Beruflich Dokumente
Kultur Dokumente
Introduction
Pleading: Documents (complaint & answer)
Discovery: parties provide each other with evidence
Summary judgment: Youve got a smoking gun
Trial: ONLY REASON WE HAVE TRIALS IS TO RESOLVE FACTUAL DISPUTES
Post-trial motions: dictated by the rules
Federal Courts: District courts Circuit Courts Supreme Courts
Where do the rules come from?
o Congress has power to create lower federal courts and power to regulate the procedure of those courts
They delegated this power to the Sup. Court
Rules are made by an advisory committee
o FRCP = 1938; SC = 1985
Goals of the FRCP Rules:
o FRCP 1: ensure a just, speedy, and inexpensive determination of every action
o FRCP 2: There is one form of action; civil action
This system is dependant on being adversarial.
o Other countries let judges decide what claims, evidence available, ask questions
o Cons: Can be expensive, assumes both parties have equal access to skilled lawyers, and have resources
Overview of Jurisdictional Concepts:
o If you file in the wrong place, it can get thrown out
o 1331 & 1332
Art III = governs judiciary
Sets up types of cases that the fed ct can hear
motion: a request to the ct to take some kind of action (not a pleading; it is a request for an order)
either moved to dismiss or a motion to dismiss motion is a noun, not a verb!!
order: the action of a ct (takes an action by issuing an order)
allegations: statements made in numbered Ps of the complaint
sua sponte: ct dismisses the case on its own
evidence: what is used to prove facts
to file: to deliver to the court
to serve: got it to the person
to serve process: to submit/give/send summons and complaint
process: the complaint & summons
response: An argument or brief presented in answer to that of a movant, appellant, or petitioner.
Hearing: on a motion, unlike a trial which is on factual disputes
Personal & Subject Matter Jurisdiction Compared
PLEADINGS
Pleading a document in which the plaintiff sets forth its claims and position on the factual and legal issues in dispute
Purposes: 1. give notice
2. provide a mechanism for ready testing of legal sufficiency of a claim
Procedural Systems:
1. Rules pleading (notice pleading) (FRCP)
a. Certain states and federal courts require that the complaint contain a short & plain statement of the claim
2. Code Pleading (fact pleading)
a. Certain states require that the complaint contain relevant facts that give rise to a claim
b. Emphasis is on the pleading facts: statement of facts sufficient to put the defendant on notice of what cause of
action (CoA) is being pleaded
c. E.g., S.C.: SCRCP 8(a): Claims for relief: a pleadingshall containa short & plain statement of the facts
showing the pleader is entitled to relief
i. Need more factual details
ii. Need more technical detail should plead enough detail to show the court that these are the ultimate
facts rather than mere conclusions of law
3. Common Law
a. writ system
b. If the s disputed issue did not fit in her writ she had chosen at the outset of the case the court would dismiss
Rule 7(a) Only these pleadings are allowed: 3 basic pleadings (complaint, answer, and reply to answer)
(1) complaint
(2) answer to a complaint
(3) answer to a counterclaim designated as a counterclaim
(4) answer to a crossclaim
(5) third-party complaint
(6) answer to a third-party complaint
(7) a reply to an answer, if the court orders one
Complaints
Complaint the initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the plaintiff's
claim, and the demand for relief
Every complaint must contain three things:
1. A short and plain statement of the grounds for the courts jurisdiction
a. Personal Jurisdiction
b. Subject Matter jurisdiction
2. A short and plain statement of the claim showing that the pleader is entitled to relief (needs legal & factual sufficiency)
3. A demand for relief sought, which may include relief in the alternative or different types of relief
Notice pleading (Rule pleading) pleading is sufficient if it put the Defendant on notice of what she had been sued for; Twiqbal
imposed an additional plausibility requirement for factual allegations
-Conley v. Gibson pleadings must give Defendant fair notice of what the Plaintiffs claim is and the grounds upon which it rests
-In re Plywood Antitrust Litigation a complaint still must contain either direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable legal theory
Code pleading/ Fact pleading requirement of statements of facts or ultimate facts (high detail, rather than claims)
constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of
common understanding to know what is intended (formalism of language in the pleading)
***In rules pleading, statement of claim, not statement of fact
pleading the evidence plaintiff who alleges facts too specifically (claims are dismissed for stating legal conclusions.)
pleading conclusions of law plaintiff who alleges facts too generally (usu. dont get thrown out for being more specific.)
too much detail vs too little detail
Defendant tested legal sufficiency by filing a general demurrer to the complaint (does not exist in Federal Court 12(b)(6) motion).
Problem: calls for highly detailed pleading too difficult to fully research all the facts needed to bring a complaint before one can
initiate the action, and thus meritorious Plaintiffs can not bring their complaints in time before the statute of limitations expires
In FRCP 8(a)(2), drafters lowered threshold of detail specificity by eliminating the word facts, but the party must still
allege some factual information that will lend to the elements of the claim to the extent that it is true. (Rule 8(a)(2) below)
S.C. Standards
SCRCP 8 A pleading shall contain:
(1) short and plain statement of the grounds including facts and statutes upon which the courts jurisdiction depends
(2) short and plain statement of the FACTS showing that the pleader is entitled to relief
(3) prayer or demand for judgment for the relief of which he deems himself entitled; relief in the alternative or of several different types may be
demanded.
FRCP 8 Breakdown:
Rule 8(a) A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has
jurisdiction and the claims needs no new jurisdictional support AND
Plaintiff must allege that the case is properly within the courts subject matter jurisdiction. (Does not
require allegations of personal jurisdiction or venue)
(2) a short and plain statement of the claim showing that the pleader is entitled to relief AND
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief
Plaintiff tells the court what recovery is sought, i.e., prayer or ad damnum clause (monetary recovery).
No dollar amount required. Plaintiff can demand damages in amount to be shown at trial.
Equitable relief (injunction, specific performance, declaratory judgment)
Can plead for relief in the alternative e.g., damages and specific performance
Rule 8(a)(2) a short and plain statement of the claim showing that the pleader is entitled to relief
What is the level of detail required under Rule 8(a)(2)?
Dioguardi v. Durning (2d Cir. case, affirmed by Supreme Court in Conley v. Gibson)
Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the
cannot prove a set of facts in support of his claim which would entitle him to relief.
There is enough to state a claim, even if pleading is not very clear, as long as substantive law would provide the
Plaintiff relief when statements are taken as true. Here, Dioguardis pleading was horribly written, but he would be
entitled to relief if all his claims were proven true. ***FACTUAL SUFFICIENCY***
Holding: The FRCP does not require a statement of fact that constitutes a COA, instead, the complaint needs to
contain a statement of the claim showing the pleader is entitle to relief
-Look to the face of the complaint
Rule 8(a)(3) a demand for relief sought which may include relief in the alternative or different types of relief
(1) Often called a prayer for relief
(2) May seek equitable relief, such as
a. Specific performance
b. Injunction (declaratory judgment)
c. Money damages
Damages as pleaded in a lump sum
Legal Sufficiency determining whether the Plaintiff has alleged a claim recognized by the law
Defendant makes a Rule 12(b)(6) motion for failure to state a claim.
The court only looks to the face of the complaint (it does not consider evidence that may support the allegations):
1. assumes (for the purposes of this motion) that the Plaintiffs factual allegations are true.
2. Asks: If these allegations are true, would the law provide a remedy?
3. If the fails to state a claim, the court will grant the Rule 12(b)(6) motion (usually with leave to amend to give the
another chance)
Plaintiff may fail to state a claim, even if the factual allegations are fairly specific, because the law simply does not allow any relief
based on those facts (Garcia, 2nd issue: cannot get relief for statements protected under absolute privilege on labor board hearings).
Factual Sufficiency Plaintiff must allege facts in complaint to some level of specificity. Court will read factual allegations in the
light most favorable to the Plaintiff (isnt a hard threshold to pass).
Standards of Appropriate Specificity:
1. code pleading/ fact pleading
2. FRCP notice pleading (put on notice)
3. Twiqbal (Twombly/Iqbal) plausibility pleading
Garcia v. Hilton Hotels (Fed. Dist. Ct. Puerto Rico)
o Garcia fired: violently discharged. Hilton makes Rule 12(b)(6) motion b/c Garcia did not allege that
slanderous statements were published (element of defamation). Court says it is clear that Plaintiff stated
violently discharged to allege publication, and it reasonably may be conceived that Plaintiff, at trial, could
show evidence to prove publication. factual sufficiency
o Hilton articulates slanderous statements again in hearing at the Labor Dept. Argues that they have absolute
privilege from suit b/c conclusive defense to an action based on utterance. Absolute privilege was given them
via statute.
Conditional Privilege: immunizes a from suit only when privilege is properly exercised in
performance of a legal or moral duty (ex: attorney)
Absolute Privilege: immunizes the from suit no matter how wrongful the action might be, or if done
with improper motives (proceeding authorized by law) (Hilton hotel said it under oath) (ex: priest)
(Absolute privilege for statements made in legislative or judicial proceedings.) Garcia would not be
entitled to relief even if he could prove his allegations were true b/c not actionable according to the
law. legal sufficiency
o Holding: A motion to dismiss (FRCP 12(b)(6)) requires that a P failed to state a claim up on which relief can be
granted, not that the failed to state a CoA. When construing a 12(b)(6), all inferences are drawn in light
favorable to the . Dismissal should not be ordered unless there is no basis for relief.
Vaguness will not defeat a complaint. The complaint alleges that was falsely and slanderously
accused of procuring prostitution. Although the complaint failed to alledge publication and specific
instances of when these statements were made, the complaint should not be dismissed on this basis.
Instead, the shold have to provide more definite statement
Bell Atlantic Corp. v. Twombly
o Plaintiff were consumers who sued a group of regional phone and Internet service providers, claiming that by
agreeing not to compete with each other, the service providers kept fees artificially high. Plaintiffs only allege
conscious parallelism (that defendants were aware of each others actions and engaged in such actions
themselves), which is only actionable if it is a result of an agreement between the defendants. Court holds that
allegations do not eliminate the possibility of independent action. Conscious parallelism OR an agreement
Both are equally possible. Policy: to protect corporations from difficult, expensive discovery phase; no way to
defend w/o some idea of how and why the defendants conspired
o Holding: Plausibility Standard must allege facts that, if true, would plausibily suggest a conspiratorial
agreement. To alledge facts that are merel consistent with a conspiracy is not sufficient
o Takeaway: Plausibility standard must include enough facts in complaint to make it plausible, not merely
possible or conceivable, that they will be able to prove their crimes. **no one really knows what this means**
Ashcroft v. Iqbal
o Muslim citizen in Pakistan suing AG and Director of FBI alleged that after Sept 11 they arrested and detained him under
restrictive conditions. Extended Twombly plausibility
o Issue: are conclusory allegations that high-ranking government officers knew of or condoned allegedly
unconstitutional acts by subordinate officials sufficient to state a claim for unlawful discrimination
o Reduces Twombly to two working principles:
1. ignoring conclusions of law identify the parts of complaint that are merely legal conclusion
Rule 8 does not unlock the doors of discovery for a Plaintiff armed with nothing more than conclusions.
2. applying the plausibility standard to the remaining factual allegations taken as true
conceivable (capable of being grasped mentally) v. plausible (reasonable or probable)
Holding: Iqbal failed to plead sufficient facts to state a claim for unlawful discrimination. Iqbal needed to plead
sufficient facts to show that the s implemented their policies for the purpose of discrimination his complaint did
not do this.
judge must use common sense and experience to determine if the claim is plausible
Takeaway from Twonby & Iqbal:
1. These cases altered deferral court pleading standards, requiring s to include far more detailed facts in a complain if
they want to survive a Rule 12(b)(6) motion to dismiss
2. Plausibility standard
If it doesnt say it has to be stated with particularity, the default is FRCP 8(a)(2). 8(a)(2)= generally
Leatherman v. Tarrant County
It is inappropriate for the court to expand heightened specificity to claims other than those listed in Rule 9.
Holding: Fed cts may not heighten the requirements of the pleadings beyond what is specified in the FRCP 9.
Filing and Serving a Complaint
to file to submit to the court
to serve to submit/give/send to other parties
to serve process to submit/give/send summons and complaint
Rule 4 Summons (how to serve and file the original complaint higher standard to give notice to , make sure he knows)
4(c) Service (not in syllabus)
(1) Summons must be served with a copy of the complaint. Requires service on Defendant, not attorney
(2) service cannot be done by the party (can be done by any person who is a least 18 years old and not a party)
(3) not by regular mail, unless state law allows it certified mail.
Rule 5 Serving & Filing Pleadings & other Papers
(governs subsequent filings now everyone is aware of what is going on)
requires service of process on attorney (to keep parties apart)
allows service by regular mail
possibility of electronic service w/ consent
includes with leave to amend complaints (amended)
5(d)(1): any paper after complaint is required to be served together with a certificate of service
5(a) when required 5(b) how made 5(c) filing
Responding to Complaints
Pre-Answer Motions
How and when should a Defendant respond via motion?
Motion a document in which a party requests that the court make a certain order (court can grant or deny a motion)
Order a document embodying a courts decision
Filing a pre-answer motion under Rule 12(b) is an alternative to answering the complaint. A Defendant who make a motion to
dismiss under 12(b) need not answer the complaint until after the motion is decided.
Policy: to shortcut the litigation process
Two options under 12(b):
1. Raise PRE-ANSWER motions
has valid defense to court proceeding with the case (& save $)
If you prevail on the motion, youll never have to answer!
2. Raise defenses in answer
Answers
How and when should a defendant respond via an answer?
a type of pleading that responds to a complaint
v. making a motion tactical difference = must respond to the substantive allegations in the complaint
2* Things you can do in an answer
(1) respond to allegations Rule 7
a. Admit (establish undisputed facts)
b. Deny Rule 8(b)(2-4)
i. General denial (rule 8(b)(3)) one sentence answer that denies every allegation rare must be made in
good faith
ii. Specific denial respond to each separately
iii. Qualified General Denials need not match the complaint for (ex: admits allegations in 5 and denites
each and everyt other allegation of the complaint)
c. Claim they lack sufficient knowledge to admit or deny (Rule 8(b)(5))
i. Can not be used if the has reasonable access to the information or might be a Rule 11 violation
(2) affirmative defenses raise new matter
a. Rule 8(c)(1) parties must state their affirmative s in the answer. These inject new matter into the dispute
(3) Counterclaim**
Rule 54
(c) Demand for Judgment; Relief to be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in
the pleadings.
Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its
pleadings.
Rule 60(b)
(b) Grounds for Relief From a Final Judgment, Order, or Proceeding
See rule book.
Default a ministerial notion on the courts docket sheet that the Defendant has failed to plead or otherwise respond in time
Defendant fails to respond in any way within the appropriate period Rule 12(a)(1)(A)(i) = 21 days
Not automatic must ask the clerk to enter the default on the docket sheet Rule 55(b)(1)
Default Judgment a final order as concluding the litigation on a claim or entire action in favor of one party or the other
1. By the clerk: Rule 55(b)(1)
o Requirements:
Sum certain or sum that can be calculated
must make request to clerk
must produce affidavit showing the amount due
must not have defaulted for not appearing
cannot be a minor or incompetent person
o If these requirements are met, then the clerk MUST enter default judgment
2. By the Court: Rule 55(b)(2)
must apply to the courts
has no absolute right to default judgment
Default judgment may be entered against a minor or incompetent person ONLY IF represented by a guardian,
conservator, or other fiduciary who has appeared
If its a party who has appeared before, you must serve them with notice of the application for default judgement at
least 7 days before the hearing
Setting aside a default judgment (Rule 60(b))
Good cause
o DJ was set aside because the defaulting party has been distraught over husbands death, had been under the
care of a psychiatrist, was not familiar with legal matters, and did not try to manipulate the proceedings
Rule 15(c)(1) - Relation Back of Amendments A Way to Beat the Statute of Limitations
Provides that an amendment to a pleading relates back to the date of the original pleading if it arises from the conduct,
transaction, or occurrence set forth in the original pleading.
o This means that the claim asserted in the amended pleading will be treated as through it had been asserted in the
original pleading.
o Rule provides that once you have sued the Defendant for a certain transaction or occurrence, any amendment to
add new claims based on the same conduct, transaction, or occurrence of the original action will be treated, for
statute of limitations purposes, as though it had been in the original complaint
i. The relation back provision addresses the common situation in which a party adds a claim by amendment
after the limitations period for that claim has passed.
a. statute of limitations requirement that sets a time for when suit can be filed
i. The purpose of the limitations period is to provide notice to the Defendant within a prescribed
period of time. The relation back provision does not destroy this notice b/c Defendant is
already placed on notice that shed been sued for the overall event.
ii. Thus, the statute of limitations will not bar the claim, even though, it was asserted in an
amended pleading filed after the limitations period has run.
15(d) - Supplemental Pleadings
The court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading.
a) Ex: oral argumentswhen judge asked us a question and we didnt know, we asked to answer in a supplemental
pleading (didnt state the claim or defense in original pleading)
Rule 11(b) **ONGOING DUTY** subjective (to the best of the persons knowledge, information, and belief) AND objective
(reasonable inquiry) standard Certifying = promising
after an inquiry reasonable under the circumstances
a. (a)not an improper purpose
2. Example: What if client comes to you the day before statute of limitations runs? allegations
would only be based on an interview with your client Still, this is reasonable under the
circumstances b/c the client just came to you
3. If there is time to do more, a reasonable investigation should involve taking other steps. A
lawyer must go beyond what her client tells her
4. If all evidence supports the opponent, the lawyer is not violating Rule 11 by proceeding.
a. The lawyers evidence is the clients word Client could testify in court
i. Clients story must be facially and reasonably credible so that the lawyer has
reason to believe that this is evidentiary support.
b. Lawyer should council client and tell him that he will not prevail
(1) nonfrivolous argument or warranted by existing law
5. the argument has been re-affirmed many times or was just decided
6. Sometimes there are reasons to sue even when one cannot win. Bad court decisions must be
challenged if they are to be overruled, but the early challenges are certainly hopeless. (Eastway
Construction Corp. v. City of New York)
7. party cant be sanctioned for violating 11(b)(2)
(2) evidentiary support or likely have evidentiary support
1. promises about the facts reasonable investigation
reasonable belief
2. Must have a factual basis beyond mere opinion or speculation to support the pleaded facts, as well
as a colorable argument for the legal positions asserted in the complaint
3. Certainty or admissible evidence is not required
11(c) Sanctions
(1) a ct may impose sanctions but doesnt necessarily have to
(2) Safe Harbor Provisiona motion for sanctions must be made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b)
a. Must be served under Rule 5, but dont have to file it bc it gives an opportunity to fix pleading so
dont have to bother judge about it. If not fixed, then Im filing it.
b. Gives you a chance to amend or remove claim.
c. Have a right not to be sanctioned w/o having benefit of 21 days safe harbor.
d. Protects party who may have made a mistake, a chance to amend.
e. Keeps a lot of motions from going to the court.
(3) Ct may order attorney, or law firm or party to show cause why conduct described in order has not violated 11(b)
(4) Nature of a Sanction look in rule book
(5) Limitations on Sanctions ct must not impose monetary sanction against
f. A represented party for violating 11(b)(2) or
i. If unrepresented (not included)
g. Own its own, unless it issued the show-cause order under rule 11(c)(3), need ct order
i. Has to be before voluntary dismissal or settlement of claims
(6) Order imposing sanction must describe sanctioned conduct
How can parties learn about each others cases before trial?
DISCOVERY
Overview:
File complaint Submit 26(f) report 16(b) conference (optional) 16(b) order final pre-trial conference trial
Two meanings of discovery:
1. Phase of litigation
2. Disclosure giving each other information
Discovery is the process by which parties request information from each other, and if necessary, enlist the courts power to compel
each other to respond.
Purposes:
1. preservation of evidence that might otherwise be lost before trial
2. provide mechanisms for narrowing the issues in dispute between the parties
3. permit parties to acquire greater information about their own and the others side
a. strongest evidence of wrongdoing will be in the possession of the alleged wrongdoer Plaintiff would otherwise
not have the necessary proof
-The discovery rules allow parties to learn, well in advance of trial, what evidence the other side has in support of its claims or s
-The discovery rules also permit parties to acquire information for the purpose of strengthening their own cases. The strongest
evidence of wrongdoing will be in the possession of the alleged wrongdoer without access to this information, the plaintiff would
not have the necessary proof to have a successful case.
Disclosures: The act or process of making known something that was previously unknown; a revelation of facts
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 26(a)(1) Required Initial Disclosures (Automatic Disclosure)
i. Requires each party to disclose certain information without any request by another party:
i. name, address, and telephone number of each individual with discoverable information
ii. a copy of all documents, electronically stored information, and tangible things in
possession, custody, or control
iii. computation of each category of damages and documents used to compute damages
iv. insurance liability insurance produced by the defending party that will satisfy
judgment (purpose to encourage settlement)
ii. Limited to discoverable information and witnesses the party may use to support its claims or defenses (NOT
information the party plans to use against the other party, even if within the scope of discovery under Rule
26(b)(1)) aka: the good stuff
1. Parties can only obtain damaging information through interrogatories, document requests, and
depositions. Now you should find out what information the parties have against you!
iii. 26(a)(1)(C) disclosure at or w/in 14 days of 26(f) and categories of info that must be disclosed.
iv. 26(a)(1)(E) a party must make its initial disclosures based on the info then reasonably available to it, not excused
from making disclosure because it has not fully investigated the case.
v. 26(a)(4) disclosures must be in writing, signed, & served
1. DO NOT FILE
Example: What if Defendant alleges contributory negligence, but does not provide any evidence before disclosure date?
Can be a violation of Rule 11, but if alleged upon information and belief, may not violate Rule 11.
Interrogatories -- Rule 33
1. Questions propounded by one party to another (rule doesnt cover nonparties), seeking information relevant to the issues in
dispute.
2. Pros: most frequently used, inexpensive, effective in providing basic background information
3. Cons: (1) interrogatories are frozen = no follow up questions (2) opponent will construe questions differently
4. 33(b)(2) party must serve answer within 30 days after being served w/ interrogatories
5. Are answered under oath (Rule 33(b)(3)) subject to perjury
6. 33(d) Option to produce business records (if a business is on the receiving end, allows responding party to give access to
files/business records rather than writing a response)
a. specifying the records that must be reviewed in sufficient detail to enable the interrogating party to locate and
identify them as readily as the responding party could; AND
b. giving the interrogating party reasonable opportunity to examine and audit records and to make copies,
compilations, abstracts and summaries
c. burden has to be the same for both sides
d. Dont usually do this because they might find docs that 1) dont relate but want to keep private or 2) find something
you dont want them to or 3) youre probably going to have to go through it anyways
7. A party answering interrogatories has no duty to go out and conduct a detailed investigation of facts beyond her control in
order to respond. It is sufficient to respond with information you know or that is within your control.
8. Even if all the ?s are objectionable, you still have to answer w/ objections stated with specificity
a. Attorneys sign the objections because theyre coming from the law and it is their job to know when to object
9. SC has standard Interrogatories pre approved. sounds similar to automatic disclosure
Rule 30 -- Depositions
A deposition is the taking of testimony from a witness under oath. Counsel for both parties sit down with the witness, and the
attorneys requesting the depositions questions the witness. The testimony is recorded by a court stenographer.
1. Can take the deposition of any person, including a party. persons who are not parties (witnesses, physicians, custodians
of relevant records, etc.) Rule 30(a)(1)
2. If a person to be deposed is not a party, she must also be subpoenaed for the deposition under Rule 45.
a. A subpoena is a court order to appear and give testimony.
b. If deposing counsel wishes a non-party deponent to produce records or other tangible evidence for the deposition,
she must serve a subpoena duces tecum to command the production of the requested items, specifying the
documents or tings to be brought to the deposition.
3. Person deposed is under oath and on the record may be examined by deposing counsel on any issues within the scope of
discovery
a. Objections
i. Counsel representing the deponent may object, but the witness is usually required to answer the question
(Rule 30(c)(2)).
1. Counsel frequently stipulate at the beginning of the deposition that they will save all objections
(except to the form of the question or as to privilege) until the time of trial.
ii. Where an objection is based on privilege (or enforce limitation by court order or present a motion under
30(d)(3)) Counsel for the deponent will instruct deponent not to answer the question
4. Counsel for the deponent has the right to cross-examine after deposing counsel has finished (usually for clarification b/c can
talk to her own witness privately)
a. If the deposition is a trial deposition (one that will be used at trial in place of the witnesss live testimony), counsel
will cross-examine fully
5. Rule 30(b)(g) an agent of an organization binds the organization in their deposition. The organization has a duty to prepare
and designate
6. Glannon:
a. Most effective method of obtaining detailed information: gets to see the party answer, party must answer
spontaneously and uncoached, counsel can frame follow-up ?, its on the record
b. Drawback: time and $$ (cost of court reporter per page)
c. Should be taken at the end of discovery when you have a lot of information
Duty to Supplement Rule 26(e)
1. Supplementing Disclosures (automatic) and Responses (Interrogatories)
a. Disclosures made under Rule 26(a), responses to interrogatories, requests for production, or requests for admission
must supplement or correct if incorrect or incomplete w/in a timely manner
b. 26(e)(2) changes must be disclosed by the time parties pretrial disclosure.
i. No duty to supplement lay witnessesalmost impossible too massive hundreds of questions
2. Not covered by the rule: depositions of non-experts!!!
2. 37(b): Disobedience of Court Order. Note that this provision is normally triggered only where the court has already issued
an order in response to a motion to compel or a motion for a protective order. (ct grants motion to compel)
4. 37(d): TOTAL FAILURE of Party to Attend Own Deposition or to Serve Rule 33 or 34 Responses.
a. Note the difference between these situations and partial failures covered by 37(a).
i. Difference btw this and 37(a)?
1. 37(a) covers partial failures. This section talks about TOTAL failures
2. This is talking about failure to appear not disclosure. 37(d) is also failure to serve where 37(a) is
failing to make designation or failure to answer.
b. Whats covered?
i. Party didnt even show up to its own deposition
ii. Party didnt serve ANY answers to interrogatories
iii. Party didnt respond AT ALL to a request for inspection
5. 37(e): Electronically Stored Information (ESI). This provision notes that a party cannot be sanctioned if it negligently
loses ESI in good faith or destroys ESI in good faith because of an existing document destruction/retention policy.
HOWEVER, a court may issue these sanctios upon a finding that a party intentionally failed to preserve such ESI in order to
deprive other parties of it. Note that a party acquires an affirmative duty to suspend its normal document destruction policy as
soon as it reasonably anticipates litigation. At that point, the destruction policy will not be an excuse for failing to provide
requested docs under Rule 34.
6. 37(f): The 26(f) Conference. A party may be sanctioned for failing to participate in good faith with opposing counsel in
framing a discovery plan.
2) If not, did party fail to serve responses/appear at depos? 37(d). Fail to serve disclosure at all? 37(a)(3)(A) and 37(c)(1).
3) If party served disclosure but did not answer particular q. or disclose particular fact, 37(c)(1) applies and party cannot use info at
trial, and jury may be informed. Also, other sanctions in 37(b)(2)(A)(i)-(vi). (See 37(c)(1)).
4) If party served discovery resp. or showed for depos. but did not answer particular q./request, move to compel under 37(a). Can
get costs of motion if its granted.
5) If party served disclosures/discovery responses but disclosures/responses were incorrect, incomplete, not in good faith, not made
after reasonable investigation, 26(g) applies. Court must impose appropriate sanction. 26(g)(3).
1. Rule 56(a) Authorizes the Court to enter judgment whenever it appears that there is (1) no genuine dispute of material
fact and (2) the movant is entitled to judgment as a matter of law
2. Allows early resolution of cases in which the Plaintiff meets the minimal burden to plead the elements of a compensable
claim (defeats 12(b)(6)), but cannot prove one or more of those elements.
3. 56(b) Can make motion for SJ any time until 30 days after the close of all discovery (filed before trial)
4. 56(c)(3) The court need consider only the cited materials BUT it may consider other materials in the record
5. Partial summary judgment (Rule 56(g)) disposes of some, but not all, issues in the case
6. Test If the evidence, taken in the light most favorable to the nonmoving party, shows that there are no genuine
issues of material fact and that the moving party is entitled to judgment as a matter of law.
a. Another test whether a reasonable jury could find for the non-moving party
What motions can the party make after evidence has been presented?
POST-TRAIL MOTIONS
(Directed Verdict) Rule 50(a) Judgment as a Matter of Law aka JMOL Post trial
1. FRCP 50(a) Judgment as a MOL in a jury trial:
a. If the court, having heard the evidence at trial, concluded that no reasonable jury could find for one side, the court
may enter judgment without submitting the case to the jury
b. Even if the court believes that the preponderance of the evidence favors one party, if jury could rationally find for
the other party, it must be given an opportunity to assess the case
c. JMOL: determined before the jury goes out, taking the case away from the jury
i. Used as a device by judges that they may use to control the jurys decision making process
ii. Either party may move for a JMOL (directed verdict)
iii. Determines the outcome as a MOL
d. Party can move on a single issue (ie: motition for judgemnet on one issue)
e. Very hard to get judges want a jury verdict to work with and usually juries get it right
2. Standards:
a. Three standards:
i. Case should go to jury if there is even a scintilla of evidence to support the opposing partys case
ii. Requires judge to consider only evidence that supports the case of nonmoving party judge must assume
the truth of all evidence offered by nonmoving party, take all inferences from the evidence in light most
favorable to that party, and enter jmol only if that evidence would not support a verdict for the nonmoving
party
1. Test: Whether the jury, if it chooses to believe the nonmovants evidence, would have sufficient
evidence to support a verdict for that party
iii. Requires the judge to consider the nonmoving partys evidence in its most favorable light but also consider
any evidence put forward by the moving party that is not impeached or contradicted by the opposing
partys evidence
3. Difference between SJ:
a. The court, in Sj, makes its ruling on the basis of affivadits before trial while DV is granted on the basis of the
evidence directed at the time.
Dadurian v. Underwriters at Lloyds of London CoA reverse the trial courts denial of a new trial. The jury;s verdict was against the
great weight of the evidence strong evidence that knew he was giving false testimony
Back-up: If you miss the 28-day window to request under Rule 59, see if Rule 60(a)-(c) can save you.
If you discover evidence more than 28 days after the judgment, party can move for relief under Rule 60, provided the motion
is filed no later than one year after entry of the judgment.
Joinder of Claims
Rule 18(a)
In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as
many claims as it has against an opposing party.
Provides that a party seeking relief from an opposing party may join with his original claim any additional claims he has against
that opposing party
Party means any party seeking relief against another party (not just the original Plaintiff)
No common transaction or occurrence requirement permissive (can join unrelated claims)
o Save costs filing costs , etc& money judgment all at once
Rule 42(b): Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of
one or more separate issues, claims, cross-claims, counterclaims, or third-party claims. When ordering a separate trial, the court may
preserve any federal right to a jury trial.
a) Policy of Rule 42: weighing efficiency, convenience, and justice. Rule 42 lurks in the background.
b) Orders separate trial if it would be confusing for the jury to hear everything in one.
Jurisdictional Issues with Joinder Joinder rules do not confer any rules about jurisdiction
Joinder claim is still must be subject to subject matter jurisdiction in the federal courts.
Impleader Rule 14
When can a defendant bring in a new party and assert a claim against him or her?
Parties:
o The third-party plaintiff
o The impleaded third-party defendant
Rule 14(a) gives the a limited right to implead new parties against whom she has claims related to the main action.
o may bring in a person not yet a party to the suit who may be liable to her for all or part of any recovery the Plaintiff
obtains on the main claim. derivative liability
indemnification complete reimbursement
contribution partial reimbursement
Made by common law, by contract, or by statute The state substantive law must allow for contribution or indemnification.
The impleaded party may escape liability by defeating either:
o The s original claim (because if the doesnt have a claim against the original , the impleaded party will also not
be held liable)
o The derivative claim against her
The rule allows 3P impleader to assert defenses to both
Not required may under 14(a)(1)
Allowed to tack on 18(a) claims if has a claim that relates first
Rule 14(a)(1)
Impleader claim is treated like an original suit (ie: for pleading, filing, process,etc purposes) The defendant as third-party
plaintiff must file a third-party complaint against the impleaded third party defendant only if nonparty liable to
Third-party complaint (original ) must comply with the pleading requirements of Rules 8-11 & must be served under Rule 4
Third-party Defendant must respond under Rule 12 and has the same options to answer or move to dismiss.
Original Defendant may implead a 3P within 14 days of answering the original complaint without obtaining leave of court.
Automatic Impleader provision
outside this period it is always within the courts discretion to refuse to entertain the impleader claim
Factors favoring: efficiency of hearing the related claims together and avoidance of repeated suits or inconsistent
judgments
Factors suggesting denial of impleader: delay in seeking impleader, complication of the issues in the main action,
and potential prejudice to the plaintiff from impleading a sympathetic third party
Rule 14(a)(2)
What a Third-Party Defendant Can Do: act like a normal
must assert any defense against third-party plaintiffs claim under rule 12
The impleaded party may escape liability by defeating either the Plaintiffs original claim or the Defendants derivative claim
against her. Consequently the rule allows her to assert defenses to both. 14(a)(2)(A) Defenses to third-party claim
14(a)(2)(C) Defenses to plaintiffs claim against original defendant
i) Derivative liability: only used for reimbursement, theories of indemnification (from express k provision or implication)
or contribution (jointly and severally liable in tort)
(1) Third partys liability derives from you as a defending party being liable to your opponent
(2) Impleaded party is only liable if:
(a) Original D is found liable; and
(b) Original D successfully demonstrates the 3P is liable for all or part of the Ps remedy
b) Not mandatory b/c defending party may not have chosen the forum
Federal courts have limited subject matter jurisdiction, which means they can hear only specific types of cases.
There is a presumption against federal jurisdiction.
Three categories of federal subject matter jurisdiction:
1. federal question cases that arise under federal law
2. diversity cases
3. supplemental jurisdiction
State courts (anything not fed COAs) have general subject matter jurisdiction, which means that they can hear any cognizable claim
at all.
- (Except those over which the federal courts have exclusive subject matter jurisdiction admiralty, bankruptcy, patent
and copyright infringement, antitrust, and securities cases.)
Subject matter jurisdiction cannot be waived by the parties (rule 12) or the court, because for the court to exercise jurisdiction
over the case would be unconstitutional. Court would otherwise be acting unconstitutionally.
Likewise, parties cannot create subject matter jurisdiction by consenting to suit in the federal courts (or if one party never
makes a motion).
Court can/will/should dismiss sua sponte (court dismisses case on its own).
c) Well-pleaded Complaint rule (sets forth only a claim, unadorned by anticipated defenses or other extraneous material): P
cant anticipate a defense. The federal question must be integral to the Ps COA, as revealed by Ps complaint.
i) Louisville & Nashville RR Co. v. Mottley (pg. 215 F&P)
ii) Has the effect of funneling many questions of federal law out of federal courts and into state courts
iii) SMJ, based on a suit arising under the Constitution and the laws of the US, is established only when the s statement of
his own cause of action shows that it is based upon those federal laws or constitution.
(1) It is not enough for the to allege an anticipated to his cause of action and assert that is invalidated by some
provision of the US Constitutoin
Diversity
28 U.S.C 1332(a)-(c)
Two requirements for a diversity case:
1. must involve citizens of different States
2. amount in controversy must exceed $75,000
1. Claim cannot be dismissed for failure to meet AIC unless it appears with a legal certainty that the
claim is for less than the jurisdictional amount
2. Punitive damages are allowed to be included if reasonably recoverable
Purposes
1. eliminates home field advantage
a. federal court must apply the same law that the state court would apply
2. to protect outsiders
3. prevent prejudice for bigger cases where bias might matter bc worth more
Supplemental Jurisdiction
1. Joinder of claim over which there is no independent basis of subject matter jurisdiction
2. The efficiency goals of the Rules favor inclusion of related claims
3. logical relationship between claims the close connection between the original, jurisdictionally proper claim and the
added claim make them part of a single constitutional case
4. 28 U.S.C. 1367
a. 1367(a) giveth jurisdiction if claims forms part of the same case or controversy
i. can add non-subject matter jurisdiction claims to claims that have already been deemed federal
b. 1367(b) taketh away
i. If diversity claim, no subject matter jurisdiction over claims, if claims would be inconsistent with 1332:
Big 1. by Plaintiffs against persons made parties under Rule 14, 19, 20, 24
Picture 2. by persons proposed to be joined as Plaintiffs under Rule 19 we didnt study
3. when seeking to intervene as Plaintiffs under Rule 24 we didnt study
c. 1367(c) Court has discretion not to hear it(even if you make it past A and B)
d. 1367(d) Statute of Limitations is tolled while the claim is pending so that the party has an opportunity to file
suit in state court. Tolled until the case is dismissed or heard.
5. What is same case or controversy?
a. common nucleus of operative fact
6. Breakdown:
a. (a) original jurisdiction fed. ? or diversity in a trial court level
i. Now someone is trying to add more claims
1. Extra arrows not based on fed ? or diversity? Yes, the arrow can still be added so long as (b)
doesnt apply and the court decides to hear it
2. New arrows have to be so related to the claim w/i original jx that they form part of the same
case/controversy
3. This statute is letting in arrows not constitutionally allowed BUT the legislature says is not about
the new individual arrows, but rather, the entire case
ii. Test common nucleus of operative facts
1. Ask if the new arrow: Has fed question? Diversity? Or common nucleus?
iii. YOU NEED AN ANCHOR CLAIM. Other things can be attached.
b. (b) stems from when the anchor claim is ONLY because of diversity
i. Limits supplemental jurisdiction of diversity claims by ORIGINAL or joined or seeked to be a
ii. Basically, you cant just bootstrap
c. (c) when fed courts can decline sup jx
i. Note: novel = unsettled
d. To analysis jurisdiction claims, ask (1) is it original jurisdiction? And then (2) is there supplemental?
Removal
28 U.S.C. 1441(a)-(c);
1. The federal removal statutes allow the Defendant, after the Plaintiff has chosen a state court to second-guess that choice by
removing some types of cases from the state court to a federal court. has to file in federal court, then file a notice
a. Notice motion, it is a document that informs the ct & other parties that the is taking a step it is entitled to take
2. 1441(a) only authorizes removal of state court actions of which the district courts of the US have original jurisdiction
a. Can be removed if it could have brought before a federal court to begin with
b. Exception: 1441(b)(2) diversity case may not be removed if one of the Defendants is being sued in home state
i. b/c no local prejudice against Defendant
3. Amount in Controversy for Diversity Claim
a. 1446(c)(3)(A) information relating to the amount in controversy in the record of the State proceeding, or in
responses to discovery shall be treated as other paper under subsection (b)(3).
i. Thus, receipt of discovery answers or court filings that clarify the amount of damages being sought may
trigger a proper removal later in the case
4. There is only one lonely court that can host a removed action: the federal district court for the district and division embracing
the place where such action is pending in state court ( 1441(a)).
a. Therefore, Plaintiff still gets to choose the state where the action will be litigated.
b. Federal venue provisions do not apply to removed actions.
5. Sever-and-Remand ( 1441(c))
a. The general removal statute applies to cases, not claims. When the Defendant property removes a suit to federal
court, the Defendants entire suit is removed, including supplemental jurisdiction claims.
b. The federal court shall sever any claims not within the original or supplemental jurisdiction of the district court or a
claim made non-removable by statute.
General Personal Jurisdiction Jurisdiction arising when a persons continuous and systematic contacts with the forum state enable
the forum states courts to adjudicate a claim against the person, even when the claim is not related to the persons contacts with the
forum state (Far end of sliding spectrum)
at home
1) Goodyear
a. Facts: Brown's () son was killed in a bus accident in France caused by a defective tire manufactured by a foreign
subsidiary of Goodyear (), and Brown brought suit in North Carolina.
b. Issue: Are foreign subsidiaries of a US parent corporation amenable to suit in state court on claims unrelated to any
activity of the subsidiaries in the forum State?
c. Rule:
i. General Jurisdiction
1. A court may assert general jurisdiction over foreign corporations to hear any and all claims against
them when their affiliations with the State are so continuous and systematic as to render them
essentially at home in the forum State.
a. Continuous-and-systematic contacts test Goodyear subsidiaries do not have
contacts in NC and no affirmative action to have their tires shipped to NC
2. Interest in providing a forum for Plaintiff is not weighed (States interest in protecting citizens)
based on Defendants relationship to forum
a. only in specific jurisdiction could this potentially strengthen the case (fairness factors)
ii. Specific Jurisdiction
1. Depends on an affiliation between the forum and the underlying controversy, principally, activity
or an occurrence that takes place in the forum State and is therefore subject to the States
regulation
2. confined to adjudication of issues deriving from, or connected with, the very controversy that
establishes jurisdiction
a. Bus accident occurred in France and the tire alleged to have caused the accident was
manufactured and sold abroad no specific jurisdiction here (tires not sold in U.S.)
d. Holding: Court measured against wide gap between Perkins and Helicopteros. It held that Goodyear is in no sense
at home in North Carolina. No general jurisdiction, lacked continuous and systematic contacts w/in the state of
N.C. Court
2) Perkins
a. During WWII, company relocated from Philippines to Ohio and maintained an office there keeping company files
and supervising the company from the Ohio office. Yes General Jurisdiction
b. 100% of business operations take place in forum State
3) Helicopteros
a. US citizens died in helicopter crash in Peru instituted wrongful death action in Texas state court. The Columbian
corporation had no place of business in Texas and was not licensed to do business there. Purchased helicopters,
equipment, and training services for substantial sums in Texas No General Jurisdiction
i. Rule: mere purchases in the forum State, even if occurring at regular intervals are not enough to warrant a
States assertion of general jurisdiction
4) Traditional Bases for General Jurisdiction
a. domicile
b. principle place of business
c. consent
i. appointing an agent for service of process within the State
ii. conduct in litigation (passively, not objecting)
iii. by sanction of the court
iv. contracting to litigate only in a designated forum
1. not dispositive Court must decide whether to enforce contract
d. transient presence (tag jurisdiction) (Gotcha!)
i. Defendant was physically in the State when served with process. Burnham
1. Facts: was served when he went to visit kids in Ca. At the time he was undergoing a divorce
(from NJ). Ms. Burnham filed divorce in Cali custody of children
2. Issue: Is service of process enough to be constitutionally amenable to suit in Cali?
a. Yes, transient jdxn was constitutional notion of fair play and justice
b. Justice Brennan thinks Tagging gives minimum contact but also need fairness factors
(Prof Eichhorn and other justices do not agree)
e. Continuous or substantial in-state contacts
Challenging Personal Jurisdiction Defendants objection to the exercise of personal jurisdiction over him 12(b), (g), & (h)
1) Defendants first option is to appear in the original action at the beginning of the suit and object to the courts exercise of
jurisdiction over her. (Direct Attack)
a. special appearance (common law)
i. Defendant is allowed to appear before the court at the beginning of the action for the sole purpose of
challenging its power to exercise personal jurisdiction over her
ii. If the Defendant is careful to appear specially, she may litigate the jurisdictional question without
submitting to jurisdiction by the very act of appearing before the court.
iii. Defendant must exercise extreme care not to raise any other issue court may construe as a defense
on the merits waived her jurisdictional question
b. Under the FRCP 12(b)(2)
i. Defendant may appear before answering to the merits of the complaint and object to personal jurisdiction
ii. unlike common law Defendant may also raise other objections at the same time, without waiving the
objection to personal jurisdiction.
1. Defendant can make 12(b)(6) motion at the same time which clearly goes to the merits of the
suit in common law rule, court would hold that the objection to personal jurisdiction has been
waived
c. How the can appeal varies by jx. Some states make you go through the whole trial before you can appeal denial,
others let you appeal denial before moving on to trial.
2) The second option for the Defendant is to ignore the original suit entirely. very risky
a. Traditional procedure Plaintiff files a new action on the judgment in the state where the Defendant is
b. Some states The judgment creditor (Plaintiff) files a certified copy of the judgment in the state where the
Defendant is
i. Full Faith and Credit Clause requires the courts of each state to honor the judgments of other states by
allowing out-of-state creditors to use the court process to collect judgment
c. Exception the state where the Defendant is may always inquire as to whether the rendering state had jurisdiction
in the original action and refuse enforcement if it did not
i. Thus, if the Defendant ignores the first summons and complaint, he will still have an opportunity to protect
his property from being sold for execution of judgment.
1. Defendant can assert in the enforcement action in his State that the other State lacked personal
jurisdiction over him. Collateral Attack
2. Still, Full Faith and Credit Clause does not allow Defendant to reopen the merits of the underlying
action Therefore, if the Defendants state decides that the other State had personal jurisdiction
over Defendant, it will automatically enforce the default judgment
a. The default judgment will be enforceable in any state.
b. vice versa
i. If the Defendants state decides that the other State did not have personal
jurisdiction over Defandant Plaintiff is barred from relitigating the
jurisdiction issue in any other State Collateral Estoppel
1. Full Faith and Credit honoring the holding of the court that reached
the jurisdictional issue
d. Exception Defendant may not challenge personal jurisdiction in the enforcement action if he has already done so
in the original action. (This includes waiving the challenge in the original action by consent, arguing the merits, etc.)
i. Exception to the Exception Most states allow the Defendant, after raising the jurisdictional objection
and losing, to take the safer course of defending the merits and then appealing the decision on jurisdiction.
1. Few states Defendant waives the jurisdictional objection by defending the case on their merits.
common law special appearance
a. theory inconsistent for Defendant to appear and litigate in that court and at the same
time claim that the court lacks jurisdiction over her
Other Issues Affecting Choice of Court
Venue If a case is in the right federal/state court system, is it also in an appropriate court within that system?
1) Venue rules are meant to further restrict the places where the Plaintiff may choose to bring suit, to assure that suits are tried
in a place that bears some sensible relationship to the claims asserted or to the parties to the action.
2) States have their own venue rules the ones set out below (FRCP) are for the federal courts
3) BASICALLYrequire that the s sued in a district where the reside or where important events relevant to the suit took place
4) Purpose of venue:
a. Overall efficiency direct litigation to a place w/some relation to lawsuit
b. Added protection for defending party
1) Limits where can file suit
2) Domicile of is one of the acceptable venue choices (not based on constitutional consideration/lower than
constitutional fairness)
5) Waivable defense under 12(b)
a. Defendant waives by failing to raise it when she responds to the Plaintiffs complaint
6) Forum Selection Clauses in Contracts
a. parties agree in advance to a particular venue for suits that may arise between them
b. generally have been held enforceable in the federal courts, even if the selected venue would not be proper under this
statute
7) Choice of Law:
a. See below in venue transfer section.
8) Venue applies to WHOLE action (not just 1 claim)
9) 28 U.S.C. 1391
a. 1391(b) sets forth the basic options for venue in most federal cases; operative provision focuses on judicial
districts; not on states (If b1 doesnt apply b2 then b3 last)
1) (b)(1) subject to venue in district where any of the Defendants reside, if they all reside in the same
State
1. only use if all s in the same state
2) (b)(2) district where substantial part of the events occurred or where substantial part of property is
situated
1. Ex: products liability case (1) where the product was manufactured (2) location of injury
3) (b)(3) is available only if there is no district that is a proper venue under either (b)(1) or (b)(2)
1. must find a district in which any one of the Defendants is subject to personal jurisdiction
11) Removal Venue provisions in 1391 do not apply to actions removed to federal court!!!
a. Removal The proper venue for a removed action is the district and division embracing the place where such
action is pending in state court.
12) 1404 Change in Venue (challenging the place, not the law)
a. When the original venue was proper (a valid choice), but Defendant feels that venue is not fair or convenient and
wants to transfer to another district that would be equally proper
1) In the interest of justice and overall convenience, Defendant can request transfer
1. may be due to burden or expense
2. Defendant is an outsider
b. Where can cases be transferred?
1) 1404(a) to any district where suit might have been brought
c. The law of the current district will travel to the new venue!!!
1) Apply same substantive law transferor court would have applied (unless transfer was to enforce a
forum selection clause)
d. Atlantic Marine
1) Facts: Contract had a forum selection clause. Plaintiff brought suit in a federal district that was proper,
but was not the one named in the clause. Defendant moved to dismiss or transfer (in the alternative).
2) Issue: Does the forum selection clause make this a 1404 or 1406 case?
3) Holding: Court held that contracts are irrelevant to the question of an improper venue. Defendant can
move to transfer under 1404.
1. Court should give controlling weight to forum selection clause (should be enforced) but dont
necessarily have to enforce it.
14) Choice of Law: each state has own choice of law doctrine; which state rules govern?
a. Rule 1: federal ct in diversity action applies choice of of law rules of the state in which it sits
1) Rules dictate whole law applies
b. Rule 2: 1404(a) transfer, transfer is simply change of courtroom so dont change law applied
c. Rule 3: 1406 use transferee law bc not supposed to be there
Forum Non Conveniens If the court is technically proper but it is burdensome for the to litigate there, may the get a dismissal?
A federal procedural common law doctrine (not statutory)
allows court to dismiss bc burdensome for to litigate there even though the venue is technically proper
predates 1404 & 1406 (now we dont really have to use this because you can use 1404&1406 to transfer without dismissing)
still applies in certain situations
i.e. foreign parties, heavy burden, intersystem dismissals and refilings
if youre in state court, but it would make logical sense for it to be heard within another state
The Court may, in the exercise of its sound discretion dismiss the case. (Usually after this happens, cases settle)
Piper Aircraft Co v. Reyno
Facts: The estates of Scottish citizens brought a wrongful death suit against Piper a/c in Pennsylvania federal court as a
result of an airplane crash in Scotland.
Issue: May a court dismiss a case if an alternate forum has jurisdiction to hear the case and litigating in the present forum
would be overly burdensome to the and the court system, even though the law of the alternate forum is less favorable to
the ?
Holding: Yes, under the doctrine of FNC, a court may dismiss a case if there is an alternate forum with jurisdiction and if
proceeding forum would impose a heavy burden on the parties in the court.
o Court must consider various private and public interest factors in addition to the s choice of venue.
Analysis of factors: In this case, the private interests of the parties weigh in favor of trial in Scotland because most of the
evidence and witnesses are located in Scotland and the defendants could more easily add third parties and claims to the
lawsuit, which would not be feasible in Pennsylvania. Similarly, public interest factors also point to suit in Scotland
because the claims in Pennsylvania would involve application of Scottish law to Piper Aircraft (1) and Pennsylvania
law to Hartzell (parts manufacturer) (2), which would confuse to the jury. Additionally, Scotland had a strong interest
in the outcome of the litigation, as the real parties in Interest were Scottish and the events occurred within its airspace.
Because these private and public interests establish the Scottish courts as the more convenient forum, the district court
did not abuse its discretion in granting the dismissal.
What does the court consider?
o Factors
o There has to be a specific alternative forum
Balancing Test
o Private Interest Factors (between parties)
choice (master of the claim)
Access to evidence and ability to subpoena witnesses
ability to implead others
other factors creating burdens for the
If the isnt from the forum state/country
o Public Interest Factors Does the local have an interest in this particular suit
Familiarity with substantive law Does the Court have to study up on foreign law? Experts are
appointed to educate the court, but this process is burdensome and costs money.
floodgate of cases (ct congestion)
local interests need some interest in the situation if were going to use up rescources to litigate
Jury confusion unnecessary complexity for jurors b/c of multiple standards that they must apply to
the facts
****Difference in the substantive law cannot change the analysis (should not factor in), unless the alternative forum is so
inadequate or the cause of action is not recognized (no remedy) for the Plaintiff.
****Forum selection clauses in contracts only looks at the public interest factors and cannot look at private interest
(negotiated out)
Erie Doctrine: How does a party know whether state or federal law governs its DIVERSITY claim in federal court?
There is no general federal common law after Erie
Federal courts apply the substantive law of the forum state in which the federal court is sititng.
Any federal case by diversity or supplemental state law
o State law based on choice of law rules for state in which it sits
o Judges job is to apply the substantive law that would have bene applied in the state court had it been heard there
Res Judicata (claim preclusion): When is a party barred from re-litigating a specific claim?
Disallows efforts of a party to re-litigate events that have already been litigated and decided in a prior suit
claim preclusion an affirmative defense
o The says even if you prove it I have a separate and independent reason why I cant be held liable
Defendant could:
o answer complaint (must do an investigation of the claims) raising res judicata
o just make summary judgment or partial summary judgment (more efficient)
*this doctrine does have some variation by jx b/c this is a common law doctrine
ex: in some states a 12(b)(6) motion is considered a final jmt, in other states its not.
Collateral Estoppel (Issue Preclusion): When is a party barred from re-litigating a specific issue?
Dissects a lawsuit into its various issues and surgically removes from consideration any that have been properly decided in a
prior action
issue preclusion can be used by defendant as a defense, but can also be used by a Plaintiff (to not be required to provide
evidence on some issue at trial)
o How does a claimant (usu. a Plaintiff) use this? Does not have to re-litigate issues already proven can make a
partial summary judgment motion for issues based on collateral estoppel