ML civ pro

7/30/2019 ML civ pro

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CIVIL PROCEDURE OUTLINE

I. PERSONAL JURISDICTION

-Whether a court has the power to hear a case regarding a certain person-Focus is always on the D-Full faith and credit clause= states constitutionally required to enforce decisions of other states regarding citizensof own state-State always has personal jurisdiction over D if domiciled there-A federal court has jurisdiction only if the state courts in which the federal court sits has jurisdiction

A. In personam jurisdiction= jurisdiction over the person; court exercises jurisdiction over the D, and can enter ajudgment to create a personal obligation to pay money or perform an act (can attach property)

B. In rem jurisdiction=jurisdiction over property; jurisdiction extends only to the particular property. Eitherownership of the property or just simply attach the property to assert court's jurisdiction

C. In order for a court to have personal jurisdiction over D:

1. Served in person in the state (in personam) or

2. Attach the property of the person in the state at the time of the suit (in rem) (Pennoyer v.Neff---Neffcouldnt be found in OR (no service of process), and couldn't attach the property since there was noproperty to attach at the beginning of the lawsuit (did not own it))

-Pennoyerestablished:i. the rule that the person or the property must be present to have personal jurisdiction;law not followed today

ii. State has power to require a corporation to designate an agent for service of processand notice in legal proceedings

iii. Due Process issue: whether it is fair to have personal jurisdiction in the case

D. Collateral attack doctrine: not allowed to re-litigate after losing, but allowed to attack personal jurisdiction ofthe court from another state

i. Collateral attack: claim saying that court did not have personal jurisdiction, from another state--whenyou fail to show up to court and respond to the complaint and usually default judgment issued against you

ii. However, if one appears in court and answers the complaint and defends himself, he cannot move todismiss for lack of personal jurisdiction--b/c consenting to jurisdiction by arguing on the merits--once youconsent, you waive the issue, and cannot appeal it later

1) Consent by: litigating on merits, defending oneself, or answering complaint

2) However, if you appear to attack the jurisdiction only, you are not consenting to thejurisdiction (special appearance)

iii. Only issue you can litigate is jurisdiction--if you lose on the jurisdiction issue, you lose the entire caseand cannot argue on the merits or litigate

iv. Can't relitigate twice on the same issue in the same or different court--collateral estoppel

E. Direct attack-- when you attack the personal jurisdiction of a court within that state


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-Preferred to collateral attack, since if you lose on the personal jurisdiction question, you can still attackon the merits and litigate

-If lose on direct attack, you cannot appeal until a final judgment has been rendered on the merits

F. If attacked by a foreign jurisdiction--3 options

i. Collateral attack--Not show up to the foreign court, you default on that judgment, and collateral attack

the personal jurisdiction of the foreign court in own court

ii. Special appearance by showing up in the foreign court and only argue the personal jurisdiction claim

iii. Direct attack--Show up to the foreign court and defend the case, in which you waive your right toattack personal jurisdiction

- Can only appeal once the final decision on merits has been made

G. New Rule (shift from presence to fairness): D must have minimum contacts with the forum that comportswith traditional notions of fair play and substantial justice (International Shoe)

-Overturns requirement of presence established inPennoyer; establishes need to comport with DP clause

-Seen as a balancing scale and likely two different test: some justices see jurisdiction established if thereare many substantial contacts with low substantial justice; whereas others establish if there is highsubstantial justice absent many contacts

-The more just it is for the case to be heard in the forum, the less contacts with that forum arerequired

Substantial Justice tests:

1. Ps interests

2. States interests and policy considerations

3. Witness and evidence interests (hassle)

1. Relation of the claim to the D's contacts with the statehelps determine if contacts are sufficient(Contacts do not necessarily refer to the quantitative number of jurisdiction, but more to the quality of thecontacts as well as the quantity)

i) General jurisdiction: D's contact with the state is not connected with the nature of the claim,therefore need more substantial contacts

a. If you have so many contacts, aka substantial and pervasive contacts with the state, you

are on the hook for any type of claim within the state, even if contacts are entirelydifferent from the claim made

b. To have general jurisdiction, a corporation must have systematic and continuouscontacts with the forum

-Often determined by listing the contacts and arbitrarily determining if sufficient

c. Also for corporations, either the principal place of business or state of incorporation(since they will always have systematic and continuous contacts there)


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d. For individuals, usually the place of domicile (measured by when the suit takes place;and also because will always have systematic and continuous contacts there)

-Also, general in personam jurisdiction established by a forum if personallyserved with process while in that forum

ii) Specific jurisdiction: Where the claim arises out of the nature and quality of the contact withthe forum (only need minimum contacts, often one relevant contact suffices)

-For corporations, their in-state activities for the forum in question

a. Single act contact or continuous but limited contacts

iii) The more closely related D's contacts are to the claim, the fewer the contacts are required(minimum) to comport with fair play and substantial justice (due process); The less closelyrelated D's contacts are to the claim, the more the contacts are required to comport with fair playand substantial justice

Tests to establish minimum contacts and substantial justice forspecific jurisdiction:

H. Purposeful availment test (McGee; Hanson)Did the D purposefully avail (take advantage of to benefit) the

forum and its laws? --often by voluntarily doing business and profiting there-Usually must be voluntary; if forced to do business they have not purposefully availed and no PJ

-For corporations, need to purposefully avail itself with the forum and direct business there; solicitbusiness there

I. Reasonable foreseeability test(Gray)If it is reasonably foreseeable that a product would end up in a certainforum, it is reasonably foreseeably to be haled into court there; mere awareness is not enough-- PJ is established

-If something is sold throughout the country, it may be foreseeable to be hauled in any state

J. Stream of Commerce test--If place product into stream of commerce, they are purposefully availing themselves

in the marketoften not followed

K. Purposefully direct test (WW Volkswagen): merely placing a product into stream of commerce and awarenessthat it might enter the forum is not enough to establish jurisdiction; the D must purposefully direct the product to aparticular forum

-Asahi Metal:The substantial connection between the D and the forum necessary for a finding of minimalcontacts must come about by an action of the D purposefully directed towards the forum.

-The placement of a product into the stream of commerce does not fulfill this; additional conductmust indicate an intentto serve the market in the forum. (plurality)

-Mere awareness does not indicate this intent and does not establish substantial connection withforum.

-Minority opinion: do not need minimum contacts, but look to substantial justicewhetherplacing in stream of commerce is enough to fairly expect to be haled there

L: Effects test (Calder)Where the most significant effects of the contact are locatedif most of the effects takeplace in one state, then that state likely has PJ

- Where the biggest effects are felt, via brunt of the harm, that is where you should have jurisdiction(Revell v. Lidovinternet case)


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-Often, D must have intended or had knowledge that greatest effects would be felt in that forum

M:Burger King--Contacts are minimum when the actions of D create a substantial connection with the forum inthe form of continuing obligations in the forum or deliberate and significant activities there (meets purposelyavailment requirement).

-Other factors, once minimum contacts are established, may be taken into account to determine if

substantial justice and fairness met: burden on D, Forum's interests in case, P' interest in relief and

verdict, clash of policies between the states, foreseeability to the point where a party could

reasonably expect to be haled into court there

-Foreseeability is based off the parties involved; a savvy business person could more readilyforesee something than a layperson

N: NoticeIf buyer tells seller they are going to a certain forumOutcome doesnt change unless corporationpurposefully avails themselves in that forum where claim is being made

O.Consent and choice of law provisionif there is consent, you do not need to go through minimum contactsand substantial justice test

a. Choice of law provision v. choice of forum provision

-Choice of law: provision that states that a particular states law is to apply even if claim notbrought in that state

-Choice of forum: provision detailing that suit must be brought in certain statei. When you enter into a forum selection clause in a K, this is consent to be haled intothat forum

1) Consent issue--did they consent to be haled into the forum?

2) Notice issue--did you know that forum selection clause was on back of ticket?

a) If you have notice of the clause, and you continue with the K, then this

is consent

b. Can also consent to personal jurisdiction by appointing an agent for service of process within the forum

c. A party may also waive their opportunity to object to PJ by filing any pre-answer motions or arguingon the merits

d. Special appearance statutes--can specially appear in court to challenge personal jurisdiction, andappearance does not mean consent

P. In Rem and Quasi in Rem--Property now is solely a consideration for minimum contacts test (Shafer v.Heitner)

1. SC says that must satisfy minimum contacts and substantial justice test for in rem as well as inpersonamoverthrowsPennoyerrequirements for in rem

a. No longer any free standing assertion of in rem jurisdiction, where you can attach property atbeginning of claim and give actual notice via service of process or constructive notice viapublication

2. Property itself may be sufficient to establish minimum contacts and substantial justice, but it may not,so it needs to be a part of that test

Q. Transient/Tag Jurisdictionas opposed to specific or general jurisdiction


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-An exception to minimum contacts; established if a D is served with process in person while presentwithin the forum, then that forum has personal jurisdiction (Burnham v. Superior Court of CA)

-More emphasis put on fairness aspect over minimum contactswhether it is fair to be subject tojurisdiction in the forumex: on a plane, induced by fraud, kidnappedno tag jurisdiction since not fair

-fairness has no certainty, so decide on case by case basis

-Burnham reduces the number of jurisdiction cases that would fall underinternational shoe--only need to

serve person while they are in the forum to get jurisdiction; do not need to establish minimum contactsand substantial justice test

R. Jurisdiction over corporations

1. Corp can be sued in any state with purposeful contacts, not just state of incorporation

i. State of incorporation plays the role of property for minimum contacts test

2. All states require out of state corps to appoint in state agent for service of processwhich most hold issufficient to establish personal jurisdiction

i. Based on consent argument--by appointing an agent, the corporation consents to jurisdiction

ii. No jurisdiction for in state service for a transient corporate agent, unlike transient individuals

3. In partnerships, personal jurisdiction over one of the partners establishes jurisdiction over thepartnership

S. Personal Jurisdiction and the Internetinteractivity not sufficient enough to establish personal jurisdiction

1. General jurisdictionfor passive websites, apply substantial and continuous contacts test with theforum

2. Specific jurisdictionfor interactive websites, apply the effects test--Where the biggest effects are feltvia brunt of the harm, that is where you should have jurisdiction (Revell v. Lidovinternet case)

-Often, D must have intended or had knowledge that greatest effects would be felt in that forum

-Forum must be the focal point of the article and the harm suffered, and directed towards theforum's readers

T. States Long Arm Statutesstatutory limits on PJ

1. Long arm statutes: specify the personal jurisdiction of a state: 2 types1) will allow PJ to state in allcases in which Constitution permits (min contacts/substantial justice) or 2) specifies higher standards thanthe Constitution (start with long arm statute, then move to constitutional min contacts/sub justice test ifmeet long arm statuteusually if meet state statute, you meet the constitutional test)but still do both

test analyses-statute then constitutional

1) Must fall within the terms of the state statute (modifies cases that may be constitutional, but donot fulfill higher standard of state statute)

2) Then, must fall within the terms of the constitutionminimum contacts and sub justice

- Cases which are constitutionally permissible, that a state may choose not to accept byenacting a more stringent standard than the constitution

3) Does the long arm statute confer jurisdiction? Does the long arm statute comport with DueProcess under 14th Amendment?

4) Rule 4eFederal courts within the state apply the state long arm statute


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II. PROCEDURAL DUE PROCESSneed 1) notice and 2) opportunity to be heard

Notice and Opportunity to be Heardseparate standard from jurisdiction or consent to establish PJneed both

1.Notice is a separate requirement needed in addition to either jurisdiction or consent to have personal juris.

a) Jurisdiction and notice--if have jurisdiction, still need adequate notice, and if not then court has nojurisdiction (Pennoyer)

b) Consent and notice-- whether one consents to jurisdiction or not, still need notice of the suit to havejurisdiction (Shute)

-Ex: Pennoyer--no facts that he received notice or that anyone representing him had notice

2. Notice has to be reasonably calculated (reasonable efforts) to notify D of a suit affecting his/her rights(Mullane v. Central Hanover Bank)

a. Constructive notice (ex: publication) is only sufficient for Ds whose whereabouts and addresses areunknownthis is fair since no other reasonable way to notify them

i. Unknown Ds interests are still protected even without being notified personally, if you notify

the group that D belongs to (this is constitutional). It is assumed that by notifying the members ofthe group who are present, they will represent the interests of those who are not presentdo notneed to notify every member if it is sufficient to notify most members who are present

ii. Cant lose notice interest as long as someone else is protecting that interest for you

b. Constructive notice not sufficient to those whose addresses are known, since there are better ways ofnotifying, such as by mailmiddle ground in that publication is not sufficient, but do not need topersonally notify

i. Notice by mail is not required; there may be other ways of notice that are reasonably calculated(but mail still most common and accepted)

c. Under Federal Rules of Civil Procedure, service of process is permitted upon an individual bydelivering personally or leaving copies of a summons and complaint at the individuals dwelling house orusual place of abode, and having some person of suitable age and discretion residing therein to receive it(Natl Dev. Co. v. Triad Holding Corp.)

i. A person can have more than one dwelling or abode.

ii. Where a party has several residencies which he permanently maintains, occupying one at oneperiod of the year and another at another period, service is valid when made at the dwelling housein which the party is then living at the time

3. Statutory rule--Rule 4, set up to comport with constitutional requirements--if comply with Rule 4, then you

comply with constitutional notice

i. Rule 4

1) Waiver of service to get around mail service2) Rule 4 a

a) Specifies what needs to be in summons (basic information to get D to appear in court),judge does not need to be involvedb) Complaint--sets out claim and damagesc) Service

i) Summons must be served with complaint, 4 e


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-Must serve D within 120 days after complaint filed; otherwise court candismiss (without prejudice--means can bring claim again after thedismissal; with prejudice--cannot being claim after dismissal)-Must be 18 to serve summons and complaint on behalf of someone else

d) Waiving service of summonsi) Requesting a waiver by P to D--to avoid expenses, you request D waive formalservice of a summons by signing the waiver, establishing your noticeii) Incentive to waive service of summons--you agree you do not need formalsummons on you, and therefore D does not have to pay for the service of process

iii) Also, incentive given of longer time to answer complaint if waive service ofsummons

e) Serving an individual within a judicial district of the USi) Use same process to serve someone for fed district court as you would for statecourt

h) Serving a corporation or partnership

4. Opportunity to be heard

a. D must receive sufficient advance warning to allow time to prepare an adequate defense

-Some kind of hearing, not necessarily a trial

III. SUBJECT MATTER JURISDICTION

-Determines which court can hear certain kinds of claims and where to bring claimstate or federal

1. Federal court subject matter jurisdiction

a. Limited subject matter jurisdictionlimited to Art 3 sec 2

1) Diversity Jurisdiction--1332--citizens of different states, citizens of a state and citizens of a foreignstate75000 requirement

2) Federal question jurisdiction1331---claims arising under the constitution or federal laws

ii. Diversity setting--allows for state law claims to be heard in federal court

3) Sec 1331 and 1332p. 339--codifies US Constitution for civil procedure

a) District courts shall have original jurisdiction of all civil actions arising under the constitution,fed. laws, or treaties of the US

b) District courts shall have original jurisdiction of all civil actions where the matter exceeds thesum of $75000 exclusive interests and costs and citizens of different states, citizens of a state andforeign state

b. Original jurisdiction--where the case starts and is decided

1) Trial courts; Lies within federal district courts, not to US SC

2) Only for diversity and federal question cases

c. Appellate jurisdiction

1) Usually federal circuit courts and SC

2) Always have right to appeal case from trial court and appeal to circuit court

2. State Court subject matter jurisdiction


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a. General Jurisdictioncan hear any type of case, including most federal claims

b. Concurrent jurisdictioncase satisfies both federal and state court requirements; P chooses where to file

-Exceptions reserved to the federal courts:maritime, admiralty, bankruptcy, antitrust, patents, copyrights

3. Ps Burden to establish federal subject matter jurisdiction

a.Unlike personal jurisdiction, there is a presumption against federal subject matter jurisdiction; thus P mustproperly plead that it exists and if D challenges the statement, P has burden of proving the SMJ

b. If case dismissed for lack of SMJ, P then has to start claim over in state court, as long as statute of limitationshasnt run

4. Diversity of Citizenship and Alienage Jurisdiction-1332

-Occurs whenever there is a state claim in a federal court--Federal court must apply the same law that the state inwhich it sits would have applied

-Diversity measured when the claim is filed, not when the judgment is made

a. Complete Diversity Rule: Ps cannot be from the same state as any D (Strawbridge v. Curtiss)

-Constitution only requires minimal diversityat least one party must be diverse

-P cannot later join a D from the same state as him, if he already had diversity with the original D

b. Citizenship qualificationsDiversity when claim is filed, not when judgment is made

i. For diversity purposes, citizenship means domicile, residence is not enough.

ii. Domicile= 2 factors

a) Physically present at the permanent establishment

b) Intent to remain and return there if gone

iii. A change of domicile occurs only when 1) take up residence in a different domicile and 2) withintention to remain there.

iv. A person can have only one domicile at a time, and thus can be a citizen of only one state at a time

- Ascribed the domicile of parents at birth, until you change it

v. A permanent resident alien is not diverse from a citizen of the same state nor from another alien in thesame state

c. Amount in controversy must be at least $75,000

i. Only for diversity cases, the amount in controversy is not the amount awarded, but the amount claimedby P in good faith.

ii. Aggregation of claim--P can add up the different claims he has against D to make up over 75000 evenwhen they are not legally related claims, but cannot aggregate parties

- But cannot aggregate the claims of more than one plaintiff against one defendant or more thanone defendant to make up the 75000 requirement

d. Determining citizenship of entities

1. Corporations


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i Corporations are citizens of both the state of incorporation and the state of principal place ofbusiness (Randazzo v. Eagle Picher Industries)

- *P must allege both to invoke subject matter jurisdiction

ii. What does principle place of business mean?

a) the place where the corporation's high level officers direct, control, and coordinate thecorporation's activities--"nerve center" or headquarters (Hertz v. Friend)

2. Non Incorporated Businesses

i. LLC or unincorporated business or partnerships are citizens of all the partners and all members(Belleville Co.v. Champaign LLC)

e. Representative suits and assignment of claims

-If a person wants a case to be heard in federal court over state, they can assign someone else from adifferent state to bring the claim on behalf of them in order to satisfy the diversity requirement

- However, under sec. 1359, a district court has no jurisdiction over cases in which any party, byassignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction ofsuch court

For ex: if the assignee gives the assignor back 95% of the profits won, then there is nojurisdiction

- This rule does not apply to a P who changes her domicile to create diversity

f. Domestic Relations and Probate Exceptionsnarrow exceptions

1. Even if requirements for diversity of citizenship are met, the federal courts refuse to hear domesticrelations cases--only divorce, alimony, child custody cases--always to state courts

2. Federal courts also will not probate or administer a decedent's estate or appoint an executor--interfereswith state probate courts

4. Federal Question Jurisdiction-1331

- Claims arising under the constitution, federal laws, or treaties1331 and Constitution

-No amount in controversy requirement for federal question claims

-In most cases, you can bring federal question in either federal or state court--except for patent, admiralty,bankruptcy, maritimebut leaves open possibility of D removing it to federal court

a. Well Pleaded Complaint Rule

1. To have federal question jurisdiction, the complaintmust pose a federal question and not a state law

claim (Louisville and Nashville Ry. v. Mottley)

2. No well pleaded complaint, and therefore no federal jurisdiction, if the P does not raise a federalquestion in the cause of action; not a federal question if raise federal question in anticipation of a defenseby D and not in the complaint, and even if D answers complaint with a federal issue

3. Subject matter jurisdiction cannot be waived and the court must raise it sua sponte if they discover adefectif dismissed, then P can file in state court

b. Well Pleaded Complaint Problems raised by declaratory judgment

1. Non coercive remedy; request court to declare rights of the parties


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2. Declaratory judgment must be supported by an independent basis for jurisdiction, such as diversity oranother federal question; the declaratory judgment itself does not invoke federal jurisdiction

c. Centrality of the Federal Claim

1.The federal issue must be part of well pleaded complaint and must also be sufficiently central to thedispute to justify federal court jurisdiction

2. State law claim embedded with federal questions--Smith exception

i. Traditionally, if state cause of action, doesnt meet well pleaded complaint rule and cannot havejurisdiction (American Well Works)

ii. Later, in Smith, if have state law claim, but central focus concerns federal law, then the federalcourts may have federal question jurisdiction

iii. 2 Prong Test to determine if court will have federal question jurisdiction (Grable v. Darue)

1) Federal issue must implicate substantial questions of federal law and

2) Federal interests generally must be more important than the state court's right to hearcase solely because of state cause of action--cannot upset the balance between federal andstate jurisdiction --such as if it opens floodgates to state courts to state claims imbeddedwith federal issues

- Balance is not upset b/w state and federal courts if holding jurisdiction wouldnot open up the state courts to a flood of state law cases embedded with federalissues

-Determined by how likely the type of claim is arise repeatedly in state courtifit is not a claim that would be frequently filed, then it does not upset the balance

d. Removal Jurisdictiongoverned by 1441, 1446, 1447

1. 1441 a)

-Can only remove a case if it could have originally been filed in federal court--diversity or federalquestion

-Whenever you have removal, case must start in state court, and D must remove it to district courtthat the state court where the action was filed

2. 1441 b.

-Federal question--if remove on basis of federal jurisdiction, then do not have to worry aboutdiversity

- Diversity--only removable if none of the D's is a citizen of the state in which such action isbroughtINSTATE DEFENDANT RULE

Diversity is to protect out of state citizens against biases of local courts, but do not needto worry about that if already a D within the state

Instate Defendant Rule: if any D is a citizen from the state where seek to remove fromstate to federal, then cannot remove--since should not be worried about bias

3. Procedure 1446 a)-- Because the D is invoking federal subject matter jurisdiction, the D has theburden to demonstrate that the P's claim invokes that jurisdiction

- To remove, do not have to tell state court anything, only need to file with federal district court--have 30 days to do so


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- Need to allege federal question or diversity matter

i. If allege federal question--only need to show federal question P's complaint based on

ii. If allege diversity--need to show diverse citizenship and show that D is not a citizen ofthe state where filed

4. 1447 c

- If P wants it back in state court, he must file motion to remand and must be made within 30 daysafter the removal notice was filed by D

- If at any time before final judgment, it appears that federal district court lacks SMJ, the caseshall be remanded to state court

5. If original complaint was removable 30 days from commencement of actions, an addition of a new Ddoes not start the time for removal anew (Noble v. Bradford)

i. The failure of initial D to remove during the original 30 days is a waiver of the right of removalwhich is binding on added D's

ii. However, second filed rule says that a second defendant should have the chance to cajole thefirst D into removing the caseunfair to have the first Ds inaction bar the later joint D

ii. All Ds must agree to remove

iii. Courts stated that diversity of citizenship must exist both when the D removes the case andwhen the P files it in state court

iv. A P cannot defeat removal by joining a nondiverse D against whom he has no bona fide claim

IV. VENUE

1. Statutory creation for convenience and to assure that P will have a fair trial somewhere1391 and 1392

- Venue can be waived

2. State Venue Provisions

a. Where within the state--which county or city--cases are to be adjudicated

i. Civil actions--brought in county where D resides, carries regular business, or is employed; ForCorporations, where its principal offices are in the state

ii. Multiple defendants--if there is no applicable venue to all, all may be sued in a county in which anyone of them could be sued or county where the cause of action arose

3. Federal diversity suits may be brought: 1391 A(hierarchy, go through 1first then, 2 , 3)

1. In a district where D resides, if all Ds reside in the same state OR

2. In a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated OR

3. A judicial district in which any D is subject to personal jurisdiction at the time the action is commenced, ifthere is no district in which the action may otherwise be brought

4. Federal question suits may be brought in: 1391 B

a. A judicial district where any D resides, if all D's reside in the same state


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b. Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or asubstantial party of property that is the subject of the action is situated

ex:Bates v. C and S Adjustersfederal question invoked; Court said there was venue in NY over PNbecause substantial events that gave rise to the claim, the delivering of the notice, occurred in NY

c. Judicial district in which any D may be found, if there is no district in which the action may otherwise bebrought

- Easier test than diversity 1391 Abut still similar because of transient jurisdiction underBurnham, stillsimilar to personal jurisdiction

5. Need to prove personal jurisdiction, subject matter jurisdiction, and venue--need all three to be sued in a federal district

6. Transfer

A. 1404 Transfer of federal district courtsD may get a change of venue

1. May be done for 1) convenience of the parties, 2) Convenience of the witnesses or 3) in the interest ofjustice, so long as the suit could have been originally brought in the new forum (if it has subject matterand personal jurisdiction)

-Must be made by motion, consent, or by stipulation of all the parties involved

2. States can only transfer to other courts within same states

3. Federal courts can transfer to any district in country, across state lines--more expansive than statecourts, because states are to maintain their own sovereignty

B. 1406Improper Venue: If a district court where the case is filed is in the wrong division/wrong venue, thecourt shall dismiss or transfer the case to any district where it could have been brought

-Completely courts discretion to dismiss or transfer to a venue where it is proper

a. Goldlawr transfers

1) 1406 a--transfer of cases filed in an improper venue

2) If case is filed in a district where venue is improper and which lacks personal jurisdiction, thencase can be transferred since it conforms with the statute of "removing whatever obstacles mayimpede an expeditious and orderly adjudication of cases and controversies on their merits"

-Policy--promotes justice to where interests are

C. 1631Case must be transferred if the court does not have personal jurisdiction to a court that has personaljurisdictionin the interest of justice

D.Most states allow D to seek transfer if feel would not get fair trial where the case is filed

G. Forum selection clauses

1) In contracts, forum selection clause specifies where litigation concerning the contract is to occur withinthe statespecifies exactly in which district a case is to be heardallowed as long as prove personal andsubject matter jurisdiction

2) Federal courts not required to honor, but weigh them significantly

H. Choice of law

1) Each state has its own choice of law doctrine or rules to decide which state's law to apply2) When litigation occurs in state court, the forum applies its choice of law rules


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3) When litigation occurs in federal court:a) Where there is no federal statute on point, a federal court ordinarily applies state lawb) Federal court should apply the choice of law rules of the state in which it sits

4) When a federal case is transferred: under 1404 a onlya) Transfer is simply a change of courtroom and should not change the law that is applied--solikely the transferorb) Transferee court should apply whatever law the transferor court would have applied

I. Forum Non Convenies Dismissalsonly applied to federal courts

1. Case thrown out of US judicial system by US federal courts because of a more appropriate forum in aforeign court

2. Private and Public Factors Tests to determine to grant Forum Non Conveniens

a. Private factors: ease of access of proof, ease of witnesses, view of premises, inexpensive

b. Public factors: flow of court congestion, local interest of having local controversies at home,having diversity case in a forum that is at home with the law that must govern the action,complication of courts applying foreign law

3. Only apply public and private factors test; dismissal may not be barred solely because of the possibility

of an unfavorable change in law to P (Piper Aircraft v. Reyno--private and public interest factors point toScotland)

4. Can personal jurisdiction be sufficient to do what forum non conveniens does? Yes, since the publicand private factors are very similar to the substantial justice factors and

V. PLEADINGS

- Pleadings--documents filed by litigants, setting forth their claims and defenses and factual contentions

--Today, notice pleading--less emphasis on making sure initial complaint is factual, because only point of complaint is to

put other side on notice of a claim against them and give them reasonable time to respond, and discovery will take care offacts

-but also makes litigation more expensive with discovery

-Some states also have code pleading--more specific with facts; allows for gatekeeping from frivolous claims

-Amount of detail in complaint depends on the complexity of the law being claimed

-After you establish personal jurisdiction, subject matter jurisdiction, and venue; then you can file a complaint

- Serving the Complaint- Rule 4 and 12--P must give notice to D through service of process, which contains summonsand a copy of P's pleading

a. D can then respond in an answer, where he responds to the allegations in the complaint and may raise newmatter called affirmative defenses--P may then respond in his replyb. Rule 4(a)= what the summons must havec. Rule 4 (d)= waiver of service, where you can mail the complaint along with form 5 and 2 copies of form 6

-All P has to do is take the form 5, attach the complaint and 2 copies of form 6 and mail it-Once you get the form 6 waiver back you take it and file it with the court clerk

d. If D decides not to waive service, they get 21 days to answer the complaint. But if they do waive it, they get 60days. And D must pay for refusing to waive service.

-The 60 days starts on the day P mails back the waiver of service, not the day it is filed, and the 21 daysstarts from the day D actually gets served if they decide not to waive service. If D doesnt do so in timeallotted, then sanctions.


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e. P must serve a reply to an answer within 21 days of being served with an order to reply

1. ComplaintsRule 8

A. Rule 8 a) 1-3

1) A pleading must contain:

a) A short and plain statement of the grounds for the court's jurisdiction--personal, subject matter,and venue; unless the court already has jurisdiction

b) A short and plain statement of the claim showing that the pleader is entitled to relief

i) Ex: duty breach cause harm

-Sufficient facts to show a plausible claim

c) A demand for the relief sought, which may include relief in the alternative or different types ofrelief

i) Break down relief sought by each claim of damages, and amount for each

2. Federal Rules Pleading

A. There is no pleading requirement of stating facts sufficient to constitute a cause of action, but only that there bea short and plain statement of the claim showing that the pleader is entitled to relief (Dioguardi v. Durning-1944)

-Otherwise, meritorious claims may be thrown out because of procedural blunders

B. Pleadings taken in light most favorable to P

C. Pleading Today: Notice pleading but more like de facto code pleadingas response to 12 B 6 motion

a. The pleading must contain something more than a statement of facts that merely creates a suspicion ofa legally cognizable right of action; not enough to allege entitled to relief, must show entitled to relief

with facts (Bell Atlantic v. Twombly)

b. Merepossibility of success is not enough in complaint, it needs to be plausible; yet does not need tobe to the level of heightened pleading or probability of winning=standard applicable to every type of civilaction:

Ex:Ashcroft v. IqbolConstitutional/civil rights infringement case; P fails to state plausibleclaim based on facts because relies on legal conclusionsonly conceivable, but not plausible

-2 Principles to base decision on if plausible:

1) First tenet that a court must accept as true all of the allegations contained in acompliant, is inapplicable to legal conclusions

2) Only a complaint that states aplausible claim for relief based on the factssurvives a motion to dismiss

What is plausible? Context specific to the case based on judicial experience andcommon sense=Vague standard that can be interpreted by judges in different ways

c. Asking for plausible grounds to infer an agreement does not impose a probability requirement at thepleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will revealevidence of illegal agreement.


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d. Therefore, today an attorney needs to make complaint as plausible as possible, by way of adding morefacts to the complaint, instead of waiting for this during discovery = More like code pleading

D. Heightened Specificity Requirements --Rule 9only applies to fraud or mistake

a. Rule 9b--In alleging fraud or mistake, a party must state with particularity the circumstancesconstituting fraud or mistake.

b. The heightened pleading standard contradicts the notice pleading standards set by federal rules 8 a 2),

which only requires a short and plain statement of the claim showing that P is entitled to relief.(Leatherman v. Tarrant County)

c. 9 b) only addresses two instances where heightened factual specificity is required--claims of fraud andmistake--and do not include civil rights complaints alleging municipality liability (Leatherman)

-Policy implicationsbecause of stigma from the information sought, require more code pleadingto protect the client

E. Pleading Inconsistent Facts and Pleading in the Alternative

a. Rule 8 d 2 and 8d3

-8d2: A party may set out two or more statements of a claim or defense alternatively orhypothetically, either in a single count or defense or in separate ones. If a party makes alternativestatements, the pleading is sufficient if any one of them is sufficient

-8d3: A party may state as many separate claims or defenses as it has, regardless of consistency

-Though not stated in rule, plead alternative theories when you are in doubt as to whichfacts or theories are true

b. P to plead inconsistent counts in the alternative, where he isgenuinely in doubtas to what the facts areand what the evidence will show. Not grounds for dismissal that one count contradicts those in analternative count, since each presents a separate question. (McCormick v. Kopmann)

F. Jurisdictional Challenges

a. D. Collateral attack doctrine: not allowed to re-litigate after losing, but allowed to attack personaljurisdiction of the court from another state

i. Collateral attack: claim saying that court did not have personal jurisdiction, from another state--when you fail to show up to court and respond to the complaint and usually default judgmentissued against you

ii. However, if one appears in court and answers the complaint and defends himself, he cannotmove to dismiss for lack of personal jurisdiction--b/c consenting to jurisdiction by arguing on themerits--once you consent, you waive the issue, and cannot appeal it later

1) Consent by: litigating on merits, defending oneself, or answering complaint

2) However, if you appear to attack the jurisdiction only, you are not consenting to thejurisdiction (special appearance)

iii. Only issue you can litigate is jurisdiction--if you lose on the jurisdiction issue, you lose theentire case and cannot argue on the merits or litigate

iv. Can't relitigate twice on the same issue in the same or different court--collateral estoppel

b. Direct attack-- when you attack the personal jurisdiction of a court within that state


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-Preferred to collateral attack, since if you lose on the personal jurisdiction question, you can stillattack on the merits and litigate

-If lose on direct attack, you cannot appeal until a final judgment has been rendered on the merits

c. If attacked by a foreign jurisdiction--3 options

i. Collateral attack--Not show up to the foreign court, you default on that judgment, and collateralattack the personal jurisdiction of the foreign court in own court

ii. Special appearance by showing up in the foreign court and only argue the personal jurisdictionclaim

iii. Direct attack--Show up to the foreign court and defend the case, in which you waive yourright to attack personal jurisdiction

- Can only appeal once the final decision on merits has been made

Ex:Baldwin v. IA State Mens Assoc.-- P attempted to challenge personal jurisdiction in direct attack bymaking special appearance, and lost; P then attempted to challenge personal jurisdiction in collateralattack

-SC said you cannot challenge personal jurisdiction in collateral attack after losing in directattack-- only get one chance to attack personal jurisdiction

- Therefore, more likely to challenge on direct attack--since you can litigate and attack the meritsafter if you lose on direct attack; whereas in collateral attack you can only challenge personaljurisdiction, and if you lose then subject to default judgment and cannot attack on the merits

3. Defenses and ObjectionsResponsive Pleadings (answers and motions)

-D can either answer within 21/60 days of being served process, or file pre-answer motions under rule 12 b or donothing

A. Defendant's options in response to a complaint

a. Not here--subject matter jurisdiction/personal jurisdiction/venue challenges

b. So what?12 b) 6P failed to state a claim on which relief can be granted

c. Vague complaints--12 e)--ask for a more definite statement

d. Denial--say claim is not true

e. Affirmative defense--claim true, but have a defense for doing it

f. Third party claim/cross claim--Not my fault, but B's fault

g. Counterclaim--counter a claim against P

- First 3 do not require the D to take a position as to the truth of the facts pleaded by P--so madeby motion, and not an answer

- Answer--requires D to take a stance towards the complaint 4-7

B. Rule 12 B-motions

-Every defense to a claim for relief in any pleading must be asserted in the answer, or a party may assertthe following defense by motion

-Motions--requests that the court order something


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12 Bi. every defense to a claim for relief in any pleading must be asserted in the responsive pleading (answer).But a party may assert the following defenses7 motions

1) Lack of SMJ2) Lack of personal jurisdiction3) Improper venue4) Insufficient process5) Insufficient service of process6) Failure to state a claim upon which relief can be granted--even if every fact in complaint is in

favor of P, they still have no claim if there is no relief based on how P plead the caseif leaveout essential information7) Failure to join a party under rule 19

ii. Motion asserting the defenses must be made before pleading an answer

iii. No defense or objection is waived by joining it with one or more other defenses or objections in aresponsive pleading (answer) or in a motion--like a special appearance

- Ex: file motion for lack of personal jurisdiction and improper venue

12 G--joining motions

1) A motion may be joined with any other motion under this rule

2) Except as provided in rule 12 h 2, or 3, a party that makes a motion under this rule must not makeanother motion under this rule raising a defense or objection that was available to the party but omittedfrom its earlier motion

12 H--

1) a party waives any defense in rule 12 b 2-5 by omitting it from a motion in the circumstances underrule 12 g 2 or failing to either:--

a) Make it by motion under this rule or

b) Include it in a responsive pleading or in an amendment

*motions 2-5 must be all be plead together right away in a pre-answer motion or as an affirmative

defense in your answer to preserve them from being waived

2) 12b6 failure to state a claim upon which relief can be granted, to join a person required by Rule 19b, orto state a legal defense to a claim may be raised:

a) In a pleading

b) By a motion

c) At trial

3) Court must dismiss if determines it lacks SMJ--but can never be waived by the parties

- Motions for summary judgment--if facts are undisputed and D is entitled to a judgment as a matter of law

- Motions to seek more definite statements or to strike under rule 12 e and f--for insufficient defense or redundantimmaterial, impertinent, or scandalous matter or claim for relief not available

- Courts have power to decide on a motion at any time during the process

C. The Answer: Rule 8 b, c, and d

a. D can do 2 things: must admit or deny specific allegations


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1) Respond to the allegations of the complaint--8 b and

2) Raise new matter through an affirmative defense--8 c

b. Responses to the P's allegations8 B

i. Rule 8b and 8d (allegations not denied are deemed admitted)

1. Admissions--8 b1

1) Often for undisputed factsanything admitted is deemed as fact for trial, and anything notdenied may at times be concluded as admitted

2. Denials--8 b2

1) General denial--where D denies each and every allegation of the complaint--only acceptable ifD can in good faith deny all allegations of the complaint

2) Specific denials--to specific allegations; often accompanied with admissions to the othercomplaints

- Often go paragraph by paragraph to see if you admit or deny the allegation in thatparagraph

3) Qualified general denial--admits to allegation in one paragraph, and deny the rest of theallegations

4) D who wants to deny should simply do so without getting fancy or demanding

5) Rule 8b2--requires that a denial must fairly respond to the substance of the allegation; thus Dshould resist temptation to plead contrary facts

3. Denials for lack of knowledge or information8 B 5

1) Rule 8b5--a party that lacks knowledge or information sufficient to form a belief about thetruth of an allegation must so state, and this has the effect of a denial

- But not a defense if the D has reasonable access or is public record

c. Affirmative defenses--8 c

i. 8 c) 1 requires D to raise affirmative defenses--19 defenses

-If include motion in affirmative defense, it must have been made in pretrial motion or

answer firstor else lose them

ii. Avoidance--admit to P's allegations, but raise new matter that would avoid liability to the allegation

iii. Affirmative defenses are different from denials because they inject new matter into the dispute--saying

might have done what is alleged, but have a defense as to why

1) Each party has burden of producing evidence at trial on the elements she must plead

2) D must plead their affirmative defenses in their answer

d. CounterclaimD brings a claim of fault against P

e. Cross claim2 Ds, but say second D is at fault

f. Default judgmentwhere D does nothing and a default judgment gets entered, D can then challengejurisdiction collaterally


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4. Dismissals

A. Voluntary Dismissal41a)

1) P may dismiss an action without a court order by filing:

a) A notice of dismissal before the opposing party serves either an answer or a motion forsummary judgment OR

b) A stipulation of dismissal signed by all parties who have appeared

- Unless the notice or stipulation states otherwise, the dismissal is without prejudice--Pcan re-file same claim again

- Ex: can file first through notice of dismissal, then if dismissed without prejudice, by astipulation

-A dismissal of a complaint by P "without prejudice" means that the P can reinstate thecase

- A dismissal ''with prejudice'' or "on the merits" bars the P from bringing the claimsagain

2) Otherwise, an action may be dismissed by P's request only by court order

B. Involuntary dismissal41 b)

1. Failure to prosecute by P, or if P fails to comply with these rules, or if P fails to court order, D may filea motion for court to dismiss the complaint and it will always be with prejudice and cannot be re-adjudicated

5. Amended PleadingsRule 15very liberal rules allowing parties to amend pleadings

A. 15 a) = Leave to amend shall be freely given when justice requires

i. A party may amend its pleading once

1) 21 days after serving other side with the pleading (be it a complaint or an answer for D) or

2) 21 days after service of a responsive pleading/answer or motion by D under rule 12

ii. Cannot amend without consent of either other party or the court--Can either wait for consent from D, orask the court to allow to amend complaint--court should do so when justice so requires

iii. Time to respond--D has at least 14 days to respond to amended complaint in answer

B) Amendments during and after trial15b)

i. 15 b--amendment to complaint--when there is evidence on a point not covered in pleading=variance

1) Court wants relevant information to case, even if not specifically in the complaint or answer--liberal basis

2) Court should freely permit an amendment when doing so will aid in presenting the merits andopposing party does not prove that the amendment would prejudice their defense on the merits

C) Relation back to amendments15 c)

i. An amendment to a pleading relates back to the date of the original pleading when:

1) The law that provides the statute of limitations allows relation back


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2) Amendment asserts a claim or defense that arose out of the conduct, occurrence, or transactionset out or attempted to be set out in the original pleading or

3) The amendment changes the party or the naming of the party against whom a claim is assertedwhich falls within the period of rule 4m--1 year after time action arose

ii. Statute of repose--D should be free of mind from being a party to a suit after a period of time

iii. *As long as original claim and amended claim are related, then amendment does not infringe on D

since they should have had notice of the amended claim, and amendment may be allowed even if statuteof limitations runs

6. Supplemental Pleadings15 d)

1) Supplemental pleading sets forth events occurring after a pleading is filed to be attached to the pleading--maychange the relief sought or add new parties (cant amend complaint since the events occurred after the originalpleading)

- Does not include facts that occurred before the original filing, but were discovered after--would needamendment

2) Allowed only with court permission--freely granted unless there is undue delay, bad faith, or prejudice

- Allows P to allege new facts without having to amend original complaint, but also allow D an answer tosupplemental complaint

7. Rule 11--signing pleadings, motions, and other papers, representations to the court,sanctions

A) Attorney must verify specifics, andsign to assure that assertions reasonably grounded on fact and law, andcourt may impose sanctions if do not comply

-Every pleading or motion or other paper must be signed by at least one attorney of record; court muststrike the paper without the signature unless omission is promptly corrected

- By signing, representing to court:

1. A proper purpose for claim

2. Claim warranted by existing law and not frivolous

3. Factual contentions have evidentiary support

4. Denials are warranted by evidence

B) Sanctions: if attorney fails to sign and properly represent claim to court

1. Sanctions may be imposed, and law firm must be held jointly responsible

2. Safe harbor provision--motion for sanctions must not be filed to court until 21 days have passed after

serving the motion to the opposing party--to allow them time to appropriately correct the violation

Ex:Rector v. Approved Federal Savings Bankfrivolous $20 billion claim, D files rule 11sanctions, but the sanctions never were served on P, but sent straight to court within 21 days

-Safe harbor is not a jurisdictional issue, so can be waived

-P waived this argument since he did not bring it as a defense on first appeal

3. Inherent power of court to sanction bad faith conduct by litigants or counsel

8. Model rules of professional conduct--emphasizes what is in rule 11


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VI. DISCOVERY

-Discovery does not start until pleadings stage ends--when issues are joined--pleadings and responsive pleadings bothmade

-*1) Is the information relevant? 2) Is the information privileged? 3) Has the privilege been waived?

1. Policy: Purposes of discovery rules:

i. Permit the preservation of evidence that might otherwise be lost before trial

ii. They provide mechanisms for narrowing the issues in dispute between the parties, and

iii. They permit the parties to acquire greater information about their own and the other side's case

2. Rule 26 b) 1 and 2

i. Discovery scope and limits--3 categories

1) Relevancy to party's claim/defense: Scope is as follows: Parties may obtain discovery regarding anynonprivileged matter that is relevant to any party's claim or defense

a) Relevant information need not be admissible at the trial if the discovery appears reasonably

calculated to lead to the discovery of admissible evidenceAsk: is this evidence that P willuse to support a claim? Is it evidence that D will use to support a defense? OR

2) Relevancy to subject matter: 2 categories

a) Forgood cause, the court may orderdiscovery of any matterrelevant to the subject matterinvolved in the actiontherefore, must get court order and up to the whims of the court

b) For electronically stored information: must be reasonably accessible, and not unduly

burdensome and costly to get, and must have good cause

3) Court must limit extent of discovery if:

i) Discovery is unreasonably cumulative or duplicative or can be obtained from other sources, or

ii) Party seeking discovery has had ample opportunity to obtain the information by discovery inthe action, or

iii) Burden or expense of the proposed discovery outweighs its likely benefit

3. Stages of Discovery

A. Rule 26 f conferencemeeting between the parties in order to set up a discovery plan and calendar and anysettlement prospects. Must be held as soon as possible and at least 21 days before the rule 16 b conference withthe judge

B. Initial disclosures--26 a 14 categories

1) Disclosures that automatically must be made by both parties without a discovery request: name,number, address of any individual witness with likely discoverable information

2) A copy, or description of all documents, electronically stored information, and tangible things thatdisclosing party has in its possession and may use to support its claims

3) Computations of damages

4) Insurance coverage that must be disclosed


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i. Time for initial disclosures: within 14 days after the parties rule 26 f) discovery conference b/w theparties--conference to determine what the discovery plan is to be--how long it will last, how manydepositions and interrogatories will be allowed, etc.

ii. Unacceptable excuses--generally, no excuses for not filing disclosures within 14 days if information isreasonably available

-Exception: If the party is served or joined after the Rule 26 f conference, they must make theinitial disclosures within 30 days after being served or joined

C. Rule 16 b conference with the judgescheduling conference allows the judge to manage the trial docket byestablishing a plan by which the parties will follow in conducting discovery. Violators may be liable for sanctionsHelps to facilitate settlement.

-Done as soon as practicable or at the latest 120 days of a party being served or within 90 days of theparty making an appearance

D. Expert disclosures26 a 2must disclose of experts who plan to testify as if they were witnesses but mustalso include a written report by expert and signed by expert of what the expert plans to testify about with specificsunder 26a2breport must be made before any deposition given

a. P only needs to disclose information of testifying experts. Non testifying experts are treated as work

privilege26b4b

b. Experts must be disclosed 90 days before trial

c. Rule 26 b 4 B--ordinarily a party may not, by interrogatories or deposition, discover facts known oropinions held by an expert who has been "retained or specially employed" by another party inanticipation of litigation or to prepare for trial who is not expected to be called as a witness.

-Exception: exceptional circumstances under which it is impracticable for the party to obtain factsor opinions on the same subject by other means.

d. Types of experts

1) Testifying expertsdiscoverable

2) Experts retained or specially employed in anticipation of litigation but not expected to be awitness

i) Except under rule 35 for an examining physician, the facts and opinions of experts inthis category cannot be discovered except for exceptional circumstances.

3) Experts informally consultedin preparation for trial, but not retained or specially employed orto be a witness.

i) No discovery allowed of the names or views of these experts

ii) Why? Policy: On one hand, want people to freely consult experts and see the claimthey have. But at same time, this allows parties to be able to shop for experts for afavorable opinion. Agenda over objective accuracy.

4) Experts whose information was not acquired in preparation for trial--Ex: bystanders, treatingphysicians

i) Freely discoverable as with any other ordinary witness

5) The status of each expert must be determined on an ad hoc basis

E. Pretrial disclosures26a3


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-An updated version of the previous disclosures. Disclosures of witnesses expected to be called or whosedepositions will be used and a list of documents to be used as evidence. Must be made 30 days prior tohearing.

F. 26 b 1 and 3 stage above

G. Discovery only through leave of the court--26 b2 a and b stage

4. Depositions--rule 30, 31

i. Witnesses placed under oath and responds to questions by attorneys from each side, typed by stenographer

ii. 2 types: oral response and written responses

iii. 30 b) 6 witness-- for corporations, the corporation must determine the appropriate spokesperson to be deposedin the issue

iv. Can only depose 10 people, and can only last 7 hours, unless otherwise specified

5. Interrogatories--rule 33

i. Less expensive and may be better for detailed, objective information than a deposition

ii. Any party may send to any other party written questions that require a written response under oath

1) Unlike depositions where the witness is required to answer based on knowledge at the time of thedeposition, interrogatory parties are required to provide facts that are reasonably available to them, even ifthey have to review documents, but not required to supply information they do not have

2) But answers are likely to be drafted by the attorney, so do not ascertain the credibility of the witness

iii. Limited to 25 and other party has 30 days to respond

6. Production of Documents and Things--Rule 34

i. Permits a party to require another party to produce for inspection, copying, or testing all relevant documents or

other tangible thingsmust describe what is sought with particularity; must respond within 30 days

7. Medical Examination--Rule 35

i. Can file a motion for the court to order a medical examination where the health and physical or mentalcondition of a party is in controversy

ii. If the party who was examined deposes, or asks for the examiners report, they waive any privilege fromprevious medical exams or subsequent medical exams based on the same controversy or condition35b4

8. Requests for admissions-- rule 36

i. Used to determine what issues are and are not in dispute about

ii. Usually used to get parties to admit to certain issues, in order to narrow down to the actual disputed issuerespond in 30 days

9. Discovery permitted in product liability cases if it involves: (United Oil v. Parts Assoc.)

i. The same or similar claims previously made arising from

ii. Same or similar products at issue

a. Sometimes need to go through each interrogatory to see if it is relevant: reasonably calculated to lead toadmissible discovery and therefore relevant


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b. The burden is on the party resisting discovery to clarify and explain precisely why its objections are propergiven the broad and liberal construction of the federal rules. However, at trial, the burden is on the offering partyto demonstrate relevance, to show that there is "substantial similarity" of other accidents, complaints, claims, orlawsuits.

10. Electronic Discovery

i. Spoliation =the destruction or alteration of evidence, or the failure to preserve property for another's use asevidence in pending or reasonably foreseeable litigation

ii. Counsel has a duty to: (Zubulake v. UBS Warburg)

1) In anticipation of litigation, preserve the information through litigation hold

2) locate relevant information and preserve that information, often through learning retention policies ofthe company and communicating directly with the key players

3) Then must produce it to other party

- Discovery of ESI has become increasingly important, and vast amount of information is inelectronic form

iii. Adverse inference instruction--given for spoliation of evidence if 3 elements are establshed:

1. That the party having control over the evidence had an obligation to preserve it at the time it wasdestroyed2. That the records were destroyed with a culpable state of mind3. That the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier offact could find that it would support that claim or defense

-This supports an inference that the destroyed evidence was adverse to the party responsible for itsdestruction.

iv. WI electronic discovery rules

1. Court management of electronic discovery--court can appoint a referee to help in e discovery process2. Meet and confer obligation3. Producing e business records--make them more like federal e discovery rules4. Treating e discovery rules same as paper documents5. Safe harbor provision--if information destroyed as normal business practice without culpable mind,then safe harbor provided if it is routine operation and good faith operation

11. Privilege

i. Trumps relevance always

ii. 2 questions:

a. Is there a privilege?--Confidential communication between doctor/patient, lawyer/client, etc.not the

underlying facts

b. Has it been waived?Ex: If person voluntary opens the door to the public, such as to their own mentalhealth and alleges mental health claim in suit (i.e. emotional distress cases), they waive theirconfidentiality rights of their mental health records

-Once a party discovers that they disclosed privileged information, they can notify the other partyand that other party must return it or dispose of it until after a determination on the privilege hasbeen made26b5b

iii. Protective Order: Rule 26 c:


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a. Things that are relevant and unprivileged, but still shouldnt be discoverable b/c of a special needifinformation is not relevant, is privileged, or potentially harmful/embarassing to the client

b. First, party must demonstrate that they attempted to work it out with the other party before asking thecourt to intervene; then the Court balances need of discovery against collateral harm to person if allowedto be discovered--ex: trade secret

c. Judicial discretion over whether to let it in the information--court and attorneys may look at it, but notpublic (seal)

iv. Work product privilegeonly applies to work in anticipation of litigation

a. Work productattorneys notes, legal impressions, intuitions about witnesses and a case

b. Rule 26 b 3 trial preparation materials is not discoverable unless substantial needno other way to getaccess and unduly burdensome to do so

1) *Exception: Ordinarily, a party may not discover documents and tangible things that areprepared in anticipation of litigation or for trial by another party or attorney, but the materialsmay be discovered only if:

a) It would otherwise be discoverable under rule 26 b 1--if the information is relevant:

reasonably calculated to lead to admissible evidence OR

b) The party shows that it has substantial need for the materials to prepare its case and

cannot obtain the information without undue hardship (necessity)

b. Are work products from opposing counsel discoverable? No, even though they are relevant, it wouldallow one attorney to take advantage of all the work that the other attorney has done and opposingattorney is supposed to come up with own legal impressions of the case (Hickman v. Taylor)

-If the opposing attorney is not unduly burdened from getting the information, then they must doso on their own through depositionscannot take another attorneys notes and impressionsotherwise

12. Sanctions on DiscoveryRule 26g and Rule 37

a. 26g= Anything that the attorney signs and certifies that later turns out to be incorrect may be liable forsanctions

b. 37a=Motions for the court to compel discovery must be made after a good faith effort to resolve it without thecourts involvement

b. 37b= Sanctions allowed for parties that fail to properly disclose under 26ainitial disclosures

c. 37c= 1) If party fails to disclose/supplement the disclosures, then any evidence you didnt disclose cannot beused at trial

2) Failure to admit something that is later proven at trial will open the party up to sanctions

d. 37d=Sanctions if after being properly served with proper notice, fails to appear at deposition, or if properlyserved with interrogatories or request for inspection fails to serve its answers, objections, or written responses

-Has requirement that confer with other side before file motion for sanctions for discovery abuse--like asafe harbor provision

e. 37e= Failure to provide electronic information cannot typically be sanctioned if there was good faithdestruction

f. 37f= failure to participate in the 26f conference makes you liable for sanctions


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VII. ADJUDICATION

1. 6th amendment requires trial by jury in both state and federal court for criminal cases; 7th Amendment: "In suits atcommon law, the right of trial by jury shall bepreserved"

a. Technically, 7th amendment does not apply to states, but most states have laws that apply the same rule

2. Rule 38--whether or not to seek jury trial after pleadings made

a. If dont bring claim within 10 days after last pleading, then you waive it

b.Why have a jury trial? Most plaintiffs want a jury in civil cases, since juries more likely to be sentimental totheir claim; whereas D might want a bench trial since less passion and more law based

3. 2 Part Test to determine whether a civil case should have a jury trial: (Chauffeurs Local v. Terry)

1) Compare the action to the type of actions back in 1791 before the merger of courts of law and equity--whetherit was of law or equity claim back then

-Why? Because jury right is to be "preserved" under the 7th--meaning if it was a legal claim in 1791, it isa legal claim now

-Ex: Terry

a) Union argues that Union is like a fiduciary, and when it does not represent the employee, it is a breachof trust which is equitable, and not liable to jury trial.

b) Employee argues that claim is like attorney malpractice, a tort for money damages, which is a legalremedy, and liable to trial.

c) However, SC agree that fair representation is more like a trust, and equitable. However, the claim ofbreach of contract against the employer is more like a breach of contract, which is legal in nature. So, b/cboth, need to look to second prong of test.

2) *Examine the remedy sought to determine whether it is legal or equitable in nature--more weight given to thiscomponent

-Ex: Terry

a)The only relief sought is compensatory damages seeking backpay, and therefore is legal in nature, andsubject to jury trial.

b) Title 7 claims under civil rights act seek compensatory damages but are still considered equitable, buttitle 7 is restitutionary and an equitable relief. Whereas the claim here is public in nature and is legal innature.

-Concurring: the historical test should be and can be simplified. Should decide 7th Amendment cases on

the basis of the relief sought and its history. If the relief is legal in nature, in that it is historically availableas a legal remedy, then the parties have a constitutional right to trial by jury. The nature of the remedy ismore important than the nature of the right.

-Dissenting:Agree with the test the majority used. However, the case is most analogous to a trust action,which is equitable in nature.

4. Policy on 2 part test:Should the historical test be simplified or junked altogether?

-Yes, because makes judicial experience easier for judges to make more just and predictable decisions. Judgesshould not be expected to be historical scholars. Too many cases do not have prima facie analogies to 1791 cases.


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-No, since history is prevalent to law and need to be able to fit within the common law framework. Preventsjudges from allowing their own prejudices or decide a case based on whatever basis they feel, over a historicalbasis.

- Should cases be heard by a judge or jury? Jury more persuaded by emotions and sentimental relief. Judge moreexperience with questions of law.

5. Non article 3 courts and juries

a. Not all adjudication of federal claims occurs in courts with Art III judges

1) Ex: state courts, federal agencies and administrative courts, specialty courts

b. SC: In non Art III courts, a jury is required for the adjudication of "private rights" but not for "new statutorypublic rights"

6. Juries in State Courts

a. 7th amendment does not apply to state courts, but most state constitutions provide a right to a jury in civil casescomparable to the 7th

i. May also grant jury when the federal courts would not, like in equity cases

7. Jury Selection and Voir Dire

a. The Venire and Voir Dire

i. Jurors summoned from a master roll of prospective jurors--venire1) Must represent a reasonable cross section of the population--voter registration lists, licenseddrivers, taxpayers, etc.

ii. Voir dire--process of selecting jurors and eliminating others by gathering information aboutprospective jurors knowledge, bias, or opinions about the case or a close connection with any of theparties

2) Juror can be struck by judge or through peremptory challenge by an attorney--generally no

need to be given for peremptory challenges

iii.) Voir dire may be done entirely by a judge, or by an attorney, or both and may be done in a group orindividually

3) Struck "for cause"--unable to be unbiased, stake in case, too much knowledge, etc.

b. Peremptory challenges

i. Challenges by each sides attorneys to strike a potential juror for bias, or knowledge, or stake in the case

ii. Helps legitimize verdicts and help equalize the playing field between the partiesiii. In federal civil cases, each side is limited to 3

1) In federal felony prosecutions, D is entitled to 10, and P 62) In capital cases, each side allowed 20

iv. Traditionally, lawyers could exercise for any or no reason without explanation--but today it is subjectto important qualifications

c.JEB v. Alabamacan peremptory strikes be made on the basis of gender solely or is this forbidden under equalprotection as discrimination, as it is for racial strikes?

i. Paternity and child support case, D used all peremptory strikes to eliminate all male jurors from jury,and jury entirely made of women. P, father, said that strikes violated equal protection for intentionaldiscrimination based on gender.


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ii. SC majority: Intentional discrimination on the basis of gender violates the equal protection clause,particularly where the discrimination serves to ratify and perpetuate archaic stereotypes about the relativeabilities of men and women. Gender alone is not an accurate predictor of juror attitudes, and this is thetype of stereotype the equal protection clause protects against.

-Also, allowing such challenges does not give a fair representation of the community

iii. Gender based peremptory challenges, which are held to heightened scrutiny, does not lead tolegitimate state interestschallenge must be exceedingly persuasive to sustain a gender based selection

iv. 3 step process for determining whether a peremptory challenge is discriminatory:

i) Opponent must establish a prima facie case of discrimination

ii) Burden shifts to the proponent of the strike to come forward with a constitutionally permissibleexplanation

iii) Court must determine whether impermissible discrimination has been established

v. Concurring: Peremptory challenges enables each side to exclude jurors it believes will be most partialto the other side, and should still be allowed to be exercised without reasons stated, as long as it is notbased on discrimination. If keep adding constitutional restraints, then this hurts the rationale for a

peremptory strike, that they should be made forlawyers strategy and intuitions.

v. Dissenting 1: The two sexes differ, and have different outlooks on cases. Therefore, there is alegitimate interest in such challenges since it is strategic for the attorney to win the case.

vi. Dissenting 2: Cannot say that men were singled out for discriminatory treatment in the case since Pstruck as many female jurors as D did male jurors. Both sides had to have struck the same group to invokediscrimination concerns.

-Overall, should be able to take gender into consideration with how it may affect the type of case at issue,but should not be able to strike the person solely because of their gender. The strikes should be based onthe individual, their experiences and views, and this should be the main consideration in making theperemptory strikes. A male and a female may have the same opinion on an issue, whereas two females or

two males may have entirely different views on the issue. Gender may be a consideration, but this shouldbe outweighed by the individuals views and experiences as based on the issue in the case at hand. Takenall these considerations in the aggregate should determine whether the strike is constitutional. Thereshould be more weight given towards for cause questioning over gut instinct and assumption-basedperemptory challenges.

8. Summary JudgmentRule 56

a. Rule 56c =authorizes the court to enter judgment without benefit of a trial whenever it appears that: "1) there isno genuine issue as to any material fact and 2) that the movant is entitled to a judgment as a matter of law"

i. Determines whether there is an issue of fact to be tried--judgment entered without benefit of a trial

b. 2 situations where summary judgment is appropriate:

i. When parties agree on all the "material" facts and the dispute is entirely about the law--whether liabilityexists; matters of law are for the judge to decide

ii. When the parties disagree about the facts, but there is no "genuine" dispute--one side has so littleevidence that no reasonable jury could find for that side

c. Different than 12b motion to dismiss, which says that P does not have a legally cognizable claim for relief;whereas a summary judgment deals with un/disputed facts

Differences:


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i. 12b--whether there are sufficient facts that aplausible claim existsless than summaryjudgment

ii. Summary judgment--are material facts disputed? If yes, then no summary judgment. If haveundisputed facts, do the undisputed facts state a genuine claim? i.e. is the movant entitled to averdict? Must be yes to have summary judgment to show entitled to relief

1) Material--if elements of the substantive law points to whether the fact may affect thesuccess of the claim

2) Genuine issue--if reasonable jurors could reasonably disagree over whether a verdictcan be given to the nonmoving party/P

d. 56 a) and b)--summary judgment can be filed by either P or D and can be made for entire claim or on partialclaim

e. 56 c--Time for a motion, response and reply, proceedings

i. Party may move for summary judgment up to 30 days after close of all discoveryii. Party opposing motion must respond within 21 days after motion is servediii. Movant may file a reply within 14 days after response is served

f. 56e--affidavits; further testimony

i. Affidavits are not required, but an affidavit can be supplemented or opposed by depositions, answers tointerrogatories, or additional affidavits

ii. In response, an opposing party may not rely on own pleading; but response must set out specific factsshowing a genuine issue for trial

-Movant has burden of pleading no genuine issue of fact, but the party challenging the summaryjudgment cannot rest upon mere allegations or denials of his pleading, but must set forth specificfacts showing that there is a genuine issue for trial--ie. that a jury might return a verdict in hisfavor. (Anderson v. Liberty Lobby)

g. Issue over how a judge is supposed to determine the sufficiency of the evidence for summary judgmentif areasonable juror could find for nonmoving based on the facts--if they are not allowed to weigh the evidence, asthis is to be up to the jury

1. Judges are not to weigh evidence, but assess it to insure that it is at least plausible and capable of beingaccepted by a rational factfinder

h. Burden of persuasion:the degree of certainty the fact finder must have before it can find for one side.

1. Always on the moving party

2. Usually preponderance of the evidence, but sometimes clear and convincing standard--in b/wpreponderance and beyond a reasonable doubt.likely does not make that much of a difference

i. Burden of production for summary judgment: coming forward with some evidence

-For the central issue as a whole, it is always on the P

1. Old law standard: Burden of production is on moving party, usually D, to have to prove thatnonmoving does not show any disputed facts and a general claimwith some type of evidence, includingaffidavits, interrogatories, depositions, etc.

2. Current law standard: Ultimate burden of production on the non-moving party, usually P, to showthere is a genuine issue and disputed material facts


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i. Moving party just needs to file for summary judgment, saying P cant prove D did it based onthe evidence, and nonmoving must prove that there is a genuine issue of material fact

A moving party may carry its initial burden of production by:

1. showing that the nonmoving party does not have enough evidence of anessential element of its claim or defense to carry its ultimate burden of persuasionat trial OR

2. Producing evidence negating an essential element of the nonmoving party'scase (easier)

ii.Must be based on affidavit, interrogatory, or other evidence, and the evidence cannot be basedmerely on the pleadings

-If moving party moves for summary judgment, and nonmoving party does not bring any evidence indefense showing a material dispute, if there is an inference on the evidence that moving party brings thatcould result in a reasonable ruling in favor of nonmoving, then summary would not be granted

9. Directed Verdicts/JMOLRule 50

-Only difference with summary judgment, is the time filed. Instead of after discovery, filed during trial. Same

standard applied.

a. If the court determines there is insufficient evidence to support a jury verdict, it may decline to submit the caseto the jury and instead enter a judgment as a matter of law/directed verdict/JMOL

b. Or the court can submit the case to the jury and if the jury returns a verdict for which there is insufficientevidentiary support, the court may enter judgment notwithstanding the verdict (JNOV)

c. Process: Directed verdict during trial: at end of plaintiff's case before D's case. D asks for directed verdict.Almost always denied. Then D makes its case, then P moves for directed verdict. Then likely denied. Closingarguments then made by both sides, then jury instructions given. Jury deliberates, renders a verdict. Then losingparty moves for a directed verdict or judgment notwithstanding the verdict, and in the alternative, judgment for anew trial.

1) Directed verdict and judgment notwithstanding verdict are same thing, but just at a different time.

2) Same standard is applied under rule 50 for both and for summary judgment: Whether areasonable jury could return a verdict for the nonmoving party on the evidence presented. Only when theevidence is so weak for one side that no reasonable jury could find for that side is it to be granted.

d. Rule: P needs one reasonable inference supporting the verdict from the facts to prevent the court fromordering a directed verdict or a JNOV

i. As long as P makes a reasonable inference to the jury based on the facts, judgment is not subject toattack by directed verdict or JNOV

ii. Only when there is a complete absence of probative facts to support the conclusion reached by the juryis there warrant for a JMOL or JNOV

iii. Just like a trial judge during summary judgment is not supposed to weigh the evidence, but only ruleon law, similarly, the appellate court is not supposed to re-weigh the credibility of the evidence, and saywhether the facts given to a jury could render a verdict for the D (Lavender v. Kurn)

e. New TrialRule 59

i. Rule 59--If jury verdict is against thegreat weight of the evidence, the court can order a new trial with anew jury


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1) P often files for a directed verdict, or in the alternative, the lower threshold of a new trial

-Lower threshold to meet than JMOL, but still rareissued over JMOL when the issue isbased on factual determinations

-Ask: Should a new trial been granted, or was the evidence so clear against the party towarrant a directed verdict?

-Usually rendered when the issue still left in question is factually based, misconduct by

counsel, error in trial process, mistakes made by jury

f. Other ways of controlling juries

i. Jury instructions: No guarantee that the juries will follow instructions, but the instructions focus thejury's attention on particular matters and provide a structure for the deliberations

ii. Form of the verdict: seek a general verdict, where jury determines who wins or loses, or a directedverdict, where counsel directs the jury to the verdict via questions prepared by the counsel in line with thejury instruction

iii. Motion to set aside the judgmentrule 60: Broad range of grounds by which a party may move to setaside judgment; Only allowed if there is a fundamental flawlikely to be denied

VIII. ERIE DOCTRINE AND WHAT LAW APPLIES IN FEDERAL COURT

1. Only applies to diversity cases; vertical choice of law: whether federal courts are to apply federal law or state law indiversity cases

2. Rules of Decisions Act: Sec 1652: In diversity cases, the laws of the several states, except where the Constitution orfederal statute applies, shall be regarded as rules of decision in civil actions in the federal courts in cases where theyapply"

a. Swift v. Tyson: In diversity cases, federal courts were required to apply state law only where there was an

applicable state statute or the issue was one of "local law" and there was no federal statute trumping on point atissue. It was not to follo