Civil Procedure Outline From 07

8/8/2019 Civil Procedure Outline From 07

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Personal Jurisdiction 22/08/2007 21:04:00

VII. Personal Jurisdiction

a. Due Process of law requires court to give full, faith and credit to a judgment rendered with the

following:

1. Basis for jurisdiction (Power Theory):

o Personal (over a person)

a. If they were served in the state

Jurisdiction based on physical presence alone constitutes due

process because it is one of the continuing traditions of our legal

system that define the due process standard of traditional notions of

fair play and substantial justice. (Burnham v. Superior Court)

Normally for a state to assert jurisdiction over a person

Assertion is in accord with the law of that forum

Law in that forum does not exceed the permissible grounds

of Due process set out by the Supreme Court

It is possible for a person to be privileged from service of process

while in the state:

If you are brought into the state by force or fraud by the

plaintiff

In Illinois, if you pass through the state to testify for court of

another state you cannot be served

If you waive extrication in Illinois you cannot be served on an

issue related to the criminal matter

b. If they consented to jurisdiction of state over him

Actual consent in clause in a contract

You cant put a clause like that in the contract just to make it

awkward and difficult for people to sue. But in this case it

did make sense because that is where there home base

was. It allowed them to sell their cruise tickets cheaper.

By appointment of a person in that state as your agent with express

authority to accept service of process on your behalf

Implied consent by appearing in court (general appearance)

If a person shows up in a case and starts defending they are said to

have filed a general appearance and waived their objection to

personal jurisdiction

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c. If they were domiciled in the state or a resident of the state

Divorces -- Marriage is a kind of status and any court where that

status is located can grant a divorce abolishing that status in a quasi

in rem jurisdictional way. The status is located in the state of

domicile of either married partner. Married status does not extend to

child support or alimony. The court does not have jurisdiction over

the person in the married couple, only the status of the marriage.

d. The Minimum Contacts Test- International Shoe

In order to subject the defendant to a judgment in personam when he

is not present in the state, he need to have certain minimum

contacts with it such that the maintenance of the suit does not offend

the traditional notions of fair play and substantial justice.

If a corporation receives the benefits and protections of the laws of a

state, including the right to resort to the court to enforce those rights,

it should be subject to jurisdiction.

General Jurisdiction

the action was directly connected to activity in the state and

done in a regular and systematic way.

the action was not directly connected but regular and

systematic.

Specific Jurisdiction

the action was directly connected but isolated

No supplemental jurisdiction exists in cases involving

specific jurisdiction

Must have:

1. Minimum Contacts

Action in the state( (mail or telephone may suffice)

purposefully avail

Cause of action must be directly connected to the action

Action must be purposeful

o Keaton v. Hustler -- Shipping goods to a state is

enough to satisfy minimum contacts because the

injury directly arose from shipping the goods

o Calder v. Jones -- Performing an action in a state

knowing it will cause injury in another state subjects

a person to personal jurisdiction over

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o Long term contract is sufficient

o Doing Business is sufficient (Coastal Video v. The

Staywell Corp.)

o Putting a good into Stream of Commerce is not

sufficient

o Service on an officer or agent of a corporation is not

sufficient to gain personal jurisdiction unless the

corporation is doing business there unless you are

doing such systematic and continuous activity that

you avail yourself of general jurisdiction.

o Internet Cases

Look at the interactive nature of the website.

If its not interactive you normally

wont get jurisdiction

If it is interactive, what activities

would cause you to be subjected to

the jurisdiction in the state?

Selling things to people who logged

on and shipping items into the state

There is a problem with inverse use

of Internet as a source of jurisdiction

over the small consumer.

2. If Minimum Contacts exist, the assertion of jurisdiction must not

offend traditional notions of fair play and justice. Look at:

1. Burden on the defendant

2. Interest of plaintiff

3. Interests of the state of forum

4. Interstate system in getting case into most convenient

court

5. Any substantive factors should be considered

o In rem jurisdiction or quasi in rem

The presence of property of the defendant in the state

Property must be attached prior to suit (a seizure on behalf of the state).

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May subject the property to their power by selling property and turning

proceeds over to attorney who was owed. If sales price didnt satisfy any

claim they couldnt enter judgment over Neff.

Pure in rem

not against individual, against property regardless of who owns it

Quasi in rem

against a person but predicated on the ownership of property within

the state

only constitutional if the defendant has minimum contacts within the

state

1. Cause of action is related to property in state

Constitutional according to Sheffer

o You will also have personal jurisdiction over person

but you may use quasi in rem jurisdiction to serve

them by publication instead of personally which is

required for personal jurisdiction

2. Cause of action is NOT related to property in start

Unconstitutional according to Sheffer

Internet Cases: Allows you to use in rem jurisdiction to vindicate

domain name by attaching it at the location of the registrars

computer allowing the court in that state to have jurisdiction.

2. Defendant be notified and have opportunity to defend (Notice Theory)

o Personal service fulfills notice requirement

o Consent to Juridiction

o Types of Clauses pertaining to Jurisdiction

Consent to Jurisdiction of a particular court for litigation of a particular case

(does not exclude the jurisdiction of any other state but gives preference to

the jurisdiction mention)

Choice of Forum clause Carnival Cruise line case. Not only a consent to

the personal jurisdiction to that particular forum but it excludes possible

litigation in any other forum.

Valid as long as it is valid contractually.

Agreement to Arbitrate dispute. Agreement in contract saying parties will

submit to arbitration for disputes arising out of contract.

Cognovit Clauses (Confession of Judgment Clause)

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Consents to courts jurisdiction over you and that judgment is

confessed against you. You waive any defense.

Courts have said it cannot be used in a consumer transaction for

personal family or household use.

Applicable in leases (NOT in CHICAGO but in suburbs)

Applicable in loans

o Under Illinois Law if you sign a clause you may

Rule 276 provides a procedure by which

you can move to have that confession of

judgment against you set aside. Burden of

proof is shifted from plaintiff to defendant to

show he doesnt owe the money.

The Constitutional Requirement of Notice

Service of Process

State must have a basis of jurisdiction and defendant must be given

such notice as to allow them to defend themselves in court

When basis is personal service in state, the service of

process, serves both as basis of jurisdiction and gives

adequate notice of suit with opportunity to defend.

New basis of jurisdiction must still have some notice

Notice of jurisdiction in rem

1. The notice of an action pending, given to a party must be

of such nature as reasonably calculated to convey the

required information and it must afford a reasonable time for

those interested to make their appearance.

o To be reasonable must have a good chance of

reaching person or be the best way to serve person

o Notice by mail is required as to all the beneficiaries

of the trusts that the bank has addresses for.

Contingent future interests do not need to be notified

by mail.

2. Service of publication is normally proper because Owners

of tangible property are such that they usually arrange

means to learn of any direct attack on his possessory rights.

Service of mail is more likely to get notice to parties involved

when the property involved is not tangible. (trusts)

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Service of Process in Federal Courts Rule 4

o Service can be given by person over 18 who is not a party

o Waiver of service of process

Person may agree to waiver or refuse

If they waive it that waives any necessity of service of process, but

you do not waive any defense including personal jurisdiction but you

may not object to process or means of process.

Defendant has 60 days instead of 20 to respond to complaint if

service is waived and up to 90 days if case is filed outside the US

If you dont agree to waiver and your request is deemed to be

unreasonable then you will have to pay other sides costs of making

service on you (including attorneys fees) (Not applicable in IL)

If other side doesnt agree to waiver then you must make service of

process under normal rules

US government and infants and incompetents cannot waive

service of process.

o How to make service:

1. In any way that is valid under the law of the state where the federal court

is sitting including long arm statutes.

2. Personal service

3. Abode service (leaving summons at defendants normal place of abode

with person of reasonable age and discretion residing therein (do not have to

be family) and informing them of the contents.

4. serve an agent authorized on defendants behalf

corporation: any officer, managing or general agent or agent

specifically appointed to receive service

in IL: any agent of the corporation (not janitors or menial workers)

Federal court can serve within the boundaries of the State it is sitting

Joined by 14 or 19 Third party defendants or indispensable parties

100 miles within place where summons was issued

May serve outside boundaries of state when permitted by other

federal law 1335 Interpleader, anti-trust cases

Must be made within 100 days of when you file the suit

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In IL if you do business in IL under an assumed name (ex: Mikes Hotdogs)

you must file with the county clerks office. You can find out if it is an

individual or a corporation. If they arent listed in there you can sue the

unknown owners of Mikes hotdogs and serve any employee.

You can have minimum contacts with the US in general but not with a

specific state but only in federal court and in cases arising under federal law

Federal statute provides for nationwide service of process (Interpleader)

Enforcement of civil contempt order arising from litigation involving

fed ?

Service outside US

Hague Convention each signatory country must appoint a central

authority

You contact the central authority and send your request to the

central authority to serve defendant

1. Any way that is legal in that country

2. Any way plaintiff requests as long as it is not contary

3. If defendant voluntarily accepts service.

If person has assets in US, serve them in a way enforceable in US

and attach their assets.

Sewer Service where server signs service of summons even though he

didnt actually serve them

In IL you can contest the affadavit but it will not be set aside by your

own uncorroborated testimony you must have corroborating

testimony.

o

o b. Response to a states exercise of jurisdiction over you

1. Ignore it

Default judgment entered against you

When the other state brings the judgment to your home state

you could collaterally attack the claim based on the fact that

they have no jurisdiction

o If you win, the judgment wont be enforced

o If you lose, you have lost the right to defend the

case on the merits

2. In federal court, file a 12(b)(2) motion to dismiss for lack of personal

jurisdiction.

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You can waive it by filing another Rule 12 motion and dont include

lack of personal jurisdiction as a defense or if you dont file a rule 12

motion if you dont raise it in your answer

3. In a state court you may file a special appearance. The first thing you

have to do is file a special appearance objecting to the state jurisdiction and

you couldnt join anything else in the motion.

Illinois rule: Rule 5-2-301, your objection to personal jurisdiction

must be the first thing you do in the court except asking for an

extension of time and you can join other issues with it if properly

identified and isolated.

If you lose your 301 motion, and then you defend on the merits, you

do not lose the right to contest on appeal whether the court had a

basis of jurisdiction but you do lose the right whether service of

process was properly effected

***Anytime you contest the jurisdiction of the court (state or federal) you lose the right to

collaterally attack the decision (res judicata).

If the action was not directly connected and isolated then no jurisdiction exists.

Federal Courts sitting in the state have the same personal jurisdiction as the state

court of that state.

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I. Subject Matter Jurisdiction

- exlcusive jurisdiction- when federal court has exclusive right to hear the case,

the state court must dismiss the case if it is filed there

- concurrent jurisdiction- when both state and federal court may hear the case,the plaintiff may choose where to file it.

a. Federal Question Jurisdiction- Section 1331, Article 3 Section 2 (Constitution)

1. Jurisdiction in federal cases is given in 28 U.S.C. 1331- extends to all civil

actions arising under constitution, laws or treatises of United States

- "Arising under" = either federal law creates the cause of action or the plaintiffs right to

relief necessarily depends on resolution of substantial question.

- Must be a substantial claim (not frivolous) or court will dismiss

- No amount in controversy requirement

- No diversity requirement

- A State claim with a necessary federal law element presents a federal

claim

only if the federal law also affords a private right of action (Merrell Dow Pharmaceuticals

v. Thompson)

- Mottley Rule the federal question must be an essential and necessarypart to the

plaintiffs cause of action, not simply an anticipation of defense. This is an interpretation of what

Congress meant in 1331 -- If the issue has to be determined under the federal Constitution even though it is a

state claim, there can be federal jurisdiction.

- Declaratory judgments- declaration of rights is sought instead of damages, in order to

determine if it is a federal question, the courts look behind the declaratory judgment to the

essential nature of the lawsuit and if it would qualify for federal question jurisdiction

- A dismissal for lack of jurisdiction is not res judicata

2. Certain Issues are solely for Federal Courts to decide

- Admiralty and issues of maritime

- Bankruptcy

- Commerce and Anti-trust regulations

- Patents and Copyrights

- Federal Civil Rights laws

- Suits involving ambassadors and/or public officials

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3. Issues left to state courts

- Divorce

- Alimony

- Child support

- probate

b. Diversity Jurisdiction- Section 1332

Article 3, Section II of the U.S. Constitution allows federal courts to hear controversies:

Between citizens of different states

1. complete diversity- In cases with multiple plaintiffs and defendants, no plaintiff may

have citizenship in the same state as any defendant regardless of whether each defendant was

named in each claim (not required by Constitution) Strawbridge v. Curtis

a. Exceptions-

-High stakes class actions- most diversity suits over $5 million at stake

satisfies diversity requirement if minimum diversity is met (no federal question is required)

- any mass action (ex: air crash) if it involves 100 or more plaintiffs with common

facts.

-Interpleader- a proceeding by which a person

compels parties making the same claim against him or her to litigate the matter between

themselves, complete diversity not needed as long as two or more adverse claimants have

diverse citizenship

2. For the purpose of jurisdiction Puerto Rico and the District of Columbia are considered

their own state

3. In order to be a citizen of a state the person must be a citizen of the United States

and domiciled in a state

- domicile actual residence plus intent to

remain and to return if absent

- acquired at birth (take domicile of

parents) and kept until it is changed may change by acquiring new residency and

showing intent to stay there if domicile is changed before lawsuit is filed to create diversity, there

is diversity as long as it exists at time of filing and was made in good faith

4. Citizenship of partnerships is determined by considering the citizenship of all the

partners or members of the organization

5. Citizenship of corporations- the corporation is citizen of both the state in which it is

incorporated and the state in which it has its principal place of business.

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a. principal place of business- either where the bulk of the business takes place

(muscle test) or where corporate headquarters are (nerve center), or a combination of each

Between citizens of a state and a state, citizen or subject of a foreign nation

The court does not have jurisdiction to hear cases solely between citizens/subjects of

foreign states A permanent resident alien is treated as a citizen of the state he is domiciled in

A US citizen domicile abroad does not have diversity against anyone thus cannot sue in

federal court (Redner v. Sanders)

Resident alien v non resident alien no jurisdiction

Dual Citizens are only the U.S. citizenship counts

Cases in which U.S. citizens and foreign citizens are mixed satisfies diversity as long as

every party is diverse from each other (i.e. US parties are citizens of different states)

Amount in controversy must exceed $75,000 exclusive of interests and costs (interest

imposed by law, not interest accumulated in a contract)

a. If the plaintiff recovers less, the court does not lose jurisdiction

b. amount is determined by amount sought in plaintiffs complaint and does not included

amount in a counterclaim

c. Good Faith standard applies if person in good faith believes the amount in

controversy exceeds $75,000

d. If the plaintiff seeks an injunction, the value to the plaintiff, the cost to the defendant

with complying to order, or the cost to the party invoking federal jurisdiction shall be used to testamount in controversy requirement.

e. Aggregation:

1. If one claim exceeds $75,000 the requirement is satisfied for all claims

2. A single plaintiff may aggregate his claims against a single defendant even if

they are not related. If the total amount of controversy is in excess of $75,000, the requirement

is satisfied.

3. Multiple plaintiffs cannot aggregate unless they present a joint claim.

4. A plaintiff suing multiple defendants meets the amount in controversy if each

defendant is potentially liable for an amount in excess of $75,000.

5. If multiple plaintiffs exist and only ones amount in controversy reaches

75,000, supplemental jurisdicition may allow other plaintiffs to bring claims in federal courts as

long as they are factually related to each other.

6. Class Actions assign the claim to one or two people, if they win, everyone

wins

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Cases that meet diversity requirement may be heard in either state or federal court

Diversity must exist at commencement of the action

5. Burden of establishing jurisdiction rests with plaintiff (unless it the case is removed to

federal court by the defendant, then D has burden)

6. The court may use its discretion and decline to exercise jurisdiction when it exists a. claim raises novel or complex issue of state law- federal court

can make a binding decision on state law

b. claim substantially predominates over claim(s) which court has original

jurisdiction

c. district court has dismissed all claims in which it has original jurisdiction

7. Counterclaims- if the original complaint must be in excess of $75,000 but the

counterclaim does not as long as it arises from same nucleus of facts

8. Devices used to create or destroy diversity

a. Diversity denied when a party is improperly or collusively joined to invoke

jurisdiction (ex: A sues a nondiverse party and in an attempt to gain diversity assigns his claim

to B, who is diverse with defendant for $1 with the understanding that B will give A majority of

recovery.) Good faith assignments are respected, shams are not

b. If a necessary plaintiff is purposefully omitted and that party destroys diversity

the court may decide that the case may be dismissed

c. There is no statute that permits joinders to defeat jurisdiction

c. Supplemental Jurisdiction Section 1367

- Claim may be federal question or diversity claim.

- If the case has multiple claims and only some the claims satisfy the

jurisdictional requirement the court may still exercise jurisdiction if:

1. The claims arise out of the same common nucleus of operative fact (same

factual setting, same transaction)

2. Exceptions: 1367 (b) Claims bases solely on diversity narrowsscope of jurisdiction

applies to claims brought by plaintiffs joined under certain listed rules. Only applies in

diversity cases in which plaintiff is joining a new claim against a new defendant. A new claim

against the same defendant does not destroy the jurisdiction

- does not apply to counterclaims or crossclaims made by defendant,

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nor impleaders made by defendant.

3. Supplemental jurisdiction has been held to be applicable if you have multiple

claims some of which are under the 75000 limit, even if it is a claim of another defendant as

long as diversity exists and the claim arise under the same nucleus of operative facts. (only in

diversity claims)

4. Courts may use discretion to not use supplemental jurisdiction if:

o Complex state law

o No federal question left

5. If a partys claim is dismissed for lack of supplemental jurisdiction and the statute of

limitations runs out you have 30 days to re-file in state court

d. Removal Section 1441

- Transfer is a discretionary change in venue, Removal is the right to move the

case from state to federal court.

- Workers compensation laws of state cannot be removed

1. any case that could be originally filed in federal court can be removed there if the

plaintiff files in state court only in the district and division embracing where the action is pending

2. The entire case must be removed. 3. Only the defendant may remove a case.

a. defendant- any actual party directly adverse to the plaintiff

b. if multiple defendants are involved, they all must join to remove

4. Diversity in removal cases is treated the same as a case originally filed in federal

court

Exception: If case is in state court of ANY defendant, case may not be removed.

a. Diversity must exist at the time the case was filed as well as when

removal is filed

Exceptions:

- If a plaintiff voluntarily dismisses his claim against nondiverse parties in the state court

action, the case can be removed if it meets the other requirements for removal.

- Caterpillar v. Lewis- If a case in which diversity does not exist and the case is

improperly removed but the district court fails to remand any judgment by the court is valid

provided that diversity did exist at the time the judgment was entered.

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If district court recognizes case was improperly removed it must dismiss it

6. Removal based on supplemental jurisdiction must satisfy the conditions as it would if it

was filed originally in federal court.

7. Must file for removal within 30 days of complaint

8. Diversity jurisdiction must be satisfied within 1 year of filing of claim in order to remove 9. Objections to removal must be made within 30 days following filing of notice.

Objections to the subject matter jurisdiction of federal court can be made at ANYTIME.

10. You have 30 days after removal to file a remand.

e. The Erie Problem

1. Erie Rule -- The federal court sitting in diversity must apply the substantive law of the

state in which it is sitting. This can be state statutes or the opinions of the highest court in the

state. This only applies when there is no federal law on point. This overrules Swift v. Tyson.

2. The courts apply the same substantive law as the court of the state where the federal

court is sitting, including the conflicts of law rule.

3. substantive law = law that governs people operating in society (ex: torts, property) procedural law = the way we litigate the rules that we use to litigate an alleged violation

of substantive law

4. Hanna v. Plumer

- Federal court could apply the federal rules of procedure even though the

state rules of procedure may differ. Erie does not void any federal law, it merely applies the

state law in the absence of a federal rule.

- Outcome determination analysis rule has to be outcome determinative

as of the time the choice of forums was made. Once you make the choice of forums, it is no

longer outcome determinative, you must apply the procedural rules of the forum you choose.

The rule was not outcome determinative at the time the choice of forums was made, but

after the forum had been selected and defendant was served by rules of that forum.

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- Presence of federal rule specifically on point -- Enabling Act- in adopting rules of

civil procedure you may not interfere with substantive rights. The fact that a federal

rule has been adopted unless you can prove it violates the enabling act, it must be

applied even if there is contrary state rule. (i.e. FRCP on point will always prevail)

1. General Rule: A federal court sitting in diversity must apply the substantive law of

the state in which it is sitting, and its own procedural law. To determine whether a

law is substantive or procedural, look to the kind of federal law that conflicts with the

state law in the fact pattern, and then apply the appropriate test.

2. Tests:

1. Is there a conflict with a federal rule or FRCP that is on point (can be difficult to

court's inconsistent standards).

o Conflict with a federal practice or FRCP that is not on point:

1. Modified outcome determinative test

1. Where there is a conflict between state law and federal practice,

presumption that state law will prevail

2. However, must ask whether, at the time the choice of forum is made,

the outcome would be different depending on whether the plaintiff filed in state or federal

court

1. If so, state law prevails unless the state practice is not bound upwith the rights and obligations of the state citizens, AND there are "affirmative

countervailing considerations of federal judicial administration present." Then, federal

law prevails.

2. Conflict with a FRCP that is on point:

1. Is the FRCP on point?

1. Yes if can't simultaneously comply with both

2. If not, apply modified outcome determinative test (see above)

2. Is the FRCP valid under the Rules Enabling Act of 1938? To determine:

1. Is the FRCP one of the "rules of practice and procedure" as

determined by Sibbach?

2. Is it constitutional (for our purposes, always)

3. If passes both tests, then FRCP must be applied. HW, if fails one or

both tests, state law must be applied.

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**Special note: no case has ever held a FRCP to be beyond the scope of the REA of

1938.

2. Conflict with Constitution-Constitution always wins (Supremacy Clause)

5. When there is no abundantly clear state rule the court may: 1. Follow precedent state court has held in the past

2. Ask for certification from the state supreme court

3. Predict what the state supreme court would rule on the issue based on

growing trends of state supreme courts

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Venue 22/08/2007 21:04:00

VIII. Venue

1391 Venue

Civi action founded solely on diversity may be brought

o 1. A judicial district where any defendant resides (not domiciled, can be temporary

residency), if all defendants reside in the same state (not applicable if you have

more than one defendant who reside in different states)

o 2. A district where a substantial part of the events or omissions giving rise to the

claim occurred, or a substantial (always applicable unless cause of action occurs

outside the country) part of property that is subject of the action is situated

o 3. District where defendant is subject to personal jurisdiction at the time the action is

commenced, if there is not district in which the action may otherwise be brought

(before you can use this option you have to have a case where you cant use

the 1st 2 because there is no valid venue in US).

Civil action not founded solely on diversity jurisdiction may be brought:

o 1. Same as above

o 2. Same as above

o 3. A judicial district in which any defendant may be found, if there is no district in

which action may be otherwise brought.

Corporations are deemed to reside in any judicial district in which it is subject to personal

jurisdiction at the time of the action

o In a state with more than one jurisdiction the corporation shall be deemed to reside

where it has sufficient contacts to subject it to personal jurisdiction, if there is no such

district then where it has its most significant contacts.

An alien my be sued in any district. (But you must have pj over them)

o Dee-K Enterprises v. Heveafil If you have alien defendants and US defendants you

must bring suit in a venue that satisfies the US defendants as well

o The general venue statute (FRCP) overrides special venue laws that place venue

more specifically

An action against the US government or an officer

o where any defendant resides

o where a substantial part of the events or omissions giving rise to the claim occurred,

or a substantial part of property that is subject of the action is situated

o the plaintiff resides if there is no real property involved in the action

An action against a foreign state:

o where a substantial part of the events or omissions giving rise to the claim occurred,

or a substantial part of property that is subject of the action is situated

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o any district where vessel or cargo of a foreign state is situated

o in the district where agency or instrumentality is licensed to do business

o in US District Court for the District of Columbia

Doctrine of a Local Action

Those that have to be brought in a particular location

o If it involves title to real estate it must be brought in the state where real estate is

located

o If a suit is filed by a State to collect state taxes it must be brought in the state

Venue in IL is very similar to Federal Venue

Except you can bring it any county where a significant part of the cause of action took place

You can bring it in the county of residence of any defendant

Corporation is deemed to have residence in a county where it has an office and does

business

1392

Any civil action of local nature involving property located in different districts in the same

State, may be brought in any of such districts.

****When an action is brought in state court federal venue statutes are irrelevant. Cases

removed to federal courts from state courts are similarly not subject to federal requirements venue lies in

the district encompassing the state court from which it is removed.

Forum Non-Conveniens

Doctrine whereby a court meets all the requirements (smj, pj, proper venue) can dismiss the

case if they believe there is a more proper and convenient court in which the action should

be tried.

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Whitney v. Madden forum non conveniens recognized in IL by IL SC

o Has to be filed within 30 days of the pleading

o Intrastate forum non conveniens if its filed in an inconvenient county (out of county

cause of action, out of county plaintff) the court can transfer it to the county more

convenient. (Torez v. Walsh)

Whether a case should be dismissed on forum non conveniens lies in the sound discretion of

the trial court.

o 2 Prerequisites for Motion

Out of state plaintiff

Out of state cause of action

o If you have those you are supposed to consider public and private factors:

Private factors:

Ease of access to source of proof

Availability of compulsory process for attendance of unwilling

The cost of obtaining attendance of the willing

Possibility of view of the premises

Public factors:

Administrative difficulties flowing from the court congestion

Local interest in having localized controversies decided at home

Interest in having a diversity case in a forum that is at home with the

law that must govern the cause of action

Avoidance of unnecessary problems in conflict of laws

The application of foreign law

The unfairness of burdening citizens in an unrelated forum with jury

duty.

Forum non conveniens may not be defeated unless the remedy is so clearly inadequate and

unsatisfactory that it is no remedy at all. You must take into account the public and private

factors listed above. (Piper Aircraft v. Reyno)

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Defendant is required to waive statute of jurisdiction and statute of limitations if the plaintiff is

used in the correct forum

1404(a) Transfer of Lawsuit

civil action may be transferred for the convenience of the parties and witnesses and in the

interest of justice

can only be transferred to a district or division where it might have been brought (must

satisfy smj, pj and venue)

more liberally applied and enforced

cannot be utilized to transfer cases out of the country

Piper used forum non conveniens and not 1404 because the US court cant transfer cases

out of the country

Joinder of Claims

Joining more than one claim by the plaintiff

o A plaintiff can bring as many claims as he wants against the same defendant, but he

doesnt have to join them if he doesnt want to

o If he doesnt join 2 claims that arise out of the same action, he will be barred from

raising it by claim preclusion

o Subject matter jurisdiction and Personal jurisdiction may limit your ability to join

claims

if you are bringing suit under state long arm statute, you cannot bring another

claim that is not governed by long arm statute.

Joinder of Claims by a Defendant

o Crossclaims claim by one defendant against another defendent

o Rule 13 Counterclaims

Compulsory claim that arises out of the same transaction or occurrence

that is the subject matter of the opposing partys claim and does not require

the presence of third parties (court has jurisdiction over)

Are the issues of fact and law the same?

Would res judicata bar a subsequent suit on a counterclaim?

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Is the same evidence involved?

Is the counterclaim logically related to the main claim?

Permissive claim not arising out of same occurrence or transaction that is

the subject matter of the opposing partys claim (court does not have federal

jurisdiction)

o Crossclaims

There are no permissive crossclaims. They must arise from the same

occurrence or transaction that is the subject matter of the opposing partys

claim.

o Permissive Party Rule 20

Plaintiff can join any defendant or other plaintiff as long as the claims meet 2

requirements

Must arise out of same transaction or occurrence or series of

occurrence

Must be a common question of law or fact

Court can separate claims if one of these conditions does not exist

o Rule 42 Consolidation Court may order a joint hearing or trial for any or all

matters on issues in the action

(b) Separate Trials in furtherance of convenience or to avoid prejudice

the court may order separate trials or order a separate trial for any cross

claim, counterclaim, etc.

o Rule 14 Third Party

A defendant has right to file a third party action within 10 days of filing its

answer. Thereafter they must make a petition to the court and the court has

to use its discretion.

Because there is no original jurisdiction over 3rd party defendant they have to

be subject to jurisdiction of court and properly served.

2 requirements

Third Party action must contend that 3rd party defendant is or may

be liable to original defendant

Must rest on fact that if defendant is liable to original plaintiff, third

party will be liable to defendant

Action does not need to be mature enough to bring a separate action

Third party defendant has all rights of a normal defendant and can raise any

defense original defendant has against the original plaintiff

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You cannot sue 3rd party as a defendant just because you think plaintiff

should have sued him originally

Line of liability running from original defendant to third party defendant and

not from third party defendant to original plaintiff

Contribution or indemnification are often grounds for bringing third part action

You are no required to bring 3rd party action you can wait, if you lose then

bring separate suit.

What happens when diversity is destroyed by adding a third party?

o Owen Equipment and Erection v. Kroger

Allowing supplemental jurisdiction in cases such as these would encourage

future plaintiffs to sue only those defendants who were diverse of citizenship

and then wait for the defendants to implead the others.

Neither the convenience of the litigants nor the considerations of judicial

economy can suffice to justify extension of the doctrine of supplemental

jurisdiction to a plaintiffs cause of action against a citizen of the same state in

a diversity case.

Indispensable Parties Section 19

In making a determination whether a case should be dismissed because of failure to join an

indispensable party

o 1. Must determine whether that person is someone who must be joined if feasible

complete relief cannot be given between the existing parties because of

persons absence

if they have an interest in the controversy and that interest may be prejudiced

if not included

the existing parties may be subject to multiple obligations

o 2. If 1, is true, person must be joined unless it is not feasible to join them

if they would destroy diversity jurisdiction

if they would destroy personal jurisdiction

if they object to proper venue

o 3. If it is not feasible to join then, ask whether the case should be dismissed because

of the parties actions or whether you should continue without them

the prejudice of existing parties if not joined

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extent to which prejudice can be avoided by proper shaping of judgment

whether judgment in their absence would be adequate

whether plaintiff would be able to find an alternative forum

Desire to prevent duplicate litigation is not enough to require a permissive but feasible party

tot be joined.

A person does not become indispensable to an action to determine rights under a contract

simply because the persons rights or obligations under an entirely separate contact will be

affected by the result of the action.

Intervention Rule 24

If you intervene you are a party and bound by res judicata

1) Intervention of Right

o When a statute gives you an unconditional right to intervene

o When you have an interest in the controversy and that interest:

Will be adversely effected by the outcome of the controversy

Existing parties might not adequately represent your interest

2) Permissive Intervention (lies in discretion of the court)

o Must have a claim or defense which has a common question of law or fact with that

being litigated

A party may not be bound by a judgment rendered in an action in which he was not a party

even if he had knowledge of the action.

II. Pleadings written statements of the parties Complaint- statement of plaintiff as to why defendant is guilty

Two Types of Pleading

o A. Fact Pleading- plead the facts that constituted his cause of action (used in

Illinois State Civil Procedure rules)

o 1. figure out what your cause of action is will determine your restrictions

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-look at the essential elements of the cause of action in the

substantive law. Prima facie case does not require the pleader to

negate affirmative defenses. Show which facts are needed to prove

the allegations.

o 2. Plead facts under a fact pleading jurisdiction that show that each elementin the prima facie case are present.

A complaint to be proper must be legally and factually sufficient.

All the elements and all the facts adding up to the elements are there.

o B. Notice Pleading- Federal Rule 8- rules for pleading in federal courts

o 1. short and plain statement of the grounds upon which jurisdiction is based

o 2. Short and plain statement of the claim showing the pleader is entitled to

relief

o 3. a demand for judgment for relief the pleader seeks

Look at forms provided in supplement to see how detailed you need

to be

Dont describe the cause of the action but rather the result

Haddle v. Garrison

The purpose of 1985 is not to protect property but to prevent intimidation people who are

going to testify on behalf of the government, there is not reason to insist on a vested const.

property right. At will employment is protected in other areas of law, because purpose of

statute is discourage intimidation, at will employment is a sufficient injury to your property to

constitute a violation of 1985.

A demurrer will not be granted if there is a way to interpret the facts to constitute a cause of

action

Answer to Complaint

First step: respond to complaint. Illinois- 30 days Federal- 20 or 60 days

1. can raise an objection that doesnt have to do with facts/merits Rule 12 (b) motions

will dismiss this cause of action at this time, can be brought against you again

Rule 11- pleading, motion or document

every pleading must be signed by one of the attorney who drafted it unless the client

is pleading pro se (without an attorney)

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Paragraph b can be subject to sanctions if you sign a pleading without 1) having

made an investigation of the facts reasonable under the circumstances, 2) on basis

of investigation is supported by law and fact 3) if you are defendant any denials are

based on factual support or absence of knowledge on facts

Paragraph c: sanction may be imposed either on party for violation of b. who signedthe document or the firm or the person responsible.

Proceeding of sanctions for 11 b may be initiated by motion of the court itself court

must identify what they believe the violation to be and file rule to show cause

Can be initiated by opposing party specifying wherein the rule was violated it has to

be served after 21 days of allowing the party to withdraw the complaint. Attorneys

fees may be awarded to party who wins motion.

Sanctions are never to be more severe than to deter future violations:

1) non monetary

2) penalty to be paid to the court

3) payment to other side for the costs the other side has incurred because of the

violation of the rule

o Limitations: Client can never be held liable when the complaint is insufficient

in law, monetary sanctions cannot be awarded on courts initiative before

there is a voluntary dismissal of claims or settlement of claims

2. Defend case on merits

a. Demurrer facts are true but challenges the legal sufficiency, motion to dismiss,

in federal courts any defense raised by a pre-answer motion may be

raised in the answer. Rule 12. If you dont file a pre answer motion

you can raise it in an answer.

judgment based on the pleadings, look solely at the pleadings and if

everything stated is true, is there a cause of action

o NON WAIVEABLE: Subject matter juris, failure to join indipensable party,

failure to state claim in which relief can be granted

o WAIVEABLE: the other four (improper service of process, improper process,

improper venue, personal jurisdiction failure) are waived if they are not

brought in pretrial motion or if you dont file pre-trial motion, in the answer

**Removal does not waive your right to object to personal jurisdiction

b. Traverse denial of one of the essential allegations

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o Zielinski v. Philadelphia Piers, Inc.

1. Any allegation of the plaintiffs complaint that is not denied by the

defendant stands admitted for purposes of the trial.

2. If a denial is issued it must be a proper denial, which makes it clear

what you are denying and not denying. Cant have a misleadingdenial. Must specify which claims you are denying and which you

admit to be true. You may deny by saying you have no knowledge if

you dont know if allegation is true or not.

c. Affirmative defense

o Layman v. Southwestern Bell Telephone Co.

The defendant issued a general denial but then entered an easement

which is an affirmative defense into evidence. You cannot raise an

affirmative defense at trial you must plead it in your answer.

o If you plead an affirmative defense when it isnt one, the defendant may have

the burden of proof at trial.

Every defense shall be asserted in responsive pleading with exceptions in 12(b)lack of

jurisdiction over subject matter, lack of jurisdiction over the person, improper venue, improper

process, improper service of process, failure to state a claim upon which relief can be granted,

failure to join an indespensible party CAN RAISE ANY OF THESEIN YOUR ANSWER

Christian v. Mattell, Inc.

The circuit court held that the lower courts decision must be vacated because the

courts conclusion on the Rule 11 motion could have been tainted by other misconduct by Hicks

not related to the motion and misconduct which cannot be sanctioned under Rule 11. The case

is remanded so the lower court can have an opportunity to delineate the factual and legal basis

for its sanctions orders. District Courts Rule 11 orders are vacated.

Special Claims: Requiring and Forbidding Specificity in Pleading

Stradford v. Zurich Insurance Co.

Rule 9(b)- Fraud and mistake have to be pledged with particularity which require the

time, place, and nature of alleged misrepresentations be disclosed to the party accused of fraud

Allocation of Burden

All you have to do is plead the elements of your case in your complaint

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Plaintiff only has burden of pleading elements of prima facie case, Defendant has to

prove affirmative defenses

Whoever has the burden of pleading an item has the burden of proving that item at

trial.

Whoever has burden of proof on a point must enter evidence on that matter first maysuffer a directed verdict unless sufficient evidence supports it.

Court said a municipality may be liable but only if its their own policy or procedure

causes the violation and not that it was acting under a respondeat superior.

Gomez v. Toledo

Good faith is an affirmative defense and the plaintiffs failure to state this in his claim

was not grounds for dismissing the case. The good faith defense should be on the

defendant to allege and prove. There is no way to obligate the plaintiff to anticipate

such a defense and to do so would be contrary to analogous areas of law. That

knowledge is within the defendant.

Reply

o Plaintiff response to defendants affirmative defense raised by the defendant.

o Like an answer, if you dont deny facts in answer, they are taken as admitted.

o In federal law, you dont have to reply to affirmative defense unless the courttells you to

o If defendant raises a couterclaim, the plaintiff MUST reply to allegations

Amendments

- the more liberally the courts allow you to change your position the less critical it is if you

make a mistake in your pleadings.

- trial and appellate courts are very liberal when it comes to amending pleadings

Federal Rule 15 governs pleadings/amendments

o Leave to be freely allowed by court when justice so requires

o Given 20 days after pleading is served and no answer has been filed

Beeck v. Aquaslide N Dive Corp.

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Amendments are liberally allowed but the court must weigh the prejudice to the

opposite side in allowing the amendment against the reasons why the plaintiff or

defendant made the amendment (negligence, bad faith?)

Eve of trial amendments- very near the start of trial, court will most likely deny

because it will be too prejudicial under the circumstances but the court does havediscretion to allow it but will grant a continuance to the defense to prepare new

defense

Statutes of Limitations and Relation Back of Amendments

15(c) 1) original complaint must be followed in a timely matter

2) new claim or defense must arise out of same conduct, transaction, occurrence (same

common nucleus of operative fact)

3) One thing you may not do as liberally is: add a new party as a defendant

4) In order to add a new defendant, in addition to conditions 1 & 2 you must satisfy two

more requirements:

o Defendant must have known about the suit before the limitation period

expired

o Defendant knew but for a mistake, he would be named a defendant in the

original case.

Moore v. Baker

The courts often look at whether the defendant was adequately informed in case #1so that the issues raised in the amendment allows him to prepare his defenses and

preserve his evidence. The courts purpose is to protect the defendant.

Bonerb v. Richard J. Caron Foundation

Rule 15 states that leave to amend may be granted freely when justice requires. The

claims in the new and amended claims derive from the same nucleus of operative

facts.

III. Discovery

3 steps in Discovery Process

1. Disclosure only has to disclose those issues which he will rely on in his form of his

case (ex: witnesses)

2. Broad discovery step what is relevant and not privileged

3. apply to judge to narrow or broaden this to include relevant to subject matter of the

case and not just the issues

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Privilege

Right against self incrimination: in a civil case, what may make you liable in a

criminal case. You waive your privilege once you begin talking about the positive aspects (for you)

of the topic

Corporate attorney client privilege: In federal courts, the Upjohn case decided there

was a test for determining: any employee of the corporation may be protected if: 1)

they are talking to attorney because he are an employee 2) he is talking about how

they perform their corporate duties 3) the way he performed his duties is the matter

in litigation or the reason the attorneys advise is being sought.

o In Illinois, only those employees high enough in the corporate ladder to

handle how the attorneys handle the case are considered privileged (control

group theory)

Rules Governing the Scope of Discovery

Davis v. Precoat Metals

Rule #1: Anything that is relevant to the issues of the case and is not privileged,

should be discoverable.

o Relevance = Look to the pleadings as to what the issues in the case are and

then look at evidence you are trying to discover and ask if it will make one ofthese issues more or less likely or lead to information that would, includes

matter that can lead to the evidence

o Can get judge to modify discovery request if it is repetitive or overly wasteful

or burdensome/excessive.

Rules Particularized to Discovery and Methods of Discovery

A. Rules Governing Disclosures

o Rule 26(a)(1)

1. Must provide name and address of each individual likely to have

discoverable information to establish YOUR case unless solely for

impeachment, identifying the subjects of the information

2. Copies of all documents to support YOUR claims or defenses except

for

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3. For a plaintiff, a computation of claimed damages including the amount

of damages for each item you are receiving

4. For defendant, liability insurance coverage that pertains to the incident

o Solely for impeachment- is not used to prove any relevant issue of the case

but rather the credibility of the witnesso There is a 16(b) scheduling conference that will set a schedule when

everything is due (motions, start of trial, discovery info) is to be held within

120 days from the date the defendant is served with process or within

90 days in which the party appears in the case

o 21 days before the scheduling conference the attorneys are supposed to

meet and work out a proposed schedule

o Disclosures are to be made at the conference or 14 days after

o Certain cases are excluded from automatic disclosures (26 (a)(1)(e):

Habeas corpus cases

Federal prisoners pro se action

Other actions (see pg. 72 of supplement)

o Parties may not use other forms of discovery until after meeting required by

26(f) and required disclosures

o Normal sanction for not disclosing information is that you will be barred from

using that at trial

Exception: if it is not harmful (if they learned about it through other

means) Rule 37

B. Interrogatories (Rule 34)- a written question directed to another party, may only be

served by one party to another party part of the lawsuit

o After interrogatories are answered they are sworn in and notorized and

submitted to other side.

o If a question exceeds the bounds of discovery, you may object to it rather

than answer it.

o Should be specific and precise, but not too precise or you may not get the

answer you want.

o Advantage: can make person do a little bit of research into specific numbers

they would have to consult their books in order to answer

o Maximum for federal rules is 25 including subparts

Illinois allows 30

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C. Depositions (Rule 28, 30, 31, 32)- witness is interrogated by opposing counsel but

the scope of discovery governs what questions are being asked

o May be taken of ANY prospective witness

o Advantage of a deposition is its flexibility, can pin person down to be more

preciseo Disadvantages: expensive and time consuming

o Maximum is 10 depositions not exceeding 7 hours, no person may be

deposed twice without permission of the court or other side

Illinois: no limit on number of depositions but time is limited to 3 hours

o If deponent is not a party, court has no jurisdiction over them, so you need to

serve them with a subpoena to make them show up

o Depositions on written ?s may be used if you cant ask an interrogatory but

they are in another state or country and you dont want to depose them in

person (Rule 31)

o How do you take a deposition of a corporation?

Serve them with notice according to 30(b)(6) and set forth the matters

to which you want them to testify. The corporation shall then send an

officer or employee with that knowledge to the deposition

What happens if questioning is off topic? Make an objection on the

record and ask judge to stricken it from record at trial.

If the matter is privileged you can tell the deponent not to

answer the question. If you do this the opposing party mayunder rule 37 motion to make disclosures or cooperate

discovery. Rule 37- may be ordered to answer the question.

If you lose that motion you must pay opponents costs of the

motion including attorneys fees, if you win, the other side will

have to pay cost of motion and attorneys fees

Before you make a 37a motion must include certification

that says you met with the parties and tried to work it out

before filing the motion

C. Production Requests (Rule 34)

o can only be directed to parties in a lawsuit

o non parties can be subpoened by rule 45

o Documentary evidence including computer documents

o Physical evidence (gun, car, etc. )

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o Problems with physical evidence

Destructive testing- sometimes it may be allowed if the information

cannot be gotten in any other way, it will not compromise the evidence

o Specificity with which the request had to be made: specific enough so a judge

can know definitively whether a document falls within in the request (can bemade in categories, doesnt have to name specific documents)

o Can be produced as kept or organized and labeled with each request

D. Physical Examinations (Rule 35)

o If a persons physical or mental status is at issue in a lawsuit, the opposing

party may have the patient examined by a doctor of their choosing

o If you put your condition at issue in the lawsuit, you are subject to

examination

o If you hire an expert in the case, if you are going to call a witness at trial you

will have to produce his report prior to trial. If you are not going to call him as

a witness, you do not have to submit that report

Under Rule 35, if you ask for a copy of the opposing sides doctor

report, you have to submit all doctors reports even if you didnt plan

on using all reports in trial

o Good cause requirement- it is not enough to require physical examination for

another person to challenge your mental or physical health, you must have a

good cause for them to be examined

E. Requests for Admissions (Rule 36)o Not really discovery devices but designed for trial itself

o Normal discovery sanctions apply to requests for admission

o You may serve on the other side any time after original disclosures have

been made request that they admit certain facts for purposes of the trial.

Once a request is served upon a party, they must either admit it (it is

admitted for purposes of the trial), object to it or deny it.

If you refuse to admit it and it is later determined that you didnt have

reasonable grounds to refuse to admit you will be charged costs and

attorneys fees caused by the refusal to admit. Designed to fill the void

caused by notice pleading.

If you dont respond within 30 days you admit it.

Judicial admission- if you admit something in your pleadings or

through a request for admission. This fact is no longer at issue in the

lawsuit.

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Regular/Evidentiary admission- If you say something in your

testimony that can be construed as an admission, that is still an issue

in the lawsuit, the issue is still open and may be refuted. Does not

take the matter out of controversy in the lawsuit, merely goes as

evidence on that particular point.

Rule 26 (g)

o Similar to Rule 11, designed with respect to discovery

o The court may sanction the other side with attorneys fees for failure to

comply with said rule

o

Rule 37 Failure to Make Disclosures

o b. Failure to Comply with Order

May be held in contempt of court for failing to answer a question

o Severe sanctions you lose your case, your case is dismissed

o Sanctions may be imposed there must be a court order ordering you to reply

to discovery rules and you fail to comply with such an order.

May vacate taking of deposition by:

o Moving for protective order under 26 c

o Make for Motion under 26 b2

1. May object to production of materials he claims are privileged and then have other

party file a Rule 37 motion

2. Move for a protective order under Rule 26 c

Under 26 c you are the moving party

Protective Orders under Rule 26 (c)

Before you move for 26 c you must have certification that you made good faith effort

to resolve issue

o To prevent: Annoyance, embarrassment, oppression or undue expense

o If party who thinks the discovery request would cause 1 of the four above

conditions has to make a motion for a protective order to be granted by the

discretion of the court (the court can rule one way or the other without being

reversed (sometimes reviewing court will reverse for abuse of discretion))

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o In exercising the discretion the court is supposed to weigh the importance of

this information to the side that is seeking it against the annoyance,

embarrassment, etc. that it will cost the other side.

o Stalnaker v. Kmart Corp.

Any sexual activities between the witnesses and Graves is relevant,however, to the extent that they show his part to encourage, solicit, or

influence any employee of defendant to engage in such activities.

This information could still be embarrassing and so the parties shall

use this information only for this litigation and shall not disclose it to

anyone outside of this litigation.

o Discovery orders are not normally review-able because they cannot end a

case.

o When a magistrate judge (appointed judges, not an Article III judge and have

restrictions on what they can hear, may not hear dispositive motions (motions

that will end the case)) hears a motion you can always appeal the ruling to

the DISTRICT JUDGE not APPELLATE JUDGE. The District judge may

reverse only on a factual matter if it is clearly erroneous or contrary to law.

Must give some deference to magistrate judge.

o Hickman v. Taylor

Lawyers work product

An attempt to secure the written statements in the lawyers files and

mind must be accompanied with showing of necessity or indicationthat denial of such production would unduly prejudice the preparation

of the petitioners case or cause him harm or injustice.

In IL no showing of necessity is required

o Rule 26(b)(3)Recognized some limitation on discovery

Work product- material obtained by one party in anticipation of

litigation

Two types:

Mental impressions or litigation plans of the attorney

should never be discoverable

The rest of the material prepared for litigation (does not

involve mental impressions) discoverable if there it is

important to case and there is no other way to discover

it.

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o Not limited to an attorney, can be for any

material prepared in preparation or anticipation

of litigation. If it is used for normal business

then it is not work product and not protected.

o The names of witnesses is not protected but thematerials in preparation are

o Work Product privilege in Illinois

Illinois Supreme Court Rule 201 (b) provides that the work product

privilege/protection only extends to the mental impressions or litigation

plans of the attorney only

Absent corporate atty-client privilege Fortenbaugh would have

to turn over info under IL rules

o Expert Testimony: 26 a(2), 26 b(4)

Subset of material obtained in preparation of litigation

Certain disclosures have to be made from experts and the remainder

is governed by normal discovery rules

You have to disclose the identity of any expert you are going to have

testify and in addition their qualifications, opinions , etc. You may take

deposition after getting the disclosures

To be an expert you must be someone who is hired to testify in

preparation of litigation

If the expert isnt going to testify may only be discovered under twocircumstances:

If you ask for other sides files about physical examinations you

would have to turn it over

Work product provision showing necessity, you cant get info

any other way

You have to pay expert his fees for submitting to examination

If you try to discover another witness by the necessity

provision you dont have to pay the other side

Thompson v. The Haskell Co.

Chiquita International Ltd. V. M/V Bolero Reefer

Court in Chiquita said its not the other sides fault you

didnt examine the boat earlier, just because you didnt

do it doesnt mean you get the report of the other

witness.

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Thompson was distinguishable because there was no

way the defendant would have been able to examine

plaintiff at time she was first examined.

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IV. Resolution Before Trial

a. Pre-trial Dispositions

Demur Rule 12 (b)(6)

Discovery Sanctions Rule 26, 36, 37 Dismissal for lack of jurisdiction of the court -1331, 1332

Summary Judgments Rule 56

o A motion when there is no genuine issue of material fact and the moving

party is entitled to ruling of law

Genuine issue: whether reasonable people can differ in their opinions

o Go behind the pleadings and establish facts arent true

o The party seeking the summary judgment always bears the burden of proving

it (burden of production, may be shifted):

By Affadavit:

State facts admissible in evidence not opinions/conclusions

Must affirmatively show that affiant could testify to these facts

at trial

By Discovery:

Documents, depositions, or interrogatories

Should have affidavits authenticating the documents If materials are entered that if taken to be true show there is no

genuine issue of material fact then the burden shifts to the other side

to submit sufficient evidence that there is a genuine issue of material

fact (Bias v. Advantage International, Inc.)

o The test for determining whether there is a genuine issue of material fact is

the same as a directed verdict if affidavits were testimony in court and you

would grant a directed verdict because of it you should grant summary

judgment. If you wouldnt grant a directed verdict then you shouldnt grant a

summary judgment.

o When a persons intent is at issue, summary judgment is not appropriate

o Celotex Corp. v. Catrett

There are two different ways to show your entitlement to summary

judgment:

The strength of your case can always do this

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RULE OF THE CASE: You can get a summary judgment on

the weakness of your opponents case if you can prove 3

conditions:

The opponent must have the burden of proof at trial of

that issue in order to show the weakness of their case They had sufficient time for discovery on that issue

Must have evidence that the other side cant prove it

Default Judgments Rule 55

o Must wait at least 20 days from the time you serve the defendant (60 days if

personal service is waived)

o If your claim has liquidated amount you can ask clerk to enter default

judgment

o If non-liquidated judge must hold hearing to determine amount, if party has

previously appeared he must be given written notice 3 days prior to hearing.

No notice needed if party hasnt appeared.

o Relief from Default Judgment or Order Rule 60 Bill of Review 1 year

limit from when judgment is entered.

You do not need to show a valid defense on the merits but you do

need to show excusable neglect

In Illinois 5-2-1401 within 30 days 2-1401 two year limit but requires both a valid defense on the

merits and excusable neglect

Peralta v. Heights Medical Center

If service of process wasnt proper, no default judgment can be

entered

In a bill of review it must be shown that the petitioner had a

meritorious defense to the action in which judgment was

entered, that the petitioner was prevented from proving his

defense by fraud, accident, or wrongful act of opposing party

and that there had been no fraud or negligence on the

petitioners part.

o

Dismissal for want of Prosecution Rule 41 (b)

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o The extent to which the decision to an arbitrator is subject to review in the

courts.

o There is very limited review of arbitration proceedings, courts do not review

the merits of the controversy, only the procedural fairness of the arbitrator or

if the arbitrator exceeded the powers given to him. (Ferguson v. Writers Guildof America)

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V. Civil Jury Trial

a. When do you have a right to a jury trial?

o In the federal courts the answer is found in the 7th amendment of the

constitution

In suits at common law, where the value in controversy shall exceed$20, the right to trial by jury shall be preserved.

If the remedy you are seeking had its origin in the common law courts

you had a right to a jury trial, if it was from the court of equity

(chancery) you didnt have the right.

Common law remedies trespass, replevin, trover, ejectment, debt,

covenant, assumpsit

Equitable Remedies- injunctions, specific performance, rescission, pg.

548

Amoco Oil Co. v. Torcomian

In a case that contains both claims of law and claims of equity,

you are entitled to a jury trial on the issues of law and the

judge will hear the issues of equity.

The 7th amendment is the only amendment that hasnt been

granted due process in state courts. Therefore there is no

constitutional right to a jury in state court. Most states have

right to jury trial States are free to interpret the right to jury

trial differently than the Federal courts Illinois still follows the clean up doctrine, therefore the plaintiff

has an option to plead the whole thing in one equitable count

with no right to a jury trial or they could divide it into two counts

-- one legal count and one equitable count with either side

having the right to demand a jury trial on the legal count

Right to jury can be waived if you dont follow the proper

procedure file a jury demand within 10 days of the filing of

the last pleading that relates to the legal claim

Remedies that were not in existence in 1791 pose a problem,

but generally if damages are sought you have a right to jury

trial. One of the few exceptions is Title VII civil rights action

employment discrimination (reinstatement for back pay = no

right to jury trial, seek compensatory damages or punitive

damages you do have jury trial right)

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b. Jury Selection

o 3 peremptory challenges (dont have to give reason)

o Unlimited challenges for cause

o Jurors are selected randomly from voter registration and other lists

o Illinois requires 12 jurors, most of the time 8 is sufficient (including 2alternates)

o Unanimous verdict required in federal courts

o Thompson v. Altheimer & Gray

When a juror displays a possible bias the judge should follow up and

ask her whether she would follow his instructions on the law and

suspend judgment until she had heard all the evidence.

o McDonough v. Greenwood

What if prospective juror answers voir dire falsely? You have to show

it was a dishonest answer and not misinterpretation of question and

you must show if they had answered truthfully it would be a clear

grounds challenge for cause.

o Evans v. Leesville- using you peremptory strikes in a way to get a biased

jury. Ex: Moving peremptorily to exclude certain races from jury. Must show

a racial or gender pattern of exclusion then the burden shifts to the other side

to explain their challenge on a racially neutral basis.

c. Trialo Reid v. San Pedro, Los Angeles & Salt Lake Railroad

The court ruled that the plaintiff held the burden to establish the

liability of the defendant by a preponderance of the evidence, if he

does not, a directed verdict should be entered against him.

o All we require in a civil case is for the jury to believe it is more likely than not

to occur (just over 50%).

o Burdens at Trial

Burdens of Persuasion: carries with it the risk of losing if you cannot

persuade the jury that a fact you need to establish to win is more likely

than not true. Plaintiff normally has this burden.

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Summarized by an instruction of the jury: on every issue on

which this party has the burden of proof the jury must decide

for the other side if they think it is not more likely true than not

true.

Only comes into play when the evidence is absolutely andunequivocally true (in civil cases)

Always stays with the party who had it originally.

Defendant has burden of proof with regard to affirmative

defenses

Burden of Production

Can shift

If evidence does not establish it is more likely true than not

true than the judge should direct a verdict against the plaintiff

and for the defendant because he hasnt carried his burden of

production

If the plaintiff carries his burden of production then it shifts to

the defendant to produce enough to cause reasonable people

to differ then it will go to the jury. If he puts in so much

evidence that no reasonable person could find against him

then the burden switches back to plaintiff.

If at any point a party does not carry his or her burden of

production a verdict is directed against him. Leads to directed verdicts

When a viewing all the evidence in favor of the person

opposing the matter the court should issue a directed verdict if

reasonable men could not differ on their opinion

Notes on Page 586

#5 Can you carry your burden of proof on mathematical

probabilities? No. you have to have some evidence

other than the probability.

c. Rule 50 (a), (b) Motion Judgment as a Matter of Law

o Made by losing party

1. Move for judgment notwithstanding the verdict or a new trial

Appealable

Judgment not withstanding the verdict is a declaration that

you won or get a new trial

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Approved by Supreme Court

Additur judgment is inadequate so if

defendant offers to pay more damages

judge wont order a new trial.

Supreme Court does not allowo 3. Newly Discovered Evidence

Must show:

1. Evidence is so critical it would lead to

reverse judgment being entered

2. You were not guilty of negligence in

not discovering it sooner.

o

o Pennsylvania Railroad v. Chamberlain

When equal support is given to each inference in which even

neither can be established, judgment as matter of law must go

against the party who had the burden of production, in this case

Chamberlain. Furthermore, it is not allowable for a witness to resolve

doubt as to which equally justifiable inference shall be adopted which

if accepted will result in a purely gratuitous award for a plaintiff who

has failed to sustain the burden of proof.

o Lind v. Schenley Industries The trial court should view the verdict in the overall setting of the trial,

consider the character of the evidence and complexity or simplicity of

the legal principles which the jury is bound to apply to the facts and

abstain from interfering with the verdict unless it is quite clear the jury

has reached a seriously erroneous result.

d. After the Verdict

o Peterson v. Wilson

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Rule 606(b) prohibits a juror from testifying as to any matter or

statement occurring during the course of the jurys deliberations or to

the effect of anything upon that or any other jurors mind or emotions

as influencing the juror to ascent to or dissent from the verdict except

when extraneous prejudicial information was improperly brought to thejurys attention. The Supreme Court case Tanner v. United States

prohibited the admission of juror testimony to impeach a jury verdict.

o The Final Judgment Rule Section 1291

What is and what is not an appealable order?

Liberty Mutual Insurance Co. v. Wetzel

not an appealable order because the plaintiff did not

receive any of the relief sought in the complaint; it was

not a final judgment and not certifiable under 54 (b)

because there was only one claim.

Rule 54 (b) says that in cases with multiple claims and multiple parties

in which the court enters judgment on one or more but fewer than all

the parties or claims, it may be certified and is considered final and

may not be changed. It may be appealed at that time only. If it is not

appealed at this time you cannot appeal it once the rest of the claims

are adjudicated.

1292 (a) a judgment granting or suspending an injunction even though

it is not final in anyway. This includes preliminary (temporary)

injunctions.

1292 (b) allows a district judge when issuing a non appealable order

but one that involves such a question of law as to which there is

substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termination

of the litigation he may state this in his order and the Court of Appeals

may in its discretion permit an appeal if made within 10 days after the

order provided.

Writ of mandamus not technically an appeal, but a request for an

order to a hire court to compel the trial court judge to take some

particular form of action in the case. Totally discretionary up to the

reviewing court.

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e. Scope of Review

o Anderson v. Bessemer City

Rule 52(a) governs appellate review. It states, findings of fact shall

not be set aside unless clearly erroneous and due regard shall be

given to the opportunity of the trial court to judge the credibility of thewitnesses. A finding is clearly erroneous when although there is

evidence to support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake had been

committed.

o Harmless Error

2111 Appellate courts cannot reverse for errors or defects which do

not affect the substantial trial rights of the parties.

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Res Judicata 22/08/2007

21:04:00

VI. Doctrine of Res Judicata/Preclusion Doctrines

Must have 2 different suits between the same parties (there are exceptions)

o Rush v. City of Maple Heights

o

issues concerning injuries to both persons and property, recovery or denial ofrecovery of damages in one claim does not preclude recovery in another,

unless by an adverse judgment in the first action issues are determined

against the plaintiff which operate as an estoppel against him in the second

action.

o Rule of Restatement of the Judgment Second-- The trend of the decisions

today is to hold all claims arising from the same transaction or occurrence are

considered the same cause of action.

o

The first one has been decided on the merits and now you are asking what is the

impact of case #1 on case #2

a. Claim Preclusion (also known as res judicata)

o Only may be used as defense (by defendant to shield himself from future

litigation on the same matter)

o Includes everything that was raised or might have been raised in the first

cause of actiono Applies whether you win or lose the first case

o Once a cause of action is determined by a court of competent jurisdiction it

may not be re-litigated

1. Deals with same cause of action

All claims arising from the same transaction or series of

transactions are considered the same cause of action

Excluded are causes of action that could not be brought at the

time of the original action

2. Decided by court of competent jurisdication on the merits

Gargallo v. Merrill Lynch

What does it mean to be on the merits?


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According to the full faith and credit clause of the US

constitution, the federal court must determine whether

to give claim preclusion effect to a state court judgment

upon a cause of action over which the state court had

no subj matt jurisdiction by determining whether thestate court would give preclusive effect to such a

judgment.

It cannot be res judicata if the court did not have proper

jurisdiction to decide the case in the first place.

3. Be between the same parties or their privities

Martino v. McDonalds

This case raises the issue of does claim preclusion have a

possible impact for the defendant in the first case? A plaintiff

in case number 2 can be bound by the ruling of case number 1

(if he is defendant in case number 1)

1. Operation of compulsory counterclaim rule claims

in federal courts that must be brought or thereafter

barred. Supplemental jurisdiction applies to claims

arising out of same transaction. If defendant does not

make compulsory counterclaim in first case, he is

barred from bringing it as a cause of action

2. It cannot be inconsistent with the result of case #1.If the plaintiff in case number 2 winning would nullify

the rights determined by the court in the first case it

should not be heard. Case #1 enforced the selling of

the franchise, for the plaintiff to win case #2 the court

would have to rule contrary to the result reached in

case #1 and would nullify the rights established in case

#1.

Civil Procedure Outline From 07

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