Civil Procedures

I. Overview A. Analytical Framework 1. Personal Jdx. 2. Notice 3. Subject Matter Jdx 4. Venue 5. Erie Doctrine 6. Pleadings 7. Joinder 8. Discovery 9. Pretrial 10.Trial 11.Claim and Issue Preclusion II. Personal Jdx A. Overview PJ questions whether defendant can be sued in the forum state. Ct. must either have power over : (1) the defendant OR (2) the defendants property. (a)Types (i) In Personam Jurisdiction. The ability of a court to exercise power over a particular defendant. Limitless to the assets of the person, can satisfy an obligation to the full extent of the claim. general continuous and systematic contact (e.g. domicile) specific contacts arise out of contacts w/ the forum (i.e. minimum contacts)

(ii) In Rem Jurisdiction. Jurisdiction over a property within a jurisdiction. Used to adjudicate questions concerning ownership and control of such property. Liability limited to the property (iii)Quasi In Rem Jurisdiction. Jurisdiction over the property located within a forum. Can be used to service personal obligations (b)Limitations on Personal Jurisdiction Two Pronged Inquiry: (i) Statutory Limitations. States have the power to decide the limits of jurisdiction. As such, the first step should be to determine whether the state allows jurisdiction under its long arm statutes. (ii) Constitutional Limitations. Due Process Clause places two restrictions on personal jurisdiction, (1) contacts with the forum so that the exercise of jurisdiction is reasonable and fair and (2) defendant must be given property notice. No state shall deprive any person of life, liberty or property without due process of the law. Protects defendants from having to defend an action in a distant forum. Without this clause a plaintiff could force a defendant to defend a suit where he/she chooses. B. State Statuary Limitations on In Personam Jurisdiction 1| Page

 Each state has its own provisions. Typically based on the following four: (1) service of process, (2) domicile, (3) consent, (4) acts that bring defendant into forum via long-arm statute. (a)Traditional Basis service of process, domicile, consent (i) Pennoyer v. Neff Traditional basis for PJ. Judgment against Neff was void because (1) no service of processi.e. physical presence, (2) appearance in the actioni.e. consent or 3) domicile in forum. Therefore, the original judgment violated Neffs constitutional right to due process. A judgment void when rendered will always remain void. (ii) See also Hess v. Palowski Involved a car accident in MA by a PN resident who was traveling on a MA highway. SCOTUS held that by driving a vehicle in the State, D. implicitly consented to jdx and thus appointed a state official as agent for service of process. (iii)But see Burnham v. Superior Court Courts held that was permissible to obtain jurisdiction over an individual by serving with summons in the state where the suit if brought, even if the defendant is within the forum for reasons unrelated to the litigation or is only there briefly. California had jurisdiction over defendants under a tag or transient jurisdiction theory. Justice Scalias camp Tag jurisdiction comports with traditional notions of fair play and substantial justice, i.e., its always been fair to exercise jurisdiction under these circumstances Justice Brennans camp Tag jurisdiction comports with contemporary due process (i.e., the minimum contacts test) because defendant subjected himself to significant benefits provided by the State. Split Ct. raises questions of whether Intl. Shoe should replace Pennoyer

(iv)Exceptions Jurisdiction via service of process cannot be obtained through fraud as in Wyman v. Newhouse. Judgments obtained fraudulently are not enforceable. (v) Domicile Place of permanent home or in some cases citizenship (vi)Consent can be expressed (via contract or appointment of agent) or implied or through voluntary appearance. (b) Long-Arm Statute. (i) Unlimited Long Arm Statutes (broadest type e.g., CA, RI) Power over person and property to the limit of what is constitutionally permissible. Due process does not confer any jurisdiction on state courts; it only defines the outer bound of the permissible jurisdictional power. Limitations in Tort Cases, tort (malfunctioning product like in Gray) v. tortuous act (car accident). Issue when defining where the tort occurred. Gray v. American Radiator Radiator valve for water heater produced in OH, sold to Penn, and then resold to Ill., where it caused injury. Issue was that Illinois long-arm statute called for a tortuous act not tort injury for jdx. Ct. concluded that tort took place where a negligent act caused the injury. Other Cts. have viewed this as a strained interpretation.

(ii) Laundry List long-arm statutes e.g., NY or intermediate long-arm statute e.g., TX

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But See Feathers v McLucas (NY Ct.) disagreed with Gray interpretation and called for plain language read of its long-arms statute.

Limitations in contract/business cases, transaction of business in state. Issue whether physical presence is required.

C. Constitutional Limitations (i.e. Due Process) on In Personam Jurisdiction 1. International Shoe Minimum Contact AND Fairness. (a) Minimum Contact Test (i) Court will look for two main factors to analyze contacts requirements: (1) purposeful availment and (2) foreseeability (ii) Must show that a deliberate relationship, performed acts within the state, or derived benefit, so that the defendant should reasonably expect to be sued in forum. (iii)International Shoe holds that D. must have such minimum contacts such that exercising jdx. does not offend the traditional notions of fair play and substantial justice. Int. Shoe does NOT hold that D. may be subject to a states jdx simply because D. had some contact with the state. Claim must arising out of in-state activities. The latter is measured by the quality and nature of activities within the forum. Either (1) small number of contacts, but very related or (2) large number of contacts less related. Contact within a forum does not need to be continuous if Ds in-state acts demonstrate a deliberate effort to take advantage of the benefits and protection of the forum states laws, then the contact meets the minimum requirements laid out in Intl. Shoe.

(b)Refinement of Intl Shoe Test (i) Availment must be foreseeable World-Wide Volkswagen, Product purchased in NY and tort from accident occurred in another state. Claim dismissed b/c D. does not purposefully direct activities toward forum state and there was no reasonable expectation to be sued there. The foreseeability that is critical to due process analysis is not merely the likelihood that a product will find its way into the forum state, but the purposeful act of availment. Ct. chose a narrow view of personal jurisdiction, focusing on the scope of activities of the seller, not plausible area of use of the product by a buyer. Hansan v. Denckla, Ct. did not uphold jdx. b/c D did not solicit the contact with the forum state. Therefore, DE trustee did not have the minimum contact with the forum. Must be some act of purposeful availment via invoking the privilege of conducting activities within a forum that subject the actor to legal action within the forum. But see McGee v. International Insurance, distinguished from Hansan in that D. solicited insurance contract in CA. It didnt matter that the K was Ds only client in the state. D solicited the business and therefore was of a quality and nature needed for minimum contact.

(ii) Solicitation of business is indicative of availment

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(iii)Fairness Test must indicate grave difficulty such that D would be severely disadvantaged Burger King D had (1) substantial and continuing relationship with the headquarter office, the contact was solicited, (2) received fair notice that he could be subject to litigation in FL via K (3) THUS Ct. held exercising personal jdx did not offend due process. D. then argues that jdx. would be contrary to fairness principles. Ct. held that a defendant must present a compelling case before jurisdiction will be found unreasonable. Due process guarantees a forum, not necessarily a good forum. Calder v. Jones (effects test) D. publishes material that damages P. reputation in forum state. SCOTUS held that D may be subject to jdx where D causes an effect. D. does not have to set foot in forum. Asahi v. Superior Court Fact patterns on-going flow of the defendants goods into the forum state through distributor or final manufacturer. Held that that D, Asahi a Japanese company, was not subject to personal jdx in CA. However, the justices disagree on rationale: 1. OConnor Group (1) Asahi did not purposefully avail itself of CA b/c it did not make an active effort to service the mkt. e.g. market directly, advertise or design goods specifically for the market and (2) exercise of jurisdiction would be unfair and unreasonable (i.e., would not comport with fair play and substantial justice 2. Brennan Group (1) Agreed that jdx would be unfair and unreasonable (i.e., would not comport with fair play and substantial justice BUT (2) held that stream of commerce would be enough for jdx. (i.e. Brennan saw this as a case where fair play and substantial justice trumped purposeful availment b/c Asahi was a foreign country. (vi)Internet contacts can be sufficient depending on the level of interactivity, i.e. passive (providing internet service) and posting (making info accessible on internet) not sufficient. See CompuServe v. Patterson D subject to jdx in OH b/c he directed activity into the forum. K was w/ an OH company, specified OH law, D repeatedly sent software via internet there, advertized on OH system, and initiated events that led to the filing of the suit (making demands). Although Ds contacts were almost entirely electronic in nature, they were sufficient to support personal jdx. The contacts fell under the interactive category below. Intl. Shoe test also applies to quasi in rem Shaffer v. Heitner Ct held quasi in rem jdx would satisfy due process only if passes the minimum contacts test. Ds (officers and directors of Greyhound) lacked sufficient minimum contacts with DE and therefore dismissed for lack of personal jdx.

(iv)Do not need to be physically present in forum, only need to cause an effect

(v) stream of commerce, SCOTUS split

(vii)

2. Analysis for Exam (a) Flag whether one of the traditional basis applies (Pennoyer) (b) Note that we dont really know if Pennoyer is enough b/c of Burnam 4| Page

(c) Intl. Shoe (i) relevant contacts b/w D. and the forum purposeful availment foreseeability relatedness (1) Does Ps claim arise from Ds contact w/ the forum [McGee]? (2)If not, then will only work IF general jdx. burden is on D. to show that the forum is gravely inconvenient (1) inconvenient for D and witnesses, (2) states interest, (3) Ps interest, (4) efficiency interest, (5) interstate interest in shared substantive policies, B. Challenging Personal Jurisdiction 1. Default and then follow with collateral attack. That is to ignore the proceeding entirely. The danger in this is that the plaintiff will likely get a default judgment. The plaintiff may seek enforcement under the full faith and credit clause (Article IV of the Constitution) and if the plaintiff wins the jurisdictional argument, the defendant will have forgone his/her opportunity to defend the case on the merits. (a) EX: Wyman v. Newhouse 2. Special Appearance (state court) Allows defendant to challenge jurisdiction in court where jurisdiction is challenged without subjecting itself to power of the court. Defendant must be careful (under common law approach) not to raise any issues on the merits because the court can conclude that the defendant has waived his/her jurisdictional objection. In most states, a defendant to challenges jurisdiction and loses can appeal to a higher court even when forced to defend the case on the merits. 3. By motion or answer (federal court) Defendant must either file a motion to dismiss for lack of personal jurisdiction (Rule 12(b)(2)) or assert lack of personal jurisdiction as a defense in answering the merits of the case. The objection to jurisdiction must be raised immediately or it is lost. II. Notice A. Service of Process 1. Overview Adequate service of process is a due process requirement. If not met, the case can be dismissed. Purpose is to guarantee D. basic right of notice that a suit is filed against him and that a court intends to proceed to adjudication. Process consists of (1) summons directing defendant to respond or appear in court and (2) copy of the complaint Service formal means by which process is delivered and provides notice to defendant of lawsuit. Can be made by any non-party who is at least 18 (Rule 4) Shauffer v. Hynter (1) must attach BUT also (2) must make sure the D. meet Intl. Shoe test

(ii) fairness

2. Rule 4, Federal Rules of Civil Procedure, Summons 5| Page

(a) P. responsible for summons and complaint Rule 4 (c)(1) (b) Waiving service Rule 4(d) (i) Allows P. to mail the process and waiver form to D. (ii) Duty to avoid unnecessary expenses Rule 4(d)(1) (iii)If D. fails to return waiver, then P. must serve process AND D. may have to pay cost of service if refuses to waive process w/out good reason. Rule 4(d)(2)(B) (iv)Gives additional time to respond, 60 days instead of usual 20 days. Rule 4(d)(3) (c) Method of service for an individual (i) Rule 4(e)(1)Complying with state law; OR EX: Morton v. F.H. Paschen Inc. D. challenged service of process. P. served via certified mail, return receipt requested and argued it was sufficient under the states law. (ii) Rule 4(e)(2) Doing any of the following Delivering a copy of the summons and complaint to the individual personally Leaving a copy at the individuals dwelling or usual place of abode with someone of suitable age Delivering a copy of each to an authorized agent EX: Leigh v. Lynton Ct. quashed the case b/c D was served via wife in apartment/hotel she was staying in. Not his usual place or dwelling. EX: Triad Holding Corporation - Judgment against D. affirmed, even though he had several places of abode. Point was this was one of his places of abode and he actually living there. (d) Method of service for a corporation Rule 4(h) (i) Complying with state law; or (ii) By delivering a copy of the summons and complaint to an officer, managing or general agent, or any other authorized agent (iii)If the agent is one authorized by statute, then plaintiff also needs to mail a copy of the summons and complaint to the defendant. (e) Rule 4 (k)(1)(a) Serving a summons or filing a waiver of service establishes personal jdx over D. who is subject to the jdx of a court of general jdx [i.e., a state court] in the state where the D. Ct. is located. Basically this rule applies the same test for a Federal Ct. as the State Ct. (1) longarm statute and (2) constitutional limit. e.g. an AZ Fed. Ct. will exercise jdx. to the same extent as an AZ State Ct.

(f) Rule 4 (m) D. must be served within 120 days of complaint or the court will dismiss the action. III. Subject Matter Jdx A. Overview 1. Answers the question of what ct. can hear the case Fed. v. State Ct. 6| Page

2. Fed. Cts. have limited jdx, which State Cts. have general jdx. and can hear most types of cases 3. Article II 2 authorizes federal jurisdiction in cases between different states. 4. Rationale for fed. subject matter jdx is to protect an out of state citizens from the potential for prejudice in a local state courts when litigating against local citizens. B. Diversity of Citizenship 28 U.S.C. 1332 Dist. Ct. shall have original jdx. over all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive or interest and costs, and is between: (i) (ii) Citizens of different states; Citizens of a state and citizens or subjects of a foreign state;

(iii) Citizens of different states and in which citizens or subjects of a foreign state are additional parties; (iv) A foreign state as plaintiff and citizens of a state or of different states 1. Citizen of Different States (a) Complete Diversity Rule (i) No diversity if any P. is a citizen of the same state as ANY D. See Strawbridge v. Curtiss. (ii) Citizenship of an Individual is determined by: state of domicile (NOTE: an individual may only have one domicile) a person can change domicile by: (1) physically moving to a new state AND (2) forming an intent to make that state his/her new home. (See Mas v. Perry)

(b) Citizenship of a Corporation, 28 U.S.C 1132(c) (i) May have multiple citizenships (1) place of incorporation and (2) principle place of business (ii) PPB determined by two tests Nerve Center Test (home office; where officers direct, coordinate, and control activities) Bulk of Activity Test (where the bulk of the corporations activities take place) Use Bulk of Activities test unless activities are thoroughly dispersed. If dispersed, then use Never Center Test.

(iii)Unincorporated entities (e.g., partnerships, limited partnerships, labor unions, etc.) do not have a citizenship apart from the citizenship(s) of their members (iv)28 U.S.C. 1359 Parties Improperly/Collusively Made A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such a court. e.g., Kramer v. Caribbean Mills, Inc. Case involved a foreign company trying to sue another foreign company.

2. Amount in Controversy (a) must EXCEED 75K 7| Page

(b) P.s claim governs UNLESS it is clear to legal certainty that he/she cannot recover more than 75K. P.s claim is assumed to be made in good faith; the ultimate recovered amount is irrelevant. See Mas v. Perry. (c) Claims CAN be aggregated to meet diversity amount requirement when: (i) multiple distinct claims by 1 P. against 1 D. (d) Claims CANNOT be aggregated when: (i) alternative theories by single P. for the same injuries and damages (e.g., negligence and breach of warranty) (ii) claims by different Ps. (But see Exxon) unless joint claim (iii)Claims of 1 P. against multiple Ds. unless Ds. jointly and severally liable for total amount (e) Non-monetary Claims (i) value of the object test (Willaims v. Kleppe, injunction to invalidate antiskinny dipping) Value of what the plaintiff hopes to get from the suit. (ii) loss to defendant test (iii)pecuniary burden on defendant test if the defendant loses the case. B. Federal Question 1. Must Arise Under Federal Law (a) Citizenship is irrelevant and no amount in controversy requirement (b) Instead, must pertain to a dispute about federal law (c) 28 U.S.C. 1331The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States (i) Well Plead Complaint Rule the claim asserted in the plaintiffs complaint (i.e., stripped of any anticipated defenses) must be founded in federal law. A Wellpleaded complaint is limited to a statement of its own cause of action. in looking at a complaint, consider only the claim and not any anticipatory defense the claim is a federal question only if Ps claim requires proof of federal law, that is it is necessary to the elements of the plaintiffs claim. It isnt enough to refer to federal law in complaint, well-plead complaint rule Policy rationale involved. If the rule was broader, then a plaintiff could invoke federal jurisdiction simply by referring to federal lawe.g. via an anticipatory defense See Louisville & Nashville RR v. Mottley Ct held that it did not have subject matter jurisdiction because the federal claim at issue was an anticipated defense, not an element of Ps claim See Merrel Dow Pharmaceuticals, Inc. v. Thompson P. alleged negligence by pharmaceutical company. Cited Federal Drug and Cosmetic Act to support state law claim. P. wanted to prove state cause of action via federal standard. Ct. held the claim did not arise under federal law.

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But See Grable & Sons Metal Products P. claimed they didnt receive proper notice of seizure of property per federal law statute authorizing nonpayment of taxes. Ct. held there was federal subject matter jdx b/c P. could only establish its right to reclaim property by proving a proposition of federal law. The embedded federal issue needs to be substantial to support jdx.

C. Supplemental Jurisdiction and Exceptions to Jurisdiction 1. Overview Supplemental jdx will not get a case into Fed. Ct.; it gets additional claims into a Fed cases that is already in Fed. Ct. Involve cases where there are related suits with both a state and federal aspect (nondiverse party) or a defendants counterclaim to a third party. Unless the state law claim and the defendants claim have a basis for federal jdx, they will need to bring an additional claim in a state court goes to efficiency Supplement jdx aids this problem by allowing state claims that are so related to the claims in the action within the courts original jurisdiction that they are part of the same case or controversy under Article III of the Constitution.

2. 28 U.S.C. 1367 Supplemental Jurisdiction Rules (a) 1367 (a) (Federal & Diversity Claims) When Dist. Cts. have original jurisdiction over a claim, they also have jurisdiction over supplemental claims that are so related that they form part of the same controversy under Article III. Include claims that involve the joinder or intervention of an additional party. Gibbs/overturns Finnley (i) See United Mine Workers v. Gibbs SCOTUS held that it was appropriate for the lower court to exercise pendant jurisdiction over plaintiffs state law claim because the claims were so closely related that they comprised but one constitutional case. The state and federal claims must derive from a common nucleus of operative fact. Holding of Gibbs was later codified in 28 U.S.C. 1367(a) (b) 1367 (b) (Limits ONLY for diversity cases) Doesnt allow supplemental jurisdiction when inconsistent with diversity rules. (i) Owen Equipment v. Kroger Plaintiff (Iowa) sues electric company (Nebraska). Electric company impleads Owen. Kroger then asserts a direct claim against Owen. Ct. held federal subject matter jurisdiction would be inconsistent w/ diversity requirement. Since Kroger couldnt sue Owen in an original claim. He cant do so because the defendant impleads a third party. (ii) Exxon Mobil Corp. v. Allapattah SCOTUS resolved a split between the circuits regarding the exercise of supplemental jurisdiction over plaintiffs in a diversity action whose claims do not, on their own, satisfy the amount in controversy. Holds that as long as one plaintiffs claim satisfies the amount in controversy, supplemental jurisdiction can be exercised over claims of other plaintiffs as long as they are part of the same case or controversy (c) 1367 (c) (Ct. may decline Jdx) May decline if (1) novel or complex state law issue, (2) new claim dominates, (3) all original jurisdiction claims are dismissed, (4) other exceptional circumstance. (i) Acriv. Varian Assoc. Court held that once court determines whether it has supplemental jurisdiction over a claim, it is not required to assess sua sponte 9| Page

whether it should decline to exercise that jurisdiction under 1367(c). Dissent argues that, under Gibbs, principles of comity and federalism demand consideration of these factors each time a district court confronts claims brought under it supplemental jurisdiction 3. On Exam (a) Does 1337(a) grant supplemental jdx over this claim? YES if meets Gibb, i.e. common nucleus of operative facts. (b) Does 1337(b) take away subject matter jdx.? (i) only applies in diversity cases (ii) only takes away supp. jdx. over claims by P. (iii)only takes away supp jdx. for certain claims. by P. against parties joined by Rule 14,19,20, 24 AND by rule 19 Ps 1. Rule 14 = third party joinder 2. Rule 19 = compulsory joinder 3. Rule 20 = permissive joinder 4. Rule 24 = intervening party D. Removal 1. Overview gives D. the chance to pick the forum comes up when D. is in State Ct. and D. wants to have it removed to Fed. Ct. Can only go from State Ct. to Fed. Ct. someone seeking to intervene as P. (c) Any reason under 1367 (c) not to hear the case???

2. Removable (a) Must evoke fed. jdx (1) diversity OR (2) fed question, 1441 (a) (i) CANNOT remove a diversity case if ANY D. is a citizen of the forum, 1441 (b). Rationale is that, in this case, there is no need to protect from local prejudice. (ii) Rule does not apply to a fed question case (b) D. must file a notice of removal in Fed. Ct. All Ds who have been served must join in notice of removal. 1446(a) (c) Notice of removal must be filed within 30 days of receiving the pleading or other papers upon which removal is based. Diversity cases may not be removed more than one year after suit is filed can remove ONLY to Fed. Dist. Ct. that embraces the state Ct. where it was filed, 1446(b) (d) If Plaintiff opposes removal, must file motion to remand, 1447 (i) Caterpillar Inc. v. Lewis Diversity case. D. filed notice of removal around the one year maximum mark. There was NO diversity when the notice of removal was filed. However, there was diversity when the judgment was rendered. SCOTUS 10 | P a g e

stated that the Dist. Ct. should have remanded the case for lack of diversity, but that the error was not fatal to the adjudication since there was diversity at the time of judgment. II. Venue and Forum Non Conviens 1. Generally (a) Convenience of the Court (i) Ct. may have personal and subject matter jdx. over D., but it may be an inconvenient and inefficient place for the suit to be litigated. (ii) Note we are primarily concerned with the convenience of the forum for D. The latter must raise the venue question when responding to Ps complaint (i.e. in answer), otherwise it is waived. (b) Compare to Personal Jurisdiction (i) Like personal jdx., objection to venue may be waived (ii) Unlike personal jdx, improper venue does not necessarily result in case being dismissed; Ct. may instead transfer to a proper venue. (c) Forum Non Conveniens, or inconvenient forum (i) Common law doctrine that preceded modern venue provisions. Allowed Cts. to dismiss an action (even though the Ct. has personal jdx over D) so that the action can be brought in a more appropriate forum. 2. Venue Rules, U.S.C 1391 (a) Two Choices (1) where all Ds. reside OR (2) ANY district where a substantial part of the claim arose. (i) 1391(a) (diversity cases) (1) where any defendant resides, if all defendants reside in the same state, (2) where claim arose, OR (3) a district where any D. is subject to personal jdx at the time the action commenced, if no other appropriate district. (ii) 1391(b) (fed question cases)- 1) same (2) same, or (3) judicial district where any defendant may be found, if no other district appropriate for the most part reside means domicile (iii)1391 (c) (corporations residence defined) Resides is any place D. has personal jdx. If the forum state has multiple districts, look where there are sufficient contacts for personal jdx. If no such district exists then look to most significant contacts.

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(b) Transfer of Venue 1404 (discretionary) & 1406 (mandatory) (i) moves a case w/in judicial system (ii) Under provisions, the transferee (1) must be a proper venue and (2) must have personal jdx. over D. BOTH must be true w/out waiver by D. (Hoffman v. Blaski) Hoffman v. Blaski D. was charged for patent infringement in N. Dakota where he resided and where the alleged infringement occurred. D. moved to transfer where P. resided (no reason for this mentioned by Ct.). Ct. held that the transfer was improper b/c it was not one of the places where the claim might have been brought.

(iii)1404(a), discretionary. Even if venue is proper under 1391, court MAY transfer action to any other Dist. where the case might have been brought for (1) convenience of parties and witnesses or (2) interest of justice. (iv)1406, mandatory. IF venue is improper under 1391, court MUST either (1) dismiss or (2) transfer to court where the case could have been brought (if in the interest of justice) 3. Cases (a) Piper Aircraft Co. v. Reyno Case arising from plane crash in Scotland. Plaintiff filed suit again plane manufacturer (no real evidence of defective equipment) in CA and transferred to PA. Piper moved to dismiss for forum non conveniens (wanted complaint in Scottland). Introduced Balancing Test. (1) availability of proof, (2) compulsory process, (3) jury view of premise, (4) expense of trial, (5) public interest and (6) interest of the plaintiff. Ct. held favorableness of laws for plaintiff not to be considered. III. The Erie Doctrine A. Overview Comes up in diversity cases where Fed. judge must decide an issue and the question is whether state law must be followed Fed. judge must apply State substantive law under: (1) X Amendment and (2) Rule of Decision Act

B. State Substantive Law 1. Pre-Erie: Laws of Several States in a Trials at common law (a) Swift v. Tyson interpreted Rules of Decision Act to mean that a federal court can determine the federal common law or general law in its quest to discover the appropriate law. 2. Erie solidified rule that state substantive law must be applied in diversity cases (a) Erie RR v. Tompkins Case brought in diversity for a tort, e.g lost his arm. Tompkins was a PA citizen; incident occurred in PA. PA law would not support liability for trespasser. Cir. Ct. applied Swift v. Tyson, which would allow a general common law standard and result in judgment for plaintiff. (i) SCOTUS overruled Swift v. Tyson and held that, in a diversity case, federal district courts must apply state substantive law, not federal common law or general law. As such, the Cir. Cts. actions in applying Swift standard were 12 | P a g e

unconstitutional. That is, they surpassed the Cts mandate from merely adjudicating the law to determining the law. (ii) Court based its decision on (1) irrational discrimination in results between diverse and non-diverse litigants, (2) encouragement of forum-shopping and (3) unnecessarily frustrated the deliberately chosen policies of the state, Federal-state conflicts C. Substance-Procedure Distinction 1. Federal Cts. follow Federal Procedural Law (a) Authority to determine practices and procedures within the federal court system comes from Congress. (b) Rules Enabling Act 28 U.S.C. 2072, provides that the Supreme Court shall have the power to prescribe general rules of practice and procedurefor cases in the [federal courts]. But, rules shall not abridge, enlarge or modify any substantive right. The Federal Rules of Civil Procedure were adopted in 1938 and are amended pursuant to this Act. 2. Outcome Determination Test If a rule is outcome determinative, i.e., likely to make a difference in result, it was probably substantive. e.g., Guaranty Trust Co. v. York (a) Guaranty Trust Co. v. York (diversity case) York sued D. for breach of fiduciary duty. York lost on application of New York statutes of limitations grounds. Under federal law, York could still bring the claim. York argued should apply the federal rule. SCOTUS held that New York law should apply because Erie required that the outcome under both state and federal should be the same, i.e. a diversity plaintiff shouldnt have an advantage simply because the case was brought in federal court. 3. Interest Balancing Approach Court balances the state and federal policies underlying the rules in question e.g., Byrd v. Blue Ridge & Ragan (a) If the states policy is important, and the federal interest is slight, more likely that the state rule will be enforced (i.e., rule will be considered substantive) e.g., Ragan v. Merchants Transfer & Warehouse Co. Ragan v. Merchants Transfer & Warehouse. Related to the difference in standards for service of process under Kansas v. Federal Procedures. SCOTUS held that the claim was barred and KS law should apply because it is an integral part of KS statute and should be given effect. (b) If the federal governments policy is important, and the state interest is slight, more likely that the federal rule will be enforced (i.e., rule will be considered procedural) E.g., Byrd v. Blue Ridge Rural Electric. Byrd v. Blue Ridge Claim regarding employee compensation and Ds alleged status as a statutory employer. The latter would give D. immunity against negligence. State process would be for the judge to make the determination of the employers status. The federal process is via jury. SCOTUS held that the federal procedure would prevail because there is no clear certainty that a different result would follow from a judge v. jury. Noted the federal systems interest in maintain its system to distribute trial functions between judge and jury. 4. Deference to a Controlling Federal Rule When the substance-procedure distinction is ambiguous, there should be deference to controlling provisions in the Federal Rules E.g., Hanna v. Plumer (service of process) 13 | P a g e

Hanna v. Plumer Auto accident case. D. was dead and executor of estate was named D. Summons served to the executors residence and complied with federal civil procedures. Mass. law called for in hand delivery of summons. Cir. Ct. looked to Ragan and decided the policy was important b/c the legislature had just amended it. SCOTUS held that Cts. should look to the twin aims of Erie, that is (1) to discourage forum shopping and (2) avoid inequitable administration of the law. 5. Policies of Erie Approach Must look to the policies of Erie to determine whether rule is actually substantive or procedural. If application of the rule would (i) produce irrational differences in results and (ii) encourage forum shopping, the matter is substantive; if not, its procedural. e.g., Hanna v. Plumer (service of process) D. Determining What the State Law Is 1. Conflicts of Law - Issue arises when there is a diversity claim and there is a question of which state law applies (a) Lex Loci Delicti (law of the place of injury) v. Most Significant Relationship Test (i) Pennington v. Dye Couple from OH in car accident in FL. Wife sued husband for injuries under negligence claim. She filed in FL where lex loci delicit was traditionally followed. Ohio would bar the claim on the basis of inter-spousal immunity. Ct. held that the most significant relationship should trump lex loci since both parties were domiciled in OH. (b) Choice of law where suit is filed (i) Klaxon Co. v. Stentor Electric Case arose from a breach of contract in New York. Ct. of Appeals should apply. SCOTUS reversed holding that the Ct. must follow the choice of laws principle of DE where the action was brought. E. The Erie Educated Guess Issue goes to which law to apply when the law on point is questionable, e.g. case of first impression or conflicting rulings (a) Follow Decision of the Highest Court (b) OR determine plausible Decision the Highest Court (i) Factors ETC. Inc. v. Pro Arts Inc. Case involved the right of publicity of Elvis Presley. D. contended that rights did not survive the personalitys death. TN law did not have any guidance. Case was in the 2nd Circuit. Looked to the 6th Circuit for guidance since it had heard a relevant case and TN also has jurisdiction on TN cases. 2nd Circuit did not recognize the property right. (2nd Circuit case based on privacy of an individual) (ii) Commerce Union Bank v Coors Lower court ruling involving the right of publicity of a deceased country star. The Ct. granted injunction. (iii)Factors ETC. Inc. v. Pro Arts Inc. After Union Bank decision the prior case was on remand from 6th Circuit decision to district ct. Ultimately stayed judgment to allow P. to petition 6th Circuit to recall mandate and rehear case. F. Framework for Erie Analysis on Test Ask whether a federal law is on point? (a) If YES apply the federal law as long as valid 14 | P a g e

See Hanna v. Plumer regarding federal rule 4 service of process (i) Validity Test, look to the Rules Enabling Act (b) If NO then must follow state law IF substantive (i) Substantive Test: Outcome Determinative If the state law is ignored will the outcome be different? Guarantee Trust v. York in that case, if state law applied then the claim would be barred by statute of limitations. The Ct. has not followed this test since York. Problem with the test is that everything can be view as substantive. Interest Balancing Test Does the federal system have a particular interest in applying the federal standard? Bryd v. Blue Ridge state law would have had jury review a particular issue. SCOTUS held that the federal system had an interest to use its own procedure Twin Aims of Erie Ask whether if federal judge ignores this state law, will people flock to the federal court system 1. Avoid forum shopping 2. Avoid inequitable administration of the law IV. Pleadings Complaint Service w/ Process A. Historical Origins 1. Common Law Pleading - highly technical; forms of action; distinguished between law and equity 2. Code Pleading abolished forms of action and distinction between law and equity; must plead a cause of action; must plead facts (not legal conclusions or evidence) B. Rule 8 - Notice Pleading , Liberal standard 1. Claim for Relief Rule 8(a) A pleading that states a claim for relief must contain: (a) a short and plain statement of the grounds for the courts jurisdiction (b) a short and plain statement of the claim showing that the pleader is entitled to relief; and (c) a demand for the relief sought, which may include relief in the alternative or different types of relief. 2. Purpose is to give the respondent notice of the basis of the claim. (a) Conley v. Gibson SCOTUS reverses the dismissal of the complaint for failure to state a claim: the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (Also Dioguardi) This is an extremely liberal standard; It is very difficult to prove that pleading is insufficient

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(b) Bell Atlantic Corp. v. Twombly. Putative class action against incumbent local exchange carriers. The plaintiff is all subscribers (i.e. customers). Charge was they the ILECs inflated prices and violation of Sherman Act, unreasonable restraint of tradeby contract, combination, or conspiracy. Evidence was that the ILECs all acted the same way, i.e. same prices, therefore there must be an agreement to conspire. Problem was that the plaintiffs gave a conclusion with no supporting facts. Yet, the supporting facts in this case would be hard for the plaintiff to get w/out discovery. SCOTUS basically said we didnt mean what it seems we said in Conley. Once a claim has been states adequately, it may be supported by showing any set of facts consistent w/ the allegations. 3. Twomblys Particular Set of Fact. At present, there is some confusion as to when a court should require particular facts to be pled, as required by Twombly, and when a court should apply a more liberal pleading standard. Twombly held that in some cases, P must plead particular facts in their complaint. Recent cases indicate that specific facts are not always required. Twombly itself suggests that its holding may be limited to cases likely to produce sprawling, costly, and hugely time-consuming litigation. However, Iqbal continues to raise the question of what standard the Ct. intends. (a) Ashcroft v. Iqbal SCOTUS held that pleadings that are no more than conclusions are NOT entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. (i) Complaint must state a plausible claim for relief (ii) context-specific task (iii)SCOTUS rejects the notion that Twombly applied only to antitrust actions C. Special Pleadings - Rule 9(b) 1. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. (a) special damages require specificity, something that would not normally flow from a normal event (b) Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally. 2. Rule 9(b) is referred to as a heightened or special pleading standard. (i) Sweeny Co. v Engineers P. alleged that D. fraudulently induced him to do work even though the D. knew he wouldnt pay him. Didnt sue for breach, wanted punitive. D. filed motion to dismiss for failure to state a claim (Rule 12(b)(6)) and it was granted. Ct. gave P. chance to amend. Ct. held that P. needs to include time, place and content of the false misrepresentation and what was gained or given up as a consequence of the fraud. D. Plaintiffs Reply to Cross-claim or Counterclaim Rule 7 replies to counterclaim or cross-claim must also be filed Rule 7(a)(3), otherwise replies are not allowed UNLESS ordered by the court Rule 7(a)(7) Some jdxs require P. affirmatively to plead matters that he plans to offer to overcome Ds affirmative defense e.g. breach of contract, SoL, should be tolled? E. Answer Defendants Response 16 | P a g e

1. Timeframe, i.e. deadline (a) Generally responsive pleading (answer) must be served within 20 days after being served with a summons and complaint (Rule 12(a)). (i) But see Rule 12(a)(4) for rule on motions a motion is not a pleading; an answer is a pleading a motion is a request for a court order (e.g. 12(e) motion for more definitive statement), 12(b) motion to dismiss, can be raised either in a motion or answer) responsive pleading postponed until 10 days after Ct. response or after more definitive statement is served

(b) a party must serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time.

2. Admission and Denial Rule 8(b) (a) Federal Approach (i) D. must respond to each allegation in complaint by admission or denial (ii) FAILURE TO DENY is an admission on anything asserted by P. except damages White v. Smith P. asserted habeas corpus complaint. D. submitted form answer more in line w/ a general denial. Ct. held that sanctions were appropriate under Rule 11, but gave them one more chance. Ct. stated that it would have been proper for D.s pleading to have been stricken w/ case going forward w/out response (basically an admission).

(b) General Denial (only allowed by some states) (i) No particular form required; the answer needs to make clear that D. generally denies the allegations 3. Affirmative Defenses Rule 8(c)(1) (a) D. MUST RAISE affirmative defense in answer; can be waived so MUST assert in response pleading (b) in an affirmative defense, the D. is injecting a new fact and if D. is right, then D. wins the case (e.g. statute of frauds, statute of limitations). (c) Rule 8(c) includes a non-exhaustive list of several affirmative defenses (e.g., assumption of risk, estoppel, statute of limitations, etc.), which must be set forth in the responsive pleading (d) An affirmative defense adds new facts that defeat the claim even if the plaintiff proves all elements. Generally, the party asserting an affirmative defense has the burden of proving it 4. Seven Rule 12(b) Defenses every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required, but a party may assert certain defenses by motion. 1) 17 | P a g e lack of subject matters jdx;

2) 3) 4) 5) 6) 7) 8)

lack of personal jdx; improper venue; insufficient process (i.e. summons & copy of complaint); insufficient service of process; failure to state a claim upon which relief can be granted; and failure to join a party under Rule 19 A motion asserting any of these defenses must be made before pleading IF a responsive pleading is allowed Rule 12(b)(2-5) MUST be put in first Rule 12 response, otherwise waived Rule 12(b)(6-7) can be raised ANY TIME during the trial, but not appeal. Rule 12(b)(1) can be raised ANY TIME during the cases, even on appeal.

(i) Rule 12(b)(6) Failure to state a Claim Motion in deciding on motion a Ct. MUST: (1) not consider anything outside of the pleadings, (2) accept all wellpleaded facts as true, and (3) view the facts in the light most favorable to the plaintiff. IF dismissed may get a second chance b/c dismissal is w/out prejudice these standards were not changed by Twombly/Iqbal Patridge v. Two Unknown Police Officers Fact pattern of case is like Twombly except that the plaintiff provided sufficient support to the conspiracy type claim. P alleged that the Houston police department had a policy of denying medical care to detainees. The facts alleged were sufficient to support the claim. It wouldnt have been enough to just cite the experience of their sonhad to show that the custom of inadequate care was persistent and widespread. A party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Same standard as Rule 12(b)(6) motion If court considers evidence outside of pleadings, converted to a summary judgment See Rule 56 on summary jdgmt Party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response Must be filed BEFORE the responsive pleading Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter

(ii) Rule 12(c) Motion for Judgment on the Pleadings

(iii)Rule 12(e) Motion for More Definite Statement

(iv)Rule 12(f) Motion to Strike

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Court may act on its own or on motion brought before responsive pleading is filed

EX: Fox v. Lummus Company Plaintiff sues his employer for breach of contract by unjustly withholding salary and by denying plaintiffs holiday leave and in other ways harassing him. Defendant moves to dismiss under : 1. 12 (b)(6) failure to state a claim. (i.e. didnt show breach, facts consistent w/ K) 2. 12 (e) give more definite statement of the forth claim (harassment) 3. 12 (f) motion to strike on pain and suffering charge (didnt allege tort) Needed some facts to show that there was some sort of implied contract outside of the written contract, i.e. that he was promised $$$ from taxes if not paid. Or show unjust enrichmentD. cant say that he wasnt compensated, but should the employer reap the benefit or no taxes. F. Reasonable Inquiry Standard Rule 11 Subjective Bad Faith Standard (before 1983) (a) provided that the attorneys signature on a pleading automatically constituted a certification that attorney believed that there was good ground to support the claim (b) Standard was vague and subjective (c) rare that a violation could clearly be established Reasonable Investigation (1983) (a) Attorney who filed pleading without reasonable investigation was subject to mandatory sanctions (b) attorneys signature implies that to the best of the persons knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the allegation have evidentiary support (or are likely after discovery), and are warranted under existing law. (or by a nonfrivolous argument for a change in existing law). (c) The rule sets for an objective/ negligence like standard (d) An attorney acting in ignorance of the facts and law that would be disclosed by a reasonable investigation cannot take refuge in good faith or purity of heart alone. (e) too draconian EX: Eastway Construction v. City of New York P. was excluded from bidding on NY city contracts after bad conduct by officers (bribes and defaults). The exclusion put P. out of business. P. then brought action. Ct. granted summary judgment for D. b/c there was no basis for the claim. D. moved for sanctions on the basis that it had expended public funds on a frivolous claim. Ct. of App. remanded to trial ct. w/ orders to impose appropriate sanctions. New version of Rule 11 means that : (1) no longer enough for an attorney to claim that he acted on good faith, (2) where is it patently clear claim has no chance of success and no reasonable argument and (3) a competent attorney would come to the same conclusion. Reasonable Investigation with chance to cure (1993)

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(a) Same standard as 1983 version, but (i) requires notice and opportunity to cure, and (ii) sanctions are discretionary (b) 21-day safe harbor provision gives a party the opportunity to withdraw the pleading before a sanction motion is filed (c) SCOTUS dissenting opinion argued that the revision made the rule toothless. (d) Rule 11(b), sanctions may be imposed for later advocating a position w/out sufficient basis even though there was sufficient basis when the claim was filed (e) Rule 11(c)(4) sanctions limited to (1) what suffices to deter repeat conduct or (2) comparative conduct by others. Court MAY issue monetary or non-monetary sanctions (f) Rule 11(c)(1) law firms may be held liable for violations on an individual attorney (g) Rule 11(c)(5)(A) limitation on sanctioning represented parties for frivolous legal argument (h) Result of the amendment has been a decrease in Rule 11 motions (i) Hadges v. Yonkers Racing New version makes clearer that an attorney is entitled to rely on the objectively reasonable representations on the client G. Amendment Rule 15(a) Amendment b/f Trial a party may amend its pleading once as a matter of course: (a) Before being served w/ a responsive pleading (b) W/in 20 days after serving the pleading IF a responsive pleading is not allowed and the action is not yet on trial otherwise, a party may amend its plead ONLY IF: (a) opposing party gives written consent OR (b) Ct. grants leave (shall be freely given where justice requires) Rule 15(c) relating back An amendment to a pleading may relate back to the date of the original pleading when: (a) the law providing SoL allows a relation back, (b) Amendment asserts a claim or defense that arose out of the same facts in original pleading, OR (c) Amendment changes the party and, within 120 days from service of the original pleading, the party to be added (i) received notice and will not be prejudiced; and (ii) knew or should have known is was the correct party. (d) Schiavone v. Fortune, aka Time Time agent refused service of process b/c Time itself was not named as D. P. argued that under Rule 15(c) the amendment related back to the earlier filing, which conceding had been made w/in SoL. Ct. held that relating back depended on four factors: (1) basic claim must have arisen out of the conduct set forth in the in the original pleading, (2) party to be brought in must have received such notice, (3) party must or should have know that, but for the mistake 20 | P a g e

the action would have been brought against it and (4) 2nd and 3rd requirement must have been fulfilled w/in prescribed period. Linchpin is notice. SCOTUS held for Time b/c they didnt know about the claim until AFTER SoL had run. V. Joinder A. Overview tells us how many claims Rule 18 permissive joinder of CLAIMS Rule 20 permissive joinder of PARTIES for every claim ask (1) can it be joined (2) is there subj. matter jdx.? (3) IF NO is there supplemental jdx?

B. Claims Joinder by Plaintiff 1. Rule 18(a) P. can assert ANY claims against D. as long as (1) arise out of the same transaction and occurrence AND (2) there is a common question of law (a) may aggregate 2. Rule 18 allows for liberal joinder of claims (a) A party asserting a claim, counterclaim, crossclaim, or third-party claim may joinas many claims as it has against an opposing party. (Rule 18(a)) (b) While the language of Rule 18 is permissive, certain claims must be asserted or the party will not be able to assert them in a subsequent lawsuit based on preclusion principles e.g., claims that arise out of the same transaction or occurrence C. Claim Joinder by Defendant 1. Counterclaim Rule 13(a)/13(b) claim brought against an opposing party (file w/ answer) (a) two kinds: (i) compulsory 13(a)(1), arising from the same transaction or occurrence must be asserted in this case cannot do it in another case, otherwise waived

(ii) permission (13)(b), not related to the original claim [NOTE: 1336(b) is NOT AT ISSUE b/c jdx is only taken away IF claim is by P.] (d) ON EXAM: 1. Why is it a compulsory counterclaim? 13(a)(1) 2. Why not Fed. Question? 3. Why not diversity? 4. Why does 1367(a) grant subj. matter jdx.? Gibbs, same T/O, nucleus of common facts 5. Why doesnt 1367(b) not take it away? (i.e. made by D., not P.) 2. Cross-claim (Rule 13(g)) claims brought against a co-party

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(a) Maybe brought if claim arises out of the transaction or occurrence that is the subject of the original action (i.e., always permissive) D. Third-Party Impeader Rule 14 The only person that can use Rule 14 is a defending party Comes up when the third party may be liable to D. for the underlying claim [for which he/she is being sued] (a) non-party is or may be liable to defendant for all or part of the claim against the defendant; (b) once third-party is in it can bring in another party, but that D. must be liable to it. (c) and 10 days or less have passed since defendant filed its original answer (d) if more than 10 days, court must grant leave (i) Barab v. Menford Barab slips on a doormat and sues Menford, retailer, for injuries. Menford impleads Channel Home Center as the supplier of the doormat. Channel attempts to implead Joy Plastic, but the Ct. does not it allow it under Rule 14 because Joy would arguably be liable to the Plaintiff, not the Defendant. 2. Rule 14(b) (a) when claim is asserted against a plaintiff, it may bring in a third party if this rule would allow the defendant to do so E. Permissive Joinder Rule 20 1. Rule 20(a)(1) persons may join in one action as plaintiffs IF: (a) they assert right to relief that relates to/arises out of the same transaction, occurrence, or series of transactions or occurrences; and (b) any question of law or fact common to all plaintiffs will arise 2. Rule 20(a)(2) persons may be joined in one action as defendants IF: (a) any right to relief is asserted against them that relates to/arises out of the same transaction, occurrence, or series of transactions or occurrences; and (b) Any question of law or fact common to all defendants will arise (i) Gorgan v. Babson Case where P. sought to join D. that would destroy diversity. Ct. looked at whether or not the P. was joining for the purpose of joining. Held that D2 could be joined. F. Compulsory Joinder Rule 19 1. A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined if: (a) In his absence, complete relief cannot be accorded among the existing parties (Rule 19(a)(1)(A)) (b) He claims an interest relating to the action and is so situated that deciding the case in his absence may 22 | P a g e

1. Rule 14(a) defending party may sue (or implead) a non-party if:

(i) as a practical matter, impair or impede his ability to protect that interest (Rule 19(a)(1)(B)(i)) (ii) leave an existing party subject to substantial risk of incurring multiple or inconsistent obligations (Rule 19(a)(1)(B)(ii)) 2. If a person who is required to be joined cannot, the court must determine whether to dismiss or proceed with existing parties by considering: (a) extent to which judgment might prejudice absent person or existing parties; (b) extent to which prejudice could be lessened (c) whether judgment would be adequate; and (d) whether plaintiff would have an adequate remedy if the action were dismissed. (i.e. the Ct. will not dismiss unless P. has an alternative forum.) 3. Only time the Ct. can remand to State Ct. if it was removed; otherwise, all the Ct. can do is dismiss. VI. Discover and Disclosure A. Objectives and Policies 1. Objectives of Discovery (a) no surprise in Fed. Civil Trial (b) rules include electronic and stored information B. Discovery Tools and the Concept of Required Disclosures 1. For Parties (a) Written interrogatories (Rule 33) (i) Limited to 25 (including all discrete subparts) unless otherwise stipulated by the parties or ordered by the court (ii) Scope may ask for anything relevant to any partys claim or defense (iii)Response and objection must be served w/in 30 days (iv)May respond by referring to certain documents or making documents available for inspection (b) Document requests (Rule 34) (i) no limit on the number of requests (ii) Scope may ask about anything relevant to any partys claim or defense (iii)Response and objections must be served w/in 30 days (iv)The documents (or electronic data) must either be produced: (1) as they are kept in the ordinary course of business; or (2) organized in response to each document request (c) Requests for admission (d) Oral depositions (Rule 30) (i) to depose a party, reasonable notice is required under Rule 30(b)(1) 23 | P a g e reasonable undefined

must be served on ALL other parties to the action (not filed w/ Ct.) limits on deposition 1. limit to 10 (Rule 30(a)) 2. 1 day or 7 hrs. (but parties may stipulate around these limitations)

(e) For Non-Parties (i) Subpoena for documents and deposition (Rule 45) must be taken via subpoena 1. must issue a subpoena from the Ct. for the Dist. where the deposition will be taken 2. Must take reasonable steps to avoid imposing undue burden/expense Salter v. Upjohn Ct. denied request for deposition b/c D. tried to do it in Alabama and not the principle place of the CEOs business as is customary (ii) Basics of Discovery Planning C. Scope of Discovery 1. Rule 26(b)(1) scope of discovery is broad (a) Parties may obtain discovery regarding any non-privileged matter that is relevant to any partys claim or defense (i) to be relevant information need not be admissible at the trial (ii) Discovery need only to appear reasonably calculated to lead to the discovery of admissible evidence (b) For good cause, the court may order discovery of any matter relevant to the subject matter of the action 2. Privileged matter is not discoverable (a) attorney client privilege (b) confidential communication (i) United States v. Upjohn. SCOTUS rejected the control group test (i.e., attorney-client privilege extends only to senior management). Attorney-client privilege extends to lower-level employees of the corporation if: (1) Communications concerned matters within the scope of employees corporate duties and (2) Employees were aware that they were being questioned so that corporation could obtain legal advice 3. Work Product Rule 26(b)(3) (a) Attorney work product( i.e. information prepared or obtained in anticipation of litigation or in preparation for trial is generally immune from discovery (i) However, immunity is NOT absolute (ii) Adversary may be able to obtain information IF (1) highly relevant and (2) not available from other sources, Hickman v. Taylor (tugboat company that did interviews) SCOTUS held that attorney work product (i.e., information prepared or obtained in anticipation of litigation or preparation for trial) is generally immune from discovery.

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Immunity is not absolute. Adversary may be able to obtain information if highly relevant and not available from other source Rule codified in FRCP 26(b) (3). (b) Not routine report, Bank of the Orient v. Superior Ct. (accounting report to get information on embezzlement case) (c) prevents freeloading (d) However, some work product is absolutely protected (i) mental impressions (ii) conclusions (iii)legal theories 4. Experts & Consultants (Rule 26(b)(4)) (a) Experts who may testify at trial (i) Facts about or opinions held by the expert are subject to discovery by interrogatories, document requests, and/or deposition (ii) Parties often agree that documents relating to experts, including drafts of report, will not be subject to discovery (b) Non-testifying experts (i) Retained or specially employed in anticipation of litigation Subject to discovery if: (i) Rule 35(b) applies; or (ii) there are exceptional circumstances and it is impracticable for the information to be obtained by other means Not subject to discovery

(ii) Informally consulted in anticipation of litigation D. Mechanics of Discovery 1. Mandatory Self-Initiated Discovery (a) Rule 26(a)(1) requires mandatory disclosure of certain information w/out discover (i) names and addresses of individuals w/ relevant information (ii) description of relevant documents (iii)computation of each category of damages (iv)disclosure of any relevant insurance agreements (b) Must be made w/in 14 days of Rule 26(f) conference UNLESS Ct. orders otherwise 2. Scheduling Conference (a) Rule 26(f) requires the parties to confer as soon as practicable, but in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b) (b) Parties must (i) consider the nature and basis of their claims and defenses; (ii) make or arrange for disclosures under Rule 26(a)(1); (iii) discuss any issues about preserving discoverable information; and (iv) develop a proposed discovery plan E. Protective Orders 25 | P a g e

1. Rule 26(c) provides that a party or any person from whom discovery is sought may move for a protective order in the Ct. where the action is pending (a) Good faith required (b) Ct. may enter a protective order for good cause to prevent annoyance, embarrassment, oppression or undue burden or expense (c) Means of accomplishing this is via Ct. discretion F. Discovery Abuse and Sanctions 1. Rule 26(g) upon sending or answering discovery request, an attorney automatically makes certain certifications (similar to Rule 11) 2. Rule 37 range of sanctions for discovery abuse (a) e.g. ordering the discovery, dismissing the case, forcing the losing party to pay attorneys fees, etc. (b) Ct. has broad discretion VII.Adjudication Without Trial A. Judgment on the Pleadings 1. Rule 12(c) (1) pleading of both parties has been filed, (2) time to amend has expired, and (3) early enough not to delay trial, THEN judgment on the pleading can be granted IF (a) both parties agree on all factual issues; case depends solely on a question of law (b) P. files a motion for judgment on the pleading where D.s answer admits all allegations of the complaint (c) D files a motion for judgment on the pleading on theory that the plaintiffs claim fails to state a claim (NOTE: different than Rule 12(b)(6) b/c under the latter the pleadings are not closed.)C (d) If Ct. considers evidence outside of the pleadings, then converted to summary jdgmt Rule 56 (e) Austad v. United States U.S. brought suit to foreclose on mortgage and Austads personal liability on guarantee. D. answered and admitted all the relevant allegations, but asserted three affirmative offenses. Each was not allowed under the terms of the K. Ct. pronounced judgment on the pleading in favor of P. b/c D. had admitted all the elements of liability. B. Summary Judgment Rule 56 1. Summary Judgment v. Other Devices (a) Dismissal for Failure to State a claim (12(b)(6) Motion) P. would not be able to obtain relief on any theory fairly encompassed within complaint; no evidence considered; done before evidence is received, so Ct. must assume all allegations are true. Not he said she said type situation. If granted most courts allow for the plaintiff to amend the case. (b) Judgment on the Pleadings (12(c) Motion) Same standard as 12(b)(6) motion, but filed AFTER pleadings closed, but w/ no evidence yet received (c) Summary Judgment (Rule 56) When pleadings, affidavits and discovery products demonstrate that there is no genuine issue of material fact, so that a reasonable juror COULD ONLY find in favor of the movant. Ct. must assume that all inferences and 26 | P a g e

credibility determinations would in favor of the non-movement. If granted that is the end of the case. 2. Standard for Granting Summary Judgment (a) Rule 56(c) should be rendered if the pleadings, discovery and disclosure materials on file and any affidavits show that (1) there is no genuine issue as to any material fact and (2) that the movant is entitled to judgment as a matter of law. (i) Unlike in pleadings 12(b)(6) or 12(c) motions, 56(c) considers the evidence (e.g. documents, deposition testimony, affidavits, etc.) (ii) Only evidence that is admissible can be considered, so heresay evidence may not be considered (iii)Decided by the judge/court Warren v. Medley P. sued D1. for negligence. (D2 placed P. on table to dance and it broke.) D1. moved for summary judgment on the bases that the law requires gross negligence, which clearly wasnt the case. D1. has heavy burden: (1) must establish as a matter of law that he is not liable under any theory fairly presented by the allegations of the plaintiffs petition and (2) no reasonable mind could differ as to the conclusion. The D. looked to evidence from the P.s own deposition stating that D. could not have prevented the incident. Adickes v. Sh. Kress & Co. Civil Rights case. P. not served food and then arrested by the local police. P. alleged conspiracy b/w restaurant owner and police officer to federal question requirement. D. moved for summary jdgt one basis that there was no communication w/ police, only made tacit signal to employees, only refused service b/c he feared a riot. Ct. held for P. b/c D. did not address the fact that a police officer was alleged in the restaurant at the time of not serving and he was the same officer that ultimately arrested her. Ct. noted that for purposes of summary judgment it didnt matter if P. met evidentiary requirement. The burden ONLY shifts to P. if D. establishes the absence of a genuine issue.

3. Relevance of the Ultimate Burden of Proof: Summary Judgment b/c Opponent Cant Prove Her Case (a) Dyer v. McDougall Dyer (P.) sued D. for slander. P. alleged that the slander was published to two people. D. moved for summary judgment and supported his claim with affidavits from both alleged recipients of the slander stating that the statement alleged were not made. Ct. granted summary judgment. Noted that P. did not exercise right under 56(f) to obtain additional time to obtain additional facts to support claim. (b) Celotex Corps v. Catrett - Ct. of App. had reversed summary judgment due to petitioners failure to support its motion with evidence tending to negate claim. VIII. Trial Resolves disputes of fact. Decided by jury, BUT if no jury then the Ct. decides the facts 1. FRCP 38 preserves the right to a jury: (1) as declared by the 7th amendment OR (2) as provided by federal statute 27 | P a g e

A. Right to Jury Trial

(a) in suits at common law.the right to trial by jury shall be preserved BUT not for equitable claims. (b) Beacon Theatre v. Westover - Beacon brought suit for anti-trust violation. D. sought an injunction to keep doing business. Dist. Ct. extended injunction. Beacon appealed, issue was whether the injunction order could deprive Beacon of its right to jury. The anti-trust aspect of the case was a determination of fact (i.e. merits jury privilege), whereas the injunction was an equitable remedy. Beacon maintained that if the judge decided the equitable claim first, it would be depriving Beacon of its right to a jury trial w/ respect to factually issues decided by the judge. SCOTUS reverses lower Ct. ruling, finding that the entire claim must first be heard by jury. RULE: IF there are both legal claims and equitable claims and overlapping factual questions, then the party has a right to have a jury decide those factual questions. 2. Historical Test (a) Two Prong Test (i) Is this claim analogous to one that existed under the common law? Compare the claim to the 18th century action brought in the courts of England prior to the merger of courts of equity and law to determine whether the claim is legal or equitable. If claim didnt exist, then look to analogous claims.

(ii) If unclear Examine the remedy sought and determine whether it is legal or equitable in nature. (i.e. equity v. legal remedy) remedy at law damages equity injunction, SP, recession or reformation of K.

(iii)SCOTUS says that the second inquiry is more important. (b) The first prong of the test is problematic because a good case can be made for both sides. Hence, the test usually boils down to the second inquiry. (i) Tull v. United States Dispute regarding the violation of the Federal Clean Water Act. Subject to both an injunction and penalty (damages). SCOTUS held that the jury trial right can apply to the statutory claim, but not the amount of the penalty. (ii) Chauffeurs, Teamsters and Helpers v. Terry Justice Brennan argues that the first prong of the test should be abandoned because we are not legal historians and therefore not qualified to make such determination. Conservative Justices like Scalia, are loathed to make amendments to the constitution i.e. we have no choice. Idea that we should not read things into the constitution. More liberal justices, like Brennan, want to modernize. The constitution needs to be a living document.

(c) FOR EXAM: (i) Determine jury right issue by issue (not an all or nothing proposition) (ii) IF an issue of fact underlies both an equitable and legal claim jury trial (iii)try jury issue first 3. Jury Demand and Waiver (a) Can be waived if not demanded properly 28 | P a g e

(b) Under FRCP 38, demand must be made no later than 10 days after last pleading served. (i) Jury demand may be included in pleading (e.g. complaint and answer) (c) Under FRCP 39, if a jury trial is waived, the court has the discretion to grant a motion for a jury trial. (d) Once one party makes a demand for a jury trial, then the other party does not need to do so. So, if P. demand jury trial, then D. doesnt need to do so. If P. later changes its mind, then D. will also have to agree. (e) Lewis v. Time As long as satisfied demand under state statutes, then it satisfies it under federal standards B. Voir Dire and Challenges Ct. is trying to ensure that a jury is impartial and unbiased; the parties are trying to obtain a jury that is most favorable to their case. So in some senses they are working at cross purposes. (a) Disqualified when (1) unavoidable biased against a particular party (e.g. related to party) OR (2) do not meet general requirements for service (e.g. no a citizen, illiterate) (b) Unlimited number (c) McDonough Power Equipment v. Greenwood Juror failed to respond when questioned about whether an immediate member of their family had been a victim of a serious injury that resulted in a disability or prolonged suffering. The jurors son had been a victim of an injury. Verdict found for D. P. sought new trial citing as one of the reasons related to this question during the voir dire process. SCOTUS held that it was a harmless error: a litigant is entitled to a fair trial, not a perfect one. For new trial, must (1) demonstrate that juror had failed to answer honestly and then (2) show that a correct response would have provided a valid basis for a challenge for cause. 2. Peremptory Challenges (a) May be exercised w/out providing a reason (b) Limited to 3 peremptory challenges in federal court (c) However, reason for the challenge cannot be illegal (i) Edmonson v. Leesville Concrete Co. SCOTUS extended holding in criminal cases that a peremptory challenge cannot be used on the basis of race. Case involved a job-site injury. D. used two of its three peremptory challenges to remove African Americans (Edmonson was an African American). P. requested D supply a race neutral explanation for striking the two jurors. SCOTUS looked to its holding in Batson, to determine whether the standard applied in the context of a civil case where the two attorneys are private actors. Rationale being that although the attorney is a private actor, he is performing a government action during the jury selection process. working toward the same goal of a fair and impartial jury the voire dire process has no meaning outside the government context, thus the acts occur under the umbrella of the court itself. 29 | P a g e

1. For Cause Challenges

Test that comes out of the case is (1) prima facie case, proportionality (2) other party would have to make a neutral explanation. The latter doesnt have to be logical or substantive. Can be a mere hunch . Cant be a cover-up or be pre-textual Edmonson rule extended by SCOTUS to gender in J.E.B. v. Alabama ex rel. Cts. divided on whether Edmonson rule should extend to religion. Religion can sustain more of an argument for bias because religious beliefs are more of a clear-cut bias because it is a belief system. Race or Gender are not associated with such a belief system.

C. Judgment as a Matter of Law (JMOL) Ct. takes away evidentiary finding from the jury 1. FRCP 50 provides that if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (i) resolve the issue against the party; and (ii) grant a motion for JMOL Motion must be made b/f case is submitted to jury or cant be renewed after verdict 2. Two types (only difference is timing) (a) JMOL before case goes to the jury (i) Rule 50(a) motion (ii) Previously known as directed verdict (b) JMOL after jury returns a verdict (i) Rule 50(b) motion (ii) Previously known as judgment notwithstanding the verdict (iii)same standard as 50(a), but AFTER goes to jury (iv)Rule 50(a) is a prerequisite, i.e. must have moved for a JMOL under Rule 50(a) at the proper time during trial Rationale is that if the Ct. had originally granted the JMOL and ruled in favor of the movant and it is appealed and reversed, you dont have to have a retrial. Also, the jury may return the right verdict, i.e. see it the way the judge sees it.

(c) Reeves v. Sanderson Plumbing Co. Age discrimination case. P. fired for improper timesheets. P. submitted as evidence that (1) he kept proper timesheets and (2) D.s comments on his age (via coworkers statement). D. contended that timesheets were the reason for the dismissal and the companys record of employing people over 50. SCOTUS held that Ct. should consider all the evidence in the record when deciding JMOL, BUT must (1) draw all reasonable inferences in favor of the nonmovant, (2) may not make credibility determinations or weigh evidenct. (i.e. Ct. should given credence to evidence in favor of the nonmovant and evidence favoring the movant that is uncontradicted and unimpeachable.

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(d) Lavender v. Kurn As in prior case, must draw all reasonable inferences in favor of the movant. Both parties had reasonable inferences. It is not the judges job to make this determination. IX. Post-Trial Motions A. JMOL See above Rule 50(b) B. New Trial Rule 59(a) 1. Purpose is to correct possible miscarriage of justice. Something happened at trial that makes the judge want to start over (e.g. jury instructions, misconduct, etc.) 2. Many grounds, including, but not limited to: (a) Harmless error Rule 61 (i) Unless justice provides otherwise, Cts. must ignore errors that dont impact the parties. Only not fair b/c changes the outcome of the case. (b) Trial or pretrial error (i) Conway v. Chemical Leaman Tank Lines Car accident case. Dispute over who is negligent and question of facts. D. contended that P. veered into its lane; P. contended that P. veered in its lane. D. called a different surprise witness in 2nd trial. P. objected. Ct. granted continuing objection to all the witness testimony. Issue was whether the Dist. Ct. had abused discretion in granting a new trial b/c D. had introduced a surprise expert witness in second trial and introduced new theory. Ct. App. held that they did not abuse discretion and granted a new trial on grounds that the surprise testimony actually prejudiced Ps case. Note: have to make objection to preserve for appeal (c) Newly discovered evidence (i) A new trial may be warranted based on newly discovered evidence, that is evidence that is not available or could not have been made available by the use of reasonable diligence at the first trial Theres a narrow exception to this rule that applies when the new evidence is practically conclusive and not allowing a new trial would result in a grave miscarriage of justice

(ii) To prevail on a motion for a new trial based on newly discovered evidence, must show: Evidence discovered since trial Reasonable diligence Evidence is not merely impeaching or cumulative Evidence will probably produce a different result at trial

EX: Ope Shipping, Ltd. V. Underwriters at Lloyds Dispute over insurance policy for ship owned the Nicaraguan government. Ship is insured by Lloyds for loss during war. Issue was whether ship had been commandeered by the government (an exception under the policy) or an opposing government. Trial 1 judgment for D. b/c seized by Sandinistas and NOT recognized Nicaraguan 31 | P a g e

government. Cir. Ct. reverses on new evidence showing it was in fact the Nicaraguan government. (d) Misconduct of jurors (i) Multiflex, Inc. v. Samuel Moore & Co. Ct. does not grant new trial. Issue was the jury used a quotient verdict average of what each jury believed where the proper damages. (e) Jury verdict is against great weight of the evidence (i) United States v. An Article of Drug Jury trial found for D. that the drug was generally recognized as safe and effective. Trial judge granted new trial on the basis that the great weight of evidence was contrary to the jury verdict. Trial Ct. granted summary judgment finding that Pfizers studies were inadequate as a matter of law. Pfizer appeals, stating that the D. Ct. should not be allowed to grant summary judgment because is brought SOME evidence that would support the jury verdict. Ct. App. not persuaded by Pfizers argument, stating that it miscomprehends the standard of review for granting a new trial. A trial court has discretion as to whether he believes the verdict is contract to the weight of evidence. The App. Ct. may intervene ONLY when the court abused its description or failed to exercise it. So it could reverse the granting of a new trial on if find absolute absence of evidence contrary to the jury verdict. Both summary judgment and grant of new trial affirmed. 3. Interplay between Motion for JMOL and Motion for new trial (Rule 50 (c) (e)) (a) Sets forth the procedure for considering both a motion for JMOL and new trial (b) Policy consideration underlying the procedure: (i) Any party aggrieved by the outcome of the trial should have the opportunity to make a motion for a JMOL and a motion for new trial (ii) There should only be one appeal from both motions. (c) Hypo 1 D. verdict loser. D moves JMOL and new trial D. Ct. denies both motions. D. appeals and is denied on both motions. (d) Hypo 2 D. verdict loser. D. moves for JMOL and new trial trial ct. grants JMOL (D. is now judgment winner) Trial judge has to rule conditionally on the new trial. (Why? So that if the JMOL is reversed on appeal, then you know whether or not to stick w/ the original trial verdict or if there should be a new trial.) P. will appeal JMOL. Ct. App. reverses JMOL, it will then look at D. Ct. ruling on new trial. If new trial upheld, then remanded back to D. Ct. However, If JMOL upheld then original judgment will stand (Rule 50 (c)). (e) Neely v. Martin P. (Needly) sues Martin for negligence. P. verdict winner. D. moves for JMOL and new trial. D. Ct. denies both motions. D. appeals. Ct. App. reverses the JMOL (i.e. takes the verdict away from P.) and remands cases, ordering judgment for the D. SCOTUS grants cert. Issue is that P. had verdict, but was never given an opportunity for a new trial. Holds that once the JMOL was reversed, P. needed to move for a new trial at the Ct. App. level. (Rule 50(e)) (i) Rule 50(e) If Ct. denies a JMOL, the prevailing party may assert grounds to entitle it to a new trial should the appellate Ct. conclude that the trial ct. erred in denying the motion. If the App. Ct. reverses the judgment, it may order a new 32 | P a g e

trial, direct the trail ct. to determine whether a new trial should be granted, or direct the entry of judgment. X. Res Judicata, Collateral Estoppel, and Related Preclusion Doctrines (common law) A. Res Judicata/Claim Preclusion 1. Precludes re-litigation when a subsequent suit is brought on the same claim 2. For claim preclusion to apply in the second lawsuit, there must be (a) Final valid judgment (b) Judgment must be on the merits (i) Applies when full opportunity to litigate (e.g. Full trial followed by a verdict and judgment, summary judgment exercises, default judgment) (ii) Does not include where not on the merits (e.g. dismissal for lack of jurisdiction, improper venue, failure to join party) (c) Claim (or cause of action) must be the same as in the first suit (i) Narrow Approach (i.e. Smith v. Kirkpatrick) Preclude only claims that are identical or very similar to the original claim individualized or same evidence approach Precludes claims that were brought or claims that could have been brought in the first suit Transactional analysis, must assert all claims that arise out of the same transaction or reoccurrence

(ii) Broader/Transactional Approach (federal approach)

(d) Parties must be the same (or sufficiently closely related) (i) Sometimes non-parties will be subject to preclusive effect based on their relationship with those who were parties to the first suit Non-parties who controls or effectively controls the litigation for the party Non-party represented by a party (e.g. trust beneficiaries estate beneficiaries, class members)

B. Collateral Estoppel/Issue Preclusion 1. Precludes re-litigation of an issue settled in a prior suit, even if on a different claim (a) Ask yourself whether or not a different outcome in the previous case would affect the outcome in your case (b) If the issue was decided in the first case, then it reduces the scope of the second case. (c) Applies to issues of fact and law that were (i) Actually litigated (ii) Determined by a valid and final judgment (iii)Where the determination was an essential to the judgment 33 | P a g e E.g. Beacon Theatre Case

(iv)only used against someone who was a party to the first case Ryan v. New York Telephone Co. Three lawsuits (1) administrative proceeding that found that Ryan stole, (2) criminal proceeding where charges were dismissed in the interest of justice, (i.e. not worth pursuing, left the question of guilt or unanswered). (3) Suit against the NY telephone for false arrest, malicious prosecution, slander and wrongful discharge, etc. Defendant asserts res judicata against all the Plaintiffs claims. Ct. grants defendants motion b/c Ryan had a full and fair opportunity to litigate the issue in the prior proceeding. Further, the finding of theft by administrative proceeding was the essential predicate to the determination

2. Only the estopped party must be bound by the prior determination (modern view) (a) Mutuality (different parties) is not required 3. Prior decision maker must be operating in a judicial capacity (a) Administrative agencies 4. To apply, the party against whom the preclusion doctrine is asserted must have had a full and fair opportunity to litigate the issue 5. Defensive non-mutual Collateral Estoppel Example used by SCOTUS is a patent holder alleging infringement. e.g. Blonder-Tongue sues a different defendant. Prevents a plaintiff from intentionally choosing piecemeal litigation until they get the desired result. More likely to join all of the defendants. Thus, promotes efficiency. (a) use of estoppel by defendant in case 2 (b) EX: A sues BA loses. A sues C. C. can used judgment from case 1 to preclude defense in case 2. (c) Most Cts. allow IF party was given a full and fair chance to litigate in case 1. (d) policy rationale is that it encourages plaintiffs to join defendants in one suit 6. Offensive non-mutual Collateral Estoppel Shore is attempting to assert offensive, nonmutual collateral estoppel. Using it to get a decision in his favor (i.e. as an offensive tool). SCOTUS states that it can be used on a case by case basis b/c (1) doesnt promote judicial economy b/c plaintiff does not have an incentive to join partieswait and see, (2) may be unfair to a defendant if liable for only a small number of damages and didnt put forth a avid claim, and (3) procedural advantages. Not balancing test, you dont have to have all of them. (a) P (or claimant) in case 2 (b) under traditional rules, cant use. But today can use if it is FAIR. (c) Unfair determined by whether (i) D. had an incentive to defend itself vigorously in suit 1 (ii) if there are any inconsistent judgments w/ the one the plaintiff is relying on (iii)if there are any procedural opportunities in suit 2 there were not available in suit 1 (d) Parklane Hosiery Co. v. Shore First lawsuit, SEC against Parklane, judgment for SEC proxy statement materially false/misleading. Second lawsuit, Shore bringing stockholder derivative suit against Parklane. Shore moves for summary judgment based on issue preclusion (from first lawsuit). Case important b/c it set out the 34 | P a g e

offensive framework and ultimately decides that preclusion would be appropriate here. (i) D. had a full and fair chance to litigate in case 1 (ii) D. could have foreseen multiple suits (iii)P. could not have joined easily in case 1 (via intervention) (iv)No inconsistent judgment

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