Civil-Procedure Outline Greiner Blueberry (2)

8/10/2019 Civil-Procedure Outline Greiner Blueberry (2)

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SUBJECT MATTER JURISDICTION If court at any point notices a defect in SMJ, it must kick lawsuit out of federal court

I. FEDERAL QUESTION/ARISING UNDER JURISDICTION Requirement #1: Constitutional limit (Article III 2)

o

Federal law must be an ingredient of the case (Osborn)! This is pretty broadas long as federal law is somehow in dispute in the

case, it can constitutionally be heard by federal court Requirement #2: Statutory limit (1331)

o Option #1: Existence of federal question must appear on the face of the plaintiffswell-pleaded complaint (Mottley)

! FQJ is valid if federal statute allows party to bring suit Weird clarification: if federal statute creates a cause of action but

does not allow a party to bring suit under federal law (i.e. statuteauthorizes parties to bring suit against each other using localcustoms) there is no FQJ

o

Option #2: Smith/Grableexception toMottleys well-pleaded complaint rule! Step #1: Plaintiffs state-law claim turns ona question of federal law

When it appears from Plaintiffs pleadings that Plaintiffs right torelief depends upon proving a proposition of federal law, federalcourts have jurisdiction over a state-law cause of action (Smith)

! Step #2: Factors (Grable) Federal law issue is a pure issue of law (rather than fact-

bound) FQJ in this case will not upset state/federal court balance

o If allowing this would sweep too many into federal courts,then deny

There is a significant federal interest in having case heard infederal court (i.e. federal government wants federal interests to betreated fairly)

Congressional intent: if Congress seems conspicuously silent,choosing to notconfer federal jurisdiction, then FQJ is invalid(Empire HealthChoice)

Declaratory judgment (2201(a))

o Exception to the well-pleaded complaint ruleo Greiner Imaginary Lawsuit Rule

! If there would have been federal SMJ in imagined lawsuit (the lawsuit thatthe requested declaratory judgment is seeking to prevent), then there is

federal SMJ over the declaratory judgmento Important statute: allows potential D to become the P (and master of complaint)

II. DIVERSITY JURISDICTION Irrelevant: constitutional limit (Article III 2)

o If any defendant is diverse from any plaintiff, then DJ is valid Relevant: statutory limit (1332)

o Requirement #2: Amount in controversy: must exceed $75,000


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Requirement #1: domicile complete diversity domicile of all plaintiffs must bediverse from all defendants (Strawbridge)

o Determining individuals domicile! Start with state of birth! Domicile only changes when a person takes up residence in a different

domicile AND intends to remain thereo Corporate domicile

! State of incorporation AND state of nerve centero Unincorporated association (i.e. union) domicile

! Every state where any member is a resident

o Alien domicile! Think of them as being resident of a 52ndstate

Requirement #2: amount in controversy must exceed $75,000o Plaintiffs claim accepted in good faith

! May only be dismissed if it appears to a legal certainty that plaintiff

cannot recover over $75,000o

Aggregating claims!

Single P v. Single D: all claims aggregated (regardless of relatedness)! Single P v. Multiple Ds: no aggregation must meet requirement for each

defendant separately! Multiple Ps v. Single D: one plaintiff must have $75,000 claim then

other plaintiffs seeking to enforce a single right may join regardless ofamount of their individual claims

! Multiple Ps v. Multiple Ds: may not aggregate (for purposes of this class)

III. SUPPLEMENTAL JURISDICTION (1367) STEP 1:Requirements for federal courts to have thepowerto hear supplemental (state-

law) claimson test, walk through these step-by-step1. Identify federal anchoring claima. Analyze claim by claim and party by partyyou only need original

jurisdiction (either 1331 FQJ or 1332 diversity) over oneclaim in thecomplaintthis individual claim is a civil action for the purposes of 1367(Exxon)

2. Identify supplemental claima. Supplemental claims mustformpart of thesame case or controversy as

anchoring claim (1367(a))b. Federal and state claims must emerge from a common nucleus of operative

fact (Gibbs)

i.

Probably sufficient if it involves the same plaintiff or defendantii. Likely sufficient if it comes out of same transactioniii. Outer limits are broad/undetermined

3. If anchoring claim is FQJ, then court may exercise jurisdiction on supplementalclaims and parties

4. If anchoring claim is diversity, limits on which supplemental claims and parties maybe attached (1367(b))....if ALL OF THESE ARE MET, THEN NOSUPPLEMENTAL JURISDICTION (otherwise, go ahead and add!)


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a.

Claim made by a plaintiff

Claim made by a plaintiff againstaperson made a party pursuant toFRCP 14 (TPP), 19 (didnt study), 20

(permissive joinder) or 24(intervenor)

NB: FRCP 23 (class actions) is notone of these limiting rulesthesemay be supplementally attachedliberally

Claim by party seeking to interveneas plaintiffs under FRCP 24(intervenor)

OR party proposed to be joined asplaintiff under FRCP 19 (didntstudy)

b. When exercising supplemental jurisdiction over such claims would beinconsistent with the jurisdictional requirements of 1332 (this step is notstraightforward,Exxon) BIG QUESTION: DOES INCONSISTENTINCLUDE AMOUNT IN CONTROVERSY?

i.

If adding a claim that destroys complete diversity, the claim isinconsistent with 1332 and will kill supplemental jurisdiction

ii. If adding claim that violates amount in controversy requirement, this is

notinconsistent with 1332 and canbe added as supplemental (Exxon)

iii. If adding a claim that violates amount in controversy requirement

AND is a claim made by a plaintiff against a person made a partypursuant to FRCP 14, 20, or 24this is up for debate

1.

Should it be allowed? Possible rationales in play2. If basis ofExxonis that 1367(b) codified a less stringent

diversity requirement for supplemental claims (i.e. only need tomeet complete diversity, not amount-in-controversy for theseclaims)then allow!

a. This would further efficiency aims (trying casestogether that involve same facts)


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b. Potentially negative effects could be ameliorated ifcourt declines jurisdiction pursuant to 1367(c)

3. If basis ofExxonis narroweronly ruling that 1367 conferssupplemental jurisdiction to completely diverse claims notspecifically called out as impermissiblethen dont allow

a.

This would further state court/federal court balanceconcerns, stopping federal government from gobblingup too many suits

b. This would also further fairness to defendantconcernsprevent defendants from being dragged toinconvenient forums on small claims

STEP 2:Discretion: federal courts may declinesupplemental jurisdictiono Statutory provisions allowing discretionary declining (1367(c))none are

automatic, these are FACTORS/OPTIONAL(1)Supplemental claim deals with novel/complex state-law issue(2)Supplemental claim substantially predominates over anchoring claim

(3)

Anchoring claim has been dismissed before trial

Greiner: court probably doesnt mean this if the supplementalclaim would be barred by statute of limitations (because too muchtime has passed while the federal suit was pending)

(4)Exceptional circumstances where there are other compelling reasons Gibbsoffers some possible compelling reasons

o Economyo Fairness to litigantso Convenience to litigantso Preventing jury confusion over a complex case

o How courts interpret supplemental claim discretion! Executive Software(9thCircuit)

To decline supplemental jurisdiction, court must evoke one of the1367(c) categories (see above)

If choosing to decline for exceptional circumstances, court mustarticulate which Gibbsfactors apply

! 7th Circuit Courts can decline supplemental jurisdiction whenever they want

Probably irrelevant history (these were overruled by 1367) Hangover effect the demonstrates courts hesitance to add supplemental parties

o Gibbs: created supplemental SMJ as matter of common law (for claims)o Owen: no SMJ in diversity suit when plaintiff adds party that destroys

diversity

o Aldinger: when Congress specifies certain defendants that may be broughtunder statute, other defendants should not be attached via supplementaljurisdiction

o Finley: can never attach supplemental parties (clearly overruled by 1367)


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IV. REMOVAL JURISDICTION (1441)

Basic principles

o If a suit could have originally been brought in federal court, then in may beremoved from state court to federal court

! Well-pleaded complaint rule applies (removal only possible on plaintiffs

claims, not on defendants possible defenses)o Only defendants can removeo Removal is automatic; federal court then decides whether to remand to state court

! Why? Fairness to parties: worries that state courts wont decide fairly

(especially with out-of-state Ds removing for diversity) Judicial administration: dont want state courts sending a bunch of

cases into federal courto Removal is move from state court to sole geographically-relevant federal district

courto If court or either party at any time realizes there is no federal SMJ, the case will

be remanded to state court Applying removal

o Identify relevant events! Removable event! Removal! Motion to remand to state court

o Then, ask these questions! If P seeking to remand: Did plaintiff motion to remand within 30 days of

removal? If no, case stays in federal court If yes, court should remand if any of the following occur

o

Case began in defendants home state court and the onlycause for federal SMJ is diversity

o Defendants did not unanimously agree to removalo Defendant failed to remove case within 30 days of

removable evento Defendant had consented to state-court jurisdiction (by,

say, filling an answer)! If D seeking to remove: Has it been more than one year since the case

initiated and the defendant has just discovered diversity? No removal possible, unless plaintiff acted in bad faith

V. ABSTENTION DOCTRINE Generally, per 2010 exam, unlikely to plaintiff a stay on a lawsuit he filed When concurrent litigation is ongoing in state courts, when can federal courts decline

jurisdiction? Principles behind abstention doctrine

o Federalismo State-court/federal-court balanceo Desire to not interfere with state governance/administrative systems


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! E.g. tax, criminal, education, etc.! Also: divorces (federal courts wont hear them,Burford)

Applying abstention doctrine: the Colorado Riverstay (abstention under exceptionalcircumstances)(1)Is there simultaneous, parallel action in state courts?

(2)

If parallel action exists, if a holistic consideration of the following factors ispersuasive and clearly justified, dismissal may be warrantedi. Chronological order in which jurisdiction was obtained

ii. Inconvenience of forumiii. Avoiding piecemeal litigationiv. Absence of other litigation in federal courtv. Scope of state-court litigation

vi. Existing participation by plaintiff in state-court action Applying Colorado Rivertest: Clark v. Lacy

o To determine whether a stay is appropriate in a particular case a court mustconduct a two-part analysis

1.

Truly concurrent litigation is in progress: Determine whether state-court andfederal-court actions are actually parallela. Need not be identicalb. Substantial likelihood that the state litigation will dispose of all the

claims presented in the federal casec. Substantially the same parties litigating substantially the same issues at

the same time as in another forum2. (Only if parallel test is met) consider factors that might demonstrate

exceptional circumstances exist that allow federal district court to turn downjurisdiction

a. Whether the state has assumed jurisdiction over propertyb. Inconvenience of federal forumc.

Desirability of avoiding piecemeal litigationd. Order in which jurisdiction was obtainede. Source of governing law (state v. federal)f. Adequacy of state-court action to protect federal interestsg. How far along each of the concurrent actions ish. Availability of concurrent jurisdictioni. Availability of removalj. Vexatious or contrived nature of federal claim

3. Note: judges decision is immediately appealable (Cohen, collateral order)


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PERSONAL JURISDICTIONCONSTITUTIONAL LIMITS

Full faith and credit (Article IV)

Due process clause (14thAmendment)

IN REM JURISDICTION Against property: court adjudicates ownership of piece of property against the entire

worldo Cases have odd namesThe Nautilus or In re #4 Privet Dr

Test: Court must validly exercise dominion over property (attach property)o Court will seize it by posting on the property, entering a lien, or publicizing in

state title books (or if small enough actually putting it in vault)o If physical object, must be within geographical jurisdiction of the stateo If incorporeal, this would require deeper analysis

(Not a jurisdiction question, but keep in mind) Remember for procedural due process,court must meet notice and opportunity-to-be-heard requirements

QUASI-IN-REM JURISDICTION Tests(two possible, discuss both)

o Test #1: minimum contacts among Ds property interest in seized property,subject matter of the litigation, and forum (Shaffer)

! Greiner doesnt think court takes this test (which treats quasi-in-rem like

International Shoes in personam test) seriously! There are really never contacts between the seized property and the

subject matter of the litigation! Courts may be reserving this for potentially absurd situations (Shaffers

DE statute that would have allowed quasi-in-rem suit in DE of anyshareholder of a DE corporation)

o Test #2: tag jurisdiction (Burnham)! Courts generally apply a version of theBurnhamrule for tag jurisdiction

to propertyif property in the geographic confines of the state, then courtcan exercise quasi-in-rem jurisdiction

Remember:Burnhamis really an IPJ testthis is an analogy Steps in a quasi-in-rem action

o P alleges D owes him some money (for tort, breach of contract, etc.)o P asks court to attach Ds property that exists within the geography of the state

! State seizes and attaches Ds property! Property need not be related to the lawsuit

o

P proves in suit that D owes him moneyo Ds seized property sold to satisfy the judgment

Why would you use it: two scenarioso Scenario #1: difficult to serve process upon Do Scenario #2: difficult to obtain personal jurisdiction over D

IN PERSONAM JURISDICTION LAWSUIT STEPS & CHALLENGING IPJ


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Steps in an IPJ lawsuito Lawsuit 1: Plaintiff sues defendant in a court other than defendants home courto Lawsuit 2: P seeks to enforce Lawsuit 1 in Ds home court

! Plaintiff says look, the defendant owes me money as determined inLawsuit 1, you should seize his property

!

D can challengeDefendants response to originalsuit

Action in original court Action in enforcing court

D appears, defends on the merits,

and loses

Enters judgment for P Must enforce the original

judgment, D has waved objection

to IPJ

D makes special appearance, courtagrees that it lacks IPJ

Dismisses claim

D makes special appearance, court

upholds IPJ, D defaults on the merits

Enters judgment for P Must enforce the original

judgment

D defaults (this is Ds best option ifhe is positive the original court

doesnt have IPJ)

Enters default judgment forP (unless lack of IPJ was

clear on face of complaint)

Will only consider question of IPJ;if it finds that it does not, it will

not enforce

D defaults, later tries to contestmerits in enforcing court Enters default judgment forP Must enforce original judgment;Full Faith and Credit clauseprevents reexamination of merits

IPJ EXAM STEPS Scenario #1: P sues D in state of domicile

o Yes: general jurisdictiono Remember for business: state of incorporation, state of nerve center, and

ubiquitous presence (i.e. Walmart in any statenot technically state of domicilebut such a purposeful availment of the state that it basically counts)

Scenario #1b: P tags D in stateo

Burnhams probable rule (4-4-1 splitif I face this in test, also do a scenario #3analysis)

! Rationale (for why tag suffices, from Scalia): traditionally, the tag hasbeen the very basis of due process

Scenario #2: D consents to IPJ (or effectively consents by responding to lawsuit withoutraising IPJ right away)

o Yes: general jurisdiction Scenario #3: Non-consenting D not domiciled in forum state

o Step #1: determine statutory limit! State court: state statutory limits (long-arm statutes)

Most states: go to the limits of the Constitution (move on to

constitutional analysis) Other states: give specific situations were IPJ may be exercised

against out-of-state Ps (fit lawsuit into this, then move on toconstitutional analysis)

! Federal court: federal statutory limits Rule 4(k)(1)(A): Piggy back statute

o If the court of the state in which federal court sits canexercise IPJ, then federal court can exercise IPJ


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o Applies whenever Congress doesnt otherwise authorizeIPJ

Rule 4(k)(1)(C): express Congressional authorizationo When a statute authorizes nationwide service of process,

personal jurisdiction may be established in any district,

given the existence of sufficient national contacts (Go-Video)! Congress has ever only done this with respect to

federal causes of action, never done it with state lawcauses of action

o First, find federal statute explicitly authorizing IPJo Then, perform your constitutional minimum contacts

analysis with the US as a whole(i.e., pretend like the US isa single state for the purposes of the IPJ tests)

Rule 4(k)(2): for federal claims outside state court jurisdictiono Only apply if 4(k)(1)(A) or 4(k)(1)(C) dont apply/failo

Only for federal causes of actiono Perform your constitutional minimum contacts analysis

with the US as a whole(i.e., pretend like the US is a singlestate for the purposes of IPJ tests) (Pyrenee)

o Step #2: perform constitutional analysis! Threshold requirement: Minimum contacts (International Shoe)

Contacts among defendant, forum, subject matter of litigationo Brennan: almost anything will meet thiso Conservative judges: somewhat of a bar (see below)

Contract may be a minimum contact (McGee)

o But seeHanson, where no minimum contact with the statethat the contracting party moved to, even though the Dmaintained a relationship with the contracting party afterthe move

! Takeaway: only minimum contact with the statewhere the contract initiated

! Once you have minimum contacts: other factors (analogize to these cases) Purposeful availment (J. McIntyre)

o Targeting the forum specifically (not mere stream ofcommerce)

o Seeking the benefit/protection of the laws of the forum Plaintiffs interests (McGee) States interests (McGee)

o

State has statute authorizing

o Protect its residents Foreseeability (World-Wide Volkswagen) Tag in the state

o NOTE: This may create general jurisdiction (unclear afterBurnhams 4-4-1 split)

Minimal weight (but do consider):


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o Efficiencyo Needs of interstate judicial systemo Convenience of parties/witnesseso Desire to provide a forum in which to litigate dispute

Effects test (Calder)o

Broad interpretation: where effects of Ds act are felt, courtmay exercise IPJo Narrow: need something more than effectsneed express

aimingo Narrowest interpretation (Griffis)

! 1: intentional tort! 2: P felt brunt of harm in the forum state! 3: D expressly aimed conduct at forum state

o Narrow interpretation is likely rightotherwiseJ.McIntyre would have met this

! Adages for when there is NO jurisdiction

Stream of commerce (J. McIntyre)

Unilateral activity (Hanson, World-Wide Volkswagen) Blame/domestic law (Kulkoallowing daughter to move to CA

was not a purposeful availment of CA)! Internet jurisdiction (tricky)

Example is Griffis But Griffisis a messplaintiff must show

1. Defendant committed an intentional tort2. Forum state was focal point of the plaintiffs injury (brunt

of the injury felt there)3. Defendant expressly targeted forum state

a. Defendant knew that plaintiff would feel brunt of harmin forum state, AND

b. Show specific activity showing that defendant targetedforum state

Implication of this test is: target as broad an audience as possible,

that way you can only be brought under jurisdiction in your homecourt

How might you distinguish Griffis and Calder?

o Where is the reputation located?

o Where is the center of the industry in which the reputationmatters?

o In Calder, all of the peripheral damage to reputationhappens in CA because people who hold a conception ofher reputation are in CA

OUTDATED: HISTORICAL EVOLUTION OF IPJ Now-outdated rule: territorialism and the traditional view (Pennoyer)


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o In order to exercise personal jurisdiction, defendant must be personally servedwithin the state (the courts jurisdictional limits)

o Why require in-state service in order to exercise personal jurisdiction?! Puts a burden on plaintiff, limiting the situations in which plaintiffs can

bring action!

Prevents inconvenience to defendant! Prevents courts from extending their reach too far! Sovereignty among the states! Protecting individuals rightsto the extent that an individual can consent

to submit himself to jurisdiction of a state

o Piece of Pennoyer that is still good law:! Due Process clause prevents courts from projecting power onto

individuals outside of their boundaries! What outside the boundaries means changes through subsequent cases

o Pennoyer gives a territorial doctrine to personal jurisdictionwhy?! Power/sovereignty issue

States should not be able to exercise power within other states!

Fairness to the defendant Defendants ability to consent to states jurisdiction Tag within state gives notice When tagged within state, it cannot be too much of an

inconvenience to plaintiff Challenges to the traditional view: cars, contracts, and corporations

o Kane (cars)! States made requirement that drivers appoint someone to receive process

in state in order to drive within the state boundaries.! This is totally unworkableif someone fails to appoint a receiver, they

still have to be tagged within the stateo

Hess (cars)! States decided that State X can gain personal jurisdiction over non-

residents by declaring that the use of a highway by a non-resident was theequivalent of the appointment of the registrar as agent on whom processcould be served

! Courts are abandoning strictPennoyerdoctrine


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VENUE Does not apply to cases removed from state court! If a case is removed, assume venue is

proper (should be the federal district embracing that state court)

BASIC PRINCIPLES

1391Two basic routes to venueyou can pick either one!

1. Residence of defendants (b)(1)a. Onlyif all defendants reside in the same stateb. Pick any district in which anydefendant resides (there may be multiple valid

venues)2. Location of substantial events/disputed property (b)(2)

a. Pick a district in which a substantial part of events/omissions/property leadingto claim are located (there may be multiple valid venues)

ONLY if neither of those routes applies (because event/omission/property is outside the US)

(b)(3)3. Any location where any defendant is subject to personal jurisdiction

Special rules to keep in mind For individuals (US citizens and lawful permanent residents)

o Reside = district in which she is domiciled For aliens

o Reside = everywhere For corporations

o Reside = any district where (if the district were its own state) the corporationwould be subject to personal jurisdiction

!

Reside = (probably any) district in state of incorporation! Reside = the specific district in which nerve center is located! Reside = the specific district with which corporation had significant

contacts leading to particular claim! (maybe) Reside = districts where corporation has a

persistent/overwhelming presence (i.e. Walmart in any district) For unincorporated associations

o Reside = any district where subject to personal jurisdiction Statutes may further restrict venue for certain types of claims (e.g. patent) DOES NOT APPLY TO REMOVAL

Alsodefendant may waive right to challenge an improper venue By declining to/failing to challenge venue By signing a contract with a forum selection clause

When IPJ/Venue relationship is tricky Venue (yes) and IPJ (no) J. McIntyre

o Venue because a substantial portion of events happened in NJ (1391(b)(2))


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o IPJ no, because federal courts ability to have IPJ is dependent upon state-courtability to have IPJ (Federal Rule 4(k)(i)(2))

Venue (no) and IPJ (yes)o Wrong district in right state

TRANSFERS WITHIN FEDERAL COURT SYSTEM When transfer is valid (federal transfer statutes)

o Action may only be transferred to a court where the action might have beenbrought at time of filing (Hoffman)

! Only considers IPJ and venue (does not include whether it might havebeen brought because of statute of limitations or the law of the circuit)

o Or if all parties consent, you could bring it to any forum (so long as no SMJproblems, I think)

o Or, if court notices IPJ problem, it can transfer sua sponte HCOL and transfer (Greiner Happy Court Rule)

o When, in a diversity action, federal court (transferor) transfers to another district

(transferee)o If transferor was happy (had IPJ and proper venue), use HCOL rules of transferor

state! Merely a change of courtroom

o If transferor was unhappy (lacked IPJ or had improper venue), use HCOL rules oftransferee state

! Makes senseplaintiff should not get benefit of HCOL rules of a state inwhich they improperly filed

FORUM NON CONVENIENS Only for moving litigation to state court or foreign countrys court

Factors for determiningforum non conveniens (Gulf Oil Corp.)o Ease of access to evidenceo Witnesses (compelling unwilling witnesses and ease of access for willing

witnesses)o View of premises (ability to see property if necessary)o Judicial administration

! Ease! Speed! Expense! Avoiding congestion! Governing state or foreign law/judicial expertise (in diversity cases, best

to have trial in the state of the law)o Local/community interest

! Not imposing jury duty on distant people! Allowing people with an interest in the trial to see the trial

o (Added byPiper...real party of interest [i.e. who will benefit from thissuitwhere the relatives of the deceased in a wrongful death action reside])

! Where does plaintiff want to litigate?! Where does defendant want to litigate?


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Limit onforum non convenienso Change in substantive law when plaintiff will have NO REMEDY AT ALL in the

alternate forum (Piper Aircraft)! Otherwise, court should not really consider change in substantive law


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EXPANDING THE LAWSUIT

ADDING PARTIES/CLAIMS TO THE LITIGATION Steps for determining if you can add a party or claim (walk through claim by claim)

o Step #1: Do you meet the requirements of a FRCP that allows you to add the

claim?! Add a plaintiff (20)! Add a defendant (20)! Add third party (14)! Crossclaim (13)! Counterclaim (13)! Add any other claim against a party already in the lawsuit (18)

o Step #2: Does the court have SMJ over this claim?

! Option #1: FQJ If claims basis is FQJ, then yes

! Option #2: Diversity (tricky)

Amount in controversycan aggregate claims by single P againstsingle D

o Valid: P sues D on $40k contract claim and unrelated $40ktort claim

Complete diversity! Option #3: Supplemental jurisdiction(see above for more)

Common nucleus of operative fact Claims by plaintiffs must not destroy complete diversity (see

above for more, keepingExxonin mind)o Step #3: IPJ

o Step #4: Venue

General requirements:o FRCP allowing addition of partyo SMJ over the plaintiffs

! If adding a party destroys complete diversity, the case cannot be in federalcourt

Frequent requirement: same transaction or occurrence

o Same as common nucleus of operative facts test from supplemental jurisdictiono Basic test

! Logical relationship! Separate trials would involve substantial duplication of evidence and

time/effort

o

Factors (Heyward-Robinson, two excavation contracts found to be same T/O)! Close and logical relationship! Same parties! Same type of work!

Substantially same time period! Interrelated contractually! Same insurance policy covered both contracts! Same evidence would be used in both cases


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! Impossibility of trying one claim without bringing in substantial evidenceabout the other

Policy being furthered here: efficiencyo Obviously more efficient for courts to dispose of related claims all in one suito Joinder, although it could be messy, still furthers efficiency aims with 42

consolidation/separate trials requiremento Also enhances efficiency for parties, who no longer have to file separate lawsuits

Policy also being furthered: fairness to partieso Counterclaims/crossclaims/third-party claims prevent party from having to pay

one moment what they have the right to recover the next Another policy: preserve Ps right to choose his forum

o Exception to this is compulsory counterclaim

COUNTERCLAIM (FRCP 13)

Same T/O: compulsory [13(a)]

Not T/O: permissive [13(b)] Jurisdiction over counterclaims

o Majority of circuits: permissive counterclaims require only a logical relationshipbetween counterclaim and main claim

o Some circuits: permissive counterclaims can only be added if they have anindependent basis of federal jurisdiction (i.e. FQJ or Diversity+AIC)

Effect of failing to assert compulsory counterclaim: cannot raise issue in subsequent suitin federal court

ADDING A PLAINTIFF (PERMISSIVE JOINDER FRCP 20)

When another plaintiff wants to sue the same defendant(s) Requirements [20(a)(1)]

o Same T/O

o Common issue of law or fact (there is always a common issue of law or fact) Triggers a counterclaim from defendant(s) to added plaintiff

o

o Same T/O: compulsory [13(a)]o Not T/O: permissive [13(b)]

ADDING A DEFENDANT (PERMISSIVE JOINDER FRCP 20)


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When plaintiff(s) want to sue another defendant Requirements [20(a)(2)]

o Same T/Oo Common issue of law or fact (there is always a common issue of law or fact)

Triggers a counterclaim from new defendant

o


DEFENDANT SUES EXISTING DEFENDANT (CROSSCLAIM FRCP 13(g))

Requirement: same T/O or same property [13(g)] Always permissive Generally does NOT destroy diversity because 1367 applies only to claims by plaintiffs

o Court could still decline supplemental jurisdiction under 1367(c) Triggers counterclaim from other defendant

o


PLAINTIFF SUES EXISTING PLAINTIFF (CROSSCLAIM FRCP 13(g))

Requirement: same T/O or same property [13(g)] Always permissive WARNING: if basis is diversity and this suit does not meet diversity requirements, you

cant add it [1367(b)] Triggers counterclaim from other plaintiff


DEFENDANT ADDS DEFENDANT (THIRD-PARTY PRACTICE FRCP 14)


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D1(acting as third-party plaintiff) can add a third-party defendant [14(a)] Always permissive Requirement

o TPD must be liable to TPP for all or part of the claim against it (shifts liability)! Not technically a T/O requirement (TPDs are usually insurance

companies) Triggers counterclaim from TPD [14(a)(2)(B)]

o

o Same T/O: compulsory [13(a)]

o Not T/O: permissive [13(b)]o Bonus permissive: against any other TPD [13(g)]o Bonus permissive: against another party who would be liable for all or part of any

claim against it [14(a)(5)]

o Bonus permissive: against original P [14(a)(2)(D)]

!

! Requirement: same T/O as original Ps suit against TPP (aka D1)! Triggers counterclaim from original P

o WARNING: if basis is diversity and this suit does not meetdiversity requirements, you cant add it [1367(b)]

o Same T/O: compulsory [13(a)]o

Not T/O: permissive [13(b)]

PLAINTIFF (DEFENDING AGAINST CLAIM) ADDS TPD (FRCP 14) Follow same rules as when D1(acting as TPP) adds TPD [14(b)] Allowed when a claim is asserted against the P (P brings in TPD who would be liable for

all or part of that claim against P) WARNING: if SMJ is diversity-based, this party must be diverse from


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ADDING ANOTHER CLAIM AGAINST A PARTY ALREADY IN THELAWSUIT (PERMISSIVE JOINDER FRCP 18)

Once an arrow is pointing in one direction, anyother claims may be brought in thatdirection

o NO T/O requiremento i.e. if D has counterclaim against P for breach of contract, then D can also join a

claim against P for a completely unrelated tort action WARNING: any claims joined by P must have SMJ basis

CLEANING UP A MESSY SITUATION Consolidation: if actions before the court involve a common question of law or fact, the

court may [Rule 42(a)]o Join for hearing or trial any or all matters at issue in the actionso Consolidate the actions; oro Issue any other orders to avoid unnecessary cost or delay

Separate trials [Rule 42(b)]

o For convenience, to avoid prejudice, or to expedite and economize, the court may! Order a separate trial for one or more separate issues, claims, crossclaims,

counterclaims, or third-party claims! Separate trial order must preserve any federal right to a jury trial

o Related: court may order protective measures (including separate trials) to protecta joined party from prejudice (also embarrassment, delay, or expense) [20(b)]

o

Related: court may sever any claim against a party (to prevent prejudice) [21] Court may, on motion or on its own, add a party [21] Misjoinder (including violations of diversity) is not grounds for dismissing an action

o Court may, on motion, or on its own, drop a party [21]

INTERVENTION (FRCP 24) Intervention is never compulsory (Martin) Intervention of right [24(a), Smuck, parents intervene in suit against school district]

o Decision of whether to allow should achieve these (potentially conflicting) goals! Efficiently resolve related issues in a single lawsuit! Prevent single lawsuit from becoming fruitlessly complex

o

Requirements: applicant for intervention must have! Interest (not a useful criterion)! Applicant would be impeded in protecting his interest by the ongoing

action! Applicants interest not protected by others (burden is on the party

opposing intervention to prove the adequacy of existing representation) Adequate representation test (Natural Resources Defense Council)


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HORIZONTAL CHOICE OF LAW

WHEN ATTACKING AN HCOL PROBLEM ON EXAM Ask is question substantive or procedural?

o Procedural: apply the law of theforum!

If you can argue it is procedural, then it is procedural (broader than inVCOL)

! Example of a tricky question: enforceability of forum selection clauses(probably procedural, apply law of forum state)

! Limitations periods are usually procedural (First and Second Restatement) EXCEPTION: if the statute of limitations is so closely tied the

cause of action that it is actually part of the cause of actiono Substantive: ask am I in a First Restatement state or a Second Restatement

state?! Then, use choice-of-law rules of the forum (see below)! Examples of substantive tort law: respondeat superior, guest statutes,

contributory/comparative negligence

TWO APPROACHES TO HCOL1. FIRST RESTATMENT (VESTED RIGHTS APPROACH) (RFC 337)

Only step: Where is the blood? testo Apply the law of the state in which the last eventnecessary to complete the tort

occurredo All issues are governed by the law of the state of the last event (Alabama RR,

applying MS law to tort where injury occurred in MS but other events happenedin AL)

! Do not split up issues within the case!

Example (from 2010 test): AL company manufactures defective tires inTX. Customer crashes in Mexico. The substantive law used (if TX is aFirst Restatement state) is Mexicos.

Policy analysis

o Advantages! Easy to apply

o Disadvantages! State with interest in regulating the conduct of corporations/citizens may

lose the ability to regulate that conduct! State loses some ability to prevent negligence within the state

2. THE SECOND RESTATEMENT (INTEREST ANALYSIS) (RSC 145)

Step #1: Divide up the issues of a case (Babcock)

o Different claims within a single case can be governed by laws of different states Step #2: Most significant relationship test (145)

o Apply to each issue, determining which state has most significant relationship toeach issue

o This will usually be the same as wheres the blood? but exceptions applylookto 145 and 6


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o Step #2a: Take into account (145)! Place of injury! Place of conduct leading to injury! Domicile of parties! Place where parties relationship is centered

o

Step #2b: And apply these HCOL principles (6)! Needs of interstate/international systems

Where would case be efficiently litigated Where are witnesses/parties/evidence?

! State interest (this is very difficult to measure, seeBabcock andNeumeier) States want their citizens to win States have interest in regulating conduct that occurs within their

borders! Protection of partys justified expectations! Predictability/certainty/uniformity of result! Ease of determination/application of law

Policy analysiso Advantages

! Allows states to regulate conduct that may lead to injuries

o Disadvantages! Creates a difficult-to-understand patchwork of laws

Could create a patchwork system that functions to enforceincompatible laws that create situation no one would vote for(Greiners workers comp hypo)

! Prevents states from controlling the levels of allowable risk within the

state! Inefficient: extremely complicated! Usually the wheres the blood test ends up applying anyway

Example:Babcocko When NY driver injures NY passenger while driving a NY car in Ontario

o NY law applies to negligence claimso But wrongful conduct claim would be governed by Ontario law (because Ontario

has strong enough interest in preventing wrongful conduct within the province)


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VERTICAL CHOICE OF LAW ERIE DOCTRINEWHAT IS LAW?

Fundamental question: how do we determine whether we apply state law or federal law in

diversity cases?

o Attempt to draw line between substantive law and procedural law!

If substantive, apply state law! If procedural, apply federal law

1652. State laws as rules of decision

o The laws of the several statesshall be regarded as rules of decision in civilactions [in federal courts]

! In Swiftthe laws of several states was interpreted to mean only thestatutes of statesfederal courts were to apply a transcendental generallaw in all other circumstances (this has since been overturned)

ERIE RATIONALES Metaphysical justification

o

There is no general federal common lawo Law is created by people/constituenciesit is not natural

! Law is created by a sovereign! It doesnt matter how states choose to make law (i.e. judge-made or

statutory)! All state law (decisional/common law and statutory law) is equally the

law of the state Statutory limit justification (1652)

o Laws of the several states means everythingthe state has chosen to be law:statutes, state common law, etc.

Constitutional limit: three different rationales

o

Federalism! Congress has no power to declare substantive rules of common law

applicable in a state Possible criticism: because Congress has the power to regulate

railroads under the Commerce Clause, why dont they have powerto create railroad-related tort law?

Possible criticism: courts, not Congress, make common lawo Separation of powers

! Courts would be essentially making up the law, which is a violation of theconstitutional role

! Courts making law encroaches on Congresss law-making powero

Equal protection! Taxicab case highlighted this: there were different remedies available for

in-state and out-of-state plaintiffs! Irrational/unfair to give different litigants access to different substantive

law systems within a single state Common law

o Need for vertical harmony (only one system of substantive law within a state) Common-sense justification


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o Federal courts just arent equipped to make wide-ranging common law

ERIE TESTS Basic goal of each: apply state substantive law and federal procedural law

o Try to apply the state substantive law (as perErie)

o

Try to apply the federal procedural law (as per FRCP) Dividing line between substance and procedure is really tricky On exam, unless screamingly obvious, this distinction does no good

o Screamingly obvious: paper size limits (procedure)o Screamingly obvious: time limit for filing a response (procedure)o Screamingly obvious: negligence test (substance)

Statute of limitations (from York)

o Use state SOL rules when doing so would effect the outcome of the caseo Somewhat easy because there is no federal SOL (just multi-factor tests)

On exam, apply the following

TEST 1: YORK(OUTCOME-DETERMINATIVE) Ask whether difference between federal law or state law would be outcome determinative

o If at the moment you are deciding the issue, applying either federal law or statelaw would create different outcomes (generally meaning a binary yes/nodismissal), apply state law

o Then, see which rationale applies (see below)

Oftentimes its easy (when binary)o Statute of limitations

Sometimes its not easywhat is outcome?o Class certificationwhether an individual is able to represent a class or can only

represent themselveso Degree/amount of damages

SEE WHICH RATIONALE APPLIES: depends on what you thinkEriewas based upon

o If based upon Federalism! This test applies if Congress is overstepping its role and interfering with

state common lawo If based upon Separation of Powers

! This test only applies if the court is somehow inventing Federal law forpurposes of this case

o If a prudential/commonsense concern! Only applies if the court is somehow inventing Federal common law

o

If Equal Protection concern! Only applies if parties are non-diverse (Multi-colored taxicab case)

TEST 2: MAJORITY INHANNA+ STEWART (SCALIA VERSION) Part 1

o 1A) Look for a valid and applicable constitutional provisionor federal statute! If there is one of these, use federal law! How to determine if valid and applicable?


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If constitutional provision, its automatically valid If federal statute, look to find some sort of constitutional basis that

allows Congress to pass it (note: wont construe statute narrowly,per Stewart)

o Possible costitutional bases: Article 32 (power to create

federal courts), Article 18 (necessary and proper clause)o 1B) If no constitutional provision or federal statute, look for FRCP

! FRCP must be valid and applicable in accordance with the Rules EnablingAct (must not expand, abridge, or modify a state substantive right)

Test: look to the FRCP in question and ask, Does it really regulateprocedure?

o Invalid if it alters the rules of decision by which the courtwill adjudicate rights

o Valid if it governs only the manner and means by which thelitigants rights are enforced

o DO NOT LOOK TO STATE STATUTEo

Note: it should be super difficult for any FRCP to not applyunder this test Part 2

o If no applicable constitutional provision, federal statute, or FRCPyou mustdecide if you are going to make up federal common law or apply state law

! To decide, use twin aims ofErie test (prevent forum shopping and

prevent inequitable administration of laws)! Almost all issues that make it here will promote forum shopping, as such,

you will use state law

Rationale: efficiency (ease of judicial administration)

o Allows courts to just make threshold determination that FRCP is valid! FRCP will then be valid vis--vis everystates laws

o

Prevents federal courts from having to guess how the states courts will interpretthe statute

TEST 3: HARLANS CONCURRENCE INHANNA Ask: would using federal, rather than state, law change primary human conduct (i.e.

would one of the parties change its pre-litigation conduct to gain an advantage)?o If yes, use the state lawo If only a litigator would care about the distinction, then apply the federal law

! Note: a savvy business mightchange its behavior based upon things theaverage person wouldnt change their behavior on, so watch out

Rationale: federalismo Only really makes sense if you believe states should be the regulators of conducto Rationale is much weaker now that federal government has huge powers

TEST 4: GINSBURG IN SHADY GROVE(GINSBURGSHANNAMAJORITY) Important precedent: Walker interpret narrowly (when FRCP violates REA, lie and say

the FRCP doesnt apply) Part 1


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o 1A) Look for a valid and applicable constitutional provisionor federal statute! If there is one of these, use federal law! How to determine if valid and applicable?

If constitutional provision, its automatically valid If federal statute, look to find some sort of constitutional basis that

allows Congress to pass it (if it conflicts with state substantive law,try to construe it narrowly to avoid direct collision)o Possible constitutional bases: Article 32 (power to create

federal courts), Article 18 (necessary and proper clause)o 1B) If no constitutional provision or federal statute, look for FRCP (NB: per 2010

exam, the accommodation of interests approach would also apply to federalcommon law [forum non conveniens]on test, apply accommodation of interestsapproach to whatever you have, be it statute, FRCP, or federal common law)

! FRCP must be valid and applicable in accordance with the Rules EnablingAct (must not expand, abridge, or modify a state substantive right)

Test: interpret with sensitivity to substantive state

policies/interestsif there is a conflict between state law andFRCP, try to find a way to narrowly interpret FRCP If you succeed in narrowly construing, apply state law

Part 2 (see Scalia test, twin aims ofErie) Rationale

o Federalismneed to preserve state lawso Fairnesswouldnt be fair to allow a sneak-attack federal rule to make party

liable


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INITIAL PLEADINGS AND MOTIONSPLEADING STANDARDS

Code pleading

o Must put in complaint facts that, if proven, would be sufficient to grant relief

o Justifications!

Allows court to decide if complaint is legally viable! Court will be able to use the complaint itself to determine whether it can

be dismissed! Enable the opposing party to adequately respond

Notice pleading

o This is what federal courts had before Twombly/Iqbalo Point of complaint is merely to put defendant on noticeas to

! Nature of the claim! General facts/legal theory! Not too many details necessary

o Justifications

!

Permit discovery, exchange of information! Wait to see if trial is warranted until afterdiscovery

o Problems! In certain cases, discovery process is extremely expensive and time-

consuming! Discovery can tie up key decision-makers (e.g. John Ashcroft)

Plausibility standard (Twiqbal)

o This is code pleading, essentially, but courts call it notice pleading

o How to apply (i.e. figure out whether complaint is sufficient)! Cross out all conclusory allegations and formulaic recitations

This is difficult

!

Assume the truth of the factual allegations in the complaint! Decide: do the remaining statements nudge the complaint across the line

from possible to plausible? This requires you to look verycarefully at what the substantive law

requireso Problem: court is essentially overruling FRCP 8 and the Forms (particularly Form

11)

o Problem: direct contradiction of Swierkiewicz holding on pleading indiscrimination cases

! Swierkiewicz: pleading only needs to give respondent fair notice of whatthe petitioners claims are, the grounds upon which they rest, and then

state a claim upon which relief could be granted

Case Preliminary facts Ultimate fact (aka formulaic

recitation of elements of cause of

action? Aka legal conclusion?)

Swierkiewicz

P forced out

P replaced by person of different

national origin

P has more experience

National origin discrimination


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Bell Atlantic v. Twombly Parallel conduct

Plus factors

Agreement

Iqbal

Muslim men

Harsh (unnecessary) detention

Discrimination

State slip & fall case

Existence of the puddle

Company knows about puddle

Company does not clean uppuddle

Negligence

MOTION TO DISMISSFRCP 12. Defenses

12(b) How to Present Defenses. The following defenses may be asserted by motion (notpleading):

(1)Lack of SMJ(2)Lack of personal jurisdiction(3)Improper venue(4)Insufficient process

(5)

Insufficient service of process(6)

Failure to state a claim upon which relief can be granted

(7)Failure to join a party under Rule 19o A motion asserting any of these defenses must be made beforepleading/answer. If

pleading does not require responsive pleading, any defense may be asserted at trial.o 12(b)(6) is correspondent to 8(a)(2)

o 8(a)(2) requires plaintiff plead a short and plain statement of the claimshowing that the pleader is entitled to relief

o TwomblyandIqbalare emphasizing the showingentitle[ment] to reliefelement of FRCP 8(a)(2)

Policy justifications for motion to dismisso Efficiency (dont need to waste time on trial when we know outcome)o

Problem: finding right balance! Too loose of restrictions: may allow too many non-meritorious cases to go

to trial! Too rigid of restrictions: may prevent meritorious cases from reaching trial

OTHER MOTIONS ATTACKING THE PLEADINGS 12 (c) Motion for Judgment on the Pleadings. After pleadings are closedbut early

enough not to delay trial

o This allows defendant to file a post-answer motion for dismissalo

Essentially a post-answer 12(b)(6) 12(f)

o Allows court sua sponte and plaintiff by motion to strike insufficient defense orany irrelevant materials from a pleading

ANSWERS FRCP 8(b) (Denials)


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o Defendants often add all-inclusive paragraph denying all averments unlessotherwise admitted

o FRCP discourages general denialso Denials must be made in good faith

o General denials must deny everythingin the complainto

Courts may treat denials or lack of knowledge denials as admittances if notmade in good faith

PRELIMINARY INJUNCTIONS What is a preliminary injunction?

o Movant asks the court for relief before movant proves entitlement for reliefo Timing: early in the case, generally before full discovery

Requirements (in 5thcircuit you must meet ALL of these, otherwise its a balance)1. Likelihood of success on the merits

o Merits of the underlying fact patterno Alsounlikely to succeed if movant

!

Lacks SMJ on nonmovant! Lack PJ on nonmovant! Lack venue on nonmovant! Uses wrong HCOL on nonmovant

2. Irreparable harm

o Cannot be remedied by getting money later ono Remember: we think almost anything can be remedied by getting money later on

o Classic instances of irreparable harm! Government cannot be sued (sovereign immunity) so no future damages

would be possible (Thane-Coat)! Damage to present business (Thane-Coat)!

Lost future business (very difficult to prove/quantifysometimesconsidered irreparable because it will not be provable at future suit)(Thane-Coat)

! Damage to reputation (courts may be skeptical about this) (ALK, movietheatre case)

3. Balance of the Equities

o Who would be harmed more?! Balance harm to D if preliminary injunction issues AGAINST harm to P is

preliminary injunction does not issueo FDA drug trial case (Amgen): world would be harmed more by granting the

injunction

4.

Public interesto Example FDA drug trial case (Amgen): granting preliminary injunction would

make drug makers afraid to make new drugs


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PROCEDURAL DUE PROCESSADEQUATE NOTICE

Constitution establishes a floor for notice and opportunity to be heard

o Statutes laying out notice procedures must be above that flooro Plaintiffs must follow statutes, even if they are more stringent than the

constitutional floor Notice must be reasonably calculatedto actually reach interested parties (Mullane)

o If P knows the identity and address of an interested party, P must mail notice tothat interested party (Mullane)

o Eviction notices in public housing must be made by mail (not posted on tenantsdoors (Greene v. Lindsey)

o Last known address is good enough when defendant failed to stop after trafficaccident (Dobkin v. Chapman)

o What if original attempt at notice fails? You may be required to take additionalsteps

! If notice via certified mail fails, P must attempt notice via regular mail

(Jones v. Flowers)o Changing social circumstances matter (email, certified mail, etc.)

Number of days between giving notice and court appearance dateo Must not be too quickWar Eagle found 7 days notice insufficient

Content of noticeo Theoretically must give fair notice of proceedings (but really arent

comprehensible to lay people)o Must inform defendant of appearance info and legal rights (Aguchak)

PROCEDURAL DUE PROCESS PROPERTY INTERESTS Giving people an opportunity to protect their property rights

o

Old property rights: real estate, wage garnishment! We think they are important because they allow us to be functioning

citizens in society! Need more than merely P filing to deprive D of property (Doehr)

o New property rights: government benefits! Also required to allow us to function in society! Must give welfare recipient some kind of hearing before terminating

benefits (Goldberg) Three-part test: Hearing required BEFORE the deprivation of a property (or property)

interest by looking to: (Mathews test)

o Private interest that will be affected by the official actiono

Risk of erroneous deprivation of that interest through the current procedures, andthe probably value of additional/new procedural safeguards

o Government interest, including the function involved and the fiscal andadministrative burdens that the additional/new procedural requirements wouldentail

o Doehrsuggests 4thprong: interest of party seeking prejudgment remedy

Grounding constitutional protectionso 14

thAmendment due process clause (for state-law claims)


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o 5thAmendment due process clause (for federal-law claims)

Factors affecting due process

NEW PROPERTY BOTH OLD PROPERTYAmount of need

Greater need, more process

needed (Goldberg, welfare) Less urgent need, less process

needed (Mathews, disability)

Nature of proof

Documentary: less process

needed (Shaumyan) Medical: less process needed

(Mathews)

Posting a bond (Doehrplurality)

Makes P think more about filing

in the first place Protects D in case P erroneously

deprives him of property

Decision maker States interest in protecting

monopoly on legitimate use of

forcemay lead to insistence uponhaving more process (Doehr)

Information available to decision

maker

Hearing from D If D has opportunity to make a

written argument beforedeprivation: hearing less

necessaryBurden of proof

When seizure is effected

Burden of going forward to real

adjudication

If greater burden, more likely to

use less process

General note: remember the Turner v. Rogerscourts faith in forums to solve due process concerns

PROCEDURAL DUE PROCESS LIBERTY INTERESTS Presumption is that no lawyer will be provided unless there is a physical deprivation

(Lassiter)

States may be required some sort of representation (but may not be lawyer) (Vitek)o This is rare, however

Irreducible minimum when due process is required (Vitek, for transfer of prisoners tomental institutions)

o Hearing

o Opportunity for state to produce evidenceo Opportunity for defendant to produce evidenceo Independent decision makero Written explanation of decision

o Some representation provided to defendant (not necessarily a lawyer)o (Not required: jury, appeal process)

Look toMathewstest when determining what is required Policies being reinforced with due process requirements

o Search for truth (giving people representation may help this)o Convincing the public of the rule of law (this is important for process)


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SUMMARY JUDGMENT FRCP 56: Summary judgment Policy justifications for summary judgment

o Efficiency (dont need to waste time on trial when we know outcome)o Problem: finding right balance

!

Too loose of restrictions: may allow too many non-meritorious cases to goto trial

! Too rigid of restrictions: may prevent meritorious cases from reaching trial

BURDEN SHIFTING GENERAL SCHEME Burden of production or persuasion (dont say burden of proof)

o Tells us who loses an issue if there is no evidence on that issue Rules for summary judgment (from Brennans dissent in Celotex)

1. If movant would have burden (of persuasion) on an issue at trial (plaintiff ordefendant-with-affirmative-defense filing for summary judgment)a. Movant must produce sufficient evidence, which, if unrebutted, will compel a

reasonable trier of fact to find in movants favor (burden of production)i. produce sufficient evidence: depositions, affidavits, documents

b. If movant meets that burden, the burden (of production) shifts to nonmovant.Nonmovant must produce sufficient evidence to create a genuine issue of materialfact

c. If nonmovant meets that burden, burden (of persuasion) shifts to movant toconvince court that nonmovants evidence is insufficient (with additionalevidence or legal argument as to why nonmovants evidence does not creategenuine issue of material fact)

2. If movant would not have burden on an issue at trial (defendant or plaintiff-fighting-affirmative-defense filing for summary judgment)

a.

Option 1i. Movant produces evidence that affirmatively disproves nonmovants

claimevidence that is sufficient, if rebutted, to compel reasonable trierof fact to find in the movants failure

ii. Then, same procedure as 1(b) and 1(c)b. Option 2

i. Movant produces evidence to show that nonmovant lacks the evidence toprove its claimproducing an analysis that is sufficient, if rebutted, tocompel reasonable trier of fact to find in the movants failure

1. How would you do this as a lawyer? Pretend you are thenonmovants lawyer; and demonstrate to the court that even

making nonmovants best case, this would be insufficient to provenonmovants claim

ii. Nonmovant must then produce evidence sufficient to create a genuineissue of material fact (sufficient to allowa rational trier of fact to find inits favor)

Evaluation of evidence at summary judgment

o At summary judgment, facts must be viewed in light most favorable tononmoving party ONLY IF there is a genuine dispute as to those facts


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! Genuine dispute means a rational trier of fact could find for thenonmoving party

BURDEN SHIFTING EMPLOYMENT DISCRIMINATION SCHEME

(REEVES)

1.

P must prove primafaciecase: P-member of class (failure to hire)a. Appliedb. Not selectedc. Person who wasselected is not a member of the classd. A little something else(?)

2. Burden shifts to Defendant to produce evidence of legitimate, non-discriminatoryreason

3. Burden shifts to P to prove by preponderance of the evidence that Ds legitimatereasons were not its true reasons

Why this different (more P-friendly) framework?

o Context of statutes passagethere was a whole lot of discrimination

o

Need to force Ds to speak so that court knows what its fighting over


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VOLUNTARY DISMISSAL FRCP 41(a)

o P may voluntarily dismiss before D has filed response OR if all parties agree andfew resources have been expended by court on lawsuit

! Dismissal will be without prejudice

!

Generally leaves parties in the same position they were in before suit What happens when prolonged discovery has taken place? (McCants)

o When to allow voluntary dismissal?! Any time, UNLESS defendant will suffer clear legal prejudice (mere

prospect of another lawsuit is not clear legal prejudice)! General rule: any point before trial (When is trial? Some courts have

held it is before submission of the case to jury/judge for decision)o How to grant voluntary dismissal

! If D has been put to considerable expense, make P reimburse D for a

portion of his expenses


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ALLOCATION OF POWER: JUDGE VERSUS JURY

WHAT ARE JUDGES GOOD AT? WHAT ARE JURIES GOOD AT?

Judges are good at

o Lawo

Documents (Markman) Juries are good at

o Determining credibility

o Applying/determining community standards (i.e. obscenity, negligence)! Broader representation of community! Judges are more isolated, educated, older, white, male

SEVENTH AMENDMENT RIGHT TO JURY TRIAL (LAW/EQUITY) Note: Seventh Amendment does not apply to the states Preserves the right to a jury trial

o Jury right to jury trial exists only on the historically law side (i.e. not in equity

disputes)o Frozen in place as to where trial existed in 1790

Test: determining whether Seventh Amendment applies to case at hando If its a common law cause of action that existed in 1790, look directly to the kind

of remedy that P seeks! If P seeks equitable remedy, no jury trial!

If P seeks legal remedy, yes jury trial

o If cause of action is newly statute-created post-1790, do TWO-PART historicalanalogue inquiry (Chauffers v. Terry)

1.

Analogize statutory action to 1790 law/equity actionsa. Divide the case by issue, and apply the test to each individual

issueb. The existence of one equitable issue does not push the entire

case into the equitable common (nor vice-versa)2. Examine remedy and determine whether it is legal or equitable (this is

the more important and more heavily weighted inquiry)a. Legal remedies

i. Damages (compensatory and punitive)ii. Ejectment (order to get off real property...feels like an

injunction, but it isnt)b. Equitable remedies

i. Restitution (order to return moneyfeels like damages, but

it isnt)ii. Injunction

Exceptionto Seventh Amendment: public rights exception (Atlas Roofing)o When government sues to enforce statute-created rights (i.e. acts as a regulator),

there is no right to a jury trial

o MUST be a public right at stake: Congress cannot eschew jury trial requirementby sending cases to a special tribunal (Granfinanciera, finding right to jury trial inbankruptcy actions)


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Jury trial must be demanded (FRCP 38 & 39)o Amendments to pleadings cannot revive a right to jury trial that has been waived

! Exception: if new claim involves events that occurred after the originalfiling

o Courts do have discretion to permit jury trial despite a partys failure to request in

a timely manner (14 days after last pleading to the issue is served)! What do courts consider in discretionary permissions?

Scheduling of court parties (Khalil) Whether issues are best decided by a jury (Batteast) Degree of prejudice faced by not having jury (Batteast) Length of delay in requesting jury (Batteast) Reason for requesting partys tardiness in requesting (Batteast)

o If jury trial right exists alongside equitable claims! If district court can schedule a case so that it can preserve a jury trial, it

MUST schedule the case that way (Beacon Theatres) Example (P claims for injunction, D counterclaims for

damages)musto 1) temporarily enjoin Do 2) give D full jury trialo 3) grant P permanent injunction if appropriate

Party can waive a jury righto Through contract or arbitration agreemento Can happen before trial or before dispute ever ariseso Requires voluntary, intentional, and knowing decision (this is loosely enforced)

DURING TRIAL WHO DECIDES AN ISSUE? (FACT/LAW) Test: determining who decides an issue, judge or jury (Markman)

o

Precedent! Follow precedent

o Interpretive skills of judge versus jury! Writings are better suited to be determined by judge

o Ensure uniformity in treatment (inMarkman, of a given patent)! Judges write down decisions (juries cannot do that)! This increases certainty in the marketplace

JURY INSTRUCTIONS Basic procedure

o Parties submit proposed jury instructions to judge!

Judge picks the good ones and uses themo Alternatively, most courts have model instructions that were approved in the

prior case law (approved on appeal) Challenging an instruction

o If you didnt submit the instruction you think the court should have used, you aregenerally unable to argue that instruction should have been used on appeal(Kennedy)


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o If you dont object to an instruction the court chooses, you are generally unable tochallenge the courts instruction on appeal

o Even if a party submits no instructions, the court must give broadly appropriateinstructions (Houlihan, notes case)

o Upon appellate review, jury instructions are subject to a harmless error analysis

(i.e. no reversal/remand/new trial unless its reasonably probable they changedoutcome) (Kennedy)

FINDINGS AND CONCLUSIONS IN NONJURY CASES Rule 52(a)

o Judge must find facts specially and state his conclusions of law with clarityo Must be sufficient to indicate the bases of his decision

o Findings of fact, whether based upon oral or other evidence, will not be set asideunless clearly erroneous

o Judges should formulate conclusions BEFORE announcing decision (Roberts v.Ross)

Policy reasonso Aid appellate court, by giving clear understanding of basis of decisiono Make definite just what was decided, for purposes of preclusion and estoppel

o Forces trial court be careful in ascertaining facts (better decisions)

JAMOL (FRCP 50) A jury verdict is not final until a judge enters a judgment

Rule 50 Judge must say no rational jury could find for the nonmovant in order to grant

o If party moves before jury renders verdict: directed verdicto If party moves after jury renders verdict: JNOV (judgment non obstante veridcto)

Procedureo Judges generally do not grant or deny Rule 50 JAMOL made before the jury

verdictonly hear it and delay decision on the motionthen movant may renewmotion after jury verdict

! Parties especially defendants should always make a JAMOL beforeverdict

o If party fails to make a JMOL before verdict, then party cannot make a JMOLafter verdict

! (NB: per 2011 exam, this requirement might possibly be read loosely, i.e.allowing a verbal motion for preclusion to count, depending upon thejudges particularities)

!

Why? So judge may decide to allow plaintiff to put on more evidence inorder to sufficiently prove his case

o Why do we have this procedure?! Sometimes one party accidentally fills in necessary evidence for the other

sides case! Efficiency: limits situations in which there will need to be a retrial upon

appeal


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NEW TRIAL (FRCP 59) Aetna Casualty & Surety Co. v. Yeatts(1112) Rule 59: New Trial

o Judge may grant a partys motion for a new trial on the ground that the verdict isagainst the great weight of the evidence

!

Or based upon false evidence! Or will result in a miscarriage of justice

o No need that jurys finding be irrationalo Greiner: no good rationale for this doctrine

! Best reason: if party can persuade judge post-verdict that he made an errorthat will be reversed on appeal, allows the parties to avoid appeal and gostraight to new trial

Conditional and partial new trials (Fisch v. Manger)o Remittitur

! Universally accepted! Court issues order denying Ds motion for a new trial on condition that P

consent to specified reduction of jury awardo Additur

! Unconstitutional in the federal courts per Seventh Amendmentbut somestate courts allow it

! Court issues order denying Ps motion for a new trial on condition that Dconsent to a specified increase in jury award

o Court is supposed to set a reasonable number for reduction/increase in jury award

o Policy justifications! Avoids second trial! Serves substantial justice

Unitherm (Handout)o

If you do not ask for a new trial before the trial judge, you cannot ask for one onappealo By Rule 6(b)(2), trial court cannot grant JMOL or new trial past the deadlines to

move (28 days)complete rigidity! Why so rigid? Dont want to waste timepracticality and finality

SETTING ASIDE JUDGMENT ON GROUNDS DISCOVERED AFTER ITWAS RENDERED (FRCP 60)

Rule 60(b) Applied very rarely Will not apply to allow a party to take advantage of post-judgment higher-court decision

that would have entitled that party to win (Title) Policy justifications

o Limited resourceso Economic efficiencyo Perception of fairness

o Perception of finality DOES apply to

o Mistake (1 year limit)


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o Excusable neglect (1 year limit)! Broad, can apply to movants negligent failure to meet filing deadline

(Pioneer)! Factors for deciding excusableness (Pioneer)

Danger of prejudice to nonmovant

Length of delay and its impact on proceedings Reason for delay Movants good faith

o Newly discovered evidence (1 year limit)! Must meet following factors to grant new trial (ACLU v. DOD, notes case)

Newly discovered evidence is of facts that existed at time of priordecision

Movant was excusably ignorant of those facts despite using duediligence to learn about them

Newly discovered evidence is admissible and will probably changeoutcome

Newly discovered evidence is not merely cumulative of evidencealready offeredo Fraud (1 year limit)

! One test (Herring, notes case) Intentional act By an officer of the court Directed at the court itself Which in fact deceives the court

! Judgment can be set aside for perjury (Peacock, notes case)

o Other reasons deemed appropriate (no time limit)! Courts have found errors ostensibly falling in the categories special and

therefore able to come in here (with no time bar)


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HARMLESS ERROR If there is not reasonable probability that error in trial (i.e. improper jury instruction,

improperly admitted evidence) caused a difference in verdictthen harmless errorapplies, and the error cannot be challenged on appeal (Kennedy)


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APPELLATE JURISDICTION

Note: in appellate jurisdiction context ONLY, claim= set of facts + theory of relief Note: defects in appellate jurisdiction can be raised at any time, by court of party (like

defects in SMJ) (Liberty Mutual)

BASES OF APPELLATE JURISDICTION1. Final decision [1291]

a. Final judgment (i.e. judgment on all claims of an entirecase)b. Rule 54(b) (judgment on some but not all claims of a case)c. Collateral order exception (treated like a 1291 final decision)

2. Injunction [1292(a)(1)]3. Interlocutory decisions (double discretion) [1292(b)]4. Class-action certification [Rule 23(f)]5. Mandamus (only in extraordinary cases, but disregard other frameworks)

FINAL DECISION (GARDEN-VARIETY FINAL JUDGMENT) Final judgments of district courts (1291) Appealable to court of appeals 30 day time limit (from issue of final decision by district court) Policy justifications for final order rule

o Pros: efficiency (smoother/quicker trial operations)!

Most trial court rulings are correct, making appeals inefficient! Most incorrect trial rulings will not affect the final judgment

o Con: potential inefficiencies!

Erroneous ruling can taint all following events! Delayed appeals require more full retrials

o

Con: unfairness! If retrial becomes required later, it may not be as just as it could be

Memories lapse Loss of actual evidence Opportunities to sustain truth by impeachment diminished

! Retrial produces anxiety

o Con: areas of law must develop without appellate guidance (i.e. discovery)o Con: publics demand for justice wants the highest authority to hear cases

FINAL DECISION (RULE 54(b) JUDGMENT) In cases with multiple claims or involving multiple parties [FRCP 54(b)]

o

Default: courts should resolve all claims for relief at the same time! *** (in appellate jurisdiction context) Claim = set of facts + theory of

relief (Liberty Mutual)! Note: District court does notissue a final order when it merely issues a

declaratory judgment and does not rule on any of Ps theories of relief(Liberty Mutual)

Exception: Court can determine there is no just reason for delay in issuing a ruling on oneor more claims


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o Claims must not be so interrelated that they should only be appealed as a singleunit (Curtiss-Wright)

! Why? Avoid piecemeal appealso Claims must be truly separable (Curtiss-Wright)

o Court must make an expressdetermination that there is no reason for delay and

expresslyenter a final judgment on the individual claim(s) (Sears)! Why? Alert adversely affected party that appeal clock is ticking! 30 day deadline to appeal that claim

Scenario: D dismisses one of Ps two claims by 12(b)(6)

o P will want judge to issue 54(b) judgment on that claim, so he can immediatelyappeal and keep his case together (reducing costs)

o D will want judge to NOT issue 54(b) judgment on that claim, making P waituntil final judgment on ALL claims to appeal

! Delay is almost always in Ds favor (strategic incentivesettlementbecomes less valuable as time passes)

! D can also hope to avoid discovery costs on that dismissed claim

COLLATERAL ORDER EXCEPTION Functions like a 1291 final order for procedural purposes Test: four elements must be satisfied

o Order must be unable to appealed latero Order must have no bearing on the merits of the caseo Court must definitively rule on the order at issueo Must not be a discretionary issue of the collateral order (i.e. you cannot appeal the

amountof a security bond) Apples to court decisions that finally determine claimed rights and are not an ingredient

of the cause of action (Cohen)o

Examples! Requirement to post security bond (Cohen)

Why? After final judgment is entered on the merits of the case, itwould be actually impossible for the plaintiff to buy a bond

! Colorado Riverstay Why? Because once state court case comes to judgment, P will be

unable to appeal because of claim preclusion! Criminal contempt order for failure to obey court order (US v. Nixon)

o Non-examples (when court denied a collateral order appeal) (p. 1173)! Disclosure orders adverse to attorney-client privilege! Order disqualifying partys attorney!

Ruling on partys immunity from civil process! Ruling on whether venue contract required case to be filed in foreign

country! Ruling on partys claim of immunity from suit under settlement agreement! Order imposing sanctions for discovery violations

INJUCTIONS


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Always immediately appealable: all injunctiveorders made/denied/modified by districtcourts [1292(a)(1)]

INTERLOCUTORY DECISIONS (DOUBLE DISCRETION) Discretionary review: other motions (strict requirements) [1292(b)]

o

District judge has made an ordinarily non-appealable order, and states in writingwhen granting the order that the order:

! Involves a controlling issue of law! There aresubstantial grounds for differences of opinion! And immediate appeal of the order would advance the ultimate resolution

of the caseo Once above requirements are met: Court of Appeals has discretionaryreview

! Rules triggered Party must apply for appeal within 10 days of order Application for appeal of motion ordinarily will not stay

proceedings!

When will Court of Appeals denydiscretionary review (Atlantic CityElectric Co., court denies review of district courts rejection of a discoveryinterrogatory)?

Efficiencyo Prevent too much litigating of similar issueso Adversely affected party will have opportunity to appeal if

an adverse final judgment is issued against them

o Ultimate disposition of the case would be delayed (ratherthan advanced) by allowing appeal

No major fairness concernso D retains right to raise this defense if appellate court later

determines district court was in error Called double discretion because both trial and appellate judge has discretion

CLASS CERTIFICATION GRANTS OR DENIALS Immediately appealable [Rule 23(f)]

WRIT OF MANDAMUS Supervisory order from court of appeals ordering district court to fulfill its legal

obligation (do something/stop doing something the court of appeals wants the trial courtto do/stop doing)

Three-part test (Cheney)

o

Person asking for mandamus must be about to suffer some harm that couldnt beundone later (i.e. no other adequate means to attain the relief sought)

o Right to relief must be clear and indisputable (movant bears this burden)o Issuing court must be satisfied that the writ is appropriate under the circumstances

Examples:o Denial of request for jury trial

o Judge improperly appoints a master to hear a difficult case (La Buy)o Order to district court to order restitution (Amy Unknown)


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Policyo Pros: both efficiency and fairness rationales

! Prevent practicing posing severe threats to the proper functioning of thejudicial process

! Prevent usurpation of judicial power!

Prevent clear abuse of judicial processo Cons: awkwardtechnically a lawsuit against the district court judge


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PRECLUSIONCLAIM PRECLUSION

P required to assert (in the complaint) all matters arising out of the same incident (and

against the same party) in one lawsuit

o Operates even if P only asks for declaratory judgment and doesnt assert a theory

of reliefo Only operates against Ps

Three elements required for claim preclusion (write each down and walk through them,one-by-one)

1. Same claim

Yes: if based upon common nucleus of operative fact, no matter how diverseor prolific the claims themselves might be (Gonzalez)

This is determined pragmatically (RSJ 24)

o Convenient for trying together

o Conforms to parties expectations or business usageo Remember: each bond and coupon (also debt, generally) is a separate

claim! Why? We want to promote the market for bonds and coupons

2. Same party

Yes: substantial control(Gonzalez)

o Power to call the shots over litigation decisions in Lawsuit #1o Examples

! Insurer in #2 who assumed insureds defense in #1! Sole shareholder in #2 whose company sued in #1

o Non-examples! Party in #2 retains same attorney as party in #1! Party in #2 financed litigation in #1

!

Party in #2 testified as a nonparty witness in #1 Yes: virtual representation(Gonzalez)

o Threshold requirements: same identity of interestso If same identity of interests, it becomes a balancing of the equities

testfactors:! Actual or constructive notice of the earlier litigation?! Party in Lawsuit #2 gave actual or implied consent to be bound

by results of Lawsuit #1?! Party in Lawsuit #2 is closely linked to party in Lawsuit #1 by

business or familial relationship? Yes: privity

o

Person acquires an interest in some sort of property that has alreadybeen the subject of a lawsuit (i.e. through inheritance)

! Example: debt-holder #1 collects on debt and then sells theright to collect on debt to debt-holder #2debt-holder #2 isclaim precluded from collecting on the debt

3. Final judgment on the merits


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On the merits is deceptivereally its shorthand for saying somethinghappened in Lawsuit #1 such that we dont want to deal again with that claim(aka transaction or occurrence/common nucleus of operative fact)

Yes: dismissed via summary judgment, JMOL Yes: final judgment is entered (i.e. goes to final judgment and someone wins

or loses)o When case goes to judgment in a trial court, then both claim and issue

preclusion attach, even if claim or issue is still on appeal Yes: settlement Yes: dismissal for non-compliance with discovery procedures No: dismissal for lack of SMJ, IPJ, venue, misjoinder No: voluntary dismissal without prejudice Less preclusive: if court says ruling is without prejudice

Acceleration clauseso If acceleration clause has been triggered, P must sue on entire amount due or will

be claim precluded (Jones v. Morris Plan Bank,car installment payments)!

When entire balance becomes due and bank successfully sues for onemonths payment, bank will be claim precluded from future attempt tocollect entire balance

o If court can find a way to say acceleration clause hasnt been triggered, theymight (Aiglon)

Continuing/renewed conducto If conduct that is subject of Lawsuit #1 continues after judgment, claim preclusion

will not prevent a second lawsuit Policies

o Efficiency

o Fairness! Prevent harassment of D!

Prevent P from fishing for sympathetic jury! Prevent inconsistent results

o Finality

ISSUE PRECLUSION (AKA COLLATERAL ESTOPPEL) Runs against both Ps and Ds Order of Lawsuit #1 and Lawsuit #2 determined by when judgment is entered, not when

litigation was initiated Required elements (3 or 4 depending on where you are)

1. Same issue

Must be CERTAIN, either upon the face of the record or shown by extrinsicevidence, that theprecisequestion was raised and determined in former suit(Russell, no issue preclusion when unclear from Lawsuit #1 which of patentstwo processes was basis of decision)

Note: we manipulate this requirement to further the policy decisions of ourchoosing

2. Actually litigated NO: Unchallenged defense


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o P is not issue precluded from fighting that defense in a subsequentsuitthe issue was not actually litigated (Cromwell)

MAYBE: Default judgmento RFJ: default judgment triggers issue preclusion

o RSJ: default judgment does not trigger issue preclusion (because not

actually litigated)o Penalty default judgment (for deliberate refusal to participate in

discovery) triggered issue preclusion (In Re Bush)! Justification: party had substantially participated and had

full and fair opportunity to defend on the merits NO: Issue in the pleadings

o Not issue precluded (though Vestal thinks it should be to advanceefficiency goal)

MAYBE: Guilty plea (Lawsuit #1 criminal, Lawsuit #2 civil)

o Not issue precluded (RSJ 85)o Though will be issue if D has evidentiary hearing to attempt to

suppress the admission (Allen)

Policy pro: fairness to parties (doesnt make sense for party to mount fulldefense when sued for small amount of money or in inconvenient forum),efficiency (encourages compromises/settlements because not every issue willhave to be battled over due to its future preclusive effect)

Policy con: efficiency (requires more trials, fails to encourage people to raiseissues)

3. Necessary to the decision Multiple ways of looking at thissome overlap, some dont (Greiner: dont

get t