CIVIL PROCEDURE OUTLINEFall 2013

I. Intro: Except for matters where SCOTUS has original jurisdiction per Article III, we ask (a) does this fall within the Constitutional limits of federal judicial authority? If so, then (b) has Congress decided to delegate this authority to the district/appellate court in a jurisdictional statute? State law delegates authority to state-level trial courts.

a. Under Article III, the 9 allowable fed. level cases and controversies are those:i. arising under federal laws, treaties, or the Constitution

ii. with foreign relations implications: involving ambassadors, consuls; US citizen vs. international party; involving admiralty and maritime jurisdiction

iii. dealing with harmony between states: where two states are opposing parties; where a state and out-of-state citizens are opposing parties; interstate land grant cases

iv. where the United States is a partyv. diversity cases

II. Diversity Jurisdiction under 28 USC §1332(a) district courts have jurisdiction over civil actions where matter in controversy is above $75k and is between citizens of different states or between a US citizen and a foreign national (not a legal permanent resident). Anyone can object, re: div. jurisdiction, at any point

a. Justifications : People generally choose state vs. fed courts based on rules of procedure and evidence, plus presence/absence of circuit opinion binding district courts. But there’s also concern with in-state bias. Plus, access to fed. courts encourages investment in new markets.

b. Strawbridge v. Curtiss (1806) established the complete diversity rule: if any plaintiff is a citizen of the same state as any defendant, no diversity jurisdiction. We aren’t touching the outer Constitutional limits.

c. Minimal diversity test—could each plaintiff sue each defendant in dist. court, if we count foreign aliens as additional parties?

d. Determining citizenship: The party invoking diversity jurisdiction has the burden of proving diverse citizenship. We care about citizenship as of the date the complaint was filed.

i. Mas v. Perry Citizenship in a state requires that a United States citizen be domiciled there—have “fixed and permanent home” where you plan to

remain. Until Mrs. Mas acquired a new domicile, she was a citizen of Mississippi, despite having left MI with no plans to return.

ii. You have one, and only one domicile. US citizens who have established a domicile outside the country aren’t a citizen of any state for the purposes of 1332 (can’t anchor diversity jurisdiction). We disregard foreign dual citizenship for US citizens and look only at their state citizenship (per Molinos Valle)

iii. Under §1332(c) a corporation is a citizen (“resides in”) States where it’s incorporated, and where it has its principle place of business

1. Hertz Corp. v. Friend held principal place of business is at the “nerve center,” usually headquarters (not just an office where the Board meets.) Got rid of the “business activities” test

2. Unincorporated entities that can sue and be sued (trade unions, charities, etc.) take on the citizenship of all their individual members (per Carden)

3. You can’t collusively create diversity jurisdiction by assigning a party your interest for that purpose, per §1359 (as interpreted in Kramer v. Caribbean Mills)

4. Local governments are often incorporated, and these “municipal corporations” are treated like any other

e. Amount in controversy : We give plaintiff benefit of the doubt for claims made in good faith unless it’s a legal certainty that they cannot recover over $75k

i. Freeland v. Liberty Mutual If a fed. court finds that the matter in controversy is exactly $75,000, not one penny over, they have to remand to state court.

ii. AFA Tours Courts can raise issues with diversity jurisdiction sua sponte. Since there was no legal certainty that π’s claims did not exceed jurisdictional minimum, summary judgment was improper

1. Concerns with federalism can’t be delegated to the partiesiii. If the eventual verdict is for $75k or under, this doesn’t automatically

show bad faith. Verdict stands, but π can’t typically recover costs, per §1332(b)

f. People acting on behalf of infants or as executors of an estate are ‘residents’ of same state as infant/incompetent party/decedent. §1332 allows for aggregate claims regarding a “common and undivided interest” (i.e. jointly owned property) and also has provisions on class action suits.

III. Subject Matter Jurisdiction (federal question jurisdiction) a. Black letter: Article III: Dist. courts have jurisdiction over civil suits arising under

Constitution or of laws of the US i. 28 USC §1331: If you have a valid complaint involving a substantive

matter of federal law, it triggers federal jurisdictionb. History: No general Congressional grant of federal jurisdiction until the late 19th

century. Justifications for the grant include promoting uniformity of fed. law, encouraging judicial expertise in interpreting fed. law.

c. What does it mean, in Article III, for a case to “arise under” federal law?i. Osborn v. Bank of the US (1824) Congressional charter creating ∆ bank,

along with its right to “sue and be sued,” is antecedent to every legal relationship ∆ enters (thus lawsuits “arise under”). Grant of federal jurisdiction implied in the charter is constitutional.

ii. Coehns (1821) ∆s used federal statute as a defense. VA rejected their interpretation, ∆s appealed for fed. jurisdiction. When a case involves a material issue of federal law, it triggers “arising under” jurisdiction b/c decision “depends on construction of” fed law/Constitution. Even the possibility of a federal issue is enough.

1. Verlinden held Congress may confer federal jurisdiction over any case that might call for the application of federal law.

d. How far does Congress actually go? Per §1331, to arise under federal law, the proposition must be a well-pleaded version of the plaintiff’s complaint.

i. Court will consider only the elements of the cause of action. Federal defenses to non-federal claims are not enough to get you removal.

ii. Franchise Tax Bd.—case qualifies for removal under §1331 when: 1. Creation test: Federal law creates cause of action π is asserting.

Even if those claims fail later, the federal court keeps jurisdiction2. OR the well-pleaded complaint establishes that relief for π depends

on resolution of a substantial question of federal law (even if the cause of action itself is created by another law)

iii. Mottley (1908) Plaintiffs brought a contracts suit into fed court b/c it was very likely ∆s would try to use federal law to get out of a contract, and a Constitutional issue would then arise. But since the federal issue was extraneous to π’s well-pleaded complaint, SCOTUS held that anticipating a federal defense isn’t enough for jurisdiction under §1331.

1. Can we sue for declaratory judgment on how to interpret federal law, as a way of expanding §1331? Skelly held no end-runs—fed. issue has to arise in a well-pleaded complaint for traditional relief.

iv. Eliscu (1964) 28USC§1338 confers fed. jurisdiction over any matter arising under federal copyright law, with the same test as §1331. Also forbids state court jurisdiction over claims arising under patent laws. However, there were no allegations of infringement in Eliscu—just a dispute over whether contract conferred ownership of copyrighted songs.

1. Am. Well Works held that a suit for defamation (competitor ∆ told π’s customers that π was infringing patents) can’t be said to arise under patent law. “Suit arises under the law that creates the cause of action,” in this case state law.

2. Smith v. Kansas City (1921) held that even though state law created π’s cause of action, the case arose under per §1331, because his legal theory depended on a Constitutional question

3. Merrell Dow π brought a negligence suit alleging failure to comply with federal drug labeling requirements. Because the labeling statute didn’t create a private right of action, federal interest in the suit was too “insubstantial” to support fed. question jurisdiction.

a. Overwhelming predominance of state law issues might preclude §1331 jurisdiction even when the cause of action is technically federal. See Shoshone Mining Co.

v. Grable & Sons (2005) SCOTUS affirmed that a land claim dispute could be removed to dist. court, even without federal cause of action, because plaintiff’s claim depended on whether sale of land was in compliance with fed. tax statute. The proposition of federal law was embedded in π’s well-pleaded complaint. Test for substantial question-based federal jurisdiction:

1. Does the state-law claim necessarily raise a stated, substantial, disputed federal issue? (Yes=federal interest in uniformity_ The meaning of federal statute “appears to be the only legal or factual issue contested” in Grable.

2. Is there a federalism issue, or can the fed. court hear the case without disturbing the vs. state judicial responsibility balance?

3. U.S. has a valid interest in upholding land title transfers from tax sales. No conflict w/ Merrell because a federal cause of action is sufficient for §1331 jurisdiction, not necessary. Different decision in Merrell could flood courts w/ §1331 transfers. Grable won’t.

vi. Gunn v. Minton (2013) Plaintiff sued his lawyer for malpractice (state tort cause of action) in mishandling a patent case. TX SC said the claim turned on a question of patent law, so fed. courts had exclusive jurisdiction under §1338. Per the Grable test, federal issue is disputed but not “substantial.”

1. Substantiality inquiry considers the importance of the federal issue to the federal system as a whole. State court applying patent law to the facts of Gunn is a hypothetical exercise (case-within-a-case) with no significance outside the case itself.

2. Legal malpractice claims are common enough that we’re worried about floodgates here. Gunn confirms that relatively few cases will qualify for federal jurisdiction through the Grable test.

e. Supplemental Jurisdiction—what if §1331 jurisdiction is available for only some claims? 28USC §1367 allows supp. jurisdiction for claims “so related” to §1331 anchor claims that they “form part of the same case or controversy.

i. Exceptions: no §1331 jurisdiction for claims made: (a) by πs against ∆s brought in under Rules 14, 19, 20, or 24; (b) by parties joined as πs under Rule 24; (c) people seeking to intervene as πs under Rule 24

ii. Pendent jurisdiction —plaintiff’s complaint contains some claims with a basis for federal jurisdiction, and some w/ no such independent basis

iii. UMW v. Gibbs (1966) If π’s claims derive from a common nucleus of operative fact, and the fed. claim has enough substance to confer subject matter jurisdiction on its own, the federal courts have discretionary power to hear the connected matters together. Judges may dismiss state claims if state issues substantially predominate, or there’s a jury confusion issue.

1. Even if our federal issue eventually fails, district court didn’t necessarily exceed discretion, & can “finish up” adjudicating state claim after colorable federal claim anchored pendent jurisdiction.

2. Justifications for the Gibbs “nucleus” test—judicial economy, convenience, fairness to plaintiffs

iv. Exxon Mobil (2005) In a class action diversity suit, can a federal court exercise supp. jurisdiction over πs in the case whose claims don’t satisfy the amount-in-controversy requirement? Yes—so long as one well-pleaded complaint alleges a sufficient amount, that π’s claims can anchor the claims of all other πs for the purposes of §1367

1. Anchor claim w/ sufficient amount in controversy indicates that the whole dispute is important enough to warrant federal courts’ attention. One claim outside the original fed. jurisdiction doesn’t contaminate every other claim.

a. We’re more likely to accept contamination theory re: issues of diverse citizenship than amount req. See 9/2/13 notes.

2. Acting like the claims are indivisible (a single civil action) is inconsistent with the idea of supplemental jurisdiction

v. Pendent party jurisdiction: Not as broad as pendent claim. It would be constitutional for a dist. court to hear π’s substantial fed. claim vs. D1 and closely related state claim vs. D2 because the case satisfies the Gibbs test.

vi. Ancillary Jurisdiction —a plaintiff or ∆ has injected a claim lacking independent basis for federal jurisdiction after initial complaint. (Congress didn’t preserve the ancillary/pendent jurisdiction distinction in §1367)

IV. Removal Procedure : (general removal statute = 28 USC §1441)a. Justifications: Official rationales are, (1) remove threat of local bias (2) litigant

equality—give both ∆ and π a say in where their case is heard. In practice, removal is mostly tactical.

b. Deadlines: Defendants mostly have to seek removal within 30 days of service. §1446 makes an exception for diversity cases—they get a year to remove, longer if plaintiff has acted in bad faith to prevent removal

i. Bright v. Bechtel held that π cannot block removal by disguising the federal nature of her claim

ii. Forum state bar: an in-state ∆ cannot remove a diversity action, but does their presence block removal completely? ∆’s presence has been ruled a procedural defect, wouldn’t necessarily preclude removal—no conclusive answer yet on whether an in-state ∆ is a procedural or jurisdictional defect

c. Unanimity requirement: ∆s’ counsel all have to sign the notice of removal, barring cases with Congressional exceptions, like class actions

i. Davis v. City of Shreveport held that failing to get a properly joined defendant’s consent rendered removal (based on fed. question, §1441) procedurally defective. When D2 timely moved to remand based on its refusal to consent, §1447(c) mandated a remand to state court.

d. Filing: notice of removal, containing the basis for removal (plus any necessary details not included in π’s complaint), is filed with the federal court. A copy of the notice must go to the state court clerk. All adverse parties must be notified in writing. Then the state court can “proceed no further” per §1446(d)

e. Remand: plaintiffs have no say over whether ∆ tries to remove, but they can ask the federal judge to remand the case to state court

i. When the fed/state claims are totally unrelated, and a state claim does not share a common nucleus or trigger fed. jurisdiction in any way, the judge can use discretion to kick individual claims back to state court (very rare)

ii. §1447 authorizes remand of entire cases, for jurisdictional or procedural defects in ∆’s removal. Plaintiffs have 30 days to move for a remand

iii. §1447(d) bars appeals to remand ruling orders based on §1447(c): defects in removal procedure, lack of subject matter jurisdiction. Appeals are allowed for class actions, other narrow exceptions.

1. Thermtron Products held district court’s remand due to an “overcrowded docket” was improper

f. Counterclaims: What if the original claim is based in state law, but the ∆’s answer asserts a claim for relief against plaintiff that is based in federal law? Plaintiffs can’t remove under §1441. Generally ∆ can’t remove on counterclaims either.

i. Exceptions for ∆ remov. on counterclaims incl.§1454:Patent/copyright lawg. Plaintiff attempts to defeat removal: (option 1=don’t assert any fed claims)

i. Giamatti held that 2 ∆s (incl. MLB) were added as parties “in name only” to avoid removal. Court may disregard nominal defendants for purposes of removal under the doctrine of fraudulent joinder. Nominal parties have no interest in result of the suit, or no “actual control over the subject matter.”

ii. Shamrock & Gas Corp. held that πs may not remove based on a federal crossclaim by ∆ because Congress has only authorized removal by ∆s

iii. §1447(e) allows dist. courts to deny plaintiffs’ joinder of parties who would destroy subject matter jurisdiction.

V. Personal & Property Jurisdiction must be (1) authorized by statute and (2) consistent with the 14th Amendment’s guarantee of due process before a court can enter judgment. Historical basis of pers. jurisdiction: ∆’s presence within a territory.

a. 28 USC §1738, Full Faith and Credit statute, imposes obligation for all courts (state and fed.) to give state court judgments the same binding effect they’d have in the rendering state—provided that the court rendering judgment had a recognized basis for personal jurisdiction

b. In Personam: someone can be compelled to physically show up in court if: they’re domiciled, physically present, or consent (waiving jurisdictional limits)

i. Express consent can be before-the-fact (i.e. contractual). Implicit consent works too—and may be shown by ∆’s continued litigation.

c. Quasi in rem: court has power over property, may attach as basis for jurisdictiond. Pennoyer v. Neff (1877)—without ∆’s consent or valid service of process within

the State, a state court judgment doesn’t constitute due process of law. Proceedings cannot extend beyond state’s territory for judgments against people or property. Enforcing in personam judgment against a non-resident, absent party by land sale is unjust and substituted service by publication is okay for proceedings “substantially in rem.”

i. How does this work for corporations? Consent theory= you need a state’s consent to transact business if you’re not incorporated there. So you can require consent to service of process through an in-state agent as a condition. Presence theory: if a corp. conducts enough activity, they’re “amenable to process” (no clear test, applied without much analysis)

e. International Shoe Minimum contacts test: we’ll examine quality and nature of contacts. None of this presence nonsense. Shoe’s systematic & continuous interstate activity is enough—they were enjoying the state’s benefits, protections. Contacts support specific personal jurisdiction—claims arising from/related to ∆’s contacts with the forum state. We need very substantial contacts to support

general jurisdiction (out-of-state corp. might expect to be sued for any cause of action, no hardship for them to defend there)

i. Quality = contact (a) related to litigation that (b) reflects purposeful dealing between interstate parties. Quantity= frequency and volume of dealings

ii. Burnham suggested that general personal jurisdiction from extensive contacts might apply to corporations only, not individuals

iii. Hess v. Pawoski transacting business alone does not always imply consent. ∆ must have purposefully availed itself of benefits and protections before we can say they’ve subjected themselves to jurisdiction. Unilateral contacts from π or others are not enough. MA can force drivers on MA roads to consent to jurisdiction for lawsuits related to their activities there

1. There’s a circuit split on whether it’s Constitutional to extract a corporation’s consent to general personal jurisdiction as a condition of registering to do business. Some say that it’s not discriminatory to put out-of-state corporations on the same footing as in-state ones by requiring appointment of an agent—even for service of suits unrelated to in-state activity.

iv. Calder v. Jones ∆ wrote a defamatory article in FL, but knew it would be circulated in CA (where π lived and worked). An out of state act that ∆ knows will cause harmful effects in-state supports specific jurisdiction

v. McGee Offer re-insurance offer sent to policyholder in CA was deliberate reaching out that supported jurisdiction over the insurance co.

vi. Burger King If a corp. reaches out to forum state and contracts, contemplating future consequences within the state, it’s constitutional to authorize personal jurisdiction when that contract’s breached. ∆s had ongoing rlxnshp w FL franchise, had agreed that Fl law governed dealings

1. Allstate v. Hague State’s interest in adjudicating an interstate contract created by phone may support jurisdiction check textbook

f. State Long Arm Laws: specific jurisdictioni. Keeton v. Hustler Magazine held that ∆ distributing magazines within

state was purposeful availment, and the contact was enough to support jurisdiction even though the forum state wasn’t one of ∆’s main markets

1. States may open up their courts to πs who don’t have minimum contacts, but want a forum to sue ∆s (who have necessary contacts)

ii. Gray v. Am. Radiator Water heater exploded, injured π. The valve manufacturer’s only contact with Illinois was the injury. Court held

manufacturing inseparable from injury; a tort is enough to support jurisd. No significant difference because ∆’s benefits from state law were indirect

1. Long-arm jurisdiction even though ∆ had not acted in IL, sent goods there, or known/anticipated its product would end up there

iii. Asahi Metal Does introducing goods into stream of commerce, knowing they’ll likely be imported to the forum state, support jurisd.? No; contact must come from “action of ∆ purposefully directed toward forum state”

1. O’Connor’s plurality held that “mere awareness” that your goods may end up in forum state isn’t enough to show purposeful availment. Evidence that ∆ seeks to serve that particular state market (advertising, special design) might help

2. Concurring Justices held that it doesn’t matter if you’re using a flunky—foreseeing and benefitting from forum state sales is purposeful availment even if products aren’t distributed directly

iv. McIntyre v. Nicastro NJ relied on Asahi’s language about “expectation” and stream of commerce to say that UK corp. had purposeful availment. Reversed. We’re siding with O’Connor: actions, not expectations, let a state submit a foreign ∆ to jurisdiction. Asahi doesn’t override Denckla’s purposeful availment test, just indicates you can be held liable if you seek to serve a foreign market regardless of whether your agents have entered.

1. Because ∆ targeted the US generally, fed. govn’t could maybe authorize jurisdiction based on contacts with the entire country. Dissent says we should consider targeting US = targeting all 50 indiv. states (not allow escape from liability through flunkification)

v. World-Wide Volkswagen held that a manufacturer’s foreseeability that consumers might take their product to another state isn’t enough to support jurisdiction.

g. Long arm laws & general jurisdiction “a fairly exotic creature” –C. Nelsoni. Goodyear v. Brown (soccer bus case) Can you sue the ∆’s French branch

for something they did in France because there’s a US branch in NC? No; we need foreign companies to have continuous and systematic affiliations with the state, such that they’re essentially at home in the forum state

1. Does “at home” work like determining domicile? (Company’s place of incorporation and principal place of business, for subj. matter jurisdiction) We won’t really know until SCOTUS clarifies.

ii. “Continuous and systematic affiliation” at work:

1. Perkins Philippine mining corp. that set up shop in Ohio was sufficiently affiliated to be subject to gen jurisdiction when π brought a claim unrelated to ∆’s contacts with the forum state

2. Helicopteros ∆’s financial dealing in TX weren’t enough to support gen. jurisdiction for wrongful death suits

h. Technological contacts: Community Trust online banking case held that there’s no substantial connection between creating accounts for 3-4 KY residents and the underlying cause of action (trademark infringement). So we don’t need to discuss whether issuing passwords would constitute purposeful availment

i. Zippo held that there are 3 categories of sites with different levels of intentional interaction for jurisdictional contacts:

1. Yes, contacts: active sites that complete whole transactions online2. Maybe, depending on facts (like volume of business): “Interactive”

sites, where info travels, but transactions are done by mail, etc.3. No: “Passive” sites that transmit info one way (i.e. reading news)

i. Only once we know that there are minimum contacts to support jurisdiction do we weigh factors like forum state’s interest in redress for its citizens, enforcing substantive law/policy, inconvenience to ∆ who is forced to defend away from home (determining whether exercising jurisdiction comports with fairness/justice)

i. It’s constitutional for a state to respect forum selection clauses barring special circumstances that create “fundamental unfairness.” It takes a lot for a state to find these clauses unreasonable and hold them invalid, even when presented as take-it-or-leave-it. Bremen v. Zapata, Shute

1. Corp. predictability of litigation forums lower transaction costs and savings from reduced litigation for consumers

j. When a court does not have jurisdiction over the ∆, they may attach in-state property for quasi in rem jurisdiction. Maximum damages are set at value of the property in court-ordered sale. Statutes may allow for attachment of property unconnected to the cause of action. If a court asserts quasi in rem jurisd, we ask:

i. Does state law purport to authorize this?ii. If yes, is it within Constitutional bounds? (just like in personam)

iii. Harris v. Balk Attachment of a debt conferred valid jurisdiction. (Debt treated as movable property that followed parties.

1. This was in 1905. Today, merely having a creditor travel through the state is not enough contact to support jurisdiction

iv. Shaffer (1977) It makes no sense to have different standards of jurisdiction for in personam and quasi in rem proceedings. The Shoe minimum contacts test will now govern actions in rem too—the basis of jurisdiction must be sufficient to exercise authority over “the interests of persons in a thing.” 14th Amendment rights can’t rest on rem/personam classifications.

1. Quasi in rem used to be useful to proceed against someone who didn’t have minimum contacts, but did have attachable property. Now we might proceed quasi in rem for a tactical advantage (i.e. if providing notice of service of process is easier)

v. Territorial basis of jurisdiction strictly enforced. Transient presence counts1. Grace v. MacArthur valid service of ∆ in plane over AR airspace2. Burnham v. Superior Ct held that in-state service is enough to

support long-arm style jurisdiction. They can grab you once you step over the state line. Overwhelming weight of tradition, etc.

a. But presence of a corporation’s agent isn’t the same. We won’t treat corp.s like they go everywhere an agent goes.

k. Fifth Amendment Due Process Clause restricts personal jurisdiction for the fed. courts. It would be constit’l for Congress to authorize jurisdiction over any ∆:

i. who has minimum contacts with the country as a whole (or any state)1. possible exception for ∆s who would suffer a truly massive burden

from having to litigate in the forum. ii. who is served within US territorial boundaries (territorial sovereignty)

iii. who consents to a federal district court’s personal jurisdictionVI. Venue The Constitution sets few limitations for state venue regulations (which county

within a state π can file suit in). Claims with a common nucleus of fact may be allowed in through (discretionary) supplemental venue—interest of judicial efficiency

a. 28 USC §1391 If all ∆s are residents of one state, any district where any ∆ lives is a proper venue for suit. §1391(c) and (d) decide residence for people based on domicile (includes aliens admitted for legal residence).

i. (c) Legal entities reside wherever a court has personal jurisdiction over them w/ respect to the particular action. §1391(d) says we decide if a corp. resides in a given district by asking if it has sufficient minimum contacts for that district to exercise personal jurisdiction if the district were a state.

1. If a corporation has minimum contacts with the state as a whole, per Shoe test, but doesn’t have enough contact w/ any one district, it resides in whichever district it has the most significant contacts

2. We ignore foreign ∆s for the purposes of venue. §1391 applied only to US-resident parties

3. If there’s absolutely no proper venue under first 2 sections (very very rare) we fall back on: any district where the court has personal jurisdiction over any ∆ (seriously, don’t count on this)

4. Under §1391(b)(2) venue is proper in a district where a substantial part of the events or omissions giving rise to the claim occurred, or where a substantial part of the property in the claim is located…

ii. even if the defendant didn’t purposefully target the venue. See Bates v. C&S Adjusters: Bates incurred a debt in PA. The creditor referred it to C&S, a PA collection agency w/ no NY contacts. Bates moved to NY, and the post office forwarded a collection notice from C&S. Bates brought suit in NY for illegal debt collection practices. C&S couldn’t get s dismissal for improper venue because we only consider location where events occurred. If collectors prefer not to be challenged outside district of the debtor’s original residence, “envelope can be marked ‘do not forward.’”

b. Forum non conveniens—a court may resist imposition even when the jurisdiction is authorized by black letter statute. Courts weigh relative advantages/obstacles to a fair trial, though presumption is to let π’s choice of forum stand. Discretion available in rare cases, mostly to cut plaintiffs off from using choice of court statutes to harass/inconvenience their adversary. We consider ‘local interest,’ court’s familiarity with applicable law, etc.

i. Gulf Oil v. Gilbert ∆ has to show their burden outweighs π’s forum choiceii. Piper Aircraft v. Reyno What if the dist. court thinks another country

would be more appropriate? Can the court invoke forum non conveniens even though venue was proper, effectively forcing π to go overseas? Venue statutes usually give π a choice of courts, but that sometimes “tempts” plaintiff to resort to choosing the most inconvenient court for their adversary. “Justice blended with harassment.” The Scotland plane crash action was (admittedly) filed in the US b/c favorable liability laws. SCOTUS agreed: we give πs presumed choice if they’re in their home forum but when foreign πs (decedents) “come to” the US we can’t assume their choice=convenient. Therefore, a foreign π’s forum choice deserves less deference (poss. flood of tort cases). Dist. court got the evidence/local interest arguments right. Go to Scotland if you really wanna sue that bad.

1. Superseded by consensus that §1404 denies courts possibility to dismiss when venue was proper, they can only transfer the case

c. Transfer: Under 28 USC §1401(a) a district court may transfer any civil action to any other district where it might have been brought, or any district to which all parties have consented for the convenience of parties or the interests of justice

i. “Interests of justice” lets courts consider things like access to witnesses, parties’ forum choice, parties’ access to forum, speed to trial/docket congestion, community’s relationship to dispute, court’s familiarity w/ governing law, and any presuit venue agreements (usually upheld)

1. Nelson thinks courts might enforce contract for exclusive forum selection, if π ignored it/∆ moved to transfer to enforce the clause

ii. Hoffman v. Blaski Issue: Can a court where action was properly brought transfer, on ∆’s motion, to a district where π had no right to file originally? ∆s argue that if they consent to jurisdiction after π has brought the case, the action might have been brought anywhere ∆ wants to consent to. 7th Cir. vacation of transfer affirmed: power of a dist. court to transfer an action under 1404(a) doesn’t depend on “wish or waiver of ∆ but, rather, upon whether the transferee district was one in which the action ‘might have been brought’ by π.” We’re not going to let ∆s control venue. No indication that Congress had such a “discriminatory purpose.”

iii. VanDusen Rule State choice of law doctrines travel with cases transferred to another state’s district court under §1404, providing that there was personal jurisdiction over ∆. If a diversity case is properly brought in dist. court 1 (in state 1), but the court decides to transfer venue under 1404(a) to dist. court 2 (state 2) SCOTUS has held that district court 2 should apply the choice-of-law doctrine of State 1, not state 2.

1. This means πs can choose which choice of law doctrines will apply, if they have multiple valid forums. Incentive to shop around for π-favorable choice of law doctrines, even if it’s inconvenient to everyone and you know it’ll get transferred somewhere else

VII. US state courts are expected to follow federal interpretations of federal statutes. And federal courts are expected to respect the interpretation of the state’s highest court as to the meaning of the state’s written laws, per the Rules of Decision Act: (Judiciary Act §34(20)) federal courts are bound to follow “laws of several states” in cases where they apply. What does that mean?

a. B&O RR Co. v. Baugh (1893) In absence of related state statutes, the relationships between train co and employees were governed by “general” tort law when an employee was negligently injured by another employee (fellow servant rule). Federal court felt free to reach their own conclusion, regardless of what the state’s courts said.

b. Swift v. Tyson (1842) Should BY courts’ understanding of contract law govern in a federal diversity case? Tyson refused to honor a bill of exchange (pay Swift) because he had accepted the bill based on some Maine speculators’ fraud—he argued his obligation was unenforceable. Held that the Rules of Decision Act section is “strictly limited to local statutes … and does not extend to contracts and other instruments of a commercial nature” that are interpreted by “doctrines of jurisprudence” rather than legislature. Federal courts are not required to follow state level precedent on any “general aspects” of the common law.

c. Erie v. Tompkins (1938) Facts: Tompkins was walking home along the RR tracks in PA. Local law regarded Tompkins as a trespasser; PA courts would only hold RR to a duty of no “wanton negligence.” Posture: Judgment for Tompkins at fed. district court in NY (diversity suit) affirmed: “in absence of local statute [federal courts may] exercise their independent judgment as to what the law is.” Reversed. SCOTUS Reasoning: When fed. law/Constitution don’t govern, the law of the state must apply. It’s “not a matter of federal concern” whether that law was declared by the state’s courts or by its legislature. We’re going to impose “vertical uniformity” between state and federal courts. Initial purpose of the Rules of Decision Act was to ensure that when federal law did not control, the federal courts exercising diversity jurisdiction would apply written and unwritten laws of the state as their rules of decision. Swift’s incorrect interpretation led to:

i. Forum shopping/ Discriminatory outcomes: “grave discrimination by noncitizens against citizens” because out-of-state πs got to select court/laws that would apply to their case. Equal protection issue, general confusion, lack of uniformity, injustices.

ii. Holmes criticized Swift b/c each state’s constitution gives their highest court lawmaking authority. What they say is law, regardless of the fact that legislature can later on overrule it. Fed. courts have to respect those laws. They can’t meddle by disregarding some laws based on which branch of lawmaking authority it comes from.

1. (Little dogmatic? We’ll never say a statute is wrong about content of the law the same way we say a court’s decision is wrong)

iii. By getting rid of ‘vertical’ forum shopping via Erie decision, we’ve in-creased horizontal forum shopping (trying to get your case into a different state.) Bird held that if there’s a federal interest in horizontal uniformity, we can classify something as procedural, for Erie purposes. I.e. we have policy reasons for uniformity in whether certain things are tried to judge vs. jury across federal courts. Even though it’s clearly substantive, we’ll fudge it. (Rolled back some in later cases)

iv. In Nelson’s view, there’s no answer in Const’l law whether federal courts must follow state precedents on questions states could address by statute, but have been left to unwritten law/judicial precedent)

d. After Erie: So now you’re a judge who wants to know what law applies to your case. You ask yourself:

i. Does the Constitution answer the question, implicitly or explicitly?ii. If no, does a federal statute enacted by Congress answer the question? If

yes, and if the statute is Constitutional, you have to follow the statute.iii. If no, does a rule from the SCOTUS under the Rules Enabling Act

answers the question? You follow it if the rule is valid in the sense that:1. It’s Constitutional2. It’s within the bounds established by the Rules Enabling Act: “gen-

eral rules of practice and procedure and rules of evidence” that do not “abridge, enlarge, or modify any substantive right.”

iv. When no federal law answers the question/otherwise displaces state law, the Rules of Decision Act (interpreted by Erie) tells you to do what courts of the relevant state would do if the matter is “substantive” for purposes of pure Erie analysis. If it’s procedural, for purposes of Erie analysis, you can fill in customary practice of federal courts or other federal procedural common law, even though state courts would do something different

1. For borderline cases: reference the “twin aims of Erie”a. discourage forum shopping between state & federal courtsb. avoid inequitable administration of the law for in- and out-

of-forum-state parties (vertical uniformity)e. Guaranty Trust v. York If a state statute of limitations has run out, can a fed. court

hear the diversity suit? No. The state made recovery unavailable. Federal courts can’t step in and say “they deny enforcement of your right, but we’ll allow it.” Outcomes should be substantially the same, vertically (state to federal courts)

insofar as legal rules determine the outcome, so we don’t have a “double system of conflicting laws in the same state”

i. Erie means that if a state claim happens to go to fed. court, we don’t want a different verdict than there would’ve been in the state court down the street. In other words, we don’t want a determinative effect on the bottom line. But states don’t have authority to regulate minutiae of federal courts

1. Outcome Determinative Test a. Limitations periods can be interpreted as substantive or

procedural. Guaranty Trust held that state limitation statutes are substantive, because if π who couldn’t have brought suit in state court won in federal court, that would be an outcome determinative difference

b. Congress never gave fed. courts “power to deny or to create substantive rights” when state law says otherwise. But remedies is completely different, according to Guaranty

f. Hanna v. Plumer In a diversity case, should service of process go by state law or Fed. Rules? Does it mater that the rules are made by SCOTUS rather Congress, under the Rules Enabling Act? π filed suit against the executor of ∆’s estate by leaving summons with his wife at his house. MA statute required hand delivery, but Rule 4(3)(2) said it was valid service. ∆ moved for summ. judgment on grounds that the action couldn’t be maintained, was brought in violation of MA law. District court granted motion, reasoning that state law controlled service of process (certainly outcome determinative ex post). Upheld on appeal, Rev’d by SCOTUS: Rule 4’s constitutional, and federal rules should control service of process. If something is arguably procedural, Congress has the power to regulate it within federal courts—like service of process. Not defining a litigant’s rights, just the procedure for enforcing those rights. Of course procedural rules affect the rights of defendants, but Rule 4 doesn’t change how the court will actually adjudicate those rights. We also don’t use Erie to decide whether a Federal Rule is valid (Proper inquiry: Constitutional? In line with the Rules Enabling Act? This takes no account of any conflicting state rules.) We’re in box 3.

i. Clarifying the Outcome Determinative Test: At the appeals stage any procedural rule can obviously change the outcome. That’s not what we mean by “outcome determinative.” We should use an ex ante viewpoint—is this the kind of thing where a difference between federal/state courts

would influence a π selecting forum, or a ∆ considering removal? If yes, it’s probably substantive.

1. πs won’t shop forums based on rules like how process is served. That’s how we know it’s not substantive (where variance at state vs. federal level raises equal protection issues). Federal courts can do whatever the hell they want on the procedural issue

VIII. Commencing Suit—Service of Process, Notice, & Opportunity to be Hearda. Purpose of pleadings: (a) give other party notice about nature of a claim/defense;

(b) identify baseless claims; (c) set out each party’s view of the facts in order to; (d) narrow the fighting issues

b. Rule 4: Basic procedure for filing a motioni. 4(d) Defendants who waive service of process get more time to answer

ii. 4(e) Notification of suit1. 4(3)(2)(b) allows copy of notice to be left with someone of

“suitable age and discretion” at the defendant’s houseiii. 4(k) authorizes federal personal jurisdiction, deals with territorial limits of

service check1. 4(k)(1)(A) Long-Arm Piggyback Provision. Serving summons or

filing a waiver of service establishes jurisdiction over a ∆ who is subject to the personal jurisdiction of a state court wherever the district court sits. Federal courts conduct the same analysis that their state’s courts would, asking:

a. Does state law purport to authorize jurisdiction over this ∆?b. Does the US Constitution prohibit the state from doing so?

2. 4(k)(1)(B) 100 Mile Bulge Provision: Parties joined under Rules 14 or 19 (relatively few) may be served anywhere within 100 miles of the courthouse.

a. Even if the ∆ doesn’t have the minimum contacts for state jurisdiction, the federal court can drag them in provided that the ∆ has 5th Amendment contacts.

3. 4(k)(1)(C) Get the Terrorists Provision. If Congress authorizes it, federal courts can assert jurisdiction for a suit arising from “international terrorism” based on service anywhere in the nation

4. 4(k)(2) Sneaky Bastards Provision. When a claim arises under federal law, but the ∆ isn’t subject to the jurisdiction of any one

state, they may be haled into court on the basis of minimum contacts with the US as a whole.

iv. 4(m) within 120 days of filing complaint in district court, π must serve summons and a copy of the complaint. Failure to serve within 120 days means a dismissal unless π cannot show “good cause” for failure

v. Mullane v. Central Hanover NY law may not authorize binding judgments without notice that’s reasonably calculated, under totality of the circumstances, to let interested parties know of a pending action. Send a letter, guys. The “gesture” of publishing something in the local newspaper isn’t enough when you have some of the trust beneficiaries addresses.

1. Balancing test: Your form of notice must be reasonably certain to actually inform, or at least no “substantially less likely” under the circumstances than other feasible, standard methods.

a. Due diligence, given cost/benefit analysis, is fine. We recognize there are diminishing returns from “heroic efforts” to notify.

i. With a small class of beneficiaries who have similarly interests, due process may be satisfied by notifying “enough” parties that interests of those who aren’t notified will be represented “by proxy”

2. Jones v. Flowers If you have reason to think a certified letter did not actually serve notice, you have to take reasonable measures like sending a non-certified letter to satisfy due process.

c. Opportunity to be heard—can judgments affect property before ∆ gets to court?i. Potential controversy: SCOTUS has not ruled on whether attachment of

property to establish quasi in rem jurisdiction satisfies due process. It might, because ∆ has the opportunity to dissolve attachment by consenting to in personam jurisdiction

ii. Sniadach held it’s a violation of due process to freeze someone’s wages before they have the opportunity to be heard. Massive hardship for ∆

iii. Fuentes v. Shevin extended Sniadach to property besides wages. No issuing writs for seizure of “wrongfully detained” goods at the same time ∆ is served with notice. ∆ must have a chance to be heard on the merits before being deprived of a property interest.

1. Dissent points out Firestone Co. retained title to goods until the balance was paid off. Williams v. Walker 2.0

iv. Mitchell v. WT Grant Statute allowing creditors to get pre-hearing sequestration upheld because of provisions to minimize risk of wrongful property deprivation:

1. Writ required judicial authorization2. And affidavit from π (they could end up on the hook for perjury)3. And a post-seizure hearing was immediately available for ∆s,

where plaintiff would have to prove their allegationsv. CT v. Doehr Statute authorizing a prejudment attachment of ∆’s property

(house, in this case) without prior notice or hearing, is a violation of due process. Although π filed an affidavit, there’s no requirement for bond or extraordinary circumstance to justify (the house isn’t going anywhere.) SCOTUS applied the Matthews factors:

1. What are the property interests at stake?2. What’s π’s interest in the property? Does the govn’t have an

interest in providing more protections for him?3. Does the procedure create risk of erroneous deprivation? Would

additional safeguards make a difference?d. Limitations —in some sense, statutes of limitation are clearly procedural—but

they also change plaintiffs’ ability to invoke relief for a valid claim. No remedy, no right. Different jurisdictional views on when a π tolls/stops limitations clock:

i. When they file the complaintii. When defendant is properly served (as in Hanna)

iii. Middle ground: when the π files suit, provided they’re able to serve ∆ within a certain window of time following initial complaint

iv. When π fails to get proper service, courts will assess the likelihood that proper service can be obtained in a timely manner:

1. If yes, they might quash improper service and order π to re-serve2. If no, they might dismiss. Keeping actions alive when there’s little

chance of valid service is seen as a burden on the courts.e. Walker v. Armco In a fed. diversity action, should the courts follow state law or

Federal Rule 3 to determine when action commenced for purpose of tolling state statute of limitations? Rule 3 tells us that commencement means “date a suit was filed” for purposes of other provisions in rules of civil procedure. SCOTUS reads Rule 3 not to mean that state statutes of limitations stop running on the day that a suit is filed. Federal courts shouldn’t interpret federal rules narrowly to avoid a conflict with state law. The result would be an inequitable administration of the

law if we refused to enforce OK’s 60-day service of process (which helps protect ∆s from things like uncertainty) just because plaintiff chose to file in federal rather than state court

i. In other words, “substantive” has a narrower meaning within box 4 (Rules of Decision Act) than box 3 (interpreting Rules Enabling Act) for the purposes of pure Erie analysis

ii. Ragan held that Erie demands a suit not have a longer life just because it’s in federal court.

f. Choice of Laws: Shady Grove v. Allstate Can a federal court hear a (diversity) class action under Rule 23 when NY state law would prohibit a class action suit? Joined claims could lead to a $5mil+ judgment if Allstate had to pay everyone who alleged unpaid interest on overdue benefits. Rule 23 allows class action suits that meet certain criteria, but NY statute forbids class treatment in this. Box 3 Erie analysis: “A fed. rule governing procedure is valid whether or not it alters the outcome of a case in a way that induces forum shopping.” Rule that multiple claims (by or against multiple parties) may be litigated together? Joinder is procedural—alters how claims are processed rather than substantive rights.

i. Sibbach & Hanna hold that compliance of a Rule with the Enabling Act is to be assessed by consulting the rule, not its effects in indiv. applications.

ii. If we don’t allow class action, very few plaintiffs will bring small claims into the state court. Scalia says this doesn’t matter because each indiv. plaintiff has the same rights to sue under NY law as they do under federal.

iii. Stevens’ 5th vote: in some cases a state rule addressing a procedural topic will “function as part of the def. of substantive rights/remedies” and those are protected box 4/the Rules Enabling Act. We’d need lots of reasons to think a state procedure rule was enacted w/ substantive aims, though

g. Klaxon v. Stentor What do we do about choice of law doctrines? Klaxon held that choice of law questions go to the merits of disputes in a way that is substantive for Erie purposes (we’re in box 4). Because these are substantive, state laws and state supreme court decisions control—including on questions of which state’s laws apply to a given case (conflicts-of-law rules of the state where the fed. court sits)

i. Exception under the Van Dusen rule for cases transferred under §1404ii. No surprise, states have tended to promulgate choice of law doctrines that

are skewed in favor of applying their own state laws to disputes involving out-of-state parties

iii. If an accident happened in Maine, and the plaintiff is a VA citizen who brings suit in VA district court, the VA court will probably bring in Maine tort law. So we can end up with a federal court imagining what a state court would think about what another state court would think about an issue. WTF

iv. Do states have direct lawmaking authority over choice of law inquiries within federal courts, specifically? Probably not. Congress hasn’t yet said anything about what federal courts should do if this becomes an issue.

h. Forum Selection : Stewart Org. v. Ricoh Issue: are forum selection clauses a box 2 issue, or box 3/4 analysis? AL π brought suit in AL (violating a forum selection clause) and the state law disallowed enforcement of the clause when NJ-based ∆ moved to transfer. 11th Cir. ruled that questions of venue in diversity actions are governed by federal law 28 USC §1404(a) (which allows discretionary transfer based on expressed preferences of the parties, like the forum selection clause). All we need to do is determine if fed. statute is Const’l (Art. III “necessary and proper”) and sufficiently broad to control the issue. If yes, Supremacy clause says it has to control (see box 2).

i. Recall that Hanna allows federal govn’t to regulate matters that are “arguably” procedural in federal courts

IX. More Pleading Requirements (all pleadings listed in Rule 7(a))a. Rule 8 allocates the burden of introducing issues into a case, for both πs and ∆s b. Rule 8(a): A pleading that states a claim for relief must contain… a short and

plain statement of the claim showing that the pleader is entitled to relief i. Dioguardi was a pretty extreme case where a complaint was held to be

clear enough. At that time, many judges understood 8(a) to require fairly little in the way of factual allegations, not even to support each element

ii. Rule 9(b) says that when alleging fraud or mistake, parties must state “circumstances constituting fraud or mistake” with particularity

1. Why? They might be less well-founded than other claims, because πs can get punitive damages by adding claims of fraud to breach of contract. Denny v. Carey rationale: deter “nuisance or settlement value” claims. They also encompass “wide variety of potential misconduct.” We want info to let ∆ prepare adequate answer.

iii. Rule 9(g) says hat “items of special damage” have to be specifically spelled out (i.e. pecuniary loss) but no heightened pleading req. for civil rights claims.

iv. Some courts want a higher standard for complex cases, i.e. Olsen v. PratX. Answering the Complaint: If you don’t, ∆ gets default judgment under Rule 55

a. Rule 12 : Answers, Motions, Defensesi. (a) Defendant must respond w/in 21 days, if they don’t have extended time

ii. Waiving service (4(d)) can extend this to 60-90 days. Rule 6 allows requests for an exception to the 21 day rule.

iii. No answer has to be filed while dismissal motions are pendingiv. Defendants have to “bundle” all their Rule 12 motions, or waive the right

to assert some forever after.v. 12(b): Defenses list

vi. 12(h): If you have an issue with jurisdiction or think there was inadequate service of process, you have to present all those motions to dismiss at once or waive your objections, imply consent to jurisdiction

1. Ordinary responsive pleadings can also assert jurisdictional issues, and preserve the right to move to dismiss on that basis later

b. Motions to dismiss for lack of jurisdictioni. 12(b)(2) lack of personal jurisdiction

c. 12(b)(5) motion to dismiss for invalid service of processd. Motions to dismiss for improper venuee. Motions to dismiss: failure to state a claim upon which relief can be granted.

Under Rule 12(b)(6) ∆s may attack sufficiency of the initial complaint (see Rule 8(a) for sufficient complaint standard that is being interpreted here)

i. Doe v. Smith Doe sued Smith (her boyfriend) for recording them having sex and spreading the tape around their school. Went to fed. court b/c of wiretapping charge, which required Doe to prove some kind of oral statement was captured by defendant. Seems unlikely she could. Dismissal under 12(b)(6) held improper. Reasoning: “Usually [πs] need do no more than narrate a grievance simply and directly so that the ∆ knows what he has been accused of.” In other words, dismissal under 12(b)(6) is improper “unless it appears beyond doubt that π can prove no set of facts in support of his claim which would entitle him to relief,” per Conley v. Gibson

1. It’s possible for a plaintiff to plead themselves out of court—alleging facts that defeat recovery, or show that ∆ will win of legal necessity (i.e. Doe pled that she consented to the recording)

ii. SCOTUS threw the Conley language out the window with:

iii. Twombly: ∆s allegedly engaged in an agreement not to compete and to stifle other competitors. π must prove this to be successful. Dismissal upheld b/c saying “∆s entered into an illicit agreement interfering with trade” was a legal conclusion in this case—it’s what you’re supposed to be proving with facts at trial. Conclusory statements aren’t good enough to satisfy 8(a), nor is a “formulaic statement of elements” of the claim. We need factual details that will nudge the conclusion, of some kind of an illicit agreement, across the line into the realm of the plausible. Alleged “parallel conduct” (∆s not undercutting each other) could be explained by several things other than collusion.

1. Pleading is the proper phase to weed out overly vague fishing expeditions or settlement extortions—not the discovery phase.

2. Of course, the court didn’t tell us what would be good enoughiv. Ashcroft v. Iqbal Racial discrimination case, where π alleged violation of

Constitutional rights. Dismissal upheld because Twombly was, apparently, not just for antitrust cases. π has to plead factual content that allows “court to draw the reasonable inference that ∆ is liable for the misconduct alleged.” That means facts/allegations from which a court can find plausibility or draw reas. inferences about every element of cause of action

1. But what if π needs discovery? Maybe 8(a) shouldn’t be read to include requirement for the kind of factual details that won’t necessarily be available until discovery. The Rule was designed to be straightforward and simple. See Riley v. Vilsack

2. Erickson v. Pardus Prisoner’s complaint dismissed for “conclusory allegations” of harm when his Hep C treatment was discontinued. SCOTUS reversed, suggesting that pro se complaints should be held to less stringent standards than those drafted by lawyers

f. Rule 12(e): Motion for a More Definite Statement (when π’s complaint is “so vague or ambiguous that the party cannot reasonably prepare a response.”) Rarely granted for all but unintelligible complaints, but when it is πs get 14 days to amend before they’re stricken.

i. Garcia v. Hilton ∆ argued there was no publication of alleged slanderous statement, moved to dismiss or (alternatively) more definite statement and several paragraphs stricken. Dismissal under 12(b)(6) denied. Motions to strike parts of the complaint granted. No evidence could be submitted at

trial to show statements from an administrative hearing were slander, b/c statute gives absolute privilege to statements made in judicial proceedings.

g. Motion to strike (from either party) is often denied. Courts may also strike sua sponte, for insufficient defenses, or “redundant, immaterial, impertinent or scandalous” matter in the pleadings. Often whether this will be prejudicial turns on whether the jury will see the pleadings

i. Gateway held “scandalous” means “obv. false & unrelated subj. of action”h. Answer Contents, Affirmative Defenses

i. Admissions and denials in an answer will address the factual allegations asserted in π’s complaint.

1. You can admit in whole, deny in whole, or deny in part. If you deny part of an allegation, you have to admit the part that is true.

2. Or state that you lack “knowledge or information sufficient to form a belief about the truth of an allegation” and it’ll be treated as an effective denial (Rule 12(b)(5))

a. Oliver v. Swiss Club Tell held that there may be limits on this, such as when info should be within ∆’s knowledge

3. Rule 8(b)(3) allows for a party to make a general denial of all allegations in complaint, including any grounds for jurisdiction. Can be a risky move.

a. Conjunctive (aka Copulative) Denials state that, considered together, all propositions are not true but does not specifically deny the truth of each proposition on its own.

b. Specific denial: we’ll generally deny everything except some things that are specifically admitted

4. Per 12(b)(6) an allegation that is not denied is considered admitted as true. This can have serious consequences—π will not have to present any evidence for allegations that were “admitted” and jury will be instructed to accept the truth of these allegations. Answers tend to include a catch-all denial for anything ∆ may have missed

a. If you make a mistake, you can move to amend under Rule 15, but granting amendments is totally discretionary.

ii. Defenses : Rule 8(c) contains a non-exhaustive list of legal reasons that plaintiff may not recover even if all allegations in the complaint were true.

1. Saying you have an affirmative defense isn’t the same as admitting the allegations. Answers often contain denials, and then affirmative defenses as back-ups.

2. Ingraham Plaintiffs got a judgment against the US for negligent medical care in military facilities. Government found their affirmative defense after final judgment was entered, and moved for relief/reconsideration because they found a law that capped damages for medical malpractice. Motion denied. By failing to assert the cap as an affirmative defense in the pleading stage, ∆ lost their chance to invoke it during trial (forget about after trial)

3. Taylor v. US held differently: Govn’t moved to reduce damages under Rule 59, invoking cap, immediately after judgment and damages awarded for plaintiff. Motion was denied, but reversed on appeal. The cap on damages was not held to be an affirmative defense or an avoidance. Rule 8 states that ∆’s failure to deny alleged amount of damages in a response isn’t an admission.

iii. Amending Answers: Rule 15, (b)-(c), governs amendments to complaints during and after trial

1. 15(b): if an issue is tried by express or implied consent, then it doesn’t matter that the issue wasn’t included in the pleading. Debate on an issue without a timely objection will probably be seen as implied consent. πs can prevent adversaries from raising a defense they waived by not including it in their answer, but if π fails to object, you may be waiving the waiver.

2. 15(b)(1): Objecting to ∆’s amended answer: When π objects to an amendment as prejudicial, we ask if the delay in pleading a defense or something like that would make the π less able to respond at trial than they would have been with earlier notice (i.e. lost opportunity to do discovery might be prejudicial)

3. 15(c)(1) When do amendments to pleadings “relate back” to original pleadings? Must satisfy one of these:

a. The law with the applicable statute of limitations allows relation back (state or federal)

b. The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original complaint (no claims against new parties!)

c. Amendment is changing a party or the naming of the party against whom a claim is asserted. This is only fine if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4 (120 days for service in federal court after filing) for serving the summons and complaint, the party to be brought in by amendment:

i. Got notice of the action such that it won’t be prejudiced if they have to defend on the merits, and knew or should have known there would be an action against them, but for a mistake about the proper party’s identity

4. 15(c)(1)(C) is pretty hard to satisfy, but the conditions were met in Schiavone v. Fortune. Plaintiffs sued Fortune Magazine by the brand name rather than the proper business name (Time). By the time they went to name Time Inc, the statute of limitations had run. SCOTUS applied 15(c) to allow service that would’ve been barred “to correct a formal defect such as misnomer or misidentification”

5. Beeck v. Aquaslide: When is allowing amendment prejudicial, and an abuse of discretion? Plaintiff was injured while using a water slide, sued Aquaslide as the manufacturer. ∆’s insurance adjuster issued a letter about his opinion that the slide “was definitely manufactured by our insured.” ∆ admitted initially that they had manufactured the slide, but after the statute of limitations ran out on plaintiff’s suit they decided they had not manufactured it, got an amendment, and got summary judgment. Plaintiff failed on appeal: Appeals courts can only review for abuse of discretion. The fact that the statute on personal injury claims had run its course wasn’t an obvious “death knell” to the litigation (that would require court to assume ∆s would prevail at trial). They stopped looking around for the manufacturer when Aquaslide admitted that part of the complaint—so they’re out of luck

a. Precedent says that amendments should be “freely” allowed in the absence of “undue delay, bad faith… undue prejudice to opposing party by virtue of allowance of the amendment” etc. Totally discretionary.

6. Krupski So you sued the wrong people and your time ran out to retry. Now what? π broke her leg on a cruise ship, sued Costa Cruise Lines 3 weeks before the limitations period ran. After the time limit ran, Costa Cruise brought existence of Costa Crociere to Krupski’s attention. π was allowed to add Costa Crociere by amending. They moved to dismiss, arguing that the amended complaint didn’t “relate back” under Rule 15(c). Court found that π had not mistaken the identity of the party. Dismissed, rev’d. ∆ should have known that Krupski’s failure to initially name it as a defendant was due to a mistake of the proper party’s identity. Rule 15(c)(1)(C)(ii) isn’t concerned with if Krupski knew the proper defendant, but with whether Costa Crociere knew or should’ve known it would have been named ∆ but for an error during the Rule 4(m) period.

a. Note: Undue delay may be grounds for denying amendment motion. If dist. judge had just refused to allow motion to amend, there would be no “relation back” issue at all

7. If ∆’s answer admits plaintiff’s key allegations and fails to state a valid defense, even when read in the light most favourable to defendant, π can win under Rule 12(c)

iv. Defense Pleading Requirement Controversy: Rule 8(b)(1) has language similar to the pleading requirements for πs. Does that mean that the heightened burdens of Twombly/Iqbal are symmetrical, and apply to legal defenses too? Courts disagree:

1. Some, “what’s good for the goose is good for the gander” (pp621)2. Others say, nuisance defenses aren’t going to create the same level

of discovery costs, or the same policy concerns, as nuisance complaints do. Also, Form 30 illustrates a defense that contains no factual allegations whatsoever. It’s all conclusory allegations, and the forms are valid in court per Rule 8.

i. Defendants on the Offensive: Counterclaims under Rule 13i. 13(a) Compulsory counterclaims—defendant must assert any claim for

relief against opposing party (π) related to the transaction or occurrence that gives rise to π’s claim. If ∆ fails to assert a compulsory counterclaim and the court enters judgment on the claim, ∆ is barred from bringing a new suit on that basis

1. May be seen as waiver, claim preclusion, or a type of estoppel2. Basically, better to assert a counterclaim if it might be seen as

compulsory than be sorry later onii. 13(b) Permissive counterclaims—∆ may sue π for unrelated stuff too

iii. 28 USC §1367 authorizes supplemental jurisdiction over counterclaims that are so related to the anchor claim as to be part of the same case or controversy. Anything that meets the Gibbs test (common nucleus) goes

1. Nelson says the Gibbs test in §1367(a) is slightly broader than the test for compulsory counterclaims under Rule 13(a)

iv. Plaintiff has to answer a counterclaim the same as a defendant would: Rule 8 answer content, Rule 12 on time limit, etc. (π probably can’t get a counterclaim dismissed for invalid venue or lack of personal jurisdiction. They chose where to file initial claim, basically consenting to jurisdiction)

j. Crossclaims: when P sues D1 and D2, and D1 files a claim against co-party D2i. Rule 18 allows any cross-claims arising out of the same transaction/

occurrence, provided that the court has jurisdiction, but failure to assert a related cross claim won’t bar a later suit.

1. Policy rationale for keeping it optional: π gets an advantage if ∆s start pointing fingers at each other during trial. Compulsory cross-claims (i.e. waiver rule like 13(a)) would give πs a tactical advantage because we allow fairly broad discretion in joining defendants—we want to give ∆s a chance to present a united front

2. But if D1 decides not to join forces with D2 against P, and asserts a crossclaim, then D2 might be forced to assert compulsory counterclaims against D1 (because they’ve become opposing parties as well as co-parties)

a. The law says: fine, you don’t want that united front? Let’s settle all of this at once.

ii. Danner v. Anskis held that co-plaintiffs cannot file cross-claims against each other under Rule 13(g)

iii. Rule 13(h) makes it possible for D1 to assert cross-claims against D2, D3, and third parties who have not yet been joined into the case (added in as additional parties).

iv. LASA v. Alexander Alexander was a construction subcontractor, and contracted with LASA for some marble. LASA alleged it had performed the and was owed 1/4 of the price—about $127k. Alexander filed an

answer and counterclaim saying LASA had breached by shipping wrong marble late, and it was damaged, too. Then it got crazy:

1. Main contractor (Southern Builders, D2) filed an answer/ counterclaim alleging damages from LASA’s failure to perform

2. Alexander (D1) filed a cross-claim against Southern (D2)3. Southern then filed a crossclaim against D1 Alexander for breach

of contract, and Alexander impleaded a 3d party for negligence, interference with contract, and filed some more crossclaims

4. Reasoning: The cross-claims and 3d party complaint were allowed to stand because, per 6th Cir., we give “transaction or occurrence” a broad interpretation to avoid “multiplicity of suits.” All of these pleadings and contracts relate to the same big project, and many of the same factual/legal questions would come up if we tried these claims separately. Rule 13 and 14 are designed to “dispose of the entire subject matter arising from one set of facts in one action”

a. But if a court is worried that trying all claims together will confuse a jury, they can order separate trials under 42(b)

v. Jorgenson v. TI Third party defendant Tosti moved to dismiss a cross claim from an original defendant, arguing that D’s and TPDs are not “co-parties.” The court disagreed, allowed the cross-claim

1. Some courts think that airs of folks must be of “like status” to be considered co-parties. Nelson thinks that’s overly complicated, and we should go with the courts who say that parties are either opposing parties or co-parties (or both).

k. Impleading and Interventioni. Third Party Complaints : Rule 14 allows ∆s to implead parties who

allegedly have to pay any damages ∆ might be found to owe to π. Must be made within 14 days of answer, or with permission from the court.

1. Another offensive move for ∆s. Saying: if I’m held liable, this other guy ought to reimburse me for some of the judgment (claim for contribution) or all of it (claim for indemnity)

2. Venue rules (§1331) does not restrict third party complaints, etc.3. What about jurisdiction? D’s claim against TPD from same state

can be heard in fed. court because it almost certainly arises from

the same operative nucleus of fact as plaintiff’s anchor claim. Therefore, supplemental jurisdiction probably supports these complaints. Excepting 100-mile bulge rule, personal jurisdiction over TPD will be measured the same as any other ∆.

4. Third parties have to respond under same rule 12 regulations as any other defendant. They may assert any counter or cross claims (under 13(a)) against plaintiff arising from same transaction/occurrence (14(a)(2)(d)) or defenses they have (or risk waiving them).

a. This will let π bring in TPDs of their own, or assert claims against the first TPD arising from the same transaction/ occurrence that caused initial claim against D. Once there’s a “claim arrow” between P and TPD, compulsory counterclaim rules and the rest kick in.

b. Claims by plaintiffs against parties brought in under Rule 14 (when the court only has diversity jurisdiction under §1332 for the original claim) can’t be heard because they fit one of the alignments in §1367(b). See Kroger.

5. 14(4) allows anyone to move to strike third party plaints, or sever or try them separately. 14(a)(5) allows TPDs to bring in a chain of other TPDs in after them with claims for contribution/indemnity under, provided there’s supplemental jurisdiction.

6. Jeub Can ∆ implead TPDs because you anticipate right to sue them after an adverse judgment? Restaurant moved for third party indemnity against its supplier for “any recovery made by π.” Supplier moved to vacate impleading order, arguing there was no cause of action, and Rule 14 doesn’t create the right to sue b/c of potential of judgment/settlement. Motion to vacate denied: If there may be a cause of action at end of the case (if ∆’s subject to judgment) it’s fine to bring TPDs into proceedings on that basis. Rule 14’s designed to let us adjudicate all parties’ rights in one big proceeding, avoid “circuity” in lawsuits.

7. Too v. Kohl’s ∆ Windstar moved (under 14(a)(1)) to file a 3d party complaint for contribution/indemnification from 2 former employees who “knew or should’ve known” they were infringing if there was any copyright infringement. When ∆ is asking for

impleader permission after time window’s past, the factors to be considered are: (1) was there deliberate delay in filing motion? (2) would impleader delay or complicate trial? (3) would impleader prejudice the TPDs? (4) does the complaint against TPDs state a valid claim? No to 1-3, and yes for contribution claim under (4). Interest of judicial economy means court’s willing to allow despite “untimeliness”

ii. Intervention by outside parties: so you want into the lawsuit (Rule 24) Currently, a lot of circuits are interpreting 24 too broadly for Nelson. We want outsiders to have an actual, legal, claim or defense that they can assert against one of the original parties for either kind of intervention. Would-be plaintiffs should have an actual or potential cause of action, and defendants should have a defense before they intervene.

1. 24(a) Intervention of right (court has to let you intervene): Available to anyone who claims an interest relating to the subject of the action and is so situated that disposing of the action may impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest

a. At least as broad as Rule 19(a)(1) on necessary parties2. 24(b) Permissive intervention (district judge’s discretion) On

timely motion, the court may let anyone intervene who has a claim or defense that shares a common question of law/fact with main action (24(b)(1)(B)). Court must consider whether intervention will “unduly delay or prejudice” original action, per 24(b)(3)

3. 24(c) says party seeking to intervene must serve motion on all applicable parties per Rule 5, with grounds for intervention and a pleading setting out claim or defense

4. Constitutional Questions: right for the US Attorney General to present the US case on Constitutional questions, and the state att. gen. to do the same when a provision of State Constitution is in question. Under Rule 5, the party questioning constitutionality of a statute must:

a. File notice of the constitutional question, if statute is questioned and the US/relevant state is not a party

b. Serve notice on the relevant attorney general. They may then intervene as a matter of right within 60 days

i. Within those 60 days, a court may reject the constitutional question but not enter a judgment holding the statute is unconstitutional.

5. Geithner Issue: Does Justice (representing IRS) adequately represent would-be intervener’s rights? IRS doesn’t require pastors to count housing stipends as income for purposes of federal income tax. Freedom from Religion Foundation sued Treasury/IRS to enjoin this based on Establishment Clause. A preacher tried to intervene as a ∆—has interest in continuing to claim tax benefits, but motion for both permissive intervention and intervention of right was denied. Where party and proposed intervenor share the same ultimate objective, we presume adequacy of representation, therefore intervention of right failed on appeal, but 9th Cir. remanded permissive intervention finding because they held that the pastor didn’t independent standing. Neither court talked about whether Rogers had a valid claim or defense, in this case.

6. SCOTUS said that intervention shouldn’t ever be “compulsory” in Martin v. Wilks: Knowledge of a previous lawsuit does not obligate a party to intervene in that suit

XI. Joinder a. Parties b. Rule 20 (a)(1) lists conditions for πs who want to file a suit jointly as co-plaintiffs:

i. Suit arises out of same transaction, occurrence, or series of occurrencesc. Rule 20(a)(2) lists conditions for a single complaint in federal court to assert

claims against 2+ joint defendants:i. Claims arise out of same transaction, occurrence, or series thereof

ii. A question of law or fact arising in the action will be common to all the ∆sd. Rule 19 imposes some limitation on π’s discretion in who they join as co-πs and

∆s: When a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in (Fed Code Civ Pro §389)

i. 19(a) Necessary Parties should normally be joined, but aren’t indispensable. Their interests are separable from the rest and (sometimes) their presence cannot be obtained. Suit can go on without them

1. Rule qualified by considerations of fairness, practicality. Absent parties must be joined if feasible when “court cannot accord complete relief among existing parties”

2. Or if disposing of the matter without an absent party may “leave an existing party subject to a substantial risk of incurring double, multiple, or… inconsistent obligations”

ii. 19(b) Indispensable Parties are a special class of necessary parties, , because the court cannot proceed without them. Their rights will be affected by any decree which can be rendered in the action. ((i) “diposing of the action in their absence may impair/impede ability to protect the interest”) If they can’t be joined, we dismiss the entire suit.

1. Lack of these parties (who may not know there’s a trial, be in a bad position to protect their interests) can be raised by court sua sponte

iii. 19(c) requires plaintiffs to state name of anyone who’s required to be joined if feasible, and is not joined—and why they haven’t been joined

iv. Provident Tradesmens Bank If someone should be joined per Rule 19, but it’s not feasible to do so, should the courts dismiss the case or move on without him? Car accident case with 3 victims, car owner D (insurance policy would pay up to $100k) and the driver (C). Trial verdicts for all 3 plaintiffs. Appeals court held that car owner (D) was an indispensable party—and his joinder destroyed the diversity jurisdiction, they held the case had to be dismissed. Reversed under Rule 19(a)(1)(B)(ii): D should actually have been joined “if feasible.” It’s true there was an interest in avoiding double/inconsistent obligations, but by not objecting to D’s absence we’re not too sympathetic after parties have litigated on the merits (implicitly waiving objection on the basis of absent indispensable party).

e. Claims f. Rule 18 it’s fine to “bundle” a bunch of claims against one opposing party, even if

they arise out of different incidents/causes of action.i. allows joinder of claims as long as they’re all against the same ∆

ii. Only restriction on claims is through jurisdictional requirementsg. Rule 42 allows severance of claims when we’re worried about jury confusion (i.e.

applying different types of law) or allows consolidation of suits concerning a common question of fact or law

h.

XII. Discovery: has become exceptionally broad in scope and availability. US courts now think it’s “critical to ensuring that meritorious claims secure relief.” Discovery runs from the conference date to the cut-off date established by a court (up to a year or two, and even later in some states)

a. Justifications: Preserve relevant info that might not be available at trial (i.e. very ill witness). Figure out what issues are actually going to be in controversy, and what kind of testimony/evidence is available for those issues. It makes info about the workings of government and corporations more transparent, and supposedly deters some lawless behavior b/c risk of exposure/bad press

i. Removes the element where trials used to turn on access to facts/ability to pull out surprises during trial

b. Mostly no pre-trial discovery. Rule 27(a) allows depositions to preserve testimony under unusual circumstances. Generally, though, 26(d) prohibits formal discovery until there’s been a conference (per Rule 26(f)) and a proposed discovery plan, including a cut-off date for discovery period, goes to the judge (must be within 14 days of the conference). Motions can be filed as soon as conference is over.

i. After this, court will issue a set of scheduled deadlines under Rule 16(b)ii. Deadline for mandatory sidclosures is linked

c. Mandatory Disclosure under Rule 26(a): Parties must produce, without a request:i. Initial disclosures on documents/electronic info in their possession that

may support claims/defensesii. List of individuals who have discoverable information

iii. List of all witnesses and exhibits to be called/introduced at trialiv. Computation of damages, if the party is seeking damagesv. Rule 26(e) imposes a duty to supplement/amend these as necessary

throughout the trial. vi. Purpose is to describe or categorize potentially relevant material so that

opposing party may “make an informed decision regarding which documents might need to be examined.” (Comas, 1995)

d. Scope of Discovery: 26(b)(1) authorizes discovery of any non-privileged matter that is relevant to their case. This doesn’t need to be admissible under trial rules of evidence

i. 26(b)(5) To resist discovery on grounds of privilege, you have to claim that privilege expressly, and describe the stuff you’re not disclosing in a way that will let other parties assess your claim of privilege without revealing the protected information

1. 26(b)(5)(B) allows some “clawback” of inadvertently disclosed privileged info if there’s an honest mistake. See Jumpsport

ii. 26(b)(3) Limited Materials: Work Product Doctrinea. A: You can’t discover documents/other tangible things

opponent’s counsel is preparing for the purpose of a (potential or actual) trial (prepared at a time when it’s reasonable to anticipate litigation) unless it’s otherwise discoverable OR they show substantial need for the materials & no other way to get a substantial equivalent

b. B: Even if disclosure if ordered, opinion work product of attorney will be protected (opinion, legal theory, recollections, etc.)

iii. Waiver: Voluntary disclosure of work product to a third party is a waiver if the disclosure substantially increases the chance that the opposing party will get access to it

iv. Differing work-product standards: 1. Temporal requirement of “prepared for trial:” Some say you need

objective facts supporting a resolve to litigate. Others say there must be an “identifiable specific claim” at the time of the document’s creation. A third camp says it’s enough if there was reason to think that litigation was “a real possibility” at time of document’s creation.

2. Causal test: Subjective inquiry of what motivated the creation of this particular document? 5th Cir. held that the work product doctrine only applies if the primary purpose for creation of the document was to assist w/ the conduct of actual litigation (incl. preparation). 2d Cir. ruled to protect documents created because of the prospect of litigation, even if they wouldn’t directly assist in the trial (following US v. Adlman)

a. i.e. memo evaluating the possible outcomes of litigation, prepared for a business decision would be protected by the 2d Cir. but not by the 5th.

b. Considerations: adversarial system, chilling effectv. Harper v. Auto-Owners How do we decide if it’s work product? 7th Cir.

said they won’t read “in anticipation of litigation” requirement broadly. They look for a very substantial, specific threat of litigation and ask, were

the documents prepared because of anticipation of litigation? Routine investigations/reports aren’t work product, and may be obtained in discovery without special showing of need. There must be more than a general possibility of litigation—was it “substantial and imminent?”

1. Insurance co.s can’t shield all claims files. Connection of preparing material/possible litigation must be “sufficiently concrete” to assure that material prepared in ordinary course of business won’t get blanket immunity

vi. Hickman v. Taylor (led to codification of the work product doctrine) Appellant admits he wants a lawyer’s memos to make sure he hasn’t overlooked anything. (No reason he couldn’t interview witnesses himself, he’s just being lazy) 3d Circuit rev’d the dist. court on grounds that “work product of the lawyer” is privileged. Mutual knowledge of all relevant facts is essential to litigation under modern discovery. However, π wanted mental impressions of the attorney without any showing of necessity or justification, when the essence of what he wants is available through depositions, etc. No rule contemplates production of an adverse attorney’s files/mental impressions. We want to retain adversarial nature of the system, not let someone win a case by riding on the other side’s “wits.”

1. Our system won’t do as good of a job at discovering the truth if lawyers can’t prepare for cases freely, in relatively assured privacy. We want very strict protection for opinion work product

vii. Jumpsport v. Jumpking If a party inadvertently discloses a privileged piece of work product, can they get it back and prevent use? Or does it count as a waiver? Rule of Evidence 502(b)—inadvertent disclosure of work product or attorney-client privileged info isn’t a waiver if the party took reasonable to prevent the disclosure (though ineffective) and then promptly took steps to remedy this accidental disclosure.

viii. Attorney Client Privilege will cover communications between:1. Member of the bar, or a subordinate2. Talking with a client, or someone seeking to be3. Relating to a fact that attorney was informed of by client, with out

the presence of strangers, for purpose of securing: legal opinion; legal services; assistance in a legal proceeding; not for the purpose of committing a crime or tort

4. If the privilege has been both claimed and not waived by the client

5. Note: courts tend to resolve borderline cases against finding privilege, because it suppresses relevant facts.

6. Upjohn v. US π company’s attorneys drafted a letter w/ a questionnaire asking managers for confidential info on “possibly illegal” payments for purposes of an internal investigation. π later submitted report to SEC/IRS for foreign bribes. During IRS investigation, Upjohn declined to produce questionnaires and subsequent interview notes, claiming privilege. Motion to compel: reversed. Employees knew they were being questioned so that the corporation could get advice from counsel about compliance with securities/tax laws, financial regulations, and potential litigation in various areas. The communications should be protected against compelled disclosure—after all, the govn’t can just question the same employees themselves. The IRS got a list, and has already interviewed a few dozen.

7. Waiver: if the client or the lawyer deliberately reveals information to someone without any confidentiality obligation) it’s fair game as evidence. Intentional waivers will extend to undisclosed info, concerning the same subject matter, that ought to “in fairness” be considered along with the disclosed info

e. Depositions : Rule 30 allows oral examination of parties to the suit, or nonparties, no matter where they’re located. Can help pin down an adverse witness to their story ahead of trial, so you can impeach if they deviate. We presume a limit of 10 depositions per side, but in complicated cases these limits are routinely exceeded by parties’ agreement/court’s permission

i. Rule 32 says that depositions are admissible under the Rules of Evidence just like if the party were present to testify

ii. Under Rule 32, an objection must be made during deposition (incl. before deponent answers) to keep the question and answer from coming into evidence when the deposition is read at trial

1. If counsel fails to object during deposition, they waive that rightiii. Rule 45 allows subpoenas to compel presence of deponentsiv. Rule 30(c): when one lawyer’s done asking questions, the other gets a turnv. Tatman v. Collins Wrongful death suit. Rule 32 makes no distinction

between depositions taken for discovery purposes and those taken for use at trial. During discovery, ∆s took a deposition from a doctor, but a

scheduling conflict prevented him from testifying at trial. π sought to introduce deposition on grounds that dr. was >100 mi. from the courthouse. Dist. court said it was inadmissible because witness was within 100 mi. of the district borders. Reversed: Rule 32(a)(3)(B) provides that deposition may be admitted if witness is at a greater distance than 100 miles from “the place of trial” and that means the courthouse where the trial actually takes place. Abuse of discretion.

f. Interrogatories: Rule 33. Default number is 25 per party. These are written questions, answered in writing and under oath, that may only be directed towards another party in the case. Answers are typically prepared by a lawyer, and signed by the party (so they’re much less useful than depositions, typically filled with objections). They can be introduced as evidence, just like depositions.

i. You can’t label everything a “subpart” of one interrogatoryii. Cable v. Lockheed Saunders Held that Rule 33(c) provides that an

interrogatory isn’t objectionable simply because it calls for an opinion or contention relating to facts or the application of law to facts. Doesn’t make sense to draw sharp lines between facts/opinions. π should answer interrogatory based on the info they have at the moment.

iii.g. Requests for admission: Rule 36 (may only be directed to parties in the suit) You

can ask for admission about facts, evidence, opinions, application of law, or anything that isn’t purely a matter of law. These constitute conclusive evidence at trial, unless withdrawn (but only for one trial, not other proceedings)

i. May be served at any point after conference until 30 days before trial date (to allow time for response) but these tend to happen late in the discovery process when parties are trying to narrow the fighting issues.

ii. Answers have to admit, deny, or clearly explain why the party is unable to do either. If you can only deny one part, you have to admit the rest. Failure to respond counts as an admission of anything not responded to

iii. If you serve your response late and the opposing party refuses to accept it, you have to ask the court to excuse your untimely response. Also have to ask permission to withdraw or modify admissions made in any response

h. Requests for production from parties: Rule 34 lets you ask for documents or electronically stored info, unless recovering the electronic info is too burdensome under Rule 26(b)(2(B)). Can also request access to land/property for inspection.

They must include time, place, and manner of inspection (usually negotiated by attorneys)

i. Responding party needs to produce documents within 30 days, unless they get an extension. Response will either grant permission or object, on an item-by-item basis. You need a specific reason for each objection (i.e. vagueness, lack of control over the document)

ii. Fairly flexible level of precision to meet requesting standards. Requests generally describe documents by category, and are usually preceded by definitions ensuring that the recipient can’t construe terms of the request narrowly and not produce some stuff the other side wants.

iii. Typically timed to come before depositions so you can ask better questions

i. Physical exams: Rule 35 lets the court order physical and mental exams when facts about a party’s health will be at issue in the trial. The movant has to show “good cause” to compel examination, since we may be weighing pain/ danger/ intrusiveness of medical exam against the utility.

i. These are pretty standard in personal injury, paternity, and incompetence actions. The rule is for when the parties can’t reach an agreement through negotiation.

j. Expert witnesses : List of experts has to be disclosed 90 days before trial, along with info like qualifications, exhibits, etc. Rule 26(b)(4) allows deposition of anyone identified as an expert. If they’re preparing a report, you have to wait until it’s mandatorily disclosed for deposition—and drafts of any report/disclosure are protected.

i. Per Rule 26(b)(4)(D) Facts/opinions from experts retained in anticipation of litigation but not expected to be called as witnesses aren’t discoverable, unless it’s completely impracticable to get the info by any other means.

ii. Rule 26(b)(4)(C): New restrictions: communication between expert and lawyer is protected, except regarding compensation and assumptions/facts the attorney provided that were considered and relied on by the expert.

iii. Lamonds held that we don’t distinguish between fact and opinion work product when it’s been shared with and used by an expert witness in forming their opinions. Attorneys can protect opinion work product by not sharing it with experts. (Because experts are in a unique position to mislead triers of fact, prepping for cross exam is especially important)

iv. Braun v. Lorillard District court required production of the π’s test results from previous experts, based on the “exceptional circumstances” (aka getting a shady “expert” and destroying evidence. Exceptional derivation from Rule 26(b)(4)(D) upheld by the 7th Cir.

1. Shielding non-testifying experts in this rule facilitates “shopping for favorable expert witnesses”

k. Subpoenas for Witnesses/Deponents & Subpoenas Duces Tecum: Rule 45 lets you force witnesses to show up for deposition, and make custodians of documents produce them for inspection/copying, even if they’re not parties to the case.

i. 45(d) spells out obligations to avoid unnecessary burden/expense for the witness and the procedure for objecting to the subpoena within 14 days (or returning date, if less than 14 days)

l. Certification: Rule 26(g) tries to maintain good behavior by requiring lawyers to sign and certify discovery papers, stating that the lawyer has inquired into the matter, and can say to the best of their knowledge that the disclosure is correct, complete, not being asserted frivolously, consistent with these rules, and not unreasonable or unduly burdensome given the situation (i.e. a stack of repetitive, unsorted documents)

i. If an uncertified document is submitted, the court must strike it unless a signature is promptly supplied, and the judge may impose “appropriate sanction” for improper certification

m. Dispute Resolution/Sanctionsi. Failure to supplement if a party learns that their disclosure or response was

incomplete or incorrect triggers sanctions under 37(c)(1)ii. Same duty to supplement applies to info given by your side’s expert

witness during deposition. Must be in by the time that pretrial disclosures are due under 26(a)(3)

iii. If my opponent is resisting discovery in some way, i.e. claiming attorney client privilege, and I don’t believe them, I’d file a motion and brief to compel under 37 and the opposing party would file a reply brief with evidentiary materials to support their claims of privilege. The court would then rule that the opposing party has privilege or has to produce document

1. The party that loses the motion has to pay fees associated with it. Encourages parties to resolve matters themselves if possible

2. If the court grants a motion to compel and a party fails to comply, 37(b) imposes much harsher sanctions—including possibly

dismissing a π’s suit, entering judgment against ∆, or sticking people in jail for contempt

iv. Rule 37(d) imposes sanctions for refusing to attend a deposition, serve answers to interrogatories, or respond to a request to inspect documents. You have to formally object if there’s anything objectionable.

1. If a deposition was really inconvenient, you could just file for a protective order under 26(c), or just negotiate to change it

n. Protective orders: Rule 26(c) allows anyone who’s attempted and failed to resolve their dispute without the court to move for a protective order against oppression, undue burden or expense, etc.

i. In granting a protective order, the court may: forbid disclosure/discovery; modify terms of discovery; prescribe an alternative discovery method; limit scope of discovery to certain matters, etc.

ii. It’s become common for the lawyers on each side to agree to negotiate stipulated umbrella protective orders prohibiting publication of information designated as “private.”

o. Rule 26(b)(2) allows the court to limit discovery in some ways—including when the burden of production will outweigh likely benefits.

p. Problems with Discovery: The legal bills generated are absurd. Both sides have higher expenses, so litigation becomes too expensive for some deserving parties. That means lawyers might not take on deserving smaller claims, because a contingency fee won’t go far if there’s even one discovery motion.

i. Nuisance value encourages (∆) settlements to make the other party go away OR (πs) take the easy way out rather than get all of what you deserve for your injury

XIII. Settlement or Summary Judgmenta. Rule 56 allows parties to move for summary judgment on all or some of the

opposing party’s claims or defenses. It’ll be granted if “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to JMOL”

i. Motions may be made anytime, up until 30 days after the end of discovery. You have to file a brief along with properly authenticated materials from disclosure/discovery with the court before moving, or point to relevant admissions already in the record.

1. 56(c): if a a party doesn’t cite relevant evidentiary materials in their brief, they’re waiving their right to have it considered

2. Opposing party will file a brief in opposition, plus any evidentiary materials they want to add to the summ. judgment record.

ii. Party asserting that facts are genuinely disputed or cannot be disputed has to cite admissible evidence from the record, or show that opponent could not possibly meet their burden of proof or produce evidence to support a material dispute.

iii. Defeating a motion for summ. judgment: Introduce evidence from discovery into the record to show that there is enough that a reasonable trier of fact can find your way

1. Anderson held that only disputes that might affect the outcome of the suit (under governing law) can preclude summary judgment

iv. Rule 56(d) may allow time for additional evidence-gathering when facts are unavailable or a party has failed to support an assertion of fact, on a discretionary basis

v. Independent Judgment: the court may grant motion for a nonmoving party, grant the motion on grounds not raised, or just consider summ. judgment on its own after identifying material facts that aren’t in dispute

vi. Adickes reversed dist. court finding that there was no evidence of conspiracy in a civil rights case on grounds that ∆ hadn’t met its burden of showing “absence of disputed material fact.” A reas. jury could find there was an understanding that π should be denied service. We have to construe things as favorably as possible for party opposing summary judgment

vii. Celotex Is it enough for ∆s to just point out that there’s no evidence conclusively supporting plaintiff’s allegations? SCOTUS held that ∆s can win summary judgment just by pointing out that π’s evidence cannot allow trier of fact to conclude that they’ve carried their burden. No need to show more—π bears the burden of producing evidence to rebut that. No requirement in 56 for the moving party to provide materials that negate the opponent’s claim of factual issues.

viii. Anderson v. Liberty In deciding whether to grant summary judgment, dist. court needs to “view the evidence presented through the prism of the substantive evidentiary burden.” There’s a genuine material issue only if a reas. trier of fact could come down on either side based on the record, if that evidence were introduced at trial. That must be defined by the criteria governing how much evidence would let the jury find for either π or ∆.

1. Dissent: the judge is not supposed to weigh the evidence or assess the credibility of witnesses. Is there a significant dispute or not?

2. Only when we’re trying to say opposing party’s evidence is legally insignificant might the evidentiary burden might make a difference

ix. Matsushita v. Zenith SCOTUS rev’d finding there was a material issue on conspiracy because there was no plausible economic motive to conspire. If ∆’s conduct could be consistent with other, equally plausible explanations, it doesn’t give rise to inference of conspiracy. No genuine issue for trial.

x. Scott v. Harris Police officer’s video of car chase was “clearly overwhelming evidence” that π’s risky conduct endangered human life. A rare case where summ. judgment for ∆ was proper because no reas. finder of fact could find for nonmoving party, despite some conflicting evidence. (We usually accept π’s version of the facts when ∆ moves for summary judgment, but the video’s an overwhelming contradiction)

1. Expert evidence the video was altered in some way might make summary judgment improper. π’s affidavit “that’s not how it happened” will not be enough

xi. Bias v. Advantage What kind of contradictory evidence will create a genuine issue and defeat a motion for summary judgment? Advantage said b/c decedent was a drug user, he wasn’t eligible for jumbo life insurance. ∆ intro’d testimony from teammates who said they saw Bias using cocaine and moved for summary judgment. Granted because (1) there was no genuine issue about whether Bias was a drug user (2) no dispute about fact that, as a drug user, Bias couldn’t have gotten the insurance policy. Affidavits from people unfamiliar with specific events referred to by moving party weren’t enough to defeat summ judgment.

XIV. Setting Case for TrialXV. Jury selection

XVI. Trial: opening statements, plaintiff case in chief (witnesses exams and cross-exams, redirects and re-crosses, evidence and objections, rest) ∆ may move for directed verdict, if none, then ∆ case in chief (witnesses, evidence, rest) π response to any new matters raised. Both parties can ask for directed verdict. If no directed verdict, the jury is charged. Final arguments, judicial summary, verdict.

XVII. Post-trial motions and rendering of judgment, writ of execution/decrees.

a. JMOL (after a jury verdict) Rule 50 allows judgment as matter of law if movant shows that a reasonable jury wouldn’t have legally sufficient evidence to find for the opposing party.

i. If you let the case go to jury without seeking JMOL, you have waived your right even if your client was entitled to JMOL. No right to argue after that unless you move before the jury deliberates. 50(b) must be for renewal of a previous motion

1. If your opponent fails to point out that you never moved for JMOL under 50(a), they have waived their right to object on the basis of your earlier waiver

ii. 50(b): If court does not grant motion and submits the matter to the jury, movant party may file to renew motion and/or move for new trial within 28 days of entry of judgment

iii. 50(c) If court grants JMOL on renewal motion, they must make a conditional ruling on whether a new trial should be granted if the judgment is later vacated/reversed

iv. Jerke v. Delmont State Bank (1929) The jury only gets to decide if the material facts as to which reasonable people might differ do exist or do not exist. If proof of the party bearing the burden is so “meager that a reasonable mind could not” find for them, the jury has nothing to do

v. Unitherm Food Systems v. Swift-Eckrich, Inc., SCOTUS (2006). Even if a party properly (but unsuccessfully) sought JMOL before case was submitted to the jury, the moving party needs to renew the motion after an unfavorable verdict. Otherwise, no basis to argue on appeal that they were entitled to JMOL (even though they would have been presenting the exact same argument that the judge rejected before verdict)

Trial by Jury Bench trials can be more efficient, but some people want jury sympathy. Even if you have the right to a jury trial, at least one party has to demand it to get one.

38(b) and 81 set out the deadlines for demanding a trialIf a party does not, 38(d) says the party has waived their right to trial by jury. If a party moves after they should have, the judge has discretion to allow or deny the motion. (rule 39?)Constitutional Question: Right to trial by jury?7th Amendment says, “In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved;”

This means suits at common law in federal court. Not held to be applied to states through the 14th Amdt. Many states have their own provisions about right to jury trial in civil suits.

What’s a common law court anyway? Well, basically, plaintiffs can’t get juries for claims that would have be held in the courts of equity in 18th century England. If plaintiff is bring both legal and equitable claims with common questions of fact, the jury trial has to proceed first, followed by the bench trial (per Beacon Theatres 1959).

o Jury trial has to answer common questions of fact before judge resolves re-maining claims that don’t trigger a constitutional right to a jury trial eve if the claims for legal relief seem incidental (per Dairy Queen v. Wood 1962)

Even thought the Judiciary Act of 1789 established that US courts can hear both law/equity suits, procedures were different for centuries. Until 1928 merger, you had to proceed separately if you had claims for both—the 1928 Rules said civil actions can include both equitable and legal claims. Same rules apply to both.

o If there claim didn’t exist in the 18th century, and there’s no closely analogous cause of action, the court will sort “legal vs. equitable” based on the type of remedies sought (declaratory judgment is in a grey zone, we ask “what would this suit have looked like without the request for declaratory relief?)

“No fact tried by a jury shall be otherwise re-examined in any court of the US than according to the rules of common law.”Federal statute can also expand the right to trial by jury with statutes

Jury TrialImpaneling a jury can be complicated—jury selection takes time, and many discussions (between judge and lawyers) about points of law will need to occur in chambers or at sidebar, not in open court where jury will here.

Judge will need to prepare jury instructions:Fed Rule 51- requests, objections, and preserving a claim of error(51 has been amended to allow judicial instructions to jury before closing statements, afterwards, or both before and after)

(a) Requests At close of evidence or other time ordered by court, a party may file jury instruc-tions it wants the court to give, and furnish copies to every other party. At close of evidence, par-ties may:

file requests for instructions on issues that couldn’t have reasonable been anticipated at earlier filing time or

ask for permission to file untimely instruction requests:(b) Instructions: Court must: inform parties of its proposed instructions and proposed action on requests before jury instruction and closing statementsAND must give parties opportunity to object, on record and outside jury’s hearing, before in-struction is given (often at a charging conference)(c) Objections: A party who objects to an instruction or failure to give an instruction must do so on record, clearly stating the matter and the grounds for objection. Objection must be timely: (exception in 51(d))

made at opportunity guaranteed in 51(b) party was not informed of an instruction or action on a request before that opportunity

to object, and they object promptly after learning about the instruction/request action(d) Preserving Claims of Error: A party may assign error regarding instruction actually given (if they objected) or failure to give instruction (if that party properly requested it and properly ob-jected to court actions other than definitive rejection ruling on the record)

Not requesting desired instruction or failing to object to erroneous instruction may constitute a waiver of right to object.

o Fisher indicates appellate courts may scrutinize instructions actually given de novo for errors, and only review rejections of proposals for abuse of discre-tion.

o Wirtz v. Internat’l Harvester held that both parties have a duty to ensure that important instructions are phrased properly, not just the party harmed by im-proper instruction

Courts can also consider plain errors in instructions that affect substantial rights even if the error wasn’t properly preserved

Verdicts—Rule 491. General verdict—who wins? and what damages?

Must be unanimous unless otherwise stipulated

2. Special verdict—answer a series of questions on the issues, but don’t enter a verdict. This means the jury can’t ignore or bend the rules, and we might reduce the chance of error/unneces-sary retrial by letting everyone see what the jury did in finding on facts.

Critique: maybe we need juries to temper the rigidity of legal rules and provide flexi-bility to advance substantial justice, reflect changing social conditions. Too much power to the judge.

3. General verdict with answers to interrogatories (intermediate approach): in addition to the gen-eral verdict, answer a short series of questions about their findings on specific issues. (Problem: what happens when the answers are inconsistent with the verdict, or with one another?)

Non-Jury Trials

Bench Trial—Rule 52“[i]n an action tried on the facts without a jury . . ., the court must find the facts specially and state its conclusions of law separately.” Judgment must be entered under Rule 58.

Findings of fact must not be set aside unless clearly erroneous. Appellate court must consider trial judge’s opportunity to assess witness credibility (52(a)(6))

(b) A party may move to amend findings within 28 days of entry of judgment. May accompany a motion for new trial (rule 59)

Leighton v. One William St (1965) listed purposes of Rule 52: Aid the appellate court by laying out basis of trial court’s decision Clarify what was decided by the case, to allow application of res judicata and estop-

pel principles in later decisionsMake sure the trial judge takes care in ascertaining facts

In Anderson, SCOTUS held that the “clearly erroneous” standard for review applies to credibility findings on documentary/other evidence, as well as witness evidence. Rationale for deference to trial courts= …judicial economy? cost to litigants from “double trial”?

Post-Judgment ProceedingsSo maybe you weren’t eligible for judgment under Rule 50, but you don’t want to let an adverse judgment stand. Why might you be able to get a new trial? 59 refers to history, but that really means stuff like

Judge’s erroneous ruling has tainted the trial (worse than harmless error, per Rule 61) and the moving party objected to that ruling with bad jury instructions or something similar

Jury’s verdict is against manifest weight of the evidence (but the evidence for the ver-dict isn’t totally legally insufficient)

Jury’s award of damages are grossly excessive or inadequateo If this is the case, judge can grant motion for a new trial or offer the nonmov-

ing party a deal for remittituro What if the moving party doesn’t like the deal from remittitur, and wants a

new trial? Too bad, 7th Amendment doesn’t require consent from the moving party on this. The jury “found” damages of $700k on their way up to the ex-cessive judgment of $1.5 mil.

Rule 59 allows motions for a new trial by any party. May be granted:after a jury trial, for any reason fed courts have previously allowedafter bench trialon this motion, court may open the judgment, take additional testimony, amend findings and con-clusions or make new ones, and direct entry of new judgmentMotions must be made within 28 days from entry of judgment, and affidavits must be filed with the motion if it’s based on affidavits. Opposing party has 14 days to respond (with reply affidavits, if necessary)Court may order a new trial sua sponte within 28 days of judgment for any reason that would justify granting a motion, and must then give parties notice, opportunity to be heard, and specify reasons in order for new trial.

Rule 61—harmless error. Court must not modify verdict/judgment or grant a new trial on any error or defect that doesn’t affect any party’s substantial rights, unless “justice requires otherwise.”

Cases:Aetna v. Yeats 4th Cir. 1941 After verdict for ∆, plaintiff moved for JNOV and new trial. Review denied, decision appealed twice. Court reviews history of using JNOV to relieve “miscarriage of justice” when the jury has made a clear mistake or engaged in misconduct. This aids the whole institution of jury trials, by making sure they’re more than “capricious and intolerable tyranny.” We review for abuse of dis-cretion—not present, so affirmed.

Why does it matter when verdict was “against weight of the evidence” rather than legally insufficient? Well, “against the weight” doesn’t allow JMOL but it does allow the judge to order a new trial even if the conclusion isn’t a matter of law—happens when damages are wildly excessive, etc.

Dyer (2d Cir 1952) Held that the standard for granting motion for directed verdict is: must be reviewed by a judge with no regard for “own views of witnesses’ credibility” or what she believes. On a new-trial motion, judge may take her own assessment of credibility into account, to decide if entering judgment would be unjust for some reason (i.e. verdict was against the clear weight of evidence)

Fisch v. Manger (NJ 1957)Everyone recognized that the jury’s award of damages after car accident tort case was insuffi-cient—and instead of granting a new trial, ∆ agreed to bump them from $3k to $7.5k. Motion for new trial denied. Plaintiff appealed on grounds that court had no power to deny on additur (denying application for a new trial on condition that ∆ consent to a specific increase in jury award), Additur has been outlawed in some states, and SCOTUS said in 1935 it was prohibited by the 7th, but remitter has been reaffirmed often.Rather than being unconstitutional, these practices both “avoid further trial where substantial jus-tice may be attained on the bass of the original trial.” However, we think the trial judge in this case messed up and that there should be a new trial. Reversed.

7th Amendment forbids the federal courts from engaging in this practice, unless both parties agree (essentially settling). Upping inadequate jury awards with only one party’s consent is a state court thing only.

Remittur (denying ∆’s application for new trial on condition that plaintiff consent to a specified reduction in jury award) is recognized almost everywhere—though it’s logi-cally/realistically indistinguishable from additur

Powers v. Allstate 1960Plaintiff’s injury award was thought to be excessive. Wis. SC had to decide what standard should determine how much damages got reduced. Local rule, per 1905 case Heimlich, was for judges to set damages at the lowest amount a reasonable jury could have awarded but the general practice nationally was to only remit the excess above what a court believes could be reasonable. Court overruled precedent and adopted the standard (shave off the excess above reasonable award) to decrease number of plaintiffs refusing the remitter in favor of new trials.

Unitherm v. Swift-Eckrich 2006 Defendant moved for JMOL after evidence under Rule 50(a). Motion was denied, jury found for plaintiff. Defendant failed to renew for JMOL or move for a new trial under 50(b). SCOTUS held that a pre-verdict motion under Rule 50 does not, on its own, allow district court to grant a new trial after jury returns verdict. Defendant has to make a post-verdict motion for new trial.

Note: Rule 59 does not require any pre-verdict motion

Hulson v. Atchison (1961)Rule 6 prohibits trial courts from extending time deadlines for actions made under Rules 50, 52, and 59. When ignorance of the rules resulted in a good faith agreement for an extension of time, it was unauthorized and plaintiff has no grounds for relief—motion was untimely. That’s all.

Amendment: Mistakes, Relief From Judgment—Rule 60 Corrections: Courts may correct clerical mistakes, oversights, or omissions in judg-

ment, orders, or record sua sponte or on order, with or without notice. If the case is pending in appellate court, the trial court has to get permission to correct these mis-takes

On motion, court may relieve a party from a judgment/order/proceeding for:1. Mistake, surprise, excusable neglect2. Newly discovered evidence that couldn’t reasonably have been discovered in time to move

for a new trial under 59(b)3. Fraud, misrepresentation, or misconduct by opposing party4. Judgment is void

a. Judgment has been satisfied, released or dischargedb. is based on an earlier judgment that has been reversed/vacatedc. applying it prospectively is no longer equitable

5. Any other reason “that justifies relief”

Motions for relief must be made within a reasonable time. For first 3 reasons: no more than a year after entry of judgment. Motion does not suspend operation of judgment or affect its finality.

Briones v. Riviera Hotel (9th Cir 1997)Non-English speaking plaintiff who was suing for unlawful firing pro se had his case dismissed because he didn’t understand the rules. He moved for relief under 60, and was denied. Appeals court remanded for consideration on factors SCOTUS laid out to consider when negligence might constitute “excusable neglect”

Danger of prejudice to opposing party Length of delay, potential impact on judicial proceedings Reason for delay Whether moving party

SCOTUS reasoning: while ignorance or mistakes in construing the rules don’t normally consti-tute “excusable neglect,” it’s somewhat a “elastic” concept

Patrick v. Sedwick (Alaska 1966)

Malpractice tort case, tried at bench, led to lengthy appeal on findings and judgment for plaintiff wasn’t entered until 1965. Damages were based on evidence presented at trial in 1961. Defen-dant moved for new trial on grounds that a medical treatment developed in 1963 could help plaintiff’s condition, and reduce his damages. New trial denied, no abuse of discretion.Appeals court held that motion for new trial must show evidence that:

a. would probably change the result in a new trialb. had been discovered since trialc. could not have been discovered before trial with due diligenced. is materiale. is not merely cumulative or impeaching

Also must relate to “facts which were in existence at the time of the trial” to count as “newly dis-covered.”

Hazel-Atlas Glass v. Hartford-Empire (1944)Plaintiff sought relief from a judgment obtained by fraud 9 years earlier. A document by a “disin-terested expert” describing a machine as “revolutionary” was actually written by defendant’s em-ployees, and their attorney had participated in the scheme to produce and publish the fraudulent article. This led to an issuance of a patent and determination of patent’s validity by the 3d Cir-cuit. SCOTUS held that the judgment had to be set aside because, even if Hazel should have been more “diligent” in uncovering the fraud somehow, “tampering with the administration of justice… involves far more than an injury to a single litigant.”

Can a court set aside a judgment obtained by fraud sua sponte?In Peacock Records, the 7th Cir. held that if the court weighs evidence of perjured testimony and determines the judgment was obtained in part by perjury, they have a duty to set it aside

Recap: test of legal sufficiency under Rule 50 (JMOL) and Rule 56 (summary judgment) is the same. We just apply 1 to the trial record and 2 to the evidence from the summary judgment record.

If a jury could reasonably find for the nonmoving party, based on the evidence and substantive law, the judge will have to submit the question to the jury

If your motion for JMOL under 50(a) is denied, before evidence goes to the jury, you can renew the motion within 28 days after judgment under 50(b). The judge has to consider whether the jury came to a reasonable conclusion, or was legally obliged to find the other way and just got confused. If yes, judge will disregard the verdict and enter JMOL

Remember, jury verdicts themselves are not the judgment. Most times, Rule 58 says clerk should immediately enter judgment after verdict, but there can be delays. So motions to amend, get new trial, etc. all have to be in 28 days from the entry of judg-ment. District courts lack authority to extend this deadline under Rule 6

o As illustrations from the casebook show, you cannot count on the court to know the rules of civil procedure. You have to know them yourself

o Rule 60(b) lists reasons for a court to vacate a judgment it has entered in the past, and 60(c) puts reasonable time limits on these motions. If the trial court relied on a mistaken understanding of the law, you have to make a timely ap-peal. Rule 60 motions for relief from judgment can’t be used as an end-run around the appeal process.

How is this consistent with the 7th Amendment right to a trial by jury? Do we really need some live kickin jurors? What about Constitutional issues and the right to a trial by jury?

In Arnstein v. Porter (1946) the 2d Cir. expressed concern that liberal use of 56 would allow judges to usurp role of juries, and favor parties who could pay for better lawyers. Clearing dockets w/ summary judgments may unjustly deprive litigants of their “day in court” when there is even the “slightest doubt as to the facts.”

In Poller v. CBS, SCOTUS warned that JMOL should be used cautiously whenever motive/intent is at play. “Trial by affidavit is no substitute for trial by jury” who can weigh credibility of testimony

The dissent in Arnstein (Clark) pointed out that there is no stated presumption against the use of 56, and no restriction on actions where it’s applicable (unlike state summ. judgment procedures). Also, since slight doubt can exist for pretty much anything hu-man, narrowly construing 56 would “encourage trials for the purpose of harassment” and force (possibly unjust) settlements due to sheer inconvenience

But jury trial is not an absolute right—rather, it preserves the rights to trial by jury that existed in courts of common law in 1791. That included a judge’s ability to rule on overwhelming evidence

Demurrer to the evidence—if a party demurred to the evidence, they were admitting the truth of all the other side’s evidence. The judge would then enter judgment for one side or the other.

Rule 50 doesn’t mean that you lose the case if you lose your motion, though. 7th amendment didn’t freeze procedural rules. It can still evolve. The 7th only pre-

serves the jury trial in its most fundamental elements—doesn’t prevent new judicial procedures. Galloway held that JMOL is another way to accomplish the same thing as the demurrer to the evidence

o Ok, it doesn’t put us in a time warp. We don’t have to conduct jury trials ex-actly the same, the rules of evidence have had to evolve… but where do we stop?

Galloway v. US (1943)Does taking a case away from jury on grounds that plaintiff hasn’t met burden of production at trial violate the 7th Amendment? No. Rule 50’s fine

If there was JMOL under 50(a) and the appellate court reverses, there has to be a new trial. If judge denies 50(a) motion, or reserves judgment and gets a jury verdict on the record, and the moving party then appeals, you don’t have this vacuum of “what would a jury have decided?”

Unitherm references the accepted practice of “permitting the jury to make an initial judgment about the sufficiency of the evidence.”

Remittitur/Additur:If the defendant doesn’t like the award (excessive, inadequate) they can move for a new trial. The judge might ask plaintiff to consent to a remitted award, and if they agree the judge will grant judgment for the lesser award (whether or not the defendant is happy about this, the motion for new trial will be denied)

Some state courts will allow additur with the exact same procedure (though plaintiff will be mov-ing for new trial, and defendant agreeing to the increased award as a compromise)

Dimick v. Sheet held that 7th amendment forbids additur in fed district courts unless both parties consent. In Dimick, plaintiff was awarded $500 and moved for new trial. District court judge agreed that the jury award was inadequate, but said they’d grant the new trial unless the ∆ agreed to pay $1500. ∆ agreed, and the judgment was en-tered at $1500… but plaintiff appealed because they still thought this was inadequate and wanted a new trial. SCOTUS thought plaintiff’s 7th Amdt rights were being vio-lated.

o But why not require mutual consent for remittitur? Well, no real rationale. SCOTUS accepted precedents upholding it on stare decisis, but said they wouldn’t have held it constitutional as a matter of first impression. (Is weight of common law tradition good enough?) Well, we tell unhappy ∆s whose op-posing parties have agreed to remittitur, the jury has “passed” $10,000 in dam-ages on their way to awarding $15,000. Total nonsense. Logic tells us they’re functionally equivalent, but that’s not the state of interpretation.

Claim & Issue Preclusion 11/25/13 3:44 PM

Claim and Defense PreclusionA final judgment on the merits of a case by a court of competent jurisdiction bars the adverse parties from subsequently raising claims or defenses against each other that should have been raised in the first suit.

Ex: if ∆ had a claim relating to π’s suit that demanded counterclaim, they can’t sit around and bring that as a separate suit after π’s cause of action has been settled

Dismissals for failure to state a claim will work the same way. Dismissals that aren't “on the merits,” like dismissal for lack or subject matter or personal jurisdiction, or failure to join an indispensable party, will not preclude future claims.

Most jurisdictions use a “transaction or occurrence” test—a judgment on the merits precludes any claims or defenses that could have been asserted in the first case. We don’t want you splitting multiple claims against ∆ up into multiple suits, so claim preclusion. A judgment can “extinguish” claims for relief that should have been asserted, whether or not they were.

What about when we have multiple, sufficient alternative holdings? i.e. Jury finds for defendant on the basis that (a) plaintiff was contributorily negligent and 100% barred, in this jurisdiction AND (b) defendant was not negligentDo both of these holdings deserve issue preclusive effect? (Neither was necessary, so Rest 2d Judgments says neither is issue preclusive) States and federal districts are split on this.

RushOverruled Vasu’s narrow view of preclusive effect of claims, by differentiating between suits for personal and property damage

Issue Preclusion (old name=collateral estoppel)A final judgment by a court of competent jurisdiction can also bar a party to the original suit from relitigating issues that were actually litigated and decided in the first suit after the party had a full and fair opportunity to be heard, if the determination of those issues was necessary to the judgment that was entered in case 1.

Operates on a question of fact, or on a question of how law should apply to facts. When a court has decided a factual issue and rendered judgment, and it comes up in another case, a party to the first case shouldn’t be allowed to re-litigate it in the second case. You might be estopped from denying the findings of the first case—even if the claims for relief arise out of completely differ-ent transactions.

Russel v. PlaceSCOTUS 1876Facts: Judgment in case 1 said that ∆ had to pay damages to the plaintiff. We know the jury re-turned a general verdict of infringement, but we don’t know whether the verdict was based on the first or second claim of the patent (2 techniques for treating leather listed in one patent) or both.

Posture: Plaintiff claimed that defendants had infringed a patent (again) and defendants ar-gued that the patent was invalid because no novelty (same as in the first case)

Reasoning: SCOTUS concluded that issue preclusion shouldn’t prevent litigation of the issue because the face of the record in the first suit (and evidence introduced in the second suit) didn’t show what the jury had really decided about. So contesting the validity of both claims (again) in the second suit isn’t precluded—even though the jury in case 1 definitely held that at least one patent claim was valid. What’s going to be enjoined by the judgment here depends on which claim is valid and we have no way to answer that from the previous verdict. Notes: Tactical considerations inherent in asking for general verdict vs. jury answers on specific questions: special verdicts are more difficult to defend on appeal (because the jury doesn’t tell us what they’re thinking) but they may have more broad power for issue preclusion.

Rios v. Davis (pp1246)Civ Appeals of TX, Eastland 1963Posture: Rios sued Davis to recover damages for a car crash. Jury found that everybody in the first suit was negligent. Appellate court held that the jury’s finding about Davis was the basis of judgment, and the finding about Rios’ negligence was completely irrelevant to the judgment entered against Davis. What they had to say about Rios’ negligence didn’t matter.

Law/Rule: Contributory negligence was a complete bar in TX at this time.

Reasoning: One of the requirements for issue preclusion is that the determination of the issue was necessary for the judgment that was entered. No preclusion of negligence claim in second suit because of first trial finding about Rios’ negligence was irrelevant.

Baldwin v. Iowa State Traveling Men’s Ass’nMissouri court rules that they have personal jurisdiction over a defendant who properly contests jurisdiction (appearing for limited purpose of contesting jurisdiction). Defendant skips town, and MO court ultimately enters judgment against him, no appeal (∆ is ignoring them)… plaintiff brings a separate lawsuit to collect on the judgment, and defendant argues that the MO court never had jurisdiction in the first suit.

SCOTUS held that there can be no “collateral attack” on the first judgment, because the issue was litigated (issue preclusion kicks in). Appearing to contest the issue counts as ∆ recognizing the MO court’s authority to resolve the issue… and if you wanted to challenge the resolution you should have appealed rather than waiting to bring it up in a later suit.

Defendants who never show up at all have the right to attack collaterally later on. Matter was decided, but not actually litigated in the sense that’s relevant to issue pre-cluded. Judgments entered by default can have claim preclusive effects, but not issue preclusive effects under the majority of jurisdiction.

Res Judicata at work 11/25/13 3:44 PMWho can benefit from preclusion? Who’s bound by it?General rule is that you’re bound by a lawsuit only if you were a party—you shouldn’t be bound by a judgment if you haven’t had your day in court.

Claim preclusive effect only operates between adverse parties in the case that went to judgment (and parties in privity, i.e. a party assigned interest in a claim that’s already been asserted).

If A sues B for claim X, but does not raise claim Y (related to the same occurrence or transaction) then A’s claim for Y is extinguished by claim preclusion. Waiver also kicks in when ∆ chooses not to raise a mandatory counterclaim

Unlike issue preclusion, claim preclusion won’t typically benefit someone who wasn’t party/in privity to the original suit.

Does the person who’s trying to assert issue preclusion have to have been a party? Old rule of mutuality says yes: you can only benefit from preclusion if you could also have been bound by an adverse judgment. Erosion of mutuality has expanded who can benefit from the issue preclu-sive effect of a judgment. (and maybe that’s not all that great of a thing)

Defensive use of issue preclusion: defeat a claim that’s being made by a repeat claimant (who wants to sue someone else after they’ve lost). D2 gets to take advantage of a judgment which couldn’t have gone against them.

Bernhard v. BofA (pp1272)SC of CA 1942Reasoning: Anyone should be able to use issue preclusion defensively against someone who’d had the opportunity to be heard in court and got an adverse judgment.

Blonder-Tongue Labs v. U of IllinoisSCOTUS 1971Can someone who wasn’t a party to the first suit invoke issue preclusion against a repeat plain-tiff?

After they lost their first case, the university brought a patent infringement against someone else. They should be bound by the judgment that the patent was invalid? Well, D2 wasn’t a party in the first case so there’s no mutuality. SCOTUS said that you can’t relitigate issues by seeking out a new adversary—even though D2s wouldn’t have been bound by judgment for D1s, they should still be allowed to benefit from the first court’s decision. Defensive non-mutual issue preclusion claims are fine.

But the party against whom preclusion is being sought must have had a full and fair opportunity to litigate the question

Offensive use of issue preclusion: Can a plaintiff use issue preclusion against a repeat defendant?

P1 got a defendant against ∆. P2 wants to piggyback on that judgment, estop ∆ from denying the truth of the factual judgment issued in case 1. Allows potential plaintiffs to “sit back and wait” for a favorable judgment without risking anything.

ParkLane Hosiery Co. v. ShoreSCOTUS 1979Facts: Shortly after shareholders sued under the Rather than legal relief, the SEC was seeking equitable relief and had its suit tried without a jury—so they got judgment first.

Posture: District court entered judgment that Parklane’s proxy statement was materially false and misleading after the SEC bench trial (P1). Plaintiffs in the private class action lawsuit (P2) moved for partial summary judgment based on allegedly issue preclusive effect of P1’s judgment. Motion denied on basis of 7th Amendment’s right to a jury (which ∆s couldn’t get in a suit for equity). 2d Cir. Court of Appeals reversed.

Reasoning: Offensive use of collateral estoppel (i.e. issue preclusion) isn’t going to promote judicial economy in the same way that claim preclusion does. It’ll discourage plaintiff from “bundling” claims against defendants and encourage a whole bunch of sequential suits.

A categorical rule allowing defensive uses of nonmutual exclusion, on the other hand, are going to have different effects. Plaintiff has the incentive to bring all potential de-fendants into the proceedings

Courts shouldn’t permit either offensive or defensive nonmutual issue preclusion when there’s an issue of fairness—i.e. if P1’s suit against D is only for $100, the ∆ might not put much effort into the litigation. If P2 then shows up and sues for $10million, it seems unfair to say that D can’t re-litigate the issue, when there’s so much more at stake. But that’s not the case here—the company had every reason to put up a vigorous defense against the SEC and it was impossible for share-holders to join the SEC’s suit.

Currie’s Railroad hypothetical:

50 people are injured in a train accident. What about if plaintiffs 1-25 all sue the railroad for an accident and the ∆ railroad gets 25 verdicts… but P26 gets a judgment against the RR. The 27th plaintiff shouldn’t get issue preclusive effect because verdict of negligence looks like an outlier. We don’t want to magnify those consequences when the railroad couldn’t turn around and use is-sue preclusion offensively to defend against negligence charges.

But if P1 happened to get a judgment against the RR, the ∆ may suffer from an anomalous first judgment in a jurisdiction that allows non-mutual issue preclusion. We have to worry about accuracy. There’s no reason to think that the first judgment is correct, rather than the second.

Recognizing offensive non-mutual issue preclusion can actually decrease accuracy. If the railroad has its whole liability for 50 cases riding on the first case, they might pour a disproportionate amount of resources into that first case. And the plaintiffs might be jockeying to get an especially sympathetic person up on the stand.

Martin v. Wilks pp1289SCOTUS 1989Birmingham’s settlement with black firefighters for racial discrimination in employment included an affirmative action-type hiring policy. White firefighters then sued the city for “reverse discrimination.” The city tried to invoke issue preclusion to defeat P2’s claims in case 2… but the court of appeals reversed a district court holding for the city on grounds that, because white firefighters weren’t a party to the earlier litigation, their claims weren’t precluded. They haven’t had a day in court.

Existing preclusion doctrines don’t kick in here, even if P2s had the opportunity to in-tervene and chose not to. They’re not at risk of suffering preclusive effects if they choose not to intervene

A settlement between one group of employees and their employer can’t possibly settle the conflicting claims of a whole other group who hadn’t joined in the agreement.

Notes: Congress later overruled the holding of Martin in the Title VII arena in 1991. No challenges to consent decrees by individuals who had notice and opportunity to intervene or whose interests were represented adequately.

Sometimes, a person who wasn’t a party to a case is nonetheless bound by the judgment—they’re in privity. That word isn’t very helpful. Let’s check out what circumstances might pro-duce a binding judgment for a nonparty.Taylor v. Sturgell

SCOTUS 2008Issue: Can I get my friend to re-litigate my issue for me?

Facts: Plaintiff brought a FOIA suit to get the same documents his friend, Herrick, had previ-ously sought unsuccessfully. There’s no legal or financial relationship between the two.

Posture: District court granted summary judgment on the grounds that Herrick’s interests were being “virtually represented” by a party in the suit. They developed their own test based on the 11th Cir, where the 2 necessary factors for virtual representation are: identity of interests; ad-equate representation

Holding: Remanded for consideration of agency relationship

Law/Rule:Test to identify interests in common between a party and a non-party (11th Cir): Does the present party have:1. a close relationship with the party whose judgment is allegedly preclusive2. history of participation in the prior litigation3. apparent acquiescence to the preclusive effect of the judgment4. deliberate maneuvering to avoid preclusive effect of the prior judgment5. adequate representation by a party to the prior adjudication6. a suit raising a public, rather than private, issue of law (i.e. Constitut’l)(4th Cir. uses a narrower test, requiring that the party be accountable to the nonparty and the court have given tacit approval to a party to act on a nonparty’s behalf)

Reasoning: Usually, someone who wasn’t a party won’t have had full and fair opportunity to litigate claims and issues settled in a previous case. There are 6 general exceptions to the rule against nonparty preclusion:1. nonparty agrees to be bound by a judgment2. substantive relationship justifies preclusion of a nonparty (privity)3. nonparty’s interests are represented adequately by a party to the suit (i.e. trustee or guardian)4. nonparty has assumed control over a lawsuit5. special statutory schemes, like bankruptcy, that are brought on behalf of the public may bind

a nonparty

The arguments in favor of an “expansive doctrine of virtual representation” basically boil down to: the relationship between a party and a nonparty is “close enough” based on an “amorphous balancing test.” Let’s not make discovery more expensive (and judges’ lives more confusing) we want crystal rules on nonparty preclusion, not muddy standards. States can enact laws to limit repetitive public law claims, and courts can use stare decisis to dis-pose of repetitive suits too.The only thing that would preclude Taylor’s suit is if he were acting as an agent of Herrick (even “undisclosed”) so let’s let the court decide that.

States can set their own rules for intRA-system preclusion. What effect a VA state court judg-ment will have in subsequent VA state court cases is up to VA.But often, questions of preclusion are presented in a different jurisdiction than the original suit. Whose doctrines of preclusion should we use, in that case?

State-State (one state has to decide how to treat another state’s judgment) Basically, if the courts of the rendering state would treat its own decision as preclu-

sive in a given circumstance, other states have to give that judgment the same preclu-sive effect

Some commentators say you only have to pick up the “core” aspects of a rendering state’s preclusion doctrines, but the majority say that you have to pick up the whole thing, without regard for what might be peripheral

When does peripheral stuff make a difference? Well, mutuality.What if the court granting judgment would require mutuality for preclusion? Most courts will al-low other courts to limit the effect of their own proceedings, and employ the rules of the render-ing court on nonmutual preclusion. Some, however, have opted to give nonmutual preclusive ef-fect to a judgment that the rendering state’s courts wouldn’t consider preclusive.

People generally agree that you have to give another state’s judgment “at least” the preclusive effect that the rendering state would give them. The fighting issue is the converse question

Finley v. Kesling 1982 Illinois court concluded it could apply collateral estoppel regardless of what the earlier court (Indiana) would have done in the circumstances. In the end, though, they grounded their decision on the rationale that Illinois wouldn’t permit a party to contradict sworn testimony from the prior proceeding

States have a great deal of latitude in evidentiary stuff related to enforcement proceedings, and may also refuse to honor judgments based on pure in rem and quasi in rem proceedings. If one state’s statute of limitations has run, it may not allow enforcement proceedings (even if the ren-dering state would). And states can also choose to exempt certain property from enforcement proceedings that would have been attached in another state.In Parker v. Hoefer NY opted to give a VT judgment full faith and credit, even though the un-derlying claim wouldn’t have been enforceable in NY.

Authority:Constitution Article IV: Full Faith and Credit (applicable only to state courts)“Full faith and credit shall be given in each state to the public acts, records, and judicial proceed-ings of every other state.”Congress may prescribe the manner in which acts and judicial proceedings shall be proved, and the effect thereof28 USC § 1738 Full Faith and Credit—fed statuteProperly authenticated legislative acts, records, and judicial proceedings “shall have the same full faith and credit in every court within the US and its territories/possessions as they have by law or usage in the courts of the state/territory/possession from which they’re taken”

State-Federal (the Constitution doesn’t apply here)Generally, the rule under the full faith and credit statute is the same as state-state preclusion. Fed-eral courts will give state decisions the exact same preclusive effect that they would have in that state (even if the cause of action arose under federal law, state preclusion doctrine holds).

Marrese v. Am. Academy of Orthopaedic Surgeons (SCOTUS 1985)Two-step approach to determine preclusive effect of a state judgment in a subsequent suit over which fed. courts have exclusive jurisdiction:

Applying §1738 (full faith/credit statute), fed. court must determine whether state claim preclusion law would preclude the federal suit

If yes, then the fed. court must determine whether the relevant federal law granting jurisdiction has an implicit or explicit exception to §1738

Marrese will usually prevent preclusion of a federal suit through a previous state judgment. State rules of prior jurisdictional competency prohibit preclusion of a claim beyond the rendering court’s jurisdiction (such as an antitrust or copyright claim over which fed. courts have exclusive jurisdiction)

Matsushita v. Epstein SCOTUS 1996 held that a DL settlement of a securities class action suit was entitled to full faith and credit even though it involved claims within the exclusive subj-mat-ter jurisdiction of fed. courts.

Why do state courts have to grand prior federal judgments preclusive effect? The Full Faith and Credit clause doesn’t apply, and most people agree that §1738 doesn’t either. Our best guesses are the Supremacy Clause and the “case or controversy” doctrine.And states will apply federal preclusion rules when the federal court judgment involved a federal question. But what about if the district court decided a state law claim? Does the Erie doctrine mean that state courts have to adopt the preclusion rules of the state in which the fed. court sits?

Rest Judgments says that federal law ultimately controls choice of preclusion rules, and should mandate application of state rules when they’re important to effect sub-stantive state policies

Effect of a federal judgment (federal-state or federal-federal court)The effect of federal judgments are beyond the preclusive authority of states. It’s a matter of pure federal common law (because it doesn’t show up in the Constitution or any federal laws/rules of civil procedure)Congress could pass a statute regulating the preclusion doctrine governing judgments rendered by federal courts. They just haven’t

Scalia is worried that governing preclusive effect of federal judgments would go be-yond the Rule Enabling act and create, abridge, or modify substantive rights. But that’s hypothetical

Rule 41 Dismissal(A) Plaintiffs can dismiss without a court order by filing proper notice or stipulation, or they can ask for a court order for dismissal without prejudice (meaning they can refile same suit on the same claim later). If plaintiff fails to comply with these rules or a court order, defendant can move to dismiss the whole action, or any set of claims. Dismissals from ∆’s motion operate as adjudication on the merits unless grounds for dismissal are: lack of jurisdiction, improper venue, failure to a join a party under Rule 19

Semtek Internat’l v. Lockheed MartinSCOTUS 2001Issue: What’s the applicable doctrine of federal common law to determine the preclusive effect of a federal court’s judgment (hint: it depends on the nature of the judgment in question)

Facts: Semtek alleged that they’d made a contract with a Russian corp, and Lockheed induced the Russian corporation to breach that contract. Diversity action for breach of contract and busi-ness torts in CA court removed by ∆ to federal court. Dismissed on the merits on ∆’s motion for failure to state a claim (rule 12), because suit was barred by CA statute of limitations (>2 years after relevant acts, though Semtek tried to plead fraudulent concealment to waive limitation is-sue) 9th Cir. affirmed dismissal.

Posture: Plaintiff then brought the same lawsuit against Lockheed in Baltimore, alleging same causes of action, which weren’t time-barred in MD (3 year statute of limitations). ∆ asked CA fed. court to enjoin, and removed the MD action to fed. court on federal question grounds. CA denied request to enjoin, and MD fed. court remanded to state because the federal question only came up in a defense. MD state court granted dismissal on basis of res judicata—claim preclusion because of the judgment rendered in CA district court. Plaintiff appealed, court of ap-peals affirmed because a federal court dismissal barred the MD complaint. Plaintiff appealed again.

Holding: Reversed. Let’s hear the case.

Law/Rule: Federal common law governs claim preclusive effect of a dismissal by a federal court sitting in diversity: state preclusion rules should apply whether the dismissal was ordered by a federal or state court (provided that the state law isn’t incompatible with federal interests)Articulated in the style of common law, with the same authority as written federal statutes.

Reasoning: Plaintiff argues that a dismissal by CA state court wouldn’t be claim preclusive, so dismissal by CA federal court shouldn’t either. Defendant argues that Rule 41 “adjudication upon the merits” controls. Fed court dismissal specifically stated that it was “on the merits” and didn’t have to do with one of the exceptions in Rule 41, so ∆ says preclusive effect.But actually, some judgments that are supposedly on the merits aren’t really, and don’t automati-cally have claim preclusive effect. See Rest. Judgments §19, a at 161. Rule 41 is about internal proceedings of a rendering court, it’s not really about the effects accorded federal judgments by other courts. It just means that plaintiff couldn’t re-file the same claim in the same court, has nothing to do with claim preclusive effect of the judgment in another court. (unprecedentedly narrow interpretation of 41(b))

Traditionally, time limits bar remedies, and don’t alter substantive rights. Having a different preclusive effect for fed vs. state dismissals would lead to the kind of vertical forum shopping we want to avoid (Erie federalism issue). We think that 41(b) “adjudication” is just the polar oppo-site of 41(a) “without prejudice” and means that a plaintiff doesn’t get a second shot in the same court.

A federal court sitting in diversity should have more or less the same effect as a state court, to avoid Erie issues. Applicable principles here would incorporate CA doctrines of claim preclusion unless they’re “incompatible with federal interests.”

If a state court in CA had done what the district court in CA did, would CA law afford claim preclusive effect to that judgment? If CA says there’s only issue preclusive ef-fect, then bringing the claim in MD court is fine because the issues are slightly differ-ent.

Notes: This is about claim preclusion, but the same answer would come up with respect to issue preclusion: federal common law will govern