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Treatesis on Fed rules of Civ Pro.(secondary Sources) Moores Federal practice (has forms) Wright & Miller Bender (has forms) Trawick is horn book in Florida he hates Fed rules of civ pro LACOE Book basic format for civ pro in Fla Form book CLE Continuing legal education. Law review articles are also good sources A. Courts in Civil Procedure Fla does look like Fed system of Civil Procedure 75% same, but numbered them differently. There is no way to match them to each other. There is no criminal guilt, only civil liability. Every state is different All civil procedure systems are historical. Trial court in a federal system is a district court and there are 3 In Florida there is the Southern, Middle, & Northern The Trial court in Florida is called the circuit court Appeals court in Fed system is the circuit court. Appeal court in Fla is the District Court of Appeals. 3 districts in Florida Northern Southern Middle



Complaint In a court of law. is how you start a lawsuit I got hurt and you did it. Describes parties and what they did and what you are seeking If you want money damages you file a complaint.

Petition In court of equity (Petitioner v. Respondent) Depends upon what the problem is, but its like a complaint for divorce Nowadays the courts are merged, but the terminology is kept from history. 1. 2.

Relief what you are seeking (two types of relief in law) Equitable Relief Legal Relief in Law Law&Equity Determine what is each. Serving the Complaint - Other side gets it by being served by a process server. - The process server is someone from the court or can be a private company, or sheriff or designated agent. In Fla it is sheriff - Who serves the process depends on the court. - In NY anyone can serve over 18, not a party. - Deliver by mail or in person

Summons also gets served. 2. Answer to the Complaint List of Affirmative Defenses Defendant files an answer or can DO NOTHING. Motion to Dismiss Motion for judgement for an act of law Motion for a directed verdict in state court Motion for a judgement for an act of law in Federal court. (but still a directed verdict) Plaintiff, then the court can order a


Judgement by default and the court gives a judgement and order. It then gets served on the person owing the

Demurer - Defendant can also file a Demurrer. Florida - But, there are NO DEMURERS IN FLORIDA - In florida they do a motion to dismiss. Federal System - In the Fed system, they do a motion to dismiss 3. Discovery (Federal Rules 26-37) Interrogatories Depositions Production of documents and things Physical examinations


Pretrial Meeting held with judge to discuss what will be tried (need an outline) Summary Judgement You may have summary judgement Rule 56 of Fed Procedure which is a judgement without trial.

Who can judgement without a trial both parties. Do you get a jury? Equitable proceeding no jury Action at law maybe a jury (it depends) In fed court, it depends on 7th amendment. 5. Trial If you lose 1. Before the jury - Move for a directed verdict before the jury either side can do. 2. After the jury - You ask to set aside the verdict NOV (JNOV) Judgement not withstanding the verdict. Non Obstanto Verdicto . Or Motion for a new trial is another one. 3. Or Appeal


Opinions Plurality Opinion they all agree but for different reasons. It HAS NO PRECEDENTIAL VALUE

Supplemental Proceedings - If you lose the appeal, you get supplemental proceedings. Thats where you take an order and try to enforce it.

Concuring Opinion upholding outcome, but not agreeing to the rationale. Dissenting Opinion Disagreement with outcome and rationale.


1. 2.

Rule 8(a) - General Rules for Pleadings - Claims for Relief a. a claim for relief shall contain a short and plain statement of the claim showing that the pleader is entitled to the relief sought b. Florida requires a short and plain statement of "ultimate fact" Exception - Rule 9(b) - in all claims for fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity Burdens of Pleading, Persuasion, and Proof

a. b. c.

Burden i. ii. iii.

of Proof - determines the standard of persuasiveness the party must satisfy to prove his case beyond a reasonable doubt by a preponderance of the evidence clear and convincing evidence

Burden of Persuasion - tells which party has the burden of proof/proving that a certain event/thing did or did not happen - in most cases the burden is on the plaintiff


Burden of Production - evidentiary standard (going forward with the evidence) i. amount of evidence that is necessary to shift the obligation from one side to another ii. the party has the burden of producing evidence supporting his allegations or rebutting the allegations made against him Presumptions and Burdens of Pleading and Production a. Prima Facie Case - facts put forth by the plaintiff and will be considered to be true unless contradicted by the defendant establishes a presumption b. Once prima facie case established by plaintiff - Burden of Production shifts to defendant to rebut the plaintiff's allegations i. Defendant not required to prove allegations correct - must simply put forth evidence that contradicts or explains away plaintiff's case The General Demurrer and Analogous Devices


Rule 12 - Defenses and Objections - establish the grounds upon which a Motion To Dismiss and other pleadings can be filed objecting to the complaint or other matters


Rule 12(b)(1-5) - other grounds upon which a Motion To Dismiss can be filed such as lack of jurisdiction over (1) subject matter; (2) person or property, (3) lack of venue, (4) insufficiency of process, and (5) insufficiency of service

(a) Pursuant

to Rule 12(g) & (h) 2-5 must be raised in a Motion To Dismiss or in the initial answer if not defense

ii. iii. iv. v. vi. i. ii.

Rule 12(b)(6) - Failure To State A Claim Upon Which Relief Can Be Granted Rule 12(e) - Motion For More Definite Statement - party claiming that complaint is not clear enough and that defendant can't reasonably be expected to form an answer Rule 12(f) - Motion To Strike - used to strike particular parts of the complaint or certain allegations - used when only parts of the complaint are not sufficient to state a claim upon which relief can be granted Rule 12(g) party who makes motion under this Rule 12 may join with it any other motions authorized by this Rule that the party has available


Rule 12(h) if a party does not make a pre-answer motion, he must include any defense he has under rule 12(b) (2)-(5) Rule 8(c) [General Rules for Pleadings - Affirmative Defenses] party shall set forth affirmatively any and all defenses to claims alleged against the defendant Court of Appeals was correct when it stated that Judge must determine whether 's evidence is true and correct Court of Appeals wrong when it said that if the trier of facts does not belief the 's evidence - that the is entitled to a judgment as a matter of law


SC says there always remains whether the proved the allegations in his complaint - not whether the was able to disprove the complaint allegations - Burden of Persuasion always with the THE PROBLEM WITH SPECIFICITY



A who files a long and detailed statement may plead himself out of court - A complaint should not be dismissed for failure to state a claim unless it appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief A District Court CANNOT require a heightened pleading standard in any type of action (other than those statutorily created such as 9c) not in keeping with notice requirement

PLEADINGS - THE COMPLAINT IN THE FEDERAL SYSTEM Complaint The Plaintiff is making a statement about substantive

1. 2. 3. 4.

Notice Pleading in Federal Court (Bidding System)

Short and plain statement of the claim what hes suing for, what went wrong Next showing pleader is entitled to relief (what legal theory is and the fact that the Federal court is the right court to hear it.) A demand for judgement for the relief sought (what are you asking for) You must also put in if it is proper jurisdiction. Rule 7 - A short and plain statement of the claim showing that the pleader is entitled to relief Pleadings are 1. Complaint 2. Answer 3. Answer to a cross claim 4. Third party complaint Under Notice Pleading, even if garbled, it may still state a claim. Code Pleading Used by states Requires more substantial information in complaint Ultimate Fact Pleading Used by Florida Requires more substantial information in complaint. It all means the same thing, when you look at the complaint, you cant get relief from it. Affirmative Defense Defense that says, Yes, I did it , but I had a reason. There are 19 federal rules of Qualified Immunity is an affirmative defense. The plaintiff did not have to plead it if went in as an AFFIRMATIVE DEFENSE. Writ of Mandamus when the plaintiff has the court asks the official to do something. Sua Sponte - When the court occasionally acts on its own with no one asking or a motion, But, most of the time, unless someone asks the court to do something it does nothing.


Motion to Dismiss -under 12b6 is Failure to state a claim upon which relief can be granted . 12b6 Allows dismissal for an improper complaint
Civil Rights Violations - U.S. Code 1983- Found in US code so 42 U.S.C. SS 1983 it allows people to sue for civil rights. The Defendant must be someone who works for the state but NOT for the Federal Government. 1983 does not apply to the Federal Government, But, you can still sue directly under the basis of the constitution Federal Officials Cannot be sued under 1983. Local Officials Can be sued under 1983. Gomez v. Toledo Legal Theory Breach of his due process Government official f ailed to give someone a hearing so issue of qualified immunity exists I n the answer. Qualified immunity an AFFIRMATIVE DEFENSE.

EVIDENTIARY STANDARDS IN THE COMPLAINT Burdens of proof (evidentiary and persuasion) and burdens of production in a case. Evidentiary Standards A. Burden of Proof - usually means the evidentiary standard, there are 3 1. CCE Civil commitment, Fraud 2. Preponderance of Evidence Civil standard 3. Beyond a Reasonable Doubt Criminal law


Burden of Persuasion - This usually means that the obligation of a plaintiff necessary to convince a jury. Always on the Plaintiff. (does not shift). B1. Burden of persuasion of affirmative defenses is on Defendant , but Plaintiff must overcome the affirmative defense of qualified immunity. B2. Burden of Persuasion of Qualified Immunity The Defendant. C. Burden of Production - bounces back and forth between P and D 1. P puts out case 2 2. D puts out defense of not being discriminatory.

3. P says that the defense is a Pretext and is no good. Federal claim of title 7, - Plaintiff only has to show a Notice Pleading. The Defendant has then the Burden of Production of Evidence to rebut Prima Fascia case. The Burden of Proof always stays in one place and has two definitions. 1. Burden of persuasion remains with Plaintiff 2. Level of Burden, Evidentiary standard (BARD, PPE, etc.) Rascial Discrimination Case - The Plaintiff must prove a Prima Fascia Case by Preponderance of Evidence of a case of racial discrimination that he was: 1. Black, 2. Qualified 3. Demoted and discharged and 2.



The position was open and replaced by a white man.

SERVICE OF PROCESS Complaint & Summons Filed together. Fed court - Served by rule in Civ Pro or Fed statute (marshall service probably) when too poor to afford service, used Marshall service. Or anyone over the age of majority. Florida sheriff, but may be served by someone else

Many jurisdictions - Anyone over the age of majority can serve

After complaint - Everything else is served by the attorney to the opposing attorney. Serving the Pleading Only the initial pleading gets served by someone other that the attorneys on both sides. Summons - Summons goes together with a complaint. Document which summons the D to the court. Notice that a lawsuit and talks about a timeframe to answer and tells where the courthouse is. It gets delivered with certain rules of CivPro.


C. THE ANSWER Rule 12(a) 1. The defendant's Answer must respond to the plaintiff's allegations - response to an allegation can be a denial, an admission or neither a. Denial puts the allegation in issue and there by crease an issue of fact as to the allegation b. An admission establishes the allegation as true for the purse of the case - Failure to deny has the same effect as an admission 2. Consequence of a Denial a. Imposes on the plaintiff the burden of proving the allegation denied b. Permits the defendant to introduce evidence that would tent to disprove the allegation 3. Effect of Presumptions a. Certain types of facts are by statute or case law presumed to have occurred; or b. Sometimes the presumption is made conclusive or indisputable so that the fact presumed will be taken as having occurred no matter what evidence might be offered to the contrary; or c. The presumption is disputable so that the fact will be taken as having occurred unless and until evidence is offered suggesting otherwise d. When an allegation is made of a fact presumed to be true, then a denial of that allegation ordinarily does not have the consequence that the plaintiff must undertake to prove. defendant will have the burden of introducing evidence to disprove it. If the presumption is conclusive - the defendant will not even be permitted to do that 4. Denials for Lack of Information and Belief a. The rules permit the defendant to aver that he has no information or belief sufficient to answer and on that basis to deny the allegation 5. Reply a. The Federal Rule 7(a) require a reply to a counterclaim denominated as such or when the court directs the plaintiff to reply to a new matter in an answer

RESPONSE TO THE COMPLAINT Failure to state a claim upon which relief can be granted can dismiss a claim 12b6 Failure to state a claim upon which relief can be granted (12b6) - a complaint should not be dismissed for failure to state a claim unless it appears BARD that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. D says, assuming all the facts are true, there is still no legal basis for your claim anyway Fails to state cause of action and Fails to state a claim.

Motion is not a pleading. Motion to Dismiss - In a motion to dismiss, the Defendant is not challenging the facts, so you dont put in an affidavit because it is all about facts. This must mean the facts here are true, for the purpose of the motion only , and are taken as true for just that. They are taken as favorable for the nonmoving party. If you lose the motion, you can dispute the facts later at trial. If there is a motion to dismiss and no one does anything, than the case gets dismissed, but the court does nothing, because the court will do nothing until someone tells the court Motion for a More Definite Statement 12(e) When the Defendant does not understand the notice. motion too vague or ambiguous to respond Heightened Pleading Standards in 1983 Cases Upheld for 2 reasons: 1. Limitation on accountability 2. Heightened standard is not that at all

Respondeat Superior The Supreme Court has applied that, in the Doctrine of Respondeat Superior You cannot hold the employer liable for the constitutional torts of their employees. If sued in state court, it applies Heightened pleading standard is upheld in civil cases when: 9b Fraud or mistake Dismissal for Failure to prosecute a claim: - Failure to prosecute a claim means that a party does not move ahead with litigation.


D. RULE 15(a) 1. Amendment can be accomplished 3 ways: a. File Motion For Leave To Amend; or b. Agreement Of Parties; or c. Before Responsive Pleading i. Party may amend the complaint once as a matter of right - once ii. Failure to grant leave to amend at least once is almost invariably held an abuse of discretion iii. Generally a pleader is required to avail himself of the opportunity to amends such an opportunity is extended RULE 15(b) 1. Pleadings can be amended to conform to the evidence that has been discovered or produced at trial a. The effect is that a complaint should not be dismissed for failing to state or support a claim and the party is permitted, with leave of the court, to amend the pleading to correct the deficiency RULE 15(c) - RELATION BACK DOCTRINE




Rule 15(c)(1) - Statute of Limitations a. An amendment of a pleading relates back to the date of the original pleading when

ii. b.

The relation back is permitted by the law that provides the statute of limitations applicable to the action OR The claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleadings This very important because of the statute of limitations - if complaint does not relate back and the statute has run, then the complaint will be dismissed

2. 3.

Rule 15(c)(2) - New claim or defense a. Permits the relation back of new claims when the defendants are properly named if the claims asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original complaint


Rule 15(c)(3) - Unnamed or Improperly Named Defendants a. Permit relation back when the amendment changes the party of the naming of the party against whom a claim is asserted when: i. the party will not be prejudiced by maintaining the action against him; AND ii. the party knew or should have known that, but for the mistake of the name, the action would have been brought against him b. Several Courts of Appeals have developed an "identity of interest" test, under which an amended complaint relates back if the true defendant is closely related to the party named in the original complaint c. If the defendant prevents the plaintiff from discovering the identity of the true defendant, or misleads the plaintiff into naming the wrong defendant, the true defendant will be estopped from asserting a statute of limitations defense to an amended complaint RULE 15(d)

1. 2.

Supplemental pleadings are those referring to events which have happened since the date of the pleading sought to be supplemental



Restrictions on Supplemental Pleadings - assertion of a supplemental claim or defense is permitted only with leave of the court, the leave to grant or deny is in the trial judge's sound discretion - as justice requires 3. Necessary Elements a. Events which have happened since the complaint b. Must be a material fact c. Fault based on events that occur later in time AMENDMENT TO RULES 1. 1993 Amendment a. provides that relation back is permitted if notice is provided to the true defendant within the period covered by Rule 4(j) for service of summons and complaint i. Rule 4(j) provides that a summons and complaint must be served within 120 days of the filing of the complaint 2. Effect of more liberal state law of relation back - Rule 15(c)(1) provides that relation back is permitted by the law that provides the statute of limitations applicable to the action i. Committee Notes state that if there is an ability to save a complaint from the running of the statute of limitations then the trial judge should attempt it PLAINTIFF'S DECISION WHETHER TO AMEND

1. 2.

Standing on Pleadings - Where the objection to the pleading is explicitly on substantive grounds, the plaintiff ordinarily refuses to amend Where the objection to the pleading is explicitly on formal grounds, plaintiff ordinarily exercises the leave given to amend and defects corrected Where it is unclear whether the objection to the pleadings is one of substance and one of form - 3 rules apply a. Relief should be sought, if available, in the trial court before resorting to an appeal b. No action should be concluded by reason of shortcomings in the pleadings, even serious ones c. Resort to an appellate court may be had, only from a final judgment and the only way a party can resort to this action and appeal is to refuse to amend the pleadings - to stand on the pleadings and wait for a judgment against them to be entered


CHALLENGING ATTEMPT TO AMEND 1. Delayed Challenges to the Claim or Defense - Rule 12(h) - Waiver or Preservation of Certain Defenses


The sufficiency in point of substantive law of a claim or defense may be challenged at any time prior to entry of final judgment a. by demurrer or motion for judgment on the pleadings after the pleadings are closed; b. by motion to strike, at pretrial conference, by oral demurrer; c. motion to dismiss or motion for judgment on the pleadings at the opening of the trial; d. by motion at trial objecting to the introduction of any evidence, after presentation of the evidence by motion for directed verdict ; or e. on appeal

AMMENDING & SUPPLEMENTING COMPLAINTS Rule for Ammending complaint is Rule 15 Purpose - The basis is to get to the merits of the case by giving the opportunity to make a claim under which relief can be granted. If the court is harsh and does not give amendment to be denied, it could throw out the case. Exception What is the exception when do you not need permission to amend. A Party may amend the partys pleading ONCE as a matter of course as a matter of right before a responsive pleading is served. If you file a complaint and get back a motion to dismiss , (12b6 motion) - You file an:

Amended Complaint , you can change it because a 12b6 is not a pleading back or response. A 12b6 is not a responsive pleading, therefore not an answer and you can amend all you want. Answer is a responsive pleading. After the Answer - Now, if the other side files an answer , and then see that you had a problem. Now that they have filed an answer, and you decide you want to amend your complaint, You cannot do it as a matter of right anymore because there was a Responsive Pleading filed. You must: Amending with permission : A. Ask Leave of the Court - In order to get permission of the court, you must file a Motion to Amend the Complaint Test for granting leave to amend : - The test for the courts granting of the motion is in Rule 15 is; Leave shall be freely given when justice so requires. Courts tend to give leave to amend. B. Get Written Consent of the other party . - Mostly lawyers will give permission to keep professional and as a strategy. If the error has no adverse affect on client. Say yes, because you may need to ask for something yourself! Sense of Civility. Test for other side giving permission to amend is It depends on whether there is a significant legal reason for giving written consent. Amended v. Supplemental Complaint Ammended pleading - refers to facts that took place before original pleading is filed. Supplemental pleading refers to facts that are relevant after the original pleading was filed. New Cause of action - You can put a new cause of action in a supplemental complaint if there is something that arises. This would be like harassment of a Plaintiff after charges are filed. Statute of Limitations - If you file the original complaint after the Statute of Limitations has run, you would be screwed because, under 12b6, No relief can be granted. Relation Back Doctrine (F.R.15 c) The ability to amend complaints after the Statute of Limitations after statute has run. There is a rule that gets you back. It allows you to amend a complaint to add a cause of action as long as it arises out of the same transaction You can change and it will relate back and therefore be timely. 2 parts: 1. You can change the complaint when the Cause of Action rises out of the same circumstances. You must be able to say that it arises out of the same conduct. 2. You can add another cause of action. 3. Can you fix it if the name is wrong. It must be a mistake Test Point - You know that there was an answer filed because the P had to get a motion to amend. Non-responsive Pleading. -Defendant does nothing no answer



a. b. c. d. e. f.

Safe Harbor - a litigant can escape sanctions by withdrawing an offending representation within 21 days of having service of a motion for sanctions under Rule 11 Continuing Duty - a litigant has a continuing duty to ensure that representations to the court meet the standards of the rule i. If a factual allegation in the complaint is made after reasonable investigation, but later learns to be without foundation, a litigant may to continue to present it to the court by later advocating it Ability to seek supporting evidence later - a litigant may allege facts for which there is little or no support at the time of the allegation, if the allegation is specifically so identified and if it is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery Possibly less severe sanctions - sanctions shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by other similarly situated which include nonmonetary sanctions or an order to pay court costs Firms liable for sanctions - law firms, as well as individual attorneys and unrepresented parties, are liable for sanctions Inapplicable to discovery - the amended rule does not apply to discover


i. Discovery related duties and sanctions are covered exclusively by Rules 26 - 37 Continuing doctrine under the Rule - objective standard is to be used rather than on a finding of good or bad faith

Signing of Pleadings Rule 11(guidance) - Deals with lawyers ethics and obligations to the court. Slap the hand device/control device to keep people in line. For most papers filed in court, R11 applies. Test is what a Reasonable Lawyer would do. Applies to lawyers, parties unrepresented by counsel and parties represented by counsel. The law firm has an obligation to the court as well as to his client . Discovery Rule 11 does not apply to Discovery. Rule 37 applies instead.

Safe Harbor - Rule 11 has a safe harbor Ability to with draw the offending document is new because plaintiffs in civil rights cases often times were poor Application - Must be nonfrivilous argument as warranted by existing law . You will not be stuck if you have a legal argument if you try to change the law as long as you have a nonfrivilous case and a Good Faith. Evidentiary Support - Additionally, you must have Evidentiary Support of facts or Reasonable Opportunity for further investigation or discovery . This is what Lawyers use to run into court to file something. This is doing the best you can and then having the opportunity to fix the problem.


A. DAMAGES 1. 3 types of damages within Court setting


Declaratory - have court declare rights of parties i. Granting a plaintiff a judicial determination of the legal relationship between himself and another ii. Available if the applicant for a declaration can show that he confronts real risk if he proceeds with the court of conduct which he seeks to follow iii. Courts will still refrain if the issues are not ripe for adjudication SPECIFIC RELIEF: INJUNCTIONS AND DECLARATORY RELIEF

a. b. c.

Legal Damages - monetary award Equitable Damages (Specific Relief) - request court to make/prevent party from doing something


INJUNCTIONS - 3 Types (Rule 65) (See Below V.B)


Temporary Restraining Order - issued for 10 days and then must be renewed - short time because can be obtained without notice to defendant OTHER TYPES OF EQUITABLE REMEDIES

a. b. c.

Preliminary Injunction - issued while action is proceeding in hopes of receiving permanent injunction Permanent Injunction - court will instruct party they must permanently obey

1. 2. 3. 4.

Constructive Trust - trust is imposed on property which is in the hands of the defendant but which in justice belongs or ought to belong to plaintiff - constructive trustee then ordered to transfer property to plaintiff Rescission or Cancellation of Contract - when because of mistake, fraud or the other ground, one party is privileged to withdraw form a contract which he has made, he may obtain adjudication authorization to rescind contract Quiet Title - it could be used to determine rights in easements and rights based on equitable remedy Suits to Remove Clouds on Title - form of relief granted to a plaintiff whose possession was as yet undisturbed but who feared that the existence of a document purporting to vest in another title to or interest I the land would lead to later disturbance of plaintiff's possession


D. A judicial order, obtained at the initial state of litigation, designed to stabilize the situation pending the final disposition of the case or to provide security to plaintiff so that if he succeeds in obtaining judgment he will be able to enforce it effectively - Traditional provisional remedies include the seizure of property/attachment, temporary injunction and other analogous remedies ATTACHMENT



Connecticut v. Doehr a. Court considers 3 factors in determining what process is due when the government initiates a deprivation of property - attachment i. What private interest will be affected by the prejudgment measure? ii. What are the risks of an erroneous determination under the procedures in question, and what is the probable value of additional safeguards? iii. What are the interests of the party seeking attachment, giving due regard also to the government's interests in providing the procedure or forgoing added protections? b. The CT statute permits substantial risk of erroneous deprivation - all it requires is that a plaintiff belief defendant is liable no allegation that a defendant is about to dispose of property alleged TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS


INJUNCTIONS - 3 Types (Rule 65)


Preliminary Injunction - issued while action is proceeding in hopes of receiving permanent injunction




Test for Preliminary Injunction (plus non-discretionary elements) No adequate remedy at law Danger of irreparable harm Likelihood of success on merits Balancing hardships of both parties Policy considerations Public Interest Non-Discretionary Elements (a) Previous case law (b) Factual determination of evidence (c) Draw legal conclusions in accord with principal application of the law Standard of Review by Higher Court when Order Granted/Not Granted (a) Abuse of Discretion by either Apply correct or incorrect preliminary injunction standard regarding substantive law Clearly erroneous finding of fact (a) (b) (c) (d) (e)


Permanent Injunction - court will instruct party they must permanently obey i. Mandatory - demand action ii. Prohibitory - prevent action iii. Elements for Permanent Injunction (different from Preliminary Injunction) (a) Remedy at law inadequate (b) Irreparable harm (c) Balancing hardships between both parties (d) Clean hands (look at both parties) (e) Public interest consideration (f) (Judicial Discretion - not element, but used in determination) Temporary Restraining Order - issued for 10 days and then must be renewed - short time because can be obtained without notice to defendant



(at law remedy) F. Nature and Effect 1. In theory statutes of limitation merely suspend the remedy but does not extinguish the substantive right, although barring the action has the same practical effect in most instances as barring the remedy 2. The plea of the statute of limitation is a meritorious defense, in itself serving a public interest G. Applicability 1. The governing statute is usually that of the forum where the remedy is sought and not the statute of the place where the action arose 2. The statue of the forum may bar a remedy even though the action is not barred in the jurisdiction where it arose - this has lead to forum shopping 3. 2 exceptions a. Where a statute creates a right unknown at common law and establishes its own time period for suit, the right is a conditional one and its time condition will be enforced wherever the action is commenced b. Many jurisdictions have borrowing statutes. These statutes typically provide that an action arising in another jurisdiction or affecting a nonresident, and barred in that jurisdiction, is also barred in the forum state 4. Fall-Back Statutes


Statute of limitations for federal statutory causes of action created after 1990 that do not contain their own explicit limitation period will be 4 years Federal statutes that contain their own limitation periods are governed by those periods


Federal statutes enacted before 1990 that have no explicit limitation periods of their own typically borrow from the closest analogous federal or state limitation period Computation of Time Periods 1. The time is computed from the day on which the plaintiff could have commenced the suit - the day the action accrued - and the suit must be commenced on or before the last day of the time period 2. Accrual and commencement are not self-defining and jurisdiction differ on their meaning and effect - Generally accrual means the time when the plaintiff could have first maintained a suit - the date the action was legally complete and the right to use matured 3. Accrual can also mean that the time period does not start running until the injured person discovered or should have discovered the existence of his cause of action - frequently coupled with the requirement that the plaintiff use due diligence in ascertaining her right 4. The statute is tolled when the action is commenced - jurisdiction differ on this also - some states say when filed and others say when service made 5. Federal Rules of Civil Procedure define commencement as when the complaint is filed in the Clerk's office - tolls the statute in an action based on federal law a. Rule 3 not used to toll a statute of limitations in diversity case only used to establish dates for service, answer, summary judgment Avoidance of Statute - application of the statue of limitations is not a matter of discretion and courts say they will not balance the equities or create or expand except so as to avoid hardship or prevent unjust enrichment 1. Saving Statutes a. In the absence of statute, an action that is dismissed or fails after the statute of limitations has run cannot be recommenced, even if the original suit was brought within the time period b. Because of the harshness of this result when the initial failure or dismissal was to on the merits, most jurisdictions have savings statutes that permit a new suit within a specified time period




Where dismissal is covered by a savings statute, the case may be restated within the savings period or the general statute of limitations if it has not yet run - the savings statutes extend but do not shorten the statutory period Pleading and Procedure 1. A plea of limitation, being in the nature of confession and avoidance, is generally deemed an affirmative defense to be pleaded and proved by the party asserting it 2. Failure to plead the statute waives the defense 3. When the statue is raised as an affirmative defense, the plaintiff must then reply and raise whether exceptions exist




A general denial is generally not sufficient to raise the defense Laches 1. Laches is to suit in equity what the statute of limitations is to suits a law 2. The theoretical basis for laches is injustice, not just the passage of time 3. For laches to bar an equitable remedy, plaintiff's inaction must have produced injury, disadvantage or prejudice to the defendant Notice of Claim 1. Statutory causes of action, particularly claims against governmental bodies, often call for written notice to the defendant concerning the claim and its basis within a short period of time after such claims arises 2. Such notice is designated to enable the defendant to investigate the claim properly, and failure to provide the requisite notice bars the suit in the same manner as does the statute of limitations 3. The Supreme Court has held that such notice and allowance of time is a condition precedent to suit and cannot be remedied by notifying the agency after suit is filed

REMEDIES Law v. Equity Actions at law you have a right to a jury, can be tried by judge or jury. If the damages are proven in action at law, there is no discretion, you just award it Actions in Equity its different the court has discretion because we deal with what is reasonable and fair. It is a balance. A. Damages Monetary Relief. Special Damages General Punitive B. Equitable Relief Injunctions (TROs within) Specific Performance Declarations C. Provisional or Temprorary Remedies Claim for Relief - You put remedies under relief sought otherwise known as a claim for relief and this is put into claim.

Procedural Due Process Due process contains the proposition that you are entitled to notice and must be fairly articulated so that you have the ability to defend yourself. Substantive Due Process - need to have a remedy that in terms of its weight is there. The remedy must relate to the action of the Defendant. (Can the state impose it at all). Test 1. Degree of reprehensibility 2. Disparity between harm or potential harm suffered and the award (comparison of harm) 3. Difference between this remedy and the civil penalties authorized or imposed in comparable cases. A Temporary Restraining Order (TRO) - is a type of injunction and is equitable relief Florida Uses Inunctions. no such thing as a temporary restraining order In Fla only Temp injunction and Permanent Injunction Florida combines TRO and permanent Inj into temporary injunction.FL Federal System uses Temporary Restraining Orders. Preliminary Injunction Permanent Injunctions Collateral Source Rule . Court upholds collateral sources rule because the person who commits a tort gets no punishment and must pay for what they did. Subrogate gives right to insurance to go after
Helfend v. South California Rapid Transit. BMW of N. America v. Gore Business Guides Inc. v. Chromatic Communications Enterprises, Inc.


3 types of equitable remedies 1. Temporary Restraining Orders - You need to get order from court or they will do something before you get the order (like they will sell something off and if you told them you would go to court to stop them, they will do it first and sell it quick) TRO test - To get test for TRO, which is not given in FRCP, you must got to CASE LAW because there is no statute. Must give notice to other side unless Time Frame - TROs last in court for 10 days in federal court and is extendable 2. Preliminary Injunctions 3. Permanent Injunctions Injunctions Rule 65 - Injunctions often occur at beginning of case mostly because something needs to happen 2 kinds of injunctions 1. Prohibitory Injunctions Stops something from happening 2. Mandatory Injunctions To make some one do something Interlocutary means temporary

General Rule Court has Discretion Basis for injunctive relief (four part test) Must be a hearing on the merits. 1. Irreparable Injury 2. Inadequacy of legal Remedies Inadequate remedy at law If you have both of these, you dont necessarily have an injunction. 3. In the discretion of the court. 4. Public Policy - But, Even though the damage is irreparable, there may be a Public Policy consideration.
Weinberger v. Romero Barcelo

PROVISIONAL REMEDIES Provisional Remedy - Judicial order, obtained at the initial stage of litigation, designed to stabilize the situation pending the final disposition of the case. Provides security to a plaintiff. Protect something from disappearing or going away. 3 types of Provisional Remedies 1. Arrest 2. Attachment 3. Lis Pendens Notice v. Motion for Temporary Restraining Order - Procedure Lawyer serves Summons & Complaint and if you want a TRO, you must file an affidavit and the judge does nothing. To get a judge to act, you must file a motion and then they rule on it and then they do enter a Judgement or a an order. The affidavit will not get you the order and is only part of what is necessary you need the As a matter of practice judges Make, Enter, and Draft Orders and to end cases, they order Judgements . Motion - There only way to get the judge to do something is to make one. There aint no other way. Application and request for an order.(This is a document) except in New :York which it is called a notice of motion Order When a court acts on your request Opinion the rationale for the order

Immediate Relief - If you want immediate relief, you must get it from the court through an order by submitting a motion. Immediate relief is ask a motion for an emergency or Temporary Restraining Order . Conneticut v. Doehr PRELIMINARY INJUNCTION Preliminary Injunction (test) 1. No adequate remedy at law 2. A danger of irreparable harm while case is pending - when you weigh the irreparable harm during course of application for a preliminary injunction, there is a time frame concern because more damage can be done. This is done before the trial. Time is always the concern and need for preliminary injunction. 3. Likelihood of success on the merits. That you have thefacts and the law is with you. 4. Weighing of the harm as between the plaintiff and the defendant (this is at the stage for all three, TRO, Prelim, Perm. 5. Public Policy considerations harm to public interests Standard of issuance is Discretion . Preliminary Injunction is a discretionary decision. Appeal of an Injunction by Defendant . Must show standard of abuse of discretion in order to be successful. Abuse of Discretion is the standard for looking at injunctions. 1. Applies incorrect substantive law or incorrect preliminary injunction standard 2. That he rested his decision to grant or deny on a clearly erroneous finding of fact 3. Applied an acceptable prelim injunction standard in a manner that results in abuse of discretion. Appellate Process and Injunctions. The power to issue injunctions , The court has discretion and it is a crucial element. There is no right to an injunction . there is only a balancing and the decision making is discretionary. Clearly Erroneous Standard(general rule) - finding has to be clearly erroneous. Appellate courts have nothing to do with facts! - Only deal with facts if clearly erroneous . This is because the trial court is in a better position to know the facts. The appellate court is giving some degree of deference to the trial court. Matter of Law in review - In standard for review for a matter at law is no deference to trial court. So standard for review for matters of law is: De Novo Review which means they look at it anew or afresh.


Appellate court can decide it De Novo and there may be no deference to trial court. Lawson Products v. Avnet DUE PROCESS & PROCEDURAL REMEDIES Procedural Due Process to obtain a Provisional Remedy (TRO) 3 part test (Mathews v. Eldridge was case that tested it.) 1. Government must be involved 2. Protected Interest at stake - You need to know if it is a life, liberty, or property involved. 3. If so, then adverse party is entitled to notice and a hearing. 3 Types of Due process Government must be involved because Due process clause talks about no depriviation of life, liberty, or property by any laws the gov established (this is 14 th amendment) Its issue of any analysis is if the Government is involved If the gov involved, you must ask: What is the government effecting? 1. Life 2. Liberty 3. Property DAMAGES DEFENSE - STATUTE OF LIMITATIONS If Statute of Limitations runs, which is the time you can bring a claim. If it runs out, It does not mean you dont have a remedy, it means it is just too late to claim it. There is no singular rule to running of Statute of Limitations 1. When Plaintiff Knew or should have known of injury 2. When the Plaintiff Knew or should have known of legal relief. Foreclosure of Remedy SOL has run out. Most of the time SOL is viewed as procedural, which means the forum states sol applies. Borrowing statute used so that someone does not get benefit United States v. Kubrick

the claimant has a notice of Due Diligence, therefore it is when a Reasonable person knew or should have known. Test is when a reasonable person would or should have known. Notice of Claim statutory causes of action, especially against a government body, call for written notice to defendant concerning the claim within a short period of time. This is in order to enable the Defendant to investigate the claim promptly. Failure to file notice of claim bars suit just as statute of limitations bars a suit. Notice of Claim and Regulatory Agencies Common type of time limitation requires a citizen to notify a regulatory agency a set number of days before commencing suit against an alleged violator.

VI. THE PROPER COURT (JURISDICTION) Jurisdiction - the power of the court to hear and determine the particular case - binding adjudication over case
Judgment void if court lacks subject matter jurisdiction - this can never be waived by a party 3 requirements must be satisfied before a suit can be brought in a particular court Territorial Jurisdiction - power over person and property Subject Matter Jurisdiction Venue/Forum Non Conveniens SECTION 1 - TERRITORIAL JURISDICTION


INTRODUCTION geographical limit on the place where Plaintiff may choose to sue Defendant based on 14th Amendment and due process clause


In Personam - actions bind a defendant personally, typically providing damages or injunctive relief - can be gained as follows: a. Resident of forum jurisdiction (i.e., domicile) b. Minimum contacts with forum - personally avail themselves of jurisdiction c. Waive right to object d. Present in jurisdiction I.e., service of process (unless lure by fraudulent means) e. Constructive consent - appointing government as agent by presence in forum such as involvement in car accident in forum (page 201) i. Can be waived if not objected to prior to filing first pleading/motion - can be waived even if defective service or no minimum contacts In Rem - action that binds property in the sense of adjudicating the rights of all persons who claim interest in the property Quasi In Rem - settles property rights only of specific persons, not against the world as with in rem - 2 types a. Type one - resolves a dispute about the property itself such as a suit to quiet title which would not extinguish claims of persons outside the jurisdiction of the court or mortgage foreclosure b. Type two - action establishes rights to property, but the underlying dispute is unrelated to the property such as a tort action against an absent defendant through an attachment action and the absent defendant is put to the choice either of coming into the state to litigate the claim at issue or of staying outside the state and losing the litigation through a default judgment

2. 3.



General Jurisdiction - exists when defendant's contacts with the forum state are systematic and continuos sufficiently substantial that one may litigate any dispute in the courts of the forum, whether or not that dispute grows out of those contacts a. Minimum contacts test higher b. Cause of Action not associated with minimum contacts defendants activities in the state are so substantial and continuos that she would expect to be subject to suit there on any claim and would suffer no inconvenience from defending there

18 th

Specific Jurisdiction - exists when the contacts with the forum are related to the dispute sought to be adjudicated - when this is involved the court must consider the relation of the contacts to the cause of action against the defendant a. Defendant intentionally and purposefully placed himself in jurisdiction and cause event that lead to cause of action b. Contact significant enough for action against him to be fair and reasonable CENTURY THEORY



Pennoyer v. Neff 1. Issue: Is constructive notice (by publication) upon a nonresident adequate as a basis for in personam jurisdiction in a state court? NO

Due Process Clause of the 14th Amendment requires that a defendant be given a just chance to defend himself in an action filed against him personally (in personam). This requirement is satisfied if defendant is "properly and seasonably notified" of the action pending against him. b. To gain in personam jurisdiction over defendant, and the concurrent power to adjudicate the full dispute between the parties and award full judgment, the court must see that defendant is personally served with process while actually present in the state c. Collateral Action - challenge power of Court's action in previous case 20 TH CENTURY SYNTHESIS C. MINIMUM CONTACTS



Minimum Contacts Test (Established by International Shoe Co. v. Washington) a. Systematic and continuous contact throughout the years b. Purposeful act where defendant receive benefits and protection of the law of forum state c. Obligation which is sued upon arose of out the defendant's activities - quality and nature of the cause of action d. 'Fair play and substantial justice " e. Foreseeability (cannot be the only element found i.e., product in stream of commerce)
Additional Elements: Even if minimum contacts established - still must consider the following: a. Burden on the defendant of adjudicating action in forum state b. Plaintiff's interest in obtaining convenient and effective relief c. Efficient resolution of controversy from court perspective d. Effect on several states A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist minimum contacts between the defendant and the forum state Rationale - it protects the defendant against the burdens of litigating in a distant or inconvenient forum and acts to ensure that the states through their court, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system Fair and reasonable - ultimate test for constitutionality of Due Process


3. 4. 5.


World-Wide Volkswagen v. Woodson - Woodson bought car in NY - accident in OK - sued in OK a. Issue: is forseeability that a product could cause an injury in a particular state a sufficient contact to justify that state's exercise of jurisdiction over the product's manufacturer? NO

i. 7.

There are no contacts between s and forum state - although foreseeable that cause injury in any state foreseeability test would be impractical - never been acceptable alone that foreseeability would be sufficient for minimum contact test


Kulko v. Superior Court - Husband and wife divorce - wife moves to CA with kids - wife's moves to have settlement modified in CA a. Issue: does a parent become subject to the jurisdiction of another state solely because he permits his children to live in that state? NO i. To the extent that CA provides services that help provide for the well-being of the husband's children, it seem reasonable to conclude as did the CA Supreme Court, that the husband receives benefits and protections from CA. However, Kulko stands of the proposition that the purposeful act requirements mean that the defendant must receive direct benefits and protections from the forum state; vicarious benefits and protections are not enough REFORMATION OF MINIMUM CONTACTS


Burger King Corp. v. Rudzeweicz a. Issue: do business negotiations and a course of dealing constitution sufficient contact with forum state to permit exercise of personal jurisdiction? YES b. Even if minimum contacts established - still must consider the following: i. Burden on the defendant of adjudicating action in forum state ii. Plaintiff's interest in obtaining convenient and effective relief iii. Efficient resolution of controversy from court perspective iv. Effect on several states c. Can sue in both court of law and equity at the same time, in order to same money. d. The source of subject matter jurisdiction is diversity. e. There was a choice of law provision. Even if they went to Michigan they would still have to use Florida law. f. Why Federal Court? Because lawsuit was between a citizen and a corporation and each were from different states, in order to have a fair outcome. g. Under the federal rules of civil procedures state that you dont have to make a special appearance you can move to dismiss for lack of personal jurisdiction and does the same as a personal appearance. (you can do this by a motion to dismiss).


h. i. j.

Do not mix up subject matter jurisdiction and personal jurisdiction, they are two separate propositions. You need to have both if you are a lawyer and trying to sue. Long arm statute (state legislature writes this): Some states such as Cali say that there long arm statute reaches as far as due process is allowed, other states have lists FL. In FL in order for theyre to be minimum contacts you have to fit in one of the long arm statute. Laundry list long arm statute:


Asahi Metal Industry Co. v. Superior Court a. Issue: can court exercise personal jurisdiction over defendant who supplies parts to vendor and has very limited contract with US? NO i. No minimum contacts because Asahi did not intentionally or purposefully market its products in the US - exercise of personal jurisdiction unreasonable ii. In this case - can be said that passes minimum contacts test - but not the reasonable test - Note - numerous opinions for this case - Court could not agree iii. Look To: Principal place of business or where they are incorporated. This makes them present or domicile. iv. Plurality: Judges agree as to the result but never as to why. Stream of commerce - that is, by delivering the components to Cheng Shin in Taiwan - coupled with Asahi's awareness that some of the components would eventually find their way into California, sufficient to form the basis for state court jurisdiction under the Due Process Clause. Bensusan Restaurant Corp. v. King- (long arm statutes in fed. Court) a. Federal court dealing with long-arm state, federal court has subject matter jurisdiction. b. Subject matter jurisdiction has nothing to do with long arm statutes at all. Once its is determined the court has subject matter jurisdiction, then it looks to long-arm statute to see if it has personal jurisdiction which is one form of territorial jurisdiction.




NOTICE 1. Must be reasonably calculated, under all circumstances, to approve interested parties of the pendence of the action and avail them an opportunity to present objection


Mullane v. Central Hanover Bank & Trust a. Issue: is notice by publication a violation of due process when the out of state parties so served are know and have know address? YES b. An elementary and fundamental requirement of due process in any proceeding is notice must be "reasonably calculated, under all circumstances, to apprise interest parties of the pendancy of the of the action and avail them an opportunity to present their objections"
Personal Service - personally delivering copy of summons and complaint to individual defendant Dwelling house or usual place of abode - process server may leave summons and complaint at the usual place of abode with person of suitable age Mail - plaintiff may mail 2 copies of summons and compliant, together with waiver and request defendant sign and return waiver a. Defendant has duty to minimize cost of service and if doesn't sign - then plaintiff can charge defendant with all additional costs of service b. Returning waiver has the same effect as actual service of process and defendant given 60 days from return of waiver to file Answer c. Service not complete until waiver has been signed and returned to plaintiff Agent appointed to accept process - service may be made on someone appointed to accept service - will constitute personal service on the party Compliance with state law - service of process is sufficient if it complies with the law of the state in which the District Court is sitting or the state in which the service is effected Corporations and unincorporated associations - can be made by obtaining waiver, service according to state law or by delivering a copy of summons and compliant on officer, manager or other authorized agent of corporation Government defendants - special provisions must be satisfied as listed in Rule 4(I) and (j) In rem and quasi in rem jurisdictions a. Actions relating to real property - personal service must be attempted, but allows for publication b. Other actions - where personal jurisdiction cannot be obtained, the federal court may assert quasi in rem jurisdiction based on seizure of defendant's assets within the jurisdiction in accordance with the law of the state where the District Court is located Geographical scope - geographical scope of service of process in District Court is the same as that in the state court except 4(k) federal cou7rt may exercise personal jurisdiction only to extent it could be exercised by courts of the state in which federal court sits



1. 2. 3.

4. 5. 6. 7.


a. b. c.

Foreign defendants - must have sufficient contacts with the US as a whole for suits arising in federal court Federal Statutes - some federal statutes provide for nation wide jurisdiction in suits brought under them such as anti-trust and securities suits


Bulge jurisdiction - third party defendant impleaded into an existing federal suit under Rule 14 and others under Rule 19, may be served and brought within jurisdiction of the District Court, provided that the party can be served within 100 miles of the courthouse in which the action is commenced - designed to permit efficient adjudication of cases brought in federal courts LONG ARM STATUTES 1. GENERALLY a. Definition - jurisdictional statutes that reach across state lines b. The statute asserts the state's authority to reach its long arm across the state boundary into another state or country and to subject a person or corporation to its jurisdiction



c. CA - to the full extent permitted by Due Process Clause d. CPLR- New Yorks Rules of Civil Procedure e. Most States - limit jurisdiction by statute 2. FEDERAL LONG ARM STATUTES a. Federal courts usually asserts in personam jurisdiction to the same extent as the state court in which the federal court is sitting b. This is true in cases where the claim arises under federal law and where subject matter jurisdiction is founded on diversity of citizenship c. Some federal statutes explicitly provide for in personam jurisdiction beyond that allowed by state (i.e. federal statute actually contains a long arm statute) PRESENCE 1. PROPERTY


Shaffner v. Heitner i. Issue: Does minimum contacts standard apply to the exercise of in rem jurisdiction by a state? YES (a) However, no jurisdiction here because stock has nothing to do with cause of action or relate to transaction between parties - Otherwise, yes minimum contacts PERSON


Burnham v. Superior Court of CA i. Issue: may a state exercise in personam jurisdiction over nonresident who was personally served with process while temporarily in the state, in a suit unrelated to his activities with the state? YES (a) However, fraudulently enticing defendant into state will not satisfy the jurisdictional requirements CONSENT TO JURISDICTION - FORUM SELECTION CLAUSES



Carnival Cruise Lines, Inc. v. Shutts a. Issue: is a forum selection clause contained on a ticket for passage on a ship enforceable? YES i. Forum selection clause must be fair and reasonable - Unequal bargaining power not sufficient determination alone that clause not to be enforced OBJECTING TO JURISDICTION


Insurance Corp. of Ireland v. CDB a. Issue: may District Court proceed on the basis that personal jurisdiction can be established as a sanction over a party who fails to comply with discovery orders directed at demonstrating jurisdictional facts? YES b. Rule 37 - sanctions for failure to comply with discovery orders


Court said Trial Court could use this during pre-trial stage and that Court did have jurisdiction over the for this aspect of the proceedings RELATION OF TERRITORIAL JURISDICTION TO CHOICE OF LAW 1. Generally - In Federal and State Court the question arises as to which state law to apply to the issues in controversy when more than one state's laws can be applied


Phillips Petroleum Co. v. Shutts a. Issue: May the forum state apply its own law to every claim in a class action even though the forum has not significant contacts to such claims? NO i. Test for choice of law: significant contacts - state must have significant contact with the actual property at issue in controversy - this way not arbitrary or unfair ii. Apply forum law unless compelling reason why shouldn't because forum law will be arbitrary and unfair iii. Each state has different rules which govern test for choice of law - following law of another state called "comity" SECTION 2 - SUBJECT MATTER JURISDICTION Subject matter jurisdiction concerns the authority of a court to adjudicate a particular type of suit Want of subject matter jurisdiction cannot be cured by waiver or consent of the parties - even if both parties agree to have particular controversy heard in a particular court FEDERAL COURTS Courts of limited jurisdiction based on Article III of the Constitution Jurisdiction over the following types of cases Federal Question jurisdiction under 1331 - original jurisdiction Federal Statute gives original jurisdiction to federal court Diversity cases under 1332 - in this case state and federal court have concurrent jurisdiction because case can be heard in either court Admiralty Jurisdiction under 1333 Federal Interpleader under 1335 FEDERAL QUESTION JURISDICTION - 28 USC 1331 A. Statute construed very narrowly and complaint must be "well pleaded" - plaintiff cannot file in federal court assuming that defendant will plead an Affirmative Defense a federal statute B. To satisfy the federal law question as the basis for the cause of action, the following must be shown: 1. Federal law is likely to form an important part of the case 2. Obvious presence of federal law as the basis for the cause of action 3. Parties know as soon as the complaint if filed that the federal jurisdiction is present DIVERSITY JURISDICTION - 28 USC 1332



Purpose - protect out of state defendants from local prejudice Subject matter defined by who the parties to the suit are rather than the subject matter of the underlying litigation (with some exceptions such as particular causes of action and dollar amount) Citizenship 1. Natural Persons a. person is a citizen of a state in which he is domiciled




b. domicile is distinct from residence - to be domiciled must reside in a particular state with the intent to remain there indefinitely Artificial Persons a. A corporation is treated as a citizen of both its state of incorporation and its principal place of business b. An unincorporated association is a citizen of all the states in which the members of the association are citizens


Complete Diversity 1. All plaintiffs must be of a different citizenship from all the defendants 2. Complete diversity is a statutory requirement - not a constitutional on 3. A diverse defendant seeking to dismiss a non-diverse defendant in order to permit removal must show that plaintiff joined nondiverse defendant fraudulently as means to defeat removal Amount In Controversy plaintiffs amount in controversy presumed to have been made in good fait


1. 2. 3. 4. H. I.

Legal Certainty Test - defendant opposing jurisdiction must prove with legal certainty that plaintiff cannot recover damages in excess of $75,000.01 Injunctions and Plaintiff's or Defendant's Viewpoint - can be difficult to calculate because value to each party will be different Aggregation of Claims - the general rule is that a plaintiff may aggregate all claims brought in a single complaint, even if the causes of action are unrelated to one another to satisfy the jurisdictional amount Counterclaims - amounts sought in permissive counterclaims are not considered part of the amount is controversy a. However, when the defendant seeks amount over $75,000 in a compulsory counterclaim in state court and then removes the case to federal court based on that amount in controversy, the cases are split

Improper or Collusive Assignments or Joinder to Create Diversity - pursuant to 1359, assignment or joinder of parties may not be done improperly or collusively in order to invoke jurisdiction Probate and Domestic Relations - diversity jurisdiction does not include administration decedent's estate or domestic relations suits seeking divorce, alimony or child custody decrees DEFINITION jurisdiction over claims brought between existing parties or between existing and new parties for which there is NO federal subject matter jurisdiction if those claims are considered independently 1367 (a) if plaintiff brings a proper federal ( 1331) claim so that the court has original jurisdiction, the court may hear all claims that are a party of the case or controversy same common nucleus of operative fact except as provided in (b) or (c) 1. In any civil action of which the district courts shall have original jurisdiction, the court shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the Constitution 2. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (independent jurisdiction not a problem here because courts jurisdiction of original matter based on federal law 1367 (b) - If jurisdiction is based solely on 1332 diversity jurisdiction then all requirements of diversity must still be met when adding all supplemental claims 1. No supplemental jurisdiction under (a) over claims by plaintiffs against persons made parties under following rules where exercising supplemental jurisdiction would be inconsistent with the jurisdictional requirements of 1332 Rule 14 - 3rd Party b. Rule 19 - Joinder of Persons Necessary for Adjudication) c. Rule 20 - Permissive Joinder of Persons d. Rule 24 - Intervention 1367 (c) Supplemental jurisdiction discretion of district court and based on: 1. Fairness 2. Whether state law claim predominates 3. Whether would require court to decide sensitive or novel issues of state law 4. Whether hearing claims together might confuse the jury 5. Whether federal issues would be resolved early in case leaving only state law claim Supplemental Jurisdiction - 1990 statutory merger of 2 judge made doctrines:








Pendant Jurisdiction additional claim brought by the same plaintiff against the same defendant - Court has jurisdiction over case because plaintiffs first claim is based on federal question jurisdiction and additional state law claim a. TEST: i. Common nucleus of fact and would ordinarily be expected to try them all in one judicial proceedings; AND ii. Federal claim must have sufficient substance to confer subject matter jurisdiction on Federal Court (a) Pendent jurisdiction may be exercised only when the relationship between he federal and nonfederal claims is such that it can be said that entire lawsuit before the court comprises but one constitutional case. (b) Tested at the beginning of pleading complaint must be well pled to survive Ancillary Jurisdiction additional claims brought by existing parties other than the plaintiff (usually the defendant) or over claims brought by or against additional parties


REMOVAL (28 USC 1441)

1441(a) any action brought in the state court in which the district court shall have jurisdiction may be removed by the defendant to the district court where such action is pending diversity requirements must be met 1. In a multi-defendant case, all defendants must agree to remove or the case will stay in state court


EXCEPTION: Action may not be removed by defendant to district court if defendant is a resident of the forum state and jurisdiction of federal court based solely on diversity 1441(b) if federal question jurisdiction then action may be removed by defendant without regard to citizenship of parties



1441 (c) if action has federal question and state law claim then removal can be made by defendant but discretionary matter for district court R. 1441 (e) amendment which allows the federal court to acquire jurisdiction on removal even if the state court where the case was brought lacked subject matter jurisdiction over the claim initially 1. Example: such as bringing a claim for breach of contract and patent infringement and then removing state court lacked subject matter jurisdiction over patent cause of action because federal court has exclusive jurisdiction but amendment allows federal court to obtain jurisdiction over on removal no longer has to dismiss and then require to amend complaint once in federal court S. Generally Federal Question Removal: 1. Plaintiff is the master of his complaint (also consider the well plead complaint rule) a. Plaintiff can forgo a federal-law cause of action to prevent removal from state court to federal court by confining complaint to state-law cause of action plaintiff free to ignore this cause of action to prevent removal b. In diversity case if case removed to federal court because all elements of diversity are met plaintiff may not reduce claim amount simply to have remanded back to state court 2. Federal defenses may not be used as a basis for removal a. Removal based on plaintiffs complaint not on an anticipated defense/counterclaim of the defendant b. Statute has been construed to mean that removal is property only if the plaintiff could have filed the suit in the federal court in the first place T. Artful Pleading and preemption removal 1. Supreme Court has ruled that removal is permitted where plaintiff has tried to plead a state law cause of action that is entirely preempted by federal law and only conceivable cause of action to plaintiff is federal 2. Allows defendant to remove complaint to federal court even when complaint on its face shows that only state law claim because cause of action artfully plead U. Diversity Removal 1. Narrower Scope of Removal a. Removal in a diversity is narrower than original jurisdiction in federal court b. Removal unavailable if any defendant named is citizen of the state in which suit is brought 2. Devices to defeat diversity a. A plaintiff may defeat removal in a diversity suit by choosing to forego a damage recovery in excess of $75,000 b. 1359 does not permit improper or collusive assignment or joinder to invoke diversity but is silent whether this issue would prevent to defeat diversity i. US Sup Court has ruled that it does not but Statutorily have attempted to do so V. Non-Removable Claims 1. Some claims are specifically made non-removable if filed in State Court cannot be removed to federal court even through cause of action based on federal statute W. Separate and Independent Claims 1. 1441(c) allows for removal of otherwise non-removable claims or causes of action when combined with a separate and independent claim or cause of action cognizable under original federal question jurisdiction of 1331 2. However, 1367 extends supplemental jurisdiction in federal question cases to the full extent permitted by the Constitution a. Remand - 1441(c) permits remand to state court of all matters in which state law predominates courts have construed to mean that remand permitted of entire case, including both federal and state claims, when matters of state law predominate in the case considered as a whole X. Remand orders are non-appealable remand to state court of cases removed to federal court under 1441 are not reviewable on appeal or otherwise 1. Not reviewable when court remands based on lack of subject matter jurisdiction even if clearly erroneous 2. Supreme Court has held that remand order can be reviewed if district court remands for other reasons Y. Procedure - 1446 1. Defendant has 30 days from service of the complaint to remove if removal based on later pleadings then defendant has 30 days from the filing of that pleading a. However, if removal based on diversity then must be done within 1 year of the commencement of the action or barred b. Plaintiff must move for remand back to state court within 30 days of removal and action for remand heard by district court not state court


Z. A defect of federal subject matter jurisdiction is not waiveable in District Court or on appeal. AA. When can defect be raised: 1. Challenged directly until a judgment has become final and appeals are no longer possible 2. Challenged in the District Court any time before judgment 3. Challenged on appeal, even if not previously raised in the trial by any party 4. Raised sua spo0nte by the District Court

5. Statutory limitation that imposes constraint on location of litigation NOT Constitution 6. Venue defects are wiaveable by parties unlike subject matter jurisdiction by failing to timely object 7. Venue issue is not of changing courthouse but whether case gets dismissed 8. Generally not appealable because not final order BB. 1391 - Venue 1. 1391(a) diversity cases 2. 1391(b) all other cases except diversity 3. Provision where suit can be filed same for (a) and (b) (essentially) a. District where any defendant resides if all from same state b. District where substantial portion of cause of action arose c. District where defendant [subject to personal jurisdiction at time suit commenced diversity] or [may be found federal question] if not able under (a) or (b) above 4. 1391(c) corporate defendants


corporate defendant reside for venue purposes in any judicial district in which its contacts would suffice to support personal jurisdiction CC. CHANGE OF VENUE - 1404 1. Considers the following 2 main factors: a. The private interests of the parties such as: i. Residence ii. Access to sources of proof iii. Ability to subpoena witnesses iv. The need for a view of premises involved in the litigation v. Whether a judgment can be enforced in the forum b. Systemic interests i. Appropriate distribution of cases among the federal districts ii. Local decision of local cases iii. Distribution of the burden of jury service iv. Trail court familiarity with applicable law JURISDICTION England Unitary Court system


US Federal System of Government- Numerous courts Issues 1. Territorial Jurisdiction Territory of the borders of the state. 2. Subject Matter Jurisdiction Could be diversity, federal 3. Venue The correct courthouse 4. Inconvenient Forum (Forum Nonconviens) Inconvenient because the jurisdiction is too far away and would be hard to work in court there. (too hard to get there) Jurisdiction Subject Matter Jurisdiction Can the court hear issues of that nature. (Is there authority?) Diversity.

Territorial Jurisdiction can the court hear cases Persons or property or entities(corporations) (Can = power or authority) Long arm statutes relate to territorial jurisdiction. Where does the court get this power? Federal power from U.s. constitution and U.S. congress Article 3 Courts are Federal Courts. State power comes from state constitution and state legislature. Tribal courts Indian Tribe Courts (Indian Child Welfare Act). You cant use the state law when there is a Federal law and in event of a conflict Federal Law applies; Diversity jurisdiction When a Fed court hears a state law case

Erie Doctrine whos law the federal court uses when the basis for the jurisdiction is diversity. Because Cons Art III limits types of cases to be heard Diversity Federal Court subject matter jurisdiction- will cover Indians General Rule -Federal courts do not have jurisdiction over state law claims Exception is where there is Diversity (when parties come from other states) Subject Matter Jurisdiction a statute gives the court jurisdiction. It is a Class action Class Action Whole bunch of people Pendent Jurisdiction Federal claim with a state claim also which comes from the same cause of action. It is now called a Supplemental Jurisdiction . You can sue in the federal court in the state the Defendant is from. (So if D is from California and screws up in Arizona, you can sue in Fed court due to subject matter jurisdiction. Special Appearances Made to say that we should not be in this jurisdiction and are showing up specially to tell the court this and to get the suit dismissed. In Federal Court System Use a Motion to dismiss 12b2 MOTION lack of jurisdiction over the person. General Appearance That they admit that they acknowledge that they should be in court because they do business in that jurisdiction. You are saying that you belong here. Declaratory Judgement - If you dont like the jurisdiction chosen by the Plaintiff, you can file a declaratory judgment action in Federal Court to say that the chosen court lacks jurisdiction to hear the case. Motion to Quash Service of Summons or Complaint motion to dismiss the complaint. Effect Doctrine If you do something that has effect in a jurisdiction, even if you never step foot in the jurisdiction, you are accountable and that jurisdiction has control over you. Domestic Relations exception to Federal Court jurisdiction Even when there is diversity , Federal courts dont hear domestic relations case. Long Arm Statutes Done because of drivers driving through states. This is an implied consent to the laws of the forum state. 5 Types of Territorial Jurisdiction Power of the court over people and things. In personam jurisdiction Personal Jurisdiction Jurisdiction over his person. When you sue for damages and want money. If person is in the state state has jurisdiction If person is not in the state then no personal jurisdiction, but if you attach the property, you have quasi in rem type 2. In rem actions that bind property in order to adjudicate the rights of all persons who claim interest in the property. To settle all claims to a specific sum (quiet title action)


Quasi in rem Settles property rights of only specific persons. It does not settle rights in property against all persons or against the world. 1. Quasi in rem Type 1 Involves a specific dispute about the property itself. 2. Quasi in rem Type 2 Establishes rights to a property, but the property is unrelated to the underlying suit. Express or implied consent to the jurisdiciton is another form of jurisdiction over a person. ****Pennoyer v. Neff He was never notified and the manner of publication was improper. The court did not have jurisdiction over the defendant in the first lawsuit. Had they attached the property before the suit, there would have been adequate notice of the suit. There was no personal jurisdiction over him because he was out of state.and he is a non resident of Oregon. If there was no land, then there was NO WAY to hold Pennoyer with If he is a resident, They can get personal jurisdiction over him.

The Court cannot reach the Defendant outside the territorial limits of the courts jurisdiction if the Defendant is a Nonresident There is a limit on the ability to reach people out of the state. Test the test is whether he is a resident can get you Personal Jurisdiction; 1. Was Defendant Legally in the state 3 2. Was the Defendant literally in the state. Attaching property - You must attach the property in the beginning of the suit, not after the judgement! Corporations - Residency of a corporation 1. Where they are incorporated. 2. Principle place of business (Where there headquarters are.) Resident Agent person able to accept service on behalf of corporation. Service Purposes states must designate for service of process ****International Shoe v. Washington - D were sued in State of Washington for nonpayment of Work comp. D. says that we never stepped foot in Washington and we never went to Washington. Therefore Washington State court has no in personam jurisdiction over the Defendant. The D uses the theory of Violation of Due Process Clause of the 14 th amendment. (burden of interstate commerce.). In Personam - Personal jurisdiction analysis for fair play and substantial justice Multipart test Balancing Test (International Shoe v. Washington) Presence Benefiting from presence in that state . Minimum contacts does two functions 1. Protects the defendant against the burdens of litigating in a distant or inconvenient court 2. Ensures that state courts do not reach beyond their limits imposed on them by status of coequal sovereigns in a federal system. Minimum Contacts Not a mechanical concept. Contacts must be: 1. Continuous and systematic 2. Quality and Nature of the contacts. Court weighs the quality of contacts 3. Fair Play and Justice - Such that maintenance of a suit does not offend traditional notions of fair play and substantial justice. A Non resident defendant may be held under a jurisdiction as long as it is fair. 4. Has the D subjected himself to the laws of the forum. Foreseeability plus Purposeful Activity availment of the privilege of doing business in that state. (intended to take advantage). Foreseeability is not enough ., Purposeful - What constitutes Purposeful! It must be Reasonable and Fair. 5. Purposefully directed to forum. Advertising in a Forum State is acceptable as a purposeful activity Now apply the facts to this doctrine above. Jurisdiction of non resident Defendants: - when a Nonresident Defendant causes the Tort or contract action in the forum statewhat is enough to establish minimum contacts in: (Differnece in the degree and types of contact) Specific Jurisdiction The jurisdiction attaches when the conduct arises out of the conduct in the state and must be minimum contacts. It must arise in the Forum state . Contacts must be greater. There has to be more contacts if the Defendants activities arising out of the conduct because of Fairness . Must be fair to be accountable General Jurisdiction The jurisdiction attaches when in state activities Cause of action does not arises in the forum state . Does not arise from d activity in the Jurisdiction. Adding to test (BK case) Balancing Test to add to Minimum Contacts Burden is on the Defendant 1. Burden on the Defendant. 2. Forum states interest in adjudicating the case. 3. The plaintiffs interest in obtaining convenient and effective relief. 4. Interest of several states in furthering fundamental substantive social policies. ***Once you find minimum contact, you must determine if it is unreasonable or unfair to try it there*** It is possible that there will be minimum contacts and it would be unfair anyway.
Worldwide Volkswagen v. Woodson. Kulko v. Superior Court


Helicopteros Nacionales de Columbia, S.A. v. Hall

Reformulation of Minimum Contacts Additional & different factors around jurisdiction Elements dont always match facts and you have to make an argument Match fact pattern to body of doctrine on final The following two cases show a refocusing on what is important to the Supreme Court.
Burger King v. Rudzweicz Asahi Metal Industry Co. v. Superior Court

Stream of Commerce - Putting something into the stream of commerce is not enough to establish minimum contacts

Notice Notice must be done by means calculated to inform the desired parties .

Notice in Publications - Notice of claim must be adequate. Publishing notice in a local publication is not sufficient to inform parties out of state of a notice. Ways to Serve Notice 1. Notice in person 2. Notice by mail If they dont accept it in the mail, then you can get the court to order them to reimburse you for the expense of serving them again. 3. Notice to appointed agent (substituted service) 4. Notice by publication If you know there address, this is unfair, you can mail them., If you dont know the location, then it may be fair. Reasonably calculated to apprise the party of the pendency of the action . Minimal amount of notice necessary in constitutional cases. Must show that a reasonable method was used. Rules of Service of Process Federal Rule 4

Florida Rule for Process in Florida 1 .070 Sheriffs can serve Anyone over 18 not a party can serve as long as they are appointed by the court. Parties to the suit A Lawyer is not a Party to a lawsuit Only Plaintiffs and Defendants. In Federal Court, a lawyer can serve process because he is over 18 not a party. Forma Pauperis Unable to afford filing fees, so waives service of process and serve it yourself. You must tell the person that they are being served when you serve them Service to other states Service is still good even if service complies with either to rules of the forums state court or the state it is served in. Time Frame - Time frame the service must be made after the complaint within 120 days of the filing Rule 4. You Can ask the court for a Motion(application for an order) to extend and that gives you an Order KNOW NOTES ON P 281Mullane v. Central Hanover Bank Set rules for service of process important. The case that articulates the obligation to produced notice to an adverse party reasonably calculated to reach them .

Publication not always enough . The constitutional rationale is depriviation of property rights. If you are to do this, you must do it in compliance with due process and be fair. What are fair types of service in person, mail, service to an appointed agent. Court says that if you know the persons whereabouts, publication is unfair . If unknown, it could be fair. Parties were in other states. This case says that it may be ok (as opposed to Pennoyer) to notify out of state and obtain personal jurisdiction. In Mullane they were going to take property 1. Procedural Due Process - How the government does it. 2. Substantive Due Process Whether the gov can do what it is it seeks to do Can they take it away? 3 part test Mathews v. Eldridge. Long Arm Statutes Jurisdictional statutes - Can exercise in personam jurisdiction in certain factual scenarios to hold out of state defendants accountable in the state. In California it must abide by Federal Constitution Says. Reaches further than NY and Florida. This is an example of a jurisdiction that has a LAS as expansive as what constitution and Gov law will allow. Some states only have lists that restrict what minimum contacts will allow. NY & Fla have statutes that have lists which have fact settings that you cant fit into the list. Constitutional standard is what defines and articulated minimum contacts. If in minimum contacts, defendant may be held accountable. Federal Long Arm Statute the Fed in diversity cases are usually content to rely on the long arm statutes in the forum state.
American Eutectic Welding Alloys Sales Co. v. Dystron Alloys Corp.

In American Eutetics Only certain causes of action were able to get long arm. Employees had the liability to be held, but Dystron was not reached because its actions were not under that list.


THERE ARE FEDERAL LONG ARM STATUTES. Omni Capital International v. Rudolf Wolf & Co. federal statutory cause of action. Uses Federal Long arm statute. While the fed court has personal jurisdiction and under long arm they can be reached, the problem is that where they are located, under Federal Rule 4, you cannot get them because there is no provision for nationwide service of process at this time. Also, Lousiana long arm statute did not have a service of process. So Rule 4 did not help. In 1993 they changed the rule for allowance of nationwide serivce of process. Court of Chancery Court of Equity ****Shafer v. Heitner We worry about D is cases in personal jurisdiction. You dont need minimum This is not a fight over the stock. The court tried to obtain Quasi in rem jurisdiction over the Defendants. These people did not have presence or minimum contacts. We have not tests for personal jurisdiction. This law suit is not about property. This is not a lawsuit over a pice of property in the jurisdiction so the is NOT IN REM JURISDICTION. The stock in Deleware is not related to the suit. It is nothing to do with the claim that makes it QUASI IN REM TYPE II because it involves property not directly related to the suit. Can the stock form the basis over persons not in that state using property unrelated to the suit. This stock is not enough to hold them Doctrinal effect in this case quasi in rem type II is same as MINIMUM CONTACTS FORMULA. The court did not explicitly say that. Quasi in Rem Type II Jurisdiction Effects of Quasi in Rem is to make it more like In Personam Jurisdiction in that you need minimum contacts (so it is more like due process and the 14th amendment.) The relationship among the forum, the defendant and the litigation. if there is a relationship, then you get jurisdiction. This equals fair play and substantial justice (a fact pattern in which there is a relationship between the Defendant, the Forum, and the Litigation. Presence physical presence in the state can be residency.

Presence in a jurisdiction when you have it then you dont need minimum contacts. Fraudelent Enticement - False pretenses will get you out of it. Burnham v. Superior Court Federal Long arm statutes insert Implead bring in another Defendant not named in the original suit. (In Federal System) Interplead will get to later.
CONSENT TO JURISDICTION You allege the jurisdiction in the complaint. General Appearance Deliberate Appearance Inadvertant Appearance Due to No timely objection All jurisdictions will find the defendant has submitted to territorial jurisdiction if they dont make a timely objection. Motion to Dismiss - You must make a motion to dismiss on your First Appearance to the court. You make it or waive it. Consent to jurisdiction - You can Consent to the personal jurisdiction of the court. What kind of jurisdiction can you consent to - Territorial or Subject Matter Jurisdiction Territorial Yes You can consent to the jurisdiction Consent to Territorial Jurisdiction. 1. File an answer & make a general appearance 2. Do nothing but the other side may get a default judgement. 3. By not raising lack of jurisdiction 4. By default 5. By contract if it is fair Challenge to Territorial Jurisdiction 1. Challenge by special appearance 2. Challenge by putting it in your defense Subject matter No choice or consent here This is up to the court. Supplemental proceeding file a complaint in state number 2 to enforce a judgement from state number one, In response you file a motion to dismiss. In Federal court it is a 12b2- lack of jurisdiction over the person. That is a Collateral Attack .(movement to dismiss on grounds of lack of personal jurisdiction). If the court in state number decides that you are wrong and that there was jurisdiction in state number one, then the defendant is not allowed to raise the defenses. If you lose on collateral attack, it means that state one had the right to enter the order and you cannot disprove the merits of the case. ****Baldwin v. Iowa State Traveling Mens Assn - Defendant loses at trial level for personal jurisdiction and dont take it up on appeal, this means that it is being taken up to next court. They CANNOT raise lack of personal jurisdiction while on appeal, They missed their chance . They cant make the collateral attack because it was not on their appeal. Forum Selection Clause Jurisdiction is enforceable if: 1. It does not limit defendants liability 2. It does not prevent claimant from getting a trial in a competent court of jurisdiction. However, there is an issue on whether there was a negotiation of a contract that has a forum selection clause versus a contract of adhesion. The Forum selection clause helps because it keeps litigation out of different states. Inconvenient Forum - Forum non conveniens For an inconvenient forum the party raising the objection has the burden.


Balancing act The hardship must outweigh the forum 2 doctrinal principles of inconvenience. requires different standards 1. As a result of inconvenience - moving the case from one court to the other, no dismissal at issue. 2. As result of inconvenience, the case actually gets dismissed because it is so inconvenient. (heavy burden to show inconvenience must be heavy burden). Florida Law No litigation in Florida for persons having nothing to do with Florida. McCray Case- Between two parties having nothing to do with Florida wanting to litigate there. Fla said no.

Carnival Cruise Line v. Shute Means to object to Jurisdiction File a motion Failure to provide Discovery will create personal jurisdiction. - By refusing to render information and produce something an inference is drawn that there is personal jurisdiction. Insurance Corp. of Ireland, Ltd. V. Compagnie Des Bauxites De Guinee Rules 26-37 include Discovery. Relation to Territorial Jurisdiction to Choice of Law Court will use the law of the state it is in unless there are compelling reasons to use the law of another state. Due process does not allow use of law that is only slightly related to the subject matter. If the court has no interest in it, the state will not hear it. You must first find out what the law of the state is Rules to figure out whos law applies: (tests) you must go to each states choice of law rules as found in case law. See notes after Phillips case You file suit in Fla and your other choice is Georgia. If you file in Fla, the choice of rules say look to Georgia law in a particular fact pattern. If you file in Ga., It may say, see Florida. It is possible as to the states decision on whos law applies is that it may use anothers states law to settle the dispute. Need to be concerned with jurisdiction Need to be concerned with whos law controls

Test to see if states choice of law is ok is Fundamental fairness to use another states law. The supreme court ultimately said that at some point, a states decision as to its choice of law can be rejected. Ultimately when it is not fair or unconstitutional violation of due process. The SC will look at a states choice of law decision making only to the extent necessary to find if it violates due process (fundamentally unfair). The analytic process a state uses to decide which law to use will not be second guessed in the supreme court unless the decision that the state makes is unfair. Test could also be which state has a greater interest in the case . Choice of law is independent of due process. False conflict If the states laws are not in conflict with another law, it is ok to use it. Boot Strapping In a breach of contract case Validity can apply the law of the state from which it was in traditional law of validity is to look to the state the contract was made for a validity suit. Performance Traditional law of performance is to look to the state of performance to determine a performance suit.
Class Action Law Suit It is uneconomical for individual plaintiffs to sue a big company for each having a small recovery. Opporunity to opt out or the final decision is binding on you. Civil Rights - It is not a violation of Civil Rights unless they did not give you the chance to opt out. Opting out and adequate representation ensure no violation of civil rights. Plaintiffs in class are protected. Federal Rule 23 covers Class Action Typicallity Defendant has acted the same as to various plaintiffs Class is so numerous as you need to join them together You can opt out of 23(b)(3). You can opt out and sue yourself for money later.

You cannot opt out of 23(b)(2) because court will decide if it will enjoin or not. Page 368 for rule Phillips Petroleum Co. v. Shutts This is a class action 23(b)(3) Allstate Case p378 Minnesota could have used Wisconsin law. SUBJECT MATTER JURISDICTION Federal Question Federal Jurisdiction 3 concepts/topics for Federal Jurisdiction


1. Grounds 2. Refusal to exercise jurisdiction (abstention) 3. What is applicable law for the federal court (Eerie Doctrine) Know sources of Fed jurisdiction Diversity subject matter jurisdiction28 USC 1332 Diversity Statutory There is a federal statute that says it can be tried Admiralty Bankruptcy Limited jurisdiction how we describe federal courts they are courts of limited jurisdiction KEY POINT - Fed is OVER $75,000.01, and diversity, subject matter jurisdiction, etc. Challenging Federal jurisdiction - If you want to challenge jurisdiction of the court in the federal court system, what do you do? File a 12b1 motion lack of jurisdiction over subject matter to challenge the jurisdiction of the federal court. YOU CAN RAISE THIS ANYTIME File 12b2 motion motion to dismiss for Lack of jurisdiction over the person to dismiss. If you file a 12b2 and lose, then file 12b1, can you do that? yes If you file a 12b1 and lose, then file a 12b2, can you do that? no by not filing motion for lack of in personam, you are saying then that you agree to in personam when you first file for subject matter jurisdiction. YOU CAN FILE THEM IN THE SAME MOTION. CAN DO IT ALL TOGETHER. You cant first file a motion with waivable defenses in your answer (subject matter jurisdiction is not waivable. You can do it by answer or motion so long as it is the first thing you do. If you dont make the motion first time out, you waive them. If you dont file a motion, and you just file an answer , you are subjecting yourself to in personam and subject matter jurisdiction. You cant waive subject matter jurisdiction the way you can waive territorial jurisdiction. Chapter 85 District Courts 1300 chapters came from congress because the constitution gave them the power under article 3. This is all they are allowed to do!!! Article 3 courts courts of limited jurisdiction Parties cannot agree to subject matter jurisdiction You can waive defenses by not making motions. 12(h)(1)Waiver of preservation of defenses Defenses under personal jurisdiction are waived if: You can waive a defense of lack of subject matter jurisdiction anytime, even at appeal. You cant waive subject matter jurisdiction because it is about the authority of the court. Cant file a bankruptcy in divorce court because it lacks the authority and power to do it. Can raise lack of subject matter jurisdiction Attorneys, Parties, Judge, (Sua Sponte!). Answer is not a motion. Motions are not pleadings Louiseville & Nashville RR Co. v. Mottley

Diversity attachment - Diversity attaches when the complaint is filed you cant move after the complaint is filed.

KEY POINT - Federal Question Arising under A federal defense is not sufficient to get you into federal court. The Federal question must appear must appear in the complaint. The must be in the complaint and not in the defense. Federal statutory cause of action must be in the complaint.
A breach of contract case You need subject matter in local trial court and territorial jurisdiction they are separate concepts. It must be for a certain amount of money in Florida or it goes to county court. ($15,000). Trial courts of the states have subject matter jurisdiction. Personal Jurisdiction depends upon the persons involved. Federal court has power to hear what sounds like a simple contract state dispute If diversity. In absence of diversity, Federal court can hear if $75,000.00 and from separate states in absence to a federal diversity jurisdiction. 28 USC 1441(a) Removal from state court to federal court. Merrill Dow Pharmaceuticals Inc. v. Thompsan

KEY POINT - The petition to removal occurs and that is that.the next time anything is heard is in federal court.! Once removed to Fed court, there is no further argument in state court until it gets moved back.

Parties should be allowed to remove to federal court because in terms of a federal statute, they would be more competent to hear the matter. Also, diversity helps in fairness to out of state defendants. Exception(1) to removal in diversity cases If defendant is from the state where the lawsuit arises then he cannot remove to federal court. Where the D is from Forum state and the case is removed, the D cant do it because there is not prejudice against him. KEY POINT - A defendant can only remove a case to federal court if the case could have originally been brought in federal court! (i.e. federal question jurisdiction). (under subject matter jurisdiction).

EXAMPLE PROBLEM: Fact pattern: - Individual who is civilly committed to state mental hospital. Staff members there beat the individual.(argument is to subdue,) but facts show this is not the case. Family members want to do something about it. Causes of Action 1. File a tort claim for battery or negligence


2. 3.

Fed statutory claim protecting individuals Civil rights violation by state Title 42 USC section 1983 anyone under state law who violates 14th amendment protects life liberty & property (Due process). If incarcerated there is a protection Key - There is a body of laws that pertains to protecting persons who are incarcerated.

Causes of action in Federal system called claims for relief (1 st claim for relief, 2 nd claim for relief) Florida causes of action and called counts.

Federal court has jurisdiction subject matter jurisdiction Federal questions State court has territorial jurisdiction because cause of action arose in Fla Dont need to worry about minimum contacts because they are present. But not over the civil claim To file in state court you have to ask if a state court has subject matter jurisdiction over a federal matter no File lawsuit in Federal District court for Southern District Tort claims ok in Fla. But you must show in state court in Fla you must show tort case and that there is money minimum $15,000.00 minimmum for state So state claims for $15,000 gets you to state court. In Title 28 there is a removal to State court. Venue = courthouse As for the state law claims (tort)- Federal court will have jurisdiction if the case passes a test or is diversity. Trying Federal causes of action in state court You must find in the federal statute if it says that cause of action can be tried in a state court, then you can do it. Information may say that you either can or cant try this cause of action in a state court. It may say that it can only be brought in Federal Court. Most of the time it says Nothing Talk about if there is a private right of action under statute It mostly will not say anything about exclusive jurisdiction in Federal court So, you can more than not bring a federal cause of action in state court. State constitution may allow an additional cause of action for violation of state law.
Both courts have subject matter jurisdiction When the federal court can hear both fed and state causes at once.

Removal to federal court when state law claims are also involved - If we file both a federal and state cause of action in state court, the defendants can remove to federal court. 28 USC Sec 1441. This takes the state law cases with them because they arise out of the same cause of action. Mas v. Perry P sued in fed court for D using 2 way mirrors to spy on them Test for diversity jurisdiction (Residency) Citizens of different states Money over $75,000.00 Tested when when suit is first filed For diversity purposes Citizenship means domicile, mere resident of the state is not sufficient. Determining Citizenship(Person must) 1. Citizen of the United States 2. Domiciliary of the state (Domicile is true, fixed and permanent home and principal establishment and to which you have the intention to return when absent. Corporation Residency 1. Principle place of buisness or production 2. Principle place of nerve center headquarters United Mine Workers v. Gibbs Makes a test whereby the Federal court can hear the state law claims

Pendent Jurisdiction

KEY POINT - Pendent Jurisdiction Test When there is a claim that has both state law and federal law claims in it, the federal courts will hear it: 1. If claims arise out of a common nucleus of operative facts (MEMORIZE) 2. It is Discretionary The federal court does not have to hear the state claim, unless evaluative process based upon: 1. Fairness must be fair to the parties 2. Judicial economy 3. Convenience Pendent jurisdiction is not a plaintiffs right, it is a doctrine of discretion Pendent Jurisiction and Anciallary jurisdiction is all rolled up into supplementary jurisdiction by statute. Residency You can have multiple Domicile can only have one. The one place you are legally found, intended to be yours and where you can be found Citizenship the state or country that you have allegiance ** You cannot have pendent party jurisdiction in a diversity case. There has to be complete diversity.


Owen Equipment v. Kroger NON FEDERAL CLAIM IS NOT ANCIALLARY Anciallary when D1 sues D2. Even if no subject matter diversity, it is allowed so it keeps the case in one place. But, independent cause of action is different than it was for P to D2, then it cant be heard if D1 leaves no because there is no complete diversity. You can file an amended complaint Source of Federal Court Jurisdiction on counterclaims - exception to diversity in federal claims To remove to federal court file a petition in the district court. Fed court sends a letter to trial court and the trial court sends the paperwork Because the case belongs in federal court due to federal question (diversity, etc.). As soon as removal, everything goes to Fed court., the next thing that happens is in the federal court. 30 days to remove to the federal court. Exam - $75,000.01 must be known for a fed case Free v. Abbott Laboratories Do each member of the classs claim have to equal the minimum amount to make it heard in Federal Court. no Can you include in the statutory claim the attorneys fees? The named plaintiffs do have to get to the minimum $75,000.00. This is a post 1367 case Statute meant that in a class action, not all members of the class have to show that their damages get to $75,000.00. Diversity In a class action the court looks at the named plaintiffs citizenship only to determine diversity. 1367 written to allow fed court take on pendent and anciallary claims in fed question cases, but it is narrowly drawn for diversity purposes because most diversity cases could probably done in a state court and this prevents fed courts from being clogged up. Because fed courts have no special abilities in diversity cases. REMOVAL You can remove Removed Diversity Federal question cause of action. Remand - You can remand when the case does not belong in federal court for such reasons as Subject Matter Jurisdiction(diversity) Remand when - And that can happen anytime before final judgement. This is different from a dismissal and is better than dismissing it. Today, if no subject matter jurisdiction., it remands. IfSOL runs out while being bounced back and forth. If you file in federal and it is dismissed,(but was a good state case anyway) and the SOL runs out, the SOL tolls and you get to proceed with your state law claim in state court. Removal Caterpillar Inc. v. Williams

Federal pre-emption When the federal charge takes over all causes of action. It occurs only in some rare circumstances (like collective bargaining). Race Judicata - If plaintiff has causes of action that arise out of the same events and I do not plead them. You must. Key point - The plaintiff controls the complaint Well-pleaded complaint the federal cause of action must be in the complaint. It must show that the complaint is based upon a federal cause of action Federal defense if a Defendant raises a federal defense it still does not get him to a federal court. Will not get you removed to federal court. Certain cases dont get you removal (ERISA & FELA p442)

VENUE Protects Defendant against inconvenient forum and fairness Venue = Courthouse or place of trial Composition of jury, etc. Governed by statute Fla 41.011 Venue statute Every state has one Federal Court has a federal statute 1391 Challenge to venue Defendant must be done at beginning (whichever comes first) In answer By motion If you dont do it, you waive it. Courts decisions on venues are interlocutory 2 types of venue


Local Transitory Read p449 the way to determine where defendant gets held accountable. KEY POINTChange of venue Can you change venue Yes CONVENIENCE and FAIRNESS Fed statutes that deal with change of venue 1404 & 1406 You start by filing a motion with the court Anyone can change venue Ferens v. John Deere Co. Transferees forum has to apply transferors laws (where the court came from). A state court that has jurisdiction can decline jurisdiction Piper Aircraft v. Reyno

If there is a lack of personal jurisdiction over one of the Defendants, the court may have to move the case to an alternate forum. Transfer of Venue - 1406(a) Statute that says that a court can move the case where it is just to do so. Where that fed court does not have personal jurisdiction, but another federal court somewhere else in the country does have it, they can transfer the venue to the court. A 1404(a) transfer is different because it is a convenience transfer., but this is predicated on no personal jurisdiction. 1406(a) is also convenience

Does a petition for removal constitute a defense of lack of personal jurisdiction NO Even where there is personal jurisdiction, the court could decline to take the case. Defendant - Has the burden of showing the forum is inconvenient (Forum Non Conviens) Assumption of Convenience Viable remedy elsewhere. Forum Shopping by Plaintiff is rarely disturbed. KEY POINT TEST The plaintiffs choice of forum may be affected when: (Discretion abusive discretion) Presumption of P forum is correct Burden of overcoming is on D D must show that change will still let P have a cause of action Type of inconvenience Type of parties involved (foreign changes things)



THE ERIE PROBLEM SECTION 1 - THE LAW APPLIED IN FEDERAL COURT (Note: basic question to be decided is whose law, State or Federal procedural/substantive, will court use to determine outcome of case) SUBSTANTIVE I . Swift v. Tyson (1842) (Pre-Erie) A. the case commenced in federal court choice of law would effect outcome of the case so case concerned which law to use: state law; federal law; federal common law B. Ruling in case based on reading of Section 34 of Judiciary Act of 1789 - Supreme Court read Section that laws of the several states meant state statutes only - that federal courts only follow state law if statute on issue if not use federal law or federal common law C. Court held that federal courts should follow the general law rather than a states local law in cases where the state law deviated from the general law D. At time of Swift 3 kinds of law relevant to cases tried in federal court 1. Federal Law law of the national government based on constitution, treaties and statutes 2. General Law (quasi federal common law) common law applied more or less uniformly by all civil court in federal and state courts common law for federal courts for that jurisdiction 3. State Law (local law) statutory and common law of the state which might differ from the federal and general law E. This law of Swift controlled the choice of law decisions until Erie. II. ERIE RAILROAD CO. V. TOMPKINS A. Issue: in a diversity case, must the federal court apply state common-law to the merits of the case? YES 1. The Swift doctrine was an unconstitutional assumption of power by the federal court - Because state law must be applied, there is no longer any federal general law 2. Federal courts must ascertain what the state law is, or what it would be if the state courts faced the question presented


KLAXON Co. v. STENTOR (1941) - first case to determine that Choice of Laws rules of forum state where district court is sitting are to be used not any other state, notwithstanding where cause of action arose, etc. A. Federal District Court in diversity case will follow the choice of law rules of the state in which it sits (forum state), and then apply the law to which it is directed by those choice of law rules A. Also when action transferred from federal court in one district (transferor court) to federal court in another district (transferee court) the transferee court should apply the law that the transferor court would have applied if the case had not been transferred




Rules Enabling Act (1934) and Federal Rules of Civil Procedure (1938) 1. Rules promulgated under the authority of the Rules Enabling Act Act provides that Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the District Courts 2. Act also provides that such rules shall not abridge, enlarge or modify any substantive right otherwise per Erie use State law 1. Prior to adoption Federal Courts followed the procedural rules of state 3. The Federal Rules of Civil Procedure control over inconsistent state rules - This results from the Supremacy Clause of Constitution regarding federal law 4. The federal rules control matters within their scope, even when state procedural rules would, if applicable require something different 3 PART ANALYSIS REGARDING FEDERAL LAW/RULES 5. If federal procedural rule, federal statute, or federal policy supreme over all state procedural rules 6. Federal Court will attempt to make every allowance so federal law/state law does not conflict (i.e.; interpretation that Rule 3 does not effect state statute of limitations 7. If federal law conflict with state substantive right (enlarge, modify, or abridge & where it is bound upon with the rights and obligations either procedural or substantive) then pursuant to Erie, state law will apply CASES LEADING TO ABOVE (B 3 PART TEST)


GURANTEE TRUST CO. V. YORK. Outcome Determinative Test a) Issue: if a federal procedural rule would lead to a substantially different outcome than would the state rule (if the case had been brought in state court), should the federal rule apply? NO (1) Generally, procedure in the federal courts is governed by the federal rules however, the source of substantive rights enforced by a federal court under diversity jurisdiction is the laws of the states (2) It will be considered substantive if the outcome of the suit is significantly affected by disregard of the law which would have applied in state court. (3) In order words, a rule of law is substantive under Erie if it has a substantial effect upon the eventual outcome of the case. Note: Dale says Guaranty wrong because effect would be to do away with Federal Rules because everything will have an outcome under this rule so everything will be substantive and controlled by state law in light of both Klaxton & Erie 8. BYRD v. BLUE RIDGE RURAL ELECTRICE COOPERATIVE - Balancing Test a) Issue: where question in a diversity suit in federal court concern the mode and form of remedy, will state procedural rules that affect outcome of the suit be allowed to override essential federal rights? NO

determinative test of York, while generally valid, is not the sole test to be used to separate substance from procedure for purposes of the Erie mandate. (2) The preference for state law is not binding if application of such law would deprive one party of a strongly protected federal right, even if the standard outcome test is met. b) Test: (Brennan established 3 Part Balancing Test) (1) Where it is bound upon with the rights and obligations either procedural or substantive (2) Countervailing considerations whether or not using state law would deprive defendant of rights/privileges afforded by federal law/constitution (3) Not sure if outcome would be different no way to determine if outcome would be different using state/federal law 9. HANNA v. PLUMER a) Issue: in a civil action brought in federal court under diversity jurisdiction, must service of process be governed by federal rules, even where the outcome is affected? YES (1) Federal Rule 4 was designed to control service of process in diversity actions the constitutional provision for a federal court system carry with it congressional power to make rules governing the practice and pleading in federal courts (2) To hold that federal rules must cease when they alter mode of enforcing state created rights would ignore the federal power (3) When federal and state rules conflict the federal rules control even if the outcome will be different, unless fits into the exception (a) Exception: where using the federal rule would abridge, modify, or enlarge the substantive law of the state 10. WALKER v. ARMCO STEEL CORP. a) Issue: in a diversity action, should federal courts follow state law in determine when an action is commenced for purpose of tolling the state statute of limitations? YES (1) To give the cause of action longer life in federal court than it had in state court would add something to the cause of action in violation of Erie (2) Hanna held that manner of service should be governed by the federal rules unless direct conflict but no direct conflict because Rule 3 of Federal Rules does not apply to tolling statute of limitations so apply Erie Rule unless exception applies - Rule 3 only states when action commenced in federal court

(1) The outcome


SECTION 2 - REVERSE ERIE FEDERAL LAW IN STATE COURTS I. GENERALLY Even today some issues are muddled and not really clear. A. A state court of general jurisdiction is required to hear civil suits based on federal causes of action B. Reverse Erie generally means that a State Court hearing a Federal cause of action must use Federal Law NOT state law to determine outcome C. Dice v. Akron, Canton & Youngstown Railroad Co. (1952) 1. Issue: does the right to a jury trial under federal statutes prevail over state procedures allowing judge-alone fact finding even when the federal remedy is sought in state court? YES


The validity of releases under the federal statute raises a federal question governed by federal law, not OH

law The applicable federal law renders void a release of rights which was induced to sign by the deliberately false and material statements of c) The right to a jury trial is a part of the remedy afforded under the federal act d) The right is not a mere local rule of procedure to subject to denial as the trial judge did 2. Only way to square Byrd (jury trial procedural right) and Dice (jury trial substantive right) is to say that Federal Courts will attempt to preserve the right to a jury trial in any way they can Note: State Courts of general Jurisdiction are required to hear civil suits based upon federal causes of action Strict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal laws. Rule 3 of FRCP is the tolling mechanism to all federal actions. Dice sued under Federal Employers Liability Act so this is a Federal Tort case One defense was that he had signed a release. Could be removed to federal court because it is a federal question. D can remove. Not P. FELA says that it may not be removed to Fed court because a Fed court could be too far away. Is release valid?


Release GENERAL RULE In federal question cases it can be removed FELA exception Suits under this cannot be removed. IF Diverse in Federal Question case NO because Plaintiff filing in State Court cannot remove to Federal Plaintiff filing in state court cannot remove to federal court, only Defendant can remove. Fraudulent Inducement - RELEASES If fraudulently induced, then release is invalid. UNIFORMITY - They keep this uniform, especially for diversity cases. SO TEST FOR FRAUDULENT INDUCEMENT WILL BE FEDERAL LAW FOR UNIFORMITY. Jury TrialJury Trial FELA makes the right to jury a substantive right. Supreme Court gives you a right to jury here. You cant square Byrd and Dice, they are only looking for a way to give a jury trial.


I. GENERALLY A. Federal Court in effect sitting as a state court 1. When deciding a question of state law, a federal court should put itself in the position of a state court of the state in which it sits 2. When deciding state law, the federal court must used all relevant information that a state court judge would use to answer the same question B. 3 Devices to aid Federal Courts in determining state law 1. Certification Send it to the supreme court of the state. a) Occurs when federal court presented with case of first impression of state law or where law unclear on particular area b) federal court will pose a certified question to the supreme court of the state which requests that the state court answer the question so that the federal court can continue with the trial based on the answer of the state court 2. Abstention a) Federal court will abstain from deciding case until parties themselves have received a decision from the state court on the issue before the court. Fed court does not want to hear the case. b) Parties will file suit in state court requesting state court determine law governing the issue pending in the federal court c) 4 types of abstention:

(1) Pullman proper when state law is uncertain and a decision on state law grounds may permit the
federal court to avoid deciding a federal constitutional question. Unclear issue of state law which is dispositive of the case.

(2) Burford proper when erroneous decision of state law would disrupt an important complex
regulatory scheme

(3) Tibodaux proper where state law is unsettled in an area of particular local concern such as eminent
domain 3.

(4) Younger federal court will not enjoin a pending state criminal prosecution Judge decide issue on his own Fed judge interprets it on his own. 28

Starting a lawsuit for the sole reason of obtaining information. DeWeerth Got filed in Diversity in Federal Court. Baldinger Good Faith Purchaser. Fed Court using NY substantive law. Owners obligation are to use Due Dilligence and this is unclear in NY law. Fed court usually determines what rules are of highest state court. Appellate court reverses. State court judges make the rules and do the best they can Federal judges do the same thing. So Fed judge is sitting just as a state court would use WHATEVER CHOICE OF LAW THERE IS. If there was no choice of law problem, then use state court. LAWS OF CERTIFICATION -must check to see if the State law has a rule about allowing certification. Guggenheim Another art theft. They reject the law of Deweerth. The federal ruling in Deweerth should not be bound by the decision of the 2nd circuit. NY appeals court is not bound by Federal interpretation of a State Law. If a decision from the Federal 2nd Circuit does bind the NY court of appeals Federal Question or some decision made on a federal law in the Fed Circuit Court. KEYPOINT - If issue is state law and it is an unclear issue of state law and due to diversity it goes to a federal court, who determine it when the state is still undecided in an area of law, the Federal ruling is not binding upon the State courts or State Appellate courts. RULE 60(b)(6) Relief to vacate a judgement Deweerth was reversed to go along with Gugenheim due to the reality that the Federal Judge misinterpreted the Fed Law. At the time of the final decision when the appeals was entered ThE law did not exist. Even though the law changed, the case was over. This means too bad. The only thing left was to appeal to Supreme Court. THE CASE WAS OVER YOU CANT USE 60B6 TO GO BACK AFTER A CASE IS OVER.


II. GENERALLY A. The Nature of Federal Common Law - Judge made federal law which is both jurisdictional conferring under the federal courts federal question jurisdiction and supreme under the Supremacy Clause of the Constitution

1. B. C.

Distinct from the general law referred to in Swift v. Tyson

The Federal Rules Decisional Act of the Judiciary Act of 1789 specifically did not make room for federal common law and was not recognized until the decision in Clearfield Trust . Now an important part of federal law notwithstanding omission from Decisional Act Clearfield Trust Co. v. United States 1. Issue: are the rights and duties of the US on commercial paper which it issues governed by federal rather than local law? YES a) Erie does not apply to this action because when the US disburses funds, it exercises a constitutional function or power the related duties and rights are based on federal, not state, sources b) Where Congress has not legislated in an are that is governed by federal law, the federal courts must fashion federal common law. c) Sometimes the federal courts may look to state law in creating federal common law, but in this situation, the application of state law would subject the US to exceptional uncertainty a uniform rule is necessary Federal common law created by federal judges applies in the following contexts: 1. Controversies between the states 2. Foreign Relations - International affairs 3. Admiralty


5. 6.

Cases in which US is a party Certain proprietary interests of the US? Inferred from statutory or constitutional provisions - Implied rights of actions

Clearfield Trust US gov wants reimbursement for money paid on a stolen check. Brought in Fed Dist Ct, which used state law. This is bad, Needed to use Federal Law. Actions on Federal Paper Federal Common law is used. When US is carrying out Federal Work, it will use Federal common law using specific laws under Federal Statutes.

Choice of law is not statutory it is found in case law. Federal Courts are bound to use State laws in Diversity Cases and Federal Question cases, but does not apply to state courts. Fed and state courts use same substantive laws, but different procedural law. Substantive state law used if no Federal law in its place. Question how fed courts chose law Choice of law rules. Constitution (Supremacy Clause) Art 4, S2. - State court has a case involving federal issue? State court must follow Federal law because where the constitution or federal act speaks of the law or issue, it must be followed.


Whos law does the federal court use when several states are involved in the dispute? Look at choice of law rules of the different states. (piper would look at Pennsylvania) because that is where the case is brought (which state). Doctrine to say this is the case of ? (there is no federal statute). Fed court could use another states laws - it can if the state in which the federal court sits has choice of law rules that allows all state courts in that state to use the laws of other states. (Fed court acts in this case like a state court). You first look a the states choice of law rules. Basic rule of law in Torts choice of law is commonly where the wrong occurred. Look there first. It is possible that a federal case in Pennslyvania, using Pennsylvanias choice of law rules, may end up using anotehr states law. SO A FED COURT SITTING IN DIVERSITY USES THE CHOICE OF LAW RULES. USES THE WHOLE LAW, INCLUDED IN THIS LAW IS CHOICE OF LAW RULES. Choice of law rules are part of the substantive law rules of the forum. Eerie Railroad v. Thompkins Swift v. Tyson

KEY POINT - Erie Doctrine - Federal courts must use statutory and case law in the forum in which it sits. Fed uses state law and acts just like a state court. Guaranty Trust Co. v. New York Holding: Reversed for DIf Sol runs out in state law, then the Federal court must uphold I Procedural law and substative law are the same.SOL is a substantive Right and must be applied as the state would. Do SOLim apply to suits in Equity? yes in New York and Federal Court

Laches (in equity) neglect to assert a right or claim which ,should have been done in a timely manner IN EQUITY The equitable analog to a statute of Limitations . When you have an equitable proceding and you want to know if it is time barred, you loook for SOL under state law or the equitable doctrine of laches applies. More flexible in Federal court they use laches because there are no SOL for certain actions. Erie did not address substantive v. Procedural laws because it was about torts. Domestic Relations Exception to Federal Court Jurisdiction Federal Courts dont have jurisdiction over divorce cases. Without this doctrine any diversity with $75,000.01 divorce case could be heard. Frankfurter concludes that state law applies because fed rule would be too different in outcome (opposite) in a diversity case. KEYPOINT Outcome Determinative Test If the outcome of the case is significantly effected by the rule of law, that makes it substantive

Diversity are garden variety state law cases, only citizenship of parties changes that.

TEST Whether the rule really regulates procedure the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infractions of them. Wont abridge enlarge or modify the state law being decided, hence it is procedural. State Substantive law and Federal procedural law Federal Rule must be Valid Federal Rule must be Applicable. Byrd v. Blue Ridge Electrical Cooperative

KEY POINT (Byrd) That a state law, substantive or procedural cannot interfere with or deprive a party of a constitutional right. (i.e. trial by jury) Multi part test (3) parts balancing test between fed and state policy interests. 1. Integral part of the state statute (procedural or substance) 2. Importance of Federal Interests balancing with a federal right. 3. Outcome determinative just because judge or jury decides it does not mean it presents a different approach. Jury v. judges.

Substance v. Procedure the state cannot alter the function of the Federal Rules of Civil Procedure. 2- Limitation on Outcome Determinative test (balance)

If the state law they are dealing with is a substantive law, that is a problem for the federal court. If the state rule were one of substance, he would have to go with Erie. So he says it is procedural. Countervailing Federal Considerations - The judge in Byrd simply limited guarantee by saying you have t ocompare the outcome determinative test with federal considerations (i.e. trial by jury). After Byrd Erie is expanded Guarantees outcome determinative test is almost ignored.


Now you balance federal uniformity of decisoin against the federal interest being protected.

Right to a jury trial under Federal Law You have one under 7th amendment. Next step Recap Pre-1938 Fed courts used state procedure and substantive law was Fed common law Post 1938 after Enabling act which produced FRCP and Erie reversed Byrd never dealt hwith FRCP, instead it sets forth formula, but its not great, it Balance federal policy against the outcome to see if it would be different in state and federal court. Byrd hard to apply so court had to make it work, add elements, try to change it, etc.
EFFECT ON SERVICE OF COMPLAINT AND SUMMONS Power of fed court in diversity needs two things. Complete diversity Amount in issue enough ($75,000.00).

Hanna v. Plumer Timing if motion is made and you dont raise SOL YOU HAVE 120 DAYS AFTER THE SERVICE OF PROCESS IS MADE IS UNDER FEDERAL RULES. This case is different from Guarantee and York FRCP 4(d)(1) Does the Federal Court have to employ the federal rule? conclusion is the FOLLOW THE FEDERAL RULE. Federal rule Enabling Act allow Federal rules to operate without abridging, modifying or

Enabling language at beginning in most statutes (state and Federal) introductory language is the Enabling launguage articulates the rationale for the rule.

Rules enabling act The act that justifies the rules you will use.

Court says Rules enabling act are constitutional and as long as they dont enlarge, modify or abridge the state law, they are constitutional. If they are valid, the federal court must use it! Exception scope you must assure that the scope of the federal rule is not as. Must see if the rule conflicts with what is constitutional. The SC has never decided that a federal rule was in conflict with a state rule. THIS CASE USES THE FEDERAL RULES OVER STATE HERE. IT SAYS WHAT WILL HAPPEN WHEN YOU HAVE FEDERAL RULES OF CIV PRO AND STATE RULES THAT FEDERAL WILL ALWAYS PREVAIL. Motions and responsive pleadings if you dont waive the defense, you lose the defense. There is no Statute of Limitations in Federal Law Most SOLs are procedural and not substantive.(except in limites situations) Diversity cases NO SOL. You only have application state statute of Limitations. Choice of law rules which affect the whole law (entire law of forum) tell you whos statute of Limitations to use.

Executor - law provides that the executor can be held accountable in the same ways that the original party to the suit would have been. Walker v. Armco Steel Federal rules say that the suit is commenced when the complaint is filed. Oklahoma said service is outside. Federal Rules and extension for service - Rule 4m says you can serve process within 120 days of filing A complaint or extension if you cant find them. Rule 3 DOES NOT DEAL WITH STATUTES OF LIMITATION. Because Rule 3 does not constitute a statute of limitations. The court finds that there is no direct conflict between federal rule and state rule Go to Byrd Case WHEN YOU DONT HAVE A COLLISION BETWEEN FED ANND STAE RIULE, THEN YOU ONLY LOOK AT the byrd balancing test.





RES JUDICATA rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and constitutes an absolute bar to a subsequent action involving the same cause of action (claim preclusion) Case cant be heard again without appeal.

DEFINITION: a party or one in privity cannot relitigate an issue which has been or could have been litigated already 4 Basic Elements: 1. there must e a final judgment 2. the judgment must be on the merits Case did not have to be litigated . Even if dismissal, still a judgement.

3. 4.

Same Claim - the claims must be the same in the 1st and 2nd suits

the parties in the 2nd action must be the same as in the 1st (or have been represented by a party in the 1st action) Or must be in PRIVITY Privies those who are not in the first trial, but whos interests were represented.(could be fiduciary) Virtual Representation: a person so identified in the interest with a party to the former litigation that he represents precisely the same legal right in respect to the subject matter involved closely aligned relationship between the parties because NO privity exists

First party represented second party in IDENTITY IN INTEREST

Beyond privity VR is not contractual. It is limited.

VR in government When the government is involved and being represented, the governments interests are not necessarily foreclosed by the private parties., i.e. Government is not precluded under Res Judicata where private party interests have sued another defendant.


COLLATERAL ESTOPPEL prior judgment between same parties on different cause of action is an estoppel as to those matters in issue or points controverted, on determination of which finding or verdict was rendered (issue preclusion)

4 Basic Elements:


the issue in the 2nd case must e the same as the issue in the 1st case the issue must have been actually litigated if an issue was litigated in a 1st action - relitigation ok unless issue was actually decided

NOT apply unless the decision in the 1st action was necessary to the Courts judgment When an issue of ultimate fact has been determined by a valid judgment, that issue cannot be again litigated between the same parties Collateral estoppel only precludes a part from relitigation issues that were actually litigated and decided in a prior action if an issue could have been raised in the 1st litigation but was not raised and decided, collateral estoppel will NOT bar the party from litigating the issue in a 2nd action Admissions plead in previous action or denial of MSJ or DV do NOT satisfy the actually litigated requirement Pursuant to Rule 8(c) collateral estoppel is an affirmative defense Difference between the 2 Rules: Res judicata bar relitigation of the same cause of action between the same parties where there is a prior judgment Collateral estoppel bars relitigation of a particular issue or determinative fact Once Judgment is entered claim said to be merged into the judgment entered (bars any relitigation of the claim extinguished and replaced by the final judgment) PRECLUSION AS BETWEEN THE SAME PARTIES 1. CLAIM PRECLUSION RES JUDICATA a. The rule is that a judgment for or against a plaintiff on a cause of action or claim precludes reassertion of that cause of action or claim again i. If the Plaintiff loses, it cannot be heard again. b. On the scope of cause of action the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction includes those claims or theories which could have been raised but were not

3. 4.


c. d.

All theories for recovery arising out of a single transaction or occurrence constitute a single claim for preclusion purposes ii. While Rule 18(a) says a party may join all claims BUT res judicata requires all claims arising out of the same transaction/occurrence be joined or barred by res judicata A court may raise the question of claim preclusion on its own motion for the sake of judicial economy If a party intervenes in a suit, that party must pursue its claim in that suit or be barred by claim preclusion later

If party unsatisfied with trial courts ruling on evidence, etc. must appeal ruling when final judgment issued CANNOT raise issue in subsequent proceeding because cause of action will be barred by res judicata because party had full and fair opportunity to litigate cause of action in 1st trial f. Affects claims that were made OR SHOULD HAVE BEEN MADE!! Example : If a driver runs a light and hits you, you have a negligence suit on the driver, suit on the car manufacturer if Products Liability, negligence on his mechanic. These are all different parties and different causes of action For multiple claims against the driver Different theories negligence per se, battery. If you only do negligence per se and lose, you cant bring another suit on the same facts. BECAUSE THE CLAIM SHOULD HAVE BEEN MADE!!! Keypoint When context of Res Judicata is a claim that is not made and then is the basis for the second litigation i.e. the cause of action you dont allege in initial complaint, but do raise in second complaint, The issue is if the claim should have been made. Different facts if the claim is different and arises out of different facts, then you may bring it and Res Judicata will not apply.


Practical Reality You put in the complaint all theories of liability so I dont get stuck with Res Judicata down the line. Defendant will say, too bad to later complaints on same facts if I try again. 2. ISSUE PRECLUSION COLLATERAL ESTOPPEL

a. b. c. d. e.

Ultimate Fact a distinction was drawn between ultimate facts and mediate facts. It is now generally accepted that the question is not whether the issue was ultimate or mediate, but whether it was treated as important and necessary to the decision in the first action whether it was foreseeable that the issue might come up in a different context, and whether the party had adequate incentive to litigate it for the first time Actually Litigated the difficult problem is presented by a consent judgment or a default judgment entered after defendant has made some kind of appearance the issue has been litigated but is has not been resolved by the court on the basis of conflicting submissions Such a judgment DOES result in claim preclusion but it is questionable whether it gives it issue preclusion Adversary Position of the Parties the issue is conclusive if the parties were antagonistic to each other on the issue Fair Opportunity to Litigate an issue is NOT precluded unless the proceeding in which it is determined has the characteristics of an adjudicative proceeding, including opportunity to offer direct and rebuttal evidence (such as on summary judgment proceedings where parties did not undertake intensive presentation of evidence on the issue

The Parties for purposes of both issue and claim preclusion, the general rule is that the party against whom preclusion is applied must have been the party to the prior litigation Law of the Case a. Related to but distinct from the rules of res judicata is the law of the case doctrine, which is that a determination of an issue of law at one state of a case become the law of the case and, absent a change in circumstances, will not be reexamined in a subsequent stage of the case


b. 4. 5.



c. Direct Estoppel a. Similar to the law of the case doctrine is the rule that a factual finding in one stage of a case ordinarily precludes relitigation of the issue in another stage of the case, a consequence sometimes called direct estoppel Judicial Estoppel a. A related doctrine under which a party is precluded from asserting inconsistent positions in successive litigations takes the form of precluding a litigation who was successful in the first litigation from asserting an inconsistent position in later litigation; if the litigant was unsuccessful in the earlier litigation, judicial estoppel will not prevent him from taking a later inconsistent position Compulsory Counterclaims a. Rule 13 and most state codes require a defendant to assert as counterclaims any claims he has arising out of the transaction sued on b. While the sanction for failure to assert a compulsory counterclaim is not provided in Rule 13 the general view is that the consequence is that an action may NOT be thereafter brought on the claim Administrative Agency Determination If the proceedings approximate court litigation in affording the parties a full and fair opportunity to litigation they are generally treated as equivalent to court litigation for the purposes of res judicata

Common application where the issue has once been considered in an appeal and then, following remand and further proceedings in the lower court, comes up again in a subsequent appeal


Court says issue preclusion does not violate 7th Amendment because full and fair opportunity to litigate even though previous case before judge PRECLUSION AS AGAINST OTHER PARTIES 1. A judgment may have preclusive effects not only between the parties to the original proceeding, but also between such party and one who was not a party to the first action 2. The Mutuality Rule Depends on the Jurisdiction a. In a Mutuality Jurisdiction - estoppel by judgment should apply only when it can apply mutually; one party should not be bound by a judgment, unless if the judgment had gone the other way, the opposing party would have been bound i. Exceptions privity with the litigating party (a) If a person was in privity with the winner, he could take advantage of the winners victory (b) If a person was in privity with the loser, he was bound even though he never had his day in court b. In a Non-Mutuality Jurisdiction allowing a new party to invoke collateral estoppel against a party who litigated and lost in a prior action i. Generally allows defensive collateral estoppel because defendant using it against plaintiff who has already litigated an issue ii. Party attempting to use non-mutual collateral estoppel bears the burden of proving that the other party against whom it will be used had a full and fair opportunity to litigate the matter 3. 2 Types of Collateral Estoppel a. Offensive Collateral Estoppel i. Used by plaintiff ii. Plaintiff seeks to foreclose defendant from litigating an issue the defendant has previously litigated unsuccessfully in action with another party iii. NEW PLAINTIFF GOING AFTER OLD DEFENDANT WHO HAS PREVIOUSLY LOST. b. Defensive Collateral Estoppel i. Used by defendant ii. Defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant iii. More acceptable because plaintiff has already had a full and fair opportunity to litigate the facts at issue PLAINTIFF LOST IN OLD CASE, NOW SUES 2ND DEFENDANT WHO USES D.C.E. TO STOP THE PLAINTIFF WHO PREVIOUSLY LOST. c. For both the person against whom it is used was a party in the prior litigation d. Use Discretionary by Trial Court examines the following i. How serious was defense in previous suit - Value of previous case was not worth defending ii. Defendant should not always be bound by previous judgment because must have full and fair opportunity to litigate e. General Rule that person are not bound by a judgment unless they are parties to the litigation - Person does not become bound by merely having an opportunity to intervene; the person must actually intervene to become a party and be bound i. There are limited circumstances in which a nonparty may be bound by a judgment if the nonpartys interests are adequately represented with someone with the same interests who is a party (a) virtual representation broadening the concept of privity persons so identified in interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved closely aligned relationship between the parties because no privity exists Preclusion against United States a. The US and other governments are generally subject to the usual rules of claim preclusion under the doctrine of res judicata b. The US is also generally subject to issue preclusion where the party seeking to invoke collateral estoppel was a party to the prior litigation i. However, Supreme Court has held that nonmutual collateral estoppel should not be available against the United States When a Defendant previously lost and wants to go after a new possible plaintiff, this will not fit into C.E.





Civil Rights Violation - If a party to a lawsuit is a state government or state government official CAN IT BE FILED IN FEDERAL COURT IT DEPENDS ON THE CAUSE OF ACTION. (I.e. state official punched you) Its a TORT (Can do it in federal court under diversity if you are from another state) and also, VIOLATION OF CIVIL RIGHTS 42 USC 1983





Why ? fairness & commerce protection Judgements; From other states Federal Government Other countries minimum due process principles apply as well as treaties in effect. We use Comity not exactly the same as full faith and credit Collateral Attack to attack subject matter jurisdiciton or personal jurisdiction. Would not work here because court has SMJ and Presence for PJ. A. INTERSTATE RECOGNITION OF JUDGMENTS 1. Recognition of Judgments Called Supplemental Proceeding a. Full Faith and Credit Clause of the Constitution (Art IV Sec. 1) a judgment of one state must be recognized by other states b. Mandates that a state must vie at least as much effect to the judgment of the rendering state as would the rendering state itself c. Not all judgments are entitled to full faith and credit i. If not final in the rendering state ii. Judgment based on faulty jurisdiction, venue or parties d. Erroneous judgment on the merits are also entitled to full faith and credit the only avenue of relief for the losing party is to appeal the erroneous judgment through the court system of the rendering state e. Where there are inconsistent judgments, the later judgment is entitled to full faith and credit, not the earlier one 2. Enforcement of Judgments a. If the enforcing state has not adopted the Uniform Enforcement of Judgments the Judgment Creditor must domesticate the judgment by filing same in the court and serving process on the Judgment Debtor in that state to notify


Fauntleroy v. Lum (seminal case on issue of domestication of judgment) a. Issue: is the judgment of a sister states court entitled to full faith and credit when it is based upon a mistake of law of the present state where proper subject matter and person jurisdiction existed? YES (judgment enforceable i. The judgment of MO was conclusive as to the cause of action even though Judgment was based upon a mistake of law


ii. should have appealed judgment in MO cannot make collateral attack FEDERAL - STATE RECOGNITION OF JUDGMENTS 1. Federal State Recognition a. Full Faith and Credit Clause of Constitution applies only to the recognition of state court judgments by courts of sister states b. 28 USC 1738 prescribes the binding effect of state court judgments in the federal court i. Federal Court must accept state court judgment ii. Federal Court must use res judicata law of the state (a) Exception: to res judicata Claim Preclusion if state court was prohibited from hearing cause because of lack of subject matter jurisdiction Issue Preclusion where federal statute expressly or impliedly repeals preclusive effect 2. Marrese v. American Academy of Orthopaedic Surgeons a. Issue: does a state court judgment have a preclusive effect on a federal antitrust claim that could not have been raised in the state proceeding? NO i. To determine if preclusion - 1738 requires court to do the following: (a) 1
- a federal court to look first to state preclusion law in determining the preclusive effects of a state court judgment, even when a claim is within the exclusive jurisdiction of the federal courts
nd st

does federal statute bar relitigation of claim in federal court Parsons Steel, Inc. v. First Alabama Bank a. Issue: where a state courts judgment differs from a prior federal courts judgment in essentially the same case, must the federal courts give the state court judgment the same preclusive effect is would have had in another court of the same state? YES i. The state court determined that the earlier federal court judgment did not bar the state action - Trial court must use that to determine if injunction proper and trail court was wrong The Supreme court has not fully decided the effect of preclusion where the original cause of action could not have been brought in the state court. KEYPOINT - P could have gone to federal court with federal and state claim together =SUPPLEMENTAL JURISDICTION OR PENDENT JURISDICTION common nucleus of operative facts.(Title 28 USC 1367 supplemental jurisdiction) so both claims could have been brought in Federal court. (pendent and anciallary are two terms of art for commonlaw case matters that are now rendered statutory under 1367) Pendent State law claim now allowed in Federal court when arising out of common nucleus. Ancilliary KEYPOINT - You cannot bring a federal cause of action in state court!!!

(b) 2

Exception, federal statutes that you can litigate in state court - i.e. violation of Civil rights claims can be brought in state court. (1983 claims). If they had litigated that state law claim in another state, there would have been motion to dismiss under Art 4 sec 1. Fed must look to the state courts law due to 1738 statute says that Fed must look to the state courts laws of preclusion.


Exception is if Fed has statute on its face that says that 1738 does not apply. If preclusive effect of a state law says that case would be barred in Fed court, then fed cant hear it. You cant bring it in state court, because you cant but then you lose in state court and the preclusive effect is such that you cant now litigate the claim or issue in fed court.!!! That is not fair. Exception if you had a fed statute that said otherwise.

Generally State preclusion rules say that they wont apply to a situation where a plaintiff is unable to rely on a cause of action because the state court lacks subject matter jurisdiction. State can t litigate and has no subject matter jurisdiction because the federal statute here said the exclusive subject matter jurisdiction is in the federal court. BIG KEY POINT - In a 1983 claim as opposed to Sherman anti trust act, you can hear a federal claim in state court. It would be describe the state court as having subject matter jurisdiction. If here, the P does not plead 1983 and later sought to plead it in federal court, he could not have brought it because it would apply the state preclusion law that the case would be precluded from hearing it. The federal court would have to look at the state laws of preclusion and if they say precluded, then it cant be heard BECAUSE THEY COULD HAVE BROUGHT IT UP. PARTIES THE SAME, COMMON ISSUE OF NUCLEUS FACTS, ETC. If the P could have litigated it and did not , but did plead an analagous claim is now out of luck. . BUT WHEN THE CLAIM COULD NOT HAVE BEEN BROUGHT ANYWAY IN STATE COURT, THEN IT CAN BE BROUGHT IN FEDERAL COURT. And the states PRECLUSIVE LAWS CANT PRECLUDE IT IN FEDERAL COURT.

2 step approach in claim preclusion in federal court. 1. Go to state rules of preclusion a) If the state rules show preclusion then b) Go to the federal statutory exception. i. C). If no exception, then you have the undecided question of the supreme court. i.e. if state preclusion law says tough luck and is barred in subsequent federal case and the fed statute has no exception, and it was a claim that could not have brought it in fed court anyway, what do you do and the fed statute does not have a statute exception/.
Is there an implied partial repeal of 1738? If that state court does not have competence, then the case may be brought in Federal court is one possible way. THEREFORE ANTI-INJUNCITN ACT (2283)TO LIMIT FED ACTION OVER STATE COURT ACTIONS 28 USC 2283 Stay of state court proceedings Fed court may not grant an injunction to stay proceddings in state court Exception 1. as expressly authorized by congress 2. Or where necessary in aiding of jurisdiction 3. Or to protect or effectuate its judgements.(subsequent state court judgement rendering the federal The rationale is that the Federal court cant just go in an d overturn state judgements THIS IS A LIMIT OF FED TO ENJOIN STATE PROCEEDINGS. The remedy for the party who won in fed court and now finds himself in state court is not to go back to federal court, but up on appeal in state appeals court to challenge the preclusion order. KEYPOINT YOU CAN SIMULTANEOUSLY FILE IN STATE AND FEDERAL COURT. Standing Valley Forge Christian College v. Americans United for Separation of Church and State Government owned land and sold it to a religious college, who ended up paying nothing due to tax credits. Ps are taxpayers who sue in Fed court. Subject Matter Jurisdiction. Under first amendment, separation of church and state. D makes motion for summary judgement. To decide standing Constitutional requirements:: 1. Must have an Injury in fact Concrete & Palpable. 2. Must be redressable injury. must be an injury to the Plaintiff., not someone else. (Art III). Prudential requirements That this suit makes sense Taxpayer claims When claims are brought to challenge government action when you have consequences. If congress said that it would have to come under spending clause of the constitution and this case failed because HEW made claim and not congress. If congress violates spending power by doing this, then you can sue for a violation But since it is an executive depts. Agency that did it, you cant sue. Flast test 772 for congress Who has standing Who is a party? 1. Case in contoversy 2. You were injured. IN fact, concrete, palpable (property or person) to self and not another.

court ruling invalid and therefore have an effect on the federal power.




GENERALLY 1. Abatement or stay of pending state action a. The rules of res judicata, collateral estoppel and compulsory counterclaim are retrospective b. Another device is the plea to abate or the motion to stay a pending action on the ground that there is also pending another action between the same parties concerning the same subject matter the consequence of sustaining a plea in abatement s ordinarily the dismissal of the second action c. The plea in abatement will be sustained when it appears that if the first action were it to go to judgment, would be res judicata of the second and only when the risk action is the same jurisdiction and involves the same alignment of the parties as the second 2. Abatement or stay in federal Court a. The decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the factors as they apply to the case = balancing test b. The state decision will be res judicata if rendered before the federal decision c. Although abatement is not mentioned in the federal rules, the defense of pendency of another action should be raised by answer, not motion to dismiss, although a motion to say is a proper motion independent of Rule 12(b) SECTION 2 JOINDER OF CLAIMS X. JOINDER OF CLAIMS AND REMEDIES Rule 18 A. Rule 18 (a) party asserting an original claim, counterclaim, cross-claim and third party claim may join, either as independent or alternative claims, as many claims as the party has against the opposing party B. Rule 18 (b) party may join 2 claims where one of the remedies only applicable after prosecution of one of the claims 1. Example: relief request to set aside a fraudulent transfer and money damages as a result of the transfer C. No common transaction or occurrence requirement as with Rule 20 - For example can sue 1 defendant for negligence and assault in one complaint XI . COUNTERCLAIMS AND CROSS-CLAIMS Rule 13


Major purpose of 3 rd party complaint is to bring some one in to absorb, indemnify all or part of defendants load. Rule 13(a) Compulsory Counterclaims


Counterclaim required against any opposing party it if arises out of the transaction or occurrence that is the subject matter of the opposing partys claims AND 2. Does not require the presence of third parties of whom the court cannot acquire jurisdiction 3. Exceptions: a. If at the time the action was commenced the claim was the subject of another pending action OR b. The opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim Counterclaim Defendant claims against plaintiff This counterclaim was compulsory because It arises out of the same cause of action There is a close and logical relationship IF YOU DONT BRING UP A COMPULSORY, YOU CANT DO IT EVER AGAIN. Rule 13(b) Permissive Counterclaim 1. May state as a counterclaim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing partys claim Rule 13(f) Omitted Counterclaim 1. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment Rule 13(g) Cross-Claim against Co-Party


C. D.


A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable t the cross-claimant for all or party of a claim asserted in the action against the cross-claimant

Rule 13 (h) Joinder of Additional Parties 1. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rule 19 or Rule 20. SECTION 3 JOINDER OF PARTIES XII. PERMISSIVE JOINDER Rule 20



C. D.

Rule 20(a) all person may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, and if any question of law or fact common to all these person will arise in the action 1. The request for relief of the plaintiffs need not be the same one plaintiff can request one type of relief and the other plaintiff can request another type of relief both moving against the same defendant where cause arose out of same transaction or occurrence The Scope of Permissive Joinder in diversity cases 1. Joinder of Plaintiffs - each plaintiff joined must be of diverse citizenship from all defendants and must satisfy the applicable venue requirements 2. Joinder of Defendants venue & diversity requirements must be met for each defendant as in joinder of plaintiffs Rationale of Party Joinder efficiency and consistency to be gained from litigating the same facts in a single action Plaintiff may plead one version of the facts against a defendant and another version against another defendant as long as there is a reason why plaintiff could not known which version is true and cause of action arose out of the same transaction or occurrence


E. F. G. H.

1. Rule 20(a) allows joinder if relief is sought against the defendants jointly, severally, or in the alternative Although a defendant is joined as a defendant along with others, defendant may not rely on the allegations made against the other defendants in a separate count Defendant demurrer must be assessed only by reference to the court in which the defendant was named The permissive joinder of defendants in cases like this one eliminates the risk inherent in separate actions against the defendants that there might be inconsistent findings of fact, both adverse to the plaintiff



Rule 19(a) a person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if: (a & b are Test for Necessary for Joinder Dale said memorize) 1. In the persons absence complete relief cannot be accorded among those already parties OR 2. The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the persons absence may impair the persons ability to protect the interest or leave any of the persons already parties subject to a substantial risk of double, inconsistent obligations by reason of the claimed interest Rule 19(b) if the person cannot be made a party, the court shall determine whether in equity and good conscience the action should be dismissed, the absent person being indispensable Rule 19(c) a pleading asserting a claim for relief shall state the names, if known of the pleader, of any persons as proscribed in (a) who are not joined and the reasons why they are not joined If the party is necessary and indispensable, then the Court is required to dismiss TEST FOR INDISPENSABLE (Dale said memorize) 1. To what extent a judgment rendered in the persons absence might be prejudicial to the persons already parties 2. The extent to which, by protective provisions of the judgment, by the shaping of relief, or other measure, the prejudice can be lessened or avoided 3. Whether a judgment rendered in the persons absence will be adequate 4. Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder Under 1367 (Supplemental Jurisdiction)

B. C. D.



1. 2.

Plaintiff cannot join non-diverse party because cannot destroy diversity

Defendant can join non-diverse party under ancillary jurisdiction a. If no diversity plaintiff cannot assert a claim against joined party Application of Rule 19 based on actual pleadings filed not on proposed, but not yet plead third-party claims CROSSCLAIMS (Rule 13g) Rule 13(g) All cross-claims are within the Supplemental Jurisdiction (1367) of the federal courts because arises out of the transaction or occurrence that is the subject matter of either the original action or a counterclaim a. Even if claim lacks independent basis for federal court jurisdiction because claim against party already under jurisdiction of the court b. Crossclaim between two already named defendants IMPLEADING (Rule 14 Third Parties) Rule 14 (a) When Defendant may bring in 3rd Party 1. The Defendant may bring in a person, not yet a party to the suit who may be liable to Defendant, for all or part of any recovery the Plaintiff obtains on the main claim 2. Defendant NOT allowed to implead party and claim that this party and not defendant is the one liable to the Plaintiff plaintiff master of his compliant and cant be directed by defendant who to sue




3. B.

Claim against 3rd Party MUST arise out of the same transaction or occurrence as the main claim

Rule 14 (b) When Plaintiff may bring in 3rd Party 1. When counterclaim asserted against plaintiff plaintiff may implead any party following the same rules as (a) Impleaded claim treated like an original suit for pleading, service, and other purpose

1. 2. 3. D.

3rd Party Compliant must comply with all pleading requirements 3rd Party Defendant may file counterclaim against Third Party Plaintiff and further implead parties under Rule 14 with regard to 3rd Party Complaint ONLY 3rd Party Defendant may assert any claim/defense he has against the Plaintiff and Plaintiff may assert any claim/defense he has against 3rd Party Defendant (AS LONG AS Diverse) a. If the impleaded party files a cross-claim or counterclaim then the jurisdiction statute requires that the action arise out of the same transaction or facts as the plaintiffs claims

Citizenship of 3rd Party irrelevant for purposes of diversity between defendant and 3rd Party because of Ancillary Jurisdiction 1367 (Court lacks independent basis for federal court jurisdiction but claim allowed) 1. A third-party claim is deemed supplemental to the main claim and has no effect on jurisdiction and venue requirement - Independent ground of federal jurisdiction need not be established

2. 3.

However, if plaintiffs claim dismissed for lack of subject matter jurisdiction (because of lack of diversity) then 3rd Party action cannot go forward because court must have jurisdiction over original parties to maintain the action If federal court dismisses original action on merits then 3rd party claim allowed to proceed because court still maintained subject matter jurisdiction over original action


If 3rd Party NOT diverse from plaintiff plaintiff may not maintain any claim or action against the 3rd Party INTERVENTION Rule 24 2 Types of Intervention


1. B. C. D. E. F.




Permissive Intervention intervenor need only show that is claim in intervention involved a question of law or fact in common with the main action and depends on the discretion of the trial court 2. Intervention of right matter of right and generally does not depend on the trial courts permission 2 Elements that must be proven to Intervene 1. Rights Affected 2. Inadequate Representation May also intervene if Statute provides for intervention by third-parties Intervenor takes the proceedings as he finds them Intervention accomplished by party filing Motion Atlantis Development Corp. v. US 1. Issue: Should intervention be allowed, if as a practical matter, the lawsuit would be dispositive of the same issue that would arise in the intervenors dispute with one of the parties, even if the suit would have no res judicata effect on the intervenor? YES a. Permissive intervention is proper when an applicants claim or defense and the main action have a question of law or fact in common Bustop v. Superior Court 1. Issue: may individuals intervene in public question lawsuits if they will be affected by the outcome? YES a. An alternative to intervention appear amicus curiae however they will lack procedural rights that are afforded to a party INTERPLEADER 1335 Federal Interpleader Statute 1. party with possession of the claim which might be claimed by adverse and independent parties files action in federal court 2. Only requires 2 or more adverse claimants of diverse citizenship NOT complete diversity 3. Rule 22 Interpleader a. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability b. Claims do not have to have common origin or be identical only required to be adverse and independent of each other c. Requires complete diversity because federal courts jurisdiction based solely on diversity State Farm Fire & Casualty Co. v. Tashire 1. Issue: may a district court, through interpleader jurisdiction, compel all of the tort plaintiff, even those whose claims are not against the insured and could not be satisfied out of the insurance proceeds to litigate the case in a single forum of the insurance companys choosing? NO a. When the stakeholder initiates an interpleader action, the adverse claimants can and do, file cross-claims against each other to obtain a judicial determination of their respective rights in the fund or property

Stakeholder - Person who gives up the money to interpleader - Give the money to the court. Stakeholder wants to minimize liability of being liable multiple times if there is only so much involved. Interpleader Diversity - In interpleader, you dont need complete diversity. Only minimum
1332 Generic Diversity statute must be complete diversity can have all people on one side from all over as long as the other side guy is from the last state 1335 Interpleader minimal diversity everyone could be a p or d from California as long as you have one person on either side from somewhere other than California. Purpose is to allow all possible people claim in so as to ensure the prevention of other claims later. Purpose is to avoid running all over the country The US supreme court says 1335 that this is a particular tool for a particular setting under particular circumstances. When a party has something in it s possession and that stuff is in dispute and simply wants to get rid of it to avoid future liability.

Minimum for Interpleader - Minimum necessary here is $500.00 Not used as a bill of peace . Federal Rule 22 - is another tool. YOU NEED COMPLETE DIVERSITY TO USE THIS. You cant use 22 unless you have a 1332 case or a federal question case. TY FOR frcp 22 1332 Also, you must have $50,000.00 for FRCP 22 as opposed to $500.00 Fed case $75,000.00 Fed interpleader $500.00 You can interplead for $500.00 but couldnt sue for it. FRCP22 is used in a procedure where there is an independent basis for the case 1332 is its own basis Interpleader Device when two people claim the same thing owned by a 3rd party where the 3rd party has no interest in the property, so it has the court let the other two fight over it. 1.. comes up in lawsuit Interpleader action 2. Federal Statute

Enjoining Class - KEYPOINT - Absence of class, there is no rule that allows the federal judge to notify potential plaintiffs NO! If it were a class , notification is only after class is certified., Must have certification first, i.e. Judges ability to notify perspective Plaintiff None, it sits with Plaintiff. This is not pleaded as a class action. General rule of class actions and mass-torts NOT ALLOWED! If it were a class action, this notification would have been proper., If class action, look at RULE 23. Then notification system. (b3) damage action. They have the ability to opt out of this class.(b3). None of that occurs here.



Reasons to be allowed intervention. 1. Would be effected by outcome, i.e. aggrieved party. 2. Interest in litigation 3. If that interest is being properly litigated Must take the case as it is (as they find it) practical issue. Florida is closer to California Rule

Intervention as a right. 2 types of intervention 1. By right (can be appealed.) 2. Permissive (cannot be appealed) discretionary of court. (two types) a. Statutory b. If your affected Difference between two is imprecise and you must build facts that allow you to match it. Harm is a way of looking at it. Rule 24


SUBSTITUTION OF PARTIES Substitution of parties is appropriate where a party to the action becomes incapacitated to participate in the action, in the case of death or incompetency, corporation dissolution or termination or in the case where public official is sued and then leaves office CLASS SUITS Rule 23 INTRODUCTION 1. Rule 23(a) must prove 4 elements a. Class so numerous that joinder impracticable b. Question of common law or fact common to the class. c. Claims or defenses of the representative parties are typical of claims or defenses of class. d. Adequate representation can be afforded to entire class. Fair & adequate representation. 2. Rule 23(b)(1) risk of different standards/inconsistent if tried separately (very rare) 3. Rule 23(b)(2) injunctive relief or declaratory judgment a. Cant opt out of this type of class because relief sought to the benefit of all included in class 4. Rule 23(b)(3) demanding money damages a. Can opt out b. Individual notice required best notice practicable 5. Only principle plaintiff must meet jurisdictional requirements of federal court do not have to prove jurisdiction met for rest of class a. International Shoe requirements of minimum contacts. do not apply





DISCLOSURE OF THE EVIDENCE GENERALLY 1. Discovery Rules 26 37 2. Rule 26 General purpose is guiding language for scope of discovery 3. Discovery does not take place until Issue is Joined means after Complaint and Answer is filed and issues of the case have been determines MECHANICS OF DISCOVERY 1. Rule 26 General Guidelines for Discovery a. Rule 26(a)(1) Provides that parties have a duty to deliver certain material to the other side without having been specifically asked to do so such as i. Names and addresses of witnesses ii. Copies or descriptions by of documents and other things relevant to disputed facts iii. Computation of any category of damages iv. Any insurance agreement out of which a judgment may be paid b. Rule 26(b)(1) Provides that a party may obtain discovery concerning any matter not privileged which is relevant to the subject matter involved in the pending action c. Rule 26(f) Provides that the parties must meet as soon as practicable to discuss claims and defenses and prepare discovery plan d. Expert Witnesses Rule 26(b)(4)(A) i. Any expert who will present evidence at trial must be revealed without a specific request of the other side ii. The expert must sign and prepare a report containing a complete statement of all opinions to be expressed and the basis and reasons therefore iii. The date or other information considered by the expert in forming the opinion iv. Regarding retained or specially employed experts These are experts who have been consulted but will not be called at trial Information or opinions by such experts is discoverable only if there are exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means This protects a party form disclosure of unfavorable information or opinions held by an expert who the party had thought useful Also prevents a party from locking up every expert in a narrow specialty but putting all of them on retainer e. Material is discoverable even if not admissible at trial


Depositions Rule 30 & 31 a. Formal questioning of witness under oath


b. c. d. e. f.

Can be oral (30) or written (31) Can be audio, video, stenographic Limited to 10 depositions total without leave of court Notice & Subpoena required for Non-Party Notice only for party


Interrogatories Rule 33 a. Written questions propounded to an opposing party seeking information relevant to the issues in dispute b. Must be signed by party answering the questions under oath Not the attorney for party or that person will not be bound by the statement c. Limited to 25 questions without leave of court d. Can only be sent to party to action not witnesses or other non-parties e. Objecting party bears burden of proving that request is not relevant or privileged Production of Documents and Things Rule 34 a. Request for documents and other things such entry upon land and inspections b. Presumption that any document that might fit under 26(b0(1) must be produced c. Party only required to provide documents actually request usually written very broadly d. Responding party should at least indicate how records are organized, what records respond to what requests, and any other information necessary to locate requested items e. Can be sent to both parties and non-parties f. If Request to non-party must use Subpoena g. Objecting party bears burden of proving that request is not relevant or privileged Physical and Mental Examinations Rule 35 a. Test for allowing Exam: i. Physical or mental state of party is in issue, an opposing party may required an examination by a qualified expert ii. Good showing by adverse party specify facts to justify discovery and relevant to subject matter of action b. Must be either by court order or agreement of the parties Requests For Admissions Rule 36 a. A party may request that an opposing party admit that certain facts are true or that certain documents are genuine b. If Response not filed within timely manner then Request is deemed to be admitted by the opposing party c. Note that the complaint also serves as a request for admission, since any allegation not denied in the answer is deemed admitted






Objecting to Discovery or Demanding Completion, Sanctions Rule 37 a. Objection or demand must be signed by attorney per Rules b. If party doesnt want to answer, etc can file Motion For Protective Order to limit the scope c. of the questions or completely limit discovery d. If moving party wants discovery completed can filed Motion To Compel requesting the court force the other party to comply e. Rule 37(b)(2) - Sanctions available to Court for party not complying with discovery requests i. Strike pleadings ii. Stay proceedings iii. Dismiss action iv. Default judgment v. Movants request will be granted evidence will be deemed admitted or not admitted vi. Contempt vii. Attorneys fees f. Rule 11 doesnt apply only for pleadings and motions other than discovery THE ATTORNEY - CLIENT AND WORK PRODUCT PRIVILEGES 1. Rationale behind attorney-client privilege encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of the law and administration of justice 2. The attorney-client privilege applies only if: a. The asserted holder of the privilege is or sought to become a client; b. The person to whom the communication was made is a member of the bar or his subordinate and in connection with the communication is acting as a lawyer; c. The communication relates to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either an opinion on the law or legal services or assistance in some legal proceeding and not for the purpose of committing a crime or tort; and d. The privilege has been claim and not waived by the client 3. Attorney-client privilege extends to corporation and officers if: i. Person in a position to control or make substantial part in decision about any action which corporation will take ii. mid/low level involved in corporation litigation by actions within the scope of their employment 4. Work product must be the work product of the attorney if the work was not commissioned by an attorney but by someone else prior to the time of the instigation of the litigation the attorney cannot y retroactive adoption, convert the independent work of another already perform work into his own 5. If an expert uses the work product of any attorney for preparation of his own testimony the work product may be discourage by opposing party for cross-examination of the expert a. Why because attorney waived privilege by showing product to the expert and the expert used the product to or incorporated it into his testimony 6. Implied Waiver: Failure to claim privilege as to a privilege document generally constitutes a waiver of the privilege not only as to that document but as to the subject as well 7. 2 Types of Work-Product a. Fact-Based Work Product Low level of protection (Such as witnesses statements) b. Mental Process Product High level of protection (Mental impressions of lawyers evaluative in nature)






Exception to work-product privilege Test Rule 26(b)(3) i. Necessity ii. Undue Hardship iii. High showing by party requesting burden on moving party 9. Even if meet exception mental impressions of attorney will still be protected 10. Hickman v. Taylor a. Issue: are statements by known and available witnesses, obtained by an attorney in preparation of trial discoverable? NO i. Statements sought are not within attorney-client privilege so not protected by that privilege that would be written or oral communications between attorney and client ii. Statements are the written and mental impressions of the attorney in preparation of trial this makes them workproduct iii. Moving party will suffer undue hardship without information and not discoverable otherwise iv. Still will protect attorneys mental impressions and personal notes if meet burden THE PRETRIAL CONFERENCE Rule 16 1. Contents: a. List of evidence b. Witnesses both direct and rebuttal c. Factual and legal issues d. Uncontroverted facts and legal issues stipulated to by parties 2. Requires parties to articulate what evidence will be used at trial 3. If legal or factual issue not included in the pre-trial order then theory cannot be raised at trial


Dismissal for failure to state a claim - Rule 12(b)(6) a. Filed before pleadings complete b. Provides mechanism under which the defendant is able to test the sufficiently of the plaintiffs allegations as a matter of law c. The truth of the plaintiffs allegations is assumed for the purpose of the motion and the question asked is whether a cause of action is state on those facts i. Only question presented to the court is whether the complaint itself presents a legally sufficient cause of action (a) Court does not examine outside evidence regarding facts court assumes for the purpose of the motion that plaintiff will be able to prove all facts (b) Complaint liberally construed in favor of saving the complaint (c) The motion addresses only a purely legal question d. Only available to party in the position of the defendant e. Dismissal based on merits and has res judicata effect f. If dismissed dismissal on the merits and will have res judicata effect Motion For Judgment on the pleadings - Rule 12(c) a. Filed after pleadings complete b. Challenges legal sufficient of a partys factual allegations or legal contentions in the same manner as a motion to dismiss for failure to state a claim c. Dismissal based on merits and has res judicata effect Legal standard for 12(b)(6) and 12(c) are the same and if partys submit evidence to support Motion will be treated as Summary Judgment Dismissal for lack of prosecution Rule 41(b) a. Dismissed for failure of the plaintiff to be consistent in course of conduct in pursuit of suit b. Unless the court specifies otherwise in its order of dismissal, the dismissal operates as an adjudication on the merits with res judicata effect



4. 5.

B. C.

Voluntary dismissal Rule 41(a) a. A plaintiff may voluntarily dismiss her suit as of right simply by filing a notice of dismissal so long as she does so before defendant has answered or moved for summary judgment b. The first dismissal by notice without prejudice but the second is with prejudice c. Dismissal based on 12(b) (1-3) is not dismissal on merits and plaintiff is not precluded from refilling action d. If defendant moves to dismiss under 12(b)(6) and plaintiff filed voluntary dismissal before hearing or answer -plaintiff may avoid the res judicata consequence of an adverse ruling by taking a voluntary dismissal under Rule 41(a) e. If defendant has filed counterclaim, the court may not dismiss the counterclaim under Rule 41(a) unless there is an independent basis for jurisdiction that will allow the counterclaim to remain pending after dismissal of plaintiffs suit or unless defendant is willing to allow dismissal of the claim DEFAULT JUDGMENTS Rule 54 1. Party can move for default judgment after length of time to Answer has expired 2. Relief granted to plaintiff by default judgment cant exceed the demand in the complaint RELIEF FROM JUDGMENTS AND ORDERS Rule 60 1. Filed after judgment against party filed in trial court 2. Can be granted only if prove one of the following i. Mistake, inadvertence, surprise or neglect ii. Newly discovered evidence iii. Fraud, misrepresentation or other misconduct iv. The judgment is void v. Any other reason 3. Relief can be granted for 1-3 only within 1 year



4. Regarding 4-6 must be made within reasonable time SUMMARY JUDGMENT Rule 56 1. No genuine issue of material fact and moving party is entitled to judgment as a matter of law 2. Either side can move but not sooner than 20 days after action commenced or after service of a Motion by the other side 3. Based on notion of fairness to give non-moving party every opportunity to have their day in court 4. Moving party doesnt always have to disprove plaintiffs claim can show that plaintiff cant prove claim 5. If filed before or during discovery non-moving party can file affidavit and request continuance to complete discovery to support objection to summary judgment 6. Motion viewed in light most favorable to non-moving party 7. Rule 56(a) doesnt require any evidence or affidavit to be presented by moving party can simply file motion 8. Non-moving party not required to put forth any evidence can stand on complaint if so desires

Demurrer admits facts but says they are insufficient. Guardian ad Litem temporary representation of minor in court. parents, guardian, friend

Standard of Review by Trial Court : a. Burden of Persuasion on moving party (notwithstanding that this party may not have burden for the purpose of trial) b. Burden of Production on moving party shifts to non-moving party if moving party proves allegations in Motion c. Standard of review whether a reasonably minded jury could return a verdict for the plaintiff on the evidence presented and standard same as would be required for plaintiff at trial i. Same as review standard for Judgment As Matter Of Law E. MOTION FOR JUDGMENT AS A MATTER OF LAW Rule 50 1. Moving party claiming no legally sufficient evidentiary basis for a reasonable jury to find for the opposing party and Judge concludes that no factual dispute 2. Occurs during course of trial after presentation of opposing partys case other party can move for court to enter judgment 3. In state court called Directed Verdict 4. Standard same as for summary judgment reasonably minded jury could only find for moving party based on evidence presented Consent Decree an agreed upon order of the court.


Panel of Multi-district Litigation Rules governing mass torts. In federal system it is a means to consolidate to go before one judge. Lawsuit arising out of two crashes. P did not want court to contact potential plaintiffs. Interlocutory Appeal P did not get it, so they filed a writ of mandamus

Need to know In federal system 2 types of appeals Appeals from final orders Appeals from interlocutory appeals (1292) Need permission of trial court and appeals court. You can appeal as a matter of right for appealing from final order. You dont have a matter of right to appeal from an interlocutory appeal. So all that is available is a writ of mandamus to mandate a federal court to act.

FIDUCIARY CAPACITY Must be there in a fiduciary capacity not just as representative. If parents were in suit and not just representative. If they were fiduciary then counterclaim.


HOW DO YOU BRING A STATE LAW CLAIM IN FEDERAL COURT ONE WAY IS DIVERSITY AND THE OTHER WAY IS PENDENT JURISDICTION, NOW KNOWN AS SUPPLEMENTAL JURISDICTION WHERE THERE IS A FEDERAL CAUSE OF ACTION SECTION 1331 The district court shall have.laws mean statutes or federal causes of action. TAKES YOU UP TO 1367 1367 SUPPLEMENTAL JURISDICTION Fed now has statutory authority to hear state law claims in federal court. The claims must be related and ARISING OUT OF A COMMON NUCLEUS OF OPERATIVE FACTS!!!! (UNITED MINE WORKERS V. GIBBS). 1. Diversity 2. 1331 up to 1367 Supplement jurisdiction
MOTION TO DISMISS in order to demurer in federal court.

Joinder The party can make out as many claims against the party as the plaintiff has. Counter claim when D makes a claim against the Plaintiff

Answer contains defenses Affirmative Defenses Answer may contain Counterclaim It is the same as the complaint it is the same as the complaint against the Defendant. i.e. ANSWER & COUNTERCLAIM in title. Between two already named defendants Getting new people into the suit To claim against another party



Defendant brings in a 3rd party the same way.

US for the use and Benefit of DAgostino Excavators Inc. v. Heyward Robinson for the use of because government has an interest in this. means that private parties can sue on behalf of the U.S. P sues under Miller act to get into the Federal court. Miller Act says caption must read that way. P sues D for breach of K. D counterclaims for breach on a related private job. P files a reply = Not a denial, it is another COUNTERCLAIM. COUNTERCLAIM TO A COUNTERCLAIM. REPLY - FRCP A counterclaim to a counterclaim is a REPLY. P Eventually won. P never went after D on both counts. Could P have YES, RULE 18 -Under FRCP 18, the P could have, but did not. Maybe because parties are not diverse or for any other reason of federal question. DAgastinos lawyers were thinking that they had no right to bring it. MAYBE P THOUGHT THERE WAS NO SUPPLEMENTAL JURISDICTION. But they could have brought it under 1367(a) SO there was supplemental jurisdiction. D appeals saying that there is no jurisdiction on private job in federal court. (no subject matter jurisdiction).

YOU CANNOT WAIVE SUBJECT MATTER JURISDICTION Personal CAN BE WAIVED AS LONG AS IT IS DONE IN YOUR RESPONSIVE PLEADING (ANSWER) OR MOTION TO DISMISS. D Lost appeal It was compulsory It was not permissive Claim is anciallary if: usually turns up if defendant;s acting and is addition to primary claim.

i.e. if P and D had a tort with truck accident in Kansas, could D make a successful counterclaim yes, because it is permissive as it does not arise out of the same cause of action. It is not compulsory, which would have to have been brought. Federal court would not have jurisdiction in this case over the truck crash because it was a tort(no SMJ).
COURTS HAVE SAID, WHEN YOU HAVE ARISING OUT OF SAME CAUSE OF ACTION YOU DONT NEED A .FOR FEDERAL JURISDICTION. The fed court would need an independent basis on a permissive counterclaim!!! For them to hear it. (the truck crash would have to have diversity, or some subject matter having to do with government). i.e. one counterclaim can be heard in Fed court the other counterclaim cannot be heard in Federal court. Lambert v. Southern Counties Gas Co. Negligence case. Bulldozer ran over gas line, blew up. Rental company P Ranch D negligence suit Gas Co. D negligence 1 complaint two counts.. D gas company demurrer. D says that no proximate cause due to Plaintiffs contributory negligence, therefore demurrer. Demurrer is a motion to dismiss in California. There is a fact issue. In order to dismiss, cannot be a fact issue, must be one of law. Lambert moved to dismiss due to failure to state a claim. You cant make a motion to dismiss on a factual dispute. Defendant found the contributory negligence in the complaint by P. Plaintiff stated it. Keypoint - Motions to dismiss must be based upon law and not a factual dispute. Gas company cant use Ps complaint of contributory negligence by Owner D because there could have been two separate complaints. He was allowed to sue separately, but did not because this is more efficient and makes Defendants point fingers at each other. Hypothetical: Theory of liability against Ranchowner renter negligence in driving over pipeline. Plaintiff lost Now P sues gas company. What is theory of liability against gas company? - negligence pipe too close to surface. CE must be Same issue Same facts Ce DOES NOT APPLY HERE AND THEREFORE Inconsistent pleading in the federal system 8(e)(2). Ex: DEFENDANT RUNS RED LIGHT PLAINTIFF SUES DRIVER AND LOOSES PLAINTIFF THEN SUES CAR OWNER


Can Plaintiff sue? NO What does defendant do? Uses Defensive Collateral Estopppel In this case, first source of negligence is running light Facts in the suing the owner is also running the red light Thus DEFENSIVE COLLATERAL ESTOPPEL WORKS HERE.

PERMISSIVE JOINDER HypO. P sues ranch D1 and wins Then sues Gas company D2 The Gas company (in California) will raise collateral estoppel against P because of motor vehicle code because negligence is imputed to the Plaintiff The first case already said the landowner was negligent and that liability was already decided and that liability is imputed to bailor in California. So gas company shall raise collateral estoppel and say hahaha prove it at trial.
Pan Am Airlines v. United States District Court. Judges assigned randomly by lot. ASSOCIATED DRY GOODS CORP V. TOWERS FINANCIAL CORP. Lessee/subLessor dispute ends up in federal court due to diversity. D files a motion to dismiss, 12b7, failure to join the original landlord. Towers argues that it would take away diversity if they enjoined them. Indispensible Party test (2 parts) a. Are they necessary 1.In the persons absence complete releif cannot be accorded among those already parties 2. Now determine if indispensible 4 part test. in outline B. Are they indispensible. If this was a 1990 case, what law would apply? The statute for SUPPLEMENTAL JURISDICTION 1367 (THIS would be an example of anciallary jurisdiction, a COUNTERCLAIM WOULD FLY). 3/23/99 Implead claim against a third party to bring them in. (3rd party complaint) Rule 14 (california called crossclaim)

Concurrent Tortfeasors American Motorcycle Assn v. Superior Court Teenage minor boy sues because he gets hurt. Parent sue for him because he is a minor Guardian ad litem appointed by court for singular purpose. Dependency proceeding. (i.e. tort action). D sought to implead the parents for active negligence. Court denied it because there were no grounds. If the parent sues as guardian ad litem, can you just counterclaim as if they were plaintiffs? NO, Parents arent actually the Plaintiff here. They are there in a particular capacity and not there in a particular capacity. Contributory v. Comparative negligence in California. If CONtributory , no claim. If comparative claim %.
If concurrent tortfeasor use comparative and let parents take responsibility for there %. Fairview Park Excavating Co. v. Al Monzo Construction Co. P was sub, didnt get paid D1 Prime contractor D2 Townwhip owner D3 - Maryland Casualty P (ohio) D1 (PA) x D2 (PA) x D3 (Md) D2 dismissed filed an answer

Fairview sued all at once under Rule 18 Rule 20 Permissive joinder of parties says that you can sue D2 answered and said that under Penn law, owner not liable to Plaintiff Fed court used Penn choice of law rules Erie Doctrine (klaxon case) P sues D1,D2,&D3 D1,D3 counterclaim against P D1, D3 crossclaim against D2 D2 moves to dismiss Is the Motion to dismiss for D2 a substantive defense that must be raised? IN the answer for D2 was lack of privity and in trial, the D2 raised it and was dismissed.


You can waive a substantive defense, but cannot With D2 out, only remaining link is crossclaim by D1, both are from same case THUS COURT KICKS OUT THE CLAIM AGAINST FOR NO DIVERSITY. Motion to dismiss lack of diversity. Overturned because this was an ancillary claim. There is anciallary jurisdiction so that claim is going to go ahead. If dismissal of D2 was on non jurisdictional grounds, your retain jurisdiction. SO THE ONLY WAY THAT THE CROSSCLAIM WOULD HAVE FAILED IS IF D2 WAS DISMISSED FOR JURISDICTIONAL REASONS. SINCE IT WAS A SUBSTATNIVE, THEY STAY. Nominal parties Suing in ones capacity If you sue in the wrong capacity, they will not be liable. Virginia Electric & Power Co. v. Westinghouse Electric Corp. Power station blew. VEPCO from Virginia (power Co.) Insurer INA carrier from Pennsylvania. INA paid $1.9M leaving $150,000 unpaid. In return they would use VEPCO as front for suing Westinghouse (D) who built the project. (Westinghouse from Pennsylvania as well). They wanted to go after D Westinghouse is suing in federal court because of Diversity. IF they did not, then 12b7 for failure to join a party under 19b. MOTION TO DISMISS FOR FAILURE TO JOIN under 12b7 for failure to join A PARTY UNDER 19b. Case that governs 3/29/99 D is saying that INA should not be joined Rule 17 argued Plaintiff party in interest, but real meaning of rule 17 party in interest As long as party wants to enforce a claim. Substantive uses law of state when sitting in diversity Eerie RULE 19 JOINDER 2 PART TEST TO DETERMINE IF COURT CAN CONTINUE WITHOUT A JOINDER OF A PARTY. THEN 4 PART TEST KNOW THEM CLASS ACTIONS Most Cases are not class actions and most lawyers will not use them They occur only in certain types of cases Limited to Commercial actions Civil rights actions Certain injunctions Where injunctive relief is sought Wetlands Public nuisances Disabled person rest home Land use decisions. If these areas are within your domain, rules are different between state court class actions and federal court class actions Fla , NY, Ca all have CA statutes that are different from Federal Class Action Rules. (states are more old fashioned) Process and standards are different. Just know that there is a distinction here. Rule 23 governs class actions Handling a class action Drafting elements are pleaded in the complaint (section in complaint where you type in the class action allegations that will mirror the language of 23a & 23b Needs to be simple notice pleading. 23b be careful as to the type of class you are alleging 2 types of class actions b2 action for injunctive relief (you can seek money damges here too, but you cant get money for the entire class) ex: want to stop a practive of police practice that injured a named plaintiff. You have a complaint for money damages for the named, but only injunctive and declaratory relief for the class. b3 action for money damages stockholder derivative suits b2 & b3 differ in terms of the rights of the members of the class. B2 cant opt out What happened was illegal and court decides that it must be stopped by way of injunction. Just because some people like the illegal nuisance and want it to continue, does not mean the court will care about your disinterest. B3 can opt out If a person does not want to be obligated to seek damages, they dont have to. The must AFFIRMATIVELY opt out though. Notification Notifications for b2 You dont have to notify the parties until the end. Notifications for b3 must notify parties as litigation is going on of how to get out. Certifying the class Determining the class Must be done as soon as possible. Court must enter order certifying class as soon as practicable. Once certified, class wide discovery can take place. If the court denies certification, it cannot grant class-wide relief. Prerequisite to Class Action - Meeting the test



Early on Plaintiff will make a motion for class certification. Documentation demonstrating elements of rule 23 are put in there in support of the motion in memorandum, affidavits, & documents to demonstrate compliance with the rules. Class so numerous that joinder is impractical. Numerousity. You could have a small class (25). There are questions of law or fact common to the class. Commonality Across the class, people have the same problem or claim. The claims or defenses of the representative parties are typical of the claims or defenses of the class. Typicality. The plaintiffs claims are of the type that the class has., but the named plaintiffs claims look like the claims of all others in the class, and that the named plaintiffs are represented as to their claims. Each plaintiff does not have to suffer each violations, but amongst them you must be able to demonstrate all of the alleged wrongs. i.e. nuisance homeowners value is reduced but not bothered by smell, another guy whos home has not diminished, but is bothered by the smell. They can be in the class. The representative parties will fairly and adequately protect the interests of this class. Adequacy. Plaintiffs lawyers will work vigorously to protect class members. Fiscal ability, background experience and not dependent upon the desires of the named plaintiffs., ethics.

b. c.


Phillips Petroleum v. Shutts Shareholders derivative suit Suing on behalf of the corporation for violations. Shareholders own gas wells. Corp. enters into a contract lease to oil companies to use the wells and work them. Payment is based upon market price of the oil. Oil co. says we will pay you market price. 2 part case choice of law done other question is class action. Ability of defendants to say no PJ under plaintiffs., this was brought as a class. Class action Numerousity Yes, too numerous making it impractical. Commonality 23(b)(2) party oppossing class has acted in a way applicable to the class as a whole. action of withholding made all person suffer a common injury. Typicality Claims look the same. Adequacy Adequacy obviously ok. Jurisdiction over Plaintiff class members Fair because he gets the chance to OPT-OUT and International shoe test was to protect Defendants, and these are plaintiffs. This class is a plaintiff. Rationale Proper notification is required Constitutional protection Right to Notice and opportunity to be heard Procedural due process under Mullane Notice and right ot be heard and RULE 23 COMPLIES WITH Procedural Due process and it is fair. Ability to be heard Notice of the proceeding Ability to Opt out International Shoe is a due process rule itself and applies to Defendants. KEYPOINT: If elements of rule 23 are met, then plaintiffs would could not be subject to personal jurisdiction, are subject to it by right.

3/30/99 FRCP 26-37 37 governs enforcement of discovery can be used by both sides If you want to force someone to do discovery - FILE A MOTION MOTION TO COMPEL. If you dont want to comply FILE A MOTION because you dont want to give up discovery MOTION FOR A PROTECTIVE ORDER R26(c) You dont have to move for a protective order, the court may let you out of it if the request You have a strategic choice either move for a protective order to not have to produce, or wait for other side to bring motion against you and then respond with your reasons. Essentially, make your motion or wait to respond to their motion, sometimes they dont make it. Does the losing party pay sanctions? Not if there was a good faith basis for the objections. Sanctions - usually occurs when you get an order compelling discovery and they dont produce it.

Discovery Devices 1. Depositions meet to ask questions 2. Interrogatories written quesitons 2a. Deposition on written questions read to person to say yes or no 3. Production of Documents and things produces it or tells where to get the thing or document Tangible physical items. Includes entry onto land 4. Physical and Mental examinations of persons 5. Requests for Admissions Protective Orders/Orders to Compel/sanctions Tool for discovery, must get from court if other side is abusing discovery
Subpoena 2 types 1. Subpoena for trial Order or obligation for someone to appear in court.


2. Subpoena for deposition obligates person to appear for deposition .3. Subpoena Ducas takem To make someone produce documents at a deposition or at trial. You do not need to subpoena parties to have depositions taken. Nonparties You may have to subpoena them. Discovery process Pre-litigation discovery is rarely used Informal litigation. Formal discovery When does formal discovery start? If you submit a complaint and other side does Motion to Dismiss, do you continue discovery? Does the filing a motion to dismiss stay all proceedings, NO, it does not as a matter of law. However, for practicality, it should stop all depositions or interrogatories, etc.

Keypoint - Early in litigation there may be motion practice, which may stay discovery. The timing of the commencement of discovery have time frames FIND THEM Vs. Practicality if there are motions going on, there will be noone doing discovery. IF there are motion proceedings and the attorney wants to do discovery, then he may ask the court to allow it (like if someone is dying).
Change in federal rules most significant Duty to disclose (required discovery) - that you must provide stuff to the other side without their asking for it.

*In federal system - Notice pleading (R8) Now have duty to disclose which changes analysis of plaintiffs lawyers needing more detail. Forces lawyers to have to change their complaint to include detail, which he is not required to do. If I only put a plain statement, then I will get less stuff because their duty to disclose is less. I am screwed. Florida Filing of a motions for a more definite statement. Dont understand the complaint.

Other changes Limit to 10 depositions 25 interrogatories may be waived with permission of court
Obligation of parties to meet to plan discovery - As soon as practicable or within 14 days prior to a pre-scheduling conference

Discovery and Work Products Hickman v. Taylor P bring suit over a wrongful death action arising out of tugboat accident. IN fed court because of fed Jones Act. D collected information by meeting with witnesses, etc. and took statements, etc. and made his own notes. P took interrogatories to D and asked for information that was taken. He wanted notes and interviews taken. D refused to fork them over.THIS STUFF IS NOT ATTORNEY CLIENT PRIVILEGE. Because it is not between attorney and client. D does not want to turn over his notes. This is not A-C privilge, it is the attorneys thoughts and it work product. What are the circumstances that the Attorneys dont have to turn it over yes Attorney work product IN order to get this, the Plaintiff must make a particularized showing: When relevant Must be relevant Necessity Undue hardship or burden to get it any other way. This is now a FRCP after Hickman. 2 kinds of Attorney work product Federal rules resolve this matter.

Fact based Other side may be entitled to this under certain circumstances (i.e. witness died). Mental impressions of the lawyer 26(b)(3) are Immune from discovery

Rule for taking depositoins 2 types of objections at depositions Those you must make at depositions or they are waived

Evidentiary Objections - Those which cannot be ruled on at depositions. Evidentiary objections dont need to be made at depositions i.e. Cant ask compound question, were you speeding or did you run the light? That is correctable, so must be objected to right there.

Objections to the form of the questions Attorney Client Privilege Immune from discovery Any communication by client is a privileged communication. What the lawyer says to the client is attorney-client privilege it is work product.


Document may be discoverable if it was the accident report.

4/5/99 Rule 26(b)(1) Limitations on discovery. You have to word your questions properly. Everything that relates to claims and defenses can be asked in discovery Claims, defenses, etc Defenses- AFFIRMATIVE DEFENSES You find 19 Affirmative Defenses that are available are in the F.R.C.P. 8(c) affirmative defenses Limitation to Affirmative Defenses they must be relevant! Relevance - It makes something more probable or less probable Tends to prove or disprove a claim or defense Relevance is about Evidence F.Rules of Evidence Objections are made on the grounds of relevance. Limits on Discovery Attorney client privilege Attorney client work product At what point does the other lawyer say it is not relevant in deposition objection in interrogatories typed in objection in a request for production of documents, - you object in the RESPONSE IN REQUEST TO PRODUCTION OF DOCUMENTS. - which you produce with the produced documents. This will say what is attached or where you can find them. It may say objection due to OVERLY BURDENSOME, etc. in admissions make a n objection in writing After that you make a MOTION for a PROTECTIVE ORDER Made by the party who does not want to disclose. The party who wants the stuff MAKES A MOTION TO COMPELL Motions in discovery

Dont want to produce it Motion for a protective order

Want the stuff Motion to compel Rule 37 sanctions and good faith basis for asking for discovery and making sure that it is relevant.

Significance of the Federal Rules of Evidence in discovery The admission of evidence is dictated by the F.R. of Evidence (limits on hearsay, etc.) FRCP deals with collection of info ultimately used at trial, but not yet to be used at trial. Admissibility at trial is not yet our concern, this means that you can discover information, which ultimately may not be admissible. IT must be relevant (prove or disprove a claim or defense) there are a limited number of exceptions in the ability it discover. FRCP in discovery says, although may not be ultimately admissable is not a reason to withhold it. Why? because it may lead to other information. You can depose person whom you heard hearsay came from because it may lead to lead to something else Rule 26(b)(1). Under Rule 26, you can asks questions about all affirmative defenses
Question whom you can talk to in discovery? Upjohn v. United States P U.S. Government D Upjohn Co. and Counsel Federal court because Involves IRS Appeals court refused to extend A-C privilege SC reversed for D D won. Company discovered that its oversees subsidiary made illegal payments to a foreign government. Asked lawyer to investigate Lawyer put out questionnaire to employees. Investigation was highly confidential. A report submitted to SEC and IRS. IRS began to investigate tax consequences and served summons, demanding production. D refused work product & attorney client privilege. Purpose of Attorney client privilege encourage full and frank communication between attorneys and clients thereby promote broader public interest in the observance of law and administration of justice P952 As for corporations Court has assumed that the privilege applies when the client is a corporation and the government does not contest the general proposition.


Control group test p952 those in charge Separate groups High level, mid level, low level Communication v. facts p955 dont have to disclose a statement to attorney, but must disclose a fact Nothing in IRS doctrine says anything about precluding work product doctrine, therefore it is good. BUT, government cites reasons to overcome it p956 Rule 26 p956 on attorneys mental process.- Must produce disclosure of documents and tangible things constitutiting attorney-work product upon showing of a substantial need and inability to obtain the equivalent without undue hardship. The court will then protect against disclosures of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. BUT SC HERE SAYS SOMETHING MORE NEEDS TO BE SHOWN, BUT NOT SURE P957

Facts Are discoverable What someone told their attorney is not. THERE IS ANOTHER WAY TO GET PRIVILEGED INFORMATION WITHOUT NECESSITY AND UNDUE HARDSHIP Who else can get statement? A party - can get a copy of their statement Someone else who is not a party of the litigation (witness?) May get something (work product) without required showing a statement previously made by that person by asking the attorney for it. KEYPOINT - THE WITNESS CAN GET HIS OR HER OWN STATEMENT FROM THE LAWYER AND DOES NOT HAVE TO SHOW UNDUE HARDSHIP, BURDEN, NECESSITY.

Attorney-Client Privilege extends to Corporations, but you must figure out who client is. Any worker is the corporation - For purposes of a corporation, any one can be a client and therefore governed by Attorney-Client Privilege When lawyer generates the questionnaire this is Attorney Client Work product It is discoverable under certain circumstances.

When it is immune v. when it is discoverable work product: When a lawyer writes down what the witness says, but not in his words or not all and underlines some statements & question marks on some stuff (his own thoughts)? mental impressions, immune from discovery When a lawyer tells the witness to write it down himself? Discoverable with necessity & undue hardship When a lawyer writes it down word for word? Discoverable with necessity & undue hardship Supreme court never decided if OPINION WORKPRODUCT, usually, no showing of necessity and undue hardship WILL NOT LET IT BE DISCOVERABLE. SOMETHING MORE SUBSTANTIAL THAN UNDUE HARDSHIP & NECESSITY IS NEEDED. Most cases say you cant produce it. Swidler & Berlin v. United States Pettitioner Is an attorney. P made notes of an interview before client died. (Vince Foster). Government(independent counsel) tried to obtain notes for use in criminal trial. Vince Foster death trial. Petitioner filed MOTION TO QUASH District Court agreed with Peititioner Court of Appeals reversed for Government Balancing test for POSTHUMOUS EXCEPTION Gov argues that a dead client is exempt and notes must be revealed. Posthumously can still hurt family & reputation, etc. BUT attorney client privilege survives the death of a client. SC says notes are protected by Attorney-Client Privilege. Supreme court looks to common law and Federal Rules of Evidence for Attorney-Client Privilege Rule 501 of F.R. of Evidence Testamentary Exception talk about will in confidence. Crime-Fraud Exception. Court said that privacy extends beyond the grave and the Supreme court upholds the POSTHUMOUS REMOVAL OF PRIVILEGED COMMUNICATION CANT BE REVEALED. Attorney took notes here. These notes are work product that are included in attorney client privilege.

Technical Limitation on Work Product Must be in preparation for litigation. (in anticipation of litigation). If there is no expectation of litigation, then some info may become attorney-client privilege and some may not.

What about the part that is not privileged If the lawyers notes, comments or thoughts dont aim at litigation, it is not protected, but that can be argued because a lot of what a lawyer does is try to protect client from litigation.

4/6/99 Expert Witnesses FRCP 26(a)(2) IF you are going to Categories of expert witnesses 1. Those who are retained to testify 2. Informal conversations with other experts What is the difference between two What happens when there are no other experts around?


As a general proposition courts say that you are entitled to depose the one who is testifying, if you can show extraordinary or special circumstances, you wont get access to the one who was informally contacted. Physical & Mental Examinations FRCP 35 Fla Rule1.360 To get a mental/physical exam 1. You have to show that the mental or physical is an issue 2. You have to make a motion for good cause 3. You have to give a notice specifying the time, place, manner, conditions, & scope of the examination and the person or persons whom it is to be made Dale says there is no motion U.S.Dist Ct. S.D. Fl. Miami Division _______________________ ________________________ Notice of Physical Exam Please take notice that a physical exam of Michael Dale will take place at time, date, place, etc Florida requires a notice Rule 35 encompasses all physical and mental examinations (including dental). Vinson v. Superior Court. P Vinson D Superior Court Case #-_____

Case heard hear in Supreme Court of California. P sued for sexual harassment and intentional infliction of emotional distress, writ of mandate not to have a mental examination of her past sexual history, request her attorney be there if it is held She claims loss of sleep, anxiety, mental anguish, humiliation, reduced self esteem, etc. Court said, must have exam, but scope restricted, and attorney not present. D wants a medical and psychological exam to determine extent of ailments because she makes it part of her suit. they want no restrictions on scope of exam. Lower court maintained for test without extra stuff she wanted. P appealed for writ. Court of appeals denied her. She appeals again. She used a writ of mandate and / or prohibition to both stop and do something. Court concludes her mental state is in controversy here p962

Limit is that they could not talk about her sexual history due to irrelevance . Limits on notion of right of privacy Mental and Physical exams require a court order. Court may grant motion only for good cause shown p962/963 Good cause requires that party produce specific facts justifying the discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissable evidence. Court said that she has waived some right to privacy, but not where it has to do with sex p964/965 ON ATTENDANCE OF ATTORNEY P fears that examiner will stray beyond limits. D says it cant work with counsel objecting to stuff. PLAINTIFF USED A WRIT RATHER THAN APPEALING (WRIT OF MANDATE)
APPEALS FROM FINAL ORDERS APPEALS FROM INTERLOCUTORY ORDERS In california governmed by writs and easy challenge actions by the trial court on appeal. Cal rules are such that interlocutory matters are resolved by writs. These are not done is Federal system. Federal system does not use writs Fed appeals from final orders Writs.- not often granted. (writ of mandamus is used in a very limited fashion.) It is hard to get interlocutory relief in Florida

Failure to comply with Discovery Rule 37 DiFFERENT PROBLEMS HAVE DIFFERENT SANCTIONS. Court can strike out pleadings or certain parts of it


Accord and satisfaction you sue for money owed, then you cut deal for 75% as satisfaction. Court will not let you sue for the rest. The P may say that there was no agreement. If the opposing party refuses to give the agreement. There is a request for production of documents and they refuse THEREFORE THE DEFENSE CAN BE STRUCK OUT. Accord & Satisfaction is an affirmative defense. Put in answer.

Default usually occurs when a party does not show up and the other side gets a judgement and seeks to enforce it. In this case, the D showed up, but had failed to respond to interrogatories 3 ways that an appeals court can look at what a trial court did (how do they look) 1. legal question same authority as the trial court to look at law. No need to give deference to trial coruts decision this is because judges are all equally competent. DE NOVO look at it again. 2. Discretionary look at abuse of discretion appeals court can Appeals court cannot reverse if they see that, although they dont agree with lower courts decision, it was understandable 3.????????????? Supreme court does not usually deal with this type of thing. They are sending a message to the lower courts that you must document what you do and sends a message to lower courts of discretionary decisions and should feel free to use the power under R37, the court has the power to do drastic things like dismissing a case. National Hockey League v. Metropolitan Hockey Club, Inc. Case arises out of a dismissal under FR 37 for failure to timely file interrogatories District court ruled to dismiss complaint due to the Plaintiffs not doing their job.

Court of Appeals 3rd circuit reversed judgement for dismissal No showing of bad faith by P, flagrant, willful, or intentional. There was a consent decree and P attorney took over litigation afterwards Issue here is if THE Lowest district court ABUSED ITS DISCRETION. SC Overturns in favor of D again due to P bad faith and callous disregard Writ of Certiority is granted. Reversed for D. Led to default judgement.

PRE-TRIAL CONFERENCE Rules differ dramatically between states Must know and understand local rules governing pre-trial Court may order a pretrial conference DONE BY PRE-TRIAL ORDER To discuss discovery plan To set ground rules for the trial Closer to trial to obligate parties to make agreements about the trial (pre-trial stipulation) writing that would be agreed to which include agreed upon facts facts at issue agreed upon matters at law outstanding questions of law witness, document lists expected length of trials list of witnesses testifying by deposition Federal Rules are more precise some states are like federal Florida is less precise than other states, but you must be careful of the judge you have who is more precise.

Rigby v. Beech Aircraft U.S. court of appeals 10th circuit, P-Rigby, D-Beech Aircraft, Airplane crash-plane was made by Defendant. Wrongful death action Manual, handbook, letters, bulletins defective and misleading as to the defect in the auxiliary fuel tanks. Also lack of testing by Defendant & Concealed poblems by Defendant. D denied defective cells and alleged pilot error 52

Issues on appeal p996 Court affirms that evidence in interrogatories is not relevant , therefore, not material. The interrogatories mentioned nothing about the 40 gallon tank, that were not in the interrogatories. The court disallowed information to be submitted under FR of evidence because it was irrelevant. It had nothing to do with an issue in the case. TO FIND ISSUE IN THE CASE Look in pleadings Look in discovery Look in pre-trial order if not in pleadings, you can amend and conform your pre-trial order to include something - you must do this before trial. otherwise unfair to the defendant. Pre-trial determined issues and now it is too late. 4/7/99 STATUTE OF LIMITATIONS CAN BE PROCEDURAL OR SUBSTANTIVE IF IT IS WRITTEN IN STATUTE IT IS SUBSTANTIVE. Devices to avoid trial Assumed to be true How the court looks at a motion Motion to dismiss is never a factual dispute!!! Assuming all is true you still dont have a case. 12b6 motion to dismiss for failure to state a claim.YOU MUST FILE AN ANSWER WITH THE MOTION TO DISMISS IN ORDER TO KEEP THE PLAINTIFF FROM GOING AHEAD AND DOING A VOLUNTARY DISMISSAL. This precludes other party from doing a voluntary dismissal 12B6 Claim is on the merits? 12b6(Ftscuwrcbg) is on the merits and therefore has=RES JUDICATA effect. Under Rule 12 (c) Judgment on the pleadings, anyone may move for judgment on the pleadings after the pleadings are complete. When the D makes the motion it is basically a 12b6. 12b6 is only available to the D. Motion to dismiss for failure to prosecute Plaintiff does not exercise dilligence Failing to Defend Default Judgement Failure to Defend Effect OF a dismissal based upon motion - depends if it is dismissed upon procedure We dont know if case is over forever. Depending upon the grounds you may have a dismissal that is On the merits v. not on the merits On the merits means case is over (with prejudice) Not on the merits ( If you bring a claim on the basis of a statute and the court decides you dont have a case, the court decides that you cannot get relief on the merits NOT ON MERITS Insufficiency of process just serve them again.

Move to dismiss based upon statute of limitations being run is this a dismissal on the merits NO IT IS NOT.

Voluntary Dismissal Plaintiff dismisses his or her own cause of action himself before D has answered or moved for summary judgement. May do it once without prejudice after that with prejudice. Rule 41 (a) (1).

Failure to Defend (see above) results in one of two things Default occurs when D never shows up at all Paperwork generated by clerk P wants to enforce default must get court order to enforce judgement Default Judgement Did did do something, and then did nothing else. This is on notice t o Defendant Sometimes D never knows about the default judgement. United States v. Cirami P US D Cirami Court United States District Court for the Eastern District of New York Court here US Court of appeals for the 2nd circuit. D was assessed back taxes of $170,000.00 for 3 years that Government disallowed business deductions D did not pay and 6 years later IRS filed a collection action IRS P moved for summary judgement D attorneys did not oppose the motion and it was granted as a default judgement D later got new lawyers and moved to vacate the judgement due to poor counsel Motion was denied INNEFECTIVE COUNSEL IS INSUFFICIENT FOR VACATING A SUMMARY JUDGEMENT Rule 60(b)(6) Relief from orders and judgements Permits a party to be relieved from final judgement if 1. mistake, inadvertance, surprise, or excusable neglect made within 1 year This motion in this case was made outside time frame prescribed in FRCP. Need Gross Negligence 2. Newly discovered evidence, which by due dilligence, could not have been discovered in time made within 1 year. 3. Fraud, misrepresentation, or other misconduct by adverse party made within 1 year. 4. The judgement is void 5. The judgement has been satisfied, released or discharged 6. Any other reason justifying relief form the operation of a judgement. applicable on showing of exceptional circumstances. made within a reasonable time. D appealed Affirmed in favor of P because D-Cirami showed no gross negligence or misleading of appellants by counsel. D did not use any dilligence to have found out about the summary judgement.

There is a difference b/n an: 54

Entry of default-This, under rule 55 is just a simple entry by the clerk of the court noting the D defaulted on something, like he filed something late. And Entry of judgment by default-This, under rule 55b is an actual entry of a judgment on the merits with res judica consequences.

You dont want to try cases You want to settle Because it is expensive Because it takes too long Juries suck and judges are unpredictable If you settle you have some control Cant predict outcome AUTHORITY TO SETTLE CASES Edwards v. Boren Lawyers settle for $150,000 and one party fires lawyer and does not accept it. Issue, can a person not accept his lawyers deal Issue AUTHORITY TO SETTLE CASE Authority is a principle of agency. Authority is usually express as in writing, etc. Authority can be implied and Authority is apparent to the 3rd party. Agreeements entered into by lawyers with apparent authority will be upheld Key is what generated the apparent authority? A.A. must occur by activites of the client. The client has to do affirmative things that would indicate that the lawyer will have authority to settle. The client, signs interrogatories, gets deposition taken, client is present for conversations with other side. IF there is apparent authority then the lawyer on the other side may rely upon the representations of the lawyer. Under those circumstances, the client will be bound by that settlement, even IF THERE IS NO EXPRESS AUTHORITY, THE PARTY IS STILL BOUND. SINCE EVERYTHING THAT WENT ON DEMONSTRATED TO THE 3RD PARTY THAT THERE WAS APPARENT AUTHORITY. Send all correspondence copies to the client. keep constant communication. Have a 3rd party present to hear clients knowledge of your actions. Settlements-Approval of the Court-Most dismissals pursuant to settlement do not require approval of the court. One exception is settlement and dismissal of actions brought on behalf of minors, insane persons, or incompetants. Approval of the client required-A lawyer has no power to settle a case without his clients authority, although some courts will approve settlements on the basis of apparent authority. Summary Judgement Occurs when 55

May be done at any time 56(b) by Defendant Is a ruling on the merits because it is a judgement of law There is no dispute about the facts. So you want there to be facts in dispute , therefore you create facts in dispute 56(f) using affidavit. Ask the court for records Motion may be made without supporting affidavits 56(a). You get a continuance and use DISCOVERY.

Adickes v. S.H. Kress P Adickes D S.H. Kress Court United States District Court for the Southern District of NY P sued D for a violation of civil rights 42 USC 1983 Equal protection clause of the 14th amendment. P alleges (brought in NY b/c P is master of complaint 1. Violation of civil rights count 1 conspiracy between D and Mississippi police count 2 P (a white person from NY) and African-American kids sat down at Ds lunch counter in Mississippi Cops were there Waitress refused to take Ps order because she was white in company of African-American P was then arrested for vagrancy 2 elements necessary to recover under 1983 IN CONSPIRACY. 1. P must prove that the D has deprived him of a right secured by the CONstitution and laws of the US 2. P must show that the deprivation of rights was under the color of a statute, ordinance, regulation, custom, useage or any state or territory. Person does not have to be an officer of the state, but may be working with them. D moved for summary judgement on the conspiracy count 56

SJ was granted ON THE CONSPIRACY COUNT Judge entered a directed verdict for P on the 1st count. P appealed In Supreme Court now Reversed for P, no summary judgement for P because there are facts at issue. (cop in restaurant). There must be no genuine issue of material fact, facts must be viewed in a light most favorable to the nonmoving party There was an issue of whether or not there was a cop in the store that is an issue of fact. NO affidavits were produced by D that would have required P to overcome them. AFFIDAVITS IN SUMMARY JUDGEMENT CANNOT REST ON HERESAY. THEY MUST BE BASED UPON PERSONAL KNOWLEDGE OF THE AFFIANT. P argued issue of fact on page 1035 IN ORDER FOR SUMMARY JUGEMENT TO BE GRANTED THE COURT MUST SAY THAT THERE IS NO GENUINE ISSUE AS TO MATERIAL FACTS THAT THE MOVING PARTY IS ENTITLED TO A JUDGEMENT AS A MATTER OF LAW FACTS ARE VIEWED IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY. If evidentiary issue no summary judgement. 4/12/99 Motion Summary Judgement View the facts as true File together: Files Motion for SJ Files Memorandum of law in support of summary judgment Files exhibits, interrogatories ., exhibits, etc. Other side gets it all too. Complaints Verified complaint when P swares under oath to best of knoweledge it is true Fed not verified Type of complaints that must be verified complaints for Fraud, What is the value of a probative complaint, that is unverified This is not going to help complaint. Motion to dismiss v. motion for summary judgement Either party can move for S.J. 12b6 FTSCUWRCBG motion to dismiss is a motion dealing with law. IF you look at complaint and even if true, it still does not recognize claim they are entiteld to. Tests the Complaint (test the legal claim in the complaint). 56(c) SJ Tool to test the evidence or to test facts. IF there is no evidence motion granted and you win. Can the complaint alone be evidence NO Unless it is verified and becomes an affidavit.- could be evidence You could rest on your complaint- but that is not good because it is not evidence. When the defendant filing motion for summary judgement fails to show the absence of a genuine issue of material fact it gets denied. (failing to prove through there affidavits that the cop was not in the store)(Addickes) It is therefore possible that the cop was in the store at the time. Therefore there is a genuine issue of material fact)(trier of fact figures it out).(Now it goes to trial and jury renders an inference significance of 57

evidence v. what it even is). Jury could infer by the silence of all Defendants and that the people were ordered to leave, that there was a conspiracy. PARTY MOVING MUST NEGATE EVERY POSSIBLE RECOVERY. Moving party BURDEN OF PRODUCTION (as opposed to burden of proof) Nonmoving party (P or D, whoever does not file) has BURDEN OF PROOF THAT THERE ARE ISSUE AS TO MATERIAL FACT. If the Moving party (D), produces evidence, it may make the P rest on his complaint. That is dangerous , but if they do, the court will only look at that. Celotex Corp. v. Catrett P Catrett D Celotex District Court in DC For Diversity Appeals Court of appeals for the District of Columbia Circuit Reversed for P Supreme Court here reversed back for D P sued D for death of her husband due to exposure to the Defendants products. Asbestos Negligence Breach of Warranty Strict Liability 15 companies manufacture Asbestos 2 filed motions challenging in personam 13 filed motions for summary judgment Celotex wanted summary judgement because P failed to produce evidence that any Celotex product was proximate cause within the District Court of DC jurisdiction. D did not submit any evidence whatsoever, only answers from the plaintiff. THAT WAS ALL!!!! P offered 3 letters creating a dispute D said they were heresay. DC granted SJ COA reversed due to fatally defective showing of NO EVIDENCE in support of SJ 56(e) Party opposing SJ motion bears the burden of responding ONLY after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact. SJ granted after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. Supporting affidavits not needed or SJ motion Purpose of SJ To dispose of factually unsupported claims or defenses and to secure the just, speedy, and inexpensive determination of every action. Nonmoving party must show genuine issue for trial. must go beyond the pleadings and use her own affidavits, depositions, answers to interrogatories, and admissions on file to designate specific facts showing that there is a genuine issue for trial. Denial of SJ - 56(f) Allows SJ motion to be denied, or the hearing on the motion to be continued if the nonmoving party has not had the opportunity to make full discovery. Dissent (Brennan) Celotex did not meet its burden of proof. 2 burdens on moving party for motion for Summary Judgement Burden of production shifts back and forth b/n P&D 58

Burden of persuasion always on moving party. Timing - You make a motion of SJ anytime P must wait 20 days though D can do it right away. Facts are fleshed out before trial in discovery If D files for Motion for SJ P is protected because court allows the plaintiff time to figure out facts to protect him from summary judgement. Defedant does not have to submit its own aff. Int, dep, etc. to support this You dont submit anything to the court until trial, pretrial, etc. SC is faced with whether the D ca n get away with just submitting the Ps answers in support of SJ. There was no evidence that supports Ps claim that D was proximate cause of Death of husband. She did not establish an element of the claim. Motion for SJ does the evidence have to be in an admissible form NO! SO the court can weigh the evidence that is heresay. Moving party does not have to submit evidence alone. The moving party DOES NOT HAVE TO AFFIRMATIVELY DISPROVE THE PLAINTIFFS CLAIM. THE D ONLY NEEDS TO PRODUCE THINGS THAT SHOW NO GENUINE ISSUE OF MATERIAL FACT. THE MOVING PARTY MUST SUPPORT ITS MOTION BUT NOT NECESSARILY WITH ITS OWN STUFF, IT CAN USE THE PLAINTIFFS COMPLAINT ITSELF THAT THE P DID NOT PROVED. Affirmative evidence moving partys evidence NonAffirmative evidence moving party using nonmoving partys evidence against them.

You cant move for summary judgement without supporting evidence. You must show the court something. There are different ways of showing no issue of material fact D just shows Ps stuff and shows that it is not enough to show fault. YOU CAN GO TO THE PS EVIDENCE AND SHOW THAT IT IS NOT ENOUGH. YOU DONT HAVE TO SUBMIT ANYTHING OF YOUR OWN, JUST USE PS AND POINT TO FACT THAT NOTHING IN THERE DOES IT. It also does not have to be in admissable form for purposes of sj The opposing party cannot stand on pleadings Anyone can use SJ YOU CAN USE SJ AGAINST SOMEONES AFFIRMATIVE DEFENSE (19 IN frcp) Occurs in all variety of context. IF any language suggests that moving party does not have to support its motion for affidavits

Motion for partial summary judgement P has 3 count complaint and D moves for SJ on count 2 Issue What is evidentiary standard for Summary Judgement IT is the same standard as it would be for trial. The court has said that Summary judgement could be granted where it would require a directed verdict for the moving party in a trial. Directed Verdict Trial judge must direct a verdict if, under governing law, there can be but one reasonable conclusion as to the verdict. If reasonable minds could differ as to the import of evidence, there could be no directed verdict. SJ v DV motions SJ Motion granted before trial and decided on documentary evidence DV Motion made at trial and decided on evidence that has been admitted made after Plaintiff case in chief made after Defendants case in chief made after both JUDGE PLACES HIMSELF IN THE POSITION OF THE JURY. AND SAYS COULD A REASONABLE JURY FIND FOR THIS PARTY. If no grants directed verdict. Does not have to be that there is no evidence, it must be that a reasonable jury to possibly find. Sj is granted, then jury does not get to hear the case. DV the jury hears it but does not get to decide the case. SJ&DV SAME APPROACH Evidentiary standard same for both - There must be evidence on which a jury could reasonably find for the Plaintiff Proper Evidentiary standard is that of what a trial would have to determine PPE, CCE, BARD. Timing SJ motion by Defendant with or before filing an answer (p1058) SJ motion by Plaintiff after a time interval that, in most jurisdictions, is related to the time allowed by the D to answer.(1058) This is test of CCE because Libel is a tort that requires this instead of PPE Court looks to see if evidence is so one sided approach of the Directed Verdict

KEYPOINT - FORM AND TYPE OF EVIDENCE MAY BE VERY DIFFERENT FROM WHAT EVIDENCE IS SHOWN IF IT GETS TO TRIAL WEIGHED IN A REASONABLY JURY STANDARDS JUDGE MUST USE DV EVIDENTIARY STANDARD THAT IS APPLICABLE TO THE CAUSE OF ACTION WHEN DECIDING SUMMARY JUDGEMENT. Other situattions If issue of credibility of witnesses (believability) that bears on a material in the case sJ will not be granted. If Inference will have to be drawn SJ will not be granted. T Right to Jury Trial Order of a trial

Party makes a demand for a jury (38b) For D 10 days after last pleading 1. Clerk puts it on calender 2. Jury Selection voir dire 12 or 6 Test for competency and prejudice of jurors and their truthfulness 3. Plaintiff opening statement purpose to outline and help jury follow case 4. D makes openings statement (or can wait until P presents evidence first) 5. P puts out case in chief- offering evidence, oral documentary and real (witnesses) a. Direct Examination of witness - P witness sworn in & examined by P b. Cross Examination of witness by D to draw out any information that is potentially favorable to the D & to expose deficiencies in examination, & to establish bias of the witness (impeachment) c. Re-Direct Examination of the witness P attorney does it again. d. More exam by each. 6. P rests after putting out all evidence and turns forum over to D. 7. D presents motions to take the case away from the jury (nonsuits & directed verdict) 8. D puts out case in chief to jury. a-d above apply 9. P now moves for a directed verdict. Granted only if as a matter of law, the Ds case was inadequate to controvert the plaintiffs case. OR present rebuttal evidence. 10. Closing statements by both sides if the case does not get a directed verdict. a. Plaintiff argues b. Defendant argues c. Plaintiff has a short time to conclude. Subpoenas For person Subpoena ad testificadum For production of a thing subpoena ducas takem Constitution 7 th amendment No right to jury in civil cases is shown in constitution If a case in controversy is over $20.00, then there shall be a jury trial (p1064) 14th amendment criminal cases What is a jury trial Jury should consist of 12 men That the trial be in the presence of a judge with power to instruct and advise them That the verdict should be unanimous

Where facts are in dispute to be legal and equitable issues a jury must decide (1077) jury should go first to avoid a preclusive effect of a judges factual determination. Claims involving fury trials must be tried first. 61

Dissent This decision forces Fox not to be able to present its own case first, but instead respond to legal claims.(1077). CONSTITUTIONS AND RIGHTS TO JURY TRIAL 7 th amendment does not apply in state court proceedings, only federal court use state constitution for finding a right to jury trial in a state court. A jury can decide an issue in equity ONLY IF IT IS ATTACHED to an issue at law and being litigated at one time. FR merged equity and law. Old rules says that who ever got to courthouse first, got heard first. New rules are that AL & AE are heard together. (FRCP) legal and equitable claims to be heard together. LAW & EQUITY GET HEARD TOGETHER NOW DO WE HEAR THE JURY TRIAL FIRST? WHICH HAPPENS FIRST? JURY TRIAL OR EQUITY ACTION. JURY TRIAL (LEGAL ISSUE ) GOES FIRST. IF YOU HAVE CLAIMS OF LAW AND EQUITY IN THE SAME CASE, THE JURY WILL MAKE JUDGEMENT ON FACTS THAT EFFECT BOTH CLAIMS. LEGAL CLAIM CAN COME ABOUT BY ANSWER OR COUNTERCLAIM.. DECIDE LEGAL ISSUE FIRST.

Do you get a right to a jury trial how do you figure it out? It is possible to have a legal claim but still not have a right to a jury. Governed by 7th amendment actions recognized at common law for more than 20 dollars What were causes of action not recognized in 1791, what are they? This is in adequate because a client has more control in an attorney-client relationship than in a union and can fire the attorney. THIS ISSUE IS HOWEVER CLOSER TO A BREACH OF CONTRACT ACTION. District court Denied Ds motion to strike. Interlocutory appeal next 4th circuit affirmed under 7th amendment right to jury trial. This action had both equitalble and legal issues Two things P must prove to bring suit and recover money damages 1. Employers action violated the terms of the collective bargaining agreement 2. Union breached its duty of fair representation. Issue is if P is entitled to a jury trial 7th amendment suits at common law (means suits at law) where controversy shall exceed 20 dollars. To determine if a particular action will resolve legal rights 1. Use 18th century test 2. examine remedy sought and determine whether it is legal or equitable in nature. S.C. affirms and finds that backpay here for a breach of fair representation is an action at law. 62

RIGHT TO JURY TRIAL IS DEPENDENT UPON THE NATURE OF THE ISSUE AND THE REMEDY SOUGHT. Dissent this is like a breach of fiduciary only and that therefore makes it equitable. 2 part test to determine if you get a jury trial in Federal Court. 1. court looks at rights are they analagous to anything in common law 2. court looks at damages this is more significant part of the test. 7 th amendment only applies in Federal court. 7 th amendment guarantees a right to trial by jury Test to determine jury trial 1. Look at issue to determine if it belongs to a court of law or court of remedy 2. Look at the remedy sought and decide if it is legal or equitable in nature. If the statute is silent on a right to a jury trial Just because it does not say anything, it does not mean that the party does or does not have a right to jury trial Court determines that the action is an action in civil debt. Determine liability to pay the civil penalty SOMETIMES THINGS ARE TOO COMPLICATED FOR THE JURY. Administrative Law Does the 7 th amendment apply? Not here because gov has the right to set up public rights with an administrative panel. If congress passes a law that produces a protective scheme, there still may be a right to a jury trial you must look forward. It is only CERTAIN ACTIONS of the government that apply. (regulatory scheme). Public right public policy Congress cant do it all the time? How do you figure out when congress is overstepping its bounds has to do with 7 th amendment This type of thing protected workplace was not a part of the constitutional 7 th amendment protection and was not recognized at common law WHEN SOMETHING IS NOT RECOGNIZED AT COMMON LAW THEN CONGRESS CAN SET UP REGULATORY AGENCIES AND HAVE PROCEEDINGS WITHOUT JURY TRIAL. PUBLIC RIHGT INVOLVES GOVERNMENT IN ITS SOVERIEG NCAPACITY WHEN YOU HAVE A CLAIM BASED UPON A STATUTE. THIS DOES NOT MEAN JUST BECAUSE IT IS IN A STATUTE THAT THERE IS NO RIGHT TO A JURY TRIAL. GOV ACTING IN SOVEREIGTN CAPAS=CITY GOV ACTING UNDER LAW.

Right to a jury trial analysis 2 lines of analysis 63

1. Beacon & Ross if you have a legal claim, which is analagous to one recognized at commonlaw you get a jury anf th ecourt will make sureof it. (even if the issue was not recognized under commonlaw look for a close cause of action) 2. Atlas congress with some limitations can do as it wishes by articulating a public rights rationale which leads to an admiinstrative hearing If congress is silent the court will look at History Pragmatics of the case (how easy it would be for a jury to hear jury may not be able to handle it) too complicated 3. State system look in state constitution but it usually looks like the federal analysis here. 4. Defendant or Plaintiff can ask for a jury trial T Voir Dire FRCP 61 p229 Test by which means one can get a new trial becase A party must prove that the juror failed to a nswer the question 1. first show that the juror failed to honestly answer a material question. 3. Then, the party must show that a correct response would have provided a valid basis for challenge for cause. Juror Challenges During Voir Dire 1. Challenge for cause - Use challenges for cause where you can, because those are unlimited feeling or view that juror will not be helpful for you but where there is no actual bias 2. Pre-emptory challenge limited amount - 3 in Federal Court What happens if answer is honestly given, but if you knew the background, then that answer would indicate bias. Whether answer is honest or dishonest, it does not matter, because you can still have bias, but we never get perfect jurors Fundamental difference in Voir Dire between State and Federal Courts State Court System Voir Dire Attorneys conduct Voir Dire Federal Court System Voir Dire Judges conduct Voir Dire Sometimes Attorneys can give judges lists of questions. View Point Plaintiffs vantage point question in Voir Dire you want to find out if juror is using standard of PPE not BARD. Defendants vantage point question in Voir Dire what does the juror think in light of the fact that there is liability based upon the fact that there is even as suit. Goals in Voir Dire 3 Is Ingratiation 64

Indoctrination Information FR 48 number of jurors 28 usc 1865 qualifications of jurors D used two peremptory challenges to eliminate black individuals from the prospective jury. Voir Dire in Racial Exclusion of Jurors Must have Government doing it Must be state action. A corporation could not be accountable for discrimination unless there is a Statute They are working as an agent working on state projects. Application of Civil cases does apply because the government is responsible for the court system everyone uses. Race Based Pre-empotory Challenge (TEST) Must show that the Defendant is a member of a cognizable Racial Group Has standing to raise issue Prosecutor must have removed a member of the same race from the prospective jury Defendant can rely on the fact that pre-emptory challenge constitute a jury selection practice that permits Those of a mind to discriminate who are of mind to discriminate D musht show that these facts and any other relavent circumstances raise an inference that the prosecutor used that practice to exclude the juror due to race Prosecutor who knocks them off Prosecutor must show race neutral explanations after the challenge is made to their knock off

To move for a new trial must have had actual knowledge Motion for new trial done within 10 days after judgement is entered Vacating p1161 In determining whether a judgment should be vacated when the judge violated section 455, the courts must consider: the risk of injustice to the parties in the particular case; the risk that the denial of relief will produce injustice in other cases; and the risk of undermining public confidence in the judicial system. They make motion to vacate under 60b6 under reasonable time. When judge recuses himself Appearance of impropriety can get a waiver from both parties or divest himself of interest Test Would a Reasonable person question the judges impropriety. the risk of injustice to the parties in the particular case; the risk that the denial of relief will produce injustice in other cases; and 65

the risk of undermining public confidence in the judicial system. Real impropriety Judge must recuse himself When the judge does not know about the conflict until later in time Judge must adhere to A.O.I. above - where judge truly does not know, this does not minimize the appearance of impropriety because the judge should have known. Court says, you must under 455 It is still the appearance of impropriety. 4/20/99 Judges job at a jury trial Charging the jury Instructs the jury as to the law the jury will use to decide the case. Grant or deny motions Motion for Directed Verdict Motion for a judgement n.o.v. Rule on evidentiary matters Judge keeps order in the court room Judge would like to see the case go to the jury because if it does not go to jury more likely to go to appeal and the decision is not on them. Judge can take away from jury by directed verdict. Jury does not have to say why they decided it Judge must explain why he came up with that ruling conclusions Judges who make ruling must reconcile with other judges Political and legal tendencies to let the case go to juries Practical standards Issue must be one of law and not of fact for the judge to take the case away from the jury. Because the jury must decide the facts Request for a jury trial is within 10 days of the last pleading as to when a jury trial is an entitlement. (could be in answer when D says they want it) Also in Counterclaim. When no facts in dispute decision is a matter of law When facts are in dispute decision is one of matter of fact and must go to jury. Pragmatic/political/emotional reaction of judges to let it go to jury Judges are more knowledgeable as the law goes. Judges are better educated Juries are average educated Jury is more sympathetic than a judge Jury on socioeconomic status Judges focus is on many cases Jurys focus is on trying to get out of this. Judge is likely to be more concerned about long term value of case Judge is more jaded Sioux City & Pacific Railroad v. Stout Case that comes through the state court system get to supreme court State court cases can get to the supreme court if THERE IS A CONSTITUTIONAL ISSUE 66

Federal because it is a railroad For the US SUPREME COURT TO HEAR STATE CASES THERE MUST BE ACONSTITUTIONAL ISSUE!!!!! OR IT MUST HAVE GONE THROUGH THE FEDERAL SYSTEM INSTEAD!!! ONLY TWO WAYS TO GET TO US SUPREME COURT Where the facts are undisputed, that does not mean that whats left is a legal decision. If different minds could find for different conclusion leads to the one job left for the jury now that they dont have to determine facts in disupte.. That job is to determine if the standards of the d fell below the standards APPLY LAW TO THE FACTS BASED UPON EVIDENTIARY STANDARD OF MORE LIKELY THAN NOT THERE WAS NEGLIGENCE Jury makes an inference, deduction, weigh, conclude! That all of these undisputed facts result in the conclusion that the Defendants behavior was unreasonable. that is a fact finding. Judge does not know it is for the jury to tell you.BECAUSE REASONABLE MINDS COULD DIFFER. You have facts and you know the story, but you dont know that the railroad was negligent. Although you may feel so as the judge, you dont know and must let the jury decide. BECAUSE REASONABLE MINDS COULD DIFFER and therefore the judge cant take it away from the jury. Judge cannot take it away from the jury because RMCD draw a different inference of the facts then the judge cannot take it away from the jury, even though the facts are not in dispute. Undisputed facts must still be weighed in the law. In Summary judgement looking at the evidence to see if S.J. should be granted. Judges use: Light most favorable Evidentiary Standard No reasonable jury could find for the nonmoving party If not, there are genuine issue of material fact and moving party is not entitled to S.J. as a matter of law. AFFIRMATIVE DEFENSE MUST CREATE A MATERIAL FACT IN DISPUTE To 1. 2. 3. go J.N.O.V. You must first make a judgement for directed verdict as a precursor to JNOV New name for DV is JUDGEMENT AS A MATTER OF LAW J.N.O.V. IS NOW CALLED renewed motion for judgement as a matter of law.


J.N.O.V. (Renewed motion for judgement as a matter of law) standard for granting Look at the evidence in a light There has to be but one conclusion that can be reached. Evidence standard evidence must be viewed in the light most favorable to the party against whom the motion is made and he must be given the benefit of all reasonable inferences which may be drawn in hs favor from the evidence. Federal Evidence standard (more restrictive), Above but - only evidence favorable to P, and the uncontradicted, unimpeached evidence unfavorable to him, may be considered. The judgment n.o.v. was also correct under this standard. Now look at facts in the case. Last clear chance doctrine know? Directed verdict may be granted when there is no substantial evidence to support a verdict for the nonmoving party, disregarding conflicting evidence and indulging every legitimate inference in favor of that party. However, a mere scintilla of evidence will not defeat the motion for a directed verdict. (light most favorable to the nonmoving party) Substantial Support is the test in most jurisdictions (not scintilla). Opening statement An opening statement is the lawyers description of what the evidence will show. It does not contain argument no suggestion of significance of facts Rule of thumb is whether or not a witness will say what you say or a document will say what you say or any other . Closing argument by Defendant Party says what the significance things had, what inferences may be drawn, Limits on closing arguments There are rules on what is permissible Relevance must be tending to prove or disprove a claim in a case Character of P or D may or may not be an issue in a civil case The Golden Rule - It is not permissible to tell the jury to put themselves in the position of the party because you are asking the jury to abandon the reasonable person standard, and invoke sympathy. This could produce a Mistrial. Lawyer cannot say, I know he did it he may not personally avow a position. I suggest to you or you should consider are ok. This is the distinction between the personal proof and the advocacy of the lawyer. Objecting in Closing Argument Make timely objection and tell why Must Admonish - Must ask court to have jury disregard or strike comments Effect on jury can bias jury Judge can sanction an offending attorney or move for mistrial Can Sidebar Summary, you must make objections, ask for admonishment all there at the time of the offense.

Remittitur Judge reduces the amount of jury award 68

Additur- Judge raised amount of jury award

Judge Commenting on Evidence Fla judge cannot sum up evidence 90.106 Federal Judge can sum up evidence Judge can comment on Weight of evidence Clarify complications Comment on credibility of witnesses Comment on weight of evidence The judge may comment on the ultimate issue on the case General Rule is that they do not comment so as not to create an appearance of bias, etc. Rarely comment on weight of evidence or credibility of witnesses anyway Jury getting wasted at trial Impeaching a Jury verdict General rule cannot obtain testimony from a juror to impeach a verdict to try to prove the verdict is no good. Issue is whether the influence is extrinsic or intrinsic. External (like bribe) likely to change the verdict. Internal (like one jury screaming at another) not likely to change the verdict Drugs & Alcohol? Did it come from outside of the deliberations?(Dissent) You can use a non-juror to testify on this. It is external/internal when it is the juror who brings it in. Civpro last week

4/26/99 Motions for judgement as a matter of law Rule 50(a)(2) motions for judgement as a matter of law may be made at any time before submissions of the case to the jury. Motion for Directed Verdicts and J.N.O.V. - Rule 50 Too late to move for summary judgement when the trial starts and Directed Verdict takes over from there. Motion for directed verdict at the close of the other sides opening statement you are saying conceptually the same as a summary judgement. Opening statement is telling what the case will show roadmap of the evidence


Then other side moves for directed verdict based upon that opening statement Moves for directed verdict and tells why evidence presented does not prove an element and DV should be granted verdict as a matter of law. See 50(a)(1). Motions to dismiss cannot be made in jury trial it is too late for that If a lawyer gives a brief opening statement can a motion for directed verdict be made against him? Motion for DV & JNOV is different whether you look at some evidence or all evidence, in different jurisdictions In every jurisdiction, they vantage point you take to look at the evidence is in a light most favorable to the nonmoving party. How much is enough weight of evidence to let the judge grant DV or JNOV? IT IS NOT THE AMOUNT OF EVIDENCE, BUT THE QUALITY TO fight JNOV or DV, the evidence SUFFICIENT OR SUBSTANTIAL EVIDENCE (as opposed to scintilla) so that REASONABLE MINDS COULD DIFFER. Scintilla rejected. Some courts say that a scintilla is not enough against the motion. Yes there is that little bit of evidence, but it is not enough Does substantial evidence really mean Substantial evidence ALL YOU NEED IS SOMETHING THAT LETS A REASONABLE PERSON DIFFER THEN IT IS A QUESTION FOR THE JURY. DISCRETIONARY POWER OF JUDGE BECAUSE THE JUDGE WAS THERE AND FELT THE COURTROOM. Motion for a new trial against the great weight of evidence.

DIRECTED VERDICT Made before the jury gets the case. It is too late to make after jury gets case submitted to it. 50(a)(2). You first ask for DV, if they dont give it, you ask for JNOV, if not, then Motion for new trial JNOV Now if you win motion for JNOV, the court sets aside verdict and asks for a new trial all at once! Within discretion of the court Nonreviewable save for an abuse of discretion If you move for JNOV, the jury has already given a verdict You move for JNOV after the verdict (despite the verdict!) I want a judgement anyway. YOU WANT JUDGEMENT!!! FOR YOU!!!! They did not win, I won, judge!


STANDARD - Tougher to meet standard is Reasonable minds could not differ as to the evidence and evidence is examined in light most favorable to nonmoving party and it is a matter of law you are done if you win no trial!! MOTION FOR NEW TRIAL Want a new trial after jury verdict. Something must have happened with the evidence and a bad jury deliberation. You do not want the court to enter judgement for you (or you would have JNOV) STANDARD - TO get a new trial you have to show that the verdict was Atleast against the great weight of the evidence (it is not the same standard as JNOV) it is less because if it were more, you would have had JNOV and be done!

Great weight of Evidence- what is great weight of evidence does not mean that reasonable minds could not differ., if so, it would have been JNOV, it is something less than that Fundamental Error v. Clearly erroneous. As opposed to: Greater weight of evidence refers to burden of proof in civil cases (that is perponderance of evidence). This is a jury thing. Great weight v. Greater weight dont get them confused! New trial? If a judge refused to admit a piece of evidence could you move for JNOV? Yes, you can move on procedural issues. IF jury instructions are wrong new trial? yes If misconduct by judge or jury yes Too high or low judgement yes ( if no additur or remitter) Difference between JNOV and Motion for New Trial ? - Want it over for your favor v. want to be heard again

Spurlin v. General Motors Corp. Citation. 528 F.2d 612 (5th Cir. 1976). Facts. Spurlin and others (Ps) sued General Motors Corp. (D) in consolidated actions for the wrongful deaths and personal injuries of their children who were passengers on a school bus. D was the manufacturer of the chassis of the bus. The jury heard evidence from both sides regarding whether or not the brake system in the bus was negligently designed. It also heard evidence as to whether the bus had been properly maintained. The jury returned a verdict in the amount of $70,000 for each wrongful death. The court, however, granted D's motions for judgment notwithstanding the verdict and in the alternative, for a new trial. The court stated that the verdict was not supported by the evidence. Ps appeal. P WON D MOVED FOR DV COURT GRANTED DV 71

Issue. Must the jury verdict be against the great weight of the evidence to justify a new trial? Held. Yes. Judgment reversed. a) The grant of a judgment n.o.v. is not proper if there was substantial evidence of such quality and weight that reasonable and fair-minded people in the exercise of impartial judgment might reach different conclusions. b) Expert testimony was offered to support Ps' theory even though it was contradicted by D's witnesses. Conflicting evidence as to the intervening negligence of the bus driver indicated that proximate cause should have been determined by the jury. c) A grant of a new trial is not proper on the basis of insufficient evidence unless the jury verdict was against the great weight of the evidence. In this case, there was conflicting evidence on the issues of negligent design and proximate cause which the jury should have decided. Courts may not set aside a jury verdict merely because they feel another result is more reasonable. d) Although a district court's order is reviewable only for an abuse of discretion, the reviewing court must be especially sensitive to orders which have the effect of impairing a litigant's Seventh Amendment right to a jury. Commentary. If a reasonable jury could have assimilated the evidence and come to the same conclusion, then the judge may not enter judgment not withstanding the verdict.

AGAINST THE GREAT WEIGHT OF EVIDENCE IS DISCRETIONARY THERE IS NO STANDARD! Rely on discretion of court and it must be Reasonable! Experience from law school to the bench Judge saw the trial and evidence WHAT IS THE STANDARD OF APPELLATE REVIEW OF A JUDGE TRIED CASE ? Clearly erroneious Evidentiary review standard for a question of law from a trial court judge? Legal question will be overruled if he abused his discretion. Grant deference to the trial judge in his analysis of the law 3 levels of review for appellate courts in the US a. Clearly erroneous used when there are factual issues b. De Novo look at case new and fresh used when question of law c. Abuse of discretion for law?


Appellate court and trial court judges are equal in knowledge of the law. There is no harm in the appellate court looking at the law over the trial judge, there IS a problem with looking at facts anew! Then we dont need trial court! Discretion & Fact matters defere nce given to trial court because he was there! Matters of Law

4/27/99 What is standard of review here CLEARLY ERRONEOUS BECAUSE IT WAS A FACT REVIEW. This IS not a case invloving conclusions of law or else it would be a de novo review. Appeals court used De Novo Review YOU DONT USE DENOVO REVIEW IN JUDGE TRIED CASE BECAUSE DE NOVO IS A COMPLETE RE HEARING OF CASE. Judge knows the same amount in District court rather than Rationale for appeals court not taking the place of the fact finder is the same whether the fact finder was a judge or a jury same standard applies Documents dont sweat! Rule 52a it does not differentiate between the types of evidence WHEN APPEALS COURT REMANDS V. REVERSING VERDICT REMAND When they find that there was a clearly erroneous finding of fact when there is an remand unless there is only one conlcusiton that they ould made APPELLATE REVIEW STANDARDS Remand when TRIAL COURT MADE AN ERROR OF FACT OR ERROR OF LAW Error of law - Because even if trial court made an error, it must still be given the oppprtunity to reveiew or reweigh the facts that IT saw or heard If error is one of fact finding, then given the guidenace of apeals court send it back to trial court to think again about what it saw and what it herad for reevaluation EXEPTON IF as a matter of law there could only be one result, then it may reverse THE DOCUMENTARY EVIDENCE STANDARD IS THE SAME AS THAT GENERATED BY WITNESSES IN TRIAL Appellate Process



Federal Rule 52(a) specifies that district court findings of fact may not be set aside unless clearly erroneous. It does not create a distinction between ultimate and subsidiary facts. Rule 52(a) does not apply to legal conclusions; however, the court of appeals reversed on the basis of its own finding of fact. Discriminatory motive is neither a question of law nor a mixed question of law and fact. The court of appeals could properly reverse only if the district court's finding was clearly erroneous. Although the court concluded that the district court had failed to consider certain relevant evidence, the proper response is a remand for further proceedings, not the making of its own independent findings.


APPELLATE PRODCESS Federal system system all same, but each federal circuit hasa short group of its own rules FEDERAL RULES OF APPELLATE PROCEDURE AND LOCAL RULSE OF PARTICULAR CIRCUIT check both 2. State systems 4. Limits on ability to appeal a) General rule Judgemetn must be final!, subject to exceptions b) The errors must be properly waived at tril and preserved for appeal c) Errors of law ar e reviewabe c) Errors of fact are not reviewable d) Certain error are harmless e) Discretionary decisions of trial court are only reviewed if there was an abuse of discretion 4. Structure of Appeal a) Time to appeal set by rules of jurisdiciton b) Started with Notice of Appeal c) Where to file trial court v. appeallate court find out in each jurisdiction 5. Judgement appealed from a) what happens to lower courts order during appeal stayed Stay obligation may include posting a bond so the other party doesnot get rid of money Cross appeal in Stays must be filed within 14 days of notice of appeal 6. Record on Appeal 1 copy gets sent to appeals court Check local rule of appellate process to find out how it is done and if it must be copied Size cut down by parties agreeing to only send an appendix (certain portions agreed to be sent) Drafting of briefs, filing ,requests for oral arguments all part of record

Federal Appellate Process Statutes that govern 74

1291 1292 deal with Appeals from final orders Interlocutory appeal hard to get heard in the federal system What is exception to final judgement rule You can have final judgements that are not on the merits!!! Can you appeal a class certification decision? NO Appeals are only for final orders It is the DEATH KNELL OF THE CASE WHEN YOU DECERTIFY THE CLASS!!! The amount drops down and it is no longer enough to sue ovre The death knell is upheld It is one sided for Defendant You can also have too many appeals if you decertify class This is a legislative matter EFFECT OF ORDER TO DECERTIFY IS NOT APPEALLABLE IT IS A LEGISLATIVE DECISION TO CHANGE THIS LAW! DONT COME TO US AGAIN Exception to the final order rule cohen rule (Collateral order rule) Could you take up on appeal the fact that court denied class certification? Something not related to the merits of the case, is unreviewable and my hurt the party, THE COURT WILL LET SOMEONE TAKE APPEAL But here class certification is not a collateral order and does not fit this exception Court reasserts final order rule court will not dilute it because it prevents interlocutory appeals. APPEAL FROM FINAL ORDRE BY RIGHT INTERLOCUTORY APPEAL SOME ARE BY RIGHT need approval of trial court & appellate court. APPEAL IS LIMITED TO CASES THAT END

Coopers & Lybrand v. Livesay SUED UNDER FEDERAL STATUTE


Issue. Is a lower court's decision that an action may not be maintained as a Rule 23 class action a final decision appealable as a matter of right? Held. No. Judgment affirmed. 1) As a general rule, a final decision must end the litigation on the merits and leave nothing for the court to do but execute the judgment before it is appealed. 2) A decision that refuses to certify the class does not terminate the litigation since P can proceed individually. 3) The collateral order exception to this rule permits review from orders that conclusively determine the disputed question. The order must resolve an important issue completely separate from the merits of the action and be effectively unreviewable on appeal from the final judgment. The appeal in question is not in this category. 4) The death knell exception assumes that without the incentive of possible group recovery the individual P will not find it economically feasible to pursue his case. In this case, the court will then have to make factual determinations as to each individual P. To require this would be wasteful of the court's resources.

Digital v. Desktop When can you get appellate relief This does not fit within Cohen or within narrow exceptions. Qualified Immunity situations where the court has made an ability to take up what is not the final order on dispute and you can go up as a matter of right. Court also says Other way out for an appellant Other tool 1292 available under certain circumstances But you must show DISCRETIONARY APPEAL FROM INTERLOCUTORY ORDRS MUST BE Certified by tiral jude Controlling law where there is difference of opinion Rest of test in 1292 Then you can get appeal when trial is still going on!!! CHECKLIST FOR APPEALS 1. APPEALS AS OF RIGHT hard to get unless there is a true final order and must show that you have is a collateral order and there is a limited list. Cant do it while case is still going on. 76

You cant appeal during a case just because a judge dismisses one of your claims NO, but you can do an interlocutory appeal and must run through test Controlling question of law (part of IA test) If judge refuses 2. INTERLOCUTORY APPEAL (some exceptions) but you must meet 1292 test (insert) and these are not easy to meet 3. MANDAMUS (Kerr) FORCING A LOWER COURT TO CARRY OUT AN ORDER Mandamus will issue only in extraordinary circumstances. P must first show there are no alternative means to secure the desired relief. Lawful exercise of prescribed jurisdiction. other adequate means to attain relief satisfy the issue of burden is clear and indisputable Matter of discretion Rarely ever used.

IN Kerr, the D could not have appealed BY RIGHT the look at their stuff because it was not a final order (in camera inspection) Could they have interlocutory no, not a controlling question fo law WRIT OF MANDAMUS IS FINAL OPTION

Cox Broadcasting Corp. v. Cohn 1257 Certiority To get to SC from state court you must have a CONSTITUTIONAL ISSUE!
It usually hears the case from a final judgement from the state supreme court But, There are other situations where there is no final judgement of state supreme court because of difficulty of final judgement. 4 issues (exceptions) rationale is IF THEY DID NOT ALLOW APPEAL, THEN THE FEDERAL QUESTION WOULD NOT BE RESOLVED! The previous orders in the state supreme court did not decide anything, so SC must hear the questions in cases where the decision of highest corut of state does not clearly decide constitutional question! Know exceptions!


Issue. Can the Supreme Court take jurisdiction over a case in which the highest court of the state has finally determined the federal issues presented in the case but in which there remain further proceedings in lower state courts? 1) In this case, if the case were first remanded to the lower state court, one of the parties might prevail on the merits on nonfederal grounds. This would leave important constitutional questions unanswered. 2) Even if D were to prevail at trial, the fact remains that if the state law was erroneously upheld, there should be no trial at all. It would also be unnecessary to further consider the constitutional issues. 3) Since a decision by the Supreme Court could terminate the litigation, the appeal is proper in this case. 4) On the merits, the statute violated freedom of the press and is therefore unconstitutional.

Ackerman v. United States

Rule 60b Relief from final judgement Appeal is one way Other tool - Failure to appeal was excusable 60(b)(6) 60b6 must have something more than excusable neglect found in 60b1 WHAT IS EXCUSABLE NEGLECT? TiME LIMIT ON b1 To use b6 USE COUNSEL APPEAL IN A TIMELY FASHION There are situations where time to appeal has run Citation. 340 U.S. 193 (1950). Facts. Ackermann (P) filed a motion to set aside a judgment that canceled his certificate of naturalization as a United States citizen. P alleged that his failure to appeal from the judgment was excusable because he had been advised after the judgment by the Assistant United States Commissioner for Immigration that due to his financial condition he should not appeal and that at the end of the war things would be straightened out. P did not take the advice of his attorney to sell his home and appeal the case, although his codefendant in the case appealed and the judgment was reversed. The lower courts dismissed P's motion and the Supreme Court granted certiorari. Issue. Is detrimental reliance on a government official's recommendation sufficient cause to bring a case within Federal Rule 60(b) (6), which applies if any "other reason" justifying relief is present? 78

Held. No. Judgment affirmed. (1) It is not enough for petitioner to allege that he had confidence in the Assistant Commissioner. P had no right to repose such confidence in the Assistant Commissioner, a stranger. (2) Nothing shows that the Assistant Commissioner had any undue influence over P or practiced any fraud, deceit, misrepresentation, or duress. There was no privity or fiduciary relationship between them. P's choice was a risk, but calculated and deliberate, and as such follows a free choice. P cannot be relieved of such a choice because hindsight seems to indicate that his decision not to appeal was wrong. (3) There must be an end to litigation and free choices are not to be relieved from. (4) Relief from a voluntary, deliberate, free, untrammeled choice not to appeal cannot be granted under Rule 60(b). Dissent. The Court's interpretation of Rule 60(b) neutralizes the humane spirit of the rule and frustrates its purpose. Commentary. Various other grounds may be available to attack a judgment or order in the trial court. The Federal Rules provide for a motion to set aside a judgment on the grounds that it is void; or that it has been satisfied; or that a prior judgment upon which it is based has now been reversed; "or any other reason justifying relief from the operation of the judgment." Kulchar v. Kulchar Citation. 462 P.2d 17 (Cal. 1969). Facts. In divorce proceeding, Kulchar (P) agreed to pay all taxes owing by his wife (D) prior to the year 1964. Two years later, he received a tax assessment of $22,000 for federal income taxes based on theretofore undisclosed income accumulated during the marriage by a New Zealand corporation in the wife's name. P moved to modify the divorce decree to relieve him of any liability for taxes on the New Zealand income on grounds of extrinsic fraud and extrinsic mistake. The trial court granted him relief. D appeals. Issue. Do the facts alleged by the husband amount to extrinsic fraud and extrinsic mistake? Held. No. Judgment reversed. (1) Extrinsic fraud arises when a party is denied a fair adversary hearing because he has been deliberately kept in ignorance of the action or proceeding or in some other way fraudulently prevented from presenting his claim or defense. Cases which show that there has never been a real contest in the trial or hearing are reasons for which a new suit may be sustained to set aside and annul the former judgment. Commentary. Where the moving party was prevented from a full and fair trail on the merits, or where important information was concealed from her, preventing her from asserting some valid 79

claim or defense; or where there is corruption among counsel, on the part of the judge etc., then the moving part is entitled to set aside the judgment. Intrinsic fraud, however, is not sufficient to set aside a judgment.

FINAL EXAM Hypotheticals Find issues Articulate law Apply the law to the facts


Issue Law Tort A tort is civil wrong define Duty, breach, causation, damages F. Apply law to facts In this case, he ran red light and breached his duty. The D blah, blah C.Thus the Defendant was negligent. You keep going to the other issues, even if there was no jurisdiction, BUT IF THERE IS, ISSUE # 2 I issue - important L rule of law know it and define it F. apply to facts big time analysis 80

C conclusion least important. ORDERING OF ISSUE IN CIVIL PROCEDURE Jurisdiction comes before jury trial ,etc. 3-7 issues per question Rule - Tested in relation to the amount of time we spent on something Rule No tricks on exam All words and sentences are significant all words dispose of issue or create an issue Must determine the CALL OF THE QUESTION WHAT DID THE EXAMINER ASK YOU TO DO. Last line of the question is the most important. Tells approach, role, how to look at issues, etc. will limit what you have to do Other rules closed book No curve Grades curve themselves A Like a beginning lawyer D Not minimally adequate C minimally adequate How to study Memorize stuff Understand concepts Dont know number of FRCP Apply federal rules however Case names dont need, just describe doctrines DEFINE LEGAL TERMS Federal rules Jurisdiction of Nova