Emmanuel Ulubiyo Civil Procedure

Prof. Sovern Fall 2009

To bring a case you need justiciability, smj, pj, notice, service, proper venue.

I. Justiciability
A. Issues of justiciability:
I. Mootness: (DeFunis) an issue that is moot is not judiciable. A question that
presents no actual controversy or which has ceased to exist. Forbidden by Article
III.
a. exceptions: where the court has to act in the interests of people who are
injured and do not sue
1) where the D is capable of repeating illegal acts and evading
justice.
II. Standing: (Power) the P must have sufficient personal stake in the outcome to
justify the court in having a claim must have standing to bring a case.)
a. Article III and prudential considerations for standing must be satisfied:
Standing Analysis:
(1) Are the Art. III requirement satisfied?
(2) Are the Prudential Consideration satisfied?
(3) If the prudential consideration are not
satisfied, are they inapplicable for some
reasons, like a statute authorizing the
standing?
2) Under Article III: requires the party who invokes the court’s
authority to show that he personally has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of
the D
(1) AND that the injury fairly can be traced to the
challenged action
(2) AND is likely to be redressed by a favorable
decision.
3) Prudential considerations:
1) P must assert his own legal rights;
2) no abstract questions of wide public significance better
answered by the leg.;
3) it must fall within a zone of interest protected or required.
4) Statutory standing: if the prudential considerations are not
satisfied, are they satisfied by statute.
(1) arises most often in cases with the government.
(2) Judicial Exception to standing: (Griswold v.
Conn.- contraceptives case) assertion of patients
right of privacy b/c he could be made an accessory
to their ‘crime.’
(3) Advisory opinion: the courts cannot issue
advisory opinions – all decisions must arise from
disputes.
5) Ripeness: a case is not yet ready for adjudication (founded on
Article III and the prudential considerations.)

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II. Subject Matter Jurisdiction→ is the maximum power the state can exercise.
Competence→ is the power the state has chosen to give to a specific forum. Rarely
referred to in real life––Used for distinction for court in states
Subject Matter Jurisdiction is required for a court to hear a case. SMJ is Jurisdiction
over the dispute.
a. General Rules of SMJ
1) may not be conferred by consent
2) objections to SMJ can be raised at any time
3) judgment rendered without it is invalid and can be collaterally
attacked (subject to exceptions.) Outside of the appeals process.
4) Must be pleaded and proved
1. Diversity jurisdiction: sec. 1332
a) $75,000+ minimum (not including interest and costs.)
a. P can claim any amt, unless it is clear to a legal certainty that she cannot
recover more than $75,000
b. Ps ultimate recovery is irrelevant to jurisdiction  look at § 1332(b)
c. Aggregation – adding multiple claims to get over $75,000
a)You can aggregate if one P vs. one D  single P can aggregate two
$40K to meet $75+K
b) 2 separate Ps have claims for $40K each cannot aggregate.
c)P w/ a $30K claim can aggregate w/ a P w/ an $80K claim. 1 P
must meet $75 b4 adding on
1. P may have as many claims as she wants to satisfy the
controversy amount
b) Complete diversity requires: no same state on opposite sides, foreign countries
don’t destroy diversity
i. citizens of different states; (NY v. NJ for example)
ii. citizens of a state and citizens and subjects of a foreign state; (NY v. France)
iii. citizens of different states and in which foreign states or citizens or subjects
thereof are additional parties; (NY v. NJ and France)
iv. a foreign state, defined in § 1603(a) of this title, as  and citizens of a state or
of different states
a. citizenship of a person: 1) US citizen / permanent resident AND 2)
have domicile in the state.
a. domicile: a person can only have one domicile. 2
components: presence at one time in the location and state
of mind. Factors: voting, taxes, DMV registration, driver’s
license.
i. US domiciled abroad are not citizens of a state or
foreign state (immune to fed juris)
ii. Permanent Resident Aliens deemed citizen of the
state where domiciled. 28 USC 1332(a)
b. corporate citizenship:
a. where it is incorporated and
b. where it has its principal place of biz. (Unless insurance
corp. they’re where their insuree’s are.) can only have ONE
PPB!
o how to test (PPB)
 talk about the corporations nerve center
a. where the decisions are made (headquarters)
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  talk about the muscle center (place of activity)
a. where the corp does more stuff than
anywhere else
 total activities test
a. use the nerve center unless all the activity is
in one state

c. Un-incorporation: are citizens of every state of which their

members are citizen
d. Partnerships: have citizenship where the individual partners are
incorporated.
1. Interpleader: Interpleader is a form of joiner open to one who does not know to which of
several claimants he or she is liable, if liable at all. It permits him or her to bring the
claimants into a single action, and to require them to litigate among themselves to determine
which, if any, has a valid claim
1. § 1335 Statutory Interpleader
(1) $500 or more, if:
o Two or more adverse claimants, of diverse citizenship (as defined
in § 1332) are claiming to be entitled to such $ or property (minimal
diversity) and
o D has deposited such $ or prop into the registry of the ct, there to
abide by the judgment of the ct
a. minimal diversity + lower amount in dispute = broader
availability
b. built in SMJ
c. Nationwide service of process (Rule 4(k)(1)(C))
i. Does not apply to rule interpleader
2. Rule 22 Interpleader
. (1) Persons having claims against the D may be joined as Ps and required to
interplead when their claims are such that the D is or may be exposed to double
or multiple liability.
o Regular rules of service of process
o No SMJ provision. Must be fed Q or complete diversity
and amount in controversy exceed $75K
2. Federal Question Jurisdiction (sec. 1331)
1) Civil actions arising under the Constitution, laws, or treaties of the United States.
(laws include statutes, fed. common law and regulations of agencies.)
o “Well Pleaded Complaint” Motley: Federal questions must arise from the
original claim and not from an anticipated defense.
1. Mottley Rule: It is not enough that P alleges anticipated defense to
his C of A.
2. Motley loophole is to mention fed law in complaint for declaratory
judgment to fed law so…look out for it.
a. Skelly Rule: you cannot evade Motley by seeking declaratory relief. Test: If,
but for the avail of the declaratory judgment procedure the fed claim would
arise only as a defense to a state created action, smj is lacking.
a. Who would sue for affirmative relief?
b. Would the party suing for affirmative relief arise
under federal law? – if yes, then the fed courts can
hear the case.
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 c. Declaratory judgment: statement by a court as to
what law IS or Requires. Can only seek if case is
justiciable.
A. Supplemental Jurisdiction: Section 28 USC 1367(a)
a. Is the authority of the Cts to hear additional claims (state claims) arising from the
common nucleus of operative facts as the original claim even thou the Ct will lack
subject matter jurisdiction to hear the case independently
1) 1367(a) gives it; 1367(b) takes it away.
b. Historically it’s based on Pendant and Ancillary jurisdiction
2) Pendant: P makes related claims
3) Ancillary: related claims made by D or 3rd party
c. (Supplemental Jurisdiction test): Roadmap: B4 Allowing: SJ
1. Is there a Constitutional power under Article III? Courts have power to hear
cases- not claims. So long as you fulfill Gibb’s test, you’ve got a case .
2. Does the federal claim have sufficient substance to confer SMJ?
a. Federal Question or Diversity
3. Do the state and fed claims arise from a common nucleus of operative facts
(Gibb’s Test) (1367(a)) If yes, go on…
Under 1367(a):
i. Can add a non-diverse Δ in a federal question
ii. Can add a diverse party whose claim does not satisfy the juris. Amt in a
diversity case
iii. Can add a diverse Δ whose claim does not satisfy the jurisdictional amt
in a federal question case.
The Supplemental Jurisdiction Problem: Roadmaps
 original claim satisfies SMJ, but…
 additional/related claims do not meet FQ or diversity, ASK:
QUESTION #1: does §1367(a) grant supplemental jurisdiction over this claim?
Use the Gibbs test
 claims must share a common nucleus of operative fact
 this includes additional claims by P and any cross/counter claims by D or other
parties (including joinder or intervention of additional parties)
 1367(a) confers supplemental jurisdiction over all claims, including those that do not
independently satisfy the amount-in-controversy requirement, if the claims are part of the
same Art. III case.
QUESTION #2: does §1367(b) deny supplemental jurisdiction?
 If original claim is a FED Q then always have supplemental jurisdiction over St. claim,
 If original claim is DIVERSITY then no supplemental jurisdiction for:
o claims by P against 3rd party D if D was made party under Rule 14, 19, 20 or 24
o since claim is not asserted by original P, 14, 20, 24 –– 1367(b) does not apply
 In diversity cases there is supplemental juris for claims that arise from same T or O as
main action and are asserted by D (not P)!
o Do NOT need amt in controversy if asserting supplemental jurisdiction if
the original claim invoked diversity.
o There is no supplemental jurisdiction if there was no proper original jurisdiction
to begin with.

QUESTION #3: should the CT hear it? 1367(c)

 CT has discretion over whether to take the case even if it meets #1 and #2

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 o If Fed case is dismissed, the state case should be, too. Usually dismiss if:
 State law predominate?
 Would require Fed CT to decide sensitive/novel issues of state law
 Would hearing together confuse jury?
 Fed claim resolved early leaving only state claim?
 Never, never, never forget to satisfy the rules for diversity 1 st
in the original claim.

III. Personal Jurisdiction –– places a geographical limit on where a P may bring a

case; Limited by Due Process Clause in the 14th Am; D must raise it or waive it at the
outset per FRCP: 12(h)(1).
→In Personam jurisdiction: jurisdiction over the person; adjudicate the rights and order
the Δ to pay whatever the court sees necessary.
1. Traditional basis for in Personam J: Pennoyer v. Neff – (presence, appearance,
consent, and domicile, Quasi-in-rem).
a) Presence (Pennoyer) – presence in the state for service of process no matter
how short the duration is sufficient to give the state in personam jurisdiction
over the party
i. Exceptions: Can’t serve non-resident who
voluntarily comes into the state for the sole purpose of attending a
litigation in our courts as suitor or witness (can serve upon a person
who is compelled to come into the state). (Cooper v. Wyman)
ii. Transitory presence may not be enough (infra.) Burnham case
Transitory presence may not be enough per BURNHAM (CA took
PJ but Supremes split 4-4)
1. Scalia - there is PJ b/c the traditional
bases survive
2. Brennan - you must apply minimum
contacts in every case (trad bases are not
enough) but dfdt’s three days in
CA=min. contacts
b) Appearance – Appearance in court is sufficient to give the court in
personam jurisdiction over the Δ. Don’t have to show constitutionality –Per
Larry O’s question.
i. Special Appearance Exception: If Δ wants to appear solely to
contest jurisdiction, Δ may make a special appearance (see
challenging jurisdiction)If you loose, it becomes a general
appearance. Under Fed. Rule 12(b) you can raise other defenses
without waiving the juris defense.
c) Consent
 Express Consent  D can specify before hand (National Equipment Rental case)
 Parties can consent (“I don’t mind coming to CT wherever”)
 Either before suit begins (contract) or afterwards
 Can appoint an agent -- RULE (4)(e)(2)
 If you appoint your own agent and agent does not notify you then it
is your own problem and jurisdiction still stands (decisions in cases
will too)
 Forum selection clauses
o Carnival Cruise Lines case

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 o CTs have the responsibility to determine whether forum
selection clauses in form passage contracts are fair.
o Test for forum selection clauses:
 Reasonableness (Policy Considerations)
o What if the ship sank and a bunch of people sued
in many states?
o Would it be better for the cruise line to handle all
of them in one state? Yes. So it was reasonable.
 Fundamental Fairness
o How to evaluate the fairness of such clauses?
 whether Carnival was, in bad faith,
discouraging legitimate claims from its
passengers. 
 The CT says that because Carnival does
business primarily in Florida and has a
lot of cruises that depart from Florida,
they didn’t include the clause in bad
faith.
 Implied Consent  deemed to have appointed an agent to accept service w/in state
 Hess v. Polosky – statute of non-resident motorist act  agree to PJ w/in State by
driving on the roads of the State
 Hess – state appoints an agent w/in state and you imply consent to that
agent by driving
 If agent was appointed for you and the agent does not notify you then
jurisdiction will not stand b/c in effect you were deprived of due process.
 Policy Consideration: state has strong reason to regulate in-state activity of
non-resident (cars are dangerous)
 Why not just mail the service to the driver?
 It would not confer jurisdiction.

d) Domicile – The place in which a person is domiciled is sufficient to concur
in personam jurisdiction to the court. Don’t have to show Constitutionality
i. Corporate presence is based on either the ‘Doing Business’ there
OR ‘Solicitation +’ (NY either)
ii. Corporation do not have domicile →can only be sue in the state it
was incorporated
iii. Rationale: A state which accords privileges and affords protection to
a person and his property
iv. Residence and domicile may be the same, but they do not have to be.
The difference is the state of mind. There is jurisdiction over
residence as well, as long as the relationship is not so attenuated.
a. Doing Business & Solicitation Plus- test is a traditional basis
for finding jurisdiction over a business.
b. Or Is there a Long Arm Statute that gives the state the right to
jurisdiction over the person? In NY 302. P. 1343 of CB.

Roadmap: Personal Jurisdiction→ All Question to ask whether P.J. is constitutional

Constitution grants power and state legislatures decide how much that State will exercise.

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 Constitutional grant of jurisdiction
How much of the Constitutional grant the particular State’s legislature has decided to
take

State long-arm statute might exceed the Constitutional grant (do not take for granted)
Exceeds the limits of due process

1. Has the state chosen to hear the case? To answer we look at:
a. Traditional bases(presence, consent, domicile, appearance, quasi-in rem)
b. Long Arm Statute
2. Is the exercise of jurisdiction using the Long Arm Statute constitutional per
the Due Process Clause? Look to:
a. International Shoe Box?
General: Maybe if General and Specific
continuous & systematic Probably. YES if both
contact with state? continuous & systematic &
Helicopteros – go to the activities in suit give rise to
min contacts analysis. suit!!! Still go ahead and
do a Min contacts test.
NO→ means no Specific: Maybe
continuous & systematic (activities in state give
contact in state & activities rise to suit) go to the min
did not give rise to suit. contacts analysis. Hess’s
case

b. Minimum contacts→ Availing/Purposefully Directed

i. What is enough availment?
a. Advertising
b. Design products for sale w/in state
c. Creates, controls, employs the distribution system
w/in state
d. Contract and other arrangements (Burger King)
e. Purchasing, even high $ amt, is not “availing” 
jurisdiction can’t be asserted (Helicopteros case)
“Stream of Commerce” Arguement -- Asahi: CT split on whether act of
selling goods outside of state that will likely be imported into the forum
state for resale suffices.
Brennan: enough to put in stream w/ knowledge that product
will end up in forum state
Justice O’Conner: mere awareness not enough. Required “clear
evidence” that D seeks to serve the market in the particular State.
 Lower Cts have reached varying decisions b/c no hard
ruling from Sup CT
 RULE: If meet the O’Conner test then probably have PJ
since the other justices required less.
o Foreseeability: D must know or reasonably
anticipate that activities w/in forum state make it
possible that she will be sued there
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  Ex: national magazine should expect to
be sued in any state for libel
“Long-Arm Statutes” -- Minimum Contacts From Outside of State:
D does not have to be in the State if commits act outside State that she
knows will cause harmful effects w/in the State.
Burger King – 20-year franchise relationship w/FL corp, but
never actually went to FL
c. Fairness Factors: per Burger King Rule: five factor test for “fair play”:
i. Burden on the D – burdens on corporate Ds tend to be diluted
as compared to burdens on individual Ds. “so gravely
difficult/inconvenient that a party is unfairly put at a severe
disadvantage in comparison to his opponent”  difficult
standard to meet.
ii. The state’s interest – what interests does the forum have in
having that litigation in that state as far as protecting its
citizens and corporations?
McGee  strong interest in protecting residents of the State
Asahi  CA only slight interest in exercising jurisdiction/big
burden for Asahi (D, #1)
iii. The P’s interest – everyone would prefer to sue in their own
forum.
iv. Interstate efficiency interest – is this forum better, more
efficient, more expedient, or cheaper than any other forum? It
is rare that jurisdiction in a case turns on efficiency, because it
can usually be argued both ways.
v. Interstate policy interest – Shared interests of the states in
furthering fundamental substantive social policies
3. Should the D reasonably anticipate being hauled into court?

In Rem Jurisdiction: (usually to establish title in the property)

 Decide rights of all persons to property located w/in forum state
o Title registration
o Confiscation of property (car used to traffic drugs, etc.)
o Distribution of assets of an estate
 No jurisdiction if property brought in by FRAUD or FORCE
 Notice: Mullane standard
Ex: Suppose someone in CA wants to sue NY and CA does not want
to travel to NY and NY owns land in CA. Can CA simply attach
NY’s land in CA?
 Sometimes if CA claims that he owns the land CA can use in
rem jurisdiction.
Quasi in Rem Jurisdiction (usually a personal claim against a debtor)
 Determine certain disputes between P and D regarding property when the
property is in the forum state.
Requirement for QIR?
 The res must be in the state
 The res must be seized at the commencement of the case
 The owner must have an opportunity to be heard
o A judgment against D can only be satisfied out of the property
w/in the State.

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  Attachment: must attach property at commencement of d case
o Attachment Notes
 Garnishment: seizure of a debt, including a bank
account or wages
 Sequestration: seizure by an equity court, like
garnishment or attachment.
 At common law, you could attach a debt wherever the
debtor was located
 Limited Appearance Notes:
o Allows the owner of the property that the court exercises QIR
jurisdiction over to show up and fights on the merits w/o
subjecting herself to PJ
o In personam jurisdiction:
 Federal courts are split on whether or not you can make
a limited appearance in federal court
 NY rule is in CPLR 320©(1) and 314(3).
 NY allows limited appearances
 If the property itself is the source of the controversy ( Related) and the
property is in the State then it would be strange for the State not to have
jurisdiction.
o BECAUSE the D avail himself of the benefit of keeping property
in the State (protection, etc.)
o Close connection between property and litigation provides
necessary minimum contacts.
 If the property was not the source of the controversy (unrelated)?
o The presence of property alone would not support the State’s
jurisdiction w/o additional ties between the D, State and the
litigation.
o Very rare b/c with long-arm statutes it is uncommon not to
have in personum juris if there is enough contacts to use it.
Example: A goes to CA and makes contract with B. B breaches
contract. A lives in NC and finds out that B has a boat there.
Just b/c B has property in NC does not mean that A can attach it
and sue B if the C or A has nothing to do with the property.
Would have to have minimum contacts between B and NC, etc.
 In NY you can still use quasi in rem when there is no other way to
get PJ over someone that the State wants to have PJ over.
o If you can exercise in personam then you could exercise
quasi in rem – a State can limit the amount of PJ that it will
exercise if it wants to.
 NY has chosen not to exercise long-arm statutes in defamation cases.
So there would be quasi in rem jurisdiction in defamation cases but
chooses not to use personal (302)

Full Faith and Credit Principle:

 Constitution provision: “full faith and credit shall be given in each State to the public
acts, records, and judicial proceedings of every other State…have faith and credit given
to them in every ct w/in the US as they have by law or usage in the cts of the State from
which they are or shall be taken.”
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  Two exceptions
o When first CT lacked subject matter or PJ
 To prevent States from ruling the World…
Federal Bases for Personal Jurisdiction:
Ordinary Diversity and Federal Question Cases:
 14th Amendment is inapplicable her, the applicable Amendment is the 5 th
 Under Rule 4(K)(1)(A)→ use the rule of the state in which the Fed Ct sits
o Use the exact same rule a state will use for dismissal and same approach as In
personal jurisdiction
o Same policy underlying Erie Doctrine applies
 Special Cases:
o Special statutes:
 Under Rule 4(K)(1)(C)→nationwide personal jurisdiction over everyone
regardless of contact with any forum state and Δ even w/o minimum
contact
 Rule 4(K)(2): 100 Mile Bulge
 Personal jurisdiction within 100 miles of the court
 Usually dispute in state boundary
 Rule 4(K)(2): Nationwide Contact
o If Δ is sued on Fed Question and Δ is not subjected to any personal jurisdiction in
any state, Fed Ct can still have jurisdiction on Δ, even if there is no contact with
the nation as a whole.
In Rem & Quasi in Rem in Federal Ct:
1) 28 U.S.C. §1658: confers in rem jurisdiction on Federal Ct
2) Quasi in rem:
a. Rule 64 provides that Fed Ct use the attachment rules of the state in which they sit for
the most part
b. Rule 4(n)(2) provides that an attachment case in a Federal Ct, Δ can be serve in the
same way as it is done in state court.

IV. Removal (1441) - permits D to force P to litigate certain actions in federal court,
rather than in the state forum originally selected.
a. Purpose: (in diversity) removal protects a non-rez D against any local bias
that might be encountered in the state court b/c the D being a foreigner.
 When Diversity is the basis for removal: Parties must be
diverse at the time complaint was filed AND at the time the
notice of removal was filed. (subj to exceptions)
 D may only remove on diversity if not a citz of the state in
which claim was brought.
 Only D can remove.
 Multiple Defendants: They must all agree to remove. And
non of them (if it’s diversity) can be from the state in which
claim was brought.
b. Purpose: (in Fed Q) removal equalizes the ability of both parties to have a
federal question litigated in its ‘natural forum.’
 D may remove on a federal question from his home state.
Actions is removable when:
i. Only if it originally could have been brought up in Fed Ct
ii. Cases may be removed only from state to federal

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 iii. time remove is very limited (important to know 4 exam-
usually 30days)
iv. The right to remove is limited to Δ
v. Because of the Motley (well pleaded complaint rule) the
basis for removal must appear as part of the claim so that
removal is sought on the basis of a fed q., the allegations of
the P’s complaint must raise a substantial federal question
(therefore, no removal on a D’s counter.)
 Never never never forget that you must meet the requirements
for Diversity!!!! If you’re removing on diversity.
1441(c) ––When removable claim + non-removable claim are joined CT has discretion
to take the whole case or to remand the parts that belong in State ct.
Policy considerations for taking BOTH:
 Judicial economy (avoids parallel state litigation)
 D would have to defend two separate C of A and D might be
deterred from exercising their removal right and the Fed
interest in providing an opportunity to litigate in a fed forum
would be thwarted.

V. VENUE 28 U.S.C. 1391

 D must be sued in district where:
 D resides or
 Where important events relevant to the suit took place.
(Keep P from dragging D around to out of the way/irrelevant locations for trial)
 solely on diversity: where any D is subject to PJ at time suit commences
 not solely on diversity: where any D is found
 Only applies to cases commenced in Fed CT
o If you remove from state ct then you go to dist ct that “embraces” the
state ct where action is pending
 Can be waived if not raised  if D does not raise it when answering complaint
FRCP 12(b)
 CT issues default judgment: Not proper venue? judgment is binding & entitled to
FF&C (D had opportunity to raise)
 Can only transferred to a CT where venue would have been proper to begin with
 Parties can agree on venue in a contract and usually enforceable (Carnival
Cruise Line and farm equip case)
PJ  constitutional right; venue  not constitutional right

VI. CHANGE OF VENUE 1404(a) (Ferens case): TRANSFER

Transfer When Venue was PROPER to begin with:
 for the convenience of the parties and witnesses and
 in the interest of justice
 When P moves for transfer under 1404(a) the transferee CT must follow the choice of
law rules that prevailed in the transferor CT.
 Change of “CThouse” not change of rules!

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 o A transferee CT applies the same law that the transferor CT would have
applied.
 Transferee CT would use law X
 Transferor CT uses law Y normally, but will use law X in a
transferred case. Why?
 should not deprive party from state law advantages that exist
absent diversity jurisdiction
 should not create or multiply opportunities for forum
shopping
o if you would get diff rules elsewhere you might look
around and try to transfer in order to get them.
 Forum Non Conveniens: CT dismisses the case because there a more appropriate forum
 even if there is SMJ, PJ and proper venue
 To go from one Fed CT to another Fed CT, use FRCP 1404 or from Federal to State,
or State to Federal, or State to another State, or State or Fed to foreign country
 FNC is not a transfer  CT will stay/dismiss case on condition it to be brought
in another forum
 Usually because the other CT is in another judicial system
 cannot transfer to another judicial system (ie, foreign country)
o Piper case (airplane crash case, better to hear the case in Scotland!)
Possibility of less favorable chance of recovery in a different forum should
not bar dismissal

 Factors to take into account in deciding FNC:

1. Is there another forum at all?
2. Plaintiff’s choice of forum
3. Where the evidence is
4. Where the parties are
5. Where the witnesses are
6. Access to the site
7. Where the witnesses will be within the compulsory process of the court
8. Where the dispute can be resolve in one case
9. Whether the court will apply its own law or an unfamiliar body of law
10. Whether the locality has any interest in the litigation

ERIE DOCTRINE: must apply state law where the CT sits if it is an issue of
Substantive law IF federal law/Statute/FRCP is not on point then Erie applies
Roadmap for Erie: Synthesizing Erie:
I. Fed. R. Civ. P. v. State Law:
1) Is there a FRCP on point?
o If yes, make sure the rule does in fact apply
o Give the rules their plain meaning.

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  EX: FRCP 4 allows substituted service of process. State law might not.
CT should allpy FRCP 4 b/c it is on point and is valid.
 A FRCP is valid if it is arguably procedural. (Hanna
2) Is there a direct conflict w/ State law?
a. (fed = discretion; state = mandatory)
b. look at purpose behind the rules
3) Is the FRCP w/in Congress’ power?
 There is both constitutional power and statutory authority for adopting the FRCP
o Congress does have the authority to enact the FRCP:
 Art. III +
 Art. I, Section 8
 Provides for creation of Fed cts subservient to Sup Ct
 Has power to create necessary and proper rules to govern
those cts (rules giving jurisdiction, etc…procedural)
 Procedural Rules: certainly procedural and those in the grey area,
but not that are entirely substantive
 Room to argue about what is substantive
o To determine whether procedural or substantive use one of
the following tests:
 Ely Test: procedural rules are designed to make the
process of litigation a fair/efficient mechanism for the
resolution of disputes. Substantive rights are those
granted for other reasons.
 Hart & Wechsler Test: substantive rules are those
which characteristically and reasonably affect people’s
conduct at the stage of primary activity.
 REMEMBER: FRCP have a presumption of being
valid.
4) If the FRCP w/in Congress’ power, did Congress delegate to Sup CT under REA?
 Rules Enabling Act (1934) 2072 – gives Supreme Ct power to create FRCP
i. Gave power to Sup CT to govern practice and procedure: “Shall not
abridge, enlarge, modify substantive rights”
ii. Burlington  point of FRCP is to have uniform system of rules so
FRCP that incidentally affect litigants’ substantive rights are not against
policy if reasonably necessary to maintain the Rules.

II. Federal Practice v. State Law: Federal Practice: Something the Fed Ct do, but
that is not a formalize rule in the FRCP book
1. Is there a federal practice on point?
2. If yes, does it conflict with state law?
 If yes…Then you use the twin aims of Erie to figure out if the rule is
substantive or procedural.
i. Forum shopping
ii. Inequitable administration of laws (out-of-state P more laws
available then in-state Ps)
 You argue what is useful to your client – if the twin aims will come out for
Fed law or state law then you argue that Byrd does or does not still apply.
 DO NOT USE Twin Aims IF:
 Fed statute
 FRCP
13
  If Twin-Aaims test comes out for State then:
 Is there a strong Federal policy v. weak State policy apply Byrd Balancing Test
 Byrd went with Fed even though Twin Aims came out for State
o If you want state to apply you argue:
 Byrd overruled by Hanna
o If you want Fed to apply you argue:
 Byrd not overruled by Hanna
 That Byrd survives in Gasperini in an all-or-nothing
situation, etc.
 Gasperini Rule: When a Fed Practice conflicts w/ a ST statute, use
the outcome effective test→
 Is there a conflict?
o YES  use Fed practice
o NO  is conflict procedural/substantive?
III. Federal Statute v. State Law
1. Does Federal Statute cover the point in dispute?
 Determine if the statute is sufficiently broad to control the issue before the CT
2. Does it represent a valid exercise of Congress’ authority under the Constitution?
 If it is arguably procedural (Hanna)…then it is valid b/c Congress has
authority to enact statutes. Valid fed statutes trump state law even if in conflict
with state law. Grey area okay!
 Federal statutes are supreme laws of the land and they trump state laws
even if conflict if it is on a procedural matter!
 Stewart: 1404, arguably procedural, trumps state law.
 Procedural + grey area = okay
 Congress does have the authority to enact procedural rules to govern fed cts:
 Art. I, Section 8
o Provides for creation of Fed cts subservient to Sup Ct
o Has power to create necessary and proper rules to govern those cts
(rules giving jurisdiction, etc…procedural)
Reverse Erie
 State Cts have concurrent power to hear most cases that could be heard in Fed CT.
 State Cts have to use federal law.
 State Cts have to determine how much they can use their own procedural rules.
 Dice = Congress has constitutional power to enact legislation regulating the mechanics of trial in a
state CT whenever a federally created claim is involved. ONLY IN SOME CASES!

How do you determine the law of a particular state?

Klaxon  Fed Ct use the choice-of-law rule of the state in which it sits
 If Fed Ct uses different choice-of-law rules than the state in which they sit it would lead
to forum shopping.
 If the Fed Ct has persuasive evidence that the highest CT would not follow the lower CT
decision then it can decide it similarly to what the state’s highest CT
 You can ask a state CT if that state allows you to.
 You can look to answers of the highest CT, but follow trail CT if there is nothing else. 
14
PLEADINGS
SUMMONS – Rule 4
 Due process requires notice to D “reasonably calculated, under circumstances, to appraise
interested parties of suit and give them an opportunity to present objections” 
Constitutional requirement/Mullane standard
 Initial complaint gets special treatment b/c otherwise D might not learn of suit, after D
knows, the rules of notice about pleadings, etc are looser because D is already on the
look-out for them
COMPLAINT (pleading by the P) – Rule 8(a)
 Filing to the complaint begins the case  P doesn’t have to explain legal theory, just give D
notice.
 Rule 8(a) requirements
1. A short statement of the grounds for the CT’s jurisdiction (SMJ)
2. Short and plain statement showing that the pleader is entitled to relief
a. Rule 2  give P benefit of the doubt even if doesn’t state C of A
3. Demand for judgment for the relief the pleader seeks.
 RULE 8(a)(3) you ask for difference types of relief in the same form
4. Rule 11 requires attorney to sign complaint  certifying that it isn’t “frivolous”
 Rule 8(e)(2) – you can state as many separate claims or defenses as the party
has regardless of consistency and whether based on legal, equitable or maritime
grounds.
 Inconsistent Pleadings OK!
 Conflict bet. Rule 8 and Rule 11 = 8 requires plain statement, no great detail, but
11 requires that you have enough evidence not to bring a “frivolous” claim.
o NOTICE PLEADING – state enough so the D knows what he is being sued for
 exceptions to notice pleading
 Rule 9(b) – a fraud complaint is typically required to state
o Time of the misrepresentations
o Place of the misrepresentation
o Contents of the misrepresentation
o The person who mad the misrepresentation
o rule 9(g) – special damages must be pleaded w/ particularity
(give detail)
 What if P doesn’t state a C of A?
 Garcia  P stated a claim upon which relief can be granted, but he did not
state a C of A.
o RULE 2, Cts dismiss claims only if a P does not state a claim upon
which relief can be granted – you won’t get dismissed for failing to state
a C of A.
o What is the standard for deciding whether P has stated a claim ?
 Give P benefit of every inference at this stage of the trial.
 SERVICE of PROCESS -- (Rule 4e) – Required by 14th Amend. “due process”
 Service can be made by any non-party who’s at least 18 years of age – Rule 4(c)
o Have to prove service (file affidavit w/CT)
 personal service –
o anywhere in the forum state
 substituted service (not serving D but a substitute) – Rule 4(e)(2)
o ok if it is at D’s usual abode (house)

15
 o must serve someone of suitable age and discretion who resides there (kid isn’t okay, but
spouse would be)
 D’s agent – Rule 4(e)(2)
o appointed by contract or by law (agent in state  driving on highway types)
o If agent was appointed for you and the agent does not notify you then jurisdiction will
not stand b/c in effect you were deprived of due process.
o If you independently set up your own agent then you are still responsible even if the
agent does not tell you about the summons/notice.
 Using state rules 4(e)(1) says
o you can serve by any method allowed under law of the:
 state where the Fed CT sits; or
 state where the service is effected
 immunity from process
o parties, witnesses and attorneys who enter state to appear in another action
o party who was induced by P’s fraud/deceit to enter a state to be served
 publication, etc.
o might be okay in some limited circumstances  reasonably calculated to give notice?
Then ok. (idea from Pennoyer and played out in Mullane)
 waiver of service of process - Rule 4(d)
 not service of process by mail  it is waiver of service by mail
 P can ask D to waive formal service of process requirements by:
o Sending D complaint + waiver of service form
o Two copies of notice of action
o And request that D waive formal service
o D is supposed to sign and return the waiver of service form
 Incentive for D to waive formal service:
o Duty to avoid “unnecessary costs of serving summons”
o CT must impose $$$cost$$$ of service of process on D IF D refuses to waive
w/o good cause
o Gives 60 days to respond to complaint instead of usual 20 (quite the carrot to
entice)
DEFENSE to service of process: FRCP 12(b)(5)  attacks adequacy by P to give D notice
 service of process of a corporation (Rule 4(h))
 serve an officer;
 or managing or general agent
o does not include all employees
o enough job responsibility that we can expect him to transmit important
documents
 in addition you can serve in any method allowed for corporations under state law
o state where the Fed CT sits; or
o state where the service is effected

 service of process on a g’ment employee or g’ment itself – Rule 4(e)

o serve district attorney of district where action is brought

Purpose of Pleadings – Rule 7 –– Just, speedy, and inexpensive determination of every action.
 Narrow the issues to be tried – don’t want issues that are too broad
 Notice to the parties – due process right of notice – Constitutional right to know that you’ve been

16
 sued
 Notice to the ct  should it get jurists? Is it an issue that the judge decides? Determine if it has
jurisdiction
 Serves as a record
 Dispose of cases where there are no real issues to be heard
 Pleadings just give you enough notice to know what to ask about during motions/discovery

PLEADINGS TODAY
o Burden of pleading: who has the burden to raise an issue during the written pleadings
o Burdens of Proof (substantive for purposes of Erie – so it is state law)
 Substantive  would lead to forum shopping if it wasn’t governed by state
law
 Production: who has the burden of actually producing evidence (here is the
actual contract…etc.)
 Persuasion: who has the burden of persuading the fact finder
Amending Pleadings  RULE 7(a)
 If opponent has not filed an answer (i.e. motion to dismiss) then you can
amend your pleading.
NOTE: It’s easy to sue people: you give them notice. Everything else in procedure is designed to
“winnow down the issues” to just those things that will be tried on the merits. You join up people, you
“discover” which claims have merits, and then you go to trial or settle or get summary judgment.
AFTER P FILES THE COMPLAINT… D MUST THEN BRING A MOTION TO DISMISS
(Rule 12(b) or …ANSWER THE COMPLAINT and PUT DEFENSES IN THERE

 Motion for a More Definite Statement -- Rule 12(e) if complaint is too vague
o Opponent has 10 days to file a more definite statement
 Motion to STRIKE – Rule 12(f)
o Before responding to a pleading, or if no responsive pleading is allowed, w/in 20 days
after service of the pleading any:
 Insufficient defense
 Redundant, immaterial, impertinent or scandalous matter
 Can be made by the CT at any time, too.
RULE 12(b) MOTIONS To DISMISS
 Rule 12(g) – Must raise all motions to dismiss at once. Cannot raise one, get answer,
then raise another.
 Rule 12(h) – waiver/preservation of certain defenses
RULE 12(b)(6): Failure to state a claim for which relief can be granted
 Assuming the alleged facts are true, do P’s allegation (assuming they can be proved) state
a claim for which a CT might grant relief.
 D argues: “wrong” claimed by P is not a recognized violation of legal right
 Gives P benefit of every factual disagreement and inference
 If after that P does not have a claim which can get relief then ct can dismiss
 CT only looks at the pleading to determine if there is a right to relief
 Only way to get dismissed for this is: if P can prove no set of facts in support of his claim
which would entitle him to relief.
o HYPO
o Car leaves road and hit husband jogger. Wife jogger, not hit, sues driver for
emotional duress.
o State does not allow relief for emotional duress w/o physical contact.
o Driver motions 12(b)(6). Should be granted b/c even if wife jogger proves that
17
 driver was negligent, etc. she will not have a right to relief b/c State does not
allow relief w/o physical contact, etc.
 12(b)(6) v. Summary Judgment
o 12(b)(6) = even if P proves everything there is no relief available
 Summary Judgment = no disputed issues of material fact to be tried & moving party is
entitled to judgment on the undisputed facts – Rule 56(c)

ANSWER -- Rule 8(b)

 If you don’t file a Rule 12 motion w/in 20 days of service of process, then you have to file an
answer.
 You don’t have to answer until a Rule 12 motion is ruled on, which is one good reason to
always file a Rule 12 motion even if it’s mostly bogus.
 You must respond to every allegation in the complaint
 Admit
 Denials
 If you fail to deny something you have admitted it
 only exception is to damages
 Lack sufficient information to admit or deny (DKI)
 Good for D to admit it if it is true. Make sure D really does not know before
using DKI, CT says: if it is something that you should have known then a
DKI is held to be an admission!!!
 What if you don’t deny an allegation? -- RULE 8(d) – Admitted when not denied.
 General Denial: D denies each and every allegation in the complaint.
 Qualified General Denial: D denies each and every allegation in complain except D
admits X.
 Negative Pregnant
 avoid a negative pregnant by Denying each and every averment.

 Raise affirmative defenses -- Rule 8(c)

 The last part of the answer is any counterclaims you may have
 Statute of limitation
 Statute of fraud
 Res judicata
 Affirmative defense inject a new fact -- Must be pleaded in the answer
 Counterclaims that D may have against P may be pleaded in the answer. If arises out of
same T or O then it is a compulsory counterclaim and it must be pleaded or it will be
barred (cannot litigate it later!)
RESPONSE to D’s Answer – reply by P is required only where D’s answer contains a
counterclaim denominated as such.
Reply must be w/in 20 days after service of the answer.
CERTIFICATION – Rule 11
Whenever submitting paper to the CT the attorney must SIGN it.

AMENDING PLEADINGS BEFORE TRIAL --15(a)

 Pre-trial: Rule 15(a) one “matter of course” amendment granted w/no leave needed by CT if:
 w/in 20 days or
18
  before a responsive pleading is filed
 20 days passed? responsive pleading has been filed? then CT has discretion
 Early in litigation  presumption in favor of allowing amendments
 Close to trial date: CT increases use of discretion to permit or deny
 Later in litigation  less likely to grant leave “freely” b/c parties of planned
defenses, gathered w/nesses, paid experts, etc.
 CT should keep in mind the interest of the P but should also keep in mind
that litigation should end at some point (4th attempt is probably too many,
Friedman)
 Commencement of trial: entirely new set of considerations – see Fed Rule 15(b)

Amendment During & After Trial -- RULE 15(b)

Parties can imply consent to amending a pleading regarding an issue that is already before the
CT, but cannot if the issue is not before the CT already. DUE PROCESS (notice)  not Constitutional
not to give opponent notice of a pleading.
Pleadings automatically amended if no one objects.

If evidence doesn’t match the pleading once you are at trial…

Any party may motion to amend pleading as necessary to match up w/ evidence at any time.

If a party objects to the proposed amendment then the CT uses discretion
o will it promote justice?
o Ct may give objecting party a continuance so that they can gather counter evidence
and prepare a defense against new pleading/evidence, etc. (say P can gather counter-
evidence against D’s new evidence)
 If a party does not object then CT treats the pleadings as if they were amended complaints b/c
of implied/expressed consent.
 Implied consent occurs when party fails to object to the evidence and it is clear that the
evidence raises the issue (i.e. if the party has had notice and hasn’t objected, the party has
impliedly consented.)
 Due Process Limitation: meant to provide opportunity to respond to claims. Cannot introduce
w/o notice.
RELATION BACK AMENDMENT to PLEADINGS – RULE 15(C)
 MUST be out of same Transaction or Occurrence
Do not amend away the basis of SMJ. You still need SMJ over the new amendment
 Statute of Limitations policy concerns: Stale evidence concerns (memories fade and
documents get lost/ruined) and Peace of mind
o Why allow filings after time has run?
 If D knows of a claim before time runs, the D should collect evidence and won’t
have peace of mind about the claim. Therefore, the statute of limitations policies
do not apply and so the rule shouldn’t apply.

Real Interest in the Party– Rule 17

 RULE 17(a): a P cannot sue in his own name w/ joining the party for whose benefit the action is
brought unless
o To ensure D that he will not get sued again after this action by the person who really is
entitled to the relief
 RULE 17(a): you don’t dismiss an action started by a party that is not the party in real interest if
they have the ratification of the real party in interest
o Real party must authorize continuation of the action and…
o Agree to be bound by the lawsuit’s result.

19
 Joinder of Claims -- RULE 18(a): any pleader can bring claims against any opponent so long as there
is PJ, SMJ and venue, regardless of whether the claims are related or not.
 Must have proper venue and SMJ!!!
 Cannot use 18(a) unless you already have a claim against the other party.
o Ex: Must 13(g) another D before you can bring 18(a) – see below
 No common transaction/occurrence requirement  any additional claim is okay Unlike 13(g) that
has a same T or O requirement
o Example: Z sues X and Y. X uses Rule 13(g) to cross-claim against Y. X is now a
pleader against Y. X can then use Rule 18(a) to bring any additional claims against Y.
Rule 20(a) Y

Z Rule 13(g) Rule 18(a)

Rule 18(a) X cross-claim any additional claims

(same T or O) (unrelated)

Necessary and indispensable parties -- Rule 19

 P has left out some party and D wants to join (D brings this motion b/c wants to get the case
dismissed)
o Rule 19 only raised by D
o “Indispensible” is determined by CT on case-by-case basis
 If you can join them, you must. 
o If party is amenable to process and joinder will not destroy
diversity/venue, must join as a party.
 P is indispensable if – Rule 19(a):
1. If w/o absentee, the CT cannot accord complete relief among the parties
 if no then she is necessary (efficiency)
 What is a real indispensable party?  A and B own a piece of property.
They contract to sell the piece of property, and then A and B repudiate
the deal.  Buyer sues just the A for specific performance. Can the CT
force B to sell land that he jointly owns w/A?  No!  If you jointly own
something (unless it’s divisible), then both parties will have to be joined.
Examples of Indispensable Parties:
 Joint interests in property
 Joint obligors/obligees (when multiple parties agree to assume
liability in the event of some occurrence, like indemnification
agreements where two parties indemnify you jointly)
 Limited pool/multiple claimants (where interpleader comes into
play…if there’s a fixed pot of money involved, you’ll lose out if that
pot gets “poured out” to another litigant and you’re not involved in the
suit)
2. if her interest may be harmed if she is not joined
3. if her interest may subject D to multiple or inconsistent obligations

Rule 19 (b) ––If feasible party is require but can’t be joined, the CT must decide whether the
litigation should proceed or should be dismissed.
o If not feasible (not subject to process, objects to venue, will destroy
diversity) the CT must decided whether the action can proceed in the
party’s absence or be dismissed.

20
  #1 Whether the judgment in the party’s absence would
prejudice her or the existing parties.
 #2 Whether the prejudice can be reduced in shaping the
judgment
 #3 Whether a judgment in the party’s absence would be
adequate
 #4 Whether P will be deprived of an adequate remedy if the
action is dismissed.
 NOTE: Preference for dismissal if there is a state forum
where all parties may be joined in practice as well as in
theory.
o No PJ? Use 1404 (change of venue) or maybe 1406 (wrong venue, up to CT
discretion to decide whether to transfer to the proper venue) or might try to
implead (Rule 14)

Notes on Rule 19
i. Fed law controls the Q of joinder in diversity cases
ii. State law controls the nature of a person’s interest in a particular controversy or the
subject matter of the dispute in diversity cases.
iii. In diversity cases you look to state substantive law to decide if a person had an interest,
and Fed procedural law to decide if that interest makes the person indispensable.
Joinder of Parties -- Rule 20(a)
 Ps may join w/other Ps in claim if:
 Claims come from same T or O (transaction or occurance), or
 At least one Q of law/fact common to all
 May, but do not have to join  can wait and bring action separately later if you want to
 MUST BE COMPLETE DIVERSITY
 Each claim against a permissively joined D must satisfy the
jurisdictional amount. Ps with a common interest in a claim
exceeding $75K may join in asserting it even if individual share in
the interest is less than $75K.
 Separate Trials – Rule 42(b)
 CT may make order separate trials to avoid embarrassing party and prevent unduly
delay/prejudice.
 Rational: avoids possibility of inconsistent judgments on the same issue
Misjoinder of Parties – Rule 21
When RULE 20(a) is not satisfied
 RULE 21(a): proper joinder of parties requires two things:
o #1 right to relief sought by all Ps must arise out of the same T or O or series of
transactions or occurrences…and…
o #2 a common Q of law or fact as to all P must arise in the action.
 Policy of permissive joinder: trial convenience and expedite resolution of lawsuits
 Material dissimilarities between substantive allegations of the joined parties does not
automatically bring such claims outside the “same transaction” language.
Separate trials –– Rule 42(a)
 RULE 42(b): Separate trials for convenience, avoid prejudice
o This case is only two Ps and they are alleging similar actions, not really a strong
argument for jury confusion.

Cross-claim/Counter-Claim -- Rule 13
21
Cross-claim  arising out of same T or O against a co-party (same side of the “V”) – Rule 13(g)
Counter-claim  P v D, if D has a claim arising out of T or O then must bring it or lose it – Rule 13(a)
P1 D1 Rule 13(a) – cross-claims may be asserted by
13(a) counter-claim against any opposing party

D2

o compulsory counter claim -- (use it or lose it!) -- 13(a)

 compulsory counter claim has built in SMJ from the original claim!
 D can state a Compulsory CC if claim is from same T of O.
 D must raise it while they are already adversaries
 And if the CC does not requiring adding another party whom the ct has no jurisdiction over.
 more efficient for Cts and avoids inconsistency
o permissive counter claim -- 13(b)
 allows asserting claims against opponent (D) that DO NOT ARISE OUT OF THE SAME T
or O (can bring them later in a different suit if you want to)
 No built in SMJ  must prove it when assert the claim
o Omitted Counterclaims -- RULE 13(f):
o “When pleader fails to set up a counterclaim thru oversight, inadvertence or excusable neglect,
or when justice requires, he may by leave of CT set up the counterclaim by amendment.”
o Amendments under RULE 13(f) do not relate back to the original pleadings. (Stoner case)
 If you have to amend and the statute of limitation has run then you are out of
luck.
o Rule 13(f) and Rule 15(c) are mutually exclusive!!!
o cross-claims – permissive -- Rule 13(g)
 must arise from the same T+O of the original case 
 same side of the “V”
 not compulsory!
THIRD-PARTY PRACTICE – Rule 14 -- IMPLEADER
 Ex: D brings in a 3rd party as a P only when 3rd party contributed to liability.
 Any D may implead any other 3rd party defendant (original defendant) so long as they may
owe them part/all of liability.
 D can implead more than one additional D2. Can implead as many as he wants if rules are
met if Rule 20(a).
P1 D1
Use Rule 14(a) b/c D1 says D2 owes part/all of what D1 might owe P1
D2

SMJ (supplemental?, diversity J?)

i. A non-diverse third-party does not ruin diversity!!!
 that would allow Ds to bring in non-diverse third-parties just to
destroy diversity and beat the system
i. But need own indie SMJ – can usually get supplemental 1367(A)
 Or if the $ is met and are diverse parties, can get diversity.
 Or you may have a fed claim.
 PJ -- MUST have Proper PJ over the new guy
 Venue -- don’t have to prove proper venue
22
  Raise w/in 10 days to implead w/o leave of ct
 CT may refuse to add or may insist on separating main suit and impleader suit if:
i. Undue delay in seeking impleader
ii. Complicates main issues
iii. Potential P prejudice from sympathetic third party D.
Third party D may:
 Implead further parties not already involved – using 14(a)
 File counterclaims against third party P – using 13(a)
 File cross claims against other third party D – using 13(a)
 May assert claims against the original P if “same T or O” as P’s original claim (and
vice versa): (Rule 14(a)
2. Original P may assert any claim against the 3 rd party D arising out of same T and O.- so long as
has independent jurisdiction – NO SUPPLEMENTAL juris available.
3. If counterclaimed against, the original P may implead a third party per 14(b)

INTERVENTION – Rule 24 (outsiders butting into existing suit -- even is no one else wants him there!)
1. Intervention of Right
 If timely application for intervention
(1) when a statute gives unconditional right to intervene or
(2) shall be permitted to intervene when…
 applicant claims interest (property or transaction) of suit +
 and no intervention may impair or impede his interest;
 and interest is not adequately represented by existing parties
2. Permissive Intervention
 If timely application for intervention
i. statute gives conditional right to intervene
ii. claim or defense and main action have a Q of law or fact in common;
 when party to action relies for claim or defense on a statute, regulation or
executive order administered by Fed/state then officer/agency (if timely
application) may be permitted to intervene. (discretionary!!!)
 CT has discretion  will intervention unduly delay or prejudice the
adjudication of rights of the original parties?
( c) Procedure – by motion (following Rule 5), accompanied by pleading setting
forth the claim or defense;
 if constitutionality of act of Congress CT will notify Attny Gen of US
 if constitutionality of statute affecting public interest CT will notify Attny
Gen of the State
 Fed Q  no problem
 Diversity  if person intervening is diverse = allowed
o If person intervening is not diverse =
 Supplemental Jurisdiction 
o Intervening P not diverse?  no SJ!!!  1367(b) bars SJ over claims by persons
“seeking to intervene as Ps under Rule 24 when exercising SJ would be
inconsistent w/ 1332 (divrs)”
 Inconsistent w/ 1332 = claim of NY cit v. NY cit, etc. (would destroy
complete diversity requirement)
 Exxon  SJ cannot support J over case based on minimal diversity!
o You cannot use SJ if the person is intervening as a P or intervening to defend
against a claim by the P.

23
 o What about if someone intervening for another purpose? – ie, defending against
a third party claim. Section 1367(b) doesn’t speak to that.  CT can still use
discretion not to give SJ under 1367(c) if they want to.
o Permissive Intervention probably will not fit under 1367(a).
o Some cases say that when someone intervenes to challenge a confidentiality order
– like a newspaper there’s SJ.
 Intervention Denied? CT can allow you to file a “friend of the CT” brief.

CLASS ACTIONS – Rule 23

 Basic principle of class action – should not alter, magnify or reduce substantive entitlements of
any members of class, supposed to get rid of transactional obstacles ($cost$) that would otherwise
prevent suit.
 Might not be worth suing based on individual claim.
 More leverage w/ CA then individual suit.
 rule drafted w/ an eye to the const’l issues
o adequacy of representation
o notice element (23b3s)
1. RULE 23(a) four prerequisites to bringing a class action:
1) numerosity – must have too many for joinder
2) commonality – Qs of law or fact common to class (at least two Qs are necessary)
3) typicality – claims/defenses of the representative must be typical of the class
a. if the claim of the rep is mooted during the trial it does not moot the claim of
the class
 Ex: rep released from prison does not moot the CA of the prisoners
challenging the parole procedure.
b. look at the motive of the class representative (make sure that interest of the
rep is the same as the class.)  difficult to pick a class rep. –
i. you need to pick someone who is typical of the class at the beginning
and Q at the end of whether he adequately represented the class
interest!
4) adequacy of representation – will class reps fairly and adequately protect interests
of class (adequacy of attorney)  Is the lawyer up to the job?
a. Vigorous prosecutions
b. Honesty
c. Conscientious pursuit of the claim
d. Can have multiple reps
e. Can have a D class
f. CA member can ask CT to have a different lawyer represent the CA
g. Challenging Representation/Bound by CA: If you’re not an active
participant in the class litigation, you can collaterally attack that litigation to
see if you’re really bound by the former class because you were not
adequately represented by it.  
2. Types of Class Actions: if all 23(a) OK  IF ALSO meet one of the 1, 2 or 3:
1. Rule 23(b)(1): prosecution of separate actions would create risk of 23(b)(1)
(A), incompatible standards of conduct (voting rights dispute)
 Separate actions by class members would create a risk of
inconsistent results or would impair the interest of other absent
members of the class

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  Mandatory CA -- no right to opt out
o CT 1 might rule in case A that X must stop building
o CT 2 might rule in case B that X cannot stop building
23(b)(1)(B): interpleader “super-sized” (suing from a fund, all
later suits get no $$$)

 Mandatory CA -- no right to opt out

 EX: Claimants of insurance policy would overdraw policy–
provides way to assure similar parties treated alike (so one
party doesn’t get all the $ and another party gets nothing.)
2. RULE 23(b)(2): a class asking for injunctive relief.  (Civil rights, etc. –
injunctions usually)
1. D acted or refused to act on grounds applicable to the class and
injunctive/declaratory relief is appropriate for the class as a whole.
2. Notice: CT may require the P to give notice
3. If a class is asking for injunctive and damages then might use rule 23(b)
(2) and 23(b)(3)
3. RULE 23(b)(3): Question of law or fact common to:
 Class interests predominate individual interests
 CA is superior way to deal w/ suit (related to 23(1)(a) –
impracticably to join?)
CT determines these factors by looking at (looking at efficiency):
A. interest of members of class in individually controlling the
prosecution/defense of separate actions;
B. extent and nature of any litigation concerning the controversy
which is already commenced
C. desirability or not of concentrating the litigation of the claims in
the particular forum
D. difficulties likely in manageability of a class action
 Notice: P must pay for the notice to the class!!!
 Can opt out of (b)(3) CA!
Why opt out of a CA?
 You might not think that the representation was good enough.
 You could opt out and not sue.
 Do members of (b)(2) and (b)(3) have the right to opt out? Not
specifically  they cannot make as many decisions and so
notice is not as important.
4. Don’t want to use (b)(3) unless it is your only option b/c it is more expensive

Alternative to CA
 Bring a test case.
 If P wins, some jurisdictions would preclude the D from re-litigating the issue of liability and so
other Ps could get summary judgment on the issue under the doctrine of res judicata.
 Problems w/ the test case approach: if D wins, other Ps are not bound
o If stakes are small, often are in consumer cases, other Ps won’t be able to finance
litigation even though they have the benefit of a favorable finding.

Due Process  you are not bound by rulings when you are not notified, etc. SMJ 
 Fed Q  no problem

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  Diversity  diversity among named Ps and Ds is enough and total damages just has to meet the
$75K
 So long as the named parties are diverse then it is okay, you do not have complete
diversity.
 P can pretty much sue anywhere that you want to – so you would want to choose
a place that is notorious for giving high awards. THEN  CAFA
Class Action + Personal Jurisdiction
 You are an unnamed P in a CA – you do not have to defend yourself – you don’t have to
pay a judgment – however, outcome may still cut off your ability to sue
o Sup Ct Ruled: It is not necessary to satisfy the minimum contacts standard
normally applied to out-of-state Ds to obtain a judgment binding out-of-state
absent P class members. (The Rules Get Bent to Accommodate CA Suits)
CA + Venue
 Venue is treated the same as in other situations EXCEPT…
 Residence of only named parties is looked at and do not look at the absent class
members.
CA + Erie
 Use Rule 23, not the state rule.

CERTIFICATION -- RULE 23(c)(1) class action certification

 23(c)(1)(a) decision must be made as early as practicable whether to certify
Requirement for Certification:
1. Must be able to identify members of the CA w/precision
2. Class Rep must be member of the class
3. Must be question of law or fact common to the class
4. Claims/defenses must be typical of the claims/defenses of the class
5. The Rep. will fairly/adequately protect the interests of the class
NOTICE -- 23(c)(2)(a)
 CT may direct appropriate notice to 23(b)(1)
 Injunctive Torts -- CT may direct appropriate notice to 23(b)(2)
JUDGMENT -- 23(c)(3) Who Does Judgment Cover?
 23(b)(1) and 23(b)(2) – those whom CT finds part of class
SUBDIVISION of CLASSES -- 23(c)(4)(b)
 interests of class are consistent?
o CT can break the class into two classes, or…
o One class broken into two subclasses (subclasses where different interests –
joined where the issues are the same)
SETTLEMENT -- RULE 23(e)
 23(e)(1)(a)  CT guard against collusion or rep running out of steam
o CT must approve settlements, dismissals, etc.
 Notice of Proposed Settlement must be given to all members of the class in a manner
directed by the CT – Rule 23(e)
 Factors to Consider in Deciding if Settlement if Fair and Reasonable
o Amount in proportion to amount that could be recovered if case went forward.
o likelihood of P’s success
o whether people object
o Attorney’s fees in proportion to class recovery
APPEALS -- Rule 23(f)

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  CT of appeals may in its discretion permit an appeal from either grant or denial of class
cert. if application made w/in 10 days after entry of the order

DISPOSITION OF CASES W/O TRIAL

 Default Judgments
 Motions for Judgments on the pleadings under Rule 12(c)
 Dismissal for failure to prosecute
 Dismissal for failure to comply w/ discovery order
 Rule 12(b) motions

SUMMARY JUDGMENT – Rule 56 ––Determines whether there are facts to try. Is there any
dispute to begin with? Rule 12( c) becomes
 SJ  avoids the delay and expense of trying non-issues.
 SJ are entitled to full res judicata effect.
i. D moves for SJ
ii. P must then respond with admissible evidence (pleading is not evidence and not useful here) that
tends to support claim so it won’t get SJ – Rule 56(e) –– need discovery, disclosure materials on
file and any affidavits to support your claims
iii. CT looks at evidence – no reason for claim to go to jury if only an irrational jury could find for
non-moving party.
 Standard -- 3rd sentence in 56(c)
1. no dispute on a material issue of fact?  You get SJ.
i. If pleadings, depositions, answers to interrogatories, admissions on file, affidavits
all show that there is no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law
ii. Under Rule 56 (e)(2) if a summary judgment is properly made and supported (as
Conehead has done) an opposing party (PLA) may not rely merely on allegations
or denials in its own pleading; rather its response must by affidavits… set out
specific facts showing a genuine issue for trial and if the opposing (PLA) does
not respond, summary judgment should, id appropriate, be entered against the
party

 Rules of summary judgment

2. Rarely granted for P
3. CT can never resolve a dispute of fact on summary judgment
4. He said/she said  direct statements go to trial
 INFERENCE (Rule 56)
o Inferences must be viewed in the light most favorable to the party
opposing the motion (RULE 56)
o Implausible inference? must back up w/ more persuasive evidence.
 Pleadings are not evidence!! (not a defense against motion for summary judgment)
 If an opposing party sought motion judgment on the pleading under rule 12 (c), it becomes
Rule 56

DISCOVERY -- Rule 26 (extremely broad standard that can be limited by CT at its discretion) Goals of
Party Seeking Discovery
 Gather information to help your case
 Gather information about adversary's case to avoid surprise
 Narrow the issues
 Obtain necessary admissions to get summary judgment

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Party Resisting Discovery
 W/hold information that may be damaging to you (and avoid summary judgment.)
 Give information about the strength of your case (encourage settlement)
 Narrow the issues but not your issues.
CT's interest
 Does not want to decide discovery motions
 Wants judicial process to run smoothly
Society’s Interest
 Limit the costs of the litigation
 Discovery is expensive and intrusive so we don’t want people to get the privilege if they do not
have a suit filed in CT.
GENERAL RULE of Discovery – Rule 26(b)(1): Parties may obtain discovery regarding any matter:
 not privileged,
 that is relevant to the claim/defense/SM of the pending action.
 NOTE: does not have to be admissible evidence, can be anything that is reasonably calculated to
lead to the discovery of admissible evidence.

BASIC DISCOVERY TOOLS: Automatic Disclosure  26(a)  hand over at the beginning
 Protection Orders  Rule 26(c) (abuse of discovery)
 Interrogatories  Rule 33  basic factual Qs to put the bones of the case together
 Request for production of documents  Rule 34  documents and “tangible” things
 Oral Depositions  Rule 30  put flesh on the bones of the suit, fill in the details (usually at
the end of discovery)
 Request for Admission  Rule 36 (treated as admitted if not denied or specified why cannot
admit/deny)
 Duty to Amend  Rule 26(e) (if your knowledge changes you have a duty to update the other
party

Limits on Discovery (CT has very broad discretion to limit):

 CT has discretion to limit what would otherwise be discoverable:
o P requests something from D
o D does not want to give it to P
o D asks CT for “protective” order -- Rule 26(c)
o CT has discretion to grant or not – Rule 26(b)(1) – “protect from annoyance,
embarrassment, oppression or undue burden/expense”
 CT will look at circumstances of the case -- taking into acct:
 the needs of the case,
 the amount in controversy,
 the parties’ resources,
 the importance of the issues at stake in the lit,
 and the importance of the proposed disc in resolving issues.
 Attorney-client privilege
 Attorney Product/Work Product: “trial preparation materials” (whether prepared by attorney,
the party or someone for the party) are discoverable ONLY when:
 pty seeking discovery has substantial need of the materials AND that the pty is
unable w/o undue hardship to obtain the substantial equivalent of the materials by
other means
o Standard Used To Determine: Rule 26(b)(3)
 Attorney’s mental impressions, conclusions, opinions, or legal theories are NEVER
OPEN TO DISCOVERY.
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 o WHY: attorneys would not keep written records and that does not improve
the quality of litigation.
o
“Automatic”/Required disclosures – rule 26(a)(1)  Even though nobody asks you for it
 Initial required disclosures
o Witnesses (name/address) you expect to call or will call if necessary
o Copies/descriptions of documents or things in disclosing party’s possession/control that
may use to support claims/defenses
o Computation of damages/materials on which damages are based
o Forego: parties can agree to forego the auto disclosure – Rule 26(a)(1)
 experts
o reports, name, addresses, qualifications, etc.
o report on their opinions and theories -- Rule 26(a)(2)

Deposition – Rule 30 – get witness testimony, under oath, untainted by their attorney
 Available from anyone – parties and non-parties – Rule 30(a)
 All parties may pose Qs to the deponent.
 Limited to 10 deposition w/o leave of CT
 One day of seven hours unless otherwise specified by CT
 Benefit:
o Best way of obtaining pre-trial evidence from the witness
o Promotes settlement (people are scared to get deposed)
o Adversary’s attorney can only object on the record Rule 30(c)
 Unless attempting to violate a privilege (attorney-client) Rule 30(d)(1)
o is their witness a good witness?
 Limit 10 w/o CT order
 Drawback: Very expensive
 Lots of ways to record deposition – phone, okay -- (some more costly than others) 30(b)(7)
 you can depose parties or non-parties
o a party Rule 30(b) and notice to all parties in the action of time/place/etc.
o a non-party must be subpoenaed (notice not enough) or he does not have to show up
Rule 45
o does not have to be specifically ID person in corp or business, leave it up to them, ok
Rule 30(b)(6)
 When Taken: usually after interrogatories, b/c want to have as much info to use when
preparing. Flush out the details, not assemble the bones.
o Counsel for deponent can cross-examine after examiner is done
 To Perpetuate Testimony: if someone is going to space, about to die, etc. you can get the CT to
allow you to take their deposition before the suit begins. – Rule 27

Deposition of Witnesses (Written Qs) – Rule 31

 Designed for witnesses far away
 All parties pose Q to deponent
 No more than 10 w/o leave of CT
Who Uses Depositions At Trial – Rule 32
 To contradict/Impeach testimony -- 32(a)(1)
 Adversary can use party/non-party – for any purpose -- 32 (a)(2)
 Adversary may use his own deposition, used by the other party -- 32 (a)(4)
 If deponent is unavailable at trial -- 32 (a)(3)

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  Objections To: party can object to use on the ground of form and of relevance -- 32 (d)(3)(a)

Interrogatories – Rule 33
 Can get from any party (a non-party witness is not required to respond)
 Available w/o leave of CT (limit to 25)
 Party must respond with facts she knows herself and facts that are available to her.
 Drafted/answered by counsel for each side
 Less expensive method of discovery, but often not very useful for anything but factual info
(dates/names/addresses)
 written question answered in writing under oath (25 Qs)
o you have 30 days to answer them – 33(b)(1) Answers and Objections
o must be signed by person making them
 can only be sent to parties, not to non-parties
 often evasive, shaded to help the client
 Identification: difficult to avoid answering, regarding specific info
 Contention: tells the other party to state the basis for a contention
 Substantive: asks for all information relating to an event or date

Documents: Request to produce – rule 34

o Documents – receipts, bank statements, diaries, etc.
o Tangible things -- a car that was in an accident, urine sample alleged to have tested
positive for drugs
 Usually comes w/ “definitions” header detailing exactly what is meant by each term in request
 Opponent only has to hand over the exact documents requested,
 Avoidance: party will construe very narrowly
 Privileged: Documents between client/attorney and attorney work product (notes from
investigation)
 Can’t mess up documents to confuse adversary (deliver them all in a pile – have to give as you
store)
 Protective Order – Rule 26(c) from embarrassment, harassing, undue burden/expense
 you can use to info from parties or non-parties
o but non-parties have to issued a subpoena

Medical exam – rule 35

 you need a CT order
 as to a party or somebody w/in the parties custody or control
o does not include employees
o applies to children

Request for admission – rule 36

 only for parties, not non-parties
 saves time (documents must be authenticated)
 matters that are not controversial
 matters considered admitted unless denied or explained why cannot admit/deny
o party may be asked to admit matters that are genuine issues for trial
 force other party to admit or deny any discoverable evidence
o you have 30 days to deny or you have admitted (failure to respond is admission)
o if denied and later proven in CT, proving party can get attorney’s fees incurred in proving
(rarely get them though) – 37(c)(2)

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DISCOVERY SANCTIONS – Rule 37
 It is up to the party requesting to push the non-moving party to action via sanctions:
 CONSIDER FIRST: is it important or marginal? Costly/takes time to get sanction. Only go for if
really important.
o Apply for an order compelling discovery 37(a)
 Party Requesting MUST SHOW: “good faith attempted to confer with party failing to
make discovery in effort to secure the info or material w/o CT action”
 Interest in having the parties work it out for themselves – Rule 37(a)(2)(b)
 Entitled to attorney’s fees if win unless the CT finds the other side is justified in resisting or
circumstances make the award unjust (rarely get the fees in practice) – Rule 37(a)(4)
o If the other side still doesn’t comply? go for sanctions 37(b)
 CT has wide discretion to apply sanctions
o If party not cooperating has a pending protective order, failure to act may be excused until there is a
decision 37(d)

PRE-TRIAL CONFERENCES (Planning for discovery  Scheduling  Pre-trial conference)

 Tell each other and CT what will happen at trial  interest in reducing surprise/delay at trial
 Plan/schedule/Set deadlines so cases get moving
 By time of trial  final pre-trial conferences are way for parties to let CT and each other know what
will happen at trial (avoiding surprise)
 Promote settlement -- so no one party is forced to raise settlement (don’t want to seem like they
have a weak case)

Planning For Discovery Conference – Rule 26(f)

 to make/arrange mandatory disclosures
 to develop a discovery plan
 change any deadlines, get extensions, increase number of depositions, etc.
 The plan from this meeting must be submitted w/in 14 days
 Conference must be held 21 days before scheduling meeting

Scheduling & Planning Meeting (based on report from Rule 26(f) conference -- Rule 16(b)
 Schedule should not be modified after the meeting w/o good cause and by leave of the district
judge.
 Schedule covers time limits on:
o Joinder of parties
o Filing motions
o Discovery
o Modifications to times for disclosures/extent of permissible discovery
o Date/time of pre-trial conference
o Any other matters appropriate in circumstances of the case
Pre-trial Conferences (any) -- Rule 16(c)
1. Formulation/simplification of issues (elimination of frivolous issues)
1. Necessity/desirability of amendments
2. Possibility of admissions of fact/documents, authenticity of documents, etc.
3. Avoidance of unnecessary proof
4. Timing of summary adjudication (Rule 56)
5. Scheduling of discovery
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 6. ID of witnesses and documents
7. Advisability of referring matters to a magistrate judge
8. Settlement
9. Form/substance of pre-trial order
10. Disposition of pending motions
11. Need for adopting special procedures (CT has discretion if no applicable Rule)
12. Order for separate trial (pursuant to Rule 42(b)
13. Order directing party to present evidence
14. Setting reasonable time for presenting evidence
15. Any other matters that facilitate just, speedy, inexpensive disposition of action
 At least one attorney for each party at pre-trial conference shall have authority to make
admissions regarding all matters that may reasonably come up (someone on hand who can
establish was is admitted, etc.)
 CT may require a party/rep be present/reasonably available via phone, etc. (might require in
person)
 26(a)(3): CT requires disclosure of witness identities and documents or other exhibits at
trial 30 days in advance.

Res Judicata –– Once a final judgment on the merits has been rendered on a particular cause of
action, the claimant is barred by res judicata (also called claim preclusion) from asserting the same cause
of action in a later lawsuit.
Bar and Merger:
o Bar  when D wins the first action, P is barred from litigating Qs that were or, to some
extent, could have been litigated.
o Merger  When P wins the first action, P’s claim on which P sued is merged into the
judgment thereafter P can sue on the judgment only.
 For claim preclusion to operate
1. Same claim (cause of action)
2. Same parties or parties in privity with them
3. The first case must have terminated in a valid final judgment reached for certain
reasons
o In the past, the court said it has to be on merit but it has disperse with this requirement
o If its on the merit, then it is entitled to full Res Judicata effect
o A judgment is entitled to Res Judicata effect if though a judgment is pending (appeal). 
Same Cause of Action -- issue of splitting claims
i. Think about the policies underlying res judicata.
ii. Would it make sense to try the claims in one case?
iii. Would it save expense and time?
iv. Are there lots of facts in common? 
Policies Underlying Res Judicata

The parties have an interest in avoiding burden of re-litigation

The ct has an interest in avoiding the waste of judicial resources  foster economy in litigation
 Avoid inconsistent results, which undermines respect for the judicial system
 Rational Behind It
o Claim  flexible syst w/many opps to amend, bring in parties, etc.: full/fair opportunity
to be heard  claim extinguished and replaced by judgment.
 Encourages diligence in the first trial.
o Motion for Summary Judgment given full RJ effect, treated as if there had been a trial.

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 o In a K case, you have to assert all breaches -- serves policies of res judicata
o It does not matter that one claim is in law and the other in equity. One can still bar
the other.
o It doesn't matter if one claim is based on state law and the second is based on federal
law. One can still bar the other.
o When a federal court hears a federal claim and declines to hear the claim arising
under state law under supplemental jurisdiction is not precluded from bringing the second
claim in state court.
o If plaintiff brings a state claim in state court and can't bring the corresponding federal
claim in state court, the plaintiff is not precluded from bringing the federal claim in federal
court
 
Issue Preclusion; Partial Res Judicata; Collateral Estoppel
o Under the circs will a party be precluded from litigating an issue even though the cause of action
or the parties or both are different?  Qs/issues actually litigated and actually determined can’t be
re-litigated later in a case brought on a different claim.
o If was not a party in first case then can’t be precluded b/c of due process
o Only bars the issues actually raised in first action. If case #2 is different events the
similar issues that were decided in case #1 will be barred.

TEST
1. Case #1 ended in valid final judgment on the merits
2. issue must be raised, actually litigated and actually decided
 ASK: what was decided in the first case?
 If Ann sues Bob on A and B but the CT finds for Ann on A but does not decide B, then A is
barred but B is not barred in case #2.
 EXAMPLE (Cromwell): 1st case: P’s bonds deemed void due to fraud. P did
not litigate that he was a bona fide purchaser. 2nd case: diff P, same D. CT: P
not barred from proving he was a bona fide purchaser b/c that was not an
issue litigated in the 1st case.
 Default/consent judgment is usually not okay for C.E.
Hypo:
 P sues D for breach of K and D defends on 2 grounds: lack of consideration and no valid
acceptance. Ct finds there was consideration but enters judgment on the ground that there was no
valid acceptance. P sues in quasi-K. P tries to estop D from arguing that there was no consideration
(benefit flowing to D). What result? May the loser in a case use the favorable findings therein
to collaterally estop its opponent in a subsequent case between the two.
  Issue Preclusion requirements:
 The decision must have been essential to the judgment in the first case ( the loser cannot take
advantage of the favorable finding to estop its opponent -- answer to the above question)
 Dicta are not important, so courts don't work hard to get it right.
 Suppose a decision is wrong and you think a court make a mistake? What do you do? Can
you appeal on that decision even though you won? No, you can't appeal on that case.
 The issue must have been actually litigated.
 The issue must have been actually decided.
 How do you find out if the issue was actually litigated?
 Look at the transcripts
 What if the plaintiff won by default? As plaintiff litigated the issue?

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  No, b/c the issue have not been litigated-- no issue preclusion on default
judgment.
Who is Bound by Res Judicata Judgment?
 Person in privity
 Person that lose the case 
Mutuality:
 The favorable preclusive effects of a judgment are only available to a person who would have
been bound by any unfavorable preclusive effects.  Non-Mutual Collateral Estoppel:
Allows C. E. by a party who was not a party to the first case.
Defensive Non-Mutual Collateral Estoppel = Party seeking to estop is a D in case #2, but not party in
#1.
 Principle: Where a Δ in the second action seeks to assert estoppel against the π. Estoppel is
being used as a "sheild"
 Most Cts allow
 Promotes efficiency and less litigation; encourages a party to join all Δ's in one suit (If you
lose against A, and then you sue B, B can preclude you so you might as well join B in the
first action)
 Not unjust to hold a π to facts that were made in the first suit
 Example: A and B in a car crash; A was driving C's car
o 1st action: A v. B; B wins because A was contributorily negligent
o 2nd action: A v. C;
o C asserts collateral estoppel seeking to estop A from litigating the issue of his negligence
because it was already proved in A v. B that A was negligent
Offensive Non-Mutual Issue Preclusion/ C.E. = New P in #2 seeks to estop old D from litigating issue.
Principle: Estoppel is being used as a "sword." (Ex: Preclude old D from litigating an issue that D lost in
the last action)

ALTERNATIVE DISPUTE RESOLUTION

A. A set of techniques allowing us to go outside the CTs to resolve disputes
Ex. Credit card contract agreements stipulate disputes will go to arbitration (can’t get class
actions in arbitration)
B. Avoid the conventional system
1. This can have negative effects (ex. If a case needs discovery to win)
2. Costs less than a full-blown trial

DURING-TRIAL & POST-TRIAL MOTIONS

Judgment as a matter of law -- Rule 50(a)(1) -- JMOL (same as old “directed verdict”)
 The major procedural device to test the sufficiency of the evidence
 If, considering the evidence in light most favorable to the non-moving party, a reasonable jury
could not reach a contrary verdict then the CT may grant JMOL.
 50(a)(1): only if reasonable people could not disagree on the result = JMOL
o The judge decides whether there is a Q of fact for the jury to decide
 Before jury verdict  directed verdict
 After jury verdict  J n.o.v (judgment not withstanding the verdict)
 50(a)(2): specify the judgment sought and why the moving party is entitled to it
o other party can request to re-open the case and cure the defect
o this judgment gives the nonmoving party notice (ie, why moving party is entitled to
JMOL)

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  Moving party motions for JMOL at the close of the non-moving party’s evidence.
 Inferences must be viewed in the light most favorable to the party opposing the motion (like
RULE 56 -- SJ)
 If the judge lets the case go to the jury the moving party can move again for a renewed JMOL
within 10 days after entry of judgment
 (diff from summary judgment because SJ is pre-trial motion but they have the same standard)

J.N.O.V. (judgment not withstanding the verdict)

 renewed (delayed) motion for directed verdict (see above)
 should be granted if the opponent’s evidence is so weak that no reasonable jury could have
reached a verdict for him.
 Moving party MUST make motion for directed verdict at the close of non-moving
party’s evidence in order to get a J.N.O.V. – Rule 50(b)
 J.N.O.V. = Judge telling jury that they acted irrationally
 Why not just grants the judgment as a matter of law motion then?
o Debatable what is sufficient evidence to go to a jury – judges will disagree –
subjective standard.
o If doesn’t go to the jury and it is appealed and reversed then there will have to be
an entire new trial
o If the judge waits until after the jury gives a verdict before J.N.O.V. then if his
decision is reversed on appeal there does not have to be an entire new trial 
judge just has to enter the jury’s decision.
o Need to retry case is avoided by waiting until the jury has a verdict to decide
whether the case is jury-worthy.
 Legal fiction: way of getting around 7th Amendment to Constitution – no fact tried by jury
shall be reexamined in CT”
 WHY  second reason, moving party must explain WHY there should be a directed verdict.
Doing so BEFORE goes to the jury allows time for the CT/non-moving party to offer more
evidence to cure the defect.
o If lack of evidence on non-moving party’s part was mistake then the party can
cure defect.
o If lack of evidence was b/c no evidence to give then the party does not deserve
the jury hearing.

MOTION FOR A NEW TRIAL – Rule 59

WHEN:
i. If the jury acted improperly
ii. If the judge made an error in admitting or withholding evidence
1. Harmless Error -- Rule 61: if error makes not difference, CT will not
grant a new trial
iii. If the verdict is against the weight of the evidence
o federal standard: is when a jury verdict shocks the conscience
o NY standard: is when the jury verdict materially deviates
 guard against runaway juries -- no constitutional right to disregard the law in reaching a verdict
 may be granted on all or some of the issues
 must be filed no later than 10 days after the judgment

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  CT can open up judgment and take additional information. (see 59(a)).
 Motion for a new trial may be based on affidavits
 judge can set aside a verdict and order a new trial (on its own initiative)
o Thirteenth Juror? Less stringent standard than directed verdict and JNOV
 Defense: goes to another jury so the judge isn’t making the decision, just giving
another jury
o Winning Party Appeal: party cannot usually appeal the judge’s decision to grant a new
trial b/c there was no final judgment which is necessary to appeal in federal CT.
Sometimes allow interlocutory appeal from the grant of a new trial.

Remitteur: If the damages shock the conscious, then the CT may force the party to accept the lower
judgment or be subjected to a new trial.

Relief from Judgment or Order: Rule 60

Clerical Mistakes – 60(A):
o CT at anytime of own initiative or
o on motion of any party and
o after such notice as the CT order.
Rule 60(b):
 Cts are more liberal in reopening default judgment than other kind
 Fraud by anyone than the adverse party –– e.g., fraud by a paty’s own lawyer,
codefendant, or 3rd party witness does not come within (3)
 You can go beyond a year (as per 60 (c)(1)) if you have fraud on the court 60 (d)
Rule 60 (b)(4)
 Can be used if court issued a judgment w/out SMJ
 One year limit does not apply (applies only to b(1)(2)(3)
 You can also bring a collateral attack under 60(d)
 Judges lack discretion when it comes to void judgment –– they must reopen void
judgment
Rule 60(b)(6): can be used in three situation
1. When a party fails to comply with a settlement agreement
2. For fraud cases that don’t fit within (3)(fraud by an adverse party) –– by party’s
lawyer, codefendant, or a party’s witness
3. When the losing party fails to receive notice of the entry judgment in time to file
an appeal

APPEALS
Trad. Rule –– No appeal until final judgment on the merits
 §1291 -- a final decision grants SMJ to an appellate CT
 Rule 23(f) allows immediate appeal of the District CT’s ruling
Exceptions:
1. collateral order doctrine: in COHEN, the DC refused to apply a NJ statute demanding the
posting of a bond by the pltf to cover D’s costs if D won; this decision was found to be
appealable b/c it was “too important to be denied review and too independent of the cause itself to
require that appellate consideration be deferred until the whole case is adjudicated” (if the dfdt
won the case its statutory right would already have been violated without chance of appellate
review);

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 a. agreement was not found to be immediately appealable and the appellant was forced to
try its (expensive) case before appeal
i. requirements:
1. final decision on an issue (not final judgment)
2. decision was not merged into final judgment (it’s collateral)
3. issue appealed must be more important than the policies underlying the
final judgment rule
4. needs to be a serious and unsettled question
5. issue cannot be reviewable at final judgment
2. §1292(b) –– Interlocutory decisions
Requirement:
a. DC must certify the question
a. CTs do not like to grant interlocutory appeals b/c they do not want to be
reversed –– not only that the Ct of Appeals has discretion to hear the case or not
(another hurdle to overcome even if the DC certify the question)
b. the question involved must be one of law
c. it must be controlling
a. Must be a controlling Q of law (what will decide the case, not something that will
not really decide it –– the outcome of the trial court decision must be different
i. If you win on appeal A and still lose case b/c of B then not controlling Q
1. B/C of so many requirements few litigants get to use this statute
d. there must be substantial ground for difference of opinion re the issue
e. an immediate appeal must “materially advance the ultimate termination of the litigation”
a. typically allowed only in bigger, more expensive cases b/c they cost more and
take up more time (ordinary personal injury or wrongful death suits usually do
not qualify – CARDWELL)

Mandamus §1651 All Writs Act

 Usual application is to enforce the right to a jury trial
 Requirements
1. only “to confine an inferior CT to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is its duty to do
so”
2. only in “exceptional circumstances amounting to judicial usurpation of
power”
3. burden on person asking for it: “clear and indisputable”
4. petitioner will be damaged or prejudiced in a way not correctable on appeal
5. DC’s CT order is clearly erroneous as a matter of law
6. DC’s error is an oft-repeated error or it manifests a persistent disregard of
FRCP
7. DC’s order raises new and important problems for issues of law of first
impression
o Directed at the CT – action is brought against the judge
o Focus is on the misbehavior of the judge

Mechanics of appealing
 You always need appellate SMJ
 A final decision or collateral source exception per §1291
 interlocutory allowance per §1292
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  23(f) class cert appeal or
 54(b) partial judgment AND
 Proper notice
 filed w/i 30 days (other litigants have 14 days after original appeal to
cross-appeal)
o unless appellant is US or action is Mandamus
 must be specific as to the order or judgment appealed from and the parties
to the appeal
 original case/judgment is stayed or enforced
 pretrial conference (not always)
 oral argument
 decision

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