Outline Civ Pro I - Dorsaneo - Fall 2010

CIV PRO I PROF. DORSANEO FALL 2010

I. Personal Jurisdiction.....................................................................................................................................5A. Territoriality and Consent..........................................................................................................................5

14th Amendment U.S. Constitution.................................................................................................................................................5Pennoyer v. Neff.......................................................................................................................................................................5Grace v. MacArthur...................................................................................................................................................................5

Implied Consent.............................................................................................................................................................................5Hess v. Pawloski.......................................................................................................................................................................5

B. Minimum Contacts.....................................................................................................................................6International Shoe Co. v. Washington......................................................................................................................................6McGee v. International Life Ins. Co...........................................................................................................................................6Perkins v. Benguet....................................................................................................................................................................6

Due Process / Fair Play & Substantial Justice – 5 Prongs:...........................................................................................................6C. Long-Arm Statutes.....................................................................................................................................6

Gray v. American Radiator........................................................................................................................................................6Feathers v. McLucas.................................................................................................................................................................6Markham v. Anderson...............................................................................................................................................................6

D. Expanding Minimum Contacts...................................................................................................................61. Purposeful Availment................................................................................................................................................................6

Hanson v. Denckla....................................................................................................................................................................6World-Wide Volkswagen Corp. v. Woodson.............................................................................................................................6Hall v. Helicopteros...................................................................................................................................................................6

2. Reasonable Anticipation...........................................................................................................................................................6Burger King Corp. v. Rudzewicz...............................................................................................................................................6

3. Purposeful Availment in Stream-of-Commerce.........................................................................................................................7Asahi Metal Industry Co. v. Superior Court...............................................................................................................................7

E. In Rem Jurisdiction....................................................................................................................................8Legitimate Uses of Power Over Property......................................................................................................................................8Abuses of In Rem Jurisdiction.......................................................................................................................................................7

Shaffer v. Heitner......................................................................................................................................................................7F. “Tag” Jurisdiction.......................................................................................................................................7

Burnham v. Superior Court.......................................................................................................................................................7G. Special Bases of Jurisdiction.....................................................................................................................7

1. Consent.....................................................................................................................................................................................72. Contract (Forum Selection Clauses).........................................................................................................................................8

Carnival Cruise Lines, Inc. v. Shute..........................................................................................................................................83. FRCP 4(k) and Nationwide Service of Process........................................................................................................................8

H. Challenging Personal Jurisdiction.............................................................................................................8Wyman v. Newhouse................................................................................................................................................................8Harkness v. Hyde......................................................................................................................................................................8

I. Notice Requirements of Due Process.......................................................................................................9Mullane v. Central Hanover Bank & Trust Co...........................................................................................................................9

J. Compliance with Rules for Service of Process..........................................................................................9Leigh v. Lynton..........................................................................................................................................................................9Morton v. F.H. Paschen, Inc...................................................................................................................................................10

Form 1A.......................................................................................................................................................................................10Form 1B.......................................................................................................................................................................................10

Hunsinger v. Gateway Management Corp..............................................................................................................................10K. Forum Non Conveniens..........................................................................................................................10

Piper Aircraft Co. v. Reyno.....................................................................................................................................................10L. Venue and Venue Transfer.....................................................................................................................10

Transfer of Venue........................................................................................................................................................................10Hoffman v. Blaski....................................................................................................................................................................10

II. Subject-Matter Jurisdiction..........................................................................................................................11A. General Principles...................................................................................................................................11

Testa v. Katt............................................................................................................................................................................11B. Federal Question (“Arising Under”) Jurisdiction......................................................................................11

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1. Creation Test..........................................................................................................................................................................11Louisville & Nashville Railroad v. Mottley...............................................................................................................................11

2. Ingredient Test........................................................................................................................................................................11Merrell Dow Pharmaceuticals, Inc. v. Thompson...................................................................................................................11

C. Diversity Jurisdiction................................................................................................................................12Strawbridge v. Curtiss.............................................................................................................................................................12Mas v. Perry............................................................................................................................................................................12

Parties “Improperly or Collusively Made”.....................................................................................................................................13Kramer v. Caribbean Mills, Inc................................................................................................................................................13

Amount in Controversy................................................................................................................................................................13Williams v. Kleppe...................................................................................................................................................................13

D. Supplemental Jurisdiction.......................................................................................................................13Pendent Jurisdiction....................................................................................................................................................................13

United Mine Workers v. Gibbs................................................................................................................................................14Ancillary Jurisdiction....................................................................................................................................................................14

Kroger Case............................................................................................................................................................................14Abstention Doctrines....................................................................................................................................................................14

E. Removal..................................................................................................................................................14Caterpillar Inc. v. Lewis...........................................................................................................................................................15

III. The Erie Doctrine.....................................................................................................................................15A. State Substantive Law in Federal Courts................................................................................................15

Erie Railroad v. Tompkins.......................................................................................................................................................15B. Federal Procedural Law..........................................................................................................................15

Approaches to Application...........................................................................................................................................................16Guaranty Trust Co. v. York.....................................................................................................................................................16Byrd v. Blue Ridge Rural Electric Cooperative, Inc................................................................................................................16Hanna v. Plumer.....................................................................................................................................................................16Burlington Northern Ry. v. Woods..........................................................................................................................................16Gasperini v. Center for Humanities, Inc..................................................................................................................................16

Hanna and Gasperini...................................................................................................................................................................17C. Choice of Law..........................................................................................................................................17

Approaches to Conflict of Laws...................................................................................................................................................17Pennington v. Dye...................................................................................................................................................................17Klaxon Co. v. Stentor Electric Mfg. Co....................................................................................................................................17

IV. Pleadings.................................................................................................................................................17A. Common Law Pleadings.........................................................................................................................17

P’s Suit.........................................................................................................................................................................................17D’s Pleading.................................................................................................................................................................................17The Single Issue..........................................................................................................................................................................17Forms of Action............................................................................................................................................................................17

B. Code Pleading.........................................................................................................................................17Gillispie v. Goodyear Service Stores......................................................................................................................................18

C. Standards for the Federal Complaint......................................................................................................18Conley v. Gibson.....................................................................................................................................................................18Dioguardi v. Durning...............................................................................................................................................................18Fox v. Lummus.......................................................................................................................................................................19Sweeny Co. v. Engineers-Constructors, Inc...........................................................................................................................19

General v. Special Damages.......................................................................................................................................................19Lambert v. Southern Counties Gas Co...................................................................................................................................19

D. Defendant’s Pleadings............................................................................................................................191. Admissions and Denials..........................................................................................................................................................19

White v. Smith.........................................................................................................................................................................202. Affirmative Defenses...............................................................................................................................................................20

Gomez v. Toledo.....................................................................................................................................................................203. Plaintiff’s Reply.......................................................................................................................................................................20

E. Certifications and Sanctions....................................................................................................................201. History of Rule 11...................................................................................................................................................................21

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2. 1983 Amendment: Objective Standard Requiring a “Reasonable Inquiry”.............................................................................21Eastway Construction Corp. v. City of New York....................................................................................................................21

3. 1993 Amendment: 21-Day Safe Harbor and Discretionary Sanctions....................................................................................21Hadges v. Yonkers Racing Corp.............................................................................................................................................21

4. “Inherent” Power.....................................................................................................................................................................21F. Amendment.............................................................................................................................................21

Beeck v. Aquaslide ‘N’ Dive Corp...........................................................................................................................................22G. Texas Pleadings......................................................................................................................................22

V. Multiple Parties and Claims.........................................................................................................................22A. Counterclaim and Cross-claim................................................................................................................22

Cavanaugh v. Western Maryland Railway Co........................................................................................................................23B. Third-party claims (Impleader)................................................................................................................23

Barab v. Menford....................................................................................................................................................................23C. Permissive Joinder..................................................................................................................................24

Grogan v. Babson Brothers Co...............................................................................................................................................24D. Consolidation, Separate Trial, and Severance........................................................................................24

Henz v. Superior Trucking Co.................................................................................................................................................24E. Compulsory Joinder.................................................................................................................................25

Provident Tradesmens Bank & Trust Co. v. Patterson...........................................................................................................25F. Intervention and the Real-Party-in-Interest Requirement........................................................................25

NOPSI v. United Gas Pipe Line Co.......................................................................................................................................26G. Interpleader.............................................................................................................................................26

2 Kinds of Interpleader.................................................................................................................................................................26State Farm Fire & Casualty Co. v. Tashire.............................................................................................................................26

H. Class Actions...........................................................................................................................................26Hansberry v. Lee.....................................................................................................................................................................26

VI. Discovery and Disclosure........................................................................................................................27A. Scope of Discovery..................................................................................................................................27

Kerr v. District Court................................................................................................................................................................27Bank of the Orient v. Superior Court.......................................................................................................................................27

Relevance Standard for Self-Initiated Disclosures......................................................................................................................27B. Exceptions to the Scope of Discovery.....................................................................................................27

1. Privileges................................................................................................................................................................................27Upjohn Co. v. United States....................................................................................................................................................28

Waiver..........................................................................................................................................................................................282. Work Product..........................................................................................................................................................................28

“Work Product” Objections...........................................................................................................................................................28Hickman v. Taylor...................................................................................................................................................................28Bank of the Orient v. Superior Court.......................................................................................................................................29

3. Discovery of Experts...............................................................................................................................................................29Ager v. Jane C. Stormont Hospital & Training, Etc.................................................................................................................29

C. Protective Orders and Confidentiality Agreements.................................................................................29Centurion Industries, Inc. v. Warren Steurer and Associates.................................................................................................30

D. Mechanics of Discovery..........................................................................................................................301. Interrogatories.........................................................................................................................................................................30

Burns v. Thiokol Chemical Corporation..................................................................................................................................30Contention Interrogatories...........................................................................................................................................................30

Sargent-Welch Scientific Co. v. Ventron Corp........................................................................................................................312. Requests for Production of Documents..................................................................................................................................31

Board of Education of Evanston Township v. Admiral Heating and Ventilating, Inc...............................................................313. Oral Depositions.....................................................................................................................................................................31

Salter v. Upjohn Co.................................................................................................................................................................324. Physical or Mental Examination..............................................................................................................................................32

Schlagenhauf v. Holder...........................................................................................................................................................325. Request for Admissions..........................................................................................................................................................32

Trevino v. Central Freight Lines, Inc.......................................................................................................................................336. Automatic Disclosure..............................................................................................................................................................33

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E. Duty to Supplement Responses..............................................................................................................33Voegeli v. Lewis......................................................................................................................................................................33

F. Use of Discovery in Hearings or Trials....................................................................................................33Frechette v. Welch..................................................................................................................................................................34

G. Self-Initiated Disclosures.........................................................................................................................34Scheetz v. Bridgestone / Firestone, Inc..................................................................................................................................34

H. Discovery Certifications; Conferences....................................................................................................35I. Sanctions.................................................................................................................................................35

Roesberg v. Johns-Manville Corp...........................................................................................................................................36Lew v. Kona Hospital..............................................................................................................................................................36

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I. Personal Jurisdiction – what states can we sue the defendant in?State and federal courts undergo the same analysis. A court must have power over something in order to get jurisdiction (defendant or his property). Three kinds of Personal Jurisdiction:

o In personam jurisdiction : court has power over defendant himself because of some connection with the forum.o In Rem : court has power over the defendant’s propertyo Quasi in rem

Due process will determine how much power a court will have—also if that power is constitutional.o 1st see if OK under due process. o 2nd see if the state has a statute that will allow for jurisdiction (i.e., long-arm statute). If the answer is no, there is no

jurisdiction. IN PERSONAM JURISDICTIONSpecific jurisdiction – Defendant is sued in that forum on a claim that arises from his activities or is related to the contacts in that forum. (Int’l Shoe Inc. & Hess)General jurisdiction – Claim arises in another place and is unrelated to contacts (systematic and continuous contacts req.)

General jurisdiction gives court power to adjudicate all claims against D, even if they are not related to D’s contacts with the forum state. (D is sued in that forum on a claim that arose anywhere in the world)

General and Specific Test Analysiso First, does a traditional basis apply? If so, mention it.o Second, conduct Shoe test:

Is there a relevant contact between D and forum? Two factors to consider:

o Purposeful availment – D must have reached outo Must have been foreseeable that D would get sued there

Is jurisdiction fair? Relatedness. (Does the P’s claim arise out of D’s contact with the forum) Five Factors:

o Inconvenience for the defendant (generally tough to prove)o State’s interesto Plaintiff’s interesto Interest in efficiencyo Interstate interest in shared substantive policy (like family harmony)o Court hasn’t done much with the 4th and 5th factors

A. Territoriality and Consent14th Amendment U.S. Constitution

Forbids the states from “depriving any person of life, liberty, or property without due process of law.”Pennoyer v. Neff (Raw Power. Traditional basis of service)

Plaintiffs are not free to bring suit wherever they choose. The State must have jurisdiction over D or D’s property. Four ways to get it:

(Presence) D is served with process in the forum Defendant’s agent is served with process in the state D’s domiciled in the state D’s consent to jurisdiction Service by publication not sufficient to obtain jurisdiction, unless in certain circumstances. If a nonresident voluntarily appears in a forum, she consents to personal jurisdiction there.

Grace v. MacArthur Service within the State creates jurisdiction no matter how briefly the defendant is present in the state and

no matter for what purpose. D was served with process in airspace over Arkansas – court upheld process as valid.

Implied ConsentState statute can imply consent to personal jurisdiction when D operates a motor vehicle on the State’s highways.

Hess v. Pawloski (S.Ct. expands the basis of service) There must be actual service within the State of notice upon him or upon someone authorized to accept

service for him.

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The State may declare that the use of the highway by the non-resident is the equivalent of the appointment of the registrar as agent on whom process may be served.

Implied consent by virtue of using the roads Allows for SPECIFIC JURISDICTION

B. Minimum ContactsInternational Shoe Co. v. Washington (doesn’t expand basis but gives a new doctrinal formula)

Rule of Law: Due process requires only that D have certain minimum contacts with a state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Minimum contacts jurisdiction is limited to claims arising from D’s contacts with the forum state. This does not overrule Pennoyer, because it only applies if defendant is not present when served.

McGee v. International Life Ins. Co. (Texas Ins. Comp. that sold $1000 of insurance in Cal., the got sued in Cal. for breach. Is there jurisdiction in this case?)

“Minimum contact” can mean one if the suit arises out of that contact. The contract here was delivered in California, the premiums were paid from there and the insured was a

resident of that State when he died. Even though there was only one contact, the cause of action arose out of this contact, so it is sufficient. (Defendant’s contact with forum = RELATEDNESS)

Perkins v. Benguet If a corporation carries on continuous and systematic corporate activities, that is enough.

Due Process / Fair Play & Substantial Justice – 5 Prongs:o Burden on Defendanto Forum state’s interest in adjudication / public policy (does not violate due process) – McGeeo Plaintiff’s interest in obtaining convenient and effective reliefo Interstate judicial system’s interest in obtaining the most efficient resolution of controversieso Shared interest of states in furthering substantive social policies

C. Long-Arm StatutesTest for State’s jurisdiction:

o (1) Does the state’s long-arm statute authorize jurisdiction?o (2) Would this jurisdiction be constitutional under due process (minimum contacts)?

Limitso In some states, the courts have the full scope of personal jurisdiction permissible under due process.o In others, a statute lists the circumstances in which defendants can be subjected to long-arm jurisdiction.

Gray v. American Radiator The place of a wrong is where the last event takes place which is necessary to render the actor liable. The alleged negligence in manufacture cannot be separated from the resulting injury, so the place of the tort

can be the place of the injury. (In this case, where the manufacturing of the crappy component was done)Feathers v. McLucas

“A court may exercise personal jurisdiction over any nondomiciliary…if in person or through an agent, he…commits a tortious act within the State.”

The place of the tort is not necessarily the same as the place of D’s commission of the “tortious act.” (rejected Gray)

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D. Expanding Minimum Contacts1. Purposeful Availment

Hanson v. Denckla (limits jurisdiction) It is essential in each case that there be some act by which the defendant purposefully avails itself of the

privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

Trust fund case where woman moves to Florida, but does business at Delaware Bank…Delaware did not reach out to Florida, so they weren’t subject to jurisdiction there. It was woman’s unilateral act.

Applying Shoe, Defendant must reach out to forum. Clearly present in MgGee but not in Hanson.World-Wide Volkswagen Corp. v. Woodson

Court held there was no purposeful availment, so there was no jurisdiction. The foreseeability that is required by due process is not the mere likelihood that a product will find

its way into the forum state. Rather, it is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being hailed into court there.

The forum state does not exceed its powers under the due process clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.

Hall v. Helicopteros Purchases and related trips, standing alone, are not a sufficient basis for personal jurisdiction. D’s single trip to Texas could not be classified as a contact of “continuous and systematic” nature justifying

jurisdiction.

2. Reasonable AnticipationBurger King Corp. v. Rudzewicz

Continuous but limited activity in the forum state, such as an ongoing business relationship, will support “specific” jurisdiction – jurisdiction over claims arising out of that continuous activity.

By virtue of entering into a contract with BK in Florida, D availed himself of Florida. Test: (Shoe’s two prong test) (1) Did D have sufficient minimum contacts with the forum state? (You must have a relevant

contact before a court will even consider fairness) (2) Does jurisdiction offend “traditional concepts of fair play and substantial justice”? (due process) Jurisdiction did not offend due process b/c: (1) substantial and continuing relationship with headquarters in Miami (2) D received fair notice that he might be subject to suit in Florida (3) D has failed to demonstrate the forum would be “fundamentally unfair”

3. Purposeful Availment in Stream-of-CommerceAsahi Metal Industry Co. v. Superior Court (court was split)

O’Connor : Purposeful availment would require clear evidence that D seeks to serve the market in the particular state, such as designing the product for the market in that state or advertising there.

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Constitutional scope of jurisdiction

Jurisdiction conferred by the resident plaintiff long-arm provision

Cases that fall in this bulge are authorized by the statute but are beyond the bounds of the due process clause

The “substantial connection” between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state. The placement of a product into the stream of commerce, without more, is not enough.

Brennan : As long as D is aware that the final product is being marketed in the forum state, the possibility of a lawsuit there cannot come as a surprise. (there is contact if I put my product in the stream and can reasonably anticipate it gets to C, D, & E)

Stevens : number and nature of products placed in the stream of commerce is relevant to a judgment of purposeful availment.

Scalia : presence when served is good on its own. Don’t have to assess minimum contacts at all. (Stresses historical validity of service within jurisdiction)

“Effects” Test: If D does something w/ substantial certainty that harm will be caused in the forum state, then the 1st prong of specific jurisdiction is met.

E. In Rem JurisdictionLegitimate Uses of Power Over Property

A state has a universally recognized interest in clear titles to land within its borders.o Property can be land, car, bank account, anything.o Pennoyer – If claimants to a parcel are scattered, the state where the land is located has adjudicatory power.

Difference between in rem jurisdiction and quasi in rem:o In rem jurisdiction can be exercised to secure and preserve property before suit or to enforce judgments

(garnishment). It’s about who owns the property.o Quasi is a dispute that has nothing to do with ownership. There is no question about ownership. o IN REM & QUASI are both valid so long as the court seizes the property at the outset. (via an attachment statute,

which allows attachment of property defendant owns or claims to own)Abuses of In Rem Jurisdiction

Quasi in rem – the presence of property is used as a justification for deciding issues unrelated to the property.Shaffer v. Heitner

Pers. jurisdiction is based on the relationship between D, the forum, and the litigation. Presence of D’s property in a state is not enough to support jurisdiction (overturned in rem portion of Pennoyer).

The defendant must also have minimum contacts with the forum—must meet Shoe. Now, the constitutional test is the same for personam, rem & quasi.

F. “Tag” JurisdictionBurnham v. Superior Court

Scalia: Jurisdiction based on physical presence alone constitutes due process b/c it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.”

Contrary to Shaffer, all assertions of state-court jurisdiction do not have to be evaluated according to minimum contacts standards.

Brennan: minimum contacts standards are applicable to all cases according to Shaffer A transient defendant avails himself of significant benefits of the forum state by traveling there, and

since he has been there once, suit in the forum likely will not be prohibitively inconvenient.

G. Special Bases of Jurisdiction1. Consent

Most common situations in which prior consent is required or implied:o (1) corporations doing business within the state

typically required to appoint a resident as agent for receipt of service, ando (2) implied consent statutes covering nonresident motorists (Hess)

In common law jurisdictions, a nonresident consents to jurisdiction if he appears in the action to defend it, even if he has no connection with the forum.

FRCP 12(h)(1) – if D files an answer, but does not raise the jurisdictional issue within the time for amendment by right, he “waives” the issue (he has consented).

Special appearance -- An appearance in a common-law court solely to raise the jurisdictional issue; any other appearance is a “general” appearance

2. Contract (Forum Selection Clauses)Carnival Cruise Lines, Inc. v. Shute

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Forum-selection clause on the back of ticket was part of the contract and was implied consent. “If they are reasonable, even non-negotiated clauses in a form contract are enforceable under some circumstances.”

Courts are usually willing to enforce forum selection clauses. Only exceptional circumstances – fraud or extreme burden – seem likely to trigger the “fundamental fairness” limitation.

3. FRCP 4(k) and Nationwide Service of Process(1) Service effective to est. jurisdiction over person of ∆

o (A) who could be subject to long-arm statutes (state) and if that statute is constitutionalo (B) who is party joined un FRCP 14 or 19 and is served at place w/in judicial district in U.S. and not more than 20 mi.

from the place from which the summon issues (“bulge service”)o (C) who is subject to federal interpleader jurisdictiono (D) when authorized by statute of U.S.

(2) If exercise of jurisdiction is consistent w/ Const. and U.S. laws, service or waiver is also effective for claims arising under fed. law to est. person jurisdiction over ∆ who is not subject to the jurisdiction of the cts. of general jurisdiction of any state.

H. Challenging Personal JurisdictionFRCP 12(b) – Every defense…to a claim for relief in any pleading [any kind of claim] shall be asserted in the responsive pleading thereto if required, except that the following defenses may be made by motion:

o (1) lack of jurisdiction over subject matter, o (2) lack of jurisdiction over the person,o (3) improper venue, o (4) insufficiency of process, o (5) insufficiency of service of process, o (6) failure to state a claim upon which relief can be granted, o (7) failure to join a party.

FRCP 12(h)(1) – A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service is waived:

o if omitted from motion in the circumstances described in sub (g)o if it is neither made by motion under 12(h)(1) nor incl. in responsive pleading or amd.

Always raise jurisdictional defenses firstIn most states, a defendant who challenges jurisdiction at the beginning of the suit and loses may proceed to defend the merits of the suit without waiving her objection to the court’s jurisdictional ruling.

Wyman v. Newhouse Collateral Attack – D refuses to appear, then later attacks the jurisdiction in his home state when an action

on the default judgment is brought against him. Since the default judgment cannot be invalidated on any basis other than lack of jurisdiction, a collateral attack is risky.

One cannot seek relief by collateral attack if he has already made special appearance in what he considers an improper extension of the state’s jurisdictional limits.

Harkness v. Hyde Special appearance – illegality in a proceeding by which jurisdiction is to be obtained is in no case waived

by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the

objection is deemed to be waived. If the appearance is not properly made, it will be treated as a general appearance and is a consent to the

jurisdiction of the court. Also, the special appearance does consent to the jurisdiction of the court for the limited purpose of adjudicating its jurisdiction.

I. Notice Requirements of Due Process (in addition to determining jurisdiction, you must tell the defendant he is being sued.

Best service is in-hand.Mail service is acceptable, but it must be certified w/return receiptPublication is an adequate form of notice only when it is not reasonably possible to give more adequate warning.The circumstances of each case will determine the proper form of service of process.

Mullane v. Central Hanover Bank & Trust Co. Notice must be reasonably calculated to inform interested parties of the action and allow them to object. Notice must reasonably convey required information. Notice must allow a reasonable time for parties to make their appearance.

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J. Compliance with Rules for Service of ProcessFRCP 4Process = summons + copy of complaint. Rule 4(a)(1)

o (a) Form – signed by clerk, bear court seal, identify court and parties, be directed to ∆, state name of Plaintiff’s attorney, time w/in which ∆ must appear and defend and notify ∆ that failure to do so will result in default judgment

o (c) Service w/ Complaint Service can be made by a non-party who is at least 18 years old. Very liberal rule – Rule 4(c)(2).

o Waiver of Service – 4(d) (1) Defendant who waives service does not thereby waive objection to venue or jurisdiction; (2) Individual, corp., or assoc. that is subject and that receives notice of action has a duty to avoid

unnecessary costs of serving the summons. Notice and request for waiver shall be: in writing and addressed to D, through 1st class mail, accompanied

by copy of complaint and identify court, shall inform D consequences of compliance or failure to comply, date on which request is sent, allowance of reasonable time to return waiver (at least 30 days from date sent or 60 from date if D is outside U.S.), provide D w/ addl. copy of notice and request and prepaid means of compliance in writing.

(3) D who returns waiver before being served is not required to answer complaint until 60 days after date on which waiver was sent (90 if outside U.S.) [Extends response from FRCP 12]

If D fails to return the waiver form, they will be served, and D may then have to pay the cost of service. Notice may be reasonably calculated under all the circumstances to give the party notice of proceeding. (Malaine v. Bank)

Even if D never got it, service is still good because it was reasonably calculated. If P is aware that D didn’t get the service, other steps may be necessary.

o (e) Service upon Individuals in U.S. – Service pursuant to state law in which D.Ct. is located or in which service is effected and delivered w/ copy of summons and complaint to ∆ personally or leaving copies at dwelling house.

4(e)(2) lays out 3 ways in which we can serve: Personal service – hand it to them Substituted service – ONLY at the defendant’s dwelling (usual abode). Only to someone of

suitable age and discretion who resides there. (i.e., not the babysitter) Defendant’s Agent (may be appointed by law—think non-resident motor act) OR we can used Rule 4(e)(1) the law of the state! We can use any method above or the

methods of the state. o (h) Service upon Corp. and Assoc. – Service pursuant to 4(e)(1) or by delivering copy of summons and complaint to

officer, managing or general agent, or any agent authorized to receive process and also by mailing copy to ∆. (i.e., someone who has enough job responsibility that we expect it would be OK…someone who could transmit important papers.

o (k) Territorial Limits (1)(a) – effective to est. jurisdiction over ∆ who could be subjected to ct. of general jurisdiction in state in

which D.Ct. is located (1)(b) – under U.S. statutes (e.g. provides for nation-wide service of process) (2) – Fed. Long-Arm statute – Req. that (a) exercise of jurisdiction be consistent w/ Const. and laws of U.S.;

(b) Claim must arise under fed. law; (c) ∆ is not subject to jurisdiction of cts. of general jurisdiction of any state (i.e. if no long-arm statute is available)

o (m) Time Limits – Service of summons and complaint to be delivered no later than 120 days after filing of complaint; After that time, Court may dismiss w/o prejudice or direct that service be effected for a given time

FRCP 5o (a) Pleadings following original complaint, papers relating to discovery, motions, notice, appearance, demand, offer of

judgment, designation of record on appeal, etc. shall be served upon each of parties involved. No service necessary on parties in default for failure to appear except that pleadings asserting new or addl. claims for relief.

o (b)(2) Service by Delivery to person served by handing it to him, leaving it at person’s office w/ clerk, leaving it at dwelling house, mailing copy to last known address, (or if no known address) leaving it w/ clerk of the court, or any other available means (electronic)

o (d) Certificate of Service – Discovery requests of depositions, interrogatories, requests for docs or permitting entry upon land, requests for admissions not to be filed until used in proceeding or as court orders.Leigh v. Lynton

The apartment in the hotel was not D’s usual place of abode or dwelling as defined in the Federal Rules of Civil Procedure, and service of the summons and complaints was quashed.

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For Lynton to be properly served, the service must comply with Rule 4(f). You have to know more about the relationship of the foreign state to the United States, such as whether there is a treaty that governs service of process.

Service at mother’s home is ok if D considers that to be his home or if D moves around regularly.If D has multiple houses, can deliver service to one that has “sufficient indicia of permanence.” You can only have one place of abode at a time. Since D was living in that house at the time, service was proper.

Morton v. F.H. Paschen, Inc. Rule 4(h) of Fed. Rules provides for service “in the manner prescribed for individuals by subdivision (e)(1),”

which allows service not only by in-hand delivery, but also service “pursuant to the laws of the state in which the district court is located.” Therefore, a plaintiff may serve a summons and complaint on a foreign corporation by mail if state law permits service in that manner.

Form 1AForm 1B

Hunsinger v. Gateway Management Corp. FRCP 4(m) allows the court, as an alternative to dismissal, to “direct that service be effected within a

specified time,” which gives the judge discretion to allow service after the 120-day limit.

K. Forum Non ConveniensForum non conveniens – common law doctrine that allows the court to dismiss so that the action can be brought in another, more appropriate forum. This is not a transfer, it is a DISMISSAL. We dismiss because transfer is not possible, because the other court is in a completely different judicial system. (You can’t transfer to another judicial system.

o Application is discretionary with the court.o Policy: The mere existence of raw adjudicatory power does not mean that the court should always exercise it.o Plaintiff’s hate this, defendant’s love it!

Piper Aircraft Co. v. Reyno Contours of forum non conveniens: Certain private factorso Relative ease of access to sources of proofo Availability of compulsory process for attendance of unwilling witnesseso Enforceability of the judgment if one is obtained Certain public factorso Burden imposed upon the citizens and courts of the forumo General interest in having localized controversies decided locallyo Interest in having a diversity case tried in a forum that is familiar with the law that governs Possibility of unfavorable change to Plaintiff’s case is consideration but it should not be governing factor – If

Plaintiff would still be able to acquire remedy, then FNC is not applicable.

L. Venue and Venue TransferSubject Matter jurisdiction can tell us to go to federal court, but venue tells you exactly which court to go to.

Example: PJ tells us we can sue in New Yorko If P is filing in NY federal court, he has two choices:

28 USC § 1391(a) – venue for diversity cases 28 USC § 1391(b) – venue for federal question

o 1st choice: P may lay venue in any district where ALL the defendant’s reside. If all defendants reside in different districts of the same state, then we can sue them ALL where

ANY of them resides. We are talking about where the D’s reside, do not confuse this with citizenship.

Residency is usually your place of domicile. A corporation resides 1391(c) in EVERY DISTRICT WHERE IT IS SUBJECT TO

PERSONAL JURISDICTION. (Do not confuse this with citizenship)o 2nd Choice: You may lay venue in a district where a substantial part of the claim arose.

This is completely up to the P.28 USC § 1392 – Any civil action of a local nature, involving property located in different districts of the same state, may be brought in any of such districts28 USC 1400(b) – Any civil action for patent infringement may be brought in the district where D resides, or where D has committed acts of infringement and has a regular and est. place of business

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Transfer of VenueThe basic principle is that the transfer should bring about only a change of courtrooms, not a change in the governing law.

o You can only transfer to a court in the same judicial system. (We are talking about transferring from one federal court to another federal trial court). Don’t confuse with removal.

o Under both statutes, a transferee must be a proper venue and have personal jurisdiction over the defendant. This must be independently true.

28 USC 1404(a) – (applies when the transferor (org. fed. ct.) is a proper venue. For the convenience of parties and witnesses, in the interest of justice, a D.Ct. may transfer any civil action to any other district or division in which it might have been brought.

28 USC 1406 – (applies where the transferor is an IMPROPER VENUE) (a) D.Ct. in which is filed a case laying venue in wrong division or district shall dismiss, or if it be

filed in the interest of justice, transfer such case to any district or division in which it could have been brought

(b) Nothing shall impair jurisdiction of D.Ct. of any matter involving a party who does not interpose timely and sufficient objection to the venue

The general rule is that a court lacking jurisdiction should dismiss. However, 28 U.S.C. § 1406 gives federal D.Cts authority to dismiss or transfer when venue is improper

Hoffman v. Blaski The power of a District Court under §1404(a) to transfer an action to another district is made to depend not

upon the wish or waiver of the defendant but, rather, upon whether the transferee district was one in which the action “might have been brought” by the plaintiff. This motion would not have been granted if it had been brought by the plaintiff, so it should not be upheld when it is brought by the defendant.

II. Subject-Matter JurisdictionA. General Principles

What court do we go to within a state? Personal is over the parties, SMJ is over the case. We need both personal and SMJ.

Subject-matter jurisdiction is the court’s power to act with respect to the generic type of dispute before the court in the posture in which it has been filed.State courts

o In state courts, the most frequent determinant of subject-matter jurisdiction is the amount in controversy. They can hear anything (except for cases involving federal questions in relation to patents or bankruptcy.

Federal courtso Congress has designated some claims as exclusively under the federal courts’ jurisdiction (actions under federal

patent or copyright laws, federal bankruptcy laws) They may arise under the following claims:

B. Federal Question (“Arising Under”) JurisdictionCitizenship and amount in controversy are irrelevant

o NY v. NY for $.01 works!28 U.S.C. 1331 -- D.Cts. shall have original jurisdiction of all civil actions arising under the Const., laws, or treaties of U.S.U.S. Const. Art. III § 2 – The judicial power shall extend to:

o all cases arising under this Const., the law of US, and treaties (federal question jurisdiction)o all cases affecting ambassadors, other public ministers and consulso all cases of admiralty and maritime jurisdictiono cases to which US is a partyo controversies between 2 or more stateso cases between a state and citizens of another stateo cases between citizens of different states (diversity jurisdiction)o cases between citizens of the same state claiming land under grants of different stateso cases beween a state, or its citizens, and foreign states, citizens, or subjects

The mere presence of a federal question somewhere in the case does not create federal jurisdiction; it must be in the claim. A federal defense is not enough.A plaintiff cannot invoke the original jurisdiction of the federal courts either by anticipating a federal defense or otherwise importing a federal question into his complaint that is not essential to his case.“Well-pleaded complaint” rule

o Is the P enforcing a federal right? If so, we need the well-pleaded complaint rule because it arises under federal law.

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Tests for federal question jurisdiction:o Creation test -- Fed. law creates the cause of actiono Ingredient test – P’s right to relief necessarily depends upon resolution of a substantial issue of fed. law.

1. Creation TestLouisville & Nashville Railroad v. Mottley

A suit “arises under” the Const. and laws of US only when P’s statement of his own cause of action shows that it is based upon those laws or Const. It is not enough that P alleges an anticipated defense to his COA and asserts that the defense is invalidated by some provision of the Const.

Well-pleaded complaint rule : It is not enough that P refers to fed. law in her complaint; the problem is that P didn’t have to. They could have stated a perfectly adequate claim for relief by alleging only state issues.

The court doesn’t have to wait for D’s answer to know whether or not it has jurisdiction.2. Ingredient Test

If P sues to enforce the federal right created by a fed. statute, despite the lack of an express authorization to sue, the court must decide whether there is an implied private right of action to recover for violation of the fed. right.

Merrell Dow Pharmaceuticals, Inc. v. Thompson A statute that creates a fed. substantive right, but is held not to create a private right to sue to enforce that

right, will not support arising-under jurisdiction under § 1331. Presence of a federal issue in a state law claim does not “automatically” confer arising-under jurisdiction.

The result turns on how substantial and central the federal issue is to the case.

C. Diversity JurisdictionU.S. Const. Art. III § 228 U.S.C. § 1332

o (a) D.Cts. have original jurisdiction of all actions over $75k (excluding interest and costs) b/w (1) citizens of different states (2) citizens of State and citizens of foreign state (3) citizens of different states and in which foreign state are addl. parties (4) foreign state as Pl. and citizen of State

o (c) Corp. deemed citizen of State in which it has been incorporated and State where it has principle place of business

Notes on 28 USC § 1332(a) and (b):o Complete diversity req. – no Plaintiff can be from same state as any Defendanto Plaintiff can eliminate complete diversity and keep case in state by adding non-diverse Defendanto Diverse citizenship based on citizenship at time of filing o Until a person obtains a new domicile, he remains citizen of 1st state

You retain domicile until you intentionally change it by BOTH intent and physical move. (In state tuition, registering to vote)

o Class action takes citizenship of its named Pls. o Amount in controversy must exceed $75k

Strawbridge v. Curtiss

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Scope of possible diversity jurisdiction under Article III § 2

Scope of the diversity jurisdiction conferred in 28 USC § 1332

In this area lie cases in which some parties are diverse, but there is not complete diversity. Also cases in which diversity is complete but the amount-in-controversy requirement is not met.

Diversity statute (§ 1332) requires complete diversity between all partiesMas v. Perry

Jurisdiction is unaffected by subsequent changes in the citizenship of the parties. For diversity purposes, citizenship means domicile; mere residence in the state is not enough. “Domicile” is a person’s home and principal establishment; where he intends to return when he is absent A change of domicile requires: (a) taking up residence in a different domicile with (b) the intention to remain there. The amount-in-controversy is determined by the amount claimed by P in good faith. Fed. jurisdiction is not

lost b/c a judgment of less than the jurisdictional amount is awarded.Notes on 28 USC § 1332(c):

o Corporations can have more than multiple citizenships – State of incorporation State of “principal place of business”

o How to determine “principal place of business” Nerve Center test – employed if activities are thoroughly dispersed nationwide; “most extensive contacts”;

“nerve center from which it radiates out to its constituent parts and from which its officers direct, control, and coordinate all activities w/o regard to locale, in furtherance of the corporate objective”

Bulk-of-the-Activity (BOA) test – favored test, unless activities are thoroughly dispersed nationwide There is only one PPB, S.Ct. decided in Hertz that PPB the place from which the business is

directed, where the senior officers call the shotso Unincorporated entities do not have independent citizenship – court looks to citizenships of all members.Parties “Improperly or Collusively Made”

28 U.S.C. § 1359 -- A D.Ct. shall not have jurisdiction over an action in which any party, by assignment of otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such ct.

Kramer v. Caribbean Mills, Inc. Kramer was paid $1 and assigned to a $165,000 claim for the sole purpose of creating diversity.

P may change his citizenship to create diversity, but it must be an actual legal change made w/ intention of bringing about actual citizenship.

Amount in ControversyMust exceed $75k -- Amt. requested – not amt. granted – is determinative (Not in interest or costs)

o “Value of Object” test what P hopes to gain from the suit value of a right is measured by the losses that will follow from the statute’s enforcement.

o “Legal Certainty” test The allegation of the jurisdictional amount in good faith is subject to being defeated only if it is shown “to a

legal certainty” that P never had any prospect of recovering any amount above the threshold.o “Loss to the Defendant” test

use if P seeks an injunction to protect a right of little monetary value, so P alleges less than jur. amt. – but the injunction would adversely affect D’s business (shut it down)

o Aggregation If 2 alternative claims are asserted for the same damage, they are not added; claims by different Ps are not

added. If multiple Pls. (i.e. class action), one Pl. must be asking for $75k alone

Williams v. Kleppe “real and substantial interests” in regulation outweighed the “minor” interest in skinny-dipping

D. Supplemental Jurisdiction Every single claim in federal court must have subject matter jurisdiction. However, supplemental jurisdiction lets a federal

court hear a claim that otherwise couldn’t go to federal court. 28 U.S.C. § 1367

o (a) In any civil action of which D.Cts. have original jurisdiction, they shall also have supplemental jurisdiction over all other claims that are so related to claims in the action that they form part of the same case or controversy under Const. Art. III.

o (c) D.Ct. may decline to exercise supplemental jurisdiction under (a) if… (1) the claim raises novel or complex issue of state law

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(2) the claim substantially predominates over claim over which D.Ct. has original jurisdiction (3) the D.Ct. has dismissed all claims over which it has original jurisdiction (4) in other exceptional circumstances

P cannot assert a state-law claim in fed. ct. against a co-citizen merely b/c that party has been brought into the case by D.Pendent Jurisdiction

The state-law claim comes within fed. jur. b/c it “hangs” on the fed. claim

United Mine Workers v. Gibbs State and Federal law claims may be joined if they derive from a common nucleus of operative fact Replaced pendant jurisdiction w/ 28 USC § 1367 (supplemental jurisdiction) If it appears that state claims predominate (whether in terms of proof, scope of issues raised, or

comprehensiveness of remedy sought) the state claims may be dismissed from federal action and left for resolution by state courts.

Ancillary JurisdictionAllowed federal court to hear counterclaims, 3rd party claims, cross-claims, or other added claims that lack an independent jurisdictional basis but should be heard in the same suit as the principal claim.When a fed. ct. “effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interests, w/o regard to jur.”

Kroger Case Kroger sued a diverse defendant (OPPD) who then impleaded Owen (corporation). Owen was not diverse

from either original party. Kroger then directly claimed against Owen, as Rule 14(a) allows. The court held ancillary jur. was improper. Extending jur. to this claim would be inconsistent with the long-

standing interpretation of § 1332, requiring complete diversity between the parties. The court suggested that ancillary jur. could be exercised over compulsory counterclaims, cross-

claims, and third-party claims. (OPPD’s claim against Owen was ok) The ct. emphasized the difference b/w claim of a defending party, brought in against its will, and P, who had the choice to sue all parties jointly in state court.

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P (Utah)

Fed. Age Discrimination Act.jur. proper under 28 U.S.C. § 1331

D (Utah)

contract breachno independent basis for fed. jur.

Owen (Nebraska and Iowa)

Kroger(Iowa)

no independent basis for subject-matter jurisdiction

proper diversity claimOPPD

(Nebraska)

Rule 14(a)impleader

Abstention DoctrinesIn certain situations, the fed. cts. will decline to exercise the jur. given them by the Const. and statutesThere are at least 4 situations in which these “abstention doctrines” may apply:

o (1) when the decision of a const. question might be avoided by interpretation of state law;o (2) when a fed. decision might unnecessarily conflict with a state’s governmental affairs;o (3) when a significant issue of state law is unsettled; ando (4) when there are parallel state and fed. proceedings and abstention will reduce the fed. workload

“Certification” procedures – a fed. ct. seeking guidance on a state law question can “certify” the state law question to that state’s courts for an answer before proceeding further in the case before it.A fed. ct. may not probate a will or administer an estate.

E. Removal – (Allows a D to have a state court case removed to federal court. Gives the D a choice.)28 USC § 1331

o (a) Any action brought in state ct. of which federal ct. have original jurisdiction may be removed to district ct. where action is pending by ∆

o (b) Any action that federal cts. have original jurisdiction shall be removable w/o regard to citizenship of parties - ∆ sued in home state may not remove based on diversity jurisdiction

28 USC § 1445 – Non-removable actions – those against RR, carriers, arising under workmen’s compensation or under Violence against Women act of 199428 USC § 1446 – Procedure for Removal - ∆ shall file notice in federal ct. w/in 30 days of receipt of initial pleading – (b) If the case stated by the initial pleading is not removable, a notice of removal may be filed w/in 30 days after receipt by ∆, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may 1st be ascertained that the case is one which is or has become removable…BUT a case may not be removed on the basis of jurisdiction conferred by § 1332 more than 1 yr. after commencement of the action (amd. that makes case removable not available in diversity cases)28 USC § 1447 – Procedure after Removal – D.Ct. may issue orders and bring before it all parties; may req. moving party to file records from state ct.; Motion to remand may be made w/in 30 days after filing notice of removal; Order remanding case to state ct. not reviewable on appeal; If after removal, Pl. seeks to join addl. ∆ whose joinder would destroy s-m jurisdiction, the ct. may deny joinder or permit joinder and remand to state ct.§ 1441 allows D to remove to federal court if it would be suitable for filing there by P.Removable if case meets federal subject matter jurisdiction (Diversity or federal question)

o Exception: you cannot remove a diversity case if ANY defendant is a citizen of the forum. If we want to remove, all defendants must agreeYou can only remove to the federal district that embraces the state court.

o Ex: if case was filed in St. Louis, you can only remove to the state district in Missouri. Must remove within 30 days of service of the document that makes the case removable (usually, original

complaint)Some claims non-removable by statute (e.g. Fed. Employers Liability Act)Remand only allowed under 28 USC § 1447(c) if removal was improper

Caterpillar Inc. v. Lewis Pl. sued two s - no diversity jurisdiction at first – one Pl. and one ∆ from KY If the case is not originally removable, and then ∆ realizes the case is now removable (a has dropped off

& diversity jurisdiction now exists), then ∆ has 30 days after being served summons/ amended pleading & not more than 1 yr after the suit file a motion for removal

Absence of complete diversity during suit, but there was complete diversity by trial time, there was complete diversity after 1 yr. time limit but motion for removal was filed before 1 yr. limit

Even though this was done wrong, we’ll let this one slide b/c it will not cause similar problems -- once a diversity case has been tried in a federal court, they must consider time, efficiency, finality and economy principles (finality & efficiency are important interests)

30 day rule allowing removal motion applies as long as it is not a “real jurisdictional defect”

III. The Erie DoctrineA. State Substantive Law in Federal Courts (Problem only comes up in diversity cases)

In diversity cases, fed. cts. must apply the law that would be applied by the cts. of the state in which they sit.Rather than create “general common law,” their job in a diversity case is to apply state common law.

o A fed. ct. construing state law should give “proper regard” to decisions of trial and intermediate appellate courts, but its job is to apply the law as announced, or as it would be announced, by the state’s highest court.

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o The judge is entitled to make an educated judgment on what rule the state supreme court would apply to the case today, rather than merely parroting what the rule was when the last case on point was decided.

o Can certify the question, but state supreme court has the discretion to accept or refuse the certification.

28 U.S.C. § 1652 – The laws of the several states, except where the Const. or treaties of the U.S. or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the U.S., in cases where they apply.

Erie Railroad v. Tompkins Facts – Pl. sued ∆ in federal ct. for contributory negligence, causing Pl.’s injuries in PA while walking along

a RR track at night Issue – Should state law or federal interpretation of what state law should be prevail? Erie doctrine – In a diversity case, the federal cts. sitting in a particular state will follow that state’s

“substantive” law Purposes – eliminate forum shopping eliminate inequitable application of the laws Overturns Swift v. Tyson which allowed federal cts. to use independent judgment in determining what the

law of the state is – or should be; Criticism – confusing, creates uncertainty, prevented uniformity of decisions under the laws

Black letter rule: The federal court must apply state SUBSTANTIVE law. o This result is commanded by:

Rules of Decision Act (RDA) 10th Amendment says federal government cannot invade powers of state government (federalism).

o How do we know it’s substantive? In many instances, it’s the elements of the claim under state law.

Starting point is Hanna v. Plumer.o Under Hanna, is there some federal directive (federal statute or federal rule that applies

on point on this issue?) If so, then the federal directive wins and trumps state law. Provided the fed. directive is valid.

We know it is valid because it is an FRCP and therefore valid under rules enabling acts 2071—Hanna prong of analysis.

Hanna is always the starting point.o If we have no federal directive on point, does the judge have to apply state law or can she ignore it? (Erie Question)

In this instance, we have to follow substantive law and we can find out if its substantive through 3 tests: Is it outcome determinative? Case has to come out the same way in state court as in federal court. Balance the interest – Federal court should probably follow state law, unless there is a federal

interest in doing it differently. Twin aims of Erie Test

o To avoid forum shoppingo The inequitable administration of the law

B. Federal Procedural Law28 USC § 2071

o (a) S.Ct. and all est. cts. may prescribe rules for conduct of businesso (b) Any rule by ct. (other than S.Ct.) shall be prescribed only after public notice and commento (c) Rule of D.Ct. shall remain in effect unless modified by Cir.o (d) Rule of S.Ct. shall remain in effect unless modified by Judicial Conf.

28 USC § 2072 (Rules Enabling Act)–o (a) S.Ct. has power to prescribe general rules of practice and procedure and rules of evidence for D.Ct. and Ct. App.o (b) Such rules shall not abridge, enlarge, or modify any substantive right. All laws in conflict w/ such new rules shall

be of no further force or effect after such new rules have taken effectApproaches to Application

Outcome Determinative – If the rule was likely to make a difference in the result, a rule was probably “substantive” – even if it “looked like” a procedural rule. (Guaranty)“Absolute” Outcome Determinative – Confined outcome determination test to rules that had a “strong” likelihood or even a “certainty” of affecting the outcome. (Byrd)Interest Balancing – Classify substance and procedure by the strength of the competing state and fed. policies underlying the different rules in question. (Byrd)

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Deference to a Controlling Fed. Rule – When the substance-procedure distinction is ambiguous, there should be deference to controlling provisions in the Fed. Rules (Hanna)Policies-of-Erie Approach – If the application of fed. law would produce irrational differences in results and encourage forum shopping, the matter is substantive; if not, it is procedural. (Hanna)

Guaranty Trust Co. v. York In all cases where a fed. ct. is exercising jur. solely b/c of the diversity of citizenship of the parties, the

outcome of the litigation in the fed. ct. should be substantially the same, so far as legal rules determine the outcome of the litigation, as it would be if tried in a State court.

If a plea of the statute of limitations would bar recovery in a State ct., a fed. ct. ought not to afford recovery. Fundamental flaw in outcome-determinative test: If a procedure ever makes a difference, it ceases to be

procedural. Destroys the possibility of meaningful rules of “procedure.”Byrd v. Blue Ridge Rural Electric Cooperative, Inc.

“Definitely” Outcome Determinative – A substantive state rule is one “which, if all the facts were stipulated, would be meaningful in analyzing the rights and liabilities of parties to a dispute if they were to settle it on the day of filing suit, taking into account the necessity of filing suit, but without actually filing it.” (Boggs)

Interest balancing approach —Even though who decides immunity could affect the outcome, the 7th Amendment should be followed because the 7th Amendment is really important in the federal system and on balance, the South Carolina rule is not important. It is just a procedural rule.

New rule modifying York—Even though the result might be different, it also might be the same. There is not present here the certainty that a different result would follow, or even the strong possibility that this would be the case.

What problem is there with the balancing test? How do we assign the weight to each side in these cases and who has that responsibility?

Hanna v. Plumer Service left at home according to FRCP, but MA statute req. in-hand service Service small matter – not reason for forum shopping; not discriminatory Erie has never been invoked to avoid a federal rule Hanna Part I indicates that a diversity court should still choose the state rule if the difference between it and

the federal practice could prove “outcome determinative,” in the sense that following a separate federal practice could lead to forum shopping or inequitable administration of the laws.

Hanna Part II -- If a FRCP directly conflicts with state law, the Federal Rule applies if it is valid.Gasperini v. Center for Humanities, Inc.

Even though FRCP 59 is procedural (allows new trials if outcome “shocks the conscience” of the judge), the outcome is substantially different when applying state law, so the ct. must apply state law

“Erie has never been used to invalidate a federal rule, and it should not be done so here” Even if a rule appears procedural, it may be substantive. Federal rules test – assuming that all FRCP are

procedural is naïve, though pragmatic Req. examination of both federal rule analysis and state substantive analysis Federal cts. must apply state law that indicate a std. for reviewing awarded damages rather than federal law

alone b/c the outcome could be significantly alteredHanna and Gasperini

Erie and Hanna – apply federal procedure ruleGasperini – apply state procedure ruleIf in conflict w/ state law, FRCP can be interpreted as “substantive” in addition to proceduralConflict of law rule – substantive (b/c it can definitely change the outcome) – federal cts. will always apply state conflict of law rules b/c it is substantive

C. Choice of LawEvery state has principles of law that tell its courts when to follow the law of some other state. This problem is called the “conflict of laws” or “choice of law.”Constitutional limitations – the Due Process Clause requires “a significant contact or aggregation of contacts, creating state interests, such that the choice is neither arbitrary nor fundamentally unfair.”

Approaches to Conflict of LawsLex loci delicti -- “law of the place of the injury.”“Most significant” relationship -- which state has the “most significant relationship” to the occurrence and the parties.“Comparative Impairment” – apply laws of the State whose policy would be more seriously impaired if its law were not followed

Pennington v. Dye

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“Most significant relationship” test – while incident happened in Florida, Res. indicated that the state of domicile (Ohio) would have the “dominant interest” in the values of marital harmony and prevention of collusive claims against insurers of its citizens that were the basis of the interspousal immunity doctrine.

Klaxon Co. v. Stentor Electric Mfg. Co. Erie extends to the field of conflict of laws. A fed. ct. sitting in NY would apply the conflict of laws rules that

a state ct. in NY would apply.

IV. PleadingsA. Common Law Pleadings

P’s SuitP began suit by obtaining a “writ” from the chancellor. Capias ad respondendum commanded the sheriff to seize D’s person. Later, the writ was simply served on D.The analogue to today’s complaint was the “declaration” filed by P.

D’s PleadingIf the declaration was insufficient on its face to show a right of action even if the truth of all the facts was admitted, or if it was technically defective in form, D could prevail on a demurrer. (It’s true, but so what?)A traverse was the common law analogue of today’s denials. (It isn’t true)A confession and avoidance was the analogue of an affirmative defense. (It’s true, but here are some other facts that P hasn’t told you)

The Single IssueDuplicity, asserting 2 different defenses to the merits, was strictly prohibited.Departure – Each pleading had to be responsive to opponent’s before it and consistent with the party’s own prior pleas.

Forms of ActionThere was no general-usage civil action, and if pleader misconceived case at outset, she could obtain no relief.Evidence at trial had to conform to the pleadings with a strict kind of accuracy.

B. Code PleadingThe Field Code abolished the forms of action, merged law and equity, limited pleadings to 4 functional categories, limited the effects of technical errors, and required pleading of “facts constituting the cause of action.”A COA was the set of ultimate facts that P must plead and prove to prevail on a given claim. The omission of any element would make the complaint defective.

Gillispie v. Goodyear Service Stores A complaint must contain a plain and concise statement of the facts constituting a cause of action. The facts constituting a COA, rather than the conclusions of the pleader, must be set out in the complaint,

so as to disclose the issuable facts determinative of P’s right to relief.

C. Standards for the Federal ComplaintFRCP 7 – Pleadings

o (a) Pleadings allowed: complaint and answer, reply to counterclaim, answer to cross-claim if it contains a cross-claim, third-party complaint (Rule 14: D brings third party who may liable), third party answer, if needed. No other pleadings are allowed except as ordered by the court.

o (b) Written motion is needed to request a court order, it must state grounds for motion and the relief or order requested, rules regarding form and captions of pleadings apply, must be signed.

FRCP 8 – General Rules of Pleadingo (a) Claims for relief, regardless of type are to contain:

(1) short, plain statement of the grounds on which the court’s jurisdiction depends, (2) short, plain statement of the claim showing that the pleader is entitled to relief, (3) a demand for judgment for the relief sought

o This requirement changed because of Twombly and Iqbal, which have laid out three rules: Plaintiffs must plead facts supporting a plausible claim. Court will ignore conclusions of law

If the P has alleged conclusory statements Court will use its own experience and common sense to determine whether a claim is plausible.

NO DOUBT THAT THIS IS A LOT MORE SPECIFIC THAN IT USED TO BEo (e)(1) Each statement of a pleading is to be simple, concise and direct. No technical forms are needed. (2) A party

may state two or more claims or defenses alternatively or hypothetically. As long as at least one is sufficient, the pleader is not penalized for other insufficient statements. All pleadings are to be signed (Rule 11).

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o (f) All pleadings shall be so construed as to do substantial justice.FRCP 84 - Forms contained in the appendix of forms are sufficient under the rules.Form 9: Complaint for negligenceForm 10: Negligence – plaintiff doesn’t know who is responsible

Conley v. Gibson Court construed R 8(a)’s requirement of “a short and plain statement of the claim” to require only “notice

pleading,” (sufficient specificity to give the respondents fair notice of its basis).Dioguardi v. Durning

Under FRCP, there is no pleading req. of stating “facts sufficient to constitute a cause of action,” but only that there be “a short and plain statement of the claim showing that the pleader is entitled to relief,” and the motion for dismissal under R 12(b) is for failure to state “a claim upon which relief can be granted.”

The premise underlying FRCP is that pleadings can be general b/c discovery supplies the details.FRCP 12 – Defenses and Objections

o (b) Every defense to a pleading shall be asserted in the responsive pleading with the exception of the following (which may be made by motion):

(1) lack of subject matter jurisdiction (2) lack of personal jurisdiction (3) improper venue (4) insufficiency of process (5) insufficiency of service of process (6) failure to state a claim upon which relief can be granted (7) failure to join a party under Rule 19 (persons needed for just adjudication) 12(b)(6) motion – Only if it can be said w/ reasonable certainty that P can prove no set of facts that would

entitle her to any of the requested relief can the dismissal be granted.o (e) A party may move for a more definite statement before responding to a pleading that is vague or ambiguous.

The motion is to point out the defects and desired details. If the motion is granted and the order is not obeyed within 10 days (or other time fixed by the court), the court my strike the pleading or make such order as it deems just.

o (f) The court may order stricken from any pleading any insufficient defense, or any redundant, immaterial (mental & physical anguish), impertinent or scandalous matter if the motion is made by a party prior to responding the pleading or within 20 days after service if no responsive pleading is allowed.Fox v. Lummus

Motion to strike is like a miniature “motion to dismiss” aimed at a single allegation or set of allegations instead of at the entire complaint.

FRCP 9 – Pleading Special Matters – where you need even more detail:o (b) In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with

particularity. Malice, intent, knowledge and other conditions of a mind of a person may be generally stated.o (c) In pleading the performance or occurrence precedent, it sufficient to generally state that all conditions precedent

have been performed. A denial of performance shall be stated particularly.o (g) Special damage claims are to be stated specifically.

Form 13 - Complaint of claim for debt and to set aside conveyance under Rule 18(b) (state a claim which is based on the outcome of another claim).

Sweeny Co. v. Engineers-Constructors, Inc. Complaint is not specific enough – under R 9(b), claims of fraud must be stated with particularity. P should plead in the complaint who allegedly has done what, when, where, and why. To succeed, P has to show that, at the time of contracting, D had the fraudulent intent to obtain P’s

performance and pay nothing. Some cases hold that the particularilty req. just extends to the method of committing the alleged fraud, so that P need not detail the time, place, person, etc.

General v. Special Damagesnaturally and necessarily = general damagesspecial damages follow naturally, but not necessarilymedical expenses are special damages, b/c you might opt to not go to the doctor; must plead special damages w/ degree of specificity, but not w/ evidentiary detail R 9gshould divide a pleading b/w special and generalspecial damages: damages that flow naturally but not necessarily, ex. med expenses.

Defendant’s Pleadings – Rule 12 tells us that when you get sued, after you get served with process, within 21 days after service, you must respond in one of two ways.

Respond by motion20

Motion is NOT a pleading! Motion is a request for a court order.o Rule 12(e) – motion for more definite statemento Rule 12(f) – motion to strikeo Rule 12(b) – motion to dismiss

Respond by Answer An answer is a pleading.

o Defenses in 12(b) can be raised either in a motion or an answer. This gives rise to a testable point:

SMJ PJ Venue Insufficient process (problems with documents) Insufficient Service of Process Failure to state a claim Failure to join an absentee under Rule 19 (indispensible party problem)

o Rules 12(g) & (h) Boil down to two rules:

12(b)(2)(3)(4)(5) MUST be put in your first Rule 12 response or else they are waived. These are called the waiveable.

12(b)(6)(7) can be raised at any time during the trial. You couldn’t raise them for the first time on appeal, though.

12(b)(1) is not waivable, you can raise it at any point in time. Two things that must go in an answer:

2. Admissions and DenialsFRCP 8 – Rules of Pleading…respond to the complaint in 3 ways:

o (b) A party shall state in short and plain terms the party’s defense to each claim asserted and shall admit or deny the averments on which the other party relies. If a party does not have knowledge or info to form a belief as to the truth of a statement, the party shall state such and the statement will have the effect of a denial. Denials shall be as specific as the claims. The pleader may deny parts of the statements or deny all averments with a general denial as set forth in Rule 11 (denials of factual contentions are warranted on the evidence or reasonably based on a lack of information or belief).

Admit some stuff Deny some stuff In appropriate circumstances, you will say you lack sufficient information.

Failure to deny is treated as an admission! True on anything except damages.o (c) – raise affirmative defenses

An affirmative defense is different from a denial; you are injecting a new fact. If you are right, you will win. (Statute of limitations; fraud)

You must plead affirmative defenses in your answer or you risk waiver!FRCP 12 – Defenses and Objections

o (a) time limits for (1) D to serve an answer; (2) answer to cross-claim or counterclaim; (3) officer or employee of US; (4) alterations of time for service of a motion under this rule

o (g) A party who makes a motion under Rule 12 may join it with other motions available to the party. If a party makes a motion under this Rule 12 and doesn’t include any defense or objection then available, the party is not allowed to later make a motion for the omitted defense or objection except under 12(h)(2).

o (h) – waiver of certain defenses.Form 19 -- Motion to Dismiss, defenses of failure to state a claim, lack of service, improper venue and lack of jurisdiction under Rule 12(b)Form 20 -- Answer presenting defenses under Rule 12(b)Form 21 -- Answer to complaint set forth in Form 8 (Complaint for money had and received), with counterclaim for interpleader

White v. Smith R 8(b) req. only that def. shall be stated “in short and plain terms.” Gen. denials which controvert all of a

complaint’s averments are acceptable under the rule if they are made “in good faith” subj. to R11. A pleading filed in violation of R11 may be stricken as sham and the action may proceed as though the

pleading had not been served.3. Affirmative Defenses

Adds a new fact or set of facts that defeats the claim even if P proves all of the elements.

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A denial is insufficient to raise an affirmative defense; it must be pled affirmatively. In general, the burden of proving the elements of the defense is also assigned to D.Whether a def. theory is an affirmative def. is determined by reference to the substantive law governing the claim.A def. that merely negates some element of P’s prima facie case is not a true affirmative def. and need not be pleaded.

Gomez v. Toledo P does not have the information to properly disprove D’s defenses. D has the burden of proof for defenses.

4. Plaintiff’s ReplyUnder R 7, P is required to file a reply to a counterclaim. Otherwise, no reply is needed unless ordered by the court. A req. of a reply would place the same duty of pleading upon P that is placed on D.If the court does not order a reply, R 8(d) says that the allegations of the answer automatically “shall be taken as denied or avoided.”

D. Certifications and SanctionsFRCP 11 – Sanctions

o (a) Each pleading, motion, paper, shall be signed by attorney (or if no attorney, by party). Each paper shall state signer’s address, phone number. Pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to attention of attorney.

o (b) By presenting to the court (by signature, filing, submitting or later advocating), the attorney or individual (in unrepresented) is certifying that to the best of the person’s knowledge, information and belief, formed after a reasonable inquiry:

(1) no improper purpose such as to harass, delay, or unnecessarily increase litigation costs (2) claims, defenses, legal contentions are warranted by existing law or by a nonfrivolous argument for the

extension, modification, or reversal of existing law or the establishment of new law (3) The factual contentions have evidentiary support or are likely to have support after discovery; and (4) The denials of factual contentions are warranted.

o (c) If after notice and a reasonable opportunity to respond, the court determines Rule 11(b) has been violated, the court may impose an appropriate sanction on the attorney, law firm or parties that have violated the rule or are responsible for the violation.

(1)(a) Initiated by motion that shall not be filed unless within 21 days after service, the challenged doc has not been withdrawn and corrected. The court may award reasonable expenses and attorney’s fees to the prevailing party. The law firm will be held jointly responsible for violations committed by its partners, associates, and employees.

(1)(b) [Rare] On its own initiative, the court may enter an order that describes the conduct that appears to violate Rule 11(b) and direct the attorney, law firm or party to show cause why it has not violated the rule. [No time to fix it if this happens.]

(2) A sanction shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others. May consist of: non-monetary directives, penalty paid to the court, or if imposed on motion and warranted for effective deterrence, payment of some or all of the moving party’s attorney’s fees and other expenses incurred as a result of the violation. (A) Monetary sanctions may not be awarded against a represented party for a violation of Rule 11(b)(2). (B) Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party or the party’s attorneys to be sanctioned.

(3) When imposing sanctions, the court shall describe the conduct determined to constitute a violation and explain the basis for the sanctions imposed.

o (d) Sanctions do not apply to disclosures, discovery requests, responses, objections and motions that are subject to Rules 26 through 37 (depositions and discovery).

1. History of Rule 11Before 1983, R11 req. proof of subjective bad faith. It had to be shown that the attorney actually did not believe the pleading was proper. The rule could rarely be enforced.In 1983, R11 amended so that an attorney whose improper pleading was not based on a “reasonable investigation” was subject to a mandatory sanction.In 1993, R11 req. notice and an opportunity to cure, and made sanctions discretionary.

2. 1983 Amendment: Objective Standard Requiring a “Reasonable Inquiry”Eastway Construction Corp. v. City of New York

No longer is it enough for an attorney to claim that he acted in good faith, or that he was unaware of the groundless nature of an argument or claim. Good faith no longer provides the safe harbor it once did.

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3. 1993 Amendment: 21-Day Safe Harbor and Discretionary SanctionsUnder safe harbor, alleged offender has 21 days to withdraw or correct with no adverse consequences. Only if no corrective action is taken may the motion be filed with the court for futher action (sanctions). The result has been a decrease in R11 motions and sanction awards.

Hadges v. Yonkers Racing Corp. An attorney is entitled to rely on the objectively reasonable representations of the client. Since Hadges was not served w/ req. for sanctions 21 days before presenting it to the ct., did not comply

with safe harbor and allowed no time to correct deficiency of the complaint.4. “Inherent” Power

R11 is limited to papers filed, but fed. cts. also claim an “inherent power” to sanction attorneys for misconduct in any proceedings. Sanctions are also available in state courts under many state statutes.

E. AmendmentRule 15 – Amended and Supplemental Pleadings

o (a) A party may amend the party’s pleading once at any time prior to a responsive pleading being served or if the pleading doesn’t permit a response and it hasn’t been placed on the trial calendar, the party may amend it at any time within 20 days of after it is served. Otherwise a party may not amend its pleading only by leave of court or written consent of the other party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days of service of the amended pleading, whichever is longer unless the court orders otherwise.

o (b) When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings. Such amendment to the pleadings as may be necessary to cause them to conform to the evidence may be made upon the motion of any party at any time, even after judgment. Failure to amend doesn’t affect the trial on these issues. If evidence is objected to at trial because it is not within the issues raised by the pleadings, the court may allow amendment of the pleadings if the merits of the action will be served and the objecting party is unable to show that amendment will prejudice the party. The court may grant a continuance to enable the party to meet such evidence.

o (c) An amendment of a pleading relates back to the date of the original pleading when: (1) it is permitted by the statute of limitations; (2) the claim or defense in the amended pleading arose out of the transaction or occurrence set forth or

attempted to be set forth in the original pleading; (3) the amendment changes the party or the naming of the party if (2) above is satisfied and within the time

set by Rule 4(m) (120 days after filing complaint), the party has such received notice of the action that the party will be able to maintain a defense or knew or should have known that but for a mistake concerning the identity of the proper party, the actions would have been brought against the party.

o (d) Upon motion of a party, the court may permit the party to serve a supplemental pleading setting forth transactions or occurrences or events that have happened since the date of the pleading sought to be supplemented. If the court deems it advisable to the adverse party to respond, the court will order it and set the timeframe.Beeck v. Aquaslide ‘N’ Dive Corp.

R15(a) – once issue is joined, a party may amend only be leave of court, and leave shall be freely given when justice so requires.

Amendment granted unless prejudice shown. Burden on the party opposing amendment to show prejudice.

F. Texas PleadingsP’s pleading is called a petition in Texas. The petition must state a COA and give fair notice of P’s factual contentions as well as P’s legal theories.Fair notice req. a statement of the factual bases of P’s claim, but it is not necessary that P plead the evidence on which P places reliance. (roughly the same degree of specificity as Form 9)

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V. Multiple Parties and ClaimsA. Counterclaim and Cross-claim

FRCP 13 – Counterclaim and Cross-claimo (a) Compulsory counterclaim - shall be stated in pleading against any opposing party if it arises out

transaction that is subject matter of opposing party’s claim and does not req. presence of 3rd parties over whom ct. would not have j.d. for adjudication. – must exist @ time of pleading; not compulsory if relating to prior pending claim; if not filed, counterclaim is barred from further actions; ok under 28 USC § 1367(a)

o (b) Permissive counterclaims – Pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim – probably not ok under 28 USC § 1367(a)

o (c) Counterclaim exceeding opposing claim – counterclaim may (or not) diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amt. or different in kind from that sought in the pleading of the opposing party.

o (d) Counterclaim against U.S. – rules will not be enlarged beyond limits now fixed to assert counterclaims or claim credits against U.S. or officer or agent of.

o (e) Counterclaim maturing or acquired after pleading – Claim which either matured or was acquired by pleader after serving pleading may, w/ permission, be presented as counterclaim in supplemental pleading

o (f) Omitted counterclaim – when pleader fails to set up counterclaim through oversight or excusable neglect, or when justice req., the pleader may by leave set up the counter by amd.

o (g) Cross-claim against co-party – pleading may state as cross-claim any claim by one party against co-party arising out the transaction that is s-m either of the original action or of a counterclaim therein or relating to any property that is the s-m of the original action. Cross-claim may incl. claim that party against whom it is asserted may be liable to cross-claimant for all or part of claim asserted in action against cross-claimant

o (h) Joinder – persons other than those made parties to original action may be made parties under FRCP 19 & 20

Rule 19 – necessary and indispensible parties Plaintiff left someone out. If an absentee is floating around, the court will reach up and grab the

absentee and force absentee into the case. Who is necessary? This rule gives us 3 tests for determining when a non-party must be forced into a case

o 19(a)(1)(a) – without absentee, the court cannot accord complete relief among the parties. What we are worried about is efficiency. This is fairly easily met.

o 19(a)(1)(b)(1) – absentee’s interest may be harmed id he/she is not joined. Worried about the absentee. MOST IMPORTANT.

o 19(a)(1)(b)(2) – here the absentee’s interest may subject the D to multiple or inconsistent obligations. We are worried about the defendant.

Is joinder of the absentee feasible?o It is feasible if there is personal jurisdiction over the absentee and id bringing him in

doesn’t mess up diversity. If we can do this, we do it. What if it isn’t feasible?

o We either proceed without the absentee. ORo Dismiss the case

Court considers if P will still have an adequate remedy?

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Tom

Dan

Cross-Claim

Counterclaim

Rule 13(a) & 13(b) – claim against an opposing party. Ordinarily, this is by the defendant against the Plaintiff. This goes in the answer.

13(a)(1) – compulsory counterclaim – arises under the same transaction or occurrence as the plaintiffs claim. YOU MUST ASSERT THAT CLAIM ON THIS CLAIM!! You cannot sue on a different case. The future case is barred. You gotz to use it or lose it!

13(b) – one that does not arise from the same transaction or occurrence as the plaintiff’s claim. It does not need to be asserted here. You can file it here but you don’t have to.

Rule 13(g) – cross claim against a co-party – (NOT AGAINST AN OPPOSING PARTY) You can only do this if you have multiple parties. The claim must arise from the same transaction or occurrence as the underlying case.

Cavanaugh v. Western Maryland Railway Co. RR brought counterclaim against former – and injured – employee not to avoid liability but to offset losses

caused by employee’s negligence RR counterclaim meets req. under FRCP 13(a) – made against opposing party; arose out of same

occurrence (train wreck); matured at time of pleading; wasn’t pending sep. before action If RR had not brought counterclaim at this time, it would have been barred subsequently

B. Third-party claims (Impleader)

FRCP 14 – Impleadero (a) When D may join 3rd party – at any time after commencement of the action a defending party may cause a

summons and complaint to be served upon a person not a party who is or may be liable to 3rd party Plaintiff (not defendant who is interpleading 3rd party) for all or party of Pl.’s claim against 3rd party Pl.;

o (b) When a counterclaim is asserted against a Pl., the Pl. may cause a 3rd party to be brought in under circumstance which under this rule would entitle a ∆ to do so

o THIS IS NOT A CROSS-CLAIMo Under Rule 14, P can also assert a claim up against the third party defendant, of it arises from the same transaction

or occurrence. That makes this diagram a triangle. This is a 1483 claim.Form 22A: Summons and Complaint Against Third-Party DefendantForm 22B: Motion to Bring in Third-Party Defendant

Barab v. Menford D brought in a 3rd party, & that 3rd party attempted (unsuccessfully) to implead someone else as a 3rd party. R14 says D must plead that 3rd party is “liable to him (D) for all or part of P’s claim against him.” It is not

enough for D to show that P could assert a claim against 3rd party; D must allege that D has a claim against 3rd party (usually for contribution or indemnity). 4th-party claim is invalid.

Although the 3rd party must be potentially liable to P for P’s injuries, the 3rd party claim need not proceed on the same theory as the main action. The key question is whether the liability is in some way dependent upon the outcome of the main claim.

Under R14, after 10-day period, D must obtain leave of court to implead a 3rd party. In exercising its discretion, court considers 4 factors:

(1) the timeliness of the motion for leave; (2) whether the 3rd party action would introduce an unrelated controversy or unduly complicate the

case so as to prejudice P; and (3) whether it would serve the policy of R14 by avoiding circuity of actions and settling related

matters in one suit. (4) possibility of inconsistent judgments.

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Paul

Tom (third-party defendant)

Dansues

“impleads”

C. Permissive Joinder

FRCP 20 – Permissive Joinder of Partieso (a) all persons may join in one action as Plaintiffs if they assert any right to relief jointly, severally, or in the

alternative in respect of or arising out of the same transaction, occurrence, or series…and if any question of law or fact common to all will arise in the action. All persons…may be joined in one action as Defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series and if any question of law common to all ∆ will arise in the action.

o (b) Separate trials – ct. may make orders to prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials to prevent delay or injustice.Grogan v. Babson Brothers Co.

R20(a) has 2 req. for joinder: (1) right to relief asserted by, or against, each P or D relating to or arising out of the same transaction or occurrence; and (2) common question of law or fact.

When there is no showing that P seeks to join the additional Ds solely to effectuate a remand, “in the exercise of sound discretion the court may permit a new party to be added, although his citizenship destroys diversity and requires a remand.” Joinder is to be construed liberally.

D. Consolidation, Separate Trial, and SeveranceFRCP 18 – Joinder of Claims and Remedies

o (a) Joinder of claims – party asserting claim to relief as original claim, counterclaim, or cross-claim or 3rd-party claim, may join, either as independent or as alternate claims, as many claims as the party has against an opposing party

P can join all the claims she wants. They do not need to be related at all and there is no limit. A P may but need not to. After all the claims have been submitted, we have to determine SMJ.

o (b) Joinder of remedies - whenever claim is only cognizable after another claim has been prosecuted, the two may be joined in single action.

FRCP 42 – Consolidation; Separate Trialso (a) Consolidation - if actions involve common questions of law or fact are pending, it may order joint hearing or trial

of any or all of the matters in issue; it may order all consolidated; it may make orders to avoid delay or costso (b) Separate trials – to further convenience or avoid prejudice, the ct. may order separate trials of any claim…always

preserving inviolate the right of trial by juryFRCP 21 – Misjoinder and Non-joinder – Misjoinder is not grounds for dismissal of an action. Parties may be dropped or added by order of the ct. on motion or by initiative at any stage.FRCP 25 – Substitution of Parties

o (a) Death – (1) ct. may order substitution of proper parties; (2) action does not abate but proceeds w/ surviving parties

o (b) Incompetency – ct. may, by motion, allow continuation of action by or against representativeo (c) Transfer of Interest – action continued by or against original party, unless ct. upon motion directs the person to

whom interest is transferred to be substitutedo (d) Public officers

Henz v. Superior Trucking Co. R13 req. counterclaims to be matured and in existence at the time of pleading. The Rule does not contain

any provision for claims that “may” exist in the future. R14 does allow D to implead a person who “is or may be” liable, and therefore it was no impediment

that the contribution claim was not matured; however R14 does not permit a 3rd party claim to be asserted against a person who is already a party to the suit.

Court granted a severance, so that in W’s suit, H was not a party and W could seek contribution from him as a 3rd party claim. Once this result, could probably be put back together by consolidation under R42.

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P can sue either or both - Permissive

R42 does not contain a “same transaction” req. It is used for multiple cases that arise from unrelated incidents, but have important common issues.

E. Compulsory JoinderFRCP 19 – Joinder of Persons Needed for Just Adjudication

o (a) Persons – person who is subject to service and whose joinder will not deprive ct. of s-m j.d. shall be joined if (1) person’s absence would negate complete recovery for those already parties, or (2) the person claims interest relating to subject of action and is situated that disposition in person’s absence would (i) impair or impeded person’s ability to protect that interest or (ii) leave any persons already parties subject to risk of incurring multiple obligations as result of claimed interest. – Venue provisions based on where ∆ lives; if new ∆ does not live in same state as existing ∆, then new ∆ dismissed b/c it would disrupt venue

o (b) Determination when joinder not feasible – if person cannot be made a party the ct. shall determine whether the action should proceed or be dismissed w/ absent party being regarded as indispensable. Factors considered in “balancing test”

(1) to what extent a judgment rendered w/o party might be prejudicial to person or those already parties; (2) extent to which the prejudice can be lessened or avoided by protective provisions in judgment, shaping

of relief, etc.; (3) whether judgment rendered w/o person will be adequate; (4) whether Pl. will have adequate remedy if action is dismissed for non-joinder

o (c) Pleading reasons for nonjoinder – shall state names of those not joined and reasons for non-joindero (d) Class actions separate

Existing suit cannot properly accomplish its purpose (give “complete relief”) or there may be unfair repercussions to the absent person or to the parties.

Provident Tradesmens Bank & Trust Co. v. Patterson Bkgd. – D had ins. policy w/ LMC; D loaned his car to C, who had accident and killed 2 others and injured

one. L’s estate sued for declaratory judgment, alleging that D’s ins. policy covers C’s liability. D was not made party. If L’s estate succeeded, all $100k could be paid to L’s estate, leaving D liable for any other liabilities

Issue – under FRCP 19(a), should D have been joined as “indispensable party”? D should have been joined as indispensable party b/c he would have been potentially prejudiced

by a judgment against C’s estate that would be paid out of his ins. policy. Under FRCP 19(b), ok to go forward w/o D b/c although he has been identified as person feasibly joined,

result that would be substantially prejudicial unlikely (not likely that judgment against C’s estate that would be paid out of D’s ins. policy would deplete ins. policy entirely)

F. Intervention and the Real-Party-in-Interest RequirementFRCP 24 - Intervention

o (a) Intervention “of right” -- Upon timely application, one may intervene (1) by statute w/ unconditional right, (2) when applicant claims interest relating to property or transaction which is s-m and applicant is situated

so that disposition may impair/impede his ability to protect that interest, unless it’s otherwise represented adequately (Exactly the same thing under 19(a)(1)(b)(1).

o (b) Permissive Intervention – Upon application, one may intervene Courts discretion (1) by statute w/ conditional right, or (2) when applicant’s claim or defense and main action share common question of law or fact. Ct. will

consider if intervention will result in unduly delay or prejudice adjudication of rights of original parties – Addl. factors considered – (1) whether the intervention will prejudice existing parties w/ unduly delay or complicating the action; (2) whether intervenor will benefit from intervention; (3) nature and extent of intervenor’s interests in s-m; (4) whether intervenor’s interests are adequately represented by existing parties; (5) whether intervenor will contribute to development of the issues

o (c) Procedure – motion to intervene made under FRCP 5NOPSI v. United Gas Pipe Line Co.

To intervene as of right, there are 4 req.: (1) the application for intervention must be timely (2) the applicant must have an interest relating to the property or transaction which is the subject of

the action (3) the applicant must be so situated that the disposition of the action may, as a practical matter,

impair or impede his ability to protect that interest (4) the applicant’s interest must be inadequately represented by the existing parties to the suit

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What kind of interest is req. under 2nd req.? Applicant’s interest must be not only “direct” and “substantial,” but also “legally protectable.” More than an economic interest is necessary.

The “real party in interest” is the party who, by substantive law, possesses the right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery.

Permissive intervention “is wholly discretionary with the court…even though there is a common question of law or fact, or the req. of R24(b) are otherwise satisfied.” Consider whether the intervenors’ interests are adequately represented by other parties and whether they will signficantly contribute to full development of the underlying factual issues in the suit.

G. Interpleader2 Kinds of Interpleader

(1) Statutory under 28 USC § 1335 – easier to gain interpleader b/c of smaller amt. of $500. in controversy and req. only minimal diversity; claims do not have to have common origin, so they can be conflicting; allows for nationwide service of process(2) Rule under FRCP 22 – does not req. common origin or identical claims, allowing conflicting claims; must satisfy rules for diversity jurisdiction b/w stakeholder and all adverse claimants in excess of $75k

FRCP 22 – Interpleadero (a) Persons having claims against Pl. may be joined as ∆ and be req. to interplead when their claims are such that

Pl. is or may be exposed to double or multiple liability. Not grounds for objection that joinder does not have common origin or are not identical but are adverse to and independent of one another.

o (b) The remedy provided herein is in addition to and in no way supersedes or limits the remedy provided by Title 28, U.S.C. §§ 1335, 1397, and 2361.

28 U.S.C. § 1335 - Interpleadero (a) D.Cts. have original jurisdiction of any civil action of interpleader of $500+ if (1) 2 or more adverse claimants of

diverse citizenship are claiming or may claim to be entitled to such $ or property or to any benefits arising…and if (2) Pl. has deposited such $ or property or has paid amt. of loan due under such obligation into registry of ct.

o (b) Such action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to an independent of one another.

Form 18 - Complaint for Interpleader and Declaratory ReliefFed. cts. have interpleader jurisdiction on “minimal” diversity (if any one claimant is diverse from any other). Interpleader is available even if claims are merely potential and not yet matured, b/c the statute covers persons who “may” claim.

State Farm Fire & Casualty Co. v. Tashire The mere existence of an insurance fund cannot, by use of interpleader, be employed to accomplish

purposes that exceed the needs of orderly contest with respect to the fund. The circumstance that one of the prospective defendants happens to have an insurance policy is a

fortuitous event which should not of itself shape the nature of the ensuing litigation. Interpleader was never intended to be an all-purpose “bill of peace.” A potential debtor cannot interplead

claimants if they all have rights to recovery that are not inconsistent.

H. Class Actions The representative sues on behalf of a class, group. The pre-requisites:

Numerosity – there are so many people, it would not make sense to have them individually joined. There is no magic number.

Commonality – something in common among all those people Typicality – Rep’s claim is typical of all the class members Adequate Representation – Rep must adequately represent the class

Types of Class: B1 – very specialized B2 – very specialized B3 – Most common. Requires:

o You must show that common questions predominate over individual questionso The class is the superior method for resolving the dispute. (Ex. Mass tort)

Court is not a class action until the court certifies it. It court certifies, the court must assert class council. Ensure the class has a good lawyer.

Notice of pendency: If you are class member, you don’t know anything unless you are told. In the B3 class, the court must give individual notice to ALL members reasonably

identifiable. Rule 23(c)(2)(b). This notice tells them that members have a right to opt out.

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This notice is only required in a B3 Who is bound by the judgment?

All members of the class except all of those who opted out of the B3 class. Settlement of dismissal of a certified class must be approved by the court. Once class is certified, we

cannot discuss it, we can’t even settle it. We have to have court permission. Subject Matter Jurisdiction

It could be a federal question and then citizenship and amount don’t matter. If class action invokes diversity, we:

o For citizenship, you look only at the Representative. The other class members are irrelevant. Only need that the Rep. is diverse from every defendant.

o Amount in controversy: you look only at the Rep. As long as the rep’s claim exceeds 75K, we are OK.

Class Action fairness Act. (CAFA) Tougher on plaintiffs in federal court than in state courts

Hansberry v. Lee One is not bound by a judgment in personam in a litigation in which he has not been made a party. In such cases where the interests of those not joined are of the same class as the interests of those who

are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will proceed to a decree.

There has been a failure of due process only in those cases where it cannot be said that the procedure adopted fairly insures the protection of the interest of absent parties who are to be bound by it.

VI. Discovery and DisclosureA. Scope of Discovery

FRCP 26(b) – General Provisions Governing Discoveryo (1) Discovery ok regarding any matter, not privileged, that is relevant to claim or defense of any party. For

good cause, ct. may order discovery of any matter relevant to s-m involved in action. Relevant info. need not be admissible at trial if the discovery appears reasonably calculated to lead to discovery of admissible evidence. – Broad std. of “any tendency to make it more or less probable”; Balancing test employed – more important, more expense allowed

o (2) Limitations - # of depositions and interrogatories, or length under FRCP 30. By order or local rule, ct. may also limit # of requests under FRCP 36. Limited if ct. determines that

(i) discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive,

(ii) party seeking discovery has had ample opportunity by discovery to obtain info. sought, or (iii) burden or expense of proposed discovery outweighs likely benefit – Breadth and Depth considerations

While the presumptive reach of discovery is broad under Rule 26(b)(1), information is not automatically subject to production if it meets the broad relevance standard. Rule 26 provides that relevant information is discoverable unless “otherwise limited by the court.”

o A party may seek a “protective order” from the court, under Rule 26(c), limiting discovery – even of information clearly within the relevance standard in Rule 26(b)(1) – “to protect a party or person from annoyance, embarrassment, oppression, or under burden or expense.”Kerr v. District Court

CA inmates sought extensive personnel files and internal memos from parole authority ∆ claim info. was not relevant, privileged, and should be subject to protective order Materials ruled relevant and thus discoverable for purpose of inquiry into qualifications of parole personnel

Bank of the Orient v. Superior Court Reports were discoverable even though they were not admissible as evidence b/c they were reasonably

calculated to lead to admissible evidence, even if not admissible themselves. The documents were not work product because they were not commissioned by an attorney with an

eye toward litigation. “A report which is not the product of the attorney or his agents or employees is not work product, and an attorney cannot, by retroactive adoption, convert the independent work of another, already performed, into his own.”

Relevance Standard for Self-Initiated DisclosuresFRCP 26(a)(1) – “a party must, w/o awaiting a discovery request,” disclose persons or documents likely to have information “that the disclosing party may use to support its claims or defenses, unless solely for impeachment.” No request is necessary. The disclosing

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party must self-initiate. Must ID people with discoverable information that you might use at trial. You must also give a description or a copy of documents and ESI (Electrically stored information) and tangible things you expect to use at trial.

B. Exceptions to the Scope of Discovery1. Privileges

Privileges to discoveryo FRCP 26(b)(5) requires a party claiming a privilege to “describe the nature of the documents, communications or

things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”

o If the counsel still wants to compel an answer, they must file a motion under FRCP 37(a)(2) and let the court decide whether the privilege applies and, if it does not, order the person to respond.

o Types of privileges : Attorney-client

Only protects the communications between lawyer and client themselves from discovery. The privilege does not protect a party from responding to discovery of facts about the case just because those facts have been told to an attorney.

In many cases, communications from employees to corporate counsel will be protected. It is also generally recognized that the attorney-client privilege extends to representatives of

both the client and the attorney. Rationale: effective representation requires full and frank communication between lawyer and

client. (Upjohn)o It does not have to be generated by a lawyer. It can be generated by a party or any

rep of a party. Doctor-patient Psychotherapist-patient Husband-wife

o Absent some constitutional issue, a claim of privilege will usually prevail even if the information withheld is crucial.Upjohn Co. v. United States

The attorney-client privilege still applies when the client is a corporation. “Control group test” – Is it the corporation which is seeking the lawyer’s advice when the asserted privileged

communication is made? If the employee making the communication is in a position to control or even to take a substantial

part in a decision about any action which the corporation may take upon the advice of the attorney, then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply.

While it would probably be more convenient for the govt to secure the results of petitioner’s internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner’s attorneys, such considerations of convenience do not overcome the policies served by the attorney-client privilege.

WaiverThe protections afforded by a privilege can be waived by a client in appropriate circumstances. As a general rule, the law will imply a waiver whenever the holder of the privilege voluntarily discloses or allows to be disclosed any significant part of the privileged matter.

2. Work ProductFRCP 26(b)(3) - Trial preparation – materials – party may obtain discovery of documents and tangible things otherwise discoverable under (b)(1) and prepared in anticipation of litigation only upon a showing that the party seeking discovery has substantial of the materials in the preparation of the party’s case and that the party is unable w/o undue hardship to obtain the substantial equivalent of the materials by other means. – partial codification of Hickman

“Work Product” Objectionso The rule protects the privacy of preparatory materials prepared by attorneys or parties/agents.o Materials can be “prepared in anticipation of litigation” even if no suit has been filed if the materials are prepared

“because of the prospect of litigation” or “primarily or exclusively to assist in litigation” rather than in the regular course of business.

o The work product doctrine does not protect facts from being discovered, even if they are learned through trial preparation. Virtually all the facts are learned that way.Hickman v. Taylor

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P’s counsel in a wrongful death case sought discovery of D counsel’s notes of interviews with various witnesses to the tugboat sinking that caused the death and the substance of other interviews that D’s attorney had conducted but had not written down.

The Supreme Court objected because: (1) allowing such discovery would interfere with the confidentiality of trial preparation; lawyers

would be reluctant to keep written records (2) allowing discovery of trial preparation materials would allow lawyers to ride on their adversary’s

coattails in preparing for trial, by letting opposing counsel do all the work, and then obtaining the results through discovery.

(3) lawyers might end up as witnesses in their own cases if the statements they produced contradicted other testimony from the same witness.

The court held that written statements given by witnesses might be subject to discovery if the party seeking discovery made a sufficient showing of need for the material and inability to obtain it through other means.

o There are 2 categories of “work product” Ordinary work product

Documents prepared in anticipation of litigation that contains information that can reasonably be obtained through other means, discovery is barred.

If the requesting party demonstrates that she has a substantial need for materials developed in anticipation of litigation, and that similar information cannot be obtained through other means without substantial hardship, the court may order production of such materials.

Opinion work product opposing counsel’s thought process in preparing a case, such as legal theories or litigation strategy

cannot be discovered under the rule.Bank of the Orient v. Superior Court

A report which is not the product of the attorney or his agents or employees is not work product, and an attorney “cannot, by retroactive adoption, convert the independent work of another, already performed, into his own.”

The work was commission not by an attorney but by the board of directors, some 4 months prior to the time the complaint was filed.

3. Discovery of ExpertsExperts

o Testifying experts FRCP 26(a)(2) – Parties are required to disclose the names of their testifying experts at least 90 days

before trial, together with a report concerning their opinions and the bases of those opinions, their qualifications, compensation, and other information.

FRCP 26(b)(4)(A) – After disclosure, testifying experts may be deposed as well. Rationale: Experts cannot be effectively cross-examined at trial without the opportunity to conduct

discovery concerning their opinions and the bases for those opinion.o Non-testifying experts

FRCP 26(a) does not require disclosure of the identity or opinions of non-testifying experts. FRCP 26(b)(4)(B) – a party may only seek discovery concerning non-testifying experts upon a showing of

“exceptional circumstances.” A party may on a proper showing require the other party to name experts retained or specially consulted, but not those informally consulted.

Rationale: Allowing discovery would include disclosure of opponent’s trial strategy and would inhibit open communication between counsel and her own experts.

Analyzing strategyo (1) Is the information within the broad presumptive scope of discovery under 26(b)(1)?o (2) If so, does one of the exceptions to discovery of relevant information apply?

C. Protective Orders and Confidentiality AgreementsFRCP 26 – Discovery

o (c) Upon motion and w/ certification that movant has in good faith conferred or attempted to confer w/ other affected parties in an effort to resolve the dispute w/o ct. action, and for good cause shown, the ct. in which the action is pending or alternatively, on matters relating to a deposition, the ct. in the dist. where it is to be taken may make any order which justice req. to protect a party from annoyance, embarrassment, oppression, or undue burden or expense

(1) that disclosure/discovery not be had, (2) that it may only be had on specified terms and conditions, (3) that it be had only by method other than selected by party seeking discovery,

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(4) that certain matters not be inquired into, or that scope is limited, (5) that it be conducted w/ no one present except persons designated by ct., (6) that deposition, after sealing, be opened only by ct. order, (7) trade secret or confidential research not be revealed or if so only in a designated way, (8) that parties simultaneously file specified docs in sealed envelopes

o (d) Party may generally not seek discovery from any source before parties have conferred as req. by FRCP 26(f). Unless the ct. upon motion – for convenience and in the interests of justice – orders otherwise, methods of discovery may be used in any sequence.Centurion Industries, Inc. v. Warren Steurer and Associates

Trade secrets – To resist discovery under R26(c)(7), a person must 1st establish that the info sought is a trade secret and then demonstrate that its disclosure might be harmful. If these reqs. are met, the burden shifts to the party seeking discovery to establish that the disclosure of trade secrets is relevant and necessary to the action. The dist. ct. must balance the need for the trade secrets against the claim of injury resulting from disclosure.

D. Mechanics of Discovery1. Interrogatories – written questions answered in writing under oath.

Frequently best 1st line of discovery. Most efficient way to learn:o (1) who knows the facts supporting the claims or defenses,o (2) what documents exist pertaining to the claims or defenses,o (3) the when and whereas relevant to each claim or defense,o (4) the areas meriting deposition discovery ando (5) general background details.

FRCP 33 – Interrogatorieso (a) Any party may serve upon any other party written interrogatories, not exceeding 25 in number incl. all discrete

subparts, to be answered by the party served, or if party served is public or private corp. by an officer or agent who shall furnish such info. as is available to the party.

o (b) Answers and objections- (1) Each shall be answered separately and fully in writing under oath, unless objected to, in which event the

objecting party shall state reasons for objection and answer to extend interrogatory is not objectionable (2) Answers to be signed by person making them, and objections signed by atty. making them (3) Party upon whom interrogatories have been served shall serve answers and objections w/in 30 days

after service. (4) Grounds for objections shall be stated w/ specificity

o (c) Scope – interrogatories may relate to any matters which can be inquired into under 26(b)(1) o (d) Option to produce business records – sufficient answer to specify the records from which the answer may be

derived or ascertained and to afford party serving reasonable opportunity to examine or inspect such records

Questions propounded by one party to an opposing party, seeking information relevant to the issues in dispute.A party answering interrogatories has no duty to go out and conduct a detailed investigation of facts beyond her control in order to respond. It is sufficient to respond with information you know or that is within your control.

Burns v. Thiokol Chemical Corporation Under FRCP 26(c), the judge may use his discretion with protective orders as to time, place, and manner in

which the interrogatories will be answered. If the judge determines that this particular manner of disseminating the information is in fact unduly

burdensome, he may direct that alternative means by employed. You can’t just send someone to look at records without providing some guidance. The rule only provides for

them to look through the records themselves when the burden would be substantially the same for both parties. This is usually not the case, b/c the responding party will have at least some organization of their own records and are at least familiar with the information.

Contention InterrogatoriesStrictly factual – Was the light red or green when the defendant passed through the intersection?Combination of law and fact -- was an employee within the scope of employment at the time of the accident?

o This requires knowing what the scope of employment was and whether it extended to the conduct that resulted in the accident.

o Under modern rules, this is perfectly acceptable, but it may be too early in the litigation for the question to be acceptably answered.

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Contention interrogatories are particularly useful when a party uses broad form pleading principles validated by Rule 8 and the Federal Forms (Form 9).

o An interrogatory might say that you have alleged negligence in the operation of a motor vehicle…..in what respect do you contend that the defendant was negligent?

o Vehicles for disclosure of useful information – thought of as good things (Sargent). On the other hand, they are very burdensome and some other mechanism might be appropriate or the court might say that it isn’t relevant.

2. Requests for Production of DocumentsFRCP 34 – Production of Documents for Inspection

o (a) Scope – to inspect and copy, sample things in possession of party upon whom request is made and to permit entry upon designated land for inspection and measuring, testing, sampling, etc.

o (b) Procedure – set forth individual items w/ “reasonable particularity” and reasonable time, place, and manner for inspection. Party upon whom request is served shall respond w/in 30 days.

FRCP 34 authorizes a party to require an opponent to produce designated documents or things in its control for inspection and copying.

o The rule requires the opponent to open her files, or at least cull through them for documents relevant to the issues in suit, and produce them for the other side to review in preparing for trial.

o R34 is not limited to requests for documents. 34(a) also authorizes inspection of tangible things (car involved in accident), places (assembly line where accident took place), or counsel can conduct tests on relevant items of evidence.

Rule 34’s time frame governs the production of documents related to depositions.FRCP 45(d) – Subpoena (response)

o (1) Person responding to produce docs shall produce them as they are kept in the usual course of business or shall organize and label them to correspond w/ categories in demand

o (2) When info. subject to subpoena is withheld on claim of privilege or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by description of the nature of the docs, comms., or things not produced that is sufficient to enable the demanding party to contest the claim

Parties resist document requests by construing them narrowly and by liberally invoking the privileges and other objections. If such objections are asserted without a substantial basis, the responding party may be sanctioned under Rule 37.

3. Oral DepositionsFRCP 28 (a) – w/in U.S. depositions shall be taken before an officer authorized to administer oaths under U.S. law or of place where examination is held, or before person appt. by the ct. in which action is pending.FRCP 29 – Parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions and (2) modify other procedures governing or limitations placed upon discovery…FRCP 30 – Depositions upon oral examinationFRCP 31 – Depositions upon written questionsFRCP 32 – Use of depositions in court proceedingsFRCP 30 allows counsel to take the deposition of “any person, including a party.” A deposition is the taking of testimony from a witness under oath.

o If the deponent is a party, counsel initiates the deposition by sending a notice of deposition to all parties in the action, stating the time and place of the deposition. FRCP 30(b)

o If the deponent is not a party, she must also be “subpoenaed” for the deposition under FRCP 45. If deposing counsel wishes a non-party deponent to produce records or other tangible evidence for the deposition, she must serve a “subpoena duces tecum” to command the production of the requested items with the notice of deposition specifying the documents or things to be brought to the deposition.

o Most effective means of obtaining detailed information from witnesses before trial.o Major drawback is the time and expense of conducting it.

FRCP 30(c) – when objection is made, it shall be noted on the record but “the examination shall proceed, with the testimony taken subject to objections.”

o 30(d)(1) However, when an objection is based on a privilege, counsel may instruct not to answer the question.o 30(d)(4) – authorizes a party to move to suspend or limit the scope of the deposition where the examination is being

conducted in bad faith, or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or partyCounsel for the deponent has the right to cross-examine to clarify statements made or if the deposition is to be used at trial in place of the witness’s live testimony.

Salter v. Upjohn Co. Pl. sought multiple depositions of ∆ dr. Deposition of a corp. by its agents and officers should ordinarily be taken at its principal place of business

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Generally, deposition notice is req., but it does not mean that his deposition may be taken, especially as an unwilling ∆ and in a distant forum

4. Physical or Mental ExaminationEven a claim by a plaintiff that they have suffered a physical injury does not mean that it will be appropriate to order the examination if a less intrusive way of finding out the information is available. (contrary to what Schlagenhauf suggests.)FRCP 35 – Physical and Mental Examinations of Persons

o (a) Order made upon motion but only in good cause shown and upon notice to person to be examined and to all parties time, place, and manner of examination and persons by whom it is to be made

o (b) Report of Examiner (1) If requested by party against whom order is made, the party causing the exam to be made shall deliver

to the requesting party a copy of the written report setting out the findings, incl. results of all tests, diagnoses, and conclusions w/ like reports of all earlier exams. After delivery, party causing exam shall be entitled upon request to receive from the party against shom order is made a like report of any exam on same conditions unless the party shows that it is unable to obtain it.

(2) By requesting and obtaining a report so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy

(3) Applies to exams made by agr. of parties, unless agr. expressly provides otherwise This discovery device exists, but it is not as often used as you might expect. It can only be used against a party. Courts are reluctant to order examinations.

5. Request for AdmissionsFRCP 36 – Requests for Admission

o (a) Party may serve a written request for admission of the truth of any matters w/in scope of FRCP 26(b)(1) set forth in the request that relate to any stmts. or opinions of fact or of the appl. of law to fact. Copies of docs shall be served w/ request unless they have been or are otherwise furnished. Each matter of which an admission is req. shall be separately set forth. Matter admitted unless a written answer or objection – w/ specificity – is served w/in 30 days or other time set forth by ct. Lack of info. is not reason to not respond unless party states that it has made reasonable inquiry and that info. known is insufficient to enable the party to admit or deny. Ct. may order that answer which does not meet reqs. shall be admitted or amd.

o (b) Any matter admitted is conclusively est. unless ct. on motion permits withdrawal or amd. (allowed when presentation of merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the ct. that w/d or adm. will prejudice that party in maintaining the action or defense on the merits

Form 25 – Request for Admission Under Rule 36

Authorizes a party seeking admission of certain facts to send a request to an opponent to admit those facts, including the genuineness of any documents described in the request.

o The receiving party is required to admit or deny the truth of the statements, or raise an objection to the request.o An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the

party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

o Usually comes late in the discovery process. Under R 36, when answers are not made, the req. are deemed admitted merely by the operation of the rule. Courts have broad discretion to allow late responses, but they may also routinely deny such motions. Judges may grant a motion to withdraw admissions if the admitting party has good ground to contest the facts.Requests req. the application of law to fact, or requiring opinions or conclusions, are not objectionable.

6. Automatic DisclosureFRCP 26(a)(1) – parties are required, at the outset of the case and without a request from any other party, to disclose to other parties:

o the names and addresses of persons with relevant information, o copies or descriptions of relevant documents and tangible evidence, o computations of damages with supporting documentation, and o copies of insurance contracts covering the claims in suit.

The Rule also allows parties to agree to forgo automatic disclosure.

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E. Duty to Supplement ResponsesFRCP 26(e) – Party who has made disclosure under sub(a) or responded to request w/ disclosure or response is under a duty to supplement or correct it to incl. info. thereafter acquired if ordered by the ct. or in cases of…

o (1) Party is under duty to supplement at appr. intervals its disclosures under (a) if the party learns that in some material respect the info. disclosed is incomplete or incorrect and if the addl. or corrective info. has not otherwise been made known to the other parties during the discovery process or in writing. Duty extends to info. contained in report and info. from deposition.

o (2) Party is under duty to seasonably amend a prior response to any interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the addl. or corrective info. has not otherwise been made known during the discovery process.Voegeli v. Lewis

The court held that R26(e) contained a duty to supplement responses with respect to expert witnesses. Court quoted the req. that a party seasonably amend a response if the party learns that the response was “incorrect.”

F. Use of Discovery in Hearings or TrialsFRCP 32(a) Use of depositions – for contradicting or impeaching testimony of deponent as a witness; member/agent of corp. stmt. may be used by an adverse party for any purpose; if witness is dead, 100+ mi. from trial or out of country, unable to attend b/c of age, illness, or imprisonment; that party offering depositions has been unable to procure the attendance of witness by subpoena; upon appl. and notice that such exceptional circumstance exists as to make it desirable, in the interest of justice and w/ due regard to the importance of presenting the testimony of witnesses orally in open ct., to allow the deposition to be used…

Frechette v. Welch The deposition of any witness in a civil cause may be taken and used at the trial, unless the adverse party

procures him to attend so that he may be called to testify when the deposition is offered. When a situation is covered by one of the Fed. Rules, the question facing the court is a far cry from the

typical, relatively unguided Erie choice: the court can refuse to apply the fed. rule only if the Rule in question transgresses the terms of the Enabling Act or constitutional restrictions.

G. Self-Initiated DisclosuresFRCP 26(a)

o (1) Initial disclosures – (A) name, address, phone # of each individual likely to have discoverable info.; (B) copy of or description of all docs, data, tangible things in possession, custody, or control of party and

that disclosing party may use to support its claims or defenses (C) computation of any category of damages claimed by disclosing party and evidence (D) any ins. agr. under which any person carrying on business may be liable to satisfy all or part of a

judgment which may be entered (E) Exemptions

o (2) Disclosure of Expert testimony – (A) Party shall disclose identity of person who may be used to present evidence at trial (B) Disclosure shall – w/ respect to witness retained or specially employed to provide expert testimony in the

case – be accompanied by written report prepared and signed by witness, incl. complete stmt. of all opinions to be expressed and bases for those opinions, qualifications, compensation to be paid, and listing of other cases in which witness has testified

o (3) Pre-trial Disclosures – (A) Name and info. of each separately identified party whom party expects or may need to call (B) Designation of those witnesses whose testimony is expected to be presented by deposition (C) Appropriate identification of each doc or other exhibit…All to be made at least 30 days before trial

o (4) Form of disclosures – written, signed, and servedo (5) Methods to discover addl. matter – depositions upon oral exam or written ?; written interrogatories; production of

docs or things or permission to enter land for inspection; physical and mental exams; requests for admissionsFRCP 30(a)(2) – party must obtain leave of ct. if the person to be examined is confined in prison or, if w/o written stipulation of the parties,

o (A) A proposed deposition would result in more than 10 depositions being taken o (B) person to be examined has already been deposed in this caseo (C) party seeks to take deposition before time specified in FRCP 26(d) unless the notice contains a certification, w/

supporting facts, that the person to be examined is expected to leave the U.S.

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FRCP 30(d)(2) – Unless otherwise authorized by ct. or stipulated by parties, deposition is limited to 1 day of 7 hrs. Ct. must allow addl. time under FRCP 26(b)(2) if needed for fair exam of deponent or if deponent or another or circumstance impedes or delays the exam.FRCP 33(a) – w/o leave of ct. or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 25 incl. all discrete subparts, to be answered by the party served, or if a corp., by any officer or agent

H. Discovery Certifications; ConferencesFRCP 26(f) -- The parties must as soon as practicable and in any event at least 21 days before a scheduling conference is held (or scheduling order under Rule 16(b)), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosure required by Rule 26(a)(1), and to develop a proposed discovery plan that indicates the parties view and proposals concerning:

o (1) what changes should be made in the timing, form or requirement for disclosures under Rule 26(a)(1)(required disclosures), including a statement as to when such disclosures were made or will be made;

o (2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;

o (3) what changes should be made in the limitations of discovery imposed under these rules or by local rule, and what other limitations should be imposed.

o The attorneys of record an all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan.

Form 35: Report of Parties’ Planning meetingFRCP 26(g) – Every required disclosure and pretrial disclosure shall be signed by at least one attorney of record in the individual’s name. An unrepresented party shall sign the disclosure and state the party’s address. The signature constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.

I. SanctionsFRCP 37(a)(2) – Motion

o (A) If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. The motion must include a certification that the movant has in good faith conferred (or attempted to) with the party to secure disclosure without court action.

o (B) If a deponent fails to answer a question under Rules 30 or 31, a corporation fails to make a designation under Rules 30(b)(6) or 31(a) or a party fails to answer an interrogatory under Rule 33, or if a party in a response to a request for inspection, fails to respond, the discovering party may move for an order to compel an answer (or other appropriate response).

FRCP 37(a)(3) - An evasive or incomplete disclosure, answer, etc. is treated as a failure to respond.FRCP 37(a)(4) – Expenses and Sanctions

o (A) If the motion is granted or if the disclosure is provided after the motion was filed, the court shall, after affording the party an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds the motion was filed without the movant’s first making a good faith effort to obtain the discovery without court action, or that the opposing party’s nondisclosure, response, etc. was substantially justified.

o (B) If the motion was denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording the party an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent opposing the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the party making the motion was substantially justified or that other circumstances make an award of expenses unjust.

o (C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may apportion the reasonable expenses incurred.

FRCP 37(b) – Failure to Comply with Ordero (1) If a deponent fails to be sworn or to answer a question after being directed to do so, the failure may be

considered a contempt of court.o (2) If a party fails to obey an order to provide or permit discovery, the court may make such orders as are just and

among others the following: (A) an order that matters shall be taken to be established in accordance with the claim of the party obtaining

the order; (B) an order refusing to allow the disobedient party to support or oppose the designated claims or defenses

or introducing designated matters into evidence;

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(C) an order striking pleadings or parts thereof, or staying further action until the order is obeyed or dismissing the action or rendering a default judgment against the disobedient party; an order treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental exam.

(D) In lieu of or in addition to any of the foregoing orders, the court shall require the party failing to obey the order or the attorney advising that party or both to pay reasonable expenses, including attorney’s fees caused by the failure, unless the court finds the failure was substantially justified.

FRCP 37(c) – Failure to Disclose; False or Misleading Disclosure; Refusal to Admito (1) A party that without justification fails to disclose information required by Rule 26(a) or 26(e)(1) or amend a prior

response as required by Rule 26(e)(2) is not, unless such failure is harmless, allowed to use as evidence any witness or information not so disclosed. In addition to or in lieu of tis sanction, the court, on motion, and after affording the party an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees, caused by the failure, these sanctions ma include any of the actions authorized under Rule 37(b)(2)(A),(B), and (C) (above) and may include informing the jury of the failure to make disclosure.

o (2) If a party fails to admit the genuineness of any document or the truth of any matter requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds the request was held objectionable, the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe the party might prevail on the matter, or there was other good reason for the failure to admit.

FRCP 37(d) - If a party fails to appear at the deposition after receiving proper notice or fails to serve answers or objections or a written response to a request for inspections, the court may make such orders in regard to the failure as are just, and among others it may take any action authorized under Rule 37(b)(2)(A),(B), and (C) (above). In lieu of any order or in addition thereto, the court shall require the party or the attorney or both to pay the reasonable expenses, including attorney’s fees unless the court finds such failure to be substantially justified.

o Failure to act may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided in Rule 26(c).

FRCP 37(g) - If a party or a party’s attorney fails to participate in good faith in the development and submission of a discovery plan, the court may require the party or the attorney or both to pay the reasonable expenses, including attorney’s fees, caused by the failure.

“Pushing” – The use of unreasonable discovery requests (single question might take a week to answer)“Tripping” – hindering unnecessarily the discovery of relevant non-privileged information by any one of a variety of means ranging from delay to concealment to destruction of evidence.

Lew v. Kona Hospital The dist. ct. has great latitude in imposing sanctions under FRCP 37. R37(d) allows the dist. ct. to impose sanctions, including payment of expenses, on a party who fails to

appear for his own deposition after receiving proper notice. Dr. Lew’s failure to attend his deposition could be characterized as “willful.” In light of this “willful failure,” the

sanction the dist. ct. imposed was a light one. Even if Dr. Lew’s failure to attend was not willful, however, the sanctions the dist. ct. imposed were within the permissible range. Even a negligent failure to allow reasonable discovery may be punished.

Sanctions serve a threefold purpose:o (1) Adjusting the rights of the parties so that the disobedience does not create an advantage;o (2) specific deterrence of future violations by other parties; ando (3) general deterrence (deterrence of violations by other parties in other, unrelated cases)

The courts have continued to struggle with the precise level of “fault” that should be required to justify severe sanctions.

SUMMARY JUDGMEMT Rule 12(c) – Motion for judgment on the pleadings. (Austad v. United States) Rule 56 – summary judgment materials must show that there is no genuine dispute as to any material fact and that the

moving party is entitled to prevail “as a matter of law”

Adickes v. S.H. Kress & Co. Under a 1983 claim, P must prove 2 elements:

o P must allege that someone has deprived him of a federal righto P must allege that the person who has deprived him of that right acted under the color of state or

territorial law.

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o Kress should have established that there was a plausible basis for concluding that Kress was acting under an agreement with the police in depriving her of her civil rights.

o If the inference is reasonable, then we have evidence of conspiracy that would satisfy the second element under color of state law.

MOTION FOR SUMMARY JUDGMENT (MFSJ) Δ ‘s motion type one . Adickes negates element of P’s claim “as a matter of law”

o Celotex “points out” that P can’t prove an element of his claim “as a matter of law” Δ’s motion type two: Conclusively establishes all elements of an affirmative defense “as a matter of law” Plaintiff’s motion: conclusively establish all elements of plaintiff’s cause of action “as a matter of law.”

Adickeso D was to negate an element of the P’s case.o Affidavits are permissible in summary judgment. o What kind of evidence will you be relying upon to prove negligence?

Circumstantial Rule of Law: The party opposing the motion for summary judgment bears the burden of responding only after the moving party has met the burden of coming forward with proof of absence of any genuine issues of material fact.

Celotex Corp. v. Catrett o Type one asbestos case. o D moves for SJ; proper because P had failed to introduce evidence that exposure to D’s product was proximate cause of

injury.o Trial judge granted SJ, but that wouldn’t be right for the type one motion as interpreted in Adickes.o Court relied on rule and rationale in Adickes.o Three cases that decided with Celotex

Anderson v. Liberty Lobby - defamation case, what kind of evidence is necessary? Matchuiada Electric v. Zenith Radio – anti-trust case

“as a matter of law” = “under the law” & “under the conclusive evidence” “material fact” = what the substantive law says a material fact is. “genuine” = If a reasonable person could find or infer the answer to the issue from the totality of the admissible evidence in favor of

the moving party.

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