Civil Procedure Outline 1 1. Personal Jursidicition

Civil Procedure outline 1
1. Personal Jursidicition: Can any court in this state hear the case?
a. Due process
i. Pennoyer v.Neff-brightline rule
1. Not good law anymore-but it was important in establishing the
history of p jurisdiction. In P v. Neff, a previous holding involving
Neff was found invalid because Neff had no actual notice of the
proceeding.
2. P. v. Neff established some strange rules to be contractadicted by
later cases.
a. In personam jurisdiction: a case having to do with the actual
person- required actual notice delivered within the forum
state
b. in rem jurisdiction: a case about a person’s property- no
actual notice was needed because a person should know what
is up w/ his property
c. quasi in rem: one can attach the property of the person, and
hold a case against that person up to the amount of the seized
property. Constructive notice is okay because again one
should be aware of what is happening on his property.
ii. Minimum contacts (International Shoe and its progeny)
1. Miliken v. Meyer, which held that there was personal jurisdiction in
Wyoming if the defendant being served personally in Colorado was a
Wyoming resident. This case uses “fair play and susbtatial justice- as
well as notice that is reasonably calculated to give actual notice.
2. International Shoe: pivotal case regarding Modern analysis of PJ.
Permitting a state to have PJ over a corp. in personam under either
General or Specific Jurisdiction.
3. Shaffer v. Heitner- a Delaware Co. wants to sue its trustees quasi in
rem, in Delaware by attaching Delaware stock. No minimum
contacts plus it violated fair play and substantial justice.
a. Schaffer obviated in rem and quasi in rem.
b. Schaffer also ensured that the standards in Shoe applied to
individuals as well as corporations.
c. Schaffer also defined purposeful availment as “fair warning
that a particular activity may subject them to jurisdiction of a
foreign sovereign”
4. General Jurisdiction- in some cases the party will have such

substantial dealings with that state that even unrelated issues can
warrant personal jurisdiction.
a. Are contacts continuous and systematic?
i. In Shoe they were deemed continuous and systematic-
with only twelve salesmen who would rent space to
sell shoes b/c they did a significant amount of
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business there and it was for a long period of time- a

number of years.
ii. When “continuous corporate operation within a state
is thought so substantial and of such a nature as to
justify suit against it on causes of action arising from
dealings entirely distinct from those activities” may a
court assert general jurisdiction over a corporate
defendant (Shoe/Coastal)
iii. Coastal- remanded- not enough info to establish
whether or not there would be general jurisdiction.
Court mentions an “online store front” that would
subject the corp to general jurisdiction in many cases.
iv. More obvious is if the party is a citizen of that state.
1. Corporations have 2 citizenships
a. State of incorporation
b. State of principle place of business. 2
tests
i. Nerve test
ii. Muscle Test
2. People have one place of citizenship=Domicile
a. Domicile- is physical presence with
intent to stay.
iii. Coastal:
5. Purposeful availment?
a. McGee v. International Life Insurance Co. – Insurance
Company from Texas willingly sought a contract w/ a
California citizen – there was PJ in CA-high water mark
b. Hanson V. Denkla: Ms Donner established a trust in
Delaware when she was a PA citizen- then she moved to
Florida and died. The court found that there was NO
purposeful availment (voluntary relationship) on the part of
Delaware trust company thus no PJ in Florida.
c. World Wide Volkswagen: NY citizens on their way to
Arizona get into a car accident in Oklahoma. They try to sue
the distributor and the dealer – both isolated in the tri state
area. No PJ was found because the defendants made no
affirmitive effort to establish contacts with OK.
d.
e. Burger King: “The franchise grew directly out of a contract
which had substantial connection with that state.” Rudzewicz
“deliberately reached out beyond” to Florida. K bound him to
dealing in Florida for 20 years. It was also important in the
Burger King decision that R. was a sophisticated business
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man- and was not being taken advantage of by Big Bad

Burger King.
6. Sliding scale for internet business (Pavlovich)
a. If one clearly does business over the internet, personal
jurisdiction is proper.
1. LLBean “ targets its electronic advertising and
maintains a highly interactive website from
which very large numbers of California
consumers regularly make purchases and
interact with LL Bean. ““LL Bean has
deliberately and purposefully availed itself, on
a very large scale of the benefits of doing
business within the state.” “the commericial
activity must be of a substantial enough nature
that it approximates physical presence.”
2. A passive website that does little more than
make information available to those who are
interested in it is not grounds for the exercise
of personal jurisdiction.
a. Pavlovich: “ (his) website merely posts
information and has no interactive
features. There is no evidence in the
record suggesting that the site targeted
California. No evidence that any
California resident ever visited the
website much less download the
program.
ii. Purposefully placing itself within the stream of
commerce? (Asahi, Volkswagen)
7. Specific Jurisdiction:
a. Purposeful availment?
i. In WWVolkswagon- Brennan in a dissent says that
injecting ones self in the stream of commerce is
enough-and that it is foreseeable
ii. The majority thinks there needs to be something more.
b. Relatedness?
i. Was the cause of action related to the state?
iii. Fair play and substantial justice
1. WW Volkswagen gives a list of five things to consider
a. Burden on the defendant
b. State’s interest
c. Plaintiff’s interest in obtaining convenient and effective relief
d. The Interstate judicial system’s interest in obtaining the most
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efficient resolution of controversies- think about how if a

state asserts jurisdiction, it will help corporations operate
nationally.
e. The Shared interest of the several states in furthering
fundamental substantive social polices-Kulko case
2. Asahi: Even though the court found there were minimum contacts- “
considering that international context, the heavy burden on the alien
defendant, and the slight interests of the plaintiff and the forum State,
the exercise or personal jurisdiction by a California court over Asahi
in this instance would be unreasonable and unfair.” No PJ.
iv. Consent : one can consent to PJ in a foreign state and thus waive minimum
contacts/fair play requirements.
1. Carnival Cruise Lines: a couple from Washington bought tickets on
Florida Corporation Carnival Cruise Lines. The tickets provided that
all litigations would take place in a Florida court. The Mrs. Shute
was injured in Mexico and she wants to sue. The court found that
even though the contract was an adhesion contract and did not give
the Shutes a choice either than to refuse to buy the tickets. The clause
was enforceable and there was personal jurisdiction in Florida.
v. Notice:
1. Rule 4:
a. Form: The summons shall meet a specified form
b. Issuance: if the summons is in proper form the clerk shall
sign , seal and issue it to the plaintiff for service on the
defendant.
c. Service with complaint: a summons shall attach a copy of the
complaint
d. Waiver of service: Defendants are encouraged to waive
their rights to personal service. Plaintiff will send out a
waiver form and the
e. defendant has at least 30 days to respond to waiver if in
the united states
f. Defendant has at least 60 days if he is not in the US
g. If the defendant agrees to the waiver the defendant has 60
days after the request for waiver was sent to file his
answer
h. And 90 days if he is out of the country
i. If he doesnot agree to the waiver he has less time to file his
answer and he must pay for the costs of personal service.
j. Infants, Incomptant Persons and the United States an not
waive their right to personal service.
k. Individuals in the US, or Foreign countries (except the
groups above) or Corporatations can and even have a
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duty to waive their rights to personal service.

l. For individuals in foreign countries- one must look to the
“hague Convention” for the rules of service within those
countries.
m. Time limit for service – after the complaint is filed the
defendant must be served within 120 days. If the
defendant is not served within that time the claim will be
dismissed without prejudice.
n. If the plaintiff has a good reason for not serving the
defendant in that time the judge may offer an extension.
2. Mullane v. Central Hanover Bank & Trust Co.
a. In Mullane there were many defendants, some known and
many unknow. Regarding the known defendants the court
said that it was fine to mail them their summons- it was the
most efficient way that was “reasonably calculated to give
notice” the trust company had mailed communications before
so it was reasonable to expect communication of that sort– for
the other unknown defendants notice by publication was the
most reasonable thing to do.
b. “ An elementary and fundamental requirement of due process
in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections. The notice
must be of such nature as reasonably to convey the required
information, and it must afford a reasonable time for those
interested to make their appearance. But if with due regard
for the practicalities and peculiarities of the case these
conditions are reasonably met , the constitutional
requirements are satisfied.”
b. Long Arm Statutes:
i. Long Arm Statutes can take up to the constitutional maximum. Some states
restrict their personal jurisdiction capacity by having a limiting Long Arm
Statute- which can limit its docket.
ii. Gibbons v. Brown:
1. Parties were driving together in Canada and got into an accident.
Originally Gibbons sued Mr. Brown in Florida. Then Mrs. Brown
tried to sue Ms. Gibbons in Florida.
2. However there was no personal jurisdiction in Florida because the
Long Arm Statute requires contacts that would warrant “general
jurisdiction”
3. “a current defendant’s prior decision to bring a suit in Florida should
not act indefinitely as a sword of Damocles hanging perilously over
the head of that defendant if she later challenges jurisdiction in a
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separate suit.”
4. Generally a court will apply the long arm statute of the state that we
are in.
c. Venue:
i. 1391
1. a diversity suit may be brought only in
a. a district where any defendant resides, if all defendants reside
in the same state
b. a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action situated
c. OR if the other two can not be met: a judicial district in which
any defendant is subject to personal jurisdiction at the time
the action is commenced.
2. A federal question may be brought
a. In a district where any defendant resides, if all defendants
reside in the same state
b. a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action situated
c. a judicial district in which any defendant may be found , if
there is no district in which the action may otherwise be
brought.
3. A defendant that is a corporation shall be deemed to reside in any
judicial district in which it is subject to personal jurisdiction at the
time the action is commenced. In a state w/ more than one district.
4. An Alien may be sued in any district
ii. Dee-K Enterprises
1. Dee-K involves an international defendant. So we look partially to
the Clayton Act which provides for international service. According
to Section 12 of the Clayton Act, venue is in any district where the
defendant is “found” or where it “transacts business” – this may
seem like an insurmountable obstacle but 1391 section d provides
that aliens can be sued in any district.
d. Declining Jurisdiction
i. 28 U.S.C.1404
1. (a) provides For the convience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any
other district or division where it might have been brought.
2. 1406
3. 1631
ii. Transfer-move from federal court to federal court
1. one does not need to dismiss and refile because technically one is in
the same system
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iii. Forum Non Conveniens

1. Forum non-conveniens does require one to refile and dismiss the case
and refile it somewhere else that would be more convenient.
2. state to another state or federal to another country.
3. Piper Aircraft: In Piper Aircraft a Scottish plane was flying over
Scotland and crashed killing Scottish passengers whose families were
all Scottish. The aircraft was manufactured by American companies.
While personal jurisdiction and venue were all met it just did not
make sense to try the case in California.
4. The court of appeals ruled that the plaintiffs may defeat a ground to
dismiss on the grounds of forum non Conveniens simply by showing
that the substantive law applied would be more favorable to them.
THIS DOES NOT WORK! Then people would never get to dismiss
based on forum non Conveniens.
5. Presents a balancing test:
a. Which weighs a list of the private interest factors with public
interest factors.
b. Private interests include: relative ease of the access to sources
of proof, availability of compulsory process for attendance of
the unwilling, and the cost of obtaining attendance of willing,
witnesses;
c. The public factors include administrative difficulties, “local
interest in having localized controversies decided at home”
6. The forum non Conveniens determination is committed to the sound
discretion of the trial court. It may only be reversed where there has
been a clear abuse of discretion
2. Subject Matter Jurisdiction:

a. Federal Question
i. Arising Under-1331
1. Well pleaded Complaint Rule
a. Rule 8a – “the complaint must include a short and plain
statement of the grounds upon which the court’s jurisdiction
depends.”
2. Mottley- the Mottleys sued in federal court- they got all the way to
the Supreme Court and the Supreme Court dismissed for no subject
matter jurisdiction. The complaint has to state a federal question- not
proposed defenses.
3. The constitutional meaning of “Arising Under in Article 3 is broader
than the meaning of arising under in 1331”
4. Rule 12(b)6 – failure to state a claim upon which relief
b. Diversity
i. If there is no diversity jurisidcition one can dismiss under rule 12(b) (1)
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ii. 1332
1. The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value or value of
$ 75,000, exclusive of interests and costs is between
a. Citizens of different States
b. Citizens of a State and citizens or subjects of a foreign state
c. Citizens of different States and in which citizens or subjects
of a foreign state are additional parties
d. A foreign state defined in section 1603 (a) of this title as
plaintiff and citizens of a State or of different States. For the
purposes of this section, section 1335, and section 1441, an
alien admitted to the United States for permanent residence
shall be deemed a citizen of the State in which such an alien
is domiciled.
iii. Amount in controversy-must be over 75,000
1. It is hard to eliminate cases on this because you don’t know the
amount in controversy until after the proceedings are over.
2. Most of the time we will just take the plaintiff’s word for it but if the
claim is 17 times higher than what anyone has ever recovered- we
won’t allow it.
3. For an injunction
a. We look at what the injunction is worth to the plaintiff- ( the
majority of courts do this)
b. Cost of compliance for the defendant
c. If either is above 75,000 that’s ok.
iv. Aggregation
a. A single plaintiff may make as many claims as he wants
against a single defendant-the claims may be totally unrelated
b. Two plaintiffs against one defendant can not aggregate claims
against one defendant if the claims are unrelated. They can
only do so if they are essentially acting as one unit.
2. Permissive and Compulsory Counter Claim
a. Permissive the defendant can choose whether or not he wants
to bring it now- so it needs to meet the standards
independently.
b. Compulsory the defendant MUST bring it now or it will
never be heard because of issue and claim preclusion-so it
doesn’t need to meet the same standards.
v. Redner v. Sanders
1. Redner moved to France and is not an actual citizen but is trying to
invoke diversity jurisdiction. Because he is not a “citizen of France”
in the legal sense- unlike in the stat sense where all we look for is
“domicile- no jurisdiction. Then he tried to claim that he was a
citizen of California- no luck- he was too much a resident of france
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to be considered a “citizen” of California.

vi. Saadeh v. Farouki
a. At the time the complaint was filed, Farouki was a permant
resident of Maryland. Saadeh was a Greek citizen trying to
invoke diversity under 1332 (a) 4- an alien admitted to the
United States for permanent residence shall be deemed a
citizen of the State in which such an alien is domiciled.
b. However because the intent in adding this amendment was to
limit diversity jurisdiction from people who lived in the same
state- expanding it to include lawsuits in which neither party
is a citizen does not make sense.
vii. Rule 14
1. (a) When defendant may bring in a third party: At any time after
commencement of the action a defendant may bring in a party who
might be liable against the defendant ( third party plaintiff)
viii. Rule 18- Joinder of claims and remedies
a. A party asserting a claim to relief as an original claim,
counter claim , cross claim , or third party claim, may join as
many claims as he has against the other party ( a single
plaintiff can bring as many claims as he wants to against a
single defendant)
ix. Rule 20- People can join together as plaintiffs if each of the claims arise out
of the exactly same issue.
x. Jin v. Ministry of State Security
1. Jin wanted to bring a defamation action to federal court. Defamation
is usually a state tort claim- but the court found that it did arise from
the common nucleus of fact and was applied to be joined despite
Defendants claims that it was
a. Inconvenient because may of the plaintiffs live in different
states
b. Too complex ( 1367© 1)
2. The court found that the claims were related because “they would
ordinarily be expected to try them all in one judicial proceeding” Is
this circular? Why do people expect to try them all in one
proceeding?
3. However Jin lost because although the claim met the requirements
for supplemental jurisdiction under 1367 (a) which satisfied 12 b1
subject matter jurisdiction – the statute of limitations on the state
claim had already run out. 12 b 6.
xi. Owens
1. Wrongful death (tort) suit btw Kroger and OPPD based on diversity.
OPPD joins Owens, Kroger joins Owens as a defendant and OPPD
drops out. At first the courts thought that there was diversity but then
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clarification of state boundries revealed that Owens was from Iowa

just like Kroger . NO more diversity. Can’t be hald in federal court.
a. You can ALWAYS bring up lack of subject matter
jurisdiction- either federal question or diversity.
b. Quoted Gibbs because the constitution used the word “case”
rather than claims the court has the constitutional power to
hear other claims that have a common nucleus of fact even if
they do not have statutory authority.
c. Contrast the Gibbs federal question with the diversity claim
in Owens.
c. Removal – A defendant can move for Removal from state court to federal court if
the original claim could be heard under the federal courts or if no defendant is a
citizen of the forum state and other factors of diversity are met.
i. 1441 (for more look at problems one and 2 on pages 212 and 213.) Actions
removable generally
a. Any civil action brought in a state court of which the federal
court has original jurisdiction may be removed by the
defendant to the district court in the same district as the state
court.
b. It is okay to remove federal question, diversity is only okay if
none of the defendants resides in that state. Diversity exists
because the plaintiffs might have the home stae advantage but
if a defendant is from the forum state then there is no issue.
c. Whenever a separate and independent claim or cause of
action within the jurisdiction conferred by section 1331 of
this title is joined with one or more otherwise non-removable
claims or causes of action the entire case may be removed
and the district court may determine all issues therein , or at
its descresion remand to state court.
i. Problem: is this unconstitutional because it could
permit cases to get into federal courts that could not
get there on diversity, supplemental, or fed question?
Article III states: The judicial Power shall extend to
all Cases, in Law and Equity arising under this
Constitution. Because it uses the word “CASES”
rather than claims or questions 1441 subsection c
should be allowed.
ii. 1446- Procedure for Removal
a. Defendant desiring removal shall file in the district court, a
notice of removal following Rule 11 and containing a short
and plain statement of the grounds for removal, with a copy
of all process, pleadings and orders served upon such
defendant or defendants in such action.
b. The defendant needs to file for removal within thirty days of
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receiving the initial pleading – if at the time of the initial

pleading the case is not removable the defendant may file
within 30 after the case becomes removable up to year.
iii. 1447- if at anytime before the final judgment it appears that the case lacks
subject matter jurisdiction the case shall be remanded.
iv. Caterpillar Inc. v Lewis
1. Lewis from Kentucky filed this lawsuit in a Kentucky State court
2. He named two parties as defendants, Whayne (KY) and
Caterpillar( DL or IL)
3. The Liberty (MA) joined as a plaintiff.
4. Whayne and Lewis settled but not Liberty and Whayne.
5. Caterpillar filed for removal with a short and plain statement, signed
pursuant to Rule 11 with a copy of all of the prior pleadins,
processes, etc.
6. Caterpillar was WRONGLY granted removal b/c there WAS NO
diversity.
7. After the case was decided Lewis appealed- the Supreme court said it
was in everybody’s best interest to just accept the verdict, rather than
retr the whole case.
3. Erie
a. Rules of Decision Act
i. The laws of several states except where the Constitution or Acts of Congress
otherwise require or provide, shall be regarded as rules of decisions in civil
actions in the courts of the United States, in cases where they apply.
b. Swift v. Tyson
i. Swiftt v. Tyson was an 1841 contracts case in federal court on diversity. The
Supreme Court holding in that case was that the “state laws” in the Rules of
Decisions Act did NOT include state case law. Rather, the federal courts
were given an immense amount of power because it was believed at the time
that there was a true law- floating around and it was for the federal courts to
divine what this true law actually was and then the state courts would follow
suit and adopt this supreme law. A consistant federal law would promote
commerce in a blossoming country.
1. The holding in Swift did not have the beneficial influence that was
hoped for. It did favor commerce but perhaps too much, to the point
that many civilians couldn’t afford to be heard.
2. At this time, the rate at which individuals interacted with commerce
and industry was growing exponentially- thus there were many cases
to be brought, unforntunatly many of them could not be heard.
3. Lawyers aren’t as likely to know Federal procedure or federal law so
individuals have to hire a multitude of lawyers where as big business
has them at their disposal.
4. Forum shopping emerged- there was one gross example in the brown
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and yellow taxi cab co. In which Brown wanted exclusive rights
outside the Kentucky train station and K law would never have it- so
they re incorporated in Tennesse- sued in federal court on diversity
and won.
c. Erie v. Tompkins
i. Tompkins, poor guy, hit hard by the depression was walking home from
visiting his sick mother in law by way of a well traveled path near the Erie
Railroad. A Train approached, with an pen door- that knocked Tompkins to
the floor and dragged him under the train- he lost an arm.
ii. He hired some young lawyers going through some hard times- the lawyers
were crafty and looked to try the case ina NY federal court on diversity b/c
the New York courts were the most likely to apply Swift in which federal
law would rule.
iii. Federal law was preferable to State law because Penn state law required
gross negligence- general law required only ordinary negligence.
iv. The Supreme court had wanted to overrule Swift forr a long time so they
jumped at the chance- ironically over ruling it when it would have benefited
the individual rather than the corp. for once.
v. Erie is widely thought of as a constitutional decision though it isn’t really
clear why.
vi. Klaxon holds that “ State conflict” of laws issues are applied when
moving from state to state (horizontal) or state to fed( vertical) so in Erie
even though they were in NY fed court they had to use Penn state law
because NY state law defers to the state law where the conflict happened.
d. Guaranty Trust v. York
i. Case regarding the statute of limitations. If they applied state law the case
would be barred- if they applied the foggy “general law” there would be no
set statute of limitations. Justice Frankfurter was very concerened about
“forum shopping” and decided to prevent that – one needed to look at
whether an issue was “ outcome determinatative” if it was- then state law
should apply. If not, if it was “ merely the manner and the means” federal
law could apply.
ii. This produced a srig of cases in which rules that seemed very procedural
were handed over to State Courts.
e. Byrd v. Blue Ridge Rural Electric Cooperative
i. 1. Is this bound up in the rights and obligations created by state law? If yes
apply state law- if not go to
ii. Is it outcome determinative? If yes- maybe apply state law- if no think about
q. 3
1. Byrd acknowledges the “outcome determinative “ test but also
provides some other factors weighing in favor of federal law. Byrd
asks if the issue is outcome determinative in the same way that it was
in York- in Byrd the issue wasn’t clearly outcome determinative.
iii. the integrity of the federal rule?
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f. Hanna v. Plumer
i. Hanna became even more extreme in favor of federal law, especially Federal
Rules.
ii. Hanna asks a few questions
1. first whether a Federal Rule and a state law are in direct conflict
2. If yes : Is this within the Rules Enabling Act-did the federal rule stay
within it’s power? (is it procedural)
a. The Supreme Court shall have the power to prescribe, by
general rules, the forms of process, writs, pleadings and
motions, and the practice and procedure of the District courts
of the United States in Civil Actions.
3. If yes is it Constitutional
a. No federal rule has ever been found to be outside the
bounderies of the Rules Enabling Act or outside the
Constitution.
g. Tests
i. Conflict between State Substantive Law v. Federal Substantive “common
law”
1. This is Erie- it is unconstitutional to apply federal substantive law in
diversity.
2. State law applies
3. If there is a federal statute on point then we are NOT in f court on
diversity- that is only for Federal Question.
ii. Conflict between state law and Federal procedural statute
1. Two questions
a. Does federal statute apply ( like 1404)
b. If yes is it constitutional ?
2. If yes to both apply federal statute
3. This is the Stewart situation.
iii. Conflict between State law and FRCP
1. Three questions
a. Does federal RULE apply ( like Rule 8)?
b. Does it fall with in the rules enabling act? Meaning is it
“practice and procedure”- is its function to assist the process
of enforcing rights and duties recognized by substantive law.
c. Is it constitutional?
2. Must answer yes to all three questions.
3. b and c have always been answered in the affirmative.
iv. Conflict between state law and federal practice (common law)
1. This is the hardest category
2. Cases:
a. Gauranty Trust ( state statute of limitations vs. federal
common law statute of limitations)
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b. Byrd v. Blueridge state practice of sending the decision to the

judge v. federal practice of letting the jury decide.
3. Three tests
a. Gauranty Trust- outcome determinative
i. Tricky because anything could be “ out come
determinative.
ii. Left a possible exception with procedure that “
concerns merely the manner and the means by which
a right to recover is enforced.”
iii. Subsequent cases took this interpretationto the
extreme
b. Byrd
i. Is state practice “bound up with the rights and
obligations of the parties?”
1. if yes state law prevails
ii. if no- then balancing between
1. outcome determinative
2. are there “ affirmative countervailing”
considerations of federal judicial
administration present?
c. MAIN TEST- HANNA,most recent
i. Two questions
1. Would applying federal practice encourage
forum shopping? ( consider circumstances
that, before the law suit begins, seem like they
might be significant enough to cause forum
shopping)
2. Result in “inequitable administration of laws?”
(is there a consistant discrepancy between the
application of federal and state court’s
substantice laws?)
ii. If no to both apply Federal Law.
4. Show me the money

a. Litigation explosion-
i. Is there one? We arepretty close to Canada, Australia and Britain but further
away frommeditarian countries-
ii. Relationship between procedure and case load
iii. If we adopt more rigourous procedure it will be harder to litigate.
1. example would changing rule 54 (d) 1 to include attornies fees as
costs create more or less litigation?
2. “ costs other than attornies fees shall be allowed as of course to the
prevailing partyunless the court otherwise directs; but costs against
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the United States, its officers,and agencies shall be imposed onlyto

the extent permited by law.
b. Incentives to litigate
i. Substitutionary Remedies-Compensatory and Punitive Damages- the goal of
substitutionary remedies is to provide the plaintiff with a reasonable
substitute for the damages he suffered
1. purpose of compensatory damages
i. to restore the injured party as nearly as possible to the
position he would have been in had it not been for the
wrong of the other party.
ii. We are thinking of the value to the average person.
Sentimental value is probably not going to be
compensated.
iii. Duties
1. duty to mitigate
2. duty to record keep-especially with non-
economic damages.
iv. Lost time
1. even if you win trials take a long time- and
you can not get that back.
ii. punitive damages
1. the purpose is to punish a party for bad behavior- no punitive
damages in contracts but in torts like fraud.
2. State Farm v. Campbell- State Farm encouraged Cambpell to litigate
saying that it would finance the losss- Campbell lost and State Farm
said “ you are going to have to sell your house”
3. Gore Standards ( Substantive Rule)
a. The degree of reprehensitbility for the conduct-
i. The behavior towards Campbell was just not that bad.
ii. Nationwide what State Farm was doing was very very
bad but the court tells us that we can not consider this.
1. The court draws a lie regarding what they did
in the state.
b. The disparity between the actual harm or potential harm
suffered by the plaintiff and the amount of damages
i. The court recommends a single digit
ii. You can consider wealth but it cannot be the only
factor that pushes the ratio higher than the single digit
standard
c. Look at what other relevant cases in the same jurisdiction
have done.
4. Procedrual Rule: The appellate court must review punitive
damages de novo – they show no defference to what the trial court
decided.
15
a. What does State Farm mean? If compensatory damages are

very low but the act is soooo egregious punitive damages
might be higher.
b. The 1-9 recommendation may actually encourage juries to
give higher awards than they were before.
c. Specific Relief, Declaratory relief
i. Remedial Hierarchy
1. when courts of law and equity merged, one had to subordinate.
Equity did this so that courts would not come out with conflicting
remedies.
2. As such, traditionally litigants needed to prove that legal damages
were inadequate before the court would consider equitable remedies
such as an injunction.
ii. Financing Litigation
1. Hourly v. Contingent fee
a. Hourly rate- preferable for a defendant
b. Contingent fee- only get paid if you win the case but you take
more than you ordinarially would to cover the cost of the
cases that you lose.
2. American Rule v. English Rule
a. American Rule- each party pays its own way
b. English Rule: the losing party pays for the other side’s cost’s
including attorney’s fees.
3. Moving away from a pure American Rule
a. Rule 54:
i. sub Section (d) 1 Costs other than attorney’s fees
Costs other than attorney’s fees shall be allowed as of
course to the prevailing party, unless the court
otherwise directs; but costs against the United States,
its officers, and agencies shall be imposed only to the
extent permitted by law.
ii. sub Section (d) 2 Attorney’s fees shall be made by
motion
b. Rule 68:
i. any time before ten days before the trial, the defendant
can make a formal offer.
ii. If the offer is accepted with in ten days after the
service of the offer- the clerk shall enter judgment.
iii. An offer not accepted will be deemed withdrawn. If
the judgment finally obtained by the offeree is not
more favorable than the offer, the offeree must pay the
costs (usually does NOT include attorney’s fees) it
would have been entitled to because of rule 54
AFTER making the offer.
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c. Through Contract
i. Parties can provide costs including attorney’s fees by
contracting around them.
d. Common Law
i. Most courts view it within their power to award
attorneys fees if the litigation is frivolous
e. Statute
i. Some statutes ( most notably civil rights statutes) say
that a losing defendant has to pay a winning plaintiff.
5. Evans-conditioning settlement on waiver of attorney’s fees.
a. Legal aid- a blend of public and private money
i. Funding for legal aid was severally cut and really restricts what people can
do. Can’t bring class actions
b. the state probably offered this deal knowing that Johnson was bound to accept the
best offer for his clients- and this would also hurt legal aid.
c. P says that allowing him to negotiate his attorneys fees is damaging because now
attorneys will be less likely to take the case. the court says that attorneys fees are a
powerful bargaining chip that can help the plaintiffs.
6. Buckhannon overruled “catalyst theory” no attorneys fees if D changes the rules and moots
the case.
a. Catalyst theory- if the legal action precipitates the result they wanted- that should
count as a judgment- which would entitle them to their attorney’s fees.
b. Now the only way to get attorneys fees is to be the prevailing party- you have to win
at trial or get a court order.
c. Settlement –equals a prevailing party
i. Provisional Remedies
1. Preliminary injunction-relief pending final adjudication of dispute.
( Birmingham- barred from challenging the propriety of the
prelimnary injunction)
a. We want to move fast- but we also want to make sure we
honor the other party’s rights.
b. Ingliss Bread case.
2. TWO TESTS Standards: (should give deference to trial court)
a. Four prong test – Inglis Trial court used this test.
i. P will suffer irreparable injury;
ii. P will probably prevail on the merits;
iii. in balancing equities, D not harmed more than P
helped;
iv. granting injunction in public interest.
b. Other alternative suggested by the Appellate Court
i. Combination of probable success and possibility of
irreparable injury OR
ii. Serious questions raised and balance of hardships.
17
1. what is meant by serious questions? not a

frivolous case
3. Fuentes- Due process limitations
a. State statutes authorizing seizure of a person’s goods without
notice, violates due process.
b. There must be some kind of hearing or notice.
c. The length of deprivation might make it more or less fair
depending on other circumstances.
d. An individual should be given an opportunity for a hearing
before he is deprived of any significant property interest,
except for extraordinary situations where some valid
governmental interest is at stake that justifies postponing the
hearing until after the event.
4. Matthews v. Elderidge – BALANCE -three factors that normally
determine whether an individual has received “due process”
a. The private interest that will be affected by the official
action;
b. Second, the risk of an erroneous deprivation of such
interest through the procedures used
c. The Government’s interest, including the function
involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement
would entail.
5. TRO- goes faster and is less permanent than a restraining order- 65 b.
Storm the courthouse. 325
a. A temporary restraining order may be granted without written
or oral notice to the adverse party only if
i. It clearly appears from specific facts shown by
affidavit or by the verified complaint that intermediate
and irreparable injury loss or damage will result to the
applicant before the adverse party can be heard in
opposition AND
ii. The applicant’s attorney certifies to the court in
writing, the efforts which have been made to give
notice ( if any) and why notice should not be required.
iii. If granted, issued right away and doesn’t last longer
than ten days.
6. Collateral bar rule for contempt
a. You cannot challenge propriety of injunction at contempt of
court of hearing for violating the injunction.
7. Pleading:
a. Complaint:
i. Rule 8a says a complaint needs:
1. short and plain statement of jurisdictional grounds
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a. if in federal court- paragraph one should be “Why are

you in Federal Court?”
i. Federal question OR
ii. Diversity
2. Short and plain statement of claim
a. What is a legal claim?
i. Body of substantive law- some recognized legal
theory
ii. Allege a set of facts that falls within that legal
claim
iii. (this is what you hope to prove- not what you can
actually prove this early on)
3. Demand for judgment of relief the pleader seeks
ii. Some states have form pleading like CA
iii. Haddle v, Garrison ????
1. Haddle was fired from his job ( at will employment ) because he

coorperated with federal agents in prosecuting his criminal
employers.
2. His employers tried to dismiss the case for failure to state a claim
because the statute he was alleging a wrong under required some loss
of property- the district and appellate courts held that the termination
of an at will employee does not deprive him of property.
3. Supreme Court reversed- saying that what really matters under this
statute is the intimidating-retaliating acts of the employer.
Interference with his employment is enough.
b. Rule 11 (Ethical Obligations)
i. Rule 11
1. 11 (a) Requires lawyer’s signature on pleading
2. 11 (b) And representations to the court
a. not presented for improper purpose
b. legal contentions are warranted by existing law OR non-
frivolous argument for extension of the law. ( the party may
not be sanctioned monitarialy- only the lawyer)
c. Allegations and other factual contentions have evidentiary
support or are likely to have evidentiary support.
d. Denials of factual contentions are warranted on evidence or
reasonably based on information/belief.
3. 11© Sanctions
a. safe harbor
i. 21 days for the offending party o fix what it is doing.
b. After notice and an opportunity to respond (safe harbor) The
court MAY sanction but it does not have to. The court can
19
give the money to the opposing party or it can keep it. Rule
11 is not a windfall for the party that makes the motion.
c. Also because you need to give 21 days safe harbor- if you
look at the complaint and see that it is a violation of rule 11-
waive service of process so that you have 60 days instead of
twenty days to file your answer.
ii. The main ways someone can violate rule 11 are
1. Frivolous legal arguments
2. inadequate facts
iii. Walker v. NorWest Corp
1. lawyer brought the case on diversity but failed to plead complete
diversity of citizenship. The plaintiff’s lawyer argues that finding out
citizenship is more trouble than he should be expected to take.
2. He also tried to continue pleading the merits of his case at the rule 11
hearing-which you are NOT supposed to do.
3. The court hints that maybe if the lawyer showed evidence that
evidenced financial hardship he would not have to pay monetary
sanctions.
iv. Christian v. Mattell (Barbie)- you need a reasonable factual basis for your
claim, unlike Christian
1. Christian sued Mattell for copywright infringement of her doll but
the Barbies she claimed were a replicants of her doll were made
years earlier.
2. Hicks- christian’s lawyer had a lot of bad behavior and was
sanctioned for all ofit. On appeal the court said that the sanctions
must be limited to rule 11 violations wwhich are LIMITED TO
SIGNED PAPERS.
v. Rule 11 does not apply to discovery rules.
vi. Conversation with Client about Rule 11
1. Rule 11 motion wwon’t be heard until after the event violating Rule
11
2. May or may not get sanctions and or attorney’s fees.
3. The seriousness of accussing another lawyer of violating Rule 11.
c. Special Pleading Rules:
i. It is okay for the drafters of the rules to make special pleading rules but it is
not okay for judges to do so.
ii. Rule 9 (b) Fraud- “circumstances constituting fraud or mistake must be
alleged with particularity. Malice, intent, knowledge, and other condition of
mind may be avered generally”
1. Stradford v. Zurich Insurance Co.- dentist insurance fraud case.
2. Insurance initially counterclaimed wwith “ Dr. Stradford knowingly
and willfully devised a scheme and artifice to defraud defendants
and obtain money by false pretenses and representations.”
a. The court said that this was not good enough to satisfy the
20
first sentence of rule 9b.

b. 9b requires the
i. time
ii. place and
iii. nature of the alleged misrepresentations.
c. The primary purpose of Rule 9b is to provide fair notice of
the claim and the factual ground upon which it is based.
d. Leave to amend shall be freely given ( pursuant to rule 15) so
defendants amended their counter claim
e. The amended counterclaim made it clear that Dr. Stradford’s
office was flooded at a time when he permitted the Policy to
lapse and that Dr.Stradford “misrepresented the date of the
loss in an effort to bring the date of loss within the coverage
period.”
f. This amended claim satisfied 9b in the court’s opinion.
g. Wwhy are wwe harder on the party alleging fraud? It is
serious and the defendant needs to be able to defend himself
adequately.
iii. Civil Rights – D has burden to plead and prove qualified immunity.
1. Gomez-civil rights statute
a. Gomez was not required to prove the bad faith of the
defendant- who would be immune ( because he is a
government official- unless he could prove he acted in good
faith)
d. Pre Answer Motion (Rule 12)
i. Wwhy file?
1. the case could end right there
ii. Wwhen?
1. Rule 12 (a)
a. Normally 20 days to respond
b. But if the personal service of summons has been wwaived
(Rule 4) 60 days (after request for wwaiver was sent)
iii. What motions?
1. 12(b)(1) No subject matter jurisdiction
2. 12(b)(2) No personal jurisdiction over the defendant
3. 12(b)(3) Improper venue
4. 12(b)(4) Insufficiency of process
5. 12(b)(5) Insufficiency of service of process
6. 12(b)(6) Failure to state a claim for which relief can be granted
a. important to remember: EVERYTHING plaintiff says is
taken as TRUE.
7. 12(b)(7) failure to join a party under rule 19
8. 12© Motion for Judgment on the Pleadings?
a. After pleadings have ended- if you still want to bring a 12 b 6
21
motion it is called a judgment on the pleadings

9. 12(e) Motion for a more definite statement
iv. When do you have to raise them?

1. 12 (g) Consolidation of Defenses in Motion.
a. If a party makes a motion under this rule but omits any
defense or objection then available to the party which this
rule permits to be raised by motion, the party waives that
defense.
2. 12(h) Waiver or Preservation of Certain defenses
a. A defense of lack or jurisdiction over the person, improper
venue, insufficiency of process, or insufficiency of service of
process is waived
i. if there was already a motion and failed to join, OR
ii. If it is neither made by motion nor included in a
responsive pleading or an amendment
b. A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join an indispensable party
under rule 19, may be made in any pleading.
c. Subject matter jurisdiction can be raised at anytime.
v. I f a motion is denied you have 10 days plus whatever is left on your answer
to file your answer.
iv. Rule 12 problems: A – A sues B. Before answer, B moves to dismiss on 12(b)(6). Motion denied.
1 – Can B move to dismiss on improper venue? No – only 1 preanswer motion is

permitted. Rule 12(g). Defense is waived by having been omitted from that motion.
Rule 12(h)(1).
2 – Can B move to dismiss for failure to join indispensable party? Rule 12(g) requires
consolidation of preanswer motions, but has (h)(2) exception, which includes failure to
join an party indispensable under Rule 19. So cannot make pre-answer motion, but can
raise as part of answer or make subject of postanswer judgment on the pleadings.
 3 – Can B now move, under Rule 12(e), for a more definite statement? No. Rule
12(g) provides that “any defense or objection then available to him which this rule
permits to be raised by motion,” may not be the subject of later motion. 12(e)
motion fits that bill; i.e., Rule 12(g) applies not just to 12(b), but to 12(e) and (f)
motions.
 4 - Can B include a defense of insufficiency of service of process in his answer?
No. Rule 12(h)(1) says that this defense is waived if omitted from motion.
 5 – Can B include the defense of failure to join an indispensable party in his
answer? Yes – see 2. Rule 12(h)(2).
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 6 – Can B now move to dismiss for lack of subject matter jurisdiction? Yes –Rule
12(h)(3). Although technically, would have to be “suggestion” of party.
o B – C sues D. W/out making pre-answer motion, D answers. The answer consists solely of
denials of material elements in complaint.
 1 – Can D move to dismiss for improper venue? No – D omitted the defense from
the answer, and Rule 12(h)(1) states that, having been raised neither by preanswer
motion or answer, it is waived.
 2 – D wants to have complaint dismissed for failure to state a claim. But he didn’t
do it in pre-answer motion. How can he accomplish same thing? Rule 12(h)(2)
provides that D can do the same thing by moving for judgment on pleadings. This
is motion Gomez D should have made; instead moved to dismiss for failure to state
a claim; judge let it pass. Rule 12© bolsters this.
 3 – Can D move three months later to amend answer to include the defense of
improper service of process? Probably not (exercise in statutory interpretation).
Rule 12(h)(1) says waived if not included in a responsive pleading or “an
amendment permitted by Rule 15(a) to be made as a matter of course.” Look to first
sentence of 15(a) – deals w/ “matter of course” amendments – i.e., those that do not
require court’s permission. Only w/in 20 days; now, would need court permission,
so not matter of course.
e. Answer ( Rule 8)
i. Timing- Rule 12 a- 20 days (normal) or 60 days(waived)or 20 days after
preanswer motion is set forth.
ii. Substance-Rule 8
1. Admit-if you know it is true
2. Deny –if you do not respond at all some may consider that an
admittance.
a. Limited general denial- “ I deny everything except for what I
admit”
b. The best thing to do is go paragraph by paragraph and deny
each element.
3. deny based on lack of knowledge/information
4. Affirmative defenses
a. The general rule is that you have to put your affirmative
defense in the answer or it is waived.
b. Layman v. Southwestern Bell Telephone Co.
i. The defendant just pleaded general denial and not the
affirmative defense of an easement.
ii. To determine an affirmative defense: Whether the
defendant intends to rest his defense upon some fact
not included in the allegations necessary to support
the plaintiff’s case. If it avers ADDITIONAL FACTS
23
which place the defendant in a position to avoid any

legal responsibility for its action, then such a defense
must be set forth in his answer.
c. Rule 8 defines an affirmative defense as “all matters which if
not pleaded would be likely to take the adverse party by
SURPRISE or would raise issues of fact not appearing on the
face of a prior pleading”
d. Problems 391
e. The tricky part about affirmative defenses is tht if someone
raises something as an affirmative defense that party then
might bear the burden of proof.
5. Counterclaim Rule 13
a. 13 (a) Compulsory Counter Claims: any claim that arises out
of the same transaction or occurrence ( use it or lose it)
i. doesn’t apply unless there has been some type of
pleading – Martino
b. 13 (b) Permissive counter claims: any pleading that is not
arising out of the same transaction or occurrence that is the
subject matter of the opposing party’s claims.
6. And Reply rule 7
iii. Importance of Specific denial
1. Zielinski v. Philadelpia Piers.
a. Zielinski sued PP for a tort action and PP was actually not the
party that was responsible They knew that the company had
transferred to another company – sent them a copy of the
complaint- but they just responded with a general denial. The
general denial made it look as though they denied that they
were negligent- not that they even owned the equipment in
question.
b. Eventually the parties realized that PP was the wrong party
but the court made PP PRETEND that it was the right party
because, it was it’s mistake, the plaintiff really had no way of
knowing from the answer, or anything else- AND probably
most importantly- PP had the same insurance company as the
rightful party so the same party was going to be charged
anyway.
iv. Amendments: During the Pleading Stage:
1. We want there to be a liberal amendment policy, people make
mistakes, not everything is knowable right away but at some point
we just have to say- get on with it!
2. RULE 15 A :
a. The party may so amend it at anytime within 20 days after it
is served.
b. (a) Otherwise a party may amend the party pleading only by
24
leave of court or by written consent of the adverse party and

leave shall be freely given when justice so requires.
3. Beeck v. Aquaslide
a. Says that this means balancing the bad faith of the defendant
v. hardship on the plaintiff.
b. Here the waterslide co. did not know that it didn’t make the
slides, three insurance companies supported that descision-
the court seems to think that the plaintiff will not be
precluded by statute of limitations- it allows the amendment.
v. Relation Back : what if trial has already started?
1. RULE 15 c- Relation back- if it arises out of the same conduct,
transaction, or occurance as originally pleaded.
2. Moore v. Baker
a. Moore’s initial complaint against Dr. Baker was that he failed
to advise her of an alternative surgery. After Dr. B filed a
motion for summary judgment –Moore moved to amend her
complaint to assert allegations ofnegligence by Dr. Baker in
the surgery.
b. The court held that this was not okay because her initial
complaint was very specific, and actually looked like the
dctor used reasonable care. This new complaint is more
general than the first- and as such, the first complaint did not
provide NOTICE of this kind of amendment
3. Azarbal
a. Arzabal the original complaint alleged negligence, after the
sol had run, she moved to amend her complaint to add a claim
that the doctor failed to obtain her informed consent .
b. Because her intial claim of negligence was so broad and
provided notice of any claims she would have arising out of
the procedure- the court allowed the subsequent claim.
4. Bonerb
a. Original claim: the basketball court was negligently mainted
by plaintiff. It included that the participation in the exercise
program was mandatory , and that the injury was caused by
defendant’s failure to “properly supervise and/or instruct
plaintiff”
b. The court found that these allegations provided sufficient
notice for the amendment to add “counseling malpractice”
8. Discovery: Information that is relevant and non-privledged is discoverable.
a. Relevance:
i. Davis v. Precoat Metals:
1. Rule: Information is relevant for purposes of Rule 26 “ if the
discovery appears reasonably calculated to lead to the discovery of
admissible evidence.”
25
2. In this case the plaintiff was looking other complaints of

discrimination limited to a four year time period, at the same plant
where the plaintiff’s worked, and the same kind of discrimination
claims- of race and national origin
a. The court concluded that the plaintiffs seek relevant
information that is specifically tailored to the case.
b. Chavez was distinguishable because he wanted company
wide information- not just from his plant.
c. CF Sidari claimed that he was discriminated against because
he was Italian and Catholic- he wanted to search ALL
discrimination claims.
b. Privilege:
i. Privilege against self-incrimination: Steffan v. Cheney:
1. He admitted to statements saying that he was a homosexual- but he
would not say that he had engaged in his activities because that could
be self incriminating – under the 5th amendment he is protected.
2. special relationships: doctor-patient, lawyer-client, therapist-patient
c. Tools:
i. Initial Disclosures ( rule 26(a)(1) )
1. NEED to check local rules!!
2. (A), the name and if known, the address and the telephone number of
each individual likely to have discoverable information that the
disclosing party may use to support its claims or defenses
3. (B) must provide a copy of all documents
4. © a computation of damages…including
5. (D) any insurance agreement
6. Some proceedings are exempt from the first part.
ii. Interrogatories ( Rule 33) Answers to written questions
1. (a) 25 maximum unless the local rules permit otherwise( to ask for
more 26(b) 2) on any opposing party
a. could 20 joined plaintiffs all gang upon one defendant and
serve multiple interrogatories- the case law is split. The rule
says “any party”
2. (b) Answers and Objections:
a. each interrogatory shall be answered separately and fully in
writing, under oath, unless it is objected to.
b. The answers must be signed by the person making them.
iii. Request for Production of documents ( Rule 34/35) Check local Rules
a. Any and all documents including but not limited to …
b. Only can be served on parties- for non parties you need to
subpoena under rule 45
c. You can object- youcan issue written responses- that have to
be done in thirtydays.
26
iv. Depositions ( Rule 30)

a. sworn testimony of witness, get up to ten, can ask anyone,
more expensive- only get one day with that person- seven
hours.
b. The attendance of witnesses may be compelled
c. If there is a conflict with the date of the deposition-Bring
motion for protective order to change date of deposition.
d. If one isn’t sure who they want to depose- pursuant to 30 b6
they can depose the company generally –tell them what the
matter is about and the company will appoint an appropriate
person.
e. You cannot instruct a witness not to answer- You can object-
and the objection is on the record. You can ask the judge to
rule on the objection later at a summary judgment motion.
f. DO NOT fail to show up.
v. Deposition on Written Questions- rarely used- lawyer writes
out a list of questions and send them to the court reporter.
v. Requests for Admissions: Rule 36
1. A party may serve upon another party a written request for
admission, for purposes of the pending action only, of the truth of
any matters within the scope of Rule 26(b)1 –including the
genuineness of any documents described within the request.
2. This rule is designed to get the easy things out of the way –the facts
that are undisputed.
3. You do not have to admit something just because a witness said that
he saw it.
vi. Physical and Mental Examinations (Rule 35)
1. You need to make a motion and show good cause, actually in
controversy,
2. need good reason to get-limited to the parties
3. usually this comes up when a plaintiff alleges a tort that caused
mental or physical damage.
vii. Ensuring Compliance- Rules 26 (g) and 37
1. Rule 26 (g) : signing lawyer must certif. That the discovery is not
unduly burdensome.
2. shall give sanctions ( the rule 11 of discovery)
3. Rule 37
a. First you have to try in good faith to confer to secure
adequate responses without court action (RULE 37 (a)(2)(a))
b. Bring motion to compel responses (Rule 37 a (2) and (3)
c. In your motion , make a request for expenses incurred in
bringing motion, attornies fees-objection must not be
substantially justified (Rule 37 (a) (4) (a)) you should get
your attornies fees
27
d. If you prevail, and the other side still does not comply with
court order, then you can move for sanctions. Rule 37(b)(2)
e. SHALL give sanctions
viii. Privacy/Protective Orders Rule 26 (c)
1. any order which justice requires to protect a party from
annoyance, embarrassment, oppression, or undue burden or
expense.
2. Courts will engage in a balancing- if it is more relevant than
embarrassing it should be discovered.
3. Stallnacker – sexual harassment claim, wanted to depose other
employees to see if the defendant’s employee harassed them as well-
a. Court sais “any sexual harassment by Graves is relevant,
whether of plaintiff or of others. Consequently the court will
not preclude inquiry about any voluntary romantic or sexual
activities with Mr. Graves…will us such discovery ,
therefore, only for the purposes of this litigation and shall not
disclose it to anyone outside this litigation.
ix. Work Product-Rule 26 (b) 3
1. Protects anyone’s information that was in preparation for litigation.
2. The party seeking this information would need to prove that they
could not get it themselves without undue hardship.
3. Ifthe court provides the information it will protect against the
disclosure of mental impressions, conclusions, opinions, or legal
theories of an attorney in prep for litigation.
4. Hickman v. Taylor.
x. Expert Information- Rules 26 (a) 2; 26 (b) 4
1. Going to testify at trial? 26 (a) 2
2. Not going to testify at trial 26 b4
a. Can only get information from expert witness who is not
going to testify upon a showing of exceptional circumstances
under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same subject by
other means.
b. Thompson:
i. Her mental state after the incident is crucial- her
therapy happened before litigation so no way for the
other party to have gotten it- and now three months
later,her mental status is totally different.
c. Chiquita Banana
i. Should have gotten their own expert
xi. Court’s reponses to bad Discovery:
1. Thompson
a. Wanted information of twwent years of potential
discrimnination- the defense said that it was irrelevant to the
28
claim. The judges told the plaintiffs first to limit their

discovery and see if that yields anything. Essentially the court
is telling the parties to work it out- that they should go and
figure this out on their own.
2. Poole
9. Avoiding Trial and Trial

a. Settlement
i. Why would parties want to settle?
1. cheaper, faster, secrets coming out, might not want to be in front of a
jury, copy cat law suits , might hurt their market standing.
ii. Kalinauskas v. Wong
1. Kalinauskas is a sueing Caesers palace for sexual harassment and
wwants to depose Ms. Thomas, a former Caeser’s employee who
settled. Thomas’s suit settled with a confidentiality agreement,
a. While Ms/Thomas’s depostion is highly relevant, to allow
full discovery into all aspects of her case could discourage
similar settlements.
i. Caeser’s argues that K should have intervened in the
first case.
ii. This court says that intervention is only appropriate if
the case is ongoing at the tie.
b. Thwe court says that this case presents “A Legitimate Public
Concern” and the deposition was allowed but NO substantive
terms of the settlement agreement are allowed to be
discussed.
b. Mediation
1. simple and least formal alternative case resolution
2. could be a private mediator or someone the court endorses.
3. gives the clients a chance to tell their stories to a neutral party.
c. Arbitration
i. looks more like traditional adjucation
ii. usually there is an arbitration agreement in a contract.
iii. Can be faster and cheaper, more educated fact finer, no jury.
iv. Initially judges were far less likely to enforce but noww courts look more
favorably on arbitration.
v. If you want to get out of it- you need a contractual argument
vi. Due process is NOT necessary
vii. Ryans Family steak house cases
1. Floss v. Ryans :
a. Federal court found that the agreement to arbitrate was
invalid because it was not supported by consideration.
29
2. Lyster v. Ryans
a. Subsequent case, fed court from another jurisdiction enforced
the agreement to arbitrate- disagreeing with petitioner’s
complaint that it was unconscionable.
viii. Ferguson v. Writers Guildof America
1. very strange arbitration process- but the court essentially says this is
fine- courts give a lot of latitutde to parties who create the type of
adjudication that they want.
2. this was a private agreement so due process does not apply.
vii. If Congress wanted to exempt a type of claim from arbitration it
could.
d. Summary judgment- Rule 56©

i. Summary judgement should be granted if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
1. Cf 12 b 6- motion to dismiss in which you assume that everything the
plaintiff says is TRUE.
a. given evidence no reasonable person could find for “non-
movant”
b. credibility is an issue for the jury.
ii. Celotex: asbestos case- expands Addicks
1. Two ways a defendant can win on summary judgment:
a. Affirmatively show that they did not do the bad thing
charged- the hard way( only way under Addicks)
b. The easy way is arguing that plaintiff did not prove the case
they had to prove.
2. It does not suffice for the plaintiff to say “ I’ll prove it before
trial” unless it can prove it had insufficient time for discovery.
iii. Bias: insurance for basketball player
1. Family suing for failure of his manager to get him life insurance.
Defense argument is that because he used drugs- nobody would give
him life insurance anyway.
2. Issue did he use drugs?
3. rule:
a. The moving party must explain its reasons for concluding
that the record does not reveal any genuine issues of
material fact and must make a showing supporting its
claims insofar as those claims involve issues on which it
will bear the burden at trial.
b. The non moving party” must come up with ‘specific facts
showing that there is a genuine issue for trial”
4. His friends testified that they saw him using drugs on specific
occasions. His parents just said generally that he did not do drugs-
30
and the coach said on days for drug testing he wasn’t intoxicated-
5. the court said NO genuine issue of triable fact!!
iv. If plaintiff is moving for summary judgment the burden is higher “ I can
prove that defendant cannot possibly win”
e. Pre trial conference
i. Rule 16
1. b – the judge has the authority to set key deadlines
2. f-the judge can dismiss a case WITH prejudice
3. e-can only changean allegation at this point if to prevent MANIFEST
injustice.
4. Sanders v. Union Pacific Railroad Co.
a. Sanders has failed to comply with almost all of the pre-trial
orders
b. He could have asked for a continuance earlier on but now we
are at the pre-trial conference- this is all happening too late!
c. The district court dismissed the case WITH Prejudice- way
harsh
d. The enbankment ( all the judges in the circuit) agreed that this
was too harsh.
5. McKey v. Fairbarn
a. He had originally alleged negligence- in the final pretrial
conference he moved to amend for strict liability
b. If this were earlier he could use rule 15 a
i. Noww the defendant has no time to change his
argumenet.
f. Trial
i. Motion for direacted verdict ( motion for judgment as a matter of law) Rule
50 a “ if no reasonable person could disagree”
ii. On motions for direct verdicts and jnov’s the verdict the court should
consider all evidence, no just that which supports the non-mover’s case, but
in light and with all reasonable inferences most favorable to the party
opposed to the motion.
iii. If the facts point so strongly and overwhelmingly in favor of one party that
the court believes that reasonable men could not arrive at a contrary verdict
granting motions is proper.
1. Pennsylvania Railraod v. Chamberlain
a. Plaintiff’s witness Bainbridge heard a crash
b. Defendant’s witnesses (employees) say that no crash
occurred.
c. Court thinks Bainbridge’s testimony is not good enough-
either because he “heard a crash” or because he is not
credible-
d. Court is not supposed to make judgments of credibility.
iv. Motion for judgment notwithstanding the verdict (jnov) – Rule 50 b
31
1. Standard for both is essentially the same given evidence no

reasonable fact finder could find for non-movant. However there are
benefits to letting the jury decided and then going for 50 b. If the
case is appealed and remanded the jury has already reached a verdict.
2. The lawyer NEEDS to move for a directed verdict first- before he
can move for a JNOV.
3. Reid
a. Whether the cow went through the open gate or the hole in
the fence?
b. The jury found for the plaintiff
c. But the plaintiff could not prove that it was more likely than
not that the coww went through the hole in the fence, that was
father away from the cow when she died, than that the cow
just walked through the open gate.
v. Motion for a new trial Rule 59 ( typically one would make a motion for the
new trial at the same time as the jnov)
1. Lind case page 604
2. judge can order it own her own initiative ( 59 d)
3. two ways
a. Flawed verdict: the jury performs improperly
i. Contrary to the weight of the evidence
1. “against the great weight of evidence”
2. not just that the judge would have come to a
different result.
3. Standard of review- ONLY if the trial court
ABUSED their discretion in granting a motion
for a new trial.
4. a judge might use more discretion in granting a
new trial if the subject of the trial is something
the jury did not understand.
ii. Contrary to law
1. If the jury just ignores the instructions, or
clearly does not understand them.
b. Flawed procedure:
i. Such as, flawed instructions, new evidence, evidence
improperly admitted.
10. Former Adjudication:
a. Rules govern relationships between prior an current law suits.
b. Claim preclusion= whole law suit is precluded
i. Claim precluded if
1. Same claim
a. The Restatement:
i. Same transaction or series of transactions
ii. What is a transaction or series?
32
1. tbd. Pragmatically, giving weight to such

considerations as whether the facts are related
in
a. time, space, origin or motivation
b. whether they form a convenient trial
unit, and
c. whether their treatment as a unit
conforms to the parties expectations or
business understanding or usage.
b. Minority view (IL.)
i. Similarities between the causes of action
c. FIRST case law decides whether we are in a Restatement
Jurisdiction or not.
d. Frier v. City of Vandalia
2. Same parties
a. Really means same parties unless in privity like in property.
Searle Brothers-defendant said the father represented his sons
interests . The court said no- it really has to be the exact same
people- or in privity.
3. Final Judgment
a. A consent judgment counts as a final judgment on the merits
b. A dismissal pursuant to rule 12b could count because there is
usually ample room for leave to amend.
c. Final- eventhough appeal pending
4. Judgment on the merits
c. Issue preclusion= individual claim precluded
i. Four elements:
1. An issue of fact or law
2. Actually litigated and determined
a. Restatment: no preclusion if alternative theories in case
b. case 1-could be contributory N or no damages
c. case 2- could not use issue preclusion
3. by a valid and final judgment and,
4. The determination is essential to the judgment.
ii. Between which parties?
1. Old rule- must be the same parties
2. New rule- doesn’t need to be the same parties but cannot use
preclusion against new victim.
a. Additionally a new plaintiff can not use preclusion if he/she
could have easily joined the suit
iii. Parklane Hoisery
11. Joinder
a. Joinder of Claims
i. Joinder of Claims by Plaintiff Rule 18
33
1. a single plaintiff can join ALL claims he has against a single

defendant
ii. Counterclaims Rule 13
1. Plant v. Blazer Financial Services ( Truth and Lending Act case)
a. Is the counterclaim compulsory or permissive?
i. Compulsory rule 13 a
1. if it arises out of the same transaction or
occurrence
ii. Permissive 13 b
1. a pleading may state any counterclaim against
an opposing party not arising out of the same
transaction or occurance but is the same
subject matter.
b. If compulsory the federal court has supplemental jurisdiction
over it.
iii. Cross claims:
1. 13 (g)
a. A pleading may state a cross claim against a co- party arising
out of the same transaction or occurrence that is the subject
matter of the original claim or of a counterclaim.
b. Joinder of Parties
i. Mosley- Rule 20 a- if the parties are suing for the same transaction or
occurrence
1. here each person would have to show different facts to show that
they were discriminated against.
2. The court says that all of the cases can be joined- they are looking at
a logical relationship- doesn’t require all, just some common
questions of law or fact.
3. It seems like this court might be taking a position on the merits- It
knows that this looks bad for GM to have all nine plaintiffs claim
that they were discriminated against.
ii. By Defendants –Third Party claims (Impleading)
1. Defendant has to decide within ten days from the time the answer is
filed whether or not to make a motion.
2. Price:
a. Defendant may assert a claim against anyone not a party to
the original action if that third party’s liability is in some way
dependent upon the outcome of the original action
i. The third party MAY ONLY be impleaded when the
original defendant is trying to pass all or part of the
liability onto that third party.
3. Owen (Supplemnetal jurisdiction revisted)
a. Plaintiff (IO) and Defendant (NE) in federal court on
diversity. Defendant impleads Owen whom everybody thinks
34
is from (NE) plaintiff sues Owen, and oringinal defendant

drops out.
b. Owen then says “ hey wait a minute! I’m actually from IO” !
c. Can the case stay in federal court? No
c. Supplemental Jurisdiction
i. 1367-Statutory Basis
a. In Federal Question cases the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims that they for part of the same case under
Article III. ( joinder okay if the cases are part of
“common nucleus of operative facts)
b. Cases that are in federal court solely on diversity can NOT
join cases that would that would be inconsistent with
diversity jurisdiction.
c. Courts can decline supplemental jurisdiction if:
i. The claim rises out of a complex issue of state law
( complex meaning new or unclear –Jin?)
ii. The claim substantially predominates over the claim
that the court originally had jurisdiction
iii. The court has already dismissed the claims over which
it had initial jurisdiction.
iv. Exceptional circumstances.
d. Tolls the statute of limitations for 30 days
d. Compulsory Joinder
i. Rule 19 Joinder of persons needed for just adjudication.
1. (a) If a person will not disrupt jurisdiction he should be joined if :
a. In the person’s absence complete relief cannot be accorded
among those already parties
b. The person claims an interest relating to the subject of the
action and is so situated that the disposition of the action in
the person’s absence may
i. As a practical matter impair or impede the person’s
ability to protect that interest OR
ii. Leave any of the persons already parties to a
substantial risk of incurring otherwise inconsistent
because of that parties absence- he should be joined.
2. (b) If the person can not be joined under 2a the court shall consider
the following factors when deciding whether to continue the case
without him, or be dismissed because the party is indispensable
a. what extent the person’s absense might have a prejudical
effect on the other parties
b. what extent the court can use its resources to lessen the
prejudice to the other parties
c. wwhther a judgment rendered in the person’s basence will be
35
adequate
d. whether the plaintiff will have an adequate remedy if the
action is dismissed for non- joinder.
ii. Temple v. Synthes:

1. Don’t have to make the case as efficient as possible. The parties that
the defendant wanted the plaintiff to join did not meet the
requirements of 19 (a). This is an example of the court’s trying to
respect the plaintiff’s autonomy. You do not have to join all potential
tort feasors.
iii. Helzberg Diamond Shop
1. The mall contracted with Helzberg and promised them they would be
one of the only three full line jewelry stores in the mall. The mall
then contracted with other full line jewelry stores including Lords-
which would be the forth full line jewelry store in the mall.Plaintiff
did not join Lords because it did not have jurisdiction over Lords
i. The court said that Lords was a party to be joined if
feasible 19 a but was not an indispensable party so the
case could continue on without it.
ii. EVEN THOUGH- without Lords present the Mall
could be bound by conflicting judgments. This case
could hold that it cannot have a contract with Lords
and Lord’s case could hold that it should
iii. The court here is essentially saying that the Mall
screwed up and they are not going to bail him out of
the mess he made.
e. Intervention: Rule 24
i. 24 (a) Intervention of Right: Upon a timely application anyone shall be
permitted to intervene in an action
1. when a statute of the United states confers an UNCONDITONAL
right to intervene; or
2. When the party’s interests may be affected, unless the party is
adequately represented.
a. Whether the applicant claims an interest relating to the
property or transaction which is the subject of the action
b. Whether the claimants are so situated that the disposition of
the action may as a practical matter impair or impede their
ability to protect that interest.
c. Whether their interest is not adequately represented by other
parties.
ii. 24 (b) Permissive Intervention
1. When a statute of the United States confers a CONDITONAL right
to intervene
36
2. When the applicant’s claim or defense and the main action have a
question of law or fact in common.
iii. Natural Resources Defense Council page 773
1. If an applicant’s interest is similar to but not exactly the same he
should be allowed to intervene, unless it is clear that another party is
already representing his interest.
2. In this case US, a party that already had
12. Class Actions:

a. Rule 23, A class action must first make a motion for certification.
i. Rule 23 (a) requires four factors for certification as a class.
1. Numerosity ( must have a high volume of plaintiffs that would be
impracticable to join- most of the time this means win the hundreds
but some cases have been certified for as low as forty)
2. Commonality: persons wwho share characteristics that matter in
terms of the substantive laww involved.
a. what is necessary for certification are common issues the
resolution of which will advance the litigation-Communities
for Equity.
b. However, the presence of individual questions need not
defeat certification. Rule 23 requires common questions, not
the absence of individual ones-Communities for Equity
3. Typicality : The requirement that the respetntive class member stand
in essentially the same shoes as the average plaintiff. The
representitive should be “typical” of the class and have the same
incentives and motives as the average class member.
4. Adequate Representation
a. Adequacy of the respresentitive
i. The representitive must have some stake in the
litigation and should not bean employee or a relative
of the lawyer.
b. Adequacy of counsel
i. The lawyer should be competant enough to handle a
large complex case like a class action.
ii. rule 23 b
1. 23 (b) 1: essentially to avoid incompatible rulings- not really going to
focus on it a whole lot.
2. 23 (b) 2: Limited to cases in which the plaintiffs are seeking
injunctive or declaratory relief. The drafters of the rules had civil
rights claims in mind. – the female athletes in Michigan is such a
case
3. 23 (b) 3: the most controversial- It includes all claims in which the
plaintiffs are seeking primarialy money damages. The common
question must be paramount and notice must be given. The other
37
twwo categories allow notice but do not require it)
iii. Opting out

1. If you don’t formally opt out- you are bound, unless you can
challenge the adequacy of the representation (Hansberry)
iv. There must be a movement for attorneys fees and courts will review
iv. Settlement:
1. a little strange because now the adversarial system isn’t wworking.
The courts must use their discretion to evaluate whether or not a
settlement is fair.
38

Civil Procedure Outline 1 1. Personal Jursidicition

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Civil Procedure Outline 1 1. Personal Jursidicition

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Civil Procedure outline 1

4. General Jurisdiction- in some cases the party will have such

business there and it was for a long period of time- a

man- and was not being taken advantage of by Big Bad

efficient resolution of controversies- think about how if a

duty to waive their rights to personal service.

iii. Forum Non Conveniens

2. Subject Matter Jurisdiction:

to be considered a “citizen” of California.

clarification of state boundries revealed that Owens was from Iowa

receiving the initial pleading – if at the time of the initial

b. Byrd v. Blueridge state practice of sending the decision to the

4. Show me the money

the United States, its officers,and agencies shall be imposed onlyto

a. What does State Farm mean? If compensatory damages are

1. what is meant by serious questions? not a

a. if in federal court- paragraph one should be “Why are

1. Haddle was fired from his job ( at will employment ) because he

first sentence of rule 9b.

motion it is called a judgment on the pleadings

iv. When do you have to raise them?

1 – Can B move to dismiss on improper venue? No – only 1 preanswer motion is

which place the defendant in a position to avoid any

leave of court or by written consent of the adverse party and

2. In this case the plaintiff was looking other complaints of

iv. Depositions ( Rule 30)

claim. The judges told the plaintiffs first to limit their

9. Avoiding Trial and Trial

d. Summary judgment- Rule 56©

1. Standard for both is essentially the same given evidence no

1. tbd. Pragmatically, giving weight to such

1. a single plaintiff can join ALL claims he has against a single

is from (NE) plaintiff sues Owen, and oringinal defendant

ii. Temple v. Synthes:

12. Class Actions:

twwo categories allow notice but do not require it)

iii. Opting out

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