CIVIL PROCEDURE OUTLINE – PROFESSOR BERT HUANG

I. THE POWER AND LIMITS ON COURTS...........................................................................................................................5

A. UNITED STATES V. HALL (5TH C 1972, P10)...............................................................................................................................5
II. PROCEDURAL DUE PROCESS (19)...................................................................................................................................5
A. NECESSITY| GOLDBERG V. KELLY (BRENNAN, 1970)............................................................................................................5
1. Access to Litigation Values....................................................................................................................................................5
B. MATHEWS TEST| MATHEWS V. ELDRIDGE (POWELL, 1976, P 38)..........................................................................................5
C. LIMITING DUE PROCESS| HAMDI V. RUMSFELD (O’CONNOR, 2004).....................................................................................6
III. REMEDIES (93).....................................................................................................................................................................6
A. PRE-TRIAL ACTION| FUENTES V. SHEVIN (STEWART, 1972)..................................................................................................6
B. FINAL RELIEF | WALGREEN CO. V. SARA CREEK PROP. CO. (POSNER, 7TH C, 1992, P113)...................................................6
1. +/- Damages vs. Injunction...................................................................................................................................................7
C. CONTEMPT | WALKER V. CITY OF BIRMINGHAM (STEWART, 1967).......................................................................................7
IV. DAMAGES AND MORE REMEDIES (122).......................................................................................................................7
1. Punitive Damages.................................................................................................................................................................7
2. Enforcement of Damages......................................................................................................................................................7
3. Settlement..............................................................................................................................................................................7
4. Declaratory Judgment Act 28 U.S.C. §§ 2201, 2202............................................................................................................7
A. CAREY V. PIPHUS (POWELL, 1978)........................................................................................................................................8
B. NO ADEQUATE REMEDY AT LAW| AMERICAN HOSPITAL SUPPLY CORP. V. HOSPITAL PRODUCTS (POSNER, 7TH C, 1986)....8
1. Preliminary Injunction......................................................................................................................................................8
2. Temporary Restraining Order R65(b)...............................................................................................................................8
TIMELINE OF LITIGATION........................................................................................................................................................9
V. PLEADINGS R7.......................................................................................................................................................................9
VI. PREPARING A COMPLAINT R8(A)..................................................................................................................................9
A. SHORT STATEMENT| DIOGUARDI V. DURNING (CLARK, 2D C, 1944)....................................................................................9
B. NO SET OF FACTS| CONLEY V. GIBSON (BLACK, 1957)........................................................................................................9
C. PLAUSIBILITY| BELL ATLANTIC CORP. V. TWOMBLY (SOUTER, 2007, P205)......................................................................10
D. FACTS  PLAUSIBILITY| ASHCROFT V. IQBAL (KENNEDY, 2008).......................................................................................10
VII. ANSWERS, MOTIONS & AFFIRMATIVE DEFENSES...............................................................................................10
A. PRELIMINARY MOTIONS.......................................................................................................................................................10
B. MOTIONS TO DISMISS R12...................................................................................................................................................10
1. Preserving Motions & Defenses......................................................................................................................................10
2. 12(b)(6)............................................................................................................................................................................11
C. ANSWERS (TO COMPLAINTS)................................................................................................................................................11
D. ADMISSIONS AND DENIALS..................................................................................................................................................11
E. AFFIRMATIVE DEFENSES.......................................................................................................................................................11
VIII. AMENDMENTS R15........................................................................................................................................................11
A. SINGLETARY V. PENN DEPT. OF CORRECTIONS (BECKER, 3RD C, 2001, P250).....................................................................11
B. CHRISTOPHER V. DUFFY (KAPLAN, MASS. APP. CT., 1990)................................................................................................11
IX. SIMPLE JOINDER, COUNTERCLAIMS, CROSS-CLAIMS.......................................................................................12
A. SIMPLE JOINDER R18...........................................................................................................................................................12
B. JOINDER OF PARTIES R20| KEDRA V. CITY OF PHILADELPHIA (LUONGO, 1978).................................................................12
C. COUNTERCLAIMS & CROSS-CLAIMS R13............................................................................................................................13
1. Compulsory Counterclaim R13(a)| Podhorn v. Paragon Group Inc (Hungate, 1985)...................................................13
D. THIRD PARTY PRACTICE R14...............................................................................................................................................13
1. 3rd Party Impleader| Gross v. Hanover Ins. Co. (Leisure, 1991).....................................................................................13
X. NECESSARY & INDISPENSABLE PARTIES...................................................................................................................13
A. REQUIRED JOINDER BY PARTIES R19...................................................................................................................................13

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 1.
Compulsory Joinder| Temple v. Synthes Corp., Ltd. (per curiam, 1991, p 316).............................................................14
2.
Daynard v. Ness, Motley, Loadholdt, Richardson & Poole, P.A. (Young, 2001, p 320)..................................................14
B. INTERVENTION R24..............................................................................................................................................................14
1. United States v. Northern Indiana Public Service Co., Et Al. (Sharp, 1983)..................................................................14
XI. TRIAL PREPARATION......................................................................................................................................................15
XII. DISCOVERY.......................................................................................................................................................................15
A. DISCLOSURES.......................................................................................................................................................................15
B. PRIVILEGE| HICKMAN V. TAYLOR (MURPHY, 1947)............................................................................................................16
C. OVERLY BROAD & UNDULY BURDENSOME| MOSS V. BLUE CROSS BLUE SHIELD OF KANSAS..........................................16
D. PROTECTIVE ORDERS R26(C)...............................................................................................................................................16
E. DEPOSITIONS R27-32...........................................................................................................................................................16
F. WRITTEN INTERROGATORIES R33........................................................................................................................................17
G. PRODUCTION OF DOCUMENTS AND THINGS R34.................................................................................................................17
H. PHYSICAL & MENTAL EXAMINATIONS R35.........................................................................................................................17
I. REQUESTS FOR ADMISSIONS R36..........................................................................................................................................17
J. INFORMAL DISCOVERY..........................................................................................................................................................17
K. EXPERTS...............................................................................................................................................................................17
L. SANCTIONS R37....................................................................................................................................................................17
M. E-DISCOVERY......................................................................................................................................................................18
1. Zubulake Factors| Semsroth v. City of Wichita (magistrate judge, 2003).......................................................................18
2. Spoilation| Teague v. Target Corp. (Mullen, 2007).........................................................................................................18
N. TRANSNATIONAL DISCOVERY..............................................................................................................................................18
1. Hague Convention| Societe National Industrielle Aerospatiale (SNIA) v. U.S. District Court (Stevens, 1987).............18
XIII. RIGHT TO JURY..............................................................................................................................................................19
A. 7TH AMENDMENT...................................................................................................................................................................19
B. REMEDY OR EQUITY| CHAUFFEURS, TEAMSTERS & HELPERS, LOCAL NO. 391 V. TERRY (MARSHALL, 1990).................19
1. Right to Jury Analysis......................................................................................................................................................19
XIV. OVERRIDING THE JURY..............................................................................................................................................19
A. SUMMARY JUDGMENT R56..................................................................................................................................................20
1.
Absence of Evidence| Celotex Corp. v. Catrett (Rehnquist, 1986)..................................................................................20
2.
Burden of Proof| Anderson v. Liberty Lobby Inc.............................................................................................................21
3.
Record Taken as a Whole| Matsushita Elec. v. Zenith.....................................................................................................21
4.
“Only If” there is a Genuine Dispute| Scott v. Harris (Scalia, 2007).............................................................................21
B. JUDGMENT AS A MATTER OF LAW R50................................................................................................................................21
1. Directed Verdict R50(a)...................................................................................................................................................21
2. Judgment Notwithstanding the Verdict - JNOV R50(b)...................................................................................................21
3. JNOV| Tavoulareas v. Washington Post (Gasch, 1983)..................................................................................................22
4. Conditional Ruling on a Motion for a New Trial R50(c)................................................................................................22
XV. DIRECT CONTROL OF JURY.........................................................................................................................................22
A. VERDICTS.............................................................................................................................................................................22
1.
Remmitur/Additur............................................................................................................................................................22
2.
Judge Powers..................................................................................................................................................................23
B. DISMISSALS & DO-OVERS....................................................................................................................................................23
1. Dismissal of Actions R41.................................................................................................................................................23
2. New Trial R59..................................................................................................................................................................23
3. Relief from a Judgment R60............................................................................................................................................23
XVI. APPEALS...........................................................................................................................................................................23
1.
Appeals Process..............................................................................................................................................................23
2.
Federal Rules of Appellate Procedure – FRAP...............................................................................................................23
3.
Standard of Review..........................................................................................................................................................23
A. FINAL JUDGMENT RULE.......................................................................................................................................................24
1. Collateral Order Doctrine...............................................................................................................................................24
2. Interlocutory Appeal........................................................................................................................................................24
3. Writs of Mandamus & Prohibition..................................................................................................................................24
B. ALTERNATIVE DISPUTE RESOLUTION R16.4........................................................................................................................24
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 1. Mediation........................................................................................................................................................................24
2. Arbitration.......................................................................................................................................................................24
JURISDICTION..............................................................................................................................................................................25
XVII. PERSONAL JURISDICTION........................................................................................................................................25
A. FEDERAL STATUTORY REQUIREMENTS.................................................................................................................................25
B. LONG ARM STATUTES...........................................................................................................................................................25
C. SPECIFIC OR GENERAL JURISDICTION..................................................................................................................................25
1. General Jurisdiction........................................................................................................................................................25
2. Specific Jurisdiction........................................................................................................................................................25
[LOW RELATEDNESS].....................................................................................................................................................................26
D. TRADITIONAL REQUIREMENTS.............................................................................................................................................26
1. Physical Presence| Pennoyer v. Neff (1877)...................................................................................................................26
E. MINIMUM CONTACTS| INTERNATIONAL SHOE CO. V. STATE OF WA (STONE, 1945)............................................................26
F. SUBSTANTIAL CONNECTION| MCGEE V. INT’L LIFE INS. CO. (BLACK, 1957).....................................................................26
G. PURPOSEFUL AVAILMENT| HANSON V. DENCKLA (WARREN, 1958)...................................................................................26
H. CONDUCT| WORLDWIDE VOLKSWAGEN V. WOODSON (WHITE, 1980)................................................................................26
I. EFFECTS TEST| CALDER V. JONES (REHNQUIST, 1984).........................................................................................................27
J. REASONABLENESS FACTORS| BURGER KING CORP. V. RUDZEWICZ (1985).........................................................................27
K. SUBSTANTIAL CONNECTION| ASAHI METAL INDUSTRY CO. LTD. V. SUPERIOR COURT OF CA, SOLANO COUNTY
(O’CONNOR, 1987).......................................................................................................................................................................27
L. USER’S GUIDE| PANAVISION INTERNATIONAL V. TOEPPEN (THOMPSON, 9 CIR., 1998).......................................................27
1. Effects Doctrine...............................................................................................................................................................27
2. But for Test......................................................................................................................................................................27
3. Fair Play & Substantial Justice......................................................................................................................................27
M. STREAM OF COMMERCE| NICASTRO V. MCINTYRE MACHINERY AMERICA (ALBIN, S.C.N.Y., 2010)................................28
XVIII. FORUM CHOICE..........................................................................................................................................................28
A. FORUM SELECTION| CARNIVAL CRUISE LINES, INC. V. SHUTE (BLACKMUN, 1991)...........................................................28
B. VENUE..................................................................................................................................................................................28
C. FORUM NON CONVENIENS...................................................................................................................................................28
XIX. SUBJECT MATTER JURISDICTION...........................................................................................................................28
A. ARTICLE III, § 2...................................................................................................................................................................29
B. FEDERAL QUESTION § 1331.................................................................................................................................................29
1. Federal Ingredient| Osborn v. Bank of the U.S. (Marshall, 1824)..................................................................................29
2. Well-pleaded Complaint| Louisville & Nashville Railroad CO. v Mottley (Moody, 1908).............................................29
3. Holmes Test| Merrell Dow Pharmaceuticals Inc. v. Thompson (1986)...........................................................................29
4. Embedded Federal Issue| Grable v. Darue (2005).........................................................................................................29
C. DIVERSITY QUESTION § 1332..............................................................................................................................................30
1. Complete Diversity..........................................................................................................................................................30
2. Amount in Controversy....................................................................................................................................................30
3. Nerve Center| Hertz v. Friendly (Breyer, 2010)..............................................................................................................30
XX. SUPPLEMENTAL JURISDICTION § 1367.....................................................................................................................30
A. COMMON NUCLEUS| UNITED MINE WORKERS OF AMERICA V. GIBBS (BRENNAN, 1966)..................................................31
1.
Pendent Jurisdiction........................................................................................................................................................31
B. COMPLETE DIVERSITY| OWEN EQUIPMENT & ERECTION CO. V. KROGER (STEWART, 1978).............................................31
1. Ancillary Jurisdiction......................................................................................................................................................31
C. REMOVAL § 1441.................................................................................................................................................................31
XXI. THE ERIE DOCTRINE....................................................................................................................................................31
A. FEDERAL GENERAL COMMON LAW| SWIFT V. TYSON (STORY, 1842)................................................................................31
1. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co. (Butler, 1928)...................................................................32
B. LAW OF THE STATES| ERIE RAILROAD CO. V. TOMPKINS (BRANDEIS, 1938)......................................................................32
C. OUTCOME-DETERMINATIVE TEST| GUARANTY TRUST CO. V. YORK (1945).......................................................................32
D. OUTCOME + FEDERAL INTEREST| BYRD V. BLUE RIDGE ELECTRIC COOPERATIVE, INC. (1958)........................................32
E. FEDERAL PROCEDURE| HANNA V. PLUMMER (WARREN, 1965)...........................................................................................32
F. THE MODERN FRAMEWORK| HANNA...................................................................................................................................33
G. HIERARCHY..........................................................................................................................................................................33
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 H. 28 U.S.C. § 2072 RULES OF PROCEDURE AND EVIDENCE; POWER TO PRESCRIBE...............................................................33
XXII. FINALITY & PRECLUSION.........................................................................................................................................34
A. CLAIM PRECLUSION.............................................................................................................................................................34
1.
Affirmative Defense R8(c)...............................................................................................................................................34
2.
Privity..............................................................................................................................................................................34
3.
Heacock v. Heacock (Mass. 1998)..................................................................................................................................34
4. RES JUDICATA| TAYLOR V. STURGELL (GINSBURG, 2008)....................................................................................................34
B. FINAL JUDGMENT ON THE MERITS.......................................................................................................................................35
C. ISSUE PRECLUSION...............................................................................................................................................................35
1. Collateral Estoppel| Parklane Hoisery Co., Inc. v. Shore (Stewart, 1979).....................................................................35
2. Nonmutual Offensive Issue Preclusion............................................................................................................................35
3. Nonmutual Defensive Issue Preclusion...........................................................................................................................35
XXIII. CLASS ACTIONS...........................................................................................................................................................35
A. +/-........................................................................................................................................................................................35
1.
Advantages......................................................................................................................................................................35
2.
Disadvantages.................................................................................................................................................................36
B. RULE 23................................................................................................................................................................................36
1. Prerequisites R23(a)........................................................................................................................................................36
2. Types R23(b)....................................................................................................................................................................36
C. CAFA 2005| CLASS ACTION FAIRNESS ACT........................................................................................................................36
D. RELATIONS TO OTHER TOPICS..............................................................................................................................................36
1. SMJ..................................................................................................................................................................................36
2. Discretion........................................................................................................................................................................36
3. Notice..............................................................................................................................................................................36
4. Joinder.............................................................................................................................................................................37
5. Remedies..........................................................................................................................................................................37
6. Due Process| Personal Jurisdiction................................................................................................................................37
7. Settlement........................................................................................................................................................................37
E. ANCHEM PRODUCTS, INC. V. WINDSOR (GINSBURG, 1997).................................................................................................37
1. Ortiz v. Fibreboard Corp..................................................................................................................................................37

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I. The Power and Limits on Courts
A. United States v. Hall (5th C 1972, p10)
An injunction can be ex parte against an undefinable group
[injunction by sheriff/superintendent in Duvall City school, Hall was notified but not specifically named
in injunction, was based on Mims v. Duval County School Board]
protects judgment in other cases, related to in rem junctions which are not prevented by R65 injunctions
and restraining orders
had retained jurisdiction from Mims case
R65- injunctions and restraining orders

II. Procedural Due Process (19)

Substantive DP: state incursions on individuals’ liberty or property rights are presumptively invalid (ex.
right to privacy etc.)
Procedural: procedural hurdles a government has to go through before depriving a person of life, liberty or
property
Doctrinal Elements: states; deprive; person; life, liberty, property; due process
Notice and hearing
5th A: “nor be deprived of life, liberty, or property, without due process of law”
14th A: “nor shall any state deprive any person of life, liberty, or property without due process of the law;
nor deny to any person within its jurisdiction the equal protection of the laws”

A. Necessity| Goldberg v. Kelly (Brennan, 1970)

Only pre-termination hearing would satisfy due process when it comes to the necessities of life, i.e.
welfare
[Kelly was term’d bc didn’t stay in appropriate hotel and sued for violation of due process under 14 A,
was notified but no hearing before]
Before G v B welfare laws allowed benefits to be term’d as soon as caseworker found a fraudulent
recipient ineligible

1. Access to Litigation Values

i. Dignity - decreased self respect if denied opportunity to litigate
ii. Participation – chance to exert influence
iii. Deterrence – litigation can influence socially desirable behavior
iv. Effectuation – chance to get what is rightfully yours
v. Procedural justice – fairness of procedure leads to legitimacy + people accept decisions

B. Mathews Test| Mathews v. Eldridge (Powell, 1976, p 38)

Disability benefits termination issue is not a due process violation because not a necessity and decisions
are usually made on medical evidence- objective determination
[was informed after medical re-evaluation]
The heart of the analysis should focus on the risk of erroneous deprivation and the benefits and
costs of additional procedures. It was important to connect procedural deficiencies or limits to
likelihood of error.
Mathews Test for due process: (1) private interests that will be affected by the official action (2) risk of
erroneous deprivation of the interest through the procedures used + probable value of additional
procedures (3) gov’s interest- function and fiscal burden involved of more proc + public interest

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 important elemen: the probable value of increased procedural protections, weighed against the
increased costs imposed by those additional protections. This weighing of the costs and benefits of
additional protections was pivotal to the analysis. SEE FUENTES ALSO

C. Limiting Due Process| Hamdi v. Rumsfeld (O’Connor, 2004)

Notice, hearing, before a neutral party is important but is modified: presumption for the government is
okay so burden is on Hamdi, hearsay is admissible, and meaningful time and manner
[Government detention of a U.S. citizen on U.S. soil, writ of habeus corpus]
application of Mathews Test to limit Due Process
meaningful time and meaningful manner
hearing factors to consider: form of hearing, content, timing, counsel, who is the decision maker,
constraints on evidence, review of decision
found that violated due process by holding him indefinitely, but can be contested before a neutral
decision maker

III. Remedies (93)

Law (damages)  jury/judgesR69 execution different order to enforce
Equity (actions)  judges  R70 enforcing a judgment for a specific act same court

Strategy: need to figure out what you are suing for, and if its worth it, and what steps you need to take
during the process to get what you want

Final Relief: permanent injunction/declaratory relief; damages (compens, nominal, punitive)

Provisional Relief: preliminary injunction; temporary restraining order, attachment, garnishment, replevin,
trover, sequestration

A. Pre-Trial Action| Fuentes v. Shevin (Stewart, 1972)

Replevin process that occurs before proper opportunity to be heard before stuff is seized violates DP
[stereo/stove on a payment plan; issued Writ of replevin-process for the recovery of goods and chattels
before even received summons]
don’t like too much state power unless there is gov./public interest
“For more than a century the central meaning of procedural due process has been clear: ‘Parties whose
rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must
first be notified”
meaningful time and meaningful manner
R64-siezing a person or property- remedy at equity (arrest, attachment, garnishment, replevin,
sequestration) secure the judgment
Pre-trial seizure is allowed under the extraordinary circumstances doctrine
The Court noted that pre­hearing seizure (deprivation of rights) is acceptable only under limited 
circumstances: (1) The seizure is necessary for an important public or government interest. (2) 
There is a need for prompt action. (3) The seizure is conducted by an agent of the government, 
doing something specifically prescribed 

B. Final Relief | Walgreen Co. v. Sara Creek Prop. Co. (Posner, 7 th C, 1992,
p113)
equitable relief is available when you cant get $, permanent
[Walgreen lease in mall with exclusivity clause, had to buyout to put in Phar-Mor Corp]

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 diversity suit breach of k; put in permanent injunction until lease end bc determining amount would be
inadequate (irreparability is not as big as a fact)
cost benefit analysis is how to determine permanent injunction- judicial discretion

1. +/- Damages vs. Injunction

Injunctions: shift burden of determining costs to parties; prices/costs better determined by market
Damages: avoids cost of supervision and monopoly; less accuracy; increased cost/research of parties
Irreparable harm: standard for preliminary judgment

C. Contempt | Walker v. City of Birmingham (Stewart, 1967)

Can still be sentenced for violating something that is unconstitutional; have to challenge
constitutionality through the proper channels; have to appropriately challenge an injunction instead of
violating it
[filed injunction before a march and went on anyway so were held in contempt]
difficult for courts to consider enforcing bc is inherent injustice to following unconstitutional provisions

IV. Damages and More Remedies (122)

1. Punitive Damages
Determining excessive amounts in punitive damage awards; checking for constitutionally suspect
damages
BMW v. Gore 1) how reprehensible the conduct 2) ratio of award to actual or potential harm inflicted
compensable: punitive 3) comparison to civil/criminal penalties that could be imposed for comparable
conduct
Honda Motor v. Oberg: judicial review of punitive damages is required; procedural defects can be
challenged, i.e. judicial review
State Farm v. Campbell: held that the punitive award of $145 million was neither reasonable nor
proportionate to the wrong committed, and it was thus an irrational, arbitrary, and unconstitutional
deprivation of the property DP of the insurer. (guideline 1:10) The Court reasoned that evidence of
dissimilar out-of-state misconduct was an improper basis for punishing the insurer for the limited harm
and noted, "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process."
Philip Morris: can use punitive damages to punish for nonparties to suit to determine reprehensibility
but not really for calculating actually damages

2. Enforcement of Damages
P=judgment creditor/ D=judgment debtor
After R58 entering a judgment can make moves to execute via injunction, sequester, etc. R69/70

3. Settlement
Econ analysis; sometimes mutually beneficial analysis but only works when P and D estimates are
similar

4. Declaratory Judgment Act 28 U.S.C. §§ 2201, 2202

determines rights of parties without ordering any action, binding settlement of a legal question but no
method of enforcement
§ 2201 creation of a remedy – right to a declaratory judgment
§ 2202 further relief – based on dec. judg. w/ notice + hearing against any adverse party
can get Federal Q jurisdiction this way if not a clear cut issue
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A. Carey v. Piphus (Powell, 1978)
In the absence of proof in injury cannot get substantial non-punitive damages, can only get nominal
damages; even if there is no substantive harm, there may still be constitutional harm (due process that is
non-monetizable); Have to show distress came from the lack of process
[kids didn’t get due process before suspensions for wearing earring and smoking weed]
§ 1983 Compensation for injuries based on deprive of const. rights IIF 1) P has proven that rights were
violate and 2) injury was caused by violation
1. A wrong under § 1983 does not entitle a party to recover substantial, although unspecified, damages to compensate for
that wrong as they would under a tort cause of action in which per se damages are recognized.
2. A plaintiff is entitled to an award of nominal damages under § 1983 if he has established that the defendant’s conduct
violated his constitutional rights.
3. Because the right to procedural due process is absolute, nominal damages are available for denial of due process even
absent actual injury.
4. Compensatory damages are the norm when a plaintiff prevails on a §1983 claim for constitutional violations and can
prove actual damages.

B. No Adequate Remedy at Law| American Hospital Supply Corp. v. Hospital

Products (Posner, 7th C, 1986)
[Distributor v. supplier; HP term’d AH’s k AH got preliminary injunction]
Probability of P’s harm if denied > Probability of D’s harm if granted
Posner Formula: P x HP > (1-P) x HD
Dissent Traditional Framework Requirements- 1) no adequate remedy at law 2) will suffer
irreparable harm if relief is not granted, weighed with D’s irreparable harm 3) some likelihood of
success on the merits 4) would injunction disserve the public interest (more traditional, R65; weigh
these in relation to each other)
Judicial discretion when there are extraordinary circumstances, monetary award would be speculative
or ongoing set of harms, irreparable (esp in property); maybe Posner is better for economic and AH is
better for constitution but both tests are discretionary

1. Preliminary Injunction
1) harm to P if denied 2) harm to P if denied is greater than harm to D if granted 3) likeliness P will win
at trial 4) public interest

2. Temporary Restraining Order R65(b)

(1) immediate issuing without notice only if specific facts show that irreparable injury will happen and
attorney certifies reasons why (2) contents, expiration- 14 days

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 TIMELINE OF LITIGATION
Complaint (R8) Motion (R12b1-7) w/I 14 days (12a) Answers (8b) Defenses, except 12b2-5,
affirmative defenses, admits/denies
 Answer w/i 21 days

V. Pleadings R7
Claims/cross/counter/3rd party
Complaints: doc that gets civil litigation going
Answers: doc that responds to the accusations made in the complaint, can raise claims of its own
pleadings tell you what the case about vs. motions that get the court to do something
Affirmative defenses can also be pleadings
Replies are very rare but court can grant
Answers to cross and counter claims are also called pleadings

R7- Pleadings Allowed; Form of Motions and Other Papers (complaint, answer to complaint, answer
to counterclaim or cross claim, 3rd party complaint or answer to, reply to an answer if court wants)

R8- General Rules of Pleading

8a short and plain statement of jurisdiction, claim and relief
8b defenses; admissions and denials in response to pleading- yes/no/don’t know (responsive
pleading)
8c affirmative defenses- sometimes still considered liable but will bar recovery

R9- pleading special matters, have to state certain specifics with clarity (ex. special damages,
admiralty, fraud)

VI. Preparing a Complaint R8(a)

(1) short and plains statement of jurisdiction (2) short and plain statement of claim (3) demand for relief
Need to include everything P plans to argue
R1- scope & purpose- civil actions- just, speedy, inexpensive determination
R2-one form of action- the civil action
R3- starts by filing a complaint with a court

A. Short Statement| Dioguardi v. Durning (Clark, 2d C, 1944)

Only need a short and plain statement showing entitlement to relief=notice pleading
[complaint by immigrant written about bottles of tonic, written pro se]
opinion was written by the man who also wrote FRCP, wants leniency in first screening process
worried about allowing a P to get his day in court, might cause people to not get lawyers bc lower
standard

B. No Set of Facts| Conley v. Gibson (Black, 1957)

Rules don’t require specific facts in the complaint
[black employees were being screwed by the union and wanted equal support via the Railway Labor
Act]
don’t dismiss unless is “beyond doubt” that the P can “prove no set of facts” bc can get facts in
discovery
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 moved from notice pleading to fact pleading

C. Plausibility| Bell Atlantic Corp. v. Twombly (Souter, 2007, p205)

Factual allegations in pleading need to plausibly suggest and enough to raise a right of relief and not
just be consistent with it
[anti-trust issue, sued for monopoly issue of phone companies]
discovery is expensive so want to avoid, very coercive to force defendants to share stuff but then there’s
a lot more controls at discovery level and summary judgment now
must plead facts according to plausible claim and courts will use experience and common sense
must “plausibly suggest” a claim for relief not merely be “consistent with” the right of action

D. Facts  Plausibility| Ashcroft v. Iqbal (Kennedy, 2008)

A complaint must have enough facts to make a claim plausible, more than possible + legal conclusions
and conclusory statements get dropped.
transubstantivity
[Bivens (how you sue Fed), sued Ashcroft and FBI for clm of gov badness due to race, national origin]
(1) cross out any legal conclusions that comes from applying law to facts (2) whatever remains assume
to be true and ask whether these facts state a clm for relief

VII. Answers, Motions & Affirmative Defenses

A. Preliminary Motions
Check timing so you don’t lose by default
R55- Default judgment- failure to plead
Filing preliminary motions will not stop right to amend pleadings but filing an answer will

B. Motions to Dismiss R12

Have to consolidate reasons for dismissal
Favored defenses 12(b)
How to present defenses-12(b)(1) lack of subject matter jurisdiction 12(b)(2) lack of personal
jurisdiction 12(b)(3) improper venue 12(b)(4) insufficient process 12(b)(5) insufficient service of
process 12(b)(6) failure to state a claim upon which relief can be granted 12(b)(7) failure to join
a party under R19 [required joinder]
12(c) motion for judgment on the pleadings
12(e) motion for a more definite statement
12(f) motion to strike directed to redundant, immaterial or scandalous matter in the complaint
12(g)(2) limitations, cant make another motion under this rule that was available to the party but
omitted from its earlier motion
12(h) waive defenses unless you don’t put them together in first motion, responsive pleading or
amendment as a matter of course

1. Preserving Motions & Defenses

12(g): If a Rule 12 Motion is made at all, this provision requires that all available defenses (with
exceptions in h2 and h3) be joined in the same motion, or else they may not be raised in another
motion.
12(h)(1): Defenses in 12(b)(2)-(5) are waived unless included in the Rule 12 motion, or if no Rule 12
motion is made, in the response (or amended response).
12(h)(2): 12(b)(6) & (7) defenses are not waived if they are not included in the first Rule 12 motion or
responsive pleading
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 12(h)(3): 12(b)(1) SMJ can be raised at any time, and can be raised sua sponte by the court.

2. 12(b)(6)
(1) claim or cause of action not recognized (2) complaint has insufficient facts (3) is a cause of action
but facts in complaint don’t satisfy the requirements for that cause of action
can be either motions or defenses

C. Answers (to Complaints)

Includes: admissions, denials, 12(b) defenses affirmative defenses, counter/cross claims
Have to be truthful via R11

D. Admissions and Denials

8(b) yes, no or maybe response to each allegation, have to make sure you deny everything you dispute
or else it becomes default true in the case

E. Affirmative Defenses
8(c) ex. res judicata, duress, fraud, etc.
can only be raised in a responsive pleading (answer)

VIII. Amendments R15

Generally liberal policy
R15- Amended and Supplemental Pleadings
Once as a matter of course w/i 21 days after serving R15(a)
if justice so requires a(2)
when relates back to the original pleading (c), would relate back to original date
can occur during and after trial

Arguments against Amends

Unreasonable delay
New issue raised in bad faith or is futile
causes statute of limitation problems: no peace for the D, fresh evidence, avoiding stale cases

A. Singletary v. Penn Dept. of Corrections (Becker, 3 rd C, 2001, p250)

R15(c) an amendment relates back based on a 3-part test (1) claim is based on original pleadings (2)
new party received notice timely so wont be prejudiced in maintaining a defense (3) party should have
known D only wasn’t named “but for a mistake”
[prisoner committed suicide while in jail, mom sued, superintendent, jail, and “unknown corrections
officers”, 2 yrs later tried to add Regan (psychologist) to the complaint via R15(c)]
psychologist never had notice- screwed if you cant figure out D’s name until later in discovery bc your
statute of limitations might run out

B. Christopher v. Duffy (Kaplan, Mass. App. Ct., 1990)

Relating back amendments are denied when there would be too much prejudice towards the D and
discovery would be too difficult.
[denied P motion to amend complaint, lead poisoningchild sicklandlords hired Duffy to de-
leadgot sicker and pneumonia and died, Duffy was originally named as “John Doe”, mom sued the
landlords and was pd but then wanted to amend to sue Duffy and some paint companies]

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IX. Simple Joinder, Counterclaims, Cross-claims
A. Simple Joinder R18
R18 Joinder of Claims- P can join claims even if unrelated but judge has discretion to separate via
R42(b)
R18(a) can join as many independent or alternative claims as any party has against another party
R18(b) once you assert a counter/cross/3rd party, you can add on as many claims as you want
Which parties or which claims
(1) parties or claims (2) same trans or occurrence (3) compulsory or permissive (4) discretion

B. Joinder of Parties R20| Kedra v. City of Philadelphia (Luongo, 1978)

R20 Permissive Joinder of Parties- same transaction and similar question of law and fact in order
to be joined, wont necessarily all have same relief or liability
R20(1) for P, (2) for D
Claim can be of the same series of transactions and occurrences if they are “reasonably related”
[police brutality for 2 years, were sued individually and in their official capacity and joint and
severally
R20(b) offers protective measures against prejudice, delay, cost
R21 Misjoinder and Nonjoinder of Parties- not grounds for dismissing an action, court can sever
R42(a) judge has the ability to join and separate trials- consolidation

PERMISSIVE JOINDER
D: 20(a)(2)(A) may be joined/
P:20(a)(1)(A) may join
Same T/O or series T/Os
And
20(a)(2)(b) Common Q of law or
fact (framed)
20(b): Court can order
separate trials “to protect a
party against embarrassment,
delay, expense or other
prejudice”
21: Court can add or drop a
party, or sever any claims
against a party. Misjoinder is not
a reason to dismiss an action
JOINDER OF PARTIES
R19/R20
COMPULSORY R19
Necessary parties; must be joined if feasible. If not necessary, they
don’t have to be joined. If necessary, but not feasible, the court asks
whether the parties are indispensable.
Who is a necessary party? 19(a) If the parties are necessary, but it
(1) is not feasible to join them, court
determines-in equity and good
conscience-if the action can
proceed 19(b) considering:
19(a)(1)(a) Court cannot afford 19(b)(1) possibility of prejudice
complete relief to the parties to absent and existing parties
without this part in the action, or
i.e. property
19(a)(1)(b)(1) Absent party’s 19(b)(2) Possibility of
asserted interest would be impuned reducing/avoiding prejudice
if s/he was not a party to the action, through protective provisions,
or i.e. fishing entitlement (out) shaping relief, etc.
19(a)(1)(b)(2) Fact that absent 19(b)(3) Adequacy of potential
party has an interest means that an judgment
existing party would be subject to
double, multiple or otherwise
inconsistent obligations i.e. bank
who is holding $ in dispute (in)

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 19(b)(4) Whether P would have a
remedy if the action was
dismissed

C. Counterclaims & Cross-Claims R13

R13 Counterclaim/cross-claim
Counterclaims against an opposing party (B v. A)
Compulsory (from same trans or related to Ps claims, have to worry about preclusion)
R13(a) or Permissive (unrelated) R13(b)
Cross-claims R13(g) (B v. C) between co-parties, have to be related to T/O/property but are always
permissive, same occurrence or set of facts
Once a party X-claims, can permissive counterclaim via R13(b)/R18(b) (is treated like a normal
clm)
Even when D permissively counterclaims, P may have to compulsory counterclaim in response to
permissive claims or else are waived

1. Compulsory Counterclaim R13(a)| Podhorn v. Paragon Group Inc (Hungate,

1985)
Option for claim is waived if it is of the same transaction/occurrence bc it becomes a compulsory
counterclaim
[D joint motion to dismiss, owner of San Miguel Apts., Pods didn’t file a counter claim in state
court action, D got P’s clms dismissed bc didn’t file as a compulsory counterclaim]

D. Third Party Practice R14

Impleader applies when (1) someone is not already a party (2) D has to have a claim against the new
party (liability theory) (3) has to be responsible for all or part of the original P’s claim

Original D becomes a 3rd party P and party they brought in becomes a 3rd party D
R14(a) Need permission >14 days after original answer, can assert claims and defenses when served
according to R12,13(a)(b)(g)
R14(b) P can bring in a third party when a claim is asserted against the P, and the D would’ve been
allowed to
3rd party D can sue the original P under R14(2)(D) as long as is same T/O
always permissive

1. 3rd Party Impleader| Gross v. Hanover Ins. Co. (Leisure, 1991)

Can implead a third party when it increases judicial efficiency and “is or may be liable to the D if
the D is found liable
[owner of jewelry sued insurance co and D wanted to implead the jeweler who had possession of
the jewelry]
after 14 days, court can still implead but has to give a reason

X. Necessary & Indispensable Parties

A. Required Joinder by Parties R19
[R12(b)(7) failure to join a party under R19]
What does the court do?

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R19(a) required when feasible if (a) court cant give complete relief w/o them or (b) has an interest and
needs (1) to be able to protect the interest or (2) is at risk of getting inconsistent obligations (common
for equitable relief issues); Necessary, can involuntarily join them
R19(b) joinder is not feasible and court has to either proceed w/o or dismiss the case; factors (1)
prejudice (2) extent to which prejudice can be avoided by other measures (protective provisions in
the judgment, shaping the relief, other measures) (3) adequate judgment even with their absence
(4) whether P would have adequate remedy if dismissed
[party is already necessary if you’re looking at this]
R19(c) pleading the reasons for nonjoinder, have to say why not joining a person
R19(d) class action exceptions via R23

If necessary have to join them

If not feasible have to ask whether are indispensable
And if indispensablecase has to get kicked out

1. Compulsory Joinder| Temple v. Synthes Corp., Ltd. (per curiam, 1991, p 316)
Don’t have to name all joint tortfeasors in a lawsuit
[plate and screw was implanted and broke in P’s lower spine, sued D in federal and hospital in state,
D moved to dismissed for failure to join necessary parties via R19]
didn’t meet R19(a), P could still get full relief etc

2. Daynard v. Ness, Motley, Loadholdt, Richardson & Poole, P.A. (Young, 2001, p
320)
Joint tortfeasors are not necessary parties. Co-obligors may be necessary but probably not
indispensable, as opposed to an action over a k which would require all parties.
[professor consulted law firms, made oral k with MS Ds for pay but not with SC Ds, SC motioned
to dismiss under 12(b)(7), MS had already been removed for jurisdiction]
Mass. D.C. opinion, R19(b) case- lawyers wanted to drop case
can get complete relief due to joint and several liability, no persuasive precedent, might be issue
preclusion
inconsistent obligations, and not just inconsistent adjudications are what mater- has to be actually
conflicting

B. Intervention R24
Allows nonparties to join ongoing litigation either as a matter of right or court discretion
R24(a) Intervention of Right (1) by statute (2) timely application, interest relating to the property or
transaction which is the subject of action, if the disposition of the action may practically impair or
impede his ability to protect that interest, that the interest is not adequately represented by existing
parties
R24(b) Permissive Intervention, share same question, statute, government officer, no unreasonable
delay
R24(c) Notice and Pleading Required, must be served as provide by R5

1. United States v. Northern Indiana Public Service Co., Et Al. (Sharp, 1983)
Cant intervene if there is no viable purpose and would extend an already long lawsuit, especially if
there is no protectable direct interest under the law.
[U.S. was suing for notice of condemnation to NIPSCO, Save the Dunes Council tried to intervene,
both P/D objected]

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XI. Trial Preparation
R11 Signing Pleadings, Motions, and Other Papers; Representations to the Courtl Sanctions (a) signature
of attorney required on everything (b) representations to the court: truth, proper, factual (c) sanctions if you
violate R11(b) and (d) inapplicable to discovery docs via R26 – R37

R16 Pretrial Conferences, Scheduling; Management (a) court can order parties to appear, expedite, manage
set ground rules, facilitate settlement (b) scheduling order w/ 120 days (c) attendance (d) pretrial orders (e)
final pretrial conference and orders (f) sanctions

XII. Discovery
Purpose: to get the facts; to simplify pleadings, frame relevant issues, settlement, getting the facts, harass
Scope: Parties are generally entitled to discovery of matters that are relevant to a claim or defense, not
privileged and not burdensome
Magistrate judges cover a lot of discovery motions
+: eliminates surprise and preserves testimony, diminishes importance of pleadings, increases effectiveness
of summary judgment, focuses main points and allows parties to see strengths/weaknesses of casemay
want to settle
-: expensive, invasion of privacy, relies on individuals

A. Disclosures
R26 Duty to Disclose; General Provisions Governing Discovery
(a) Required Disclosures- have to provide info/docs/computation for anything supporting
claims/defenses via R34, 14 days to make initial disclosures after R26(f) conference, joined parties have
30 days, expert testimony- have to disclose $ pd/how often they testify/statements (a)(2), pre-trial
witness list (a)(3)
anything relevant to the subject matteranything relative to the claims and defenses
R26(a)(1) identity of people likely to have discoverable info, copies/descriptions/locations of docs,
computation of damages, insurance agreements all related to claims/defenses
R26(a)(2) must disclose identity of any expert who may be used at trial + written report (statement
of all opinions will express and reasons for them, data or facts considered by witness, exhibits,
qualifications, publications from last 10 yrs, previous testifying in last 4 years, pay rate (c) some
witnesses are not required to file expert report
R26(a)(3) 30 days before- name and addy of each witness, deposition witnesses, identification of
docs and exhibits
(b) Discovery Scope & Limits- non-privileged relevant matter, court can limit via R30/R36, court can
limit duplicative discovery or where party can get elsewhere cheaper and efficiently, cant usually
discover things specifically prepared for trial
(2)(a) Permissive Limitations- alter/limit number or length of depositions and number of
interrogatories (via order) or R36 requests for admissions (via order or local rule)
(2)(c) Mandatory Limitations- cumulative, duplicative, obtained from another source, ample
opportunity, burden or expense outweighs likely benefit
(3) Trial Preparation and Materials- for tangible things, can refer to Hickman for intangibles
(c) Protective Orders- court can forbid/limit/seal discovery
trade secrets, unreasonable conduction of deposition, prevent inconvenient place of exam
(d) Timing and Sequence of Discovery
(e) Supplementing Disclosures & Responses- have to correct incomplete/incorrect info in a timely
manner or by court order

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 (f) Conference of Parties; Planning for Discovery- parties have to meet w/i 21 days and have to make a
discovery plan w/i 14 days after that
parties chat, try to settle, make arrangements, plan for discovery
has to take place at least 21 days before R16(b) scheduling conference
9) signing

B. Privilege| Hickman v. Taylor (Murphy, 1947)

Discovery cant be used to inquire into materials collected by an adverse party’s counsel to prepare for
potential litigation
[tug sank, 4 survived, 1 died, 4 settled, 5th asked for a certain interrogatory R33]
cant get if not essential and can get elsewhere (from public testimony), was just an attempt to get
private legal work
Concur- Jackson- allowing would have too many repercussions for witness impeachment and lawyers
having to testify
First big case after passing of FRCP, right before Conley v. Gibson
Attorney-client privilege is narrow only legal advice (communication is privileged but facts are not
R26(b)(5) and doesn’t apply here + client can waive
Work-product protection R26(b)(3) for tangibles and this case for intangibles
Anything prepared in anticipation of law suit
Work Product doctrine: as long as not otherwise discoverable, substantial need, inability to get
equivalent info through other means

C. Overly Broad & Unduly Burdensome| Moss v. Blue Cross Blue Shield of
Kansas
Can deny discovery request when it is “overly broad and unduly burdensome”
[P requested interrogatories that listed any employee who was punished or fired for violating BXBS
FMLA policy, Family & Medical Leave Act, also wanted every email with her name]
amendment to R26- changed scope of discovery from any matter relevant to the subject matter to
relevant to the “claim or defense”

D. Protective Orders R26(c)

Courts can issue protective orders to parties upon showing of good cause and after conferral (or attempted
conferral) of parties to, among other things, (1) protect trade secrets or other confidential information; (2)
prevent an inconvenient place of examination; (3) prevent unreasonable conduct of deposition; (4) stop
unduly burdensome discovery; or (5) limit the scope of discovery.

E. Depositions R27-32
Oral or sometimes written interview, can be used to impeach or used in trial
Sworn testimony under oath, can depose opposing and non-parties, are entitled to be represented by
counsel, can depose a company (they send a rep via R30(b)(6)), limit 10 per side (not party) absent a
court order
Don’t want to use these too early bc will waste one of the limited depositions
Only provides personal knowledge, no duty to update

R27 Depositions to Perpetuate Testimony

R28 Persons Before Whom Depositions May be Taken- authorized officer who can give oaths & take
testimony
R29 Stipulations About Discovery Procedure
R30 Depositions by Oral Examination- deponent’s attendance can be by subpoena via R45
16 of 37
R31 Depositions by Written Questions
R32 Using Depositions in Court Proceedings

F. Written Interrogatories R33

Written questionnaire to be answered and returned under oath, gets details and non-controversial info,
can often be used as evidence but are drafted by lawyers, 25 per party
Duty to update, hace the duty to go out and get answers that are within the party’s control
R33 Interrogations to Parties

G. Production of Documents and Things R34

“document request”
R34 Producing Documents; Storage – have to copy them for the other party or allow them to visit
R45 to get documents and things from non-parties

H. Physical & Mental Examinations R35

When person’s condition is in controversy, requires advance court appeal, need more allegations to get
approved, higher “good cause” standard
R35 Physical & Mental Exams

I. Requests for Admissions R36

Question and answer, admit/deny facts, no response=yes
Can be limited via order or local rule
R36 Requests for Admission – can request the truth of any matters relating fact, application of law to fact,
opinions of those, or genuineness of docs

J. Informal Discovery
Non-party interviews, site visits, internet, private investigations etc.

K. Experts
In civil law countries, judge selects to get rid of bias issues

L. Sanctions R37
R11 doesn’t apply here
R26(g) attorney’s certification
R30(d)(2) impeding deposition
R37 Failure to Make Disclosures or Cooperate; Sanctions
(a) Motion for an order compelling disclosure/discovery
(3)Specific Motion (A) compel disclosure via R26(a), (B) to compel a discovery response
that should’ve been given by R30/31/33/34, (C) related to a deposition
(b) Failure to Comply with a Court- sanctions
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit- can get sanctions, shift
fees, or inform the jury
(d) Party’s Failure to Attend its own Deposition, Serve Answers to Interrogatories, or Respond to a
Request for Inspection- can get sanctions
(e) Failure to Provide Electronically Stored Information- cant impose sanctions if lost in good faith
(f) Failure to Participate in Framing a Discovery Plan- have to pay reasonable expenses

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M. E-Discovery
Preservation and production issues, have to figure out client’s system (whether emails delete
automatically or if there are backups)
Duty to preserve in good faith
Production can be difficult because there are so many files and systems are complex and different

1. Zubulake Factors| Semsroth v. City of Wichita (magistrate judge, 2003)

Zubulake factors were codified as R26(b)(2), really looking at cost-shifting
(B) Specific Limitations on Electronically Stored Info (C) When Required (court can specify
conditions)
Most impt factors: (1) extent to which the request is specifically tailored to to discover
relevant info (2) availability of such info from other sources
(3) the total cost of production compared to the AIC (4) total cost of production compared to
the resources available to each party (5) relative ability of each party to control costs and
incentives to do so (6) importance of issues at stake in litigation (7) relative benefits to the
parties of obtaining the info
Uses Zubulake as leading case/soft authority/persuasive authority
[gender discrimination case against UBS, didn’t give up all emails, sanctions, huge punitive
damages]
Early in E-discovery history
found no cost-shifting bc wasn’t too burdensome
(1) is it reasonably accessible via cost/benefit analysis? (2) if its not easily accessible, requesting
party can show good cause

2. Spoilation| Teague v. Target Corp. (Mullen, 2007)

When spoilation is found, can usually get instructions to jury but not dismissal
[D motion for sanctions and dismissal due to spoilation of material evidence, gender discrimination
case, P discarded her personal PC, sd it crashed]
Spoilation Test: (1) party owns/controls evidence, “culpable state of mind” relevant to claims or
defenses

N. Transnational Discovery
Much more limited, discovery requests have to be specific to allegations and theories, evidence is gathered
throughout the trial, judge has more power and sometimes does the questioning, courts appoint neutral
expert witnesses

1. Hague Convention| Societe National Industrielle Aerospatiale (SNIA) v. U.S.

District Court (Stevens, 1987)
Hague Convention interacts as a permissive supplement, doest deprive D.C. of its normal jurisdiction to
get discovery, “facilitate” and “improve”
[airplane crash in Iowa, figuring out how FRCP and Hague Convention interact]
Blocking Statutes: countries don’t want U.S. discovery intrusions but adopted a system at Hague
Convention- can submit Letter of Request to central authority

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XIII. Right to Jury
A. 7th Amendment
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.”

R38 Right to a Jury; Demand- (a) persevered by the 7th Amendment, (b) on demand in writing or by R5(d),
(c) can specify some issues by default is all issues, (d) waives jury unless demand is filed, (e) doesn’t apply
to admiralty
R39 Trial by Jury or by the Court- (a) when demanded- all to be decided by jury unless stipulated or no
federal right to jury trial (b) when no demandtrial by court
R47 Selecting Jurors- (a) examining jurors, (b) preemptory challenges as numbered by 28 U.S.C. § 1870,
(c) excuse a juror for good cause
R48 Number of Jurors- (a) 6-12 members and most vote except in R47(c), (b)
28 U.S.C. § 1861 Declaration of Policy- jury should be fair cross section of the community in the courts
division, people are obligated to serve as jurors when summoned
28 U.S.C. § 1862 Discrimination Prohibited
+: democracy, citizen participation, legitimization, judicial check, fresh eyes
-: inefficient, incompetent, prejudiced
jury is entitled to treat a party’s dishonesty about a material fact as evidence of culpability

B. Remedy or Equity| Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry
(Marshall, 1990)
Employee who seeks relief via back pay from a union has a right to a jury trial
[collective bargaining agreement, reorganization, special seniority rights, alternatively laid off and recalled
workers, wanted a permanent injunction and wanted a jury, orig co. sued was dropped due to bankruptcy]
is it a law or equity issue by looking at the nature of the issues and the remedy sought
crt found it was more like a trust/trustee relationship than attorney/client
money damages are equitable when its restitution or incidental to injunctive relief (back pay)
Concur-Brennan- textualist of 7th amendment, says to just look at the nature of the remedy sought exception
-administrative proceedings
Dissent- Kennedy/O’Connor/Scalia- resembles equitable trust action, remedies are equitable here
Ross v. Bernhard “The Seventh Amendment question depends on the nature of the issue to be tried
rather than the character of the overall action”

1. Right to Jury Analysis

(1) did the same action exist in 1791 and did it match law or equity remedy? (2) if No, look at the
nature of the issues involved in the case and if its an analogy at law jury (3) if you still cant tell, look
at the nature of the remedy sought and if damages are sought jury

XIV. Overriding the Jury

Statutes can override 7th amendment (ex. all employment discrimination cases get jury)

12(b)(6) R56 R50

Motion to Dismiss for Summary Judgment Judgment as a Matter of
Failure to State a Claim Law
upon which Relief can be
Granted
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Documents to Pleadings- based on
Consider allegations alone
Basis of Decision Plausible, ignore
conclusory assertions
Timing Any time after complaint
is filed, can also file a
12(c)
Merits Not always the case
Affidavits, Depositions,
Pleadings, Previous
records
Evidence held in the light
most favorable to the non-
moving partyJMOL
Usually made by D and
based on material facts
(ex. affirmative Ds) any
time after the complaint;
P can >20 after pleadings
Yes
Actual admitted evidence
during trial
Party has been fully
heard and reasonable jury
would not have legally
sufficient evidentiary
basis to find for that party
No later than 28 days
after the entry of the
judgment
Yes

A. Summary Judgment R56

No need for trial (facts)judgment (as a matter of law)
Burden of Proof: Burden of Production v. Burden of Persuasion
Chance to weed out cases after discovery
R56 Summary Judgment- (a) P, (b) D, (c) Timing
(c)(1) any time until 30 days after close of discovery
(c)(2) no “genuine issue” as to any “material fact” and that the movant is entitled to judgment as a
matter of law
fact should be settled and should show evidence of that
1986 Celotex Trilogy- courts are now more hospitable to SJ- D used to meet the burdens of production or
persuasion but now the D just has to show Ps burdens suck
admissible evidence is accepted as true and there is also the benefit of permissible inferences, also permit
oral arguments sometimes
judge will rarely grant against a pro se P
judge enters realm of fact finding but there is still a legal question of threshold to see if facts can even be
fond
can do SJ if historical facts are not disputed

1. Absence of Evidence| Celotex Corp. v. Catrett (Rehnquist, 1986)

Summary judgment appropriate when moving party shows absence of evidence (and then burden shifts
to non-moving party) who then cant meet the burden.
[alleged husband’s death was due to asbestos, Celotex wanted SJ bc no evidence was exposed to
asbestos]
can use affirmative evidence OR can show that nonmover has failed to meet its evidentiary burden
moving party has initial burden of production
if mover meets the initial burden of production, shifts to nonmoving party who has to show a
dispute s to a material fact
moving party retains ultimate burden of persuasion that no issue of material fact exists and that they
are entitled to JMOL
Concur-White- doesn’t have to show evidence but has to support motion with something, cant just use
conclusory assertions
Dissent- Brennan- must absolutely show the absence of evidence in the record (sd there was evidence in
the record and they cant just ignore it)

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 2. Burden of Proof| Anderson v. Liberty Lobby Inc.
[Libel suit]
burden of proof/level of review matters in determining summary judgment
new standard: need “clear and convincing evidence” of actual malice
burden of persuasion is taken into account when deciding how facts are going to be decided for SJ
trial judge must direct a verdict if there is “but one reasonable conclusion as to the verdict”
might be foreshadowing to Scott v. Harris

3. Record Taken as a Whole| Matsushita Elec. v. Zenith

[anti-trust]
court said theory didn’t make economic sense so granted SJ
where the record “taken as a whole” could not lead a rational trier of fact to find for the nonmoving
party, no genuine issue for trial
mental state issue which is usually classically a fact finding issue but court says is irrational

4. “Only If” there is a Genuine Dispute| Scott v. Harris (Scalia, 2007)

View facts in the light most favorable “only if” there is a “genuine” dispute of facts
[police car chase, cop bumped car and paralyzed guy, sued for excessive force under 4th amend via §
1983]
sd there was no dispute of facts bc videotape was objectively reasonable
Dissent- Stevens- should’ve only reviewed for clear error instead of de novo and is for jury to decide bc
a bunch of judges cant even decide
(1) moving party may submit affirmative evidence that negates an essential element of the nonmoving
party’s claim (2) moving party may demonstrate to the court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s claim

B. Judgment as a Matter of Law R50

R50(d) Within 28 days
R50(e) Reversal on Appeal if erred in JNOV ruling
Judge can raise on his own

1. Directed Verdict R50(a)

“legally sufficient evidentiary basis to find for the party on that issue” not present production burden
after a party has been fully heard, court can find that a reasonable jury has no legally sufficient
evidentiary basis to find for a party
can grant as a matter of law any time before goes to jury
after P presents case, D can move but P cant (nonmoving party has to be fully heard)
after D presents case, both can move
have to move before verdict in order to preserve JNOV
want to preserve 7th amendment so want to pre-examine and then re-examine, don’t want to just
change, also allows nonmoving party to improve

2. Judgment Notwithstanding the Verdict - JNOV R50(b)

After verdict has been rendered, need to do so constitute a waiver of the opportunity to challenge the
sufficiency of the evidence on appeal
Judges reserve DV until JNOV bc then they have a jury verdict to fall back on if there is appeal, avoids
new trial

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 3. JNOV| Tavoulareas v. Washington Post (Gasch, 1983)
Burden of persuasion was clear and convincing evidence of actual malice or recklessness which wasn’t
shown so ok to grant.
[public figure from Mobil suing for libel for articles run about co. he had his son run]
turns out jury botched it completely due to one dude
when evidence plus all the inferences viewed favorable to the non-mover still don’t allow disagreement
on the verdict

4. Conditional Ruling on a Motion for a New Trial R50(c)

If court grants JMOL, must conditionally rule on any motion for new trial by determining whether a
new trial should be granted if the judgment is later vacated or reversed, has to give reason
Conditional ruling doesn’t affect judgment’s finality
R50(d) Time for Losing Party’s New Trial Motion- filed no later than 28 days
R50(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal
If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee,
assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred
in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct
the trial court to determine whether a new trial should be granted, or direct the entry of judgment.

XV. Direct Control of Jury

Instructions, verdicts (special, $$, Y/N), selection, SJ/DV/JNOV/JMOL, evidence restrictions, remmittur,
additur, appeals
R60 Motion to Vacate Judgment-
Mistake- usually when there was no trial bc of a default judgment
Newly discovered evidence, couldn’t have been discovered by “reasonable diligence” otherwise
(b)(6)- any other reason, can be beyond the 1-year limit

A. Verdicts
R49 Special Verdict; General Verdict & Questions (a) special written finding on each fact based on
instructions (b) general + questions but should be consistent or else jury needs to be further directed or else
new trial/JNOV
General: yes or no, if yes damages Q
Special: can structure jury’s reasoning process or can do written Qs and get written findings of fact via R49
Some judges comment on evidence, summarize or explain what they might want to consider
R42 Bifurcation: causation (duty)/liability + damages
R42 Trifurcation: causation (duty) + liability + damages
+: efficiency bc settlement or case dismissed, no emotional element for damages, protects high risk/high
utility products in PL cases
-: juries cant compensate by decreasing damages amount when liability doesn’t seem that high
R42 Consolidation/Separate Trials- (a) consolidation when there are common questions of law and fact (b)
separate to avoid prejudice, increase speed and efficiency

1. Remmitur/Additur
Decrease/increase damages or else have to do a new trial
If court has to grant a new trial, can do so w/ bifurcation just for damages or as a whole
Federal court doesn’t actually use additur

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 2. Judge Powers
R52 Findings and Conclusions by the Court; Judgment on Partial Findings- when there is no jury, facts
and law still have to be found separately, judgment must be entered under R58 Entering Judgment
When there is appeal or new trial with a nonjury trial, judge can just adjust and keep going R59(a)(2)

B. Dismissals & Do-overs

R12(b)(6) How to Present defenses-failure to state a claim upon which relief can be granted

1. Dismissal of Actions R41

R41 Dismissal of Actions (a) voluntary dismissal by P (may mean adjudication) or by court order
usually w/o prejudice (b) involuntary- usually for breaking rules (c) dismissing a counterclaim- before
evidence is introduced at trial or responsive pleading is made (d) costs of a previously dismissed action,
P as to pay if brings same claim again

2. New Trial R59

R59 New Trial; Altering or Amending a Judgment- have 28 days to motion, if there is some issue that
would’ve been reversed on appeal later anyway, when jury verdict is outrageous, can be on the grounds
that the verdict is “against the wait of the evidence
JNOV + New Trial- judge can grant JNOV and deny new trial bc P shouldve already had best chance to
enter its case
Reasons: (1) great weight of the evidence (firm conviction) (2) jury instructions (3) damages too high
or low (4) evidence admitted or not admitted

3. Relief from a Judgment R60

R60 Relief from a Judgment or Order- (b) Grounds for Relief (1) mistake (2) neglect (3) new evidence,
fraud, void etc
(1)/(2)/(3) have to be filed w/i a year

XVI. Appeals
1. Appeals Process
Present alleged errors of trial court
Courts are supposed to establish uniformity of the law in jurisdiction
Appeals Court looks at the record (parties highlight specific portions), submit 30-100 page briefs, and
sometimes are allowed 5-30 minute oral argument
Cannot submit new factual findings and have to be tied to an objected issue in lower court- why you
object to everything to preserve, appeal reason must have affected outcome of case materially
Timing: R50- can get immediate appeal w/i 28 days; R59- no appeal until after new trial

2. Federal Rules of Appellate Procedure – FRAP

Judiciary Act of 1789 established the levels of courts
Can use en banc to redo cases but is really the court of last resort bc Supreme Court doesn’t have to
hear your case- writ of certiorari 28 U.S.C. § 1257
Supreme Court sees about 80 cases a year and most are SPLIT cases where circuits disagree

3. Standard of Review
Fact: Clear Error
Law: De Novo (ex. R50)
Mixed Qs of Law/Fact: Abuse of Discretion/Deference (ex. R59)
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 Not all errors are grounds for reversal, depends on SOR, also harmless error

A. Final Judgment Rule

Trial court should be complete but there exceptions…

1. Collateral Order Doctrine

Offshoot of the principal litigation where the appeal does not require delving into the merits of the case

2. Interlocutory Appeal
Case is still pending in trial court but immediate appeal would “materially advance the ultimate
termination of the litigation”

3. Writs of Mandamus & Prohibition

Require certain action form a public official, very rare

B. Alternative Dispute Resolution R16.4

Can do mini-trial, summary jury trial, mediation
Every federal district court has some time of program
+: cooperation at the start, less cost, more self-determination, less caseloads
-: potential disparity in power, hides public implications, decreases justice bc compromises are private, can
increase costs if prolonged, pressure to settle

1. Mediation
Neutral facilitator or evaluator

2. Arbitration
Decision-maker who makes final, binding, non-appealable judgment, decision is enforced by courts
Arbitration clauses are sometimes included to help companies avoid class action suits- CA & 9th circuit
have ruled that they are against public policy

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 JURISDICTION
XVII.Personal Jurisdiction
[R12(b)(2) lack of personal jurisdiction]
Analysis: (1) statutory requirements satisfied (2) does personal jurisdiction comport with constitution
& due process (a) is there general or (b) specific jurisdiction (i) notice (ii) minimum contacts (iii)
FP&SJ
Via constitution and statutes
Geographic limits on judicial power of sovereign states
State court decisions get “full faith & credit” in other states

A. Federal Statutory Requirements

R4 personal jurisdiction rules, service process restraints, jurisdictional reach usually is same as state court,
100 mile exception, can be auth’d by statute or no limit if it is a federal claims case R4(k)(1)(c)/(b)
R4(k)(2)- P’s claim must arise under fed law, D must be beyond jurisdictional reach of any state court,
exercise of jurisdiction must not violate D’s rights under the 5th amendment- “sufficient aggregate contacts”
in the us as a whole

B. Long Arm Statutes

Court has to be authorized by legislation to assert jurisdiction
bounds Constitutional limits which are usually wider- can be the same though
can apply minimum contacts test after applying long arm statute
refers to specific jurisdiction
federal court long-arms are generally attached to state court long-arms but are technically controlled by
Congress

C. Specific or General Jurisdiction

1. General Jurisdiction
power over all claims whether related or not (ex. when its your state)
Low relatedness, lots of contacts (GJ)
High number and quality of contacts so can litigate without relatedness
Comes from traditional contacts like property, inc., forum selection, service OR systematic and
continuous contacts
Would do the International Shoe (continuous & systematic) + Traditional Requirements analysis
to determine whether you had GJ

2. Specific Jurisdiction
has to be (step 1) arising from or related to the activities in that state
High relatedness, few contacts, notice
(step 2) Minimum contacts (purposefully availed)
Fair play and substantial justice- reasonableness0
Purposeful Availment (New Minimum Contacts)Effects/Streams and Streams +/Old Minimum
Contacts)
Due Process Analysis: (1) minimum contacts; nature/number/quality (via minimum contacts) (a)
purposeful availment (WWVW) (i) traditional minimum contacts (Int’l Shoe) (ii) Effects Test;
when harm sounds in tort (Calder/Panavision) (iii) stream of commerce (WWVW/Asahi/Nicastro)
(2) FP&SJ (a) 7 factors (BK)
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 [high relatedness]

Specific jurisdiction Personal Jurisdiction likely/ few concerns

[few contacts] [many contacts]
Personal Jurisdiction not likely General Jurisdiction

[low relatedness]

D. Traditional Requirements
Service within the state (even via airplane), physical presence, consent (contract), domicile/doing business,
incorporation, showing up in court

1. Physical Presence| Pennoyer v. Neff (1877)

Said required physical presence
A court may enter a judgment against a non-resident only if the party 1) is personally served with
process while within the state, or 2) has property within the state, and that property is attached before
litigation begins (i.e. quasi in rem jurisdiction- $ to make up value of property).

E. Minimum Contacts| International Shoe Co. v. State of WA (Stone, 1945)

If you have “minimum contacts” in a state, you’re enjoying benefits of the state so you should contribute.
Continuous and systematic; can get general jurisdiction
[co. didn’t want to contribute to state unemployment fund, salesmen on commission had to pay]
Opinion- Black: shouldn’t offend FP&SJ, nothing was irregular or casual about biz there
Contacts have to be a “quality nature”, quantity doesn’t matter
If “arising out of or are connected with,” look for “certain minimum contacts” as long as it doesn’t offend
“fair play and substantial justice” specific relatedness

F. Substantial Connection| McGee v. Int’l Life Ins. Co. (Black, 1957)

Qualitative nature of contracts
[resident of CA purchased TX insurance, did everything in TX and then refused to pay, tried to sue in CA]
Can get due process when you have a contract that is a substantial nature, even if its one
In general you ask, does the nature of the contract entered into create any “substantial connection”
between the parties?

G. Purposeful Availment| Hanson v. Denckla (Warren, 1958)

There be some act by which the defendant purposefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its laws.
[Delaware trust, grandma died and FL and left it to a granddaughter]
determining minimum contacts when you are already looking at specific jurisdiction

H. Conduct| Worldwide Volkswagen v. Woodson (White, 1980)

Conduct must be such that party must reasonably expect to be haled into court there.
[bought an Audi in NY then got into a car accident in OK, car caught fire- shouldn’t have, Volks had no
business in OK]
foreseeability alone that an accident might happen in OK is not sufficient

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I. Effects Test| Calder v. Jones (Rehnquist, 1984)
Must reasonably expect to be brought into court for statements made
[Jones (CA) brought suit for libel against National Enquirer in FL]
A state has personal jurisdiction over any party whose actions intentionally reach (effects) another party in
the state and are the basis for the cause of action.

J. Reasonableness Factors| Burger King Corp. v. Rudzewicz (1985)

P need not show that an out of state defendant has both minimum contacts with the forum state and that it is
fair and equitable to require the defendant to defend a suit in the state
[franchise in MI but all the corp stuff in FL, BK sued in FL]
Personal Jurisdiction Factors: extent of purposeful injection in state, burden for D, extent of conflict with
sovereignty of D’s state, efficiency, state’s interest in adjudicating, importance of forum to P relief,
existence of an alternative

K. Substantial Connection| Asahi Metal Industry Co. Ltd. V. Superior Court of

CA, Solano County (O’Connor, 1987)
Need to have minimum contacts and can purposely avail themselves by putting the good into the stream of
commerce but need to have something mere awareness of its product’s entry into the forum state- want
substantial connection (advertising, marketing, etc.)
[motorcycle accident- brought products liability claim but Asahi was brought for indemnification, co-D
with Cheng Shin; Asahi had sold parts only directly to Cheng Shin, Asahi sd no service of process bc had
nothing to do with CA]
didn’t find jurisdiction bc need to didn’t do something more than be aware of awareness of the product in
the forum state
+ no fair play and substantial justice- bc no CA interest anymore and both not residents so is unreasonable
Concur-Brennan: agrees with fair play & substantial justice, not fitting but says stream of commerce
obviates potential litigation
Concur-Stevens: just purposeful availment bc regular course of dealing in # of units is enough but is not
reasonable

L. User’s Guide| Panavision International v. Toeppen (Thompson, 9 Cir., 1998)

Court properly exercised specific, personal jurisdiction
Cybersell- having a website on its own is not enough to get pj
[bought up domain names and then wanted $13k, was sued under Federal Trademarks Dilution Act]
getting to specific jurisdiction: (1) purposeful availment (2) arising from state’s forum or related
activities (3) reasonableness

1. Effects Doctrine
Effects felt in forum state (1) intentional actions (2) expressly aimed at the forum state (3) causing
harm, the brunt of which is suffered in forum state + something more that D directed activity towards
state

2. But for Test

P wouldn’t have been injured but for D’s conduct

3. Fair Play & Substantial Justice

+ Burger King reasonableness factors
Case for unreasonableness has to be very compelling

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M. Stream of Commerce| Nicastro v. McIntyre Machinery America (Albin,
S.C.N.Y., 2010)
Can be sued in a products liability action when stream of commerce
[machine blades cut off four fingers, subject to jurisdiction bc went to conventions in the U.S. to sell, tried
to claim didn’t bc had a separate U.S. distributor, wanted to sue in NJ]
minimum contacts doesn’t apply here, look to stream of commerce
ok to exercise personal jurisdiction if delivers into stream of commerce with expectation that they will be
purchased by consumers in the forum state
even did something more by going to conventions plus
also fair play and substantial justice bc how can you expect to sell in the U.S. but only be sued in U.K.

XVIII. Forum Choice

Consent: can waive by not objecting or answering complaint R12(h)(1)

A. Forum Selection| Carnival Cruise Lines, Inc. v. Shute (Blackmun, 1991)

Forum-selection clauses forcing individuals to agree to submit to jurisdiction in a particular place are
enforceable so long as they pass the test for judicial fairness.
[forum selection clause on a cruise ticket, found it should be enforced]
Dissent- Stevens: disparity of bargaining power

B. Venue
[R12(b)(3) improper venue]
28 U.S.C. § 1391, via statute
§ 1404 motion to transfer venue, where venue is proper but inconvenient
§ 1406 motion to dismiss or transfer, where venue is improper
Appropriate judicial district case may be filed
Administrative funnel- directs cases where parties have a connection or where events occurred
Not affected by 3rd parties added y impleader etc.
Must be raised in a timely manner or is waived but is not a constitutional requirement for a valid judgment
If venue is improper can transfer in the interest of justice instead of dismissing according to R12(b)(3)

C. Forum Non Conveniens

Forum not agreeing, via statute and codified common law
Often used when alternate forum is abroad, for federal
Cant dismiss under FNC without an alternative (adequate and available)
Discretionary device to avoiding litigation in a forum both inconvenient to D and far removed from
witnesses and evidence
Can consider public and private interest factors

XIX. Subject Matter Jurisdiction

[R12(b)(1) lack of subject matter jurisdiction]
Allocates power between state and federal courts
States can usually hear diversity and federal questions also unless there is exclusive jurisdiction
Dual sovereignty
Authority to adjudicate a particular type of suit, cannot be waived in fed court

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A. Article III, § 2
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of
the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting
ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime
jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two
or more states;--between a state and citizens of another state;--between citizens of different states;--
between citizens of the same state claiming lands under grants of different states, and between a state,
or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be
party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under
such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the
state where the said crimes shall have been committed; but when not committed within any state, the trial
shall be at such place or places as the Congress may by law have directed.

B. Federal Question § 1331

Arising under this Constitution, the laws of the United States
Does a suit meet the above?

1. Federal Ingredient| Osborn v. Bank of the U.S. (Marshall, 1824)

Court interpreted arising under in the court very broadly, asking whether its Constitutional
Just needed to form a potential ingredient of the original cause
Marshall’s test

2. Well-pleaded Complaint| Louisville & Nashville Railroad CO. v Mottley (Moody,

1908)
Federal question has to be based on a statement of the Ps claim, properly pleaded and cant be based on
a counter claim or Ds defense.
[couple got in railroad accident for negligence and settled for lifetime free tickets but then fed rule
banning free tickets]
original cause of action must arise under the Constitution
initial pleading must call for application of federal law
cant be based on defenses that are constitutional or federal questions, based on anticipated defenses

3. Holmes Test| Merrell Dow Pharmaceuticals Inc. v. Thompson (1986)

Mere presence of a federal issue as an element of a state tort does not warrant federal jurisdiction
about inclusive versus being prohibitory
Holmes Test: (1) federal law itself creates the cause of action (2) the vindication of a right under state
law necessarily turns on some construction of federal law

4. Embedded Federal Issue| Grable v. Darue (2005)

Whether the state law claim necessarily state a federal issue w/o disturbing a congressionally approved
balance of federal and state responsibilities
But can still get federal Q jurisdiction if it is an “embedded federal issue”
Test: (1) necessarily raises a stated federal issue that is (2) actually disputed and substantial, and (3)
federal forum would not disturb a balance between state and federal judicial responsibilitiesFederal
jurisdiction may be granted

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C. Diversity Question § 1332
Between citizens of different states…
Provides for adjudication of state law in federal court
Historically created because people were really biased about their local state so added neutrality
R12(b)(1) defense not waives, court can also bring itself

1. Complete Diversity
Everyone on P side of v. has to be different from everyone on D side. No sharing states on either side
but along one side can share
Citizens’ and permanent residents’ diversity is determined by place of domicile; corporations’ are
determined by INC. and nerve center

2. Amount in Controversy
Sum claimed by P in good faith has to be > $75k
If not good faith, has to be with legal certainty before dismissed
Doesn’t matter if they end up getting less than $75k, but court can impose costs if its less
If one P is over $75k on its own, doesn’t matter if joined Ps are less
If P is suing two Ds under diversity, each has to be above amount in controversy

3. Nerve Center| Hertz v. Friendly (Breyer, 2010)

Nerve center is where the corporation has headquarters or directs, controls, coordinates corp. business
[was suing for CA wage issues in CA state court but Hertz (D) sd they were from NJ so wanted
removal]
Interpreting “incorporation and of the state where it has its principal place of business” § 1332(c)(1)
Found nerve center to be located in NJ
Principle place of business = nerve center, before that it was easy to show CA as a principal place of
business bc of size
Shift back to a rule for ease/clarity and decrease in diversity jurisdiction/potential gaming
Breyer even says the ease of rule is worth the weird scenarios you might get with Kansas City example
Court may lose discretion, but will be more efficient and companies wont be able to forum shop by
arguing different stuff

XX. Supplemental Jurisdiction § 1367

Claims that are connected to claims already being entertained by the court
Worried about federalism vs. joinder worried about efficiency
Power over related claims especially involving joinder and intervener
Court has lots of discretion- can make policy arguments
Codifies Gibbs and Kroger
Analysis: (1) is there a constitutional basis for supplemental jurisdiction (proper underlying claim,
additional claim arises out of the same nucleus of operative fact) (2) statutory basis § 1367(a)/(b) (3)
foster judicial economy and fair to the parties § 1367(c)
§1367(c) may decline supplemental jurisdiction if (1) novel/complex issue of state law (2) claim
substantially dominates over those that court has original jurisdiction over (3) dismissed original
jurisdiction claims (4) exceptional/compelling circumstances
§ 1367(a) same case or controversy, common nucleus of operative fact; (b) § 1332 cases, still need
diversity over claims made by plaintiffs against parties under R14/19/20/24 (c) declining to exercise
jurisdiction (d) freezes statute of limitations in case it goes back to state court
can collateral attack after default judgment when P comes back to home state to get enforced, can bring
SMJ claim against enforcement action, if you don’t win; court will give “full faith and credit”
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A. Common Nucleus| United Mine Workers of America v. Gibbs (Brennan,
1966)
Same Case or controversy, federal Q
Codified: § 1367(a) authorized to exercise jurisdiction under same nucleus/(c) reasons to decline-
discretion; expanded § 1367 discretion for federal Q
[sued mine workers bc they were blocking his work with Southern Labor Union]
When state and federal claims derive from a “common nucleus” of operative fact and would ordinarily be
expected to try them all in one judicial proceeding that they should be tried as a whole and fed court can do
it

1. Pendent Jurisdiction
Stretches a fed court’s authority over a fed claim to encompass a state law claim arising form the state
facts

B. Complete Diversity| Owen Equipment & Erection Co. v. Kroger (Stewart,

1978)
Diversity case where P destroyed complete diversity § 1367(b)
[Kroger (IA) sued OPPD (NB) but then impleaded Owen, OPPD then got summary judgment so was
Kroger v. Owen but then they discovered Owen was from IA so tried to dismiss for lack of jurisdiction]
Claims don’t require an independent basis of federal jurisdiction
Codified: § 1367(b) prohibits joinder/supplemental claims if inconsistent in diversity cases; shrank
jurisdiction for diversity – cant get jurisdiction over a non-diverse party

1. Ancillary Jurisdiction
Expands the authority of a federal court entertaining a diversity action

C. Removal § 1441
28 U.S.C. § 1441 Actions Removable Generally- if there is original jurisdiction
allows D to remove some types of cases from state to federal court
in general D can remove if P could’ve filed in fed court in the first place
jurisdiction is intended to protect parties from partiality
authorizes removal only when federal courts had original jurisdiction
CANT remove when one of the parties is a citizen of the state in which action is brought for diversity cases
Cant remove to another state court or another district court in the same state
Can only move to federal district for the division/district current court is in
Venue rules don’t apply; applies to entire case
Case picks up where it left off in state court

XXI. The Erie Doctrine

All of these apply to § 1332 diversity questions bc if were federal questions under § 1331, would apply
federal law
StrategyPolicy of preventing forum-shopping: Is the outcome change so different that it will change
behavior ex ante?

A. Federal General Common Law| Swift v. Tyson (Story, 1842)

Interpreted “law of the several states” in the Rules of Decision Act to only apply to statutory state law and
not common law

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[did cancellation of debt count as consideration, no applicable federal statute existed to decide but there
was diversity]
Wanted to increase uniformity by having one true law that states could look to (so that states would become
similar and people wouldn’t shop between) but did the opposite, law was getting crazy
Increased discrimination by non-citizens against citizens
No equal protection under the law
People were moving and re-Inc. just to sue, created FederalState forum shopping

1. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co. (Butler, 1928)
Both cabs companies were from KY and B&Y had a monopoly. B&W sued in KY and won, didn’t have
diversity so couldn’t sue in federal court, B&Y re-INC. in TN and then sued B&W in KY fed court
where they would apply fed common law, manipulating citizenship

B. Law of the States| Erie Railroad Co. v. Tompkins (Brandeis, 1938)

Law to applied in any case is the law of the state;
Twin aims: 1) less forum shopping between states 2) avoidance of inequitable administration of the laws
(citizens of the state versus non-citizens of the state, discrimination based on citizenship + Byrd factors)
[Tompkins was walking along beaten path along train, got hit by something protruding, under PA law
would’ve been a trespasser but would’ve been licensee, brought action in NY]
nothing in the Constitution confers power to make own law
need to preserve autonomy of states
Concur-Reed: says don’t need to worry about unconstitutionality of Swift, can just look at interp. of “law of
the states”
Dissent-Butler: sd Swift has been around too long and is judicial activism
Must look to the body with the authority to make the rules
and if there is no state law on that topic, then can look at lower courts on same topic or predict state’s deci.

C. Outcome-Determinative Test| Guaranty Trust Co. v. York (1945)

ODT: If procedure would change the outcome, then should use state procedure
[state statute of limitations vs laches via federal “practice”]
substance vs. procedure continuum
outcome should be the same: does it affect means/manner OR actual result
policy- want to increase conformity and don’t want procedural rules to induce forum shopping
issues-can say a lot of stuff determines outcome which is bad for the strength of FRCP
broadens Erie by applying to procedural and not just common law

D. Outcome + Federal Interest| Byrd v. Blue Ridge Electric Cooperative, Inc. (1958)
Affirmed outcome-determinative test
Federal interest is separate from twin aims (Erie’s twin aims are more substantive)
[7th amendment issue- right to jury trial via Constitution]
Uniformity of outcome should yield to availability of jury trial- 7th amendment
Test: (1) is state rule a “substantive standard” (2) outcome determinative test – is the rule bound up with the
definition of the rights and obligations of the parties or is it merely a form and mode of enforcing the
statute (3) outcomes aren’t only factor, weigh federal interest against interest of uniformity- what is the fed
interest and why is it impt
even under outcome-determinative test, isn’t a problem

E. Federal Procedure| Hanna v. Plummer (Warren, 1965)

Federal courts shall employ the Federal Rules of Procedure, unless the rule in question is unconstitutional.
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[car accident, served according to R4 to D’s wife but MA says have to be served directly, D asked for sum
judgment for service process via FRCP (as approved by REA)]
Test: (0) Is there a conflict between federal and state (1) Practice? look at policy concerns (forum shopping;
inequitable administration under the law) (2) Laws/Rules? Make sure its been reviewed statute etc. (really
procedural; valid-cant abridge, enlarge or modify substantive rights)

F. The Modern Framework| Hanna

• Is there a conflict?
– Specifically this means: Is there a conflict between the state rule and a federal constitutional
provision/statute/rule/practice
– The provision/statute/rule/practice must be applicable in order to conflict
• Some rules that seem like they would be applicable have been held inapplicable
– Ex. Burden of proof on contributory negligence. Is Rule 8(c) applicable?
Consider the gloss on the rule for conflict but also realize that a rule is only what it is in practice either
way
• What is the source of the conflict?
– The Federal Constitution?
• Constitution Wins
• Judicial interpretation of the constitution --> Also Wins
– A Federal Statute?
• Does Congress have constitutional authority to pass the law?
• Hanna says anything that is arguably procedural (can rationally be categorized as
procedural) will be valid
– A Federal Rule of Civil Procedure?
• Is the Rule valid?
– 1) Does the rule “really regulate procedure?”
– 2) Does the rule “abridge, enlarge, or modify” a substantive right?
» Does the federal rule have a substantial impact on a state policy
unrelated to the litigation? (ex. attorney-client, privileges)
– A Federal Practice?
• Should we follow the state law or federal practice in light of the twin aims of Erie?
[Modified Outcome Determinative Test]
– Discouragement of forum-shopping
Avoidance of Inequitable administration of the laws

G. Hierarchy
(1) Constitution (2) Federal Statute: wins unless exceeds Congress Constitutional powers + rationally
capable of classification as either substantive or procedural rule (3) FRCP versus State law/rule: valid under
the Rules Enabling Act + abridge, modify, enlarge or impede state policy unrelated to the litigation (4)
Federal Practice versus State law/rule: ask Erie twin aims, forum shopping or equitable administration

H. 28 U.S.C. § 2072 Rules of procedure and evidence; power to prescribe

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and
rules of evidence for cases in the United States district courts (including proceedings before magistrate
judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken
effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under
section § 1291 of this title.

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XXII. Finality & Preclusion
Comes from federal common law
Due Process: can only use preclusion if party has had their “day in court”

A. Claim Preclusion
The thing has been decided; same parties (w/ exceptions), T/O (“claim”), final judgment “on merits,”
final judgment “on merits”, even if a certain issue hasn’t been litigated yet
Takes effect even if hasn’t gone through appeal or else people would re-litigate instead of appeal
Prevents litigating successive suits against the same person arising from the same event
If not, could lead to harassing the D, inefficiency, jury shopping, inconsistent results
All matterssame incident/transactionsame party
Final judgment forecloses successive litigation of the very same claim, whether or not re-litigation of the
claim raises the same issues as the earlier suit
Usually brought by D and P usually has to be the same in both cases
Final judgment, very same claim, parties
Exceptions only lie when there is adequacy of representation and parties know they are representing others
Can be used to enforce compulsory counterclaim waiver

1. Affirmative Defense R8(c)

(1) Prior suit that proceeded to a final judgment on the merits (2) present suit arises out of the same
claim as the prior suit (3) parties in both suits are the same, or in privity

2. Privity
Agents, heirs, trustees, tight familial relationships where claim is derivative or closely aligned
Doesn’t apply in cases where there is a separate claim (ex. separate negligence claims for multiple
family members in a tort)

3. Heacock v. Heacock (Mass. 1998)

[assault claim but wanted to use assault in divorce proceedings, tort action was dismissed in lower
court]
Issue preclusion must have actually been litigated and determined, and essential to prior actions’
determination
For claim preclusion, would’ve needed the opportunity to litigate fully in first suit

4. Res Judicata| Taylor v. Sturgell (Ginsburg, 2008)

Rejected “virtual representation” exception to general rule that was against precluding nonparties
[Herrick filed for airplane records and then Taylor tried and lower courts precluded him for virtual rep]
Herrick didn’t argue well- didn’t argue that cant go from being not a trade secret to a trade secret & also
didn’t argue that only sd it was a trade secret again after Herrick requested it (ex post facto-esque)
Reject no clear test D’s and that statute was created for public law
Was a federal issue for suit via statue and the FOIA, federal Q § 1331
Virtual Representation Test (5 factors): (1) identity of interests OR (2) adequate representation PLUS
(3) close relationship OR (4) substantial participation in the first case OR (5) tactical maneuvering on
the part of present party to avoid preclusion by the prior judgment
Don’t want people to all of a sudden be included in a faux class action they didn’t know about
6 privity exceptions to being the same parties-consent, legal relationship, adequate representation
(aligned interests, knowing they are representing others or courts kept it in mind), control,
proxy/agent (remanded on this issue), statute

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 matters if they have aligned interests, know they were representing others or courts considered it,
parties got notice, ex R23 requirements

B. Final Judgment on the Merits

Usually issues that are substantial, not procedure but not always, doesn’t apply to appeal

C. Issue Preclusion
Same issues, actually litigated & decided, decision was essential to the prior judgment, can be same or
different parties
Even if there is different breach or problem that makes a different claim, if it is the same issue, cant be
adjudicated or re-litigated again
Issue preclusion bars successive litigation of fact or law actually litigated and resolved in a valid court
determination essential to prior judgment
Usually used by P, wants to use a previous clm the way it was already decided (exception where civil went
before a criminal case bc burden of proof was easier)
Actually litigated and resolved, essential to prior judgment, doesn’t have to be same claim
In Re Goldstone- doesn’t matter how issue was prior litigated, just matters that they got a chance to do so
a jury is outcome neutral and is likely to reach the same result, only after unnecessary deliberations

1. Collateral Estoppel| Parklane Hoisery Co., Inc. v. Shore (Stewart, 1979)

Collateral estoppel- a judgment in one case prevents a party to that suit from trying the litigate the issue
in another legal action
[sued stockholder’s in class action for false statement- wanted damages, rescission of the merger,
recovery costs, SEC had already filed suit prior for injunction]
okays and defines offensive nonmutual CE, court has discretion to use
Discretionary factors when not allowed: (1)P could’ve easily joined earlier action (wait and see), (2)
party did not have incentive to litigate vigorously, (3) procedural rules were more restrictive in the first
place (tries to argue no jury-even though doesn’t work), (4) prior inconsistent judgments

2. Nonmutual Offensive Issue Preclusion

Offensive use of CE occurs when the P seeks to foreclose the D from litigating an issue the D has
previously litigated unsuccessfully in an action with another party
2 Ps, 1 D
Worried about DP here bc D never got to pick forum
New P wants to use something decided in first claim that would help P against D

3. Nonmutual Defensive Issue Preclusion

Defensive use occurs when a D seek to prevent a P from asserting a claim the P has previously litigated
and lost against another D
1 P, 2 Ds
P already lost on issue in first case and 2nd D wants to use that determination in second trial

XXIII. Class Actions

A. +/-
1. Advantages
Economical/not worth it otherwise, reaching global peace/resolve for D, serial claims might lead to
nothing left for later Ps, settlement, resources/lawyering, efficiency, consistent obligations, avoids
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 punitive damages over and over, knowledge, restrained litigation, finality/repose, audience/profile, can
serve as public policy to deter wrongdoing

2. Disadvantages
Day in court/due process, conflicts of interest, who is represented, awards and fees, notice isn’t
good/reach everyone/unclear, makes ADR less attractive, decreases individual control, defining the
group

B. Rule 23
1. Prerequisites R23(a)
Numerosity- class has to be too much for joinder
Commonality- common Q of law or fact
Typicality- claims and defenses are typical of the whole class
Representativeness/Adequacy- representatives fairly and adequately protect the interests of the class

2. Types R23(b)
Incompatible Standards: show it would create a risk of inconsistent or varying adjudications
Limited Funds: not enough money to pay
Equitable: homogeneity
Voluntary: opportunity to opt out

C. CAFA 2005| Class Action Fairness Act

Passed in order to decrease the number of state court class actions (defendant friendly action)
Minimum diversity is ok ≥1 P is diverse from ≥1 D
Total AIC>$5M
Class >100 people
Codified in 28 U.S.C. § 1332(d)
Exception: local controversies and certain types of cases SMJ, some government entities and certain
corporate and securities
May: when between 1/3 & 2/3 of class members are from the state and the D is from the same state
can remand to state court
Must: when > 2/3 of class are from state and a primary D is and injuries occurred in that state and
there has no been no similar class action in the preceding 3 years § 1332(d)(4)
Problems: plaintiffs try to get at the 9th circuit, issue of showing that the claim is under $5M without
showing liability- so D’s don’t seek removal, some Ps sue in groups of 99 to avoid fed court

D. Relations to other Topics

1. SMJ
CAFA only applies to § 1332, alters law so that § 1367(b) doesn’t exclude (that only one P needs to
satisfy AIC), minimal diversity

2. Discretion
May direct notice but must for voluntary class actions
Local controversies may vs. must

3. Notice
Attempt to notice but sometimes need personal notice for specific involved people
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 Only have to give notice sometimes for mandatory class actions
Supreme Court has avoided the Q
Mullane Test: notice by U.S. mail is the constitutional minimum; must make a reasonable attempt to
provide notice, the notice itself doesn’t actually matter

4. Joinder
Isn’t possible here, would be soooo many interests and difficulties and stories and complications

5. Remedies
is everyone going to get just or equitable relief
parties that weren’t even involved might be effected by equitable relief

6. Due Process| Personal Jurisdiction

Focus on P’s due process here, normally it would be focused on the Ds
don’t need PJ over an absent P bc its assumed they were notified and could’ve opted out- but not always
true like in mandatory class actions

7. Settlement
Has to be a net benefit for P and be fair between in state and out of state
In general, no settlement when parties’ expectations diverge
Court has to approve, people get additional notice, hearing, and can opt out of the settlement (provides
additional DP and protections)

E. Anchem Products, Inc. v. Windsor (Ginsburg, 1997)

Existing class representation protections?
Settlement only plays a small role in determining the propriety of a class certification. A court
considering a class for settlement need not consider whether certification would present intractable
management problems at the trial stage, but the remaining requirements of R23 must be met.
[consolidate asbestos claims; presented complaint/pleadings/settlement all at once]
found there wasn’t enough commonality due to different illness levels of people (some not sick yet,
some with cancer), not enough adequacy of representation, typicality
Dissent: Breyer, wrong standard of review to view +/- of settlement

1. Ortiz v. Fibreboard Corp.

Souter, denied a limited fund settlment bc was not the correct function of R23(b)(1)(B)
Didn’t seem like there was actually an inadequacy of funds
Dissent- Breyer need to be creative in making judicial moves since legislature still hasn’t done so

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