Civil Procedure Outline (long)

Civil Procedure

Outline

Procedural due process

AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION; DISQUALIFICATION OF OFFICERS; PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Amendment 14, section 1, US Constitution: “nor shall any State deprive any person of life, liberty or property, without due process of law”

Due Process: (2 basic requirements)

jRight to notice

kOpportunity to be heard

Is life, liberty or property at stake?

Sindach v. Family Finance Corporation (1969) started the due process revolution in the 1960s. (Goldberg (1970) and Mathews (1976)). Several cases have held that government benefits are a kind of property and require (1) notice and (2) chance to be heard to satisfy due process.

After cases like Fuentes v. Shevin (1972), the court did not address issues of due process for almost 20 years, as the state legislatures took the lead in balancing state and private interests.

This changed in 1991 with Connecticut v. Doeher. Even though it revived due process, this case was different because it involved real property. All prior cases dealt with some form of personalty and the physical seizure of it.

Is there state action?

The line can be blurred and hard to make out. This also does not mean that private actions are legal because they are not limited by the constitution. Private actions are limited by statutory, contract, tort, or other law.

A. Joint Anti-Fascist Refugee Committee v. McGrath: (1951): Interpretation of due process requires that organizations have the opportunity to defend themselves before being labeled negatively by the Attorney General

Sniadach v. Family Finance Corporation (1969)

Issue: Whether wage garnishments as practiced in many states denied the debtor due process of law.

Rule: A debtor must be notified and given the chance to be heard before wage garnishment.

Goldberg v. Kelly (1970): Public assistance as property

Issue: Whether due process requires notice and a hearing before the government terminates public assistance.

Holding: Due process requires a hearing before the government terminates public assistance. This hearing does not need to be in the form of a judicial trial. The absence of a pre-termination hearing is constitutionally inadequate.

Rule: Amendment 14, section 1, US Constitution: “nor shall any State deprive any person of life, liberty or property, without due process of law”

Public assistance is considered property and therefore is protected by Section 1 of Amendment 14.

Weight and balance:

Suffering of individual v.Effects on society	Interests of Government
Survival- no other source of income Government needs to care for the most needy. Basic public assistance will deter disruptive social behavior	Undue fiscal strain on govt. & resources ($)

The interests of the aid recipient and society as a whole outweigh the economic interests of the state. Suffering of loss v. interests of govt.

Mathews, Secretary of Health, Education and Welfare v. Eldridge (1976): The disability benefits case.

Issue: Whether Due Process requires an evidentiary hearing prior to terminating disability payments.

Holding: No evidentiary hearing is necessary before the termination of Social Security benefits because necessary safeguards are in place.

Rule: Due process does not require an evidentiary hearing prior to depravation of a property interest if certain safeguards to due process are in place.

Test: Due process should be interpreted in accordance to the situation and three factors:

The private interest that will be affected by the action
The risk of error in depriving under the present process and value of additional procedural safeguards in reducing risk of error
The Government’s fiscal and administrative interests

Risk of error: making a mistake in the decision and wrongfully depriving someone of property. How likely is it that the outcome will be wrong (get benefits when not needed or be deprived of them when needed)?

Because this case cannot be evaluated in the same way as a welfare case, the Court holds that the procedural safeguards in place are sufficient to meet the standard of due process.

Fuentes v. Shevin (1972): The “I stopped paying for the broken radio and they took my stove” case

Issue: Whether the state can seize property without notice and hearing if the seller has some property interest.

Holding: The state cannot seize property without notice and hearing, even if seller had some property interest.

Rule: For a situation to allow seizure prior to a hearing:

a) Seizure necessary to secure important governmental or public interest

b) Special need for prompt action

c) The seizure is necessary and justified under the circumstances and a government official participates in the determination of the seizure

TRO agrees with Fuentes:

& b. Unusual circumstances where you can obtain depravation of property without notice or hearing- irreparable loss and damages will occur in time it takes to hold a hearing.
TRO is necessary and approved by a judge (evidence presented, judge determines whether legal criteria is met)

See Rule 65(b) for TROs

Hamdi v. Rumsfeld (2004): The US Afghan fighter case

Issue: Whether it is constitutional to detain citizen enemy combatants indefinitely & without council

What is the due process for someone who seeks to challenge this characterization?

Holding: Anyone (including citizens) who fights under the Taliban is considered an enemy and under the special war time powers afforded the Exec by the AUMF.

The due process for someone who seeks to challenge this characterization is (1) notice and (2) fair chance to be heard before a neutral decision maker. (Hearing with a presumption favoring the government and allowing hearsay)

Rule: Even though in times of war citizen enemy combatants cannot be afforded the full protection of habeas corpus and due process, they should be afforded at least with (1) notice and (2) fair chance to be heard before a neutral decision maker. (Hearing with a presumption favoring the government and allowing hearsay)

Writ of habeas corpus – a citizen is held illegally by the government

This case uses the Mathews test.

Notice.

Rule 4 (skim the whole Rule; read especially 4 (c)(d)(e)(h)(k)(m))

Notice must be given before depravation of life, liberty, or property so that the person can be heard and present their case. BUT the system would suffer if before any procedure there had to be actual notice in all instances. If actual notice was required, some plaintiffs would not be able to get relief. People move around and leave no trace.

Rule 4. Summons

(a) Contents; Amendments.

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff’s attorney or–if unrepresented–of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court’s seal.

(2) Amendments. The court may permit a summons to be amended.

(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons–or a copy of a summons that is addressed to multiple defendants–must be issued for each defendant to be served.

(c) Service.

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent–or at least 60 days if sent to the defendant outside any judicial district of the United States–to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent–or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual–other than a minor, an incompetent person, or a person whose waiver has been filed–may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual–other than a minor, an incompetent person, or a person whose waiver has been filed–may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

(g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and–if the agent is one authorized by statute and the statute so requires–by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(1) United States. To serve the United States, a party must:

(A)

(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought–or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk–or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:>

(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

(j) Serving a Foreign, State, or Local Government.

(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.

(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:

(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

(B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.

(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued;

(C) when authorized by a federal statute.

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

(l) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

(n) Asserting Jurisdiction over Property or Assets.

(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

Rule 4: Serving process

Rule 4 (d) provides for a waiver of notice which

Must include a summons and a copy of the complaint (+ waiver)
It must be sent by regular 1^st class mail

The person is waiving the right to notice. For Federal cases.

[Carrot:

This is advantageous for the defendant because they get more time to answer. Normally it is 20 days, but if formal service of process is waived, defendant gets 60 days.

[Stick:

If not waived, the defendant will have to pay for service costs.

Rule 4 (e) Service on an Individual:

Delivering a copy of summons and complaint personally OR leaving a copy at “dwelling house or usual place of abode” with another resident of suitable age and discretion.

* the plaintiff themselves cannot deliver the notice (Rule 4(c) (2)- anyone at least 18 and not party to lawsuit).

Rule 4 (h) provides the rules for service on a corporation

Greene v. Lindsey (1982): The “my neighbor ripped the summons from my door” case

Issue: Whether posting is adequate notice under due process where it is common knowledge that others frequently tear down such postings before they complete their intended purpose.

Holding: Posting is not adequate notice under due process where it is common knowledge that others frequently tear down such postings before they complete their intended purpose because posting is not “reasonably calculated under the circumstances” and mail, an adequate substitute, is not burdensome enough not to be employed.

Rule: Notice must be adequate under (all) specific circumstances. If the customary notice is not adequate, and there is a relatively cheap and effective alternative, that alternative must be used to satisfy due process.

Mullane v. Central Hanover Bank & Trust Co. (1950) Sets the general standard of notice: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action.”

Note on Dusenbery v. United States (2002): Notice to inmate by certified mail. Someone signed for it, but prisoner claims he did not get it. Court finds this constitutional because notice is not actual notice.

Jones v. Flowers (2006): Notice was sent via certified mail and came back to the post-office unclaimed. They knew he did not get notice because he did not sign for letter. Publishing is an actual mechanism of last resort (even though it is unlikely to be seen by the interested party)

The plaintiff (state) knows that the letter was not received and under those circumstances needs to try again to comply with due process. These are similar to the sheriff’s men in the Greene case who knew that postings get torn down.

National Development Co. v. Triad Holding Corp. & Adnan Khashoggi (1991): the “my real home is a compound in the Middle East” case. Centers on the interpretation of Rule 4 and its language.

Issue: Whether the service of the summons on 12/22/86 at the NYC apartment was in accordance with Rule 4.

Holding: The service process was proper because the NYC apartment is Khashoggi’s “dwelling house or usual place of abode,” compliant with Rule 4 but NOT, as the district court held, because he was given “actual notice.”

Rule: “Dwelling house or usual place of abode,” as stated in Rule 4 can be two or more places if (1) it contains “sufficient indicta of performance” and (2) the person is living there at the time of the service.

Rule 4:

Must be delivered to person’s “dwelling house or usual place of abode,”
Given to someone of “Suitable age and discretion”
Delivered to a resident of the locale

Personal Jurisdiction

capias ad respondendum: Name of writ that court gives sheriff. The court’s power to bring someone within its jurisdiction before it. Summons.

in personam: The court’s power over people within its boundaries.

in rem jurisdiction: Gives the court power to adjudicate ownership of a property that is in dispute, regardless of where the people who claimed the land were. Given to the court through a writ of attachment. (Jurisdiction over a thing and about the thing).

quasi in rem jurisdicton: Allows the court’s seizure of defendant’s property unrelated to the claim. If judgment is against the defendant, the court can order a judicial sale of the property to satisfy the judgment. The presence of property gives the court the power to adjudicate a matter involving an absent person because he has land. The court only has power over the land and people within its jurisdiction. The court can hear dispute up to the value of the property.

General Jurisdiction Contacts so substantial that there is jurisdiction on a lawsuit that did not directly arise from those contacts. Rules of thumb: (1) there is always general jurisdiction in the place of incorporation for corporations, and domicile for individuals. (2) Only for individuals: if personally served within the State.

Personal service in state on an individual: A person can be served when physically present in the state regardless of minimum contacts, etc. This gives General jurisdiction over them.

Specific Jurisdiction Lawsuit that arises out of the defendant’s contacts with the State.

Full Faith & Credit: In order for a judgment to be given “full faith and credit” from another state, it had to have jurisdiction to originally issue the judgment.

Collateral Attack: To attack the validity of a judgment in another proceeding at another court where original jurisdiction is questioned.

How to get personal jurisdiction:

Serve process in state when individual is present in the state.
In rem and quasi in rem jurisdiction
Voluntary appearance or consent

Pennoyer v. Neff (1877): No jurisdiction

Issue: Whether a court could order property owned by an out-of-state resident to be seized and sold when the out-of-state resident was not served actual notice.

Holding: A court cannot order property owned by an out-of-state resident to be seized and sold when the out-of-state resident was not served actual notice.

Rule: In order for the trial court to have jurisdiction over the property, the property needed to be attached before entry of the judgment. It then has quasi in rem jurisdiction. Constructive notice is not enough to inform a person living in another state, except for cases affecting the personal status of the plaintiff (like divorce); or the case is in rem and the property sought is within the boundaries of the state. The law assumes that property is always in the possession of the owner, and the owner therefore knows what happens to his property; therefore, attachment of the property before judicial proceedings makes constructive notice sufficient.

Supreme Court: In order for a judgment to be given “full faith and credit” from another state, it had to have jurisdiction to originally issue the judgment. Since the court had no jurisdiction, no other state should honor the judgment. Having jurisdiction over the defendant is an element of due process of law. If there is no due process the judgment cannot be enforced either within or without the state.

Corporations: are not people, but treated as a separate entity.

There is always general jurisdiction in the corporation’s state of incorporation, where it can be sued for anything. Other states, it may have jurisdiction if there are minimum contacts:

International Shoe Co. v. Washington (1945): basis of the modern law of personal jurisdiction. The “my left shoe case.”

Issue: What level of connection must exist between a non-resident corporation and a state in order for that corporation to be sued within that state?

Holding: Jurisdiction was appropriate in this case because International Shoe Co. engaged in substantial activities in the state of Washington, enjoyed the benefits and protections of the state of Washington through the ability to sell there, and had access to Washington’s courts to resolve its disputes.

Rule: The Fourteenth Amendment requires that a defendant cannot be brought before a court of a particular state unless that person has: Certain minimum contacts with the forum state such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice”

Pennoyer v. Neff (1877) established that a person’s presence was needed within the state to properly serve that person, but since the process of summons has come into being, a person needs only to have “certain minimum contacts with the forum state such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.”

To define “certain minimum contacts” the court considers:

The difference between continuous / systematic and isolated activities
Quality and nature of the activities
Whether suit arises directly from these activities

Doing business with a state gives the corporation the protection and benefits of its laws, including the right to file suit. These protections bring responsibilities, including having to respond to suits that arise directly from the enforcement of laws connected with the corporation’s activities.

Hanson v. Denckla (1958):

TEST:

Unilateral activities not enough for personal jurisdiction
The defendant must purposefully avail himself or herself of doing business in the state.
World-Wide Volkswagen Corp. v. Woodson (1980) (p. 115): the car blew up in Oklahoma.
Issue: Whether consistent with the Due Process Clause of the 14^th Amendment, an Oklahoma court may exercise in personam judgment over an out of state corporation in a products liability action when defendant’s only contact with Oklahoma is that their products may be used there.
Holding: Consistent with the Due Process Clause of the 14^th Amendment, an Oklahoma court may NOT exercise in personam judgment over an out of state corporation in a products liability action when defendant’s only contact with Oklahoma is that their products may be used there (stream of commerce) because the corporation has no “contacts, ties or relations” with Oklahoma.
Rule: A court can only exercise personal jurisdiction on a corporation that has have “certain minimum contacts with the forum state” beside the use of their products by consumers within the state. A state cannot exercise personal jurisdiction over a person or corporation with whom it has no “contacts, ties or relations.”

The “minimum contacts with the State must be reasonable and considered in the light of 3 factors:

The State’s interest
The plaintiff’s interest
The interstate judicial interest

Foreseeability is not sufficient to grant personal jurisdiction under due process, if foreseeability were the criteria, every chattel seller would appoint the chattel its agent for service of procedure and amenability to suit would travel with the chattel. Foreseeability is not irrelevant, it applies to the foreseeability that certain conduct in and ties with a state will anticipate being brought to court in that state.

The Supreme Court adds to the minimum contacts doctrine:

They have to be contacts that arise from purposeful availment and
Foreseeability: Would reasonably lead defendant to anticipate being hailed into court in that state.

The r did not purposefully avail itself of the opportunity to conduct business in OK, even though it could foresee its products to be taken there.

Keeton v. Hustler Magazine Inc.

Plaintiff brings action against Hustler for libel. Hustler is an Ohio corp. The statute of limitations in Ohio has run, so she sues in New Hampshire. The Court finds jurisdiction because they sell 10,000-15,000 magazines per month there. This is continuous contact, and specific jurisdiction enters here because the suit arises directly from the sale of these magazines in the state of New Hampshire.

Calder v. Jones (1984)

Jones, entertainer sues the National Enquirer for libel. Jones is in California, the

Enquirer in Florida. Libel will cause injury where a person lives and should anticipate being held into court there.

Asahi Metal Industry Co. v. Superior Court (1987): The rivet case
Issue: Whether the service of summons upon Asahi was in accordance with due process.
Holding: The service of summons was not constitutional because a corporation must be guilty of an action purposefully directed toward the forum state, and introducing goods in the stream of commerce is not considered a purposeful action.
Rule: A state has jurisdiction over a defendant corporation if the corporation has performed direct actions toward the forum state, and merely placing products in the stream of commerce is not sufficient. Stream of commerce PLUS theory

Reasonableness factors to determine whether jurisdiction over foreign defendant is in accordance to “traditional notions of fair play and substantial justice”

Defendant’s burden
State interest
Plaintiff’s interest
Interstate judicial interests.
Lesnick v. Hollingsworth & Vose Co, (1994)

Make the filters of Kent cigarettes, know they will be sold in MD. Plaintiff brings suit in MD court, court says it has no jurisdiction because def. sold to KY and NJ, not directly serving MD market. To serve the MD market they would have had to (1) changed production to comply with MD relations or (2) set up a consumer communication network in MD. (Stream of commerce PLUS argument).

Burger King Corp. v. Rudzewicz (1985): The “Hey! this is not a real BK!” case.

Issue: Whether the exercise of the Florida long arm statute went against the principles of minimum contacts and fair play embodied in the Due Process Clause.

Whether a FL court can exercise personal jurisdiction over a foreign defendant.

Holding: The exercise of the Florida long arm statute did not go against the principles of minimum contacts and fair play embodied in the Due Process Clause because plaintiff directed his actions toward FL and jurisdiction over him would not be unfair.

Rule: A court can exercise personal jurisdiction over a foreign defendant if:

The defendant established minimum contacts with the state of FL and purposefully availed him/herself of the rights and protections of FL law, therefore reasonably foreseeing being hailed into court in FL.

Jurisdiction over the defendant is fair and reasonable. Factors:

Defendant’s burden
State interest
Plaintiff’s interest
Interstate judicial interests.
Shared state interest.
Zippo Mfg. Co. v. Zippo Dot Com (1997): The website problem
Issue: Whether PA’s Long Arm Statute (and the 14^th Amendment to the Constitution) applies to a foreign corporation doing business with PA residents exclusively over the Internet.
Holding: PA’s Long Arm Statute applies to a foreign corporation doing business with PA residents exclusively over the Internet if the company’s actions amount to purposeful availment, the claim arises from these actions, and jurisdiction is reasonable.
Rule: A state may exercise personal jurisdiction over a foreign corporation doing business with its residents exclusively over the Internet if the company’s actions amount to purposeful availment, the claim arises from these actions, and jurisdiction is reasonable.

Passive

Interactive

Clearly does business over the internet:

Posted information

Level of interactivity
Commercial nature of exchange

Contracts
“Knowingly repeated transmission of files”

3-prong test for jurisdiction:

Minimum contacts (purposeful availment & foreseeability of being hailed into court). Sliding Scale.
Claim arose from contacts
Jurisdiction over the defendant is fair and reasonable.

Factors for resonableness:

Defendant’s burden
State interest
Plaintiff’s interest
Interstate judicial interest

Subject Matter Jurisdiction

U.S. Const. Art 3, Sections 1 and 2; 28 U.S.C. §1332 (a) and (c).

U.S. Const. Art 3

Section 1. Judicial Power, Tenure and Compensation The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2.

Clause 1. Jurisdiction of Courts

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Clause 2. Supreme Court, Original and Appellate Jurisdiction

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Clause 3. Criminal Trial by Jury

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

28 USC § 1332. Diversity of citizenship; amount in controversy; costs

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between–

            (1) citizens of different States;

            (2) citizens of a State and citizens or subjects of a foreign state;

            (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

            (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

***

(c) For the purposes of this section and section 1441 of this title–

            (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and

            (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

Article III Section 1: Congress est. “inferior” federal courts.

Section 2: areas of subject matter jurisdiction for federal courts

– cases that arise between citizens of different states (diversity jurisdiction)

– cases “arising under this Constitution, the laws of the US, and Treaties made (federal question jurisdiction)

Complete diversity of all plaintiffs from all defendants is not constitutionally required.
Federal law can be an “ingredient” of the dispute
Supplemental jurisdiction: federal courts can hear state law claims between citizens of the same state if state law grows out of the same “common nucleus of operative facts” as a claim that meets the requirements of Article III.

To be able to hear a case, a court not only needs personal jurisdiction, it also needs subject matter jurisdiction. Federal courts have subject matter jurisdiction over claims:

Between states
between citizens of different states (diversity jurisdiction) if they meet the amount in question requirement
between citizens and aliens
involving foreign ministers & consuls
admiralty and maritime
arising under Constitution of federal law.

Most cases involve either diversity jurisdiction or those arising under federal law or the constitution.

Subject matter jurisdiction based on diversity of citizenship:

28 U.S.C. § 1332:

Citizens of different states
Amount of controversy > $75K

Basic requirements:

Complete diversity (all plaintiffs diverse from all defendants), but not constitutionally compelled
Citizenship of individual; (1) residence (2) plans to remain indefinitely
Corporation is citizen in (1) where it is incorporated (2) main place of business
Other types of businesses: consult decisional law
Citizenship is at the time of filing complaint
Amount of controversy can be satisfied by aggregating.
Amount of controversy must still be satisfied by injunction.

Subject matter jurisdiction of federal courts: constitutional & statutory magnitude.

How does the statute limit the constitution? Statutory and judge-made law

Complete diversity: if plaintiff A is from Nebraska and plaintiff B from Arizona are suing C from Arizona, there is no complete diversity. (All the parties on one side of the “v” must be diverse from all parties on the other side).
Amount of controversy: $75,000. This limits the amount of cases. Some members of the judiciary and bar want cases that arise in state to remain in state.

Individuals have one place of citizenship = domicile (everyone must have 1)

Corporations = (1) state of incorporation

(2) state where principal place of business is.

Sheenan v. Gustafson (1992): The Tropicana deal case

Issue: Whether a Minnesota federal court has subject matter jurisdiction over a defendant who has a presence in both Nevada and Minnesota.
Holding: A Minnesota federal court has subject matter jurisdiction over a defendant who has a presence in both Nevada and Minnesota only if there is a (1) presence in Minnesota and (2) defendant has indefinite plans to remain in Minnesota.
Rule: Two-Part test for domicile

(1) Presence

(2) Intention to remain indefinitely

An individual cannot have more than one domicile for subject matter jurisdiction purposes.

The burden of proof is on the plaintiff by preponderance of evidence (more than 50%) that the parties are diverse.

× Citizenship is determined at the time the complaint is filed.

Court must have both personal jurisdiction over all defendant and subject matter jurisdiction over the case itself- these should be thought of as distinct and separate. Even though a person can consent to personal jurisdiction, the same mechanism is not available for subject matter jurisdiction because the judge and court do not have the power to rule on certain cases. Therefore, questions of subject matter jurisdiction can be raised at any time.

Ankenbrandt v. Richards (1992): the domestic relations exception

Issue: Whether the domestic relations exception to diversity jurisdiction applies to a case involving alleged torts by the ex-husband and father of plaintiffs and his female companion, or whether the federal courts should abstain from hearing the case.
Holding: The domestic relations exception to diversity jurisdiction does not apply to a case involving alleged torts by the ex-husband and father of plaintiffs and his female companion, because it does not involve the issuance of a divorce, alimony or child custody decree, and the parties have diverse citizenship. The federal courts should not abstain from hearing the case.
Rule: The domestic relations exception applies only to cases involving the issuance of a divorce, alimony, and child custody decree.

The court then turns to Barber v. Barber (1859), where a wife was trying to get alimony from her ex husband who moved to another state. The wife sought the enforcement of the alimony decree by the federal courts. The court ruled that they (federal courts) did have jurisdiction to enforce the alimony decree. The dissent based this reasoning on the Judiciary Act of 1789, and how the chancery in England did not have jurisdiction over domestic matters (the Church did). The limitation to the jurisdiction of federal courts is cases of law (law court) and equity (chancery court) comes from English distinction. The majority did not disagree with this dicta.

Federal question jurisdiction

Guidelines for federal question jurisdiction:

Must be based on ¶‘s claim (not the answer)
Holmes test: (1) federal law creates the right that ¶ seeks to enforce, and (2) federal law has a private right of action.
If a federal statute has a private right of action, but the law that creates the right is a state law, there will probably be no subject matter jurisdiction.
A state cause of action can suffice if federal law is needed to prove ¶‘s case.

Louisville & Nashville R.R. Co. v. Mottley (1907): the free railroad for life case

Federal question

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 United States.

Issue: Whether the contract for free passes for transportation is unlawful.

Whether the statute violates the 5th Amendment.

Holding: No decision on this because the court does not have jurisdiction.

Rule:

2-prong test:

Well-pleaded complaint: least the plaintiff needs in the complaint to fully state the complaint against defendant, without anticipating response to the claim.
Establishes that federal law creates the cause of action or that the plaintiff’s right of relief depends on a resolution of a question of federal law.

The Court said the cause did not arise under the Constitution or federal laws. The anticipation of a federal defense does not grant federal question jurisdiction. It is not constitutionally mandated, if congress wanted, it could pass a statute giving federal courts jurisdiction over cases raising the federal question anywhere, but if does not. This case does not arise under the federal question because it is just a breach of contract case, and that is a state-based common law cause of action.

The Supreme Court can hear cases arising in state courts, so the federal question limitation only applies to lower federal courts. The Supreme Court can hear state cases.

Private right of action: Question of whether a person injured through the violation of a statute or rule can bring a cause of action if the law provides for a private right of action. The existence and violation of statute is not enough, it has to have a right of action for someone to be able to sue.

Tribal jurisdiction

Williams v. Lee (1959):

Issue: Whether an Arizona court has jurisdiction over a cause of action arising from a transaction between an Indian and a non-Indian within the Reservation.
Holding: An Arizona court does NOT have jurisdiction over a cause of action arising from a transaction between an Indian and a non-Indian within the Reservation because the transaction involved an Indian and took place in the Reservation.
Rule: The tribal courts have jurisdiction when a cause of action arises within a Reservation and is either by or against a member.

The state may not infringe on the rights of Reservation Indians to make and be ruled by their own laws.

Arizona Supreme Court said it had jurisdiction because no act of Congress had taken away it power.

SC- ability of Indians to govern themselves was in jeopardy.

* A state can assume jurisdiction over a Reservation if either its people or legislature vote to assume the responsibility of doing so. Arizona has not voted to do so.

but it appears as if in this case the court assumed jurisdiction, but they could not do it unless the people or legislature voted to do so.

Navajo Treaty of 1868: for the Navajo it was not “receiving” land, but giving up most of their land in return for a little portion of it. It was a grant of rights, not to the Indians, but from them.

Congress, citizens of the state, state legislature, and Supreme Court can change the status of a reservation against Indian will.

In disputes between non-Indians, the Supreme Court does not think that the tribal courts have jurisdiction.

The Supreme Court is in charge of the decision of whether or not the tribal courts have jurisdiction within their land.

Ithaca is on tribal land, should it be under tribal jurisdiction? It is important to note that it is the US judiciary and legislature that decides the question.

Trading post: central to a reservation, unique spot. It is important for the reservation to have jurisdiction over it because it is an island of activity within the reservation that impacts the life of the reservation.

The Court uses precedent from other tribes and applies it to the Navajo Nation.

Indian Child Welfare Act: cases involving child welfare are under the jurisdiction of tribal courts.

When speaking of subject matter jurisdiction it is usually between states and federal courts, but it also deals with tribal courts.

Congress defined Indian Country in 1948 in 18 USC § 1151:

1151. Indian country defined

Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,

(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

The Court refused to speak on the issue of claims against non-Indians arising inside the reservation in National farmers Union Ins. Cos. v. Crow Tribe (1985).

Montana v. United States (1981) shows a narrower view of Indian tribal jurisdiction by defining tribal sovereignty extending only to self-government and control of internal relations with 2 exceptions:

Non-members who enter consensual relationships
When the conduct of non-Indians threatens or affects the “political integrity, the economic security, or the health or welfare of the tribe.” (257).

Atkinson Trading Co. v. Shirley (2001) held that the tribal court could not tax non- Indian guests staying at a hotel on fee land within the Navajo reservation. (Even though they benefited from the services like fire protection provided by the tribe).

Nevada v. Hicks (2001) The Court applied Montana to trust land for the first time holding that the tribal court had no jurisdiction over police officers on trust land. Tribal courts are not courts of general jurisdiction.

VENUE

28 U.S.C. §1391 and §1441

28 USC § 1391. Venue generally

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (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, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (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, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.  

(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

1404. Change of venue

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought

Venue is a house-keeping matter, and not constitutionally mandated. Some states are large and courts may be very far or in a different time zone. Venue principles have certain limitations.

Venue like personal jurisdiction is waivable by the defendant. If there is a question about venue, it is up to the defendant to challenge.

Every state has a venue statute, and they will say something about what county the lawsuit needs to be brought in. There is personal jurisdiction over defendant over entire state, but the venue statutes point to the counties in which the transaction occurred- if the plaintiff files in another county and it is not objected to, the court has jurisdiction.

Some states have several districts, and venue rules point litigants toward districts and not states. People subject to state jurisdiction often find that the will be called into court in a specific district.

Venue statutes deal with where the defendant resides, not plaintiff.

3 prerequisites to file a complaint:

Personal jurisdiction
Subject matter jurisdiction
Venue

REMOVAL

28 USC § 1441. Actions removable generally

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

(d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

(e)

(1) Notwithstanding the provisions of subsection (b) of this section, a defendant in a civil action in a State court may remove the action to the district court of the United States for the district and division embracing the place where the action is pending if–

(A) the action could have been brought in a United States district court under section 1369 of this title; or

(B) the defendant is a party to an action which is or could have been brought, in whole or in part, under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original matter.

The removal of an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of removal may also be filed before trial of the action in State court within 30 days after the date on which the defendant first becomes a party to an action under section 1369 in a United States district court that arises from the same accident as the action in State court, or at a later time with leave of the district court.

(2) Whenever an action is removed under this subsection and the district court to which it is removed or transferred under section 1407(j) has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determination of damages, unless the court finds that, for the convenience of parties and witnesses and in the interest of justice, the action should be retained for the determination of damages.

(3) Any remand under paragraph (2) shall not be effective until 60 days after the district court has issued an order determining liability and has certified its intention to remand the removed action for the determination of damages. An appeal with respect to the liability determination of the district court may be taken during that 60-day period to the court of appeals with appellate jurisdiction over the district court. In the event a party files such an appeal, the remand shall not be effective until the appeal has been finally disposed of. Once the remand has become effective, the liability determination shall not be subject to further review by appeal or otherwise.

(4) Any decision under this subsection concerning remand for the determination of damages shall not be reviewable by appeal or otherwise.

(5) An action removed under this subsection shall be deemed to be an action under section 1369 and an action in which jurisdiction is based on section 1369 of this title for purposes of this section and sections 1407, 1697, and 1785 of this title.

(6) Nothing in this subsection shall restrict the authority of the district court to transfer or dismiss an action on the ground of inconvenient forum.

(f) The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.

Removal operates when plaintiff has filed in state court and defendant wants it moved to federal court. This is a tool for the defendant in some instances.

Unless something is within the exclusive jurisdiction of federal courts, a plaintiff can file in either.

Federal Removal Jurisdiction

A suit brought in state court may be removed to federal court (requirements: 28 USC § 1441). Removal is to nearest federal court.

Removal Statute Requirements :

(a) Action could have originally have been brought in Federal Court

(b) all defendants must join petition for removal, unless it satisfies § 1441 (c)

(c) If basis is diversity and defendant is citizen of state of original action, defendant cannot remove on diversity basis.

(d) Defendant may not begin to defend action before petition for removal.

In World-Wide Volkswagen Plaintiff’s lawyer wants to argue in state court and must file a lawsuit that cannot be removed. Must file a lawsuit that could not have been brought to federal court in the first place. The claim is a tort and there must NOT be complete diversity of citizenship to avoid removal into court. If they sue Audi, or the importer, neither is a citizen of New York like the plaintiff. If the plaintiff goes to court in NY, it would be removed to federal court.

With Seaway and WWV, there is complete diversity of citizenship. The litigation challenging personal jurisdiction was challenged by the manufacturers who wanted to get out the NY defendants and then there would be complete diversity of citizenship. The defendants won and got the case removed to federal court.

Procedure for removal:

Notice for removal must be filed within 30 days of receipt of ¶‘s pleading in state court
If motion to remand back to state court is based on failure of procedural requirements, it must be made within 30 days after removal
Motion to remand on basis of lack of subject matter jurisdiction can be raised at any time.

Change of venue is different from removal.

Plaintiffs can pick any place where the court has Personal jurisdiction, Subject matter jurisdiction, and Venue. The defendant may ask the judge for a change of venue. The standard is “the convenience of parties and witnesses, in the interest of justice.”

1404. Change of venue

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought

A defendant can be sued in any place with general jurisdiction, but this may not be the most convenient. It is entirely up to the judge.

Forum Non Conveniens.

Forum non conveniens: The doctrine that an appropriate forum — even though competent under the law — may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place.

Piper Aircraft v. Reyno (1981): The plane that crashed in Scotland full of Scotts.

Issue: Whether a US Court can deny a motion of forum non conveniens on the ground that the alternative forum is less advantageous to the plaintiff and offers less damages.
Holding: A motion to dismiss on ground of forum non conveniens cannot be defeated by a plaintiff by showing that the law in the alternative forum is less favorable.
Rule: To defeat a motion of dismissal on forum non conveniens must be balanced according to the private and public interest factors.
Rule of Law:

Balancing test:

Private interest factors	Public Interest Factors
Ease of access to proof Availability of unwilling witnesses/ cost of witnesses View of Premises Practical problems RE “easy expeditious, inexpensive” trials	Administrative difficulties (i.e. court congestion) Local interest in local matters Holding trial in forum whose law will apply Avoid unnecessary conflict of laws/ interpretation of foreign law Unfair to require jury duty in unrelated forum

Motion to dismiss for lack of jurisdiction or venue

Removal

Transfer (Change of venue) (out of one federal dist. court to another)

Doctrine of forum non conveniens: judge-made. Option available to defendant. Under the standards in the instant case, some other court is better suited to hear the case. This is not transfer because forum non conveniens does not operate on the state level or at an international level. Transfer is not possible.

Plaintiffs want case heard in US because:

Scotland does not have strict liability
Defendants can only sue for “loss of support and society” in Scotland
Jury trial
More extensive discovery
Contingency fees
Loser pays rules in other countries

Plane crash in Scotland. Plaintiff theory is crash was caused by defective equipment. It was brought in state court and removed to federal court (diversity) and transferred to PA because one of the defendants is located there. Then they filed to dismiss on forum non conveniens.

The Court of Appeals thinks the case should not be dismissed because Scotland is less favorable to the plaintiff. The SC says this reason is not enough to apply forum non conveniens. To rely on this would create a heavy burden for the court to understand foreign law enough to make a decision.

TEST:

Balancing test between private interests and public interest

Whether trial in chosen forum would “establish oppressiveness and vexation to a defendant out of all proportion to the plaintiff’s convenience.” (871).

Balance up to trial judge discretion, only reversed for abuse of discretion

Private interest factors: (footnote 6 p.871)

Removal is not discretionary, it is a right of defendants if they meet the criteria. Transfer is discretionary on the part of the judge- for convenience of witnesses and parties and interest of justice.

Plaintiff’s choice of forum gets an amount of deference. The court can condition dismissal of defendant agreeing on certain things so as to not deprive the plaintiff of having an adequate day in court.

International Human Rights

1960s victims of human rights violations emigrated to the US and their stories became known. Attorneys working on domestic civil rights in NYC (www.ccr-ny.org), and invented a body of law by looking at the US code and finding a 1789 provision (Alien Torts Claims Act): an alien can sue in federal court for violations of the law of nations. Lawsuits were brought and created a body of law on human rights.

Still, not everyone can be sued in a US court unless the court has personal jurisdiction over them.

It is not possible to sue a foreign corporation without a principal place of business in the state; there is no jurisdiction over a foreign corporation because the cause did not arise out of the corporation’s ties with the state.

General jurisdiction therefore is the only way to exercise jurisdiction over the foreign corporation. General jurisdiction cannot be served to an individual:

Wiwa v. Royal Dutch Petroleum Co. (2001): The Shell Nigeria human rights case

Issue: Whether a US court has personal jurisdiction over a defendant company accused of human rights violations in a foreign country.
Holding: A US Court can exercise jurisdiction over a foreign corporation accused of human rights violations in a foreign country if the court can exercise personal jurisdiction over that company.
Rule: Under New York law, a corporation is “doing business” in New York, and is therefore present in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York not occasionally or casually, but with a fair measure of permanence and continuity. (Westlaw).
Rule of Law: NY Long Arm Statute: “Doing business in NY.” (both for state and federal courts).

Case law: Companies with only ancillary relationships to maintain a NYSE listing are not “doing business” in NY for purposes of the Long-Arm Statute.

Constitution: 1. continuous, systematic, substantial contacts, 2. reasonableness

Reasoning: NY Long Arm Statute: “Doing business in NY.”- The Investor Relations Office was an agent for the defendants, and went well over taking ancillary steps in support of listings on the NYSE.

Constitutional: “1. Continuous, systematic, substantial contacts, 2. reasonableness” The corporation has a physical presence in NY, the Investor Relations Office is enough to satisfy the contacts (1) requirement. Jurisdiction would be fair because it is not inconvenient or burdensome for defendants- have had a NY law firm for 40 years.

Private Interests:

Defendants want to litigate in England, arguing that the documents are in England and shipping would be burdensome, Nigerian witnesses would be more expensive to fly to NYC than to London, but the court is not convinced.

Litigation in NY would not be an inconvenience because the defendants have offices and counsel in NY.

The burden on the plaintiffs would be substantial.

Public Interests:

Shell is a British corporation and Nigeria was a part of the Commonwealth at the time. The court says that these factors are important but not overriding. The court is not persuaded.

New Information, questions, etc:

1- Minimum contacts

2- fairness:

Private interest factors	Public Interest Factors
Ease of access to proof Availability of unwilling witnesses/ cost of witnesses View of Premises Practical problems RE “easy expeditious, inexpensive” trials	Administrative difficulties (i.e. court congestion) Local interest in local matters Holding trial in forum whose law will apply Avoid unnecessary conflict of laws/ interpretation of foreign law unfair to require jury duty in unrelated forum

Constructing a Civil Lawsuit

History of Civil Procedure and Complaint.

Rules 8 (a), (b), (e), (f) and 9(b)

The Writ system: writs were purchased from King of deputy, said what person claimed happened, and was served against the opposing party. The problem with this system was that it was complicated and if the wrong writ was chosen, the person lost the case. There could only be one issue, and it had to be claimed in advance. There was no pleading in the alternative, like today. Defendant had to pick defenses early on and if a case was defended in the wrong way, the plaintiff automatically won. Losing for technicalities instead of the merits of the case was very common.

Law v. Equity: (Fed. Rules abolished difference in 1938).

Law courts awarded money damages to settle disputes while the equity courts provided equitable remedy (specific performance, injunctions). The Chancery courts in England were courts of Equity.

Today the decision of trial by jury is decided between which court would have heard it (common law courts had juries, equity courts did not).

The 1938 merger of law and equity meant that a person could raise a legal and equitable remedy.

As writs are abolished, there was still a system in which pleadings (written docs filed in litigation) were designed to narrow down to one single issue before the trial.

The Field Code: limits pleading, abolishes the difference between law and equity, etc. But it made the distinction between facts and legal conclusions. It was thought to be an improvement, but still had problems. Modern-day discovery was still not available under the Field Code.

1938Federal Rules of Civil Procedure and analogous state rules:

Statute: The Rules would not abridge, enlarge, or modify any substantive rights, but the Rules have an impact on the outcome of a trial in practice. The Rules changed:

All civil actions in one form,
greatly simplified pleadings,
greatly expanded discovery.

Short preview of the civil case according to The FRCP:

Plaintiff files the complaint Rule8

Between complaint and answer defendant can file motions to dismiss the case.

Motion to dismiss for lack of personal jurisdiction Rule 12

“ lack of subject matter jurisdiction Rule 12

“ lack of venue Rule 12

“ failure to state a claim (“So what?”) Demurrer. 12(b)(6)

If defendant cannot dismiss, defendant files and answer which admits or denies anddefenses. Rule 8

Pleadings can be amended under Rule 15: in response to the concern that if something new is discovered the pleading can be amended and the case can go forward Theory: trying to get to the merits of the problems and decide upon them without technicalities that hampered the process in the past- trying to do justice.

Discovery Rule 26 : ask questions in person or writing of opposing parties, reluctant witnesses, obtain documents, etc to help further your case. There should be no surprises during trial due to this process. $ to conduct discovery is not unlimited, so some parties may not be able to investigate all the information given to them by the other side.

FRCP have in theory turned the 1938 rules into plain English, and they go into effect December 1, 2007- but all prior case law will refer to old rules.

Case planning.

Rule 8

Rule 8. General Rules of Pleading (old rules)

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

(b) Defenses; Form of Denials. A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court’s jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11

(e) Pleading to be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.

(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.

RULE 8 COMPLAINTS: Revolutionized the pleading

Every complaint must have:

Jurisdictional statement
Short plain statement of the claim showing the claimant is entitled to relief.

1957- Conley : Rule 8 institutes notice pleading– to put the other side on notice so they can defend a claim.

Conley v. Gibson (1957): The discriminating union case.

Issue: Whether plaintiffs failed to state a claim by not providing enough specific evidence in their complaint against the defendants for violating the RLA’s provision against discrimination.

Holding: Plaintiffs did not fail to state a claim by not providing enough specific evidence in their complaint against the defendants for violating the RLA’s provisions against discrimination because it does not appear beyond doubt that the plaintiff can prove nothing to support his claim that he is entitled to relief.

Rule: A complaint cannot be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that entitle him to relief.”

Rule of Law:

Railway Labor Act (RLA).

Rule 8

Rule 8. General Rules of Pleading

(a) Claims for Relief.

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

Reasoning: Even though a union can negotiate an agreement with an employer that is fair to all, the administration of this agreement can be discriminatory if it has the tacit or active consent of the union.

The plaintiffs did not sue the employer because the statute (1964) that prohibited firing on the basis of race had not been passed, so they had no cause of action.

The pleading needs enough facts to give the defendant fair notice

RULE:

A complaint cannot be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that entitle him to relief.”

Arguments in favor of making dismissal easier is that many claims are frivolous and need to be weeded out. The plaintiff do not want this because they need the discovery phase too get enough proof against the defendant.

Bell Atlantic Corp. v. Twomby (2007)

Issue: Whether a § 1 complaint can survive a motion to dismiss when it alleges that major telecommunications providers engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting agreement, as distinct from identical, independent action.

What a plaintiff must plead in order to state a claim under § 1 of the Sherman Act in accordance with Federal Rule of Civil Procedure Rule 8.

Holding: In applying these general standards to a § 1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

Rule: When allegations of parallel conduct are set out in order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.

Rule 8 should not be read as literally as in Conley, but rather the complaint must contain direct or inferential allegations proving that recovery can be obtained under some legal theory.

Rule of Law:

Telecommunications Act of 1996:

1 of the Sherman Act, 15 U. S. C. § 1

1. Trusts, etc., in restraint of trade illegal; penalty

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

Rule 8

Conley v. Gibson, 355 U. S. 41, 47 (1957) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,”

Conley v. Gibson spoke not only of the need for fair notice of the grounds for entitlement to relief but of “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U.S., at 45-46.

Reasoning: * Conscious parallelism is not unlawful on its own because parallel conduct is just as compatible with conspiracy as it is with normal business practices. It is therefore neutral when it comes to Rule 8 pleading.

* Proof of a § 1 conspiracy must include evidence tending to exclude the possibility of independent action

* Discovery in an antitrust proceeding is very expensive and this practical interest is very important.

* the statement in Conley v. Gibson “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief” should not be taken so literally. Other courts have applied Conley in a less literal way: “[i]n practice, a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1155 (9th Cir. 1989).

Twomby claims that the defendants impeded this and did it in agreement with each other.

Factors facilitating coordination by aiding agreement or discouraging cheating: to prove agreement, you have to prove PLUS FACTORS- not just charging the same price.

Number of firms
inelastic market
facilitating practices

Notion of minimum that a plaintiff has to come up with to go on with an antitrust case has come up prior to this case. Monsanto Co. v. Spray-Rite Service Corp. (1984). Proof of a § 1 conspiracy must include evidence tending to exclude the possibility of independent action.

The Court sets out a standard of conceivability and plausibility that overrules Conley. The statement in Conley v. Gibson “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief” “has earned it retirement.”

This new standard need clarifying, and this will be done by district court judges as they decide to grant or deny motions to dismiss.

There is confusion- The Supreme Court is not abandoning the language of Rule 8a, but it is likely to result in many motions to dismiss for failure to state a claim with allegations that the complaints do not have a factual basis.

The significance of this case is more dramatic when the defendant has evidence that only he/she can get.

Forum shopping: strategic about the competency of judges, composition of jury, delay, venue, and personal jurisdiction.

State courts have last word on what state rules of civil procedure mean. 26 states and DC interpret pleading rule along the lines of the Conley opinion.

It may turn out that a case that can be brought in either state or federal court may do better for the plaintiff in state court, while defendant will try to remove to federal court. Plaintiff lawyers will try to file non-removable pleas (no federal question, file diversity action where someone is a citizen, or not get complete diversity).

Twombly has no precedential value on state rules of civil procedure.

Ethics

RULE 11

Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(a) Signature.

Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party.

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,–

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court’s Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

(d) Inapplicability to Discovery.

Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.

Rule 11 is the subject of political controversy. Has to do with the role of litigation in the social and political system.

Rule 11 was there since 1938 since the rules were written, there is a revision in 1983 that bring controversy that leads to another change in 1993 (current rule). When there is controversy about too much litigation, Rule 11 is always talked about. Some want to go back to the 1983 rules, and 1995 produced a few changes related to Rule 11 and Rule 8 for shareholder derivative suits (sue corporation by shareholders).

BASICS:

1983 Rule 11

1993 Rule 11

Mandatory Sanctions: When rule is violated, court must impose sanctions
Objective standard of reasonable inquiry
Signing denotes merit
Geared toward punishment

Objective standard of reasonable inquiry
Signing denotes merit
Increased trial judge discretion on imposing sanctions
De-emphasize monetary sanctions,
Sanctions likely paid to court, but still allowance to pay non-violator attorney
Geared entirely toward deterring bad behavior. Sanctions imposable only if warranted against deterring.
21-day safe-harbor provision

4 US Supreme court cases under 1983 Rule:

Pavelic & LeFlore v. Marvel Entertainment Group
Business Guides v. Chromatic Communications
Cooter and Gell v. Hartmax
Willy v. Coastal Corp.

21-day safe harbor provision:

Party moves for sanctions under Rule 11 (not filed with the court) served, and the opposing party has 21 days to withdraw offending piece of paper and it is never filed.

If not served but just filed, this is a violation of Rule 11. The Rule is not optional.

If a complaint is filed, you can dismiss it voluntarily and start again- has nothing to do with Rule 11.

Why change 1983 version of Rule 11?

Chilling effect
In certain litigation, like civil rights cases, have little evidence and attorneys are afraid to bring them because of sanctions.
Politics: frivolous litigation under 1983 Rule 11, but not as big a problem as politicians and media make it out to be. (Unbalanced reporting).

Difference in sanctions: 1993 mostly monetary damages paid to court- in 1983 was a lucrative business because sanctions paid to non-violating party. Punishment v. deterrence. 1983 incentive for opposing counsel to become enforcer of Rule.

New Rule 11 does not offer the incentive to be followed, but if non-violating attorneys will not have a monetary incentive to have Rule 11 followed, no one will.

So far, 1993 Rule 11 holds firm, even though there is controversy surrounding the role of litigation in the US political system.

This is about what you sign your name to, although there is a continuing obligation if you learn that what you signed is in error, you need to stop arguing

Business Guides, Inc. v. Chromatic Communications Enterprises (1989): The retail directory seeds case.

Issue: Whether Rule 11 imposes the objective standard of reasonable inquiry on a client as well as an attorney who sings pleadings, motions, or other papers.

Holding: Rule 11 imposes the objective standard of reasonable inquiry on a client as well as an attorney who sings pleadings, motions, or other papers.

Rule: Rule 11 does not distinguish between attorneys and clients in that they are both to be held to the objective standard of reasonable inquiry.

Rule(s) of Law:

Rule 11

Reasoning: * Signing denotes merit and says to the court that whatever is signed needs to be taken seriously.

Illustrates what has not been changed

Rule 11 (b)(3)

– Factual contentions have or will likely have evidentiary support after discovery.

– Obligation to make reasonable inquiry under the circumstances.

Kraemer v. Grant County (1990): The one about the girl and the dead fiancée with his parent and the sheriff in collusion.

Issue: Whether Lawson performed reasonable inquiry into the facts of a conspiracy case before filing the complaint.

Holding: Lawson performed reasonable inquiry into the facts of a conspiracy case before filing the complaint because under the circumstances of a conspiracy claim against hostile defendants, there are little facts available until the time of discovery, and the research that Lawson did was as much as he could.

Rule: “If discovery is necessary to establish a claim, then it is not unreasonable to file a complaint so as to obtain the right to conduct that discovery.

Rule(s) of Law:

Rule 11

Frantz v. US Powerlifting Federation (1987): “Rule 11 should not bar the courthouse door to people who have some support for the complaint but need discovery to prove their case.

Reasoning: * The higher courts should give deference to the lower court on Rule 11, but not complete deference.

* Lawson had to prove conspiracy, which can be difficult because in these cases most of the information is held by hostile defendants who will not give up the information unless they are compelled to do so through discovery.

* Rule 11 was not meant to undermine zealous advocacy and this is especially true in civil rights cases involving unpopular defendants.

Saltany v. Reagan (1989): The US strike on Libya case

Issue: Whether a district court has discretion to impose sanctions once it has found a violation of Rule 11 (1983 version).

Holding: A district court does not have discretion to impose sanctions once it has found a violation of Rule 11 (1983 version) and MUST impose a sanction.

Rule: The court must impose a sanction once it has found that Rule 11 (1983) has been violated.

Rule(s) of Law:

Rule 11

FSIA

Reasoning: * The court is not a forum for social and political protests.

* Plaintiff violated Rule 11 because “ a foreign state’s use of military allegedly in violation of international law fell outside any of the exceptions to sovereign immunity provided by the FSIA”

Committe v. Dennis Reimer Co., L.P.A. (1993)

Issue: Whether a court should award attorney’s fees to a pro se plaintiff

Holding: A court should only award costs and expenses pursuant to the litigation, but should not award attorney’s fees to a pro se plaintiff.

Reasoning: * On Personal jurisdiction: unlike subject matter jurisdiction, it is waivable. If defendant fails to raise the defense of lack of personal jurisdiction in the initial motion, it is waived under Rule 12(b)(2).

* Upon inquiry, defendant should have known that they could no longer raise the defense and in doing so have violated Rule 11.

* POLICY: Not granting attorneys fees because it would work as a dis- incentive for especially civil rights plaintiffs to seek counsel, which would be more favorable for them in the long run.

Draft Complaint.

See Rule 4 for Service

Pre-Answer Motions and Answer.

Rules 7, 8 (b), (d); 12

Generally

Rule 7. Pleadings Allowed; Form of Motions and Other Papers (new)

(a) Pleadings. Only these pleadings are allowed:

(1) a complaint;

(2) an answer to a complaint;

(3) an answer to a counterclaim designated as a counterclaim;

(4) an answer to a crossclaim;

(5) a third-party complaint;

(6) an answer to a third-party complaint; and

(7) if the court orders one, a reply to an answer.

(b) Motions and Other Papers.

(1) In General. A request for a court order must be made by motion. The motion must:

(A) be in writing unless made during a hearing or trial;

(B) state with particularity the grounds for seeking the order; and

(2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers.

Rule 12: Pre-Answer motions and answers

Rule 12: Pre-answer motions but can be included in your answers. This is a strategic matter most of the time. Answer filed after motion is resolved.

A motion is not a pleading, pleadings ask for relief (complaints, etc.) A motion is anything asked of the court, no matter what it is: more time, judge ruling on any matter, etc.

Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(a)             Time to Serve a Responsive Pleading.

            (1)             In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

                        (A)             A defendant must serve an answer:

                                    (i)             within 20 days after being served with the summons and complaint; or

(ii)             if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

                        (B)             A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.

(C)             A party must serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time.

(2)             United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or                         employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3)             United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4)             Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A)            if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the court’s action; or

(B)             if the court grants a motion for a more definite statement, the responsive pleading must be served within 10 days after the more definite statement is served.

(b)            How to Present Defenses. 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:

(1)             lack of subject-matter jurisdiction;

(2)             lack of personal jurisdiction;

(3)             improper venue;

(4)            insufficient process;

(5)            insufficient service of process;

(6)            failure to state a claim upon which relief can be granted; and

(7)            failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c)             Motion for Judgment on the Pleadings. After the pleadings are closed–but early enough not to delay trial–a party may move for judgment on the pleadings.

(d)             Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the             motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e)             Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f)             Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1)             on its own; or

(2)             on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.

(g)             Joining Motions.

(1)             Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2)             Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), 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.

(h)             Waiving and Preserving Certain Defenses.

(1)             When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:

(A)             omitting it from a motion in the circumstances described in Rule 12(g)(2);                                     or

(B)             failing to either:

(i)             make it by motion under this rule; or

(ii)             include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2)             When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A)             in any pleading allowed or ordered under Rule 7(a);

(B)             by a motion under Rule 12(c); or

(C)             at trial.

(3)             Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i)             Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7)– whether made in a pleading or by motion–and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

Rule 12 allows a r to move for dismissal before answering.

Rule 12(b)(1)-(3) are immediately fatal to the case and the court must dismiss.
Rule 12(b) (3),(4), and (7) can be fixed by amendment
Rule 12(b)(6) is the motion to dismiss for failure to state a claim. ¶ will usually be given the chance to amend.
Rule 12(g),(h) state that if 12(b)(2)-(5) defenses are not stated in a pre-answer motion or in the answer, it is waived.
Rule 12(h)(3)- court must dismiss for lack of subject matter jurisdiction at any time.

Committe v. Dennis Reimer Co., L.P.A. (1993)

Party was violating Rule 11 in that it was a frivolous claim to ask for dismissal of lack of personal jurisdiction because it had been waived because it had not been raised in the answer or pre-answer motion. Rule 12(b)(2)

Rule 8: Defenses and denial in Answers

Rule 8. General Rules of Pleading (old rules)

(b) Defenses; Form of Denials. A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court’s jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11.

(d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

Zielinski v. Philadelphia Piers, Inc. (1956): The guy who sued the wrong company because their name was stenciled on the side of the forklift case.

Issue: Whether the r violated Rule 8 (b) because they did not specifically deny that they controlled the forklift, and did not alert ¶ to their mistake.

Holding: Due to their violation of Rule 8 (b), the r will not be able to deny agency because otherwise the ¶ would be deprived of his right of action due to the fact that the statute of limitations to sue Carload had passed.

Rule: If a r knowingly misleads ¶ about agency in the answer and this misleading information would deprive ¶ of right of action, the r is required to admit agency.

Rule(s) of Law: “Under circumstances of case wherein plaintiff sued wrong defendant supposing him to be employer of allegedly negligent vehicle driver, and portion of defendant’s answer directed to complaint paragraph alleging the agency was inadequate to comply with rules or to apprise plaintiff of plaintiff’s error, and defendant’s answers to interrogatories and driver’s pretrial testimony were misleading because of inaccuracy, defendant was equitably estopped to deny agency after time limitation barred action against true employer.”

‘A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. * * * Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.’

“Under circumstances where an improper and ineffective answer has been filed, the Pennsylvania courts have consistently held that an allegation of agency in the complaint requires a statement to the jury that agency is admitted where an attempt to amend the answer is made after the expiration of the period of limitation.”

Affirmative Defenses

Rule 8 (c); B/M/S: 334-338.

Affirmative defenses must be in the answer and in the responsive pleading.

Affirmative answers: defendant says, “true, but I still win.”

Affirmative defenses listed in Rule 8(c). If something is an affirmative defense it is absolutely required in the answer. This is important to put the plaintiff on notice that the defendant is complaining.

RULE 8

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

accord and satisfaction;
arbitration and award;
assumption of risk;
contributory negligence;
discharge in bankruptcy;
duress;
estoppel;
failure of consideration;
fraud;
illegality;
injury by fellow servant;
laches;
license;
payment;
release;
res judicata;
statute of frauds;
statute of limitations; and
waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

Ingraham v. United States (1987): The government medical malpractice case in which the government forgot to add the Medical Liability and Insurance Improvement Act of Texas (MLIIAT) or mention it at trial then moved to amend.

Issue: Whether a statutory limitation defense is an affirmative defense that is waived if not raised in time under Rule 8(c).

Holding: A statutory limitation defense is an affirmative defense that is waived if not raised in time under Rule 8(c) because it is a defense that is likely to surprise the opposing party and should therefore not be allowed under the provisions of the Rule.

Rule: A statutory limitation defense is an affirmative defense that is waived if not raised in time under Rule 8(c) because it is a defense that is likely to surprise the opposing party and should therefore not be allowed under the provisions of the Rule.

Rule(s) of Law:

Rule 8(c)

Bull’s Corner Restaurant v. Director, FEMA: “where an [affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise…technical failure to comply with Rule 8(c) is not fatal.”

Ingraham says they would have proven more actual damages and would have introduced evidence against the statute. The defendants were not allowed to come back in and raise an issue that would have an effect on the amount of damages.

All affirmative defenses should be raised in the answer or within the statute of limitations to amend. If raised at least at trial, the court has discretion to allow the amendment if it is not an unfair surprise to opposing party.

RULE 15: Amended Pleadings. Amending pleadings- not in common law.

Rule 15(a) and 15 (c);

Rule 15(a)(1)(A) allows a ¶ to amend before the answer to the complaint

Rule 15(a)(1)(B) allows a r leave to amend within 20 days after filing the answer

After this time has run, the judge will allow amendments under

Rule 15(a)(2) if it does not delay the trial or impose some additional burden on the other party. The closer to trial, the less likely the amendment will be granted.

Rule 15(c)(2) amendments to add a new claim: allows amendment based on whether the amendment relates back to the conduct, transaction, or occurrence asserted in the original pleading, even if the statute of limitations for the amendment claim has run in the time between filing and before the amendment. The amendment treats the new claim as if it had been filed from the outset of the case.

Rule 15(c)(3) deals with amendments that add a new party. This has three requirements that all must be met before a party is allowed to amend to include another party.

Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course:

(A) before being served with a responsive pleading; or

                        (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10             days after service of the amended pleading, whichever is later.

(b) Amendments During and After Trial.

            (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The             court may grant a continuance to enable the objecting party to meet the evidence.

            (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties express or implied consent, it must be treated in all respects as if raised in the pleadings. A party             may move–at any time, even after judgment–to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

(c) Relation Back of Amendments.

            (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

                        (A) the law that provides the applicable statute of limitations allows relation back;

                        (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading; or

                        (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for                         serving the summons and complaint, the party to be brought in by amendment:

                                    (i) received such notice of the action that it will not be prejudiced in defending on the merits; and

                                    (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

            (2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are             satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney’s designee, to the Attorney General of the United States, or to the officer or             agency.

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

Moore v. Baker (1993) & Bonerb v. Richard J. Caron Foundation (1994)

To argue amendment under Rule 15 defendant should have been put on notice by the original complaint that such a claim could be made. This is important because there is a statute of limitations because the later it gets, it gets more difficult to prove facts and it may be impossible to defend against something that has happened very long ago. It is unreasonable to make people keep track of everything they do indefinitely.

Moore v. Baker (1993): The “I’ll sue for pre-op failure to inform and later amend for op negligence” case.

Issue: Whether, in accordance to Rule 15, the original complaint gave notice to r about the amendment sought.

Holding: The original complaint gave NO notice to r about the amendment sought because the amendment (negligence during and after the operation) did not relate back to the action (pre-op information) in the complaint.

Rule: If the statute of limitations to amend a claim has run, under Rule 15, the claim can be amended only if it relates back to the actions set forth in the original pleading and puts the r on notice.

Rule(s) of Law:

Rule 15

Reasoning: * Negligence would need a different set of facts than the current claim for breach of duty of informed consent.

Defendant: separate events

Plaintiff: same event

What was the transaction, occurrence? Is each visit to a doctor separate, or the addressing of one problem over a period of time on single transaction. * The transaction can also be viewed as a single transaction, the illness can also be viewed as a single transaction, but the court does not do this.

Bonerb v. Richard J. Caron Foundation (1994) The chick who slipped and fell in the basketball court of the rehab center.

Issue: Whether under Rule 15 the r was put on notice by the original claim to the new claim in the amendment.

Holding: Under Rule 15 the r was put on notice by the original claim to the new claim in the amendment because even though the amendment changes the legal theory of the case, it rests upon the same factual basis that the plaintiff was put on notice for in the complaint.

Rule: Under Rule 15, an amendment may be allowed by the court “when justice so requires.”

Test:

(1) Relates back to the same nucleus of operative facts

(2) Original complaint gives sufficient notice

(3) Fair

Rule(s) of Law: Rule 15: provides that once time for amending a pleading as of right has expired, a party may request leave of court to amend, which “shall be freely given when justice so requires.”

Forman v. Davis: “This provision has been liberally construed, and leave to amend should be granted absent undue prejudice to the party opposing the amendment, undue delay on the part of the party seeking the amendment, or bad faith. However, an amendment which seeks to add a time-barred claim would be futile, and should not be allowed unless the otherwise untimely claim “relates back” to the date of the original pleading. Fed.R.Civ.P. 15(c); Oliner v. McBride’s, supra”

Reasoning: This is a change in legal theory rather than a change in facts.

Is it the same duty for both legal theories (negligence, malpractice)/ facts?

facilities, area

need expert testimony

Rule 15: A complaint cannot be amended unless the amendment sets forth the same conduct, transaction, etc. of the original complaint.

Joinder of Claims and Parties.

RULES OF JOINDER:

Rules 13, 18(a), 14(a), 14(b), 20, and 42(b);

* If the case involves only 2 parties, the only issue is JOINDER OF CLAIMS: Rule 18 (a)

Rule 18. Joinder of Claims and Remedies

(a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.

* If the case involves more than one ¶ or more than one r. This is at the election of the parties and is not necessary, because separate lawsuits can be brought.

Courtroom efficiency is important, but not compelling. The Rules do not say that parties MUST be joined. PARTY CONTROL is a hallmark of adversary system. Parties can sculpt their own lawsuit and have options of whether to include everything in a single lawsuit or separately. There is however no complete control.

Rule 20 covers the joinder of parties:

After they are properly joined

Rule 18 & Rule 13

Allow joined parties to assert additional claims against opposing parties

Joinder of claims

Rule 20. Permissive Joinder of Parties

(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences;                                     and

(B) any question of law or fact common to all plaintiffs will arise in the action.

(2) Defendants. Persons–as well as a vessel, cargo, or other property subject to admiralty process in rem–may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or                                     occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to             their rights, and against one or more defendants according to their liabilities.

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

It is generally not desirable for a plaintiff to file separate lawsuits ($, time), but permitted by the rules. Multiple ¶s can file a lawsuit against a defendant.

In large cases, like airplane crashes, there is a multi party mass tort litigation that the court uses to try to manage them altogether for efficiency purposes. For regular cases there are many options on whether to file jointly or together. This is mainly a question of strategy, under the parties’ control.

Standard:

(1) right that arises out of the same transaction, occurrence, or series of transactions or occurrences

(2) common question of law or fact will arise in litigation.

Rule 13 covers counterclaims and characterizes counterclaims into:

Permissive: Rule 13(b) Independent subject matter jurisdiction.
Compulsory: Rule 13 (a) If not brought up in the pleading or else it cannot be brought up again. The jurisdiction of federal courts is irrelevant; you can and must bring it.

Rule 13. Counterclaim and Crossclaim

(a) Compulsory Counterclaim.

(1) In General. A pleading must state as a counterclaim any claim that–at the time of its service–the pleader has against an opposing party if the claim:

                        (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and

                        (B) does not require adding another party over whom the court cannot acquire jurisdiction.

            (2) Exceptions. The pleader need not state the claim if:

                        (A) when the action was commenced, the claim was the subject of another pending action; or

                        (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

(c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

(d) Counterclaim Against the United States. These rules do not expand the right to assert a counterclaim–or to claim a credit–against the United States or a United States officer or agency.

(e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.

(f) Omitted Counterclaim. The court may permit a party to amend a pleading to add a counterclaim if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires.

(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.

(i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party’s claims have been dismissed or otherwise resolved.

For amendment, it needs to arise out conduct, transactions or occurrence set forth in the original complaint.

For counterclaim, it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim”

From Rules18(a) and 13(b) several claims can be brought at once, but this may be chaotic.

Rule 42 (b) resolves this: (expediting, economizing, avoid prejudice)

Rule 42 (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third- party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.

There is no review of the judge’s discretionary order to separate claims. The standard for review is abusive discretion, which almost always gets a NO answer.

Rules allow multiple claims and parties, and trust the judge to lead the cases in a way to ensure the appropriate result.

If a defendant files a counterclaim, the ¶ must file an answer. Rule 7. It must say “counterclaim” for the ¶ to have to file an answer.

Rule 20: Joining plaintiffs

Mosley v. General Motors Corp. (1974): The racist GM hiring and the judge who thought it unmanageable. Rule 20

Issue: Whether the district court abused its discretion in declaring that joining plaintiffs’ cases was unmanageable under Rule 20.

Holding: The district court abused its discretion in declaring that joining plaintiffs’ cases was unmanageable under Rule 20 because their right of relief arose from the same transaction, occurrence, series of transactions or occurrences, and they share a common question of fact.

Rule: For plaintiffs to be joined in a lawsuit, (1) the right of relief arose from the same transaction, occurrence, series of transactions or occurrences, and (2) they share a common question of law or fact.

Strategy: individual case looks more convincing if brought together.

The defendant can make a motion for separate trials (discretionary motion).

The denial or grant of such a motion impacts settlement greatly. (defendant wants to avoid trial against joint, while plaintiffs want to avoid individual cases)

The Rules try to balance party control and efficiency.

This is why Lucy Lockett can sue McConnell, Tropics North, and Everglades in the same lawsuit.

Rule 14: Joining 3^rd Party defendants

Toberman v. Copas (1992) The PA turnpike accident and 3^rd party rs. Rule 14

Issue: Whether under Rule 14 a 3^rd Party Complaint can implead a 3^rd Party defendant alleging that defendant is solely liable to the ¶.

Holding: Under Rule 14 a 3^rd Party Complaint cannot implead a 3^rd Party defendant alleging that defendant is solely liable to the ¶, because Rule 14 allows a claim for secondary liability where the 3^rd Party r is liable to the 3^rd Party ¶, not the original ¶.

Rule: Rule 14 allows for a 3^rd Party complaint where the 3^rd Party r is liable to the 3^rd Party ¶, but it does not allow for the claim that the 3^rd Party r is solely liable to the original ¶.

Rule(s) of Law:

Rule 14. Third-Party Practice

(a) When a Defending Party May Bring in a Third Party.

(1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 10 days after serving its original answer.

(2) Third-Party Defendant’s Claims and Defenses. The person served with the summons and third-party complaint–the “third-party defendant”:

(A) must assert any defense against the third-party plaintiff’s claim under Rule 12;

(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and

(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-partyplaintiff.

(3) Plaintiff’s Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).

(4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.

(5) Third-Party Defendant’s Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.

(6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.

(b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

Rule 14 is the most complex rule: The plaintiff decides who to sue and does not need to sue all of multiple defendants.

Lucy Lockett sues Tropics North,

As a defendant, Tropics North can use the Rule 12 motions, and Rule 14 that allows the r to bring in an additional party not brought in by ¶:

If a r thinks the 3^rd Party is liable, they just need to say it in their answer/defense.

As a defendant, in order to implead, there is the need to say one sentence:

“If I am liable to plaintiff, 3^rd party r is liable to me for some or all of those damages.”

Only thing you are allowed to say, cannot say that the 3^rd Party is liable to the ¶ (See Toberman above). Rule 14 is used only to make the 3^rd Party r liable to the 3^rd Party ¶.

Difference between “I am not responsible, someone else is” v. “If I am responsible, someone else is responsible to me.” Contract w/ insurance company: you are liable, but the insurance company is liable to you.

The impleader claim under Rule 14 is treated like an original suit:

Must comply with pleading requirements of Rules 8-11
Must be served under Rule 4
3^rd party defendant must respond under Rule 12
3^rd party may file counterclaims against 3^rd party plaintiff under Rule 13 and implead other under Rule 14

* Impleading a 3^rd party does not affect jurisdiction over the original claim, but there must be subject matter jurisdiction over the impleader claim

* Impleading a 3^rd party does not affect venue

Supplemental Jurisdiction.

28 U.S.C. §1367(a)(b)(c).

Zurcher v. Honda: out of the Asahi case. Zurcher sues Honda claiming a defect in the motorcycle and claiming damages. Honda claims that any defect is a result of the tube made by Chen Shin:

In an attempt to facilitate efficiency, related claims, counter claims, 3^rd party claims, allowing 3^rd parties anything allowed to original parties, can all be heard by one court.

Chen Shin filed a cross claim Rule 13(g) against Asahi because they were already there. If not there they are impleaded.

No matter how many parties, under original joinder rules and Impleader rules, Rule 14 must be consulted.

As an impleaded party, under Rule 14 (a)(2), the impleaded party operated like an original defendant. If they implead 2 different companies, (Asahi and Cho), nowthere are 2 3^rd party defendants and they can cross claim against each other.

Zurcher v. Chen Shin (3^rd party ¶) Asahi (3^rd party r)

If Chen Shin is liable to Zurcher, Asahi is liable to ChenShin for some or all thedamages.

Asahi can assert defenses that Chen Shin asserts against ¶. Derivative liability allows a party to assert their own defenses as well as Chen Shin’s defenses (i.e. contributory negligence).

Under 14(a)(3)- the plaintiff may assert claims against the 3^rd party defendant by amending their complaint to sue 3^rd party r directly.

If this happens and Asahi still owes parts, which it does not deliver. Can Chen Shininclude a breach of contracts claim in this suit against Asahi?

Chen Shin is suing Asahi for indemnification/ contribution to damages it may have to pay Zurcher. If it wants to sue Asahi for something else, this is a joinder of claims (Rule 18), and a party can add as many claims as they want- if they want to fight, let them do it in one case if they want to. It is not obligatory because there is respect for party control. If it gets too big and unrelated by the time of trial, a court may divide the claims.

The original claim must be there to add on other claims. Once Chen Shin files a crossclaim, and if they have at least one claim against one another, they can file whatever other claims they have. There needs to be a crossclaim that arises out of the transaction that is the subject matter of the original action- once this is satisfied, any other claim can be joined.

Rule 18. Joinder of Claims

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

(b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.

Efficiency does not trump party control, so a party is not forced to bring all claims under the same lawsuit.

Relationship between joinder rules and subject matter jurisdiction of federal courts:

28 USC §136

Never paraphrase a statute:

1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if–

            (1) the claim raises a novel or complex issue of State law,

            (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

            (3) the district court has dismissed all claims over which it has original jurisdiction, or

            (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.   (e) As used in this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

Rules allow joinder for efficiency and are not required because of party control of litigation.

The Constitution sets the outer limits of what the federal courts can hear. If additional claims create a case outside realm or Art. 3 fed district courts don’t have the power to hear it.

For every instance of joinder you must make sure that the court has the power to hear that particular claim against that particular party. All instances must be considered individually under the Constitution and Federal Statutes. Congress has the power to limit the jurisdiction of fed courts and it has done so. Always examine joiner rules and jurisdictional rules to decide whether a fed court can hear a claim.

History:

Mine Workers v. Gibbs, 383 U.S. 715 (1966)

Federal question claim, included claims of standard tort law as well, not governed by fed statute, but common, state tort law. There was not diversity of citizenship, so the tort claim would have to have been brought in state court.

When a plaintiff has a claim under fed and state law arising from same circumstance with different legal theories, can the fed court hear both? Body of court- made law regarding Pendent Jur. and Ancillary Jur: you can have a state law claim alongside a federal claim. Test enunciated in the Gibbs case.

If one case falls under the fed court jurisdiction, a state case can be brought if they arise from “a common nucleus of operative facts.” Then, they can be tried in one single federal procedure.

“Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under (the) Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,’ U.S.Const., Art. III, s 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ ^FN12 The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.^FN13 ”

Pendent jurisdiction is discretionary: the court can decline to hear a claim, it is not a plaintiff’s right. Congress has passed a statute (1367) relating to this doctrine, and now its called supplemental jurisdiction.

Ancillary Jurisdiction: when a defendant asserts a state counterclaim against the plaintiff that arise from the same transactions as the plaintiff’s case against defendant.

Under this doctrine a party can (1) implead a 3^rd party (Rule 14), (2) assert a factually-related cross-claim (Rule 13), but no claims can involve the addition of a new pendent party.

Modern Approach:

Finley v. United States, 490 U.S. 545 (1989)

Finley v. FAA

(Negligent maintenance of lights)

and

SAN DIEGO POWER

(Negligent placement of power lines)

There is a plane crash in San Diego Airport. ¶ had 2 different theories:

Lights on runway too dim and negligently maintained. This was the responsibility of the FAA
The poles themselves were placed negligently by the power company

Tort claims against the US must be heard in a Fed court- exclusive jurisdiction.

There were questions over SDP, because there was not complete diversity of citizenship. The SC said a new party could not be added, just additional claims against existing parties over which the court already has jurisdiction.

Finley then would have to file 2 separate lawsuits because the FAA could only be heard in fed., and SDP only in state court. This was troubling because of inefficiency and burden upon plaintiff to HAVE to file 2 lawsuits. This results in the passing of 28 USC §1367.

This case would have come out differently because:

(a) ….in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.   

Additional parties are allowed under §1367 (a). It is similar to the “a common nucleus of operative facts.” in Gibbs.

Pendent Jurisdiction

Pre- 28 USC §1367

Ancillary Jurisdiction

Supplemental Jurisdiction 28 USC § 1367

Rule §1367(b) is designed to maintain the rule of complete diversity. Only in this territory is plaintiff makes a claim against a 3^rd party defendant, but the court won’t hear it if its is a diversity case and the claim doesn’t meet the requirements of the diversity statute.

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

It is not about the party being brought in, but the specific claim.

Defendants don’t have to be diverse from defendants they implead. A ¶ cannot sue a defendant 3^rd party if there is no diversity. ¶ could not have sued that r in the first place.

1367 (c): Is about DISCRETION, not power.

Power + Discretion

1367 (a) & (b) 1367 (c)

Exxon Mobil Corp. v. Allapattah Services: Under 28 USC §1367 only one of the class action ¶s needs to satisfy the amount in question requirement, and a court may exercise supplemental jurisdiction to hear the claims of other ¶s who independently do not satisfy the amount in question requirement.

Federal question jurisdiction= look at individual claim- if one ¶ satisfies the federal question, then all other state law claims can be added by supplemental jurisdiction.
Diversity of citizenship= look at entire case. If there is no complete diversity of citizenship, case cannot be heard.
Amount in question= individual claim.

The question is not clear because 1367 (b) applies to multiple defendants, not multiple plaintiffs.

(see hypo notes 11-19)

Statutory interpretation principles: Summary of Exxon v. Allapata.

multiple ¶s where only 1 has over $75K in controversy can be filed in federal court if they have complete diversity.

1367 (b) suggests that congress was trying to narrow supplemental jurisdiction in diversity cases joined under Rule 20 if doing so would violate §1332. This suggests that it only applies to r joined under Rule 20, but not to ¶ joining.

4-4 tie in SC- lower court affirmed, but no precedential value.

The Exxon case provides the ability to bring actions of multiple ¶s if only one meets the minimum amount in question requirement.

Defendants tend to want state courts; plaintiffs want federal courts.

SC allows joinder of ¶ if only one meets the amount in controversy requirement.

Amount in controversy: only one ¶ must meet the requirement

Diversity of citizenship: all r and ¶ must have complete diversity (no original jurisdiction)

Federal question: only one claim must meet the fed. question requirement.

Gibbs talks about judicial discretion, codified in §1367 (c). Tool for defendant to ask the court to decline hearing the case.

It is not uncommon for a fed court to hear state law theories along with federal questions.

Theory of recovery against states used in child abuse, domestic violence advocates suing police for failure to protect them even when state courts have issued protection orders. These cases were used effectively to change police department practices.

Dischaney?- ends this- if it is a 3^rd party and not the state, the state is not responsible. BUT many of these cases also had state law theories of recovery that allow recovery against police.

(42 USC § 1993).

After Dschaney, all pending cases lose the federal cause of action and judges have to decide whether to hear those cases or not (§ 1367 (c)(3). As a practical matter, if those cases were close to trial, they were kept, because the judges had the discretion to.

**The Erie doctrine: state law in federal court.**

When a case goes to federal court on diversity, but it is about a state law, what state’s law should the court apply?

before Erie, state applied the Swift doctrine, where the federal courts began to create a federal common law, which just “was.” There were several problems with this concept.

B&W Taxicab & Transfer Co. v. Brown & Y Taxicab & Transfer Co.:(1928)

Agreement between LN Railroad and B&Y Taxicab that BY have exclusivity in KY train station. This would be illegal in KY, so BY reincorporate in TN and execute contract there. BY sues BW in fed court for picking up passengers in the KY station, and win under general federal common law. Under federal common law this agreement between BY and LN is a valid agreement. By reincorporating as a TN corp, they get diversity of citizenship, and bring it to fed court where the court would apply federal law and not state law.

This was making state law immaterial and encouraging forum-shopping. It also impeded uniformity in application of state laws.

The EERIE DOCTRINE: Applied easily and daily in federal courts.

(3 Glannen chapters- may be too detailed)

Recognize that federal courts sometimes hear matters of state law (diversity, supplemental jurisdiction). This is the problem Eerie was to solve.

Federal courts sitting in diversity cases must apply state substantive law

Eerie R.R. Co. v. Tompkins (1938): The guy walking beside the RR case

Issue: Whether Swift v. Tyson should be overruled and federal courts should apply state laws.

Holding: “In all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the laws of the State, unwritten as well as written.”

Rule: When federal courts are applying state law, they must apply the law of the state as it is at that moment, either statutory or common law.

State law comes from the states because the states have the power to make the laws except where the Constitution gives the fed govt. power to make laws.

HOLMES: “Law does not exist without some definite authority behind it, and the only authority is the state.”

“Transcendental nonsense.” The law “is” not, it says what the authorities say it says. The law comes from the people who have the authority to make it. State common law comes from the body that makes common law i.e. state judges.

There is no federal common law. Those applying this law were all mistaken. Federal court judges have no authority to rule on common law because it is under the authority of each state. In cases that are in federal court based on diversity, the court should apply the stat’es laws.

Guaranty Trust Co. v. York (1945), Cohen v. Beneficial Industril Loan Corp., (1949), & Ragan v. Merchants Transfer & Warehouse Co., (1949):

Parties arguing that something is procedural rather than substantive.

Statute of limitations: fed rules about filing and serving summons and complaint. (120 days to serve on opposing party) State statute of limitation that says filing and service must happen within that time. SC says length of cause of action is a creation of state law, this is therefore a matter of state substantive law, and the claim cannot have a longer life in federal court than it would in state court-

York uses an outcome –determinative approach to determine whether a federal or state procedure should apply. York at its broadest would allow almost any procedural rule to be outcome-determinative and there would be no more FRCP.

This stops working and courts begin to talk about the point of Eerie and what it accomplished in changing the result of the BY Taxicab case. Eerie also tries to promote uniformity in the application of State law. A defendant really gets to decide if it is removed to federal court.

In Cohen v. Beneficial Industrial Loan Corp., (1949) The Supreme Court expanded Erie to force federal courts to apply state procedural rules if they would have an impact on the outcome of the case.

Matters of division of judge – jury decisions are federal expeditional matters. It is unknown if this will result in forum-shopping. The federal courts do several things differently, but they do not foster forum-shopping or inequality in the application of the law.

Hanna v. Plumer (1965): Federal Rules of procedure may not “abridge, enlarge, or modify any substantive right.”

Rule: If there is a valid Federal Rule that does not modify a substantive right, then the federal courts apply it.

Hanna looks specifically at the Federal Rules and if there is a valid Federal Rule that does not modify a substantive right, then the federal courts apply it.

Having a uniform federal court system and its administration is within the government’s power to make.

It is outcome determinative to have the case thrown out because of procedural defects, but this is not what the Erie court had in mind.

CHOICE OF LAW:

Choice of law clauses (BK). Courts may apply a law of a state different from where they sit. How does a court determine what law to apply? This is a substantive law, so the fed court has to apply the same choice of law rule that the state court should apply. Note that this does not mean they have to apply the same law, just the same rule in choosing.

Some state courts allow the federal judge to send them a certified question when the federal court is unsure.

How does the federal court figure out the state law when there is no definitive ruling from the state supreme court?

Intermediate appellate court and trial court decisions
Treatises
Law review articles

The question is “what would the state court do TODAY?”

Follow up on Erie:

Try to assess what the state’s highest court would do.
Choice of law issues; a state does not always apply its own law. A state court that might be a proper court to hear the case, may apply law from another state based on its principles. A federal court is not always applying the substantive law in which it sits; the state itself doesn’t even always apply its own laws.
To remember and run through your brain over and over again: a state doesn’t always apply its own laws, and a federal court sitting in a state may not even apply that state’s laws.

Things sometimes turn out differently between state and federal courts.
How do you transfer from one federal court to another? How does that case get transferred to a place where it could have been brought? It’s a discretionary standard.

The Supreme Court had to deal with a case in which there was a forum selection clause that required litigation to take place in a particular state. The plaintiff’s case was brought in federal court in a state where the forum selection clause was not effective. The defense said “don’t use the state’s statute (the statute said forum selection clauses could not be enforced in that state). There’s a forum selection clause.” They tried to have the case transferred to federal court where the clause could be enforced. The case was transferred. The federal statute, just like federal rules, prevailed. The federal statute says such cases can be transferred. BUT cases cannot be transferred between states.

Hearing.

Discovery

Discovery is self- policed, there is no judge in the room.

Types of Discovery

Depositions Rule 30
Interrogatories Rule 33
Production of documents Rule 34
Physical/Mental exam – you ALWAYS need a court order for these. There must be good cause for it.
Admissions
Mandatory disclosure Rule 26 (a)

Overview of discovery/Mandatory disclosure.

Rule 26(a);Rule (26)(e)(1); Rule 26(g); Rule 30(a)(1-2), (b)(1-2, 6), (c), (d)(1-3); Rule 33; Rule 34(a)( c) (skim b); Rule 35(a); Rule 36(a);

Mandatory disclosure Rule 26(a)

Speeds discovery and reduces cost.

Parties must disclose:

Name & address of people with information the party may use to support its claims or defenses
Copies of relevant supporting documents
Descriptions of tangible evidence
Computation and documentation of damages
Copies of insurance contracts

If a party does not intend to present it at trial, it need not disclose unfavorable info.

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information–along with the subjects of that information–that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy–or a description by category and location–of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party– who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i) an action for review on an administrative record;

(ii) a forfeiture action in rem arising from a federal statute;

(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(v) an action to enforce or quash an administrative summons or subpoena;

(vi) an action by the United States to recover benefit payments;

(vii) an action by the United States to collect on a student loan guaranteed by the United States;

(viii) a proceeding ancillary to a proceeding in another court; and

(ix) an action to enforce an arbitration award.

(C) Time for Initial Disclosures–In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D) Time for Initial Disclosures–For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.

(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report–prepared and signed by the witness–if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the data or other information considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications authored in the previous ten years;

(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

(C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

(i) at least 90 days before the date set for trial or for the case to be ready for trial; or

(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party’s disclosure.

(D) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).

(3) Pretrial Disclosures.

(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:

(i) the name and, if not previously provided, the address and telephone number of each witness–separately identifying those the party expects to present and those it may call if the need arises;

(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and

(iii) an identification of each document or other exhibit, including summaries of other evidence–separately identifying those items the party expects to offer and those it may offer if the need arises.

(B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made–except for one under Federal Rule of Evidence 402 or 403–is waived unless excused by the court for good cause.

(4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.

(e) Supplementing Disclosures and Responses.

(1) In General. A party who has made a disclosure under Rule 26(a)–or who has responded to an interrogatory, request for production, or request for admission–must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.>

(g) Signing Disclosures and Discovery Requests, Responses, and Objections.

(1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name–or by the party personally, if unrepresented–and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) with respect to a disclosure, it is complete and correct as of the time it is made; and

(B) with respect to a discovery request, response, or objection, it is:

(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.

(3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

Depositions, Rule 30

Rule 30(a)(1-2), (b)(1-2, 6), (c), (d)(1-3);

Rule 30. Depositions by Oral Examination

(a) When a Deposition May Be Taken.>

(1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45.

(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):

(A) if the parties have not stipulated to the deposition and:

(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants;

(ii) the deponent has already been deposed in the case; or

(iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or

(B) if the deponent is confined in prison.

(b) Notice of the Deposition; Other Formal Requirements.

(1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.

(2) Producing Documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.

(3) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

(1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.

(2) Objections. An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

(3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.

(d) Duration; Sanction; Motion to Terminate or Limit.

(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(2) Sanction. The court may impose an appropriate sanction–including the reasonable expenses and attorney’s fees incurred by any party–on a person who impedes, delays, or frustrates the fair examination of the deponent.

(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending

Subpoena Duces Tecum: to somebody that says they need to bring something (documents, etc.) with them.

Anyone can be deposed, not limited to parties.

The deponent does not have to answer questions when:

(1) claiming a privilege, EX: Privilege between a priest and penitent, the priest does not have to answer.

(2) court-ordered limitation,

(3) motion for Rule 30(d)(3) motion to terminate or limit

The question of whether information sought in discovery is admissible is irrelevant. You can make a deponent answer almost any question.

Usefulness of objecting: if just to form of question, it must be raised at that time. If it is pertaining to relevance of testimony, it does not have to be objected to until later on, even though many lawyers will object during deposition.

(c)(2):

(2) Objections. An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

If someone does not answer because they say it is irrelevant, it is an objection, which will be noted, but the examination still proceeds.

Rule 30 Limits:

10 depositions without a court order, (30)(a)(2)(A)(i)
Not more than once, 30(a)(2)(A)(ii)
Not more than 7 hours. (30)(d)(1)

Rule 30(d)(3) allows a lawyer to stop and move for a limitation on discovery.

To force a deponent to answer, the attorney can file a motion to compel (Rule 37): this means getting the judge involved and is only done when the information sought is pivotal.

If a person refuses to cooperate in discovery: Rule 37

Attorney files a motion to compel. If order is not obeyed, 37(b)(2)(A):

(2) Sanctions in the District Where the Action Is Pending.

(A) For Not Obeying a Discovery Order. If a party or a party’s officer, director, or managing agent–or a witness designated under Rule 30(b)(6) or 31(a)(4)–fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; if not answered, it will be put on record as though the answer to the question was true.

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part; if the withheld information is important enough to the action, the judge can dismiss the entire action.

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Put in jail until they answer.

Interrogatories:

Only parties to the lawsuit can receive interrogatories. Interrogatories are an inexpensive way to get background information on the issues.

Rule 33. Interrogatories to Parties

(a) In General.

(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2).

(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.

(b) Answers and Objections.

(1) Responding Party. The interrogatories must be answered:

(A) by the party to whom they are directed; or

(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.

(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.

(c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.

(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and

(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

Can only be sent to an opposing party. Limit of 25 unless other side agrees or court order.

Different from depositions when party does not want to answer.

From receiving end of an interrogatory:

Must answer within 30 days
Object in writing stating reason for objection
If not answered, other party must confer in good faith, if not successful, file a Rule 37 motion to compel (motion must include attempt to confer)
If don’t want to comply with discovery, file a 26(c) motion for protective order, but must try to confer in good faith before.

Rule 33(d) option to produce business records: if the burden of extracting relevant information from business records, party can hand over entire records and interrogating party can take time to look for what they need. Cost-saving measure.

Rule 34: Production of documents including electronically stored data

This includes inspection of things, such as a car or a urine sample

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

(A) any designated documents or electronically stored information–including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations–stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

(B) any designated tangible things; or

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b) Procedure.

(1) Contents of the Request. The request:

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced.

(2) Responses and Objections.

(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.

(C) Objections. An objection to part of a request must specify the part and permit inspection of the rest.

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form–or if no form was specified in the request–the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

(c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

Rule 35- Physical and mental examinations

Can only be performed on parties to the suit, not witness, and

Their physical/mental condition must be in controversy, and

Must be obtained by court order only where “good cause is shown,” and

The examination must be done by a licensed examiner.

Rule 35. Physical and Mental Examinations

(a) Order for an Examination.

(1) In General. The court where the action is pending may order a party whose mental or physical condition–including blood group–is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

(2) Motion and Notice; Contents of the Order. The order:

(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and

(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

(b) Examiner’s Report.

(1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.

(2) Contents. The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.

(3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request–and is entitled to receive–from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.

(4) Waiver of Privilege. By requesting and obtaining the examiner’s report, or by deposing the examiner, the party examined waives any privilege it may have–in that action or any other action involving the same controversy–concerning testimony about all examinations of the same condition.

(5) Failure to Deliver a Report. The court on motion may order–on just terms–that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner’s testimony at trial.

(6) Scope. This subdivision (b) applies also to an examination made by the parties’ agreement, unless the agreement states otherwise. This subdivision does not preclude obtaining an examiner’s report or deposing an examiner under other rules.

Rule 36: Requests for admissions

Streamlining trial by eliminating uncontested issues.

If other side has to put forth effort to prove at trial, party must pay costs of proving it.

A party may answer a request for admissions by

Admitting
Denying
Objecting

Rule 36. Requests for Admission

(a) Scope and Procedure.

(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:

(A) facts, the application of law to fact, or opinions about either; and

(B) the genuineness of any described documents.

(2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.

(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.

(4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.

(5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.

(6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.

Scope of Discovery and Limitations. Protective Orders and Sanctions.

Rule 26 (b)(1 and 2); Rules 26(c) and 37

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense–including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

(2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.

(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending–or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. 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.

(2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

Rule 26 (b): scope and limits of discovery

26(b)(1): relevant to any party’s claim or defense and not privileged (prior: relevant to subject matter of action- now requires court order)

26(c): protective orders that limit discovery even if it is clearly relevant

26(b)(2)(c) Limitations of discovery under certain circumstances (repetitive, burden, expense, party already had enough time, etc.) (iii) Burden or expense outweighs the benefit- 5 factors

Change in scope of discovery: Originally- no limits

Last 15 years- desire to curtail open-endedness of scope of discovery. (10 depositions, etc.) Changing standard for scope.

3 layers of discovery

Mandatory disclosure Rule 26(a)
Relevant to claim or defense & not privileged 26(b)(1)
Subject mater involved in action only through court order 26(b)(1)

2-3 are not clear; expectation is that judge will get more involved on what is relevant. There is not an obvious difference.

The judge has discretion in all rulings, and there is a certain amount of uncertainty.

When using full range of discovery, even though depositions are the best mechanism and allows for follow-up unscripted questions, not everything is suitable for discovery through deposition.

When party does not want to answer interrogatories- they must write down their objection in the answer. Objection must be specific. Objection does not have to be extensively detailed, but must state reasons. Arguments for objection:

Relevance
Undue hardship and expense
Outweighs benefit

This would be followed by

(1) Good faith effort to confer

(2) Rule 37 motion to compel: must include certification that movant has conferred or attempted to

and/ or

(3) Motion for a protective order Rule 26(c)

Rule 26 (b)(2)(c)(iii): burden outweighs the benefits

Subjective (electronic v. hard copies)- requires a demonstration

Factors:

Amount in controversy: cannot spend more on discovery than amount in question
Needs of case
Party resources
Importance of issues at stake: individual case (individual getting damages) may be raising less important issues than in a case affecting public policy (cigarette cases)
Importance of the discovery in resolving the issues

See list in 26 (c) about what can be limited in discovery through a protective order to narrow the scope of what the other side can get: (requires good faith effort to confer, leaves open for losing party having to pay expenses under Rule 37)

Curtail inquiry into some matters, but not others. (When someone has gotten an order from a judge (d) to answer questions on some matters or not to answer on others
Gag orders
Interrogatories on same day
Limiting time
Limiting place

Rule 37 (a)(5)(A): If motion is granted the court must order the losing party to pay expenses if there was a failure to confer or non-disclosure was substantially justified. Due process in Rule 37: paying attorney’s fees would be a depravation of property without due process.

After motions, there will be an order from the judge, the judge may decide to order to compel discovery- The party may either comply or not, Rule 37 (b): Court may issue just orders such as taking the facts as proven, limiting claims or defenses, striking pleadings, default judgment, dismissing claim.

Privilege/Trial Preparation Materials.

Rule 26(b)(3)and (5).

(3)             Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its             representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

                        (i) they are otherwise discoverable under Rule 26(b)(1); and

                        (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s             attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

                        (i) a written statement that the person has signed or otherwise adopted or approved; or

                        (ii) a contemporaneous stenographic, mechanical, electrical, or other recording–or a transcription of it–that recites substantially verbatim the person’s oral statement.

(5)             Claiming Privilege or Protecting Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party             must:

                        (i) expressly make the claim; and

                        (ii) describe the nature of the documents, communications, 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.

(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that             received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court             under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

26(b) deals with “privileged” matters and information. Privileged information does not need to be turned over.

Privilege generally: mostly common law (some may be created by statute) that states that under certain circumstances there are values greater than the truth. In these circumstances, court will allow someone to keep important information:

Doctor-patient
Attorney-client
Priest – confessor
Limited value of self-incrimination because it is about criminal prosecution, not civil litigation.
Attorney work product

Attorney work product privilege: framed by Hickman v. Taylor (1947) and decided before 26(b) went into the Rules. This was a development of an area of law that did not exist and followed by the Rule. This case helps understand why we have the Rule.

3 categories of work product:

Documents prepared in anticipation to litigation that that can be obtained by other means- NOT discoverable (Hickman)
Documents prepared in anticipation to litigation that CANNOT be obtained by other means- MAY BE discoverable
Legal theories or litigation strategy- NOT discoverable

Hickman v. Taylor (1947)

Issue: Whether an attorney is required to hand over their private files and mental impressions to opposing counsel during discovery under Rule 26.

Holding: An attorney is NOT required to hand over their private files and mental impressions to opposing counsel during discovery under Rule 26.

Rule: The work product of an attorney is not discoverable under Rule 26 because lawyers have a right to keep their ideas and files private.

Rule(s) of Law: Rule 26 (b); limitations on discovery for irrelevance or encroachment upon recognized privilege domains.

Privilege does not extend to information secured by an attorney while acting for client in anticipation of litigation.

Attorney-client privilege did not protect these documents because the documents in questions were communications between an attorney and witnesses, not clients. Attorney –client privilege only protects communication between attorney and the client, not anybody else.

The documents weren’t turned over because they would reveal the attorney’s theories in that the attorney’s transcripts will be filled with inferences and inferential reasoning that would basically make the case for the other side.

Privilege= something is more important that the truth

Attorney’s thoughts

If attorney had to turn over all thoughts and files, there might be the danger that the attorney may have to testify, also, if an attorney knows he has to turn over notes, they might not write anything down.

Court creates notion of work product privilege, but it is not unlimited. The other side had the time and opportunity to interview the witnesses themselves, they did not need Fortenbaugh. If the witnesses were no longer available, dead, etc, then they might have to turn over the documents.

IfDocument or thing

Prepared in anticipation of litigation or trial

By party or representative

Then not discoverable

Unless1. Substantial need

2. Can’t obtain substantial

equivalent w/o undue

hardship

“Undue hardship” involves judicial discretion, in this rule it pertains to a witness no longer available, etc. It is not an absolute privilege and needs to be weighed with the needs of the other party. The rule expands to protect the ability of lawyers to do their jobs and beyond. This rule covers trial preparation products, the party and its representatives. 26(b)(3)(ii).

Factual questions must be answered and cannot be claimed to be privileged information.

26(b)(5): to object to discovery, it must be written in the answer, and detailed explanation on grounds of privilege. Other party can file a Rule 37 motion to compel.

Electronic information: Destruction of electronic data = destruction of evidence.

Appealability of Discovery Orders.
Draft Lockett interrogatories.
Deposition of Sandy Carter.
Discovery review through the prism of Jones v. Clinton.

DISCOVERY: Rules in context: Jones v. Clinton

Paula Jones sued Clinton for a violation of 42 USC § 1983, not under fed equal employment laws because she missed the statute of limitations for that – it is essentially the same thing.

Civil litigation should not go on against a sitting president because it must interfere with his running of he country- the Supreme Court disagrees 9-0.

As a result of the discovery tools in action, Clinton gets into a situation where he lies, which becomes part of the federal investigation on obstruction of justice and other matters.

Jones alleges that at a convention a state trooper said then-governor Clinton wanted to see her, he sexually propositioned her and dropped his pants. She claims she said no, and says he asked her to keep it quiet. Years later an article without her name suggests that there was a sexual affair. Jones is backed and funded by right-wing legal organizations with an agenda against the President.

Sexual harassment does not appear in Equal Employment Acts- this is a lawyer’s creation, getting the SC to interpret sex discrimination to include sexual harassment. Sexual harassment is not a cause of action if it does not affect employment.

No required disclosures in this case. If they had been, she would not ask under 26(a) because it is not used to ask for info.

Alternative Dispute Resolution / Contracting out of the Civil Litigation System:

28 USC §651(a)and (b), §652(a) and (b);

Devices:

Private Judges: Retired judge (private judges) for dispute resolution. The decisions are binding. Some judges function as arbitrators and it is not appealable.
Negotiation
Mediation: a mediator can find common ground that the parties cannot find for themselves.
Arbitration
Medarb: starts with mediation and then goes to arbitration. This is binding and can be decided by the same person.
Mini Trials: present case to neutral 3^rd No jury.
Early neutral evaluation: so parties know their chances.

28 U.S.C. § 651- 652

Mandate early neutral evaluation and arbitration.

ADR terms in Contracts and enforcement:

Gilmer v. Interstate/Johnson Lane Corp. (1991)

¶ alleges he was fired because of his age. Signed a K to arbitrate, but does not want to. Claims arbitration clause is not consistent with statutory framework. He could prove this by going through the statute language and legislative history. He cannot do this, so he has to show that there is a conflict between the arbitration and the statute’s purpose.

If he complains to EEOC, they can go after the employers.

What is specifically wrong with arbitration?

Panel will be bias: rules prevent bias panels, preemptory challenges and challenges for cause
Discovery will not be adequate: Gilmer does not get any interrogatories, but can request docs. and depositions- but clearly less extensive than trial discovery. Court: trade-off, rules more lax in arbitration, arbitration is faster.
Decision will not be public: There is a written requirement of the ultimate decision and parties. Court: the same thing happens when parties settle.
No class actions and concern about equitable relief. Court: EEOC can take on mass litigation, and there is equitable relief.
Not appealable- final decision (except bias, fraud, misconduct) cannot appeal for error in the law
Not same evidentiary rules
Limited discovery (see #2)
No jury

Employer’s arguments to compel arbitration	Gilmer’s arguments against arbitration
– Signed the contract	– Contract of adhesion (not necessarily invalid)- Unequal bargaining power

Fed Arbitration Act: to get rid of English common law hostility towards arbitration.

POLICY:

Freedom of K
Certainty and reliability (Arbitrators don’t have to follow the law and arbitration is not appeallable.)
Freedom from K (unequal bargaining power)
? Privatizing law

Bottom line on arbitration: the parties agreed to it.

Strandell v. Jackson County, Illinois (1987): The son who was arrested and later committed suicide.

Issue: Whether a federal district court can require litigants to participate in a nonbinding summary jury trial.

Holding: A federal district court cannot require litigants to participate in a nonbinding summary jury trial because this does not fall within the parameters of Rule 16.

Rule(s) of Law:

Rule 16

28 USC §652

New Information, questions, etc: Nonbinding summary jury trial: attorneys summarize their case before a jury that renders a nonbinding verdict.

Many courts do not follow this, and compelled summary trials are allowed in many jurisdictions.

Compelled ADR: compelling one or both parties to participate in a nonbinding summary jury trial.

Arguments against compulsory summary trials:

Higher cost
“privatization of justice”

Arguments for compulsory summary trials:

Encourages settlement (makes parties happier than getting a judge to decide)
Judicial economy
Clarification of what is at issue (streamlined trial or at least greater justice)

To get rid of frivolous cases:

Rule 11

Rule 12(b)(6)

Early Neutral Evaluation: a neutral 3^rd party evaluates the case.

Fee-shifting discussion. If the penalty for not agreeing with the ADR and still losing at the trial, party has to pay other side’s attorneys fees. This is not the practice yet, but it is being discussed.

The judge has a great amount of power to manage the pre-trial process. The district judge has the power to order a summary trial (in circuits that allow it), or mediation, early neutral evaluation, etc.

negotiation

Pre-trial Disposition

Summary judgment.

Rule 56

Last thing that stands between plaintiff and trial. Can be issued against defendant, but it is most commonly used against the plaintiff to keep the case from going to trial.

Pleadings

Discovery

Disclosures

Affidavits

Inferences

Inferences: Critical part of trying cases because direct evidence is often lacking.

Circumstantial evidence is the opposite of direct evidence. Circumstantial evidence is “good” evidence and can be powerful (skid marks, etc.) Circumstantial evidence involves the admission of inferences.

Whether the evidence will go to the jury and they will be allowed to draw inferences from it.

Rule 56: moving party must show:

j No genuine issue as to any material fact

k Entitled to judgment as a matter of law

Summary judgment can be partial or for the entire case

Example:

Easy when everyone agrees with all facts.

r sets ¶‘s house on fire, killing his dog. If there are sufficient allegations for a cause of action, but in discovery it comes to light that part of what ¶ is claiming is emotional damages for death of pets. The r motions for summary judgment because the law does not compensate emotional damages for death of a pet. This is a purely legal question where no facts are in dispute. This case would be settled on summary judgment and not 12(b)(6) “failure to state a claim on which relief can be granted.”

They do not use a 12(b)(6) because it looks only at the complaint. Outside of the complaint, use a summary judgment motion for things that come out that are not in the pleadings.

When there is a genuine issue of material fact:

Adickes v. S.H. Kress & Co. (1970): The white schoolteacher who was refused service at the cafeteria.

Issue: Whether a non-moving party in a summary judgment motion has the burden of proving that there is evidence in support of claim.

Holding: A non-moving party in a summary judgment motion does not have the burden of proving that there is evidence in support of claim because the moving party must first establish the absence of a genuine issue.

Rule: “Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is present.”

1964 Mississippi.

Turns into a federal court lawsuit because ¶ sues on 42 USC § 1983- a state official has violated ¶‘s civil or constitutional rights.

In order to be successful under a §1983 claim, ¶ must prove a conspiracy between policeman and restaurant because a state actor is needed. ¶ wants to file her case in federal courts because the state courts are less friendly toward civil rights cases.

It is unlikely that there will be direct proof of a conspiracy, the only hope for ¶ is proving facts from which the inference of a conspiracy can be drawn.

When moving for summary judgment r relies on the fact that the policeman was never in the store. Police chief and arresting officer affidavits state that r had not requested ¶‘s arrest.

¶ says she had no knowledge of any communication.

In order to prevail, r must prove that there was no police in the store before the arrest.

By testifying that the store was not explosive, ¶ wants the jury to infer that the r’s statement that he wanted to avoid a riot is not true.

According to the Supreme Court, the r needed to include in their affidavit was a denial from the officers that they were not in the store. If they don’t say that, the jury will be able to draw the inference from their presence in the store that there was a conspiracy.

r has to bring forth evidence to disprove the presence of police in the store before ¶ has to come up with any evidence.

For a defendant to get anywhere on SJ, they must prove the absence of facts that would support the ¶‘s case. If they cannot come up with this proving of a negative, the ¶ does not even have to respond.

If r does not submit enough evidence to even require ¶ to respond, SJ is denied.

Celotex Corp. v. Catrett (1986): The husband that died from asbestos case.

Issue: Whether under Rule 56 the moving party must support its motion for summary judgment with affidavits or other materials.

Holding: Under Rule 56 the moving party does not have support its motion for summary judgment with affidavits or other materials, however it must affirmatively show that there is no evidence.

Rule: “The party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.”

Reasoning: The court finally rules that summary judgment was not proper because (1) Hoff’s letter (2) Hoff listed as a witness, (3) Celotex documents (4) Link between the companies.

Celotex trilogy were all decided at the same time and concerned SJ, easing up on what Adickes means, but do not overrule it: If fact finder finds both parties equally credible, the party with the burden of proof loses. The ¶ must support its facts with a preponderance of evidence.

Asbestos litigation is a subset of civil litigation:

Fact: was ¶ exposed to r’s asbestos?

Defendant moves for summary judgment claiming that there is no evidence to show that ¶ has come into contact with r’s products.

Under Adickes, r must show evidence that ¶ has never come into contact with Celotex products.

The Supreme Court says that this is not correct.

The ¶ has the burden of proving that ¶ came into contact with asbestos from Celotex, must use

Pleadings

Discovery

Disclosures

Affidavits

Inferences

Under this case, the r must prove that the ¶ has no proof of ¶ coming in contact with Celotex asbestos by reviewing the discovery and showing that there is no proof.

Brennan (dissenting) suggests that defendant has to make some affirmative showing. They have to show the absence somehow, they cannot just state it. The r has to do some discovery of its own unless it can be accomplished through affidavits.

r must prove that ¶ cannot prove a connection between decedent and Celotex. If ¶ does not present sufficient evidence, motion will be granted.

The court finally rules that summary judgment was not proper because the jury will be allowed to infer that asbestos from Celotex came in contact with ¶. (1) Hoff’s letter (2) Hoff listed as a witness, (3) Celotex documents (4) Link between the companies.

On SJ: r did not have to prove that ¶ did not come into contact with Celotex asbestos; they had to prove an absence of evidence to support ¶‘s case that he did come into contact with Celotex asbestos. Once the r files SJ, the ¶ must respond (usually) within 10 days or get a continuance under Rule 56(f).

EXAMPLE:

Husband Harry has life insurance company that pays from death due to accidental causes.

He goes on vacation and is never heard from again

Wife files 8 years later asking him to be declared legally dead, gets court order.

Files claim with insurance company, don’t pay, she sues for breach of contract. Insurance co. files for summary judgment.

Who has the burden of proving that the death was caused by an accident? ¶.

Just for having her husband declared legally dead puts the burden of proof of somebody opposing that that he is not dead. For death by accidental causes (what must be proven) the ¶ also has the burden of proof.

There is no evidence about what caused the death. ¶ cannot put forth anything to show what happened to her husband. r will state that ¶ has nothing to prove what she needs to prove.

How could we get a judge to allow a jury to infer accidental death?

In a disappearance, this is unlikely to be found.

Anderson v. Liberty Lobby

Issue on summary judgment- can a judge make the call between preponderance of and clear and convincing evidence?

The judge must decide if whether a jury would be able to find malice by clear and convincing evidence. p.585.

There must be evidence on which the jury could reasonably find for the plaintiff.

**Summary Judgment in Jones v. Clinton.**

Rule 56: moving party must show:

j No genuine issue as to any material fact

k Entitled to judgment as a matter of law

1- the dispute about whether the incident happened becomes immaterial because even if it did, there is “no genuine issue as to any material fact” that would render judgment for ¶.

This does not mean that the parties agree on all facts. With respect to the material facts, the judge must find there is no issue.

Every summary judgment motion has to include a statement of material facts for which there is no genuine issue.

There are 2 different versions, the moving party shows that there is no dispute on material facts, the non-moving party lists material facts that are in dispute.

for every fact the sentence ends to a reference to where in the record the fact can be found (pleadings, discovery and affidavits).

Facts cited by Clinton in Jones’ deposition were questions asked by Clinton’s lawyers. The information is there because the lawyers asked it and got the answers they wanted. There are several references to other affidavits and records (payroll data forms, etc.). Jones also includes references to Clinton’s deposition, etc.

Dismissal with prejudice: claim cannot be filed again.

Quid Pro Quo:

Jones needs to prove for quid pro quo:

Tangible job detriment in compensation, terms, conditions, or privileges of employment.
Things that are not considered tangible job detriment (as a matter of law): mere threats not followed by actual detriment, shifting job titles and duties if it does not affect grade or salary, not giving her flowers on secretary’s day

An appeals court could reverse the judge, because it is based on the body of law on sexual harassment at the time. The judge could be reversed on this basis because there is a question as to what the law is in adverse employment actions.

Jones claims:

They isolated her, gave her less to do, lesser responsibility, moved to a job with no opportunity to advance, denied access to grievance procedures, was not given flowers on secretary’s day, etc.

The judge points to in the record to conclude that there was no tangible job detriment:

Jones was never downgraded, she was classified upwards from level 9-11, she was given all her merit increases and cost of living increases, all her evaluations were good, no evidence of application for other jobs that she was not given. The judge calls this non-general and non-specific, so the judge grants summary judgment on quid pro quo claim.

Hostile work environment:

Legal standard: harassment must be sufficiently severe or pervasive “to alter the conditions of employment and create an abusive working environment”

Factors: frequency, severity, physically threatening, humiliating, unreasonable interference with work performance.

Jones’ only incident of harassment was the one in the hotel room and a couple of comments made a few times when they ran into each other.

Court pulls out of record:

Went to work every day
Left job for family reasons
Did not give up her responsibilities of delivering documents
Never saw a therapist for counseling
“beauty and the beast” comment was in a light vein

All show allegations of hostile work environment were without merit because they were not sufficient to alter her work performance.

It is possible for one incident to be actionable (the ‘dumb bitch’ case), but this is just boorish and offensive and is not among these case. One incident can be enough to prevail unless it is exceptional and this one is not.

The judge rules that there is no evidence from which a jury could find a hostile work environment.

There is a state claim, but there is supplemental jurisdiction because the cause of action arises from the same nucleus.

Tort of emotional distress or outrage:

Jones: Clinton’s actions were outrageous and extreme, intolerable in a civilized community. Her distress was severe based on the depositions of other she told, consulted a therapist shortly before this hearing.

The judge thinks that there is nothing for the jury to decide:

Incident: cannot be characterized as extreme, intolerable
Emotional distress: going back to tangible job detriment.

Facts v. inferences.

There is no jury nullification in the civil system.

Summary judgment requires inferences and who is going to get to draw certain inferences.

Trial and Beyond

TRIAL PROCESS:

Right to jury trial
Jury selection
Problems

Jury issues deal with Constitutional Law, 7^th Amendment specifically.

Constitutional Right to Trial by Jury.

The SC has not said that the 7^th Amendment is applicable to the states. The states are subject to other Amendments. In state court, a person does not have a federal constitutional right to jury trial. States may have provisions for jury trails in their constitutions.

Traditionally: 12-people juries, and they had to be unanimous.

Supreme court says it does not have to be like this to be constitutional, and there can be fewer than 12 jurors and it does not have to be unanimous.

What does the 7^th Amendment mean today?

Today legal life is virtually controlled by statutes, while at the time of writing the Constitution was common law.

“In suits of common law the right to a jury trial should be preserved.” In civil suits.

When questioning whether a party has a right to jury trial:

Determine between:

Equity (chancery)	Law courts.
Equitable damages(specific performance, TROs, preliminary injunction, injunctions)

No 7^th Amendment constitutional rights to juryMoney damages, cannot make a person performRight to trial by jury

Legal remedy = Jury

Equitable remedy = No jury

Money at stake does not automatically make an issue of law, restitution, for example, is an equitable remedy and there is no right to a trial by jury. The right may be given, but not constitutionally mandated.

Curtis v. Loether (1974): The landlords who did not want to rent to the black woman.

Statutes and the 7^th Amendment

Issue: Whether the Civil Rights Act or the Seventh Amendment requires a jury trial on demand by one of the parties in an action for damages and injunctive relief §812.

Holding: The Civil Rights Act or the Seventh Amendment allows a jury trial on demand by one of the parties in an action for damages and injunctive relief under §812 because it deals with legal rather than equitable rights.

Rule: “When Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trail right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.”

2-part test:

Compare to causes of action under English law
Type of remedies sought

Rule(s) of Law:

7^th Amendment: right to jury trial

Section 812

Reasoning: Analogy with innkeepers, intentional torts,

The damages sought are compensation for an injury- sounds like a tort, which were heard in the law courts.

Case turns on the type of remedy sought- actual and punitive damages, available in a court of law. If the only thing she had asked for was injunctive relief, she would not have a right to trial by jury because this type of relief could only be granted by an equity court.

The SC could have said that since statutes did not exist in common law there is no right to jury trial for violation of statutes.

¶: Violation of Title 8 of the Civil Rights Act which forbids discrimination on basis of race. It has an express private right of action.

r wants a jury trial, and ¶ does not because she is afraid that the jury will have the same racial bias than the landlord’s.

Right to jury trial is not a ¶ right; it is a party right.

Even though the following cases got through the 2-part test, the decision of the court seems to turn on the kind of remedy sought. Common law causes of actions now coexist with statutes and a court that interprets those statutes, administrative agencies that implement the statutes, etc.

Goldberg v. Kelly, Mathews v. Eldridge: Legislatures pass statutes to give individuals $ under certain circumstance and if they meet certain criteria- statue, administered by SSA.

If everyone cut off from social security or disability had a right to a jury trial, it would be impossible to do- if every administrative determination is subject to jury trail

The New Deal, rise of Administrative State: NLRB v. Jones & Laughlin Steel (1937): SC decides on administrative state and denies a jury trial to issues dealing with administrative adjudication.

7^th Amendment applies to a civil trial about statute and its adjudication.

If there is a violation of a statute, the court will try to analogize to common law, but in the end will look at the remedy to decide whether there is a jury.

Chaufer’s Local No. 391 v. Terry: asking for compensatory damages, and only law courts granted compensatory damages

The 7^th Amendment right to a jury trial is an easily waived right, waived when not requested

Jury selection

Thiel v. Southern Pacific Co. (1946)

Issue: Whether an impartial jury was drawn from a cross-section of the community if the court systematically excludes day workers.

Holding: An impartial jury cannot be drawn from a cross-section of the community if the court systematically excludes day workers.

Rule: The fact that a person earns a minimal wage per day is not a sufficient to completely excuse this class from jury duty, and the question of actual hardship must be addressed on an individual basis before allowing an excuse.

Voire dire: process of jury selection. “To see, to say.” Process of asking questions to potential jury- sometimes lawyers, sometimes judge asks questions, subject to discretion. Questions are aimed to see if a juror can be fair.

Challenge for cause: Unlimited number. The judge can let people go for cause without the lawyers saying anything. People are struck for cause if they have any connection to the case, are self-employed, or it is determined they can’t be fair for a number of other reasons. The judge has ample discretion in excusing potential jurors for cause.

Preemptory challenge: Challenges to individual jurors just because they have a hunch. There are jury consultants that pick juries. Hallmark of jury system: there is an ability to get rid of jurors, making any assumption, for no reason, bad reasons, etc. Recently, (late 20^th century),

“Batson” procedure: where a criminal defendant challenges prosecutor’s preemptory challenges based on race. Court determined preemptory based on race are unconstitutional.

Civil cases: Edmonson v. Leesville Concrete Co. (1991)

Why the choice of a private lawyer based on race during jury selection is unconstitutional because it is sufficient state action to be considered unconstitutional

Johnson v. Leesville Concrete Co. (1991)

Issue: Whether a private litigant in a civil case may use preemptory challenges to exclude jurors on account of their race.

Holding: A private litigant in a civil case may NOT use preemptory challenges to exclude jurors on account of their race.

Rule: Excusing a jury solely on the basis of race is unconstitutional in civil cases.

JEB v. Alabama ex rel. T.B. (1994)

Suggests that race and sex may be the limit because of the historic exclusion of both groups in juries. There is reluctance to extend it to religion, sexual orientation, age.

Race and Gender Bias

Powell v. Allstate (1995): Jury bias

Issue: Whether to grant a new trial and inquiry is allowed if there is a question of racist remarks during jury deliberations.

Holding: A new trial should be granted when racist statements are explicitly made in the jury room.

Rule: Overt bias during jury deliberation is grounds for a new trial.

Catchpole v. Brannon (1995): Judge bias

Issue: Whether a new trial should be granted on the grounds of the judge’s bias against the ¶ and her case.

Holding: A new trial should be granted on basis of judge’s bias, regardless of whether the issue was brought up in trial.

Judgment as a matter of law.

Rule 50

Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling

(a) Judgment as a Matter of Law.

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a             reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that             issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense                         that, under the controlling law, can be maintained or defeated only with a favorable finding                         on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is                         submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle             the movant to the judgment.

(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 10 days after the entry of judgment–or if the motion addresses a jury issue not decided by a verdict, no later than 10 days after the jury was discharged–the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a matter of law.

(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.

(1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.

(2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment’s finality; if the judgment is reversed, the new trial must proceed unless the appellate             court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.

(d) Time for a Losing Party’s New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 10 days after the entry of the judgment.

(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.

Few civil cases get to trial, but some do.

When all evidence has been presented, there can be a Rule 50 motion for judgment as a matter of law (& renewed judgment as a matter of law). Directed verdict & JNOV were older terms that were eliminated by new Rules, but the concepts have been kept.

Wording is different from 12(b)(6) or summary judgment, but it is a similar concept: no legal basis for party opposing the motion to win. Difference from summary judgment: SJ takes place on the paperwork, what is introduced in the pleading and discovery phase BEFORE trial. A Rule 50 motion is made after the witnesses have testified in court.

The moving party must move for a Rule 50 judgment before the jury goes out because there is a Constitutional right to have case heard by jury and letting the jury decide without moving that as a matter of law you should win, the other side has a constitutional right to that verdict. There is also a practical reason: when a Rule 50 motion is granted before the jury verdict and there is appeal that overrules granting of motion, there is no verdict and there is a need for a new trial. If it is granted after a jury verdict, and later overruled, there is already a verdict in place and no need for new trial. When a jury rules against one person, there is no legal issue on appeal as to whether the judge should have let the jury decide. This makes the question of a matter of law disappear. The chances for a successful appeal are very slim once a jury has ruled against a party.

Reid v. San Pedro, LA & Salt Lake RR: the cow, the gate, the train and the broken fence case.

If the cow came through the open gate the RR is not liable; if it came through the damaged fence, the RR is liable.

r moves for judgment as a matter of law (Rule 50). The ¶ must prove through preponderance of evidence that it went through fence and not gate.

Post-Trial Motions and Appeal

Rule 59(a) and (b); Rule 60(b); Rule 60(c)(1); Rule 61. 28 U.S.C. §1291, 1292(a) and (b).

Rule 59. New Trial; Altering or Amending a Judgment

(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues– and to any party–as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.

(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 10 days after the entry of judgment.

Rule 60. Relief from a Judgment or Order

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative 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 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(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.

Rule 61. Harmless Error

Unless justice requires otherwise, no error in admitting or excluding evidence–or any other error by the court or a party–is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.

28 USC § 1291. Final decisions of district courts

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.

28 USC § 1292. Interlocutory decisions

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;

(2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;

(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Options:

Request a new trial (Rule 59) [don’t need to understand in depth] you can do this for any reason that people have been allowed to do this. Example: Powell case in supplement about the racist jury. There are only 10 days after the entry of judgment to do this under many circumstances. Sometimes the losing party as routine does this. This is different from Rule 50 where the moving party gets a judgment, in this case they get a new trial. A new trial can be granted for several reasons: witnesses who disappear and later located after judgment, tainted jury, fraud, misrepresentation, mistake, newly discovered evidence, etc.

Rule 60: This is asking for release of the judgment, which will be set aside. (c)(1) sets the limit. Balance between perfect justice and finality in an imperfect system. Every-day mistakes will be ignored, because the notion that every judgment could be reopened for litigation at any time for any reason is not desirable for many reasons.

Rule 61

Rule 62: Stay of proceedings to Enforce a Judgment.

APPEALS:

After final judgment and post-trial motions, there is the option to appeal. Appeals are very limited and difficult to win. The main purpose of the appeal is to ask a higher court to make a ruling on the law different from what the trial judge ruled. The law usually does not determine the outcome of cases, this is usually determined by fact.

If complaint is about facts, the standard of review on appeal is “clearly erroneous.”

Abuse of discretion is the standard of review on appeal on anything the judge has the power to rule on during the course of a trial

If the judge made a legal ruling, there is also the possibility to appeal, but the doctrine of harmless error protects judges and their rulings to some extent if the error did not influence the outcome of the trial.

In appeals, any alleged mistake is held to the harmless error rule.

Catchpole

The defendant argued that there should not be appeal because it was not brought up in trial. The appeals court decides to hear the appeal because of the nature of the problem (judge bias) was rare. In most situations, however, the trial attorney has to bring it up at trial- you waive every issue that is not brought up at trial.

Only final judgments can be appealed. Other rulings cannot be appealed. This makes the discretion of the trial judge very big, because none of the rulings can be immediately appealed.

Exceptions:

Injunctions: when a judge denies or grants an injunction, this is appealable.

Interlocutory appeals:

1292(b) Mosley case P.882: the GM workers who were discriminated against and wanted to join claim against GM. GM argues that it is not a proper use of Rule 20, court agrees that claims are separate and must be filed separately.

This is an interlocutory motion and not appealable. If ¶ had to go through entire separate trials and wait for judgment to appeal, it would take much time. § 1292(b) provides the only chance to appeal an interlocutory judgment. This asks that the order involves a controlling question of law that is debated, and an appeal may advance the ultimate termination of litigation (it is better to appeal now than to wait to appeal and prolong litigation) This is unusual, but it happened in the Mosley case: The 8^th circuit agreed to hear it and resolved it. This is not about discretionary issues, which cannot be appealed until the final judgment. These were questions of law.

lasesana

Civil Procedure Outline (long)

Procedural due process

Notice.

Personal Jurisdiction

Subject Matter Jurisdiction

Federal question jurisdiction

Tribal jurisdiction

VENUE

REMOVAL

Constructing a Civil Lawsuit

Ethics

Joinder of Claims and Parties.

**The Erie doctrine: state law in federal court.**

Hearing.

Discovery

Depositions, Rule 30

Interrogatories:

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

Rule 35- Physical and mental examinations

Rule 36: Requests for admissions

Scope of Discovery and Limitations. Protective Orders and Sanctions.

Privilege/Trial Preparation Materials.

Alternative Dispute Resolution / Contracting out of the Civil Litigation System:

negotiation

**Summary Judgment in Jones v. Clinton.**

Trial and Beyond

Constitutional Right to Trial by Jury.

Jury selection

Race and Gender Bias

Judgment as a matter of law.

Post-Trial Motions and Appeal

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lasesana

Civil Procedure Outline (long)

Procedural due process

Notice.

Personal Jurisdiction

Subject Matter Jurisdiction

Federal question jurisdiction

Tribal jurisdiction

VENUE

REMOVAL

Constructing a Civil Lawsuit

Ethics

Joinder of Claims and Parties.

The Erie doctrine: state law in federal court.

Hearing.

Discovery

Depositions, Rule 30

Interrogatories:

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

Rule 35- Physical and mental examinations

Rule 36: Requests for admissions

Scope of Discovery and Limitations. Protective Orders and Sanctions.

Privilege/Trial Preparation Materials.

Alternative Dispute Resolution / Contracting out of the Civil Litigation System:

negotiation

Summary Judgment in Jones v. Clinton.

Trial and Beyond

Constitutional Right to Trial by Jury.

Jury selection

Race and Gender Bias

Judgment as a matter of law.

Post-Trial Motions and Appeal

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**The Erie doctrine: state law in federal court.**

**Summary Judgment in Jones v. Clinton.**