Civil Procedure Outline

I. Subject Matter Jurisdiction

A. Introduction Rule 8 a) Claims for relief leadin! s"all contain# s"ort and lain statement of t"e !rounds u on $"ic" t"e court%s subject matter de ends& unless t"e court alread' "as jurisdiction and t"e claim needs no ne$ !rounds of jurisdiction to su ort it. Rule ()"* $"enever it a ears b' su!!estion of t"e arties or ot"er$ise t"at t"e court lac+s jurisdiction over t"e subject matter& t"e court s"all dismiss t"e action. . . Ca ron v. ,an -orden (prior to Rules of Civ Pro) Capron fails to establish SJM initially and then goes to the court requesting that the case be dismissed on the grounds that 1) o mention of SJM and !) o SJM" Case is dismissed" Represents the courts Represents the courts brea#ing of procedure to maintain the purity of the system" Rule (.a does not apply at this state because there is no pleading this is an appeal" )8 /SCS 0 (1.* 2efective jurisdiction ma' be amended & u on terms& in t"e trial or a ellate courts. (rule of forgiveness $hich encourages sloppiness" Safety valve) %&ceptions3'ac# of SJM cannot be challenged later o Res Judicata o Collateral %stoppel 4. 2iversit' Jurisdiction i) Introduction# (rant of Jurisdiction from Article III& 0) of Constitution. o (**) does not allo$ t"e full statutor' !rant in t$o $a's. )mount in Controversy *+, 2octrine of A!!re!ation may add up amts" from different claims as b-t same parties to meet the amt" in controversy requirement" Complete .iversity Requirement" (Stra$bridge v" Curtis) ii) 2omicile determines citi5ens"i 3 )n alien is a citi/en of the state in $hich he is domiciled" a 2omicile "as a uni6ue federal meanin!# (1) 0here you are found (!) 0here you intend to remain (1) (or it can be the last place you $ere domiciled as in Mas) b Mas v. Perr' 7.t" Cir.& (89:) .efendant appeals on ground of lac# of diversity 2urisdiction" Plaintiff $as a citi/en of 3rance4 and under common la$4 his $ife $ould also be considered a citi/en of 3rance and thus a citi/en of no state (outside of the reach of 0 (**))" Court suspends common la$ rule5 0hen husband is an alien4 the common rule no longer applies" (1) Courts decision to suspend the rule of unity of domicile4 $as motivated by desire to preserve the ultimate goal of the rule4 to preserve the ability of 6usband and 0ife to Sue together" c Co orations are citi5ens of $"erever t"e' are incor orated and $"ere t"e' "ave t"eir rinci al lace of business (1) 0 (**) 7c) ( a corp is a citi/en of all states $here it is incorporated" Most states only incorporate in 1 state" 7ou are also the citi/en of the 1 state $here the corporation has its principle place of business" 7)) ;<AM C=;A># (i) 'oo# at corporation8s nerve center $here decisions are made (headquarters)" (ii) 'oo# to corporation8s muscle center $here corporation does more 9stuff: than any$here else" Manufacturing" (iii) Most court8s loo# to the total activities of the corporation $e $ill use the nerve center as the principle place of business4 unless all the activities are in a single state" ;f the there are + plants in different states4 then $e $ill loo# to nerve center4 but if all plants are in one state4 that is $here $e $ill loo#" (iv) 7ou must analy/e on e&am4 tal# about nerve4 muscle4 total activities" (v) ;<AM =?PO< . is incorporated in .ela$are4 factory in P)4 headquarters in 74 other plants in = other states" 0e #no$ its .ela$are citi/enship and also analy/e 1 factors to figure out principal place of business" (1) .iversity is determined at the time complaint is filed and is not affected by subsequent changes in domicile of parties" 7:) St. Paul Mercur' Rule# @ives t"e benefit of t"e doubt to t"e A t"at t"e claim $ill meet t"e amount in controvers' unless it is 6uite clear it $ill be less. This rule is heavily weighted toward the Where there is

a legitimate debate, the congressional mandate is satisfied. Hard time in keeping intangible damages out of federal court. C. Bederal Cuestion JurisdictionDIm lied Remed' 2octrine i) Introduction a 3ederal Courts did not have arising under Jurisdiction until 1>*+ (1) ?o encourage uniformity of interpretation of 3ederal 'a$ (!) 3ederal Judges are smarter4 and have greater e&pertise (1) Provide for a vindication of federal rights against states" b 'i#e .iversity Jurisdiction4 Statutory (rant of 9)rising @nder Jurisdiction:4 )8 /.S.C. 0(**( is not the full Constitutional amount" c 0hat does arising under meanA ;s the primary question (1) 3irst4 $hen loo#ing at arising under 2urisdiction4 as# $hat th the proper contours of the claim are4 " " " $hether the claim is as lean as it could be or $hether it is anticipating defense ii) Eell leaded com laint rule a ) federal question that arises under an anticipated defense cannot be the grounds upon $hich the case reaches federal court" b Fouisville G -as"ville R. Co. v. Motle'& Scotus 7(8H8) (1) Court too# notice of lac# of 2urisdiction sua sponte B doesn%t arise under" (!) Cause of action here $as breach of contract < state la$" (1) Plaintiff8s attempt to antici ate defense that federal la$ $ould preempt their claim < Court says cannot do that" (C) ?he federal claim must arise on the face of a $ell3 leaded com laint" (+) ?he D doesn8t create a federal question by anticipating4 in the complaint4 a federal defense" iii) * t"eories3 >"e Sco e of Bederal Arisin! /nder. a CreationICause of Action >"eor' 7Justice =olmes3American Eel$ort") (1) arro$ under Constitution and !> @SC E 1111 (2 !nly if the federal law creates the cause of action b In!redient or J4ut for >estK 7Justice Mars"all& Osborn v. 4an+ of t"e /nited States&) 7() Osborn v. 4an+ of t"e /nited States& (i) Constitutionally this case can go to 3ederal Court B the ban# $as created by federal la$" 3ed 'a$ is an indispensable ingredient to the creation of the Fan#" (?here is a causal chain that is rooted in federal la$) (ii) 0ithin the charter4 the Congress has conferred Jurisdiction in 3ederal Court" ?his $as sufficient4 but $e don8t #no$ until the GH8s that this $as necessary condition" ?he charter must e&pressly say 9 sue in federal courtK c Meanin! and A licaton3 7Smit"& Moore& Merrell) (1) )n federal question arises4 by requiring decision ma#er to engaged some decision of 3ederal 'a$" ?he courts have decided that there is a Constitutional Po$er to send some cases to Court even $hen the claim does not arise under federal la$ (i) 6arms v" %liscu B I4 6arms Co and J %liscu are fighting about the copyrights to a song" o diversity this must come to court as a federal question" 'o$er court decides that there is no )rising @nder Jurisdiction because court need not open up the copyright statute and interpret it" Judge 3riendly distinguishes from an action for infringement4 $hich $ould require interpretation" 1" Congress could have granted 2urisdiction in this case4 but Congress did not use it because they didn8t include the language in the grant" !" ?his doesen8t get in via E 1111 B Constitution has immaent po$er but does not have the steam to structure the system" ?he congress must parse and allocate federal Jurisdiction" 1" ?his case $ould go to federal court under Ksborne4 the distinction made is that 3ederal la$ here creates the entity at issue and not the parties at issue" !> @"S"C" E 111> are speciali/ed grants to the federal courts not arising from 111!" (ii) Smith v" ,ansas City ?itle and ?rust Co"4 State la$ creates the cause of action" Claim is that J is investing4 contrary to MK corporate la$4 securities unla$fully created" ?o resolve this question court must resolve an issue of $hether the )ct authorin/ing the issuance $as Consstitutional< ?his case goes to federal Court" (iii) Moore v" Chesapea#e L Khio< I claimed under state liability act that they could not be held contributorily negligent because J employer violated a federal statute" 7ou can8t avoid loo#ing at the federal la$" ?he court does not allo$ this to go federal Court" Court says federal la$ issue is not substantial $ithout adequately distinguishing from Smith" 7iv) Merrell 2o$ v. >"om son 7SCO>/>S (881) 1" I sues Merrell .o$ in Khio State Court" Merrell .o$ Removes to 3ederal Court4 I ob2ect asserting that there is no SJM

?he ma2ority of the claims are state la$ claims $ith one claim under the 3C.) $hich if the J have violated $ill be negligent per se" ?he =th circuit finds that there is no federal SJM here because liability could have been found $ithout loo#ing at the federal statute< ?he outcome doesen8t depend on the Meaning and application of the 3ederal Statute" 1" SCK?@S creates a ne$ theory of meaning and application test5 3ederal 2urisdiction applies if there is a federal la$ claim under $hich there could be a separate cause of action filed in federal court 0ithout an independent Cause of )ction there can be no 3ederal Jurisdiction 2oes not re6uire t"at t"e A sue on t"is 6uestion& onl' t"at t"e cause of action eLists. C" Fecause the Court finds that there is no independent cause of action that comes from the 3ood .rug and Cosmetic )ct4 there is no SJM 9arising under: +" ;f federal question $asn8t necessarily decided as part of case4 then it doesn8t meet the meaning-application theory criteria" ecessarily decided test" =" 9) complaint alleging a violation of a federal statute as an element of a state cause of action4 $hen Congress has determined that there should be no private4 federal cause of action for the violation4 does not state a claim Marising underN8: d Im lied Remed' 2octrine# (1) 2issent in Merrel 3 .oes lac# of mechanic for bringing a cause of action4 ma#e a statue any less substantial in deciding a state la$ issueA (!) .ecision does nothing to for$ard goals of federal 2urisdiction 1) nothing to for$ard uniformity or e&pertise4 !) neutral at best on the protection of federal rights" (1) @nder the Common 'a$ rights and Causes or )ction $ere unified (C) Statutory commands $hich often ma#es prescriptions but does not supply $hat to do if prescriptions are not follo$ed" 1" ;s there a cause of actionA !" 0hat is the Remedy A 1" 0hat is the JurisdictionA (ii) Cort v )sh4 (Scotus4 1G*+) B I sues Fehlehem violation of 1> @SC =1H4 $hich prohibits contributions of corporate funds to political parties" 3irst remedy is dismissed< change in la$" ?he court then deals $ith the question of damages (iii) Sets up a four part test to determine implied remedy5 1" ;s the I of the class entitled to protectionA !" )ny indication of the legislative intent to create or deny a remedyA 1" ;s it consistent $ith the legislative intent to apply a remedy ( 0hat is the la$A .oes Suing advance purposeA)(($ill the suing by stoc#holders reverse or change corporate influence))A C" ;s the cause of )ction traditionally relegated to state la$4 ma#ing it inappropriate to infer federal cause of actionA (iv) ;n this case4 Court found no private cause of action implied" ;ntervening legislation by fed" election commission created an enforcement mechanism for complaints relating to violations of election la$" (v) Schooner Peggy .octrine (side note)5 1" ;f bet$een 2udgment and decision of appellate court4 a la$ intervenes and positively changes the rule $hich governs4 the intervening la$ should be applied" 2octrine of retroactivit'" !" ?he court must ma#e decision in light of la$ as it stands $hen the court ma#es its decision" (vi) 4ivens v. SiL /n+no$n A!ents of B4I 7SCO>/S& (89() 1" Court creates an implied right of action from the 3ourth )mendment of the Constitution B to be free from unreasonable search and sei/ures" (vii) 4ell v. =ood don%t need an eL ress remed' Fivens < don8t need an e&press cause of action either" 1" Flac# dissents5 Congress should create these causes of actionO the Courts should not pull them out of no$here" Congress specifically granted a statute for federal cause of action against state officials acting under color of state la$ < E1G>1 B $hy didn8t they create one for federal officialsA !" ?oday4 courts tend to loo# to plain meaning of statute to see if a right of action is created4 hesitate to imply a right of action"

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2. Su lemental Jurisdiction i) Introduction a Multiple Claims and Multiple Parties some of $hich4 if loo#ed at alone4 $ould not have federal Jurisdiction 7Ridin! t"e Coattails) b Prior to !> @SC E 11=*4 the terminology spo#e of pendant or ancillary claims" ?erminology obsolete and $e no$ tal# about supplemental claims and supplemental parties"

3irst4 Primary Claim B determine and distinguish primary claims from supplementary claims Second4 ;dentify claims that are asserted against same party and separate parties" 11=* gives very different treatment to claims that involve same and different parties" ii) Joinder of Claims a Rules# 7() Rule (*7a) Com ulsor' Counterclaims (i) Must arise from same ?LK (same scope as Res Judicata) (ii) 3ailure to assert leads to $aiver leads to $aiver of the counterclaim 7)) Rule (* 7b) Permissive Counterclaims (i) .oes not have to come from same ?LK (ii) 3ailure to assert does not arise in 0aiver (iii) Permissive only to the e&tent that they are not barred by Res Judicata 7*) Rule (* 7f) Omitted Counterclaims# (i) Court may allo$ amendment to fi& omitted counterclaims 7:) Rule (* 7!) Cross Claims# (i) Permissive4 o 0aiver (ii) Must arise out of same ?LK 7.) Rule (8 7a) Joinder of Claims (i) Party Ma' 2oin as many claims as they have $hether or not same ?LK4 Supplemented by the rules of Res Judicata (ii) )llo$s aggregation of claims for amount in controversy requirement" b Joinder of Parties# 7() Rule (: >"ird Part' Practice -ot as Stron! as rule (i) ot as strong as 1G in 3orcing 1rd party onto a claim" I can ob2ect 7)) Rule (: 7a) E"en M ma' 4rin! in >"ird Part'. 7Im leader) Joint >ortfeasors (i) J may implead a third party that is responsible for all or some of the I claim against the 1rd party I (ii) 1rd party J may assert counterclaims or cross claimsO raise defenses agains plaintiff8s original claimO assert claims arising out of the same ?LK against I (R/F; (*) 7*) Rule (: 7b) E"en a A ma' brin! in a *rd Part' (i) 0hen a counterclaim is asserted against a plaintiff he may implead a third party J under the rules above" (C) Rule (8 Com ulsor' Joinder of Parties 73orcing Parties onto a case) (i) Parties needed for a 92ust ad2udication:<necessary parties for case to progress (ii) ! Categories5 necessary and indespensible (+) Rule (87a)3 Requires 9necessary: parties to be 2oined if it $ill not deprive the court of SMJ (=) Rule (87b)3 0hen 2oinder of a 9necessary: party is not possible4 provides for dismissal of the case or if the party is not necessary4 the continuation of the la$suit $ithout the party" (*) >em le v. S'nt"es# 7SCO>/S& (88H& Court does not allo$ dismissal as doctor is not a necessar' art'& joint tortfeasors are al$a's ermissive arties I ;n2ured by a plate in his spineO sues manufacturer J in federal court and sues the doctor in state court" J moves to dismiss for failure to 2oin necessary parties (.octor) under Rule (87b)" (i) o inquiry under Rule 1G (b)4 because requirements under Rule 1G (a) not satisfied" (ii) Reasons barring Res Judicata for this case include no final 2udgment and the parties are different" 78) Rule )H Permissive Joinder of Parties# (i) (rants permission for federal la$suits $ith multiple parties on either side of the 9v: (multiple I or J) B parties can come together and sue (ii) ?$o requirements for 1" Claim must arise out of same ?LK !" Claim must have a common question of la$ or fact (G) ) and F do not have to include C<Sub2ect to rule of intervention 7(H) Rule )) Inter leader 7i) See also )8 /.S.C. 0 (**. 7ii) -ation$ide service of Process aut"ori5ed 7(() Rule )* Class Actions 7See Su lement) 7()) Rule ): Intervention used b' outsiders 7i) Rule ): 7a)3 Intervention of Ri!"t 1" Mandatory party has right to be in suit !" Permissive must get permission from Court 1" Strict test for Mandatory intervention5 statute must confer a right to intervene4 or have an interest in the prop" )nd the interest of the intervening party is not protected by e&isting parties 7ii) Rule ): 7b) Permissive Intervention 1" Must have a common question of la$ or fact

c d

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.ifficult to get B2udge $ill consult the e&isting partie"

iii) Pre 0 (*19# /MEA v. @I44S& 7SCO>/S& (811)& >"e 6uestion is $"et"er t"e rimar' claim can carr' secondar' claims into federal court. (ibbs bringing suit under E 1H1 of 'abor Management and Relations )ct and ! additional Contract Claims" a Claims for $"ic" t"ere is no inde endent basis for jurisdiction must arise common Doctrine of Res Judicata is -ucleous of o erative BactK hovering above Gibbs. Failure b Claims arising from same 9nucleus: satisfy the Constitutional requirement of same case to join these cases will prevent the adjudication of the contract Kr controversy%volves into same transaction and occurrence c Reasons to dismiss a endant claim# (1) Primary federal claim is dismissed early in the case" (!) Puestions of State la$ predominate (1) Combining t$o claims $ill confuse the 2ury" Pendent claims in diversit' jurisdiction cases (1) )LF are of diverse citi/enship and primary claim meets the amount in controversy requisite (!) )dditional claims that do not meet the )mount are allo$ed only bet$een the same parties ($hether the claims are related or not) ?rend to$ard the narro$ing of Pendant Party Jurisdiction Pendant Party5 3ed Claim against J Q and a >ransactionall'3related state claim a!ainst M ?. but there is no independent grounds of SMJ to support the claim agains J 7"
Jurisdictional Statute (*:* (**) (*:1 7b) Substantive Fa$ (88* State la$ (*:1 7b) Rule Presumption of PP Jurisdiction o 2urisdiction unless complete diversity Presumption PP Jurisdiction

claims if they are not joined together in federal court.

Aldin!er Nro!er Binle'

Aldin!er v. =o$ard 7SCO>/S (891) & I brings suit agains offericers under C! @SC E 1G>1 tries to sue the county" .id not succeed" SCO>/S said (88* did not allo$ t"e count' to be sued. (1) Court $ould not assume a Congressional grant of 2urisdiction in this case" Pendant party 2urisdiction denied under Civil Rights )ct4 C! @SC E1G>1 (i) ?he decision in )ldinger is very specific to the language of E 1G>1" ?he proposition unless congress e&cludes the e&ercise of pendant party 2usridition it $ill be allo$ed" egative affect but positive pronouncement" (ii) Court says this is not a constitutional problem" ?he claims do arise from the same case and controversy4 ho$ever4 E 1G>1 refers to 9officers and persons: an implied negative pregnant" 0hich bars suit against the county" (iii) Presumption in favor of pendent party 2urisdiction if claims related B unless Congress stated other$ise" -o jurisdiction is t"e result but jurisdiction resumed is t"e rule. .ivergent regimes for Pendent Party Jurisdiction involving federal question and PP 2urisdiction involving diversity o ;f it8s a question of $hether the Pendent party can attach the primary claim in a 3ederal Puestion4 the presumption is that the $hole case can go to 3ederal Court B )void Piecemeal 'itigation o ?here is the opposite presumption if the case rests in .iversity4 many cases are sent to state court becaue the Pendant Claims are not diverse" O$en ;6ui ment G ;rection v. Nro!er 7Scotus& (898) & 2oes a federal court retain jurisdiction over an action& based on diversit' of citi5ens"i & $"en t"e laintiff adds a endent art' M $"o destro's com lete diversit'O -O. A Bederal Court does not retain jurisdiction over an action& based on diversit' of citi5ens"i & $"en t"e A adds a endent art' M $"o destro's com lete diversit'. (1) Parallels (ibbs in pendent party conte&t (!) Court does not allo$ 2urisdiction over a pendent party that is impleaded later4 this $ould be a run around E 111!" I claim against 1rd party can8t be allo$ed to ride the coattails (1) ?$o corrallary Principles from this case (i) ?iming nor Sequence of $hen I brings claim does not matter (ii) Knly the Binal Sna s"ot matters $hen deciding SMJ" Binle' v. /nited States 7SCO>/S& (888)& Must Con!ress s ecificall' aut"ori5e PPJ $it"in t"e releveant statue conferrin! federal JurisdictionO Mrs" 3inley4 $hose 6usband and t$o Children $ere #illed $hen their airplane struc# electric po$er lines4 sued the @"S" for negligent airport maintenance under 3?C) and attempted to 2oin the city and the utility company" In order to obtain PPJ& t"e statue conferrin! federal jurisdiction must eL ressl' aut"ori5e endant art' jurisdiction. Pendent Party Claims not based on neither diversity nor4 3ederal Puestion" Scalia8s Court refuses to allo$ pendant party 2urisdiction in the absence of an e&press grant of authority by Congress (Reversal of Aldin!er v. =o$ard)

Piecemeal 'itigation $ill result from this (0orst Case Scenario) 3?C) forces the primary claim into federal court4 $hile the subsidiary4 related claims must be had in state court"

Su lemental Jurisdiction /nder )8 /.S.C. 0 (*19 ;n Response to 3inley4 Congress passes E 11=* to provide an e&press grant of authority to grant supplemental 2urisdiction" E 11=* $as meant to codify pre< Binle' case la$ and preserve ,roger (to preserve the complete diversity requirement 1 part structure 0 (*19 7a) 4road& ermissive !rant of aut"orit' for su lemental jurisdiction %ssentially allo$s 2urisdiction to the limits of )rticle ;;; %choes of (ibbs B ;n a case $ith original 2urisdiction over a primary claim4 federal courts $ill have supplemental 2urisdiction over all claims $that are part of the 9same case or controversy: (transaction or occurrence: ;nvolves claims bet$een t$o parties or additional parties (intervening or 2oined parties)" 11=* (b) ?a#es a bite out of a8s grant only over E 111! diversity claims" ;n suits under E 111!4 no supplemental 2urisdiction over Claims against J Rules (:& (8& )H& ):P claims by persons proposed to be 2oined as I under Rule 1G4 or intervene as I under Rule !CO E"en eLercisin! Jurisdiction $ould destro' diversit' 2oes not include claims b' *rd art' A and *rd art' M (*19 7c) @rants courts discretionar' o$er to sever su lemental claims# ;f novel question of state la$ ;f supp claim substantially predominates )ll claims $ith 2urisdiction have been dismissed %&ceptional circumstances $ith compelling reasons" Codifies discretionary factors from (ibbs" Knce courts decide that case could come<have the option to deny PPJ to state claimsA (*197d) >olls 7sto s t"e cloc+) on t"e statute od limitations $"ile su lemental cases endin! in t"e Bederal Court. o ;f ) F and if !nd claimPat has no independent basis ct" can send the $hole case bac#" Party could move for severance<#eep part $-independent 2urisdiction in ct" ;f $hole thing can come in Court can only send the part bac# $ithout SMJ" Problems $it" (*19. 2oes 0(*197c) onl' aut"ori5e dismissal over su lemental claims& or can courts dismiss t"e entire caseO Colorado River abstention doctrine 7cited in Abbott Fabs) 3 Court "ere sa's courts retain t"e discretion to dismiss entire case E"at affect does (*19 "ave on A!!re!ation RulesO Courts "ave "eld t"at 0 (*19 does not c"an!e a!!re!ation rules >"e su lemental case claims com rise Jone civil actionK of $"ic" t"e civil courts "ave ori!inal jurisdiction >"is is one eLce tion for "ultiple claims between same parties in amount in controversy cases Se arate state la$ claims bDt ne$ arties t"at don%t meet amount in controvers' can%t be brou!"t in& (*19 4 -? v. -J for 8. N and -? v. ON for ).N Qa"n ProblemDA44O> FA4S& 2oes t"e court "ave subject matter jurisdiction over members of a class in a suit $"en members of t"at class fail to meet t"e amount in controvers' re6uirementO Says the court in Rahn that the claim of each class member must meet the amount in controversy requirement must meet the amount in controversy requirement" 6ere Class action case filed in state court of ') 4 removed to federal court by J on diversity 2urisdiction" ?he plaintiffs then sought to remand for lac# of SMJ" ?he court applying 11=*5 o o o 11=*(a) gives class members coattail 2urisdiction on the claim of the class rep" E11=*(b) does not invalidate 2urisdiction< Rule !1 (class actions ) is omitted %rgo there is 2urisdiction over supplemental parties8 claims under E 11=* effectively overrule Rahn"

 Feon"ardt 7(888)3 >ent" Circuit did not a!ree $it" .t" Circuit# Same 6uestion did (*19 overrule Qa"nO >"e (Ht" court "eld t"at Con!ress did not intend to c"an!e t"e Qa"n rule $"en a A can brin! an initial suit under rule )*. o Rather4 reads 11=* as applying to parties added (later) to a case o 'iteral reading of E 11=* preserves Rahn" o Remains an open question" Patterson ;nter rises v. 4rid!estoneDBirestone 7Nansas& (88*)& E"en * arties brin! suit in diversit' and ) of t"e arties fail to meet t"e amount in controvers'& Can t"e' ride t"e coattails of t"e t"ird art' into federal CourtO ?hree I sue and K6 J (3irestone) and t$o of the J fail to meet the amount in controversy requirement" >"e court t"en reasons incorrectl'& t"at t"e suit could be brou!"t in federal court because (*19 onl' a lies to arties added later and not t"ose resent in t"e be!innin! of an action. Courts4 result if not reasoning is correct under 11=*" ;t8s reasoning presents a ,roger problem<;t doesent matter that the parties $ere present at the beginning of the action4 ,roger tells us that it is the 9final picture across the v: that matters for SMJ" o ) literal reading of 11=* $ould allo$ this claim to go for$ard because they are plaintiffs 2oined under rule !H" )nd 11=* F only applies to J brought in under !H"

Removal Jurisdiction %&ception to the idea that the I is the mater of the claim" Purpose is to protect J rights parallel to the I to be protected by federal courts )lso protects against bias o ?he vindication of these interest is only partial" @eneral# #ny case that could be brought in federal court originally, can be removed $ %&&%a unless, the suit rests in diversity and any ' that is a member of the same state. $ %&&%(b 0 %&&%( a) Cases are removed to the federal district court for the district and division embracing the place where the state cause of action is pending ?his rule is sub2ect to the $ell pleaded defense rule4 a federal defense to the claim $ill not allo$ removal ?his is motivated by a strategic desire for the I to get to federal court by restyling the case in his o$n image" S"amroc+ Oil G @as Cor v. S"eets 7SCO>/S& (8:()& Court held that I could not remove based on fedral counterclaim" ;n federal question cases4 action is removable $ithout regard to the residence or citi/enship of the parties 1CC1 (b) E 1CC= governs the Procedure for Removal and it is very strictly imposed"

?here are implicit $aiver rules4 the fact that one of the time deadlines has not been met can ma#e a basis for failure to remand" 3ailure of procedural requirement 'ac# of SMJ is never $aived" E 1CC1 (C) Removal of Multiple Claims .ead 'etter 11=* (c) does the $or# of supp J" 0hen removing a case4 must loo# to E 11=* (C) to determine if there is 2urisdiction over the entire case-all claims" E 1CC1 d 3oreign States as J may remove ( tried $ithout Jury) E 1CC1 (e)<)n action removed from state court that had no 2urisdiction to hear the case is not precluded from being heard in federal court" 2efeatin! Removal )dding a fuga/i-insubstantial-unnamed party

Real Party and ;nterest .octrine B Rose v" (iamatti (S"."Khio4 1G>G) < Citi/enship of nominal parties may be
disregarded for purposes of diversity of citi/enship" Claim amount in controversy less than *+ ," .istinction bet$een pre removal and post removal by amendment" Pre<removal I is master of his complaint Post removal is loo#ed at carefully by courts B not allo$ed to do this )dditional Parties5

@nder Primary 3ederal question claim4 E 11=* (a) gives 2urisdiction to pendant State la$ claims @nder diversity claim4 2oining a party $ho is a citi/en of the state in $hich the action is brought can defeat removal" E 1CC1b )dditional claims< )dding a claim that does not have supp J under E 11=* can defeat removal .ropping 3ederal Claim Carne!ie Mellon /niversit' v. Co"ill 7Scotus (888) Crossin! of (::( and (*19. 2oes court "ave t"e aut"orit' to remand for t"is reason 7$"ic" is not one of t"e t$o listed in t"e statue& but is art of t"e discretionar' factors of 0 (*19cO) Can t"e court onl' dismiss or does t"e jud!e "ave t"e o tion of remandin! t"e caseO I brought suit in state court4 J remvoved to federal court based on federal question 2urisdiction" I later dropped federal question claim and sough an order to remand" Remand allo$ed for reasons of efficienc'& fairness and comit' and t"at (*19 C& $"ic" !ives discretion to dismiss in endant art'Dclaim cases is resent in 0 (::(3(::1. )8 /.S.C. 0 (::1 Procedures for Removal J must file notice of removal in federal district court )ll J must agree on removal Must be filed $ithin 1H days of receipt of claim

)8 /.S.C. 0 (::9 Procedures after Removal @pon filing notice4 the case is deemed removed Motion for remand must be filed $ithin 1H days" )n improperly removed case must be remanded to state court ?$o (rounds for Remand .efect in Removal Procedures 'ac# of SMJ 0 (::9 7d)& orders to remand are not revie$able on a eal >"ermtron v. =ermansdorfer 7Scotus& (891)& .istrict Court remanded a properly removed case (diversity 2urisdiction) for a reason not authori/ed by removal statue ( 2udge said doc#et overcro$ede) Court noted that remand $as only authori/ed under the t$o circumstances mentioned in 1CC* Court =eld t"at under 0 (::9 7C) and 7d) must be read to!et"erO 0 (::9 7e) !ives t"e court aut"orit' to den' joinder of additional arties b' A if t"e' $ould destro' jurisdiction 7or allo$ joinder and remand)

Personal Jurisdiction G Motions Practice#

Introduction# >$o re6uirements for assertion of Personal Jurisdiction# Po$er over t"e erson Abstract o$er of t"e soverei!n to brin! arties it and bind t"em. Perfection of Po$er Court must ta+e ste s to effect t"e o$er over t"e arties Service of Process Procedures are !eared to rovide notice and o ortunit' to be "eard. >"ree Borms of Personal Jurisdiction# o In ersonam Kver the person B full e&tent of liability for the matter" o In rem Jurisdiction over a thing to determine the statuts of the proper B case actually involves something about that property (R/F; :-) o Cuasi in Rem# Jurisdiction over property B the cause of action is not related to the property and the damages are limited to usually $hen the court has $ith in it8s authority property o$ned by the person" Personal Jurisdiction is derives initially from a set of common la$ standards" Personal Jurisdiction is the !nd of three hoops that must be cleared by the poodle in order to bring a cause of action" ?here has been a gradual constitutionali/ation over the course of !HH years of Personal Jurisdictgion o Mobility and Mass transit lead >raditional 4asis for Personal Jurisdiction 3ormal4 geographical4 territorial4 physical presence4 authority of the sovereign o ;dea that the po$er of the courts e&tended to the boundaries of the State o Required .omicile $ithin the state Physical presence Kr the $aiver-consent of the out of state party"

>ic+le ,. 4arton 7Su reme Court of E,A& (8.1 Si+eR >"ere%s no ban6uet but "ere%s a summons) Is a service of rocess t"at is ac"ieved of t"at is ac"ieved t"rou!" tric+er'& deceit and subterfu!e null and voidO E"at is t"e a ro riate measure to ta+e u on discover' of a defective service of rocessO I $as in2ured in an accident in 0S)4 by a Sirginia resident" Court "olds t"at t"is fraud nullifies t"e PJ. >"e case is dismissed. o >raditionall'& o$er of t"e court eLtends to t"e border of t"at courts !eo!ra "ical area t"e court can%t reac" over and summon 'ou Penno'er v. -eff 7Scotus (899) Personal Jurisdiction is ac6uired b' ersonal service inside t"e territorial limits of t"e foum state or b' voluntar' a earcnace of t"e M t"ere to contest t"e suit on its merits. 7And not a s ecial a earance to contest PJ) o ;nitial movement int the Constitutionali/ation of due process of la$" 3irst case5 Mitchell sues eff in (C)) in Kregon o otice of suit is published in paper o Kregaon rule allo$s PJ based on sei/ure of property in the state together $ith notice published in paper" Mitchel $anted to commence Puasi in rem action4 o ?he problem is that the court did not sei/e the property prior to asserting 2urisdiction rather the property $as sei/ed after the court entered the 2udgment" Secondly5 eff sues Pennoyer in federal court to quiet title o eff collaterally attac#s first case on the basis that the court lac#ed PJ o Service defective B there $as no sei/ure of the property prior to the 2udgement o Court does not enter the 2udement on the first case o Court argued notice is given to by the sei/ure4 property o$ners are thought to become a$are of actions o Farring sei/ure4 eff $as deprived of notice and opportunity to be heard4 $hich Court says is a Constitutional due process right" Puasi in Rem and in rem 2urisdiction are acquired by the presence of nonresident J property in the forum state and the attachment of property at the start of the action .ue process must protect the rights of the individual $ho o$ns property" Courts retain 2urisdiction over persons domiciled in the state despite their physical absence from the state" 4lac+mer v. /nited States. Court did allo$ to serve process on an absent citi/en of the state" Mili+en v. Me'er the Court allo$ed 2urisdiction over a resident $ho has established another residence" Domicile was enough to bring to bring an absent within the reach of the states courts. ?his $as stretching to the brea#ing point Modern Personal Jurisdiction and lon!3arm statutes After Penno'er t"ere is a !radual movment to a more functional standard for t"e courts to eLercise o$er and erfection o Princi le of $"ere a erson $as !ave $a' to t"e rinci le of $"et"er t"ere $as a relations"i bet$een t"e erson and t"e jurisdiction o ;nnovations in ?ravel4 ?echnology o and the formation of corporation as an entity More focus shifted to J rights ?hese considerations $ere Constitutionali/ed under the 1Cth )mendment .ue Process Clause ;L andin! PJ o States resort to legal fictions to establish PJ over non<residents4 $hile maintaining the tradiational notions of 2urisdiction 7 resence and consent) Constructive Consent arties deemed to consent to J b' drivin! t"rou!" state Consent to a oint state re!istrar as 'our a!ent for receivin! rocess 7?our a!ent is t"us resent in state) =ess v. Pa$los+i 7Scotus (8)9 2rive 4' PJ) Court u "olds Constitutionalit' of MA statute t"at sa's PJ can be ac6uired b' im lied consent of art' drivin! t"rou!" t"e state. M,A re!istrar is a ointed as 'our a!ent for receivin! notice International S"oe v. Eas"in!ton 7Scotus (8:.) Int%l S"oe 7.% Corp) $ith 6P in St" 'ouis4 had a salesman operating in 0ashington State4 but no offices4 etc" State Sues to collect ta&es from Corporation" )pperas 9specially: to constest PJ4 argues its activities in the state do not amount to presence" Court "ere brea+s from =ess and decies standard for establis"in! PJ 7for cor orations) JMinimum ContactsK bet$een t"e cor orations and t"e forum state. Mini Cons must be ma#e sure that 9 traditional notions of fair play and substantial 2ustice 9 are met ?$o concepts to fulfill meaning of minimum contacts5 o J burden and e&pectation must be considered

Reciprocity (Purposful )vailment) < J too# advantage or invo#ed protection of the la$s of the state4 he must therefore submit to Jurisdiction Minimum Contacts ?a&onomy5 o Continuous and systematic contacts and cause of action arises from these contact (Specific Jurisdiction) o (eneral 2urisdiction if activities are sufficiently continuous4 and systematic and Cause unrelated o Sporadic4 casual single act and cause arises from the act B might give rise to PJ o Sporadic single act and cause arises not from contacts B not enough to establish PJ o

Post international S"oe. Fon! Arm Statutes eL anded t"e reac" of state courts to assert jurisdiction Sin!le Action Statutes# oint to sin!le act 7torts) and rovide a rule for service of rocess Activit' Statutes Jdoin! businessK in a !iven forum Faundr' list Statutes# oint to a sin!le act 7 committin! a tortuous act in t"e state) and rovide a rule for service of rocess Outer Fimit Statutes as in California t"e' allo$ jurisdiction to t"e limits of Constitutional PJ. >$o art anal'sis for assertin! PJ o 2oes t"e statutor' !rant or aut"orit' allo$ t"e eLercise of PJ o If ?es& t"en is t"at eLercise consistent $it" Constitutional PJ Ne' Minimum Contacts Conce ts# o Reci rocit' 7International S"oe) o /ndue 4urden on M 7International S"oe) o Pur oseful Availment 7@ra') o Borum S ecififc Bactors 7@ra' and Eorld Eide ,ol+s$a!on) )ppropriate place to litigateA %vidence-$itnesses available State interst in providing a forum for vindication of it8s citi/ens rights >rajector' of Minimum Contacts @ra' v. American Radiator 7SCt. IFF)& Sailin! alon! t"e stream of commerceR ;ntroduces the concept of purposeful availment into SKC case" Fecause J in2ected radiator valve into the stream of commerce" Minimum contacts eList $"ere t"e ma+er of a roduct injects t"at roduct into t"e stream of commerce for ultimate sale in anot"er stateP not unreasonable to "old manufacturer liable in forum state. Borseeabilit' of J products entering ;llinos forum $as central to the analysis" Minimum Contacts 2octrine is stretc"ed to t"e limit b' t"e stream of commerce cases. O%connor in Asa"i $ill later ste bac+ from suc" a lo$ bar "o$ever onl' artl'& "ers $as not a majorit' decision. M c"allen!es PJ on t$o !rounds# o Statute does not apply (?ort happened out of 3orum because the part $as negligently produced else$here) o %ven if the statute does apply4 it is unconstitutional because e&ertion of po$er ta#es minimum contacts too far (this is a single act) Mc!ee v. International Fife Insurance Co. 7Scotus& (8.9) S ecific Jurisdiction Sin!le or isolated contact (contract) personal 2urisdiction case (C) citi/en has an insurance policy $ith a ?Q corporation)" Court holds that the continuous activity on this one policy is sufficient contact to ground personal 2urisdiction" Pur osel' avail itself of forum t"ru deliberate maintenance of contract on a re!ular basis" o Systematic and continuous4 though narro$" o Solitional < ;nsurance company could have quit at any time" o Court also $eighs systemic factors5 C) has an interest in seeing rights of its citi/ens protected (C) la$)" 0itnesses most li#ely in C)" o Plaintiff $ould be at a considerable disadvantage if he $as forced to sue outside of forum" =anson v. 2ec+la 7Scotus& (8.8) 4e!innin! of Pur oseful AvailmentR @rann' leaves mone' to @randdau!"ters in 2ela$are and 2au!"ters in BloridaR o Simultaneous Fa$suits o Similar to Mc(%% B in that there is a single contract here B Fut it is not enough to establish PJ over .ela$are ?rustee by 3' Court" o M did no business& advertise& or "ave an office in 2ela$are o Contact is unilateral by one party moving to florida4 .% trustee did not purposely avail of 3l la$s"

 Collateral attac# B 3' 2udgment against ?rustee rendered void" 3ills in elements of substance of a J connection $ith a potential forum state" (6anson and Mcgee) Eorld Eide ,ol+s$aa!en v. Eoodson 7Scotus& (88H)& I purchase care in 74 drive it through K, $here they have an accident and car8s gas tan# blo$s up" Product 'iability Suit in K# naming 00S04 the distributor and an 7 corp $ith no business contacts to K, as J. J constest PJ on Minimum Contacts grounds<violation of .ue process under the 1Cth amendment" K, Supreme Court held that K, long arm reached J" Scotus reverses" 2;B;-2A->S 2I2 -O> P/RPOS;B/FF? 2IR;C> >=;MS;F,;S >O >=; BOR/M S>A>;. Borseeabilit' but not mere foreseeabilit'. o A sa' t"at I $as foreseeable for car to travel and end u in ON o )s in (ray4 this is an unilateral action but it is on the part of the IO there is no purposeful availment of K, la$ by the J o Stream of Commerce analysis in defective product cases" 'andmar# foreseeability of $here J can anticipate or forsee being brought into court" o >"e Court distin!uis"es @ra'. In EEE& t"e urc"ase in -? $as t"e last sto in t"e Stream of Commerce3A t"en moved t"e car unilaterall' to ON Borum Bactors Also ;volve from "ere o J Furden of defending o I interest and convenience o ;nterests of 3ourm State o ;nterest of the States together< most efficient administration of 2ustice in furthering fundamental social policies %ffect of 3orum 3actors o 9plus factor: B boost minimum contacts over threshold of fairness o Minus factor B there may be sufficient contacts but it $ould not be fair to e&ert PJ here"

Neeton v. =ustler Ma!a5ine& Inc" (SCK?@S4 1G>C)

()s lack of contracts $-the forum state $on8t defeat other$ise proper PJ" Plaintiff ( 7) sues defendant (K6 corporation) in 6 federal court" Plaintiff chose 6 because of long statute of limitations" SCK?@S reverses lo$er courts finding that personal 2urisdiction did not obtain because laintiff did not have sufficient contacts $ith forum" o Court says no requirement that laintiff has minimum contacts B test is volume of contract b-t J and forum (sold 1+4HHH maga/ines there substantial4 continuous4 and systematic) Nul+o v. Su erior Court 7Scotus& (898) o SCK?@S did not allo$ 2urisdiction over 7 J by Ca because he alloed his daughter to live in C) $ith her mother o J;ffects test did not a l' merely causing an effect in the forum state does not support PJ on its8 o$n (not li#e a tortuous action or commercial activity affecting state residents) ;nsurance Corp of ;reland v" Compagnie des Fau&ties (Scotus 1G>!) o 0hite Bdue process clause is e&clusively focused on the individual interests of the J not on the interests of the forum state" o Ma#es factoring of systemic factors difficult Furger ,ing v" Rud/e$ic/(Scotus 1G>+) F,C a o 'andmar# decision about PJ analysis in Contract cases decision ma+es forum selection clauses relevant to ersonal jurisdiction anal'sis. o A sin!le contract can be enou!" if it involves a sustained interaction over time. o /nli+e Mc!ee& $"ere t"e A $as an individual actor& t"e M "ere is a business man and t"e relations"i $as more balanced. o >a+e =ome Fesson# Consolidates the principles that have gone before4 the notion that a single contract that $ould is enough4 purposeful availment4 reciprocity does count" ?he burden on the party has to be assessed on the nature of the party and the burden that they have" ?here is also a concern in F, about sufficient number of contacts through a contract4 that $ould allo$ small consumers to be hauled into distand forums to defend" Constant Consumption through a forum is not necessarily al$ays going to be enough" (?here is also a possibility to loo# at the nature of the J) )sahi Metal ;ndustry Co" v" Superior Court5 Similar to @ra' < Stream of Commerce case $ith last stop sale in C)" %vidence of )sahi8s business activities in C) cuts both $ays5 activities in C) are a tiny percentage of )sahi8s total business4 but supply a large volume of parts for C) bi#es (1HHHs)" )sahi $as manufacture of valve assembly used in tire tubes made by defendant Cheng ShinO CS filed cross complaint against )sahiO this $as the only claim left $hen case reached Supreme Court" o o o o

 K8Connor Pluralit' O inion ($hich has become accepted)5 .evelops 9 ur oseful direction: test for stream of commerce cases < variation on purposeful availment (Part ;;<))"

;n this case4 the contacts lie to$ard the $ea#er foreseeability end of the minimum contacts spectrum < not enough to ground PJ $ithout some greater connection to forum state < foreseeabilit' not enough" 93lo$ Plus: $ould entail an effort to create a mar#et through deliberate action by defendant (advertise4 developing a product specifically for the state4 establish channels for regular communication4 mar#eting in the state through a distributor there)" )lso $eigh ot"er factors that cut against a finding of personal 2urisdiction (Part ;;<F ma2ority)5 forum state has little interest in the dispute4 as the plaintiff is not a C) residentO heavy burden on alien defendant (foreign citi/en)O offense to international comity" O osin! ,ie$# 4rennan ;t8s a relevant contact if . put the product in the stream of commerce and could reasonably anticipate that the product $ill get to C4 .4 %"

9Ot"er Bactors: first used as a separate test in EE, and here again" )ssertion of PJ even in the presence of minimum 9minimum contacts: $ould offend 9traditional notions of fair
la' and substantial justice": too much of a burden on J" S ecific Jurisdiction Specific Jurisdiction over the J < J has sufficient contacts $ith the forum to $arrant 2urisdiction over him for matters arising form her activities in the forum4 not necessarily enough to $arrant (eneral Jurisdiction %&ists $hen J has sufficient minimum contacts $ith the forum5 o ?raditional notions of 3air Play and Substantive Justice (;nternational Shoe) Reciprocity< J has vailed himself of the protection of the 3orum8s la$s and is rightfully sub2ected to defend in it8s courts @ndue Furden B $hether forcing the J to enter the forum is too much of a burden Solition< Purposeful )vailment of the 'a$s ((ray) or Purposeful .irection in Stream of Commerce ()S)6;)"" Systemic 3orum Specific 3actors ;nterest of 3orum in providing avenues for its citi/ens to sue Convenience to I as the master of his claim Kther states interests in the effective resolution of disputes and promotion of social agenda8s" AAAA @eneral Jurisdiction Continuous and S'stematic 7Per+ins) and substantial activities in t"e Borum& suc" t"at assertion of Jurisdiction is $arranted even if t"e cause of action is unrelated or does not arise out of t"e M activities. Is a ro riate $"en t"ere are sufficient minimum contacts so as not to offend t"e traditional notions of fair la' and Substantial Justice o =i!"er standard t"an s ecific jurisdiction o ,a!ue& non mec"anical Standard Per#ins v" Fenguet Consolidating Mining Co" (SCK?@S 1G+!) o During the war the entire company moved to Ohio! Whether Perkins the non Ohio resident could sue in Ohio for something that did not happen in Ohio. o Supreme Court says that this is the best case for systematic and continuous activity.

Helicopteros Nacionales de olumbia v. !ay " #How much do you need to ground a general jurisdiction ase " !$R%&' Plaintiff survivors of victims of a helicopter crash in Peru sue defendant Colombian corporation4 o$ner of helicopter4 in ?Q state court" Cause of action (crash) did not arise in-unrelated to ?Q" Court "olds t"at defendants contacts $it" t"e forum state are not sufficient to !round assertion of ersonal 7!eneral) jurisdiction" o Plaintiff would have benefited if it argued this was a specific !urisdiction case. o Holds continuous flow of purchases are not enough. o Relies on Rosenvberg v. urtis (rown #)cotus *+,-' o ourt there rules such purchases. even if occurring on a regular basis. are not sufficient to ground jurisdiction o Holding limited "this case decided at a time when jurisdiction was based on constructive consent (rennan/s Dissent0 1his is possibly a specific J case

Cause does not arise from activities in the forum buth they are related to the forum" #here is also a $u%&or argument" o We should look for a sliding scale test not strict line between Specific%'eneral (urisdiction. o Pro ) or Pro *" o $rennan is the Champion of Pro ) stance. +n e,pansive approach. -indicates the ) interest in fora but the states interests in protecting those rights. Since the Doctrine is the same in federal state courts. .t gives emphasis to convenience of the ) rather then burden on the * && get more play here o Oconor/ more formalistic in approach cogni0ant for state boundaries. 1espects the value of Commity. +nd is interested in protecting state boundaries and is somewhat pro business it tends to invoke on the margins sov. +nd federalism concerns. #raditional 2otions of (ustice and &airness. &actors to consider when choosing where to sue 3what state45 Substantive law 3statute of limitations4 1each of the long arm statute .s the &orum Pro ) or Pro * Convenience to the ) 3Pro,imity to home forum"4 Where are the witnesses and the evidence" 1emoval Concerns. o Ot"er 4ases Po$er Since Pennoyer ne$ forms of property put in<rem and quasi in rem under scrutiny" Mobility is a trademar# of ne$ property it becomes difficult to say $here the property is" ?he e&tension of Po$er over property over ne$ property created to deal $ith modern e&igencies of life" Stoc#s4 ;P4 Fan# )ccounts no$ become open to po$er over property Jurisdiction Harris v. (al2 #)cotus *+34' represents a good e5ample of this moderni6ation and the problems that arise0 7resence of 7roperty Rule of 7ennoyer applies to an intangible the Situs of a debt isnt placed where the creditor is located but wherever the debtor may travel. Facts0 o ollateral 8ttac2 ase0 #his is the case of 6pstein v. $alk for the 789 dollars debt that $alk owes him. 6pstein takes advantage of the fact that :arris goes to ;D and attaches the debt to :arris and 6pstein also posts notice on the courthouse door. .t<s =uasi/1em it deals with property but not the property that is the sub!ect of the dispute. #he property that is sei0ed is a different property than that which is in debt. $alk then sues :arris in 2C court $alk brought a collateral attack asserting !udgment not valid because of personal !urisdiction 2C court refuses to honor the !udgement of the ;D court on the ground that ;D had no !urisdiction to attach the debt as the situs was in 2C Supreme Court disagrees and hold that the debt travels with the debtor 1ights of the creditor 3$alk4 to his property 3debt owed by harris4 are affected by the movements of debtor/by being in ;D court could ad!udicate =uasi in rem over $alks interests/ does this comport with ;ini/contacts" Probably not #he whole =uestion of this case is >Where is the debt?.@ +ccording to Scotus when :arris walked into ;D he took creditor with him. )haffer v. Heitner #)couts *+99' Rule0 !inimum contact analysis of 7J applicable to in Rem and :uasi in Rem jurisdiction. Holding0 ;<R and <R jurisdiction can/t be e5ercised over unless the = had such minimum contacts with the forum state that in personam jurisdiction could be e5ercised over her. <f a direct assertion of 7J is invalid then so will ;<R <R. +pplies the .nternational Shoe due process standard to the assertion of A.1 (urisdiction. Court also confirms that real prop in a state will satisfy minicontacts for (urisdictional pursposes most of the time. Facts0 ) 3D64 files a shareholders derivative suit in D6 court against * D6 corp with principle place of business in +B for cause arising from O1.

 D6 statue provided that the situs of the stock was D6 Court sei0ed the stock to assert A.1 Auestion was/ do the * have to defend this suit in D6 or default up the value of the stock" ourt says no0 1e=uires the same standard for .n personam (urisdiction as for A.1 and .1 $verrules (al2> )ufficient !inimum ontacts must be Had. Limited Apperances and Collateral Attack0 Rules for hallenging <n 7ersonam Jurisdiction0 - 1hings you can do if you are sued in 7ersonam0 !a2e General 8pperance #waiver of objections' Default )pecial?@imited 8ppearance Aou win> ase dismissed Aou lose )ubmit to Jurisdiction @eave and suffer default .f you default in the first instance you have various options to Collaterally Attack the default judgment. But if you lose, you are foreclosed from attacking the merits #o force you to specifically appear would be contradictory to the doctrine of P( &orcing a special appearance would be as burdensome as making a general appearance Presence -otion of >a! Jurisdiction serve someone $"ile t"e' are in t"e Borum 4urna"m v. Su erior Court 7Scouts (88H) Jurisdiction based on physical presence" Rule# Jursidiction ma' be asserted over an individual $"o is resent in t"e Bourm& even if "e "as no minimum contacts $it" t"e Borum. Scalia relies on Pedigree of presence in the Common 'a$5 o J agrues all PJ decisions based on Shoe test of minimum contracts" o Presence satisfied test of 9traditional notions of fair play and substantial 2ustice" Fecause it is the traditional $ay 4 there is a traditional e&pectation" o Shoe should only apply to absent J o Plurality decision5 Frennan Concurring5 Presence should be s$allo$ed up by Shaffer4 $here the traditional rules for Pir 2urisdiction $ere changed to conform $ith ;nt8l Shoe requirements" Consent Parties can consent to PJ through their actions by $aiver or contract" Consent by 'a$ B 3iat o Constructive Consent B 6ess v" Pulos#i o Constructive Presence5 Fusiness Registration 'a$s< to do business in the state you must register and appoint an agent to receive process Still controversial Courts have struc# may of these do$n but not facially" ?he are not presumed invalid Consent by appearance and 0aiver of Kb2ection5 o 3ailure to file a 1!(b) motion rasing a lac# of PJ defense $aives it" o (eneral and Special )pperances Some states allo$ special appearances for all 1 types of 2urisdiction (Personal4 P;R4 ;R) Consent b' Contract or A!reement# o Borum Selection Clauses set t"e forum for an' dis utes over a contract. 0aive ob2ections to PJ and venue" Freman and Carnival Cruise (Scotus 1G*! L 1GG1) o Admiralt' cases allo$s t"e fed courts to fas"ion substance and rocedure3eerie just does not a l'. Bed courts !et to decide $"at t"e effects it !ives to Borum Selection Clauses in Admiralt'. o Scouts li+es t"e Clauses in bot" 4remen an dCarnival. >"ere is a Fa$ and econ Ar!ument Com an' !ets somet"in! valuable in certaint' of t"e la$s t"at $ill be a lied Also saves resources on liti!ation ;L enses of li!ation means c"ea er tic+ets. o 0henever you have a contracted for override of default procedural rules4 you have to thin# in terms of bargained for benefits" 4reman Bactors# =onor forum caluse unless enforcement $ould be unreasonable or unjust& or t"e clause $as invalid for suc" reasons as fraud or t"at it is overreac"in! o Cases are limited because t"e' are in admiralt'.

C"oice of la$ clauses arallel but not t"e same treatment. States "ave rules !overnin! c"oice of la$ 7;rie 6uestions)

J@R;S.;C?;K )' R%)C6 K3 3%.%R)' CK@R?S B S%RS;C% M%C6) ;CS Cuasi In Rem Jurisdiction in 3ederal Courts a" )fter S"affer4 P;R4 2urisdiction requires the same minimum contacts for in personam 2urisdiction"
b" )fter S"affer4 P;R 2urisdiction still serves t$o purposes5 i" Service of rocess is easier in P;R Rather than chasing someone to serve them personally (e&pensive and you may not #no$ $here they are) you can sei/e prop" and post" ii" ;n states $ith s"ort lon!3arm statutes4 P;R may be only option (statute may not allo$ in personam 2urisdiction in a case)" ;f a long<arm statute allo$s PJ over persons $ho do business in the state4 but a defendant only has + houses in the state and no business ties4 you can sei/e the houses to establish 2urisdiction" Rule :7n) governs P;R 2urisdiction in federal courts" i" Rule :7+) deals only $ith persons4 not prop"" ii" Rule :7n)7() < )llo$s P;R 2urisdiction if a federal statute so provides" iii" Rule :7n)7)) < )llo$s state la$ ($here court sits) to be used to assert P;R 2urisdiction in federal court" Can only be used if you cannot obtain in personam 2urisdiction Can8t argue it8s too e&pensive4 must be impossible-not feasible (i"e" you can8t find a defendant)" ;f you can get in personam 2urisdiction4 you must" Prop" sei/ed must be in the judicial district $here court sits"

c"

;f state long<arm statute is short4 Rule :7n)7)) allo$s P;R 2urisdiction to the limits of S"affer (must have minimum contacts)"

Rule :7+) ado ts state lon!3arm statute into la$ of federal court a" Rule :7+)7()7A) < 9Pi!!'bac+ Provision: i" ) federal district court has po$er of PJ if a state court of general 2urisdiction $ould have PJ (use state8s long<arm
statute)" ()pplies to all actions in federal court)"

b" Rule :7+)7()74) < 94ul!e Provision: i" 3ederal district court can go over the state border4 up to 1HH miles from the court4 to establish PJ over parties 2oined
under Rules (: or (8 3 regardless of any other basis for PJ"

ii" Kpen question on $hether minimum contacts are needed5

7es5 Common sense @"S" has 2urisdiction over anyone $ithin its borders as the sovereign creating the courts4 only using 1HH miles of this" o5 Restrictive May not comport $ith fairness under Intl S"oe (OLford case)"

Rule :7+)7)) < Omni Provision i" %nacted by Congress in reaction to the SCK?@S decision in Omni Ca ital International v. Rudolf Eolff G Co.
(1G>*)"

ii" @nless J is amenable to service of process there is no PJ B implies that4 even if a federal statute e&pressly grants service
of process authority4 the +th )mendment .ue Process Clause could still apply to prevent an unreasonable e&cuse of PJ over nonresident J" ;nvestors in 'ouisiana sued Fritish corporation in ') federal court" ') long<arm statute did not reach Fritish defendants" Court refused to create a rule authori/ing service of process in this situation4 leaving it for Congress" ?his meant some foreign defendants doing business in the @"S" might not be amenable to service of process in any one state" Congress enacts Rule :7+)7)) B Omni Provision" )llo$s a federal district court to assert PJ over a foreign defendant $ho has minimum contacts $ith the @"S" as a $hole4 but not any one state" Onl' applies in federal 6uestion cases"

iii"

Onl' applies $hen PJ cannot be asserted in an' ot"er lace < in no state could PJ be asserted" )ggregates contacts $ith @"S" as a $hole to ground 2urisdiction" )malgam of traditional vie$ (sovereign has po$er to call anyone $ithin its borders) $ith modern minimum contacts vie$ (add up contacts $ithin the borders of the sovereign)" 0here there are sufficient minimum contacts $ith one state $ith a short long arm statute KR 0here there is no state $ith sufficient contacts4 but the /.S. as a $"ole "as sufficient minimum contacts" 0hen $ould you useA 3oreign partiesO corporations (unusual for @S corp")O off<shore companyO one state does have minimum contracts4 but that state has a short long<arm statute (state 2urisdiction fails)" iv" ?$o cases impacting this rule5 Stafford v. 4ri!!s (SCK?@S4 1G>H) < Justice Ste$art8s dissent endorses the traditional vie$ that if you are 9present: in the @"S"4 you can be haled into court any$here $ithin the borders" 3ifth )mendment applies here4 not 3ourteenth (states)"

Puestion of $hether 9reasonableness side: of test applies (Justice Ste$art says it does not)" OLford case (%"." Pa"4 1G*C) < Says assertion of PJ is constrained by the notions of 9fairness: derived from the 3ifth )mendment" 3airness inquiry should be part of this analysis"

OLford argues no distinction bet$een standards under +th or 1Cth"

Kther provisions of Rule : i" Rule :7a) < 3orm of Summons ii" Rule :7c) < 0ho can serve summons iii"
Plaintiff must arrange for service )nyone over 1> years not a party to the suit" Rule :7d) < 0aiver of Service Plaintiff can mail service to defendant requesting $aiver"

iv"

v"

Re$ard for defendant for $aiving < =H days to file ans$er (!H days)" Penalty for failing to $aive < pay costs of personal service" Rule :7e) < Rules for Service of Process Piggybac#s on rules of the state $here the district court is located KR $here the service is actually effected" Can personally deliver it4 leave a .8s home $ith someone responsible4 or by delivering a copy to an authori/ed agent" Rule :7") < Service on Corporations Serve an agent authori/ed to receive summons"

=ellenic C"allen!er case5 ;nterprets Rule :7") as allo$ing service to an agent $ho stands in a position to render it 9fair4 reasonable and 2ust to imply the authority on his part to receive services": Must reasonably e&pect that deliver to that person $ould come to the attention of individuals $ho handle litigation fle&ible standard" vi" Rule :7m) < ?ime 'imit < 0ithin 1!H days of filing complaint" -oticeG O ortunit' to 4e =eard

-otice#
Sufficient otice is required to meet due process requirements Parts of .ue Process5 i) Po$er over the person ii) Perfection through correct service of process iii) )dequate notice of the la$suit iv) Kpportunity to be heard" 3aults in any of the above and there is a failure in due process" otice governed by Rule C" Ade6uac'DSufficienc' of -otice# J4est -otice Practicable StandardK ;n Person Service is al$ays enough other standards are measured against this Sei/ure and otice-Posting relates to real property for ;R and P;R

Mullane v. Central =anover 4an+ G >rust Co. 7SCO>/S (8.H) 2C S#+#6 S#+#D#6 #:+# allowed banks to set up common trusts that pooled smaller trusts. Pooled EE7 trusts. 2C S#+#6 conducted +udits. $eneficiaries had an interest and notice of the proceeding was publication in the public newspaper. ) was guardian of those with an interest in the trust. +nd the ) did not like the way in which notice happens. :e makes a special appearance taking strength in Shoe says this is really about personal right to the money so your rights ought to be guarded by due process standard. #he court doesen<t care how the case was categori0ed in rem =uasi in personam. .n the end the =uestion was whether or not this notice comports with the traditional notions of notice. >notice must be reasonably calculated . . .@ >#he best notice practicable. . .@ is the standard that satisfies the due process of the EFth amendment. $alance of interests5 o .nterest of .ndividuals to know of lawsuit and present their defense o .nterest to of society to have !udicial matters settled G finality 2otice need not reach all partiesH !ust re=uires the best efforts to reach as many parties as possible 3best efforts practicable4 ;ust answer the =uestion of what would be the most effective and efficient way to inform the parties of the situation given who the parties are and the means of service that are available. 2ot everyone will be reached is an assumption that the courts made.

7 'roups E4 * where addresses known G notice re=uired via mail 84 * whereabouts unknown G notice not re=uired 74 * interests not all the way known not re=uired .n rem and =uasi in 1em G Does traditional notice re=uirement survive the most reasonably practicable standard" !ennonite0 Court says traditional notice re=uirement for .2 16; actions no longer suffice. $ecause there is knowledge of address it is re=uired that something sent in the mail Publication and posting of notice of sale of real property for nonpayment of ta,es is constitutionally insufficient to mortagees easily identifiable. Pennoyer method of notice is used here5 Publication and sei0ure. o #raditionally this is effective to produce notice o People were assumed to have constructive notice of when property was sei0ed. Court hold that this is not the best notice practicable5 o &irst more effective service is available at a reasonable cost. o Second ;ortagee is available through public records5 personal or mailed notice should be re=uired Dnless mortgagee is not reasonably identifiable constructive notice alone is not sufficient $est notice practicable undercuts #raditional notions of 2otice. 3a la Pennoyer4 '16626 -. I.2DS6C 3EJK84 G O<connors opinion makes it so that there is no formal way to serve process. #his turns ;ullane concern with e,pediency and streamlining on its process on its head. o Posting notice in a condemnation proceeding against a landowner is known is inade=uate as a matter of Constitutional Due Process o 6viction notice posted on tenants door not sufficient notice must be mailed to tenants. o .n the pro!ects risk of knocking down the notice too great and is thus not a reliable means of showing the parties that they are going to be called to defend in front of the courts 3;ullane4 o Court indicates that there is a ranking of notice 3personal service posting mail publication4 cannot be relied upon in all cases4 o 1his 8nalysis is too fact specific case by case 8nalysis

Opportunity to $e :eard
Parties must have an opportunity to be heard on their side of the case. Due process0 re=uires parties to have a chance in the resolution of a dispute and present their side of the issue. 1he adversarial process is said to insure the most accurate outcome. @aw develops through deprivations of property interest cases Private Iaw5 disputes between individuals who commandeer the state to assert power over property o (urisdiction o Secure (udgment o Secure Partial .nterest in property

o 6,ecute a (udgment Public Iaw5 o Public benefits disputes o &orfeiture/ criminal %civil actions

Rule BC )ei6ure of 7erson or 7roperty0 o >provisional remedies@ temporary restraining orders preliminary in!uctions pre/actions attachments or sei0ures. o %5ceptions to the constitutionally re:uired opportunity to be heard. $pportunity to be Heard Doctrine0 re=uires some form of hearing prior to deprivationH =uestion of what kind of hearing is sufficient. %volution0 Fuentes v. )hevin0 #)cotus *+9,' #C>- Holding' .nvolves a 1eplevin statute. Doesen<t matter that the interests are divided 2or does it matter that the deprivation is temporary what matters is that it is a deprivation. #he Court makes a very strong statement for the need absent e,traordinary circumstances for the party being deprived of action be heard #iming G Proceedings necessary must be pre deprivation Substance/ the Proceeding must be $i/Iateral. .n this kind of case the safe guards are in place are inade=uate the nature of in=uiry and the standard simply too fact specific and too open ended that with this conclusory affidavit directed to a clerk is 2O# +D6AD+#6 62OD': +n almost categorical embrace that we need bi lateral process. )niadach v. Family Finance orp. #) $1D). *+B+' Pre/!udgment garnishment of wages violated due process.

+bsent notice and opportunity to be heard cannot take a person<s wages so important to sustaining life. !itchell v. E.1. Grant o. #)cotus. *+9C' Prop sei0ure w%o notice or opportunity to be heard upheld b%c !udge 3as opposed to clerk4 permitted sei0ure only after presented w%verified petition that person whose property sei0ed could reclaim prop. .mmediately Court up hold pre/hearing sei0ure of property in I+ 1esolution of the due process =uestion must take into account not only the interests of the buyer of the property but those of the seller as well. Court distinguishes &uentes5 o Creditor makes re=uired showing before a !udge not a clerk o Doc. Proof is needed to satisfy a more narrow standard o Creditor had a prior interest in the property 3debtor violated installment agreement as opposed to Sniadach in which the creditor had no prior interest in the wages being garnished4 Court draws back from &uentes unilateral pre/sei0ure hearings in certain situations are appropriate.4 Ieaves a little chaos :ow do you reconcile &uentes and ;itchell" 1he bottom line is that !itchell v. Grant ta2es away from Fuentes and leaves confusion in the Ea2e. ;athews v. 6lldridge3 Scotus EJLM4 ) 6ldridge commenced this suit after being deined continued Disability payments argued that he was deprived due process. 'ovt. $enefits are a form of property. o 1ights v. Privilege o +rgument that the government is not re=uired to provide these benefits so it is entitled to withdraw them at any time o Court held in 3'oldberg v. Nelly4 once the benefits are passed into law they become a kind of property interest entitled to protection. 8re the procedures for termination of disability benefits ade:uate for due process right.F +fter 2otice there is a bilateral hearing. $ut like in &uentes we are talking about at best a temporary deprivation. 3not e, parte but bilateral4 7 Part #est5 o *'7rivate interest involved is it a property interestF <s it temporary or permanentF o ,'Ris2 of erroneious deprivation vs. the value of more procedures and safeguards o -' ost?(urden of additional procedure 8pplication of the Factors to this case0

*.' 1he private interests are not substantial enough. @nli#e $elfare benefits in @oldber!4 disability benefits do not go to the heart of supporting oneself" ?his $as 2ust a temporary deprivationO post<deprivation revie$ of the decision is available to " ).) Fo$ ris+ of error in t"is rocedure. 3acts are easily documentO channeled through the doctor"

.istinguish @oldber!4 in $hich factors to consider for $elfare payments are more elusive"

Similar distinction bet$een Buentes and Mitc"ell" ature of the legal standard is considered" ?ypes of facts involved in determination are considered" *.) Cost involved in additional rocedures is "i!". Many more hearings at much more cost" Court finds t"e rocedures "ere are sufficient to com ort $it" due rocess. Connecticut v. 2oe"r 7=ouses Just don%t !et u and $al+ a$a'R SCO>/S (88*)

asserts a pre<2udgment attachment against the house of as security for a possible 2udgment for an unrelated dis ute for assault and battery" Connecticut statute allo$ed such attachment through eL arte roceedin!" Court e&tends the Mathe$s ?est to private la$ setting" Court considers statute in light of the 1 considerations of Mat"e$s test5 Private interest involved5 Si!nificant in this case" ) person8s home is important to him" ) lien on the house can be disruptive Ris+ of ;rror-Salue of more procedure to reduce error5 Significant" Procedure is eL arte (one<sided inquiries are not good)" .oes not matter that 2udge issues the attachment $rit (a retreat from the Mitc"ell caseA)" Com are interests of $ith (instead of government8s interest)5 ;nterests of the are too minimal to 2ustify" Real prop" (home) is not in danger of being moved" Knly concerned about movable prop" disappearing" )lso4 in every case there $ill be a full post<deprivation hearing4 so there is really no additional cost to moving it to pre<deprivation" Court stri+es do$n t"e attac"ment statute& as t"e rivate interest involved is si!nificant& and t"e ris+ of error is to "i!".
/S v. 2aniel @ood Real Pro . 7Scotus (88*) o Bederal statute rovides for forfeiture of ro ert' relatin! to dru! crimes. o @ood $as involved in dru! crime& and t"e !ovt. initated an in rem roceedin! a!aint ro ert'. o Sei5ure served dual ur ose& sei5e tainted ro ert'& establis" jurisdiction %& parte Proceeding in $hich Magistrate rules for government and property $assei/ed $ithout prior notice or an adversarial hearing" Court finds due process consideration apply to this forfeiture5 )pplies Mat"e$s v. ;lldrid!e * Part >est. o @ood%s interest in "is boat are si!nificant o ?he e&parte8s sei/ure contains an unacceptable ris# of error" o o compelling need for govt for prompt action5 .istinct form Calero<?oledo in $hich the action $as necessary to prevent destruction or getting rid of boat (;n this case the house can not run a$ay) ?his ris# created an e&ception to the pre deprivation notice and opportunity to be heard" (ovt" had other means4 via lein on the property to protect its interests o ?he property in question is not e&traordinary to 2ustify postponement of notice and hearing" <n effect you have to give people notice before you give them notice. 1he implications are that you can/t use sei6ure as the implications of giving notice. 1he @ower ourts have really ignored what Gennedy has said in Daniel Good. otherwise they would be unable to maintain <n Rem and ;uasi in Rem.

Henue
<ntroduction 1efers to a place where (udicial Power can be e,ercised consistent with Personal (urisdiction +nd given that additional choices will be made given the choice of the original parties and the suitability of the venue itself. #wo &actors in Choosing -enue o E4 Party5 #he trend has been to favor the * in recent times o 84 Systemic -enue is sub state in=uiry. 2orthern District of Cali Southern District of C+ etc. States have Procedural Iaw &eds have O E7JE #o 'overn -enue Henue is a )ubconstitutional Right. only a set of pragmatic concerns. ourts have considerable discretion. )tatutes ,I D) J *-+*> Federal Henue )tatue0 o J *-+* #8' Diversity ases may be brought in0 #*' (udicial districtrict where any * resides if all * reside in the same state or 1esides plays out in mini Contacts for corporations. &or individual persons it can be one of three ways o State law of residence o E778 citi0enship o ;inimum Contacts" +pproaching an e,am =uestion you would argue in the alternative. #,' (udicial district in which a substantial part of the events or omissions giving rise to the claim occurred or in which a substantial part of prop. #hat is the sub!ect of the action is situated or #-' district in which any * is sub!ect to P( at the time the action is commenced if there is no district in which the action otherwise be brough. K1his is 2nown as the Fall Back provision o J *-+* #(' Non>Diversity ases !ay be brought in 3E4 (ud. District where andy * resdies in same state or 384 (udicial district in which a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of property that is the sub!ect of the action is located. 374 (udicial district in which any = !ay (% F$DND. if there is no distrinct in which the action may otherwise be brought. o O *-+* # '> orporate = Defines where corporations reside for the purposes of *-+* 8#*' and (#*' Deemed to reside in any !udicial district in which it is sub!ect to personal !urisdiction at the time the action is commenced. .n a state 3where * sub!ect to P(4 with more than one !udicial district deemed to reside in any district in that state within which its contacts would be sufficient to sub!ect it to P( if that district were a separate state. .f there is no such district deemed to reside where it has the most significant contacts. o J *-+* #d'> 8liens +leins sub!ect to suit in any district #he idea is that * will be e=ually inconvenienced no matter where he is domiciled. .mportant 2ote5 :ow do you apply the &allback provision of E7JE a7 and b7" When there is no other place where there is venue in the state. under E7JE a E and a 8. Where the main action happens out of the country. o (reach of contract $r there is no other place where you can e5ercise personal jurisdiction. Glannon and Ea5 disagree. Ea5 says that there may be no place where there is both personal jurisdiction and venue. <n this case. you simply split up the case. %5ample0 )uppose that 8 L sues olorado resident and $hio Resident for an accident that ta2es place in <llinois. *-+* 8 " Diversity0 a*0 None of the residents of the same state a,0 Aes this place is <llinois. (ut if the long arm statute fails to reach and there are no minimum contacts then according to Glannon you are done. (ut 8ccording to Ea5 if you can/t bring because of 7J in <llnios then move to the fallbac2 provision if you can/t bring everyone together you simply piecemeal the action.

8K DSC EF9F/ Change of -enue5 o #e,t5 #a' &or the convenience of parties and witnesses in the interest of !ustice a district court may transfer any civil action to any other district or division where it might have been brought. o Partial codification of forum non conveniens doctrine 3only allows transfer between 8 federal courts not federal and state court4. o Ney aspects of J *C3C hange of Henue5 #ransfer not dismissal. ;ade upon motion by or .

+lternative forum5 federal. Iaw of transferor forum applies for diversity cases 3including choice of law rules and statutes of limitation4. Han Dusen Rule5 $%c of 6rie doctrine applicable to diversity cases an action transferred under J *C3C#a' is governed by the law of the state where the transferor ct sits.

#his prevents /s from forum>shopping5 searching for a forum with more favorable law is mootH law follows transfer. :owever allows /s to forum shop5 <s can file suit in an inconvenient but favorable forum and then seek transfer.

Ferens v. John Deere o. 3SCO#DS EJJ94 missed statute of limitations in P+. &iled suit in ;S with a longer
statute of limitation then moved for a transfer to P+ court under J *C3C#a'. ourt held that 78 court #transferee forum' was re:uired to apply the !) law #transferor forum' under the Han Dusen rule. #he Han Dusen rule is still good law despite forum/shopping.

3Dnder common law &2C law did not transfer4 #ransferor and transferee forums must have proper venue P( and S;( 3i.e. this is a court where action could have been brought but there is a better place for this action45 Hoffman v. (las2i 3SCO#DS EJM94 ) brings a federal patent infringement against * on * home turf of #e,as. + J
*C3C#a' transfer is permitted only if the transferee ct would have venue P( and S;( on the date the complaint was filed in the transferor ct. moves to transfer case to .I under J *C3C#a'. .llinois ) brought a Patent .nfringement against #e,as * in #e,as * wants to transfer to .llinois Court Pth circuit upholds the transfer DC refuses in .llinois and the L th circuit removes it back )ays the supreme court0 #1here has to be jurisdiction and venue in the forum ant the beginning of the law suit' &rankfuter worries about the oppression5 o :ow does this differ from &2C" if the * chooses an alternative venue he waives the right to ob!ect to lack of P( or Statute of limitations o #ransfer statute is the codification of &orum 2on Conveniens which is something the courts always had. Cou don<t have to worry about * abusing because the !udge in the interest of !ustice and for the conv. Of the parties the !udge is the gate keeper Han Dusen Rule5 When you transfer of EF9F in diversity you take the law of the transferor forum. + move to transfer should be a change of court rooms and not a change of law. Doesen<t apply in a &ederal law cases you don<t take another circuits precedent ,I D ) J *C3B > ure or Eaiver of Defects #a' #he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss or if it be in the interest of !ustice transfer such case to any district or division in which it could have been brought. o +pplies only when venue in the transferor court is improper. o Court has power to dismiss or transfer to court with proper venue. o 6ither or may move for transfer. #b' 2othing in this chapter shall impair the !urisdiction of a district court of any matter involving a party who does not interpose timely and sufficient ob!ection to the venue.

-enue can be waived.

o -enue is waived if not timely ob!ected to 3Rule *,#b'#-'4. Ney aspects of J *C3B5
o o #ransfer or dismissal. or may make motion +lternative forum5 federal Iaw of transferee forum applies. Potential for <s to continue to pursue the claim without risking the e,piration of statute of limitations 3may run during case4.

o o

o
o

;a!ority rule5 statute of limitations of the transferee forum applies 3prevents gaming of the system4. -enue must be improper in the transferor forum for J *C3B to apply. P( can be lacking in transferor forum 3as long as venue is also45

Goldlawr v. Heiman 3SCO#DS EJM84

SCO#DS says that a J *C3B#a' transfer is permitted even if the transferor ct doesn<t have P( over the *. P+ court lacked both P( and venue but transferred case to 2C federal court. 2C court dismissed claiming lacked the power to transfer the case because it lacked P(. Court held that such a case is e,actly what J *C3B is meant to addressH even if a court lacks P( 3as long as it also lacks venue so that J *C3B applies4 it can transfer to proper court. #ransferee forum must have venue P( 3and S;(4 / Hoffman v. (las2i rule applies.

&orum 2on Conveniens

'enerally5 + court may resist imposition of its !urisdiction even when !urisdiction is authori0ed by the letter of a general venue statute #oo inconvenient for the * to litigate the case .f successful FN leads to dismissal or stay but not transfer. Only works on * motion +lternative &orum5 &oreign or State Court .n &ederal System &2C only applies where this is more convenient non/federal court O EF9Fa covers the rest. Substantive law of the alternative &orum +pplies5 $ut statute of limitations may be waived as a defense by the * as a condition of the dismissal 3let you move to more convenient forum if you allow this. + trade off!4 Substantive Iaw taken into account in dismissal decision 3will the different law significantly impact the outcome of the case4 Dismissing forum must have venue P( and S;( .& waived 2on venue and P( necessary in the alternative forum. #hree part test for &2C5 ) specific factors connection to the transferor forum there is substantial weight given to his choice of forum #he presence of witnesses and evidence for the ) case :ow substantial is the substantive law of the alternate forum does it provide for relief" * specific &actors5 Presence of witnesses and evidence for * case 3can you find witnesses in alternate forum4 #hird party practice 3does * need to implead"4 Public or &orum related interests $urden on (ury%court 3confusion familiarity4 6vent of local concern or interest G center of gravity" Connection of events %persons to the alternate forum. 7iper 8ircraft v. Reyno 3SCO#DS EJKE4

Scottish <s sued <s for damages from a plane crash in Scotland. +fter removing and transferring to P+ <s moved for dismissal on the ground of forum non conveniens.

+lternative forum is availableH s agree to be sued in Scotland. )upreme ourt upholds dismissal. applying a three part test of considerations. and finds weight of
factors points to )cotland as the appropriate forum. Possibility of change in the substantive law may be given substantial weight only if the remedy in the alternative forum is so clearly inade=uate or unsatisfactory as to be no remedy at all. Ordinarily strong presumption in favor of Q<s choice of forum which may be overcome only when the convenience factors clearly point to trial in the alternative forum. $D# the presumption applies w%less force when the Q is from a foreign country.

Ascertainin! t"e @overnin! Fa$ >"e ;rie 2octrine#

Choice of 'a$ Problems ?he Puestion is 0hich Soverign8s 'a$ should apply to the disputeA @ntil no$4 question $as $hich of the Sov8s Courts SMJ $as a question of 3ed or State Court PJ and Senue B 0here do you ta#e the caseA ?$o Choice of 'a$ Problems 6ori/ontal5 'a$ of 0hich state (Conflict of 'a$s) Sertical5 Choosing bet$een or State or 3ed Courts (%rie) Statutor' /nder innin!s Rules of 2ecisions Act 7)8 /.S 0 (1.)) 'a$s of the several states shall be the rules of decision in civil actions in the Courts of the @"S $here thy apply4 unless Constitution or 3ederal 'a$ Provides other$ise Judiciary )ct of 1*>G Puestions that arose .oes this apply to statutory or common la$A Kr bothA .oes this cover substantive or procedural or bothA Rules ;nablin! Act 7)8 /SC 0 )H9)) (a)Congressional grant of authority to the Scotus to rescribe t"e rules of ractice and rocedure for cases in t"e federal courts Prohibits such rules from abridging4 enlarging or modifying andy substantive federal rights" .ifference bet$een substance and procedure is unclear4 the result is a tension bet$een E 1=+! (la$s of the several states shall apply) and E !H*! (fed po$er to provide for procedural rules) ;n general4 courts allo$ed fedral rules of procedure to trump state la$ (even $hen the distinctinon is mur#y) (b) limits the po$er of E !H*! by stipulating taht rules shall not abridge4 enlarge or modify any substantive right": S$ift v. >'son 7Scotus (8:)) >"e Court >ells a -atural Fa$ Stor'# Story Ma2ority holds that in a diversity case $ith a claim based upon the state la$4 a federal court should apply federal substantive la$ to the state claim unless that claim involved state legislative la$ or matter of custom of usage This was the interpretation of the *ules +ecision #ct for #lmost %,, -ears. Conflict bet$een 7 state la$ and developing common la$ else$here (%ngland) 7 common la$ required I could not collect

 Common la$ outside of 7 allo$ed collection Misterpretation of 9la$s of several states from the R.): resulted in the outcome5 R.) applies only to statutory la$ B the federal courts are only required to defer to the state la$ $hen the la$ in conflict is a statute" Stor' in a unanimous decision decided R2A a lies onl' to statutor' la$ of t"e states atural 'a$ )genda Sa$ the la$ as a body of #no$ledge out there to be discovered ;dea that there $ould be convergence of decisionsO same conclusion Practical )genda5 Sa$ the la$ as a body #no$ledge ot there to be discovered" .eveloping common la$ $as more progressive modem" Problems5 Created the opportunity for forum shopping (Flac# and 0hite ?a&i) .eprived states of authority to effect policy through the common la$ ?reated in state I differently from out of state I because in state I are bound by states decisional la$ $hile out state I in diversity action can choose different la$ in that states 3ederal Court" Se aration of Po$ers problem5 allo$ing federal courts to ma#e la$ violates the Constitutions delegation of legislative authority to Congress" Bederalism roblem# )llo$ing federal courts 9ma#e la$: in areas reserved to the states violated federalism principle" 4lac+ G E"ite >aLicab v. 4ro$n G ?ello$ 7SCO>/S& (8)8) ;llustrative problems $ith S$iftO classic case of forum shopping" ,7 I reincorporated in ? in order to gain diversity 2urisdictionO federal court $as then able to apply its 9o$n: common la$ instead ,7 la$ to grant favorable 2udgment to I in monopoly issue" =olmes in dissent -atural Fa$# $as not realistic4 in the $a#e of S$ift4 there $as not a convergence of opinion as courts discovered the 9august corpus: or transcendental body of la$: B such does not e&ist" Such la$ does not e&ist $ith some authority behind itO la$ is al$ays the product of soverign po$er" 3ederal Common la$ is /nconstitutional ,ertricall'# Congress has no authority to legislate in areas that are generally reserved to the states so the courts shouldn8t either =ori5ontall'# Courts have no authority to legislateO this is a separation of Po$ers Problem" ;rie R. Co. v. >om +ins 7Scotus& (8*8) R2A case =oldin!# t"at state substantive la$ a lies in a diversit' case 3S substantive la$ of a state includes its decisional la$. ;rie doctrine3S constitutionall' la$ mandate t"at a lies to diversit' cases A "it b' M railroad sued for injuries suffered PA common la$ $ould "ave denied A recover' as tres asser& $"ile !eneral la$ a lied b' fed courts under s$ift $ould "ave allo$ed A recover'& so A sued in federal court Court overrules S$ift v. >'son& "oldin! t"e Rules of 2ecisions Act a lies to bot" state statute and decisional la$ for diversit' cases Rationale5 ?$o ob2ectives %lminates 3orum Shopping and disparity bet$een federal and state rulings %lminiates discrimination against in state I through the inequitable administration of the la$"

Restores balance of po$er bet$een federal and state courts recogni/ing and preserving autonomy and independence" )c#no$ledges no convergence of opinion after s$ift" In Aftermat" of ;rie# * Cuestions#
&ederal courts re=uired to follow state substantive law but follow federal procedureal law in diversity cases. Courts have always had inherent power to create their own rules and provide 3see $ivens4 Auestion5 in the absence of federal law 3prior to the 1ules 6nabling +ct4 should the federal court apply state procedural rules Depends on the >interpretations of rules of decisions@ and >where they apply@ Courts have interpreted that Congress intended to preserve the courts inherent 3+rticle ...4 powers to create their own procedural rules. Certification5 Some states allow federal courts to certify =uestions of state law to the state supreme court to clarify state law position on an issue. Dnguided 6rie Choices5 When there is no precedent from the state supreme court federal courts interpret lower court rulings or try to guess what the state supreme court would have &orum shopping has not been totally eliminated but this may be simply unavoidable.

8N %R<% %H$@D1<$N
@uarnt' >rust v. ?or+ 7SCO>/S (8:.) R2A CAS; 7 ORI@I-AF O/>COM; 2;>;RMI-A>I,; >;S>) @nder %rie4 state la$ is substantive if applying it $ould lead to a different outcome in 3ederal vs" State Court" Cuestion# E"ic" statute of limitations $ill a l'O 3eds4 decided that they $anted to apply a different statute of limitations4 $hich rises from the courts po$er in %quity to give an appropriate remedy4 traditionally courts in %quity had broader po$ers to shape a remedy" =oldin!# o A state statute of limitations is substantive and t"erefore controls in a diversit' case in federal court. S>A>; R/F;S ,S. J/2@; MA2; R/F;S o I 5 the statute of limitations is procedural and not affected by erie o J5 State 'a$ Controls4 ?rumps 2udge made Rule Out Come 2eterminative >est# o If a l'in! t"e Bederal rule over t"e state rule si!nificantl' c"an!es t"e liti!ation $e loo+ at t$o factors# Eill "avin! t$o rules result in forum s"o in! If 'es 'ou !ive u t"e Bederal Rule Eill it result in t"e ine6uitable administration of justice. 2ifferent rules a l'in! $"en arties are from t"e Borum States o If 'ou flun+ t"ese tests and t"e' "ave a ra!matic effect on art'%s be"aviour& t"en t"ere can be no se arate federal rule. ;ncoura!es /niformit' in decisions bet$een state courts and t"eir federal counter arts O osite rule $ould lead to Borum S"o in! a la 4E >A<I 4'rd v. 4lue Rid!e Rural ;lectric Coo erative 7SCO>/S& (8.8 R2A Case) E"et"er t"e individual suin! under B;FA "as a ri!"t to "ave "is cases decided b' t"e Jud!e or a Jur'. Court modifies 7or#5 o ?here are some cases in $hich federal policy is strong enough to ma#e the federal rule control for e&ample4 ?rial by 2ury4 $hile not from the *th )mendment gathers strength from it o Kutcome .etermination should be applied not to the particular case4 but by the broad implications of all $ho are going to come under the conflict of the rules5 )lso4 it is uncertain $hether this is an Kutcome .etermination ;ssue" ?he case may not be decided differently simply because there is a 2ury deciding the case instead of the 2udge" ?his doesent really lead to 3orum Shopping Court here modifies t"e outcome determinative test to allo$ for consideration of le!itimate federal olic' interests" o 3irst question5 9;s the rule difference outcome determinativeA: ;f yes4 presumption in favor of state rule unless federal interest" ;f not4 then apply the federal 2udge<made rule" o Second question5 9;f the rule difference is outcome determinative4 is there a strong federal interest in follo$ing the federal ruleA: ;f yes4 then the federal rule is follo$ed" ;f no4 then follo$ the state rule"

 =anna v. Plummer 7SCO>/S& (81.) R;A Modified Outcome 2eterminative >;S> ;nvolves a conflict of 3ederal rule Cd14 allo$ing leaving copies at the door as acceptable Service4 $ith the state rule $hich requires service to be hand delivered" o Salidity of State Satute means that the case $ill be dismissed and the statute of limitations $ill have e&pired leaving the I $ithout the opportunity to re file o I argues that by allo$ing the case to continue it is outcome determinative" ! Part )nalysis5 o 2oes it ass t"e outcome determinative testO Court determines that noT (?emporal Santage ) ?he difference in the rules $ould not encourage forum shopping 4 or lead to an inequitable distribution of 2ustice ?he minor difference really doesn8t change the behavior of the plaintiff" =anna Part 7II) If a BRCP is arguably procedural then $e are going to assume validity5 Salidity comes from the Po$er of the R%) %ven if the use of the BRCP $ould affect the outcome of the case4 ?he (Supremacy Clause) ma#es it trump the state rule Rules %nabling )ct B the rules are a constitutionally valid grant of )rticle ;;; Po$er to the courts to ma#e rules (broad reading) Modified Outcome 2eterminative >est# o Cannot be applied $ithout reference to the t$in )ims of %rie decision5 0ill the promote )void 3orum ShoppingA 9 9 'ead to unequal administration of the la$s o ) federal rule is valid even if it affects the outcome of the case4 as long as it does not lead to forum shopping or outcome determination )nalysis of Rules @nder Rules %nabling )ct o .oes the rule regulate something that is 9arguably procedural: o ;f it is arguably procedureal4 does the rule abridge or modify substantive rights provided under state la$A Ste$art Or!ani5ation& Inc. v. Rico" Coro . 7SCO>/S (888) R;A CAS;# E"at do $e do $it" Borum Selection Clause in Bederal CourtO Conflict of State 'a$ on 3orum Selection $ith (E 1CHC ?ransfer) o ?here is not necessarily a conflict here the 3ederal Rules are Silent on 3orum Selection Clauses o Selection Clauses $ill not have dispositive $eight but you consider it as one of the factors" ;t is a case by case factor" Puestion 1) is the 3ederal Statute Sufficiently Froad to control the issue before the court o Congress directed multiple considerations govern transfer $ithin the fed system under E 1CHC o State policy focuses on 2ust one factor (disfavoring the clause) $ould defeat the purpose of considering many factors o 3ederal statute is therefore broad enough to cover the issue Puestion !) ;s this a valid e&ercise of Congressional Po$erA o ?his rule is arguably procedural o Po$er of Congress to enact this statute trhogh R%) is found under the ecessary and Proper Clause5 ?he soft$are to ma#e the system run =eld# )8 /SC (:H: A a lies des ite a state la$ t"at loo+s unfavorabl' u on contractual forum selection clauses. 1CHC) S$allo$s the 3orum Selection Clause as one of the factors the courts $ill consider Eal+er v. Armco Steel Cor . 7Scouts (88H) R2A Case Conflict Fet$een state la$ and 3RCP 1 for determining $hen an action begins for tolling the statute of limitations" o State la$ did not deem the action commenced until the service of process o 3ed Rule provides filing of the action commences the action Court finds t"at t"e test is $"et"er t"e Rule $as $it"in t"e sco re of t"e R;A 7ar!uabl' rocedural)& and if so $it"in t"e !rant of Constitutional Po$er under t"e -;C;SSAR? A-2 PROP;R CFA/S; of AR>ICF; I7BRCP 2O-K> BAIF >=IS) Court avoids the problem by saying that thre is no conflict" Fet$een State Rule and 3RCP 1" )pplication of 6anna is premised on a 9direct collision: bet$een the federal rule and the state la$" ?he federal rule does not apply for determining $hen the statute of limitations applies" ;t does not the rule for the purpose of tolling the statute of limitations" o ;nstead the federal procedural rule is for timing purposes internal to the 3RCP o

o ?here is a happy co<e&istence o conflict and )s a Result -o ;RI; A-AF?SIS. NlaLon Co. v. Stentor ;lectric 7SCO>/S& (8:() R2A CAS; Choice of la$ question" Court holds that to promote uniform application of substantive la$ $ithin a state4 federal courts must a l' t"e conflict3of3 la$s rules of t"e states in $"ic" t"e' sit" Sto s t"e Bederal common la$ ractice of ma+in! c"oice of la$ rules in t"e federal court. ?his prohibits hori/ontal forum<shopping (as opposed to vertical)"

Anal'5in! ;erie# >"e . Point EaL Pro!ram to -ot @ettin! a CR

Ste (# Is it an ;rie CuestionO 3)re there t$o rules 3ederal and State Ste )# E"at is t"e Bederal RuleO E"at is t"e State RuleO Ste *# E"at +ind of Rule is t"e Bederal RuleO o Bederal Common Fa$ o BRCP o Statutor' Procedural RuleO o Somet"in! >"at Comes out of t"e Bederal ConstitutionO Ste :# 2o t"e' ConflictO >urns on inter retin! rules on bot" sides Sometimes conflict de ends on one of man' inter retations. Ste .) E"ic" Rule A liesO Bederal Constitution vs. State Rule o )l$ays trumps state rule o See .yrd Bederal Statute v State Rule o 3ederal Staute trumps if (Supremacy Clause) Statute Covers the Point in dispute4 and Statute is Salid e&ercise of Congressional )uthority )rguably Procedural ecessary and Proper Clause See Ste$art v. Rico" BRCP v. State Rule o Bederal Rule $ins if 7Su remac' Clause) o Rule covers t"e case in dis ute o Rules are considered a valid eLerciLe of Con!ressional Aut"orit' from t"e Rules ;nablin! Act 7broad readin!) o See Eal+er v. Armco 7Rule not in direct conflict) Jud!e Made v State Rule o @se the refined outcome test in 6anna" o .oes the use of different rules of affect the outcome ;f it does4 does this change implicate %rie 3orum Shopping Providing equal admin of la$s" ?or+ and 4'rd

>"e -e$ Bederal Common Fa$

@enerall' t"ere is no Bederal Common Fa$ Separation of Po$ers Concern5 po$er to ma#e la$ lies $ith congress 3ederalism 5 )reas assigned to states for regulation and legislation5 Bederal Courts are im licitl' aurt"ori5ed to ma+e some Common Fa$ 0hen Congress and the Constitution have spo#en to the substantive rights4 and the states have not addressed the issue .eals primarily $ith 3ederal Puestion ;nterpret-fill gaps in federal statutes (;mplied Remedy .octrine of Cort v" )sh) >"ree areas of substantive Bederal Common Fa$#

Preservative# Courts ma+e rules to allo$ certain o$ers to run or be eLecuted ) Cate!ories# E"ere t"e Beds "ave eLclusive Aut"orit' over an Area# Admiralt' International Relations 2is utes bet$een States Militar' and -ational Securit' Immi!ration E"ere t"e Bederal @overnment is an Actor 7Commercial) Pre3em tive# E"ere t"ere is a com re"ensive federal sc"eme and fails to address eac" and ever' 6uestion t"at mi!"t come u . >"e 6uestion is in order to ma+e t"e sc"eme $or+& Interstitial# E"ere t"ere are !a s 7 as o osed to re em tive common la$ ma+in!& $"ere state rules ma' eList but are not a ro riate) Common in 4road Bedera Statutes S"erman Anti3>rust Act ;@# Ma+in! u a statute of limitations for a federal cause of action Clearfield >rust v. /nited States# 7SCO>/S& (8:*) )rises out of Preservative 'a$ Ma#ing4 (overnment (treasury serves as an actor)" ?reasury Chec# stolen4 forged and offered to JC penny4 $ho collects on chec# from clear<field trust" Clearfiled garuntee8s chec#4 and tries to collect from 3eds" @S $as going to be lose on the money t$ice (the stolen chec# and the re<issue) Clearfield defended by saying @S did not give timely notice4 and this damaged their ability to stop payment to JC penny or the opportunity to investigate $ho chased the stolen chec#" J tries to ta#e advantage of State 'aches Rule ! Rival Rules Penn 'a$ 'aces vs" 3ederal Common 'a$ Rule 1rd Circuit .ecides5 )uthority to $rite Chec# is Constitutional Rights duties and obligations should be governed by the Constitution as 0ell )lso4 3ederal Common 'a$ leads to @niformity" Problematic to have +H different state standards governing the 3ederal ?ransactions 3irst Presumption in this Case is to adopt the state la$ %rie seems to prmote such a vie$5 promotes as little disparity 6o$ever4 federal interest in @niformity trumps %rie Presumption5

Pleadin!
I. >"e Modern Com laint# 2ismissal on t"e Pleadin!s# BRCP A. Rule ( Rules construed and administered to secure 2ust4 speedy and ine&pensive determination of ever action 4. Rule *# Civil action commenced $ith filing of the complaintO mar#s the beginning of the time requirements under the rules"

C. Rule 9# Pleadin!s Allo$edP Borms of Motions i) (a) complaint and ans$er4 reply to a conutnerclaim4 ans$er to a cross claim4 no other pleadings than the ones allo$ed e&cept that the court may order a reply to an ans$er or a third party" ii) (b) )pplication to the court for an order shall be made by motion4 unless made at hearing or trial4 shall be made in $riting" a State the (rounds therefore b Set forth relief or order sought c Requirement of $riting is fulfilled if the motion is tated in a $ritten notice of the hearing of the motion" 2. Rule 8 Mec"anics of Pleadin!# i) 7a) Claims for Relief# >"e claim s"all contain a short plain statement of the grounds for 2urisdiction b short and plain statement of claim sho$ing entitlement to relief c demand for 2udgment for the relief the pleader see#s" (1) )lternarive4 or several different types may be demanded" ii) >(e)! Claims made in the alternative are allo$ed (?hey can contradict original claim") ;. Rule 8# S ecial Matters B. Rule (H Borm of Pleadin!s II. -otice Pleadin!# Rule 8 creates notice leadin! re!ime A. Rule 8 only requires 9a short and plain statement of the claim sho$ing the pleader is entitled to relief: 4. ,ariations on on t"e t"eme#

i) -otice to t"e M # prep time B party oriented ii) -otice to t"e Court3 (ive the system notice to be able to analy/e the elements of a cause" C. Pur ose of leadin! i) Provides notice to the J and enough info to formulate a response B otice Pleading" a )llo$s J to frame a response b ;nstructs ho$ to conduct discovery c 0hat do ; present at trialA ii) )llo$s Court to define the issues in the case5 ;lement leadin! "as a si!nalin! function. a Jettison irrelevant issues (court B specific function) <1!b=4 1!C (2udgement on the pleadings) b 'imits the role of the 2udge (Summary Judgement) iii) Signals ability of the parties to prove the elements of their case" 2. 3i&ing defective pleadings i) .ismissal $ithout pre2udice and leave to amend ii) Rule () 7e) Motion for a more definite Statement. CAS;S# ;. 2io!uardi v. 2urnin! 7>"in+ About Pa i and J2o2o Co$K) 7)nd Cir) i) I immigrant files complaint for disappearing bottles at customs" ii) (overnment files a motion to dismiss on the ground that the complaint 9fails to state facts sufficient to state a cause of action: 1!b= iii) Court dismisses complaint $ith leave to amendO I tires again but court dismisses $ith pre2udice iv) Court of )ppeals finds I has under Rule 8a included a Js"ort and lain statement of t"e factsK demonstrating entitlement to relief" a 9facts sufficient: are not necessary (some facts must be pleaded) b Source of la$-legal theory also missing from this complaint c Court says all you need is a possibility that these fact cousl amount to a claim for legal relief under any legal theory" d ;lements Pleadin!# otice to the court" v) .etail required is varied from court to court depending on the cause of action" vi) Rule (. a )llo$s the pleading to be amended" B. Fod!e 9:* v. /nited Aircraft Cor . 72.Conn (81)) i) Rule 8a& Rule () 7e) ii) M moved for () 7e ) motion for a more definite statement4 and I responded that this $ould be equal to a dismissal a ;nformaion required $as in J possession b eeded to move for$ard to allo$ discovery" iii) Court grants motion for a more definite statement4 but only after I have the opp for discovery" iv) Rule 1! e motions are disfavord because of liberal notice pleading standard of Rule >(a) and because of liberal discovery rules" @. 2ismissal on t"e Pleadin!s# i) Rule ()7b)7b) 3ailure to state a claim on $hich relief can be granted a Matters outside the pleading are presented to the court4 triggers motion for summary 2udgment under Rule .1. b .ismissal on the pleadings is rare< usually the courts $ill try to allo$ the complaint to move for$ard (()RC;) and .ioguardi) c Courts $ill also allo$ leave to amend the complaint" d Most often granted for legal insufficiency not factual deficiency" (Fecause 7ou can add facts but can8t change your legal theory)" ii) Rule () c Jud!ment on t"e Pleadin!s a )fter the pleadings are closed" b ;f outside material is considered by the court4 the motion is treated as one for Summary Judgement" iii) Rule Out Rule# @nless the complaint rules out any chance of I $inning4 the court $ill usually allo$ a I to go for$ard" I left spaces that could later be filled $ith facts" a ;Lam le >itle ,II of t"e Civil Ri!"ts Act# complaint may be dismissed if the J only employes 1H people andd the statute applies to businesses $ith 1+ people or more b Inconsistenc' ruleO iv) ;lements Rule# A must sa' somet"in! about eac" element of claim. a )pplies particularly to highly styli/ed and established common la$ cases (tort of negligence) b Fu//$ords must be included (see (arcia) =. @arcia v. =ilton =otels Int%l Inc. 7PR (8.() i) Pl" files a complaint for slander against the J ii) J moves for dismissal because complaint failed ot allege publication4 one of the necessary elements of such a claim iii) Court allo$s complaint to go for$ard4 element is implied in the complaint (publication) iv) J ma#es another motion to dismiss part of the complaint because of absolute privilege for statements made in labor board hearing v) Court allo$s this dismissal

a J did not have to plead this defense in ans$er b o need to plead $hen it $as obvious vi) J is also entitled to rule 1! e (motion for a more definite statement) as to the $ords uttered and the publication of the $ords that $ere allegedly damaging" )ns$er4 Reply4 )mendments I. Ans$er A. >$o o tions i) Bile a motion under ()7b)3 subject to consolidation G $aiver re6uirement of rules () 7!) and () 7") ii) Bile an ans$er 7 7ou can al$ays tac# motions $ith your ans$er) 4. Rule 8 i) 8 7b) 2efenses and Borms of 2enials ii) Must address Fe!al >"eor' of the complaint5 a ) party shall all defenses to each claim asserted b Rule of $aiver for legal theories is lenient B difficult to conceive of an adverse party being surprised by a legal theory" iii) Must address factual allegations of the complaint5 a 7ou must admit or deny averments b Sepcificity is favored in the federal courts (not allo$ed to say ; deny everything) c ;f a party has not enough to admit or dney 4 you have to say so and this counts as a denial" d (otta meet the substance of the averments e )gain4 (eneral .enials of the entire complaint fare disfavored" iv) 8 T affirmative defenses# a (8 )ffirmative .efenses that must be pleaded or $aived b .efenses are legal issues5 J must affirmatively reaise defenses that do not flo$ logically from the complaint or they are $aivedO this is notice of the J strategy to the I c Rules for pleading for I are open4 J has very specific constraints< J must behave specifically or else he $aives certain defenses" d ot a negative pregnant B 9)n other matter constituting an avoidance or affirmative defense is a catch all" v) 8 7d) effect of failure to den' a )verments are admitted if not denied b ;f there is no responsive pleading required they are considered denited c Rule (. allo$s amendments is a safety valve to rule > (Courts have discretion of allo$ing full airing of issues for a fair trial) vi) Rule > (e) ! permission to ma#e arguments and state facts in the alternative even if you contradict yourself . 7Ar!uin! in t"e alternative) C. Motions# i) J may file a motion rather than ans$er ii) )dvantages of no need to admit or deny facts in the ans$er4 save you the e&pense of preparing an ans$er4 save the court8s resources" iii) 9Spea#ing Motions: motions to dismiss arising from issues outside the pleadings (pre<trial hearing to determine factual -legal issues in dispute) Affirmative 2efenses# I-@RA=AM& >A?FOR& G @OM;Q 2. In!ra"am v. /nited States 7.t" Circuit& (889) i) Medical Malpractice 2udgment in favor of the I the J @"S" after mudgment moves for reduction in damages based on state la$ capping damage a$ards" ii) I contends this is an affirmative defense that is $aived by the J $hen they did not fo$arard them in a timely fashon eeither in the pleading or $hile at trial" iii) J contends this cap is part of the cause of action4 not necessary to be pleaded" iv) Court develops C part test to determine if an issue is an affirmative defense $hich must be pleaded or $aived5 a 0as the defense part of the cause of action as defined by la$A (1) @nclear in this case b 0hich party has better access to the informationA (1) @nclear c ;s the defense disfavored or favoredA (1) .isfavored defenses presumption that they need to be pleaed" d @nfair surprise to the I (1) 7es I argue that they could have fashioned the case around other theories that $ere not dominated by the cap (!) I pre2udiced by not being a$are of the defense e Court finds t"at based on t"is test t"e statutor' ca on dama!e a$ards is an avoidance under Rule 8c and $as $aived $"en not leaded. v) >a'lor v. /nited States# 78t" Circuit& (889) a Similar facts to ;ngraham" J failed to plead statutory cap"

Court holds differently B cap $as a part of the cause of action (1) Rule >d e&cepts amount of damages averments from admitted if not denied ruleO J is presumed to $ant to contest the damage claim (!) @nder this rule4 the limitation on damages is not an affirmative defense" c C) la$ had defined this statutory cap as an affirmative defense (see factor 1 in the four part test above) but court finds that rule >d trumps this d Symmetrical argument5 I is not required to plead the amount of damages $ith specifics so J should not have to be so specific" ( ot a great )rgument) ?he $hole point of the pleading system is asymmetry" I is the master of his claim" vi) @ome5. v. >oledo (SCK?@S4 1G>H) a ?rial court dismissed 8s claim for $rongful discharge on the ground that $as entitled to qualified immunity for acts done in good faith $ithin the scope of his official duties4 and 8s complaint failed to allege bad faith" b Court notes nothing in the statutory te&t requires the to plead bad faith in order to state a claim for relief" c Since qualified immunity is a defense4 burden of leadin! rests $it" P he must sho$ he acted in good faith" d Puestion of access to information5 can8t #no$ $hat $as in 8s mind (pragmatic In!ra"am factor)" e should not have to anticipate of qualified immunity in good faith" f 0hen deciding allocation of pleading responsibility for causes of action defined by statute4 loo+ to t"e teLt of t"e statute first4 before embar#ing on the four<part In!ra"am test" g 1a2e home @esson0 <f you are confronted with an I action that is statutory then you loo2 at the statue. #1his should have been the rule in <ngraham and 1aylor' II. Rule (.# Amended and Su lemental Pleadin!s# A. Intro i) >"ree Part Structure a Safet' ,alve for 9& 8 () b =ands Jud!e 2iscretion c Jud!es "ave limited t"eir o$n discretion 7() Attm t to balance t"e strictness on t"e M and t"e lenienc' on t"e A 4. Rule (. 7a) Amendments Courts must justif' denial i) )pplies to )mendment of pleading even after trial ii) Knce as a matter of course before response or after $ith permission of the other parties or leave of the court" a )lso covers sorts of )mendment $hen you8ve omitted a claim4 cross claim4 counter claim4 or affirmative defense5 b Kmission in ;ngraham and ?aylor is really one of the above and not an attempt to conform the pleadings to the evidence C. Rule (. 7b) Amendments to Conform to t"e ;vidence 7Moore) i) )mendment of the pleadings to conform to evidence presented at trial ii) .uring the course of trial or after the verdict iii) Mutual consent to the amendment5 a %&press Bopen permission to try the matter b ;mplied-constructive consent5 party does not ob2ect to the introduction of evidence at trial iv) ;f a party ob2ects4 court has discretion to allo$ amendment5 Court $ill allo$ amendment in most cases because they $ant to put the best case for$ard" a ;f the amendment aids the case on the merits b ;f the amendment $ill not pre2udice the opposing side (1) 0ith pre2udice problem4 court could possibly e&tend time to ans$er the amendment" (!) Sery forgiving standardO 2udge can $aive the $aiver for failure to plead" (function over form) 2. Rule (. 7c) Relation 4ac+ of Amendments i) )n amendment of the pleading relates bac# to the date of the original pleading $hen5 a Relation Fac# is permitted by the la$ that provides the statute of limitagions applicable to the action b Claim or defense asserted in he amended pleading arouse out of the same conduct4 transaction or occurrence set forth in the original" c ?he amendment changes the name of the party against $hom the claim is asserted if (!) is satisfied and the amendment occurs $ithin the period provided for service of summons (C(m)) (1) Party brough in by amendment must have received such notice of the institution of the action that the party $ill not be pre2udiced in maintaing a defense on the merits (!) Party #ne$ or should have #no$n that4 but for a mista#e governing the identity of the proper party4 the action $ould have been brought against him" (1) ?his is to address statute of limitations problems" Cases5 ;. Moore v. Moore 72C (898)

Plea for Custody4 $ife forgot to ma#e any affirmative claims herself4 from range of claims4 from child support to custody4 to maintenance" ii) Proceeding had gone for$ard as if the mother had as#ed for custody herself4 the more ambiguous claims $ere for child support and maintenance and fees" iii) I ob2ects to the amendments under Rule 1+b a claims he did not have notice these issues $ere in dispute b 0as not given opportunity to be heard on these issues iv) Court finds implied consent to amend under 1+ b a I had timely notice that these issues $ere being litigated b I offred unique evidence to the counterclaim c o implied consent for maintenance" v) Fecause I could reasonably e&pect to have noticed these issues $ere in dispute and offer evidence to contest them4 there is constructive consent" vi) J amendment to conform to the evidence is granted" B. 4eec+ v. A6uaslide n 2ive Cor . 78t" Cir& (899) i) A sued M for injuries sustained in usin! slide alle!edl' manufactured b' M ii) J first admitted in its ans$er that it had manufactured the slide4 but then moved to amend its pleading to deny after ne$ evidence that the slide $asn8t theirs iii) Court granted separate trial to resolve manufacture of the slide iv) Court granted motion to )mend" a Rule 1+a provides leave to amend should be 93reely given $hen 2ustice so requires b @nless evidence of 9bad faith4 pre2udice or undue delay is presented by the party opposing )mendment should pass c Court finds no bad faith or undue delay d Kn the issue of pre2udice (1) Court holds I not really pre2udice (!) %ven if the amendment is allo$ed4 the I still has an opportunity to contest the fact as to $ho made the slide at the side trial (1) Pre2udice must be an 9unfair: setbac# to a party8s case not 2ust a setbac#" ;t is not unfair to allo$ J to prove that he might not have actually manufactured the slide in the first place" e Statute of 'imitations Problem (1) Statute had run4 I unable to claim against the real mnfr" (!) Rule 1+ U relation bac#A amed $rong partyA Possibility if the time for service of process had not yet run" )ny change made in pleadings that is allo$ed by amendment relates bac# to time $hen case started $hich $as before the statute of limitations ran out (presumably) @. Eort"in!ton v. Eilson 7C2 IF& (88)) i) I sued under federal la$ against 1 un#no$n police officers" 0hich $ere named 9unnamed: in the complaint" ii) 'ater tries to change the name by amending to change the names of ! of the officers" iii) Rule 1+ C 1 $as filed $ithin the 1!H day grace period4 butN" a J argue there $as no 9mista#e: as to the identity of the J but rather they $ere un#no$n parties b Court holds such amendment is not correcting a 9mista#e: and denies the amendment of the complaint" iv) J ob2ect because statute of limitations has run4 only $ay for this to be avoided is relation bac# v) Rule 1+ (1) )pplies loo#ing at 1 and ! together they are mutually e&clusive" vi) Rule 1+ (1) sets up a potential %rie Problem" .oes the ;llinois statute apply or does the 3RCP applyA vii) Court finds that this is an 3RCP in conflict $ith a state statue and that the 3RCP controls" a )n argument can be made that 3RCP does not cover 9un#no$n: party and the statute fills the vacuum b Kn the other hand4 Rule 1+ C 1 can be read broadly4 and really governs relations bac# or contains a negative pregnant" (1) ?his argument invites circumvention by 2ust naming anybody instead of 9un#no$n: 4urdens of Production& Persuasion& and Pleadin!# (. 4urden of Production a" Requirement of a party to introduce minimum amount of evidence to $arrant proceeding $ith that party8s case" i" More lenient than the burden for persuasion ii" %vidence must be sufficient to support a legal theory b" Responsibility for producing threshold of evidence to go for$ardO minimum evidence to meet the standard of proof" c" Production and Persuasion )re mostly for the I but can shift" d" Furden comes into play at summary 2udgment and directed verdict phases (assuming all evidence produced is true (no need for persuasion) has the party introduced enough evidence to $inA i" I files a complaint" J moves for SJ saying that I hasn8t met the burden of production (on the complaint alone) ;n response I has to introduce evidence and signal to the court that he can prove complaint J can or cannot ans$er the complaint" ). 4urden of Persuasion a" Requirement of a party to convice the fact<finder that his evidence is to be sufficiently believable

i)

Comes into play at trial during trial to convince 0ho bears the burdens of production and persuasion are matters of state la$ in diversity suites" ?here are 1 standards5 i" Preponderance ii" Clear and Convincing iii" Feyond a reasonable doubt" *. 4urden of Pleadin!# a. Some rules re6uire arties to lead issues in certain circumstances i" Rule 8a I must plead sufficient grounds for his claim" ii" Rule 8c J must affirmatively plead certain defenses" b" Furden of Production Substantialit' of Claims Summar' Jud!ment and JMOF# I. Summar' Jud!ment 7Rule .1) )" ;ntroduction to Summary Judgement i) 9Previe$: of the full trial a %fficiency measure to dispose of cases that don8t need full trial b -ever decides a 6uestion of fact treats t"e facts in t"e li!"t most favorable to t"e non movin! art' ii) E"en is SJ a ro riateO a E"en t"ere is no !enuine issue of material factO b E"en a art' "as failed to meet it%s burden of roduction. iii) Rule .1 Summar' Jud!ment# a 7a) I may move for sJ !H days after commencement" b (b) J may move for SJ at any time" (1) 0ith or $ithout supporting affidavits (J need not do more than point to deficiencies in I pleading4 he does not have the burden of production or persusion) (!) I must submit materials to sho$ he $as prepared to prove $hat he claims or dispute facts introduced by J c (c) Judge considers evidence and grants motion if there is no genuine issue of material and the moving party is entitled to 2udgement as a matter of la$ d (d) Partial SJ is possible e (e) )dverse party cannot rest on his pleading f (f) Judge has a lot of discretion to postpone resolution of SJ can delay ruling to allo$ for discovery" otes Strategies for disputing summary 2ud" 3ocus on the opposition to the sum" 2udgment motion 1) Sho$ material issue of fact" !) Sho$ that you are right on the la$" 1) Rero in on burden and determine if other side has met their burden4 and you meet your burdens" C) b" Anal'5in! Motions for Summar' Jud!ment i" Birst identif'# 0ho is ma#ing the motionA on<moving party (party in $hose light you loo# at facts favorably)

b" c" d"

ii"

iii"

0ho has the burden of production on each issueA >o succeed on a motion for summar' jud!ment& court must find# on<moving party has not met its burden of production on an issue (if the non<moving party has it)4 and the moving party has" on<moving party has not created a genuine issue of material fact" ?here is no material dispute on the facts4 and the moving party is correct on the la$" >o defeat a summar' jud!ment motion& court must find# Moving party has not met burden of production4 and the non<moving party has met its burden of production" on<moving party has created a genuine issue of material fact4 on the correct vie$ of the la$" (enuine5 supported by competent evidence" Material5 Relevant to the question of la$"

?here is no material dispute on facts4 but the non<moving party is correct on the la$ ($ho $ill usually file a cross motion for summary 2udgment)4 and the moving party is not"

c" Order of anal'sis#

i" .etermine if the non<moving party has met burden of production5 ;f yes4 is there a genuine issue of material factA ;f no4 SJ motion is granted" ii" .etermine if there is a genuine issue of material fact5 ;f yes4 case proceeds to trial for fact<finder to resolve dispute" ;f no4 2udge decides question of la$" 2etermine $"o is correct on t"e 6uestion of la$# ;f moving party4 SJ motion is granted" ;f non<moving party4 SJ motioned denied (although this party is li#ely to have filed a cross motion for SJ4 $hich $ould be granted)" Alderman v. 4GO Railroad 7S.2.E,& (8.*) i) I rode on J RR on a free pass $hich by accepting4 she $aived J liability for in2ury $hile rideing" ii) Court puts gloss on this $aiver of liability4 holding that J is till responsible for in2uries from $illful and $anton conduct" iii) J moves sor SJ4 alleging that even if the I facts $ere accepted astrue she cannot establish J acted $illfully and $antonly no genuine issue of material fact iv) J moves for SJ B evn if )lderman8s claims about rails $ere true4 it still desen8t constitute $illful or $antonly no genuine issue of material fact v) Court grants motion for SJ" C. CeloteL Cor . v. Catrett 7SCO>/S (881) i) J moves for SJ on grounds I has failed to meet burden of production ii) I submits three affidavits4 but court holds this does not meet burden4 and grants J8s iii) I appeals4 claiming J is required to put in evidence suggesting no genuine issue of material fact (motion 9made and supported:)" iv) ;f the moving party meets his FK Production4 then the party opposing must come for$ard - $ evidentiary materials4 beyond the mere pleadings4 although the evidence need not be produced in a form that $ould be admissible at trial v) Court finds J 4 $ho does nto have the burden of production4 is not required to submit additional evidence" a Rule += (c ) B 9affidavits if any: b Rule += (b) B 9$ith or $ithout affidavits 9language: 2. Anderson v. Fibert' Fobb'& Inc. 7Scotus (881) i) Puestion5 6o$ much evidence is reqired to meet the burden of production and survive the motion for SJA a ;n this case4 the evidentiary standard for libel is 9clear and convicing evidenc: that 9J acted $ith actual malice: b Court holds that in a ruling on a motion for SJ4 the 2udge must vie$ the evidence through the prism of the substantive evidentiary standard (1) Foth summary 2udgment and directed verdict inquiries" (!) 0hen considering $hether there is a genuine issue of material fact4 2udge must bear in mind the 9actual quantum and quality of proof8 necessary to prove libel" II. ,oluntar' 2ismissal and 2efault A. Rule :( 7a)# ,oluntar' 2ismissal i) I may voluntarily dismiss his action before and ans$er or motion ii) May voluntarily dismiss his action by agreement of the parties iii) .ismissal is $ithout Pre2udice the 3irst ?ime 4. Rule :) 7a)7)) ,oluntar' 2ismissal $it" Court%s Permission i) I may voluntarily dismiss his action before adverse party files an ans$er or ma#es a motion" ii) I may voluntarily dismiss his action by agreement of the parties" iii) .ismissal is $ithout pre2udice4 e&pet if dismissed more than once" C. Rule :( 7b) Bailure to Prosecute i) ;3 I fails to prosecute its claim4 J may move for involuntary dismissal" ii) @nles the court provies other$ise dismissal is an ad2udication on merits" iii) Messenger v" @"S" (SCK?@S4 1G+=) in $hich court held standard for determining dismissal is lac# of due diligence on the I8s part4 not considerations of J iv) 'in# v" 0abash R Co (Scotus 1G=!) a Court dismissed case sua sponte for failure to prsecute" b Court held such a dismissal is valid $ithout affording notice of such intention to the I or providing an adversary hearing c %ven if it is the I cousel8s falut4 dismissal is valid4 because the I has responsibility to get a non retarded la$yer" III. Jud!ement as a Matter of Fa$ 72irected ,erdictDJ-O,DMotion for a -e$ >rial) A. Control of Juries# i) Seventh )mendment provides for a 2ury trial in all civil actions4 and their 2udgement cannot be revie$ed e&cept as provided by common 'a$ 4.

a )pplies to Judge trying the case in .istrict Court b )pplies to )ppeals court revie$ing a decision" ii) * $a's for jud!e to ta+e case from jur' a .irected Serdict b Motion for a e$ ?rial c J KS iii) Rule .H JAMF a Party may move for Jaml at the close of the case b o legally sufficient evidence for reasonable 2ury to find for that party on that issue c Fefore submission to the 2ury" d (b) Kptions for 2udge B can grant ne$ trial direct the verdict4 allo$ the verdict to stand e Party may rene$ Jaml after return4 or may rule for a ne$ trial under rule +G (?he motions are usually 2oined together") (1) Motion for J)M' (!) Courts $ill rearely grant a motion for J)M' before 2ury returns verdict" (1) ;f 2ury rules the 2udge thin#s it should4 no need JM'" (C) J)M' is granted after verdict4 preserves 2ury verdict on appeal" f ;dentical analysis as a motion for summary 2udgement5 iv) Rule .8 -e$ >rials# a ) party may move for a ne$ trial on all or party of the issues for 9any of the reasons for $hich ne$ trial on all or party of the issues for 9any of the reasons for $hich ne$ trials have been granted in actions at la$ in the courts the @nited States: (common la$ history incorporated into Rule)" b (rounds 2ustifying for ordering a ne$ trial5 (1) Pre2udicial (!) Jury misconduct" (1) Serdict against the great $eight of the evidence (C) %&cessive verdict" c Motion must be made $ithin 1H days after etner of 2udgment" d Court may also order a ne$ trial on its o$n initiative" e Rule 1( =armless ;rror Rule# (1) o error that is not pre2udicial is grounds for a ne$ trial" (!) ?o be pre2udciaial4 the error must have a possible effect on the outcome" d" Favender v. Nurn (SCK?@S4 1GC=) B Scintilla of evidence case i" S$itchman died in rail yard B ! different versions of ho$ it happened" ii" J invo#ed state version of Rule .H B jud!ment as a matter of la$ B has to be before the 2ury goes out" iii" ?rial court found for O the MK Supreme Court granted a J KS motion4 arguing that 9all reasonable minds: agree that verdict for involved unreasonable speculation and con2ecture" iv" Court reverses J KS4 finding that had introduced enough evidence that a 9reasonable jur': could have found for the " ) measure of speculation and con2ecture is part of every 2ury verdict B evidence at equipoise for both stories" Knly in the 9com lete absence of probative facts to support the conclusion: should J KS be granted" ;stablis"es a federal standard is jur'3deferential standard B Iavendur v. Nurn applies a &ederal Standard as (;OI before rule P9 a very !ury deferential standard scintilla standard/ you don<t need much to let the case go to the (ury. Iavendur is at odds with Denman where the court re=uires more for the case to go to the !ury #he trend has flipped lately5 &eds don<t really apply the scintilla standard of Iavendar and the State Courts have gone back &ed Court sitting on state law case5 Cou have case law from &ed Courts in &ed Auestion and Diversity and then you have case law in ohio" Which one will you follow" #he =uestion is still up 2ote 7 E9P9. #he courts are really confused.

v" 2enman v. S ain 7Sunda' 2rive of 2eat")

?ort action for in2uries in car crash $ith no $itnesses" %vidence on both sides sparse and evenly matched E"en evidence is evenl' matc"ed& erson on $"om t"e burden of roduction is $ill lose. ) more e&acting standard for J)M' gives 2udge more authority to find that evidence is insufficient" Runs against 'avender v" ,urns scintilla Standard 0e have evidence of speeding4 a form of $rec#lessness" )ppears to ma#e it more li#ely than not that the J is responsible for the accident"

.epending on ho$ you slice it there may not be enough to meet the scintilla standard" ?he fault here is in the evidence of causation at the moment of the collision"

vi" Penn RR v. C"amberlain# 7SCO>/S (8**)

Pl" sues for $rongful death action against RR4 claiming that RR8s negligence led to the death" Sole $itness for the I $as overbalanced by 1 by the I Court finds no dispute in the facts5 J)M' (directed verdict) for J ?he court considers t$o vie$s on $eighing of the evidence Sie$ the non moving side8s evidence by itself Compare non<moving side8s evidence $ith that of moving side" Court ta#es on the role of the 2ury by determining that there is no $ay the I can $in ta#ing on the role of the 2ury (it discounts the 2ury8s only $itness) Perhaps the reasoning her eis more suited for a motion for a ne$ trial under rule +G4 in $hich the standard for revie$ is a!ainst t"e !reat $ei!"t of t"e evidenceK .ifferent from 9no reasonable 2ury can find: 4ottom Fine JAMF# ?ou must meet t"e burden of Production# It%s a retread of Summar' Jud!ement but instead of a er evidence 'ou must "ave actual evidence. vii" =art$i! v. Nanner 79t" Cir.& (88H) 6art$ig Counsulting sues ,anner4 an )ttorney" Sues for payment on consulting service breach of contract" .efends by false resume and failing to report conflict of interest" .efense of Material Misrepresentation $hich $ould be a defense for non payment" Judment for 6art$ig on .irected Serdict (J)M') ,anner claims to have raised an issue of fact on pleadings and that the 2ury is entitled to discount har$igs evidence4 not $ithstanding his failure to appear" .oes not deny that he didn8t pay4 the only opportunity that he has is an affirmative defense of material misrep" ,anner had the burden of production on the defense $hich he did not meet" Fecause he fails to meet his burden of production he gets neither directed verdictO nor $ould he get Summary Judgment" ?he fact that something is a defense for pleading purposes does not mean that the J has the burden of persuasion" Furden of Pleading doesen8t necessarily square into the Furden of Persuasion" Court finds that J did not meet burden of production for his affirmative defsnes" 3ailed to introduce evidence of his reliance on I misrepresentation4 a #ey element of his defense" %ven if the 2ury believed I made misrep4 J gave 2ury nothing on $hich to base a favorable verdict ?o late to offer ne$ evidence at the appellate level" viii" >"ree situations for JAMF# Sparse and 6venly matched" 6vidence is evenly matched " .ncredibly lopsided" .f number 7 occurs there is a =uestion as to whether to make a 1ule PJ 2ew #rials5

Discovery and 7re 1rial !anagement0

Discovery Reform0
.. Discovery " Process by which the parties obtain information for use in litigation or in anticipation of litigation. ... Goals > +. Prevents litigation from devolving into a game won by the party with more resources or superior access to information. $. Iimits or 6liminates the 6lements of Surprise C. &acilitates the search for the truth by ensuring both sides are fully prepared to advocate for their position. D. 'ets rid of unimportant .ssues. <<<. 8ncient vs. !odern Discovery0 +. Dnder the old regime parties had the burden of re=uesting discovery. $. 2ew rules triggers discovery obligation on the opposing party to disclose matters alleged with >particularity@ <H. 7ro/s and on/s of $ld v New +. Pro i4 Iess discovery G more streamline ii4 Iess litigation over discovery iii4 &osters cooperation G suspends the adversary system prevents trials from turning on strategic factors iv4 ;ore specific pleadings makes things run more efficiently

on #ah yes Justice )calia' i4 2ot compatible with the adversary system. ii4 .nconsistent with duty of +tty<s to protect the interests of their client. Disclosure re=uires atty<s to use !udgment to determine e,tent of disclosure sub!ugating client<s rights to those of the system. iii4 Put<s atty in the position of undermining client<s position. H. )cope0 +. $road for parties involved in the lawsuit. $. Standard for discoverable material5 any matter that is not priviledged relevant to the pending subject ;atter. 8M3b43E4 i4 Don<t need to be competent%admissible evidence to be discoverable ii4 Can lead to discovery of further admissible evidence. . ons of the (road rules0 i4 1ises the costs of litigation ii4 .ncentive for law firms to engage in e,tended discovery 3billable hours4. iii4 Parties with more resources are favored iv4 Does not alleviate strategic behavior of parties D. Rules for discovering material from third parties are less liberal and less mandatory #)ee discussion of Rule C4'. H<. Rule ,B Re:uired DisclosureM !ethods to Discover 8dditional !aterial 8. !andatory spontaneous disclosure under Rule ,B #a'0 i4 .dentifying information for people likely to have discoverable information. ii4 Copie%descriptions of documents data and other tangible things. iii4 Computations of damages claims. iv4 .nsurance agreements v4 .dentity reports opinions of e,perts e,pected to testify at trial #a'#,' a -ery detailed rules in this section b 1ules for non/tstifying e,perts are less stringent. vi' <dentity of witnesses. #a'#-'#8' vii4 .dentity of evidence%e,hibits to be presented at trial. #a'#-'# ' viii4 Dnder Rule ,B#a'. courts can opts can opt out of the re=uired spontaneous disclosure regime 3about half halfhave done so4. (. Discovery scheduling conference under Rule ,B #f' i4 Parties are re=uired to meet to discuss claims and defenses. ii4 Parties also must make plans for mandatory disclosures above 3which are due E9 days later4. iii4 Parties also must develop a proposed discovery plan. . Discovery scedulting conference under Rule ,B#f' D. Discovery @imits0 i4 Privilege material 1ule 8M3b43P44. ii4 Work Product 1ule 38M3b4374 and 3F44. iii' Rule ,B#b'#,'> Discretionary grounds for court to limit discovery0 a Dnreasonably cumulative or duplicative or obtainable from some other source that is more convenient less burdensome and e,pensive. b Party has already had ample opportunity for discovery but has not done it. c Cost of discovery outweights its benefits considering these factors5 3E4 +mount in controvery 384 1elative 1esources of the Parties 374 .mportance of issues at stake 3F4 .mportance of discovery in resolving these issues. %. Rule ,B #c ' Discretionary grounds for court to issue protective orders0 i4 Court has authority to limit to limit discovery that would annoy embarrass harass oppress or impose and undue burden on a party. ii4 Court has authority to tailor protective orders under ,B N to fit the situationM outright granting or denial of orders is not necessary. F. !aresse v. 8merican 8cademy of $rthopaedic )urgeons #9 th ir.. *+IC' Rule0 8 court should use its discretionary power to change the se:uence of discovery in order to balance the interest of the parties. ,B#c ' 7rotective $rders. i4 Federal 8nti>1rust )uit against the society of $rthopedic )urgeons. When 8 docs denied membership they wanted to use discovery to get letters to prove that there was collusion ii4 hill> by opening a file you undermine people<s ability to be able to say what is on their minds. iii' 7osner does not claim that it is a first amendment violation to protect to protect peer evaluations. a 7osner says that there is a first amendment interest.

(.

iv4 7osner0 .n structuring discovery !udes have the discretion this is the middle ground between granting and denying the re=uest. a .n Camera 1eview b 8M3d4 control the se=uence of disclosure5 3smoke blowing4 not really practicable. c 1edaction d Iimiting review of material to )<s files only '. )eatle 1imes v. Rhinehart #) $1D). *+IC' Rule0 8 protective order that restricts the dissemination of info. $btained by discovery does not necessarily offend the *st 8mendment. i4 L brought and action for defamation against * newspaper. ii4 Court issued order for ) to produce information on donors and members of the organi0ation and a protective order prohibiting *<s from publishing andy information. iii4 * appealed citing a &irst +mendment interest in publishing. iv4 Court holds that ther lower court had the authority under the doctrine of protective orders to restrict the use of this information. v) (alance of 3irst )mendment right $ith the right of parties to litigate effectively $ithout fear of

release orders" Discovery !echanisms0

I. Rule )17d) >imin! and Se6uence of 2iscover' )" ) party may not begin discovery process until after != (f) conference" F" @nless instructed by the court other$ise4 methods may be used in any sequence" II. Rule )1 7e) Su lementation of 2isclosures and Res onses. )" Continuous duty to supplement or correct materials F" @nless the change has been other$ise made #no$n ot the opponent" III. Rule *H Oral 2e ositions )" )ny person4 party or $itness may be deposed" i) Parties are under a duty to to be deposed only required notice ii) on Bparties need subpoena8s under Rule C+" iii) Subpoena duces tectum B requires a deponent to bring document or material $ith them to the deposition" F" 1H depositions are the default ma& i) Parties can agree out of this limit ii) Court can order additional depositions" C" Recording of the deposition" i) Recordation of every deposition is unnecessary ii) Must be transcribed to be admissible at trial" ." Corporations may be deposed i) (otta send someone $ith #no$ledge of the issue ii) o duty of investigation is required (unli#e interrogatories) iii) Careful $ith corporations as ;nterogatories may be a more appropriate first step" %" Kb2ections during depositions5 i) Parties can reserve ob2ections during deposition4 but must ans$er ii) %&ceptions to ans$ering5 a 6arrasing or oppression of the deponent b Privilege c (to preserve evidentiary ob2ections to trial) B. Rule *( Eritten 2e ositions i) Similar rules to Rule *H. ii) Fon! distance $itnesses iii) )ns$ers to $ritten questions ta#en orally" iv) See Rule 1! on the @se of depositions in Court proceedings" (" Rule 11 ;ntergatories5 i) Knly to parties not to $itnesses or non parties ii) Reasonable duty to find out information-investigation iii) (enerally limited to !+" iv) ?here is a reasonable duty of ;nvestigation" 6" Rule 1C5 .ocument Production5 i) 0ithout Rule C+ Subpoena in theory @nless it8s a non party in $hich you need a C+ ii) )pples to any tangible or any property" ;" Rule 1= Physical and Mental %&ams i) ?hese discovery requests are rarely granted as they are intrusive

eed the intervention of the court a @nli#e the entire discovery process $hich is generally administered as bet$een the parties" iii) %&amination of non<parties is especially difficult to get" J" Rule 1= Requests for )dmission i) ot really a discovery deviceO helps avoid the need for discovery" ii) )dmissions are only good for that litigation (Sorry no issue preclusion) G. General )trategia i' Discovery0 a Observe the witness not what they are saying but how they are saying it b ;ore fle,ible G allows for surprise c Cou can get parties or non parties ii' <nterrogatories a heaper b .mposes a duty of investiagion c Only for parties. 7rivileges0 <. Generally Rule ,B#b'#4'' +. Privilege outweighs relevance standard $. Person asserting a privilege has the burden to prove why he is entitled C. &ormal Priv. i4 1ules of 6videce P9E 3&ormal Privileges4 a +tty G Client 3E4 ;ust be acting in legal advisor capacity 384 .f a third party is present privilege is wiaved. 374 Client can close the mouth of the attorney. b )pousal 7rivilege 3E4 Private communications between spouses 384 Cannot force spouse to testify against one another. 374 Cannot >close the mouth@ of a spouse 3#rammel v. #rammel4 c $ther 7rivileges #*' 7riest " 7enitent #,' Doctor " 7atient #-' Fifth 8mendment against self incrimination #C' 7arent " hild d 7rivileges to prmot free and open communication. #*' Narrowly construed #,' (alanced against full disclosure principle. because they are costly to the truth. <<. Eor2 7roduct Rule0 +. Created by the courts and codified into rule 8M. i4 Aualifed privilege sometimes you can obtain documents things entititesprepared by and for the other party including for or by its atty. $ut not limited to. ii4 +bsolute priviledge/ Dnder no circumstances can there be a disclosure that reveals mental impressions thoughts strategies of a party to the case. iii' Hic2man v. 1aylor #) $1D) *+C9' iv4 P%J people survived E ) wants to go to court sends s7J interrogatories. v4 ) sought through interrogatories witness statements interview transcripts and prepared summaries prepared by the ) attorney. vi4 Court5 a &irst under 1ule 77 interogatories must be directed at a party not the party<s attorney. b Second material is not covered by the attorney client privilege as this was a communication was by a third party to the atty. vii4 Can a party in=uire into materials collected by an adverse party<s counsel in the course of preparation for possible litigation" a Court is concerned with allowing an opponent to >borrow wits@ from his adversary 3(ackson<s Concurrence4 b Court creates a two/tiered privilege for work product. #*' ;ualified Eor2 7rivilege 3i4 Documents and things 3ii4 +dverse Party cannot have acess unless there is an absolute need demonstrated by the party. 3last resort4 #,' 8bsolute Eor2 7rivilege

ii)

3i4 #o the e,tent a document contains mental impressions or plans of an attorney this material is not discoverable. E. Protects against e,ploitation/ taking the work of opposing attorney and not paying for them. 3ii4 #his material is at the core of trial prep 3iii4 #hreat of Chill on prep efforts: E. +ttorney<s would stop writing things downH candid communication between clients. 8. ) atty can depose witness themselves not rely on opponents depositions 7. ) attorney can depose those who spoke with attorney. 3iv4 #he work product rule is a common law creation in :ickman. 3v4 ) knew the identity of the witnesses and could easily have deposed themH no showing of necessity viii'Rules ,B #a'#,'. ,B#b'#-' O ,B #b' C#(' a odification of Hic2man 7rivilege 3E4 Aualified privilege 3i4 Party may obtain discovery of documents and tangible things otherwise discoverable under 3b43E4 3scope4 and prepared in anticipation of litigation or for tiral by or for another party or by or for that party<s representative 3including another party<s attorney?4 only upon a showing that the party seeking discovery has substantial need of the materials and is unable without undue hardship to obtain the substantial e=uivalent by other means. 3ii4 Pay attention E. >documents and other things@ 8. prepared in anticipation of litigation or for trial 3+ldman4 7. Prepared by or for another party or by or for that pary<s rep F. Substantial need and undue hardship. 384 8bsolute 7rivilege0 3i4 .n ordering discovery of such materials the court shall prtect against disclosure of the mental impressions. conclusions. opinions. or legal theories of on an attorney or other representative. 3ii4 8M3b43F43$4 applies to e,perts. i5' Dpjohn v. D.). #)cotus. *+I*' a +ddresses both attorney/client privilege and work party product rule. b :ere the .1S sought discovery of interview conducted by corporate counsel and the counse<s notes and memos c Dp!ohn invoked atty Gclient privilege and work product rule 3E4 Privilege applies beyond a corp >control group@ 3officers and agents4 to lower level guys. 384 Privilege is meant to encourage free and open communication so it must apply to all acting in a legal capacity. 374 Does not block independent discovery of info held 3i4 Only blocks communication with atty 3ii4 Does not provide blanket protection 3iii4 .1S is free to interview the same employees d Work Product 1ule5 3E4 Auestion as to how far the anticipation of litigation goes 384 Present case litigation will arise out of circumstances it is >fait accompli@ product is protected. ,4 Scope of >in anticipation of Iitigation@ under 1ule 8M3b43745 Core of GProduct 1ule a Fifth ircuit0 #*' $nly material prepared e5clusively or primarily for litigation #,' )trict application of privilege b )econd ircuit0 3E4 P(ecause ofQ test G .f the possibility of litigation is one of the reasons for preparing a document it is protected by the work prduct rule. 384 &ocuses on split in the language of the 1ule5 >in anticipation of litigation@ or >for trial@ 3DS v. +ldman4 374 :owever documents prepared in the ordinary course of business are not protected 3must be because of actual or impending litigation4. %5perts0 <. %5perts who 1estify0 ,B#a'#,'' +. 1e=uired under spontaneous disclosure provisions. $. 1eport prepared and signed by the e,pert is re=uired. C. Iists other information that must be disclosed. D. 8M 3b43F43+4 G Parties may depose testifying e,perts. ... 2on/#estifying 6,perts +. 1etained by opponent in anticipation of litigation

1ule 8M3b4 3F43$4/ &acts or opinions held by a non/testtifying e,pert retained in anticipation of litigation may be discovred 3 trhough depositions or interrogatories4 only upon showing of e5ceptional circumstances or need. a Protective because paid for by the opposing party b ;sut pay amount to obtain reasonable fee and also share the costs of e,perts. ii4 Auestion of whether a party may discover an e,perts< report under this provision 3courts disagree4 but can depose him if there is a need. $. 2ot retained by opponent in anticipation of litigation5 a 1etained but not in anticipation of litigation 3E4 .s the party freely discoverable as an ordinary witness" b 2either retained nor consulted. 3E4 'eneral e,pert5 is an ordinary 7rd party under FP3c4 374 3$4 384 6,pert observer5 ordinary 7rd party 3Perry4 374 .n house e,pert5 sub!ect to work party rule 8M3b4374. .... Perry v. W.S. Darley R Co. 36.D. W.s. EJLE4 +. Can an e,pert be classified as an e,pert retined by the ) in anticipation of litigation or as an e,pert independent observer $. * sought to discoer the identity of this e,pert under 1ule 8M3bE4 >over any ?.not privileged@ C. Court finds this e,pert to be a non/testifying e,pert retained by the ) in anticipation of litigation sub!ect to 1ule 8M3b43F43$4. D. * has made no showing of >e,ceptional circumstances@ to !ustify discovery of this ino so discovery re=uest is denied. <H. 7rotection Dnder Discovery Rules0 8. $utside the Relevant )cope ,Bb* is too broad. not particularly useful. $. Iimits on discovery 8M3b48 i4 Dnreasonably cumulative or duplicative ii4 Obtainable from more convenient less burdensome source iii4 Party has alredy had ample opportunity for discovery. iv4 Cost outweighs the benefit. C. Protective Orders under 1ule 8M3c 4 i4 6mbarrassment annoyance oppression undue burden or e,pense. ii4 Work Product Privilege under 1ule 8M3b47 iii4 6,pert protections under 1ule 8M3b4F iv4 2umerical limits on depositions and interrogatories as per 379 and 774. )ubpoena Rule C40 .. Special Protections for 7rd parties on where they can be called to testify and the e,tent they can be e,pected to produce info or evidence ... FP 3a4384 G $langet grant of authority to subpoena 7 rd parties +. Subpoena for appearance at trial or depo. i' 1rial " issued from court in which trial will be held. ii4 Depo. .ssued from court in district where depo will be held. $. 1ule FP 3a4374 G +ttorneys can issue subpoenas .... 1ule FP 3b4 Service 1ules5 +. E4 how served similar to service of summons (. ,' where0 i' 8nywhere within the distict of issue. ii4 E99 miles from place of depo iii4 piggy back provision applies on state law regarding service of subpoenas iv4 dictated by federal staute. .-. 1ule FP3c4 Protection of Subpoena Sed partries5 +. 7 step analysis5 i4 Was it validly issued per FP 3+4 ii4 -alidly Served per 3FP 3b4 iii4 Auashed or modified under FP 3c4 $. FP3c43743+4/ Auashing and ;odifying Subpoenas i4 Court is not limited to granting or =uashing subpoena G can modify. ii4 1easons a 7+E &ails to allow reasonable time for compliance b -8, 1ravels too far more than *33 miles of home or business place of person receiving the service c 7+F Sub!ects a person to undue burden d 7 a 7 1e=uires disclosure of privileged material 3E4 #his is where we<ll see redaction and in camera review.

i4

C. FP 3c43743$4 ;uashing or !odifying )ubpeonas0 i4 ;ore reasons for =uashing or modifying5 a 1e=uires disclosure of trade secret or other confidential material. b 1e=uires disclosure of unretained e,perts opinion or info not describing specific events in dispute 3E4 ;ore appropriate to hire them than subpoena them c ;ore than E99 miles of travel for the subpoened parties ii4 Dnder 3$4 if the party in whose behalf the subpoena issues shows a substantial need for this information and assures that the person subpoenaed will be reasonably compensated the court may order appearance or production. D. Document 7roduction under Rule C40 i4 Rule C4#a'#*'# ' Subpoena duces tecum 3re=uires witness to bring any relevant documents under their control4. ii4 Rule C4#c'#,'#('> mechnasim for challenging subpoena for document for document production or to permit inspection. iii4 Rule C4 #c' ,#8' Person need not appear with documents or at place of inspection 3allows more fle,ibility G E99 mile travel provisions.4