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I. Personal Jurisdiction
A. In Personam Jurisdiction
General Jurisdiction- Defendant can be sued in this forum from a claim that
arose anywhere in the world
Specific Jurisdiction- Defendant is being sued in the forum from a claim that
arose in the forum.1. Constitutional Analysis
Pennoyer v. Neff
Traditional Basis for in Personam jurisdiction
Defendant is served with process in the in the forum – General Jurisdiction
Defendant’s agent was served with process in the forum – General Jurisdiction
Defendant is domicile in the forum- General
Defendant consents to personal jurisdiction 1) willingly 2) failing to raise an objection –
General
Hess v. Pawloski- while driving in through Mass. A citizen of Pen gets in a car accident but
leaves the state before served with process. Mass. Statute and every state today has a Non
Resident Motorist Act- by driving a motor vehicle in the state you have appointed a state agent
to receive service of process. The court ruled that there was personal specific jurisdiction. The
court ruling was consistent with the traditional basis of Pennoyer v. Neff but expanded to
include implied consent.
International Shoe- The Defendant must Have such minimum contacts with the forum so that
exercise of jurisdiction does not offend traditional notions of fair play”
Flexible Can now serve defendant with process outside of the forum
Seems to have 2 parts 1) contacts 2) fairness – proved correct later in burgerking
Does not overrule Pennoyer – this is the test if there is not presence in the forum
Mcgee- Even though there was only one contact in the forum the courts upheld general in
personam jurisdiction because 1) the defendant had solicited the plaintiff in the forum 2) the
state had an interest in providing a forum for its residents to litigate 3) Relatedness- plaintiffs
claim arose from defendants contact with the forum
Hanson v. Denckla – Woman from PA. moves to Florida and continues her relationship with
Delaware bank. The court did NOT uphold jurisdiction because the Defendant had noPurposeful Availment- to have had jurisdiction the defendant would have had to have reached
out to the forum in some way.
World-Wide Volkswagen v. Woodson - No jurisdiction. Even though it was fo4reseeable that
the car would get to the forum, it was not foreseeable that the defendant would get sued in the
forum. If a corporations forum then there is general in personam jurisdiction in the forum.
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Coulder – The coulder effect- Don’t have to be in the forum but if you reached out to the forum
then there is purposeful availment and personal jurisdiction
Burger King v. Rudzewicz - Two Part Test 1) Contact 2) Fairness
You must satisfy the contact element before looking at the fairness element. Sliding Scale- a
lesser amount of contacts can be compensated by a greater amount of fairness but must have
some element of contact
The burden is on the defendant to show that the forum is unconstitutional “so gravely difficult
and inconvenient that you are at a severe disadvantage in the litigation” The relative wealth of
the parties is irrelevant. Due process does not guarantee the best or even a good forum it only
guarantees one that is constitutional.
Asahi Metal Industry v. Superior Court – 4/4 split Stream of Commerce Case
1) Brennan- it is a relevant contact if you put the product into the stream and reasonably
anticipate that it will get to the other states2) O’Conner- need what Brennan said plus the intent to serve the other states EX:
advertising in the forum or having customer service in the forum.
Burnham- 4/4 Split Do you need mimimum contact if you have one of the traditional basis for
jurisdiction under Pennoyer?
1) Scalia- Presence in the forum while served with process is enough- Pennoyer Lives! No
need for further analysis.
2) Brennan- Still need minimum contact.
Helicopteros – “Continuous and systematic ties with the forum gives general jurisdiction”
2. Statutory Enquiry- In Personam Jurisdiction
a) Every state grants General Jurisdiction over a defendant who is served with process
in the forum
b) Every State grants General Jurisdiction over a defendant who is domicile in the
forum
c) Every state has a Non Resident Motorist Act that grants Specific Jurisdiction to non
residents involved in a motor vehicle accident while in the forum. (implied consent
and purposeful avialment)
d) Long Arm Statute- non residents for claims other than motor vehicle. There are 2
typed of Long Arm Statutes 1) CA. – state reaches to the full extent of due process (the statutory and constitution analysis will be the same) 2) Laundry List- a non-
resident can be sued in the state on a claim that arises from the defendant doing
something specific in the forum. The laundry list lays out a list of claims that give
specific jurisdiction ex: tort, contract. Every states language is different. Look at the
statute carefully. Different courts will interpret the same language differently.
Hypo- manufactures widgets in state A person in state B is injured by the faulty
widget. Is there a tort in state B? 1) yes- because the Plaintiff was injured in state B
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and there is no tort without injury (Gray v. American Radiator) 2) no because didn’t
do anything in state B.
B. In Rem and Quasi-in-Rem Jurisdiction – Jurisdiction over Defendants property –
not his person Ex: May use In Rem jurisdiction in defamation cases because
many states long arm statutes don’t include defemation and you therefore
cannot get inpersonam jurisdiction.1) Definitions.
a. In Rem (1) – the case is about the property – ownership dispute
b. Quasi-in-Rem- Lawsuit has nothing to do with the property- use the property as the
basis for jurisdiction- use when can’t get personam jurisdiction.
2) Attachment- All states have an attachment statute
a. We can attach the property if it is property that a non-resident defendant owns or
claims to own.
b. Constitutional requirement- property must be attached at the outset of the case.
The defendant must have minimum contacts with the forum
C. Full Faith and Credit
a) If there is a valid judgment in Personum there is a judgment (obligation) on
the person himself. The plaintiff can seize defendant’s property and auction
the property to collect his payment. If after the plaintiff collects from the
property the defendant still owes him more money the plaintiff can go after
the defendant’s property in another state. The obligation follows the
defendant all over the country
b) In In Rem and Quasi-in-Rem the judgment is only good to the extent of the
jurisdiction. The judgment is only good to the value of the property- cannot
enforce it in another state.
How to tackle an exam Question
II. Notice and Opportunity to be Heard
A. Service of Process – every state has their own rules for service of process.
Federal Rule #4 governs the procedure in Federal Court- many states have
adopted these provisions.
1. Process- consists of 2 documents 1) summons- formal notice from the court that tells
the defendant that she has been sued, how long she has to respond, and tells her that if
she does not respond that risks being in default. 4(a)(b) summons is signed by the court
clerk – symbol of the governments power over the defendant (instead of arresting)
perfects personal jurisdiction. 2) copy of the complaint 2. Rule 4 (c) (2) – service of process can be affected by any non-party who is at least 18
years old.
3. Process must be served within 120 days after filing the complaint. If you do not the
court will dismiss the case without prejudice( can refile the case), unless you can show
good cause for the delay Rule 4(M) .
4. 3 methods for service of process on an individual Rule 4(e)(2)
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a) Personal service- deliver the papers directly to the defendant- cab be done
anywhere in the forum state ( does not have to be at the home or office)
b) Substituted Service- has to be at the defendants dwelling house or usual abode AND
you serve someone of suitable age and discretion who resides there. (babysitter- not
good because she goes home) (butler is ok)
c) Agent Service- serve the defendants agent- can be by contract or by operation of law d) Rule 4(e)(1) – the court may also use any method for service of process that is
allowed by state law
5. Service of process on a corporation – Rule 4(H)
You must serve an officer (pres., secretary, treasurer) of managing or general agent
(varies- someone with enough responsibility to trust he will transmit the papers) of that
corporation.
6. Waiver of service – Rule 4(1) – not service of process.
Done by first class mail a form is sent to the defendant with return envelope. If she
returns it within 30 days she has waived her right to service of process but not any other
right. If she does not waive formal service the plaintiff will have to serve formally but
defendant pays the cost of the service.
7. Where can Plaintiff serve process on the defendant?
Rule 4(k)(1)(a) – Federal Court can serve process throughout the state where the courts
siets. Can also serve process out of the state ONLY IF a state court could have served
process there as well Ex: NY Fed. Court can serve process throughout the state of NY
and out of state in any state that NY state court could serve (ex: using the long arm
statute)
Exceptions:
i) 4(k)(1)(b) – Buldge Rule- can serve process from a federal court outside the
state even without a state statute IF it is within 100 miles of the court house-
does not apply to original Defendant (only to defendants joined later underRule 14 and 19)
ii) Rule 4(k)(1)(c) and (d) – federal statutes may allow for more service of process
outside the state
B. Constitutional standard for Notice
1. Mullane v. Central Hanover Bank – “Notice must be reasonably calculated under all the
circumstances to apprise the defendant of the suit”
As long as you follow the federal rules it will be constitutional (one of the 3 ways) this is
true even if the defendant never receives the notice.
Jones v. flowers- If you become aware that the defendant did not recive the notice you
may be required to take additional steps.2. Notice by Publication/ constructive notice- usually done in a newspaper. This method is
frowned upon, but in cases where the identity or location of the defendant is not know
the court may allow it as a last resort.
C. Opportunity to be heard – prejudgment seizure
Factors to protect the defendant
Defendant gets a hearing o the merits at some point
Plaintiff must give an affidavit (sworn statement) of his claim
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May require that plaintiff’s affidavit state the facts in specificity
Get a writ of possession from a judge- not a sheriff
Plaintiff may be required to post a bond- if possession is improper there
is money to repay the defendant
Defendant gets the property back pending the litigation by posting a
bond.III. Subject Matter Jurisdiction – What court do we go to? State or Federal?
State Court- General subject matter jurisdiction- can hear any claim if there is personal
jurisdiction (only certain federal question claims must go to federal court).
Federal court- Limited subject matter jurisdiction
A. Diversity of citizenship – 13-32(a)(1) – code in the back of the red book
1) Must be between citizens of different states
2) Must be OVER $75,000
1. Citizens of Different statesa. Complete Diversity Rule- no diversity if any plaintiff is a citizen of the same state
as any defendant (Strawbridge v. Curtis)
b. Test for diversity when the case is filed- subsequent diversity is irrelevant
c. U.S. citizen is a citizen of the stat in which she is domicile
Domicile is established by 1) must be in the state 2) must form the intent to
make the forum your permanent home
A person can only have 1 domicile at a time. Ones domicile is ascribed to them at
birth and can be changed at 18 by following the 2 necessary steps of presence
and intent.
d. Corporations – 13-32(c)(1) A corporation is domicile in1) all states that it is
incorporated 2) the 1 state that it has its principle place of business. A
corporation can have more than 1 domicile
Principle place of business can be determined in one of 3 ways
1. Nerve control test- where the decision are made
2. Muscle center test – where most business takes place
3. Total activities test- look at nerve and muscle (most courts use this) use the nerve
center unless all the activity is done in one place Ex: all manufacturing done in one
place if activity is dispersed look to the nerve center ( decisions)
e. Citizenship of an unincorporated business - look to the citizenship of all the
members. LP- look to all partners General and limited and is citizen of all the
states. f. Representatives suing on behalf of others
a. 13-32(c)(2) suits on behalf of decedents, minors, and incompetents- look to
the citizenship of the person being REPRESENNTED- not to the citizenship of
the representative
b. Class action suit- look at the citizenship of the REPRESENTATIVE ONLY – not
to the citizenship of those being represented.
2. Amount in controversy must exceed $75,000
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i) 13-32(a)(1) the claim must be over 75k (exactly 75k is not good enough) this is
not counting interest and costs
ii) Plaintiff’s claim governs unless it is clear to a legal certainty that she cannot
recover that much- very unlikely unless as a matte4r of law cannot recover that
much
iii) Plaintiff’s ultimate recovery is irrelevant to subject matter jurisdiction if Plaintiff claims 76k and only recovers 10k it is ok and still have federal jurisdiction but
under 13-32(b) if this happens the plaintiff may be required to pay defendants
costs (does not include attorneys fees)
iv) Aggregation- is where we add together two or more claims to get over 75K.
neither one alone gives 75k so we combine the claims to reach the required
amount.
Rule- can have aggregate claims ONLY if there is ONE plaintiff and ONE
defendant- even if the claims are unrelated. Cannot aggregate if you have
multiple parties on either side
Rule- if have JOINT CLAIMS you go with the total value of that claim
Plaintiff sues 3 joint tortfeasors for 76k – ok because they are JOINTLY liable.
B. Federal Question- A question that arises under federal Law both citizenship and the
amount in controversy does not matter.
How do you determine whether it is a claim that involves a federal question?
1) Look only at the Plaintiffs complaint- do not look at anything the defendant does
2) Plaintiffs claim must arise out of federal law- Well- Pleaded Rule – Look only at
Plaintiffs claim and see is if the Plaintiff is enforcing a federal right?
Motly case- congress passed statute- federal law that said R.R. can’t give out free
passes. Motly sued the R.R. and in their complaint said that the fed. Law does not apply
to them but not federal jurisdiction because they are not enforcing a right. Their claim
was that of a breach of contract.
C. Supplemental Jurisdiction
For every claim in fed. Court you must have subject matter jurisdiction. Each one must meet
diversity and 75k requirement of fed. Law question. If a claim does not meet one of these
criteria it can still make it in to fed court through supplemental jurisdiction. Supplemental
jurisdiction only gets ADDITIONAL claims into fed court.
1. Mine Workers v. Gibbs
Original claim gets the case into fed court by meeting fed question of diversity. The
second claim can get in without meeting one of the requirements if it “Shares a
common nucleolus of operative fact (same real world event) with the claim that invoked
jurisdiction” Always met if claim arises from the same transaction or occurrence.
2. Does 13-67 grant supplemental jurisdiction1367 (a) yes if meets Gibbs test of sharing
a common nucleolus of operative fact
Does 1367(b) take supplemental jurisdiction away?
a) Applies only in diversity cases- never in federal Question cases AND
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b) Claims by Plaintiff- not by defendant or 3rd
party defendants brought in under
rule 19 AND
c) Claims asserted by people seeking to intervene as a plaintiff under rule 24
Have supplemental jurisdiction if meets Gibbs and 1367(b) doesn’t take it away
D. Removal –1441, 1446,1447- gives the Defendant a chance to challenge the forum. This
happens when defendant is being sued in state court but the defendant wants to litigatein federal court.
a) Removal only goes from state to federal – one way street
b) All defendants must agree to removal – 1441(c) single defendant can remove only if
a separate independent federal question is against her
c) Only defendants can remove- plaintiffs cannot
d) 1441(a) can only go to a fed court that embraces that claim- a fed. Court
incorporating that state court( the appropriate district)
e) Timing- must remove within 30 days of service of the document that first make the
case removable Murfey brothers- waited to serve formal process.
f) Can remove if the case has federal subject matter jurisdiction EXCEPT: 1) Cannot
move diversity case if any Defendant is a citizen of the forum 2) cannot remove a
diversity case more than 1 year after the case was filed in state court
IV. Venue – What federal District?
A. Basic provisions
1. IN removal cases, venue is in the district embracing the state court
2. Local actions must be brought in the district where the land ies
Local action- case about possession, ownership, or injury to real property(land) EX:
trespass
3. Rules for the transitory case ( anything that is not a local action)
a) Plaintiff has 2 choices where to lay venue 1391(a) diversity 1391(b)- federal
question1) any district where all defendants reside- if all defendants reside in different
districts in the same stet can have venue in any district in that state
Reside- usually same as domicile but for a corporation it is in all districts where
subject to personal jurisdiction 2) any district where a substantial part of the
clam arose
B. Transfer of Venue –
1. Can only move within the same system
2. Terminology
a) Trasferor- the court from which we are transferring
b)
Transferee- the court to which we are transferring3. Two transfer statutes in Federal Court- can only transfer to a place that has a Proper
veue and has personal jurisdiction and has not been waived by the defendant.
Hoffman v. Blasky
a. 1404(a) the transferor court is a proper venue, and we may transfer based on
three things 1) convenience of the parties2) convenience of the witnesses 3)
interest of justice
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Moving from one good venue to another good venue that is just more
convenient. Transforee court applies the law rules the trasfor4or court.
b. 1406(a) venue in the transferor court is improper. The court may transfer in the
intest of justice or it may dismiss.
C. Forum non conveniens
1. This is where the court dismisses the case because there is a moreappropriate venue
2. Why dismiss? Because transfer is not available because the more
appropriate venue is in a different judicial system.
Piper v. Reno- plane crash in Scotland all parties from Scotland but the
plane was manufactured in America. Supreme court of Pen. Should
dismiss and force litigation in Scotland
Foot note 6- Public and private factors
Court can impose conditions on defendant when dismissing under
forum non convenience. The fact that a plaintiff can recover less by
litigating oversees is NOT determinative.
V. Challenging forum Selection- if defendant does not like the forum
A. Special Appearance Doctrine- alive in many states such as CA. if you want to challenge
just personal jurisdiction, you can appear in the court under a special appearance, so by
challenging ONLY personal jurisdiction you are not subject yourself General Jurisdiction.
At what point do you lose protection? When do anything else besides objectively to
Personal Jurisdiction.
B. Federal Rules
Rule 12 and waiver- have to raise these defenses in answer of motion or dismiss or they
will be waived. Within 20 days so as not to be in default has to answer (pleading) or
make a motion (request that the court order something)
[Can be raised ANYTIME] a) 12(b) (1) - lack of subject matter jurisdiction
[Must be the 1st
Rule 12 response b) 12(b) (2) - lack of personal jurisdiction
c) 12(b) (3) – improper venue
d) 12 (b) (4) insufficient service of process- problem with one of the documents- rare
e) 12 (b) (5) – insufficient service of process- problem with the way it was served
[Can be raised anytime through trial] f) 12 (b) (6) - failure to state claim
g) 12 (b) (7) – failure to join an indispensable party
Timing Prevision- 12 (g) & (h) - 12 (b) 2-5 Must be in 1st
rule 12 response or they waived
12 b (6) & (7) – can be raised anytime through trial
12 (b) (1) – can be raised any time- never waived
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VI. The Erie Doctrine- only in diversity of citizenship cases- Federal Court has to decide a
particular issue the question is whether the Federal Court must follow state law on the issue?
A. Black letter law- the Federal Court MUST apply State Substantive Law issue of substance
v. Procedural Law Erie v. Tompkins
Because 1) rules of decision act 1652 if no state law on point use Federal law2) Constitution 10th
amendment- preserves to the state all powers that have not
been given to the Federal Government
Eirie- Question is whether the R.R. is LIABLE- substantive law= state law
1. Hanna v. Plumer – Erie doctrine is 2 doctrines . Hanna problems are NOT erie problems.
If there is a federal rule of civil procedure on point that clashes with state law, the
federal law governs.
B. Factors for applying Erie Doctrine – if no federal rule on point, but federal court does not
want to follw state law? If substantive issue then must apply state law, but if procedural
they don’t
How do you know if it is substantive?
1. Outcome determination- Guaranty trust v. York- state statute of limitations bared the
claim the fed. Court wanted to apply fed. Doctrine that would allow the case. NO fed.
Statute on point- Not a hanna problem- the court MUST apply state law. It is substantive
law because ignoring this state law would change the outcome of the case. The
outcome should be the same I n Fed. Court and in State court as far as the rules go.
Almost any rule can be outcome determinative.
2. Balancing of interests – Byrd v. Blue Ridge Rural Cooperative- state law said issue should
be decided by the judge but the fed court wanted to let the jury decide. – No fed. Rule
on point (not a hanna case) Not outcome determinative. If state law is not clearlysubstantive the fed court applies state law unless the Fed. Court has some interest in
doing its own way. In this case they did. – procedural
3. Twin Aims of Erie Hanna v. plumer dicta
a. Avoidance of forum shopping
b. Avoidance of inequitable administration of the law
If the fed. Court ignored state law on this issue would it cause litigants to flock to
fed. Court? If yes that’s a bad thing cuz It would be unfair to instate citizens because
they can’t go to fed. Court because they have no diversity issue.
If violates Twin Aims- MUST apply State Law
Gaspereeney- NY law- set standard for court to order new trial for excessive verdict-Substantive must follow NY Law
NY law- allowed appellate court to apply the standard de novo – procedural- Can follow fed.
Law
Erie Problem- Rules for tolling( stopping) statute of limitations – follow state law
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VII. Pleadings – Documents that set forth claims and defenses
Modern approach- to give notice (discovery phase is to find out facts)
Common Law approach- To give notice and to uncover facts about the case
7(a) complaint + answer + optional reply or by court order
If Defendant has a counter claim the plaintiffs answer is called a reply
Most states use Federal Rules the other states use code pleading
A. Rule 11- requires attorneys to sign all documents besides for discovery documents- this certifies
that to the best of your knowledge and belief after an inquiry reasonable under the
circumstances that
a) This paper is not for an improper purposed
b) The legal contentions have evidentiary support or there is a no frivolous argument why
the law should be changed- this allows for creativity in the law
c) The factual contentions have evidentiary support or are likely to after further
investigation
d) The denial of factual contentions have evidentiary support or are likely to after further
investigation (pertains to the defendant)
Procedural matters for Rule 11
a) The certification is affective every time that document is presented to the court (continuing
certification)
b) Sanctions are discretionary- may not shall- aimed at deterrence and can be non monetary
c) A motion of violation of a Rule 11 is served but not filed
Rule 11 gives the other party a safe harbor period of 21 days to fix the problem. If they neglect
to fix the problem you can then file a Rule 11 motion
B. Complaint – the lawsuit is commenced when the complaint is filed-made by the plaintiff
Plaintiff files complaint > defendant files answer or motion> plaintiff can but does not have to
unless ordered by the court file a reply
Rule 8(a) – 3 things must be in the complaint
a) state grounds for subject matter jurisdiction
b) make a short and plain statement of the claim showing that you are entitled to relief – don’t
need a lot of facts (code pleading needs more facts) pleading must cover all elements of the claim being alleged
Contley v. Gibson – As long as the Judge can read and understand the complaint it is
sufficient exceptions: need detail for 9(b) fraud or mistakes claim must be plead with
particularity and private securities COA 9(g) items of special damages must be plead with
specificity Special Damages- those damages that do not normally flow from an event Ex:
Man left with a permanent erection form a car accident
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Letherman v. Terret County – If no rule or statute requiring specificity exists the court can’t
require more detail – can’t impose a stricter standard
c) A demand for Judgment- must tell the court what you want
C. Defendants Response
Rule 12 – within 20 days of being served with process defendant will either answer or file a
motion. If defendant waived service of process he will be given Rule 4(d) 60 days from the
day the plaintiff mailed the form of waiver to the defendant in which to answer or file a
motion.
Rule 12 (b) – had to be put in answer or are waived
Answer is a Pleading
Rule 8(b) – Respond to the allegations in the complaint in three possible ways
1) Admit
2) Deny
3) Lack sufficient evidence to admit or deny- can’t use if information is in your control or a
matter of public record
Failure to deny is treated as an admission on all allegations aside from damages “If you
don’t deny your surely will fry”
In your answer you must raise all affirmative defenses according to rule 8 (c) (Ex: Statute
of frauds, statute of limitations, res judicata)Affirmative defense raises a new fact as to
why the plaintiff cannot win- must be in your answer or else you run the risk of waiving
them.
Dean Richard D. Freer –Disc 6 D. Amending Pleadings
Rule 15(a) – 3 basic rules of amendment
1) Plaintiff has a right to amend ONCE before defendant serves her answer
Hypo- Plaintiff files COMPLAINT> defendant serves MOTION- Plaintiff can still amend because
no ANSWER was served.
A MOTION is not a PLEADING.
2) Defendant has a right to amend ONCE within 20 days of serving her answer EX: forgot to raise
and affirmative defense
3) If there is no RIGHT to amend, you seek leave of court(ask permission of the court) “Amendment
shall be freely given wherever justice so requires”- this is because we like to decide cases on the
merits and not on technicalities- courts will consider how long you waited before amending and
if there will be prejudice
Nelson v. Adams- case tried against a corporation. Plaintiff won but thought that the
corporation could not pay the judgment so plaintiff wanted to amend after the judgment to add
a Defendant (rich man who ran the corporation) The trial court granted the amendment but the
supreme court said No because it would violate that individuals due process rights.
Rule 15(b) - Variance - where the evidence at trial does not match what was pleaded. It goes
beyond the scope of what was pleaded.
When there is variance either:
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a) The other side will not object- in this case we treat the pleading as though it is amended to
show the new information- Amend the pleading after the trial to conform to the evidence
b) The other side DOES object- in this case the evidence is inadmissible but even at trial, the
party can request leave to amend. Can do this only if 1) This new evidence sub serves the
preservation of the merits 2) the other side cannot prove prejudice in maintaining their case
on the merits
Rule 15 (c) Amendment after the statute has run
1. Rule 15(c)(2) Amendment is to add a new claim after the statute has run
Hypo- file complaint on the 1st, the statute runs on the 10th, and wants to amend on the 15th
Amended pleadings will relate back if it concerns the same transaction, conduct, or
occurrence as the original pleading. Relation back means you treat it as though it was filed
with the original pleading – the reasoning behind this is the defendant is already on notice
so there is no extra burden placed on the defendant.
2. Rule 15(c)(3) Amendment is to add a defendant after the statute has run.
This is allowed if you sued the wrong person the first time around, but somehow the
right person knew about it, and can be charged with knowledge of if, and that but for
that mistake he would have been charged in the original complaint.
3. Rule 15(c)(1) can have relation back if a statute allows it
VIII. Joinder
Joinder determines the scope of the litigation- how many parties can be joined and how many claims
can be asserted in a single case. Every joinder question will have 2 parts 1)joinder rule2) federal subject
matter jurisdiction- every claim brought in federal court must have a standing in federal subject matter
jurisdiction.
First determine whether there is procedural FRCP rule that allows for the joinder of the party or claim in
this case. If there is a joinder rule then go to the Second step and look to see if the claim or party is
supported by federal subject matter jurisdiction . If there is no subject matter jurisdiction under federal
question or diversity of citizenship, look to see if there is supplemental jurisdiction(1367).
A. Claim Joinder by the Plaintiff – Rule 18(a)- Plaintiff can assert any and and all claims against the
Defendant- do not have to be transactionaly related – applies to all claimants(cross claim) – this
is a procedural rule; once this rule is met make sure to look if there is subject matter jurisdiction.
B. Claim joinder by the Defendant
1. Counter claim- claim against an opposing party {do not confuse with cross claim} this is donewhen the defendant goes on the offensive and sues the Plaintiff rather than previously
discussed defensive measures such as affirmative defenses and denials.
P>D
P<D- counterclaim
There are two kinds of counterclaims:
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a. Rule 13(a)- Compulsory counterclaim: A claim by the Defendant back against the Plaintiff
that arises from the same truncation or occurrence as the plaintiff’s claim. A compulsory
counterclaim must be asserted in the present case unless the defendant has already
brought suit on the matter or else Defendant has waived the claim and cannot bring the
claim in a separate action.{ only claim that must be used or else it is waived}
Is this claim supported by subject matter jurisdiction(supplemental)???
b. Rule 13(b)-Permissive counterclaim- A claim that does not arise out of the same transaction
or occurance as that of the claim brought by the Plaintiff and it does not have to be asserted
in the present case but you may assert it here (you can bring it in a separate action) –
procedural rule that allows for the bringing of the claim.
Is the Claim supported by subject matter Jurisdiction(supplemental)???
Hypo 1- Car crash between a citizen from Pennsylvania (Plaintiff) and citizen from Ohio
(Defendant) both are injured. The claim is for $100,000- this claim can be brought in federal
court because it invokes diversity of citizenship(both parties are from different states and
involves more than $75,000) The OHIO Defendant has a compulsory counterclaim against
Pennsylvania Plaintiff(arises from same transaction) for $80,000. Can this claim be joined in
federal court? Rule 13(a) provides a procedural rule for Ohio Defendant to assert this claim
because it involves same transaction and occurrence- not only may he assert the claim but
he must assert it or else he waives the claim. Additionally, there is subject matter
jurisdiction of this claim under diversity of citizenship- both parties are from different states
and the claim exceeds$ 75,000.
Hypo 2- Car crash between a citizen from Pennsylvania (Plaintiff) and citizen from Ohio
(Defendant) both are injured. The claim is for $100,000- this claim can be brought in federal
court because it invokes diversity of citizenship(both parties are from different states and
involves more than $75,000) The OHIO Defendant has a compulsory counterclaim against
Pennsylvania Plaintiff(arises from same transaction) for $60,000. Can this claim be joined in
federal court? Rule 13(a) provides a procedural rule for Ohio Defendant to assert this
counterclaim because it involves the same transaction and occurrence- not only may he
assert this claim but if he fails to do so he waives the claim. In this case there is no diversity
of citizenship, even though both parties are from different states the claim does not exceed
$75,000. Additionally, this claim does not involve a federal question- so there is no federal
subject matter jurisdiction (EVERY CLAIM MUST HAVE SUBJCT MATTER JURISDICTION).
There is, however, supplemental jurisdiction on this claim because 1367(a) grants
supplemental jurisdiction for claims arising out of the same transaction and occurrence
(gibbs test- common nucleus of operative fact) a compulsory counterclaim will always satisfy
this requirement because by its very nature it arises out of the same transaction as the claim
brought by the Plaintiff in the original suit. 1367(b) does not take supplemental jurisdiction
away even though this is a diversity of citizenship case, because this is a claim brought by a
defendant and 1367(b) only removes jurisdiction in cases involving plaintiff in diversity
cases.
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2. Crossclaim- a claim against a co-party that must arise from the same transaction or occurrence
as the underlying dispute. Rule 13(G)- do not have to assert this claim(can bring in a separate
suit) but you may assert it here.
Hypo1- Three way car crash (everyone’s claim arises from the same transaction or occurrence)
there is no federal question and all the amounts exceed the required $75,000. Plaintiff South
Carolina sues Defendant 1 North Carolina and Defendant 2 North Carolina. There is diversity of
citizenship for the original claim because the plaintiff is from a different state as the two
defendants and the amount in controversy is over $75,000.
P(SC)>D1 (NC)-original claim
P (SC)>D2(NC)-original claim
D2 has been injured and wants to assert claims against P and D1. Against P, D2 has a compulsory
counterclaim because rule 13(a) gives procedural basis for a claim arising out of the same
transaction or occurrence (car accident) and there is diversity of citizenship because p is from SC
and D2 is from NC(different states) and the amount is for over $75,000 (even if the amount was
under $75,000 there would be supplemental jurisdiction and the claim could proceed)
P(SC)>D1(NC)-original claim
P(SC)>D2(NC)-original claim
P(SC)<D2(NC)-compulsory counterclaim
P(SC)> D1(NC)-original claim
^ - cross claim
P(SC)> D2(NC)- original claim
P(SC)< D2(NC)-compulsory counterclaim
D2’s Claim against D1 is a cross claim- D2 is not required to bring the claim in this case but may
under 13(g). There is no diversity of citizenship because both parties are from the same
state(SC). There is supplemental jurisdiction because 1367(a) grants supplemental jurisdiction
over every claim sharing the same operative nucleus of fact-same transaction or occurrence
(same car crash) and every cross claim must arise out of the same transaction or occurrence so
by definition every cross claim meets this factor. 1367(b) does not take away supplemental
jurisdiction in this case because 1367(b) can only remove jurisdiction by claims brought by
plaintiff but in this case the claim is brought by a Defendant.
C. Proper Parties
Look to see if there is a rule to join the parties then look to see if there is subject matter
jurisdiction.
1.Rule 20(a)Addresses the question of who MAY be joined by co-plaintiffs or Co-defendants in
a single case.
2 part test for joining co- Plaintiffs 20(a) and co –Defendants 20(a)(2)(must satisfy both parts
in order to be joined):
1) Do the Claims arise from the same transaction or occurrence?
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2) Do the claims raise at least ONE common question?
Once you determine that there is a rule allowing for the joining of the parties by following the 2
part test you MUST determine whether there is subject matter jurisdiction.
D. Necessary and Indispensable Parties
At the outset of the case the Plaintiff decides who he wants to include in the case, but
sometimes there is an absentee party that the Defendant wants to join into the litigation.
1. Rule 19 tells us who MUST be joined in a pending case. A necessary party MUST be joined.
Who is necessary (needed for a just adjudication)?
Three Different tests that allows for joinder of the absentee- only have to meet one:
1) Rule 19(a)(1)(a) Without the absentee, can the court accord complete relief among
those who are already joined? If No then the absentee is necessary. {promotes
efficiency-usually met because usually if not joined then the absentee will just be sued
after in a separate case}
2) Rule 19(a)(1)(b)(1) The absentee’s interests might be harmed if she is not joined
{focuses on absentees interest}
3) Rule 19(a)(1)(b)(2) Does the absentee’s interests potentially subject the defendant to
the risk of inconsistent obligations {focuses on defendants interests}
Joint tortfeosors are not necessary parties so if plaintiff only sues one tortfeasor can’t
force the other tortfeasor into the litigation as a party.
Hypo- BOB holds 1,000 shares in price line. Rod says that he and bob agreed to purchase them
together and that he paid for half and therefore the shares should be in both their names. Rod sues
Priceline to cancel Bob’s shares and have them reissued in both their names.
P(Rod)>D(Priceline)
Bob-Absentee- Is he necessary? Should the court force him into the case? Yes Bob meets all three tests
even though you only need to meet one. Under 19(a)(1) if we do not join bob then the court cannot give
full relief because no matter who wins the case there will probably be furthered litigation on the same
matter. Under 19(a)(2)(1)- if bob is not joined his interests can be harmed- if Rod wins Bob will lose his
shares. Under 19(a)(2)(2) – if bob is not joined and Rod wins the court will order Priceline to reissue the
shares and then bob will sue and if bob wins then there is an inconsistency in the orders.
2. Is Joinder of the absentee feasible? Second step under Rule 19 of who must be joined.
a. Not Feasiblea) Personal Jurisdiction – not feasible if there is no personal jurisdiction
b) Subject matter jurisdiction – not feasible if it would destroy subject matter
jurisdiction.
b. Feasible-Join absentee in the case
3. If joinder of absentee is NOT FEASIBLE the court decides whether to 1) proceed without
the absentee or 2)dismiss the case
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a. Rule 19(b) gives 4 factors on how to proceed if the joinder of the absentee is not
feasible:
1. How strong is the plaintiffs case
2. 3. whether in equity and good conscious the court can dismiss the case
4. Is there another forum in which the case can be brought?*****
If the court decides to dismiss then the absentee in called indispensable (basis for trying to get a case
dismissed under Rule 12(b)(7)-motion to dismiss for failure to join an indispensible party)
E. Impleader (also called “Third-Party Practice”) {do not confuse with interpleader} Rule 14
Joining someone new not an existing party. Allows defendant to join third party defendant
because the TPD is or may be liable to the defendant for all or part of the Plaintiff’s claim.
Claim for indemnity (whole) or contribution(part)
P>D-original parties
Non party owes indemnity or contribution- could be insurance company or tortfeasor.
TPD (brought in for indemnity or contribution)
^- Impleader
P >D- original parties
Rule 14(a) sentences 6&7 two other claims 1) plaintiff against TPD- may be asserted in pending case if
arises out of the same transaction or occurrence as the original claim. 2) the TPD can assert a claim
against the Plaintiff so long as the claim arises out of the same transaction occurrence of the
underlying claim.
1) 2)
TPD TPD
^ ^
P > D P > D
After you assess whether there is a procedural rule allowing for impleader you MUST
determine whether there is SUBJECT MATTER JURISDICTION over those claims.
Hypo 1- This case does not involve a federal question and all claims exceed $75,000. Plaintiff is a
citizen of NY and sues Defendant from California. Impleader claim is against defendant from CA
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against TPD from NY. There is subject matter over the impleader claim by the defendant on the TPD,
because the amount in controversy is over $75,000 and there is diversity of citizenship between
Defendant and the TPD –even if there was no diversity of citizenship there would be supplemental
jurisdiction because it arose out of the same transaction or occurrence and it is a claim brought by a
defendant so 1367(b) would not have removed it. TPD’s(NY) claim against the Plaintiff(NY) would not
have diversity jurisdiction but will have supplemental jurisdiction because 1367(a) grants jurisdiction
over claim arising out of same transaction and occurrence and since TPD is brought in because of his
relation to the occurrence and 1367(b) does not kill supplemental jurisdiction because TPD is not a
plaintiff. The claim by the plaintiff(ny) against the TPD(TPD) does not have diversity of citizenship
because both are from NY or supplemental jurisdiction because 1367(b) removes jurisdiction of
Plaintiff in diversity cases enjoined under rule 14 and this is a case brought by plaintiff against TPD
joined by rule 14. If the original claim was a federal question then the claim brought by plaintiff
against TPD will be fine because 1367(b) only removes jurisdiction in diversity cases and not in cases
involving federal question.
F. Intervention- when an absentee wishes to join herself as either a plaintiff or defendant- the
court can decide to place her as plaintiff or defendant but originally it is the absentee’s choice as
to what side she joins .
There are two types of intervention but in each the application to intervene must be timely(no
exact day specified):
1) Rule 24(a)(2) – Intervention of Right – this is satisfied if you can show that the absentee’s
interest may be harmed if she is not joined and her interest is not adequately represented
now.(similar to test for necessary party but there it’s the defendant who wanted to join the
absentee and here the absentee wants to join themselves)2) Rule 24(b) (2) – Permissive Intervention- Absentee’s claim or defense has at least one question
in common with the pending case. Whether the absentee can join is in the courts discretion.
After you determine whether the absentee can intervene under a procedural rule you MUST
determine whether that claim invokes subject matter jurisdiction.
With intervention of right the court will grant supplemental jurisdiction under 1367(a) but most
likely will not when it comes to Permissive intervention. 1367(b) will only take supplemental
jurisdiction away in diversity case when the absentee intervenes as a plaintiff or defendant and
the plaintiffs claim cannot be granted jurisdiction.
G. Interpleader- involves a dispute over property with multiple possible claimants.
1. Somebody holding property (the stakeholder) can force all potential claimants into a single
case.
2. Two types of interpleader:
1) Rule interpleader Rule 22 – a Diversity of citizenship case – stakeholder must be diverse
from every claimant. Amount in controversy must exceed $75,000. Use regular venue
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rules. Regular rules of service of process.( have to use if all claimants are from the same
state)
2) Statutory interpleader – you need one claimant diverse from on other claimant. You do
not need complete diversity. 1335, 1397, 2361. Amount in controversy must exceed
$500. Lay venue where any claimant resides. Get nationwide service of process- never
have personal jurisdiction ever as long as claimant is from US. (Don’t need minimal
contacts).
H. Class Action- when a representative sues on behalf of a group it is governed by Rule 23 (can
have a plaintiff or defendant class but usually it’s a plaintiff class)
1. Initial Requirements – must meet all 4 requirements
a. Rule 23(a)(1)- Too numerous for practicable joinder (no specified amount){group is too
geographically dispersed, might destroy diversity, too many that it would be
cumbersome
b. Rule 23(a)(2)- commonality- must have questions of fact or law that are common to
the group.
c. Rule 23(a)(3)Representative’s claims must be those typical of the class- want a
representative that feels the pain of the group because we want them to be an
affective representative
d. Rule 23(a)(4)representative will fairly and adequately represent the class- looks at the
client and lawyer.
The entire class will be bound by the decision but they are not parties to the suit. There is
only an issue of due process if the representative does not do an adequate job.
2. Must fit the case within one of three kinds of class actions Rule 23- only have to meet one:
1)
Rule 23(b)(1) –Prejudice Class Action- where class treatment is necessary to avoid harmto the class members or to the party opposing the class- concerned that if have separate
litigation there will be incompatible standards of conduct for the defendant(inconsistent
rulings- EG: shareholders suing for dividend disbursements- different shareholders may
be awarded different amounts or not win at all -Usually when there is limited funds
available gives everyone a chance to be awarded something.
2) Rule 23(b)(2)- Party opposing the class acted on grounds that are generally applicable to
the class, and that makes an injunction or declaratory judgment appropriate. - where
plaintiff is after an injunction.
3) Rule 23(b)(3)-Damages Class-
2 requirements that must be met:a) Must show that common questions predominate.- already know that you need
commonality but here the commonality has to be the most important part of the
suit.
b) The class action is the superior method for resolving this dispute.
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EX: mass tort- buss goes off the mountain and 80 people are injured the common
question is whether the driver was negligent. This common question of negligence
predominates all other issues. And it is far more efficient to litigate together.
When a court agrees to hear a case as a class action it is called certifying the case as
a class action- “certified class action”
3. Notice to the Class
In a Rule 23(b)(3) Class action the Class representative pays(learned from eissen case) to
give individual notice to all members reasonably identifiable as stated by rule 23(b)(2). Must
tell Class-members that:
1) They may opt-out.
2) They will be bound if they do not opt-out
3) They may enter a separate appearance through counsel if they want
No notice is required in a B1 or B2 class action ONLY in a B3 class action
4. Every class member is bound by judgment except those who opt out of a 23(b)(3) class
action.
Richard D. Freer- Civil Procedure Disc 8 IX. Discovery
A. Required Disclosures
1. Rule 26(a) – Parties must produce 3 different times in the course of litigation even if they
are not asked to
a) Rule 26(a)(1) Initial Disclosure within 14 days of
i) Must identify people and documents with discovery plan conference
discoverable information that you may use to support your claims- you do not
have to disclose the information if you are only planning on using it for the
purpose of impeachment
ii) Plaintiff must give a computation of damages
iii) Defendant party must tell about insurance that she has for all or part of a claim-
even though it is not admissible in court
One can avoid initial disclosure only through 1) court order 2) by stipulation –
some cases are exempt from initial disclosure Rule 26(a)(1)(e)
b) Rule 26(a)(2) Experts
c) Rule 26(a)(3) Trial Evidence – must be filed with the court
a, b,c, must be served on the other side- this is not a formal service Rule 5(c) first class
mail the other side gets extra 3 days to respond.
B. Discovery Tools – All can be used to get information from a party
1. Deposition - Rule 30 & 31 Person gives sworn oral statements taken transcribed by a court
reporter. Questions can be written or oral but answers are always oral. Can depose a non
party but you must subpoena them or they do not have to appear.
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Subpoena Duces Tecum- person being deposed has to appear and bring things with them
ex: Documents, pictures
You cannot depose more than 10 people without a court order unless both parties agreed to
it by stipulation.
A deposition is 1 day of 7 hours Maximum unless there is a court order or both parties agree
by stipulation to allow for longer.
2. Interrogatories - Rule 33 Questions in writing that are answered in writing- can only be sent
to parties and NOT to NON parties . Must be answered under oath within 30 days or 33 days
if sent by mail. No more than 25 interrogatories unless there is a court order or both parties
agree by stipulation.
3. Request to Produce – Rule 34 Ask to see something someone has Rule 34(c) can request
from a non party only with a subpoena
4. Physical or Mental Examination – Rule 35 Can only be done to a party or someone in the
custody or legal control of the party(does not include an employee of an employee- usually
refers to a parent child relationship)
Ex: you are injured by a bus and sue the bus company your cannot force the driver to get
examined even if you think the accident was caused by his faulty vision
Examination needs a court order. Must show the issue is in controversy and show good
cause- higher standard for examinations because we don’t want unnecessary burdens being
placed on either side.
5. Request for Admission – Rule 36 Only on parties – not on NON parties. It is a request y one
side to the other to admit the truth of a discoverable matter Ex: admit or deny that you ran
the red light Failure to deny CAN be treated as an admission.
Rule 26(g) Requires council to certify that discovery requests are not frivolous or from an
improper cause Rule 11 does not apply to discovery documents it is covered by Rule 26(g)
Parties sign the discovery answers under oath.
C. Scope of Discovery
1. Standard Rule 26(b)(1) Anything RELEVENT to any CLAIM or DEFENSE of any party(Dec.
2000). Before this rule you could discover anything relevant to the subject matter of the
case (anything relevant to the entire case) NOW- can only discover information relevant to
the claim or defense you can’t make new claims or defenses during discovery that were not
set forth in the pleading (this narrows the scope of discovery) The court has the authority
after being shown good cause to expand the scope to anything t the case.
2. BUT cant get everything that is relevant. There are certain things that are protected from
discovery.
a) Privileged Material – Confidential communications Ex: lawyer/Client, Doctor/Patient, Spouses,
Priest/Pennant
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b) Work Product – Hickman v. Taylor (1947) Common law doctrine for Work Product Protection.
Rule 26(b)(3) – Preparation materials (work product) that is prepared in anticipation of
litigation; meaning they are prepared with an eye towards litigation. This does not include
monthly routine reports. The reason behind protecting work product is 1) avoids fee loading 2)
allows for greater employment (have to pay people to discover the protected information) Work
product I immune from discovery UNLESS you can prove 1) there is substantial need AND 2)
Substantial hardship- could not otherwise attain the information EX: Interview someone but
then the guy leaves the country some work product has absolute protection such as mental
impressions, conclusions, opinions, and legal theories.
D. Discovery Sanctions - Discovery is usually worked out among the parties but if there is a
problem the court will get involved.
1. Rules
a) Rule 37(c)(1) – Addresses what happens when a party fails to make one of the required
disclosures
b) Rule 37(c)(2) – Addresses what happens when a party fails to admit something that
should have been admitted under Rule 36
The party who made the mistake has to pay the other side the cost of the expenses the
other side incurred because of the omission
c) Rule 26(c) – The one from whom discovery is sought asks the court for a protective
order Ex: the request is over burdensome
2. Sanctions
a) Partial failure to comply – Party answered some requests but not all Ex: answered only
some questions-Minor Sanctions
b) Total failure to comply – Harsher Sanctions Ex: don’t appear at deposition When you
make a motion for sanctions you have to certify that you acted in good faith to confer
with the other side.
Sanctions available
Partial failure- Can make a motion to compel the answers under Rule 37(a)(2). You can also
recover attorney’s fees for cost of bringing the motion if you win the motion. This motion
makes them have to comply with the rest of the discovery demand. If you get the motion to
compel, but the other side violates the order than under 37(b)(2) you get big sanctions,
costs and attorneys fees for the motion, and the other side can be held in contempt of court
because they violated a court order.
Total failure to comply – Rule 37(d) - Don’t need a motion to compel can get automatic large
sanctions, and recover costs and attorney’s fees. You can’t put the other side in contempt
of court because there is no court order that was violated.
Rule 37(b)(2) - lists the kinds of sanctions available
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Rule 37(d) i) striking the pleadings II) disallowing evidence – examples of sanctions
x. Pre-Trial Adjudication- getting rid of a case before it makes it to trial
A. Voluntary Dismissal- Rule 41(a) –Where the Plaintiff wants to dismiss the case.
3 Ways for a Plaintiff to voluntarily dismiss a case
1) Stipulation of the parties
2) Court Order
3) Plaintiff may dismiss without prejudice once by serving a notice of dismissal before the defendant
serves her answer or motion for summary judgment.
The second time you file a motion to dismiss it is with prejudice - case is over and cannot then go and
reassert the claim.
B. Involuntary Dismissal- Rule 41(b)
Three ways to achieve involuntary dismissal:
1) Failure to Prosecute- plaintiff is not moving to case along –no activity
2) Failure to abide by the Federal Rules
3) Failure to abide by a Court Order
Court can raise these dismissals on their own it does not have to be brought as a motion by the
defendant (link v. maulbauch railroad) but the court will usually warn the plaintiff first through an orderto show cause (OSC)- an order requiring the plaintiff to show good cause as to why the case should not
be dismissed. 12(b) defenses would also constitute grounds for an involuntary dismissal. Any 12(b)
dismissal will serve as a dismissal on the merits meaning that it is dismissed with prejudice and cannot
be brought again unless based on jurisdiction, venue, indispensable parties, or the court said so.
C. Default
1. Rule 55(a) – the Plaintiff must request the entry to default from the clerk of the court when the
defendant has not responded within 20 days after service of process.
Plaintiff cannot receive award from default dismissal unless they get a default judgment under Rule55(b)(1) – can get a default judgment from a clerk of the court(this is when there is a set amount) but if
u don’t meet the requirements to get one from the clerk you go to the judge underRule 55(b)(2)
A plaintiff cannot recover more or a different kind of relief other than what was asked for in the
complaint in a default motion –Rule 55(c)
D. Rule 12(b)(6) Motion- Demurrer - Motion to dismiss for failure to state a claim
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The court does not look at evidence {unlike in summary judgment}. Instead, it looks only at the face of
the complaint. After reading the complaint the court asks whether if the plaintiff proved everything
stated in the complaint would the plaintiff then win the claim- does the court recognize as a matter of
law what the plaintiff said happened. Ex: plaintiff fails to meet all the elements of a claim
12(b)(6) motions are usually granted with leave to amend- gives the plaintiff another chance to state aclaim.- sometimes more than one chance is given because we like to judge cases on the merits and not
on technicalities.
E. Motion for Summary Judgment – Rule 56
1. Court can look at evidence
2. Standard for granting a Motion of Summary Judgment: Rule 56 (c)
1) Moving party must show that there is no genuine issue as to any material fact, and
2) that she is entitled to judgment as a matter of law.
Trial is only to decide issues of fact so if there is no dispute on a major fact the court can just rule as a
matter of law. Court looks at admissible evidence (items under penalty of perjury- depositions,
interrogatories) and admissions. Pleadings are not evidence except if they are verified pleadings-signed
under oath by both parties. Pleadings are relevant in summary judgment because they may contain an
admission- if in answer defendant did not deny a fact asserted in complaint.
Courts reserve all doubts in favor of the non moving party. Summary judgment is always discretionary –
even if you meet the standard the judge does not have to grant the motion. If inferences from the facts
are equally plausible then you must deny summary judgment under matsushita if the judge sees one
inference from the facts to be more plausible than the others then she may grant summary judgment.
The defendant can win on summary judgment by showing that the plaintiff has a whole in the evidence-
forces plaintiff to show evidence. Summary judgment Is rarely granted to the party who has the burden
of proof at trial(plaintiff). Tougher to get SJ in tort cases-credibility is usually issue for the jury to decide.
Judge can never weigh affidavits – decide issue of material fact. Ex: car crash both parties disagree as to
who ran the red light. Defendant moves for SJ providing affidavits from many respectable people. The
plaintiff needs to provide evidence because pleadings are not evidence or he loses. If plaintiff provides
even one affidavit form a druggie SJ cannot be granted because there is a question as to a material issue
of fact.
Can have partial summary judgment granted- knocks out only some of the issues- less issues to litigate-
but not all.
XI. Trial and Related Motions
Motions Related to the Trial
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1. Motion for Judgment as a Matter of Law(JMOL){directed verdict} – Rule 50(a) – the judge steps
in and takes the decision away from the jury
You can move for this only after the other side has had its chance to present its case. The
defendant has two chances to raise this motion 1) after plaintiff presents its case 2) after
defendant presents its case. Plaintiff only has one chance to raise this motion and that is after
both sides have presented their cases. JMOL is same as summary judgment but it is just at a
different part- summary judgment looks at evidence before trial and JMOL looks at evidence
presented at trial. Standard for JMOL: Reasonable people could not disagree on the result- no
dispute on material fact
2. Renewed Motion for Judgment as a Matter of Law { judgment notwithstanding the verdict} –
Rule 50 (b) – the judge has let the case go to the jury, and the jury has returned a verdict for one
party. The court enters a judgment. The losing party brings this motion and if the motion is
granted, we take the judgment away from the person who won the verdict and we enter
judgment for the person who lost the verdict. Same standard as JMOL: the jury did not reach
the verdict that reasonable people would agree on
A Motion for Judgment as a Matter of law after all the evidence is shown is a prerequisite for a
Renewed Motion for Judgment as a Matter of Law. – only defendant can screw this up because
they have 2 chances to move for JMOL but can only go for RJMOL if moved after ALL the
evidence has been shown. Party making the motion must move within 10 days of the entered
verdict.
3. Motion for New Trial- Rule 59(a) – Judgment has been entered but there have been errors at
trial that require the case to be retried.
Reasons for new trial
Judge made an error
New evidence was discovered after the trial that could not have been found out before
Prejudicial misconduct of a party, juror, or attorney
Party making the motion must move within 10 days of the entered verdict.
Can have an entire new trial or a partial new trial- only try part of the case ex; just try
damages.
A new trial can also be conditional – 1) remtittur- jury awarded too high amount of damages
that shocks the conscious of the judge- so the judge tells the winning party that he can
either take a lesser amount or have a new trial 2)additur- jury gave an award too low so the
judge tells the losing party unless you agree to pay a higher amount I will grant a new trial –
violates 7th amendment so unconstitutional in FEDERAL COURT
XII. Appeal
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A. Final Judgment Rule- court wraps up the whole case- in federal court there is only final
judgment - must appeal within 30 days of entering the final judgment.
You cannot go to the court of Appeals until the trial court enters a final judgment- decision
on the merits for the entire case has been decided. Make your objection on the record as
the issue happens but preserve your right for appeal until final judgment has been entered.
Cannot appeal judgment on summary judgment, judgment to compel, new trial
Grant or renew of final judgment is ok because it is a final judgment.
B. Interlocutory Review- some states allow for rulings as the issues arise
1. 1292(a) – certain interlocutory orders that are reviewable as a right
2. 1292(b) – Allows appeal of an interlocutory order if the trial judge certifies that it involves a
controlling issue of law and that there is a substantial ground for difference of opinion. The
court of Appeals must also agree to hear the interlocutory appeal.
3. Rule 23(f) – Court of Appeals has discretion to review an order either granting or denying
class action status.
4. Rule 54(b) – Involves cases with multiple claims or multiple parties. The trial court can
expressly direct final judgment as to one or more of these and can make an express finding
that there is no just reason for delaying appeal.
5. Collateral Order Rule- Gives the Court of Appeals discretion to take an interlocutory issue,
but three things must be true(cohen):
1) It must raise an important issue that is separable from the merits
2) The court order completely resolves that issue
3) The issue is affectively unreviewable if we wait until final judgment.
11th amendment – states immune from certain suits
6. Extraordinary Writ- An original proceeding brought in the appellate court asking for an
order compelling the trial judge to do something or to vacate an order.
C. Standard of Review
1. Question of law –Court of Appeals gives no deference to the trial court
2. Finding of Fact by a Judge- Court of Appeals can reverse only if it finds that the trail judge
was clearly erroneous.
3. Finding of Fact by the Jury- Entitled to enormous deference by the Court of Appeals.
Judgment is okay if the jury might reasonably have found this.
4. Discretionary Issues- Reviewed by the Court of Appeals under the s discretion standard. The
Court of Appeals will allow whatever the trial court did unless the trail court judge abused
her discretion.
XIII. Preclusion Doctrines
In a preclusion cases you will always have a first case that has a final judgment entered and a
second pending case, and the question is does the judgment from the first case preclude us.
The court will apply the preclusion rules of the state in which the first case was litigated.
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A. Res Judicata/ Claim Preclusion – You get one case in which to vindicate your claim- can only sue
on a claim once so ask for all relief possible.
1. You must show that CASE 1 and CASE 2 were brought by the same claimant {usually plaintiff
but can be a defendant in a counterclaim} against the same defendant {not just the same
parties, but in the same configuration}
2. CASE 1 must have ended in a valid final judgment on the merits- only verdict in favor of the
plaintiff is seen as on the merits. But if plaintiff loses rule 41(b)- involuntary dismissal- but all
involuntary dismissals are seen as adjudication on the merits unless based on jurisdiction,
venue, indispensable parties, or the court said so. Semteck- the court dismissed the case
but the second court heard the case anyway because it was in a different court. On the
merits means can’t re-file in the original court.
3. CASE 1 and CASE 2 must involve the same claim. Majority – transactional – all claims arising
out of the same transaction – single wrongful act test- focus on wrongful act of the
defendant. Minority- look at the rights invaded- primary rights theory- ex: right to bodily
sanctity is different from your right to have your property protected.
Hypo1- Lucy and Ethel are in a car crash and CASE 1- Lucy sues Ethel for personal injuries
arising out of the collision. Valid final judgment is entered. CASE 2- Lucy sues Ethel for
property damage. Is Lucy’s claim in Case 2 precluded by Case 1? Step 1- the claim is brought
by the same claimant (LUCY) against the same defendant (Ethel) step 2- have final judgment
entered on the merits for case 1 step 3- according to the majority the claim will be
precluded because the personal injury and the property damage both arose out of the same
transactional occurrence (car crash) but according to the minority the claim would not be
precluded because personal injury and property damage invoke 2 different primary rights.
Merger- what you call Claim Preclusion when the claimant won case 1
BAR- - what you call claim preclusion when the claimant lost case 1
Hypo 2- Lucy and Ethel are in a car crash and CASE 1- Lucy sues Ethel for personal injuries
arising out of the collision. Valid final judgment is entered. CASE 2- Ethel verses Lucy for
injuries arising out of the same car crash. Is Ethel’s claim precluded? NO, because Ethel has
not yet had her day in court- CASE 2 involves a different claimant and defendant than that of
Case 1.
While the claim is not precluded it may fall under a compulsory counterclaim that had to be
brought by Ethel in case one or else her right would be waived and the court will dismiss the
claim under compulsory counterclaim rule and not under claim preclusion.
B. Collateral Estoppel/ Issue Preclusions
There was an issue litigated and decided in CASE 1 and the effect of issue preclusion is to say
that that issue has already been established and cannot therefore be re-litigated in CASE 2.
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1. Show that CASE 1 ended in a valid final judgment on the merits.
2. Show that the same issue was actually litigated and determined in CASE 1. – default
judgment does not give issue preclusion.
3. Show that the issue on which we want collateral estoppels was essential to the judgment in
CASE 1- without that finding we would not have the same judgment.
EX: Lucy sues Ethel for car crash in a contributory negligence state. Finding of Ethel’s
negligence is non essential but negligence of Lucy is.
4. Against whom is collateral estoppel being used? You can only use collateral estoppel against
someone who was a party to CASE 1. (or in privity with a party-representative, successor) –
due process requirement.
5. By whom is collateral being asserted? Mutuality but is not required by due process different
jurisdictions can rule differently. Mutuality- can only be used by someone who was a party
in CASE 1. Trend recently is to reject Mutuality to allow for non mutual issue preclusion- the
party using issue preclusion is not a party in case 1. This can come up in a few ways: 1) non
mutual defensive issue preclusion- person using issue preclusion is not a party in case 1 and
she is the defendant in case 2. 2) Barney is driving aunt B’s car and has a collision with Andy.
Aunt B is vicarious liable for Barney, Case 1 Andy v. barney- barney wins. Final judgment
entered. CASE2- Andy sues aunt b- no claim preclusion because different claimant and
defendant. Can aunt be get issue preclusion on Andy’s negligence? As longas Andy had a
full and fair opportunity to litigate in case 1 she can in most jurisdictions today because Aunt
B is the defendant in case 2. 3) non mutual offensive issue prelucion – person seeking to
use collateral estoppel was not a party to CASE 1 and is the plaintiff in case 2- Barney is
driving aunt B’s car and has a collision with Andy. Aunt B is vicarious liable for Barney, Case 1
Andy v. barney- barney wins. Final judgment entered. CASE2- brought by aunt b against
Andy- first 4 elements met- majority view will most likely not permit the issue preclusion
but a minority will allow it if you can show the court that it would be fair under the
circumstances if certain factors are met. 1) defendant had a full and fair opportunity to
litigate in case 1 2) the defendant could have foreseen multiple suits 3) person trying to use
issue preclusion could not have easily have joined in case 1. 4) no inconsistent judgments
Hypo- Airline sued for negligence by P1 and is found not negligent. P2 brings suit and airline
wants to bring issue preclusion but cant because does not meet step 4- cant use issue
preclusion against someone who was not a party in case 1.
Hypo- CASE 1- Airline sued for negligence by P1 and is found guilty of negligence. Case 2-P2
sues the airline can p2 use collateral estopell? 1-3 clearly met. 4 is met because it is being
used against the airline that was a party in case 1. Step 5- issue preclusion is being used by a
non party so it is non mutual by a plaintiff –majority would not but modern trend using the
fairness factors would.