Personal Jurisdiction [D maybe waived if not raised in initial response]

I.

II.

Federal or State Court

a. Federal Court?
i. FRCP 4(k)(1)(A)det. whether D could be subj. to jurisdiction of court of general
jurisdiction in state where fed. court located
1. Unless 100-mile bulge, special fed. statute, alien provision
2. Alien / One Big State provision--4(k)(2)claim arising under federal
law vs. person not subject to PJ in any state?
a. If so, service will render D subject to PJ if it has minimum
contacts w/ the U.S.analyze min. contacts w/ US as whole
b. State Court?first, check long-arm [const. limit OR gives specific factual circumstances]
Constitutional Basis
a. Traditional bases:
i. In-state service
ii. Voluntary appearance / consent
iii. Domicile (for person), PPB or incorporation (corporation)
iv. Citizen of state
v. Non-resident P
b. International Shoe [in rem generally will meet min. contacts (Shaffer)]
i. Det. whether contacts serving as basis for jurisdiction are [systematic +
continuous // single + isolated], and [related // unrelated] to cause of action
1. (Sys. + Cont.) and Related = PJ appropriate, Shoe or Keeton
2. (Sys. + Cont.) and Unrelated (a general Q) = maybe, yes if contacts subst.
3. (Single + Isolated) and Unrelated = no PJ
4. (Single + Isolated) and Related = specific Q, continue analysis
c. Specific Jurisdiction: requires minimum contacts AND reasonableness
i. Minimum (claim-related) Contactsbetween D and forum state
1. Purposeful availment = D availed self of priv. of acting w/in forum state,
received its benefits / protections (Hanson) [this satisfies min. contacts]
a. D would reasonably anticipate being subject to PJ here (VW)
b. Cant exist on basis of unilat. acts of parties other than D (VW)
2. Intentional TortsD intent. targets tort conduct at forum resident,
caused the resident harm in forum (Calder) [if so, PJ appropriate]
3. K contactsee where K negotiated, executed, performed (Burger King)
4. Stream-of-Commerceif Ds product caused harm to P after traveling
through stream, check Asahi for what reqd of D:
a. OCon: mustve int. for prod. to be marketed / serve forum state
b. Brennan: aware prod. would be marketed in forum state
[reasonably anticipate it getting there]
5. Quasi in Remjurisdiction being asserted based on property w/in state

a. Analyze in-state property as youd any other contacts,

considered isolated for jurisdictional purposes (Shaffer)
6. Internet Casescheck if contacts show purposeful availment (Zippo)
a. Passive = probably no, Active = appropriate if reasonable
b. Interactive = dep. on deg. of interactivity + comm. nature/ site
ii. Reasonablenessif min. contacts, check exerc. of jurisdiction unreasonable
[balance these factors]
1. Burden / Inconvenience on D
2. State intereststronger when its laws / citizens / corps at stake
3. Ps interest in obtaining relief in forum
4. Systemic efficiencyprom. systems inter. in effic. res. of controversies?
5. Furtherance of state social policies?

Noticeadequate notice given to D? Reasonably calculated, under circ., to apprise interest parties of
pendency of action + afford opportunity to present objections (Mullane)
I.
II.
III.

Adequate Infomust convey sufficient info to notify party of how / by when to respond
Timelinessmust allow reasonable time to appear
Methodmust be one that person desirous of actually informing the party might
reasonably adopt to achieve actual notice
a. If theres better method thats reasonably practical, should be employed
i. Includes follow-up after an attempt has failed
b. If better method too expensive / time-consuming / burdensome, dont have to do it

SMJ
I.

Original Fed. Court Jurisdiction (either through diversity or FQJ)

a. Diversityreq. diversity of citizenship (different states) + amount in controversy (1332)
i. Citizenship of Partiescheck each partys citizenship at time of filing
1. Individuals (max 1)based on domicile
a. Domicile = physically present AND indicates intention to remain
there indefinitely *start w/ original when born, doesnt change
till you establish new one]
2. Corporationsplace of incorporation + principal place of business
a. PPB = nerve center of corp., place from which bus. directed
ii. Complete diversity requiredall parties on one side of action diverse from all
parties on other side [except: diversity-destroying party dismissed b4 trial]
iii. Collusive Joinderif evidence that partys improperly / collusively named just to
create diversity jurisdiction, may ignore partys citizenship
iv. Amount in Controversyclaim >$75K
1. Punitive damages can be included
2. Aggregation: P may combine separate claims to satisfy IF:

II.

III.

a. Multiple claims by one P vs. one D

b. Multiple Ps asserting an undivided interest
b. Federal Question Jurisdiction
i. Essential Fed. Elementclaim must contain this, so that it arises under fed. law
1. Creation Testsatisfied if claim create by / brought pursuant to fed. law
2. Sub. Federal Interest Testclaims state law, but right to relief depends
upon application / interpretation of federal law (Grable)
a. Fed. interest implicated must also be substantial
ii. Well-Pleaded Complaint Ruleessential fed. element must appear on face of
Ps well-pleaded complaint (Mottley)
1. Federal responses ignoredanticipated / actual defenses or
counterclaims ignored for this section
2. Artful pleadingpresence of fed. element must be genuine, not merely
artfully pleaded
Supplemental Jurisdiction28 USC 1367
i. (a)provides broad grant of supplemental jurisdiction (both must be satisfied)
1. Freestanding Claimclaim over which court has original jurisdiction
2. Common Nucleus of Operative Factsupp. claim at issue must be based
on same common nucleus of operative fact as freestanding one (Gibbs)
ii. (b)may bar juris. for some satisfied by (a) [ONLY applies for diversity claims]
1. Supplemental Claim by P, or P joining under FRCP 19 / 24?
a. NO(b) wont prevent supplemental jurisdiction
b. YESrule 19/24 Pwont qualify for supp. jurisdiction if itd be
inconsistent w/ requirements of diversity jurisdiction statute
c. YESoriginal Psupp. jurisdiction appropriate unless against
person made party under FRCP 14, 19, 20, 24
iii. (c)may provide circ. in which jurisdiction shouldnt be exercised
1. Novel State issuesupp. claim involves novel / complex state issue
2. State claim predominatesover fed. claim (i.e. bulk of evidentiary
showing relates to state issues; fed. claim minor comp. w/ state claim)
3. Federal claims dismissed
4. Other exceptional circumstances (i.e. jury confusion)
Removal JurisdictionD can rem. case to fed. under some circ; look at time of removal
i. Original Jurisdictionfed. district court must have had original jurisdiction over
Ps claims, if theyd been filed in fed. court
ii. Time LimitD must act w/in 30 days of receiving service of initial pleading
setting forth removable claim / notice of change in removability of case
iii. Diversity basisif claim couldve only been brought based on diversity, D
seeking removal must not be citizen of state where case brought [forum D rule]
iv. D unanimityall Ds must have agreed to removal
v. Federal Question Basiscan suffice for FQJ, as long as theres D unanimity + 30
day time limit hasnt expired

Venue
I.
II.

III.

IV.

WaiverD mightve waived challenge in response (12(h)), or through forum selection clause
Venue Statute (28 USC 1391)check both tests for poss. venues, then fallback if none found
a. First Testdo all Ds reside w/in same state? If YES, proper in dist. where any D resides
i. Residency
1. Individuals = equated w/ citizenship (domicile)
2. Corps = resident in districts where subject to PJ
a. Probably includes PPB / place of incorporation, as well as
minimum contacts of corporation
ii. For multi-district states, resident only in those district in which theyd be subject
to PJ if district were separate state
b. Second Testproper in any district where sub. part of events giving rise to claim took
place, or where property thats the subject of action located
c. Fallbackif no venue IDd yet, then come here:
i. Diversity-only cases: proper in any district where D subject to PJ
ii. Non-diversity cases: proper in any district where D can be found
Transfer of Venueif venue improper, may be transferred to another district
a. Jurisdiction + Venue in Transferee Ct.must be transferred to district, w/in same
judicial system, where action could initially have been brought
b. Convenience + Justicetransfer OK if in convenience of parties + interest of justice
i. Note: transferee ct. applies state law that original fed. ct. wouldve applied
Forum Non Convenienscan allow for dismissal on this ground, IF:
a. Adequate alt. forumoutside fed. system, avail. for prosecution of Ps claim (Gilbert)
i. Unfavorable Law for Pnot an obstacle to recognizing forum as viable alt.
ii. Bar to reliefbut, if doors virtually closed to P to seek relief here, not okay
b. Public and Private Interestsweigh in favor of having case heard in alternate forum:
i. Private: concerns viability/desirability of hearing case in alt. forum, consider:
1. Location of events giving rise to case
2. Availability of compulsory process for attendance of the unwilling
3. Ability to implead others into court
4. Ability to take a view of premises involved in dispute
5. Ease / cost of access to sources of proof (dep. on location of relevant
witnesses, documentary evidence)
6. Enforceability of a judgment if one is granted
ii. Public: interests of the govt. and local community of proposed alt. forum
1. Whether dispute involves local people or events, AND
2. Whether dispute likely to be decided under local law of forum

Erie Timeconcerns which states laws to apply in diversity cases

I.

1st Q: is issue covered by FRCP or federal statute? [YES = go to 2nd Q; NO = go to Erie]

II.

III.

IV.

2nd Q: is federal rule / stat. suff. broad to control issue before court? *intended / designed
to govern issue such that rules purposes served by applying it? (Walker)]
a. If Controlling, go to Hanna; if NOT controlling, go to Erie
Hanna Analysis:
a. Direct Conflictcheck if applicable rule / statute direct collision w/ law of relev. state
i. No direct conflict = federal law should be applied
ii. Direct conflict = check constitutionality
b. Constitutionality of Fed. Rule / Statutedecide whether rule reg. procedural matters,
vs. capable classification as substantive OR procedural (=reg. jud. process for enforcing
rights / duties rec. by subst. law, and for administering remedy / redress for infractions)
i. Rule / Statute regulates substanceno enforce if theres conflicting state law
ii. Rule / Statute regulates procedureif procedural, OR could be either, then
constitutional standard is satisfied
1. Federal Statuteshould be applied
2. Federal Rulecheck compliance w/ Rules Enabling Act
c. Compliance w/ Rules Enabling Act
i. Rules Defining Legal rights?
1. Def. Legal Rightsthen its subst., cant apply if theres applic. state law
2. Def. Enforcement of Rightsthen procedural, proceed to next question
ii. Abridgment of State Subst. Rights? *abridge/enlarge/modify a subst. right?]
1. NOthen complies w/ REA, is valid
2. YESif it does, then see if procedural interests advanced
iii. Procedural Interest Advanced? (Does Fed. Rule advance clear proc. interests,
and only incidentally affects litigants subst. rights?)
1. NOviolates REA, yield to conflicting state law
2. YEScomplies w/ REA and is valid
Erie Analysisif no valid fed. statute / rule covers, question becomes whether fed. or
conflicting state practice should be applied
a. Substance v. Procedure Testif issue can be readily labeled as substantive, then its
beyond scope of fed. courts to regulate w/in the states
i. Subst. Rules of CL = conflicting rules prescribing subst. duties & obligations, such
as K/tort/prop. law, as opposed to form + mode of enforcing duties and obligs
1. If so, federal legal rule may not be applied, yield to state law
2. If not, have to consider additional tests
b. Modified Outcome-Determ. Testif cant easily classify as subst. /proc., use this test
i. Forum Shopping Encouraged? (Would applying federal standard impact a Ps
decision regarding whether to file suit in federal or state court?)
1. If so, Erie policy of discouraging forum shopping disserved. Only apply
federal standard if Byrd countervailing policies would promote it
2. If not, check inequitable administration
ii. Inequitable Administration of Laws Likely? (Would applying fed. legal rule result
in substantial variations btwn. state / fed. court outcomes?)

1. If so, Erie policy disservedonly apply fed. standard if Byrd

countervailing policies promote doing so
2. If not, federal practice should be followed
c. Byrd Balancing Approachoutcome det. must be evaluated against subst. policy
interests furthered by respective state + federal practices
i. State Substantive Policy Furthered? *State practice bound up w/ defn of rights
and obligations of parties, such that practice furthers some subst. state policy?]
1. If so, det. whether theres countervailing federal policy that would
warrant application of federal practice
2. If not, presence of fed. policy thatll be furthered by app. of fed. rule will
allow court to ignore state practice. Check countervailing fed. interest
ii. Countervailing Federal Interestcheck if fed. legal rule promotes impt. fed.
subst. policy interest that outweighs signif. of policy underlying state legal rule
1. If so, follow federal legal rule
2. If not, federal subst. policy interests only slight comp. to subst. policies
furthered by state practice, so state legal rule should be followed

Pleadings
I.

II.

Adequacy of the Complaintsufficient under FRCP?

a. Jurisdictiondoes complaint adequately allege grounds for courts SMJ?
i. Diversity Jurisdictionface of complaint must reveal complete diversity of
citizenship of adverse parties in case, and satisfaction of amt. in controversy
ii. Federal Question Jurisdictionalleges federal law / constitutional provision
iii. Suppl. Jurisdictionalleges existence of original jurisdiction over other claims /
sup. jurisdiction with respect to this claim?
b. Statement of Claimdoes complaint adeq. show pleader entitled to relief?
i. Twiqbal
1. P must plead facts supporting a plausible claim
a. Not just conceivable, < probable, but plausible
2. Court will ignore conclusions of law (in past, mightve allowed this)
3. Court uses own exper. / common sense to det. if claim is plausible
ii. Admissible Evidence Questioncan party present evidence on a particular
matter, based on the pleadings?
1. Did party properly plead the claim as required?
a. If so, may introduce evidence pertaining to the matter
b. If not, look at prejudiceexclude it if adverse party would be
unfairly prejudiced by permitting the evidence
c. Damagesmust adeq. demand judgment for relief the pleader seeks
Adequacy of the Answersufficiency of Ds answer under FRCP
a. Timelinessmustve been filed w/in req. time period under 12(a)normally, 20 days
after served (unless granted extension / P consent)

III.

IV.

i. If D filed 12(b) motion, have till 10 days after 12(b) motion denied
ii. If D waived, answer due 60 days after req. for waiver sent, or 90 if D outside U.S.
b. Admissionslook at whether D has expressly / implicitly admitted stuff
i. Express admissions = D cant later intro. evidence seeking to disprove, unless
amendment permitted; Implicit = no response, deemed admitted, also cant
later introduce evidence to disprove unless amendment permitted
c. Denialsmust be sufficient to deny allegations made
i. General denialif any portion was generally denied, but was clearly true, or
denying party knew was true when denied, entire denial deemed admitted
ii. Lack of InfoD can plead if true [lack of info to form belief or truth / falsity]
iii. Neg. pregnants /conj. denialsif too specific, may be seen evasive or ineffective
iv. Specific denialsif no defects present, then answer has effectively met
allegations of complaint, and denied allegations put before finder of fact
d. Affirmative Defenseshas D sufficiently pleaded this in answer?
i. Affirmative Defense?
1. FRCP 8[c] must be set forth affirmatively in responsive pleading
2. Substantive lawif subst. law defines it as affirmative defense, must be
set forth affirmatively in responsive pleading
3. Definitional Approachordinary (controverts aspect of Ps cause of
action), affirmative (provides legal excuse / justification)
ii. Ordinary Defenselogically flows from Ps allegations, evidence supporting
defense is admissible under the denials provided in answer
Amendmentsproper under FRCP?
a. As a matter of courseparty entitled to make w/o leave of court under 15(a)
i. Responsive pleading permittedlook at whether response filed yet
1. If not, we can amend w/o leave of court
2. If its been filed, cant amend w/o leave of court or consent of adv. party
3. Motions not considered pleadings for purposes of 15(a)
ii. Response not permittedask whether 20 days passed since filing of pleading to
be amended; if yes, cant amend w/o leave of court or consent of other party
b. Not as a Matter of Courseshould amendment be permitted anyway?
i. Consentif adverse party has consented, then yes
ii. Leave of Courtcourt may decide not to permit if:
1. Adverse party will be unfairly prejudiced
2. Failure to present amendment earlier was due to bad faith / int. delay
c. Amendment to make pleading conform to evidence should be permitted, either by
consent of parties or leave of court (if no prejudice / injustice would result)
Relation Back of Amendmentsdoes it relate back to time of filing?
a. Amendment involving claim or defense (15[c](1)(B))
i. Relates back if claim / defense arises out of same T/O
b. Amendment Involving New Partyalso relates back if:
i. Claim arises out of same T/O

V.

ii. Noticeparty to be brought in received notice (w/in 120 days) of the action, so
wont be prejudiced in mounting defense on the merits
iii. Awareness of Real Party Status:
1. A) Party knew / should have known it was intended party in the action,
AND B) failure to name party originally was due to mistake
Rule 11 Sanctions
a. Violation?
i. Pre-filing Inquiryattorney / party signing must have conducted reasonable
inquiry into factual / legal matters presented before submitting to court
ii. Improper purposefiling must not have been made for purpose such as
harassment, delay, increasing costs of litigation
iii. Frivolous Legal argumentscan be found if:
1. Existing Lawfiling must cite to applicable law supporting claims made
2. New Lawif filing argues for modification of law, must be in an area of
law lacking current, clear, recent binding precedent
iv. Unsupportable Factual Allegationsmust have evidentiary support, or must be
likely to have such support after further investigation
1. If no evidentiary support develops after further investigation, further
advocacy of allegation / denial is also Rule 11 violation
b. Sanctions?
i. Motion for sanction under Rule 11 made?
1. By one party: served on adverse party, then give 21 days to change /
withdraw first (11[c]2 safe harbor)
a. If adverse party hasnt withdrawn challenged filing, then can file
motion with court
2. On courts initiative: direct party to show cause for support; if no
support found, may enter sanctions if it feels goal of deterring future
Rule 11 violations would be served

Joinder of Claims and Parties

I.

Permissibility of the Claim (note: still determine whether court has SMJ and venue, too)
a. Defending Partys Claim against Opposing Party? [note: applies to 3Ds, too]
i. Then its either a compulsory / permissive counterclaim
1. Then, does claim arise out of same T/O as claim asserted against party
making the counterclaim?
a. Question = logical relationship between claims; requiring
separate trials result in duplicative multiple litigation?
i. Same T/O = compulsory, assert it or waived (13a)
ii. Not same T/O = permissive, can be brought at
counterclaimants option (13b)

II.

2. 13(h) allows joinder of additional parties to a counterclaim under

circumstances provided for in FRCP 19 and 20
b. Claim against a Non-Aggressor (party who hasnt asserted claim against claimant)
whos claim being asserted against?
i. Opposing Party Dclaim may be joined w/ claimants original claim, 18(a)
ii. Copartycheck if claim [arises out of same T/O as subject matter of original
claim / counterclaim therein], OR *asserts that party against whom its asserted
is / may be liable to claimant for all or part of a claim against the claimant]?
1. If so, claim may be asserted as a crossclaim, 13(g)
2. If not, claim may NOT be asserted as crossclaim, unless claimants
already successfully asserted a claim against the coparty, in which case
claim at issue could be joined to that existing claim under 18(a)
iii. Rule 14 Partyif claims against existing 3D (so he was joined by original D),
check party status of claimant
1. Claimant is 3rd Party P (original D)can be joined to existing 3rd-party
claim under 18(a)
2. Claimant is original Psee if claim against 3D arises out of same T/O as
Ps claim against the original D (now 3rd party P)
a. If so, claim may be asserted against 3D (14(a))
b. If not, claim not permitted under 14(a) unless Ps already
successfully asserted claim against 3D, in which case claim at
issue can be joined under 18(a)
3. Copartyif claimant is coparty of 3D, go back to Coparty analysis
iv. Against P, by 3Dsee if claim arises out of same T/O as Ps claim vs. original D
(now 3rd party P)
1. If so, claim may be asserted against P
2. If not, claim not permitted under 14(a) unless 3D has already asserted
claim against P, then 3D can join through 18(a)
v. Rule 19 or 24 Partylook at status in lawsuit once joined
Permissive Party Joinder
a. Joinder of Dspersons may be joined as Ds if right to relief asserted against them arises
out of same T/O and involves common question of law / fact [(20(a)(2)]
b. Joinder of Pspersons may be joined as Ps if they assert right to relief arising out of
same T/O and involving common question of law / fact [(20(a)(1)]
c. Joinder of Nonpartiescheck whether party seeking joinder is defending party
i. If not, party may not implead nonparty into action as 3D under 14(a)
1. But, check if compulsory joinder possible through 19.
ii. If so, is party seeking to assert against nonparty a claim that nonparty is liable to
impleading party for all / part of Ps claim against defending party?
1. If so, claim is proper, can be asserted against nonparty (becomes 3D)
2. If not, party wont be able to implead nonparty into the action as 3D

III.

d. Joinder by Nonpartiesif party seeking joinder is nonparty, must have right to

intervene under 24(a)(2) [all must be satisfied]
i. Interest in Actionif nonparty doesnt have interest in action, then 24(a)(2)
wont give him the right to intervene
ii. Impairment to interestif disposition of action wouldnt impair nonpartys
ability to protect its interest, no right to intervene under 24(a)(2)
iii. Adequate Representation of Interestif nonpartys interest not adequately
represented by existing parties, no 24(a)(2) right
iv. Common Question of Law or Factif nonpartys claim / defense and main
action have a question of law or fact in common, then intervening appropriate
Compulsory Party Joinderrequiring a non-party to be joined in an action
a. Necessary Party Status? (Evaluated under 19(a))
i. Availability of Complete Reliefif court cant give complete relief among
current parties in absence of this party, then hes necessary (go to feasibility)
ii. Impairment to Absentees Claimed Interestif disposition of action in
nonpartys action would impair / impede nonpartys ability to protect his
claimed interest relating to subject of action, then hes necessary (go feasibility)
iii. Threat to Existing Partiesif disposition of action in nonpartys absence would
leave existing parties subject to subst. risk of incurring multiple or inconsistent
obligations because of nonpartys claimed interest related to subject of action,
then hes necessary (proceed to feasibility)
1. If none of ^3 satisfied, nonpartys not a necessary party who can be
compelled to join under Rule 19
b. Feasibility of Joinderif nonparty deemed necessary, then check this
i. PJ (over necessary), SMJ (will joining this party deprive?), Venue (has necessary
party objected to venue, and would his joinder make venue improper?)
1. If all satisfied, joinder feasible, party must be joined in action
2. Also okay if PJ + SMJ okay, necessary hasnt objected to venue
c. Indispensability of the Party (in some cases, if joinder not feasible, may have to dismiss)
i. Lessening of Prejudicecould prejudice to existing parties or to necessary party
resulting from necessary partys absence be lessened / avoided through
protective provisions in judgment, shaping of relief, or other measures ?
1. If not, party could be indispensable
2. If so, might not be indispensable, but check next question as well
ii. Adequacy of Remedyjudg. rendered in absence of nec. party adeq., from Ps
perspective?
1. If not, favors a determination that necessary party indispensable
2. If so, necessary party might not be indispensable, if no prejudice or
prejudice can be lessened / avoided. If cant be avoided, check next Q.
iii. Adequate Remedy Elsewhereif dismissed, will P have adeq. rem. elsewhere?
1. If so, favors det. that party indispensable + action should be dismissed
2. If not, party shouldnt be indispensable, action shouldnt be dismissed

Discovery
I.

II.

Discoverabilitywhether material requested is discoverable

a. Relevancemust be relevant to claim or defense of any party in action
i. Otherwise, not discoverable unless theres court order permitting discovery of
material relevant to subject matter of action, instead
b. Limitationsexisting circumstances may require ct. to limit discovery of material
i. Duplicativerequested material duplicative of stuff already sought + received
ii. Less Burdensome Alternativecan get from other more convenient, less
burdensome or less expensive source
iii. Missed Opportunityif requesting party already had ample opportunity by
discovery to obtain info sought, may limit his options here
iv. Cost Surpasses Benefitif burden / expense > likely benefit, then we might limit
discovery (especially for ESI); factors to consider include
1. Needs of case, amt. in controversy, party resources, importance of
issues at stake in litigation, imp. of proposed disc. in resolving issues
c. Protective Orderssome circs may permit court to limit discoverability, if its to protect
party from annoyance, embarrassment, oppression, undue burden / expense
i. Orders can: prev. discovery, allow on specified terms / through certain methods,
prev. inquiry into certain matters, no trade secret / conf. info revealed, etc.
Basic Discovery Devices
a. Only one that can be used directly for nonparties = deposition
i. But, w/ subpoena, can get production, inspection, entry onto premises
b. Prediscovery Disclosure (26(a)(1))counsel comes together, both sides disclose (1)
witnesses / docs they might use, (2) with supporting info, (3) damage calculations, (4)
insurance agreements; dont have to disclose stuff used only for impeachment
i. Failure to disclose here may result in exclusion of evidence
c. Depositionsexamination of witness under oath in presence of court reporter (27)
i. Limit 1/ witness, 7 hrs / day; can take on parties (w/ notice) and non-parties
(need subpoenas); oral (more effective) and written both allowed (31)
d. Interrogatorieswritten Qs from one party to another, require written responses (33)
i. Comp. to depositions: can only be taken on parties; dep. can limit answers to
personal know., these req. knowledge + info to which she has reasonable access
ii. Answer or object w/in 30 days of service
iii. When extensive search req., can specify records and let inquiring party examine
/ copy them (33(d))
e. Requests for Admissionused in order to help eliminate issues / estimate facts (36)
i. Asks party to admit docs genuineness, truth of certain factual allegations,
applicability of certain legal concepts
ii. Response req. w/in 30 days
iii. Responses: admit, deny (but if later proven, may have to pay $ for finding info)
1. Can deny for good cause, or ignorance after reasonable inquiry

III.

IV.

2. Failure to respond may = admitted

f. Request for Inspection of Docs and Other Things (34)
i. Dont need court order or showing of good cause
ii. Objections to requests can be done w/in 30 days of service
iii. ESImay be inaccessible if party can show undue burden / cost
1. BUT, could still be ordered if good cause shown
g. Medical Examscourt action req. (so invasive)must show good cause, only for parties
h. Duty to Supplement (26(e))broad duty to supplement
Attorney-Client Privilegeeven if discoverable / no limitations or protective orders, could
still be privileged from disclosure; to be covered here, these must be true
a. (1) Communication, (2) confidential, (3) btwn. atty and client, (4) legal advice, (5) waiver
Work-Product Protectionmay be protected here (Hickman)
a. Legal Thoughtsmental impressions / conclusions / opinions of attorney / rep of party
concerning the litigation wont be disclosed under any circumstances (core w.p.)
b. Trial Preparationif materials prepared in anticipation of litigation, maybe protect if:
i. Prepped by or for party receiving req. for disc., or for this partys representative
c. Getting around this protection: (possibly, not for sure)
i. Substantial needshow subst. need for materials to prepare case
ii. Other meansreq. party show that its unable, w/o undue hardship, to obtain
substantial equivalent of materials by some other means

Pre-Answer Motions and SJ

I.

II.

III.

Ability to Raise a Defenseif its lack of PJ, improper venue, ineffective process, ineffective
service, MUSTVE been raised before any other defense / objection / pleading submitted
a. If lack of SMJ, can be raised at any time
Validity of Defensedecide whether motion to dismiss for failure to state claim:
a. FACTUAL (challenging factual allegations of complaint)
i. Not generally proper; but if supported by affidavits / factual evidence, may be
converted to an SJ motion
b. LEGAL (challenging legal sufficiency of complaint)
i. Assuming allegations true, must contain factual allegations suggesting claimant
entitled to relief under law (Twiqbal); if not, may be dismissed under 12(b)(6)
Summary Judgment
a. Movants Party Statusdoes party moving for SJ bear burden of proof on claim at trial?
i. If so, must present sufficient factual evidence (from record, or addl
submissions) to support claim
ii. If NOT, then has burden of showing no gen. issue of mat. fact exists (Celotex)
1. Through affidavits / evidence
2. Can point to existing evidence + argue that it fails to support claim
a. Once this is done, burden of persuasion goes to nonmovant

b. Discharging Ps Burden of Proofparty bearing burden of proof at trial must point to /

present suff. factual evidence to support claim, so that SJ shouldnt be entered
i. Admissible evidenceif none presented, SJ appropriate
ii. Persuasive evidenceif none presented, SJ may be appropriate
iii. Evidentiary Standardevidence must prove case to degree req. under law; if
not done, SJ appropriate

JMOL and Motion for New Trial

I.

II.

III.

JMOL
a. Appropriateness of the timing at this point
i. Close of Nonmovants Caseparty against whom JMOL sought mustve
completed presentation of evidence
ii. Submitted to Jury?
1. Yesthen JMOL cant be entered unless:
a. Jury has rendered a verdict
b. Prior motion for JMOL made before submission to jury
c. Earlier motion now being renewed
2. NoJMOL may be entered at this time if appropriate (depends on
evidentiary standards)
b. Evidentiary Support: nonmovants case must be supported by suff. evidence such that
reasonable jury could find in its favor
i. No evidenceif nonmovant failed to give evidence establishing essential
element of claim, JMOL may be appropriate
ii. Subst. evidenceeven if nonmovant presented, if facts / permissible inferences
(in light most favorable to nonmovant, w/ all credibility issues in its favor)
1. ...still point overwhelmingly in favor of one party, such that reasonable
people couldnt arrive at contrary verdict, then JMOL prob. appropriate
Right to Trial by Jury
a. Basic historical test, for non-mixtures: practice at time of 7th amendment
i. If remedy sought = legal in nature jury; if equitable judge
b. Actions joining legal and equitable claims
i. Generally, right to jury trial preserved on issues common to legal and equitable
aspects of a caseeven if equitable aspects of case predominate (Dairy Queen)
ii. Priority of issues at trialissues affecting claim for legal relief must be tried
FIRST to jury
c. Equitable proceedings seeking legal relief
i. Focus on nature of underlying claim, rather than procedural mechanism by
which claim to be adjudicated
New Trialunder some circumstances, new trial may be ordered
a. Time Limitmust be ordered w/in 10 days since judgment entered
b. Grounds for ordering new trial:

i. Legal errors, erroneous jury verdict, improper jury influence

ii. Excessive verdict (shocks the conscience)court may use remittitur to give P
option of lower amount, or face order for new trial
iii. New evidencedep. on whether it couldve been discovered earlier through
due diligenceif so, then disregard, if not, then maybe if evidence is material

Preclusion
I.

II.

III.

Claim Preclusionis claim barred by a prior adjudication?

a. Same claimidentical to, or transactionally related (same T/O)
b. Same partiesinvolves same claimant, same D, or party in privity
i. Privity: either a substantive legal relationship, or nonparty sufficiently
represented in prior action by initial party
c. Final judgmentprior action concluded by final judgment on merits?
i. On the merits: based on validity of claims at issue in case, rather than on
procedural grounds [lack of jurisdiction, improper venue, or failure to join party]
1. Note: this wouldnt be the case if the discussion is about ruling of one of
those things (Rowes special point); both JMOL and SJ are on merits
Issue Preclusionhas issue already been conclusively resolved btwn. parties in prior action?
a. Same Parties
i. (former) Mutuality rule: only one capable of being bound by prior adjudication
may use it to bind anotherso, nonparty cant invoke against original party
ii. Now, no mutuality requirement (Parklane)
iii. Offensive (against a D) / Defensive (against a P)
iv. Cant be used vs. someone who wasnt a party in case 1 (give chance to litigate)
b. Same issueidentical in all respects to issue raised in prior action
c. Actually litigated / determinedactually raised / argued by the parties
d. Necessary to judgmentresolution was necessary to judgment in prior case
i. Outcome determinativewould different decision regarding issue have affected
outcome of the case? *If so, its necessary; if not, no preclusive effect]
1. Multiple groundsif its unclear, then probably no preclusive effect
a. If each ground was sufficient, may find neither necessary
Interjurisdictional Preclusion
a. Basic rule: use preclusion law thatd govern in courts of system that rendered judgment
(as long as PJ was appropriate)
i. (F1) State court, (F2) same state generally, F1 law is proper source
ii. (F1) State court, (F2) different state, OR federal F1 law
iii. (F1) Fed, (F2) state / fed federal common law of preclusion
1. On federal law matters, use uniform federal law
2. On state law matters, borrow from state where F1 fed court sat

ADR, Case Management, Settlement

I.

ADRincludes mediation, arbitration, summary jury trials [benefits are debated]

a. FRCP 16 provides authority for case management
b. Mediation = dispute resolution process, assisted by neutral 3rd party to come to
mutually satisfying, self-determined solution
c. Arbitration = closer to litigation, 3rd considers case and designates a winner
d. Settlement = parties come together, try to come with solution
i. Losing party generally does NOT pay attorney fees
e. Rule 68Offers of Judgment
i. D (inc. P defending vs. counterclaim) give formal offer (before court); if claimant
doesnt accept and gets judgment not better than offer, has to pay Ds postoffer costs; MarekP may lose entitlement to own post-offer fees, too

Class Actions
I.

II.

III.

IV.
V.
VI.

Prerequisites (note: certifying as class action probably a procedural decision)

a. P pleads individual claim, + existence of class and a claim on its behalf
b. P must demonstrate 23(a) all met, fit into one of 23(b) categories
23(a) requirements:
a. So many people that it wouldnt work to have them individually joined (numerosity)
b. Something in common among all the people (commonality)
c. Reps claim is typical of the class members (typicality)
d. Rep can adequately represent the class members (includes eval. lawyer) (adequacy)
23(b) kinds of class actions
a. (b)1: Permits class action where necessary to avoid possible adverse effects on the
opponents of the class or on absent members of the class
b. (b)2: Authorizes class action when party opposing the class has acted / refused to act on
grounds generally applicable to the class, making decl. or injunctive relief appropriate
i. Doesnt extend to cases in which final relief is exc. or predom. for $ damages
c. (b)3 : must show that
i. Common questions predominate over individual questions
ii. Class action is superior method for resolving this dispute
1. Ex. Haley court said diff. state laws, individual cases might cause trouble
Notice under (b)3court must give individual notice to ALL members reas. identifiable
Whos bound? Generally, all members of class, unless opted out in b(3) action
SMJfor diversity + amt. in controversy, only look at reps citizenship and reps claim