Subject Matter Jurisdiction - CODES• 28 USC §1331: Federal Question• 28 USC §1332: Diversity • 28 USC §1367: Supplemental Jursidiction

Personal Jurisdiction - discussion

• Citizenship determined at the time of filing

Forum Non Conveniens• There must be an alternative forum, if not issue is Forum non Conveniens dismissal• Private Factors:

– Plaintiff’s choice of forum– Convenience of parties and witnesses– 3rd party defendants to enjoin

• Public factors– Choice of law rules

• Substantive laws and forum rule shave to be considered separately

• Van Dusen v. Barrack – Choice-of-law rules of the State from which the case was transferred have to be applied

• Klaxon v. Stentor Electric Manufacturing – Federal courts use the choice of law rules of the state in which it sits

• Public policy exception– If new forum would be really unfair

• Same-sex marriage recognition variance across states is an area of conflict under the public policy exception

• Reyno – Scotland case• Substantial v. Procedural

– Courts follow their own procedural rules but uses substantial rules/laws from the jurisdiction where claims arose• Choice-of-law rules determines which laws apply in a jurisdiction

Pleading - Cases• Dioguardi v. Durning – ease of processing claims• Conley v. Gibson – the claim is one in which relief could be

granted and the pleading was sufficiently plain– A claim on which relief could be granted is in good faith unless there is

“no set of facts in support of his claim which would entitle him to relief” – Has been misinterpreted to have to do with fair notice, but it has nothing

to do with that• Doe v. Smith – judge draws inferences of the elements from the

well pleaded facts– Factors

• Assume that well-pleaded facts are true• Draw reasonable inferences• All elements are pleaded or inferred

• Twombly – exclude conclusory allegations• Iqbal – twombly standard applies

Pleading - Rules

• Rule 7– (a) Pleadings Allowed

• Answer to copmlaint– Defenses (listed in Rule 9)– Counterclaim, crossclaim

• Answer to counterclaim• Answer to cross claim• Third party complaint• Reply to an answer if court orders on

– (b) Motions• No specific list of motions, a request for a large variety of court

order• Rule 9(b) – heightened pleading standard applies for fraud

and mistake

Pleading - Discussion

• Twombly standard for a well-pleaded complaint– Subtract out conclusory allegations– Treat well-pleaded facts as true– Plausible inference– Every element is a well-pleaded fact or a plausible

inference

Pleading – Policy

– Twombly and Iqbal innovation was to categorize conclusory versus non-conclusory allegations• Sachs believes this is a problematic categorization – difficult

to distinguish– Policy implications of Twombly and Iqbal• Twombly was a 7-2 decision, indicating that it was a

response to the idea that discovery was becoming too cumbersome• Pro-defendant in theory, but studies by Federal Judicial

Center of the AOUSC don’t show many more dismissals post-Twombly

Responding to a Complaint- Cases

• Virgin Records America V. Lacey- • Matos v. Nextran – a complaint doesn’t have to be a

literary gem- standard is whether so vague and ambiguous” that we can’t figure out what's going on; motion to strike must show prejudicial material

• Hunter v. Serv-Tech – 12(b)(2-5) motions cannot be “reserved” in the first motion; they most be assertively claimed. Without an assertive claim 12(h)(1)(A) applies with failure to join under Rule 12(g)(2) and the defendant waives defense 12(b)(2-5)

• Reis Robotics USA Inc., v. Concept Industries – a denial of a copmlaint’s allegations is not an affirmative defense

Responding to the Complaint - Rules• Rule 12 – Motions

– (a)(1)(A) must respond to the complaint within 21 days of being served– (a)(4) Motion’s Effect on Time

• Motion denied- response pleading within 14 days after notice of court’s action• Motion granted: 14 days after new statement• Only rule 12 motions are government by 12(a)(4)

– (b) Motions to Dismiss• (1) SMJ, (2) PJ, (3) Venue, (4) Insufficient Process, (5) insufficient service of process, (6)

failure to state a claim, (7) failure to join• Can make any number of objections, they do not need to be consistent• (1) can be made at any time (including appeal), (2-5) MUST be made at the time the

defendant files a motion or his answer (whichever is first), (6-7) can be made at any time prior to trial or at the trial

– (c) Judgment on the pleadings– (e) More definitive statement

• Standard is whether a complaint is “so vague and ambiguous” that we can’t figure out what's going on

– (f) Strike• Motion to strike is “extreme” and “disfavored” - have to show that material is prejudicial

Responding to the Complaint - Rules• Rule 55 – Default

– Plaintiff asks for entry for default by sworn affidavit– (a) clerk enters default

• Clerk has no discretion, must enter default if failure to plead or otherwise defend is shown by affidavit or other means

• Admitting factual allegations– (b) Default Judgment

• For sum certain or sum that can be made certain by computation • (1) requires affidavit and entry of default judgment by clerk for judgment and costs• (2) party must apply for default judgment when sum is not certain

– (c) Entry of default must be set aside for good cause– If defendant puts in an appearance, the defendant is guaranteed at least 7 days before the

default hearing• Appearance- filing a piece of paper in court acknowledging lawsuit and naming lawyer; filing a motion or

answer usually meets appearance requirement

• Rule 8– 8(b)(1)(B) requires defendant to admit or deny– 8(b)(5) allows statement of lack of knowledge with the effect of denial – 8(b)(6) – any allegations that are not answered is taken to be true

• If not answer pleading, then all allegations are taken to be true • Still need to determine appropriate damages or injunctive relief by hearing

Responding to the Complaint - Rules• Rule 12

– (g)(2) omnibus motion rule – must raise all available defense and objections in first motion, with exceptions; done for efficiency

– (h)(1) some defense are waivable• PJ, venue, process, service of process defense in 12(b)(2-5) are waivable• Waivable by omitting from the first motion, not including in pleading, and not including it in any

motion• 12(b)(6-7) are not waivable due to the 12(g)(2) excpetions for 12(b)(6-7) can be reasied in

pleading, 12(c) motion, or at trial• 12(b)(6) failure to state a claim cant be waived because if it is wavied, a court could try a caise

wher ethere is not claim• 12(b)(7) – failure to join a party can’t be waived because the third aprty needs to be protected• 12(b) motions can assert defenses 1-7

– A responsive pleading can assert defense 1, 6, and 7; Can also assert 2-5 unless any were omitted in a previous motion

– 12(c) motions can assert defense 1, 6, 7; They can also assert 2-5 for a second time if previously raised– At trial, defendant can assert defense 1, 6, 7; They can also assert 2-5 for a second time if previously raised

– A new complaint resets the rule 12 requirements and omissions– (h)(2) – failure to state a claim or join a person required by 19(b) or state a legal defense

to claim– (h)(3) - SMJ

Responding to the Complaint - Forms

• Form 30 - Answers– Assert Unwaived Defenses– Admit or Deny Allegations– Raise Affirmative Defenses• 8(d)(3) – A party may state as many separate claims or

defenses as it has, regardless of consistently– Assert Counterclaims or Crossclaims

Amending Claims - Cases

• Beeck v. Aquaslide ‘n’ dive corp – defendant may amend answer to deny a fact previously admitted

• Moore v. Baker – requirements for relation back not met since it did not arise out of the same transaction/occurrence

Amending Claims - Rules• Rule 15

– (a)(1) - don’t have to get opposing party’s consent/court’s permission if you amend your complaint within 21 days of service of either the pleading OR motion to dismiss/strike/more definite statement

– (a)(2) • by written consent of the parties• By leave of the court (court grants leave when “justice so requires)

– (b) Amendments During Trial• Parties can amend pleadings if opposing party introduces evidence during trial that wasn’t raised by

pleadings– Need to object to new claim brought out during trial; otherwise it’s treated as implied consent– Court grants leave to amend during trial if:

» It aids in presenting merits of case AND» There's no prejudice to the party on the merits

– (c) Relation Back• When amending complaints, date of original complaint holds IF amendment relates back

– Important cases where statute of limitation has passed since filing original complaint– Relation back is allowed when:

» Statute allow relation back» Amendment arose out of the same transaction/occurrence OR» Amendment changes parties against who claim’s asserted if:

• Arose out of the same transaction/occurrence AND• Proper notice/summons is served to the new party

Joinder - Cases• Hohlbein v. Heritage Mutual – fear of prejudice outweighed by

practical benefits (efficiency) of joining parties claims• Erkins v. Case Power – court grants motion to file 3rd party

complaints against contractors• Torrington v. Yost – court needs to consider whether its

feasible to continue or discontinue– Four factors: (codified in 19(b))

• Prejudice (to absent or present parties)• If prejudice can be lessened by fashioning judgment to protect interest• Adequacy of judgment for plaintiff in absence of required party• Adequacy of alternative remedy for plaintiff if action dismissed

• Republic of Phillippines v. Pimentel – Rule 19 requires dismissal of interpleader action; sovereign immunity is a non-frivolous assertion;

Joinder - Rules• Rule 18 – Joinder of Claims

– Liberal approach to joining claims- party can assert ANY claim it has against opposing party, even if they’re unrelated; applies to any party who asserts claim, counterclaim, crossclaim, or 3d party claim; why? Promotes efficiency

• Rule 17 – Capacity– Capacity specifies who can sue;– (a)(1)(A-G): party can sue on behalf of another if they’re administrator, guardian,

executor, etc. – (c) governs who can sue on behalf of minors/incompetents– Public officers suing/being sued in their official capacity must be designated by

title, not the name• Rule 20 – Joinder of Parties

– More restrictive approach than 13– For parties to join, their claims/defense must:

• Arise out of the same transaction/occurrence AND• Raise a common question of fact

– (a)(1) plaintiffs (a)(2) defendants – mirror requirements for each other

Joinder - Rules• Rule 13 – Counterclaims/Cross claims

– Counterclaims are asserted when party sues a party who has already asserted claim against him– 2 types

• (a)(1) – Compulsory Counterclaim– Must assert counterclaim if:

» Claim arrises from the same transaction/occurrence as the original claim, and» Doesn’t rquire adding party the court has no jurisdiction over, and» Claim existed at the time the original claim was served

– If you don’t ring the claim you can be rule-precluded from brining the claim later– Doesn’t have to meet jurisdiction amount

• (b) Permissive– Party may assert any counterclaims it has against opposing party; party could wait to assert it in a future, separate

action– Must meet jurisdictional amount

• (g) Crossclaims– Can bring action against a co-party (aka people on the same side of the “v”) if:

» Claim arises out of the same transaction/occurrence of original action/coutnerlcaim, or» Claim relates back to property at issue in original action/counterclaim» party must already by part of the suit

• (h) you need to look to rule 19 or 20 to join before asserting a 13(g) counterclaim

• Rule 14 – Impleading 3rd Parties– If P1 sues D1, and D1 wants to assert that a different party is responsible, D1 cn implead that

party → that party becomes a 3rd party defendant, they are liable to 3rd party plaintiff (D1)– Mechanics of impleading: file complaint, serve the new party with complaint and summons

Joinder - Rules• Rule 19 – Joinder of Required Parties

– Party is required for resolution of action if: • (a)(1)(A) Court can’t afford complete relief without that party present• (a)(1)(B)(i) – party’s absence may impair/impede their interests• (a)(1)(B)(ii) – party’ absence leaves him subject to multiple/inconsistent obligations

– If joinder of party is required, court then considers whether its feasible– (b) governs whether courts should continue if its infeasible to join required party

• Rule 24 – Intervention– Intervention – when non-parties want to get involved in suit– (a) Intevention of Right

• Court must permit part to interven if:– Right to intervene is provided by statute, OR– Party has interest in subject matter of suit, which would be imparied and which existing parties wouldn’t be able to adequately

protect– Motion must be timely

» Court considers:• Stage of the trial• Purpose of intervention• When intervening party knew about claim vs. when they filed motion• Prejudice to original party

– (b) Permissive Intervention• Court may permit intervention to party if:

– Motion is timely, AND– Statute gives conditional rigght or intervening party has claim/defense that raises common question AND

» Don’t need same transaction/occurrence like you would in 20(a) claims– Intervention won’t cause undue delay or prejudice to existing parties

Joinder – Rules • 28 USC §1335 – Statutory Interpleader

– Joinder for interpleader allowed if:• Amount in controversy is equal to $500 or more AND• Minimal diversity is met (at least two claimants are from different states) AND• The stakeholder deposits contested property for interpleader claims

• 28 USC §2361 – Provides nationwide personal jurisdiction for interpleader claims

• 28 USC §2361 – governs venue for interpleader– Any district where one or more of the claimants reside

• Rule 22 – Rule Interpleader– If you can’t use statutory interpleader (i.e. all claimants from the same

states) look to 22– Joinder for interpleader in federal courts allowed if general

jursidctional requirements are met

Joinder - Discussion

• Interpleader – statute and rule– Plaintiff holding property on behalf of someone and

facing conflicting claims over its ownership can compel parties with interest in property to litigate disput• Plaintiff is a stakeholder who doesn’t have interest in property• Judgment of ownership issued will bind everyone in the suit

– Why statutory interpleader? • Statute confers much broader jurisdiction than rule

interpleader• Without statute, difficult to join parties

– May not be a common question or same occurrence (rule 20)and – May not be able to show parties is required under rule 19

• Personal jurisdiction/venue/SMJ complete diversity may not be met

Supplemental Jurisdiction - Cases

• United Mine Workers v. Gibbs – for federal court to have supplemental jurisdiction over state law cause of action, claims must arise from “common nucleus of operative fact” and the plaintiff must expect to try all claims at once– Missing factors!!

• Owen v. Kroger – no basis for federal jurisdiction for claim since the claim was independent of/didn’t rely on claim within the original jursdiciton; need to pass “common nucleus” test and meet statutory requirements under §1332

Supplemental Jurisdiction – Codes

• 28 USC §1367 Supplemental Jurisdiction– (a) – codified Gibbs test; grants supplemental

jurisdiction for additional claims that on their own wouldn’t’ get into federal court if they meet the Gibbs test

– (b) exceptions to (a)• Can’t use (a) when:

– Original case got into federal court on diversity grounds and the claims brought by the plaintiff (including those joined under 14, 19, 20 , and 24) when doing so breaks diversity

– Does not apply to claims brought by defendants

– (c) – court has discretion to decide whether to hear claim with supplemental jurisdiciton

Supplemental Jurisdiction - Discussion

• Don’t need supplemental jurisdiction if the court has original jurisdiction

Class Actions - Cases• Hansberry v. Lee – parties aren’t bound by earlier judgment

because their interests weren’t adequately represented• In re Teflon – 23(a) – must be a clear definition of class,

court has to know who is bound by the judgment who should be awarded damages; representative party must be a member of the defined class (so they fight hard and represent class interest)– Fails to meet predominance test and superiority test

• Synfuel v. Airborne – in class actions, court must be more proactive and exercise more scrutiny in inquring into fairness, lawyer quality, adequacy of representation in order to protect absent parties who are not at the negotiating table

Class Actions - Rules• Rule 23

– (a) prerequisites for class action pre-certification• Numerosity (its impractical to join all parties)• Commonality (question of fact of law raised by claims)• Typicality (of claim or defense asserted by parties)• Adequacy (of procedures/counsel in order to fairly protect interest of parties)• *class considered “putative” until it becomes “certified” under 23(c)

– (b)Types of Class Actions• (1) – Prejudice: class action version of 19(a)(1) required party joinder rule, class action is permitted if, without

absent class members, there is– (A) Risk of incompatible/inconsistent verdicts

• (2) – Injunctive/declaratory relief : class action permitted if injunction would only be relevant/enforceable if it could be applied to class as a whole not just the party in suit; injunctive relief must by the primary relief sought

• (3) – Damages/catchall class : class action is certified if two factors are met: predominance (whether common questions of law/fact predominate the issue) and higher standard than commonality factor (common question must by the most important issue) and superiority (whether the class action is superior method of adjudicating issue)

– (c) Procedures for class actions• Must provide notice for (b)(1-2) but not for (b)(3)– (b)(3) situation where plaintiff is most likely to want to sue on

their own– (e) Plaintiff could opt out either before trial or at settlement stage

• (2) – court must determine settlement is fair, reasonable, and adequate• (5) – absent parties can object to settlement and become party to a suit

Purpose/definitionMembers of class who are similarly situated can sue as representative members to collectively bring claim against opposing partyUsually, π’s form the class action against a Δ, but rule allows for vice versa

All members of class bound to judgment in class action suit, unless:The suit is directly overturned, orMember had opted out under 23(b) rules to pursue individual action

Why class actions?Encourages settlement (due to high-stakes nature of one trial)Encourages efficiency of court resourcesAlternative= piecemeal litigation, which could create inconsistent verdicts/obligationsProhibitive cost of suing individually may dissuade π from pursuing lawsuit

Due process for class actions?Courts bend the rules on notice/due process/personal jur. concerns 23(a) requirements are supposed to protect absent parties’ interests

Representative π usually pays for notice upfrontSettlementπ

Class Actions - Discussion• Purpose/definition – members of class who are similarly situation

can sue as representative members to collectively bring claim against opposing party; usually plaintiff forms the class action, but rules allows for vice versa

• All members of the class are bound to the judgment unless– The suit is directly overturned– Member has oped out under 23(b) rules to pursue individual action

• Why class action?– Encourages settlement (due to the high-stakes natre)– Encourages efficiency of court resources– Alternative – piecemeal litigation which could create inconsistent

verdicts/obligations• Due process?

– Courts can bend the rules on notice/due process/personal jurisdiction concerns

Discovery - Cases

• McPeek v. Ashcroft – tapes case, VERY large discovery

• Chadasama v. Mazda Motor Corp – information was deemed to be unreasonable to be obtained

• Hickman v. Taylor – when the proponent of discovery can obtain the desire information elsewhere, it has not met the burden of showing such special circumstances

Discovery - Rules• Rule 26

– 26(a) – Required disclosures• Must include: name, address, telephone number of each individual likely to have discovery; copy of all documents the disclosing party may s to support its claims or

defenses; computation of each category of damages claimed by the disclosing party; any insurance agreement• Must make initial disclosure within 30 days after being served or joined; must make a reasonable effort• Expert testimony – most disclose info (name, opinions, facts/data used to form opinions, exhibits, qualifications – cv, publications in the last 10 years, other cases they

testified in over the last 4 years, statement of compensation)– 26(b) Limitations

• (2) – limitations of frequency and extent• (3) attorney work-product immunity• (4) limitations on deposing experts not used at witnesses• (5)(A) – privileges must be claimed• (5)(B) mistaken production of informationt hat was priveleged

– 26(c)(2) – orders to compel discovery• If the court denies a motion for a protective order, then the court may order any person or party to privde or permit discovery (must be done in accordance with

37(a)(1)– 26 (d-e)

• Cannot seed discovery before 26(f) meeting• Can use discovery in an sequence• Must supplement discovery given to other party as soon as learn that it is incomplete

– 26(f) Discovery and Scheduling Conference• Parties must confer at least 21 days prior to conference• At conference

– Consider claims and defenses, possibility of settling– Make arrangements for discover under 26(a)(1)– Develop a proposed discovery plan

» Must submit discovery plan to the court with 14 days after the conference» Timetable for when initial disclosures will be made» Subjects on which discovery may be needed» Issues of discovery re: electronic info» Form in which to produce discovery» Any change necessary to be made to rule

– 26 (g)• Every discovery request must be signed by an attorney (for the party themselves if they are unrepresented) who certifies that discovery is complete, accurate, and in

accordance with the rules• Court will strict discovery without a signature

Discovery – Rules (Cont.)• Rule 33 – Interrogatories to Parties

– May serve up to 25 written questions (including all discrete subsections)– May related to any matter under 26(b)– Responding party

• Must be answered within 30 days by party or representative of corporation or agency• Each question must be answered separately and fully• Objections must be stated with specificity• Answers signed by party; objections signed by attorney

• Rule 34 – Request for Documents, E-Discovery, Entry Onto Land– Can request almost any type of document including: writings, drawings, graphs, charts,

photos, sound recordngs, images, other data/data compilations– if necessary translation– Procedure

• Request– Must describe with reasonable particularlity– Must specifiy reasonable time, place, and manner– May specify the form in which electronc documents be produced

• Must produce documents as they are kept in the usual course of business or how they are ordinarily maintined

• An objection to part of a request must specify the part and permit insepction of the rest• No silent objects

Discovery – Rules (Cont.)• Rule 30 – Depositions by Oral Examination

– With or without leave– Leave required when

• The parties have not stipulated to the deposition AND• The deposition would result in more than 10 depositions being taken• The deponent has already been deposed in the case• The time specified is before the time specified in 2(d) • The deponent is in prison

– Procedure• Must give reasonable notice to every other party stating time, place, deponent’s name and address• Party must state method for recording deposition• Deposition must be conducted before an officer appointed or designated under Rule 28

– If deposition to an organization• Notice or subpoena must state with reasonable particularity the matters for examination• The responding org. will then designate an officer or managing agent to testify

– Examination and cross examination• Proceed as would in trial• An objection will be noted in the record, but the examination will proceed• An objection must be stated in a nonargumentative manner• A deposition is limited in duration to 1 day of 7 hours• Sanctions are available to a misbehaving party

– Review by the witness• Deponent must be allowed 30 days after being notified that the record is complete to review the transcript or record• If there are changes to be made, can sign a statement listing the changes and the reason for making them• Transcript or recording of final proceedings available to all witness after a reasonable fee???

“noticing” a depositiona. must specify method of recording of depositionb. serve notice of the time and place of deposition, with copies to other parties to the actionc. location is within the district where the civil action is pending or a place agreed by the parties2. subpoena duces tecuma. a document that orders the depondent to bring documents with himb. attached in notice of deposition, or in an attachmenti. must list materials requested3. during the depositiona. oral deposition is a live examination of a witness under oath w/o a judge presenti. differs in that questions are served on the deponent in advance and then read to him by a court reporterii. answers are live and under oath; coaching of a deponent not permittedb. objections may be made by opposing counsel but examination still proceedsc. if deposition is later used at trial, the judge will have to rule on all objections before the testimony is admitted into evidence4. if deponent is a corporationa. corp. must designate a deponent knowledgeable about those matters to testify on its behalf5. uses of depositiona. discovery; used as a preview of what witness may say at trialb. possible impeachment materialc. substitute for live testimony b/c witness unavailable for triald. note that a deposition is hear-say (out-of-court statement offered in court for its truth)7

Discovery – Rules (cont)• Rule 31 – Depositions by Written Question

– With or without leave of the court– Must obtain leave when

• The parties have not stipulated to the deposition• The deposition would result in more than 10 depositions being taken• The deponent has already been deposed• The party seeks to take a deposition before the time specified in 26(d)

– Must serve notice of deposition on every other part, with notice stating deponent’s name and address• Rule 32 – Using Depositions in Court Proceedings

– May use a deposition against another party when• The party was present or represented at the deposition or had reasonable notice of it• If admissible under the federal rules of evidence as if the deponent were present and testifying

– Impeachment• Depositions may be used to contradict witnesses

– Unavailable witnesses• Depositions may be used when

– Witness is dead– The witness is more than 100 miles away from the place of the hearing or outside the US– Witness cannot attend or testify due to illness, infirmity or imprisonment– Witness was unable to be reach by subpoena– Exception circumstances in the interest of justice

– Objections• An objections may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the

witness were present and testifying• An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving notice• May also object to the officer’s qualifications, but must be done before the deposition begins or promptly after the disqualification

becomes known• Objection to an error of irregularity waived if not timely

Discovery – Rules (cont)• Rule 36 – Request for Admission

– Party may request that the opposing party admit or deny the truth of statements– 30 days after being served to respond– Usually this request is made after other discovery (so there is time to formulate

statement)– However, party does not always respond with truth, usually deny– Scope

• Inquiry of other party– Facts– The application of law to fact– The opinions regarding the two above– Genuineness of any described documents

– A matter is admitted unless explicitly denied (must include grounds for objection– May assert a lack of knowledge or information as a reason for failing to admit or

deny (this ha the effect of a denial)– The requesting party may more to determine the sufficiency of an answer or

objection• If amended answer does not comply, then the allegation is admitted

Discovery – Rules (cont)• Rule 35 – Physical and Mental Examinations

– Ordered by the court– Must be medical condition that is in controversy– Must be fore good cause, send notice to all parties– Order must specify

• Time, place, manner, conditions, scope, person performing the examination– Examiner’s report must be in writing and state findings, including diagnosis, conclusions, and test results– Requesting party entitled to receive all prior and subsequent findings on the same condition by other examinations

• Rule 45 – Subpoena– Form of subpoena – requirements

• Issuing court• Title of the action, pending court, case number• Command the person to appear or produce documents/tangible items at a specific time and place• If commanding attendance at a deposition, must state the method for recording testimony

– Issued by clerk of the court– Service

• May be served by any person who is at least 18 years old and is not a party• May be served at any place

– That is within the district of the issuing court– Outside the district but within 100 miles of location specified– Within the state of the issuing court if a state statute or court rule allows service to that place– Wherever authorized by the court

• Service in a foreign country to a US resident – 28 US –§1783– Objections - May file an objection within 14 days after the subpoena is served– Must quash a subpoena when

• Fails to allow a rasonable time to comply• Requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that pesrson resides or is employed (EXCEPTION – rule 45(c )(3)(B)(iii))• Requires disclosure of privilged or other protected matter, if not exception or waiver applies• Subjects an individual to an undue burden

– May quash subpoena when• Disclosing a trade secret or other confiidential research development or commerical infomration• Disclosing an retained experts opinion• A person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles ot attend trial

– The issuing court may hold in contempt the person who, having been served, fails without adequate excuse to obey the subpoena

Discoveries - Discussion

• Attorney-Client Privlege– Absolute privilege- even communication between lawyers– Client possess the privilege– Doesn’t protect communications in front of 3d parties– Only the client can waive the privilege– Rationale: we want to encourage clients to give their

attorneys as much information as possible so that their attorneys can represented them effectively

• Work Product Immunity– Covered under 26(b)(3)– Documents/tangible things prepared in anticipation of

litigation may be privileged as ordinary work product if they are not facts

Interogatories- Discussion• Procedure

– The lawyer seeking discovery prepares and serves a party with up to 25 written questions

– The responding party must object or answer within 30 days– Answers are made in writing under oath by the party who signs

them (usually the attorney prepares them)– Must be anwered with all information available to the party;

must at least make an attempt to find the info– No such thing as a silent objection

• Advantages– Relatively inexpensive discovery tool (compared to depositions)

• Disadvantages– Usually preared by attorney who drafts vague answers

Depositions - Discussion• Noticing a Deposition

– Must specify method of recording of deposition– Serve notice of the time and place of deposition, with copies to other parties to the action– Location is within the district where the civil action is pending or a place agreed by the parties

• Subpoena Duces Tecum– A document that orders the deponent to bring documents with him– Attached in notice of deposition, or in an attachment

• Must list materials requested

• During the deposition– Oral deposition – live examination of a witness under oath without a judge present

• Differs in that questions are served on the deponent in advance and then read to him by a court reporter• Answers are live and under oath; coaching of a deponent is not permitted

– Objections may be made by opposing counsel, but examination still proceeds– If deposition is later used at trial, the judge will have to rule on all objections before the testimony is

admitted into evidence• If deponent is a corporation

– Must designate knowledgeable about those matters to testify on its behalf• Use of Deposition

– Discovery; used as a preview of what witness may say at trial– Possible impeachment material– Substitute for live testimony because witness is unavailable for trial– Note that a deposition is hear-say (out of court statement offered in court for its truth)

Dismissal - Cases

• In Re Bath and Kitchen Fixtures Antitrust Litigation – “point of no return” – when defendant files answer or motion for summary judgment; prior to that point, notice of voluntary dismissal is automatic and immediate (court doesn’t mess with it)

Dismissal - Rules• Rule 41(a) Voluntary Dismissal

– With or without court order (by plaintiff)• Without a court order – notice to dismiss must be filed before: opposing party service either an answer or

MSJ OR a stipulation of dismissal signed by all parties who have appeared• With a court order – at the plaintiff’s request on terms that the court deems proper, plaintiff files a motion

instead of notice, judge looks for plain legal prejudice– Factors include: whether the suit is still in pretrial state or further along, if the parties have attended many pretrial

conferences, there are prior court rulings adverse to plaintiff’s position, hearings have been held, , that parties have undertaken substantial discovery, court can force the plaintiff to pay some of the defendant’s costs in 0rder to get the case dropped, “2 dismissal” rule does not apply

– Without prejudice, unless court states otherwise• “2 dismissal” rule – can only dismiss once before it serves as an adjudication on the merits; only applies when

voluntary dismissal without court order

• Rule 41(b) Involuntary Dismissal– Motion made by defendant– Grounds for involuntary dismissal

• 12(b) motion to dismiss• Plaintiff's failure to prosecute• Party fails to comply with the rules

– With prejudice• Exceptions

– Lack of jurisdiction– Improper venue– Failure to join a party under rule 19

Dismissal - Discussion• Reasons for Seeking Voluntary Dismissal

– To correct or redraft pleadings– To facilitate consolidation with another action– To defeat diversity jurisdiction by joining non-diverse parties and refiling in state

court– To preserve subject matter jurisdiction by dismissing the action as against non-

diverse parties– To avoid unfavorable state law by refiling in a state or federal court in a different

jurisdiction– To refile in a different jurisdiction with a longer statute of limitations– To delay or avoid an anticipated adverse determination on the merits– To delay or avoid discovery– To change federal judges by refiling in a state court with the hope that a different

judge will be assigned to the case on removal• Dismissal of Counterclaim, Crossclaim, or 3d Party Claim

– Plaintiff’s voluntary dismissal must be made• Before a responsive pleading is served• If there is no responsive pleaded, before evidence is introduced at trial

Summary Judgment - Cases

• Slaven v. City of Salem – non-moving party must set forth specific facts showing that thee is a genuine issue for trial

• Duplantis v. Shell Offshore, Inc. – example of absence of proof motion for summary judgment

• Celotex v. Catrett – the burden on the moving party may be discharged by showing that there is an absence of evidence to support the nonmoving party’s case

Summary Judgment - Rules

• Rule 56– In the outline from chrissy (zachs)– Has flow chart!!!

Summary Judgment – Discussion• No genuine dispute as to any material fact• Usually decided before trial and based on documentary evidence

– Evidence is so one-sided that a reasonable fact-finder could dispute the existence or non-existence of certain facts

• A party may file a MSJ at any time until 30 days after the close of all discovery• A party moving for summary judgment must support this assertion by

– Citing to material in the record (that are admissible under the rules of evidence, though affidavits are okay)

– Showing that these materials do not establish the presence of a genuine – need only look at cited materials, but can consider other materials in the record

• Standard of Proof– Clear and convincing evidence– The summary judgment standard is not whether a reasonable jury would find for the nonmoving party,

but that it COULD• Types

– Proof-of-the elements summary judgment – must present undisputed facts supporting each and every element of the claim or defense in order to obtain summary judgment; moving party has the burden of proof

– Disproof-of-an-element motion of summary judgment – present undisputed facts proving the non existence of an essential element to the non-moving party’s claim; does not have the burden of proof

– Absence of proof motion for summary judgment – no evidence in the record by which the non-moving party could establish the existence of an essential element or claim; does not have the burden of proof

Summary Judgment - Checklist• Checklist (page 991)– What is the rule of substantive law applicable to the motion?

(always the starting point)– Which facts matter- are “material”-to apply the rule of law– What is the proper record for summary judgment? That is, what

evidence may the court consider in ruling on such a motion?– Has the moving part met its burden of showing that there is no

genuine dispute of material fact in that record and that it is entitled to judgment under the applicable rule of law?

– If the movant has met its burden, has the non-moving party met its burden of showing specific facts in the record that create a genuine dispute of material fact under the applicable rule of law?

– What is the proper disposition of the motion?

Judgment as a Matter of Law - Cases

• Baltimore and Carolina Line v. Redman – upheld 50(b) motion

• Pennsylvania RR Co. v. Chamberlain – there was not a legally sufficient evidentiary basis to support a verdict for the plaintiff– Determining whether evidence is legally sufficient:• Ask whether the evidence is such that, without weighing the

credibility of the witnesses or otherwise considering the weight of the evidence, there can be but on conclusion as to the verdict that reasonable person could have reached

• The court does not make credibility determinations– Outcome would have been different under the scintilla

standard

Judgment as a Matter of Law - Rules• Rule 50

– If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:• Resolve the issue against the party• Grant a motion for judgment as a matter of law

– May be made at any time before the case is submitted to the jury (50(a))

– (a)• Defendant cant argue that no reasonable jury could find the fact necessary for defendant to win and the judgment therefore should

be entered in defendant’s favor as “a matter of law”• Plaintiff is given the opportunity to amend, but generally plaintiff does not have any other evidence to prove claim• Often called a “directed verdict”

– Court does not weigh the evidence (not supposed to determine which side’s case is more credible)– If court does not grant a 50(a) motion

• Can file again under Rule 50(b) – “renewed” motion for JMOL• Must be made no later than 28 days after the entry fo the judgment or after the jury was discharged• In ruling on the renewed motion, the court may:

– Allow judgment on the verdict– Order a new trial– Direct the entry of judgment as a matter o law

– In reviewing the rule 50(b) motion, the court will also conditionally rule on grating or denying the motion for a new trial if the judgment is later vacated or reversed

– When judge grants motion, signifies that the party has offered so little evidence that the facts can be determined as a matter of law

– Judicial reluctance to grant 50(a) motions because of the possibility of appeal and appellate court my remand for a new trial

– Same standard of evaluation used for a 50(a) and 50(b) motions (sufficient evidence exists for a reasonable jury to render a verdict for the plaintiff

Judgment as a Matter of Law – Rules (Cont)

• Burden of Production – refers to a party’s burden to produce sufficient evidence to avoid an adverse ruling on a particular matter– Compare to burden of persuasion

• Scintilla Alternative– Has been rejected or minimized in most courts– Under scintilla alternative – the court only considers

the non-moving party’s evidence and will deny a JMOL if the non-moving party has offered a scintilla of evidence in support of its position

Judgment as a Matter of Law - Discussion

Jury Trial – Cases

• Dairy Queen v. Wood – can have a jury trial whether legal issue are incident to equitable issues or not; expansion of rights in Beacon Theatres v. Westover (in main outline)

• Markman v. Westview Instruments– Patents are an issue of law for the judge• too complex for the jury

Jury Trial - Rules• Rule 38 and 39 – Jury Trial Rights

– A jury trial protect under the seventh amendment or federal statute– May demand a jury trial by:

• Serving the other parities with a written demand (may be included in the pleading), no later than 14 days after the last pleading direct at the issue is served

• Filing the demand in accordance with 5(d)• If demanding a jury trial on only some issues, must specify which issues; other party may assert jury

trial rights on certain issues within 14 days of being served– Waiver – a party waives a jury trial unless its demand is property served and filed. A

proper demand may be withdrawn only if the parties consent• Parties may also waive jury trial rights through contracts• If one party requests a jury trial and other party waives jury trial rights → jury trial still happens

– If accidentally waived jury trial right, can make a motion to the court to request a jury trial for any issue in which a jury trial might have been demanded

– Advisory jury – if there is not right to a jury trial, but the judge wants advice from ta jury• Jury’s verdict is nonbiding in an advisory jury

• Rule 42 – Consolidation or Separation of Trials– May consolidate if a common question of law or fact

• Avoid unnecessary cost or delay– Claims can also be delineated into separate trials if necessary

Jury Trial - Discussion• 7th Amendment

– Only applies to federal courts– Parties are not required to try their cases to juries even if they have a right to– “preserved”

• Merger of Law and Equity– Jury goes first when an issue raise both a law claim and an equity claim

• Statutory Jury Rights– Look to the remedy

• If the statute gives you money = legal• If the statute gives you an injunction = equitable• If both, mixed bag

• Cut-backs on the Right to a Jury Trial– Administrative agencies (no jury rights)– Size of the jury (from 12, now 6 is the minimum)– Direct verdit (rule 50)/motion for summary judgment (Rule 56)

• Judge can direclty implement the verdict

• Desirability of Jury Trials– Juries may be unable to comprehend complex material– Congress has upheld jury trial right, even in complex cases, make material more understandable to juries by educating them, narrowing

issues, and restructuring trials– Jury trials take longer (up to 2x longer than judge) and more expensive, must be all tried at once

• When removing to federal court:– Removing party – must file a demand for a jury trial within 14 days of notice of removal is filed– Non-removing party – must file for a jury trial within 14 of service of notice of remoal– A party who, prior to removal, made an express demand for a trial by jury does not need to make the demand after removal to have a

jury– If state law does not required the demand to be made, in federal court the demand doesn’t need to be made unless the court says so

New Trial - Cases

• Trivedi v. Cooper – cannot appeal remittitur because it is not a final judgement

New Trial - Rule

• Rule 59 – New Trial – New trial may be granted when a verdict is “clearly

erroneous,” “manifest injustice,” “definite and firm conviction of error”• Judgment is clearly wrong b/c it is not supported by the

“weight of the eidence• Judge finds that an error occurred in the coduct of trial or

the jury deliberation• Losing party finds evidence after the trial (within 28 days)

that would have materially affected the outcome

New Trial - Discussion• Procedure

– A new trial is granted :• After a jury trial, for any reason which a new trial has heretofore been

granted n an action at law in federal court• After anonjury trial, for any reason for which a rehearing has heretofore

been granted in a suit in equity in federal court– Motion for new trial must be filed no later than 28 days after entry

of the judgment– Motion to alter or amend must be filed not later than 28 days after

the entry of judgment• Combined motions for Judgment as a Matter of Law and New

Trial– May move for both pursuant to Rule 50(b)– If grant JMOL, court will conditionally rule on motion for new trial

(Rule 50(c)) in case judgment is later vacated or reverse

Relief from Judgment • Rule 60 – Relief from Judgment or Order

– Used sparingly– Grounds for relief from final judgment or order (60(b))

• Mistake, inadvertence, surprise or excusable neglect (includes default judgment)• Newly discovered evidence that, with reasonable diligence, could not have been discovered in time

to move for a new trial under rule 59(b)– Must be asserted within 28 days after the judgment

• Fraud, misrepresentation, misconduct by an opposing party• Judgment is void• The judgment has been satisfied, released, or discharged; based on earlier judgment that has been

reversed or vacated; or applying it prospectively is no longer equitable• Any other reason that justified relief

– Timing – reasons 1-3 must be asserted within 1 year ;everything else must be made within a reasonable time

– Rule 61 – Harmless Error• Prejudicial testimony• Improperly granted Rule 50 motion and take case away from jury when don’t have to• Improperly argument to jury• Witness misconduct• Evidentiary errors• Instructional erros

Remedies - Cases

• Fuentes v. Shevin – due process requires a hearing before property is taken from an individual, cannot do it ex parte

• University of Texas v. Camenisch - ??• Zenith v. Hazeltine Research – need to serve

notice

Remedies – Rules• Rule 69 – execution for money judgments → use state law procedure• Rule 64 – seizing a person or property

– Garnishment – having a 3d party who owed the Defendant money to pay the creditor– Arrest– Attachment- property is secured for a judgment– Replevin → return your own property (defendant has to post 2x the value of the property to seize it)– Sequestration – property is removed pending outcome– Any other remedies available under state law

• Rule 65 – Injunctions– (a) Preliminary Injunction, Notice, Hearing

• Must establish: likelihood of success on the merits, irreparable harm, balance of equities, public interest– (b) temporary restraining order (can happen without notice)

• Only In place for 14 (can be extended for an extra 14 but that is it, total 28)• Must submit an affidavit that is sworn• Need to show immediate and irreparable injury

– (d) contents and scope of injunction• (2) persons bound: parties, officers, agents, servants, employees, and attorneys (plus other persons who are in active concert)• If you’re bound by an injunction and you violate it you can be held in contempt• Only applies to people who are in concert and are given actual notice of the injunction

• Rule 57 – Declaratory Judgments are Ok– Preserves Jury Rights

• Rule 62 – Stay of Proceedings– (a) automatic stay – execution of judgment can’t happen until 14 days after judgment– (d) – stay with bond on appeal – not pay money if you post a bond guaranteeing tha tyou are good for the money later,

have to think that there is some chance you will win

Remedies - Code

• 28 USC §2201 – Declaratory Judgment Act– There must be an actual controversy, declare whether

or not future relief is or could be sought– “mirror image” – where the parties switch sides in a

suit (Rule 57), makes sure if it happens, jury rights are preserved

Appeals - Cases

• MacArthur v. UT Health Center - Need to have preserved below and presented above

• In Re Recticel Foam Corp – you cannot get a review of a discovery order until the trial court has the final judgment– Because: it avoids confusion, costs money and delays

trials, does not want a piecemeal review– Collateral order doctrine- things that can be appealed

separately

Appeals – Rules/Code• FRAP: Federal Rules of Appellate Procedure

– Rule 3: notice of appeal has to be filed with the district court clerk; need to have: who is appealing, what is being appealed, and where you are appealing to

– Rule 4: 30 dates after judgment; • (a)(5) – district court can give limited extension• If you miss the deadline for not good reason, you waive your right to appeal• 30 days is subject matter jurisdictional limit

• FRCP– Rule 54: must resolve everything and have a final judgment for appeal to go through (Final Judgment

Rule)– Rule 59: new trial motion based on weight of the evidence– Rule 50(b): Judgment on a Matter of Law

• These motions toll the time limit for the appeal (time for appeal is in effect after these motions are disposed by the court)

– Rule 42: • 28 USC

– §1291: appellate courts only have subject matter jurisdiction over final decisions; can appeal everything at the end

– §1292: interlocutory Decisions• Includes injunctions• (a)(1) – court of appeals has jurisdiction over all injunctions• (b) – district court can certify something for apeal

Appeals - Discussion• Writ of Mandamus – telling the court to do its job

– No other adequate means of relief AND clear and indisputable right to relief• Timeline

– Notice of appeal– Initial filings (Local Rule

• Send up the record• Statement of issues• Corporate discolsures

– Briefs• Opening• Response• Reply• Joint appendix (selection of stuff that is relevant from the trial record)

– Oral Arguments – 3 judge panel– Opinion – judgment

• Affirm, reversing, vacating, dismiss– Rehearing – different 3 judge panel (or en Banc)

• 3 Ps of Appeals– Prejudicial – can’t be Rule 61 (harmless error)– Preserved below (objected to below)– Presented above (presented in the appeal

• Plain Error Rule (exception to preservation)– Was there an error?– Was that error plain? (clear or obvious)?– Substantial rights are at stake

Appeal – Standard of Review

• De Novo – questions of law• Bench Trial – findings of fact by the judge – clearly

erroneous– Need a clear error because the appeals court is reading

the trial record (“cold record”) and so they can’t see everything that happened in the court

• Jury Trial– Abuse of discretion

• If judge were not to know what the rule actually was = de novo• If the just makes an error of law = abuse of discretion

– Jury Verdicts• Reasonably jury – no legally sufficient evidentiary basis

Claim and Issue Preclusion

• There must be two or more lawsuits– Look to the most recent lawsuit to determine if a claim

or issue has already been decided• Both are considered affirmative defenses under

FRCP 8(c )• Quality of previous judgment– Default judgments are always given res judicata on the

ultimate claim decided

Claim Preclusion – Cases and Rules

• Claim Preclusion = Res Judicata• Cases– River Park Inc. v. City of Highland Park - – Taylor v. Sturgell – virtual representation will not

preclude non-parties from claims; there must be a relevant legal relationship between party and non-party to preclude non-party from future claims

• Rules– Mirror of Rule 13(a)(1)(A) compulsory counter claim

Claim Preclusion – Discussion• In order for a claim to be precluded you need:

– A final judgment• Represents the completion of all steps in the adjudication of a claim short of execution• Unaffected by appeal- if a court’s subsequent action is pending, the court could stay proceedings or dismiss

– The judgment must be valid• Need valid personal jurisdiction and subject matter jurisdiction• Can have a collateral attack ONLY if it was not consented on the merits

– The judgment must be on the merits• Pre-trial dismissals unrelated to the merits = no claim preclusion• Pre-trial dismissals related to the merits = claim preclusion

– Plaintiff may be able to avoid claim preclusion if they change the pleadings including new facts/legal theories or by amending the pleadings

• Involuntary pre-trial dismissal – Majority rule: claim preclusion– Minority rule: no claim preclusion

– The parties in the subsequent actions must be identical to the parties in the first action• Can have claim preclusion ONLY if you have original parties or those who were “in privity” to the original parties• Privity must be close, essentially need an agency relationship in order to demonstrate control over the lawsuit

– The claim in the subsequent action must include matters properly considered in the first action• Applies to claims that were actually litigated or could/should have been litigated in the first action• Scope of Relief Test- if relief in the subsequent action would be inconsistent with the relief awarded in the prior action then a court may give preclusive

effect to the first judgment; VERY narrow• Primary Rights Test: a second court will apply preclusion to prevent mutliple successive lawsuits on the same grounds for the same wrong/injury• Same Evidence test- if the same evidence is used for the subsequent lawsuit, preclusion applies (rarely used)• Transaction test – requires application of preclusion doctrine to any injury arising out of the same acts; have to present all claims in one lawsuit

– Parties have to aligned in the second suit as they were in the first

Claim Preclusion - Test• Determining if a claim was properly considered in the first

case– Transaction Test (more restrictive, modern doctrine) – claim is

precluded in lawsuit 2 if it arose from the same nucleus of operative facts as the claim in lawsuit 1; claim preclusion for any injury arising out of the same acts; have to present all claims in one law suit

– Evidence Test (less restrictive, historic doctrine) – claim is precluded in lawsuit 2 if it require the same evidence to prove as an issue in lawsuit 1; rarely used

– Others (not discussed by Sachs)• Scope of Relief Test- if relief in the subsequent action would be inconsistent

with the relief awarded in the prior action then a court may give preclusive effect to the first judgment; VERY narrow

• Primary Rights Test: a second court will apply preclusion to prevent multiple successive lawsuits on the same grounds for the same wrong/injury

Claim Preclusion - Policy

• Designed to Promote Efficiency– Generally interpreted expansively• On the merits, valid, and final, etc.

– Void judgments – if something turns up well after a suit that would otherwise void the judgment, it may be held valid for claim preclusive purposes• As long as the issue was fairly litigated, and• There was no manifest abuse of authority

Issue Preclusion - Cases

• Felger v. Nichols – same issue cannot be litigated twice even if the claims are different

• Cambria v. Jeffery – non-prejudicial findings aren’t appealable

• Panniel v. Diaz – has to do with privity• Parklane Hosiery Co. Inc., v. Shore -

Issue Preclusion - Discussion• In order for a court to collaterally estop the parties from retrying the same issue, it must

be:– An identical issue– Actually litigated, and– Necessarily determined and essential the judgment

• Whether the fact on which issue precusion is asserted was necessary and imprtant in the first litigation rather than merely evidence

• Mutual Issue Preclusion– Generaly: asserted by a party who is involved in the prior suit, can have offensive and defensive– Identical issues– Actually litigated and decided

• Full opportunity to litigate, adequate incentive to fully litigate, not constrained to trial (may be arbitrated), – Valid, final judgment on the merits– Issue was essential to the judgment– Same Party/privity– Exceptions

• No appeal available in lawsuit 1• Question of law – very different or a change in the law• Change in procedures between courts of the two suits• Burden of persuasion is relevantly different• Would hurt third parties, couldn’t foresee new action, or didn’t have full opportunity or incentive to litigate

Issue Preclusion – Discussion (Cont.)• Non-Mutual Issue Preclusion

– Not asserted by a party who was involved in the prior lawsuit– Same party who lost must be in both suits– Offensive

• Left largely to the discretion of the judge to determine if its fair (predictability of future lawsuits, incentive/opportunity to litigate first case fully); allowed in federal courts but not in most state courts; can’t be used if there was a prior inconsistent judgment

– Defensive• If a plaintiff loses against one defendant, then brings a suit based on the same issue against

another defendant, the second defendant may use the results of the first suit as a defense• Encourages plaintiffs to join as many defendants as possible in one lawsuit, rather than

bringing repeated claims

• Offensive– Asserted by the plaintiff against the defendant– Non-mutual offensive issue preclusion factors to consider:

• Foreseeability of subseuqent lawsuit• Sideline sitters- could the parties have just joined?• Aberrational first judgment• Different procedural opportutnies

Issue Preclusion - Policy

• Mutual– Not intended to correct errors made in the first trial,

that’s what appeals are for• Non-Mutual– Adversarial v. inquisitorial view of the legal system• Adversarial – resolve controversies• Inquisitorial – answers questions

Erie Doctrine – Cases• Tyson v. Swift – state law binding on federal courts, BUT fed cts can interpret it as they please• Black and White Taxi Cab v. Brown and Yellow Taxi Cab – company reincorporate in a different

state so it could use the law it liked• Erie v. Tompkins – overruled Tyson; said there is such a thing as federal common law; Lays

out “Twin Aims”: 1) Prevent forum shopping and, 2) encourage equal application of the law; Federal courts should predict how the state supreme court would rule on the case

• Klaxon Co v. Stentor Electric – federal courts must follow state of law rules in which they sit (reflective of Erie policy of fed courts ruling like state courts

• US v. Standard Oil Co of CA – there may be federal common law in some areas, but there isn’t a general federal common law

• Guaranty Trust Co of NY v. York – abolishes substantive/procedural test for determining whether state law should apply; Creates new test: uses strong retrospective analysis, strong preference for uniformity between systems

• Hanna – Creates its own test (see separate slide)• Shady Grove: there is a lot of disagreement; Rule 23 is valid; plurality – in determining a rules

validity, the court looks only at a federal rule and not at the state law to be displaced by it– Plurality- if its arguably procedural, its procedural and thus not substantive– Stevens – consider states intent to determine if it substantive, have a high bar for finding an REA

problem– Dissent – evaluate state’s intent, but not with a high bar

Erie Doctrine- Significant CasesErie R.R. v. Tompkins Guaranty Trust Byrd v. Blueridge

ElectricHanna v. Plummer

Federal courts must apply both state statutory and decisional law

Outcome determination test to see if a state law is substantive or procedural when it is in conflict with a federal law

Byrd balancing test to see when federal law in conflict with state law pre-empts state law

“Rules Enabling Act” branch, states that federal procedural law pre-empts state procedural law. Federal procedural law deemed facially constitutionally valid.

Erie Doctrine – Codes/Rules• 28 USC §1447: Substantive law for joinder on (or?)

removal

Erie Doctrine – Discussion

• Substantive Law: need a conflict of state and federal law to conduct Erie analysis; if there is a state law on point, state law controls; “Rules and Decision”

• Procedural Law: federal procedural law preempts state procedural law; “Rules Enabling Act”

Erie Doctrine - Tests• Outcome Determination Test

– is the issue one which is tightly or loosely bound up with the creation of rights being sued on?

– Would application of a different rule in federal court determine the outcome of the litigation differently (and more favorably) than the application of state rule?

– Would the application of the federal rule be outcome determinative because it would induce forum shopping in favor of the federal courts and result in unequal administration of the law

• Balancing Test (from Byrd)– What is the federal interest in avoiding state law or the federal policy to be fostered in

applying state law?– Would the use of a federal stand have an adverse impact of federalism?– Would the application of the federal rule intrude on the state’s ability to regulate a legitimate

area of state interest? • Hanna Test

– If there is a federal rule or statue on point, and its valid, USE IT• Validity: hinges on 2072(b) (FRCP can’t abridge, expand or modify substantive rice) (Shady Grove)

– If no federal law applies, look to policy• Twin Aims of Erie• Strong Protection of Jury Right (Bryd)