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Civil Procedure Fall 2007 Professor Jay Tidmarsh Pleadings

I. The Complaint a. Rule 8 – General Rules of Pleading

i. 8(a) – Claim for Relief 1. A pleading that states a claim for relief must contain:

a. (a)(1) – a short and plain statement of jurisdiction b. (a)(2) – a short and plain statement of the claim

showing that the pleader is entitled to relief 2. Meaning of 8(a)(2)

a. To give notice --> a little fact and a little law 3. Deliberately avoids the word FACTS

b. Formal Sufficiency of the Complaint i. Swierkiewicz v. Sworema N.A.

1. Rule 8(a)(2) requires “a short and plain statement of the claim,” regardless of whether the claim will succeed on its merits

2. Claim cannot be dismissed b/c it omitted certain facts ii. Bell Atlantic v. Twombly

1. Pleading did not nudge case “across the line from conceivable to plausible”

a. Gets rid of “no set of facts” standard of Conley b. New standard: Pleading must:

i. Have some sense of plausibility ii. Establish a need for substantive sufficiency

2. Holding probably only affects big antitrust cases iii. Erickson v. Pardus

1. The pleading standard of Rule 8(a)(2) is to be construed very liberally

a. As long as the claim contains “a short and plain statement” which explains why the pleader is entitled to relief, it should be allowed

c. Filing and Serving the Complaint

i. Service of Process – giving ∆ both complaint and summons

1. Π files in court - $150

2. Π serves ∆

3. Court issues summons

ii. Rule 4 --> Summons

1. (a) --> Contents/amendments of summons

2. (b) --> Court issuance of summons

3. (c) --> Service of summons

a. Party CANNOT serve

4. (d) --> Waiver


a. Π requests that ∆ waive formal service

b. ∆ gets 60 days instead of 20 to respond

5. (e-j) --> Methods of service

iii. Rio Properties, Inc. v. Rio International Interlink

1. Court allows for service via email b/c no other methods were available

a. Rule 4(f)(3) does not forbid email service

i. This was ∆’s preferred method of contact,

and the most likely way to reach ∆

ii. Email cannot be used to serve a ∆ unless permission is obtained from the court

b. Court concludes that email is a new form of communication, and that service in this context is not a due process violation

II. Responding to the Complaint (Motions and Answers)

a. ∆ has three options upon receiving summons

i. Not respond – default judgment against ∆

ii. File a motion

iii. Answer the Complaint b. Motions – NOT a pleading

i. Pleadings – set forth the position of the parties on the claim

ii. Motions – Direct application to the court for an order c. Rule 12 --> Defenses and Objections – Motions for Judgment on

Pleadings

i. 12 (b) Motions to Dismiss

1. (1) Lack of Subject Matter Jurisdiction

2. (2) Lack of Personal Jurisdiction

3. (3) Improper Venue

4. (4) Insufficient Process

5. (5) Insufficient Service of Process

6. (6) Failure to State a claim upon which relief can be granted

7. (7) Failure to join a party under Rule 19

ii. 12 (e) --> Get more clarification

iii. 12 (f) --> Strike allegations

d. Conley v. Gibson

i. Complaints should not be dismissed via 12(b)(6) motions unless it

appears beyond doubt that the Π can prove no set of facts in support of his claim which would entitle him to relief

III. Answers

a. Rule 8(b) --> Defenses

i. 8(b)(1) – a party must state in short and plain terms its defenses to each claim against it

ii. 8(b)(2) --> party must admit or deny the allegations against it iii. 8(c) --> Affirmative Defenses – Use it or lose it


1. Rule does not say what the consequences are if the affirmative defenses are not stated

2. Defenses listed in Rule 8

a. Accord and satisfaction

b. Arbitration and award

c. Assumption of Risk

d. Contributory negligence

e. Discharge in bankruptcy

f. Duress

g. Estoppel h. Failure of Consideration

i. Fraud

j. Illegality

k. Injury by a fellow servant l. Laches

m. License

n. Payment o. Release

p. Res Judicata

q. Statute of frauds

r. Statute of limitations

s. Waiver 3. Motions to dismiss under 12(b) also fall under this category

b. King Vision PPV v. J.C. Dimitri’s Restaurant

i. Rule 8(b) offers 3 options: 1. Admit an allegation

2. Deny an allegation

3. Say you lack knowledge of information

ii. In 30 of 35 paragraphs, ∆ neither admitted nor denied but demanded “strict proof thereof”

1. Judge got cranky and ruled that all allegations were therefore admitted

c. Carter v. United States

i. The failure to plead an affirmative defense in the answer works a

forfeiture only if the plaintiff is harmed by the ∆’s delay in asserting it

IV. Amending the Pleadings

a. Rule 15

i. (a) – Amended and Supplemental Pleadings

ii. A party may amend its pleading ONCE as a matter of course

1. After that, party must seek permission from both the court and the other party

a. Can “seek leave” from the court b. Court should freely give leave “when justice so

requires”

i. When NOT to give leave (Foman)


1. Undue Delay

2. Bad faith

3. Repeated failure to cure deficiencies

4. Undue prejudice to the opposing party

5. Futility of the amendment 2. Robinson v. Sappington

a. Although affirmative defenses are supposed to be raised in the initial pleadings, district courts have the discretion to allow an answer to be amended to assert an affirmative defense not raised initially

iii. Rule 15 (c) --> Relation Back of Amendments

1. 15(c)(1)(b) – an amendment relates back to the date of the original pleading when the amendments asserts a claim or defense that arose out of the conduct, transaction, or

occurrence set out, or attempted to be set out, in the original pleading

2. Tran v. Alphonse Hotel Corp.

a. For a newly added action to relate back, the basic claim must have arisen out of the conduct set forth in the original pleading

i. “Relation back” – when an amended pleading refers back to an original pleading which was still within the statute of limitations (the amended pleading would have been beyond the statute of limitations)

ii. To be allowed, it must “relate back” to the conduct set for in the original pleading

iv. On exam questions, analyze both 15(a) and 15(c) TOGETHER

V. Policing Pleadings and Motions

a. Rule 11 – Signing Pleadings, Motions, and Other Papers

i. 11(a) – Almost everything has to be signed

ii. 11(b) – Presenting a pleading, written motion, or other paper certifies:

1. It is not being presented for any improper purpose

2. Claims, defenses, and other legal contentions are warranted by existing law or a nonfrivolous argument

3. Factual contentions have evidentiary support or will likely have evidentiary support

4. Denials of factual contentions are warranted on the evidence or are reasonably based on belief or lack of information

iii. 11(c)(2) Sanctions --> Motion for Sanctions

1. If a party introduces a motion to sanction, the other party has 21 days to correct

a. “Safe harbor” provision


b. Standard – Negligence

c. Keeps the # of 11(b) sanction reports down

d. The attorney’s fees sanction is no longer automatic for parties who file a winning Rule 11(c)(2) motion

i. Now, there isn’t much incentive for lawyers to report Rule 11 violations, b/c they can’t get their attorney’s fees from the losing party

iv. 11(c)(3) Sanctions --> On the Court’s Initiative

1. No “safe harbor” provision

2. Higher standard – Intentional Violation (Bad faith)

3. Court orders party to show why it is not in violation

4. Patsy’s Brand, Inc. v. IOB Realty, Inc.

a. An attorney is entitled to rely on his or her client’s statements as to factual claims when those

statements are objectively reasonable

b. In re Pennie & Edmonds, LLP

c. Appropriate standard for sua sponte Rule 11 sanction is BAD FAITH

i. Key question: What is reasonable in terms of “good faith”?

v. 11(c)(4) – Types of sanctions

1. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated

a. Could be money, but easily could be other deterrences

b. Determined by the judge’s discretion

VI. Standards of Review a. What standard should the appellate court use when reviewing the facts and

applicable law of a trial court decision b. Three Possible Standards

i. De novo 1. Case reviewed without any deference to the trial court 2. Look at the case afresh

ii. Clear Error 1. Court won’t disturb the decision of a lower court unless

there was a clear error in the lower court’s decision iii. Abuse of discretion

1. District judges made an error in judgment that was an abuse of their discretionary power

Discovery I. Mandatory Initial Disclosure – Rule 26(a)(1)

a. Names and contact information of individuals likely to have discoverable information

b. Individuals who might serve as witnesses


c. A copy of all documents or electronic information II. Other mandatory disclosures – Rule 26

a. Disclosure of expert witness testimony b. Pretrial disclosures

III. Party-Initiated Disclosures a. Depositions (Rules 30-32) b. Interrogatories (Rule 33) – parties only c. Requests for product of documents/tangible things/inspection of premises

(Rule 34) d. Requests for physical/mental examinations (Rule 35) – parties only e. Requests for admission (Rule 36) – parties only

i. See chart on 101 for specifics IV. Supplementing Discovery – Rule 26(e)

a. Required supplementation of original discovery disclosures b. This rule lacks teeth

V. Limitations on Discovery – Rule 26(b)(1) and (2) a. Relevance

i. Evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence should be provided

ii. For good cause, the court can order discovery of any matter relevant to the case

iii. Restrictions. Discovery must be limited when: 1. It is unreasonably cumulative or can be obtained from some

other less burdensome, more convenient, or less expensive source

2. The party seeking discovery has had ample opportunity to obtain the information

3. The burden of expense outweighs the benefit b. Proportionality

i. Person providing the information cannot face an undue cost of burden

ii. Sanyo Laser Products, Inc. v. Arista Records, Inc. 1. “Good cause” must be demonstrated in asking for

discovery pursuant to rule 26(b)(1) 2. Parties must prove that the information sought is unduly

burdensome to produce, or is privileged, to avoid production of information

iii. Zubulake v. UBS Warburg LLC 1. Whether production of electronic documents is unduly

burdensome or expensive turns primarily on whether they are kept in an accessible or inaccessible format

a. If it is unduly burdensome or expensive to produce electronic information, responding party does not have to produce it


2. Typically, the responding party bears the expense of complying with discovery requests

a. If the cost exceeds the benefit, the requesting party must pay the expenses of discovery requests

c. Privilege i. Some information is not discoverable based on privilege, even

thought that information may be relevant to a case 1. Examples: Attorney-client, spouse-spouse, priest-penitent,

journalist-source 2. Some privileges are absolute, and others are qualified (the

privilege disappears if the need is great enough) ii. Hickman v. Taylor

1. Ruling formed the basis for Rule 26(b)(3) 2. Fortenbaugh, counsel for Taylor, refused to answer one of

the questions in the interrogatory, claiming that the other side was attempting to get at his privileged work product

a. Work product – material prepared by an attorney in preparation for litigation or trial

b. Court agreed that work product was exempt from discovery in THIS situation

3. Relevant and non-privileged facts are still discoverable, even if contained in an attorney’s files

4. Privileged information is sometimes discoverable, IF: a. Party shows substantial need, AND b. Party shows undue hardship

5. Mental impressions and conclusions of an attorney are never discoverable, unless an attorney waives his rights

6. FRCP do not specifically say that work product of lawyers is protected, but that is only because this is assumed

iii. In re Tri-State Outdoor Media Group, Inc. 1. Distinguishes between attorney-client privilege and work-

product protection a. Attorney-client privilege is an absolute protection,

unless waived b. Work-product protection is a qualified protection

i. Sometimes A/C and W/P overlap 2. Determines to what extent expert witnesses have

information that is discoverable a. They are fundamentally part of a lawyer’s work

product b. If they testify, they waive any rights to

privilege/protection 3. Four factors to determine whether A/C privilege extends to

third parties: a. Third party must be an agent of the attorney


b. Third party must facilitate the communication between attorney and client for legal advice

c. Communications with a third party must be kept confidential

d. The privilege must not be waived 4. Protected work product, as applied to third parties/expert

witnesses: a. Must show the information they wish to protect was

prepared in anticipation of litigation b. Must not waive their privilege by testifying

5. Rule 26(a)(2)(b) a. Requires disclosure of work product supplied by a

party to its testifying expert 6. Expert witnesses who testify

a. Waive attorney-client and work product protections b. Have discoverable information

VI. Sanctions for Discovery – Rule 37, Rule 26(c) a. Purpose – to provide incentive for proper and timely disclosure b. Degrees of Sanctions

i. Too severe (Dismissal of a case) – frustrates deciding a case on its merits

ii. Too lenient (extending deadlines, small fees, etc.) – Frustrates efficient delivery of civil justice/making parties abide by the rules

1. Similar to the sanctions Rule 11 imposes on pleadings and motions

2. Sanctions not meant to be imposed on parties with legitimate (but incorrect) basis for non-disclosure

c. Disputes are handled in 2 different ways: i. Seeking Party: If party from whom discovery is sought objects to

disclosure, seeking party must file a motion to compel the discovery under Rule 37

1. Follows a good faith conference – party must submit certification to this, that they attempted to resolve matter without court action

ii. Responding party: A party from whom discovery is sought can strike preemptively with a motion for a protective order and ask the court before it must provide the info to relieve it of, or limit, the obligation under Rule 26(c)

d. Rule 37 – 2 levels of sanctions i. Minor sanctions of Rule 37(a)

1. Very modest 37(a)(5) --> attorney’s fees 2. Three exceptions

a. No good faith conference b. Side opposing motion to compel is substantially

justified c. Sanctions would be “unjust’


3. If the court grants a motion to compel, the court can award “reasonable expenses” that the moving party incurred in prosecuting the motion to compel; Rule 37(a)(4)(A-B)

ii. Major sanctions of Rule 37(b) 1. Party must violate a court order that compels the party to

produce requested discovery 2. Ultimate sanction is DISMISSAL

a. 37(b)(2) provides other sanctions, ranging from not allowing certain evidence to be used at trial, to contempt of court

3. Exceptional circumstances where courts can impose “major sanctions” w/o prior order

a. When party refuses to serve answers to interrogatories or to respond to request for product, or fails to appear at deposition

b. Party fails “without substantial justification” to disclose information required

VII. Failure to Make or Cooperate in Discovery; Sanctions a. Motion to Compel – Rule 37(a)-(d) – to get information that has been

wrongfully withheld b. NHL v. Metropolitan Hockey Club

i. Dismissal of a complaint is justified only when failure to comply is done:

1. Willfully 2. With bad faith 3. And not simply b/c of an inability to comply

c. Courts are generally reluctant to use dismissal sanction of Rule 37 i. 5 aggravating factors to consider before choosing dismissal

1. Degree of actual prejudice to the other party 2. Amount of interference with judicial process 3. Culpability of the litigant 4. Whether there was advance warning that dismissal was a

likely sanction 5. Efficacy of lesser sanctions

VIII. Signing Disclosures and Discovery Requests, Responses, and Objections a. Rule 26(g) – Discovery’s counterpoint to Rule 11 (pleadings)

i. Good faith rule which provides sanctions to any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party

ii. Every written discovery request, response, and objection is to be signed by the lawyer

1. Certifies that it is consistent with the law 2. Certifies that it is not trying to harass the other side

iii. Rule 26(g)(3) does NOT do away with the Rule 37 sanction process


Narrowing Issues I. Case Management

a. Rule 16 – Pretrial Conferences; Scheduling; Management i. Heart of Rule 16 is the conference

1. Judge acts as manager 2. Judge asks parties what’s going on, keeps parties on task,

finds out what the disputes are, and then tailors the parties to move into a particular direction

b. ADR – Alternative Dispute Resolution i. Settlement, Mediation, Arbitration, etc.

II. Final Disclosures a. Final Pretrial Order

i. A detailed final statement of claims going into trial ii. Exists to further narrow the issues

iii. Rule 16(d),(e) and Rule 26(a)(3) = all the things that need to be in a final pretrial order

iv. Final pretrial orders are hard to change 1. Can be “modified only to prevent manifest injustice”

a. Rule 16(e) b. Final Pretrial Conference

i. Rule 16(d) – conference shall be held by district court, usually after discovery, and focuses on the conduct of a trial

1. Parties submit joint trial plan or proposed final pretrial order (stipulations of facts/law on which they agree, remaining disputed issues, witnesses, deposition excerpts to be used)

c. Pretrial disclosures – Rule 26(a)(3) makes mandatory certain disclosures shortly before trial

i. Typically the court orders the parties to submit the final pretrial order (Rule 16(e)) and this order supercedes Rule 26(a)(3)

ii. RMR v. Muscogee County School District 1. Three factors to consider when determining whether or not

to exclude a witness (who had not been listed in pretrial disclosures)

a. Importance of testimony b. Reason for failure to disclose witness earlier c. Prejudice to the opposing party if the witness had

been allowed to testify (MOST IMPORTANT) d. Summary Judgment

i. Rule 56 1. This motion can be based upon the facts adduced during

investigations and discovery 2. If granted, it terminates all further litigation on a claim or

defense a. It’s a judgment on a claim or a defense, NOT on the

facts


b. You have to show that the facts that are NOT in dispute ENTITLE you to a judgment

3. The most important of all the FRCP a. 56(a) – The party who has to succeed on the claim

may move for summary judgment b. 56(b) – The party on the other side can move for

summary judgment c. 56(c) – The heart of summary judgment

i. Summary judgment should be granted if the evidence shows that:

1. There is no “genuine” issue as to any material fact AND

2. The movant is entitled to judgment as a matter of law

d. Celotex Corp. v. Catrett i. Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails

to make a showing sufficient to establish the

existence of an element essential to the

party’s case ii. Motion for summary judgment does not

need to be accompanied by affidavits 1. Rules 56(a) and (b) say the motion

may be “with or without supporting affidavits”

iii. This case probably encourages federal courts to use summary judgment more frequently

e. Scott v. Harris i. There must be “no genuine issue as to the

material facts” in order to preclude summary judgment motion from being granted

ii. Rule 56(c) – When a moving party has carried its burden under this rule, its opponent must do more than simply show there is some metaphysical doubt as to the material facts

1. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is “no genuine issue for trial”

Judicial Controls Over Jury Factfinding During and After Trial

I. Judgment as a Matter of Law – Rule 50(a)


a. During a trial, court should render judgment as a matter of law when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for the party on the issue”

i. i.e., “no reasonable jury” standard ii. Intended to mirror Rule 56 “no genuine issue” standard

b. Motion must be made BEFORE the case is submitted to a jury c. Reeves v. Sanderson Plumbing Products, Inc.

i. When entertaining a motion for judgment as a matter of law, court should review all evidence in the record and give credence to evidence (draw all reasonable inferences) in favor of nonmovant

Post Trial

I. General a. Verdict rendered, but case is not over until court enters judgment b. Judge has some authority to review, overturn, or modify jury’s findings

II. Renewed Motion for Judgment as a Matter of Law (RJMOL) a. Rule 50(b) – formerly called j.n.o.v. (Judgment notwithstanding the

verdict) i. Same “reasonably jury” standard as Rule 50(a) JMOL

ii. Judge can deny the motion (sustain verdict) or grant the motion (overturn verdict)

1. Why would judge grant motion now if he denied it during trial?

a. He lets the jury find the verdict and hope it’s the “right” decision

2. Timing a. Must be filed within 10 days (cannot be extended)

3. Grounds a. Same as for JMOL b. “No legally sufficient evidentiary basis for a

reasonable jury to find for the party opposing the motion”

iii. Waiver of Renewed Motion 1. RJMOL cannot be granted unless moving party already

made a motion for JMOL “at the close of all evidence” a. A motion made earlier in the trial, but before the

close of all the evidence, does not count 2. Few exceptions for failure to do this:

a. If earlier JMOL motion was raised prior to close of all evidence and court said movant did not need to renew its motion under 50(b) in order to preserve its right to challenge the verdict

b. No new evidence after original JMOL motion c. Short period of time between initial JMOL and

close of all the evidence iv. Limitations on Motion


1. Rule 50(b) RJMOL motion can assert only those grounds that were previously asserted in Rule 50(a) JMOL motion

2. Incentive for parties to make JMOL motion during trial in order to reserve right to use it after verdict

III. Motion for a New Trial a. Rule 59(a) b. Request another trial at which losing party hopes to obtain a better

outcome c. Different standard – depends on what the common law would have

allowed d. Timing

i. 10 days within entry of judgment e. Grounds

i. No express list ii. Common law standard (Montgomery Ward)

1. Verdict is “against the weight of the evidence” a. How is this different from “reasonable jury”

standard? i. It’s harder to show; courts grant this motion

less frequently than JMOL b. Continuum

i. Reasonable juries ii. Against the weight of the evidence (close to

the border) iii. Unreasonable juries

c. “Shocks the conscience” – excessive damages d. Remittitur – Plaintiff has choice between new trial

or immediate judgment for lesser amount i. Used in federal system

e. Additur – reverse of remittitur i. NOT allowed in fed. System

2. Reasons for granting a new trial a. Trial not fair to moving party, via having some

defect such as: i. Newly discovered evidence

ii. Impermissible arguments iii. Misbehavior

b. Substantial errors in admission or rejection of evidence or jury instructions

f. Waiver for motion for New Trial i. Failure to make motion for a new trial precludes appellate review

of an “against the weight of the evidence” argument ii. Some courts hold that failure to make a Rule 50(a) JMOL at close

of all evidence precludes a Rule 59 motion for a new trial premised on the verdict being against the weight of the evidence

IV. Relationship/Differences between RJMOL and Motion for a New Trial


a. Most attorneys file both Rule 50(b) and 59(a) at the same time b. Rule 50(b) – enters judgment for loser c. Rule 59(a) – merely gets a new trial d. Different standards

i. RJMOL – Reasonable jury (easier) ii. Motion for a New Trial = common law/verdict against the weight

of the evidence (tougher) e. Rule 59(a) – judge can weigh credibility of witnesses (does not have to

view it in light most favorable to the verdict winner), but will only grant such a motion if the jury’s verdict is egregious

V. Constitutional Considerations a. 7th amendment: “No fact tried by a jury, shall be otherwise re-

examined…other than according to the rules of the common law” b. Rule 59(a) motion for a new trial is constitutional under the 7th

amendment because it was well established under common law in 1791 VI. Summary

i. JMOL 1. Reasonable Jury Standard 2. Rule 50(a)

ii. RJMOL 1. Reasonable Jury Standard 2. Rule 50(b)

iii. Motion for a New Trial 1. Common Law/Against the Weight of the Evidence standard

a. Or, excessive damages that shocks the conscience b. Or, some defect in the trial, thus making it unfair

2. Rule 59(a) VII. Fact-Finding in Trials Without a Jury

a. Rule 52(c) i. Bench trial equivalent of Rule 50(a) motion for JMOL

ii. Obviously, “no reasonable jury” standard does not apply b. Rule 52(b)

i. Bench trial equivalent of Rule 50(b) RJMOL ii. Obviously, “no reasonable jury” standard does not apply

c. Rule 59(a)(2) i. Bench trial equivalent of Rule 50(a)(1)

ii. Common law standard replaced with equity standard Appeals

I. Three Building Blocks of the Appeals System a. Appealability

i. Final Judgment Rule 1. 28 USC § 1291 – in most cases, you must wait until a case

is over before you can file an appeal 2. Exceptions:


a. Allows interlocutory review to prevent considerable harm

b. Mandamus – action initiated by court of appeals against trial judge/court, alleging highly prejudicial/egregious usurpation or abuse of discretion

b. Reviewability i. A ruling that otherwise was not appealable by itself (pretrial

discover order, etc) may be reviewable once a later appealable order has let the case come to the court of appeals

ii. Might decline to review if error appears to have been harmless c. Standard of Review

i. Three basic standards 1. De Novo

a. No deference to the trial court’s view, usually on questions of law

2. Clearly Erroneous a. Quite deferential to the trial court – when factual

findings are made by judges rather than juries b. “Definite and firm conviction that a mistake has

been committed” c. Reviews factual findings only if error is clear

(equivalent to reasonably jury standard) 3. Abuse of Discretion

a. Much deference to trial court b. Appellate court must conclude that ruling is outside

a generally considerable range of discretion appropriately left to trial judge

c. Deals w/judge’s discretionary application of law to the facts

Judgments

I. General a. Principle underlying preclusion – once a party has had a chance to litigate

a claim, it usually ought not to have another chance to do so b. Judgments must be FINAL and VALID in order to have preclusive effect

i. Also must be personal, and decided on the merits c. Claim Preclusion (Res Judicata)

i. Generally, applies only to the same parties, if they’re meeting again in second case

ii. Bars things that should have been brought up in the first case, arising from the same transaction or occurrence, but were not

iii. Forbids a party from relitigating a claim that should have been raised in former litigation, if the claim comes out of the same “nucleus of operative facts”

iv. Merger and bar


1. If the judgment is in favor of Π, claim is extinguished and “merged” into the judgment

2. If the judgment is in favor of ∆, claim is extinguished, and judgment bars a subsequent action on that claim

3. Restatements § 24 prevents “splitting” claims 4. “transaction” – means a factual grouping related in time,

space, origin, or motivation. a. Do the cases arise out of the same set of facts?

v. Rush v. City of Maple Heights 1. Only a single cause of action arises from a wrongful act 2. Necessary to prevent multiplicity of suits, burdensome

expense, delays to Πs, and vexatious litigation d. Issue Preclusion (Collateral Estoppel)

i. Deals with things that have actually been litigated ii. When an issue of fact or law is actually litigated and determined by

a valid judgment, such that the determination is conclusive in a subsequent action between the parties, whether on the same or different claims

1. We don’t want to waste resources on a question again when the question has already been answered

iii. Where issues or matters of law were decided in Case 1, and are relevant to Case 2, these issues will be taken out of Case 2 and simply be established as true

1. Must have confidence in quality of Case 1 judgment iv. For issue preclusion to have effect, there must have been:

1. A valid an final judgment 2. An issue that was actually litigated 3. A determination that was essential to the judgment

a. If the above 3 occur, then the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim

v. Exceptions to the General Rule of Issue Preclusion 1. Proceedings where issue was decided was insufficiently

likely to produce a ruling worthy of preclusive effect 2. Public interest considerations

e. Privity i. Relationship between 2 parties that is sufficiently close as to bind

them both to an initial determination at which only one of them is present

f. Defenses i. To use defenses of Res Judicata or Collateral estoppel, remember

to assert an 8(c) defense g. Distinguishing Estoppel

i. Direct Estoppel 1. Issue preclusion when prior action was on the same claim

ii. Collateral Estoppel


1. Issue preclusion in a 2nd action on a different claim h. Involvement of a NEW PARTY

i. Defensive collateral estoppel 1. A, B, C involved in accident. A sues B and loses. A sues C. 2. Third party, C, uses finding in first case as a shield/defense

from repetitive litigation 3. Defensive collateral estoppel is often allowed

ii. Offensive collateral estoppel 1. A sues B. B loses. D (another passenger) sues B. 2. Third party, D, uses first judgment as a sword against B. 3. Offensive collateral estoppel is frowned upon

iii. Old rule had been mutuality – One wasn’t allowed to take advantage of a finding in a second case unless he was bound by the first finding (basically restricting the ruling to the parties of the first case)

iv. New rule: Move away from mutuality 1. There are often good reasons to permit a party who is not

mutually locked up to take advantage of the first litigation as a DEFENSIVE SHIELD

v. Nonmutual issue preclusion – someone who was not a party in the 1st case seeks to take advantage of rulings against its present adversary, who was a party to both proceedings

i. Problems with allowing Offensive Collateral Estoppel

i. Incentive for Πs to adopt a “wait and see” approach, hoping to

bandwagon on another Π’s favorable action

1. Also increases litigation b/c Πs will not be incentivized to join the first case

ii. Unfair to ∆

1. If in ∆’s first action he’s sued for small damages and doesn’t vigorously defend, especially if future suits are unforeseeable

iii. Inconsistent Judgments 1. Courts still have broad discretion to see where it may be

applied a. It was allowed in Parklane Hosiery Co. because the

original plaintiffs had sought an injunction in case 1, and the plaintiffs in case 2 sought damages

b. If someone wants to offensively use collateral estoppel, he needs to not only meet the basic requirements of issue preclusion, but also show

there’s no significant prejudice to ∆ j. Constitutionality – 7th amendment

i. Does the use of offensive collateral estoppel violate ∆’s 7th amendment right to a trial by jury?


1. No, b/c in common law, litigant was not entitled to have a jury determine issues that had previously been adjudicated in equity

Joinder

I. Transactionalism – All theories and persons involved in a transaction or occurrence should be capable of being joined a. Two questions to ask for any claim or party proposed to be joined:

i. Does a Federal Rule permit the joinder? 1. No rule � no joinder

ii. Does the court have independent subject matter jurisdiction and personal jurisdiction?

1. No subject matter jurisdiction � no joinder unless supplemental jurisdiction allows it

2. No personal jurisdiction � no joinder b. Key principle of joinder: Efficiency

II. Claim Joinder a. Permissive Joinder (Rule 18)

i. 18(a) � “A party asserting a claim, counterclaim, crossclaim, or third party claim may join as independent or alternative claims, as many as it has against an opposing party”

1. Bring ‘em if you got ‘em 2. The claims do NOT need to arise from the same transaction

or occurrence 3. PERMISSIVE, not mandatory

a. BUT, claims can be lost if not brought i. Only if they arise from the same transaction

or occurrence ii. This is because of claim preclusion

b. Counterclaim and Crossclaim (Rule 13)

i. Counterclaim - ∆’s claim against Π 1. 13(a) � compulsory counterclaim

a. A pleading MUST state as a counterclaim any claim that the pleader has against an opposing party that

arises out of the transaction or occurrence b. MANDATORY – use it or lose it

2. 13(b) � Permissive Counterclaim a. A pleading MAY state as a counterclaim against an

opposing party any claim that is not compulsory b. PERMISSIVE, not mandatory

ii. Crossclaim – claims on the same side of the “v” iii. Painter v. Harvey

1. Test for “same transaction or occurrence”: a. Evidentiary Similarity/Logical Relationship

2. Four factors for compulsory counterclaim

a. Issues of fact and law largely the same


b. Is there issue preclusion on the counterclaim?

c. Will same evidence support or refute the claim and counterclaim?

d. Logical relationship between claim and counterclaim

III. Party Joinder a. Permissive Joinder (Rule 20)

i. Joinder of multiple Πs and ∆s

ii. The Π is the one doing the joining iii. Rule 20(a)(1) � Joinder of plaintiffs

1. 2 conditions: a. Arise out of the same transaction, occurrence, or

series of occurrences

b. Any question of law or fact common to all Πs iv. Rule 20(a)(2) � Joinder of multiple defendants

1. 2 conditions: a. Arise out of the same transaction, occurrence, or

series of occurrences

b. Any question of law or fact common to all ∆s 2. PERMISSIVE, not mandatory 3. Alexander v. Fulton County

a. What does series of transactions or occurrences mean?

i. 2 prongs � not immediateness of relationship, it’s the:

1. Logical relationship 2. Some question of law or fact must be

shared b. In this discrimination case, the behavior leading to

the discrimination was the same throughout a series of occurrences

v. Rule 14 � Impleader

1. Rule 14(a) � When a ∆ may bring a 3rd party a. May serve a summons/complaint on a nonparty who

is or may be liable to it for all or part of the claim against it

b. ∆ files against another party

i. New party becomes 3rd party ∆

ii. Original ∆ becomes 3rd party Π

c. Basic Theory – if ∆ is liable to Π, then 3rd party ∆ is

liable to original ∆

i. If ∆ is NOT liable, claim against 3rd party ∆ goes away

ii. But once a third party ∆ is in, they may file claims or have claims brought against them

by/against 3rd party Π and original plaintiff


iii. Classic forms of impleader 1. Indemnity � 100% liability on the

part of the 3rd part 2. Contribution � some lesser liability

2. Lehman v. Revolution Portfolio LLC a. Bank’s first 2 claims against Rothman go away, b/c

both are brought under Rule 14, and the claims

against the original ∆ had been settled, eliminating the other claims

b. Final claim against Rothman stays b/c Rule 14 states that parties who are or MIGHT BE liable can be joined

c. The final claim stays, though unrelated, b/c it was attached to a valid rule 18 claim

vi. Rule 13(g) � Cross-claims 1. Same idea as compulsory counterclaims of 13(b)

a. Same transaction or occurrence b. Claims between parties on the same side of the

litigation (same side of the “v.”) vii. Rule 19 � Involuntary Joinder

1. This rule does not overrule the jurisdictional requirements of the courts

2. Rule 19(a) a. Circumstances under which a party must be joined:

i. Complete relief is impossible without them

1. Protects Π ii. An absent party would have an interest

1. Their interest would be impaired or impeded

a. Protects absent party iii. There could be inconsistent rulings

1. Protects ∆ b. These parties must be “joined if feasible”

3. Rule 19(b)

a. Weighs and balance the interests of Π, ∆, necessary party, and the courts, if a necessary party cannot be present

b. Test: In equity and good conscience, should the case be dismissed if an indispensable party cannot be brought?

c. Four factors to help a court determine whether or not to dismiss:

i. The extent to which a judgment rendered in the person’s absence might prejudice that person or existing parties


ii. The extent to which any prejudice could be lessened or avoided by:

1. Protective provisions in the judgment 2. Shaping the relief 3. Other measures

iii. Whether a judgment rendered in the person’s absence would be adequate, AND

iv. Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder

4. Sometimes, a ∆ will try to join another ∆ who would be considered indispensable, even though the court would not

have jurisdiction over the new ∆, just to get the case dismissed

5. Reasons why people who should be brought into a case cannot be brought:

a. Subject Matter Jurisdiction b. Personal Jurisdiction c. Venue d. Sovereign Immunity

6. Makah Indian Tribe v. Verity a. Two-part analysis to determine whether a party is

“indispensable”: i. Is the party necessary to the suit?

ii. Is the party indispensable so that in equity and good conscience the suit should be dismissed?

b. Two-part analysis to determine if a party is “necessary”:

i. Is complete relief possible among those already parties to the suit?

ii. Does the absent party have a legally

protected interest in the suit? 1. More than just a financial stake 2. Would the legally protected interest

be impaired or impeded by the suit? iii. Would the risk of inconsistent rulings affect

the parties present in the suit? c. Solutions to indispensable parties being unable to

come to suit: i. If an adequate remedy, even if not complete,

can be awarded without the absent party, the suit must go forward

ii. If no alternative forum is available to the plaintiff, the court should be “extra cautious” before dismissing the suit


viii. Rule 24. Intervention of Right and Permissive Intervention. 1. Rule 24(a) Intervention of Right

a. This is NOT up to the court’s discretion/choosing i. If you meet the standards, the court must

allow you to intervene ii. Standards:

1. Right given by federal statute, OR 2. Claiming an interest relating to the

property or transaction that is the subject of the action, OR

3. The standards of Grutter b. Grutter v. Bollinger

i. Four standards that must be met to be entitled to intervention of right:

1. Motion to intervene was timely 2. The party has a substantial legal

interest 3. An ability to protect that interest will

be impaired in the absence of legal action, AND

4. The parties already before the court may not adequately represent that interest

2. Rule 24(b) Permissive Intervention 3. Permissive – in this context, means if the COURT permits

you to join, you may join the suit a. You must have some “common question of law or

fact” b. The court can put significant limits on your

participation in the case 4. What is a substantial legal interest, or a legally protected

interest? These terms are used in the Makah and Grutter cases

a. General Rule of Law: Don’t ever assume that the same words used in two different places mean the same thing

I. Personal Jurisdiction a. Intro

i. How far can a state reach to bring someone into a suit? ii. If a court should not have in personam jurisdiction, file a 12(b)(2)

motion to dismiss

iii. Mostly a doctrine concerning ∆’s objections to jurisdiction, b/c Π consents to personal jurisdiction by filing a claim

b. Personal Jurisdiction Checklist – BOTH must occur i. Statutory Authority – Long-arm statutes


1. Authorizes “long arm of the law” to reach into another state so court can exercise jurisdiction over a nonresident

2. Most states allow this statute to reach to the furthest extent allowable under the due process clause

ii. Constitutional Authority – Due Process Clause 1. Due process requires that you be given adequate notice of

the suit, and the Court must have personal jurisdiction 2. Two part analysis

a. Power Prong b. Convenience Prong

3. If the judgment rendered violates the due process clause, it is not FINAL nor VALID, thus having no preclusive effect

c. International Shoe (1945) – 2 part analysis, BOTH must occur

i. “Minimum contacts” w/forum state (when ∆ is a nonresident). Factors:

1. Defendant who deliberately chooses to take advantages of the “benefits and protections of the laws” of a state – “purposeful availment”

2. Depends on “quality and nature” of contacts

3. Minimum contacts does not subject ∆ to jurisdiction in a state for simply ANY claim

4. Spectrum of contacts a. No contacts

i. No personal jurisdiction w/o consent b. “Casual” or “isolated” contacts

i. No personal jurisdiction c. Single contacts

i. Maybe, b/c of “quality and nature” of contacts

d. Continuous but limited (ongoing business relationship)

i. Yes, specific personal jurisdiction e. “Systematic and Continuous” activities

i. So substantial to justify “general

jurisdiction” that ∆ would expect to be subject to suit there

ii. Must withstand “traditional notions of fair play and substantial

justice” 1. There must be sufficient contacts to make it reasonable and

just to permit personal jurisdiction 2. Protects defendants

d. McGee i. If there is a single contact, focus on the nature and quality and

circumstances of that contact e. Hanson – “purposeful availment”


i. Has the defendant voluntarily done something to obtain the benefits of the state’s law?

ii. Aim of “purposeful availment” test is to evaluate ∆’s contacts w/the state to determine if they are of the “nature and quality” to support personal jurisdiction

iii. If there is purposeful availment, there are minimum contacts f. Worldwide Volkswagen

i. Purpose of “minimum contacts” – 2 prong analysis 1. Power Prong – Due Process Clause

a. State lines are still relevant

b. ∆ Reasonably anticipates being haled into the courts of the state (more than just foreseeability)

i. Purposely availed ii. Of privileges

iii. Invoked benefits + protections of the laws of the state

c. Reasonableness of asserting personal jurisdiction

over ∆ must be assessed in the context of the federal system

i. Foreseeability alone is not sufficient for personal jurisdiction via due process clause

1. Must be strong enough that ∆ should reasonably anticipate being haled into court there

ii. When a corporation “purposefully avails itself of the privilege of conducting activities within the forum state,” it has clear notice it is subject to suit there

2. Inconvenience Prong

a. Protects ∆ against burdens of litigating in distant/inconvenient forum

b. “Traditional notions of fair play and substantial justice”

c. 5 factor inquiry for this prong:

i. Burden to Π

ii. Burden to ∆ iii. Burden to state courts iv. Shared interest of entire system v. Interstate interest

ii. Summary 1. Two tests

a. Federalism test

i. Can the ∆ “reasonably anticipate being haled into court” in that state?


1. Has ∆ availed himself of the privileges of conducting business in that state?

2. Has the ∆ invoked the protections and benefits of the laws in that state?

b. Inconvenience Test i. Five factors listed above

g. Asahi i. The placement of a product into the stream of commerce, without

more, is not an act of the ∆ purposefully directed toward the forum State

1. The “substantial connection” b/w ∆ and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed

toward the forum state 2. Additional conduct that MAY indicate an intent to serve

the market in the forum state a. Designing the product for the market in the forum

State b. Advertising in the forum State c. Establishing channels for providing regular advice

to customers in the forum State d. Marketing the product through a distributor who has

agree to serve as the sales agent in the forum State h. Zippo

i. Internet Contacts – A sliding scale

1. On one end, there are situations where ∆ clearly does business over the internet

a. Contracts are entered into with those in a foreign jurisdiction that involve the knowing and repeated transmission of computer files

b. Personal jurisdiction would be proper

2. On the other end, there are situations where ∆ has simply posted information on a website which is accessible to users in foreign jurisdictions

a. A passive web site that does little more than to make info available

b. Not grounds for personal jurisdiction 3. In the middle, situations are murkier

a. User exchanges information with host computer b. The exercise of jurisdiction is determined by

examining: i. The level of interactivity

ii. The commercial nature of the exchange of information that occurs on the website


c. Ask: Is there a purposeful transmission of information to individuals in a specific state?

i. Other bases for Jurisdiction i. General jurisdiction – the power of the court to exercise

jurisdiction over the person of the defendant even though the law has nothing to do with the context of that suit

1. Bird v. Parsons

a. General jurisdiction is proper only where ∆’s contacts with the forum state are of such a continuous and systematic nature that the state may

exercise personal jurisdiction over ∆ even if the

action is unrelated to the ∆’s contacts w/ the state b. General jurisdiction is more often appropriate when

∆ has physical presence in the state ii. Specific jurisdiction

1. Occurs when a state exercises personal jurisdiction over a defendant in a suit arising out of related to the defendant’s contacts with the forum

iii. Presence – General jurisdiction is appropriate when a ∆’s contacts w/a state are so extensive that it is deemed to be “present” in the state

1. Burnham – transitory presence a. Jurisdiction based on physical presence alone

constitutes due process i. The standard of Int’l Shoe was developed as

an analogy to physical presence ii. Physical presence has ALWAYS been

enough for jurisdiction 1. Exception: A person may enter a

state to file a 12(b)(2) motion, and may not be served with process at that time; also, may not be served if he was lured into state fraudulently

iv. Consent to Personal Jurisdiction 1. Carnival Cruise Lines v. Shute

a. Consent to a particular forum can be given via contract

i. Can be superseded only if Π satisfies “heavy burden of proof” on grounds of inconvenience

b. Forum clauses should control absent a strong showing that it should be set aside

j. Personal Jurisdiction in the Federal Courts i. Rule 4(k) – Territorial Limits of Effective Service

1. FRCP long-arm statute


2. Basic idea: a federal court has as much authority/jurisdiction as a state court in that state

a. Bound by all the same statutory limitations/constitutional limitations

b. 4(k)(1)(a) – Service of summons or filing a waiver of service is effective to establish jurisdiction over a person of a defendant who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located

II. Subject Matter Jurisdiction a. General Notes

i. A court must have jurisdiction over the subject matter in order to adjudicate

ii. Defects in subject matter jurisdiction cannot be waived by the parties

iii. A 12(b)(1) motion is a motion to dismiss for lack of subject matter jurisdiction

1. Subject matter jurisdiction can never be waived, which makes it unique

iv. Types of jurisdiction 1. State courts have general jurisdiction, meaning they can

hear any case unless some statutory or constitutional provision bars it

2. Federal courts have limited jurisdiction, meaning they only have jurisdiction affirmatively granted to them through the U.S. Constitution and federal statutes

b. Two types by which Congress has granted authority via statutes i. Federal Question Jurisdiction

1. The case must be one that is “arising under” the U.S. Constitution and/or some federal law

ii. Diversity Jurisdiction 1. The opposing parties are from different states

c. What kinds of cases does Article III of the U.S. Constitution allow federal courts to hear? (The nine heads of jurisdiction)

i. All cases in Law and Equity arising under the Constitution, laws, and treaties of the United States

ii. All cases affecting ambassadors, other public ministers, and consuls

iii. All cases of admiralty and maritime jurisdiction iv. Controversies in which the United States is a party v. Controversies between two or more states

vi. Cases between a state and citizens of another state vii. Cases between citizens of different states

viii. Cases between citizens of the same State claiming lands under grants of different states


ix. Cases between a state, or the citizens thereof, and foreign states, citizens, or subjects

1. We mostly deal with (i) and (vii-ix) d. Jurisdictional statutes typically found in 28 U.S.C. §§1330-1369

i. § 1331 – Grant of jurisdiction for federal question ii. § 1332 – Grant of jurisdiction for diversity

iii. § 1367 – Grant of jurisdiction involving both federal question and diversity

e. Federal Question Jurisdiction i. What does it mean for a case to “arise under” federal law?

1. The “Well-Pleaded Complaint” Rule a. The COMPLAINT must demonstrate that the case

“arises under” the Constitution or laws of the United States

i. It is not enough if only the ANSWER to the complaint states a defense that arises under the Constitution or laws of the United States

ii. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserted that the defense is invalidated by some provision of the Constitution or US law

2. Louisville & Nashville Railroad Co. v. Mottley ii. § 1331 (Federal Question)

1. Gives district courts original jurisdiction over all civil actions arising under the laws, treaties, and Constitution of the United States

2. Merrell Dow a. A case only “arises under” federal law if federal law

supplies the cause of action i. It must provide the right

ii. It must provide the remedy b. A case may “arise under” federal law where the

vindication of the right of a state law “necessarily turns on a construction of federal law”

3. Grable a. There must be a “real and substantial dispute” over

federal law in order for federal question jurisdiction to apply

i. Here, “substantial” means nonfrivolous ii. There must be some indication that the suit

is allowable. Ask: 1. What was the Congressional intent? 2. Will allowing this sort of case shift

too many cases into the federal


system, or give too much power to the federal system?

f. Diversity Jurisdiction i. § 1332

1. Two requirements a. Parties must be of diverse citizenship b. The amount in controversy must exceed $75,000

ii. Complete Diversity Rule 1. If there are multiple parties, no plaintiff can be of the same

citizenship as any defendant 2. Constitution itself only requires minimal diversity, but §

1332 requires complete diversity iii. Determining Citizenship

1. Sheehan v. Gustafson (Presence + Intent to Remain) a. For diversity jurisdiction, the terms “domicile” and

“citizenship” are synonymous i. There is a two part test for domicile; both

must occur simultaneously 1. The individual must be present in the

purported state of domicile, AND 2. The individual must have intent to

remain there indefinitely a. You are a citizen of the last

place where both of these things were true

b. You can only be a citizen of ONE state at any given time

ii. In Sheehan, the contacts in Minnesota were primarily business contacts, while the contacts in Nevada were primarily personal contacts, which showed an intent to remain

2. Peterson v. Cooley - Corporations a. A corporation is considered a citizen of any State by

which: i. It has been incorporated AND

ii. Of the State where it has its principal place of business

b. Two tests to determine a corporation’s principal place of business:

i. “Nerve Center” test 1. Makes the “home office,” or place

where the corporation’s officers direct, control, and coordinate activities, determinative

ii. Place of Operations test


1. Looks to the place where the bulk of corporate activity takes place

iii. Supreme Court uses the “nerve center” test in Peterson, but never really specifies which test should normally be applied

c. ASK TIDMARSH ABOUT THIS DURING REVIEW (Wal-Mart) – Can a corp. be a citizen of more than 1 state?

iv. Amount in Controversy (Del Vecchio v. Conseco, Inc.) 1. Multiple persons’ claims cannot be combined to reach the

minimum amount in controversy (i.e., you cannot add the claims of all plaintiffs together in order to reach more than $75,000)

a. Exception: A single plaintiff may aggregate multiple claims to make it add up to more than $75,000

b. In order for a complaint to get thrown out of court, there has to appear to a legal certainty that the plaintiff can’t get more than the alleged amount in controversy (e.g., suing for $75,000 for a hangnail)

g. Additional Notes i. Ways to stay in state court (if you’re a plaintiff)

1. Avoid § 1331 a. Do not have any federal questions in your complaint

2. Avoid § 1332 a. Join a nondiverse defendant b. Bring a claim for $75,000 or less

III. Supplemental Jurisdiction a. Pendent Jurisdiction

i. Three factors to determine if it is allowable (SubNucT) 1. Claim must be substantial 2. State and Federal claims must arise out of a common

nucleus of operative fact 3. Claims would ordinarily be tried together

ii. United Mine Workers v. Gibbs 1. Court allowed pendent jurisdiction, but there was no statute

at the time authorizing them to do so iii. Main idea – common nucleus of operative fact (CNOF)

1. CNOF = same transaction or occurrence (joinder language) a. Rule 18 allows a party to bring any claim b. Subject matter jurisdiction says that the claim must

arise out of a common nucleus of operative fact in order to maintain federal jurisdiction

b. Ancillary jurisdiction

i. Π makes a non-diverse § 1331 claim

ii. ∆ counterclaims on a state law claim


1. As long as the counterclaim is a compulsory, 13(a) counterclaim, federal court has ancillary jurisdiction

2. This was the issue in Painter v. Harvey c. Pendent-party jurisdiction

i. Claims asserted by additional Πs or against additional ∆s

1. Claim of at least 1 Π against 1 ∆ lies within federal jurisdiction

a. Others do not ii. Courts do not like pendent-party jurisdiction

iii. Pendent, ancillary, and pendent-party jurisdiction all now authorized via §1367

d. § 1367 i. (a) If a district court has original jurisdiction under § 1331 or §

1332, it can have supplemental jurisdiction over other claims: 1. That are so related to claims in the action within such

original jurisdiction that they form part of the same case

or controversy under Article III a. Substantial claims b. Common nucleus of operative fact c. Ordinarily tried together

2. If there is one claim under § 1331, and all the others are transactionally related, the federal court can hear the case

ii. (b) Original jurisdiction under § 1332 1. Attempt to preserve § 1332 standards of complete diversity

and amount in controversy a. If a new party is non-diverse or the amount in

controversy is less than $75K, diversity is no longer met

2. No supplemental jurisdiction is granted where it would compromise a requirement of complete diversity or amount in controversy (applies only when actions are based solely on § 1332)

a. No supplemental jurisdiction for claims BY Π against persons named as parties under

i. Rule 14 3rd

party

1. Π (CA) � ∆ (NV)

a. ∆ joins 3rd party (CA)

b. Π’s claim not allowed

c. ∆’s claim against 3rd party IS allowed

ii. Rule 19 Necessary Party (∆∆∆∆)

1. Π (CA) � ∆ (NV)

a. ∆ (NV) joins another ∆ (CA)

b. Π’s claim against new ∆ not allowed

iii. Rule 20 Permissive Joinder


1. Π (CA) � ∆ (NV)

a. Π joins another ∆ (CA)


iv. Rule 24 Intervention

1. Π (CA) � ∆ (NV)

a. New ∆ (CA) wants to intervene


v. Rule 19 Necessary Party (ΠΠΠΠ)

1. Π (CA) � ∆ (NV)

a. New Π (NV) or <$75K

b. New Π’s claim not allowed

c. New Π may be indispensable vi. Rule 24 Intervention

1. Π (CA) � ∆ (NV)

a. New Π (NV) or <$75K

b. New Π’s claim not allowed

vii. What about Rule 20 joinder of new Πs?

1. Π wants to join new Π (NV) or <$75K

2. Congress forgot to mention 3. Exxon Mobil decides this

iii. Exxon Mobil Corp. v. Allapattah Services 1. If any individual plaintiff has a claim for more than

$75,000, other Πs may be joined, even if their claims are for less

IV. Removal Jurisdiction and procedure a. Only defendants can remove the case from state court to federal court

i. Exception: If the case had been filed in ∆’s home state, he cannot remove

ii. If ∆ prefers to hear federal question or diversity case in state court, and it was filed in state court, he can stay

iii. If a question was originally filed in federal court, ∆ cannot remove it to state court

b. § 1441 – Removal Jurisdiction i. If it isn’t a federal question case, none of the parties can be from

the state in which the action is brought 1. If they are, it stays in state court

ii. Ritchey v. Upjohn Drug Co.

1. All ∆s must remove together within 30 days of when the

case becomes removable 2. Time limit starts with service of process, not filing of

complaint


iii. Rule 81 – Notice of Removal 1. Once a case is removed, nothing that happens afterwards in

state court matters

2. If Π believes removal was inappropriate, he can file a motion to remand

a. Judge’s decision on this matter is not appealable iv. Lanford v. Prince George’s County

1. If additional parties arises from the same common nucleus of operative fact

a. § 1367 (a) allows supplemental jurisdiction 2. If the parties do NOT arise from a common nucleus of

operative fact a. § 1441 (c)

i. Allows court to split up claims 1. In this case, the common claims

stayed in federal court, and the unrelated claim was sent back to state court

ii. This section seems either 1. Irrelevant, OR 2. Unconstitutional

V. Venue a. § 1391 – Allowable Venues

i. (a) Diversity cases

1. Venue in a judicial district where any ∆ resides if all ∆s reside in the same state

2. Venue in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred

a. Can lead to a situation in which certain ∆s cannot be joined b/c there is no personal jurisdiction

3. If all ∆s not from the same state AND no district in which a substantial part of events or omissions occurred

a. In any district in which any ∆ is subject to personal jurisdiction at the time the action is commenced

i. Only allowed if 1 & 2 are not met ii. (b) Federal Question cases

1. Only difference � (b)(3)

a. In any district in which ANY ∆ may be found iii. (c) Creates much different rules for corporations

1. Corporations are residents in more districts than individuals a. If a corporation would be considered a resident in

any district in a state in which contacts would subject it to personal jurisdiction if it were a separate state

b. § 1404 Change of Venue


i. Allows for transfer to any other district or division where the case originally might have been brought

1. For the convenience of the parties 2. In the interest of justice

c. § 1406 Cure of Waiver i. District court of a district in which is filed a case laying venue in

the wrong division or district shall dismiss, or if it be in the interest of justice, transfer to any district or division in which it could have been brought

ii. Former doctrine of “forum non conveniens” 1. Allowed dismissal of a case that was brought in an

inconvenient forum a. Replaced by § 1404 b. Still has relevance in international litigation (Piper)

VI. State Law in Federal Courts (The Erie Doctrine) a. An issue for §1332 cases – federal courts deciding state law issues b. 28 USC § 1652 The Rules of Decision Act

i. The laws of the several states, except where the Constitution or Acts of Congress otherwise require, shall be regarded as rules of decision in cases where they apply

c. Erie Railroad Co. v. Tompkins i. Federal courts must apply state substantive law

ii. Overruled Swift v. Tyson d. Developing and applying Erie in a procedural context

i. 1938 – Erie decided and FRCP adopted ii. Question then: Should we apply state procedural rules as well as

substantive rules? 1. Guaranty Trust Co. of New York v. York

a. Outcome-determinative approach i. If the application of a federal rule would

lead to a significantly different outcome than the application of the state rule, state rule must be applied

ii. Two approaches 1. Ex ante

a. Party knows the rule favors him before the fact and chooses forum based on that

i. Forum shopping 2. Ex post

a. Difference in rule becomes relevant at a certain point in litigation

iii. Court takes an ex ante stance 2. Ragan


a. On a question of the statute of limitations, the court takes an ex post approach

i. Court rule that if the effect of a rule was outcome determinative, state law should be used

3. Hanna v. Plumer – CURRENT LAW a. Court rejects ex post method

i. Because every decision is outcome-determinative

b. Holds: i. State SUBSTANTIVE law rules

ii. Federal PROCEDURAL law rules 1. There is statutory authority for FRCP

a. Rules Enabling Act 2. Every Federal Rule of Civil

Procedure MUST: a. Pass the Rules Enabling Act b. Be Constitutional

3. FRCP cannot “abridge, enlarge, or modify any substantive rights”

4. Supreme Court has never struck down a FRCP as unconstitutional

iii. Concerns in cases following Erie 1. Forum-shopping 2. The inequitable administration of the law

a. Outcome-determinativeness idea is recast in terms of these two policies

Personal Jurisdiction: States vs. States

I. Introduction a. Does a particular court have the power to adjudicate a case? b. Potential conflict

i. Federalism: sharing power among the states c. How far can a state reach to bring someone into a suit? d. Remember, if you don’t believe court has personal jurisdiction over you,

Rule 12(b)(2) motion to dismiss e. Mostly a doctrine that concerns Ds objecting (b/c if P files a complaint in

a particular state, it means P has consented to personal jurisidiction) i. Ds can waive right to assert 12(b)(2)…but cannot do so for subject

matter jurisdiction f. More than 1 state can have pesronal jurisdiction to adjudicate suit against

D II. Personal Jurisdiction Checklist (must satisfy both in order)

a. 1) Statutory Authority - Long Arm Statutes


i. Authorizes “long arm of law” to reach into another state so court can exercise jurisdiction over non-resident

ii. Many states allow “long arm statute” to reach to the furthest extent allowed under DPC

iii. Others use a Model Act’s following conduct factors 1. Transacting any business in this state 2. Contracting to supply services/things in this state 3. Causing tortious injury by act/omission in this state 4. Tort created outside of state but D regularly does/solicit

business in state (think defamation case) 5. Having an interest in, using, or possessing real property in

this state 6. Contracting to insure any person, property or risk located

within state at time of contracting b. 2) Constitutional Authority – Due Process Clause � 2 part analysis (if

judgment rendered violates DPC, it is NOT FINAL and VALID, thus,

NO PRECLUSIVE effect) i. Power Prong

ii. Convenience Prong C+S = Continuous and systematic contacts

Remember to always figure out what activities ∆∆∆∆ is engaged in. Then determine how

C+S.

Related (suit related to activities). Specific jurisdiction

Unrelated (suit unrelated to activities). General Jurisdiction

C+S (maybe to do w/ volume of business, but also whether person/corp got benefit/protection of forum state)

Yes personal jurisdiction (Shoe)

Depends. Yes if it’s really really C+S Otherwise, no. Sliding scale – depends on fact specific inquiry

Not C+S Depends. WW VW Asahi Bird v. Parsons

No personal jurisdiction

III. Pennoyer v. Neff

a. Foundation personal jurisdiction b. State court is depriving person of DPC if they adjudicate w/o power to do

so c. Have to be physically present (implied consent) in state at time P sues D d. Not law anymore

IV. International Shoe (1945) – 2 part analysis


a. (1) “Minimum contacts” w/ forum state (when ∆∆∆∆ is a nonresident) (at

time when ∆∆∆∆ acted)…premised on

i. ∆ who deliberately chooses to take advantages of the “benefits and protections of the laws” of a state…later on in Hanson (purposeful availment)

ii. Depends on “quality and nature” � tough to define

iii. Minimum contacts does not subject ∆ to jurisdiction in a state for simply ANY claim

iv. Spectrum of contacts: 1. No contacts

a. No personal jurisdiction w/o consent 2. “Casual” or “isolated” contacts

a. No personal jurisdiction 3. Single contacts

a. May be b/c of “quality and nature” � specific personal jurisdiction

4. Continuous but limited (ongoing business relationship) a. Yes specific personal jurisdiction

5. “Systematic and continuous” activities

a. So substantial to justify “general jurisdiction” that ∆ would expect to be subject to suit there

b. (2) But must withstand “traditional notions of fair play and substantial

justice” are not offended (protects ∆s) i. sufficient contacts to make it reasonable and just to permit personal

jurisdiction V. McGee (1957) – single contact – focus on nature and quality and

circumstances of contact a. Single insurance contract enough to confer personal jurisdiction b. Survives inconvenience to D test c. CA has manifest interest in protecting its residents

VI. Hanson (1958) – outlier b/c the court was trending toward the idea of once you’ve established contacts in the state, and the state has an interest, and it’s not too inconvenient to D, then personal jurisdiction a. “Essential” for personal jurisdiction that there is an act by which D

“purposefully avails” itself of the “privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law”

i. Ask: has D done something voluntarily to obtain the benefits of the state’s law?

ii. Aim of this “purposeful availment” test is to evaluable a D’s contact sw/ the state to determine if they are of the “quality and nature” to support personal jurisdiction

iii. If there is purposeful availment, fair to say that there is minimum contacts

VII. Worldwide VW (1980) – rights/inconvenience of ∆ vs. interests of state a. Purpose of “minimum contacts” – 2 prong analysis


i. Power Prong (always need to satisfy) – Due Process Clause (Hanson) – Federalism coequal sovereigns

1. relaxed over years due to interconnectivity of economy 2. state lines are still relevant (legal of Pennoyer) 3. D reasonably anticipates (more than just foreseeability)

a. Being haled into courts of the state i. Purposefully availed

ii. Of privileges iii. Invoked benefits + protections of laws of

state 4. “Reasonableness of asserting personal jurisdiction over D

must be assessed in the context of our federal system” a. “Foreseeability” alone is not sufficient for personal

jurisdiction under DPC b. Foreseeability is not irrelevant, but needs to be

strong enough that D should reasonably anticipate being haled into court there (allows D to structure their conduct or adjust their prices)

c. When a corporation “purposefully avails itself of the privilege of conducting activities within the forum state” then it has clear notice that it is subject to suit there and can structure its conduct around it

d. Whatever marginal revenues VW received by virture of the fact that their products are capable of being in OK is too far attenuated a contact to justify personal jurisdiction

ii. Inconvenience Prong (McGee)

1. Protects ∆ against burdens of litigating in distant/inconvenient forum

2. “Traditional notions of fair play and substantial justice” 3. 5 factor test for Inconvenience Prong:

a. Burden to Π

b. Burden to ∆ c. Burden to state courts d. Shared interest of entire system e. Interstate interest

VIII. Burger King a. Says you need to pass both the Power and Convenience prong tests…or

maybe if you pass the power test, you don’t automatically pass the less restrict McGee test

IX. Asahi – case that gets caught up in Inconvenience (McGee) test (already passed Power (Hanson) test). Is stream of commerce purposeful availment? a. Power – “minimum contacts” – federalism test

i. Minimum contacts must have basis in some act by which ∆ “purposefully avails itself of privilege of conducting activities


within the forum state, thus invoking the benefits and protections of its laws”

ii. Substantial connection w/ forum state iii. Need more purposeful action than the Stream of commerce idea

1. Mere awareness that stream of commerce may bring products into forum state does not convert mere act into “purposefully directing” toward the forum state

b. Convenience – 5 factors – “traditional notions of fair play and substantial justice”

i. Determines that it is unreasonable to exercise personal jurisdiction based on the 5 factor test

c. Notes i. Unanimous joining w/ Convenience prong analysis (that this case

doesn’t pass part 2 test) ii. But 4 disagree w/ federalism “minimum contacts” “purposeful

availment” test iii. May have been personal jurisdiction up to a certain point in this

case, but b/c Π got paid in settlement, the factors now weigh against it…you had it but you lost it

X. Zippo - Internet a. Power/Hanson “minimum contacts” analysis …Sliding scale…spectrum

i. Clearly personal jurisdiction: ∆ enters into contracts w/ residents involving knowing and repeated transmission of files

ii. Middle ground: Interactive websites where user can exchange info w/ host computer – must examine level of interactivity and commercial nature of the exchange

1. Proper if ∆ intentionally reaches beyond its boundaries to conduct business w/ foreign residents

2. Here, 3000 individuals and 7 ISPs constitute “purposeful availment” of doing business in PA (thus minimum contacts)

3. Consumption of ∆’s services in PA is NOT fortuitous like in WW VW

4. ∆ repeatedly and consciously chose to process PA residents apps

5. Concious choice � clear notice that ∆ is subject to suit (part of Due Process Clause)

iii. Clearly no personal jurisdiction: ∆ simply posts info on website which is accessible (passive)

b. Convenience/McGee test

i. State’s strong interest outweighs burden created by forcing ∆ to defend in PA

ii. ∆ cannot use Due Process Clause as a territorial shield to interstate obligations that have been voluntarily assumed

XI. Other bases for jurisidiction (beyond “minimum contacts”)


a. General jurisdiction – look down 2nd

column of box: When contacts

are so C+S that there is jurisdiction where activities are unrelated to

the suit.

i. Bird v. Parsons (internet)

1. ∆ connected w/ OH only in that they sold 4,666 internet domain name registrations (and they had website presence on internet)

2. General jurisdiction

a. Proper where i. Very C+S contacts & contacts are unrelated

to claim = general jurisdiction

ii. ∆’s contacts w/ forum state are so C+S++++ that doesn’t matter if the action is unrelated

to ∆’s contacts b. Tidmarsh: case doesn’t define exactly when it’s

continuous and systematic enough in order to justify personal juris.

i. Here, 4,600 registrations insufficient to establish general jurisdiction

ii. Maintained website on internet accessible to anyone is also insufficient

c. Less than continuous and systematic contacts, and contacts are unrelated to claim = no personal jurisdiction

d. General Jurisdiction is most often appropriate when

∆ has physical presence in state e. Internet: modern businesses who structure their

activities to take full advantage of e-commerce can reasonably anticipate activities will lead to suits

3. Specific jurisdiction a. Less than continuous and systematic contacts, but

contacts are related to claim, you still have a shot at personal jurisdiction

b. Very lenient standard for “related”/arising from

= Π’s claim “arises from” ∆’s contacts w/ state… “operative facts of the controversy”…but can also be “related” simply by having a “substantial connection”

c. Some courts use “but-for” test to determine whether claim is related to activity (cause of action would not have arisen but for contact/activities)

b. Presence – served w/ process while in state i. Burnham – “transitory presence”

1. nonresident was personally served w/ process while temporarily in forum state in a suit unrelated to activities in state


2. Scalia: idea of transitory presence is old a. Whole idea of Shoe minimum contacts analysis is to

serve as a proxy for presence b. And here, there is presence c. On any set of facts, presence is enough (Pennoyer)

3. Brennan: runs transitory presence through Shoe analysis a. Shoe generally increases jurisdiction (when D is

absent), but here, Shoe shrinks jurisdiction

b. Transitory presence might not be enough (when ∆ is present)

c. On another set of facts where there are less than minimum contacts, might not be good enough for personal jurisdiction

4. Exception: if ∆ was fraudulently lured into state by Π or was in state to participate in court proceedings

c. Consent – via contract; forum clause – can be superseded only if P satisfies “heavy burden of proof” on grounds of inconvenience

i. Carnival Cruise Lines, Inc. v. Shute

1. Πs agreed to sue only in FL – forum selection clause 2. No doubt Carnival Cruises has minimum contacts in WA.

But that is not the basis of their objection – they say Π agreed to sue only in FL.

3. No per se rule – look at reasonableness a. Weight and balance parties’ interests

4. Forum clause should control absent a strong showing that it should be set aside

a. No precisely defined circumstances that would make clause unreasonable

5. Here, ∆ had legitimate reasons for wanting such a clause

6. Π did not satisfy “heavy burden of proof” required to set aside clause on grounds of inconvenience. (Similar to

Burger King, where ∆s have to make a compelling case that the inconvenience prong undermines the power prong) (Whereas in Asahi, the incovenience prong did undermine the power prong)

XII. Personal Jurisdiction in Federal Courts a. Congress enacted limitation on federal personal jurisdiction b. As in state courts, exercise of personal jurisdiction in federal courts must

be consistent w/ both statutory and constitutional doctrines c. Rule 4(k) – Territorial Limits of Effective Service – Federal Court’s long

arm statute i. (1) Service of summons or filing a waiver of service is effective to

establish jurisdiction over a person of a D… 1. (A) Who could be subjected to the jurisdiction of a court of

general jurisdiction in the state in which the district court is


located (basically, federal court has as much PJ as a state court)

2. B, C, D are exceptions where Federal court enjoys MORE PJ than state courts

d. Rule 4(k)(1)(D) – very few federal statutes authorize nationwide service (antitrust laws, securities fraud provisions, ERISA)

Subject Matter Jurisdiction

VII. Subject Matter Jurisdiction a. General Notes

i. A court must have jurisdiction over the subject matter in order to adjudicate

ii. Defects in subject matter jurisdiction cannot be waived by the parties

iii. A 12(b)(1) motion is a motion to dismiss for lack of subject matter jurisdiction

1. Subject matter jurisdiction can never be waived, which makes it unique

iv. Types of jurisdiction 1. State courts have general jurisdiction, meaning they can

hear any case unless some statutory or constitutional provision bars it

2. Federal courts have limited jurisdiction, meaning they only have jurisdiction affirmatively granted to them through the U.S. Constitution and federal statutes

b. Two types by which Congress has granted authority via statutes i. Federal Question Jurisdiction

1. The case must be one that is “arising under” the U.S. Constitution and/or some federal law

ii. Diversity Jurisdiction 1. The opposing parties are from different states

c. What kinds of cases does Article III of the U.S. Constitution allow federal courts to hear? (The nine heads of jurisdiction)

i. All cases in Law and Equity arising under the Constitution, laws, and treaties of the United States

ii. All cases affecting ambassadors, other public ministers, and consuls

iii. All cases of admiralty and maritime jurisdiction iv. Controversies in which the United States is a party v. Controversies between two or more states

vi. Cases between a state and citizens of another state vii. Cases between citizens of different states

viii. Cases between citizens of the same State claiming lands under grants of different states

ix. Cases between a state, or the citizens thereof, and foreign states, citizens, or subjects


1. We mostly deal with (i) and (vii-ix) d. Jurisdictional statutes typically found in 28 U.S.C. §§1330-1369

i. § 1331 – Grant of jurisdiction for federal question ii. § 1332 – Grant of jurisdiction for diversity

iii. § 1367 – Grant of jurisdiction involving both federal question and diversity

VIII. Federal Question Jurisdiction a. What does it mean for a case to “arise under” federal law?

i. The “Well-Pleaded Complaint” Rule 1. The COMPLAINT must demonstrate that the case “arises

under” the Constitution or laws of the United States a. It is not enough if only the ANSWER to the

complaint states a defense that arises under the Constitution or laws of the United States

b. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserted that the defense is invalidated by some provision of the Constitution or US law

2. Louisville & Nashville Railroad Co. v. Mottley b. § 1331 Federal Question Jurisdiction

i. Gives district courts original jurisdiction over all civil actions arising under the laws, treaties, and Constitution of the United States

ii. Merrell Dow 1. A case only “arises under” federal law if federal law

supplies the cause of action a. It must provide the right b. It must provide the remedy

2. A case may “arise under” federal law where the vindication of the right of a state law “necessarily turns on a construction of federal law”

iii. Grable 1. There must be a “real and substantial dispute” over federal

law in order for federal question jurisdiction to apply a. Here, “substantial” means nonfrivolous b. There must be some indication that the suit is

allowable. Ask: i. What was the Congressional intent?

ii. Will allowing this sort of case shift too many cases into the federal system, or give too much power to the federal system?

IX. § 1332 Diversity Jurisdiction a. Two requirements

i. Parties must be of diverse citizenship ii. The amount in controversy must exceed $75,000

b. Complete Diversity Rule


i. If there are multiple parties, no plaintiff can be of the same citizenship as any defendant

ii. Constitution itself only requires minimal diversity, but § 1332 requires complete diversity

c. Determining Citizenship i. Sheehan v. Gustafson (Presence + Intent to Remain)

1. For diversity jurisdiction, the terms “domicile” and “citizenship” are synonymous

a. There is a two part test for domicile; both must occur simultaneously

i. The individual must be present in the purported state of domicile, AND

ii. The individual must have intent to remain there indefinitely

1. You are a citizen of the last place where both of these things were true

2. You can only be a citizen of ONE state at any given time

b. In Sheehan, the contacts in Minnesota were primarily business contacts, while the contacts in Nevada were primarily personal contacts, which showed an intent to remain

ii. Peterson v. Cooley - Corporations 1. A corporation is considered a citizen of any State by which:

a. It has been incorporated AND b. Of the State where it has its principal place of

business 2. Two tests to determine a corporation’s principal place of

business: a. “Nerve Center” test

i. Makes the “home office,” or place where the corporation’s officers direct, control, and coordinate activities, determinative

b. Place of Operations test i. Looks to the place where the bulk of

corporate activity takes place c. Supreme Court uses the “nerve center” test in

Peterson, but never really specifies which test should normally be applied

3. ASK TIDMARSH ABOUT THIS DURING REVIEW (Wal-Mart) – Can a corp. be a citizen of more than 1 state?

d. Amount in Controversy (Del Vecchio v. Conseco, Inc.) i. Multiple persons’ claims cannot be combined to reach the

minimum amount in controversy (i.e., you cannot add the claims of all plaintiffs together in order to reach more than $75,000)


1. Exception: A single plaintiff may aggregate multiple claims to make it add up to more than $75,000

2. In order for a complaint to get thrown out of court, there has to appear to a legal certainty that the plaintiff can’t get more than the alleged amount in controversy (e.g., suing for $75,000 for a hangnail)

X. Additional Notes a. Ways to stay in state court (if you’re a plaintiff)

i. Avoid § 1331 1. Do not have any federal questions in your complaint

ii. Avoid § 1332 1. Join a nondiverse defendant 2. Bring a claim for $75,000 or less

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