I.

Personal Jurisdiction – power to bind Defendant

a. Historically Territorial
i. Presence of defendant or defendant’s agent appointed when receive process
1. Burnham upheld in modern times, service of process physically in state is basic meaning
of contact, everything else is substitute . Some say traditional, some say it is fair play so
should follow
ii. Presence of defendant’s property
1. Pennoyer v. Neff – fed constitution limits state courts : States have exclusive jurisdiction
over persons and property within territory, No power over persons and property outside
iii. Status cases of marriage
iv. Corporations can operate across state boundaries, is not present bc intangible
v. Voluntarily appearance: IMPLIED CONSENT, agent registrar is served then serves you
1. Hess v. Pawloski drive across state lines
b. In personam jurisdiction - statutory
i. If in federal court CHECK RULE 4K , federal equivalent of long arm statute
1. Under 4k1a can assert same jurisdiction as state court – service is valid in fed court if
valid in state, can sue anywhere if they would’ve been subject to general jurisdiction in
that state
ii. State law: first ask is it ok under long arm statute?
1. unenumerated meaning allow everything under constitution
2. ENUMERATED different requirements less than constitution, never more than
constitution.
a. Who does it apply to corp/individual, what kind of cases (committed in that
state/upon citizen)
3. May require appoint agent of service within state (Hess)
4. Might just assert PJ over class on non-residents, don’t need agent appt.
iii. Need state and constitution to agree or else NO PJ: Pennoyer, Oregon said serve by publication
was PJ but Const said not due process
c. in personam – constitutional (cannot violate due process) JUST NEED ONE OF THESE 3 TO ESTABLISH
constitutional, but also need statute
i. Specific jurisdiction – claim is RELATED to contact, did they benefit from laws of state?
1. Continuous and systematic contact with forum state or casual/isolated but related to
contact AND BENEFITED FROM THE LAWS OF THE FORUM ESTATE so that PJ does not
offend traditional notions of fair play and substantial justice for due process (int’l shoe)
2. 1. Purposeful availment contact : need more FORESEEABILITY, defendant purposefully
avail to forum state
a. Asahi – O’Connor need awareness of stream of commerce product ending up in
state PLUS SOMETHING ELSE PURPOSEFUL – what defendant would argue:
Marketing/distribute in state, create/design product for state, direct sales
i. plaintiff would argue Brennan stream of commerce is foreseeable enough
ii. Plaintiff or Defendant argue Stevens is volume and value
b. McGee – soliciting business is enough for substantial connection and state
interest in upholding PJ In case in business conducted across state lines
c. Stream of commerce question is still divided
3. 2. Convenience (Asahi unanimous ) MAIN CONSIDER BURDEN ON DEFENDANT.
a. Burden on defendant – big corp , not big burden
b. Plaintiff interest in suing that particular forum
c. Forum interest in adjudicating suit
d. Shared policy interest of those states
4. What is not minimum purposeful contact?
a. Ownership of property alone – Shaffer (MC for in personam and in rem)
b. Contract with someone in that state- unless PLAINTIFF HAD REASON TO KNOW
COULD BE SUED IN THAT STATE
i. Burger King Not enough that you had contract, need to balance for
fairness:
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 1. prior negotiation led up to contract –
2. Future consequences did contract contemplate
3. term of contract
4. parties’ actual course of dealing
c. Contacts created unilaterally by other parties (VW P unilaterally brought to a
different state, post purchase consumer movement)
i. Last play in stream of commerce to sue is where consumer purchased
product – can sue in VW in NY not in Oklahoma
d. Contacts that are foreseeable but not purposeful (Asahi and VW) (need
distributor, ads, state office, more than just stream of commerce)
i. Disagreement in SC – unfinished vs. finished products sent through
stream of commerce Asahi did not have majority
e. Contacts with other states or with US as a whole – must target a state in
particular (McIntyre) ONE SOVEREIGN AT A TIME. State vs. us sovereign. Need to
be purposeful availment to forum state… But dissent what is the US?
f. Contacts with citizens of the state while they’re out of state
ii. General jurisdiction (At HOME – Goodyear)
1. Claim is not related to the continuous and systematic contact with forum state, you have
so much contact you can be sued for anything in that forum state.
2. If defendant is natural person – contact that creates general jurisdiction
a. 1. Residence or 2. Domiciled
3. Corporation – such systematic and continuous contact to make them at home
a. Place of incorporation is their domicile
b. HQ/Principal Place of Business is like residence
i. Or temporary like Perkins Philippine co. office in Ohio, PPOB during WW2
4. What is not general?
a. Defendant merely purchased items in that state (Helicopteros)
b. Sold lots of stuff but small overall percentage so not enough to establish at
home(goodyear) (Daimler same contact in other states so not significant enough)
5. Cannot be granted by stream of commerce or minimum contact
iii. traditional/ Consents/Waiving
1. Tag jurisdiction – physical presence when served in state is the classic service,
everything else is just a substitute (Burnham)
2. Consent by appearance in court : Bauxite special appearance to contest jurisdiction, so
consented to jurisdiction to comply with discovery, by submitting to jurisdiction for
purpose of challenging jurisdiction, defendant agrees to abide by that courts
determination on issue of jurisdiction
3. Consent by registration in state – Flexner – states can’t exclude companies from doing
business therefore cant attach consent to service as condition
4. Consent by contract – choice of forum clause in Bremen between two companies must
be upheld to that agreed forum, carnival cruise between company and passenger must
agree to litigate in that forum
d. In rem jurisdiction – claim against property , PJ over where it is located. Benefit from law but purposeful
i. Under territorial – could have PJ over in rem like Pennoyer
ii. OVERRULED BY SHAFFER - Harris v. Balk – intangible property follows owner like debt so if
person is in forum state so is their intangible property, overruled by Shaffer
iii. Shaffer v. Heitner - established same test of minimum contact as in personam bc contact with
property is same as with owner
1. Property can still be related to claim, not irrelevant.
2. Jurisdictions can hold property for security but not to establish PJ
iv. Under in rem – can only recover value of property
e. Quasi in rem – seize property of defendant and then serve the defendant bc established PJ
i. Cannot seize bank account of NY in CA and sue in CA bc account has nothing to do with claim and
not at home if accident happened in NY and defendant lived in NY but plaintiff lived in CA
f. Attacking PJ
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 i. 12b2: federal challenges to PJ: move to dismiss case before answer: (2/3 states have own rules)
1. Lack of subject matter jurisdiction - nonwaivable, can be raised anytime by anyone like
courts, plaintiff and defendant
2. Lack of personal jurisdiction - INITIAL OR WAIVED/CONSENTED
3. Improper venue - INITIAL OR WAIVED
4. Insufficient process - INITIAL OR WAIVED
5. Insufficient services of process - INITIAL OR WAIVED
6. Failure to state a claim upon which relief can be granted - can't waive that either
7. Failure to join a party under rule 19
ii. Collateral attack on PJ
1. Pennoyer – attack PJ in first case. Direct attack is appeal to supreme court, collateral is
restart case. So if Neff had shown up to say no personal jurisdiction in case 1, would’ve
consented to jurisdiction and couldn’t have brought case 2.
iii. Limited appearance problem in rem and quasi in rem
1. Allow defendant to appear for limited purpose of defending interest in attached property
without submitting to in personam jurisdiction
II. Subject Matter Jurisdiction – binding on kind of cases
a. Need to meet both constitutional and statutory requirements!
b. State courts have courts of general jurisdiction.
c. Constitution: Article III section 2. Only need to establish 1/9.
i. The Federal Question
1. Law and equity all cases arising under the constitution, and treaties of the united states
ii. Foreign Ambassadors, consuls, other public ministers
iii. Admiralty and maritime - shipping
iv. US is a party
v. Diversity jurisdiction: State v. state
vi. Diversity jurisdiction: State v. citizen of another state
vii. Diversity jurisdiction: Citizen v. citizen of another state
1. Question of bias towards person who does not live in state
2. No fear of bias in federal govt
viii. Land claims
ix. Aliens – permanently residing in state count as domicile of that state (not us citizen)
d. Is there diversity citizenship?
i. Statute: 28 USC § 1332(a): Diversity of Citizenship; meet minimum 75k Amount in controversy
1. Citizens of different states
a. Have to be domiciled to be citizen – their permanent place of residence
i. Mas v. Perry – domicile is not where you go to school
b. Change in domicile is taking up residence in different domicile with intention to
remain there permanently
i. Not in VW bc had not moved to Arizona yet, only made it to OK so
domicile was still NY
c. Does not include US citizens abroad bc not a resident of any 50 states and not
subject of another country. DIVERSITY KILLERS.
2. Citizens of a state and a foreign state unless they are lawfully permanently residing in
same state (Plaintiff NY and Defendant perm res alien residing in CT, if perm res alien in
NY then no diversity)
3. Citizens of different states and foreign states who are additional parties
a. Cannot be alien v. alien has to have citizen on each side.
4. A foreign state as a plaintiff and citizens of a state or different states
Nat person/us citizen Domicile- 1332a1 permanent place of residence
Corp State of inc AND PPOB (nerve center) (Hertz) 1332-c1
Partnership association that citizenship is citizen of every state of where it has
members.
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 Representative party Citizenship of represented party - 1332c2
Alien not perm reside None aliens - 9th
Perm res alien 1332a2 (Mas v. Perry)
ii. 1. Know each party’s citizenship
iii. 2. Then apply rule of complete diversity - Have to be diverse from both POI and PPOB to have
complete diversity
1. If at least one plaintiff and at least one defendant are from same state, not complete
diversity
iv. 3. Then determine if amount in controversy exceeds 75k (plaintiff could reasonably recover
more than 75k)
1. Doesn’t matter if awarded less, you need to SEEK more than 75k.
2. unrelated claims may be aggregated by one plaintiff against one defendant to total over
75k
3. if multiple plaintiffs with related claims, each plaintiff needs to meet the threshold of
over 75k.
e. Is there a federal question?
i. Const and Statutes
1. Article III section 2: Law and equity all cases arising under the constitution, and treaties
of the united states
2. 1331: The federal question: The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.
ii. Concerns federal statute, patent law, civil rights statute, then a FQ.
1. Like banks (Osborn, congress created bank so federal statute)
iii. Motley well pleaded rule – FQ has to be in plaintiff’s initial claim, has to be the core of the
plainitff’s initial claim, predicting defense is not enough.
1. Skelly oil - Declaratory judgement act was not satisfied by anticipating federal defense in
declaratory complaint, distorts procedural purpose.
a. When defendant just wants judge to declare they don’t owe anything
2. Declaratory judgement - D knows P will sue so preempt suit by trying to settle dispute
with their argument, court inverts, applies mottley rules so P’s argument not D’s defense
f. Supplemental jurisdiction
i. OLD TEST
1. Gibbs Test- more efficient to bring state and federal claims together
a. If first case is original jurisdiction federal
b. State claim is within same nucleus of operative fact
c. Two must be normally tried together.
2. Statutory and discretionary factors – court has discretion.
ii. New test
1. Do the rules of joinder 13, 14, 18, 20 permit joinder
a. Rule 13a – compulsory counterclaim
b. 13b- permissive counterclaim not related to pending action
c. 13g cross claim P1 against P2
d. 14a- defendant bring in third party defendant
e. 18 – joinder of claims from one plaintiff against opponent
f. 20 – joinder of parties (two defendants, two plaintiffs, etc)
2. Is there independent basis for jurisdiction of this claim? PATENT? BANK? CIV RIGHTS?
3. Is there supplemental jurisdiction?
a. Does 1367a let the claim in?
i. Claim that got into fed jur in first place (can be any of 9)
ii. Common nucleus of operative fact (Like Gibbs)
iii. If you’ve met these two tests and it is by joinder, then yes codify it
b. Does 1367b kick it out? Court has jurisdiction unless barred by exception.

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 i. Is the case in fed court bc diversity? IF not then b is irrelevant. APPLY
(like Owen was not allowed to bring state claim against d3 since basis of
diversity for SMJ)
ii. IF ABOUT 1332 (DIVERSITY AND AMOUNT IN CONTROVERSY), KICK IT
OUT IF supplemental claim by plaintiff against party joined by rule 14, 19,
20 or 24?
1. So if D1 used 14a to D3, and the P impleads D3 then this claim
that is under 75k is not allowed if parties are diverse.
2. So P1 and P2 (joined by rule 20) can sue D1 using piggybacking
not aggregation
3. P1 cannot bring claim against P2 bc joined by rule 20 – unless FQ
4. but P1 cannot sue d1 and d2 bc joined by rule 20 sue two
defendants at once if Diversity
5. Claims by defendant against d3 always allowed under this bc not
by plaintiff!!!
iii. So if FQ, or by defendant against plaintiff, then allowed like 13a,b.
c. How should district court exercise discretion of 1367c? - would it be efficient?
Like Finley – convenient to try husband’s death case both fed and state claims
only once since he died once
4. Piggybacking is allowed if meet constitutional diversity even if does not meet statute
amount requirement
a. As long as not by plaintiff against party joined under 1367b
b. This is not aggregation unless 1 p aggregate claims against 1d
5. After 1367 - Piggybacking is allowed
a. If two plaintiffs v. one defendant only one met amount in controversy bc 1367b
allows claim by plaintiff against defendant joined by rule 20 and these two
plaintiffs joined by rule 20 not defendant.
6. Exxon mobile – 1367 authorizes supplemental over claims of other plaintiffs in same
controversy if those claims are less than 75k as long as at least one named plaintiff in
action satisfies amount. Neither of the additional claims meets 1367b test! So there is
supplemental jurisdiction bc not sole basis diversity and joined under rule 23
7. Have to maintain complete diversity
g. Challenging SMJ
i. Direct attack on courts lack of subject matter jurisdiction
1. Any party or court sua sponte at any time in proceeding can raise SMJ challenge
ii. You can raise it on appeal if it was not raised on appeal - Capron v. van Noorden - record didn’t
show there was or was not SJ.
1. What if SC denies review and in some other case in other court has same question. Case 1
has no effect on case 2. DES MOINES NAVIGATION CASE no one brought up jurisdiction
in first so court said its too late. Cannot be raised collaterally.
iii. Collateral attacks
1. A collateral attack on a judgment is one brought in a separate action (NOT on appeal
from the original action)
2. Usually, collateral attacks on a judgment for SMJ reasons are not allowed.
3. BUT they can be allowed if:
a. 1) there are no justifiable interests in reliance on the judgment, AND
b. 2) one of the following is true:
i. a) the court so obviously lacked SMJ that failing to dismiss the action was
an abuse of authority, OR
ii. b) letting the judgment stand would substantially infringe on the
authority of another court or agency, OR
iii. c) the court lacked the capability to make an adequately informed
decision about SMJ, and fairness requires allowing a late challenge to it
4. ALSO: collateral attacks on SMJ are usually allowed after a default judgment against an
absent D UNLESS the D had actual notice of the action and chose not to appear
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 III. Venue
a. Once you’ve chosen venue as plaintiff you have completed choice of forum : SMJ over case PJ over
defendant and proper venue under federal/state statutes. NOT IN CONSTITUTION.
b. Is venue proper? - if it meets the statute, it is convenient.
i. 1391b1 – venue in judicial district any defendant DOMICILED in as long as all of the defendants
are domiciled in the same state. If not, no venue under this
1. 1391c1 – natural person is domiciled
2. 1391c2 – defendant is subject to PJ with respect to civil action in question (specific PJ) –
plug into b1
3. 1391c3 – if defendant is not resident in US can be sued in any judicial district
4. 1391d1 – contacts sufficient to subject to PJ if that district were a separate state, deemed
to reside in district within district which has MOST SIGNIFICANT CONTACTS.
a. D – treat districts like separate state. Corp has residency in the districts where
there was PJ
ii. OR 1391b2 – if substantial part of events giving rise to claim occurred in district, doesn’t have to
be most substantial (Bates) moved away from venue where claim arose, and where NOT MOST
SUBSTANTIAL JUST A SUBSTANTIAL (so about improper letter, receiving letter in NY is
substantial)
iii. OR 1391b3 – if b1 and b2 didn’t work, then any district that has PJ over defendant - multi
defendants with domicile in different states and events occurred abroad.
iv. Under 1391B
1. Suppose plaintiff from DE sues 3 defendants and accident occurred in CT and D1 is from
Western NY, D2 and D3 are Southern NY, in what judicial district can plaintiff lay venue
of 1391b - W or S District of NY bc all 3 are from NY cannot be N or E
2. Suppose d3 is also in Connecticut d1 west ny d2 is southern ny - cannot establish under
1391b1 bc not all defendants reside in NY now. So cannot lay venue there.
3. So in this case would have to use 1391b2 bc substantial part of events occurred in CT.
4. Convenience
a. Point of venue is to limit plaintiff choice of forum if 1391b1 provides venue why
is that convenient? Bc that’s where all defendants live in state. At lest one of you
live in that district and the rest of you at least live In that state!
b. Convenient for where part of events occurred so witnesses and evidence there.
5. 1391b3 - fallback section only works if b1 and b2 do not provide venue in any judicial
district in the country!! Not just that b1 and b2 don’t work whre plaintiff chose to sue.
Only if no venue in aNY JUDICIAL DISTRICT. What kind fo case would b3 apply?
6. If defendants live in different states or lives abroad, and the events occurred abroad!!!
Neither b1 or b2
7. B3 has to be a judicial district where there is personal jurisdiction to ANY DEFENDANT
NOT ALL DEFENDANTS!!
v. P is resident of DC and has vacation home in Eastern VA. Defendant incorporated and PPOB in
Maryland.
1. 1. Could P sue in Eastern VA? 1391b2 SUING about work on vacation home
2. 2. Defendant would be subject to PJ in VA bc working on the project in VA, taking
advantage of law in VA receive benefits bc workers work there
3. 3. AND eastern VA was separate state from MD - reside in that district?
4. Could plaintiff sue in Western District of VA? Bc PJ for state of VA but residency is the
district so not enough contact with Western District that are Relevant TO THIS CASE.
c. D transfer Venue – from federal to federal or state within state
i. 1404- initial venue was proper - broad discretion
1. A. For convenience of parties and witnesses in the interest of justice, district court can
transfer to any district it might have been brought originally OR TO WHICH ALL PARTIES
CONSENT SO doesn’t have to be proper under 1391
a. Balance access to witnesses, court familiarity with governing law, P’s forum
choice.
2. B. – court discretion may transfer from division to any division in same district.
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 3. C. – district court may order civil action to be tried at any place within division it is
pending – from a good district with PJ and venue to even better district PJ, venue and
more convenience
4. Any party can transfer under 1404 not just d
5. UNDER 1404 THE CHOICE OF LAW IS THE PJ OF THE ORIGINAL VENUE.
6. Hoffman – court can transfer to district where plaintiff could not have originally
brought it if more convenient
ii. 1406- initial venue was improper, cure or waiver of defects
1. (no PJ or no venue) If lay venue was wrong or if in interest of justice, transfer of such
case to any federal district in which it could have been brought in original jurisdiction (PJ
and where venue)
2. But still applies Choice of Law with PJ in original venue
iii. 1631 – transfer between fed courts for lack of jurisdiction
1. Transfer to fed court where action could have been brought, treated as if filed in that
court on same day as it was filed in original court
iv. What does it mean when suit could originally have been brought in target forum?
1. This satisfied only if plaintiff could have brought the suit in that venue at the time it was
originally brought in the other venue
2. Any waivers of venue since then are irrelevant
3. What if target forum has SOL that would have barred P’s claim? – probably ok
d. D Remove – state to federal
i. 1441a – any civil action in state court where district court would have original jurisdiction may
be removed by defendant
ii. 1441b2 – civil action otherwise removable solely on diversity jurisdiction may not be removed if
any parties joined serve as defendants is citizen of state in which action is brought
1. Means could have started in federal court but cannot remove diversity case if brought in
state of which defendant is citizen - BC PLAINTIFF SUED IN DEFENDANT STATE THEN
STATE WILL BE BIASED AGAINST PLAINTIFF NOT DEFENDANT, SO NOT VALID REASON
iii. 1441c1b – entire action may be removed if action would be removable without inclusion of
claim in B.
iv. 1446b2a – all defendants who have been properly joined and served must join in or consent to
removal . Shamrock – original defendant is entitled to removal no one else
v. 1446b2b – defendant has 30 days after receipt of service to file notice for removal
vi. 1447c- if case is not removable then district court shall remand back to state court.
e. Defendant can dismiss venue under 12b3 - (initial or waived!!)
f. Forum non conveniens (piper) (common law) defendant dismissal bc brought in wrong court system
i. First question is there another forum to which plaintiff can go? Improper to dismiss if no
adequate alternative - bc cannot remove/transfer from one state to another state or to foreign
country
ii. Can be convenient under venue but dismissed for forum non conveniens if there’s a better one in
different state or country
iii. Consider facts: private interest of parties, public interest of dispute, access to evidence and
witnesses, convenience choice of law and jury confusion?
IV. Notice/Service of Process
a. Historically
i. 1877 in Pennoyer service 1. Created personal jurisdiction bc had to be served in forum state and
2. Provided defendant with notice that they were sued
ii. Today only function to provide notice, can be done anywhere Since PJ is now MC test
b. Constitutional requirements
i. Actual notice is not required
ii. constitutional Test today established by Mullane
1. Notice must be reasonably calculated under all the circumstances to apprise the
interested parties that they’re being sued
a. Wuchter v. pizzuti - what if state notice statute permits notice that is not
reasonably calculated to permit notice but defendant gets actual notice and says I
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 want this case dismissed that I got it by means that was not reasonably
calculated. Even defendant received actual notice can complain notice was
served by unconstitutional means reasonably calculated means. The fact that
actual notice was achieved was irrelevant.
b. Covey: take into account circumstances. should not mail to insane person
without guardian, but blind people are known to have people who read mail for
them so can send to them
c. Must balance the degree of interest in parties being notified, and the cost
practicality and effectiveness compared to other methods
d. Jones v. flowers - If you know mail failed you are required to take try again
e. Mennonite v. Adams- service publication is last resort, need mail that is more
likely to give actual notice. Minimum mail if name and address are reasonable
accessible
2. Means employed to notice must be means someone who wanted to
a. Minimum effort if you know address or can learn it you have to mail them,
b. Doesn’t actually have to receive service just have to show effort
iii. Must satisfy federal rules and constitution / and statute rules
1. Mullane was satisfied by state statute but publication unconstitutional
2. Pennoyer – publication was state statute but also deemed unconstitutional
3. Tickle v. barton.- luring them into jurisdiction to serve is not proper
c. If fed also need STATUTORY REQUIREMENT: Rule 4 Summons
i. C. service- – summons must be served with copy of complaint, time allowed in 4(m), person
serving at least 18 and not a party, or marshal or someone specially appointed
ii. D – waiving service allows longer time to respond to complaint
1. Request waiver so lawsuit go forward without summons
a. Be in writing and addressed (cant summons by mail but can request waiver)
b. Includes the summons and complaint so if they receive the waiver they
have notice
c. G. give defendant reasonable time of 30 days after request sent to return waiver.
d. D has to return waiver or else P has to attempt service as usual and D is required
to pay?
iii. E. serving individual in judicial district in US
1. Follow state law for serving summons in state EITHER where district court is or where
service is made OR
2. OR
a. Personal delivery
b. Leave copy of each at individual dwelling or usual place of abode with SOMEONE
OF SUITABLE AGE AND DISCRETION WHO RESIDES THERE
c. Deliver to agent authorized to receive service of process
i. Hellenic Challenger- if that person has received process before and was
well integrated into organization, even if not expressly authorized this
experience makes them proper bc reasonably calculated they could
accept service
ii. Szukhent – agreed in contract to NY agent to receive process and thus PJ
in NY, bc she received it and notified the farmers (even if never met
agent, still agreed)
iv. H. serving corporation
1. Following state law that you would as individual
2. Deliver copy of summons and complaint to an agent authorized to receive process
a. Is the employee someone who it would be appropriate to give service to?
b. If employee has history of receiving process and corp lets them, may be implied
agent even if they’re never expressly appointed as one.
c. Goal is to satisfy rule, so if you think improper service, just do it again!
v. K. LONG ARM STATUTES!!!
1. Serving summons or filing waiver of service establishes PJ over a defendant
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 a. A) who would be subject to general PJ by the state the district is in
b. OR B) who was joined under Rule 14 or 19 and was served in a district within
100 miles of where the summons was issued
c. C) OR if there’s a federal statute that authorizes it like RICO
2. Federal claim outside state court jurisdiction – if claim arise under federal law, serve
summons or file waiver of service establishes personal jurisdiction if
a. Service/waiver of service establishes PJ over a defendant:
b. If no state court has general jurisdiction, AND PJ is consistent w/ the constitution
and laws
3. Proving service
a. Return – affidavit required to court
b. 3. Validity of service – amending proof. Failure to prove service does not affect
validity of service. Court may permit proof of service to be amended
vi. M. time limit for service
1. Defendant has to be served within 90 days after complaint is filed.
vii. Why have an agent?
1. Agent must attempt to notify the principal promptly after receiving service.
2. Statute must require agent to attempt actual notice of principal or else service is
improper even if principal is actually notified
viii. Never wait til SOL almost up. Start process 6-9 months earlier in case service is not proper.
V. Pleading
a. Rule 7 – pleadings are
i. A. A complaint or answer to complaint, counterclaim, crossclaim, third-party complaint.
ii. B. motions – request to court must be made by motion, state what grounds for seeking order and
the relief sought.
b. Rule 8a – claim for relief requires
i. Short and plain statement of grounds for court jurisdiction
1. Unless court already had jurisdiction and claim needs no new jurisdictional support
ii. Short and plain statement of claim that shows pleader is entitled to relief
1. ENOUGH FACTS TO SHOW THAT CLAIMS ARE PLAUSIBLE (Twombly, Iqbal)
iii. And a demand for relief sought
c. Answer with 12b6 – motion to dismiss for failure to state a claim
i. Assuming all facts in the complaint are true… (not the legal conclusions, facts) (Twombly)
ii. 1. No legal cause of action
iii. 2. Insufficient facts to make a showing of a claim
iv. ONLY A PLAUSIBLE CLAIM FOR RELIEF SURVIVES MOTION TO DISMISS – CONTEXT SPECIFIC
(Iqbal)
d. Rule 8b – Defense: Admission and Denial
i. For each allegation in the pleading that’s being responded to, the party must 1. Admit, 2. Deny or
3. Plead insufficient information
ii. Failing to deny a claim means admitting it
iii. Pleading insufficient information has the same effect as a denial
iv. General denials (“I deny all allegations”) are a bad idea. There are almost definitely allegations
which are true (e.g. names of parties, states of residence, etc.)
1. court may see the entire denial as ineffective. Then every allegation is admitted.
e. Rule 8c – affirmative defenses
i. If the party has any affirmative defenses they want to raise, they need to do it in their response
or else they are waived
ii. Defendant’s burden to plead it –
iii. What is affirmative defense vs. defense that never happened
1. If it involves additional facts! (confession and avoidance, taking all plaintiffs facts as true
I have my own facts)
2. If it is something defendant is in better position to know
iv. Some defenses are disfavored like SOL people get out of debts bc SOL expired
f. Rule 11 – deter frivolous pleading
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 i. a) Every written document must be signed by at least one attorney of record (with their name,
address, email, and phone number)
ii. b) When an attorney makes a representation to the court, they are certifying that it’s true and
that it’s supported by law and evidence
iii. c) if (b) is violated, the court can impose sanctions
1. Sanctions are all discretionary; the court decides whether sanctions are appropriate and
how severe they should be
VI. Joinder –
a. Counterclaims and cross claims
i. 13a – compulsory counterclaim arises out of same transaction/occurrence as opposing party’s
claim and if would not add any new parties that court does not have jurisdiction over
1. Exception –
a. 1) the counterclaim is already the subject of another pending action, OR
b. 2) the other party sued in a way that did not establish personal jurisdiction AND
this party has not yet asserted any counterclaims
c. Why? Because otherwise you could lose all relevant claims whenever someone
brought a claim against you w/o personal jurisdiction. But that concern goes
away once you choose to fight back with at least one counterclaim.
ii. 13b- permissive counterclaim – not compulsory
iii. 13g – crossclaim against a coparty – if related to the claim that makes them coparties, OR relates
to original claim
1. P1 sues P2, D2 sues D1, etc.
b. Rule 14- IMPLEAD- Defendant (now third-party plaintiff) bring in third party defendant
i. D1 brings in D3 as liable to D1 for part or all of P’s claim.
1. All is indemnity, part is contribution
ii. D3 can bring related or unrelated counterclaims against D1 under 13a and 13b
iii. D3 can bring claim against P, P can bring claim against D if all RELATED TO CLAIM THAT MADE
D3 A PARTY.
iv. Relies on there being jurisdiction – not if diversity case bc no supplemental jurisdiction will
allow it.
v. Different from 13g – D3 is not D2 yet until P brings claim
vi. Then D3 has to bring any compulsory counterclaims against D1, crossclaims against other D3s,
defense against original P claim that they were impleaded on, and claims against P which arise
out of same transaction.
vii. P also bring any claims against D3 which arise out of the same transaction as the claim they were
impleaded on
c. Rule 18 – joinder of claims
i. Addition of claim by same plainitff against same defendant. Add any claim related or unrelated if
you already have a claim against that party.
ii. Does not get you the first claim, so the first claim is related to original lawsuit or cross claim,
then you can add in unrelated
iii. As long as don’t require bringing in additional parties
d. Rule 20 –joinder of parties
i. Any number of plaintiffs can sue any number of defendant, provided they are related/arise from
same series of transactions AND there is common question of law or fact between
plaintiffs/defendants
e. Summary
i. 13 and 18 allow parties to add whatever they have
ii. Rule 14 allows D1 against 3, rule 18 allows D1 to more against D3, and 13b allows D3 against D1
iii. When court says out of same transaction –logically connected and share issues of fact?
f. Rule 19 – main exception to plaintiff decides who to sue
i. 19a required person to be joined if feasible
1. If they are subject to service of process
2. And their joinder will not deprive court of SMJ (diversity issues)
3. And
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 a. 2) that person claims an interest related to the subject of the action AND moving
forward without them would either:
i. A) impede the person’s ability to protect their interest, OR
ii. B) leave an existing party disproportionately liable because of the
interest
ii. A person must be joined as a party if
1. Is the absentee described in 19a? person who should have been joined in case if feasible?
a. If not described in 19a then no need to join absentee
b. If yes, absentee must be joined if feasible
2. Is joining absentee feasible?
a. Yes – then must join absentee OR CASE DISMISSED
b. If you can’t join them like screw up venue or complete diversity DON’T JUST
DISMISS. GO TO NEXT STEP
3. In equity and good conscience can action proceed without absentee?
a. If yes then proceed with some adjusting
b. If no then dismiss case and absentee is said to be indispensable
c. Consider –
i. The extent to which reaching a judgment without that person would
prejudice them or the existing parties
ii. The extent to which prejudice can be lessened by:
1. Tailoring the judgment or relief granted to avoid prejudice
2. Other measures
iii. Whether it’s possible to reach an adequate judgment without that person
iv. Whether dismissing the action would leave the plaintiff without a way of
getting relief
d. If the joined party objects to venue and joining them would make venue
improper, the court must dismiss them as a party.
g. Court has discretion and can bring together separate actions or split them up – for judicial fairness
VII. Discovery
a. Scope of Discovery (FR 26) (Fasset)
i. Material is within the scope of discovery (better truth seeking at trial) IF:
1. Not privileged
2. Relevant to any party’s claim or defense
a. if you sue for pothole can’t ask for pizza recipe
3. Proportional to the needs of the case
a. Factors to consider on proportionality:
i. Importance of the issues in the case
ii. The importance of the discovery in resolving the issues in the case
iii. The parties’ relative access to the information
iv. The parties’ resources
v. Amount in controversy
vi. Cost/burden of discovery versus its benefit
ii. Need not be admissible into evidence to be disc’able, leads to admissible stuff
iii. Limits on discovery
1. Limiting frequency and extent (FR 26(b)(2)(C))
a. On a motion or on its own, the court must limit the frequency or extent of
discovery when:
i. The discovery is unreasonably cumulative or duplicative,
ii. or can be obtained from another source that is less burdensome or
expensive; or
iii. The party seeking discovery has already had ample opportunity to obtain
the information
iv. Protective orders (FR 26(c)) (court has discretion)
1. Anyone from whom discovery is sought may move for a protective order

11
 2. The moving party must certify that they’ve tried in good faith to resolve the discovery
dispute before coming to the court
3. A protective order may be granted in order to protect a party from:
a. Annoyance, Embarrassment, Oppression, Undue burden or expense
4. The court has many options when considering how to formulate a protective order; see
FR 26(c)(1)(A)-(H)
a. Including forbidding the discovery; setting terms and limits on it; requiring the
material be kept secret; etc.
b. Mechanics of Discovery and Disclosure
i. Step one: discovery conference (FR 26(f)) – JUDGE IS NOT INVOLVED
1. Parties must confer ASAP to talk about discovery plans, possible settlements, etc.
2. Cannot request any discovery before the conference (FR 26(d)(1))
ii. Step two: initial disclosures (FR 26(a)(1))
1. W/in 14 days after discovery conference:
2. Must give certain info which:
a. Is in the scope of discovery, and
b. The disclosing party intends to use at trial
3. Info must be given automatically w/out waiting for a request
4. What do they need to give?
a. Name, address, and phone # of every person likely to have info w/in the scope of
discovery, plus the subjects of that info
b. A copy or description (like an index) of all documents, electronic info, or tangible
stuff the disclosing party could use to support its claims or defenses
c. Computation of damages for each claim
d. Insurance agreements that might make the insurer liable
e. Identities of any experts to be called at trial, and those experts’ reports (if
required)
5. Exception: don’t need to disclose evidence that will be used for impeachment
a. don’t have to disclose things you don’t intend to use, especially if good for
opposing party until they request it. (Cummings)
iii. Methods of discovery can be used in any order
iv. (1) Oral depositions (FR 30)
1. Must give notice to other parties
a. Notice of time, place, & deponent identity
2. When and where?
a. What if the deponent is a party?
i. The deposing party decides when and where the deposition will happen.
The deponent is required to show up.
b. What if the deponent is not a party?
i. The deposing party can ask them to be deposed
c. If the deponent won’t comply willingly, the only way to compel them is through a
subpoena
3. What if the deponent is a corporation?
a. Must state reason for deposition w/ particularity so that deponent corporation
can send appropriate officers or agents to be deposed
4. What if the deponent objects to a question?
a. If the objection is that the info is privileged:
i. The deponent does not need to answer.
b. If the objection is not about privileged info
i. Too bad. You have to answer. (30c2)
ii. But admissibility issues might stop the info from coming in at trial.
5. All parties are present at depositions and can cross-examine the deponent
v. (2) Depositions on written questions (FR 31)
1. Not used very often
2. The questions are written, but the answers are still oral like a regular deposition
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 vi. (3)Interrogatories (FR 33)
1. Written questions sent to a party with written response
a. No more than 25 questions, unless the court gives permission for more
b. Questions do not have to be factual; they can ask for opinions or interpretations
of the law
2. The responding party has a duty to make rxble efforts in seeking out information before
answering
3. Instead of answering, the responding party can object by saying question is
a. Outside scope of discover
b. Relevant but privileged so outside scope
c. Too burdensome – not proportional to needs othe case
4. What if answering the question would require combing through records?
a. Rather than answering, the responding party is allowed to just give the
requesting party a copy of all the records required to find the answer
5. Contention interrogatory – can ask party what its legal position is, more than pleading.
a. What is it you contend the plaintiff did negligentnly? Why/when/how
b. Under 33a2 can delay answer under contention bc more facts could come out in
discovery, need more discovery before saying what contention is
vii. Pros and cons of depositions versus interrogatories
1. Depositions:
a. Ask them all the questions you want bc you might be able to use it at trial – in
case witness is unavailable
b. Both sides participate
c. Limit to 7 hours
d. Must answer even objectionable questions (unless privileged)
e. Easier to ask follow-up questions
f. Can be used on parties or non-parties
g. More expensive
h. Easier to catch them off guard, more spontaneous
i. That party might not know the answer
2. Interrogatories:
a. Limit to 25 questions
b. More time for responding party to craft answers with lawyer
c. Responding party must seek out information before answering
d. Can only be used on parties
e. cheaper
viii. (4) Discovering documents & other stuff (FR 34)
1. Within the scope of discovery, a party can ask for:
a. Documents
b. Tangible objects
c. Entry onto land or buildings controlled or possessed by the other party
2. The request must:
a. Describe the stuff to be inspected w/ rxable particularity
b. Specify a rxable time/place/manner for inspection
3. When handing over documents, the responding party must leave them in their normal
order or organize them in a rxable way
a. Can’t try to hide damaging documents by moving them out of order
b. Parties must respond within 30 days
4. Use 45a to subpoena
ix. (5) Physical & mental exams (FR 35)
1. On motion for good cause, the court can order examination of a party if their
physical/mental condition is in controversy
a. Good cause if need > burden (Shalagenhauf)
i. Affirmative showing is genuinely in controversy (like eyesight in car crash
case)
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 ii. Reason to belief that exam will produce something useful
iii. Something from pleadings warrant further exam
2. Details:
a. The examined party can be either a P or a D
b. The requesting & examined parties do not need to be opposed
c. If a party asserts injuries or mental problems in a claim or defense, those issues
are automatically considered in controversy
x. (6 -least used form of discovery) Requests for admission (FR 36)
1. A party can request admissions relating to:
a. Facts, Application of law to facts, Opinions about law or facts, Genuineness of
documents
2. The responding party can either admit, deny, or explain in detail why they’re unable to
answer.
a. If the responding party says they’re unable to answer, they must state that a
reasonable inquiry has been made
3. If the responding party admits anything, the admission is conclusive evidence of its truth.
4. Failure to respond w/in 30 days equals an admission.
5. Denials must be clear or else there’s a risk the court will see them as admissions
c. Protected Materials
i. The work-product doctrine (FR 26(b)(3) and Hickman v. Taylor)
1. There are two authorities that protect materials prepared for litigation.
2. Under the work-product doctrine, don’t ask when work was prepared. Ask why it was
prepared.
3. The doctrine protects documents, but does NOT protect the info contained in them.
a. E.g. a party could ask interrogatories relating to the subject matter of a work
product document, even if that document itself wouldn’t be discoverable
4. Hickman v. Taylor
a. SCOTUS held that materials prepared for trial are protected from discovery =
even if no trial at the time, includes future litigation, only came into existence bc
prepared in ANTICIPATION of litigation
b. The work-product doctrine (expressed in Hickman) protects documents, other
tangible things, and mental impressions
c. It protects documents prepared for litigation by anyone, not just lawyers
5. FR 26(b)(3)
a. codified Hickman; occupies some of the same space, but Hickman is still good law
and it covers more stuff (expressly covers mental impressions, and documents
prepared by non-lawyers)
b. 26(b)(3) protects documents prepared by that party/its lawyers/agents in prep
for litigation.
i. Never has to “write down” anything to turn over bc those are impressions
c. does not protect facts
i. can ask “do you have a witness who saw the color of the light” yes but
cannot ask “do you have a witness who says you ran through a red light “
then don’t have to turn over.
ii. Can’t ask for interview but can ask for contact info
d. Exception:
i. Otherwise in the scope of discovery, AND
ii. The requesting party shows a substantial need, AND
iii. The requesting party can’t get the documents or their equivalent by other
means w/o undue hardship
e. If the court does order discovery of trial prep materials, it must protect against
disclosure of legal theories, mental impressions, and other things outside the
scope of the requesting party’s need
f. A party can request its own previous statement

14
 i. so other side can get a witness to ask for their statement and then give it to
other party who otherwise could not get it
ii. Attorney client privilege
1. Protects a communication if all of the following are true:
a. The person asserting the privilege is or sought to be a client
b. The person the communication was made to:
i. Is a lawyer or their subordinate
ii. Was acting as a lawyer with respect to this communication
c. The communication relates to a fact which:
i. The client told the attorney
ii. Without the presence of strangers
iii. For the purpose of getting legal help
iv. NOT for the purpose of committing a crime or a tort
d. And, finally: the privilege has been claimed and hasn’t been waived
2. What if the client is a corporation?
a. Covers communications between the attorney and employees of the corp.
(Upjohn)
3. Like the work-product doctrine, attorney client privilege protects communications but it
doesn’t protect the facts contained in those communications.
a. Those facts are still discoverable if a party makes discovery requests that reveal
them in other ways.
4. This is a true privilege; it can’t be overcome by a showing of need
a. Still true even if the client has died
5. Hypo: what if an interrogatory asks for something the attorney only knows because of a
communication protected by attorney-client privilege?
a. The attorney can’t waive the client’s privilege, but they have to truthfully answer
the interrogatory. The attorney has to ask the client to say the information again
for the purposes of answering the interrogatory (so they know it in a way that’s
not privileged).
b. But what if the client refuses and tells the attorney to lie?
i. The attorney can’t lie, they can’t tell the truth, and they can’t refuse to
answer. So their only option is to leave the case.
d. Experts
i. There are four kinds of experts:
1. Testifying experts – have to give their name and report to other side
2. Trial prep experts – don’t have to disclose name or report (26b4)
3. Informally consulted - don’t have to disclose
4. Fact witnesses who are also experts – treated like a regular witness
ii. Testifying experts must give a report and can be deposed by other parties but deposers pay the
hourly fee (26a2)
iii. Trial prep experts don’t have to give a report, and if they’re not going to be used at trial then
generally nothing has to be disclosed about them or their opinions
iv. Expert reports (FR 26(a)(2)(B))
1. Unless the parties stipulate or the court says otherwise, experts retained to give
testimony must give a report of their opinions on the case.
2. The report is given along with the initial disclosure of the expert’s identity
v. Discovery of expert info (26b4)
1. Experts can be deposed. If the expert is one that had to provide a report, then the
deposition must wait until after the report is made
2. Drafts of expert reports are protected by the work-product doctrine
3. A party getting discovery from another party’s expert must pay the expert for their time
4. Communications between a party’s attorney and their experts are also protected
a. Except where the communications:
i. Relate to compensation for testimony; or

15
 ii. Identify facts or assumptions the attorney gave the expert & they used to
inform their opinion
e. Use of discovery
i. When can a deposition be introduced as evidence in a proceeding?
1. If the party it’s being used against was represented at the deposition or had reasonable
notice of it, AND
2. The statements in the deposition would be admissible under the rules of evidence if the
deponent were testifying in person, AND
3. The use is allowed by FR 32(a)(2)-(8)
a. Those rules allow use if:
b. The deposition is used to impeach testimony given by the deponent as a witness
(e.g., “You said this at trial. But wait! That contradicts what you said in your
deposition”)
c. The deponent was a party or a party’s officer, director, managing agent, or
designee
d. The deponent is unavailable
i. Death or serious illness
ii. >100 miles from the place of hearing or trial, or outside the US
iii. Imprisonment
iv. Couldn’t make them come with a subpoena
v. Exceptional circumstances (on a motion showing use of the deposition is
in the interest of justice)
4. Why isn’t a deposition inadmissible as hearsay?
a. Because the rule doesn’t ask whether the deposition is admissible itself; it asks
whether the content in it would be admissible IF the deponent were making
those statements as a witness at trial
5. Practical tip: deponents who might be later called as witnesses at trial may end up being
unavailable. So when deposing them you should ask all the questions you want to get out at
trial.
a. Although if you say Amy told me and Amy is dead, you can’t corroborate it with her
so that is inadmissible
b. Not admissible if taken on short notice and without representation
ii. Using interrogatories in court proceedings (FR 33(c))
1. Admissible despite looking like hearsay; there’s an exception to the hearsay rule for
statements made by adverse parties
f. Sanctions
i. Failure to make an initial disclosure (FR 37(c)(1))
1. If a party fails to make an initial disclosure, then they are not allowed to use that
information or witness
2. The court can also add additional sanctions on top of that
ii. Motion to compel discovery (FR 37)
1. A party may move for an order compelling disclosure or discovery.
a. The motion must include a certification that the moving party has made good
faith efforts to talk to the person discovery is sought from and resolve the issue
without resorting to compulsion from the court
2. American rule – each side win / lose pays its own fees
3. What happens if someone fails to comply with an order to produce discovery or make
disclosures? (37b)
a. Will assume that what other party was trying to prove is correct by your
omission
4. Automatic penalty 37c – if you don’t comply with 26a disclosure and then try to
introduce it at trial, it will be excluded.
5. Judge cuts you some slack on discovery but if you screw up multiple times they can issue
severe sanction

16
 a. The harshest sanctions should only be imposed when the disobedient party has
been grossly negligent or worse.
i. Also keep in mind: sanctions serve a purpose of general deterrence as
well as specific deterrence. So sometimes a court may give sanctions that
feel harsh for the particular situation in question
VIII. Applicable Law
a. Goal is to have vertical uniformity between state and fed courts in same state.
b. Which state?
i. Each state has choice of law rules that apply when a conflict could potentially be governed by the
law of more than one state.
1. Some states say where accident occurred, or which state has more interests
ii. Klaxon Rule- When a federal court is applying state law, they look to the choice of law rule of the
state they sit in – promote vertical uniformity but not horizontal uniformity for fed courts
iii. Rare exception (Mason):
1. If the choice of law points to a state that hasn’t addressed the issue in a long time and
would very likely update their old rule to match a modern trend, it’s possible the federal
court could choose to use the modern rule
2. Takeaway: the court doesn’t exactly ask what the state courts have said in the past;
instead, it asks what the state court would say in the present case.
iv. If in doubt, fed court can ask state court what their law is – certification.
c. State versus federal?
i. Sometimes, a federal court will be asked to resolve a state law question (e.g. if SMJ in the case
comes from diversity)
ii. When that happens, sometimes there will be both state and federal law addressing the same
issues.
iii. The question is: when the state and federal law overlap, which one should the court apply?
iv. That question is answered by the test developed through Erie and Hanna:
1. (note: that should be forum shopping OR inequitable administration of the law)
v. How do you know whether a federal directive is on point?
1. If it has a plain meaning, read it that way.
2. If not, read it w/ some sensitivity to state interests but not so much as to contort its
meaning. (Shady/Gasperini)
vi. Codified federal directives can include both federal statutes and the Federal Rules (via the Rules
Enabling Act)
1. If valid, preempts any state law bc supremeacy clause of constitution
2. When are Federal Rules valid?
a. Valid if the rule is procedural AND it doesn’t abridge, enlarge, or modify a
substantive right
i. Just has to be arguably procedural
ii. In making this inquiry we don’t care about whether the state
characterizes their rule as substantive or procedural; we care about what
these rules actually do, not how they’re labeled
3. When are statutes valid?
a. Valid if Congress had the Constitutional power to create the statute like regulate
interstate commerce, create the court system, and do everything necessary and
proper
vii. Bound up in substantive rights
1. Follow state law
viii. Lead to forum shopping or inequitable administration of law ex ante
1. Whether different rules would determine different outcome in a way that would make
people choose a different court at the start of case
ix. Federal policy was never talked about again after Byrd
d. Problems of ascertaining state law
IX. Adjudication Without Trial
a. Motion to dismiss for failure to state a claim (FR 12(b)(6))
17
 i. Well pleaded – do not assume legal conclusions, just LEGAL FACTS (Twombly Iqbal)
ii. the court assumes all of P’s factual allegations are true. Then it asks whether the alleged facts
constitute a claim
iii. if not, then dismissed – DO THIS BEFORE/DURING ANSWER.
b. Summary Judgment (FR 56)
i. A party may move for summary judgment up to 30 days after discovery has ended.
ii. On a motion for summary judgment, the court asks this question:
1. If this case went to trial, could a reasonable fact-finder ever find in favor of the non-
moving party BASED ON THE MATERIAL FACTS PRESENTED?
a. If the answer is no, then there’s no need to go forward with trial. Enter SJ
i. Like if D has affidavits and P has concussion and cannot remember and
there are no witnesses– no way to find facts
b. But if the answer is yes, then the fact-finder (usually a jury) needs to be allowed
to make their decision
i. Even if judge does not personally agree, has to be if a reasonable person
can see genuine issues of fact. Evidence on both sides
iii. When is summary judgment appropriate?
1. WHEN THERE IS NO GENUINE DISPUTE TO ANY MATERIAL FACT
a. Purpose/intentions ARE FACTS THAT NEED TO BE ESTABLISHED (cross)
i. So in a libel case has to have evidence to show false/reckless (Anderson v.
liberty)
b. So, if there’s no evidence supporting the party with the burden of proof, that
party loses
c. CAN USE CIRCUMSTANTIAL EVIDENCE!! (Adickes)
d. Has to be material facts – can’t say I dispute the color of the car in a traffic
accident bc color of the light is what matters
e. (DO NOT WEIGH THE EVIDENCE: JUST IF THERE IS ANY EVIDENCE)
f. Summary judgment is treated like a preview of the trial, so admissibility of
evidence is considered. If all you have is inadmissible evidence, it is disregarded
g. Importantly: affidavits count as evidence.
h. If there is obvious alternative explanation, needs decent evidence in more
ridiculous cases, more inclined to grant SJ for defendant (Matsushita v. zenith)
i. If there is unassailable evidence so reliable it is not subject to reasonable
contradiction, you disregard contradictory evidence (Scott v. Harris car chase)
2. Party that moves for summary judgement has to put on evidence – cannot say the other
side’s was not enough, have to show why (Celotex)
a. In the case that P is the only one with evidence and P moves for summary
judgment, D has to do something more than just say that the jury might
disbelieve P’s evidence. They need a basis, e.g. some reason why a witness might
be lying
iv. SJ is more efficient than going to trial bc scarce judicial resources – everyone tries SJ
v. Who has burden of proof?
1. Plaintiff has burden of production – enough evidence to raise a claim
a. Defendant must meet burden of production for affirmative defenses
2. Burden of persuasion
a. Plaintiff has to show preponderance of evidence, more likely than not.
3. Remember that if the evidence exactly equally supports both sides, then the party with
the burden of persuasion loses.
X. Trial
a. Right to trial by jury in federal court
i. The 7th amendment “preserves” the right to a jury trial as it existed when the amendment is
added in 1791
1. Note: 7A doesn’t apply to the states, but most state constitutions have similar provisions
ii. Generally speaking:
1. There is a right to a jury trial on a traditionally “legal” claim
18
 2. But there is no right to a jury trial on traditionally equitable claims
iii. How do you know whether a claim is legal or equitable?
1. Legal claims are for money damages, tort/breach of contract
a. Monetary remedies are traditional money damages if they are measured by P’s
loss
2. Equitable claims are for other remedies like injunction
a. What does plaintiff seek: if specific performance of contract, then equity
3. Don’t focus too much on the procedure that was used in 1791; the remedy is the biggest
factor in deciding whether there is a right to a jury trial
iv. Two part test (Chauffer)
1. 1. To what 18th century cause of action is this analogous: law or equity?
2. What is the nature of the remedy?
a. Discretionary
i. If money is entitlement – legal
ii. If money discretionary – equitable
b. Restitution – equitable – when defendant unjustly enriched by plaintiff
v. What do you do when there are claims of both law and equity in the same case? (Beacon)
1. The court must try the claims in an order that preserves the right to a jury trial; you
can’t try equitable claims first without a jury if the disposition of those claims or their
issues would preclude part or all of the legal claims
a. If the claims are related in that one impacts the other.
2. the legal claims must be tried by a jury before the equitable claims can be resolved.
Bc only get equitable remedy if remedy at law is inadequate.
3. Any legal issues for which jury trial is timely and properly demanded must be submitted
to jury, even if main case is equity. (Dairy Queen v. Wood)
vi. What does the 7th amendment say about new causes of action that didn’t exist in 1791?
1. SCOTUS says there are two factors:
a. Do a historical analysis and see if the new action is comparable to any old ones
b. Look at whether the remedy is legal or equitable
2. Where statute provides what is essentially a legal remedy, it is stil case at law even
though basis of case is statute which is considered equity – bc main remedy is the
determining factor (Curtis v. Loether)
3. But the Court says the remedy factor is more important, so it’s questionable whether the
historical analysis actually even matters – IF THE ESSENCE OF YOUR CLAIM IS LEGAL
EVEN IF USING HISTORICAL EQUITY PROCEDURE, IT IS A LEGAL CLAIM. (Ross v.
Bernhard)
4. What about declaratory judgments?
a. Ask whether the parties would have a right to a jury trial if the case had been
brought as a direct claim rather than as a claim for a declaratory judgment
vii. Cleanup doctrine (no longer valid)
1. Courts used to say that once they resolved the equitable claims in a case, they could then
“clean up” the legal claims without putting them before a jury.
2. That’s no longer allowed. Even small, incidental legal claims give right to a jury trial.
3. But: most states still follow this doctrine
4. Creates erie issues : suppose you have diversity case where law comes from state law but
in federal court – codified federal directive is 7th amendment so understood to abolish
clean up doctrine even if based on state law
viii. Judge versus jury: law or facts
1. In a jury trial how do you decide which issues go to the judge and which go to the jury?
a. Generally speaking, issues of law go to the judge and issues of fact go to the jury.
b. Comparative expertise - judge decides what the law is and instruct the jury on the
law, and jury finds the facts and applies the law to the facts. We want the law to
be uniform. So judge decides definition of negligence and jury decides based on
facts is there negligence under that definition
2. Sometimes it’s hard to tell whether an issue is legal or factual.
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 a. If it’s really ambiguous, then the court may turn to background considerations
such as:
i. Does the issue require the expertise of a judge?
ii. Is the issue one where reasonable minds could differ and you want a jury
to decide as a group?
3. What about factual matters that come up before trial (and before a jury has been
chosen)?
a. In that situation, factual issues can be decided by the judge
b. Those issues may be relevant to the merits of the case. And that’s ok.
c. If the judge chooses, they can defer decision on those pre-trial issues until after
the trial
4. If a jury makes a finding of fact, judge must enter judgement that follows the facts. – if
jury said defendant violated copyright, then just has to rule on injunction in a way that
does not contract what jury decided
b. Choosing a jury
i. Asserting the right to a jury trial (FR 38)
1. To demand a jury trial, a party must serve the demand on the other parties w/in 14 days
after the last pleading OR they must file it w/ the court
2. If a party misses this deadline, they waive their right to a jury trial (so you better decide
early if you want a jury or not)
a. But it’s still possible to ask the court to grant a jury trial by motion; it’s just that
the judge has the discretion to deny the request at that point
3. A party can demand a jury trial on specific issues OR (by default) on all issues – won’t get
them on all issues but ensures you get them on the ones you need
4. Under FR 39, the court can deny a jury trial if there is no right to one. And the court can
order a jury trial sua sponte even if it wasn’t demanded by a party
5. We don’t always like juries bc they’re slow, expensive, inconsistent, not trained, don’t
always do a good job.
ii. How many people sit on a jury in federal court?
1. 6-12 (FR 48)
2. The verdict must be reached by at least 6. So usually the judge will start it off bigger than
6 in case some jurors drop out for any reason
iii. Empaneling the jury
1. Venire - First, a preliminary group is chosen at random from the population – not
excluded by wealth, education, race, gender
2. Voir dire - the potential jurors are questioned by the judge and/or attorneys to decide if
they can act fairly in the case. Not really diverse when you choose 8 people from 100.
3. Attorneys can make 2 kinds of challenges to potential jurors.
a. For cause – personal involved/related to/ financial interest/ partiality is shown
i. Each party can make any number of challenges for cause
b. Peremptory -based on assumed partiality
i. Peremptory challenges are arbitrary. But they can’t be used on the basis
of race or gender.
ii. In federal court, each side gets 3
c. Judgments as a matter of law (FR 50)
i. JMOL is decided on the same standard as summary judgment. It works the same way but it’s
made at a different time. – not sufficient evidence to raise genuine factual dispute. Do not weight
the evidence.
1. SJ is before trial begins, could be denied and then JMOL granted bc saw the evidence at
trial, saw the arguments, and decision more clear
2. SJ before is all about saving money and resources. JMOL is about justice.
ii. There are two times a motion can for JMOL can be made:
1. FR 50(a): after the party moved against has been fully heard and presented all their
evidence, but before the jury returns a verdict
2. FR 50(b): after the jury returns a verdict
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 iii. In order to make a 50(b) motion after a verdict, the moving party MUST have made a 50(a)
motion before the verdict. It’s constitutionally required (Galloway)
1. Sequence of events:
a. Party A finishes their case in chief
b. Party B moves for JMOL
c. Judge reserves ruling on the 50(a) motion until after trial (doesn’t have to do so
expressly; 50(b) says that anything other than granting the 50(a) motion counts
as reserving it for after a verdict) (Slocum and Redman)
i. Don’t want to deprive jury of their 7th amendment rights
d. The jury returns a verdict for party A
e. Party B renews their motion for JMOL as a 50(b) motion
f. The judge either grants or denies it
d. Jury Instructions (FR 51)
i. First, the parties each suggest jury instructions
ii. The judge chooses instructions, and then the judge & the parties have a conference to talk about
them (51b1)
1. At this time, the parties MUST PROMPTLY raise any objections they have to instructions
they’ve been properly informed of
a. But: if the parties are later reasonably and legitimately surprised by the content
of the instructions they can object at that time
2. An objection here must clearly state:
a. Which instruction is being objected to
b. The grounds for the objection
3. If a party fails to make a timely objection, they can’t appeal the instruction unless there
was plain error (51d2)
a. Plain error is a high bar. Must be a clearly wrong to the point of being a
miscarriage of justice. High bar bc it was the attorney’s job to object
e. Verdicts and challenges to them
i. General
1. Only says two things: who wins, and what the damages are
ii. Special (FR 49(a))
1. Consists of responses to a list of factual questions
iii. General with answers to written questions (FR 49(b))
1. Consists of a general verdict along with answers to specific questions
2. What happens if the general verdict and the answers are inconsistent?
a. First: make sure they are really inconsistent. If they can be harmonized, they
must be.
i. Strong presumption: juries understand & follow their instructions (Duk v.
MGM)
b. The judge has 3 options (FR 49(b)(3)):
i. Ignore the general verdict & enter judgment consistent w/ the answers
ii. Direct the jury to keep thinking
iii. Order a new trial
iv. (so there is no option to enter judgement on existing general verdict bc
jury more likely to answer questions right with incorrect verdict bc
answers are about facts!!)
c. Special case: damages
i. Juries have a lot of discretion in calculating damages. They can consider
factors that might not be represented in the special questions.
ii. So it’s ok for the jury to choose damages different from what you’d expect
based on the answers to questions
3. Who decides which type is used?
a. The judge (w/ input from parties)
4. What about bench trials (no jury)? (FR 52)

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 a. The judge must find the facts specially (basically like a special verdict from a
jury)
b. Must also state their legal conclusions separately
iv. New trials (FR 59)
1. Standard of review: abuse of discretion, need more explanation than just “interest of
justice”
2. Verdict against the evidence
a. The judge can grant a new trial if they think the verdict is against the clear weight
of the evidence (Aetna)
i. Less stringent than JMOL, which is only granted if no rxable jury could
find for the non-moving party
ii. Judge can weigh evidence & consider its credibility
b. No new trials when it’s a close call. Only if the verdict is clearly against the weight
of the evidence. Let it be.
i. Also can’t say: I did not believe the witness. That is not the judge’s
decision.
3. When are errors grounds for a new trial?
a. Yes if:
i. The errors prejudiced the moving party in a way that would justify
reversal on appeal
b. No if
i. The errors were harmless (had no effect on the disposition of the case)
c. And if it’s somewhere in the middle, the judge has some discretion
4. Polling of jurors (FR 48(c))
a. After the jury returns the verdict but before they’re discharged, a party (or the
court sua sponte) can ask for a poll of the jurors
b. If the poll reveals something inconsistent w/ the verdict, the judge can order
more deliberation or a new trial
5. Jury deliberations (FR Evidence 606(b)(1))
a. When considering a motion for a new trial, the court cannot consider evidence of:
i. What happened in the jury room
ii. The way the jury reached their decision
b. Exceptions for evidence of:
i. Extraneous prejudicial information
ii. Improper outside influence
iii. Clerical mistakes in entering the verdict on the form
1. This one is very narrow. Only covers mistakes where they
intended to write one thing and actually wrote a different thing in
its place – like forgot a 0 in 400k.
2. Does NOT cover misunderstandings of the instructions
6. Problems w/ jurors that are only known after trial
a. Can only get a new trial if: (mcdonough)
i. The juror failed to honestly answer a question on voir dire, AND
ii. An honest answer would have justified a challenge for cause
7. Partial new trials
a. Sometimes the judge can grant a new trial just on specific issues
b. Specifically, sometimes liability will be clearly established but there will be
something wrong with the verdict on damages
i. So the judge will grant a new trial limited to the issue of damages
8. Conditional new trial: remittitur
a. If P wins and the judge decides their damage award is too high, the judge can
make an offer. P can either:
i. Accept a lower amount of damages, or
ii. Go through a new trial
b. Existed in the 18th century!
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 c. Same standard as regular new trials: the damage award must be against the clear
weight of the evidence
d. Some states allow judges to offer something similar to D when the damage award
is too low (it’s called additur)
i. But the 7th amendment prevents this in federal courts
ii. DID NOT EXIST IN 18TH CENTURY.
XI. Appeal
a. What questions do you have to ask?
i. What is appealable?
ii. What is reviewable?
iii. What is the standard of review?
b. Appealability and the time to appeal
i. If something is appealable:
1. Notice of appeal must be filed w/ the district court w/in 30 days after entry of the thing
being appealed from
a. But the time doesn’t start until the clerk enters the judgement in the record – that
day is day 0. (FR 58)
i. So if enter final judgment on June 2, that is day 0 and June 3 is day 1.
b. Final judgement is entered before attorneys/fees and costs, so if judgement on
issue then when that is entered into clerk record.
2. Exception: 60 days if the federal government or a federal employee is a party (assuming
the employee is participating in an official capacity)
ii. Default: the final judgment rule (28 U.S.C. § 1291)
1. As a default rule, the only thing that can be appealed from a district court is a final
decision
2. When is a decision final?
a. Only if there is nothing more to do on the issues the decision related to
i. Like Grant of summary judgment is appealable, but denial is not
b. Specifically:
i. Decisions that end the case entirely
1. Judgment, dismissal, etc.
iii. 5 Exceptions :
1. 54b: Discretionary interlocutory appeals about multiple claims
a. A district court may certify for appeal a decision on a particular claim within
multiclaim and or multiparty case
i. If P sues D claim count 1 tort, count 2 breach of contract, and court
dismisses count 2 but count 1 can go forward - that is not final decision!
b. No right to appeal but can ask District Judge to enter special certification that
appeal should be allowed
i. Discretionary to allow – main consideration is if the thing decided is
independent from the rest of the case
ii. If count 2 is sufficient distinct and doesn’t apply to count 1, then
appropriate
c. Cannot have certification on an issue – has to be a claim within a case
i. Liberty mutual – cannot be entered on issue, has to be a claim in a
multiclaim or multiparty case.
d. Court of appeals HAS TO TAKE IT. No discretion
2. 1292b: Discretionary interlocutory appeals about anything
a. Court can certify anything for appeal on ground that there is reasonable
argument on both sides, decision could be wrong and say I want a definitive
ruling before we go through on expensive trial
b. Double discretionary
i. Within court to certify for appeal
ii. And court of appeals has discretion whether or not to take the appeal
3. Collateral orders
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 a. Some things you can’t fix at the end after final judgement
b. if it is
i. separable from the merits of the case
1. merit of car accident is whoever is responsible, merit of
shoplifting is who is responsible but bail is separate.
2. separate – about something else
ii. important
1. important to ensure parties do not get cheated out of something
iii. AND unreviewable at the end
1. like bail or post security payment (Cohen v. Beneficial)
2. you can’t go back in time!
c. Discovery orders are NOT reviewable as collateral
i. Even though they may seem to meet the elements, the courts don’t like
reviewing discovery issues
4. Mandamus
a. Special writ of mandamus where you don’t like what district judge has done but
you can’t appeal bc interlocutory so you go to court of appeals and say I want a
writ to tell district judge to stop what it is doing!
b. When can you get it?
i. Generally, only in extreme cases where the issue can’t wait for a post-
judgment appeal
1. Can be used to challenge issues in discovery, which otherwise
may be hard to appeal (no interlocutory appeals of discovery
issues)
ii. More appropriate for purely legal issues
iii. Mostly happens when the trial judge has abused their discretion in an
extreme way
c. If you can convince court of appeals that district court has gone off the rails and it
is an emergency, they grant it.
d. Petition “in re Party Name” instead of using judge’s name
5. 1292a injunctions
a. The court must allow appeal of interlocutory orders having to do with
injunctions
i. Appealable if the order grants, continues, modifies, refuses, dissolves, or
refuses to dissolve or modify and injunction
ii. Preliminary injunctions
1. Used to put things on hold & prevent possible further harm while
a case moves forward
2. These are the ones you can make interlocutory appeals of
3. It has immediate impact on the party’s actions outside of the
courtroom.
6. Bonus: NY approach – final judgement rule is not in that state, most interlocutory
motions are appealable
c. Reviewability
i. Limits on what can be reviewed: have to have waited til the end AND
1. Must have preserved the issue at trial
a. I.e. raised an objection at the right time
b. Cannot sandbag – sit there and say nothing but if I lose I’ll get it reversed on
appeal. Not allowed anymore.
2. Must be prejudiced by the error TO THE PARTY APPEALING.
a. Courts will only grant relief if an error actually affected a party’s substantive
rights
i. Ask yourself: if the error were fixed, would that change the outcome of
the case in a way that better protects the party’s substantive rights?
1. If no, then the error is harmless and it’s non-reviewable
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 b. Harmless error types
i. Impossible the error had impact on the case – like bad juror not taken off
but juror got sick so wasn’t even on the jury
ii. It had impact but in favor of party who is now trying to appeal
iii. Already had opportunity to fix and evidence is overwhelming in favor of
other party – like already crossed that witness. (skogan)
d. Standards of review
i. Assuming you preserve it for review and it is prejudicial, to overturn it must be clearly
erroneous
ii. Comparative expertise
1. Questions of facts are reviewed deferentially
a. trial court/jury is expert on the facts but not on the law
b. like intent
2. Questions of law are reviewed de novo
a. We want the law to be uniform
3. Abuse of discretion review
a. Deferential – court of appeals says if we can see how reasonable person might
have done what District Judge did, we will affirm even if we find the opposite
XII. Preclusive effect of judgments
a. How do you assert preclusion?
i. Move for partial summary judgment on the issues/claims you think are precluded
b. Required quality of judgment in case 1
i. For case 1 to have preclusive effect at all, the judgment needs to be:
1. Valid
a. Any judgement other than default where either
i. Court lacked PJ over D
ii. Or D did not receive proper notice
2. Final
a. Same test as appealability
i. ALL claims in case must be resolved in a final judgment
b. If it’s on appeal you can get preclusive
3. On the merits
a. Case went to judgement on merits – after trial SJ or JMOL or
b. Parties had opp to reach merits but failed to use it – always late/didn’t file on
time so dismissed as penalty
c. Or D defaults
c. Claim preclusion
i. Who can be affected?
1. Only the parties to case 1 – or in privity
a. B/c the claim in case 2 couldn’t have been brought in case 1 if the parties in case
2 are different
ii. What is claim preclusion?
1. P in case 1 brought a claim. Now the same P wants to bring a claim in case 2 that’s related
to the subject matter of case 1. Are they barred from doing so?
2. Majority (including federal): TRANSACTIONAL TEST
a. In case 2, you cannot bring a claim that arose from the same facts as a claim in
case 1
b. Applies to transactionally related claims they COULD HAVE BROUGHT in case 1
c. With acceleration clauses – if mandatory clause where nay payment missed
means total amount is due, then you have to bring it all in case 1 but if
discretionary then you can sue multiple times for missed payments. (Jones v.
Morris)
d. Determined by the time, space, origin, motivation, convenient trial unit, business
understandings of usage.

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 e. Likewise, D must bring any compulsory counterclaims in case 1, cannot bring it in
case 2.
f. Very similar to FR 13 compulsory counterclaims:
i. If you can bring the claim in case 1 & it arose out of the same transaction
as another one of your claims, you gotta bring it in case 1 or else you lose
it for 41/50 states and federally
3. Minority: P can sue separately for each “primary right” that was violated
iii. Exception :Bonds – each is separate promise so separate cause of action.
d. Issue preclusion
i. Who can be affected by preclusion?
1. Traditional rule:
a. Only the parties to case 1, or those in privity
i. There is privity if and only if:
1. Acquired an interest affected by the judgment from a party to case
1, OR
2. Case 1 was litigated on this party’s behalf
2. Modern rule: if either party is new need both:
a. 1. Due process
i. Was party AGAINST WHOM PRECLUSION IS ASSERTED in case 1?
b. 2. Mutuality (now abandoned)
i. Was party asserting preclusion in case 1
c. Or does jurisdiction allow nonmutual defensive or offensive preclusion?
i. Is the preclusion defensive (asserted by D in case 2 against P who was a
party to case 1)?
1. Then preclusion is fine as long as P had a fair chance & incentive
to litigate the issue in case 1
2. So P suing D1 and losing and then P suing D2 – D2 asserts it
against P.
3. Allowed bc SCOTUS case Blonder Tongue
ii. Is the preclusion offensive (asserted by P in case 2 against D who was a
party to case 1)?
1. P1 sues D and P wins, so P2 sues D, P2 asserts against D.
2. Federal courts:
a. Yes, but it’s discretionary (Parklane)
b. Just ask whether it makes sense to allow in this case
3. State courts: Split on the issue
d. Who can you assert preclusion against?
i. Only parties to case 1
1. Allowing issue preclusion against anyone else would be a due
process violation (they didn’t get a chance to represent their
interests in case 1)
ii. What is issue preclusion?
1. An issue was decided in case 1. Can a party to case 2 assert preclusion on that issue?
2. Don’t have to worry about every single issue you need to anticipate like you do in claim
preclusion.
iii. Requirements:
1. Issue must have been actually litigated in case 1
a. Look at the extrinsic evidence/the record if you have any doubts about what was
litigated.
b. When are things not actually litigated?
i. Default judgment
ii. Any other situation where a party didn’t get a fair chance to litigate
2. Issue must have been actually AND necessarily decided in case 1
a. Special verdict/bench trial:

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 i. FLIPPING TEST: would the judgment be different if you changed the
outcome of this one issue? (Rios v. Davis)
1. If yes: then it WAS necessary to the judgment and it IS precluded
2. If no: it was NOT necessary to the judgment and thus it is NOT
precluded
a. Exception:
i. Normally, if the jury could have reached the
verdict based on either of two separate issues,
neither is precluded because neither one was
necessarily decided on its own.
ii. BUT: a small minority of states say that in this
scenario, both issues are precluded
b. In General verdict : what must jury have found to come to that conclusion?
i. Like if A sues B and finds B not guilty, then either A was contrib N and/or
B was N.
1. You don’t know so neither gets issue preclusion
ii. if A sues B and B is found guilty, so MUST HAVE FOUND THAT A can’t
have been contrib N and B must have been Negligent! - so that is issue
preclusion that B was N.
iii. Like in patent verdict – either found that use of fat liquor in treatment or
bark tanned lamb or both, since unclear, neither get issue preclusion.
iv. But if A s

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