Table of Contents
I.
PLEADING ....................................................................................................................................... 1
A.
B.
RULE 8: PLEADING REQUIREMENTS .......................................................................................................... 1
THE COMPLAINT ................................................................................................................................... 1
i.
Formal Sufficiency of the Complaint ............................................................................................ 1
1.
2.
ii.
Filing & Serving the Complaint .................................................................................................... 2
1.
2.
3.
C.
D.
i.
Conley v. Gibson...................................................................................................................................... 3
King Vision v. Dmitri Restaurant ............................................................................................................. 4
Carter v. US ............................................................................................................................................. 4
AMENDING THE PLEADINGS..................................................................................................................... 4
Rule 15(a): Amendment as a Matter of Course ........................................................................... 4
1.
2.
Robinson v. Sappington .......................................................................................................................... 4
“Relates Back” Theory & Tran v. Alphonse Hotel Corp. .......................................................................... 5
POLICING PLEADINGS & MOTIONS ........................................................................................................... 5
i.
Rule 11: Sanctions ....................................................................................................................... 5
1.
2.
3.
II.
Mullane v. Central Hanover Bank & Trust Co. ........................................................................................ 2
Rule 4: Service of Process ....................................................................................................................... 2
Rio v. RII .................................................................................................................................................. 3
RESPONDING TO THE COMPLAINT ............................................................................................................. 3
i.
Rule 12 Motions ........................................................................................................................... 3
ii.
Rule 8(b): The Answer .................................................................................................................. 3
1.
2.
3.
E.
Swierkiewicz v. Sorema (2002) ............................................................................................................... 1
Bell Atlantic v. Twombly (2007) .............................................................................................................. 1
Patsy’s v. IOB Realty & In re Pennie& Edmonds LLP............................................................................... 5
Fantz v. US Powerlifting Federation ........................................................................................................ 5
No Rule 11 Violation for Valid Challenge to Precedent .......................................................................... 6
PERSONAL JURISDICTION & VENUE ................................................................................................ 6
A.
B.
PENNOYER V. NEFF................................................................................................................................ 6
APPLYING MINIMUM CONTACTS .............................................................................................................. 7
i.
Statutory Authority: State “Long-Arm” Statutes ......................................................................... 7
ii.
Constitutional Authority: Minimum Contacts .............................................................................. 7
1.
2.
3.
4.
5.
6.
7.
C.
i.
International Shoe Co. v. Washington .................................................................................................... 7
McGee v. International Life Insurance .................................................................................................... 7
Hanson v. Denckla .................................................................................................................................. 8
Worldwide Volkswagon v. Woodson ...................................................................................................... 8
Asahi Metal Industry Co. v. Superior Court ............................................................................................. 8
E-Tailers: Zippo Manufacturing Co. v. Zippo Dot Com, Inc. ..................................................................... 9
Other Cases ............................................................................................................................................ 9
BEYOND MINIMUM CONTACTS: OTHER BASES FOR JURISDICTION................................................................... 9
General Jurisdiction ..................................................................................................................... 9
1.
ii.
Bird v. Parsons ........................................................................................................................................ 9
“Presence”: Service in the Forum State ..................................................................................... 10
1.
iii.
Burnham v. Superior Court ................................................................................................................... 10
Consent & Contract ................................................................................................................... 10
1.
Carnival Cruise Line v. Shute ................................................................................................................. 10
D.
THE REQUIREMENT OF NOTICE .............................................................................................................. 10
i.
Jones v. Flowers ......................................................................................................................... 10
E.
PERSONAL JURISDICTION IN FEDERAL COURT ............................................................................................ 11
F.
VENUE .............................................................................................................................................. 11
i.
Original Venue ........................................................................................................................... 11
ii.
Change of Venue ....................................................................................................................... 11
i.
Forum Non Conveniens: Piper Aircraft v. Reyno................................................................................... 12
i
III.
SUBJECT MATTER JURISDICTION ................................................................................................... 12
A.
i.
FEDERAL QUESTION JURISDICTION .......................................................................................................... 12
The “Well-Pleaded Complaint” Rule .......................................................................................... 12
1.
ii.
1.
2.
B.
i.
ii.
1.
IV.
United Mine Workers of America v. Gibbs ........................................................................................... 15
Under Diversity Jurisdiction ....................................................................................................... 15
1.
2.
i.
ii.
Del Vecchio v. Conseco.......................................................................................................................... 14
Aggregation Rule .................................................................................................................................. 15
SUPPLEMENTAL JURISDICTION................................................................................................................ 15
Under Federal Question Jurisdiction .......................................................................................... 15
ii.
D.
The Complete Diversity Rule ................................................................................................................ 14
Determining Citizenship ....................................................................................................................... 14
Amount in Controversy .............................................................................................................. 14
1.
2.
i.
Merrell Dow .......................................................................................................................................... 13
Graber................................................................................................................................................... 13
DIVERSITY JURISDICTION ....................................................................................................................... 14
Diversity of Citizenship............................................................................................................... 14
a.
b.
C.
Louisville & Nashville RR Co. v. Mottley ................................................................................................ 12
Sufficiency of the Federal Question ........................................................................................... 13
Stromberg Metal Works v. Press Mechanical ....................................................................................... 16
Meritcare Inc. v. St. Paul Mercury Insurance Co. .................................................................................. 16
REMOVAL JURISDICTION & PROCEDURE................................................................................................... 16
Ritchey v. Upjohn Drug Co. ........................................................................................................ 16
Lanford v. Prince George’s County............................................................................................. 17
STATE LAW IN FEDERAL COURTS (THE ERIE DOCTRINE)................................................................. 17
A.
PERSPECTIVES ON ERIE ......................................................................................................................... 17
Swift v. Tyson: “Law” Only Means Statutes ............................................................................... 17
Erie RR v. Tompkins: “Law” Means Statutes & Common Law ................................................... 18
“Reverse” Erie Problem .............................................................................................................. 18
B.
DEVELOPING & APPLYING ERIE IN THE PROCEDURAL CONTEXT ..................................................................... 18
i.
Guaranty Trust v. NY ................................................................................................................. 18
ii.
Ragan v. Merchants Transfer .................................................................................................... 18
iii. Hanna v. Plumer (Modern Approach) ........................................................................................ 19
iv. Walker v. Armco Steel Corp. ...................................................................................................... 19
v.
Gasperini v. Center for Humanities (aka “Ginsberg’s Folly”) ..................................................... 19
C.
ASCERTAINING THE CONTENT OF STATE LAW ............................................................................................ 20
i.
Webber v. Sobba ....................................................................................................................... 20
i.
ii.
iii.
V.
DISCOVERY ................................................................................................................................... 20
A.
B.
MECHANICS ....................................................................................................................................... 20
SCOPE & LIMITATIONS ......................................................................................................................... 20
i.
Relevance & Proportionality ...................................................................................................... 21
1.
ii.
iii.
1.
2.
3.
C.
i.
Work-Product Privilege & Hickman v. Taylor........................................................................................ 22
Extending Privilege to 3rd Parties: In re Tri-State Outdoor Media Group, Inc. ...................................... 22
Expert Discovery Rules & Tri-State Outdoor Media Group ................................................................... 22
HANDLING DISCOVERY DISPUTES: HEREIN OF DISCOVERY SANCTIONS ........................................................... 22
Motions to Compel .................................................................................................................... 22
1.
ii.
National Hockey League v. Metropolitan Hockey Club ......................................................................... 22
Motions for a Protective Order .................................................................................................. 22
1.
iii.
Zubulake v. UBS Warburg LLC ............................................................................................................... 21
E-Discovery Rules ....................................................................................................................... 21
Privilege ..................................................................................................................................... 21
Phillips v. GM ........................................................................................................................................ 23
Other Motions Concerning Discovery Abuses ............................................................................ 23
ii
1.
VI.
Gonsalves v. City of New Bedford ......................................................................................................... 23
CASE MANAGEMENT, SETTLEMENT, & ADR .................................................................................. 23
A.
i.
CASE MANAGEMENT ........................................................................................................................... 23
The Scheduling Order ................................................................................................................ 23
1.
ii.
1.
B.
Tower Ventures v. City of Westfeld ....................................................................................................... 24
Final Disclosures: The Final Pretrial Order ................................................................................. 24
RMR v. Muscogee County School District ............................................................................................. 24
SETTLEMENT & ADR ........................................................................................................................... 24
VII.
THE JUDGE & JURY ................................................................................................................... 24
A.
ADJUDICATION BEFORE TRIAL: SUMMARY JUDGMENT ................................................................................ 24
Celotex v. Catrett ....................................................................................................................... 25
Matsuhida ................................................................................................................................. 25
B.
JUDICIAL CONTROLS OVER JURY FACTFINDING DURING & AFTER TRIAL ......................................................... 25
i.
Interlocutory Appeal: Scott v. Harris.......................................................................................... 25
ii.
Judgment as a Matter of Law: Reeves v. Sanderson Plumbing ................................................. 25
iii. Jury Instructions, Special Verdicts, & General Verdicts with Jury Interrogatories ..................... 25
iv. Renewed Motion for Judgment as a Matter of Law & Motion for a New Trial ......................... 26
i.
ii.
1.
2.
VIII.
PARTY JOINDER ........................................................................................................................ 26
A.
i.
CLAIM JOINDERS ................................................................................................................................. 26
Defendant’s Joinder of Claims Against Plaintiff ......................................................................... 27
1.
B.
1.
1.
Impleader: Lehman v. Revolution Portfolio LLC .................................................................................... 27
The Assertion of Additional Claims in the Context of Permissive Joinder .................................. 28
1.
LASA v. Alexander ................................................................................................................................. 28
INVOLUNTARY JOINDER UNDER RULE 19 ................................................................................................. 28
i.
Rule 19: When Joinder is Required ............................................................................................ 28
1.
Makah Indian Tribe v. Verity................................................................................................................. 29
INTERVENTION AS AN ALTERNATIVE TO PERMISSIVE & MANDATORY JOINDER ................................................. 29
i.
Grutter v. Bollinger .................................................................................................................... 29
1.
IX.
Alexander v. Fulton County, GA ............................................................................................................ 27
Joinder of Additional Parties by the Defendant ......................................................................... 27
iii.
D.
Painter v. Harvey .................................................................................................................................. 27
PERMISSIVE PARTY JOINDERS................................................................................................................. 27
i.
Joinder of Multiple Plaintiffs & Defendants ............................................................................... 27
ii.
C.
Unitherm Food Systems v. Swift-Eckrich ............................................................................................... 26
Weisgram v. Marley.............................................................................................................................. 26
Exam Strategy for Intervention of Right ............................................................................................... 30
JUDGMENTS ................................................................................................................................. 30
A.
CLAIM PRECLUSION (RES JUDICATA) ....................................................................................................... 30
i.
Rush v. City of Maple Heights .................................................................................................... 31
B.
ISSUE PRECLUSION (COLLATERAL ESTOPPEL) ............................................................................................. 31
i.
Defensive Collateral Estoppel .................................................................................................... 31
1.
ii.
C.
X.
Parklane Hosiery Co. v. Shore ............................................................................................................... 31
Offensive Collateral Estoppel ..................................................................................................... 31
CLASS ACTIONS................................................................................................................................... 32
APPEALS ....................................................................................................................................... 32
A.
B.
STRUCTURE & FUNCTION OF APPELLATE COURTS ...................................................................................... 32
BASIC CONCEPTS ................................................................................................................................. 32
i.
Appealability .............................................................................................................................. 32
ii.
Reviewability ............................................................................................................................. 32
iii
iii.
iv.
XI.
Standards of Review .................................................................................................................. 32
Mechanics.................................................................................................................................. 32
CLASS ACTIONS ............................................................................................................................. 33
A.
i.
CLASS ACTION BASICS .......................................................................................................................... 33
Requirements of Class Action Representation: Rule 23(a) ........................................................ 33
1.
Haley v. Mestronic ................................................................................................................................ 33
ii.
Four Types of Class Actions: Rule 23(b) ..................................................................................... 33
B.
PROCEDURAL DOCTRINES RECONSIDERED ................................................................................................ 34
i.
Personal Jurisdiction .................................................................................................................. 34
1.
2.
ii.
Phillips Petroleum v. Shutts .................................................................................................................. 34
History: 1921-2005 ............................................................................................................................... 34
Preclusion .................................................................................................................................. 35
1.
iii.
Stehpenson v. Dow Chemical Co. .......................................................................................................... 35
Erie ............................................................................................................................................. 35
1.
Rhone-Poulenc Rorer ............................................................................................................................ 35
iv.
Trial ............................................................................................................................................ 35
C.
SETTLEMENT CLASS ACTIONS: RESOLVING WIDESPREAD DISPUTES WITHOUT ADVERSARY LITIGATION ................. 35
i.
Amchem Products v. Windsor .................................................................................................... 35
iv

Steps to understanding the Rules:
o Text – starting point
o Context & Structure – read rules in context of other rules and of their PP; interpret simply over
complexly
o Purpose/Intent – can be evidenced by Advisory Committee notes; interpret simply over
complexly
o Canons/Maxims – conventional rules for construing rule language – e.g. expressio unius est
exclusion alterius (the inclusion of one is the exclusion of others)
o Cases – for lower-level courts, can look to case law – but some are only persuasive, not binding
I. PLEADING
A. Rule 8: Pleading Requirements


Pleading used to be big trap for unwary – hyper-technical requirements. FRCP simplified the process –
now pleading need only contain:
o Short and plain statement of the grounds for the court’s jx;
o Short and plain statement of the claim showing that the pleader is entitled to relief; and
o Demand for relief sought.
o (And demand for jury trial if applicable.)
Some types of cases still have heightened pleading standards (fraud, etc.)
o PRO: Protects Ds from unnecessary litigation
o CON: Eliminates potentially good claims, makes it difficult to sue
B. The Complaint
i. Formal Sufficiency of the Complaint
1. Swierkiewicz v. Sorema (2002)



P sued former employer for age and nationality discrimination
Trial court dismissed based on Rule 12’s failure to state a claim on which relief can be granted – said
pleading was too circumstantial
Thomas used above Steps to determine that court must distinguish between burden at pleading stage and
burden at trial stage  burden at pleading stage very slight
2. Bell Atlantic v. Twombly (2007)


Seemed to heighten pleading requirements – we’re not sure yet
Several cases in 2007 seemingly went back on Swierkiewicz:
o Jones v. Bock – PLRA has exhaustion requirement; exhaustion usually treated as affirmative
defense; courts should not require P to plead exhaustion in complaint  unremarkable
o Erickson v. Pardus – prisoner’s allegations of deliberate indifference provided sufficient notice
where he alleged he was denied HepC treatment  unremarkable
o Tellabs – PSLRA explicitly requires higher pleading for class-action complaints alleging
securities fraud; heightened pleading required  unremarkable
o Bell Atlantic v. Twombly  this was only remarkable one
 P said alleged conspiracy violates Sherman Antitrust Act – made inference from known
facts that there was a conspiracy
 Case was dismissed for failure to state a claim
 Issue is whether complaint was sufficient – majority says no:
1


2 possible interpretations of the factual info but nothing to suggest it’s conspiracy
over non-conspiracy
 Plus this would be big, expensive anti-trust trial (suggesting such cases should get
tougher scrutiny at pleading stage
Criticisms of Twombly:
o How is it that circumstantial evidence is enough to send case to jury but not enough to get past
pleading stage? Even if recovery is unlikely, complaint is still valid under Rule 8
o But the Rules should be transubstantive – consistent across the board
 Unless you’re in Rule 9, which requires some matters to be pled specifically – but
employment discrimination is not among them  expressio unius principle: if not
included, it’s meant to be excluded
o It’s congress’s job to change pleading requirements if they want to, not the court’s – court
doesn’t get to change their interpretation of the Rules based on policy considerations
o Inconsistencies w/Swierkiewicz:
 Swierkiewicz said recovery could be remote and unlikely and still pass pleading stage –
this holding says entitlement to relief must be “plausible,” not just “possible”
 Court criticized Conley as being too liberal an interpretation of Rule 8, but same court
unanimously quoted it in Swierkiewicz for expressio unius principle. Court even
mentions Rule 9 as evidence of reading Rule 8 narrowly, implying it’s related to fraud –
but Rule 9 was quoted in Swierkiewicz for expressio unius principle
 Between 2002 and 2007 Roberts and Alito were added, but doesn’t explain why 7 others
switched sides
ii. Filing & Serving the Complaint


Clerk stamps summons + summons is served = complaint filed
Due process and service:
o Determined by what’s reasonable
o If you follow provisions of Rule 4, not many challenges (these pass constitutional muster)
o But state law provisions are often subject to constitutional attack – not provided by Rule 4
(supplementary to it)  see Jones below
1. Mullane v. Central Hanover Bank & Trust Co.


Ds publish notice in newspaper for all 113 beneficiaries, not all of whom live in NY; P argued personal
service required
Holding – Goldilocks scenario:
o Personal service is unreasonably burdensome (too hot)
o Publication is not reasonably calculated to reach those who could easily be informed by other
means at hand (too cold)
o Service by mail is reasonably calculated under all circumstances to apprise interested parties of
pendency of action and afford them opportunity to present objections (just right)
2. Rule 4: Service of Process

Steps/Elements:
o Complete summons
o Have clerk issue summons
o Serve Ds (methods of service, special rules for certain parties)
o Waiver of service
 You can waive service (best, cheapest way) complaint is mailed, receiving party
returns notice acknowledging receipt
o Proof of service
2

Harder to serve minors, mentally incompetent, a company, the government, foreign people, foreign
entities, etc.  special procedures for these
3. Rio v. RII




P was unable to serve D in FL (only address they had) – only had email for atty, who wouldn’t accept
service – so they asked court for special alternative rules of service – court said email service ok.
Default judgment entered against D – D then appealed method of service w/motion to dismiss under
Rule 12(b) insufficiency of service
o But fact that D showed up at all shows they were actually served
Issues on Rule 12(b) appeal (same judge as trial):
o Whether methods court came up with were ok (they were)
 Ds argue email wasn’t acceptable method of service – but court said since Ds didn’t have
physical address and said their preferred method of communication was email, it was ok
o Whether court properly applied R. 4 in coming up with the method (it did)
 Rule 4(e) says you can supplement federal methods of service with whatever state says is
ok (e.g. certified mail, publication in paper)
 Ds argue P should have exhausted all methods listed in Rule 4(e) before getting special
permission to email – but Rule doesn’t say this – Ps could use any one of them, no
hierarchy
BAD lawyering here: Ds evade process, show up to trial but say judge was wrong in allowing service,
then don’t cooperate in discovery
C. Responding to the Complaint

In response to complaint, D has 3 options: do nothing (dangerous), Rule 12 motion to dismiss, or answer
i. Rule 12 Motions
1. Lack of subject matter jx (always the threshold question)  can be raised in or after answer – rest
should be raised before answer (grounds for motion to dismiss should always be raised at beginning)
2. Lack of personal jx
3. Improper venue
4. Insufficient process (some defect in summons)
5. Insufficient service of process (Rio)
6. Failure to state a claim on which relief can be granted (Swierkiewicz)
7. Failure to join party under Rule 19
ii. Rule 8(b): The Answer


D must state defenses in short and plain terms
D must admit or deny allegations
o General denial: D in good faith denies all allegations of complaint
 Rarely used – almost always something you can admit to in good faith (e.g. place of
residence) – if there is and you file general denial, violates Rule 11
o Specific denial: D admits or denies each allegation in whole or in part
 Most common
o If D lacks sufficient info, he can so state and it’s treated as denial
o If D fails to deny any allegation where responsive pleading is required, it’s considered an
admission
1. Conley v. Gibson


Black RR workers claim union rep didn’t adequately represent them when they were fired based on race
Ds filed 12(b) motion to dismiss on 3 grounds:
3

o Subject matter jx
 SC said there was subject matter jx (lower court was wrong)
o Failure to state a claim
 But SC said complaint lacked this – required heightened pleading standards. This wasn’t
raised by Ds in first place, but rule says if lower court is right for any reason, even if not
the one the court relied on, then affirm.
o Failure to join a party
Result is workers got screwed
2. King Vision v. Dmitri Restaurant


In response to 30 of 35 allegations said could neither admit nor deny; demanded “direct proof”
Judge was fed up – sua sponte treated all 30 of these as admissions
o Usually judge would strike answer and order D to refile (or amend under Rule 15), possibly issue
sanction – this judge was particularly harsh
3. Carter v. US



P’s daughter paralyzed by spinal injury at naval hospital, awarded $3.4 million in economic damages,
$15.5 in non-economic damages
D argued $500k cap on non-economic damages – P says this was affirmative defense and should have
been pleaded in answer
Judge doesn’t address whether it was affirmative defense or not – says since no harm was done to D by
this (not a surprise, didn’t affect their strategy) it doesn’t matter
o But this implies Rule 8 doesn’t matter – more typical way for judge to resolve would be to let D
amend answer
o Rule 8 doesn’t list caps on damages as affirmative defense
 Old Rules had catch-all provision (“and any other matter constituting an avoidance or
affirmative defense”), so probably ok
 New Rules don’t say this – but lists affirmative defenses as “including” those mentioned
– two ways to interpret:
 Exhaustive list and catch-all provision no longer valid (expressio unius); OR
 “Including” means “not limited to”  others not listed ok (this is probably the
correct interpretation – the recent changes were meant to be stylistic only)
D. Amending the Pleadings
i. Rule 15(a): Amendment as a Matter of Course


Liberal rules for amending pleadings (PP to resolve cases on merits):
o Can amend early as a matter of course (one time)
 Early stages
 Before being served a responsive pleading, or
 W/in 20 days of serving the pleading if responsive pleading is not allowed and
action is not yet on trial calendar.
o Later stages: w/opposing party’s written consent or the court’s leave (court should freely give
leave when justice so requires)
Easier to amend complaint than answer
1. Robinson v. Sappington


D’s answer didn’t contain affirmative defense he now wants to assert – so does he lose it forever?
D moved for summary judgment based on this affirmative defense
4



P objects, but since it was months before trial, P was on notice about the defense (she also found out
about it in discovery)
Court grants summary judgment – doesn’t allow traps of pleading to prevent D from raising his defense,
as long as no prejudice to P (which there wasn’t)
o Underlying idea of Rules – allow cases to be resolved on the merits
Appellate court got case on abuse of discretion standard – found none
2. “Relates Back” Theory & Tran v. Alphonse Hotel Corp.


“Relates back” principle
o Only arises when SOL has run on interim between filing initial complaint and the amendment
o Can be in regards to the theory, or to the D (used right theory but sued wrong guy)
Tran v. Alphonse Hotel Corp.
o P didn’t plead RICO violation originally because he didn’t know reason he was underpaid was
because of RICO violations (bribery)
o Trial court found for P for $600k under both FLSA and RICO claims
o Issue on appeal is whether RICO claim “relates back” – abuse of discretion standard
 Could argue there was no unfair surprise to Ds since they knew they were bribing
E. Policing Pleadings & Motions
i. Rule 11: Sanctions



Applicability:
o Any pleading, motion, or other paper submitted or advocated in court (but not discovery)
Standards (split between 1st and 2nd Districts on this):
o Generally: Objective reasonableness
o Exception: Judge-initiated sanction has subjective standard
Procedure:
o Party-initiated
 Service (not filed in court), and
 21-day safe harbor (21 days to correct before court gets informed by Rule 11 motion
o Judge-initiated: Opportunity to show cause why sanction should not be imposed
1. Patsy’s v. IOB Realty & In re Pennie& Edmonds LLP


Patsy’s v. IOB
o P manufactured evidence to prove they’d been marketing spaghetti sauce under their name for
longer than they did
o Lawyers claim they acted in good faith – but pretty clear they should have known
o Trial judge said he believed they acted in good faith, but were objectively unreasonable 
sanctioned firm
In re Pennie & Edmonds LLP
o Reversed sanction – since trial judge believed they acted in good faith, didn’t meet the subjective
standard
 One judge dissented – thought judges should have reign to do this
 2 decisions since have gone other way (1st and 5th Circuits) – said (objective)
reasonableness is standard  USSC must resolve jx split
2. Fantz v. US Powerlifting Federation


P weightlifters filed suit against Fed for monopolizing market
P’s lawyer should have known basis for P’s argument was already resolved in prior case (CEO can’t
conspire w/his own company)
5




In Patsy’s attys didn’t vet facts properly – here attys didn’t analyze law properly
D demanded $4k for 40 hours of atty fees – judge said if it took them 40 hours to figure out the issue
was not as frivolous as it seemed (accused attys of greediness)
Issues on appeal:
o Whether there was Rule 11 violation (yes)
o Whether sanctions were required
 Court said 40 hours wasn’t so preposterous – but $ should go to court for wasting its
time, not to other attys
Distinction between Rules 8 and 11  meeting Rule 8 short and plain statement requirement doesn’t
satisfy Rule 11 if facts are insubstantial/fraudulent – must do reasonable research into applicable law
3. No Rule 11 Violation for Valid Challenge to Precedent



If you have good argument for reversal or modification of common law precedent then ok – just can’t be
frivolous
What will happen:
o P files complaint w/o legal theories in it – just facts
o D will file Motion to Dismiss and Rule 11 Motion for Sanction
o P then must say why theory is distinguishable from precedent – can make written and oral
arguments
o Judge may grant dismissal but should NOT sanction for making novel arg
If other side doesn’t raise valid motion to dismiss, you should still point it out – court will find out
anyway and you’ll look dishonest
II. PERSONAL JURISDICTION & VENUE

Bases of jx:
o In rem: action against property itself to resolve disputes about it  maximum amount at risk is
property in question
 Example: Disputed ownership about land
o Quasi in rem: action where property is attached for some other reason (property may be
unrelated to suit – P is worried D will flee w/assets)  property used as collateral (but max amt
at risk is still property itself)
 Fiction is by attaching you place D on notice of lawsuit – people know what’s going on
w/their property (not always true – see Pennoyer)
o In personam: no particular property attached – P can get anything – most risky for Ds since
unlimited liability potential
A. Pennoyer v. Neff






Example of how jx was originally determined by bright-line rules w/discreet boundaries (must be
physically present in state to be served) – this later changes (now you can make a phone call and be
subject to jx)
Mitchell sues Neff who is out-of-state, serves him via publishing in local paper
Mitchell wins by default when Neff doesn’t show up, gets Neff’s property, sells it to Pennoyer  Neff
returns and wants property back
Issues:
o Was personal service satisfied?
o Does court have jx?
P didn’t attach property beforehand, so only way to win is to show personal jx
To satisfy due process, state courts can only exercise personal jx where:
6


o D is resident of state;
o D is served with process while in state; or
o D voluntarily appears in court and consents.
Rationale:
o Federalism  states are only sovereign in their own territory
o Due process  unfair burden to Ds to have to defend from afar
None of these were met here, so no personal jx – federal court slapped state court down for overasserting jx for in-state P
B. Applying Minimum Contacts


Specific jx: cause of action arises out of contacts between D and state
General jx: cause of action is unrelated to contacts between D and state
i. Statutory Authority: State “Long-Arm” Statutes


States want to protect their citizens and provide forum for redress
2-step process in analyzing personal jx question:
1. Look to long-arm statute of state – if this doesn’t assert jx you don’t even go to next step (most
states have expansive long-arm statutes)
2. Does it satisfy due process?
ii. Constitutional Authority: Minimum Contacts


Uniform Acts §1.03: Personal Jx Based on Conduct – personal jx when:
o Transacting business in state
o Contracting to supply services or things in state
o Causing tortious injury by act or omission in state
o Causing tortious injury in state by act or omission outside state
o Having interest in, using, or possessing real property in state
o Contracting to insure any person, property, or risk located within state at time of contracting
Courts in all the following cases and Pennoyer looked at two bases:
o State sovereignty vs. not intruding on other states’ sovereignty
o Defendant’s rights
1. International Shoe Co. v. Washington





Demonstrates shift from Pennoyer’s bright-line rule to huge, elastic concepts  this case sets the
standard for minimum contacts (though our notions of what’s fair have changed over time as we’ve
become more mobile)
Specific jx b/c issue being litigated rose directly out of activities IS engaged in (i.e. hiring salesmen) 
sets up guidelines for later cases
IS had salesmen in WA, but otherwise no business. WA wanted unemployment taxes from IS – IS
claimed WA had no jx for this (Pennoyer).
USSC establishes new minimum contacts rule  if D isn’t present in state where suit is initiated, they
must have certain minimum contacts:
o “[D]ue process requires only that in order to subject a D to a judgment in personam, if he be not
present within the territory of the forum, he have certain minimum contacts with it such that the
maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
Case allowed to go forward – USSC reasons if IS wants to do business in WA, it must pay WA’s taxes
2. McGee v. International Life Insurance

Californian purchased life insurance in AZ to cover Californian
7



AZ company taken over by TX company, who mailed certificate of reinsurance to policy holder (PH
continued paying premiums)
PH dies, insurance company refuses to pay – PH sues, company says they don’t have to come to CA
Issues:
o Is this within the long-arm statute?
 Per Uniform Acts, yes (last criteria)
o Does it satisfy due process? Is one isolated insurance policy in CA sufficient?
 Company didn’t solicit the business, but did voluntarily continue it – USSC said this was
enough to give CA personal jx
 Also transaction being litigated is exactly the policy that provides basis for jx
3. Hanson v. Denckla




Daughters sue in FL to bar grandchildren from claiming $ from will; grandchildren sue in DE to get
their $. Each state applies its own law.
Issue: Did FL have jx? Court says no:
o Just because gma changed her trust while living in FL, no FL jx.
Not very distinguishable from McGee – majority claims distinction is that here trustor initiated
transaction whereas in McGee the insurance company did  but most scholars not persuaded by this
Moral of story: hard to predict how courts will come out.
4. Worldwide Volkswagon v. Woodson



Ps bought car in NY and got in accident in OK – defect in car caused fire that burned mom and kids
P sued regional distributor, retailer, importer, and manufacturer – distributor and retailer challenge jx
(last two covered under general jx)
Court says since retailer and distributor only did business in/around NY, there was NOT sufficient
minimum contacts w/OK to support jx (rejects stream of commerce argument – requires more for jx);
also says foreseeability of product traveling to another state is a factor, but not in itself sufficient to
support jx
o Brennan dissent:
 What if car had hit OK family? States must maintain sovereign interest in providing
remedy to residents
 Mobile nature of cars extends jx anywhere cars might go
5. Asahi Metal Industry Co. v. Superior Court




CA motorcyclist P has accident due to defective tire
P sues tire manufacturer in CA – this settles but tire manufacturer sues Asian manufacturer of tire tube
(Asahi)
Asahi argues lack of jx – trial court rejects: if you make international parts, it’s foreseeable they’ll end
up in the US somehow, even if you don’t sell directly
USSC reverses:
o Section IIA: O’Connor rejects stream of commerce as sufficient minimum contacts – D must do
something affirmative to conduct business in the state for jx to extend (i.e. selling to one party
who you know will sell to US doesn’t qualify)
 But this didn’t command majority – only 4 justices
 Suggests even P couldn’t have sued them
o Section IIB: Requirement of fair play and substantial justice is not met – multi-factored analysis
shows significant burden on D which is not justified by sufficient interest of the P or forum state
(CA resident no longer party to suit, so CA no longer has interest in suit)
8



But what if P sued Asahi directly or hadn’t yet settled? Does jx change over course of
lawsuit?
 8 justices agreed w/this – are they really rejecting IIA, or do they just not want 2-part
test? Many judges think IIB’s fair play and substantial justice is the only issue – can be
determined by minimum contacts but both prongs need not be met independently (this
would allow P to sue)
Debate over whether IIA and IIB are separate requirements, or if IIA’s minimum contacts is subquestion to IIB’s larger question of fair play and justice
No idea how court would rule today – 7 different justices
6. E-Tailers: Zippo Manufacturing Co. v. Zippo Dot Com, Inc.
 Trademark dispute over internet domain name
 3k PA subscribers to internet subscription service (2% of company’s subscribers)
 Conduct 2-part inquiry to determine jx:
o State’s long-arm statute
o Due process – two extremes:
 If you’re doing business in state (via internet, phone, etc.), you have purposefully availed
yourself of privilege of doing business there and are subject to jx
 Informational website that is passive only (not interactive – just posting info) is not
subjected to jx
 This one is in the middle (they sold passwords and had subcontractors in PA)  court ruled requirement
for specific jx is met
o So cases in middle ground are fact-sensitive – broad parameters, must argue by analogy to other
cases  common law decision making
7. Other Cases



Keeton – court found jx because Hustler sold 10k magazines to subscribers in NJ
Burger King – court found jx because Ds entered into franchise agreement in FL
Calder – court found jx even though D never even went to CA because D wrote about P who lived in
CA and made $ on the article (so now you only have to pick up the phone to be subjected to jx)
C. Beyond Minimum Contacts: Other Bases for Jurisdiction






Residency
Present and served in jx (even if just passing through)
Consent (if you don’t object to service you’ve submitted yourself to jx; if you sign K w/forum selection
clause - Carnival)
Commercial provisions providing for jx
Minimal contacts give rise to specific jx
Minimal and repeated contacts give rise to general jx
i. General Jurisdiction


D’s contacts w/state must be continuous and systematic
Courts more lenient w/specific than general jx – test is same (sufficient contacts to satisfy fair play and
justice, etc.), but what satisfies test is different (need more for general than specific)
1. Bird v. Parsons



Trademark dispute over internet domain name
D files 12(b) motion for lack of personal jx; court grants
Issue on appeal is whether there are sufficient contacts for either general or specific jx
9




Not clear that anyone D did business with lived in OH, but P tallies their total customers and divides by
50 to “find” 4,666 OH customers (shady)
2 extreme cases cited:
o Helicopteros – occasional presence, sending of employees, buying stuff  NOT sufficient for
general jx (though maybe for specific)
o Perkins – permanent office, physically there doing business, bank accounts  general jx ok
Court says this is more like Helicopteros – occasional, sporadic contacts, and if lawsuit arises out of
these contacts then ok under specific jx (but not general)
So question becomes whether relationship between D’s conduct in-state and the lawsuit is sufficient for
court to exercise jx?
o Court says yes – trademark infringement happened in-state via website
ii. “Presence”: Service in the Forum State

Sometimes if “visit” to state is very fleeting, doesn’t seem right (e.g. on airplane)
1. Burnham v. Superior Court


P’s husband challenged CA’s jx over him when he was personally served while in state on business and
visiting kids
USSC said there was jx – physical presence + service has always been enough, back to Pennoyer and
beyond
iii. Consent & Contract


Consent:
o If D shows up and starts litigating, he’s consented – if you want to challenge jx, must do so at
beginning (special appearance)
o If D doesn’t show up to challenge jx and default judgment is entered, you can challenge jx in
your state – but if you lose you don’t ever get to try case on its merits  big risk
Contract: If parties agree to have forum selection clause in K, they’re stuck with it
1. Carnival Cruise Line v. Shute



P injured herself on cruise; form K on ticket said litigation must happen in FL
P files in WA, wins case; D appeals jx and wins
Court notes benefits to forum selection clauses:
o Clarifies where forums will be, saves litigation time and expense
o Savings passed on to customers
D. The Requirement of Notice


Classic method is process server – but expensive and rude
Due process notice requirement – must be reasonably calculated to apprise parties of pendency of action
and afford them opportunity to respond – provided for in:
o Rule 4 – if P complies w/Rule 4, it’s constitutionally sufficient
o Rule 4 supplemented by state procedures, some of which are constitutionally questionable 
how disputes arise – to determine if DP is met, consider:
 Info P had
 Steps P took
 Available alternatives, and their burden on P
i. Jones v. Flowers

Example of state’s service process not passing constitutional muster
10




P paid 30-year mortgage off; mortgage company had always paid property taxes, so P didn’t know to do
himself. P didn’t live there anymore.
Tax commissioner sends notice via certified mail that house will be seized – not delivered
(commissioner had actual notice it was not served).
Trial court granted summary judgment for state; ARSC affirms (state courts usually uphold state
procedures/rules)
USSC reversed – held state had to do more than certified mail to satisfy due process for service.
o Cases state relied on were distinguishable b/c state didn’t know people didn’t get service in those
– here state KNEW he didn’t receive service
o Suggested state should have either sent regular mail (easier – no signature required) or posted
notice on door.
o Rationale: weighty interest of property owner (his house) vs. small burden on tax commissioner
E. Personal Jurisdiction in Federal Court

If personal jx is met for state court, it’s generally met for federal court as well (minor exceptions)
F. Venue

Question not of whether there’s jx, but whether for purposes of fairness to D case ought to be tried
somewhere more limited than suggested by jx
i. Original Venue

District courts venue (handout w/problems)
o §1391(a). Diversity jx only:
 Where any D resides if all Ds reside in same state;
 Where a substantial part of events occurred or property is located; or
 Where any D is subject to personal jx when the action is commenced if there is nowhere
the action may otherwise be brought.
o §1391(b). Federal question jx:
 Where any D resides if all Ds reside in same state;
 Where a substantial part of events occurred or property is situated; or
 Where any D may be found if there is nowhere the action may otherwise be brought.
 This suggests wherever D is – different from diversity jx rule – could find D
anywhere, even if it has nothing to do w/case
 But many courts nonetheless interpret the provisions as identical, requiring
personal jx in federal question jx as well
 No agreement on why provisions are different or how they should be interpreted,
if differently – prof thinks this is screwy – requirement of personal jx shouldn’t be
imposed on federal question jx
ii. Change of Venue


§1406(a) Improper Venue (i.e. you didn’t comply w/above requirements)
o District court may dismiss the action
o District court may transfer it to a district where it could have been brought (matters for SOL –
stops tolling when you file case – if it’s transferred, statute is considered as having run
throughout)
 Transferee court has jx
 Transferee court is proper venue
§1404 Inconvenient Venue (liberalized rule of common law rule of forum non conveniens – court has
choice of keeping or not – discretionary)
11
o District court may transfer the action to another district for the convenience of parties and
witnesses and in interest of justice
o No set formula – multiple factors to consider:
1. Convenience of parties and witnesses
2. Locus of facts
3. Court’s familiarity with the law (e.g. if state court thinks another state’s law will apply)
4. Efficiency and justice
i. Forum Non Conveniens: Piper Aircraft v. Reyno



FNC: grandfatherly principle we still have even though we have statutes of venue now – those don’t
displace this – so even if you meet statute requirements where district court DOESN’T have to dismiss
you, still possibility that court will dismiss if it’s really inconvenient
Plane crash in Scotland; P sues in PA – court says Scotland most appropriate venue
Not based on §1404 – based on forum non conveniens:
o Private interest factors (parties)
 Ease of access to proof
 Compulsory process
 Cost of producing witnesses
 Possibility of viewing site
 Other factors relating to ease, expense, efficiency
o Public interest factors (court, taxpayers)
 Administrative difficulty
 Local interest in local issues – no American Ps here
 Court’s familiarity with law
 Avoidance of conflicts of law
 Unfair burden on jury
III. SUBJECT MATTER JURISDICTION
A. Federal Question Jurisdiction


Federal case brought in state court can be removed to federal court – but vice versa not true (can’t
remove from federal to state if valid federal jx)
Why are federal courts sometimes better? (Take with grain of salt):
o State courts may be hostile to federal law (integration, environmental reform, etc.)
o Uniformity in interpreting federal law
o Parties and public benefit
o Some sense that federal judges are superior
o Less regional bias (but often federal and state courthouses in same city)
i. The “Well-Pleaded Complaint” Rule


WPCR: P’s statement of his own claim just shows it’s based on federal laws or C
“[A] suit arises under the C and laws of the US only when the P’s statement of his own cause of action
shows that it is based upon those laws or that C.”
1. Louisville & Nashville RR Co. v. Mottley


Ps injured on train due to negligence – RR gives them free rides for life as settlement but eventually
stops performance claiming congress passed statute making it illegal
P sues for specific performance in federal court
12

Court doesn’t examine merits – says no subject matter jx (doesn’t matter that wasn’t raise in trial – this
kicks you out no matter what):
o No diversity, and
o No federal question – Ds claimed they were going to raise defense of federal statute, but USSC
said must be raised in complaint to qualify – can’t be element of defense (anticipated or
otherwise)
 “It is not enough that the P alleges that some anticipated defense to his cause of action
and asserts that the defense is invalidated by some provision of the C”
ii. Sufficiency of the Federal Question



(Handout w/problems)
What happens when state law pulls in federal issue – sufficient? JX SPLIT – 3 positions:
1. Bright-line test – federal question jx whenever federal statute creates the cause of action and no
other time (Brennan’s dissent in Merrell Dow) – i.e. when federal question is central to claim –
state law pulling in federal law didn’t pass muster
2. Sometimes federal jx even when it doesn’t arise from federal statute – depends if congress
mandated private cause of action could arise from law (majority in Merrell Dow)
3. Case-by-case
Not clear how current court would rule
1. Merrell Dow





NO federal question jx where state tort action for negligence per se was based on a violation of
FDCA; federal issue “insufficiently ‘substantial’”
Ps sued pharmaceutical company for misbranding drug that caused birth defects – filed in OH based on
OH negligence per se law which borrowed from federal law
Ds removed claiming state law pulls in federal statute, and their liability depends on interpretation of the
federal law
Court of appeals reversed the removal; USSC upheld:
o Congress didn’t intend federal remedy for violation of that statute
o State court is more interested in outcome than federal
Brennan’s dissent:
o If a necessary part of action is interpretation and application of federal statute, then federal
question jx should be allowed
o Potential for inconsistent interpretations of federal law
o Federal courts should be guardians of federal law
2. Graber




YES federal question jx where state quiet title claim is based on application of federal tax
foreclosure statute; federal issue is substantial indicating serious federal interest in federal forum
P didn’t pay taxes; property seized and sold to D
P sues in state court b/c IRS didn’t give him personal service; D removes to federal court based on
interpretation of federal statute
Under Merrell it would be state action – but court here says federal jx ok:
o Merrell not meant to be bright-line rule
o Federal question at issue must merely be “substantial” (how to determine what’s substantial?) –
here federal tax law is sufficient – federal courts care more about interpretation than state courts
o Flood gates less of a problem here than in Merrell
13
B. Diversity Jurisdiction

Requirements:
o Parties must be of different states
o Amount in dispute must > $75k
i. Diversity of Citizenship
a. The Complete Diversity Rule
 No one P and one D can have citizenship in common
 EXCEPTION: Class Action Fairness Act
b. Determining Citizenship
 People
o Two-part test for domicile (Sheehan v. Gustafson):
 Presence in state, and
 Intention to remain there indefinitely
 Test of domicile is date you filed complaint  could move before lawsuit and
attempt to convince court you intend to stay in new place
 Some courts inquire about intent to leave, but most about intent to stay
 Unless you establish new domicile, you’re stuck w/old – even if you intend to
leave
 Corporations
o Two alternative tests determine corporation’s principle place of business (Peterson v. Cooley):
 Nerve center test: Where is the home office? Where do officers direct, control, and
manage corporation’s activities? (Brain)
 Place of operations test: Where does the bulk of the corporate activity take place? (Braun)
 Neither: Trade associations, partnerships, etc.  not as common as first two
ii. Amount in Controversy



Must exceed $75k
Generally court accepts complaint’s allegation of damages
If claim is not monetary (i.e. injunctive relief), courts split when determining if it approximates the
minimum amount – look either to:
o Benefit to P
o Cost to D
o Either
1. Del Vecchio v. Conseco



Both P and D want suit in federal court
On appeal, court throws case out of federal court b/c P’s claim < $75k
o Jx denied if it appears “to a legal certainty” that P can’t recover minimum amount; burden on
party seeking federal jx to show requirements are met
 But here it wasn’t legal certainty  courts should take pleading at face value – if P
claims damages > $75k then give him benefit of doubt. Here it was remote, but not a
legal certainty.
 (Appellate court prob annoyed at D for changing theories)
Subject matter jx never goes away – doesn’t matter if this wasn’t raised at trial
o Mild hostility to diversity actions: federal courts don’t like taking on cases dealing w/state law
14
2. Aggregation Rule
1. A single P can aggregate against a single D as many claims as she has – even unrelated ones
o Example: Breach of K leads to fistfight – K claim is unrelated to tort action – but if they have
diversity, K damages = $50k and tort claim is $30k  federal diversity jx is satisfied
2. A single P can aggregate claims against multiple Ds if they are jointly liable
o Example: Multiple-car crash – P can aggregate claims against all drivers
3. Multiple Ps CANNOT aggregate claims against a single D (i.e. no class action suits for individual
claims < $75k)  look to who has interest in $ - unless it’s like partnership or marriage, can’t aggregate
multiple Ps
o Example: victims of plane crash can’t aggregate
o Exception: Multiple Ps can aggregate claims only if they suffer a single indivisible harm or have
a common undivided interest (rare)
 Example: Married couples that have single, indivisible interest in house – if D sets fire
and causes > $75k, couple can sue (i.e. they don’t each have 50% interest – under joint
ownership they each have 100% of claim)
C. Supplemental Jurisdiction
i.
Under Federal Question Jurisdiction

If valid federal question is involved and same facts are at issue, state claims can “piggyback” at court’s
discretion
o Example: Dispute between arrestee and cop of same state; arrestee sues over civil rights violation
AND tort battery
 Same facts  you can bring both claims under one suit (state tort claim piggybacks on
federal claim)
 D offers affirmative defense of self-defense (state law)  ok
 D brings battery action against P  also ok
1. United Mine Workers of America v. Gibbs



ii.



P sued in federal court based on state and federal claims
Question on appeal is whether federal court had jx in first place (if your basis for federal jx is shaky, it’s
risky to sue there – could be sent back to state court to start all over)
Appellate court upheld federal jx:
o Both state and federal claims arose out of same issue
 (If federal claim was dismissed, though, federal court should send back to state court
unless close to trial)
Under Diversity Jurisdiction
Supplemental jx is expansion of what would otherwise be pretty confining diversity rules
Already hostility to diversity actions – should we expand to allow for supplemental jx? For additional
parties? Under §1367:
o Should supplemental jx apply to both federal question and diversity jx? YES.
o Should supplemental jx apply to cases where you bring in additional parties w/o federal claims?
YES.
§1367. Supplemental Jx
a) Creates supplemental jx in all cases where district court has original jx where claims are so
related that they form part of the same case and controversy under Article III [can’t be factually
unrelated – must be “same set of operative facts”];
b) Carves out some exceptions for diversity cases;
15


District court shall NOT have supplemental jx for Ps against parties who fall under Rule
20 (see Stromberg)
c) Specifies facts suggesting that district court should decline to exercise supplemental jx;
d) Extends periods of limitations to save dismissed claims asserted under subsection (a) [so if
federal court dismisses after statute of limitations has run, you can still file in state court]
Interpleader will not destroy diversity just b/c party being interpleaded lives in same state as P
1. Stromberg Metal Works v. Press Mechanical




Plain meaning of text of statute  no supplemental jx against Rule 20 Ds (little Ds can’t tag
along), but ok for Rule 20 Ds (little Ps can tag along) (WHAT COURTS SIDE WITH NOW)
Same case and controversy, complete diversity; P1’s claim = $425k, P2’s claim = $27k
Trial court said P2’s claim couldn’t piggyback – threw them out of court – P1 went on to win case
§1367(b) – this is case brought by party under Rule 20 (party seeking permissive joinder), not against –
does the exception apply?
o Appellate court takes plain meaning of §1367(b) – if it works in favor of the joining party rather
than against, then ok  §1367(b) applies to permissive joinder of Ds, not Ps
o So §1367(b) exceptions do not apply here
2. Meritcare Inc. v. St. Paul Mercury Insurance Co.







NO LONGER GOOD LAW: Court ruled opposite of Stromberg  just b/c statute says that
doesn’t mean that was the intent – said ALL Rule 20 cases excluded from supplemental jx
Both Ps suffer same harm by roof damage at nursing home; D insurance company refuses to pay
Pure diversity; P1> $75k; P2 < $5k; Ps sue in state court; D removes to federal court on diversity
Meets §1367(a) – arises out of same set of facts
Doesn’t meet §1367(b) – allowing small claims w/less than min would limit access by bigger cases
Persuasive as far as legislative history – what did congress want to do?
o Appears congress wanted to expand but not as much as Stromberg
Not as persuasive w/actual language of statute  what to do when legislative intent/PP conflict
w/language? Unresolved  5th and 7th Circuits follow Stromberg; 10th follows Meritcare
D. Removal Jurisdiction & Procedure



If D files valid removal in state court it gets removed automatically – up to P to convince federal court it
should be remanded back to state court
§1441 Removal
o Actions brought in state court can be removed to federal court which has original jx;
o In federal question cases, citizenship or residence is irrelevant. Diversity cases are only
removable where none of Ds is citizen of the state where action is brought;
o When federal question jx is satisfied, district court can exercise supplemental jx over state
claims;
o District court may exercise jx even though state court did not have jx.
Ds cannot remove to federal court if P sues in D’s home state  purpose of rule is to protect D against
potential discrimination – if he’s sued in home state, no worries (prof doesn’t agree – if P could have
filed in federal, D should be able to remove)
i. Ritchey v. Upjohn Drug Co.


P sues in CA court; D removes to federal court – argues complete diversity b/c other CA Ds were
exempt by SOL (weren’t served for 2 years after filing)
P challenges successfully
o D didn’t remove in time to beat SOL
16



ii.




But this only applies if it’s not clear until later that grounds for removal exist – here SOL
didn’t start running until they were served (PP designed to keep cases from getting too far
along and then getting removed)
Morals:
o 2 time limits for filing notice of removal:
 Where initial pleading discloses either diversity or federal question jx  D can remove to
federal court w/in 30 days (most common)
 Where initial pleading DOESN’T disclose to D that there’s federal question jx (claim
gets added later)  must only act w/in 30 days of amended pleading (more complicated)
 Exception: Bright-line rule that diversity cases have time limit of one year from
initial filing  when pleading was amended or even whether there was amended
pleading at all is irrelevant (courts more stingy w/diversity)
o Example: No federal question; P files against D1, then against D2 one
year later (diversity) – D2 can’t get to federal court
o Rationale: Since diversity cases are state law, don’t want to dump mature
state case on federal courts
o Ps can’t destroy diversity by adding sham Ds w/same residence as P
Prof likes result but not rationale – would it be the same case and controversy if all Ds wanted to be in
federal court? Probably.
Lanford v. Prince George’s County
P was passenger in car chase w/cops; cops threw him to ground and broke his neck, ignored his pleas for
help
P sued county authorities (federal civil rights and state tort claims) and driver (state tort claims) in state
court
Authorities want to remove to federal court but P and other D don’t
o If it was supplemental jx and all Ds were under same claim, all would have to agree to removal;
if not part of same claim, can be split up (send Ds to federal court, keep driver D in state)
Court rules car chase and injury arose from separate facts, therefore separate claims
o Prof thinks this was arbitrary distinction – court just wanted Ds to have federal jx
IV. STATE LAW IN FEDERAL COURTS (THE ERIE
DOCTRINE)

When hearing diversity case, what law does federal court apply? Federal procedural rules, but what
about substantive?
A. Perspectives on Erie
i. Swift v. Tyson: “Law” Only Means Statutes



P sues D in federal court (diversity) over bad check
Question is whether federal court can use state law or “general” common law
o But there is no “general” common law  so outcome-determinative (federal vs. state law)
Court went with general law:
o “Law” only means statutes, not common law
o Court doesn’t apply NY state law b/c they want to deter forum shopping
17
ii. Erie RR v. Tompkins: “Law” Means Statutes & Common Law






Overrules Swift – by this time, people knew Swift led to inconsistent results and forum shopping – holds
that federal courts hearing diversity cases should apply same substantive law that state courts hearing the
state law claim would apply
o Where FRCP apply, presumptively procedural and does not affect substantive rights
o Where FRCP doesn’t apply, state law should be applied if federal law would be outcomedeterminative in sense that it would likely cause forum shopping or inequitable administration of
law
New “Erie Doctrine” applies to both diversity and supplemental jx claims – ANY state law claim
that ends up in federal court shall apply same substantive law that state courts would
T (PA) sues E (NY) under negligence in federal court under diversity
PA state law has low standard of duty  outcome determinative
Under Swift, “general” common law applies – court departed from Swift, said state “laws” include not
only statutes but judge-made common law, as well – rationale:
1. Equity: No disparity in result based on federal vs. state court – state law applies to both
(otherwise only some people get benefit of state laws)
2. Federalism: federal judges shouldn’t be determining state laws
Dissent: Veering too far into constitutional doctrine – should just strike down Swift’s rule that laws only
= statutes
iii. “Reverse” Erie Problem

Federal substantive issue being heard in state court – happens all the time – follow state procedure but
federal substance (face same question of substance vs. procedure)
B. Developing & Applying Erie in the Procedural Context

PROBLEM W/ERIE: Now must make distinction between what is procedural and what is substantive?
i. Guaranty Trust v. NY

Here court says question to ask is not whether issue is substantive vs. procedural, but rather if it is
outcome-determinative (here it is)  if it is, probably substantive
STILL GOOD LAW (important for CA because SOLs are short)
Case seeking equitable remedy  USSC indicated in dicta that question of remedy was procedural, not
substantive
P claims Doe Ds are procedural, not substantive
o Doe Defendant Practice:
 Can add nameless Ds to suit – as P discovers identities in discovery, can add them in 
allows SOL to be stopped when action is filed even though you don’t know who they are
 No Doe D practice in FRCP (no federal SOL) – federal law borrows from state’s SOL – so
federal civil rights actions in CA use CA SOL



ii.
Ragan v. Merchants Transfer





Court again uses outcome-determinative as test for determining whether substantive or
procedural
KS law said SOL was 2 years – depending on whether KS or federal law applies (KS law said SOL
tolled when filed, federal law says keeps running until service), service may have been outside SOL
District court said KS law applies, ruled for P
USSC affirms this:
o SOL is substantive (overly-simplistic)
Dissent:
18

iii.
o This is what FRCP were designed to do – PP of FRCP was to simplify federal court, facilitate
administration of justice
Not “procedural” just because mentioned in federal rule
Hanna v. Plumer (Modern Approach)







iv.
Pretty much how we approach cases today
2-part approach to determine whether to apply state law under Erie:
1. Where FRCP applies, it’s presumptively procedural, and does NOT impermissibly affect
substantive rights
2. Where NO FRCP applies, state law should be applied IF federal law would be outcomedeterminative in the sense that it would probably cause forum shopping or inequity (this is
the tougher call)
3. (If obviously a substantive issue, go w/state law)
Diversity case; P sues in federal court in D’s state
Federal law (Rule 4) said ok to serve wife; state law required personal service
USSC held state law was procedural (rejects outcome-determinative test)
o Rules of service wouldn’t affect forum shopping  if PP of Erie would best be served by going
one way over another, do that
Concurrence:
o Federalism dictates we apply state substantive laws;
o Look to what governed pre-lawsuit conduct – since here the issue is service and not the merits of
the case, apply federal rules.
Pre-Hanna, courts tended to use state law – now presumption is opposite usually
Walker v. Armco Steel Corp.





Similar facts to Ragan – D moves to dismiss on SOL grounds
Trial court applied Ragan, grants dismissal – said SOL was substantive (outcome- determinative), so
state law should apply; appellate court affirms
Issue for USSC: Does Hanna overrule Ragan?
Majority:
o First condition of Hanna not met – FRCP doesn’t say SOL tolled at filing
 Only says “when action is commenced” – so no conflict between state and federal rules
(if there was, Hanna would apply)
o This could lead to forum shopping, would result in inequity
o W/o conflict and w/forum shopping/inequity as issues, courts will usually see issue as
substantive and therefore apply state law
Still doesn’t get us away from substantive/procedural problem
Gasperini v. Center for Humanities (aka “Ginsberg’s Folly”)
v.




“Classification of a law as ‘substantive’ or ‘procedural’ for Erie purposes is sometimes a challenging
endeavor.” –J. Ginsberg– Understatement of the Century
Issue over judge’s scrutiny over jury verdicts – NY gave judges more than fed law
USSC said trial court should apply NY standard; court of appeals should apply federal (so depending on
whether filing in state or federal court, very different results) – WTF?? Rationale:
o 7th Am. can’t apply NY law – so split it up between trial and appellate courts (7th Am: “[N]o fact
tried by a jury, shall be otherwise re-examined in any Court of the US, than according to the
rules of common law.”)
 Basically appeals are governed by C (federal law); trials by state
Scalia’s Dissent (he’s right for once, new court would probably go with):
19
o 7th Am. doesn’t apply – Rule 59 applies (standard is just abuse of discretion), therefore per
Hanna, federal law applies
o Inconsistent to have one rule for trial court and another for appellate
C. Ascertaining the Content of State Law


Once you determine you apply state law, must figure out what state law IS – if not clear, must make an
“Erie guess” (i.e. “What would state law most likely be?”)
If judge gets it wrong, state is in no way bound by the holding – state courts are final authority on state
law – even lowliest trial court could disregard
o Federal courts can ask state SCs how they would rule, but state SCs usually don’t answer
i. Webber v. Sobba

Judge looked for AR law, couldn’t find anything  looked to Restatement, sister states, concluded AR
would follow those
V.DISCOVERY
A. Mechanics


Basic chronological order (might want to deviate sometimes):
o Mandatory initial disclosure (Rule 26(a)) – fairly new: requires both sides to say what evidence
supports their case, damages, and insurance
o Interrogatories: written questions asking who else has info, where docs/witnesses are, etc.
o Requests for production: after you get responses to interrogatories, must get the actual docs,
interview people, etc.
o Depositions (oral and written) – very expensive
o Physical and mental exams (if applicable)
o Request for admissions: if people admit things, no need to deal w/at trial
o Motions to compel and sanctions (can happen anytime in process, if needed): if other side isn’t
forthcoming, engaging in discovery abuse – Rule 11 applies but there’s also separate discovery
sanctions in addition
 General discovery sanction is fee in the amount your foot-dragging cost other side
Rule 26. Discovery Management
o 3/1 D is served
o 4/1 D answers
o 5/1 Parties hold discovery conference
o 5/15 Parties file discovery plan
o 5/29 Deadline for initial disclosures
o 6/1 Court holds scheduling conference
o 7/1 Scheduling order issued (now in Tier 2 sanction territory if you screw around)
B. Scope & Limitations

2 main questions:
1. What is the scope of discovery – what’s fair game?
 Limited to relevant evidence, but not as limited as what’s admissible in trial  includes
anything that could lead to anything relevant.
 Often gets abused – common objection is beyond the scope
2. Is it privileged?
 Can’t get privileged info, even if it’s relevant/decisive
 Most common privileges:
20


Attorney/client privilege
Work/product privilege – related to ACP, but less absolute
i. Relevance & Proportionality
1. Zubulake v. UBS Warburg LLC






P was discriminated against at work, sued
In discovery tries to get all emails pertaining to her – D gives some but argues that to give everything
would be unduly burdensome ($400k)
Info was clearly relevant
Issues:
o Is D required to produce it?
o If so, who pays for it? (Complete cost-shifting not fair w/little P against big D)
Court establishes 7 factors to determine if cost should shift (not checklist):
1. Marginal utility test (most important)
a. Extent to which request is specifically tailored to discover relevant info
b. Availability of info from other sources
2. Cost issues (2nd most important)
a. Total cost of production, compared to amount in controversy
b. Total cost of production, compared to resources available to each party
c. Relative ability of each party to control costs and its incentive to do so
3. Importance of issues at stake in litigation
4. Relative benefits to requesting party in obtaining the info
Court took diplomatic approach – D must take sampling of tapes to see if it would be cost-prohibitive –
if so, P bears 25% of cost
ii. E-Discovery Rules






Rule 26(f)(3)(C): Parties should consider e-discovery in discovery conference
Rule 26(b)(2)(B): Two-tiered discovery; production not required where info is not “reasonably
accessible because of undue burden or cost”
Rule 26(b)(5)(B): Provision for recapturing privileged material (Oops!)
o Most common problem w/e-discovery
Rule 34(b)(1)(C): Form of production – requester can specify, responder can object
Rule 37(e): Safe harbor from sanctions where material lost through routine good-faith operation of
electronic information system (no sanctions)
Unanswered question as to meta-data embedded w/in files (e.g. when it was saved, altered, etc.) 
ethical debate, leans toward not allowing
iii. Privilege

ACP vs. WPP
o ACP = only protects confidential info, (e.g. asking for advice, getting it)  absolute protection if
it qualifies
o WPP = something generated by lawyer for litigation – client doesn’t even have to know about it
– could be legal research, memos, talking to witnesses, theories, list of experts, etc.  lesser
protection
o Some overlap between the two, sometimes can even be both simultaneously (but usually talking
to client is ACP)
21
1. Work-Product Privilege & Hickman v. Taylor

Creates WPP – USSC says it’s important but not as important as ACP  so in cases of real hardship,
courts allow intrusion into WPP (not absolute privilege)
o So if one party can get info themselves, they must unless it imposes undue hardship – example
where attys got bunch of witness statements, other side wanted, but had to get themselves
2. Extending Privilege to 3rd Parties: In re Tri-State Outdoor Media Group, Inc.


4 factors to determine if privilege is extended:
1. 3rd party must be agent of atty
2. 3rd party must facilitate communication between atty and client for legal advice
3. Communications w/3rd party must be kept confidential
4. Privilege must not be waived
PP for extending privilege to 3rd parties:
o Sometimes 3rd party required to help communication (e.g. translator)
 Does NOT apply to experts – this is WPP
o 3rd party helps facilitate understanding of case
o Privilege protects communication flowing to and from client
 Can hire an agent that will fall under ACP (as long as they keep info confidential)
3. Expert Discovery Rules & Tri-State Outdoor Media Group






Both ACP and WPP waived if person from whom discovery being sought is named trial expert
Rule 26(a)(2)(A): Required disclosure of identity of trial experts
Rule 26(a)(2)(B): Required written report including opinions; data and info considered; exhibits;
qualifications; history as expert witness; compensation
o Opportunity to scare other side w/good expert
o But be careful – don’t get written reports that can’t help b/c you’ll have to fork them over
Rule 26(a)(2)(C): Timing either as ordered by court or 90 days before trial
o Usually happens before 90 days – later the better though so you’re more prepared
Rule 26(b)(4): Deposition of expert
o Must spend time w/your expert to figure out how best to depose other one
Informal consultations w/experts: CAREFUL – don’t get bad reports on filing – if they can’t give you
helpful info, cut them loose – anything they give in writing can be accessed by other side
C. Handling Discovery Disputes: Herein of Discovery Sanctions

Two motions are mirror images of each other:
i. Motions to Compel

Filed when you don’t get the discovery you asked for
1. National Hockey League v. Metropolitan Hockey Club




Delay in producing requested materials led to case dismissal
2 tiers of sanctions:
o Sanctions-lite  $ amount for expense it took to get info (most common)
o Judge can strike pleadings, stay the action, dismiss case, etc. (rarer)
USSC said trial judge didn’t abuse his discretion – within his rights to dismiss
Moral: Judges have ENORMOUSLY BROAD DISCRETION in sanctioning
ii. Motions for a Protective Order

Filed by other party before motion to compel
22
1. Phillips v. GM


LA Times wanted settlement docs – question is whether these should be covered under protective order
Magistrate judge didn’t grant protective order, claiming he had no authority; appellate court said he did
have authority, so remanded for good cause analysis
iii. Other Motions Concerning Discovery Abuses
1. Gonsalves v. City of New Bedford


P’s brother killed by cops while in custody; P’s atty hid fact that he was HIV+ to get her more $
o Coached P to answer questions in interrogatory so as to avoid detection
o Signed his docs but said it should only apply to objections
Judge gave $15k fine  compare to National Hockey League where offense was way less egregious but
case was dismissed  HUGE DISCRETION
VI. CASE MANAGEMENT, SETTLEMENT, & ADR

Sometimes “cheap” and “expeditious” don’t go together
A. Case Management
i. The Scheduling Order


Rule 16. Pretrial Conferences, Scheduling, Case Management
a) Purposes of a Pretrial Conference
1. Expediting disposition of the action;
2. Establishing early and continuing control so that the case will not be protracted because
of lack of management;
3. Discouraging wasteful pretrial activities;
4. Improving quality of trial through more thorough preparation; and
 (this is the only one that cares more about justice than speed)
5. Facilitating settlement.
b) Scheduling order
 First major step in CM
c) Pretrial conferences
 Can be as many as needed – very useful, often result in settlement
o (ADR happens here)
d) Final pre-trial conference and order – big long list of what to include
Rule 16(e) Final Pretrial Conference and Order
o Purposes:
 Expediting disposition of action
 Establishing early and continuing control so case won’t be protracted
o Required deadlines (failure to meet can result in dismissal):
 Joining parties;
 Amending pleadings;
 Filing motions;
 Completing discovery
o Optional (though common) deadlines:
 Providing Rule 26 disclosures;
 Scheduling pretrial conferences;
 Starting trial
23
1. Tower Ventures v. City of Westfeld



P missed 2nd extension by long shot with no good excuse
Even though D consented to 3rd extension, court dismissed; appellate court affirmed (no abuse of
discretion)
Tension between interest of parties and court’s administration of justice – this court only cared about
latter
ii. Final Disclosures: The Final Pretrial Order
1. RMR v. Muscogee County School District



P sued school over sexual molestation
Key witness came forward at last minute – P had good reason for not finding sooner (name change) and
D didn’t object to allowing testimony – but court won’t allow anyway
P appeals on abuse of discretion but loses
B. Settlement & ADR

2 things happen in Eastern Dist:
o Voluntary evaluation by neutral lawyer who has expertise in field
o Mandatory settlement conference  judge (not trial judge, who must remain detached) tries to
facilitate settlement, tells you holes in your case, etc. Client must be present.
VII. THE JUDGE & JURY



Motions for Summary Judgment & Judgment as Matter of Law – Timing:
o MSJ (Rule 56) should be about 3 months before trial
 Fairly routinely granted
o Trial starts
o Then you move for Rule 50(a) JML (on issue)
 Less routinely granted – if judge errs in granting there will be new trial, so they’re leery
to grant – instead wait and hope jury comes out w/right verdict
o Jury verdict entered
o If verdict is against you, can move for Rule 50(b) JML (aka jnov) AND/OR Rule 59 (new
trial)
 Rarely granted – how likely is it that entire jury was irrational?
So timing of motions is different, but standard judge should apply is same for all 3
Judge may deny 50(a) motion but grant 50(b) – you MUST bring 50(b) after 50(a) if you want it to be
appealable
A. Adjudication Before Trial: Summary Judgment

Rule 56. Motion for Summary Judgment – Are facts sufficient to go to jury? Is there genuine issue of
material fact?
o Tension between aims of FRCP: resolve case on its merits, AND speedy and cheap
o Rules favor liberal standard of pleading and discovery (lean to merits side) – MSJs counteract
these by having efficient vehicle for resolving dispute before trial
o SJ is way for D to call P out on missing element of case – gives P opportunity to respond, but if
P has nothing, MSJ should be granted. Appropriate when: SOL has run, no expert witness in
medical malpractice, etc.
24
i. Celotex v. Catrett






Began burden shifting – where P has burden of proof on issue, P must submit evidence supporting
a question of fact to defeat D’s MSJ
P filed wrongful death suit for her husband’s asbestos death
D files MSJ, claiming no evidence
P produced 3 docs as evidence, but trial court granted MSJ – said it was inadmissible hearsay and not
sufficient for defeating MSJ
Court of appeals reverses – said D needed to submit evidence negating P’s evidence
USSC said both were wrong:
o Evidence need not be admissible at trial  remanded (court could deem it too flimsy but must
consider it)
o D doesn’t have to produce evidence to support MSJ (near impossible to prove negative)  P
bears burden to produce evidence to beat MSJ but evidence need not be admissible at trial
ii. Matsuhida

Weak circumstantial evidence is insufficient to meet Celotex requirement
B. Judicial Controls Over Jury Factfinding During & After Trial
i. Interlocutory Appeal: Scott v. Harris




High-speed chase (youtube video)
D gets interlocutory appeal – aim is to protect govt officials from burden of frivolous/excessive lawsuits
Trial court denies IA, finds for P; appellate court affirms
USSC reverses:
o Scalia said reasonable people couldn’t differ after looking at video
o Interestingly, 4 judges already had differed
ii. Judgment as a Matter of Law: Reeves v. Sanderson Plumbing






Rule 50. Judgment as a Matter of Law  same thing as Rule 56 MSJ – both asking question whether
there’s genuine issue of fact over which reasonable jurors could differ – same standard (judge must look
at evidence in light most favorable to party opposing motion)
o JML aka “directed verdict”
o 2 motions required:
 At any time before submission to jury, AND
 After jury returns verdict
P sues claiming age discrimination in firing; D moves for JML
Difficult to prove state of mind in discrimination cases – court decided in McDonnell Douglas that
prima facie case requires:
o Must show you’re in protected class
o You’re qualified for job
o You were fired by D
o D replaced you w/someone outside protected class
At that point, burden shifts  D must offer evidence to show it wasn’t discrimination – D does this here
Burden then shifts back to P to prove elements  must convince jury firing was discriminatory and not
for reason D offered – P meets this here and then some
Court says this was enough for reasonable juror to differ (plus P ended up winning) – so no JML
iii. Jury Instructions, Special Verdicts, & General Verdicts with Jury Interrogatories

Rule 49 – two alternatives:
25


o Special verdicts: form that parties put together that asks juries yes/no questions about all relevant
issues – can be very lengthy and complex
o General verdicts: answer certain written questions – not everything – so if one side thinks jury is
missing technicality, this can remedy that
 Preference is for general verdict b/c they can’t be picked apart on appeal  better for
winning party
Must object to JIs (and keep objecting) or court considers you’ve waived your right to raise objection
later
JIs read aloud to jury one time – can go on for hours
iv. Renewed Motion for Judgment as a Matter of Law & Motion for a New Trial


Once juries come back, you can make Rule 50(b) motion for JML (aka jnov) – judge must decide
whether to change verdict or grant new trial. If he’s not sure what caused aberrant verdict, will prob
grant new trial.
o If you want to file 50(a) motion, must also file 50(b) motion or you can’t appeal it
o Used to have to make Rule 50(a) motions both pre- and post-verdict in order to make Rule 50(b)
motion (i.e. if you bring Rule 50(a) motion at close of issue, must bring it at close of evidence as
well)  no longer true
Rule 59. New Trial; Altering or Amending Judgment
o Join Rule 50 motion w/this after jury verdict
o Standards for the two are totally different though – judge has lots of latitude to grant new trial
here (unlike Rule 50 where judge constrained by “no issue of fact”) – looks at overall fairness of
proceeding – and appellate courts very deferential on Rule 59. So sometimes judge can throw
out on Rule 59 when he couldn’t on Rule 50, and may be scrutinized less on appeal.
1. Unitherm Food Systems v. Swift-Eckrich


Judge let case go to jury; Rule 50(b) and Rule 59 (new trial) motions brought together  this is what
10th Circuit told atty to do
Appellate court held if party doesn’t move for new trial post-verdict in district court, can’t move for one
on appeal. Rationale:
o PP – trial judges in best position to know what’s fair (new trial vs. reversed judgment) – if you
don’t give judge opportunity by filing 50(b) or 59 motion, then appellate court might make
wrong call
2. Weisgram v. Marley




Atty raised 50(a) motion over expert witness testimony being insufficient, then 50(b) motion – and
asked for new trial – but was denied
Appellate court granted Rule 50 motion (JML), says expert witness was inadmissible
P takes issue with this, appeals
USSC affirms appellate court’s granting of JML
VIII. PARTY JOINDER
A. Claim Joinders

Rule 13 – provides for joinder of counter-claims (claims brought by D against P)
o 2 kinds of counter-claims (when one P and one D):
 Permissive counter-claims: NOT related to same series of occurrences/transactions – if
D doesn’t bring then he can later
26
 Compulsory counter-claims: IS related to same set of transactions/occurrences – MUST
be brought then, or you lose them for later
o Not always clear what’s related and what isn’t!
i. Defendant’s Joinder of Claims Against Plaintiff
1. Painter v. Harvey



P alleges excessive force and rape; D countersues on slander
Issue on appeal: Was this permissive or compulsory counterclaim? If compulsory, federal jx would
apply (supplemental jx ok); if permissive, no federal jx (must have separate basis for jx)
o 4-part test to determine if claim is sufficiently related to constitute compulsory (not all are
required, but if all are met it’s probably compulsory):
 Are issues of fact and law largely the same? (Yes)
 Would res judicata bar subsequent lawsuit? (At issue here)
 Will substantially same evidence support/refute both claims? (Yes)
 Is there logical correlation between claim and counterclaim? (Yes)
Held: Compulsory counterclaim, so deputy didn’t lose claim – arguable that it arose under separate
transactions (libel action doesn’t commence until she makes allegation – could happen years after actual
arrest)
B. Permissive Party Joinders


Judges have wide discretion as to joinder rules
Rule 20 – provides for permissive party joinder
o “Permissive joinder of other parties as Ps or Ds allowed where:
 They assert any right to relief arising out of the same transactions or occurrences;
 Any common question of law or fact will arise in the action.
o The court may issue orders to protect parties from embarrassment, delay, expense, or prejudice.”
i. Joinder of Multiple Plaintiffs & Defendants


Rule 42(b) – joinder is permissive, not mandatory – left to judge’s discretion – but joinder is favored for
efficiency’s sake, as long as injustice won’t result
Vocabulary:
o Counterclaim: claim against opposing party – need not relate to original action
o Impleader: action against 3rd party (D2), not already party to action, who may be liable to 3rd
party P (i.e. D1)
o Crossclaim: action against co-party (not party’s opponent and not a new party) that relates to
same transaction/occurrence
1. Alexander v. Fulton County, GA



Ps argued all claims arose under same systemic policy of discrimination
Ds worry that some sympathetic Ps will prejudice jury
Appellate court upholds joinder:
o Obviously jury wasn’t confused or prejudiced b/c not even all 18 Ps won – some lost their claims
o Joinder was more efficient (agreed the discrimination was systemic)
o Rule 42(b) arguments insufficient to overcome these 2 rationale
ii. Joinder of Additional Parties by the Defendant
1. Impleader: Lehman v. Revolution Portfolio LLC

Later it is in the game, less likely court will allow
27




Impleader action NEED NOT have its own qualifications for federal jx, since they’re related – ok if <
$75k or ruins diversity (since it doesn’t ruin diversity between original P and D)
Rule 14(a): Permissive Joinder by D (Impleader)
o Who can be brought in?
 A non-party who is or may be liable to the original D for all or part of claim brought by P
o When can non-party be brought in?
 Within 10 days later after original D answers; OR
 Later w/leave of court (if you needed that time to discover that another party was
responsible)
o Terminology:
 Original D = 3rd party P
 Newly joined D = 3rd party D
Lehman v. Revolution Portfolio LLC
o D claims if he is liable to P, then D2 also liable  14(a) says ok
o Question is whether additional claim can be joined in same proceeding as impleader action?
Yes:
 If you have valid impleader action under 14(a) to get you in door, then you can add
additional claims on top of it
o PP: avoid multiplicity of suits and get consistent results
o Fair result here (D2 was bad actor who caused suit in first place), but can be problem when a P
gets his suit hijacked by multiple Ds he has no interest in
Rule 18(a) allows for joinder of other claims against same party (so long as jx and venue requirements
are met) – need not relate to same transaction/occurrence
o Potentially controversial because D can bring in other Ds and raise costs for P (LASA, below)
o Gamble for D to bring in D2:
 If D2 doesn’t show, can get off hook (empty chair strategy), BUT
 If D2 does show, can paint D1 in bad light
iii. The Assertion of Additional Claims in the Context of Permissive Joinder
1. LASA v. Alexander




2 Ds suing each other (crossclaim)
Issue: Is this allowed – does crossclaim arise out of same transaction/occurrence as original claim?
Court holds whole thing arose out of dispute over marble, so same issue
Sucks for P who just wants to be paid for his marble – now several Ds involved w/different claims –
better for taxpayers not to divide suits though
o PP: When we say “efficiency,” for whom do we mean – P? Ds? taxpayers?
C. Involuntary Joinder Under Rule 19
i. Rule 19: When Joinder is Required

Rule 19. Required Joinder of Parties
o Party is necessary when
 The party is necessary for court to grant complete relief; or
 The party has a legally protected interest that would be impaired or impeded or that
creates the risk of inconsistent rulings or obligations.
o When joinder of necessary party is not feasible, court should determine whether in equity and
good conscience the action should proceed w/o that party. To determine answer to this, look to 4
factors:
1. Possible prejudice to party or others;
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
2. Minimizing prejudice by shaping relief;
3. Adequacy of remedy without party’s presence;
4. Adequacy of P’s remedy if action were dismissed.
When analyzing Rule 19, approach this way:
o Is the party necessary?
o If so, can the party be joined? If they can, they must.
 Is party subject to service of process?
 Will joinder deprive court of jx?
o If joinder is not feasible, should the court in equity and good conscience allow action to proceed
or dismiss?
1. Makah Indian Tribe v. Verity




P sues over their fishing rights allocation:
o Substantive claim – quota violated treaty rights
o Injunctive claim – regulatory process violated FCMA
District court dismisses for failure to join 23 necessary other tribes (would be affected if reallocation
occurred)
o P didn’t join them because they had sovereign immunity (service of process not possible)
Issue on appeal: Was district court right then in dismissing action? USSC holds:
o For injunctive claim, other tribes were not necessary; BUT
o For substantive claim, they were, so they were ultimately necessary to suit
o Agreed w/trial court’s holding on 1st 3 factors, but not on 4th  but still rules no abuse of
discretion
Yes, unfair to P – but would be more unfair to other tribes otherwise – must weigh these
D. Intervention as an Alternative to Permissive & Mandatory Joinder



In contrast to compulsory joinder, here moving party WANTS to be brought in – so even though
language in rules is same, it’s interpreted differently:
o Rule 19 necessary parties interpreted narrowly, since forcing someone in
o Rule 24 interpreted liberally, since party wants in
 Example: Students would never qualify as mandatory parties under R.19, even though
they qualify as intervenors under R.24 – court would never say all potential law students
are mandatory parties.
Appeal of intervention always reviewed de novo
Rule 24. Intervention
o Intervention of Right  court MUST permit
 Person had unconditional statutory right; or
 Person claims interest that may be impaired
o Permissive Intervention  court MAY permit
 In general:
 Person has a conditional statutory right; or
 Person has a claim or defense that shares with the main action a common question
of law or fact.
 By government officer or agency
 In exercising its discretion, court must consider whether intervention will unduly delay or
prejudice original party’s right
i. Grutter v. Bollinger

White Ps challenging U. Mich’s affirmative action policies
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

Minorities and AA groups want to be intervenors – rationale:
o Claim they can make arguments the U wouldn’t make
 U would have to reveal embarrassing facts about past
o U has less to lose than they do
De novo standard on appeal – court allowed intervention based on 4 elements that must be established to
intervene as matter of right:
1. Exam Strategy for Intervention of Right
1. Was the motion to intervene timely?
o Not at issue here
2. Did the intervenors have a substantial legal interest in subject matter of case?
o Trial court said no b/c their interest wasn’t legally protectable – but appellate court said not
necessary  they read this requirement more liberally, say intervenors’ interest in gaining
admission constitutes valid legal interest. (This is as expansive as courts get in interpreting this.)
3. Might their ability to protect that interest be impaired in the absence of intervention?
o Appellate court says yes
4. Will the parties before the court adequately represent the intervenors’ interest?
o Appellate court says no – agrees w/intervenors’ reasoning
 PP: But where do we draw the line for letting parties in? can get out of hand.
IX. JUDGMENTS

Preclusive effects of other jxs: If 2nd suit is in different state and state law was applied, will still be
precluded if you would have been in 1st suit/state – must respect sister state’s jx. If 1st was federal law,
federal common law determines preclusion (Parklane)
A. Claim Preclusion (Res Judicata)


Claim Preculsion (res judicata): One who has had the opportunity to litigate a claim before an
appropriate tribunal is generally precluded from relitigating it. (Sometimes harsh – you might lose then
find new evidence – but too bad.) If ANY doubt as to whether issue or claim preclusion, bring both in
case.
o Example: P alleges brutality by 2 cops; sues D1 in federal court based on federal civil rights
violation. He loses and judgment is entered.
 P CANNOT:
 Later sue D1 in state court alleging state civil rights action
 Later sue D1 in state court alleging battery
 Later sue D1 if new, irrefutable evidence is discovered (unless something like
fraud/bribery precluded you from finding evidence before)
 P CAN:
 Sue D2 in state court alleging federal and state civil rights violation and battery
(same incident but requires different evidence since new party)
Restatement §17: Claim Preclusion
o A valid, final personal judgment is conclusive between the parties
 If the judgment is for P, the claim is extinguished and merged in the judgment and a new
claim may arise on the judgment (i.e. you can sue to enforce judgment in another jx, but
can’t raise new claim);
 If the judgment is for D, the claim is extinguished and judgment bars any subsequent
action on the claim
 Question becomes: What is a “claim”?
30
o Restatement §24 – “Transaction” or “Series”
 “Transaction” and “series” to be determined by considering
following factors (left to judge’s discretion):
 Whether the facts are related in time, space, origin, or
motivation;
 Whether the facts form a convenient trial unit; and
 Whether their treatment as a unit conforms to parties’
expectations.
i. Rush v. City of Maple Heights


P injured himself on D city’s pothole; sued 1st for damage to bike for $100 and won; later tried to sue for
personal injury (strategy was to prove negligence then tag personal injury suit on after)
Trial court held claim preclusion so out of court; P argued only issue preclusion
B. Issue Preclusion (Collateral Estoppel)

Issue preclusion (collateral estoppel): One who actually litigated an issue before an appropriate tribunal is
generally precluded from relitigating it.
o Way more limited than claim preclusion – just limited to issue in suit
o Example: D Greyhound bus in crash in which many passenger Ps are injured. P1 sues D in state
court and jury finds D was negligent.
 If P2 sues D, D CANNOT deny negligence – already litigated
 If P3, driver of car involved in crash, sues D, D can claim contributory negligence by P3 –
P3’s negligence has no bearing on whether D was negligent too
Restatement §27: Issue Preclusion
o When an issue of fact or 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.
 Majority jx: Works not just between the two original parties, but also relevant 3rd parties
(Greyhound example)
Restatement §28: Exceptions  see casebook p. 318


i.
Defensive Collateral Estoppel


D can estop P from relitigating an issue that P previously lost against another D.
Example: P’s patent found invalid in infringement action. P is estopped from bringing a second action
against another alleged infringement.
1. Parklane Hosiery Co. v. Shore





ii.
P1 (SEC) sues D and wins based on D’s misleading statements
P2 (represents stockholders) then sues – wants to rely on this – says since statements were found to be
misleading in P1’s trial, they should be for P2’s trial as well – D argues collateral estoppel
Trial court denies; appellate court reverses
Issues before USSC:
o Does issue preclusion apply?
 Former rule of mutuality said issue preclusion only related to original parties – but this
overrules that
Holding: Mutuality no longer required – issue preclusion applies, P2 can rely
Offensive Collateral Estoppel

P can estop D from relitigating an issue that D previously lost against another P.
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
Example: Greyhound bus driver found to have negligently crashed bus injuring passenger P1.
Greyhound is estopped from denying negligence in action brought by passenger P2.
C. Class Actions

Relitigation will be precluded if P was adequately represented in suit as a party.
X.APPEALS
A. Structure & Function of Appellate Courts

Functions of appellate courts:
o Error correction: Intermediate courts of appeal correct errors on questions of law (not questions
of fact)
o Conflict resolution: Courts of appeal resolve conflicts in rulings on questions of law in lower
courts
o Law articulation: Courts of appeal determine law in their jx both as to common law doctrines and
constitutional and statutory construction
B. Basic Concepts
i. Appealability

Final judgment rule: Before losing party can appeal, action must be finally resolved in trial court and
final judgment must be entered
o Exceptions:
 Orders involving injunctions are entitled to interlocutory appeals (most important, most
common)
 Orders involving certification of class actions may be appealed in discretion of appellate
court
 Orders involving a debatable question of controlling law where trial judge finds that
immediate appeal my materially advance the termination of litigation  these may be
heard by appellate court in its discretion
ii. Reviewability


Harmless errors: Errors that do not affect judgment (whether win/lose or damages) are not reviewable
o Example: Trial court refused to let defense expert testify, but jury returned verdict for defense
anyway
Invited errors: Errors that losing party failed to bring to trial court’s attention are not reviewable
o Example: Trial court gave erroneous jury instruction that losing party failed to object to.
iii. Standards of Review


De novo review: Appellate court reviews questions of law de novo, i.e. w/o deference to trial court
(fresh eyes).
o Example: Which SOL applies?
Abuse of discretion standard: Appellate court defers to trial courts where they enjoyed discretion.
o Example: Whether trial court should have issued sanctions
iv. Mechanics

Appellate practice
o Notice of appeal – 30 days after entry of judgment
o Record on appeal: reporter’s and clerk’s transcripts
32
o Excerpts of record – by local rule, appellant must compile and index these
o Briefs
Oral arguments
o Increasingly common that these are NOT allowed
o Discretionary grant
o Time limits (strict)
o Notification of panel
o Mechanics:
 Appellant opens; appellee replies; appellant closes; questions from bench; podium lights

XI. CLASS ACTIONS
A. Class Action Basics
i. Requirements of Class Action Representation: Rule 23(a)
1.
2.
3.
4.

Numerosity: Class is so numerous that joinder of all members is impracticable;
Commonality: There are questions of law or fact common to the class;
Typicality: Claims/defenses of representative parties are typical of the class; AND
Adequacy: Representative parties will fairly and adequately protect interest of the class.
If you satisfy ALL 23(a) requirements, can move on to 23(b)
1. Haley v. Mestronic



23(a) analysis:
o Numerosity satisfied by 66k class members scattered around US  joinder impracticable
o Commonality satisfied b/c common questions as to product defect, D’s conduct, and medical
monitoring remedy
o Typicality satisfied b/c P and class all suffered same type of injury from same course of D’s
conduct
o Adequacy satisfied because (a) atty has sufficient qualifications and experience and no conflicts
of interest, and (b) P has same interest as class and will therefore adequately represent them
23(b) analysis next:
o 23(b)(3) – CA is not superior to other procedures b/c of conflicting states’ laws governing the
66k class members
o 23(b)(2) – since $ damages is principle relief sought, class can’t be certified under this
Held: Unmanageable CA, can’t proceed
ii. Four Types of Class Actions: Rule 23(b)



(1)(A). Separate actions could lead to inconsistent judgments that would establish incompatible
standards of conduct
o Example: 30 indian tribes have treaty rights to fishing and they seek injunctive relief regarding
allocation of fish among tribes. Separate actions could cause different courts to issue conflicting
orders.
(1)(B). Separate actions could as a practical matter substantially impair class members’ ability to protect
their interests.
o Example: Same facts as above. If Tribe A gets judgment for larger share of fish that could
impair Tribe B’s ability to get more fish.
(2). The party opposing the class has acted or refused to act on grounds generally applicable to whole
class, thereby making appropriate final injunctive or declaratory relief to whole class.
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
o Note: This ensures that civil rights actions can be brought as CAs (basically a specific
application of Rule 23(b)(1)(A))
o Example: Women challenge their exclusion from employment at local fire department.
(3). Money Damages Claims: Common questions of law or fact predominate so that a class action is
superior to other procedures to fairly and efficiently resolve dispute.
o Note: This is the subsection for opt-out CAs and generally the only category for $ damages (as
opposed to injunctive/declaratory relief)
o Example: Class members allege that over 18-month period local bank imposed improper $5 fee
for account transfers in violation of its advertising and customer Ks.
o Predominance requirement: Common questions must predominate over individual questions
o Superiority requirement: Class treatment must achieve greater fairness and efficiency than any
other approach.
o Factors:
 Class members’ interest in separate actions;
 Any litigation already initiated in dispute (if only 1 or 2, prob ok – if a lot, we don’t want
to pull rug out from under them);
 Desirability of using particular forum (some sort of locus of events or witnesses?);
 Difficulties in managing class action.
B. Procedural Doctrines Reconsidered
i. Personal Jurisdiction
1. Phillips Petroleum v. Shutts





“Opt out” = when $ damages at stake, Ps can opt out of class and reserve right to bring suit later
Class consisted of 33k royalty owners whose royalties were suspended by petitioner. Average claim of
each was $100.
For purposes of DP, Ds and absent class members are distinguishable:
o Fairness requires minimum contacts to protect D from being sued in distant forum, subjected to
burdens and expenses, at risk of default judgment.
o Absent P class members are not subjected to those burdens or risks, plus their interests are
protected by class representatives and the court.
DP satisfied by reasonable and adequate notice; an opportunity to participate or opt out of litigation; and
adequate representation by named P
Examined how CA intersects w/other procedural rules:
o Federal question jx: Dispute involves questions of federal law.
o Diversity jx: Same.
o Supplemental jx: OK if same case and controversy.
2. History: 1921-2005




Ben Hur v. Cauble (1921): Diversity is determined by comparing citizenship of class representatives to
citizenship of Ds; incomplete diversity ok.
Snyder v. Harris (1969): Each class member must have > $75k in controversy; no aggregation of claims.
Zahn v. International Paper (1973): We really mean it: each and every class member must have > $75k
at stake.
CLASS ACTION FAIRNESS ACT (2005)
o Original Jx
 CAFA does not apply to class actions w/ < 100 members
 CAFA does not apply to actions by shareholders against corporate management nor to
actions involving some state law securities fraud
34


CAFA applies to other actions where any P has different citizenship from any D and the
amount in controversy > $5M (relaxes diversity requirements)
o Removal Jx (also expanded)
 Only one D needs to seek removal and other Ds need not consent
 Case can be removed > 1 year after filed in state court (extended time period, D-friendly)
Exxon Mobil Corp. v. Allapattah Services (2005): In adopting supplemental jx (§1367), congress
overruled Zahn – where one class member has $75k in controversy, the other members’ claims
involving < $75k enjoy supplemental jx so long as they arise out of same case and controversy.
ii. Preclusion

Different standards for preclusion under CA?
o Comes up when there’s been CA, and liability/damages has been resolved, but some Ps feel
they’ve been shafted
1. Stehpenson v. Dow Chemical Co.



Agent Orange suit (long latency period) - $180M settlement for 1984 CA – settlement lasted for 10
years
Court worried about DP for Ps
o Was there a final judgment on the merits?
o Did court have competent jx?
o Did case involve same parties or their privies?
o Did case involve same cause of action?
Came down to 3rd factor
o PP – who does court want to be unfair to? Should Ps who were injured be precluded, or should
D be forced to pay out even though they thought their settlement was all they’d have to pay?
iii. Erie
1. Rhone-Poulenc Rorer



Blood bank didn’t screen for HIV, thousands were infected
P’s serendipity theory: even though D didn’t know to screen for HIV, should have screened for hepatitis,
which would have caught HIV
Haley said CA appropriate since you can’t apply 50 states’ laws to one suit – ok for big states where
many Ps can still sue, but what about small states where few Ps reside? No good answer
iv. Trial
C. Settlement Class Actions: Resolving Widespread Disputes without
Adversary Litigation
i.
Amchem Products v. Windsor



Parties filed complaint, answer, and settlement scheme all in same day (no intent of litigating)
District court certified for settlement; appellate court reversed for failure to satisfy Rule 23
USSC affirms appellate court:
o Numerosity met
o Commonality met
o Typicality presumably met
o Adequacy is what’s at issue – present Ps have no interest in protecting them, since it’s better for
those Ps to take more $ all at once than save some for absent Ps  conflict of interest
35