basic civil procedure outline[1]

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Basic Civil Procedure OutlineProfessor RichardSummer 2006

Chapter 1: Overview of Procedure

I. Jurisdiction and VenueA. Reasons for Concern

a. Convenience /Cost effective nearby judges familiar, maybeinconvenient for the other party

b. Tactics : jury sympathy toward issue, court backlog, etc.c. Federal v. State

i. Federal judges appointed for lifeii. Federal district courts have lighter load quicker

iii. Opposing party may not be familiar with fed court

B. Subject Matter Jurisdiction: 28 USC 1331 and 1332a. Refers to availability of a court to hear a particular disputeb. General jurisdiction can hear any case, unless a statute requires that a

certain type of case be heard in a special court.c. Limited jurisdiction one set up by statute to hear only a particular

type of dispute All federal courts have limited jurisdictiond. Concurrent Jurisdiction Federal courts have concurrent jurisdiction

with state courts if it can be in fed court can also be in state ct.i. Art. 1 Sect. 2 of constitution defines limits of federal

jurisdictionii. 1331 : grants federal courts federal question jurisdiction or

subject matter jurisdiction over any claim that arises underfederal lawiii. 1332 : grants federal courts diversity jurisdiction, which is

jurisdiction over any case where the amount in controversy isover $75,000 and where the case is between citizens ofdifferent states; or between citizens of a state and citizens of aforeign country

iv. Citizen : for diversity purposes he is a citizen if he residesthere with the intention of remaining there indefinitely.

B. Personal Jurisdiction

e. Courts must also have personal jurisdiction over the defendant determines which state a case can be brought in same for bothfederal and state courts within the same state.

f. Citizens of a state/individuals/corporations that engage in certain typesof activity within the state are always subject to personal jurisdictionwithin that state even when not personally served there.

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C. Venue: 28 USC 1391

g. Involves finding the proper locality of the court that is to hear the casein cases where more than one court has both SMJ and PJ.

h. All cases begin in District Court use venue rules to determine whichcourt to use if more than one are appropriate.i. Under most state venue statutes case can be brought in the district

where:i. one party or the other resides or does business or

ii. in the district where the claim arose.

D. Service of Process: Rule 4 2 basic methods

j. Waiver of Service less formal plaintiff mails the defendant a copyof the complaint and waiver forms and suit proceeds if defendant mailsback a signed copy of the form

k. Process Server more formal draft summons, signed and sealed bythe COC the summons and complaint are delivered to the defendantby a process server.

II. Stating the Case

A. Rule 11: Drafting Proper Complaint

a. Complaint application to judicial system to use its power to grantrelief cannot be made for frivolous or improper purposes

b. Rule 11 :i. Lawyers responsibility for bring claim well grounded in fact

and existing lawii. Allows courts to impose sanctions for violations of the rule

iii. Bridges v. Diesel Services -- Sanctions of Rule 11 are designedto deter improper conduct and will only be applied inexceptional circumstances.

B. The Complaint

a. State courts and federal courts have different rules as to what goes inthe well-pleaded complaint

b. Bell v. Novick Transfer A federal court is not required to apply statewell-pleaded complaint rule even when the case originated in statecourt under state substantive law.

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C. The Response 2 Basic Types

a. Pre-Answer Motions that ask the court to take some action thedefendants favor do not address the substance of the plaintiffs

complaint and so do not require any factual developmenti. Rule 12(b)(1)-(5) some reason why the action cannot proceedin the particular court where plaintiff filed

1. lack of SMJ, personal or venue, defective summons orimproper service

ii. Rule 12(b)(6) belief that plaintiff has no right to relief underthe substantive law

iii. Rule 12(c) -- defendant may not understand the complaintbecause the complaint is too vague defendant moves for amore definite statement

b. Answers responds to specific allegations 2 types

i. Rule 8(b) denial of allegations -- defendant believes that anallegation is untrue or does not know whether the allegation istrue

ii. Rule 8(c) -- affirmative defenses such as plaintiff waived hisright to make a claim or statute of limitations expired, etc.

iii. Miscellaneous information re: answers :1. Defendant will use more than one of pre-answer

motions if they are denied he must file an answerc. Counterclaim Rule 13 defendant has a complaint against the

plaintiff 2 Typesi. Compulsory Counterclaim arises out of the same transaction

that gave rise to the plaintiffs complaintii. Permissive counterclaim does not arise out of the same

transaction as the plaintiffs complaintd. Cross Claims Rule 13(g) if the plaintiff sues more than one

defendant the defendants can file cross claims against each other aslong as the cross claims arise out of the same transactions that gaverise to plaintiffs complaint

e. Third Party Claims Rule 14 a defendant can file a third partyclaim if he believes that there is a party liable to him or any damagesclaimed by the plaintiff.

D. Amendment to Pleadings Rule 15a. Parties can amend pleadings as the case proceed through discovery and

new facts come to light that might alter the nature of the action.b. Rule 15(a) sets out general rules and Rule 15(b) deals with amendment

made during the trial as new evidence is introduced.

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III. Parties to the Lawsuit

A. Permissive Joinder - Rule 20a. Parties who may be joined to a lawsuit, as co-plaintiffs or co-

defendants, by the original plaintiffB. Compulsory Joinder Rule 12a. A court can order, on a motion by the defendant, that a third party be

brought into the suit as a co-plaintiff or codefendant because theoutcome of the lawsuit might affect the third partys interests.

b. Courts order joinder when the substantive law applied will involve therights or liabilities of a third party, or when more than one party isclaiming the same property, or when the relief granted to one partywill affect the interests of a third party.

c. CJ creates tension between the right of parties to a lawsuit to controltheir own claims and strategies and the principle that the courts should

decide the claims of all parties who will be affected by the outcome ofthe lawsuit.C. Intervention Rule 24

a. A party can petition the court to allow him to intervene as acodefendant or co-plaintiff if he can show that the suit would inflicthardship on him if conducted without him.

D. Class Actions Rule 23a. An alternative to the joinder of multiple plaintiffs used when the

number of potential plaintiffs is so great that it would make more senseto allow a few parties to represent the entire class in the lawsuit.

IV. Discovery

A. Definition : allows parties to obtain information from each other and fromindividuals and entities that are not parties to the suit

a. Butler v. Rigby a legal privilege can be used to protect informationfrom discovery under Rule 26

B. 5 Methods

a. Required Disclosures Rule 26(a)(1) the parties to the lawsuit arerequired to provide each other with certain basic information

b. Inspection of Documentsi. Rule 34 a party can request that the opposing party provide

him with documentsii. Rule 45 a party can obtain documents from other witnesses

by subpoenaiii. Documents definition printed and written papers and records

as well as sound recordings, videotapes, photographs, andemail.

c. Oral Depositions Rule 30 and 45 a party can question any witnesswith information about the suit under oath in the absence of a judge.

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d. Written Interrogatories Rule 33 a party can send another partywritten questions to be answered in writing cannot be used to gaininformation from nonparties

e. Physical and Mental Examinations Rule 35 a party may move froma court order allowing him to obtain a physical or mental examination

of another party must show that the condition to be examined is amatter in dispute

V. Pretrial Disposition Summary Judgment

(allows the court to dispose of cases where trial is not necessary and would serveno purpose)A. Rule 56 Motion for SJ may be made at any time, but are usually not

granted until after discoveryB. Rule 56(c) -- allows courts to grant a motion for SJ when the case present

no genuine issue as to any material fact a. Houchens v. American Home Assurance court granted SJ because

although the plaintiff cold show that her husband had disappeared andhad be declared legally dead by a state court, she could not show thathe had in fact died or that he had died by accident.

i. Therefore there was no issue of material fact in her case againstthe carrier of her husbands accidental death insurance policy.

C. Other Methods of Pretrial Disposition:a. Default Judgment Rule 55 if a defendant fails to answer the

complaint or fails to defend his case, the court will enter a judgmentfor the plaintiff.

b. Dismissal i. Rule 41(b) if a plaintiff does not obey a court order during

the pretrial proceedings the can dismiss the caseii. Rule 41(a) plaintiff can apply for a voluntary dismissal

D. Methods of Streamlining the trial:a. Request for Admission Rule 36 a party can seek admission of the

truth of certain facts or the acknowledgement of the genuineness ofspecific documents

b. Pretrial Conference Rule 16 a court can order a conferencebetween the parties to discuss settlement terms.

VI. Trial

A. Steps in the Process

1. Court notifies parties of trial date2. Jury selected

a. Judge and attorneys question prospective jurors b. Both parties may challenge jurors for cause or make peremptory

challenges challenges for which no cause is stated.3. Attorneys each make opening statements

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4. Plaintiff presents his casea. Introduces evidence and calls his witnesses each witness is examined

and cross-examinedb. After cross-examination, the plaintiff can redirect testimony and the

defendant is given the opportunity to re-cross

5. Defendant has the opportunity to move for Judgment as a matter of law(Directed Verdict) under Rule 50(a)a. It is the defendants way of saying that even if everything the plaintiff

has said is true, under the substantive law applied plaintiff has norelief

6. Defendant Presents his case7. Plaintiff can now move for directed verdict8. Rebuttal -- Plaintiff rebuts the defendants case and Defendant is given an

opportunity to rebut the rebuttala. General rule a party can only rebut new issues that were raised in the

previous stage of the trial.

9. Now either party can move for Directed Verdict under Rule 50(a) notusually granted10. Both parties make Closing Arguments, Judge gives jury instructions or charge

a. This explains the jury what law applies to the evidence - and theparties can object to any portion of the charge they think is erroneous(Rule 51)

11. Jury Returns Verdict12. Losing party can move for new trial or for a judgment as a matter of law

(Judgment Not-withstanding the Verdict) up to 10 days after the jury verdictgiven (Rule 50(b) and 59)

13. Losing Party can Appeal the courts final judgment if raised a point during thetrial that he believes was disposed of erroneously

14. Party can move to set aside the judgment (rare in cases like evidence ofcriminal conduct by the judge) Rule 60(b)

C. No Jury Trial

a. Motion for Judgment as a Matter of Law court can dispose of caseon motion when the party that carries the burden of proof cannotproduce enough evidence to meet that burden will be granted if courtbelieves that a reasonable jury could come to only one verdict.

b. Jury must weigh material issues of fact and decide the credibility ofwitnesses courts do not take witness credibility into account indeciding on Motions for JNOV

i. Norton v. Snapper Power Equipment A JNOV cannot begranted after a motion for a directed verdict has been deniedbased on the same facts.

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VII. Former Adjudication

Similar to double jeopardy in a criminal case if a party to a case is not happywith the outcome he should not be able to bring the same case again.

A. Which issues can be litigated in 2nd Action1. Claim Preclusion (Res Judicata) if a plaintiff loses a case, he

cannot bring another action based on the same claim. If thedefendant loses he cannot bring a second action in order the setaside the first judgment.

2. Issue Preclusion (collateral estoppel) if the party to case raises anargument based on the set of facts in that case and is unsuccessful,he cannot use that same argument based on those same facts in asecond action with the same opposing party. Conversely, if a partyprevails on an issue, he may assert that issue as binding in asubsequent matter.

Example: if A sues B on a promissory note and B allegesfraud as a defense, if B loses he will not be able to assert

fraud based on the same events in any subsequentpromissory note suit that A brings.

B. Rush v. City of Maple Heights whether or not injuries to both personand property resulting from the same wrongful act are to be treated asinjuries to separate rights or as separate items of damage, a plaintiff maymaintain only one action to enforce his rights existing at the time suchaction is commenced.

Chapter 3: Subject Matter Jurisdiction of Federal Courts

I. Introduction

A. General Information1. SMJ deals with types of cases a court can hear personal jurisdiction

limits courts in relation to a particular defendant.2. Courts must have both personal and SMJ over a claim to proceed with the

case.3. Art. III, Sect. 1 gives Congress power to create federal courts4. Art. III, Sect 2 establishes the scope of the federal judicial power5. Concurrent Jurisdiction cases arising under federal law can be brought in

both state or federal courts6. Federal courts have exclusive jurisdiction over certain types of actions

such as bankruptcy and antitrust cases

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B. Reasons for Preference between courtsa. Federal courts have shorter waiting times for trialb. Jury in one area may be more desirable than anotherc. Local state judge may be more or less sympathetic to a local case than

a federal judge

II. Federal Question JurisdictionA. Art. III, Section 2 and 28 USC 1331 provide that the federal judicial

power shall extend to all cases arising under the Constitution and the lawsof the United States. our focus arising under federal law (regardlessof amount in controversy)

B. Well-Pleaded Complaint Rule plaintiffs federal question must appear inthe allegations of the complaint1. Louisville Nashville RR v. Mottley An allegation that an

anticipated defense will be based on federal question is not

sufficient to raise a federal question2. Justification for the well-plead complaint rule is that it is impossibleto be certain what defenses a defendant will raise in the answer whether a case actually involves a federal question can bedetermined before too much time and expense is wasted

C. Process for situation where no basis for federal SMJ :1. In diversity cases move for dismissal thru Motion under Rule

12(b)(1) asserting lack of SMJ is proper2. In federal question cases jurisdiction depends on substance of

plaintiffs claim Motion under Rule 12(b)(6) to dismiss thesubstantive claim is proper

3. Jurisdiction is not waived if the defendant fails to move for the twoabove dismissals

4. If a defendant challenges both personal and SMJ and the case isdismissed -- the results are:a) If dismissed for lack of SMJ plaintiff may refile in state

courtb) If dismissed for lack of personal jurisdiction plaintiff may

hot refile in state court because the federal courts decisionthat personal jurisdiction was absent will bind the state courtunder the rules of issue preclusion.

III. Diversity Jurisdiction

A. Authority1. Art. III, Sect. 2 permits federal courts jurisdiction over

controversies between citizens of different states and betweencitizens of a state and foreign citizens and subjects.

2. 28 USC 1332 grants federal courts diversity jurisdiction seeabove definition

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3. Created to combat the fear that state courts would be biased againstlitigants from out of state.

B. Citizenship1. Redner v. Sanders Residency is not synonymous with citizenship

a) Citizenship depends on present domicile (residency) andintent to remain indefinitelyb) Time for measuring citizenship for diversity purposes is as

of the date on which the complaint is filed in federal court(commencement).

2. Individual has only one domicile evidence by drivers license,voter registration, bank accounts, etc.

C. Complete diversity no party on one side of the suit may be a citizen ofthe same state as any party on the other side.

D. Corporations and Dual Citizenship1. Dual Citizenship A corporation is deemed to be a citizen of everystate in which it is incorporated and the state where it has its chiefplace of business (28 USC 1332(c)).

2. A corporation can only have one chief place of business3. Two tests for determining the chief place of business:

a) The corporate nerve center where most managerial andexecutive functions are controlled.

b) Some courts may also look at where the everyday businessactivities or muscle of the corporation exists.

E. 28 USC 1332 (a) Amended provides that an alien admitted to the US forpermanent residence is deemed a resident of the state in which the alien isdomiciled.1. Eliminated diversity between a state citizen and a permanent

resident alien living in the same state2. Saadeh v. Farouki -- interpreted not to extend diversity over an

action between an alien and another alien who has achievedpermanent resident immigration status in the US

F. Amount in Controversy1. 28 USC 1332 also requires an amount greater than $75,000 to be in

controversy for federal jurisdiction to be present.2. Courts view allegations in the pleading as controlling and do not

guess about the likelihood of the plaintiff collecting what is askedfor

3. Different claims may be aggregated to meet the amount:a) Single plaintiff with two or more unrelated claims against a

single defendant may aggregate the claims to meet he thestatutory amount

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b) Two plaintiffs with claims against a single defendant cannotaggregate if their claims are separate and distinct.

c) Where there are multiple plaintiffs or multiple defendantswith a common interest and a single title or right, the valueof the total interest is the amount in controversy

4. Counterclaims when a plaintiffs claim exceeds $75,000, acompulsory counterclaim may be heard regardless of the amount, but a permissive counterclaim requires an independent basis forjurisdiction

G. Not subject to Diversity Jurisdiction domestic cases, successions, probatematters can only be brought in state court

IV. Supplemental Jurisdiction

A. 28 USC 1367 defines and creates supplemental jurisdictionB. Definition jurisdiction over a claim that is part of the same case or

controversy as another claim over which the court has original jurisdiction.

C. Put another way : When a federal court has proper original jurisdictionover a claim, it may hear all other claims that form part of the same case orcontroversy allows fed ct to hear claims it would not otherwise hear whenbrought with another claim that shares a common nucleus of operative factsand there is no impediment under 1367(c) or (b).

D. Jin v. Ministry of State Security supplemental jurisdiction exists when astate law claim shares a common nucleus of operative facts with a federalclaim and jurisdiction would further judicial economy, convenience, andfairness.

V. Removal

A. 28 USC 1441 generally allows a defendant to remove a case if theplaintiff could have originally filed the case in federal court.

B. If the district court lacks jurisdiction, or there is a defect in the removalprocedure, the federal district court is to remand the case back to the statecourt Caterpillar v. Lewis:1. if the district court fails to remand a case when was improperly

removed, the ensuing adjudication will be upheld if the federal jurisdictional requirements are met at the time the judgment wasentered.

2. Considerations of finality, efficiency and judicial economy dictatethat ht judgment be upheld if the jurisdictional defects areultimately cured.

C. If the removal is based on diversity (see Quest 2 on Exam)1. 1441(b) prevents one sued in home state from removing even if

have a federal question or diversity2. Diversity must exist when filed and removed!3. Cannot be removed more than one year after filed

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4. Need to file notice of removal in federal and state court andremoval must happen within 30 days of notice

Chapter 4: The Erie Problem

I. State Courts as Lawmakers in a Federal System

A. Rules of Decision Act the laws of several states shall be followed infederal diversity cases1. Swift v . Tyson supreme court interpreted the meaning of the

laws as used in the RODA and held that it did not includeunwritten decisional law by a states highest court, unless it was alocal nature such as land title. Statutory written laws did fallwithin the meaning of laws

2. The federal courts are free to ignore the state unwritten law, evenwhen the matters before them were not explicitly governed by

federal law.

B. Constitutionalizing the Issue

1. Supreme Court reversed Swift in Erie RR v. Tompkinsa) Laws of several states include state common law

consisting of decisional law from the states highest court.b) Held that a states substantive law must be applied in federal

diversity cases, except in matters governed by the FederalConstitution or by Acts of Congress

c) Rejected the existence of a federal common law in favor ofindividual states substantive common law

d) Specifically held that Congress has no power to declaresubstantive rules of common law applicable to the states

II. Limits of state power in Federal Courts

A. Outcome Determinative Test used for determining whether or not statelaw is substantive1. Guaranty Trust v. York applying the test, the court held that a

state statute of limitations applies in a federal diversity case ifdisregarding the state would significantly affect eh result of thelitigation, as compared with the outcome had it been tired in statecourt.

a) When state practices conflict with a federal statute or rule ofcivil procedure, the state practices applyb) Examples :

(1) State law, rather than federal law, determines whenan action was commenced for purposes of statestatute of limitations

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(2) State law requiring plaintiff to post bond whenfiling a shareholders derivative suit appliedalthough no similar federal statute exists.

(3) State law determines the enforceability of arbitration agreements

(4) State law denying out of state corporations notqualified to do business in the state the right to sue,applies to federal courts within the state

B. Interest Balancing Approach expanded the outcome determinative test fordetermining whether or not state law is substantive.1. Byrd v. Blue Ridge a state decisional law was held not to apply in

a federal diversity case where it allowed a judge, not a jury, todetermine a factual issue

2. Several factors to be balanced :a) Considering the relation between the state rule and the

underlying state rightb) Examining the strength of the federal policy before holdingthat it must yield to a counter state policy, and

c) Finally, consideration of the outcome determinative test

C. Rules Enabling Act & Hanna v. PlumerCategories of Cases:1. Federal Judge-Made Law : if case deals with FJML issue is

whether the rule is procedural if procedural then Federal lawapplies if substantive then state law appliesa) if federal rules of procedure conflict with state rules, the

federal procedural rule will prevail unless it violates theConstitution or terms of the Rules Enabling Act

b) Hanna test rule is deemed procedural if not likely to causeforum shopping / the difference between state and federalcourt would not likely result in forum shopping

2. FRCP & REA gives the supreme court the power to adoptprocedural rules as long as they do not abridge, enlarge or modifysubstantive right and preserve the right to jury trial

3. Federal Statutes if statute valid and applies to issue at hand thenfederal law applies

D. Semtek Intl v. Lockheed Martin1. Facts after a California federal court dismissed the plaintiffs

action on the basis of the state statute of limitations, a Marylandstate court dismissed a subsequent suit brought by the plaintiff onthe same grounds.

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2. Rule The claim preclusive effect of a judgment on the merits in afederal diversity action is governed by the law of the state in whichthe federal court sits.

Chapter 2: Personal Jurisdiction

I. Constitutional Framework

A. Jurisdiction signifies the power of a court to render a judgment that othercourts and governmental agencies will recognize and enforce.

B. Personal Jurisdiction power of one court to render a binding judgment onsomeone who may have never been in the state

C. Basis in the Constitution1. Art. III, Sect. 2 sets forth the jurisdictional boundaries of federal

courts2. Art. IV, Sect. 1 the Full Faith and Credit Clause which requires

one state to recognize and enforce judgments of another state3. Sect. 1 of the 14th Amendment Due Process Clause provides thatno state shall deprive one of life, liberty or property without dueprocess of law.

4. Supremacy Clause of Art. IV provides that the constitution andfederal laws are the supreme law of the land even if contrary tostate law.

5. Erie Doctrine holds that in the absence of controlling federal law,the federal courts must look to the law of the state.

II. Personal Jurisdiction

A. In Personam Jurisdiction based on the state having power over a personpresent in the state.1. Due process requires that in order to exercise jurisdiction over a

person, reasonable methods must be employed to give the personnotice of the action and afford him a reasonable opportunity to beheard.

2. A state can obtain in personam jurisdiction over a non-resident onlyif that non-resident is personally served with process while withinthe state.

B. In Rem Jurisdiction based on the state having power over a persons

property present in the state.1. In rem can only be obtained if the non resident owns propertywithin the state, and that property is seized by way of attachment(a prejudgment seizure of property through court order to secureassets to satisfy future judgment)

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C. Pennoyer v. Neff service of process by publication in a newspaper isvalid for in rem jurisdiction, but will not suffice for in personamjurisdiction.

1. Held that service by publication on one not present within the stateand who owned no property in the state at the time the action was

commenced, was not valid2. Involved concepts of consent and presence if a defendantconsented to the states assertion of power or if the defendant waspresent in the state, jurisdiction existed.

D. Procedure for attacking personal jurisdiction1. if one is sued in another state and jurisdiction is disputed raise the

defense of lack of personal jurisdiction in a pre-answer motion or inthe answer.

2. if the defense is not raised early enough, the courts may hold thatthe defendant has waived the defense of lack of PJ

III. Corporate Defendants/Specific and General Jurisdiction

A. Minimum Contacts new standard for asserting in personam jurisdictionwith respect to corporate defendants1. Personal jurisdiction over a non-resident corporate defendant exists

where the defendant has certain minimum contacts with the stateand maintenance of the suit does not offend traditional notions offair play and substantial justice.

2. International Shoe v. Washington a non-resident corporation thatemployed salesmen in a state to sell its products, shipped at largevolume of its product to the state, and benefited from the laws ofthe state, was subject to jurisdiction of that state.a) Consideration should be given to whether the corporation:

(1) Has presence in the state, such as systematic andcontinuous activities, or

(2) Whether the corporation enjoys the benefits andprotections of the states laws and

(3) Whether it would be reasonable to require thecorporation to defend a suit in the state.

3. Shaffer v. Heitner International Shoes minimum contactsstandard applies to all forms of jurisdiction, including in rem andquasi in rem.a) Even where property there is property in the state that serves

the basis for jurisdiction, but is unrelated to the cause ofaction, there must be sufficient minimum contacts with thestate to support jurisdiction over the defendant.

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b) Court held that neither the ownership of shares of stock of acorporation located in the forum state nor holding positionsas directors and officers of the corporation, is sufficientminimum contacts to support jurisdiction over individualdefendants.

B. Specific Jurisdiction one of two types of in personam jurisdiction1. SJ cause of action must arise out of the activities in the forum

state, or the defendant must have purposefully availed himself ofthe privilege of conducting activities in the state, thereby invokingthe benefits and protections of its laws.

2. McGee v. International Life a single business transaction isenough to satisfy the minimum contacts test, provided thetransaction is what gave rise to the claims and was purposefullyundertaken.a) Held that a non resident insurance company that refuses to

pay a life insurance claim may be sued in the state where theinsured resided since the contract was delivered to theinsured in the state, premiums were mailed from theinsureds home to the defendant and the insured was aresident of the state that the time of his death.

3. Hanson v. Denckla established sufficient minimum contactsa) Sufficient minimum contacts there must bee some act by

which the defendant purposefully avails itself of theprivilege of conducting activities within the forum state,

thus invoking the benefits and protections of its laws.

b) SMC does not exist if the only contacts with the state aresporadic and inadvertent and do not give rise the claimbeing asserted.

c) Held that where a company has no office in the state andneither transacts nor solicits any business there, it has not performed any acts within the state so as to establishjurisdiction merely sending income payments to a residentof the state does not constitute an act by which the company purposefully availed itself of the privilege of conductingactivities within the state.

4. Worldwide Volkswagon v. Woodsona) In order to establish sufficient minimum contacts a

defendant must have purposefully availed himself of theforum state, if not, considerations of fairness, convenienceand the interests of the state in overseeing the litigation areirrelevant. Foreseeability alone is insufficient.

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b) Held that where a car was sold and distributed in one state,and the buyers were involved in an accident while driving itthrough another state, the seller and distributor defendantsdid not purposefully avail themselves of the state where theaccident occurred.

c) It does not matter that it was foreseeable that the car wouldbe driven in other states.d) Court ruled that it was not foreseeable that the defendants

would be haled into court in a state where they did notconduct business or intend to have the products reach thatmarket.

5. Asahi Metal Industry v. Superior Courta) SMC do not exist merely from intentionally putting a

product into the stream of commerce with the expectationthat it will reach the forum state.

b) There must be some act showing that the companydeliberately intended to take advantage of the states marketor laws.

c) Even if SMC do exist, jurisdiction over the party must notoffend the traditional notions of fair play and justice.

d) Court held that a manufacturer of a tire tube valve, who didno business with the forum state, and did not import anyproducts thereto, lacked SMC with the state even though itwas aware that its products might windup in the state.

e) Further, the manufacturer was from a foreign country and itwould not be fair or just to require it to defend in a distantforum with a foreign legal system.

f) Advertising and other activities would constitute asestablishing contacts

6. Burger King Corp v. Rudzewicza) Once SMC have been established, there is a presumption

that it would be fair to require the defendant to defend thesuit there.

b) To overcome the presumption, the defendant has the burdenof proving that it would be fundamentally unfair to defendin that state.

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c) The court held that whether a franchisee entered into acontract with the franchiser which expressly provided whichstates law would govern, it was up to the non residentfranchisee to show that he would be unfairly prejudiced orharmed by having to defend in that state. Since he

purposefully availed himself with a company from anotherstate, SMC existed, even though he does not do anybusiness within the state.

d) Without any showing of unfairness or harm, the franchiseeis subject to the jurisdiction of the forum state.

C. General Jurisdiction

1. Arises when the activities in the forum state are so substantial andcontinuous that they need not have a connection to the cause ofaction alleged.

2. Coastal Video v. The Staywell Corp

a) Facts Coastal, a Virginia corporation distributingcopyrighted employment manuals sued The StaywellCorporation in Virginia federal court for copyrightinfringement.

b) Rule A court may exercise general jurisdiction over a non-resident corporation if the corporation conducts a substantialand continuous corporate operation within the state.

3. Burnham v. Superior Courta) Transient jurisdiction (service of process on non resident

defendant while present in the state) by itself is sufficientfor personal jurisdiction over an individual defendant. Such jurisdiction comports with due process and it is notnecessary to establish minimum contacts with the state.

b) The court held that jurisdiction was properly obtained over anon resident defendant who was visiting the forum state onbusiness and was served with divorced papers while in thestate.

IV. Consent as a Substitute for Power

A. Carnival Cruise Lines v. Schutte1. Reasonable forum selection clauses are enforceable to establish

consent to jurisdiction.2. Minimum contacts test is inapplicable when the clause is

reasonable.3. The court upheld jurisdiction based upon a forum selection clause

contained on the back of the cruise ticket. This amounted toconsent to jurisdiction.

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V. Notice

A. Note : In addition to jurisdiction, due process requires that a defendant begiven notice that proceedings have been instituted against him. Thisrequires that reasonable efforts be made to provide notice to personsaffected.

B. Mullane v.Central Hanover1. Notice by publication fails to comply with due process where the

names and addresses of the parties are known.2. The court required that notice be given by mail, rather than by

publication to those individuals whose addresses were known.

C. State and Federal Rules for Notice1. In federal cases, notice may be given by personal service by the US

Marshall, or by a person over eighteen years of age and not a partyto the suit.

2. Mailing notice to a defendant and requesting the signing of a waiverof personal service is a proper method of informal service ofprocess

a) If a waiver is not obtained, other methods of giving noticeare proscribed by the rules depending on whether it is anindividual or corporate defendant, domestic or foreign, or astate or governmental agency.

VI. Self Imposed Restraints on Judicial Power

A. Long Arm Statutes

1. Authorize various methods of service of process on out of statedefendants. They authorize states to extend their jurisdictionalarms beyond their own borders

2. Gibbons v. Brown a states long arm statute may restrict personal jurisdiction even if the constitution would otherwise permitjurisdiction.

a) Here, the states long arm statute provided that a non-resident defendant who is engaged in substantial and notisolated activity within this state is subjected to jurisdictionof the state.

b) The court held that jurisdiction was not proper where theonly contact eh non resident defendant had with the statewas the filing of a law suit two years earlier against adefendant who was not a party tot eh current suit.

B. Venue 28 USC 1391 only one on venue1. Determines where the litigation takes place based upon statutory

limitation on the geographic location of the litigation.

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a) If there are a number of federal district courts within a state,venue statutes will provide which district is proper.

b) Venue may be determined by the place of defendantsresidence or where the activity that is the subject of cause ofaction took place.

2. Dee-K Enterprises v. Heveafila) Venue is determined solely from statutory rather than

constitutional sources. This differs from jurisdiction whichrequires a statute and then a constitutional analysis under thedue process clause.

b) The court held that a general federal venue statutesubjecting alien corporations to suit in any judicial districtoverrides other federal statutes that may contain specific

venue provisions.3. Corporations are deemed to reside where it has personal jurisdiction4. Aliens are deemed to reside in any district in the US5. If an action is brought in state court, federal venue statutes are

irrelevant since they apply only to federal actions.

C. Declining Jurisdiction Transfer and Forum Non Conveniens1. State and federal courts have the power to decline jurisdiction even

though it exists.a) Example long arm statute that is more limiting than that

which is permitted by the constitution, other situations where there are transfers among federal district courts andtransfers upon forum non conveniens.

2. Forum Non Conveniens (Court created doctrine)a) Definition Discretionary doctrine whereby a court which

has jurisdiction over a case may decline to exercise it asthere is no substantive reason for the case to be broughtthere or if in presenting the case in that court would create ahardship on the defendants or witnesses.(1) Alternative forum must be available(2) And court determines that dismissal is warranted

(a) Private factor convenience(b) Public factor choice of law and interest of

judicial system

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b) Piper Aircraft v. Reyno(1) In applying the doctrine of forum non conveniens,

the fact that the substantive law is less favorable toa plaintiff in an alternative forum than the one inwhich the action was originally brought should not

be given conclusive or substantial weight.

c) Transfer under 28 USC 1404, 1406, 1631(1) Federal statutory law permits transfer to a different

judicial district for the convenience of parties andwitnesses, in the interest of justice.

(2) This allows transfers within the federal courtsystem without the need for dismissal or refilling,which would be required under the doctrine offorum non conveniens.

(3) Ability of one federal court to transfer case to

another federal court provided it has proper venue(4) Test is the new forum more convenient?

Chapter 6 Pleadings

I. Pleading General Information

A. Refers to initial exchange of papers in lawsuitB. Rule 8(a) requires a compliant to include:

1. Recitation of basis for jurisdiction (specify particular statute orarticle proceeding under

a) if diversity must specify citizenship of all parties and theclaim exceeds $75K, and supplemental jurisdiction ifapplicable

2. Short and plain statement of claim showing the pleader is entitled torelief

3. Demand for judgment for the relief soughtC. Rule 10(b) requires numbered paragraphs or separate individual

statements and Roman numerals for each claimD. Rule 10(c) -- exhibits may be attachedE. Rule 7(b) Motions must be written, particularity and grounds for relief

sought

1. Most require a memo in support of motion2. Well settled law that in deciding Rule 12(b)(6) motions the courtwill assume that all of the factual allegations of the complaint aretrue

II. Ethical Limitations Rule 11

A. Requires lawyers to investigate legal and factual sufficiency of a claim before pleading it and establishes an interlocking set of standards,procedures and sanctions

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B. Rule 11 Information:1. Requires all pleadings signed by at least one atty working on it2. Only filed papers are covered3. Does not apply to Discovery4. Need name, address and telephone number (if not there pleading

may be stricken from the record)5. Applies to any paper presented to the court6. Certified as to truth and reasonableness

C. Walker issued sanctions b/c not complete diversityD. Christian -- issued sanctions b/c should have been easily able to discover

errorE. Safe- Harbor 21 Days Notice

1. Rule 11(c)(1)(a) file motion then serve it 21 days later2. Judge on it own may issue sanctions safe harbor does not apply3. Court may impose sanction on:

a) Attorneys, or

b) Parties if they violated the rule or was responsible.

III. Specificity Rule 8

A. Provides for notice pleading requiring the plaintiff to plead only enoughinformation to give defendant a fair chance to respond

B. Some claims require more specificity1. Fraud requires more than short and simple statement of facts

(Rule 9(b))2. Special damages claims must be stated with particularity (Rule

9(g))C. Lower threshold for particularity

1. Capacity (Rule 9(a) it is presumed2. Civil rights claims particularity not needed

D. Stradford v. Zurich --

IV. Allocating the Elements

A. Each party bears some responsibility for bringing its claims to the attentionof the court and the other side1. Gomez v. Toledo it is the burden of the defendant to assert an

affirmative defense it is not the burden of the plaintiff toanticipate affirmative defenses

V. Responding to the Complaint admit, deny, or claim insufficient evidence toadmit or deny the allegations, counter-claim or affirmative defensesA. Pre-Answer Motion

1. Has no bearing on the answer if motion denied must still answerthe complaint if dont answer may be held in default

2. Rule 7 party seeking relief can ask through a motion

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3. Rule 12(b) Defenses : (Most common)a) Lack of SMJb) Lack of PJc) Improper venued) Insufficiency of process

e) Insufficiency of servicef) Failure to state claim for reliefg) Failure to join party

4. Rule 12(b)(6) Motion to Dismiss complaint only if no reasonablebasis for cause of action to proceed Failure to state a claim

B. Answer response to factual allegations can also raise counterclaim,cross-claim or third party claim in answer1. Deadlines :

a) Answer must be filed within 20 days of date of service

b) If Defendant waived service get automatic extension 60days for in state defendant(1) Out of state defendant gets 90 days

c) If defendant is US or federal agency gets 60 days torespond

d) If file a pre-answer motion and it is denied have 10 daysafter judgment to answer

2. Denialsa) Rule 8(b) requires defendant to deny only those

allegations that he actually disputesb) Rule 8(d) provides that any allegation that is not denied is

deemed admittedc) General Denial an allegation that denies each and every

allegation of the complaint(1) Zielinski v . Philadelphia a general denial will not

be valid if any of the allegations being denied havebeen admitted by both parties as true

d) Alternative allegations can allege inconsistent statements(1) Ex. K case A K did not exist, but if it did I did

not breach it.3. Affirmative Defenses Rule 8(c)

a) Must be pled in the answer or the defense is lost cannotpresent evident of the defense at trial

C. Reply

1. Rule 7(a) requires a reply if the answer contains a counterclaima) Rule 7(a) also permits the court to order a reply on its own

motion or on the motion of a partyD. Amendments

1. Rule 15 declares that leave to amend should be freely givenwhich justice so requires

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a) Courts have interpreted this to mean:(1) That the would-be amender should have a good

reason for net getting the pleading right the firsttime

(2) That allowing the change should not hurt the other

side too muchb) Beech v. Aquaslide a court does not abuse its discretionby allowing an amendment to an answer which initiallyadmitted responsibility but now seeks to deny it.

2. Party may amend once without court permission3. Must amend before responsive pleading is filed4. Can obtain court permission after the deadline court will usually

grant leave to amend but if the other party can show negligence orcarelessness the court may not allow

E. Relation back

1. Rule 15(c) -- permits an amended pleading to relate back to the dateof the original pleading whenever the claim or defense asserted inthe amended pleading arose out the conduct, transaction, oroccurrence set forth or attempted to be set forth in the originalpleading.

2. Issue with this Rule : Whether the original complaint, gave noticeto the defendant of the claim that is now being asserteda) Moore v. Baker in order to relate back to the time of the

original complaint, a proposed amendment must have its basis in the same facts that are alleged in the originalcomplaint.

b) Bonerb v. Richard A claim will relate back if theoperational facts set out in the original complaint aresufficient to put the defendant in notice that the amendedclaim could be brought.

F. Judgment on the Pleadings

1. Rule 12(c) -- allows judgment on pleadings as long as it does notdelay the trial

2. Court accepts all facts alleged as true3. Not often used

Chapter 13 Joinder

I. Joinder of Claims

A. Rule 13 & 18 allow P and D who are already in a suit to file additionalclaims arising against the other certain counter claims are compulsory

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B. Rule 18(a) provides that a party asserting a claim to relief as an originalclaim, counterclaim, cross-claim, or third party claim, may join as manyclaims as the party has against the opposing party (plaintiffs or defendants)1. Does not require the same transaction test2. Court must have SMJ over all claims (significantly restricts)

C. Counterclaims1. Rule 13 allows a defendant to bring any claims that she may have

against the opposing partya) Permissive counterclaim Rule 13(b) defendant can bring

any claim he ahs against the plaintiff, regardless of whetherit is related in any way tot the plaintiffs claim

b) Compulsory counterclaim if the defendant has a claim thatarises out of the same transaction or occurrence as the plaintiffs claim, defendant must raise the claim in hisresponsive pleading

(1) Test: Logical relationship test are the two claimslogically related in any way

D. Cross-Claims filed by one co-party against another (Rule 13(g))1. Same transaction test party may file any claim against a co-party

arising form the same transaction or occurrence as either theoriginal complaint or the counterclaim

2. Cross-claims are always optional, never required

II. Joinder of Parties -- Plaintiffs

A. Rule 20 allows a plaintiff to sue multiple defendants, and/or for multipleplaintiffs to join, if 3 requirements are met:

1. Plaintiffs are suing or defendants are being sued, jointly, severally,or in the alternativea) Jointly when they share the rightb) Severally when each has an individual right to recoverc) In the alternative when they allege that one of them, but not

both, is entitled to recover2. Claims arise from the same transaction or occurrence, or series of

transactions or occurrences3. Some common question of law or fact common to all parties must

arise in the actiona) Common question must bear a significant relationship to the

action

III. Joinder of Parties Defendants

A. Rule 20 also allows plaintiff to sue multiple defendants uses 3 part test:1. Jointly, severally or in the alternative2. Same transaction or occurrence

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IV. Adding Parties to Counterclaims & Cross-claims

A. Rule 13(h) allows a party to add additional parties to the cross claim orcounterclaim.

V. Third Party Claims (Impleader)

A. Law holds multiple parties responsible for an injury1. Parties who are jointly liable have a right to seek contribution orindemnity (usu. under Ks) from other responsible parties

2. Rule 14 if plaintiff does not or cannot sue all of the responsible parties, 14 preserves defendants right to seek contribution orindemnity by allowing defendant to bring the other responsibleparties into the suit.

3. the person joined is called the 3P Defendant4. the person joining is called the 3P Plaintiff5. Process called impleader

B. Rule 14(b) allows a plaintiff to use impleader if that plaintiff has been

sued for affirmative relief in a counterclaimC. No need for court permission to implead if done within 10 days of filingthe original answer

D. Vicarious Liability where 2 defendants are both liable law allows themto seek indemnity (vicarious liability) or contribution (in joint liability)

VI. Compulsory Joinder where people must joinA. Rule 19 comes into play when a party moves to dismiss the action

because of the absence of one or more interested personsB. Raised by :

1. Motion (Rule 12(b)(7)2. Answer

C. If feasible to join and dont run the risk of claim being dismissedD. Rule 19 persons to be joined if feasibleE. Rule 19 3 Steps

1. Should the parties be joined ? (Rule 19(a)) 3 Situations whereshould be joined if feasible:a) If absence prevents court from giving complete relief in

lawsuit b) Where absence causes individual prejudice a person

should be joined if that person claims an interest relating tothe subject of the action and is so situated that he dispositionof the action in the persons absence may as a practicalmatter impair or impede the persons ability to protect thatinterest.

c) Where absence prejudices the parties if the absence leavesany of the persons already subject to a substantial risk orincurring double, multiple or otherwise inconsistentobligations by reason of the claimed interest

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2. May the parties be joined ?a) If court determines party should be joined next step

whether party can add -- personal and SMJ must be present3. Consequences of Non-Joinder

a) Court will determine whether to dismiss by looking at the

factors listed below of Rule 19(b)F. If court orders joinder and plaintiff refuses case is usually dismissedG. If one cant join b/c of jurisdiction then consider :

1. The extent to which a judgment rendered in the persons absencewould prejudice the absent person or the parties (degree ofprejudice)

2. Whether any prejudice could be reduced by protective provisions inthe judgment, shaping of relief or other measures

3. Whether a judgment rendered in the persons absence will beadequate (judgment adequate)

4. Whether the plaintiff will have an adequate remedy if the case is

dismissed.

VII. Intervention

A. Rule 24 allows strangers to the suit to join as parties in order to protecttheir rights or interests

B. Permissive Intervention Rule 24(b)1. Party may seek to intervene when either:

a) A federal statute grants a conditional right orb) When the applicants claim or defense shares a common

question of law or fact with the existing suit.C. Intervention by Right Rule 24(a) right to intervene without court

permission1. A party has a right to intervene when either of the following are

met:a) A federal statute grants an unconditional right to interveneb) Applicant:

(1) Claims an interest relating to property ortransaction

(2) Is so situated that the disposition of the action mayas a practical matter impair or impede theapplicants ability to protect that interest, unless

(3) The applicants interest is adequately protected byexisting parties.

VIII. Interpleader where a party faces multiple, inconsistent claimsA. Typically used when party who is liable to someone but is ot completely

sure to whomB. Elements of Interpleader :

1. Stake thing that is being claimed by two or more persons (can beproperty or an obligation)

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2. Stakeholder person who is in possession of the stake3. Claimants parties who seek to obtain the property or performance

of the obligationC. 2 Types of Interpleader

1. Rule Interpleader Rule 22

a) Allows stakeholder to commence an interpleader action infederal courtb) Jurisdiction and venue same as any other federal case -

must have SMJ, PJ and venue2. Statutory Interpleader 28 USC 1335more useful

a) SMJ requires only minimal diversity among the claimants(1) Citizenship of stakeholder usually not considered-

at least one claimant diverse from any otherclaimant

(2) Amount in Controversy stake must be worth$500 or more

b) PJ (28 USC 2361) allows court to serve processanywhere in the United Statesc) Venue (28 USC 1397) venue proper in any judicial district

where one or more of the claimants reside

IX. Severance of Lawsuits Rule 20(b) and 42(b)

A. Justifications of Sever1. Court may sever when case is unmanageable or unduly complex2. when the presence of one claim may prejudice another claim

X. Consolidations of Actions

A. Rule 42(a) allows a court to consolidate existing actions that are currently

pending before it if those actions involve a common question of law orfact

XI. Class Actions -- Rule 23A. One or more representatives litigates not only his personal rights, but also

the rights of other who are similarly situated.B. SMJ same consideration as other federal casesC. Diversity consider only the citizenship of the representatives of the class

1. amount in controversy every member must meet the $ amount incontroversy

D. Requirements to be certified as a class action:

1. Certification should be made as soon as possible aftercommencement of the action

2. Two step Process :a) Court determines as to whether appropriate as class actionb) Court must determine which category of class action is

appropriate

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3. Standards for determining whether action is appropriate as classaction: Rule 23 (a)a) Numerosity so numerous that joinder of all members is

impracticableb) Commonality there must be questions of law or fact

common to the classc) Typicality claims or defenses of the representative partiesare typical of the claims or defenses of the class(1) Turns on several factors size of claim, legal

source of claim, whether representatives ormembers are subject to any defenses

d) Adequacy requires that the representative parties willfairly and adequately protect the interests of the class

4. Categories of CAa) Rule 23(b)(1) numerous necessary parties many absent

parties, each of whom, generally speaking, meets the test fora necessary party under 19(a)b) Rule 23 (b)(2) Injunctive or Declaratory Relief where

the party opposing the class has acted or refuse dot act onground generally applicable to the class, thereby makingappropriate final injunction or corresponding relief withresponse to the class as a whole

c) Rule 23(b)(3) The Damages Action catchall categorydesigned to deal with situation where class actions mightstill be appropriate but where the claims are not asintertwined

XII. Other Representative Litigation

A. Shareholder derivative actions Rule 23.11. Usually brought against the officers and/or directors of a

corporation2. Seeks compensation for harm caused by the corporation by

improper decisions of the officers and directorsB. Unincorporated Associations Rule 23.2

1. Allows suits involving unincorporated organizations to take a formsimilar to class actions

C. Differences in the two above:1. 23.1 suit is against the associations officers or directors2. 23.2 the association is suing or being sued by a 3P

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2. Pretrial Disclosures Rule 26(a)(2-3)a) Expert testimony - identity and report

(1) Signed(2) Qualitifcations(3) Opinions and grounds for opinions

(4) All information considered(5) Amount of compensation(6) Experience over last 4 year(7) Disclose 90 days prior to trial

b) Lay Witnesses name and contact information for all maycall at trial (disclose 30 days prior to trial)

c) Tangible Evidence documents, etc that may be used attrial disclose at least 30 prior to trial

IV. Types of Discovery

A. Depositions

1. Deponent person being deposed can be parties or non parties only type of method of seeking information from non parties2. Initiated by giving reasonable notice to all other parties3. If the location or timing is too burdensome, the party deponent may

petition the court for a protective order4. Non Party Deponents

a) Notice does not require them to showb) Send subpoena requiring witness to appear at the time and

place specifiedc) Rules Governing Subpoena :

(1) Cant require him to drive more than 100 miles(2) Must be issued by district court in the district

where the deposition will be conducted(3) Service can be made:

(a) Anywhere in the district where the subpoenawas issues

(b) Within 100 miles of place of depo(c) If state law allows, anywhere in the state in

which the depo is to be conductedd) Subpoena Duces Tecum requires the non party to attend

and bring documents5. If the deponent is a party to the suit no need for subpoena he is

required to attend

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6. Corporationsa) Rule 30(b)(6) allows party to notice depo of corporation

and describe in detail information soughtb) Corporation must designate one or more persons within the

organization or who agrees to testify on behalf of org.

c) If party knows particular person he wants to depose at thecorporation just notice the depo of that person and not thedepo of the corporation

7. Depo Procedurea) Depo can take place anywhere or by telephoneb) Question and Cross examining sectionc) Objections can be made as to form or content must be

made precisely and non-argumentatively8. Protective Orders

a) Rule 30(d)(4) allows party to seek protective order whenthe deposition is conducted in bad faith or in a way that

unreasonably annoys, embarrasses or oppresses thedeponent(1) Order must be obtained from judge in the district

where the depo is taken(2) Not often used

9. Time Limit Rule 30(d)(2) one day of 7 hours unless court order10. Deposition before commencement of action Depo for the

Perpetuation of Testimony taken to preserve the testimony of animportant witness who is in poor health or about to leave thecountry

B. Interrogatories

1. Written questions that the recipient answers under oath2. Only against parties no court approval3. If non party nothing prevents sending them they just dont have

to answer them4. No more than 25 questions unless the court approves more each

subpart constitutes a question5. Must be answer w/in 30 days

C. Inspection of Documents

1. Rule 34 allows party to inspect documents and tangible things inthe possession of other parties

2. Two ways to Inspect documents of non parties:a) Noticing the depo of a person with subpoena duces tecum

requiring person to bring documentsb) If no testimony is necessary just send subpoena requiring

non party to produce and permit inspection of tangible itemsor to permit inspection on the premises

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D. Request for Admissions

1. Rule 36 allows a party to ask another party to admit certainmatters

2. If other party does not object or deny the matter, it is deemedadmitted

E. Physical/Mental Examinations

1. Rule 365 makes it possible to force a party to submit to a physicalor mental exam

2. Must have a court order (unlike the rest of discovery)

F. Protective Orders

1. Rule 26(c) allows a court to enter a protective order limitingdiscovery when needed to protect a person or party fromannoyance, embarrassment, oppression, or undue burden orexpense

2. Trade Secrets secret informationa) Court may conduct an in camera inspection provided tocourt and not to the other parties

b) Court then distills and provides the parties just what theyneed

G. Work Product

1. Rule 26(b)(3) covers documents and tangible things prepared inanticipation of litigation

2. Can only be obtained upon a showing of Need and cannot be gottenfrom any other source

H. Expert Information

1. Rule 26(b)(4) governs discovery of information and opinions heldby experts

2. Clear distinction between those who may testify at trial and thosewho are retained but will not testifya) Mandatory disclosures provide information from one who

may testifyb) If not testifying usually not discoverable, but upon a

showing of need may discover

I. Preventing Discovery Abuses

1. Rule 26(g) attempts to prevent abuse from occurring by requiringall discovery documents to be signed

2. If violate court may impose sanctions and the rule authorizesexpenses and attorneys fees

3. Rule 11 is not applicable Rule 26(g) is the only provisionapplicable to discovery

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4. Compelled Discovery

a) Rule 37(a) if party doesnt comply then party can seek tocompel the discovery and get order from the court

b) Order may impose sanctions

5. Failure to answer Questions at Depoa) A party or non-party deponent who refuses to be sworn in ata depo or to answer a question after being sworn in may beheld in contempt of court (Rule 37(b)(1)).

b) Consequences/Options can certify the question or getjudge on the phone for him or her to decide whether thequestion should be answered when the attorney advisesclient not to answer.

Chapter 9 Resolution before Trial

I. Settlement

A. Settlement most cases settle judicial approval unnecessaryB. Informal Dismissal Plaintiff voluntarily dismissesC. Formal Dismissal by consent decree entered into by both parties and

signed by court has effect of final judgmentII. Default

A. Rule 55 person who fails to respond to a claim can be declared in defaultand may have judgment rendered against it

B. 2 Stages :1. Entry of Default Rule 55(a)

a) When party fails to plead or otherwise defend the case2. Default Judgment after default is entered, claimant may mover forenter of the default judgment

C. Judgment may be entered by the Clerk if:1. Claim is for a certain sum, or a sum that can be made certain by

calculation2. Entry of default was based on the partys failure to appear3. The defaulting party is not an infant or an incompetent person4. The defaulting party is not the US or a federal officer or agency

D. All other cases, the court (judge) enters the default judgment (after motionand hearing, etc)E. Rule 54(b) judgment by default cannot award damages in excess of that

set out in the complaint, nor can it grant relief that is different from thatrequested in the complaint

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F. Challenges to DJ : Rule 55(c) and 60(b)1. Entry have the entry set aside by showing good cause why it did

not plead or otherwise defend2. Default Judgment have judgment set aside if the party can show

procedural irregularities

a) If procedural is so significant that it results in denial of dueprocess automatic grounds for reversal.III. Involuntary Dismissal

A. Rule 41(b) allows the court to order dismissal for two reasons:1. Failure to prosecute if the plaintiff fails to move the case along to

completion, the court can dismiss ita) Rare

2. Failure to comply with rules or court ordera) Due to defect lack of jurisdiction, etc.\b) Sanction sanction dismissals are rare

B. Effect Rule 41(b) Dismissal will be an adjudication on the merits which

prevents plaintiff from suing the defendant again.1. Basic Rule Involuntary Dismissal operates as an adjudication onthe merits unless of the following are true:a) Court dismisses for lack of SMJ, PJ, orb) Dismissal for failure to join a necessary party ORc) Court specifies in the dismissal order that adjudication is not

on the meritsIV. Voluntary Dismissal voluntary on Plaintiffs part

A. 3 Ways Case can Be Dismissed:1. By Notice if defendant not answered, or a motion for summary

judgmenta) May be done w/o court approvalb) Dismissal effected by Notice of Dismissal filed with court

2. By Stipulation plaintiff can file a written stipulation of dismissalthat has been signed by all parties who have appeared in the casea) Can occur at any point during the case

3. By Court Order plaintiff files a motion asking the court to dismissB. Whether the case can be refiled depends on the type of dismissal:

1. If by Court order or stipulation it is w/o prejudice and Plaintiffcan refile unless the stipulation states otherwise

2. Dismissal by notice is usually w/o prejudice but notice ofdismissal is an adjudication on the merits if it is filed by a plaintiffwho has previously dismissed another action based on the sameclaim

V. Random Alternative Dispute Resolution (he mentioned it in class cant figureout its relevance here --- Sorry!!)

VI. Summary Judgment

A. Rule 56 allows filing Motion for Summary Judgment (MSJ) gives thecourt a limited ability to look beyond the language of the pleadings to theactual facts that each side has marshaled to support its case

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B. Procedure1. Party may seek SJ on all claims in the case or a Partial Summary

Judgment on one or more specific claims (Rule 56(a))2. Both claimant and defendant can move for SJ on a particular claim

common for both to do so

a) File a motion for SJb) Accompany motion by:(1) Affidavit(2) Answer to interrogatories(3) Transcripts of Depositions

C. Standard

1. Rule 56(c) provides that the court shall grant SJ if there is:a) No genuine issues of material fact andb) The movant is entitled to judgment as a matter of law (the

law that governs the issue is in favor of the mover toprevail)

D. Timing is Critical1. Rule 56(c) MSJ must be served at least 10 days prior to thehearing on the motion

E. Opposition to MSJ opposing party may submit its own evidencesupporting its side of the argument including affidavits and memos

F. Effect1. If SJ granted has effect as final judgment if granted as to the

entire case2. Losing party is entitled to appeal usually heard on de novo (as if

never tried to begin with)3. If moving party loses no right to appeal

Chapter 10 Jury Trial

I. Authority

A. 7th Amendment of US Constitution right of trial by jury shall bepreserved

1. Does not create the right but reserves it not applicable in allcases

2. Applies only to civil cases in federal court

II. About Jury Trials

A. Size : Rule 451. No fewer than 6 no more than 12 (usually 9 or 12)

B. Unanimity Federal rules preserve the requirement of unanimity butparties may stipulate to a non-unanimous verdict (Rule 45)

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C. Demand :1. Jury Trial is a personal right of the parties and can be waived by the

parties2. Rule 38(b) party must serve on the other parties a written demand

for jury within 10 days following service of the last pleading

dealing with the issue for which a jury is demanded.3. Any party can file a demand

III. Selecting the Jurors

A. Rules 28 USC 1861-1971 Process for Jury Selection1. Qualifications Rule 28 USC 1865

a) A US citizenb) 18 or older c) resided for one year or more within the judicial district

which she will serve as a jurord) can read, write, and understand the English language

e) can speak Englishf) suffer no mental or physical infirmity that would precludeher from rendering satisfactory service

g) no charge pendingh) no charge pending against he for the commission of a crime

punishable by imprisonment for more than one yeari) Has not been convicted for something punishable for more

than one year

B. Exclusions 28 USC 1863(c) allows people with certain characteristicsto be excluded from the jury pool according to definite standards1. Automatic exclusions military personnel, members of police and

fire departments, gov. officials, etc.2. Exclusion by Request

a) Those without the need to show hardship firefighters,volunteer rescue squads, etc.

b) Other groups and occupational classes must demonstrateundue hardship or extreme inconvenience

C. Voir Dire questioning of jurors to decide qualifications1. Attorneys can exclude jurors by challenges for cause and

peremptory challenges

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2. Challenges for Cause:a) Number unlimitedb) Grounds for justification:

(1) Personal relationship with anyone involved (judge,attorneys, witnesses, etc.)

(2) Juror is employed by one of the parties, etc(3) A strong predisposition for or against one sidebased on reasons other than law

3. Peremptory Challenges

a) Limit 3 for each party exclude juror without reasonsb) US Supreme court can limited the use if it detects patterns

based on race, gender, national origin, etc.

IV. Disqualifying the Judge

A. 28 USC 144 and 455 congress enacted statutes dealing with the questionof when a judge will be disqualified from hearing a matter

B. Specific Grounds for Recusal Rule 455(b):1. judge has personal bias or knowledge of a party2. personal knowledge of the underlying facts3. worked on the matter in controversy4. has been a material witness concerning the matter in controversy5. judge participated as counsel in the proceeding6. judge has financial interest7. judge is close relative to someone involved in the case

V. Jury Instructions

A. Judge instructions the jury as to the law to use in the caseB. Instruction drafted by the partiesC. Objections atty can object and state reasons to any instructionD. Federal court and federal rules give the judge lot of discretion

VI. Judgment as a matter of law (aka Directed Verdict)

A. Rule 50 when clear from the evidence that one side should prevail, thejudge may effectively take the case from the jury by entering JML

B. Both parties can move for this JMLC. Judgment not withstanding the verdict (JNOV) judge enters a judgment

and ignores the jury verdictD. Motion for JML made after the verdict must be filed w/in 10 days after the

entry of the judgment

VII. Motion for New Trial

A. Rule 59 -- must be filed w/in 10 days after judgment and cannot beextended

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B. Two categories where courts will grant a new trial1. jury clearly reached the wrong conclusion2. serious procedural error

C. Can regard the entire case or small limited area

VIII. Claim Preclusion res judicataA. Forces parties to litigate in a single action all claims arising from a singlebasic event

B. Goals :1. provides for judicial efficiency and economy2. one judgment rather than multiple inconsistent judgments (prevents

inconsistent judgments)C. A party who litigates a claim in one suit can never raise the same claim

against the same defendant

IX. Issue Preclusion (Collateral Estoppel)

A. Applies if:1. the same issue is involved in two actions2. that issue was actually litigated3. issue actually decided4. necessary to the decision

X. Full Faith and Credit

A. Article 4, 28 USC 17381. FF&C statutes apply between state and federal courts2. State court have to give FFC to federal court decisions