Table of Contents

Civil Procedure Overview p. 2 Contempt p. 3 Due Process p. 4-5 Remedies: Provisional Relief p. 6-7 Remdies: Final Relief p. 8 Enforcing p. 8 / p. 9 Amending the p. 12 Answers/Motions/Affirmative Defenses p. 14 p. 15 p. 17 /// p. 18 p. 20 Judge/ p. 22 Sanctions (Rule 11) p. 23 p. 25 Controlling/Overruling Jury p. 28 Personal p. 31-37 p. 38 Removal p. 39 p. 40 Notice p. 41 Subject-Matter Jurisdiction p. 42 Supplemental Jurisdiction p. 43 Issue Preclusion p. 46 Claim Preclusion p. 48 Attorneys’ Fees & Marek p. 51 Policy: Rules & Standards p. 53 Policy: Judicial Management p. 54

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PROCEDURAL RULES & JUDICIAL POWER Three philosophies governing procedure: (similar to debate about rules v. standards)  “Justice is served by predictable procedure”: It’s a predictable system, regardless of how it impacts individuals VS.  “Procedure is the servant of justice”: context of the rules should matter and take into context  The distinction between procedure and substance is not meaningful

1. Jurisdiction  most important 2. What is the that is applied in a federal court action? (Federalism) 3. Pleading  There has been a movement away easy, liberal pleading standards 4. All Forms of Joinder 5. Discovery 6. Pre- adjudication/Summary Judgment  how to get rid of cases before trial 7. Trial and Jury Control Procedures 8. Trilogy of Post-Trial Motions: New Trial, Directed Verdict/Judgment as Matter of Law, and JNOV or Renewed Judgment as Matter of Law 9. 10. Former Adjudication: Res Judicata/Claim Preclusion, Collateral Estoppel/Issue Preclusion

Cognizability (whether law will give relief for actions complained of)  : facts match up to elements of cause of action  Demand Letter (maybe)  either mediation or alternative dispute resolution (ADR)  for  Pick forum state  Which state has subject matter jurisdiction  Venue (which geographic section of the state to bring the case, typically either where alleged action took place or where D resides)  Notice to D of commencement of action (due process requires)  Check long-arm statute of the state to make sure that D can be sued for torts committed by D in another jurisdiction (p. 186)  Draft in accordance with Rules of for jurisdiction where complaint is being filed (if federal court, then Federal Rules)  Check statute of limitations  Ensure D receives  Consider whether to file joinder of causes of actions (joinder of claims in federal court) to raise multiple causes of action and/or joinder of parties to name more than one D in complaint  D can file to dismiss for failure to state a cause of action  D can file an in , in which s/he states affirmative defenses (defenses Ds have to Ps’ causes of action)  D may file against P for or relief  Impleader or third-party practice (complaint for indemnification against a third party responsible for D’s actions ; impleaders may have claims against each other, cross-claims  May be necessary parties, intervention, and class actions = more complex joinder issues  If pleadings survive initial motions, parties then engage in discovery , depositions, requests to inspect documents  Lawyers must be familiar with both federal rules, local rules, and standing orders of judges  Burden of production: party with (usually P) must have sufficiency of evidence for each element of at least one cause of action  If D feels P has not sufficiently met his/her burden, can move for judgment as a matter of law, or directed verdict If P survives motion for judgment as matter of law, P must persuade factfinder by preponderance of evidence (burden of persuasion)  After discovery, can be motion for summary judgment by either side, but usually D  Renewed judgment as matter of law (or JNOV)  Trial  After trial, verdict becomes judgment  Remedies include monetary award, injunctive relief -- temporary restraining order (prior to trial), preliminary injunctive (prior to verdict), permanent (after trial)  Appeal to intermediate, appellate court, and then supreme court  Party can file an interlocutory appeal, but not appeal the decision necessarily except as indicated below  Once final determination, res judicata applies, meaning the matter has already be adjudicated and decided, even if P wishes to bring another claim (say, negligence instead of battery) on the same facts; aka claim preclusion  If an issue resolved in prior proceeding and becomes relevant for subsequent proceeding, the prevailing party in prior case can collaterally estop losing party from denying resolution of prior issue; known as issue preclusion (p. 192)

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CONTEMPT Enforcement of Court’s rulings. Demonstrates how procedure ultimately allocates power within system of law.

WALKER V. CITY OF BIRMINGHAM (U.S. 1967) (p. 165): City obtained ex parte TRO to forbid civil rights leaders to participate in or encourage demonstrations of Birmingham’s racial segregation. King arrested during demonstrations, sentenced to 5 days in jail, and fined $50, along with other leaders. At contempt hearing, Ps challenged constitutionality of injunction because vague and overbroad, and restrained free speech. Ps also challenged Birmingham parade ordinance process because previously administered in arbitrary and discriminatory manner. Holding: The parade ordinance was not void on its face, and the injunction was not void on its face; therefore, the injunction and resulting contempt convictions are upheld. “No man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.”  Collateral Bar Rule: Noting that MLK had not moved for injunction to be dissolved or taken further steps to apply for permit, the Court refused to consider the constitutional questions , invoking collateral bar rule: if an individual violates a court order, he or she is thereafter barred from challenging it Dissents (Warren, Brennan, Fortas, Douglas): 1. Ps not acting as judges in their own case; rather, violating injunction to challenge its constitutionality is akin to violating a statute for the same reason. a. In fact, some cases require Ps to violate the statute in question in order to establish their standing to sue 2. Birmingham parade ordinance unconstitutional on its face: different procedures for different applicants, namely applicants with whose views city commission disagree  amounts to censorship of free speech 3. Court should not place seal of approval on gross misuse of judicial process 4. Shows conflicting philosophies: Justice is Served by Predictable Procedure vs. Procedure should bend in the interests of justice.

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DUE PROCESS, COST-BENEFIT ANALYSIS, AND JUSTICE The Values of Process and Elements of a Hearing Essence of due process = right to be heard in a meaningful manner at a meaningful time before being deprived of life, liberty or property, usually the latter –“a grievous harm”

Rules/Features of Due Process: 1. Only government obligated to guarantee due process 2. Notice & Opportunity to be Heard: “At a meaningful time and in a meaningful manner” (Boddie) 3. Whether certain process is due will depend on circumstance, whether P will suffer “grievous harm” 4. Process due: a. Usually pre-deprivation hearing where party facing deprivation can challenge evidence against him/her b. Access to a lawyer will depend c. Whether filing costs, etc will be waived

Analysis: 1. Deprivation: whether 5th Amendment or 14th Amendment implicated 1. Is the government actor? (Cannot bring due process action against private citizen) 2. State or federal government  federal govt is 5th amendment; state govt is 14th amendment 2. Is there a right at stake? – Life, liberty, or property 3. What process is due? 3-part Matthews test 1. What private interests are at stake? 2. What is countervailing government interest in curtailment? 3. The amount of error to be allowed - (could be similar to one of those cases)

Due Process: Policy Debates  Process Values of Administrative Procedures (Mashaw, p. 46) o Individual dignity o Equality o Fairness  Value of Accuracy in Adjudication (Kaplow, p. 53) o Procedure has value but should be an ultimate cost-benefit analysis, there is an efficient amount of procedure (?)

GOLDBERG V. KELLY, US 1970 (p. 68) Kelly alleged violations of Due Process (14th amendment) and Social Security Act requirement for ‘fair hearing’ because of welfare dept’s practice of cutting people off welfare benefits without notice or opportunity to appeal. Subsequent to filing of complaint, NY implemented procedures for notice & hearing – plaintiffs challenge these as unconstitutional because they allowed people to appeal only after benefits had been cut. Balancing Approach: seriousness of terminating someone’s aid with the potential gov’t interests in not paying someone who is undeserving and the additional costs of having a hearing.  depriving someone of their very means to live was not justified only to save some gov’t costs. However: no need for judicial setting in pre-termination hearing if there is also an opportunity to appeal

BODDIE V. CONNECTICUT (US 1971) (p. 68) Plaintiffs are welfare recipients suing in because state of Connecticut’s requirements for payment of court fees and costs for service of process restrict their access to courts in effort to bring an action for divorce. Connecticut charges $60 - $95 to file action in court ($45) and then to serve other party ($10 to $50). 4

Holding: Due process does prohibit State from denying, solely because of inability to pay, access to courts to individuals who seek judicial dissolution of their marriages in good faith.

MATHEWS V. ELDRIDGE (US 1976) (p.39): In determining whether deprivation of disability benefits requires pre-deprivation hearing, court balances: 1. the private interest that will be affected by the official action 2. the risk of erroneous deprivation of such interest through the procedures used and the probable value of additional or substitute procedural safeguards 3. the government’s interest, including the function involved and the fiscal and administrative burdens that additional procedural requirement would entail. The court rules that the risk of erroneous deprivation does not outweigh the value of additional procedure in reducing errors, an oral hearing in this case. The deprivation, while serious, is not as serious as a welfare deprivation. Defined govt interest very differently from Goldberg v. Kelly.

LASSITER V. DEPT. OF SOCIAL SERVICES OF DURHAM COUNTY, NORTH CAROLINA (U.S. 1981) (p. 74) At hearing for termination of parental rights in NC, appellant not represented by counsel, while the state was, and hearing resulted in loss of her parental rights in 1978. Appellant’s child had been removed from her custody in 1975 after the District Court of Durham County, N.C. found him to be a neglected child and transferred him to custody of Durham County Dept. of Social Services. Appellant subsequently convicted of second-degree murder and began sentence of 25 to 40 years. State moved to remove her parental rights, in part because of her lack of contact with son during nearly two years of her imprisonment prior to hearing, the decision of which is under review here Allegation that grandmother complained that P did not care for children.  Holding: The trial court did not err in failing to appoint appellant with counsel during her hearing, which decided termination of her parental rights.

Hamdi v. Rumsfeld (US 2004) (p. 58) Hamdi = US citizen held as an enemy combatant for training with Taliban in Afghanistan, alleges violation of 5th & 14th Amendment due process – held without access to legal counsel or notice of charges against him. Applies test of Mathews v. Eldridge – war does not preclude focus on risk of erroneous deprivation of liberty. Right to be heard in meaningful time & manner cannot be eroded no matter what. DP requires:  receive notice of the factual basis for the classification  fair opportunity to rebut before a neutral decision-maker However, limitations for enemy combatant situation may be permissible – hearsay, presumption in favor of govt, etc. to accommodate Govt interest.

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REMEDIES Securing the Judgment

Two Basic Types of Provisional Relief: 1. Temporary Restraining Order 2. Preliminary Injunction

SEIZING A PERSON OR PROPERTY: RULE 64. To secure satisfaction of potential judgment Authorizes seizure of property to make sure damages are available in the event of judgment. Remedies: 1. Arrest 2. Attachment 3. Garnishments 4. Replevin 5. Sequestration

FUENTES V. SHEVIN (U.S. 1972) (p.96) Creditor obtained a writ of replevin ordering the sheriff to seize goods Fuentes bought on installment. In accordance with Florida procedure, Firestone only had to fill in the blanks on a form and post a bond. Fuentes was denied notice and any opportunity to respond. State role in signing off on writ of replevin brought this under 14th Amendment.  Property: The Court reads the concept of property broadly to extend to “any significant property interest,” thereby circumventing the problem that Fuentes did not actually have title of the property in question.  Due Process requires notice & meaningful oppty to be heard before deprivation of property under color of law. Need for DP in seizure of property

Cases in “Notes” ‐ Flagg Brothers ‐ North Georgia Finishing ‐ Connecticut v. Doehr (p. 103): defendant threatens to attach a $75,000 lien on the ’s home because of ‐ U.S. v. James Daniel Good Real Property (p. 103): some kinds of property

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INJUNCTIONS & RESTRAINING ORDERS: RULE 65. Restrains D’s activity during litigation

Preliminary Injunction – Rule 65(a) 1. For duration of litigation 2. Cannot be granted without notice to adverse party 3. Four (4) elements 1. Plaintiff needs to show that damages down the road will be insufficient and they will suffer irreparable harm if relief not given 2. Plaintiff has to show its irreparable harm will outweigh defendant’s irreparable harm 3. Plaintiff has to show that it has a likely chance of prevailing on the merits 4. Plaintiff has to show that injunction is in the public interest, in the interest of justice o In ACLU,

Temporary Restraining Order -- Rule 65(b). “Quick and dirty solution” 1. Lasts 10 days and can be renewed 2. Can be issued ex parte only if moving party shows immediate and irreparable damage would result from affording other party opportunity for hearing. 3. TRO is for immediate action when things are going to change; cannot wait for other party and their lawyer (i.e. cutting down trees in the rainforest) 4. Two (2) elements: 1. Immediately irreparable harm (that damages would be insufficient relief down the road): i.e. cutting down rainforest would be irreparable harm 2. Explain and certify why is it that the other party is not there with a lawyer

US V. HALL (5th Cir. 1972) (p.11) Court ordered ex parte injunction: “anyone having notice of this order who violates any of terms thereof shall be subject to arrest, prosecution and punishment.” Court ordered sheriff to serve copies on 7 named persons, including Hall, who received constructive, not actual, notice. The doctrinal issue is contempt power – the question of whether a court has power to hold a non-party to an action in contempt.

Rule 65(d) and Injunctive Relief: Hall argues that FRCP 65(d) limits the binding effect of injunctive orders to “parties to the action, their officers, agents, servants, employees, and attorneys, and… those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Holding: Judge Wisdom evades this language by suggesting that courts may act so as to protect their ability to render judgment. Wisdom suggests that Rule 65(d) was a “codification rather than a limitation of courts’ common-law powers, cannot be read to restrict the inherent power of a court to protect its ability to render and binding judgment” especially in a school desegregation case where nonparties have an interest in the outcome. Note also that Wisdom characterizes the injunction as a temporary restraining order rather than an injunction, since a preliminary injunction would have required notice and an opportunity to be heard.

ASHCROFT V. ACLU (US 2004)(p. 105)

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FINAL RELIEF: EQUITABLE REMEDIES, , DAMAGES

Permanent Injunction = Equitable  Standard: no adequate remedy at law (v. preliminary injunction = “irreparable harm”) o is difficult to accurately calculate (ex: in Walgreen, 10 year lease is a long time to predict damages accurately) o Failure to grant injunction would result in non-quantifiable but important damages (like loss of reputation in Walgreen)  Other types of Equitable Remedies: o Consent decree: settlements negotiated by the parties but approved and enforced by the court, which retains jurisdiction over the dispute. o In an Ongoing Injunction, Court Maintains Jurisdiction: With a permanent injunction, the Court retains jurisdiction over the dispute. If a party fails to conform to an injunction, a party could ask the court to hold that party in contempt.

Legal relief (as opposed to equitable):  Nominal damages – small amount to signify that P injured by not entitled to damages, usually $1  Compensatory damages – to make the plaintiff whole  – to punish/deter egregious behavior  Declaratory relief – to clarify the law (28 US 2201) 

ENFORCING THE JUDGMENT Rule 58: obtaining a judgment Rule 70: Enforcing Judgment for Specific Act Rule 79a: entering into docket Rule 69: seek enforcement of judgment

WALGREEN CO. V. SARA CREEK (pp. 114) Sara Creek mall wants to let in store w/ pharmacy, in violation of lease w/ Walgreens The court identifies the benefits of using an injunction instead of damages:  It shifts the burden of determining the cost of the defendant’s conduct from the court to the parties. Thus the effect of upholding the injunction would be to substitute for the costly processes of forensic fact determination the less costly process of private negotiation.  the prices and costs are more effectively determined by the market than by the courts. Posner thinks it’s more efficient for the parties to put a price on breach, rather than the courts.

CAREY V. PIPHUS (US 1978) (p. 122): Nominal damages for due process violations Two students, one in high school (Piphus) and other in sixth grade (Brisco), are suspended for using marijuana and for wearing a small earring, respectively, without due process. Mothers’ informed of why suspension actions taken, but not afforded opportunity to refute. Both parents subsequently sue in federal court for their sons having been suspended without due process in violation of 14th Amendment. Holding: In the absence of proof of actual injury, the students are entitled to recover only nominal damages” because actual injury by the deprivation of due process is necessary prerequisite to recovery under § 1983 for the deprivation of procedural due process. Plaintiffs have burden of production to prove that they suffered damages that flowed from denial of due process rather than punishment for infraction. (ie Court will not presume damages)

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BMW V. GORE (US 1996) (p. 130): Punitive damages – can’t be excessive Grossly Excessive Punitive Damages violate Due Process: Court struck down an award of $2 million in a case where BMW had been repainting, and selling as new, slightly damaged cars. Court identified 3 guideposts for unconstitutional excess in punitive damages awards:  How reprehensible is the conduct being punished?  What is ratio of the punitive award to the actual or potential harm inflicted?  What would the award be for comparable civil or criminal penalties for similar mischief?

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COMPLAINTS / PLEADINGS Rule 6: Computing and Extending Time Rule 7: Types of Pleadings Rule 8: Rules of Pleadings Rule 9: Pleading Special Matters Rule 10(a): Rule 17: Real Party in Interest

Pleading Standard 1. Rule 8(a)(2): “short and plain statement” of the claim showing that the pleader is entitled to relief 2. Twombley changes pleading standard to require more – “Must raise a right to relief about the speculative level, plausible and not merely conceivable.” a. Unclear what this means in light of Rule 9, which requires higher pleading standard than regular for accusations of fraud

Rule 6. Computation of Time 1. Exclude day of the act/event 2. When period less than 11 days, exclude Sat, Sun, legal holidays a. Rule 6(a)(4): defines legal holidays 3. Include last day of period unless Sat, Sun, legal holiday, or if to be filed in court, do not include bad weather day in the period where access to court impossible 4. Can request extension of time if before end of period before time expires, or by motion afterwards if deadline missed because of excusable neglect

Rule 7. Types of Pleadings

PLAINTIFF

1. Complaint a. Basis for Court’s subject-matter jurisdiction – 8(a)(1) b. Statement of claim: “short plain statement of claim showing pleader entitled to relief – 8(a)(2) i. Legal sufficiency ii. Factual sufficiency c. Demand for judgment/ – 8(a)(3) i. Damages, could be determined at trial, even for diversity case (8(a)(1) would have indicated you meet threshold amount) ii. Equitable relief: 1. Injunction 2. Declaratory judgment 2. Can plead in the alternative: Rule 8(d)(3) 3. Rule 3: civil action commenced by filing complaint with the court 4. Serve complaint on D within 120 days of filing with court – keep in mind computation of time

Rule 9. Special Pleading Rules

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DIOGUARDI V. DURNING (2nd Circ 1944)(p. 197). Liberal Pleading Reqs  Plaintiff wrote his own complaint (poorly worded & unclear), alleging Customs Collector sold his tonics to a lower bidder, and that two cases of his tonics disappeared before sale.  FRCP do not require “stating facts sufficient to constitute a cause of action” only that a “short & plain statement of the claim showing that pleader is entitled to relief.”  1st authoritative construction of Rule 8a.

CONLEY V. GIBSON (US 1957)(p. 199): “No set of facts”  The Court held “that 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.”  In reviewing a motion to dismiss, a court will take all assertions in the light most favorable to the plaintiff.

LEATHERMAN(US 1992) (p. 202) No heightened pleading standard for civil rights cases.

BELL ATLANTIC CORP. V. TWOMBLY (p. 205) – Must raise a right to relief about the speculative level; must be plausible and not merely conceivable. Conscious parallelism versus conspiracy to fix prices.

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AMENDING THE PLEADING

Rule 15(a): Amendments as a Matter of Course (1) Party may amend its pleading once as matter of course (automatic): (A) Served with the responsive pleading; or (B) Within 20 days after serving pleading if responsive pleading not allowed and action not yet on calendar (2) In all other cases, party may amend its pleading only with opposing party’s written consent or the court’s leave. Court should freely give leave when justice so requires. Barriers to amending:  Unreasonable Delay: When opponent has unreasonably delayed in raising an issue he seeks to add by amendment. This argument usually fails without some additional element of prejudice.  Prejudice: The delay has caused a party to be prejudiced in his or her preparation of the case.  Bad Faith: The issue is raised in bad faith, such as for the purpose of confusing the factfinder.  Futility: The new issue is futile, having no chance of success

Rule 15(b): Amendments During and After Trial (1) If, at trial, a party objects that evidence not within issues raised in pleading, court may permit pleadings to be amended. Court should freely permit an amendment when doing so will aid in presenting merits and objecting party fails to satisfy court that evidence would prejudice that party’s action or defense on merits. Court may grant a continuance to enable objecting party to meet evidence.  Occurs when evidence is presented at trial that is outside scope of the pleadings. (2) For Issues Tried by Consent. When an issue not raised by pleadings is tried by parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move – at any time, even after judgment – to amend the pleadings to conform them to the evidence and to raise unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

Rule 15(c): Relation Back: (1) Amendment to a pleading relates to date of original pleading when: (A) Permitted by the law that provides the statute of limitations, OR (B) Amendment asserts claim or defense that arose out of conduct, transaction, or occurrence set out – or attempted to be set out – in original pleading; OR (C) Amendment changes the party or the name of the party: if claim is based on same transaction and the party to be brought in, within 120 days of filing of complaint (Rule 4(m)), AND 1. Has received such notice, and Two theories of notice: i. Shared attorney: Attorney is likely to have communicated to party that he may be joined in the action. ii. Shared identity of interest: Parties so closely related in their business operations or other activities that institution of action against one serves to provide notice of litigation. 2. Must not be prejudiced in defending on the merits 3. Knew or should have known that but for a mistake concerning the identity, the action would have been brought against this party a. “But for a mistake”  Circuit split as to this whether or not knowing a parties name will constitute a mistake

Note: Cannot add a claim that would have been time barred upon date of institution and cannot use relation back to revive the time-barred claim

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Model Answer: Relation Back X…. occurred on X date and the statute of limitations expired X date – X days before…P received info of additional party. Therefore, P must amend his/her complaint and “relate back” the claim against UNNAMED PARTY under Rule 15(c)(1). First, P can show that the claim arose out of “the conduct . . . or occurrence set forth in the original pleading” (15(c)(1)(B)) because …. Second, P must show that UNNAMED PARTY received actual or constructive notice of the action within the 120 period following the service of the complaint (Rule 4m) on ORIGINAL D (15(C)(1)(c)(i)). This may be difficult. Although…Nevertheless, since SHARED IDENTITY/SHARED ATTORNEY, it is highly LIKELY/UNLIKELY that UNNAMED PARTY would have found out about the . If P can meet this requirement, then he can probably also meet the third requirement: UNNAMED PARTY should have known that but for a mistake, the action would have been brought against HIM/HER (15(C)(1)(c)(ii)). INSERT FACTS. Once she knew of the suit, she should have known that but for P’s mistake in thinking that ORIGINAL D was the sole WRONGDOER, he would also have sued her. Finally, the court will consider whether “justice so requires” that UNNAMED PARTY be added (15(a)(2)). Here, because the passage of time HAS/HAS NOT significantly affected evidence or UNNAMED PARTY’S ability to defend herself, justice probably weighs in favor of amending to add UNNAMED PARTY.

Despite the strong argument in favor of permitting a relation back amendment, it should be noted that the text of Rule 15 does not expressly permit the addition of a previously unnamed party through an amended complaint, as discussed in Sinlgetary v. Dept. Corrections. Rather, 15(c) allows an amendment that substitutes the proper name for a party that had been previously incorrectly named. Consequently, despite the analysis in the preceding paragraph, the judge may rule that Rule 15 cannot authorize the amendment that P seeks, depending on controlling case law of the circuit, which may or may not accept

Rule 15(d): f Pleading: Court can allow party or events occurring since start of lawsuit

SINGLETARY V. DEPT OF CORRECTIONS (3d Cir. 2001) (p. 250) – Relation Back Dorothy Singletary’s son, Edward, was prisoner who committed suicide. Prior to suicide, Robert Regan, a psychologist, met with and evaluated Singletary on a weekly basis and was last to assess him before he died. Procedural note: original complaint named the Department and “Unknown Corrections Officers.”  Court held that: notice requirements were not met. o Notice via shared atty, identity of interest are ok, but not applicable here o Circuit split on whether can use Rule 15(c) “but for a mistake” to name people who became known after discovery. Some circuits do not allow amendments to clarify identity of John Does.

Christopher v. Duffy, Mass. App. Ct. 1990. p. 232: rule 15c and prejudice Christopher family lives in building with lead paint. Janette Christopher diagnosed with lead poisoning. Hire Duffy to “de-lead.” He does so negligently. Janette dies. Original complaint: James and Bettina Pyne, owners of apartment, Alfonse Trulli, former owner, and John Doe (subsequently replaced by John Duffy). Settled out of court except for Duffy. Mother moves to amend original complaint 6 years later by dropping all original plaintiffs except Duffy and add five companies which manufacture lead for use in lead paint, trade association on the basis that companies knew or should have known of dangerous qualities of products, negligently produced and marketed them.

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ANSWERS, MOTIONS AND AFFIRMATIVE DEFENSES

DEFENDANT

Motions 1. First response – if Motion or Answer: a. 12(b)(2) - Lack of Personal Jurisdiction (waivable if not in answer or motion) b. 12(b)(3) - Improper venue (waivable) c. 12(b)(4) - Insufficient process (waivable) – defect in the actual process, ie missing complaint d. 12(b)(5) - Insufficient service of process (waivable) 2. Failure to state a claim – 12b6 – can raise through end of trial a. P fails to state a cognizable claim – i.e. the substantive law offers no relief for this type of injury b. P fails to plead sufficient facts—i.e. such a cause of action exists but P does not state even rudimentary information c. P alleges facts inconsistent with the cause of action alleged – i.e. the false imprisonment claim, p.p. 226-227 in Bower v. Weisman 3. Motion for judgment on the pleadings – 12(c) – if after D has answered 4.

D’s Options for responding to a complaint  Motion for more definite statement—rule 12(e). If the complaint is too vague.  Motion to strike—rule 12(f). To strike from the complaint any redundant, immaterial, impertinent, or scandalous matter.  Motion to dismiss—rule 12(b). . Lack of Subject Matter jurisdiction (not waivable per 12(h)(3)) . Lack of Personal Jurisdiction (waivable if not in answer or motion) . Improper venue (waivable) . Insufficient process (waivable) . Insufficient service of process (waivable) . Failure to state a claim (not waivable) . Failure to join (not waivable)  File an answer—rule 8(b). w/in 20 days, otherwise motion for extension under 6b) 1. Can include affirmative defenses 8(c). Even if the facts are true, there are other facts which should lead the defendant to win. 2. must either admit or deny P’s allegations; or state “insufficient information to form a belief.”  Motion for judgment on the pleadings—rule 12(c).  Counter-claim against the plaintiff. Rule 13.  Not answer and have a default against you. Rule 55.

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JOINDER ADDING PARTIES & CAUSES OF ACTION Joinder of Claims – Rule 18 Permissive Joinder of Parties – Rule 20 Compulsory Joinder of Parties – Rule 19 Counterclaim – Rule 13(a), 13(b) – Rule 13(g) Third-party Practice – Rule 14 Intervention – Rule 24 Interpleader – Rule 22

Rule 18. Permissive Joinder of Claims 1. P can file as many claims as s/he wants against D, even if unrelated, but must raise all claims arising from same transaction or occurrence (“T&O”) 2. “In federal practice, a plaintiff can join any claims s/he has against the D, so joinder is proper.” 3. “If a state X is a state that follows the federal rule on joinder, P can join any claims s/he has against D, so joinder is proper” 4. If state X follows the more traditional rule of demanding a transactional relationship, use fact analysis to show that all claims come from the same transaction….”joinder of claims appropriate”

Rule 20. Permissive Joinder of Parties – 2 prong test Persons can be joined as plaintiffs or defendants if they assert a right to relief or any right to relief is asserted against them jointly, severally, or in the alternative if: 1. Claims or defenses stem from the same transaction or occurrence; AND 2. Common question or law or fact that ties the parties together. T&O + CQ = Permissive Party Joinder At most, a paragraph: state that question

Rules of Thumb re: Necessary Parties (from Daynard v. Ness) 1. Joint tortfeasors are not necessary parties 2. Co-obligors to a contract may be necessary parties, but generally are not indispensable 3. An action to set aside a contract requires joinder of all parties to contract  indispensable parties

Rule 19. Compulsory Joinder of Parties: Parties without whom the action cannot proceed. 1. Is the outsider necessary and should be joined if possible? a. If in that person’s absence, court cannot grant complete relief to existing parties, OR Example: need all of the parties to a contract to compel specific performance, rights to limited trust fund b. The absent party claims an interest to the subject of the action and is so situated that disposing of the action in the person’s absence may: o As a practical matter impair or impede the person’s ability to protect that interest, OR o Absent party leaves existing party subject to substantial risk of incurring double, multiple or otherwise inconsistent obligations because of that interest Example: one piece of land that can be conveyed to only one party 2. Can you join the outsider? If not, why not? a. May not be able to join because would destroy complete diversity, or cannot exercise PJ over the outsider Prof. may be testing on SMJ or PJ through back-door 3. Because of lack of SMJ or PJ, may not be able to join party. What then? a. Court can either dismiss under Rule 12(b)(7): failure to join a necessary party, OR o Courts do not like to determine outsider “indispensable” 15

b. Court can grant discretionary relief under Rule 19(b) by weighing several factors: o Extent to which a judgment rendered in the person’s absence might be prejudicial to the person or existing parties o Extent to which, by protective provisions in the judgment, shaping of relief, or other measures, the prejudice can be lessened or avoided 1. I.e. putting part of an insurance policy in escrow if indispensable o Whether a judgment rendered in person’s absence will be adequate o Whether P will have adequate remedy if action dismissed for nonjoinder c. Four corresponding interests (as highlighted in Daynard): o Interest of outsider whom it would have been desirable to join o D’s interest in avoiding multiple litigation, inconsistent relief or sole responsibility for liability it shares with another – “just, speedy, inexpensive resolution of disputes” o Interest of courts and public in complete, consistent, and efficient of controversies o P’s interest in having a forum

TEMPLE V. SYNTHES (US 1991) (p. 316): Joint & Several liability does not invoke Rule 19 Temple sued mfr of prosthesis in Fed Court, doctor & hospital in State court. Mfr filed rule 12(b)7 motion – failure to join necessary parties. Rejected:  Joint & Several Liability does not require all possibly liable parties. Mfr can be made to pay full damages and collect from other parties later.  19(a)2i – absence of doctor & hospital impairs their ability to defend their legal interest (empty chair defense). Answer: judgment isn’t binding on nonparties.  19(a)2ii – inconsistent obligations: inconsistent judgments are ok, as long as party isn’t order to do two exclusive duties.

DAYNARD V. NESS, ET AL. (MA district 2001) (p. 320). Daynard sued MI and S.C. firms & attys for failing to compensate him for assistance in state tobacco litigation. MS firm got dismissed for lack of PJ. Then SC moved to dismiss because MS was necessary party.  Ds allege Daynard can’t get complete relief without MI defs on the hook. o Answer: joint and several liability assumed in this case (all assumptions in favor of nonmoving party) – not grounds for 12(b)7 dismissal . Ds can litigate between themselves later if they want o Even if SC pursues an “empty chair” defense, that MI defendants will not be bound by judgment  “persuasive precedent” not enough to satisfy the prejudice restriction

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INTERVENTION RULE 24

RULE 24(a). Intervention of Right Intervenor can intervene AS A RIGHT if: 1. Timely application, AND o As soon as prospective intervenor knows or has reason to know his interest may be adversely affected by outcome of litigation  not absolute, b/c intervenor does not receive adequate notice o Motion must be accompanied by pleading which sets out claims/defenses for which intervention sought and served on the parties acc. to Rule 5 o Every step in procedure of main action is a strike against timeliness – i.e. hearing, trial etc. 2. Given unconditional right to intervene by federal statute, OR 3. Legal interest in the property or transaction that is subject of the lawsuit o Circuits not in agreement whether the right should be legally cognizable or not; whether interpreted liberally or more stringently o Court in U.S. v. NIPSCO defines “legal interest” as a direct, “significantly protectable interest” or a “legally protectable” interest  being a concerned private citizen not enough 4. Disposition of suit may impair or impede that interest 5. The interest is not adequately protected by a named party

Rule 24(b). Permissive Intervention Court may allow anyone to intervene who: 1. Timely application, AND o As soon as prospective intervenor knows or has reason to know his interest may be adversely affected by outcome of litigation, must move for intervention – not absolute o Motion must be accompanied by pleading which sets out claims/defenses for which intervention sought and served on the parties acc. to Rule 5 2. Is given conditional right to intervene by federal statute, OR 3. Has claim/defense that shares with main action a common question of law or fact 4. Intervention will not unduly delay or prejudice the adjudication of original parties – Rule 24(b)(3)

Intervention Notes: 1. No supplemental jurisdiction 2. How Rule 19 and Rule 24 interface? a. Rule 19: initiated by one of the parties in the litigation, vs. b.Rule 24: initiated by party that wants to be part of the case that is not one of the parties Both Rules require that party have an interest that may be impaired or impeded by the litigation

U.S. V. NORTHERN INDIANA PUBLIC SERVICES CO., ET AL. (N.D. Indiana 1983) (p. 329) Intervenor (Save the Dunes Council) alleges it has an environmental interest in land being condemned by govt because has been a part of campaign to preserve Indiana Dunes for public use and enjoyment for past 30 years.  Holding: Council motion to intervene denied: potential intervenor has no legally protectable interest in the property and allowing intervention would unduly prejudice original parties’ interests – both of whose positions are contrary to the intervenor – would only prolong lengthy lawsuit, since 4 years had already elapsed. Procedural Notes:  U.S. files “Notice of Condemnation” in 1978 – commencement of action  First mention of settlement between parties was January 1982.  Council filed motion to intervene in April 1982, 3 months after mention of settlements (timely app)  Parties entered into stipulation and joint motion to dismiss on September 1983.

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Counterclaims, Crossclaims, Impleaders

Rule 13(a): Compulsory Counterclaim 1. A pleading must state as a counterclaim any claim that – at the time of service – the pleader has against an opposing party if the claim: a. Arises out of same transaction or occurrence that is subject matter of opposing party’s claim, AND Res judicata will apply if not raised Supplemental jurisdiction okay Rule 13(e): permits party to file supplemental pleading asserting counterclaim that arose after serving earlier pleading. b. Does not require adding another party over whom court cannot acquire jurisdiction, EXCEPT c. If, when the action was commenced, the claim was subject of another pleading action, OR d. The opposing party sued on its claim by attachment of other process that did not establish PJ over the pleader on that claim, and the pleader does not assert any counterclaim under this rule

Rule 13(b): Permissive Counterclaim 1. Pleading may state as counterclaim against opposing party any claim that is not compulsory. 2. Need not be related to subject matter of original action 3. Res judicata does not apply 4. Supplemental jurisdiction not okay – not same common nucleus of operative fact

Rule 13(g): Cross-claim (against co-defendant) must be related to original claim, or allege that co-defendant will be wholly or partly liable. But once you have a related cross-claim, you can join unrelated ones: now you are opposing parties. [Supp J ok over related claims.]

Rule 13 (h): Adding parties A cross claim or counter claim (against parties already in the suit) may also bring in additional parties, if claim is part of same occurrence/transaction (under 19 or 20)

Rule 21 – misjoinder: not grounds for dismissal. If court finds a party has been misjoined, simply order separate .

Impleader – Rule 14: defendant can bring in new parties for indemnification  Allows the defendant to bring a claim against a third party if the third party is or may be liable to them for all or part of the plaintiff’s claim against the defendant. (at judge’s discretion after 10 days)  joint parties to contract, respondeat superior, indemnification, contribution, statute  Not same as blaming 3rd party independently for damage – that’s just a defense.  Third-party defendant, Plaintiff, OG Def can bring related cross-claims, counterclaims, and third party claims under rules 13(a), (b), (g) and 14(a). Then can add unrelated claims once they are opposing parties. [Supp J ok for related claims.]

Rule 42 Consolidation/Separate Trials: Judge can separate claims into separate trials for economy, convenience, or to avoid prejudice. By motion or court’s own action.

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Kedra v. City of Philadelphia, District Ct 1978 (p270): permissive joinder of parties Kedra family members alleged pattern of abuse & brutality, against various members of police force over long period. Defendants alleged misjoinder of defendants.  Common questions of law & fact join the defendants (20a) (systematic pattern is clear, despite 18 month court of events)  FRCP support entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties, and remedies is strongly encouraged.

Gross v. Hanover Insurance (p281) Impleader P sued insurance after jewels stolen from store. Hanover seeks to implead Rizzos, whose negligence allowed theft.  Court must balance benefits of settling related matters in one suit against potential prejudice/delay to plaintiff and 3rd party defendants.  issue with 3rd party arises from same event as original claim (enough overlap in evidence to make it efficient) INTERPLEADER

Rule 22. Interpleader An individual or corporation who is or may be exposed to double or multiple liability may also initiate joinder of parties who have asserted or could assert such claims (p. 328) Stakeholder interpleads adverse claimants, all of whom allege rights to the stake at issue Usually arises in insurance cases: Example: insurance company may be unsure which of two beneficiaries to pay out a policy and will interplead those alleging rights to proceeds Could be further complicated if stakeholder is also adverse claimant, i.e. if stakeholder alleges that neither adverse claimant has rights to the policy (in example above) because neither paid premiums

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DISCOVERY Rules 26-37 Informal Discovery! (p. 384)

RULE for Discovery 26(a)1 mandatory initial disclosures: must disclose without request info that supports your position (no longer anything related to claim)  Name & contact info of people “likely to have discoverable info the disclosing party may use to support claims/defenses.”  All documents, data, etc in possession of party, that party might use to support claims/defenses  Computations (and docs supporting them) of damages claimed by disclosing party  Insurance agreement if insurance company may be liable for damages. Must be disclosed w/in 2 weeks of 26(f) conference. Must supplement if information covered by 26(a)1 becomes available later. 26(a)2c mandatory disclosure of expert witness testimony 90 days before trial date. 26(a)3 mandatory disclosure of witnesses & documents to be used at trial – 30 days before trial date. 26(e) supplementation request – need to update if you find out new facts 26(b)3 – allows you to access opposing lawyer’s “work product” if you really need it and can’t get it by other means. 26(f) Discovery Planning Conference. Parties must meet as soon as practicable, and at least 21 days before a scheduling conference is held under rule 16(b) to discuss their claims and defenses and the possibilities for settlement and to arrange for the disclosures required by 26(a)(1) and to develop a proposed discovery plan. The attorneys must submit a written report outlining the discovery plan to the court within 14 days of the conference.

Depositions: Rules 27 - 32 typically conducted orally. question potential witness under oath about their knowledge and participation in certain events or circumstances concerning the underlying action. advantages to an oral : 1. Gives the attorney the change to question potential witnesses under oath, in a manner similar to trial. Helps in assessing the demeanor of the witness under a variety of questioning styles. 2. Responses to questions will have a degree of spontaneity unavailable under other discovery methods. 3. The attorney has the opportunity to follow up on information revealed in answers and to take the questioning in any new direction that may reveal itself. 4. Anything recorded in a deposition is available for trial (subject to the rules of evidence), and may be used to impeach a witness’s testimony at trial. 5. nonparties may be deposed and subpoenaed to bring in documents, thus otherwise undiscoverable evidence may be obtained through questioning regarding those documents or items. disadvantage = expense. Recording expenses, combined with legal fees mean that an eight hour deposition can easily cost the requesting party approximately $5,000. Corporations: 30(b)6 a corporation has to name a person to be deposed on its behalf.

Rule 33 – Interrogatories: 25 per person

Rule 34 – Document Productions

Rule 35 – Physical / mental examinations

Rule 36 – Requests for Admissions

Rule 37 – Sanctions re: Discovery

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Purposes:  Reduces “trial by ambush”  Helps focus on merits  Promotes settlement because parties assess merits of case before trial  Conserves court’s resources by narrowing issues  Preserves individual rights and promotes societal acceptance of legal system  “bulwark against government tyranny”  allows for private, individual law enforcement – needed because govt does not enforce much

Discovery and its place in an adversarial system: pp 309-321  Brazil’s and Kieve’s critiques of discovery: monster out of control: millions of dollars, countless hours, way to rack up billable hours. Weapon to be used against adversary – bury them with costs in both money and time with broad discovery requests.  Landsman: greater acceptance of process by society & litigants than if we had a judge-driven system – we control process of own lawsuit. adversary system can counteract judge’s bias  Tension between adversarial litigation and sharing information: duty to zealously represent client – but discovery requires us to turn over info that might lead to client losing  Defense of discovery: Judges are more impartial because their only role is that of running the court, if discovery were not allowed, then more administrative oversight would be needed, particularly in cases involving large corporations.  Broad discovery supports the plaintiff. Plaintiffs going against a large corporation have a much better chance of making their case if there is discovery. Most cases use very little discovery. A large amount of discovery is concentrated in a handful of cases.

Scope: (R26) anything that is  relevant to claim or defense of any party or may lead to discovery of relevant info  Not privileged matter: Can seek protective order to avoid disclosure of privileged information  not unreasonable cumulative or burdensome, or obtainable elsewhere. Parties can agree to waive rules.

Hickman v. Taylor (p. 296) US 1947: atty work product P sought access to information from D’s atty’s interviews with survivor of boat that sunk. The court held that these statements were attorney work-product and therefore privileged: atty’s opinions and views. The plaintiff in this case had access to the witnesses and could have interviewed them themselves. Burden on the plaintiff to show undue hardship to justify production Limits to broad discovery: do your own work!

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JUDGE & JURY Rule 38 – preserves right to jury trial per 7th Amendment: for cases at common law, as of 1791  Must specify issues you want tried by a jury  Must demand by serving other parties within 10 days of service of last pleading on those issues, and file w/ court  Another party can demand jury trial for any other issues of fact not specified by 1st party, within 10 days (or less time as court may order) Rule 39 Trial by Jury or Court  After this filing, parties can stipulate & agree to trial by court instead  Court can find (by motion or on its own) that some of the issues don’t qualify for jury trial  If you fail to demand jury trial, court can grant it by motion Rule 47 Selection of Jurors  Court determines whether parties’ attys examine prospective jurors or Court does it  Court may permit parties to submit inquiries to jurors as it deems proper  Peremptory challenges allowed by 28 USC 1870 – Batson challenge  Court may excuse juror from deliberation or trial for good cause Rule 48 Number of Jurors  Seated jury must be between 6 and 12 members  Verdict shall be unanimous unless parties stipulate otherwise

Teamsters Local 391 v. Terry (US 1990) (p. 442): Right to Jury test Two-part test the majority applied to determine whether a particular action will resolve legal rights: 1. Compare the statutory action to 18th century actions brought in the courts of England prior to the merger of law and equity. 2. Examine the remedy sought and determine whether it is legal or equitable in nature. (if both legal & equitable remedy sought, and in equipoise, more weight to 1st prong) DFR case where union allowed employer to terminate them – seek pay from union. Court tries to analogize DFR to another cause of action that is either equitable or legal. Thinks its more like attorney-client malpractice than trustee breaching fiduciary trust. But basis of relief is legal: damages from union, not make whole order from employer. Brennan: focus on remedy not the right  more manageable for judges not expert in legal history.

Statutory right to Jury Trial  public rights (civil rights, ex) usually no jury  private rights – jury

Peremptory Challenges  Lawyers can challenge prospective jurors for cause, or peremptorily (no cause, limited #)  Batson challenge: Use of peremptory challenges to exclude jurors based on race violates 14th amendment rights defendant. 1. Prima facie showing of discrimination 2. Burden shifts to other party to give race-neutral explanation  very liberal 3. Party challenging the strike of the juror to prove to the court that use of the strike was motivated by purposeful discrimination

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SANCTIONS Rule 11(b) Rule 37 (during Discovery)

RULES/FEATURES OF SANCTIONS: 1. Rule 11 applies to pleadings, motions, oral representations re: a document, etc (Discovery Rule 37) 2. Rule 11(b): Lawyer signature required to certify that acc. to “best of knowledge, information & belief, formed after an inquiry under the circumstances” Violations: A. Not filed for improper purpose, needless delay or harassment B. Warranted by existing law/not frivolous (or nonfrivolous modification/reversal of existing law or for establishing new law) C. Have evidentiary support (or will after discovery) D. In a denial paper, the lawyer is certifying that there is evidence to support them and reasonably based on information of belief 3. Motion for Sanctions. Must: A. Be filed separately from other motions B. Describe the specific conduct that allegedly violates Rule 11(b) C. Be served under Rule 5(b)(2) – personal service or lawyer’s office – but must not be filed or presented to court if offensive document is withdrawn or appropriately corrected within 21 days after service  “safe harbor” provision 4. Court can initiate sanction and ask party to show why not warranted sua sponte – Rule 11(c)(3) 5. If court determines sanction warranted, can impose on any attorney, law firm, or party that violated rule or responsible for violation 6. Law firm held jointly responsible for violation committed by its partner, associate, employee 7. Sanction should be limited to deter conduct. 8. Possible penalties: a. Nonmonetary directives b. Penalty paid to court c. Payment to movant for reasonable attorney’s fees and other expenses directly resulting from violation 9. Limitations on Monetary Sanctions. Court may not impose sanction: a. Not against represented party b. On its own, unless it issued the show-cause order under Rule 11(c)(3) before or settlement of claims made by or against party/lawyer to be sanctioned 10. Party need not file the pleadings in bad faith to be sanctioned 11. Party has to monitor continued viability of the filing, even if initially it filed the pleading properly

Reasons for Sanctions 1. Purpose is to deter, not to punish. 2. Not financial remedy usually, to not encourage parties to move for sanctions

Critiques of Rule 11 1. Justice Scalia’s letter: against safe harbor provision; if sanction found to be warranted, should be sanctioned, and not given time to withdraw the problematic document/motion/etc. 2. Too harsh on Ps, especially in civil rights cases  eased in 1993

CHAPLIN V. DUPONT ADVANCE FIBER SYSTEMS (p. 288). Sanctions upheld in part – no factual basis for discrimination based on religion and race, but denied for P’s attempt to expand civil rights law to cover national origin based on “Confederate Southern Americans”. Lawyer sanctioned $10K. D instituted a policy in 2000 banning the display of offensive symbols, including the Confederate flag. Ps, white, 23

Christian males, worked in D’s plant located in Richmond, VA. Ps allege discrimination based on their national origin (“Confederated Southern American”), religion, and race because of D’s ban of display of the flag. There were a series of incidents where D’s employees directed Ps to remove Confederated flag from clothing (belt), bumper sticker, t-shirt, etc. Ps also prohibited from forming a “Heritage Preservation Network” for Confederate Southern Americans, while similar networks existed for African-Americans, and other racial/cultural groups.

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SUMMARY JUDGMENT Rule 56 Antidote to liberal pleading system “No genuine issue of material fact”

Rule 56. Summary Judgment: Need trial to resolve disputes about facts, if not dispute, judge can resolve 1. Under Rule 56(a), moving party may file the motion after a. 20 days after commencement of action, or b. Opposing party serves motion for summary judgment 2. D may move for summary judgment at any time, with or without supporting affidavits, on all or part of claim 3. Motion must be served at least ten days before hearing date, and opposing party can serve opposing affidavits before hearing 4. Inferences from underlying facts contained in moving party’s materials must be viewed in the light most favorable to opposing party (Adickes) 5. Judgment should be rendered in favor of moving party if the pleadings, discovery and disclosure materials on file, and any affidavits show: a. No genuine issue as to any material fact, AND b. One party is entitled to judgment as a matter of law 6. In contrast to Adickes, the party seeking summary judgment need not make affirmative evidentiary showing (Celotex) if non-moving party has failed to show sufficient evidence to establish existence of an element essential to that party’s case, and on which that party will bear burden at trial a. “No express or implied requirement in Rule 56 that moving party support its motion with affidavits or other similar materials negating opponent’s claims” (Celotex) b. “The burden of moving party may be discharged by “showing” – that is, pointing out to the district court – that there is an absence of evidence to support nonmoving party’s case (Celotex) . By contrast: Adickes held that burden on moving party to show existence of no genuine issue of material fact, BEFORE burden shifts to nonmoving party to counteract this (Adickes) – if burden not met, summary judgment must be denied 7. Where the record taken as a whole could not lead a rational trier of fact to find for nonmoving party, there is no genuine issue for trial (Matsushita) – where dispute material but not genuine  SJ a. P failed to present evidence at summary judgment stage that “tends to exclude the possibility that the alleged conspirators (“5 company rule”) acted independently” 8. Standard similar to standard for directed verdict: court can apply the burden of proof to party that has burden as if at trial (Liberty Lobby) 9. Court can view facts in light depicted by videotape which captured events underlying excessive force claim (Scott v. Harris) 10. Once moving party meets burden, opposing party may not rely merely on allegations or denials of its own pleadings; rather, its response must – by affidavits or as otherwise provided in Rule 56 – set out specific facts showing genuine issue for trial (Rule 56(e)(2)) – seems contrary to Celotex holding a. If opposing party does not respond in this manner, then summary judgment should, if appropriate, by entered against that party. b. If opposing party shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, court may, under Rule 56(f): . Deny the motion; . Order continuance to enable affidavits to be obtained, depositions to be taken, or other discovery be undertaken, or . Issue any other just order

Why move for summary judgment? 25

 P has to reveal her evidence  Encourage settlement  Avoid a jury – emotions  Save money Why wouldn’t you move for SJ  End up signaling your case to the other side, reveal your theories  Sanctions

Args in support of Summary Judgment 1. With advent of notice pleading, summary judgment should not be regarded as “disfavored procedural shortcut, but rather as integral part of Federal Rules as a whole” (Celotex) 2. Just, speedy, inexpensive resolution of disputes 3. In order to ensure that do not act irrationally, judges must be certain that before jury can decide a factual issue on behalf of party with burden of production, there is sufficient evidence to permit reasonable people to make such a finding  deemed a legal question, rather than factual question 4. Where underlying question to be resolved involves application of predominately legal standard to undisputed historical facts (i.e. whether a union breach its duty of fair representation) properly decided by the court in order for consistency, uniformity, and predictability are important for administration of (Schwarzer article) 5. For mixed questions of law and fact (i.e. conspiracy under antitrust laws) – requires combo of assessing intent (sphere of the jury) and whether as a matter of law and policy, should be treated as unlawful conspiracy (sphere of judge) – unclear where this falls, but similar to Scott v. Harris

Args against Summary Judgment 1. Rule 56(e), by its terms, places on the nonmoving party the burden of coming forward with rebuttal affidavits or other specified kinds of materials, only in response to a motion for summary judgment “made and supported as provided in this rule” 2. Reasonable people can disagree over the evidence, as in Scott v. Harris, and so even where there are mixed questions of law and fact, best to give to the jury 3. At least with respect to burden-shifting, the movant must discharge of the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that P has no evidence (Celotex, concurring by Justice White) 4. Two components of establishing nonexistence of genuine issue of material fact has two distinct components (Celotex, dissent): a. Initial burden of production which shifts to nonmoving party if satisfied by moving party b. Ultimate burden of persuasion, which always remains with moving party 5. Judges’ weighing of evidence infringes upon province of the jury (Liberty Lobby dissent) 6. Majority’s disregard for expert’s proposed testimony a clear violation of judicial obligation not to weigh evidence and assess credibility when ruling on summary judgment (Matsushita dissent) a. Court’s rejection of expert proposed testimony and supplants it with their own 7. Where facts turn on examination and assessment of human behavior within common experience of jurors, better to have twelve people decide, rather than one 8. For mixed questions of law and fact (i.e. conspiracy under antitrust laws) – requires combo of assessing intent (sphere of the jury) and whether as a matter of law and policy, should be treated as unlawful conspiracy (sphere of judge) – unclear where this falls, but similar to Scott v. Harris

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Rules/Features of Summary Judgment 1. Judge: not supposed to weigh evidence, but to discern whether there is issue of material issue of fact 2. Valuable, important procedure: make sure that it works 3. When a judge sits on summary judgment, judge is to conceptualize as if at trial and think “would I order a directed judgment”? 4. Same test as directed verdict motion, just occur at different moments: a. Judge looks at all of the evidence in favor of nonmoving party b. Judge only looks at admissible evidence – depositions, interrogatories, affidavits – some not admissible c. No reasonable jury standard = no genuine issue of material fact 5. Unlike 12(b)(6), supported by affidavits / discovery materials.

Contexts for Summary Judgment  For exam 1. P’s case has no legal basis for the claim  “Fails to state cognizable claim” 2. No genuine issue of material fact  facts are consistent 3. Summary judgment may look very powerful for P but very compelling affirmative defense (i.e. statute of limitations or res judicata). Judge may exercise its discretion and deny motion: 1. Situation in which moving party in which depositions are strong against P but something fishy about the evidence 2. Issues of credibility  more likely to be subjected to summary judgment (eyewitness type) 3. Rarely granted in favor of moving party that has burden of persuasion at trial 4. When there is a gap in materials presented in the motion (i.e. only 2 of 3 witnesses to an accident)

ADICKES V. KRESS (US 1970)(p. 466): Burden on moving party to show absence of dispute, before shifts to nonmoving party to counter. Addickes was white civil rights activist, arrested for vagrancy after leading march on library and then attempting to eat with integrated group at lunch counter. Sued for deprivation of rights under color of law. Alleged D conspired with police.  D failed to show absence of dispute about material facts with affirmative evidence  Failed to foreclose possibility that policeman was in store and conspired w/ Kress.  Kress argued for Sum Judg because Addickes did not submit properly sworn statement alleging policeman’s presence in store.  But not Adickes’ burden to show  sworn statement only necessary if D had met initial burden (submitted affidavit from cop, for example)

CELOTEX V. CATRETT (US 1986)( p. 476). Moving party can point to absence of fact in P’s materials. Asbestos case – wife of decedent sued several manufacturers of asbestos. Court affirmed summary judgment against P because she failed to produce evidence that husband had been exposed to Celotex products. 1. Burden is on moving party, but that does not require that they submit evidence 2. Can point out specific elements/absences in discovery /pleadings/discovery already in the record 3. Summary judgment appropriate where P, after sufficient time for discovery, has failed to make a showing sufficient to establish an element essential to her case, where she will bear burden of proof. 4. Must preserve trial court’s ability to dismiss meritless cases. 5. Summary judgment is not a disfavored shortcut, “but an integral part of Federal Rules for just, speedy, inexpensive resolution”  invites more summary judgment motions.

MATSUSHITA V. ZENITH (US 1986)(p. 485). Dispute must be genuine, i.e. plausible  Summary judgment for Def: “where the record taken as a whole could not lead a rational tier of fact to find for the non-moving party, there is no genuine issue for trial.”

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 P’s economic theory expert presented testimony that court found implausible  no reasonable fact finder could believe Matsushita’s entire antitrust argument. There is a material dispute of facts, but not a genuine dispute: you can get an expert to testify to anything.

ANDERSON V. LIBERTY LOBBY (US 1986)(p. 484). Evaluate according to standard of evidence that will be required at trial. 1. Summary judgment requires court to predict what would happen to the case at stage of judgment as a matter of law (same standard as rule 50a). “Must direct verdict if, under governing law, there is but one reasonable conclusion as to the verdict.” 2. Trial court granted Sum Judg because P would be unable to prove “clear and convincing evidence” of malice, the standard in libel case. Appropriate to apply standard of evidence that would be used at trial.

SCOTT V. HARRIS (US 2007)(p. 489) Motorist brought § 1983 action against county deputy and others, alleging use of excessive force in violation of his 4th Amendment rights during high-speed chase. Court held that: 1) in considering deputy's motion for summary judgment, courts had to view facts in the light depicted by videotape which captured events underlying excessive force claim, and 2) deputy acted reasonably when he terminated car chase, and thus did not violate motorist's 4th Amendment right against unreasonable seizure.

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CONTROLLING / OVERRULING THE JURY Rule 50(a). JNOV Rule 50(b). Renewed JNOV Rule 52(c). Judgment on Partial Findings Rule 59. Motion for new trial

Rule 50(a). Judgment as a Matter of Law (Directed Verdict) 1. A party is entitled to judgment as a matter of law if, after a party has been fully heard on an issue there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Submit after case presented but before jury decides. 2. In determining whether a party is entitled to judgment as a matter of law, the judge will look at all facts and allegations in a light most favorable to the non-moving party – take all plausible evidence as true. 3. Non moving party must meet persuasion burden 4. Judge can determine legal sufficiency, jury determines whether persuasion burden met.

Rule 50(b): Renewed JNOV May renew motion after verdict: judge can’t independently evaluate jury’s finding of fact (7th Amendment) – so legal fiction that it is merely re-evaluating, after jury verdict, whether the evidence on which jury decided was legally sufficient to begin with. (Replaces JNOV) Some arguments made in favor of directed verdicts: 1. Inferences relied on by other party are too much of a stretch 2. The facts are in a fog, or could plausibly support two opposite conclusions - would require jury to speculate. 3. ‘My evidence must be believed.’ Clear, uncontradicted, unimpeached testimony must be taken as true.

Rule 52(c). Judgment on Partial Findings Allows judgment as a matter of law on a particular issue in a trial without a jury. If a party has been fully heard on an issue and the court finds against the party on that issue, then the court may enter judgment as a matter of law against that party w/ respect to a claim or defense that cannot be maintained without a favorable finding on that issue.

Rule 59. New Trials  Can request new trial on whole judgment or some issues.  Judge realizes she has made error that would be grounds for reversal  judgment or damages are inconsistent w/ weight of evidence  award so insane as to constitute evidence of prejudice or misunderstanding  Must be filed within 10 days of judgment  Court may grant new trial sua sponte (Rule 59(d)) Additur: Judge tells Def that she will order new trial unless Def agrees to higher damages. Negotiating tool to change judgment without new trial, but has to be consented to. Remittur: Judge tells P she will order new trial unless P agrees to reduce damages. Constitutionality: Court has held that federal courts can’t allow additur because it violates 7th amendment. However, remitture ok because a) found in England pre-1791 and b) jury award remains, with illegal excess removed.

Rule 60. Motion to Vacate Judgment. Clerical error, mistakes, fraud, new evidence. (Brandon v. Chicago) Must be made within reasonable time. For mistake/surprise/excusable neglect, new evidence, fraud – must be w/in 1 year. Purpose: FRCP designed to get to merits of case. Limit default judgments on technicalities.

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GALLOWAY V. UNITED STATES (US 1943) (p. 510) Motion for JNOV:

BRANDON V. CHICAGO BOARD OF ED (7th Circ 1998)(p. 528) P’s case dismissed for failure to prosecute. Clerk had wrong address so lawyer didn’t get correspondence. The facts here demonstrate a combination of error by the clerk’s office and neglect by the attorney, both covered by rule 60 b1, since b1 and b6 (other reasons) are mutually exclusive, b6 cannot apply and the time limit for relief under b1 (one year) has expired.

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PERSONAL JURISDICTION Geographic limitations on judicial power of states in federal system. “Full faith & credit clause” means other states will enforce valid judgments (Art. IV, § 1)

Rule 4(k). Territorial Limits of Effective Service Federal Courts have same jurisdiction as state trial courts in their state; 100 mile bulge addition for people served under R14 (impleader) or 19 (necessary parties)

Challenging Personal Jurisdiction  Federal Court: you can file a 12(b)(2) motion to dismiss for lack of PJ, and file other 12(b) motions without submitting to jurisdiction. But if you answer the complaint, you waive PJ objection  : some state courts require you to object to PJ in a special appearance – if you raise any other substantive issue (ex: 12(b)6) you waive PJ )  Nothing: o Under Rule 12(h): can waive personal jurisdiction, or o Not to appear in the out-of-state court and have entered against you; then collaterally attack . Under Article II, Section 1: another state has to give “full faith and credit” to the judgment of the other state, unless D can show that the judgment is not valid by raising a “collateral attack” against the judgment by saying that the judgment was invalid and therefore enforcement of the judgment also invalid

PJ Venue Subject Matter Jurisdiction Source 5th/14th Due process State statutes Art. III § 2 Federal statutes When raised 12(h) 12(h) Anytime Post trial? Can be appealed (if No real appealable issue No collateral attack; can raised); can be be reviewed on appeal collaterally attacked What happens when it Dismissal; P can re-file in Transfer: § 1404; dismiss Dismiss; no federal court isn’t met? federal court that has PJ and re-file

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PERSONAL JURISDICTION: Traditional Bases State Long-Arm Statue Application of Long-Arm Statute Constitutional? (PJ most testable subject for exam)

Analytical Framework (3 questions): 1. Is there a traditional base of personal basis of PJ?  if so, then not true PJ question; spot the PJ issue and move on 2. If no traditional basis for PJ, then Rule 4(k) directs court to look at the relevant state long-arm statute, since district court applies law of the state in which it sits 3. Does the long-arm statute apply? Prof. will give you the long-arm statute, or one that you’ll be directed to 4. Is that application of the long-arm statute constitutional? a. General jurisdiction b. Specific Jurisdiction

PENNOYER V. NEFF (p. 612 ) Two propositions emerge from Pennoyer: 1. State is all-powerful within its borders: can assert territorial power within its borders, even when D present there on transitory basis 2. A state is completely impotent outside its borders  [breakdown of this second proposition is where analysis of PJ applies ]

Traditional Bases of PJ 1. Territoriality (Pennoyer established territoriality: physical presence of the defendant or his property within the adjudicating state required in order for PJ to attach to D) 3. Domicile 4. Agency: corporate agent, partnership agent, or individual’s citizen’s agent when acting for us 5. Consent a. Express consent: to jurisdiction in contracts (forum-selection clause, Carnival) b. Implied consent: (Hess v. Palowski, p. 623, established implied consent: “if you travel on roads of MA, you (D, resident of PA) are implicitly consenting to jurisdiction of the state and service of process on your behalf by Registrar of Dept. of Motor Vehicles”) c. Waiver: Consent by not asserting PJ defense 6. Corporate presence: (related to territoriality, applied to entities): when corporation doing business in state, then present state, and subject to PJ [If no traditional basis for PJ her, good idea to say that there is none, list them, and move on to talking about long-arm statute, etc.]

State Long-Arm Statute: Is the state long-arm statute is applicable? If state long-arm statute specifies certain act or kinds of act over which state will exercise PJ for acts committed within the state, then forum state can assert PJ over D for those acts committed within the state  specific jurisdiction ‐ [Being tested on statutory interpretation if there is a long-arm statute: apply one, two, or three of the provisions of the long-arm statute to the facts of D’s case on exam. Odds are that long-arm statute will apply.]

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Constitutional Analysis of PJ: Fact Analysis & Law Application

TEST – RULES/FEATURES 1. Minimum contacts related to forum state such that fair pay and substantial justice allow for D to be haled into court (Intl. Shoe) 2. Unilateral activity by someone other than P not sufficient for purposeful availment (Hanson (decedent’s trust), World-Wide Volkswagen (car driven to Oklahoma by Ps)) 3. Foreseeability that D would be hailed before court in forum state alone not enough for PJ 4. D needs to purposefully avail itself of the forum state for D (World-Wide) 5. If D puts product in stream of commerce, may or may not be purposefully availing self of forum state  Court still split on this (World-Wide, Asahi) v. Vermeulen v. Renault (French automaker) 6. Effects test for defamation suits: if the defendant can reasonably anticipate or even intends that effect of its actions will take place in particular forum state, esp. because of location of P-victim, then D can expect to be subject jurisdiction of that state (Calder v. Jones, Keeton, Gordy) 7. Factors for Assessing Reasonableness of Asserting PJ over D (World-Wide, Asahi): a. Burden on D to defend itself in forum state b. Forum state’s interest in adjudicating the dispute c. P’s interest in obtaining convenient and effective relief, at least when that interest not adequately protected by P’s power to choose the forum d. The interstate judicial system’s interest in obtaining the most efficient resolution of controversies e. Shared interest of several states in furthering fundamental substantive social policies

INTL. SHOE V. STATE OF WASHINGTON (p. 625) Beginning of modern rule on constitutional PJ. Missouri corporation shipping shoes to customers in Washington state and the state wanted to tax the corporation. Intl. Shoe was not placing orders in Washington Holding: Supreme Court held that a state can assert jurisdiction over a nonresident if the nonresident has minimum contacts so that it is fair play and substantial justice to say to nonresident “you must stand and defend in this court.” o Minimum contacts: some relationship with the forum state o Contact must be reasonable enough that fair play and substantial justice are served o Minimum contact must relate to forum state

HANSON V. DENCKLA (p. 639) Woman of great wealth who establishes trust in Delaware, reserves power over trust, and then moves to Florida. Woman dies. Two heirs filed a complaint in Florida, and Florida court said it had jurisdiction over the trust. FL had contacts with deceased, some of her heirs, and deceased estate. But, Supreme Court held that FL did not have jurisdiction over because Delaware trust did not have minimum contacts with FL, and did not voluntarily elect to subject itself to FL or to have contacts with FL. Only unilateral activity on P’s part: she moved to FL. Was not D’s choice.

WORLD-WIDE VOLKSWAGEN CORP. V. WOODSON (p. 641) P suffers injury in car accident in Oklahoma. P files products liability action in OK (where accident happened). Car was purchased in NY. D-company incorporated in NY. D does no business in OK, did not ship or sell any products to or in OK, had no agent to accept process, and did not purchase advertisements in any media calculated to reach OK. Only evidence of D’s contact to OK was the car driven by P to OK. P argues in part that it was foreseeable a car sold in NY could end up anywhere, including OK, because car is inherently mobile device. Holding: Foreseeability alone has never been sufficient benchmark for PJ under Due Process Clause. However, court notes foreseeability not irrelevant, but foreseeability not merely that product will find its way 33 into forum state, but that D’s conduct and connection with forum state are such that s/he should reasonably anticipate being brought into court. The relationship between D and the forum must be such that is “reasonable…to require the corporation to defend the particular suit which is brought there” Reasonableness gauged by examining several factors – above:

BURGER KING Ds are from Michigan and enter franchise agreement with Burger King, located in Florida. Supreme Court held that Ds subject to FL’s jurisdiction for a number of reasons: 1. Contractual arrangement 2. Contract was for 20 years 3. Ds agreed to be bound by rules established in FL 4. Forum-selection clause stipulated FL law

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ASAHI METAL V. SUPERIOR COURT OF CALIFORNIA (p. 660) Products liability suit, where Gary Zurcher severely injured and wife killed while riding his motorcycle on highway in CA. Zurcher alleged that rear tire suddenly loss air and that tire, tube, and sealant defective. Zurcher named as defendant Cheng Shin, who in turned filed cross-complaint seeking indemnification from its codefendant, Asahi, which manufactured tube’s valve. Most claims eventually settle, except indemnity action against Asahi. CA: Superior Court finds PJ, Ct. of Appeals quashed summons (reversing Superior Ct.), and Sup. Ct. of CA reverses, finding that D placed components into stream of commerce sufficient for PJ to be exercised in CA. ‐ Stream of commerce: D will be jurisdictionally vulnerable wherever product shows up, and D knew product may end up in CA, among other places ‐ 4 justices: Manufacturer must also engage in conduct directed to forum state: advertise, service products, distributor, agents in state, for state to exert PJ over D

VERMEULEN V. RENAULT (p. 669). PJ over foreign corp that advertised to Americans and P American 11th circuit found jurisdiction over French auto manufacturer in design defect action in state of Georgia. Distinguished from Asahi because P was not foreign corp. but U.S. citizen, case was about product safety (not indemnity), and D had marketed car to American customers.

CALDER V. JONES (US 1984) (p. 654): Knowingly & intentionally cause injury from outside state Jones (P) sues Calder, editor and Prez. of the National Enquirer, for libel (alleging she drank too much) and infliction of emotional distress. Newspaper headquartered in Florida, but a disproportionate number of copies of the newspaper sold in California – 600,000 of 5 million sold. Holding: Court finds that magazine subject to CA state law because: 1) it’s intentional and allegedly tortious actions were expressly aimed at CA (P lives in CA and her professional reputation suffered in CA) 2) Newspaper knew that effect would be felt disproportionately in CA 3) D has large readership Enough for them to reasonably foresee being haled into court

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PERSONAL JURISDICTION: General Jurisdiction “Continuous, systematic, substantial” relationship with forum state such that not unreasonable to appear in court

PERKINS V. BENGUET (p. 634) Philippine company relocates to Ohio during WW II. Court found general jurisdiction. D’s activities: 1. Business routinely transacted in state 2. Signed contracts in the state 3. Recruited employees in the state 4. Kept office in the state 5. Maintained records in the state 6. Hired subcontractors within the state 7. Held director’s meetings 8. Drew salary checks

HELICOPTEROS NACIONAL DE COLOMBIA V. HALL (p. 726) Helicol provides helicopter transportation for oil and construction companies in South America. Principal place of business: Bogota. On 1/26/76, helicopter owned by D crashed in Peru killing, among others, 4 U.S. citizens employed by Consorcio, a Peruvian consortium, working on pipeline in Peru. Consorcio part of joint venture with Williams-Sedco-Horn (WSH), headquartered in Houston, TX. Helicol provided transportation services to Consorcio/WSH. Helicol’s contacts with TX: negotiation session in TX between Consorcio/WSH and Helicol; for 7 years, purchased 80% of its fleet of helicopters from Texan company; sent pilots to TX for training; received payments drawn on Texan banks from Consorcio/WSH (p. 727) Court held that Helicol’s contacts with Texas insufficient to satisfy requirement of general jurisdiction: higher burden that specific or long-arm jurisdiction

In Rem Jurisdiction State has jurisdiction over property in the state

Quasi : State has power over the property: enables the state to seize D’s property and assert jurisdiction over D, even if dispute does not arise out of property.

SHAFFER V. HEITZNER P (NY resident) owns one share of Greyhound stock and brought shareholder derivative suit against 27 officials of Greyhound for mismanaging company and allowing company to engage in anticompetitive behavior, resulting in a lawsuit and liability in the millions of dollars imposed in Oregon. Greyhound Lines incorporated in CA and principal place of business in AZ, but Greyhound parent company incorporated in DE. P attaches all of the stock of officers and in DE, stock is where company incorporated. Purpose of sequestration law is to compel the defendant to show up in court. Once D shows up, the sequestration usually ends, unless there are some extenuating circumstances. Supreme Court got rid of quasi in rem jurisdiction for asserting PJ: “From now on, all assertions of PJ will be tested by the principles of Shoe and its progeny.” Need minimum contacts, fair play, substantial justice.  But, in many states, the long-arm statute does not go to constitutional limit. Can get jurisdiction over D through quasi in rem, say, in New York, for defamation suits (under NY’s long-arm statute) where D owns property in the state.

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TERRITORIALITY State can still exert PJ over D while D in forum state voluntarily even if presence transitory

BURNHAM V. SUPERIOR COURT OF CALIFORNIA (p. 710) Burnham (a NJ resident) was served court summons and divorce petition in CA while on business trip in CA and visiting his children, who were living with the mother. Burnham makes a special appearance in CA court to challenge PJ. Burnham filed a writ of : tell the court to stop doing something. The court denied Burnham’s request to quash service of process. The court holds that service of process is a valid form of asserting personal jurisdiction over Defendant. Transitory presence in the state is sufficient for PJ to attach. CONSENT

CARNIVAL CRUISE V. SHUTE (US 1991) p655: Forum Selection Clause = Consent Shutes bought cruise ticket which contained forum selection clause (Fla). Brought suit against Carnival in WA, Carnival moved for Sum Judg because case had to be heard in Fla. Court upheld forum selection clause = consent to PJ. To invalidate a forum selection clause, must: o Forum-selection clauses  most international companies choose a certain forum (American courts are really respectful of forum-selection clause  especially between two sophisticated parties). 4 considerations for forum selection clause: o No indication that forum selected in “bad faith” (i.e. if forum selected does not allow personal injury suits  may be bad faith) o No fraud or overreaching o Ps conceded notice of forum selection clause o Did not demonstrate forum non conveniens

ALS SCAN V. DIGITAL SERVICE (4th Circuit 2002)(p. 687): PJ in Digital Age ALS sought to exercise PJ over Digital in MD. Digital was GA corporation w/ place of business in Atlanta. Sought to establish general jurisdiction by repeated & systematic contacts since claim did not arise from MD- specific transaction. If the fact that your website can be accessed from any state made PJ ok, everyone who puts information on the internet would be subject to PJ everywhere. Develops a scale for internet business/contracts ranging from passive site that others can use, to knowing & repeated transmission of files  to have PJ you must show: 1. Directs electronic activity into state 2. With the manifest intent of engaging in business or interactions in the state 3. Glannon: no PJ if you just advertise on internet: must have negotiation with, or sale to, P in forum state. non-internet advertising in a national magazine is also insufficient on its own.

No PJ Maybe Specific PJ? Definitely PJ (Maybe General Jurisdiction in the future?) Passive Posting of Info 3 factors: Continuous Contracts and (noninteractive) 1. Did D “direct” activity into the state? Transmissions over the Internet with 2. Was that for a commercial purpose or persons in the forum state  specific other “interaction”? (court struggling jurisdiction with facilitating internet commerce  but still allow Ps to sue somewhere. Trying to strike balance) 3. Activity created cause of action in forum state Court suggests that all 3 prongs are needed. Need all 3 prongs in order to establish PJ 37

VENUE State venue rules identify the county in which an action may be brought, federal venue rules identify the proper federal judicial district. Venue is a statutory, not constitutional right so it can’t be used in a collateral attack (ie, not needed for valid judgment). If you don’t raise it in 12b motion, you waive it.

28 USC §1391. Venue Generally (a) Diversity cases – authorizes venue in: (1) A judicial district where any defendant resides, if all defendants reside in the same state, (2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or where a substantial part of the property that is the subject of the action is situated; or (3) fallback only: a judicial district in which any defendant is subject to PJ at the time action is commenced, if no other district in which action may otherwise be brought.  if other two don’t apply (b) Federal Question cases– authorizes venue in: (1) A judicial district where any defendant resides, if all defendants reside in the same state, (2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or where a substantial part of the property that is the subject of the action is situated; or (3) a judicial district in which any defendant may be found, if there is no other district in which the action may be brought. (c) Corporation –a D that is a corporation shall be deemed to reside in any judicial district in which it is subject to PJ at time action commenced, i.e. where it has sufficient contacts

1391(f) venue for a foreign state

“Local Action Rule” Land cases – case brought where land located

28 U.S.C. §1404. (a) The court may transfer a case to any district in which it might have been brought for the convenience of the parties and witnesses and in the interest of justice. 1. Where events occurred, records located, parties are 2. “Might have been brought”  Original SMJ, original PJ, original venue  EXAM QUESTION: whether to transfer from one federal court to another federal court. Testing you on whether there is PJ and whether § 1391 allows you to move to the venue

28 U.S.C. §1406. Cure or Waiver of Defects (a) If a case is filed in a district that lacks venue, then the court of that district may dismiss the case, or, in the interest of justice, may transfer it to any district where it could have been brought.

For a person: Venue is based on their domicile: permanent home to which you intend to return whenever you’re absent. For a corporation: anywhere it is subject to personal jurisdiction (depending how big, may be everywhere if it has systematic ongoing contacts for general jurisdiction.)

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REMOVAL (state  federal court)

28 US § 14jn. Actions Removable Generally 4. Only defendant can remove 5. D can remove to federal court any claim where the federal court would have original jurisdiction (diversity/federal question jurisdiction)…. Keep in mind SMJ and well-pleaded complaint rule: could be a back-door to these issues 6. For federal question case, citizenship of D is irrelevant 7. For diversity suit, D cannot remove case filed in D’s home state (diversity is used to prevent bias against out of state defendants) 8. If multiple Ds, all must sign removal petition 9. Only original, not third-party Ds, may remove a case 10. Notice of removal shall be filed within 30 days after receipt of the original pleading by the defendant; or it is waived. 11. Additional 30 days after any amendment to complaint that provides grounds for removal. 12. Proper process & notice required under § 1446.

BURNETT V. BIRMINGHAM BOARD OF ED (ND Ala 1994)(p. 810). Still need predominate federal question Claim based on working out of classification. Federal claim (unspecified denial of due process) tacked on to predominately state claims. Def had removed to federal court, Ps sought to remand – and succeeded. Where state law predominates, 1441(c) allows the whole case to be sent back at judge’s discretion.

Rule 81(c) Removed Actions – picking up in Fed Court 1. Repleading: not necessary unless the court orders 2. Answering: if the defendant has not yet answered, she must file an answer within 20 days after receiving through service or otherwise the initial pleading, or within 5 days after filing the petition for removal, whichever is longest. 3. Trial by Jury: demand trial by jury within 10 days after the petition for removal is filed (def) or within 10 days after receiving notice of removal (P). A party who has made an express demand for trial by jury in state court does not need to make another express demand in federal court. If state law does not require an express demand, then the party need not make an express demand unless the court directs that they do so.

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FORUM NON CONVENIENS When the court chosen by the plaintiff is inconvenient or poses an undue hardship on the defendants, who must petition the court to transfer the case. Not related to venue. Forum non is common law doctrine, not statutory.

Restrictions on Transfer of Venue 13. A NY state court cannot transfer to NJ  no interstate transferring 14. A federal court cannot transfer to a state court 15. An American court cannot transfer to a foreign court Have to use forum non conveniens

Rules/Features of Forum Non Conveniens 1. Respect P’s choice of forum 2. Forum non conveniens act as a check on the excessive use of our jurisdictional principles vis-à-vis long- arm statute 3. Very harsh on P  results in dismissal of the action, where P has to re-file. a. But court will not grant unless i. We know there is an alternative forum ii. D must waive statute of limitation defense iii. D must agree to be subjected PJ 4. Change of law not substantial factor in forum non conveniens

PIPER AIRCRAFT V. RAYNO (US 1981) (p. 751): Factors for Forum Non Conveniens Plane made in PA, propeller made in OH, crash in Scotland. P sued on behalf of families of deceased (all scots).P filed in CA state court; Def removed to federal court (CA), then moved for transfer to fed ct in PA. Ties to Scotland: where plane was flying, where plane serviced, where people were killed, probably Scotland law applies. D moves for dismissal on forum non grounds. P objected because US law more favorable (strict liability) than Scottish. But change of law is not substantial factor in FNC evaluation. Deference to P’s preference (though less for non-American plaintiffs as in this case). Judges have discretion in forum non motions  Balancing test: Presumption in favor of P’s choice of forum can only be overruled by these factors: 1. Private interest factors: convenience for litigants, access to evidence, witnesses, documents, etc. 2. Public interest factors: who has interest in litigation, court congestion, burden on jury members because of confusion, application of foreign law, state interest in case/localized controversy 3. P must have a meaningful alternative forum: can hinge dismissal on FNC grounds on Def’s waiving objections to personal jurisdiction, or statute of limitations Grants Def’s motion: evidence re: design/manufacture of plane is in US, otherwise connections to Scotland are “overwhelming”: witnesses to crash, pilots training, topography, wreckage of plane. If tried in US, Scottish law would apply to one Def and US law to another – too confusing for jury. Don’t want to make US courts too attractive to foreign Ps: congestion. Scotland has strong interest in litigation.

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NOTICE Important part of Due Process (5th and 14th Amendments): letting you know that the Court is planning to adjudicate your rights.

Rule 4 – important parts:  4(e)(2) gives us three ways to serve a defendant: 2. personal service 3. substituted service at defendant’s home with a person of suitable age and discretion who resides there. 4. service upon defendant’s agent  4(e)(1) incorporates state law on service for the state in which the district court sits, or where the service is effected.  4(d)(2) provides incentives for a defendant to agree to waive formal service and instead accept service by mail. If the defendant does not agree to waive formal service, she must pay for the costs of effecting such service.  4(k) provides federal courts with personal jurisdiction over defendants.

Mullane v. Central Hanover Bank, US 1950, p671: Notice should be reasonably calculated to reach intended parties Suit about notice to beneficiaries of a settlement of trust fund under NY banking law. Because they have property interest in the trust, would deprive them of property under 14th amendment if due process not followed. Constructive notice (by publication) rarely actually seen. Not acceptable as a mere gesture, only ok if no other feasible way to reach people.  Notice must be such as one actually desirous of informing the absentee might reasonably take: NY law of notice by publication not constitutional because does not require higher standard of communication when feasible.  It must be reasonably calculated to apprise parties under the circumstances  In this case, they had the addresses of trust beneficiaries: must send certified letter

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SUBJECT MATTER JURISDICTION State Courts have general jurisdiction: can hear all matters not exclusively reserved for Federal Courts, including Federal Question & Diversity.

US Constitution, Article III, Section 2: “Judicial power shall extend to all cases… arising under this constitution, the laws of the United States, and Treaties… to controversies…. Between Citizens of different States.” Federal Courts have two grounds for jurisdiction:  28 US § 1331 – Federal Question. “all civil actions arising under the constitution, laws or treaties of the United States.”  28 US § 1332 – Diversity: between citizens of different states o citizens of a state and citizen of a foreign nation. o Must be complete diversity: any Def from same state as any P defeats diversity o For Corporation: State where its Incorporated, or Principal Place of business (administrative center or center of operations)  thus can be citizen of 1 or 2 states. o For Person: domicile = true, fixed & permanent home (see Mas v. Perry) . more than just owning property . change occurs when you physically arrive in new state with intent to remain  amount in controversy greater than $75,000 o good faith amount, even if final judgment is less. To dismiss, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount. o Aggregation of Claims: . plaintiff may aggregate all claims against a single defendant, but not claims against different defendants. . plaintiffs joining together under Rule 20 or pursuing a class action under Rule 23 may not aggregate their claims to meet the minimum. but if P1 has met amount in controversy, court has supplemental jurisdiction over P2’s claim, even if less. . no supplemental jurisdiction over D2 without 75K being met.

Louisville RR v. Mottley, US 1908 (p. 765): Fed Q must be cause of action, not defense Motleys accepted lifetime RR passes in settlement of a claim; sued when RR failed to renew passes after 1 year. Motley’s pleading states that RR’s breach is based on misapplication of a Congressional act prohibiting free passes. No diversity – all KY citizens. No federal question: the case arose out of a breach on contract, not out of a federal law. Pleading is anticipating federal law as a defense. Even though it got to the Supreme Court, subject matter jurisdiction is constitution and thus not waivable.  “well pleaded complaint”: Federal issue must be necessary to proving plaintiff’s claim (fed issue present if complaint includes it, by articulating only law necessary to establish claim).  need not allege violation of Fed statute, as long as Federal issue is “substantial” and “embedded” and necessary to resolution of claim.

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SUBJECT-MATTER JURISDICTION: Supplemental Jurisdiction U.S.C. § 1367

Checklist for supplemental Jurisdiction 1. Same case or controversy (common nucleus of operative fact) 2. Federal Issue  does federal question predominate? (b doesn’t apply) 3. Diversity case  P can’t make claims that will disrupt diversity 4. Discretionary factors

Pendent vs. Ancillary Jurisdiction ‐ Pendent Jurisdiction: jurisdiction over state claim that is appended onto federal claim ‐ Ancillary Jurisdiction: jurisdiction over claims asserted by Ds that implead and assert crossclaims and counterclaims against a third-party D ‐ Rule: for federal court to exercise jurisdiction over the pendent state claim, the state and federal claim(s) must “derive from a common nucleus of operative facts” ‐ Rationales: efficiency and judicial economy. o At same time, courts do not want Ps in court where mostly asserting state law claims in federal court ‐ Reasons for not Asserting Jurisdiction over the State Claim: o If federal claim dismissed before trial, state claim(s) should be dismissed too o If state issues predominate and federal claim just appendage to state claim(s) o If there is potential for jury confusion by applying two divergent theories of relief

UNITED MINEWORKERS V. GIBBS (p. 793) Ps brought action under federal labor management act, and also TN common-law tort action. P from TN and member from union also TN, so state tort claim jurisdictionally insufficient for federal court. Question that Supreme Court decided was whether you can append the jurisdictionally insufficient TN common-law claim to the jurisdictionally sufficient federal claim  Court said yes, because both actions arise from same “common nucleus of operative facts” and it would be efficient and economical to try them together, even though there would be no jurisdiction of TN claim alone. Also employed substantiality test for determining whether P’s claims substantially state claim or not, and said no.

OWEN EQUIPMENT AND ERECTION COMPANY V. KROGER (p. 797) Wrongful death action. Wife sues Omaha Power District (OPPD) in federal court in Nebraska. Basis of subject- matter jurisdiction was diversity. No federal question. No federal claim. P lives in Iowa and OPPD, a Nebraska resident. OPPD impleads Owen (Rule 14) and Owen is an Iowa resident. Owen files motion for summary judgment and meanwhile, P files amended complaint to sue Owen. Problem is that there is no diversity then. Court held: Gibss standard: “common nucleus of operative facts” is not enough for federal jurisdiction. By P’s suing Owen, the claim violates . It is okay for D to implead non-diverse, third- party  Overwhelming policy rationale: does not want diversity cases in court where it is primarily not a federal question (“diversity jurisdiction is poor cousin to federal question jurisdiction”)

FINLEY V. UNITED STATES (p. 802) P’s decedents were killed when their plane struck electric power lines on its approach to a city-run airfield in San Diego. P filed the present action against the United States under the Federal Tort Claims Act (FTCA), claiming that the Federal Aviation Administration had been negligent in its operation and maintenance of runway lights and in its performance of air traffic control functions. Petitioner subsequently moved to amend her complaint to add state tort law claims against both the city and the utility company that maintained the power lines. Court 43 says that federal court cannot hear the claim where P sues Ds (both are CA residents). Finley is a mix of Gibbs and Kroger – “pendent party.” Federal courts were doing this below and then Supreme Court said “no”  No pendent party jurisdiction for claims raised by P.

U.S.C. § 1367: SUPPLEMENTAL JURISDICTION: CONGRESS’ LEGISLATION (1990)  current law on supplemental jurisdiction 1. §1367(a): Except as provided in (b) and (c)  Codifies Gibbs case: supplemental jurisdiction recognized over everything within a case or controversy under Article III of Constitution, which embraces everything arising within a “common nucleus of operative facts,” from Gibbs a. It is okay for D to implead a non-diverse, third-party if the basis of the jurisdiction is federal question 2. § 1367(b): Codifies Kroger decision and rejects Finley decision  Supplemental jurisdiction is prohibited where the basis of federal jurisdiction is solely diversity (§ 1332) and where the jurisdictionally insufficient claim is one filed by plaintiff under the following FRCPs: a. Rule 14: third-party practice b. Rule 19 and 20: permissive and compulsory joinder c. Rule 24: intervention 3. § 1367(c): supplemental jurisdiction is discretionary: federal court may (or should) decline federal jurisdiction when: a. State claim raises novel or complex issue of state law b. State claim predominates over the claims which federal court would have original jurisdiction (i.e. federal question claims) c. Claims over which federal court has original jurisdiction have been dismissed (vis-à-vis motion to dismiss, summary judgment, settlement)

§ 1367. Supplemental Jurisdiction [text] (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, 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 of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. (d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period. 44

(e) As used in this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

Class Actions 1. Congress felt that some cases should be able to be heard in federal court 2. MMTJA: intended single mass accident  something big that happens and all of these different victims from all of these different states. Create inefficiency if different states’ laws conflict  helps Ps in lawsuit (right to intervention and nation-wide service of process) a. Passa: jurisdiction in federal court applies because threshold requirements of b. Issue is whether §1369(b)  “substantial majority”: more than 50%, looking at all potential Ps and not just the Ps who have come forward. Rhode Island less than 50% of residents. Who are most of the complaints filed against? The band member. 3. USC § 1369: allows district court to have discrete jurisdiction where over 75 people have died under certain circumstances. No amount in controversy required. Limited applicability. 4. Class Action Fairness Act: the threat of potential exposure from class-action consumer case. Potential for large enough for Congress was concerned with the threat of these a. Expands federal jurisdiction over class action lawsuits. i. Allows case to be brought to federal courts 1. Claims exceed $5 million ii. Preston case: statutory exception. Suit against Memorial Hospital. Ps patients and relatives for people who had died. 1. Preston: if two-thirds of class are citizens of state, then should be in state. 2. Local controversy exception 3. Discretionary provision: overall objective is to see whether the case is substantially a local controversy

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FINALITY AND PRECLUSION: CLAIM PRECLUSION/RES JUDICATA

Reasons for Finality To avoid: 1. Waste of scarce resources 2. Harassment of defendant 3. Risk of inconsistent results (i.e. case over who owns a piece of property) 4. Do not want party to have advantage in subsequent case by knowing other party’s defenses 5. Finality  have opportunity to move on with one’s life

Counterarguments: 1. What if subsequent events demonstrate that something was wrong  Too bad

Three Prongs to Res Judicata/Claim Preclusion: 1. A prior suit that proceeded to a final judgment on the merits a. Cannot get a second case dismissed b. Appealing does not preclude you from dismissing 2. The present suit arises out of the same claim as the prior suit a. “Same nucleus operative facts” b. “Were or could have been raised” c. Fact-based test 3. The parties in both suits are the same, or in privity a. Privity = “Substantial control” of original P or “virtual representation” by initial P b. “Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on same cause of action.” In determining the scope of cause of action, typical test is “same transaction.” (Car Carriers, p. 973)

What Constitutes Final Judgment on the Merits (p. 878) 1. “With prejudice”: means party cannot come back 2. “Without prejudice”: can come back

CAR CARRIERS V. FORD (7th Circuit 1989) (p. 870). Same Claim, not Same Legal Theory Earlier 1982 lawsuit based on Sherman act was dismissed with prejudice. New claim filed based on RICO act, Interstate Commerce. Ps argue Res Judicata should be denied because new suit presents a “materially different analysis of rights, duties and injuries.” Court says no thanks – that would move us away from the goals of res judicata. Do your homework and bring all your conceivably related claims & causes of actions at once as the Federal Rules encourage. Holding: Cannot bring up new legal theories relating to same transaction or occurrence Rule for res judicata: If you could bring a claim at the time it was filed, given that FRCP allow liberality re: amendments and joinder of claims, then if you do not raise those claims, you lose them.

GONZALEZ V. BANCO CENTRAL (1st Circuit 1994) (p. 879): Defines Privity for Preclusion Test for identity of parties & privity: nonparties can be precluded if  Substantial ability to control party’s involvement in 1st suit (legal strategy, settlement, and appeal decisions)  Virtual Representation: party in 1st suit was nonparty’s de facto representative. More than just identity of interests: must have actual or constructive notice of 1st suit. 1st case: Rodriguez plaintiffs lost after 7 week trial. Gonzalez Ps tried to join first suit and were barred – so would deprive them of DP to use res judicata here. Also attempt to join suit was 5 years into it (after many legal decisions made), so obviously no substantial control. 46

HEACOCK V. HEACOCK (p. 876): when 1st court couldn’t hear 2nd claim Ms. H was able to file tort suit against husband for assault that allegedly occurred while they were married, despite having offered it as evidence in divorce proceedings. Probate court (where divorce was adjudicated) did not have power to adjudicate a damages claim, only to dissolve marriage and allocate property. Probate judge does not make findings of fact so technically not “actually litigated.”  Threshold issue: a court that issues a judgment in a divorce decree has limited jurisdiction. The divorce court could not have decided the issue that the husband is alleging has already been adjudicated (re: the husband’s assault of the wife). Issue has to not only have been present, it has to have been litigated by the parties. Also, Delahunty v. Mass. Mutual Life Insur. (p. 877): wife able to bring post-divorce tort suit against former husband for fraudulently converting proceeds of her life insurance policy

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ISSUE PRECLUSION/COLLATERAL ESTOPPEL Functions: efficiency for courts & parties; predictability & fairness. Must be careful about using it because it has DUE PROCESS implications. Can only be used against a party that has already litigated issue (or privy). May not be able to use CE if the standard of proof differs significantly.

Collateral Estoppel – Rules/Features: 1. Rule: When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim (Restate. of Judgments, Hoult) a. Same issue b. “Actually litigated”: does not mean that there needed to be an evidentiary hearing or discovery. In Jarosz, parties briefed the issue allegedly precluded (whether there was attorney-client relationship) and hearing before judge, after which judge made decision  sufficient for actually litigated requirement (Jarosz) – cannot be settled between parties; has to have been fully litigated c. Final judgment d. Essential to the judgment: had a bearing on the case i. If general verdict: difficult to discern issues (vs. special verdict) 2. An issue may be actually decided for collateral estoppel purposes even if it is not explicitly decided, for it may have constituted, logically or practically, a necessary component of the decision reached (Hoult) 3. Heightened burden – court must be certain the issue was already decided in earlier case (Hoult) 4. Issue must have been central to arriving at a judgment in the earlier case (Hoult) 5. Application of issue preclusion not conditioned on opportunity for discovery and evidentiary hearing (Jarosz) 6. The determination of an issue in prior proceeding has no preclusive effect where the party against whom preclusion is sought had significantly heavier burden of persuasion with respect to issue in initial action than in subsequent action; burden has shifted to adversary; or adversary has significant heavier burden than he had in first action (Jarosz) a. OJ  found not guilty in criminal suit (beyond reasonable doubt) is not able to claim that he is not liable in civil trial 7. Settlement generally carries no preclusive effect because no issue has been actually litigated (Notes after Jarosz, p. 897) 8. Issue preclusion operates when an administrative agency resolves issues in its judicial capacity and losing party seeks to relitigate those issues in a court action 9. Issue precluded from being decided if involved the parties or their privies 10. Issue has to have not only been raised, but also litigated by the parties 11. For offensive non-mutual collateral estoppel (Parklane): a. Could P join earlier suit? b. Is it otherwise unfair to allow P to sue in subsequent suit?  Did D have to fully and vigorously defend itself in earlier suit? i. Seriousness of allegations and ii. Foreseeability of subsequent suits c. Judgment in prior suit inconsistent with previous actions? d. No difference in procedural opportunities (i.e. both in federal court)

Discretionary issues:  Do not want to give P incentive to Wait & See, so only grant it where P could not have joined 1st case  Foreseeability of later suits (tied to incentive)  Did Def have incentive to strenuously litigate in 1st case? If not, P would be exploiting this disadvantage

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when stakes are higher.  Disparity in procedural rules  Inconsistency with prior judgments (would be fair to selectively use CE where it suits you!)

DAVID HOULT V. JENNIFER HOULT (p. 890) Daughter originally sued father for physical and sexual abuse, including rape: alleged assault, battery, IIED, breach of fiduciary duty. Verdict awarded in daughter’s favor for $500K. Subsequently, daughter began calling professional assns. and alleged father raped her. Father then filed instant action alleging defamation. Daughter alleged that jury had determined he had raped her, and father barred by collateral estoppel from bringing his action relitigating this finding. Court found that rape charges were central to daughter’s earlier case, and the hurdle in that case of statute of limitations was overcome by the rape allegations and the repression of memory that such abuse triggers  the defamation suit “seeks to retry the central issues in the prior assault case between the same two litigants.”

JAROSZ V. PALMER (p. 894) Jarosz and 3 business partners agreed to purchase business, Union Products, and hired lawyer, Palmer, to assist with acquisition and financing. After acquisition, each partner had 25% interest. Relations turned sour and other 3 partners terminated Jarosz from his position as employee. Jarosz sued 3 partners for breach of fiduciary duty and wrongful discharge. Palmer represented 3 partners in that lawsuit. Jarosz moved to disqualify Palmer because of conflict of interest, alleging Palmer represented Jarosz during acquisition dealings. After parties submitted briefs on issue and had hearing before judge, after which judge ruled that no attorney-client relationship bet. Jarosz and Palmer existed. Jarosz then sued Palmer for breach of fiduciary duty, breach of contract, legal malpractice, and other violations. Court held that, while issue had been litigated by parties in earlier suit (briefed and hearing), the issue was not essential to final judgment in the earlier case, and so Palmer’s motion to dismiss based on collateral estoppel denied.

PARKLANE HOSIERY V. SHORE (US 1979) (p. 897): Offensive Non-Mutual Collateral Estoppel Suit 1: SEC sues Parklane & found that it had issued a materially false & misleading proxy statement in a merger (suit filed after Suit 2 but decided before). Suit 2: Stockholder derivative action.

Blonder-Tongue allowed defensive non-mutual CE: a defendant was estopped from re-litigating validity of a patent after he had already lost to a different Plaintiff. This case marked abandonment of mutuality requirement in federal courts.

Discretionary Factors given more weight in offensive non-mutual collateral estoppel Here, P could not join SEC suit; high incentive to litigate SEC suit & foreseeable that shareholder action would follow, so D would have litigated fully and vigorously; both use FRCP; no contradictory prior judgment.

Defensive use of collateral estoppel: D prevents P from bringing issue against him that P lost against another D 1. P has incentive to bring claims against all Ds at same time

Offensive use of collateral estoppel: P prevents D from claiming “not guilty” about something if D previously lost against another P 1. Does not promote judicial economy in same manner that defensive use does  “wait and see” 2. May be unfair to defendant, i.e. if did not defend vigorously in first proceeding b/c stakes were low (i.e. nominal damages)

Complications to Finality (Moitte) 49

Antitrust violations – unclear whether private plaintiffs can recover. Two suits in federal courts, both dismissed for lack of standing. A appeals & seeks cert to Supreme Court. B files in state court. Supreme Court rules on another case that private Ps ok, and A finally prevails, but B is defeated on claim preclusion… shows huge value of Finality and incentive to seek appeal rather than keep filing. You don’t appeal, you are done.

ALLEN V. MCMURRY(US 1980) (p. 916) P brings $1 million civil rights action after being convicted of heroin and assault with intent to kill. Alleges conspiracy between police and state to violate his 4th Amendment rights, unconstitutional search and seizure, and police officer assaulting him following arrest. Criminal case had suppressed some of seizure but not seizure in plain sight. Court held that res judicata applied on the issue of constitutionality of the police officers’ conduct.

Court acknowledged in dicta that there may be reasons to grant an exception to res judicata and collateral estoppel if state law did not provide fair procedures for litigation of constitutional claims (p. 919) or where state court failed to acknowledge existence of constitution principle on which litigant based his claim  “full and fair opportunity” to litigate claim

Dissent: freedom of choice of forum illusory.

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ATTORNEY’S FEES 42 USC § 1988 Rule 68

American Rule: losing party does not pay prevailing party’s costs.

Innovative claims not discouraged by fear of paying extra costs if you lose.

 Rule 54(d): court can allocate costs & atty’s fees – For Sanctions (11 or 37) or if Statutory Authority  Civil Rights Atty’s Fees Act: 42 USC§ 1988: allows successful plaintiffs to shift fees to defendants (but not vice versa) o Motion to award fees must sometimes be accompanied by brief to explain why you should be considered prevailing party (ie, if you got declaratory judgment but no damages) o Lodestar approach: (hours reasonably spent on case) x (reasonable rate). Can be adjusted based on factors like difficulty of getting an atty for that case, etc.  Rule 68: offer of judgment. At any time before 10 days before start of trial, D can offer a judgment to P for a specified sum. If judgment finally achieved is less, P must pay D’s fees for interim between offer and judgment (Marek v. Chesny)

Other Hurdles to Attorney’s Fees in Civil Rights Cases  Evans v. Jeff D situation: p. 150: Defendants offered settlement, provided that Ps would waive statutory attorney’s fees; results in ethical conflict for lawyers  “difficult decision”  Argument: Ps should be entitled to fees if litigation serves as catalyst of some change in relationship of parties, even if not monetary damages. Supreme Court held in Bukhannon Bd. and Care Home v. W. Virginia (2001) that federal laws providing for fee-shifting to prevailing parties inapplicable in absence of actual judgment or court-approved settlement

MAREK V. CHESNY (US 1985) (p. 140). “Costs” incl. attorney’s fees under Rule 68; can coexist with § 1988 Three police officers, in answering a call re: a domestic violence disturbance, shot and killed respondent’s son. Father, as administrator of his son’s estate, filed suit against the officers in U.S. District Court and under state tort law. Prior to trial, police officers offered father $100,000 offer of judgment (Rule 68). Father did not accept the offer. After trial, father was awarded $5,000 in state wrongful death claim, $52,000 for the section 1983 violation and $3,000 in punitive damages (total $60,000 judgment). Father filed request for $171,692.47, which included attorneys’ fees incurred after settlement offer. - P argued that could not apply in 1988 civil rights cases. Court held it could: CRAFA encourages meritorious civil rights suits; Rule 68 encourages settlements: no conflict. - Brennan dissents: in part because Civil Rights claims can’t be measured in $$; and Rule 68 only gives P 10 days to accept/reject: this ruling increases D’s power to pressure for lowball settlement. - Majority suggests that prevailing party whose final judgment is lower than D’s offer of settlement, P has not receive monetary befits from postoffer services of attorney  how can you quantify process values of prevailing vs. settlement where D may deny liability as a provision, esp. in civil rights cases which vindicate certain rights

CITY OF RIVERSIDE V. RIVERA (US 1986) (p. 152). Amount of damages only 1 factor in determining atty’s fees Civil rights case where attys were very young. Court says that while amount of damages is certainly to be considered, a pure monetary % (like in tort) would be inappropriate because many civil rights cases involve vindicating rights and not just damages. It would undercut congress’s intention to empower private attys

51 general. Lodestar used market rate even though attys were very young because they did excellent work. - The case within Riverside, Hensley v. Eckerhart (p. 153): the important case which established how to calculate attorneys’ fees - “Lodestar” = number of hours directly related to litigation (X) a reasonable hourly rate - Three things to note from Riverside 1. Re: Number of hours “directly related to litigation” = whether work on claims that are unsuccessful can be counted towards the lodestar calculation, specifically the number of hours worked  Court rejected the argument against this (p. 153) saying plaintiffs’ lawyers get compensated for all time related to the litigation 2. Re: Reasonable hourly rate: the quality of the representation is more important than anything else; not the age or experience of the attorney(s) on the case 3. Amount of the damages does not have to be proportional to the attorneys’ fees a. No hard and fast rules, but up to the court to determine them  but we should determine b. Expression for asking for more money than the going rate for great representation is “enhancing the lodestar”

Hourly Billing: (excerpt by William G. Ross) Originally hailed for objectivity and efficiency, now criticized for encouraging inefficiency, excessive litigation, and fraud. According to Ross, padding hours remains the exception rather than the rule.

Contingency Fee Client signs an agreement that promises to pay the attorney a specified percentage of any recovery achieved through litigation, but makes it clear that the client owes no fee if there is no recovery. Makes the lawyer an investor with the client, makes the lawyer more sensitive to the stakes the case.

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POLICY ISSUES

Rules & Standards Scalia: skeptical about reasoned elaboration and suspect that standards will enable the court to translate raw subjective value preferences into law. Prefer categorization. Arguments Favoring Rules:  Fairness as Formal Equality: Rules require decisionmakers to act consistently, treating like cases alike.  Utility: Rules produce greater social welfare gains, affording certainty and predictability.  Liberty: Liberty is aided by the “rule of law.”  Democracy: Rules advocate roles among competing decisionmakers. Stevens, O’Connor, Kennedy, and Souter: skeptical about the capacity of rules to constrain value choice and believe that custom and shared understandings can adequately constrain judicial deliberation in a regime of standards. Prefer balancing, keeping an eye to the context, underlying purposes, principles, and policies at stake. Arguments for Standards:  Fairness as Substantive Justice: While rule-based decisionmaking suppresses relevant similarities and differences, standards allow decisionmakers to treat cases that are substantively alike.  Utility: While rules tend towards obsolescence, standards are flexible and can be adapted to changing circumstances.  Equality: The rule of law is a conservative doctrine, promoting substantive inequality by creating a consciousness that radically separates law from politics.  Deliberation: Standards make a judge face up to his decisions, making them visible.

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JUDICIAL MANAGEMENT Judge’s discretion to manage case provided by R16 (sua sponte intervention), R1 (speedy resolution) Advantages listed by Schwartzer (p 535) in 1978  judges are already making decisions without benefit of complete record, in disputes about discovery, pre- trial relief, class actions. This does not make them impartial or wrong  Judge who does not intervene is not necessarily more impartial than a more engaged judge.  Efficiency –define/narrow issues to be litigated, focus discovery on actually needed materials, parties may not haggle as much with the judge watching closely

Disadvantages: Resnick (p540) 1994  Informality invites risk of judges abusing power & disrupts impartiality  No appeal, no transparency re: basis for decision  Inadmissible evidence goes before the judge  Not necessarily more efficient – judicial mgt can take more time than it saves  Even if it increases the number of dispositions, that doesn’t account for quality

Minow, p 546 – Judicial Management & separation of powers Some argue that judicial resolution of complex social issues, and creation of temporary bureaucracies to implement relief, usurps congressional power. Minow counters:  Judicial intervention in legislative vacuum can spur congressional action  Unresponsive judiciary erodes public trust more than active problem-solving  Temporary administrative systems do not evolve into inflexible, expensive bureaucracies  All adjudication involves some degree of administering settlements/judgments – no bright line  Working at boundaries promotes reasoned debate

Debate over value of American Jury system Frank p. 379: juries determine parties’ legal rights often subconsciously disregarding actual legal rules. Kalven p. 379: social advantages & disadvantages  Juries create societal acceptance of harsh decisions  Important civic experience for jurors  Integrity: harder to corrupt 12 jurors than 1 judge  Jury fees are expensive to parties and impose unfair burdens on jurors Are juries competent to interpret the law? Studies show there is no more divergence btwn judge and jury on “difficult” cases than easy ones. Juries operate by collective recall. Hans & Vidmar, p 381  Juries may be better at judging – if they have experience relevant to facts (ex: mechanic in products liability involving car)  Justice requires it: most judges are rich white men, juries are more representative Exorbitant jury awards are not supported by data. juries are very consistent in terms of finding liability, but divergent in putting a dollar amount on it.

Special verdicts (p474) Ask Jury to answer specific questions  structure jury’s responses in complex cases, often in cases involving many defendants. Bifurcation: separate judgments on liability/causation and damages. Trifurcation: separate causation, liability and damages.  Efficient – no need to present on damages unless you prove liability.  Tension between formalism & precision, and narrative flexibility & context

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 Prevents jury’s sympathies for P’s injuries from bleeding into causation/liability question.  Often seen in drug cases; product liability cases – why in mass tort cases, but not individual? Used more for Mass Torts – why not for individual plaintiffs? if used at all, should be implemented based on complexity, which does not necessarily hinge on # of parties.

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