Civil Procedure — Attack Outline

Commencing a trial

• Required basics: Need all of these for a lawsuit
  • Personal jurisdiction: Due Process concern (Amendments V, XIV)
    • Requirements can be waived by defendant (on purpose or inadvertently)
    • General jurisdiction:
      • Individuals: PJ in any of:
        • Where they are domiciled
        • Where they are physically present
      • Corporations: PJ in any of:
        • Where they are incorporated
        • Where they are “at home”
        • “Continuous”, “substantial”, “systematic” ties test
      • Property: Person (individual or corporation) can be sued in rem:
        • In rem jurisdiction: affects interests of all persons in property
        • Quasi in rem jurisdiction: affects interest of particular person in property.
          • Plaintiff seeking to establish exclusive right to property.
          • Plaintiff seeks to use other’s property as way to sue them.
    • Specific jurisdiction:
      • Important reminder: For any statute-based claim (e.g. long arm statutes), statute analysis comes before constitutionality/due process analysis.
      • Jurisdiction based on a (a) specific event that (b) gives rise to a cause of action.
      • 5 constitutional fairness factors (World-Wide Wolksvagen):
        • Burden on defendant
        • Forum state’s interest in adjudicating the dispute
        • Plaintiff’s interest in convenient/effective relief
        • Interstate judicial system’s interest in efficient dispute resolution (“flooding the dockets” problem)
        • Policy interests of other states resolving the dispute.
      • “Minimum contacts” tests examples. See full outline for details.
        • Intentional torts
        • Contracts
        • Stream of commerce
        • Cyberspace
  • Subject-matter jurisdiction: States’ rights concern (Article III §§1-2)
    • Cannot be waived by either party or by the court. Court can dismiss for lack of SMJ any time throughout the trial (including during appeals).
    • Diversity jurisdiction
      • Individuals: Citizen of state where domicile is.
      • Corporations: Citizen of state where incorporated or where principal place of business is (28 USC § 1332(c)(1)). That is where officers are (Hertz v. Friend).
    • Federal question
      • Based on federal law
      • States typically have concurrent jurisdiction (some exceptions like copyright).
      • Mixed case: federal law has “substantial bearing” on a state claim
        • Very hard if no private right of action (express or implied)
      • “Well-pleaded complaint” rule: federal question must be in the complaint, not merely an anticipated defense.
    • Supplemental jurisdiction
      • If federal courts have original jurisdiction over a case, they also have jurisdiction over state-law claims that are so closely related that they form part of the same case or controversy.
      • They don’t have supplemental jurisdiction if the only original jurisdiction is based on 28 USC § 1332 (diversity and required minimal amount in controversy) and:
        • There are non-diverse defendants in the state case brought in under impleader, permissive or non-permissive joinder, or intervention.
        • There are non-diverse plaintiffs in the state case brought in under non-permissive joinder or intervention.
  • Venue: Statutory concern
    • Individuals: venue residency is in state where domiciled.
    • Corporations:
      • If defendants, residents of state where they are subject to PJ. If multiple districts in state, treat each district as separate state.
      • If plaintiffs, residents only where they have principal place of business.
    • Venue can be transferred for inconvenience (28 USC § 1404) or to cure defect (28 USC § 1406).
      • Court can transfer sua sponte.
      • Forum selection clauses treated as inconvenience.
      • §1406 can be used to cure PJ defects.
      • Choice of law law governs which forum’s law will apply after transfer.
    • Transfer for multidistrict litigation (28 USC § 1407).
  • Forum non-conveniens:
    • Case dismissed when it cannot be transferred (foreign court, court in different state, etc.)
    • Factors to consider (Piper Aircraft):
      • Private interest of litigants:
        • Relative ease of access to sources of proof
        • Availability of compulsory process for attendance of unwilling witnesses
        • Cost of obtaining attendance of willing witnesses
        • Possibility of view of premises, if view would be appropriate to the action
        • All other practical problems that make trial of a case easy, expeditious, and inexpensive.
      • Public interests:
        • Administrative difficulties flowing from court congestion
        • “local interest in having localized controversies decided at home”
        • interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action
        • the avoidance of unnecessary problems in conflict of laws or application of foreign laws
        • unfairness of burdening citizens in an unrelated forum with jury duty
      • Don’t give even substantial weight to less favorable law in foreign forum.
• Summons:
  • FRCP 4
  • Mullane standard: Notice must be "reasonably calculated" to appraise interested parties.
• Pleadings:
  • Complaint and pleading standards
    • Must be “plausible,” non-conclusory, can’t just recite bare-thread legal theory.
    • Court evaluates 12(b)(6) motions to dismiss by taking non-conclusory factual allegations in light most favorable to the plaintiff.
  • Response to complaint
    • Can respond by motion (FRCP 12(b)).
      • Some motions can be waived if not raised (FRCP 12(g) and 12(h)).
    • Can respond by answer (FRCP 8(b) and 8(c)).
      • Must affirmatively admit or deny each allegation. Generally, default is an admission if you do not deny.
      • Must state affirmative defenses (FRCP 8(c)) or waive them. See Ingraham.
  • Amending pleadings
    • Pleadings may be amended as a matter of course and with leave.
    • Statute of limitations is tolled, but additional claims must “relate back”. See Barcume.
  • Class action
    • FRCP 23(a): Four requirements for being certified as a class:
      • Numerosity (of claimants)
      • Commonality (of claims)
      • Typicality (of representatives)
      • Adequacy (of counsel/representation)
    • Three types (FRCP 23(b)):
      • (1) Risk of inconsistent adjudication
      • (2) Opposing party acting in a particular way to all members
      • (3) Predominating common questions over individual circumstances
        • Only way to get money
        • Have to provide notice and ability to opt out
        • Factors to consider (FRCP 23(b)(3)(A)-(D))
    • Can submit a settlement motion at the same time as certification (FRCP 23(e)).
    • Easier to remove class actions to federal court or get original jurisdiction there (Class Action Fairness Act)
  • Joinder
    • Very liberal joinder of claims (FRCP 18).
    • Permissive joining of parties (FRCP 20).
    • Required joinder (FRCP 19): Must be joined in some cases, court may have to dismiss if can’t join.
    • Impleader (FRCP 14): Third-party practice. A defendant may assert a claim against a nonparty “who is or may be liable to it for all or part of the claim against it.”
    • Interpleader:
      • Rule interpleader (FRCP 22): Diversity required between shareholder and all claimants. Claimants need not be diverse from each other. No authority to enjoin other competing actions.
        • Venue governed by §1391.
        • Personal jurisdiction covered by FRCP 4(k) and Due Process.
      • Statutory interpleader (28 USC § 1335): Stake must exceed $500. Claimants must be diverse. Citizenship of stakeholder is irrelevant. Courts may restrain claimants from commencing other actions (§2361).
        • Venue proper in a district in which one or more claimants reside (§1397).
        • Service of process may be made anywhere in the US (§2361).
    • Intervention (FRCP 24): Either intervention of right (a) or permissive (b).
  • Claim preclusion / res judicata
    • Valid, final, personal judgment
      • For plaintiff: merges claim into action for judgment
      • For defendant: bars new action for claim
      • Doesn’t matter if there is new evidence, theory of the case, etc. Some narrow exceptions in RSJ §26(1).
      • Durfee v. Duke: Nebraska/Missouri situation. Other state must give full faith and credit.
      • Federated Department Stores v. Moitie: Can preclude even if there was change in intervening law.
      • Kremer v. Chem Contr. Corp.: State law can preclude federal law
      • Can never preclude non-parties except in specific exceptions (Taylor v. Sturgell)
  • Issue preclusion / collateral estoppel
    • Issues can be precluded except for specific exceptions (RSJ §28).
    • Offensive CE is allowed (Parklane Hosieri v. Shore) prior to that, “mutuality” was required.
    • Change of intervening law can defeat issue preclusion (Commissioner of IRS v. Sunnen)
    • FRCP 13(a), RSJ §22: Some cross-claims are compulsory. Effect is that they are precluded if not pleaded.
  • Policing the pleadings
    • FRCP 11: Sanctioned if the following is false: (1) being presented for an improper purpose, (2) claims, defenses, etc. are warranted by existing law or nonfrivolous argument for changing the law, (3)/(4) claims/denials have evidentiary support. Court may impose sanctions on attorneys, but they have 21 days to retract. Court can impose financial sanctions unless it was for #2 above. Can’t be sanctioned for anything in FRCP 26-37 (discovery, disclosure, responses, objections, motions).
    • Christian v. Mattel, Inc.: Proper review is abuse of discretion. Inquiry: (1) Whether the complaint is legally or factually “baseless”, and (2) was there a “reasonable and competent inquiry” conducted by attorney before signing/filing.

Discovery and disclosure

• Discovery procedure and rules
  • FRCP 26(a): Required initial disclosures
  • FRCP 26(b): Allowable discovery
    • Does not necessarily need to be admissible evidence. Could for example be used to lead to evidence (Blank v. Sullivan & Cromwell)
  • FRCP 37(a)-(c): Discovery can be compelled
• Privilege
  • FRCP 26(a)(3),(5): Work made in preparation for trial generally cannot be discovered, unless it is SUPER needed. Privilege must be claimed affirmatively. If a party accidentally got privileged material, it must destroy it.
  • Upjohn Co. v. United States: Company’s attorney-client privilege extends to all employees.
• Expert testimony
  • FRCP 26(b)(4): Experts may be deposed. Drafts of their reports are protected, as are communications with them.
  • FRCP 26(a)(2): Experts must be disclosed and they must write a report.
  • When an expert can be deposed:

• • Experts typically can’t switch sides (Cordy v. Sherwin-Williams), but there must actually be non-confidential information disclosed (Coates v. Duffer’s Golf Ctr.)

Summary judgment

• FRCP 56:
  • (a) Show that there is no genuine dispute as to any material fact.
  • (b) Have until 30 days after end of discovery to file.
  • (c) Have to support it with particular materials on record. Has to be admissible as evidence. Court can consider other material from record that is not cited.
  • (d) Court can defer if nonmovant needs more time.
  • (e) Court can be lenient or not if someone fails to produce enough evidence.
  • (f) Court can act spontaneously.
  • (g) Court can say that some facts are undisputed even if entire verdict is not granted.
• Supreme court series:
  • “Trilogy” is Celotex, Matsushita, and Anderson.
  • Adickes v. S.H. Kress & Co., US (1970): Moving party has to demonstrate absence of genuine issue, even if opposing party produces essentially no evidence.
    • Genuine issue = a factual assertion that is possibly true.
  • Celotex Corp. v. Catrett, US (1986): If the nonmovant has the burden of persuasion at trial, the movant may meet its “burden of production” on the summary judgment motion by showing that the nonmovant did not produce admissible evidence supporting her claim.
    • Genuine issue = an issue, such that each party showing it with evidence would be sufficient to carry their burden of proof at trial.
  • Matsushita Elec. Indus. Co. v. Zenith Radio Corp., US (1986): Plausibility standard. Must be plausible and rational for party to do what it’s being accused of. Dissent accuses majority of weighing evidence (disagreement by experts). Possibly limited to antitrust law.
    • Genuine issue = An issue that a rational juror could decide either way. Must be plausible or supported by “more persuasive evidence.”
  • Anderson v. Liberty Lobby, Inc., US (1986): Libel case. Basically identical standard to FRCP 50. Judge must ask whether a fair-minded jury could rationally decide that the appropriate standard applies (e.g. in a libel case whether there is malice, etc.). Judge must not “weigh the evidence,” but must bear in mind the “quantum” required and whether the “caliber and quantity” of the evidence is sufficient.
  • Scott v. Harris, US (2007): S.J. based on video as “undisputed” fact.
    • Genuine issue = rational juror must be able to find for the movant
  • Tolan v. Cotton, US (2014): Court vacates S.J. due to lower court ignoring evidence.
    • Genuine issue = testimony of the parties conflicts

Trials

• Judges and juries
  • Judge recual:
    • Caperton v. A.T. Maseey Coal Co., US (2009): Judge forced (by SCOTUS) to recuse himself due to apparent impropriety of sitting on appeal of party that backed his election campaign.
  • Right to a jury:
    • 7th Amendment: Right to a jury in civil trials when they are analogous to common-law claims pre law-equity merger. Not incorporated to states.
    • FRCP 38: Right must be demanded, otherwise waived. Can have partial jury trial.
    • FRCP 39: Judge can order jury on his own, and also empanel an “advisory jury.”
    • Curtis v. Loether, US (1974): Title VIII discrimination claim can be tried by jury. First ask whether they’d be tried in law or equity. Then ask what the relief sought is.
    • Tull v. United States, US (1987): Civil penality is equitable.
    • Markman v. Westview Instruments, Inc., US (1996): Patent claims are not triable by jury as a matter of public policy. Extends Curtis test. If both prongs in equipoise, use public policy.
  • Selecting a jury:
    • Right to sit on a jury is the juror’s right.
    • FRCP 47: Court may inspect jurors and give peremptory challenges as per 28 USC § 1870.
    • FRCP 48: Generally 6-12 jurors. Verdicts must be unanimous unless parties agree.
    • 28 USC § 1870: 3 peremptory challenges per party.
    • Edmonson v. Leesville Concrete Co., US (1991): Can’t discriminate based on race in peremptory challenges.
    • J.E.B. v. Alabama ex rel. T.B., US (1994): Can’t discriminate based on sex in peremptory challenges.
  • Managing the jury:
    • FRCP 49: Court can order specific verdicts or written questions (discretionary).
      • If answers/verdict consistent, go with that verdict.
      • If answers inconsistent with verdict, either go with the answers, ask for further deliberations, or order a new trial (or JMOL).
      • If answers inconsistent with each other, order a new trial.
    • FRCP 51: Each party furnishes its own instructions, judge can deliberate, each party may object. Judge can comment on the evidence.

• Judgment as matter of law (JMOL, directed verdict), RMOL/JNOV
  • FRCP 50:
    • Can make JMOL on any issue once party was fully heard on that issue.
    • If JMOL is made by close of evidence, RJMOL can be made after verdict (within 28 days).
    • If court rules on RJMOL, it must also rule on new trial in case it’s vacated/reversed.
  • Standard for JMOL is like S.J.: Consider all evidence but make inferences in light most favorable to the nonmoving party.
  • Galloway v. United States, US (1943): JMOL allowed, woman produced essentially no evidence that her husband had actual mental disability for 10 years. Dissent argues this is weighing evidence, intruding on jury territory.
  • Reeves v. Sanderson Plumbing Prods., Inc., US (2000): Prima facie evidence should be considered in discrimination case when ruling on JMOL. Overturns JMOL in this case.
• Motion for a new trial
  • FRCP 59: Court may grant a new trial by motion or on its own for any reason on which “a new trial has heretofore been granted”.
  • A party has to move for a new trial in the alternative of JMOL to have the new trial option if JMOL is overruled on appeal.
  • Sanders-El v. Wencewicz, 8th Cir. (1993): Proper review is abuse of discretion.
  • Weisgram v. Marley Co., US (2000): Appeals court can enter judgment, grant a new trial itself, or remand to district judge to decide between the two.
  • Jennings v. Jones, 1st Cir. (2007): Native American suing police officer over use of excessive force. District trial orders new trial. Circuit court sustains.
    • “A trial court may grant a new trial on the basis that the verdict is against the weight of the evidence. Further, ‘the district court has the power and duty to order a new trial whenever, in its judgment, the action is required in order to prevent injustice.’ When deciding whether to grant a new trial, a district court is free to independently weigh the evidence.”

Direct attacks

• FRCP 60: Court may fix clerical errors. Also, within a year can grant relief on a final judgment for:
  1. Mistake, inadvertence, surprise, or excusable neglect.
  2. Newly discovered evidence that could not have been discovered in time for a new trial.
  3. Fraud, misrepresentation, or misconduct by an opposing party.

Can also grant relief within a reasonable time if:

• 1. Judgment is void
  2. Judgment:

• 1. • Has been satisfied, released, or discharged
     • Is based on an earlier judgment that has been reversed or vacated
     • Applying it prospectively is no longer equitable

• 1. Any other reason that justifies relief

• Kupferman v. Consolidated Research & Mfg. Co., 2nd Cir. (1972): Example of a failed attempt of fraud on the court.
• Pierce v. Cook & Co., 10th Cir. (1975): Same accident leads to two lawsuits. First lawsuit loses based on OK law. Second lawsuit results in change of OK law. First lawsuit overturned on FRCP 60(b)(6) [NOT 60(b)(5) because it wasn’t based on an earlier judgment].

Governing law in diversity cases

• 28 USC § 2072 AKA Rules Enabling Act: Allows Congress to set rules for procedure as long as they don’t “abridge, enlarge, or modify” any substantive right.
• Old rule (Swift v. Tyson): Federal diversity courts apply state procedural law but federal substantive law.
• Erie v. R.R. Co. v. Tompkins: Reverses Swift.
• Guaranty Trust Co. v. York: “Outcome determinative” rule. If a rule would change the outcome, it’s substantive. Otherwise procedural. Proves unworkable.
• Hanna v. Plumer: “Rules rule” rule. FRCP can trump rules if it’s on point. Articulates twin aims of Erie as avoiding forum-shopping and avoiding inequitable administration of laws. Harlan concurrence: See if the rule would alter the “primary conduct” of the people in the state.
• Gasperini v. Center for Humanities: Rules that FRCP 59 is not on point as to standard of review for appeals courts of jury awards (i.e. state law controls there), but for whether they should be de novo (state law) or abuse of discretion (federal law), federal law controls. Cite 7th Amendment concerns.
• Shady Grove Orthopedic Assocs. P.A. v. Allstate Ins. Co.: Plurality says FRCP 23 precludes any limitations on class actions by state law. Different group says it should be construed narrowly and is not on point. Stevens (concurring in judgment) says that you should assume federal law does not supplant state law, but if it does and it affects substantive rights, construe it narrowly so that it doesn’t.

Alternative proceedings (Hamdi, right to a lawyer, arbitration, Germany, etc.)

• Matthews v. Eldridge, US (1976): Three-prong test for alternative proceedings for Due Process: (1) private interest that will be affected, (2) risk of an erroneous deprivation and available use/value of additional safeguards, (3) government’s interest including minimizing administrative/fiscal burdens.
• Hamdi v. Rumsfeld, US (2004): Enemy combatant case. Applied Matthews. Might need to fashion an ad hoc proceeding in which accused has burden of proof, but has ability to rebut evidence. Proceedings before a neutral decisionmaker.
• Turner v. Rogers, US (2011): Family court case. Three interests here: (1) Ability to pay, (2) Asymmetry of representation, (3) Available substitute procedural safeguards.

Civil Procedure — Full Outline

Personal jurisdiction

• General jurisdiction:
  • Individuals:
    • Mas v. Perry, 5th (1974): Individuals’ domiciles are where they live as long as they intend to reside there.
    • Individuals are subject to general PJ when they are present in the state.
      • Burnham v. Superior Court, US (1990): “Tag jurisdiction” is allowed.
        • Plurality opinion: based entirely on traditional notion of being present in state.
        • Brennan, Marshall, Blackmun, O’Connor: Uses Shaffer analysis instead.
      • Wyman v. Newhouse, 2nd (1937): Luring via fraudulent means is not allowed.
  • Corporations:
    • Place of incorporation or where they are “at home”
    • Continuous substantial/systematic test:
      • Jurisdiction found:
        • International Shoe, Co v. Washington, US (1945): Basic verbiage, including “minimum contacts” for specific jurisdiction.
        • Perkins v. Benguet Mining: “Continous and systematic presence in a state” exposes corporation to general PJ, even if it’s temporary (CEO moves to OH temporarily).
        • Bryant v. Finnish Nat’l Airlines, NY (1965): Finnish company rents small office with a few employees for publicity and advertising purposes in NYC. Does not sell tickets.  Maintains a bank account in NYC. “Should be enough.” (Probably not good law anymore.)
      • Jurisdiction not found:
        • Helicopteros Nacionales de Colombia v. Hall, US (1984): Helicopters purchased in TX, contract negotiated by CEO in TX, employees trained in TX. Not enough for jurisdiction in TX.
        • Goodyear Dunlop Tires Ops., S.A. v. Brown, US (2011): Stream of commerce (see specific PJ) cannot be sole reason for general PJ.
        • Daimler AG v. Bauman, US (2014): Federal district court does not have jurisdiction over foreign plaintiffs and defendants arising out of conduct outside of the US.
• Specific jurisdiction:
  • “Minimum contacts test”: Same for individuals and corporations
  • Basic/miscellaneous examples of jurisdiction not found:
    • Hanson v. Denckla, US (1958): PA resident incorporates family trust in DE with DE trustee. Owner moves to FL and dies. FL probate court lacks minimum contacts/ties for PJ over DE trustee.
    • Shaffer v. Heitner, US (1977): International Shoe standards apply to in rem jurisdiction as well as in personam. Defendant’s stock ownership in DE corporation is insufficient for minimum contacts, because DE statute asserts that power solely due to ownership. (Subsequently, DE passed a law asserting PJ based on fiduciary duty of corporate officers/directors. DE case in 1980 held this constitutional.)
    • Kulko v. Superior Court, US (1978): NY father sued by former wife (CA resident) for divorce, full child custody, and increased child support because father consented to daughter moving to CA. No PJ in CA.
    • Daimler AG v. Bauman, US (2014): Foreign plaintiffs were suing foreign company for acts occurring outside the US. PJ not found. Theory was through connection of foreign company’s subsidiary in the US (US subsidiary in a different state).
      • “Even assuming that the state was the home of the U.S. subsidiary and that its contacts with the state were imputable to the corporation, the corporation's slim contacts with the state were not so continuous and systematic as to render the corporation essentially at home in the state and subject to suit in the state for claims of the foreign residents for conduct which did not occur in or impact the state. Further, neither the corporation nor the U.S. subsidiary were incorporated or had a principal place of business in the state, which were paradigm bases for general jurisdiction, and the transnational context of the dispute implicated risks to international comity from the broad assertion of general jurisdiction.”
  • Intentional torts:
    • Jurisdiction found:
      • Keeton v. Hustler, US (1984) and Calder v. Jones, US (1984): PJ found in defamation lawsuits where high circulation in state or particular injury in state (libel is relatively local).
        • Minimum contacts inquiry focuses “on the relationship among the defendant, the forum, and the litigation.”
    • Jurisdiction not found:
      • Walden v. Fiore, US (2013): Conduct of GA police officer occurring in GA does not give NV PJ over him just because plaintiffs had connections to NV.
  • Contracts:
    • Jurisdiction found:
      • McGee v. International Life Ins. Co., US (1957): CA resident purchased insurance policy from AZ company, later acquired by defendant. Premium notices received and paid in CA. Suit brought by beneficiary in CA, defendant defaulted. CA judgment must be enforced even though defendant had no office or agent in CA and did not solicit business there except with this one account. “It is sufficient that for purposes of due process that the suit was based on a contract which had substantial connection with the state … California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.”
      • Burger King Corp v. Rudzewicz, US (1985): Franchise agreement had choice of forum clause in FL (and FL long-arm statute enforces FL law if contract broken there).
      • “Jurisdiction is proper […] where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State.” (emphasis in original)
      • “An individual's contract with an out-of-state party cannot alone automatically establish sufficient minimum contacts in the other party's home forum. Instead, the prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing, must be evaluated to determine whether a defendant purposefully established minimum contacts within the forum.” (emphasis in original)
      • Carnival Cruise Lines v. Shute, US (1991): Choice of forum enforced in contract purchased with ticket, even though it’s a standard form contract. Defendant’s convenience emphasized, as well as reduction in price for all riders. Dissent points out unlikelihood that consumer read or understood the contract.
  • Stream of commerce:
    • Jurisdiction found:
      • Gray v. American Radiator & Standard Sanitary Corp., IL (1961): Defective water heater valve manufactured by out-of-state corporation subjected corporation to PJ in IL even though the company did no business there.
    • Jurisdiction not found:
      • World-Wide Volkswagen Corp. v. Woodson, US (1980):
        • Foreseeability not “wholly irrelevant” but “defendant’s conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled to court there.”
        • Justice Brennan dissents
        • 5 constitutional fairness/reasonableness factors
          • Burden on defendant
          • Forum state’s interest in adjudicating the dispute
          • Plaintiff’s interest in convenient/effective relief
          • Interstate judicial system’s interest in efficient dispute resolution (“flooding the dockets” problem)
          • Policy interests of other states resolving the dispute.
      • Asahi Metal Industry Co. v. Superior Court, US (1987):
        • Asserting jurisdiction against Asahi would violate “fair play and substantial justice”
        • O’Connor + 3: “Stream of commerce” does not apply unless defendant “purposely directed” sales to forum state
        • Brennan + 3: “Stream of commerce” = “regular and anticipated flow of products from manufacturer to distribution to retail sale” suffices if defendant was “aware” that the product was marketed in forum state.
        • Stevens + 2: Volume, value, hazardous nature relevant in test
      • J. McIntyre Machinery, Ltd. v. Nicastro, US (2011):
        • Plurality: “Sovereign by sovereign analysis” is required. Defendant must have “engaged in conduct purposefully directed at” forum state. Foreseeability is not enough.
        • Concurrence: A single isolated sale is not enough to establish PJ. Reject rigid rule that requires intention to submit to sovereign.
        • Dissent: Defendant purposely intended to develop markets in US. Subject to jurisdiction anywhere where the product caused injury.
  • Cyberspace:
    • Jurisdiction found:
      • Maritz, Inc. v. Cybergold, Inc., E.D. MO (1996): Defendant had web site with electronic mailbox with ads going there. Website is not passive.
      • Inset Systems, Inc. v. Instruction Set, D. CT (1996): CT company sued MA company for TM infringement. Defendant had website with toll-free number. Jurisdiction because it was "continuously available" in CT.
      • CompuServe, Inc. v. Patterson, 6th Cir. (1996): TX resident uploads files to server in OH. "Deliberate and repeatedly" transmits files there. "Purposefully directed his business activity toward Ohio by knowingly entering into a contract with an Ohio resident [the company]". Jurisdiction found.
      • Zippo Mfg. Co. v. Zippo Dot Com, D. PA (1997): Jurisdiction found because defendant defendant was selling active subscriptions to customers in PA and had active contracts with ISPs there.
    • Jurisdiction not found:
      • Pres-Kap. Ins. v. System One, Direct Access, Inc., FL (1994): Defendant leases servers in FL to plaintiff. Contract is in NY, only contact is with servers and making payments. Consumer is being sued in FL. No jurisdiction.
      • Bensusan Restaurant Corp. v King, 2nd Cir. (1996): TM infringement between NO and MO clubs. Defendant only has information with schedules, no way to book tickets, etc. No jurisdiction.

Subject-matter jurisdiction

• Cannot be waived by either party or by the court.
• Court can dismiss for lack of SMJ any time throughout the trial (including during appeals).

• Diversity jurisdiction
  • Original jurisdiction:
    • 28 USC § 1332(a): District courts have original jurisdiction of all civil actions if
      • “matter in controversy exceeds […] $75,000, exclusive of interests and costs”
      • (1) citizens of different States and (2)-(4) some foreign technicalities/details.
        • Grupo Dataflux v. Atlas Global Group, Lp., US (2004): Diversity jurisdiction destroyed (at time of filing) by aliens on both sides. No SMJ. §1332(a)(2)
        • Tango Music, LLC v. DeadQuick Music, Inc., 7th Cir. (2003): “the presence of foreigners on both sides of a diversity case does not destroy diversity” so long as there are properly diverse United States citizens on both sides of the case. §1332(a)(3).
    • Individuals are citizens of state where domicile is if US citizens. Note §1332(a)(2) technicalities for legal aliens. (Mas v. Perry)
    • 28 USC § 1332(c)(1): Corporations are citizens of states where they are incorporated and where their principal place of business is.
      • Hertz Corp v. Friend, US (2010): PPB is “place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities.” “Nerve center”. “Typically […] found at a corporation’s headquarters.”
      • Central W.V. Energy Co. v. Mountain State Carbon, LLC, 4th Cir. (2011): PPB is MI: Although all day-to-day operations are in WV, the officers maintain offices in MI. No directors in WV but some are in MI. Corporate filings list PPB as MI.
    • Must have complete diversity.
    • Diversity relevant only at time of filing. Reaffirmed harshly in Grupo Dataflux.
    • Party invoking diversity jurisdiction has burden of proving it.
  • Removal:
    • 28 USC §1441(b): Removal from state court. Only allowed if none of the defendants are citizens of state court.
    • Federal court can remand back to state court.

• Federal question
  • 28 USC § 1331: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
    • Federal law must have a “substantial and direct” bearing on the case.
    • States have concurrent power.
      • 28 USC §§ 1333, 1338: Examples of exclusive federal jurisdiction (admiralty, copyright)
    • “Well-pleased complaint”:
      • Louisville & Nashville R.R. Co. v. Mottley, US (1908): Couple bringing federal suit against railroad for specific performance of contract granting free rides. RR stopped giving free rides after Congress passed a statute outlawing it. Complaint did not allege federal law, merely presumed it as defense. Not well-pleaded.
    • Mixed cases:
      • If the state tort law standard of liability is affected by a claim that federal regulatory standards have been violated, then federal issues are a necessary part of the plaintiff’s prima facie case.
      • Merrell Dow Pharmaceutical v. Thumpson, US (1986):
        • “We […] conclude that the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.”
        • Supreme Court “can always review the decision of a federal issue in a state cause of action.”
      • Grable & Sons Metal Products, Inc v. Darue Engineering & Mfg., US (2005):
        • Case turns basically entirely on dispute over aspect of federal tax law (no private right of action).
        • The “state law claim [must] necessarily raise a stated law issue, actually disputed and substantial which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.”
        • “Merrell Dow should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the ‘sensitive judgmenets about congressional intent’ that §1331 requires.”
        • “[T]he national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal, which would not distort any division of labor between the state and federal courts.”
    • Private rights of action:
      • Alexander v. Sandoval, US (2001): Very high threshold for finding implied right of action. Title VI has no private right of action:
        • Private right is irrelevant unless there is also a private remedy.
        • If a statute focuses on regulatory authority “rather than the individuals protected [it] create[s] no implication of an intent to confer rights on a particular class of persons.”
        • Where a statute provides for one method of enforcement expressly, courts must conclude that “Congress intended to preclude others.”

• Supplemental jurisdiction
  • Gives federal courts subject-matter jurisdiction when they normally would not have it.
  • Pendant claim jurisdiction common law:
    • United Mine Workers v. Gibbs, US (1966): Strike by UMW. Gibbs had contracts with the coal company that UMW was fighting. Gibbs thought that UMW was improperly violating his business with the company. Claims:
      • #1 UMW violated federal labor law
      • #2 Same action by UMW violated state law (no diversity law)
        • Court holds that there is “pendent” jurisdiction here, because there is essentially one question. Court could exercise jurisdiction, but has discretion. Gibbs test:
          • (1) Whether the jury would be unduly confused
          • (2) Other factors that might weigh against hearing the state claim in federal court, such as
            • whether the federal claim is insubstantial
            • whether the claims would ordinarily be tried together
  • Pendent party jurisdiction common law:
    • Finley v. United States, US (1989):
      • A plaintiff is suing a defendant in federal court and a defendant in state court (no federal question), arising out of the same facts. Can the state claim be brought in federal court? Supreme Court holds no.
    • Owen Equip. v. Kroger, US (1978):
      • Plaintiff (state A) v. Defendant (state B) for damages. Defendant impleads 3rd party X (state A). Plaintiff asserts claim against X (FRCP 14 allows this). But now there is no diversity. Held: No diversity, no “ancillary jurisdiction” (basically same idea for us).
    • Ortega v. Star-Kist, 1st Cir. (2004): Plaintiff 1 in a diversity case meets the monetary requirement. Plaintiff 2 does not. Court can apply supplementary jurisdiction for P2.
    • Exxon Mobil Corp. v. Allapattah Services, Inc., US (2005): Class action based on diversity. Does court have jurisdiction over plaintiffs whose claim are less than $75,000? Under prior law, it would not. Court says yes.

• • 28 USC § 1367:
    • (a): Codifies Gibbs. “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III”
      • But also expands and overrules Findley! “Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”
    • (b): Some restrictions: If brought only under 28 USC § 1332 (diversity and minimal amount in controversy):
      • No supplementary jurisdiction over defendants brought in by FRCPs 14 (third-party), 19 (required party), 20 (permissive party), or 24 (intervention).
      • No supplementary jurisdiction over plaintiffs brought in by FRCPs 19 (required party) or 24 (intervention).
    • (c): Courts have discretion to to decline in some cases.

Venue

• Purely statutory
• 28 USC § 1391:
  • (b): Venue is proper in…
    • (1) If all defendants live in the same state, in any district in that state.
    • (2) Where most of the events took place, or property in dispute is located.
    • (3) Otherwise, any district in which any defendant is subject to PJ.
  • (c): Residency for purposes of venues
    • (1) Individuals reside in district where they are domiciled.
    • (2) Corporations reside in…
      • If defendants, in any judicial district in which they are subject to PJ.
        • If multiple districts in state, then each district is treated as a separate state (§1391(d)).
      • If plaintiffs, only where it maintains its principal place of business.
• Change of venue:
  • Transfer must be to venue that would have been proper and where there is PJ.
  • 28 USC § 1404: Transfer of venue for convenience. “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.”
    • Court can transfer sua sponte (Republic of Bolivia v. Philip Morris Companies, Inc., S.D. TX (1999)).
    • Substantial weight to plaintiff’s choice of venue.
    • Atlantic Marine Constr. Co. v. U.S. Dist. Ct. Western Dist. Texas, US (2013):
      • Forum selection clause should be enforced under §1404(a). Plaintiff’s choice of forum bears no weight, only public policy concerns. Almost always should be enforced.
      • In this case, original forum’s conflicts laws do not apply.
      • If forum selection clause points to foreign state or foreign government court, must dismiss for foreign non conveniens.
  • 28 USC § 1406: Transfer of venue to cure defect. “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”
    • Goldlawr, Inc. v. Heiman, US (1962): §1406 transfer can be used to cure personal jurisdiction defect.
    •  
• FRCP 12(b)(3): Motion to dismiss for improper venue. May be waived under FRCP 12(h)(1).
• Multidistrict litigation: 28 USC § 1407: Complex litigation can be transferred to a particular venue by recommendation of a special committee.

• Choice of law law:
  • Every state has “choice of law” based on events occurring in multiple states.
  • During venue transfer, law about which state’s choice of law applies.
  • Sweet plan: file action in venue that is favorable but inconvenient. Then move to convenient venue. Get first venue’s favorability and second venue’s convenience.

Forum non conveniens

• Discretionary power when forum transfer cannot occur (transfer between states or to foreign court).
• Piper Aircraft Co v. Reyno, US (1981):
  • Administratix of decedent Scottish residents filed suit against manufacturer of airplane. Propellers of plane were manufactured in Ohio. Plane registered in UK, owned and operated in UK, and its wreckage remnants are now in UK.
  • While UK suit is going on, plaintiff files suit in CA. Defendant removes to C.D. CA. Transfers to M.D. PA under § 1404(a). Move to dismiss for forum non conveniens. Apply these factors:
    • Private interest of litigants:
      • Relative ease of access to sources of proof
      • Availability of compulsory process for attendance of unwilling witnesses
      • Cost of obtaining attendance of willing witnesses
      • Possibility of view of premises, if view would be appropriate to the action
      • All other practical problems that make trial of a case easy, expeditious, and inexpensive.
    • Public interests:
      • Administrative difficulties flowing from court congestion
      • “local interest in having localized controversies decided at home”
      • interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action
      • the avoidance of unnecessary problems in conflict of laws or application of foreign laws
      • unfairness of burdening citizens in an unrelated forum with jury duty
    • Don’t give even substantial weight to less favorable law in foreign forum.

Summons

• FRCP 4: Detailed rules about how defendant must be summoned.
• Mullane standard for service disputes:
  • Mullane v. Central Hanover Bank & Trust Co., U.S. (1950): Notice must be "reasonably calculated" to appraise interested parties. (Publish in a newspaper if you don't know whereabouts—beneficiaries of a trust fund.)
  • Greene v. Lindsey, U.S. (1982): Posting notice on the door of a tenant's house when it is being repossessed does not provide adequate notice. Takes into account specifics of situation. Dissent points out problems with letting landlord’s costs accrue.
  • Mid-Continent Wood Product v. Harris, 7th Cir. (1991): Insufficient service with very in-good-faith but not quite correct attempts at notice of an elusive defendant, including contacting prior attorney. A district court may not formulate its own test to determine whether personal jurisdiction was served (other than black letter in Rule 4).
  • Dusenbery v. United States, U.S. (2002): Sufficient service when BoP sent a prisoner certified mail regarding forfeiture of cash seized at arrest, even though prisoner never received the letter and BoP would have known that. 5-4 ruling that Mullane does not require "actual notice."
  • Jones v. Flowers, U.S. (2006): Commissioner sends letters about house being auctioned that are being returned "unclaimed." Court says they should have done something else because it was not "reasonably calculated" under Mullane if they knew mail was not being collected.

Complaint and pleading standards

• FRCP 3: First step is filing complaint with court.
• FRCP 7(a): Exhaustive list of types of pleadings allowed.
• FRCP 8(a): Standard for claim for relief.
  • (1) “Short and plain statement” of the grounds for the court’s jurisdiction.
  • (2) “Short and plain statement” of the claim showing that the pleader is entitled to relief.
  • (3) Demand for relief sought.
• FRCP 8(d): Concise and direct allegations, may be stated in the alternative. May have inconsistent claims.
• FRCP 9(b): Must state particular circumstances constituting fraud or mistake. Malice, intent, knowledge, “and other condition of a person’s mind” can be stated generally.
• Pleading standards:
  • Johnson v. City of Shelby, Mississippi, US (2014): Complaint does not need to plead a legal theory. Plaintiffs did not need to explicitly plead §1983 in their motion.
  • FRCP 12(b)(6): Motion to dismiss for failure to state a claim upon which relief can be granted.
    • Evaluated by taking all facts as true in light most favorable to plaintiff
    • Do not have to take “conclusory” facts as true.
  • Conley v. Gibson, US (1957): Poorly written complaint that union did not fairly represent black members. “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
  • American Nurses’ Ass’n v. Illinois, 7th Cir. (1986): Complaint should not be dismissed for stating invalid complaints as well as valid ones.
  • Bell Atlantic Corp. v. Twombly, US (2007): Allegations by subscribers that carriers were violating the Sherman Act could be dismissed under 12(b)(6). To survive, “allegations of parallel conduct were required to be placed in a factual context which raised a plausible suggestion of a preceding agreement rather than identical independent action.”
    • New “plausibility” standard.
    • Some elements include imminent overwhelming discovery
  • Erickson v. Pardus, US (2007): Brief per curiam that allowed more liberal pleading for pro se inmate. Possibly limited to its facts. “Plausibility” language entirely absent, overruled 10th circuit decision that complaint was merely “conclusory”.
  • Ashcroft v. Iqbal, US (2009): Plaintiff alleging defendants violated his rights for discriminatory purposes. “To state a claim based on a violation of a clearly established right, the detainee had to have pled sufficient factual matter to show that petitioners adopted and implemented the detention policies not for a neutral, investigative reason, but for the purpose of discriminating on account of race, religion, or national origin. The complaint had not nudged the claims of invidious discrimination across the line from conceivable to plausible.”
    • “Plausibility” standard from Twombly applicable to all cases, not just antitrust suits.
    • Must not be “plausible,” does not have to be “probable,” but language may suggest that “plausible” is still “more likely than not.”
    • Applied despite problem with imminent overwhelming discovery like in Twombly.
    • Rejects FRCP 9(b) permission to plead “generally”.
      • Argues that 9(b) “generally” means less particularly than the fraud requirement, not less generally than FRCP 8 requirements. In other words, can’t use 9(b) for “conclusory” statements.
  • Swanson v. Citibank, 7th Cir. (2010): Plaintiff claims that denial of a mortgage was racially based in part by loan assessment. Pleadings held sufficient.
  • Turkmen v. Hasty, 2nd Cir. (2015): Plaintiffs claim that they were unlawfully assigned to harsh incarceration on the basis of national origin and religion. Defendants included Ashcroft and Mueller. Pleadings held sufficient. Plaintiffs relied on Justice Department reports not available to Iqbal.

Response to a complaint

• FRCP 8(b): Party must admit or deny each allegation in complaint. Can deny specifically or generally. Can explain that it lacks knowledge—counts as denial. If a responsive pleading is required, failing to deny counts as admitting. If it is not required, it is considered denied or avoided.
• FRCP 8(c): Some defenses must be affirmatively stated, otherwise they will count as waived.
• FRCP 12(a)(1)(A): Defendant must serve answer within
  • (i) 21 days after being served summons
  • (ii) 60 days after waiver of summons was sent (or 90 days if outside judicial district of US)
• FRCP 12(a)(1)(B): Defendant must serve answer to counterclaim or crossclaim within 21 days after it was received.
• FRCP 12(a)(4): If you serve a motion and it’s denied, you have 14 days. If you serve a motion and you need a more definite statement, you must respond within 14 days after the more definite statement is served.
• FRCP 12(b): Defenses that can be asserted by motion. Must be made prior to response.
• FRCP 12(g): Generally, party making a motion under FRCP 12 cannot make another motion under FRCP 12 that was available before.
• FRCP 12(h)(1): Any defense in FRCP 12(b)(2)-(5) is waived by not stating it before (FRCP 12(g)(2)) or including it in a responsive pleading or amendment
• FRCP 12(h)(2): Exception to FRCP 12(g). FRCP 12(b)(6) failure, FRCP 19(b) failure, failing to state a legal defense can be raised in any pleading under FRCP 7(a), by motion on the pleadings (FRCP 12(c)), at trial.
• Fuentes v. Tucker, CA (1947): Defendant admitted to liability for wrongful death tort. Court admitted evidence showing the circumstances of the crash. Influenced jury judgment. Evidence should have been excluded because defendant admitted liability.
• Zielinski v. Philadelphia Piers, Inc., E. D. PA (1956): Denial made in good faith treated as error.
  • Plaintiff was injured when the forklift he was operating collided with another forklift. He alleged in a paragraph of his complaint that he was injured due to a collision with a forklift operated by an agent who was acting in the course of his employment with defendant. Defendant's answer contained a general denial of this paragraph, and in fact, an agent of a third party was operating the forklift at the time. However, the trial court ruled that defendant had admitted that the forklift operator was its own agent. Since defendant did not contest plaintiff's injury or the fact of the collision, it should have made a specific denial only as to the agency allegation, and the general denial was thus ineffective. Also, defendant was not permitted to amend its answer to include a more specific denial, since the limitations period as to the third party had already passed.
    
    Court agreed to instruct jury that defendant admitted operator of forklift which injured plaintiff was defendant's agent. Defendant's general denial of paragraph of complaint containing agency allegation was ineffective, since same paragraph contained other allegations defendant did not contest.
• Ingraham v. United States, 5th Cir. (1987): Defense of statutory limitations treated as affirmative defense under FRCP 8(c). Want to avoid surprise.

Amending the pleadings

• FRCP 15(a)(1)(A): Pleadings may be amended as a matter of course within 21 days after serving it.
• FRCP 15(a)(3): Response to an amended pleading is 15 days after service of amended pleading or within time remaining to serve to original, whichever is later.
• FRCP 15(c): Amendment to pleading relates back to the original pleading when
  • (A) the law that provides the applicable statute of limitation allows relation back
  • (B) the amendment “asserts a claim or defense that arose out of the conduct, transaction, or occurrence” from the original pleading

• Barcume v. City of Flint, E.D. MI (1993): Sexual harassment charges (for which statute of limitations had run) do not relate back to sexual discrimination charges in Title VII suit.

Class actions

• FRCP 23(a): Four requirements for being certified as a class:
  • Numerosity (of claimants)
  • Commonality (of claims)
  • Typicality (of representatives)
  • Adequacy (of counsel/representation)
• FRCP 23(b)(1): Class where otherwise there would be a risk of inconsistent adjudication or adjudication that would impair others to protect their interests.
• FRCP 23(b)(2): Class where the opposing party acts in a particular way towards the entire class, so injunctive/declaratory relief for the whole class is appropriate.
• FRCP 23(b)(3): Special case. Only way to get money damages:
  • Common questions of law or fact “predominate” over individual circumstances.
  • Superior to any other form of litigation.
  • Factors to consider:
    • Class members’ interests in individually controlling prosecution/defense
    • Extent and nature of any litigation already begun by/against members
    • Desirability of concentrating litigation of claims in the particular forum
    • Likely difficulties in managing a class action
  • FRCP 23(c)(2)(B): Must give appropriate notice and ability to opt out.
• FRCP 23(e): Can submit a settlement order along with the certification order.
  • (1): Court must direct notice of proposed settlement in a “reasonable manner” to class members who would be bound by it.
  • (2): Requires court approval following a hearing and a finding that the settlement is “fair, reasonable, and adequate.”

• Hansberry v. Lee, US (1940): Homeowners bringing suit against black homeowners who purchased a house whose previous owner was bought by a covenant that no part of the land should be sold to black people. Court finds the homeowners are not bound by the prior ruling because they were not parties. Procedures must “insure that those present [in action #1] are of the same class as those absent.”
  • Analogous to a commonality/typicality requirement

And, “the litigation is so conducted as to insure the full and fair consideration of the common issue.”

• • Analogous to “adequacy of representation” requirement

• Eisen v. Carlisle & Jacquelin, US (1974): Eisen sues as representative of 2,250,000 class members under 23(b)(3) seeking damages for unlawful fees imposed on “odd lot” traders. Court finds that actual notice paid by plaintiffs is required to all members.
  • Reliance more on 23(c)(2) than on Due Process.
• Phillips Petr. Co. v. Shutts, US (1985): Class action brought on behalf of 33,000 royalty owners from 11 states in Kansas state court against Phillips for unpaid interest. Defendant argues that a majority of plaintiffs did not have sufficient ties to Kansas. Court rules that they don’t need to. Instead, Due Process requires:
  • Adequacy of representation
  • “Best practicable” notice to the class members
  • Opportunity to be heard
  • Right to “opt out”

Court also remands to Kansas Supreme Court to determine applicable choice of law.

• Amchem Products, Inc. v. Windsor, US (1997): Send settlement notice via first-class mail to class, which included people who had gotten sick because of asbestos and those who might get sick later due to exposure (but were not yet sick). Court ruled that there’s a fundamental difference and they can’t be adequately represented by the same party. Because of the differences, the common issues would not predominate. The majority says that the settlement is relevant to the class certification, but dissent thinks it’s far more crucial and would give more deference to the District Court.
• Wal-Mart Stores, Inc. v. Dukes, US (2011): Plaintiff class of 1.5 million WalMart employees suing for various sex discrimination claims. Court finds they lack commonality in part because employment policy is discretionary rather than imposed store-wide. Also, no monetary relief under 23(b)(2) except possibly incidental. Some results:
  • Focus on “common answer” not just “common questions” under 23(a)(2).
  • Examination of merits in determining class certifications.
  • Burden on employment claims challenging policies based on discretion of managers.
  • Limit on monetary relief under 23(b)(2).
• Class Action Fairness Act
  • 28 USC § 1332(d):
    • Federal courts have original jurisdiction as long as (subject to some exceptions (§1332(d)(3)-(5)):
      • aggregate sum exceeds $5 million
      • any member of the class is diverse from any defendant
  • 28 USC § 1453: Makes it easier to remove class actions.
  • 28 USC § 1712: Controls attorney fees where class benefits are “coupon settlements”.
    • “coupon settlements” are basically where you get a reduced amount for the product you were suing about.
      • Most people don’t actually use the coupons.
      • Question: what is the lawyer’s fees? Based on how many coupons were offered or how many were used?
        • To some extent are influenced by how many coupons are actually used.

Joinder

• Joinder of claims:
  • FRCP 18: Very liberal. “A party asserting a claim, counterclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.”

• Joinder of parties:
  • Permissive joining of parties (FRCP 20):
    • May join as plaintiffs if both of the following hold:
      • “asserting the same right with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences”
      • “any question of law or fact common to all plaintiffs will arise in the action”
      • Mosley v. General Motors Corp., 8th Cir. (1974): Various kinds of employment discrimination (all racial) across the company “arose out of the same series of transactions or occurrences” and could be joined under 20(a).
    • May join as defendants if both of the following hold:
      • “a right to relief is asserted against them … with respect to or arising out of the same transaction, occurrence, or series”
      • “any question of fact or law common to all defendants will arise in the action”
    • Required joinder (FRCP 19):
      • (a) Person must be joined if any of:
        • No complete relief among existing parties
        • The act    ion may impair her ability to protect her interest
        • It may leave an existing party subject to double or inconsistent obligations
      • (b) If person cannot be joined, court must “in equity and good conscience,” determine whether the action should be dismissed or allowed to proceed.
      • Temple v. Synthes Corp, US (1990): Do not have to name all tort-feasors in single lawsuit. Doctor and hospital do not have to be joined by plaintiff when suing the manufacturer.

• Impleader:
  • FRCP 14: Third-party practice. A defendant may assert a claim against a nonparty “who is or may be liable to it for all or part of the claim against it.” Defendant becomes known as “third-party plaintiff” and impleaded party as “third-party defendant.”
  • Toberman v. Copas, M.D. PA (1992): Defendant impleads third-party, arguing that if defendant (aka third-party plaintiff) is found liable, then actually third-party defendant is liable. Court says this is not an appropriate use of impleader.
• Interpleader:
  • Rule interpleader (FRCP 22): Diversity required between shareholder and all claimants. Claimants need not be diverse from each other. No authority to enjoin other competing actions.
    • Venue governed by §1391.
    • Personal jurisdiction covered by FRCP 4(k) and Due Process.
  • Statutory interpleader (28 USC § 1335): Stake must exceed $500. Claimants must be diverse. Citizenship of stakeholder is irrelevant. Courts may restrain claimants from commencing other actions (§2361).
    • Venue proper in a district in which one or more claimants reside (§1397).
    • Service of process may be made anywhere in the US (§2361).
  • State Farm Fire & Casualty Co. v. Tashire, US (1967): Bus accident in CA. Multiple plaintiffs (including from different states and some Canadian) and defendants (Californian and Oregon). Insurance companies of one of the defendants commenced interpleader motion in Oregon, trying to consolidate all claims into one and preventing other actions. Court denied.
    • Deposited fund into court but it’s way too small (covers just the one defendant).
    • Can’t just prevent other unrelated parties from litigating.
  • Republic of the Philippines v. Pimentel, US (2008): Interpleader by Merrill Lynch for funds of corporation by former president of the Philippines. Two different classes suing for reparations for human rights abuses. Philippines and special commission named as well, also prosecuting claim in Philippine court. Republic and Commission plead sovereign immunity to interpleader under 19(a) and move to dismiss motion under 19(b). Supreme Court affirms.

• Intervention
  • FRCP 24: Either intervention of right (a) or permissive (b).
  • American Lung Ass’n v. Reilly, 2nd Cir. (1992): Utility companies sought to intervene in action brought against EPA for not revising standards. Wanted to intervene for EPA. Denied: interests too remote, can just participate in normal rulemaking schedule.

Claim Preclusion / res judicata

• Law of preclusion is judge-made law. “Preclusion” by itself typically just means “claim preclusion”.
• Can never preclude non-parties!

• merger: The effect of a judgment for the plaintiff, which absorbs any claim that was the subject of the lawsuit into the judgment, so that the plaintiff's rights are confined to enforcing the judgment.
• bar: A barrier to or the destruction of a legal action or claim; the effect of a judgment for the defendant <a bar to any new lawsuit>.

• valid judgment: Judgment is valid when (all of the following):
  • (1) Person bound has submitted to the jurisdiction of the court, or has been given adequate notice and opportunity to be heard
    • Determination by court that this is met is binding on parties in future litigation
    • Can be raised or waived under FRCP 12(h).
  • (2) Court has territorial jurisdiction (jurisdiction over the defendant)
    • Same notes as in (1).
  • (3) Court has subject-matter jurisdiction
• personal judgment: Judgment is personal if jurisdiction is over the person/entity as opposed to status or in rem.
• final judgment: A judgment is final if it is not tentative, provisional, or contingent and all steps in the litigation have been completed.
  • The judgment is final even if the time for appeal has not exhausted or the judgment is on appeal.
  • If the judgment is reversed it has no preclusive effect in favor of the winner below.

• Restatement (Second) of Judgments:
  • §17: A valid and final personal judgment is precluded to the following extent:
    • (1) If judgment is in favor of plaintiff, claim is extinguished and merged. New claim can arise on the judgment (§18).
    • (2) If judgment is in favor of defendant, claim is extinguished and judgment bars subsequent action on same claim (§19).
    • (3) Judgment for either party is conclusive in a subsequent action between them on the same claim, with respect to any issue actually litigated and determined, if the determination was essential to the judgment (§27).
      • See Issue Preclusion
    • Comment (d): Erroneous judgments may still be valid. If the judgment is erroneous, the unsuccessful party's remedy is to have it set aside or reversed in the original proceedings. Such a remedy may be sought by a motion for a new trial or other relief in the court that rendered the judgment, or by an appeal or other proceedings for review of the judgment in an appellate court.
  • §18: When a valid and final personal judgment is rendered for plaintiff:
    • (1) Plaintiff cannot maintain an action on the original claim, only upon the judgment.
    • (2) Defendant cannot avail himself of defenses he might have used (or did use and were unsuccessful anyway) in the judgment action.
  • §19: A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim.
  • §20:
    • (1) However, some exceptions to §19:
      • (a) If judgment is dismissal for lack of jurisdiction, improper venue, or nonjoinder/misjoinder of parties
      • (b) Nonsuit/dismissal without prejudice (voluntary by plaintiff or by court)
      • (c) By statutory provision
    • (2) Another exception to §19: if judgment rendered due to prematurity of suit or some precondition is not met, action does not bar after claim has matured or precondition is met (unless it’s precluded by substantive law)
  • §24:
    • (1) When claim is merged or barred under (§§ 17-19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
    • (2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as:
      • whether the facts are related in time, space, origin, or motivation
      • whether they form a convenient trial unit
      • whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.
  • §25: §24 applies even if plaintiff is prepared in a new action to
    • (1) present evidence, grounds, or theories of the case not presented in the original action
    • (2) seek remedies or forms of relief not demanded in the original action
  • §26(1): Exceptions to §24 that allow plaintiff to bring a new action on the same claim:
    • (a) Parties have agreed that plaintiff may split his claim
    • (b) Court in first action expressly reserved right of the plaintiff to maintain a new action
    • (c) Plaintiff was unable to rely on a particular theory or seek a particular remedy/relief because of the SMJ of the court and he wishes to seek it in the new action
    • (d) Judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory/constitutional scheme, or the scheme suggests plaintiff should be able to split his claim
    • (e) In furtherance of policy, plaintiff is able to either sue all at once or sue from time to time, and he chooses the latter
    • (f) An extraordinary reason, such as
      • Apparently invalidity of a continuing restraint or condition having a vital relation to personal liberty
      • Failure of prior litigation to yield a coherent disposition of the controversy
      • §26(2) is just about how to deal with this case
  • §86(1): Federal courts use res judicata from a state claim, using laws from that state, unless there was a scheme of federal remedies available under the second action, even if it is based on the same transaction.
• Durfee v. Duke, US (1963): Nebraska/Missouri situation. Once litigated in one state, the other state must give full faith and credit.
• Federated Dept. Stores v. Moitie, US (1981): A number of department stores sued in a federal antitrust suit. Trial court dismissed. All but two stores appealed and won on appeal. The remaining two stores brought suit in state court. Defendant removed to federal court and got case dismissed on res judicata. Appeal court reversed but Supreme Court reversed appeals court. No exception to res judicata even with change in intervening law.
• Kremer v. Chem. Constr. Corp., US (1982): Person suing company for Title VII discrimination. Referred to state agency—loses, appeals in state court—loses, appeals in federal court. Claim is precluded because
  • there was no affirmative showing of a clear legislative purpose in Title VII to deny res judicata or collateral estoppel effect to a state court judgment affirming that a claim of employment discrimination was unproved
  • the state procedures provided for the determination of such claims offered a full and fair opportunity to litigate the merits, the federal courts were required to grant full faith and credit to the state court judgment.

• Martin v. Wilks, US (1989): White firefighters sued after earlier group of white firefighters sued because (1) Due Process gives everyone the right to their day in court; (2) Accuracy requires that everyone be able to bring own evidence. Burden is on the plaintiff to join other parties rather than on the other parties to join the action.

Issue Preclusion / Collateral estoppel

• See introductory notes to Claim Preclusion
• See definitions of valid, final, and personal judgments in Claim Preclusion
• Restatement (Second) of Judgments:
  • §27: 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 issue is precluded.
    • As before, only binds parties that were parties to the original suit
  • §28: Exceptions to §27:
    • (1) Party against whom preclusion is sought could not have gotten appeal by law
    • (2) Issue is one of law and (any of the following):
      • (a) Two actions involve claims that are substantially unrelated
      • (b) New determination is warranted in order to take account of changing legal context or otherwise avoid inequitable administration of laws
    • (3) Difference in quality or extensiveness of procedures, or by factors relating to the allocation of jurisdiction between them
    • (4) Party against whom preclusion is sought had a significantly higher burden of proof in the first action; burden has shifted to his adversary; adversary has a significantly higher burden of proof than in the first action
    • (5) Clear and convincing need because of (any of the following). Very rare:
      • (a) Potential adverse impact on public interest or persons not parties
      • (b) Not sufficiently foreseeable at time of initial action that the issue would arise again
      • (c) Party against whom preclusion is sought did not have adequate opportunity or incentive to obtain a full and fair adjudication in the initial action (either because of conduct of adversary or otherwise)
  • §29: Party that is precluded from re-litigating an issue with an opposing party is also precluded from re-litigating it with a person that was not party to the original suit. In other words, offensive collateral estoppel is allowed. Only if precluded party had full and fair opportunity to litigate issue in the first suit. Circumstances to consider are those in §28 and:
    • (1) Precluding the issue would be incompatible with an applicable scheme of administering remedies
    • (2) Forum in second action affords precluded party procedural opportunities not afforded in the first forum and could likely result in a different outcome
    • (3) Person using offensive CE could have joined in the first action
    • (4) Determination that was preclusive was itself inconsistent with another determination of the same issue
    • (5) Determination that was preclusive may have been affected by relationships among the parties to the first action that are not present in the subsequent action, or was based on a compromise verdict/finding
    • (6) Precluding the issue may complicate determinations of issue in the second action or prejudice the interests of another party in it
    • (7) The issue is one of law and precluding it would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it is based
    • (8) Other compelling circumstances
  • §86(2): Federal courts use res judicata from a state claim, using laws from that state, unless doing so would be incompatible with a scheme of federal remedies which contemplates that the federal court may make an independent determination of the issue.
• Compulsory counterclaims:
  • RSJ §22(2): If a defendant did not raise a required counterclaim in the first action, he is precluded from doing so in the second if:
    • (a) Counterclaim is compulsory because of statute or rule
    • (b) The relationship between the counterclaim and the plaintiff's claim is such that successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action.
  • FRCP 13(a): Compulsory counterclaims
    • (1) A pleading must state as a counterclaim any claim that:
      • (A) arises out of the same transaction or occurrence
      • (B) does not require adding another party over whom the court cannot acquire jurisdiction
    • (2) Exceptions to (1)
      • (A) when action was commenced, the claim was the subject of another pending action
      • (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
• Commissioner of Internal Revenue v. Sunnen, US (1948): President of corporation was inventor and patentee. He licensed some patents to the corporation (of which he owned 89%) and got royalties. He assigned some of these licenses to his wife. Tax court ruled that some of these licenses were part of his taxable income and some were not. Law changed. Tax court held that prior decision by board of tax appeals precluded the issue. Supreme Court reversed. No issue preclusion if law changed.
• Parklane Hosiery Co v. Shore, US (1979): Allowed offensive CE (killed “mutuality”). Shareholder suit against company. Before trial, SEC filed its own suit. Plaintiff couldn’t join in the original suit.
• Taylor v. Sturgell, US (2008): Failed FOIA lawsuit by a person does not preclude identical claim by their friend. Nonparticipating parties cannot be bound by “virtual representations”. Specific exceptions fit into categories:
  • Parties agreeing to be bound
  • Preexisting substantive legal relationships (preceding/succeeding owners of property, bailee/bailor, assignee/assignor)
  • Adequate representation (e.g. class action, suits brought by trustees, guardians, and other fiduciaries)
  • If nonparty “assumed control” over prior litigation
  • If original suit was by a “designated representative” or lawsuit “through a proxy”
  • Specific schemes that are consistent with due process (e.g. bankruptcy proceedings, probate proceedings)

Policing the pleadings

• FRCP 11:
  • (a) Every pleading, written motion, etc. must be signed.
  • (b) By presenting something to the court (signing it, filing it, or later advocating for it), attorney/party certifies that “the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances”, all of the following:
    • (1) it is not being presented for any improper purpose (e.g. harass, cause unnecessary delay, or needlessly increase the cost of litigation)
    • (2) claims, defenses, etc. are warranted by existing law or by a nonfrivolous argument for changing the law
    • (3), (4) claims/denials have evidentiary support or will likely have evidentiary support after a discovery
  • (c) Court may impose sanctions on attorney or party for violating FRCP 11(b), on its own or by motion.
    • Party has 21 days to retract the thing that is being challenged.
    • Court may award expenses to prevailing party. Sanction “must be limited to what suffices to deter.” May include financial or non-financial penalties. Can’t be financial:
      • (5)(A) If it’s for FRCP 11(b)(2) against a represented party
      • (5)(B) On its own, unless it issued a “show us why we shouldn’t sanction you order” first and THEN the other party voluntarily dismissed their motion.
  • (d) Does not apply to disclosure, discovery, responses, objections, and motions (FRCP 26-37).
• Business Guides, Inc. v. Chromatic Commc’ns Enters., US (1991): Case in which one side sued another for stealing their business guides that had fake numbers (like cartographer markings). Lawyers sanctioned for not conducting an (objectively) reasonable inquiry before filing suit.
  • “The essence of Rule 11 is that signing is no longer a meaningless act; it denotes merit.”
• Christian v. Mattel, Inc., 9th Cir. (2002): Lawsuit against Mattel for allegedly copying a doll design that was made after Barbie. Appellate review is abuse of discretion.
  • Two-pronged inquiry: (1) Whether the complaint is legally or factually “baseless” (objective), and (2) if the attorney has conducted “a reasonable and competent inquiry” before signing/filing.
    • No abuse of discretion in finding meritless claim by attorney
  • Court included some behavior that doesn’t apply, including discovery abuses, oral argument, conduct in other litigation.
  • Court has “inherent authority” to sanction, but to do so must “make an explicit finding that counsel’s conduct constituted or was tantamount to bad faith.”
• Saltany v. Reagan, D.C. Cir. (1989): Lawyer filing suit against UK on behalf of Libyan victims. Lawyer sanctioned because it was frivolous. No abuse of discretion for award of monetary damages.

Discovery Procedure and Rules

• FRCP 26(a)(1): Required initial disclosure
  • (A) Party must disclose:
    • (i) Name, contact information of each individual likely to have discoverable information
    • (ii) Copies of documents that will be helpful
    • (iii) Computation of each category of damages claimed
    • (iv) Insurance agreement
  • (B) Specific things exempt from disclosure
  • (C) Disclosure must occur within 2 weeks after FRCP 26(f) conference
• FRCP 26(a)(2): See Experts for disclosure of expert testimony
• FRCP 26(a)(3):
  • (A) Party must provide
    • (i) Name, address, telephone of each witness, identifying which will be testifying
    • (ii) Designation of those that will be presented by deposition
    • (iii) Identification of each document or exhibit
  • (B) Disclosures must be made at least 30 days before trial.

• FRCP 26(b)(1): Discovery scope
  • Non-privileged material that is
  • Relevant to any party's claim or defense:
    • [December 1, 2015 ONWARDS]: and is proportional to the needs of the case,
      • considering the importance of the issues at stake in the action,
      • the amount in controversy,
      • the parties’ relative access to relevant information,
      • the parties’ resources,
      • the importance of the discovery in resolving the issues,
      • and whether the burden or expense of the proposed discovery outweighs its likely benefit.
      • Also, discoverable information does not necessarily need to be admissible as evidence.
    • [PRIOR TO December 1]: including
      • existence, description, nature, custody, condition, and location of any documents/things
      • identity and location of persons who know discoverable matter.
      • For good cause, court may order discovery of any matter relevant.
        • Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
        • All discovery subject to limitations in FRCP 26(b)(2)(C).
• FRCP 26(b)(2): Court may set some limits
• FRCP 26(b)(3): See Privilege for discovery of privileged information
• FRCP 26(b)(4): See Experts for discovery of expert testimony
• FRCP 26(b)(5): See Privilege for asserting privilege in discovery of information
• FRCP 37(a)(1)-(3): Parties can compel disclosure with costs.
• Blank v. Sullivan & Cromwell, S.D.N.Y. (1975): Information about how associates make partner does not bear directly on how associates are hired, but it is related to the subject matter and could lead to admissible evidence.

Privilege

• FRCP 26(b)(3): Documents prepared for trial
  • (A) Party may not discover documents and tangible things that are prepared in anticipation of litigation, unless
    • (i) Otherwise discoverable under FRCP 26(b)(1)
    • (ii) Party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
  • (B) If court orders discovery, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
  • (C) Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. A “previous statement” is either:
    • (i) a written statement that the person has signed or otherwise adopted or approved
    • (ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.
• FRCP 26(b)(5): Claiming privilege or protected trial-preparation materials
  • (A) If a party claims that information is privileged or made for trial preparation it must
    • (i) do so by explicit motion and
    • (ii) explain what it is (without giving it away) so other can assess the motion
  • (B) If information produced during discovery is subject to a claim of privilege/trial-preparation material, the party who got it has to destroy it.
• Hickman v. Taylor, US (1947): Interviews made of tugboat survivors were protected as attorney impressions even though they weren’t written down.
• Upjohn Co. v. United States, US (1981): Internal inquiry into bribes case. Corporation’s attorney-client privilege applies to all employees at any level—not just those with decision-making power. Note that the facts themselves are not protected, but the communication of the facts is.

Experts

• FRCP 26(b)(4)
  • (A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial.
    • If a report is required under FRCP 26(a)(2)(B), then deposition can only happen after report.
  • (B) Drafts of any reports or disclosures are protected under FRCP 26(b)(3)(A) and (B).
  • (C) Any communication about report is protected, except:
    • (i) as to compensation of expert witness
    • (ii) insofar as they identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed
    • (iii) insofar as they identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed
  • (D) Party may not depose expert witness who has been retained to prepare for trial but who is not testifying, except:
    • (i) As an examiner’s report situation (FRCP 35(b))
    • (ii) Exceptional circumstances
  • (E) Unless manifest injustice would result, court must require that party seeking discovery
    • (i) pay the expert a reasonable fee for time spent in responding to discovery under FRCP 26(b)(4)(A) or 26(b)(4)(D)
    • (ii) For discovery under FRCP 26(b)(4)(D) also pay the other party
• FRCP 26(a)(2):
  • (A) Party must disclose identities of expert witnesses
  • (B) Disclosure must be accompanied by a written report (prepared and signed by the witness) if the witness is one who is retained or specially employed to provide expert testimony. Report contains:
    • (i) Complete statement of all opinions of the witness (that will be expressed) and their basis
    • (ii) Facts or data considered by the witness
    • (iii) Any exhibits to summarize facts/data
    • (iv) Witness’s qualifications, including a list of all publications within the last 10 years
    • (v) A list of all cases from the past 4 years where the witness testified as an expert
    • (vi) Compensation to be paid
  • (C) Sometimes witnesses don’t have to provide a report, then disclosure is shorter
  • (D) Disclosure must be made
    • (i) At least 90 days before trial
    • (ii) If evidence is solely to rebut evidence on the same subject-matter identified under FRCP 26(a)(2)(B) or (C) within 30 days of the other party’s disclosure
• Cordy v. Sherwin-Williams Co., D.N.J. (1994): Witness disqualified after “switching sides”. The court can disqualify expert that other side retained previously, if (1) it was reasonable for first party to believe a confidential relationship existed and (2) the first party did disclose confidential information to the expert. If these 2 conditions met, then balance policy objective of:
  • (1) preventing conflicts of interest and (2) maintaining integrity of judicial process vs.
  • (1) ensuring access to expert witnesses and (2) allowing experts to pursue their professional calling
  • Want to make sure first party does not retain an expert just to keep him from testifying against them.

• Coates v. Duffer’s Golf Ctr., Inc., D. MA (2007): Exception to witness privilege when it could be used for “expert shopping”. Important for a jury to hear from experts that might disagree with the party.
• Coates vs. Cordy: Illustration of competing values: search for truth versus confidentiality/privacy.

Summary judgment

• FRCP 56:
  • (a) Party may move for S.J. Court shall grant if the movant shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
    • Court must state on the record reasons for granting or denying the motion.
  • (b) May file any time until 30 days after close of discovery.
  • (c)
    • (1) Party asserting either that a fact is genuinely disputed or cannot be must support with:
      • (A) particular parts of materials on record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers
      • (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
    • (2) Party may object that the material is not admissible as evidence
    • (3) The court only has to consider cited material, but may consider other evidence on record.
    • (4) Affidavits or declarations must:
      • Be made on personal knowledge
      • Set out facts that would be admissible in evidence
      • Show that the affiant or declarant is competent to testify on the matters stated
  • (d) If the nonmovant shows that for whatever reason it cannot present essential facts, court may
    • (1) defer considering the motion or deny the motion
    • (2) allow time to obtain the materials the party needs
    • (3) issue another appropriate order
  • (e) If a party screws up 56(c), court may do any of:
    • (1) give an opportunity to properly support/address the fact
    • (2) consider the fact undisputed for the purposes of S.J.
    • (3) grant S.J.
    • (4) issue another appropriate order.
  • (f) Court may grant S.J. even without a motion as long as it gives notice and time to respond. It can do so on grounds not raised by a party.
  • (g) Even without granting S.J., court can still note facts that are no longer considered in dispute.
  • (h) Court may order a party submitting affidavit or declaration in bad faith to pay attorney fees. Can also be held in contempt, etc.
• Adickes v. S.H. Kress & Co., US (1970): White schoolteacher came in protest with black students to a Mississippi restaurant. Kicked out. Alleging conspiracy between restaurant owner and police. Police presence in restaurant is disputed and material because it could help establish conspiracy. She had allegations in her complaint, a statement in a deposition, and an unsworn statement by an employee.
  • Comments from 1963 amendments: “Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, S.J. must be denied even if no opposing evidentiary matter is presented.” I.e. movant has to establish absence of policeman in the store.
  • Allegation in complaint and unsworn statements are basically inadmissible, but without a contrary deposition from policeman, can’t ignore the statement in Adickes’s deposition.
• Celotex Corp. v. Catrett, US (1986): Woman suing that the death of her husband was caused by products containing asbestos. Defendants filed for S.J. Procedued a transcript of a deposition, a letter from an official to a former employer (planned to be introduced at trial), and letter from an insurance company.
  • FRCP 56 “mandates the entry of SJ … against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial.
    • In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.
  • Construe Adickes to literally require “‘showing’ – that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.”
  • Cannot resist a S.J. motion just by pointing to pleadings.
  • Strong emphasis on efficiency.
  • Justice White, concurrence:
    • “It is not enough to move for S.J. without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case.”
    • “A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so” in discovery. “He need not … depose his witnesses or obtain their affidavits to defeat a S.J. motion asserting only that he has failed to produce any support for his case. It is the defendant’s task to negate, if he can, the claimed basis for the suit.”
  • Justice Brennan dissent:
    • Burden of establishing nonexistence of genuine issue is on moving party. Two parts:
      • Initial burden of production. Shifts to nonmoving party if satisfied.
      • Ultimate burden of persuasion. Always stays with moving party. Need not reach this until it decides the initial burden of production has been satisfied.
    • Prima facie showing of entitlement to S.J. depends on who bears persuasion at trial.
      • If moving party bears persuasion at trial (usually if plaintiff is moving for S.J.), motion must be supported with credible evidence that entitles it to S.J.
      • If nonmoving party bears persuasion (usually if defendant is moving for S.J.), party must either
        • Submit affirmative evidence that negates an essential element of the other party’s claim, or
        • Demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of their claim.
          • Can’t just make a conclusory statement to this effect. “Such a ‘burden’ is no burden at all … would simply permit S.J. … to be converted into a tool for harassment.”
          • May require the moving party to depose the other party’s witnesses or establish the inadequacy of evidence.
          • “If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories, and other exchanges between the parties that are in the record.”
      • Justice Brennan claims that the majority agrees with him as to the above, but that they disagree in how it’s applied to the facts.
• Matsushita Elec. Indus. Co. v. Zenith Radio Corp., US (1986): Claim by American CEP manufacturers that Japanese manufacturers are committing antitrust violations by depressing prices in the US (financed by higher prices in Japan) in order to ultimately achieve oligopoly in the US.
  • Court points out economic implausibility of such a scheme (both in terms of carrying it out and in terms of the fact that many elements would hurt the Japanese companies).
  • Plaintiff says that’s fine, these are evidence of adversarial wrongdoing. Court says have to show that.
  • Claim must not be “implausible” (e.g. “one that simply makes no economic sense”. “Must come forward with more persuasive evidence to support their claim than would otherwise be necessary.”
  • Seems to be possibly limited to antitrust law? Have to take evidence in light most favorable to nonmovant, “but antitrust law limits the range of permissible inferences from ambiguous evidence in a §1 case...” Cite Monsanto Co. v. Spray-Rite Service Corp, US (1984):
    • “We should not permit factfinders to infer conspiracies when such inferences are implausible.”
    • “We held that conduct [in equipoise] does not, standing alone, support an inference of antitrust conspiracy.”
    • “To survive a motion for S.J. … a plaintiff seeking damages for violation of §1 must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.”
  • Justice Brennan dissent: Points out at least one report by an expert that contradicts Court’s assumptions about economical effects.
• Anderson v. Liberty Lobby, Inc., US (1986): Libel case.
  • Basically identical standard to FRCP 50. Judge must ask whether a fair-minded jury could rationally decide that the appropriate standard applies (e.g. in a libel case whether there is malice, etc.)
  • Judge must not “weigh the evidence,” but must bear in mind the “quantum” required and whether the “caliber and quantity” of the evidence is sufficient.
  • Justice Brennan dissents, thinks the above is impossible.
• Scott v. Harris, US (2007): S.J. granted in a case against a police officer pursuing a runaway car. Video testimony used extensively as essentially objective evidence.

Judges and juries

• Judidcial recusal:
  • Caperton v. A.T. Massey Coal Co., US (2009): Judicial election in which judge is elevated to supreme court with extreme financial backing from an appellant to the court. Supreme Court says he has to get recused: “there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”
    • Focus on size of contribution, temporal relationship between contribution and the case
    • “Objective standards may also require recusal whether or not actual bias exists or can be proved.”
• Right to a jury:
  • 7th Amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
    • Jury trial present if the case would have been tried in a common law court prior to common law-equity merger.
    • Note: 7th Amendment was never incorporated. This only applies to federal courts.
  • FRCP 38:
    • Jury trial is waived if not demanded.
    • Party may demand a jury trial “on any issue triable of right by a jury” by serving the other parties with a written demand no later than 14 days after the last pleading (can also be included in the pleading).
    • A party can also demand a jury trial on only some issues, but the other party may demand it on other remaining issues (within 14 days).
  • FRCP 39:
    • Judge can find on its own (or by motion) that there’s no right to a jury trial.
    • Court may on its own empanel a jury if it would have been allowed anyway.
    • Court can also empanel an “advisory” jury even if there’s no jury right, unless a statute says there’s no jury right.
  • Curtis v. Loether, US (1974): Title VIII (housing) discrimination claim. 7th amendment applies despite the claim arising from a statutory right. “Damages” enforcing legal rights apply because they are analogous to common law torts (e.g. housing discrimination is sort of like a common-law duty of innkeepers not to refuse temporary lodging without justification, racial discrimination is sort of like defamation or IIED). Not all financial claims are common-law: e.g. backpay is equitable. Two-part test:
    • Compare to 18th century causes of action pre-merger. If in, equipoise:
    • Look for type of remedy sought.
  • Tull v. United States, US (1987): Civil penalty is equitable, irrespective of whether the statute could be analogized to common-law tort (in this case nuisance for dumping in violation of Clean Water Act).
  • Markman v. Westview Instruments, Inc., US (1996): Question of whether “patent claims” (document describing scope of patentee’s rights) go to juries or not. No historical evidence is on point, so go to policy. Much easier for a judge to deal with this than a jury. Judge trial.
• Selecting a jury:
  • Construed as the right of a citizen to sit on a jury.
  • FRCP 47: Court may inspect prospective jurors and permit the parties/attorneys to do it. If the court does it, it must allow parties/attorneys to ask further questions or must ask their questions. Court must allow however many peremptory challenges 28 USC § 1870 allows. Court may excuse a juror for good cause.
  • FRCP 48: Jury must begin with 6-12 members. Each juror must participate in verdict unless excused. Verdict must be unanimous with at 6 jurors unless parties agree otherwise. If a party requests (or if the court wants to), it must poll the jurors. If the poll shows that they were not unanimous, court may direct for more deliberation or order a new trial.
  • 28 USC § 1870: In civil cases, each party gets 3 peremptory challenges. If there are several plaintiffs or defendants, court can decide if they’re the same or different for the purposes of peremptory challenges. Court decides if the challenge is “for cause or favor.”
  • Edmondson v. Leesville Concrete Co., US (1991): Race-based peremptory challenges are not allowed. Even though it’s a civil trial, the judge’s overseeing of the proceedings gave state authority to the challenge. Focus on courtroom as an important setting. Even though the right is of the jury member, the party member has standing to sue.
  • J.E.B. v. Alabama ex rel. T.B., US (1994): Same ruling but for gender discrimination.
• Managing the jury:
  • FRCP 49: Court can order a specific verdict. Court must give instructions. Court may ask for a special verdict but with written questions/answers. Special instructions are discretionary.
    • If the answers and verdict are consistent, court must approve.
    • If the answers are consistent with each other but not the verdict, court must give the verdict consistent with the verdict or order more deliberations or a new trial.
    • If the answers are inconsistent with each other AND the verdict, court must direct more deliberations or order a new trial.
  • FRCP 51: Party may furnish to other party written requests for written instructions. It can file requests for issues that could not have reasonably been anticipated or get permission for untimely requests. Court must inform party of its proposed instructions and also give an opportunity to object on the record.
    • Judge can even comment on the evidence (according to casebook).

Judgment as a matter of law (JMOL), RJMOL/JNOV

• FRCP 50:
  • If a party has been fully heard on an issue during a jury trial and court finds that a reasonable jury couldn’t find for them, court can rule against the as a matter of law.
  • Motion for JMOL can be made any time before the case is submitted to the jury.
  • If the court does not grant a JMOL motion, 28 days after judgment or 28 days after jury is discharged, movant may file a RJMOL or in alternative motion for new trial. Court can:
    • Allow judgment on verdict anyway (i.e. deny motion)
    • Direct JMOL (basically grant motion)
    • Order new trial
  • If court grants RJMOL, it must also conditionally rule on motion for new trial, in case verdict is vacated/reversed. Must state grounds for granting/denying new trial.
  • Motion for new trial must be filed no later than 28 days after entry of judgment.
  • If court denies RJMOL party, prevailing party may assert grounds for new trial in case appellate court reverses RJMOL denial. Appellate court may grant or not.
  • Motion for RJMOL can only be made if a motion for JMOL was also made.
• Standard for considering JMOL and RJMOL: Consider all evidence in record in light most favorable to nonmoving party. If there is evidence that reasonable triers of fact might rule for nonmoving party, deny the motion. “A mere scintilla of evidence is insufficient to present a question to the jury.” (Boeing Co. v. Shipman, 5th Cir. (1969)).
  • Court should not weigh evidence itself and rule for “better side.”
  • Court should not consider credibility of witnesses “unless no reasonable jury could believe one side of contested testimony.”
  • “An old chestnut,” Red v. San Pedro, UT (1911): Cow enters railroad either through gate or fence. In one case it’s railroad’s fault, in one case it’s farmers. Total equipoise of evidence. JMOL denied.
• Galloway v. United States, US (1943): Woman filing disability insurance claim for husband (veteran). A large gap of evidence of disability (mental issues) for 10 years. Court upholds directed verdict against her. Argues that she is in best position to present evidence. Discusses how JMOL is totally reasonable and has been used by courts in the past. Also, interprets 7th Amendment as “generally” preserving right of a jury, but not necessarily keeping totally static requirements.
  • Justice Black dissent: This amounts to weighing of the evidence. Most of the previous innovations were “demurrer to the evidence,” which is different because it essentially accepts all the evidence as given. Even then, juries technically have to decide. Discusses historical erosion of jury rights.
• Reeves v. Sanderson Plumbing Prods., Inc., US (2000): Whether prima facie case needs to be taken into account for RJMOL in age discrimination case. Court rules that all evidence must be taken but inferences made in favor of nonmoving party. Employer making JMOL motion and court considered only the evidence refuting the nondiscriminatory/legitimate arguments, not the original prima facie case.

Motion for a new trial

• FRCP 59: A court may, on motion, grant a new trial on all or some issues as follows:
  • After a jury trial, for any reason “for which a new trial has heretofore been granted in an action at law in federal court.”
  • After a nonjury trial, “for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.”
  • Court may also do so on its own for same reason it would grant a motion. Has to give notice and opportunity to be heard, and explain reasons.
  • After a nonjury trial, court may on motion open the judgment, take additional testimony, amend/make new findings of fact and conclusions of law, direct entry of a new judgment.
  • Motion for a new trial must be filed no later than 28 days after entry of judgment. Same for motion to alter or amend judgment. Court may also only do it on its own within 28 days.
  • When a motion for a new trial is based on affidavits, they must be filed with the motion.
    • Opposing party has 14 days to reply. Court may permit opposing affidavits.
• Sanders-El v. Wencewicz, 8th Cir. (1993): Plaintiff suing under §1983 for excessive force. Defense counsel admonished for “theatrics” (dropping bunch of paper and questioning witness from it). Proper review of new trial is abuse of discretion. “Improper questioning by counsel ‘generally entitles the aggrieved party to a new trial’ if such questioning ‘conveys improper information to the jury and … prejudices the opposing litigant.’”
  • Here, counsel trying to show that plaintiff has a huge rap sheet, which is well-known to be disallowed if he’s not convicted of them.
  • He was already admonished once for alluding to it, did it again with “theatrics.”
  • Circuit court finds abuse of discretion.
• Judge may disbelieve the evidence and grant a new trial in the interest of justice.
• 5th Circuit: Party who wins JMOL but does not also move for new trial waives any right to seek a new trial after appellate reversal on the merits.
• Weisgram v. Marley Co., US (2000): Plaintiff wins in products liability case. Defendant urges successfully on appeal that expert testimony was unreliable under Daubert. Without it, plaintiff would lose. May the court of appeals instruct entry of JMOL for defendant, or must it remand and leaveto district court to enter JMOL or order a new trial? Answer: appeals court has final say, but it should “be constantly alert” to the fact that district court has better “feel” for the case.
  • Question has to do with electric baseboard heater starting a fire.
  • Appeals court can enter judgment itself, grant a new trial itself, or remand for district court to decide between the two.
  • Reliance on Neely v. Eby Construction Co., US (1967). There, appeals court can JMOL if there was insufficient evidence for jury verdict. Here, can rule JMOL if evidence later removed from jury. That means party can’t argue differently.
• Jennings v. Jones, 1st Cir. (2007): Native American suing police officer over use of excessive force. District trial orders new trial. Circuit court sustains.
  • “A trial court may grant a new trial on the basis that the verdict is against the weight of the evidence. Further, ‘the district court has the power and duty to order a new trial whenever, in its judgment, the action is required in order to prevent injustice.’ When deciding whether to grant a new trial, a district court is free to independently weigh the evidence.”

Direct attacks

• FRCP 60:
• (a) Court may correct clerical mistakes by motion or on its own, without or without notice. After an appeal has been docketed and pending, though, it has to get leave from the appeals court.
• (b) “On motion and just terms, the court may relieve a party … from a final judgment, order, or proceeding for the following reasons”:
  • (1) Mistake, inadvertence, surprise, or excusable neglect
  • (2) Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial (under FRCP 59)
  • (3) Fraud, misrepresentation, or misconduct by an opposing party
  • (4) The judgment is void
  • (5) The judgment:
    • Has been satisfied, released, or discharged
    • Is based on an earlier judgment that has been reversed or vacated
    • Applying it prospectively is no longer equitable
  • (6) Any other reason that justifies relief
• (c) Motion under FRCP 60(b) must be made within a reasonable time. FRCP 60(b)(1)-(3) must be made no more than a year after the entry of the judgment or order/date of the proceeding.
• (d) This rule does not limit a court’s power to
  • (1) Entertain an independent action to relieve a party from a judgment, order, or proceeding
  • (2) Grant relief under 28 USC § 1655 to a defendant who was not personally notified of the action
    • Does not matter, random notification statute.
  • (3) Set aside a judgment for fraud on the court.
• Kupferman v. Consolidated Research & Mfg. Co., 2nd Cir. (1972):
  • First action: 1962 action, awarding damages to Kupferman (receiver of an underwriting company) for corporation's breach of an agreement. The corporation did not appeal.
  • Second action: A release that might have led to judgment for defendant in the first case was discovered in 1971.
  • Defendant moves to vacate the 1962 judgment on FRCP 60(d)(3). Can’t do the other ones because of 1-year limit. Judged not fraud on the court.
• Pierce v. Cook & Co., 10th Cir. (1975): Car crash between passenger car and truck. Driver sues and loses based on OK law. Passengers sue separately and ultimately win in OK court, which changes law. Driver moves to overturn judgment against him based on FRCP 60(b)(6) (“any other reason that justifies relief”). Wins. Somewhat narrow ruling given that it’s the exact same event.

• 1. Note that this is not relying on FRCP 60(b)(5) because the judgment is not based on an earlier judgment that has been reversed, but just on a change of law.
  2. Also, Collins v. Wichita, 10th Cir. (1958) suggests that FRCP 60(b)(5) should be granted in somewhat extraordinary situations.

Governing law in diversity cases

• 28 USC § 1652 AKA “Rules of Decision Act”: Laws of the several states shall be regarded as “rules of decision in civil action in the courts of the United States,” in cases where they apply.

• 28 USC § 2072 AKA “Rules Enabling Act”:
  • (a) SCOTUS can prescribe general rules of practice/procedure/evidence for cases in district courts and courts of appeals.
  • (b) Such rules shall not abridge, enlarge, or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
  • (c) Such rules may define when a ruling of a district court is final for the purposes of appeal.
• Swift v. Tyson, US (1841): Original rule that federal courts apply “federal common law” for substantive law but state procedural law.
• Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 6th Cir. (1926): Company reincorporates in a different state to be able to sue in diversity and apply federal common law.
• Erie v. R.R. Co. v. Tompkins, US (1938): Overrules Swift. Man walking on R.R. tracks hit by train. Sues in diversity (in NY) because federal common law would rule for him. SCOTUS rules that federal courts in diversity should apply state laws for substantive law and federal procedural laws.
• Guaranty Trust Co. v. York, US (1945): “The outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of the litigation, as it would be in tried in a State court.” If a rule is “outcome determinative,” it’s substantive law.
  • Cohen v. Beneficial Industrial Loan Corp., US (1949): Rules that the following NJ statute is “substantive”: Imposes on the plaintiff in a derivative shareholder’s suit liability for the cost of defense if he is unsuccessful. Requires security payment to court to even maintain the lawsuit.
  • Ragan v. Merchants Transfer & Warehouse Co., US (1949): KS statute of limitations is not tolled by filing a complaint in federal court despite language in Rule 3. Uses state law for this.
  • Woods v. Interstate Realty Co., US (1949): Federal court must dismiss a particular case in MS because it would be dismissed by MS law.
  • Byrd v. Blue Ridge Rural Electric Coop., US (1958): Works comp. case can be tried by jury in federal court even though it wouldn’t be in SC court. 7th Amendment concern.
• Hanna v. Plumer, US (1965): Question of whether service of process should be based on state law or federal law (FRCP). Court rules for FRCP under Rules Enabling Act. “Test must be whether the rule really regulates procedure—the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.”
  • Focus on the “twin aims of Erie.” (1) Discouragement of forum-shopping and (2) avoidance of inequitable administration of the laws.
  • “Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules.”
  • “Outcome determinative” is not a “talisman.”
  • “Rules rule” rule: A FRCP trumps state law. If none on-point, apply twin aims of Erie.
  • Justice Harlan concurrence: The test should be whether the difference in the fed and state rule would affect the “primary” conduct of people subject to it.
• Gasperini v. Center for Humanities, US (1996): Two issues of jury award review between state (NY) and federal.
  • State: new trial if “jury verdict ‘deviates materially’ from a reasonable amount.” Federal: new trial if “award ‘shocks the conscience’ of the judge.” (FRCP 59).
    • State law applies. “Scope of the federal rule must be determined with sensitivity to state substantive goals.” FRCP 59 is not on point.
  • State: appellate courts have de novo review of verdict. Fed: Appeals court may only review lower court for abuse of discretion.
    • Federal law applies. Cite Byrd. Limit on appellate review reflects 7th Amendment values.
• Shady Grove Orthopedic Assocs. P.A. v. Allstate Ins. Co., US (2010): NY law prohibits class action to recover “penalties.” FRCP 23 does not.
  • Scalia+3: Rules rule.
    • Stevens concurs with verdict. Agrees that there must be sensitivity to state law. Notes that state “procedural law” may define the scope of substantive rights. Suggests 2-step process:
      • Does the federal rule supplant the state rule? Presume not.
      • If federal rule appears to affect substantive rights, construe the federal rule narrowly to try to avoid the conflict.
  • Ginsburg+3: Sensitivity to state interest. No conflict.

Alternative proceedings (Hamdi, right to a lawyer)

What process is due?

• Mathews v. Eldridge, US (1976): Don’t need full court to deprive someone of Social Security payments. Balancing scheme: “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government's interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.”
• Hamdi v. Rumsfeld, US (2004): “Enemy combatant” held in military detention without formal charges.
  • Court finds that “detention of individuals falling into the limited category … we are considering is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”
  • No question that habeas corpus has not been suspended.
  • Weighing of private interest: “interest in being free from physical detention by one’s own government” versus public interest: “ensuring that those who have in fact fought with the enemy during a war do not return to battle against the US.”
  • “A citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government factual assertions before a neutral decisionmaker.”
    • But proceedings “may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.”    
    • “Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding.”
    • “Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.”

Right to a lawyer

• Turner v. Rogers, US (2011): Family court, indigent father incarcerated for contempt of court. Clerk uses standard form without even bothering to fill it out. Court grants cert. even though Turner has already served out his sentence (“’capable of repetition’ and yet ‘evading review’”).
  • Majority says question is not open and closed, just because it’s a civil trial.
  • Use Matthews. Three considerations: (1) Defendant’s ability to pay. (2) Worry about asymmetry of representation, if the person opposing indigent parent is not the government. (3) Available substitute procedural safeguards.
    • (a) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding
    • (b) use of the form to elicit relevant financial information
    • (c) opportunity at the hearing for the defendant to respond to statement about his financial status
    • (4) an express finding by the court that the defendant has the ability to pay