1.1 CivPro Outline LCCM1

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CIVIL PROCEDURE  PERSONAL JURISDICTION 

I. PERSONAL JURISDICTION- Territorial limits on judicial authority A.  Full Faith and Credit Clause - every state must enforce the judgments of other states a.  Exception- where the court that rendered the judgment lacked PJ over D B.  Two types of Personal Jurisdiction: a.   IN PERSONAM - jurisdiction against the person i.  General - suits in which the contacts are unrelated to the claim-contacts must be continuous and systematic. Connection w/ state must be consequence of  D’s own choice. 1.  Pure form- Massive Contacts. So much contact that there’s  jurisdiction for anything. (i.e. you live there) ii.  Specific- if the contacts are related to the claim-can be casual  and  and isolated   1.  Pure form- 1 on 1 arising out of relationship. (i.e. only contact w/  state is shooting a gun, the reason for the suit) iii.  Justifications for jurisdiction: 1.  Quid pro quo- this for that; the amount of benefit you receive from the state. You’ve received a benefit, and theref ore ore the state can take a burden from you (jurisdiction)  a.  More related to General Jurisdiction   2.  Regulatory Authority- The state is regulating things that the state has a legitimate concern over, and this creates jurisdiction   a.  Deals more w/ Specific Jurisdiction   3.  Convenience- If witnesses are there, case should be there.   a.  More related to General; not oft used to determine juris  b.   IN REM - jurisdiction against the property i.   In Rem- Suit over property where the object is the defendant, and we bind any person who has interest in that property ii.  Quasi In Rem I - Suit is a proceeding over the ownership of property. Only binds the named parties (similar to specific juris) iii.  Quasi In Rem II - law suit has nothing to do with the property, instead the presence of the property is simply the basis upon which the court relies to assert jurisdiction (similar to general juris) C.  Two Main Questions in Every Case a.  Has a state authorized jurisdiction in this case? (Statutory) i.  Long arm statutes- laws that give states authority to bring suits against people outside of its its borders. Some positive legal authorization is required to establish juris over out of state D b.  Does the Constitution permit the state to assert jurisdiction? (Constitutional Analysis) i.  Apply International Shoe Test - is exercise of jurisdiction constitutional under the Due Process Clause of the 14 th Amendment? (Minimum Contacts Test) II. CONSTITUTIONAL LIMITS ON PERSONAL JURISDICTION A. Traditional Bases of Jurisdiction: power, presence, domicile, consent 1. Power & Presence: Pennoyer v. Neff (1877) (a)  Personal service of process within the forum (presence) is necessary and sufficient to establish PJ.

 

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(b)  Field: You need either 1) consent or 2) power to assert PJ w/o offending DP. 2. Consent: court may determine the personal liability of D by b y his ―voluntary appearance.‖ Can be express or implied. (a)  Hess v. Palowski (1927)- EXPANSION! i.  Adds to Pennoyer; If you can’t get personal service, PJ can still be obtained through implied consent (Nonresident motorist statute- consents to the appointment of a state official as an agent ) 3. Domicile: the place where the person resides and intends to remain for the indefinite future. When you establish domicile, you establish a relationship relationship with the forum. Milliken v. Meyer (1940): Relationship to state is not dissolved by mere a.  absence from the state. B. EXPANSION of Personal Jurisdiction: Specific and General 1. Minimum Contacts Test: International Shoe Co. v. Washington (1945) (a)  To get PJ over non-resident D, D must have “such minimum contacts with the forum so that exercise of jurisdiction does do es not violate traditional notions of  th fair play and substantial justice” justice” (14 Amend) (2 parts: MC & fairness) (b)  Corporations have a ―presence‖ in state when in -state activities are continuous & systematic, but power is limited to cases arising out of those contacts. (c)  (c)  First time we see that a state can assert jurisdiction over something not physically present in the borders

 Jurisdiction- If contacts are unrelated to the claim, the contacts must be 2.  General  Jurisdiction continuous and systematic to have PJ. (a)  Can be sued in this forum on a claim that arose anywhere in the world.

toNacionales state must be of D’s own (1984) choice.  (b)  Connection Helicopteros deconsequence Colombia S.A. v. Hall i.  Rule- casual & isolated contacts are not enough to establish PJ, when cause of action did not arise out of those contacts. ii.  Case involving helicopter crash in Peru does not arise out of or relate to Texas but is very closely connected to Texas. iii.  For forum to exercise PJ, D must have minimum contacts that do not violate fair play. 3.  Specific Jurisdiction  Jurisdiction- If the contacts are related to the claim, you can get PJ even if  the contacts are casual & isolated. (D sued for a claim that arose in the forum.) (a)  McGee v. International Life Insurance Co . (1957) i.  Court: Sufficient for Due Process that suit was based on a contact that had a substantial connection to the state

ii.  Solicitation/Relatedness/State’s interests (Bar/Bri)  iii.   Ask: What has D done to subject himself to jurisdiction? (b)  Gray v. American Radiator & Standard Sanitary Corp. (1961) i.  Valve made by Titan in OH is sold to American in PA for placement in water heater, and then sold s old in IL, where it injured Gray ii.  AR has activity related to state but Titan does not iii.  Jurisdiction is justified also for Titan because D realized there could be a consequence in the state (indirect connection) iv.   Rule- Reasonable notice. D should be able to reasonably foresee  potential litigation as part of due process. C. LIMITS Imposed 1. Hanson v. Denkla (1958)  (a)  Rule- To be a contact under Shoe, must result from D’s purposeful availment; D must purposefully avail himself from the privilege of conducting activities

 

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with the forum state, thus invoking the benefits and protections of its law.   Unilateral activity does not satisfy MC. (b)  PA woman w/ trust fund in DE; moves to FL. After her death, is DE bank  subject to FL jurisdiction? Holding: NO. Bank did not avail itself to FL.   2. World Wide Volkswagen Corp. v. Woodson (1980) (a)  Did OK have jurisdiction over the regional distributor (only does business in NJ, CT, and NY), & over Seaway (only does business in NY)? Holding: NO. Rule 1- Purposeful Availment. D must reach out and avail themselves to the (b)  Rule forum. (Unilateral act by P is not purposeful availment. ) 2 Foreseeability Is it foreseeable that D will be sued in that forum? (c)  Rule (NOT -Is it foreseeable :that the product will get to that forum?)

(d)  Compare to Gray i.  Difference is Titan’s product was sold in IL.    j.  Titan was acting for benefit of Titan; Robinsons Robins ons were not. 3. Asahi Metal Indus. v. Superior Court of CA (1987) (SPLIT: no law produced!) (a)  Motorcycle accident in in CA. Sued Taiwan tube manufacturer, manufacturer, who sought indemnification from the manufacturer of tube’s valve (Asahi) (Asahi).. Asahi manufactures in Japan, sells assemblies many places including CA. Holding: CA cannot assert jurisdiction over Asahi (b)  Purposeful Availment  1.  O’Conner (Majority)- Awareness of the stream of commerce does not create minimum contacts; you also need actions purposefully directed (intent) to the particular state (ex- serving the market there, or advertising). ―substantial connection‖  2.  Brennan- It is a contact if I put the product into the stream of  commerce and I reasonably anticipate that th at it will get to that state. (Makes sense, bc I’m making money off that state whether I distribute there directly or indirectly) (c)  Reasonableness to see if there are minimum contacts 1.  Convenience: consider burden on D and interests of forum state. 4. Defamation/Targeted Wrongdoing- Calder v. Jones (1984) (a)  Shirley Jones files suit against the National Enquirer and Writer/Editor for a salacious article about her, published in places including CA, where she lives and center of her business. Holding: There is is specific PJ. (b)  PJ okay when the targeted harm is expressly aimed at the forum; knowing the victim would feel the effects in the forum; reasonably foresee that harm would be felt in that forum. (c)  (c)  An intentional connection gives the state a legitimate interest in asserting PJ; avoid it by not intentionally acting wrong.

5. Contract Disputes- Burger King v. Rudzewicz (1985) (a)  Rule: 2 parts to Shoe test: MC and fairness. You must have a relevant contact  before fairness is even considered. PJ is proper where there is a ―substantial connection‖ with that state.  (b)  Fairness: Little guy was not so ― gravely inconvenienced‖ to be at a ―severe disadvantage.” disadvantage .” (The relative wealth of the parties was irrelevant.) 6. Property Based JurisdictionHarris v. Balk (1905) (a)  Harris (NC) owed Balk (NC) $180. Balked owned Epstein (MD) $300. While Harris visiting MD, Epstein served him with a writ of attachment of the debt from Balk due Harris, thus acquiring quasi in rem jurisdiction over Balk. (b)  SC: ―the obligation of the debtor  to pay his debt clings to and accompanies him wherever he goes.‖ (QIR jurisdiction allowed Epstein to reach Balk in MD)  

 

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Shaffer v. Heitner (1977)

(c)  Heitner owned one share of Greyhound stock. Greyhound is a DE corp. w/ PPB in AZ. P sued in DE, although not a DE resident, resident, over transactions that occurred in Oregon. H: DE doesn’t have PJ over D (the statute was inconsistent with DP).  Rule: All assertions of state court jurisdiction, including in rem and quasi in rem (d)  Rule must be evaluated under MC Mere presence of property that is unrelated to the claim is not sufficient to assert in rem or quasi q uasi in rem jurisdiction. (e)  This decision assures that minimum contacts test is the new standard . Previous standard wasMC Pennoyer (presence person or property sufficient and necessary). With (before): presenceofnot necessary; Now:was presence of  property is not even sufficient!   7. Transient Service- Burnham v. Superior Court of California (1990) (a)  P brought suit for divorce divorce against her husband in CA state court. He was a NJ resident but was in CA for business and was served at P’s house while visiting his children. Rule: (transient service): presence of an individual in the forum state allowing (b)  Rule: for personal service is sufficient to establish PJ (if present, don’t need MC ). (c)  The court split 4-4 on this issue:: (1)  Scalia- Traditional (Pennoyer) is good! No need to look at MC! Jurisdiction is justified by power and tradition. Receiving a piece of paper in a state does not make a contact. (2)  Brennan- Traditional basis are are out the window. Every case must be assessed by Shoe, and presence itself is a minimum contact. D. CONSTITUTIONAL TEST OVERVIEW 1.  First ask, is there is a traditional basis (power, presence, consent, domicile) that applies? If yes, 4 justices say that’s good enough for PJ. 4 other justices say they need minimum contacts. 2.  Minimum Contacts (a)  Is there a relevant contact between D and forum? (b)  Is there purposeful availment? Does D reach out to the forum in some way? (c)  Foreseeability? Is it foreseeable that D could be sued in forum? 3.  Fairness (a)  Relatedness- does P’s claim arise from contact w/ the forum?  1.  If so, helps find juris (i.e., McGee: contact con tact upheld jurisdiction) 2.  If not, then Jurisdiction will only be okay oka y if we have general  jurisdiction, and that means we have to have continuous or systematic ties with the forum (b)  Inconvenience to the D 1.  Burden is on D to show that it’s so gravely inconvenient he is in a severe disadvantage (Burger King) (c)  State’s Interest in protecting/providing a forum for its citizens  (d)  Plaintiff’s Interest  (e)  Legal system’s interest in efficiency  (f)  Interstate Interest in Shared Substantive Policies E. Why Litigants Care About Forum Choice

1.  1. Convenience -  Suing at home, less burdensome, may be less expensive to sue where event happened 2.  2. Values and Bias -  Judges and juries have certain values and biases. Possibly hometown sympathy could favor plaintiff  3.  3. Procedural Advantages -  Preference in American courts rather than abroad b/c of procedures

 

5 4.  4. Choice of Law Forum applies ―conflict of laws‖ to determine what the applicable law should be   -  -  Conflicting doctrines impact forum choice because no longer is there a clear set of rules for everywhere

III.  STATUTORY LIMITS ON PERSONAL JURISDICTION J URISDICTION A.  PJ is only proper IF: 1.  The case falls within the terms of o f a state statute (Long Arm), and 2.  Jurisdiction is constitutional (use constitutional analysis above) B.  Long Arm Statutes 1.  Specify the scope of that state’s PJ authority  C.  Nationwide 1.  5th Jurisdiction Amendment constrains Fed Power; 14th constrains State Power. 2.  However, FRCP basically makes the 14 th amendment apply to federal courts, so that courts are by and large constrained by state borders 3.  Rule 4K- Territorial Limits of Effective Service     4K1- In General. Serving a summons or filing a waiver of service establishes PJ over a D:   4(k)(1)(a)- Who is subject to the jurisdiction of a court of general  jurisdiction in the state where the district court is located; th Amendment - fed courts o  Backdoor application of 14 can’t have jur isdiction isdiction over state borders. Fed courts are subject to all the limits of the state court (state long arm statute and DP) 



  4(k)(1)(b)- Who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or   4(k)(1)(c)- When authorized by a federal statute. o  EXCEPTION: a specific statute, made by congress, allows you to serve process anywhere in the USA, regardless of other parts of this rule   4K2- Federal Claim Outside State-Court Jurisdiction. Provides for nationwide jurisdiction when conditions are met:   Must be a federal cause of action.   ONLY if D is not subject to any state court’s cou rt’s general jurisdiction.    For a claim that arises under und er federal law, serving a summons or filing a 











waiver service establishes PJsubject over a D   of 4(K)(2)(a)the D is not to if: jurisdiction in any a ny state’s courts of general jurisdiction; and   4(k)(2)(b)- Exercising jurisdiction is consistent with the United States Constitution and laws. o  This is a Small number of cases: Use 4k2 when it’s a Federal Claim, with not enough contact w/ a particular (OR ANY) state to assert jurisdiction there, but enough en ough contact w/ the nation as a whole that it wouldn’t be a violation of 5th amendment. GMAC v. Raju (2003) a)  India citizen registered Internet domain names to sell GMAT test prep materials. Sued in VA, where GMAC is located. P could not sue in VA 



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because there was not enough contact with the state, but nationwide  jurisdiction was granted through 4(K)(2).

 

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b)  In determining SJ, courts must consider (1) purposeful availment, (2) activities directed at the state, and (3) if PJ would be constitutionally reasonable. (p. 173)

 

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NOTICE (from BAR/BRI): BAR/BRI): In addition to PJ, D must be given notice.  A.  A.  Service of Process a.  a.  FRCP 4. i. i.   Process consists of 1) the summons and 2) a copy of the complaint. 1. 1.   Summons shows power of the state ii.  ii.  Service can be made by any nonparty who is at least 18. iii.  iii.  How do we serve a human beings, 3 alternatives under 4(e)(2) 4(e)(2) 1. 1.   Personal service: walk up and hand it to you. 2. 2.   Substituted service a. a.   Must be at D’s usual abode  b. b.   Serve someone of suitable age and discretion who resides there 3. 3.   Serve D’s agent  4. 4.   Waiver of service under 4(d) a. a.   Allows waiver of service by mail. b. b.   Allows you to mail the process and a waiver form to D with a SASE. c. c.   If D does not return waiver form, P must serve with process. Only penalty to D: D may have to pay the cost co st of service. b. b.   Constitutional Test. Mullane v. Central Hanover Bank  c.  c.  Opportunity to be heard, factors court looks l ooks at: i. i.   P must give an affidavit (sworn statement as to why he’s entit entitled led to property back)   ii.  ii.  Affidavit must state specific facts iii.  iii.  Must get an order form a court. iv.  iv.  P might have to post a bond. v. v.   D should get a hearing at some point. PJ simply tells you that you can sue D in a particular state; says nothing about which court to go to once in that state. SMJ tells us which court to go to. SMJ is notSMJ: exercised parties, it isany exercised case. (federal courts cancases only hear certain kinds to of fed cases, have Two limited SMJ) State courts have general State over courts can hear kind ofover case.the (One exception: some FQ that are exclusive courts.) kinds of cases fed courts can here: diversity of citizenship, or federal question.

NOTICE 

I. Constitutional Requirement A.  Due Process a.  Due Process right: the opportunity to be heard and be informed of a lawsuit a.  Right to Participate- includes the right to present your side of the stor story. y. Based in adversarial truth because the arguments should enable the jury to pick the best side and also participation helps draw people into the legal system so they are more likely to respect an outcome 1.  Notice: crucial DP right: if you don’t know, you can’t participate  b.  Subjective Awareness- comes with a tradeoff of responsibility, some on listener to make himself aware and some on speaker to make info available 1.  Determining who has the bigger burden is highly contextual 2.  Ask, where’s the bang for the buck?   B.  Mullane v. Central Hanover Bank (1950)  a.  Tust fund gave notice in a newspaper to 113 beneficiaries; most didn’t see it. Court: this did not satisfy the notice requirement of 14th amendment b.   Rule: Notice must be reasonably calculated under the circumstances. c.  Mere publication was not enough. Under the circumstances, there was an easier way to serve D. II. Mechanics of Service of Process -  Service- delivery to the party -  Process- the thing being served, the summons itself  -  Complaint- more detailed information of the claims/parties. Complaint starts the lawsuit. Must be served with the summons!!

 

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-  If D does not respond to summons, a default judgment can be entered against him. Rule 4- Summons (a call to court) c ourt) -  4a: Contents of summons- names of court/parties, addresses of P’s attorney, time limits. Must be signed by clerk and sealed -  4b- Issuance: summons must be filed w/ court. Summons is drafted by P; signed by the clerk. Summons is a document of the court. Need a complaint to order a summons. -  4c- Service  o  4c1- Summons must be served with copy of the complaint

  4c2-3- anyone over 18 that is not party of the suit can serve (lawyer can serve). Sometimes done by US Marshal 4d- Waiving Service:**This is not service by mail. It allows waiver of service by mail, because mail itself w/o acknowledgment does not provide service of process. o  Requesting waiver- request to waive service of summons by written request to def  o  Failure to waive- if def doesn’t return waiver w/in time limits, then court can impose expenses needed to make service (D has a duty to avoid unnecessary expenses of service) o  Time to Answer- 60 days da ys to file answer after request for waiver sent (90 if out of  country) This is a longer time than if they were just served 4e- Serving an Individual w/in a Judicial District: follow state law in state where district court is located. Or, hand deliver, leave copy with someone at home, or deliver to an agent o  Delivering a copy to the individual o  Leave it at the house with with another person of ―suitable age‖ who lives there. So, if  you can’t deliver it personally, personally, you have to give it to ssomeone omeone else. You can’t just leave it there. o  Deliver a copy to someone appointed to receive process the he state. So if state law o  You still have the option of serving according to the law of t says you can just mail it, then you can 4f- Serving someone if foreign country: Use rules from Hague Convention/International agreements or, if not available, use country’s laws, hand h and deliver, or letter w/ receipt   4g- Serving Minors/Incompetents: follow state laws, laws, or if out of country use country’s laws 4h- Serving Corporations: follow state law or deliver summons to officer or agent, agent, and mail copy to all defendants OR if out of country, use international law or country laws o





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  4i- Serving deliver copy to district attorney (or assistant), or send copy to civil-process o  US- US/Agencies: clerk, to the US Attorney General, and to any agencies/officers involved o  Agency/Officer in Official capacity- serve US and also the Officer o  Officer Individually- serve US and officer o  Allow reasonable time -  4j- Serving foreign/state/local gov't: o  Foreign- use US Code o  State/Local- deliver copy to CEO or follow state laws for serving type of def  -  4k- Territorial Limits: Limits: summons gives jurisdiction if def is is subject to jurisdiction in that state, or authorized by fed statute. For outside state jurisdictionjurisdiction- def can’t be subject to any state jurisdiction and jurisdiction is consistent w/ Constitution Co nstitution (detailed above) -  4l- Proving Service- Server has to sign si gn an affidavit (sworn statement). Outside US US-- follow international agreements, or receipt. Single best collateral attack is one that says you never 

received service 

-  4m- Time limit: serve within 120 days after complaint is filed, unless good cause -  4n- Jurisdiction over Property/Assets:

 

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  Federal law- if authorized by fed statute. Notice must be given given o  State law- seize assets following state law. o

-  State service of process- usually similar to FRCP -  Immunity from service o  Many states allow people immunity from process when they enter the jurisdiction for reasons such as witness, party or attorneys who have entered to participate in unrelated judicial proceedings (to encourage people to attend the proceeding) Requirements for Service of Process (Fed Rules of Civil Procedure Rule 4) To bring a complaint against/sue someone: 1. 1.   2. 2.   3. 3.   4. 4.   5. 5.   6. 6.   7. 7.   8. 8.  

File a complaint with the court. You have 120 days to serve the defendant. Rule 4(m) The complaint must be accompanied by a summons. Rule 4(c)(1). Get the summons from the clerk. Rule 4(2)(b). Anyone at least 18 and not a party can serve the summons. Rule 4(c)(2). t he D’s home. Rule 4(c)(2)(a,b,c)   Leave the service with someone of  suitable age and discretion at the You can borrow state law for serving summons where district court is located or where service is made. P can request to waive service to avoid expense. If D does not agree to waive service, D must pay expenses to track himself down. 9. 9.   Serving corporations: To a managing or general agent or any agent authorized by appointment or law to receive service of process. Must also mail a copy to each D.

 

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VENUE: allocated judicial authority within jurisdiction; concerned with ―convenience of trial.‖ 

I.  The Local Action Rule a.  When title to land is involved, the only forum that can hear that case is where the land is located. b.  Livingston v. Jefferson i.  Court dismissed the suit because the action was ―local‖ ―lo cal‖ and could only be brought in Louisiana, where the land was located. II.  State and Federal Venue Statutes a.  Venue- determines where a P can bring bring a suit. It allocates judicial authority within a judicial judicial system. Focuses on convenience b.  State: intra-jurisdictional: where within a state the suit can be brought? c.  Federal: in which district can D be sued? 28 USC 1391  o  1391A- For DIVERSITY actions. P may lay venue:   District where all the D’s reside    District where a substantial part of the relevant events occurred or where a substantial part of the property that gave rise to the action is located, OR   If there’s no other district, then in a judicial district where any an y D is subject to PJ at the time of the filing o  1391B- For FEDERAL QUESTIONS, P may lay venue…     #1 and #2 are same as above, OR   If there’s no other district, then in a judicial district in which a single D may 









be found (this is narrower than in A)   Seems backward that the more broad option is in diversity, where we’re more concerned ab out forum forum shopping. No reason why congress did this o  1391C- CORPORATIONS   Corporations are deemed to reside in all districts where they have PJ, which is any state where it has minimum contacts d.  Other Notes: i.  1391 only applies if an action is FILED in fed court —   — no no application to cases removed from State court ii.  We do not use A3 or B3 very often… coming up with a hypo is challenging  iii.  Usually, venue will not make a difference because they’re in the same places as PJ. Key Exception is the Burnham case, where someone is served in a state where they don’t reside. They have PJ, but may not have venue  



III. Forum Non  Non Conveniens   a.  Allows courts the discretion to dismiss an action that would be more appropriately litigated in another forum even though the proper jurisdiction and venue requirements were met in the first forum b.  Effect: just as P looks for best laws, D can also to do the same thing: when the case is dismissed and re-filed, use the law of the new forum c.  Practical Effect- if the case is moved outside the US- it will probably neve neverr be refiled because it would be too difficult and expensive. d.  Piper Aircraft Co. v. Reyno (1981) i.  Plane rash in Scotland, manufactured in US. Litigation in US is dismissed b/c center of public gravity(nature is Scotland. ii.   Rule : weigh of the claim) and an d private interests (convenience, cost, witnesses) before deciding to dismiss the case.

 

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iii.  The possibility of an unfavorable change in law by granting a motion to dimiss under forum non conveniens should not by itself bar dismissal; There must also be a more appropriate forum. IV. Transfer a.  28 USC 1404  i.  Provides for transfer from one federal district court to another as an alternative to outright dismissal ii.  Can only transfer to a district dis trict where P could have o originally riginally filed suit (Different from FNC, where D can submit to PJ P J in the alternate forum) b.  Ferens et ux. V. John Deere Co. (1990) i.  Facts: P from PA lost hand on combine harvester. Files suit in MI because of longer statute of limitations. P transfers back to PA ii.   Rule: Laws of the transferor court should apply appl y regardless of who initiates the transfer. 1404 does not bring with it a change of law. iii.  If the court decided the other way, all it would do is keep P from transferring but they can still forum shop. c.  Key Factors: i.  Transfer- not dismissal. Case is just moved to a new location ii.  Law- Must apply Same Law that was used in the transferor court iii.  Low Burden- Low Deference to P’s choice. Easier to acquire transfer iv.  Moves to another court in the same system: Federal. Must move case from one federal court to another v.  Appellate Review- De Novo/Plenary Review- after the case they can review, and it if you are correct, they t hey will wipe out everything d.  28 USC 1406 i.  Applies when the venue/jurisdiction venue/jurisdiction are lacking in the original forum. Court can either dismiss the case or transfer it to the proper forum, but the they y will apply the law of the new forum  e.  28 USC 1407 i.  Actions pending in different districts can be transferred to a single district for coordinated/consolidated pretrial purposes  

 

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SUBJECT MATTER JURISDICTION

I. 

Introduction a.  State courts- courts of general/plenary SMJ: can hear cases on any type of claim b.  Federal courts- limited limited SMJ (and some exclusive jurisdiction- antitrust). antitrust). Has  jurisdiction only over categories in Art. 3 Section 2, given by Congress i.  Article 3 is Madisonian compromise — creates a Supreme Court, but allows Congress to create lower federal courts if it wants. ii.  Then, 1st congress creates lower federal courts. iii.  We have lower courts because there’s not enough ability for one supreme court to police all of the state courts c.  Courts can address issues of SMJ sua sponte- on its own motion d.  Standing to Sue- Standing rules require that a party asserting legal right be the appropriate person to enforce that right.

II. 

Diversity Jurisdiction a.  Rationale/Complete Diversity Requirement i.  Complete Diversity- Strawbridge v. Curtiss (1806) 1.   Rule- Where the interest is joint, there must mus t be complete diversity. 2.  28 USC 1332 (Diversity Statute) For Diversity Jurisdiction: a.  Parties Must Be Diverse b.  Amount in Question must be MORE than $75,000 3.  If there is at least 1 D from the same state as 1 P, then the nondiverse D protects the interests of all the D’ s. No need to move to federal court 4.  Exceptions to Diversity Jurisdiction a.  Domestic Relations – fed courts traditionally refused to hear cases dealing w/ domestic relations even if diversity and amount in controversy have been met b.  Probate – refuse to hear b.  Determining Citizenship/Joinder Issues i.  Time Frame- Citizenship is determined at the time the suit is filed ii.  Natural Citizens- Citizenship is their place of Domicile 1.  Where you live and play to stay indefinitely- where you will return 2.  Even if you live somewhere for an extended time but know you’ll leave, then it’s not your home  3.  Can only have 1 domicile. When you leave a place, your citizenship doesn’t change until you get a new domicile  iii.  Corporations- 28 USC 1332(c)(1)  1.  Citizen of 2: place incorporated & PPB (place decisions made) 2.  Keep in mind- citizenship and residency are different between diversity and venue iv.  Unincorporated Associations- based on citizenship of ALL members 1.  Limited Partnership- Carden v. Arkoma Associates (1990) a.  P is a limited partnership, 1 partner (LA). D was from LA. b.   Rule: citizenship of every partner in a limited partnership is considered when determining diversity. Congress has the option to change. 2.  Rose v. Giamatti (1989)  a.  Facts: Rose joined Reds and MLB as Ds. Giamatti filed for removal. Rose filed to remand to state courts. Court decides

 

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they’re not going to count the non-diverse defendant’s  because Rose doesn’t really have any grievance against them. Keeps diversity.  b.   Rule: Parties fraudulently joined should not be used in determining diversity. Fed court should disregard nominal or formal parties and determine jurisdiction only on citizenship of real parties to the controversy.  c.  The fraudulent joinder doctrine is a direct response to the frustration of the Involuntary Dismissal doctrine, which made

it irrelevant for states to dismiss non-diverse parties because a case that is not removable when filed can’t become removable through dismissal. Instead, the federal courts have to decide.   c.  Alienage Jurisdiction i.  28 USC 1332(a)- gives diversity jurisdiction over controversies between: 1.  Citizens of a state and citizens of a foreign state 2.  Citizens of different states, in which citizens of foreign state are additional parties 3.  A foreign state as plaintiff, and citizens of a state or different states ii.  Notes: 1.  Aliens that have a permanent US residence are treated as a citizen of  the US state that where they reside 2.  Americans living Abroad are precluded from suing in diversity 3.  Suits between 2 aliens- no jurisdiction 4.  Suit in which alien and citizen are on one side, and alien is on the other- no diversity 5.  Suit in which citizens of different states are on both sides along with aliens on each side- Yes jurisdiction iii.  Reasons 1.  1.  2.  2. 

To mitigate local bias against foreigners by allowing foreigners to remove to federal courts To compel aliens to litigate in state courts would be an affront to the sovereign nations from which they come.

d.  Amount in Controversy

i.  28 USC 1332- claims between citizens of different states must have an amount in controversy that exceeds $75,000   ii.  Legal certainty test- unless D can show that to a legal certainty that the claim could not exceed $75,000, then the amount in controversy must be taken at face value. iii.  Aggregation of Claims   1.  Single P asserts more than one claim against a single D add them up (claims do not need to be related)  2.  Claims of separate plaintiffs seeking similar relief against D- cannot add up  3.  Single claim against multiple D- cannot add up   4.  Separate P’s can unite when they have a common and undivided interest- add them up   e.  Diversity Jurisdiction and Complex i.  Multiparty, Multiforum Trial Jurisdiction Act 1.  Liability a.  Several- each D responsible for amount of damage they caused

 

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b.  Joint- everyone is responsible for harm, but burden is on P to bring all parties to the suit c.  Joint and Several- each D is responsible for full amount of  injury. Each bears complete responsibility to P 2.  Multiple Party suits- must be common and undivided. Both parties have to share the same injury (not just same type- ex. Joint homeowners both sue for full damage) ii.  Class Action Fairness Act 1.  Named representative brings suit on behalf b ehalf of himself and others in similar situation 2.  When brought in fed court on diversity- we look to the main P for diversity 3.  Each class member’s claim must be above $75,000  4.  Congress made changes in Class Actions b/c they were upset with how states were handling it III. 

Federal Question Jurisdiction a.  28 USC 1331: The general Federal Question statute. i.  No amount in controversy requirement. ii.  Federal law must be part of the claim, not a defense. iii.  Federal law must be sufficiently central to the claim asserted. b.  “Arising Under” Jurisdiction- Louisville & Nashville RR v. Mottley (1908) i.  Mottley received lifetime lifetime passes in settlement settlement with RR. Congress passes a law: RR’s cannot honor free passes, so RR stops honoring M’s passes. M’s sue. RR defense: this violates DP. Holding: No FQ jurisdiction. ii.   Rule: Need to look to the source of the suit to determine if it arises out of  federal law. Federal law must create the underlying cause of action; Not enough that fed law issues are simply present. iii.  Well-pleaded complaint Rule: A suit arises under a FQ only when P’s complaint (looking at the claim itself) is based on fed laws or Constitution. iv.  In this case, 5th amendment was an anticipated defense and not the source.  Even though the case turned on federal law, the underlying under lying cause of action being enforced was a creature of state law.   c.  Smith v. Kansas City Title & Trust Co. (1920)

i.  Shareholder Smith: the act of congress (Federal Farm Loan Act) allowing KCTT to invest in farm bonds is unconstitutional. H: Yes, FQ jurisdiction. ii.   Rule: Federal law must provide an essential element of   plaintiff’s plaintiff’s claim. iii.  This case fails the Mottley test because fiduciary duty is state law; federal law just authorizes the investment. The case comes out the other way bc the Constitution was not used as a defense. Compare the well-pleaded complaints: Mottley- we don’t need federal law to show that the P is being wronged; Fed law is dependent on D using it as a defense. Smith- the only way P can explain they were wronged is by talking about federal law; It’s an essential part of P’s claim. Basically, as long as it’s necessary that a Fed claim be brought up. In Mottley, it wasn’t necessary, so the P had to bring it.   iv.  Opposite: If federal cause of action turning on state law: not enough for FQ  jurisdiction. ALSO need a federal standard. v. Thompson (1986) d.  Merrell i.  PDow sues Pharmaceuticals for birth defects suffered as a result of meds moms took while preggo. P claims the meds didn ’t have warnings, violated an FDCA regulation.

 

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Holding: No FQ jurisdiction. ii.   Rule: The use of a federal standard in a state law issue does not arise under federal law. 1.  Congress did not want P to have remedy; Congress had a choice when passing the act, and said not enforceable by P in fed court by FDA. iii.  Under Mottley- No, fed law does not provide remedy. Not a fed c.o.a. iv.  Under Smith- Yes, fed law is essential to P’s relief   v.  (Merrell seems overrule Smith; but also ways to distinguish- Here, P has other ways of establishing deficient labeling than fed law. Not using fed law it is not fatal to the case: Not really essential, just enhances P’s case.)   e.  Grable & Sons Metal Products v. Darue (2005) i.  Facts: P didn’t pay taxes, and IRS grabbed his property and he defaulted in court. Then brings an action saying judgment is not valid because he was not served properly based on Federal regulations on service. Holding: Yes, FQ. ii.   Rule- (Revives Smith) It’s still possible to have FQ jurisdiction when the fed law is essential to a state cause of action   iii.  Grable Three-Prong Test: 1.  Is a federal issue central to the cause of action? 2.  Is it a substantial federal issue? (Is there strong fed interest?) 3.  Would this interrupt the division of labor? (Would it open the floodgates?) f.  Declaratory Judgments i.  A kind of injunctive relief; asking court to declare the rights of 2 p parties. arties. aka If someone who was set to be the D in a lawsuit is first to file for the Declaratory judgment, on paper they look like the P, however, the court will recognize this and still treat them as the D.  1.  You cannot get juris when D is claiming a federal defense. 2.  The Mottley rule (that the fed statute must be on the P side) does not apply to declaratory judgments. ii.  Allows someone file a lawsuit simply simpl y to get a declaration of rights and liability. If D sues first, then something that is federal that would be used as a defense, is now on the plaintiff’s plaintiff’s side. This is not good enough for FQIdentify what the underlying coercive claim would be and evaluate FQ on that.  IV. 

Supplemental Jurisdiction a.  USC 1367: Federal courts can hear claims that invoke FQ jurisdiction, including individual claims or issues that do not, so long as they are so closely related to the underlying dispute as to constitute a part of the same case or controversy (Pendent) i.  Ancillary: D can assert a state law counterclaim or 3rd party claim with no diversity of citizenship in Fed court as long as there is no independent basis for jurisdiction

JOINDER OF CLAIMS AND PARTIES UNDER THE FRCP –  Joining claims against one party     Rule 18  –  o  ―Kitchen sink rule‖ - P or D can assert as many claims as he has against the other party, they do not have to be related 

 



Rule 13  –  Counterclaimss and cross-claims –  Counterclaim o  Authorizes party to assert counterclaims against anyone who has asserted a claim against them  o  13A- Compulsory counterclaim- if the counterclaim is related to the claim against the party p arty (arises out of same t/o), it must be asserted or it is waived 

 

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  13B- Permissive Counterclaim- unrelated claims are permitted but not required     13G – Crossclaim-  allows parties to assert ―cross-claims‖ against non-adverse parties (such as co-defs), but only if those claims are related to the original action   –  Joinder of parties Rule 20  –  Parties may be joined as P or D if claims by or against the joined parties arise out of the same transaction o  or occurrence or are linked by common question of fact or law (just a loose common connection)   Rule 14 –  Impleader Allows any party defending a claim to ―implead‖ a 3 rd party def who may be liable for indemnity on that o  claim  –  Required Joinder of Parties Rule 19  –  o  Authorizes court to order the joinder of any party needed for just adjudication   o  19B- if the party can’t be joined, joi ned, court can stop the lawsuit     as a practical matter if you couldn’t bring a party into court it would subject the other party to substantial risk of obligation or impair or impede ability of that party to protect oneself.  –  Intervener Rule 24  –  Person interjects himself into the lawsuit w/out request by pl or def (crashing the party)   o  –  Class actions Rule 23  –  o  Asserting the claims of similarly situated parties  –  InterpleaderRule 22  –  o  the same property held by P. Allows D’s to battle it out for who gets what stake of the claim     must be able to join all parties under Rule 19 for it to be successful. o

o

 



 



 





 



 



 





b.  The Origins of Supplemental Jurisdiction: Pendent/Ancillary Claims  i.  United Mine Workers of America v. Gibbs (1966) 1.  Facts: P: UMW violated federal law. Not diverse, so Gibbs used FQ to get in fed court on the labor law claim. Court let his other state claim in as well. 2.   Rule: Pendent Jurisdiction allows court to assert jurisdiction over the whole case when part is state and part is fed court, as long as they share a common nucleus of operative facts . 3.  Article 3 gives court jurisdiction over cases, not just claims, and a case can arise under fed law even if it has state elements. 4.  Reasoning- (1) Protect the fed court mission of hearing fed claimscourts don’t want to discourage parties from adjudicating fed claims in fed court. (2) Efficiency- common nucleus, same facts and evidence ii.  Moore v. New York Cotton Exchange (1926) 1.  Facts: Odd Lot sues in an antitrust case, claiming NYCE has a monopoly (FQ). NYCE counterclaims that Odd Lot is stealing info (not FQ). 2.   Rule: Ancillary Jurisdiction allows federal court to assert jurisdiction over a non-federal claim when the 2 claims arise out of same transaction or occurrence. 3.  The theft and anti-trust cases did not have a common nucleus (no same witnesses, not easier) but they’re linked b/c there’s an expectation that the 2 parties can resolve their full dis dispute. pute. A ―case‖ isn’t just evidence, it’s idea of setting a common dispute  4.  Compulsory counterclaims, as this was with one federal and one state claim that are different, under (13A) should have supplemental  jurisdiction. The test is ―same transaction transaction or occurrence‖ aka logically related. c.  Additional Parties i.  Owen Equipment & Erection Co. v. Kroger (1978) 

 

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1.  Facts: Kroger (IA) walks near crane near power line and gets electrocuted. Wife sues Power Co. in diversity; Power Co. impleads Owen (crane owner) under Rule 14(a). Power Co. drops out of the suit; Kroger amends amends complaint to include Owen. Owen. After trial trial beings: Owen is actually from IA, and there is no diversity. H: Fed cannot hear. 2.   Rule: P cannot add non-diverse parties p arties to a diversity suit. If it was a federal question, they could have. But first case was based on diversity. it would have been different bc D’s can implead 3.  If Power Co. stayed, non-diverse 3rd parities and stay in Fed Court (becaus e D didn’t choose fed forum). Problem occurred when Kroger Kroger added Owen to to complaint: Court doesn’t want to allow P to add in a non-diverse party b/c then Ps can abuse the diversity rule. 4.  Not constitutional problem, not FRCP problem. Congress: must have complete diversity under 1332. ii.  Finley v. United States 1.  Facts: Airplane crash at San Diego airport. airport. Fed claim against FAAmust sue in fed court (by (by law). State claims against San Diego and Electric Co. Is there jurisdiction over state claims & parties in fed question case? 2.  Scalia: Can add pendant claims, CANNOT add pendant parties. a.  Even though P had no choice of forum. b.  If Congress wanted to, they would pass a statute. (They did.) d.  Congress Responds to Finley: Supplemental Jurisdiction-28 USC 1367  i.  Embraced Gibbs, overruled Finley, codifies Kroger. ii.  Default Rule: 1367A  1.  If the 2 claims are so related rela ted that they form the same case or controversy, they have supplemental jurisdiction over all claims and additional parties. (Does not distinguish between diversity and FQ  jurisdiction.) iii.  Carve Out Exceptions: 1367B (otherwise, go back to default) 1.  Only applies to diversity jurisdiction 2.  Covers claims by Ps against parties joined under R 14, 19, 20, 24, or 3.  Covers claims by persons proposed to be Plaintiffs under 19 or 24 iv.  When supp juris over such claims would be inconsistent w/ §1332 –  §1332 – trying trying to help P in Kroger if she hadn’t chosen the forum, forum, if she filed in state court e.  Exxon Mobil v. Allapattah Services  Rosario Ortega v. Star-Kist Foods (2005) i.  Facts: Exxon dealers file a class action suit against Exxon for a scheme

where they were overcharged for fuel. fuel. Suit was filed in fed court for diversity, but not all the class members met the minimum amount ii.   Rule: When other elements of jurisdiction are present and at least 1 P in the action satisfies the amount in controversy, 1367 authorizes supplemental  jurisdiction  jurisdicti on over the the claims of of the other other P’s in the same same case, case, even if  they don’t meet the minimum amount. amount. (The anchor claim met the minimum amount in controversy to get into federal court.) iii.  It wouldthat be inconsistent the notionhave of supplemental jurisdiction to require all claims in with the complaint to stand as indivisible actions

 

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V. 

iv. Post Allapatah, you cannot add additional plaintiffs under 1367 if doing so would destroy complete diversity. You can, however, however, add additional plaintiffs if the additional plaintiffs do not meet the amount in controversy.  Removal Jurisdiction- 28 USC 1441  a.  The Structure of Removal

i.  Almost any case that could have been brought in federal court can be removed to federal court.   ii.  D has to be the one o ne to remove. All D’s must agree to remove.  iii.  Diversity Cases- Limited- 1441B  1.  Only if none parties are home-state defendants. (if  there removable is a home state D, itofisthe NOT removable) 2.  Reason- If D has home field advantage, no need to sue in fed court. iv.  Federal Question- Guaranteed- 1441B 1.  Claim is always removable when it arises under federal law, as determined by P’s complaint even removed by D in home state. v.  28 USC 1441C  1.  Only in FQ cases: Removal of entire case if the removable federal claims are ―separate and independent‖ from any non-federal claims vi.  Glitch- 1441B says D has to be properly joined and served. 1.  D could try to remove before being served- some courts allow this, others do. b.  Procedure for Removal- 28 USC 1446 i.  Only D can remove; D cannot remove on grounds of Diversity jurisdiction if  D is sued in his own state court.  ii.  Removal is allowed only if P could have chosen to bring action in Fed Court initially but didn’t.   iii.  D can remove to federal court in a different state.   iv.  Unanimity rule: If more than one D, all D’s D ’s must agree to remove.   v.  D must file notice of removal in district court of the district and division where the action would be pending. vi.  The minute the notice is filed- it’s automatically removed  1.  If it shouldn’t have been removed, then P can remand under 1447  vii.  D has 30 days after service of a removable claim to remove the action. Must be within a year of the original filing (Fed Question has no time limit) viii.  Remand 28 USC 1447 1.  Motion to remand must be made within 30 days of notice of removal VI. Challenging Forum Selection a.  Subject Matter Jurisdiction i.  12H3- Lack of SMJ can be raised at any time ii.  It’s the judge’s responsibility to determine if it exists (even if no one raises the issue) iii.  Usually, SMJ is determined first iv.  Collateral Attacks are available (like PJ). v.  For SMJ- you can collaterally attack even if you contested the first judgment b.  Personal Jurisdiction i.  Special Appearance 1.  Make an appearance in the state for the sole purpose of arguing lack  of personal jurisdiction. ii.  Collateral Attack 

 

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1.  After a suit is completed, defendant can argue that the judgment is invalid because of no jurisdiction. If you you lose, you cannot argue argue the case on the merits. You’re putting all all eggs in one basket. c.  Motions to dismiss- Later in Outline

 

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THE LAW APPLIED IN FEDERAL COURT

I. 

Introduction a.  2 Legal Texts give Guidance i.  10th Amendment of Constitution 1.  Limits Federal Power: Powers not delegated should be reserved for states. The state is the default sovereign. When federal power isn’t isn’t explicit, use state law. ii.  §34 of Judiciary Act of 1789/ 28 USC 1652 (Rules of Decision Act)  1.  Creates the federal courts 2.  The laws of the several states, except where the constitution or treaties of the US or Act of Congress C ongress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of  the US, in cases where they apply a.  Basically, state law applies unless a statue says otherwise b.  State law is the default, unless controlled by Constitution/treaty/act of Congress

II.  The Origins of the Debate: Swift and Erie a.  Swift v. Tyson (1842) i.   Rule: In matters of common law, the federal court was not bound by the state court’s interpretation of the common law. ii.  Story: If legislature passes a statute, then that’s law, but the interpretation of  the courts of common law is not state law because it’s just the judge’s opinion and shouldn’t be binding on federal courts. Fed has to follow state over something things but they don’t have hav e to follow over general law . iii.  By 1938, vision of law changes 1.  Both statutory and judicial decisions constitute law 2.   No ―general‖ common law  b.  Erie R. Co. v. Tompkins (1938) i.  Facts: PA citizen was injured injured in PA by NY train. train. P sues RR in NY fed court for negligence. (PA state law makes P contributorily negligent.) ii.   Rule: Swift is overruled. The federal court should follow state judicial decisions. Common law is law.   iii.  Rationale- Equality. Diverse litigants should not have different different rights than non-diverse litigants. iv.  Creates Forum Shopping problem: 1.  Creates horizontal forum shopping (state to state): P can choose between state laws 2.  Ends vertical forum shopping (state to fed): No need for D to remove to federal court because the law applied will be the same. 3.  Gives more power to P. v.  SUBSTANTIVE v. PROCEDURAL law 1.  Required federal courts to apply state substantive law, but their own federal procedural law  a.  Substantive- rights and remedies (how you act in the world, and what you do to fix a wrong). Go with State law. i.  Erie is substantive- how did railroad have to behave toward Tompkins b.  Procedural- how a case will be brought in court/how it will be litigated. Go with federal law. (Why: Rules of Decision –  

 

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statute law of the several states and their unwritten or common law…shall be regarded as the rules of decision) III. Determining the Procedural Law Applicable in Federal Courts Co urts a.  Outcome Determination  i.  Guaranty Trust Co. of New York v. York (1945) 1.  Fiduciary duty suit. (Claims would be barred under state law by state StatuteOLimitations) P says SOL is procedural (federal SOL: laches: equity suits can never be untimely). Holding: State SOL. 2.   Rule (Frankfurter): Use OUTCOME DETERMINATION TEST  to find out if a law is substantive or procedural; the case should come out the same. Identify a substantive sub stantive rule by uniformity and forum shopping. 3.  If the differences affect the outcome of litigation: substantial, so go with state law. (The test leads to excess conformity.) b.  Analyzing State and Federal Interests i.  Byrd v. Blue Ridge Rural Electric Cooperative (1958) 1.  Facts: Federal Workman Comp Act. Byrd: not an employee, employee, no workman comp; Blue Blue Ridge: workman applies. In state court, judge would decide; fed court, the jury. H: the jury (so fed law). 2.  The outcome derivative test is unclear: judge and jury could theoretically rule the same. 3.   Rule (Brennan)- FEDERALISM- Balance regulatory interests of states with need for  judicial independenc independencee in fede federal ral courts. Balance state substantive rights (smaller pebble) with federal courts autonomy (bigger pebble). (If the fed court has to apply the state rule, is it going to impend on the way a fed court works?)  a.  Fed courts shouldn’t step on state toes, but sometimes federal courts should be able to do things their way. b.  Outcome uniformity and forum shopping are just factors 4.  Here, Strong state regulatory interest? NO, state wasn’t conferring a right. Strong federal interest? YES, the ability of a jury trial under 7th amendment. The Impact of the FRCP ii.  Rules Enabling Act of 1934 (REA)- 28 USC 2072 1.  Congress delegated power to Supreme Court to establish FRCP a.  2072A- SC shall have power to prescribe general rules of   practice and procedure and rules r ules of evidence for cases in US district courts and courts of appeals b.  2072B- Such rules shall not abridge, enlarge, or modify any  substantive right…(allowed if it modifies procedural right)

2.  Relationship between REA and RDA: No longer an absence of  federal rules. If federal statute, must follow follow it. (Statutory backing!) 3.  Today, rulemaking process is an ongoing evaluation: 28 USC 20712074  iii.  Hanna v. Plumer (1965) 1.  Issue of service of process. Does Rule 4 crowd out state law? (Is R4 unconstitutional?) Outcome determinative test is over-inclusive (because anything can determine the outcome).

 

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2.   Rule: creates GUIDED and UNGUIDED track. If there is a federal law (guided tract), apply it. View Outcome Determination Test through the twin aims of Erie. 3.  Unguided Track: If no Federal Rule, apply state law (usually). a.  If the difference would affect P’s choice of forum, apply state law. If not, can apply fed law. (This is the new Outcome Determination Test: dependant on ex-ante application of  twin evils of Erie.) b.  Next, apply Erie Duel Evils Test: Would failure to apply state rule create these evils? i.  1) Forum shopping: There should not be a substantial benefit in one court over another. ii.  2) Inequitable administration of law: federal and state outcomes should mirror each other. iii.  Question to ask: If the fed judge ignores this state law, will it cause litigants to flock to federal court?   A different outcome prediction should not lure people to one court. c.  Everything can be outcome determinative, so MODIFY: we want to know is if it is  originally outcome determinative, not after the fact. If P wouldn’t benefit originally in forum selection, okay to deviate from state law. If it would affect where P would bring suit, apply state law. d.   Here, service of process would not impact decision either  way originally.  4.  Guided Track: If a Federal Statute exists, apply fed law (usually). a.  If the FR is constitutional, apply it. End of story. b.  When you have a valid and pertinent federal law, apply it. i.  Must deal with practice and procedure of fed courts ii.  Cannot abridge, enlarge or modify any substantive right. c.  Validity i.  Constitutionality- does it have to do with courts? 1.  As long as you can characterize it as  procedural, it doesn’t matter if it’s also also substantive. 2.  Also, must ask if REA is authorized to make the rule. Is it constitutional? d.  Pertinence i.  Not enough that there is fed law; must be fed law that resolves the question before you ii.  Does it intend to replace state s tate practice or work  together with state law? c.  Determining the Existence of Pertinent Federal Law i.  Stewart Organization, Inc. v. Ricoh Corp. (1988) (extends Hanna to apply not just to rules (procedural issues), but to substantive law, too ) 1.  Clause in K: disputes must be resolved in in NY. P sues in AL for antitrust violations (must be federal). D tries to change venue under 1404 or dismiss under 1406. Issue: Who evaluates the forum selection clause? State or fed? 2.  Majority (Marshall): Federal law evaluates the FS clause.

 

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a.  Case is guided bc federal statute controls venue. b.  Federal law should not turn on state law. c.  Marshall assumes federal law has displaced state law, but he doesn’t explain why.   3.  Dissent (Scalia): State law evaluates the FS clause. a.  The fed statute doesn’t cover FS clause, so the fed statute is not pertinent (and we’re unguided).  b.  Consider state regulatory interest: why doesn’t the state want FS clause? NY might have a regulatory reason on how enforceable a contract is, but there’s no reason why federal courts would have a preference. ii.  Gasperini v. Center for Humanities, Inc. (1996) (shafted Hanna, used more of a Byrd analysis) 1.  Issue: How can court second guess the jury? FRCP says remittitur or new trial; NY law says to examine similar suits to establish ―standard of reasonableness.‖ Holding: NY law can be used without violating 7th amendment; NY state law is substantive; applies. (NY has a substantive interest in regulating tort awards.) 2.   Rule: Honor state sovereignty and consider state “substantive” regulatory interests and essential elements of federal courts (like right to jury trial). 3.   Likely Effects: More cases will probably be considered unguided after Gasperini. The modified Outcome Determination Test won’ t deal with problems of equality and forum shopping; more important to balance state interests versus federal interests in terests. 4.  Majority (Ginsburg): Unguided because Fed Law does not crowd out state law. a.  We are on the Unguided track because: i.  Rule 59 applies when an award is ―excessive.‖ The real issue here is whose law says it’s excessive. Textual question: use state court definition. de finition. ii.  This basically destroys the guided/unguided track  system. (This case seems guided; court instead looks at unguided factors to determine track.) b.  FEDERALISM: Fed court should honor state regulatory interest. i.  Doesn’t matter if if it is substantive substantive or procedural. In the ―form‖ it doesn’t affect how people operate ope rate in the world, but we shouldn’t be fooled by form. This is a practice that is embedded w/ substantive ideals, and fed jurisdiction should not change how people live ii.  NY was trying to reform tort law by getting a handle on high jury awards (strong regulatory interest). SUBSTANTIVE REASON FOR A PROCEDURAL RULE iii.  On fed side, it wouldn’ t change identity of trial court to look at jury decisions, but only trial courts, because appellate courts should not start looking at facts which would change their structure

 

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c.  Forum Shopping/Equality- keeping people from flocking to one court i.  Jury verdicts are a reason people would flock to a certain court. 5.  Dissent (Scalia): Guided a.  This is guided because Rule 59 expressly says to use federal  practice, and if there’s a valid and pertinent federal rule on point, you should use it. i.  Different from Steward, because Rule 59 has more guidance than 1404. b.  We’re on the guided tract because the law is procedural, not substantive. i.  In Stewart- ―What kind of contracts are enforceable?‖ is a substantive question. Here, the issue of how courts work is purely procedural. B yrd’s resurrection.  6.  Stein thinks Gasperini is Byrd’s IV. Determining the Content of State Law a.  The objective of the fed trial court is not to mimic a state trial court but rather to decide the case as would the highest state court. cou rt. What if the law is unsettle unsettled, d, inconsistent, or outmoded? b.  Salve Regina College v. Russell (1991) i.  Issue: Can a federal court of appeals review a district court’s determination of state law? ii.   Rule: Fed appellate court should review de novo questions of state law. They should not take judge’s personal preferences into consideration, but should look only at sources of law and policy. 1.  The question is about what the state law is, not the psychoanalysis of  how specific judges would decide- that’s not law.  2.  This is no different than a federal question, judges look at the same sources to figure out what the law is. iii.  Under Salve Regina, court's job is to ascertain how state Supreme Court would rule; not necessarily bound by old precedent.  precedent.   iv.  Supreme court does not review state law de novo — they only worry about uniformity of federal law, not uniformity with state law. decision of state law is is not binding on the state. The v.  A fed appellate court’s decision state Supreme Court would have to make the decision on it for it to be a new precedent.

 

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PLEADING, DISCOVERY AND ADJUDICATION

I.  Pleadings a.  Complaint and Answer i.  P gives initial account of wrongful behavior, and D gives his account ii.  Procedure- follow rules of civil procedure- Rules 7 and 8 iii.  Complaint- Common Law would be specific. Now (pre-Twombly) just gives the general sense of the suit, to be developed in discovery. Make bringing suit easier and low cost, but can also lead to frivolous suits b.  Reasons for Pleadings i.  it would be tough to prepare suit without knowing position of opponent ii.  factual sufficiency wouldn’t be accurate until trial, which would waste time  iii.  No way to know if evidence sought in discovery is relevant iv.  Hard to predict outcome c.  Candor in the Pleadings i.  Rule 11- makes attorney responsible for quality of the claims 1.  Applies to every paper submitted to court except discovery requests 2.  11A- Attorney must sign each paper w/ name and address 3.  11B- Certifies that to the best of his knowledge, formed after an inquiry reasonable under the circumstances that…  1.  12B2- claims are warranted by existing law 2.  12B3- the factual contentions have evidentiary support will after opportunity for investigation and discovery (ambiguity gives us wiggle room) i.  How much evidence do you need? Tort allegation allegation needs all essential elements of negligence. If you don’t allege all of the elements, then it could be dismissed for failure to state a claim ii.  Garr v. U.S. Healthcare, Inc. (1994) 1.  Mallone researches info for class action suit on stocks and gives info to other attorneys who file similar complaints. 2.  Levin & Sklar violated Rule 11 by relying on someone else’s research, because they all need to have an ―inquiry reasonable under  the circumstances.‖ Attorneys must conduct their own independent analysis of facts and law to form the basis for a pleading.  Result 

does notbe say that USwith He althcare Healthcare didn’t anything 3.  wrong,: Court they still may involved fraud but theydo walk awa away y free  because it’s the lawyers being punished for not doesn’t enough to see on their own what US Healthcare did 4.   Lesson: once you lose credibility with the judge, you’re dead.   iii.  11C- Sanctions 1.  11C2- After a party notes wrongful behavior, they can’t c an’t file a motion for sanctions for 21 days. days. During that time the party can fix the offending paper, and then sanctions cannot be filed. Provides a 21 day safe harbor.  1.  Not much incentive for party to file for motions because the fee goes to the court, not to them  2.  11C3- court on its own can order sanctions

d.  Drafting the Complaint  i.  Rule 7- Pleadings 1.  Complaint and Answer 2.  Counterclaim/Crossclaim and Answer

 

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ii.  Rule 8- General Rules of Pleadings 1.  8A1- short and plain statement of grounds for jurisdiction 2.  8A2- short and plain statement of claim showing P is entitled to relief  3.  8A3- demand for the relief sought 4.  Purpose of Complaint is to get things moving without all the specifics- however most lawyers are more specific s pecific than 8A2 or rule 11 requires b/c the judge depends on pleadings to tell them what the case is about iii.  Rule 9- Pleading Special Matters iv.  Bell Atlantic Corp. v. Twombly (2007) 1.  Facts- class action with subscribers to phone service who wanted cheaper plan. Claim is that phone companies conspired to prevent other companies from getting in by not letting them have access to wires and that they won’t compete with each other. Not much factual support except observations that they were acting like a conspiracy 2.   Rule (Souter)- According to Rule 8A2- the word ―showing‖ means that to show someone is entitled to relief, you need enough evidence to show that it’s not just possible, but plausible  3.  Souter says this fails to state a claim because it was factually deficient, even though if true, there would be a cause of action. 1.  Before Twombly- as long as P can prove facts are not inconsistent w/ the complaint that if proven would establish liability, then the complaint cannot be dismissed d ismissed for failure to state a claim 4.  Case does not address rule 11 (saying that you can get more evidence in discovery). Relies on 8A2. 5.   Dissent : we don’t have to choose between having full blown litigation or dismissal. There’s There’s middle ground- we can let discovery proceed and monitor the case as it develops 6.  We don’t know if this case is only going goin g to be applied to anti -trust cases or if it will be applied more broadly. 7.  Twombly will create problems when D has access to evidence that P does not have 8.  Balancing Test: and for specificity in pleadingsshow how possible it is, how expensive, how it compares with precedent v.  Elements of Claim 1.  Show the essential elements of the cause of action 2.  Usually no risk to over-pleading, but if you leave something out: 1.  If it’s essential- claim can be dismissed under 12B6 2.  Could constrain discovery 3.  Amendments- Rule 15 is permissive in allowing you to change your story. So, don’t make make strong reaches in your pleadings. 4.  Ad Damnum Clause 1.  Needed under 8A3- shows your demand. Not much function, function, except that in a default judgment this will be the amount entered. 5.  Burdens of Pleading/Proof  1.  Burden of Pleading- which party has to introduce a matter into the litigation in pleadings 2.  Burden of proof- which party has to prove the contested facts

 

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i.  Burden of Production ii.  Burden of Persuasion e.  Motions to Dismiss i.  Rule 12: Defenses and Objections 1.  12A1- after complaint is served, must answer in 20 days (60 if  Waived service) 2.  12A4- serving a motion under this rule alters this time period 1.  If motion is denied, you have 10 1 0 days after court’s action to respond 2.  If the court granted motion- game is over, these are motions to dismiss 3.  Rule 12 defenses are available before answer is filed (b/c they are mostly procedural) 3.  Fragile Defenses: 12B 2-5 Must assert in first response you make or you lose it! 1.  12B2- Lack of Personal Jurisdiction 2.  12B3- Improper Venue 3.  Rule 12B4, 12B5- Insufficient process or service of process i.  Just saying that the summons itself or service were incorrect- not used often because they are easily fixed 4.  Durable Defenses: 12B1,6,7- will not be waived by answering or moving (but you’re only allowed 1 pre -trial motion, so you have to wait until after answering- unless 12H3- SMJ can be dismissed at any time) 1.  12B1- Lack of Subject Matter Jurisdiction 2.  12B6- failure to state a claim i.  Means if everything you said is true, it does not give rise to an actionable claim 3.  12B7- failure to join a party under rule 19 i.  We’re talking about 19B- when it’s necessary for fair  adjudication 5.  12E- Motion for a more definite statement 1.  When the claim could be actionable but we don’t know  because it’s not specific enough  6.  12G1. -  Joining Claims no defense or objection is waived by joining it with other defenses/objections in a responsive pleading or motion 7.  Rules for Raising Defenses 1.  12G/12H1 together: 12G- party can only make 1 motion under this rule; 12H if fragile defenses (12b2-5) (12b2 -5) are not in the motion but were available, they are waived 2.  End of 12B- Filing an answer ends the chance to make 12B motions because it says that the motion must be asserted before the pleading 3.  If you have not included something in your pleadings- no basis for 12C Motion for judgment on pleadings 4.  Failure to state a claim and failure to join a party- can be asserted in pleading, at motion for judgment on pleadings or at trial (12H2) 5.  12H3- lack of SMJ- can be raised at any time 6.  12F- Motion to Strike- can strike an insufficient defense

 

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7.  12H1- if you didn’t include a motion in an answer, you have 1 amendment as matter of course i.  When response is not allowed- 20 days to amend ii.  When response is allowed- before the answer is served 8.  Policy1.  Fragile defenses must be asserted in first response because we don’t want to waste court’s time dismissing on most technical grounds first- instead they can decide the order mo tion after  2.  We don’t want to be able to extend the case with motion motion 3.  Durable Defenses- reason for not waiving is that it won’t make sense at trial

f.  Answer - Rule 8 i.  8B- For every paragraph of complaint, there will be a parallel numbered paragraph in the answer saying: s aying: admit, deny, or not sufficient info   1.  If part of an allegation is true, pick out the true part and deny the rest   2.  Consequence of admission: P is relieved of obligation to satisfy burden of proof for that element   3.  Consequence of denial: whoever has burden of proof now has to prove it  1.  ―I don’t know‖ has same consequence as denial but it would violate rule 11 to say you don’t know when are charged with knowing under reasonable effort  2.  Ineffective denial is treated as an admission  4.  Defenses- most defenses will be through the responses   ii.  8C  –  – Affirmative Defenses 1.  Affirmatively state any avoidance or affirmative affirmative defense. This is giving an additional reason why you’re not liable besides defenses in the responses 2.  Doesn’t hurt to err on the side of making ma king something an affirmative defense b ecause pleadings 3.  Must bring up defenses or you can’t assert them, because are about putting the other side on notice Rule 13 Rule 15 iii.  Counterclaimsg.  Amendments to the Pleadingsi.  15A1- amendments as a matter of course  ii.  15A2- other amendments- court should freely grant leave when justice so requires  1.  Factors: when did you learn it, time before trial, wasted discovery  2.  Frequently a judge may say they’ll th ey’ll allow it but P has to pay for additional discovery and time condition  3.  Claim must be in the amended complaint or it can’t be asserted at trial.  iii.  15C- Relation Back 1.  Amendment relates back to date of original claim when applicable statute of limitations allows it and when amendment amend ment arises out of the

same transaction or occurrence to the original pleading , or 2.  The amendment changes the party, out of same transaction or occurrence, within period provided by 4M (120 days), the party has:

 

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1.  Received notice of the action, or knew or should have known that the action would be brought against it but for a mistake over the proper party’s identity  2.   NOTICE: it’s not service that we’re looking looking for… just the point where D received notice or should have known 3.  Glitch in the system- penalizes someone that files a complaint well in advance of a statute of limitations, because they are still limited by 120 days, even if statute of limitations would be longer II.  Discovery a.  Unilateral Disclosures- Required Disclosures- Rule 26A i.  26A1- Initial Disclosure 1.  Name, address, phone number of individuals likely to have discoverable info that you may use 2.  Copies of documents that the party may use to support claims (except if only for impeachment) 3.  Calculation of damages 4.  Inspection and copying of insurance agreements- to know the limits for negotiations ii.  26A2- Disclosure of Expert Testimony 1.  Must disclose expert testimony 2.  26A2C- within 90 days before date of trial b.  Adversarial Discovery i.  Pretrial Conference- Rule 16 1.  Discovery Plan- After initial disclosure, sit with judge in chambers and explain how we plan to use the remaining discovery devices 2.  Set discovery window- date for completion ii.  Scope- 26B 1.  Request must be appropriately focused, not too broad 2.  Must be reasonably calculated to lead to the discovery of admissible information 3.  Court must limit the extent of discovery if the burden or expense outweighs the benefit iii.  Devices Rule 33with written 1.  Interrogatories1.  Written questions written answers. Attorney drafts questions. Available only to parties. parties. 2.  Used for specific info that a witness may not have and for any contention for legal strategy (b/c there’s a burden of  reasonable investigation) 2.  Depositions- Rules 30 & 31 1.  Cross examination of witness under oath, recorded by court reporter. Anyone w/ relevant info. 2.  Good for follow up questions by asking in a different way 3.  36B6- At an organization- can just request the most knowledgeable person on a topic 4.  45- subpoena non-parties- not more than 100 miles

3.  Request for Production- Rule 34 1.  Documents or other tangible things 2.  Electronic Documents 4.  Mental/Physical Examinations- rule 35

 

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1.  More constrained b/c of intrusiveness 2.  Must have good cause shown- usually if mental or physical condition is at issue 5.  Requests for Admission- Rule 36 1.  Ask yes or no questions to factual or legal questions 2.  Typically done at end of discovery 3.  If admitted, you don’t have to prove it  4.  37C- Sanctions if they didn’t admit something that is proved at trial 6.  26E- Parties have a duty to update disclosures c.  Attorney Client Privilege –  Privilege – related related to adversarial discovery above i.  Attorney client is always protected. The 3rd party is where there is more issue. ii.  Work product rule – the attorneys strategy and thoughts are protected but not the facts iii.  Under Hickman v. Taylor – Attorneys are protected from revealing mental impressions. It’s a state by state determination of how broad the work  product rule really is. iv.  Facts of the case must be turned over. v.  However if the questions asked are about the attorneys thoughts and strategy intertwined in the questions, then that memo could be safe from disclosure. ―she seems like a good witness w itness from being trustworthy‖…etc. that would be protected d.  Summary Judgment- Rule 56 i.  Can be used to raise legal and factual deficiencies   ii.  Burden of production- summary judgment tests whether person w/ this burden to produce evidence satisfied it 1.  Judge does not weigh the evidence; he identifies whether the party w/ burden of production has produced evidence on which a decision can be based  iii.  Either P or D can move for summary judgment  1.  Usually, P has the burden. So, if D moves for summary judgment, they must show the ABSENSE of evidence supporting the claim   2.  P must not only show existence of evidence, but that evidence demonstrates iv.  Celotexconclusively Corp. v. Catrett (1986) the truth of its allegations  1.  Facts: P is suing for her husband’s death. He was exposed to asbestos manufactured by 15 companies. D moved for summary  judgment. 2.   Rule- There’s a fundamental difference when moving party does or  does not have burden of production. 1.  Person moving for summary judgment, if they don’t have the burden of production, does not have to negate the other sideall they have to do is look at the other side and say the record lacks evidence 2.  A moving party, if they have the burden of production, would have to give proof they are right. 3.  D (moving party) does not have to come forward w/ their own documents or affidavits. They just have to show P doesn’t have the evidence. P then has the opportunity to produce additional evidence, including affidavits of competent witnesses

 

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4.  All you need for summary judgment is an affidavit- so there’s no reason to depose your own witness. No need to put it on the rrecord. ecord. v.  Summary judgment can be done on specific issues to get them out of the case before trial. vi.  The main standard to defeat summary judgment is if there is a genuine issue of material fact. vii.  Time limit: D can move for summary judgment any time, but P has to wait 20 days from time suit commences e.  Final Pretrial Order- 16E i.  Lists every witness to be called and substance of testimony ii.  Final and definitive statement of legal and factual contentions III. Trial a.  Right to Jury Trial i.  7th Amendment Phrasing 1.  ―in any court of the United States‖ - refers to federal courts alone 2.  ―In suits at common law‖ - common law v. equity from a historical approach. Rule evolves from different different courts for law and equity. 3.  ―Right to jury trial shall be preserved‖ - litigants have a right to jury trial if at the time the amendment was adopted, a litigant would have been entitled to a jury trial in England 4.  Now, courts have evolved to focus on if the new statutory right is analogous to a claim that would have been heard at common law. ii.  Curtis v. Loether (1974)------we didn’t do this case!!!!!!!!!!!!!! case!!!!!!!!!!!!!!  1.  Facts- woman was denied an apartment because of her race, violating fair housing act. 2.   Rule- court has developed a preference for sending new statutory claims to juries. Practice is when it doubt, call it analogous. 3.  Exception is cases where equitable relief is being demanded (injunction, restitution, accounting). Court will likely likely say that this would have been in court of equity and should go to judge 4.  Summary: If you’re looking for for damages, you will get a jjury ury trial. If  you’re looking for injunctive relief, you will not get a jury trial.  iii.  Responsibilities of Judge and Jury 1.  Jury: fact   Giveof 1.finder meaning/context to abstract legal rules 2.  Find Damages 3.  Apply the law to the facts 2.  Court: find law b.  Trial procedure i.  Jury selection (47)- between 6 and 12 jurors   1.  Voir dire- brief questioning of potential jurors   2.  Peremptory challenge- challenge without cause  ii.  Opening Statements- outline the case, legal theory, and testimony iii.  Presentation of Evidence 1.  42B- Bifurcate- split cases between issues. Decide on 1 issue before arguing another iv.  Testimony 1.  Direct examination, then cross examination (only matters testified on in direct) 2.  Objections- when question or testimony violates a rule of evidence

 

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v.  vi.  vii.  viii. 

3.  45- witnesses are subpoenaed to attend fed trial Presentation of Real Evidence 1.  Tangible objects, or demonstrative evidence- charts/models Summations- closing arguments Jury Instructions- 51- called the ―charge‖  Form of the Verdict- 49 1.  General- jury decides winner and damages 2.  Special Verdict- jury answers factual question and court applies it 3.  General Verdict w/ Written Interrogatories- jury determines d etermines liability

 but it’s crosschecked with factual questions ix.  Jury Deliberation 1.  Fed jury must reach unanimous verdict c.  Post-Trial (and Before Verdict) Relief  i.  Final 3 Big Motions- at or after trial to correct/control jury 1.  50- Motion for Judgment as Matter of Law (JMOL) 1.  Dixon v. Wal-Mart Stores (2003) i.  P gets caught in plastic strap; falls. falls. D moves for JMOL; Court approved: the jury could not have find WM was liable based only on evidence P presented ii.  P had burden to prove plastic had been on floor enough time to make store responsible iii.  Court: the strap couldn’t have come from the newspapers bc someone would have picked it up; P didn’t show how long it was on the floor.  iv.  The standard is that verdict should be based on evidence 2.  Timing  i.  50A- Any time before the case is submitted to jury  1.  D can move as soon as P puts on his case   2.  P has to wait for D to put on his case  ii.  50B- After the Jury Decision   1.  Within 10 days after judgment  3.  Policy  i.  Waiting until after the trial is more common, but you

have togenerally make thewaits movement before ii.  Judge b/c it lets jury  have a shot at doing the right thing and because if the decision were to get appealed, they would have a verdict to fall back  on  2.  59- Motion for New Trial 1.  Standard is lower than JMOL.   2.  Judge has enormous discretion to call for new trial  3.  Remittitur- allows judge to give P opportunity to reduce damages or else have a new trial   4.  Additur (not in fed court)- judge orders new trial unless D raises damages  3.  60- Motion for Reconsideration 1.  Can be on jury instruction, denial of a motion, new evidence, etc  2.  1 year limit for certain reason, but more for others othe rs 

 

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PRIOR ADJUDICATION

I. 

Introduction a. Prior Adjudication/Preclusion- An adjudication in one case can have affects in other cases decided after the first case i.  Claim Preclusion- bars re-litigation of the same claim that was already adjudicated, and any claims that should have been consolidated in the first case 1.  The omitted claim didn’t have to be brought- can be precluded by omission 2.  Strict Identity of parties- must be party in earlier proceeding p roceeding or in privity with a party for preclusion to apply ii.  Issue Preclusion- bars specific legal or factual determinations. Takes it from one context and puts it in another 1.  Only precluded from claims you litigated that were necessarily decided and were adverse to you 2.  No identify of parties. Parties did not have to be there. b. Reasons: i.  Litigation is expensive- should only do it once ii.  Efficiency- one big case instead of multiple

II.  Claim Preclusion/Res Judicata- Stein thinks this can be a mean spirited rule   For judgment to be barred, the prior judgment must have: o  been rendered by a court of competent jurisdiction o  been a final judgment on the merits o  the same cause of action and the same parties or their privities were involved in both suits a. Same Claim  i.  Relaxation of joinder rules  – now that parties were permitted to consolidate their claims, preclusion law increasingly required them to do so ii.  Rush v. City of Maple Heights (1958)   1.  Facts: P had previously won suit against def for property damage to her motorcycle in accident. Pl then tried to bring suit for personal injury 2.   Rule : Although infringed, infringed, the court found that the injuries arosedifferent from therights same were transaction iii.  Harendeen v. Champion International Corp. (1975) 1.  Facts: P loses first suit in which he alleged that company fraudulently induced him to leave business. P then brought new suit to get payments he’s eligible for under pension plan.   2.   Rule: Claim must be out of the same cause of action. 3.  Court says that P’s claim was not out of the same cause of action b/c it was a separate wrongful act, so it is not barred. 4.  Case was decided before restatement 2nd’s definition of transaction or occurrence- if you can link up nexuses (time, place, origin, motivation), it’s the kind of claim that should be precluded. p recluded.  a.  Today, Harendeen would lose because it is consequence of  the same event iv.  Bar- party lost in the first proceeding; Merger- party p arty won in first proceeding v.  Three things to look at to determine of causes of action are the same:

 

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1.  Whether different judgment in the second action actio n would impair or destroy rights or interests entered in first action. 2.  Whether the same evidence is necessary to maintain the second cause of action as was required in the first 3.  Whether the essential facts and issues in the second were present in the first. vi.  Simply changing your legal theory doesn’t entitle you to bring a 2 nd claim b. Changed circumstances and Other Countervailing Policies i.  Federated Department Stores, Inc. v. Moitie (1981) 1.  Facts: Group of P's, two of which don't appeal; those who do appeal win. 2 non-appealers bring second suit trying to use the deci decision sion in the appeal. 2.  Rule: Can’t go with a 2nd case which should result in a better  judgment just because the law changes  – res judicata – moitie was final because they did not appeal. The other cases won on appeal. Moitie cannot bring a 2 nd case, claiming essentially the same thing, to win based on what the other parties did on their appeal. There must be finality. ii.  Problem: 60(b) permits a court to relieve a party of final judgment when there is new evidence that was not discoverable earlier. causes people with a minor injury that could become worse to sue when they wouldn’t have. sue for potential damage- not practical iii.  Harrington v Vadallia-Butler 1.  After a case was in the appeals process, a new law was added from a different case, however Harrington was not allowed to bring the new law up in a 2nd action. Rule 11 says the claim needed to have been  brought up the first action. Can’t add it to an appeal/2nd action. 2.  Rule 11 is a claim preclusion designed to push all claims into the first lawsuit so people don’t keep adding claims to the same issue.  c. The special problem of Defenses i.  D who bypassed chance to assert a defense/counterclaim may be precluded from asserting is as a separate s eparate claim for relief  wa y 1.  Generally follow compulsory counterclaim rules (13)… and in a way makes it a mandatory rule of joinder v. Federal Intermediate ii.  Mitchell 1.  Facts : P brings suit against DCredit and D Bank asserts(1932) defense, but does not assert counterclaim. P loses. D then brings separate cause of action using his defense as claim 2.   Rule: One cannot use the same defense first as a shield and then as a sword. 3.  Court says claim is barred by res judicata because the facts pleaded ple aded in the defense are the same as the separate suit 4.  Reason: D had the alternative to assert the defense as a separate counterclaim in the first suit iii.  Restatement 2nd of Judgments 1.  A D who may interpose a claim as a counterclaim in an action but fails to do so is precluded from maintaining and action on the claim

if:

a.  (1) the counterclaim is required to be interposed by a compulsory counterclaim statute or rule of court, or or

 

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b.  (2) the relationship between the counterclaim and the P’s claim is such that successful prosecution of 2 nd action would nullify the initial judgment or would impair the rights established in initial action. i.  Test is if the entertaining the claim in F2 would  d. On the Merits

undermine the rights in F1, then defense preclusion operates to preclude the claim. 

i.  Only cases finally disposed of on the merits will stop re-litigation of the claim ii.  Depends if the case was dismissed with or without prejudice. iii.  Costello v. United States (1961)  1.  Facts: Gov’t brings denaturalization proceeding but is dismissed b/c affidavit wasn’t filed along w/ complaint. complaint. Court did not specify whether it was dismissed with or without prejudice. 2.   Rule: a case is not barred if it is dismissed without prejudice, because it was not a judgment on the merits 3.  Improper affidavit is lack of jurisdiction- and lack of jurisdiction is always without prejudice  a.  To fall under jurisdiction, its more than just personal/subject matter. Also includes what is needed to get into court i.e. affidavit in this case which under 41B was non on merits. iv.  Rule 41B 1.  By involuntary dismissal (except jurisdiction, venue, or failure to  join a party) it is an adjudication on the merits unless otherwise specified v.  Semtek case said: vi.  If a Federal court says sa ys in F1(forum 1) that something is on the merits, then in F2, in a state court, is not claim preclusive for state courts but is claim  preclusive for the exact same Federal court. This is because you don’t want federal courts expanding/modifying the rights of the state court.

III. 

Collateral Estoppel/Issue Preclusion- Stein hates collateral estoppel. Causes more harm than results.   good, costs more money than it saves and privileges more wrongs than good 

Requirements for collateral estoppel: o  Must be the same issue o  Issue must be actually litigated o  Has to be necessarily decided a. Intro

i.  Transplant into different legal context- Operates to preclude a party from contesting a particular question of law or fact that was decided in an earlier case 1.  Court says different context doesn’t matter, but if it’s a different burden of proof, then no collateral estoppel ii.  Time Saver- don’t re-litigate an issue, but assuming jury would decide the same iii.  In Mutuality- we don’t often see issue preclusion because it will u sually have common nucleus of facts and already be barred by res judicata

 

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1.  Often occurs in Mass Torts iv.  Can’t use collateral estoppel against  someone who didn’t already litigatemust have their day in court b. Traditional Applications i.  Little v. Blue Goose Motor Coach Co. (1931)  1.  Facts: F1- D sued P for damage to the bus and won. F2- P tries to sue D for personal injury. Court holds collateral estoppel applies- P was determined to be negligent in F1 and is barred from recovery.  2.   Rule: Issue preclusion bars suits when the issue of fact at issue has already been decided  3.  Original decision was a final determination on the issue of  negligence in the crash nd ii.  2 Restatement of Judgments: 1.  When an issue of fact/law is actually litigated and determined by a valid and final judgment, and the determination is essential to the  judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim 2.  There should be no preclusion if ―the party against whom preclusion is sought could not, as a matter of law, have obtained review of the  judgment in the initial action.‖  iii.  If in F1 P sues D and loses because both P and D are found negligent. P cannot bring another action in F2 because they could have appealed their negligence. but D can bring it up in F2 because although they were found negligent in F1, they are not able to appeal that since they won the case anyway and had no incentive to appeal a verdict in their favor. So D could go to F2 and make a case that they were not negligent even if that conflicts with F1.  c. Modern Applications  i.  Kaufman v. Eli Lilly & Co. (1985) 1.  Facts: P brought suit against D for personal injury due to DES. In previous suit, D had been found liable to to another P. P in this suit sought to have D precluded p recluded from re-litigating factual issues 2.   Rule: Issue must be necessarily decided in order to apply 3.  D was precluded from re-litigating 5 of the 6 issues 4.  Not proximate cause it isnot based and novel ateanonunresolved this issue…Needs to application of the lawissue and def db/c ef did litigon be given chance to be heard on that issue 5.  Note- P can take advantage of someone else’s win, but she can’t be prejudiced from having her day in court 6.  Problem with mass torts- collateral estoppel sets the stage for other cases by not letting letting D retry issues. This gives the possibility for injustice. d. Exceptions to Issue Preclusion  i.  Party against whom preclusion is sought could not have obtained review of the  judgmentt (couldn’  judgmen (couldn’tt appeal appeal b/c they won)  ii.  Claims are substantially unrelated or there’s change in law  iii.  There’s a difference of procedures between the 2 courts  iv.  Heavier burden of persuasion in F1 v.  Adverse impact on public policy vi.  Special circumstance meant party did not have adequate opportunity for litigation

 

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IV. 

Parties Bound and Advantaged a. Vicarious Representation- Privity (Burden Side) i.  You always get at least 1 opportunity to defend your position, and that’s a matter of due process. However, if you derived your rights from someone else, you may be bound by their legal proceeding ii.  Taylor v. Sturgell 1.  Taylor sues the FAA under und er the FIA(freedom of info. Act) to get documents on an airplane he wanted to restore. Taylor’s friend had  previously unsuccessfully sued for the same documents, but didn’t correctly challenge the reasons that the FAA gave as their defense.   2.  Taylor’s suit was an issue preclusion saying under ―virtual representation‖ he was too closely associated with his friend who filed the first suit and was therefore represented by him.   a.  The Court rejected the lower courts rational saying virtual representation is not good and allowed the suit to go forward saying that adequate representation could apply to other cases when:  i.  Non – parties can be bound to others decision when:   1.  After test cases allow parties to agree a gree for it  2.  Exceptional relationships such as assignee and assignor  3.  Represented by trustees, guardians, fiduciaries   4.  Already had opportunity to present arguments and had his day in court  5.  Designated representative – when a non-party later bruins suit as an agent for a party who is bound by a judgment  6.  Statutory scheme: bankruptcy and probate proceedings or other suits brought only on behalf of public at large  b.  iii.  General Foods Corp. v. Massachusetts Dept. of Public Health….did Health….did not do this case!!!!!!!!!!! case!!!!!!!!!!! (1981) P’s triedof to asue dept of health for already labelinghad regulations. One 1.  Facts P was: a2 member trade group that had a suit against state over this topic, and they were precluded from re-litigating, but the 2nd P could still litigate 2.   Rule: if you participate in an organization that participates in a lawsuit, you are in privity with that organization and you are bound by the outcome iv.  Another form of vicarious liability is class action- you are given notice of  the suit and if you don’t want to be held by judgment, you have to opt ou t b. Mutuality (Benefit Side) i.  Defensive Non-Mutual Issue Preclusion  1.  D is asserting another party’s victory against P as a defense   2.  Burnham v. Bank of America Nat’l Trust Savings Assoc. Assoc . (1942)

a.  In suit over estate, P files suit against D for money, and court ruled the money was a gift. Then P tries to sue the bank. Bank used the judgment in F1 to estop P from suing them.

 

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b.   Rule- With defensive collateral estoppel, there does not need to be mutuality of estoppel. So, S o, now a particular finding in F1 can come back to burn a P even though he has a different D in F2 c.  There is no reason to require that the person ASSERTING collateral estoppel be in privity to a party in first litigation —  you only have to be b e a party if it’s being asserted AGAINST you ii.  Offensive Non-Mutual Issue Preclusion 1.  P seeks to take advantage of another party’s victory against a D to preclude D from contesting the issue of liability 2.  Controversial- courts are cautious a.  With mass torts, there could be thousands of cases all using the same judgment. This could replicate a mistake lots and lots of times, rather than just a couple 3.  Parklane Hosiery Co. v. Shore (1979) a.  Facts- Stock holder class action for false statements in a merger. SEC had previously filed the same suit. P could use the judgment to their advantage and not-re-litigate issues that are already decided. i.  This is a huge advantage to the 2 nd  P is the D had  already lost . However, this cannot be used in certain situations: such as if the first case was for ie. 7k and then the 2nd P sues for 7million.(maybe D didn’t care to defend in first case for nominal amount). a mount). Or if  there were previous inconsistent judgments. Or if  there are procedural opportunities that are different in the 2nd suit such as a right (Justice (Ju stice Stewart said a right to a jury instead of a judge does not count as a good enough procedural difference) b.   Rule: Adopts ―wait and see‖ result - We will ride on P1’s win if they win, and if they don’t d on’t then we ignore their lose and get our own day in court c.  Courts have discretion decide where nonmutual should issue preclusion shouldtoand should not offensive apply (don’t want to reward someone that could have joined) d.  If P sues D1 and wins, they the y can’t use that win against a new D2 in a different case because D2 would have had to have been a party in the D1case. Exam review: Work the facts, apply them as best you can. If trying to figure out sub vs. procedure: go Hanna and Byrd This is not a test about what isn’t law anymore. an ymore.  You have to have both PJ and SMJ to get into a federal court. Swedloff: ―Could you r anticipate being hailed into the court there‖ test is a bullshit test.   Better: Where did you anticipate your product going?

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