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Professor StaszewskiSection 3

Civil ProcedureIntroduction and Procedural Overview

1) Where Lawsuits Can Be Brought ( decides where to bring the lawsuit)(Court enters into default judgment if doesn’t appear in court)

2) How Litigation is Conducted:a) ’s complaintb) ’s answerc) DiscoveryLawyers investigate and find factsd) Summary Judgment (typically )If there is a fault or not enough evidencee) Trial/Appealf) Rules of “Preclusion”If a similar case is filed, issues from 1st lawsuit may be brought or

2nd case may not be heard if ruling of 1st case is insufficient g) Joinder of Claims & Parties

Federal Rules:1) Only apply to federal cases, not state courts (state courts are courts of general jurisdiction) 2) Adopted by Supreme Court of the U.S. pursuant to committee process3) Rules Enabling Act § 2071: Congress authorized Supreme Court to employ FRCP

Rule 1: Rules promote justice, speed and efficiency

Personal JurisdictionIf Courts Can Enter An Binding Judgment Against a A. The Origins of Personal Jurisdiction

Pennoyer v. Neff (1877): There were 2 lawsuits where Mitchell sued Neff in Oregon state court for unpaid legal fees. Neff was given constructive service of process (instead of personal service or summons) in newspaper publication. Neff did not appear in court which rendered default judgment for Mitchell. After the default judgment, Neff acquired 300 acres in OR and Mitchell had sheriff seize the land through a Sheriff’s Deed, get the money for the land from the sheriff and sell Pennoyer the land with the sheriff’s deed. Neff then sued Pennoyer in Federal Circuit Court of Appeals due to diversity jurisdiction. Neff wanted to recover the possession of property. The Court of Appeals stated default judgment in first case was not valid because OR state court lacked personal jurisdiction over Neff. The Oregon State Court lacked personal jurisdiction to enter an enforceable judgment against Neff because he was neither personally served with process in the state (in personam jurisdiction) nor was his property attached prior to the intuition of the lawsuit (in rem jurisdiction). This case lacked in personam jurisdiction because there was not personal service of process within the forum state (OR) and it lacked in rem jurisdiction because Neff didn’t own the property in OR yet, so it couldn’t have been attached. Thus, OR State Court lacked personal jurisdiction over Neff and the default judgment rendered in the first case was invalid.

1) In personam jurisdiction: jurisdiction over the person2) In rem jurisdiction: jurisdiction over property

“True” In Rem: When lawsuit is about the property Quasi In Rem: When court uses property for the basis of jurisdiction, but not the

subject of the case. Constitutional Provisions: 1) Article 4, Section I/Full Faith & Credit Clause: Court recognizes implied limitation on Full

Faith & Credit: “only when the court rendering the judgment had jurisdiction of the parties and of the subject matter.” States respect judgment of other states/Federal courts must respect state judgements.

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2) Fourteenth Amendment/Due Process Clause: “Since the adoption of the 14th Amendment to the Federal Constitution, the validity of such judgment may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has not jurisdiction do not constitute due process of law.”

Power Theory of Jurisdiction: Under the rules of Pennoyer, courts can exercise judgments over people or property within their borders and not people or property outside of their borders. Importance of Pennoyer: Articulates that fact that courts must have PJ over in order to render an enforceable judgement (in personam and in rem jurisdiction) *Neff could have consented to litigation in a different state but, because he didn’t here, so the judgment was not valid

How to Challenge Personal Jurisdiction:1. Accept default judgment & collateral attack (waives defenses on merits)2. Appear & challenge personal jurisdiction/“special appearance”3. Motion to dismiss under Rule 12(b)(2) 4. Answer, raised personal jurisdiction as affirmative defense promptly more to dismiss for lack of

personal jurisdiction (you have to assert defense in the first case).

B. The Modern Constitutional Formulation of Power 1. Redefining Constitutional Power International Shoe Co. v. Washington (1945): International Shoe company was subject to

specific in personam jurisdiction in Washington because it had minimum contacts with the forum state that were directly related to the claim, and was provided with a reasonable form of notice. Supreme Court changes the rule to 1) minimum contacts 2) related to the claim with 3) reasonable notice. Due process requires only that have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. (1. Burden on 2. ’s interest 3. Interests of Forum State 4. Federalism/International Comity)The Supreme Court Recognizes Two Categories of in personam jurisdiction:a. General Jurisdiction when contacts are “so substantial and of such a nature as to justify

suit against [] on causes of action arising from dealings entirely distinct from those activities.” “continuous and systematic” “At Home” in the Forum State

b. Specific Jurisdiction 1) Minimum contacts?2) Related to the claim?3) Reasonable form of notice? (Not necessarily personal service of process as in

Pennoyer) Importance of International Shoe: It replaces physical presence with minimum contacts; it added general jurisdiction and specific jurisdiction to in personam jurisdiction; and it didn’t alter in rem jurisdiction.

McGee v. International Life Insurance Co.: *APPLIED INT’L SHOE STANDARD CA resident who received a letter to continue life insurance policy from TX office. When insured die, insurance wouldn’t pay life insurance police because he committed suicide. CA beneficiary sued TX insurance company. The court said the Due Process Clause did not preclude a CA court from entering a binding judgment on a TX insurance company because 1) the suit was based on a contract that had a substantial connection with the state and 2) CA has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims and 3) there was no contention that the did not have adequate notice of the suit or sufficient time to defend itself. (This case satisfied all elements of specific in personam jurisdiction)

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Hanson v. Denckla: *APPLIED INT’L SHOE STANDARD Donner lived in PA and bought a DE trust and moved to FL where she later died. The trust divided assets equally among her 3 daughters. Donner wrote one of the daughters out of the will. The court ruled that the trust could not be held liable in FL court. The court said that although Donner received trust income and carried on some trust administration in FL, the trust company did not have minimum contacts with FL. It is essential that in each case that there be some act by which the purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and privileges of its laws.

2. “Adsorbing” In Rem Jurisdiction Shaffer v. Heitner: A claim was brought by that officer and directors of the company

committed a breach of fiduciary duties. The s received notice by publication and by mail. The lawsuit was brought in state court in DE where there was an order of sequestration which attached property owned by some s in DE and provided notice of the lawsuit. The court said that a DE statute that allowed a court of that State to take jurisdiction of a lawsuit by sequestering any property of the that happened to be located in DE violated the Due Process Clause of the 14th Amendment. Quasi in rem jurisdiction was declared unconstitutional. All assertions of state court jurisdiction must be evaluated according the International Shoe standard, and s lacked minimum contacts with DE in this case because their property had nothing to do with the case (it was not related to the claim; however, if it was . . . then there would be minimum contacts with the forum state).

3. Specific Jurisdiction: The Early Stages of the Modern Era World-Wide Volkswagen Corp. v. Woodson: The Robinsons bought an Audi in NY and while

driving through OK, the car burst into flames. s attempted to sue multiple s including Audi of Germany, VW of America of Germany & MI, WWVW Regional Distributor of NY and Seaway Dealer of NY in OK. WWVW and Seaway challenged personal jurisdiction in OK. The Court stated a New York car dealership and regional distributor were not subject to personal jurisdiction in OK because they had no “contacts, ties or relations” with the state. “Foreseeability” alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause. Rather personal jurisdiction exists if defendant, “purposefully avails itself of the privilege of conducting activities in the forum state” OR “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.”Minimum Contact Tests Provides 1) Fairness to and 2) Federalism

Asahi Metal Industry Co. v. Superior Court: A sudden loss of air caused one of the tires in the rear of a motorcycle to explode and injure . Asahi claimed no minimum contacts in CA and CA state court said yes. The Supreme Court held that Asahi was not subject to personal jurisdiction in CA. New Test:A) Minimum Contacts?

Pluralitypurposeful action by the directed towards the forum stateConcurrenceinjecting goods into the stream of commerce without foreseeable destination/exercise of personal jurisdiction over Asahi in this case would violate traditional notions of “fair play and substantial justice” Stevens, J., Concurringit depends on volume, value and hazardous character of components

B) Fair Play and Substantial Justice (i.e. reasonableness)?(1) Burden on (2) Interests of Forum State(3) Interests of (4) Interests of Federalism (& Int’l Comity)

8 Justices (all except Scalia who simply states that there is no minimum contacts and that

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traditional notions of fair play and substantial justice don’t matter): Personal jurisdiction in this case would violate “traditional notions of fair play and substantial justice” because the exercise of jurisdiction would be unreasonable, even if minimum contacts existed (Part IIB).

Burger King Case: Owners of Burger King in MI were subject to personal jurisdiction in FL. knowingly entered into a longtime contract & franchise agreement in FL, they had training in FL and contract under FL; so personal jurisdiction was established in FL. 1. Court held that individual s were subject to personal jurisdiction in home state of

corporate . 2. Potentially good precedent for corporate to sue individual debtor in different state. 3. Court says about relationship between minimum contacts & FP&SJ. Once minimum

contacts are established, then court may look at FP&SJ. had thin contacts with FL, but there was FP&SJ. When minimum contacts are a close call, the court will use FP&SJ.

4. Burger King was litigated in federal district court, not FL state court (although it made no difference).

Federal Rule 4K (Personal Jurisdiction Rules): 1. Due Process Clause of 5th Amendment (Federal) gives federal courts more leeway2. Federal courts can exercise personal jurisdiction over any who has minimum contacts with

U.S. and personal jurisdiction is authorized by the statute. 3. Federal courts broader jurisdiction idea

Federal Rule 4K 1A: When serves , if they are subject to personal jurisdiction in state court, then they are also subject to personal jurisdiction in federal court (& vice versa). Federal Rule 4K 2: Foreign in cases that arise under federal law when not specific state.

4. Specific Jurisdiction: The Cutting Edge J. McIntyre Machinery, Ltd. v. Nicastro (2011): Nicastro was injured by a machine and sued J.

McIntyre (an English manufacturer) in NJ State Court. McIntyre used an American national distributor in OH. NJ said they had personal jurisdiction over J. McIntyre because of the stream of commerce that established minimum contacts. The Supreme Court said New Jersey courts could not exercise personal jurisdiction over an English manufacturer that neither marketed goods in the state nor shipped them there. Plurality (Kennedy, J.) (4 justices): Defendant did not have purposeful action that was directed at the forum state because they “did not intentionally target NJ with its activities”A) Due process protects petitioner’s right to be subject only to lawful authority (as determined

by “traditional practice”). At no time did petitioner engage in any activities in NJ that reveal an intent to invoke or benefit from the protections of its laws.

B) Criticizes Brennan’s Asahi opinion and the dissent on the grounds that there are “inconsistent with the premises of lawful judicial power.” **** “Freeform notions of fundamental fairness divorced from traditional practice cannot transform a judgment rendered in the absence of authority into law.”

Due Process=Lawful Power (stemming from traditional practice); Not “Fundamental Fairness”Breyer, J. Concurring (2 justices): failed to meet his burden to demonstrate that it was constitutionally proper to exercise jurisdiction over J. McIntyre based on the Court’s previous holdings. Claims that “this is an unsuitable vehicle for making broad pronouncement that refashion basic jurisdictional rules,” because this case does not implicate “modern concerns,” such as those raised by the Internet. (Based on Int’l Shoe, WW Volkswagen, Hansen, etc.) Ginsburg, J. Dissenting (3 justices): was subject to personal jurisdiction in NJ because it put its product in the stream of commerce, knowing that it could be sold there (irrespective of its use of national distributor). Due Process=Fairness and Reason/“Fundamental Fairness”; Not Sovereign Power (or Tradition)

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Abdouch v. Lopez (2013): filed suit over book with personal inscription being sold on ’s website. was a resident of NE. s were not subject to personal jurisdiction in NE because their internet-related business activities in the state were not related to ’s claim. Moreover, the advertisement at issue was directed at the entire world, rather than aimed specifically at Nebraska, and “Lopez did not know that Abdouch was a resident of NE.” Tests Applied (Although Neither Worked to Establish Personal Jurisdiction):

I. Sliding Scale Test (On a Scale) 1. Posting Information=No Minimum Contacts2. Interactive Websites=Depends on Scope and Nature of Activity3. Conducting Business Over Internet in Forum=Minimum Contacts

(The above test doesn’t work in this case because ’s website was interactive and not specifically directed at NE.)

II. Calder Effects Test (Example: Throwing Baseball from MI to OH over state lines)1. “[A] defendant’s tortious acts can serve as a source of personal jurisdiction (minimum

contacts) only where the plaintiff makes a prima facie showing that the defendant’s acts (1) were intentional, (2) were uniquely or expressly aimed at the forum state, and (3) caused harm, the brunt of which was sufferedand which the defendant knew was likely to be suffered[in the forum state].” *narrowly construed(The above test didn’t work in this case because the business was aimed at the entire world, and didn’t know that was alive/citizen of NE.) (The Calder Effects test originated from a U.S. Supreme Court case called Calder v. Jones where two FL residents participated in the publication of an article about a CA resident who brought a libel action in CA against the FL residents. Both defendants asserted that as FL residents, they were not subject to the jurisdiction of the California court in which the libel action was filed. SCOTUS rejected the defendants’ argument and noted that the defendants were not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at CA. They wrote an article that they knew would have potentially devastating impact upon respondent and they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must “reasonably expect to be hauled into court there” to answer for the truth of the statements made in their article. THERE HAS TO BE A LINK TO THE FORUM STATE!)

Walden v. Fiore: had gambling winning seized while boarding a plane in Atlanta to fly to NV. ’s knowledge that was resident of forum state was no enough to satisfy Calder Effects Test and, thus, was not subject to personal jurisdiction. There must be knowledge to aim action at the forum state. “In Fiore, by contrast, the only link to NV was the ’s knowledge that NV was one of the states in which resided not enough .”

5. General Jurisdiction/“At Home” Goodyear Dunlop Tires Operations, S.A. v. Brown (2011): An accident occurred in Paris

France when a Goodyear Tire exploded and killed two boys on a soccer trip. sued in State Court in NC which said that were subject to general jurisdiction in NC because they put product into the stream of commerce and some of their products were sold in NC. The Supreme Court said European subsidiaries of Goodyear USA were not subject to general jurisdiction because they “were in no sense at home in NC.” European subsidiaries of Goodyear USA aren’t incorporated in NC and don’t do their main business there. (There is also no specific personal jurisdiction because it was not related to the claim.)

Daimler A.G. v. Bauman (2014): Argentinian citizens sued Daimler (Germany) on agency allegations, for atrocities committed in Argentina, in Northern District Court of CA. District Court granted motion for lack of personal jurisdiction, but Ninth Circuit Court reversed and said Daimler was subject to personal jurisdiction because they were liable for actions of MB

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Argentina & MBUSA (Agency Theory). The Supreme Court held that Daimler was not subject to general jurisdiction because it was in no sense at home in CA and their connection within the forum state are not so continuous and systematic that they would be considered “at home” in the forum state. The exercise of personal jurisdiction over Daimler in CA would also be unreasonable based on “the risks to international comity” that the Ninth Circuit’s “expansive view of general jurisdiction posed.” This reasoning turns, in part, on “reasonableness” of personal jurisdiction.

Burnham v. Superior Court: Mr. and Mrs. Burnham were getting a divorce. They were married in WV and lived in NJ. Mrs. Burnham moved to CA and filed for divorce in CA under “irreconcilable differences.” While Mr. Burnham was visiting and doing business in CA, Mrs. Burnham served Mr. Burnham with process. Mr. Burnham filed a motion to dismiss for lack of personal jurisdiction. He claimed CA lacked minimum contacts under Int’l Shoe theory. The Supreme Court said CA courts may exercise personal jurisdiction over a non-resident who was personally served with process while temporarily in the stage; which is known as Tag Jurisdiction. Part II: 4 Justices (Scalia, joined by Rehnquist, Kennedy and White):Bright Line Rule: Among the most firmly established principles of personal jurisdiction in American tradition (and one commonly accepted at the time of the 14th Amendment was adopted) is the courts of a state have jurisdiction over nonresidents who are physically present in the state. Just because Int’l Shoe opinion exists, doesn’t mean that they cannot rely on the 1868 (traditional) view that states have personal jurisdiction over persons within their borders. Rules of Personal Jurisdiction According to Scalia: 1. Personal service of process within the state (Pennoyer)2. Property ownership within state (related to the claim) (Pennoyer and Shaffer)3. Minimum contacts & related to the claim (Int’l Shoe) Part III: 3 Justices (Scalia, joined by Rehnquist and Kennedy): Criticizes “[t]he subjectivity, and hence, inadequacy of Justice Brennan’s approach.” Brennan, J . Concurring (joined by Rehnquist and Kennedy) :Case by Case Inquiry: The Due Process Clause generally permits a state court to exercise jurisdiction over if he is served with process while voluntarily present in the forum state. Nonetheless, it is necessary to “undertake an independent inquiry into the fairness of the prevailing in-state service rule.” The critical insight of Shaffer is that all rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process.Concurs in judgment because “[i]n this case, it is undisputed that petitioner was served with process while voluntarily and knowingly in the State of California.” Stevens, J., Concurring: Tradition + Fairness + Common Sense = Easy Case

6. The Latest Word, or Back to the Future? Bristol-Myers Squibb v. Superior Court (2017): A ton of s (both CA resident and non-CA

residents) filed suit against BMS (incorporated in DE/NY) for products liability based upon their drug “Plavix” which caused injury. The suit was filed in CA State Court. BMS argued that they were not subject to personal jurisdiction because of the non-resident s. Trial court said they were subject to general jurisdiction (Daimler was decided in the meantime, which negated this). CA Supreme Court said they were subject to specific jurisdiction because they had minimum contacts related the claim and they applied the Sliding Scale Test. The Supreme Court held that CA courts could not exercise personal jurisdiction over BMS on the products liability claims of the nonresident s. BMS’s activities in CA were not sufficiently related to the claims. “What is neededand what is missing hereis connection with the forum on the specific claims at issue.” Because of the fact that non-resident s didn’t buy, take, or were injured by drug in CA, then CA lacks personal jurisdiction over BMS; however, there is personal jurisdiction for the CA residents. Since the claims of the non-resident s did not concern people, property, or activities within CA, CA cannot exercise specific personal jurisdiction.

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(Sotomayor, J., dissenting): “[T]here is nothing unfair about subjecting a massive corporation to suit in a state for a nationwide course of conduct that injures both forum residents and nonresidents alike . . .” Sotomayor claims there are 1) minimum contacts 2) related to the claim 3) which satisfies traditional notions of fair place and substantial justice/reasonableness because there was no burden on , there were interests of s, interests of the forum states, and no issue with federalism/int’l comity (although the majority has an issue with federalism).

C. Consent as a Substitute for Power1. Real ( says yes)2. Statutory (State passes law that has provision for )3. Contract (Contracts between states)4. Implied Carnival Cruise Lines, Inc. v. Shute (1991): Couple from WA went on cruise and wife fell and

wanted to sue in WA even though there was a forum selection clause on the ticket that stated that all lawsuits had to be brought in FL. “Fundamental fairness” did not preclude the enforcement of a forum-selection clause contained in tickets issued by a cruise line to its passengers when there was no bad faith, fraud, or overreaching (i.e. Florida was a sensible place to conduct the litigation) and plaintiffs “essentially conceded” that they had notice of the provision. (Forum-selection clauses are generally enforceable, but it is up to court’s discretion in order to determine fundamental fairness).

Atlantic Marine Construction Co v. U.S. District Court: Only under extraordinary circumstances, unrelated to convenience of the parties, should such a motion be denied (forum selection clauses)

D. The Constitutional Requirement of Notice: Due Process Clause Requires a Reasonable Form of Notice Mullane v. Central Hanover Bank & Trust Co. (1950): An elementary and fundamental

requirement of due process in any proceeding which is to be accorded finality is “notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them on opportunity to present their objections.” Notice has to be reasonable under the circumstances!

Rule 4 Rule 4(e)Serving Individual in United States (Serve Pursuant to State Law) Rule 4(f)Serving Individual in a Foreign Country Rule 4(h)Serving Corporation, Partnership & Association Rule 4k(1)(a)If you personally serve with process, that establishes personal jurisdiction if

they would also be subject to personal jurisdiction in state court Rule 4k(1)(b)Establishes jurisdiction over third parties who live within 100 miles of

courthouse Rule 4k(1)(c)Jurisdiction authorized by federal statute Rule 4k(2)Cases involving foreign arising under federal law when foreign has minimum

contacts with the United States, but no specific state

Exercising Jurisdiction Short of the Constitutional Limits:a) Long-Arm Statutes: Jurisdiction over a person must be authorized by statute or rule and if it

comports with due process. i. Tag Jurisdiction (personally serve with process) ii. All Constitutional Jurisdictioniii. Less Jurisdiction than the Constitution Allows

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iv. Statutory Evaluation in Order to Exercise Jurisdiction Does the applicable statute authorize the Court to exercise personal jurisdiction

over the ? If not, no personal jurisdiction If so, is the exercise of personal jurisdiction constitutionally permissible? Does

it comport with Due Process?b) Venue (statutes): Locates jurisdiction to a district in a state

i. A judicial district where any livesii. A judicial district where the events happenediii. Any judicial district where is subject to personal jurisdictioniv. Corporations can have venue anywhere they are present (Failure to comply with applicable statute and pick wrong venue, could motion to dismiss for improper venue under Rule 12(b)(3)).

c) Transfer (statutes): Courts can transfer cases from one district to another within the same legal system for the convenience of the parties, for the convenience of witnesses, and in the interest of justice (Ex: WA Federal District Court can move to FL Federal District Court) (or in-state transfer)

d) forum non conveniens: Courts may dismiss a case to be litigated in a more convenient or appropriate forum (Ex: Transfer from MI to OH) (Typically involve foreign s or issue occurred abroad).

Subject Matter JurisdictionFederal courts are courts of limited jurisdiction, meaning they only have legal authority to hear particular/certain types of cases (e.g., federal questions & diversity)

Hawkins v. Masters Farms, Inc.: Masters (KS) was driving tractor trailer that collided with Creal and killed him. The court decided that the case must be dismissed from federal court because there was no subject matter jurisdiction because there was not diversity jurisdiction because Creal was domiciled (physical presence + intent to remain) in KS even though he had very recently moved from KS from MO. Decedent had not enough established physical presence in the State of Kansas, but he had also displayed an intent to remain there. (Domicile Theory)

A. Federal Question Jurisdiction§1331: The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Louisville & Nashville Railroad v. Mottley: “Well-Pleaded Complaint” Rule s injured

while using railroad and sued them but were given free pass to ride for life as a settlement so they attempted to sue for breach of k. A federal statute then outlawed the use of such passes and s sued. A suit arising under the Constitution and law of the United States for purposes of 28 U.S.C. Section 1331 only when ’s well-pleaded complaint is based upon federal law. Here, there is no federal subject matter jurisdiction because issues of federal law would likely arise only as an affirmative defense and in addressing ’s reply to that defense, not in ’s original claim (which was for breach of contract under state law). Federal district court couldn’t’ adjudicate based on Article III and Section 1331. Thus, right or consent of doesn’t work here. ’s claim arose under state law, so there was so federal question subject matter jurisdiction.

If a personal jurisdiction defense is not raised, then it is waived Federal subject matter jurisdiction defense cannot be waived

B. Diversity Jurisdiction §1332 Redner v. Sanders 28 USC §1332: was an American citizen residing in France attempting to

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sue two NY residents. The federal district court dismissed the case against New York s for lack of subject matter jurisdiction because there was no diversity of citizenship. The was neither a citizen of France (which would have authorized jurisdiction under §1332(a)(2) “citizens of a state & citizens or subject of a foreign State”) nor a citizen of California (which would have established diversity jurisdiction under §1332(a)(1) “citizens of different states”).

National Citizenship=Actually objective standard/Need documented status State Citizenship=Fictional standard usually based on domicile test Hertz Corp v. Friend 28 USC §1332: s from CA were attempting to sue Hertz and made a

motion to remand to state court under no diversity jurisdiction because Hertz’s “principal place of business” was CA. Hertz motioned to remove to Federal Court and says that they weren’t truly residents of CA. The phrase “principal place of business” in 28 U.S.C. §1332 refers to where a corporation’s high-level officers direct, control, and coordinate the corporation’s activities. “Nerve Center”

Hypo : New York Rangers (NY) v. New Jersey Devils (“Nerve Center” in NY) sue in State Court in NY. Move to Federal Court? NO! No Federal Subject Matter Jurisdiction because no Diversity Jurisdiction. Wont’s the NJ Devils get discriminated against in NY? Probably, but his is why it isn’t a perfect situation; the bright-line rule is better.

C. Supplemental Jurisdiction §1367 Example : Employee sues employer for violating FLSA (Federal Question Jurisdiction) &

Breach of K (State Law Issue). Article III of the U.S. Constitution says that federal courts may exercise jurisdiction over a state law claim if it is part of the same case or controversy. Does it arise out of the same common nucleus of operative fact?

§1367(a): “common nucleus of operative fact” §1367(b): Limits the scope of supplemental jurisdiction in diversity cases. You cannot use

supplemental jurisdiction to get around the rules of complete diversity. (If a plaintiff wants to add a claim that arises out of the same common nucleus of operative facts, but destroys complete diversity, then you cannot apply supplemental jurisdiction and thus subject matter jurisdiction is destroyed)

§1367(c)(1): The claim cannot raise a “novel or complex issue of state law” §1367(c)(2): The claim cannot substantially predominate over the claim or claims over

which the federal district court has original jurisdiction §1367(c)(3): If the federal question is dismissed, then state law claim may be dismissed §1367(c)(4): In exceptional circumstances, there are other compelling reasons for declining

jurisdiction §1367(d): Period of Limitations

“Evil Bank” Case #1 In re Ameriquest Mortgage Co.: Trevino sued Ameriquest under the Federal Truth in Lending Act in Federal District Court in IL and they wanted to add two counts of fraud under state law. The district court denied ’s motion to dismiss ’s state law claims for lack of supplemental jurisdiction because the state and federal claims were connected by common and operative facts (they were, in fact, inextricably intertwined), and there was no compelling reason for the court to decline to exercise supplemental jurisdiction. (TILA & Fraud)

“Evil Bank” Case #2 Szendrey-Ramos v. First Bancorp: Szendrey-Ramos sued First Bancorp under Title VII CRA of 1964 and added three state law claims of wrongful discharge, defamation, and tortious interference. The district court granted ’s motion to dismiss ’s state law claims for lack of supplemental jurisdiction because the Puerto Rico law claims predominated over ’s federal claim under Title VII and there were novel and complex issues of Puerto Rico law. This case violated §1367(c)(1) because is raising issue against its own client & (2) because the state claims substantially predominate over the federal question because it seems like more of a Puerto Rican law case rather than a

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Title VII discrimination case.

D. Removal to Federal Court §1441 §1446 §1447 §1441: Can Remove a Case from State Court to Federal District Court §1441(b): Removal Based Upon Diversity of Citizenship

o (OH) v. (MI) brought in State Court in MI= *Cannot be removed to federal court if any is citizen of state where action is brought (Rule 1441(b)(2))

§1441(c): Joinder of Federal Law Claims and State Law Claims: Federal question & state law claims within supplemental jurisdiction can be removed to federal court, but all unrelated state claims are thrown out

§1446: seeking to remove any civil action must file a notice for removal within 30 days of receiving the complaint (b). If case is not initially removable the can remove that case within 30 days after when it becomes removeable (Amended Complaint Received).

§1446(c)(1): A diversity case may not be removed based on diversity after 1 year unless the court finds acted in bad faith

§1446(c)(2) & (3): Whatever asked for in complaint, that is the amount in controversy. If is seeking injunctive relief (or jurisdiction doesn’t allow amount of damages on complaint) then when filing removal can state amount in controversy.

§1446(3)(b): If notice of removal is over a year and doesn’t put amount in controversy to prevent removal that finding will be in bad faith and can be removed.

§1446(d): Notice to adverse parties & state court1. filed “notice of removal” in federal court 2. give written notice to all adverse parties & clerk of court

§1447(c): If files a notice of removal, has 30 days to file a motion to remand for lack of subject matter jurisdiction

§1447(d): Order remanding to state court is not reviewable on appeal, it is final Caterpillar, Inc. v. Lewis (Ginsburg, J.): Caterpillar filed notice of removal in federal

district court on day 364 of limited 365. District court denied ’s motion to remand (wrongfully). A district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication of federal jurisdictional requirements are met at the time judgement is entered. Once a diversity case has been tried in federal court, with rules of decision supplied by state law under the Erie doctrine, considerations of finality, efficiency, and economy become overwhelming. (Jury applied KT state law in federal court, and they would have done this had it been remanded state court, so the Justices did not feel a need to send it back).

The Erie Problem What Law Applies in a Diversity Case? Goals of Erie:

(a) discouragement of forum shopping (b) avoidance of inequitable administration of the laws

A. Constitutionalizing the IssueErie Railroad v. Tompkins (Overrules Swift v. Tyson)

The Constitution requires federal courts to apply state common law in diversity cases. It was already clear that state positive law applied in diversity cases and as Justice Reed’s

concurring opinion recognized, “no one doubts federal power over procedure” 28 U.S.C. §1652 Rules of Decision Act: “The laws of the several states, except where the

Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.”

Diversity Cases : THERE IS NO GENERAL FEDERAL LAW

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1. Substantive Positive LawYes2. Substantive Common LawYes (Erie)

GREY SPACE IN THE MIDDLE3. Rules of Practice & ProcedureNo

Federal courts should apply state substantive law and federal procedural law!

B. Developing a Test after Erie 1. Interpreting Erie’s Constitutional Command

Guaranty Trust Co. v. York: Outcome Determinative TestFederal courts sitting in diversity should apply a state law that conflicts with federal practice when disregarding the state law would significantly affect the outcome of the litigation. The lower federal courts therefore erred by refusing to apply the state statute of limitations based on a contrary federal practice. NY State Law : Statute of Limitations had expired Federal Practice : Equitable discretion to hear the case The SOL had expired which conflicted with equitable discretion of her case. SCOTUS said federal courts exercising judgement based on diversity alone should

come out the same way. SCOTUS said that the federal court should apply the state SOL in a diversity case This is clearly procedural, not substantive, but this is why it fell in that GREY SPACE

IN THE MIDDLE (because it seemingly contradicts the idea that one should apply federal procedural law and state substantive law)

Outcome Determinative Test: Would disregarding state law be outcome determinative? If so, federal court should apply state law. If not so, federal court can follow its usually process. (This causes an issue because every rule is outcome determinative in a way).

Byrd v. Blue Ridge Rural Electric Cooperative: was an independent contractor injured during a construction project. The federal court was not required to follow a state supreme court decision holding that the trial court, rather than a jury, should determine whether the ’s was a statutory employee who was covered by the state workers’ compensation statute. The requirement appeared to be merely a form and mode of encoring the immunity (more procedural than substantive), and not a rule intended to be bound up with the definition of the rights and obligation of the parties, and the importance of the federal practice outweighed the likelihood of a different result in state court. State Law : Judge decides whether was statutory employee Federal Practice : Jury decides whether was statutory employee

Hanna v. Plumer: Redefines Outcome-Determination Test of Guaranty Trust In this case, there was a conflict between service of process standard under Rule 4 of the Federal Rules of Civil Procedure (provides service of process at ’s home) versus Massachusetts state law (in-hand service of process to ). Service of process in a diversity case in federal court is governed by Rule 4 of the Federal Rules of Civil Procedure. Valid Federal Rules and Statutes apply in Federal Court in Diversity Cases. Moreover, the “outcome-determination” test cannot be read without reference to the twin aims of the Erie rule: (a) discouragement of forum shopping (b) avoidance of inequitable administration of the laws

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The Court looks at these questions from the perspective of someone who is choosing a judicial forum before the litigation begins (“Forum Shopping”). 1. Substantive rules of state law apply under Erie2. Does FRCP or federal statute govern the situation & conflict with state law? If so, it

would usually apply. FRCP gain authority from Supreme Court pursuant to Rules of Procedure & Evidence

*must be procedural rules (valid & permissible as a general matter under Article III & necessary & proper clause)a) Is FRCP permissible under Rules Enabling act?b) Is FRCP or federal procedural statue constitutionally permissible?

THEN, follow FRCP or federal statute. 2. De-Constitutionalizing Erie

Analysis following Byrd and Hanna : (1) Substantive rules of state law apply under Erie. If, however, state-law rule or practice is

“rationally capable of classification as either” substantive or procedural, then:(2) Does FRCP or federal statute govern the situation and conflict with state law?

(A) If so, is FRCP permissible under the Rules Enabling Act (i.e., “rules of practice and procedure”)?

(B) If so, is FRCP or statute constitutional? (C) If so, federal rule applies under Hanna PERIOD! END OF STORY!

See also Rules of Decision Act, 28 U.S.C. §1652. (If it’s just a federal practice, then NO)

(3) If answer to (2) is no, court should:(A) Balance the importance of a conflicting federal practice against the likelihood of a

different outcome in state court under Byrd; and/or(B) Examine, under Hanna, whether disregarding the state law would:

(i) encourage unseemly forum-shopping, or(ii) lead to inequitable administration of the laws (modified version of balancing test)

If so, court should apply state-law ruleIf not, court should apply federal practice

Cutting-Edge of Erie Problems Sometimes, SCOTUS is very willing to find that a FRCP or federal statute conflicts because they

are valid In contrast, sometimes the court will analyze FRCP or federal statute narrowly and hold that state

law should apply. (Scalia)Litigation As A Means of Resolving Disputes and Securing Remedies

A. Introduction to Remedies1. Make-Whole Damages2. Punitive Damages 3. Specific Relief

Specific Relief:Injunctive Relief Specific PerformanceDeclaratory Judgment

Troupe v. C & S Wholesale Grocers, Inc. The federal district court denied ’s motion to remand because the has carried its burden of proving that if, if prevails, her damages will “more likely than not” exceed the minimum jurisdictional amount because of the totality of her medical complaints, medical bills, etc. (i.e., >$75,000). Just because she did not plead an excess

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of $75,000 did not preclude from successfully bearing its burden to have the case removed to federal district court (in an effort to keep the case away from the ’s peers in her home state).

28 U.S.C. §1446(c)(2): “If removal of a civil action is sought on diversity, the amount in controversy is what is listed in good faith on the initial complaint.” But can remove and show that it will be more than $75,000 and federal court could keep the case.

B. Provisional Remedies (Rule 65 of FRCP)Emergency Relief: When cannot wait until lawsuit is over to receive relief (Ex. Abusive Spouse, Permits, etc.)a. Preliminary Injunctions (PIs)

Must have notice to Hearing can be merged with decision (can appeal immediately)

b. Temporary Restraining Orders (TROs) Winter v. Natural Resources Defense Council, Inc. A seeking a preliminary injunction to

stop the navy from using sonar training because it harmed marine animals in violation of many federal environmental laws and they had to establish:1. Likelihood of Success on the Merits ( must establish that he is likely to succeed on the

merits)2. Irreparable Harm ( must establish that he is likely to suffer irreparable harm in the

absence of preliminary relief) 3. Balance of Equities ( must establish that the balance of equities tips in his favor)4. Public Interest (and must establish that an injunction is in the public interest)

(Traditional Test is all four)(Alternative Test is just #1 & #2 and in #2 the only needs to show a possibility of irreparable harm)

SCOTUS suggests, in dicta, that the Ninth Circuit’s standard, which only requires a “possibility” of irreparable harm in some circumstances, is too lenient, and that s must demonstrate that irreparable harm is “likely” in the absence of a preliminary injunction.

“Even if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. A proper consideration of these factors alone required denial of the requested injunctive relief.”

SCOTUS says that it was wrong for the district court to grant the preliminary injunction based upon SCOTUS’s analysis of #3 and #4. (Although they proved #1 and #2 they didn’t prove #3 and #4).

Beginning the Litigation Process Pleadings A. Stating a Claim

1. General Principles of PleadingRule 8(a): Notice PleadingA pleading which sets forth a claim for relief. . . shall contain: 1) a short and plain statement of the grounds upon which the court’s jurisdiction

depends (What are you doing in federal court?)2) a short and plain statement of the claim showing that the pleader is entitled to relief

(What are you complaining about?) 3) a demand for judgement for the relief the pleader seeks (What do you want?)

2. Requiring and Forbidding Specificity in Pleadinga. “Legal Sufficiency” Haddle v. Garrison Haddle was fired by employer because he was going to testify against

them to a grand jury about Medicare fraud. SCOTUS stated (Reversed decision of 11th

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Circuit Court and District Court that said that ’s claim did not fall under the Civil Rights Act of 1871) that the district court erroneously dismissed plaintiff’s complaint for failure to state a claim upon which relief can be granted because interference with at-will employment may give rise to a claim for damages under the Civil Rights Act of 1871. SCOTUS says the point of the statute is to protect witnesses for cooperating with federal court proceeding; not to protect property as s claim and District Court and 11th Circuit support and affirm.

b. “Factual Sufficiency” Bell Atlantic Corp. v. Twombly sued s for entering into unlawful agreement not to

compete in violation of Sherman Antitrust Laws and parallel conduct. SCOTUS: ’s complaint did not state a claim for relief under §1 of the Sherman Act because “stating a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made.” (i.e., plausible factual allegations are required, and they weren’t present here). “conclusory allegations”: s engaged in a conspiracy not to compete in violation of federal antitrust laws

+well-pleaded factual allegations: s engaged in various specified forms of “parallel conduct”*SCOTUS states that “plausible” factual allegations are required

Ashcroft v. Iqbal was detained for alleged immigration violations on subjected to harsh conditions allegedly on account of his race, religion, or national origin (which if determined to be true would be unconstitutional). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Analytical Framework: Does the complaint plausibly give rise to an entitlement for relief? 1. Disregard mere “legal conclusions”/conclusory allegations (contra Conley v.

Gibson) (“We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth.”)

2. Assess whether remaining (“well-pleaded”) factual allegations “plausibly give rise to an entitlement for relief” (“We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief.”)a. Is it more likely than not that is liable based on the well-pleaded facts?

ORb. Is there a (significantly?) more plausible, alternative explanation?

Thus . . . 1. Identify the legal conclusions & disregard them 2. Assess whether the well-pleaded factual allegations plausibly suggest an entitlement for

relief3. Applies to all civil cases

(Twombly and Iqbal standards rule out frivolous lawsuits prior to expensive or burdensome discovery)

Criticisms of Twombly and Iqbal Tests: 1. Some s need discovery to make factual allegations2. Credibility determinations are supposed to be made by juries at the end of the case, not judges

at the beginning of the case 3. These standards may not be workable in practice4. Contrary to the original intent & design of FRCP

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5. Policy changes like this should be made through rule-making process Stradford v. Zurich Insurance Co. counterclaim against failed to plead the

circumstances constituting fraud with sufficient particularity under Rule 9(b) because it did not specifically identify plaintiff’s alleged lies, but the district court granted leave to amend the pleading and concluded that defendants subsequently satisfied the requirements of the rule. Rule 9(b): “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally.” *There is a heightened pleading standard behind fraud because there is a stigma, there is a sharp distinction between breach of k and fraud, was provided with false statements, so no need for discovery to identify fraud and limit to punitive damages.

3. Ethical Limitations in Pleadinga) Signatureb) Representations to Court

1) No improper purpose2) Warranted legally or nonfrivolous argument3) Factual contentions 4) Reasonably based on belief

c) Sanctions1)must be made in separate motion(21 days are given to correct before motion for Rule 11 Sanctions are filed)2)On Court’s Initiative3)Nature of Sanctions4) Limitations on Monetary Sanctions

d) Inapplicable to Discovery (there are ethical limitations on Discovery) Walker v. Norwest Corp. ’s complaint violated Rule 11 because it did not even allege that

complete diversity of citizenship existed. Norwest wanted the ’s lawyer to dismiss the case but he didn’t. s filed a motion to dismiss for lack of subject matter jurisdiction which was granted. Moreover, the district court did not abuse its discretion by imposing monetary sanctions for this violation or denying plaintiff’s motion to amend the complaint.

Christian v. Mattel, Inc. “Don’t Mess With Cool Blue Barbie!” The district court granted Matte’s motions for summary judgment and motions for Rule 11 Sanctions. Although the district court did not abuse its discretion by awarding sanctions under Rule 11 based on the lawyer’s inadequate factual investigation (lawyer filed a copyright lawsuit against Mattel when Mattel’s copyright on Cool Blue Barbie preceded Claudene by six years, the district court’s order was tainted by its consideration of other misconduct that cannot be the basis for sanctions under Rule 11 such as discovery abuses, misstatements made during oral argument, and conduct in other litigation, which is not allowed under Rule 11 sanctions.

Bridges v. Diesel Service, Inc.: violated Rule 11(b)(2) by failing to conduct competent legal research (by not going through the administrative process of filing a charge with the EEOC) prior to filing a complaint. Nonetheless, the court exercised its discretion and declined to impose sanctions on the lawyer.

On Remand District Court Could:1. Lower payment amount of sanctions2. Delineate to Rule 11 Sanctions only3. Court could impose sanctions on ’s lawyer (Hicks) for Discovery violations or oral

argument separately.

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Pre-Answer Motions (Rule 12)1. Gives time2. Don’t acknowledge claims in complaint3. Avoid or Postpone Discovery

Motion for Judgment on the Pleadings (Rule 12(c))-If has already answered, this is a way to get rid of the complaintOR-Judgment as a matter of law (i.e. statute of limitations has run) (Undisputed info in the pleading and answer)

Rule 12(e): Bell v. Novick Transfer Co.: ’s complaint (about their infant child who was injured in a car

accident involving a tractor trailer) sufficiently pled a cause of action in federal court because Rule 8 requires only “a short and plain statement of the claim showing that the pleader is entitled to relief). was not entitled to “a more definite” statement under Rule 12(e). may obtain by interrogatories or other discovery the facts which based its allegations.

Motion to Strike (Rule 12(f))-Motion to remove a count, of multiple counts in a complaint, for failure to state a claim upon which relief can be granted-Occasionally used to strike publicly embarrassing or prejudicial claims that having nothing to do with the complaint

B. Responding to the Complaint: Dispositive Motions and Answersa) Pre-Answer Motion (Rule 12) *see above b) The Answer (Rule 8(b)-(d))

Zielinski v. Philadelphia Piers, Inc. violated Rule 8(b) by failing to provide a more specific answer, which would have provided with the information necessary to determine that he sued the wrong . (because he admitted that the forklift was owned by Philadelphia Piers and Sandy J was the worker because it wasn’t specifically denied in the answer even though Sandy J was an employee of Carload Contractors at the time not PP). The court therefore issued an order that (falsely) instructed the jury that the employed the alleged tortfeasor on the date of the accident, and explained that would be prejudiced by this order because it was represented throughout the litigation by the same company that insures Carload Contractors. (The court instructs the jury this was because insurance will pay regardless because PP had been sold to CC)

C. Amendments to the Pleadings (Rule 15)a) Amendments Before Trial

1) Amend pleadings once within 21 days or within 21 days after the answer or within 21 days after a motion

2) After 21 days, you have to get the other sides’ permission. The Court should give leave when justice so requires

3) If files amended complaint, has to file amended answer & usually have 14 daysb) Amendments During and After Trial

1) If a party objects based on outside scope of pleadings, but if evidence is found in Discovery they will usually allow it, if it’s a surprise or not in Discovery usually not

2) If they don’t object, it is waivedc) Relation Back of Amendments

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1) An Amendment to a pleading relates back to the date of the original pleading when: A) An amended complaint can relate back to original complaint even if Statute of

Limitations has lapsedB) As long as same conduct, transaction, or occurrence.C) Or if it changes naming of party with timely notice

d) Supplemental PleadingReflect a transaction, occurrence or event after the complaint was originally filed.

Beeck v. Aquaslide ‘N’ Dive Corp. filed a motion to amend the pleadings after realizing the slide wasn’t theirs, even though they said it was in their original answer to ’s complaint. The district court did not abuse its discretion by allowing to amend its answer to denying manufacturing the slide because had a good reason for initially admitting that it manufactured the slide and the would not be unduly prejudiced by the amendment. Nor did the district court abuse its discretion by ordering a separate trial on the issue of which corporation manufactured the slide because a separate trail advance the goals of efficiency and fairness.

Relation Back: Moore v. Baker (violation of informed consent/negligence) The district court did not abuse its

discretion by denying the ’s motion to amend her complain after the Statute of Limitations had run on her negligence claim because that claim/complaint did not arise out of the same conduct, transaction or occurrence as the claims in her original complaint, so the SOL didn’t apply.

Bonerb v. Richard J. Caron Foundation (negligent maintenance/professional malpractice) The amended complaint arose out of the same conduct, transaction or occurrence as the original complaint and therefore “related back” to the filing of the original complaint for purposes of the statute of limitations because the operational facts of the original complaint put on notice of the claim that the later sought to add.

DiscoveryTwo Questions for Discovery

1. Is the information relevant? (If no, then undiscoverable. If yes, go to #2) 2. Do the burdens outweigh the benefits?

A. The Tools of Formal Discovery 1. Depositions by Oral Examination (Rule 30)

30(b)(6): Depositions for Organizations Party may name public or private corporation, partnership, association, government agency or other entity. Named witness testifies for organization 30(c)(2): Objections Objections can be made and must be noted at the record (witness must answer question because court will later determine the objection) You don’t have to answer question if it’s privileged info, it’s been protected by court or will go to court for protective order 32(a)(1): Depositions in Trial Favored method of developing testimony is live witnesses but depositions can be used 32(a)(2): Depositions in Trial Cont. Depositions are often used to contradict or impeach a witness

2. Interrogatories to Parties (Rule 33)33(a)(1): No more than 25 questions33 (d): You can give opposing party the information that they need if requested/Option to produce business records

3. Production of Documents (Rule 34)

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34(b)(2)(D) Responding to a request for production of electronically stored information 4. Physical and Mental Exams (Rule 35)

*Need a court order*Must be party to the lawsuit *Person examined must receive their own exam a) A physical or mental factor must be in controversy b) There must be good cause to take a physical or mental exam

5. Requests for Admissions (Rule 36) 36(a)(3): Admitted unless 30 days after being served, the party to whom the request is directed serves on requesting party a written answer or objection addressed to the matter and signed by party or its attorney

6. Failure to Make Disclosures or Cooperate in Discovery; Sanctions (Rule 37)37(b): Failure to comply with a court order

7. Sanctions Rule for Discovery for Improper Certification (Rule 26(g))

B. The Stages of Modern Discovery

C. The Scope of Discovery Rule 26(b)(1) In General (1)

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties can obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

D. Limitation on Discovery in an Adversarial SystemWhen requiredthe court must limit the frequency or extent of discovery otherwise allowed . . . if it determines that:i. the discovery sought is unreasonably cumulative or duplicative or more easily available

from another source.ii. a party already had ample opportunity thorugh discovery to obtain the information.iii. the proposed discovery is outside the scope permitted by Rule 26(b)(1) *above Favale v. Roman Catholic Diocese of Bridgeport

asked principal and school to turn over information about principal’s history of psychiatric care and anger management because of her claim against the principal for sexual harassment in the workplace. The district court granted ’s motion for a protective order to shield the discovery of testimony and related documents regarding any prior treatment the principal may have received for her anger management history or related psychological or psychiatric conditions on the grounds that his information was not relevant to the ’s claim that the negligently hired or supervised the principal (anger management does not equal sexual harassment, so it’s not relevant which violates the first question of determining whether something is discoverable).

“It is well settled that s cannot be held liable for their alleged negligent hiring, training, supervision, or retention of an employee accused of wrongful conduct unless they had notice of said employee’s propensity for the type of behavior causing the ’s harm.” (anger management does not equal sexual assault, so since it is not relevant, it is outside the scope of discovery).

1. Trial Preparation Material

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A. Proportionality/Privacy Price v. Leflore County Detention Center: ’s son died in prison from inadequate

medical treatment to inmates. ’s interrogatory said to identify & produce complaints over the past 10 years of inadequate medical treatment in the prison, and says no, that it is unduly burdensome). The district court issued an order compelling the “to identify any complaints concerning failure to provide medical treatment to inmates at the detention center for the [seven] years prior to the filing of this action.” The court concluded that this information was central to ’s claim that had established an unconstitutional policy of providing inadequate medical care to inmates, there was no less burdensome way for to get the information, and should not be penalized because keeps shoddy records.

2015 Amendment: 1) Importance of Issues2) Amount in Controversy3) Parties’ Relative Access to Relevant Information4) Parties’ Resources5) Importance in Resolving Issues6) Whether Burden Outweighs Likely Benefit

. . . all must be proportional to the needs of the case

Rengifo v. Erevos Enterprises, Inc.: filed suit to recover unpaid overtime wages under FLSA. requested information related to ’s immigration status including employment records, SS#, authorization to work in the U.S., etc.) The district court granted ’s request for a protective order (Rule 26(c)) to shield his immigration status and related documents from discovery in a lawsuit seeking unpaid overtime wages under the Fair Labor Standards Act and New York Labor Law. While the district court acknowledged that some of this information was marginally relevant, it concluded that the burden of product it would outweigh its benefits to the case. In particular, this information must be shielded form discovery for (and other similarly-situated immigrants) to assert their statutory rights as a practical matter because it would be too oppressive in terms of a burdensome balance. They also stated that the immigration status information was irrelevant because seeking unpaid wages has nothing to do with one’s immigration status). The information was only marginally relevant to the case NOT centrally relevant.

E. Privileges to Discovery (*See Work Product Privilege) 1. Attorney-Client: communications between lawyer and client where lawyer is giving legal

advice 2. Fifth Amendment: can be held against you in civil cases 3. Upjohn v. U.S.: Employees of corporation are clients of corporation for purposes of attorney-

client privilege4. Attorney-Work Client Privilege (see Hickman v. Taylor) 5. Doctor-Patient (Most states say you waive this if you sue your doctor for injuries) 6. Deliberative Process (by secretary of agency or other high-level approval) 7. Spousal Privilege

B. Work Product Privilege (Rule 26(b)(3)) Hickman v. Taylor: Whether lawyer (Fortenbaugh) should turn over the statements

he took from 4 living crew members after 5 crew members drowned after a tugboat sank to . No; because of qualified privilege for attorney’s work privilege. An

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attempt, without purported necessity or justification, to secure written statements, private memoranda, and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Categories of Information: (On A Scale)

1. Underlying Factsnot protected from discovery (what happened, what witness saw)

2. Attorney’s Memosqualified privilege potentially overcome by “necessity” 3. Mental Impressionsabsolutely protected

2. Expert Information1. “Fact Witnesses” are freely discoverable

Must be disclosed if a party plans to sue at trial Identify “subject matter” of testimony and summary of “facts and opinions”

2. “Retained Experts” Who are Expected to Testify (Hired) are freely discoverable3. “Retained Experts” Who are NOT Expected to Testify (Hired)

Presumptively shielded from discovery unless opponent established “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on same subject by other means.”(Hey! Opposing party! Go hire your own expert!)

Thompson v. The Haskell Co. sues and ’s employee for sexual assault. hires a lawyer and lawyer sends to psychologist. did not expect to call this psychologist to trial (so normally this psychologist would be shielded from discovery) There are “exceptional circumstances” justifying the disclosure of non-testifying psychologist’s observations because plaintiff’s mental and emotional state ten days after her termination was “highly probative” to an essential element of her case and the “could not obtain the information contained in [the] report by any other means.” Thus, court denies ’s motion for a protective order because there was no other way for to get the same information because the emotional distress that she experienced may have lessened overtime if had their own psychologist analyze her (so they would not have discovered the same facts).

Chiquita International Ltd. v. M/V Bolero Reefer The court determined that should have gotten their own expert witness to examine the ship because Chiquita said they were not expecting their witness (Mr. Winer) to testify. There were no exceptional circumstances warranting discovery of the observations of ’s non-testifying expert witness because the was not precluded from sending its own expert to the seen by forces beyond its control. (i.e. there was another way for the to get the information). Court said Chiquita shall produce Winer’s documents that do not reflect his observations and opinions of the ships.

Resolution Without Trial Summary Judgment A. Summary Judgment (Viewed in the light most favorable to the non-moving party or whether there

is evidence that would allow a reasonable jury to find in favor for the nonmoving party) Rule 56(a): provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Two Types of Summary Judgment Cases (No Dispute of Material Facts) 1. Pure Questions of Law

Both parties agree on facts so only question is who is right/cross motions for S.J.2. One Party Moves/Facts Are One-Sided

Nothing to have a trial about so court will rule who the facts favor

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Celotex Corp. v. Catrett Responsibility of the Moving Party: motioned for S.J. saying failed to provide evidence that decedent had ever been exposed to its product. produced a) decedent’s deposition b) letter from former employer and c) letter from insurance company. Of course, a party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion, and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Therefore, they do not need to produce evidence negating or disproving the other party’s claim. The non-moving party must produce cognizable evidence that would allow a rational jury to find in its favor (and that evidence must be admissible in court).

But Not Refute Claim: There is no requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. Rule 56(c), which refers to “the affidavits, if any,” suggests the absence of such a requirement. Moreover, the burden of the moving party may be discharged by “showing”that is, pointing out to the district courtthat there is an absence of evidence to support the non-moving party’s case.

Responsibility of the Non-Moving Party Who Bears Burden of Proof: Produce cognizable evidence that establishes genuine issue of material fact for trial:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party who fails to make a showing to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. The standard for summary judgment mirrors the standard for a directed verdict under Rule 50(a).

SJ is an Integral Part of the Rules: Before the shift to “notice pleading, accomplished by the Federal Rules, motions to dismiss a complaint or to strike a defense were the principal tools by which factually insufficient claims or defenses could be isolated and prevented from going to trial. But with the advent of “notice pleading,” the motion to dismiss seldom fulfills this function any more, its place has been taken by the motion for summary judgment.

Tolan v. Cotton Tolan sued police officer for excessive force after shooting him and assaulting his mother. The lower courts erred by granting summary judgment in favor of because “[i]n holding that Cotton’s actions did not violate clearly established law, the Fifth Circuit failed to view the evidence at summary judgment in the light most favorable to Tolan with respect to the central facts of this case.” Was there a genuine issue of material fact? SCOTUS says yes!

Bias v. Advantage International, Inc. Bias’s family sued agents for breach of K because said they would buy a jumbo life insurance policy on Bias and didn’t. produced evidence of Bias’s friends stating that they saw him take drugs at a party and produced testimony from parents, testimony from the coach, and negative drug tests. Summary judgement was granted in favor of s because it was “undisputed” that Bias was a drug user who could not have obtained a valid life insurance police prior to his death. The court found that a rational jury would have found in favor of defendant because of the evidence that was produced.

The Division of Authority Between Judges and JuriesA. Judgment as a Matter of Law Whether there is evidence that would allow a reasonable jury to

issue a verdict for the nonmoving party (Must be filed before the case goes to the jury)

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The Timing of Judgment as a Matter of Law

Summary TrialJudgment-------(1) ’s Case----------(2) ’s Case-------------(3) Jury’s Verdict----------AppealPrior to Trial ’s Motion Cross-Motions JNOV

For a For Directed and/orDirected Verdict Verdicts Motion

For NewTrial

Pennsylvania Railroad v. Chamberlain ’s estate sued Pennsylvania RR for negligence resulting in ’s death when he allegedly fell off of a train car when three employees crashed into him with their train car. The court found that the was entitled to a directed verdict because a reasonable jury could not conclude that ’s negligence caused the accident1) ’s circumstantial evidence supported conflicting inferences2) presented uncontradicted, direct evidence to defeat liability (Three employees said, “there

was no collision)3) The testimony of ’s witness (My Friend, Bainbridge) was not credible

’s witness (My Friend, Bainbridge) said, “I heard collision” but he had no other evidence and ’s witness said the crash did not happen so a rational jury could only find for

B. New Trials Whether the Jury’s Verdict Is Against the Great Weight of the Evidence 1. Motion must be filed 28 days after entry of judgment2. New trial may be granted if judge admitted evidence that shouldn’t have, there was fraud,

etc. 3. New trial may be granted in order to correct a flawed verdict 4. Not immediately appealable, not final judgment . . . a do-over! Lind v. Schenley Industries Jury rendered a verdict for on breach of k claim. Judge grant’s

’s motion for JNOV and, in alternative, the motion for a new trial. The district court substituted its judgment for that of the jury and therefore abused its discretion by granting ’s motion for a new trial in a simple case turning entirely on credibility determinations/the evidence was “highly suspect.” Dissent: Wide discretion should be accorded to the trial judge because granting a motion for a new trial “has provided the one important limitation on the power of the jury to make an unimpeachable decision on the fact, even where the evidence is conflicting.”

Damages Whether the Jury’s Verdict Shocks the Judge’s Conscience 1. Remittitur

i. New Trialii. Reduction of Damages and not appealable

2. Additur Unconstitutional under 7th Amendment because no jury ever rendered this verdict for more money! (Which should also be the case under remittitur, but the court’s don’t acknowledge this)

Respect for Judgments

A. Claim Preclusion/Res Judicata Standards for Claim Preclusion1. Traditional Approach (Narrower) one suit precludes a second “where the parties and the

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cause of action are identical”/same cause of action 2. Restatement of Judgments (Broader)all claims arising from a single “transaction” must be

litigated in a single, initial lawsuit, or be barred from being raised on subsequent litigation. *Federal Courts Follow the Restatement of Judgments

Frier v. City of Vandalia Frier filed two lawsuits in state court based on his car being towed. The first lawsuit was for replevin in state court in IL and the second was for procedural due process claim in Federal District Court and the court granted a motion for summary judgment for the City of Vandalia. Majority: Frier should have asserted his constitutional claim against the city in the initial lawsuits because both actions involved the same “common core of operative facts” and the same transaction. Concurrence: Rejects the application of res judicata based on Illinois’ continued adherence to the traditional approach (not the modern test as was applied by the majority) but would affirm the district court’s judgment on the merits. (Replevin and Procedural Due Process are not the same cause of action but they do arise from the same transaction so there was tension here)

Taylor v. Sturgell Herrick filed a lawsuit against FAA for violating FOIA and the court granted summary judgment for . Taylor then filed the same complaint against FAA because they didn’t release the same info that Herrick asked for in the first case and had the same lawyer as Herrick in the first case and the court granted summary judgment to FAA based on claim preclusion SCOTUS said Taylor’s FOIA claim was not precluded on the theory that he was “virtually represented” in the prior litigation by Herrick because Taylor was not a party to the first suit, and “the application of claim and issue preclusion to non-parties runs up against the deep-rooted historic tradition that everyone should have his own day in court.” (Law of preclusion is based on federal law used in first case because it was a federal question brought in federal court) (If Taylor has brought case in 10th Circuit, FAA would have gotten summary judgment because there was binding precedent in the 10th CircuitTaylor was forum shopping which is why he picked the D.C. Circuit for second suit) Adequate Representation Exception:1. Procedural safeguards to protect 2nd party2. 1st suit was brought in 2nd party’s interests

B. Issue Preclusion (Restatement (Second) § 27)An issue will be precluded when:1. An issue of fact or law is 2. actually litigated and determined by3. a valid and final judgement, and 4. the determination is essential to the judgement,

the determination is conclusive in a subsequent action between the parties, whether on same or a different claim. (Only bars issues that were actually litigated and decided and essential to the judgement in the first case)

Illinois Central Gulf Railroad v. Parks The case involved a car accident with a train. JP (driver) sued railroad and JP lost in the first case and wins nothing (jury must have found that JP was contributorily negligent). In the same case, BP (passenger) sued railroad for personal injuries and won and recovered damages. In the second lawsuit, JP sued railroad for personal injuries. The court determined that JP was not barred from re-litigating his alleged contributory negligence because railroad failed to meet its burden of showing that the issue was actually litigated and decided and essential to the judgment in prior litigation between the parties (i.e. they did not satisfy #2 of Restatement (Second) § 27). The jury didn’t necessarily have to find that JP was contributorily negligent, it could have been because JP didn’t meet his burden of proving damages. The Indiana State court used the traditional approach to claim preclusion because it was used in the 1st case.

C. Offensive, non-mutual collateral estoppel

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Parklane Hosiery Co. v. Shore The 1st lawsuit (a bench trial) involved SEC against Parklane in federal court for false and misleading proxy statement, and Parklane lost, which was affirmed by the 2nd Circuit. In the second lawsuit, Shore sued Parklane for false and misleading proxy statement. Shore wanted to preclude Parklane from re-litigating the issue of whether it issued a false and misleading proxy statement and Parklane says if Shore’s preclusion is granted, then they would be deprived of their 7th Amendment right to a jury trial (because the first case was settled in a bench trial). Federal District Court agrees with Parklane and the Circuit Court of Appeals reverses. Issue for SCOTUS is whether Shore can preclude the issue of false and misleading proxy statement from being relitigated, so he can invoke offensive, non-mutual collateral estoppel. SCOTUS says that the preferable approach for dealing with the potential problems of offensive, non-mutual collateral estoppel in the federal courts is not to preclude the use of the doctrine, but to grant trial courts broad discretion to determine when it should be applied. Factors to Consider:1. Could have easily joined the prior action?2. Were the stakes in the first lawsuit sufficiently high? 3. Would the second lawsuit provide additional procedural safeguards? 4. Are there already inconsistent judgments on the issue? 5. Are there other reasons to question the reliability of the prior judgment?

Under tradition rules, Shore could not get preclusion because he was not party to the 1st lawsuit. (Offensive, non-mutual collateral estoppel)

If it is defensive, non-mutual collateral estoppel when was party to 1st case (SCOTUS had previously endorsed defensive, non-mutual collateral estoppel)

The victim of preclusion cannot be precluded unless they were party to lawsuit #1 otherwise it is a due process violation!

Complex Litigation: Additional Claims and Parties A. Framework of Analysis for Joinder Problems

1. Do the rules authorize joinder of this claim or party? 2. If yes, does the court have jurisdiction over the claim or the party? (Look at federal

question, diversity, but will often fall under Supplemental Jurisdiction under §1367)

B. Joinder of Claims Rule 18 (Rule 18(a) Unlimited Joinder of Claims: “A party asserting a claim,

counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.”)

Rules 13(a) Compulsory Counterclaims (13(a)(1) “A pleading must as a counterclaim any claim that . . . the pleader has against an opposing party if the claim . . . arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim . . .”13(b) Permissive Counterclaims (13(b) A pleading may state as a counterclaim against an opposing party any claim that is not compulsory)

Rule 13 (g) Crossclaims (A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim . . .”) (Rule (14) “The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of the claim asserted in the action against the cross-claimant.”)

C. Joinder of Parties 1. Rule 20 Permissive Joinder of Parties

a. Joinder of Parties (Rule 20(a)(1) Plaintiffs “Persons may join in one action as plaintiffs

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if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action)

b. (Rule 20(a)(2) Defendants “Person . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.”)

c. Rules 20(b) Protective Measures (“The court may issue orders – including an order for separate trials – to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party”)

d. Rule 21 Misjoinder and Nonjoinder of Parties (Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.)

e. Rule 42 Authorizing Severance & Consolidation (Rule 42(a) Consolidation “If actions before the court involve common questions of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other order to avoid unnecessary cost or delay.”) (Rule 42(b) Separate Trials “For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims . . .”)

D. Joinder of Parties by s (Rule 20(a)(2))1. Rule 13(h) Adds 2nd to Counterclaim (“Rules 19 and 20 govern the addition of a

person as a party to a counterclaim or cross claim”)2. Rule 13(g) Adds 2nd to Crossclaim 3. Rule 14 3rd Party Practice/Derivative Liability (Rule 14(a)(1) “A defending party may,

as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer.”)

Rule 14 many only be used to “implead” a third-party defendant who may be held derivatively liable to the defendant, if the defendant is found liable to the plaintiff.

In other words, Rule 14 may only be invoked if the third-party defendant could be legally required to reimburse the original defendant for a portion of its liability to the plaintiff.

Rule 14 cannot be invoked if the defendant is merely seeking to shift blame to someone else for the plaintiff’s alleged injury (“it was him not me!”).

Whether There is a Basis for Derivative Liability Depends on the Relevant Substantive Law.Common Grounds for Derivative Liability: 1. Indemnification in k or2. Contribution in TortIf is found liable to , then 3rd party reimburses for all or part of ’s liability. Only if 3rd party could be legally required to reimburse original for a portion of its liability Rule 14 cannot be invoked if is merely seeking to shift blame to 3rd party.

Third-party claims will generally fall within a federal court’s supplemental jurisdiction, because they, by definition, arise out of the same common nucleus of operative facts as the plaintiff’s original claim is original defendant.

However, Rule 14 also authorizes the parties to file additional claims against each

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other in some circumstances, which can raise substantial complexities.

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