Outline Laura Civil Procedure.

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CIVIL PROCEDURE

7 Main Questions.........................................................................................................................................................1

1. Subject Matter Jurisdicition: authority to hear the case......................................................................................1

SMJ for State Courts.................................................................................................................................................1

SMJ for the Federal Courts.......................................................................................................................................2

Federal question Jurisdiction § 1331........................................................................................................................2

Diversity of citizenship § 1332.................................................................................................................................4

Federal Supplemental Jurisdiction/pendency..........................................................................................................7

2. Personal Jursidcition............................................................................................................................................9

Traditional bases of Personal Jurisdicition...............................................................................................................9

Specific Jurisdicition: Long Arm Statutes................................................................................................................11

General Jurisdiction...............................................................................................................................................15

Internet Contacts...................................................................................................................................................15

Jurisdiction based on Property...............................................................................................................................16

Federal Court Jurisdiction-FR 4K............................................................................................................................18

Challenging Jurisdiction..........................................................................................................................................19

3. Notice and Opportunity to be heard.................................................................................................................19

4. Service of Process..............................................................................................................................................20

5. Venue § 1391....................................................................................................................................................23

6. Removal § 1441.................................................................................................................................................26

7. Waiver of Defenses...........................................................................................................................................28

Erie Doctrine..............................................................................................................................................................28

Subsequent Application.........................................................................................................................................31

Ascertaining State Law: How should a federal court determine state law?...........................................................32

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Inverse Erie – When there is Concurrent federal jurisdicition................................................................................33

Specific Federal Common Law...............................................................................................................................34

Pleading.....................................................................................................................................................................35

Heightened Pleading Standards.............................................................................................................................37

Responding to the complaint- The Answer............................................................................................................39

Motions against the complaint..............................................................................................................................40

Amendments of Pleading- Federal Rule 19............................................................................................................41

Relation Back of Amendments...............................................................................................................................42

Sanctions................................................................................................................................................................44

Joinder of Claims........................................................................................................................................................44

Permissive Joinder of Claims- What claims may a P join?......................................................................................44

Permissive Joinder of Parties- Rule 20...................................................................................................................45

Compulsory Joinder of Parties...............................................................................................................................46

Counter Claims.......................................................................................................................................................47

Cross Claims- Federal Rule 13g..............................................................................................................................48

Third Party Claims - Federal Rule 14......................................................................................................................48

Intervention...........................................................................................................................................................49

Impleader- Rule 22, § 1357...................................................................................................................................50

Class Action............................................................................................................................................................50

CLASS ACTION PROCEDURE:..............................................................................................................................50

CLASS CERTIFICATION........................................................................................................................................52

JUDICIAL MANAGEMENT OF CLASS ACTIONS: Rule 23d.....................................................................................57

SETTLEMENT OF A CLASS ACTION: Rule 23e......................................................................................................57

APPEALS: Rule 23f- Permits interlocutory appeal on certification.....................................................................58

ATTORNEY FEES:................................................................................................................................................58

Discovery: Rules 26-37...............................................................................................................................................59

SCOPE OF DISCOVERY........................................................................................................................................60

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DISCOVERY DEVICES...........................................................................................................................................61

WORK-PRODUCT DOCTRINE- Rule 26B..............................................................................................................64

Future of Discovery/1993 Amendments............................................................................................................65

PRE-TRIAL MANAGEMENT.................................................................................................................................66

Summary Judgment- Rule 56.....................................................................................................................................67

Jury Trials...................................................................................................................................................................72

Extra...........................................................................................................................................................................75

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CIVIL PROCEDURE7 MAIN QUESTIONS

Issues with Constitutional Dimensions1. Does the Court have Subject Matter Jurisdiction? Does the Court have the power to

hear the dispute? CANNOT WAIVE SJ- Federalism, Constitutional power of the court

2. Does the Court have Personal Jurisdiction? Do they have power over the defendant? - Due Process Power over D

3. Has the defendant been give notice and opportunity to be heard? - Due Process

Issues without a Constitutional Dimension4. Has the defendant been served with process properly?

- service of process rule been complied with5. Does the court have venue? What court within the system should deal with it? 6. Removal

7. Have any of the preceding 6 issues been waived?

1. SUBJECT MATTER JURISDICITION: AUTHORITY TO HEAR THE CASE

SMJ FOR STATE COURTS

Courts of general jurisdiction, empowered to hear all cases in law and equityo Lacks v. Lacks: Wife challenged the final decree of NY divorce b/c no SMJ. The court held that

the overly stated principle that lack of SMJ made a final judgment absolutely void was not applicable to cases which did not involve jurisdiction, but merely substantive elements of a cause for relief. Lots of evi. that he was NY resident. Litigation over.

the assertion of insufficient residency, though an element of the claim, doesn’t affect the court’s competence to decide this claim

o State courts usually divided up by subject matter for the sake of efficiency and economy- every state makes up their own court structure, ability to transfer backwards/forwards

Ability to hear a case based on nature of the dispute is determined by: state constitution, state statutes, judicial decisions

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SMJ FOR THE FEDERAL COURTS

NOT Courts of General Jur. – LIMITED JURISDICTION: They only have the SMJ given to them through Article 3: must fall under § 1331 or § 1332 (Federal statutes), judicial decisions

The party seeking to invoke the jurisdiction of a federal court has to make an affirmative showing that the case is within the court’s subject matter jd

of limited jurisdiction, authorized to hear 9 categories of subject matter (most important Federal Question and Diversity) Constitution, Article III, § 2 the judicial power of the US shall extend to all cases:

o Arising under the Constitution, laws of the US = Federal Questiono Between a state and citizens of another stateo Between citizens of different stateso Between a state, or citizens thereof, and foreign states, citizens, or subjects

No matter when the deficiency of subject matter jd is noticed, the suit must be stopped and dismissed Rule 12h3

Implementing 1332 of the judicial code

- Federalism concern: 10th Amendment – all powers not expressly delegated to the federal government are reserved to the state. Construe power narrowly so you don’t rip off state judicial power

- “Whenever” no subject matter →Court shall dismiss the action. Rule 12(h)(3)

- Up to parties to state jurisdiction basis unless court already has jurisdiction and claim doesn’t need new jurisdictional support Rule 8

o Capron v. Van Norden (1804): Capron sued D for negligence; D wins, on appeal the Court overturned the verdict because the LC did not have SMJ-diversity of citizenship hadn’t been established

Federal courts will throw out a case for lack of subject matter jurisdiction even if it has already made it to the appellate stage by the time the problem is discovered. Imposes on the courts the obligation to make sure case has SMJ.

FEDERAL QUESTION JURISDICTION § 1331

- The Plaintiff’s cause of action must arise under the constitution, treaties, or laws of the United States.

- Watch out for questions that invoke federal language, but arise under state law

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- Federal law can create a substantive right but not authorize anyone to sue privately under that right

o When a statute doesn’t expressly provide for a private remedy P part of class for whose benefit the statute was enacted? Legislative intent to create/deny remedy- explicit/implicit? Consistency with underlying purpose of legislative scheme to imply

remedy? COA traditionally relegated to state law/mainly a state concern?

- A state law private action which alleges a violation of a federal statute, arises under the laws of the US only if Congress intended to provide a federal remedy for the statutory violation.

o Osborne – whether a federal question is a foundational ingredient (Test not really used now)

o Well-pleaded complaint rule: determine whether the action arises under solely on the basis of what would be in a well-pleaded complaint (defenses would be there)

Can’t just anticipate a federal defense- may never come Louisville & Nashville R. Co. v. Mottley (1908): COA action must arise

under Constitution, laws, or treaties of the US. It cannot be a defense. An anticipated federal defense is not part of the P’s cause of action and doesn’t provide federal question jurisdiction.

o Not enough that plaintiff is asserting a state-created claim which requires interpretation of federal law (typically breach of contract in patent or copyright cases)

o Mere fact that litigation is about federally-created property doesn’t answer the question of whether the cause of action “arises under…” (Harms v. Eliscu)- just because it’s about a copyright doesn’t mean that the action involves a copyright doesn’t mean that arises under- there was no copyright breach alleged.

o Merrell Dow Pharmaceuticals v. Thomson: even though state laws may incorporate fed law, case is not a federal question, no federal jd

Private right of action must be contemplated by federal statute or regulation for this to qualify as a claim “arising under…”

When a statute provides for a private cause of action, the right arises under federal law.

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Here, the court finds that there is no express or implied private right of action. The court holds that this isn’t a cause of action arising under federal law; it’s a state tort action

MD & Smith are distinguishable because the federal issue in the state-created cause of action was so substantial in Smith; it dealt with a Constitutional right.

o Smith v. Kansas City Tiitle & Trust Co. (1921): State law claim, but resolving the dispute required determining the application of federal law—Ps right to relief depended on federal law. SCOTUS says it “arises under” US laws, and federal question subject matter jurisdiction applies even though COA doesn’t state a federal action- because it implicates a federal interest

Since it dealt with tax law, it had the potential to greatly affect the US economy/securities law, etc.

Threshold constitutionality issue

o Moore v. Chesapeak & Ohio RY Co (1934): not a great chance of national significance, etc. P alleged no contributory negligence when his injury resulted from his employers violation of safety laws. He said there was an issue of whether a federal statute had been violated, and so should confer federal jurisdiction. SCOTUS holds that suit didn’t arise under US law, and there was no fed question jurisdiction- contradicts Smith?

Different than Smith because not questioning constitutionality- more like MD

o Grabble: when the fed question embedded in state COA contains a very significant question of fed law, this may warrant fed question jurisdiction. Have to look at “nature of the fed interest at stake”-

Merrell Dow doesn’t create a bright line for this question.

Nat’l interest in providing fed forum for tax litigation is sufficiently substantial to exercise fed question jurisdiction, wouldn’t change division of labor between state and fed courts: no single rule for determining if fed interest substantial enough

o Justification: Interest in ensuring uniform interpretation of federal statutes, special circumstances relating to extraterritorial effect of the statute warrant a federal forum

- No amount in controversy requirement

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- Exclusive Federal Jurisdiction: Certain federal claims must go to the federal court: 1334: bankruptcy; 1337: commerce, antitrust; 1338: patents, copyrights, trademarks; 1343: some civil rights; elective franchise; 1345/1346: US is a P/D

o Reason: national uniformity throughout the federal courts. - Concurrent Federal Question Jurisdiction: Congress has given P the choice of going

to a federal or state court- subject to the right of removal. Federal Employer’s Liability Act (FELA), certain civil rights cases.

DIVERSITY OF CITIZENSHIP § 1332

§ 1332 Codifies Diversity of Citizenship Jurisdiction

Exceptions to diversity: Probate, Matrimonial : deeply imbedded state policy, expertness, competence

Requirements:

- There must be COMPLETE diversity of citizenship Strawbridge v. Curtis (this is a statutory interpretation of judiciary act (precursor to 1332) it is not constitutional)

o Diversity of Citizenship Everyone to the left of the V must be from a different state from everyone to the right of the V. One person can destroy diversity.

o Minimal Diversity Exceptions: Interpleader- when someone has property (stake holder) that says

it’s not theirs but multiple people claim it is their- each entitled to their day in court- says realistically claim is among the claimants and as long as you have one claimant from a different state diversity is satisfied

Mass Disaster Statute § 1369 Required to have 75 deaths in the same event (mass torts in the same event not like a Vioxx- people not event is dispersed)

Class Action Fairness Act of 2005 Available when aggregate amount is exceeds 5

million and there is minimal diversity Citizenship (you can reside in lot of places but you’re a citizen of only one

state) Determined on day of the institution of the action Normal Citizen of the US

o Center of gravity- changes when a person moves with the intention of remaining there indefinitely

o Jurisdiction under diversity if a citizen is suing an alieno Stateless person problem- US citizen but not domiciled in US

→ can’t sue or be sued under diversity

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o Considers aliens residents in the state where they are domicile (to restrict jurisdicition)

Corporations: Have 2 citizenships, 1- where the corporation is incorporated, 2- principle place of business (“nerve center” = executive decisions, “muscle test” = plurality of its services, manufacturing, “total activities test”=center of gravity – state where they are most affiliated)

Unincorporated Associations cumulate the citizenship of all the members of the association Carden v. Arkoma

o Law firmso Teamsters- national labor union- has a member from every

state no diversity unless some form of alienage jurisdiction (not that horrible with labor management relations because normally falls within federal question SMJ)

Representative Actions o Historic rule: that it was based on the representative not the

representedo Congress overrode historical rule for actions involving

children, incompetents, estates- in these categories tested in terms of the citizenship of the represented (deceased, child, incompetent) not the representative.

o Class Actions & Share Holder Derivative Suits- determine citizenship through the eyes of the representative.

- § 1359 Doesn’t allow diversity that has been improperly or collusively made or joined to invoke the jurisdiction of a court- this deals with the manufacturing of diversity not the improper destruction of diversity

o Amount in Controversy Must exceed 75,000

Excluding: interest and cost including: punitive damages, probably statutory attorney fees

Good Faith burden: Court will accept P’s allegation of jurisdictional amount unless the court is convinced to a legal certainty that P can’t recover the jurisdictional amount

Hard to quantify:o Injunction: usually the cost of complianceo P &S indefinite damageso FR 11 Sanction Rule: lawyer has to make the judgment that it

was in good faitho Doesn’t matter the amount you get in the end- filtration isn’t perfect Aggregation

Can aggregate any claims between a single P and a single D even if they have nothing to do with one another

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Can’t add up the claims of multiple P’s against a D, or a single P’s claim against multiple D’s unless the claims are really joint claims and it’s a single indivisible harm (ex. Undivided interest claim)

Class Action Fairness Act § 1332D- Aggregate claims of class member $5,000,000. Minimal diversity. Exception only with a truly localized class action.

Purpose:

- Provide a neutral forum or a national forum where people from different states could litigate without fear of local biases and prejudices

- Reinforced by federal judges who have lifelong tenure, securities lets them escape local parochialisms

FEDERAL SUPPLEMENTAL JURISDICTION/PENDENCY

§1367 ONLY applies to SMJ—doesn’t satisfy PJ or service of process

Codified the seminal case United Mine Workers v. Gibbs Courts have discretionary power to hear jurisdictionally-insufficient state claims deriving from a common nucleus of operative facts in which there is a substantial federal issue

§1367(a) – (codifies Gibbs): grants supplemental jd over all claims that form part of the same case or controversy under Article III

o “Case or controversy” embraces everything within a common nucleus of operative fact (CNOF) (some question here- If C&C is broader than T&O then all 13As are supplemental, or if T&O is broader possible some 13As aren’t supplemental)

Diversity of Citizenship §1367(b): prohibited use of supplemental jd when the case is based solely on diversity jd, and the jurisdictionally insufficient claim is by a plaintiff against persons made a party under:

o Rule 14: third-party defendants No pendant party jurisdiction

o Rule 19 compulsory joinder- not if it destroys diversityo Rule 20: permissive o Rule 24: interventiono If def’s counterclaim is compulsory under Rule 13a (same T&O), then court will

allow ancillary jd over the counterclaimo If counterclaim is permissive under Rule 13b, it will not

Discretionary §1367(c): grants district courts discretion to decline to exercise supplemental jd if:

o State-based claim is novel and complex, or it is really the guts of the action

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o Federal question claim has been dismissed

- Ancillary jurisdiction can only be asserted by D’s not original P’s o Reason: D’s didn’t get a forum choice, so they should have the procedural

advantage of being able to counter claim, cross claim, and assert third-party claims even though there might not be a jurisdictional basis.

1367(d): period of limitations for 1367(a) claims (and any other claim in the same action that is voluntarily dismissed at same time as or after the dismissal of the claim under a) shall be tolled while claim is pending and 30 days after dismissal unless state law provides for longer period

1369: SMJ in Multiparty, Muliforum Litigation

Must establish original, subject matter jurisdiction before you can establish supplemental jurisdiction!

CASE HISTORY UP TO §1367:

Old way: pendant and ancillary jurisdiction o Pendant: when P. appends a claim lacking an independent basis for fed SMJ

jurisdiction to a claim possessing such a basis

o Ancillary: when either P. or D. injects a claim lacking independent fed SMJ via joinder (counterclaim, cross-claim, 3rd party claim) that comes from same T&O as original claim that does have fed SMJ

United Mine Workers v. Gibbs: Gibbs brought suit against UMW and alleged (1) claim under §303 (completely federal) and (2) common law tort claim (state law) [pendent claim jd]

o Prior to this case the state claim would have to be tried separately, in state court (no federal issue and no diversity of citizenship to move it to fed court)

o Court overruled Constitution to allow Gibbs to try both claims together in federal court

o Impact supplemental jd granted when there is a “common nucleus of operative fact” and cases would normally be triable together (i.e. not murder + divorce)

CNOF abandons T&O (“transaction and occurrence” test created by Rule 13a)

CNOF is about trying like things togethero Establishes when we shouldn’t allow pendant jd. When jury likely to confuse +

1367C reasons

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Aldinger v. Howard: court refuses to bring in an additional party under pendent jurisdiction when there is no independent basis of federal jurisdiction (party couldn’t come in on fed question jd)

o Represents the first pullback from Gibbs Owen Equipment & Erection Co v. Kroger: SC refuses to allow pendent jurisdiction for

additional parties (here under D compulsory counterclaim), says independent jd is required for new parties [pendent party jd]

o Convenience of litigants and judicial economy cannot justify extension of supplemental jd over non-diverse defendants

Finley v. US: ruling that ultimately led to enactment of §1367o Finley brought partial diversity suit (original claim was under federal statute,

claim was amended to include state-law tort claims)o SCOUS: P had to choose—pursue state-law claims in state court or pursue claim

against US in fed court said that “all our cases have held that a grant of jurisdiction over claims involving particular parties does not itself confer jd over additional claims by or against different parties”

said they know this isn’t the right solution—invited Congress to rule otherwise- Within one year , §1367 was enacted

Public Policy Reasons for Supplementary Jurisdiction:

Pro: Efficiency (we have everyone here), Fairness to either party so they don’t have to fight on two fronts, Don’t dissuade people from exercising a federal right by allowing them to combine their claims only in state court.

Against: Supplemental jurisdiction expands the scope of the federal courts at the expense of federalism and state courts. It also allows clever lawyers to use supplemental jurisdiction as a facade

2. PERSONAL JURSIDCITION

1. Is there a traditional basis of jurisdiction?2. Does the long-arm statute apply? 3. Is the long-arm statute constitutional?

- Service of process on a person that has been enticed into a jurisdiction by fraud/deceit is not proper and will be set aside Tickle v. Barton

- Defendant can consent to PJ: expressly agreeing to submit to the court, performing acts that constitute a waiver, failing to assert a defense for lack of jurisdiction

- PJ is under the due process clause not Article 3 and can be waived like any individual right

TRADITIONAL BASES OF PERSONAL JURISDICITION

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1. Territoriality- Pennoyer v. Neff (1877) Collateral action, property was not attached (because he didn’t own it at

the time of suit- if in rem property has to be there at the beginning), notification was made by publication when court did not have PJ over Neff.

o A state has complete, total, territorial power within its boundaries. A state is completely helpless outside of its borders. Asserting PJ on a D outside of the state would violate the sovereignty of other states.

- Shaffer v. Burnham (1990) reaffirms Pennoyer territoriality: NY in California on a transitory visit to see his kids, wife asserts CA jurisdiction

o Moral transitory territoriality is sufficient, no requirement for minimum contacts, fair play/substantial justice- premised on traditional values of state sovereignty. Public policy: make clear line, definition; ease of application; virtue of not putting in lots of time, energy, money to figure it out; Scalia doesn’t buy into Brennan notion-making each case different, lots of subjectivity

- Grace v. MacArthur- can’t control which states you fly over, so presence isn’t voluntary and you can’t be served while going over those states.

- Able to assert jurisdiction even if D is there on a transitory basis- Exception: If you are not in a state voluntarily (plane emergency landing,

kidnapping)2. Domicile

- If a place is your domicile they can grab you wherever you are3. Agency

- Corporate agent, partnership agent, individual citizen’s agent -> jurisdiction carriers4. Express Consent Forum selection clauses are forms of consent to jurisdiction. They are

enforceable but they must pass “judicial scrutiny for fundamental fairness” (Brennen and Carnival Cruise, Szuhkent).- Carnival Cruise Lines v. Shute Ds purchased tickets to go on a cruise through a travel agent in

WA. The payment was forwarded to the Carnival headquarters in FL. The ticket included a forum selection clause (FL). Off the coast of Mexico, Mrs. S fell and injured herself. The Shutes filed suit in WA. SCOTUS enforces forum-selection clause, holding that the cruise had a special interest in limiting potential forum, because it eliminated confusion and costs.

o two policies for forum selection clauses: Lessens the defendant’s burden of exposure to litigation in many states, and it conserves judicial resources by not needing to determine jurisdiction. Predictability & convenience.

- Bremmen v. Zapata (1972): Zapata, (TX Corporation) contracted with a German corporation to tow rig from LA to Italy. Contained a forum-selection clause (London). The rig was damages and towed to FL. Zapata sued in FL but SCOTUS enforced the clause.

o Forum selection clause upheld for aliens

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5. Implied Consent- Hesss v. Pawloski PA motorists strikes a MA resident in MA. Court upholds MA statute saying

that the PA resident by driving on the MA public roads consented to appoint a state official as agent to receive process in state

o You are implicitly consenting to appointing the registrar of Motor Vehicles as an agent- legal fiction recognizing the state has the power to exercise its police powers to adjudicate what happens on its highways to make a non-resident motorist responsible and vulnerable if they run down a citizen. State regulatory interest, sovereignty Treated citizens/non-citizens the same. Extends to airplanes, watercraft, motor-bikes, stock fraud

o Demonstrated PJ not as simple as territoriality and sovereignty, sophisticated issue.

6. Waiver- You have jurisdiction if you don’t assert a jurisdictional defense

7. Doing Business/Corporate Presence- When a corporation is doing business in a state it is in effect present there- you can’t

assert jurisdiction even if it is a foreign corporation -> form of territoriality

Continuous and systematic contact with the forum, COA arises from those contacts

Continuous and systematic contact with the forum, COA doesn’t arise from those contacts

Isolated and sporadic contact with the forum, COA arises from those contacts

Isolated or sporadic contact with the forum, COA doesn’t arise from those contacts

Jurisdiction Jurisdiction Jurisdiction depending on circumstances

No Jurisdiction (no fair play and substantial justice)

International ShoeBurger King

Perkins/Benguet Hess/PawloskiGray

Hanson Helicopteros

Specific Jurisdiction General Jurisdiction Specific Jurisdiction

SPECIFIC JURISDICITION: LONG ARM STATUTES

1. Does the Long Arm Statute Apply?

Long Arm Statute/Single Act Statutes: Allows state to assert jurisdiction over a person who isn’t physically present in the state at the time of service.

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- Most say that if a cause of action arises out of the commission of a tortious act in this state, insuring a risk in this state, contracting to apply services in this state, or some modern long arm statutes also include marriage issues.

- Critical Element: the cause of action MUST be related to the forum state. Designated act HAS to occur in the forum state, or its effects must be felt in the forum state.

- A long arm jurisdiction is specific jurisdiction—it arises out of a particular connection between the out-of-state D and the forum.

- 2 Types of Long Arm Statutes: o Long arm statutes that reach the Constitutional Limit:

Rhode Island Here, questions of Constitutionality arise.

o Enumerated Long Arm Statutes NY: exception precludes application in defamation cases. Since it doesn’t reach the Constitutional limit, you determine first whether

the statute applies to the case (statutory construction). Then, if it applies, move to Constitutional issue.

Test Strategy: Statutory Construction/Interpretation – apply facts of the case, try to argue that more than one subdivision of the long arm statute reaches D.

2. Is the application of the Long Arm Statute constitutional?

- International Shoe (1945) WA wanted to tax the Shoe, which was shipping shoes into the state (principle place of business MO, incorporated in DE, distribution around country but not in WA, no offices in WA, no Ks for sale or purchase in WA). The corporation had developed a fiction that it wasn’t really selling shoes there—deals in MO, shipping shoes to people who somehow had bought them in MO though they lived in WA. They rented hotel rooms and showed one shoe to the customer, and the company claimed it didn’t have employees in that state, just independent salespeople.

o Minimum contacts with the forum state → foreseeability, equaling fair play and substantial justice

o Systematic and continuous contact with the state, Enjoying the privileges of operating within a state gives rise to obligations

o Reasonable method of notification Gives jurisdiction and satisfies due process requirement

- Gray v. American Radiator (1961) P (IL citizen) bought a radiator from D in IL. A faulty valve manufactured by Titan Valve (OH) was incorporated into the radiator in PA. The exploding water heater then injured Grey, who brought suit against both

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companies in IL. Titan dismissed—lack of subject matter jurisdiction. SC of IL found that jurisdiction over American Radiator proper under long arm statute, because that company benefited from the protection of the laws of IL. There exists a reasonable inference that its business would result in substantial use/consumption in IL.

o (1) was tortious act committed in forum state? (2) if yes, is the assertion of jd constitutional? Court says tortious act occurs where the consequences of the act are felt (this isn’t the inevitable reading—can be viewed either way) Constitutionality determined based on Intl Shoe and 14th Amend requirement

Stream of Commerce/Purposeful-Volitional Availment

- McGee (1957) no office or agent in CA; insurance company knew it was contacting CA (volitional), probably getting $$ from premiums from the insured from CA and knew of it entered in contract in CAo jd over out-of-state D exists because D took actions that were purposefully

directed towards the forum state (knowingly entered into a transaction with a citizen of a forum state)

- Denckla (1958) PA lady established a DE trust, and moved to FL, where she continued her relationship with trust and then dies. Dispute among heirs as to trust and estate division. FL says it has jurisdiction over the estate of the deceased, but SCOTUS says that FL doesn’t have jurisdiction over DE trust- trust didn’t voluntarily do business in/with FL. Different from McGee where insurance company entered into the K in CA- here began in DE. Don’t want to base it on whether they bailed b/c want stable economic relationships

o contacts must be volitional, cognitive, and beneficial, can’t just be maintaining responsibility as a trustee

o no minimum contacts not fair play, substantial justice to hale it into ct there

o concern not just for convenience, also for territorial restrictions- WWVW v. Woodson The Robinson family (NY) bought an Audi from Seaway motors (NY).

In the course of their move to AZ, the family is hit in the rear in OK, resulting in the explosion of their car and serious injuries. Robinsons sue VW AG (GM Manufacturer); VW North America (importer); WWV (distributor selling cars in NY, NJ, CT); Seaway Motors (retailer) in OK state court, invoking OK long arm statute, because that was the state in which the tortious act occurred. Seaway and WWV moved to dismiss for lack of subject matter jurisdiction.

o Foreseeability isn’t enougho Ds conduct/connection with the forum state must be such that he would

reasonably expect to be hauled into court there. No purposeful availment,

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no minimum contacts equaling fair play and substantial justice. Different from American Radiator where the product was injected into the stream of commerce- here the car was taken unilaterally by the consumer- Hanson “unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum state.”

Importance of predictability→ allowing company to structure itself Didn’t gain from the forum state Marginal revenues don’t justify jurisdiction

o Affirmation of minimum contacts requirement, but also allows other relevant factors to tip the balance:

Forum state’s interest in adjudicating the dispute (McGee) P’s interest in obtaining convenient, effective relief (Hess) Interstate judicial system’s interest in obtaining the most efficient

resolution of controversy. States’ shared interest in furthering social policy.

o DISSENT (BRENNAN): Since the product was a car it seems reasonable to expect it might be carried to different states.

- Burger King (1985) BK (FL corp), issued licenses to MI residents for a 20 yr franchise K. They defaulted on payments, and BK sued in fed ct in FL, invoking FL long arm statute. MI franchisee brings motion to dismiss for lack of personal jurisdiction. SCOTUS finds for BK

o D’s purposefully and volitionally established minimum contacts with the forum state-contractual agreement for 20 years (clear, beneficial, extensive relationship), Michiganders agreed to be bound by rules established by BK in Florida, K had a choice of law provision (not determinative- but indicator of foreseeability, shouldn’t be ignored unless procured by fraud), reasonable, purposeful availment

o plaintiff’s burden to show contacts, then burden shifts to def to show lack of

reasonableness (forum non)

o DISSENT: contract of adhesion-disparity in bargaining power, far from home,

hard to call their witnesses, expensive-they thought they were dealing with the local office

Stream of Commerce- Plus?

- Asahi (1987): Man’s wife killed in a motor cycle accident in CA when tire blows. Sues Cheng Shin (Taiwanese tire manufacturer) and Asahi (Japanese tire valve company). Valve made in Japanshipped to Taiwan, incorporated into tire by Cheng Shinincorporated into bike by Honda.

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Settlement reached with man, so then lawsuit remains between Asian companies. They decide the minimum contacts PLUS is satisfied here, but leave the law pretty murky for us.

- Is a manufacturer who puts their product into the stream of commerce automatically jurisdictionally vulnerable wherever the product alights?

o 4 Justices: Stream of Commerce is enough- vulnerable in California regardless of whether they solicited business there because their product was showing up there in large numbers

o 4 Justices: Stream of Commerce Plus- purposeful availment (advertise, distributor there, service products there, agents)

o Result: Minimum contacts do not make exercise of PJ consistent with fair plan and substantial justice (min interest of forum state/min P interest/state policy)

- Result: Don’t know what rule is-o WV SC: in Asbestos case said stream of commerce was enough, and either

way ads + distributor that’s taking your product to the US and putting it into products is probably stream of commerce plus.

GENERAL JURISDICTION

Defendant’s continuous and systematic association with the forum makes such an intense relationship that it’s not unfair or unreasonable to make the defendant stand and defend himself in the forum over disputes that have nothing to do with the forum.

Contacts standard is tougher than specific or long-arm jurisdiction.

Long arm statutes are irrelevant because they have to do with specific jurisdiction- events in the forum

FinAir Case: found that there was continuous and systematic conduct in the forum that would allow the assertion of jurisdiction, even if they didn’t book flights there- and just gave information

Perkins v. Benguet- acknowledge that it was a Philippians company and that the COA occurred in the Philippians, but said that it was OK to sue in Ohio on a non-Ohio event because of the company’s continuous and systematic contact with the forum.

Helicopteros although there were negotiations that took place in Texas, pilot training in Texas (just part of purchase), funs funneled through Texas (unilateral), one CEO trip, the crash occurred in South America and there weren’t enough continuous and systematic contacts to give Texas general jurisdiction.

o Look at the nature of contacts to determine if they constitute continuous and systematic contact

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INTERNET CONTACTS

- SCOUS hasn’t considered the issue of PJ based on internet contacts- state courts have faced the issue on their own

o Courts now lean towards the Calder Test, or a combination of Zippo and Calder

- Interactive email exchange/phone calls viewed as more evidence of availment than one unsolicited call- forwarded mail not enough.

- Factors in assessing contact with forum: level of interactivity, effect on the forum state, kind of harm alleged

- Asahi- Stream of Commerce plus would be very important here- Cybersnell: need something more than just maintenance of a website to show

purposeful activities directed at the forum- Zippo the likelihood that personal jurisdiction can be constitutionally exercised is

directly proportional to the nature and quality of commercial activity that an entity conducts over the Internet

o Sliding scale test: Active websites where businesses carry out transactions with

residents of the forum state: jurisdiction would be proper Passive websites where information is just available: rarely grounds

for asserting PJ Interactive websites (middle) that permit exchange of information:

Some courts have found that an interactive website alone is enough to establish minimum contacts; others require additional non-internet activity in the forum, regardless of whether the activity is related to the underlying claim. Finally, some courts have required additional conduct in the forum that is related to the plaintiff’s cause of action.

- Calder – effects test (1) commits an intentional act (2) expressly aimed at the forum state (3) causes harm the brunt of which D knows is likely to be suffered in the forum state

- Pebble Beacho Didn’t expressly aim his conduct at California. In Calder test need more than

a foreseeable effect. There was no specific action- no individualized targeting. Internet domain name and passive website alone are not enough. Didn’t purposefully avail himself to the privileges of conducting activities in the forum (don’t take the benefits and protections of the law)

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JURISDICTION BASED ON PROPERTY

In Rem Jurisdiction (when the underlying dispute has to do with the property)

- Could be physical property, or non-physical property like bank accounts, security accounts

- Pennoyer v. Neff because a state is “all powerful” within its boundaries it can adjudicate title and interests in any piece of property within its boundaries no matter who the claimants are.

- Judgments do not get full faith and credit, jurisdiction power is exhausted when the property was exhausted- can’t take the judgment to another state and get it enforced beyond the value of the property.

- Conn. v. Doehr (1991): it’s now considered a violation of due process to attach property w/o prior notice or a hearing, unless there are extraordinary circumstances; 5 Justices also suggested that there should be a bond-posting requirement or other security in addition to a hearing

o Court used a three-part balancing test developed in Mathews v. Eldridge: (1) consideration of the private interest that will be affected by the prejudgment measure; (2) an examination of the risk of erroneous deprivation; and (3) principle attention to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections

Quasi-In Rem – When the underlying dispute has nothing to do with the property, and the dispute may not have anything to do with the forum state – extracting jurisdiction only because we have your property → Has to pass the Shoe Test

o Justification: tie/affiliation with the jurisdiction, benefiting from state’s regulatory structure, foreseeability- know that you have responsibilities in the forum

- Physical property or non-physical property like bank accounts, security accounts- Originally validated in Pennoyer. Inherent fairness that was originally tolerated even

though it was inconsistent with in personam jurisdiction side.- Harris v. Balk (1905): P was a NC merchant who owed D 180$. D was a retailer who owed Epstein

(MD merchant) 344$. P went to MD and Epstein instituted garnishee action to attach the debt Harris owed Balk. Harris consented to pay Epstein the 180$ he owed Balk. Epstein has here basically sued P

quasi in rem. D tried to sue P for his 180$, but SCOTUS says P paid his debt. o extension of quasi in rem jd to debts. The debt follows the debtor.

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- Shaffer v. Heitner (1977) shareholder derivative suit by shareholder that lived in NY, trying to impose liability in from Oregon judgment, against directors/officers who had shares that were “in” Delaware (because Delaware says that the shares are where the company is incorporated not where the owners are) who otherwise didn’t have any contacts with Delaware

o Says that ALL assertions of jurisdiction must be tested against Shoe and progeny- need minimum contacts, fair play, substantial justice for a quasi in rem case.

o Probably (not entirely clear) overrules Harris b/c of req.o No real effect on in rem, because they would already likely satisfy Shoe

progeny requirementso Under this, to have quasi in rem you would have to also reach the level of in

personam If someone is in a state that’s long arm statute goes to the

constitutional limits, no reason to go quasi in rem because there is no full faith and credit around the country for your judgment.

In a state where the long arm statute doesn’t go to the constitutional limits, quasi in rem may give you jurisdiction over things that the long arm doesn’t (like defamation in NY context).

So quasi in rem isn’t completely dead, just mortally wounded When property is worth more than the claim- strategic

decision bugging by holding his assets

FEDERAL COURT JURISDICTION-FR 4K

- Typically use the long arm statute of the forum state in which they are sitting. 4K1Ao Always in diversity cases o Federal Question cases when the statute doesn’t have a jurisdictional

provision in it If it is a federal question case, and there is long arm statute -> not

sure Belief that you can use the constitutional standard

(Shoe/Denkla/Woodson) But those are 14th amendment cases- should we follow the 5th

amendment due process standard- there is none for federal court jurisdiction

Some say use Shoe/Denkla/Woods with the US-> but US is large so may have the fair play and substantial justice inquiry (some indication in Asahi)

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- 4K1B 100 mile radius around the court house for parties joined under rule 14 (3rd Party) or 19 (joinder) (NYC can get people in NJ)

- 4K1C operated by federal statute - If the state long arm isn’t long enough and D isn’t subject to the jurisdiction is

constitutionally OKo 4K2A Response to Omni, in federal question caseo Have to prove that D isn’t subject to jurisdiction in any stateo NO SITUATION IN DIVERSITY WHERE A FEDERAL COURT CAN REACH FARTHER

THAN A COMPARABLE STATE COURTo Due process clause- Shoe/Hanson/Denkla

CHALLENGING JURISDICTION

- Threshold issue- must be made in the answer- If you make a jurisdictional objection under 12b2, proceed to merits, and lose – you

can reassert the jurisdiction question → you don’t waive based on proceedings- Once you’ve raised the jurisdiction issue you can’t collaterally attack based on that

3. NOTICE AND OPPORTUNITY TO BE HEARD

D must be given notice that they are being served, and must be given the opportunity to defend herself.

Notice

Question: As a practical decision is the notice reasonably calculated under the circumstances to give notice?

- Forms of process which by themselves provide notice: o In-hand delivery of summons, delivery by registered mail or certified mail,

ordinary mail, service of process on a person living with D/agent who we believe will transmit the service to D

o Problematic Form: Publication

Mullane Standard: Constitution requires that notice be reasonably calculated, under the circumstances, to give actual notice, and must afford a reasonable time for those interested to appear. What matters is the appropriateness, not whether or not def actually got notice

- High constitutional standard

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- Publication is not reasonably calculated to give actual notice- Sometimes a class though is so large that there isn’t an alternative (rare situation)-

publication is acceptable when beneficiaries aren’t known - Groups to be identified and provided notice appropriately:

o Known beneficiaries (address known) direct notice (by mail in this case) is required

o Unknown beneficiaries (changed address, beneficiary died) use due diligence to find class members; if you can’t then publication may be okay—reasonable effort to give notice needed

o Contingent interests: future beneficiaries get no notice, because not currently vested

- Nail and Mail Ex.

Opportunity to be Heard

- Due process requires that D be given a reasonable opportunity to develop his case- Rule 12a and most state statutes give the D 20 days after service to respond

- Fuentes / Sniadach/ Goldberg: o Decision to issue a writ of attachment/garnishment/replevin/repossession

must be made by a judgeo Judge must make the decision based on a full presentation by the creditor as

to why the creditor believes it has the right to immediate possession Fact-based statement of right to the debt/property made under oath

o Creditor has to post a bond to protect the debtor in case of wrongful attachment or replevin (but bond by itself isn’t enough because it only shows strength in their own belief)

o Debtor must have an immediate right to a hearing on the meritso Result -> you can seize but not dispose of it until the debtor can presento Actions aren’t for important public interest, instead just serving a private

interest, private advantage o The following interest must be taken into account when attaching property

(balancing test): (1) debtor’s property interest, (2) risk of erroneous deprivation, (3) interest of the party seeking remedy Connecticut v. Doehr- current thinking that due process is a balancing test

4. SERVICE OF PROCESS

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- Was service of process executed in the manner prescribed by the service of process rule?

MECHANICS OF SERVICE OF PROCESS

- Must follow the rules of the state, or Rule 4 - Reasonably calculated under the circumstances to succeed (Mullane)

- No fraud/trickery to get individual into state to serve process – but you can flush them out

o Tickle v. Barton (1956): judgment against D was overturned because the Ps lawyer induced the D into the state for the purposes of serving process on him by fraud/trickery. No personal jurisdiction no service.

o Wyman v. Newhouse (1937): Affair between P and D, man fraudulently induced by lover to come to FL by convincing him she loved him and wanted to say goodbye and that she was leaving to see her dying mother. His arrival at the airport was met by a deputy sheriff who served him w process in a suit for $500,000. The man returned to NY (state citizen) and was advised by his atty to ignore the summons. Collateral attack. He did so, default judgment was entered against him, 2nd circuit held the

Judgment was void bc he was induced to come to FL through fraud.

- If you’re voluntarily in state, you are susceptible to service of process.

o State ex rel Sivnksty v. Duffield (1952): while on vacation in WVA, P hit and injured 2 kids while driving. While in jail awaiting trial because he couldn’t post bond, a civil suit was brought against him. The WVA ct held that he was subject to service of process. He didn’t come into the state specifically to defend against a criminal charge; he was there “voluntarily;” though this argument seems specious. If he could have afforded bail, he wouldn’t have been subject to the suit.

- Parties are, at times, immunized from service of process, in the interests of the court: Witnesses, parties, attys who come to a state to participate in a lawsuit; Ps who voluntarily enters state to bring an action; Ds who voluntarily submit to other adjudications there.

METHODS OF SERVICE:

- Personal Delivery: o Natural persons—in hand at house or abode

o Rule 4h: Artificial entities—officer, manager, or general agent, or anyone appt’d by law by the entity

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- Service by Mail (substituted service)—certified mail

o Rule 4d: letter sent with a copy of the complaint and the waiver. D can waive process, but if he chooses not to waive/doesn’t respond, he will be served in person and charged for the cost of hand delivery.

- Service on a Person Residing in D’s dwelling (substituted service)

o Rule 4e2: service must be left with a person of suitable age and discretion who resides at the dwelling.

- Delivery to an agent Authorized by Appt: (Substituted service) Rule 4e2

o Rule 4d1: Service can be provided to an agent if there is evidence he has been authorized by the D.

Claims by an agent that he has the authority to receive process or the fact that an agent actually accepts process is not enough to bind the defendant; there must be evidence that the defendant himself intended to confer such authority upon the agent

Szukhent: : P (NY corp) sued Ds (MI residents) in NY federal court, because they defaulted on farm equipment lease. Lease designated Florence Weinberg (NY) to accept service of process. Ds weren’t acquainted w agent. Agent delivered 2 copies of summons/complaint to Ds with letter stating that documents had been served on her. Also notified D. SCOTUS says that acceptance and transmittal of notice was sufficient for agency to be valid.

party can appoint an agent contractually even when he doesn’t personally know that agent, as long as the agent promptly accepts and transmits notice (even if it doesn’t seem like they are required to).

- Publication:

o Rule 4 doesn’t authorize service by publication

But rule 4e1 says federal court can use the service rules in state where it sits or where service is affected.

State statutes provide that service may be made by publication when the P has demonstrated that there are no other reasonable ways to serve process.

Rarely acceptable.

- Service on an artificial entity

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o Rule 4h: authorizes service to an officer, managing agent or general agent when D is a corporation, partnership, unincorporated association or whatever that is subject to suit under a common name.

- Class Actions

o Sometimes publication + actual notice to a sample of class members suffices.

- International Service

o Have to follow the service of process rules in the country where the person you are trying to serve is → otherwise you won’t get a judgment enforced there

o Consular treaties- specifies a way of serving process bilaterally

o Multinational agreements on service of process- Hague Convention

o If not part of the agreement: long process (class notes P. 26)

RETURN OF SERVICE

Must file a return, disclosing enough facts to show that D has actually been served and given notice to appear in court. Ordinarily this is necessary for the trial court to consclude that it has jurisdiction.

STATUTE OF LIMITATION AND SERVICE

Federal Court: o Rule 3: in fed court, filing of complaint = commencement of the action

o Rule 4m: requires fed ct to dismiss an action when the D hasn’t been served within 120 days of the filing of the complaint (if P fails to show a good cause for not completing service within that time)

o Rule 6: allows P to request extra time to serve summons/complaint

o Rule 12b5: motion to dismiss for insufficiency of service of process

Considered waived if not made in motion or responsive pleading!

State Court: when cause of action is based on state law

o Varies; in some states, cause of action is commenced by service of process.

TERRITORIAL LIMITS OF SERVICE—Rule 4k1

Diversity/federal question cases: service of process may be made

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o Within the territorial limits of the state in which the district court sits

o Anywhere else permitted by state law of the state where the court sits

Rule 4k1b: service of process permitted within a 100 mile radius of the district court, but only applies where out-of-state parties brought in as additional parties to an already pending action.

o Valid parties are 3rd party Ds and “indispensable parties” (Joined under Rule 14 or Rule 19)

Subject to federal interpleader jurisdiction under 1335

Congress can provide for nationwide service in some cases.

Rule 4k1A allows a federal court to “piggyback” on a state long arm statute—process of a federal court may thus be the same as the state in which it is sitting.

Rule 4k2: limited federal long arm provision (1990s). Only applies when individual is not subject to general jurisdiction in any state and no long arm statutes apply. Very rare.

5. VENUE § 1391

Venue deals with the allocation of a case within a court system that has jurisdiction over that case- Jurisdiction over parties must be established first

Venue challenge must be raised particularly early by def, otherwise it is waived Rule 12b3

o Venue is waivable because it is an issue of allocation/convenience/administration, not a constitutional issue

Rules of venue are particular to a system- each has a different set of rules

Three Questions to Determine Proper Venue

1. Does the court have venue under the statutory structure (each state is different)?2. If the court has venue, can the court transfer it?3. If the court has venue, are there situations where we should transfer it anyway – forum

non conveniens?

QUESTION 1. Does the court have venue under the statutory structure?

1. Venue in Federal Actions §1391 which court shall try the action?a. §1391(a) Diversity cases may be brought only in federal court

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i. Where any D resides (not the same as citizenship) if all defendants reside in the same state

ii. Where substantial portion of events occurred or where substantial part of the property is situated

iii. If and only if neither of the first 2 apply, then venue exists in a judicial district in which the defendant is subject to PJ at the time the action is commenced

b. §1391(b) Fed Question & Mixed Diversity/Fed Question cases may be brought only in federal court

i. Where any D resides (not the same as citizenship- can reside in more than one state) if all defendants reside in the same state

ii. Where substantial portion of the events giving rise to the complaint occurred, or where substantial part of the property that is the subject of the action is situated

iii. If and only if neither of the first 2 apply, then venue exists in any judicial district in which the def may be found (usually means wherever PJ exists at time action is commenced)

c. Corporations and Aliens for purpose of venuei. Corporations reside in any district where subject to PJ at the start of the

action §1391(c)ii. Aliens may be sued in any district §1391(d-f)

d. Removal : §1441 (a) says that when a case is removed to federal court, the fed court encompasses the place where the state action is pending, so it’s irrelevant that the fed court wouldn’t have been a place of proper venue originally

e. Local action : in cases involving land, the action must be brought in the state in which the land is located (Livingston v. Jefferson)- never codified in statue; if property is located in more than one state, venue is proper in both §1392

i. Based on the now outdated reasons: of land being very parochial, difficult to know the law of different places, sovereignty tied up so you want that court to decide

ii. Problem defining what is a local action – not hard when it’s the title of land, destruction of things on land (burning of crops/structures) are also probably local actions- but it’s more difficult with trespass, or stealing of natural resources

iii. Transitory action : one in which the court will try the case even though the suit relates to land outside the state (Reasor-Hill) if a local action can’t be brought where the property is because of lack of PJ over the def, the action may be brought in the state where the def resides. This represents a minority view- local action still lives. Really here you’re talking about a products liability action, not actually talking about land.

2. State Courts Factors state courts consider in deciding whether to dismiss for forum non conveniens

a. Whether the plaintiff is a state resident—if so, plaintiff has stronger claim to have case heard in home state

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b. Whether witnesses and sources of proof are more available in different state or county

c. Whether forum’s own state laws will govern the action

QUESTION 2: If the court has venue, can the court transfer it?

Have to have PJ in the Transfer court- Ask all questions again!

1. §1404(a) “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought”

a. Motion to transfer almost invariably made by def, and burden is on movant to show why

b. Transferee forum must be one in which the original claim could have been brought (Hoffman v. Blaski)

c. The law of the transferor court must applyi. Generally only applicable to diversity cases; consensus against applying to

fed question cases2. §1407 Allows cases with the same CNOF to be transferred to a single court for

consolidated pre-trial hearingsa. Cases must be returned to transferor court for trials, unless get parties’ consent

or invoke §1404(a)

QUESTION 3: Situations where we should transfer it anyway—forum non conveniens?

1. Generally forum non conveniens exists because the transfer is impossiblea. Can’t transfer state-to-state, federal-to-state, US to foreign court

2. Forum non conveniens works when it really makes no sense to litigate in the given court3. There is a presumption in favor of plaintiff’s forum choice, so forum non motions and

transfers are rarea. Declaring forum non conveniens results in an actual dismissal or action, so

plaintiff must initiate againb. Because of this harsh outcome, court may grant motion on condition(s):

i. Def identifies an alternative forumii. Def’s consent to jurisdiction in the other forum, waiving statute of

limitations in the other forum…4. Piper Aircraft: plaintiff can’t defeat a motion to dismiss merely by showing that the

substantive law of the alternative forum is less favorable to him than that of the current forum. Here accident, evidence, documents, plane, etc all in Scotland. Court used forum non con even though D’s were Americans

a. Court accepts the possibility that changing forum may affect the outcome, but says need to weigh that possibility with other interests:

i. Private interests convenience of litigants and litigation elements (witnesses, documents, etc), access to proof, enforceability of judgment if one is obtained, advantages/obstacles to a fair trial, does it

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oppress/harass D by enforcing an unnecessary expense or trouble to pursuing the remedy

ii. Public interests which court/venue is really interested in adjudicating the case, administrative problems of cases being piled on, jury duty burden, importance of local issues being solved locally, difficulty of applying foreign law

b. See greater use of the doctrine- it is a check on federal long arm, excessive use of jurisdictional principles- reflects that US is a judicial magnet

c. Reluctance to say that another country’s legal system is inadequate- only in extreme situations like we don’t want to send holocaust victims back to Germany.

d. Remember that unlike transfer which just moves the action to another court, with forum non the action has to be dismissed and P must initiate again- statute of limitations may have run out, have to get PJ over the D in the second forum. Since the motion is made by the D, usually court says that they aren’t going to grant unless (1) there’s an alternative forum (2) D waives SOL defenses that may have accrued since the first action (3) agree to stand as a D in the alternative forum (consent to jurisdiction)

- §1407 Multidistrict Litigation allows cases with the same common nucleus of operative facts to be transferred to a single court for consolidated pre-trial hearings. Cases are returned to the transferor court for trials, unless you can get parties consent or invoke 1404a.

o Appointed by CJ of the USo May give it to a court that had earlier jurisdiction or may have improper

venue but done pursuant to statuteo Lexecon: says that you can only stay there if everyone consents- something

that never happens.

6. REMOVAL § 1441

Removal is a one-way street, no removal from federal → state court EVERY REMOVAL QUESTION IS ALSO A SMJ QUESTION You can only remove an action that could have been brought in a federal court originally

o Well-pleaded complaint rule applies fully on removalo Cannot add up the claim and counter-claim for removal purposes because you

could not originate the action in the federal court. Only original D can remove

o district court has the discretion to keep it, or send it back – whatever makes sense

o Congressionally-mandated right to use a federal forumo Only way you can achieve right is to give D the right to veto P’s choice in a state

forum and choose a federal forum

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o Original D Federal Question → action is removable without regard to the citizenship of the parties

(in state or out of state D can remove) Diversity of Citizenship → D can only remove if they are out-of-stater +

complete diversity +amount in controversy 1367(c) allows the court to remand a claim if state claims predominate You can only transfer after you remove. Removal is considered waived if the D takes a substantial defensive action

(counterclaims P) before filing for removal. Removal must be agreed to by all defendants. Exception – mass disaster, class action –

can be sought by any D b/c they SHOULD go to fed. Removal is time limited & based on complaint. Have 30 days from when basis for

removal appears in the case. Basis for removal is complaint so that, in accordance with Mottley, well-pleaded complaint rule- when removal is b/c of federal question, fed ? must be in complaint.

Certain kinds of actions, by statute, cannot be removed. Under FELA, it would destroy the convenience for the workers if you can remove the case.

1441(C) allows someone to remove on a federal question + on an otherwise unremovable state matter-like a form of supplemental jurisdiction- discretion of the DC to determine the issues or remand

o Protective Jurisdiction conferred by congress to allow judge to decide- otherwise P could try to pollute the whole claim with one purely state claim. Not clear how separate and independent you have to be

Question about whether there is a gap between supplemental claim (T&O) and separate and independent- if there is then there would be a gap cases that couldn’t come into federal court. – constitutionality issue because allows things that wouldn’t be allowed under 1367, can congress create a zone of protective jurisdiction to protect center stuff?

1441(c) does NOT apply to diversity! Suits involving supp claims that derive from a CNOF’ DON’T fall within

1441c since aren’t separate/ independent. Provides for removal/ remand only where federal question claims are independent from state law claims with which they are joined in the complaint. (ie- 1367 claims)

7. WAIVER OF DEFENSES

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- SJ is NEVER Waived- parties can’t consent to it, and court can raise it on their own motion Rule 12h3

o Mottley – court responsibilityo Reason: not a personal matter, it’s a systematic issue that is constitutionally

based in the power of the courts. - PJ, Notice, Service of Process, Venue → all waivable Rule 12h1, 12h2

o All threshold matters, have to assert them by a pre-answer motion or the answer or they are waived. Rule 12b

o Consolidation of Defenses: if you’re going to make a pre-answer motion can only make on involving all of them, and you have to consolidate.

o If you omit a threshold defense in your pre-answer motion, can’t put them in your answer Rule 12g, Rule 12h

- If you make a motion for lack of PJ, notice, process, venue- and you lose- you go forward on the merits and know that the issue is preserved for appeal on the final judgment.

ERIE DOCTRINE

1789 Rules Decision Act – establish lower federal court system, promulgate rules Old Rule Swift v. Tyson Federal courts sitting in diversity had to follow state statutes and constitutions, but did not need to

follow state common law (the “unwritten law”) Story wanted federal courts could pursue general common law, so commercial transactions would be

uniform across the country THIS DIDN’T HAPPEN advent of railroads tore apart the simplistic notion of federal common law, there was forum shopping Black and White Taxi Cab

Rules Enabling Act-2072

o USSC shall have power to prescribe general rules of practice and procedure and rules of evidence for district courts and courts of appeal These rules shall not abridge, enlarge, or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect

10th Amendment: The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people

Erie = supremacy of state substantive lawYork = outcome-determination

Byrd = weight of state policy v. weight of federal policyHanna = collision/conflict of fed and state laws- Federal Rule of Civil Procedure on Point

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- Erie v. Tompkins In a diversity action, a federal court applies the substantive law of the forum state.

o Overruled Swift v. Tysono Inequitable administration of the laws; having 2 parties of common law

would create forum shopping.o Unconstitutional (10th Amendment Reserved Powers clause): nothing in Art II

grants federal courts the power to generate federal common law- substantive law must come from forum state law

Substantive Law: system of rules and duties between people and institutions in society.

There is a difference between congress exploiting an enumerated power, and the court creating their own power that isn’t authorized by the constitution

- Guaranty Trust v. York Was NY free to apply historic equity principles that had been applied in federal courts- known as latches- soft discretionary doctrine or were they bound to NY statute of limitations- with hard automatically applied notions

o Outcome determination, against forum shopping that would provide inequitable administration of the law. Federal court is just another court of the state when sitting in diversity jurisdiction (reconceptualization of federal courts).

o No reference to constitutional Erie basis o Here the action was 100% determinative, Problem: anything can be outcome

determinative, reduced significance/stature of the federal courts, goes against uniform application of federal rules of civil procedure

o Erie could be construed as just limited to substantive rights, but here something that isn’t clearly substantive is still having to apply state law (statute of limitations- substantive in that it terminates the right to sue, procedural in defining a time frame)

- 1949 Trilogoy Cases (How far the court took the outcome det. Notion)o Woods registration requirement for business to bring suit- SC says it falls

under outcome determination of Guarantyo Cohen SC says although FR 23.1 doesn’t require a bond, state law does- in a

diversity case you have to post a bond. Outcome determination because need the bond to get passed the front door. Substantive right because the bond is liability creating

o Ragan(wrongful death- in Kansas the action isn’t commenced by filing the complaint but by serving D, federal action is commenced under FR3 by filing the complaint- Not commenced

by serving D within the statutory period)

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Commencement rule (not SOL like Guaranty) Use Kansas law, not commenced within period → barred

- Byrd v. Blue Ridge injured in a work environment- issue of whether it was covered under workers comp. in the NC state courts would be decided by a judge, under 7th amendment normally be decided by a federal jury

o Form/Mode is synonymous with procedural- so procedural that it doesn’t go under the Guaranty umbrella

o When there are countervailing federal considerations, like the federal commitment to jury trial/distribution of power between a federal judge and a federal jury, this countervailing federal consideration should be balanced against the significance of the state issue

o Strong federal policy (influence of the 7th amendment + distribution of function/modality) v. weak state policy (like administrative convenience here) → Apply Federal Rule (balance)

Erie = No federal Interest, Guaranty= closer to federal interest but trumped by outcome determination

o Not clearly outcome determinative- judge/jury go either way, only potential for OD

o Not a clear situation of forum shopping- may be some form of motivation but not really that big

o Also consider inequitable administration of the law

- Hanna v. Plumer wrongful death action, Mass required in-hand personal delivery service to the

executor within one year of the death, Federal Rule 4 allowed substituted service- once litigation happened time barred from Mass state court

o Approach 1: Aren’t violating Erie or York because there is no outcome

determination differential- at the critical moment both options were open so there wasn’t forum shopping

Argument that it was outcome determinative: state strong interest in process serving, also not simply a process provision because also SOL concern for tolling. State doesn’t look at it.

2: Relevance of federal rule to see balanced federal interest - Application of Byrd principle of Countervailing Federal Consideration

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o Federal rules of civil procedure represent federal policy, promulgated by SC and subject to congressional veto- almost statute- under the supremacy clause of the constitution federal law trumps state law.

o Can’t displace a federal rule regardless of how trivial it is unless it is unconstitutional would go against the rule making power

o The federal rule must be a rule of procedure- and be valid → 1692 (Rules Enabling Act) of the Judicial Code congress has only given court the power to promulgate rules of procedure that don’t abridge, enlarge, modify a substantive right

Could assume same rules apply to Federal Rules of Evidence (should be easier b/c statute)

o Test 1: What do you do if there is no federal rule, but federal practices issue

vs. state issue? Go for the Twin Aims of Erie! Inequitable admin of the laws Ex Ante Perspective: Prevention of forum shopping /outcome

determination 2: what do you do if there’s a FRCP in conflict with a state practice?

Is the rule applicable/on point? (Ragan and Walker) Is the federal rule constitutional? (of course) Is the rule a valid exercise of congressional authority?

2072 Rules Enabling Act Test for validity: abridge, enlarge or modify a substantive state

right If btwn substance and procedure, is it arguably procedural? If

yes, the FRCP applies

SUBSEQUENT APPLICATION

- Walker v. Armco Steel o Test:

For the federal rule trump it has to be sufficiently broad and applicable

Federal Rule must be valid & constitutional o FR 3, although it does declare a commencement principle, is not a

commencement principle in measuring the statute of limitations. Rule 3 measures commencement forward- when responsive pleading must be served, when summary judgment may be made, not intended for the tolling of state statutes of limitations.

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Could be a question as to whether statute of limitations would violate the Rules Enabling Act, or have a forum-shopping/outcome determination issue under York

- Stewart v. Ricoh: court says this is an easy case—there is a fed statute, and fed law is supreme

o Hanna analysis: Is the statute sufficiently broad to control the issue before the court? Does the statute represent a valid exercise of Congress’ authority under Constitution?

o See tension between Erie/York and Byrd/Hanna just because there is a federal statute, court shouldn’t be blind to very valid state interest (here issue is about state substantive contract law)

- Gasperini v. Center for Humanities NY law 5501(c) moves from shocks conscious to a more rigorous “deviates materially” standard, for appellate review of jury awards.

o York analysis leads to the determination that ignoring the judgment award leads to “substantial variation” between federal and state courts and hence would lead to outcome determination.

o The court decides that the federal interest (7th amendment reexamination, which is compelling because this is reexamination of a suit at common law, which the 7th amendment makes specific reference to) and the state interest (the material deviates jury award standard.)

o The solution is applying the state appellate standard at the federal trial level. o Structural mismatch. 59 (erroneous result shouldn’t let verdict stand) would

appear to control. Debate over whether it applies or not- Scalia says that it is sufficiently broad to directly collide. Ginsburg says it doesn’t apply, it being 59, so she can apply the state appellate standard at the federal level.

o The case is an interesting analytical tool and it raises a possibility of Hanna and Byrd analysis. Where there appears to be a collision do we simple apply a Hanna analysis and knock out the state rule. OR do we evoke visions of Byrd and try to accommodate and reconcile the two different systems where we can (is this the spirit of federalism)?

ASCERTAINING STATE LAW: HOW SHOULD A FEDERAL COURT DETERMINE STATE LAW?

- In theory, fed courts are bound by the highest court of the state in which they sit; also bound by intermediate courts of appeal

o Fed judges do at times apply laws of an adjacent state/state whose jurisprudence is compatible with the forum state

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o Most states have enacted certification statutes, allowing fed courts to certify over certain questions to a state court

o Erie Guesso Abstention

- Klaxon v. Stentor: in order to promote desired uniform application of substantive law within a state, federal courts must apply conflicts-of-law rules of states in which they sit (includes choice of law- doesn’t make own conflict rules).

o Reaffirmed by Day and Zimmerman case

o Federal courts applying state law typically attempt to determine how the highest

court in the state would hold in a given case/what law the highest state court would apply

Mason v. American Emery Wheel Works: a state court’s ruling on an issue needn’t be followed by a fed court if that ruling has lost its vitality

o Fed court here rules that a state could would overrule its own precedent

o This case shows how different judges have different opinions on how/what law applied

Whether applying static law or trying to foresee future holdings

Whether fed judge is trying to behave like a trial judge or an appellate judge

McKenna v. Ortho: fed court holds that a state court would reach a given decision based on the actions of the state legislature

INVERSE ERIE – WHEN THERE IS CONCURRENT FEDERAL JURISDICITION

o When you have a federal substantive right that is being adjudicated in a state court (like when there is concurrent jurisdiction on a federally created substantive right like under FELA) a state court should enforce a federal substantive right and act like another federal court.

Dice Inverse Erie/Byrd- State court applying federal court – Supremacy clause rules here (not Erie)- if congress wrote it into the statute we don’t care what the state says. Here there is a strong federal interest (unlike Byrd with weak state interest), and right of jury trial is more important than right not to have a jury trial.

Brown v. Western Railroad court couldn’t apply the GA rule that said “pleadings are construed against the pleader” when it was

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adjudicating a FELA case, instead it had to follow the federal rule that pleadings are liberally construed.

SPECIFIC FEDERAL COMMON LAW

Only applies in certain circumstances; creates federal SMJ (so when create something, you can sue on it); if it applies in state ct, must apply the fed standard (so states must be deferential); Congress is free to change common law via statute

Takes power from the supremacy doctrine and trumps state law. Made up by judges _ congress (activist passivist divide)

1. Substantial federal interest

a. Federal question cases

b. Clearfield Trust: common law controls when government has strong interest. When there is no federal compelling interest, and dispute is between private parties, state law will control.

i. Treasury of US: courts can establish fed common law because of strong interest in the conditions/terms of commercial paper

2. Federal statutes/regulations:

a. When a question exists whether there is a private cause of action for a federal statute or a federal regulation. Meryl Dow

b. Difference between Smith where constitutionality of federal statute made a strong federal interest, Dow where federal interest was lower (federal law for state purpose.

c. Contractor’s defense for federal government

3. Unforseen “gaps” in federal statute (“implied federal law”)

a. Most commonly a lack of limitations

b. Courts have gravitated towards absorbing the most analogous statue of limitations from the state in which it sits- but the result is a federal statute of limitations by federal common law no longer a state statute of limitations.

c. In securities field until recently no statute of limitations. SC decided to make one up because absorbing is hard here and want one that is nationally uniform- congress overrode them by creating a statutory provision.

4. Tradition/necessity/special competence

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a. Foreign relations, admiralty (Aircraft isn’t under here because of tradition)

PLEADING

First phase of the pre-trial process jurisdiction has been chosen, court picked, body of law chosen

1. Service must normally occur within 120 days of filing of complaint2. Answer must be served within 20 days of service of complaint

a. If def is out of state (served via long arm), the time to answer is the state rule (usually longer)

b. If def makes Rule 12 motion against complaint and loses, def has 10 days after denial to answer

c. If def requests waiver and plaintiff grants, def has 60 days from date that request for waiver was sent

3. Reply to counterclaim plaintiff must serve his reply within 20 days after service of the answer/counterclaim

OVERVIEW:

- History of Pleadingo Common Law pleading: built on specific, technical rules, form of action, went

into trial blind no discovery or motion practice. Once filed it couldn’t be amended. Demurrer Difference

o Code pleading: High degree of specificity, fact pleading three functions notice giving, fact revelation, issue formulation

o Modern pleading : Fed Rules greatly simplified structure, has only the complaint and the answer. Only goal to give notice- use discovery/joinder/motion practice to cover other goals.

- Basic Documentso Complaint : initial pleading in a lawsuit, filed by plaintiffo Answer : D’s response, states defenses to each claim and admits or denies

each counto Reply : required if D asserts counterclaim; P can also obtain court order to

allow reply. Otherwise just 2 tiers.

- Low pleading threshold: Doesn’t require COA- Federal courts construe pleadings liberally reading in every conceivable inference

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FR 12bc: P has failed to state a claim upon which relief may be granted. Motion must be denied if under any construction of the pleading, the pleading might be read to indicate that the pleader is entitled to relief

Example of Pleading under the Codes

Gillespie v. Good Year (1963) court asks for a plain and concise statement of the facts constituting a cause of action

o Pleading had to include: what occurred, where, who did what, relationship between D and P, circumstances.

o Wants enough so def can identify the matter in the suit and prepare/protect himself

o Wants enough so court can apply law to the facts stating legal conclusions isn’t enough

o Example of Fact pleading. Problems: what is fact? Can’t plead evidence/conclusions- becomes all semantics. Screens out people that are incapable of giving you the facts. Example of access barrier to make sure that you don’t bring frivolous law suits (perspective issue).

Modern Pleading under the Federal Rules

Rule 8 very low pleading threshold—don’t have to plead facts or a cause of actiono Rule 8a1 must give statement of why this particular court- SMJo Rule 8a2 pleading should be a short, concise statement of facts

No mention of asserting COA, or facts- do have to show entitlement to relief

o Rule 8a3 prayer for relief, where you state what you want (ad damnum) Dioguardi v. Durning: court says the pleading is about notice, and showing that

plaintiff is entitled to relief. Complaint doesn’t have to be well writteno Whether P can prove his claims is different from whether he has pled them

adequatelyo Rule 8a2 (reinforced by 12b6 motion, asking has plaintiff stated a claim?)

claim = entitled to relief Conley v. Gibson: reaffirms simplicity of pleading and Rule 8a2

o Can’t dismiss under 12b6 unless legal certainty that there is no basis for recovery

o Only need to give notice, and grounds- facts are later supplement in discovery

Garcia v. Hilton Hotels: def makes 12e motion for a more definitive statemento Court grants, says it is unreasonable to require D to prepare a responsive

pleading without a more definitive statement of the pertinent facts Questionable decision 12e requires statement to be “so vague and

ambiguous that a party cannot reasonably be required to frame a responsive pleading”

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Generally 12e is a narrow rule with a limited scope of application—just asks can you reasonably prepare a response? Could be judge trying to demonstrate G couldn’t prove it.

Rule 12E (more definite statement) and 12F (motion to strike) are alternatives to 12b6 which makes the whole thing go away → strategy delay/attrition but awareness settlement value increases

Gillespie, Dioguardi show how a different level of particularity is required by different courts

Swierkiewicz No heighted pleading standard in civil rights claims against employers or municipalities, respectively

Twombley (2007) Contrast to Conley. Says that a claim must be plausible.

o You need to show enough factual matter to support an inference of plausibility. “Plausibility” ill-defined. Doesn't need detailed factual allegations but obligation to provide grounds/entitlement of relief needs more than labels, conclusions, and a formulistic recitation of the cause of action. More than speculative, not just facts to create suspicion.

o It may represent a progression of disposition from trial to summary judgment to pleading.

o Complaints traditionally read in light of the plaintiff, although some state systems do the opposite. (Brown v. Western Alabama RY).

o Some might argue that an insufficient complaint can be remedied with limited discovery, but Twombley explicitly rejects this notion. Discusses the unmanageability and cost of discovery- great cost to D, increases settlement value

o Dissent: judge can manage /phase discovery. Probability standard is irreconcilable with rule 8. It is a class divider. Should at least force an answer, doesn’t mean we’d have to go through all of discovery. Cost of discovery only shows mistrust in their role

ARM: role of 12b6 isn’t to figure what is the most plausible, under this opinion anything that rises to the unclear level of plausibility survives. Don’t know if this is limited to antitrust cases/universal, signal that Conley not enough. Now we have Twombley motions- affects entire system

HEIGHTENED PLEADING STANDARDS

o Reason: historically disfavored action, but this is the backbone to most securities cases

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o Many states in defamation actions you have to plead the actual defamatory words

Rule 9 creates different allocations of pleading and proof burden based on claim type Rule 9b requires fraud circumstances to be stated explicitly, but malice/intent

generallyo Concern about frivolous litigation especially with claims that are easy to assert in

our classically disfavored actions, mere allegation of fraud damages reputation. Defense of completed transactions (don’t want fraud to unravel) + want to promote transactions.

o P must plead facts: Who committed the fraud? When was the fraud committed? Where was the fraud committed? Where are the documents? How as the fraud committed?

o Denny v. Carey: P didn’t give Da lot of information; D files 12b6 motion, claiming that Rule 9b places a rigorous burden of pleading on the plaintiff

Court found that the complaint satisfied 9b 9b only requires slightly more notice than would be forthcoming under Rule 8—the requirement is met when there is sufficient identification of the circumstances constituting fraud so that def can prepare an adequate answer to the allegations

Contrast in Denny v. Barber court took opposite view in similar circumstances, upping requirement saying you have to say who/what/when/where→ more common now b/c of more fraud claims being asserted.

Private Litigation Reform Act (PLSRA) 1995: Creates a super-high pleading burden for securities reform. Sneaky provision- no discovery until motions to dismiss have been decided- one’s ability to smoke out complex frauds depends on discovery. Have to do private discovery. Example of controlling substance through procedure

Rule 9c once plaintiff avers generally that all conditions precedent have been performed or have occurred, burden shifts to def to find and identify any conditions precedent that plaintiff hasn’t performed

Rule 9g when items of special damage are claimed, they shall be stated specificallyo “Special damages” are those not foreseeable under such a claim as it is broughto Swierkiewicz v. Sorema: no heightened pleading rules—8a2 should be uniformly

applied unless specifically under Rule 9

Rule 8e2 Alternative/Hypothetical Pleadingo Unlike common law requirements, don’t have to combine in one statement

can set forth either in one count/defense or in separate counts/defenses

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o i.e. I didn’t borrow your pot; when I borrowed your pot it was already damaged; I returned your pot

o Dura Pharmaceuticals Latest rule in this particular issue- may be heightened by Twombley Allows alternative and inconsistent pleadings—which was prohibited

under the Code

Rule 9g → Special Damages o Ziervogel v. Royal Packing: Dargued that certain “special” damages P claimed

during trial weren’t expressly stated in the complaint, and shouldn’t be considered

Court holds that non-obvious physical evidence has to be stated in pleading

Close decision—reasonably people could disagree; court probably making an example to show states that they need to follow Rule 9g

Rule 8a3 claim shall include a demand for judgment for the relief that plaintiff seekso Bail v. Cunningham:

Pursuant to rule 54c D can receive more than in pleadings – 8a3 really just has a notice giving function

Ad danum clause is anachronistic Situation here the difference was relatively small- not resource

determinative.o Reasons for having clause at all: (1) Default Ceiling (2) evidence for jurisdictional

amount (3) Contingent Liability (4) Determines resource investment. Some states have eliminated

o Subject to Rule 11 you can put in any number you want Rule 54c demand for judgment

o Judgment by default shall not be different in kind or exceed amount prayed for in demand

o Except as in default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in pleadings

RESPONDING TO THE COMPLAINT- THE ANSWER

In theory, the answer is supposed to come in on the heels of the complaint, but standard defense technique is to make a lot of motions and delay answering

Typical answer has 1, 2 or 3 sections in it:o Part 1 Response to the complaint responds “allegation by allegation”

Admission

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General Denial: deny each and every allegation (including Jurisdiction) 8b3

Specific Denial: deny specific allegations of particular paragraph or count in complaint 8b3

Qualified Denial: deny a particular portion or a particular allegation Denial of knowledge of information: say you don’t have enough info to

form a belief = denial Rule 8b5 Denial based on information and belief: say reasonably believe

allegation is false If you fail to deny and response is required → Admitted Rule 8b6

o Part 2 Affirmative defenses Modern rules: can respond inconsistently if you don’t have the full story Rule 8c lists 19 affirmative defenses (contributory negligence, duress,

estoppel, etc) “…and any other matter constituting an avoidance or affirmative

defense” have to plead anything like other 19, anything that might surprise other side or they are waived. Better to err on pleading it, includes unavoidable accident/act of god

o Part 3 Defendant’s complaints- When D becomes Aggressor Counter-claims Cross-claims 3rd party claims

Rule 8b – Defenses; Forms of denials

“Denials shall fairly meet the substance of the averments denied”

o Zielinski v. Philadelphia Piers: D filed a general denial Denial was ineffective under 8b requires that D deny everything in

good faith- deceptive pleading doesn’t meet the obligation Here D should have filed a more specific answer, would have warned P

that he sued the wrong Do Rule 11 is about penalties if D denies something in bad faith

Rule 8c – Affirmative Defenses

What fits under the residuary clause? What constitutes surprise?

o Rule 8c was included to ensure there is no surprise as to what defenses will be used

Likely includes any defense that rests on facts particularly within def’s knowledge

MOTIONS AGAINST THE COMPLAINT

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Defenses against the validity of complaint—included either in answer or separate motion

o Rule 12b1 lack of subject matter jurisdictiono Rule 12b2 lack of personal jurisdictiono Rule 12b3 improper venueo Rule 12b4 insufficiency of processo Rule 12b5 insufficiency of service of processo Rule 12b6 failure to state a claim upon which relief may be granted

Must establish that no recovery is possible under any legal theory Usually made before def files answer—after can make a 12c motion for

“judgment on pleadings”o Rule 12b7 failure to join a necessary party (under Rule 19)o Motion for a more definite statement def may make motion under 12e if

complaint is “so vague or ambiguous that def cannot reasonably be required to frame a response pleading”

o Motion to strike if plaintiff has included “redundant, immaterial, impertinent or scandalous” material in complaint, def may move under 12f to have material stricken from pleading

Amendmento If complaint dismissed, plaintiff will almost always have the opportunity to

amend the complaint Plaintiff may automatically amend if motion made before def files answer

Rule 15ao If 12b motion successful after filing answer, plaintiff may amend with court’s

permission (likely)

AMENDMENTS OF PLEADING- FEDERAL RULE 19

- Historically you couldn’t amend pleadings, all systems now have liberal amendment policies especially the Federal courts

Rule 15 first judicial postulate; liberal rules to ensure claims are decided on merits rather than technicalities

If you learn of an affirmative defense during the discovery period you have to go back and amend

15a Amendments (pre-trial)o 15a1: Allowed to amend once without permission/motion/court order

Judgment that this is a preliminary point, no prejudice no reason to waste time. Usually used up quickly

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o 15a2: During pre-trial process, amendments are done only with leave of court or consent of adverse party

“Leave shall be freely given when justice requires”—leave things to discretion of court

Unless there is a very strong reason to deny leave to amend (like you should have known/prejudice D/eve of trial/deep in discovery), court will allow it

o Liberal approach to amendment—by and large, you ask and you get 15b Amendments to Conform to the Evidence (at trial)

o If evidence inconsistent with pleadings is introduced and the other party doesn’t object, the pleadings are automatically viewed as having been amended

o If the evidence is objected to, court may allow the pleadings to be amended and shall do so freely

Burden is on objecting party to show that they will be prejudiced if amendment is allowed

o The deeper into the case, the more resistance towards amendment- still though commitment to having the case fully decided on the motion

o 15b2 If issue not raised by pleadings is tried by parties’ express or implied consent, it’ll be treated like it was raised in pleadings. A party can move even after judgment to amend the pleading to have them conform with evidence. Failure to amend won’t affect trial outcome. (may amend because of res judicata issue- appeals)

.

RELATION BACK OF AMENDMENTS

-

Claims- Code System: allowed to relate back the new material if it arises out of the same

COA of the original claim. o COA- writ system, difficult/vague – restrictive

- 15c Relation-Back of Amendments (after statute of limitations has run out- relating back would allow you to date it back before limitation, justice served by allowing)o Not about whether to permit amendment; the issue is about whether it should

be subject to the statute of limitations. o 15c1: relation-back is permitted by the law that provides the applicable statute

of limitations. Federal question case: the law that provides the statute of limitations is

federal law. So you look at federal common law.

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Diversity case: the federal court should look to the forum state to see what law governs (Erie/York).

o Rule 15c2: claim or defense asserted in the amended plea arose out of the conduct, transaction, or occurrence set forth in the original plea (T&O test).

With the institution of the original action D is put on notice that the T or O is being called into question, so notice has been given in a timely fashion. It is in the interest of justice that P be allowed to challenge a T or O through all different applicable legal theories.

o Rule 15c3: amendment changes the party against whom the claim is asserted and satisfies following conditions:

Must arise out of the same T&O or conduct as prior claim Party can’t be prejudiced in maintaining a defense; they have to know

about the action. Must be served within 120 days of filing the complaint. Correct D must have known, or should have known, that the suit was

instituted and that he was intended party. Essential the party has to receive notice. It’s tricky. Worthington v. Wilson: P sued unnamed police officers, amended

complaint 115 days later to include their names. The D moved to dismiss on grounds that the amended complaint violated the statute of limitations.

Articulates the 15c3 standard. Disallows relating back because of mistake standard.

- Amendments to Pleadings and Erie Problems

o Majority of jurisdictions use the FRCP, but some states don’t use them, and some states don’t use relation back at all. Some use relation back for claims but not parties à Erie problems.

o Can you bring a claim that fits perfectly under 15c2, but you’re in a state that allows relation back?

Under Hanna, there is a federal rule of procedure that deals directly with the issue. Rule 15(c) speaks directly to statute of limitations

But, it may be outcome determinative under Guaranty

You could argue that the rule is invalid in this context because it enlarges a substantive right, namely the temporal characteristic of the claims – a Rules Enabling Act problem

It is not possible to accommodate both the federal and state rules (Gasperini)

o There are inconsistent court of appeals decision as to whether this is an Erie problem or a Hanna problem

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o Under 15(c)(3) you run into the same problem. You can run into a situation in which a party cannot be added under 15(c)(3) but could be added under a more liberal state rule. Or, suppose the reverse – you are in a state with no relation back of parties

o Testing trick can’t relate back to something that was dead when the original action was instituted

- Erie Considerations: with 15c1 and 15c2 relation back is permitted under forum state law of T&O under 15c2. Believe that Hanna says that federal rule trumps state practice.o But you could argue that relation back violates the Rule Enabling Act and is

therefore invalid because it affects a substantive right (length of applicable statute of limitation- not a fit subject for rule making so Hanna doesn’t apply)

SANCTIONS

Lawyer’s signature on the papers (pleadings, motions, etc) is a certification that it is not being presented for an improper purpose (to harass, cause unnecessary delays, or needless cost, not frivolous). Warranty that contentions have evidentiary support and aren’t fabricated. And in denial, that there is evidence to support and reasonably based on information and belief

- Rule 11 Sanctions requires lawyer to sign/certify o Rule 11 requires signature/certification by atty.

o Sanctions deter, don’t punish.

o Court often uses non-monetary sanctions.

admonish on the calendar; some judges write an opinion about how bad the document is and sends it to West for publication (of course, clients don’t read these), or the court will order the document distributed to every member of the firm, or the court will say to the offending lawyer that they have to go to high school and teach a civics class, or give $10,000 to the court’s library

o Sanctions are discretionary not mandatory

o Safe Harbor Provision: 21 days to withdraw a paper that the other objects to. During that period, no sanctions may be imposed.

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o . Continuous obligation to monitor continued viability (not just based on what you thought at the time you filed).

- Surowitz v. Hilton Hotels: ultimately saying that you don’t have to be rich or smart to sue—can sue on a document you don’t understand, can sue without understanding but just because you know you were wrongedo Rule 23.1 requires P’s verification in a derivative action; here plaintiff didn’t

verify suit o SC held that 23.1 is a limited rule, not designed to allow courts to dismiss when

charges of fraud are based on reasonably belief and careful investigation, but P simply doesn’t understand the legalisms

JOINDER OF CLAIMS

PERMISSIVE JOINDER OF CLAIMS- WHAT CLAIMS MAY A P JOIN?

JOINDER OF CLAIMS (Rule 18)

Federal Courts → Since Rule 18 permits any claims to be joined, joinder is proper.

State Court →

If state X follows the federal rule on claim joinder, any claims may be joined by a plaintiff, and therefore joinder is proper.

If state X follows the more traditional rule of demanding that claims be transitionally related to be joined, then, on the facts of the problem given me, since all the claims emanate from a single auto accident/ airplane crash/ contract, the transaction and occurrence requirement is satisfied and joinder of claims is proper.

o T&O Used to be the policy under Codes, still the policy in some states

Rule 18: Party asserting claim (P for claim/CC/CC) for relief may join, either as independent or alternate claims, as many claims as he has against the opposing party—no T&O requirement

o This is permissive, not compulsory making it mandatory might encourage litigation where there isn’t any, would require D to adjudicate in a court they didn’t choose. Secretly compulsory in the sense that res judicata (for same T&O)

o Still have to make sure that you have SMJ (Rule 82- rules don’t effect SMJ)

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o For diversity single P, single D you can aggregate the claims to get amount in controversy.

Rule 42A - If P has lots of claims, and tries to bring them all separately under the judge can consolidate them (on motion or on their own) if they involve a CQ of law or fact

o You can consolidate more broadly than you can join because you don’t need T&O or series of T&O

Rule 42b - If claims are so divergent that things don’t work efficiently or prejudice is created, we can segment out the pieces and court can order separate trials (bifurcation, etc) to avoid the bias/confusion of trying matters together (represents safety valve to the 18 giant intake)

o Overall Enormous trial court discretion because interlocutory.

PERMISSIVE JOINDER OF PARTIES- RULE 20

Exam (2 Sentences) The standard for permissive joinder of parties is CQ and T&O. Since the complaint alleges that all of the defendants were involved in the conspiracy, there is a CQ of conspiracy and a single T&O the formation of the conspiracy.

Universal Test o T&O: any parties whose claims (P) or whose potential liability (D) stem from the

same T&O, or a series of T&Os.

Remember that 13A Compulsory Counter Claim is based on a unitary T&O not a series- so permissive joinder is larger than CCC.

o CQ of law of fact which ties parties together (not necessarily evidence).

Rule 20 = claims arise out of the same T or O + common question (tying all parties together)

o Virtually guaranteed that if there is T&O, there will also be CQo Deals with transactions, not causes of action—so standard isn’t CNOF

Works for joinder of plaintiffs as well as joinder of defendantso Judgment that it’s better to open the door wide than keep it partially closed—

better to try like things together for judicial efficiencyo If joining the permissive party would create prejudice, the judge is free to not

join them.

o Ability to join is good for the D, because you get a more expansive preclusion effect.

Rule 20, under 1367b no supplemental jurisdiction in diversity cases.

COMPULSORY JOINDER OF PARTIES

Question 1: Is there someone out there who should be joined?

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o Rule 19a Necessary Parties without whom that action should not proceed/needed for a just adjudication/who should be joined if possible

o person shall be joined as a party if: 19a1a outsider’s absence prevents granting complete relief to those

already involved: If without the outsider you can’t grant relief to the parties in the candy shop.

Example: Specific Performance, Subdivision of Property, Distribution of Estate/Insurance policy

19a1b outsider will be prejudiced, his rights will be impaired or impeded, if he isn’t joined: If you don’t get the outsider in, the outsider’s rights will be prejudiced.

Example: rights to limited funds 19a1bii: leave an existing party subject to substantial risk of incurring

inconsistent obligations, multiple obligationo Remember that joint tortfeasors aren’t compulsory parties- P has the choice to

pick and choose among joint tortfeasors. Absent joint tortfeasors, almost assume that they should be joined, and try to figure it out.

If the party should be joined (subject to Rule 19a) Can the court join him- Do you have PJ and SMJ?

o Party may be joined under 19a only if court can serve him/get PJ over him, and bringing him in won’t destroy diversity (SMJ)

o 19a is both a party question and a jurisdiction question (SMJ and PJ) If court should join him but can’t, what can they do?

o Rule 19b determination by court when joinder isn’t feasibleo Court has to decide is this person absolutely essential to the action? Can you

proceed without him? 12b7 recognizes a motion to dismiss for failure to join an indispensable

party

o Modern day courts don’t want to dismiss because then no one gets relief. So they don’t want to declare a party indispensible

Certain issues you can’t avoid it: like partitioning lando 19b is an attempt to avoid dismissals under 12b7 judge must determine if

there’s anything he can do to move forward, and at least give relief to the people already involved- Invokes the tradition of the equity judge—do what you can, take a guess at missing party’s claim

Try to figure out claimant’s share and put it in escrow to protect the outsider. Demonstrates you don’t have to dismiss for indispensability. i.e. if there are 3 people involved and one is MIA, maybe assume that person’s claim is for 25%, and give each person 25%—if the person materializes and is actually owed more or less, judge can adjust

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12B Defense- Failure to join a party under Rule 19 equals dismissal- threshold issue that can produce dismissal.

COUNTER CLAIMS

Rule 13a Compulsory Counterclaim any claim arising out of the T&O that is the subject matter of the opposing party’s claim (logical connection- normally temporal)

o If D brings counterclaim, P is required to bring compulsory counterclaims of his own, if they are transactionally related

o If either party fails to assert a compulsory counterclaim, he waives his right to assert it later

o Reason: efficiency and economy, evidentiary overlap because they’re from the same T&O

o Supplemental Jurisdiction: § 1367: CNOF, same case & controversy → even if claim lacks diversity or lacks amount in controversy you can still bring it under court’s supplemental jurisdiction (remember that we don’t know if there is a perfect correlation between CNOF and T&O- before 1367 there was the belief that all compulsory counter claims were ancillary under Gibbs- maybe it isn’t and not all 13A’s are supplemental- lingering feeling)

o No reference to series, so somewhat narrower than permissive joinder of parties

- Clear that you can’t bring an unasserted compulsory CC in a federal court, probably true that you can’t bring it in a state court because the state court would give effect to the federal principle (especially if they had their own CC rule). States aren’t bound to comity. Not stopped by Res Judicata because separate causes of action.

Rule 13b Permissive Counterclaim everything else that isn’t compulsory. Can assert any claim you have

- A pleading may state as a counterclaim any claim against an opposing party not arising out of the T& O that is the subject matter of the opposing party’s claimo New parties may be brought into suit as part of a counterclaim provided there is

jurisdictiono No Supplemental jurisdiction under § 1367

CROSS CLAIMS- FEDERAL RULE 13G

Co parties can Cross-Claim against party at the same level of the action/same tier (don’t go across the V)

Cross-claims must arise out of the T or O that is the subject matter of the original action or a counterclaim therein

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o Tolerate broad counterclaims because they are about the same fight—but cross-claims are limited because don’t want the cross-claims to disrupt the original lawsuit

Cross-claims are thus completely permissive and carry a T&O requiremento However, once get cross-claim under 13g, then obliged by 13a compulsory

counterclaim to file any compulsory counterclaims against cross-claiming partyo Do we allow permissive counter claims in response to cross claims?

Supplemental Jurisdiction: Same T&O, even if there is no diversity of citizenship, or no amount in controversy, it can be supplemental to the base claim- after base claim has original jurisdiction all have supplemental. (T&O – CNOF Issue)

THIRD PARTY CLAIMS - FEDERAL RULE 14

- Impleader/Action for Contribution/Indemnity- Rule doesn’t specifically say T&O says “actions over” but all 3rd party claims must

emanate from the underlying claim logical relationship, series of T&Os, etc- No limit to 3rd Party Practice- The third party defendant can assert any rule 12 defense or rule 13 counter claims,

and may assert any cross claim against other third party defendants.- Also once D brings in a third party D, original P can amend and claim directly against

the third party- Once a new party is brought in under 14, have to raise any compulsory counter

claims under 13a against third party P and original P if it passes the same T&O test- Unlike counterclaim and cross-claim, in effect brings a new action

o Bringing in a new party raises all traditional PJ and SMJ issues, service of process, notice and opportunity to be heard

o If plaintiff can’t get supplemental jd, then has to take claim against 3rd party to state court due to §1367(b)

Owen v. Kroger: If you wouldn’t allow plaintiff to sue Owen directly, shouldn’t allow her to do that indirectly by virtue of the 3rd party defense practice procedure. There was no supplemental jurisdiction because adding destroyed diversity.

Or just wait until you go somewhere where you can get SMJ and PJ

- Any party can move to strike a third party from being added to the original claim, or move to separate the trial if it is a separate T & O

- 1367b- no supplemental jurisdiction over claims made by original P against people who are parties under Rule 14o There is supplemental jurisdiction, same case and controversy, and would have

supplemental if there was a compulsory counterclaim between the parties.

INTERVENTION

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Outsider says he belongs in the case because his interest is not being protected

Always a concern that the outsider will muck it up for those already involved Division between permissive intervention and invention as a right

o Rule 24a: applicant has a right to intervene when either US statute confers an unconditional right to intervene, or Disposition of action may impair or impede applicant’s ability to protect

his own interest Must demonstrate that interest is not adequately represented by

existing parties This rule is the other side of Rule 19a—persons that must be

joined when feasible Property interest usually treated as a matter of right

o Rule 24b: applicant may intervene when US statute confers a conditional right to intervene, or Applicant’s claim or defense and main action have a question of law or

fact in common This rule sounds like other side of Rule 20a—permissive joiner—

though only common question required here, whereas 20a requires T&O and CQ

Much less likely to permit if doing so destroys diversity Efficiency/Economy in including- also binds the intervener No supplemental jurisdiction for permissive intervention—but if there is a

common T & O, then maybe it will be allowed. Intervener either joins the P, D, or takes a different position entirely. Rationale: efficiency, economy 24(c): Procedure. Serve a motion to intervene on the parties under Rule 5. Motion shall

state the grounds and shall be accompanied by a pleading setting forth a claim/defense for which intervention is sought.

IMPLEADER- RULE 22, § 1357

Joinder designed to protect stakeholder (person holding property) that has property that multiple parties are trying to claim from inconsistent claims on property. A way to bring all the claimants together in a single action in order to avoid multiple litigations and inconsistency of results. Used because res judicata doesn’t prohibit subsequent claimants to sue for same property

Proscribed in both a federal statute and a federal rule o §1357: $500 requirement, nationwide jurisdiction (maybe global), creates form

of federal jd that only requires minimal diversity of citizenshipo Rule 22: $75K requirement, no federal national jurisdiction (must use long-arms),

requires complete diversity of citizenship

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New York Life Insurance v. Dunlevy. Personal JUR required over all claimants. o leaves state-court interpleader actions open to only suits where residents are

involved. Most state courts don’t have long-arm broad enough to cover interpleader claimants b/c they aren’t usually doing business in the state.

o Same thing for federal, can’t usually use long-arm statute. Generally governed by FRCP 4, serving process to get PJ. BUT, Congress implemented National Process for interpleader, so can serve them unless they are outside US.

Lundeen v. Cordner Example: MOMA owns Guernica, Picasso dies, they give it to the court because otherwise all manner of folk will sue them for ownership. Then they become a P in the action to try and get Guernica.

Procedure: Stakeholder applies for an order to interplead which is reviewed by the court. Once it is granted, stakeholder can withdraw and let claimants fight it out or remain in the suit to contest certain claims as another claimant.

CLASS ACTION

Designed for efficiency and economy, to avoid confusion of too many parties in court Public interest class actions born with Brown v. BOE In 1960s was vehicle for an extraordinary expansion of federal substantive law—civil

rights, consumer, environmental, safety, etc Current debates: limits of class actions have we stretched it too far?

CLASS ACTION PROCEDURE:

Historically: Every member of class must have claim in excess of $75K for federal courto Appears to go against plain language and intent of 1367, but held in Zahn and

upheld in Abbotto Unlike diversity and venue, which are only required of the class representative(s)o SMJ under federal question if it is antitrust, securities, employment

discrimination 1332-Diversity Statute: Class Action Fairness Act Any class action (or mass action) in

which the amt. in controversy is $5 million or more (any significant class action) now goes to federal court on the basis of minimal diversity of citizenship; Completely different from Strawbridge (complete diversity)

o The court shall decline jurisdiction is more than 2/3 of all plaintiffs and the primary defendants are non-diverse. The court may decline where 1/3 to 2/3 of all plaintiffs and the primary defendants are non-diverse. Remember, this is

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diversity of the class, not the representative (so representative can be non-diverse from D).

o Diversity provision: matched by a removal provision; in the event that P tried to bring it in a state court, D could pull it up to federal court

o Ps lawyers now looking for localized cases (some environmental, some consumers) due to very conservative nature of the federal bench

o State class actions are almost extinct; will see what happens politically soon o Some people think this allows you to create federal common law for class actions

→ but this is dumb because of Erie nothing in 1332 suggests that congress intended to create federal common law for class actions.

Personal Jurisdiction Requirement for Do Phillips Petroleum v. Shutts-although the Court doesn’t apply Shoe to all

members of a class, it’s clear that absent class members are entitled to certain due process rights (these also apply to state class actions because of 14th Amendment due process

There must be adequate representation- 23(a)(4) states that one prerequisite is that the representation must be adequate; no one before said that it was a constitutional matter

Each member of the class is entitled to actual notice and opportunity to be heard of the class action; was sort of assumed, but the Court states it as a constitutional matter; 23(c)(2); images of Mullane-lives on

At least in cases involving money, must give the individual the right to opt out so that no member of a class is compelled to have his/her/its rights adjudicated on a representative basis

In many situations, people will want to opt out: don’t believe in lawyers or litigation, the money isn’t significant to them, or commercially they may be connected with the defendant and must opt out to maintain that relationship

May mean individual action or nothing; own choice of lawyer and forum if individual

o Choice of Law- Shutts: Can’t apply state law when it has no tie/connection with the case Demonstrates issue that disparity in state laws may make a class

unmanageable If class action is litigated and there’s a ruling, res judicata for the issues actually litigated

and necessarily decided; if there’s a settlement, no res judicata collateral estoppel issue Advantages of Class Actions:

o Litigant Value: Access (day in court where otherwise wouldn’t get one because of having an economically insignificant claim)

o Systematic Value: Efficiency/Economy

CLASS CERTIFICATION

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Class certification Class certification requires several prerequisites—certification has become a big deal

o Threshold questions that must be answered before certification; implied prerequisites 23a and 23b

o Importance: Defendant: Avoiding certification in a cases where claims are not

individually viable makes the whole thing go away Plaintiff: Banks are willing to lend money on certification, other lawyers

willing to help, Greatly increases settlement value

Elements of Certification (Most State law modeled after Federal Rule 23)- this is decided by motion

1. Must have a class – an identifiable, discreet group Class – definable group, there is no obligation to identify (because

many times P doesn’t have access to the information needed to identify).

o Must be “precise, objective, and presently ascertainable”. It cannot rely on “subjective criteria or the merits of the case or require extensive factual inquiry to determine who is a class member.” (In re Copper Anti Trust litigation).

o Ex: “People who purchased a particular stock between certain dates”…there is a tendency to over describe- the vaguer the group is , don’t want it to cost more to identify the group than you’ll get in the class.

Critical element of class action need to figure out who is bound by the judgment

Cornerstone of judicial process right to your day in courto Figurative day in court in class actions make sure it’s used

only when appropriate, and make sure all absent class members are protected (so we impose prerequisites)

2. Plaintiff representative must be a member of the class Question of whether representative must have claims that run the

whole spectrum, or if you can mix and match3. Plaintiff gets standing by being a member of the class Numerosity

requirements Rule 23a1- making joinder impractical Class must be large—at least 40-50 people to demonstrate that

the advantages of efficiency and economy of aggregated adjudication trump the individual right to actual (not just representative) day in court.

o Over 100 Easy, Under 40 unlikely, 40-100 depends on case4. Common question of law or fact Rule 23a2

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Class must be tied together my a common question Low threshold—only need normal commonality Efficiency/economy rational

5. Typicality requirements Rule 23a3 Class representative’s claims/defenses must be typical of all the

class members’ claims Want rep to look like class member and have average claim, not

to have spiteful motivation or special arguments Found where each member’s claim arises from the same course of

events and each class member makes similar legal arguments to provide the defendant’s liability. (Marisol v. Giuliani).

6. Adequacy requirements Rule 23a4 Representative and lawyer must be adequate throughout the

case can’t bind absentees unless they are adequately represented

o Shows the important fiduciary responsibility judge has to parties which is greater than in an individual litigation context.

Constitutional, due process requirement- Shutts Representative: Surowitz, don’t care about education or money

but want someone that is willing to play a role in the case and be an independent actor from the lawyer, obligation to meet with lawyers periodically, willing to be disposed, convicted felon may not be allowed, can’t be related to the lawyer

Securities Case Statute: says it should be the party with the greatest loss (ends up being labor unions)

7. Legitimacy requirements Rule 23b Action must fall within a category that’s recognized as a legitimate

class action 23b1 – Anti-prejudice device

o Least used of the three—covers limited fund situationo Certify because someone will be disadvantaged if you don’t (similar to 19A

compulsory joinder)o Separate actions would create a risk of

B1A: Inconsistent/Varying adjudication with respect to individual class members. Separate/individual actions have a risk of coming out differently that would establish incompatible standards of conduct for the defendant.

Example: community issues bonds, some say they are void some say they aren’t- no one knows, inconsistency intolerable or Draft boards

23(b)(1)(B): prejudice to the members of the group-you want equitable distribution

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Issue comes up when companies going bankrupt, limited fund situations (insurance policy, stocks, money); e.g., hip replacement case: net worth of the company worth less than the money asked for; worried about compensation for people whose symptoms hadn’t arisen yet, company so well-respected and good that they didn’t want to put it out of business because it would destroy the value for the shareholders and take away jobs

Lawyers always try to get under this- but rarely successful because of the established standards:

o Probability of Inadequacy of Resourceo Clear in measuring the inadequacy of resources you are

measuring all available assets (not just part) 23b2 – Social action class action: Party opposing the class has refused to act, so final

injunctive declaratory relief is appropriateo Injunction or declaratory judgment where everyone wants same thing

(environment, discrimination, prisoner, due process)- All social actions/public interest

o More of these actions than any other—so no one complains about themo Goal: change behavior or policy prospectively and not to provide individual

compensation for injuries suffered. o Notice isn’t deemed essential in these cases because the injunctive class is

cohesive. o Problem: getting representation, because hard to get paid

23b3 – Consumer cases- Predominance and Superiorityo Not a traditional class – court finds that the question of law or fact common to

class members predominate over any questions affecting only individual members.

Group injured by common practice and all want damages

o Procedural protections into b3 class actions that aren’t there for b1 or b2—make certification difficult- reflects concern that because it isn’t a natural class we must be cautious

Notice must be given to the class members “Court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort” individualized Mullane notice

Very expensive- banks loan on it, and could be part of negotiated settlement.

23E: reasonable notice of settlement, not clear that it needs to follow the Mullane standard

There must be a right to opt out Opt-out privilege is only as good as the notice!

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23B3 : There must be a predominance of the common question of law or fact – super commonality

Doesn’t mean every issue must be common (damage issue rarely is!)—but does mean that the vast majority of liability issues must be common

More cases about this than any other part of the class action 23A2 Requires a common issue of law or fact, this goes beyond

that requirement. Damages won’t defeat commonality- damages are always

individualized Predominance Pattern

o Antitrust → easy certification o Accident→ who caused it/what happened, damages ind.o Securities → hard to certify, shareholders may have

common interest in liability under securities law, misrepresentation may be central, but with Private Securities reform Act additional procedural hurtles

Reliance (did the class members rely- knowledge individual question), Conduct over time what caused the loss

o Pharmaceuticals→ individual things like physical issues/dosage/time may eliminate predominance

o Consumer/Insurance policies → easier to certify Must prove that class action is the superior form of adjudication

Sometimes superiority is absent because there is an administrative alternative, but most people say when there is a mass phenomenon with predominance, class action is the best way to go

Remember that it may be superior to tons of other claims, but no class could just make the whole thing go away

Considerationso Class members interest in individually controlling

prosecution/defense in separate actionso Extent/nature of any litigation concerning the controversy

that has already begun by class members o Desirability/undesirability of concentrating the litigation in

a particular forumo Difficulties likely to arise in managing the class action

(what do we think courts are for)→ computers have eliminated a lot of these problems

o All of the complaints about class actions centered here this deals with money, cases are often high visibility

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Case Examples of B3’s

Castano: too individualized meant no certification (exposure to asbestos, difference in smoking habits, issue of defining addiction, etc.), conservative judge de-classified what a New Orleans judge was willing to take on even though it would be long and difficult

After Hyatt, you had IUD cases that went to Los Angeles federal judge-CQ was product defect; goes up to 9th Cir. that reversed, says “no predominance”; 9th Cir.: yes, product defect is important; but every woman who uses the device uses it with different frequency, different occasions, different hygiene, etc.

Asbestos class action of school districts claiming reimbursement to comply with EPA mandate that asbestos be removed from schools in Philadelphia; 3rd Cir. leaves it alone, goes up on mandamus-“it’s a property case”

Agent Orange: basically the IUD case; problem: every US soldier in Vietnam had different experience with the chemical-how often, temperature, jungle or open territory; did go through-governing contractor defense (Boyle in USSC); defense is common, predominating

HIV/Hemophlia- didn’t certify but said that because each of the claims were worth 1-5 million there was the concern that one bad jury would ruin it for everyone. Since there was no necessity of aggregation and 17 of the cases were already actually litigated, decided that class action could be a bad bet

Tobacco- “all those addicted to tobacco that could not break the addiction”- didn’t explain how the class could be manageable

Vioxx- people have admitted that certification probably won’t happen but to deal with it company willing to put up money for all people that makes claims- there is a grid 85% have agreed like an “opt out” class action

Tort Actions: Class action normally not available in personal injury (not fraud) caseso Single Event Torts/Mass Disasters Ex. Hyatt- Class action more available because

there is a common fault/liability to the class, and there are no defenses. Only individualized determination is damage- which is always individual

o Dispersed Torts Ex. Agent Orange, IUD- difficult

Lawyers will try to avoid classification as B3, will say that “Money is incidental” really it is a B2 in order to avoid the predominance/superiority requirement

Notice under B1 and B2: Not clear if there is a constitutional requirement, general precaution is to give notice for everyone

Hybird class actions requesting injunctive and monetary relief. An area of uncertainty. Most of the time the money is figured to predominate so it is viewed as 23b3. Some have been certified under 23b2 but have required Shutts notice and opt out.

Class action is binding on all members of class who do not opt out

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Decisions to settle class actions must be approved by the judgeo Settlement must be fair, reasonable and adequate—class members must get

notice, and they can choose to object Rule 23e

JUDICIAL MANAGEMENT OF CLASS ACTIONS: RULE 23D Judge acts as a fiduciary for the class; she should act to protect the members of the

class; provide for the fair conduct of the action; ensure proper notice; regulate the behavior of the lawyers and representative parties.

Provision is intended to work along with Rule 16, which provides for judicial management, pre-trial conferences and scheduling and planning b the judge.

SETTLEMENT OF A CLASS ACTION: RULE 23E

Majority of cases settle- risk adverse concern about such high stakes Concern that no one is really looking out for the absent class members.

Judge Approval Required—adversary system breaks down during settlement. Judge thus acts as a fiduciary for the class members.

o Looks to whether case is mature. If the case is immature P required to do due diligence as to the claim’s worth

o Judge has to conduct own inquiry- like a mini trial – P will try to show how the case would have taken years and consumed resources and that the settlement recovered is sufficient

Must be a determination by the court that the settlement is fair, reasonable and adequate.

o For the absentees

o Formal hearing.

For a 23B3 settlement court may require a second opt out opportunity

Settlement of a 23b3 requires class certification and the Shutts protections, expedited because the defendant won’t fight the certification.- Dual motion

Class members must be notified of the settlement terms and be given an opportunity to come in and object.

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o If you don’t take care of objectors, they can appeal, might take more time, halt settlement, maybe reverse.

o X: asbestos litigation. Appellate court said the settlement was inadequate.

Settlement may come very early in the case- maybe even prior to certification

o Suits filed with nearly simultaneous settlement

Benefits: avoid litigation

Bad: judge, at embryonic stage, has no record from which to learn about the case and often doesn’t know if the settlement dynamic was a true compromise between fully informed and sophisticated parties

Settlement Cases

Amchem Products, Inc v. Windsor (1997): Class action seeking to achieve global settlement of current AND future asbestos related claims. Same day, parties presented claim, answer, proposed settlement agreement, and joint motion for conditional class certification. District court conditionally certified under 23b3. Appealed based on objections from certain class members; 3rd Cir found predominance lacking; inadequate representatives (had conflicts of interest); no typicality; no superiority. SCOTUS agreed but said it should have considered settlement as a factor as well. Ginsburg holds that the settling parties achieved a compromise with no structural assurance of fair/adequate representation for diverse groups and individuals affected.

o Illustrates the problem in representing people that don’t even know if they’ve been exposed or aren’t yet systematic

APPEALS: RULE 23F- PERMITS INTERLOCUTORY APPEAL ON CERTIFICATION

Good because it allows you to iron out discontinuities and have more homogenous results. Bad because it adds time to the process

Permit, not right to appeal- broader than previous writ of mandamus

ATTORNEY FEES:

Most P’s today are %--contingent fees. – Around 40% (33% normal, 40% trial, 45% appeal)

Because there is only a K with the representative judges have to set the fee- judicial fee award

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Atty must make a motion to obtain fee and this motion can be objected to by members of the class or party from whom payment is sought.

With most state actions, consumer actions, federal actions→ built in provisions saying prevailing party must be awarded reasonable attorney’s fees- recognizes you need incentive for lawyer→ SCOUS: normal billing for this type of work

Contingency fee not under statute→ Reasonable fee must reflect market place for contingent fee lawyers – doesn’t take into account risk (so works against P)

DISCOVERY: RULES 26-37

Centerpiece of civil litigation in this country, #1 area in terms of rule-making activity within the Fed Rules

Historicallyo Equity: discovery designed to preserve testimonyo Code Period: Expanded in certain categories, pleading had the three functions of

fact/revelation, issue formulationExample of Code Limitations: Kelly v. Nationwide Mutual Insurance: decided before the fed rules State law held that discovery could ask about anything relevant to an

issue in the action (as opposed to being restricted to an issue in the pleading) moving towards fed rules

Can’t seek privileged information Information sought must be admissible as evidence

o Federal Rule: limited pleading to notice giving, discovery regime developed Philosophical underpinning leveling the playing field, avoiding trial by surprise

o Everyone has equal access to all relevant information maximizes likelihood that the court gets it right

Discovery enables summary judgment to worko Designed to determine if there is a triable issue, or if there was a way to resolve

the case without trial by enabling judge to work with the pleadings augmented by discovery productivity?

o Trying to avoid trial if there isn’t a reason to go to trial Discovery is labor-intensive, costly, takes a long time Discovery is intrusive at many levels: functioning of entity, privacy, economics of

litigation Only 50% of federal cases have discovery at all, and discovery is only limited to 10

eventso In lengthy, complex civil cases (10%) there are more than 10 events

Three Important Discovery Areas

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1. Scope of Discovery – what is the legitimate area of inquiry?2. Discovery Devices – what methods do the parties have at their disposal to gather

evidence?3. “Work Product Doctrine” – Hickman v. Taylor

SCOPE OF DISCOVERY

Federal system determines scope of discovery, discovery mechanisms

Discovery Prior to Litigation → Basically noneo May think that it would be important for framing a complaint, but pre-action

discovery is narrowly defined in order to avoid harassing people

Rule 26b1 Federal standard broadens discovery scope and limitso Discovery on any matter not privileged that is relevant to the claim or defense of

any party “Relevant to a claim or defense” scope plaintiffs always fight to

maintain this open scope, defendants always fight to narrow it Claim or Defense ≠ issue (although really there are no issues framed in

the pleadings) It was changed in 2003 from “relevant to the subject matter” in order to try to symbolize limiting the scope of discovery

o Good cause anything related to the subject Matter → if there is a difference between earlier and current scope the court has the ability to widen

o Materials don’t have to be admissible at trial to be discovered at this stage→ but has to be reasonably calculated to lead to admissible evidence (can’t just go fishing)

o Doesn’t include Privileged Stuff: Attorney-client, priest-penitent, dr-patient, spousal. These things TRUMP discovery- you can’t get at them. Can waive priv. if you want.

o Rule 26(b)(2)(C) discover can be limited where it is unreasonably cumulative or the burden of discovery outweighs the benefit.

o Rule 26f parties mandated to get together and negotiate discovery before judicial conference

o Rule 34c Persons not parties can be compelled to produce documents or things or to submit to an inspection. But it is done under rule 26 (discovery) and rule 45 (subpoena).

Rule 26c Protective Orders o Protective orders have been a battlefield for over a decadeo Raises issue whether a civil litigation is a public or a private process-

Demonstrates some sense of privacy Discovery drafters thought it was a private process—scope of discovery

much broader than the scope of admissibility

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Many go to alternative dispute resolution to gain the privacy they can’t get in court

o Seattle Times v. Rhinehart: newspaper orders donor list/member list for discovery

Court grants discovery, but with a protective order1. Doesn’t want people using discovery regime cavalierly, for ulterior

motives Illustrates the extraordinary discretion of the trial judge, as far as what

is/isn’t discoverable1. All of these discovery orders are interlocutory—rarely appealable

Although media doesn’t like this case It didn’t keep them from getting the information from other sources, or using it for background just said you can’t use it as a weapon.

Settlemento Parties many times agree that the record will be sealed, and P won’t be allowed

to talk about terms, may also require the return of discovery documents. PP: Argument that through this public threats to health and safety are

hidden (others say OK because normally defect has already been corrected and it would just be embarrassing). Not sure of full effect. Argument that without privacy would reduce the likelihood of settlement and there is a public interest in settlement.

1. Some states have responded with “sunshine in litigation laws” and there is pressure to amend 6c

Scope is Connected to Substantive Lawo Striking questions based on relevance- scope is always contextual o Income discussions if punitive damages are an issue (why P’s love punitive

damages because they widen the scope of discovery)

DISCOVERY DEVICES1. Mandatory disclosure (Rule 26a) automatic obligation to turn over certain

information—regardless of whether anyone asks for it or noto Documents, witnesses, damage computations, insurance policies qualify for

mandatory disclosure These are things that the rulemakers believe are so obvious, central, and

important to getting going that no motion should be needed- mainline basic stuff

o Don’t get to discovery until you’ve gotten through disclosureo Problems

Philosophically: against the adversary system model

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Adds a layer to the process, costs money and consumes time, have to meet and figure out if each side has complied with it

2. Deposition (Rule 27-before action; Rule 30-after action is instituted): can question any person (party or not) under oath regarding subject matter of the case

o Looks like a trial but with no rules of evidence. Adversaries, witnesses sworn, cross examination, rebuttal, all transcribed. If witness may be unavailable can videotape

o Notice is only required if deponent is a party—can force a non-party with a subpoena

o Positives: spontaneous- respondent must answer on the spot, scope is wide (so few permitted objections to any particular questions), opportunity to appraise witness (content/demeanor), get to substance (identify what is knowable/known/appraise case), measurement rod for settlement

o Bad: Costs a loto Respondent must answer all questions depositions can include things that are

inadmissible i.e. not an objection that they’re talking about hearsay

o Rules 31, 33 limit each party to 10 depositions (up to 7 hours each) without a court order

3. Deposition on written questions rarely used; can also be directed at anyoneo Saves money (oral depositions are very costly), and works well when the witness

isn’t antagonistic, get spontaneous reactions and videotape to show demeanor o Downside is that you aren’t there—you’re stuck with whatever questions you

sent in advance, can’t react to what the person says However, if something shows up, can opt to orally depose the witness

4. I nterrogatories questions sent to other party who answers them with lawyer and sends back

o Work shifters less cost for questioner, more for answerer; easier to write questions than answer them

o You can only propound interrogatories to a party, not to a witnesso Gives interrogating party the benefit of the entire information base (not just

what other party knows personally)o No spontaneity, no demeanor, no opportunity to catch word/phrases/reactions.

Honesty requirement but no super compulsion to tell the truth (shaded to help yourself)

o Many lawyers use as a sweep find out who knows what, and then depose them

o Interrogating party writes out all their questions, limit of 25 (otherwise have to ask court)

Rule 33 used to get baseline data, used for things with a specific answer

5. Document discovery / land inspection (Rule 34) access to land, machinery, laboratories, computer systems, and electronic data

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o Following conference in accordance with Rule 26d, just give notice about what you want to see

o This discovery device now becoming as important as depositions in products liability, etc

o Electronic Discovery Zubalake

Demonstrate dimensional shift with electronic data- cost is high Spoilation issue If something is reasonably accessible has to be produced If something costs a lot, perhaps cost sharing- Cost Sharing

Factors:o Specificity of the discovery requesto Likelihood of discovering critical informationo Availability of such information from other sourceso Purposes for which the responding party maintains the

requested datao Relative benefit to the parties of obtaining the informationo Total cost associated with productiono Relative ability of each party to control costs and its

incentive to do soo Resources available to each party

Accessibility: 1. active online data, 2. nearline data, 3. offline storage/archives, 4. backup tapes, 5. erased, fragmented or damaged data

Litigation Hold: first thing P will do is write to D to order a disposition hold

6. Physical/Mental examinations (Rule 35) court order to submit to examinationo Only discovery device that requires a motion and subsequent court order for

impositiono Rule requires def to establish two required elements before court issues order

Good cause—needs info from the exam that it can’t get elsewhere In controversy—matter being examined is specifically in dispute in the

caseo Closest of all fed rules to violating the Rules Enabling Act

Does it abridge, enlarge or modify a substantive right (privacy). If it doesn’t, then Hanna immunizes it.

It’s a Roe v Wade or right to die case—implicate right of privacy; or, at least in Roe, the right of physical, bodily privacy.

Is this the first Rule that is invalid because it’s unconstitutional??

Well you can at least use it for Ps—if you yourself put it at issue.

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Seattle Times: the only justification there was a legitimate state interest. Well arguably you can say the same thing about Rule 35 when its put up against the privacy cases.

These can be biopsies, MRIs, spinal taps—they have consequences, possible fatalities

Whose doctor? Can you bring your lawyer?

o Schlagenhauf v. Holder: bus driver involved in accident, def petitions court to issue order for 4 exams

Court says must balance privacy rights and interest in resolving disputes justly and expediently

Since plaintiff didn’t assert his condition in his claim, court says Rule 35 requires D to demonstrate good cause and the fact that his condition is in controversy in the case

Because no evidence brought to support requirements, SC reversed the exam orders

7. Request to Admit Rule 36 Issue is so clear the other side can’t deny in good faith. Once admitted it is out of

the case—no need to be proven. Rarely utilized- difficult to get an admission so just produces paperwork and

motion practice. Procedure:

i. Fatal decision is to do nothing→ forfeit issue, you can deny (but subject under sanctions of Rule 11 and 37), say you don’t know, or have an “on information and belief statement” for denial/admittance.

Not really a discovery device, classified because it’s closer resolution/adjudicatory

Expert Provisions: Experts play an important role in modern complex litigation (economists, technological

experts, scientists) 26a2b: Have to disclose your experts, and say what they’re going to say (although

usually very generalized) – data, exhibits, qualifications, complete statement and basis, list of other cases in previous 4 years witness has testified at, compensation

24a2c: have to make disclosure at least 90 days before date set for trial or case ready for trial. Or if only intended to contradict or rebut evidence identified by another party under 26a2b within 30 days of other party’s disclosure.

26d4a- a party may depose any person who has been identified as an expert, if a report is needed only after the report has been filed. Trial preparation. Payment.

Judges Role in Managing Discovery

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Uses the power under management Rule 16o Judge may decide that there is one particular issue that we should drive towards

like statute of limitations or assumption of risk- single issues that are life/death. Judge may hen set time frames/requirements and say that you only have discovery on this one issue and no merit discovery until resolved.

o Endless series of conferences with judge- status conferences, different pretrial orders governing the next stage in discovery

WORK-PRODUCT DOCTRINE- RULE 26B Hickman v. Taylor: greatest discovery case

o Lawyer performed extensive work (interviewing, etc) before case was broughto P brought suit and filed an interrogatory requesting basically everything from

lawyer (copies of all statements taken in connection with accident, and if oral, summaries of the statements)

o SCOTUS said this is essentially an attempt to get inside the head of the opposing counsel, without justification since plaintiff can interview witnesses himself

Not a privilege case, because not about attorney-client communication But the information is attorney work-product—need a good reason for

obtaining it If this case didn’t exist, lawyers would wait for opposing counsel

to do work and then just ask them to turn it over In the alternative, would lead to lawyers not writing anything

down, which is also bado SC doesn’t create a lawyer’s privilege, but a qualified immunity

If can’t get a substitute, immunity is trumped in the name of access to all relevant data; but if there is a substitute, immunity holds- No substitute because it is a hostile witness/dead/away

Rule 26b Codification and extension of the Hickman ruleo A party may obtain discovery of documents and tangible things prepared in

anticipation of litigation or for trial by or for another party (or representative) only upon showing substantial need and unable without undue hardship to obtain substantial equivalent by other means

o Court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation

If mixed→ judge will receive documents and cross off all the stuff that’s work product

o Also extends to a lawyer doing non-legal jobs, notion whatever a lawyer does is impregnated with the attitudes/philosophy towards the case. Rule also embraces non-lawyers acting for the lawyer (PI, Photographer, etc).

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o When does work product become an issue? After the COA has arisen. Still some ambiguity about what is done in anticipation of litigation.

Negatives of Work Product- Over utilization, Friction points Value- judicial independence/lawyer independence

FUTURE OF DISCOVERY/1993 AMENDMENTS

Likely Future Amendment: Electronic Discovery: o Not all emails subject to discovery. Rules are likely to be amended to deal with

electronic discovery as we are now awash in electronic information

1993 Amendments /Judicial Management of Discovery

o Promote management by judges of discovery and tries to further get rid of game playing.

Limit to 10 depositions (more with court approval)

Limit to 25 interrogatories (more with court approval)

Mandatory Disclosures 26(a) – controversial.

Name, contact info of anyone you know who might have discoverable information

Locations of documents, data, tangible things relevant to an issue in the case

Theory by which P computes damages

Any relevant insurance policy.

Disclose more about experts (not subject to deposition by opposing parties).

Names of potential witnesses/documents you intent to use at trial 26(a)(3).

o Other than the amendments, a few other management devices:

o 26(f): Conference/Planning. 21 days before scheduling conference is held or scheduling order is due under 16(b) parties meet and confer to consider nature/basis of claims/defenses, discuss settlement and propose a discovery plan.

o 16(b): Scheduling/Planning: DC judge receives report from parties on 26(f) & schedules conference to talk about joining parties, amending pleadings, filing motions, and scheduling discovery.

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o 16(c)(1)- Subjects for Consideration at PreTrial Conferences- shape the case. Articulate that which is actually in controversy and that which isn’t. Simplification and formulation of the issues, including the elimination of frivolous claims or defenses.

o Trial management courts cut down on length of trial. Rule 16 a blue print of trial management. Don’t manage tiny cases. Any substantial case will be managed.

o “Settlement” goes into rules- in 1983, judges rule as provocateur of settlement is legitimated.

o Case is managed/ shaped by the judge →Want to encourage settlement

PRE-TRIAL MANAGEMENT Rule 16 Pretrial Conferences; Scheduling; Management

o Gives court power to sequence, direct, schedule and manage in every respecto Prior to 1983, judges did not have to involve themselves with the idea of

settlemento Rule 16 amended the requirements dramatically

As soon as case falls within the docket (few exceptions), the judge grabs it and holds a conference to determine the scheduling, sequencing, management, etc of the case

Puts much greater pressure on parties to get moving on a settlement

o This and subsequent conferences create a triangulated system to promote settlement

Judge now major participant in process (20% of judicial resources shifted to management)

Some believe push for settlement hinders parties’ right to adjudication Rise of Para-Judicials

o Magistrates judges created by Congress, no lifetime appointment or presidential commission

District judges can delegate authority to run discovery, though no adjudicatory power

Make recommendations to district judges—trial lawyers may not see real judge for a while

o Masters ad hoc appointments Rule 53 for specific purposes (i.e. economist, accountant)

Make reports and recommendations to district judge on matters within area of expertise

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Below fed rules, each district has local rules, and judges may even have their own rules.

SUMMARY JUDGMENT- RULE 56

Serves as a filtering device designed to shorten trials, motion made in the middle of a case

Stages of trial that serve as filtration devices—should the trial go on?o Rule 12b6 Motion to dismiss “have you stated a claim for relief?”

D says there is no claim upon which relief can be granted Limited universe to the claim If granted, there is usually leave to re-plead

o Rule 12c Motion for judgment on the pleadings If granted, there is usually leave to re-plead

o Rule 12d Presenting matters outside the pleading- Demonstrates the interaction between 12 and 56, everyone give

opportunity to present material pertinent to the motion.

o Rule 56 Motion for summary judgment “Do you have a claim for relief” Universal standard = is there a genuine issue of material fact? Judge looks at all admissible evidence, to see if it can be resolved as a

matter of law Because you are denying someone a day in court- very heavy burden on

the moving party- although after Celletex and current bench this has lightened.

Granted When:o P’s case has no legal basis (i.e. no legally recognized

wrong)o No genuine issue of material fact

no reasonable jury could disagree with it allo there is a iron-clad defense that can’t be overcome (i.e.

statute of limitations has expired, res judicata applies) If granted → in effect you’re saying there is nothing trial-worthy &

produces final judgment with res judicata effect—not appealable EXAM: Make sure you don’t miss a triable issue of material fact on the

exam. Even the absolute slightest chance of the non-moving party’s questioning the fact is enough to deny the MSJ.

Issue of Judicial Discretion, Likely to be denied if:

There is something shady in the affidavits

Credibility is an issue – should be tried by jury

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When the party with the burden of proof at trial moves for summary judgment because juries may always disbelieve the witnesses presented at trial.

There is a gap in the evidence that needs to be fleshed out (there are three witnesses to an accident and only two depositions have been presented)

Procedure

Moving party has initial burden of proof to clearly show that there is no dispute of genuine fact (this is the case even if the moving party is the D who would not have a burden of proof on the issue at trial.)

If moving party fails to show there is no issue, motion denied (regardless of whether the opposing party showing anything).

It is only when moving party has shown that there is no factual dispute that the burden shifts to the opposing party to show that there IS a dispute.

o Rule 56

(a): Any party may move for SJ at least 20 days from commencement of the action or after service of MSJ by adverse party; without or without supporting affidavits.

(b): D can move at any time.

(c): Judgment may be entered if on all the evidence- pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, the moving party shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law (same as directed verdict )

o Rule 50 Directed verdict motion judgment as a matter of law; asking is anything jury-worthy?

Essentially the same as a Rule 56 Motion—but timing is different Case is getting more mature, motion-making getting less forgiving

D claims p’s evidence is insufficient, doesn’t satisfy the burden of proof If granted, produces final judgment with res judicata effect—not

appealableo JNOV renewed motion for judgment as a matter of law

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Case went to jury, jury ruled, and verdict-loser is making this motion claiming that the case actually shouldn’t have gone to a jury

Same motion as directed verdict, Rule 56—reflects back to whether issue was jury-worthy

If judge grants, he changes the verdicto Motion for a new trial Highly discretionary—e.g. granted when discrimination is

found

The only reason we have trials is to determine issues of facts—if no facts are in dispute, judge can rule on case as a matter of law

o 1Ls often miss this if there are no triable issues of fact in fact pattern, no reason for trial!

Policy

The summary judgment is viewed by many judges as a directed verdict motion at a different point. Is there enough here to send it to the jury? (directed verdict) Is there enough here to make it trial worthy (summary judgment).

o There is a fact/law dichotomy that is also a jury/judge dichotomy. By bolstering summary judgment we push more things onto the “law” side.

o Commitment to jury trial and the day in court always made judges cautious about granting summary judgment. That has weakened significantly since the 86 trilogy.

Some policies for limiting the scope of summary judgment.

o The idea of a day in court is a powerful one. Even though a summary judgment says you don’t have enough to get into court, we are still worried about giving final judgment without a jury verdict.

o The 1:1 between summary judgment and directed verdict is suspicious: Summary judgment is based on immature discovery, while directed verdict is based on mature information from trial. Also, witnesses are treated very differently from discovery to trial.

o Transactions cost increase by placing more emphasis on complete discovery (which undercuts some of the cost saving rationale of summary judgment.)

o Notion of plausibility from the Japanese TV case start to creep in on issues generally reserved for the jury.

Policies for expanding summary judgment: 1. Save money and resources. 2. Ambivalence towards jury competence compared to judges. 3. Reduces litigation which is important if you believe in a litigation crisis and its effect on American competitiveness.

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RULE 56(c) CASES:

HYPO: Student is walking to school, hit in crosswalk. Plan to present eyewitness accounts at trial from various religious figures who will all testify they saw the student in the crosswalk, then saw the car hit him while driving like a bat out of hell. Def plans on putting a less credible alcoholic on the witness stand to testify that plaintiff was running, looked drunk, saw the car coming, and shouted “hit me, hit me,” and that the car tried to stop.

o Pretty obvious that plaintiff would win at trialo Plaintiff makes summary judgment motion, claiming there is no genuine issue of

material fact with respect to negligence Judge can’t consider facts—merely asks are the facts in dispute?

Facts are in dispute if we believe def’s witness, but at trial we wouldn’t believe him

But factual disputes should be left to the jury, because regardless of how obvious it seems there is an issue of credibility that the jury must decide

o This case must go to a jury—summary judgment shouldn’t be granted

Lundeen v. Cordner: material fact at issue whether decedent took the necessary steps to change his will

o Intervener moves for summary judgment; court grants, saying trial would be a “waste of time”

Plaintiff’s affidavit didn’t meet issues raised and supported by intervener’s affidavit

No further evidence would come up at trialo Once the moving party says there is no issue of material fact, then opposing

party has opportunity to present evidence that there is a genuine issue but plaintiff didn’t do that here—should have done discovery, should have deposed intervener’s witness

Party opposed to SJ must assum some initiative in saying fact does existo In Lundeen, the material issue was a pure fact

There can also be mixed law/fact questions (i.e. purpose, motive, intent)o Court says if you would be entitled to a directed verdict, should be allowed SJo If there was an obvious advantage to cross examination then SJ may be

improper- but no evidence here that affidavit was bias, dishonest, etc. and it can’t just be a vague supposition

Cross v. US: professor claims his vacation was an educational expenseo Issue of material fact is whether any % of his expenses qualify as educationalo Judge cannot draw inferences in fact during the SJ stage (strays into 7th

amendment jury area) All inferences should be drawn in favor of the nonmoving party

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Fact issues here interlaced with legal issues – more fact application issues than Lundeen

o Shouldn’t grant SJ just because cross examination could be done through deposition→ deposition isn’t a substitute

Adickes v. Kress: civil rights case—white teacher eating with black students thrown out of restaurant, then arrested

o Adickes alleges conspiracy between the restaurant (Kress) and the policeo Kress makes motion for summary judgment supplies affidavits from police

and restaurant manager saying there was no preconceived plan/agreemento Justice Harlan says the movant has a burden on a summary judgment motion,

even when that party wouldn’t have the burden at trial Movant has burden to show absence of genuine issue of material fact When there is an issue of mixed law/fact, and there are credibility issues,

non-moving party should be able to try and prove their case at trial

1986 Trilogy: Demonstrates things have changed towards SJ

Celotex Corp v. Catrett: plaintiff sues for husband’s asbestos-related deatho Joint liability theory plaintiff allowed to sue a number of different defendants,

as long as plaintiff can prove that each def manufactured, or caused to be manufactured, the asbestos her husband was exposed to

Here she wasn’t able to prove that Celotex manufactured the product AND that her husband was exposed to Celotex’s products

o Classifies Burdens 1st Moving party: has to push the case into SJ area- has to establish that

there are no genuine issues of material facts and therefore they are entitled to judgment as a matter of law→ no obligation to do it in a particular way, just push it into the area (don’t know if the movant just says “can’t prove it” if that would constitute a Rule 11 violation)→

2nd Once the moving party has pushed it into the SJ area the burden shifts→

If movant hasn’t pushed it into the area non-moving party doesn’t have to do anything.

If they have, the non-moving party has to push it out (can’t just stand on their pleading need to come forward with something to show it’s trial worthy)

o Says that SJ is not a disfavored procedural device → stamp of approvalo Brennan’s dissent says this the majority’s opinion doesn’t provide any guidance

for what a lawyer needs to do when moving for summary judgment!

Anderson

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o Tries to create a 1:1 relationship between SJ and Directed verdict, saying that SJ shouldn’t be granted unless the case is trial worthy and directed verdict shouldn’t be granted if the case is jury worthy.

Problem: that there isn’t this correlation SJ all on paper when case isn’t fully mature, judge can’t judge credibility on SJ

o Use the substantive standard to judge if a person could find either way – if there is a heightened standard, use the heightened standard

o Jury role- to weigh evidence, draw legitimate inferences from facts (this isn’t judges role)

o Judge should make all inferences in favor of the non-moving party Matsushita

o Says there is no issue for trial because you have no facts which give rise to an inference of conspiracy

o Similar to Twombley- focus on plausibility- if inference/reasonableness is a jury concept isn’t plausibility? Looks like retreat from jury trials

JURY TRIALS

6th Amendment guarantees jury trial in criminal cases (incorporated into 14th Amend, applies to all states)

7th Amendment civil jury trial (has never been incorporated through the 14th Amend)o 1st clause: preserves the right to a jury trial as in common lawo 2nd clause: prevents judges from re-examining what juries have done Gasperini

Legitimacy of jury trial for criminal trials, jury trial was to be a buffer between citizens and state, and recognized unbelievable power of the state prosecutors

o This function isn’t so necessary in civil litigationo Civil litigation think about judicial bias, the common sense/ethics of the

community rather than a judgeo Often wasteful, time consuming

Historicallyo Equity/Law divide- Equity judges able to use the “clean up doctrine” and award

incidental/related damages at the foot of the equity decree – this solved all the issues but didn’t give you a jury trial on the money part

Courts didn’t treat jury trial as a right in civil cases—until Beacon (but not all states adopted Beacon—on an exam, would be safe to say “on the one hand, on the other hand…”)

Beacon Theatres: o In situations where there are both equitable and law issues:

Have to give priority to the 7th amendment issue of a jury trial Right to a jury trial attaches to certain issues (like quantity of damages)

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o Judge Must Itemize this issues

Purely legal → Jury Purely Equitable → Judge Common Questions → presumption that they should go to the

jury, whatever the jury says is binding on the judge when the judge turns to equity issues

This is a big departure from earlier clean-up doctrine (change from predominantly equitable to predominantly law)

POST-BEACON:

Beacon Theatres was all about taking a case that was totally equitable under the clean-up doctrine and converting it to a case that is 2/3 jury trial

o Twin prerequisites of equity jurisdiction inadequacy (shrinking as legal system expands), irreparability of harm

o Ability to get into equity and bypass the jury shrinks, as exemplified by the following hypos

Contract HYPO: Plaintiff contracted with def for widgets; def didn’t produce them. At equity, if plaintiff came into court and said this, it would be a request for specific performance (equitable) and therefore up to judge. Now:

o Almost all issues here are legal/for the jury Was there a bargain? (combination) Was there consideration? (combination) Was plaintiff willing to perform his side? (combination) Was there a breach? (combination) What are the damages? (purely legal)

o Only equitable issue should specific performance be granted? Dairy Queen v. Wood: plaintiff asking for permanent injunction and an accounting of

the money they were owedo Both aspects of plaintiff’s case was historically equitableo SC again rejects tradition says jurors are capable and can get masters to help

with complexities of accounting Again demonstrates Black’s desire to embrace opportunities to expand

jury trialso Court goes farther than Beacon—takes a large head of equity jurisprudence

(accountings) and moves it over to the law side, giving it jury trial right Why we don’t just get rid of equity completely→ equitable relief Juries can’t handle

effectivelyo Paradigmatic injunctions, SPo Sometimes better to have wide range of legal experience/mechanisms/principles

Ross v. Bernhard: derivative suit derivative suits and class actions were born in equity

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o Court held that it doesn’t matter that dispute comes into court in equity procedural vehicle look beneath the procedure, beneath the derivative request—what kind of an action is this?

Court said it’s a mixed law/equity caseo All equity procedures (interpleader, derivative suits, class actions) carry jury trial

under a straight Beacon analysis, once the judge makes the procedural decision that equitable device is appropriate

p.909 footnote on determining what is a legal/equitable issue for the Beacon analysis As our cases indicate, the “legal” nature of an issue is determined by considering: first, the pre-merger custom with reference to such questions; second, the remedy sought; and third, the practical abilities and limitations of juries

This last step in the process of determining what is legal/equitable inspired a lively debate over whether it meant that you shouldn’t have a jury trial in complex cases

Curtis v. Loether: Title VIII claim about housing discrimination based on raceo Def demands jury trial; plaintiff says no jury trial provision in the statuteo SC decision if certain conditions are met, post-1791 statutory rights carry

Constitutional jury trial right Right created by Congress must be vindicated in Article III court—

traditional court Remedy provided must be one traditionally granted by juries in courts

of law—damages Right created must be analogous to right that existed in 1791

Analogies cited by court aren’t convincing; this restriction is easily overcome

o Court holds that Title VIII does create a legal right to a jury trial—doesn’t matter if it did or didn’t exist at the time of the Constitution!

Markman v. Westview: issue is how should the scope of the term “inventory” be decided—by judge or jury? (“inventory” as used in patent)

o Court says this is for a judge to determineo Contracts are usually for a jury—why is this different?

Complexity exception? Exception because it’s a patent case? Majority says the question is analogous to interpreting a statute (tried

by judge) But dissenting view says this is a question of fact—like a contract

(tried by jury) uniformity concern patent must mean the same thing nationally, and

this uniformity will be better implemented if resolution comes from a judge rather than various juries

Patents and contracts have long been recognized to be within the exclusive domain of the federal court to encourage the same kind of uniformity

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Questions to ask to determine whether an issue is law or equity

1. What did the court do in 1787? (footnote)2. What is the remedy sought?

a. Money or money substitute = juryb. If want to enjoin someone from discriminating against you = pure equity

3. What court are we in?a. Article III courts = math on jury trial skyrocketsb. Bankruptcy court, military tribunal, etc = unlikely to get jury trial

4. Who is judging case?a. Judges Black and Douglas = presumption is always a jury trial

EXTRA

- Federal System follows the final judgment rule. Safety valves are: o Writ of Mandamus: Ordering judge below do somethingo Writ of Prohibition: prohibit the judge from continuing their jurisdiction over the

case- Federal courts permit remitteur but prohibit adetuer- Res Judicata v. Collateral Estoppel

o Collateral Estoppel Takes the issue out – settlement doesn’t usually have a CE effect.

o Non-Mutual Collateral Estoppel (validated by SCOTUS) if you were a stranger to the case, and what you want has lost, but the other party had a full and fair hearing, the issue was necessarily decided and you were foreseeable- than there is issue estoppel.

Exception: Taylor: Appeals court had said that res judicata, you can’t bring the claim because you were virtually represented, and this could go on forever. SCOTUS has said that virtual representation was not equivalent to having your day in court

- Contempto Criminal Contempt: Committed a Crime/Flaunted the System. Ex. Punching a

judge. Hit with criminal contempt and sentenced to jail like you would be in any other criminal context. Goal: To punish. This is a final judgment, Appealable.

o Civil Contempt: Not a crime, not seeking to punish- wanting to secure compliance with the decree seeking to intimidate (often done with money, journalist in jail). Not viewed as a final judgment and not appealable (Hickman was this- yet no one questioned appeal ability)

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- Hierarchy of Informationo Witness on stand (live/cross examination/under oath/judge)o Oral deposition (under oath/cross examination/no judge) o Deposition on written Questionso Interrogatories to parties (ex parte world)o Affidavit (no cross examination, no response to anything, but signed and subject

to perjury Rule 11)

Outline Laura Civil Procedure.

Documents

Transcript of Outline Laura Civil Procedure.