - remedy using shame court/judge that you began
witho Appeal - take the case to a new (higher) court for consideration
8. How do you reconcile contrary decisions?o Preclusion
9. What rules are you going to apply?o There are choice of law rules (to be discussed later in semester)
b. CSX Docket & Case The docket is filed by & maintain by the clerk Some things that are listed in a docket:
Notices Orders
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Motions (requests for orders) Memoranda or briefs (arguments that typically accompany a motion) Reponses/replies
Discovery Parties gather and submit facts/information/evidence They may ask a judge for an order to obtain a certain piece of evidence Pleading and discovery ca happen at the same time or partially overlap
Pre-trial Before trial, a party may file a motion for summary judgment if the
evidence makes it clear what the outcome of a trial would bea. There is no need for a jury trialb. There is no equivalent to this in criminal law
Trial Produces a verdict by jury or finding of facts by a judge A bench trial is a trial that is only in front of judge(s)
Judgment by Court Court issues some kind of remedy in the form of an order
a. Damages - you have to may money b. Injunction - you have to stop some sort of conduct
If you don't follow the judgment there are consequences:a. If the court ordered damages, they can take your stuff
(execution)b. If the court ordered an injunction, they may fine you (contempt
of court)c. Worst case scenario… you could go to jail
This is what we need to take away - think of courts as a "judgment factory"
Opinion (if applicable) Written by a judge or multiple judges Helps us to understand what happened, what the outcome was, and
based on what analysis Provides precedent for future cases
d. What are the sources of the law? Federal
U.S. Constitution Federal statutes Agency regulations (authorized by statute) Court rules (i.e., Federal Rules of Civil Procedure (FRCP)
o FRCP were established by a judicial conference of the US. Advisory Committee on Civil Rules
Esteemed legal scholars authorized by Congress)o Not a complete list
Federal treaties
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State State Constitution State statutes
o Agency regulationso Court rules
State common law International law (less binding) Federal/general common law (less binding)
Some stuff isn't written down!e. Key Definitions and Concepts
Jurisdiction - the power to try the law Judgment without jurisdiction is VOID
Personal jurisdiction - jurisdiction over individual people or property The power to make someone show up You can grant your own personal jurisdiction by showing up to court
Subject matter jurisdiction - jurisdiction over the type of case, facts, money in controversy, law, type of people
Original jurisdiction - jurisdiction of the court your matter started in (District Courts)
State courts - have very, very, very broad subject matter jurisdictions Limits on state court jurisdiction comes from state laws themselves or if
Congress has placed any limits Federal courts - have limited subject matter jurisdiction
f. The vast majority of litigation is in state court, but this course focuses on federal court: U.S. District Courts (lowest)
Bound by itself and its decisions There are 94 federal districts
a. Each state has at least one There can be multiple divisions within a district (where local court
houses are) U.S. Courts of Appeals (appellate/intermediary)
There are 13 courtsa. 12 regional circuitsb. Federal Circuit (for topics like patents, etc.)
Get appeals from some administrative agencies (like disability hearings) or, most commonly, district courts
Appeal in this case is a right (aka you usually get an appeal if you want it)
Decisions bind district courts within its district; they do not bind state courts (but can be persuasive)
En banca. All judges in a circuit sit on a panelb. Can overturn precedents set by small panels and their own
previous actions U.S. Supreme Court (SCOTUS) (highest)
This is optional and you need to petition for your case to be heard here They only hear about 60-80 cases a year and get many more requests
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Appeals come here from the federal appeals circuits or the highest state courts
Decisions bind state courts and U.S. Courts of Appeals on federal law Has original jurisdiction on ONLY
a. Ambassadorsb. Public ministers/consuls c. States as a party
28 USC §1257 A case can be appealed from a State Supreme Court to SCOTUS if it’s on
a federal issue (as defined by Article III – broader)g. Article III of the U.S. Constitution
Section 1 Establishes the SCOTUS Gives Congress the power to establish more courts Madisonian Compromise - Congress has power to decide if an how
many inferior courts and rules there need to bea. Which they did with the Judiciary Act
Section 2 Which cases?
a. "all Cases in Law and Equity"i. Common law - juries, rules
ii. Equity - chancellor (i.e. judge), flexibleiii. FRCP joins these two concepts
b. Those related to a federal questionc. Admiralty cases (boats)d. When one of the parties is:
i. The U.S.ii. A state
iii. An ambassadore. When there is diversity jurisdiction
i. Parties are from different states, ORii. A U.S. citizen vs. a foreign entity
If your case doesn't fit here --> go to the states!h. Diversity jurisdiction
There is diversity jurisdiction when parties are from different states Amendment 14 of the Constitution discusses residence
Section 1: All persons born or naturalized in the US and subject to the jurisdiction thereof are citizens of the US and the State wherein they reside
Even if you are not a citizen of the US, court will treat you as a citizen of where you are domiciled if you are a permanent resident
Domicile - how we define citizenship for diversity jurisdiction A person is domiciled in a state if they are present and intend to make it
their permanent residency (stay for the foreseeable future) If you are present in a place, but don't intent to stay they, your domicile
is the place where you were last present and intended to stay there Keep your domicile until you get a new one, never in limbo Recap
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a. 14th Amendment of the U.S. Constitutioni. People are a citizen of the state where they reside
b. Domicile means that a person is present and intends to stay there
i. Strawbridge et al v. Curtiss et al (1806) [complete diversity case] Procedural posture: Appeal from decree of Massachusetts Circuit Court -->
SCOTUS Parties: some complainants from MA, all defendants from MA except Curtiss,
who is from VT Issue: is there diversity jurisdiction? Rule of law: diversity jurisdiction exists if the suit is between a citizen of a
state and a citizen of another state Analysis
"Each distinct interest should be represented by persons all of whom are entitled to sue… in the federal courts"
Where the interest is joint, each of the persons concerned in that interest must be liable to be sued in those courts
Conclusion: There has to be complete diversity. In other words, both sides must have completely different citizenships from each other. No one plaintiff and defendant can have the same citizenship
Recap Strawbridge sues Curtiss in federal trial court Curtiss wins and Strawbridge appeals to SCOTUS All plaintiffs and defendants are from Massachusetts except Curtiss,
who is from Vermont The test: does every plaintiff meet diversity with each defendant Court rules that you need complete diversity
a. No same state citizenships between any two parties on opposite sides of the dispute
SCOTUS affirms lower court Purpose: you don't need to be in federal court if parties are from the
same state The diversity issue is not which state, it's about state or federal court
j. Avenues into federal court Constitution
Diversity (Article III) Federal Question (Article III)
Statutes Amount in Controversy (1332) Complete diversity …
You need both a Constitution bucket and all statutory buckets filled You also need ALL of:
SMJa. Which courts can hear your case if both plaintiff and defendant
show up?b. Which system?c. Non-waivable
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PJa. If the defendant does not want to show up, can this court make
them?b. Which state?c. Waivabled. Need both notice AND authority
Venuea. Which DISTRICTb. Considers conveniencec. Waivable
II. Subject-Matter Jurisdiction (SMJ)a. The FRCP do NOT limit SMJ
Rule 82: these rules do not extend or limit SMJ of courtsb. Diversity Jurisdiction
Article III Requires minimal diversity
Amount-in-controversy (28 USC 1332) The amount for this requirement is not what damages are actually
granted, but what the plaintiff alleges There are certain costs (i.e. filing fees, xeroxing, etc.) and attorney’s fees In the U.S., everyone pays their own way/attorney’s fees
a. Our concern is about one side hiring really expensive lawyersb. There are some exceptions in which you may have to pay
another's feesc. In the U.K., the loser pays the winner's fees
Reserves federal courts for important issues with a lot of stake Hard to staff-up federal courts because of life terms --> limited capacity
of federal courts Questions to ask
a. Are they asking for enough?b. Is there a "legal certainty" that there's no way a jury would
award that much?i. St. Paul Mercury Rule
Right now amount-in-controversy is $75,000. You must bring a claim over that amount (at least $75,000.01) to have your claim tried in federal court under this rule.
a. Language of 1332(a) states "exceeds" $75K The plaintiffs can limit how much they ask for Some states don't let you give damage numbers because of a fear that
juries will be swayed The burden is on the party seeking federal subject matter jurisdiction
a. Show that you deserve to be there Defendant can remove to federal court:
a. Allege that they didn't do it, but if they did, the damages are high enough to meet amount-in-controversy requirement
Aggregated claimsa. How much are they fighting over?
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b. Should be (and is) able to combine all claims against the same defendants
c. You cannot combine claims against different defendants 1367
a. Different plaintiffs can't join together to meet amount-in-controversy requirement
b. Exception: if the interest is inseparable between plaintiffs; for example, if the plaintiffs had joint ownership of a precious ruby and someone stole it
1332(c)(1): a corporation shall be deemed to be a citizen of any state by which it is incorporated and of the state where it has its principal place of business
Hertz Corp. v. Friend (2010) [principal place of business case] Plaintiffs Friend and Nhieu sue Hertz in state court Hertz removes the case to federal court, there is an appeal and it is
brought to SCOTUS Plaintiffs are both citizens of California Hertz has its headquarters in NJ, they are incorporated in DE, and a
plurality of their revenue comes from business in CAa. So where is their citizenship?
Supreme Court tried many things throughout the yearsa. Where are the shareholders citizens?b. State of incorporationc. Adds "principal place of business" and state of incorporation
(1332(c))i. Because many don't actually do business in their states
of incorporationii. With complete diversity rule, this additional avenue of
citizenship actually reduces cases brought in federal court
A principal place of business is the "nerve center"a. Generally, where HQ is b. NOT where the majority of their operations or revenue arec. This could change yearly, and citizenship should not change
yearlyd. SCOTUS rules that a principal place of business is within a state,
not an entire state More diversity rules
The court can order perfect diversity and have someone dropped from the defendants list
1332(c)(1): insurance company assumes citizenship of the insured, only in direct actions
a. Why direct action?i. If not direct action, then you will include the person
already, don’t need the extra labelii. Don’t want to have people suing the insurance
company as a direct action for a run around 1332(c)(2): estate holder's step into citizenship of the deceased
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Diversity is met because the insurance company itself is a party, not in place of their insured (direct)
First party insurance: you file for claim and get paida. Ex. Health insurance
Third party insurance: another party is involveda. Ex. Car insurance
For partnerships, they are not treated like corporations, they look to all the citizenships of the partners
a. 1332 doesn't address partnerships (or anything other than a corporation)
b. i.e. law firms 1332(e): D.C. Puerto Rico and other territories count as citizenships for
diversity purposesa. This is not in the Constitution, but the Supreme Court allows it –
also it’s in this statute Federal judges - appointed by president State judges - appointed by governor or committed, or elected Why is there a preference of courts between parties?
a. There are differences between judgesi. Some may be more experienced, lenient, have a more
favorable ruling history, etc.b. Venue is important
i. A lawyer may prefer state court because they know the state law well
ii. State courts may be easier to get intoiii. Lawyers become familiar with specific courts, clerks,
and judges Diefenthal v. C.A.B. (1982) [airline case – no way damages over amount in
controversy] Amount in controversy at the time was $10,000 Diefenthals sue Eastern Airlines and C.A.B. for $50,000 (about $100,000
with inflation) They sue for embarrassment, humiliation, and emotional distress.
a. They bought first class tickets on an Eastern Airlines flight, requesting seats in the smoking section, which they verified before their departure.
b. After boarding they were informed that first class was filled and that they would have to sit in a non-smoking section if they wanted to fly first class.
c. They allege that a flight attendant treated them “brusquely” It is filed in district court and gets sent to 5th circuit Court ruled that it was a good faith claim/estimate of damages, but they
didn't provide evidence of damagesa. "Empty-head, good-heart defense"b. What could they have provided to assert proper amount-in-
controversy?i. Witness accounts, medical bills
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They amend their complaint to allege that the flight attendant intended to harm them
Court had to decide (legally), could a reasonable jury EVER award this much?
They are ultimately unsuccessful Federated Mutual Insurance Company vs. Williams Trull Company, Inc.
Background: Insurer brought a declaratory judgment action against insured agricultural equipment retailer, seeking a determination of whether coverage existed under its commercial property policy for fire damage to insured's premises. Insured filed counterclaims for breach of policy and unlawful practices.
c. Federal-Question Jurisdiction Article III: "arising under" federal law
Federal law is involved in any way (Osborn v. Bank of the United States Test)
1331 District Courts have original jurisdiction of all cases arising under federal
law Federal law is involved in the plaintiff's affirmative case
Why do the Constitution and statute say the same thing but mean different things?
Court interpreted them differently Louisville & Nashville Railroad Co. v. Mottley (1908) [train passes/arising
under fed. law case] Mottleys get free train passes for releasing damages relation to another
action; they have a contract for free passes for life New Congress bill is passed and forbid free passes
a. The purpose of this bill was to prevent corruption between politicians and railroad companies
Railroad says their hands are tied because of the law Mottleys alleged that law is in violation of the 5th amendment due
process clause Case is remitted to circuit court with instructions to dismiss for no
jurisdiction The original complaint came under state law (breach of contract)
Federal question and the well-pleaded complaint: Can plaintiff win without a federal issue? "well-pleaded complaint" - the minimal amount you need to win Federal court won't hear the case if the federal issue is brought up in
the response; it must be present in the complaint Declaratory judgment action: judgment from court to be a shield for
future lawsuita. Standard suit: I’m going to sue the insurance company to get my
money on the fire insuranceb. Declaratory judgment: Insurance company sues me for a
declaration that I set the fire myself. They don’t owe me anything. Allows party to prevent a future suit that you know is coming down the pipe.
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What if Mottley sought declaratory judgment that ruled they didn't own anything, then the case becomes a race to the courthouse
a. Look to mirror-image suitb. Plaintiff’s possible suit is what matters for jurisdiction
Doors to well-pleaded complaint rule:a. Holmes test
i. What is the law which the cause of action arises under?1. Suing for breach of contract is right under state
law, so it goes to state courtii. What law gives you something to sue about?
b. Grable testi. Necessarily raised by plaintiff
1. Can the plaintiff tell their story about why they win without federal law?
ii. Actually disputediii. Substantial (I.e. important)
1. Are a lot of people affected by thisiv. Consistent with state-federal balance
1. If we allowed cases like this in, would it skew the amount of cases between state & federal?
2. A little hard to apply3. In theory 3 and 4 are separate elements, but in
practice they go togetherc. Mottley's would not have passed the Grable test
i. The issue is not necessarily raised by plaintiffii. The issue is actually disputed
iii. Constitutionality of a federal law is a substantial issueiv. Constitutionality is a federal issue
Gunn v. Minton (2014) (SCOTUS) [patent/malpractice case – fails Grable] Minton had to show federal law, Mottleys didn't Minton developed computer program and sues NSAD for infringing
patent He loses because his patent is judged to be invalid and the reason its
invalid is because he allegedly sold it to another company, allowed it to be used by another company more than 1 year before registering it.
Minton’s defense: experimental use argument Minton sues Gunn (his lawyer) in TX state court It works under Article III, but not under Holmes. What about the Grable
test?a. Necessarily raised? Yesb. Actually disputed? Yesc. Substantial? No
i. Minton’s patent is going to be invalid no matter which way the case goes.
ii. Only issue: are we going to move money between Minton and Gunn. Nobody else is going to be affected. No one else cares about this issue.
d. Balance? No
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i. Doesn’t want federal courts ruling on attorney malpractice dealing with patents. Don’t want cases that don’t have important federal patent law
Ruling: Malpractice claim did not arise under federal law. Other federal question things:
Patents are always in federal court - why?a. We don't want any one state making rules - uniformity is
importantb. Patents go to special courtc. We are more willing to tolerate variations in other areas
Moonlight Café Arbol - Title VII gives right to sue for damages and you can sue an
employer Employer is defined by act as someone that has more than 15
employees Can Arbol go to federal court?
Passes Holmes test - filing under Title VII Café raise the employer clause too late Subject matter jurisdiction can ALWAYS be challenged at any stage of a
cased. Removal
There are two ways to get into federal court Plaintiff files in federal court Defendant removes to federal court
A removed cased must go to the federal court in the district where the state court exists
1441 You can remove if there was original, federal subject matter jurisdiction (b)(2): local defendant rule
a. Civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a)
b. If there's a local defendant, it cannot be removed to federal court
c. This counts for any defendant, not just the one that moves to remove
(a): If original jurisdiction is okay, then it's removable (b):
a. Ignore fictitious defendants (you can't tell where they're from)b. Local defendant rule - bar to removal, but not jurisdictional
1446 (a): file notice of removal in the federal court you wish to move to (b)(2)(a): all defendants have to join removal
a. If one doesn't want to, you all stay in state court (d): you have to give notice of removal to plaintiffs and state court
a. you have 30 days to file notice of removal after complaintb. Get a new 30 days to remove for things other than diversity that
are introduced (after amendment) 1447
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(c): you have 30 days to move to remand a. Motion has to be filed in federal courtb. But you can raise SMJ at any time
(d): can't appeal remandsa. There are some exceptions that we do not need to knowb. States (almost) always have jurisdiction
(e): court can choose to deny a joinder of a defendant if they're added only to destroy diversity
Court will do evidentiary hearing if they need to validate notice of removal Removal is immediate - state court no longer has power
Federal court can remand the case back down, but in the meantime the case is out of state court
You can remand or remove a case for SMJ at any time Some states allow you to sue someone without knowing their name
Put in "John Doe" and switch in the real name later Notice is an announcement; motion is a question Lindsay Lohan example
Lohan sues Pitbull, Neyo, and Sony Music in NY state court But defendants want to be in federal court The defense alleges there is complete diversity & amount-in-
controversya. Lohan is not a NY citizen but actually a Californian
Sony Music is a NY citizen, so they wouldn't be able to remove from NY state court with Lohan's stated (NY) domicile, so they challenge it
Removal for diversity expires after a year because you've been in court for so long
You look at the domiciles at the time of filing Even if something relevant is introduced later You can't just add someone to change court
III. Service, Personal Jurisdiction, and Venuea. Service of Process
Service has to follow rules/statutes and DPC of 5th/14th Amendments to be effective, legally valid and binding
Initial process: summons to show up in courto Summons are a legally binding command to appearo Rule 4
Intermediate process: discovery ordero Happens during the caseo i.e. subpoena o Rule 4.1
Final process: orders for damages to be paid, injunction etc.o Rule 4.1
Other Filings – Rule 5 Rules
o 3: file a complaint with the clerk's office Case is commenced when you file complaint Statute of limitations - starts at filing complaint, others on the service
date (state law)
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o 4: service of process (b): clerk issues summons
Order from the court to show up Court does it as long as you have proper form, no review
(c): you can't serve yourself (as a party) Person serving must be 18+ Someone who's not a party can serve
Your attorney, professional process server, your dad Must give complaint AND summons in service of process
The court has to issue summons, no matter how frivolous the complaint
(d): waiver of service Plaintiff can mail the complaint and waiver form to the defendant,
ask them to sign and send it back If you fail to waive without good cause, you have to pay to
get served They also get more time to respond If you don't waive, it's treated as your denial
Plaintiff has to file signed waiver with the court Date of filing = date of service You can send a waiver, if within 30(?) days, defendant can
wait to sign and return until after statute of limitations has run out (if applicable)
(e): Four main ways to serve someone in the US. Hand delivery to party (personal service) Hand delivery to dwelling with a resident of reasonable age and
suitable discretion Hand delivery to an authorized agent (appointed by defendant) Follow state law for the state where delivery is made or where the
court is For summons in state court, just apply it to federal court Mail Publication (newspaper)
(f): foreign individuals Rules set up by treaties (ex. Hague) Personal service/mail if foreign country's law allows it Foreign legal authority (their law) As the court orders, unless a treaty forbids
(g): If you're going to serve a minor, follow state law
(h): for corporations Follow state law Deliver to officer, general agent, or other agent (CSC/CT Corp.)
Officer – like CEO, CFO (defined by Articles of Incorporation) General agent: somebody who can generally bind the
corporation Doesn’t matter where officer is, you can serve them
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(k): valid service: Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
(1)(A): act like a state court who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located;
If they could exercise personal jurisdiction, so can they 14th Amendment due process clause You have to look at state laws ("long arm statutes")
(1)(B): 100-mile bulge rule who is a party joined under Rule 14 or 19 and is served
within a judicial district of the United States and not more than 100 miles from where the summons was issued;
(1)(C): authorized by federal statute 2: Federal fallback
No state could do it & it's a federal law claim Serving summons or filing waiver of service establishes
PJ As long it's consistent with U.S. Constitution (5th
amendment) and laws (l): Proving service
Process server has to fill out an affidavit stating that it was delivered
Oath (notarized) Declaration §1746
(m): Time limit for service You have 90 days to serve after the claim (exception for foreign
entities) If you don't serve, court dismissed without prejudice (you can file
again)o 5: serving other documents
Plaintiff is responsible for servingo But you can't serve yourself as a party
There is a policy concern about confrontation and concern about lying (that you won't really serve)
In forma pauperis: if someone can't afford a service processor, then a marshal, sheriff, etc. appointed by the court will do ito *Maybe* some review to ensure that it’s not a frivolous claim
If you never receive notice?o There could be a default judgment against youo Rule 60: you can get out of a default judgment
Rules Statutes Constitution
Federal FRCP 28 USC 5th Amendment
State (i.e. North Carolina) NC RCP NC General Statutes 14th Amendment; State Constitution
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Mullane v. Central Hanover Bank & Trust Co. (1950) (SCOTUS) [Mullane test] o Bank has trust to which there are many parties
A lot people (grandchildren) are included of whom they don't have contact information
But they still need to get in touch with them all State law allows notice by publication, but SCOTUS said that it
violated due process if you have the addresso Mullane test (course pack p. 341)
*notice* reasonably calculated… Notice desirous of actually informing Phone call notice is okay under test, but not under Rule 4
Jones v. Flowers (2006) (SCOTUS) [house seized/publication/reasonable notice case] o Jones mistakenly stops paying property taxo State mails notice
It is returned o Notice is then published in newspapero After no response, state seizes and sells house to Flowers
Flowers tries to evict Joneso Jones argues that this dealing violates the 14th amendment due process
clause Due process does not mean that someone actually finds out There's a difference between actual notice (you are notified/aware)
and constructive notice (you knew or should have known) o The state knew that Jones didn't get the noticeo Justice Thomas is worried about incentive against/burden on the stateo Ruling: the state doesn't have to research Jones' whereabouts, but in this
case they violated DPC of 14th Amendment, failed Mullane test Court should have followed up on returned certified mail; there was
more they could have done.b. Background on Personal Jurisdiction
Jurisdiction = power Types
Subject matter jurisdiction = power to try that type of case Personal jurisdiction = power to make parties show up (typically
defendant)a. Which court can force the defendant to show up
You need BOTH types of jurisdiction to try a case Waiving jurisdiction
You cannot waive subject matter jurisdiction You can waive personal jurisdiction
a. Someone can just volunteer to be bound by courtb. If you show up w/o contesting personal jurisdiction, you waive
To have personal jurisdiction the court must: Give you notice
a. Notice is by service of process (service of order) Have authority
Definitions/Key Points
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Rendering court - renders decision Enforcing court - has to enforce the judgment Collateral attack - defendant asks enforcing court not to enforce
judgment a. You can attack judgment's substance
i. Is negligence under the other jurisdiction different from negligence in our jurisdiction?
b. You can attack personal jurisdictioni. Under the jurisdiction's law?
ii. Under international law? General appearance - you forfeit ability to challenge personal
jurisdiction Special appearance
a. Old rule: you can argue jurisdiction but NOT meritsb. Modern rule: OK to show up and argue jurisdiction AND merits
until final judgmenti. Without granting consent
Executive jurisdiction - power of officersa. State sheriffs can pull people over in their state only (unless
they start chasing the person in their state and the person crosses the border)
Legislative jurisdictiona. Personal (Where you are living)b. Borders (what happens within)
Judicial jurisdiction - within the state borders In personam jurisdiction - jurisdiction over a specific person
a. Judgment follows the person b. ($ damages, injunction)
In rem jurisdiction - jurisdiction over a thinga. May affect various people who have interest in that thingb. (condemnation, forfeiture)
Quasi in rem jurisdiction - establish ownership or satisfy a debta. Property can be seized by court
Long-arm statutesa. State jurisdictional statuteb. law which gives a local state court jurisdiction over an out-of-
state company or individual whose actions caused damage locally or to a local resident.
c. State is reaching the long arm of the law to grab defendant and subject them to their jurisdiction
d. Long-arm statutes often authorize state courts to exercise jurisdiction over cases arising out of contacts such as committing a tortious act within the state, transacting business in the state, or owning property in the state.
D’Arcy v. Ketchum (1850) (SCOTUS) [joint debtors – no PJ case] George H. Gossip (NY) and James D'Arcy (LA) have a partnership They are in debt to Ketchum, Rogers, and Bement Ketchum & Co. serve process on Gossip, but not on D'Arcy
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NY statute says that only one of joint debtors has to come into court But Gossip doesn't have money, D'Arcy has it Ketchum sues D'Arcy in circuit court in LA --> appealed to SCOTUS Article IV, Section 1: Full faith and credit clause 1790 federal statute to enforce full faith and credit
a. Acts, records, proceedings in on state should be honored in another
b. Doesn't say what makes a judgment valid At the time, a valid, foreign judgment was prima facie
a. You could maybe challengeb. Valid, sister-state judgment was conclusive under full faith and
credit clause NY can't just declare that D'Arcy has to pay no matter where he is in the
world based on what happened with his partner NY doesn't have the authority to make D'Arcy show up International laws (old rule for personal jurisdiction)
a. Service in the stateb. Residencec. Consent/voluntary appearance
What does Ketchum have to do now?a. Start all over in Louisianab. Not an issue of double defense because NY judgment isn't valid
Lafayette Insurance Company v. French (1855) IN insurance company insures OH citizen French v. Lafayette in OH court
a. Lafayette doesn't show upb. OH rules for Frenchc. French brings to IN for enforcement
Court thinks corp. can be sued where they are incorporated Argument: you did business in OH & you can't do business in OH
without being a corporation OH state consents to you doing business with conditions
a. Condition: an agent can accept serviceb. You have waived your right to not consent
Pennoyer v. Neff (1878) (SCOTUS) [serving process while physically in state] Old lawsuit
a. Mitchell sues Neff in OR state court for unpaid legal billsb. Mitchell can't find Neff
i. Puts out publication notice (writ-like notice)ii. Very improbable that he would see it
iii. Why should he go to court if he does see it?iv. Neff doesn't think they have authority over him
c. Neff doesn't show upd. OR grants default judgment against Neff ($253)e. Mitchell obtains writ to auction off land that Neff owned ($15k)f. Mitchell gets land and sells it to Pennoyerg. Neff returns, sees Pennoyer on land
Neff sues Pennoyer in federal court
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a. Diversity: Pennoyer is from OR, Neff is from CA Circuit court rules that the publication Mitchell put out was not enough Pennoyer appeals to supreme court Public law = international law Two principles of public law:
a. Every state possesses exclusive jurisdiction/sovereignty over persons and property within its territory
b. No state can exercise direct jurisdiction/authority over persons or property outside its territory
Neff wasn't in the state to be served, is not a resident/subject to state law, and did not consent --> no jurisdiction
Land is in the state, so court could have jurisdiction over the landa. But Mitchell claimed the land AFTER his judgment
He would have had to attach (seize) the property BEFORE the judgmenta. If you can do it after, you basically establish in personam
jurisdiction over anything Neff ever owns Dicta of case:
a. Due process - you can't take property away without a court of competent jurisdiction
Constitutional concepts discussed:a. Due process clauseb. Full faith and credit clause
Wrap-up The international rules are really doing the work Civil status (marriage example)
a. Can rule status even if one partner is not there because it's a simple status change
The rule in Lafayette is still good (appointing an agent for service) Pennoyer changes framing of personal jurisdiction
a. Old rule was based on international law at time of enforcement i. Neff is trapped in Oregon
b. Adding in due process clause i. Can get to SCOTUS
c. States change operations to adhere to SCOTUS interpretation of due process clause
14th amendment due process a. Raised in rendering court
Oregon couldn't use international in rem or in personam laws. Old rule
a. Served in the state,b. Citizen/resident of the state, ORc. Consent
Pennoyer - look at it in lens of the time, people were not as mobilea. Things change, and rules are now a bad policy
If state court doesn't have jurisdiction, federal court doesn’t under 4(k)(1)(a)
Due process requires that personal jurisdiction comport with “traditional notions of fair play and substantial justice,” resting either on
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the older grounds recognized in Pennoyer (consent, citizenship, in-state service) or on the newer grounds of specific and general jurisdiction (Int’l Shoe).
c. Specific and General Jurisdiction Hess v. Pawloski (1927) (SCOTUS) [Mass. RMV as a process agent]
Hess drives into MA & injures MA resident He leaves, but is sued in MA Mindset: we had authority in MA to ban driving, we can condition
driving, by driving on our roads, you have consenteda. You get a benefit by driving on our roads, so you're subject to
our laws and you consent to jurisdictionb. DMV as agent for service
Estoppel - when the law will stop you from doing something People are trying to get around Pennoyer
International Shoe Co. v. Washington (1945) International Shoe displays merchandise and solicits orders in WA Salesmen rent out their own spaces The sales contracts are accepted (formed) in Missouri
a. But the shoes are shipped on railroad (free on board)b. Shoes are property of customer as soon as they leave the
factory International Shoe wanted to stay out of WA
a. It only exists in Missourib. No property, no contracts, no agents, etc. in other states
WA wants to collect money for their unemployment funda. Their citizens are employees of International Shoe
Washington sues in WA state courta. Serve employee in WA (not authorized to receive service)b. Mail it to Missouri (not OK under Pennoyer)
Court changes the rule Due process required that they have certain minimum contacts (if not
present in the state)a. "traditional notions of fair play and substantial justice"b. International Shoe standardc. It's fair because presence is established by activities
Createsa. Specific jurisdiction
i. Requires minimum contacts that give rise to the suit and it's fair & reasonable
b. General jurisdictioni. Contacts with state are so extensive (continuous and
systematic) that there can be a suit filed against you for any claim
Ruling on corporations were applied to individuals Rules v. Standards
Standard: general principle that adheres more closely to the aims it hopes to achieve
a. More vague, maybe not measurable
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b. Ex: only mature people can vote Rule: a proxy for our aim
a. More rigidb. We think it's easier to determine, but it becomes arbitraryc. Ex: only 18+ people can vote
Rules are only useful to apply if they help achieve the aima. When facts no longer fit the rule, costs of the rule go up
McGee v. International Life Insurance Co. (1957) (SCOTUS) [life insurance case]
Franklin (CA) buys insurances form Empire (AZ corp.), Empire gives the policy tot International Life (TX). Franklin dies and his mother, McGee (CA), is the beneficiary
a. International Life refuses to give her money, and she sues themb. She wins, gets her judgment and takes it to TX to enforce the
judgment therec. But the TX court says there’s no jurisdiction
SCOTUSa. CA has manifest interest/there was specific jurisdiction
i. Delivered contract to CAii. Franklin resided in and sent money from CA
What kind of contacts are we looking for? Contact inflation - you can't just count contacts without measuring
them Creates a very difficult rule to apply Ruling: DPC did not preclude CA from entering a judgment binding on
respondent. It is sufficient for purposes of DPC that the suit was based on a contract which had substantial connection with that state.
Hanson v. Denckla (1958) Cuts back on McGee Rule: there has to be deliberate state contact by the defendant
a. Purposeful availment of benefits/protections of the jurisdictionb. Conducting activity in the forum
General Jurisdiction Pennoyer-era ideas about domicile
a. Individual --> domicileb. You are a citizen and subject to all claims here
International Shoea. Business --> state of incorporation and principal place of
business (HQ)b. You are present and subject to all claims here
Perkins v. Benguet Consolidated Mining Co.a. Temporarily displaced because of WWIIb. Company from Philippines had a temporary HQ in OHc. Temporary principal place of businessd. Creates an exception
Goodyeara. Creates "at home" language/standard
Daimler AG v. Bauman (2014) (SCOTUS) [Argentine claim in CA court]
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Argentine sues Daimler AG in N.D. Ca. Daimler is parent company of MB Argentina and MBUSA (incorporated
in DE and PPB in NJ) All events took place in Argentina MBUSA sells cars that Daimler makes in CA Sales in CA have no connection to the claims --> there is NO specific
jurisdiction Plaintiff brings a general jurisdiction
a. CA has general jurisdiction over MBUSA i. They have cares, offices, $ there
ii. Defendant did not contest thisb. Attribute MBUSA's contacts to Daimler
i. Court assumes thisc. We have enough for CA to have general jurisdiction over
Daimler Court rules that contacts are not a large enough portion of total
business Piercing the veil (veil of corporate separation between affiliates)
a. Owning shares of a company doesn't make you the same as that company for liability or jurisdiction
b. All of the liabilities/jurisdictions belong to another affiliatec. Most people thought this case was about piercing the veil, but
they just assumed that affiliate could attribute contacts to parent company
Court: we're not asking about enough contacts, we're asking about what KIND
a. "at home"i. Must be continuous and systematic
ii. But that's not all - qualitive measure iii. To be "at home":
Holes in the arguments are in the footnotes Dissent from Sotomayor
a. This is unreasonable, there's no reason to have a case here, nothing in the case had to do with CA
Majoritya. Fair and reasonable doesn't matter if you're "at home"
Courts haven't ruled on "at home" for LLPa. Or rather it's not entirely clear what to dob. TBD…
Different from Pennoyer: in Pennoyer, it didn't matter what the suit was about
Ruling: Appellant is not “at home” in CA and cannot be sued there for injuries resulting from conduct in Argentina.
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Bristol-Myers Squibb v. Superior Court (2017) (SCOTUS) [prescription meds being sent around country]
There are minimum contacts with CA But those contacts don't give rise to other state citizens suits California citizens are good Did stuff in state they weren't incorporated or headquartered in
a. Incorporated NY, PPB NJ Narrowed range of where you could bring nationwide suits
a. General jurisdiction ORb. Some place that gave rise to all of the claim (where pills are
manufactured) Summary:
a. Suit arise caseb. Consequences for what counts as a contact c. Ginsburg is worried about people getting around jurisdiction
i. General U.S. personal jurisdiction Ruling: California courts cannot claim specific jurisdiction.
Test for contacts "evidence"
a. The defendant's contact provides evidence of one or more elements of the underlying claims
"but for"a. Claim would not have arisen but for this contactb. Modified in practice
i. Proximate cause in tortsd. The “Stream of Commerce”
Worldwide Volkswagen v. Woodson (1980) (SCOTUS) [accident in OK case] The Robinsons buy a car in NY, get in a car accident in OK, and sue in OK
court Petitioners enter special appearance to dispute jurisdiction
a. Seaway (seller)b. Worldwide Volkswagen (distributor)c. Volkswagen of America (importer)d. Audi (manufacturer)
The respondent in the case (Woodson) is the district judge in OK OK Supreme court denies petitioners, citing OK long-arm statute
a. Product made to be mobile, should have anticipated it would go everywhere
b. Foreseeable that car would travel to OK and get in accident SCOTUS - concerns of fairness and reasonableness
a. No formula; they use a "kitchen sink" or all things considered test for what’s fair and reasonable
i. Burden on the defendant (DPC)1. Not on plaintiff because they pick forum
ii. Forum state's interest in adjudicating the issueiii. Plaintiff's interest in convenient/effective reliefiv. Judicial system's interest in efficient resolution
1. Where witnesses, evidence, etc. are
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v. Shared interest in furthering substantive social policies1. Aims of lawsuit2. We want people to be able to sue/recover
when they get screwed over so that there is an incentive to make cars safe
But DPC requires more than fairness and reasonableness Foreseeability is not enough
a. You have to reasonably anticipate being hailed into court Purposeful availment makes it reasonable The petitioners here did not purposefully avail themselves
a. They meet the fair & reasonable testb. But fail minimum contacts
Summary:a. Won on fair and reasonableb. Lost on contactsc. Analogous to plurality opinion in McIntyred. Today, Audi wouldn't be subject to personal jurisdiction in OK
i. They have contacts in state, but that's not where the suit arises from
Ruling: There is no personal jurisdiction over the petitioners because they have no “contacts, ties, or relations” with OK.
Asahi Metal Industry v. Superior Court (1987) (SCOTUS) [foreign component part manufacturer]
There is a motorcycle accident in CA Defendant sues Taiwanese tire company Cheng Shin Cheng Shin files suit against Asahi (Japanese company that made tire
valve) for indemnificationa. Wants them to pay what Cheng Shin owes
"Stream of commerce" - global supply chainsa. You should reasonably assume a part you put in a product will
end up around the worldb. They were making money on the tires sold in CA
O'Connor:a. It's not fair and reasonableb. CA has no interestc. Huge burden on petitionerd. Mere placement of a product into stream of commercee. Established "stream of commerce plus"
i. But only four justices agree, so it's not lawii. Need direct contact
Brennan (concurs):a. Stream of commerce is satisfied (disagree)b. Agrees that it's not fair and reasonable
Stevensa. We all agree it's not fair and reasonable, so we don't need to go
into minimum contacts Outcome: no majority of the Court for ruling on "stream of commerce"
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Ruling: The state court’s exercise of personal jurisdiction over petitioner would be unreasonable and unfair in violation of DPC
J. McIntyre Machinery Ltd. v. Robert Nicastro (2011) (SCOTUS) [machine injures man in NJ]
Nicastro lost four fingers using a machine in NJ; sues in NJ state court Site of accident is in NJ Distributor is in OH Petitioner/manufacturer is in UK The distributor is bankrupt, so Nicastro can't sue them The distributor and manufacturer are completely separate entities
(despite name similarities) Petitioner attends trade shows in Las Vegas, has a U.S. patent, tries to
sell products in U.S., but it doesn't have building, $, etc. in U.S. NJ supreme court uses stream of commerce argument to establish
a. NJ is a huge market!i. Of course they knew it would end up there
ii. Foreseeability 1. Worldwide Volkswagen said this isn't enough
b. What about Ohio?i. It is the intermediary between UK factory and NJ injury
(the distributor)ii. What about the trade shows in NV?
c. Does not agree on forum-by-forum analysis of plurality i. Thinks petitioner met personal availment test
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d. Not really consistent with Bristol-Myers Squibb Summary:
a. Kennedy (plurality)i. State authority --> consent (explicit/implicit)
ii. Forum-by-forumb. Breyer
i. Crazy townc. Ginsburg
i. Not about authority/consentii. It's about fairness to the individual defendant
(fundamental fairness problem)iii. US & state jurisdiction
Ruling: NJ is without jurisdiction (jurisdiction is violation of DPC).a. Stream of commerce + targeting that forum = specific
jurisdiction Marks Rule: concur in judgment on the narrowest of grounds
Something has to get five or more votes to be law What at least five agree on?
a. Think that…i. Targeting (yes)
ii. Regular flow (no)iii. No targeting and no flow (no)
b. Is good/not good for jurisdiction Rules
Targeting is a good grounds No targeting and no flow is not sufficient No opinion on regular flow/no targeting
e. “Effects” and the Internet Remember: we need both subject matter and personal jurisdiction!
Federal fallback 4(k)(2)a. No state has personal jurisdictionb. Has to be a federal claim
Under current system, there can be a situation where no state or federal government has jurisdiction
100 mile bulge is U.S. only Plurality suggests that we pass a federal law to let it be heard in federal
court in same statea. Where it is doesn't make sense (could just cross street from
state court house to federal courthouse)b. WHO matters - state judges vs. federal judges (elected vs.
appointed) Who has jurisdiction is a political question Federal court might be able to boss McIntyre around in a way that NJ
can't No majority decision
a. Stream of commerce is only one of many ways of satisfying minimum contacts
i. Purposefully availed themselves
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Calder v. Jones (1984) (SCOTUS) [libel of actress case] National Enquirer, South (writer), and Calder (editor) sued by Shirley
Jones in CA state courta. All defendants citizens of FL
National Enquirer directed publication to CA South and Calder had contact with CA sources, happenings written
about in CAa. It wasn't written in CA
Ruling: defendants purposefully availed themselves --> yes personal jurisdiction
Walden v. Fiore (2013) (SCOTUS) [gamblers have money held case] Fiore files suit in NV federal district court --> 9th circuit --> SCOTUS Framed as a 14th amendment case, but it's Rule 4 because only reason
federal court has to act like a state NV long-arm goes as far as the Constitution Opinion:
a. Defendant has to create contactsb. Contacts with the STATE, not just the residents
Calder's Theory:a. An element of libel that is read by third partyb. Tort not complete until something happens in CA
Effects:a. Test/jurisdictionb. Effects of your conduct are directed at a state
i. Walden was not attacking state of Nevadaii. Calder was attacking state of California
c. The thing that really matters is sending the papers to California Burger King v. Rudzewicz (1984) (SCOTUS) [franchise case]
Michigan franchise of Burger King (FL corp.) Rudzewicz stops paying franchise $ Burger King serves in FL Contacts of continuing to work with HQ in FL Contract choice of law - FL law (form of contract)
a. But many other states can enforce state law Choice of forum (consent)
a. They ha reasonable foreseeability of possible litigation, purposefully availed themselves
Ruling: District courts exercise of jurisdiction pursuant to FL’s long-arm statute did not violate DPC of 14th amendment
Jackson v. California Newspapers Partnership (2005) (N.D. IL) [newspaper article – no purposeful availment]
California newspaper puts up libel article about Bo Jackson (IL) You can be liable for libel even if you're just repeating something Different from Calder - it's a local news site
a. Didn't aim it at ILb. One subscriber from ILc. Didn't know he lived in ILd. Didn't use IL sources
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No general jurisdiction No specific jurisdiction
a. They aren't trying to get IL people to see the article Ruling: Personal jurisdiction in this cause would offend notions of fair
play and substantial justice. The mere maintenance of an internet website is generally not sufficient to exercise general.
Zippo Test (1997)1. Extreme interactivity2. Passive interactivity 3. Some interactivity Stuff they used to think was interactive is no longer No one puts intellectual weight on Zippo Test Will try to analogize internet world to real world (newspapers, billboards) Effects test will often depend on how court views you
o Are you a bad person in their eyes?o Not an official rule
Young v. New Haven Advocate (2002) (4 th Cir.) [article about prison warden] Young (VA prison warden) sues New Haven Advocate (CT "indie"
newspaper) for libel in publishing story about poor conditions in the prison
Newspaper knew that warden lived in VA & that people in VA would be interested and that harm would fall there
But no personal jurisdiction (personal availment) because they weren't trying to target VA audience
Internet changes very little as far as jurisdiction goesa. Same test as if article was in print
Fraud of Duke President & Other Hypos Email to get bank account Email was contact What if they have no other contacts? No purposeful availment? If you're not careful about where you're intentionally directing conduct,
court will probably still get you with effect tests Description of what makes you a bad guy on the internet isn't clear
a. It's what the plaintiff alleges you did What makes you a bad actor? Oldmexicanbooks.com
a. Illegal under Mexican lawb. Legal under U.S. 1st amendmentc. No way to limit website in the U.S.
f. Actions in Rem; Service Overview
In rem is jurisdiction over a thing (people can be elsewhere)a. Authority over the property, can bind the interests of all the
different people who claim that property In personam is jurisdiction over a person
a. In personam jurisdiction is jurisdiction over a person who’s properly subject to the power of the court. It’s obtained by
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service of process, and the judgment binds that person with respect to all their assets, wherever they might be in the world.
b. We use in personam jurisdiction to bind people to money damage awards, injunctions, status determinations like divorces, and so on
In rem a. in rem jurisdiction is jurisdiction over a thing or piece of
property found within the forum’s territory. Ib. t’s obtained by “seizing” the property or otherwise bringing it
under the court’s control, and the judgment determines the claims of all or some persons to that property.
c. we use in rem jurisdiction to address condemnations or forfeitures, ownership disputes, and damages against absent defendants that are related to their duties of ownership.
Types of In Rem:a. True in rem - good against the world, anyone who might have
interest in propertyb. Quasi in rem - between specific litigants, source of jurisdiction is
still court's possession of propertyi. Type 1 - dispute over property
1. Who has better claim to propertyii. Type 2 - about another claim
1. To settle a debtiii. In practice, differences between these are pretty thin -
just changes notice requirements How do courts get in rem jurisdiction?
a. Rule 4(n) - Permits in rem when:i. There's a federal statute that permits it
1. Service-based, give federal statuteii. Try in personam first, if you can't you can have it seized
per state lawb. DPC of Constitution
Pre- vs. post-judgment attachmenta. Pre-judgment attachment
i. Locks down the property, prohibits transfer (i.e. boot on the car)
ii. For security to prevent the disappearance of assettsb. Post-judgment attachment
i. When defendant refuses to pay, use attachment to reach assets and garnishments
When would you need quasi in rem type 1?a. If the defendant has run off & can't be found
Garnish (post-judgment attachment)a. Used to collect on a judgment that the defendant refuses to payb. is a remedy after you get a judgmentc. SSDI, SSI can't be garnished
Harris v. Balk (1905) (SCOTUS) [in rem debtor chain case] Epstein (MD) --> Balk (NC) --> Harris (NC)
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Balk owes Epstein money and Harris owes Balk money Harris comes to MD, Epstein service him since Harris $ to Balk & Balk
owes money to Epstein Theory is Harris' money really belongs to Epstein Quasi in rem 2 MD said this is a valid claim Balk looks for $, Harris says he already paid Balk doesn't like this & sues in NC court (in personam jurisdiction) Balk argues MD judgment doesn't involve him Dispute is over validity of MD judgment See garnishment notes about
a. Debt follows debtor aroundb. Debt is intangible - makes this case a little more complicate
Iran Case (Victims v. Iran) Plaintiffs brought case against Iran for involvement in terrorist bombing
in Saudi Arabia Case in D.C. - Iran doesn't show up Foreign Sovereign Immunity Act (FSIA) - governs suits against foreign
countrya. If country owes money, then victims can sue company that
owes country money to get their damages Iran doesn't pay judgment. Plaintiffs write to telecom companies to see
if any had done business with Iran Spirit had done business - owed $ to Iranian telecom They had a judgment already (different than Balk)
Shaffer v. Heitner (1977) (SCOTUS) [stock of Greyhound officers’ case] Plaintiff Heitner alleging action
a. Six years old, Dad bringing suit on his behalfb. Owes (1) share of Greyhound stock
Defendants = 28 present or former directors/officers of Greyhound corp.
Derivative complaint - shareholder who's out the $ can get corp. to sue directors and officers
Defendants had violated antitrust laws & cost Greyhound a lot of $ Broke antitrust laws in OR, plaintiff sues in DE Court of Chancery Greyhound Corp. was incorporated in DE, but directors and officers
didn't live therea. There was no specific or general jurisdiction over defendants
So they attach the stock of the defendants DE statute puts situs of stock of all DE corporations in DE Put a stop on the books --> don't let them sell their stock
a. Attaching stock and could seize it to pay for the judgment against them
Quasi in rem type II Court of Chancery allows it --> DE Supreme Court says it's fine -->
SCOTUS "All assertions of state-court jurisdiction over appellants is inconsistent
with that constitution as limitation on state power
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In rem must follow International Shoea. Jurisdiction over thing is really jurisdiction over the people's
interestb. But wasn't in rem to bind people who aren't here?
Claim to property in a jurisdiction is a contact Where the property is at question (suit arises because of property)
a. It will always be fair and reasonable to try case in that jurisdiction because of the state's giant interest
b. Duties of ownership - sue someone because they own the property
You can try to get court to recognize other jurisdiction's judgment or pre-attachment
a. Is what Heitner should have done You can attach a larger (more $) attachment than what damages would
be if that's all they have, when they sell property (attachment), you get your judgment and rest goes to owner
Defendants don't have contacts to DE unless long-arm statute (DE passes this later)
a. Even though company they work for is a DE incorporated corporate
b. Contact (stock in DE) was not cause of action, their conduct had nothing to do with stock
Situs - a situs has to be in the state for in rem jurisdiction If you don't know where your property is, how can you purposefully
avail yourself If you are somewhere, we treat you as if you purposefully availed
yourself Old rules
a. In state serviceb. Citizenship/residences --> general jurisdictionc. Consent
Ruling: All assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.
Burnham v. Superior Court (1990) (SCOUTS) [ex-wife gets ex-husband with service while on vacation]
Ex-wife sues ex-husband for filing divorce petition against agreement in CA
He lives in NJ She serves him while he's on a business trip/in CA to see the kids Scalia
a. Nothing is more traditional than in-state personal service ("traditional notions of fair play & substantial justice)
b. Shaffer was different because it was about the absent defendant
Brennana. Transient presence & all other assertions of personal jurisdiction
had to be analyzed using International Shoe
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b. But it could be served because of minimum contactsc. Scalia vehemently disagrees
White: traditional enough Stevens: we all think it's okay (doesn't really take position) Ruling: in state service is always okay. Jurisdiction based on physical
presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice
United States v. Satan and his Staff (1971) (W.D. Pa.) [prisoner tries to sue Satan]
Plaintiff (prisoner) alleged that Satan and his staff had placed deliberate obstacles in plaintiff’s path and caused his downfall, depriving him on his constitutional rights
Even if he were present in jurisdiction - no instructions to deliver service Can't bring case if you can't serve defendant
Tickle v. Barton (1956) (WV) [tricked into service] Tickle: invited to HS banquet, served process Fraud, force (that is not good) Under traditional rules, no jurisdiction
Grace v. MacArthur (1959) (AK) [service on airplane] Airplane over AK and defendants served It was OK – airspace in AK counts
g. Venue Overview
Deals with where a suit may be filed An independent requirement - In ADDITION to subject matter and
personal jurisdictions:a. Subject matter jurisdiction: state or federal court?
i. Constitutional and statutoryb. Personal jurisdiction: in which state (in federal or state court)
i. 4(k)(1)(A)ii. Constitutional and statutory
c. Venue: in which federal districti. Divisions - you typically have your choice
ii. Purely statutory1. No Constitutional rules
We want plaintiffs to sue somewhere where it's reasonable/convenient for parties, witnesses, evidence, etc.
28 U.S.C. 1391 - general venue statutea. 1391(b): A civil action may be brought in -
i. (1) district where any defendant resides if all defendants are in that state
ii. (2) district where substantial part of the events took place
iii. (3) If there's no proper venue, anywhere where there's personal jurisdiction over a defendant
1. Federal fall back2. If not (b)(1) or (b)(2)
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3. Even if there are personal jurisdiction problemsb. Resident for venue purposes is the domicile established by 28
U.S.C. 1391(c)(1)i. In the district where they're domiciled
c. 1391(c)(2) - entity defendant resides anywhere there is personal jurisdiction
i. Partnerships, labor unions, etc.d. 1391(c)(3) – a defendant who is not a US resident can be sued in
any judicial districte. 1391(d) - corporate defendant residence looks to the contacts
with that districti. If they're both residents of NY, it can be in any district in
that state (NY) where a defendant residesii. So if a corporation is a defendant and also has residence
in DE, you can't sue in DE because both defendants share NY as the state
28 U.S.C. 1400 - specific to patents and copyright Proper venue can be in more than one courthouse/district
a. If all defendants reside in a state, any district where a defendant lives is fine
b. Where a substantial part of the events/omissions leading up to the claim happened
Company also resides where their agent resides Entity
a. Measure personal jurisdiction at the time of filingb. Venue is anywhere there's personal jurisdiction at the time of
filingc. Entity resides where subject to personal jurisdictiond. Corporations measure contacts district by districts
Venue IS waivablea. Party is considered to waive a motion to dismiss for lack of
proper venue unless the motion is made at an appropriate time (usually very early in the case)
Once venue has been set, you have two remedies: transfer or dismissa. 1404: venue is proper but there is a more appropriate federal
district where it should be litigatedi. (a)
1. Transfer for convenience & justice 2. Bring in court where it could have been brought
originally or to a court that the parties consent to
3. Either party can use this/move to transfer4. Kitchen sink/all things considered test
a. Private factorsb. Parties' interestsc. Public factorsd. Judges/courts' interests
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ii. (b): Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district.
iii. (c): A district court may order any civil action to be tried at any place within the division in which it is pending.
b. 1406(a) - wrong courti. Dismiss or transfer where it could have been brought
originally ii. Rule 12(b)(3): can dismiss for bad venue
Transfers don't need to be refiled, dismissals do In theory, you can transfer any time that you'd like, but each time, the
court will be more skeptical Transfers have to be between courts in the same system
a. Within a stateb. Federal court to federal court
The only path from state court to federal court is removal Only path from federal court to state court is remanding If not a resident of the U.S., you can sue them anywhere
a. Ignore them for (b)(1) purposes (venue)b. Venue only, you still need personal jurisdiction
Forum non conveniens (FNC)a. Alternative forum with jurisdictionb. Allow to dismiss a case that's good venuec. Forum is inconvenient
Wrong venue Correct venue
Motions to transfer 28 U.S.C. § 1406 28 U.S.C. § 1404
Motions to dismiss 28 U.S.C. § 1406 & Rule 12(b)(3) Forum non conveniens (common law doctrine)
Uffner v. La Reunion Fancaise (2001) (1 st Cir.) [ship sinks in PR/insurance claim case]
Uffner had ship on the open PR seas it sunk. Insurance company in France, insurance company refuses claim
Uffner sues in District Court of PR substantial part of events took place
PJ is waived because defendant didn’t raise it 1391 Analysis
a. (b)(1): doesn’t work, they definitely do not all reside in the same state
b. (b)(2): two ideas:i. Chain of events
1. In telling the story of what happened, do we have to mention PR?
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2. Would a good, well-pleaded complaint have to mention PR?
ii. Wrongful event1. Is it an event that gives rise to the claim?2. Did the insurance wrong in PR? No, only plaice
it does something wrong was in France3. No substantial part of the events, only events
we care about are where something bad happened that we’re suing over
c. The court chooses the chain of events testi. SCOTUS has never decided
Ruling: The court erred in dismissing the complaint for lack of personal jurisdiction – appellees had already consented. Venue properly lies in Puerto Rico
MacMunn v. Eli Lily Co. (2008) (D.D.C.) [product liability case transferred to MA]
Plaintiff sues in DC state (superior) courta. Defendant moves to remove to federal courtb. Defendant moves to transfer to MA federal court
1441 Removal statute - specific venue statutea. If state had personal jurisdiction, federal court would have
personal jurisdictionb. (There's more to this - see statute)
Courts developed a list of factors to think about when considering a transfer
a. Privatei. Plaintiff's choice
1. Strong(est) factorii. Defendant's choice
iii. Where the claim aroseiv. Convenience of partiesv. Convenience of witnesses
vi. Where the evidence isb. Public
i. What law appliesii. Congestion of courts
iii. Local interest (would a jury be necessary?) In this case…
a. Privatei. DC
ii. MAiii. MAiv. Plaintiff lives in MAv. MA
vi. MAb. Public
i. MAii. DC > MA
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iii. MA > DC Ruling: Both private and public interest factors favor transfer from
D.C. to MAh. Forum Non Conveniens
Recap: Federal courts use this common law doctrine to dismiss a case that was filed in a proper venue in favor of a foreign forum that can provide an adequate remedy to the plaintiff
When deciding whether to grant, federal courts will apply the same private and public interest factors that they use to analyze a 1404 transfer motion
In general, courts are more reluctant to grant FNC dismissal than to grant a motion to transfer under 1404
Piper Aircraft Co. v. Reyno (1981) (SCOTUS) [airplane crash in Scotland] Reyno appointed administratrix of Scottish citizens' estates Reyno sues Piper (manufacturer of engine - PA) and Hartzell (propeller
manufacturer - OH) Ghost defendants being sued in UK (airline, pilot's estate) Why sue in America? In separate suits?
a. America has more favorable lawsb. Might be effective for a jury - don't want to send victims home
with nothing Removal to federal court then transfer to Middle Pa. District
a. Hartzell has no personal jurisdiction in California or Pennsylvania
i. Gets the service quashedii. Gets added back in, in PA
1. Personal jurisdiction because they sold propeller to Piper in PA
Move to dismiss on FNCa. Analysis is almost the same for 1404 transfer with additional
factorsi. Is there another forum
1. Use to transfer when there's good venue because there's somewhere much better
ii. Conditions1. Defendants agree to waive PJ or statute of
limitations in Scotland Factor analysis
a. Private i. Not as strong because plaintiffs are foreign
ii. Scotland (defendant)iii. Scotland (claim)iv. Scotland (evidence)v. Scotland (parties/witnesses)
vi. Ghost defendants are all in UK & being sued there. Full settlement easier in the UK
b. Publici. Cost of doing litigation in UK is less (combine suits)
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ii. Local interest in Scotlandiii. Choice of law…?
CA choice of law rules --> PA law; PA choice of law rules --> Scottish Appeal to 3rd circuit - reverse and remanded
a. Say factor analysis was inappropriateb. FNC dismissal is never appropriate when other law is less
favorable to the plaintiff SCOTUS reversed 3rd circuit
a. Whether law is less favorable tot plaintiff or defendant is not a consideration for FNC dismissal
i. Whole point of FNC is to prevent forum shoppingii. Get the case to where it should be
b. Thinks district curt id an okay analysisc. Is worried about splitting up case between defendants and
ghost defendants i. If ghost defendants aren't there, the book is gonna get
thrown at defendants that are there (perhaps unfairly) Ruling: The possibility of an unfavorable change in law should not, by
itself, bar dismissal.a. The Court of Appeals erred in holding that plaintiffs may defeat
a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs.
b. The Court of Appeals also erred in rejected the District Court’s Gilbert analysis.
Review: forum non conveniens dismissed a case that must be refiled Can be used if forum selection clause is not in the court system the case
is filed ini. Forum Selection
Choice of Law Klaxon v. Stentor Settlement discrepancies for conflicting laws for conflicting laws
a. If you sue in CO for something that happened in NCb. Follow NC speed limit, follow CO paper rules for submission of
claim, but what about other rules where it's not clearc. I.e. in CO passengers can't sue, in NC they can
Choice of law rulea. State lawb. Federal courts use choice of law rules from state they sit in
Van Dusen v. Barrack: 1404 doesn’t' change choice of law Feren case: even if plaintiff brings 1404 motion, choice of law doesn't
change 1404 is a change of court room, not a change of choice of law 1406 does change of choice of law because you shouldn’t' have been
there in the first place FNC dismissal --> new choice of law For Piper:
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a. CA choice of law rules --> PA law; PA choice of law rules --> Scottish
Forum Selection Clause Permissive: you may sue in court x
a. Waiving personal jurisdiction/venue objectionsb. Always enforceable
Mandatory: must sue in court xa. Admiralty cases it's OK to pick a forum if it's not
unreasonable/unfair - new (Brennan)b. Maybe not always enforceablec. Ouster! (old rule)
State law? Federal law?
Negligence and Fault Comparative negligence/fault
a. One side is 33% liable, other is 67% liableb. Split damages accordingly
Contributory negligence/faulta. If you're 1% liable, you can't recover at all
Atlantic Marine Construction Co., Inc. v. U.S. District Court for the Western District of TX (2013)
J. Crew construction was building day care center for Atlantic J. Crew sued Atlantic in Texas, but their contract had a venue/forum
selection clause that stated that suits would be filed in Virginia Denial of 1404: the day care center, evidence, witnesses, etc. are all in
TX Venue is not wrong SCOTUS rules:
a. Venue is OK/established by statutes; venue provision in contract does not overrule the statute
b. Assumes validity (doesn't want to rule on what law makes forum selection clauses OK)
c. Forum selection clauses change the analysisi. Private factors favor selection clause because the
parties agreeii. Only public interests are left to analyze
What about the strong consideration typically given to plaintiff's choice?a. Plaintiff agreed to legal action Virginiab. Where they filed now gets no weightc. The burden is on the party resisting the selection clause
SCOTUS rules that a new choice of law will be required after transfera. Don't want to allow people to grab a "friendly" choice of law, if
they shouldn't be thereb. This is the same reason why choice of law doesn't transfer
under 1406c. This is different than a transfer under 1404, when you keep the
choice of law from the first court in the new court Ruling
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a. Forum-selection clause may be enforced by a motion to transfer under 1404a (dismissal for forum non conveniens also works);
b. When a defendant files a 1404 motion, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. No such factors are present in this case.
IV. Pleadinga. Notice Pleading
Pleading Background/History Trilemma: we can have a system that is:
a. Makes it easy to get into courtb. Makes it easy to process claimsc. Cheap
But you can only pick two!a. Legal systems has always picked cheap, but other two are
important substantive justice b. Our system tends to lean towards "easy to process claims"
i. "Too bad that you can't get into court/afford it"c. But it bounces back between easy to get into court and easy to
process claims Common law pleading: easy to process claims --> forms
a. Designed to get narrowed to a single issueb. One thing is allowed to be argued at once because the jury can’t
handle more Equity courts: allowed people to file a bill (story about what happened)
a. There was only one chancellor for all of Englandb. It took away too long to get through claims
Fact pleading (aka code pleading): Various states in the U.S. started using this (CA still uses it)
a. But it was unclear what constitutes a fact - how specific do you have to be?
i. The courts started to try to determine this FRCP (1938) was an attempt to liberalize civil procedure (make it easier)
a. Rule 1 - just, speedy & inexpensive Notice pleading - giving other side enough notice so they know what
they're being sued fora. Rule 8(a) - file a complaint/claim:
i. Short, plain statement of grounds for court's jurisdiction1. SMJ can be determined sua sponte
ii. Short, plain statement of the claimiii. Demand for relief
b. Claim - facts structured by cause of action (the law giving you the right to sue)
c. Answer - filed by the defendant, it offers their facts/side of the story in relation to the allegations
d. Counterclaim - defendant files claim against plaintiffi. Not a defense
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1. Defense = shield2. Counterclaim = arrow firing back
ii. You can put the counterclaim in your answeriii. Plaintiff must file answer to counterclaim
e. Cross-claim- one defendant files a claim against another defendant
i. Defendant gets a chance to answer the counterclaimf. Third-party claim - defendant can bring in a third-party
i. It has to be related to the original claimii. Insurance companies are common third-parties roped in
(or other parties involved in indemnification) iii. Defendant files a third-party complaint/summons and
third-party files answersg. Reply - answer to the answer
i. Only required/allowed if court orders itii. Normally there is no reply
More FRCPa. Rule 8(b): Can stat alternate/inconsistent/contradictory claimsb. Rule 9(b): Heightened pleading standard for fraud and mistake
i. Fraud: knowing misrepresentation of immaterial fact to induce another to reasonably rely thereon to this detriment
ii. Mistake: if two parties weren’t clear to each otheriii. But knowledge, intent, etc. can be plead generally
c. Rule 11: Reasonable inquiry under the circumstancesi. All papers signed by attorney
ii. Sanctions for frivolous arguments, harassment, or lack of factual investigation
Pleading Motion
Making a claim; not asking for anything, just one side of the story
After the pleading' asking the court or requesting an order
Court doesn't have to rule Court has to rule
Dioguardi Complaint (p. 428) No jurisdictional statement Judge says complaint is fine, but now it wouldn’t be accepted Judges no longer have to match up complaint with legal theory like the
judge in this case did Conley v. Gibson (1957) (SCOTUS) [railroad union case]
Plaintiffs: employees of railroad Defendant: union Claim: union rep was not representing plaintiffs fairly Railroad fired plaintiffs and replaced them with white employees; the
union did nothing to stop this SCOTUS is discussing the sufficiency of the claim
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General rule: reviewing court can affirm on any ground support by the record
The argument is the complaint doesn't state a violation of law/it doesn't set out enough facts
SCOTUS says it does state a violation of law & included a sufficient set of facts
a. There is enough notice in the complaintb. Complaint is justified
Courts read "no set of facts" wrong and apply it to noticea. The language in Conley applied to legality/violation of law
Ruling: It was error for the courts to dismiss the complaint for lack of jurisdiction. The complaint adequately set forth a claim upon which relief could be granted.
Old Form II (Repealed in 2015) Jurisdictional statement (SMJ) Date, place, statement of claim Damages to be recovered
More pleading information No set of facts - about facts consistent with complaint Complaint doesn't have to be consistent
a. You may not know all the facts yetb. Rule (8)(d)(2) - allows you to plead in the alternative
i. Multiple claims of what could have happened ii. Assumption that truth will to come to light in discovery
iii. You have to get jury to believe one of the arguments 1. You can't argue both in front of the jury
c. Rule (8)(d)(3) - alternatives don't have to be consistent Rule 11 - you can't just plead anything
a. (b)(3) - facts alleged have to have evidentiary support or will likely have evidentiary support after discovery
b. Sanctioning for violationc. Lawyer has to verify this after investigation
i. They don't necessarily have to believe client, but must attest that there is some evidence supporting claim
A lot of people plead the date for:a. Notice to other partyb. Statute of limitations
You can plead yourself out of courta. Don't put something in the complaint that makes you
automatically lose Doe v. Smith (2005) (7 th Cir.) [sex tape case]
Doe accuses Smith of illegally videotaping sex and publishing video Sues in Illinois; both parties live in Illinois --> so why does she file in
federal court?a. Federal statute 18 U.S.C. 2511 is the hook that they use to bring
state law claims into federal courtb. But if you lose on the federal matter, all of the other issues have
to be addressed in state court
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c. Wiretapping statute was not passed to protect from invasions of privacy
Each count is a separate cause of action/legal theory You are not obliged to describe legal theory in a complaint But say exactly what happened
a. It's helpful to put in the complaint what law has been violated Elements of 2511 (things that have to be proven)
a. Intentional (paragraph 7)b. Intercept or disclose (paragraphs 7, 11)c. Knowing interception was unlawfuld. Communication (wire, oral, or electronic) - (inferred)e. [interstate commerce] (inferred)
All Doe has to do is show there is a set of facts that make her claim possible
a. We can make normal inferences Court says consent is a defense
a. If there's consent from one party, it's not wiretapping (one-party consent statute)
b. Smith is a party to the recording and consentedc. There's not third-party that's wiretapping
But - a. Doe doesn't need to anticipate the defenseb. She doesn't plead herself out of courtc. Exception is that it could have been done with the purpose of
crime/tort (inferred) & consent no longer applies Ruling: Yes; maybe.
Pre-Twombly Rules Assume that well-pleaded facts are true Draw all reasonable inferences for pleader Are all elements explicitly pleaded or can they be inferred from what is?
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit (2005) (SCOTUS) [SWAT team raids homes]
SWAT raid: custom or practice involved of failing to train of just barging into people’s houses and abusing them in various ways
It would be useful to have a heightened pleading standard, sure, but that’s only for fraud and mistake
a. Can’t amend FRCP through judicial decisions Ruling: A federal court CANNOT apply a “heightened pleading
standard” – more stringent than the usual pleading requirements of Rule 8(a) – in civil rights cases alleging municipal liability under Rev. Stat. 1979, 42 U.S.C. 1983.
b. Twombly and Iqbal Bell Atlantic Corporation v. William Twombly (2007) (SCOTUS) [Baby Bell
conspiracy case] Twombly represents a class action suing Incumbent Local Exchange
Carriers (ILECs) History
a. AT&T is broken up into "Baby Bells" (ILECs)
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b. Back in the day, AT&T would facilitate long-distance servicec. A new law allowed ILECs to compete, as well as competitive
local exchange carriers (CLECs)d. However, Baby Bells owned the wires and competitors
eventually got kicked out of the markete. The claim is that there was some sort of antitrust violation
leading to the infeasibility of competition Twombly sues under Sherman Act § 1
a. Conspiracy in restraint of tradei. "lots of little gorillas joining together"
b. § 2 is differenti. Against monopolization
ii. "one big gorilla"c. The allegation is that Bells are joining together to keep CLECs
outi. There is parallel conduct
1. Which alone is not illegalii. Twombly thinks they are agreeing not to compete
iii. The illegal thing would be if they Bells had made an agreement resulting in the parallel conduct
1. NO violation of statute unless there's an agreement
a. It's still bad for market/general justice if they do it independently, but that's not illegal
Twombly's arguments:a. There is an absence of meaningful competitionb. Parallel conduct has kept CLECs out of the marketc. Claims made on "information and belief"
i. Signals to court that there's no evidentiary support YETii. Rule 11(b)(3) - factual contentions have to have
evidentiary support (or are likely to have evidentiary support after a reasonable opportunity for discovery)
Procedural posturea. SDNY dismisses complaintb. 2nd Circuit Appeals Court says that complaint is well-pleaded
i. There would have to be "no set of facts" that make complaint true for it to not suffice
c. SCOTUS accepts, Justice Souter writes opinion SCOTUS (majority):
a. Plausibility of inferencesi. Can't second-guess facts
ii. Looking at inferences, not just claimsiii. Make PLAUSIBLE inferences not just reasonable ones
b. Conclusory allegationsi. Plead in the complaint that there was an agreement
1. Conclusory allegation - takes it out of the realm of things we don't second guess
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ii. Now, only non-conclusory facts perceived as true (instead of well-pleaded)
iii. Need to plausibly infer there was an agreement, can't infer that based on a result
iv. Assignment example:1. If two students turn in the same, exact right
answers to Sachs' assignment #1, it is not plausible that they were cheating
2. If two students turn in identical essays, it is plausible that they were cheating
Ruling: Plaintiffs failed to nudge claim from conceivable to plausible; complaint should be dismissed. Antitrust conspiracy was not suggested by the facts adduced under either theory of the complaint, which thus fails to state a valid claim.
Changes it makes to pleading rules:a. Assume all non-conclusory facts are trueb. Make all plausible inferencesc. Make sure all elements needed are pleaded
What makes something conclusory? A legal conclusion?
a. i.e. date, place, defendant negligently drove car against plaintiff (legal conclusion of negligence)
b. i.e. date, place, defendant sat down in my car and drove away (legal conclusion of ownership)
c. There are buried legal conclusions in many claimsd. The court does think that the Old Form 9/Repealed Form 11 is
wronge. So legal conclusion isn't REALLY the problem
Fair notice?a. It may be hard to rebut a claim if you don't have more details,
but you're really not in doubt about what you've been accused of
b. Not really the important factor Discovery?
a. Is it too much to let these cases through the doorb. You don't know it's a wild goose chase until discovery has been
donec. Also, not really the important factor
Key: Why do you think defendant broke the law? Is that something you would reasonably know?
Ashcroft v. Iqbal (2009) (SCOTUS) [Post-9/11 treatment of prisoners case] Iqbal is a Pakistani citizen who was undocumented in the U.S. in the
aftermath of 9/11; arrested on immigration charges He sues Ashcroft (Attorney General), Mueller (FBI Director) and various
other government agencies for discrimination during his time in ADMAX SHU
His claims:a. FBI arrested a large number of Arab and/or Muslim men
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b. Ashcroft and Mueller approved policy of restrictive confinementc. They acted because of his religion and national original
The opinion goes through Pre-Twombly rules:a. They don't argue that Iqbal's case is impossible, but they say it's
a "formulaic recitation of the elements"b. Essentially, they don't believe that he can get to his 3 claims
based on claims 1 and 2 (above) Souter (author of Twombly) writes the dissent
a. He agrees that the two (1 and 2) allegations standing alone do not make 3 plausible
b. Disagreement is about whether 3 is conclusory or not (majority says it is, Souter says it’s not)
Rule 9(b)a. Discussed by the majority b. Elevated pleading standard for "fraud or mistake"
i. According to Leatherman, that's it!ii. No necessary elevated pleading standard for other
claimsc. Allowed to plead "malice, intent"
Rule 8a. Majority says Iqbal's claim is conclusory under this standard
Fair notice and discoverya. Ashcroft and Mueller have no doubt about what Iqbal thinks
they did i. There IS fair notice
b. Fair notice is not the problem, so are they worried about the burden of discovery?
c. There could be a concern about intrusive discoveryi. Iqbal hasn't done enough to warrant discovery
Ruling: Respondent’s complaint did not nudge claims of discrimination across the line from conceivable to plausible. Question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process.
Rule 11 It may seem like these cases are about Rule 8, but Rule 11 is the best
place to look You can't allege things with precision if you don't know about it Can't allege in frivolity There must be some evidentiary support in actuality or in theory (to be
uncovered by discovery) Lawyers must certify this after some investigation
New test: Are the allegations well-pleaded?
a. Well pleaded when it is more than mere conclusory statementb. If so, then assume accuracy
Are the well-pleaded allegations plausible? Do they plausibly give rise to an entitlement to relief?
Take-aways
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Subtract out conclusory statements Assume well-pleaded facts as true Draw all plausible inferences for plaintiff Once the reasonable inferences are drawn, are all elements either
pleaded or inferable? Outcome from Iqbal and Twombly:
You need to tell the court what you learned that shows you have evidentiary support
a. Justify evidentiary support in the claimb. This is new and perhaps not totally consistent with the law
It's a little unclear how much smoke we need before we infer fire If you want to make sure you don't get dismissed, put in your Rule 11
finding In re Text Messaging Antitrust Litigation (2010) (7 th Cir.) [conspiracy of text
message prices] Plaintiff is representing a class action Defendants are telecoms Plaintiff is suing in the 7th Circuit appeals court The allegation:
a. The defendants were exchanging price information (not illegal)b. Prices in the market are going up, costs are going down (odd,
but not illegal)c. Defendants are raising prices in the same way at the same time
(odd and hard to explain without an agreement)i. This point is sufficiently eyebrow raising
Ruling: Complaint alleges a conspiracy w/ sufficient plausibility to satisfy pleading standard Twombly
Mehta v. Beaconridge Improvement Association (2011) (7 th Cir.) [housing discrimination case]
Plaintiff is a tenant of Indian descent who sues claiming discrimination District court dismisses claims and it is appealed to the 7th circuit How does Mehta win?
a. He has specific allegations:i. Defendant gave services to while families, but not his
ii. Epithets iii. Specific examples of unfair treatment/discrimination
b. There is a plausible inference given by the allegationsc. They are not conclusory
i. Plaintiff knows what happened to him (he CAN reasonably know)
Ruling: District court too quickly characterized plaintiff’s claims as conclusory. Court properly dismissed 1983 and “willful wanton misconduct claims”. Vacated with regard to dismissal of FHA and Illinois law claims of intentional discrimination and retaliation.
Wrap-up Res ipsa loquitur - the thing speaks for itself
a. If a car runs into me, I can infer negligence just from the fact that the car ran into me
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b. But not everything is clear on it's face, sometimes you need evidence to make the connection
Rule 8 does NOT require the pleading of evidentiary facta. Purpose of the rule was to get away from fact pleadingb. But you can't wait for discovery to have evidentiary support
The cases discussed don't tackle a plausibility issuea. It's really about cutting out conclusory allegationsb. They need something more to support their claims
Results/consequencesa. This doesn't really require plaintiffs and lawyers to do much
more investigation than they used to b. There are some longer, more detailed complaintsc. Probably not a vast decrease in complaint volume
A complaint can be amended pretty extensively as the process goes on You have to show your best arguments pretty early on
a. Twombly didn't do much to show his case You do NOT need to plead your legal theory
Johnson v. City of Shelby (2014) (SCOTUS) [retaliation case] Facts: Petitioners allege that they were fired by city’s board of
alderman, not for deficient performance, but because they brought to light criminal activities of one of the alderman, seeking compensatory relief from the city.
Analysis: Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim.
Ruling: you don't need to plead law, only need to plead facts It's a good idea to plead law (for a successful complaint), but it's not
necessary Default
c. Motion to Dismiss Three ways to respond to a complaint
Answer - respond to the allegation(s) with denial or confirmationa. Rules 7 & 8
Motion - (i.e. make a motion to dismiss)a. Rule 12
Default - don't respond at all a. Rule 55
Rule 12 You have 21 days to respond under Rule 12(a) 12(a)(4): 12 motion stops the clock
a. You get 14 days to respond after the judge rules on the motionb. Wait a week after getting served because you originally get the
21 days to respond. You don't get any "extra" time back Examples of Rule 12 motions:
a. 12(b) motion to dismiss (in whole or in part)i. SMJ
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ii. PJiii. Venueiv. Processv. Service
vi. Failure to state a claimvii. Necessary party
b. 12(e) motion to ask for a more definite statement/clarify the claims
c. 12(f) motion to strike part of the complaint if it is redundant, scandalous, immaterial, or impertinent
i. If something is irrelevant or character defamation Rule 12(d)
a. Matters presented outside of the pleading under 12(b)(6) or 12(c) can be:
i. Excluded by courts, ORii. Converted using Rule 56 for summary judgment
b. If you file a motion to dismiss and include exhibit with affidavit, it is outside of the pleadings
i. Exclude, or ii. Convert to Rule 56 (summary judgment)
1. Limited discovery to determine that both sides have an opportunity
2. Rule 56 motion can happen even before an answer
Rule 12(c) (post-answer)a. Judgment on the pleadingsb. Based on complaint and answer, we can decide what happened
Rule 55 After 21 days and no response from defendant, plaintiff can move for
entry of default under 55(a) Entry of default:
a. Fact that defendant defaulted gets noted on the docket b. "failure is shown by affidavit or otherwise"
i. Plaintiff must show they made appropriate servicec. Court notifies defendant that default has been enteredd. Entry of default is a clerk’s notation on the docket that a party
failed to properly plead or defend; it doesn’t end the case, but just is deemed an admission of certain facts, and can be set aside for good cause.
e. We use entries of default to notify parties of the problem and to give them a chance to cure; we award default judgments because plaintiffs shouldn’t lose their remedies just because the defendants won’t show up.
Default judgmenta. Rule 55(b)b. Someone wins or loses
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c. A default judgment, though, is an actual judgment that resolves the case against the absent party; it awards actual relief and can only be set aside under Rule 60.
Removing from the docketa. Under 55(c), the court can set aside entry of default for good
causei. Aka anything the court thinks is a good reason
ii. It's relatively easy to erase entry of defaultb. Default judgments are harder to set aside
i. You have to use tools from Rule 60, which governs setting aside all judgements
The timeline between entry and default judgment is not set by rules, but it definitely doesn't happen immediately
Virgin Records America, Inc. v. Lacey (2007) (S.D. Ala.) [illegal downloading case]
Plaintiffs are the copyright owners of the song Defendant is a woman who is allegedly downloading and/or distributing
songs illegally Plaintiffs sue over copyright infringement and seek monetary damages
and an injunction against defendant that there is no further downloading/distribution
They have proper service of process - serve the papers to her son (assumed of reasonable age) at her residence
Defendant didn't do anything within the 21 days to respond a. Plaintiffs move for entry of default; clerk enters itb. They are supposed to send her a copy; they didn't but clerk did
i. Rule 5 - any time you file something, you have to send it to all the parties
Plaintiffs go to court for default judgment because they have to figure out if damages and injunction are appropriate
Court enters default judgment against Lacey. See below for considerations judges must make to enter default judgment.
a. They state a claimb. Plaintiffs are only asking for the lowest/minimum amount
dictated by the range in the statutei. The court doesn't have to do an evidentiary hearing
c. Injunction grantedd. Personal jurisdiction: the case is filed in S.D. Alabama, where
Lacey is a resident (presumably domiciled)e. Subject matter jurisdiction: copyright lawf. Service of process to her son is sufficient
Policy purpose of Virgin going after Lacey is to scare other people; hopefully, people will hear about her $6,000 fine and be scared out of illegally downloading/distributing music
Ruling: Complaint states a claim for relief. Motion granted. Request for injunction granted. No evidentiary hearing needed before damages are awarded.
Rule 55(b) – Default Judgment
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Clerksa. Can review if there's no question of damage computation (if the
damages are sum certain)i. Sum certain would be an amount established by statute
or a value supported by evidenceii. It's not disputed
iii. Usually clear cutiv. No capv. Think loans and interest
b. Plaintiff provides information by affidaviti. Affidavit is a sworn statement (under oath and
notarized)ii. Declaration is different ("Under penalty of perjury…")
c. Clerk MUST enter judgmenti. The clerk doesn't have to go through all of the
considerations below (that judges have to follow for judgment)
ii. If they enter a bad judgment, then Rule 60 will have to be the remedy
iii. Rule 55(a) "the clerk must enter the party's default" (ministerial duty)
Judgesa. You have to apply to the court for uncertain monetary damages
or other relief (e.g. injunction)b. Judge doesn't HAVE to give you judgment
i. They' can't refuse to give it to you because they think you're lying. Entry of default functions as an admission to the facts. All well-pleaded facts are true.
1. Allegations regarding amount of damages are not admitted by virtue of default. We don't want to allow people to "write their own ticket"
ii. But the court needs to know a few things:1. Does the complaint state a claim?2. Are the monetary damages appropriate?3. Is the injunction (or other relief sought)
appropriate?4. Is there personal jurisdiction?5. Is there subject matter jurisdiction?6. Was there proper service?
iii. The court does not care about venue1. It's waivable2. But so is personal jurisdiction?
a. Venue is a personal privilege, personal jurisdiction is about legal obligation to appear
b. Therefore, the court cares about personal jurisdiction, not venue
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iv. In general, court also doesn't care about whether there was actual notice of defendant as long as there was proper service of process
So hypothetically, what could Lacey do? She could ask to have default set aside She could ask for an evidentiary hearing for damages
a. Although court should order it sua sponte if necessaryb. Required if the plaintiff is asking for more than required
minimumc. It would have been required if Virgin had asked for more than
the minimum amount of damagesd. If there are uncertain damages, you can have a hearing, EVEN IF
you haven't shown up beforei. Perhaps she didn't show up because it wasn't worth the
money of the lawyer and she was clearly guilty, but she wants to contest higher range of damages
Defendant can't argue actual damages What if Lacey wants to argue that it wasn't her that downloaded the
music?a. The answer is where you contest the factsb. The motion is where you point out the legal problem(s) with a
complaint/the pleadings Rule 12(b) Motion to Dismiss
Types/bases:a. Lack of subject matter jurisdictionb. Lack of personal jurisdictionc. Improper venued. Insufficient process
i. Something wrong with the papersii. Summons is there, but not complaint (or vice versa)
iii. Papers illegible or damagede. Insufficient service of process
i. Something wrong with the way the papers were delivered (method)
f. Failure to state a claim on which relief can be grantedg. Failure to join a party under Rule 19
i. If someone else should be thereii. Will discuss Rule 19 later
You need to make all Rule 12 defenses at the same time in a pre-answera. Can make more than one at the same time (and need to if there
are >1) 12(b)(6) – Failure to state a claim(can we stop now?)
a. Look at the text of the complaint and the lawb. Measure them against each otherc. 12(b)(6) motion considers:
i. Complaintii. Exhibits
1. Rule 10(c) - exhibit is part of the pleading
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2. The pleading is NOT evidence; its an allegation 3. An exhibit is as if you retyped a document or
drew a picture into your pleading4. Videos can be exhibits, but it's similar to as if
you had someone reenact your version of the story
iii. Judicial notice1. Federal Rules of Evidence 2012. Stuff judges can just know3. Example: if defendant borrowed plaintiffs car in
Boston at 9am and arrived in NYC at 11am with scratches on it, we can infer that he was speeding because Boston and NYC are 233 miles apart and he would have to have been doing an average of 116 mph, which is above all U.S. speed limits
iv. Lawd. Three ways
i. Failure to plead enough facts to meet Twombly/Iqbalii. Even if all facts are true, there’s no law permitting
recoveryiii. Plaintiff pleads herself out of court (fatal fact,
establishes affirmative defense) Matos v. Nextran (2009) (D. Virgin Islands) [concrete truck rolls over]
Plaintiffs are truck driver and his wife Defendants are manufacturer and dealer of truck Matos sues on:
1. Negligence2. Warranty of fitness 3. Strict liability4. Warranty of merchantability
The item is fit to be sold5. Loss of consortium
Loss of time Usually a spouse of child of injured person sues for this
(sometimes parent)6. Punitive damages
Defendants respond with (correspondingly):1. They didn't plead there was a duty 12(b)(6)2. Considered with #4, they didn't plead express warranty 12(b)(6)3. Not in the book4. Considered with #2, they didn't plead express warranty 12(b)(6)5. Not in the book6. Didn't plead basis for awarding damages 12(b)(6)
Court rules (correspondingly):1. Plaintiffs did enough to plead negligence2. Side with defendant, but gives plaintiff option to amend the
complaint
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3. Not in the book4. Side with defendant, but gives plaintiff option to amend the
complaint5. Not in the book
Sachs assumes this may be because loss of consortium is not a cause of action
6. Sides with defendant - punitive damages is not a cause of action Defendants request a few motions
o 12(f) to strike language They dislike the phrases "illegal conduct", "all damages", and
"illegal acts" in the complaint Court says that striking is an "extreme and disfavored
measure" to strike Problem with language has to be pretty significant to warrant
a striking Court denies motion
o 12(c) for a more definite statement The defendants claim that the complaint is not clear enough
and they point to the paragraphs incorporated by reference throughout the complaint
Court says that "a complaint need not be a literary gem" and that their claim about incorporating by reference is "wholly deficient and betrays a surprising ignorance of pleading norms"
This motion should only be for something that is so vague and ambiguous that you can't respond
File it before you answer! If you thought it was too vague, how could you have
responded? Court denies motion
Ruling: Allegations sufficient to defeat challenge to count one. Grants motion to count 5. Denies motion to strike words. Incorporation by reference, claim clarity, and defendant naming of plaintiff are all acceptable. Plaintiffs failed to state a breach of express warranty claim.
Recap Pre-answer Motion to Dismiss under 12(b):
a. Basis:i. Subject matter jurisdiction
ii. Personal jurisdictioniii. Venueiv. "bad" processv. "bad" service
vi. Failure to state a claimvii. Failure to join a necessary party
b. Every defense goes in the responsive pleading (the normal standard), but 12(b) are special defenses made by motion
i. Other defenses not made by motion
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12(c): post-answer judgment on the pleadings 12(d): when motion governs facts outside the pleading 12(e): more definite statement
a. Test: so vague or ambiguous that you can’t reasonably prepare a response
12(f): motion to strikea. Unfair prejudiceb. Test: is this prejudicial?
Rules 7 and 8 governs answers If someone wanted to object to venue, they could do it in a couple of
ways:a. 12(b)(3) motion to dismissb. 1406 motionc. In an answer
Keep Definitions/Distinctions Defense - reason why a claim fails/loses (shield) Pleading - your allegation(s) supporting claim/defense
a. Aim is to narrow down the issues Motion - request for a court order
a. Ways to get quick answers from the court about specific defenses
Serve - to give a copy to the other parties File - to give a copy (or original) to court clerk Reply - a responsive pleading, ordered by the court, in response to an
answera. An answer is also a "responsive pleading
Forfeiture - you did not raise the issue when you should havea. If you forfeit an issue, the court will typically not hear the issue
later on, but there are some exceptions Waive - you have permanently given up the right to contest the issue
a. "you took it back out and shot it" Laches - soft version of statute of limitations (equity)
a. "you took too long/slept on your rights" Rules 12(g) and 12(h)
12(h)(1) waiving 12(b)(2)-(5)a. If you failed to include it in first motion or responsive pleading,
you've waived itb. Can't bring it up anyway
12(g)(2) - "omnibus motion rule"a. All available defenses have to go in the first Rule 12 motionb. This is about # of motionc. Exceptions:
i. 12(h)(2)1. Can raise:
a. Failure to state a claimi. This is included because court
wants to avoid going through a
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whole trial for something that's not illegal/legitimate
b. Failure to joini. The court wants all relevant
defendants to be included, even if that means adding them later
ii. More information may come to light
2. In: a. Pleading allowed/ordered under 7(a)b. Motion under 12(c)c. At trial
3. Why these exceptions?a. These exceptions tend to benefit the
court/case as a whole while the others 12(b)(2)-(5) are protections of individual parties
ii. Subject matter jurisdiction 1. can be raised at any time
Rules 12(c) and 12(d) 12(c): motion for judgment on the pleadings
a. Looks at things under 12(b)(6)b. It looks at everything in the pleadings (the complaint, the
answer, exhibits, etc.)c. Any disputed facts are ruled for the non-movant
i. If there's a dispute, the case continuesd. 12(c) is quicker than summary judgment
i. Summary judgment requires some discovery 12(d)
a. Court can exclude information or convert it to a Rule 56 motion with limited discovery
b. Limit on (c) and (b)(6) motionsc. Part of motion is outside of the pleading
Hunter v. Serv-Tech, Inc. (2009) (E.D. La.) [language in answer reserving rights to challenge SMJ or PJ]
Eastern District of Louisiana Defendant = Offshore to other companies Plaintiff = Hunter Facts:
a. Plaintiff filed complaint on 11/19/2007 and did not serve immediately)
b. Defendant files motion to dismiss for bad service on 6/19/2008 i. Foreign company has longer to respond
c. Plaintiff amends complaint and serves agent ("perfect" the service)
d. Defendant files answer to amended complaint and includes personal jurisdiction defense
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e. Original motion to dismiss is now mootf. Defendant moved to dismiss again for lack of personal
jurisdiction, but they had waived personal jurisdiction in their first motion to dismiss
g. The language " expressly reserve all rights to challenge… personal jurisdiction" was not sufficient
Ruling: A defense must actually be raised by motion that requests the Court to dismiss the action on personal jurisdiction grounds, along with any other 12(b)(2)-(5) defenses a party may have.
d. Answering the Complaint Overview
The main purpose is to tell your side of the story, your allegations Admit or deny all parts of the complain Include
a. Rule 12 defensesb. Affirmative defensesc. Counter or cross-claims
Rule 8 (b)(1)(a) - short and plain statement is required
a. It's not clear if this is subject to the Twombly standard for complaints
(b)(2) - fairly respond to the substance (b)(4) - admit the part that's true (b)(5) - any lack of knowledge must be indicated (b)(6) - silence = admission unless response isn't required
a. If the court doesn't order a reply, plaintiff doesn't have to respond to the answer
(c) - affirmative defensesa. Would be a defense even if you did everything in the complaintb. Example: statute of limitations - it doesn't matter if I did it or
not because it was too long agoc. But still required to admit or denyd. You can raise affirmative defenses in an amended answer
before trial or it will be waived; it doesn't necessarily have to be in the first answer
e. Defendant has burden of pleading, production, proof (d)(2) - allows defenses in the alternative
a. Either x happened or y happened Rule 11 – Reasonable Inquiry
Try to figure out what happeneda. Rule(b)(5) does not excuse this
Attorney gets in trouble if reasonable inquiry is not donea. Or other person who signs the pleadingsb. Unless the party lied to the lawyer --> then the lawyer is not
responsible Evidence Law: He who pleads must prove…
Burden Is on the one who loses if:
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Pleading No one mentions x
Production No one introduces evidence
Proof Fact finder isn't sure (whether it meats the standard - preponderance, reasonable doubt, etc.)
e. Pleading Wrap-Up You do not have to plead legal theory
Complaint just has to state a claim on which relief could be granted Example: P sues D
"Date, place, D negligently hit me with car"a. Sufficient claim
What if P has spiked D's drink (D was involuntarily intoxicated)? What if D was an ambassador with immunity?
a. Is the complaint considered insufficient for not ruling these possibilities out?
b. NO! Rule 8(c)i. Defendant has burden or pleading affirmative defenses
ii. Plaintiff doesn't have to consider all possible scenariosiii. The substantive law determines whether an act is
justifiable (for an affirmative defense)1. You HAVE to look to substantive law2. Examples of affirmative defenses in Rule 8 are
usually true, but check the applicable law! You don't have to plead law
Example: law that speeding is per se negligence, but you don't need to plead that someone was traveling 90 mph and that's against the law
Rules of Evidence 301 and 302: presumptions come from state law 28 U.S.C. §1658
(a): statute of limitations = Four years after action accruesa. Unless otherwise noted in law
(b): a private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement concerning the securities law
a. (1): when you discover the facts constitution the violation, you have two years
b. (2): five years after such violation Normal rule: you have to assert affirmative defense in answer
You can raise something in pre-answer anytime it's clear from the face of the complaint that there would be/is an affirmative defense in 12(b)(6)
Good example is statute of limitations Looking at the complaint, you know plaintiff is going to lose
Statute of limitations is waivable, but not in the same way as personal jurisdiction (it's not immediate)
Why would anyone waive it?a. You probably wouldn't want to on purpose, but
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b. It could be a requirement of a forum non conveniens, ORc. You could really want a ruling on the merits
f. Amending Pleadings Summary
History:a. Used to have to do a ton of work for the complaint because if
you had any mistake you could permanently close doorsb. Now: the court lets you make changes to the pleadings in order
to track the actual, emerging facts of the case Three major ways to amend:
a. Matter of courseb. Consent c. Leave of court
Matter of coursea. Quick; problem with complaint is solvedb. You don't need permission c. Rule 15(a)(1)(A): you have 21 days to amend as a matter of
coursed. 15(a)(1)(B): you get 21 days to amend if a motion to dismiss is
filed i. This may seem a little unfair to defendant, but it's an
easy fix1. Better than dismissing
ii. Responsive pleading not required1. Can't amend answer to amended complaint as a
matter of course2. Would have to ask for leave or obtain consent
e. 15(a)(3): After you amend complaint, they get 14 days to file an answer to amended complaint
f. 15(a)(1): you can only amend once as a matter of coursei. Every distinct pleading gets one matter of course
amendmentg. Rule 12(f) motion to strike
i. This is like the plaintiff's 12(b)(6)ii. They can strike insufficient defenses
Leave of courta. 15(a)(2): "the court should freely give leave when justice so
requires"b. Factors to be considered (Forman v. Davis)
i. Bad faith of filerii. Prejudice to the opposing party (undue prejudice)
1. Makes it unfairly difficultiii. Undue delayiv. Repeated failure to cure deficiencies by amendments
previously allowedv. Futility of amendment
1. Doesn't make a difference if you admit or deny
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2. It doesn't change anything - you're going to win regardless of amendment
Beeck v. Aquaslide ‘N’ Dive Corp. (1977) (8 th Cir.) [man injured on waterslide, got manufacturer wrong] Plaintiff is injured on slide believed to be manufactured by defendant Defendant originally admitted they were the manufacturer; they relied on
the inspections of 3 individual insurers Lawyers at play here are the respective insurance companies, not the
individuals It was later discovered that it was a counterfeit slide
o CEO was sent out to prepare for the deposition and realized it was not an Aquaslide slide
Defendant wanted to amend their answer to deny manufacture of the slideo They can't amend as matter of courseo They file a motion for leave to file an amended answer
Include a copy of the amended answer with an explanatory brief
Plaintiff is worried about statute of limitations running out o Wants a single trialo Jury could be more sympathetic to how badly he was injured,
evidence that couldn't be introduced there were two separate trials District court grants leave to amend and agrees to bifurcated trial
o Is it Aquaslide's slide?o If it is their slide, how much should be awarded in damageso Plaintiff appeals to the 8th Circuit
Subsequent events (not included in case book)o Plaintiff came back and argued that the defendant did know about
the fake Aquaslide (or that there was someone out there making fake slides)
o Got jury to agree that defendant should have done something about the fact that there were counterfeit slides out in the world
o No one ever figured out who did make the slide Ruling: Rule 42b separation was not an abuse of discretion, they were
allowed to allow defendant to amend its answer Amendments during and after Trial
Up until now, we've been discussing amendments before trial Rule 15(b)
a. (1)i. Intentional - objection - sustained objection
1. Jury doesn't always disregard objected information
ii. Permit amendment1. Freely if it aid the merits and if there's no undue
prejudice2. A continuance is basically a delay
b. (2): consent - express or implied
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i. Implied consent is when you should have objected ii. It is not implied if you shouldn't have been expected to
object Can amendment pleadings even after judgment to mirror evidence If the other side is claiming stuff that isn't related to pleading, you
should object If the evidence is relevant only to a new theory, you should object Relating back 15(c)
a. Whether we treat amendment as having the date of the initial pleading
b. Only relevant to futility objections (in most cases)c. Exception to the exception to the exceptiond. 15(c)(1): circumstances
i. (A): statute of limitation allows relation backii. (B): same transaction, occurrence
1. If this is satisfied and within 4(m) period, there has to be notice or the party has to have known or should have known that it would be brought up against them
iii. (C): if there's a new defendant (changing the party or name of party)
1. (i) received such notice of the action that it will not be prejudiced in defending on the merits; and
2. (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
e. A or B, but in special case Cf. Theory behind relation-back rule: the original pleading gave
party notice of the conduct, transaction, or occurrence for which she was being sued, so she will not be unfairly surprised by the addition of the new claim/defense based on same events
Bonerb v. Richard J. Foundation (1994) (WDNY) [rehab basketball case] Issue: what same transaction meant Plaintiff is a rehab patient; defendant owns the rehab facility Plaintiff sues defendant in W.D.N.Y for negligence causing personal
injury/negligence maintenance of basketball court Plaintiff changes counsel; new counsel suggests he amends to include
claim of counseling malpracticea. The exercise program that plaintiff was injured in was
mandatoryb. If they didn't require it, he would have never been injured
In the meantime, statute of limitation lapses It's not the same legal theory, but it's some of the same evidence
a. Rule 15(c)(1)(b) says nothing about evidence The question becomes, do the claims arise from the same event? If yes,
then the new claim relates back (piggybacks on old claim) Policy reason behind relating back:
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a. To make sure claims are brought in a timely mannerb. How reliable the evidencec. Foundation already knew they needed to keep all the
information surrounding this eventi. New claim relating to the incident didn't require them
to have had saved more documents/info. Relating back only solves the statute of limitations problem
a. The court still had to decide if leave to amend should be granted
Ruling: There was sufficient notice of the general facts surrounding the occurrence but also alerted defendant to possibility of a claim based on negligence performance of professional duties. No showing of undue delay or bad faith on part of plaintiff.
Rule 15 Summary (a) – before trial
a. matter of courseb. leave of courtc. consent
(b) - during/after trial (c) - relation back
a. take on the date of original complaintb. Statute of Limitations has run outc. (1)
i. (a) - law allows itii. (b) - arises out of the same transaction/occurrence
iii. (c) - change in name or party of the transaction WITHIN Rule 4(m) period (service time limit)
1. Must have known (or should have known) that they would have been the party sued, but for a mistake on part of the plaintiff
2. We have to KNOW that they had notice Krupski v. Costa Crociere (2010) (SCOTUS) [trip on a cruise ship case]
Krupski is injured on a cruise ship and sues the wrong entity (Costa Cruise)
But the company she should have sued had notice, because they have the same lawyer as the company she actually sued
a. They should have known to keep all records surrounding Krupski's injury
Costa Cruise informs her that she should be suing the other entity, but she originally does not take action and/or believe them
a. She knows that there are two distinct companies, but is mistaken about their relation and who is the right entity to sue
She finds out Costa Cruise is right and dismisses claim against them and dues Costa Crociere
Crociere moves to dismiss because statute of limitation runs out The test is what the plaintiff knows
a. Did she deliberately sue the wrong person? Court allows Krupski to continue with complaint
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Courts are uncertain as to whether fictional defendants (i.e. "John Doe") are mistakes for the purposes of 15(c)(1)(c)
At the time of filing you KNOW you are naming the wrong person It is the plaintiff's burden to prove there was notice, there could be evidence
or depositions to aid in figuring this out Ruling: Costa Crociere should have known that plaintiff’s failure to name it
as defendant in her original complaint was due to a mistake concerning the proper party’s identity. Deliberate but mistaken choice does not foreclose a finding that 15(c)(1)(C)(ii) has been satisfied.
V. Parties, Joinder, Class Actionsa. Parties; Basic Joinder
History of Parties and Joinder Common law: strict rules
a. One plaintiff, one defendant, one cause of actionb. Make it easy for a "dumb" juryc. Could only combine if you had a joint interest (i.e. co-owners of
a house suing for trespass) Equity: more liberal
a. Incredibly complex The federal system today is mostly like equity with some limitations
Hypo (referenced throughout course) Parties
a. Ms. Yee is a homeownerb. Protect is the painting companyc. Pemberton is the owner of Protectd. Garza is an employee of Protect
A fire is caused and Ms. Yee wants to bring claims against Protect, Pemberton, and Garza
Joinder of Claims Rule 18 governs (but you still need to consider personal jurisdiction,
subject matter jurisdiction, and venue)a. (a): join as many claims as it has against opposing parties
i. Get it all out of the way at once (matters for settlement)ii. Hypo: Ms. Yee could assert a claim against Pemberton
for another, unrelated caseb. (b): contingent claims
i. Contingent on the original claim --> put it in the same complaint (or amend when you find out about the new claim)
ii. Example: fraudulent conveyance (give/sell assets to someone else to avoid interest being threatened in a legal claim)
Rule 21 governs severance of claimsa. Making a claim not part of a caseb. Add or drop a party
Rule 42 governs consolidation or bifurcation of casesa. Whether things are covered in the same sort of proceedings (i.e.
discovery, trial, etc.)
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b. Consolidate: different cases, same proceedingsc. Bifurcate: same cases, different proceedings
Plaintiffs are the master of their claim and get to (generally) decide who plaintiffs and defendants are
Joinder happens when you file a complaint with multiple claims against parties
a. No special motion necessary Joinder of Parties
Rule 17a. (a)
i. (1): action must be made by person who has the actual interest
ii. (3): don't dismiss action if not it's brought by someone else
1. There's a certain amount of time for the real party to ratify (approve), join (add on), or substitute (switch out)
b. (b)i. (1): capacity to sue or be sued goes by the law of their
domicile1. [NOT ON EXAM: capacity for suit is at the center
of many historical disputesa. Slaves - owners could sue slave, but
slave had no recourseb. Women (coverture)
i. Society viewed husband and wife as one person, with all rights being transferred to the man
ii. Fem covert - married women had fewer civil rights, couldn't enter contracts, own property, sue people or be sued
iii. You want to be able to be sued --> can't get loan if you can't be sued!
iv. Single women had different rights]
ii. (2): corporations can be sued under the law of its state of incorporation
iii. (3): if "other" type of entity, go by the law of the state where the court is
1. Unincorporated associations can sue or be sued for federal interests under their common name
2. Exception for substantive rights existing under US Constitution or laws
3. Other parties with no capacity under state law to sue or be sued
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c. (c): minor or incompetent peoplei. Guardian can sue on their behalf
ii. Hypo: can Ms. Yee's minor daughter sue herself? Depends on state law where she's domiciled
d. (d): public officersi. Someone who sues or who is sued in an official capacity
may be designated by official title rather than by name1. Court can order that the name be added
ii. Individual vs. official capacity is determined by the relief that is sought
iii. Hypo: if Yee's house sets fire, they call fire department and Fire Marshal Bill comes. He hits her with his fire truck. If she sues him it's in his capacity as a public officer, not as an individual (which would be to go after what's in his own pockets)
Substitution of Parties Rule 25
a. deathb. incompetencyc. transfer of interest d. public officer
Hypo: a. Mr. Yee (Ms. Yee's husband) wants to sue for loss of consortiumb. Mr. Worzek (neighbor) wants to sue for damage to his own
propertyc. Can Mr. Yee, Worzek and Ms. Yee file the same suit?
i. Yes! Rule 19: Who HAS to be included in the complaint [mandatory] Rule 20 (who can be named in the complaint) [permissive]
a. (a)i. (1): plaintiffs
1. Can join same claim if there is a same transaction or series of transactions AND a common question of law or fact for all plaintiffs
ii. (2): defendants1. Can join if there is a same transaction or series
of transactions AND a common question of law or fact for all defendants
Hypo:a. If Ms. Yee wants to sue Fire Marshal Bill, can she add him back
in?b. Scenario 1: State law makes tortfeasor liable for follow-on
injuriesi. Not true for loss of consortium in this jurisdiction
ii. All of the plaintiffs can sue togetheriii. Can all of the defendants be sued together?
1. Is there a common question of law or fact that they all care about
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2. Bill doesn't care about who started the fire3. How badly did the fire truck hurt Ms. Yee? - Yes!
a. All of them care about this because of the follow-on liability
Rule 20: PERMISSIVE joinder of partiesa. What you CAN do
Rule 21: misjoinder and nonjoindera. Don't dismiss for "misjoinder"b. Court can join or sever cases
Hohlbein v. Heritage Mutual Insurance Co. (1985) (ED Wisconsin) [employer lies to potential hires]
Four plaintiffs all interviewed and hired by defendant over the span of 2.5 years
There were various misrepresentations about the scope, $, etc. of their jobs
a. Common to all: Heritage did not disclose that there would be a probationary period
Defendant wants to sever the case for each of the plaintiffs into separate claims
a. They are worried about prejudice against them that could occur in a trial with all four
Rule 20(a)(1): joinder of plaintiffsa. Plaintiffs arguing that it's the same transaction/series;
defendant arguing that it's notb. Plaintiffs' claim is that there is a pattern of practicec. Judge will have to peak at the merits - is this really the same
series of transactions?i. Practical judgment - does it make sense to have
everyone here? Ruling: Severance would be unjustified and unwise
a. Court agrees with plaintiffs; this really is the same series and are persuaded there is a practice
Rule 13: Counter and Crossclaims Counter: "right back at you"
a. Claim against plaintiffb. Mandatory v. permissivec. Mandatory:
i. (a) Arises out of transaction or occurrence that is subject of opposing party's claim
ii. (b) Does not require adding a party who the court does not have jurisdiction over
1. It doesn't make sense to have it be mandatory AND "if possible"
iii. At the time of service - can't arise lateriv. If you don't bring a mandatory claim, you waive it
Rule 13(a)a. Mandatory counterclaimsb. Same transaction tests
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i. Are the issues of fact and law raised in the claim and the counterclaim largely the same?
ii. Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim rule?
iii. Will substantially the same evidence support or refute the claim as well as the counterclaim?
iv. Is there a logical relationship between the claim and the counterclaim?
c. Don't have to add a party that court doesn't have jurisdiction over
d. Compulsory counterclaims have to involve the same transaction or occurrence as the first claim. We make you raise them to avoid extra suits between the same parties for the same events; this way the court deals with everything relating to that transaction at once.
Rule 13(b)a. Any other claim is permissive b. Why would you bring in a claim that has nothing to do with the
transaction?i. Flip side of Rule 18 for plaintiffs
ii. Judicial efficiency! Settle it all at oncec. Any other counterclaims are just permissive. We let you bring
them if you want, because you’ve already been dragged into court by that person anyway, so we might as well hear your claims against them while we’re at it.
Cross Claim (illustrated by Hypo): a. Protect wants to file a crossclaim against Garza (13(g))
i. Has to be a co-party (same side of the case)ii. Has to be the same transaction
iii. Not mandatory - all crossclaims are permissiveiv. Protect should make a crossclaim in the answer to the
complaintv. Garza needs to file answer to complain and answer to
crossclaimb. If Protect withholds pay for the day and Garza wants to make a
claim against themi. It's a mandatory counterclaim to the crossclaim
1. He HAS to do it unless he wants to waive the claim
ii. He needs to put it in his answer to the crossclaimiii. Protect files answer to the counterclaimiv. It would have been a permissive crossclaim if Protect
hadn't shot arrows at him first Preclusion
a. What happens when you lose one lawsuit, what happens in a future case?
b. All of this stuff matters most for what happens in the future
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Joining Parties Rule 13(h)
a. Can join additional parties in a crossclaim or counterclaim using Rule 19 or 20
Hypo:a. Protect makes crossclaim against Garza
i. Smith (Garza's coworker) was distracting Garza at the time of the accident
ii. Protect wants to bring in Smith as part of their crossclaim and name Smith as a defendants
iii. Rule 13(h) and 201. It arises out of the same occurrence2. But you need a common question of law or fact
a. Smith cares about whether Garza is liable too! It checks out!
b. Protect has a different kind of claimi. Has insurance company (Mutual Insurance Co.)
ii. Under only Rule 13, they can't bring cross or counterclaim against Mutual
1. They aren't a co-defendant or opposing partyiii. They can implead!
Impleading Rule 14 Impleader
a. When a party is liable to you for all or part of the claim against you
b. Serve them (with standard service under Rule 4)i. Summons
ii. Third-party complaint Hypo: What could Mutual do?
a. Fight Protect (no contract or the contract doesn't cover what Protect says it does)
b. (a)(2)(C): may try to help Protect out i. If it's not Protect's fault, then Mutual also doesn't have
to payc. Protect here is a third-party plaintiff, Mutual is a third-party
defendant Rule 14(a)(2)(d): claims against the original plaintiff?
a. Third-party defendant can bring that in too Hypo:
a. If Mutual has reinsurance agreement with Swiss, they can also bring them in under Rule 14
i. This process can just keep going b. If Yee files an amendment, it sets off a whole new set of
answers (with maybe new cross or counterclaimsc. This is all separate from the discovery calendar
i. Ms. Yee could be doing her discovery while the defendants all fire their respective arrows
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Impleader under Rule 14 lets the respondent to a claim bring in a third party who’s liable to that respondent for some part of the underlying claim. This lets the court settle all issues related to that claim at once, and it saves a second lawsuit for contribution or indemnity. It also lets the third-party defendant (e.g., an insurer) avoid liability in the first instance by helping to fight off the original claimant.
you have claims against parties that you implead Erkins v. Case Power and Equipment (1995) (DNJ) [backhoe case]
Erkins rode in a back hoe and died on a construction site; his widow is suing just the manufacturer of the back hoe (Case)
Case wants to bring in Fitzpatrick and ECRACOM to get contribution o If you have joint tortfeasors, you can get money from either
defendanto Contribution for their shareo Plaintiff will get 100% of damages
It doesn't matter if one defendant is totally bankrupt The other party could have to cover 100%
Indemnity: someone should reimburse you, but they aren't liable Rule 14: Their liability is conditional/contingent on ours Fitzpatrick and ECRACOM argued that because Erkins is suing on a theory
of product liability (a different theory of recovery than what they'd be liable under) and they shouldn't be joined
The court rules that the theory of liability doesn't have to be the same Hypo: Garza wants to argue that he wasn't there, it was actually Gold, a
person who looks a lot like himo Garza can't bring a counter or crossclaim against a nonpartyo He can make a defense that it wasn't himo Gold is NOT liable to Garza - they aren't joint tortfeasors
There is no Rule 14 route to bringing in alternative defendantso All it does it allow you to bring in people who owe you money if you
really are liable What if jury thinks there was nothing wrong with the backhoe?
o Instead they think ECRACOM is responsibleo If Case isn't liable, then others brought in under Rule 14 disappearo Erkins should have sued ECRACOM and Fitzpatrick directlyo As is, if Case isn't found liable, statute of limitations could run out
and Erkins has no remedy Hypo: Multiple Choice with Garza's coworker Novotny
o Protect denied Garza money the day of the fireo Protect denied Garza money another dayo Protect is responsible for injury to Garza in a sheep stampededo Novotny injured Garzao Novotny defamed Garza to Protect about the accidento If Garza could bring only ONE claim, he'd bring claim A (crossclaim)
He should choose A because it arises out of the same transaction
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On their own, B,C,D,E could not get in because Novotny's not a party and B and C are not the same transaction
o If he could only bring TWO claims: he could pick A and B OR C If Garza shoots an arrow at Protect, Rule 18 lets him bring any
claims he has against Protect So he could bring in B or C
Novotny's action gave rise to Protect not giving Garza wages Rule 13(h): you can add parties under Rule 20
It's the same transaction The question of law or fact that Novotny and Protect
both care about? Yes! Whether Garza is liable or not
So he could get claim in?o How could he get Claim D in?
If Garza shot arrow at Novotny, he can shoot as many as he wants (The defendant's version of Rule 18)
o Which claims MUST Garza raise to avoid waiver None! None are mandatory because none of these people have
made claims against him Crossclaims aren't mandatory
o D piggybacks off E, E piggybacks on Ao A is necessary for E, E is necessary for Do If Protect makes a crossclaim against Garza, then he MUST assert A
in his answer He would be allowed to bring in claims B and C as permissive
under 13(b)o Garza can add Novotny in E (13(h)/20)o Once someone shoots an arrow against you, much more can
happen Ruling: NJ’s contribution scheme permits defendant Case, if found to be
strictly liable to plaintiff, to institute a separate action for contribution against Fitzpatrick and ECRACOM based on their alleged negligence.
b. Complex Joinder Rule 19 (Mandatory)
When you have to join (required joinder of necessary parties) Required Joinder
a. (a) - required partiesi. We need the party for relief
ii. Unfair if the party isn't there/the party claims an interest
1. Can impede their interest2. Or lead to double/inconsistent
rulings/obligations If there's a required party and we can't make them come in, the court
has to decide if it should dismiss the case. Factors for consideration include:
a. If there would be prejudice to absent party or existing parties
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b. Ability to protect from/lessen prejudicec. If there could be an adequate judgmentd. If there is an alternative venue
Hypo on Page 648:a. Wu buys building lot from Claudel and Polanskyb. Wu argues they misrepresented the building and wants his
money backc. He sues Claudel only and wants rescission of the saled. 19(a)(1)(A)
i. Can the court give complete relief from existing parties?ii. Can't give Wu remedy he wants without Polansky
Andean v. Secretary of the U.S. Army [ex-wife sues for husband’s pension] Ex-wife sues Army for portion of her ex-husbands pension She could get complete relief from the Army
a. (a)(1)(A) would be okay But her ex-husband is a non-party who has interest
a. The suit would impede his interest Or perhaps the Army would have to pay twice (inconsistent or
duplicative obligations) (a)(1)(B) wouldn't work A: can plaintiff get what they need? B: is it unfair to existing parties or a party who is not there? How will this get brought to the court's attention?
a. Rule 12(b)(7) motionb. Raise it in an answerc. Raise it a trial
Court must order that they are made a plaintiff or order plaintiff to write new complaint with additional defendant(s)
What if adding another defendant destroys complete diversity or there's no personal jurisdiction over new defendant?
a. Rule 19(b) Torrington Co. v. Yost (1991) (DSC) [trade secret case]
Defendant is Yost, old employee of plaintiff Torrington Plaintiff believes defendant disclosed trade secrets to his current
employer INA Both plaintiff and INA make bearings Plaintiff want injunction that stops defendant from working at INA for 18
months in a specific capacity and monetary damages Defendant moves to get INA involved
o Yost could motion 12(b)(7) Court COULD order that Yost pay the money and stop working INA has interest because they have an employee contract with Yost
o If he stopped working, they could sue him INA is required and ought to be there is possible But it's not possible because INA would destroy diversity jurisdiction 19(b) analysis to determine if case should move on without INA
o Prejudice to existing parties or absent party?o What extent prejudice could be lessened or avoided?
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o Would judgment in person's absence be adequate?o If we have to kick plaintiff out, do they have an adequate,
alternative remedy? Torrington analysis:
o There's prejudice to INA, danger to Yost for inconsistent obligationso Court says they couldn't really lessen prejudiceo Plaintiff could get money, but judgment wouldn't be adequate
because INA would still have and operate trade secretso They could go to state court
The court could agree to dismiss only if INA and defendant agree to waive statute of limitations in state court
Ruling: If Torrington wishes to continue with the suit, it must do so in state court and join INA. INA is an indispensable party whose joinder would deny the court of diversity jurisdiction.
Hypo: is Gold a necessary party under Rule 19?o Complete relief to plaintiff could be granted (even if it's from the
"wrong" person)o No non-party claim interests in actiono Can't use Rule 19 to rope in an alternative defendanto Could Garza join Gold as a party under Rule 20?
Same transaction Same question of law/fact But it's the person filing the complaint that is the master Garza can't join Gold
o #1 Suppose Yee sues Garza Garza says he didn't do it, it was Gold Garza subpoenas Gold and Gold says on stand that he didn't
do it Jury doesn't think Garza did it and dismisses the case
o #2 Suppose Yee sues Gold Gold is not bound by first case because he was not a party
(just a witness) Summary – When MUST a party we joined
Are they a required party?a. Cannot grant complete relief without themb. Party claims an interest
Is joinder feasible?a. Party may not be subject to PJb. Diversity case: party may ruin diversity/SMJc. May make venue improper
Dismiss or continue?a. Prejudice to existing parties or absent party?b. What extent prejudice could be lessened or avoided?c. Would judgment in person's absence be adequate?d. If we have to kick plaintiff out, do they have an adequate,
alternative remedy? Rule 24 – Intervention
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Voluntary When you want to be a party in the lawsuit Has to be on a timely motion. There's no rule for this, but a four-factor
test used by courts:a. State of suitb. Purpose of interveningc. When you knew about the question/fact that's leading you to
intervened. Prejudice to existing parties
Basically, do you have a really good reason to come in? Is it fair to the other guy? Fair in general?
(a) – righta. Court has to let you in if you’re timely and qualifyb. 1 - statute gives rightc. 2 - interest that the other parties won't protect
i. Intervention will probably not be allowed if interest is adequately protected by existing parties
(b) - permissivea. You have to show court why you should be allowedb. (1) timely, AND
i. (a) conditional statutory rightii. (b) common question of law or fact
c. (2) government office or agency & constitutional issue i. Public policy is a common reason for §2403 intervention
d. (3) court considers unduly delay or prejudice Intervention makes you a party
a. Can appeal, ask for relief, block settlement, etc.b. An amicus brief is an alternative if you just want court to listen
to you but you don't want to be a partyi. Can't appeal, no relief, etc.
Interpleader Allows a party facing conflicting claims to the same property or fund to
implead the various claimants to obtain a judgment of ownership that will bind all claimants
Statutory interpleader 1335 - 2 or more claimants are of diverse citizenship
Rule 22: a. (1) By a Plaintiff. Persons with claims that may expose a plaintiff
to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:
i. (A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or
ii. (B) the plaintiff denies liability in whole or in part to any or all of the claimants.
b. (2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.
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Interpleader is designed to bring in multiple defendants with claims to the same property. It can be done under Rule 22 or by statute—depending on the nature of the diversity between the parties, and whether the plaintiff needs expanded personal jurisdiction. Again, the point is to relax joinder rules to settle the case all at once; the holder of the property can bring it into courtand have peace, while the various claimants fight it out among themselves.
you interplead parties that have claims against you Why would someone want rule interpleader v. statutory interpleader?
a. Statutory has several advantages:i. Right to file based on minimal diversity
ii. Low ($500) amount-in-controversy requirementiii. Authority to exercise jurisdiction over claimants found
anywhere in the USiv. Nationwide PJ
Steps of interpleader:a. P determined to be stakeholder who is subject to conflicting
claims to that propertyb. Plaintiff pays policy to court and is dismissedc. Claimants litigate their claims to the staked. Resulting judgment determines ownership, bound by judgment
Book hypo:a. Zobel leaves life insurance policy to his "wife." At the time of
signing, his wife was Belle. At time of death, his wife was Marinab. 19a1b - Belle is required party because she would care if
insurance company paid out Marian, but she doesn't have personal jurisdiction in CA
i. There would be prejudice without Belleii. No great protective option
iii. No adequate judgmentiv. Could maybe dismiss for FNC, but can't transfer to DE
SMJ PJ Venue Rule 19 Who fights
Without interpleader 1331??, complete diversity, > $75k
4k1A (by states)
1391 :( Holder and each claimant
Claimants are minimally diverse (at least one set of parties not from the same state)
1335, minimal diversity, > $500
2361, nationwide, Rule 4k1c
1397, any claimant resides (+ 1391 venue)
Don't have to worry about it, all feasible to be joined
1335, claimants
Claimants from same state (holder is diverse from them)
1332, complete diversity, > $75K
4k1A, sue them in CA, where they're all fine
1391, can sue in any district where claimant lives
All can be brought in
Rule 22, claimants
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Claimants from same state (holder is from same state too)
That state's court (fed. Courts don't need to be involved)
Fine, everyone's from there
Fine, everyone's from there
Fine, everyone's from there
Determined by state law
Republic of Philippines v. Pimentel (2008) (SCOTUS) [human rights
violation/money wrapped up] Pimentel class representing human rights violation victims sue
Ferdinand Marcos (dead/ex-president of Philippines) Merrill Lynch files interpleader
a. They have a broken account for Arelma (from Marcos) Defendants
a. Imelda Marcos (widow)b. Pimentelc. Republic of Philippines d. Presidential Commission on Good Governancee. Arelmaf. Philippine national bank
Separate litigation is going on in the Philippines Under Rule 19, Republic & Commission are required parties
a. If court gives Pimentel class $, they could never get it backb. It is not feasible to join them
i. They invoke sovereign immunity (sovereign can't be hauled into court without consent)
ii. Foreign Sovereign Immunity Act Can they keep going without the Philippines
a. There's prejudice - dignity issues/$ allocationb. No way to actually give $ to Pimentel class AND protect
Philippinesc. Not an adequate judgmentd. Alternative?
Merrill Lynch wants to reduce number of potential claimsa. They are left without a judgmentb. Rule 19(b) protects them from multiple individual claims
(Philippines are still needed) This comes through the 9th circuit from the district of Hawaii
a. HI judge told them too - probs. corrupt guy Ruling: Sovereign immunity > Pimentel class without a way to recover
and Merrill Lynch without a judgment (value judgment). Lower courts gave insufficient weight to immunity
c. Supplemental Jurisdiction Summary
There's tension between joinder & SMJ, but we still need SMJ to join! Why have it?
a. Really want to deal with whole case as a unit Two tests
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a. Article III (Gibbs)b. Statute (1367)
Hypo: Sachs goes into cereal business with "Lucky Charmz"a. General Mills (NC) sues Sachs (NC) under Lanhan Act & NC
trademarkb. Rule 18 - as many claims as you have! Assumes jurisdictionc. Sachs has counterclaim: badger in his box of Cherrios (tort in
NC)i. Rule 13 - have to bring all claims from same transaction
ii. Rule 13 (b) United Mine Workers v. Gibbs (1966) (SCOTUS) [mine manager loses job over
protest] Respondent Gibbs; petitioner United Mine Workers of America (UMV) Gibbs sues in federal court (E.D. Tenn.)
a. TN tort lawb. Federal claim
Unions are incorporated where all their members area. At least one is from TN, Gibbs is also from TN --> NO DIVERSITY
Claims arise under same occurrence; it's efficient to hear all claims in the same case
Options?a. File separately (state and federal court)b. File both in state court
But that would be bad! Federal courts would miss out on a lot of federal question issues
Article IIIa. "Case or controversy"b. If state claim is part of one case or controversy with the claim
with federal jurisdictionc. Does it derive from a "common nucleus of operative fact"
i. Gibbs all arises out of the same stuff/ball of wax Sachs is not clear that Gibbs is correct - changes to come in court
future? *When can they not hear a state claim?
a. When state claim predominates (sensitive or important issue of state law)
b. Likelihood of jury confusionc. Federal claim dropped out earlyd. Surer footed readings of state lawe. (disagreement in courts on whether this list is illustrative or
exhaustive - rule leaves room for other circumstances) Claim of federal jurisdiction HAS to be non-frivolous Ruling: State claim could be heard with related federal claim in federal
court Take away on supplemental jurisdiction:
a. Discretionaryb. Consider judicial economy, convenience and fairnessc. Common nucleus of operative fact
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d. Federal claim not minore. Exceptions
i. Federal claim drops earlyii. State issues predominate
iii. Surer footed reading of stateiv. Likelihood of jury confusion
Owen Equipment & Erection Co. v. Kroger (1978) (SCOTUS) [man electrocuted by crane]
Kroger's widow sues OPPD (electric company) OPPD invokes Rule 14 impleader against Owen (owner and operated of
crane) Kroger was walking/minding his own business when he was
electrocuted by crane coming too close to high-tension electric boxes Kroger (Iowa) wants to sue Owen herself (Nebraska incorporation, PPB
in Iowa)/OPPD is Nebraska)a. She doesn't want to lose Owen if she loses OPPD
Owen was in Nebraska, but due to river avulsion, it is now in Iowaa. Avulsion - noticeable erosion changes, boundaries changeb. Accretion - unnoticeable erosion change, not boundary
changing in law No diversity and no statute Kroger adds Owen to case after OPPD uses Rule 14 contribution to rope
in Owen If OPPD wins, claim against Owen disappears, so Kroger wants to add
him a. Needs to use Rule 15 to amend complaint and Rule 20
(permissive joinder)b. 20(a)(2) - checks out; it arises under same transactionc. BUT there's a jurisdictional problem
i. Kroger and Owen are not diverse1. Principal place of business is now in Iowa due to
avulsion Gibbs would allow this
a. You can hook this on to federal claim against OPPD - nucleus of fact
Kroger loses because there's no statute (they "forgot" that problem in Gibbs)
a. You need a statute to say it's okay Congress responds to this and like cases with 28 U.S.C. 1367
a. Supplemental jurisdictioni. Over related claims in the action with such original
jurisdiction b. Kroger's claim against Owen would not be okay under 1367(b)c. OPPD's claim against Owner would be okay under 1367
1367(a) Gibbsa. If you have same case or controversy, then federal jurisdiction
over the original thing supplemental jurisdiction over the state claim
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b. Think of federal claim as a big hook 1367(b): exception
a. Not for:i. Old plaintiffs against new parties brought in via Rule 14,
19, 20, or 24, OR ii. New plaintiffs brought in through 19 or 24
b. IF it destroys diversity 1367(c)
a. Discretion not to exercise jurisdiction if:i. State law is novel or complex
ii. State law is substantially predominateiii. If original issues are dismissed (stuff that gives the
federal jurisdiction, ORiv. Other compelling reasons
b. Essentially an import of the Gibbs factorsi. If you satisfy 1367, you satisfy Gibbs
What would Kroger be like under 1367? (contribution)a. (a) checks out - original jurisdiction and related claimb. (b) - not an old plaintiff, not a new plaintiff under 19 or 24
i. Hits problem under here, can't bring itc. We're worried about end-run by plaintiffs (not defendants)
i. Not worried about people who didn't want to be in court
ii. Don't want plaintiff to bring case in federal court and then later substitute party they wanted to sue all along but couldn’t bring to federal court originally late in the game
d. (c) checks out - no reason why state law issue is more novel/complex/dominate
Ruling: District court had no power to entertain lawsuit against third-party defendant since diversity jurisdiction was lacking.
Hypo P1 (PA) and P2 (PA) sue D (D) together
a. P1 sues for $80K, P2 sues for $2b. They can't aggregate across parties, would lose for federal
jurisdiction 1367 analysis
a. (a): first claim is fine under 1332, and this is the same caseb. (b): it's not an old plaintiff or new plaintiff under 19 or 24c. It doesn't destroy diversity
But if P2 was from DEa. It doesn't fit 1367b. No diversity, no claim that enjoys federal jurisdiction, no one
has complete diversityi. If you started with only P1, still couldn’t add P2 because
it would destroy diversity Can hook amount-in-controversy deficient claims through 1367 if
original claim is >$75k
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1367 doesn’t require sequential adding, supplemental jurisdiction can happen at time of filing (in first hypo P1 and P2 could file together)
Exxon Mobil Corp. v. Allapattah Services, Inc. (2006) (SCOTUS) [amount-in- controversy for supplemental jurisdiction]
Facts: Exxon dealers filed a class action against Exxon (1332(a)). Jury ruled for dealers. Court certified supplemental jurisdiction. 11th circuit upheld SCOTUS
Ruling: Where elements of jurisdiction are present and at least one named plaintiff satisfies amount in controversy requirement, 1367 authorizes supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or controversy (even if they are below $75K)
d. Class Actions Overview
Good if individual claims aren't feasiblea. Lots of small dollar claims, if they bring it all at once they have a
better chance of being litigated and holding companies accountable
Book hypo: Haynes and Fearsa. Haynes has washing machine, it rusts, and he wants $675 ($525
machine replacement, $150 for damaged clothes)i. But $675 isn't worth litigating (lawyers are expensive)
b. But there may be more like Haynes - collective damages could be worthwhile
c. Without class action, government/regulatory agencies could act, but individual suits wouldn't work
d. With class action, Haynes will join with others who were harmed ("Haynes on behalf of all others similarly situated v. Fears")
Putative class actiona. Judge hasn't certified itb. Becomes real class action after certification
Rule 23a. (a) and (b) provide standards for when you should certifyb. (c) governs certification process
What relief could court award?a. Injunctive (stop making dangerous part of washing machine)b. Monetary damages
Once court has ruled, members of the class are bound and cannot sue on issue again
a. Preclusion rules to be discussed later in course Hansberry v. Lee (1940) (SCOTUS) [racist neighborhood case]
Tied back to another case Burke v. Kleimana. Restrictive covenant in Chicago neighborhood that homeowners
couldn't rent or sell to black peopleb. Alleged that 95% of homeowners agreed to it
i. State law - if 95% of homeowners agree --> run with the land
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1. Covenant is good even when land is sold2. It stays as a permanent condition
ii. Parties just stipulated (not a finding of fact)1. Speculation that Burke and Kleiman are in
cahoots Now Mr. Burke sells land to Hansberry (black man) and Lee (white
neighbor) sues to evict Hansberrya. Hansberry say it wasn't actually 95%
Class actions are exception to Pennoyer Trial court says stipulation was fraudulent but res judicata can't
relitigate IL Supreme Court says that it was a class, everyone is bound SCOTUS says that Pennoyer due process is necessary, some members
were not represented by Burke in the first casea. Failure of due process when there wasn't fair representation of
absent parties Why would we allow class actions to bind anyone?
a. It's close enough - everyone wants same thing (no divergence of interest)
What do we need? Court says:a. Common interest (future typicality)b. Adequate representationc. Formal class treatment
Rule 23(a) Requirementsa. Numerosity (plaintiffs so numerous that joinder is
impracticable)b. Commonality - common question of law/factc. Typicality - representatives are like common classd. Adequate representation - fit to represent class, doesn't have
interests that are harms to interests of others in the class How would Burke have done under these factors?
a. Checks outb. Checks out (common question - not are your interest the exact
same)c. Doesn't check out (Burke isn't even representative of her
husband)d. Doesn't check out (if you lose on typicality, you almost always
lose on adequacy) If you pass 23(a), it's enough to pass due process If court is going to issue judgment that will hurt you in some way, they
need personal jurisdiction over you Ruling: Parties not in the same class, old litigation does not bind new
Philips Petroleum Co. v. Shutts (1985) You don't need personal jurisdiction over absent class members so long
as they are protected by the court (not really protected - they don't have administrative capacity) and have adequate representation
Need:a. No remedies against absent members
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b. Notice and opportunity to opt-out Seems inconsistent with Bristol-Myers Squibb
a. What does it do to Phillips Petroleum? is still openb. Bristol-Myers is about personal jurisdiction over defendantc. Phillips did not contend PJd. Fairness to absent class members vs. fairness to defendants
If defendant wants to file claims against class, they would have to worry about personal jurisdiction, counterclaims are harder here
Adequacy involves:a. Are these people competent?b. Do they have incentives to do the "right" thing for the class?
Choice of law issuea. Has to be done on a plaintiff by plaintiff basisb. Different groups of plaintiffs have different laws applying to
them Rule 23(c)(5) creates subclasses
a. Could be divided up for different laws applying to themb. Need more class representatives (one for each subclass)
Rule 23(c)(4): (particular) issue class actiona. Divide it up by issues instead of by peopleb. Get a ruling on issue, then individual litigationc. Requires more litigation later on --> harder to settle
Court cay deny certificationa. Not the same thing as having your case dismissed b. Your case just can't be a class actionc. Now you are alone, you litigate aloned. May decide to end your case yourselfe. Could maybe still join with others or intervene
In re Teflon Products Liability Litigation (2008) (SCOTUS) [class action over Teflon(-like) products]
A bunch of different cases brought together through multidistrict litigation (MDL)
People was to sue firsta. In case defendant runs out of moneyb. Cases taken on contingency (we will take 1/3 of eventual
damages) DuPont pays some fine 23 different subclasses for different states Suing over pan coating that decomposes/releases bad chemicals over
timea. No injuries but allege that DuPont is guilty of misrepresentation
of products as safeb. Not all health risks manifested c. Misrepresentation is more typical, easier to bring class action on
this than medical risks Implicit "Ghost" Requirement Plaintiff class suing DuPont for misrepresentation of Teflon & non-
branded cookware
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o Element of this is reliance (customer relied on false representation)
o But this is very individualized/hard for class action Broken into 23 state-based subclasses (tort law differences by state) Implicit Requirements
o Clear class definition is necessary Need to know membership without merit test
o Class representatives are members of the class Goes to typicality and adequacy
o Court has to think that these requirements are met Court makes finding In this case, they don't think the requirements are met Worry with typicality, statute of limitations issues
23 subclasses are divided into 3 sub-subclasseso Branded panso 3rd party branded (generic Teflon)o Other ("catch-all")
Court finds this class definition as wrong:o People don't have receipts showing when they bought ito Hard to tell what brand things areo Could be someone who doesn't even have a pan - could be
anyone Seems like objective class definitions… why are they doing this now?
o Might have to peak ahead a the merits to determine requirements (i.e. numerosity, etc.)
o Court is worried we can't find out enough about this How do we do under other requirements?
o Classes are sufficiently large to satisfy numerosityo Court assume commonality (looking for one question, not every
question)o Fails typicality
Statements by plaintiffs: Span 40 years Across wide variety of advertisements/promotional
media Problems with class representatives
Different damages Different claims
o Unable to establish adequacy They have competent counsel but Claim splitting (courts do not like it)
Class gives up other claims/damage theories What if other people get really sick from Teflon down the
line? They would be precluded from litigation
Ruling:
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a. Plaintiffs fail to provide an objective basis to determine several facts significant to establishing membership
i. Whether cookware item in fact contains DuPont coatingii. Whether item was purchased or obtained in some other
manneriii. Whether item was purchased within applicable statute
of limitationsb. Number of potential claimants in each state-wide class is
sufficiently large to satisfy Rule 23(a) prerequisite c. Assumes commonalityd. Plaintiffs fail to establish the typicality requirement of 23(a)(3)e. Plaintiffs unable to establish the “adequacy of representation
requirement 23(a)(4)f. Plaintiffs failed to show that they would have filed similar
litigation seeking purely injunctive relief “even in the absence of a claim for damages”
g. Certification is not appropriate for any of seven state classes listed under 23(b)(2)
h. No finding that class action is superior to individual litigation Summary: Plaintiffs fail to fulfill requirements of class certification –
typicality and adequacy of representation (Rule 23(a)). Failed to establish additional requirements set forth under 23(b). Failed to satisfy two crucial implicit requirements, a class definition ensuring presence of ascertainable class, and a clear showing that all representative plaintiffs actually are members of the class
23(b) classes Prejudice class
a. Mandatory class actionb. Individual interestsc. Everyone in class is in some sense a necessary plaintiffd. Incompatible standards of conduct
i. Defendant has to treat all parties alikeii. Can’t have conflicting injunctions
e. Someone else claims interests/dispose of others' interestsi. Ex. Limited fund case
ii. Very highly scrutinized, very specific fact patternf. Rule 23(b)(1) class actions involve plaintiffs whose claims, if
handled separately, might impose incompatible standards of conduct on the defendant (like conflicting injunctions), or dispose of the interests of plaintiffs who aren’t there (like when there’s a limited fund to be divided up, and the defendant will run out of money to pay individual claims).
g. This is the class-action equivalent of Rule 19; we need the other class members there for the adjudication to be fair.
Injunctive or declaratory reliefa. For class as wholeb. Don't have to bring people in, but no reason they wouldn’t want
to be there
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c. NOT for $ damagesd. Rule 23(b)(2) cases seek injunctive relief for a group ase. a whole (e.g., an employer has to stop discriminating against
group X)f. They’re litigated as a class action because there’s no point in
separate suits if the relief will be the same for everyone. Catch-all class action or damages class action
a. Requirements:i. Class action is superior form of action to any
alternativesii. Class questions predominate over individual ones
1. Different than commonality2. Weighs the class action
b. Rule 23(b)(3) is the catchall for all other class actions and requires that the common questions predominate over the individual ones, and that the class device be superior to other ways of solving the problem.
c. We allow (b)(3) suits so that plaintiffs can recover for small-dollar injuries they’d be unlikely to sue for on their own.
d. But a (b)(3) suit is more feasible to bring individually than a suit qualifying for (b)(1) or (b)(2), so we require notice to absent class members under (b)(3) only.
In re Teflon 23(b) analysis1. Didn't bring a (b)(1)
o If there were individual law suits, there would not have been conflicting injunctions
o They are asking for a new warning label injunction and damages - (b)(1) is not for $ recovery
2. Injunction, but ALSO $ damageso Any $ relief has to be incidental & automatico Court asks about cohesiveness, Sachs thinks this is
wrong Used by civil rights, but not necessary component
to use (b)(2)3. Individual questions predominate
o What kind of cookware? Where did you buy it? How did you use it? Same degree of heat? Did they rely on misrepresentation?
o Superiority - Four factors: Interest of members of the class in individually
controlling prosecution Extent and nature of litigation already
commenced Desirability of concentrating litigation of claims
in particular forum Difficulties with management of class action
o Court is really worried about medical injuries
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Would rather have those that become seriously injured bring their claims
o Alternatives: Individual litigation not really feasible Litigation by AG Test case/preclusion doctrine
Rule 23(c)(2) With (b)(3) - you HAVE to give notice and give parties an option to opt
out With (b)(1) and (b)(2) - you MAY provide notice Class plaintiff has to pay for notice
a. Name party probably doesn't have the $ for this, firm front cost of the notice
Must be clearly and concisely writtena. But in reality, they are confusing to most or ignored
Hypo: Ms. Yee and Garza Ms. Yee --> Garza Mr. Worzek (neighbor)
a. Can join under Rule 20i. Same transaction
ii. Common question of law or fact Mr. Gratz says that Garza burned down his house on a different
occasiona. Different transaction
i. MAYBE part of a series of transactionii. But also maybe (probably) unrelated
Could Ms. Yee be a class representative?a. Did Garza have general practice of negligence while painting?
i. Could be a common questionii. But not really
b. Did Garza burn down my house?i. Not a common question
ii. Answer changes depending on who's askingc. Was Garza negligent a lot?
i. Still not really a common questionii. Can't apply to all cases in the class
d. Common questions result in a common, useful answeri. A little more stringent than Rule 20 common question
of law or factii. Heightened requirement of usefulness
General Telephone Company of the Southwest v. Falcon (1982) [discrimination class action case]
Plaintiff: Flacon, Mexican-American employee who was not promoted by defendant: General Telephone
Falcon is a representative of class of all Mexican-Americans either not promoted or hired because of race/national original
Questiona. Promoted OR hired
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b. Do we know that this has happened to anyone besides Falcon yet?
c. Court focused on existence of the common questiond. Was I discriminated against?
i. Changes based on who's asking the questione. Court says they'd need more evidence, would have accepted
evidence of a general policy of discriminationi. Evidence of corporate culture, etc.
Merits issuea. Why is the court concerned about this before trial?b. You have to answer 23(a) requirements with a finding
This is NOT a Twombly problema. His individual claim is sufficientb. The complaint is not sufficient to satisfy 23(a)
Ruling: Plaintiff cannot represent all Mexican-American applicants Wal-Mart Stores, Inc. v. Dukes (2011) (SCOTUS) [gender discrimination class
action] Plaintiffs: 1.5 million women who work at Wal-Mart stores across the
country Claim that Wal-Mart was discriminatory in promotions
a. Practice of local managers having promotional discretionb. Claim that they used discretion in a discriminatory way
23(a)a. Court says there's a problem with commonality
Hypo example:a. Wal-Mart has standard operating procedure of flipping coin
before promoting women (tails = don't promote), orb. Let managers decide, unbeknownst to Wal-Mart, 50% will
discriminatec. Employee 1 & Employee 2
i. Under coin method, 1 is not promoted, 2 is1. Both are subjected to discriminatory practice,
both have caseii. Under manager's discretion
1. 1 has claim, 2 does not (under court ruling) No commonality - no question they could ask that's useful for all 1.5
million women If you actually get damages, would be based on individual findings They could have gotten injunctive/declaratory relief making Wal-Mart
change their promotional policies Ruling: No common question, claims for backpay improperly certified. Dissent:
a. Views manager discretion as discriminatoryb. Still did not think class was certifiable because of money
damagesi. Can't be a (b)(2)
ii. Can't use (b)(3) because individual claims predominated over class action
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e. Class Action Settlements Overview
Rules on class action settlements because of absent class membersa. Make sure it's fair because people will be precluded in the
future Worry about sweetheart deals
a. Defendants strike deal with lawyer for big attorney’s fee with a small judgment for plaintiffs - to save defendant money
23(e):a. Fair, reasonable & adequateb. Noticec. Chance to opt-out again ((b)(3) only)d. Disclose outside agreemente. Chance to hear objections
Opting outa. Don't want to be involved at all in the classb. Not in the class
Objecta. You get to make arguments to court about why it's a bad
settlementb. Still in the classc. A time is specified in the notice as to the deadline for objections
Synfuel Technologies, Inc. v. DHL (fka Airborne) (2006) (7 th Cir.) [prepaid packages case]
Synfuel class sues Airborne Hustler (law firm) objectors Airborne was overcharging customers/setting default weight of 5 lb. for
packages that often weighed lessa. Customers failed to mark weight
Settlementa. Class gets free envelopes or cash up to $30 if they have
documentation as to what their weight actually wasi. Coupon settlement
ii. Requires plaintiffs to do more business with defendantiii. Disgorgement issue - people might choose not to use
pre-paid envelopes, Airborne never really loses any money
iv. Had to file a proof of claim - which only about 3% of class did
v. Airborne wiping out a lot of $ in liability b. Injunction for new training for employees to actually weigh
packagesc. Plaintiffs' attorneys get $5M --> knocked down to $600,000d. Synfuel gets $10K
District court approves settlement --> appeal to 7th Circuita. Defense talks about operational changes saving $ for customers
i. But plaintiffs may not continue to use Airborne, so they would never see savings
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b. It was a lousy claim, plaintiffs are lucky to be getting anythingi. Statute of limitations issues?
ii. Maybe they'd lose at trialiii. People knew what they were getting charged
There's a weird incentive here: more likely to get better settlement the worse the case is
Individual class members would want to bring claims --> harder to settle Nothing about settlement #s relate to value of the claim Class actions should internalize all costs of class members Ruling: Fairness was not adequately assessed
Cytosport Objection to Settlement $5M settlement
a. 24% attorneysb. 20% to classc. 30% to charity (cy pres)
i. Redirect awards to give to other purpose1. For example, if will says that belongings/$
should go to an animal shelter that has gone out of business by the time person dies, maybe belongings/$ go to another animal shelter
ii. Charity in this case was giving away their product at sporting events
iii. But that was their marketingiv. Party of class action was that product was not healthyv. Class wouldn't want this
d. 20% to injunctione. 6% distribution costs
Judge revised settlement a little, but it mainly stated the samea. Hard to win
Other 23 Rules (g) - courts appoint representatives
a. Usually counsel that brings the suit (but the court can choose someone different)
(h) - attorney's feesa. Courts can decide so that it's fairb. For other (non-class action) cases, courts don't care
Future Conduct Settlements Common for action to settle future claims based on past conduct
a. Point is to take issues and tie it all up Different when people try to settle future claims based on future
conducta. Not okay, don't want to permit continuing, harmful practicesb. No statute or explicit rule against thisc. Courts generally say it's not fair, adequate & reasonable
i. But people still try Class Action Fairness Act of 2005 (CAFA)
Works to fix forum-shopping Defendant-side bill
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It's bad for defendant to have damages hearing first Subclasses might apply different states law, but it’s the same venue Plaintiffs get to decide where claims are filed
a. Defendant's want to narrow Hypo: Plaintiff 1 and Plaintiff 2 are both suing defendant (for $10k each)
a. Completely diverse, but doesn't meet amount-in-controversy for federal court
b. (Under 1332) Even if there were 8 plaintiffs, you can't aggregate & get SMJ
i. Same if there were 9,000 plaintiffsc. Before CAFA
i. Class still can't come to federal courtii. Look to representative's citizenship for diversity
purposes (named parties)1. Could pick rep from same state as defendant so
that claim/case would state in state court --> defeat rights to removal
d. CAFA drew cases into federal courti. 1332(a) is still good law
ii. But 1332(d) is added - new door into federal court1. Requires minimal diversity2. Allows aggregation ($5M amount-in-
controversy)3. Only one defendant's consent needed for
removal4. Gets rid of local defendant rule (defendant from
same state as court - can't be removed because court won't be biased)
5. Mass actions - CAFA still applies if there are more than 100 plaintiffs, even if they aren't a class
a. Mass action under CAFA is just an ordinary lawsuit in which 100 or more plaintiffs have chosen to file together, through the regular joinder rules; they each represent their own interests.
6. Discretionary exceptions; federal court can deny §1332(d)(4)
a. 2/3 plaintiffs are from forum & other local
i. Must decline federal jurisdiction
b. Between 1/3 and 2/3 plaintiffs are from forum
i. May decline federal jurisdiction CAFA has other, non-SMJ provisions
a. Restrictions on coupon settlementsf. Multi-District Litigation
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Result of CAFA & other laws Consolidate individual claims and judicial panel (JPML) assigns to one court
Procedural rules on this not super clear Consolidate to do all of discovery, motions, etc. If the claims survive that and aren't settled, they go back to home court for
trial (this like never happens) Wild west of civ pro
Changing all the time It will be super important for practice, but we won't cover it much more
cause it will be a different animal by the time we are in practiceVI. Discovery and Settlement
a. Overview Most important part of civ pro Cases decided on facts not laws/rules Find out the facts after notice pleading Major driver of litigation costs Sets U.S. apart from other countries
Very lawyer-directed Rest of the world is judge-directed Here, judge keeps balance between parties, she's not the fact finder We save a lot of $ on judges Lawyers have incentives to ask for a lot or bury others in paperwork
a. A lot of gamesmanship As such, other countries are resistant to allowing U.S. lawyers to do
discovery in their country When does it start?
Rule 11 Reasonable inquiry needs to be done before the complaint is filed (pre-
pleading) Hypo with Mrs. Jones
Jones falls in grocery store Mr. Smith is custodian at time - his job is to clean up spills Reasonable inquiry not a hard & fast rule If Mr. Smith called lawyer right away Model Rules & every stat has rules of profession/ethics Model Rule 4.2: once someone has a lawyer, you have to talk to the
lawyer, not the individuala. Can't trick or manipulate individualsb. 2.2 is a protection
Clients not subject to Model Rulesa. Maybe includes lawyers who are plaintiffs and not acting in
lawyer capacityi. Rules apply to lawyers at all times
Good lawyer knows everything before trial No surprises if you do discovery right
Rule Who How Obtain? What? Use of Response
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Initial Disclosure
26(a)(1) Parties/yourself Mandatory Info that may be used to support your own claims or defenses
Evidence
Oral Deposition 30 Anyone Reasonable written notice to every party
If an organization, info known or reasonably available
Evidence per R32
Written Deposition
31 Anyone Serve on all parties with notice with delivery to officer
If an organization, info known or reasonably available
Evidence per R32
Deposition to Perpetuate Testimony
27 Anyone Court order Info for expected action or further proceedings
Evidence per R32
Interrogatory 33 Parties Serve on responding party
If an entity, info available to party
Evidence
Request for production of tangible things
34(a)(1)(B) Parties Serve on responding party
Tangible things in possession, custody, or control
Evidence
Subpoena Duces Tecum
34(c)/45(a)(1)(A)(iii)
Nonparties Serve on nonparty to whom it is directed with notice to all parties
Documents, ESI, or tangible things in possession, custody, orcontrol
Evidence
Request to Enter onto land
34(a)(2) Parties Serve on responding party
Property or any object or operation thereon
Evidence
Physical/Mental Exams
35 Parties Court order Condition in controversy
Evidence
Request for Admission
36 Parties Serve on responding party
Admissions Conclusive
b. Discoverable Material Types
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Required disclosures by partiesa. Rule 26(a)b. You have to show your cards, so they know how strong the case
against them is Interrogatories
a. Rule 33b. Ask questions to other side, answered under oathc. Written - sides have time to think about it and write responses
Depositionsa. Of parties or anyone answered under oathb. Standard that they are done orallyc. In person - right then and there/no time to think/compose
Document productiona. Rule 34b. Of anyone c. Force legally to turn over documentsd. Or any tangible thing - to be discussed in later classes
Subpoenaa. Force non-parties to produce document(s) "under penalty"b. Ad testificandum - show up & testify (deposition)c. Duces tecum - bring stuff (papers) with you
Physical and mental examinations of a partya. Can force them to be seen by a doctor of your choiceb. NOT for third-party witnesses or other non-partiesc. i.e. paternity DNA tests
Requests for admission of a partya. Ask party to answer questions/admit to trivial thingsb. i.e. "is this a photo of the intersection at 3rd and Pine Streets?
Content of Questions You Can Ask – 26(b) (1) scope of discovery - very broad
a. All relevant and nonprivileged matterb. Proportional to the needs of the case
i. Benefit > burden of production Privileged - you can't be forced to disclose
a. i.e. attorney-client privilege, marital privilege, (maybe) therapist-patient, (some states) doctor-patient etc.
b. Elements:i. Communication
ii. Between privileged personsiii. In confidence (i.e. not in a crowded elevator)iv. For purpose of legal assistance
Attorney-client privilege The attorney-client privilege protects from disclosure any confidential
communications between lawyers and their clients made for legal assistance. It’s designed to give lawyers and clients space to speak freely, so that clients can get accurate legal advice.
Upjohn Case For companies and their counsel…
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Rule is that privileged persons category includes some employees (i.e. CEO), but random employee is probably not in the category
Exactly who is in the category is a giant question mark People you're talking to need to know if they're your client or not
Hypo What bystander tells lawyer isn't privileged After slip & fall Gunderson (psychiatrist) treats Mrs. Jones She files a separate malpractice against him saying he misdiagnosed her What he said, ordinarily, would be privileged But now, the communication is in controversy
a. Waived privileged b. Claim is about what he said
What's relevant in evidence law is broada. Anything that makes something more likely to be true or falseb. Immediately after the accident, the store sends out a memo
regarding the mopping policy --> Relevance Everything is a "matter" when we talk about privileged or nonprivileged
matters Federal Rule of Evidence 407
a. Subsequent remedial measures are inadmissible Memo is not privileged, is relevant, but inadmissible
a. Could dissuade people from fixing problemsb. Jury could assume blame/liability
Things that are inadmissible are still discoverablea. We still want it, it could lead to admissible evidenceb. Could also tell you hints amount to settlement values (offers of
settlement are inadmissible) I.e. offers to pay medical bills
a. Don't want to dissuade people from doing helpful things Limits to Discovery
Burden of producing is way greater than benefit (highly discretionary) E-discovery - 26(b)(2)(B)
a. Undue burden or cost prevents discoveryb. Court can find good causec. If not reasonably discoverable, court may order production, but
will still assess benefit in relation to cause Hickman v. Taylor (1947)
Hickman (administrator of dead seaman) sues Taylor (owner of tug boat)
Fortenbaugh is Taylor's lawyer a. Gets statements from crew members (witnesses) for general
purposes (insurance? Knows that an accident like this could lead to litigation?"
b. Not under attorney-client privilege Hickman want's statements, Fortenbaugh refuses & court holds him in
contempt Worries
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a. Externality worry - lawyers won't do work because it would be available to the other side (doing the work for the other side)
b. Own mental impressions that you wouldn't want to share Rule 26(b)(3) work product doctrine
a. Documents and tangible thingsb. Prepared in anticipation of litigationc. By/for party or representative for party
i. i.e. lawyer or if you hire a PI, PI report would be covered by doctrine
d. UNLESS there's substantial need/undue hardshipe. The work product doctrine protects documents and tangible
things made in anticipation of litigation by or for a party or their representative; unlike the atty-client privilege, it doesn’t have to be shown to the client, and it can be overcome where there’s substantial need or undue hardship (except for the atty’s mental impressions). It’s there to avoid disincentivizing lawyers from writing things down, for fear that the other side would get to use them.
Hickman had alternative way to get information at a hearinga. No substantial need/undue hardship to get the information
otherwise Never required to hand over mental impressions You can always get access to your own statements
a. You're entitled to know what they think you said What counts? 3 approaches:
a. Specific claim approach (narrowest) - prepared with specific litigation in mind
b. Ad hoc approach - in case litigation occursc. Primary purpose approach - primary purpose of document is to
assist in preparing for possible litigation Ruling: Rules do not require the production as of right of oral and
written statements of witnesses secured by an adverse party’s counsel in the course of preparation for possible litigation after a claim has arisen.
a. District court should not have held defendants in contempt. Burden rests on the one who wants to invade privacy to establish adequate reasons. No ground for the exercise of discretion in favor of plaintiff
b. “No showing of necessity could be made to justify requiring production of oral statements made by witnesses to defendants’ counsel.”
Treatment of Experts – Rule 26(b)(4)(C) Two types
a. Bringing expert to trialb. Not bringing expert to trial (trial prep experts)
What can you ask those you're bringing to trial?a. Ask about their report (after they've written it)b. Ask for their communications with the attorney if they relate to:
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i. Compensationii. Facts or data provided by attorney
iii. Assumptions attorney provided What can you as those you aren't bringing to trial?
a. Everything is a draft --> all work product --> can't ask for anything
i. Unless there are exceptional circumstancesb. Why would you hire expert you're not bringing to trial?
i. Might just need to learn somethings to understand other evidence, context, etc.
Summary Scope of discovery
a. Any relevant, non-privileged matterb. Proportional needs of the case
Limitsa. Duplicativeb. Otherwise availablec. Ample opportunity to have gained the information beforehandd. Outside of scope
Discovery rulings are hard to appealc. Discovery Tools
Defendant method is more routinized than plaintiff Service
Put in a retention policy (i.e. stop deleting things!)a. There is a worry about spoliation (evidence might spoil)
Informal investigation Interviews Brainstorm defenses Prepare motions/answer (21 days to answer)
Discovery phase Rule 26(f) meet and confer
a. Just parties, no judgeb. 26(a) disclosures and any objections or limitsc. Talk about claims or settlingd. Discovery plan
i. Might agree on extra time or certain requirements (i.e. all documents need to be presented in PDF)
Pre-trial conference Early document production Overriding various limits from FRCP
Submit discovery plan to court 14 days after meet & confer 26(a) initial disclosure get made:
a. Individual contact infob. Documents, etc. used to support own claims or defensesc. Computation of damages and supporting documentationd. Insurance policies
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Hit me with your best shot - stuff actually used by disclosing party/best stuff they have
Designed to encourage settlement Book hypo: Painter --> Toyota
a. Claim over Camryb. If Painter asks for something that someone at Toyota has
reasonably availablei. Not obliged to turn over documents that support other
side at outset (in initial disclosurec. (a)(1)(A) - ALL reasonably available material
Flores v. Southern Peru Copper Corp. (2001) Argument about whether defendant has to turn over insurance info
under 26(a)(1)(A)(iv) Defendant filed motion to dismiss part of the claims under 12(b)(6)
a. Does not stop the discovery clock (unless court rules so) Court can alter discovery requests, so can parties by stipulation Make a motion or object in discovery plan if you don't want to disclose
something Scheduling conference 16(b)
After initial disclosure Scheduling order
a. Judge is there with partiesb. 21 days after meet and confer
Schedule order must include:a. Joinder (time limits)b. When pleadings should be amended c. How discovery will go downd. Motion (particularly Rule 56 summary judgment)
May schedule various other things Parties cannot modify scheduling order by stipulation Only modified for good cause with judge's consent Can have 1 or more pretrial conferences
a. Judge has enormous discretion, but most judges don't get their hands dirty
b. Managerial vs. hands-off judgesi. Hands-off are more common because of the burden
involved and the busy schedules of judges What else needs to be disclosed?
26(a)(2) - variety of information about your expertsa. Who, written report w/ opinionsb. Exhibitsc. Qualifications and money
26(e) - anything you disclose, you have to supplement over time 26(a)(3) - no surprises at trial - contact information for potential
witnesses (B) - allow of objections
a. Motion in limine - judge rules on admissibilityb. Well before trial
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i. Want this because objections at trial would influence jury - they would still wear inadmissible evidence
Rule 33 – Interrogatories A lot of discovery tools came out of equity Written list of questions sent to the other side who has to respond in
writing under oath Can send to a party (if you want to ask ? s to a non-party - you'd go for a
deposition or subpoena) You only get 25 questions, but parties often stipulate that they can
override limit (b)(1)(B) - all information available to the party 26(b)(1) - burden compared to benefit test
a. Used in interrogatory example on page 833 Everything asked has to be in scope of discovery
a. *whether something is discoverable is distinct from whether it's admissible*
You have 30 days to respond to an interrogatorya. Option in Rule 33 - you can produce your business records for
them to look for informationi. Limit is 33(d) - burden has to be the same for them as it
would be for youb. You might not want them in your files (i.e. because they have
trade secrets)c. Might rather answer interrogatories yourself
Interrogatories under Rule 33 are written questions posed to a party during discovery that they have to answer under oath. They’re a quick and inexpensive way to discover information, with time to adjust your discovery strategy afterwards, and the responses can also be used as evidence.
Rule 34 – Discovery Request for Production Send request to any other party What is a document?
a. Writings, drawing, graphs, charts, photographs, recordings, images, other data - in any form
b. Documents or electronically stored information No silent objection in discovery
a. You cannot simply fail to turn something over and just not say anything
i. Privilege log - say what you won't turn over (in identified terms) and reason for not turning it over
ii. Other side should have enough information to test the claim
b. If you want stuff that they refuse to turn over, you can file a motion to compel Rule 27
i. Other side can file motion for protective order under 26(c)
1. Would permanently protect it
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Party opposing discovery had the burden; the default is that stuff should be discoverable
a. 26(b)(2)(C) exceptioni. Unreasonably cumulative/duplicative
ii. Can be obtained by more convenient/less expensiveiii. Ample opportunityiv. Outside of scope
b. 26(c)(1)i. Confer in good faith before getting judge involved
Have to produce documents, ESI, or tangible things (i.e. any object) in your possession, custody, or control
What if you don't have a key document?a. i.e. it's at an archival serviceb. It's still in your control
As it's usually kepta. Don't hide it or place it to confuse the other sideb. Sam format that it's usually kept in
(a)(2) - permit entry onto designated land to inspect an object or land 26(b)(5) accidental production
a. Privileged documents, out of scope, given to other side by accident
b. What do you do?i. Claim privilege - tell them what happened
ii. Other side must return, sequester, or destroy1. If they return them, other side has to preserve
them until dispute is resolved2. Sequester requires you to not examine the
document in detailc. Metadata (track changes, etc.) is the most typical type of
accidental productiond. This supersedes ethics rules
i. Fight about use after you return, sequester, or destroyii. Some states say delete accidental information, others
say it's your duty as a lawyer to review it, others say it's up to you
Document requests under Rule 34 are written requests to a party for the production of particular documents, so that you can gain access to relevant materials and also use them as evidence later on.
Rules 30 & 31 – Depositions Rule 30 - oral (standard) Rule 31 - written (more old school) In person interviews under oath Can be administered to any person
a. Would need a subpoena to make a non-party show up Pre-trial (trial run) How?
a. Notice to all partiesb. Time/place
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c. Name/address of deponent (if known)i. Could be like "send me the engineer who works on
brakes"d. Recording method
No judge is presenta. Need an officer to administer oath
i. Reporter, notary, stenographer, etc. You can depose a corporation
a. Name an entity who will designate the proper individualb. Have to testify known or reasonably available informationc. Send one person who knows a lot or send in multiple people
Lawyers can object if you ask about something that inadmissiblea. Note object on the record, but deponent keeps talking and must
answer the question, if within scope of discoveryb. If they ask about privileged material, don't have to answer
i. State/record objection and instruct client not to answerc. If it isn’t privileged, answer the question and state the objection
30(c)(1) - like trial, you can cross-examine and redirect a deponent How can you use this info?
a. Can use it to prepare for trialb. Use it to impeach witnesses (call someone to testify at trial and
they go against what they said in deposition)i. If they change the story
c. Directly at trial under Rule 32 (hearsay variant)i. Hearsay - Out of court statement introduced to prove
something against person who made the statementii. Other exceptional situations
d. When the person cannot be at triali. 32(a)(4) - unavailable witnesses
e. To motivate settlement - get stuff to undermine the casef. Motions for summary judgment
Answers at deposition are supposed to be on the flya. You do a mock deposition beforehandb. But you're not supposed to come with written out answersc. Lawyers tend to be defensive in depositions
Can only be 7 hours You have a right to review transcript or recoding after deposition is over You can modify
a. Give new answers ("hey, I misspoke")b. Both are evidence
We're not gonna talk much about written depositions (Rule 31)a. Court reporter interviews and writes answers downb. Best used for really simple questionsc. Can also involve documentsd. Money saving device
Rule 45 – Subpoena (non-parties) What goes in a subpoena notice?
a. Issuing court
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b. Case #, infoc. Time/placed. Method of recordinge. If you have to bring docs
You can only use Rule 34 to compel production from a partya. Need a subpoena to compel non-party
Don't need permission from courta. It's like a summonsb. Clerk issues them automatically (U.S. rule on this is unusual)
What if someone doesn't want to participate?a. Move to quash the subpoena (quashal)
Subpoena is issued from court where action is pending, but you don't have to have the deposition where the court is
You move to quash in the district where compliance is required - 45(d)(3)
45(c)a. Within 100 miles from where you live, work, or regularly
conduct businessb. For non-party
Exceptionsa. No big expense (trial)
i. Wouldn't be super expensiveii. Maybe other side is willing to pay for an airline ticket
b. Party officers can be forced to show up in state for trial even if not within 100 miles
c. The exception for trial is because you need everyone in one place
When must the court quash a subpoena?a. Not enough time to reasonably respond b. Distance c. Privileged or protected informationd. Some sort of undue burden (discretionary by court)
When may the court quash a subpoena?a. Trade secretsb. Unretained expert opinions (unpaid/not going to trial)
i. Unless party serving subpoena shows a substantial need and party will compensate appropriately 45(d)(3)(C )
ii. This is experts only - they could be in really high demand for testimony on many different cases
What if part of subpoena is burdensome but other parts are not?a. Move to modify (i.e. change the date)
Subpoena duces tecum - bring the documents with youa. Subpoena duces tecum are commands under Rule 45 to
produce documents; in theory, they order you to bring documents with you to a definition. They can be issued to anyone (typically non-parties, though), and are issued by a lawyer or in blank by the court clerk. They’re necessary to get
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documents from unwilling non-parties, like medical records from a doctor who treated the defendant’s injuries.
Subpoena testificandum - show up to testify Can move to enforce subpoena
a. if it's granted, they could be held in contempt Rule 35 – Physical and Mental Examinations
Why?a. Calculating damages, pain & sufferingb. Paternity or medical malpractice cases
How?a. Consent or submit motion for court order
Who?a. Parties b. NOT witnesses/non-parties
i. Can try to get the information you need from them through deposition or trial testimony
What?a. Condition has to be in controversyb. Also need good cause
Sacramona v. Bridgestone/Firestone, Inc. (1993) (D. Mass) [HIV examination case]
Plaintiff suing for accident involving putting tire on a rim Plaintiff sued for lost wages for the future There was evidence that he was a drug abuser and engaged in
unprotected sexa. Defendants want him to get HIV blood test
Not every jurisdiction has doctor-patient privilegea. Maybe they subpoenaed his doctor for this information
This test is seen as far more intrusive because of the time/risk factors/social stigma
Defendant doesn't want to pay for lost wages if plaintiff is gonna die soon
Might use actuarial statistics Sachs thinks the issue was in controversy, but it wasn't a good cause
case Ruling: By seeking future damages, plaintiff has not placed his HIV
status in controversy for Rule 35 purposes. Extraordinary relief sough stretches beyond the parameters of Rule 35(a)
Rule 36 – Requests for Admissions Written requests, answers are conclusive
a. Binds you in the caseb. You have waived your ability to claim the opposite
Must do one of the following:a. Admitb. Specifically denyc. Explain why the party cannot admit or deny
Need courts leave to amend them a. Different from interrogatories which you can amend later
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You have to answer it in good faith Most of these things are trivial (i.e. "is this a photo of this
intersection?") Might make agreement between parties to exchange information
d. Sanctions Chudasama v. Mazda Motor Corp. (1997) (11 th Cir.) [fraud case – asks for
unreasonable amounts of discovery] Plaintiff's family sues Mazda for injury and fraud involved with car
accident Fraud
a. Made false statement and you know it Plaintiffs bring requests for way too many documents What does defendant do?
a. Objects to requestsi. Court doesn't rule
b. Motion to dismiss fraud claimi. Would reduce discovery
ii. Court doesn’t rulec. Seek 26(c) protective order
i. Court doesn't ruled. Stop discovery/withhold information
i. Plaintiffs file motion to compelii. Court issues compel order and sanctions
Appeal to 11th circuita. Court says that district court should have addressed issues in
courseb. No hard and fast rule, but appellate court says trial court
abused their discretionc. 11th circuit recognizes the last strategy deserved a sanction, but
they are more lenient because court ignored their legal remedies
d. They could have gotten writ of mandamus 0 run to appellate court for help
e. Overturned various sanctions Ruling: District court’s decision to compel discovery and use excessive
discretion in this case was an abuse of discretion. Claim was dubious enough to require the district court to rule on Mazda’s motion to dismiss before entering to compel order. Sanctions may have been appropriate, but the ones imposed were clearly excessive.
Rule 26(g) – Signing Disclosures, etc. Must sign initial disclosures (26(a) stuff)
a. Complete and correct Attorney must certify every response Discovery requests, responses, and objections must show that:
a. They are warranted by law (non-frivolous argument for client)b. Not for improper purpose (i.e. make more work/costs for other
side or needlessly throwing road block to other side) Sanctions (normally)
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a. Failure to disclose something you should haveb. Refusing to respondc. Evasive/incomplete responses
Rule 26(g) is different from Rule 11 Rule 11 is for when you file a complaint, not saying it’s complete and
Duty to supplementa. Like if something new comes up or if you find something that
you should have disclosed Rule 37(a) – Motion to Compel
Please compel them to give up that document If court grants, they issue a compel order
a. You have to provide what you should have earlier If you still don't comply,
a. 37(b) motion for sanctionsb. If granted, sanctions are imposed
[This is in general, court can do some things sua sponte] Cost: judge as sleeping dragon
Rule 26(c) - Motion for Protective Order Kind of like declaratory judgment that the information is privileged Party opposing discovery bears the burden Parties have to try to work it out together first
Rule 37(d) – Stonewalling If you don't show up for deposition or completely ignore request If you ignore deposition, interrogatory, or inspection request entirely (Attempt to confer) Can skip compel order and go straight to motion for
sanctions Standard sanctions
a. Money (i.e. paying attorney's fees - most common)e. E-Discovery
Overview What's unique?
a. Enormous volumei. Hard to collect
ii. Much more than paper documentsb. Issues of preservation
i. Routine cleanouts of dataii. Accidental deleting
c. Formati. PDF, Word documents, database entries, Excel sheets,
videos, sound recordings, and many more formats of data
d. Searchingi. It's easier for a computer to search
ii. Plausible to ask for a lot more In general, the producing party pays Rule 26(b)(1) - defines the scope of discovery
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a. Burden vs. benefit b. You can't ask for the moon
Rule 26(b)(2)(C) limitsa. Unreasonably cumulative or duplicative & obtainable from
another sourceb. Outside of the scope of 26(b)(1)c. Ample opportunity to obtain information prior
Zubulake v. UBS Warburg LLC (2003) (SNDY) [plaintiff has smoking gun evidence for EEOC claim]
Plaintiff Zubulake files a complaint with the EEOC that she has been discriminated against based on her gender
She then files complaint that defendant retaliated against her for her EEOC complaint
Plaintiff has a smoking gun email to help prove the retaliation Plaintiff asks defendant to produce documents and they don't produce
all that they havea. We know this cause plaintiff produced emails on her own that
were not in defendant's production UBS has data on:
a. Back-up tapesi. Hard to access
b. Optical disksi. Easy to access
Cost-shiftinga. If producing party pays, requester will feel free to ask for a lotb. Don't want to put undue financial burden on one partyc. If we don’t' have evidence/haven't ruled on any merits, it's hard
to tell how costs should be cut Court suggests consideration of cost-shifting to reduce burden This case is in district court:
a. Won't get many appeals because this is a discovery decision, not on the merits
b. Would only go to appeal if it was argued that the judge abused discretion and it affected outcome of the case
This case becomes like the gold standard among other district courts Court proposes 3-step approach to cost-shifting (all adopted in some
way to 26(b)(2)(B)a. Easily accessible --> no shiftb. Take sample of hard to access documents and determine their
usefulness --> decide what to do from therec. 7-part for cost-shifting
Rule 26(b)(2)(B)a. Not accessible in light of (ILO) undue burden, then no discovery
unless…b. Burden on resisting partyc. Court can still order if there's undue burden if there's good
cause
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i. They may order production with a condition (i.e. cost-shifting).
Ruling: Three step analysis:a. Thoroughly understand the responding party’s computer
system, both with respect to active and stored data. For data that is kept in an accessible format, the usual rules of discovery apply.
b. It is necessary to determine what data may be found on the inaccessible media.
c. Cost-shifting analysis considered the factors (weighted more or less in order):
i. Extent to which the request is specifically tailored to discover relevant information
ii. The availability of such information from other sourcesiii. The total cost of production, compared to the amount
in controversyiv. The total cost of production, compared to the resources
available to each partyv. The relative ability of each party to control costs and its
incentive to do sovi. The importance of the issues at stake in the litigation
vii. The relative benefits to the parties of obtaining the information
Spoliation When evidence is "spoiled" (destroyed or otherwise compromised) Can be done accidentally or with intent
a. It's really easy to delete data (as opposed to warehouses full of paper documents)
Rule 37(e) deals with spoliation of ESIa. If there is a duty to preserve (rule not clear what duty to
preserve entails - have to rely on common law)b. Litigation hold/retention policesc. And it's lost because you failed to take reasonable steps to
preservei. You can try to restore or replace it via additional
discoveryii. If you can't replace it, the court may take action
1. If there is prejudice, you can try to correct it 2. The court may order that you can't make an
argument that could be refuted by missing evidence (i.e. somehow cauterize it)
d. What if there was intent to deprive the other side of evidence?i. The court may presume information was unfavorable to
the side who spoiled it (and instruct the jury to presume the same if applicable)
ii. If it's really bad --> the court may issue a default judgment or dismissal (Chudasama v. Mazda)
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iii. Intent to deprive means is in respect to litigation - it doesn't come from a general cleanout policy
1. Maybe if you were trying to hide stuff from the IRS (and not from a litigation matter)
a. But even still, that's probably just an ordinary inference, not a 37(e) inference
e. No sanctions provision - protect people who delete things by accident
i. Won't presume it was unfavorable Predictive Coding
Teaching computers to do discovery Humans look at sample documents and code them as relevant or
irrelevant; then, the computer decides whether other (many) documents are relevant based on the coding
Judge Peck is a big proponent a. Magistrate judge in Moore v. Publicis Groupe & MSL
Magistrate Judges
Magistrate Judges Federal Judges
Governing law 28 U.S. Code § 636 Article III of U.S. Constitution
Appointment By district court judges By president with advice and consent of Senate
Term Renewable terms During "good behaviour"/life tenure
Job Part- or full-time Full-time
Numbers Director of ADUSC* sets number Determined by Congress
Why do we have magistrate judges?a. We need lots more judges!b. It’s hard to get as many as we need with the life tenure of
federal judges under Article IIIi. You can’t appoint too many because:
1. You can’t fire them2. And you need really experienced people to be
sure they can serve well for lifec. Easy, flexible way to stack up the judiciary
What can they do?a. Without parties’ consent
i. Hear and determine pretrial matters (i.e. discovery issues)
1. Non-dispositive mattersa. Something that’s not going to end the
caseb. What’s dispositive?
i. Something determinative
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ii. Motion for SJiii. Motion to dismissiv. Certification
2. This is subject to review for clear errora. District court can only throw it out if it’s
clearly wrong (not just 51% wrong)ii. Can make recommendations for dispositive matters
iii. Special master1. To be continued in a later class…
b. With parties’ consent (consent is final):i. Anything – including the trial (any/all proceedings)
ii. Enter judgmentiii. Appeals go straight to count of appeals
Why would someone consent?a. Magistrate judges have freer dockets it would be quickerb. We simple don’t have enough real judges
Appeals side-note
Question of Standard
Subject discretion Abuse of discretion
Fact, by court Clear error
Matter of law De novo
Discovery a Better Way: The Need for Effective Civil Litigation Article by John Beisner (class action guy from Skadden) Worry about plaintiffs abusing discovery to force defendants to settle Usually plaintiff doesn’t have a ton of information, but in big class
actions, defendants have pretty much everything Prior to 1970, Rule 34 had good cause requirement Lawyers ask for a lot because it doesn't have to go through a judge Proposals
a. Cost-shifting e-discoveryi. Burden on requesting party problem
ii. Some of this concern has been taken care of by Rule 26(b)(2)(B) - just a little bit though
b. Cost-shifting for discovery disputesi. Change from American rule to English rule
1. Losing party pays for discovery dispute2. (Not suggesting adopting holistic English rule;
loser doesn’t pay for whole trial/case)ii. Not implemented
c. Define obligations to preserve electronic documentsi. Rule 37(e) doesn't spell out obligations just discussed
consequences for spoliation ii. We are still confused
d. Limit sanctions to intentional/reckless
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i. Rule 37(e) does cover thise. Stay discovery a general rule while motions to dismiss are
pendingi. Motion to dismiss can take a long time
ii. Don't want to give defendants opportunity to offer really low settlements (for plaintiffs that need money ASAP - they might be willing to accept way less than they are owed because they can't wait a long time)
1. i.e. sick plaintiffs need money ASAP - don't want the defendants to manipulate them
iii. Not implemented Some statutes have been passed (i.e. PSLRA)
VII. Trial and Judgmenta. Dismissal and Settlement
Rule 41 – Dismissal (a) Voluntary
a. (1) by the plaintiffi. Without court order
1. Notice of dismissal before opposing party serves motion of summary judgment or answer OR
a. Notice is NOT asking permissionb. Time limit because you don't want to
dismiss after parties have put in a lot of work
c. Why not after a motion to dismiss?i. Motion to dismiss tells you that
you made a mistakeii. Motion for summary judgment
and answer require work on the facts
d. Exception for class actions - Rule 23(e)i. There are rules about side
agreements - you have to disclose them
ii. Don't want one plaintiff to abuse others
2. Stipulation by all parties ii. Effect (two dismissal rule)
1. Ordinarily voluntary dismissal is without prejudice
2. Exception if they've previously dismissed same claim
a. If this is the 2nd (or nth) time, it's dismissed on the merits
b. IF the second dismissal is by notice - the first one could have been by notice or stipulation
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3. For stipulation, it's not dismissed on the merits (because all parties agree)
b. (2) by court order (b) Involuntary
a. Some might be dismissed because you messed up/breaking rules
b. "and any dismissal not under this rule"i. i.e. Rule 12(b)(6) motion
ii. On the merits/with prejudicec. EXCEPT - dismissals for jurisdiction, venue, failure to join a party
(Rule 19)i. This is dismissed without prejudice
ii. These are all problems with the match of your case with the court
iii. This is the wrong forum, not a faulty claimd. Additional categories have been added to these exceptions
i. Forum non conveniensii. Various pre-conditions to suit
1. i.e. some state statutes have rule about sending a demand letter (if you forgot)
iii. Suit is premature1. i.e. you have a debt that is not due
iv. (also non-merit dismissals) Why would anyone want to dismiss their own case?
a. For easeb. Don't have time to do research necessary for an amendmentc. Don't like the judged. Defeat diversity jurisdictione. Find longer statute of limitationsf. Facilitations of consolidation of claimsg. Page 1008 for more examples
Two types of dismissala. Without prejudice
i. You can refile in the same court1. Might need to change some things
b. On the merits (with prejudice)i. Can't refile in same court
ii. MAYBE can refile in other courts (to be continued when we get to preclusion)
In re Bath and Kitchen Fixtures Antitrust Litigation (2008) Plaintiffs file putative class action (hasn't been certified) Defendant moves to dismiss - Rule 12(b)(6) Court issues memo saying plaintiffs need to give more facts & gives
them a chance to amend Plaintiffs issue notice of voluntary dismissal (Rule 41(a)) Court says it's untimely and strikes their voluntary dismissal. They
dismiss on defendants 12(b)(6) motion
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Their dismissal would have been without prejudice, but 12(b)(6) motion that was granted is with prejudice
Appellate court vacates 12(b)(6) dismissal and sends order to dismiss without prejudice
a. Notice was timely - before answer or motion for summary judgment
If defendants had filed an answer before plaintiffs motion to dismiss, the would need a court order dismissal
When does the court grant voluntary dismissals?a. Discretionary by judgeb. Grant unless there is plain legal prejudice
i. (if it would be unfair)ii. This is a different kind of prejudice
c. Can impose conditionsi. Ordinarily without prejudice
Why would you ever want to dismiss your case with prejudice?a. Settlement - showing them you won't come back for more
i. Can be with prejudice if plaintiff says so Settlement
Typical civil case never goes to trial By 2002, 2% of federal civil cases went to trial What about other 98%?
a. Dismissedb. Discovery ends cases
i. Motion for summary judgmentii. Settlement
Only go to trial when both parties think they have a chance of winning and they can't agree on a settlement
Why would someone want to settle?a. Avoid trialb. Avoid litigation costsc. Uncertaintyd. Quick resolution of casee. Bad pressf. Would rather have certain amount rather than uncertain
amount Settlements are "in the shadow of the law"
a. Don't get exactly at legal entitlementsb. But supposed to be "close enough"
Judge Easterbrooka. Why doesn't settlement make parties worse off?b. Quick resolution is REALLY importantc. If they settle, what do they actually do?
i. Consent decree, OR1. Taken from equity - usually had injunctions
ii. Settlement agreement1. Dismissed with prejudice and write up a private
agreement/contract
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Why would anyone use a consent decree? There is so much flexibility with settlement agreements
a. If you're worried about future conduct of other side Government consent decrees
a. Worry about change over between administrationsb. Some argue, you need government consent decrees (think
school reform litigation)
Consent Degree Settlement Agreement
Type: Court order Private contract (stipulate dismissal and make payments)
Enforcement: Court does it; can hold in contempt
Sue for breach of contract
Public? Public unless sealed (court agrees) Up to parties
Source of SMJ/PJ and Venue:
Same lawsuit/same court New lawsuit for breach of private contract (need new SMJ, PJ, and venue analysis)
Specificity: State all terms of settlement (no secret stuff)
Up to parties - be as vague or specific as you want
How do you change it?
Need court to change under Rule 60
Up to parties - probably amend the way you would any contract
Attorney Fees: Look to statutes to see if you can get attorney fees (if plaintiffs considered to prevail)
Up to parties (plaintiff does not "prevail")
Rule 68 – Offer of Judgment Defendant can make offer of judgment 14+ days before trial If plaintiff agrees --> judgment If plaintiff doesn't agree,
a. Kinda like Rule 408 - no evidence of settlement offersb. If they don't do as well as offer would have given them
i. They have to pay the court costsii. Incentivizes people to take offers
iii. They're the idiot that took up everyone's time and didn't get anything from it
b. Summary Judgment Rule 56 – Summary Judgment
No genuine question/dispute of material facta. If two people disagree and are equally credible - there is a
genuine dispute of fact We can know right now what's going to happen Stop before trial Movant is entitled to judgment as a matter of law
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Motion for Summary Judgment is not the same as a bench trial! Bench trial is just a trial with a judge as the fact finder Summary judgment is a legal decision - no finding facts They are guessing what would happen during trial (bench or jury)
a. Without having heard the testimony Steps:
a. Figure out what the substantive law is b. What facts are material?
i. Will fact matter/have weight in the outcomec. What evidence is in the record?
i. Affidavits are given as exhibits to Rule 56 motions1. What does Rule 56 require for affidavits?
a. Personal knowledgei. Something you actually saw
b. Admissible factsi. Have to follow rules of evidence
ii. Can't use hearsayiii. At depositions, you can't find
out alliv. Don't want to dismiss case on
facts that wouldn't have been allowed at trial
c. By a party competent to testifyi. Summary judgment is a
prediction of real trialii. At trial, you can't use deposition unless person is not
availableiii. You can use depositions at summary judgment as part
of discovery record1. What we think person would say on the stand
at triald. Questions about burdens of proof
i. Who loses if… (various things fail to happenii. Burden of pleading
1. Who loses if no one mentions it2. Whose job is it to mention it
iii. Burden of production1. Who loses if no evidence is on the table2. Whose job is it to produce the evidence
iv. Burden of persuasion1. Who loses if fact finder is uncertain2. Who loses if scales are balanced
v. If you have burden of pleading (plaintiffs for elements and defendants for affirmative defenses and counterclaims)
vi. Usually, party invoking federal subject matter jurisdiction has burden to show that there is subject matter jurisdiction
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1. In state burden on defendant (party invoking) because state courts have very broad jurisdiction
vii. Generally, party resisting discovery has burden of showing that they should produce
1. Party bringing motion has burden to show that motion should be granted
Standards of proofa. Preponderance of the evidence (>50%)b. Clear and convincing
i. Who knows exactly what this meansii. No set percentage
iii. Maybe like 66.7%c. Beyond a reasonable doubt
i. Strongestii. No set percentage
iii. Criminal law Slaven v. City of Salem (1982) (Mass) [prisoner hangs himself]
Administratrix of decedent brings suita. Man hung himself in Salem prison
Defendant makes a motion for summary judgmenta. Lower court approves
Steps:a. Figure out what the substantive law is
i. Duty (DISPUTE!)1. Under MA law, if there is risk of person in
custody hurting himself, there's a duty if you knew or should have known about the risk
2. This is the real problem in the caseii. Breach (no dispute)
iii. Causation (no dispute)iv. Injury (no dispute)
b. What facts are material?i. What the officers knew/should have known
c. What evidence is in the record?i. How does court figure out what officers knew/should
have knownii. Plaintiff alleges in complaint that officers knew or
should have known1. Complaints aren't evidence for you2. They are unsworn allegations, only your story3. Exception for verified complaints, actually
sworna. Treated like an affidavit for summary
judgmentiii. Slaven could submit affidavit based on her own
personal knowledge1. Evidence law determines what is admissible
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2. Judicial notice (things court can just know)a. Like distance from Boston to NYCE
d. Questions about burdens of proof Officers said they didn't know about the risks Court sided with the city because they had affidavits and Slaven had
nothing What if Slaven had testimony from brother's fellow prisoner, "Slimy
Sam" who had 7 perjury convictions?a. He said he heard decedent tell officers that he was suicidalb. Shouldn’t grant summary judgmentsc. Judges don't make calls on credibility
Ruling: Reject the plaintiff’s contention that she could prove that the city knew or should have known of her brother’s alleged suicidal tendencies by cross-examining police officers, and on the officer’s denial of the matter, thereby establish the affirmative
Alice and Bob accident from Quiz Questions Carol witnesses and says it was Bob
a. Bob says it wasn't himb. There is a genuine issue of fact and therefore, should be no
summary judgmentc. All doubts and inferences are against movant
Bob wakes up in hospital with no idea what happeneda. Alice should win, Bob should lose
Bob has an evil twin Binkya. Carol doesn't know if it was Bob or Binky (50/50)b. Court should grant Bob's motion for summary judgmentc. No preponderance of the evidence
Celotex Corp. v. Catrett (1986) (SCOTUS) [not enough evidence] Administratrix sues Celotex for husband’s asbestos-related death Celotex is a manufacturer & distributor of asbestos material Discovery had been all done There was no evidence that it wasn't Celotex Court says you can't speculate to what you could find via testimony
(need SOMETHING now) Rule 56(d) - court thinks you should get more evidence before summary
judgment Part of a trilogy of cases
a. Anderson is the most cited caseb. We know everything we'd get for trial
Corrugated Paper Products v. Longview Fibre Corp. (1989) (7 th Circuit) [third- party beneficiary case]
Corrugated sues Longview under a theory that they are a third-party beneficiary to a contract Longview had with Atlas
Longview was selling a piece of machinery to Atlas who would then sell to Corrugate
a. But they sold it to another party Atlas went bankrupt (so they can't sue them) Longview has depositions to support, Corrugated has nothing
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Need evidence to contradict the testimony or show inconsistency or impeach witness
Basic idea: something beats nothing Ruling: Longview and Atlas did not intend to confer enforceable third-
party beneficiary rights on Corrugated when entering their purchase agreement. Longview was entitled to summary judgment.
Book puts SJ into three categories Proof of elements Disproof of an element Absence of elements Sachs says: ignore these categories
a. The REAL question is: do we know who wins? Final Notes
You can have summary judgment in either direction Summary judgment can be for claim or defense You can have summary judgment on part of claim or whole
a. i.e. separation of liability and damagesc. Jury Trial
7th Amendment1. Jury trial clause: suits at common law where more than $20 is at
stake --> right to a jury trialo Why $20?
Didn't want to include inflation because they didn't want Congress to mess with it
Conscience Trust law Corporations Partnerships Divorces & wills (other
ecclesiastic stuff)
High Seas Prize cases Collisions, etc. (semi-military)
Remedies: Money damages, return Injunctions, accounting (order to Various relief
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of property produce explanation of where money went), rescission/reformation
Procedures: Jury Live, oral
testimony Jury couldn't read
Civil law procedures Written depositions Facts decided by judge Could be more episodic
Generally, civil law procedures
*There are other categories we won't cover (i.e. martial, stannery, ecclesiastical)
History Beginning of system: Already-knowing jury
a. Jury knows more about the cases than anyone elseb. Need to have trial all in one shot
Overtime: Adjudicative instead of investigative jurya. Local people didn't know what happened
Remedies have been most influential in determining whether claim is law or equity
Historical test (for common law): a. Looks back to English common law in 1791 and what they would
have done Hypo: Jones hires Smith to paint his house
Smith only paints half house Jones sues Smith If he wants to make Smith finish the job --> equity If he wants brushes that he took back --> law If she wants to know what happened to money --> equity In old days, couldn't sue all claims in one court
a. Applying 7th amendment was pretty straightforwardb. Separate courts
1738 FRCP fused/merged law and equitya. Have to follow 7th amendment to figure out where law issues
are and where equity issues are Dairy Queen v. Wood (1962) (SCOTUS) [trademark case]
McCullough partnership (trademark owner) sues Dairy Queen, Inc. (licenses the trademark)
DQ sub-licenses trademarks to franchises McCullough wants injunction of use of trademark AND for money for
fees they allegedly hadn't paid under contract Wood is the district judge
a. DQ wants jury trialb. Wood says noc. DQ uses writ of mandamus from Court of Appeals
i. Emergency appeals Before the FRCP, they would have had to use separate courts
a. Damages --> law
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b. Injunction/accounting --> equity Beacon Theatre v. Westover
a. Anti-trust dispute between two movie companies (Fox and Beacon)
b. Want declaratory relief injunctionc. Beacon issues legal (jury) counterclaimd. Court rules that a tie goes to a jury
i. Jury goes firstii. More protection of jury right
1st have jury decide all facts relevant to the money damages claim, THEN judge decides whatever's left over
For DQ, district judge was wronga. Jury goes first
Because we can't use institutions, we use remedies to determine whether juries are necessary (whether the claims fit law or equity)
Ruling: Insofar as the complaint requests a money judgment, it presents a claim which is unquestionably legal.
Curtiss v. Loether (1974) Main factor is the remedy (what you're asking for)
Court has cut back on jury rights as of 1791 Administrative agency proceedings (without jury) Size of the jury
a. Traditionally: 12 peopleb. Today: 6-12 people
Motion for summary judgment and directed verdict (JMOL)a. This did not exist at common law
i. Judge would just tell jury "you should do this, but jury didn't have to do it if they didn't want to
ii. Judge could call a new juryb. Modern: very high standard
Mechanics of Jury Trial Rule 38
a. Either party can demand jury trialb. How?
i. Pleadingsii. Written
c. When?i. If you have a right under 7th amendment or federal
statuted. If you don't demand it, it's waived --> bench trial
Rule 39a. If you don't demand jury trial, but you should have
i. File motion and ask court ii. Court can also order it sua sponte
b. (b)i. Court may, on motion, order jury trial for any issue
which might have been demandedc. (c)
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i. Advisory jury1. Used when court would like to hear what jury
thinks beforehand Why would you want a jury trial? Think about:
Judges mindset (particular or in general) Timing & complexity of issue(s) Jury's mindset (hostile or lenient to one side)
Rule 47 – Selecting Juries Usually through voter registration Get to examine juries for trial Voir dire: questions for jury selection Venire: pool of people who show up for jury selection (b) peremptory challenges
a. Free strike for lawyersb. Can't be used on forbidden or discriminatory groundsc. Advantage of attorneys to shape juries
(c) for causea. i.e. juror is actually plaintiff's cousin or juror could stand to
make money on outcome of cause Verdicts
Special verdict: detailed factual findingsa. Checklist of answers
General verdict: basic ruling for one sidea. i.e. "we find for the plaintiff/defendant [for $50]"
General with written questions: general verdict plus a check on jury with specific questions
Bench Triala. Opening statementsb. Plaintiff's casec. Defendant's cased. … iterations, plaintiff redirect, etc.e. Closing argumentsf. Findings of facts/conclusions of law
i. No verdictsii. Way more detailed
Langein Article Why were there so many trials back in the day?
a. Wasn't as costly
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b. Pleading is differentc. Now you go in with no surprises because of discovery
Old daysa. Equity
i. Judges decideii. Written evidence
iii. Easy to generate evidence (had discovery tools we have today)
iv. Lack joinder rules --> more complex casesb. Law
i. Oral, theatrical testimonyii. Made it easy to do jury trial
1. Only one issue to deal with Now
a. Pretrial is equity likeb. Trial is common law like
d. Judgment and Remedies Judgment
Courts are judgment factories Comes after verdict Specifies who gets what Official order of court Rule 58: Entering Judgment
a. (b)(1)i. Clerk enters judgments if:
1. General verdict2. Court awards only costs of sum certain 3. Court denies all relief
ii. Why clerk?1. Action is ministerial2. No judicial discretion necessary
b. (b)(2)i. Court approval to enter judgment if
1. Discretion is necessary2. Special verdict
a. Ex. CSX/McBridge judgment deciding comparative liability (plaintiff is responsible 33%, defendant responsible 67%)
3. General verdict with written questions4. Other relief
a. Ex. Injunctionii. Judge needs to do legal analysis and approve
c. (a): judgment should be a separate documenti. Right away/immediately/do no wait
d. What if clerk doesn't enter separate document? --> (c)
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i. Appeal timer starts ticking when separate document is produced or runs out when 150 days have run from entry on docket
Hypo: 2 plaintiffs (P1, P2) sue Da. If P2's claim are terrible (no evidence)b. If P1's claims are good enough to get to trialc. D can get a partial summary judgment for P2's claim
Rule 54(b): Judgment on Multiple Claims or Involving Multiple Partiesa. Court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
b. Certify a judgment --> partial final judgmenti. Can take this up to appellate court
ii. Different than partial summary judgmentc. If there's no just reason for delay (on particular claim)d. If judge doesn't certify it, case keeps going e. Partial summary judgment is revisable until partial final
judgmenti. Once final, you have to use Rule 60 to contest judgment
(much harder)f. [Unit of analysis: claims
i. For one single claim, all forms of relief go into same judgment]
Remedies What remedies you're entitled to, determined by substantive law Rule 69 - Executions
a. Enforcing a money judgment (writ of execution)b. Follow state law
i. Federal government doesn't need its own rules, state already has system
Interesta. Pre-judgment
i. Depends on what you are suing for and depends on which state
ii. Set by substantive lawb. Post-judgment
i. 28 U.S.C. 19611. Not much2. Interest between judgment and execution
ii. Usually jury Rule 64 - Seizing a Person or Property
a. Under the law of the state where the court is located
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b. Use at commencement of action and throughout the actionc. Under state law, there are exceptions about what kind of
property is subject to these remedies (i.e. you can't take someone's tools of trade used for livelihood)
d. Types:i. Garnishment
1. Take money that is owed to defendant from third party
2. I.e. child supportii. Arrest
1. Seize a person2. i.e. custody cases3. Doesn't happen as much anymore (i.e.
abolishment of debtor's prisons)iii. Attachment
1. Seizing property/attaching stuff to secure the judgment
a. Could be sold in satisfaction of judgment
b. Any property (i.e. not the stuff in dispute)
2. Make sure you're good for it when the time comes
iv. Sequestration1. Securing specific property (property is part of
dispute)v. Replevin
1. Getting your own property back at the end of the case
2. Specific property3. Not the same as repossession
a. Repossession is self-help, not judicial remedy
b. Has to be peacefulc. Need contract to say you can repossess
Categories of Remediesa. Compensatory
i. Compensate plaintiff for harm sufferedb. Preventative
i. Prevent harm before it happensii. Coercive:
1. Injunction: personal command from court to litigants ordering them to do or to refrain from doing some specific thing
a. Injunctive relief: Injunctive relief orders a party to do a specific thing (other than pay money) outside the courts, on pain of contempt. It helps people get relief
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from injuries that an after-the-fact damages remedy won’t resolve. Declaratory relief simply determines the parties’ legal rights, while injunctive relief commands the losing party to adhere to them.
2. Specific Performance decree: order defendants to perform their contract
iii. Declaratory relief:1. Authoritatively resolve disputes about parties’
rights, but they do not end in personal command to defendant
2. Implicit 3. Declaratory relief establishes the parties’ legal
rights vis-à-vis one another in an actual case or controversy. It’s normally used to permit advance decision of a “mirror image” suit (instead of waiting for someone to sue you for breach, you sue for a declaration that the contract is void).
c. Restitutionaryi. designed to restore plaintiff all that defendant gained at
plaintiff's expenseii. often reverse mistake or voidable transactions,
restoring both sides to their original positioniii. may award to plaintiff profits defendant earned by
conscious wrongdoing, even if profits exceed plaintiff’s damages
d. Punitivei. Designed to punish wrongdoers
e. Ancillaryi. Designed in aid of other remedies
ii. i.e. costs and attorney’s fees, punishment for contempt, garnishment, writ o execution
f. Substitutionary and Specific Remediesi. Substitutionary: plaintiff suffers harm and receives sum
of moneyii. Specific: seek to avoid this exchange
g. Legal and Equitable Remedies i. Legal
1. Compensatory and punitive remedies2. Most substitutionary
ii. Equitable1. Injunctions, specific performance2. Older, more specialized declaratory remedies3. Most specific
Fuentes v. Shevin (1972) (SCOTUS) [replevin case] Plaintiff purchased stove, stereo & service policy from Firestone
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Got in dispute with Firestone over servicing a. Plaintiff stops payment
Firestone files action against Fuentesa. They post bond (3x value of property)b. Get writc. Repossess property with sheriffd. (this is all ex parte; she was not notified until moment of
seizure) Court hadn't decided yet that Firestone owns products Court rules that you need notice & opportunity for hearing 14th amendment due process
a. Violation occurs when you're deprived of due processb. Hearing after doesn't help
Ruling: The prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor.
Rule 65 – Injunctions and Restraining Orders Preliminary injunction
a. While case is going on (final happens after case)b. Four Factor Test (Winter v. Natural Resources Defense Council)
i. Likelihood of successii. Likelihood of irreparable harm
iii. Balance of equityiv. Public interest
Temporary restraining ordera. Ex parte (can issue without notice)b. Expedited hearing - ASAP
i. Limited in time (14 days)c. Have to prove immediate and irreparable injury (they have to
have sworn statement)i. i.e. you can't fix it
d. Why is this different from Fuentes and not unconstitutional?i. The injury in Fuentes wasn't irreparable
ii. It's only irreparable if you can't "fix" it later Temporary restraining order --> preliminary injunction
a. What's the difference?i. Preliminary injunction issues only with notice
University of Texas v. Camenish (1981) [deaf graduate student case/moot injunction]
Deaf grad student wanted sign-language interpreter He wanted:
a. Declaratory relief saying he's entitled to an interpreterb. Preliminary injunction (to get interpreter ASAP)c. Permanent injunction
Considerations for preliminary injunctiona. Likelihood of irreparable harm if injunction isn't issued
i. Don't need it if we can wait for merits determination
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ii. Everyday in class Camenish is losing understanding1. Maybe wouldn't be irreparable if he could
afford it and then UT could pay him back laterb. Whether defendant will be harmed if there is an injunctionc. Whether plaintiff is likely to prevail on the merits
i. Don't want to disturb status quo if he can't wind. Public interest
District court grants preliminary injunction Interlocutory appeal (appeal before final judgment) When he graduate, he didn't need relief (moot?) SCOTUS: preliminary injunction is moot
a. Permanent injunction wasn't mooti. Maybe he would pay it back?
ii. Parties still fighting over who should have to pay Send it back down for trial on merits
a. Likelihood of success is not the same as real success Ruling: Question of whether preliminary injunction should have been
issued is moot. Question of whether petitioner must pay remains for trial on merits.
Justiciability (Article 3) Standing: are you the right person to bring this issue?
a. Injuryb. Causationc. Redressabilityd. (Prudential: even if this is a case, your claim to injury is weak,
we aren't going to deal with it) Ripeness: timing of lawsuit (if nothing actually has happened yet) Mootness: opposite of ripe, over-ripe, the issue doesn’t matter anymore
Rule 65 – Final Injunctions Who is bound by it?
a. (d)(2): binds the parties, agents, employees, other persons who are in active concert or participation with parties or their agents/employees
b. Requires actual notice Distinction between rights under law and rights you get by virtue of
injunctiona. Injunctions are enforced by contempt (in front of court)
Who would be held in contempt if they violated injunction?a. Question tells us who's bound by the injunction
Zenith v. Hazeltine (1981) (SCOTUS) [parent company and subsidiary defined through stipulation]
Backgrounda. Hazeltine is parent company of HRI b. HRI sues Zenith for copyright infringement c. Zenith counterclaims misuse of patent (anti-trust law violation)d. HRI owns and licenses domestic patentse. Hazeltine has foreign patentsf. Zenith is radio and television set manufacturer
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Parties form a stipulation: for purposes of litigation, HRI & Hazeltine are the same entity
a. Hazeltine wasn't made party to the suit There's an injunction that Zenith wants to bind both HRI & Hazeltine SCOTUS
a. It's not okay to bind Hazeltine - no personal jurisdictioni. Hazeltine is not named as a party
ii. Stipulation is not binding on Hazeltineiii. It's signed by HRI, but not Hazeltine
b. Unlessi. They really are alter egos (would have to find this on it's
own - not just stipulation)ii. Or theory that Hazeltine was directing the case (like a
puppeteer) iii. Or theory that they are in active concert or participation
with HRI who IS bound by the injunction Ruling: It is error to enter the injunction against someone without
having made the determination in a proceeding to which they are a party
Who is bound by an injunction vs. who benefits from an injunction "universal" or "nationwide" injunctions
a. Misnomeri. Would apply even to parties not before the court
b. Why have multiple decisions?i. Make decision for all cases at once
ii. Same legal questioniii. But if you're not a party, other decisions don't apply to
you (unless there's binding jurisdiction)c. Ex. Sanctuary city injunctions
i. Cities can't get certain federal funding from Trump administration for being a sanctuary city
ii. Chicago sues DOJ asking for an injunction for all cities (including San Francisco)
iii. Real party in interest under Rule 171. Chicago is not real party in interest for money
being sent to San Franciscoiv. Rule 23(b)(2) - Class action for injunctive relief common
to the class Uniform answer - does plaintiff have right to uniformity?
a. Controversial issueb. Sachs think universal/nationwide injunction is tenuous because
of real party in interest and 23(b)(2) Declaratory Judgments
28 U.S.C. §2201a. Any court in the U.S. may declare the rights and other legal
relations of any interested party seeking such declarationb. Need: actual case of controversy within jurisdiction
i. Are people actually fighting about this?
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c. Can get it as either preview of a suit or the mirror imagei. Williams Trull case: would normally sue insurance
company1. But insurance company could sue to get
Williams Trull to say they burned their own building/insurance company owes nothing
ii. They flipped sides Rule 57
a. Preserves your jury rightsi. Should let mirror image destroy jury rights
b. Under a normal lawsuit --> would there be a jury?VIII. Post-Judgment Procedures
a. Post-Trial Procedures Overview
How to train a verdict later on? Various ways to figure out who wins on the merits
o Rule 12(b)(6) motion to dismiss Judgment on complaint
Plus any exhibits Judicial notice law
Only the defendant can win Motions to dismiss, under Rule 12(b), are filed by the
respondent to a claim before the responsive pleading (typically the answer) is due. They can raise only the defenses listed in 12(b), and they can be granted only when the case can be resolved solely on the face of the complaint—for instance, because it fails to state a claim on which relief can be granted.
This way, we don’t need to spend time litigating based on a fatally flawed complaint.
o Rule 12(c) motion to dismiss Judgment on the pleadings
Complaint Answers And their exhibits Judicial notice Law
Either party can win motions for judgment on the pleadings can be filed by either
side (claimant or respondent) after the answers or other pleadings are in. They can seek judgment on any claim or defense that can be resolved based on all of the uncontested facts from the pleadings as a whole, with any inferences or assumptions made against the moving party.
The idea is to avoid the effort of litigation when, even if one side or the other proved all of the allegations in its pleadings, there’s only one possible result.
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o Rule 56 motion for summary judgment Judgment on pleadings and discovery
Judicial notice Law/undisputed facts
No genuine dispute Either party can win
o Rule 50 - judgment as a matter of law (JMOL) Fka directed verdict 50(a): After plaintiff's case
Pleading can be evidence against you, but not evidence in your favor
Law Judicial notice Plaintiff's case only Halfway through the case - can we know right
now who jury would go for Reasonable jury standard (no legally sufficient
evidentiary basis) Kinda like no genuine dispute
Only defendant can win 50(a): At the close of trial (but before verdict)
Look at everything that happened at trial (both sides) Judicial notice Law Reasonable jury
Either side can wino Rule 50(b) - after verdict
Renewed JMOL It should have been possible to grant this ruling before
we heard from jury Can't renew it if you didn't make it at first Look at everything that was used for 50(a) Whoever opposes a verdict in some way can win We know what the jury said, but they must be wrong Have 28 days after judgment To pretend compliance with the 7th amendment
Why are 50(a) motions formalities?o They are almost always deniedo To avoid retrial in case decisions is appealedo Have jury verdict to fall back on
Pennsylvania RR Co. v. Chamberlain (1933) (SCOTUS) [guy falls off train] Decedent's wife sued RR company (employer of decedent) Allegation is that defendant's negligence killed plaintiff's decedent via a
train car crash Plaintiff had one witness (fellow employee) named Bainbridge
a. Heard a loud crashb. But far away and at a bad angle from site of accident
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Bainbridge's testimony would be enough for summary judgment and JMOL if no one else testified
a. BUT more employees in this case said no crash happened RR wins (court grants equivalent of Rule 50)
a. If Bainbridge had been eyewitness, then it would have gone different
Court: no conflict of testimonya. They aren't weighing credibilityb. The issue here is one of inferential evidence (from Bainbridge)
vs. direct evidence (other employees)c. There are lots of crashes in a railyard
Sachs: all evidence is really inferential, but Bainbridge's inference is punctured
Scintilla standarda. Is there a little bit of evidence that supports non-movant(s)b. Ex. Bainbridge's testimony offers a scintilla c. NOT the federal standard
i. if the inferences no longer works standard (higher) Rule 50 is pretty rare (you probably would have one a Rule 56 motion)
a. Either your lawyer messed up and didn't go for summary judgment
b. Something happened at trial that weakened your case since discovery (i.e. witness recanted
All of this is for jury triala. If you're in a bench trial, use Rule 52
i. Not brought very often Ruling: The case for the respondent is left without any substantial
support in the evidence and a verdict in her favor would have rested upon mere speculation and conjecture. This is inadmissible.
Rule 59 – New Trial For a jury, any reason for which a new trial has heretofore been granted For non-jury, any reason for which a new trial has heretofore been
granted or reopenedo Judge is still there, don't need to call back jurors
(d) 28 days after entry of judgment Can be through a motion by a party or sua sponte (use ground not in the
motion)o But if you change motion, you need to give notice
Rule 50 v. Rule 59o Rule 50 - jury has to be crazyo Rule 59 - jury has to be really wrong
Dealing with randomness of juror selection Correcting for jury randomness
Get new jury Protects 7th amendment rights
Three grounds for judge ordering/granting new trialo Weight of evidence
Jury was really wrong
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o Process errorso New evidence
Addittur: judgment was too lowo Defendant pays more or there's a new trial
Choice is given by the judgeo Unconstitutional
Not part of common law Remittur: judgment was too high
o Either plaintiff takes less or there's a new trial Choice is given by the judge
o Constitutional Jury has already OK'd a higher amount Part of common law
o Can only appeal if there's a new trialo Taking less is considered a settlement --> no appealo Or you have to go through new trial
o Can get less, win on appeal to make up the differenceo Could get more, but pretty rare
The standard for making these determinations: "shocks the judicial conscience"
You can do 50(b) and 59 at the same timeo If judge grants under 50(b), they should give conditional ruling
under Rule 50(c) for 59 motiono How they would have ruled on 59 motion if there hadn't been
a 50(b) motion Rule 61 – Harmless Error
Lots of errors can happen, not all can be grounds for a new trial or changing judgment
To appeal, you have to show error affected your rightsa. If error wasn't made, outcome would have been different
Process errora. Some automatically affect substantial rights
i. Improper jury instruction1. Can't pretend we know what jury would have
done if they were properly instructedii. Improper argument to jury
1. Have to look at details (not necessarily automatic)
iii. Witness misconduct1. Not automatic - have to test
iv. Jury misconduct1. Not automatic - have to test
Recap on Grounds for New Trial or Changing Judgment Harmless errors
a. Rule 61b. Doesn't affect substantial rights/no new trial needed
Jury instructions
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a. Was jury able to properly decide all relevant questions Evidentiary errors
a. Court lets in or excludes evidence if they shouldn't have Rule 59 – New Evidence
Very rare Tend not to find stuff in the 28-day time limit What do you have to show?
a. Were you excusably ignorant with due diligence?b. Would probably change the outcomec. Not:
i. Cumulative1. Duplicative2. We already have evidence on this
ii. Impeaching1. Undermining the credibility of a
witness/evidence What do you do if the time runs out?
Rule 60 – Relief from Judgment or Order In the district court Motions for relief from judgment, under Rule 60, let a district court
correct certain errors in its ruling. We have them to let a district fix things that obviously need fixing, like clerical errors or fraud on the court.
Rule 60 motions are presented to the court that issued the judgment, and they’re very limited in scope;
(a) clerical mistakesa. Can fix these anytime, but not when it's in an appeal
i. Appellate court needs to know what they're working with
(b) a. (1) mistake, inadvertence, surprise, excusable neglectb. (2) newly discovered evidence after Rule 59 runs outc. (3) fraud on the court
i. Not just fraud that you've sued overii. Deliberately presenting perjured testimony, etc.
d. (4) void judgmenti. If there was no notice or jurisdiction
ii. Default judgment without personal jurisdictioniii. Wild lack of subject matter jurisdiction
e. (5) judgment is satisfied, released, or no longer equitablei. Equitable --> i.e. injunction
ii. Is the case moot?iii. Have circumstances changed
1. i.e. Camenish who graduatedf. (6) any other reason
i. Very narrowii. Basically requires some extraordinary cause that is not
captured in the rest of these
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Time limitsa. All: a reasonable timeb. #s 1-3: one yearc. Why a limit?
i. Same reason why there's statute of limitationsii. Don’t want to allow cases to be opened without any
real evidence1. Maybe witnesses are dead now?
(d)(3)a. Can always set aside fraud on the court b. They do this sua sponte, you can't file your own motionc. They don't have time limits on void judgments
i. Not any better now than it was thenb. Appeals
Overview Notice of appeals are filed in the district court They are sent up to the court of appeals FRAP 3: What has to go in the appeal?
o Who's appealingo What specifically you're appealingo Where you're appealing to do
Usually go to the circuit court for the district you're in But could go to patent court, etc.
FRAP 4: 30 days to file an appealo Also, in 28 U.S.C. 2107o It's jurisdictional
If you file too late, appellate court doesn't have jurisdictiono District court can grant extensionso Post-trial motion restarts the clock
You get another 30 days Don't need to worry about Rule 59 new trial motion
3 Ps of Appealso Prejudicial
Same standard as Rule 61 Substantial rights
o Preserved below We care because other party would have had chance to
respond Don't want appellate court to rule on things district court
hasn't seen beforeo Presented above
Appeals court needs to be able to know what it's looking at What if district court made the right decision but for the wrong reason? More appellate logistics
o Three Ps all apply to the appellant (the person challenging/disturbing the judgment)
o Appellee wants the judgment to be left alone
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o Court can affirm on any ground supported by the recordo Appellate court corrects judgments, not reasonso Both sides can appeal --> cross-appeal
If both sides want to disturb the judgment There are exceptions to the 3 Ps
o Plain error doctrine Exception preserved below
3 elements Was there error? Was that error plain?
Clear or obvious Does it affect substantial rights?
You shouldn't have had to say anything below It was such an obvious problem
o Exceptions to be continued… When appeal can be taken? (Jurisdiction)
o 28 U.S.C. 1291: Appellate court has subject matter jurisdictiono Limit on appellate subject matter jurisdiction
Just because district court has jurisdiction, doesn't mean appellate court does
o Appellate court can throw it out if not in their jurisdictiono Can ask district court for help, but if they say no, you just have to
wait for the verdict In re Recticel Foam Corp (RFC) (1988) (1 st Cir.) [fire/cost-sharing case]
Aftermath of San Juan hotel fire About 2000 plaintiffs and 200 defendants There are videos and images that need to be produced by one of the
defendants with possessiona. They agree to produce if they can cost-share with the rest of
defendantsb. RFC opposes, doesn't want to pay c. Court orders cost-sharing
Cost-sharing order is not finala. Case is still going on - lots more could happenb. They wouldn't suffer irreparable harm
How could appellate court fix this problem at the end of the case?a. They could grant $
Why would we limit appellate review?a. We don't want piecemeal reviewb. Don't want to disrupt trial court
i. Rule 54: not reversible until all claims settledii. It can't alter order that's on appeal --> really disruptive
& at that point, district court can't change mind or fix things on their own
c. Expense and delay Ruling: The cost-sharing orders are not final within the intendment of
1291; the Cohen exception to the finality principle does not apply, and
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there is no other hook upon which appellate jurisdiction may suitably be hung.
Collateral Order Doctrine Another exception Four factors
a. Issue unrelated to the merits (separability)i. Can carve it out
b. Completely resolved below (finality)c. Effectively unreviewable on appeal (urgency)
i. If not, you have to wait for final judgmentd. If it's important (importance)
This doctrine is just made up by the courta. Example that can be appealed under collateral order doctrine:
i. Foreign sovereign immunity (when you go against sovereign government)
RFC isn't within collateral doctrinea. The damage/harm would not cause irreparable harm
i. They can fix it with money laterii. Not urgent
The collateral order doctrine, on the other hand, provides for jurisdiction over actual appeals, treating orders as “final decisions” for § 1291 purposes when the issue is unrelated to the merits, completely resolved below, effectively unreviewable on appeal, and important. This doctrine allows for appeals of decisions that are important and “final enough,” but contestable on the merits and so ineligible for mandamus.
Discovery Orders Discovery orders cannot be appealed
a. Lohawk Industries example (in other outline) Almost always not reviewable under collateral order doctrine Order not important, unreviewable
Hypo: Sachs gets sued in Alaska
Order Final? Collateral?
Files 12(b)(6), denied No No, reviewable on appeal
Files 12(b)(2), personal jurisdiction denied
No No
Someone else - Rule 24 intervention, court denied
No Probable Unrelated to merits Resolved Unreviewable on appeal
o Not a party - can't appeal Important
Courts typically say yes
If one defendant files a 12(b)(2) motion, granted
No No, appellate court could send it back down for new trial with the defendant
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dismissed
Rule 54 Final? Does it end the case?
a. All claims, all parties (b) Final by direction
a. Exception to finality principleb. Partial final judgment on a claim
Interlocutory appeals; statutory exception Preliminary injunctions - not final 1292
a. (a): injunctionsi. Court reaching outside of courthouse
ii. Can cause immediate harmb. (b): discretionary review of certified questions/issues
i. If district judge thinks:1. A controlling question of law
a. Appellate court doesn't deal with question of facts
2. Substantial ground for disagreementa. Seems like a big issue
3. Immediate appeal would help the case ii. Both district court and appellate court have to think it
meets the testc. (e)
i. Rules can be made on new kinds of interlocutory appeals (by SCOTUS?)
ii. Standard rule procedureiii. Ex. Rule 23(f)
In general, a district court’s decision isn’t final and appealable under § 1291 unless it’s resolved all the claims of all the parties. Rule 54(b) lets the judge carve off one or more particular claims, entering final judgment as to them and giving the loser(s) the right to take them up on appeal. Section § 1292(b) is more granular, letting the judge carve off particular legal questions for appeal; the appellate court then has discretion to accept an appeal based only on those questions, to assist the district court in reaching a final decision. Both of these devices let us reach an early decision on appeal; 54(b) also lets us start enforcing a judgment on those claims without waiting for the rest of the case.
Rule 62 – Stay of Proceedings to Enforce a Judgment 14 days as of now, with amendment it will be changed to 30 days Automatic stay What do you do when it's over?
a. Can seek a stay pending appeali. Have to post a bond to prove they're good for it
You can stay injunctive order by showing other party won't be harmed
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If district court denies court, appellate court (and in rare circumstances SCOTUS) can grant the stay
Rules much like those for preliminary injunctiona. Reversibleb. Who's likely to win on the merits?
Standards of Review Question of law: de novo
a. Why?i. Appellate judge is just as good as district court at
figuring out law Question of fact (bench trial maybe): clear error
a. Why?i. Harder to review from afar
ii. District judge in better position to assess facts/credibility
iii. Want district court on the ground, not spend appellate court's time
Question of discretion: abuse of discretiona. Bifurcation - Rule 42
50(b): reasonable jurya. Sachs thinks this is really part of question of lawb. Whether there is a legally sufficient evidentiary basis is a
question of lawc. Mandamus
Overview Writ allows courts to order around government officials Rule 81(b) abolished this writ for district courts
a. Now district courts use injunctionsb. District courts don't need mandamus because they have
injunctionsc. Mandamus came from law, injunctions came from equityd. Having both would be somewhat duplicative
Appellate courts still issue writs of mandamusa. Authority comes from 28 USC 1651 (All Writs Act)
i. "usages and principles of law" refers to common lawii. Comes from early Judiciary Act
b. Usually use this to boss around district courts If you want writ of mandamus, you must show:
a. Clear and indisputable right to reliefb. There is no other adequate means of relief
Mandamus is an extraordinary measure --> SAFETY VALVE In re Recticel Foam Corp. (1988) (1 st Cir.) [fire/cost-sharing case]
Back to the cost-sharing order, what can they do about it?a. They can't appeal because there's no final judgment yetb. Court shot them down on the collateral order documentc. They now try mandamus, and court says no
There isn't irreparable harma. They can appeal later and money can be moved around
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It's very rare to lose on collateral order & win on mandamusa. Some exceptions may be orders on attorney-client privilege
Collateral orders don't have to be clear and indisputable, but they have to be important
Mandamus doesn't have to be important, but must be clear and indisputable
Ruling: Petitioner has burden of showing right to extraordinary relief was “clear and indisputable” and that other means of redress were inadequate. It failed to do so.
d. Claim Preclusion (aka res judicata) Claim v. Issue
Mechanisms to get things to the Court of Appeals earlier: Rule 54(b): claim
a. Partial, nonfinal, revisable ruling carved off into a judgment on just that claim
b. i.e. Count III Negligence 1292(b): issue
a. Let court of appeals decide a question of lawb. i.e. is it contributory or comparative negligence?
Overview Claim preclusion involves barring causes of action that were or could
have been adjudicated in a previous case between the same parties (typically because they involved the same transaction or occurrence). We have it to support the finality of judgments (for claims that were previously presented), and to make litigation more efficient by encouraging parties to present everything at once (for claims that weren’t).
Hypo: ACME (anvil manufacturer/designer) licenses design to Evil Corp., who sublicenses the design
a. ACME sues on breach of contract and losesi. Three years later they realize they could have used a
patent infringement theory, but it's too lateii. Why?
1. Not fair to Evil Corp. to try the case again2. Burden & expensive of relitigation3. Judicial efficiency4. Possibility of conflicting judgments
iii. Evil Corp sublicenses to IBM1. Defendant argues that it's a forged contract2. Court doesn't buy it, defendant loses3. 10 years later defendant sublicenses to Apple,
can they sue again?a. Yes! New event = new ticket
4. Can defendant bring the same defense?a. Jury already decided on it --> don't
want inefficiencyb. Official determination of issues
You have already brought this case/claim before
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a. If your rights are violated, you get one ticket from the legal system
i. Ticket = claimb. If you have cashed in your ticket, you can't do it again
Old doctrinesa. Merger: if you win, your cause of action gets merged into
judgmentb. Judgment: if you lose, your cause of action disappears
Claim preclusion a. Applies to both winner and loserb. Same ticket issuec. Possible decisiond. Mutual e. Res judicata
Issue preclusion a. Applies to losers onlyb. Not a same ticket problem, it's a same reason problemc. Actually decisiond. Not necessarily mutuale. Collateral estoppel
Three main elements of claim preclusiona. Same claimb. Valid, final judgment on the meritsc. Same parties
River Park, Inc. v. City of Highland Park (1998) (IL SC) [land development case] Plaintiffs are land owner and developer who want to develop it Wants to sue the city for allegedly stalling their project (through delay
of permit) until the land was forecloses so the city could buy it themselves
Sue in federal court on 42 USC 1983 (violation of constitutional/due process rights)
a. Lost Sues again in state court on:
a. Brach of contractb. Abuse of governmental powerc. Tortious inference with business expectancy
The court evaluates two standards to determine if the state claim is precluded
a. Transactional approachi. Same operative facts
1. Like Gibbs, supplemental jurisdiction, same test2. Same transaction (like joinder rules)
ii. Precludes the most - bars more claims than same evidence test
b. Same evidence testi. Looking at whether evidence of liability is the same
ii. Test is satisfied by this case, if the court had chosen this1. Would have been no preclusion under this test
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iii. Precludes more than primary rightsc. Primary rights (not in the case)
i. What kind of cause of action you can useii. i.e. tort or contract claim
iii. Precludes the least out of all tests Court adopts transactional approach
a. Preclusion!b. You could have brought this the first time
i. So you should have brought itii. Joinder is more flexible, we expect you to package up
more into your claims Ruling: Plaintiff’s claims for breach of implied contract and abuse of
government power are the same cause of action. Three requirements for the application of the doctrine of res judicata are satisfied here. Transactional test should be used for claims of res judicata
Elements Same Claim (Transactional Test)
a. Same claim for preclusion = same case or controversyi. Usually claim means something else (like cause of
b. Consented to be bound by judgmentc. Legal guarantee of adequate representation
i. Like class actionii. Fiduciary laws (i.e. trustees)
d. New plaintiff had control over old plaintiff's litigatione. Old plaintiff has control over new plaintiff's litigation (proxy) f. Special statutory schemes
i. i.e. probate or bankruptcy Court says that these exceptions don't apply here
a. Even though Taylor knew about Herrick's lawsuitb. He's not Herrick's agent
FAA arguing for "virtual representation"a. SCOTUS doesn't buy itb. SCOTUS takes it very seriously that everyone has the
opportunity to have their day in courtc. It would be super unclear --> would they eat class actions?
Ruling: Disapprove of the doctrine of preclusion by “virtual representation.” The judgment against Herrick does not bar plaintiff from maintaining this suit.
Wrap-Up
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Elementsa. Same claimb. Valid, final judgmentc. Same parties
i. Same claimants and respondent Exceptions
a. Consent to second suiti. Claim preclusion is waivable
b. Expressly reserved by the first courtc. Legal reason why you couldn't have brought it earlier
i. Because of joinder, jurisdiction, etc.d. Statute permits second suite. Continuing/recurring harm
i. Harm comes back or continues and causes new damages
f. Other extraordinary reason determined by courte. Issue Preclusion (aka Collateral Estoppel)
Issue preclusion involves estopping parties from relitigating particular issues that were actually and necessarily decided in previous litigation, adversely to the party against whom preclusion is sought. The same reasons of finality and efficiency apply here too; having lost on an issue once, you should fix it through appeal, not by going to some other court.
Felger v. Nichols (1977) (SC MD) [legal malpractice case] Nichols = attorney, Felger = client in divorce proceedings First suit: Nichols sues Felger for recovery of unpaid legal facts $345
a. Felger's defense is legal malpracticeb. Nichols wins $345
Second suit: Felger sues Nichols for malpractice No claim preclusion
a. Same claimb. Validc. Not same claimant/respondent (they're on opposite sides now)
Both suits in Maryland courta. In federal system, there would be a 13(a) compulsory
counterclaimb. But Maryland doesn't have it
Is there issue preclusion?a. Malpractice was already adjudicated; it was Felger's defense in
first suitb. They had to knock that down to reach the judgment they did in
the first case Felger argues that he couldn't have brought it the first time around, so
he shouldn't be barreda. Asking for way more in the second suitb. But was still able to argue malpracticec. Even if the first lawsuit had way lower stakesd. No way for Felger to win if he loses on malpractice
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Felger pleads a fine complaint, so not 12(b)(6) --> but looks for summary judgment
a. Latest you can file for summary judgment is after discovery (Rule 56)
i. No "start date" Ruling: Judgment affirmed. The district court’s final judgment bars the
matter from being litigated in the present suit between the same parties. The trial court correctly granted the appellee’s motion for summary judgment
Types of Issue Preclusion Defensive - used to defend against a claim Offensive - you are firing an arrow at defendant and can get through Mutual - same parties from previous suit Non-mutual - a different party
Mutual Non-mutual
Defensive OK (Felger)
Now OK (University of Illinois Foundation v. Blonder-Tongue)
Offensive OK (Pepper v. Davis)
OK in federal court, generally not in state court (Parklane v. Shoe)
Defensive non-mutual collateral estoppel (NMCE) lets those who weren’t part of some previous lawsuit defend against a claim by a party that was, treating the prior judgment as definitive on some issue on which that party lost.
Offensive NMCE lets those who weren’t part of the prior lawsuit use the judgment and the old party’s losing position to assert new claims against it. These doctrines prevent losing parties from relitigating he same issues multiple times after they’ve already had their day in court. Offensive NMCE is more controversial, though, because a losing party can’t always predict how new plaintiffs might make use of its loss, and also because it can’t pick the field of battle where those plaintiffs’ claims will be brought. So most state courts don’t use offensive NMCE, whereas pretty much everyone uses the defensive kind.
Panniel v. Diaz (2004) (NJ) [arbitration for insurance claims case] Car crash P collides with D (ambulance driver for hospital) P sues D and hospital Insurance company covers P and D P gets insurance company involved in arbitration for personal injuries in
separate suita. Wants first party coverage
Third party coverage from insurance company in second suit Issue in arbitration: was P's injury related to the car accident Suit is looking at proximate cause Arbitration awards P
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P wants to use award to bind D & hospital on proximate cause in second suit
Court uses Restatement test:a. Identical issuesb. Issue was actually litigatedc. Final judgment on the merits (WRONG)d. Determination was essential to the judgment
i. Could they have come to their decision/judgment/verdict without deciding the specific issue
e. Same parties or in privity (ish) The insurance contract evaluated in arbitration uses language about
whether or not injury is related to the accidenta. Court says this is close enough to proximate cause
You can have estoppel on fact questions (i.e. was the light red or green?)
Arbitration is like a mini trial with witnesses, experts, etc. Issue was essential to the judgment Are the parties the same?
a. Diaz and hospital not in arbitration i. They have no contract with Panniel, never agreed to let
random lawyer decide their caseb. They are not the same as the insurance company
Court thinks last element is satisfieda. Diaz and hospital not really one who would have to pay outb. Insurance company is the one that has to pay out in tort case
and in arbitration Insurance company rights determined by D & hospital
a. Proxy? However, it's one thing if the insurer is the only party who would lose
a. But Diaz and hospital are on the hook toob. Insurance premiums could changec. There could be other consequences for Diaz (i.e. certification for
Diaz) Court thinks all elements of issue preclusion are met, but there are
exceptions (FN 6)a. Can appeal in suit number 1b. Question of law
i. Substantially unrelated OR change in lawc. Change in proceeding (i.e. In small claims court there are no
lawyers)d. Change in burden of proof
i. Example: OJ1. Criminal trial was beyond a reasonable doubt2. Civil trial was preponderance of the evidence
e. Adverse effect on third partiesi. Couldn't have foreseen new action
ii. Lacked full opportunity in first suit
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Court: there would be negative affects on third parties (Diaz & hospital) from using arbitration award as binding
Contradictiona. Concern with third parties by court and their assertion that
they're the same partiesb. Sachs says that they were wrong the same parties
Claim preclusion - same partiesa. Same claimant shooting arrow(s) at same respondentb. Not the same for issue preclusion
Ruling: The defendant insureds are not estopped by the arbitration outcome from relitigation the issues of proximate causation in this torts action – there are sufficient countervailing interests and it would be unfair.
Final Judgment It was entered What if there was partial summary judgment, yes to liability
a. Not a final judgment (still other issues) What if partial summary judgment, yes to count III Rule 54(b) - always revisable, until you've dealt with all claims by all
parties Finality is the correct part of the Restatement test Hypo: Plaintiff sues defendant over a loan on June 1st
a. But the loan is not due for another month b. Defendant should win, against plaintiff without prejudicec. Dismissal/judgment wouldn't be on the meritsd. If they file on another suit on June 15th, the loan still isn't due
i. This shows that "on the merits" is not a requirementii. (for the Restatement test)
Why no merit requirement for issue but not claim preclusion?a. Issue is just a portion of the claim
Hypo: if a plaintiff from CA sues a defendant from NY for more than $75K in federal court
a. Defendant argues plaintiff is from NY - dismissed because there's not subject matter jurisdiction if defendant is right
b. Is this a valid judgment?c. Next day plaintiff sues defendant for the exact same thing in
federal courti. Defendant would argue preclusion
d. Requirement in Restatement: it has to be valide. Court always has jurisdiction to determine it's jurisdiction
i. Never a void judgment that you lack jurisdictionii. Can still be valid for issue preclusion
Cambria v. Jeffrey (1940) (SC MA) [contributory negligence case] Defendant's employee collided with plaintiff First case: both parties are deemed negligent
a. Contributory negligence was a complete defense for defendant Second case: no claim preclusion
a. Not the same parties
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b. No compulsory counterclaim in MA at this time Second case: not issue preclusion
a. Finding Cambria's negligence was not essential to the first caseb. Worry about accuracy - you would not have been as careful
about just dictac. Appeals
i. Cambria doesn’t want to disturb the judgmentii. Cambria could not have appeals, so we should not
disadvantage him for things he couldn't have fought in appeal
What if trial court had multiple, independent groundsa. Jeffrey was negligent & Cambria not negligent
i. Each of these findings is independently sufficientb. Neither issue is essential to the judgmentc. Courts are split on what to do in this case
i. Jeffrey could have appealedd. Restatement: you can relitigate all of it
Ruling: Judgment did not adjudicate that Cambria’s servant was negligent.
Blonder-Tongue Lab (BT) v. University of Illinois Foundation (UIF) UIF sues BT
a. Argues collateral estoppel - that their patent isn't validb. Not mutual
i. BT wasn't in first suitii. If patent had been valid in first suit, BT wouldn't have
been bound in second suit1. You always get your day in court
iii. Rule is asymmetric Offensive, non-mutual collateral estoppel
Parkland Hosiery Co. v. Shore (1979) (SCOTUS) [class action & SEC case] Second suit (even thought it was filed first)
a. Class action of stockholders (represented by Shore) sues Parkland and their officers
First suit (goes to judgment first)a. SEC sues Parklane
Claim that their proxy statement was fraudulent/misleadinga. Ask stockholders for permission to act as proxy on voting issues
for company Offensive, non-mutual collateral estoppel
a. New and controversial Ruling: None of the considerations that justify a refusal to allow the
use of offensive collateral estoppel is present in this case. The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.
Offensive Defensive
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P1 --> D P --> D1
P2 --> D P --> D2
P3 --> D P --> D3
If P wins, all other Ps will win There are always more Ps
If D wins, all other Ds will win
Consequences Incentive to wait and see
a. Other people litigate it for youb. Not a worry for defensive estoppel
Foreseeabilitya. A lot easier to guess who you'll want to sue, rather than who
will sue youb. Defensive estoppel is more foreseeable
Inconsistency a. Any time there was a prior inconsistent ruling, there's an
exception to collateral estoppelb. Offensive - danger of inconsistency is highc. Defensive - you can try to join
"Field of battle"a. Plaintiff gets to pickb. For offensive, benefits go the same way
f. Judicial Estoppel Issue preclusion is for losers Judicial estoppel is for winners
If you win on a claim, you can't argue against it on another claim New Hampshire v. Maine (2001)
Considerationsa. Later position must be "clear and consistent" with earlier
positionb. You must have wonc. Unfair to the other party to switch
IX. State Law in Federal Courta. Background to Erie
Overview Rules of Decision Act (RDA) - 28 U.S.C. 1652
a. Laws of several states Today: federal courts use state court decisions Old view
a. Legislature make lawb. Courts interpret & apply
NY Constitution of 1777- Sources of lawa. Up until the beginning of the Revolution:
i. Common lawii. Colonial stuff
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iii. English stuffiv. Unless they are "repugnant" or contrary to state
law/constitution1. Things about crown, etc. don't apply anymore 2. Marriage & property laws stay
b. Added later:i. State laws & constitutions
ii. U.S. laws & treatiesiii. U.S. Constitution
c. Reception statute - state receives and adopts common lawi. All states are common law states except Louisiana
ii. Didn't want to start from scratch iii. Dissolved connections with England, but not with each
other and the law they had Swift v. Tyson (1842) (SCOUTS) [selling of fake land case]
Tyson writes check (bill of exchange) to Norton & Keith for "land"a. But no land existedb. Real money in exchange for fake land
Norton gives check to Swift to pay off separate debt (endorses it over) Swift tries to get money from Tyson, but Tyson has already realized
there's no land Swift sues Tyson in federal trial court
a. Swift argues holder in due course (bona fide holder issue)b. It is a matter of NY state law
NY trial courts say rule doesn't apply to this case Justice Story
a. Decisions aren't laws, they're evidence of landi. Persuasive authority
b. What is law?i. Local customs of usage
ii. i.e. Poker example/hypoc. Looks to general common law
i. Common law shared by multiple jurisdictionsii. Commercial law thought to be part of customary
international lawd. Follow general rule on the topic, not necessarily state court's
construction of issue Danger that arises: plaintiff forum-shopping Legislatures don't like federal decision?
a. They could pass a statute Ruling: RDA is strictly limited to local statutes and local usages of the
character before stated and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sough, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence
Result: Forum-shopping Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer
Co. (1928)
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B&Y (TN), B&W (KY), RR (KY) There's a station and RR has exclusive contract with B&Y to allow them
on the land to get passengers from the station KY courts say this type of contract is invalid
a. Monopoly-like & against public policy Federal courts: this is valid under common law - part of property laws
a. Not against public policy - laisse-faire B&Y reincorporates in TN
a. They are originally from KYb. Under KY courts, they would have lost
Ruling: Decision on determination that liability exists is for Congress, not the court. Until it acts to establish the liability, courts should withhold creative touch. “Federal common law” or perhaps more accurately “law of independent federal judicial decision” outside the constitutional realm, untouched by the Erie decision
Justice Holmes dissenta. Fallacy in court's decision:
i. That there's federal common lawb. Every rule of law needs definite authorityc. Definite authority of state supreme courts
i. Mere existence of court means they can make the lawii. Story would have strongly disagreed
d. RDA is a delegation of authority to make new lawe. Story sees it as incorporation of common law by reference
Views on RDA New view (Holmes vision)
a. Courts make law tooi. State courts make state law
ii. Federal courts make federal lawb. No general common law
Story: RDA means you look to state courts for local statutes, local interpretation of legislation
Holmes: RDA means you have to apply state common law No general federal common law
a. Limits on what federal government can make rules about Remember: cases from state supreme court can go to SCOTUS only for
federal questions Erie Railroad Co. v. Tompkins (1938) (SCOTUS) [no general federal common
law – WWSSCD?] Tompkins injured by train on RR land Argument about whether he's a trespasser Standard of care
a. Trespasser: no duty, can't sueb. Not a trespasser: duty, can sue
Tompkins sues Erie in SDNYa. Accident was in PA, but RR is incorporated in NY
Federal courts would rule that Tompkins was not a trespasser, PA court would rune that he was
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a. RR wants SDNY to use PA standard Brandeis says Swift is unconstitutional (even though neither party raised
the issue)a. Swift was wrong about RDAb. Swift causes unequal treatment
i. Forum-shopping --> Legal uncertaintyc. Swift is unconstitutional
i. Federalismii. There are things outside federal courts
Story would agree there's no federal common law Ruling: In applying the doctrine, this court and lower courts have
invaded rights which are reserved by the Constitution to the several states. Now: guess what the state supreme court would do
The Erie guessa. Follow the state law, if there's no precedent, do what you think
they'd dob. What would the state supreme court do?
Erie Guess What would the state supreme court do? Typically, state trial courts have to follow ruling of state supreme court
unless the supreme court overrules itself a. Even if their precedent is very antiquatedb. Even if you think they would change their mindsc. Decisions are bindingd. If the losing party doesn't like it, they can appeale. Court of Appeals is still bound by state supreme courtf. Party could appeal again
i. Then maybe supreme court would change it's mind In federal court, you'll never get to a state supreme court through
appeal Federal courts can send questions over to state supreme court for
certificationa. State has to accept the request
Otherwise, federal courts are guessing what the state supreme court would do
a. They are not bound by old state supreme court decisions We want answer to be the same regardless of if the issue came through
state court or federal court and went all the way up to appeal The federal courts can be wrong
a. The legislature may pass a statute, or the supreme court can overturn their precedent
Quiz Question #2a. If federal trial court makes Erie guess and decision is appealed
to circuit court, circuit's Erie guess rulesi. But if new case comes to trial court and new things
from the state (decisions or other evidence of law) has occurred, then they aren't bound by the circuit court anymore
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ii. If circuit court disagrees, it will get sorted out in appeal in circuit court
iii. If no new law/evidence of law has occurred --> appellate court is binding
Is the Erie guess making or finding federal law?a. Not acting in creative fashionb. Trying to find it, not make it
Are you guessing what would literally happen? Or what is sound in their law?
a. Al Capone's nephew Erie wrap-up
a. Tompkins files in SDNY, accident happened in PAi. Which state's law do we follow?
b. Problem of choice of law under Eriei. NY choice of law rule at the time: lex loci belicti (use law
of the place of the tort)1. Used by most jurisdictions at the time
ii. NY --> use PA lawb. Klaxon; “Federal Common Law”
Klaxon Co. v. Stentor Electric Manufacturing Co. (1941) (SCOTUS) [breach of business agreement]
[Side note: pre-International Shoe] Stentor (NY corp.) gives business to Klaxon (DE corp.). Klaxon agrees to
give best effort to sell their products In DE, Stentor sues Klaxon in 1929, jury verdict of $100K in 1939 NY law has general interest rule --> total with interest would be $179K
a. DE does not have the same law District court:
a. NY law applies, 3rd circuit affirms b. Look at Restatement (First) of Conflicts. General law:
i. Use the law of the place of performanceii. NY is where sales were supposed to occur and,
therefore, the site of the contract breach SCOTUS:
a. Does not apply NY law (reversed)b. A federal court deciding an issue of state law must use the
choice of law rules of the state in which it sitsi. Otherwise, forum-shopping would result:
1. DE trial court --> DE choice of law --> DE law --> no interest
2. District of DE federal court --> general choice of law --> NY law --> yes interest
Ruling: prohibition declared in Erie against independent determinations by the federal courts extends to the field of conflict of laws.
a. Take away: federal court applies the law that the state in which it sits would apply to the case; the substantive law that would
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be applied by the state courts in the state in which the federal court sits
Klaxon applies any time federal court uses state law:a. Diversity cases (most common)b. Supplemental jurisdiction (state claims attached to federal
claims)c. Grable - state title question for federal question hidden insided. Incorporation by reference (i.e. takings)
Sachs Points Necessitated by problem
a. Where do we put general law?i. i.e. international law can't be governed by states
b. Swiss cheese model of lawi. Questions not answered by constitution fall though
holes to federal statutes --> state constitutions --> state statutes -->
ii. But there are things that fall through federal holes that are also not answered in state layers
iii. Old view: things pool at the bottom in general common law
Diversity jurisdiction was supposed to allow federal courts circumvent bias of state courts
a. Forum shopping Wal-Mart Hypo
Mrs. Jones falls in a FL Walmart Walmart has principal place of business in AR and is incorporated in DE Where can she sue? Klaxon:
FL (specific jurisdiction) DE Ark
Choice of Law Lex loci (FL) Interest analysis (DE) Interest analysis (AR)
Court S.D. Fla. D. Del W.D. Ark.
Non-Klaxon:
FL (specific jurisdiction) DE Ark
Choice of Law FL FL FL
Court S.D. Fla. A. Del
W.D. Ark.
Resulting Forum-Shopping Klaxon was to avoid vertical forum shopping, but enable horizontal
forum shopping a. Difference among states is significant
Remember: Van Dusen, 1404 transfer doesn't change choice of law
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Under current system, plaintiff gets to pick forum, and defendant can't change it
Klaxon made sense at the time, when interactions with out-of-staters were way more infrequent
a. Now, you're always with people from out of state Uniformity promised by Klaxon hasn't been realized
a. Many more courts to choose from Congress has responded by narrowing specific jurisdiction rather than
choice of law Federal Common Law
Erie says there's no federal, general common law Federal enclaves (states can't rule)
a. Military affairsb. Federal contractsc. Interstate cases
i. Waterii. Cross-border pollution
No general law, so Hinderlider v. La Plata & Cherry Cheek (decided same day as Erie)
United States v. Standard Oil Co. of California (1947) (SCOTUS) [military man injured]
Etzel, U.S. soldier, is hurt in accident by a car owned and operated by defendant in LA
a. Etzel is a pedestrian U.S. wants indemnification from defendant for money shelled out for
Etzel's medical care and disability pay States have law on this topic, but the courts won't use it
a. Military is special, don't want state to determine this b. Federal treasury is involvedc. Court wants uniform rule across the states
Court --> apply federal common law Passage on 927 in the book - judges need to participate in growth Court doesn't create a right to recover
a. Congress could have acted and didn’ti. But this is true in every case regarding federal common
lawb. Settle contrary practice
Use of federal common law is very expansive in theory, but in practice, federal courts are usually very hesitant to employ it
Congress follow up on this with a statute Ruling: Decision on determination that liability exists is for Congress,
not the court. Until it acts to establish the liability, courts should withhold creative touch. “Federal common law” or perhaps more accurately “law of independent federal judicial decision” outside the constitutional realm, untouched by the Erie decision
a. Take away: “Before applying a federal common rule to the case, the court must find that a federal interest requires application of federal law. Once it determines that federal law must govern
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the issue, it proceeds (in absence of a federal statute) to create it.”
3 Possible Responses: Federal court creates federal common law Impose federal rule of decision of its own creation
a. Boyle case - military contractor defense Imposes non-uniform federal rules, federal court can adopt state law as
the federal rule of decisiona. i.e. speed limits for post office trucks
Federal court can incorporate local state law as federal common lawa. i.e. National Bank charging interestb. State couldn't generate law
Sachs not certain #2 and #3 are really completely distinct Erie Review
Substantive legal issue: whether plaintiff was a trespasser or nota. Trespasser = no right to recover
Federal courts had ruled as matter of general law - not a trespasser PA courts had said before that this was a trespass Case filed in SDNY (railroad incorporated in NY) But incident took place in PA
a. Klaxon - uses choice of law rule of NYb. At the time, the standard was lex loci (place of the incident)
Lex fori - law of the foruma. General choice of law rule for procedure
Laws of the several states are rules of decision in cases where they apply
Before: what counts as laws (in terms of RDA) Now: Where do these laws apply?
a. RDA doesn't tell usc. Substance and Procedure
How do we solve the problem? Just use the general law of choice of law
a. Swiss cheese modelb. No federal law statute, not in Constitution c. Not clear state has power to dictate what federal court can do
i. When you care about states and when you don't d. Not popular post- Erie
Use Klaxon - choice of law rule of the state where you sita. This is what courts do now for issues of substanceb. Look how state laws classify the issue (substance vs. procedure)
Guaranty Trust?a. No longer good law (by and large)b. Cautionary tale on how not to solve the Erie problem
Guaranty Trust Co. v. York (1945) (SCOTUS) [SOL vs. laches case] York sues Guaranty Trust in federal court
a. Claim arising out of NY trust lawb. Wants accounting
i. Equitable remedy (origins in court of equity) Guaranty raises defense based on NY statute of limitations
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a. But does NY statute of limitations apply? Traditional rule of equity - don't use statute of limitations (that's for the
law side)a. Use equitable doctrine of lachesb. "did you sleep on your rights?"
What would NY court have done?a. Would follow NY statute of limitations even though not
equitable in nature b. Does equity differently than federal courts
Statute of limitations traditionally thought of as procedurala. They are about what goes on inside the court house
Court invents new testa. Don't use Klaxon for proceduralb. Outcome-determinative test
i. If switching state and federal court would change outcome, then you can't treat it as mere procedure --> follow state law
ii. Outcome in federal court should be same as in state court
c. Focuses less on labelsd. It's okay for form and mode to vary between courts (of how you
recover)i. Can't have true substantive agreement
e. Not procedural vs. substantive i. It's form and mode vs. right to recover
f. Policy concern of no forum-shoppingi. But if no forum-shopping, what's point of going to
federal court over state court? Anything that could happen/any rule that could exist when broken
could affect outcomea. Way too broadb. Hard to say outcome determinative ex ante (based on forecasts
rather than actual events)c. Problem only comes up when you make a mistaked. Less clear if you treat it as substantive
This case hits snags right awaya. Same time as Erie and FRCP
Ruling: Whenever the law is authoritatively declared by a state, whether its voice be the legislature or highest court, such law ought to govern in litigation founded on that law, whether the forum of application is a state or federal court and whether the remedies be sought at law or may be had in equity. Outcome-determinative test.
Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (1958) Plaintiff injured while working as contractor for defendant Defendant says plaintiff is an employee and not an independent
contractora. Wants worker's comp. coverage
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b. No fault?c. Damages capped
Who decides if they're employees or contractors?a. Judge or jury
a. Instead, they say there are "affirmative countervailing considerations"
i. A different strong federal policy may overrule no forum shopping
b. Competing policiesc. Policy of no forum-shopping vs. policy that juries are good
Essential characteristic of federal courts - strong countervailing consideration
a. We don't let states dictate everything to us How do we know what's essential?
a. Did they used to call it procedural in a way we couldn't let state boss them around
Statutes Judiciary Act and Process Act (1789)
a. In suits at common law, use modes of process in highest state court as of now (at that time)
i. Static conformity to state lawii. Overtime, state will change law, then you lose benefits
of conformity Process Act of 1792
a. Keep static conformity approachb. Equity and admiralty: civil law (continental European practice)
i. Not every state law had equity courtsii. Uniform federal standard
1. Do what equity and admiralty courts have traditionally done
c. Also have authority to issue equity rulesi. Court can promulgate new procedure rules
d. Overtime, static conformity becomes a big problem Conformity Act (1872)
a. In common law cases, do procedural stuff as of timei. Dynamic conformity - what state is now doing - updates
continuously ii. Equity stuff doesn't change
b. Pressure to create uniformity across all federal courts, regardless of what state court are doing
Rules Enabling Act (1934) (28 USC 2072)a. SCOTUS has power to create all rules in civil actions at law (not
equity) i. (they already had that authority)
b. Rules of practice and procedurec. Limits:
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i. Cannot abridge, enlarge or modify substantive rightsii. Says there's a split between substance and procedure
d. Fuse law and equity (Rule 2)e. Congress can write statutes, but SCOTUS gets to issue these
rulesi. Who writes them?
1. Judicial conference 2. Group of judges
ii. Then goes to SCOTUS1. They promulgate it2. But Congress can step in
f. Last two (REA and Conformity Act) lead to FRCP Hanna v. Plumer (1965) (SCOTUS) [service OK by FRCP, not OK by MA rules]
Hanna sues Plumer (who takes Osgood's place) in D. Mass Difference in service rules
a. Federal rule: can serve by leaving complaint & summons at dwelling with resident of suitable age and discretion
b. MA rule: has to be served by hand c. Has to be within one year of probate of will
Follow FRCP If no federal rule on point?
a. Under Guaranty Trust test: state practice rule > federal practicei. This is outcome-determinative
ii. Method of service is not an essential characteristic of federal court
Court in Hanna: limits outcome-determinative testa. Look to no forum-shopping and avoid inequitable
administration of justicei. i.e. special boost/bias cause of citizenship (Taxicab case)
But there is a federal rule on point Congress can set a rule when it's rationally capable of classification
a. Has power under Article III - inferior federal courtsb. Article I - tribunalsc. Necessary & proper clause
Dissenta. If it is arguably procedural, Congress has right to enact rule
What has congress actually done?a. 2071-2074b. Original Rule Enabling Act
i. 2072(a): rule of practice of procedureii. 2072(b): do not abridge, enlarge, or modify any
substantive rights How do we know if federal rule is actually procedural?
a. Hanna: it is procedural if it really regulates procedure (draws from
i. I.e. what you're allowed to do in real life vs. in a court case
b. Byrd carved out part of Guaranty Trust
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c. Hannah demolishes outcome determinative tests Ruling: Adoption of Rule 4, designed to control service of process in
diversity actions, neither exceeded the congressional mandate embodied in the REA no transgressed the constitutional bounds, and the rule is therefore the standard against which the district court should have measured the adequacy of the service.
Hanna I/Byrd Test Twin aims
a. Forum shoppingb. Inequitable administration of the law
Hanna II Test If there were a FR that specifically addressed the situation
Issues Iqbal (pleading) Class actions
a. State courts don't have to have class actions (VA doesn't) Flow Chart
Do federal and state courts do the same thing?a. If they're the same, question doesn't arise
Can Congress decide this question?a. Most expansive questionb. If no, we know we have to use state rule, federal government
doesn't have authority to tell you otherwisec. It's rationally related
Is there a federal statute on point?a. If yes, follow it
Is there a federal rule on point?a. (*check Hanna procedure chart)
Shady Grove Orthopedic Associates P.A. v. Allstate Insurance Co. (2009) (SCOUTS) [late interest penalty]
Sonia Galvez injured in automobile accident - treated by Shady Grovea. Assigns benefits to Shady Grove & asks for benefits b. Allstate pays (late)c. Doesn't pay interestd. Policy issues in NY
There is a NY statutory interest penalty Shady Grove sues Allstate for interest (~$500) in EDNY - federal court
for diversitya. Wants to bring in rest of class b. They allegedly add up to $5M (the minimum established by
CAFA)c. Need all class members to stay in federal court
FRCP 23(b): class action may be maintained if… NY CPL § 9.01
a. (a) [standard class action requirements like 23(a)-(b)]b. (b) class action may not be maintained to recover a statutory
penaltyc. Rationale: we don't both of these things
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Valid statute or federal rule, these things are the law No valid statute or federal rule, Hanna I/Byrd land
a. State law (under Klaxon) Majority's argument: Part II (A) (5 votes)
a. There's a conflict between §901 and FRCP 23 Allstate says no conflict
a. Not about whether you can, it's whether something is "class-eligible"
i. If not class-eligible, doesn't even go to Rule 23b. Court says eligibility & certifiability is made up
Dissent thinks §901 and 23 (34?) are talking about different thingsa. Read them togetherb. Says §901(b) is about remedies
Scalia says narrow reading of 23 to avoid conflict is not possible Argument about purpose of the rule Dissent: to avoid over-remediation Majority: evidence of intent is sparse, cannot override clear text Part II(B) - not 5 votes, but plurality (Scalia, Thomas, Roberts,
Sotomayor)a. They think Congress could have decided - rationally related to
procedureb. Hanna IIc. Valid rule and procedure and practiced. Abridge, enlarge, or modify substantive rightse. About federal as well as state substantive rightsf. Why does plurality think it's valid?
i. Deals with regulated procedure (Sibbach)ii. What regulates does not equal what it affects
iii. Analogy to joinderiv. No substantive right to be free of aggregated liabilityv. State purpose
1. We don't care if NY had procedure or substance2. Doesn't care about purposed once we figure
out what the statute doesg. Is the federal rule procedural?
Stevens concurrence:a. Doesn't disagree with validityb. Disagrees with ignoringc. 2072(B): asking is the state rule substantive or so intertwined
with substance such that it defines its scoped. Statute of limitations, burdens of proof, standards of appellate
review e. Example of this is something where you use state testf. Could you rewrite substantive statute to achieve another thing?g. Says §901 is procedural, not part of NY substantive law
i. It's about class actions, can't rewrite statutes without talking about what goes on insider a court room
ii. Not intertwined because it applies to non-NY claims
h. What does plurality say of Stevens' separation of §2072(a) and §2072(b)
Part II(C) - three votes - Scalia, Thomas, Robertsa. Go back to Sibbach
Part II(D) - 4 votes - Scalia, Thomas, Sotomayor, Robertsa. Thinking about purposes and forum-shoppingb. Forum-shopping is inevitable result of uniform federal rules of
procedurec. No law about forum-shopping, but Rule 23 existsd. REA: Fusing law and equitye. VA has no class actions - it definitely creates forum-shopping
Dissent: no conflict between federal Rule 23 and state lawa. State law is just about remediesb. If Shady Grove couldn't get statutory remedy, they'd have no
case, so they have to push for itc. Hanna I if no federal statute
i. Twin aims1. Forum-shopping results2. Inequitable results
ii. RBG says both would happen --> use state law Walker v. Armcoat Steel Corp. (1980)
Plaintiff (carpenter) is injured Respondent is manufacturer of nail Defect in nail, cause it to split off and strike plaintiff in the eye OK statute of limitations - suit must commence within two years
a. Commence means serve processb. If you file within two years, you get 60 extra days to serve
FRCP 3: case is commenced when it is filed Walker did not serve within the 2 years + 60 days Rule 4(m) - 90 days This is outcome-determinative in Guaranty Trust world Court: says there's no conflict in Walker
a. Rule 3 and OK statute of limitations are talking about different things
i. OK statute of limitation is a term of artii. Rule 3 is about when FRCP deadlines stop
1. Not dealing with state law Court faced with potential conflict, read it to avoid conflict/read FRCP
more narrowlya. This is what RBG is doing in Shady Grove dissent
Hypo: FRCP: complaints must be < 5 pages
a. Clearly procedural NY creates a new cause of action with 300 distinct elements
a. Clearly substantive
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Sachs: there is such a thing as a procedural rule that abridges substantive right, Sibbach doesn't cover this situation (although it's admittedly odd)
Going forward Difficulty now: Shady Grove was a split decision
a. What do you follow going forward? Marks Rule:
a. Follow the narrowest grounds supporting the judgmentb. Draw from plurality & Stevens?
i. Who's narrower?ii. Sibbach had 5 votes - real precedent
c. Courts are split on what to do (Sibbach v. Shady Grove)i. SCOTUS hasn't granted cert. yet
d. Marks is looking for shared narrow groundsi. Plurality doesn't share Stevens' analysis/reasoning
Hard to carry out Stevens' intertwined analysis Statute of limitations were posterchild for what would get applied no
matter where claim came from, on Stevens' analysis, not intertwined?a. But he advances statute of limitations as first example of
intertwinedb. Can't define the gray area of overlap of procedure and
substance like Stevens suggests Loose Ends
Rule 35 – Mental and Physical Examinationsa. FRCP: complaints must be < 5 pages
i. Clearly proceduralb. NY creates a new cause of action with 300 distinct elements
i. Clearly substantivec. Sachs: there is such a thing as a procedural rule that abridges
Why do we have class actions?a. To change what happens in real lifeb. People screwing each other over for small amounts of moneyc. Even though it's a procedural device
Twombly and Conleya. Tighten up on frivolous lawsuitsb. Still operates through court rule
Damage Capsa. Substantive - they affect your scope of substantive rightb. Ex. If complaint satisfies Twombly, damage cap equal infinity
i. If it doesn’t, zero money c. Procedural, but comes in form of damage cap (substantive)d. Can't frame it in what state is doing, can't get dragged into what
state does to smuggle in procedural stuffX. Final Thoughts
a. Attorney’s Fees Overview
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American Rule: you pay your own way (regardless of outcome) English rule: loser pays Certain statutes will fee-shift/adopt English rule
a. Title VII job discriminationb. Equal Access to Justice Act c. Freedom of Information Act (FOIA)
Why? a. Incentivize plaintiffs to bring casesb. "prevailing party" pays the fees
Buckhannon Board & Care Home v. West Virginia Department of Health and Human Resources (2001) (SCOTUS) [prevailing party case]
Plaintiff runs care home, WV says they're going to shut it down because it doesn't meet a legislative requirements
Plaintiff sues WV Department of Health and Human Resources for violation of ADA
While this is going on WV legislature repeals law that WV shuts down home care over
a. Case is now mootb. No remedy to givec. Injury is gone
Case is dismissed as moot a. As a matter of procedure, defendant winsb. Court defines prevailing party as someone who gets relief
Why are plaintiffs worried about this?a. Defendants can change policy during litigation to prevent
closingb. Plaintiffs risk not getting attorney's fees
People came up with catalyst theorya. How can you be sure you were the catalystb. We don't want to give money to unmeritorious claimsc. Problem: assumes plaintiff was rightd. Need to be able to know without retrying the meritse. Plaintiff was not the prevailing party here
Congress has legislated that catalyst is OK sometimesa. i.e. language in FOIA
*It is very hard to get attorney's fees from the other side*a. Very few statutes allowb. Have to be the prevailing party
Affects what kind of cases we takea. Attorneys don't want to take cases with small amount of
recoveryi. English rule is benefit to meritorious case
ii. Danger of English rule: incentivize non-meritorious cases, force settlement of people with meritorious claims
If plaintiff loses on contingency, attorneys lose money if they win, money comes from plaintiff's judgment
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a. Plaintiff's lawyers pay it bad claim, plaintiff's judgment covers lawyer's fees if it's a good claim
Ruling: It does not. The “catalyst theory” is not a permissible basis for the award of attorney’s fees under the FHAA and ADA.
b. Arbitration Overview
Alternative dispute resolution, matter of contract Arbitration vs. mediation
o Arbitration "private judging" Arbitration selected by parties, gets power to decide the
case/impose judgmento Mediation
Judge appointees Sit down and get parties to work out a solution i.e. divorce Mediator has no power to impose judgment
9 U.S.C. § 1-16 Federal Arbitration Act (FAA)o Passed to deal with judicial hostility toward arbitrationo There has to be an agreement/contracto What goes in?
Pick the arbitrator or body of arbitration (i.e. American Association of Arbitrators (AAA))
Specify the procedures - these can change a lot Informal, rough justice procedures more common Loosen rules of evidence Limited discovery No juries
There are standard arbitration rules (i.e. AAA)o Decision of arbitration is awardo Goal: want something that costs less money and time than litigationo § 2: shall be valid, irrevocable and enforceable
Save upon (except) on grounds that apply to any contract: Fraud
In the factum - about the contract itself In the inducement - about why you're signing
Durres i.e. gun to the head
Unconscionability No fair person would insist upon it Procedural
No real choice Substantive
Terms are harsh Also applies in the state court (if the transaction involves
interstate commerce) Have to be upheld like other contracts
Can't have special rules against arbitration
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Current or future disputes between parties o § 3: stay proceeding
If the issue is referable to arbitration (i.e. arbitrable) Stop litigation while arbitration is taking place
o § 4: You can file a petition to compel arbitration in a federal court Must show:
There was an agreement and other side fails/neglects Issue is within scope of agreement/arbitration
If making of agreement & failing to comply is in dispute --> you can get a jury trial
Court can hold you in contempt if you don't comply with their order
o § 7: arbitrator can summon witnesses Private person chosen by two private people can subpoena
people who never agreed to be summonedo § 9: court can confirm the award
Turn award into judgment and call out the goons You can collect now
o § 10: Factors that allow you to vacate the award Fraud on the court (deceiving courts) Partiality (i.e. turns out to be one side's cousin) Misconduct (taking bribes, etc.) Exceeded power or didn't make an award (award was unclear) Really, really wrong isn't a reason vacate an award
o § 11: correct an award Kind of like 60(a) Clerical mistake Typos Wrong matter by mistake
o §16 Appeal Interlocutory Appeals
Yes If arbitration has been denied Against arbitration can get immediate appeal
before final judgment No
Granting an arbitrationo What usually happens with breach of contract?
Specific performance Do what the contract says you'll do Here, you go through with arbitration*
Pay money More frequent in general
o Some courts; manifest disregard of the law Beyond arbitrators’ power to disregard the law But harder to prove if they don't explicitly say so
o What if you want arbitration and court says no?
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Not final, but you can still use § 16 appeal Early appeal of anti-arbitration order But if it's pro-arbitration, you have to finish case/arbitration Court want to encourage arbitration & keep it fast
AT&T Mobility LLC v. Concepcion (2011) (SCOTUS) [class arbitration case] AT&T advertised free phone, but had to charge sales tax (~$30 here) Defendants sued (or wanted to sue) alleging consumer fraud on behalf
of a class in SD Cal. Service/sale agreement had arbitration clause with class waiver - had to
do it individually CA law: waiver is exculpatory & unconscionable
a. Corp. can get away with fraud without any meaningful remedy for consumers
b. Damages too little to be worth individual case CA argument: it's just general unconscionability
a. It applies to both arbitration and litigation SCOTUS says: it conflicts with FAA
a. Conflicts with hallmarks of arbitrationb. One-on-one nature of arbitration is a basic feature & you can't
prevent people from using itc. Point of arbitration is speed
i. Class would take longer ii. Class actions can't be informal
Sachs: no one wants class arbitrationa. Hard to get out of an arbitration awardb. No possible reviewc. One-on-one argument is a little unclear
i. Why is it a basic part?ii. But arbitration requires agreement
d. Court is unwilling to say California Is lying AT&T made agreement very plaintiff friendly --> then it's not
unconscionablea. You could never be worse off if you had a meritorious claim
CA was worried that companies would take money from consumers and then buy-off potential class members/those that actually complain
CA was using public policy NOT unconscionabilitya. Not unfair but a bad idea for public policyb. But FAA says arbitration agreements are good public policy
Ruling: CA’s Discover Bank rule stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and is preempted by the FAA.
c. German Advantage in Civil Procedure Caveats
This article is from 1985 (things in Germany may have changed) Germany is not necessarily representative of whole world
Germany fact finder is judge Jury forces concentrated trial We have expansive and expensive trials
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No one system is necessarily better/worse System of trade offs
Who pays English rule (loser pays) American Rule (you pay your own way)
Experts Judges Parties/lawyers
Asks questions of witnesses
Judges Parties/lawyers
Fact finder Judges Jury/concentrated trial
Judge position Civil servant Meritocracy Subject to regular
review
Appointment or election Old lawyers Life appointment or electoral for
review
Standard of appeal De novo Jury: no reasonable juryJudge: clear error
d. Hypo: Painter v. Toyota Painter has to prove
Duty Breach Causation Injury
Also consideration of contributory negligence American lawyer has to go into all of this for discovery Rule 56 - Summary Judgment: if you have 18 witnesses to contributory
negligence Painter opposes with his own affidavit
No summary judgment Dispute of fact Jury has to decide
Rule 42 - Can bifurcate the trial Have hearing first on contributory negligence If the jury finds contributory negligence Judges don't like to bifurcate trial - hard to call jury back in
