Popular in Civil Procedure
Popular in Law
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Date Created: 10/09/15
What is civil procedure 0 Civil not criminal Civil cases are not about society or the state going after someone for breaking the law It is about two parties suing each other usually seeking compensation Usually they are private parties not the government EX family law breach of contracts tortsnegligence intellectual property Procedure about the enforcement of civil law in the courts Most civil cases do not go to trial Going to court is just one way of dispute resolution 0 Mediation a discussion between two people with some kind of facilitator 0 Arbitration private not by the government Most cases that used to go to court are now settled by arbitration 0 Negotiation settled by the two parties in any way they want Avoids the zero sum game Rule 1 of civil procedure just speedy and inexpensive determination of every action and proceeding Potential downside of the system Resources of the litigants matter one person against a corporation with a team of lawyers Adversarial system one against each other Judge as the referee He doesn t help out the teams Cost of the system Things to consider when deciding whether or not to go to court the costs of litigation duration chance of winning evidence judgment proof whenever the defendant has no assets where the lawsuit will take place what law applies depending on states England 500 years ago Courts of law and courts of equity Chancery Law would award damages and equity would award injunctions order people to do things or not Today these are fused together in our system We can award damages and injunctions Complaint by plaintiff initiates law suit Defendant either answers or motions to dismiss Default if the defendant doesn t show up The defendant can also choose to settle right away JURISDICTION 1 Personal jurisdiction territorial jurisdiction power over the particular individual whether they are a resident of the state plays a part Hess v Pawloski Hess negligently drove a motor vehicle and injured someone in another state and then went back to his home state Does the foreign state have jurisdiction over Hess YES A state can enact and enforce regulations designed to protect an important public interest even against nonresidents as long as the regulations treat residents and nonresidents equally O This is a consent type of case Hess coming into Massachusetts and driving a car implies consent to be governed by the laws in their state General Laws of Massachusetts statutory law basically he gets the benefit of operating a motor vehicle in their state and they get his consent to be sued in the state Pennoyer v Ne Neff was not served personally so did not show up or respond to court and a default judgment was issued against him Pennoyer bought Neff s seized land at the sheriff s auction Neff sued Pennoyer to recover his land claiming that the original judgment against him was invalid for lack of personal jurisdiction over him and the land 0 Was the court allowed to exercise jurisdiction over Neff nonresident NO The nonresident must be personally served with the process while within the state OR has property within the state which is attached before the litigation starts quasi in rem jurisdiction Constitutional Basis 14th amendment due process clause as a m on personal jurisdiction No state shall deprive a person of life liberty or property without due process of law In Pennoyer the limits were if the defendant consents and is personally served with process present These grounds are still sufficient today but are not necessary This system works better in a society where people do not move from state to state Full Faith and Credit Clause A legal decision in one jurisdiction is given full faith and credit by every other jurisdiction within the US 2 Subject jurisdiction power over a particular kind of case Court needs both of these power over defendant and type of case Types of jurisdictional theories used in Pennoyer v Ne In personam has to do with someone s personal obligations like contracts or torts To get this type of jurisdiction one must be present andOR served with process in that state and consent voluntary appearance Unlimited liability 100 billion dollars In rem means regarding a thing like ownership of somethingproperty Applies to the world not a person Requires presence of the property Quasi in rem 2 hybrid jurisdiction theory The topic of the suit is the personal obligations of in personam and the source of power from in rem presence of property Maximum value value of the property because that s all the state has power over Power is limited to the thing that they own So how does this work nowadays In rem jurisdiction is still used Quasi in rem theory has declined It is almost never relevant today Why Because in personam jurisdiction is way more important and easier to get In personam is now less concerned with presence and more concerned with fairness Neff shouldn t have been allowed to just run away and get out of his obligations Special appearance when the defendant is showing up to defend the suit only for the purpose of challenging jurisdiction Submits to court s jurisdiction to decide jurisdiction 1 IN PERSONAM JURISDICTION type of personal jurisdiction In personam can get through 0 Presence Pennoyer v Ne defined as being present within the jurisdiction 0 Consent showing up to court and agreeing to be held to trial I Have person set up to receive service of process I Implicit establishment I Showed up to defend case 0 Filed a counterclaim under the jurisdiction of forum court 0 Personal Jurisdiction must be challenged at the outset of the case otherwise challenge is forfeit I Choice of Forum Clause parties agree to litigate in specific forum I Court reluctant to enforce don t want to be ousted of juris I Common international arena O Domicile General iurisdiction over any and all lawsuits no matter what they re about When the quantity outweighs the relatedness Contracts must be continuous and systematic Enjoys benefits and protections of state laws Can bring a case that is unrelated to the specific contacts Defendant must be at home Establishes the home base essentially headquarters of place of incorporations Domicile of a person Evidence of specific jurisdiction cannot be used to establish general jurisdiction 0 Minimum Contacts international shoe I Must have certain minimum contacts within the forum state to not offend fair play and substantial justice 1 Protects defendant from burden of litigating in a distant or inconvenient forum 2 Acts to ensure states do not reach out beyond limits imposed as coequal sovereigns I Model of consent and presence is replaced with fairness of jurisdiction International Shoe Co v Washington Can Washington sue International Shoe in Washington when their principal place of business is somewhere else YES Since the company was afforded the rights and protection of laws of Washington they are subject to contribute to the unemployment compensation fund 0 New test for the 14th amendment due process clause minimum contacts such that maintenance of the suit does not offend traditional notions of fair play and substantial justice Limits the power of a state court to render a valid personal judgment against a nonresident defendant because they want the defendant to avoid unfair burden 0 HYPO a customer was on vacation and bought defective shoes in Missouri where principal business headquarters are At the time she picks up the shoes she makes it very clear that she is going to take the shoes back to Oregon her home state Can she sue the company in Oregon 0 Probably not because the company did not take purposeful action to put its products in Oregon or benefit from Oregon It was the customer s sole intention which brought the shoes to that place WWVW There was no advertising contracts or sales made in Oregon This scenario would not satisfy the International Shoe minimum contacts test RELEVANT CONTACTS ARE ENOUGH TO ESTABLISH PERS JURISDICTION 0 McGee v Int l Life Insurance pg 44 California insured person and insurance company in Texas He dies and the beneficiaries want the company to pay The company says it s a suicide and won t reimburse The beneficiaries want to sue in California The only 4 contact was one insured person in California Supreme Court said jurisdiction is okay in California It was not a high quantity of contact but high quality 0 States have an interest in protecting rights of its citizens Forum state s interest in adjudicating a case Unilateral activity of those who claim some relationship with a nonresident D does not constitute minimum contacts 0 Hanson v Denkla pg 45 Donner creates a trust at a bank in Delaware while domiciled in Pennsylvania She then moves to Florida but there is no jurisdiction in Florida When the trust was created there was no connection with Florida The unilateral activity of the plaintiff or 3rd parties not the defendant cannot establish jurisdiction We need purposeful availment by the defendant of the benefit of doing business in the forums Florida 0 Interstate business scenario purposefully conducting business in multiple places and being able to be sued in all those places HYPO Assume international shoe operates retail outlets in Washington but not in Oregon An Oregon citizen visits the Washington store and buys a pair of defective shoes which she takes back to Oregon Can she sue international shoe in Oregon No international shoe has no contacts purposeful in Oregon Long arm statute courts can t create their own jurisdiction State legislatures give it to the courts These are often called long arm statutes because they are trying to reach outside of the state to get defendants The due process clause of the 14th amendment creates limits on how far the long arm statutes can reach Clemens v McNamee Personal jurisdiction can be used if 1 the longarm statute of the forum state creates personal jurisdiction over defendant and 2 the exercise of personal jurisdiction is consistent with due process SPECIFIC JURISDICTION 1 Minimum Contacts are related to the case 2 Relationship between litigation and contacts 3 Defendant can reasonably foresee being haled into court there a Look to convenience for defendant World Wide Reasons to care about forumjurisdiction states tend to favor their own law which could be different than the law in the defendant s state higher costs of litigation and travel expenses Most people would rather litigate at home than bear the burden of travel Are the jurors more likely to give you more money in one place rather than another 0 WorldWide Volkswagen Corp v W00ds0n In order to exercise personal jurisdiction over a nonresident party how extensive must the party s contacts be to satisfy due process 5 Such that it does not offend traditional notions of fair play and substantial justice WWVW did not have minimum contacts with the forum state They did not solicit business there through sales or advertising Also their revenue deriving from that state was minimal and they did not intend to serve that state 0 Mobile plaintiff scenario usually not jurisdiction where the accident occurred like WWVW SDecific v General Jurisdiction Goodyear Dunlap Tires 12 Brown two North Carolina teenagers were killed on a bus in France because of faulty tires made in Turkey Are foreign subsidiaries of a US parent corporation Goodyear Tire amenable to suit in state court based on claims unrelated to any activity of the subsidiaries in the forums state NO General jurisdiction must have continuous and systematic affiliation with the forum state There is no business barely done by the foreign subsidiaries in the state of North Carolina The foreign subsidiaries do not have enough activity in North Carolina to submit them to jurisdiction there except for the boy s being from there STREAM OF COMMERCE Stream of Commerce Company sells product to some state where they have a distributor The distributor sells it to all kinds of places including the state where the injury occurred This is weaker than interstate business because there they are purposefully doing business there Stream of commerce is stronger than the mobile plaintiff scenario in regards to jurisdiction because it is not entirely left up to the plaintiff Stream of commerce is a valid theory for personal jurisdiction because the company knows in general or should know where their product will end up I Asahi case a Taiwanese company manufactured a valve a Japanese company put the valve in a tire and then the tire blew out in California and injured someone Stream of commerce Foreseeability of a product being sold in a state is relevant contact to establish personal jurisdiction The D is enjoying the benefits and laws of the state where the component or product is being sold However merely placing a product in the stream is not sufficient J McIntyre Machinery Ltd v Nicastro 0 Company must have contacts in addition to stream of commerce I Regular ow of products into forum not isolated sale I Advertisements I Design product specifically for a market I Salesman in New Jersey 0 Also must avail itself of rights and privileges of the forum state 6 Ainsworth v Mo et whether the district court could properly exercise personal jurisdiction over foreign defendant did he have minimum contacts 0 Streamofcommerce approach to personal jurisdiction under which the minimum contacts requirement is met so long as the court finds that the defendant delivered the product into the stream of commerce with the expectation that it would be purchased by or used by consumers in the forum state 0 Under that test mere foreseeability or awareness is a constitutionally sufficient basis for personal jurisdiction if the defendant s product made its way into the forum state while still in the stream of commerce 0 Moffet could have reasonably anticipated being haled into court in Mississippi They sold 203 machines there unlike the McIntyre case which sold 1 Foreseeability a corporation must be able to reasonably foresee being haled into court in a forum state for jurisdiction to apply A company can foresee by purposefully availing themselves of a state s laws or privileges Hanson v Denkla or can foresee by deriving substantial revenue from forum state WWVW WWVW example Although it was foreseeable that someone would drive one of their cars through Oklahoma foreseeability alone is not sufficient for personal jurisdiction under the due process clause The degree of foreseeability that must exist is not the mere likelihood that a product will find its way into the state but that the defendant s conduct and connection with the state are such that he should reasonably anticipate being brought into court there Also jurisdiction does not travel with chattel the car Unilateral activity of owner of chattel does constitute minimum contacts Foreseeability of use not enough would render chattel agent of suit Minimum contacts are established first Then the court checks to see if they are fair and reasonable If there are not many contacts then the quality of contacts can make up for it and establish jurisdiction Minimum contacts for libel cases 0 Keeton v Hustler can sue anywhere where damages arise from defendant s actions there Sue in any state where the magazine is published 0 Calder v Jones can sue if harm was caused in forum state There are not always clear jurisdictional rules it is a exible standard and there are shades of gray The facts of each case must be weighed 0 Choiceoflaw Clause use specified state law in any jurisdiction 0 Burger King Corp v Rudzewicz If the defendant s conduct and connection with the forum state are enough he should reasonably anticipate being haled into court there Also the defendant purposefully avails the privilege of conducting activities within the forum state thus invoking the benefits and protections of its laws Defendant must have deliberately engaged in activities within a state or created continuing obligations between himself and residents of the forum The awareness test allows the exercise of personal jurisdiction as long as a manufacturer has actual awareness that its products are entering a given market Much broader rule than purposeful availment QUASI IN REM JURISDICTION TYPE 2 Allows plaintiff to acquire jurisdiction over the defendant wherever the defendant has property in the forum simply by attaching it Sha er v Heitner It is about personal obligation not ownership of property But the courts power comes from the fact that the location of the property is within the forum state like in Pennoyer v Ne In decades following neff QIR2 was expanding its reach Like in Harris v Balk in which a person was attached as property because he owed a debt So the debt was located wherever the debtor was crazy But is this reasonable Is quasi in rem still a useful and applicable theory in a postint l shoe court That is what Shaffer v Heitner discusses Minimum contacts principle of Int l shoe governs no matter what label you put on it in personam in rem quasi in rem With Quasiinrem you can only gain judgment up to the value of the property So in personam jurisdiction is preferable Quasi in rem is not really an important theory anymore because you d have to establish contacts like in in personam jurisdiction If you were going to have to prove those anyways you would just use in personam because it s better There are very few instances were quasi in rem would come into play QIR property did not have to be related to the law suit But now it does in order to satisfy minimum contacts IN REM JURISDICTION Means against the property Decides ownership of property in regards to the whole world Jurisdiction extends to the property attached Must also satisfy the terms of minimum contacts Must not violate notions of fair play and substantial justice Case regards ownership of a thing Type of Jurisdiction Nature of Suit Source of Power In Personam Personal Obligation Consent Pennoyer PresentServed in Territory Pennoyer Minimum Contacts Int l Shoe Modern Standard In Rem Ownership of Property LocationPresence of Property Quasi in Rem Personal Obligation LocationPresence of Property Presence of the defendant is still sufficient for in personam jurisdiction but not necessary We now focus on minimum contactfair play int l shoe Cases Regarding Personal Jurisdiction a Pennoyer V Neff first personal jurisdiction case establishes needs of presence and consent in due process Largely irrelevant today Fountainhead personal jurisdiction 0386 b International Show vs Washington Minimum Contacts c WorldWideVolkswagen V Woodson Establishing Contacts d Burger King V Rudzewicz Establishing Contacts e McIntyre V Nicastro Stream of Commerce f Goodyear V Brown Specific V General Jurisdiction g Shaffer V Heitner Quasi in Rem TRANSIENT PRESENCE Transient presence p 121 being physically present in the state when served with process is cause for general jurisdiction even if it has nothing to do with subject of the lawsuit Also called Tag Jurisdiction EX you go to Florida for vacation and are served with process in Florida for something that had nothing to do with Florida like a car accident in Texas a Scalia claimed that transience presence was affirmed because it has been historically permitted If we ve done it that way for hundreds of years it must be fair Justice Brennan claims that transience presence was affirmed because the defendant purposefully avails himself to the benefits of the state such as roads medical emergency services and enjoy the fruits of the state s economy NOTICE Basis for Notice It is possible to receive notice in the mail or personally from a place which has no jurisdiction over you like Hawaii It is also possible to have personal jurisdiction and not receive notice You need both notice and jurisdiction 9 0 Service can be given to you delivered in hand It consists of the complaint tells what it s about and the summons commands defendant to appear First you file the complaint with the court and the civil cover sheet Pay filing fee of 400 Court clerk issues summons Then you serve the process and complaint to the defendant 0 Personal Service is the gold standard 0 You can also serve by notice bv publication only if there is no practical way of knowing the identity or location of the party 0 Mullane v Central Hanover Bank amp Trust since the bank did not know the location of all the unknown beneficiaries of a judicial settlement notice by publication was the best they could do However if the bank knows some addresses or could have found them out with due diligence then publication would not be enough 0 Notice has to be reasonably calculated under all the circumstances to apprise interested parties of the pending action and afford them an opportunity to present their objections The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it Mail is usually sufficient to meet constitutional minimum 0 Instance when mail isn t good enough if the person sending the notice knows that it wasn t received Notice is governed by Rule 4 0 Defendant must be served within 120 days after complaint is made by plaintiff so you have time to find them if you have to O 4c Must have a copy of the complaint must be served by anyone who is 18 and not a party and may be made by us marshall or deputy marshall or by a person appointed by the court 0 4e Serving an individual person in the US pg 7 follow state law provided it s not unconstitutional So if a state would allow notice by mail then it s sufficient You can 1 Deliver a copy of the summons to the individual personally 2 Leave a copy of summons and complaint at individual s dwelling or usual place of abode with someone of suitable age and discretion who resides there For a transient person usual place of abode is some place where he spends a significant amount of time among other things listed as home or was present at location when process was served Or 10 3 Deliver a copy of each to an agent authorized by appointment or by law to receive service of process Can someone have more than one dwelling for their usual place of abode YES National Dev Co v Triad Holding Corp You don t have to pick one as THE only place they can be served 0 When serving a corporation or business it must be served to a managing or general agent FRCP 4h Can be the director of sales secretary of director of sales or the president of the company 0 Hypo What if a CEO of a California company came to Texas for vacation and was served with process Is there jurisdiction because the CEO was served No because the California company needs to be served not the person The company now has notice that they re being sued but there is no jurisdiction You can t tag a corporation to get jurisdiction like you could an individual 0 Waiver of service of process rule 4d This is an alternative to service to give up something voluntarily Plaintiff sends a form that tells the defendant they re being sued and that the plaintiff can serve them if they have to Defendant returns signed form in acknowledgment that they re being sued so they don t have to deal with serving process If the defendant doesn t agree then the court can order defendant to pay plaintiff the cost of service You also get more time to file a response if you waive service of a complaint 60 days to respond instead of 21 without a waiver PREJUDGMENT REMEDIES Due process requires an opportunity to be heard but does not require a trial Usually a defendant must receive sufficient advance warning to prepare an adequate defense However under exigent circumstances you can use rule 65 Prejudgment remedies R2 Judgmentrelief that comes before the end of the lawsuit especially imp if time is of the essence 0 To prevent some kind of action 0 Preliminary injunction Rule 65 can be issued on notice to the adverse party and has to have a trial But if that s not fast enough you can get a TRO O Temporary Restraining Disorder TRO issuing without notice and is practically immediate Can sometimes be done ex parte in the presence of one party but not the adversary party Lasts for 14 days no hearing needed and person seeking injunction must post bond as security 0 If it s not an exigent circumstance either bond or prejudgment hearing is necessary preferably both a postjudgment hearing is not okay 11 To preserve property in anticipation of judgment Connecticut v Doehr O Prejudgment attachment of real estate without prior notice This is a way to prevent the judgment from being worthless later on if it cannot be satisfied Attachment is allowed if there is risk of loss of the property if the defendant had notice or under extraordinary circumstances 1 Possibility of abuse from attachment can cause trouble for defendant if plaintiff threatens attachment Defendant now is already under a burden and could lead them to settle to get rid of the nuisance O For attachment Connecticut statute elements 1 Requires probable cause that the plaintiff s claim was valid based solely on what the plaintiff says 2 No bond has to be posted by the plaintiff 3 No hearing beforehand ex parte one sided 4 Postdeprivation hearing after the property has been attached and the defendant hears about it they can come and show that there was no probable cause There is no time reference given to how long this would take 5 Double damages can be awarded to the defendant later if the attachment was wrongful 6 Judge is required to be involved in the proceedings For the attachment to be constitutional What we know from Doehr You need a posting of a bond by the plaintiff at the beginning but there isn t a majority decision so it isn t binding Usually you need a predeprivation hearing You don t have to have pre hearing if there are extraordinary or exigent circumstances Even if there isn t exigency but there are other things like a bond and preexisting property interest plus documentary proof of a contract s case then maybe it may be good enough for attachment SUBJECT MATTER JURISDICTION Subject Matter Jurisdiction about the decisions between state court and federal court in certain jurisdictions 0 Federal courts are courts of limited subject matter jurisdiction They have power specified by Article III of the constitution and not beyond that Presumption against federal subject matter jurisdiction Parties can t confer federal jurisdiction by consent Lack of subject matter jurisdiction also cannot be waived It can be raised at any point so 12 if the defense is raised after the statute of limitations has expired then the plaintiff is without remedy 0 State courts are courts of general subject matter jurisdiction which means they can hear pretty much any kind of case you can name Most federal subject matter jurisdiction is concurrent with state courts If it is then the plaintiff can remove for state to federal court 0 Exclusive federal court jurisdiction very small most kinds of admiralty securities patent and copyright infringement and antitrust Limits on federal subject matter jurisdiction article 111 of the constitution 9 heads of jurisdiction statutes of congress 1331 federal question jurisdiction 1332 diversity of citizenship jurisdiction It is also the plaintiff s burden to establish federal subject matter jurisdiction CONSENT P V SMJ Consenting to P allows the court to have power over you It is a personal right people have However consenting to SMJ doesn t affect anything because you re not changing the subject SM is a structural feature of government that can t be changed by consent It is governed by federalism not state government 0 Personal Jurisdiction if defendant doesn t object then there will be P They can consent to P 0 Subject Matter J urisdiction defendant can t consent to creating SMJ where it doesn t exist even if defendant wants to be in federal court Court is usually the one that brings up whether they don t have SMJ Article III of Constitution dividing line between state and federal power Constitution requires 1 Supreme Court and inferior courts as congress has choice to establish All other courts trial and appellate are simply created because congress decided to The only federal judge required is the chief justice You can t cut federal judges salary and they can t be removed just because you don t like their decisions Serves to protect them and their decisions not to be swayed No elections for federal judges State judges are elected every few years no life tenure 0 Article 3 section 2 Congress can pass jurisdictional statutes that don t go as far as federal SMJ They only have SMJ that congress gives them Article 3 is a ceiling on federal SMJ they can t have more than this but can have less DIVERSITY OF CITIZENSHIP Diversity of Citizenship 28 USC 1332 requires complete diversity Article 3 of constitution requires minimal diversity Matter in controversy also has to exceed the sum or value of 75000 All the people in both parties must be from different states It preserves authority of state courts Also provides an unbiased forum for outof state people 13 0 Louisiana citizen V Texas citizen called complete diversity 0 Louisiana and Texas V Texas not complete called minimal diversity 0 Louisiana V Louisiana no diversity jurisdiction 0 Strawbridge v Curtiss some of the complainants were alleged to be citizens of Massachusetts The defendants were also stated to be citizens of Massachusetts except Curtiss who was a citizen of Vermont The court claimed that jurisdiction cannot be supported in this case because where there is a joint interest each of the persons concerned in that interest must be competent to sue or liable to be sued in those courts Citizenship and resident are not exchangeable terms What does it mean to be a citizen of a state 0 More than residence It is where your domicile is more permanent A person s domicile is the place of his true fixed and permanent home and principal establishment and to which he has the intention of returning whenever he is absent therefrom 0 Domicile requires taking up of residence in a different place AND the intention to remain there To get a new domicile if you did things like change voter registration buy a house getting a job getting a driver s license etc that would be evidence The court looks at the intention to remain there for forever 0 You are born with one domicile and it is hard to get a new one 0 An American citizen domiciled abroad cannot sue or be sued under diversity or alienage jurisdiction Because there is no state citizenship and they are not an alien because they are still a US citizen 0 An alien admitted to the United States for permanent residence is a citizen of the state where the alien is domiciled 1332a4 Mas 12 Perry The general rule is that complete diversity of the parties is required in order for diversity jurisdiction to be obtained No party on one side may be a citizen of the same state as any party on the other side This is the federal law not the law of any state Citizenship for business entities Corporations are artificial entities People of the corporation are not sued if the corporation is this is the principle of limited liability Corporations have entity status meaning that it is its own thing separate from the people that run it and has its own citizenship You have to plead state of incorporation and principal place of business in your case Randazzo v EaglePicker industries Inc Corporations have dual citizenship in both of these places 1 The state of incorporation 14 2 The state of principal place of business refers to the place where the corporation s high level officers direct control and coordinate the corporation s activities Hertz Corp v Friend a This definition is the Nerve Center Test the state in which the corporation has its nerve center or quotbrainquot its principal place of business Where its headquarters are The chosen test b Place of activities test where corporation carries out activities muscle test 0 Total activities test Establishing citizenship for nonincorporated businesses 0 Not seen as separate from the individuals who own them so not subject to the rules of corporations 0 Partnerships are where two or more persons have association as owners of a business for profit A partnership is held to be a citizen of all states in which its partners are members If a partner is a corporation then follow rules for establishing citizenship as in 1332c 1 and then apply those citizenships to the same test as a partnership 0 Labor unions are nonincorporated partnerships I If a labor union has members in all 50 states then diversity jurisdiction cannot exist since they would be a citizen of all 50 states eliminating diversity as an option 0 LLC is a citizen of wherever its partners claim citizenship O Bellville Catering 12 Champaign complaint wrongly alleged diversity of jurisdiction Could the judge just waive SMJ not regarding the lack of diversity NO There can be no subject matter jurisdiction here because they are from the same state so there is no establishment of diversity SMJ can never be waived Miscellaneous Topics 0 Representative suits In case of minor decedent or incompetent court uses jurisdiction of the minor decedent or incompetent not their legal representative Rule 1332c2 0 Class Action Suits citizenship is determined by the citizenship of the class representative not all the class member 0 Domestic Relations Exception for diversity of citizenship Courts may refuse to hear cases dealing with divorce alimony or child custody 0 Probate Exception federal court will not probate or administer an estate but they may still hear cases that arise from probate 15 0 Amount in Controversy Requirement 1332 requires greater than 75000 in dispute Not equal to or greater than just greater than If it s plausible the plaintiff could get more than 75000 even if they end up not getting 75000 then it s okay 0 If there is one plaintiff and one defendant the claims can be aggregated and don t have to be related 0 If there are two plaintiffs and one defendant then the claims cannot be aggregated even if related Claims must be attributed to a single individual I EX my wife and I go on a camping trip We are each shot in the face by a defendant who was hunting We each the plaintiffs have 50000 Can we aggregate plaintiffs to reach the money requirement No they are each separate entities 0 If there is one plaintiff and multiple defendants can you add up sums you expect to receive from each one in order to meet the 75000 requirement even though the claims are not related No 0 If there is one harmclaim but two peopledefendants are jointly responsible then they can be charged together and the money claim doesn t have to be divided between them THIS IS ONLY FOR JOINT TORTFEASORS FEDERAL QUESTION JURISDICTION Federal Question Jurisdiction and Diversity Claims are alternative routes to the court house You only have to satisfy one of them to get into federal court If a case arises under federal law then maybe you could meet federal question jurisdiction Governed by 28 USC 1331 Federal Question the district courts shall have original jurisdiction of all civil actions arising under the Constitution laws or treaties of the US There is no amount in controversy requirement 1 If there is no substantive federal ingredient anywhere in the case then they are not heard by the federal court Torts family law property breach of contracts etc are mostly state substantive law 2 If there is some federal substance somewhere in the case but it doesn t arise under federal law then the case will not be heard because the original claim isn t a federal issue This limits what the court can look at only at the plaintiff s hypothetical well pleaded complaint not at a federal defense Well Pleaded Complaint Rule states that a federal question must arise through a well pleaded complaint taking in only the things necessary for a plaintiff to win One that sets forth only a claim unadorned by anticipated defenses or other extraneous materials This rule doesn t apply 16 to the US Supreme Court appellate division which is why Mottley was eventually heard by the Supreme Court a Louisville amp Nashville Railroad Co v Mottley a plaintiff cannot rely on a federal question that might be brought up in the case The Mottleys anticipated the defendant s defense which had to do with a federal issue However this issue has to be present in the original cause of action b If federal question arises from counterclaim there is no federal question jurisdiction because a counterclaim is not a well pleaded complaint It must arise from the plaintiff s case If there is a federal substantive ingredient in the plaintiff s claim then it is USUALLY heard by federal court Mostly federal law substantive areas environmental health care civil rights intellectual property etc Declaratory J udgment merely declares what the law is doesn t order defendant to do something It is a different kind of relief Declaratory Judgment is a way for the defendant to go on the offensive and become the plaintiff instead of waiting to be sued The wellpleaded complaint is complicated in regards to declaratory judgment because the plaintiff and defendant can switch spots You have to see if the original complaint would have arisen under state law or federal law 0 In Mottley declaratory judgment would arise under state law because it s a breach of contract case So there is no jurisdiction 0 If coercive action that would ve been brought without declaratory judgment can be brought in federal court than the declaratory judgment can be brought in federal court 0 Does not matter who would bring the coercive action as long as one could be brought by one of the parties Injunction coercive relief order telling defendant to not or to do something It is a remedy that will force the defendant to do something The Holmes Rule automatic inclusion If federal law creates the claim then federal law has jurisdiction There is a distinction between federally created and state created claims with federal ingredients 0 EX When the claim arises under a federal issue patent infringement there is federal jurisdiction 0 Ex When the claim is based on state law trade libel but there is a federal ingredient patent infringement there is no federal question jurisdiction most of the time Centrality of Federal Issue of the Claim However there is federal question jurisdiction IF the federal aspect of the case is substantial and contested without upsetting the divisionworkload of 17 labor between federal and state courts Grable Case Also it helps if the government has a strong interest in the federal issue like the collection of delinquent taxes 0 Grable amp Sons Metal 12 Darue Engineering claim involving a cause of action not started by federal statute was tried in federal court under federal question jurisdiction because the state law claim necessarily raised a stated federal law issue disputed and substantial which could be heard without disturbing any congress approved regarding the balance of federal and judicial responsibilities 0 Gunn v M inton His original case arose under federal law Case 2 is about the malpractice of his lawyer this is a state created claim that has a federal ingredient If the federal ingredient would have mattered and been essential to the case then a federal court would be the one to hear it However the key issue is not the federal ingredient but the state claim They claim that even if the federal issue had been raised he wouldn t have won anyways SC rules for no federal jurisdiction SUPPLEMENTAL JURISDICTION A Federal court can have Supplemental Jurisdiction when it can hear claims and issues that don t invoke federal subject matter jurisdiction if it arises from a claim that does have federal subject matter jurisdiction Supplemental Jurisdiction 1367 suppose you have a case with a claim that obviously arises under federal law There is federal subject matter jurisdiction with this claim Suppose this same claim also breached an employment contract which is a state law matter and can t get into federal court on its own Also the plaintiff and the defendant are not diverse So what can we do here File separate claims so they re each in the right court system But that s kind of wasteful and they are related claims Supplemental jurisdiction tells us that the whole case can be in federal court When there are multiple related claims as long as there is one claim that can anchor itself in federal court it can help the other claim get into federal court REMOVAL JURISDICTION Removal J urisdiction for the defendant to remove a case that was originally filed in state court to federal court the case must be one over which the federal courts have subject matter jurisdiction If the plaintiff could have chosen state or federal court then removal allows defendant to choose if they want to be in the federal system or not This is usually a strategic decision Some reasons defendants are likely to remove cases 0 One system might be more generous than another in terms of potential remedies 0 There might be a local bias in favor of the plaintiff 18 0 Federal judges are not elected by locals and are less likely to be swayed by local opinion 0 Defendant may prefer the federal court procedures or believe the federal court has greater expertise 0 Defendant s lawyer may simply have greater familiarity with federal court practice By removing a case to federal court you don t lose any defenses you would have had in state court If removal is improper federal court will remand back to state court Basic test for whether a case can be removed is it the sort of case that could have been filed in federal court to begin with If yes then there is removal jurisdiction It s not a separate category of jurisdiction but rather builds on others Suppose you re a defendant and you want to remove a case What is it you re going to do to accomplish that 28 USC 1446 File a notice of removal name jurisdictional reasons you can remove do it within 30 days of receiving the plaintiff s complaint Cases can be removed to federal court later examples If the initial complaint gives damages later on then it can be removed to federal court later than 30 days This is the amended complaint 1446cB If the initial complaint is only state law and then amended with a federal claim Cases cannot be removed more than 1 year after commencing the action unless plaintiff s acted in bad faith in order to prevent a defendant from removing the action if it is a diversity of citizenship case This does not apply to federal question cases Mumfrey v C VS Pharmacy Inc Mumfrey sues multiple defendants in Texas state court CVS wants to remove to federal court If Mumfrey had not attached the other two individual defendants from Texas then there would have been complete diversity and CVS could have removed to federal court They were joined just to prevent removal 0 Improper Joiner fraudulent joiner court will ignore the presence of those who are spoiling removal Test if the defendant can prove that there is no possibility of recovery against those who are improperly joined If there are multiple defendants and they are all served at different times and a laterserved defendant files a notice of removal any earlierserved defendant may consent to the removal even though that earlierserved defendant did not previously initiate or consent to removal 30 days starts from the last served defendant 28 USC 1441 Governs rules for removal 0 1441b instate defendant rule says an action based on diversity is not removable if a defendant is a citizen of the State in which the action is brought Applies only to pure 19 diversity case If the suit can be brought under Federal question jurisdiction 1331 then case can be removed If the case should not have been removed because the defendant failed to satisfy some requirement for removal other than the subject matter jurisdiction the plaintiff should file a motion to remand to state court Venue USC 1391 Subject matter jurisdiction determines what categories of cases a court system has authority to decide Personal jurisdiction determines whether a court system has power over a defendant Venue determines where within a court system a case can be brought It is primarily a matter of convenience Venue is about geographic location not court system Tells us which district is the correct one Texas has 4 districts Venue in federal court exists side by side with P and both must be satisfied Civil action may be brought in 1391 Diversity of Citizenship Cases 1391 a 1 A judicial district in which any defendant reside if all defendants are residents of the state in which the district located 1391a1 Ex Two different districts of Texas but both defendants are residents of Texas Reside means domicile 2 A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of property that is the subject of the action is situated 1391a2 a There can be more than 1 district in which a substantial part occurred It doesn t have to be a majority but it is also not equated with the minimum contacts test b Bates 12 C ampS Adjusters Inc Substantial test the most relevant evidence collection notice and events are located in New York not Pennsylvania So even though CampS did no business in NY whatsoever there is still proper venue there CampS also had no agency in the letter being forwarded to New York because they intended to mail it to the plaintiff s previous Pennsylvania address This is a personal jurisdiction problem no purposeful availment of the defendant The intention of the defendant is not an issue in a venue case There can be more than one place where venue is proper 3 If there is m district in which an action may otherwise be brought proper venue any judicial district in which any defendant is subject to the court s personal 20 jurisdiction with respect to such action Fallback provision only comes into play if 1 and 2 cannot be satisfied EX if there were defendants from different states that hurt you in a foreign place like Canada Federal Question Cases 1391b 1 Judicial district where any defendant resides if they all reside in the same state 2 Where substantial portion of events or omissions occurred 3 Judicial district where any defendant may be found essentially the same as l39la3 For venue purposes 1391d for a corporation located in a state with multiple districts such a corporation may be deemed to reside in any district in that state within which its contracts would be sufficient to subject it to personal jurisdiction if that district were a separate state If there is no such district then pick the one with the most significant contacts Nonincorporated businesses are treated like corporations for venue 0 For a business or corporation if they are able to be sued under general personal jurisdiction then they are deemed to reside there and there is venue l39lc Exception Even if there is personal jurisdiction over a defendant there may not be a proper venue If defendant was served with process in a state he had traveled to for business there would be P not venue Venue is only determinate on where the defendant resides is domiciled and whether substantial action occurred there FOR CORPORATIONS SMJ corp citizen incorp Principle place of business headquarters Hertz PJ general at home principle place of business Goodyear Venue reside domiciled for individual and subject to P for a corporation Can be general jurisdiction Transfer of Venue 1404 and 1406 Transfer is kind of like removal in that the defendant gets to trump where the plaintiff chose to be Most states permit a transfer is they are unlikely to get a fair trial where it is filed Transferror Court initiating court Venue Proper 1404 Goldlawr 1404 Not 1406 Goldlawr 1406 21 Personal Jurisdiction No Personal Jurisdiction Transfer in federal court is governed by USC 1404a and 1406a 1404 Difference in transferor court in 1404 is a proper venue and in 1406 transferor court is an improper venue In a true 1404a transfer there is only a change of courtroom not a change in law cite to Van Dusen or F erens federal cases 1404 permits transfer to any district where the suit might have been brought True 1404 transfer requires personal jurisdiction and venue in the transferor court 1406 applies if venue is not proper in the place where the plaintiff originally brought suit Case has to be transferred it s mandatory Goldlawr Transfers occur where the transferor could does not have personal jurisdiction This can occur with either a 1404 or 1406 transfer The law does not go with a Goldlawr transfer What if the transferror court lacked personal jurisdiction over the defendant to start with can they transfer the case to where there is jurisdiction Yes under Goldlawr 1404a In deciding whether to transfer courts should look to 1404a convenience of the parties convenience of the witnesses and the interest of justice 14061 if case is filed in improper venue the court shall dismiss or if in the interest of justice transfer EX Assume that both parties don t agree on the transfer Defendant wants a transfer Plaintiff has sued in a lawful location How do courts determine whether a transfer is a good thing to do The court weighs these factors private and public interest factors ease of access to proof access to witnesses and public s interest in resolving local disputes locally etc Is the defendant s location better If the location is better then it should be sent there Forum selection clause is not entitled to dispositive weight in deciding whether to transfer but is a significant factor in the district court s calculus Choice of Law Clause a 1404 is merely a transfer of courtroom and does not change the law that applies You take the law with you if it s a true 1404 transfer There is proper venue and personal jurisdiction in the transferee court 22 0 In a Goldlawr or 1406 transfer the law does not travel with you They will apply the law in the transferee court Re Volkswagen of America Inc in this case a suit was filed by plaintiff in a correct division of Texas It is regarded as a more plaintiff friendly division of Texas Defendant Volkswagen claims someone else was at fault person who hit the car and tries to transfer the case to the northern district of Texas Dallas Most witnesses are all in Dallas except experts aren t in either place most of the relevant documents are in Dallas the accident occurred in Dallas paramedics and hospital and those who witnessed the crash are all in Dallas also the plaintiff now lives in Dallas For mandamus there must be a clear abuse of discretion by the district court not merely a mistake Clear abuse occurs when the district court lacks the judicial power or authority to make the decision that they did 0 Mandamus a judicial writ issued as a command to an inferior court in this case telling them to transfer the case Can also be ordering a person to perform a public or statutory duty 0 Standards of Review whenever the matter is under the appellate court s decision There must be a clear error on the part of the district court abuse of discretion not just the appellate court slightly disagreeing Forum non conveniens common law where courts can refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties The forum is inconvenient for the parties Piper Aircraft Co v Reyna SC case The possibility of a change in law should not be given substantial weight in a forum non conveniens inquiry Unless there was practically no alternative forum if for example Scotland wouldn t even hear the case In this case defendants from the US do not want to litigate in the US but the Scottish plaintiffs want to litigate in the US This is because the US is more likely to award higher damages and the law is more favorable because they will hold the defendants to a strict liability standard 0 When removed under true 1404a the original choiceof law rules still apply California choiceof laws apply even though they are now in Pennsylvania The only thing that changes under a true 1404a is the literal courtroom What would a California state court do Apply its own rules and what they think should apply California chose Pennsylvania substantive law to apply to Piper Pennsylvania probably has the greatest interest in dealing with the suit 0 When a defendant seeks a true 1404a transfer that transfer is simply a change of courtroom and should not change the law that is applied 23 0 When removed under Goldlawr 1404 or 1406 The case never should have been in California to begin with because there was no personal jurisdiction If any other type of transfer than 1404 that means there was something wrong with the suit So the Pennsylvania choiceoflaw would have chosen Scotland law to govern the case 0 Two different sets of laws Pennsylvania and Scotland will cause confusion for a jury 0 The test for forum non conveniens is the gilbert test 0 Plaintiffs choice of forum not given full weight because it s not plaintiff s home forum 0 Alternative forum exists somewhere 0 Where are private interests most satisfied I Where are relevant witnesses evidence investigations located 0 Where are public interests most satisfied I Is the desired forum familiar with the law available 0 Is the forum law patently unfavorable 0 You cannot defeat a dismissal or a transfer based solely on substantive law being less favorable in the alternative forum PLEADINGS This is the first step in litigation In pleadings the plaintiff alleges her claim against the defendant and the defendant responds to those allegations and sets forth any defenses she may have Defendant responds by filing an answer defendant s own pleading which may raise an affirmative defense Then the plaintiff can reply where they get to respond to any new matter The pleading stage is relatively short and gives way to the discovery process during which parties are given broad access to information in the possession of the other parties Pleadings perform 4 functions 1 Puts parties on notice of claims and defenses of opponents 2 States facts that each party believes they can prove 3 Narrows the number and scope of issues needing trial 4 Provides a quick method for resolving meritless claims and defenses Evolution of Pleadings 24 Common Law Pleading dominated by the writ system like a little box your claim fits into very formalized and ritualized process The plaintiff had to claim their case fell under a particular writ like writ of trespass on the case If that single disputed issue did not fit the writ the plaintiff chose at the beginning of the case then the court would dismiss the entire suit and the plaintiff would have to start again by choosing another writ Code Pleading abolished the writ system and the forms of action It was simplified and focused solely on giving notice to the parties and the court Pleadings were now to facilitate a decision on the merits The centerpiece of code pleading is its emphasis on pleading facts in ordinary and concise language without repetition What are the facts that constitute the cause of action However it became more complicated because the courts would say that the facts had either too much detail or too little detail Shives 12 Sample Federal Rules of Civil Procedure Notice Pleading trying to become more simplified Pleadings are designed to give notice and provide a mechanism for ready testing of the legal sufficiency of a claim Instead of pleading facts like in code pleading the plaintiff makes a short and plain statement of her claim showing that she is entitled to relief Dioguardi 12 Burning complaint did not have to necessarily contain facts that could support a cause of action only show there is a claim upon which relief can be granted 0 These different systems have different hurdles at the pleading stage FRCP is supposed to be a low hurdle to get over the pleading stage What are the pros and cons of having a low pleadings hurdle easier for cases to get into court 1 More cases being filed increased burden on courts and more frivolous suits weak claims 2 If there s a low hurdle for the plaintiff to get over then the defendant would be more likely to settle than spend a lot of money on the discovery stage Even if the defendant knew they would probably win A lot of courts think that discovery has gotten way out of hand and too expensive so we should raise the pleadings bar THE COMPLAINT The Complaint when the plaintiff says what the defendant did wrong Rule 8 governs the complaint and it must contain 3 things 1 JURISDICTION A short and plain statement of the grounds for the court s jurisdiction unless the court already has jurisdiction and the claim needs no new jurisdictional support It is essential for the plaintiff to allege that the case is properly within the court s jurisdiction only means subject matter jurisdiction a No requirement of allegation of personal jurisdiction or venue 25 2 STATEMENT OF CLAIM A short and plain statement of the claim showing that the pleader is entitled to relief Must have legal and factual sufficiency a Legal Sufficiencv even though everything the plaintiff says is true the defendant is still not liable EX through claiming a tort that does not exist Defendant could then move to dismiss under rule 12b6 because there is not a claim for relief b Factual Sufficiencv Detail If the plaintiff does not sufficiently establish their claim or include necessary information then they could get another chance to do so under with leave to amend There has to be enough detail to be factually sufficient Courts usually required little detail to make things simpler Dioguardi v Durning Plaintiff doesn t have to plead facts just state a claim which entitles them to relief EX defendant negligently drove her car and injured plaintiff 3 DEMANDPRAYER A demand for the relief sought which may include relief in the alternative of different types of relief In the demand the plaintiff tells the court what recovery she seeks from the defendant Does not have to be for a specific dollar figure and can be stated later in court Can also be in the form of alternative relief injunction specific performance declaratory judgment a Rule 54c if Plaintiff is entitled to more than what they demanded their recovery is not limited to the demand Rule 10 governs form of all pleadings in court i Must state the name of the court title of case smith v jones and identity of document ii Rule 10b party must set forth claims and defenses in numbered paragraphs iii Rule 10c can reference allegations found elsewhere in the document Plausibility PleadingStandard it has to be plausible from the plaintiff s complaint that there is an ability to recover Also the court wants more details of facts not just conclusory statements Facts are harder to allege than conclusions 0 Bell Atlantic Corp v Twombly Twombly did not have proof of a noncompetition agreement and was hoping to get to the discovery stage of the case in order to find evidence Court said that the claim had to be plausible not certainty and not just mere possibility Just pleading parallel conduct legal does not create an inference of agreement illegal Court didn t think good evidence would come out of this and discovery would be very expensive so the case was dismissed O Twombly sets out a higher pleading requirement for antitrust legislation Defines minimum pleading requirement 26 0 Swanson v Citibank her complaint was sufficient to state a cause of action where the complaint identified the type of discrimination alleged culprits and time frame of the loan application Extraneous facts did not serve to plead plaintiff out of her claim 0 The court follows a plausibility standard It is the pleader s responsibility to state a clam to relief that is plausible on its face The plaintiff must give enough details about the subject matter of the case to present a story that holds together The court will ask itself could these things have happened not did they happen The Iqbal Case 0 In this case plaintiff alleges a Bivens claim that defendants violated his 1st and 5th amendment rights by adopting policies that led to his designation as a person of high interest and by subjecting him to harsh conditions of confinement solely because of his race religion or national origin after the 911 attack with no legitimate reason this would have been illegal 1 Court decides to throw outdisregard any conclusions not entitled to be assumed true 2 Consider the facts of the complaint Once you have the facts then you look to plausibility of the right to relief this is a very subjective standard 0 Court concludes that the plaintiff s allegations failed to state a claim and were legally insufficient because the defendants could only be held liable if they rights they violated were clearly established at the time they acted TwomblVIqbal Framework 1 Disregard legal conclusionsdon t plead conclusory allegations 2 Do the facts taken as true plausibly show a right to relief The court assumes that the facts as pleaded are true and then makes their decision from there Even the Michael Vick pleading facts are taken as true and then the court determined which claims could lead to legal action stealing yes copyrighting a name no PLEADING SPECIAL MATTERS Rule 9 a couple instances which require heightened pleading 0 9b Fraud or mistake claims are disfavored and have a heightened pleading standard Since fraud turns on state of mind and intentional misrepresentation a lot of them can get to trial and be expensive Also it can hurt the defendant s reputation Standard of proof must be higher clear and convincing be beyond a mere preponderance 27 0 9c Must be stated with particularity pleadings should include who what where when how but not why 0 9g Special damages if an item of special damage is claimed it must be specifically stated This means an unexpected or unusual consequential damage Other causes of action requiring heightened pleading requirements not mentioned in Rule 9 0 Securities claim 0 Civil rights legislation overturned by Leatherman o Leatherman v Tarrant County held that if rule 9 did not require specific pleading of a certain type of claim then the court could not interpose a higher standard of specificity 0 Antitrust Legislation Twombly Pleading Inconsistent Facts and Alternative Theories 0 McCormick v Koppman Mrs McCormick s husband died in a car accident One theory claimed he was free of fault and one theory claimed that he was drunk She sues the other driver and the bar dram shop liability Both of these cannot be true because they are inconsistent theories Under modern practices she is allowed to plead these inconsistent theories instead of suing each defendant separately There must be some basis to believe that your claim is true Since she cannot know the truth since her husband is dead she can claim both 0 Rule 8d3 a party may state as many separate claims or defenses as it has regardless of consistency Can be plaintiff or defendant DISMISSALS Rule 41 governs dismissals of complaints 0 Rule 41ga2g12 Voluntary Dismissal by the plaintiff plaintiff voluntary withdraws their complaintdrops the case 0 Can be done without a court order if done before the opposing party serves an answer or motions for summary judgment 0 Signed by all parties who have appeared 0 Dismissed without Dreiudice means that the plaintiff can reinstate the case 28 0 Dismissed with prejudice if plaintiff has previously dismissed any action based on the same claim However if the 2rld dismissal is by a stipulation of the parties then it is not dismissed with prejudice I A dismissal with prejudice or on the merits bars the plaintiff from bringing the claim again Rule 41 b2 is involuntary dismissal Link v Wabash 0 Plaintiff fails to prosecute defendant can move for dismissal 0 Plaintiff fails to comply with FRCP or court order 0 Operates as adjudication on the merits dismissed with prejudice DEFENSES AND OBJECTIONS TO COMPLAINT Defenses go in the answer but there are some defenses that can be raised by motion but whatever you do Rules 12b25 absolutely have to stated in the defendant s 1st response or they are lost Governed by Rule 12 defendant has several options in response to the plaintiff s complaint 1 2 3 4 5 6 7 Motion defendant can raise any of seven specific defenses from Rule 12b on motion or responsive pleadings If a motion is filed it s considered the answer Answer You can challenge the facts in the complaint EX I didn t do it Rule 12a must have an answer within 21 days of service or 60 days if you waived service Plaintiff has 21 days to reply to answer Challenge legal or factual sufficiency of the complaint it doesn t matter if I did it because it isn t a tort Jurisdictional or Procedural ProblemDefect PJ SMJ Venue Service of Process Affirmative Defenses eX statute of limitations or some other legal reason like you made the contract when you were 15 or under duress Yes but Rule 8 c 1 a whole list of affirmative defenses Incomprehensible Complaint rule 12e motion for a more definite statement Made to strike at unintelligibility Rare You can just not show up Default J udgmentl this lets the plaintiff get judgment in their favor Then when they come after you to satisfy the judgment you can contest the jurisdiction of the ruling court However if they find that the original court had jurisdiction over you then you cannot contest any of the facts because they ve already 29 ruled against you VERY RISKY If you have a great jurisdictional argument and practically no argument against the merits of the case then this might be a good idea 35 are defenses of some sort how to present defenses rule 12b every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required But a party may assert the following defenses by motion lack of SMJ lack of P improper venue insufficient process insufficient service of process failure to state claim upon which relief can be granted and failure to join a party under rule 19 0 You can le these as a motion or just answer Why would you do one or the other Most of the answer is just engaging the facts and either admitting or denying some facts If you file an answer then you have to admit whether you did something wrong or not If you file a motion then you don t have to admit to the wrong If you can file a motion then you probably would want to A defendant can either answer or bring a motion in response to a complaint 0 A motion is a request for the court to order something such as dismissal of a case 0 An answer responds to allegations of the complaint and may add new matter as well They are documents setting forth legal and factual contentions of the parties Rule 121g joining motions 0 Right to join a motion under this rule may be joined with any other motion by this 9 rule 0 Ex you can claim no jurisdiction m failure to state a claim 0 A party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion if you can make a motion you cannot make another one later If any defenses in 12b2 5 are omitted from the motion then they are lost 0 Exceptions 12h1 defines waiver of 25 defenses by omitting it from an earlier rule 12 motion or not including in any motion or in a responsive pleading or amendment allowed as a matter of course I B25 use it or lose it I Bl 6 and 7 can be used whenever SM is never lost and can stated at any time Baldwin 12 Iowa State Traveling Men s Association under the principle of res judicata once the D s motion was denied in Missouri court he was bound by that ruling He was not then allowed to raise the same issue in another court D could have fought the case in Missouri and raised the 30 issue on appeal but instead chose to raise the same issue in Iowa Therefore the Missouri court s ruling is binding Plaintiff lsi Eomlaint With Leanne Tm men n welr Rule 12 Motion D Grant ew Discover y Em A special appearance allows the defendant to appear in a forum for the sole purpose of contesting in personam jurisdiction Federal Rule 12 abolished the distinction between general and special appearances in federal court by allowing the defendant to raise several defenses simultaneously with an objection to personal jurisdiction Rule 12c motion for judgment on the pleadings where the plaintiff thinks they can win just based on what they asserted in their complaint and how the defendant responded Rule 12b6 motion is to dismiss for failure to state a claim 0 If facts undisputed can seek judgment as a matter of law 0 Summary judgment under rule 56 also available Rule 12f is a motion to strike get rid of case now rather than later ADMISSIONS AND DENIALS 31 The defendant can do two things in her answer 1 respond to the allegations of the complaint and 2 raise new matter through an affirmative defense In all cases she will do the former In most cases she will probably do the latter as well There are 3 possible responses to the various allegations of the plaintiff s complaint 1 Admissions 0 If you don t address some part of the complaint or you forgot to then that is considered to be admitted SilenceNonresponsiveness is deemed as assent Admissions serve to establish undisputed facts on which there is no need for trial Rule 8b5 a party that lacks knowledge or information suf cient to form a belief about the truth of an allegation must so state However this defense cannot be used if the defendant has reasonable access to the information or if it is a matter of public record or general knowledge Rule 11 b By filing something in court you are certifying that to the best of the person s knowledge information and belief formed after an inquiry reasonable under the circumstances Defendant has to at least try to figure out whether something happened or not They cannot just ignore it Denials also must fairly respond to the allegations and not plead contrary facts Defendant can also claim that the plaintiff is alleging a legal conclusion Be careful Claim that the legal conclusion to the extent that it is a legal conclusion does not require a response 2 Denials Serve to establish facts which are in dispute Give defenses if any a list of affirmative defenses in Rule 8c1 and defenses in Rule 12b 12b defenses can be asserted by motion Most courts believe that the Twombly and Igbal high standard does not apply to defenses plausibility Defendant s try and include a lot of defenses because they don t want to lose them later and only have 21 days to respond to complaint 0 General Denial Rule 8b3 is a very short pleading in which the defendant denies every allegation of the complaint Can only be used if the defendant can deny in good fait all allegations of the complaint so should be used with caution In federal practice this is almost never used 0 Qualified General Denial for instance defendant admits the allegations of paragraph 5 of the complaint and denies each and every other allegation of the complaint 32 0 Specific Denial responding to each paragraph of the complaint is a common practice Allows one to accept or reject the individual numbered allegations set out in the complaint You can deny a paragraph rather than the whole thing 0 Ne ative Pre nant can occur when your denial is too literal Problems with literal denials and negative pregnants are hypertechnical and most federal courts will construe such allegations as denials Defendant did not drive her car negligently down main St on that night is pregnant with the accusation that the defendant drove negligently at some other point in time Denial for Lack of Knowledge or information is that a party lacks knowledge to form a belief about the truth of an allegation It cannot be used if the defendant has reasonable access to the info or it is a matter of public record or general knowledge Works as a denial Affirmative Defenses these are required to be raised in the answer by rule 8c1 Affirmative defenses are a new set of facts upon which the defense is premised Preclusion in an affirmative defense Counterclaims is against the plaintiff I am not liable but plaintiff owes me 0 Rule 7a If D files a counterclaim then P files an answer to that O Complaint answer and counterclaim answer to counterclaim CrossClaim brings in another defendant DEFAULT Failure to Respond if a defendant fails to respond they may find themselves in default Default is just a simple ministerial notation on the court s docket sheet that the defendant has failed to plead or otherwise respond in time The plaintiff cannot obtain money or other relief on the basis on default Instead the plaintiff must get default judgment according to Rule 55 which is enforced like any other judgment How much can the plaintiff get in a default judgment The plaintiff can t get more than what was requested in the pleading Rule 540 0 Default Judgment can be entered by the clerk if the sum is certain rule 55b1 Otherwise the court has to enter the amount for default judgment 55 b2 ex pain and suffering not specific I If a person has ever showed up they must be given notice Is Personal Jurisdiction defense preserved 33 1 D files 12b6 motion to dismiss and it is denied by the court D files an answer asserting personal jurisdiction defense No 12g2 2 No motion is filed D files answer asserting P as a defense Yes because it is asserted in the first answer 12b 3 No motion is filed Answer without P as a defense No must be in the original pleading If you did 3 how could you later get PJ Amendments AMENDED PLEADINGS Rule 15a1 party can amend within 21 days of service or if a responsive pleading is required 21 days after service of a responsive pleading or service of motion under rule 12be or f 0 No permission is needed to amend pleading within this time period Matter of course 0 When you can t amend as a matter of course you either have to get the other party s written consent or the court s leave The court should freely give leave when justice so requires 152 After the plaintiff files an amended complaint how long does the defendant have to respond 14 days or the original 21 days whichever is longer 15a3 Variance 15b is only used when there is a variance between the pleading and what was presented at trial Surprises are bad and the court will take prejudice of opposing party into consideration Can be amended if objected to if not objected to then keep on going Rule 151c2 1 relation back rule which deals with amended pleadings and statutes of limitations 0 Relation back is to pretend the claim was there all along 0 Rule 15c1B if the amended claim that arises out of the conduct transaction or occurrence originally set out in original pleading 0 If it arises out of the same transaction then it related back 0 Rule 15c1C the amendment changes the party or the naming of the party against whom a claim is asserted O Allowed if 15c1B is satisfied and it doesn t prejudice proceedings i if the new party receives such notice of the action that it will not be prejudiced in defending on the merits and 34 ii if the other party knew or should have known that the action would have been brought against them but for a mistake concerning the proper party s identity 0 Marsh 12 Coleman plaintiff is attempting to amend his complaint after the statute of limitations has run Court rules that he cannot because his amended claim does not relate back to the filing of the original complaint Rule 15c1A and B Not the same stream of facts Fraud complaint doesn t relate back to firing complaint Incident 9 Lawsuit Filed 9 Statute of Limitations Expired 9 unrelated new claim 0 Amendments that are attached after the statute of limitations has run will relate back if they only esh out the factual details change the legal theory or add another claim arising out of the same transaction occurrence or conduct If it relates back then it will be treated as if it was in original complaint Relation back is denied those amendments which are based on entirely different facts transactions and occurrences SANCTIONS Rule 11 trying to deter and punish frivolous litigation If there is a problem with frivolous lawsuits there are multiple ways the court can deal with it You can have a higher or lower hurdle for the pleadings stage Too high knock out a lot of suits too low a lot of bad cases let in Instead of raising the hurdle at the pleadings stage you could leave it low and let more cases in and just sanction them later for bringing a frivolous suit Plaintiff could get a settlement even if there is nothing to the case blackmailish because discovery is so expensive Average discovery for plaintiffs is 15000 and for defendants is 20000 about 3 of the amount at stake in the litigation History Rule 11 applies to basically everything that is filed except for discovery You want to have sanctions to punish bad conduct but don t want to always punish iffy cases When Rule 11 was lax bad faith was the standard which made it easy to prove that you acted with an empty head but a pure heart Litigation got out of hand and there were too many bad cases coming in So in 1983 rule 11 was strengthened perhaps too much In particular court was required to impose sanctions if they found a violation of the rule Now we are working under the 1993 middle of the road version of rule 11 serves as an access to justice and encourages zealous advocacy There are two parts to rule 11 1 The standard of conduct what are the standards attorneys are being held to Representations to the Court must follow these rules llb14 1 It is not being presented for any improper purpose such as to harass cause unnecessary delay or needlessly increase the cost of litigation 2 The case has to have some basis in law 35 3 The factual contentions must have evidentiary support and 4 The denials of factual contentions must be warranted on evidence of are reasonably based on belief or lack of information Model Rules of Professional Conduct p 348 0 A lawyer cannot fail to disclose to the legal authority a directly adverse lawruling to the position of the client and not disclosed by opposing counsel 0 A lawyer also cannot offer evidence that they know to be false 2 Mechanics for imposing the sanctions for violating that conduct Rule 11c in general the court may impose sanctions if they determine rule 11b has been violated which says you have a duty to disclose precedent Court may impose sanctions on attorney law firm or party that violated the rule 11c 0 11c2 A motion made separately from any other motion that describes the specific conduct that violates 11b can be raised but cannot be filed or presented to the court if the challenged paper claim defense contention or denial is withdrawn or corrected within 21 days after service or within another time the court sets This gives the party an opportunity to fix the problem 0 Marlin v Moody Must give opportunity to respond before imposing sanctions The party that wants to seek sanctions sends the document to the other party but doesn t send it to the court Like a warning shot if you don t drop this suit then I ll file this motion with the court This gives the sanctionable party a way to fix things before it gets filed with the court In this case the court granted summary judgment and on its own determined that sanctions were necessary sua sponte I 1 c 3 Order to Show Cause the court is required to first order the attorney law firm or party to show cause why conduct specifically described in the order has not violated Rule 11b They should be able to defend themselves Court could not make the plaintiff pay the defendant s legal fees 11c3 limited to non monetary sanctions or monetary penalty payable to the court You can have a monetary sanction to pay attorney s fees but only if there is a motion for sanctions filed which there wasn t Rule 111c2 5 limitations on sanctions the court must not impose a monetary sanction against a represented party the client for violating 11b2 which is making frivolous legal arguments Snapshot rule be sure when you decide whether sanctions are appropriate to use the snapshot rule Assess contentions of the plaintiff when the case was filed What are the facts that are known at the time not later in the proceeds Liability is assessed only for a violation existing at the moment of filing 36 0 If the claim is kind of iffy when you file but you have some kind of factual basis or reason to believe it then you re okay But you can t keep presenting the document to the court once you find out there is no basis 11b prelude Discovery Discovery serves three purposes 1 Permit preservation of evidence that might be lost before trial 2 Provide mechanism for narrowing the issues in dispute between the parties 3 Permit parties to gain more information about their own and the other side s case a This eliminates the surprises for a more just result b Allows parties to learn well in advance what evidence the other side has in support of his claim PRO The discovery rules were intended to make a trial less a game of blind man s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent Also better knowledge of the other side s evidence may also lead to quicker and fairer settlements of dispute You may have to turn over evidence that could hurt your case CONS Discovery can be expensive and time consuming greatest concern today Moreover many lawyers and judges believe that discovery is increasingly used as a weapon rather than an information gathering mechanism The scope of discovery The general scope of discovery is broad Rule 26b the scope of discovery is anything not privileged that is relevant to party s claims or defenses is potentially discoverable The evidence itself doesn t have to be admissible to be discoverable if it could lead to other things that are admissible in court Discoverv has 5 traditional devices or tools for acquiring information Rule 26a1 required initial disclosures rule a What you must provide to the other party Requires parties to disclose all information they may use to support their claims or defenses without request 1 Rule 30 31 Depositions a A witness is placed under oath and responds to questions in much the same way that a witness testifies at trial Unlike a trial at a deposition there is no judge present only the witness lawyers and court officer Anyone with discoverable information can be disposed Presumptive limit of 10 depositions per side 37 Corporation must produce the person who is most capable of answering the questions 2 Rule 33 Interrogatories a Party may send to any other party written questions that require a written response under oath Cannot send nonparties interrogatories Parties required to provide facts reasonably available to them Presumptive limit of 25 Generally prepared by attorneys 3 Rule 34 Production of Documents and Things a Permits a party to require another party to produce for inspection copying or testing all relevant documents or other tangible things Respond within 30 days 4 Rule 35 Medical Examination a Used when you can show good cause that the mental or physical condition of a party is in controversy The court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner Requires a court order 5 Rule 36 Requests for Admissions a Used to determine what issues are and are not actually in dispute Admitting or denying facts the application of law to fact or opinions and the genuineness of any described documents Rule 26f discovery planning conference jointly prepare a report of the conference to give to the judge and then judge holds a hearing under rule 16 Determines how long discovery lasts United Oil Co v Parts Associates 1116 standard of relevancy at the discovery stage United wanted info as to past claims regarding similar chemicals and products used by Parts not just the ones that caused the injury United settled Are these other types of things relevant or not 0 Definition of relevant according to Federal Rules of Evidence evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence 0 Like does the defendant know that their product is dangerous Background claims can prove it is more probable that the defendant knew of the potential dangerous consequences of their product 0 Plaintiff has the burden of proof to demonstrate threshold relevance of discovery requests Court ruled in favor of the plaintiff that discovery of past litigation or claims related to similar chemicals and products causing different injuries was permissible 38 It is the widely accepted view that courts have permitted discovery of other litigation where it involves 12 the same or similar claims arising from 2 the same or similar products at issue Limiting Discovery Rule 26c ways the court can limit discovery The court may for good cause issue an order to protect a party or person from annoyance embarrassment oppression or undue burden or expense including one or more of the following A Forbidding the disclosure or discovery B Specifying terms including time and place for the disclosure or discovery C Prescribing a discovery method other than the one selected by the party seeking discovery D Forbidding inquiry into certain matters or limiting the scope of disclosure or discovery to certain matters E Designating the persons who may be present while the discovery is conducted F Requiring that a deposition be sealed and opened only on court order G Requiring that a trade secret or other confidential research development or commercial information not be revealed or be revealed only in a specified way and H Requiring that the parties simultaneously file specified documents or information in sealed envelopes to be opened as the court directs Presumptive limit on requests for discovery 10 times Hearsay Evidence comes not from the knowledge of the witness but from mere repetition of what the witness has heard other say Hearsay is generally inadmissible What is privileged material The confidential communications between lawyer and client doctor and patient priest and parishioner and husband and wife are considered privileged It is only the communication itself that is privileged not the underlying facts So you can t ask what their husband said about something but can ask about that something Attorney Client Privilege basic def protects confidential communications between an attorney and a client for the purpose of obtaining legal advice 0 Has to be confidential not open like in an elevator at the public courthouse 0 What are communications Things people say to each other are privileged not the facts Documents themselves pertaining to the case do not become privileged just 39 0 because the attorney has them He would still have to turn them over But a letter the client writes to the lawyer asking about his chances in court would be privileged Does not include conversations with 3rd parties Unless there is a translator EX language barrier between attorney and client If client is a big corporation then who in particular is the client Only the CEO or the board or everyone Within corporation attomeyclient privilege extends to where communication was needed to supply a basis for legal advice concerned with matters within scope of employee s duties and was considered confidential within the corporation Upjohn v United States Purpose has to be for legal advice not business advice Reason for attorneyclient privilege society will be better off if people can seek good advice from lawyers you have to be able to trust your lawyer to divulge everything Problem with attorneyclient privilege is inadvertent disclosure when the other side finds things out that were supposed to be privileged Usually happens by accident but even if information was turned over accidentally it is still no longer privileged Information related to what was turned over is also now not privilege Attorneys that work in states with this kind of law spend tons of money to make sure this doesn t happen Fix to inadvertent disclosure rule 26b5B freezes things where they are Receiving party cannot act on information yet and producer presents information to the court for a determination of the claim Court could generally treat the information as if it s still privileged and just pretend it didn t happen as long as the party that turned the stuff over took reasonable steps to prevent it from happening How does one claim privilege or work product protection 0 Rule 26b5A when a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trialpreparation material the part must Expressly make the claim like attorney client privilege or work product doctrine and Describe the nature of the documents communication or tangible things not produced or disclosed and do so in a manner that without revealing information itself privileged or protected will enable other parties to assess the claim If the privilege is not claimed it can be viewed as a waiver Courts generally refuse to invoke this remedy without a showing of bad faith or prejudice 40 Work Product Doctrine a party may not discover documents and tangible things and stuff the attorney remembers that are prepared in anticipation of litigation or for trial by or for another party or its representative 26b3A 0 Exception if it is otherwise relevant under 26b1 not unduly burdensome or if the party shows that they have substantial need for the material and cannot otherwise without undue hardship like if one attorney deposed a witness who has since died then that work product is discoverable What would this not protect Things not done in anticipation of litigation like a work product report that the company always does regardless of possible litigation Done in the ordinary course of business B Protection against disclosure if the court does order discovery of those materials it must protect against disclosures of the mental impressions conclusions opinions or legal theories of a party s attorney or other representative concerning the litigation Hickman 12 Taylor defendant s lawyer privately interviewed four survivors of the tug boat crash and took their statements with an eye toward anticipated litigation A year later plaintiff requested defendant to disclose these statements including written and oral copies exactly Defendant refused to turn over the interviews There is no reason the plaintiff s attorney could not have done the same thing as the defendant s attorney freeloading Was the defendant correct in believing that this material was not discoverable Yes An attempt without necessity or justification to secure written statements private memoranda and personal recollections prepared or formed by an adverse party s counsel falls outside the arena of discovery The policy underlying the work product privilege is the necessity for the lawyer to investigate all facets of the case and develop his own theories without fear of having to disclose his strategies or information that is unfavorable to his client Also this would create the situation of attomev as witness Plaintiff is asking the attorney what the witnesses told him and what he remembers exactly could be biased This is not supposed to be the attomey s job and the court does not like this 41 Summary J udgmentAdjudication Without Jury After parties have exchanged the information is there still a need for a trial When the parties agree on the facts and the dispute is entirely one of law there is no need for a trial or a jury Rule 56 authorizes the court to enter judgment whenever it appears that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law 0 Facts In a car crash whether the defendant was wearing his glasses is relevant but whether the defendant was wearing clean underwear is not What relevant facts do we need a trial for How disputed must they be 0 Only relevantmaterial facts and genuine disputes of fact call for a trial 0 Material factual dispute relevant to the outcome of the case 0 Genuine factual dispute when reasonable jury could come out either way 0 There are two situation where summary judgment is appropriate 1 all parties agree on facts and the dispute is entirely about the law and 2 parties disagree about the facts and there is a genuine dispute of material fact but one side has so little evidence that no reasonably jury could find for that side The judge is to assess the evidence and if he insures that it is at least plausible and capable of being accepted by a rational fact finder then there is no summary judgment and the case goes to trial 0 Rule 56g c a party asserting that a fact cannot be genuinely disputed must support the assertion by A materials in the record including depositions documents elec Stored info affidavits or declarations stipulations admissions interrogatory answers or other materials Can use the other side s complaint but not your own Hypo Problems on Summary Judgment a Plaintiff says defendant ran a red light and caused a crash Defendant moves for summary judgment and submits the affidavit of a witness who says the light was green 1 Plaintiff responds by pointing to the allegation in her complaint that the light was red Grant Summary Judgment for D own allegations are not enoughevidence 2 Plaintiff responds with an affidavit of a witness who says the light was red No summary judgment Affidavits are evidence you are swearing that what you re saying is true under penalty of perjury There is now evidence on both sides b Defendant moves for summary judgment and submits affidavits of 5 witnesses who say the light was green 42 1 Plaintiff responds with an affidavit of 1 witness who says the light was red Possibly Summary Judgment depends on whether or not the Judge thinks the 5 witnesses were more credible than the 1 Could be No Summary Judgment if there is still a dispute Jury could believe the 1 person over the 5 2 Plaintiff responds with her own affidavit stating that she saw the light and it was red Probably no Summary Judgment It is possible that a reasonable jury could believe plaintiff Goes to credibility What if it was affidavit against circumstantial evidence No Summary Judgment Nothing necessarin wrong with circumstantial evidence In Dyer v MacDougall there were three affidavits D 2 witnesses against the plaintiff who could offer no admissible evidence to counter So the court granted summary judgment for the defendant But what if the jury did not believe the Defendant and his 2 witnesses Then it would be 00 but the defendant would still win as a default because the plaintiff bears the burden The burden of proof for summary judgment must meet the requirement for a jury verdict i By preponderance of the evidence then summary judgment must be granted on that ii By clear and convincing evidence summary judgment must use that standard iii Anderson 12 Liberty Lobby Lobby brought suit against Anderson for defamation claiming D was a neoNazi group There is a different standard of proof in this case liberty lobby has to show that the reporters acted with malice not just that the story was wrong a Liberty Lobby has to prove clear and convincing that the reporters acted with actual malice like around 75 Whereas normally with a preponderance of the evidence the plaintiff only has to prove 51 or more b There is a higher standard of proof for a libel case so it is more likely that a jury will rule in favor of the defendant Court says that this higher standard of proof not only applies at trial but also at the summary judgment stage There must be some evidence beyond the pleadings to have summary judgment Summary judgment must pierce the veil of the pleadings Cannot grant summary judgment on statements in pleadings motion for that Rule 12b6 Initial Burden Burden of establishing the nonexistence of a genuine issue is on the moving party for summary judgment It must meet rule 56c burden of production i Moving party may submit affirmative evidence that negates an essential element of nonmoving party s claim 43 ii Moving party may demonstrate to the court that the nonmoving party s evidence is insufficient to establish an essential element of the nonmoving party s claim iii Moving party does not need to support its motion with affidavits negating the opponents claim Celotex Corp v Catrett plaintiff killed by asbestos wife sued Defendant has two options for summary judgment 1 they could present their own evidence of nonexposure to the asbestos or 2 the defendant could show that the plaintiff lacked evidence For example the defendants could pose an interrogatory to the plaintiff telling them to state all reasons they believed they were exposed to asbestos and if the plaintiffs were not able to produce any evidence then there would be summary judgment for the Defendant However defendant cannot merely say plaintiff has no evidence prove me wrong After filing a motion for summary judgment the moving party usually the defendant must either 1 Show their own evidence negating the other side s case or 2 Show the other side lacks evidence 2 is a promising approach for the defendant not the plaintiff a Then the other side responds to the motion for summary The opposing party must present evidence showing a genuine dispute In cases which mainly turn on documents it should be easier for one side to get summary judgment For con icting testimony cases you usually need a jury to make the decision What about videotape cases Scott v Harris how much force can the police use to arreststop someone The law says a reasonable force Reasonableness deals with the amount of force and the risk the person is posing to the officers and others the public If the force was deemed to be unreasonable then there could be no summary judgment because there would be a genuine dispute In this case because the officer s bumping the back of Harris car was reasonable they granted summary judgment for the officer What about audio recordings Visual evidence is stronger than audio evidence Cable 12 City of White House court rules there is a need for trial in this case Plaintiff s testimony was not blatantly contradicted by the audio recording even though the recording supported the defendant s version of events It was possible that audio could not have captured everything Just because something isn t on the tape doesn t mean it didn t happen Blue Bus HYPO 44 Undisputed evidence Plaintiff gets run over by bus on the highway 80 of the buses belong to the Blue Bus Company Both sides cross motion for summary judgment because they both think they are entitled 1 SJ for Plaintiff it is more likely than not 80 that D is responsible 2 SJ for Defendant plaintiff lacks sufficient evidence 3 SJ for Neither let a crosssection of the public decide rather than a judge What is trial good for Resolving genuine factual disputes If you get to trial and then realize there is no dispute you can move for a directed verdict Jury Selection 0 7th Amendment guarantees right to a trial by jury in federal court Doesn t apply in state court though most states provide juries Did anyone ask for a jury trial Someone has to ask for it Rule 38ng trial by jury must be demanded within 14 days of the last pleading If not asked for then waived 0 Must be at common law over 20 and the case before us now must be one that 1971 would have had a jury trial for Depends on whether the case was common law jury or equity no jury Money damages jury injunctions no jury 0 Federal juries must represent a crosssection of the public 0 Jurors summoned for duty are called the m Selection from the venire is called voir dire Purpose of voir dire is to gain information about jurors Bias knowledge opinions about the case Jurors can be struck if they have a close connection with any of the parties or witnesses or fixed opinions struck for cause 0 Jury size set by rule 48 no smaller than 6 no larger than 12 Unanimous verdict required regardless of size Preemptory Challenges allow parties to strike jurors before case without cause Don t have to give a reason or explain why In federal court and civil cases you get 3 preemptory strikes per side However there are certain instances where this cannot be done like if it was a decision based on race Baston 12 Kentucky or gender JEB 12 Alabama JEB 12 Alabama preemptory strikes were sexbased they removed all the male jurors to make the pool more sympathetic Court rules this is a violation of the equal protection clause particularly where the discrimination serves to ratify and perpetuate invidious archaic and overbroad stereotypes about the relative abilities of men and women Court rules that to strike someone based on race or gender violates the equal protection clause 45 However there are some categories that are totally fine to discriminate based on economic wealth job political affiliation PostTrial Motions 1 Judgment as a Matter of Law Governed by Rule 50 Directed Verdict if the court finds that there is insufficient evidence it may decline to submit to a jury and enter a direct verdict O Called a motion for judgment as a matter of law J MOL 0 If a motion for J MOL was made before submitting to jury you can make motion for renewed judgment as a matter of law to have the court make a judgment notwithstanding the verdict Judgment notwithstanding the Verdict J NOV once the jury comes back with the decision the judge at this point could rule as a matter of law if there is insufficient evidentiary support for the verdict Also called the renewed motion for judgment as a matter of law This has to be asked for after you ve asked for a directed verdict you can t just wait until the jury comes back and ask for J NOV Rule 50b Standard for granting J MOL amp J NOV same standard for both could reasonable minds differ If at any point in the litigation the court believes reasonable minds could not differ then they can enter judgment This is the same standard as summary judgment Only available when evidence is so weak no reasonable jury could find for that side When do vou file a motion Plaintiff presents overwhelming evidence in her favor At the close of the presentation of her evidence Plaintiff moves for J MOL No not matter how overwhelming the evidence because you have to hear the defendant s side too Rule 50a1 0 After defendant presents then D could motion for J MOL and get it After case has been submitted to the jury but before a verdict has been returned defendant moves for J MOL No too late Rule50 a 2 must be done before it has been submitted to the jury Must cite law and evidence during your motion for J MOL not simply say plaintiff just hasn t proved her case 46 If neither side moves for J MOL the judge by herself cannot overturn the verdict afterwards even if there was insufficient evidence Motion had to be made before for the judge to take the case away from the jury O The side that is the target of that motion should have had a chance to fix up their case before it is submitted to the jury Motion must be before submission in order to facilitate fairness to both parties 2 Motion for a New Trial Standard for a new trial is clear weight of evidence Jury has made its decision against the clear weight of evidence New trial can be given even if there is sufficient evidence to preclude J MOL This is a lesser standard than J MOL it s a doover 0 Governed by Rule 59 gives a doover if it is clear that the jury got it wrong against the clear weight of the evidence Must be made within 28 days of judgment Can be done sua sponte rule 59d Reversing denial of new trial is rare and requires a complete absence of probative facts to support the conclusion it must be an abuse of discretion from the court 0 Lavender v Kurn railroad switch tenderer is found lying dead on the ground in the rail yard There are two possibilities 1 P position a mail hook is hanging off the train and hits decedent in the back of his head or 2 D position he was murdered by an unknown assailant Both sides have reasonable evidence presented 0 Whenever facts are in dispute or the evidence is such that fairminded men may draw different inferences a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference 0 So since the jury returned a verdict for the plaintiff it cannot be reversed because there may be some conjecture involved D s evidence should not be credited over P s evidence New trial can be granted on misconduct by counsel or other unfairness because of newly discovered evidence Even a motion on the grounds of new evidence must be made within 28 days But a party can move for relief under Rule 60b2 if they discover new evidence and motion is filed within one year of judgment A court can also grant a new trial if the size of the judgment shocks the conscience of the court 0 Court can grant remmittur instead of a new trial Court offers lower settlement as alternative to new trial If rejected then a new trial commences 0 Additurs are not permitted by federal law 47 Dadurian v Underwriters at Lloyd s ofLondon defendant needs to prove that Dadurian is lying about buying and insuring 233000 worth of jewelry from Lloyds Should the court have issued a J NOV after trial court returned verdict for Plaintiff No but there are still disputed facts which warrant a completely new trial The court is reluctant to direct a verdict for the defendant when they bear the burden of proof OTHER TECHNIQUES FOR CONTROLLING J URIES 0 Admissibility of Evidence 0 Challenging admissibility of evidence so jury never hears some things 0 Defendant s criminal record is never admissible 0 Sometimes expert testimony is inadmissible 0 Jury Instructions 0 Judge instructs jury as to what applicable law is and jury has to apply that to the facts 0 Judge identifies elements of each claim or defense explain which party had burden of proof and what the burden of persuasion is 0 Errors in jury instruction are a common basis for appeal and reversal 0 Form of the Verdict Rule 49 0 Rule 49a allows for special verdicts by which the court asks the jury to decide one or more specific factual questions but not the bottom line of who wins or who loses 0 Rule 49b allows for general verdict combined with one or more specific questions 0 Juror Misconduct 0 Generally affidavits of jurors can t be used to impeach verdicts however recently there have been exceptions Iowa Rule is based on differences between extrinsic and intrinsic in uences 0 Extrinsic in uence involves overt acts which may be corroborated or disproved O illegal method of reaching verdict O admissible 0 Intrinsic in uence are matters known only to individual juror 0 non admissible Motion to Set Aside Judgment Rule 60b on motion and just terms the court may relieve a party or its legal representatives from a final judgment order or proceeding for the following reasons 1 Mistake inadvertence surprise or excusable neglect 2 Newly discovered evidence that with reasonable diligence could not have been discovered in time to move for a new trial under rule 59b 3 Fraud intrinsic or extrinsic misrepresentation or misconduct by opposing party 4 The judgment is void 48 5 The judgment has been satisfied released or discharged it is based on an earlier judgment that has been reversed or vacated or applying it prospectively is no longer equitable or 6 Any other reason that justifies relief CHOICE OF LAW FEDERAL V STATE Erie Doctrine is about choice of law When does a court apply state law Question of which state law is horizontal When does a court apply federal law Question of federal or state law is vertical Vertical is important for the Erie doctrine Federal law always trumps state law If there is a valid federal law which con icts with state law federal law wins Within a subset of laws there is a hierarchy Constitution gt Statute gt Common Law Erie Railroad v Tompkins set the standard for federal court choice of law PREErie 1 What law applies in federal court For procedural law it was mixed There was the conformity act which said federal court should follow state procedural laws in the state in which they sit Federal equity rules sometimes applied to actions in equity For substantive law the Rules of Decision Act was supposed to apply 28 USC 1652 the laws of several states except where the constitution or treatises of the US or acts of congress otherwise require or provide shall be regarded as rules of decision in civil actions in the courts of the US in cases where they apply It appears to tell us which law is supposed to apply in the federal court a If there is federal constitutionalstatutory law then those would apply b State statutes laws enacted by state legislature and local state common law CL that had to do with real property applied when federal was lacking i If these sources weren t present then the federal general CL would apply like torts and contracts that didn t have to be the same at state law ii Swift v Tyson interpreted the Rules of Decision Act to determine that state common law did not apply when the state statute had spoken on the issue The court s ruling meant that the federal courts when deciding matters not 49 specifically addressed by the state legislature had the authority to develop a federal common law This was overruled by Erie Erie Railroad Co v Tompkins court is trying to decide whether to use state or federal law when the two are in disagreement State law provides no remedy for plaintiff while federal law does They impose different level of duty on the Railroad Co Federal Constitution Federal Statute and State Statute are all lacking However there is local common law Pennsylvania that would allow the Railroad D to win because P would be considered a trespasser and the RR was not wantonly negligent P argues that this case is governed by federal general common law in which P would win because RR would owe a duty of ordinary care Why do these justices throw out Swift v Tyson Court determines that federal general common law does not exist Congress has no power to declare substantive rules of common law applicable in a state the federal government doesn t have the power to make the general law commercial or tort 0 Another reason to overturn is to prevent forum shonning people trying to manufacture diversity jurisdiction to be under either state law or federal law whichever is more beneficial If federal and state court have different views of law you could move under one or the other Black amp White Taxicab Case you can just reincorporate in another state if you wanted to get diversity jurisdiction cannot be done anymore Ironically Swift v Tyson was originally intended to promote uniformity It was hard for multistate entities to be beholden to different laws in every state If federal law was uniform it would promote growth of companies and was probusiness whereas some states are anti business However this caused terrible disuniformity within states Pre Erie a court sitting in diversity would apply federal common law which was more favorable to corporate interests Court ruled that was an unconstitutional usurpation of powers After Erie a court sitting in diversity applies state law in which it sits generally more plaintiff friendly POST ERIE federal courts apply Federal Rules of Civil Procedure as well so i ii iii Procedural Law became FRCP Federal a Rules Enabling Act put in place Rules of Civil Procedure These are the supreme laws of the land FRCP governs all procedural law but shall not abridge enlarge or modify any substantive rights Substantive Law is now all state common law State Preerie was the opposite 50 What Law Applies Federal Federal State including common law In a diversity case state substantive law applies The court has struggled to articulate a comprehensive test of determining procedural V substantive issues 0 For example FRCP requires medical exam seems procedural under Rule 35 But suppose the state constitution opposes this by protecting bodily integrity of its citizens Medical exam without consent would be considered assault and battery In this sense maybe it is substantive Even something such as statute of limitations can be argued as procedural or substantive Why do we have a statute of limitations certainty for potential defendants protects their interests seems substantive and accuracy of stale claims and freshness of evidence judicial reasons seems procedural The line between procedure and substance can most times be blurry So if we aren t relying on this difference as much when should federal or state law apply Guaranty Trust Co 12 York dealing with statute of limitations Court determines that state law should be followed so statute of limitations was deemed substantive The way to determine if it is substantive or procedural is whether or not it is outcomedeterminative the York test whether it can intimately affect recovery or nonrecovery But for choice of law statute of limitations is procedural It can be either depending on the situation 0 Later it was decided that outcomedeterminative test is not very well applied because it can be so broad Hanna Anything can be outcome determinative even things that feel obviously procedural 0 Hypo farmer who lives in Pennsylvania gets foot cut off by tractor Tractor was defective and sold by manufacturer in Pennsylvania State statute of limitations was two years and three years have passed Federal court would use state statute and bar the claim Is there any way to get around the statute of limitations 1 You could sue manufacturer s company in state B their place of business maybe if they have a longer statute of limitations 2 Then you could argue that in the state B the statute of limitations is procedural and governed by state law Also state B could apply state A s substantive law if they think it s more advantageous 51 3 Then you could try to transfer back to state A under a true 1404 transfer in order to keep State B s statute of limitations Under 1404A transfer there has to be personal jurisdiction and venue in state B where the suit was originally filed Hanna v Plumer established a two prong analysis for Erie cases Don t ask if the con ict is outcome determinative This case deals with the issue of whether state law or FRCP 4e2 governs service of process in a diversity action Court determines that FRCP govern 1 If there is a valid federal rule of civil procedure on point then that trumps state law and should be applied As long as the federal rule is valid under rules enabling act and constitution it has to be used If there is doubt whether a federal law is on point it should be given a narrow construction 2 When there is not a federal rule on point 0 Follow a federal rule practice or custom which con icts with a state way of doing things Also can look to the state and federal interests in having their laws apply 0 Focus on the twin aims of Erie 1 Preventing forum shopping usually the federal court will follow state practices to avoid forum shopping But in regards to Hanna people wouldn t forum shop just because of the statute of limitations I If people would ock to federal court to vindicate their state law claims because the federal court offers a more attractive way to pursue their claims then the federal court will usually follow the state practices 2 Avoidance of inequitable administration of the laws fairness FRCP must be valid and on point 0 VALID A FRCP or procedural statute will be upheld as long as it is arguably procedural That is if it falls within the gray area between substance and procedure it is valid Thus the requirement of validity is almost always satisfied 0 ON POINT Federal directive must actually govern the matter at issue Federal and state do not have to be in con ict Sometimes they can coexist if the federal rule is read narrowly 0 Ex Walker 12 Armco Steel when does an action commence Rule 3 of FRCP addresses the issue but state law differs Rule 3 deemed not on point because state was dealing with commencement in regards to statute of limitations 52 0 Also when FRCP is silent as to part of the law it is on point with then state law should govern NOTE however even though federal court try to avoid forum shopping sometimes the federal courts will tolerate some forumshopping if there is a strong federal interest in following federal practices rare instance Byrd 12 Blue Ridge Rural Electrical Cooperative 1116 should a federal court follow state or federal practice in determining whether the issue should be decided by the judge or a jury The issue is whether or not the plaintiff was an employee of the defendant Federal court thinks the jury should decide this whereas state thinks it should be decided by a judge 0 In this case there is no federal directive on point but there is the 7th amendment the right to a jury trial in common law cases shall be preserved However they think this might not be completely on point They allow it to in uence the federal courts though and allow jury trials This gives them a federal interest The state court wants it to be a judge question but don t give a reason why it s just their policy 0 What about forum shopping Could draw people to federal court in order to get a jury instead of getting a judge in state court But nonetheless the court decides that federal law should prevail 7th amendment in uence trumps the worry over forum shopping This is a rare case In re Lease Oil class action hundreds of people with small claims band together to sue defendant suit was won in favor of plaintiffs against various oil companies Over 10 million dollars remained that was unable to be distributed Court ordered Cy Pres remedy as close as possible money given to some charity that has something to do with the law suit 0 Texas sues to receive the money under the state s Unclaimed Property Act which purports to apply to any unclaimed property even money Does the state act govern money goes to Texas or FRCP Rule 23e Texas gets interest 1 Is there a valid federal law on the issue No FRCP does not say anything about what to do with left over money This court thinks silence does not constitute FRCP giving district court the power to do anything they want Only if there is a direct collision between FRCP and state law will the valid FRCP apply FRCP 23e is not on point This is a point for state law 2 Does applying federal law in this case encourage forum shopping No People wouldn t file in federal court rather than state court because of cy pres This is a point for federal law 3 Does allowing cy pres distribution lead to the inequitable administration of justice Yes State would lose property right purely on fact that case is in federal court This is a point for state law 53 4 There is a state interest in following their property law and no federal interest Property rights have a substantive feel to them as well Point for state law Determining the Content of State Law Once the federal court has determined that it should apply state law Whenever there is no state law from the highest court of the state the federal court should do what it believes the state Supreme Court would have done when faced with the case The federal court is to look to all available data to make its best guess as to the content of state law The goal is to guess what would the state supreme court do What happens when the federal court guesses wrong Deweerth v Baldinger Monet painting case Federal court guessed that P had to use reasonable diligence but a couple years later NY law determined there did not have to be reasonable diligence Can a plaintiff reopen her case because of a changed decision of NY state law whenever the federal court hypothesized the law incorrectly No 0 The fact that a federal court must follow state law when deciding a diversity case does not mean that a subsequent change in the law of the state will provide grounds for relief under Rule 60b6 0 She cannot reopen a federal case that has been closed for years in order to gain benefit of a newlyannounced decision of a state court a forum in which she specifically declined to litigate her claim By filing in federal forum plaintiff assumed the risk of a change in applicable rules of law MISC When federal law is used in state court reverse Erie When a federal law claim is litigated in state court do the state courts have to apply federal procedure No they usually apply state procedure even though it s a federal substantive law claim THE PRECLUSION DOCTRINES One obvious policy justification for preclusion is efficiency Basic Idea we should have one law suit about an issue and not more You already had your day in court and now we re done Preclusion is divided into two doctrines 1 claim preclusion also called res judicata a rule against splitting a cause of action and 2 issue preclusion called collateral estoppel How does one raise the issue of preclusion Defendant has to bring it up and it would be considered an affirmative defense Defendant should assert it in the answer or if it is obvious then they can motion to dismiss Burden is on the defendant 54 1 CLAIM PRECLUSION allows for a plaintiff to bring a cause of action or claim only once If the claimant wins the first case then we say that the claim is now distinguished and can t be sued on again so it merged into the judgment Bar if the claimant loses they are m from trying to sue on the same claim again 0 There are two types of problems that claim preclusion deals with 1 the repeated suit problem on the same claim and 2 the claim splitting problem claimant divides up the claim into little pieces and sues on each little piece called being a claim splitter There are three requirements of claim preclusion 1 The two cases must involve the same claim or cause of action 2 The parties to the two suits must be identical or in privity a Privity close relationship between the parties like a representational relationship guardian Can also apply to the two subsequent owners of a piece of property If the first owner tried to bring a law suit and lost the second owner is precluded from bringing the same claim b Also to be precluded the parties in case 2 must be in the same configuration as in case 1 i Paul V David 9 David V Paul claim preclusion would not apply because there is no double suit and no claim splitter ii Compulsory Counterclaim Rule 13 another way to prevent another case sometimes a D is required to give their counterargument in the first case Prevents unnecessary litigation 3 The first case must have ended in a valid final judgment on the merits a Valid does not mean correct It simply means the court had both forms of jurisdiction subject matter and personal b Finality final once you have the judgment in the trial Doesn t include appeals c On the Merits Includes pretty much any way a case could end like summary judgment default judgment directed verdict except for certain procedural or jurisdictional problems For example if dismissed for lack of subject matter or personal jurisdiction or improper venue then it is not a valid judgment on the merits Carter 12 H inkle there is a car crash and the injured party sues If the injured party has property damage and personal injury are these two claims or one claim 55 Primary Rights View Minority these are distinct and separate type of damages so there are two claims If there are two claims you can have two law suits 0 What s wrong with minority view Not efficient because it duplicates litigation 0 For Minority the law has different rules for different transgressions So property damage and personal injury cases could have different outcomes Also statute of limitations may be different for each Different injuries different claims Single Wrongful Act View Majority all the things that come out of one act is one claim All damages arising out of a single incident must be brought together as one cause of action 0 Helps prevent crowding of the courts with unnecessary litigation eliminates added court costs and prevents vexatious litigation 0 Under this view the claim is bigger because it encompasses more The Transactional Test or the restatement test adopts a view like single wrongful act but takes it one additional step Dealing with a transaction not a single act car crash It is broader all acts related to the series of transactions HYPO There is a car crash with personal injury and property damage Also the D jumps from their car and screams obscenities at P causing intentional in iction of emotional distress Also D defames P by shouting libelous falsehoods about P to the crowd of onlookers Under primary rights 4 claims one for each thing Under single wrongful act 2 claims related to car crash and related to emotions Under transactional test 1 claim everything is caused by the car accident Comer 12 Murphy Oil Co Residents brought suit against Oil Company claiming that D s emissions contributed to global warming which intensified global warming which in turn damaged P s property 0 In case 1 the District court dismissed P s claim because of Case and Controversv reguirementcourt can only resolve legal disputes not questions of policy This case is not a legal dispute between property owner and damager but a policy argument about global warming 0 Case 2 P s file same claim again and court says claim preclusion They ask the question did the first case district court s dismissal end in a valid final judgment on the merits 0 Valid yes Final yes On the merits yes because the district court s decision resolved the jurisdictional issues 56 2 ISSUE PRECLUSION Issue preclusion is narrower in the sense that the entirety of case two is not gone only the issues in common won t be litigated again It prevents relitigation of particular issues that were actually litigated and determined in the first case If it is a different claim in the second case not governed by claim preclusion it can still be on the same issue and fall under issue preclusion 0 Ex claimed he slept with Madonna She sues him for slander and wins Years later when writing his memoirs he included that he slept with Madonna libel Claim preclusion does not apply because it is a different claim Issue preclusion would apply though because it had already been decided by the first court The doctrine of law of the case provides that issues decided in a suit will not be relitigated later in the same suit Once a court decides there is issue or claim preclusion then the next court cannot change it even though the court could have been wrong If the previous court decided it was claim preclusion and ended up being wrong then the next court could use issue preclusion as to the claim preclusion Application of issue preclusion requires assessment of five questions 1 Was the holding on that issue embodied in a valid nal judgment on the merits a Same as in claim preclusion correct jurisdiction final ruling resolved on the merits Then there could potentially be preclusion in case two 2 Was the same issue litigated in the first case a What exactly was decided in case one Because only those issues can be precluded in case two b Cromwell v County of 5616 the first case smith 12 county county won on the grounds that bonds were void In case two Cromwell suing on his different bonds sues the county again i Is there claim preclusion No they are not the same claim because they are different bondscoupons different loans ii Is there issue preclusion in case two Partially yes The issue as to the fraudulent nature of the bonds in case one is precluded in case two Partially no plaintiff paying for bonds wasn t an issue in case one but could be an issue in case two Smith did not pay for the bonds but Cromwell paid for them not knowing that the bonds were fraudulent 3 Was the issue essential to judgment in first case 57 What is it that makes something essential or not When the outcome would not come out differenth then an issue is not essential to the case EX contributory negligence holds A liable Whether B was also negligent or not negligent is not essential because B will win no matter what Hold one of the findings constant and then ip the other finding back and fort Why do we have the essential requirement Because we don t have as much faith in the finding that isn t essential The nonessential is not preclusive If Sally sues Joe for negligence and it s found that Sally is contributorily negligent then Joe s outcome doesn t matter only contributory negligence was essential to the judgment of the case Alternative holdings outcome when neither one Sally or Joe s negligence is essential but both are sufficient to win Courts have given preclusion to both or to neither Up to appellate courts to determine which one they want to use Rios v Davis a finding of fact by the court which does not become the basis or one of the grounds of the final judgment is not conclusiveessential against either party to the suit 4 Against whom may preclusion be asserted a Preclusion can be asserted against the case one parties or those in privity with C them Rejected virtual representation Everyone gets their day in court Hardy v JohnsManville Sales Corp this case involved the six manufacturers from the Borel case and thirteen additional manufacturers Issue preclusion can be used against the six in Borel but not against those manufacturers who were not parties to Borel Collateral Estoppel cannot be applied against a person who was not a party to case 1 Privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts 5 By whom may preclusion be asserted a Mutualitv of Estoppel issue preclusion can t apply in case two unless both parties are the same Fairness argument you shouldn t benefit from preclusion in case one if you couldn t be hurt from preclusion in case one Issue preclusion can only be used by someone who was a party in privity with a party to the first case There has been a widespread jettisoning of the traditional rule of mutuality to permit nonmutual issue preclusion i Bernhard 12 Bank ofAmerica rejects mutuality requirement completely Kids felt that they were swindled out of their inheritance and sued the 58 executor in case 1 executor wins In case 2 the kids sued the bank over the same issue Can the bank use issue preclusion against the kids According to the old mutuality rule they cannot use issue preclusion But since Judge Traynor throws out mutuality the bank can use collateral estoppel nonmutual defensive collateral estoppel ii BlonderTongue Laboratories Inc v University of Illinois F oundation patent holder loses in case 1 due to invalid patent Alleged infringer in second case can use issue preclusion against patent holder because it was already decided in case 1 This encourages patent holder to group defendants nonmutual defensive collateral estoppel c Getting rid of mutuality encourages plaintiff to bring all defendants together into one case lessens litigation So mutuality is not really needed anymore COLLATERAL ESTOPPEL OPTIONS 1 Nonmutual Defensive Collateral Estoppel nonmutual because the party asserting estoppel D2 was not a party to case 1 Defensive because the party asserting estoppel D2 is the defendant in case 2 This lets defendants use issue preclusion against plaintiff who keeps suing people for the same thing Ex Case 1 P sues D1 issue X decided against P Case 2 P sues D2 In Case 2 D2 attempts to assert collateral estoppel against P on issue X 2 Nonmutual Offensive Collateral Estoppel nonmutual because the party asserting estoppel P2 was not a party to case 1 Offensive because the party asserting estoppel P2 is the plaintiff in case 2 Ex Case 1 P1 sues D issue X is decided against D Case 2 P2 sues D In Case 2 P2 attempts to assert collateral estoppel against D on issue X Problems with nonmutual offensive HYPO train wreck happens and 100 plaintiffs sue P1 sues train train wins P2 sues train train cannot assert issue preclusion because P2 was not a party to the first case everyone gets their day in court 59 Pl sues train and wins Then P2 sues and wants to use nonmutual offensive issue preclusion Then every single plaintiff from 2100 would automatically win against the train The train would have to win every single case 1100 in order to escape liability What if P1P50 loses but P51 wins Then every plaintiff after 51 would be able to ride the victory Plaintiffs could lie in wait for someone else to win and encourages duplicate lawsuits Nonmutual offensive has given rise to plaintiff shopping counsel for numerous plaintiffs might agree that the one with the most compelling case and thus the best chance to show that the defendant was liable ought to go forward first The modern trend is to allow nonmutual offensive collateral estoppel if certain conditions are satisfied like in Parklane Hosiery Co v Shore 1 2 In case one SEC sues Parklane materially false and misleading issue D loses In case two Shareholders sues Parklane same issue can shareholder use nonmutual offensive issue preclusion in this case YES But court imposes safeguards No offensive collateral estoppel where the second case might afford the defendant procedural opportunities that could cause a different result The general rule is that when the plaintiff could have easily joined in an earlier action offensive collateral estoppel should not be allowed It is also not allowed when it is unfair to defendants where the first action is small and the D might not have as much incentive to defend vigorously Also cannot be used if there was inconsistent judgment like the issue being decided both ways at some point 3 Collateral Estoppel cannot be used against a person who was not a party to Case 1 or in privity Case 1 Pl sues D issue X decided against Pl Case 2 P2 sues D Can D assert collateral estoppel against P2 on issue X NO Exceptions to any kind of Issue Preclusion page 660 Federalism Issues What happens if judgment is entered in one district and the second case is filed in another jurisdiction 60 State Case 1 Federal Case 1 Always ask State Case 2 Federal Case 2 Full Faith and Credit Clause Must follow the State s law that comes before Rule 28 1738 Full Faith and Credit Clause Must follow the State s law that comes before Rule 28 1738 i Federal Question Cases Preclusion is governed by Federal Common Law ii Diversity Case Preclusion is a matter of Federal Common law but you must render State law i Federal Question Cases Preclusion is governed by Federal Common Law ii Diversity Case Preclusion is a matter of Federal Common law but you must render State law J OINDER RULE 18 i What picture are we looking at see handout Traditionally it was one plaintiff suing one defendant on one claim Today the courts are more exible J oinder permits the joining of parties and claims across transactional lines ii Is there a joinder rule which allows assertion of claim is it satisfied iii Is it supported by subject matter jurisdiction independent or supplemental 61 gt quotquot For every variation of joinder you must determine whether joinder is proper under the relevant procedural rule and whether there is subject matter jurisdiction over the additional claims The additional claims might i have their own source of jurisdiction or ii need to use supplemental jurisdiction Also if joinder brings in a new party there needs to be personal jurisdiction over that party Every joined claim must have basis of federal subject matter jurisdiction If not supported the court can allow supplemental jurisdiction the doctrine that allows federal courts to hear claims so closely related to underlying disputes that properly invoked federal jurisdiction as to be considered part of the same case or controversy as that dispute Close relationship defined on transactional lines Statute 1367 FRCP supplemental jurisdiction 0 Additional claims must be so related to claims in the action within such original jurisdiction that they form part of the same case b Pulls back in a diversity case the court does not have supplemental jurisdiction TVDes of J oinders 1 Claim Joinder rule 18a one plaintiff and one defendant with other claims being added Ask yourself if the claim joinder is legal according to rule 18 Then think about jurisdiction because FRCP does not create jurisdiction Jurisdiction is a separate analysis SMJ over claim and additional claim If the claim does not have jurisdiction by itself then you can look to supplemental jurisdiction to add it 0 Rule 18 a party asserting the claims may permissive but don t have to add as many claims as it has against an opposing party They do not have to be related to the original claim at all A party can also join two claims even though one of them is contingent on the disposition of the other Rule 18 doesn t impose limitations to claims at all it s open season Pro efficiency Con can be confusing Think about claim preclusion later if P doesn t add all their claims 0 Then think about SMJ EX suppose the first claim is a federal question claim and arises under federal law The added claim also arises under federal law In this case both would be fine all by themselves and have SM 0 Variation EX suppose the P is from Texas and D is from California 1st claim is federal and joined claim is state law for 100000 There is jurisdiction over both because it is a diversity suit We don t need supplemental jurisdiction in a case like this 0 Variation EX suppose both citizens are from Texas the anchor claim is federal and the added claim is state law The added claim has no jurisdiction on its own The added state claim can only get in because it can glob onto the anchor federal claim 62 0 United Mine Workers v Gibbs one claim arises under federal labor law is alright and the added claim state law claim couldn t have gotten in by itself Gibbs is a Tennessee resident and UMW is as well so diversity does not allow state claim to get in either So court looks to supplemental jurisdiction SC ruled that in these circumstances there should be supplemental jurisdiction over the state law claim Why 0 Because the two claims are related same facts gave rise to two separate claims Court has power to exercise control over cases with federally related matters Anything that s included in the federal case is included in the jurisdiction Common Nucleus of Operative Fact federal district court has jurisdiction over the case which is all of the stuff that comes out of CNOF Claims are a part of the CNOF if they are related not legally but factually Even though the federal claim ended up failing as a matter of law there was still a federal case anchor to begin with which closely related enough to the state claim to bring it along 0 The federal court has discretion and doesn t have to accept the state claim They can dismiss the claim if 0 The court realizes that the state claim is the much more important or prominent claim the dog and the federal claim is borderline frivolous the tail Also if the federal claim is dismissed before the actual trial the federal court can choose to give up jurisdiction Also if the court thinks that the two claims could confuse the jury too much or are too complicated looked at together 2 Counterclaims rule 13ab one plaintiff suing one defendant with the defendant counterclaiming 13a is compulsory This makes some counterclaims mandatory if they arise out of the same transaction or occurrence and doesn t require the addition of a second party Rule 13a is meant to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matter 0 Dindo 12 Whitney compulsory counterclaim was not asserted beforehand even though it arose out of the same transaction car crash Is there any wiggle room for the P to bring the counterclaim now Yes because the first case was settled and not brought in court it 63 has some bearing on whether they should bar plaintiff Also if P really didn t know that he had a counterclaim then they should let him off the hook an equitable exception 0 In general if you don t bring the claim you lose i Carteret Savings amp Loan Assn v Jackson Court bars the Jackson s from filing a counterclaim later They are not claiming like Dindo that they didn t know about a counterclaim 0 Hard Rule of 13a no equitable exceptions Is there any other way to give someone hurt by this rule relief because they can t bring their counterclaim Could bring a separate suit for lawyer s malpractice If the suit is still going on perhaps they can amend the answer 13b is permissive in the sense that it s not mandatory to file the counterclaim A party can assert any claim she has against an opposing party similar to rule 18a One claim is related and the other is not Under rule 13b D can bring both counterclaims This is known as the open season or anything goes rule D must assert the compulsory counterclaim but doesn t have to assert the unrelated one if she doesn t want to Once D asserts unrelated claim P can assert it as well 0 What does the P do to respond to the counterclaim Rule 7 give an answer to a counterclaim designated as a counterclaim Rule 12b6 claim D failed to state a claim on which relief could be granted When is something governed by 133 or b If it arises out of the same transaction or occurences then it is compulsory If it does not then it is permissive EX if an employee is fired that event could probably give rise to multiple claims breach of contract and employment discrimination this would be compulsory Jurisdiction for Counter Claims A counterclaim must satisfy subject matter jurisdiction For both mandatory and permissive counterclaims there must be an independent basis of jurisdiction 1331 1332 or supplemental jurisdiction 1367 arises from common nucleus of operative fact This is slightly broader than transactional relatedness Compulsory counterclaims 13a always have 1367 supplemental jurisdiction because they are from the same transaction 0 A counterclaim must have supplemental jurisdiction if it s not over 75000 for diversity of citizenship 1367a gives supplemental jurisdiction if the counterclaim is so related that it forms part of the same case or controversy Supplemental Jurisdiction is not withdrawn by 1367b because the claims weren t made under Rule 14 19 20 or 24 0 A counterclaim has no independent jurisdictional basis if there is no diversity of citizenship even if the amount in controversy is huge If it is a federal question claim then 1367b does not apply and supplemental jurisdiction can be granted 3 J oinder Of additional defendants rule 20a2 governs proper defendants One plaintiff suing two defendants You have to ask if there s personal jurisdiction over D1 and D2 64 Because rule 20 is permissive plaintiff is not required to join all potential parties who satisfy rule 20 0 Rule 20 People can be joined as defendants if 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 and occurences and any question of law or fact common to all defendants will arise in the action 0 Schwartz v Swan Dorothy Clarence and Adelia Schwartz were injured in two separate car accidents ten days apart D amp C want to sue all defendants Abernathy Bray amp Polvick in the same trial D amp A in accident with A amp B then D amp C in accident with P 0 Why do the Schwartz s want to consolidate the defendants Efficiency because if 0 the D s are separate cases then they can blame each other Dorothy s injuries happened in the other accident This convincing of the jury that some absentee is really to blame is called whipsaw Plaintiffs want to add as many defendants as they can because chances are they ll win against someone but plaintiffs do not want to usually be coplaintiffs because they feel like they ll get less damages Appellate court decides to allow the plaintiffs to consolidate the defendants into one case even though there were two separate accidents Rule 20 allows consolidation because they involve same question of law Clarence s claim of loss of consortium stems from Dorothy s injuries They can also add their claims to Adelia s claims because of the damages issue trying to determine which injuries happened in which accident Rule 42 1b consolidation the court can order separate trials for convenience to avoid prejudice or to expedite economize the court may order a separate trial of one or more separate issues Necessary amp Indispensable Parties rule 191 if an absentee D is a necessary party to a lawsuit of P 9 D Also A can have strong interests in the case against D Rule 19 requires parties to be joined in certain circumstances if the lawsuit put together by P cannot work without the added D Rule 21 governs misioinder of parties penalty is not dismissal the court can just add or drop a claim and may also sever any claim against a party Intervention PartyRule 24 if a person finds out about the lawsuit and wants to join but they are not required 0 Jurisdictional Issues for J oinder of Additional Defendants 65 0 In Finley case P is victim of plane crash D1 is US federal question claim and D2 is local government state law claim Can the P join the state claim with the federal one No In this case the federal question is exclusive because US can t be sued in state court which means that the state claim can t be brought along into federal court Congress later rejected Finley and codified Gibbs 0 Suppose P against two D s scenario there is diversity both claims are state law with the first claim being worth 100000 The first claim would be proper The second state law claim is only worth 10000 By itself it wouldn t be satisfactory because it doesn t meet the amount in controversy requirement But can claim two be heard under supplemental jurisdiction NO supplemental jurisdiction because D2 was made a party under rule 20 statute 1367 I Joined Parties can have supplemental jurisdiction under 1367a However if the basis of claim is diversity then there is no supplemental jurisdiction over plaintiffs claims against party added under Rule 14 1920 or 24 0 Suppose there are two P against one D there is diversity P1 s claim is 100000 and P2 s claim is 10000 Is there supplemental jurisdiction in this case YES Because it is not a claim made by a person made a party under rule 20 P2 is the person made a party not the D statute 1367 I What is there is no diversity No supplemental jurisdiction because there is now no complete diversity Lack of complete diversity destroys the entirety of the suit Complete diversity rule trumps the supplemental jurisdiction rule Even if P1 has diversity but P2 does not there is not complete diversity 4 J oinder Of additional plaintiffs rule 20a1 Govems proper plaintiffs Person may join in one action as plaintiff if 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 occurences and any question of law or fact common to all plaintiffs will arise in the action 5 Crossclaims rule 13g P sues multiple D s and then D s assert claims against each other Procedural Rule 13g a pleading may permissive state as a crossclaim any claim by one party against a coparty if the claim arises out of the original transaction or occurrence that is the subject matter of the original action or of a counterclaim or if the claim relates to any property that is the subject matter of the original action 66 Jurisdictional Aspects of CrossClaims First assess whether there is subject matter jurisdiction There is generally supplemental jurisdiction over a 13g crossclaim because it is the same case relating to 1367 and 1367b does not take jurisdiction away over cross claims made by D s For a true crossclaim there should be supplemental jurisdiction If it s an unrelated crossclaim then it s probably not the same case and does not have supplemental jurisdiction Unrelated crossclaims would need their own independent jurisdiction HYPO Perry is in a car crash with Olive being the owner of the other vehicle and Donna being the other driver What claim can Olive assert against Perry Compulsory counterclaim because it arises from the same occurences What claim can Olive file against Donna She doesn t have to but Olive can crossclaim The crossclaim may include a claim that the coparty Donna is or may be liable to the crossclaimant Olive for all or part of a claim asserted in the action against the claimant This is a claim for Olive s indemnification Suppose Olive crossclaimed Donna for indemnity but not for damage to Olive s car Later Olive files a separate action against Donna to recover to damage to her car Would this be allowed No because of claim preclusion Olive would be considered a claim splitter if this happened Suppose Olive asserted both claims of indemnity and damage to her car If Olive had a completely unrelated claim trespassing on her farm how could Olive assert that claim in the pending case Under Rule 18a a party asserting a crossclaim may join as many claims as it has against an opposing party Must she do so No it would be considered permissive not compulsory Once you have one claim you can pile on more 6 Impleader rule 14a the first tool to override the plaintiff s party structure of a suit is impleader or thirdparty practice which is governed by rule 14 It allows a defending party one against whom a claim has been asserted to join an absentee in limited situations The defending party who invoked impleader is called the thirdparty plaintiff while the absentee brought in becomes the thirdpartv defendant Basically defendant says someone else is in whole or in part responsible if the defendant has to pay the plaintiff s claim Impleader promotes efficiency by litigating the underlying claim and any claim over for indemnity or contribution in a single proceeding Must implead within 14 days of the answer or when given permission by the court if you re outside the time period You may implead but don t have to It s permissive You can also wait until later to have a separate law suit against them 67 What about claim preclusion There isn t any risk of claim preclusion if the defendant doesn t implead right away because if the defendant doesn t sue anyone then no claim has been asserted yet Thirdparty defendant may assert any defense against the plaintiff that the original defendant did not use Two situations can arise from impleader 1 2 Contribution says you re partially responsible for some of the judgment just made This equalizes the burden on the wrongdoers by requiring each to pay his own proportionate share of damages Indemnity enables one tortfeasor to shift the entire burden of the judgment to another However indemnity will not be allowed where both parties have been negligent to a certain degree Markvicka v Brodhead Garrett Co Defendant filed a thirdparty complaint impleader against school district because they believed them to be at least partly liablenegligent Court ruled that because the school district may have been liable for contribution it may be joined as a third party defendant in order to determine their accountability Federal law says there s no need to wait to implead the thirdparty Rule 14 merely accelerates assertion of the claim against the thirdparty defendant Rule 14a2 Third party defendant can assert claims against the plaintiff downsloping and the plaintiff can assert claim against defendant upsloping Jurisdiction for up and down sloping claims An upsloping third party claim must satisfy an independent basis of subject matter jurisdiction It cannot be granted supplemental jurisdiction if the original claim is based on diversity jurisdiction A downsloping third party claim has supplemental jurisdiction because transactional requirement ensures common nucleus of operative fact Owen Equipment amp Erection Co v Kroger about jurisdiction regarding impleaders Kroger Iowa sued OPPD Nebraska who then impleaded Owen Nebraska Plaintiff Kroger also decided to sue upward sloping claim Owen However it came out later that Owen s principle place of business was in Iowa 68 0 Kroger loses against OPPD So all that s left is Kroger V Owen but now there is no complete diversity of jurisdiction 1332a1 Iowa V Iowa Is this permissible NO even though the original claim had federal jurisdiction 0 Could she have sued the two companies initially if all the facts had been known No because there was no complete diversity Since she couldn t have sued them both initially to begin with she cannot sue Owen in federal court now The Supreme Court doesn t want people to be able to circumvent the diversity jurisdiction rule Policy Consideration 0 So Kroger can sue Owen in state court no claim preclusion because the dismissal of the claim was not on the merits but was on jurisdictional grounds Can Kroger sue OPPD again but in state court No claim or issue preclusion However if it has been a few years Kroger has to make sure that the statute of limitations hasn t run out on her claim against Owen I State court allowed the statute of limitations to be tolled basically put on pause for the time Owen spent in federal court 1367d Impleader Jurisdiction 0 Why is there supplemental jurisdiction over an impleader claim filed by a defendant Because the claims are so related they re part of the same case 1367a This is always true of Impleader claims Does 1367b take it away NO supplemental jurisdiction is taken away if it was a claim made by the plaintiff and takes away person brought into the case by rule 14 0 Why is there supplemental jurisdiction over a down sloping 14a claim Yes Not a claim by a plaintiff and not a claim against a person made a party by rule 14 0 Why is there not supplemental jurisdiction over an upward sloping 14a claim Because it is a claim by a plaintiff against persons made a party under rule 14 Interpleader Rule 22 one party that is usually called the stakeholder and then there are a bunch of potential claims Stakeholder initiates the suit and says all the claimants are put together to see who gets the money EX stakeholder bank claimants those who think they deserve to get the money Intervention Rule 24 have some absent party who gets wind of the lawsuit and decides they should be part of the law suit too They don t bring a separate lawsuit but intervene in the ongoing one 69
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