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I. Personal Jurisdiction

A. In Personam Jurisdiction

General Jurisdiction- Defendant can be sued in this forum from a claim that

arose anywhere in the world

Specific Jurisdiction- Defendant is being sued in the forum from a claim that

arose in the forum.1. Constitutional Analysis

Pennoyer v. Neff

Traditional Basis for in Personam jurisdiction

Defendant is served with process in the in the forum – General Jurisdiction

Defendant’s agent was served with process in the forum – General Jurisdiction

Defendant is domicile in the forum- General

Defendant consents to personal jurisdiction 1) willingly 2) failing to raise an objection –

General

Hess v. Pawloski- while driving in through Mass. A citizen of Pen gets in a car accident but

leaves the state before served with process. Mass. Statute and every state today has a Non

Resident Motorist Act- by driving a motor vehicle in the state you have appointed a state agent

to receive service of process. The court ruled that there was personal specific jurisdiction. The

court ruling was consistent with the traditional basis of Pennoyer v. Neff but expanded to

include implied consent.

International Shoe- The Defendant must Have such minimum contacts with the forum so that

exercise of jurisdiction does not offend traditional notions of fair play”

Flexible Can now serve defendant with process outside of the forum

Seems to have 2 parts 1) contacts 2) fairness – proved correct later in burgerking

Does not overrule Pennoyer – this is the test if there is not presence in the forum

Mcgee- Even though there was only one contact in the forum the courts upheld general in

personam jurisdiction because 1) the defendant had solicited the plaintiff in the forum 2) the

state had an interest in providing a forum for its residents to litigate 3) Relatedness- plaintiffs

claim arose from defendants contact with the forum

Hanson v. Denckla – Woman from PA. moves to Florida and continues her relationship with

Delaware bank. The court did NOT uphold jurisdiction because the Defendant had noPurposeful Availment- to have had jurisdiction the defendant would have had to have reached

out to the forum in some way.

World-Wide Volkswagen v. Woodson - No jurisdiction. Even though it was fo4reseeable that

the car would get to the forum, it was not foreseeable that the defendant would get sued in the

forum. If a corporations forum then there is general in personam jurisdiction in the forum.



Coulder – The coulder effect- Don’t have to be in the forum but if you reached out to the forum

then there is purposeful availment and personal jurisdiction

Burger King v. Rudzewicz - Two Part Test 1) Contact 2) Fairness

You must satisfy the contact element before looking at the fairness element. Sliding Scale- a

lesser amount of contacts can be compensated by a greater amount of fairness but must have

some element of contact

The burden is on the defendant to show that the forum is unconstitutional “so gravely difficult

and inconvenient that you are at a severe disadvantage in the litigation” The relative wealth of

the parties is irrelevant. Due process does not guarantee the best or even a good forum it only

guarantees one that is constitutional.

Asahi Metal Industry v. Superior Court – 4/4 split Stream of Commerce Case

1) Brennan- it is a relevant contact if you put the product into the stream and reasonably

anticipate that it will get to the other states2) O’Conner- need what Brennan said plus the intent to serve the other states EX:

advertising in the forum or having customer service in the forum.

Burnham- 4/4 Split Do you need mimimum contact if you have one of the traditional basis for

jurisdiction under Pennoyer?

1) Scalia- Presence in the forum while served with process is enough- Pennoyer Lives! No

need for further analysis.

2) Brennan- Still need minimum contact.

Helicopteros – “Continuous and systematic ties with the forum gives general jurisdiction”

2. Statutory Enquiry- In Personam Jurisdiction

a) Every state grants General Jurisdiction over a defendant who is served with process

in the forum

b) Every State grants General Jurisdiction over a defendant who is domicile in the

forum

c) Every state has a Non Resident Motorist Act that grants Specific Jurisdiction to non

residents involved in a motor vehicle accident while in the forum. (implied consent

and purposeful avialment)

d) Long Arm Statute- non residents for claims other than motor vehicle. There are 2

typed of Long Arm Statutes 1) CA. – state reaches to the full extent of due process (the statutory and constitution analysis will be the same) 2) Laundry List- a non-

resident can be sued in the state on a claim that arises from the defendant doing

something specific in the forum. The laundry list lays out a list of claims that give

specific jurisdiction ex: tort, contract. Every states language is different. Look at the

statute carefully. Different courts will interpret the same language differently.

Hypo- manufactures widgets in state A person in state B is injured by the faulty

widget. Is there a tort in state B? 1) yes- because the Plaintiff was injured in state B



and there is no tort without injury (Gray v. American Radiator) 2) no because didn’t

do anything in state B.

B. In Rem and Quasi-in-Rem Jurisdiction – Jurisdiction over Defendants property –

not his person Ex: May use In Rem jurisdiction in defamation cases because

many states long arm statutes don’t include defemation and you therefore

cannot get inpersonam jurisdiction.1) Definitions.

a. In Rem (1) – the case is about the property – ownership dispute

b. Quasi-in-Rem- Lawsuit has nothing to do with the property- use the property as the

basis for jurisdiction- use when can’t get personam jurisdiction.

2) Attachment- All states have an attachment statute

a. We can attach the property if it is property that a non-resident defendant owns or

claims to own.

b. Constitutional requirement- property must be attached at the outset of the case.

The defendant must have minimum contacts with the forum

C. Full Faith and Credit

a) If there is a valid judgment in Personum there is a judgment (obligation) on

the person himself. The plaintiff can seize defendant’s property and auction

the property to collect his payment. If after the plaintiff collects from the

property the defendant still owes him more money the plaintiff can go after

the defendant’s property in another state. The obligation follows the

defendant all over the country

b) In In Rem and Quasi-in-Rem the judgment is only good to the extent of the

jurisdiction. The judgment is only good to the value of the property- cannot

enforce it in another state.

How to tackle an exam Question

II. Notice and Opportunity to be Heard

A. Service of Process – every state has their own rules for service of process.

Federal Rule #4 governs the procedure in Federal Court- many states have

adopted these provisions.

1. Process- consists of 2 documents 1) summons- formal notice from the court that tells

the defendant that she has been sued, how long she has to respond, and tells her that if

she does not respond that risks being in default. 4(a)(b) summons is signed by the court

clerk – symbol of the governments power over the defendant (instead of arresting)

perfects personal jurisdiction. 2) copy of the complaint 2. Rule 4 (c) (2) – service of process can be affected by any non-party who is at least 18

years old.

3. Process must be served within 120 days after filing the complaint. If you do not the

court will dismiss the case without prejudice( can refile the case), unless you can show

good cause for the delay Rule 4(M) .

4. 3 methods for service of process on an individual Rule 4(e)(2)



a) Personal service- deliver the papers directly to the defendant- cab be done

anywhere in the forum state ( does not have to be at the home or office)

b) Substituted Service- has to be at the defendants dwelling house or usual abode AND

you serve someone of suitable age and discretion who resides there. (babysitter- not

good because she goes home) (butler is ok)

c) Agent Service- serve the defendants agent- can be by contract or by operation of law d) Rule 4(e)(1) – the court may also use any method for service of process that is

allowed by state law

5. Service of process on a corporation – Rule 4(H)

You must serve an officer (pres., secretary, treasurer) of managing or general agent

(varies- someone with enough responsibility to trust he will transmit the papers) of that

corporation.

6. Waiver of service – Rule 4(1) – not service of process.

Done by first class mail a form is sent to the defendant with return envelope. If she

returns it within 30 days she has waived her right to service of process but not any other

right. If she does not waive formal service the plaintiff will have to serve formally but

defendant pays the cost of the service.

7. Where can Plaintiff serve process on the defendant?

Rule 4(k)(1)(a) – Federal Court can serve process throughout the state where the courts

siets. Can also serve process out of the state ONLY IF a state court could have served

process there as well Ex: NY Fed. Court can serve process throughout the state of NY

and out of state in any state that NY state court could serve (ex: using the long arm

statute)

Exceptions:

i) 4(k)(1)(b) – Buldge Rule- can serve process from a federal court outside the

state even without a state statute IF it is within 100 miles of the court house-

does not apply to original Defendant (only to defendants joined later underRule 14 and 19)

ii) Rule 4(k)(1)(c) and (d) – federal statutes may allow for more service of process

outside the state

B. Constitutional standard for Notice

1. Mullane v. Central Hanover Bank – “Notice must be reasonably calculated under all the

circumstances to apprise the defendant of the suit”

As long as you follow the federal rules it will be constitutional (one of the 3 ways) this is

true even if the defendant never receives the notice.

Jones v. flowers- If you become aware that the defendant did not recive the notice you

may be required to take additional steps.2. Notice by Publication/ constructive notice- usually done in a newspaper. This method is

frowned upon, but in cases where the identity or location of the defendant is not know

the court may allow it as a last resort.

C. Opportunity to be heard – prejudgment seizure

Factors to protect the defendant

Defendant gets a hearing o the merits at some point

Plaintiff must give an affidavit (sworn statement) of his claim



May require that plaintiff’s affidavit state the facts in specificity

Get a writ of possession from a judge- not a sheriff

Plaintiff may be required to post a bond- if possession is improper there

is money to repay the defendant

Defendant gets the property back pending the litigation by posting a

bond.III. Subject Matter Jurisdiction – What court do we go to? State or Federal?

State Court- General subject matter jurisdiction- can hear any claim if there is personal

jurisdiction (only certain federal question claims must go to federal court).

Federal court- Limited subject matter jurisdiction

A. Diversity of citizenship – 13-32(a)(1) – code in the back of the red book

1) Must be between citizens of different states

2) Must be OVER $75,000

1. Citizens of Different statesa. Complete Diversity Rule- no diversity if any plaintiff is a citizen of the same state

as any defendant (Strawbridge v. Curtis)

b. Test for diversity when the case is filed- subsequent diversity is irrelevant

c. U.S. citizen is a citizen of the stat in which she is domicile

Domicile is established by 1) must be in the state 2) must form the intent to

make the forum your permanent home

A person can only have 1 domicile at a time. Ones domicile is ascribed to them at

birth and can be changed at 18 by following the 2 necessary steps of presence

and intent.

d. Corporations – 13-32(c)(1) A corporation is domicile in1) all states that it is

incorporated 2) the 1 state that it has its principle place of business. A

corporation can have more than 1 domicile

Principle place of business can be determined in one of 3 ways

1. Nerve control test- where the decision are made

2. Muscle center test – where most business takes place

3. Total activities test- look at nerve and muscle (most courts use this) use the nerve

center unless all the activity is done in one place Ex: all manufacturing done in one

place if activity is dispersed look to the nerve center ( decisions)

e. Citizenship of an unincorporated business - look to the citizenship of all the

members. LP- look to all partners General and limited and is citizen of all the

states. f. Representatives suing on behalf of others

a. 13-32(c)(2) suits on behalf of decedents, minors, and incompetents- look to

the citizenship of the person being REPRESENNTED- not to the citizenship of

the representative

b. Class action suit- look at the citizenship of the REPRESENTATIVE ONLY – not

to the citizenship of those being represented.

2. Amount in controversy must exceed $75,000



i) 13-32(a)(1) the claim must be over 75k (exactly 75k is not good enough) this is

not counting interest and costs

ii) Plaintiff’s claim governs unless it is clear to a legal certainty that she cannot

recover that much- very unlikely unless as a matte4r of law cannot recover that

much

iii) Plaintiff’s ultimate recovery is irrelevant to subject matter jurisdiction if Plaintiff claims 76k and only recovers 10k it is ok and still have federal jurisdiction but

under 13-32(b) if this happens the plaintiff may be required to pay defendants

costs (does not include attorneys fees)

iv) Aggregation- is where we add together two or more claims to get over 75K.

neither one alone gives 75k so we combine the claims to reach the required

amount.

Rule- can have aggregate claims ONLY if there is ONE plaintiff and ONE

defendant- even if the claims are unrelated. Cannot aggregate if you have

multiple parties on either side

Rule- if have JOINT CLAIMS you go with the total value of that claim

Plaintiff sues 3 joint tortfeasors for 76k – ok because they are JOINTLY liable.

B. Federal Question- A question that arises under federal Law both citizenship and the

amount in controversy does not matter.

How do you determine whether it is a claim that involves a federal question?

1) Look only at the Plaintiffs complaint- do not look at anything the defendant does

2) Plaintiffs claim must arise out of federal law- Well- Pleaded Rule – Look only at

Plaintiffs claim and see is if the Plaintiff is enforcing a federal right?

Motly case- congress passed statute- federal law that said R.R. can’t give out free

passes. Motly sued the R.R. and in their complaint said that the fed. Law does not apply

to them but not federal jurisdiction because they are not enforcing a right. Their claim

was that of a breach of contract.

C. Supplemental Jurisdiction

For every claim in fed. Court you must have subject matter jurisdiction. Each one must meet

diversity and 75k requirement of fed. Law question. If a claim does not meet one of these

criteria it can still make it in to fed court through supplemental jurisdiction. Supplemental

jurisdiction only gets ADDITIONAL claims into fed court.

1. Mine Workers v. Gibbs

Original claim gets the case into fed court by meeting fed question of diversity. The

second claim can get in without meeting one of the requirements if it “Shares a

common nucleolus of operative fact (same real world event) with the claim that invoked

jurisdiction” Always met if claim arises from the same transaction or occurrence.

2. Does 13-67 grant supplemental jurisdiction1367 (a) yes if meets Gibbs test of sharing

a common nucleolus of operative fact

Does 1367(b) take supplemental jurisdiction away?

a) Applies only in diversity cases- never in federal Question cases AND



b) Claims by Plaintiff- not by defendant or 3rd

party defendants brought in under

rule 19 AND

c) Claims asserted by people seeking to intervene as a plaintiff under rule 24

Have supplemental jurisdiction if meets Gibbs and 1367(b) doesn’t take it away

D. Removal –1441, 1446,1447- gives the Defendant a chance to challenge the forum. This

happens when defendant is being sued in state court but the defendant wants to litigatein federal court.

a) Removal only goes from state to federal – one way street

b) All defendants must agree to removal – 1441(c) single defendant can remove only if

a separate independent federal question is against her

c) Only defendants can remove- plaintiffs cannot

d) 1441(a) can only go to a fed court that embraces that claim- a fed. Court

incorporating that state court( the appropriate district)

e) Timing- must remove within 30 days of service of the document that first make the

case removable Murfey brothers- waited to serve formal process.

f) Can remove if the case has federal subject matter jurisdiction EXCEPT: 1) Cannot

move diversity case if any Defendant is a citizen of the forum 2) cannot remove a

diversity case more than 1 year after the case was filed in state court

IV. Venue – What federal District?

A. Basic provisions

1. IN removal cases, venue is in the district embracing the state court

2. Local actions must be brought in the district where the land ies

Local action- case about possession, ownership, or injury to real property(land) EX:

trespass

3. Rules for the transitory case ( anything that is not a local action)

a) Plaintiff has 2 choices where to lay venue 1391(a) diversity 1391(b)- federal

question1) any district where all defendants reside- if all defendants reside in different

districts in the same stet can have venue in any district in that state

Reside- usually same as domicile but for a corporation it is in all districts where

subject to personal jurisdiction 2) any district where a substantial part of the

clam arose

B. Transfer of Venue –

1. Can only move within the same system

2. Terminology

a) Trasferor- the court from which we are transferring

b)

Transferee- the court to which we are transferring3. Two transfer statutes in Federal Court- can only transfer to a place that has a Proper

veue and has personal jurisdiction and has not been waived by the defendant.

Hoffman v. Blasky

a. 1404(a) the transferor court is a proper venue, and we may transfer based on

three things 1) convenience of the parties2) convenience of the witnesses 3)

interest of justice



Moving from one good venue to another good venue that is just more

convenient. Transforee court applies the law rules the trasfor4or court.

b. 1406(a) venue in the transferor court is improper. The court may transfer in the

intest of justice or it may dismiss.

C. Forum non conveniens

1. This is where the court dismisses the case because there is a moreappropriate venue

2. Why dismiss? Because transfer is not available because the more

appropriate venue is in a different judicial system.

Piper v. Reno- plane crash in Scotland all parties from Scotland but the

plane was manufactured in America. Supreme court of Pen. Should

dismiss and force litigation in Scotland

Foot note 6- Public and private factors

Court can impose conditions on defendant when dismissing under

forum non convenience. The fact that a plaintiff can recover less by

litigating oversees is NOT determinative.

V. Challenging forum Selection- if defendant does not like the forum

A. Special Appearance Doctrine- alive in many states such as CA. if you want to challenge

just personal jurisdiction, you can appear in the court under a special appearance, so by

challenging ONLY personal jurisdiction you are not subject yourself General Jurisdiction.

At what point do you lose protection? When do anything else besides objectively to

Personal Jurisdiction.

B. Federal Rules

Rule 12 and waiver- have to raise these defenses in answer of motion or dismiss or they

will be waived. Within 20 days so as not to be in default has to answer (pleading) or

make a motion (request that the court order something)

[Can be raised ANYTIME] a) 12(b) (1) - lack of subject matter jurisdiction

[Must be the 1st

Rule 12 response b) 12(b) (2) - lack of personal jurisdiction

c) 12(b) (3) – improper venue

d) 12 (b) (4) insufficient service of process- problem with one of the documents- rare

e) 12 (b) (5) – insufficient service of process- problem with the way it was served

[Can be raised anytime through trial] f) 12 (b) (6) - failure to state claim

g) 12 (b) (7) – failure to join an indispensable party

Timing Prevision- 12 (g) & (h) - 12 (b) 2-5 Must be in 1st

rule 12 response or they waived

12 b (6) & (7) – can be raised anytime through trial

12 (b) (1) – can be raised any time- never waived



VI. The Erie Doctrine- only in diversity of citizenship cases- Federal Court has to decide a

particular issue the question is whether the Federal Court must follow state law on the issue?

A. Black letter law- the Federal Court MUST apply State Substantive Law issue of substance

v. Procedural Law Erie v. Tompkins

Because 1) rules of decision act 1652 if no state law on point use Federal law2) Constitution 10th

amendment- preserves to the state all powers that have not

been given to the Federal Government

Eirie- Question is whether the R.R. is LIABLE- substantive law= state law

1. Hanna v. Plumer – Erie doctrine is 2 doctrines . Hanna problems are NOT erie problems.

If there is a federal rule of civil procedure on point that clashes with state law, the

federal law governs.

B. Factors for applying Erie Doctrine – if no federal rule on point, but federal court does not

want to follw state law? If substantive issue then must apply state law, but if procedural

they don’t

How do you know if it is substantive?

1. Outcome determination- Guaranty trust v. York- state statute of limitations bared the

claim the fed. Court wanted to apply fed. Doctrine that would allow the case. NO fed.

Statute on point- Not a hanna problem- the court MUST apply state law. It is substantive

law because ignoring this state law would change the outcome of the case. The

outcome should be the same I n Fed. Court and in State court as far as the rules go.

Almost any rule can be outcome determinative.

2. Balancing of interests – Byrd v. Blue Ridge Rural Cooperative- state law said issue should

be decided by the judge but the fed court wanted to let the jury decide. – No fed. Rule

on point (not a hanna case) Not outcome determinative. If state law is not clearlysubstantive the fed court applies state law unless the Fed. Court has some interest in

doing its own way. In this case they did. – procedural

3. Twin Aims of Erie Hanna v. plumer dicta

a. Avoidance of forum shopping

b. Avoidance of inequitable administration of the law

If the fed. Court ignored state law on this issue would it cause litigants to flock to

fed. Court? If yes that’s a bad thing cuz It would be unfair to instate citizens because

they can’t go to fed. Court because they have no diversity issue.

If violates Twin Aims- MUST apply State Law

Gaspereeney- NY law- set standard for court to order new trial for excessive verdict-Substantive must follow NY Law

NY law- allowed appellate court to apply the standard de novo – procedural- Can follow fed.

Law

Erie Problem- Rules for tolling( stopping) statute of limitations – follow state law



VII. Pleadings – Documents that set forth claims and defenses

Modern approach- to give notice (discovery phase is to find out facts)

Common Law approach- To give notice and to uncover facts about the case

7(a) complaint + answer + optional reply or by court order

If Defendant has a counter claim the plaintiffs answer is called a reply

Most states use Federal Rules the other states use code pleading

A. Rule 11- requires attorneys to sign all documents besides for discovery documents- this certifies

that to the best of your knowledge and belief after an inquiry reasonable under the

circumstances that

a) This paper is not for an improper purposed

b) The legal contentions have evidentiary support or there is a no frivolous argument why

the law should be changed- this allows for creativity in the law

c) The factual contentions have evidentiary support or are likely to after further

investigation

d) The denial of factual contentions have evidentiary support or are likely to after further

investigation (pertains to the defendant)

Procedural matters for Rule 11

a) The certification is affective every time that document is presented to the court (continuing

certification)

b) Sanctions are discretionary- may not shall- aimed at deterrence and can be non monetary

c) A motion of violation of a Rule 11 is served but not filed

Rule 11 gives the other party a safe harbor period of 21 days to fix the problem. If they neglect

to fix the problem you can then file a Rule 11 motion

B. Complaint – the lawsuit is commenced when the complaint is filed-made by the plaintiff

Plaintiff files complaint > defendant files answer or motion> plaintiff can but does not have to

unless ordered by the court file a reply

Rule 8(a) – 3 things must be in the complaint

a) state grounds for subject matter jurisdiction

b) make a short and plain statement of the claim showing that you are entitled to relief – don’t

need a lot of facts (code pleading needs more facts) pleading must cover all elements of the claim being alleged

Contley v. Gibson – As long as the Judge can read and understand the complaint it is

sufficient exceptions: need detail for 9(b) fraud or mistakes claim must be plead with

particularity and private securities COA 9(g) items of special damages must be plead with

specificity Special Damages- those damages that do not normally flow from an event Ex:

Man left with a permanent erection form a car accident



Letherman v. Terret County – If no rule or statute requiring specificity exists the court can’t

require more detail – can’t impose a stricter standard

c) A demand for Judgment- must tell the court what you want

C. Defendants Response

Rule 12 – within 20 days of being served with process defendant will either answer or file a

motion. If defendant waived service of process he will be given Rule 4(d) 60 days from the

day the plaintiff mailed the form of waiver to the defendant in which to answer or file a

motion.

Rule 12 (b) – had to be put in answer or are waived

Answer is a Pleading

Rule 8(b) – Respond to the allegations in the complaint in three possible ways

1) Admit

2) Deny

3) Lack sufficient evidence to admit or deny- can’t use if information is in your control or a

matter of public record

Failure to deny is treated as an admission on all allegations aside from damages “If you

don’t deny your surely will fry”

In your answer you must raise all affirmative defenses according to rule 8 (c) (Ex: Statute

of frauds, statute of limitations, res judicata)Affirmative defense raises a new fact as to

why the plaintiff cannot win- must be in your answer or else you run the risk of waiving

them.

Dean Richard D. Freer –Disc 6 D. Amending Pleadings

Rule 15(a) – 3 basic rules of amendment

1) Plaintiff has a right to amend ONCE before defendant serves her answer

Hypo- Plaintiff files COMPLAINT> defendant serves MOTION- Plaintiff can still amend because

no ANSWER was served.

A MOTION is not a PLEADING.

2) Defendant has a right to amend ONCE within 20 days of serving her answer EX: forgot to raise

and affirmative defense

3) If there is no RIGHT to amend, you seek leave of court(ask permission of the court) “Amendment

shall be freely given wherever justice so requires”- this is because we like to decide cases on the

merits and not on technicalities- courts will consider how long you waited before amending and

if there will be prejudice

Nelson v. Adams- case tried against a corporation. Plaintiff won but thought that the

corporation could not pay the judgment so plaintiff wanted to amend after the judgment to add

a Defendant (rich man who ran the corporation) The trial court granted the amendment but the

supreme court said No because it would violate that individuals due process rights.

Rule 15(b) - Variance - where the evidence at trial does not match what was pleaded. It goes

beyond the scope of what was pleaded.

When there is variance either:



a) The other side will not object- in this case we treat the pleading as though it is amended to

show the new information- Amend the pleading after the trial to conform to the evidence

b) The other side DOES object- in this case the evidence is inadmissible but even at trial, the

party can request leave to amend. Can do this only if 1) This new evidence sub serves the

preservation of the merits 2) the other side cannot prove prejudice in maintaining their case

on the merits

Rule 15 (c) Amendment after the statute has run

1. Rule 15(c)(2) Amendment is to add a new claim after the statute has run

Hypo- file complaint on the 1st, the statute runs on the 10th, and wants to amend on the 15th

Amended pleadings will relate back if it concerns the same transaction, conduct, or

occurrence as the original pleading. Relation back means you treat it as though it was filed

with the original pleading – the reasoning behind this is the defendant is already on notice

so there is no extra burden placed on the defendant.

2. Rule 15(c)(3) Amendment is to add a defendant after the statute has run.

This is allowed if you sued the wrong person the first time around, but somehow the

right person knew about it, and can be charged with knowledge of if, and that but for

that mistake he would have been charged in the original complaint.

3. Rule 15(c)(1) can have relation back if a statute allows it

VIII. Joinder

Joinder determines the scope of the litigation- how many parties can be joined and how many claims

can be asserted in a single case. Every joinder question will have 2 parts 1)joinder rule2) federal subject

matter jurisdiction- every claim brought in federal court must have a standing in federal subject matter

jurisdiction.

First determine whether there is procedural FRCP rule that allows for the joinder of the party or claim in

this case. If there is a joinder rule then go to the Second step and look to see if the claim or party is

supported by federal subject matter jurisdiction . If there is no subject matter jurisdiction under federal

question or diversity of citizenship, look to see if there is supplemental jurisdiction(1367).

A. Claim Joinder by the Plaintiff – Rule 18(a)- Plaintiff can assert any and and all claims against the

Defendant- do not have to be transactionaly related – applies to all claimants(cross claim) – this

is a procedural rule; once this rule is met make sure to look if there is subject matter jurisdiction.

B. Claim joinder by the Defendant

1. Counter claim- claim against an opposing party {do not confuse with cross claim} this is donewhen the defendant goes on the offensive and sues the Plaintiff rather than previously

discussed defensive measures such as affirmative defenses and denials.

P>D

P<D- counterclaim

There are two kinds of counterclaims:



a. Rule 13(a)- Compulsory counterclaim: A claim by the Defendant back against the Plaintiff

that arises from the same truncation or occurrence as the plaintiff’s claim. A compulsory

counterclaim must be asserted in the present case unless the defendant has already

brought suit on the matter or else Defendant has waived the claim and cannot bring the

claim in a separate action.{ only claim that must be used or else it is waived}

Is this claim supported by subject matter jurisdiction(supplemental)???

b. Rule 13(b)-Permissive counterclaim- A claim that does not arise out of the same transaction

or occurance as that of the claim brought by the Plaintiff and it does not have to be asserted

in the present case but you may assert it here (you can bring it in a separate action) –

procedural rule that allows for the bringing of the claim.

Is the Claim supported by subject matter Jurisdiction(supplemental)???

Hypo 1- Car crash between a citizen from Pennsylvania (Plaintiff) and citizen from Ohio

(Defendant) both are injured. The claim is for $100,000- this claim can be brought in federal

court because it invokes diversity of citizenship(both parties are from different states and

involves more than $75,000) The OHIO Defendant has a compulsory counterclaim against

Pennsylvania Plaintiff(arises from same transaction) for $80,000. Can this claim be joined in

federal court? Rule 13(a) provides a procedural rule for Ohio Defendant to assert this claim

because it involves same transaction and occurrence- not only may he assert the claim but

he must assert it or else he waives the claim. Additionally, there is subject matter

jurisdiction of this claim under diversity of citizenship- both parties are from different states

and the claim exceeds$ 75,000.

Hypo 2- Car crash between a citizen from Pennsylvania (Plaintiff) and citizen from Ohio

(Defendant) both are injured. The claim is for $100,000- this claim can be brought in federal

court because it invokes diversity of citizenship(both parties are from different states and

involves more than $75,000) The OHIO Defendant has a compulsory counterclaim against

Pennsylvania Plaintiff(arises from same transaction) for $60,000. Can this claim be joined in

federal court? Rule 13(a) provides a procedural rule for Ohio Defendant to assert this

counterclaim because it involves the same transaction and occurrence- not only may he

assert this claim but if he fails to do so he waives the claim. In this case there is no diversity

of citizenship, even though both parties are from different states the claim does not exceed

$75,000. Additionally, this claim does not involve a federal question- so there is no federal

subject matter jurisdiction (EVERY CLAIM MUST HAVE SUBJCT MATTER JURISDICTION).

There is, however, supplemental jurisdiction on this claim because 1367(a) grants

supplemental jurisdiction for claims arising out of the same transaction and occurrence

(gibbs test- common nucleus of operative fact) a compulsory counterclaim will always satisfy

this requirement because by its very nature it arises out of the same transaction as the claim

brought by the Plaintiff in the original suit. 1367(b) does not take supplemental jurisdiction

away even though this is a diversity of citizenship case, because this is a claim brought by a

defendant and 1367(b) only removes jurisdiction in cases involving plaintiff in diversity

cases.



2. Crossclaim- a claim against a co-party that must arise from the same transaction or occurrence

as the underlying dispute. Rule 13(G)- do not have to assert this claim(can bring in a separate

suit) but you may assert it here.

Hypo1- Three way car crash (everyone’s claim arises from the same transaction or occurrence)

there is no federal question and all the amounts exceed the required $75,000. Plaintiff South

Carolina sues Defendant 1 North Carolina and Defendant 2 North Carolina. There is diversity of

citizenship for the original claim because the plaintiff is from a different state as the two

defendants and the amount in controversy is over $75,000.

P(SC)>D1 (NC)-original claim

P (SC)>D2(NC)-original claim

D2 has been injured and wants to assert claims against P and D1. Against P, D2 has a compulsory

counterclaim because rule 13(a) gives procedural basis for a claim arising out of the same

transaction or occurrence (car accident) and there is diversity of citizenship because p is from SC

and D2 is from NC(different states) and the amount is for over $75,000 (even if the amount was

under $75,000 there would be supplemental jurisdiction and the claim could proceed)

P(SC)>D1(NC)-original claim

P(SC)>D2(NC)-original claim

P(SC)<D2(NC)-compulsory counterclaim

P(SC)> D1(NC)-original claim

^ - cross claim

P(SC)> D2(NC)- original claim

P(SC)< D2(NC)-compulsory counterclaim

D2’s Claim against D1 is a cross claim- D2 is not required to bring the claim in this case but may

under 13(g). There is no diversity of citizenship because both parties are from the same

state(SC). There is supplemental jurisdiction because 1367(a) grants supplemental jurisdiction

over every claim sharing the same operative nucleus of fact-same transaction or occurrence

(same car crash) and every cross claim must arise out of the same transaction or occurrence so

by definition every cross claim meets this factor. 1367(b) does not take away supplemental

jurisdiction in this case because 1367(b) can only remove jurisdiction by claims brought by

plaintiff but in this case the claim is brought by a Defendant.

C. Proper Parties

Look to see if there is a rule to join the parties then look to see if there is subject matter

jurisdiction.

1.Rule 20(a)Addresses the question of who MAY be joined by co-plaintiffs or Co-defendants in

a single case.

2 part test for joining co- Plaintiffs 20(a) and co –Defendants 20(a)(2)(must satisfy both parts

in order to be joined):

1) Do the Claims arise from the same transaction or occurrence?



2) Do the claims raise at least ONE common question?

Once you determine that there is a rule allowing for the joining of the parties by following the 2

part test you MUST determine whether there is subject matter jurisdiction.

D. Necessary and Indispensable Parties

At the outset of the case the Plaintiff decides who he wants to include in the case, but

sometimes there is an absentee party that the Defendant wants to join into the litigation.

1. Rule 19 tells us who MUST be joined in a pending case. A necessary party MUST be joined.

Who is necessary (needed for a just adjudication)?

Three Different tests that allows for joinder of the absentee- only have to meet one:

1) Rule 19(a)(1)(a) Without the absentee, can the court accord complete relief among

those who are already joined? If No then the absentee is necessary. {promotes

efficiency-usually met because usually if not joined then the absentee will just be sued

after in a separate case}

2) Rule 19(a)(1)(b)(1) The absentee’s interests might be harmed if she is not joined

{focuses on absentees interest}

3) Rule 19(a)(1)(b)(2) Does the absentee’s interests potentially subject the defendant to

the risk of inconsistent obligations {focuses on defendants interests}

Joint tortfeosors are not necessary parties so if plaintiff only sues one tortfeasor can’t

force the other tortfeasor into the litigation as a party.

Hypo- BOB holds 1,000 shares in price line. Rod says that he and bob agreed to purchase them

together and that he paid for half and therefore the shares should be in both their names. Rod sues

Priceline to cancel Bob’s shares and have them reissued in both their names.

P(Rod)>D(Priceline)

Bob-Absentee- Is he necessary? Should the court force him into the case? Yes Bob meets all three tests

even though you only need to meet one. Under 19(a)(1) if we do not join bob then the court cannot give

full relief because no matter who wins the case there will probably be furthered litigation on the same

matter. Under 19(a)(2)(1)- if bob is not joined his interests can be harmed- if Rod wins Bob will lose his

shares. Under 19(a)(2)(2) – if bob is not joined and Rod wins the court will order Priceline to reissue the

shares and then bob will sue and if bob wins then there is an inconsistency in the orders.

2. Is Joinder of the absentee feasible? Second step under Rule 19 of who must be joined.

a. Not Feasiblea) Personal Jurisdiction – not feasible if there is no personal jurisdiction

b) Subject matter jurisdiction – not feasible if it would destroy subject matter

jurisdiction.

b. Feasible-Join absentee in the case

3. If joinder of absentee is NOT FEASIBLE the court decides whether to 1) proceed without

the absentee or 2)dismiss the case



a. Rule 19(b) gives 4 factors on how to proceed if the joinder of the absentee is not

feasible:

1. How strong is the plaintiffs case

2. 3. whether in equity and good conscious the court can dismiss the case

4. Is there another forum in which the case can be brought?*****

If the court decides to dismiss then the absentee in called indispensable (basis for trying to get a case

dismissed under Rule 12(b)(7)-motion to dismiss for failure to join an indispensible party)

E. Impleader (also called “Third-Party Practice”) {do not confuse with interpleader} Rule 14

Joining someone new not an existing party. Allows defendant to join third party defendant

because the TPD is or may be liable to the defendant for all or part of the Plaintiff’s claim.

Claim for indemnity (whole) or contribution(part)

P>D-original parties

Non party owes indemnity or contribution- could be insurance company or tortfeasor.

TPD (brought in for indemnity or contribution)

^- Impleader

P >D- original parties

Rule 14(a) sentences 6&7 two other claims 1) plaintiff against TPD- may be asserted in pending case if

arises out of the same transaction or occurrence as the original claim. 2) the TPD can assert a claim

against the Plaintiff so long as the claim arises out of the same transaction occurrence of the

underlying claim.

1) 2)

TPD TPD

^ ^

P > D P > D

After you assess whether there is a procedural rule allowing for impleader you MUST

determine whether there is SUBJECT MATTER JURISDICTION over those claims.

Hypo 1- This case does not involve a federal question and all claims exceed $75,000. Plaintiff is a

citizen of NY and sues Defendant from California. Impleader claim is against defendant from CA



against TPD from NY. There is subject matter over the impleader claim by the defendant on the TPD,

because the amount in controversy is over $75,000 and there is diversity of citizenship between

Defendant and the TPD –even if there was no diversity of citizenship there would be supplemental

jurisdiction because it arose out of the same transaction or occurrence and it is a claim brought by a

defendant so 1367(b) would not have removed it. TPD’s(NY) claim against the Plaintiff(NY) would not

have diversity jurisdiction but will have supplemental jurisdiction because 1367(a) grants jurisdiction

over claim arising out of same transaction and occurrence and since TPD is brought in because of his

relation to the occurrence and 1367(b) does not kill supplemental jurisdiction because TPD is not a

plaintiff. The claim by the plaintiff(ny) against the TPD(TPD) does not have diversity of citizenship

because both are from NY or supplemental jurisdiction because 1367(b) removes jurisdiction of

Plaintiff in diversity cases enjoined under rule 14 and this is a case brought by plaintiff against TPD

joined by rule 14. If the original claim was a federal question then the claim brought by plaintiff

against TPD will be fine because 1367(b) only removes jurisdiction in diversity cases and not in cases

involving federal question.

F. Intervention- when an absentee wishes to join herself as either a plaintiff or defendant- the

court can decide to place her as plaintiff or defendant but originally it is the absentee’s choice as

to what side she joins .

There are two types of intervention but in each the application to intervene must be timely(no

exact day specified):

1) Rule 24(a)(2) – Intervention of Right – this is satisfied if you can show that the absentee’s

interest may be harmed if she is not joined and her interest is not adequately represented

now.(similar to test for necessary party but there it’s the defendant who wanted to join the

absentee and here the absentee wants to join themselves)2) Rule 24(b) (2) – Permissive Intervention- Absentee’s claim or defense has at least one question

in common with the pending case. Whether the absentee can join is in the courts discretion.

After you determine whether the absentee can intervene under a procedural rule you MUST

determine whether that claim invokes subject matter jurisdiction.

With intervention of right the court will grant supplemental jurisdiction under 1367(a) but most

likely will not when it comes to Permissive intervention. 1367(b) will only take supplemental

jurisdiction away in diversity case when the absentee intervenes as a plaintiff or defendant and

the plaintiffs claim cannot be granted jurisdiction.

G. Interpleader- involves a dispute over property with multiple possible claimants.

1. Somebody holding property (the stakeholder) can force all potential claimants into a single

case.

2. Two types of interpleader:

1) Rule interpleader Rule 22 – a Diversity of citizenship case – stakeholder must be diverse

from every claimant. Amount in controversy must exceed $75,000. Use regular venue



rules. Regular rules of service of process.( have to use if all claimants are from the same

state)

2) Statutory interpleader – you need one claimant diverse from on other claimant. You do

not need complete diversity. 1335, 1397, 2361. Amount in controversy must exceed

$500. Lay venue where any claimant resides. Get nationwide service of process- never

have personal jurisdiction ever as long as claimant is from US. (Don’t need minimal

contacts).

H. Class Action- when a representative sues on behalf of a group it is governed by Rule 23 (can

have a plaintiff or defendant class but usually it’s a plaintiff class)

1. Initial Requirements – must meet all 4 requirements

a. Rule 23(a)(1)- Too numerous for practicable joinder (no specified amount){group is too

geographically dispersed, might destroy diversity, too many that it would be

cumbersome

b. Rule 23(a)(2)- commonality- must have questions of fact or law that are common to

the group.

c. Rule 23(a)(3)Representative’s claims must be those typical of the class- want a

representative that feels the pain of the group because we want them to be an

affective representative

d. Rule 23(a)(4)representative will fairly and adequately represent the class- looks at the

client and lawyer.

The entire class will be bound by the decision but they are not parties to the suit. There is

only an issue of due process if the representative does not do an adequate job.

2. Must fit the case within one of three kinds of class actions Rule 23- only have to meet one:

1)

Rule 23(b)(1) –Prejudice Class Action- where class treatment is necessary to avoid harmto the class members or to the party opposing the class- concerned that if have separate

litigation there will be incompatible standards of conduct for the defendant(inconsistent

rulings- EG: shareholders suing for dividend disbursements- different shareholders may

be awarded different amounts or not win at all -Usually when there is limited funds

available gives everyone a chance to be awarded something.

2) Rule 23(b)(2)- Party opposing the class acted on grounds that are generally applicable to

the class, and that makes an injunction or declaratory judgment appropriate. - where

plaintiff is after an injunction.

3) Rule 23(b)(3)-Damages Class-

2 requirements that must be met:a) Must show that common questions predominate.- already know that you need

commonality but here the commonality has to be the most important part of the

suit.

b) The class action is the superior method for resolving this dispute.



EX: mass tort- buss goes off the mountain and 80 people are injured the common

question is whether the driver was negligent. This common question of negligence

predominates all other issues. And it is far more efficient to litigate together.

When a court agrees to hear a case as a class action it is called certifying the case as

a class action- “certified class action”

3. Notice to the Class

In a Rule 23(b)(3) Class action the Class representative pays(learned from eissen case) to

give individual notice to all members reasonably identifiable as stated by rule 23(b)(2). Must

tell Class-members that:

1) They may opt-out.

2) They will be bound if they do not opt-out

3) They may enter a separate appearance through counsel if they want

No notice is required in a B1 or B2 class action ONLY in a B3 class action

4. Every class member is bound by judgment except those who opt out of a 23(b)(3) class

action.

Richard D. Freer- Civil Procedure Disc 8 IX. Discovery

A. Required Disclosures

1. Rule 26(a) – Parties must produce 3 different times in the course of litigation even if they

are not asked to

a) Rule 26(a)(1) Initial Disclosure within 14 days of

i) Must identify people and documents with discovery plan conference

discoverable information that you may use to support your claims- you do not

have to disclose the information if you are only planning on using it for the

purpose of impeachment

ii) Plaintiff must give a computation of damages

iii) Defendant party must tell about insurance that she has for all or part of a claim-

even though it is not admissible in court

One can avoid initial disclosure only through 1) court order 2) by stipulation –

some cases are exempt from initial disclosure Rule 26(a)(1)(e)

b) Rule 26(a)(2) Experts

c) Rule 26(a)(3) Trial Evidence – must be filed with the court

a, b,c, must be served on the other side- this is not a formal service Rule 5(c) first class

mail the other side gets extra 3 days to respond.

B. Discovery Tools – All can be used to get information from a party

1. Deposition - Rule 30 & 31 Person gives sworn oral statements taken transcribed by a court

reporter. Questions can be written or oral but answers are always oral. Can depose a non

party but you must subpoena them or they do not have to appear.



Subpoena Duces Tecum- person being deposed has to appear and bring things with them

ex: Documents, pictures

You cannot depose more than 10 people without a court order unless both parties agreed to

it by stipulation.

A deposition is 1 day of 7 hours Maximum unless there is a court order or both parties agree

by stipulation to allow for longer.

2. Interrogatories - Rule 33 Questions in writing that are answered in writing- can only be sent

to parties and NOT to NON parties . Must be answered under oath within 30 days or 33 days

if sent by mail. No more than 25 interrogatories unless there is a court order or both parties

agree by stipulation.

3. Request to Produce – Rule 34 Ask to see something someone has Rule 34(c) can request

from a non party only with a subpoena

4. Physical or Mental Examination – Rule 35 Can only be done to a party or someone in the

custody or legal control of the party(does not include an employee of an employee- usually

refers to a parent child relationship)

Ex: you are injured by a bus and sue the bus company your cannot force the driver to get

examined even if you think the accident was caused by his faulty vision

Examination needs a court order. Must show the issue is in controversy and show good

cause- higher standard for examinations because we don’t want unnecessary burdens being

placed on either side.

5. Request for Admission – Rule 36 Only on parties – not on NON parties. It is a request y one

side to the other to admit the truth of a discoverable matter Ex: admit or deny that you ran

the red light Failure to deny CAN be treated as an admission.

Rule 26(g) Requires council to certify that discovery requests are not frivolous or from an

improper cause Rule 11 does not apply to discovery documents it is covered by Rule 26(g)

Parties sign the discovery answers under oath.

C. Scope of Discovery

1. Standard Rule 26(b)(1) Anything RELEVENT to any CLAIM or DEFENSE of any party(Dec.

2000). Before this rule you could discover anything relevant to the subject matter of the

case (anything relevant to the entire case) NOW- can only discover information relevant to

the claim or defense you can’t make new claims or defenses during discovery that were not

set forth in the pleading (this narrows the scope of discovery) The court has the authority

after being shown good cause to expand the scope to anything t the case.

2. BUT cant get everything that is relevant. There are certain things that are protected from

discovery.

a) Privileged Material – Confidential communications Ex: lawyer/Client, Doctor/Patient, Spouses,

Priest/Pennant



b) Work Product – Hickman v. Taylor (1947) Common law doctrine for Work Product Protection.

Rule 26(b)(3) – Preparation materials (work product) that is prepared in anticipation of

litigation; meaning they are prepared with an eye towards litigation. This does not include

monthly routine reports. The reason behind protecting work product is 1) avoids fee loading 2)

allows for greater employment (have to pay people to discover the protected information) Work

product I immune from discovery UNLESS you can prove 1) there is substantial need AND 2)

Substantial hardship- could not otherwise attain the information EX: Interview someone but

then the guy leaves the country some work product has absolute protection such as mental

impressions, conclusions, opinions, and legal theories.

D. Discovery Sanctions - Discovery is usually worked out among the parties but if there is a

problem the court will get involved.

1. Rules

a) Rule 37(c)(1) – Addresses what happens when a party fails to make one of the required

disclosures

b) Rule 37(c)(2) – Addresses what happens when a party fails to admit something that

should have been admitted under Rule 36

The party who made the mistake has to pay the other side the cost of the expenses the

other side incurred because of the omission

c) Rule 26(c) – The one from whom discovery is sought asks the court for a protective

order Ex: the request is over burdensome

2. Sanctions

a) Partial failure to comply – Party answered some requests but not all Ex: answered only

some questions-Minor Sanctions

b) Total failure to comply – Harsher Sanctions Ex: don’t appear at deposition When you

make a motion for sanctions you have to certify that you acted in good faith to confer

with the other side.

Sanctions available

Partial failure- Can make a motion to compel the answers under Rule 37(a)(2). You can also

recover attorney’s fees for cost of bringing the motion if you win the motion. This motion

makes them have to comply with the rest of the discovery demand. If you get the motion to

compel, but the other side violates the order than under 37(b)(2) you get big sanctions,

costs and attorneys fees for the motion, and the other side can be held in contempt of court

because they violated a court order.

Total failure to comply – Rule 37(d) - Don’t need a motion to compel can get automatic large

sanctions, and recover costs and attorney’s fees. You can’t put the other side in contempt

of court because there is no court order that was violated.

Rule 37(b)(2) - lists the kinds of sanctions available



Rule 37(d) i) striking the pleadings II) disallowing evidence – examples of sanctions

x. Pre-Trial Adjudication- getting rid of a case before it makes it to trial

A. Voluntary Dismissal- Rule 41(a) –Where the Plaintiff wants to dismiss the case.

3 Ways for a Plaintiff to voluntarily dismiss a case

1) Stipulation of the parties

2) Court Order

3) Plaintiff may dismiss without prejudice once by serving a notice of dismissal before the defendant

serves her answer or motion for summary judgment.

The second time you file a motion to dismiss it is with prejudice - case is over and cannot then go and

reassert the claim.

B. Involuntary Dismissal- Rule 41(b)

Three ways to achieve involuntary dismissal:

1) Failure to Prosecute- plaintiff is not moving to case along –no activity

2) Failure to abide by the Federal Rules

3) Failure to abide by a Court Order

Court can raise these dismissals on their own it does not have to be brought as a motion by the

defendant (link v. maulbauch railroad) but the court will usually warn the plaintiff first through an orderto show cause (OSC)- an order requiring the plaintiff to show good cause as to why the case should not

be dismissed. 12(b) defenses would also constitute grounds for an involuntary dismissal. Any 12(b)

dismissal will serve as a dismissal on the merits meaning that it is dismissed with prejudice and cannot

be brought again unless based on jurisdiction, venue, indispensable parties, or the court said so.

C. Default

1. Rule 55(a) – the Plaintiff must request the entry to default from the clerk of the court when the

defendant has not responded within 20 days after service of process.

Plaintiff cannot receive award from default dismissal unless they get a default judgment under Rule55(b)(1) – can get a default judgment from a clerk of the court(this is when there is a set amount) but if

u don’t meet the requirements to get one from the clerk you go to the judge underRule 55(b)(2)

A plaintiff cannot recover more or a different kind of relief other than what was asked for in the

complaint in a default motion –Rule 55(c)

D. Rule 12(b)(6) Motion- Demurrer - Motion to dismiss for failure to state a claim



The court does not look at evidence {unlike in summary judgment}. Instead, it looks only at the face of

the complaint. After reading the complaint the court asks whether if the plaintiff proved everything

stated in the complaint would the plaintiff then win the claim- does the court recognize as a matter of

law what the plaintiff said happened. Ex: plaintiff fails to meet all the elements of a claim

12(b)(6) motions are usually granted with leave to amend- gives the plaintiff another chance to state aclaim.- sometimes more than one chance is given because we like to judge cases on the merits and not

on technicalities.

E. Motion for Summary Judgment – Rule 56

1. Court can look at evidence

2. Standard for granting a Motion of Summary Judgment: Rule 56 (c)

1) Moving party must show that there is no genuine issue as to any material fact, and

2) that she is entitled to judgment as a matter of law.

Trial is only to decide issues of fact so if there is no dispute on a major fact the court can just rule as a

matter of law. Court looks at admissible evidence (items under penalty of perjury- depositions,

interrogatories) and admissions. Pleadings are not evidence except if they are verified pleadings-signed

under oath by both parties. Pleadings are relevant in summary judgment because they may contain an

admission- if in answer defendant did not deny a fact asserted in complaint.

Courts reserve all doubts in favor of the non moving party. Summary judgment is always discretionary –

even if you meet the standard the judge does not have to grant the motion. If inferences from the facts

are equally plausible then you must deny summary judgment under matsushita if the judge sees one

inference from the facts to be more plausible than the others then she may grant summary judgment.

The defendant can win on summary judgment by showing that the plaintiff has a whole in the evidence-

forces plaintiff to show evidence. Summary judgment Is rarely granted to the party who has the burden

of proof at trial(plaintiff). Tougher to get SJ in tort cases-credibility is usually issue for the jury to decide.

Judge can never weigh affidavits – decide issue of material fact. Ex: car crash both parties disagree as to

who ran the red light. Defendant moves for SJ providing affidavits from many respectable people. The

plaintiff needs to provide evidence because pleadings are not evidence or he loses. If plaintiff provides

even one affidavit form a druggie SJ cannot be granted because there is a question as to a material issue

of fact.

Can have partial summary judgment granted- knocks out only some of the issues- less issues to litigate-

but not all.

XI. Trial and Related Motions

Motions Related to the Trial



1. Motion for Judgment as a Matter of Law(JMOL){directed verdict} – Rule 50(a) – the judge steps

in and takes the decision away from the jury

You can move for this only after the other side has had its chance to present its case. The

defendant has two chances to raise this motion 1) after plaintiff presents its case 2) after

defendant presents its case. Plaintiff only has one chance to raise this motion and that is after

both sides have presented their cases. JMOL is same as summary judgment but it is just at a

different part- summary judgment looks at evidence before trial and JMOL looks at evidence

presented at trial. Standard for JMOL: Reasonable people could not disagree on the result- no

dispute on material fact

2. Renewed Motion for Judgment as a Matter of Law { judgment notwithstanding the verdict} –

Rule 50 (b) – the judge has let the case go to the jury, and the jury has returned a verdict for one

party. The court enters a judgment. The losing party brings this motion and if the motion is

granted, we take the judgment away from the person who won the verdict and we enter

judgment for the person who lost the verdict. Same standard as JMOL: the jury did not reach

the verdict that reasonable people would agree on

A Motion for Judgment as a Matter of law after all the evidence is shown is a prerequisite for a

Renewed Motion for Judgment as a Matter of Law. – only defendant can screw this up because

they have 2 chances to move for JMOL but can only go for RJMOL if moved after ALL the

evidence has been shown. Party making the motion must move within 10 days of the entered

verdict.

3. Motion for New Trial- Rule 59(a) – Judgment has been entered but there have been errors at

trial that require the case to be retried.

Reasons for new trial

Judge made an error

New evidence was discovered after the trial that could not have been found out before

Prejudicial misconduct of a party, juror, or attorney

Party making the motion must move within 10 days of the entered verdict.

Can have an entire new trial or a partial new trial- only try part of the case ex; just try

damages.

A new trial can also be conditional – 1) remtittur- jury awarded too high amount of damages

that shocks the conscious of the judge- so the judge tells the winning party that he can

either take a lesser amount or have a new trial 2)additur- jury gave an award too low so the

judge tells the losing party unless you agree to pay a higher amount I will grant a new trial –

violates 7th amendment so unconstitutional in FEDERAL COURT

XII. Appeal



A. Final Judgment Rule- court wraps up the whole case- in federal court there is only final

judgment - must appeal within 30 days of entering the final judgment.

You cannot go to the court of Appeals until the trial court enters a final judgment- decision

on the merits for the entire case has been decided. Make your objection on the record as

the issue happens but preserve your right for appeal until final judgment has been entered.

Cannot appeal judgment on summary judgment, judgment to compel, new trial

Grant or renew of final judgment is ok because it is a final judgment.

B. Interlocutory Review- some states allow for rulings as the issues arise

1. 1292(a) – certain interlocutory orders that are reviewable as a right

2. 1292(b) – Allows appeal of an interlocutory order if the trial judge certifies that it involves a

controlling issue of law and that there is a substantial ground for difference of opinion. The

court of Appeals must also agree to hear the interlocutory appeal.

3. Rule 23(f) – Court of Appeals has discretion to review an order either granting or denying

class action status.

4. Rule 54(b) – Involves cases with multiple claims or multiple parties. The trial court can

expressly direct final judgment as to one or more of these and can make an express finding

that there is no just reason for delaying appeal.

5. Collateral Order Rule- Gives the Court of Appeals discretion to take an interlocutory issue,

but three things must be true(cohen):

1) It must raise an important issue that is separable from the merits

2) The court order completely resolves that issue

3) The issue is affectively unreviewable if we wait until final judgment.

11th amendment – states immune from certain suits

6. Extraordinary Writ- An original proceeding brought in the appellate court asking for an

order compelling the trial judge to do something or to vacate an order.

C. Standard of Review

1. Question of law –Court of Appeals gives no deference to the trial court

2. Finding of Fact by a Judge- Court of Appeals can reverse only if it finds that the trail judge

was clearly erroneous.

3. Finding of Fact by the Jury- Entitled to enormous deference by the Court of Appeals.

Judgment is okay if the jury might reasonably have found this.

4. Discretionary Issues- Reviewed by the Court of Appeals under the s discretion standard. The

Court of Appeals will allow whatever the trial court did unless the trail court judge abused

her discretion.

XIII. Preclusion Doctrines

In a preclusion cases you will always have a first case that has a final judgment entered and a

second pending case, and the question is does the judgment from the first case preclude us.

The court will apply the preclusion rules of the state in which the first case was litigated.



A. Res Judicata/ Claim Preclusion – You get one case in which to vindicate your claim- can only sue

on a claim once so ask for all relief possible.

1. You must show that CASE 1 and CASE 2 were brought by the same claimant {usually plaintiff

but can be a defendant in a counterclaim} against the same defendant {not just the same

parties, but in the same configuration}

2. CASE 1 must have ended in a valid final judgment on the merits- only verdict in favor of the

plaintiff is seen as on the merits. But if plaintiff loses rule 41(b)- involuntary dismissal- but all

involuntary dismissals are seen as adjudication on the merits unless based on jurisdiction,

venue, indispensable parties, or the court said so. Semteck- the court dismissed the case

but the second court heard the case anyway because it was in a different court. On the

merits means can’t re-file in the original court.

3. CASE 1 and CASE 2 must involve the same claim. Majority – transactional – all claims arising

out of the same transaction – single wrongful act test- focus on wrongful act of the

defendant. Minority- look at the rights invaded- primary rights theory- ex: right to bodily

sanctity is different from your right to have your property protected.

Hypo1- Lucy and Ethel are in a car crash and CASE 1- Lucy sues Ethel for personal injuries

arising out of the collision. Valid final judgment is entered. CASE 2- Lucy sues Ethel for

property damage. Is Lucy’s claim in Case 2 precluded by Case 1? Step 1- the claim is brought

by the same claimant (LUCY) against the same defendant (Ethel) step 2- have final judgment

entered on the merits for case 1 step 3- according to the majority the claim will be

precluded because the personal injury and the property damage both arose out of the same

transactional occurrence (car crash) but according to the minority the claim would not be

precluded because personal injury and property damage invoke 2 different primary rights.

Merger- what you call Claim Preclusion when the claimant won case 1

BAR- - what you call claim preclusion when the claimant lost case 1

Hypo 2- Lucy and Ethel are in a car crash and CASE 1- Lucy sues Ethel for personal injuries

arising out of the collision. Valid final judgment is entered. CASE 2- Ethel verses Lucy for

injuries arising out of the same car crash. Is Ethel’s claim precluded? NO, because Ethel has

not yet had her day in court- CASE 2 involves a different claimant and defendant than that of

Case 1.

While the claim is not precluded it may fall under a compulsory counterclaim that had to be

brought by Ethel in case one or else her right would be waived and the court will dismiss the

claim under compulsory counterclaim rule and not under claim preclusion.

B. Collateral Estoppel/ Issue Preclusions

There was an issue litigated and decided in CASE 1 and the effect of issue preclusion is to say

that that issue has already been established and cannot therefore be re-litigated in CASE 2.



1. Show that CASE 1 ended in a valid final judgment on the merits.

2. Show that the same issue was actually litigated and determined in CASE 1. – default

judgment does not give issue preclusion.

3. Show that the issue on which we want collateral estoppels was essential to the judgment in

CASE 1- without that finding we would not have the same judgment.

EX: Lucy sues Ethel for car crash in a contributory negligence state. Finding of Ethel’s

negligence is non essential but negligence of Lucy is.

4. Against whom is collateral estoppel being used? You can only use collateral estoppel against

someone who was a party to CASE 1. (or in privity with a party-representative, successor) –

due process requirement.

5. By whom is collateral being asserted? Mutuality but is not required by due process different

jurisdictions can rule differently. Mutuality- can only be used by someone who was a party

in CASE 1. Trend recently is to reject Mutuality to allow for non mutual issue preclusion- the

party using issue preclusion is not a party in case 1. This can come up in a few ways: 1) non

mutual defensive issue preclusion- person using issue preclusion is not a party in case 1 and

she is the defendant in case 2. 2) Barney is driving aunt B’s car and has a collision with Andy.

Aunt B is vicarious liable for Barney, Case 1 Andy v. barney- barney wins. Final judgment

entered. CASE2- Andy sues aunt b- no claim preclusion because different claimant and

defendant. Can aunt be get issue preclusion on Andy’s negligence? As longas Andy had a

full and fair opportunity to litigate in case 1 she can in most jurisdictions today because Aunt

B is the defendant in case 2. 3) non mutual offensive issue prelucion – person seeking to

use collateral estoppel was not a party to CASE 1 and is the plaintiff in case 2- Barney is

driving aunt B’s car and has a collision with Andy. Aunt B is vicarious liable for Barney, Case 1

Andy v. barney- barney wins. Final judgment entered. CASE2- brought by aunt b against

Andy- first 4 elements met- majority view will most likely not permit the issue preclusion

but a minority will allow it if you can show the court that it would be fair under the

circumstances if certain factors are met. 1) defendant had a full and fair opportunity to

litigate in case 1 2) the defendant could have foreseen multiple suits 3) person trying to use

issue preclusion could not have easily have joined in case 1. 4) no inconsistent judgments

Hypo- Airline sued for negligence by P1 and is found not negligent. P2 brings suit and airline

wants to bring issue preclusion but cant because does not meet step 4- cant use issue

preclusion against someone who was not a party in case 1.

Hypo- CASE 1- Airline sued for negligence by P1 and is found guilty of negligence. Case 2-P2

sues the airline can p2 use collateral estopell? 1-3 clearly met. 4 is met because it is being

used against the airline that was a party in case 1. Step 5- issue preclusion is being used by a

non party so it is non mutual by a plaintiff –majority would not but modern trend using the

fairness factors would.