I.

vJurisdiction and Choosing the Proper Court

A. Personal Jurisdiction
1. FRCP 4(k) P. 160
2. Traditional Basis of Personal Jurisdiction
a) Pennoyer v. Neff : No longer good law, not bound to stare decisis
(1) First use of the due process clause of the 14th amendment - prohibits state
and local governments from depriving persons of life, liberty, or property
without certain steps being taken to ensure fairness
(2) Becomes foundation for the “minimum contact” doctrine
(3) Judges are concerned with: Neff not getting enough notice before his
property was taken; the powers of states over other states; whether one state has
jurisdiction over citizens of another state; out of state defendants who do not
physically show up for the court
(4) Mainly, judges are worried about fraudulent cases which result in lose of
property due to default judgements against absentee defendants.
b) Full Faith and Credit - The act gave to all judgments the same effect in other
states which they had by law in the State where rendered.
c) Territorial Jurisdiction
(1) In Personam - court’s jurisdiction over a person or entity in an action
against that party
(2) In Rem - power only over the property and its disposition; the court lacks
power over any of the property owners.
(3) Quasi in Rem - jurisdiction that gives a court authority to render judgment
against a person but limits recovery in the action to the value of the property
owned by that person.
d) Transient Presence - exercising personal jurisdiction based on service on a
defendant who is simply passing through the state briefly
e) State Citizens - Domicile - the state where a person lives and intends to remain
for an indefinite period of time
f) Consent - one who voluntarily appears before a court is consenting to the
jurisdiction of that court
3. Modern Personal Jurisdiction
 a) International Shoe v. State of Washington: Out of state company hires in-state
employees to make sale orders, orders processed out of state. Court holds that
solicitation within a state by the agents of a foreign corporation plus some
additional activities there are sufficient to render the corporation amenable to suit
brought in the courts of the state to enforce an obligation arising out of its activities
there. Court states that the defendant must have “certain minimum contacts to not
offend the traditional notions of fair play and substantial justice.”
b) State sovereignty state’s assertion of personal jurisdiction required in-state
presence or consent, International Shoe is rooted in the same notion when a
defendant “benefits” from operating within a state they have an “obligation” to
submit to that court’s jurisdiction.
c) The only elements on which personal jurisdiction can be based - “Constitutional
Test:”
(1) Domicile
(2) Presence
(3) Consent
(4) Minimum Contacts
d) Specific Jurisdiction - cases involving forum contacts that are related to the
claims asserted in the action
e) General Jurisdiction - for suits involving only unrelated forum state contacts.
4. Specific Jurisdiction: Applying the Minimum Contacts Analysis
a) State Long Arm Statutes - Long Arm Statutes - pass through state statutes to haul
back defendants (i.e. if you can’t reach the defendant you can publish it in the
newspaper to try to contact them).
(1) NY - p. 45 Rule 302(a) - The Act provides in Section 1.03(a)(1) for
personal jurisdiction if a defendant has transacted any business in the forum
state and the claim arises out of that business. Section 1.03(a)(2) authorizes
jurisdiction if the claim arises directly out of a contract to supply services or
things in the forum state. Section 1.03(a)(3) provides: "A court may exercise
personal jurisdiction over a person, who acts directly or by an agent, as to a
[cause of action] [claim for relief] arising from a person's...causing tortious
injury by an act or omission in this state." Section 1.03(a)(4) allows the plaintiff
to sue in the forum state if he suffered tortious injury in the forum state from an
out-of-state act or omission and if the defendant does business in the forum state
or "derives substantial revenue from goods or services used or consumed in" the
forum state.
(2) CA -

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b) Minimum Contacts
(1) Spectrum of Contacts
(a) Not enough contact - No Jurisdicition
i) No Contact
ii) Single. Isolated, Casual, Random
(b) Specific Jurisdicition
i) Single, Significant, Contact / Act
ii) Continuous and Systematic
(c) General Jurisdiction
i) Substantial and Pervasive
c) World-Wide Volkswagen: Family purchased a car in New York and were in a car
accident in Oklahoma which caused a fire because of a defect. Due to the injuries,
the family sued the New York company out of Oklahoma as well as manufacturers
and distributors. Court held there was no jurisdiction over the NY retailer, a single
isolated incident does not constitute jurisdiction, especially because they did not
advertise to the OK market. The international companies however could be hailed
into court.
d) Minimum Contacts after World-Wide Volkswagen - foreseeability of the car
ending up in OK was not enough; more significant is the defendant’s conduct and
connection with the state.
e) Justice Brennan’s Dissent - Justice Brennan focuses more fairness and
reasonableness. He brings up the state’s interest in hearing the case, and questions
whether in this day and age, trying the case in OK would really be that inconvenient
to the defendant. He believes jurisdiction may be justified even with less contacts.
f) Kulko v. Superior Court - a divorced father has not availed himself to a state’s
jurisdiction just because his children live in that state with their mother.
g) Burger King Corp. v. Rudzewicz: A Michigan citizen opens a BK in Michigan
with the franchise located in FL. The man fails to pay his franchise fees and is paid
in FL. The only physical contact with FL is a one time training session there. The
court holds that FL has jurisdiction over the man. The court reasons that where a
defendant “deliberately” has engaged in significant activities within a state, or has
created “continuous obligations” between himself and residents of the forum, he
manifestly has availed himself of the privilege of conducting business there.
Because he is shielded by the “benefits and protections’ of that state law’s it is not
unreasonable to require him to submit to the burdens of litigation there.
 (1) After establishing minimum contacts, the courts may evaluate:
(a) the burden on the defendant
(b) the forum state’s interest in adjudicating the dispute
(c) the plaintiff’s interest in obtaining convenient and effective relief
(d) the interstate judicial system’s interest in obtaining the most
efficient resolution of controversies; and
(e) the shared interest of the several states in furthering fundamental
substantive social policies
h) Contract-Plus Analysis - Contracts are not sufficient to establish jurisdiction, they
need to satisfy more elements according to Justice Brennan such as those above.
i) Defendants Burden of Proof - “Where the defendant who purposefully has directed
his activities at forum residents seeks to defeat jurisdiction, he must present a
compelling case that the presence of some other considerations would render
jurisdiction unreasonable.”
j) Asahi Metal Industry Co.: Man is in a motorcycle accident and his wife is killed
allegedly due to a defective tire, tube, and sealant. He sues the taiwanese
manufacturer of the tube who in turn files a cross-claim indemnifying Asahi (a
japanese corporation) the manufacturer of the tube’s valve. All suits were settled
and dismissed except the cross-claim. Jurisdiction is proper where the contacts
proximately result from actions by the defendant himself that create a ‘substantial
connection’ with the forum state. Mere awareness on the part of a foreign defendant
that the components it manufactured, sold, and delivered outside the U.S. would
reach the forum state in the stream of commerce does not constitute minimum
contacts.
5. Personal Jurisdiction Based on Internet Contacts
a) Inset Systems, Inc. v. Instruction Set, Inc: The plaintiff trademarked the name
Inset, later on the defendant started using the web address Inset.com and the toll-
free number 1-800-US-Inset. The plaintiff is out of Connecticut while the defendant
is out of Massachusetts. The court holds that because the defendant has directed its
advertising activities via the internet and its toll-free number toward not only the
state of Connecticut but to all states, it has purposefully availed itself of the
privilege of doing business with Connecticut.
(1) No longer good, law, if anything it is the outer most limits of internet
companies availing themselves because they are viewable world wide.
b) Zippo Manufacturing Co. v. Zippo Dot Com, Inc.: Plaintiff (PA) has trademarked
their name, defendant(CA) has obtained exclusive rights to use variations of the
domain name under .com, .net, and zipponews.com. Court states that a passive

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 website that does little more than make information available to those who are
interested in it is not grounds for the exercise of personal jurisdiction. However, in
this case the court held that the defendant did purposefully avail himself because he
contracted with 3,000 individuals and seven internet access providers in PA. Their
website consists of selling passwords to subscribers which they have 3k of in PA.
c) Sliding -Scale - actively doing business, passive, and interactive sites.
d) Young v. New Haven Advocate: An out of state news company(CT) writts a bad
article about a jail warden(VA) calling him among other things, racist. Court held
that they did not have jurisdiction over News company because they did not
manifest an intent to aim their websites or the posted articles at a VA audience.
Something more than posting and accessibility by another state is needed to show
that their activities were directed toward that state.
6. Transient Jurisdiction
a) Burnham v. Superior Court: Plaintiff and Defendant decided to separate and wife
moved to CA. They agreed to file a divorce for irreconcilable differences, upon
leaving however, husband filed for divorce under abandonment so she would be
entitled to less. Husband visited CA on some business and visited the children,
where he was then served with the complaint. He then made a “special appearance”
to the court to quash the service of process. Court states that the most firmly
established principles of personal jurisdiction is that the courts of a state have
jurisdiction over nonresidents who are physically present in the state. The state
could retain jurisdiction to enter judgment against him, no matter how fleeting the
visit. Other judges and the husband try to determine whether or not he has the
minimum contacts, however the majority argue that the standard of minimum
contacts was developed by analogy to “physical presence,” and it would be perverse
to say it could be used in place of.
7. Consent
a) Carnival Cruise Lines, Inc. v. Shute: Lady from WA is hurt on a cruise and sues
the cruise line in WA. The company however states that WA has no jurisdiction
over them because they agreed through the purchase of the ticket that any suits
would be brought in FL (very inconvenient to the plaintiffs) stated in a forum
selection clause. Court states that in general, “a freely negotiated private
international agreement, unaffected by fraud, undue influence, or overweening
bargaining power, such as that involved here, should be given full effect.
(1) Further the court reasons that the cruise line has a special interest in
limiting its forum because they may be hailed to many different fora due to their
diverse guests.
b) Consent in other Contexts - Appointing of an agent to receive process in a state
may give consent to jurisdiction in some states. Registering to do business in
 another state is not sufficient for jurisdiction for an out-of-state event. Some states
even hold that agents and business registrations together and nothing more is still
insufficient to hail yourself to that state’s jurisdiction.
c) Consent by Estoppel - If a defendant shows up to court to object to jurisdiction,
he has availed himself to that jurisdiction. They can however challenge the
jurisdictional ruling on appeal from the final judgment. If they are interested in
avoiding that possibility they would have to ignore the proceedings altogether, and
collaterally attack any ensuing judgment when the plaintiff seeks to enforce it.
B. Subject Matter Jurisdiction
1. Diversity Jurisdiction: 28 U.S.C Sec. 1332

a) The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between-

(1) citizens of different states

(2) citizens of a state and citizens or subjects of a foreign state

(3) citizens of different states and in which citizens or subjects of a foreign state are
additional parties; and

(4) a foreign state defined in section 1603(a) of this title, as plaintiff and citizens of
a state or of different states.

b) For the purposes of this section, section 1335, and section 1441, an alien admitted to the
U.S. for permanent residence shall be deemed a citizen of the state in which such alien is
domiciled.
c) (e) the word “states”, as used in this section, includes the territories, the District of
Columbia, and the Commonwealth of Puerto Rico.

d) Diversity of Citizenship Requirement

(1) Mas v. Perry: Landlord(LA) watched his tenants, a wife(MI) and her
husband (France), through to sided mirrors in their bathroom and bedroom.
Prior to the incident the two worked at LSU, they married in Mississippi, and
returned to LA to work at LSU for the next two years, they then moved to IL
then back to LA when the incident happened.
(a) To be a citizen of a State within sec. 1332, a natural person must
be both a citizen of the U.S., and a domiciliary of that State. Residence in a
state is not sufficient. A person’s domicile is the place of “his true, fixed,
and permanent home and principal establishment, and to which he has
the intention of returning whenever he is absent therefrom”

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 (b) A change of domicile may be effected only by a combination of
two elements:
i) taking up residence in a different domicile with
ii) the intention to remain there.
(c) Even if you move and do not intend to return to your domicile,
until one acquires a new domicile, one remains a domiciliary of their
former state.
(2) Determining Citizenship
(a) Individuals - the key to determining citizenship is to identify their
respective states of domicile.
(b) Corporations - A corporation is deemed a citizen of the state in
which it is incorporated and the state where it has its principal place of
business (HQ).
(3) Unincorporated Associations - Partnerships, LLCs, and labor unions are
treated as a collection of individuals. Citizenship of such entities tracks the
citizenship of all constituent members of the organization.
(4) Legal Representatives - deemed citizens only of the same state as those
they represent.
(5) Class Actions - Only the citizenship of the named class representatives
are to be considered, not the citizenship of the unnamed class members.
(6) Complete Diversity Requirement - where citizens of the same state
appear on both sides of a dispute, diversity jurisdiction is unavailable.
(a) Time-of-filing rule: subsequent changes in citizenship by the
parties that result in destruction of complete diversity do not undermine
diversity jurisdiction so long as jurisdiction was proper at the time the
action was filed.
(b) Collusive Joinder - Efforts to manipulate the citizenship of the
parties in an effort to create (not destroy) diversity by “improperly or
collusively” naming parties in the action are prohibited under sec. 1359.
(c) Domestic Relations Exception - Federal courts will not hear
family cases such as divorce, spousal support, or child custody decrees.
(d) Probate Matters Exception - Federal courts may not probate or
annul a will, administer a decedent’s estate, or dispose of property that is in
the custody of a probate court.
 e) Alienage Jurisdiction - aliens don’t destroy jurisdiction, an alien plaintiff alone
cannot file suit in federal court, but an alien who is an additional party with another
plaintiff can. U.S. plaintiff can however sue an alien w/o additional parties.
(1) Permanent residents can’t sue aliens on their own but as defendants, and
as additional parties to a plaintiff, they are considered citizens of the state they
live in.
(2) Stateless persons and entities - Stateless persons as parties will destroy
diversity and undermine diversity jurisdiction. (non-US citizens, citizens
domiciled abroad, tribes).
f) Amount in Controversy Requirement - must exceed $75,000.
(1) Del Vecchio v. Conseco, Inc.: Man is defrauded by an insurance company
when he switches his policy from a $5k policy to a $10k policy. Court states
that according to FRCP 23 - multiple persons’ claims cannot be combined to
reach the minimum amount in controversy. Court held that considering the
nature of the claim and the amount of potential compensatory damage awards
on that claim, a punitive damages recovery if rendered for the amount necessary
to exceed $75k would be excessive therefore he does not satisfy the amount in
controversy. (Although plaintiff’s claim asserts damages of $75k, the court
threw out the case because they did not believe that amount was realistic).
(2) Aggregation - One plaintiff may add up all their claims against one
defendant, but not add up various claims against various defendant. Joint
liability claims are also allowed. Two parties with one claim are allowed but not
two parties with different claims against the same defendant.
2. Federal Question Jurisdiction: 28 U.S.C Sec. 1331 - The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S.

a) Constitutional Standard
(1) Osborn v. Bank of the United States: The state of Ohio is suing the Bank
of the United States for failure to pay state taxes (in state court), the Bank
removed to federal court. The court holds that because the Bank was created by
the federal government, the State’s right to sue arises from this law. Congress
many confer jurisdiction whenever a federal question forms an
“ingredient” of the claim.
b) Well Pleaded Complaint Rule
(1) Louisville & Nashville Railroad Co. v. Mottley: A husband and wife were
granted free passes for life on a train after an injury. Later a bill was passed
prohibiting such contracts. The court holds that there is no federal question
jurisdiction because “a suit arises under the constitution and laws of the U.S.
only when the plaintiff’s statement of his own cause of action shows that it is

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 based upon those laws or that Constitution. It is not enough that the plaintiff
alleges some anticipated defense to his cause of action.”
(a) To qualify for statutory federal question jurisdiction, the presence
of a federal question must appear in the plaintiff’s presentation of its case
in the context of a “well-pleaded” complaint, one that limits itself to a
statement of its own cause of action.
(2) Courts do not permit the plaintiff to manipulate federal jurisdiction
through “artful pleading,” which is efforts to avoid or obtain jurisdiction. It
occurs when a plaintiff asserting state law claims attempts to anticipate and
refute federal law defenses in the complaint as a means of making the claim
appear to raise a federal question.
(3) The presentation of federal question counterclaims asserted in response to
the initial complaint will not provide a basis for asserting federal question
jurisdiction over the original claims.
(4) Grable & Sons Metal Prods., Inc. v. Darue Engineering & Mfg.: Issue
arises out of a quiet-title obtained at a federal tax sale. The issue being brought
is a state claim, however the defendant removed to federal court because
validity of his quiet-title depends on the analysis of a federal law. As a result,
the court holds that federal question jurisdiction will lie over state-law claims
that implicate significant federal issues. (Even if the issues were pointed out by
the defendant, if the issues are significant enough that analysis of federal law is
inevitable in the claim, federal jurisdiction is appropriate).Absolute, necessary
and extensive
(a) The Grable Standard - The key question is “wheter a state-law
claim necessarily raises a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing
any congress approved balance of federal and state judicial
responsibilities?”
3. Supplemental Jurisdiction
a) Original Jurisdiction - claims that qualify for jurisdiction under these statutes
may be brought initially in federal court, independent of any other claims.
b) Supplemental - a non-qualifying claim in conjunction with a separate claim that
does fall within the original jurisdiction of the federal courts, piggy-backs off of the
original claim to extend jurisdiction.
c) The Constitutional Standard
(1) United Mine Workers of America v. Gibbs: A mineworker that is hired
for a project is harassed by unions to the point where his project is shut down
and he is black listed from other companies. He brings a claims for violations of
 sec. 303 of the Labor Management Relations Act (fed) and of the common law
of Tennessee. The court states that the relationship between the federal and state
claim permits the conclusion that the entire action comprises but one
constitutional “case.” The state and federal claims must derive from a
common nucleus of operative fact.
(a) Supplemental claims may be refused if they are likely to confuse
the jury.
(b) Granting pendant jurisdiction is discretionary.
d) Modern Supplemental Jurisdiction Doctrine
(1) Supplemental Jurisdiction: 28 U.S.C. Sec. 1367(a)

(a) Except as provided in subsection (b) and (c) or as expressly provided

otherwise by Federal statute, in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over
all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of
the U.S. Constitution. Such supplemental jurisdiction shall include claims that
involve the joinder or intervention of third parties.
(b) In any civil action of which the district courts have original jurisdiction
founded solely on section 1332 of this title, the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs against
persons made parties under Rule 14, 19 20, or 24 of the FRCP, or over claims by
persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking
to intervene as plaintiffs under Rule 24 of such rules, when exercising
supplemental jurisdiction over such claims would be inconsistent with the
jurisdictional requirements of sec. 1332.

i) *Note the first four are about barring plaintiff’s claims against joined
parties (under rule 14, 19, 20, or 24), whereas the last two are about
barring joined plaintiffs’ (under rule 19 and 24) claims against other
parties. What about joined plaintiffs’ (joined under rule 20 or 23)
claims?
(c) The district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if-

i) the claim raises a novel or complex issue of a State law,

ii) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,

iii) the district court has dismissed all claims over which it has original
jurisdiction, or

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 iv) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

4. Removal Jurisdiction - plaintiffs have the option of filing in state courts however
defendants may remove the entire case into federal court, provided a series of
requirements are met.
a) General Standards of Removability
(1) Actions Removable Generally: 28 U.S.C Sec 1441

(a) Any civil action brought in a State court of which the district courts of
the U.S. have original jurisdiction, may be removed by the defendant(s), to the
district court of the U.S. for the district and division embracing the place where
such action is pending.
(b) Any civil action of which the district courts have original jurisdiction
founded on a claim or right arising under the Constitution, treaties or laws of the
U.S. shall be removable without regard to the citizenship or residence of the
parties. Any other such action shall be removable only if none of the parties in
interest properly joined and served as defendants is a citizen of the State in which
the action is brought. (forum-state defendant rule: so even if diversity is
present, defendants can’t remove if they are citizens of the state the suit
was filed in)
(c) Whenever a separate and independent claim or cause of action within the
jurisdiction conferred by section 1331 of this title is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be
removed and the district court may determine all issues therein, or, in its
discretion, may remand all matters in which State law predominates.

(2) Hays v. Brown Cave LLP: A man sues his lawyer for malpractice (state
claim) after losing a criminal case filed in federal court. His lawyer (defendant)
tries to remove to federal court because the federal suit would have to be
analyzed to prove malpractice. Court holds that a case filed in state court
under state law cannot be removed to federal court on the basis that there
are defenses based on federal law. *Policy: If removal were possible on the
basis of a federal defense, defendants would have the exclusive choice of forum
in any case in which a nonfrivolous federal defense could be pleaded.
(3) Removal is based on plaintiff’s claims not defendants counter or cross-
claims.
(4) Plaintiffs’ post-removal reduction of its claims below the requisite
jurisdictional amount do not deprive the federal court of jurisdiction.
(5) If a non-diverse party as a codefendant is only there to defeat
removability, the “sham defendant” may be ignored and the case removed, but
 only if the defendant was fraudulently joined, i.e. there is no possible recovery
from them.
b) Removal and Remand Procedures
(1) Only defendants can remove a case to federal court by filing a notice of
removal. Doing so automatically removes the case to federal court. Removal
must be done within 30 days of receipt of service of the complaint or within 30
days of when the case becomes removable (after plaintiff amendments).
Continuing with the case in state court waives removal.
(2) Plaintiffs then have the opportunity to remand to state court by filing a
motion to remand within 30 days after the filing of notice of removal or right to
remand is waived. Grants for remands based on defective removal or lack of
jurisdiction are not appealable.
(3) Class Action Fairness Act extends federal jurisdiction to suits over
$5million.
C. Venue
1. The General Venue Statue: 28 U.S.C Sec. 1391

a) A civil action wherein jurisdiction is founded only on diversity of citizenship may,

except as otherwise provided by law, be brought only in (1) a judicial district where any
defendant resides ,if all defendants reside in the same State, (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is situated, or (3) a judicial district in which
any defendant is subject to personal jurisdiction at the time the action is commenced, if
there is no district in which the action may otherwise be brought.

b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may,
except as otherwise provided by law, be brought only in (1) a judicial district where any
defendant resides ,if all defendants reside in the same State, (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is situated, or (3) a judicial district in which
any defendant may be found, if there is no district in which the action may otherwise be
brought.

c) For purposes of venue under this chapter, a defendant that is a corporation shall be
deemed to reside in any judicial district in which it is a subject to personal jurisdiction at
the time the action is commenced. In a State which has more than one judicial district and
in which a defendant... is subject to personal jurisdiction..., such corporation shall be
deemed to reside in any district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate state, and if there is no such
district, the corporation shall be deemed to reside in the district within which it has the most
significant contacts.
d) An alien may be sued in any district.

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 e) Power Paragon, Inc v. Precision Technology USA, Inc.: Plaintiff manufactured a
Motor Controller for an Aircraft and was to deliver it to the defendant. Suit was
filed in the Eastern district where the product was delivered. Defendant is in
Western district and alleges improper venue. Court states venue is proper in any
“judicial district in which a substantial part of the events occurred,” in which a
substantial part of property that is the subject of the action is situated or in any
district where a defendant resides if all defendants reside in the same state.
(1) It is not important to identify which venue has the most contacts, just
whether a substantial part of the events occurred in the chosen venue.
(2) Substantial contact with a district by the defendant may deem it
appropriate.
(3) Fall back provisions - (a)(3) & (b)(3) permit venue in any district having
personal jurisdiction over any defendant only if “there is not district in which
the action may otherwise be brought.”
f) The Important Points:
(1) The venue statute is not designed to give you one venue, rather several
possible venues may come out of an analysis under Sec. 1391.
(2) Motion to dismiss for improper venue moves the venue.
2. Forum Non Conveniens
a) Piper Aircraft Co. v. Reyno: A plane crash in Scotland is tried in the U.S. against
the aircraft manufacturer (PA) and the propeller manufacturer (OH). The wreckage
remains in England. The court establishes a balancing test and states that a
plaintiff’s choice should rarely be disturbed. However, when an alternative
forum has jurisdiction, and trial in the chosen forum would establish
oppressiveness and vexation to a defendant out of all proportion to plaintiff’s
convenience,” or when the chosen forum is inappropriate because of
considerations affecting the court’s own administrative and legal problems.”
the court may, in the exercise of its sound discretion, dismiss the case. Factors:
(1) relative ease of access to sources of proof; availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of premises, if view would be appropriate
to the action; and other practical problems making a case easy, quick, and
inexpensive.
(2) There must be an adequate alternative forum before dismissal is made,
dismissal is made only on the condition that the defendant will not contest the
ability of the subsequent court to hear the case.
D. The Erie Doctrine
 1. Applicable Law Prior to Erie
a) Swift v. Tyson:
2. Establishing the Erie Doctrine
E. Review Exercises on Personal Jurisdiction
II. Pleading
A. Functions
B. The Complaint
1.FRCP 8(a). General Rules of Pleading: Claim for Relief.
a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short or plain statement of the grounds for the court’s jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;
(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.
2. Swierkiewicz v. Sorema N.A.:
3. Bell Atlantic Corp. v. Towmbly:
4. Pleading under Rule 8(a)(2)
5. Erickson v. Pardus - Two weeks after Twombly the court reaffirmed notice pleading.
Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Specific facts are not necessary; the statement need only
“give the defendant fair notice of what the... claim is and the grounds upon which it
rests.”
6. Ashcroft v. Iqbal - Heightened pleading requirement, set floor higher than in
Swierkewicz
a) Twiqbal test, no conclusory legal statements are taken as true, only evidentiary
facts can be taken as true and together they establish the plausibility of a claim.
b) Spectrum of pleading: 1) Specificity of factual aligations 2) amount of evidence
3) transusbstantive pleading standards
7. Plaintiff’s Pleading Obligations - the pleading burden is limited to those matters with
the plaintiff will bear the burden of introducing evidence at trial.

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 8. Statutorily-Imposed Heightened Pleading - transubstantive pleading standard - some
statutes call for a heightened level of facts when making a claim, especially for
complex claims
9. Pleading Alternate and Inconsistent Allegations - federal rules permit plaintiffs to
include multiple allegations that assert alternate grounds for relief based on a single set
of facts and also allow plaintiffs to plead inconsistent allegations.
a) FRCP 8(d). Pleading To Be Considered and Direct; Consistency.
(1) (1) In General. Each allegation must be simple, concise, and direct. No
technical form is required.
(2) (2) Alternative Statements of a Claim or Defense. A party may set out 2
or more statements of a claim or defense alternately or hypothetically, either in
a single count or defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.
(3) (3) Inconsistent Claims or Defenses. A party may state as many separate
claims or defenses as it has, regardless of consistency.
C. Serving the Complaint
1. FRCP 4(e): Serving and Individual within a Judicial District of the United States
a) (e) Serving an Individual Within A judicial District of the United States. - Unless
federal law provides otherwise, an individual - other than a minor, an incompetent
person, or a person whose waiver has been filed - may be served in a judicial
district of the United States by:
(1) following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(a) delivering a copy of the summons and of the complaint to the
individual personally;
(b) leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides there; or
(c) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
2. Rio Properties, Inc. v. Rio International Interlink:
a) The requirements of service under Rule 4(e) do not constitute a hierarchy of all
the possible avenues that must be exhausted before petitioning for an alternative
service of process.
 b) Rule 4(f) is satisfied when a plaintiff can demonstrate that the facts and
circumstances of the present case necessitated the district court’s intervention in
allowing an alternative service of process. However, to obtain alternative, the
plaintiff must first petition the court.
3. Rule 4(d) sets forth a number of detailed requirements that plaintiffs must satisfy to
provide a defendant with proper notice of the action and a request that the defendant
waive formal service of the summons and complaint. ---> to encourage defendants to
accept service by mail they are allowed more time to respond - 60 days instead of 21.
D. Responding to the Complaint
1. Defenses and Objections Under Rule 12 (and motions) - FRCP 12(b). Defenses
and Objections - How Presented (may be raised by a defendant as an objection or
defense in response to a complaint via motion or answer)
a) (b) How to Present Defenses. Every defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is required. But a party may
assert the following defenses by motion:
(1) lack of subject-matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue;
(4) insufficient process; (technical defect in the content of the summons)
(5) insufficient service of process; (process was not served in compliance
with requirements of Rule 4)
(6) failure to state a claim upon which relief can be granted; and (not enough
detail or even if everything is true, no legal liability attaches) (usually given the
opportunity to amend complaint before dismissal)
(7) failure to join a party under Rule 19
(a) ** (2)-(5) are waivable, meaning if they are not raised in the initial
response to the complaint either through pre-answer motion or in the
answer, they are waived and may not be raised subsequently)
b) Rule 12(c). Motion for Judgment on the Pleadings. - once P files a complaint and
D files and answer, either party may move for a judgment on the pleadings, in the
movant’s view the information contained on the face of the pleadings alone reveals
the movant is entitled to a judgment as a matter of law.
c) Rule 12(e). Motion for a More Definite Statement. - If a defendant believes the
complaint is too vague or ambiguous that it cannot reasonably be required to frame
a responsive pleading.

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 d) Rule 12(f). Motion to Strike. - appropriate when a party believes that a pleading
contains an “insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.”
e) Rule 12(g). - Allows a party to join all motions together instead of having to do
them separately. Anything not motioned for now can’t be motioned for later except
(1)(6)
f) Rule 12(h)(1). - 12(b)(2)-(5) are waived as motions and answers if not brought up
in an initial motion (if a motion is brought up), if no motion is brought you can still
put it in your answer or amendment. Use it or lose it!
2. The Answer
a) Components of an Answer under the Federal Rules
(1) Denials & Admissions. Under Rule 8(b) a defendant must admit or deny
all factual allegations of the complaint.
(2) Defenses. A defendant may also include any defenses it intends to raise,
including the defenses found in Rule 12(b) that have been waived and any
affirmative defenses such as those listed in Rule 8(c)
b) FRCP 8(b)
(1) (b) In General. In responding to a pleading, a party must:
(a) state in short and plain terms its defenses to each claim asserted
against it; and
(b) admit or deny the allegations asserted against it by an opposing
party.
(2) Denials - Responding to the Substance. A denial must fairly respond to
the substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to deny
all the allegations of a pleading - including the jurisdictional grounds - may do
so by a general denial. A party that does not intend to deny all the allegations
must either specifically deny designated allegations or generally deny all except
those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to deny
only part of an allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or
information sufficient to form a belief about the truth of an allegation must so
state, and the statement has the effect of a denial.
 (6) Effect of Failing to Deny. An allegation - other than one relating to the
amount of damages - is admitted if a responsive pleading is required and the
allegation is not denied. If a responsive pleading is not required, an allegation is
considered denied or avoided.
c) Zielinski v. Philadelphia Piers, Inc.
(1) A blanket denial should not be made to all factual allegations, only the
allegations which are truly factually wrong can be denied while the rest are
admitted to, otherwise improper denial of factual allegations constitutes and
admission.
(2) Equitable estoppel - doctrine applied to prevent a party from taking
advantage of the statute of limitations where the plaintiff has been misled by
conduct of such party.
(3) Denials for lack of information is acceptable if done in good faith.
(4) Improper forms of denial - negative pregnant “I deny that I hit P’s car”
affirmative defenses “I deny that I did A, B, and C”
(5) Affirmative Defenses - those that admit the allegations of the complaint
but suggest some other reason why there is no right of recovery, and those that
concern allegations outside of the plaintiff’s prima facie case that the defendant
therefore cannot raise by a simple denial in the answer (i.e. contributory
negligence)
(6) The answer to the counter claim and the reply - plaintiffs have to answer
to counterclaims under the same rules as defendants, however when it comes to
affirmative defenses the plaintiff can reply but does not have to and its not
considered an admission if they don’t reply.
E. Amendment and Relation Back
1. Rule 15(a). Amendments Before Trial. (sets forth the conditions under which a party’s
pleadings may be amended before trial)
a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as
a matter of course within:
(a) 21 days after serving it, or
(b) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.

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 (2) Other Amendments. In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The courts
should freely give leave when justice so requires.
(3) Time to Responds. Unless the court orders otherwise, any required
response to an amended pleading must be made within the time remaining to
respond to the original pleading within 15 days after service of the amended
pleading, whichever is later.
2. Amendments for motions can be made at the court’s discretion, in the spirit of
leniency, if they are done in good faith and if they are not prejudicial to the opposing
party.
3. Beeck v. Aquaslide
a) Court allowed manufacturer to amend his answer after the required because his
original answer was not done in bad faith, judge claims “no prejudice” to the
plaintiff and undue delay as he probably has a claim for fraud or contract.
b) Leave to amend should be freely given when justice so requires, in the absence of
any apparent or declared reason such as undue dealy, bad faith, or dilatory motive
on the part of the movant.
4. Rule 15 Relation Back of Amendments - Relates to federal question jurisdiction
because states have their own relation back rules.
a) (c) When an Amendment Relates Back. An amendment to a pleading relates back
to the date of the original pleading when:
(1) the law that provides the applicable statute of limitations allows relation
back;
(2) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out - or attempted to be set out - in the original
pleading; or
(3) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and complaint, the party
to be brought in by amendment:
(a) received such notice of the action that it will not be prejudiced to
defending on the merits; and
(b) knew or should have known that the action would have been
brought against it, but for a mistake concerning the property party’s
identity.
5. Krupski v. Costa Crociere, S.p.A
 a) In order to be able to change a party and have it relate back, the plaintiff must
have made a mistake in naming the wrong party, the true party is connected to the
set of facts in question, and the true defendant must have had notice within 120
days.
b) Deciding whether it relates back has to do with what the defendant knows and
not so much with what the plaintiff knows.
6. Worthington v. Wilson
a) It is not considered a mistake when you name a defendant as unknown and it
cannot relate back once the identity is discovered. It is correcting a lack of
knowledge when amendment is requested.
7. Supplemental Pleadings under Rule 15(d)
a) when alterations need to be made to a pleading to reflect events taking place after
the pleading was filed, provided the court has given permission, if the alterations
pertain to pre-filing matters (i.e. adding a retaliation claim for an event after the
filing of the complaint for a cause of action for discrimination).
F. Ensuring Truthful Allegations
1. Rule 11. Signings Pleadings, Motions and Other Papers; Representations to the Court;
Sanctions. (attorneys are required to certify or verify the truthfulness of the pleadings
they file)
a) Signature. Every pleading, written motion, and other paper must be signed by at
least one attorney of record in the attorney’s name - or by a party personally if the
party is unrepresented.
b) Representations to the Court. By presenting to the court a pleading, written
motion ,or other paper - whether by signing, filing, submitting, or later advocation it
- an attorney or unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, r needlessly increase the cost of litigation; motivation
(2) the claims, defenses, and other legal contentions are warranted by existing
law or by a non-frivolous argument for extending, modifying, or reversing
existing law or establishing new law; soundness of legal arguments
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and basis for factual allegations

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 (4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information. basis for denials
c) ...(d) Inapplicability to Discovery. This rule does not apply to disclosures and
discovery requests, responses, objections, and motions under Rule 26 through 37.
d) (c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the
court determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule or
is responsible for the violation. Absent exceptional circumstances, a law firm
must be held jointly responsible for a violation committed by its partner,
associate, or employ
(2) Motion for Sanctions. A motion for sanctions must be made separately
from any
G. Review
III. Joinder
A. Claims
B. Parties
C. Combining Jurisdiction and Joinder
IV. Discovery
A. Intro
B. Scope
C. Devices
D. Compulsion and Disputes
E. Review on Discovery
V. Disposition Without Trial
A. The Context: Costs of Litigation
B. Default Judgment
C. Judgment on the Pleadings
D. Dismissal
E. The Pretrial Conference, Settlement, and ADR
 F. Summary Judgement
G. Review Exercise: Summary Judgment Hearing

Joinder Notes (Not integrated into outline yet)

IV. Joinder
A. Claims 523-36
1. Original Claims: FRCP 18(a): Joinder of Claims. 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.
a) Rule 18(a) and all the joinder rules are only pleading rules.
b) Pleading rules may allow the claims to be joined, separate subject matter
jurisdiction determinations will have to be made for each claim to see if the court
has the authority to hear those claims.
2. Counterclaims: FRCP 13(a)&(b): Counterclaim and Crossclaim:
a) Compulsory Claim.
(1) In General. A pleading must state as a counterclaim any claim that - at the
time of its service - the pleader has against an opposing party if the claim:
(a) arises out of the transaction or occurrence that is the subject matter of the
opposing party’s claim; and
(b) does not require adding another party over whom the court cannot
acquire jurisdiction
(c) Exceptions. The pleader need not state the claim if:
i) when the action was commenced, the claim was the subject of
another pending action; or
ii) the opposing party sued on its claim by attachment or other process
that did not establish personal jurisdiction over the pleader on that
claim, and the pleader does not assert any counterclaim under this
rule.

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 3. Permissive Counterclaim. A pleading may state as a counterclaim against an
opposing party any claim that is not compulsory.
a) If the compulsory counterclaim is dismissed it can still be brought in a separate
suit later. However, if the claim arises from the same transaction and is not
brought in under rule 13(a) then you forever waive the right to bring the claim, in
this case and the future. Permissive claims on the other hand need not be brought.
Also, permissive claims may be dropped due to lack subject matter jurisdiction,
while compulsory claims that are interwoven with the other compulsory claims
with subject matter jurisdiction are okay.
b) Only plaintiffs can bring in permissive claims, defendants are bound to
compulsory claims.
4. Crossclaims: FRCP 13(g). Crossclaim against a Coparty
a) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by
one party against a coparty if the claim arises out of the transaction or occurrence
that is the subject matter of the original action or of a counterclaim, or if the claim
relates to any property that is the subject matter of the original action. The
crossclaim may include a claim that the coparty is or may be liable to the
crossclaimant for all or part of a claim asserted in the action against the
crossclaimant.
B. Parties 536-73
1. Mastercard International v. Visa International Service Association
a) Rule 19(a)(1) - a party is necessary under Rule 19(a)(1) only if in the party’s
absence “complete relief cannot be accorded among those already parties.” - This
rule is only concerned with those who are already parties, this does not apply to
joined parties. Mastercard’s dispute can be resolved without Visa present.
b) Rule 19(a)(2)(i) - Visa argues their interests are affected if not joined. The
contract in dispute is between Mastercard and FIFA not Mastercard, FIFA, and
Visa, therefore if Mastercard prevails, Visa can still bring a separate action
against FIFA for breach of contract. It is not enough to have an interest, even a
very strong one. This rule is only for parties whose ability to protect their interests
would be impaired because of that party’s absence from litigation. The harm
would be caused by FIFA’s action in awarding Visa a contract not by Visa’s
absence from the suit.
c) Rule 19(a)(2)(ii) - substantial risk of inconsistent obligations must be caused by
the non-party’s absence. However, if Mastercard prevails and an injunction is
granted, no other court would also require FIFA to make good on their Visa
contract against the orders of another court.
V. Discovery
A. Intro - What you will learn in our Discovery topic:
1. What Discovery can accomplish
a) Uncover facts
b) Uncover strengths and weaknesses of your case
c) Uncover strengths and weaknesses of opponent
d) Preview of how witnesses will behave at trial
e) Narrow the issues for trial
f) Create a record
(1) For impeachment at trial
(2) For settlement
(3) For summary judgement
g) Give the other side a taste of trial (induce settlement)
h) Illegitimate purposes:
(1) To open info to the public before trial (high profile)
(2) Delay
(3) Drive up the other side’s cost (to induce settlement)
2. Identify the aim of a series of Qs in a deposition
3. How to decide which questions to ask
4. Become aware of and respond to the problems of:
a) The Recalcitrant Deponent
b) The Aggressive Counsel of Deponent
c) The Aggressive Deposing Attorney
5. Aware of why Discoverees would want to object to Qs and how
6. Role of court in solving these problems
7. Scope of discovery
8. Mandatory Disclosure
B. Scope
1. Relevance - FRCP 26(b)(1) - Scope in General. Unless otherwise limited by court
order, the scope of discovery is as follows: Parties may obtain discovery regarding

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 any non-privileged matter that is relevant to any party’s claim or defense - including
the existence, description, nature, custody, condition, and the identity and location of
any documents or other tangible things and the identity and location of persons who
know of any discoverable matter. For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rue 26(b)(2)(C).
2. American Roller Co., LLC v. Foster-Adams Leasing, LLP
a) 2000 amendments to the rule narrowed the scope of discoverable information
from that “relevant to the subject matter” of the action to information relevant to
“a claim or defense” raised in the action.
3. Scope of Discovery after the 2000 Amendments to Rule 26(b)(1) - scope of
discoverable information went from information relevant to “subject matter” of the
action to information relevant to “a claim or defense” raised in the action.
a) “Subject Matter” Discovery for Good Cause - Rule 26(b)(1) indicates that a court
may order discovery of information relevant to the subject matter of the action
“for good cause.”
b) Protective Orders - permits the targets of discovery efforts to seek a protective
order form the court if they object to the production of requested information.
(1) persons must first “meet and confer” with the requesting party and make a
good faith effort to resolve the discovery dispute without court action
(2) then “good cause” must be shown and the rule indicates that such orders are
appropriate “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”
c) Discovery from Nonparties - Rule 45 permits nonparties to be subjected to
depositions and document inspection via subpoenas. However, you can not
impose “undue burden or expense” on the nonparty.
4. Limits of the Scope
a) Rule 26(b)(1) - limitations to discovery, set forth below
b) Rule 26(b)(2) - undue burden and expense
(1) Subsection A permits courts to limit the number and length of depositions or
the number of interrogatories in its discretion.
(2) Subsection B protects parties against the burden of having to produce
electronically stored information that is “not reasonably accessible.”
 (3) Subsection C permits the court to limit discovery based on factors intended to
ensure discovery requests are proportional to the needs, costs, and burdens of
all parties involved.
C. Burden and Proportionalities 620-51
1. Rule 26 (b)(2)(C) - In brief this rule enables the court to limit discovery if the court
finds that the discovery is too burdensome in relation to its utility to the litigation.
a) Gonzales v. Google, Inc.
D. Protection: Protective Orders, Privilege, and Work-Product Protection 652-675
1. Privilege and Work-Product Protection
a) The Attorney-Client Privilege - Society values the relationships protected by
privileges and prioritizes free communication in the context of these relationships
more than the contribution such information could make to improved accuracy of
litigation outcomes were it obtainable. Elements of attorney-client privilege:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is a member of the bar
of a court, or his or her subordinate, and (b) in connection with this
communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed (a) by
his client (b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in
some legal proceeding, and (d) not for the purpose of committing a crime or
tort; and
(4) the privilege has been (a) claimed and (b) not waived by the client
(5) **Privilege protects communication rather than information or facts, the
communication must be for the purpose of securing legal advice, and the
privilege has not been waived.
b) The Work-Product Doctrine - protects materials prepared in anticipation of
litigation from being disclosed to a certain extent.
(1) Hickman v. Taylor
E. Discovery Devices
1. Rule 26(a): Duty to Disclose; General Provisions Governing Discovery; Required
Disclosures - requires the disclosee to hand documents over without any prompting
from the opponent.

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 a) Anything that was supposed to be disclosed that wasn’t disclosed will not be
permissible in court.
2. Rule 34: Production of Documents, ESI, and Things
a) When disagreements arise, the parties must meet and attempt to resolve their
differences before either of the petitions the court for a forced resolution.
3. Rule 33: Interrogatories
a) Rule 36: Requests for admission
(1) response must be an admittance or denial
(2) if an admittance, the issue is eliminated as a disputed matter in the case
4. Rule 30: Oral Depositions
a) Objectionable:
(1) confusing
(2) privilege
(3) confidential
(4) 26(b)(1)
(5) 26(b)(3)
(6) 26(b)(2)
(7) annoyance, embarrassment, oppression
(8) law or legal opinion
b) Done in writing or orally
5. Rule 35: Physical and Medical Examinations
a) person to be examined must be a “party” (or someone under the control of a
party); and
b) that party’s mental or physical condition must be “in controversy;” and
c) the party seeking examination must demonstrate “good cause” to justify the
examination.
d) if the party examined under Rule 35 requests a copy of the examiner’s report, that
party waives any doctor-patient privilege “concerning testimony about all
examinations of the same condition.”
F. Compulsion and Disputes
 1. Orders to Compel & Protective Order
a) FRCP 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.
(1) (a) Motion for an Order Compelling Disclosure or Discovery
(a) (1) In General. On notice to other parties and all affected persons, a party
may move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action. Finish 687-699
VI. Disposition Without Trial 731-743
A. The Context: Costs of Litigation - only 2% of suits are resolved during or after trial
B. Default and Dismissal
1. Default and Default Judgment
a) After the plaintiff files its complaint, the defendant has 21 days after being served
with the summons to respond either through an answer or by raising objections
through a motion. Failure to respond:
(1) FRCP 55. Default; Default Judgment
(a) Entering a Default. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise, the clerk must enter the
party’s default.
(b) Enter a Default Judgement
i) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum
that can be made certain by computation, the clerk - on the
plaintiff’s request, with an affidavit showing the amount due - must
enter judgment for that amount and costs against a defendant who
has been defaulted for not appearing and who is neither a minor nor
an incompetent person.
ii) By the Court. In all other cases, the party must apply to the court for
a default judgement. A default judgment may be entered against a
minor or incompetent person only if represented by a general
guardian, conservator, or other like fiduciary who has appeared. If
the party against whom a default judgment is sought has appeared
personally or by a representative, that party or its representative
must be served with written notice of the application at least 7 days
before the hearing.
b) Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc.

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 c) Standards for granting default judgment: Default judgment is not automatically
granted after a default has been entered. Many courts will engage in an
independent inquiry into whether the plaintiff has alleged facts that entitle it to
relief and the amount of damages.
d) When entering or effectuating judgment, the court must: (1) conduct an
accounting, (2) determine the amount of damages, (3) establish the truth of an
allegation by evidence, and (4) investigate any other matter.
2. Involuntary and Voluntary Dismissals
C. Judgment on the Pleadings
D. Dismissal 743-746
E.
The Pretrial Conference, Settlement and ADR 746-775
1. 1992 changes to civil procedure
a) claims of a rise in federal suits due to frivolous claims (research made by
insurance companies)
b) much easier for defendants to knock law suits out before trial
c) Rule 11 sanctions were easier to impose after 1992
d) Rule 16, pretrial conference completely revamped - opposite of the passive
neutral judge, before not supposed to weigh evidence, no need to read the
pleadings, judges just made decisions without any research - allowed for weeding
out of entire suits or even just partial lawsuits -
2. Rule 16(c)(2)(A) - judges are encouraged to weed out frivolous claims on their own
3. In re Atlantic Pipe Corp
a) 4 sources of authority for ordering mediation
(1) Local Rules
(2) ADR Act
(3) Civil Rules
(4) Inherent Powers
F. Summary Judgement 775-799
1. Rule 56
2. Celotex - burden of production
3. The spectrum of dismissals: Rule 12(b)(6): Examine complaint to determine if claim
should be dismissed --> Rule 12(c): Examine all the pleadings to determine if claim
should be dismissed, there should be no dispute of facts --> Rule 56: Look at the
fruits of discovery to determine if there are enough facts to proceed, this motion can
be brought sua sponte

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