Civil Procedure Outline 10/3/12 4:09 PM

I. TWO KINDS OF JURISDICTION (Must have both (a) & (b) to decide case)

a. SUBJECT MATTER JURISDICTION: Refers to court’s power to decide the kind of case before it (diversity and federal question)

i. 28 USC § 1332: An action must between citizens of different states, or between citizens of a state and in which foreign states or citizens or subjects thereof are additional parties.

ii. COMPLETE DIVERSITY: every plaintiff must be of diverse citizenship from every defendant: (no P can be domiciled in the same state as any D)

b. PERSONAL JURISDICTION: Refers to whether the court has jurisdiction to decide a case between the particular parties or concerning the property before it. This also has TWO requirements

i. Substantive due process: Court must have power to act, either upon given property, or on a given person so as to subject her to personal liability. Constitution’s 14th Amendment Due Process Clause imposes this requirement of power to act, as a matter of “substantive due

process”ii. Procedural due process: Court must have given the defendant adequate notice of the

action against him, and an opportunity to be heard. c. INDIVIDUAL

i. An individual is a citizen of a state ONLY if he or she is both: 1. Citizen of US/(born or naturalized) or an alien admitted for permanent residence;

AND domiciled in that statea. Domicile: 1) Residence within that state, and 2) Intends to remain in that

state indefinitely ii. Individual remains a citizen in the state of his or her former domicile until he acquires a new

domicile1. Citizenship is determined at the time the suit is filed2. American citizenship living abroad: has no domicile w/in the US and cannot sue or

be sued in federal court on diversity jxiii. Mas v. Perry : last domicile will remain your domicile until you acquire a new one for the

purpose of citizenshipd. CORPORATION

i. A corporation is a citizen of both1. The state in which it is incorporated, AND2. The state in which it has its principal place of business

a. “Nerve center”: corporate HQ: “locus of corporate decision-making authority” OR

b. “Muscle test”: the state where company has most activitye. JURISDICTIONAL AMOUNT: Amount in controversy must exceed $75,000

i. Single plaintiff against single defendant can aggregate unrelated claimsii. Multiple plaintiffs or multiple defendants can only aggregate claims if there is an undivided

interest-propiii. Claims cannot be aggregated by separate plaintiffs

f. FEDERAL QUESTION

28 USC §1331: District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

i. Justice Holmes Test: “A suit arising under the federal law that creates the cause of action.” fii. “Well-Pleaded” complaint rule – Federal question jurisdiction could not be predicated on

a plaintiff’s anticipation that the defendant would raise a federal statue as a defense. Such jurisdiction can only arise from a complaint by the plaintiff that the defendant has directly violated some provision of the Constitution, laws, or treaties of the United States. Louisville

& Nashville Railroad v. Mottley

g. SUPPLEMENTAL JURISDICTION: 28 USC §1367: Discretionary: If there is a federal SMJ over one claim there is supplemental jurisdiction over all other claims which are so related that they form one “case or controversy”

i. Gibbs Test – 1367(a): If a single P has a substantial federal claim and an associated state claim that arises from a common nucleus of operative facts” the two claims CAN be joined and tried in federal court. United Mine Workers vs. Gibbs.

ii. Pendant party jurisdiction: 1367(a) expressly authorizes supplemental jurisdiction over claims involving the joiner of additional parties to a federal question claim or a diversity claim, unless such claims are excluded under subsection (b)

1. 1367(b): does not apply if parties meet jurisdiction requirements individually2. 1367(b): does not allow supplemental jurisdiction where SMJ is solely based on

diversity where claims joined under: Only qualify if you independently satisfy diversity: different states, amount in controversy)

3. 1367(c): gives district court discretion to decline to exercise supplemental jurisdiction if one of four criteria are met:

a. Claim raises novel or complex issue of state lawb. State-law claim substantially predominates over claim over which there is

federal jurisdiction

c. Claim over which there is federal jurisdiction dismissed (esp. if dismissed before trial)

d. Other exceptional circumstances raise a compelling reason for declining jxh. REMOVAL: 28 USC §1441(a): Defendant can only remove an action that could have originally been

brought by plaintiff in the federal courtsi. Only defendants may remove: All defendants must join in removalii. If SMJ solely based on diversity: no removal if any defendants reside in state where suit is

broughtiii. If SMJ solely on federal question: D(s) may removeiv. If there is a state-law claim, which lack an independent basis for jurisdiction, it may be

removed if the state-law claims meet supplemental jx test (28 USC §1367)v. Procedure for removal = 28 USC §1446

1. Defendant must file notice of removal (containing short and plain statement of grounds for removal and signed under Rule 11). Send copies to the other parties AND the state court

2. Removal must be done within 30 days of complaint or amended complaint which is removable

3. Removal on the grounds of diversity is not allowed for more than one year from commencement of the action

vi. After case removed, federal court can REMAND1. If federal court determines that removal was improper b/c of lack of SMJ2. Any or all supplemental claims (even if properly removed) if condiciont of §1367(c)

is satisfiedvii. Caterpillar: Diversity at the time judgment is entered, rather than at the time the case is

removed from state to federal court, is the appropriate time at which to examine whether complete diversity exists permitting federal court jurisdiction

i. TWO TYPES OF COURT APPEARANCES

i. General = appears in court and defends himself. Manifests consent to court’s jurisdictionii. Special = goes to court for the sole purpose of contesting its jurisdiction over him. Cannot

argue anything except to contest jurisdiction, otherwise becomes general appearance. the federal system no longer uses this under Rule 12, and many state courts have followed suit.

iii. Limited Appearance = can appear and defend in an in rem case without risking that the court would assert in personam jurisdiction because you are there. This is important because an in rem judgment is limited to the value of the property, and in personam one is not.

II. TERRITORIAL JURISDICTION

a. HISTORICAL FORMULATION: the relevance of state boundariesi. Pennoyer v. Neff (1877)

1. Pennoyer states, “The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established.” Physical presence and service of process. A court must attach the property at the beginning of the proceedings in order to exercise quasi in rem jurisdiction.

a. Grace v MacArthur (flying over a state is physical presence)b. If not present, service of process must be established before judgment is

rendered (in rem would have worked)2. Judgments based on improper territorial jurisdiction/SOP are invalid. This would be

violation of due process clause3. Fed.R.Civ.P 4(f) requires that all service be accomplished within the “territorial

limits” of a stateii. Harris v. Balk (1905: Quasi-in-rem)

1. The presence of property without more will satisfy basis for jurisdiction quasi in

rem

a. Quasi in rem goes after person through property (judgment limited to property value)

b. In rem just goes after property2. Court stated that “the obligation of the debtor to pay his debt clings to and

accompanies him wherever he goes” (intangible property)a. Notice to creditor is required.

Three Types of Personal Jurisdiction In rem – claims taking directly against a thing, gives court power to adjudicate a claim made

about a piece of property or about a status. Presence of property + publication. Quasi in rem - jurisdiction provides a mechanism for suing nonresident Ds who might not be

subject to in personam jurisdiction, but liability is limited to the value of the property attachedo Property is attached at the outset of the suit to get power over the D, but the property is

not related to the suit. Way of forcing the defendant to come into court. This was the situation in Pennoyer.

This is overruled in Shaffer and all personal jurisdiction must meet “MC” In personam – Jx over the defendant’s person gives the court power to issue a judgment

against her personally. Thus all of the person’s assets may be seized to satisfy the judgment

IN DETERMINING PJ, FIRST LOOK AT C/A TO SEE IF THE SUIT ARISES OUT OF D’S

CONTACTS IN THE STATEo YES then specific jxo NO see if D subject to general jurisdiction-continuous and systematic

b. 20th CENTURY SYNTHESIS – “MINIMUM CONTACTS DEFINED”: The minimal connection with the forum state necessary to justify general jurisdiction

i. Does the defendant have any contacts with the forum state?ii. Are the contacts purposeful? – Burger King Corp. v. Rudzewicz

1. Foreseeability of litigation? – World-Wide Volkswagen2. “Stream of Commerce” – Asahi Metal Industry 3. “Purposeful Availment” – Hansen v. Deckla

iii. Are the contacts continuous, systematic and substantial enough to justify general jx?1. Direction of Contact? – McGee

iv. If there is no general jx, are the defendant’s purposeful contacts with the forum sufficiently related to the litigation or do they constitute MC conferring the power to exercise specific jx?

v. Is the exercise of jurisdiction reasonable? – Burger King v. Rudzewicz1. Burden on nonresident D: inconvenience of forum (travel + cost, location of wit)2. Forum state’s interest in adjudicating dispute (if injury occurred in state, state’s

interest in enforcing its own laws)3. Ps interest in obtaining convenient and effective relief4. Interstate judicial system’s interest in obtaining the most efficient resolution of

controversies5. Shared interest of several states in furthering substantive social policies.

vi. International Shoe Co. v. Washington (1945)1. Test: Due process requires only that in order to subject a defendant to a judgment

in personam, if not present, he have certain “minimum contacts” with it such that the maintenance of the suit does not offend ‘traditional notions of fair

play and justice’. a. Test of “fair play” may include an estimate of the inconveniences which

would result to the corporation from a trial away from its home or principal place of business

2. Activity must be continuous and systematic (intended/purposeful)a. “Essentially at home” (General jurisdiction)b. Relatedness to claim of contact. (Specific jurisdiction)

i. McGee v. International Life Insurance (1957)

1. It is sufficient for purposes of due process that the suit was based on a contract, which had a substantial connection

thru deliberate maintenance of contract on a regular basis. Direction of contact.

2. Court articulated relative position of the parties. One contact is sufficient for CA’s in personam jx, if suit arises from the contact.

ii. Cornelison v. Chaney 1. Transporting goods between CA and Nebraska and is

injured in NV with CA resident. 2. CA Supreme Court extended specific jurisdiction to forum-

related activities arguing that had it not been for business in CA, then no accident.

vii. World-Wide Volkswagen Corp. v. Woodson (1980)1. Qualified “Minimum Contacts” (Stream of Commerce)

a. Isolated incidents are insufficient to show “MC”b. Foreseeability alone is not sufficient. Conduct must be purposeful enough

that defendant could reasonably anticipate being hailed into court. Need to consider fairness. Must have purposefully availed themselves of the benefits and privileges of the forum state’s law.

c. DEFENDANTS DID NOT PURPOSEFULLY DIRECT THEMSELVES TO THE FORUM STATE

viii. Helicopteros Nacionales v. Hall (1984)1. Qualified “Minimum Contacts” (Not enough “Contacts”)

a. Court held purchases, even at regular intervals, are not enough to warrant general jurisdiction

b. More rigorous “systematic and continuous activities” standard for claims not arising out of the defendant’s in state activities.

i. Wrongful death claims did not “arise out of” the defendant’s in-Texas activities

2. Forum Relatedness: Plaintiffs could have argued for specific jurisdiction over absent nonresident (due to minimum contacts) even if claim does not arise in forum, but related to activities in the forum

c. REFORMULATION OF MINIMUM CONTACTS?i. Burger King Corp v. Rudzewicz (1985) – Purposeful Availment

1. Purposeful availment in itself (such as the existence of a contract) does not automatically grant jurisdiction, it still must meet “notions of fair play and substantial justice”. Once “minimum contacts” have been established, courts may evaluate certain factors:

a. Burden on defendantb. Forum state’s interest in adjudicatingc. P’s interest in convenient and effective reliefd. Interstate judicial system’s interest in efficient resolutione. Shared interests of states in furthering substantive social policies

i. This can be shown by considering factors such as the parties’ prior negotiations, future consequences, the terms of the contract, and the course of dealing

ii. Question extracted is whether the franchisee should “reasonably

anticipate out-of-state litigation”1. Court also held that D was not unfairly surprised by

being required to defend in Florida. 2. Federal court in FL uses RULE 4(k)(1)(a) – federal long

arm statute to assert its jx over D2. Hanson v. Deckla (1958) – Purposeful Availment

a. “Minimum Contacts must have a basis in ‘some act by which defendant purposefully avails itself of the privilege of conducting activities within the forum state. The bank did not have any business in Florida and only continued business with Ms. Denckla after she moved there. Unilateral

activity of moving to FL does not satisfy the requirements of “contact”ii. Asahi Metal Industry Co. v. Superior Court (1985) – “Stream of Commerce”

1. Develops “purposeful direction” test for stream of commerce cases – a variation of purposeful availment

a. Foreseeability of product entering forum + additional conduct may indicate an intent or purpose to serve the market in the forum state.

i. Calder v. Jones (Effects Test/National Magazine Case) Defendant must have:

1. Committed an intentional act which was2. Expressly aimed at the forum state, and3. Caused harm, brunt of which is suffered and which D

knows is likely to be suffered in the forum state

b. O’Conner’s Test for purposeful direction/availment includes advertising in forum, customer service in forum, designing the product for market in CA, marketing through distribution agreement with sales agent in forum state.

2. Even if “minimum contacts” established, must still consider “traditional notions of fair play and substantial justice”. – It is unreasonable to hold a D accountable where the fairness test of Burger King is not met

a. Burden on the defendant (Very severe in this case)b. Interests of the forum state (not a CA Defendant)c. Plaintiff’s interest in obtaining reliefd. Interstate judicial system’s interest in obtaining the most efficient

resolution of the controversiese. Shared interest of the several States in furthering fundamental substantive

social policies (World-Wide)iii. DINSTINCTION BETWEEN PURPOSEFUL AVAILMENT AND PURPOSEFUL DIRECTION

1. “Purposeful availment” emphasizes the benefits a would-be defendant has obtained from its business activities conducted within the forum state, often involving contracts

2. “Purposeful direction” emphasizes defendant’s activities outside the forum state that have consequences inside the forum state

d. LONG-ARM STATUTES: Permits the court of a state to obtain jx over persons not physically

present within the state at the time of service provided there are “minimum contacts”.i. Bensusan Restaurant Corporation v. King (1997) – State Long Arm

1. New York Long Arm statute in this case proscribes jurisdiction to tortious acts by non-domiciliary

a. If the exercise of jx is appropriate under that statute, the court then must decide whether such exercise comports with requisites of due process

2. King does not purposefully avail himself or directed itself in any manner to New York

a. The Zippo Formulation – Internet Jurisdiction

i. Set forth a general test: Likelihood of personal jx is directly proportionate to the nature and quality of commercial activity

ii. This is the “sliding scale” test. Idea of passive websites that simply post information and interactive websites.

iii. Other end of the scale is websites that have been established for the primary reason of conducting business transactions with residents of other jurisdictions like Eddie Bauer.

ii. Omni Capital International v. Rudolf Wolff & Co. (1987) – Fed. Long Arm1. Before a federal court may exercise personal jurisdiction over a defendant, the

procedural requirement of service of summons must be satisfied. a. In this case, court rejected the suggestion that they create a common-law

rule authorizing SOP2. Congress enacts Rule 4(k)(2) – Omni Provision

a. Allows district court to assert PJ over a foreign defendant who has MC with the U.S. as a whole, but not any one state

b. Aggregates contacts with U.S. as a whole to ground jurisdictione. Presence

i. Shaffer v. Heitner (Property)1. Presence of property alone does not support jurisdiction2. All assertions of state-court quasi in rem jx must meet the MC standard of

International Shoe

a. If a direct assertion of personal jx is invalid than so will QIR and IRb. This case overrules Balk

i. Quick Facts: P files a shareholders derivative suit in DE court against D DE corp with principal place of business in AZ.

ii. Court seized stock to assert QIRii. Burnham v. Superior Court of California (Jx based on presence) – Transient Jx

1. Rule: Jx may be asserted over an individual who is present in the forum, even if he has no MC with the forum

2. International Shoe should only apply to absent Ds. Presence satisfies the “traditional notions of fair play and substantial justice”

a. Facts: Divorced couple, mom moves to CA with kids, dad in NJb. Mom filed for divorce and sues for child support in CA and tagged dad with

service while he was visiting3. Brennan concurrence

a. Reasoning for allowing jx is that the D purposefully availed himself upon the forum. He consented.

i. Must keep in mind that even if a court has found jx you can still file forum non conveniens. This is a motion stating that there is a more convenience forum

ii. Fraudulently induced presence will also not be upheld. Think of professor’s hypo of told your mother is dying and you board the next flight and are served upon landing. Henkel Corp v. Degremont

f. Noticei. Mullane v. Central Hanover Bank & Trust

1. In addition to requirement that the D have MC with the forum, due process also requires that a reasonable method be used to notify the defendant of a

pending lawsuit.2. “Due Process requires that notice be “reasonably calculated” to apprise

interested parties of the pendency of the action and afford them an opportunity to present their objections”

a. Notice need not reach all parties, just requires the best efforts to reach as many parties as possible.

b. However, every beneficiary had to be notified by the best practical

means available. i. Further, if P knows that notice was not received, he may not proceed

in the face of such knowledge if practicable alternatives still exist. 3. Fact Reminder: NY statute that allowed banks to set up common trusts that

pooled smaller trusts. Audit performed. Beneficiaries given notice through publication even though their addresses were known

a. Due Process notice decisions are fact dependenti. In Greene v. Lindsey, Justice O’Conner held that notice by posting on

the tenants door was not the best practical means because in the projects, risk of knocking it down is too great.

ii. FRCP 12(b)(5) – defense for insufficient SOPii. Jones v. Flowers

1. Issue arose whether Due Process requires the government to take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered

2. Court has held before that the “notice required will vary with circumstances

and conditions” Walker v. City of Hutchingsona. State in this case should have take additional reasonable steps to notify

Jones, if practical to do so. iii. Service of Process

1. Rule 4(c)(1) – A summons (command to appear in court) and a copy of the complaint must be included.

2. Rule 4(c)(2) – SOP can be made by any nonparty over 183. Rule 4(e)(2)(a) – Personal delivery

4. Rule 4(e)(2)(b) – Leaving a copy of each at the individual’s dwelling or usual place

of abode (common sense used here)5. Rule 4(e)(2)(c) – can deliver a copy to authorized agent6. Geographical scope

a. SOP in federal district court is the same as that in the state courts except:i. Foreign defendants: If there are sufficient contacts with the United

States as a whole. Rule 4(k)(2) – Federal Long Arm

ii. Federal statutes: Some federal statues provide for nationwide jurisdiction in suits brought under them

iii. “Bulge jurisdiction”: Third party defendants impleaded into an existing federal suit under Rule 14 may be served and brought within the jurisdiction of the District Court, provided that the party can be served within 100 miles of the courthouse. Rule 4(k)(1)(b)

7. Time of commencing a suit a. Time does not begin until action has been filed and service of process has

been completed

b. Person must be served within 2 year period (Statute of Limitations)g. Consent

i. Even though court may not have served defendant with process, it is possible that the defendant may have acquiesced with jurisdiction (appearance or express consent)

1. Example: Plaintiff sues D and then D answersa. An answer is a responsive pleading and regardless of being properly

served or not, by answering, jurisdiction has been waived

2. FRCP 12(b)(2):a. Must set forth any defense or objection to the complaint in your pleadingb. Before you answer, you may raise objection to jurisdiction

i. Rule 12(h)(1): if any of these defenses is not raised by motion or included in the answer, then they are waived.

ii. An Answer under laws of the state, constitutes a general

appearance

ii. Carnival Cruise Lines, Inc. v. Shute (Consent by contract)1. Issue: Did Ps consent to jx by a forum-selection clause in an adhesion contract?

a. A forum-selection clause in a form ticket contract will be reasonable and fair as long as it does not limit all liability of the carrier or avoid the right of any claimant to a trial by a court of competent jurisdicition.

b. It was reasonable for Carnival to litigate in FL because it was its principal place of business, passengers will save money on their tickets, and it was not the company’s intent to defraud.

III. CHALLENGING PERSONAL JURISDICTION

a. Rule 12 of the FRCPb. MUST challenge personal jx at the outset, SMJ can always be raisedc. Strategies

i. Special Appearances – “I’m not here”: D may appear in the original action at the beginning of the suit and object to the court’s exercise of jx over him.

ii. Limited Appearances - Protecting property rights quasi in rem where the damages of the claim cannot exceed the value of the property

iii. Collateral Attack – Do not show up and attack jx when judgment tries to be enforced using Full Faith and Credit clause

d. Waiver – Failure to do any of the above means a waiver of challenging jurisdictionIV. VENUE (proper district in which to bring the action)

a. FRCP §1391: Basis for Federal Venue – Hooks up with FCRP §1404(a) that authorizes transfer from one district court to another, so long as you’re doing it in the interest of justice in a place that could have been originally filed under the venue laws of the US.

b. If basis for federal matter jx is 1331, then you look at the venue statute 1391(b). Always think of these in pairs. If basis is 1332, then look at 1391(a)

i. Diversity

1. §1391(a)(1): Applies to all civil actions brought in district courts of the US2. §1391(b)(1): Venue is proper in any district where any defendants reside, as long

as they reside in the same state3. §1391(b)(2): Venue is proper where a substantial part of the events or omissions

giving rise to the claim occurred4. §1391(b)(3): If there is no district in which an action may otherwise be brought as

provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

ii. Transfer and Forum Non-Conveniens – An appropriate forum, even though competent under the law, may divest itself of jurisdiction if for the convenience of the litigants and witnesses it appears that the action should proceed in another forum in which the action might ordinarily have been brought.

1. Three types of transfera. §1404: Transfer of venue for convenience (apply law of transferor court. If

other forum is foreign country/different state, then action dismissed)

i. Van Duesen v. Barrack – Court held that when a case is transferred from a state court to a federal court in another, the choice of law should be the one of which it was originally filed.

ii. Ferens v. John Deere – A transferee forum must apply the law of the transferor court, regardless of which party initiates the transfer

b. §1406: Transfer for improper venue (apply law of transferee court)c. Forum Non-Conveniens – Provides for dismissal of the action when

venue in inconvenient. Mainly used in state courts where there is no right to transfer a case from one state to another

V. ERIE DOCTRINE (federal courts must follow state law; except when a valid federal statute or

rule applies, or in certain areas of special federal prerogative)

a. Three Categories of Erie Issues (make sure that federal law conflicts with state law)i. No Federal Positive Law: In these cases, the Rules of Decision Act applies. Court decides

whether to ignore state law and instead decide the issue on the judge’s own perception. 1. Cases in this category are resolved by determining whether ignoring state law and

applying contrary federal rule would be likely to cause forum shopping.2. If forum shopping is likely, state law must be applied

ii. Federal Rules: Erie encompasses those that involve a FRCP or other federal rule promulgated under the Rules Enabling Act

1. Congressional grant of authority to the SCOTUS to prescribe the rules of practice and procedure for cases in the federal courts. Prohibits such rules from abridging, enlarging, or modifying any substantive federal rights. §2072

2. If the FRCP is procedural and does not unduly abridge, enlarge, or modify the substantive right, it applies in lieu of state law.

iii. Federal Statute: Because Erie is not a limit on congress; a federal statute will always be applied, provided it really governs the situation at hand.

b. ERIE DECISIONi. Rules of Decision Act: RODA provided that “the laws of the several states, except where

the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall always take precedence, where relevant, over all state provisions. 28

U.S.C. §1652

ii. A federal court in diversity is required to apply the substantive law of the state

in which it sits and may apply federal procedural law.

iii. Eliminates forum shopping, disparity between federal and state rulings, and discrimination against residents by nonresidents through inequitable administration of the law.

1. Twin aims of ERIE are equitable administration of the law, and to avoid forum shopping.

iv. Is there a federal law on point (statute, FRCP)? Then apply Fed law if it’s valid1. FRCP is generally valid if arguably procedural2. Hana v. Plumer – FRCP allows for substituted service of process but the forum

state’s law doesn’t, the court will apply the FRCP b/c it’s on point and valida. First decide if using the state law would be outcome determinative in light

of the twin aims of Erie, which are avoidance of forum shopping and avoidance of inequitable administration of the law.

b. If yes, then lean toward using state law. But first, check to see if there are overwhelming federal interests in using allowing the federal court to use its own rule as suggested by Byrd.

c. If no, then lean toward letting the federal court use its own rule. But first, check to see if there is overwhelming state interest in using state law under the Byrd test.

d. Possible ways to see if there are overwhelming state or federal interests are asking if the state would mind if the federal rule applied, and seeing if the state law is only trying to regulate behavior inside the courtroom (if yes, then you can use the federal rule)

v. No Fed law on point? (Determine if the issue is substantive or procedural)1. Substantive: Fed court must follow state law

a. Guaranty Trust Co. v. York – Statute of Limitations and tolling rules have been found to be substantive for Erie purposes (follow state law)

b. Elements of a claim or defense are always substantivec. Klaxon v. Stentor Electrion – Choice of law rules are always substantive

2. Procedural: Federal court may apply federal lawa. Sibbach v. Wilson – FRCP may always be applied, even if it affects

substantive rights, because it is an issue of procedural lawvi. TESTS to determine Substantive/Procedural

1. Outcome Determination: Guaranty Trusta. An issue is substantive only if it substantially affects the outcome of the

caseb. Forum shopping should not be encouraged to effect the outcome of the

case2. Balance of Interests: Byrd v. Blue Ridge

a. The court weighs whether the state or federal judicial system has the greater interest in having its rule applied

3. Forum shopping deterrence (Twin Aims of Erie) Hanna v. Plummera. The federal judge should follow state law on the issue if failing to do so

would cause litigants to flock to federal courtb. Forum shopping considerations trump all other interests on point

vii. Statute is both substantive and procedural?1. Gasperini v. Center for Humanities, Inc. – federal trial court in diversity applied NY

“excessive damages” standard for new trial rather then federal “shock the conscience” standard

2. Apply the substantive part of the statute but apply federal procedureviii. Interpreting state law

1. If there is no state court decision and it sits before a federal court in diversity, the federal court may consider the law of other jx in reaching the decision.

VI. Preclusiona. General info

i. Due process – a person is guaranteed their day in court1. Once a judgment is rendered, the judgment defines the right once held2. Incorrect judgments are final as well

ii. Direct attack on judgment – Appealiii. Collateral attack on judgment – Re-filing the claim

b. Res Judicata (Claim Preclusion)i. Def: Once a final judgment on the merits has been rendered on a particular cause of

action, the claimant is barred by res judicata from asserting the same cause of action in a later lawsuit.

ii. Merger/Bar1. Merger: claimant wins the first lawsuit; claim mergers into the judgment2. Bar: claimant loses the lawsuit, D wins; claimant is barred by the adverse

judgment3. Effect of these two? Claimant can’t sue

iii. To be precluded under Res Judicata, you must show1. The parties in the prior suit and the current suit must be the same2. Earlier judgment is valid, final judgment on the merits

a. Valid – judgment is valid as long as it isn’t void (lack of smj)b. Final judgment – final for purposes of taking an appeal

i. Exception: Even if bringing another suit compromises several of the values of res judicata, it must sometimes step aside in deference to other values. Where a judgment has a prospective application [governs the ongoing future conduct of the parties], the court will retain authority to modify its orders in light of the changed conditions. The power to modify judgments in light of “substantial change in circumstances” would make it unjust to continue their prior judgment in effect

VII. PLEADINGSa. Two types of pleading

i. Notice: A short and plain statement of jx and claim for which pleader is entitled to relief.1. A complaint must say enough to tell the defendant why he is being sued even

though it need not describe every detail. 2. Must give the defendant sufficient notice of the case against him to enable him to

prepare a defenseii. Code: A statement of the facts constituting the cause of action, in ordinary and concise

language (CA, NY – though most state courts adopt a liberal approach for pleading), pleading must state a claim under the code. (STATE)

1. When only notice pleading is required, reputedly, practicing lawyers often complain that they do not become fully aware of the issue in many cases until after prolonged discovery.

b. Purpose of pleadingi. Give notice of the nature of the claimii. State the relevant factsiii. Narrow the issues to be addressed at later states of the litigation processiv. Serve as guides for later discovery and trialv. Expose substantial claimsvi. Separate disputes over the facts from disputes over the law

c. Burdensi. Pleading

1. P has the initial burden of pleading (complaint)2. Once P fulfills his proof of burden, it shifts to D (answer)3. D may motion for demurrer of FRCP 12(b)(6)4. If P sustains that, then the case moves on to discovery

ii. Persuasion

1. In civil cases, P must prove their allegations by a preponderance of the evidence2. In some special cases, an intermediate standard is applied – clear and convincing

evidence (like patents)d. Motions – Rule 7(b)(1): A request for a court order must be made by motion. The motion must:

(A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought.

e. CLAIM FOR RELIEF - Rule 8(a): (1) A short and plain statement of the grounds for the court’s jurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

i. Defenses; Admissions and Denials - Rule(b)(1): In responding to a pleading, a party must (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party.

ii. Rule 12(b)(6): Where the complaint is ambiguous, the court ruling on the motion is required to construe in favor of the pleader. if the motion is denied and the suit proceeds, the factual allegations of the complaint may be challenged as unsupported by the evidence. General demurrer is a motion asserting that the pleading does not state facts sufficient to constitute a cause of action.

f. Access Now, Inc. v. Southwest Airlines. If you plead too much, you risk pleading yourself out of court. Also, if you do not include a necessary part of a prima facie case you will not survive a 12(b)(6) motion.

g. Swierkiewics v. Sorema, N.A. Hungarian native (53) that was demoted, when he had 26 years of experience for a French national with only 1 year of experience. Claim dismissed for not establishing in the complaint a prima facie caseRule: Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint does not have to allege facts that establish a prima facie case, but rather just needs a short and plain statement of the claims showing why they are entitled to relief.

h. CONLEY V . GIBSON . Group of black railroad employees brought suit after being demoted or fired, union did nothing. Rule: A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that P can prove no set of facts in support of his claim which would entitle him to relief. All the rules requires is a short and plain statement of the claim that will give D fair notice of what P’s claim is and the grounds upon which it rests.

i. Notice Pleading: Claim might be so vague as to not tell D who, what, where and why of the dispute. Another problem is that there is no set of facts that P could prove in support of his claim that would entitle him to relief.

ii. FRCP 12(e): Motion for more definite statement allows remedy for vague complaint but is rarely granted. Pleading satisfying rule 8(a) will generally satisfy 12(e).

iii. Most P-favoring view of the rule 8(a) was that if P pleaded an element of a claim, even in conclusory form, complaint wouldn’t be dismissed unless D stated some other fact that indisputably demonstrated that the conclusion would never be provable. Access Now.

iv. This approach to pleading would dispense with any showing of a “reasonably founded hope” that a plaintiff would be able to make a case. page 622.

i. Bell Atlantic Corp v. Twombly. Small telecom companies have monopolies over areas; P pleads conspiracy. The court finds no convincing evidence that the facts indicate any agreements. Rule: The claim must be plausible (as opposed to conceivable); plausible enough to cause the D to spend all the money on discovery.

j. Ashcroft v. Iqbal. P, a citizen alleged that following 9/11 he was arrested and detained solely on the basis of race. S.Ct. held that the complaint failed to state a claim of unlawful discrimination. Twombly applies to all civil actions including those pleading discrimination. Court also stated that only a complaint whose well-pleaded facts state a plausible claim for relief survives a motion to dismiss. Allegations stated the Mueller and Ashcroft developed the plan to detain Arab Americans and Court rejected this saying “given more likely explanations, they do not plausibly establish this purpose. Rule: Pleader must show that the claim is plausible as well as provide evidence for the claim.

Burden of Pleading

k. Gomez v. Toledo. Former police officer in Puerto Rico, contended that his dismissal from the PR police force had violated principles of procedural due process. Issue of whether the plaintiff must allege that the official has acted in bad faith in order to state a claim for relief, or whether the defendant must plead good faith as an affirmative defense. Rule: A plaintiff is not required to anticipate in his complaint a defense that a defendant might raise in order to state a claim for relief

l. FRCP 8(c): Affirmative defenses – In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including (9 affirmative defenses)

i. Burden of persuasion: Describes the standard that the finder of fact is required to apply in determining whether it believes that a factual claim is true. Depending on the issue and on the type of case, the party with the burden of persuasion must meet different standards of persuasiveness.

ii. Burden of production: Burden of placing sufficient evidence in the record supporting all essential elements of her claim to allow the finder of fact to find in her favor.

iii. Burden of pleading: Determines who must allege that element in the pleadings. m. FRCP 9: Pleading Special Matters

i. (b) Fraud or Mistake; Conditions of Mind: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

1. Aim is to prevent Ps from stating a claim just by adding the word “fraudulently” to a description of a financial transaction. Ps are required to state the statement verbatim or make clear the statement was one of material fact and that it was false.

ii. Tellabs, Inc. v. Makor Issues & Rights. Tellabs developed fiber optics cables for phone companies. They are accused of engaging in a scheme to deceive stockholders. Rule: A plaintiff alleging fraud in an action, must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference.

n. Ethical Constraints on Pleadings

i. McCormick v. Kopmann. Suit against D for causing an accident in which her husband was killed. Also sued Huls for violating a state law by serving the decedent alcohol. Rule: A complaint may contain inconsistent allegations even though proof of one negates any fault on the basis of another.

1. FRCP 8(d)(2): A party may set out two or more statements of a claim or defense alternatively or hypothetically. Pleading is sufficient if any one of them is sufficient.

2. (d)(3): A party may state as many separate claims or defenses as it has, regardless of consistency.

ii. Zuk v. Eastern Pennsylvania Psychiatric Institute. Appeal from an order of sanctions imposed under § 1927 and FRCP 11 in a copyright infringement suit for tapes of two psychology sessions that were available for rent. Motion for dismissal was granted and Zuk was liable for attorney’s fees. Rule: Sanctions may be imposed upon an attorney pursuant to § 1927 where the attorneys who multiply proceedings in a case unreasonably to satisfy the excess cost as a result. Aim is to deter intentional and unnecessary delay.

1. What constitutes a frivolous claim under FRCP 11? There are four elements:

a. A requirement that every pleading, motion or other paper be signed; (b) a declaration that the signature shall be treated as a certification that the document has certain attributes; (c) a description of the required attributes: that the document has been prepared after reasonable investigation and to the best of the signer’s knowledge, information, and belief the document meets minimum standards of factual merit; and (d) a description of the standards and process for the award of sanctions.

b. (c)(2): A litigant can escape sanctions by withdrawing an offending pleading or representation within 21 days of being served with a motion by an opposing party. Safe Harbor Rule.

VIII. RESPONDING TO THE COMPLAINT (ANSWER)

a. Zielinski v. Philadelphia Piers, Inc. P was injured while operating a forklift. P sued the wrong party. Rule: If a D makes an ineffective denial of part of the complaint and knowingly allows P to continue to rely on the facts as stated, D may be estopped from denying those facts at trial. A failure to deny has the same effect as an admission. FRCP 8(b)(6).

i. Rule 15(a)(1): allows a party to revise a pleading “as a matter of course” (without having to seek permission) if no responsive pleading has been filed, or, if the pleading is one to which no responsive pleading is permitted and the amendment is made within 20 days of service of the initial pleading.

ii. (a)(2): Leave to amend “should freely be given when justice so requires”b. Worthington v. Wilson. P was arrested by two police officers and the handcuffs caused some bones

to break. P sued but didn’t know the officer’s names so he sued fictitiously. Didn’t amend until the SOL had expired. No relation back here because the amendment did not correct a “mistake,” but rather corrected a lack of knowledge at the time of the original complaint. Rule: Under FRCP 15(c), adding an additional party by amendment of the pleadings only relates back to the date of the original complaint if the parties originally listed were listed by “mistake.” “Mistake” means the wrong name, not listing “unknown” or something else to indicate lack of knowledge or identity of the party.

i. If adding a new party, under FRCP 15(c)(1)(C), three requirements are necessary:1. The claim to be added by amendment against the new party arises from the same

conduct, transaction or occurrence as the original claim (FRCP 15(c)(1)(B). 2. New party had notice, within the period for delivery of the original complain, that

the action had been filed;3. New party knew or should have known that, but for a mistake as to the identity of

the proper party, the original action would have been against him.

ii. An amended complaint which changes the name of the defendant will relate back to the filing of the original complaint if it arises out of the same conduct contained in the original complaint and the new party was aware of the action within 120 days of the filing of the original complaint.

JOINDER AND CLASS ACTIONS

IX. Joinder of Claimsa. Multiple Claims in the Same Pleading: FRCP 18(a) – Joinder of Claims: Provides that a party

asserting a claim for relief—whether as an original claim by plaintiff, as a counterclaim by defendant, as a cross-claim against a co-party, may join any other claim as the party has against the opposing party.

i. There is no requirement in the rule that the joined claims be related to one another beyond the requirement that the same party assert them in the same pleading. There is a limitation on the federal court’s subject matter jurisdiction if unrelated claim and no independent basis for jurisdiction. Also, joinder of claims is never required by FRCP

18(a), but is an option. ii. Amount in Controversy: Aggregation of claims is possible to satisfy the jx amount).iii. If there is only one P and one D, use Rule 18.

b. Severance and Consolidationi. FRCP 42(a) – Consolidation: If actions before the court involve a common question of

law or fact, the court may: (1) join for hearing or trial any matters at issue, (2) consolidate the actions; or (3) issue any other order to avoid unnecessary cost or delay.

ii. FRCP 42(b) – Separate Trials: For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or third party claims.

c. Counterclaims: FRCP 13(a) and (b)

i. Jones v. Ford Motor Credit Company: African-American car buyers alleged racial discrimination under EEOC and sought to represent a class of similarly situated car buyers. D denied and asserted state-law counterclaims against three of the buyers. D denied and asserted state-law counterclaims against three of the buyers. Before ruling on the class certification, the district court determined the counterclaims were permissive. Rule: In a potential class action, prior to class certification, it is premature to rule on whether permissive or conditional counterclaims lack subject matter jurisdiction.

1. D’s counterclaims are permissive because they did not arise out of the transaction or occurrence that is the subject of P’s claim.

2. Counterclaim v. Permissive Test: “Logical relationship” between the counterclaim and the main claim. “Essential facts of the claims” must be so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.

ii. FRCP 13(a) – a counterclaim is compulsory if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. If D doesn’t bring it up in a suit, he cannot assert that claim in any subsequent suit. Two exceptions: [1] A counterclaim need not be filed in the current proceeding if it is already pending as a claim in another proceeding; [2] Need not be filed if the opposing party has not obtained in personam jurisdiction over the party who has a potential counterclaim. [preclusion]

iii. FRCP 13(b) – Permissive Counterclaim: A counterclaim is permissive if it does not arise out of the same transaction or occurrence as the P’s claim. A failure to assert a permissive counterclaim has no preclusive effect.

1. Definition of “same case or controversy” under Article III. See United Mine Workers

v. Gibbs.

2. Supplemental jurisdiction in § 1367(b) applies in both federal question and diversity cases to counterclaims under FRCP 13(b).

d. Cross-claims Against a Co-party: FRCP 13(g) – A pleading may state as a cross-claim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the

subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action.

i. Fairview Park Excavating Co. v. Al Monzo Construction. Jurisdiction question arising out of an action brought by Fairview against Monzo, its general contractor. P completed its work but did not receive payment. Once the main claim was defeated on non jurisdictional grounds, the cross claim was also dismissed because of no independent basis for jurisdiction. Rule: Once a district court judge has properly permitted a cross-claim, the ancillary jurisdiction that results should not be defeated by a decision on the merits adverse to P.

1. Because a cross-claim under FRCP 13(g) must satisfy a fairly strict relatedness requirement, it satisfies whatever relatedness requirement inheres in the “same case or controversy” requirement of § 1367.

X. Joinder of Partiesa. Rule: An action must be prosecuted in the name of the real party in interest. Supposed to reduce

the risk that the D may later have to respond to a second suit brought by the real party in interest who actually had the legal right to enforce the claim. When the real part in interest is not named as the P, the person who is suing is the “nominal party.” FRCP 17(a)

b. Assignments. A claim can be assigned to someone by some operation of the law and that new person is now the real party in interest. Use of assignment to create diversity jurisdiction is regulated by § 1359, which bars jurisdiction “in which any party, by assignment or otherwise, has been improperly made or joined to invoke the jurisdiction of the court.”

c. Permissive Joinder: FRCP 20(a): Authorizes permissive joinder of parties, so long as satisfy two tests:

i. Single transaction or occurrence: Their claims for relief must arise from a single “transaction, occurrence, or series of transactions or occurrences;” and

ii. Common questions: There must be a question of law or fact common to all plaintiffs, which will rise in the action. It permits joinder, but does not require it.

d. Kedra v. City of Philadelphia. P and her children filed a civil rights action against D, stemming from a series of incidents of police brutality and illegal interrogations. D’s claim improper joinder of parties because events did not occur over a span of fifteen months. Rule: Fact that certain claims and parties relevant span a lengthy period of time will not, in itself, prevent joinder.

i. Under the rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.

ii. Jurisdiction in Permissive Joinder Cases

1. Where joinder of defendants is involved, the requirements of in personam jurisdiction must be met with regard to each defendant individually.

2. Each defendant must individually fall within the in personam jurisdictional limits of the court (minimum contacts).

3. all parties joined under FRCP 20 must meet federal subject matter jurisdiction requirements. Supplemental jurisdiction does not generally apply to Rule 20 joinder of multiple defendants

iii. Comparison with FRCP 18(a): This rule deals with joinder of claims. There is no relatedness requirement in Rule 18(a), but as soon as there are multiple parties, then requirements of Rule 20(a) must be satisfied.

iv. Supplemental Jurisdiction – Diversity Cases. There is no supplemental jurisdiction over state-law claims against non-diverse defendants who have been joined under Rule 20.

e. Compulsory Joinder: FRCP 19 – Required Joinder of Parties. i. (a)(1) Required Party: A person who is subject to service of process and whose joinder will

not deprive the court of subject-matter jurisdiction must be joined as a party if (A) in that person’s absence, the court cannot accord complete relief among existing parties or; (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may (i) impede person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double or multiple inconsistent obligations.

ii. Temple v. Synthes. A plate and screw device implanted in P’s back malfunctioned. P filed a federal court products liability action against D, and a state court medical malpractice and negligence action against the doctor. Rule: Joint tortfeasors are not necessary parties under FRCP 19(a). Merely a permissive party.

iii. Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center. P, a full-line jewelry store, leased space in D’s shopping center. Lease provided that no more than two such stores would be allowed to rent space other than P in the mall. P brought this action to enjoin and D moved to dismiss on the ground that the new store was not joined. Rule: A tenant under a lease that violates a clause in another tenant’s lease from a common landlord is not an indispensable party under FRCP 19.

1. FRCP 19(b) requires the court to look first to the extent to which judgment rendered in party’s absence might be prejudicial.

f. Note on Compulsory Joinder: Three criteria, if any are satisfied; the absent person is to be joinedi. Complete Relief – Person will be joined if this can’t be accorded ii. Impair or Impede an Interest as a Practical Matteriii. Double, Multiple, or otherwise inconsistent obligations

XI. IMPLEADER (**If it starts with “I” then we are bringing in a new party)a. FRCP 14(a)(1) – you, as a defending party may join a third party D who is, or may be, liable to

you for all or part of the claim against you. If you file the third-party complaint more than 14 days after serving the original answer, then you must by motion obtain the court’s leave.

b. FRCP 14(a)(2) – Third party defendant can (A) assert any defense under Rule 12; (B) must assert any counterclaim under Rule 13(a), and may assert any counter claim under Rule 13(b) or any cross-claim against third-party defendant under Rule 13(g).

i. **Third parties in impleader claims do not affect diversity jurisdiction or venue. ii. § 1367(a) gives supplemental jurisdiction for Rule 14(a) claims. iii. Once a Rule 14(a) third party impleader claim is made, the third party P can add

unrelated claims against the third party D under Rule 18(a). iv. **Claim must be derivative – For a third-party claim to be valid, the third-party plaintiff

may not claim that the third party defendant is the only one liable to the plaintiff, and that he himself is not liable at all.

c. Banks v. City of Emeryville. P arrested for public drunkenness and then dies in her cell after fire. Defendant’s implead third party defendant for products liability on the mattress that caught fire. Rule: In a federal action, an independent basis for federal subject matter jurisdiction is not necessary for impleader of a third party.

i. Court has discretion to allow impleader where the third party complaint does not unnecessarily complicate the case, or prejudice any of the parties, and is clearly based on the same set of operative facts.

ii. Third party complaint need not have an independent basis for federal jurisdiction. d. Owen Equipment & Erection Co. v. Kroeger. P’s husband (Iowa) died wile on the job. Suit against

Omaha Public Power (Nebraska) and D filed a third-party complaint against the employer (Iowa). Basis of federal court jurisdiction was diversity. Rule: Diversity jurisdiction does not exist unless each defendant is a citizen of a different state.

XII. INTERVENTION

a. FRCP 24(a)(1) – Intervention of Right: Given an unconditional right to intervene by federal statute; or

b. FRCP 24(a)(2): Claims an interest relating to the property or transaction that is subject of the action, and is so situated that that disposing of the action may impede the movant’s ability to protect its interest.

c. FRCP 24(b) – Permissive Intervention: Court may in its discretion allow an interested person to become a party. Broadly authorizes intervention of any person who has a claim or defense that shares with the main action a common question of law or fact.

d. Bustop v. Superior Court. Desegregation case against LA schools, representing interest of minority children. P, an organization of 65k white parents sought to intervene in the case. Rule: Before trial, any person have an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action.

XIII. INTERPLEADER

a. A joinder device that allows the stakeholder to force all the claimants into one case, and asks the court to determine who gets the bag of money.

b. Once the stakeholder’s right to interplead is established, and he has deposited the funds or property in court, he ceases to be a party to the litigation; it is then up to the adverse claimants to litigate their claims to the property.

c. Two types (P can choose between which type to use)i. Statutory Interpleader (§ 1335)

1. Nationwide service of process in a § 1335 interpleader action is permitted by § 2361 and Rule 4(k)(1)(c).

2. Diversity is satisfied as long as some two claimants are citizens of different states pursuant to § 1335(a)(1) – minimal diversity.

3. Amount in Controversy – Must exceed $5004. Venue - § 1397 allows suit to be brought “in the judicial district in which one or

more of the claimants reside. (do not use § 1391)a. **Other suits restrained: To further the goal of protecting the stakeholder

from double liability, § 2361 allows a court hearing a § 1335 action to enjoin all claimants from starting or continuing any other action, in any state or federal court which would affect the property.

ii. Rule Interpleader (Rule 22)

1. Main difference between statute and rule interpleader is that Rule 22 interpleader has no effect on ordinary jurisdictional and venue requirements.

2. Complete Diversity – Diversity must be complete between the stakeholder and all the claimants on the other (or else there must be a federal question, but its rare)

3. Service of Process – Regular service of process (under Rule 4(k)(1)(a) and long arm statutes)

4. Amount in Controversy – Must be in excess of $75,000. 5. No Deposit – The stakeholder is not required, as in statutory interpleader, to

deposit the property or money into court. Rule 22 specifically allows the stakeholder to “aver that he is not liable in whole or in party to any or all of the claimants.

XIV. DISCOVERY

a. Required Disclosure

i. FRCP 26(a): Parties must produce information even if the other side does not ask for it. ii. Three required disclosures under Rule 26(a)

1. Initial Disclosures – Required to name people and documents with discoverable information that you may use at trial to support your claim

2. Expert Witnesses – The names of expert witnesses who will present evidence at trial, must be revealed without specific request (FRCP 26(a)(2)(A))

3. Everything that you’re going to rely on at trial

b. Expert Witnesses (Rule 26(a)(2)(B))

i. Must provide a written report containing “a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used; a statement of the compensation; the qualifications of the witness; and a listing of any other cases in which the witness has testified as an expert within the past four year

ii. Initial Meeting – FRCP 26(f): Parties required to meet after the complaint is served in order to develop a proposed discovery plan; outline of discovery plan needs to be submitted to the court within 14 days of the meeting.

c. Deposition (FRCP 30)

i. A party may depose any person, including a party, without leave of court, who possesses relevant information within the meaning of Rule 26. All parties must be given reasonable written notice of the time and place of the deposition.

ii. Conduct

1. FRCP 30(c)(2) and (d)(3): Lawyers may instruct the witness not to answer at a deposition but is limited to (1) preservation of a privilege; (2) enforcement of a protective order limiting discovery; or (3) ending the deposition because of abusive behavior by the deposing party.