7/21/2019 Supplement Outline Civil Pro http://slidepdf.com/reader/full/supplement-outline-civil-pro 1/32 Table of Contents Personal Jurisdiction Question..................................................... 2 Statutory Analysis................................................................................. 2 Notice...................................................................................... 11 Subject Matter Jurisdiction Question.......................................... 12 Diversity Jurisdiction................................................................................ 13 Supplemental Jurisdiction.......................................................... 1 !emo"al................................................................................... 1# $enue....................................................................................... 1% Transfer.................................................................................... 1% &orum non Con"eniens.............................................................. 1% 'rie Question............................................................................ 1( )isco"ery................................................................................. 2* Summary Jud+ment, -!ule #................................................... 2% Claim Preclusion -!es Judicata.................................................. 2/ 0ssue Preclusion -Collateral 'stoppel........................................ Personal Jurisdiction Question Intro: In order for a court to have personal jurisdiction over a defendant it must have a statutory basis for its power, and the exercise of its power must comply with due process (14 th Amendment for states, 5 th Amendment for federal overnment!" Statutory Analysis #he statute overnin personal jurisdiction for federal courts is $%&' 4" %ule 4(!(1!(a! provides that a federal court can piybac onto the lonarm statute of the state in which it sits" If the state court would have personal jurisdiction over this defendant, then a federal court in the same state will as well" 1" Analy)e the *tate statute by looin at the cause of action and decidin whether it fits in the framewor of the statute • &onstitutional +ax vs" numerated Act *tatute o numerated does not rant the courts the power to exercise personal jurisdiction to the limits of the due process clause • #hins to remember and loo out for o -ocation of the cause may have to be in the state, not international o &ontacts must be present at the time the action is commenced o #he cause of action may have to arise from the conduct (.nless the contacts are so substantial and pervasive as to allow eneral jurisdiction! 1" /istinction between arisin from the conduct and bein related to the conduct • 0rennans dissent in Helicol • *how how each side may frame what ave rise to the cause of action, i"e" the different ways to frame the conduct 2" If the state statute does not seem to rant a federal court that sits in that state jurisdictional power, then we must o on to 4(!(1!(d!"
Intro: In order for a court to have personal jurisdiction over a defendant it must have a statutory basis forits power, and the exercise of its power must comply with due process (14 th Amendment for states, 5th Amendment for federal overnment!"
Statutory Analysis
#he statute overnin personal jurisdiction for federal courts is $%&' 4" %ule 4(!(1!(a! provides that afederal court can piybac onto the lonarm statute of the state in which it sits" If the state court wouldhave personal jurisdiction over this defendant, then a federal court in the same state will as well"
1" Analy)e the *tate statute by looin at the cause of action and decidin whether it fits in theframewor of the statute
• &onstitutional +ax vs" numerated Act *tatute
o numerated does not rant the courts the power to exercise personal jurisdiction to the
limits of the due process clause
• #hins to remember and loo out for
o -ocation of the cause may have to be in the state, not international
o &ontacts must be present at the time the action is commenced
o #he cause of action may have to arise from the conduct (.nless the contacts are so
substantial and pervasive as to allow eneral jurisdiction!1" /istinction between arisin from the conduct and bein related to the conduct
• 0rennans dissent in Helicol
• *how how each side may frame what ave rise to the cause of action,
i"e" the different ways to frame the conduct
2" If the state statute does not seem to rant a federal court that sits in that state jurisdictional power, thenwe must o on to 4(!(1!(d!"
• #his rule allows federal courts to assert personal jurisdiction if the applicable federal statute
contains its own service provisions"o /ecide whether or not there is an applicable statute, and if so, whether it contains a
lon3arm clauseo ould use contacts with the entire country rather than just the state
o ere, we have an applicable federal statute, yet its lac of a lon3arm clause means
that jurisdiction is not ranted" #herefore, we must move on to our last and final hope,%ule 4(!(2!
6" %ule 4(!(2! allows for federal jurisdiction with respect to claims arisin under federal law as lon asthe defendant is served, the exercise of jurisdiction complies with the 5th Amendments due processclause, and the defendant is not subject to the jurisdiction of the courts of eneral jurisdiction of anystate" (Alien provision!
• %emember to leave the 7uestion open" If it loos lie / will have jurisdiction in another state, say
that it will stand for now and can be disproved later if he wants to chane the forumo 0urden is on defendant to show there is no other state that can exercise power ( Mwani!
&onstitutional Analysis
If personal jurisdiction is authori)ed by the statute, we must then determine whether or not the exercise of personal jurisdiction is &onstitutional" #he traditional bases for jurisdiction that have been ruled to complywith due process include presence ( Pennoyer , and affirmed in Burnham!, domiciliary status ( Milliken! andconsent (xpress (Carnival !, implied ( Hess!, and waiver ( Insurance Corp. of Ireland !!" If the defendantowned property in the state, or was found and served within the boundaries of the state, then the statewould have the &onstitutional rounds for personal jurisdiction" $urthermore, if the defendant consented to jurisdiction either explicitly or implicitly, then there are also &onstitutional rounds for personal jurisdiction"
If the court does not have personal jurisdiction over / throuh one of the traditional bases of jurisdiction,we must turn to the +inimum &ontacts test set forth by International Shoe" #his test states that jurisdictionwill comport with the due process clause as lon as the / has such minimal contacts with the forum (state
if operatin under their lon3arm, country if operatin under 4(!(1!(d! or 4(!(2!! that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. &ourts have readthis to re7uire both minimal contacts and reasonableness"
1" 0y analy)in whether the contacts are isolated and casual or continuous and systematic, and whetherthe claims arise from the contacts, one could theoretically determine whether or not the court shouldhave specific jurisdiction, eneral jurisdiction, or no jurisdiction at all"
If contacts are Continuous and Systematic (specific or eneral!o &ause of action arises out of contacts8"almost always jurisdiction
( Int’l Shoe, Burer !in !If contacts are Isolated and Casual (specific only!
o &ause of action arises out of contacts8"maybe ( Mc"eeyes,
#orld$#ide
no!
9eneral urisdiction If the defendants ties to the forum are so continuous and systematic as to act as a proxy for
presence, then the defendant miht be amenable to suit under eneral jurisdiction, even if thecause of action does not arise out of the contact"
*pecific urisdiction *ince the defendants contacts are isolated and casual, we must determine whether or not the
contacts are sufficient to warrant exercisin specific personal jurisdiction over the defendant"It is important to note at the outset that specific personal jurisdiction is &onstitutional only ifthe cause of action arises out of the contacts"
•as the defendant purposefully availed itself of the privilee of actin within theforum state such that it has received benefits and protections of the state; ( Hanson v.
%enckla!o <es
+ay purposefully avail yourself by conductin activities in the
forum or by conductin activities directed towards residents in theforum
#his re7uirement assures that the defendant will be able to
reasonably anticipate where its conduct will subject it to personal jurisdiction (#orld$#ide!
/ availed himself of the benefit of &alifornia law by spendin
three days there" nouh contacts in 0rennans opinion( Burnham3 plurality!
o =o 's unilateral contacts are not sufficient to demonstrate a
showin of purposeful availment ( Hanson! 0an account in the forum may not ive sufficient notice that the
defendant is subject to suit there
• -oo to see whether it is attached, whether it is related to
the cause of action
• /oes the defendant have a contractual relationship with a forum resident; If so,
use contracts3plus analysis (i"e" consideration of the place of neotiation, execution,and performance of the contract! to consider whether the contract solicitation,neotiation, and course of conduct support findin of purposeful availment
o /id they now when they made the contract where the company was
located;o In Burer !in , they reached out and contracted with a company, nowin
they were located in $loridao Bilateral contacts where they send thins to each other (call each other,
etc, Mc"ee!
• If this is a stream of commerce case3 meanin that a product of the defendant has
caused harm to the plaintiff only after travelin throuh the stream of commerce3 dothe facts satisfy the >&onnor or 0rennan standard for purposeful availment; ( &sahi!
o >&onnor standard ( &sahi!3 #he defendant must have intended for its
product to be mareted in the forum state in order to have purposefullyavailed itself of the forum
Foreseeability plus somethin such as adaptin product to the
forumo 0rennan *tandard ( &sahi!3 #he defendant merely must have been aware that
its product could foreseeably enter the forum state in order to satisfy the purposeful availment re7uirement of Shoe
+ay loo at as triangulated approach amon state interest,
defendants burden, and affiliatin circumstance
• 0rennan has defined the test as a slidin scale" ven if
the contacts are minuet, if the exercise of jurisdiction isextremely reasonable, then it satisfies /ue 'rocess"
Mere knoledge that product will enter stream of commerce is
not sufficient bc doesnt put on notice that may have to litiate instate (#orld$#ide!
• Is jurisdiction bein asserted based on property located within the state (!uasi in
"em!; If so, you must still analy)e the in3state property as you would any othercontacts" (Shaffer !
o 'roperty ownership is considered an isolated contact for jurisdictional
purposes
• Is this a case where the contacts are throuh the internet; If so, analy)e whether the
Internet contacts show purposeful availmento .nder the ?ippo test, the propriety of jurisdiction depends on the location of
the site on the active3interactive passive spectrum 'assive sites do not support jurisdiction
Interactive websites may support jurisdiction, dependin on the
deree of interactivity and the commercial nature of the website An active website will support jurisdiction
o hat is the %>- of minimum contacts;
'urposeful availment (7uid pro 7uo!
notice (so others can order their affairs!
proxy for state interest ( Mc"ee!
• #hins to mention
a" @uasi in3remi" Shaffer says that if jurisdiction is bein asserted based on property within
the state, you must analy)e this property as you would any other contacts1" 'roperty is considered an isolated contact for jurisdiction purposes
ii" Is there property in the forum; 0an account;iii" Is it attached;iv" Is it related to the cause of action;
b" /o the contacts ive the defendant notice that he could be served there;
2" If the court can establish that the contacts are substantial enouh that the defendant could expect to besued in the forum, the plaintiff also must demonstrate that assertin personal jurisdiction would bereasonable (#orldwide, &sahi!"
"easonableness (if there are minimum contacts, is the assertion of personal jurisdiction reasonable;!
• # factor test: (arue all factors, arue both sides, come out on one side!
• Burden on defendant ( Mc"ee inconvenience of travel not enouh, ## def had
way around inconvenience, &sahi burden of subjectin forein corp" very hih! very rare that this will be too hih
o Burer !in says that if the defendant purposefully directed activities to the
forum, the forum must be so ravely inconvenient that he is at a severedisadvantae in the litiation
If the defendants ties to the forum are so continuous and systematic as to act as a proxy for location, thenthe defendant miht be amenable to suit under eneral jurisdiction"
urisdiction 0ased upon 'ower over 'roperty
Harris v. Balk
• $acts: 0al instituted a suit aainst arris in =orth &arolina for payment of a F1GH debt, and arris
claimed that the debt had already been satisfied in a prior proceedin in +aryland"
• "ule Courts may assert jurisdiction over debts provided personal jurisdiction over the debtor
can be attained
• #he situs of a debt travels with a debtor for jurisdiction purposes" #he oriinal situs of the debt is
irrelevant
Shaffer v. Heitner
• $acts: eitner brouht a shareholders derivative suit aainst several officers and directors of
9reyhound, a /elaware corporation, ainin in rem jurisdiction by attachin their stoc in 9reyhound
• "ule Minimum contacts must e/ist in order for in rem jurisdiction to attach
o *ince jurisdiction over property involves jurisdiction over a persons interest in the property,
the proper standard is the minimum contacts standard from Shoe• *ince in rem and 7uasi in rem 1 actions are about a contact in the state and the arument is about the
contact, the minimum contacts test will most liely be met
• /oes not say anythin about reasonableness, therefore you can arue that even if the minimum
contacts are the same as in personal jurisdiction, and personal jurisdiction was not allowed, it may beallowed under a 7uasi in rem 2 action if the reason it wasnt allowed in the first place wasreasonableness
urisdiction 0ased upon 'hysical 'resence
Burnham v. Superior Court
• $acts: hile visitin &alifornia for business and vacation, /ennis 0urnham was served with process
for a divorce proceedin, and 0urnham contends that &alifornia jurisdiction violates due process
• "ule 0urisdiction based on physical presence comports ith due process1 regardless of the
defendant%s contacts ith the forum state +Scalia2 3- MA0-"I*4,5
=ew 0ases of urisdiction3 Internet
• /omain names are a companys asset
• Internet does not fit with Pennoyer , it is a world without borders
o 'urports to be self overnin
• -ower courts have developed a set of tests ('" 1413142!
o ?ippo test
/istinction between interactive websites and passive websites
ven the ?ippo test is oin to be extinct
• #hin of a domain name as property
o &an you assimilate the internet to the International Shoe testo @uasi in rem jurisdiction3 'ower of the court to resolve claims that are unrelated to the
property #he property justifies the courts assertion of power
&ourts power is capped at the value of the property
In "em or !uasi in "em I6II
• In remauthori)es the court to adjudicate claims concernin the property aainst the world
o the presence of property in a forum alters in personam to in rem
• !uasi in rem Ilitiate rihts to property aainst specific def (usually minimum contacts oay!
o cause of action must relate to property, stron state interest
o H&IS ). B&(! 33*itus of debt is wherever you can find the debtor
• !uasi in rem IIclaim doesnt relate to property, but property attached to satisfy jurisdiction
o udment capped at value of property before Shaffer , not the case anymore
o =eed other minimum contacts (Shaffer ! because usin property to essentially establish in personam
o In Shaffer , statute says the situs of a share of stoc is where the company is incorporated" *uit
is filed, 7uasi in rem II, minimum contacts is needed and not met in this case" #he /efendantshad never even been to /elaware, had no contacts with the state except for the share of stoc">bviously not minimum contacts
+inimum &ontacts for @uasi In %em 3 Shaffer v. Heitner :
• ' was stoc holder assertin breach of fiduciary duty aainst / board members" Attached stoc
accordin to /elaware *tatue placin stoc of / corporations in / and allowin attachment ofstoc" 0oard members from all over and couldnt all be sued in the same place" &orporation main place of business outside /"
o Marshall wrote majority opinionJ +inimum &ontacts must be foundJ urisdiction based on property is fictionJ every dispute involves individual rihts
&ourts must have authority to issue judments as thouh there was In 'ersonam
urisdiction
• International *hoe +inimum contacts test re7uired
o &laims to property itself are source of underlyin controversy
between parties, unusual for *tate where property located not tohave jurisdiction
o &ourt eldJ /elaware -aw was unconstitutional, didnt mention
minimum contacts" +inimum contacts didnt exist here anyway" =o demonstration of purposeful availment"
o / didnt have statute to treat acceptance of a directorship as
consent to jurisdiction
>ther states had these statutes, seems they would beupheld
Brennan <issent and Concurrence +inimum contacts re7uired, but / state court
could reinterpret the statute to include this fact" e believes if minimum contactsapplied to share holder derivative action contacts satisfied, /irectors et privileesfrom incorporatin state
• *tevens &oncurrenceJ &oncerned with notice, purchase of stoc not enouh
In rem inevitably meets the Shaffer standard" @uasi I is a stron candidate" @uasi II
more problematic" #he property itself will often count as a substantial contact between the def and the
forum state (is the property alone enouh to satisfy Int’l Shoe;!o 'roperty is the basis for the assertion of power but is unrelated to the cause of action
'roperty is a contact, no more, no less
K=ote on technoloy: count electronic contracts as if real world (email, advertisin adapted to forum!,domain name located in state of reistration (7uasi in rem 1cause of action related to property, claimsdirectly arise out of domain name, specific jurisdiction exists in that state most liely! +ore interactive asite is, the more substantial its contacts are" +easured by a C'assive3#ransactional *pectrumD establishedin -ippo
A. 3otice? as ade7uate notice iven to the /; as notice reasonably calculated, under all thecircumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections; *ee Mullane v. Central Hanover Bank /rust Co. #o mae this determination,consider the followin 7uestions:
@. Ade=uate Information /oes the notice convey sufficient information to notify the party ofhow and by when it should respond;
a" 4es. If so, proceed to the next 7uestionb" 3o. If not, the notice is inade7uate
). *imeliness /oes the notice allow reasonable time to appear;a. 4es. If so, proceed to the next 7uestionb. 3o. If not, the notice is inade7uate
. Method Is the method of ivin notice a method that one desirous of actually informin the party miht reasonably adopt to achieve actual notice; #o answer this, as Cas the mostreasonable means available employed;D
a. 3o. If there is a better means that is available and reasonably practical, then it should be employedb. 4es. here a superior method exists but is too expensive, time consumin, or
burdensome, then it need not be employed over more practical methods under Mullane. #he notice iven to the /efendant was ade7uate"
3otice Cases
Mullane
• $acts: &entral anover 0an and #rust &ompany petitioned for a judicial settlement of a trust and
provided notice by publication to all of the beneficiaries
• %ule: =otice by publication fails to comply with due process where the names and addresses of the
parties are nowno =otice by publication is sufficient in some in rem proceedins, since the notice is typically
coupled with sei)ure of property
• <ue process re=uires that notice be reasonably calculated1 under the circumstances1 to apprise
interested parties of the pendency of the action and afford them an opportunity to be heard
o /oes the notice reasonably convey the re7uired information and does it afford a reasonable
time for those interested to mae their appearance;o =otice must be the best notice practicable but individual notice is not always needed
Subject Matter Jurisdiction Question
=ote: If *#A# &>.%#loo at state law, each has a constitution which defines power of courts
Background rule state courts alays have concurrent authority ith the federal courts to hear a
federal claim unless congress e/plicitly ousts the state court of jurisdiction. +Antitrust can only be
heard by federal courts,
$ederal courts have proper subject matter jurisdiction over diversity cases involvin more than F5,HHH (2GN 1662(a!(1!! as well as cases that Carise underD federal law (2G N 1661!"
@. Article III ives the federal overnment the power to hear disputes between citi)ens of different states"In order to decide whether or not the federal court has the proper subject matter jurisdiction to hear thecase, one must therefore bein by determinin the citi)enship of all the parties involved"
A corporation is a citi)en of any state it is incorporated in as well as the state in which its principal placeof business is located" *0 1223*c+*1++. #here are three tests to determine exactly where a corporations principal place of business is"
C=erve centerD testhere the corporation decides what it is oin to do" .sually the head7uarters (9ood for
a lare centrali)ed institution lie a ban!C&orporate ActivitiesD test
'lace of activity" here they do more stuff than anywhere else" ('ossibly a smaller corp,maybe the one shareholder operates somewhere!
C#otal activityD testybrid of the nerve center and corporate activities test&onsiders all the circumstances surroundin a corporations business to discern its
principal place of business
A non2incorporated organiation
• >ld rule consider citi)enship of each memberdecreases chances of fed forum
• =ew rule: 1662(c!(1H! any state where it has its principal place of business and the state under
whose laws it is orani)ed
A person is a citi)en of the state where she is domiciled"
• /omicile is established by
• 'resence in the state
• Intent to mae that your permanent home
i" ill loo at in3state votin, school records, etc"ii" Mas3 =eed to show intention to remain
1" ifes domicile not necessarily deemed to be that of her husband
• &an only have one domicile and everyone has a domicile
• <ou retain it until you establish a new one
). hile the &onstitution only re7uires that there is minimal diversity in a suit (i"e" any defendant must be citi)en of a different state than any plaintiff!, courts have read 2G ."*"&" N 1662 to mandate complete
diversity, so that no plaintiff can be a citi)en of the same state as any defendant (Straw4ride!"
• xceptions to complete diversity include class action suits (loo at the diversity of
the named parties! and impleader actions
. If the court finds that there is complete diversity1 it also must find that the amount in =uestion is
greater than D#1EEE to ensure jurisdiction. hatever the plaintiff claims is o, as lon as the claim ismade in ood faith and it is not proved to a leal certainty that she cannot recover more than F5,HHH"
• 'unitive damaes are included, costs and interest are excluded
If the plaintiff does not have a sinle claim that exceeds the amount in controversy threshold, he canaggregate multiple claims in certain situations to et him over F5,HHH"
a" Can areate if there is one plaintiff vs" one defendanti. &laims do not have to be related in any way
b" +ultiple / v" >ne ', >ne / v" +ultiple 'loo to nature of claim (based on state law!i. &an areate if joint and indivisible
ii. &annot if separate and distinct
c" ith 5oint claims, use the total value of the claim, reardless of the number of parties
>. If there is areation of claims, it must not be done as a bad faith strategy maneuver
•
N165Lparties collusively joined or madeA district court shall not have jurisdiction of a civil actionin which any party, by assinment or otherwise, has been improperly or collusively made or joined toinvoe the jurisdiction of such court"
• ow do we determine improper collusion;
o Is assinin done for a leitimate business reason or strateically to create jurisdiction;
If assinment done ex ante and across the board with respect to all claims probably
not collusive +ultiple motivationsunsure
• -oo to all facts and circumstances
• If assinment neutral with respect to def, should be oay
• hat about strateic behavior to AB>I/ federal jurisdiction;
o >n its face N165L applied only to behavior to defeat jurisdiction
o &ommercial reasonliely to uphold even if strateic
o #imin of assinment
&risin 6nder 7urisdiction
If the court does not have subject matter jurisdiction based on diversity, we must determine if the claim isone that Carises under the &onstitution, laws, or treaties of the .nited *tatesD (Article III, N 2!" +anycourts have evaluated exactly what is necessary in order to have a claim that arises under federal law"
@. e first must determine whether the claims fit within the broad constitutional test for federal 7uestion jurisdiction"
). In the case of federal 7uestion jurisdiction, the statute that ives federal courts its power, 2G ."*"&"1661, tracs the lanuae of the &onstitution" A strict readin may lead to the belief that the courts poweris as broad as >sborns interpretation of the &onstitution, but many cases have actually narrowed thestatutes power"
#he first issue to determine is whether or not there is a federal issue on the face of the plaintiffs well3 pleaded complaint (+ottley!"
Mottley
• Is there a federal issue on the face of the ell2pleaded complaint'
• ould the plaintiff have to raise the issue in order to prove an element of her claim;
o -oo to see if there is a federal claim in the complaint
• &ant just throw in a federal issue" It must be an issue that is essential to prove the
an element of the claim"• =ot enouh to anticipate that a defendants defense will raise a federal 7uestion
• Mottley excludes from consideration federal issues that arise by way of defense
o .nderinclusive, does not provide a federal forum to an important cateory of cases where a
federal issue is important and possibly even the entire issue at trial
Arisin under only to issues that are substantial and appear on the face of the
complaint #his is how most people read it
o xpands and is independent of Mottley
Is the federal issue a substantial one'
• *inificant or of nationwide importanceJ Interstate interests;
• <oesn%t need to appear on the ell pleaded complainto As long as the case turns on a construction of federal laG
o &orrects the underinclusiveness of Mottley
• *urvives throuh footnote 12 of +errill /ow
• A narrow readin of *mith re7uires that the issue is substantial and appears on the face of the
complaint, while a broader readin allows issues that are not on the face of the complaint but arenonetheless substantial (&orrects underinclusive nature of Mottley!"
Supplemental Jurisdiction
As none of the claims can be brouht in throuh diversity jurisdiction, and only one claim can be heard bythe federal court throuh federal 7uestion jurisdiction, we must loo to supplemental jurisdiction to attemptto brin the other claims into federal court"
Article III, N 2 of the &onstitution rants federal courts the power to hear Ccases and controversiesD thatarise out of federal law" &onress passes the statute overnin supplemental jurisdiction, 2G ."*"&" N 16E,in response to the courts narrowin of the supplemental jurisdiction doctrine"
16E(a! applies to any case that arises out of a common nucleus of operative fact can be heard by thefederal court, as lon as the other two sections of the statute are satisfied"
16E(b! applies only to diversity cases, and states that the district courts do not have supplemental jurisdiction over claims by plaintiffs aainst persons made parties under %ule 14, 1L, 2H, or 24 of the $%&'"
$urthermore, they do not have supplemental jurisdiction over claims by persons proposed to be joined as plaintiffs under %ule 1L or seein to intervene as plaintiffs under %ule 24 if such jurisdiction would beinconsistent with the re7uirements of N1662"
1" &onstitutional #est: Are the claims part of one case and controversy under Article III;
• Gibbs Court has the poer to hear cases1 not just claims1 and therefore may e/ercise pendant
claim jurisdiction if the state la claim is ithin a common nucleus of operative factG
o #wo claims (one had 1661 jurisdiction, one did not! which arise out of the same conduct
o %eads Article III, N 2 as far as it oes judicial economy, convenience, fairness to litiants
o &ourts still have discretion and ill eigh against factors includin whether the state claim
predominates, whether it would re7uire the court to decide sensitive or novel issues of state
law, and whether the federal issues are resolved early in the case, leavin only a state claimfor decision
2" *tatutory test: 2G .*& 16E
• @HD+a,? presumption in favor of supplemental jurisdiction unless provided otherwise
o over all claims that are so related to the claims in the action (common nucleus of operative
fact;!o 8orm a part of the same case or controversy
o Includes claims that include 5oinder or intervention of additional parties
o ursidiction extended to full extent of article 6
• @HD+b, Anchor claim is diversity jurisdiction
o =o jurisdiction over parties who are joined usin joinder rules
• 14third party practice/ counterclaims aainst ' and ' brins in a third party
sayin if ' liable to / then 6rd party liable to '
• 1Loinder of persons needed for just adjudication (indispensable parties!
• 2H• 24
o 9::on v. &llapattah
• If anchor plaintiff wants to sue a defendant and another plaintiff wants to sue the
same defendant
• If the anchor plaintiff meets the amount in controversy1 it is ok for other
plaintiffs ho are suing under the common nucleus of operative facts not to
meet the re=uirement
• @HD+c,? district courts may decline to exercise jurisdiction (as reconi)ed in 9ibbs! based on the
followin factors:o &laim raises a novel of complex issue of state law (so rule not clear!
o #he supplemental claim is dominatin (court can stop halfway throuh case!
o
/& has dismissed anchor claim over which it has jurisdictiono In exceptional circumstances there are other reasons
• /& must state circumstances and reasons for declinin
• e dont really now what this means
Removal
1" >riinal urisdiction3 ould the federal district courts have oriinal jurisdiction over the plaintiffsclaims if they were filed in federal court;
o If so, the case may be removable, provided other re7uirements are met" 'roceed to the next
7uestion if the case is a diversity action proceed to 'art &"5 if jurisdiction would be based onthe presence of a federal 7uestion
2" /iversity 0asis3 If the claim could have been brouht in federal court based only on diversity, is thedefendant who is seein removal a citi)en of the state where the case has been brouht; (2G ."*"&"N1441(b!!
o If not, removal may be possible
6" #ime -imit3 ave 6H days passed since the defendant received service of the initial pleadin settin forththe removable claim or notice of a chane in the removability of the case;
o If so, then the defendant has waived the riht to remove the case
4" /efendant .nanimity3 ave all the defendants areed to removal;
o If so, removal will be permissible
5" $ederal @uestion 0asis3 If the claim could have been brouht in federal court based on federal 7uestion jurisdiction, then the claim is removable, provided there is defendant unanimity and the 6H day time limitfor removal has not expired" &hec to see whether there are separate and independent non3federal claimsthat can be removed alon with the federal claim"
E" +otion to remand3 If an action has been removed can a party see to remand the case to state court;>nly if a motion to remand is filed within 6H days of the filin of the notice of removal
1" /o all the defendants reside in the same state;o
Identify the residency of each defendant Individuals3 %esidency is e7uated with citi)enship (domicile!
&orporations3 %esident in districts where they are subject to personal jurisdiction"
$or multi3district states, resident only in those districts where they would be subjectto personal jurisdiction were the district a separate state
o If all defendants reside in the same state1 venue is proper in a district here any of the
defendant reside
2" Is there a district where a substantial part of the events or omissions ivin rise to the claim too placeor where property that is the subject of the action is located;
o 4es. If so1 venue is proper in any such districts
o =o" If not, and venue could not be determined based on the first test, proceed to determine
whether venue is possible under the fallbac provision
6" If no proper venue can be identified based on the first two tests, then determine venue with reference tothe fallbac provisions
o If this is a diversity only case, is there a district where any defendant is subject to personal
jurisdiction; If so, venue is proper in any one of those districtso If this is not a diversity only case, as whether there is a district where any defendant can be
found; If so, venue is proper in any one of those districts
Transfer
• /istrict court doesnt want to hear the case, so they transfer to another district court
•
2G ."*"&" 14H4o 'laintiff has established personal jurisdiction and subject matter and proper venue, but the
court can still send it to any district where it miht have been brouht ave to analy)e whether they had ' and * and venue there
o %ules of the transferor state will apply
'laintiff taes the law of the state with him
• 2G ."*"&" 14HE
o 'laintiff has screwed up, court does not have venue at the time the action is filed
o &ourt can fix this by transferrin it, or the court can just dismiss it, and the plaintiff can refile
in the riht forum
• 2G ."*"&" 1441
o 'rocedure by which a case ets transferred from state court to federal court
o &alled removal
Forum non onveniens
1" Ade7uate alternative $orum
• Is there a forum outside the federal system that is available for the prosecution of the
plaintiffs claim; If no ade7uate forum exists, a dismissal for forum non conveniens is not proper" ("ulf ;il Corp. v. "il4ert !
o ill the plaintiff face less favorable law in the alternate forum; If so, that is no
impediment to reconition of the forum as a viable alternative" ( Piper !o Are the doors to the courts virtually closed to the plaintiff for some reason,
preventin the ability to see relief in the alternate venue; If so, then the alternatevenue miht not 7ualify as an ade7uate available alternative
2" 'ublic and 'rivate Interests• /o public and private interests weih in favor of havin the case heard in the alternate forum;
o 'rivate interest factors
• -ocation of the events ivin rise to the case
• Ability to implead other parties in the court
• ase and cost of access to sources of proof, which depends on the location
of relevant witnesses and documentary evidence
• nforceability of a judment if one is obtained
o 'ublic interest factors ($actors affectin the ov and community of the alt" forum!
• hether the dispute involves local people or events
• hether the disputes is liely to be decided under the local law of the
forum
• atch out for:
o If you have a forein plaintiff, chances are there is a forum non 7uestion
o If you have a complaint dealin with human rihts, miht be forum non 7uestion
o If you have a lobali)ation 7uestion, miht be a forum non issue
!rie Question
1" /etermine if there is a $ederal %ule or statute that is on point2" #*# 1: /iversity case when a state law conflicts with a federal law that is not a $ederal %ule of &ivil
'rocedure or $ederal *tatute ($%&'!: -oo to "ules of <ecision Act, and determine whether to apply
the law of the states"a" 9rie:
i" &ateorical rule aainst applyin federal statutory or eneral common law"ii" mphasis on Ce7ual protectionD and federalism"
iii" 0roadest view3 If state law applies, the court should apply it b" "uaranty /rust :
i" *hould they apply a state law that loos proceduralii" >utcome3determinative test: x ante examination of whether the state law or rule
will affect the courts decision"1" If the state law is outcome determinative, then you should apply it
a" +any if not all procedural rules have this effect
iii" 'olicy: 9iven principles of federalism underlyin 9rie that federal courts should
respect the decisions of the statesfederal courts ouht to produce the same results
as in state courts"c" Byrd :
i" #est1" Apply state rule if it is bound up in rihts and obliations of the party"2" If a state law is merely a form or mode of enforcin a riht or obliation
a" Apply it if it affects the outcome of the case
i" %ecitin "uaranty /rust
b" .nless there are principles essential and interal to the federalsystem that warrant applyin federal law
ii" mphasi)es supremacy of federal system and fairness implicit in Article III procedures"
6" Is the procedural rule valid under the &onstitution and N 2H2 (%ules nablin Act!;a" #he %ules nablin Act ives courts the power to mae their own procedural rules
a" N2H2(a! and the C%eally reulates procedure testD (Si44ach!i. arlans concurrence in Hanna defines procedural rules as those that
reulate thins that happen in the courthouseii. anna creates the presumption that all federal rules are procedural per se
1" &ourts dont want to find the *upreme &ourts readin of 2H2invalid because they and &onress wored to pass the $%&'
2" /oes the federal rule Cabride, enlare, or modify a state3created substantive rihtD N 2H2(b!a" Analy)e the federal rule to see if it is procedural or substantive
i. >utcome3determinative test from "uaranty1" If substantially different results will arise from the application of
each rule, then it is no ood2" -oo from an ex3ante perspective because most if not all
procedural rules are outcome3determinative if you loo at them ex3 post"
ii. Hanna tells us to apply it to view it in liht of the twin aims of rie
(+odified outcome3determinative test!1" 'revent forum shoppin2" 'revent ine7uitable administration of justice
• ould application of the federal standard result in
CsubstantialD variations between outcomes in state andfederal court;
iii. arlans concurrence in Hanna says that rie was about more than just thetwin aims and that we should loo to see if the state law affects primary behavior in the real world
iv. 0rennans test in Byrd 1" #he state rule is substantive if it is bound up in the rihts and
obliations of the parties
i" If you cant thin of enforcin the riht without this
rule, it is bound up"ii" $urthers some substantive state policy;
2" 'rocedural if it is merely a form and mode of enforcement b" If the state rule is procedural, apply the federal rulec" If the state rule is substantive, apply the state rule
i. .nless a stron federal interest will be affected ( Byrd !1" i"e" riht to a jury trial
6" Instead of applyin the anna test to choose one rule over the other, we could follow the approachtaen in "asperini
a" armoni)e the substantive component of the state law with the federal proceduralrule
b" #he substantive standard is to be applied procedurally in a way that respects thefederal interest"
c" *he creates a rule throuh limited federal common law authority" #o create rules forthe courts, courts use common law lawmain authority to elaborate on proceduralrules in order to do justice in a case"
4" &onclude that the rie analysis is only done for courts sittin in diversity (N1662!a" If it is CArisin underD jurisdiction (N1661!, apply federal law b" =ot sure for protective jurisdiction, so an rie analysis miht be used
>nce decided1 if state la is to apply1 hich state la do e apply'
• If state law (statute or hihest court of state decision! on point, o with that
o /o research and loo for cases, apply the rule set forth
• If not, &ourt can certify to states hihest court (45O5H state!" =ote that only 6EO45 certification
allowin states allow certification from district courto Allows federal court to approach the state court with a 7uestion about a complicated state law
issue to et clarification
o #his is a hihly probative suested analysis, but fed court is not re7uired to follow"• $ederal court can abstain not hear the case
o x: domestic relations (divorce!
o #his is really a dismissal
• Stay of proceedings
o As the state to ive an interpretation of its laws
o #he litiant has to file a case in state court to answer a 7uestion
o &ase remains in fed court in the meantime and oes bac once answer
$ederal %ules:
• $%&' 6: &ommencement of Action
• $%&' 4: *ervice
o 4d3 aiver of service
o 4e P *ervice upon individuals in the .*
o 4f3 *ervice upon foreiners
o 4h3 *ervice upon &orporations
• $%&' : 'leadins Allowed
• $%&' G: 9eneral %ules of 'leadin
o Ga3 &laims
o Gb3 /efenses
o Gc3 Affirmative defenses
o Gd3 ffect of failure to deny
o Gf3 'leadin to be concise, direct
• $%&' L: 'leadin *pecial +atters
o Lb: In all averments of fraud or mistae, the circumstances constitutin fraud or mistae shall
be stated with particularity
• $%&' 11: *inin of 'leadins, motionsJ *anctions
o 11a3 *inature
o 11b3 %epresentations to court
o 11c3 *anctions
o 11d3 Inapplicability to /iscovery
• $%&' 12(b!(E!: +otion to dismiss
o $or failure of the pleadin to state a claim upon which relief can be ranted
• $%&' 12(e!: +otion for more definite statement
o If a pleadin is so vaue or ambiuous that a party cannot reaosonably be re7uired to frame a
responsive pleadin
• $%&' 15(a!: Amended 'leadinso 'arty may amend the partys pleadin once as a matter of course at any time before a
responsive pleadin is served or, if the pleadin is one to which no responsive pleadin is permitted and the action has not been placed on the trial calendar, the party may so amend itat any time within 2H days after it is served
o At least 2H days before the hearin date, the petitioner must serve each expected adverse party
with a copy of the petition and a notice of the time and place of the hearin
• $%&' 5E: *ummary udment
rie &ases
Swift v. /yson
• Federal courts sitting in diversity must apply state statutory la1 but not common la
• -aw is not absolute, the judes have the power to decide the correct law
o *tory interpreted the %/As Claws of the several statesD to mean substantive and not common
law
9rie . Co v. /ompkins
• $acts: #ompins, a pedestrian who was injured when a bar protrudin from an rie %ailroad car struc
him, sued in federal court and alleed that federal common law should overn the action
• %ule: Federal courts are re=uired to apply the substantive common la of the state in hich they
sit
o *wift failed to achieve the radual accumulation of Ceneral common lawD
o 9rave ine7uity because out of state residents could choose a different rule than in state
residentso *torys interpretation of the %/A was unconstitutional because it authori)ed federal judes to
mae law in areas in which the federal overnment has no deleated powers
"uaranty /rust Co. v. <ork
• $acts: <or sued 9uaranty #rust &o" in federal district court in order to avoid an application of a state
statute of limitations, which would have barred the case in state court
• "ule A federal court ith diversity jurisdiction must apply state procedural rules1 such as
statute of limitations1 if those rules have a substantial effect on the outcome of the litigation
o
>utcome3determinative test applied in order to prevent diverse parties from ainin unfairadvantaes simply because the can choose federal courto .niformity of outcomes in state and federal court was more important than followin a
separate followin rule, even thouh the rule was &onstitutional
• &onress has the power to establish lower courts and to mae laws Cnecessary and
properD for exercisin that power (Article I, N G!"
Byrd v. Blue ide ural 9lectric Cooperative, Inc.
• $acts: 0yrd sued 0lue %ide for nelience, and a factual determination of the status of 0yrds
employment was re7uired in order to determine the appropriate forum"o *tate law said the 7uestion should be decided by the jude, federal law said the jury
• %ule: Federal courts may apply federal rules1 even if state rules are outcome2determinative1 if
federal policy in enacting the rules outeighs state policy
o %ather then just applyin the outcome3determinative test, in decidin whether to follow statelaw in matters of Cform and mode"D the court should use a balancin test, weihin the state policies behind the rule aainst countervailin federal policies
Hanna v. Plumer
• $acts: anna sued in +assachusetts district court for nelience followin an auto accident, usin a
substituted service of process rather than in3hand service as re7uired by +assachusetts statute
• anna 'art I: Modified outcome2determinative test
o hether a uncodified federal judicial practice (not $%&'! is outcome determinative must be
viewed in liht of the twin aims of rie
• 'revent forum shoppin
• 'revent the ine7uitable administration of the laws
• $ound where usin the federal approach instead of the state rule would open
up a sinificant difference in litiation opportunity, viewed prospectively"
o If applyin the federal practice would not lead to these two problems, then apply it• anna 'art II: #est for $%&'
• %ule: Federal rules of civil procedure ithin the scope of the "ules (nabling Act control over
state outcome2determinative rules.
o #he &onstitution ave &onress the power to mae rules overnin the practice and pleadin
in federal courts (Article III and the =ecessary and 'roper &lause!
• *hey have the authority to promulgate any rule that is arguably proceduralG
o %A (2G ."*"&" N 2H2! ranted the *upreme &ourt the authority to prescribe rules of
procedure for federal district courts
• *he rules are valid as long as they do not abridge1 enlarge or modify any
substantive right + )ED)+b,,
• #he $ederal %ule will have to have a substantial impact on a state policy
unrelated to litiation to be declared invalid under the second pararaph ofthe %A
• *eldom the case
Pleading
1" *tate the claim and determine the elements of the claim2" In order to determine whether the complaint should be dismissed, you must first allocate the elements
of the #itle to the parties" #he eneral baseline rule is to allocate any elements not in the enactinclause to the defendant"
a" If in the enactin clause, probably plaintiff i. If outside, it is probably an affirmative defense
b" If neative, should be iven to the defendant to mae positivec" ho has the information;d" ssential to the plaintiffs arument;e" =ot probable Q plaintiff
i. Is the element consistent with our view of the world;f" 'olicy issues
i. If you want the claims to et into court, mae the plaintiff plead less" 'laintiff always has the burden of pleadin intent iven it is an essential element of the claim
6" A 12(b!(E! motion can only be ranted if it appears to a leal certainty that the plaintiff can prove no
set of facts in support of his claim that would entitle him to relief"a" hile this may seem lie a uniform standard, different judes handle these motions
differentlyi. *ome judes refuse to help parties out due to the adversarial nature of trials (Case!
ii. >thers will infer elements in a poorly worded complaint in order to deem it sufficient( &merican =urses!iii. $urthermore, %ule G(f! says that Call pleadins shall be so construed as to do
substantial justiceD b" $actually sufficient;
i. If factually insufficient, but the facts are there@. ude could issue a 15(a! conditional dismissal with leave to amend the
facts). 12(e! motion for a more definite statement
ii. If the ' cant possibly plead enouh facts to mae it sufficient;
@. If no just not a valid claimQ 9rant the 12(b!(E! motion
c" -eally sufficient;i. Assumin all the facts are true, will the claim still not be supported by law;
@. If no, then the case should be dismissedd" >ptions for insufficient claims
i. 15(a!3 &onditional dismissal with leave to amend the facts
ii. 12(e!3 &ure vaueness that eeps the defendant from answerin@. Is it fair to amend; ow many chanes will the defense have to mae;iii. /ismiss by rantin the 12(b!(E! motion
4" &an there be any %ule 11 sanctions;a" *o best of person%s knoledge1 information and belief1 as this claim formed after an
in=uiry reasonable under the circumstances'
b" Applies to B%< paper filed R&'# discovery documentsc" as there been a violaion of %ule 11;
i. /id the attorney sinin the filin conduct a reasonable pre3filin in7uiry;ii. as the filin been made for an improper purpose, such as harassment, delay, or to
increase costs;iii. Are the leal contentions made in the filin supported by the law or by a
nonfrivolous arument for the Cextension, modification, or reversal of existin lawD;@. =ovel aruments must be made in ood faith
iv. /o the factual alleation or denials have (or are liely to have! evidentiary support;d" 9iven a violation, can the court impose sanctions;
i. ave 21 days passed since the motion was served on the adverse party;@. If so, has the adverse party withdrawn the challened filin;
a" *ome courts have imposed sanctions even if the offendin part wasremoved, demonstratin the court still retains common law powerabove and beyond %ule 11
ii. as the court directed the attorney to show cause why it has not violated %ule 11(b!;If so and if the court finds that %ule 11 has been violated, it may enter sanctions
• Accordin to %ule (a!, there are three inds of pleadins
o Complaint
'ut your claims before the courto Anser
/efendant answers
o "eply
'laintiff replies to the answer
• #raditional role of pleadins
o =otify the other parties of the claim
o *et out factual alleations
o =arrow the issue
• $%&' have procedures that do all of these thins, not all functions iven to the complaint
o >nly notice and disclosure of evidence
7hat does it mean to have a legally and factually sufficient claim'• &omplaint3 A statement of facts which if proved by the plaintiff to be true, entitles plaintiff to relief,
under the substantive law, unless the defendant can interpose a defense that would absolve him or herof liability
o If your complaint is not leally and factually sufficient, the court may ive you a chance to
amend your complainto If it is still insufficient, it will not survive a 12(b!(E! motion
• Snow the difference between a pleadin and a motion
o +otion attacs the form or sufficiency of leal documents that are before the court
• hat you have to say in your complaint depends on your burden of alleation
o &ourts follow certain rules in allocatin elements
*tatutes
• %ule G(a!o A pleadin must contain
*hort and plain statement of the rounds upon which the
courts jurisdiction depends, unless the court already has jurisdiction
A short and plain statement of the claim showin that the
pleader is entitled to relief A demand for judment for the relief the pleader sees
• G(b!
o 'arty shall state in short and plain terms the partys defenses to
each claim asserted and shall admit or deny the averments uponwhich the adverse party relies
o If a party is without nowlede or lacs sufficient information, the
party can state so and it counts as a denial
• G(c!3 Affirmative defenses
o /efendant has the burden of raisin these defenses, no matter what
the claim is
• G(d!
o Averments in a pleadin to which a responsive pleadin is
re7uired, other than those as to the amount of damae, are admittedwhen not denied in the responsive pleadin
• G(e!
o ach averment of a pleadin shall be simple, concise, and direct"
=o technical forms of pleadin or motions are re7uired
• G(f!
o All pleadins shall be so construed as to do substantial justice
"iscovery
Is the material re7uested discoverable under the $ederal %ules;1" Is the material relevant to a claim or defense of any party in the action; #he material need not be
admissible at triala" +ust mae a specific re7uest to the court in order to et material relevant to the subject
matter and not simply to the claim or defense b" &ourts are worin out the difference between what is relevant to the subject matter and
the claimsi" Intent of the law was to narrow the scope of discovery
ii" *ome say that relevant to the claim or defense means information that isloically related to the elements of the claim or defense
1" #oo hard of a definitionc" hat is relevant to the claim or defense;
i" Information must be logically connected to the claim or defense
1" *imilar to personal jurisdiction 7uestion of how do you now whendefendants conduct with a forum arises out of or is related to the claim
2" Is the material protected from discovery by the attorney3client privilee;a" /oes the material pertain to a communication;
b" /id the communication occur in confidence exclusive of any third parties not party to the privileed relationship;
c" as the communication between an attorney actin as such and her client;d" as the communication for the purpose of ivin or seein leal advice;e" as the privilee waived by disclosure of the communication to third parties outside of
the privileed relationship;6" Is the material protected from discovery by the wor3product doctrine;
a" -eal thouhts3 /oes the material contain the mental impressions, conclusions, opinions,or leal theories of a representative to the party;
b" #rial preparation3 ere the materials prepared in anticipation of litiation;c" 'reparer of +aterial3 as the material prepared by or for the party receivin the re7uest
or by or for that partys representative;d" *ubstantial need3 &an the party re7uestin the material demonstrate that they have a
substantial need for the materials to prepare their case;e" >ther means3 &an the party re7uestin the material demonstrate that they are unable
without undue hardship to obtain the substantial e7uivalent of the materials by someother means;
• Idea now is that you will have notice pleadin (thin re7uirements!, you let the plaintiff et to discovery
o +ay thin this increases costs considerably
o If you dismiss cases at the et o, then discovery is a cost
<et, it may brin about settlements, because the parties reconi)e the wea issues
that can be settled on
• 'hilosophy and rules of discovery have chaned in the last five years
o asy access to information used to be a bi point for American courts
o /iscovery was blamed for eneratin litiation where claims didnt exist, eneratin costs,
which led to a bi chane in discovery practice and attitudes towards it
• +ore sanctions imposed on parties for discovery violations
"ule )D?depositions before action or pending appeal
• &annot be used to fulfill %ule 11 obliation ( In re 8ord !
• Allows pre3filin depositions only to perpetuate testimony (where a witness is oin to die or be
unavailable!• ithout pre3filin discovery possible that ' wont file suit
• ave to conduct own investiation
*hould federal rules be able to authori)e pre3filin investiation;
• &osts: another opportunity for harassment
• 0enefits: some claims that wouldnt be filed would be filed or vice versa
"ule )H+a, mandatory disclosure
• After filin a complaint, parties must automatically exchane certain basic information
o =ames and contact info of each individual likely to have discoverable information that the
disclosin party may use to support claims or defenses unless solely for impeachment (nonexpert witnesses!
o <ocuments (data compilations and tanible thins!
'roblem: et rid of documents in usually course of business
o 3ames of e/pert itnesses
• ow helpful is this;
o can eep thins merely relevant to subject matter out
o only thins relevant to claims and defenses in the case is mandatory (##8, Cummins!very
o 0iest limitation on what you can discover is the concept of relevance
Any information not privileed relevant to the subject matter of the litiation
whether or not admissible at trialo =ow you are limited to discovery materials relevant to the claim or defense of the party
+ust mae a specific re7uest to the court in order to et material relevant to thesubject matter and not simply to the claim or defense
&ourts are worin out the difference between what is relevant to the subject matter
and the claims
• Intent of the law was to narrow the scope of discovery
• *ome say that relevant to the claim or defense means information that is
loically related to the elements of the claim or defenseo #oo hard of a definition
hat is relevant to the claim or defense;
• Information must be logically connected to the claim or defense
o *imilar to personal jurisdiction 7uestion of how do you now when
defendants conduct with a forum arises out of or is related to the
claimo +ost parties seem to cast their re7uest in terms of the narrower rule and very 7uicly mae
their ood cause re7uest
• hat documents are not admissible;
o earsay
Anythin that you did not personally observe or hear
e cant cross examine the actual observer or listener
o 'rivilee
*pousal, psychiatrist
0locs information that is clearly relevant because some other social value is at stae
o or product protection
'rotects anythin a lawyer does in preparation for a trial
/ont allow other parties or lawyers to free ride off your effortso 4ou can get material even if the information you seek is not admissible1 as long as it ill
lead to information that ill be admissible
• $roportionality
o ow does the court now whether a particular party is enain in extravaant discovery;
o .nder the discovery rules and under %ule 1E, jude now plays a sinificant supervisory role
8o can you get voluntary e/change of information'
• "ule E?<eposition +of any person1 including party, +last1 to fill the gaps1 go back to
interrogatories if you need to clarify,
o -ie a mini trial, have a court reported who transcribes testimony, 7uestions orally posed
o &an mae objectionswill often stip to allow this
o -asts for hours and usually only one day (special approval for loner!
o *anctions if party is frustratin deposition
• "ule ?Interrogatories +this should probably be second,
o >nly proper to parties, ased by counsel
o &an be used to discover other sides leal theorymiht want to as for this first so you now
how to then proceed with and tailor discovery, now who you want to aso Inefficient way to et information, better to as for documents
o &ant as more than 25 7uestions (includin sub parts!
o /iscovery device that allows you to as the other side to identify and produce documents and
other material thins relevant to caseo ardware, software, companys filin system, inventory system
• "ule #?$hysical or Mental (/amination
o &ourt order needed, limited to parties or person under the leal control of a party
• "ule H "e=uest for admissionJJJ +this should probably be first,o Asin the other party for a statement that taes some fact out of the issue
o Admit to certain facts so you dont have to prove it in trial (other party will just admit to it if it
will be proved anyway!o &an use to authenticate documents
o &an be asin for leal theory but framin as admissions rather than open ended 7uestion
>rderin: re7uest for admissions (easy, inexpensive!, interroatories, document production, deposition,interroatories
8o does the court supervise'
• "ule )H+f, discovery conference to develop discovery plan
• "ule @@ pre3filin investiationvery serious, must meet obliations in ood faith, many
opportunities for sanctions that can be awarded (/oesnt apply to discovery!
• "ule D3 'rovides a set of sanctions, which can be severe
o &ourt can cut off discovery, impose monetary sanctions
• hat are your obliations under %ule 1E and %ule 2E;
o /ay 13 $ile complaint
o /ay3 LL3 %ule 2E(f! CconferenceD
&urrent rule only re7uires you to confer, rather than meet
&an confer by telephone, probably e3mail
o /ay 1163 ritten plan for +andatory /isclosure (%ule 2E(f!!
• lectronic /iscovery
o >n /ec" 1, new rules of &iv 'ro will o into effect and overn electronic discoveryo hat do these rules do;
/irect the parties, as a part of their 2E(f! conference to discuss electronic discovery
o #ries to mae clear that electronic information is discoverable
'reviously we thouht it constituted a document or thin that could be obtained
throuh voluntary disclosureo >ne of the ey provisions is that data must be produced in a form that is Creasonably usableD
to the re7uestin partyo &an you email documents to a court;
<es, %ule 5(e!
Summary Jud#ment$ %Rule &'(
Intro: In a %ule 5E motion, the movin party must prove that there is no enuine issue as to any materialfact and that therefore, they are entitled to judment as a matter of law" udes have varyin opinions as towhat the movin party must prove before the burden shifts to the non3movin party"
1" ho is main the motion and what are they tryin to et rid of;2" hat issue of fact miht exist;
6" hat evidence is in the record; hat evidence isnt in the record;o If witnesses, do you now what they are oin to say
o Is the evidence admissible;
4" 9o into the standards
o Celote: +uch easier standard to meet
%ehn7uists opinion
• Allows the movin party to submit a prove itG motion which would shift
the burden to the nonmovin party
• It is enough to assert that the non2moving party cannot prove facts to
create a genuine issue of material fact
hites concurrence
• 'laces a heavier burden on the movin party by sayin a Cprove itD motion
is not sufficient
• +ust deal substantially with the discovery record, looin for the aps"
• +ust also loo at circumstantial evidence that may not be admissible
o /etail the inadmissible evidence and state how if they brin in the
person as a witness, it may be admissible
• A conclusory assertion is no burden at all. +ovin party must survey the
entire record includin those pieces of evidence that miht not officially bein the record
0rennans /issent
• eaviest burden on the movin party
• +ust affirmatively demonstrate that the nonmovin party lacs the evidence
necessary to prove its claimo +ay mean deposin the other parties witness to show their answers
would not prove the claimo -ie Addices
• If you dont examine the evidence and affirmatively demonstrate that it isnot enouh to prove the claim, should be dismissed
5" &onclusiono /istrict &ourts have enerally applied this the way %ehn7uist set it out, allowin prove it
motions" At this point, the burden would shift to the nonmovin party"
>nce the burden is shifted, the nonmovin party must o beyond the case to show
that she has evidence upon which a jury could, readin the evidence in a liht mostfavorable to her, resolve the factual issues in her favor"
• If the evidence is not presented off the bat, then state how the burden
shiftin isnt inappropriate or simply pushin the expense to the plaintiff atan early stae because the plaintiff should have discovered and brouhtforth the evidence at an earlier time
• &an as for more time, %ule 5E(f!
Rule 5
• Allows any party, whether he has the burden or whether he does not have the burden of production, to
move for judment before the jude, on the basis that no factual issue is in dispute and as a matter oflaw, judment is warranted
• &an use it to dismiss particular claims, dont need to use it to dismiss the entire case
• hen should a %ule 5E motion be ranted;
o 'art (c!3 hen there is no enuine issue as to any material fact and that the movin party is
A material fact is anythin you need to establish one of the elements of the claim
*hould we use the standard of materiality for our definition of relevance in %ule 2E;
• If we were to say you could discover only material facts, we wouldnt be
allowed to discover a lot
• A push to alin them, which would help defendants and hurt plaintiffs
Celote: Corp. v. Catrett • $acts: &hared with several claims for asbestos poisonin that lead to the death of +r" &atrett, &elotex
moved for summary judment on the rounds that +rs" &atrett failed to produce evidence to supportthe claims
• %ule: In a summary judgment motion1 a moving party may meet its burden of persuasion by
demonstrating that the nonmoving party failed to supply sufficient evidence of a genuine dispute
of material fact
• &elotex arued that there was nothin in discovery to lin up its product to the decedents worplace in
the /istrict of &olumbia
• ow does &elotex support its motion for summary judment; ('" GH!
o 'ut in no factual support
o An assertion that plaintiff laced evidence to prove her case at trial
o 0ecause plaintiff has burden of persuasion, should also have the burden to prove the elements
of her case 'laintiff responds by brinin in more evidence, when they could have just said that
&elotex failed to foreclose the possibility that the jury could draw an inference in plaintiffs favor on a material fact
• Also could have ased for a %ule 5E(f! continuance
• C'rove itD motions are permitted after &elotex
o *inals to the courts that they can use summary judment as a docet device even when there
are issues where the jury can reasonably draw inferences in the plaintiffs favor
laim Preclusion %Res Judicata(
A# I* # %.- >$ '%&-.*I>= I= # %=/%I=9 &>.%#
es 7udicata *Claim Preclusion+1" xplain what the motionin party is tryin to preclude2" $irst it is important to note that we always loo to the rules of preclusion in the renderin court" If the
renderin court has specific rules, the rules must be followed"6" In order to find claim preclusion, the movin party must show that case one ended in a valid, final,
judment on the merits, that both cases involve the same claim or cause of action, and that there ismutuality"
4" Balid3 %es Moinesa" A decision is valid if the renderin court had ', *+, and ave the defendant proper noticeb. (ven cases that have been decided ithout proper jurisdiction have res judicata value1
at least until they are judicially annulled1 vacated1 or set aside
5" $inal udmenta" hat if decision has been appealed in $1 but the appeal is not final;
i" *ome courts ive preclusive effect even if a case is on appeal b" 12(b!(E!
i" udment denyin 12(b!(E! is not finalii" udment rantin 12(b!(E! is final
c" xamples of non final judments include preliminary injunctions and temporary restraininorders and denials of 12(b!(E! or %ule 5E motions
E" >n the meritsa" $ailure to prosecute, failure to state a claim usually not considered on the merits
i" *hows that you may not have a claim b" /ismissals for improper venue or lac of personal jurisdiction are not on the meritsc" If there is evidence heard, and the decision is based on the evidence, it is on the merits
" Identical claims;
• A claim that should have been brouht in forum one is precluded from bein brouht in forum 2
(Any claim that is transactionally related should have been brouht!
•
#he test most but not all states use to determine whether or not a claim is the same as one previously decided is the transactionally relatedG test established in ush
o ssentially the same test used in N 16E in that we as if the claims arise from a
Ccommon nucleus of operative factD If they did, then they are the same for purposes of %es udicata
-oo to see if there are similar witnesses and evidence
'ressure on plaintiff to brin all transactionally related claims
• =ot precluded from brinin a second lawsuit on the basis of injuries
that result from conditions that were not nown at the time of thelawsuit (Asbestos cases!
o :eneral rule is that hen plaintiff goes into a court of limited jurisdiction1 she is not
barred from later adjudicating a claim that as barred from forum one
=ot sure if she went to federal court that they wouldnt decline to use
supplemental jurisdiction Also applies to old 7uasi in rem rule3 If the recovery was capped at the value of
the property and this wasnt enouh, she could sue in another forum where shehad personal jurisdiction for the rest of the judment
• Arguments against granting "es 0udicata
o +aybe the claims arise out of the same facts, but the roup bein injured is different
o /idnt have a chance to litiate in the first forum
o /rastic nature of res judicata and the foreclosure of relief to a lare number of paintiffs
• &ompulsory counterclaims
o If they have a mandatory compulsory counterclaim rule, then the claim should have come up
in the first actiono &ross claims are typically not re7uired
G" #he rule of mutuality says that claimants must be the same in forum 2 as in forum 1 to insure that a party will not benefit from a judment if they are not bound by it
a" +ust be the same parties or parties in privityi" 'rivity is just a leal relationship: two individuals that stand in the same Tleal shoes
so much so that one represents interests of another ii" hen a party ac7uires an interest in the subject matter, is a leally appointed
representative, is a party who actually controlled or participated in litiation in thefirst action or where a commercial relationship exists between the parties
b" If the counsel in party two met with the counsel in party one, mention that they may use thisto arue that she was a party to the first case
c" 0e careful of class actions" +aybe the plaintiff in forum 2 was a member of a classrepresented in forum one
)ssue Preclusion %ollateral !stoppel(
1" xplain what the motionin party is tryin to precludea" >ffensive non3mutual claim preclusion; /efensive;
i" If offensive non3mutual, tal about Parklane and how they allowed it but wereworried that litiation would multiply and et out of hand
2" In order to find issue preclusion, there must be a demonstration of identity of issue
a" As the word CissueD is such a vaue term, the framin of the issue by each side is a major
factor in decidin issue preclusion" b" %ecite the prior courts rulinc" *tate how each side would characteri)e the issued" arlier too a very precise approach and re7uired common sense identity
i" %unnin a red liht is not the same thin as speedin
ii" =ow we are more liely to allow issue preclusion on an ultimate issue of fact thenre7uire the demonstration of an immediate issue of facte" +ust be very sure that the issue is identical because we are worried about the virus problem
6" If the court finds that the issue is identical to an issue in the first case, they must then determinewhether the issue was actually litiated in forum one"
4" Issue must have been actually decided in forum one5" Issue must be essential to the judment in forum one
a" Alternative rounds the case could have been decided on; b" as the issue a necessary element to provin the tort;
i" i"e"3 If nelience, / could win if they were not nelient or if ' was nelient,therefore neither is essential to the judment
c" /irected verdict miht also help this issueE" ntitled to respect;
a" -oo at the prior court" ont respect small claims courts, etc"" &ourts are more reluctant to allow the use of offensive non3mutual issue preclusion
a" >ffensive issue3preclusion is a lot more suspicious3 Parklane
i" &ourt doesnt want people to just wait to see the judment in the first suit and thenturn riht around and sue the same defendant
ii" $ear of there bein too many lawsuits and less effective litiationiii" /iscretionary factors
1" -oo at 7uality of prior judmenta" /id the party have a full and fair opportunity to present their case;
i" hat did the prior forum loo lie; hat type of court; b" ith offensive, jude will also loo at if the plaintiff could join in
the first actioni" /id they now about the second defendant;
ii" 'ossible that the jude miht have decided not to hear the joined claim for discretionary reasons
c" /id the defendant have the full incentive to litiate their case;i" as the use of issue preclusion foreseeable
1" If a overnment suit, probablyii" If the first one brouht a claim for 1HH bucs, they didnt
have full incentived" /id defendant have all the full procedural opportunities to litiate;
i" *ame rules in first forum and second forum;ii" ould the outcomes be similar;
e" ould a rulin be inconsistent with the rulin of other courts onthe same issue or is the rulin of the prior court inconsistent withthe rulins of other courts
b" As courts are reluctant to allow the use of offensive non3mutual issue preclusion, unless the
court believes there is a very stron showin on all of the discretionary elements and that the party could not join the first lawsuit, they will probably no rant the plaintiffs motion"
Issue 'reclusion &ases
Parklane Hosiery Co. v. Shore
• $acts: *hore, a stocholder in 'arlane osiery &o" brouht a class action aainst the latter allein
that 'arlane had issued a materially false and misleadin proxy statement in connection with a merer
