I.

SUBJECT MATTER JURISDICTION

4 Questions to Ask to Determine Subject Matter Jurisdiction:
1) Is it a state court? No Limits Besides Exclusive Federal Statutes 2) Federal Court: a. Federal question? Art. III + 1331 + exclusive federal statutes i. Cause of Action arising under federal law? 1. Does it meet the constitutional standard? 2. Does it meet the statutory standard? 1331 ii. If it is a statute: 1. Cort v. Ash Test? 2. If no private right of action stated/implied: Is there a substantial federal interest/construction required? b. Diversity of Citizenship + > $75,001? i. Complete diversity? (Strawbridge) ii. Citizenship of parties on day of institution? iii. Amount in controversy? Can claims be aggregated? c. Supplemental Jurisdiction? i. CNOF + 1367 3) Removal Applicable? 4) Has Anyone Collaterally Attacked? AND REMEMBER: Neither Party Can Waive SMJ!

1. STATE COURTS: General Jurisdiction

Lacks v. Lacks (NY, 1976): state courts are courts of general jurisdiction (original, unlimited, and unqualified jurisdiction) 1) Although state jurisdictions may choose (for convenience purposes) to divide their courts into matrimonial, civil, etc., all state courts have the power to hear any case 2) This excludes areas of exclusive jurisdiction of the federal courts (copyrights, patents, bankruptcy, 3) FELA cases can always be tried in the court of the employees choosing 2. FEDERAL QUESTION JURISDICTION: Article III + 1331 + Exclusive Federal Statutes A) Applicable Laws/Statutes: 1) Article III: Judicial Power shall extend to all Cases arising under the Constitution, the Laws of the United States 2) 1331: The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States 3) 1334: bankruptcy (exclusive); 1337: commerce, antitrust (original); 1338: patents, copyrights (exclusive), trademarks (original); 1343: some civil rights; elective franchise (original); 1345/1346: US is a P/D (original, except for money or land title) B) What does arising under mean? 1) Ingredient Test: Osborn v. Bank of US (1824): Bank of US brought suit in federal court to enjoin state auditor of Ohio from collecting a tax alleged to be unconstitutional

2)

3)

4)

5)

(a) Ingredient test The act *of Congress+ is the first ingredient in the case, is its origin, is that from which every other part arises (i) Very expansive view of federal jurisdiction under Article III (Constitutional Std) (b) Jurisdiction granted Well-Pleaded Complaint: Louisville & Nashville R. Co. v. Mottley (1908): Railroad gave Mottleys free transportation for life, but stopped giving passes because act of Congress forbade free transportation on railroads (a) Well Pleaded Complaint Rule (i) Federal Issue must arise at genesis, not as a possible defense (ii) Must be a necessary component of the cause of action (law that creates it) (b) Narrower interpretation of 1331. (Statutory std) (c) Jurisdiction denied (raised by court) Creates Cause of Action: T.B. Harms v. Eliscu (1964): copyright infringement issue (a) Creates cause of action standard applied (from American Well Works, Holmes) (i) Here, case relied on contract law didnt turn on the copyright issue. (b) Jurisdiction Denied Statutory Federal Question Standard: (a) If remedy for cause of action is granted by federal law (expressly or implied) (i) Cort v. Ash Four-part test (1975): (a) Class of plaintiffs? (b) Legislative intent (implicit or explicit)? 1. If the statute is silent either say that it means that Congress did not intend a private right of action or say that it allows for flexibility (c) Consistent with underlying purpose to imply remedy for P? (d) Is this traditionally state law (fed law would be inappropriate)? (ii) IF NO implied private right of action: (a) If the cause of action requires determination of construction/application of federal act/statute (and substantial federal interest), then federal question. (b) Check federal interest in interpreting law vs. state interests in case. Statutory Federal Question Standard Applied: (a) Is there a necessary interpretation of federal law? (i) Smith v. Kansas City Title & Trust (1921): shareholder sued to enjoin Trust company from investing in federal bonds because Act of Congress authorizing their issuance was unconstitutional (a) Cause of action created by state, but right to relief depended on construction (b) If it depends of Construction of US laws, federal question 1. Here, interpretation of bonds create jurisdiction 2. Substantial federal interest in resolving tax laws (ii) Moore v. Chesapeake & Ohio Railway (1934): cause of action brought under state Employer Liability Act, but key issue is whether defendant failed to comply with federal act (a) Despite federal statutory question, no jurisdiction existed. (b) Contradicts Smith, but may be reconciled because not a great chance of national significance (less federal interest) (b) Is the remedy granted by federal law? (i) Merrell Dow Pharmaceuticals Inc. v. Thompson (1986): Plaintiffs sue Merrell Dow in state court because drug caused children to be born with multiple deformities; Merrell Dow removed case to federal court for federal question jurisdiction; claim

filed under Ohio negligence law, but misbranding under federal act in one count (Private right of action must be contemplated by federal statute or regulation for this to qualify as a claim arising under) (a) Ultimately a fight between those who believe it was closer to Smith and those who believe it was closer to Moore (5 Stevens/4 Brennan Decision) 1. Majority Unlike Smith no great federal interest; Similar to Moore not much impact on the federal government. (b) Ps right to relief must depend necessarily on a question of federal law 1. Here, statute did not intend private remedy (uses Cort v. Ash test), so no jurisdiction (c) Dissent: Uses Smith to argue that there was interpretation of federal law necessary. (ii) Empire Health v. McVeigh (2006): Statute does not create federal right of action (a) When a statute is silent, we can generally assume that Congress did not intend to extend a right of federal jurisdiction. (iii) Grable & Sons Metal Products v. Darue Engineering & Manufacturing (2005): IRS seized property belonging to Grable and sold property to Darue; Grable claims Darues title is invalid because IRS failed to notify Grable of seizure in manner required by statute (personal service) (a) Even though no federal cause of action, can be tried in federal court because nation interest in a federal forum is great (b) Clear interest of the government in land sale/tax litigation trumps any state title law (c) Compared to Merrel Dow: 1. Grable turns on federal conduct (obviously, a federal interest) 2. Merrel Dow turns on the behavior of the labeling company (insignificant) (c) Current Law: A state law private action that alleges a violation of a federal statute arises under the laws of the US only if Congress intended to provide a federal remedy for the statutory violation (or has substantial interest).

YES JURISDICTION
Osborne (Bank ingredient test) Smith (bonds) interpretation of fed law Grable (taxes) national interest + no problem with division of state and federal law

NO JURISDICTION
Moore (State interests trump) Mottley not within cause of action Eliscu (copyright) did not create cause of action Merell Dow (branding drugs) no federal interest + state division of labor

3. DIVERSITY OF CITIZENSHIP AND AMOUNT IN CONTROVERSY: 1332 + $$$

A) Applicable Law/Statutes: 1) Art III, Section 2: judicial power shall extend to all cases arising between citizens of different states. 2) 1332 provides neutral forum for people of different states to litigate. (a) Citizens of different states; citizens of a state and citizens or subjects of a foreign state; citizens of different states and in which citizens or subjects of a foreign state are additional parties; a foreign state, as P and citizens of a state or different states. B) Diversity of Citizenship:

1) There must be Complete Diversity: (a) Strawbridge v. Curtiss (1806): establishes complete diversity bright-line rule (i) Every plaintiff must be from a different state from each defendant (ii) If diversity exists due to potential prejudice against an out-of-state resident, that prejudice cant exist if the same state is on both sides of the dispute (iii) Not constitutional statutory interpretation of Federal Judiciary Act of 1789 (b) Three Exceptions: (i) Interpleader (1335): Diversity as long as two claimants are citizens of different states (ii) Multi-forum Multiparty Act (1369): In mass disasters involving at least 75 people, diversity exists as long any 2 people involved in mass disaster come from different states (iii) Class Action Fairness Act (1332): If any member of the class is diverse from any defendant, federal courts have original or removal jurisdiction as long as the aggregate value of the classs claim >$5 million 2) 1359: No constructed diversity (Rose) 3) Determining Diversity: (a) Citizenship: Determined at the time the action is filed (i) Individuals: Domicile = citizenship 1) Domicile = physical presence PLUS intent to remain for indefinite future (a) Acquired domicile remains until both factors co-occur (b) Common multiple homes or work in one state/live in another (c) Need to look for center of gravity of life (Zuckerberg) 2) Mas v. Perry (1974): citizenship = domicile (a) Students do not change their domicile to the state of their school if they do not intend to remain there past graduation (b) Even if you dont intend to return home, you are domiciliary of your home state until you acquire a new domicile 3) Forks in the Facts: (a) Stateless persons cannot invoke diversity jurisdiction (b) American citizen who is a domiciliary of a foreign nation is not a domiciliary of any state cannot invoke diversity jurisdiction (Elizabeth Taylor) B) Alien: alienage jurisdiction (Art. III) 1) Aliens as both plaintiff and defendant: cant sue in US courts 2) Permanent resident aliens are domiciled in the state where they live for jurisdictional purposes 3) If aliens are permanent residents of the same state, cant sue in federal court C) Corporations: state of incorporation (often Delaware) + principal place of business 1) Principal place of business: [Will have to argue for one of 3 tests cover them all] (a) Muscle test manufacturing/service provision (b) Nerve Center test executive headquarters (c) Total Activities test case by case determination of center of gravity 2) Corporation = 2 people, although state of incorporation and principal place of business may be the same

D) Unincorporated Associations: cumulated citizenship of all members 1) Includes labor unions, law firm partnerships and fraternal organizations 2) If an association has members in all 50 states, it cannot sue or be sued in federal court under diversity jurisdiction (only federal question jurisdiction) (See Carden v. Arkoma) 3) NOTE: different when defendant in class action E) Representative actions: 1) Includes: infants, infirm, deceased; class action, trusts, shareholders 2) Historically, citizenship = representative, not represented (1332(c)(2)) (a) Problem: fabricate diversity by choosing an out-of-state representative 3) Now, representative is deemed to be citizen of state of decedent/infant/incompetents (a) Exceptions trusts, class actions, shareholder derivative suits representatives citizenship still applies F) Judicially developed exceptions to diversity jurisdiction: Probate and Matrimony 1) Deeply embedded in state policy, expertness and competence leave it to states C) Amount-In-Controversy: 1) Accept damage allegation unless it is shown to a legal certainty that amount cannot be reached (AFA Tours v. Whitechurch (1991) good faith standard) (a) Injunctive relief makes determining the value of a claim difficult (i) Can guess at the value from either the plaintiff or defendants viewpoint (courts are divided on what is appropriate) 2) Aggregation of claims: (a) Individual plaintiff can add his unrelated claims up against an individual defendant to come up to amount in controversy requirement (b) Cannot aggregate multiple plaintiffs claims against a common defendant or single P against multiple Ds (i) But, if multiple plaintiffs rights are indivisible (contract, inheritance, etc.), then you can aggregate their claims common and undivided interest 3) Class actions: (a) Historically, each individual claim must satisfy amount in controversy minimum (b) But: Class Action Fairness Act: $5 million aggregation for federal jurisdiction (+ minimum diversity) 4) Amount in Controversy: Example of Congresss ability to limit federal jurisdiction (not in Article III or Constitutional at all) just for docket clearing purposes. 5) Excludes costs and interests includes attorneys fees

2. SUPPLEMENTAL CLAIMS IN FEDERAL COURTS: 1367 And CNOF

A) 28 USC 1367: (a) In action where Federal courts have original jurisdiction, they have supplemental jurisdiction on all claims that are part of the same case or controversy under Article III, (excluding exceptions in b and c) *Codifies Gibbs really means CNOF for all intents and purposes]

(i) (Some question here- If C&C is broader than T&O then all 13As are

supplemental, or if T&O is broader possible some 13As arent supplemental)

(b) Diversity [ 1332] NO Supplemental IF [Kroger] (i) ORIGINAL PLAINTIFF brings claim under: (a) Rule 14 (Third Party) (need separate state action) (b) Rule 19 (Compulsory Joinder of Parties) (remedy prejudice!) (c) Rule 20 (Permissive Joinder of Parties) (d) Rule 24 (Intervention) (ii) AND, other requirements of 1332 arent satisfied (a) Textually: both Amount in Controversy and Diversity (b) In practice: Really, just diversity [Allapattah] (iii) Categories immune to this exception: Rule 23 (class actions), Rule 13(a)

(a) If defs counterclaim is compulsory under Rule 13a (same T&O), then court will allow ancillary jd over the counterclaim (b) If counterclaim is permissive under Rule 13b, it will not
(c) District courts may decline to exercise supplemental Jur. IF (i) Novel/complex issue of state law (ii) Claim predominates over the initial claim that serves as basis for SMJ (iii) District court has dismissed all claims over which it has J (iv) Exceptional circumstances with other compelling reasons (a) Remember: An incidental federal question will not be enough if the claim is primarily state-based (no fabricating federal q jurisdiction) (d) Supplemental claim tolls while waiting for federal judge to rule, and for 30 days after dismissal. 2) Remember: (a) If you have original jurisdiction over a proper counter/cross/claim etc., do not invoke supplemental jurisdiction (make sure there is a problem with diversity or federal question) (b) You can append a state claim to federal claim in fed court if: (i) 1367(a) CNOF (ii) Federal case predominates (c) Supplemental Jurisdiction is always discretionary (d) WATCH OUT for cases that invoke federal language but arise under state law

(e) 1367 ONLY applies to SMJdoesnt satisfy PJ or service of process

3) Old way: pendant and ancillary jurisdiction (a) Pendant: when P. appends a claim lacking an independent basis for fed SMJ jurisdiction to a claim possessing such a basis (b) Ancillary: when either P. or D. injects a claim lacking independent fed SMJ via joinder (counterclaim, cross-claim, 3rd party claim) that comes from same T&O as original claim that does have fed SMJ B) Supplemental Beginnings:

1) Hurn v. Oursler (SCOTUS, 1933): P sued for copyright infringement (federal) and unfair competition (state). Federal claim was rejected on the merits, but the court still had jurisdiction to decide the state claim. 2) United Mine Workers v. Gibbs (SCOTUS, 1966): D was hired as a mine superintendant/coal hauler by a company that had just fired 100 UMW workers. UMWs local violently prevented the opening of the mine. D lost his job, sued under TN common law and Congress Labor Relations Act; trial court set aside damages for second claim. Yes pendant jurisdiction. (a) CNOF standard basically redefined what a Constitutional case or controversy is, for the purposes of those words in Art. III codified later into 1367(a). C) Pendant Party Jurisdiction: (a) Aldinger v. Howard (SCOTUS, 1976): P sued two county employees under civil rights act, but couldnt get county except on state law claim; P argued CNOF. No pendant J, cant join entirely different defendant on a claim over which there is no independent basis of federal jurisdiction (b) Owen Equipment v. Kroger (SCOTUS, 1978): P sued power company, who brought in D (14a), then won on summary judgment, destroying diversity. No more SMJ; analysis must extend beyond Gibbs. (i) Becomes 1367(b) (c) Finley v. US (SCOTUS, 1989, Scalia): Federal claim, combined w/ state-law claim against non-diverse D. Although pendant claim J is OK, pendant party claim is not, per Aldinger. (i) Jurisdiction created by two things (a) Const courts capacity to take it (b) Act of congress must supply it. (ii) NOT GOOD LAW! Led to the enactment of 1367(b) (d) Exxon v. Allapattah (SCOTUS, 2005, Kennedy): If 1 P meets AoC, 1367 authorizes supplemental jurisdiction over related class action claims. (i) Overturns Zahn, which refused to apply 1367 to class actions. (e) Executive Software N. Am. v. United States Dist. Court (9th Circuit, 1994): District court erred in remanding pendant state claims without relying on 1367. (f) Recently: Judiciary has become more and more conservative about asserting supplemental jurisdiction

D) Public Policy Reasons for Supplementary Jurisdiction: 1) Pro: Efficiency (we have everyone here), Fairness to either party so they dont have to fight on two fronts, Dont dissuade people from exercising a federal right by allowing them to combine their claims only in state court. 2) Against: Supplemental jurisdiction expands the scope of the federal courts at the expense of federalism and state courts. It also allows clever lawyers to use supplemental jurisdiction as a facade
3. CHALLENGING SMJ: A) How to do: 1) Direct Attack

(a) Rule 12(b)1: motion to dismiss for lack of SMJ (b) Rule 12(h)3: Court MUST dismiss if it finds lack of SMJ (c) PJ v. SMJ (i) Ruhrgas v. Marathon (SCOTUS, 1999): D removes. District court dismisses for lack of PJ before considering whether it has SMJ. B/c both are constitutionally required, no reason why one must be decided first. 2) Collateral Attack (against judgment enforcing diff. outcome) (a) Judgment in contested action is beyond collateral attack UNLESS (i) No justifiable interests of reliance (ii) One of three: (a) SMJ was so silly that entertaining the action was a manifest abuse of authority. (b) Judgment would substantially infringe on other tribunals authority (c) Tribunal lacked capability to make informed determination of jurisdiction (b) Default judgment collateral attack allowed on: (i) SMJ (ii) PJ (iii) Notice.

II. PERSONAL JURISDICTION

Five Questions to Ask to Determine Personal Jurisdiction: 1. Is there a traditional base of personal Jurisdiction (cover all 4)? 2. If theres no traditional base, does the long-arm statute apply (specific jurisdiction)? 3. If Long-arm statute applies, is its application Constitutional? a. Go through general information specific to hypo given b. Minimum contacts/General Stream of Commerce (Shoe, McGee, Gray)? i. Effects Test (Calder)? ii. Purposeful Availment (Keeton, not Hanson, Kulko, or Volkswagen)? c. Fairness (Burger King, Four Factors Asahi)? i. Stream of Commerce PLUS (Purposeful Direction Asahi) 4. If no specific jurisdiction, is there general jurisdiction? a. Standard for general jurisdiction is high (need continuous and systematic activity Perkins, not Helico) (Side Q: If technology, see Pebble Beach to determine activity level) 5. If no other way quasi in rem jurisdiction (Shaffer and same minimum contacts test)

1. TRADITIONAL BASES FOR JURISDICTION Physical Presence Domicile Agency Consent

A) Territoriality and Physical Presence: 1) No state can exercise direct jurisdiction and authority over persons or property without its

territory (a) Pennoyer v. Neff (1877): Oregon seized Neffs (whereabouts unknown) property through publication. Neff was not in Oregon, and could not serve a non-resident via publication 2) But a state can always exercise territoriality over someone within its borders (a) Burnham v. Superior Court (1990): D (NY resident) in CA on business, where divorced wife sued him for personal reasons. SCOTUS said that territoriality is based on state sovereignty and should be retained. (Scalia tradition!) (b) Grace v. MacArthur (1959): Passenger flying over Arkansas was legally served (c) Exception: If you are in the state involuntarily (plane emergency landing ex) 3) A corporation may be considered present if it is doing business in a state. B) Domicile: 1) Like citizenship in SMJ but dont necessarily need physical presence (Florida is my domicile because I am a FL citizen, until I intend to move to NY permanently). C) Agency 1) If you can grab the agent, you can grab the individual 2) Examples: Corporate agent, partnership agent, or an individual citizens agent 3) Szukhent: Flo Weinberg serves as agent for service of process D) Consent: 1) Express: (a) M/S Bremen v. Zapata Off-Shore (1972): Provision in contract stipulates that all disputes were to be litigated before London Court of Justice; Zapatas rig damaged in storm off Florida sues in Florida federal court (i) American action is dismissed consented to jurisdiction in London (ii) Expansion of American industry internationally is harmed when, in the face of contracts that say otherwise, Americans insist on the parochial concept that all disputes should be resolved in our courts under our laws (b) Carnival Cruise Lines v. Shute (1991): Shutes pays local travel agent for cruise from LA to Mexico; no sense of Florida being involved in this transaction; Contract says that all disputes will be litigated before a court in Florida (i) Supreme Court upholds enforceability of forum-selection clause sanctity of contract (a) Cruise ship carries passengers from all over a mishap could subject the company to litigation in many different fora (b) Ex ante establishment of forum reduces confusion, cost, and judicial resources devoted to determining correct forum (may even reduce fares) (c) Understandable that entities want predictability, comfort with location 2) Implied: (a) Hess v. Pawloski (1927): The use of a highway by a non-resident is equivalent of the appointment of the Dept. of Motor Vehicles as an agent for service of process. (i) Facts: Hess (D), driver from PA, negligently struck and injured Pawloski (P) on a Mass. Public hwy. Process served to registrar of state as an agent. Hess received actual notice. Hess filed plea in abatement (contests place, time, or method of asserting the claim). =Service valid. (ii) A move away from literal interpretation of territoriality in Pennoyer.

2. EXPANDING THE BASES:

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Minimum Contacts Equaling Fair Play and Substantial Justice

A) International Shoe v. Washington (1945) B) Facts: International Shoe based in MO, incorporated in DE and has no office in Washington. Makes no contracts for sale/purchase of merchandise, no inventory there (they rented hotel rooms and showed one shoe to the customers); Employed salesmen in Washington; Salesmen have no power to contract, but displayed samples and solicited orders (Presence game); State sued for failure to contribute to WA unemployment compensation scheme. C) RULE: When contact with the state is systematic and continuous and the company receives benefits and protection of the laws of the state 1) Four categories of cases: Type of Conduct Nature of Cause of Jurisdiction Examples Action (1) Continuous and Arises from that Specific Jurisdiction International Shoe, Systematic Conduct McGee, Burger King (2) Continuous and Does not arise from General Jurisdiction Perkins v. Benguet Systematic that Conduct Mining (3) Isolated and Arises from that Specific Jurisdiction Yes: Hess v. Pawloski, Sporadic Conduct MAYBE (depends on Gray, the nature and quality No: Volkswagen, of the act) (Does Asahi anticipate being hailed into that forum?) (4) Isolated and Does not arise from No jurisdiction (not Hanson v. Denckla, Sporadic that Conduct fair play) Helicopteros 2) Minimum Contacts Equaling Fair Play and Substantial Justice = (a) Two part test: (i) Does the defendant have minimum contacts with the forum state (quality and nature of activity)? (ii) If so, would asserting personal jurisdiction comport with fair play and substantial justice (14th Amendment and fair administration of law)? (b) Split burden on 2 halves of Shoe test: (i) On question of minimum contacts, burden is on party asserting jurisdiction (ii) On question of reasonableness of forum, distant forum abuse, burden is on party denying jurisdiction (c) Remember: The cause of action (minimum contact) must be related to the forum = arising in that forum (d) Minimum contacts performs 2 functions: (Worldwide Volkswagen) (i) Protects defendant against burden of litigating in distant/inconvenient forum (reasonableness/fairness concern) (ii) Ensures that states do not reach beyond limits imposed on them as coequal sovereigns (e) Is it reasonable for the forum state to assert jurisdiction over the defendant? [Fair play and substantial justice inquiry] (i) Burden on defendant of being haled into foreign states courts, while always a primary concern, must be weighed against other relevant factors

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(ii) Forum states interest in adjudicating dispute (iii) Plaintiffs interest in convenient and effective relief (iv) Interstate judicial systems interest in obtaining efficient resolution of controversies (v) Shared interest of states in furthering substantive social policies

3. SPECIFIC JURISDICTION AND STATE LONG-ARM LAWS: Cause of Action Must Relate to Or Have Specific Connection With Forum
A) General Information: 1) Critical Element: Designated act HAS to occur in the forum state, or its effects must be felt in the forum state. 2) A long arm jurisdiction is specific jurisdictionit arises out of a particular connection between the out-of-state D and the forum. 3) State Long Arms: Two Questions for any long arm inquiry: (a) Statutory inquiry: (i) Is the particular act encompassed by the long arm statute? (b) Constitutional Inquiry: (i) If the conduct satisfies the words of the long arm statute, is the subsequent assertion of jurisdiction constitutional? 4) Types of Long Arms: (a) Enumerated Long Arms (i) E.g. New York: (1) transacts business, (2) tortious act within the state, (3) tortious act outside the state causing injury within, etc. (b) Constitutional Boundary Long Arms (i) E.g. Rhode Island (10-12 other states): everyone having necessary minimum contacts with RI shall be subject to jurisdiction not contrary to the Constitution; every jurisdiction question is a constitutional question B) Minimum contacts through Stream of Commerce (Gray, McGee) 1) Gray v. American Radiator (IL, 1961): Grays water heater exploded; claims that Titan Valve Manufacturing had negligently constructed the safety valve; Titan does no direct business in Illinois and has no agent there; sold valves to American Radiator outside of Illinois (a) Titans association with Illinois, by means of selling its products for ultimate use there, are sufficient to support exercise of jurisdiction in line with Due Process Clause (b) Titan inserted its product into the stream of commerce liable wherever it lands (c) General principle: if a corporation sells its products for ultimate use in another state, it is not unjust to hold it answerable there for damage cause by defects in its products (d) Continuous and systematic contact is not necessary (Shoe) (e) Defendant engaged in conduct such that he has invoked the benefits and protections of the law of the forum state

(f) Two Key Questions: (i) Was the tortious act committed in forum state?
(a) Here, court says that tortious act occurs where the consequences (g) Foreseeability is enough here to infer that there is fair play and justice 2) McGee v. International Life (1957): Franklin, Californian, and International Life (Arizona)

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transacted business by mail until Franklins death in 1950; International Lifes only contact with California was Franklins policy; International Life refused to pay McGee, beneficiary, upon Franklins death (a) Suit based on a contract that had substantial connection with California was sufficient for purposes of due process (b) Follow-up acts by mail (management of policy/premiums paid from California) created a relationship and direct benefit for International Life (from genesis) (c) California has interest in providing means of redress for its residents when insurers refuse to pay (d) Residents would be at severe disadvantage if forced to follow insurance company to distant state to hold it legally accountable (e) California highly involved in its insurance regulations sovereignty issue (state interest) (i) Inconvenience for insurer does not amount to a denial of due process C) Effects Test (Calder) Something more is needed than a mere foreseeable effect in forum state 1) Committed intentional act 2) Expressly aimed at forum state (individualized targeting) 3) Cause harmed, brunt of which is suffered/known to be likely to be suffered in forum D) Purposeful Availment (Keeton, not Hanson, Kulko or Volkswagen)? 1) Keeton v. Hustler (1984): Plaintiff (NY resident) brought a libel suit against the magazine (Ohio corp.) in New Hampshire (because of lenient statute of limitations laws). Hustler sells 10,000 15,000 magazines a month. There is jurisdiction. (a) Reminder: Courts do not require a plaintiff to have minimum contacts. The defendants intentionally acted in the forum. The issue is personal jurisdiction, not choice of law. (a) The business Hustler conducts is not random, isolated or fortuitous. Regular monthly sales establish minimum contacts 2) Hanson v. Denckla (1958): Donner (PA) established a trust in Delaware and named DE bank as trustee; Donner moved to Florida, executed her will there, and changed the beneficiaries of the trust; Donner died in Florida; 2 daughters claimed that appointment of beneficiaries of trust was ineffective; actions pending in both Florida and Delaware (a) Because trustees contacts with Florida were less than minimal, Florida could not exert jurisdiction over it as an indispensible party (b) Since Florida had not obtained personal jurisdiction over indispensible party to action, Delaware was justified in refusing full faith and credit to Florida decree (c) However minimal the burden of defending in a foreign court, a defendant may not be called upon to do so unless he had minimum contacts with state (i) Cause of action does not arise out of acts done in the forum state (d) Bank never purposefully availed itself of the privilege of conducting activities in Florida (did not invoke benefits and protection of its laws) (i) First case that indicated that SCOTUS might not move toward national jurisdiction (e) Compare McGee: International Life knew they made a contract in CA at the beginning (i) Here, no volitional contact with Florida Donner moved to Florida after trust created (ii) Must be volitional, cognitive, and beneficial (not an involuntary shift) 3) Kulko v. Superior Court (1978): New York divorce, wife and now 2 kids live in California;

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Wife wants readjustment of child support payments and brings suit in California (a) California does not have personal jurisdiction over husband (b) Husband buying his daughter a ticket to California is not purposefully availment (c) Merely causing an effect in the forum state without purposeful availment does not support jurisdiction (d) Policy interest: do not want to impose an unreasonable burden on family relationships (i) Cause of action arises out of personal, domestic relations, not commercial transactions 4) World-Wide Volkswagen v. Woodson (1980): Robinsons, NY residents, purchased Audi from Seaway Volkswagen; while passing through Oklahoma, another car struck their Audi in the rear; World-Wide Volkswagen only does business in NY, NJ and CT; Seaway only does business in NY (a) World-Wide and Seaway have no contacts, ties or relations with state of Oklahoma, so Oklahoma courts cannot assert in personam jurisdiction over them (no minimum contacts) (i) Foreseeability (that the car might travel to other states) alone is not enough to establish jurisdiction (b) Defendants connection with forum state must be such that he reasonably anticipates that states courts to assert jurisdiction over him (c) Defendant need stable understanding of jurisdictional consequences in order to structure conduct (d) If no minimum contacts, plaintiff and state interests do not come in as balancing factors (e) Affirmation of minimum contacts requirement, but also allows other relevant factors to tip the balance: (i) Forum states interest in adjudicating the dispute (McGee) (ii) Ps interest in obtaining convenient, effective relief (Hess) (iii) Interstate judicial systems interest in obtaining the most efficient resolution of controversy. (iv) States shared interest in furthering social policy. E) Fairness (Burger King, Four Factors) 1) Burger King Corp v. Rudzewicz (1985): Rudzewicz is a Burger King (FL corporation) franchisee in Michigan; day-to-day management of franchisees conducted in Michigan; contract provides that franchise relationship is established in Miami and governed by Florida law; monthly fees go to FL; BK sues for failure to pay in Florida federal court (a) Rudzewicz purposefully availed himself of the benefit and protections of Floridas laws by entering into contracts expressly providing that those laws would govern franchise disputes (b) Defendants conduct and connection with state are such that he should reasonably anticipate being called into its courts (c) Once decided that a defendant purposefully established minimum contacts with forum state, courts must determine whether the assertion of personal jurisdiction comports with fair play and substantial justice (minimum contacts alone is not enough) (i) Weigh facts of each case: burden on defendant, forum states interest, etc. (ii) Inconvenience may be so significant as to achieve constitutional proportions (not here) F) Stream of Commerce PLUS (Purposeful Direction Asahi)

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1) Asahi Metal Industry v. Superior Court (1987): Zurcher lost control of Honda motorcycle on the highway in California; Accident caused by sudden loss of air and explosion in rear tire; Asahi (Japan) made valve on tire; Cheng Shin (Taiwan) made tire; Cheng Shin filed crosscomplaint seeking indemnification from Asahi; Zurchers claim settled only Cheng Shin v. Asahi remains to be settled (a) Court splits: 4 v 4 v 1 NO law regarding minimum contacts (b) Asahi never purposefully availed itself of the California market - personal jurisdiction over Asahi by Superior Court of California exceeds limits of due process *OConnor+ (i) Stream of commerce + additional conduct of defendant = activities purposefully directed toward the forum state (ii) Not enough that a foreign corporation be aware that a component would reach the forum state in the stream of commerce (c) Stream of commerce is sufficient [Brennan] (i) As long as a participant in commerce is aware that the final product is marketed in the forum state, the possibility of a lawsuit cannot come as a surprise (d) Unreasonable and unfair for California to exercise jurisdiction over Asahi: (i) Asahi test for holistic evaluation: (a) Burden on the defendant severe distance from Japan and foreign judicial system (b) Interests of the forum state slight two foreign companies (c) Ps interest in obtaining relief - Cheng Shin has not demonstrated that it is more convenient for it to litigate claim in California than in Japan or Taiwan (d) Interstate judicial systems interest in efficient resolution of controversies (e) Shared Interest of several states in furthering substantive social policies (e) Burden on defendant is Interests of plaintiff and forum are (f) Forum states interest is mostly gone all that remains is claim between two foreign corporations (i) Avoid getting involved in bilateral international issue 2) ON EXAM: Discuss Ginsberg vs. Brennan approach! 3) Parry v. Ernst. Home Center Corp. (1989): P injured splitting logs with a maul manufactured by Hirota (Japanese). They were informed of sales but we dont know numbers. (a) Court rules: There was no sufficient link here (relying on Asahi) Without additional conduct, sale alone does not justify jurisdiction. (i) Case using Asahi reasoning demonstrates stream of commerce is no longer enough

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PJ Case Chart:

YES JURISDICTION
Shoe min contacts original Min Contacts Basic Stream of Commerce Effects Test (purposeful direction) Gray stream of commerce

NO JURISDICTION

Green v. Advance Ross no tortious act Pebble Beach not aimed at forum state Hanson no purposeful availment Volkswagen (reasonably anticipate) Kulko no purposeful availment and fairness Asahi Five Factor Test (fairness to Defendant and state) Ratliff Helicopteros Metropolitan Life Ins. v. Robertson

Calder v. Jones Effects Test

Keeton intentional act in forum Purposeful McGee purposeful availment Availment (in a minimum and states interests contacts sense) + Fairness Burger King purposeful Availment and not unfair Stream of Commerce PLUS

General Jurisdiction

Perkins continuous and systematic activities Frummer

4. GENERAL JURISDICTION AND STATE LONG-ARM LAWS: Continuous And Systematic Activities So That They Are Present For All Purposes A. Here, cause of action does not arise from contacts in the forum state, but defendant engages in
consistent and continuous contacts with the forum = presence in the state (can be sued for anything) 1) Perkins v. Benguet Consolidated Mining (1952): Benguet is incorporated in Ohio, but does business in the Philippines; suit arose outside Ohio; Benguet carries on continuous and systematic corporate activities in Ohio (directors meetings, business correspondence, etc. (1) Benguets business done in Ohio is sufficiently substantial and of such a nature as to permit Ohio to entertain a cause of action against the foreign corporation, even though cause of action arose from activities distinct from activities in Ohio (2) Suit during WWII: no appropriate forum in Philippines b) Helicopteros v. Hall (1984): Helicol (Helicopteros), Colombian helicopter transportation company, contracted with WSH (Texas) to provide helicopter transport for pipeline being built in Peru; checks from WSH drawn upon a Houston bank; Helicol bought helicopters

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from Texas company, sent pilots and management for training/meetings in Texas; Helicol helicopter crashed in Peru, killing 4 US citizens (1) Helicols contacts with Texas are insufficient to satisfy requirements of Due Process Clause (a) Cause of action is separate from Helicols activities within Texas (2) Purchases, trip to Houston and acceptance of Houston check are not enough to constitute continuous and systematic business (3) Polarity leaves a hole: claim did not arise out of jurisdiction, and contacts are not regular and systematic enough what if contacts in forum state are related to events in litigation?

INTERNET AND OTHER TECHNOLOGY:

1) 2)

3)

Remember: SCOTUS has never considered this issue state courts are on their own. When interstate technology (telephones, email) comes into play, a court must determine whether: a. The D purposefully directed his activity toward the forum state OR b. Purposefully availed himself o the privilege of conducting activities therein AND c. The cause of action arises out of or relates to those activities Zippo MFG Co. v. Zippo Dot Com, Inc. (S.D. New York, 1997): The court articulated the sliding scale test under which the likelihood that personal jurisdiction can be constitutionally exercised is directly proportional to the nature and quality of commercial activity that an entity conducts over the Internet. Some criticize Zippo on the grounds that ordinary principles of real space jurisdiction should be applied to cyberspace, urging a narrow application of the traditional purposeful availment test. Others criticize the sliding scale approach on the grounds that it requires case-by-case adjudication on the issue of interactivity and accordingly cannot establish meaningful precedent. a. Active Websites: Where the defendant conducts business over the internet with residents of a particular forum, jurisdiction is almost always proper b. Passive Websites: Where websites do little more than provide information to those who are interested are rarely grounds for the assertion of personal jurisdiction c. Interactive Websites: These websites are considered a middle ground in that they permit a user to exchange information with a host computer. It is in these cases that the sliding scale becomes relevant. Some courts have found that an interactive website alone is enough to establish minimum contacts; others require additional non-internet activity in the forum, regardless of whether the activity is related to the underlying claim. Finally, some courts have required additional conduct in the forum that is related to the plaintiffs cause of action. d. Calder Effects Test i. D must have committed intentional act, which was ii. Expressly aimed at the forum state, and iii. Caused harm, the brunt of which is suffered and which D knew would be suffered in the forum state c) Pebble Beach Co. v. Caddy (2006): Caddy owns and runs a bed and breakfast called Pebble Beach in southern England; Caddy advertises services on website, www.pebblebeachuk.com, which gives general information about business, but is not interactive (no reservations, etc.); Pebble Beach golf course claims that trade name has acquired secondary meaning

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(1) Caddys acts not expressly aimed at California, so he is not subject to the personal jurisdiction of the district court (no individualized targeting of website) (a) Extends holding of Schwarzenegger to situations where sole basis for asserting jurisdiction is a non-interactive passive website (2) Purposeful direction (aimed at and has effect in forum) Calder effects test says something more is needed than a mere foreseeable affect in forum state (a) Committed intentional act (b) Expressly aimed at forum state (individualized targeting) (c) Cause harmed, brunt of which is suffered/known to be likely to be suffered in forum

Decreasing Contacts

Increasing Contacts

Extent of Contacts

No Contacts

Casual or Isolated

Single Act

Continuous But Limited

Substantial or Pervasive

Juris. Conseq.

No No Jurisdiction Jurisdiction

Specific Jurisdiction

Specific Jurisdiction

General Jurisdiction

Jurisdiction Based on Power Over Property: YOU ARE WHERE YOUR PROPERTY IS
A. Ways to claim jurisdiction: 1) Pure in rem: seeking title to land against the world 2) In rem: seeking title to/interest in the land against an individual 3) Quasi in rem: hybrid, claim does not involve the land, land is treated as personification of you for jurisdictional purposes 4) In personam action: claim against a person B. Quasi in rem: You are where your property is 1) Protects people against absent/ unknown defendant a) After Pennoyer, courts extended quasi in rem jurisdiction beyond bounds of land ownership and tangible property b) Value in modern society goes way beyond real estate into new ideas c) Ex: Domain name, bank account 2) Quasi in rem jurisdiction practically abolished in Shaffer v. Heitner (1) Minimum contacts = basis for jurisdiction (2) Quasi in rem still exists where there are gaps in the long-arm (NY defamation suits) so that it does not reach to the extent of the Due Process Clause (3) No full faith and credit = courts cannot enforce in another state beyond the value of property in the rendering state. C. Pennington v. Fourth National Bank (1917) 1) State jurisdiction over property within its borders extends to both tangible and intangible property (like bank deposits)

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2) 14th Amendment does not stop the power of state courts to seize property of absent defendant and apply it to the satisfaction of an obligation a) Property must be within the states borders b) Seizure must be at commencement of proceedings c) Owner must have an opportunity to be heard D. Harris v. Balk (1905): Harris owes $180 to Balk (North Carolina); Balk owes Epstein $344 (Epstein in Maryland); Epstein attaches Harriss debt in Maryland: Balks property is in Maryland since a debt is with the debtor, and a creditor can sue his debtors debtor; Balk later sued Harris in North Carolina court to recover debt 1) Does not matter where situs of the debt originally was 2) Obligation of debtor to pay his debt follows him wherever he goes: Balks debt traveled to Maryland, so Epstein can attach it in Maryland, despite no other contacts with state a) Does not matter that he was only in Maryland temporarily not a defense (1) Quasi in rem jurisdiction is running amok E. Rush v. Savchuk: Insurance obligation cannot be attached to effect quasi-in-rem jurisdiction F. Shaffer v. Heitner (1977): Heitner sued Greyhound and officers in a shareholders derivative suit; Heitner is a non-resident of Delaware; Greyhound is a Delaware corporation, but does business in AZ and cause of action arose in OR; Heitner filed motion for sequestration of property of defendants (shares of Greyhound stock) asserted quasi in rem jurisdiction; stock considered to be in Delaware by statute; Delaware is the only state where place of incorporation = situs of stock; no special appearance in DE 1) Justice Marshall: From now on I emphasize that all assertions of jurisdiction will be tested by the principles of Shoe and its progeny. a) No minimum contacts with Delaware to establish jurisdiction b) Property is not subject matter or related to underlying cause of action c) Defendants had no reason to expect to be haled before Delaware court 2) A proceeding against a thing is really a proceeding against a persons interest in a thing a) Presence of property in a state bears on existence of contacts in state b) Probably does not impact in rem jurisdiction, but may abolish quasi in rem as a separate basis for jurisdiction (combines personal and quasi in rem jurisdiction) c) Quasi in rem still exists where there are gaps in the long-arm (NY defamation suits) so that it does not reach to the extent of the Due Process Clause

Jurisdictional Reach of the Federal Courts

A. For federal question jurisdiction, the jurisdictional reach of the courts is defined by substantive area covered by statute (copyright, etc.) 1) Some statutes have no jurisdictional provision in them a) Omni Capital if there is no jurisdictional provision that applies, the courts cant make one up (1) Probably minimum contacts using 4K(2): standard of minimum contacts may apply to contacts with the United States but that probably wouldnt be fair (Asahi-esque). B. Diversity cases: use states long arm statute (FRCP 4k1A) 1) Federal Rules: a) Rule 4(k)(1)(A) borrow jurisdiction of forum states jurisdiction provision (1) Does not isolate diversity or federal question jurisdiction covers both b) Rule 4(k)(1)(B) 100 mile radius provision (1) Recognizes metropolitan areas sitting on border between states practicality rule (2) Rule 4(k)(1)(C) when authorized by federal statute

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(a) Primary way of getting jurisdiction, since most statutes have provision c) Rule 4(k)(2) nowhere else to bring suit: defendant not subject to jurisdiction of any state court AND exercising jurisdiction is consistent with US constitution (1) Written to deal with Omni problem: state long-arm not long enough, no statutory provision for jurisdiction (2) Applies only to federal question cases not for diversity jurisdiction (a) Federal court cannot reach farther than state court in matters of state law (b) Consistent with constitution: about 5th amendment, not 14th amendment (federal, not state, power issue) (i) Unclear whether the minimum contacts equaling fair play and substantial justice standard applies d) No concerns about shared sovereignty between states and federalism

Challenging A Courts Exercise of Jurisdiction Over Person or Property

A. Rule 12b2 motion 1) Special appearance: D is allowed to make special appearance to contest personal jurisdiction. He cannot make any defense on the merits. 2) Collateral attack: If a D has no property in the forum state he can ignore the suit, suffer a default judgment against him, and later challenge enforcement of judgment based on lack of personal jurisdiction. Cant challenge later based on merits, though. a) If defendant does not show up, plaintiff will get a default judgment and move to enforce the decision (1) Tactical decision not to show up defendant defaults knowingly (a) When cost of what is on the table is less than the cost of defense (i) If you feel like the system in which action is pending is stacked against you b) Notion that you may be able to attack decision collaterally (not if you have assets in the state) c) Once you raise or waive the jurisdiction issue, cant collaterally attack on that basis d) Strategic action: dont believe that plaintiff will enforce judgment of court in another state e) If you have assets in other states, judges in other states have to enforce decision of other states courts full faith and credit (1) Will enforce unless something radically wrong with original states decision or if decision violates new states public policy 3) Transnational law suit class action not recognized everywhere a) Foreign corporation without US assets b) Believe home nation will never enforce the judgment

III. NOTICE AND OPPORTUNITY TO BE HEARD

Notice: As a practical decision is the notice reasonably calculated under the circumstances to give notice?
A. Notice (Constitutional due process)

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1) Notice must be reasonably calculated, under the circumstances, to give actual notice (high threshold from Mullane) 2) Forms of process which by themselves provide notice: (a) In-hand delivery of summons, delivery by registered mail or certified mail, ordinary mail, service of process on a person living with D/agent who we believe will transmit the service to D (b) Problematic Form: Publication (c) While most forms of process provide notice, publication is tricky (d) Look at facts to see what is reasonable (ex: nail and mail may not be, if there is a better way/wont reach D) 3) Mullane Standard: Constitution requires that notice be reasonably calculated, under the circumstances, to give actual notice, and must afford a reasonable time for those interested to appear. What matters is the appropriateness, not whether or not def actually got notice (a) High constitutional standard (b) Publication is not reasonably calculated to give actual notice (c) Sometimes a class though is so large that there isnt an alternative (rare situation)publication is acceptable when beneficiaries arent known (d) Groups to be identified and provided notice appropriately: (1) Known beneficiaries (address known) direct notice (by mail in this case) is required (2) Unknown beneficiaries (changed address, beneficiary died) use due diligence to find class members; if you cant then publication may be okayreasonable effort to give notice needed (3) Contingent interests: future beneficiaries get no notice, because not currently vested 4) Dusenbery v. United States (2002): federal government is the plaintiff; defendant is in federal prison; US gave notice: by publication, by mail to prison, to residence at time of arrest and to step-mothers residence; Dusenbery claims he never received notice (a) Actual notice is not required no heightened notice standard for individuals in US governments custody (b) Did not receive notice, but was reasonably calculated to achieve notice (c) Due process does not require heroic efforts by the government (d) Certified mail achieves constitutionally sufficient notice B. Opportunity to be heard: debtor/creditor cases usually: 1) D must be given notice that they are being served, and must be given the opportunity to defend herself. (a) Due process requires that D be given a reasonable opportunity to develop his case (b) Rule 12a and most state statutes give the D 20 days after service to respond 2) Snidach, Fuentes, Mitchell, Goldberg Standard: (a) Decision to issue a writ of attachment/garnishment/replevin/repossession must be made by a judge and debtor must be given an immediate right to a hearing on the merits (b) Judge must make the decision based on a full presentation by the creditor as to why the creditor believes it has the right to immediate possession (1) Fact-based statement of right to the debt/property made under oath

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(2) Creditor has to post a bond to protect the debtor in case of wrongful attachment or replevin (but bond by itself isnt enough because it only shows strength in their own belief) (3) Debtor must have an immediate right to a hearing on the merits (a) Result -> you can seize but not dispose of it until the debtor can present (b) Actions arent for important public interest, instead just serving a private interest, private advantage (c) The following interest must be taken into account when attaching property (balancing test): (1) debtors property interest, (2) risk of erroneous deprivation, (3) interest of the party seeking remedy (c) Connecticut v. Doehr- current thinking that due process is a balancing test 3) Individual Case Summaries: (a) Sniadach v. Family Finance Corp. (1969): Struck down prejudgment wage garnishment procedure as a violation of due process (1) Imposes hardship on wage earners and families (b) Fuentes v. Shevin (1972): Fuentes bought consumer goods under an installment plan from Firestone; Firestone retained title to merchandise; Fuentes defaulted a year later; Firestone instituted an action for repossession; before Fuentes received a summons, Firestone obtained a writ of replevin to seize goods (1) Possession without ownership is still protected by due process (property interest) (2) The right to a hearing must be granted at a time when deprivation can be prevented (3) Statutes do not provide for notice/opportunity to be heard prior to seizure (4) State can seize goods before final judgment to protect security interests of creditors, but creditors need to test their claims to the goods through a fair prior hearing (5) Replevin statutes should be narrowly drawn to limit summary seizure of goods to special situations (6) Form of hearing demanded effected by: (a) Party seeking writ must post bond, allege that he is entitled to specific goods and open himself to damages if he is wrong (b) Length and severity of deprivation (statutes allow recovery pre-hearing) (7) Policy interests at stake: (a) Minimize unfair or mistaken deprivations of property (b) High value on persons right to enjoy what is his free from governmental interference (c) Replevin statutes serve no important governmental or public interest (private gain only) (c) Mitchell v. W.T. Grant Co. (1974): SCOTUS upheld a sequestration statute (1) Narrowly confined power to obtain a writ: (a) Showing must be made to a judge writ issued only on his authorization (b) More than a form verified affidavit of specific facts (not just conclusory allegations) (c) Creditor must post a sufficient bond to protect debtor against all damages if sequestration is inappropriate (d) Early hearing possible for debtor to regain property

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(2) Less danger that seizure will be mistaken decrease in utility of pre-seizure adversary hearing (a) Adversary hearing will be available immediately after (d) Connecticut v. Doehr (1991): statute authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances and without a requirement that person seeking attachment post bond (1) Relevant 3-part inquiry for due process for prejudgment attachment (balancing test) (a) Private interests affected by prejudgment measure (b) Risk of erroneous deprivation and probable value of additional safeguards (c) Interest of party seeking prejudgment remedy with regard for ancillary interest government may have in providing procedure/foregoing added burden (2) In this case: (a) Property interests are significant sufficient to warrant due process protection (b) Statute presents too great a risk of erroneous deprivation: only skeletal affidavit needed (c) Judge cannot make a realistic assessment of likelihood of success on onesided and conclusory submissions (highly fact-specific situation) (d) Interests in favor of attachment are too minimal: no existing interest in property, no allegation that Doehr would be unable to satisfy a judgment; no government interest (e) Bonds are useful in protecting property rights against mistaken award of prejudgment remedies C. Due process values: 1) Fairness/dignity 2) Participation in justice system 3) Decrease litigation 4) Property rights

IV. SERVICE OF PROCESS

Ask: Was service of process executed in the manner prescribed by the service of process rule? Proper Service of Process (Non-constitutional compliance) B. MECHANICS OF SERVICE OF PROCESS 1) Must follow the rules of the state, or Rule 4 2) Reasonably calculated under the circumstances to succeed (Mullane) 3) No fraud/trickery to get individual into state to serve process but you can flush them out (a) Tickle v. Barton (1956): judgment against D was overturned because the Ps lawyer induced the D into the state for the purposes of serving process on him by fraud/trickery. No personal jurisdiction no service. (b) Wyman v. Newhouse (1937): Affair between P and D, man fraudulently induced by lover to come to FL by convincing him she loved him and wanted to say goodbye

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and that she was leaving to see her dying mother. His arrival at the airport was met by a deputy sheriff who served him w process in a suit for $500,000. The man returned to NY (state citizen) and was advised by his atty to ignore the summons. Collateral attack. He did so, default judgment was entered against him, 2nd circuit held the (1) Judgment was void bc he was induced to come to FL through fraud. 4) If youre voluntarily in state, you are susceptible to service of process. (a) State ex rel Sivnksty v. Duffield (1952): while on vacation in WVA, P hit and injured 2 kids while driving. While in jail awaiting trial because he couldnt post bond, a civil suit was brought against him. The WVA ct held that he was subject to service of process. He didnt come into the state specifically to defend against a criminal charge; he was there voluntarily; though this argument seems specious. If he could have afforded bail, he wouldnt have been subject to the suit. 5) Parties are, at times, immunized from service of process, in the interests of the court: Witnesses, parties, attys who come to a state to participate in a lawsuit; Ps who voluntarily enters state to bring an action; Ds who voluntarily submit to other adjudications there. C. METHODS OF SERVICE: 1) Personal Delivery: (a) Natural personsin hand at house or abode (b) Rule 4h: Artificial entitiesofficer, manager, or general agent, or anyone apptd by law by the entity 2) Service by Mail (substituted service)certified mail (a) Rule 4d: letter sent with a copy of the complaint and the waiver. D can waive process, but if he chooses not to waive/doesnt respond, he will be served in person and charged for the cost of hand delivery. 3) Service on a Person Residing in Ds dwelling (substituted service) (a) Rule 4e2: service must be left with a person of suitable age and discretion who resides at the dwelling. 4) Delivery to an agent Authorized by Appt: (Substituted service) Rule 4e2 (a) Rule 4d1: Service can be provided to an agent if there is evidence he has been authorized by the D. (1) Claims by an agent that he has the authority to receive process or the fact that an agent actually accepts process is not enough to bind the defendant; there must be evidence that the defendant himself intended to confer such authority upon the agent (2) Szukhent: P (NY corp) sued Ds (MI residents) in NY federal court, because they defaulted on farm equipment lease. Lease designated Florence Weinberg (NY) to accept service of process. Ds werent acquainted w agent. Agent delivered 2 copies of summons/complaint to Ds with letter stating that documents had been served on her. Also notified D. SCOTUS says that acceptance and transmittal of notice was sufficient for agency to be valid. (a) Party can appoint an agent contractually even when he doesnt personally know that agent, as long as the agent promptly accepts and transmits notice (even if it doesnt seem like they are required to). 5) Publication: (a) Rule 4 doesnt authorize service by publication

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(1) But rule 4e1 says federal court can use the service rules in state where it sits or where service is affected. (2) State statutes provide that service may be made by publication when the P has demonstrated that there are no other reasonable ways to serve process. (3) Rarely acceptable. 6) Service on an artificial entity (a) Rule 4h: authorizes service to an officer, managing agent or general agent when D is a corporation, partnership, unincorporated association or whatever that is subject to suit under a common name. 7) Class Actions (a) Sometimes publication + actual notice to a sample of class members suffices. 8) International Service (a) Have to follow the service of process rules in the country where the person you are trying to serve is otherwise you wont get a judgment enforced there (b) Consular treaties- specifies a way of serving process bilaterally (c) Multinational agreements on service of process- Hague Convention (d) If not part of the agreement: long process (class notes P. 26) D. RETURN OF SERVICE 1) Must file a return, disclosing enough facts to show that D has actually been served and given notice to appear in court. Ordinarily this is necessary for the trial court to consclude that it has jurisdiction. E. STATUTE OF LIMITATION AND SERVICE 1) Federal Court: (a) Rule 3: in fed court, filing of complaint = commencement of the action (b) Rule 4m: requires fed ct to dismiss an action when the D hasnt been served within 120 days of the filing of the complaint (if P fails to show a good cause for not completing service within that time) (c) Rule 6: allows P to request extra time to serve summons/complaint (d) Rule 12b5: motion to dismiss for insufficiency of service of process (1) Considered waived if not made in motion or responsive pleading! 2) State Court: when cause of action is based on state law (a) Varies; in some states, cause of action is commenced by service of process. F. TERRITORIAL LIMITS OF SERVICERule 4k1 1) Diversity/federal question cases: service of process may be made (a) Within the territorial limits of the state in which the district court sits (b) Anywhere else permitted by state law of the state where the court sits 2) Rule 4k1b: service of process permitted within a 100 mile radius of the district court, but only applies where out-of-state parties brought in as additional parties to an already pending action. (a) Valid parties are 3rd party Ds and indispensable parties (Joined under Rule 14 or Rule 19) 3) Subject to federal interpleader jurisdiction under 1335 (a) Congress can provide for nationwide service in some cases. 4) Rule 4k1A allows a federal court to piggyback on a state long arm statuteprocess of a federal court may thus be the same as the state in which it is sitting. 5) Rule 4k2: limited federal long arm provision (1990s). Only applies when individual is not subject to general jurisdiction in any state and no long arm statutes apply. Very rare.

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V. VENUE

Venue deals with the allocation of a case within a court system that has jurisdiction over that case- Jurisdiction over parties must be established first Venue challenge must be raised particularly early by def, otherwise it is waived Rule 12b3 o Venue is waivable because it is an issue of allocation/convenience/administration, not a constitutional issue Rules of venue are particular to a system- each has a different set of rules

Three Questions to Determine Proper Venue 1. Does the court have venue under the statutory structure (each state is different)? 2. If the court has venue, can the court transfer it? 3. If the court has venue, are there situations where we should transfer it anyway forum non conveniens? QUESTION 1. Does the court have venue under the statutory structure? 1. Venue in Federal Actions 1391 which court shall try the action? a. 1391(a) Diversity cases may be brought only in federal court: i. Where any D resides (not the same as citizenship) if all defendants reside in the same state ii. Where substantial portion of events occurred or where substantial part of the property is situated iii. If and only if neither of the first 2 apply, then venue exists in a judicial district in which the defendant is subject to PJ at the time the action is commenced b. 1391(b) Fed Question & Mixed Diversity/Fed Question cases may be brought only in federal court: i. Where any D resides (not the same as citizenship- can reside in more than one state) if all defendants reside in the same state ii. Where substantial portion of the events giving rise to the complaint occurred, or where substantial part of the property that is the subject of the action is situated iii. If and only if neither of the first 2 apply, then venue exists in any judicial district in which the def may be found (usually means wherever PJ exists at time action is commenced) c. Corporations and Aliens for purpose of venue i. Corporations reside in any district where subject to PJ at the start of the action 1391(c) ii. Aliens may be sued in any district 1391(d-f) d. Removal: 1441 (a) says that when a case is removed to federal court, the fed court encompasses the place where the state action is pending, so its irrelevant that the fed court wouldnt have been a place of proper venue originally e. Local action: in cases involving land, the action must be brought in the state in which the land is located (Livingston v. Jefferson)- never codified in statue; if property is located in more than one state, venue is proper in both 1392

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i. Based on the now outdated reasons: of land being very parochial, difficult to know the law of different places, sovereignty tied up so you want that court to decide ii. Problem defining what is a local action not hard when its the title of land, destruction of things on land (burning of crops/structures) are also probably local actions- but its more difficult with trespass, or stealing of natural resources iii. Transitory action: one in which the court will try the case even though the suit relates to land outside the state (Reasor-Hill) if a local action cant be brought where the property is because of lack of PJ over the def, the action may be brought in the state where the def resides. This represents a minority view- local action still lives. Really here youre talking about a products liability action, not actually talking about land. 2. State Courts Factors state courts consider in deciding whether to dismiss for forum non conveniens a. Whether the plaintiff is a state residentif so, plaintiff has stronger claim to have case heard in home state b. Whether witnesses and sources of proof are more available in different state or county c. Whether forums own state laws will govern the action QUESTION 2: If the court has venue, can the court transfer it? Have to have PJ in the Transfer court- Ask all questions again! 1. 1404(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought a. Motion to transfer almost invariably made by def, and burden is on movant to show why b. Transferee forum must be one in which the original claim could have been brought (Hoffman v. Blaski) c. The law of the transferor court must apply i. Generally only applicable to diversity cases; consensus against applying to fed question cases 2. 1407 Allows cases with the same CNOF to be transferred to a single court for consolidated pre-trial hearings a. Cases must be returned to transferor court for trials, unless get parties consent or invoke 1404(a) QUESTION 3: Situations where we should transfer it anywayforum non conveniens? 1. Generally forum non conveniens exists because the transfer is impossible a. Cant transfer state-to-state, federal-to-state, US to foreign court 2. Forum non conveniens works when it really makes no sense to litigate in the given court 3. There is a presumption in favor of plaintiffs forum choice, so forum non motions and transfers are rare a. Declaring forum non conveniens results in an actual dismissal or action, so plaintiff must initiate again b. Because of this harsh outcome, court may grant motion on condition(s): i. Def identifies an alternative forum ii. Defs consent to jurisdiction in the other forum, waiving statute of limitations in the other forum

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4. Piper Aircraft: plaintiff cant defeat a motion to dismiss merely by showing that the substantive law of the alternative forum is less favorable to him than that of the current forum. Here accident, evidence, documents, plane, etc all in Scotland. Court used forum non con even though Ds were Americans a. Court accepts the possibility that changing forum may affect the outcome, but says need to weigh that possibility with other interests: i. Private interests convenience of litigants and litigation elements (witnesses, documents, etc), access to proof, enforceability of judgment if one is obtained, advantages/obstacles to a fair trial, does it oppress/harass D by enforcing an unnecessary expense or trouble to pursuing the remedy ii. Public interests which court/venue is really interested in adjudicating the case, administrative problems of cases being piled on, jury duty burden, importance of local issues being solved locally, difficulty of applying foreign law b. See greater use of the doctrine- it is a check on federal long arm, excessive use of jurisdictional principles- reflects that US is a judicial magnet c. Reluctance to say that another countrys legal system is inadequate- only in extreme situations like we dont want to send holocaust victims back to Germany. d. Remember that unlike transfer which just moves the action to another court, with forum non the action has to be dismissed and P must initiate again- statute of limitations may have run out, have to get PJ over the D in the second forum. Since the motion is made by the D, usually court says that they arent going to grant unless (1) theres an alternative forum (2) D waives SOL defenses that may have accrued since the first action (3) agree to stand as a D in the alternative forum (consent to jurisdiction) 1407 Multidistrict Litigation allows cases with the same common nucleus of operative facts to be transferred to a single court for consolidated pre-trial hearings. Cases are returned to the transferor court for trials, unless you can get parties consent or invoke 1404a. o Appointed by CJ of the US o May give it to a court that had earlier jurisdiction or may have improper venue but done pursuant to statute o Lexecon: says that you can only stay there if everyone consents- something that never happens.

VI. REMOVAL
A. REMOVAL GENERALLY: 1441 1) Removal is a one-way street, no removal from federal state court 2) EVERY REMOVAL QUESTION IS ALSO A SMJ QUESTION 3) You can only remove an action that could have been brought in a federal court originally 4) Well-pleaded complaint rule applies fully on removal

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B. C.

D.

E.

5) Cannot add up the claim and counter-claim for removal purposes because you could not originate the action in the federal court. 6) Only original D can remove: a) District court has the discretion to keep it, or send it back whatever makes sense b) Congressionally-mandated right to use a federal forum c) Only way you can achieve right is to give D the right to veto Ps choice in a state forum and choose a federal forum 7) Federal Question action is removable without regard to the citizenship of the parties (in state or out of state D can remove) 8) Diversity of Citizenship D can only remove if they are out-of-stater + complete diversity +amount in controversy 1367(c) allows the court to remand a claim if state claims predominate 1) You can only transfer after you remove. Removal is considered waived if the D takes a substantial defensive action (counterclaims P) before filing for removal. 1) Removal must be agreed to by all defendants. Exception mass disaster, class action can be sought by any D b/c they SHOULD go to fed. 2) Removal is time limited & based on complaint. Have 30 days from when basis for removal appears in the case. Basis for removal is complaint so that, in accordance with Mottley, well-pleaded complaint rule- when removal is b/c of federal question, fed ? must be in complaint. 3) Certain kinds of actions, by statute, cannot be removed. Under FELA, it would destroy the convenience for the workers if you can remove the case. 1441(C) allows someone to remove on a federal question + on an otherwise unremovable state matter-like a form of supplemental jurisdiction- discretion of the DC to determine the issues or remand 1) Protective Jurisdiction conferred by congress to allow judge to decide- otherwise P could try to pollute the whole claim with one purely state claim. Not clear how separate and independent you have to be a) Question about whether there is a gap between supplemental claim (T&O) and separate and independent- if there is then there would be a gap cases that couldnt come into federal court. constitutionality issue because allows things that wouldnt be allowed under 1367, can congress create a zone of protective jurisdiction to protect center stuff? b) 1441(c) does NOT apply to diversity! c) Suits involving supp claims that derive from a CNOF DONT fall within 1441c since arent separate/ independent. Provides for removal/ remand only where federal question claims are independent from state law claims with which they are joined in the complaint. (ie- 1367 claims) Basic Statutory Policy: Feds have original jurisdiction + action is brought in state court Ds can remove to [28 USC 1441(a)]

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1) Federal question claim + separate and independent non-removable claim [28 USC 1441(c)] a) Feds can try the whole thing b) Feds can remand state-issues (1) Borough of West Mifflin: state claim must be separate and independent. c) Foreign state sued in state court may remove to Fed, where there shall not be a jury. d) Mass disaster: if claim could have been brought in Fed ct. under 1369 removable (1) BUT: remand for damages determination, except convenience of parties or interests of justice. (2) Fed court can hear claims ordinarily barred in the state court. 2) Federal Officers [28 USC 1442] a) Federal official sued for act under color of her office removable 3) Civil Rights claim removable [28 USC 1443] 4) NON-REMOVABLE! [28 USC 1445] (1) Action against railroad arising under Federal Employers Liability Act (FELA) (a) BEWARE OF THIS EXCEPTION!!!! (2) Workmans comp (3) Violence Against Women Act 40302 (4) Plaintiff cannot remove b/c of counterclaim [Shamrock Oil & Gas] (5) Third parties cannot remove [First National Bank of Pulaski, 6th Circ.] F. Procedure for removal [1446] 1) Ds file short and plain statement of grounds + all paperwork w/ district court 2) Must be filed within 30 days of service of process/amended, newly removable motion a) Ds file removal notice w/ adverse parties and state court promptly after a. (1) Any defect 30 days to file motion for remand G. If P tries to destroy SMJ through joinder [28 USC 1447] 1) Deny joinder 2) Permit joinder + remand H. Class Action: [28 USC 1453] 1) May be removed by any defendant w/o consent of others 2) Remand orders are reviewable IF appeal to Circuit w/in 7 days. a) Appeals court must render review w/in 60 days b) Deadline for review can be extended by: (1) Agreement of all parties (2) Interests of justice 3) Non-Removable Class Actions: a) Securities b) Internal corporate governance

VII.
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WAIVER

A. Waiver VERY TRICKY ALWAYS CHECK FOR! (1) SMJ is never waived and can be brought up at any time (Rule 12h3) B. PJ, Notice, Process, Venue: Must be raised in pre-answer motion or asserted in the answer or they are waived under Rule 12h1, 12h2 (a) They are threshold defenses and cannot be raised at trial! (b) You can only make one pre-answer motion with all threshold defenses consolidated (as per Rules 12(g) and 12(h)) (c) If you have omitted threshold defense in a pre-answer, you cannot put it in your answer!! (d) If you lose a motion, go on to the merit and can subsequently appeal from the final judgment (based on original defense)

VIII. ERIE DOCTRINE

ERIE ATTACK PLAN: Is there Complete Diversity OR Supplemental Jurisdiction over a state law claim under FQ? (1) If NO: STOP. Do not apply Erie Doctrine (2) If YES: MOVE ON! Is this substantive state right or procedural (Easy Erie)? (1) If Substantive: Erie answer apply highest state law (might involve prediction or certification (2) If Procedural: MOVE ON Is it outcome determinative (considering twin aims of Erie - forum shopping and inequitable administration of law York and Hanna I)? (1) If No: Apply Federal law (2) If Yes: MOVE ON (a) Recall Woods, Cohen, Ragan trio of taking outcome determinative too far to introduce next step Is there a countervailing federal policy that could outweigh state interests (Byrd)? (1) If No: Apply state law (2) If Yes: Consider how strong federal interests are vs. state interests: (a) If very strong Federal law applies (probably will occur if constitutional interest at stake as per Byrd) (b) If unclear or inapplicable, move on Is there a Federal Rule or Statute? (1) If No apply state law (2) If Yes: Apply Hanna Test: (a) Direct conflict with state law? (i) If No: Apply Federal Rule (Walker, Gasperini) (ii) If YES: Test the Federal Rule: (b) Is it arguably procedural (REA (a))?/Is it unconstitutional? (i) If neither: Major Problemo (probably wont happen): Apply State law (ii) If procedural & constitutional: Move on (c) Does it abridge a substantive right (REA (b))? (i) If YES to both Questions: Apply state law

a)

c)

d)

e)

f)

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(ii) Erie Untangled:

If No to both: Apply Federal Rule

A. Historical Underpinnings: 1) APPLICABLE RULES/STATUTES: 1652 Rules of Decision Act; 2072 Rules Enabling Act;
Necessary and Proper Clause; 10th Amendment 2) Swift v. Tyson (1842): Do the words the laws of the several states in 34 of the Judiciary Act of 1789 refer to state statutes or state statutes in common law? a) Interpreted laws in 1652: federal courts are only required to follow a state law if it is statutory not required to follow common law precedents (1) Federal judges can reach decisions using discretion (natural law philosophy) b) Creation of a general federal common law

D. Erie Doctrine Unfolded:

1) Erie R. Co. v. Tompkins (1938): Tompkins was hit by something protruding from a train while walking along the tracks at night; under Pennsylvania common law, traveler is a trespasser; under federal common law, the railroad would owe a duty of reasonable care to traveler a) Swift is abused and leads to forum shopping/inequitable administration of law (diversity jurisdiction, meant to protect non-citizens leads to abuse by those very non-citizens) b) Rules of Decision Act: Misinterpreted (Unconstitutional to read it that way!) (1) Not intended to allow federal courts to establish substantive federal common law (there is no such thing) c) Both Article III and 10th Amendment (quote) deny the right to a federal blah? d) State substantive law governs e) Under Erie, federal courts must apply the law of the highest state court (sometimes will involve prediction or certification) 2) Guaranty Trust Co. v. York (1945): state statute of limitations vs. federal equitable defense of latches a) Statute of limitations blurs lines between substantive and procedural (1) A statute that would completely bar recovery in a suit if brought in a state court bears on a state-created right vitally not just formally b) Extension of Erie doctrine: Now, it isnt substance vs. procedure, but outcome determination that is key (1) If application of federal law would lead to a different result, must apply state law (if a federal forum is open, the state forum must also be open and lead to same outcome) c) Vertical uniformity is sought (as opposed to horizontal uniformity through a federal common law ala Swift)

E. How Far Can We Take York in 1949?

1) Ragan v. Merchants Transfer & Warehouse (1949): Kansas has a 2-year statute of limitations on torts; process not served until after 2 years; plaintiff complied with Federal Rule 3: suit commenced (and statute tolled) by filing of complaint (a) Because an action in Kansas state court is not commenced until process is served, you must comply with Kansas law in a federal diversity action (a) Federal courts cannot extend Kansas statute of limitations (b) Takes York outcome determinative concept to an extremely procedural level 2) Woods v. Interstate Realty Co (1949):

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(a) States say that corporations must register to do business in their state or they can be sued, but cannot sue, in that state (1) Door-closing law: outcome determinative in the same sense that Guaranty is outcome determinative (2) Federal courts cannot hear diversity suits in that case 3) Cohen v. Beneficial Loan Co. (1949): Corporations concerned about shareholder derivative suits: plaintiffs must post bond against expenses they might inflict in pursuit of a frivolous suit (a) Federal rule 23 does not require bond, but New Jersey law does (1) Cant get through front door without the bond in state court = outcome determinative

F. Reclaiming Federal Power:

1) Byrd. v. Blue Ridge (1958): (state: judge vs. federal: jury (as per 7th amendment right)) (a) Reads outcome determinative less literally - even though it could technically be a different result (b) Chances of forum shopping/inequity influencing decision of where to bring suit are small (c) Balancing of federal and state interests (1) Here, weak state policy gives little indicator of any reason for judge over jury (2) Federal interest is considerably strong: Under the influence if not the command of the Seventh Amendment (d) Still outcome determination test (from York), but if there is a federal interest

involved, make sure to consider that too

2) Hanna v. Plumer (1965): Substituted service of process in diversity suit made in compliance with Federal Rule 4(e)(2), but not in compliance with Massachusetts law (only in-person service) (a) First case to look at a federally-mandated right (as opposed to judicially-created) (b) Considers the Rules Enabling Act, 2072 (applies to anything that is arguably procedural) (c) Steps for Hanna analysis: 1. Is there a direct conflict with state law? YES 2. Is it Constitutional? YES (Constitution grants Congress the power to make rules of procedure for its federal courts) 3. Does it abridge, enlarge, or modify a state substantive right? NO 3) Sibbach v. Wilson & Co (1941): set procedural standard (usually interpret for lack of conflict)

G. Modern Applications:
1) Walker v. Armco Steel (1980): Walker sued Armco for negligent design/manufacture; complaint filed within 2 year statute of limitations, but service of process not made until after (identical to Ragan facts) (a) Ragan is not implicitly overruled by Hanna: Rule 3 is not broad enough to control the issue, so there is no unavoidable clash between the Federal Rules and state statute (b) Statute of limitations is a statement of substantive state policy (c) Concern: inequitable administration of law 2) Stewart Org. v. Ricoh Corp. (1988): contract between Alabama corporation and New Jersey manufacturer contains a forum selection clause; case brought in DC in Alabama; Alabama does not uphold forum selection clauses (a) Congressional statute ( 1404(a) transfer statute) is law to be applied: Hanna Analysis: (1) Is the statute sufficiently broad to control the issue before the court? YES (2) Does the statute represent a valid exercise of Congress authority under the Constitution? (a) If Congress intended to reach issue and if it acted in a manner consistent with Constitution, then federal courts are bound to apply rules enacted by Congress

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(3) Is there a direct conflict? YES - Federal and state rules are opposite (4) Is it procedural? (a) 1404(a) is procedural transfer does not change applicable law 3) Gasperini v. Center for Humanities (1996): Center lost 300 of Gasperinis photo slides; jury awarded $1,500 per slide = $450,000; federal standard = shocks the conscience (trial) or abuse of discretion (appellate) (a) Not 100% outcome determinative only a possibility of altered verdict (compare the loosened definition of York standard with the one used in 1949 trio) (b) Compromise position: (1) NY law would be applied by federal trial court judge (2) Appellate control limited to review for abuse of discretion (c) Respect NYs dominant interest without disrupting federal system (1) Substantive: deviates materially controls how much a plaintiff can be awarded (a) If federal courts applied a different standard, substantial variations between state and federal money judgments would be expected (2) Procedural: assigns decision-making authority to NYs Appellate Division

H. The Problem of Ascertaining State Law

1) Klaxon Co v. Stentor (1941): Federal Courts sitting in diversity must apply the conflicts-of-law rules of the states in which they sit (a) Although this might destroy horizontal uniformity, more important to further Erie goals (eliminate forum shopping and inequitable administration of law) (b) Possible future clash between CAFA and Klaxon? 2) Van Dusen v. Barrack (1964): A suit filed in one federal court may be transferred to a different states federal court, leading to a different states law being applied. (a) To prevent forum shopping, federal court must apply law of the state where suit was originally filed, not the state in which it sits (law travels with a transfer of venue). 3) Mason v. American Emery Wheel Works (1957): Mississippi tort law does not allow for liability for negligence in manufacturing in absence of contractual privity; last case dealing with this issue is 30 years old what is state law? (a) If last case on point is outdated and the direction of state law indicates a change, the federal district court may behave as a state supreme court (1) Here, court can predict what the highest court would declare (they infer that modern rule would be adopted) (b) Lawyers wanting to challenge existing state doctrine will choose federal court (1) May somewhat encourage forum shopping and inequitable admin while a state trial court doesnt have the power to overrule precedence, a federal court 4) Remember: A federal court can always ask for certification to clarify an issue

I. Federal Common Law

1) There are certain areas of specialized federal common law, though scope is uncertain (a) Usually used to resolve cases involving important federal interests (b) Traditionally federal areas may also fall under this category (even if no statutes apply) 2) Clearfield Trust Co. v. United States (1943): Federal commercial paper: Government has a unique interest in making sure that federal interests are met (and there is a possible conflict with application of state law). (a) But, as between private parties, there is no federal interest in every commercial paper case (Parnell 1956) (1) Upheld in Miree v. DeKalb County (1977) (also between private parties) 3) Cases involving military contractors are fed interest (Boyle v. United Technologies Corp)

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J. Federal Law In State Courts (Inverse Erie)

1) When there is concurrent jurisdiction for a federal statute, and it appears in state court, what law is applied? (a) Inverse Byrd analysis: Balancing test between state and federal interests 2) Most often: FELA can be asserted in state or federal court but defendant cannot remove! (a) Under the Supremacy Clause, federal law must be applied 3) Dice v. Akron (1952): federal courts would give fraud question to the jury; Ohio gives it to the judge (Similar to Byrd problem, but in a state court) (a) Right to trial by jury is too substantial a part of the rights of FELA to permit it to be classified as a local rule of procedure (b) Apply with care and deference 4) Brown v. Western Railway: Pleadings in Georgia read against the pleader; pleadings construed in light most favorable to pleader under Federal Rules (a) States have to construe pleadings in light most favorable to pleader for FELA cases, even though them construe them against the pleader in all other cases

IX. MODERN PLEADING

A. Standard of Particularity (Rule 8a)
1) Traditionally, four functions: 1) notice, 2) identify baseless claims, 3) show facts, 4) narrow issue. a) Modern Pleading: Just notice, usually. 2) Under Code Pleadings: a) Gillispie v. Goodyear Service Stores (1963): Under North Carolina code then in force, plaintiff had to make a plain and concise statement of the facts constituting a cause of action (1) Not enough facts to constitute a legal conclusion (2) Code pleadings have usually required more detail than the FRCP b) Under Modern Federal Rule 8(a): Rule 8(a) 1: Calls for an understanding of the courts jurisdiction (diversity must be established if a diversity case). Rule 8(a) 2: short and plain statement of the claim showing that the P is entitled to relief. Rule 8(a) 3: Claim for relief (1) Reflects the substantive law that is being invoked by the P (2) In each part of Rule 8(a), the substantive element of the claim is reflected in the pleading. (3) Every cause of action/claim for relief must include all three elements of 8(a) c) Remember: If dismissed for failure to state a claim, the court can file a leave to amend under Rule 15. d) Dioguardi v. Durning (1944): Diogardi wrote his own complaint against the Collector of Customs of the Port of New York; District Court dismissed complaint with leave to amend on ground that it fails to state facts sufficient to constitute a cause of action. (1) Just need a short statement of claim showing entitlement to relief no pleading requirement to state facts sufficient to constitute cause of action. (2) Purpose: Not to deprive P of his day in court to show what he obviously so firmly believes e) Conley v. Gibson (1957): Dont dismiss unless it appears beyond doubt that P can prove no set of facts in support of his claim (1) Standard for 50+ years. Designed to let people in, not keep people out. 3) Civil Rights have no higher standard:

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a) Leatherman v. Tarrant: There has been no amendment to federal rules requiring added specificity b) Bautista: Lower courts might require each P in class action to show individual right to relief (1) Move towards heightened requirement c) Swierkiewicz v. Sorema N.A. (2002): P 59 years old and a native of Hungary; CEO, French national, demoted P and transferred his responsibilities to a younger French man who was less qualified; Plaintiff filed complaint alleging discrimination based on national origin and age; SDNY dismissed complaint for not alleging circumstances to support an inference of discrimination (1) Dont need prima facie case of employee discrimination in complaint that is an evidentiary standard (Just need 8(a) 2) 4) Most Recently, Plausibility Standard has developed a) Bell Atlantic v. Twombly (2007 Souter, majority) P brought suit against large telecom firms alleging anti-competitive behavior; establishes parallel conduct only. (1) Cant plead anti-trust conspiracy by showing parallel conduct (under Sherman Act) (a) Need to provide grounds of entitlement to relief through factual allegations (i) Need more than suspicion of a legally cognizable right to be a valid complaint. (2) Discovery is expensive for antitrust suits (3) Retire Conley phrase (dont read it literally) (a) Claims they are not imposing a heightened fact pleading standard only enough to state a plausible claim b) Stevens, Ginsberg (and Miller!) Twombly Dissent: (1) Federal Rules are meant to keep litigants in court, not out. (a) Conley permits dismissal only when proceeding beyond discovery would be futile (i) Plausibility standard is irreconcilable with Rule 8 and Conley (2) Majority just wants to protect rich corporations from the burden of pretrial discovery (3) Miller: This seems like the Court has invited subjectivity in rendering decisions about plausibility (a) The discretion is at the expense of a citizens right to a day in court/jury trial (b) The higher you create an access barrier, the less people will climb over into court. c) Erickson v. Pardue (2007) after Twombly (1) Reaffirmed Conley standard (Backtrack from Twombly?) d) Ashcroft v. Iqbal (2009) (Kennedy majority; Souter dissent) Muslim citizen of Pakistan states he was deprived of constitutional rights while in federal custody. (1) Applies Twombly Two-Pronged Approach: (a) Are there factual allegations? (b) Do they give a plausible rise to relief? (2) The complaint has not crossed the line from conceivable to plausible (like in Twombly) because the allegations are conclusory and, thus, not entitled to be assumed true (not factual fails first prong of Twombly test) (a) Even accepted as true, it doesnt show that there was discrimination (no plausible rise to relieve fails part II across the line from conceivable to plausible) (b) Federal Rules do not require courts to credit a complaints conclusory statements without reference to its factual context (Big change from tradition to accept statements as true) (3) Must be more likely explanation of the facts than any other explanation (4) Souter dissent: This complaint has factual allegations (unlike Twombly) (5) Millers view on Iqbal: Conley is basically dead now although you can make arguments

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that only the passage is retired, and maybe at the low end of case complexity, it lives. (a) Striking passage in Kennedy opinion: How is the judge supposed to determine plausibility? (i) Use his judicial experience and common sense 1. Subjectivity in a nutshell (things not in the complaint) (b) Ashcroft has shown a flood of dismissals for conclusory statements. 5) Pleading Intricacies: a) Garcia v. Hilton Hotels International (1951): Garcia claims that Hilton, employer, accused him of hiring prostitutes; Garcia sued Hilton for defamation; Hilton moved to dismiss complaint under (12(b)(6))(no publication alleged), or strike paragraphs 5-8 (12(f)) and require a more definite statement (12 (e)) (1) No defamation on witness stand motion to strike granted (2) Need actual utterance recorded 12(e) motion for more definite statement granted (3) Complaint must be construed in the light most favorable to the plaintiff with all doubts resolved in his favor and the allegation taken as true (4) Side Q: Does any of this survive Twombly? (a) Judges may not be as willing to provide leave to amend after Twombly ($ concerns) b) Schaffer v. Weast (2009): (1) Party seeking relief carries burden of proof

B. Special Pleading Rules (Rule 9): For Pleading Special Matters

1) Generally: Rule 9a: Capacity: no need to aver the capacity of a party to sue/be sued, except to the extent needed to show juris. Rule 9b: Circumstances of fraud must be pleaded with particularity. Malice/intent alleged generally. Rule 9c: once P avers that all conditions precedent have been performed/have occurred, burden shifts to D to find/identify conditions precedent unperformed by P (Used to be minimal, but modern Ks have hundreds of conditions, which is why the burden is reversed) Its a P-friendly, pragmatic approach. Rule 9g: Special damages must be stated explicitly (Special damages are those which arent foreseeable under the claim as it is brought). 2) Alleging Fraud Under FRCP 9(b) a) Denny v. Carey (1976): Satisfy minimum notice and apply Rule 9(b) to evidence b) Denny v. Barber (1978): (1) Refuses Carey because complaint is too vague (Increases requirement) (2) Most jurisdictions follow Barber 3) PLSRA: Super-heightened pleading standard on securities lawsuits a) Twin goals of PLSRA: Curb frivolous, lawyer-driven litigation, while preserving investors ability to recover on meritorious claims b) Ask: Do all the facts alleged, taken collectively, give rise to a strong inference of scienter? c) Requires that the complaint specify each statement alleged to have been misleading and give the reason why each is misleading. d) Tellabs, Inc. v. Makor Issues & Rights (2007 - Ginsberg) (1) Act requires that plaintiffs must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind (a) Must take into account plausible opposing inferences (b) (What is strong?) A complaint with survive only if a reasonable person would deem the Inference of scienter at least as compelling as any opposing inference (2) Scalia dissent: (a) The inference of scienter must be more plausible than any opposing inference, not just equal to it and means an inference that is more likely than not correct

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e) Dura Pharmaceuticals, Inc. v. Broudo (2005 Breyer) (1) Need to demonstrate loss causation and establish that misrepresentation caused economic loss (not merely that the price was inflated) (2) Comment: PSLRA might chill meritorious litigation by making it too expensive to pursue claims that turn out to be meritorious 4) Alternative and Inconsistent Allegations: a) Under FRCP 8(d), pleadings can be inconsistent if they are made in good faith b) Rule 10(b) expresses hope that as far as practicable, each paragraph will be limited to a single set of circumstances 5) Pleadings Damages Under Rule 9(g): a) Ziervogel v. Royal Packaging (1949) (1) A P cannot introduce special damages at trial when only general damages were mentioned 6) The Prayer for Relief Under FRCP 8(a)(3) and 54(c) a) Bail v. Cunningham Brothers, Inc (1971) Plaintiffs original complaint sought damages of $100,000; plaintiff tried to amend on the day of trial to $250,000, which was denied; Jury returned verdict for $150,000; Post-trial motion, Bail allowed to amend complaint to increase damages clause to $150,000 (1) Pursuant to Rule 54(c), damages may be awarded in excess of those demanded in pleadings (General rule under 54(c): plaintiff entitled under evidence even if not in pleadings) (2) Allowing post-trial amendment of complaint did not affect outcome of case (a) $100,000 is not so insignificant that counsel wouldnt have tried hard enough or not argue damages instead of simply no liability (3) In combination, 54(c) and Bail take the heart out of 8(a)(3) (a) 8(a)(3) basically only has a ballpark notice function now (tactical tool)

C. Responsive Pleadings: Typical answer has 1, 2 or 3 sections in it:

1) Part 1 Response to the complaint responds allegation by allegation a) Rule 8(b), separate statement requirement: defendant is obliged to respond to each of the allegations in the complaint b) Admit, deny, deny by information and belief, deny when you dont know (1) Cant say I dont know if you know or if information is readily at your disposal (2) Good faith notion of effort required in finding out information (a) Hedge words (information and belief): must have a good faith basis (3) Qualified denial: a combination of admission and denial when parts of the allegation are true and parts are false c) Must meet substance of allegation youre responding to (1) Trickiness can get you in trouble (See Zielinski) d) Answer is a tactical, limited, uninformative response to the allegations (1) General Denial: defendant denies each and every allegation of plaintiffs complaint (a) Courts try to force defendants off the general denial backed up by Rule 11, truthfulness in pleading 2) Part 2 Affirmative defenses Rule 8(c) a) Modern rules: can respond inconsistently if you dont have the full story Affirmative defenses must be pled or they are waived b) Rule 8c lists 19 affirmative defenses (contributory negligence, duress, estoppel, etc) (1) and any other matter constituting an avoidance or affirmative defense have to

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plead anything like other 19, anything that might surprise other side or they are waived. Better to err on pleading it, includes unavoidable accident/act of god 3) Part 3 Defendants complaints- When D becomes Aggressor a) Counter-claims b) Cross-claims c) 3rd party claims (a) Defendant becomes the aggressor: defendant brings a counterclaim, cross-claim, or third party complaint (Rules 13 and 14) (i) Defendant is required to perform like a plaintiff must comply with Rule 8 4) Zelinski v. Philadelphia Piers, Inc. (1956) Plaintiff sued PPI for forklift accident claims that PPI owned, operated and controlled forklift; PPI denied allegation in actuality, PPI still owned the forklift, but did not operate or control it a) Court decided that this was dishonest ineffective denial under Rule 8(b) b) Defendant should have filed a more specific denial than a general denial (1) Specific denial and admission of parts of the paragraph would have warned plaintiff that he sued the wrong defendant (2) Defendant knew that its inaccurate statements will have deprived plaintiff of right of action ineffective denial is treated as admitted 5) Motions to Dismiss Under Rule 12: a) Defenses against the validity of complaintincluded either in answer or separate motion (1) Rule 12b1 lack of subject matter jurisdiction (2) Rule 12b2 lack of personal jurisdiction (3) Rule 12b3 improper venue (4) Rule 12b4 insufficiency of process (5) Rule 12b5 insufficiency of service of process (6) Rule 12b6 failure to state a claim upon which relief may be granted

(a) Must establish that no recovery is possible under any legal theory (b) Usually made before def files answerafter can make a 12c motion for judgment on pleadings
(7) Rule 12b7 failure to join a necessary party (under Rule 19) (8) Motion for a more definite statement def may make motion under 12e if complaint is so vague or ambiguous that def cannot reasonably be required to frame a response pleading (9) Motion to strike if plaintiff has included redundant, immaterial, impertinent or scandalous material in complaint, def may move under 12f to have material stricken from pleading b) American Nurses Association: Moves to dismiss under 12(b) 6:Case alleges confusing paragraphs; looks like there is no real claim. (1) Rule: Cant dismiss for lack of facts in a sexual discrimination case, even if it looks more like a comparable worth claim (give P a chance to make a case) (2) Note: After Twombly, dismissal rates of civil rights cases spiked. c) Remember: If a complaint is dismissed, P will usually have the opportunity to amend the complaint. (1) P can automatically amend once before D files answer, Rule 15a (2) If a 12b motion is successful after filing answer, P may amend with the courts permission (usually granted).

D. Amendments (15): 38

1) Amended pleading supersedes previous pleading (as if previous pleading were never there) 2) Rule 15(a) beginning of case = free fire zone a) Can amend once without anyones permission (usually used pretty quickly) b) No way for the other side to be prejudiced (1) Post as-of-right and before trial (15(a)(2)): party seeking amendment only with opponents permission or courts leave to amend c) In actual practice, everybody grants permission to amend d) If no permission, court should freely give leave when justice so requires e) When there is significant information discovered in discovery, when something is so substantial as to actually prejudice the other side, etc. f) Theoretically, 15(a)(1) time period could go on the whole time, as long as there has been no responsive pleading 3) 15(b) Deviation from the pleading at trial (affirmative defense not pleaded, plaintiff starts using a different legal theory, etc.) a) Trial court discretion (15(b)(1)) court should freely permit when doing so will aid in presenting the merits AND objecting party cannot show prejudice (1) Justice-seeking, truth-seeking (2) Balance of persuasion put on objecting party not party seeking amendment (3) The deeper you get into a case, the more resistant a court will be to allowing the amendment 4) 15(c) Relation Back a) Can amend pleadings to relate a new claim back to the original pleadings after the statute of limitations has run as long as: b) 15(c)(1)(A): applicable statute of limitations allows it Erie and progeny c) 15(c)(1)(B): will allow relation back if new material is out of the same conduct, transaction or occurrence Gibbs (1) Policy compromise: can say that the defendant knew or should have known that its behavior was being called into question d) If youre in a diversity case in a state that doesnt allow relation back but the amendment arises out of the same occurrence: (1) Theres a federal rule dealing directly with relation back issue: 15(c)(1)(B) is not limited to federal question cases (a) BUT you can argue that relation back would abridge/modify/enlarge a substantive right, which would not be a valid exercise of power under 2072 (i) Federal court trying to make a substantive claim live longer than a state court would allow it to live (Hanna problem) 5) 15(c)1(C): Relation back is allowed if amended complaint arises out of same conduct in original complaint and the new party is aware of the action within 120 days of filing original complaint a) Worthington v. Wilson (1992): Worthington sued Police Department for unnecessary force; Complaint filed exactly 2 years after incident, on February 25, 1991 included three unknown named police officers; Complaint amended on June 17 to name two actual officers who arrested Worthington (1) Articulates 15(c)1(C) standard (2) Here, Defendants were aware within specified time period (a) Relation back is not allowed here no mistake concerning identities of parties (b) Cannot replace an unknown party with actual parties b) Cannot apply the state relation back statute: federal courts use state law only when federal law neglects the topic

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E. DETERRING FRIVOLOUS PLEADINGS

1) SEE Rule 11: makers substituted lawyers signature for party verification; Creating an appropriate screen to keep out frivolous claims is a continuing issue in all legal systems 2) 1993: Rule 11 gets softened (rule as you see it now) a) Critical changes: (1) Safe harbor provision 21 day grace period to back out (2) Sanctions softened b) Writers articulated that deterrence alone is the objective (1) Indicated that the court was to award a sanction to deter monetary sanctions have declined precipitously (2) Strange sanctions: publicize sanction opinion, teach high school civics, etc. c) Motion practice has decreased: Continuing effect on bar that they are still obliged to stop and think, look to Rule 11(b) and comply 3) Magnifies when: a) Litigation becomes ideological (civil rights, etc.) b) Cases get larger and phenomena get bigger, more money on the table than ever before 4) If youre going to ask private citizens to help governmental agencies police statutes, you cannot expect the plaintiff to be an expert in the topic a) Once you start imposing an intelligence/education test on plaintiff, you undermine citizen access with an elitist standard b) Class actions: adequacy of representation 5) Consider how Twombly might affect Rule 11 (if at all)? 6) Surowitz v. Hilton Hotels (1966): Dora Surowitz filed a class action on behalf of stockholders in Hilton Hotels; Irving Brilliant, son-in-law with a Phi Beta Kappa key, investigated possible problems with Hilton and explained complaint; Counsel signed pursuant to Rule 11; Hilton moved to dismiss as sham pleading a) Rule 23(b) was written to discourage strike suits by people interested in a quick buck not the case here, so the lower courts acted in error b) Surowitz only interested in her own investment and her own money c) No evidence that Brilliant sought to do the corporation injury (1) His own investment indicates confidence in corporation d) Federal rules are meant to get away from procedural booby traps that prejudiced unsophisticated pleaders e) Rules should guarantee that bona fide complaints are carried to adjudication on the merits (1) Court strikes a blow for citizen access 7) Hadges v. Yonkers Racing Corp. (1995)

X. JOINDER OF CLAIMS
Millers Approach to Joinder: A. Trilogy One: 1) Joinder of claims What claims CAN you join? (Rule 18) 2) Permissive joinder of parties What parties MAY you join? (Rule 20) 3) Compulsory joinder of parties What parties MUST you join? (Rule 19) B. Trilogy Two Trying like things together(judicial efficiency and economy) through 1367

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1) Counterclaims (Rules 13(a) and 13(b)) 2) Cross claims (Rule 13g) 3) Third Party Claims (Rule 14) C. Trilogy Three 1) Interpleader 2) Intervention 3) Class Action **ON EXAM: ASK YOURSELF WHICH ONE OF THE NINE UNITS ARE YOU IN?** A. 1.1: JOINDER OF CLAIMS: (Rule 18)sentence on exam (ANYTHING). 1) Code System/some states: join any claims from same T&O, or related T&O. 2) Federal Practice/many states: totally permissive, no relation needed. 3) Federal question a) One sentence Since Rule 18 permits a plaintiff to join any claims he or she has against the defendant, joinder is proper. 4) State question a) If state X follows the federal rule on claim joinder, any claims may be joined by a plaintiff, and therefore joinder is proper. b) If state X follows the more traditional rule of demanding that claims be transitionally related to be joined, then, on the facts of the problem given me, since all the claims emanate from a single auto accident, or a single airplane crash, or a single contract, the transaction and occurrence requirement is satisfied and joinder of claims is proper. 5) Note: if the claims are so different, theres no efficiency, or there is prejudice, then the court uses Rule 42b to separate the claims and package them more appropriately. B. 1.2: PERMISSIVE PARTY JOINDER (Rule 20)Paragraph on exam (T&O + CQ) 1) Rule 20: T&O + CQ = permissive party joinder: 2 part test! a) T&O: any parties whose claims (P) or whose potential liability (D) stem from the same T&O, or a series of T&Os. b) Common question of law of fact which ties parties together. 2) Rule 20: T&O + CQ a) Its almost certain that if there is a T&O, there is also a common question. b) Deals with transactions, not causes of actionthe standard isnt CNOF! c) Example for test: the standard for permissive joinder of parties is common question and transaction or occurrence. Since the complaint alleges that all the Ds were involved in the conspiracy, there is a common question of conspiracy and a single transactionthe formation of the conspiracy. (1) Unless you are dealing with dramatically different events, you will join. 3) Same standard for joinder of P and D a) Its better to keep the door open herejudicial efficiency achieved in trying like together. b) If joining the permissive party would create prejudice, the judge is free to refuse to join them. (1) Remember, under 42a, the standard is just CQ, not T+O judge has discretion here to consolidate at will. (2) Under 42(b), judge can always separate parties/actions at will. c) Ability to join is good for the D, because you get a more expansive preclusion effect. C. 1.3: COMPULSORY PARTY JOINDER (Rule 19)can be full essay

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1) Ask 3 questions: a) Who MUST be joined? (Under 19(a)) b) Can you join them? (Diversity and PJ) c) If there is no smj/personal jurisdiction, what should court do? (Under 19(b) 2) Rule 19 worries both about parties already in the court and about people on the outside of the existing action. This part of the rule can be construed to apply or not to apply. If you construe it to apply, there can be an Erie problem. For example, it may create a conflict with state tort law because under state tort law, a plaintiff is free to pick and choose between joint tortfeasors; there is no compulsory joinder for joint tortfeasors a) If you dont have jurisdiction over a person, you cannot use 1367 to bring them in. PJ! 3) Question 1:Who should be joined? a) Rule 19a: who are necessary parties, or parties without whom the action should not proceed; parties needed for a just adjudication; persons who should be joined if feasible (will not destroy subject matter jurisdiction) b) Rule 19a1: Must be joined if it will avoid prejudice to parties in lawsuit: (1) if not joined, you cant grant complete relief to the parties in the suit. (2) Examples (a) specific performance of K: 5 component parts fr a widget, you need all the parts to make the widget, and thus all the people. (b) Property: subdivision of land owned by 5 peopleneed all 5 co-owners. (c) Distribution of estate or insurance policy: need everyone before the court. c) Rule 19a2: Must be joined if it will avoid prejudice to party not joined (1) If not joined, prejudice outsiders rights. (2) Rule 19a says a persons absence may, as a practical matter, impair or impede that persons ability to protect his or her interests. (3) Examples: (a) Adjudication of the rights to a limited fund (insurance policy): People before the court may exhaust insurance policy, leaving nothing for outsider. (b) Goal: Join everyone! (i) Exception: historically, joint tortfeasors have the right to not be joined. Its totally up to the P whether he wants to be joined. 4) Question 2: Can the court join the outsider? a) If you want to join an outsider as a 19a party, you MUST analyze whether you can at all Jurisdiction issue!!! b) Reasons why not: (1) Destruction of diversity (2) No personal jurisdiction (must do min contacts test) 5) Question 3: a) Outsider is a 19a party, but there is no sjm/personal jurisiction! What now? (1) Historical solution: dismiss the action for want of an indispensable party i. Rule 12b7: vestige of this b) Modern courts: dislike dismissing action for want of an indispensable party (1) Usually they wont declare someone indispensable so they dont have to dismiss19b is a countervailing force to minimize the 12b7. (2) But: sometimes you really DO need everyone (part owners of property, for example)

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c) Rule 19b: Determination by court when joinder isnt feasible. The court has the discretion to shape relief and do partial justice to those before the court. (1) Court has to decideis this person really essential to the action? (2) Unless theyre REALY essential, the attitude is: Go forward and do the best it can!! Invocation of the tradition of the equity judge. (3) Example: (a) Insurance policy: 4 claimants in, 5th cant be brought in for some reasona possible solution would be to put the policy in escrow. If he shows up, there it is. (b) On an exam, simply show that there is usually no need to dismiss for indispensability. Just do the best you can as a judge. (4) FOR EXAM: When asked, do I have to join D? (a) Determine whether the outsider is a required party or not, If not, youre done. If yes: make sure under the facts that you have personal and subject matter jurisdiction question. (b) A Rule 19 question may actually be a pj or smj q or both. Which would require development of that issue. (c) If you can get jur over them youre done. But if you dont have jurisdiction over them, you must look towards 19(a) 1 (B). (i) This subdivision says to the judge: Look, if this party must be joined, and you cant get jurisdiction, be creative! (ii) The judge is supposed to make it work (SO I SHOULD TOO!) D. 2.1: COUNTERCLAIMS: Rule 13 1) Compulsory Counterclaim RULE 13(a): any claim arising out of the T&O that is the subject matter of the opposing partys claim (logical connection- normally temporal) a) If D brings counterclaim, P is required to bring compulsory counterclaims of his own, if they are transactionally related (1) T&O test requires a logical relationship between the claim and the counterclaimthese claims have different causes of action but they are a related series of T&O. (a) Very broadcan include things separated by time, space (For judicial economy expands the courts jurisdiction). (2) Consequences of non-assertion if this is compulsory, then you are waiving it by not filing! (a) Cautious litigant brings all claims nowif not 13a, then = 13b and voluntary (and possibly supplemental jur? CHECK?!!) b) If either party fails to assert a compulsory counterclaim, he waives his right to assert it later c) Policy reason: efficiency and economy, evidentiary overlap because theyre from the same T&O d) Supplemental Jurisdiction: 1367: CNOF, same case & controversy: even if claim lacks diversity or lacks amount in controversy you can still bring it under courts supplemental jurisdiction (remember that we dont know if there is a perfect correlation between CNOF and T&O- before 1367 there was the belief that all compulsory counter claims were ancillary under Gibbs- maybe it isnt and not all

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13as are supplemental- state assuming that same T+O means same case/controversy) (1) No reference to series, so somewhat narrower than permissive joinder of parties (2) Clear that you cant bring an unasserted compulsory CC in a federal court, probably true that you cant bring it in a state court because the state court would give effect to the federal principle (especially if they had their own CC rule). In federal court, stopped by Res Judicata because separate causes of action (But, in state court, Could be a York issue outcome determinative. Might have to look towards Rules Enabling Act here!! OR Inverse Erie if it is a federal claim!). 2) Permissive Counterclaim RULE 13(b): Everything else that isnt compulsory. Can assert any claim you have: a) A pleading may state as a counterclaim any claim against an opposing party not arising out of the T& O that is the subject matter of the opposing partys claim (1) New parties may be brought into suit as part of a counterclaim provided there is jurisdiction (CHECK!!) (2) No Supplemental jurisdiction under 1367 *(unless somehow related to case in controversy but will prob. be compulsory if that is the case) E. 2.2: CROSS CLAIMS- Rule 13g and 13h: 1) Co-parties can Cross-Claim against party at the same level of the action/same tier (dont go across the V) 2) Cross-claims must arise out of the T or O that is the subject matter of the original action or a counterclaim therein a) Courts will tolerate broad counterclaims because they are about the same fight but cross-claims are limited because dont want the cross-claims to disrupt the original lawsuit b) Cross-claims are thus completely permissive and carry a T&O requirement (no compulsory cross-claim!) (1) However, once get cross-claim under 13g, then opposing party is obliged by 13a, compulsory counterclaim, to file any compulsory counterclaims against crossclaiming party (2) Q: Do we allow permissive counter claims in response to cross claims? 3) Supplemental Jurisdiction: Same T&O, even if there is no diversity of citizenship, or no amount in controversy, it can be supplemental to the base claim- after base claim has original jurisdiction all have supplemental. (T&O CNOF Issue once again) F. 2.3 THIRD PARTY CLAIMS - Rule 14(a): 1) Actions for contributions, indemnity, etc D (usually) tries to shift liability to someone not in the original lawsuit. *its not me, its him!+ a) Rule doesnt specifically say T&O says actions over but all 3rd party claims must emanate from the underlying claim logical relationship, series of T&Os, etc b) No limit to 3rd Party Practice (can potentially bring in endless new parties) c) The third party defendant can assert any Rule 12 defense or rule 13 counter claims, and may assert any cross claim against other third party defendants. (1) Also once D brings in a third party D, original P can amend and claim directly against the third party (unless jurisdiction is destroyed like Kroger)

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(2) Once a new party is brought in under 14, have to raise any compulsory counter claims under 13a against third party P and original P if it passes the same T&O test (a) Unlike counterclaim and cross-claim, in effect brings a new action (b) REMEMBER: Bringing in a new party raises all traditional PJ and SMJ issues, service of process, notice and opportunity to be heard (c) If plaintiff cant get supplemental jur, then has to take claim against 3rd party to state court due to 1367(b) (i) Owen v. Kroger: If you wouldnt allow plaintiff to sue Owen directly, shouldnt allow her to do that indirectly by virtue of the 3rd party defense practice procedure. There was no supplemental jurisdiction because adding destroyed diversity. 1. Or just wait until you go somewhere where you can get SMJ and PJ 2) Any party can move to strike a third party from being added to the original claim, or move to separate the trial if it is a separate T & O a) REMEMBER: Under 1367b - no supplemental jurisdiction over claims made by original P against people who are parties under Rule 14 (1) There is supplemental jurisdiction, same case and controversy, and would have supplemental if there was a compulsory counterclaim between the parties. G. 3.1 INTERVENTION: Rule 24 1) Outsider says he belongs in the case because his interest is not being protected a) Always a concern that the outsider will muck it up for those already involved (1) Division between permissive intervention and invention as a right (a) Rule 24a: applicant has a right to intervene when either (i) US statute confers an unconditional right to intervene, or (ii) Disposition of action may impair or impede applicants ability to protect his own interest 1. Must demonstrate that interest is not adequately represented by existing parties 2. This rule is the other side of Rule 19apersons that must be joined when feasible (iii) Property interest usually treated as a matter of right (b) Rule 24b: applicant may intervene when (i) US statute confers a conditional right to intervene, or (ii) Applicants claim or defense and main action have a question of law or fact in common 1. This rule sounds like other side of Rule 20apermissive joiner though only common question required here, whereas 20a requires T&O and CQ 2. Much less likely to permit if doing so destroys diversity (iii) Efficiency/Economy in including- also binds the intervener (iv) No supplemental jurisdiction for permissive interventionbut if there is a common T & O, then maybe it will be allowed. (c) 24(c): Procedure. Serve a motion to intervene on the parties under Rule 5. Motion shall state the grounds and shall be accompanied by a pleading setting forth a claim/defense for which intervention is sought.

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H. 3.2 INTERPLEADER: Rule 22, 1357 1) Joinder designed to protect stakeholder (person holding property) that has property that multiple parties are trying to claim from inconsistent claims on property. A way to bring all the claimants together in a single action in order to avoid multiple litigations and inconsistency of results. Used because res judicata doesnt prohibit subsequent claimants to sue for same property 2) Proscribed for in both a federal statute and a federal rule a) 1357: $500 requirement, nationwide jurisdiction (maybe global), creates form of federal jd that only requires minimal diversity of citizenship b) Rule 22: $75K requirement, no federal national jurisdiction (must use long-arms), requires complete diversity of citizenship 3) New York Life Insurance v. Dunlevy: Personal JUR required over all claimants. a) Leaves state-court interpleader actions open to only suits where residents are involved. Most state courts dont have long-arm broad enough to cover interpleader claimants b/c they arent usually doing business in the state. b) Same thing for federal, cant usually use long-arm statute. Generally governed by FRCP 4, serving process to get PJ. BUT, Congress implemented National Process for interpleader, so can serve them unless they are outside US. 4) Lundeen v. Cordner Example: MOMA owns Guernica, Picasso dies, they give it to the court because otherwise all manner of folk will sue them for ownership. Then they become a P in the action to try and get Guernica. a) Procedure: Stakeholder applies for an order to interplead, which is reviewed by the court. Once it is granted, stakeholder can withdraw and let claimants fight it out or remain in the suit to contest certain claims as another claimant.

XI. CLASS ACTIONS (3.3)

K. The CLASS ACTION SUIT: Every Plaintiff Deserves His Day in Court: Rule 23 A) Generally: a) Class action developed to address situations in which it isnt feasible for P to sue individually or for all those relevant to a dispute to be joined in single action (1) Designed for efficiency and economy (2) Began with Civil Rights movement and expanded b) Judge has to balance the advantages of single adjudication with notions of fairness to absent people whose claims may be extinguished by action c) Two ways to look at class action Joinder device or Representational device (1) Rules governing class action arent adversarial d) Judge has a fiduciary relationship to the absentees (1) Make judgments of adequacy of representation (2) Monitor performance of lawyers and reps throughout action (3) Must approve settlement B) Procedure of a Class Action: 1) Initiation of Class Action: (a) Same as other lawsuits filing complaint and service of summons (i) Difference: filed in representative capacity

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(ii) Represented parties said to be absent; probably dont know lawsuit is even being filed (b) Complaint: Claims of named P + classwide allegations of unnamed Ps 2) Diversity: Now, only representative must be diverse from D 3) Amount in Controversy: (a) Historically: (i) Every member had to have a claim of over 75K People were using state courts (ii) Ps could not aggregate claims: and there was no supplemental jurisdiction even under 1367 (see Zahn and Abbott) (b) CAFA changed the requirement: Basically, all class actions go to federal court now (i) Diversity provisions: Any class with amt in controversy over $5 million + minimum diversity = federal court (ii) Removal Power: Ds can remove to federal court (iii) Prompted by the fear that if you left mass tort cases in state courts, more P oriented/liberal judiciary creates a risk for corporate America C) Due Process Considerations: Jurisdiction Requirements: 1) Personal: Must satisfy for D, but what about for P? (a) Philips Petroleum v. Shutts (Sctous 1985) (b) Do not need to satisfy minimum contacts (ala Shoe, Denkla, Woodsen) to adjudicate interests of absent class members, but forum state must have sufficient interest in the claims (i) Difference between absent class action plaintiff and out of state defendantnot haled anywhere, court and named Ps protecting their interests (c) Due Process requirements are met and bind an absent P if (i) Have adequate representation: 23(a) 4 (ii) Notice of action: Mullane standard 23(c) 2 (iii) Chance to opt out (in damage class actions) 2) SMJ (a) When suit based on federal question no problem (i) Antitrust, Securities (b) With codification of 1367, many class actions are hybrid state-federal claims (i) State claims piggy back on federal claims to get into federal court (c) Historically, citizenship is based on representatives citizenship (not part of amendment to 1332 that changed citizenship of representative to infants, deceased incompetents) (d) Class Action Fairness Act (2005) (i) Class action can be brought into federal court originally or by removal if any class member is diverse from and Dminimal diversity (ii) 1332(d): minimal diversity with class action where aggregated claim of class is over $5 million can go federal (e) Substantive law can be created by the federal court: (i) Erie Issue! Nothing in diversity statutes indicate that Congress intended courts to create federal common law for application to federal class actions (f) Amt. in Controversy:

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(i) Exxon Mobil v. Allapattah Services: One P meets the amt. in controversy required to bring diversity suit in federal court. 1367 authorizes jurisdiction over the claims of the other members of the class, even if those claims dont independently meet the required amount in controversy. D) Certification 1) 23(a): The Six Prerequisites (a) Definable group: Must have a class (Implied) (i) Cant be too broad, too specific, too vague (b) Class Representative must be a member of class (Implied) (c) 23(a) 1: Numerosity: Class is so numerous that joinder of all members is impracticable (i) 40-100 court decides, 100+ good, less than 25 no good (d) 23(a) 2: Commonality: There are questions of law or fact common to class (i) Low threshold even one significant common question may be sufficient (e) 23(a) 3:Typicality: Representatives claims are typical of class (i) Claim from same course of events, same arguments about Ds liability (ii) Dont want representative litigating something not relevant to rest of class (f) 23(a) 4: Adequacy of Representation: Representative party will fairly and adequately protect the interests of the class (i) Due process concern since binding Ps who havent literally had their day in court (ii) Absent party not adequately represented can collaterally attack against class action judgment (iii) There is a constitutional requirement (Shutts) 2) 23(b): Types of Class Actions After judge decides the 6 prerequisites are fulfilled; must figure out if it falls within one of 3 categories (a) 23(b) (1)Prejudice Class ActionsMandatory if certified; absentee cannot opt out (i) 23(b) (1) (A) Prejudice to the Non-class Party (Defendants) (a) Where different results in individual actions would place the non-class party in position of uncertainty, not knowing how to treat class as a whole (b) Ex. voting rights; if some lost and some one, election board wouldnt know how to register rest of class (ii) 23(b) 1 (B) Prejudice to Members of the Class (a) Individual actions would impair or impede the ability of nonparties to protect their interests 1. Ex. Multiple claimants to insurance fund; first to sue will deplete fund. (b) 23(b) (2) Injunctive or Declaratory Relief (Like civil rights) (i) Primary application is injunction suitscivil rights, employment discrimination (ii) Goal is to change Ds behavior (iii) Ds conduct need be only generally applicabledoesnt need to be damaging to everyone in class. (c) 23(b) (3) Damage Class Action (i) Not Natural class!

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(ii) Usually used for mass torts (iii) Certification when tie among members is that they all claim to have been injured in same way by D (iv) 2 Special Prerequisites (a) (1) Common fact to class members must predominate over questions affecting only individual members (b) (2) Class action is superior to other methods for adjudication (c) 23(b)(3) outlines 4 factors court should consider in deciding superiority and predominance 1. Killer issue: Difficulties likely to be encountered in management (v) No one really knows what predominance or superiority really means, but certification will often turn on these questions (vi) Mandatory notice, and right to opt out of class (d) **Lawyers try to press their cases into (b)(1) or (b)(2)no predominance or superiority, so (b)(3) increases risk of non-certification of class (e) 50 State law Problem: (i) In nationally based class, you must look at 50 state laws under Erie, unless theres good reason for applying one particular law (a) Defense: We have a 50 state law problem herethat means we have an unmanageable class action not superior (ii) Dont have 50 state law problem for federal claims unless you tack on state claims 3) 23(c): Certification Decisions (a) (1) Certification Order: defines substantive claims, issues, or defenses the suit will consider (b) (2) Notice: (i) (A) For b1 or b2 classes, court decides (ii) (B) For b3 : best notice that is practicable including individual notice to all members who can be identified through reasonable effort (a) For b3if does nothing automatically a part of lawsuit, needs to opt out; bar future re-litigation of claims (b) Plain easily understood language (c) If its a hybrid ie. seeking injunction and monetary relief, notice is likely mandatory (iii) Costs (Supreme Court decidednot in Rule 23) (a) Costs of providing notice will be borne by party seeking class treatment 4) 23 (f): Interlocutory Appeals From Certification Orders (a) Certification is most critical stage in life of class action (b) Appeal must be filed within 10 days after order is entered E) 23(g): Orders Appointing Class Counsel 1) Class action setting, majority of class didnt get to choose the lawyer F) 23(d): Orders Regulating the Conduct of Pretrial and Trial Proceedings 1) Court may create discovery timetable, time limits on oral presentations, establish counsel committee 2) Individualizationassure efficiency and fairness

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(a) May use single trial to determine liability, if found guilty second trial for damages (b) Samplingtry a few random cases and combine outcomes (c) Fluid class recoverycost of identifying and distributing award exceeds award; class award is used as general benefit to class Ex. taxi cabs lower rates for period of time G) 23(e): Settlement 1) Most class actions settle: rather then roll the dice at trial 2) Any decision to settle, dismiss, or compromise must be approved by court! 3) Settlement must satisfy 23(e)(2) Fair, reasonable, and adequate (a) Whether class as a whole approves is important consideration 4) CAFA 1712 (a) Special requirements when settlements rely on coupons that permit class members to purchase goods at discount from D H) 23(h): Attorneys Fees 1) Court is authorized to award a reasonable attorneys fee 2) Use different approaches may be percentage; lodestar--look to number of hours and multiply by normal billing rate, and adjust up or down CASES: Ortiz v. Fibreboard Corporation (1999) Fibreboard had already settled 45,000 asbestos claims; Created a Global Settlement Fibreboard and its insurers would set up a $1.525 billion fund for asbestos claimants; 23(b)(1)(B) limited fund class o Record failed to demonstrate that the fund was limited except by agreement of parties Limited fund is not the best that can be provided for class members o Certification falls short on equity among the class members Inclusiveness of the class Class excludes groups of claimants with foreseeable causes of action arising from exposure to asbestos (as much as 1/3 of perceived claimants) Fairness of distributions Settled inventory claimants have obtained better terms than class members No division into subclasses (Amchem) with separate representation o Rule 23 requires protections under (a) and (b) independent of the postcertification fairness review for settlement Castano v. American Tobacco (5th Circuit, 1996): Class action for all nicotine-dependent people in the US who purchased cigarettes from the manufacturer defendants; Defendants failed to inform consumers that nicotine is addictive and manipulated level of nicotine in cigarettes to sustain addiction; 23(b)(3) o Variations in state law affect predominance and superiority o Predominance: Need to look beyond the pleadings: must understand the claims, defenses, relevant facts and applicable substantive law

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That common issues will play a part in every trial does not make them significant would write predominance requirement out of the rule Reliance would need to be proven in individual trials not a class issue o Superiority: Extensive manageability problems variations in state law, Erie problems, notice to millions of class members, subclassing, determining who is nicotine-dependent Judicial efficiency is lacking Immature tort no court have ever tried an injury-as-addiction claim Amchem Products v. Windsor (1997): Class action certification for a global settlement of current and future asbestos-related claims; not intended to be litigated; settlement plan created an administrative mechanism and schedule of payments (not adjustable for inflation) o Settlement is relevant to a class certification speaks to adequacy of representation o Do not need to consider whether there would be trial management issues Attention to issues of class definition are more important no opportunity to adjust class as informed by the proceedings o Still have to satisfy certification requirements of 23(a) and (b) for a settlement, not just overarching impressions of fairness (23(e)) o Predominance requirement (23)(b)(3) is not met Greater number of questions peculiar to several categories of class members and to individuals in each category Differences in state law compound disparities in issues of law and fact o Adequacy under 23(a)(4) is not met Interests of subgroups are not aligned: Currently injured: generous immediate payments Exposure-only plaintiffs: inflation-protected fund for the future

XII.
A. Discovery Rules:

DISCOVERY

1) Rule 26: Duty to Disclose 2) Rule 27: Depositions to Perpetuate Testimony 3) Rule 28: Persons Before Whom Depositions May be Taken 4) Rule 29: Stipulations About Discovery Procedure 5) Rule 30: Depositions by Oral Examination 6) Rule 31: Depositions by Written Questions 7) Rule 32: Using Depositions in Court Proceedings 8) Rule 33: Interrogatories to Parties 9) Rule 34: Producing Documents, Electronically Stored Information 10) Rule 35: Physical and Mental Examinations 11) Rule 36: Requests for Admission 12) Rule 37: Failure to Make Disclosures or to Cooperate in Discovery: Sanctions B. Historically: 1) Equity: discovery designed to preserve testimony

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C.

D.

E. F.

2) Code Period: Expanded in certain categories, pleading had the three functions of fact/revelation, issue formulation Example of Code Limitations: a) Kelly v. Nationwide Mutual Insurance: decided before the fed rules b) State law held that discovery could ask about anything relevant to an issue in the action (as opposed to being restricted to an issue in the pleading) moving towards fed rules (1) Cant seek privileged information (2) Information sought must be admissible as evidence 3) Federal Rule: limited pleading to notice giving, discovery regime developed Philosophical underpinning leveling the playing field, avoiding trial by surprise 1) Everyone has equal access to all relevant information maximizes likelihood that the court gets it right Discovery enables summary judgment to work 1) Designed to determine if there is a triable issue, or if there was a way to resolve the case without trial by enabling judge to work with the pleadings augmented by discovery productivity? 2) Trying to avoid trial if there isnt a reason to go to trial Discovery is intrusive at many levels: functioning of entity, privacy, economics of litigation Only 50% of federal cases have discovery at all, and discovery is only limited to 10 events 1) In lengthy, complex civil cases (10%) there are more than 10 events

Federal system determines scope of discovery, discovery mechanisms Discovery Prior to Litigation Basically none o May think that it would be important for framing a complaint, but pre-action discovery is narrowly defined in order to avoid harassing people Rule 26b1 Federal standard broadens discovery scope and limits o Discovery on any matter not privileged that is relevant to the claim or defense of any party Relevant to a claim or defense scope plaintiffs always fight to maintain this open scope, defendants always fight to narrow it Claim or Defense issue (although really there are no issues framed in the pleadings) It was changed in 2003 from relevant to the subject matter in order to try to symbolize limiting the scope of discovery o Good cause anything related to the subject Matter if there is a difference between earlier and current scope the court has the ability to widen o Materials dont have to be admissible at trial to be discovered at this stage but has to be reasonably calculated to lead to admissible evidence (cant just go fishing) o Doesnt include Privileged Stuff: Attorney-client, priest-penitent, dr-patient, spousal. These things TRUMP discovery- you cant get at them. Can waive priv. if you want. o Rule 26(b)(2)(C) discover can be limited where it is unreasonably cumulative or the burden of discovery outweighs the benefit. o Rule 26f parties mandated to get together and negotiate discovery before judicial conference

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Rule 34c Persons not parties can be compelled to produce documents or things or to submit to an inspection. But it is done under rule 26 (discovery) and rule 45 (subpoena). Rule 26c Protective Orders o Protective orders have been a battlefield for over a decade o Raises issue whether a civil litigation is a public or a private processDemonstrates some sense of privacy Discovery drafters thought it was a private processscope of discovery much broader than the scope of admissibility Many go to alternative dispute resolution to gain the privacy they cant get in court Seattle Times v. Rhinehart: newspaper orders donor list/member list for discovery Court grants discovery, but with a protective order 1. Doesnt want people using discovery regime cavalierly, for ulterior motives Illustrates the extraordinary discretion of the trial judge, as far as what is/isnt discoverable 1. All of these discovery orders are interlocutoryrarely appealable Although media doesnt like this case It didnt keep them from getting the information from other sources, or using it for background just said you cant use it as a weapon. Settlement o Parties many times agree that the record will be sealed, and P wont be allowed to talk about terms, may also require the return of discovery documents. PP: Argument that through this public threats to health and safety are hidden (others say OK because normally defect has already been corrected and it would just be embarrassing). Not sure of full effect. Argument that without privacy would reduce the likelihood of settlement and there is a public interest in settlement. 1. Some states have responded with sunshine in litigation laws and there is pressure to amend 6c Scope is Connected to Substantive Law o Striking questions based on relevance- scope is always contextual o Income discussions if punitive damages are an issue (why Ps love punitive damages because they widen the scope of discovery) o

1. DISCOVERY DEVICES 1. Mandatory disclosure (Rule 26a) automatic obligation to turn over certain informationregardless of whether anyone asks for it or not o Documents, witnesses, damage computations, insurance policies qualify for mandatory disclosure

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These are things that the rulemakers believe are so obvious, central, and important to getting going that no motion should be neededmainline basic stuff o Dont get to discovery until youve gotten through disclosure o Problems Philosophically: against the adversary system model Adds a layer to the process, costs money and consumes time, have to meet and figure out if each side has complied with it 2. Deposition (Rule 27-before action; Rule 30-after action is instituted): can question any person (party or not) under oath regarding subject matter of the case o Looks like a trial but with no rules of evidence. Adversaries, witnesses sworn, cross examination, rebuttal, all transcribed. If witness may be unavailable can videotape o Notice is only required if deponent is a partycan force a non-party with a subpoena o Positives: spontaneous- respondent must answer on the spot, scope is wide (so few permitted objections to any particular questions), opportunity to appraise witness (content/demeanor), get to substance (identify what is knowable/known/appraise case), measurement rod for settlement o Bad: Costs a lot o Respondent must answer all questions depositions can include things that are inadmissible i.e. not an objection that theyre talking about hearsay o Rules 31, 33 limit each party to 10 depositions (up to 7 hours each) without a court order 3. Deposition on written questions rarely used; can also be directed at anyone o Saves money (oral depositions are very costly), and works well when the witness isnt antagonistic, get spontaneous reactions and videotape to show demeanor o Downside is that you arent thereyoure stuck with whatever questions you sent in advance, cant react to what the person says However, if something shows up, can opt to orally depose the witness 4. Interrogatories questions sent to other party who answers them with lawyer and sends back o Work shifters less cost for questioner, more for answerer; easier to write questions than answer them o You can only propound interrogatories to a party, not to a witness o Gives interrogating party the benefit of the entire information base (not just what other party knows personally) o No spontaneity, no demeanor, no opportunity to catch word/phrases/reactions. Honesty requirement but no super compulsion to tell the truth (shaded to help yourself) o Many lawyers use as a sweep find out who knows what, and then depose them o Interrogating party writes out all their questions, limit of 25 (otherwise have to ask court) Rule 33 used to get baseline data, used for things with a specific answer

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5. Document discovery / land inspection (Rule 34) access to land, machinery, laboratories, computer systems, and electronic data o Following conference in accordance with Rule 26d, just give notice about what you want to see o This discovery device now becoming as important as depositions in products liability, etc o Electronic Discovery Zubulake v. UBS Warburg (2003): Zubulake suing UBS for gender discrimination and illegal retaliation; contends that key evidence is located in email exchanges that now exist only on back-up tapes; cost of restoring emails would be $175,000 (without attorney time to review) o Zubulake is entitled to discovery since the emails are relevant to her claim o Three-step analysis: Court must understand the responding partys computer system/active and stored data For data kept in an accessible format, usual rules of discovery apply o Not unduly burdensome responding party pays cost of production Court considers cost-shifting only when electronic data is inaccessible Court must determine what data may be found on the inaccessible media to determine value of cost-shifting Require responding party to restore and produce responsive documents from a small sample of back-up tapes Seven factors should be considered to conduct cost-shifting analysis (p. 813) 6. Physical/Mental examinations (Rule 35) court order to submit to examination o Only discovery device that requires a motion and subsequent court order for imposition o Rule requires def to establish two required elements before court issues order Good causeneeds info from the exam that it cant get elsewhere In controversymatter being examined is specifically in dispute in the case o Closest of all fed rules to violating the Rules Enabling Act Does it abridge, enlarge or modify a substantive right (privacy). If it doesnt, then Hanna immunizes it. Its a Roe v Wade or right to die caseimplicate right of privacy; or, at least in Roe, the right of physical, bodily privacy. Is this the first Rule that is invalid because its unconstitutional?? Well you can at least use it for Psif you yourself put it at issue. Seattle Times: the only justification there was a legitimate state interest. Well arguably you can say the same thing about Rule 35 when its put up against the privacy cases. These can be biopsies, MRIs, spinal tapsthey have consequences, possible fatalities Whose doctor? Can you bring your lawyer?

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Schlagenhauf v. Holder: co-defendant (cross-claim) moved for an order directing Schlagenhauf, bus driver, to a physical exam by one specialist each for: internal medicine, eye exam, neurology and psychiatry; Schlagenhaufs physical/mental state in controversy because affidavit alleged that Schlagenhauf had seen red light 10-15 seconds before accident o Sibbach v. Wilson: rule 35 is valid Schalgenhauf extends Sibbach to defendants no reason to favor one class of litigants Sibbach: initiation of litigation is waiver, so it is acceptable to submit them to exam Refutes that logic: plaintiff did not choose to have injury occur that puts case in motion o Rule 35 requires an affirmative showing by the movant that each condition for examination is genuinely in controversy + good cause exist for ordering each exam 7. Request to Admit Rule 36 Issue is so clear the other side cant deny in good faith. Once admitted it is out of the caseno need to be proven. Rarely utilized- difficult to get an admission so just produces paperwork and motion practice. Procedure: i. Fatal decision is to do nothing forfeit issue, you can deny (but subject under sanctions of Rule 11 and 37), say you dont know, or have an on information and belief statement for denial/admittance. Not really a discovery device, classified because its closer resolution/adjudicatory Expert Provisions: Experts play an important role in modern complex litigation (economists, technological experts, scientists) 26a2b: Have to disclose your experts, and say what theyre going to say (although usually very generalized) data, exhibits, qualifications, complete statement and basis, list of other cases in previous 4 years witness has testified at, compensation 24a2c: have to make disclosure at least 90 days before date set for trial or case ready for trial. Or if only intended to contradict or rebut evidence identified by another party under 26a2b within 30 days of other partys disclosure. 26d4a- a party may depose any person who has been identified as an expert, if a report is needed only after the report has been filed. Trial preparation. Payment. Judges Role in Managing Discovery Uses the power under management Rule 16 o Judge may decide that there is one particular issue that we should drive towards like statute of limitations or assumption of risk- single issues that are life/death. Judge may hen set time frames/requirements and say that you only have discovery on this one issue and no merit discovery until resolved.

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Endless series of conferences with judge- status conferences, different pretrial orders governing the next stage in discovery 2. WORK-PRODUCT DOCTRINE- Rule 26B

Hickman v. Taylor: greatest discovery case o Lawyer performed extensive work (interviewing, etc) before case was brought o P brought suit and filed an interrogatory requesting basically everything from lawyer (copies of all statements taken in connection with accident, and if oral, summaries of the statements) o SCOTUS said this is essentially an attempt to get inside the head of the opposing counsel, without justification since plaintiff can interview witnesses himself Not a privilege case, because not about attorney-client communication But the information is attorney work-productneed a good reason for obtaining it If this case didnt exist, lawyers would wait for opposing counsel to do work and then just ask them to turn it over In the alternative, would lead to lawyers not writing anything down, which is also bad o SC doesnt create a lawyers privilege, but a qualified immunity If cant get a substitute, immunity is trumped in the name of access to all relevant data; but if there is a substitute, immunity holds- No substitute because it is a hostile witness/dead/away Rule 26b Codification and extension of the Hickman rule o A party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party (or representative) only upon showing substantial need and unable without undue hardship to obtain substantial equivalent by other means o Court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation If mixed judge will receive documents and cross off all the stuff thats work product o Also extends to a lawyer doing non-legal jobs, notion whatever a lawyer does is impregnated with the attitudes/philosophy towards the case. Rule also embraces non-lawyers acting for the lawyer (PI, Photographer, etc). o When does work product become an issue? After the COA has arisen. Still some ambiguity about what is done in anticipation of litigation. Negatives of Work Product- Over utilization, Friction points Value- judicial independence/lawyer independence 3. Future of Discovery/1993 Amendments

Likely Future Amendment: Electronic Discovery: o Not all emails subject to discovery. Rules are likely to be amended to deal with electronic discovery as we are now awash in electronic information 1993 Amendments /Judicial Management of Discovery

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o o

o o o

Promote management by judges of discovery and tries to further get rid of game playing. Limit to 10 depositions (more with court approval) Limit to 25 interrogatories (more with court approval) Mandatory Disclosures 26(a) controversial. 26(a)(1)(i): Name, contact info of anyone you know who might have discoverable information 26(a)(1)(ii): Copy or locations of documents, electronic data, tangible things relevant to an issue in the case 26(a)(1)(iii): Computation of each category of damages claimed by disclosing party; also material on which computation is based 26(a)(1)(iv): Relevant insurance agreements (under which an insurance co. might be liable to satisfy judgment 26(a)(2): Disclosure of Expert Testimony o Must disclose what experts will testify o Accompanied by written report containing statements and opinions of witness, as well as exhibits they will use Names of potential witnesses/documents you intent to use at trial Other than the amendments, a few other management devices: 26(f): Conference/Planning. 21 days before scheduling conference is held or scheduling order is due under 16(b) parties meet and confer to consider nature/basis of claims/defenses, discuss settlement and propose a discovery plan. 16(b): Scheduling/Planning: DC judge receives report from parties on 26(f) & schedules conference to talk about joining parties, amending pleadings, filing motions, and scheduling discovery. 16(c)(1)- Subjects for Consideration at PreTrial Conferences- shape the case. Articulate that which is actually in controversy and that which isnt. Simplification and formulation of the issues, including the elimination of frivolous claims or defenses. Trial management courts cut down on length of trial. Rule 16 a blue print of trial management. Dont manage tiny cases. Any substantial case will be managed. Settlement goes into rules- in 1983, judges rule as provocateur of settlement is legitimated. Case is managed/ shaped by the judge Want to encourage settlement

XIII. SUMMARY JUDGMENT

A. Generally: 1) Serves as a filtering device designed to shorten trials, motion made in the middle of a case 2) Stages of trial that serve as filtration devicesshould the trial go on? a) Rule 12b6 Motion to dismiss have you stated a claim for relief? (1) D says there is no claim upon which relief can be granted (2) Limited universe to the claim (3) If granted, there is usually leave to re-plead

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b) Rule 12c Motion for judgment on the pleadings (1) If granted, there is usually leave to re-plead c) Rule 12d Presenting matters outside the pleading(1) Demonstrates the interaction between 12 and 56, everyone give opportunity to present material pertinent to the motion. 3) Rule 56 Motion for summary judgment Do you have a claim for relief a) Universal standard = is there a genuine issue of material fact? b) Judge looks at all admissible evidence, to see if it can be resolved as a matter of law c) Because you are denying someone a day in court- very heavy burden on the moving party- although after Celletex and current bench this has lightened. d) Granted When: (a) Ps case has no legal basis (i.e. no legally recognized wrong) (b) No genuine issue of material fact (i) no reasonable jury could disagree with it all (c) there is a iron-clad defense that cant be overcome (i.e. statute of limitations has expired, res judicata applies) e) If granted in effect youre saying there is nothing trial-worthy & produces final judgment with res judicata effectnot appealable f) EXAM: Make sure you dont miss a triable issue of material fact on the exam. Even the absolute slightest chance of the non-moving partys questioning the fact is enough to deny the MSJ. USUALLY DENY g) Issue of Judicial Discretion, Likely to be denied if: (1) There is something shady in the affidavits (2) Credibility is an issue should be tried by jury (3) When the party with the burden of proof at trial moves for summary judgment because juries may always disbelieve the witnesses presented at trial. (4) There is a gap in the evidence that needs to be fleshed out (there are three witnesses to an accident and only two depositions have been presented) h) Procedure (1) Moving party has initial burden of proof to clearly show that there is no dispute of genuine fact (this is the case even if the moving party is the D who would not have a burden of proof on the issue at trial.) (2) If moving party fails to show there is no issue, motion denied (regardless of whether the opposing party showing anything). (3) It is only when moving party has shown that there is no factual dispute that the burden shifts to the opposing party to show that there IS a dispute. 4) Rule 56 a) (a): Any party may move for SJ at least 20 days from commencement of the action or after service of MSJ by adverse party; without or without supporting affidavits. b) (b): D can move at any time. c) (c): Judgment may be entered if on all the evidence- pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, the moving party shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law (same as directed verdict) d) (d): e) (e): A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence

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5) Rule 50 Directed verdict motion judgment as a matter of law; asking is anything juryworthy? a) Essentially the same as a Rule 56 Motionbut timing is different (1) Case is getting more mature, motion-making getting less forgiving b) D claims ps evidence is insufficient, doesnt satisfy the burden of proof c) If granted, produces final judgment with res judicata effectnot appealable 6) JNOV renewed motion for judgment as a matter of law a) Case went to jury, jury ruled, and verdict-loser is making this motion claiming that the case actually shouldnt have gone to a jury b) Same motion as directed verdict, Rule 56reflects back to whether issue was juryworthy c) If judge grants, he changes the verdict 7) Motion for a new trial Highly discretionarye.g. granted when discrimination is found B. The only reason we have trials is to determine issues of factsif no facts are in dispute, judge can rule on case as a matter of law 1) 1Ls often miss this if there are no triable issues of fact in fact pattern, no reason for trial! C. Policy 1) The summary judgment is viewed by many judges as a directed verdict motion at a different point. Is there enough here to send it to the jury? (directed verdict) Is there enough here to make it trial worthy (summary judgment). a) There is a fact/law dichotomy that is also a jury/judge dichotomy. By bolstering summary judgment we push more things onto the law side. b) Commitment to jury trial and the day in court always made judges cautious about granting summary judgment. That has weakened significantly since the 86 trilogy. 2) Some policies for limiting the scope of summary judgment. a) The idea of a day in court is a powerful one. Even though a summary judgment says you dont have enough to get into court, we are still worried about giving final judgment without a jury verdict. b) The 1:1 between summary judgment and directed verdict is suspicious: Summary judgment is based on immature discovery, while directed verdict is based on mature information from trial. Also, witnesses are treated very differently from discovery to trial. c) Transactions cost increase by placing more emphasis on complete discovery (which undercuts some of the cost saving rationale of summary judgment.) d) Notion of plausibility from the Japanese TV case start to creep in on issues generally reserved for the jury. 3) Policies for expanding summary judgment: 1. Save money and resources. 2. Ambivalence towards jury competence compared to judges. 3. Reduces litigation which is important if you believe in a litigation crisis and its effect on American competitiveness. RULE 56(c) CASES: D. HYPO: Student is walking to school, hit in crosswalk. Plan to present eyewitness accounts at trial from various religious figures who will all testify they saw the student in the crosswalk, then saw the car hit him while driving like a bat out of hell. Def plans on putting a less

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credible alcoholic on the witness stand to testify that plaintiff was running, looked drunk, saw the car coming, and shouted hit me, hit me, and that the car tried to stop. 1) Pretty obvious that plaintiff would win at trial 2) Plaintiff makes summary judgment motion, claiming there is no genuine issue of material fact with respect to negligence a) Judge cant consider factsmerely asks are the facts in dispute? (1) Facts are in dispute if we believe defs witness, but at trial we wouldnt believe him (2) But factual disputes should be left to the jury, because regardless of how obvious it seems there is an issue of credibility that the jury must decide 3) This case must go to a jurysummary judgment shouldnt be granted E. Adickes v. Kress: civil rights casewhite teacher eating with black students thrown out of restaurant, then arrested 1) Adickes alleges conspiracy between the restaurant (Kress) and the police 2) Kress makes motion for summary judgment supplies affidavits from police and restaurant manager saying there was no preconceived plan/agreement 3) Justice Harlan says the movant has a burden on a summary judgment motion, even when that party wouldnt have the burden at trial a) Movant has burden to show absence of genuine issue of material fact b) When there is an issue of mixed law/fact, and there are credibility issues, nonmoving party should be able to try and prove their case at trial

F. Lundeen v. Cordner (1966): Josephs life insurance names 2 children from first marriage as beneficiaries; second wife, France, claims that Joseph effected a change in beneficiaries in her favor to trust created in will; France presented affidavits and exhibits and moved for summary judgment 1) Affidavits and exhibits of intervener clearly and undeniably indicate that Joseph made a change to his policys beneficiaries (no counter-evidence from plaintiff) 2) Joseph intended to change the beneficiaries to France and trust a) Uncontested affidavit of Mr. Burks, only person in a position to be aware of wording of document (this alone can serve as the basis for summary judgment) b) No reason to go to trial to measure Burks demeanor (1) Disinterested party: activities in the normal course of his employment (2) His two affidavits are consistent (3) Hes in Singapore dont have jurisdiction to subpoena him c) Specific facts must be produced to question an affiants credibility G. Cross v. United States (1964): Cross, professor of romance languages, traveled to Europe for the summer with his wife and wrote it off as a deduction (education and business expense); Government disputes explanation: trip, or at least part of it, was a vacation; Cross moved for summary judgment 1) Summary judgment is particularly inappropriate when the inferences the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions a) Judges may not draw fact inferences on summary judgment motions 2) Trier of fact will have to ascertain how much of the trip was devoted to education 3) Right to use depositions for discovery does not mean that they are to supplant the right to call and examine the adverse party before the jury

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H. 1986 Trilogy: 1) Celotex v. Catrett (1986):Catrett sued 15 asbestos manufacturers or distributers for husbands death; Celotex filed a motion for summary judgment: plaintiff failed produce evidence that any Celotex product was the proximate cause of injuries/did not identify witnesses to testify to exposure a) Plaintiff failed to make a sufficient showing to establish an essential element of her case b) No requirement in Rule 56 that the moving party support its motion with affidavits or other materials negating the opponents claim (1) 56(a) and (b) specifically say with or without affidavits (2) Burden on moving party may be discharged by showing that there is an absence of evidence to support the nonmoving partys case c) Nonmoving party has to go beyond the pleadings and designate specific facts showing a genuine issue for trial by her own affidavits

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