SUBJECT MATTER JURISDICTION OF THE FEDERAL COURTS.................................................3FEDERAL QUESTION JURISDICTION.........................................................................................................................3

U.S. Const. Art III, § 2........................................................................................................................................... 3DIVERSITY JURISDICTION..........................................................................................................................................3SUPPLEMENTAL/PENDENT JURISDICTION.............................................................................................................5

28 U.S.C. § 1367..................................................................................................................................................... 5Aggregation............................................................................................................................................................ 7

REMOVAL..................................................................................................................................................................... 7

THE PHASES OF A LAWSUIT................................................................................................................8PLEADING.....................................................................................................................................................................8THE COMPLAINT.........................................................................................................................................................8

“Plausibility” in Pleading................................................................................................................................... 9Specificity in Pleading:.................................................................................................................................... 10Consistency in Pleading................................................................................................................................... 11Honesty in Pleading:......................................................................................................................................... 12

DEFENDANT’S RESPONSE TO THE COMPLAINT..................................................................................................13Default.................................................................................................................................................................... 13Pre-Answer Motions and Rule 12(b) Defenses......................................................................................14The Answer........................................................................................................................................................... 14The Reply............................................................................................................................................................... 16Amendments to the Pleadings...................................................................................................................... 17

PRE-TRIAL DISCOVERY...................................................................................................................... 18SCOPE AND RELEVANCE..........................................................................................................................................19PRIVILEGE................................................................................................................................................................. 20THE DISCOVERY DEVICES.......................................................................................................................................21

Required Disclosures........................................................................................................................................ 21Interrogatories.................................................................................................................................................... 21Depositions........................................................................................................................................................... 22Requests for Production of Documents.................................................................................................... 24Medical Examinations..................................................................................................................................... 25Requests for Admissions.................................................................................................................................. 25The “Work Product” Doctrine/Trial Preparation Materials...........................................................25Experts.................................................................................................................................................................... 26Discovery Abuse and Sanctions.................................................................................................................... 27

PRE-TRIAL ALTERNATIVES TO ADJUDICATION........................................................................28SUMMARY JUDGMENT..............................................................................................................................................28

TRIAL....................................................................................................................................................... 30JURY RATIONALITY AND LIMITS ON JURY POWER.............................................................................................30JUDGMENT AS A MATTER OF LAW (DIRECTED VERDICT, JNOV)..................................................................31

Renewing Motion after Trial (JNOV).........................................................................................................31Verdicts and New-Trial Motions................................................................................................................. 32

APPEAL.................................................................................................................................................... 33THE FINAL JUDGMENT RULE.................................................................................................................................33

AUTHORITY TO ADJUDICATE IN A FEDERAL SYSTEM: PERSONAL JURISDICTION........35Challenging PJ:.................................................................................................................................................... 36

“MINIMUM CONTACTS” AND ITS DISCONTENTS – QUESTION 1: IS IT CONSTITUTIONAL?........................36

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Specific v. General Jurisdiction..................................................................................................................... 37Notice and Service of Process....................................................................................................................... 38Venue....................................................................................................................................................................... 39

COMPLETED ADJUDICATION: THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL............................................................................................................................................... 39

Identity of Parties: Privity and Representation....................................................................................40Final Judgment and “Judgment on the Merits”.....................................................................................40Mutuality and Nonmutuality........................................................................................................................ 41

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Subject Matter Jurisdiction of the Federal Courts Remember to analyze claim by claim: federal court must have jurisdiction over

every claim in the case Challenging SMJ:

o Can be raised by any party to the action (12(h))o Sua sponte : courts may raise issue on its owno No time limits, even appeal

1) Independent Basis: does each claim have an independent basis for federal jurisdiction?

2) Supplemental Jurisdiction: if some claim does not have an independent basis, does it arise out of the same transaction or occurrence as one that does? (same common nucleus of operative facts) = so related that it forms part of the same case or controvery

a. Federal Question: does the claim arise under federal law? -must be part of well-pleaded complaint

a. Federal Question: if same common nucleus of operative facts, then SJ okay

b. Diversity: -amount in controversy exceeds $75k-have US citizen + diverse party -is every P diverse from every D?

b. Diversity: 1. jurisdiction based soley on § 1332?1332(b) -is the claim made by a P?-are parties joined by Rule 14, 19, 20, 24? – if yes, no SJ(c) if no, is there a reason for the court to refuse? (discretion)- novel or complex issues of state law- state law claims substantially dominate- claims with original jurisdiction have been dismissed- other compelling reasons for declining jurisdiction

Federal Question Jurisdiction

U.S. Const. Art III, § 2 Gives district courts the authority to hear all cases arising under the

Constitution Enumerates and limits cases for federal courts If case does not fall into one of these categories, unconstitutional for fed.

Court to hear it28 U.S.C. § 1331: Federal Question

Statute passed by Congress giving district courts original jurisdiction of all civil actions

Grants federal jurisdiction over cases arising under federal law “all civil actions arising under Constitution, laws or treaties of the U.S.”

Remember to look at the law that creates the cause of action to determine whether it falls under federal or state law

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Concurrent jurisdiction (not exclusive) Constitution v. 1331

“All cases” broader than all civil actions? Mottley interprets it this way so that if Congress wants to change the

statute they can – interpret Constitution broadly and statute narrowly Under the Constitution, courts could hear cases like Mottley, but because

of 1331 they can’tLouisville & Nashville Railroad v. Mottley (1908)

For a civil action to “arise under” the Constitution, it must be included in the plaintiff’s complaint

o Anticipated defenses are not part of “well-pleaded complaint” Even though Constitution would allow P or D to raise

question of federal law, courts interpret § 1331 as only for the complaint

Always look at claim – not mere existence of federal law State contract dispute

Concurrent/General jurisdiction : state courts can take cases that federal courts also have jurisdiction for

Exclusive jurisdiction Patents, admiralty

Diversity JurisdictionArticle II, § 2

Allows fed courts to exercise J over controversies between citizens of different states and between a state, or the citizens thereof, and foreign states, citizens or subjects

28 U.S.C. § 1332 (a)-(c), (e) Statute that imparts limit on federal courts to hear cases based on diversity

only if they exceed $75,000o Without interest + costso But includes all forms of damages

And between: o Citizens of different stateso Citizens of a state and citizens or subjects of a foreign state

(alienage)o MUST have US citizen on both sides

Lawfully admitted aliens for permanent residence are treated as equivalent to citizen of the state

(a)(3) partially repeals complete diversity requirement o Allows for federal jurisdiction when there is an alien on both sides

if there is otherwise diversity of citizenship U.S. Const. Art III § 2 – jurisdiction over “controversies … between citizens of different states” The legal representative of a decedent’s estate is deemed to be a citizen

only of the same State as the decedent

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§ 1332 (c)(2)o Interpreted by Marshall to require complete diversity under § 1332, even

though not expressly in statute and Constitution only requires minimal diversity

Complete diversity = no party on one side may be a citizen of the same state as any party on the other side

o For purposes of diversity jurisdiction, a partnership is regarded as having every one of the partners’ domiciles (unlike corporation)

E.g. labor uniono Doesn’t matter where the parties sue for purposes of diversity jurisdiction o Matters if the parties are diverse at the time of the suit, not whether they

were diverse before or when the incident arose Redner v. Sander (S.D.N.Y. 2000)

Can be a citizen of the US and not a citizen of any state for purposes of diversity jurisdiction

Individual has at most one domicile for purposes of diversity jurisdiction

Domicile = 1) place of permanent abode with 2) intention of staying there

To determine, examine the most recent point in the past which domicile was clearly established, and then ask if anything has changed since then?

Redner was clearly domiciled in France at some point (was there for 10 years), nothing has changed to establish CA domicile

Person can only have one domicileo Intent to stay can arise after arrival Hawkins v. Masters Farms, Inc.

Complete diversity case (although Constitution requires only minimal diversity)

Where the decedent was at the time of his death living in Kansas with his new wife for several months, even though he maintained ties to Missouri (driver’s license, mail, application for life insurance, paycheck) his domicile was deemed to be Kansas no complete diversity

Physical presence was in Kansas, and demonstrated intent to stay with wife in Kansas (need both)

Hertz Corp. v. Friend (2010) § 1332 (c)(1) A corporation will have as many as two states

State of incorporation State of Principal Place of Business

PPB = “nerve center”. To establish PPB, look at: Headquarters Direction, control, coordination of activities by those

running corporation Location of board meetings Not necessarily where appears to public

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Question of fact Why?

Big federal caseload, taking advantage Don’t overburden fed courts with what are essentially state

law claims Corp. outside US alien, but could also have state citizenship if has

PPB inside US Arguments against diversity jurisdiction

Huge portion of fed court’s caseload No vital function b/c prejudice based on state citizenship no longer

an issueo Statute’s language supports approach, one should interpret for simplicityo Concurrent, never exclusive – but may be removable

Why would lawyer want to get into federal court? Dockets may be slower in state courts May know of a favorable judge Maybe better jury “rules of evidence” maybe a little different

Supplemental/Pendent Jurisdiction

28 U.S.C. § 1367 Legal justification for supplemental jurisdiction = efficiency, convenience and

fairness to litigantso Both claims come from same common nucleus of operate facts o Would be awkward to permit parties to join closely related claims

(Rule 18) and then preclude federal courts from hearing entire case (a) = constitutional power to exercise supplemental jurisdiction over claim

with no independent basiso Over all claims so related as to form part of the same case or

controversyo Includes claims that involve joinder or intervention of additional

parties (b) withdraws supplemental jurisdiction for diversity claims by persons made

parties by certain rules. o Rule 14: Third Party claimso Rule 19o Rule 20: Rule that provides for more than one P or Do Rule 24o Or if additional P joined under Rule 19 or 24o Process :

1) Is the sup jurisdiction under 1332? 2) is the claim made by P? 3) are the parties joined under one of the rules?

(c) = discretion for (a) – should decline to exercise sup jurisdiction?

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o novel or complex issues of state lawo state law claims substantially dominateo claims with original jurisdiction have been dismissedo other compelling reasons for declining jurisdiction o Not always most efficient – must investigate state law

Why? Judicial economy – so P doesn’t have to bring two separate cases

about the same facts Ordinarily federal courts are not thought to have jurisdiction over state

claims – makes 1367 anomalous United Mine Workers v. Gibbs

Suit brought in US Dist. Ct. under Labor Management Relations Act (federal statute) = independent basis for federal jurisdiction + state law claim (conspiracy)

State law claims are appropriate for federal court if a. They form a separate but parallel ground for relief b. Also sought in a substantial claim based on federal law.

if entire action before the court comprises one constitutional casea. Common nucleus of operative facts

Doctrine of discretion, not P’s right – need not be exercised in every case it is found to exist

Article III allows jurisdiction over entire “cases”, not just particular claims

Tried before existence of § 1367 – created language that ended up as basis for statute

In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (Ill. 2007) Federal Truth in Lending Act & state fraud claims Claims are so related to make one case or controversy

a. Need some kind of adjudication of the appraisal claim to prove actual value of the home no fraud claim without showing value of the home is less than what it was appraised for = intertwining

Compare facts necessary to prove elements of both claims Whether the state claims can be resolved or dismissed without

affecting the federal claimsa. If remedy can only be given once one claim is adjudicated

Must be no explicit reason to deny Szendrey-Ramos v. First Bancorp (2007)

Federal claim: Title VII employment law violation State law claims: wrongful discharge, violations of state constitution,

defamation, tortious interference with contracts State law claims are distinct from federal claims and have own

elements of proof (unnecessary to establish Title VII claims) State law claims predominate over federal claims

a. Outnumberb. What is it really about?

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i. Retaliation and wrongful discharge, with Title VII thrown in – really a case about state law, insignificance of federal claim

Novel and complex issuesa. Interpreting legal ethical rules in relation to her speaking

publicly will determine validity of claim – not yet decided by courts

b. Federal courts should not get ahead of state courts in determining novel issues

To make (c) argument, must first establish (a) and (b)

Aggregation A single plaintiff with two or more unrelated claims against a single

defendant may aggregate claims to satisfy the statutory amounta. Supplemental jurisdiction covers when one is over

$75,000 and the other is less (aggregation not necessary in this case)

If two plaintiffs each have claims against a single defendant, they may not aggregate their claims if they are regarded as “separate and distinct”

a. If they have a joint claim, then can aggregate If two plaintiffs each have a claim against a single D, one of them

must meet the amount-in-controversy before the other can bootstrap If one does meet the amount in controversy, the other can

add on if comes out of same events (supplemental jurisdiction)

If original claim is over $75,000 then counterclaim can be heard regardless

Only applies to what P can actually recover P’s demand controls, unless legal certainty that he could not recover

the jurisdictional amount (e.g. punitive damages)

Removal

1) Is the case nonremovable by statute?

2) Would the case have had original federal jurisdiction?

Appropriate wherever would be if brought in fed. court in the first place

a. Federal Question: Removal authorizedb. Diversity Jurisdiction Only possible if all Ds are

domiciled out-of-state where claim is brought

c. Supplemental Jurisdiction Fed. Court can choose to remand supplemental state law claims

28 U.S.C. § 1441(a), (b), (f), § 1446(a), (b), § 1447 Permits D to remove from state to federal court

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1441 (a) – authorizes removal only of any civil action which would have had original federal jurisdiction1441 (b) When based on diversity of citizenship: If any D is a citizen of the state where the claim is brought, can’t remove if it is a state law claim – even if could have been brought in federal court1441(c) Defendant removes, federal court can severe or remand1441 (f) – permits an action that was improperly brought under state court to be removed to federal court (rather than having to file a new action)

Unlike federal court, where they would make you refile in state court (§ 1367 allows for 30 day tolling period to refile in proper court)

Removal only goes one direction – state to federal court Includes other claims that federal court has the power to hear under supplemental

jurisdiction (appropriate whenever would have been appropriate in the first place)o P or D cannot choose to severe o Fed court can remand or dismiss supplemental state claims1446 governs procedure for filing the notice of removal 1447 governs procedure after removal generally

The Phases of a Lawsuit{insert diagram}

Pleading Set forth claims to relief and defenses Gives other side notice of disputed terrain Sort out relevant questions of law Get rid of issues agreed upon Consist of allegations

To prevail P must prove what has plead – pleadings are not evidence Text of rules has not changed, but Supreme Court has interpreted them as

requiring more Expense of litigation

Shift to code-pleading

The Complaint

1) Basis for SMJ 2) Statement of facts showing P is entitled to relief

3) Strength of Inference 4) Special Matters? e.g. Fraud

Must allege basis for court’s J over ALL claims

Must collectively establish elements of claim-Note: sometimes conclusions are okay e.g. D was negligent

Twombly: take away conclusory statements – is it at least as likely as alternative? Iqbal: is it more than plausible?

Common-law FRCP 9(b): circumstances must be stated w/ particularity, but scienter may be alleged generallyPLSRA (Tellabs): requires particularity for both

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Legal sufficiency of complaint : does the complaint state a claim upon which a remedy could be offered?

o State factso Statement of jurisdictiono Entitlement to reliefo Request for relief

Common-law and Code pleading Gillipsie v. Goodyear Service Stores (N.C. 1963)

The complaint was dismissed because it did not include material, essential ultimate facts constituting the cause of action, but rather conclusions

No factual basis to which court could apply law The adequacy of a particular allegation is a function of what the

law actually says Code-pleading should be simple and clearly state the facts

Pleading under the FRCP The Elements of a Cause of Action

FRCP 7(a), 8 esp (a), 10 FRCP 7 (a) – delineates the 6 types of pleadings that may be filed

in federal court Complaint Answer to complaint Reply to counterclaim Answer to crossclaim Third-party complaint Third-party answer Court may also order a reply to an answer or counterclaim

FRCP 8 – “notice” pleading protocol for federal courts Requirements, procedures, consequences 8(a) – short and plain statement

FRCP 10 – establishes form required for pleadings and motions Separate numbered paragraphs

Haddle v. Garrison complaint Doesn’t matter that employment was at-will because the D

harmed the P in a way that falls under the interpretation of person or property

Haddle v. Garrison (1998) Supreme Court ruled that loss of at-will employment fits

into definition of injury to property in statute means that now the complaint is legally sufficient (as others after it would be too)

Interpret injury broadly Mitchell v. Archibald & Kendall (7 th Cir. 1978)

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Previous case law doesn’t permit the inference in the complaint

o P argued for an extension of premises definition, not that P was on the premises (but suing under premises-liability duty) = no issue of material fact – not sufficient

“Plausibility” in Pleading Strength of inference:Bell Atlantic Corp. v. Twombly (2007)

Seems to require that the inference put forward by the complaint is at least as likely as an alternative explanation

Above speculative level Not about particularity, but whether the non-conclusory allegations

give rise to the plausible inference that the complaint attempts to establish

Higher threshold than reasonable Ashcroft v. Iqbal (2009)

Makes clear that Twombly was not limited to antitrust of any other subcategory of cases

Instructs courts to disregard “conclusory” allegations, then decide whether remaining non-conclusory allegations appear “plausible”

Says officials likely had a nondiscriminatory intent (fact-finding?) Raises the bar for Ps to get past motion to dismiss for complex

cases and particularly those where P is not likely to have the best evidence prior to discovery

Must be stronger than plausible inference Also not about particularity

Specificity in Pleading:

Common-Law Fraud and Securities Fraud Stradford v. Zurich Insurance Co. (S.D.N.Y. 2002)

Under ordinary principles of pleading, this claim would likely satisfy, but in fraud complaint must state with particularity the circumstances

o Who, what, where Failed to provide fair notice of precisely which statement(s)

they alleged to be falseo Said Dr. lied, but did not ID lie

FRCP 9(b) Requires particularity of pleading for fraud or mistake

circumstance State of mind “scienter” can be plead generally by usual

Rule 8 standardo Remember we still have to deal with heightened

pleading standard from Twombly & Iqbal

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Common law fraud – don’t need strong inference; that’s for PSLRA

Fraud uniquely bad for D’s reputation; protect against 15 U.S.C. §§ 78u-4(b)(1)(B)

Details pleading standard for securities fraud actions Must specify each statement alleged to be misleading State with particularity all facts upon which belief of

mental state is formed Tellabs v. Makor Issues & Rights, Ltd. (2007)

PSLRA Test set forth: When the allegations are accepted as true

and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?

Requires BOTH particularity AND strength of inferenceo Rule 9(b) says the opposite – scienter can be stated

generally; Tellabs says it must be stated with particularity

Strong inference : pleading requirement satisfied if at least as strong as inference of alternative explanation

o May take into account plausible opposing inferences, but inference doesn’t need to be the most plausible

o Which allegations can be considered when assessing whether the strong inference has been satisfied – look at all of the allegations, not just those stated with particularity

Inconsistent with Twomblyo Twombly seems to say inference needs to be more

than just as likely (for regular claims), but Tellabs says all you need is 50/50 – sounds like a higher standard

o If Congress passed a statute, must have been trying to make it harder for securities fraud Ps to get into discovery

o Watering down? o If put aside Twombly, Tellabs makes pretty good

sense

Civil Rights and Qualified Immunity Leatherman v. Tarrant County Narcotics (1993)

Supreme Court decided that a federal court may not apply a heightened pleading standard to civil rights cases alleging municipal liability

Municipalities do not have qualified immunity

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o Even though qual imm is an affirmative defense, potential existence sometimes pressures court to hold Ps to higher pleading standard

o Individuals do

Consistency in Pleading FRCP 8(d)

Allows party to state as many separate claims or defenses as it has, regardless of consistency

Pleading is sufficient if any one of claims is sufficient On motion, judge can decide to sever cases

McCormick v. Kopmann (Ill. App. 1959) The fact that the two allegations of the complaint were

logically inconsistent does not illegitimate the complaint

So long as the different causes of action are clearly demarcated, read only within themselves, and don’t spoil each other

P was uncertain which set of facts were true (if she should have known then could not plead in the alternative) – Rule 11 prevents lying

Generally settle on one before go to trial

Honesty in Pleading: FRCP 11

Establishes standards attorneys and parties must meet when filing pleadings, motions, or other documents

Applies to any written paper filed in court signed in accordance with FRCP 11 (a)

Regulates circumstances imposing sanctions 11(b) Restricts a lawyer’s ability to file pleading when he has no

more than a hope that favorable facts or law will emerge Also applies to later advocacy Governed by objective reasonableness (not subjective

intent)o Under the circumstances

11(b)(1) No improper purpose11(b)(2) Warranted by existing law or nonfrivolous argument for extension of Factual contentions (including denials – 11(b)(4)) have

evidentiary support or will likely have upon further investigation 11(b)(3)

11(b)(c) – issue may be raised by opposing party motion or by court

o 21-day “cooling off” period Lawyers, responsible parties (law firms, partners, unrepresented

party) may be sanctioned

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Monetary, nonmonetary (striking pleading, establishing contested fact in favor of D) are sanctions

No monetary sanction against represented party (c)(5) for legal issue, but can for factual issue ?

Golden Eagle v. Burroughs (9 th Cir. 1986) Legal frivolousness case One frivolous argument does not make an otherwise valid motion,

pleading, paper unmeritorious No requirement to differentiate position supported by

existing law v. one that would extend it Lawyers need not cite contrary authority Sanctions are only permitted when pleading is frivolous, but NOT

argumentWalker v. Norwest Corp. (8 th Cir. 1996)

Massey (attorney)’s allegation of diversity without pleading complete diversity amounted to legal frivolousness (11(b)(2)) and thus sanctions were appropriate

No way that pleading a client’s citizenship and only some of the opposing parties’ is warranted in existing law

Not 11(b)(3) because his problem was the things he didn’t allege, not facts that he did allege

Christian v. Mattell, Inc. (9 th Cir. 2003) Rule 11 does not authorize sanctions for discovery abuses or

misstatements made to court during an oral presentation; only filed papers and pressing issues that have since become unsustainable and lawyer knows it

List of conduct singled out by court included relevant claims (not looking at the date on Barbie) as well as non-relevant ones (tossing barbies off table)

(b)(3)

Allocation of Pleading Burdenso Burden of pleading burden of proofo Gomez v. Toledo (1980)

Qualified immunity is an affirmative defense and therefore the plaintiff is not required to address it – need only allege the two requirements of § 1983 claim.

Here it is not in the statute, but if it was use commas, verbal cues that seem like they signal an exception

Justification: Supreme Court hospitable to civil rights actions Don’t require too much of Ps

o Jones v. Bock The court ruled that exhaustion in a prison malpractice case should

be regarded as an affirmative defense since it is not specified by statute and the usual practice of other cases is to not require too much of plaintiffs

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Defendant’s Response to the Complaint

DefaultFRCP 55 – procedure for entering and setting aside default judgments 55(b) If sum is certain or easily computable, clerk may enter

default Otherwise, court

55(c) court may set aside default for good cause Default judgment of liability stands but P has to prove up damages,

unless it is straightforward sum (contract) or easily calculated

Pre-Answer Motions and Rule 12(b) DefensesFRCP 12

Technical objections, which don’t speak to the merits of the substance of the cause of action

Governs not only complaint but counterclaim (any pleading) 12(a) – answers to complaints must be served within 21 days of

service, extended to 60 days by waiving service 12(b) – enumerated defenses may be asserted by responsive

pleading or motion1. Subject-matter jurisdiction

a. Not waived2. Personal jurisdiction3. Improper venue4. Insufficient process

a. Challenges adequacy of summons5. Insufficient service of process

a. Challenges manner in which complaint/summons were delivered to D

6. Failure to state a claim upon which relief can be granted

a. “So what”b. Can be raised at any time

7. Failure to join a party under Rule 19 Limited to one pre-answer motion raising a 12(b) defense,

cannot raise 2-5 later if did not do it the first time 12(c) – judgment on the pleadings Can combine any defenses into one motion 12(e) – motion for more definite statement

o must be made before responsive pleading Waiving: 12(h)

o If defense was available when moved for moved definite statement, then waived (e.g. insufficient service of process), but if it was not available, then can still raise it (e.g. 12(b)(6)

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The Answer

Denials FRCP 8(b) – defenses, admissions and denials

o Short and plain termso Must fairly respond to substance of allegationso Parties deemed to have admitted all allegations they

do not denyo General denial rarely used anymore (never true that

no allegation in complaint is true e.g. trivial things) “I didn’t do it” Zielinski v. Philadelphia Piers, Inc. (Pa. 1956)

o Facts: Plaintiff sued Defendant, alleging Plaintiff was injured by a forklift owned Defendant and operated by Defendant’s employee, which Defendant generally denied in its answer to the complaint. After the statute of limitations had passed, discovery revealed that Defendant did not own the forklift and Defendant’s employee was not operating the forklift. Plaintiff sought a pretrial order that Defendant admitted ownership of the forklift and agency of the operator of the forklift, on the grounds that Defendant’s general denial was ineffective.

o D’s denial was too general to comply with Rule 8(b) – should make clear what he is denying and what he is admitting

o D fostered P’s mistake by omissiono Court holds denial ineffective, holds wrong D

liable but only because they have the same insurance co. (money will come from the same place)

o Could have had amended complainto If current version of 15(c) had been in place at the

time, could image it relating back – notice and mistake

Affirmative DefensesFRCP 8(c)

Affirmative defense = any fact asserted by the respondent that vitiates the opposing party’s claim

Misguided counterclaims will be deemed affirmative defenses

All aff defenses must be raised as aff defenses or they are waived

a. But liberal amendment procedures

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Not exclusive (can have affirmative defense that’s not on the list)

Prevent unfair surprise“Yes, but…”

Layman v. Southwestern Bell Tel. Co. (Mo. App. 1977) The right of easement is an affirmative defense (consent

issue) based on pre-existing law D has plead only a general denial – nothing would prepare

opposing side for relevance of easement document If pleading does not logically encompass evidence going

to bring into trial, evidence should not be admitted

A Special Affirmative Defense: the Statute of LimitationsUnited States v. Kubrick (1979)

When should the statute of limitations begin to run? Holding: the tort accrues when the plaintiff knows the

existence and cause of injury Requires “reasonable inquiry” on the part of P, diligent

pursuit Reasons : don’t want stale claims, right of D to move on,

death or disappearance of witnesses, encourage P to bring claim promptly, ill-motivated claims

Fraudulent concealment can toll statute

Counterclaimsa. Unlike affirmative defense, counterclaims must be answered by

P 7(a)(3)FRCP 13

Divides counterclaims into compulsory and permissive Compulsory :

o If it arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim

o Falls within ancillary federal jurisdiction even if no original jurisdiction

o Barred by res judicata if not asserted in first lawsuit No supplemental jurisdiction over permissive

counterclaims o Can be brought later

13(g) Allows for crossclaims against co-parties if same “transaction or occurrence”

Judicial efficiency Plant v. Blazer Financial Services (5 th Cir. 1979)

For a truth-in-lending cause of action, the defendant’s counterclaim for an unpaid debt is compulsory.

Example of a cause of action created by statute that recruits borrowers as enforcers of regulatory goals of statute

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Really a § 1367 problem Tests for “same transaction or occurrence”:

o Are the issues of fact and law largely the same? o Would res judicata bar a subsequent suit on D’s

claim absent the compulsory counterclaim rule? Dumb test – compulsory counterclaim is

barredo Will substantially the same evidence support both

claims? o Is there a logical relation between the claims?

= same aggregate of operative facts Seems equally murky as same transaction or

occurrenceb. State court – may not regard any counterclaim as compulsory,

depends on state

The ReplyFRCP 7(a) – designates 6 six types of pleadings allowed (exhaustive)

1) Complaint 2) Answer to complaint3) Answer to counterclaim designated as a counterclaim4) Answer to crossclaim5) Third-party complaint 6) Answer to third-party complaint7) Court-ordered reply to answer

Amendments to the Pleadings Conflict between easy amendment and prejudice

PrejudiceFRCP 15(a)

o 15(a)(1) Provides automatic right to amend pleadings a single time within 21 days after service

If it requires a responsive pleading, may be amended within 21 days of responsive pleading or motion, whichever is earlier

o 15(a)(2) Outside circumstances in (1), can’t just amend without asking Court should freely give right to amend when justice so

requires Beeck v. Aquaslide ‘N’ Dive Corp. (8 th Cir. 1977)

o Plaintiff was injured while using a water slide and sued who he believed to be the manufacturer of the waterslide. Defendant initially admitted it had manufactured the waterslide, then upon realizing it had not, filed leave to amend its answer to the complaint.

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o Difficult amendment case – choosing between two evils (how can D testify to manufacturing something he didn’t design) v. “prejudice” to P

o Held trial court did not abuse discretion in allowing amendment six months later and allowing a separate trial

o If tried together, Aquaslide would be prejudiced – crucial issue be tried separately

Relation BackFRCP 15(c)

o Governs when amended pleading under Rule 15(a) or (b) will be treated as though it was filed on the date of the original pleading.

o Relevant for statute of limitations o When amendment arose out of same conduct, transaction, or

occurrence set out in original pleadingo Pre-answer motion suspends time for filing answer: prolongs period

for amendments as a matter of courseo Will relate back if allowed by judge o Amendment can still be proper even if it doesn’t relate back (if it’s still

within its own SOL)o Can amend at trial, if justice so requires – as long as provisions of

15(c) are satisfiedo 15(c)(1)(C) Two requirements:

party received notice of action w/in time for service of original complaint, AND

Knew that, but for mistake of proper identity of party, action would have been brought against her

Distinguish mistake as to identity of party and as to who was negligent, for instance

Moore v. Baker (11 th Cir. 1993) Test for same conduct, transaction or occurrence:

Whether the original complaint gave notice to the D of the claim now being asserted

The original complaint for violation of informed consent contained nothing that would put D on notice of malpractice claim no relation back

Notice = justification for relation back 15(c)(2)

Bonerb v. Richard J. Caron Foundation (W.D.N.Y. 1994) Trial court decision will be reversed only by showing an abuse

of discretion (type of decision rarely overturned on appeal) The counseling malpractice allegations derive from the same

nucleus of operative facts as the negligence claimo Why does Bonerb come out differently than Moore?

Maybe court giving break because changed lawyer

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In Moore, maybe court thought that if she had a meritorious negligence claim, she would have brought it in the first place

Baker had just filed for summary judgment She said doc did a good job in original complaint

Worthington v. Wilson (C.D. Ill. 1992) Complaint relates back if Ds were aware of should have been

aware they were the proper party within 120 of filing Fair to say unidentified officers will know shortly after

served on dept. 7th circuit interprets “mistake” concerning proper ID of party

as the wrong D named, not just an unknown name No relation back in this case Court begrudgingly follows precedent

Not adopted in other circuits 15(c)(3)

Pre-Trial Discovery General View

FRCP 26 – general provisions governing discovery Gives common sense boundaries Outline discovery devices – which rule to find where

1. Is the info sought relevant to a claim or defense? FRCP 26(b)(1)

2. Is the info sought being requested from a privileged source? 26(b)(1) and (5)

3. Is the information protected work product? 26(b)(3)

4. Special situation?

-need not be admissible at trial, as long as it may lead to info admissible at trial

-effective only if asserted-protects only the source, not the facts

-document/tangible thing-prepared in anticipation of litigation-by/for representative

-Medical experts: very limited discovery for non-testifying experts FRCP 26(b)(4)

-must not be overly burdensome (b)(2)-if medical exam, must show condition in controversy & good cause (higher threshold) FRCP 35

-opposing party can file motion to compel

-is it opinion? -if no, does the other party have substantial need/hardship?

-only discoverable upon showing of need (not often because usually can hire their own expert)-must be through depos and interogs

Request – objection chart

Scope and RelevanceFRCP 26(b)(1) – discovery allowed for any relevant matter to claim or defense of any party that is not privileged

Court may order discovery for relevant subject matter for good cause Little basis of resisting fishing expedition except by privilege Not limited to that admissible at trial – as long as may lead

26(b)(2) – Limitations on frequency and extent

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(A) – Court may alter limits(B) – Need not provide electronically stored info that is not reasonably accessible b/c of undue burden/cost (C): Stuff that’s relevant may not be permitted if it’s too much

i. Unreasonably cumulative or duplicative; can be obtained from other more convenient source

ii. Party seeking has had ample opportunity to obtain info by discovery in the action

iii. Burden/expense outweighs likely benefits, considering:1. Needs of case2. Amount in controversy3. Parties’ resources4. Importance of issues at stake5. Importance of discovery in resolving the issues

26(c) – Protective ordersa. To protect from annoyance, embarrassment, oppression, undue

burden or expense 26(b)(1) - if something seems like it could reasonably lead to discovery

of admissible evidence, don’t bar it Davis v. Precoat Metals (N.D. Ill. 2002)

a. Race/national origin discrimination caseb. The P’s discovery request for discrimination complaints made

against D on the basis of race or national origin between 1998-2002 was narrowly tailored to the specific allegations of the complaint grant motion to compel responsive documents

i. Not necessarily true of any action, court relied on distinctive aspect of employment discrimination revolving around concept of pretext (specific to Title VII cases)

c. 26(b)(1) permits discovery into any nonprivileged matter that is relevant to any party’s claim or defense

d. relevant = reasonably calculated to lead to discovery of admissible evidence

e. Limits : i. Unreasonably cumulative or duplicative

ii. Another source is more convenient, less burdensome, less expensive

iii. Burden/expense of proposed discovery outweighs its likely benefit

Steffan v. Cheney (D.C. Cir. 1990 )a. Constructive discharge for homosexual origin in military –

claiming that shouldn’t be the basis for legal action against himb. P’s reasons for not answering deposition question of whether he

ever engaged in homosexual activity during his service: i. 5th Amendment privilege against self-incrimination

ii. Not relevant

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1. Relevant to remedy seeking (reinstatement) not claim – grounds on which agency took the actions

2. Threshold question : would the info sought help the party seeking it prove or defeat the claim in question?

c. Judicial review of administrative action is confined to the grounds upon which the record discloses that the action was based

Privilege FRCP 26(b)(1) and (5) No definition – state courts rely on state laws; federal court on federal laws

except in diversity cases where should be governed by appropriate stateo Laws of evidence that create privilege, not FRCP

Protects info from certain sources, NOT the underlying facts Have effect only if party asserts, can be waived

o Waiver can result from action inconsistent with claiming privilege Disclosing matter to third party From taking certain stances in litigation – e.g. pleading

emotional state Failure to assert

Attorney-client privilege : only protects communication between lawyer and client from discovery, not protect from responding to discovery of facts just because they were told to attorney

26(b)(5) – Claiming Privilege “clawback provision”o If party withholds info, they must:

Expressly make the claim, AND Describe the nature of the docs w/o revealing info but in order

that the opposing party can assess the claimo After notified of privilege, receiving party must :

Promptly return, sequester, destroy info/copies Must not use/disclose until resolved Take reasonable steps to retrieve info if party disclosed May present info to court under seal for determination of claim Producing party must preserve info until claim is resolved

If opposing counsel believes the info is important and not privileged, should file motion to compel under Rule 37(a)(1) – court will then decide whether privilege applies

The Discovery Deviceso Can vary with local district court rules – judge has power to supervise,

limit, expand (extremely broad)o Rule 37 – must in good faith confer, attempt to resolve problems before

seeking order from court

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Required Disclosureso FRCP 26(a) – initial disclosures: must exchange w/o being requested

by opponent If fail to disclose, can’t use later Unless info comes up later during discovery, it’s okay

o FRCP 26(a)(1)(A) – at the commencement of discovery each party must disclose:

The ID of witnesses Likely to have discoverable info May use to support claims/defenses Not for impeachment – calling into account witness

credibility Description of documents by category and location Computation of each category of damages

Can inc. wages, etc. Insurance info

P wants to know if any money to satisfy judgment Useful to know if insurance co. will be handling

defense

InterrogatoriesFRCP 33

(a) (1) Party may serve 25 written interrogatories including “all discrete subparts”

If need more, can ask court Local rules may provide different maximum

(a) (2) – Scope: any matter relevant under 26(b)(b) Answers and Objections

Responding party Time to Respond – 30 days Each must be answered separately and fully under oath Objections must be stated with specificity

If not stated in timely objection – waived unless court excuses for good cause

Must be signed by person who answers, and attorney must sign objections

E.g. work product, privileged matter(d) – Option to Produce Business Records

If burden is substantially the same for either party, allows requesting party to come over and look for themselves (shift burden to side asking for it)

Means of allocating costs of responding to certain broadly framed interrogatories

Need to specify how to locate and ID records Timing :

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o Subject to restrictions of FRCP 26(d), which postpones discovery until after conference under 26(f)

Responding party (or lawyer) has duty to make reasonable inquiries in order to answer interrogatories

Can be as evasive as rule permits Cheapest, but limited value as admissible evidence at trial Used to ID persons and docs on other side Eliminate undisputed issues Only for parties of the case To deal with disputes, see Rule 37(a)(3)(B)(iii)

o To respond to objection believed to be unmeritorious Sign – certify to best of knowledge they are accurate and correct

o If make erroneous response, have a duty to fix it under 26(e)(1) but only if it has not been made otherwise known

DepositionsFRCP 30 – procedures for taking depositions by oral examination

(a) – may depose up to 10 witnesses1. Without Leave2. With leave : party must obtain leave of court, court must

grant consistent with 26(b)(2):(A): parties have not stipulated to the depo, and:

(i)More than 10 (2)(A)(i)(ii)Already deposed(iii)Before time specified in Rule 26(d)(iv)Deponent in prison

(b)(2) Can request subpoena to bring documents (subpoena duces tecum)

Must be accompanied by request under Rule 34(b)(3) – may record by audio, audiovisual, or stenographic means without special leave of court

Still need office qualified to administer oath(b)(6) – can request deposition from corporation, etc. if don’t know who it is

Corp. has the obligation of ID’ing the right person (someone who knows about the matters stated for examination)

If corp. gives someone unqualified to answer, and then a rebuttal witness that the testimony was inaccurate – not resolved

(c)(2) – objections Must be noted on record, but examination still proceeds Can instruct not to answer only to maintain privilege,

enforce limitation ordered by court, or present Rule 30(d)(3) motion (bad faith, annoy, embarrass, oppress)

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o 37(c)(1)(A) – court has to make judgment on privilege

o Sometimes court will have to look at it – won’t really maintain privilege (but will never happen with 5th amendment privilege)

If don’t put on record, then can’t raise the objection at trialo E.g. relevance

(d)(1) – limited to one day of 7 hours Can motion to ask for more time under 26(b)(2) 37(a)(3)(B) – compels discovery response

(d)(3) – motion to terminate for bad faith, unreasonably annoys, embarrasses, or

oppresses deponent or party Timing :

o Subject to restrictions of FRCP 26(d) – postpones discovery until after conference

Can obtain leave of court to depose prior to 26(f) constraint, unless deponent is expected to leave US and certified with notice

Rule 27 exception if danger of testimony being lost Much more expensive than interrogatories

o Attorney’s feeso Court reporter serviceso But more effective in pinning down deponent – under oath,

follow-up questioning possible More useful at trial

o Hearsay, but can impeach Can be scheduled, noticed, ordered for people who are not parties

o Only device routinely applied to nonpartieso Subpoena 45(a)(2)(B)

Rule 37(a)(3)(B)(i) to compel

Requests for Production of Documents

FRCP 34(b)(1)(C) – request may specify form or forms within which must be produced

Reasonableness factor as to what kind of request to particular form

(b)(2)(E)(i) – party must produce documents as they are kept in usual course of business OR organize and label to correspond to categories in request

Electronic data : entitled to information contained in tangible things

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Can be far more expensive than yield will be worth Parties should resolve foreseeable disputes as part of FRCP

26(f) discovery conference (b)(5) – if the party believes the information requested is privileged, can’t just not answer - must acknowledge the request unless conclude document does not fall within what is asked for

Distinguish : o Request as phrased does not cover a particular

document Don’t have to say a word about it if don’t

believe it’s not within what was asked foro Particular document is within request, but argue

objection E.g. privilege, relevance, work product

under 26(b)(3) – will put the other side on notice that you have it

Art of framing requesto Not so general/vague as to give party opportunity

not to include what you are asking for, or to get mountain of documents

(c) Nonparties may be compelled to produce documents/tangible things/permit inspection under Rule 45(a)(1)(A)(iii)/(a)(D) (subpoena)

Problem of e-discovery: Incredible volume of material

o Ease of replicationo Email as dominant form of communication o Difficulty of actual “deletion”

Accessibility o Responding party: problems of how to present – coping

with stored infoo Requesting party: needs in form they can access and

understando Geographico Technical

Outdated softwareo Legacy data

Timing :o Subject to restrictions of FRCP 26(d) – after conference

No presumptive maximum – but may be limited under FRCP 26(b) For nonparty, don’t make Rule 34 request, serve subpoena To compel, Rule 37(a)(3)(B)(iv)

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Medical Examinationsd. FRCP 35e. No presumptive maximumf. The only discovery device that requires higher threshold than FRCP

26(b)(1)’s “relevance” standardi. Must show mental/physical condition is in controversy AND

that there is good cause for examg. Always requires court order

Requests for Admissionsh. FRCP 36i. No presumptive maximumj. Admissions made in response to request are deemed to be admitted

facts (only for purpose of pending litigation – not preclusive effect in subsequent litigation)

k. Except for a couple escape hatches, once you admit you can’t produce evidence that contradicts

l. Backed by FRCP 37(c)(2) i. If party fails to admit a request later proved to be true, party

may move to make them pay reasonable expenses, inc. attorney fees

The “Work Product” Doctrine/Trial Preparation MaterialsFRCP 26(b)(3)

o Test for work product: Documents/tangible things (really any kind of discovery) Prepared in anticipation of litigation

Either litigation has ensued, or prepared with consciousness that litigation was going to ensue

“because of the prospect of litigation” or primarily to aid in litigation

Has to be for the current litigation in order to qualify – necessary part of what lawyer is doing to prepare claim or defense for litigation that is imminent or ongoing

Created by/for representative Attorneys, Insurance agents, etc.

o Not automatically protected if falls under work producto Exceptions :

(i) and (ii) – if party seeking can show substantial need for materials and undue hardship in seeking to obtain same material from another source, may be discoverable, but…

o 26(b)(3)(B) – opinion work product will not be discoverable under any circumstances

Very common for judge to order redaction (if possible to separate impressions from other info) as in contemporaneous memo

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Never for oral recollections months later Analysis :

a. Start with question of whether or not it’s work productb. Then if it’s exception

Do not call work product privilege Hickman v. Taylor (U.S. 495, 1947)

Above the rule Jones Act case P’s lawyers seek to discover any statements taken from members

of the crew, etc. Written witness statements (verbatim) Memos of interviews Oral recollections

Even though the info sought may be relevant and non-privileged, some of attorney’s “work product” or “trial preparation materials” should be protected to preserve the adversary system

Want attorneys to feel free to write down thoughts, think of strong arguments to serve interests of clients

Editorialized Most information is available through alternative source No indication of prejudice Must be specific to this trial

ExpertsFRCP 26(b)(4)

Parties may depose expert witnesses who may testify at trial Draft expert reports and most comm w/ experts protected as trial prep

materials Allows only very limited discovery with respect to non-testifying experts

26(a)(2) – disclosure of expert testimony Distinguish between experts who have knowledge of facts prior to

litigation and those that are hired in anticipation of litigation Generally, even names of consulting experts are protected from

discovery

Discovery Abuse and SanctionsFRCP 26(g)

o Every disclosure, request for discovery, response or objection must be signed by at least one attorney

o Certifies that: Disclosure is complete and correct Discovery request, response, objection is:

Consistent with rules, warranted in existing law or nonfrivolous argument for extending

Not interposed for improper purpose Not unreasonable or unduly burdensome

FRCP 37

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o Court can sanction on motion or on its own Mechanisms for enforcing other discovery rules Two step process :

o Obtain order compelling discovery under 37(a)o Move for sanctions under 37(b) for failure to comply with

ordero Unless party totally fails to respond – sanctions may be

available immediately Must make good faith attempt to resolve matter first

Duty to Preserve Evidence: SpoilationSilvestri v. General Motors Corp. (4 th Cir. 2001) Not really governed by FRCP Discretion was not abused in dismissing P’s action for P’s failure to

preserve the sole piece of evidence in a products liability action claiming that the car’s airbags did not deploy as warranted

Spoilation rule : duty to preserve exists in anticipation of ligation, not just during

Spoilation = destruction or material alteration of evidence or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation

Power to impose : inherent power of the courtZubulake v. UBS Warburg LLP (S.D.N.Y. 2003) Articulates test for what duty to preserve involves and when it kicks in

= template for subsequent cases involving discovery of electronically stored info

o Trigger date (when does duty to preserve attach?) Relevant people anticipate litigation

o Scope (what evidence must be preserved?) What they know, or reasonably should know, is

relevant to the action Whose documents must be retained?

Those likely to have discoverable info that disclosing party may use to support its claims or defenses

What must be retained? All relevant documents in existence at the time

the duty arose and any created thereafter Summary of preservation obligations

Once party reasonably anticipates litigation, must put in litigation hold – have to tell employees to stop document destruction policy for evidence relevant to action

Distinction between backup tapes

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Only archive types must be retained (not emergency backup)

Three part test on whether adverse inference instruction is an appropriate remedy for spoliation

o Duty to preserveo Culpable state of mind

This circuit – negligence counts But relevance must be proven by party seeking

sanction If intentional/willful – not necessary to prove

relevanceo Evidence was relevant = would have been favorable to P

P has to show what can’t get hands on would have been beneficial

Pre-Trial Alternatives to Adjudication

Summary Judgment Challenges truth of allegations – match up evidence with substantive law

elements Either side can move for summary judgment

FRCP 56o Allows early resolution of cases in which P meets minimal burden to plead

elements of claim, but cannot prove one or more of those elementso Resolution of case (entry of judgment in favor of either party) appropriate

only if evidence demonstrates no disputed issues of material fact to be tried and that MP is entitled to judgment on undisputed facts

Always make sure evidence being evaluated is actually relevant to the cause of action – goes to proving one of the elements

(c), (e) – motion may be supported by affadavits, depositions, answers to interrogatories, admissions, admissible documents

i. Need not be admissible at trial themselves – curable problem of inadmissibility, but if evidence attached is something that cannot be put in a form that would be admissible at trial

Burden of opposing party only to show legally competent evidence upon which jury could resolve factual issues in his favor

Second question: has the NMP done enough to entitle a reasonable jury to find for the NMP?

Adickes v. Kress (U.S. 1970) a. Has the moving party done enough? b. Holding : Summary judgment was improper where Ds failed to foreclose

the possibility that policemen were present in a restaurant when P alleged

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that they conspired with a waitress to refuse service while in the company of blacks

c. Rule : Where evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented

Catrett v. Johns-Manville (US Ct. App., DC Circuit, 1985) a. Makes strong argument that MP has to do something

Celotex Corp. v. Catrett (U.S. 317, 1986) o Reverses Catrett – says MP has to come up with basically nothing (but

has to go through effort of serving discovery request) – can just point to record to show NMP’s absence of evidence

Rule 56 does not require that MP support motion with affadavits/other materials negating opponent’s claim, may be discharged by showing absence of evidence to support NMP’s case

56(c)(1)(b) – test o The fact that P’s evidence may be inadmissible is not itself fatalo Policy : purpose of SJ to isolate and dispose of factually unsupported

claims/defenseso Impact : SJ against Ps more likely to be grantedo Means: If case gets to JNOV, then someone was mistaken about not

moving for SJ (because at SJ parties have the same burden of production as they will at trial)

Bias v. Advantage International Inc. (F.2d 1990) o Agency failed to take out life insurance claimo Key issue concerning if there is a genuine issue?

Whether or not he was a drug user MP included testimony of teammates that say him use

drugs (enough to get to question 2) Ps produced testimony of coach, parents, drug tests (is it

enough if only thing juries were confronted with to entitle to find for Ps) = no

Whether there were insurers that would have supplied = whether there was any cognizable legal damage

o NMP must show more than metaphysical doubt as to material factso Not mainstream down the middle case o When addressing second question, look at NMP’s evidence in light of

D’s evidence – prevailing opinion is look at just NMP’s evidence in light of MP’s

Visser v. Packer Engineering Corp. (7 th Cir. 1991) For an employment discrimination claim, P can make a lesser

showing than but-for causation (only needs to show enough evidence to show age was a substantial factor in firing)

o Ameliorate a particular roadblock Ps face in these types of cases

o Once the P establishes that he was discharged in substantial part due to age, the burden shifts to the employer to prove

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that it would have made the same decision absent the discriminatory motive

Holding: NMP has not done enough to avoid summary judgment in an employment age discrimination action where he only has affadavits of which the pertinent parts are outside their personal knowledge (not admissible)

Need not consider MP’s evidence because P has no evidence to support claim (D would be entitled to JNOV)

o Spillinger says they did have it, but they didn’t want to deal with complicated issue

Criteria for granting summary judgment in employment discrimination case:

o Q1: Whether P has demonstrated existence of mixed motiveso Q2: Whether no reasonable juror could find that the

illegitimate motive was not a but-for cause of the unlawful firing

1) D(MP): Has D done enough under Celotex? 2) Has P shown (given enough evidence for a reasonable jury to conclude) age was substantial factor? 3) Would a reasonable juror have to find for D in absence of opposing evidence (Does D have non-discriminatory cause for firing?) 4) Could a reasonable jury still find for P? (if yes, then summary judgment should be denied) – if Posner had done this all the way through, no way summary judgment could have been granted. He understood this, but had to say P’s showing was not enough for substantial factor

1) Has D (MP) done enough under Celotex?-If yes, move onto Q2-If no, deny SJ

2) Has P (NMP) given enough evidence to entitle a reasonable jury to conclude age was a substantial factor? -If yes, move on to Q3-If no, grant SJ

3) Would a reasonable juror have to find for D in the absence of opposing evidence?(Does D have a non-discriminatory cause for the firing?)-If yes, move on to Q4-If no, deny SJ

4) Could a reasonable jury still find for P?-if yes, deny SJ-if no, grant SJ

b. Pre-Trial Conference, Pretrial Order, and Judicial Management? c. An Anatomy of Alternative Dispute Resolution Mechanisms

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Trial

Jury Rationality and Limits on Jury Power Jury:

o Only what they hear in courtroomo Not required to reach conclusion by a defensible route

Judge: Must find facts specially and state its conclusions of law separately

Reid v. San Pedro, Los Angeles & Salt Lake Railroad (Utah 1911) The trial court should have directed a verdict for the D where the P

failed to show by a preponderance of the evidence that the cow entered the right of way through a hole in the fence (D’s fault)

If two explanations are equally plausible, there is no rational basis for jury to decide which one happened

Judgment as a Matter of Law (Directed Verdict, JNOV)

Timing P has been fully heard

D has been fully heard

Verdict has been returned from jury

Who can File motion

50(a)(1) D typically files for pre-verdict JML

P can file for pre-verdict JML, or D can try again

50(b) Party may only file post-verdict JML if filed pre-verdict motion “renewed motion”

Party may file post-verdict JML, or new trial in the alternative

Standard of Review

No rational jury could find for P on the basis of the evidence

No rational jury could find for NMP

No rational jury could have decided (allowed to weigh evidence)

Erroneous jury verdict: Jury verdict is against the great weight of the evidence (okay to consider demeanor and credibility)Also can be granted for Procedural defect or can grant partial/conditional new trialsSpill: definite and firm conviction that mistake has been made-complexity of issues-credibility

Result if motion granted

Directed verdict

Directed verdict Judgment notwithstanding the verdict (JNOV)

Judge must rule on both JML and new trial (conditional)

Rule 50(c) common for MP to move to JNOV and in the alternative a new trial (but JNOV is preferred)

a. Gives specific instructions about what happens when conditional motion is made for JNOV or New Trial

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(Directed Verdict) If a party has been fully heard on an issue during jury trial and court finds no reasonable jury could find for party on that issue, court may:

b. Resolve against the party, ANDc. Grant a motion for judgment as a matter of law

D typically moves after P’s evidence, o Judge may withdraw case from jury and enter judgment as a matter of

law if loses, then moves again after D’s evidence

o Challenges sufficiency of all the evidence P may also move but not until after D’s evidence Judge may not determine credibility of witnesses – only whether jury, if chose

to believe, would have sufficient evidence to support verdict for P

Contrast with Summary Judgment: {In summary judgment, unlike with directed verdict, the moving party must make

a showing as well. If the moving party in a summary judgment hasn’t done so, then the non-moving party’s failure to meet her burden of production shouldn’t result in summary judgment.}

JML – more leeway to weigh evidence b/c have seen and heard live witnesses “no reasonable jury” v. “no genuine issue of material fact”

Renewing Motion after Trial (JNOV) Can only happen if party moved after P’s evidence

a. Allows for defects in case to be cured by requiring under 50(a)(2) that MP specify ground for motion

Pennsylvania Railroad v. Chamberlain (U.S. 333, 1933)a. JNOV was proper where the P provided only one witness with

inferences, rather than direct conflict of factb. When proven facts give equal support to each of two

inconsistent inferences, must go against P no jury could reasonably conclude one or the other from testimony

c. Spill: Court improperly questions credibility of the witnessd. If in a jurisdiction that allowed witness testimony for the truth

of what is being offered and could entitle a reasonable jury to find the other way – then could be a different result

Traditional Analysis: consider ONLY the evidence offered by the NMP

However, it is common for judges to take into account MP’s evidence but only if it makes the NMP’s evidence seem minimal in contrast

Avoids problem of 7th Amendment disallowing reexamination of fact already tried by jury (makes it a delayed decision instead)

Protects neutral principles of law from powerful forces outside scope of law – compassion and prejudice

Railroad v. Stout There was no dispute about the facts of the child having his foot

crushed in D’s railroad turntable, but went to the jury to decide

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whether it amounted to negligence – jury entitled to find this == JNOV not appropriate

Question to ask for whether something is a jury question or not: is it the kind of issue that we want decided on a uniform basis (a legal standard we can all look to) or one that should be decided on a case-by-case basis?

Verdicts and New-Trial Motions A party moving for either new trial or order altering judgment must file no

later than 28 days after judgment 59(d) – court may grant new trial entirely on its own initiative or for a reason

not stated in moving papers Lots of devices for keeping cases out of the hands of juries Difference between JNOV and New Trial:

o New Trial – type that is based on contention that the verdict was against the weight of the evidence

Not a judgment, just a new trial Okay for judge to consider demeanor and credibility where

it’s not for JNOV case Less stringent standard (more intrusive?)

o JNOV – as a matter of law showing by NMP was not sufficient to entitle a reasonable jury to find for her

Ruling of law (not fact-finding): only that evidence provided by NMP does not reach the legal standard required to entitle a reas.jury to find for her

What justifies granting a new trial? o Jury made a mistake – way to correct without wholly disrespecting

jury trial o Gives judges the right to grant a new trial based on the fact that they

saw the evidence differently than the way the jury did? (not supposed to apply 13th jury standard)

Two types: o Error in Trial process

Admitting evidence it shouldn’t have (losing party doesn’t like) Improper instructions Improper juror contacts with witnesses This can apply even when it’s a bench trial

o Verdict was against the weight of the evidence Clearly erroneous result Necessary to prevent injustice

Less costly than appeal Judge would rather have the verdict come out from a jury the way he thinks it

should rather than himself o Avoids appeal likely after judge verdicto Avoids apparent intrusion

Rule 59

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Lind v. Schenley Industries (3d Cir. 1960)o Lower court granted motion for new trial because it found jury verdict:

Contrary to the weight of the evidence Contrary to law A result of error in the admission of evidence

o New trial standard: trial court has definite and firm conviction that a mistake has been made by jury

o Appellate court standard of reviewing grant of new trial: Abuse of discretion (pretty limited standard) – generally don’t

have a good chance on appeal … deference to lower courto Trial judge should consider:

The character of the evidence Complexity or simplicity of the legal principles

o In this case, appellate court says that it was not contrary to law or an error of admission of evidence, thus only left with the first issue – then determines that the trial court judged the credibility of witnesses for the jury something the jury is entitled to find abuse of discretion

o If evidence is close, should deny motion for new trial Damages

o Can grant new trial for just the issue of damages o Can reduce amount (remittitur) unless P agrees to accept reduced

damageso Additur violates 7th Amenment

Appeal Principles:

o Fairness – parties should win or lose depending on compliance with procedural rules/quality of argument

o Justice – right party should prevail, regardless of technicalities o Heavy presumption that trial court decision is correct

The Final Judgment Rule A party may appeal only final judgments of the trial court – one which ends the

litigation on the merits and leaves nothing to do but execute the judgment; all issues must have been resolved

Usually only 30 days to appeal28 U.S.C. § 1291

o Grants jurisdiction for appellate courts to hear appeal o Codification of final judgment rule

Exceptions: FRCP 54(b) – allows for final judgment entered on one of multiple claims to be appealed

2 basic requirements:

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1) judge enter judgment on discrete “claim for relief”2) judge expressly indicate there is no reason to delay entry of

judgmentLiberty Mutual Insurance Co. v. Wetzel (1976)

Problem in this case: court found 54(b) satisfied but there was only one claim (confused having multiple claims of relief with having liability and relief)

Court thought that if it entered judgment on liability, that was appealable but failed to enter judgment on remedy – but needed to determine what relief granted in order for there to be a final judgment not appealable (so app. Ct. could not properly hear the case)

o Grant of 12(b)(6) is immediately appealable because it is a final judgment, but a denial is NOT

If there are two claims and one is dismissed under 12(b)(6) Rule 54(b) suggests that one might be immediately appealable but depends on the district court

o Court expressly has to determine no just reason to delay appeal; if they don’t, then no basis for immediate appeal

o If D loses the case at trial, D can assign (include) issues on anything that happened adversely to him from the beginning to end as one of the errors… BUT practically not likely to get a lot of solace from appellate court on these things.

The Collateral Order Doctrineo Applies to order that are so important they need to get to appeal right away o E.g. choice of forum clause in business contract; questions of qualified

immunity o Situations where it is unfair to subject D to litigation because asserted

right cannot be vindicated on appeal (e.g. QI - should not have been subjected to litigation in the first place)

Interlocutory Appealso Something that is subsidiary to final judgment – does not completely

resolve the case.. can occur any time in litigation o E.g. discovery rulings, motion for SJ, new trialCertification under 28 U.S.C. § 1292(b)

Permits a district court to certify interlocutory appeals from non-final judgments

Criteria : Order must involve controlling question of law about which

there is substantial ground for difference of opinion Trial judge must determine that allowing an immediate

appeal might materially advance the ultimate termination of the litigation

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Trial judge may certify in writing that both of the above are satisfied – discretion of trial judge

Appealing party must apply within 10 days of entry of order

Appellate court must agree to hear issue on appeal – discretion of appellate court

o If district court certifies that justice requires immediate appeal o Writ of mandamus: higher courts orders that lower court send up record.

Only available in exceptional circumstances Does not involve consent of trial court

Scope of Reviewo Issues of law

Can be reviewed de novo – fully reviewable E.g. 12(b)(6); summary judgment after P’s evidence

o Findings of fact New Trial Motion

“Abuse of discretion” (deference to trial court): no possible reasonable basis for the decision

Most difficult standard for appellate to surmount – trial judge heard the evidence

FRCP 52 bench trial “Clearly erroneous”: can only reverse if convicted trial

court is incorrecto Cannot reevaluate credibility of witnesses

Because findings of fact are so explicit, more digestible task than basis for jury’s verdict

o Ancillary rulings or application of general legal standards to numerous issues that come up that judge has to rule on

Abuse of discretion standard E.g. motion for separate trial – something the trial court has to

make a quick decision on (Kopman v. McCormick)

Rule 52o (a) – in a non-jury trial, the judge must explicitly state findings of fact and

conclusions of law upon which it bases the verdict o (c) – if a party has been fully heard on issue during a nonjury trial, court

may enter judgment against the party on a claim or defense that requires a favorable finding on that issue

Must state findings of fact and conclusions of lawPullman-Standard v. Swint (1982)

o Appellate decision reversed where they applied the wrong standard of review to the trial court’s finding that there was no discriminatory intent in P’s Title VII case

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o Appellate court said that trial court should have taken into account motivations of smaller bargaining unit – that is a question of law and fine to review de novo (whether evidence is relevant to the case)

o But then appellate court went ahead and found discriminatory intent – Supreme Court says you cannot subject to de novo standard (should have used clearly erroneous standard)

Harmless Erroro Does not affect the substantial rights of the parties – consider likely

outcome of case in absence of error Not prejudicial

o If harmless, Fed. Courts forbidden to reverseHarden v. Jayco, Inc. (6th Cir. 2007)

District court granting SJ for Ds in case of car defect based on inadmissible report was harmless error because MP could have easily gotten it in admissible form and would have been the same outcome

o Another example: judge saying something it shouldn’t have but that doesn’t make a difference to the jury

Authority to Adjudicate in a Federal System: Personal Jurisdiction Valid PJ must be established for EVERY DIf valid for one claim, then valid for the others

1) Is it Constitutional? 2) Does the Long-arm Statute in this state allows courts to assert J in this circumstance?

a. General: Does D have pervasive contact with the forum state? -if so, can be sued for anything there

a. CA: a court may exercise J on any basis not inconsistent w/ the Constitution of CA or US

b. Specific: Does D have sufficient minimum contacts with forum state? (make sure event being sued for arises out of contacts)-purposeful availment: requires some purposeful activity towards forum state

stream of commerce contract negotiated and/or

performed knowledge not enough (Pavlovich)

-includes Consent: P who files suit in forum consents to PJ for all matters arising in that lawsuit, inc. counterclaims & cross-claims

b. Florida: a D who is engaged in substantial and not isolated activity within this state, whether such activity is wholly intrastate, interstate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity-Gibbons: previous suing ≠ substantial; two years prior ≠ is engaged

c. Tag Jurisdiction: if not by force or fraud, can be sued for anything if served while in state-Scalia: minimum contacts test does not apply to D who is present in state

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-Brennan: D’s voluntary presence + service = general jurisdiction

Origins: Pennoyer v. Neff

o Mostly superseded by International Shoeo Constructive notice while D was not in the forum state not sufficient for

due process Opinion says nothing meaningful about notice because at the time,

PJ and notice went hand in hando PJ at the time was established by:

Presence in the state (in personam) – standard lawsuit to adjudicate P’s rights

Residence means are they physically present in state, not do they have property there

Property in the state (in rem) – judgment only up to the value of property, and property must be attached

“Pure”/True in rem – purports to adjudicate rights to property against all the world

o E.g. probate, registration of title Quasi in rem – purposes other than determining competing

rights to propertyo Type 1: Subject matter is the property (claim arises

out of or is otherwise related to the property) Only against named Ds (who has title of

land) E.g. quiet title

o Type 2: Attachment jurisdiction/ sequestration – freezing assets to get D to appear

Lawsuit must be initiated by attachment (can’t attach later) – would have been applicable if was done right

Common use today: freeze bank account o Collateral attack : Lack of PJ is the only universally accepted basis for

refusing to give FFC to first case U.S. Const. art. IV § 1 (Full Faith & Credit clause) U.S. Const. amend. xiv § 1 (Due Process clause)

Challenging PJ: o Better off to show up and raise defense, because if you are wrong about

your objection, then default judgment stands o Objection: 12(b)(2) – “showing up” without really showing up

“Minimum Contacts” and Its Discontents – Question 1: Is it Constitutional? International Shoe Co. v. Washington (1945)

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If D is not within state: must have minimum contacts w/ it such that maintenance of suit does not offend traditional notions of fair play and substantial justice

Presence must be systematic and continuous D received benefits and protection of laws of state gives

rise to obligations suit arose out of those activities in the state sufficient contacts

Specific v. General Jurisdiction Specific Jurisdiction : contacts that D has with forum are

sufficient to justify a jurisdiction over D for causes of action that arise out of those connections

a. The more closely related the contacts and the facts giving rise to the claim, the more likely the court is to uphold jurisdiction

General Jurisdiction : party’s connection with forum are so pervasive, we say they can be sued for anything there

a. E.g. domicile, PPB, state of incorp.b. BUT – see Burham: presence when served

sufficient for general jurisdiction World-Wide Volkswagen Corp. v. Woodson (1980)

Facts: A family that purchased a car in New York sued the auto manufacturer and retailer after they became involved in an accident in Oklahoma while driving to Arizona.

Specific Jurisdiction case Side note: contesting jurisdiction as lawyering strategy to

keep in state court (PJ must be established for EVERY D) No PJ because the lawsuit must be foreseeable, not that a

car would end up in OK D did not purposefully direct products into stream of

commerce no purposeful availment Dissent . Justice Brennan dissented. He found that the

court’s over-reliance on contacts between the defendant and the state obscures whether being subject to a suit there would actually cause any inconvenience to the defendant. Additionally, he found that because the interest in having the suit in Oklahoma was strong, given that the plaintiffs were hospitalized there and key witnesses resided there, jurisdiction should have been granted

a. Focus on fairness to Ds, but what about Ps? – local evidence, interest of forum state

Burger King Corp. v. Rudzewicz (1985) Facts: Plaintiff, a Florida corporation, and Defendants,

Michigan residents, had a franchise agreement specifying that Defendants may be subject to suit in Florida. Plaintiff sued Defendants in Florida federal court based on diversity of citizenship for non-payment under the franchise

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agreement. Defendants moved to dismiss on the grounds that Florida did not have personal jurisdiction over Defendants.

Cause of action: trademark violation once franchise wasn’t meeting goals but kept selling

Brennan’s “quid pro quo” – franchise willingly entered contract with Florida corp. brought themselves under protection of Florida law only fair to subject them to Florida courts

a. Associating in such a way that you get the benefit of their law

Spill not convinced: Not Florida law that allows them to incorporate, more convinced if know party has a relationship that you could be subject to litigation there

Pavlovich v. Superior Court (Cal. 2002) Not the typical website case – passive, not active content

(no interactivity) a. Dividing concept seems to be

interactive/solicitation kinds of concepts Purposeful availment requires some purposeful activity

towards the forum (knowledge of effects on 3rd party industries not enough)

J. McIntyre Machinery, Ltd. V. Nicastro (2011) Facts:

a. English co. sold only to U.S. dist. not under their control

b. Attended annual conventions in other statesc. Only four machines ended up in NJ

According to plurality, it is a violation of the rights of the British manufacturer to subject to jurisdiction of NJ because can’t say manufacturer purposefully directed its product to NJ

Don’t want stream of commerce to open up to litigation anywhere

Troubling point: person at the beginning of chain (big entity with deep pockets) cannot be held to account in forum where P is injured

Minimum contacts must somehow involve purposeful DIRECTION of product to particular forum

Example of how jurisdictional opinions focus on rights of D

Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) Purchases of tires at regular intervals not the kind of

continuous and systematic general business contacts necessary for general jurisdiction

Burnham v. Superior Court (1990)

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Says the International Shoe did not mean to get rid of presence in the state as sufficient for general jurisdiction (just saying it wasn’t necessary)

Transient/tag jurisdiction is valid according to this case – if not by force or fraud

Notice and Service of Processo Order:

File complaint w/ court before serving When file, get summons, then copy of complaint and summons are

served on DFRCP 4

4(c) – about actual service of process 4(d) – obviates need to do this in most cases

Can dispense with personal service if simply mail copy of complaint along with two copies of the form asking to waive service

If they respond in timely manner, then absolved of personal service and they have 60 days instead of 20

4(e) – other ways that service of process (1) – can do any way that state law provides for e.g. if they

have mail service, then could be valid in fed. Court fed. Dist. court can take occasion of state’s mode of service of process

4(m) – can take 120 days Everything specified in Rule 4 exceed Constitutional threshold

for what’s adequate Must be reasonably calculated to notify – usually comes up

in class actions o Class Actions

Long-Arm Statutes – Question 2: Does it comply with the long-arm statute? o Probably most significant where statute authorizes jurisdiction over Ds

that do things out of state but have effects within the state E.g. economic activity

o Most long arm statutes distinguish between resident and non-resident defendants

o 4(k)o Gibbons v. Brown

Held: D was not engaged in activity in state w/in meaning of the long-arm statute

Florida long-arm statute: requires more activities or contacts to allow service of process than are currently required by US Supreme Court decisions

Defendant Mrs. Brown was injured in an auto accident in a car driven by her husband, due to faulty directions given by the other passenger, Plaintiff Gibbons. Following Plaintiff’s Florida lawsuit

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against Mr. Brown, Defendant filed suit in Florida against Plaintiff to recover for her own injuries in Florida. Issue: Can Mrs. Brown sue Gibbons in FL?

Constitutional? Probably not. The court case alone is not enough to establish

minimum contacts and therefore, personal jurisdiction under the Constitution.

Court does not choose to deal with this issue. Valid under the long arm statute? Court holds that Florida does not have personal jurisdiction

over D. FL long arm statute asserts less than the full extend that is constitutionally allowed.

“Substantial and not isolated” - previously suing in the state is not is not substantial and is isolated

“Is engaged” - the lawsuit was brought two years before.

Venue

1) Determine where each party resides-if this is different from domicile, go with domicile

2) Are all Ds residents of the state in which district is located? OR 3)

3) Did a substantial part of the events or omissions giving rise to the claim occur in the district?

4) If NEITHER (2) or (3) is satisfied, then – where could ANY D be subject to PJ?

Aliens §1391(c)(3)-nonresidents can be sued in any district-permanent residents treated like U.S. citizens who reside in judicial district

*remember, PJ still must be satisfied

Substantial = relevant to P’s claim

*remember, if any D is not subject to PJ, they can have the action dismissed for lack of PJ

Corporations -deemed to reside wherever subject to PJ-multidistrict states: use district with most significant contacts-can be sued in any district in state of Inc.

Not a Constitutional requirement, but a housekeeping thing Waivable 12(b) defense Not personal (like PJ) 28 U.S.C. §§ 1391

o Method: (b)(1) – are they residents of the state? (b)(2) – substantial part of events? (b)(3) – where could any D be subject to PJ? = ANY district in

which ANY D could be subject to PJ BUT – only use if first two cannot be used

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o (c) – supplies rules for alien problems Could have a situation in which venue is appropriate, but PJ is not satisfied

Completed Adjudication: The Doctrines of Res Judicata and Collateral Estoppel

Res Judicata (Claim Preclusion): forbids a party from litigating a claim that was or could and should have been raised, in former litigation

o The Different Theories: “Same Cause of Action” vs. “Same Transaction” Frier v. City of Vandalia (7th Cir. 1985)

Second claim § 1983 barred where already litigated replevin action

Common core of operative facts (same set of circumstances) – not the exact same claim, but could have brought it and didn’t

Dissent: should use same evidence test (slightly more narrow) = older, archaic test

Must distinguish: that adjudication has taken place in the first case v. which state’s law governs preclusion of the second claim

Claim preclusion cannot operate to bar a claim that you could not have brought in case one

Also applies to counterclaims, BUT must look to the law of the rendering court for what the preclusion rules are on that

Fed court uses same transaction or occurrence test U.S. Const. Art. IV, § 128 U.S.C. § 1738

Such acts, records, and judicial proceedings shall have the full faith and credit in every court in the US as they have by law or usage in the courts from which they are taken

Court in case 1 = rendering court Court in case 2 = recognition court

o Bound to apply the law of preclusion of the rendering court

o Applies to fed. Courts as much as state courts

Identity of Parties: Privity and Representation Searle Brothers v. Searle (Utah 1978)

Actually a case of issue preclusion, not claim preclusion because parties are not actually the same

Question of whether the parties were in privity (functionally the same) – one whose interest has been legally represented

Majority unwilling to say they were in privity without knowing more about the partnership litigate

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Common example of in privity: new landowner; administrator of trust; class action; trade association

No duty to intervene Claim preclusion cannot operate unless first case was decided on

the merits Taylor v. Sturgell (U.S. 2008)

Rejects virtual representation for antique airline enthusiasts, even when it would promote efficiency

o Stare decisis will dispose swiftly of repetitive suits Compare preclusion v. precedent

o Precedent: looseo Preclusion: unforgiving

Nonparty preclusion exceptions: o Agreement by parties to be bound by prior actiono Preexisting substantive legal relationship (e.g.

successive property owner)o Adequate representation by someone with same

legal interests who was a party (e.g. trustees, guardians, etc.)

o A party “assuming control” over prior litigationo A party who loses a suit and then sues again a

representative of a classo Special statutory schemes (e.g. bankruptcy

proceedings)

Final Judgment and “Judgment on the Merits” If case is dismissed on the merits – that’s it; if it’s for jurisdiction,

then could bring again in different courtGargallo v. Merrill Lynch, Pierce, Fenner & Smith (6th Cir. 1990)

Claim that would not have had original jurisdiction in state law because exclusive federal jurisdiction not precluded because looking to Ohio state law, they do not give preclusive effect to state courts having no subject matter over original claim

Federal rule DOES give preclusive effect to prior state courts giving judgment even within exclusive jurisdiction of federal courts

Dismissal of claim for sanctions not really “on the merits” but treat it as such otherwise useless as a device

Collateral Estoppel (Issue Preclusion) “estoppel by verdict”: some issue in the claim already previously litigated

o What is an “Issue?” Something factually crucial to the claim, or an element of the claim E.g. whether someone has a valid driver’s license; contributory

negligence o “ Actually Litigated and Determined”

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Illinois Central Gulf Railroad v. Parks (N.E. 1979) No issue preclusion where there was no way to know

precisely how the case failed in the jury’s eyes Party desiring to plead judgment as estoppel by verdict or

finding upon particular fact must show it judged on that fact

Illustrates the principle that an issue has to be ACTUALLY litigated to be precluded in case two (different from claim preclusion)

Distinguish claim preclusion v. issue preclusion Default judgment: if suffer default judgment in first case,

can be precluded later from asserting claims you could have brought there.

But issues (e.g. negligence, causation) could not be subject to issue preclusion because they were not actually litigated

o “Essential to the Judgment”

Mutuality and Nonmutuality Mutual: both parties in Case 2 must have been parties in Case 1Nonmutuality: (most states) person against whom preclusion is asserted

must have been a party in Case 1 (except in cases of privity)

The Precluder Parklane Hosiery Co. v. Shore (U.S. 1979)

o Both parties don’t have to be the same (just the one it’s being asserted against) –rule in most if not all states now

o Decides to recognize collateral estoppel Exceptions:

Where there are outstanding inconsistent judgments

If in fact case one was decided under rules of procedure that are substantially different and less in case one than would be available in case two, strong case for not permitting issue preclusion to second case

o E.g. small claims courto Distinctions between offensive and defensive issue

preclusion Offensive: P seeks to estop D from

relitigating issues which D previously litigated and lost against another P

Multiple Ps going after one D Gives P incentive to wait and see

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Defensive: when P is estopped from asserting claim previously litigated and lost against another D

E.g. patent infringement Single P going after several Ds Prevents relitigating issues simply by

switching Ds strong incentive to join all potential Ds

o 7th Amendment issue of right to jury trial: no reason to think in civil case it makes a real difference no constitutional issues

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1

15 U.S.C. §§ 78u-4(b)(1)(B) · 12

2

28 U.S.C. § 1291 · 3728 U.S.C. § 1292(b) · 3828 U.S.C. § 1331: · 328 U.S.C. § 1332 · 428 U.S.C. § 1367 · 628 U.S.C. § 1441(a), (b), (f), § 1446(a), (b), § 1447 ·

928 U.S.C. § 1738 · 4628 U.S.C. §§ 1391 · 45

A

Adickes v. Kress (U.S. 1970) · 31Ashcroft v. Iqbal (2009) · 11

B

Beeck v. Aquaslide ‘N’ Dive Corp. (8 th Cir. 1977) · 19Bell Atlantic Corp. v. Twombly (2007) · 11Bias v. Advantage International Inc. (F.2d 1990) · 32Bonerb v. Richard J. Caron Foundation (W.D.N.Y.

1994) · 20Burger King Corp. v. Rudzewicz (1985) · 42Burnham v. Superior Court (1990) · 43

C

Catrett v. Johns-Manville (US Ct. App., DC Circuit, 1985) · 31

Celotex Corp. v. Catrett (U.S. 317, 1986) · 31

F

FRCP 10 · 11FRCP 11 · 13FRCP 12 · 15FRCP 13 · 17, 18FRCP 15(a) · 19FRCP 15(c) · 19FRCP 26(a) · 23FRCP 26(b)(1) · 21FRCP 26(b)(1) and (5) · 22FRCP 26(b)(3) · 28FRCP 26(b)(4) · 29

FRCP 26(g) · 29FRCP 33 · 24FRCP 34 · 26FRCP 35 · 27FRCP 36 · 27FRCP 37 · 29FRCP 4 · 44FRCP 54(b) · 37FRCP 55 · 15FRCP 56 · 31FRCP 7 (a) · 10FRCP 7(a) · 18FRCP 8 · 10FRCP 8(b) · 16FRCP 8(c) · 17FRCP 8(d) · 13FRCP 9(b) · 12Frier v. City of Vandalia (7th Cir. 1985) · 46

G

Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (6th Cir. 1990) · 47

Golden Eagle v. Burroughs (9 th Cir. 1986) · 14Gomez v. Toledo (1980) · 15Goodyear Dunlop Tires Operations, S.A. v. Brown

(2011) · 43

H

Haddle v. Garrison (1998) · 11Haddle v. Garrison complaint · 11Harden v. Jayco, Inc. (6th Cir. 2007) · 39Hawkins v. Masters Farms, Inc. · 5Hertz Corp. v. Friend (2010) · 5Hickman v. Taylor (U.S. 495, 1947) · 28

I

Illinois Central Gulf Railroad v. Parks (N.E. 1979) · 48

In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (Ill. 2007) · 7

International Shoe Co. v. Washington (1945) · 41

J

J. McIntyre Machinery, Ltd. V. Nicastro (2011) · 43Jones v. Bock · 15

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L

Layman v. Southwestern Bell Tel. Co. (Mo. App. 1977) · 17

Leatherman v. Tarrant County Narcotics (1993) · 13Liberty Mutual Insurance Co. v. Wetzel (1976) · 37Lind v. Schenley Industries (3d Cir. 1960) · 36Louisville & Nashville Railroad v. Mottley (1908) · 4

M

Mitchell v. Archibald & Kendall (7 th Cir. 1978) · 11Moore v. Baker (11 th Cir. 1993) · 19

P

Parklane Hosiery Co. v. Shore (U.S. 1979) · 48Pavlovich v. Superior Court (Cal. 2002) · 43Pennoyer v. Neff · 40Pennsylvania Railroad v. Chamberlain (U.S. 333,

1933) · 35Pullman-Standard v. Swint (1982) · 39

R

Railroad v. Stout · 35Redner v. Sander (S.D.N.Y. 2000) · 5Reid v. San Pedro, Los Angeles & Salt Lake Railroad

(Utah 1911) · 33Rule 50 · 34Rule 52 · 39

S

Searle Brothers v. Searle (Utah 1978) · 46

Silvestri v. General Motors Corp. (4 th Cir. 2001) · 29Steffan v. Cheney (D.C. Cir. 1990) · 22Stradford v. Zurich Insurance Co. (S.D.N.Y. 2002) · 11Szendrey-Ramos v. First Bancorp (2007) · 7

T

Taylor v. Sturgell (U.S. 2008) · 47

U

U.S. Const. amend. xiv § 1 (Due Process clause) · 41

U.S. Const. Art III, § 2 · 3U.S. Const. Art. IV, § 1 · 46United Mine Workers v. Gibbs · 7United States v. Kubrick (1979) · 17

V

Visser v. Packer Engineering Corp. (7 th Cir. 1991) · 32

W

World-Wide Volkswagen Corp. v. Woodson (1980) · 42

Worthington v. Wilson (C.D. Ill. 1992) · 20

Z

Zielinski v. Philadelphia Piers, Inc. (Pa. 1956) · 16Zubulake v. UBS Warburg LLP (S.D.N.Y. 2003) · 30

50