Jennifer Park Civ Pro Outline 2010

Civil Procedure Outline

Procedural Sources of Law Constitutional provisions Federal statutory law Federal rules of civil procedures (FRCP)

o Originates from SC/judicial conferenceo Permitted under 28 USC 2072 – Rules Enabling Act – allows SC to promulgate rules of procedure for federal

courts. Local rules/standing orders of the court

I. PleadingsA. Notice PleadingPurpose: to focus court’s attention on what is actually in dispute

Rule 4: Summons 4c1 – Summons is served w/ a copy of the complaint; 4c2 – anyone over 18 years of age who is not a party can serve

it. 4d: Waiver of Service

o 4d1 – Waiver of service of summons does NOT thereby waive any objection to the venue or personal jurisdiction

o 4d2 -- has a duty to avoid unnecessary costs of serving the summons. s can notify them (officially in writing) & ask to waive service.

If fails to comply w/ request for waiver, ct can impose fees or serving unless good cause is shown.o 4d3 – if timely returns waiver before being served, he has 60 days after request for waiver was sent to reply

to the complaint (90 if outside US) 4e-g: Service in US, foreign country, on incompetents/infants 4h: Service on corporations 4k: Territorial Limits for Effective Service

o 4k1: Service of a summons is effective to establish jurisdiction over the person of a (A) who could be subjected to the jurisdiction of a [state trial court] in the state in which the district

ct is located Basically – federal ct PJ should be same as state PJ of the state they’re in

o 4k2: If the exercise of the jurisdiction is consistent with the Constitution/US law, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish PJ over the person of any who is not subject to the jurisdiction of the cts of general J of any state.

To invoke 4k2: must make prima facie case for applicability. Fed law claim; PJ not available via federal statute; ’s contacts with US as a whole are sufficient for MC w/ the US; and according to current info, not subject to suit in the cts of Gen J of any state.

Burden-shifting here via case law – if doesn’t like this, he has to name a state where it CAN proceed.

4m: Timing – summons and complaint must be served on within 120 days of filing the complaint, or the action may be dismissed (if fails to show good cause for the delay).

Rule 8a: Claims for Relief Requires “short and plain statement” of court’s jurisdiction, “short and plain statement of claim (facts) showing

pleader is entitled to relief,” and “demand for judgment for relief.” If we set too high a standard of pleading, we throw out a lot of valid cases that need discovery to establish those facts.

But there must be enough detail to give “fair notice.”

Key Cases: The precedent for “short/plain only” is there, but federal courts do carve out exceptions. Conley v. Gibson (SC, 1957) – Union tried to claim a 12b6 violation because of not enough “specific facts.” SC says

Rule 8(a)’s “short and plain statement of facts” standard means what it says. SC also says 12b6 doesn’t apply unless “beyond doubt that plaintiff can prove no set of facts in support of claim that would entitle him to relief.”

Leatherman v. Tarrant (SC, 1992) – Upholds Conley. Federal courts may not apply “heightened pleading standards” except under 9b (fraud/mistake) or via amendment of Federal Rules.

Swierkiewicz v. Sorema (SC, 2002) – Upholds Conley line. TC said Sw. didn’t meet pleading standard of facts -> prima facie discrimination case. SC says that’s not necessary – 8a applies.

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Dura Pharmaceuticals v. Broudo (SC, 2005) – Upholds Conley line but distinguishes details of this case (loss causation alleged, but they failed to properly allege an element – economic loss – which doesn’t give Dura “fair notice”). 12b6 stands here because, when there are elements to a cause of action, you have to properly allege all of them. Class action is a big issue here on whether what they alleged counts as “loss,” since no common experience.

o Loss causation element wasn’t discussed specifically enough.o PSLRA doesn’t apply here, nor Rule 9. Sounds like there should be some heightened pleading standard

triggered here. Ct at end says “we assume that Rule 8 is the governing rule here.”o So what impact does Dura have on other cases? Could heighten pleading standard in future securities cases to

which the PSLRA/rule 9 don’t apply. “Rule 8 Securities Cases” Signals a general desire by the court to tighten pleading requirements generally. But – it’s hard to believe that that’s really true – ct just reaffirmed Conley in 02! Why do a 180 just

3 years later. Also, wasn’t there something unique about the facts here that you can’t really apply to other cases?

This is a stock loss case – everyone sold at different times, so you’d have to calculate all their losses differently! s are trying to make the class certification easier. There was an overlap between class certification and pleading in Dura. So if you have a case with just ONE , Dura probably won’t affect you.

B. Preanswer/Answer MotionsRules 8b, 8c, 8d: Responses to pleadings

D must state in S/P terms its defenses to each claim, and must admit or deny every averment. (8b) Three options for response:

o Admit – not discussed any more bc it’s not in dispute.o Deny – highlights this as an issue in dispute.o Effectively deny – claim to be without knowledge sufficient at the time to form a belief as to the truth of the

averment. Rule 11 requires us to update once we DO know, but if we don’t know, that’s ok – it will get

handled at trial. Would amend this under Rule 15a.

If you deny an averment/paragraph, you are denying EVERYTHING in the paragraph. If you only wish to deny part of it, you must specify that out.

If an averment or part of an averment is true, you have an obligation not to deny it. Answers must be made in good faith.

Affirmative defenses must be included in the responsive pleading. (8c) If you don’t include them in your answer, you waive them. Can’t argue them later.

Failure to respond to a pleading (to which a responsive pleading is required) is taken as an admission. (8d)

Rule 9b: Fraud/mistakeMust “set forth with particularity” the circumstances, including: Who committed the act involving fraud, When the act was committed, Where the misleading statement occurred, in a particular document or oral communication, What particular language was misleading, How it was misleading. P may also allege facts giving rise to an inference of fraud.

Motions to DismissRules 12b – h: Defenses and Objections

12b1-7 defenses may be included in responsive pleading OR made by motion.o A motion making any of these defenses must be made before pleading if a further pleading is permitted (12b)o Preanswer motions can be very helpful, because if you win, you never have to answer!o These apply to initial claims as well as responses to counterclaims, cross-claims, etc.o Some of the 12b motions are immediately fatal to the plaintiff’s case:

12b1 Lack of SMJ 12b2 Lack of PJ 12b3 Improper Venue

o Others attack defects in the procedure by which has raised the action: 12b4 Insufficiency of Process – adequacy of the summons itself (Rule 4a)

for example, the clerk didn’t sign it 12b5 Insufficiency of Svc of Process – manner in which the complaint and summons were delivered

to the . 12b7 Failure to Join Indispensable Party

o And 12b6 is special – it challenges the substantive merits of the complaint. 12b6 is akin to the “fatal” 12b1-3, in that it can lead to dismissal if upheld, BUT

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s usually get at least 1 chance to amend complaint (if that’s possible bc it’s just a mistake, not a lack of appropriate facts)

o Must be consolidated under 12g – can’t make them piecemeal – unless the information was not “then available” to the party

THIS PROBABLY INCLUDES 12e too! “Under this rule.” “Least-favored defenses” (12h1) – Lack of jurisdiction over the person, improper venue,

insufficiency of process, or insufficiency of service of process are waived if omitted from a previous motion as in 12g, OR if not made by motion or included in responsive pleading/amendment “as a matter of course” under 15a – meaning before it is served, or once w/in 20 days after being served. (No special permission from court, etc)

Rationale: If has suffered any prejudice from these preliminary defects, she should be able to tell that right away, from the complaint itself!

“More favored defenses” (12h2) – 12b6, 12b7, objection of failure to state a legal defense – if omitted under 12g, can be made in any pleading, by motion for judgment on the pleadings, or at the trial on the merits.

Rationale: these things may not always be easy to determine at the outset 12h3 – Lack of jurisdiction over subject matter can be motioned ANYTIME.

12c is our mechanism to file motion for judgment on the pleadings (after pleadings but before discovery, etc). It may be used as a delayed motion to dismiss – challenge to the sufficiency of the complaint standing alone – or as a challenge to the sufficiency of the complaint in light of particular defenses raised in the answer.

o If you make this motion and then the judge has to consider anything outside the pleadings – i.e. evidence – it gets treated as a Rule 56 motion for summary judgment.

12e – motion for more definite statement – to be made before answering a pleading, if it’s so vague and ambiguous that a party cannot reasonably be required to frame a responsive pleading.

o Results in an amended pleading (from P), within 10 days, if granted.o When you make a 12e motion, you have to ALSO make any least-favored defense motions you plan to

make! Rationale is that lack of jurisdiction, venue or process are things you should know even if the complaint itself isn’t very clear.

You certainly could make a 12b6 after getting an amended complaint from a 12e, because you may not have been able to tell that their claim can’t succeed at the time.

Rule 12b6: Motion to dismiss for “failure to state a claim” Two legal standards for it to apply (no 8a short/plain statement; plaintiff can prove no set of facts entitling relief – can

the court grant you that?). NO outside evidence may be considered – it is a purely legal question: If the plaintiff proves the allegations in the

complaint, will this have established a cause of action entitling him to some form of relief from the court?o Presumption: facts of complaint are construed in favor of plaintiff (assumed to be true). o Must know elements required for a claim to be able to evaluate. o Court must have power to give plaintiff what he’s asking for (ex: brothers/kidney; court CAN’T make

brother give up kidney bc no applicable law). Three ways to get it granted:

o No cause of action exists (brother/kidney hypo) – even if some wrong has been done, there is no legal cause of action or remedy for it.

Requires dismissal. Nothing you can do about it.o A cause of action exists, but plaintiff has not alleged it, or pleading is otherwise insufficient (didn’t meet

criteria, didn’t allege all elements of the claim, forgot to ask for relief, etc) If just missed it, gets to replead. If can’t allege it based on the facts, dismiss!

o C/A exists, but plaintiff affirmatively pled themselves out of it (false imprisonment, but you say you could freely come and go)

If there is a FACTUAL issue, you can’t grant a 12b6 motion – this needs to go to trial. If upheld, judge can dismiss or order a repleading.

o Dismissal is drastic. If the court dismisses, the will never have the opportunity to present his case to the jury or gather evidence through the discovery process that might demonstrate he has suffered a legally cognizable injury.

Hence, cts give every benefit of the doubt to the plaintiff in deciding the motion. “Beyond all doubt that can prove no set of facts entitling him to relief” – Conley.

o If repleading, P can’t use argument that was thrown out. Strategy for : May not want to use 12b6 at all, because if gets to replead, you just told them

exactly what was wrong with his case.

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’s burden to defeat a 12b6 is very light. He doesn’t have to prove any facts or even allege them in detail as long as the court can infer that he is alleging the elements of a proper claim.

Mitchell v. EZ WAY Towers (USCA 5th Cir., 1959) – 12e, motion for more definite statement, cannot be confused with 12b6, failure to state a claim on which relief can be granted. (D had filed a 12e and then a 12b6 based on the 12e). Even if 12e applies, there’s no ground to dismiss, as 12e requires an amended pleading. We shouldn’t be dismissing a case just because the pleading is vague – we should only be dismissing at this point because there is NO way the P can win.

C. Certifications/SanctionsRule 11: Signing of pleadings; sanctions

Applies to all motions and pleadings, except discovery (covered under later rules). Sets up standards of behavior for counsel under 11b – not presenting facts/cases for improper purposes, claims are

warranted by existing law or a change is needed in existing law, allegations have evidentiary support or are likely to, denials are warranted on evidence.

11b – By presenting to the court a pleading, written motion or other paper, an attorney is certifying that to the best of their knowledge, formed after an inquiry reasonable under the circumstances:

o not being presented for improper purposeo claims/defenses/legal contentions are warranted by existing law, or non-frivolous argument for a change in

lawo allegations/factual contentions have evidentiary support (or if specifically so ID’d, are likely to after reas.

opportunity for further investigation)o denials of fact are warranted on the evidence (or if specifically so ID’d, are likely to be after reas. opportunity

for further investigation) Counsel or court can file Rule 11 motion about other side’s behavior – 11c1a/b Sanctions: nonmonetary (injunctions, etc); monetary paid to court (fees/fines); monetary paid to movant (only to

deter, as per 11c2; usu. to reimburse for extra expenses). Court has discretion – “court may impose” in 11c. o Sanctions motions must be made by themselves. But you can make other motions at the same time.

Safe Harbor – 11c1a – after a Rule 11 motion is filed, other side has 21 days to fix the problem. DOES NOT freeze the case.

o If you want to move for sanctions AND dismissal, what order?o Move for sanctions first -- has 21 days to cure. o If the judge grants a DISMISSAL first, there’s nothing to cure/withdraw/etc and nothing on which they can

get sanctioned! 11b3 – parties can allege facts that are “likely to have evidentiary support,” i.e. discovery will bear out the allegations. But, parties have obligation to keep allegations up to date if the evidence does NOT support the allegations.

Continuing obligation to update facts of case. Allows sanctions on law firms for actions of employees.

D. AmendmentsRule 15: Amended and Supplemental Pleadings15(a): Amending a pleading

Party may amend pleadings as a matter of course: o anytime before responsive pleading is served, or o w/in 20 days after it is served.

Outside of “matter of course” amendments, party can amend by leave of court or other party; “leave shall be freely given when justice so requires.” (May fail if what you are doing will cause delay + prejudice)

15(c): Relation back of amendments First, you must pass 15a – have to be allowed to amend it at all! You wouldn’t have to worry about 15c if you don’t have a statute of limitations issue 15c is the “magic potion” that resuscitates what would be a dead claim via stat/lim. If certain criteria are met,

amendment of pleading can relate back to date of original pleadingo 15c1:

Relation back is permitted by law that provides the stat/lim – if a state rule applies and is more potent, use the law.

Make sure it CAN relate back. If state law is more permissive, follow it.

o 15c2 (New claim): Claim arose out of “conduct/trans./occ” set forth/attempted to be set forth in orig. pleading Must have “common core of operative facts,” be factually/temporally related

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Actually pretty permissive for most cases, if facts are actually related. Competing goals – liberal amendment standard in interest of protecting s w/ valid claims, vs. the

fact that this is an end-run around the stat/lim laws, so you don’t want to be too liberal.o 15c3 (New party):

C2 must be satisfied. Much stricter than C2 standard, because the new party will be completely behind. (A) Within 120 days, party received notice of action, AND the notice was such so that they will not

be prejudiced in maintaining a defense. Notice can be informal, such as a conversation, internal memo, etc.

(B) They knew or should have known that, but for ’s mistake, they would have been included in the suit.

“Mistake” is very narrow and often does not include “John Doe” cases, i.e. where you know a “police officer” did it but didn’t see name tag

Key 15c cases: Swartz v. Gold Dust (1981) C3 case – it’s ok to use a John Doe placeholder if you intend to find out specifically

who it is during discovery; reads “mistake” liberally (omitting who may be liable for actionable conduct = mistake); notice does not have to be formal; negligent construction or negligent maintenance are different breaches of the same duty – only one injury, so relatable back; for new s, specific prejudice must be shown, not just that “it’s later now”; one injury = one occurrence

Singletary v. Penn. Dept. of Corrections (2001) C3 case -- cannot add Regan (jail psych) as new because A) no notice w/in 120 days and B) no reason for him to have known he’d be included in suit “but for mistake.” Court rejects “shared atty” and “identity of interest” because non-mgmt employees can’t automatically be imputed to share interest w/ employer. Court discusses sufficiency of replacing a “John Doe” entry as “mistake”; usually not knowing name is not sufficient to establish mistake – here, it’s not because JD referred to “unknown correctional officer” and Regan is a psych

Mayle v. Felix (Supreme Ct., 2005) C2 case -- cannot add new claim (5th Am.) because it is not from “common core of operative facts” as first claim (6th Am.), which was timely. Rejects 9th Circ. interp. that the same trial/conviction can count as the “conduct/transaction/occurrence” – too broad. Wants to support Congress’s goal in implementing the habeas stat/lim statute.

o ****An amendment offered to clarify or amplify the facts already alleged in support of a timely claim may relate back. (New legal theory based on different facts – no.)

o Cites Tiller v. Atlantic Coast Line, in which widow could add failure to have light to orig. other negligent workplace acts that led to husband’s death, because “there was but one episode-in-suit” – husband’s death – and “ negligently operated a certain instrumentality at a particular time and place.”

BF&W v. Motorola (2006) – Being too specific in original complaint can hurt you sometimes when it comes to relating back – BF&W original complaint described “services agreement” while 2nd complaint described “licensing agreement – court says different transactions, don’t relate back. Reiterates Mayle/Tiller that complaints on new facts/theories must still concern the same “common core of operative facts”/same occurrence on which you’re suing “so that adverse party has fair notice of the transaction/occ/conduct called into question.”

John Doe still a useful concept when you want to INCLUDE a party but don’t know exact name (i.e. didn’t see name tag scenario) – just do discovery quickly as possible and get that name in before stat/lim runs.

E. Joinder of Claims & Parties; Counterclaims & Cross-Claims

Joinder of PartiesRule 20 – Permissive joinder of parties

(This is PERMISSIVE – “ is master of the claim,” so s have the right to choose who to add on both sides.) (A) For multiple plaintiffs to join – these requirements must be met:

o Their claims arise out of same transaction/occurrence/series thereof ANDo The claims involve common questions of law and fact

For a plaintiff to join multiple defendants:o ’s right to relief arises out of same transaction/occurrence/series thereof ANDo Any question of law or fact common to all defendants will arise in the action

Judgment may be given for one or more of the s according to their respective rights of relief, and AGAINST one or more s according to their respective liabilities.

20a only applies to joinder of parties by the ORIGINAL PLAINTIFFS. o Except – Under 13h, a can join additional parties as defendants on his counter-claim/cross-claim IF

it is same transaction/occurrence and same law/fact Q.

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(B) The court may:o Make orders necessary to prevent (fraudulent joinder, basically) – part who asserts no claim, or a party

against whom no claims are assertedo Or order separate trials as necessary to prevent delay or prejudice

Rule 19 – Joinder of Necessary/Indispensable Parties Allows you to add in a necessary party that hasn’t been joined yet. This is a fairly narrow set of circumstances! (A) Applies to parties who are subject to svc of process (PJ) in this ct AND whose joinder wouldn’t defeat the court’s

SMJ. Joinder is required if:

o (1) in the person’s absence, complete relief cannot be accorded among the current parties, ORo (2) the person claims an interest relating to the subject of the action and is so situated that ruling on the case

WITHOUT them may: (i) as a practical matter impair or impede the person’s ability to protect that interest OR (ii) leave any of the persons already parties subject to a substantial risk of incurring

double/multiple/otherwise inconsistent obligations by reason of the claimed interest. If these requirements are met, and the person has to be joined, the court shall order that the person be joined as a party.

o If the person should join as a but refuses to do so, the person may be made a or an involuntary . o If the joined party objects to venue, and joinder of the party WOULD render venue improper, then the joined

party shall be dismissed. (B) If the person CAN’T be made a party, the court must determine whether the action should proceed or be

dismissed. Factors to consider:o prejudice to other parties w/o this partyo other ways in which that prejudice can be avoided (shaping of relief, etc)o whether a judgment without this party will be adequateo whether the will have an adequate remedy if you DO dismiss this case for nonjoinder

(C) when s are pleading and not including (known) indispensable parties, they have to state who they are and why they’re not joined

Rule 14 – Third-party s; Impleader ( v. /3p v. 3p) Allows a current to be a third-party and sue a new third-party (who previously was not in the suit) Only applicable if 3p may be liable for some/all of original ’s liability to original . (Should be found liable to

, then something 3p did makes them liable to .) Doesn’t matter for anything if original is NOT found liable! 3p doesn’t owe anything if original wins his

case! Permissive rule – you don’t HAVE to add 3p, but you can. If you don’t, you can sue them separately later. (A) At any time after commencement of the action, a defending party can (implead) a current NON-party who may be

liable to original for all or part of ’s claim against him.o Original doesn’t need leave of court if he does it not later than 10 days after serving his own responsive

pleading.o Otherwise, must obtain leave on motion upon notice to all parties currently in the suit.

(A cont.) The new 3p must make any defenses as provided in Rule 12o And any counterclaims against original , or cross-claims against any other 3ps as in Rule 13.

(A cont.) The 3p can ALSO assert any claims against ORIGINAL . But, must arise out of the transaction/occurrence that is the subject matter of Original ’s suit against Original .

o This is a “claim,” not a COUNTERclaim, as the original and the 3p aren’t opposing parties until one of them files a claim against the other.

(A cont.) The ORIGINAL can then assert any claims against the 3p that arise from the same transaction/occurrence as his claim against the original .

(A cont.) The 3p can assert any defenses of original to original ’s claim, OR assert any defenses he has to the Original ’s claim. (Two ways to get himself out of liability!)

(A cont.) 3ps can also add further 3ps liable to them! (A cont.) Any party may move to strike the 3p or have it tried separately (including the judge). (B) Original s, when faced with a COUNTERclaim, can bring in their own 3ps! When is this ever used?

o You can’t use Rule 14 to “foist alternate s on the plaintiff.” The 3p would have to be liable to YOU, not another “suspect” for the to include.

o Your original claim getting a Rule 14 3pd into court MUST be derivative of the original suit. BUT AFTER you get them there, you can add on other unrelated claims via 18a.

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o 3ps are often impleaded for contribution – if 1 is liable, 3p has to pay them part/all of what has to pay .

General contractor impleading subcontractor is very common. If Gen Contractor doesn’t know which of his two subs was responsible for the mistake, he CAN

implead both. You can implead more than one. They’d just both/either have to be liable to YOU, not .

o Another common impleader situation is indemnity – say 1 has liability insurance with Ins Co, but Ins Co denies that the policy covers the claim. 1 can implead Ins Co seeking to pass on all of his liability.

More basics: Impleader does not affect the ct’s jurisdiction over the ORIGINAL claim -- s can’t game system and destroy

original SMJ by adding a 3p not diverse from the .o BUT – there generally must be appropriate SMJ over this “second suit” 1 vs 3pD. However, you can

usually get it in on Supplemental J (1367) even without it. The impleaded party doesn’t affect venue analysis. Otherwise, s could game system this way too – implead s for

which this venue isn’t appropriate. Important – PJ still matters! To pull in a 3p, the current court must be able to assert PJ over him.

o If (California) sues (Tx) in Texas ct, and tries to implead 3p (Arizona), the Texas court may not have personal jurisdiction over 3p to compel him to appear! (even though SMJ and venue would be fine)

The impleaded party can escape liability in TWO ways:o Assert defenses to the third-party claim (from original )o Assert defenses to ’s original claim against original

The impleader claim is treated like an original suit for pleading, service, etc.o Rule 8 through 11 still applies; new 3p must be served as under Rule 4.o 3p must respond as under Rule 12.o 3p can make counterclaims against Original .o 3p can also implead MORE parties under Rule 14!

3pD can make a claim against original , but probably CAN’T add new other s with P. o 14a allows 3p to assert claims against if they arise out of the underlying dispute, but does not mention

anything about adding new parties.o And 20a only applies to original defendants.

Rule 23 – Class Actions Usually comes in when your case alone is too small, but lots of them together is big enough for lawyers/courts to take

notice. Under 23a, must meet four criteria:o Class is so large that joinder is an impractical way to handle ito Common questions of law & facto Claims/defenses of representative are typical of the whole partyo Representative will fairly/adequately protect the interests of the class

Joinder of Claims:Rule 13 – Counterclaims & Cross-claims

13a – Compulsory Counterclaims – “Use it or Lose it” rule; All counterclaims against “an opposing party” that arise out of the transaction or occurrence that are the subject matter of ’s claim must be made at time of responsive pleading. If you don’t do it then, you WAIVE it forever.

o When claims are factually related, the benefit to trying it all at once is so high that we will force you to do so.o Encourages finality between the two parties.o “opposing party” includes co-s who have filed a cross claim against you! If they file against you, and you

have a RELATED claim against them, you are now obligated to bring it. 13b – Permissive counterclaims – You can choose whether to add any other counterclaims to like, if they’re NOT part

of the same transaction or occurrence. (Goes to same policy interest of letting people work it out all at once.o “opposing party” includes co-s who have filed a cross claim against you! You can permissively join an

UNRELATED claim against a co- if he has already filed a cross-claim, making you an opposing party. OR if YOU have filed a cross-claim, as other is now an opposing party to YOU!

13c – A counterclaim can’t diminish or defeat the recovery sought by the other party. But it can claim relief exceeding in amount or different in TYPE from that sought by other party.

13f – Omitted counterclaim – When a pleader fails to set up a counterclaim through oversight, inadvertence or excusable neglect, OR when justice requires, the pleader may by leave of court add it in an amendment.

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13g – Cross-claims – PERMISSIVE. Two s already in case together can make claims against each other if it’s related to the original action or a counterclaim therein. “Parties on same side of the V”

o Different from 14 bc no new is being created/pulled in.o Don’t HAVE to make cross-claims, though. (Might not be great strategy!)o 1 can always wait and sue 2 later on his own!

13h – You can join add’l parties in counter/cross claim IF it meets the standard in Rule 19/20 (necessary, OR same transaction/same law or fact Q).

Rule 18 – Joinder of Claims and Remedies (a) PERMISSIVE – Parties may join as many claims as they have against an opposing party, regardless of whether

they are related. o You are ALLOWED to join, but not OBLIGATED (why?)

Most cases settle anyway; better to let people get it all out at once Even if case doesn’t settle, the rules let parties split case up when it gets to trial, if they want (almost

never happens, but still, the opportunity is there) Much more efficient, legally and economically (1 judge, 1 mediation, etc).

o Looks like a softie, but hides a danger – common-law doctrine of preclusion. Even if Rule 18 doesn’t make you, the rules of preclusion may bar you from submitting subsequent claims (ex. Accident – if you bring only personal injury, you will be precluded from bringing up property damage claim later)

o “Opposing party” includes co-s who have filed a cross-claim against you. Or, once you file a cross-claim, they’re now your opposing party, so you can join add’l unrelated claims. You just have to get a 13g RELATED claim in FIRST – then you can join on unrelated ones via 18a.

II. Personal JurisdictionBeyond FRCP, other elements affect courts’ powers – statutes, the Constitution.

Federal Concurrent PJ: Rule 4k1a – Fed cts can exercise PJ over a defendant who could be subjected to the J of a trial court in the state in

which the district ct is located. So, the Fed ct will only have PJ if the state courts in that state would have PJ (as determined by long-arm statute,

Const. MC analysis, etc.)

A. Power Theory3 Kinds of Jurisdiction:

In Personam – personal judgment against someone – for $$ damages, an injunction, etc. In Rem – DIRECTLY relating to property – I’m suing you to recover a piece of land. Fairly narrow & specific. (Like

Neff v. Pennoyer – it’s my land, get off it) Quasi-in-Rem – Relating indirectly to property (like Mitchell v. Neff – Mitchell is suing over debt owed, and trying to

attach land to fulfill that personal debt.)

Pennoyer v. Neff (1877) – “The Way it Was” Neff’s argument: I had no notice/no service in orig. Oregon case – this state court judgment violates my Constitutional

rights. Fed. Ct. rules for Neff, on the affidavit issue (doesn’t get into Const. issues) – Pennoyer appeals. This is a collateral attack on a prior judgment – not a direct appeal, which would have been in OR state court on the Mitchell v. Neff decision. In a collateral attack, you are attacking the validity of the prior judgment.

o In a collateral attack, you cannot argue the merits of the case below – since you are not appealing the decision. (In this case, he had a default judgment against him, so he waived any defenses.)

o All you can do is attack the validity of the judgment, usually through procedural means. (Lack of service, notice, adequate representation, etc – violated Const. due process rights)

o Only way you can argue merits again is if you get the case overturned!Sup. Ct. – Field’s Decision – Affirms lower fed ct. (ruling for Neff) but not on the affidavit issue.

POWER THEORY of jurisdiction:o If you’re in state, or your property is in state, jurisdiction.o If you’re not in state/no property in state, no jurisdiction.o Both NOTICE and POWER are required.

Personal Service in-state = notice and assertion of power (over your person), at once Agreement (Voluntary appearance by ) = you have had notice and are now submitting to state’s

power

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Court seizes/attaches your in-state land at start of suit = notice (seizure = constructive notice) and power (court has power over your land in its state), at once

Mitchell/trial court were wrong and had no jurisdiction, because they did not attach the land at the start of the suit (and it is not an in rem action – it’s in personam/quasi in rem). Since the PERSON is out of state, the LAND is the hook; since it’s a personal action, you must attach the land first to have any power over the person – you are using the presence of the land as the means to have jurisdiction in the first place.

So, bc no attachment of land > no power OR notice > no jurisdiction > TC ruling not valid. Attaches to Constitution:

o Full Faith & Credit Clause/Statute – FF&C only extends to valid judgmentso 14th Am. Due Process – Origin of substantive due process doctrine. Validity of judgments may be questioned

if ct. does not have jurisdiction over the party it’s adjudicating. MUST bring s within state’s jurisdiction for rulings to count.

B. “Minimum Contacts” TheoryInt’l Shoe Co. v. Washington (1945) – “The revolution in jurisdiction law”

Replaces rigid but clear rules under Pennoyer – under Pennoyer, no way to get people who caused consequences/harms inside the forum but never enter forum (or stay there long enough to get served) and have no property there.

Inevitable result of industrial revolution, increased interstate business – all those cross-state business dealings were the most confusing part of all this

Washington state court – “Solicitation Plus” rule – solicitation within the state plus some additional activities = you are amenable to suit in state. (Justice Stone could have found on these grounds, but didn’t)

Supreme Court New Rule: Due process inquiry; is it constitutional to make stand trial here? Does it violate his 14th Am rights? “If the is not present within the forum, he must only have certain minimum contacts within it” so that “fair

play and substantial justice” is not violated.o “Presence in the state in this sense has never been doubted when the activities of the corp there have not only

been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued/auth of an agent to accept svc of process has been given.”

o In this case – systematic solicitation of orders resulting in a continuous flow of product into the state = sufficient to constitute “doing business in the state” = “presence.”

o BUT – Even if they didn’t do enough within the state to be considered “doing business,” they can still be held liable for specific causes of action related to their activities. “Other such acts, because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corp liable to suit.”

Key concepts within Constitutionality: State interest: A state has an interest in making its forum open for its own residents who need to sue outsiders; also,

there’s an interest in regulating non-residents’ behavior within the staet.o Is or a resident?o Does have any contacts with the state?o Is the claim connected to the state?o s who voluntarily do business in a state are reaping the benefits of that state’s laws

Fairness to o Has already chosen to appear there before?o Forewarning – if you take these voluntary actions within the state, fair enough to make you stand trial hereo Convenience/inconvenience

Fairness to – their interest in being able to sue where they live

C. Specific and General Jurisdiction Tests Specific jurisdiction: Jurisdiction in causes of action directly related to a ’s activities within a state.

o Picture a scale of relatedness to activities w/in state and contacts w/in state: High relatedness + high contacts = ideal specific jurisdiction case. Low relatedness + low contacts = bad jurisdiction case. High relatedness + low contacts = specific jurisdiction very limited to that type of activity; requires

closer evaluation.o Hypo – Tx resident drives to OK and hits a pedestrian there. Can pedestrian sue in OK? Would this offend

due process? Yes, he can sue in OK – does not violate due process because went there voluntarily; made effective consent to suit in that state.

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o How do you know WHAT contacts in a state are relevant to a claim? Be very precise about what the claim is; that will help you analyze who you’re trying to hold responsible.

General jurisdiction: Jurisdiction over a for ANY cause of action, because their presence w/in the state is so pervasive. (i.e. residents of a state, businesses incorporated in a state, or corporations with giant presence in a state – Exxon in TX)

o At its core, it means that there is always a “safe place” that a can sue a – they have to be based somewhere!

D. Three Inquiries in Jurisdictional AnalysisNecessary parts of establishing judicial power:

Notice – must give notice to of the suit, to tell him what cause of action he is defending against. 3 Step Process :

Step 1 : Notice Step 1A: Proper service under statutory requirement (technical requirements)P must identify some rule or statutory that prescribes a method for giving notice (through service of process) and an opportunity to be heard. (observe that a state may have a service statute that prescribes the means for service outside of the state.)

Service of process consists of 2 documents: a copy of complaint/petition & summons/citation. Methods of service of process in federal court (on individual Ds):

4(e)(2)(A) – personal service4(e)(2)(B)- substituted service4(e)(2)(C)- service on agent expressly appointed or by law4(e)(1) – by following state law4(d) – waiver

Observe that determining where service may be effected when it comes from a federal court is somewhat more complicated than with state court. 4(k)(1)(A) is the general rule, but it is supplemented by exceptions: 4(k)(1)(C)-when authorized by a federal statute4(k)(1)B)- bulge rule- but only for Rule 14 or 19 Ds4(k)(2)- only in federal question cases, if D is not subject to jurisdiction in any state

Step 1B: Constitutional challengesAssuming the technical statutory predicates for effecting service are satisfied (i.e., mailed to the correct address, served by the proper official, delivered in the proper form at the proper time), then a court will find service valid, unless the method runs afoul of the Constitution.

Due Process minimum requirements for ServiceThe standard for what amounts to constitutionally adequate notice, however, is fairly low. To meet the constitutional requirement, “Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane. This means that the method of notice “must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Jones.“Service by mail has been upheld as constitutionally valid.” Jones.

Step 2: Statutory amenability (is there a long-arm statutes that allows the following)After determining whether there was proper service, the court’s next step in the j/d analysis is to determine whether state (or nonconstitutional federal) law authorizes the forum court to exercise j/d over the D. That is, is there a rule or statute by which the legislature has authorized the courts to exercise j/d over the D in this sort of case. Just because the Constitution lets a state exercise power over a doesn’t mean it has to – states are free to limit their own jurisdictional powers. They’re free to say “We will not hear a case here if….”

o For example, a state could rule out general jurisdiction cases entirely for nonresidents – after all, gen J is tricky, as there is always a better place to sue. May also make state more amenable to biz.

o The key principle here is “Hey , go find the statute that lets you sue here!” For example, find the long-arm statute and determine if your cause of action fits within it. Then find the rule on how to serve process, and make sure you follow it.

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o Confirm how far statutory amenability reaches – intended to include this ? If a wouldn’t be amenable under a state’s statutes, it probably won’t be amenable in a federal court either – fed J is usually very similar to state J under Rule 4k1a.

Only exception – if is not amenable in ANY state ct (Rule 4k2) – like a foreign co.

Step 3: Constitutional amenabilityDetermine whether the exercise of j/d is constitutionally permissible. Minimum contacts and fair play & substantial justice analysis.

o Int’l Shoe introduced this formulation & its factors: o MINIMUM CONTACTS – Do they have purposeful availment w/ state? Could they expect suit?o REASONABLENESS FACTORS : (WWV)

State interest – State has an interest in making its forum open for its own residents to sue outsiders; also, there’s an interest in regulating non-residents’ behavior in-state

interests (be able to sue where they live) Burden on – Fairness to ; Convenience/inconvenience to

Forum clauseA. Contrasting contractual acquiescence as a basis for j/d with due process j/d analysis.

o Require 2 components for validity of forum selection clause from Carnival: If P has received adequate notice of the forum selection clause If D can show sufficient reasons for including the clause in K.

1. A cruise line has a special interest in limiting the for a in which it potentially could be subject to suit.

2. Dispell any confusion about where suits arising from the K must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions.

3. Passengers who purchase tickets containing a forum clause benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the for a in which it may be sued.

o Other law from Bremen case will not enforce FS clause if: FS clause was product of fraud Party opposing clause would practically be deprived of day in court Fundamental unfairness of enforcing clause would deprive P of remedy Enforcement would contravene strong public policy of forum These are rarely successful.

B. Comparing contractual j/d clauses with choice of law clauses.o Back to burger king and footnote in that case.

HYPOS on Jurisdiction and the Court’s Analysis: A NY pedestrian is hit by a TX driver (in NY) and wants to sue in NY. Do we let her? Yes; the court has

SPECIFIC jurisdiction over the Tx driver, based on a tortious act in-state on a resident. This will almost always go through.

What about if that pedestrian wants to sue in TX? It would have to be under GENERAL jurisdiction, as the driver didn’t do anything within TX. Of course – we would have that.

o Convenience and fairness to – Where else would it be easier to sue that person? o State interest – This resident gets the benefits of TX laws; TX wants to provide a forum to outsiders as a

deterrence to “behave out of state!”

E. Long-Arm Statutes Gray v. American Radiator (SC Illinois 1961) – Ohio co. , Titan, makes valves out of state, then ships to radiator co. in Penn., who then sells finished radiators in Ill and elsewhere. injured in Ill.; can she sue Ohio valve in Ill., even though they don’t actually sell any valves there?

This is the first case testing the new Ill. long-arm statute, which was the first one in the country. We are deciding the meaning of the statute as well as its Constitutionality.

o For “Nonresidents who have submitted to the J of our courts” – personal svc out of state is now allowed and has the force of svc within Illinois.

o “A nonresident who either in person or through an agent commits a tortious act w/in state submits to J here.”

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o This extension of jurisdiction is a legislative expression of statutory amenability to suit. The state legislature wants its courts to be able to hear this kind of case.

Meaning of “tortious act” – is it just the wrong/injury occurring in-state, or the entire action + wrong? says only the injury happened there, not the negligent manufacture. Court rejects this – says a tortious act isn’t tortious until injury occurs, so the “intent should be determined from general purpose/effect.” Law applies when just the injury occurs here. But – be careful about extending this to NON-INTENTIONAL activities, like negligence.

Due-process question – “It is a reasonable inference that Titan’s commercial transactions result in substantial use/consumption in this state” – element of foreseeability implied.

o “Where alleged liability arises from the manufacture of products presumably sold in contemplation of use here, it should not matter that the purchase was made from an independent middleman or that someone other than shipped product into state.”

o It’s not just quantity of in-state contacts, but quantity + quality. This is why foreseeability is important. HYPO – What if Gray buys the same water heater in Illinois, then moves to Alaska (which is colder than it’s

manufactured for), and the water heater explodes? You could argue that the language should be read broadly – “wherever it ends up” – but then due process has no limits. There’s a foreseeability element here too. You could say that Titan did not “voluntarily inject” itself into Alaska.

o Same for if Gray buys the water heater, then sells it on Ebay to her brother in TX. This is probably not going to work, because at that point Titan is not “purposefully availing” itself of the TX forum.

Three kinds of long-arm statutes & jurisdiction resulting: Statute goes expressly to the full limits of Due Process/Constitutionality . Anyone can sue here, consistent with DP.

That means there’s no statutory amenability analysis necessary; it’s the same as Const. Statute goes to LESS than the full limits of DP; specifies grounds. Ohio long-arm is an example (If you do X, Y or Z

in state, then you have submitted to our cts’ jurisdiction.) Statute goes to less than full limits, but court interprets it to go to full extent of DP. Courts have said “This is what the

legislature REALLY meant.” Texas is like this.

Two steps to analyze PJ under a long-arm statute: Look @ scope of long arm – does it allow PJ to be exercised under the circumstances of this case?

If it’s the same as Const., you can skip this and go directly to the Due Process analysis Does this violate constitutional due process rights?

MC analysis based on deliberate activities of -- purposeful availment? Foreseeable to hale them into court here?

Reas. factors too. OR – did you get tag service on an individual?

F. Minimum Contacts Analysis in OperationHanson v. Denckla (1958) – Unilateral activity of can’t satisfy minimum contacts requirement; there must be “some act by which the purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Gives the clear notice that it is subject to suit there.

World-Wide Volkswagen Corp. v. Woodson (1980) – NY residents buy car in NY; collision/fire occurs in OK; s sue Audi (manufacturer - Germany), Volkswagen (national distributor - Delaware), and WWV (regional distributor – NY) and Seaway (dealer - NY) in Oklahoma state court. WWV was a distributor. WWV and Seaway say Oklahoma has no personal J bc it would violate Due Process (Const.). Oklahoma Supreme Ct says WWV can be sued there because it’s “foreseeable” that a car could be driven there.

Ct says minimum contacts analysis has two purposes:o Protect defendant against burden of litigating in a distant or inconvenient forumo Ensure that states (through their courts) do not reach out beyond the Const. limits on them

Factors that are considered in analyzing “reasonableness”:o Burden on o State’s interest in adjudicating disputeo ’s interest in obtaining convenient and effective reliefo Interstate judicial system’s interest in obtaining most efficient resolution of controversieso Separate states’ interest in furthering fundamental substantive social policies

Reiterates that must purposefully avail itself of the forum. Court redefines “foreseeability” analysis: “The foreseeability that is critical to due process analysis is that the ’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.”

o This gives predictability to the legal system that helps people know what conduct will render them liable to suit, and where.

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o Unilateral actions by do not give reasonable notice that it could be subject to suit here.

Helicopteros Nacionales de Columbia v. Hall (1984) – In TX state court, (TX resident) sues Consorcio/WSH (TX), Bell Helicopter (TX) and Helicol (Colombia). Helicopter, owned and operated by Helicol, crashed in Peru and killed s’ relatives. Question is whether TX court has jurisdiction over Helicol. (Helicol had bought helicopters in TX; negotiated K in TX; sent pilots and mgmt for training in TX.)

The cause of action here is wrongful death – the pilots flew negligently. You are going to be hard pressed to find that this is connected with Helicol’s activities in TX. (MAYBE if you were suing them for negligently training the pilots – but not for this.)

First case in which SC recognizes General/Specific J analysis – so is this a specific or a general case?o Specific J? The cause of action must “arise out of” or be related to ’s activities within state. Court

says parties have conceded this is not the case.o General J? must have continuous/systematic contacts with state, so that due process is met. Helicol

doesn’t have that either. The volume of business in TX isn’t “substantial” enough.

Asahi Metal Ind. v. Sup Ct of California (1987) – Japanese valve maker sells to Taiwanese tire tube maker, which sells tires to CA and other places. Only remaining dispute is between Japan/Taiwan. Simple “placement into stream of commerce” is not enough; deliberate action is required. Big concern here is fairness/burden to . That’s the main reason this gets thrown out, as it MIGHT pass MC analysis.

The debate here is “Stream of Commerce” vs. “Stream of Commerce Plus.” Plus wins. “A defendant’s awareness that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum state.”

Reasonableness analysis – State and interest in trying the case in CA is low; burden on is very high.

Other Key Cases: Calder v. Jones (1994) – CA resident brings suit in CA ct against FL reporter, editor and newspaper. Newspaper,

which wrote article about being drunk all the time, had huge circulation in CA. challenged CA jurisdiction, on due process grounds. Ct uses EFFECTS TEST, quotes WWV – says lives in CA, the act was directed at CA, and the intentional harm was done in CA (’s reputation damaged), so it’s reasonable for to expect suit here.

o Be careful not to use this on negligence cases; may not apply! Keeton v. Hustler Magazine – NY sues OH company for libel in NH (high sales there). Court actually allows suit

there; a celebrity’s reputation can be harmed anywhere. Very expansive use of effects test for defamation suits. Reaffirms “purposeful availment.”

Burger King v. Rudzewicz (1985) – Burger King (FL) sues Rud (MI) in Florida federal ct. for breach of contract (failure to make K pmts), under state long-arm statute. (Even though it’s fed ct – we do same jurisdictional analysis.) says it offends Const. due process. Ct says this K was negotiated in FL, K had language saying Fl law would govern disputes, FL headquarters dealt with , etc., so jurisdiction is Constitutional. Emphasizes importance of ’s actions. purposefully availed itself of benefits of this Florida contact. “Deliberate affiliation” with forum state.

o “The Due Process Clause may not be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.”

o Quotes WWV on reasonableness factors – “sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.”

Burnham v. Superior Ct of California (1990) – Can (individual, NOT a corporation) be under a state’s jurisdiction if he is physically served there but his actions are unconnected with the state? Yes, personal service in-state is one of the oldest methods of jurisdiction. “Courts of a state have PJ over nonresidents who are physically present in the state.”

o Court says that the purpose of International Shoe is to give other means BESIDES personal in-state service to obtain PJ – not to overrule the validity of personal svc in state! Int’l Shoe involved an absent defendant.

Carnival Cruise Lines v. Shute (1991) – Washington sues Carnival (FL corp) in Wash. federal ct for a slip & fall during a cruise. But – there was a choice of forum clause on their tickets saying suits have to be brought in Florida ct. Court enforces this choice of forum clause and dismisses case; it’s not fraudulent, not fundamentally unfair, it’s efficient (otherwise they’d be getting sued EVERYWHERE), and “the s had notice” because it was on the ticket.

“Tag” jurisdiction on CORPORATE s’ employees or agents probably still won’t work – the itself, the corporation, is still absent and would still be subject to MC/due process analysis.

o Some cts say you can “tag” senior corporate officers/agents of process if they’re in state. Some cts say that’s crazy.

o Say a co. is required to register an agent for service of process to do business at all in the state. But the business they do is completely unrelated to the c/a in that state. Can that with that unrelated c/a serve the

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svc agent in state and get PJ? Completely deflates specific J (since you can get general J just from the one process agent); also dilutes general J – no systematic/continuous here.

How can a challenge PJ? Don’t forget – you can challenge constitutionality OR stat. amenability under long-arm statute!

o For statute – applicable statute is that of the state where suit is originally brought. Direct Attack – Must be raised FIRST! How you do it depends on ct’s approach to what constitutes a “waiver.”

Presence of any property in-state usually forces a direct attack, as could enforce in the same state, so you’d have to go anyway! (plus you’d lose your chance on the merits)

o File a special appearance in the court where you’re being sued (does not submit you to ct’s jurisdiction) must take EXTREME care not to raise any other issue.

o Or, some cts now may let you make a 12b2 preanswer motion. If you can do that, can prob. combine other ones too Or, in that same type of ct, raise it in your pleading.

o OR – see if state statute lets you make an “interlocutory appeal” – go to appellate ct re: PJ even though case isn’t finished yet

o If you win, ct will have to dismiss. Unless (rare) it’s just a service of process issue, in which case they may order proper service on you

to cure the problem.o If you continue after judge shuts you down on PJ, you haven’t waived – can raise that on appeal

Collateral Attack – Challenge J in the enforcing court (i.e. your home state)o Ignore original suit entirely -- will get a default judgment, but will have to come to your state to enforce it.

can file new action in your home state to have judgment enforced FFC clause would allow them to do this – BUT they can look at PJ first!

o So, when does this in your home state ct, just raise your PJ issue THEN! Called “collateral” because you are attacking PJ in a different court than where the decision

was handed down.o This is more convenient for , but also very risky! By not appearing in the first ct, you have given up your

chance to argue on the merits. Issue Preclusion Problem – you have to PICK which court you will raise the PJ issue in! Can’t raise it in

original state and then raise it again in the enforcement action in your home state.o BUT – as 12b2 is a least favored motion, you waive it if you don’t bring it in your preanswer motion or your

pleadings. So you can DEFAULT and not raise lack of PJ in original court, but you can’t defend on the merits w/o raising it, and then bring it up in home ct!

III. VenuePersonal jurisdiction is separate from venue. PJ is the court’s power to compel you to appear. Venue is subordinate to jurisdiction. It is a matter of where the case is appropriate to be tried. It further narrows down the appropriate places where someone can be sued.

Venue can be appropriate under 1391 a/b2 (events), but you still may not have personal jurisdiction! Like in Worldwide Volkswagen – venue was technically appropriate in Oklahoma under 1391a2, but the court said there was no PJ on Seaway there.

Applicable Federal Laws:28 USC § 1391 – Venue generally

(a) – DIVERSITY cases may be brought:1. In a district where any resides, if all s reside in the same state (Domicile is where you live + where

you intend to stay.) Sneaky application – if all s can be said to reside in same state – you can sue anywhere ELSE one

of them resides (like a corporation that “resides” in more than one place) If they DON’T all reside in the same state, you can’t use this part – go to a2.

2. In a district where a “substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.”

This should focus on ’s actions, as we’re pulling them into court here.3. (Fallback provision) In a district in which any defendant is subject to PJ (FOR THIS incident) at the time the

action is commenced, if there is NO OTHER district in which the action may otherwise be brought. 1391a3 and b3 deal with cases where the events happened outside the US and/or one or more

is located outside US.

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Example – the 3 s are all from different states, and the accident happened in Canada (b) – NON-diversity (federal question) cases may be brought:

1. In a district where any resides, if all s reside in the same state2. In a district where a “substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated.”3. (Fallback provision) In a district in which any defendant may be found, if there is NO OTHER district in

which the action may otherwise be brought. (c) – A corporate will be deemed to reside in any district in which it is subject to PJ (ON THIS CLAIM) at the

time the action is commenced. So if you can get the corp. on PJ in a state – specific J included, via MC with the state, as well as general J

with HQ or incorporation – the corp “resides” there re: venue. That means venue may be appropriate in lots of places!

If there are multiple districts in the state, and corporate is subject to PJ there – pretend the districts are separate states; it will be deemed to reside in any district where it meets minimum contacts analysis. (If NO district would pass MC analysis, then the corp. resides in the district with which it has the most “significant” contacts.)

(d) – Aliens can be sued in any district.Transfer of cases in federal court:28 USC § 1404 – Change of venue (Presumes CORRECT venue in original location) –

(a) – A district ct may transfer case to any other district where it might have been brought. (Move it from an appropriate place to a better place.)

Two-part test: o Is venue proper where case was originally brought? Can it be brought elsewhere?o Is it convenient for parties/witnesses, and in the interest of justice, to transfer it there?

Considerations, from Gulf Oil, are the same as we look @ under FNC – private interest and public interest.

The court should use the original court’s choice of law rules, to prevent forum-shopping on the ’s part.o Although -- s apparently CAN forum shop this way! can always transfer it & get benefit of original

court’s COL rules (while perhaps litigating at home, now!) “Where it might have been brought” – refers, in the case of a REMOVED action, to its form in which it was removed.

(So if you couldn’t have brought it ORIGINALLY in a given state, can you do it now, considering the form it was in when it hit fed ct?)

28 USC § 1406 – Cure or waiver of defects (Presumes INCORRECT original location) (a) – A district court has two choices if there’s a defect in venue.

o Dismiss the case (as in a 12b3 motion)o Or, in the interest of justice, transfer the case to any district where it could have been brought

(b) – Even if a party does not object to venue, the court’s jurisdiction is not impaired – it can move the case or dismiss on its own.

The court MUST use the transferee court’s choice of law rules (won’t reward for filing in wrong place)

Gulf Insurance Co. v. Glasbrenner (2005) – Interprets 1391a2/b2 “substantial part” to mean venue can properly lie in ANY district in which significant events or omissions material to the ’s claim have occurred.

State Court Venue Concepts: Venue at the state level is based on counties, and will work within the state very similarly to the district system in federal courts. Transfer would be from county ct to county ct. A state court CANNOT transfer a case outside of the state – it has no power to compel another state court to take the case.

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IV. Forum Non ConveniensFNC involves dismissal only – not transfer. So courts are on a tighter leash than with 1404/1406.FNC is very determinative of the ultimate outcome; if s lose the FNC issue, they are very unlikely to win the second time – and that’s if they refile at all, which many do not.

As courts expanded personal jurisdiction limits through Shoe, WWV and the like, Congress/the courts similarly expanded courts’ discretion to decide which cases to hear (Gilbert, Piper).

Gulf Oil Co. v. Gilbert (1947) – Establishes FNC – We normally leave ’s choice of forum alone. But dismissal will ordinarily be appropriate if ’s chosen forum imposes a heavy burden on , or on the court, and has no good reasons of convenience supporting his choice of this forum. (Establishes public/private interest factors.)

Federal Forum Non Conveniens Test:R ule : A party filing a motion to dismiss based on forum non conveniens must establish the availability of an adequate, alternative forum where the case can be heard. If and only if the moving party establishes an available, adequate, alternative forum, the court must balance the relevant public and private interests.

Is there any special venue provision here, like under the specific federal statute is using? o Probably will let keep it there, if so – Congress has expressed its intent that be given additional venue

choices beyond the general venue rules – Kepner.o If the case really looks like it’s not in a good place, ct can transfer via 1404.

Is this case in an appropriate court to begin with? (The idea is, it’s in a “correct but inconvenient” place.)o SMJ, PJ, Venue.

Is there an adequate and available alternative forum?o The court must have a “justifiable belief” that there IS an A/A alt forum. There almost always is.o If there is an alternate forum, it’s hard for s to get it declared “inadequate” – usually the only way is that

your chances of recovering are zero, or that it’s a foreign country. Stat/lim problems; This not subject to jurisdiction of other court Super-corrupt foreign regime

o Conditions can be set to help ensure the alternate forum is adequate. (For example – may have to agree to give up any statute of limitation defenses.)

Private interest factors: (from Gilbert & Piper) “Plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy”

o Foreign parties to the action (less likely to honor foreign ’s choice of forum here)o Relative ease of access to sources of proofo Availability of compulsory process for attendance of unwilling witnesses, and cost of obtaining attendance of

willing oneso Possibility of viewing premises; availability of evidenceo Availability of any remedy for the in the other locationo Ability to enforce a judgment in another countryo “All other practical problems that make trial of a case easy, expeditions and inexpensive”

Public interest factors: (from Gilbert & Piper)o Administrative difficulties from court congestiono Local interest in having local controversies decided at homeo Interest in having trial of a diversity case in the state that the law would applyo Interest in resolving all the claims at onceo Avoidance of unnecessary problems in conflict of laws, or in applying foreign law (If foreign law would

apply, the court will almost always let it go)o Unfairness of burdening citizens in an unrelated forum with jury duty

But unless the balance is STRONGLY in favor of , the ’s choice of forum should rarely be disturbed.o This determination (FNC or not FNC) is up to the trial judge’s discretion, and should only be disturbed when

there has been a clear abuse of discretion – Piper.

Piper Aircraft Co. v. Reyno (1981) – Plane crashes in Scotland; CA resident administrator of estates sues Piper (PA aircraft manufacturer) and Hartzell (OH propeller manuf.) in CA state court. s removed case to CA fed ct. Piper moves on 1404 and Hartzell moves on 1406 (no PJ) to transfer to PA fed ct. When it gets to PA fed ct, s move to dismiss on forum non conveniens. Ct grants motion & dismisses; says case should be brought in Scotland. Can’t bring case in US just because you like the laws better. The connection with Scotland was much stronger.

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What law applies to the defendants? PA law would apply to Piper (under CA choice-of-law doctrine) and Scottish law would apply to Hartzell (under PA choice-of-law doctrine – can’t apply CA choice of law to Hartzell because the CA ct did not have jurisdiction over Hartzell.)

“A plaintiff’s choice of forum should rarely be disturbed.” BUT – if certain factors are present, courts can dismiss the case.

Unfavorable COL in new forum WILL NOT preclude a FNC dismissal. Public interest factors – Court would have to apply two different laws; case already proceeding with Scotland and is

more related to Scotland Private interest factors – Foreign has chosen US forum purely because of better laws; a lot of the evidence and

witnesses are over there

MISC v. Sinochem (2006 – still in contention) – Arguing about whether FNC can be looked at separately from jurisdiction. MISC says SMJ and PJ are paramount and must be established BEFORE the FNC analysis. Sinochem says it’s ok to look at FNC first; subject matter is more important than personal jurisdiction, and if you’re going to dismiss it anyway, why waste time on PJ… ct isn’t assuming any power by deciding NOT to hear a case.

In Sinochem, MISC wanted to sue Sinochem in Pennsylvania court. There was a concurrent case going on in China, that I think Sinochem had instituted against MISC. The Penn. court dismissed the case on FNC without completely deciding whether they had personal jurisdiction over (one of the parties, I forget which). Their rationale was, go litigate this in China where there's already a suit happening

MISC is arguing that SMJ and PJ are paramount and must be established before any kind of FNC analysis. MISC thought the court never should have gone to FNC without determining proper PJ first. Basically, MISC thinks the analysis should look like this: SMJ/PJ ---- (above, in terms of importance) ---- Venue/FNC

o This is the traditional view -- that venue is subordinate to SMJ/PJ, and that you establish SMJ/PJ before you even look at venue (or, by extension, FNC). The basic rationale is that FNC implies choice between two PROPER forums/venues. IF you don't look at PJ first, how do you know if this forum's even proper? Seems to go against the very nature of FNC.

Sinochem, on the other hand, wants to uphold the FNC dismissal. Sinochem says, why not look at FNC first, if you already have a really good idea that you're not going to keep the case (in this case, because the ct probably would have had to apply Chinese law).

Sinochem would probably agree that you should determine SUBJECT MATTER jurisdiction before looking at FNC, but thinks you don't necessarily need to look at personal jurisdiction first. In this case, it would have taken a good bit of investigation to determine whether or not personal jurisdiction was proper. Sinochem says, why waste all that time messing around with it if you know you'll end up dismissing it either way? (If you don't have PJ, you'll dismiss for that. If you do have PJ, you'll dismiss for FNC.)

So Sinochem is arguing for a scheme like this: SMJ ----- (above) ---- PJ/Venue Sinochem thinks that DISMISSING for FNC doesn't violate anyone's personal jurisdiction rights because by

dismissing, you are declining to exercise judicial power. It's an abstention from exercising jurisdiction. Therefore, the ct isn't assuming any (PJ) power it doesn't have when it DECLINES to hear a case for FNC.

o MISC's theoretical problem with this is that considering FNC implies that you COULD keep the case here, if the public/private factors weighed in favor of it. You are basically assuming you HAVE jurisdiction to "abstain from using it." And you shouldn't act as though you could keep the case if you don't even know whether you have PJ.

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V. Subject-Matter Jurisdiction – DIVERSITYConstitutional Basis: Article III, §2:

Controversies between two or more states Between a state and citizens of another state Between citizens of different states Between a state or its citizens and foreign states, citizens or subjects

28 USC §1332: A – Federal district courts have original jurisdiction when the amount in controversy (AIC) is greater than $75,000

AND is between:o 1 – Citizens of different states o 2-3 – US citizens and foreigners or foreign stateso 4 – Foreign states and US citizens

A – Permanent residents are considered citizens of the state in which they are domiciledo Domicile = where you live + where you intend to stay

You only have one domicile!o Mas v. Perry – Moving without intent to stay does not change your domicile (it will be the last one you

did establish). Student’s last domicile was in Mississippi, and she has not yet established a new one, so regardless of subsequent moves she is a Mississippi domiciliary.

o Actual foreigners (living here but not permanent residents) are just plain foreign – they can’t mess up diversity no matter where they domicile, as they aren’t citizens of any state.

C1 – Corporations are considered citizens of the state in which they are incorporated AND the state in which they have their principal place of business.

o PPB can be hard to establish with larger companies – look for any definable “center”/nexus and use a couple of tests:

“bulk of corporate activity” – employ the most people, conducts most activities, has most relations w/ public

“nerve center” – corporate HQ; home office from which activities are coordinated (better for things like an insurance co.)

Basic Principles: Complete diversity requirement comes from common law – Strawbridge v. Curtiss in 1806 – it’s not in the plain

language of 1332 or the Constitution. o Insufficient pleading of diversity is curable – ct can tell to amend pleading.

Πs must meet the AIC requirement in the initial claim itself – no interest, counterclaims, etc can add to it. The court will look to the amount alleged in the complaint.

o Also – St. Paul Mercury rule – AIC is determined by amount claimed by in good faith. If pleads over the limit in good faith, then even if jury awards less, SMJ will hold.

Heavily in favor of -- judge must let case stay unless it appears to a legal certainty that the claim won’t meet $75k.

o If the state’s laws forbid allegations of monetary damages in the complaint, the district ct may consider whether it’s “facially apparent” that the AIC is met, or it may require SJ-type evidentiary submissions to make a determination.

o Punitive damages can go toward the AIC amount, but only if the is entitled to them as a matter of (state) law. Cts will scrutinize closely if the comp. damages are small in comparison.

In cases with multiple s, under state law, their claim to the punitive award must involve a common, collective right to the pot of punitives. (Will NOT be allowed to count if it’s a joint/several right to a portion of the award.) Atty fee awards work the same way.

o Injunctive relief – measured from economic view of the . Aggregation of claims:

o Each must meet the AIC on their own – can’t add up several s’ claims to hit the AIC requirement.o can aggregate all claims against ONE , but can’t aggregate his claims against multiple s to hit the AIC

amt.o See Supplemental J re: an exception –Allapattah said just the representative, just one , had to meet

AIC in the well-pleaded complaint.

Fraudulent Joinder Applies when has filed in state court, and would like to be able to remove, but the lawsuit currently includes

parties that destroy complete diversity.

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Fraudulent Joinder arguments – that the has added unnecessary/improper plaintiffs or defendants to prevent complete diversity – are how s can challenge a lack of diversity jurisdiction. (s usually want to get INTO federal court; s are more likely to lose in federal court.)

If can prove that the s in question have no valid cause of action against the s in question, or that there is no possibility of recovery, then the “fraudulently joined” people can be thrown out of the case. (This makes it removable to federal court.

In re Benjamin Moore & Co. (5th Circ. 2002) – Lead paint case; s added in-state s, among many national s. The s removed to federal ct and argued fraudulent joinder, saying that most of the s had no claims/could not recover from the in-state s, so the s should be split in half. s then successfully moved to remand. Splitting s into groups could occur, but it didn’t here – s lost.

VI. Subject-Matter Jurisdiction – FEDERAL QUESTIONConstitutional Basis: Article III, §2:

Arising under the Constitution Arising under federal law Arising under treaties

28 USC §1331: Federal district courts have original jurisdiction over civil actions arising under the Constitution, federal laws, or

treaties.

The “Well-Pleaded Complaint” Rule: Louisville & N.R. Co. v. Mottley (1908) – Establishes WPC rule. The federal question MUST be raised by the in

his “well-pleaded complaint”/cause of action. Plaintiffs cannot (as the Mottleys tried) say that the federal question will arise in the ’s response/defense. The federal q MUST arise from the ’s own complaint.

o Quote: “when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or the Constitution.”

o s here said, “We think the RR is using a new US law as an excuse not to give us railway passes anymore, but we don’t think that law applies.”

o The real cause of action here was breach of contract, which is a state law issue. The only place federal law came in was regarding what the might argue.

Tacks on to the §1331 requirement of “arising under.” Does not apply to appellate cases; only federal cts of original jurisdiction. The rule asks whether the would HAVE to raise the issue in a complaint which includes the elements she

needs to prove to establish her claim (and nothing extra).

Holmes’ Creation Test: A suit arises under the law that creates the cause of action. American Well Works Co. This means that the majority of cases brought under federal-q J are those in which federal law (or the Const.) creates

the cause of action.o The federal law is the “source” of the right to sue. W/o it, has no right to sue.

Generally more useful as an “includer” (if it meets this, it will meet 1331) than an “excluder” of SMJ.

Requirements for Federal Q SMJ: Constitutional basis (Art. III, § 2).

o According to Osborn v. Bank of US, all “constitutionality” requires is a “federal ingredient” in the case. Constitutionality is broad. This is easily met.

o Sets the outermost limits of the federal trial courts’ power, but Congress has to pass a law to GIVE that power to the cts. (Cong had to create the cts in the first place!) Congress can feel free to restrict authority however it likes – just can’t give EXTRA power.

o Art. III, § 2 “Federal cts. have original j/d over claims arising under federal laws and treaties”

o Art. III, § 1 Congress has the power to confer as much or as little j/d to federal cts. as is allowable under Art. III,

§ 2, through the enactment of legislation Vast majority of cases that come w/in the grant of general federal question jurisdiction are those

encompassed by Holmes’ statement that “suit arises under the law that creates the cause of action” = federal law creates the cause of action

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Substantial Federal Q – Here, we’re not provided with a statute specifically creating a private right of action under federal law/no “grant of original j/d under a federal statute”

However, Congress has enacted 28 USC § 1331, which broadly grants federal subject matter jurisdiction to complaints “arising under” federal law

Statutory authorization o Means that Congress has provided original jurisdiction to fed cts in the statute,o Or that Congress has provided (or implied) a private right of action for plaintiffs.

Factors, per Merrell Dow: Are s part of the class for whose benefit the statute was passed? Does legislative intent reveal a Cong. purpose to provide a private c/a? Would a private c/a further the underlying purposes of the legislation? Is the c/a of a subject traditionally relegated to state law?

If the federal statute does not provide a grant of original jurisdiction, and there is no express/implied private right of action, then we go to the substantial federal question doctrine to see if the case belongs in federal court.

Substantial Federal Question Doctrine: Applies to cases that would FAIL Holmes’ creation test – the cause of action is state-law based. This is the “exception to the general rule.” Most cases will clearly present original J and a right of action, or they

clearly will not. 28 USC § 1331

o District cts. have original j/d over claims “arising under” federal law (Constitution, laws, or treaties of the US) …

o “Federal question” subject matter jurisdiction is a judicial interpretation of the “arising under” language contained in 28 USC § 1331. It’s not specifically provided for in the statute; instead, it’s found in case law.

o A case may arise under federal law “where the vindication of a right under state law necessarily turned on some construction of the federal law” based on the presence of a federal issue in a state-created cause of action

The mere presence of a federal issue in a state cause of action does not automatically confer jurisdiction

The fact that federal legislation does not provide a private right or cause of action is significant to the determination that the federal issue is insufficiently “substantial”

“In certain cases, federal question jurisdiction will lie over state law claims that implicate significant federal issues” – claims recognized under state law that turn on substantial questions of federal law. So there is a “serious federal interest” in adj. in the federal forum. State law claim can’t succeed w/o proving a proposition of federal law.

o Smith v. KC Title & Trust (1921) – suit by a shareholder against a defendant corporation, about issuing bonds. The c/a was under Missouri state law, but the Ct said federal-q J applied because Constitutionality was the real issue to be decided. Therefore, for substantial federal question J, “the right to relief depends upon the construction/application of federal law.”

Merrell Dow v. Thompson (1986) – Tightens up a bit from Smith – not just any old federal issue will get you in the door. s are suing under state-law c/as – negligence, breach of warranty, etc – alleging a FDCA (federal law) violation as proof. FDCA expressly does not grant original j or a private right of action.

o Cases may also “arise under” federal law where “the vindication of a right under state law necessarily turns on some construction of federal law.”

o In this case, the SC thinks this wasn’t enough to qualify as a substantial federal q – the state law issues could be resolved without it.

o SC also thinks that Congress did not intend for this kind of case to get into federal court. If all it took to get into fed ct was to incorporate a single federal regulatory standard – of which

there are thousands – well, tons of state law cases do that, so you’d see a flood of removals to federal ct.

Grable v. Darue (2005) – Establishes test for substantial federal question jurisdiction. (In this case, the IRS seized Grable’s land, and Grable was disputing Darue’s subsequent acquisition of it. The case hinged on the interpretation of the notice required under US tax law.)

o A substantial federal question Will it affect a wide range of people and behavior, or just this single circumstance?

o Necessary to the disposition of the caseo Actually in dispute

It helps if this issue, once settled, won’t need to be readdressed – it can be a precedent-setter.o And the balance of state/federal ct power wouldn’t be upset. (In line w/ Cong. Intent.)

Is the “impact on federalism” too high – flood of cases? Will this lead to a flood of state-law claims in federal court? You don’t want to encourage

continuous removal of cases that would routinely be tried in state ct.

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We’re saying that, because these four factors are present, even w/o a private c/a and OJ, Congress still intended this case to be in the federal courts, under the meaning of §1331.

The whole reason we need to guess at Cong intent is that they haven’t expressly set that out via private right of action or independent grant of original J.

In Grable, the whole case hinged on whether Grable had been given proper “notice” of the seizure under the federal tax law. If he had, he would lose. If not, the land was still his.

o The fed q DOES NOT have to be Constitutional – the Ct expressly denied to draw that line.o Problem with Grable – makes it a lot easier for s to try a substantial question argument

Test for Subst. Federal Q – using example of tax question from past examI. State cts. have concurrent j/d w/ fed. cts...therefore, person seeking federal ct. j/d has burden of proving that

federal ct. has the power to hear the caseII. Constitutional basis

a. Art. III, § 2i. “Federal cts. have original j/d over claims arising under federal laws and treaties”

ii. Osborn – just a federal ingredient is enough to meet constitutionalityb. Art. III, § 1

i. Congress has the power to confer as much or as little j/d to federal cts. as is allowable under Art. III, § 2, through the enactment of legislation

ii. Vast majority of cases that come w/in the grant of general federal question jurisdiction are those encompassed by Holmes’ statement that “suit arises under the law that creates the cause of action” = federal law creates the cause of action

1. Here, we’re not provided with a statute specifically creating a private right of action under federal law/no “grant of original j/d under a federal statute”

2. However, Congress has enacted 28 USC § 1331, which broadly grants federal subject matter jurisdiction to complaints “arising under” federal law

III. Statutory basisa. “Subject matter jurisdiction is a creature of statute” (Hoffman)b. 28 USC § 1331

i. District cts. have original j/d over claims “arising under” federal law (Constitution, laws, or treaties of the US) …

ii. “Federal question” subject matter jurisdiction is a judicial interpretation of the “arising under” language contained in 28 USC § 1331. It’s not specifically provided for in the statute; instead, it’s found in case law.

iii. A case may arise under federal law “where the vindication of a right under state law necessarily turned on some construction of the federal law” based on the presence of a federal issue in a state-created cause of action

1. The mere presence of a federal issue in a state cause of action does not automatically confer jurisdiction

2. The fact that federal legislation does not provide a private right or cause of action is significant to the determination that the federal issue is insufficiently “substantial”

iv. TEST (Merrell Dow, Grable)IV. FIRST PRONG:

a. Is there a substantial question of federal law actually in dispute?i. Probably not. Although the dispute “involves”(broadly speaking) the legality of tax shelters under

the Internal Revenue Code, which is federally-enacted statute, the Plaintiff and Defendant do not dispute that the shelters are illegal.

1. The court here isn’t going to decide whether KPMG’s “investment program” is illegal, but instead…

2. Plaintiff and Defendant dispute, and the court will decide, whether or not the opinion letters issued by Defendant misrepresented the fact that the IRS would deem the shelters legal.

3. Fraudulent/negligent misrepresentation is a state law cause of actionii. If the dispute did involve the legality of the tax shelters, then ask yourself …

1. Is the determination of legality of federal tax shelters (governed by IRC) an essential element of the state-law tort claim misrepresentation?

2. Is the federal tax issue an important issue of federal law that sensibly belongs in federal court?

b. Is the resolution of the federal question necessary to the determination of Plaintiff’s case?i. Yes. BUT, the investment program, we must assume, has already been determined to be illegal by

the IRS21

ii. That’s why Plaintiff is bringing the case; it received an opinion letter that claimed the tax shelter was legal, when in fact, the IRS had already determined that the investment program was illegal. Misrepresentation, not legality.

V. SECOND PRONG: “…federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent w/ congressional judgment about the sound division of labor b/t state and federal courts governing the application of §1331”a. Assuming the FIRST PRONG is satisfied, would allowing a federal court to hear the case upset the balance

between state and federal court caseloads that Congress intended?i. Probably. If federal courts are required to decide negligent misrepresentation claims (traditionally

a state law claim) just because they somehow involve a federal law, then state courts will be deprived of the power to hear cases that are fundamental determinations of state law.

ii. The federal law that’s used as a basis for subject matter jurisdiction in the case must be necessary to the court’s determination of liability.

iii. The involvement of federal law can’t just be collateral to the state law issue actually determined in the case. It must be the issue that’s determined in the case.

Artful Pleading The federal-question equivalent of fraudulent joinder in diversity cases. Occurs when:

o trumps up his claim to get into federal court (without a really good federal Q) o downplays the presence of a federal Q to keep his case in state court. (Actually more common, as s

usually do better in state court.) AP objection can be raised by the defense to try to get the case where he wants it.

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VII. Subject-Matter Jurisdiction – SUPPLEMENTAL JURISDICTIONApplies when a is alleging a federal law claim and a state law claim at the same time. Can he get them both into federal court?

v. --- fed law claim 1 --->--- state law claim 2 --->

Progenitors of Supplemental Jurisdiction: Pendent Jurisdiction – Allowed s to bring along your state law claim IF it had a “common nucleus of operative

fact” with the federal law claim. United Mine Workers v. Gibbs (1966). Judges still had power to say no, though.o Idea is that the two claims, because of the CNOF, should be adjudicated at the same time.o Pendent jurisdiction only had effect in a 1331 case, not a 1332 case. Cts would never treat TX v. NY (state

claim) and TX v. TX (state claim) as the same thing. Ancillary Jurisdiction – Worked the same as pendent jurisdiction, but applies to defendants’ compulsory

counterclaims (parties other than the plaintiff). This allowed the defendant to make a state-law counterclaim against a who had a federal claim against him.

o Also applied to third-party Rule 14 claims, as those are “logically related” to the original claim.o Often did NOT apply if the counterclaim was permissive as those come from DIFFERENT events, and can

always be brought later. Pendent Party Jurisdiction – attaching another party and a state law claim against it, because of “same transaction.”

Cts only allowed it when federal statute gave federal courts exclusive jurisdiction over a federal claim. o Rejected completely in Finley.

Supplemental Jurisdiction, established in 28 USC §1367, encompasses all of these and basically says Finley would have been OK – yes, non-diverse plaintiff, but it’s a 1331 claim getting you in.

28 USC §1367:1367a – Applies to 1331 Federal Question cases

Except as in B and C, or as expressly provided otherwise in federal statute, In any civil action of which the district courts have original jurisdiction, the district courts shall have Supp J over all

other claims that are so related to claims in the action with original J that they form part of the same case or controversy. (This language codified the CNOF language in Gibbs).

o “So related”/“same case/controversy” is generally interpreted to mean “common nucleus of operative fact.” (This is quite broad.) This includes claims that involve joinder/intervention of add’l parties (Finley).

o Pendent party is OK now1367b – Applies to 1332 Diversity cases (NO 1331 basis at all, just diversity)

Basically, the supplemental state law claims are not allowed to destroy complete diversity. District cts shall NOT have supplemental J under (A) over:

o claims made by s against s joined under Rule 14, 19, 20 or 24o claims by proposed joined s under Rule 19 or s seeking to intervene under Rule 24.

This means it technically doesn’t bar extra s joined under 20! Permissive joinder plaintiffs may not have to meet AIC as long as the first does – but it prob. still does have to meet complete diversity (huge common law bkgd here)

ALSO – this DOES NOT restrict defendants! Co-defendants or defendants joined after the initial complaint CAN assert claims against non-diverse parties.

IF doing that would be inconsistent w/ jurisdictional requirements of 1332 (complete diversity/AIC). 1367c – Gives courts the right to decline supp j if:

Claim to be attached raises a novel or complex issue of state law State law claim “substantially predominates” over the fed law claim Dist. Ct. has dismissed all of the federal claims (so there are only state law claims left) Or, “other compelling reasons”

TX v. OH (1332) ------- Not ok; contamination of diversity, as the only way OH you got into fed ct was through diversity J.

TX v. OH (1331) ------- Ok because you got into ct on Fed Question J; diversity doesn’t matter.OH (state law)

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Three-step process to see if two claims can be adjudicated together:1. United Mine Workers v. Gibbs – Is there a Constitutional basis for the federal court hearing these two claims at the

same time? Is this coming from the CNOF?a. Why do we need to do this? Because the federal courts are courts of limited jurisdiction – Art III gives

power to adjudicate cases “arising under the Const, US Laws and Treaties.” Constitutional limit on power.b. Gibbs requires that the two claims (one fed, one state) have a “common nucleus of operative fact.” Then, we

treat the two claims as if they are the same case.2. Statutory amenability for adjudicating second claim? This is usually coming from 1367. A lot easier to satisfy this

part now.a. Original Federal J must be there – where the anchor claim is a federal claim, it must also satisfy the §1331

civil action standard (well pleaded complaint). Fed court must have the power to hear the fed claim.b. 1367b – Can’t violate 1332 diversity requirement if the original federal jurisdiction was based on 1332

diversity. c. Basically other than that, you’re just looking for CNOF to satisfy 1367a. (clearly relates to same facts; not

necessarily limited to same legal elements.)i. We don’t need a statute giving us supp J for Gibbs – once you say these two claims are connected,

then they’re all part of the same civil action and that’s the end of it. We have already defined the state claim as part of the qualifying c/a.

3. Is the federal claim substantial (or non-frivolous) within the meaning of the Bell v. Hood standard? Basically, use discretion to decide whether you SHOULD hear it. (§1367c)

a. Is it a federal claim with some merit to it? If not, we don’t want it to be available as an “anchor” on which some state claim can go along for the ride. That would be gaming the system.

b. This is a low threshold since we can’t try the claim ahead of time. Similar to basic pleading standard – 8a/12b6 – we don’t want to set a very high standard and deny access to courts

c. “Substantial/nonfrivolous” is completely different from the “substantial federal question” doctrine. Different tests w/ different purposes. You could meet one and not the other.

The big rationale for letting people bring along a state claim with their 1331 claim is that otherwise, most people would just sue in state court on both. (State ct has concurrent jurisdiction over federal law claims unless the fed law expressly gives J to fed ct.) That would lead to lots of federal law cases being heard in state ct.

If sues with one fed law claim and one state law claim, and Fed Ct doesn’t want to hear the state law claim, it still has to hear the fed law claim by itself! is entitled to federal forum on the fed. Claim.

Supplemental Jurisdiction Case Law: Owen Equipment v. Kroger (1978) – Occurs before §1367. Kroger (Iowa) sues OPPD (Neb.), who 14a impleads

Owen (Neb., apparently) – this is ok via ancillary J. Federal J was based on §1332 diversity. Kroger sues Owen too, and OPPD drops out of the case. But then it comes out that Owen’s principal place of business was in Iowa. So that means we have Kroger (Iowa) v. Owen (Iowa). Ct says supplemental jurisdiction DOES NOT apply when it would destroy complete diversity, even if there is CNOF.

o We must have Constitutionality (“arising under”/CNOF) AND Statutory amenability (§1332 diversity requirement). The problem here is statutory, not Constitutional.

o OPPD could sue non-diverse Owen under ancillary/supp J, but Kroger can’t – we won’t let the subsequently bring a claim in federal court that she couldn’t have asserted originally.

o Ct says it doesn’t think §1332 is meant to prevent s suing nondiverse s as they’re involuntarily brought into the suit in the first place. It doesn’t think that runs afoul of Congressional intent.

o Policy reasons – Court won’t let s make an end-run around the diversity requirement. “The has chosen the federal forum and thus must accept its limitations.”

Exxon Mobil v. Allapattah, Ortega v. StarKist (2005) – Can there be original J if not all class-action s meet the AIC requirement? Can there be supplemental J to bring in the rest of the claims? No, they don’t all have to meet AIC requirement – when WPC has at least one claim that satisfies the AIC, and there’s no other defect in jurisdiction, §1367 authorizes supp J over all claims by diverse parties arising out of the same Article III case or controversy.

o A defect would be Tx and Ohio suing Ohio; no complete diversityo Ct is distinguishing AIC, which only has to be satisfied by one , from diversity, which has to be

satisfied by everyone.o For purposes of diversity in class actions, we only consider the diversity of the NAMED class rep.

(Unnamed/absent s’ citizenship doesn’t matter.)o Before SJ/Allapattah, the named class member and ALL unnamed class members definitely had to meet the

AIC requirement on their own. If just one absent class member was below the minimum, the case could not

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go forward including that member. Problem is, class actions are usually BECAUSE the amounts aren’t that high on their own.

o Court takes a literalist approach in Allapattah – in Exxon, s were joined by R.23, and in Ortega, s were joined by R.20 – Ct reads 1367b literally, which only blocks joined plaintiffs under 19 and 24. Therefore Rule 20 and 23 s are ok.

Why does the presence of a non-diverse party destroy finding of original J under 1332, but by contrast, a party w/o the AIC requirement doesn’t?

o Presence of one non-diverse means that we don’t need to provide a federal forum of this case, because the same-state parties cancel each other out in terms of bias. So the legislative intent was not to provide a fed forum in that case.

o Intent with AIC was just to distinguish important from unimportant; we’ve already got at least one that meets it, so the case is sufficiently important.

“Jurisdiction Plus Joinder” You have to have both power (via jurisdiction) and permission (via joinder) to bring your claims in federal court. There may be many cases where joinder rules would allow you to make a claim, but the federal court has no power to

hear it (i.e., it destroys complete diversity, like in Owen).

VIII. RemovalThe removal statutes allow defendants to move a case from a state court to federal court.

Concurrent Jurisdiction System in US Courts: Designed to protect both plaintiffs and defendants by giving two choices of forum in most cases (state and federal). Defendants have the ability to remove to federal court if plaintiff files in state court. If Texas sues Louisiana, in Texas

state court, Louisiana can remove. Designed to protect s from bias/prejudice/hostile courts in other states.o However – Defendant CANNOT remove to federal court if plaintiff files in defendant’s home state court. If

Texas sues Louisiana in Louisiana state court, can’t do anything about that. The bias/prejudice concern is no longer a factor.

Plaintiffs are protected too, in that they can choose where the suit is filed in the first place. If a is worried about bias, she can choose a different court.

28 USC §1441: What can be removed(a) Any civil action brought in a state court of which the federal district court would have original J may be removed by

the defendants to the district court in the county where it’s pending.(b) 1331 claims are removable without regard to diversity. 1332 claims can only be removed if there is complete diversity.

Also, a 1332 diversity case can ONLY be removed if no s are citizens of the state in which the case is brought. (If they are, they already have a home-state advantage.)

(c) Allows removal of the whole case where there is an independent removable claim joined with otherwise non-removable claims. After removal, the district court can send the other claims back or keep them.

Key variable in 1441 is whether fed ct would have original jurisdiction – either through 1331 or 1332. The right to remove the case is completely a legislative prerogative. The right to remove depends on a statutory grant of that right; without that grant, the case must stay where filed it.

28 USC §1446: How you can remove it(a) must file in the geographically appropriate district court a notice of removal, containing a short & plain statement of

the grounds for removal and a copy of all process, pleadings and orders served. ----The notice of removal must PLAINLY indicate that reqs for federal jurisdiction are met.

(b) s must remove within 30 days of formal service “or otherwise”; Diversity s have a strict 1-year time limit to remove. If the case wasn’t initially removable, s have 30 days from learning that it BECAME removable (receipt of amended pleading, etc).

(d) Promptly after filing removal w/ district ct, must give written notice to all parties and the state ct. The state ct must then stop all proceedings on the case until/unless it is remanded.

28 USC §1447: What happens after removal?(a) The district court can issue orders to bring in all necessary parties.(c) ’s motion to remand for anything other than a lack of SMJ must be made within 30 days. A case can be remanded for

lack of SMJ at any time before final judgment. (If the does NOT make a motion to remand within 30 days, they waive their right to remand.) Also, a remand order can award atty fees/costs to .

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(d) Remand orders are NOT reviewable on appeal.(e) If after removal, the tries to join parties that would destroy SMJ (meaning, destroy diversity in a 1332 case), the

district court can deny joinder and keep the case, or allow it and then remand the case to state ct.

Removal Basics & Strategy Jurisdiction is measured at the time of filing. Removal is a special case – you don’t have to ask permission via motion. You automatically remove the case by

filing this “notice” with the federal and state court. o The burden is then on the to file a motion to remand – which IS asking the judge to do something.

1441c – For removal purposes, fed ct can adjudicate all of the claims – “separate and independent” – as long as there is original J on one. Not the same “so related” standard as 1367; unrelated state law claims can come along too. (Or the court can split up the claims and send the state ones back to state court.)

o This seems to be beyond the Gibbs Constitutional maximum – CNOF. This lets you get any old state law claim in court.

Because of the 1446b time limits, the proper approach for s is to remove ASAP – as soon as you know you’ve been sued and it’s under federal/diversity J.

o Formal service used to be required, but now, “other papers” may count too. So as soon as you get ANYTHING that tells you this might be removable, DO IT.

o The 1-year removal time limit for diversity cases is STRICT – even if the case doesn’t become removable on a diversity basis until after the year is up, it’s too late.

s have to be very careful not to do anything that would waive their right to remove. s must remove before they seek any affirmative relief from the state judge.

o Anything “permissive” or requiring the judge to look into the merits will usually waive right to remove. (Examples – permissive counterclaim; participating in discovery; moving for SJ)

o Allowed actions: filing your responsive pleading (as it’s required); making special appearance on jurisdictiono Iffy but probably a bad idea: using any of your preanswer motions, as it requires the state court judge to rule

on something. Just file for removal immediately, before your pleading is due, and make those arguments in federal ct.

o Actions while removal is ambiguous probably won’t waive your right to remove. All s must consent to the removal (common-law standard, not in the statutes).

o If they don’t all consent, that is a defect in removal. o Then the non-consenting s can make a motion to remand, or the s could move to remand if they found out

about it. Weird exceptions : A couple of statutes give the right to remove even though there is no grant of original J.

(Removal right w/o a grant of original jurisdiction) – example, 1443 gives right to remove in two special circumstances which could arise even though is not seeking relief under federal law (in well-pleaded complaint).

When can s remand (and defeat the removal)? s can remand if jurisdictional OR procedural defects are present. Jurisdictional defects are NOT waivable – as in Rule 12h3, subject matter J objections are not waived. Procedural defects ARE waivable if you fail to raise them:

o Removed to wrong court (wrong district, etc)o Not all s consentedo Short/plain statement of grounds for removal not giveno Not removed within 30 dayso It’s a 1332 claim and removed after 1 year passed

Same “don’t take action” rule applies to s – if they take action in the federal court, they give up their right to remand.

Why can’t s appeal a remand to state court? Because 1447d gives a broad prohibition on reviews of remand orders. We’re not going to drag out this litigation by reviewing the district judge’s order – we’d never get to the merits. (While it’s important that fed cts be available, it’s not as important as you think; interests of moving on are greater than interests of preserving federal forum.)

Amended Pleadings and Removal TX v. NY – looks like it will be over $75k. removes. Then, amends pleading to say “We’ll cap recovery at

$75k.” Most courts say that is no good; you can say that at the front end but can’t amend the AIC downward to get out of federal court.

o But, the can “non-suit” the suit, then refile and specifically say he’s suing for less than 75k.

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What about, in TX v. TX, files suit w/ a state & a federal question, removes, and then amends to get rid of the FQ claim? Probably will get sent back to state court, as the federal court can’t adjudicate this case w/ no federal question.

o Different from diversity/AIC cap because the AIC is legislative and not Constitutional – ct less willing to allow that kind of gamesmanship by because they can still Const. hear the case.

Removing Federal Question Cases Most will fall under the 1331 “arising under”/“creation” test A few will fall under the Grable/Substantial Federal Question doctrine The rest – Complete Preemption; under Article VI, federal law preempts state law when there is a conflict between the

two. o Under Mottley, the argument that federal law trumps only shows up under the defense, and therefore does not

fall within the well-pleaded complaint rule. But there is a narrow doctrine called “complete preemption” that says there are 2 flavors of preemption, ordinary and complete.

o If you have ordinary preemption, it’s only a defense and you don’t get 1331 original J. o But there a couple of statutes out there where the preemption is so complete that it totally eviscerates

any state law on the subject. In that case, to try to argue that there is a state law here is a type of artful pleading, and therefore, if you have complete preemption, it comes within 1331 and is removable.

o Complete Preemption ONLY applies to statutory conflicts, and the federal law must explicitly say it trumps all state laws. With CASES that conflict/prevent a later case, it’s preclusion, not preemption.

Removal Case Law Martin v. Franklin Capital Corp. – Class-action suit filed in NM state ct. s remove case by 1441/1332 (diversity).

The issue here was whether the AIC was sufficient. The methodology used by at the time of removal was later overruled in a case – but it was OK at the time he made it. Holding – if has an objectively reasonable argument for removal, we’re not going to impose 1447c atty fees on him.

Syngenta v. Henson – Fed ct case in Alabama for people’s exposure to chemicals (from Syngenta). s win and are given a settlement, but must release all claims. Then turns around and files suit in LA state ct about a different chemical.

o What’s a to do here? They already paid settlements. 1) try to get an injunction from the federal court, to stop s from doing this. 2) approach LA judge and move for dismissal, as lawsuit is barred. (Move for summary J, because

it lets you consider evidence)o Could they move for dismissal in LA under 12b6? NO, because you’d have to present evidence there, and

12b6 only lets you look to the 4 corners of the complaint.o What was the basis for removing the case to federal court? No diversity; fed q? s tried to say so – prior

federal judgment (settlement) was preclusive of right of s to sue again. (Why is this not under 1331? Because it’s a DEFENSE – not in the ’s well pleaded complaint, as in Mottley.) Syngenta reaffirms Mottley/wpc rule – arguments about preclusion are defenses, and not good enough.

o What’s the one time a could say that the ’s state law claims are barred? Complete preemption. That’s the only time we depart from the absolute rule of looking at the face of the ’s well pleaded complaint.

Before Syngenta, other courts were using All Writs Act (§1651a) to give themselves a lot of power to protect judgments, etc. People were using this as a magic bullet to get a case into whatever court they wanted. (Agent Orange cases.) And s wanted to use this to get in fed ct, because s do better in front of federal judges. Syngenta wants to feed off fed judge’s frustration with s trying to undo all the neatly tied up work done in the last 2 years.

o Clearly, after Syngenta, people can’t do this now. Now 2 functions: fed judge can use AWA authority to issue an injunction; when parties seek mandamus to appellate court, the app ct’s authority is based on AWA.

o “AWA does not confer original jurisdiction, so you can’t try to use that to 1441 remove.”

HYPOS on RemovalWhat if TX sues NY & TX, in Tx state court?

Suit filed Jan 1; TX is dropped on March 1. 1446b – has 30 days from when the case becomes removable. That’s when the clock starts – it wasn’t removable

before TX was dropped (no diversity). What if TX is dropped on March 1, 2007? (14 months after start of case). No removal; the 1446b 1-year time

limit is strict. (Same principle as 1447d; federal forum privilege is important, but not the MOST important thing. Don’t want cases that have been pending for more than a year to get into fed ct and have to start all over.)

o What if the TX is improperly/fraudulently joined? You remove the case by virtue of 1332 and say this has been fraudulently joined – drop them and then have diversity J.

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o What if TX is not fraudulently joined, but you know is doing this on purpose and will drop them? Too bad for you.

What if adds federal question claim on March 1, 2007? Then can remove; 1446b 1-year limit only affects 1332 diversity cases.

(Removal & Joinder) – TX sues NY in federal court. Clear diversity/1332 jurisdiction. What if, 2 months later, wants to add Ohio ? That’s ok. What if next week, they want to add Tx , under Rule 19 or 20? How do we deal with that? 1447e – you can deny

the joinder, or allow the joinder and then remand to state court. (but you can’t let them in AND keep the case.) Usually shows up in the case of Rule 19 – if they’re necessary/indispensable, we have to let them in, but the case can’t stay in federal court.

TX sues TX – state c/a. How can this remove? By arguing Subs Fed Q. If wanted to remove, they’d just file the motion and argue substantial federal Q that

confers 1331 original J and then 1441 ability to remove. SFQ = substantial question, necessary to adj., actually in dispute, won’t upset power balance.

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IX. Choice of Law Horizontal COL issues: Which state’s law applies? (Piper – what state substantive law applies to the conduct of each plaintiff?)

Vertical COL issues: Is this a question of federal law or of state law? In Federal Question cases, federal law obviously applies. Diversity cases were the issue. Fed cts would make up common law doctrines to supplant state law standards (i.e. negligence) – so do we apply a

federal common law doctrine, or a state law? In Swift v. Tyson (1886), cts held that “fed common law” could and would apply in all kinds of cases unless a state

law applied. This increased levels of judicial power and encouraged less reliance on legislatureo Under Swift v. Tyson, “laws” did not include decisions of state cts. Fed cts were not bound to apply state

common law, just state statutes. In Erie, SC said that fed cts were NOT free to apply general fed common law.

Procedure Substantive lawPre-1938 STATE (Conformity Act) 1872 FEDERAL: Swift v. Tyson – “gen. fed common law”

Corporate interests very protected1934 Sup. Ct. given rule-making auth.

Post- 1938 FEDERAL – FRCP in effect STATE substantive law, after Erie.

28 USC §1652 – The laws of the states, except where US Const/laws provide otherwise, shall be regarded as rules of decision in federal courts.

28 USC §2071-72 – delegation of power on federal courts to make rules 2072a – gives SC rule-making power for procedure in all federal courts. 2072b – “Such rules shall not abridge, enlarge, or modify any substantive right.”

o All laws in conflict w/ rules shall be of no further force when the rules take effect.

Erie RR v. Tompkins (1938) – Accident in PA; Tompkins is PA resident. sues RR in NY fed ct, because he did not want PA law to be applied – he’d have much less chance of winning. (RR was subject to personal jurisdiction in PA and NY; “doing business” in PA, and citizenship was NY because of HQ.)

could have sued in 4 diff. cts – PA state; PA fed; NY state; NY fed. SMJ – no problem in state courts because they’re general J courts.

o PA state – PJ: “doing business”; SMJ: general so yes – but PA cts will apply PA law, and Tompkins would lose.

o NY state – PJ: incorporated; SMJ: general so yes – but NY cts have choice-of-law doctrine that would still apply PA law (place of injury).

o PA fed – PJ: “doing business”; SMJ: yes via diversity – but PA fed cts (3rd Circuit) pushed to defer to state law. (NY 2nd circ did not do this.)

o NY fed – PJ: incorporated; SMJ: yes via diversity – Best chance to get general federal common law applied. This highlights how much inconsistency there was under Swift. A great deal of forum-shopping went on because of this inconsistency. Both s and s, but

especially corporate s. Corporations at the time were ONLY citizens of one state – where they were incorporated. So they

could just re-incorporate wherever they wanted, and either create or destroy diversity. What’s the legal issue? Duty owed to (licensee or trespasser?). RR says he’s a trespasser according to PA law, and

RR only owes duty not to willfully/wantonly harm. Tompkins says he’s not a trespasser, so duty is ordinary negligence/reas. care.

o Erie side – NY had a choice-of-law rule that said you apply the law of the place of injury. Also, the Rules of Decision Act, §725 (“laws of the states shall be regarded as rules of decision.”)

o Tompkins side – No, you should use the “federal common law,” which has an ordinary negligence standard. Fed ct is free to make up own law here because “no such rule had been established by Penn statutes.”

Brandeis argues that Swift v. Tyson’s interpretation of the RDA (“law” only = statutes) is wrong. Not attacking the RDA itself, just the interpretation; overrules precedent of Swift.

o Basic holding: the RDA “laws of the states” should be interpreted to include state judge-created common law as well as statutes.

o Goes on to discuss a Constitutional dimension, but again, it’s just about the Swift interpretation. Interpreting RDA to mean that you can supplant state law is unconstitutional. Judicial branch was usurping the legislative prerogative to make law, w/o any legislative authorization to do so. Fed ct was not applying a

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federal statute – it was making up law on its own. Brandeis says they can’t do that; you can apply federal law (statutes) if it exists, but can’t make up fed common law.

Bottom line on Erie: If a case is in fed ct on diversity, it’s supposed to come out the same as it would in the state ct (as close as possible) – because the only reason for having the fed ct involved is to eliminate bias. Everything else should be the same.

Fed ct should be a less-biased alternative to state ct, not a place to get a completely different result. Obviously it does matter… but the principle behind Erie is that they should be as close as possible.

Supplemental J situations – 1331 claim plus an accompanying state law claim – Federal judge should use federal common law to interpret the 1331 claim, and the appropriate state common law to interpret the supplemental state law claim.

How do you decide which state’s law to apply? Klaxon – Applying Erie, a federal ct sitting in diversity must apply the state choice-of-law rules of the state in which it

sits. o Only exception to that is a Piper situation – where there is a transfer. Suit filed in CA fed ct, 1404 transfer to

PA – PA ct should use CA choice of law rules (where suit was orig. properly filed.) If the suit was improperly filed in CA and was 1406’d to PA, then PA ct should use PA choice of law rule. (Making it

apply CA law would reward for filing in the wrong place by letting them use the original wrong ct’s more generous rules. Don’t want s to game the system.)

How does fed ct. determine what the content of state law is? After Erie – under 1332, Look to state’s highest court to see how they interpret the law, and fed ct is bound to interpret

it that way. o If no supreme ct decisions, look at intermediate appellate courts.o What about when there’s a conflict, or no decision? Fed ct can make its best guess, but should act like the

appropriate state ct in deciding. Predict how the issue WOULD be decided by the state supreme ct, if they were the ones ruling on it today.

Use applicable appellate cases, common law trends in the state, dicta in other SC holdings, state legislative developments, etc.

Procedure v. Substance: Typical example – Who has the burden of proof in a specific case? Or, which statute of limitations applies? Suppose

that state procedure allows 30 days to answer a complaint, but FRCP only allow 20 days. Or what about rules for providing notice/summons?

The problem is that, even though there’s no right to supersede state common law, there is a constitutional right to create and implement federal procedural rules for federal courts. (Article I, § 8 – create laws appropriate for exercising the power to create cts)

So look at whether the difference between state/federal law would actually encourage forum shopping or other uneven results.

o Something like personal service vs. “left at known residence” probably isn’t outcome-determinative enough to encourage s to pick a different court!

Four basic types of federal provisions that may conflict with state law: Federal Const. provision might mandate a federal court procedure that differs from state law (such as requiring a

unanimous jury verdict)o Constitution is always, always superior to state law. Always go w/ federal rule.

Federal statute may govern federal practice but conflict with state lawo “Arguably procedural” statutes related to the litigation process will trump state law, via Constitutional

authority of Congress to make those laws. Formal FRCP rule may conflict with state law (like the conflicting service of process rules)

o FRCP applies if it is valid as a procedural regulation (judicial process for enforcing rights and duties; justly administrating remedies. Almost always.

Federal judges may develop judicial practices (common law practice custom) that conflict with state law.o Will it affect the outcome of the case? Will it lead to forum shopping/uneven results? If so, probably

should use the state law.

How do we know when a real Erie problem arises? A federal court is adjudicating a state-created/state-based claim and a dispute arises as to whether:

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o the applicable law is procedural in nature, and therefore federal, o or is governed by state substantive law.

How do we analyze an Erie problem today?The Erie doctrine ONLY applies in diversity cases, because:

1. When a federal statute/Const provision/treaty appears to be relevant, o Does it cover the specific issue in dispute?o If it does, is it Constitutional?

Then apply federal law. (It’s a 1331 Federal Question case)

When you have a 1332 diversity case, you must apply FEDERAL procedure and STATE substantive law.2. Procedural issue? (FRCP almost always wins out.)

o Does it apply? (there will be a debate on whether it governs this specific issue)o Is there an actual conflict (direct opposition btw rule and state law), or can you read the FRCP narrowly so

that it doesn’t “conflict” with the state law standard, and apply both?o If it does, is it Constitutional? (SC has never found FRCP unconst. They come from the SC!)o Does it violate the Rules Enabling Act?

Is it simply procedural (§2072a), for the administration of a court? Or, would it fall under 28 USC §2072b – Rules may not abridge, enlarge or modify any substantive

right? If it’s inconsistent with stat, Const provision, or treaty, it would be modifying a subs. right.o Only one occasion when a FRCP has to yield to state law: violates “Twin Aims of Erie” – Hanna v.

Plumer. would encourage forum shopping (try to get a different outcome in fed ct), or would cause unfairness in the administration of the law. Outcome Determinative Test.  Fed Cts sitting in diversity should apply a state law that conflicts

with a federal practice when disregarding the state law would significantly affect the outcome of the litigation.

Differing statutes of limitations are an example that would FAIL and require the use of state law – that WOULD encourage forum shopping.

Differing service procedures probably would not. Will this create a significant difference in litigation opportunity?

3. State substantive law question? o Apply the law of the forum state. (Discourages forum shopping & uneven results.)o If there is no controlling law, follow the state’s highest court. (Fed ct. must be a “ventriloquist dummy” for

the state ct.)o If there is a horizontal choice of law issue, the federal judge must follow the forum state’s COL doctrine – as

per Klaxon. Designed to maintain the lack of incentive to forum-shop. COL rules are often one of two types: Lex loci delicti: Apply the law of the place where the injury occurred. States’ interest: What state has the most interest controlling the question at issue? Which one has

the most significant relationship to the events and parties? (MORE COMMON)

If the issue is PROCEDURAL – federal (FRCP) applies. If the issue is SUBSTANTIVE – state law applies.

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X. Pre-Trial DiscoveryA. How and why is discovery important?Since 1938, discovery has occupied a central role in the federal system as a counterbalance to notice pleading.

If we only require minimal pleading at the front end of a lawsuit, the expectation is that most of the info gathering on a case will occur at the discovery phase.

We give generous discovery allowances to let parties “fill out” the pleadings. We don’t want to throw out pleadings for “lack of disputed material facts” without knowing if there ARE any.

However, we also don’t want to allow too much discovery (both at a private matter of an individual lawsuit, and at a large-scale “social justice” level). Have to watch out for abuses on both sides.

But – it’s not as pervasive as it may seem. In fact, only about half of cases even involve discovery. Typical case has relatively little discovery, conducted at proportionate levels of cost.

Judges are often unable/unwilling to take a very active role in a discovery dispute. It’s the lawyer’s job to call the judge’s attention to something going wrong. But we should do what we can to stay out of court altogether on discovery issues. Parties can usually work it out. Only go to court w/ it if you really have to.

Discovery is about building your case in a very targeted way. Don’t just ask any old question. Ask targeted questions so that you can see/envision what it’s going to look like when you cut and paste it into your argument/motion for SJ/cross-examination at trial/etc.

You want to ask pointed, direct questions. Get to the meat. Get your soundbites.

B. FRCP Rules for Discovery ProcedureRule 26: Discovery generally

Mandatory initial disclosures under 26(a): o Basic idea is that there ought to be certain categories of things that you always get from the other side, and

there shouldn’t be any objections to that. Names and addresses of all people likely to have discoverable information All documents that may be used to support their defenses Computations of damages Insurance agreements Expert witness information

o Cost – least expensive. Form prepared w/ standard questions.o Objections are highly disfavored.o You must make these within 14 days of the Rule 26(f) conference. (Both sides must start putting this

information together VERY quickly. Picks up the pace.) Rule 26(b) Limitations

o B1 – Parties may obtain discovery regarding any matter, NOT PRIVILEGED, that is relevant to the claim or defense of any party.

Includes existence/description/etc of any tangible things, and the identity and location of people having knowledge of any discoverable matter.

For good cause, the court can order discovery of any matter relevant to the subject matter involved in the action. (This is a fall-back that lets the judge open up what is allowed)

Relevant information need not be admissible at trial if appears reasonably calculated to lead to more adm. evidence.

o B2 – Courts can limit discovery if it is: (i) unreasonably cumulative/duplicative, (ii) party seeking discovery should already have this info, or (iii) burden or expense of the proposed discovery outweighs its likely benefit.

o B3 (pertains to work product) – Other party can get materials prepared by the other party only upon showing of “substantial need” for the materials and “undue hardship” to get them another way.

If the ct does turn this info over, it must protect against disclosure of the mental impressions/theories of the other party’s lawyers.

o B5 – Claims of Privilege or Protection – Party shall make the claim (of privilege) expressly and shall describe the nature of the documents, comm, or things not produced/disclosed in a manner that, without revealing info privileged, will enable other parties to assess the applicability of the privilege.

Rule 26(c) Protective Orders – parties can move for court orders to protect them from discovery on certain issueso Can be for various reasons, including burden and expense of producing information, use of discovery to

annoy an opponent, etc.o Can do various things – don’t have the discovery, limit it, have it a different way, etc

Rule 26(d) Timing/Sequence of Discovery – Rule 26f conference is required before any formal disc. begins.

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Rule 26(e) Supplementation of Disclosures – E1/2 requires parties to supplement or amend their disclosures/responses if new information renders the old disclosure/response incomplete or incorrect, and the other party would not know of the new info.

o That means – if the info DID come out in another person’s deposition, or some other way that the other party now HAS it – you do NOT have to update.

Rule 26(f) Conference of Parties – parties must “as soon as practicable” meet to: o consider settlemento develop a proposed discovery plano talk about e-discovery issueso It’s better for parties to meet in person and try to work these things out, rather than do this via email or

letters. Rule 26g2 – Signing of disclosures, requests, etc (looks a lot like rule 11!)

o Atty has to sign every discovery request, response or objection (if party is rep’d by one). Signature constitutes certification that “to best of signer’s knowledge, formed after reas. inquiry”

It’s consistent with rules and warranted by existing law/good faith argument for change in the law Not for any improper purpose (to harass, cause delay or unnec. Expense) Not unreasonable or unduly burdensome/expensive.

o If ct finds something WAS – then sanctions

Timing under Rule 26: Suit Filed Defendant answers 26(f) Conference of the Parties – discuss discovery/case mgmt plan (Must occur before any 26d discovery) Within 14 days of 26(f) conference/finishing discussions – must give 26(a) Initial Mandatory Disclosures Within 21 days before 16(b) conference – must give court the 26(f) joint statement of the discovery plan. Rule 16(b) Conference w/ the Court – talk w/ judge about discovery/case mgmt plan and where you can’t agree.

(Takes place no later than 90 days after defendant answers and 120 days after suit was filed.

Rule 27: Depositions before action Intended to “perpetuate testimony” only; to prevent a failure or delay of justice

o I.e., if you don’t get the testimony now, you’ll lose the chance forever – witness is about to die, or about to leave the ct’s jurisdictional subpoena reach

o NOT meant for investigating the facts in advance of drafting a complaint – you need to know the substance of the evidence you are seeking to perpetuate.

o But – MIKA – it might be authorized when the suit would otherwise be barred by the requirements of Rule 11 (i.e., you just can’t tell yet which party is the one you need to sue, and you know it’s not both)

Typifies the narrow scope of authority given to private citizens to conduct presuit discovery If taken according to the FRCP rules, a Rule 27 depo can later be admitted as evidence.

Rule 37: Sanctions and Motions to Compel All of the sanctions basically amount to “reasonable expenses including attorney fees.” A – Motions to compel discovery/disclosure and sanctions for not giving it up in the first place

o A2A – if a party fails to make a disclosure ordered by 26a, any other party may move to compel disclosure and go for sanctions

o A2B – If a deponent fails to answer a question, or a corporation or other entity fails to make a designation under 30b6 or 31a, or a party fails to answer an interrogatory/etc, discovery party can move for order compelling an answer.

Must include a certification that the movant has in good faith tried to confer with the person to secure the info.

o A3 – evasive/incomplete disclosure, answer, response – Treated as a failure to answer.o A4: Expenses and Sanctions

A –– Successful motions – ct shall require the bad party or deponent or atty (or both) to pay the moving party reasonable expenses in making the motion

B – Failed motions – ct can enter a protective order and shall require moving party to pay reas. expenses of other party

C – Half & half – split expenses as appropriate B – Failure to comply with a court order

o 1 – in district where depo is taken – failure to be sworn or to answer can be found contempt of cto 37b2 – sanctions by court in which action is pending – ct can make these orders:

A – say facts will be taken as established, in other party’s favor

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B – refuse to allow bad party to support or oppose certain claims or defenses, or enter certain evidence

C – Strike out pleadings or parts of them; stop proceedings until obeyed; dismiss the action; render default judgment against bad party

D – Contempt of court Or, atty fees/reas. expenses caused by the failure

C – Failure to disclose; false or misleading disclosure; failure to admit (and failure to UPDATE past responses per 26e2)

o C1 – Unless it was harmless, your failure to disclose/update info means you can’t use it as evidence either. Also, ct can impose sanctions

o C2 – Failure to admit – if other pty proves it’s true later, you may have to pay atty fees (except for given excuses, just read rule)

D – Failure to attend deposition or serve answers to interrogatorieso Ct can use 37b2 a-c sanctions, or impose reas. fees/expenses

G – Failure to participate in framing a discovery plan o Again – reas. expenses/atty fees caused by failure.

More Basics: Interrogatories/discovery as to personal jurisdiction ARE ok. They are at least relevant to a “jurisdictional defense,”

if one party is saying there’s not PJ. What if has made a 12b2 lack of PJ? Still has to continue with discovery, until it’s ruled on. BUT – probably a

good idea to ask for a protective order to stay discovery on the merits until PJ is settled.

C. Conducting Informal DiscoveryParties don’t need permission for informal discovery – a lot of information is publicly available, especially via the Internet.

Much less costly than formal discovery. Examples: Online research into companies, etc; looking at police reports and gov’t records (online or FOIA); talking

to willing witnesses; newspaper/media searches. Rule 27 FRCP (Rule 202 TRCP) – pre-suit depositions.

o Federal version is very limited; can only be used to perpetuate testimony that would be lost otherwise (someone dying, etc).

o Texas rule allows much more expansive activities. You can use it to dig around and see if you even have a claim.

D. Formal Discovery DevicesFormal discovery CANNOT commence, under 26(d), until the Rule 26(f) meeting of the parties has occurred.

Depositions (Rule 30)o Sworn and recorded testimony.o Limited to one day of seven hours per witness. o No more than 10 depositions per side unless otherwise agreed. (You would have to go in front of the judge

to get an allowance for this.) Examination and cross-ex allowed.

o Parties or nonparties may be deposed. If it’s a non-party, you must subpoena them.o Important because it fixes witnesses’ testimony, both for establishing relevant facts and for potential

impeachment.o Most expensive discovery device, but can often provide the most significant yield – off-guard statements, etc.o 30b – have to serve notice to ALL parties of who’s being deposed, how, and when

For nonparties – just get a Rule 45 subpoena. That requires inclusion of fees in the packet.o 30c – (rulings on) Objections are reserved until trial, unless they go to the form of the question (or etc)

that would be curable if immediately stated. (If it is a curable objection, you have to make it during the depo or you waive it – Rule 32.)

Witness normally must answer even if there IS an objection!o 30d1 – Objections during depositions

You can only tell a witness not to answer when necessary to preserve a privilege, enforce a court-ordered limitation, or present a motion under 30d4.

You can raise other objections too, but witness still has to answer if not as above. Sample curable objections: unclear question, misleading question, already answered,

misstates prior testimony

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Objections shall be stated “concisely and in a non-argumentative and non-suggestive manner” – you can’t coach via your objections.

o 30d4 – Motions to stop deposition Requires showing that the examination is being conducted in bad faith or to annoy, embarrass or

oppress the deponent or party If the deposing lawyer has a problem, better not go over – they need to go to ct with their 30d4

motion too. NOT making it can waive your right to it!o Refreshed Recollection/Rule 612 – Generally – DO NOT let your witness review privileged or protected

materials before a deposition, because you’ll probably have to produce them. Rule 612 – if a witness uses a writing to refresh memory for the purpose of testifying, either while

testifying or BEFORE (if ct determines it is necessary in interests of justice), the adverse party is entitled to have the writing produced at the hearing!

And also inspect it, cross-ex witness on it, and submit it as evidence. A testifying party who reviews documents protected by the atty-client privilege WAIVES THE

PRIVILEGE and must produce the documents. Probably doesn’t extend to simple skimming before depo though. Newer common-law trend – this should only apply if it’s the witness’s own communication to

counsel? Not as harsh? But don’t count on it. 30b6 Corporate Rep Depos :

o When you don’t know who at the corporation should be deposed on the subject – this rule makes THEM designate one or more appropriate people.

You notice the depo of the organization and specify the matters on which examination is requested. The notice need only designate with reasonable particularity the topics for examination.

“And other related matters” = NOT particular enough! If you see that, move to quash or move for protective order.

Paparelli – 30b6 implies limit that deposer won’t get you in with legitmate notice, then ask you about any old thing he wants.

o In that case, object and allow witness to answer, OR terminate depo w/ a 30d4 motion – try to get protective order.

But – OTHER cases have implied that they CAN ask other stuff – witness might just have to say “I don’t know,” just as an ordinary witness would.

30b6 depos only count as ONE deposition – even if the corp. designates multiple representatives!

o 30b6 representatives must testify as to “matters known or reasonably available to the organization.” When the corporation designates its representatives, they set forth, for each person designated, the

matters on which they’ll testify (say Witness 1 will testify on matters from 1980-90, and Witness 2 from 1990-present).

They must be prepared to give complete, knowledgeable and binding answers. “Matters known” includes beliefs and opinions of the organization with respect to its position in the

litigation. If the only person available is the organization’s expert, atty, or investigator, then the corporation

HAS to use them. And they can’t claim privilege to refuse to disclose facts.

o The fact that a corporation doesn’t employ anyone with current knowledge is not an excuse. They have to prepare someone, to the extent the info is reasonably available.

o The 30b6 rep is generally entitled to be deposed at the corp’s principal place of business.o Sanctions – Producing an unprepared 30b6 witness may be tantamount to a non-appearance, inviting

sanctions.o Compared to 30b1 managers, directors, officers – You can still do both.

30b1 depos limit facts to those known by the witness, not the whole corporation. If the corp knows something, but the 30b1 witness does not, the depo is a waste.

30b1 people who are officers/directors/managing agents – testimony counts “as if they were a party,” so those can be damaging.

Depositions upon written questions (Rule 31)o Can usually be done without leave of court, except in special circumstances (in prison, already deposed,

results in more than 10 depositions) Interrogatories (Rule 33)

o May only be sent to parties of the lawsuit

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o “Most of the time they are worthless” because the culture is that, even though the client signs them, it’s the lawyer who writes them. And the lawyer has 30 days to perfect the answers. You’re not going to get anything meaningful there for your side.

o Best purpose is generally to use scope questions to get “a view of the forest.” May help you focus the inquiries later.

o May not be a great idea to do this in the beginning, because you don’t know about what you need to ask yet!o Limited amount – no more than 25 questions can be sent.o Count each individual question; if a question has two or more subparts, each of which is a stand-alone

question, then the subparts count toward the total.o Main benefit – parties must swear their answers are trueo Expense involves tailoring to specific facts of caseo Party signs as to the facts and lawyer signs as to any legal questions/objectionso Parties must respond w/in 30 days of service.o 33d – Option to Produce Business Records – IF the burden would be substantially the same for either party in

ascertaining the answer, you can answer by specifying the records and let other party have a chance to come & go through them.

Should be in sufficient detail to let that party know where to look, “as readily as the party served.” The wiser option is to just do it yourself. You might give them extra ammo on other issues! Plus,

you’ll have to go through it anyway, as you’ll want to know what they found. Requests for production of documents and other tangible things (Rule 34)

o Unlimited in numbero May be sent to parties and nonparties (but may have to invoke Rule 45 subpoena power for nonparties)

For nonparties – you can combine this and a Rule 30 depo in your Rule 45 subpoena.o Not just documents – tangible things too, like the car that crashed.

But they must be in the party served’s possession, custody or control.o VERY important – you usually build your whole case on the documents, and you need them first before

you can do anything confidently. You need the documents to know the dispute and know what actually happened. The lawyers who know the documents the best are almost always the lawyers who are on top of the strategic decision-making.

o Documents can’t be altered and are a set-in-stone version of what happened.o Email – a new issue. “People say the darnedest things.” Lots of strategy involved re: getting at the juicy

stuff out there electronically – as well as advising your clients to QUIT doing this.o What kind of documents can be sought? o Expense involves tailoring to specific facts of caseo Parties must respond w/in 30 days of service.o Parties can also inspect places, such as the spot where an accident took place, or conduct tests on

relevant items of evidence. Physical and mental examinations (Rule 35)

o Requires court order; may only be made on motion for good cause shown.o Mental or physical condition of the person must be in controversy.o If an exam is ordered, examined party can request a copy (and other side has to provide it). In response,

examined party has to give copy of any reports from her own doc. Requests for admission (Rule 36)

o Used to narrow the scope of dispute – “Admit that we entered the contract on XXX date.” “Admit that you breached section 5 of your contract.”

o Helps hone the issue; maybe the party agrees they breached the contract, but wants to argue about why. Now that’s all you have to deal with.

o If you admit something, it’s “forever true.” It’s off the table.o Three choices – admit, deny, “I lack sufficient info/knowledge to admit or deny” (Very close to your options

in answering a pleading.)o Why are they dangerous? Because you can’t ignore them. If you don’t answer a question, it is deemed to be

admitted against you, just like what happens in pleading answers.o Unlimited in number.o Can only be sent to parties.o Must respond w/in 30 days.

E. E-DiscoveryThree big components to the new e-discovery rules:

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26(b)2 (undue burden) – describes how parties do not have to come up with discovery materials they identify as not reasonably accessible because of undue burden or cost. (Then the court decides what to do – compel, split costs, etc – after looking at requesting party’s reason for needing it.)

o What does it mean to say “undue burden or cost”? Some sense of proportionality – not huge expenses for a small lawsuit; proportionality in terms of importance/likelihood of usefulness; privacy/ability to separate out material not relevant to case; “reasonably accessible” – electronic and knowledge-wise.

The vision is that you’ll produce items in stages (easiest to hardest) – give people a chance to see what’s been produced (reasonably) before they assume it’s not enough. They look at that first and then decide if they need more. (Lawyers should talk that out in 26f conference.)

Be careful what you ask for/how you act, because the other side do that too. Catch – the more retrieval you’ve already done, the less burdensome it is on you if other side asks

for it.o What if they just keep making requests? File for a protective order. But you really don’t know if they are

using it or not.o What does “good cause” mean?o What kind of conditions might a court specify? Split costs,

26(b)5 (Privilege) – If you accidentally get work-product material, you can’t do anything with it and you should tell them; if you don’t agree, go to the court; hang on to it/don’t destroy it until it can be returned.

o It’s often not worth the effort to look within every single document, so people just give big stacks of documents over.

o This is designed to avoid the risk of “privilege waiver.” 37f (Regular destruction of data) – No sanctions for failing to provide electronically stored info lost as a result of the

“routine, good-faith” operation of an electronic information system. o “Safe harbor provision” designed to avoid punishing people who are operating under a tech/maintenance

system that’s independent of litigation.o Raises a lot of questions; doesn’t it encourage people to have frequent “routine” delete devices? Most likely

to be a problem w/ companies that are engaged in high-risk businesses (they already anticipate litigation, so they act preemptively)

o Whatever document-retention policies you have ordinarily, you’d probably better STOP destroying things once litigation begins. (It’s not really good faith if you know that relevant evidence is going away.) You minimize the bad press later if you just stop the destruction early.

What is covered by electronic discovery? E-mail and computer files Items on computer backup tapes Dvds/cds

Zubulake v. UBS – Electronic material is just as discoverable as paper material. So the presumption is still that the responding party must bear the expense of complying, even though 34 mentions splitting costs.

Cost-shifting should only be considered when e-discovery imposes ‘undue burden or expense’ on responding party. Undue = outweighs its likely benefit.

This often turns on which format the info is kept in. Factors to think about – specificity of request (specific items, or just digging?); availability of info from other sources;

total cost compared to AIC; total cost compared to each party’s resources; relative ability of each party to control costs; importance of the issues at stake; relative benefits to parties of getting the info.

F. Work Product ExemptionWork product is exempted from discovery, but is not technically a “privilege.”

Protects the thoughts and strategies that a lawyer has while preparing a case. Covers the “mental impressions” but not the facts themselves. (Notes from an interview are covered; a tape of the interview w/ no commentary might not be.)

o Example – if client mails you the murder weapon, that’s not covered, because that is a FACT, not a mental impression.

Doesn’t necessarily involve communication with anyone. Has to be in anticipation of litigation. Objective/subjective standard – has to be objectively reasonable that a person

would expect a lawsuit, and you had to actually think it (w/ some proof to that effect). Has to be by or for the party and his representative. Can atty tell someone ELSE to do it, like a private investigator?

26b3 includes “attorney or other representative of a party” if it’s opinions, legal theories, etc.o Texas has an even tighter WP rule (protecting attorneys). o So Erie question – should district court use a state standard or the FRCP? It’s likely that the federal rule

would be used under Erie analysis.

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Subject to an exception – “Substantial need and hardship” – sometimes other side can get it anyway. (Different from A/C because A/C is totally exempt.) Witness has died, witness is outside of jurisdiction, impeachment purposes (witness may be lying on the stand).

The work product exemption does not prevent FACTS from being discovered, even if they are learned through trial preparation.

o Say the company lawyer asked around w/ many employees about who had information on something. If a later interrogatory asks him WHO has info on that issue, lawyer has to tell!

“Four Questions to Ask” per article : (refers to documents but still useful)o Is the document a confidential document or memo?

Or was it something that was disclosed to an adversary?o Was it prepared by or at the direction of an attorney?o Does it reveal the atty’s mental impressions, opinions, conclusions, or legal theories?o Was it prepared in anticipation of litigation or for trial?

Hickman v. Taylor (1947) – Key WP case – Tugboat sinks. Before any litigation, tugboat co.’s attorney interviewed survivors/witnesses and took notes. Then s wanted all of his transcripts of the interviews. Ct says no, you can’t have those, because that would show you atty’s thoughts/thought processes – plus, it’s readily available. There may be other circumstances where this could be appropriate, like if a witness had died and that’s the only way you could get the evidence, but there’s no need for it here.

Rule 26b3: Trial Preparation Materials Subject to b4 (experts), a party may obtain discovery of documents and other tangible things otherwise discoverable

under b1 and prepared in anticipation of litigation or for trial by /for another party or its representative – ONLY upon a showing of:

o substantial need of the materials in preparation of own case ANDo unable without undue hardship to obtain the substantial equivalent of the materials by other means.

In ordering discovery, ct shall “protect against disclosure of the mental impressions, conclusions, opinions or legal theories” of the atty or other representative.

26(b)3 partially codifies Hickman. But it says “documents and tangible things.” So does it cover non-tangible things like a deposition (asking lawyer about what witness said)? 26b3 would seem not to cover it on a strict reading. (But you can say even if 26b3 doesn’t, Hickman does cover it. Use the common law.)

Generally, courts will be strict about this. They don’t want to turn over people’s work product.

26b3 basically creates 3 categories: Documents prepared in anticipation of litigation that contain information that can be reasonably obtained through

other means – discovery is barred Requesting party has demonstrated substantial need and it can’t be gotten elsewhere without undue hardship – ct may

order production Opposing counsel’s thought process in preparing a case, such as legal theories or litigation strategy -- discovery is

barred.

Rule 26b4: Experts What about experts? Well, there’s two flavors – consulting experts and testifying experts.

o Testifying ones are easy, because you have clearly hired them to testify. Rule 26a2 requires disclosure of the testifying experts within 90 days of filing suit; they can be

deposed too.o But a CE is someone that you hire to give YOU advice behind the scenes – they don’t testify. A CE’s help

IS protected – either under WP doctrine (rep of atty to help strategize), or you could call it a “CE privilege.” Usually, the only way you would get CE’s material into court is if TE read it. 26b4b – a party may only seek discovery concerning non-testifying experts under a showing of

“exceptional circumstances” where party seeking discovery to obtain facts or opinions on the same subject by other means.

26b4b advisory notes – you can only get a list of “experts consulted” that includes formally consulted ones. “Informally consulted ones” don’t count, so you can expert shop.

G. Attorney-Client PrivilegeA-C privilege makes items exempt from discovery (like dr-patient, husband-wife, clergy-parishioner)

The idea behind this privilege is to protect communications between attorneys and their clients if it’s for the purpose of giving or receiving legal advice.

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A relationship must actually be in place for this to count. (But, atty-client relationship probably still does exist if it’s just an initial consultation; we want to encourage open communication and consideration of who the best lawyer will be)

The mere fact that the practitioner is an attorney will not create a valid attorney-client privilege with respect to a communication, for example, that involves business or accounting advice rather than legal advice.

When relationship ends – it’s a good idea to send written confirmation of that. Client has total control over atty-client privilege. IT only protects what you TOLD the lawyer – not the facts themselves. If I tell my lawyer I had 8 beers, then

drove home and got in a wreck, that communication is privileged, but I will still have to answer honestly if asked about whether I drove drunk!

o What is privileged: “What did you tell your attorney?” Don’t have to answer that.o Otherwise, defendants could immunize everything they know by telling it to an attorney!o Likewise, if a lawyer knows a fact about the case, he can’t perjure himself by disregarding those facts.

“Four Questions to Ask” per article : (refers to documents but still useful)o Is the document a confidential communication?

Or has it been disseminated to third parties?o Is the communication made for the purpose of facilitating the rendition of legal services?

Or could it have been made by any business person in the office?o Is the communication made by an attorney acting in his or her capacity as such?o Is the communication made to the client?

WAIVER -- privilege can be waived by client, or accidentally by atty. Not keeping info confidential (inadvertent disclosure) will waive it, unless you can show due care/a real accident.

o Government prosecutors – KPMG case; gov’t prosecutor insisted KPMG waive privilege to get a “good cooperation” designation (Judge said no). Thompson memo insisted that prosecutors use this weapon in the arsenal. There has been a push in last 10 yrs to require this more.

o Selective Waiver – Whenever someone turns something over, there’s a chance that it has waived privilege. Idea behind selective waiver is, does it make sense that when you HAVE to turn something over, like in the auditing context, you completely waive your privileges? Selective = only waived for certain purposes. But not all courts recognize this.

o Proposed FRE 502(c) – This rule would establish selective waiver across the board. “Presumption is that you can selectively give someone something without waiving the privilege more generally.”

Upjohn v. U.S. – The issue here is who the “client” is; do we count lower employees in there? Upjohn had conducted an internal investigation via a questionnaire, marked “highly confidential,” given to many upper and lower employees. Gov’t said atty-client privilege only includes higher-level people in the “control group.”

o Court uses “subject matter” test – any employee can count if the communication is relevant to the subject matter of a legal issue.

o It also has to be private/confidential. (Did you take reasonable precautions to ensure the info would be kept private? They did here.)

o The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the atty. Gov’t was free to question the employees themselves.

Don’t forget – 26b5 – you have to assert privilege and describe the nature of comm/why it is privileged.

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XI. Judgment as a Matter of Law – SUMMARY JUDGMENTA. Summary Judgment BasicsIf people don’t win on the SJ motion, how it gets treated is very indicative of how things will ultimately turn out in a case.

Two ways SJ is appropriate: No legal claim (there can’t be a “material fact” issue if there’s no legal question/claim!)

o P has no evidence to support his claim; can’t meet the elements he alleged, etc No factual issue to be decided by a jury (there’s no fact issue, so let’s end the case now)

o / agree on the facts, but not what they mean – they’ll both move for SJ arguing that the legal issue should go their way.

Why have SJ at all? Sj is designed to allow early resolution of cases in which the plaintiff meets the minimal burden to plead the elements

of a compensable claim, but cannot prove one or more of those elements. SJ is entry of judgment by the court in favor of one side, without trial. The point is to “pierce the pleadings and assess the proof to see if there is a genuine need for trial.” It’s appropriate Technical answer – when there’s no question of fact, there is nothing for a jury to decide; questions of law are for a

judge to decide. When you realize this upon further consideration, there’s no point letting it drag out and get to a jury. Same reason we have Rule 50 – judgment as a matter of law. Case has gone to trial; has put out all his

evidence/finished his case, then says “We’ve listened to all this and there’s no factual dispute as to XYZ, so take this away from the jury.” Standard is identical to Rule 56, but this happens at trial instead of before.

What’s the reason for a “robust” SJ rule? has burden of proof; if s can’t carry it, they are wasting court’s time. (Efficiency argument)

Also – sometimes we just don’t trust juries to make the right decision. Juries aren’t always “reasonable.” But – if we are too robust w/ SJ, judges become gatekeepers in a way they are not supposed to be. They are weighing

the evidence TOO much.o We must balance the interests here – efficiency vs. access to a jury.

Rule 56 A – Claimant may move for SJ at any time after 20 days after filing. B – Defending party may move for SJ at any time. C – SJ may be rendered if the evidence on file, together with the SJ affidavits, show that there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of law.o The inquiry here is, does the have enough evidence to get to a jury? Is there enough evidence that a

“reasonable jury” could find for the ? D – Partial SJ – court can determine that some facts are in controversy and some are not, and therefore strike out some

parts/issues of the case.o “Most overlooked rule of value” in FRCP – if you dispose of one claim; may reduce damages (such as

knocking out punitives); knock out one or more parties. o Doesn’t win the whole case but “makes your life a lot easier”o By trimming the fat, you can help get your client in a better position to settle

E – Supporting and opposing affidavits shall be made on personal knowledge, set forth such facts as would be admissible in evidence, and show the party is competent to testify.

o Affidavits can be supplemented by further evidence.o After a SJ motion, the adverse party’s response must set forth specific facts showing there is a genuine

issue of fact for trial. F – If it’s too early (in discovery, etc) and the adverse party doesn’t have enough evidence to show the issue, the court

can order a continuance or deny the SJ motion for now.o ’s decision to wait too long to move for SJ can help a judge say, let’s just leave this for the jury because

then there’s more insulation on the decision.o But if does it too fast, judge probably won’t do it yet.o At close of discovery is a good time to move for SJ. Almost never premature at that point. But if you need

to do it faster, just have a good argument for that. G – provides for sanctions for SJ motions “made in bad faith or solely for the purpose of delay.”

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B. Standards for Summary Judgment MotionsAdickes – regarded civil rights question; whether black restaurant patrons could be denied the right to sit down and eat. (s arrested for “loitering” after being told to leave.) Question turned on whether there were police acting in conspiracy with the restaurant. At the time, the store wasn’t prohibited from denying service, but police/municipality couldn’t do that. Pre-trial, when moved for SJ, they had the burden of proof in the negative – proof that police were not in the store – although burden would be on s at trial to prove cops WERE in the store.

Celotex v. Catrett – What is the burden on the movant at summary judgment? sues 15 companies for wrongful-death; claims her husband was exposed to Celotex asbestos. Celotex moves for SJ, saying that will not be able to offer any evidence that Catrett was exposed to asbestos as a result of working at any Celotex job site.

Under Adickes, it would appear that bears the burden of PROVING that at this time. then offers three pieces of evidence that she says prove Catrett was exposed. (Deposition transcript, letters) Trial ct grants SJ; he found those items insufficient. Basically thought all of that was inadmissible for one reason or

another (hearsay, other deficiencies). AC reverses; didn’t produce any evidence to support his SJ motion. (Cites Adickes.) So SJ was improperly

granted.o AC – we don’t get to non-movant’s burden at all until movant has shown enough. They would need to go

through all relevant evidence and show why can’t prove. SC reverses (grants SJ again) – says all a moving party needs to do is show/point out that there is a lack of

evidence that other party has brought. (NOT to produce their own evidence showing the absence of a fact issue.) Point out flaw vs. bring own evidence.

o White’s concurrence – says “it’s not enough for movant to make a conclusory assertion.” It’s not clear that ct REALLY says “all you have to do is point out a flaw.”

o Clear view of Celotex nonetheless is that s only need to do the minimum.o Issue at this stage of the case is, did the /movant meet his initial burden. If fails to meet his burden,

we never reach the stage where the nonmovant has to produce. (TC/SC are both saying did meet that burden.)

Burden on Movant for SJ After Celotex (Movant is ): If the movant does NOT bear the burden of proof at trial (usually ) – then all the movant has to do is “point out” a

lack of evidence to prove ’s claim.o The movant only has to attack one essential element of a ’s claim.

Then what does the have to do? Introduce some evidence on which a reasonable jury could rule for them on each element that complained about.

o In theory that sounds like a low threshold, but in reality it is high because of two reasons: 1) you don’t know in advance what is persuasive to the court, so you better introduce a lot, and 2) judges have a lot of leeway in saying “No reasonable jury could find this way” and taking it out

of the jury’s hands. (“Robust gatekeeper” function)o If the can’t produce countervailing evidence, he has not demonstrated that there is a factual dispute for the

jury to try. A jury would have no legitimate basis on which to find for him, so we take it out of their hands. If moves for SJ using an affirmative defense (like contributory negligence), for which the bears the burden of

proof, has to introduce evidence to that effect.

Burden on Movant for SJ (if Movant is ): If the SJ movant DOES bear the burden of proof at trial, then the movant () has to prove all elements of the case,

and that there are no material facts in dispute on each element.o If the (non-movant) can show there is a material fact in dispute on any element, SJ can’t stand.

Why is it harder for the burden-bearing party to get SJ? Because they have to prove all the elements for SJ, while the only has to disprove one of the elements.

OR – Partial SJ for -- can just get SJ on one or more elements, by showing there are no material facts in dispute on those particular elements.

o Narrows things down for trial – now only has to worry about proving the other elements.

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What evidence does the non-movant have to offer? According to FRCP, doesn’t have to be in an admissible form (But in TX, it does!) Has to be based on personal knowledge (if it’s what other people say, it has to be a statement from them) What’s the problem with filing an affidavit saying “I have a witness who said he saw run the red light.” But in

court, if said this, it would be hearsay. However, if the witness himself is available to testify, that would be admissible. So does ’s affidavit raise a genuine issue of material fact?

o If the says nothing about the affidavit (doesn’t object on inadmissibility) and doesn’t say that the witness will never be able to testify, then the court can take this affidavit – even though it’s based on inadm. Evidence, and say “Ok, because the witness could testify.”

o If the does make an objection – “this isn’t a real witness, etc” – then the has a problem, because the way he set it up (not attaching witness’s own testimony) isn’t admissible.

The general idea here is that / need to show they have ACCESS to evidence that would be admissible.o Admissible = sufficiently reliable to allow the jury to hear it at trialo Why? Because that’s the whole point – we’re seeing if this should get to a jury at all. If they don’t have any

admissible evidence to support their point, nothing for jury to look at anyway. Non-movant should come forward with all admissible evidence that may demonstrate an issue of material fact.

“More than a scintilla” is required. (This also creates a record for appeal!) Response must contain a roadmap of the relevant evidence on record that raises material issues.

o Be specific, use plenty of references and citations to the relevant facts on record. If the factual record is not sufficiently developed, the NM can make a 56F motion to request add’l discovery.

o BUT – non-movant must be in a position to detail what add’l specific evidence it would discover if given more time.

HYPOS:Two people in car; driver is drunk but passenger isn’t. Driver stays in car and is not within sight of anyone in C-store. Passenger goes in and buys beer. Driver drinks more beer. Driver then hits a car. sues convenience store, claiming it was negligent to serve drunk driver. moves for summary judgment – 1. We were not negligent because we sold the beer to a sober person. Never saw drunk guy or knew about him at all. 2. No causation, because we sold to a passenger, not a driver. Passenger is the intervening cause here by giving beer to driver.

Can move for SJ? How? Yes -- can’t show any evidence that we were negligent, because we didn’t sell to driver/drunk person. We made a legal sale. Also , you have no causation, because we didn’t sell anything to the guy who caused the accident.

“Just say ‘there is no evidence that s can offer to show we were negligent. So show us your evidence!’” Then, would have to try to prove wrong… come forward with some evidence that there WAS a negligent

act. The point of Celotex is that we have to ask the question – did meet burden at SJ. Celotex says you can meet your

burden by basically doing nothing.

Employee accused by Randall’s of stealing stuff from the store. decides to file a lawsuit saying that wasn’t true, and she suffered NIED. (TX does not have NIED.) In ADDITION to 12b6, Rule 56 is available to dismiss that claim. No cause of action.

What about if she sues for IIED, which is recognized in TX, but you have to prove “extreme and outrageous” conduct. moves for SJ and says “there’s no evidence can introduce that we were extreme/outrageous.

o met burden? Yes. Basically, all they have to do is say it.o But this looks like a case where, if we let the judge exercise her gatekeeper function, there seems to be a

greater threat that the judge is stepping into the province of a jury. Different here because instead of no evidence, we have iffy evidence where jury would have to make a judgment call.

o But – there’s a big point of view that says it’s ok for judge to do this anyway. A lot of judges are more suspect/less willing to let these cases go forward. So they’ll use the “No reasonable jury would find this way.” (Not “no one” would find this way – just “no reasonable jury.”)

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C. The Judge as Gatekeeper (Expert Testimony)Daubert & Kumho Tire:

Daubert – admissibility of scientific expert testimony is admissible ONLY if it is relevant and reliable. o Fed. Rules of Evidence assign to the trial judge the task of ensuring this (relevant/reliable).o Factors in evaluating: testing, peer review, error rates, acceptedness in sci. community

Any countervailing factors operating in favor of admissibility? Kumho Tire – s’ decedent was killed after a tire blew up. They used an expert in tire failure analysis to argue that

the failure was caused by manufacture/design, not other problem (or negligence). Tire co moved to exclude the expert testimony because his methodology failed “reliability” analysis.

o Gatekeeping also applies to testimony based on technical and other specialized knowledge.o Court here agreed that the methodology was not reliable.

The issue wasn’t the reasonableness IN GENERAL of using a visual and tactile inspection, but the reasonableness of that approach PLUS expert’s analysis to come to a conclusion in this particular matter.

In this case, there were four signs of “tire abuse,” and at least 2 were present, but the expert was still trying to say the tire shouldn’t have blown up.

Puts the in the position of coming forward w/ evidence supporting scientific testimony where the judge is now more of a gatekeeper

It’s not about challenging the credibility of the expert (bias, etc) – that’s a jury’s job. It’s about whether his testimony (opinions, conclusions, methodology) are reliable in and of themselves. Reliability of the work done. Is it good science or junk science?

Gives judges the authority and the tools to evaluate whether ’s experts are reliable.o This is discretionary authority and reviewable for “abuse of discretion” on appeal.

If the expert is stricken, then has no testimony supporting case, so he can’t win.o So movants will usually file a “Daubert challenge” and then if the expert is stricken, file for SJ.o One lesson for s is that you don’t rely on one expert!

Also, you have to work with your experts a lot before bringing them into the courtroom. You want them to give more definite conclusions. Judges go pretty far with this authority in a lot of areas.

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XIII. PreclusionTalking about only one issue = issue preclusion/collateral estoppel.Talking about the total outcome = claim preclusion/res judicata.

A. Claim Preclusion – Res Judicata Precludes a party from litigating a claim that could have been litigated in another case.

o Prevents double recovery – encourages plaintiffs to bring all their claims at once.o No reason to let people have endless tries over and overo Promotes efficiency in the judicial systemo Protects defendants’ interest in not getting sued over and over (finality of judgments)

RJ is an affirmative defense -- must raise it and assert that the second action is barred. If two cases are running concurrently, neither is preclusive until one is decided.

Requirements for a claim to be precluded: Same party against same defendant

o Or their privities or predecessors Same claim

o Defined pragmatically and broadly – “same transaction test” ---- CNOF, basically. Mirrors the “same transaction” test in JOINDER! If you had the right to join it, bc same

transaction, then you should have. But if you couldn’t have joined it, bc NOT same transaction, then we won’t preclude your case.

o “A cause of action consists of a single core of operative facts which give rise to a remedy.”o Example – In a car accident, property damage and personal injury claims are both part of the same

transaction – have to bring them both at once (can’t later). Valid final judgment on the merits in the first case

o Under 41b, we are going to have a judgment on the merits unless it’s dismissed for a jurisdictional failure (smj, pj) or venue.

o Includes a default judgment Why? Because the parties are no longer able to argue the merits of the case. Can make collateral

attacks on jurisdiction, etc, but can’t argue merits anymore. So we treat the case as fully adjudicated.

o Includes a dismissal on the meritso Includes SJo NOT included – dismissal for jurisdiction or venue (non-merits issues)

No preclusion because no prior decision on merits – ct never reached the merits at allo Gray areas:

12b6 failure to state a claim – could argue that has right to replead, usually, so if they don’t get it right the second or third time we’ll preclude it, because probably doesn’t have a compensable right in that case. (FEDERAL RULE)

But, some state cts allow a second action, because not many judicial resources go into a preliminary dismissal like that, so no real judicial waste.

Car Carriers v. Ford – Trial 1 – CC sues Ford in federal court for conspiring against CC’s business; Ford wins because CC failed to make out a valid claim under antitrust law. Next year, CC sues Ford again in fed ct, but this time sues under RICO and ICA. s move for judgment in that these claims are precluded by the 1982 suit. Ct says CC’s claim is barred because it was already brought, and CC already lost.

Res Judicata – has to be same claim that was or could have been litigated. Defined using a “transactional test.” Ct says this DOES meet the same transaction test because it refers to the same chain of events – same factual context.

Res Judicata and Joinder Federal courts generally prefer that s get finished with all their claims at once – broad and permissive joinder rules

give them that ability.o Consequently, s will seldom be able to argue that they should be allowed to start a new lawsuit on the same

transaction/occ because they were unable to make an omitted claim the first time.o VERY few exceptions – like a copyright violation case where federal law has exclusive J, but there’s a state

“unfair competition” statute too. You CAN’T bring the federal law claim in state court, and even though you might get supp J for the state law claim, the fed ct may decide not to hear that part.

Rule 18 doesn’t require joinder of claims, but RJ DOES.o “Use it or lose it” like Rule 13a for compulsory counterclaims.

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Rule 13a – Compulsory counterclaims – this is “rule-based” RJ because RJ wouldn’t bar it, but the actual joinder rules prevent you from raising it later if you don’t assert it during the first trial!

Rule 20 is permissive re: joinder of parties, and RJ generally is too. You don’t have to sue all the possible s at once under RJ either. RJ only applies to cases where the same P is against the same D.

o But – that’s where collateral estoppel can come in. If you’re in a car accident with two other people, and you lose your suit against the first one because you were found comparatively negligent, you don’t start the second suit with a clean slate. The 2 can use collateral estoppel on you to prevent him having to relitigate whether you were negligent. (That’s defensive preclusion)

B. Issue Preclusion – Collateral Estoppel “If Res Judicata is a club, CE is a scalpel” Prevents relitigation of decided issues – a party has already litigated this particular issue and lost

o Such as – Bob was negligent in driving on the wrong side of the road.o Or, say a particular thing has happened more than once – I keep coming onto your land to chop wood. If you

sue me after the first time and I prove that I have an easement, RJ will prevent you from suing again on a different theory of that first incident; however, RJ will let you sue me if I do it again and relitigate whatever you want. This is a new claim because it’s a new occurrence.

In this case, though, Issue Preclusion would keep you from relitigating the validity of my easement – that is an issue that has already been decided between us. (You could raise new theories about why I shouldn’t be there, though.)

Less restrictive than claim preclusion because it has to be the exact same issue (not as broad as the transaction test)o If the issue COULD have been litigated but wasn’t, IP won’t bar it. Only bars actually litigated issues.

May not always be the same incentive to fight every issue – default judgments happen all the time because defendants don’t see those particular cases as a big deal.

o So we usually won’t give preclusive effect for default judgments for ANOTHER plaintiff. Against whom may it be asserted? Only against someone who was a party to the prior case.

o Only exception might be privity w/ the party in the case. How would a party RAISE collateral estoppel? Via partial Summary Judgment (R. 56) If IP applies, then there

is no “general issue of any material fact” – 56c – and the moving party is entitled to judgment as a matter of law.o The other party FAILED to prove the issue before, and is ESTOPPED from trying to prove it again, so

no fact issue!o The partial SJ gets rid of this part, but you still have to go on and win the rest of your case!

Requirements: Same issue litigated before Actually litigated and determined in the prior case

o If you didn’t raise it in the prior case – say you just admitted to it – then it wasn’t litigated!o If it was raised and argued about, but the court didn’t rule on it, then it wasn’t determined.o Can be used by parties outside the prior case

Issue must have been necessary to the prior judgment.o Example – manufacturer was found to be the one who built a ladder, but the jury said that defect didn’t cause

the plaintiff’s injury.

Tricky IP problems: If there was a default judgment for one side, RES JUDICATA bars relitigation of it, but IP does not! (In a default

judgment, nothing is actually litigated or decided!) If the jury finds for on a general verdict on two theories, neither theory will be barred for later – there’s no telling

which one (or both) was necessary to the ultimate decision.o Can’t tell which one/both they “actually decided” on either

If the jury finds for on a general verdict on two theories, then both probably WILL be barred for later – clearly, the jury thought NEITHER passed muster.

If the judge or jury finds for expressly on both theories, cts differ:o Some say neither are precluded – both were decided, but we can’t tell which was necessaryo Some say both are precluded and assume both were necessary.

In the second case, check very carefully to see if different circumstances might make this (very similar) is a different one. (Example – two different shipments of coal; fact that the 1st one was substandard does not preclude that issue from being discussed re: the second one, unless you can prove it’s exactly the same!)

Old requirement – Mutuality – Required both parties to be in the prior case

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Non-Mutuality and Preclusion Nonmutual CE allows a new party to invoke CE against a party who litigated and lost on an issue in a prior action.

o Say building owner sues tenant 1 about a lease provision; ct says it is unenforceable. If he later sues Tenant 2, Tenant 2 can use CE against owner to say this lease provision has already been found unenforceable. (defensive)

o Or, say Tenant 1 sues Owner to enjoin him from enforcing the disputed part of the lease and wins. Then Tenant 2 tries to sue Owner for damages, and wants to estop Owner from arguing about the validity of the provision, using the ruling from T1 v. Owner. (offensive)

o BUT – If Owner won in the first suit against Tenant 1, and then sued Tenant 2, Tenant 2 wouldn’t be bound by Owner’s win in the first suit. (That wouldn’t be fair as Tenant 2 has never gotten a chance to litigate the issue.)

The estopped party MUST have been in the original suit and had a chance to litigate the issue! The prior party can’t win on an issue, then try to estop a new party.

o It would have to be a new party trying to estop the PRIOR party.o The party trying to estop the other has the burden of showing that the prior party had the chance to fully,

fairly litigate the issue.

Non-Mutuality Types of PreclusionDefensive preclusion – person in position of defendant, and not a party to the case before, wants to preclude relitigation of an issue in the second case.

Defensive because you want to avoid having to defend yourself on an already decided issue. “Shield” – prevent someone from proving an essential element of their claim Example: Blonder-Tongue (1971) -- sues 1 saying he infringed ’s patent, but ct says patent is invalid. Then

sues 2 saying it infringed that same patent. Supreme Ct lets 2 say that this issue has already been decided -- ’s patent is invalid. Prevent from proving that 2 is liable by borrowing finding from earlier suit that he lost on the same issue.

o Less typical – uses estoppel to establish a fact that lost on in the first case, perhaps to use as an affirmative defense.

Prevents s from “repeated litigation of the same issue as long as the supply of unrelated defendants holds out.” Supports goals of justice, fairness, economy – the party being estopped is usually the from the first case, who chose

the forum and the defendant(s) against whom to litigate the issue.

Suit 1: P ------------ D1 (plaintiff loses on issue A)Suit 2: P ------------ D2 (new defendant pleades CE to bar plaintiff from relitigating issue A)

Offensive preclusion – person in position of plaintiff, not a party to the case before, wants to preclude relitigation of an issue in the second case.

“Sword” – establish a fact that lost on last time (which will help you win your case). 2 is trying to borrow a finding from a prior action to impose liability on a party who was a defendant in the prior

action.o is often trying to borrow a finding to establish an element of his prima facie case.o Less typical -- uses it to preclude defendant from proving a defense that he failed on in the first action.

Offensive because you want the other side to be precluded from arguing a point automatic judgment for you bc it’s decided as a matter of law.

The elements of the first suit need to match the elements of the second suit exactly. Need to look at fairness factors because this is much more aggressive. (Parklane)

o The party against whom estoppel is used in the second action was a -- he did NOT choose forum, etc.o Allowing later s to borrow ruling from the first case may encourage plaintiffs to wait and see – hold back

from joining first ’s suit. Need to look at the here to see if that looks likely. Was there a good reason for not to join in

original suit?o Also, a party may not have litigated the issue aggressively the first time if the stakes were very low (low

damages, etc). May be inappropriate to allow estoppel if the didn’t have the same incentive the first time.o Also, procedural rules on the first case might have been stricter.o Also, prior inconsistent judgments on the issue, if present, suggest that it may be unfair to give conclusive

effect to any one of them.

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o Also – any hint that the trial was less than “full and fair” the first time? If application of OP would be unfair to the , then a judge should not allow the use of OP. Ct will only allow estoppel

if it is convinced that had full opportunity and incentive to litigate the issue 1st time.

Suit 1: P1 ------------ D (Defendant loses on issue A)Suit 2: P2 ------------ D (new plaintiff invokes CE to establish Issue A in her suit against this same D)

Hybrid/weird cases 2 tries to assert estoppel that would be an affirmative defense, like ’s contributory negligence, on which lost in

the case against 1. It’s kind of like defensive bc 2 is a defendant and this would let him escape liability. But it’s kind of like offensive in that 2 is using estoppel to establish a fact on which lost in the first case.

P v. D1 and D2 – say it’s a suit for a 3-way car wreck re: negligence, and D1 is found negligent but D2 isn’t. Then, D2 doesn’t cross-claim but waits to sue D1 separately.

o Depending on the arguments, and whether D1/D2 blamed it on each other, 2 may not be able to use DEFENSIVE estoppel to prove she wasn’t negligent – if D1 didn’t blame it on her, D1 hasn’t gotten a chance to litigate her negligence yet.

o But D2 might get to use offensive estoppel to say that D1 has already been found negligent – that DID get litigated. Have to look @ fairness factors.

Analysis necessary for non-mutual collateral estoppel: First three steps are same:

o Same issue o Actually litigated and decided in earlier caseo Necessary to the earlier judgment

BUT add a new step:o Fairness factors – same incentive to defend as this time? Different procedural rules? Prior inconsistent

judgments? Could this have joined before? Fairness to estopped party?

Parklane Hosiery v. Shore – Offensive preclusion case. The SEC prosecuted Parklane for a false/misleading proxy statement, and won – the ct held that the statement was false/misleading. Shore wanted to sue Parklane for the same thing in a stockholder’s class action, and wanted Parklane to be precluded from arguing whether the statement was false/misleading.

Ct allows this case of offensive preclusion, even though Shore wasn’t a party to the first action; this is the same issue of fact. Hard to see why we should give Parklane a right to litigate it again since they lost so decisively, and this new plaintiff COULDN’T have joined before in the SEC’s action.

We don’t need to give s more than one “full and fair opportunity” to litigate issue.

CARTER CASES: Is a dismissal on statute of limitations grounds actually a judgment on the merits?

o Should that be blanket over all stat/lim cases?o Stat/lim is only on merits re: claim was untimely – you can’t go in and argue later that it was TIMELY. You

can’t relitigate a question that has already been answered, and in that way, it’s on the merits. (But we didn’t really decide the rest of the case!)

Nothing that Carter II judge said about the untimeliness of that case really applies to the first case. EXCEPT – claims actually brought up in Carter II. Partial SJ would be appropriate to take care of

the duplicate claims, but not the ones in 246-47.o Fair to preclude the timely claim because of an untimely one?

To what extent are the acts in the cases similar/different?o Two different right to sue letters? Does that indicate different facts/claims? If so, the second one shouldn’t

preclude the first.o If they ARE the same, and he already sued on it in a timely manner, doesn’t that make the second case

unnecessary to start with? Second case either should have been consolidated, or should have been dismissed as a duplicative suit (and not affect first one)

What about the appeal? Doesn’t first court have to wait for second case’s appeal decision?

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Collateral Attacks An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than

within the original action or an appeal from it. When a separate and new lawsuit is filed to challenge some aspect of an earlier and separate case, it is called a

collateral attack on the earlier case. This is different than an appeal, which is a challenge to some aspect of a decision made in the same case.

A defendant may make a collateral attack on a judgment entered against him or her in some instances. If a default judgment is entered against the person, he or she may collaterally attack the authority of the issuing court to render it, claiming that there was a lack of personal jurisdiction.

Collateral attacks cannot be on the merits. (A bad attempt at a collateral attack will be too close and get precluded!) A collateral attack may also be made upon a judicial proceeding in a single state. Example: Sam obtains a divorce in Nevada without properly notifying his wife, Laurie. Laurie files a later lawsuit

seeking to set aside the divorce and start the divorce proceedings over. Laurie's case is a collateral attack on the divorce.

Example: Joe Parenti has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of paternity in the divorce action.

The law wants judgments to be final whenever possible, and thus collateral attacks are discouraged. Many are filed, but usually only succeed when an obvious injustice or unconstitutional treatment occurred in the earlier case.

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