Article III, Section I – established the Supreme Court Article III, Section II – established the right for Congress to make inferior federal courts to the Supreme Court. Also gives Congress the right to dismantle and limit the courts powers.

- Defines 9 subject mater areas in which federal courts jurisdiction “shall extend to” - Just because a case falls within these 9 categories, does not mean it HAS to be tried in

federal court. They simply CAN be tried in federal court.

Subject Matter JurisdictionDiversity Jurisdiction – cases between citizens of different states – used to provide a neutral forum for cases involving risk for a local bias.

- About 1/3 of cases 28 U.S.C. 1332 (a) – Congress giving federal courts the ability to hear suits where citizens are from different states to cases over $75,000

(1) Citizens of different states(2) Citizens of a state and citizens of a foreign county (unless unless foreigner is a

permanent resident and domiciled in the same state)(3) Citizens of different state in which a citizen of a foreign country is an additional party(4) Foreign state as plaintiff and citizens of a state and different states

People and State Citizenship:The courts way of determining which state an individual belongs to for the purposes of diversity jurisdiction and other legal matters.

- State of mind when filing the suit. Domicile Rule: the state where one is physically present, and plans to be for an indefinite period of time, with no intention of leaving – “no formed intent to leave”

- Cannot relinquish old domicile until you establish a new one (Mas)- Can file in any federal court if you have subject matter jurisdiction

Complete Diversity: must have complete diversity amongst both sides. Meaning no one party from the plaintiff side can share citizenship with any one party from the defendant side.

Corporations and State Citizenship- Corporations are generally treated like people in the eyes of the law.

28 U.S.C. 1332 (c)(1) – corporations are citizens of states in which they are incorporated and where their principle place of business is. (can only have one principle place of business)

- Courts troubled themselves for 50 years over what “principle place of business” meant. o Nerve center, daily operations

- Hertz established that the principle place of business was the nerve center- Hertz v. Friend , SCOTUS (2010)

o F: Hertz did most business in Cali, does business in all states, headquarters in NJo I: How should courts determine principal place of businesso R: Principal place of business = where corporate high level officers direct,

control, and coordinate corporation’s activities. (nerve center/headquarters)o Virtue of simplicity – reduced litigation and made it easy for courts to determine

the nerve center of a corporation

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- Principle place of business can move if the company does in face establish a new nerve center.

- LLC’s and Partnerships are treated like individuals as their individual state citizenships are each taken into consideration.

Amount in Controversy - Plaintiff’s claim is generally accepted in good faith as long as it seems as if it will reach

the $75,000. - Judge will only throw out a claim if he is absolutely certain it will not reach the $75k –

generally give the plaintiff the benefit of the doubt. - Do not have to know for sure that the plaintiff is going to win, and if the award ends up

being for less then $75k, its OK, as long as a reasonable jury could award $75k- Amount must be met for each defendant, or the defendant must be dropped or the the

claim would be sent to state court - Can add claims together- If one plaintiff reaches the $75k award, another plaintiff can “tag along” for less money

as long as it is for the same set of facts and issue. - Diefenthal v. C.A.B. (1982) plaintiffs brought action because they were told they

couldn’t smoke in first class; judge threw the case out because there was no possible way the AIC would reach $75k.

Gordon v. Steele, (1974) F: Plaintiff(Gordon) got injured at home in PA. She then moved off to school in ID. The injury caused permanent damage to wrist and arm. Plaintiff had intentions of staying in ID after school due to work or religious reasons. Defendants are doctors in PA. Plaintiff sued in Federal court in PA for medical malpractice. Defendant filed a motion to dismiss because plaintiff was a citizen of PA, not ID, thus ruining diversity and SMJ. I: Is the plaintiff a citizen of Idaho? R: If the new state is to be one’s home for an indefinite period of time, he has acquired a new domicile. Since Gordon arrived in ID and had no intentions of leaving, then she is a citizen of ID and the suit is allowed because there is SMJ due to diversity.

Mas v. Perry, (1974)F: Plaintiffs were students at LSU. Mr. Mas was a French citizen. Mrs. Maswas from MS. They rented an apartment from Perry (defendant, LA) at LSU where there were 2 sided mirrors. They then moved to IL, then back to LSU. They wanted to sue Perry for damages for the 2 sided mirrors. Plaintiffs filed in federal court. I: Whether the court has SMJ-Diversity over Mr. and Mrs. Mas. R: Domicile only changes when an individual moves to a new state, and then intends to remain there for an indefinite period of time. Mr. Mas was a French citizen so was therefore a diverse. Mrs. Mas was a MS resident because she never intended to stay in LA or IL. No new domicile due to lack of intention to stay anywhere. Strawbridge – all parties must be diverse. No one defendant can be from the same state as one of the plaintiffs.

Federal Question Jurisdiction

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28 U.S.C. 1331: Federal courts have original jurisdiction over all civil matters arising under questions of the Constitution, treatises, or other laws of the US.

- State courts could misinterpret or damage the credibility of the federal laws if they had to interpret it all the time.

- Federal Courts have jurisdiction over all matters that involve labor, environmental, federal tax, patent, securities.

Constitutional Scope of Federal Question- Art. 3 § 2 says that as long as there is a federal ingredient, then Article 3 § 2 grants

federal question jurisdiction. - Statutory scope of 28 U.S.C. 1331 is much more narrow.

Louisville & Nashville RR Co. v. Mottley, (1908)F: Mottley’s were passengers on a train and got injured. They promised not to sue in consideration for free train passes for life. Federal government passes a statute outlawing the free passes. RR company stopped the passes due to the statute, the Mottley’s sued for breach of contract.I: Whether the federal courts have jurisdiction over this matter due lack of the claim arising out of a federal question. R: No, the Mottley’s claim was based on a breach of contract claim. RR’s defense for denying the passes was a federal statute, but the claim must arise out of the conflict. No mention of federal question in the Mottley’s complaint. Well-Pleaded Complaint: Well-pleaded complaint - The complaint by the defendant must claim that the defendant directly violated some provision of the Constitution, federal laws, or federal treaties.

Holmes Test: For a suit to arise under federal law, it must be a federal law that creates the cause of action in the plaintiff’s original motion.

- May not be based on counterclaim, even if exclusive federal jurisdictional matter such as patent infringement come up in the counterclaim.

Removal28 U.S.C. 1441 – (A) allows that the defendant should have equal access to the federal courts as the plaintiff would have. As long as the original complaint could have been filed in federal court, then the defendant can remove to federal court. (B)(2) – if the case could only be removed due to diversity, and one of the defendants is from the state in which the court claim is occurring, then the case is non-removable (home-state rule)

28 U.S.C. 1446 - (b)(1) Notice of removal must be filed 30 days after defendant gets initial complaint or after service of summons (B)(2)(A) – All parties must consent to the removal

28 U.S.C. 1447 – (c) Motion to remand for anything other than subject matter jurisdiction must be done within 30 days after filing. Defense is waived if it is not raised within the 30 days. Subject matter jurisdiction defense can be raised at anytime throughout the trial. (e) if a case is in federal court and a plaintiff moves to add defendants that would destroy diversity, the court may deny the joinder or dismiss the case.

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- If Plaintiff drops Federal question claims, after original filing, the federal court may still determine they have SMJ as SMJ is determined at the time of filing.

- However, if plaintiff adds a federal question claim and thus the suit arises out of federal questions, then the defendant may remove to federal court at that time. – 30 days to remove.

Avitts v. Amoco Production Co., (1995) F: Suit in which P alleged that D damaged a nearby oil production. Complaint vaguely stated that D “violated federal laws”, however never explicitly stated any specific law. D removed to federal court, and then got a heavy injunction placed upon them. They then moved to dismiss for lack of subject matter jurisdiction. I: Did D ever have a right to remove the case to federal court? Can D move to dismiss due to lack of SMJ even though they removed the case to federal court?R: Removal was never proper because the suit didn’t arise out of any specific breach of a federal law, district court never should have heard the case. D can look to remand back to state court because if there is no SMJ, then the case does not belong in the federal court. Doesn’t matter how it got there, if it doesn’t belong there it shouldn’t be there.

Personal Jurisdiction 14th Amendment: Due Process limits states, not the federal government – “no state shall deprive any person of life liberty or property without due process of the law.”Article IV § 1: Full Fath and Credit Clause – the honoring of judgments of other states

- The authority to require the defendant to appear in court and defend the action in a state.- Personal jurisdiction is what the defendant’s pay for deliberate efforts to derive benefits

from or conduct activity in a state- Federal and state courts generally have the same personal jurisdiction standards - In personam jurisdiction: judgment against a person, generally enforceable in other states- In rem jurisdiction: judgment against a specific piece of property, limited in terms of

what property actually resides within the state

Pennoyer v. Neff, (1878)P: Neff sued Pennoyer to recover his land that was sold at auction. Neff cited lack of personal jurisdiction in the original lawsuit where his land was taken. F: Mitchell was Neff’s Lawyer who did some work for Neff. Neff skipped town without paying Mitchell. Mitchell sued Neff, but didn’t serve him personally, as he went back to his home state of CA. Mitchell put the notice in the newspaper. Court entered default judgment against Neff where Mitchell was able to auction off Neff’s land and sold it to Pennoyer. I: Whether a state court exercise PJ over a non-resident who has not been personally served while within the forum state? R: No, Supreme Court rule was that a non-resident must be served with process while within the forum state to get PJ. Must “tag” the defendant in the forum state through transient presence.

- Pennoyer has since been overruled. Was good law for a laong time as people rarely crossed state lines. As business and economy boosted, the PJ ruled needed change.

Challenging Personal Jurisdiction

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Special Appearance: must raise a PJ argument in a specially arranged first appearance to the court. Cannot discuss any other claims other than PJ.

- If a PJ argument is lost, you can raise the issue on appeal later, as long as it was previously properly raised.

Interlocutory Appeal – a direct appeal of a motion in the middle of the case, only some courts allow it. Does not have to wait for the trial to finish. Collateral challenge - D must fail to appear in the forum. This results in a default judgment. P then takes judgment to D’s state and asks the court to enforce the judgment under Full faith clause. D then appears in the enforcing court to challenge PJ.

- Courts do not have to honor every judgment, they can ask what happened to see if PJ and everything went procedurally correct.

- Can only challenge PJ once, if you specially appear and lose, you cannot challenge it again in your home state (collateral estoppel)

Specific Personal Jurisdiction

International Shoe v. Washington, (1945)F: International Shoe sent salesmen to WA to procure shoes orders. All sales were processed through MO where the company was based. No actual paperwork was done through WA, rather the only thing happening was the salesman were present to get shoe orders. State of WA wanted to sue for unpaid unemployment contributions. I: Whether International Shoe had availed itself to personal jurisdiction in WA by having salesman there.R: Yes, “Due process requires only that in order to subject a judgment in personam, if he not be present in the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

- By coming into the state and engaging in the protections under the law, then you are liable to suits that may arise under your actions within the state

Minimum Contacts Jurisdiction – new precedent for PJ - (specific) – did the suit arise out of the specific contact with the forum state? Must have:

1. Contacts within the forum state2. Suit must arise out of these contacts- If yes to both, then there is PJ. 3. Is it unfair or unreasonable for the court to entertain this case in their court?

International Shoe for the most part overrules Pennoyer except for the transient presence aspect of aspect of Pennoyer. Can still snag a defendant in a forum state.

McGee v. International Life Insurance Co., (1957) F: Plaintiff’s son (CA) took out a life insurance policy through International Life Insurance in TX. Plaintiff son then died, Plaintiff looked to collect and insurance denied claim. P filed in CA state court. P got a default judgment in CA state court, took it to TX to be enforced. TX said no PJ.

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I: Whether a non-resident corporation is subject to PJ in a state in which it never had an agent or office, merely because it sold a product to an individual it knew to be in forumR: Yes, due process clause does not prevent CA from entering judgment on D as long as they have satisfied the minimum contacts test. Insurance company knew P’s son was from CA and still maintained him as a client. Enforced the CA judgment.

Worldwide Volkswagen v. Woodson, (1980)F: P purchased a car from dealership in NY. P left NY to move to AZ. While driving through OK, got into an accident. P brought a products liability suit in OK claiming that their injuries resulted from defective design. P sued the dealer, the distributor (D), and VW. No other contacts with OK other than P.I: Whether an OK court may exercise PJ over a non-resident retailer when the D’s only connection with forum is that it sold a car in NY to NY residents who became involved in an accident in OK?H/R: No. SCOTUS says D did not have any conduct with OK and no connection to the forum. PJ here would violate due process. It was the P who had contacts with Ok, not D.

- PJ not permissible unless D has had deliberate, voluntary contacts with the forum state. Reasonableness/forseability of being sued there does not suffice

- D does not have contact with a state simply because a consumer unilaterally transports D’s goods into the forum

Stream of Commerce - Manufacturer makes a component part in state 1 and sells in to another company is state

2. Company then incorporates the component into a larger product and sells it into state 3. Does manufacturer have minimal contacts with state 3?

Asahi Metal v. Superior Ct. of CA, (1987)PP: P sued D (component manufacturer) for a tire defect. CA courts said that since D did business on an international scale, it isn’t unreasonable that they defend claims on a defect on an international sale. Court reasoned that D knew its component parts were being sold in CA and D indirectly benefitted from sales in forum. SCOTUS grants certF: P driving a motorcycle and crashed. P sued claiming that tube in tire was defective. D manufactured the motorcycle’s wheel tubes. Asahi made valve in Japan and sold them to Cheng Shin in Taiwan, but knew their components were eventually being sold in CA. I: Whether the mere awareness that some of their components eventually arrived in the forum state in the stream of commerce constitutes “minimum contracts” with the forum state which do not offend traditional notions of fair play and substantial justice?H/R: (Sandra Day Oconnor) No. Due process requires more than the D’s awareness of its product’s entry into the forum through stream of commerce for minimum contacts. Making D defend in the forum was an unreasonable burden. D’s actions must be purposefully directed toward the forum state. A product arriving solely from the stream of commerce into the forum not enough for minimum contacts. Test: (1) Was there contact? (2) Did it arise from contact? (3) Is it reasonable to make D defend in forum?Concurrence: Stevens believed that Court should analyze how much of D’s business goes into the forum state and the dangerousness of the product they produce.

- Asahi does not clarify much about the stream of commerce. Still unsure of what the ruling would be if a case was to come up.

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Arises out of Element - How to determine whether a suit arises out of the D’s contact with the forum Scotus

hasn’t spoken clearly, 2 common ways to determine this- Evidence test: claim arises of the contacts only if the defendant’s contact provides

evidence of one or more elements of the claim - But for test: claim arises out of D’s contact if the claim would not have arisen but for the

D’s contact with the forum - Court must have personal jurisdiction over each individual claim. Can’t assert PJ over

entire case simple because the court has PJ over one of the claims

Jackson v. CA Newspaper Partnership, (2005)PP: P brought defamation suit in IL where he resided against D, removed for diversityF: Dr. made a speech in CA claiming Bo Jackson used roids, Online paper ran the story. Paper was pretty much exclusive to CA. Only one subscriber in IL. I: Whether uploading newspaper articles to a website which can be accessed by individuals in IL, D made minimum contacts with IL availing them to personal jurisdiction ?H/R: No. Operating a passive website alone not sufficient for PJ. No interactivity between defendants and people in IL. An interactive website where D conducts business and elicit sales can subject them to PJ. Hauling a D into IL court based on an article regarding a local CA happening on a CA website would offend traditional notions of fairplay. D did not try and reach into IL. Article written in CA, from CA sources, most readers in CA, targeted to CA. Dismissed

Zippo Test: extent to which a website is interactive. Key is whether website owner intentionally directed electronic activity into the state and whey that activity gave rise to the action.

In Jackson, website did not direct any electronic activity specifically into IL

McIntyre Machinery v. Nicastro, SCOTUS, (2011) PP: P sued D company in NJ, State courts say they have PJ. F: Nicastro hurt at work using one of the machines McIntyre manufactured. McIntyre Manufacturer is an English company. It sold its machines to an Ohio distributor and then the distributor sold them to Nicastro. McIntyre did not intentionally target US market, but CEO encouraged US sales and often traveled there. I: Whether McIntyre availed itself to PJ in NJ by putting its product into the stream of commerce through a distributor in Ohio?H/R (Kennedy): No. Can only subject oneself to PJ through stream of commerce if McIntyre purposely targets the forum state. There was a US sales strategy, but nothing about specifically targeting the state of NJ. McIntyre company did not do anything to try and target NJ. Dissent (Ginsberg): McIntyre took steps at targeting the US (without targeting any states in particular) and based on international shoe, should be subject to personal jurisdiction in any state where their products eventually ended up.

General Jurisdiction Buying or selling a bunch of items in a state doesn’t subject D to general in personam

jurisdiction

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Court with General jurisdiction has authority to hear any claim against the D, even contacts in a different state

For corporations limited to primary place of business and place of incorporation An individual person is subject to general jurisdiction in the place of domicile

Daimler v. Bauman, SCOTUS (2014) F: Plaintiffs were the relative of workers in a Mercedes plant in Argentina. Suing for torts that occurred during the dirty war in Argentina of the 1980’s. Sued in CA where they sold cars. I: Can a court exercise jurisdiction over a foreign company based on the fact that a subsidiary of the company acts on its behalf in the forum?H/R: No. Company had slim contacts in CA, not “at home”. Case had nothing to do with company’s contacts with CA. Not in line with fairplay and substantial justice.

TO determine PJ, ASK:1. What are the contacts in the forum state? 2. Does the claim arise out of these contacts?3. Did the person purposely avail themselves to the courts? 4. Is the case reasonable to be brought in that forum?

Must answer all these questions as yes to have PJ.

Pennoyer – Transient presence, snag them in the state – still good lawInternational Shoe – if the defendant reached into the forum state and initiated the contact that started the claim – minimum contacts Worldwide Volkswagen – didn’t reach into the forum state by doing something in another state Daimler - Principle place of business/place of incorporation – domiciled in the state

- You can also get jurisdiction by consenting

Long Arm Statutes Due process only a limit on a court’s power not an authorization to exercise that power Court’s authority granted by long arm statutes by state legislature, determining how far

the court can reach. Most states have more than one long arm provision States usually have an enumerated long arm statute, and other statutes that outline when a

defendant has made minimum contacts (such as business statutes, automobile) Some states’ long have adopted long arm statutes that confer on their courts as much

authority to exercise PJ as the Constitution allows First must see if PJ allowed by long arm statute, then if PJ would be constitutional based

on due process of 14th

Federal district court usually applies the long arm Statute of the state in which that district court sits Fed R. Civil. P. 4(k)(1)(A).

If a long arm statute is found to be unconstitutional in a certain case, but constitutional in most instances, courts prefer to leave the statute intact and hold that the statute is unconstitutional as applied to the facts of this case (dismiss but don’t strike down)

Federal courts are not limited under the 14th which applies to states, but the 5th Am DP. This, in theory, allows federal court to exert much more PJ. Yet, fed PJ is governed by above statute which limits PJ over a federal D only if state courts in that state could do so

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Congress does grant federal court to have very broad PJ over certain categories such as bankruptcy, securities litigation, or against a foreign D when no state has PJ

Bensusan Restaurant Corp v. King, 2nd Circuit (1997) F: King(Defendant) opened up a club called the Blue Note in small MO city. King hired a company to make a webpage for his club. Bensusan, owner of a huge club in NYC with the same name sued King in NY Fed district Court for trademark infringement. NY Long Arm: “court has PJ over any person who commits a tortuous act within the state”. Dist found for DI: Even if Bensusan suffered an injury in NY from tort committed in MO, can a court in NY exercise PJ when the state’s long arm statute limits tort claims to acts which occurred within NY?H/R: No. Federal courts use the long arm statutes of the state in which they are located. NY statutes only authorize courts to hear tort cases against out of state defendants when the tort occurred within NY. P doesn’t allege that D committed a tort in NY as required by long arm statute. All of D’s conduct occurred in MO. Even if P suffered injury from D’s action in NY, that does not meet the long arm’s requirements Affirmed

When determining PJ, you must ask yourself 2 questions:1. Does the long arm statute capture the claim?2. Does the constitution grant PJ to the case?

MUST SATISFY BOTH QUESTIONS

Venue 28 U.S.C. 1391 (b) – authorizes suits to be brought in any district where:

1. any defendant resides, as long as all defendants are from the same state2. a substantial amount of the events or omissions occurred that gave rise to the claim, or a

substantial part of the property in question resides in the district 3. if 1 or 2 do not apply, then any district that has PJ will be a proper venue (fall back

clause)(c) Residency

1. A person (even an alien lawfully residing in US) shall be deemed to reside in the judicial district in which that person is domiciled

2. Residency for corporations ????

- Refers to a particular court within a court system in which a suit can be brought. - State courts are generally divided up by geography - Each state generally has their own rules about venue.- Venue is generally about convenience more than anything. Courts are trying to ensure

that the case is litigated in a convenient place for at least one party. - Venue is generally waivable by the defendant. - No constitutional limitation for venue.- Many venues can be considered proper in any particular case under 1391.

Uffner v. La Reunion F: Uffner owned a yacht which was insured by La Reunion (a French company), TL Dallas (a British Company), and Schaffer (an American company out of Georgia). The yacht caught fire

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sailing from Puerto Rico to USVI and Uffner’s insurance claim was denied. Uffner sued for bad-faith denial of an insurance claim. La Reunion moved for improper venue. I: Whether PR was a proper venue for this case. R: Yes, under 1391 (b)(2), “venue is proper when a substantial part of the events giving rise to the claim occurred” in that forum. In this case, although it is a breach of contract claim, the substantial amount of events that gave rise to the breach of contract occurred in Puerto Rico. Therefore, Puerto Rico is a proper venue for the suit. T: Venue is proper when a substantial part of the events occurred in a particular forum. “Substantial” = something that played an important part to give rise to the sequence of events.

Transfer of Venue28 U.S.C. 1404 (a) – transfer of venue

- Allows federal courts to transfer cases amongst each other to find the best forum. Transferring can save time, money, and statute of limitations.

- Can only transfer to another forum where the case “could have been brought” (SMJ, PJ, Venue).

28 U.S.C. 1406 – dismissal of improper venue - Judge will dismiss cases where the venue is improper. Sometimes the court does not have

another choice than to dismiss a case. (for example, a federal court cannot transfer a case to a state court, or a state court can’t transfer a case to a different state’s court system).

Gulf Oil v. Gilbert F: Gilbert owned a warehouse where he had Gulf Oil deliver him some oil to the warehouse. Due to Gulf Oil, the warehouse exploded and Gilbert incurred great losses. Gilbert sued for $350k in NY Federal courts, however everything occurred in VA. All witnesses and evidence are in VA. Defendants moved dismissal under forum non conveniens. I: Whether the case could be dismissed for forum non conveniens (improper venue) despite the court having SMJ and PJ. R: Yes, NY court would have to apply VA law. It would be a lot more convenient for this case to be litigated in VA. It would be a large inconvenient to litigate this in NY die to the evidence and witnesses. Neither party has a particular tie or interest in NY. T: Can have PJ and SMJ, but still be an improper venue. Factors considered: public interests of the courts and systems, private interests of the parties

State Law in Federal Courts- As most subjects of law are left to be made up by the states, often times in diversity cases

federal courts are left to determine the meaning of state law. - Rules of Decision Act stated that federal courts should use the state law in cases that did

not involve federal law.

Section 34 of the Judiciary Act of 1789 AKA 28 U.S.C. § 1652 - Unless federal law applies, the states should be regarded as the rules of decision in civil

cases.

Swift v. Tyson

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- Interpreted the RDA as saying: Courts applied relevant state statutes that applied to the case, but were not bound by common law rulings of state judges.

- Instead, Federal judges would look to all common law rulings in all state jurisdictions on that particular subject and choose which rule they believe to be the “true” common law issue before it.

Black & White Taxicab v. Brown & Yellow TaxicabF: Brown (KY) had a monopoly contract with the railroad company to have access to customers coming off the train. The railroad was supposed to stop other companies from accessing the customers. Black (KY) then also was using the railroad grounds to pick up customers. Brown wanted to sue, but knew that KY common law would find this contract unenforceable. Brown then dissolved the company and established it again as a TN resident to sue in federal state court so the court would rule in their favor. I: Whether KY federal courts are bound by the decision of KY state courts. R: No, under Swift v. Tyson, federal courts could look to all rulings on that issue and determine what they believe to be the “true” common law precedent on that issue. D: (Holmes) – Common law is not one body of law, and different states can interpret laws different. No “true” meaning of particular statutes and issues. Believes Section 34 of the Judiciary Act was misinterpreted by Swift v. Tyson to only have federal courts be bound by state statutes, and not state common laws.

Erie Railroad v. Tompkins F: Plaintiff (PA resident) was hit by a train and sued in NY where Defendant was a resident. Plaintiff was injured in Pennsylvania, where he was hit by a train. Plaintiff sued in NY asking to apply “general law” rather than PA law regarding negligence. Would have gotten a better award out of general law of negligence, as opposed to PA law. I: Whether the courts should apply PA law or are free to choose what law they want. R: The Erie court overturned the Swift v. Tyson ruling, finding their interpretation to be unconstitutional. The Erie court reinterpreted the RDA to say that courts must apply the substantive statutes as well as the common law rulings of that particular state when deciding diversity cases. Swift promoted forum shopping, which created an unfair advantage for plaintiffs. T: Federal courts now must apply the applicable statutes and common laws of the particular state.

- Under Erie, state supreme court decisions are binding over federal courts and appellate decisions are persuasive to federal courts.

Predictive Approach - When federal courts decide on unprecedented matters to the state supreme courts, one

approach federal courts may take is that they may research and try and determine how the state supreme court would rule on that particular issue. This is called the predictive approach.

- Federal courts may also ask state supreme courts to “certify” questions of state law on certain issues, if they are unsure.

Choice of Law Rules

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- How do states determine which particular states laws they are going to apply to a particular case? Plaintiffs domicile? Where the case is filed? Where substantive facts of the case occurred?

- Every state has their own particular choice of law rules.

Klaxon Co. v. Stentor ElectricF: Stentor sued Klaxon and was awarded 100k. Stentor sought to have the judgment corrected by adding 6% interest. NY state law allowed this, however the suit took place in Delaware. The events that caused the suit arose in NY. DE Federal courts were unaware of what laws to apply.I: Whether DE Federal Courts can choose which state law to apply. R: “Act as if you were a state court, apply the state law, and do as a state court would do.” Federal courts must apply the choice of law rules of the particular state in which they are in. The federal courts would have to ask themselves “what is the substantive law that the state court in this situation would apply?” then apply that law. T: Federal court in a diversity case should apply the substantive law that would be applied by the state courts in the state in which the federal court sits

Part II – Procedural Rules - Most states have a similar set of rules as those of the federal rules of civil procedure

Pleadings Rule 3 – an action is commenced by filing a complaint in federal court Rule 8 (a) - claim for relief must state:

1. short provision of the courts jurisdiction over the claim 2. a basic history of the events as to why the plaintiff is subject to relief3. demand for the relief sought

- Under Rule 8(d)(3), a party can plead as many claims or defenses it may have, regardless of consistency. (can be conflicting)

- Defendant then answers and challenges the merits of the claim - Plaintiff must have evidentiary support backing up their claim- Complaint needs to have basic facts of where, when, parties for the cause of action

Original Conley Rule for pleading: - complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Court should let the case move forward, and sort out the validity of the claim during discovery, pre-trial motions, or trial.

Dioguardi v. Durning, 1944F: Plaintiff was an Italian immigrant who spoke broken English. He had some tonics imported which were lost and sold for less money. He sued the defendant but his complaint did not state any specific law or anything is his pleading, however he did state a basic claim for relief. I: Whether the defendant’s notice qualifies as a formal notice.

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R: Yes, although it did not contain any legal claims, Rule 8(a) says all you need is a short plain statement of the facts showing the plaintiff is entitled to relief. The pleading will need to be modified later to continue, but to get into court, it will suffice. T: Just need a short, plain statement of fact showing the plaintiff is entitled to relief to get into court.

- Dioguardi was an example of the Conley standard for pleading, which was the rule for decades.

o Conley was overturned by Twombley and Iqbal. - No longer enough to give a plain, statement of facts. Now need specific information to

form a well-pleaded complaint.

Ashcroft v. Iqbal, 2009F: Iqbal was arrested for what was believed to be in connection to the 9/11 attacks. He contested he was arrested for his race, national origin, and religion. Defendants contend there was no set of facts that could entitle him to relief from the defendants. I: Whether a Rule 8(a) claim has to be supported by facts, and not just be conclusory. R: Yes, the courts are now looking for more legitimacy to the claim as opposed to conclusory accusations. Court was looking for some set of facts or evidence, which they would accept as true, that would legitimize the plaintiff’s claim for relief. Here, Iqbal presented nothing, so the case should be dismissed. T: Must have some factual basis for drawing your conclusion or else the court will rule the accusations are conclusory and unsupported and will dismiss the case. Court looks for legitimate factual evidence to see if that claim has any standing.

- New standard for pleading ^^ overruled Conley

New Standard for Pleading: Twombley/Iqbal Test (two steps) 1. Are the allegations well pleaded?- Court accepts factual allegations as true - Must be more than conclusory statements of law- Must supply facts that relate and are consistent with the cause2. Are the well pleaded allegations plausible? - Plaintiff must plead something “more by way of factual content to nudge claim across the

line from conceivable to plausible”- Stricter criteria, makes litigation less common, many thought this was to prevent the very

expensive process of discovery.- Facts must show reasonable misconduct by the defendant.

Answer to the Complaint – First Responsive PleadingPre-answer motion – an unnecessary motion, does not need to be filed. All defenses can be raised in an answer.

Glannon - Difference between pre-answer and answer

Rule 12(b) objections: 1. Lack of SMJ - fatal

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2. Lack of PJ - fatal3. Improper Venue - fatal4. Insufficient process5. Insufficient service of process 6. Failure to state a claim which relief can be granted - fatal7. Failure to join a party under Rule 19 - (1) SMJ, (2) PJ, (3) Improper Venue, and (6) failure to state a claim are all fatal defenses

which can get a case thrown out of court. They will end the case immediately - (4) insufficient process, (5) insufficient service of process, and (7) failure to join a party

are all curable defenses that can be fixed before the case can move forward. - 4, 5, and 7 can be cleaned up before trial, as instructed by the judge, and the case will

generally proceed.

Rule 12(g) Joining motions (1) a motion for these objections can be combined with any other motion, they can all be

brought together.(2) defendant must raise all defenses in a single first responsive pleading. Cannot file one,

then later file another, they all must be filed in one original motion.- All defenses can be brought together under 12(g)(1)- 12(g)(2) – all defenses must be raised in first responsive pleading, cannot file one, wait

for it to be ruled on, then file another. This would prolong the litigation process for years.

Rule 12(h)(1) a party waives a defense listed in Rule 12(b)(2-5) by omitting or failing to include the defense in first responsive pleading. (2) failure to state a claim in which relief can be granted, or join a person can be raised at anytime up until the decision. These defenses are not waived by failing to raise them in the original pleading. (3) if lack of SMJ is found at anytime, the could should dismiss.

- Waiver is the penalty for leaving 2-5 defenses out under 12(h)(1).- SMJ, failure to state a claim, and failure to join a party cannot be waived.

Hunter v. Serv-Tech, Inc., 2009 F: Hunter sued Offshore, and Offshore filed a motion to dismiss for insufficient service of process. Hunter perfected the service of process, then Offshore filed a second motion for lack of personal jurisdiction due to lack of minimum contacts. I: Whether the defendant is able to raise the PJ claim in the second motion and have the case dismissed. R: No, due to 12(g)(2), you must raise all defenses 12(b)(2-5) in the single original responsive pleading. And according to 12(h)(1), if you do not raise them in the original response, you waive your right to raise these objections. In this case, since PJ was not raised in first pleading, Offshore waived their right to the PJ defense under 12(h)(1). T: Must raise all (2-5) defenses in first responsive pleading under 12(g)(2). If you do not raise them in first responsive pleading, you waive your right to them under 12(h)(1).

Mitchell v. Archibald & Kendall, Inc., 1978

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F: Mitchell was a truck driver who was delivering stuff to A&K. When he got to A&K, they told him to park across the street, on the side of a public road. A burglar approached and shot Mitchell in the face with a shotgun. Mitchell sued A&K, claiming they had a duty of care to protect truck drivers on the grounds near their property. No IL tort law that said A&K had a duty to protect truck drivers on public streets. I: Whether there was a failure to state a claim under the relevant IL duty of care tort law. R: Yes, since A&K has no control over the public streets, and there is no law that makes them protect those who are near their property on the public streets, then there is no valid claim that Mitchell can sue A&K under. T: Under 12(b)(6), there must be a valid law that the plaintiff is suing under in order to claim relief, otherwise the claim will be thrown out.

Answering the Complaint

Rule 8(b)(1) in response to a pleading, a party must: a. State defenses they may have b. Admit or deny the allegations asserted in the complaint - Numbered responses will correspond with numbered paragraph on complaint - Must tell the truth, and admit all that is true, and deny all that is false - Rule 8(b)(4) – can admit part of the allegation and deny part of an allegation- Rule 8(b)(5) – if you are unaware of an allegation, you must state it- Rule 8(b)(6) – if you fail to answer an allegation, you are essentially admitting it.

Rule 8(c) Affirmative defenses – (additional set of facts that releases the defendant from liability regarding the claim)

- A party should raise any defense or avoidance to the claim such as estoppels, waiver, statute of limitations, res judicata, etc.

- Generally, can amend your pleading to add these affirmative defenses at a later date before trial

Rule 12(a) Time frame for pleading 1. Unless specified by a federal statute,

A. Defendant must answer i. Within 21 of being served the summons or complaint ii. If the service was waived under 4(d) 60 days, or if foreigh defendant 90

days B. Party must answer a counter or cross claim within 21 days of being served.

- If preanswer motion fails – then you have 14 days to file answer to the claims under 12(a)(4)(A)

- In answer, the defendant may bring up: 12(b) defenses (or else they are waived), admissions or denials of the facts, affirmative defenses, and counter or crossclaims against the plaintiff.

Reis Robotics v. Concept Industries, 2006

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F: Concept replied to complaint with 6 affirmative defenses and 7 counterclaims. The defenses were very bare and under 8(a) were not very well pled. The court struck the defenses because they were inadequate. T: Response and defenses must be well pled just like the pleading under 8(a). Care and Candor in Pleading

- Sanctions on attorneys were rare, until there was a rule change, then there was a boom in sanctions against attorneys.

- Rule 11 defines the ethical limits an attorney must abide by when pleading and litigating civil cases.

- The big change was that the the pleader must make a reasonable inquiry before they submit a pleading.

- Don’t need to have bad faith to get sanctioned, just need to act like an idiot.

Rule 11(a) Every pleading must be signed by an attorney or record or by party if unrepresented.

Paper must state signer’s name, email address, and phone #. No affidavit necessary. Court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney/party’s attention.

(b) When an attorney presents a pleading, they certify that it is to the best of their knowledge, info, belief, and formed after an inquiry reasonable under the circumstance. (1) Certify that they are not presented for harassment purposes(2) Certify that they are not a frivolous argument (3) Certify that the contentions have evidentiary support, or will likely have evidentiary

support after discovery (4) Certify that denials of factual contentions are warranted on the evidence

(c) Sanctions (1) sanctions can be imposed on an attorney, law firm, or party that violates the rule.(5) when sanctions are imposed for matters of law, they are imposed on the attorney

because the attorney is supposed to know the legal stuff.

Hayes v. Sony Corp, 1988F: Hayes sued Sony for copyright infringement. Hayes made a booklet about a Sony product and copyrighted it. Hayes gave it to Sony to make sure it was all correct, and then Sony published very similar manual. Sony made no money off the manual and Hayes had no intention of trying to sell the manual. I: Whether the plaintiff’s attorney should be held liable for Rule 11 sanctionsR: Yes, since there were no damages (Sony made no profit, and Hayes didn’t lose any profits), there was no claim the court could award Hayes on. Hayes’ lawyer never wrote to Sony to figure out if they made any money on the manual, which showed that the lawyer did not conduct the reasonable pre-complaint inquiry into fact and law required by Rule 11. T: Lawyer must conduct reasonable pre-complaint inquiry into fact and law under Rule 11.

Hunter v. Earthgains, 2002F: Hunter was the lawyer in a class action suit. She argued her case ruling with the precedent from the Alexander case. However, Austin was the case that was binding on this particular issue

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on this appellate court. Summary judgment was granted for Earthgains and then Hunter was sanctioned for asserting a frivolous suit. I: Whether the sanctions were correctly asserted for the attorney raising directly contradictory precedents in that jurisdiction. R: No, although Hunter asserted a precedent that was not binding on this particular court and ignored the precedent that was binding, because there was some discrepancy in the rulings amongst the appellate courts because the supreme court had yet to rule on the issue, Hunter could still win the case had it got up to the supreme court. Cases would never get overturned no one ever challenged precedents as Hunter did. T: Under FRCP Rule 11, an attorney may not be sanctioned for asserting a claim that contradicts precedent unless there is no basis for extending, modifying, or reversing the existing law.

AmendmentsRule 15

(a) Amendments Before Trial (1) A party can amend its pleading once as a matter of course within:

(A)21 days after serving it, or(B) If the pleading is a responsive pleading, 21 days after service of response, or 21

days after service of a motion under 12(b), (e), or (f)(2) In all other cases, party may only amend with the opposing party’s written consent or

the court’s leave. Court should grant it when justice requires(c) Relation Back of Amendments

(1) An amendment to a pleading relates back to the date of the original pleading when:(A) The law provides the applicable statute of limitations allows relation back. (B) An amendment relates back and the limitations period will not bar the

amendment when the new claim or defense arises out of the same conduct, transaction, or occurrence as the original pleading. * (C) When the amendment changes the named party on the claim, the party being brought in by the amendment must have: (i) received notice of the action before the SoL ran out, so they will not be

prejudiced in defending the merits of the action (ii) knew or should have known that the action would have been brought against

it, but for the mistake in the party’s identity.

- Amendments are generally liberally allowed because we want to decide the cases on the merits. Amendments allow the cases to be flexible and allow each side to react and respond to the amendments.

- Ways to amend without the courts permission: o 21 days after serving the leading (answer or complaint)o If it is a responsive pleading, you can amend a responsive pleading within 21

days.o If party files a motion for a 12(b) to dismiss complaint, 12(e) for a more definite

statement, or 12(f) to strike, then pleader may amend within 21 days after the motion is served.

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o Direct consent from the other party. (which is generally given)- Otherwise, you can amend with the courts permission, if justice so requires. Judge

considers the stage of litigation, reason for the amendment, the practicality of the amended claim or defense and the reason for not originally including it.

Beeck v. Aquaslide F: Beeck sued Aquaslide for an accident that occurred with a pool slide. When Aquaslide answered the complaint, they relied on 3 insurance investigations who all said it was an Aquaslide product, and Aquaslide admitted to designing, manufacturing, assembling, and selling the slide. 1.5 yrs later, after the SoL had run, an Aquaslide exec went out to the scene of the accident to see the slide and found out it wasn’t an Aquaslide product. They then sought to amend their complaint to deny the manufacturing of the slide.I: Whether allowing Aquaslide amend their answer would be an abuse of discretion by the district court. R: No, 15(a) allows amendments to pleadings were justice so requires. It would be unjust to allow Aquaslide to pay for the damages of another company. Beeck might be able to figure out who the correct manufacturer is and then amend the pleading to include the correct manufacturer. T: Amendments done in bad faith or creates undue prejudice should be denied. Also, under 15(a), to avoid a miscarriage of justice, proper amendments should be allowed.

- Bad faith amendments usually are denied by the court - Preparation prejudice: don’t have enough time to collect and prepare evidence because

the amendment was filed really late and should have been done much earlier – generally denied by the court

Bonerb v. Richard J. Caron Foundation, 1994 F: Bonerb was a patient at Caron rehab center when he slipped and fell. He sued for the negligent maintenance of the basketball court. He then fired his attorney and got a new one after the SoL had run. The new attorney looked to add a new claim for counseling malpractice. Caron asserting that the SoL had run and it was too late. I: Whether the counseling malpractice claim should be related back to the original filing date of the claim. R: Yes, under 15(c)(2), an amended claim that would otherwise be barred by the SoL, will be related back to the original filing date when it arises out of the same conflict as the original claim. Here, Bonerb’s negligence and counseling malpractice claim arose out of the same event, so therefore the claim relates back. T: 15(c)(2), an amended claim that would otherwise be barred by the SoL, will be related back to the original filing date when it arises out of the same conflict as the original claim.

- Amending to add claims after the SoL has run

Krupski v. Costa Crociere F: Krupski sued Costa Cruise line for an accident that occurred on the Costa Magica cruise ship. Costa Cruise and Costa Crociere were related companies, however Cruise was the ticket agency, who sold the ticket to Krupski, and Crociere was the actual company who operated the ship. After the expiration of the SoL, Cruise told Krupski she had the wrong company on several

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occasions. Krupski then moved to amend and add Crociere as the defendant, then Crociere moved to dismiss, claiming Krupski’s claims didn’t relate back because Krupski didn’t make a “mistake” because she knew who the proper defendant was, she just failed to amend her complaint. I: Whether Krupski’s failure to amend the complaint was fatal to the amendment. R: No, 15(c)(1)(C)(ii) – the DEFENDANT (not the plaintiff) knew or should have known that the action would have been brought against them but for the mistake concerning the proper party’s identity. The mistake does not need to be made by the plaintiff. All that matters was that the proper defendant knew, or should have known that the suit could have been brought against them. And here, since the companies were related, Crociere knew. T: Rule 15(c)(1)(C)(ii) – the DEFENDANT (not the plaintiff) knew or should have known that the action would have been brought against them but for the mistake concerning the proper party’s identity.

- Amending to change parties after the SoL has run

- As long as the new defendant knew that there was a lawsuit where they could possibly be named the defendant before the SoL ran, then they are put on notice and could be amended and added as a party.

- Simply knowing an accident occurred isn’t enough, must know there was a lawsuit. - Important to keep in mind that some SoL’s are shorter than others and may not relate

back to the original filing date because the plaintiff filed too late.

Service of Process- Referred to the delivery of the papers of the lawsuit and also the later delivery of papers

in the lawsuit, such as motions and discovery. - Reasonable likelihood that the defendant will be informed of the claim against them.

Rule 4(a) (1) list of what a summons must include

(2) court may permit a summons to be amended (b) Court clerk will sign and seal a summons for each defendant in the case, once the

complaint has been filed.(c) Serving

(1) complaint and summons must be served together. Plaintiff is responsible for serving summons along with complaint to the defendants within the 4(m) time frame

(2) anyone who is 18+ yrs old and not a party may serve a summons (3) at plaintiff’s request, U.S. Marshall/ court appointed person can serve the defendant.

(d) Waiving(1) Plaintiff may write to the defendant, tell them an action has been commenced against them, and and request they waive proper service of process.

(a-g) things that need to be included in the waiver request (2) if the defendant is within the US, and fails to waive correct service of process, the court must impose:

(1) The expenses later incurred to make the service

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(2) the reasonable expenses, including attorney’s fees, that it takes to collect the service of process expenses

(3) When a defendant waives service of process, it gives then 60 days to answer, instead of 21.

(e) Serving an individual within the US: a person, other than a minor, may be served by:1. Follow the state law for serving a summons 2. serve by doing any of the following

(A) hand delivering a copy to the defendant (B) Leaving a copy at the individual’s dwelling or usual place of abode with

someone of suitable age and discretion who resides there (C) Delivering a copy to someone who has been designated to receive service

(h) Serving corporations, partnerships, or associations: must be served: (1) in the US

(A) like serving an individual in (e)(1), state rules(B) delivering copy of summons&complaint to an officer, managing/general agent, or authorized Agent

(f) Serving a defendant in a foreign country

- These rules are pretty strict because due process requires all defendants to have a fair chance to defend the suit before they lose their life, liberty, or property,

- Cannot defend a suit if you do not know if there is one brought against you.

Mullane v. Central Hanover BankF: Bank petitioned the court for settlement of a trust. The beneficiaries of the trust, 113 people, were given notification in the newspaper for 4 weeks since there were so many people. Sent some people a mailing statement. I: Whether the newspaper posting was correct service of process. R: No, although there are so many trustees that it may be unreasonable to expect the bank to find all the beneficiaries, the court must provide reasonable notice under the circumstances and provide actual notice to those who they are able. Under this doctrine, the addresses the bank did have, they should have mailed a summons to, and those who they didn’t, publication would have been sufficient. However, they didn’t mail any notices out and they did have some addresses, so the newspaper posting is inadequate. T: The court must provide reasonable notice under the circumstances for service of process and provide actual notice to those who they are able.

- What do you serve: summons and complaint- Summons: court order saying appear and defend the merits, or default on the claims.- Must serve the defendant within 120 days, or the court will dismiss the case for inaction.- 4(e) methods of service on Person: (1) hand deliver, (2) leave at D’s dwelling or usual

abode with someone of suitable age and discretion who resides there, (3) Deliver to an agent of D authorized by appointment or by law to receive SoP, (4) Follow the rules of the state where action is pending or in which SoP will be made

- 4(h) methods of service on Corp/Partnership/Association: (1) Delivering a copy of the summons and complain to an officer, managing agent, or a general agent of the entity, (2) Agent authorized by law/appointment to receive SoP. One specifically empowered to

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receive service. Many states have statutes authorize service to State Secretary of State. (3) Any process allowed under state rules

- 4(f) Serving individual D in another country: (1) As provided by int’l agreement (Hague Convention), (2) Legal methods in that country, (3) By personal service (unless illegal in that country), (4) By mail with signed receipt (unless illegal there), (5) by seeking court order for alternative means of service

Waiver- Rule(4)(d) Plaintiff would send the defendant notice of the action, 2 copies of the waiver

form, the complaint, and a prepaid envelope for returning the waiver. - Defendant has a duty to waive SoP, otherwise they will be charged with the SoP costs

and the court filings and attorneys fees to get the SoP costs.

Joinder Claims Rule 18

(a) A party asserting a claim, counterclaim, cross-claim, or third-party claim may join as independent or alternative claims, as many claims as it has against an opposing party

(b) A party may join two claims even though one of them is contingent (dependent) on the disposition of the other; but Ct. may grant relief only in accordance with the parties’ rights.

- 18(a) says that once a person is made a proper party, any claims may be brought in that court, related or unrelated. (must still satisfy SMJ)

- Can bring as many claims as you want - Creates efficiency in the courts, as the thought is probably “all parties are currently

present and represented.”- Although unrelated claims may be brought on the same suit, the judge may decide to

sever the claims, and separate them into different trials to avoid confusion for the jury and all parties.

Parties Rule 20

(a) Persons who may join or be joined (1) allows multiple plaintiffs to join the claim if they jointly seek relief for something that

arises out of a similar or same series of transactions and any question of law or common facts will arise in the claim.

(2) allows a plaintiff to bring multiple defendants if the events arise out of similar or the same series or transactions or occurrences as long as there is a common question of law or fact involving all defendants in the claim.

- Same test for joining plaintiffs as it is for joining defendants. - Plaintiffs do not have to sue together, they can sue separately if they find that more

strategically beneficial. - Still need SMJ and PJ

Holbein v. Heritage Mutual Insurance Co.

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F: 4 plaintiffs sued Heritage. They all interviewed for different positions at Heritage insurance and were hired then fired soon after. They sued regarding omissions during the interview process about the scope of the employment. Heritage sought to have the claims split up into 4 different suits because they were too unrelated.I: Whether the suit should be split into 4 different suits because all the claims arose out of different factual occurrences. R: No, Rule 20(a) states that plaintiffs can seek relief jointly if the complaint arises out of the same or similar series, transactions, or occurrences of events. All plaintiffs went through a similar interview process and had similar experiences so it makes sense for them to seek relief jointly. T: Rule 20(a) states that plaintiffs can seek relief jointly if the complaint arises out of the same or similar series, transactions, or occurrences of events

Counterclaims/CrossclaimsRule 13

(a) Compulsory Counterclaim (1) Defendant must raise any counterclaim against an opposing party if the claim:

(A)Arises out of the same transaction or occurrence as the plaintiff’s claim and,(B) Does not require adding another party which the court does not have jurisdiction

over(b) Permissive Counterclaim – a pleading may state a claim against an opposing party that

is not compulsory. (g) Crossclaim against a party: Pleading may state as a cross-claim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the subject of the original action or of a counterclaim, or if the claim relates to any property that is the subject of original action. Cross-claim may include a claim for impleader.

- Compulsory counterclaims promote efficiency and consistency of judgments. Doesn’t reflect well on the judicial system if contradictory judgments were to come out of 2 differenet courts.

- Counterclaims that arise out of the same transaction or occurrence are compulsory, if they are not raised, they are waived and the claim can never be collected on.

- Crossclaims are claims on the same side of the “v.” meaning plaintiff v. plaintiff or defendant v. defendant.

- All crossclaims are permissive, however, they can be raised in the same suit if they arise out of the same transaction or occurrence, for convenience.

Joinder by ImpleaderRule 14

(a) When a defending party may bring in a third-party (1) A defending party, acting like a third party plaintiff, may serve summons and

complaint on a non party who may be liable to the defendant for some or all of the damages incurred by the claim against them.

(2) Once 3rd party defendant has been added, they must asset any defenses they have, assert compulsory and permissive counterclaims, may assert defenses against the

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original plaintiff’s claims, may assert claims against original plaintiff that arise out of the same transaction or occurrence of the original suit against the defendant.

(3) Plaintiff may assert claims against the third party defendant anything that arises out of the same transaction or occurrence.

(5) 3rd party defendant may assert claims against an outside person (fourth party defendant).

- Impleader is used by a defendant to bring in an outside party when a defendant believes the party is liable for all or part of the damages that they may incur as a result of the claim against them.

- Under 12(a)(2)(c), the third party defendant is able to defend the claims against the defendant because by doing so, he may be able to absolve himself of the liability.

- Impleader is about passing on liability saying “If I am liable, then I am only/partly liable because of X party.” Not saying “it wasn’t me, it was him.”

Erkins v. Case Power & Equiptment Co.F: Erkins worked for a construction company. He died one day while riding in the bucket of a backhoe. His estate sued Case, the backhoe company on products liability. Case implead the construction company for negligence by failing to warn and hold safety meetings. I: Whether the impleader was permissible.R: Yes, impleader is about passing liability on to a party who may be responsible for part or all of the damages incurred as a result of the claims against them. Case is saying that under the tort law, the construction companies may be liable for part of the damages, which is possible because if the construction companies warned the workers, then the defendant may not have died. T: Impleader is about passing liability on to a party who may be responsible for part or all of the damages incurred as a result of the claims against them.

Supplemental Jurisdiction in the Federal Courts - The court must establish jurisdiction over the claim, they do not necessarily have SMJ

over the matter when a claim has been joined. - Issue of when a claim is brought on federal question, and then other state law claims are

added - Issue of when third party defendants are impleaded that destroys diversity

United Mine Workers v. GibbsF: 100 mine workers were laid off from a local mine. Gibbs was a mine contractor who was hired to open a new mine close by. The mine workers protested and made him lose his contract and prevented him from doing his job. Gibbs sued under US law as well as Tennessee common law in federal court. I: Whether the federal court had jurisdiction over the state claims from Gibbs’ pleading.R: Yes, the court found that the Article 3 § 2 grants jurisdiction over cases, not individual claims, and when other claims arise out of particular cases, they should be included in the case. When plaintiff brings a case under federal question, all other claims that “arise out of the same nucleus of operative fact” will also be allowed to be added. T: 2-part analysis to determine if the court has supplemental jurisdiction over a claim:

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- court will have power when the state law claim derives from the same “nucleus of operative fact”

- must then determine whether it makes sense for the court to exercise its jurisdiction. Court will use judgment when they exercise the power to hear the case.

o State claims predominate o Federal claims might get resolved early in the case o Hearing the claims together might confuse the jury o It would require the court to decide sensitive or novel issues of state law

- If the federal claim gets dismissed late in the case but a substantial amount of the litigation is complete, then the federal court can retain jurisdiction over the case

- 1367(a) codified Gibbs.

Owen v. Kroger F: Kroger (IA) sued OPPD (NE) in federal district court for diversity. In their answer, OPPD named Owen, an IA corp. as a 3rdP defendant. Kroger then amended her complaint to sue 3rdP Owen directly.I: Whether the court should have SMJ over the third party claim.R: No, plaintiff to defendant claims for supplemental jurisdiction are not permissible when it is a diversity claim. This claim destroyed complete diversity. T: In a diversity case, the plaintiff cannot raise claims against a non diverse defendant who has been brought in under supplemental jurisdiction.

- 1367(b) codified Owen

28 U.S.C. § 1367(a) Except as provided in (b) and (c), in any civil action where Fed. Ct. have SMJ, the district

courts shall have supplemental jurisdiction over all other claims that arise out of same nucleus of operative facts.

(b) In any case with Federal SMJ based on diversity, Fed Cts will not have supplemental jurisdiction over claims by original Ps against persons made parties under 14, 19, 20, or 24 (joined parties, cross-claims, 3rdP Ds when supplemental jurisdiction would destroy complete diversity jurisdiction

Discovery - The forced exchange and obtainment of any non-privileged matter that is relevant to

any party’s claim or defense.

Rule 26(b)(1) – General Scope of Discovery- Unless otherwise limited by the court, parties may obtain documents regarding any non

privileged matter that is relevant to any parties claim or defense. - As long as it is non-privileged and relevant to the case, then it is discoverable. - Party can use discovery rules to obtain document, medical records, testimony even if its

not admissible at trial as long as:o (1) not protected by one of the few evidentiary privilegeso (2) Relevant to any party’s claim or defense (subject matter of action) ando (3) It is reasonable that it could lead to admissible evidence

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- Privileged information: information that is conveyed between a confidential relationship that does not have to be turned over (i.e. priest, attorney, doctor)

- Court can use their discretion to disallow some discovery if it is unduly burdensome. - Asking and producing discovery material does not mean it is admissible in court.

Work Product: lawyer’s notes, documents, research, syntheses of discovery Hickman v. Taylor F: Boat sank, lawyer interviewed the witnesses, opposing attorney wanted the lawyer’s notes and recordings from the interview. I: Whether the interviews were work product.R: No, material prepared in anticipation of litigation is discoverable if the asking party shows that is has substantial need for the material to prepare its case and cannot, without undue hardship, obtain an equivalent of the work product. Here, the opposing attorney could have interviewed the witnesses himself and not been lazy. T: Work Product Doctrine: Material prepared in anticipation of litigation is discoverable if the asking party shows that is has substantial need for the material to prepare its case and cannot, without undue hardship, obtain an equivalent of the work product.

- Codified by 26(b)(3)

- Protects lawyers to add value to their work, if everything were discoverable, then an attorneys work may diminish.

- Work product can be prepared by an outside party, such as an investigator, private party, another member of the law firm, or even the client.

- In order to qualify for work product: earliest time it could be developed was “in anticipation of litigation”

Tools of Discovery

Automatic Disclosures- Parties must initially disclose documents and witnesses they plan to use in support of

their claims or defenses- Rule 26(a)

Interrogatories – Rule 33- Parties seeking information from each side, generally not very useful and are used for

more objective information like party names, addresses, stuff like that - Each party gets 25 questions, and the responding party gets 25 days to answer - Answers are signed by the party, objections and matters of law are signed by the attorney- Parties must conduct reasonable inquiries to get the answers to the questions - Can only send them to parties, not witnesses or any other 3rd party - Parties can get more than 25 questions by consent from the party or from the court - Can object if they are overly burdensome- Can open up your files and allow the opposing party to obtain the answers for

themselves, however, due to confidential matters, it may raise an issue.

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Requests for Documents – Rule 34- Producing Document, Electronic information, and tangible things, or entering onto land,

for inspect and Other purposes- A party or a non-party may be compelled to produce documents

Zubulake v. UBS WarburgF: Zubulake was suing for gender discrimination and a bunch of the information she wanted was kept on emails which were saved to UBS’s computer system which were very expensive to retrieve. It would cost UBS $175k to get the info. I: Whether or not UBS should be compelled to forfeit the information.R: No, however, the parties can cost shift the cost of discovery. The court found that the easily accessible information should be discovered but the costly discovery should not be found. Turns primarily on whether the information is kept in an accessible or inaccessible format. T: The expense is “undue” when it “outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.”

Depositions – Rule 30- Taking testimony from a party or witness under oath- Depositions are recorded with a stenographer and often times now are video recorded.- Very costly as they are charged by the page - If the party being deposed is not a party in the case, then they would serve the party with

a subpoena so appear. - Better than interogs because you can interact with the witness/party and have a discussion- Often times can be very helpful to lead to settlement - Deposition can stand in as a substitute as a witness testimony at trial - If an attorney objects to a question, the objection will be noted on the record, but even

inadmissible evidence is discoverable, and the party will have to answer and the admissibility of the information will be contested at a later date.

- The only exception is privileged information, do not have to answer if it is privileged

Requests for Admission – Rule 36- One party asking to certify a certain aspect of the case to narrow the legal issue and the

scope of the trial/dispute.

Medical Examinations – Rule 35- Medical examination under court order, to get a medical examination. - Sufficiently intrusive, so we require the court to order it and not lawyers to order them.- Can only order a party to get a medical examination, not a witness.

Discovery Abuse Sanctions – Rule 37- If the information is important, opponent will likely move for an order to compel

discovery under Rule 37- Under 37(1) party who is looking to get info from a non cooperating party must first

confer with the party, and see if it can be resolved without the court.

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- Under 37(a)(3), a party can move to get discovery compelled by the court, and if it is allowed then the noncomplying party will be forced to pay the moving party’s expenses for the motion under 37(a)(5)

- Most discovery issues are resolved outside of the court, the last thing a judge wants to do is deal with discovery disputes.

Summary Judgment- Rule 56 – - If all the facts that the judge needs to apply the law are undisputed, she can go ahead and

apply the law without waiting for trial.- Plaintiff can get a partial summary judgment on a particular issue/element if uncontested- Party must be able to prove all elements of the cause of action- Disputes about the law are not tried by fact finder, but decided by judge- Parties can agree/stipulate that facts are undisputed.- Motion for SJ previews in documentary form, the evidence that the parties would put on

at trial in order to determine if it would establish any dispute that requires trial.- Key Q: Is the state of the evidence such that, if the case were tried tomorrow, the non-

moving party would have fair chance of obtaining a verdict?- If movant shows that there is no genuine issue as to any material fact and the movant is

entitled to a judgment as a matter of law, burden then shifts to non-moving party to show that there is a dispute.

- Non-moving party can offer affidavits/other evidence setting out specific facts from which fact finder would find that non-moving party has a chance to win

- Purpose of SJ is to determine from the record whether there is a genuine dispute of material fact, if not, moving party is entitled to judgment as a matter of law

- Ct. determines applicable law, and there are no disputed facts, enters judgment- Material facts are important facts that would change the outcome - Affidavits and declarations usually not admissible at trial but are used for rule 56

Slaven v. Salem, MA App Ct. (1982) F: Man was in police custody and hung himself. MA Law stated the duty of care owed to a prisoner is to (1) protect them against unreasonable risk of physical harm, (2) give them first aid after it has reason to know they are injured. Plaintiff must prove in a case of negligence that Defendant knew, or had reason to know that man was going to hang himself. H/R: Defendant did no raise any factual dispute as to Defendants’s notice of suicide risk. Plaintiff did not prove that officers should have known that man was suicidal. Did not allege any facts that could content Defendant’s assertion of facts.

Control of the JuryDirected Verdict.: Judgments as a matter of law: no reasonable jury could find the facts necessary for P to win and that judgment should be entered

- Rule 50: judge has determined that party has not met burden of production for each element for the cause of action, and a reasonable jury couldn’t find for them

- “no sufficient basis where a jury could find for the plaintiff”

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- Legally Insufficient Evidence: evidence is such that, without weighing the credibility of the witnesses or considering the weight of the evidence, there can be one reasonable conclusion as to the verdict that jury could reach

- Ct. must draw all reasonable inferences in favor of non-moving party- May not make credibility determinations or weigh the evidence. Court looks at non-

moving party’s evidence and moving party’s unchallenged/unrebutted claims (including witnesses without an interest)

- Judges only do this when argument for doing so is strong and chance of reversal is low- Plaintiff fails to prove case after resting, Defendant moves for motion of judgment as a

matter of law and specifies the judgment sought and the law and facts that entitle the movant to the judgment

- After motion is made, non-moving party’s attorney can recall witnesses and fix omission, so case is more likely to be decided on the merits instead of a fuckup. Plaintiff on notice so they can fix the case

Judgment Notwithstanding VerdictRule 50 (b) Renewing Motion After Trial If Ct. doesn’t grant 50(a) motion, Ct. is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, Ct may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law

- Must enter a 50a motion in order to re-enter a 50b - 50 (a) and (b) have same sufficiency of the evidence standard- Even after jury reaches a verdict, party can move for “renewed” judgments as a matter of

law and find for D, even though jury has found for P- Renewed motion must be same issue you raised in 50a- Judges more likely to grant a 50b because if their decision is overturned, original jury

verdict is entered instead

PA RR Co. v. Chamberlain, SCOTUS (1933)F: Plaintiff killed in train crash. Plaintiff was assisting in breaking up links of train cars in the yard. Plaintiff alleged that other cars ridden by fellow employees negligently made contact with his link of cars, causing him to be thrown from the car and killed. Plaintiff’s only witness was an individual who heard a crash but did not see an accident. Defendant didn’t provide any logical; alternative, but the workers on the other link testified that no accident occurred. I: Did Plaintiff produce enough evidence to allow a reasonable jury to find the facts necessary to find in favor of Plaintiff?R: No. There was real evidence that disproved the one parties inference of evidence. There was no way that a reasonable jury could find for the plaintiff so to prevent an injustice, the judge took it from the jury.

The Effect of the Judgment Res Judicata and Final Judgment on the Merits

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- Claim preclusion/res judicata: prevents parties from re-litigating claims that they fully litigated in previous case

- Claim preclusion promotes efficiency, fairness, and improves perception of the justice system

- Claim preclusion doesn’t apply to retrials ordered for issues in the initial trial- CP/RJ only applies when new parties files a new, second case against each other- 3 elements must be satisfied before a claim will be barred under CP

o (1) claim must be same as the claim that was litigated in a previous caseo (2) Previous claim must have resulted in valid, final judgment on the meritso (3) Parties involved in previous claim must be same parties in current claim

- 2 tests for determining whether cause of action (claim) (1) are the same for CP/RJo Same evidence test: evidence needed to sustain the second suit would have

sustained the first, or if the same facts were essential to maintain both actions (narrow approach)

o Transaction test: (Majority) separate claims are considered the same cause of action if they arise from a single group of operative facts, regardless of whether they assert different theories of relief. (similar to “same set of operational facts)

- Transaction test: same conduct, same defendant, then same transaction even if years apart- Can’t bring new suit if law later changes, no second chance. - Defendants don’t have to make cross-claims or counterclaims in the first suit usually,

depends it counterclaims are compulsory or not.

River Park Inc. v. City of High Park, IL (1998)F: Spatz owned land in Highland Park. Spatz claims city intentionally denied bids to develop area. Spatz foreclosed on the land, City was able to buy land back cheap. Spatz filed in federal court, which was dismissed on a 12b6. Spatz filed new complaint in state court, lower court dismissed for RJ.H/R: Spatz’s state claim barred by RJ, under the transaction test it was the same claim, between the same parties, which was ruled on in federal court on the merits. Dismissal with prejudice means it is barred by RJ.

- Valid, final judgment on the merits (2)o Rule 41: Dismissal for any reason other than PJ, SMJ, Venue, or Joinder operates

as a ruling on the merits.o Validity: Claim preclusion doesn’t apply to cases where dismissal resulted from

SMJ, PJ, Venue or improper notices.o Yet if D waives these above objections, and the claim is litigated and settles, then

this is a valid judgment. o Finality : If P files in FL and MA, court will stay the proceedings in one state and

wait until there is a final judgment before dismissing for RJo Judgment is final when trial court enters judgment, even if a post-trial motion

comingo Court will await the completion of appeal in original case before determining

whether claim preclusion applies. o On the Merits : jury verdict, SJ, JMOL, default judgments are all “on the merits”o Dismissals due SMJ, PJ, Venue not on merits

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o If P files in CA, where SoL has run and gets tossed, cannot bring it to MD where SoL has not run. Must do it right the first time

Issue Preclusion/Collateral Estoppel- As long as a party had a fair and full opportunity to litigate a legal issue in an earlier suit,

they cannot re-litigate the same legal issue again.- Want to ensure that each party had their day in court. - Need to know what was decided in first case. Issue must have had evidence presented and

actually decided- Decisions by judges given same weight as jury decisions for CE- Mutual means same parties. Non-mutual means one of the parties is different- Party can only be collaterally estopped if:

o (a) issue in the two lawsuits is the sameo (b) issue was actually litigated in first suito (c) litigated with full and fair opportunity, so that there is substantial confidence

in the outcome o (d) Issue was actually decided and o (e) it was essential to the judgment in the first suit , nor a gratuitous or un-

appealable finding

Cambria v. Jeffery, MA (1940)F: P1 sued D1 for negligence in initial suit. First court found that D1 was not liable due to contributory negligence to P1. D1 then sued P1 for negligence which caused harm to his car. Jury found for D1, yet judge entered verdict for P1 citing CEH/R: D1’s claim not barred by issue preclusion. Original Ct. only settled that P1 was negligent and therefore couldn’t recover. Nothing regarding D’s negligence was settled. Finding of negligence by D1 not legally essential to the outcome. Gratuitous finding without consequences. D1 had no opportunity to appeal, so the issue must be re-litigated.

- If you win the case in spite of losing on an issue (and thus couldn’t appeal since you won), you are not barred from re-litigation due to claim preclusion. Need an opportunity to appeal.

Want to give each party their fair shot to litigate their claim.

Non-Mutual Collateral Estoppel

Issue preclusion may also arise in cases that involve new parties In any lawsuit where defendant, because of the mutuality principle, is forced to present

complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, defendant can stop them by raising collateral estoppel (defensive)

State courts split on whether allowing non-mutual In other cases, Plaintiff has attempted to use issue preclusion to establish facts to prove its

claim (offensive)Parklane Hosiery Co. v. Shore, US (1979) Facts. Prior to this suit, SEC filed suit against the same defendant, alleging that the proxy statement that had been filed was materially false and misleading in essentially the same fashion

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as was alleged by plaintiff in the present case. As a result, plaintiff in this matter moved for partial summary judgment, alleging that the defendant should be collaterally estopped from relitigating the issues that had been resolved against it in the first action. The district court denied the motion but the court of appeals reversed, finding that the defendant was collaterally estopped from obtaining a jury trial on the same issues of fact. I: Whether the defendant, who has lost issues of fact to it in an similar action, may be collaterally estopped from re-litigating the same issues before a jury in a subsequent legal action brought against it by a new party?R:. Yes, none of the circumstances that might justify reluctance to allow the offensive use of collateral estoppel is present. As a result, the judgment of the court of appeals is affirmed. T: Non-mutual offensive collateral estoppel – Plaintiffs who were not parties to the prior action may assert issue preclusion offensively against defendants who was party to prior action, unless the court finds that doing so is unfair on the following grounds:

(1) Plaintiff (asserting issue preclusion) could easily have joined the previous action;

(2) Defendant (being precluded from litigating an issue) lacked incentives to litigate the issue vigorously in the prior litigation;

(3) There are multiple previous suits with inconsistent resolutions on the issue

Non-mutual Defensive Collateral Estoppel – Defendants who were not parties to the prior action may assert issue preclusion defensively against plaintiff who did previously litigated an issue.

Rule: It is up to the judge. If she is comfortable with everything that happened in the first case, and she is happy with everything that happened procedurally, then she can borrow the holding for the application of collateral estoppel.

- Non-mutual case since P was not a party to the first action - Before determining whether to allow non-mutual issue preclusion, court must have

confidence that the issue was fairly determined in the prior action. - Unfair to preclude a party if they did not have an adequate incentive to litigate the issue

aggressively in the first suit- If there are inconsistent rulings in previous suits on the issue, Court unlikely to allow it- May also be denied if P waited for another P to try to litigate a common issue, hoping to

ride coattails. Want to avoid P shopping.

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