Civil Procedure Outline

9/22/2008 12:25:00 PM

Personal Jurisdiction:
Constitutional Limits in Litigation Definition: Power of court (federal or state) over this person (defendant) Relevant Statutes/Constitutional powero US Constitution Art. III-established congress with power to create federal courts o Due Process Clause- State shall not deprive any person of life, liberty, or property without due process of law (14th Amendment) o FRCP Rules 4(k)(1) A- The federal courts jurisdictional reach is equal to that of a trial court (a court of general jurisdiction) in that state. B- if you are joined by 14 or 19 and you are served within the 100 bulge of the summons issued. o Collateral Attack You start a second suit to challenge the judgment of the first suit. In collateral attack, you wait for them to come and get your property, but then you argue: They cant have my property! The first lawsuit wasnt valid because they didnt have jurisdiction! Why use collateral attack from a strategic standpoint? Its cheaper than hiring an out-of-state lawyer to argue on your behalf. 12 b2-motion to dismiss for lack of PJ-must be first motion. o Must make as part of a special appearance to avoid consent to PJ. Service of Process o FRCP Rule 4-Summons C-1 must contain summons plus complaint. C-2 By a non party above the age of 18 years old. D- Requesting the defendant to forgo process

Incentives include adding 30 days to answer Penalties include having to pay expense for service. E-Serving within a Judicial Dsitrict 1-you can follow the states service of process rules 2-give it to them personally, at their home with a person of age who resides there, or with an agent authorized to receive a summons. H-Serving a Coroporation Follow E-1 or give to an authorized corporate official to receive process (may be Secretary of State for many companies) K-2 A-If the defendant has MC with U.S. but not one state, you can still gain PJ. M-Time limits 120 days after filing complaint in court or it will be dismissed.

1. Origins of Personal Jurisdiction:

Pennoyer v. Neff o Ruled that DP is inextricably connected with personal jurisdiction. A. Three Fundamental Themes Base o Power- Over persons, Intl Shoe & progeny and over things (in rem) Shaffer. Except for marital status issues (you should be chained down because spouse is gone) Except if he accepts jurisdiction of the court. Appears before court and doesnt contest PJ. Execute Power via: o Consent- substitute over Power (Carnival Cruise) o Notice- requirement to exercise Power (Mullane)

2. Modern Constitutional Formulation of Power

Issue turns on status as a resident/non and present-not. o Is defendant State Resident? Yes Home state has PJ over defendant regardless whether issue in court arose out contacts within forum state Individual Domicile- home base with intent to remain. Corporations Domicile- State of Incorporation (DE) principle place of business or Corporate HQ or nerve Center o Is the person an Absent, Non-Resident? Yes Two Requirements to assert PJ DP requires the defendant has certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fairy play and substantial justice (Intl Shoe)

Minimum Contacts Definition: non-mechanical (totality) test looking for activities with the forum state that of a quality and nature that are arising out of the activities, or systematic and continuous (exceptions due exist) Also, received benefits and protection of the laws of the state including the right to resort to the courts for the enforcement of its rights and Not irregular and casual Courts care about contacts including: Sales Services Solicitation o Regularity of above activities Seek to serve forum market

Traditional notions of Fair Play and Substantial Justice Definition: not to place too great and unreasonable a burden on the corporation to comport with due process

3. Absorbing In-Rem Jurisdiction

Asserting PJ using in-rem o One could obtain jurisdiction over in-rem (land) (Pennoyer) but also debts wherever those debtors stepped foot. (Harris v. Balk) In-Rem falling under Minimum Contacts test o All assertions of state court jurisdiction muse be evaluated according to Intl Shoe and its progeny (Shaffer) o Property whether tangible (in-rem) or IP, stock, etc. (quasi in-rem) is defined as only a single contact applied under Intl Shoe minimum contacts test (Shaffer v. Heitner) o Property as a contact must be attached if the suit arises out of contacts with the property. (Idaho Hypos)

4. Specific Jurisdiction: The Modern Cases

Definition: o PJ asserted over absent, non-resident where issue arises out of particular contacts in the suit. Three Requirements for Specific Jurisdiction Lack of Any one category can destroy PJ. 1. Arising under Specific jurisdiction can only arise out of particular activities at issue within the forum state. The more connected to the suit, more likely assert PJ. 2. Minimum Contacts Gold Standard: Purposeful Availment Test? (Hanson v. Deckla) o Minimum contacts requires and can arise if defendant purposeful avails itself of the privileges of conducting activities within the forum State (Hanson v. Deckla)

Purposeful avail(ed themselves) is a new tool to determine minimum contacts, moving away from just using isolated contacts to establish PJ.

Types of Minimum Contacts o Can a single contact be enough? Yes Contract-Manifest Interest (McGee) Strong interest to gain PJ over defendant in order to protect defendant against taking suit to other another states court at substantial personal hardship. Despite being good law, this high water mark, isnt often relied upon. Contract Plus o Based only on out of state contacts not enough. o Continued, substantial, relationship, before and after signed contract required. (Burger King) Reached out beyond into state with actions and payments. Stream of Commerce Test (Asahi-3 Different Standards) o SC has not definitively rules on this issue o Awareness + Stream of Com PLUS list (OConnor Test)-4 List of P.A. types of contacts Product design for forum Advertising in forum Regular advice to forum Servicing the forums market Offices Distributors o Awareness + Stream of Commerce + High Quantity/Time (Stevens Standard) Concurrence-5-One could argue that with 5 justices concurring, this standard with proper facts could provide grounds to reasonably assert PJ. o Mere Knowledge/fortuitous plus Stream of Com. (Brennan Test)-Dissent-4 Internet Websites

o Sliding Scale Test Passive-no Interactive-no Forms Contracts-Yes Must do a factual analysis as to the level of interactivity of the site and the jurisdictional consequences that follow. Tortious/Defamation o Effects Test (Calder v. Jones) Plaintiffs knowledge of adverse effect on defendants in their domiciled state. (Keeton) o Only Knowledge Insufficient (Pavlovich)

3. Traditional Notions of Fair Play and Substantial Justice Three Part Standard Awareness/Foreseeability Test? o Definition: defendants conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. (Worldwide Volkswagen.) Not merely that his product serve as agent for his service of process b/c its entered the form state o Fairness Test -determining location of litigation Dicta in WWVW; Made Law in Asahi Five Factors (sliding scale, 3 most important) Burden on defendant Forums interest to adjudicate Plaintiff interest Interstate judicial interest (full faith) States interest in furthering policy This section can sometimes lead to PJ being granted upon a lesser showing of MC than would otherwise be granted (Burger King) State Power (WWVW) o Even if Fairness is good; DP stands supreme to mitigate States reach and sovereignty (deals with outside state desire to adjudicate)

5. General Jurisdiction
Definition: Courts have power over person in forum state on all claims/suits o Are you State Resident? Yes If: Corporation: Incorporated State and home base state Gas Companies can be found in most states Individual: where they are Domicile/Resident/(intent to remain) Are you an absent non-resident Corporation? o Limited Supreme Court Guidance (2 cases) Tougher Standard than Specific Jurisdiction Continuous and systematic (Helicol) Isolated purchases, trips not enough Jurisdiction by Necessity No other venue for redress (Perkins) o Very particular details; not relied upon in most cases Are you a Present, Non Resident? o Personal Service All assertions of minimum contacts assumes absent, non-resident. (Burnham) Personal service upon person in forum state meets standard under DP (Burnham) Lower courts conflict on application to registered agents of a corporation. Issue can be resolved via consent to doing business in state. (Finishing with Minimum Contacts)

6.Consent as Substitute for Power

Forum selection clauses are enforceable (Carnival) o Follows the similar line of reasoning as notions of fair play and substantial justice o Not every state enforces forum selection clauses; thus it may be limited in scope.

Exceptions o Fraud o Unconscionable contract? o Lack of notice-language given after the fact. o Waiver Defendant submits to jurisdiction by appearing

(Moving further away from Power/Minimum Contacts paradigm)

7. Constitutional Requirement of Notice

What is constitutionally adequate notice? (Mullane) o Notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection o Go to that fullest extent Send them mail to their last known address. If you cant do anything else, do publication, because it is better than nothing. Doesnt require that everyone actually be given notice; but that all reasonably calculated options are exhausted. o Fact sensitive ruling

Look at pg. 149 in Yeazell for Flow Chart

8. Self Imposed Restraint on Jurisdictional Power

A. State Long Arm Statute o Do issue satisfy Long arm statue of State? Yes-Look to Due Process, MC, Fair notion, etc. No- Courts lack jurisdiction

o Puts limits on Constitution. Preserves judicial resources for only the most relevant cases o Threshold Test on Jurisdiction o B. Venue-28 U.S.C. 1391 o How do we know what venue is appropriate for defendant? A-Diversity Claims 1-If all defendants are from the same state, any district will do 2- The location of where the action or omission occurred 3-If above dont work, anywere you can assert PJ. B-Federal Question 1 and 2 same as above 3-anywere where defendant may be found C-is a special provision for corporate defendants, which says that venue basically collapses into where it resides and has most MC for personal jurisdiction. D-Aliens can be sued in any district C. Declining Jurisdiction: Transfer/Forum non-Convenience o Akin to Federal Transfer Venue Statute but lacks official statute. o Alternative Forum is Intl Court o What is required to satisfy Forum Non-Convenience? Gilbert Analysis (GilbertPiper) Private Interests Access to sources of proof Ease in bringing compulsory witness Cost of bringing willing witnesses The possibility of viewing of the premises Public Interests Court congestion Local interest in deciding case Avoiding conflict of laws Unfairness to locals deciding distant case Change of Law for Benefits in Alternative Forum (Piper)

Just because other forums law is not as favorable cannot solely be used to not move the case Except when other forum provides NO remedy. D. Change within Forum (Federal Court System) o Transfer of venue 1404, 1406, and 1631 28 U.S.C. 1404, You can only transfer a case to a district court that has personal jurisdiction and venue. This provision sort of bootstraps the venue statute: 28 U.S.C. 1391. The test in 1404 is whether the current court is: (1) Convenient to the parties, (2) Convenient to the witnesses, (3) In the interest of justice. This is sort of like an inter-court forum non-conveniens. o 28 U.S.C. 1406 says that if you mess up and file in the wrong venue, they can just transfer it over rather than dismiss the claim and refile. o 28 U.S.C. 1631, You can transfer for want of jurisdiction. o States have their own Choice of Law Rules: Place of injury Most significant relationship to the events and parties

Subject Matter Jurisdiction

Definition: Subject Matter Jurisdiction is authority of a court to hear cases of a particular type or cases relating to a specific subject matter. SMJ over claims of plaintiff. Yeazell-which kinds of cases belong in which kinds of courts Professor Stephens- courts power to bring a decision of a type of lawsuit, particular class or category defined by certain attributes FRCP Rules: Rule 12H(3)-Court can at any point in the suit dismiss claim for lack of SMJ 12(B)1-motions for lack of SMJ can be made at any time. 8 (a)- must file a complaint with your claim to assert jurisdiction. Where does power of SMJ come from? Broad Constitutional Power - Article III Section-Federal Courts may be established by Congress (court of appeals) Narrower Congressional Implementation via Statute Limits the power of federal courts to certain kinds of cases USC 1331 Federal Question arising under USC 1332 Diversity Jurisdiction USC 1367 Supplemental Jurisdiction

A. Federal Question Jurisdiction

Constitutional Power: o Article III Section 2 Clause 1 The judicial power shall extend to all cases. arising under this Constitution o Congressional Implementation:

28 USC 1331 District courts shall have original jurisdiction of all civil actions arising under the Constitution. o Same word; different meaning and application Constitutional Broad Standard: Arising under o Federal Ingredient (Osborne) If the suit has a federal component anywhere in the suit, federal courts can assert SMJ. Congressional Implementation Arising under (1331)-Requirements o Is it part of the well pleaded complaint? Well-pleaded Complaint (Mottley) Only if required federal question, statute, issue, is brought into the initial complaint of the plaintiff. Understood to mean that federal law must create cause of action and give private right to sue for relief. 97% of cases are resolved this way! Holmes Test Under the law that creates the cause of action o What if it is a more complicated embedded Federal Standard? Embedded Federal Issue (Merrell Dow) Despite embedded Federal standard (company failing to follow federal guidelines), lack of private cause of action, (administrative agency was instructed to take care of issue), thus there is no SMJ. State law claim gave you the cause of action and private right to sue but you had alternative forum to prove your federal claim. o The administrative agency had elusive jurisdiction over the federal claim.

Thought to over rule Smith case- because there was federal law that was at issue. o Grable tells us otherwise. o What exceptions are there to Federal embedded issue? Smith/Grable Exception (something less or different Yeazell) Federalizing Issue Four Requirements Necessary to the claim Important and substantial federal issue **Upset the balance between state/fed courts** Disputed o Issue spot; wouldnt know consequences. FRCP arising under Rules To Dismiss you can Invoke either: o 12 b (1) Lack of SMJ o 12 b (6) failure to state a claim upon which relief can be granted B/c arising under SMJ is dependant on claim Cases cant be collaterally attacked for lack of subject matter jurisdiction. Cases cant be attacked ex post facto (after decision is reached) for lack of SMJ. Cases containing both SMJ/PJ dismissal; SC ruled can dismiss via PJ (broader/denies future state claim)

B. Diversity Jurisdiction
Constitutional Broad Power o Article III Section 2 Clause 1 Citizens of Different States Citizens and foreign states, citizens, subjects, o Supreme Court Interpretation Minimal Diversity Must contain at minimum diverse parties on each side of V. What is the source for this?

Congressional Implementation o 28 USC 1332 In controversy exceeds the sum or value of $75,000 and is between citizens of different states, subjects of foreign states, foreign state, status as a minor Corporation shall be deemed a citizen of any state of incorporation and principal place of business o Complete Diversity None of the plaintiffs in a case can be from the same state as any of the defendants (Strawbridge v. Curtis) Definitions o Single Citizenship An individual is a citizen of state in which they were domiciled. Domicile is defined as the last state they have taken up resident with the intent to remain indefinitely. o Corporate Citizenship State of incorporation and place of principal place of business Nerve Center Corporate headquarters, home office from which its activities are coordinated o (Egan v. AA) o Status of US citizen residing abroad Lacks Domicile A US citizen who has created domicile in a foreign state can not file under diversity because they lack citizenship of any state (Redner v. Sanders, NY District Court) o Status of Alien-resident in US Differing Opinions on Alien-Alien-Lower court split Regardless of resident status, if only two aliens, there can not be DJ (Saadeh v. Farouki 1997) Dual Citizenship- resident of state and citizen of foreign state (Intec USA v. Engle 2006) SC has not decided the issue

Amount

o Status of Minor Representative takes minors status at the onset of the suit. o Insurance Company If the insured person is a defendant, insurance company is citizens of the state of the person insured. in Controversy Controlled by the plaintiffs pleaded complaint above 75K Aggregate value of claims o 1. A single plaintiff suing single defendant can aggregate unrelated claims o 2. Two separate parties cannot in general aggregate claim unless its a single undivided interest. (May not be separate or distinct) Same legal right (same piece of property) o 3. One plaintiff meets the requirements, 2nd plaintiff with the same claim with less than is statutory required, both against the same defendant, the 2nd plaintiff can piggy back and sue defendant in federal court (Exxon) Must be against one defendant in order to work You must have amount against each defendant! Deals with class actions suits o 4. If you have multiple plaintiffs and defendants, total amount in controversy will be determined by the total value; however it must be a single undivided interest and even if they have a community interest or it arose from a singly instrument. Aggregate non-monetary value o How do you value injunction? Value to Plaintiff Costs to Defendant Rose v. Giamatti

C. Supplemental Jurisdiction
Constitutional Broad Power Article III Section Two o to all Cases and Controversies

Not just claims, but all cases including claims that would not be brought on their own. Same Nucleus of Operative Facts (Gibbs) Lack of supplemental jurisdiction on issue of extra claims not authorized by congressional statute (Finley) Congressional Narrow Implementation 28 USC 1367 (1990!) o Arises under federal issue and diversity cases Clears up federal supplemental jurisdiction Gives Jurisdiction o Section (a) (codifies Gibbs and Finley) If a district court has original jurisdiction it can assert supplemental jurisdiction over all other claims that are so related to claims in the action, that they form part of the same case First see if A applies then look at B. Exceptions o Section (b)-3 parts If A applies, then see if B will take it away. In any civil action of which the district courts have original jurisdiction founded solely on section 1332 (diversity) of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims: By plaintiffs against persons made parties in the suite under (FRCP) o 14 (3rd parties, Indemnity) o 19 (required joinder of parties) o 20 (permissive joinder of parties) o 24 (intervention) By persons proposed to be joined as plaintiffs under Rule 19 (required joinder of parties) Over seeking to intervene as plaintiffs under Rule 24 (intervention) Section (c)-further exceptions o You can decline under section A if: If its a new and complex issue

The issue predominates what you are planning to hear All other claims have been dismissed Other compelling reasons to dismiss Court has extreme leeway in interpreting this rules o Most issues could go either way under Section C.

Joinder 13-Counter Claims, Cross Claims o Defendant can counter claim against plaintiff who has claimed against him. Two types: A. Compulsory (those arise out of the initial claims/situation) he must assert it or he will lose it. B. Permissive- unrelated claims against plaintiff having nothing to do with initial claims of plaintiff. Wont be lost if not brought up. G. Assert cross-claims (this must arise out of the initial claim brought in the suite) (against same side of the v.) which then opens up those plaintiffs to counterclaims, both A and B. 14) Creating Third Party Defendants o Creating 3rd party plaintiffs and 3rd party defendants Creating indemnity 18- Joinder of Claims o Provides a party seeking relief from an opposing party may join with his original claim any additional claims he has against the opposing party and that includes anyone who is joined later on. 19:Required Joinder of Parties o Feasible: You cant have complete relief without the joined party The non-joined party has a interest and could potentially sustain significant problems b/c it wasnt joined and The existing party will have to deal with inconsistent results by themselves. The court may order that person plaintiff including involuntary plaintiff but can also be a defendant.

o Not Feasible: must determine whether in equity and good conscience the action be should proceed or dismissed 20. Permissive Joinder of Parties o 1. For both plaintiff and defendant (a) You can join if you assert any right to relief jointly or relief from them jointly (b) If law or fact common with the plaintiffs will come up Allow plaintiffs to sue multiple defendants in a single action if the same criteria are met Glannon o 2. Judge can bring in separate trials to protect particular parties against embarrassment or other things that would require it because you were joined in the case 23-Class Actions 24. Intervention o Intervention of Right Unconditional right by federal statute Hurt his interest o Permissive Intervention Conditional right by federal statute Executive order to govt agency or officer

Remand/Removal Rules 1441-Removal o Questions to ask: Are there grounds for original jurisdiction in fed court? Is it based on diversity? Is it in defendants home state? Is it based on federal question? Is it the same or different claim? o (a) You can move from state court to a district court if it has original jurisdiction o (b) Exception to section (a) is suit is based on diversity, the defendant cant move it to federal court if its in his home state o (c) 1331-arsing under- if you add a separate, unrelated removable claim to two plus unrelated thus irremovable claims, the entire set of claims can be removed into federal

court (even if your in your home state, you can move it) but can also remand the 2 claims Worries this is unconstitutional. o d) If a foreign country is brought into state court, foreign state can move the case to district court but will not have a jury trial. 1446-Removal-Federal Court Decided o (a) Appropriateness of the removal is decided by the federal court, federal law. o Once the notice for removal is filed it is moved to federal court. Then federal court will decided whether they would actually hear it. o Then the plaintiff will file a move to remand. o (b) Removal must be filed within 30 days of when the amended complaint, or when the last change of the plea. o But it MUST be filed within a year, regardless of what federal claims are later added. Certain claims, added afterwards, will remain in federal court 1447-Remand to Lower Court/State Court o (c) - Motion to remand must be filed within 30 days. Decide them quickly. o Lack of subject matter jurisdiction can be decided at any point. o E-if you try to add parties that would upset subject matter then the court could deny joinder or remand you back to state court.

9/22/2008 12:25:00 PM Erie-Choice of Law Definition: If a case is brought into federal court (diversity or supplemental) and there are state claims, what law should apply? State? Federal? Common law? Statutes? Which procedures? Which Choice of Law Rules applies? 28 U.S.C. 1652- Rules of Decision Act Laws of the Relevant States except where the Constitution or Act of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the U.S. in cases where they apply o What does several states mean? o What does law mean? Pre-Erie Decision Tyson v. Swift Rule: We dont apply NY common law, we are not bound by their different analysis, and we have our own minds and our own common law rules.-Stephens ONLY Statutory Law binds the courts, not common law o Intended to create a common body of federal law Policy Implications o Very pro-business o Gave advantage to out of state parties via diversity rules

Erie-Constitutionalizing the Issue Is this issue substantive or procedural? Rule: o State Law applied over law; federal power over procedure o State claims in federal courts, state laws apply, including common law, and so does choice of law rules in the forum state. Corrected: Ended the idea of a general common law Ended out of state advantage (Taxicab Case)

o There is Federal Common Law, only where Congress authorized there to be. Goals of Erie: o Stop forum shopping, o Avoid unfair differences in administration of justice between state and federal courts. State Supreme Court can give answer by certifying a question of state law from a Federal court Federal Common Law o Exists in areas given by Congress Trouble can occur if there isnt a federal statute to decide if such common law has a basis to exist.

Modifying Erie-Outcome Determinative Test (York)-(State Rule v. Fed Prac.) Rule: If there is an outcome determinative federal practice, we must apply state rule to keep the same result o This was a policy decision, not a constitutional compulsion; meant to keep uniformity for state decisions. Doesnt distinguish Erie between substantive law (matter of substance) v. procedure (manner, form, mode, means) Issues with Outcome Determinative Test o Many procedure/practice are outcome deter o Too much use of state laws (Ragan) o Destroys much of FRCP! Modified Outcome Determinative Test-Byrd (State Rule vs. Fed. Practice) Is the issue outcome determinative? Are there other competing federal interests? Then you have to balance federal interests Maximizing uniformity of outcome should yield to the federal policy-Glannon Upheld York and Erie-waiting for Hanna to clean up the mess.

Moving from Constitutional to Statutory Three Questions:

Does a Federal Rule or judge made law apply on point? In conflict with state law? o Can you avoid the conflict? Is it valid under REA?

Hanna Is this

Rule: (Clear State Rule v. Federal Practice and/or Fed. R. Civ. P.) issue substantive law? Is it Federal practice, judge-made law? Yes! o Part #1- Relatively Unguided Erie Choice (Federal Practice) Updated Modified Outcome Determinative (final decision) Test: Use Byrd/Gasperini Test in the context of Eries goals: Avoid forum shopping (not likely here) Inequitable administration of the laws (same) Look at significant Federal or State interests (Gasperini via Byrd) Things to look for: o Substantial or trivial? o Rule: Must apply state law if applying federal law would result in forum shopping and inequitable administrations of law because of the likelihood of a different final outcome. Federal interests are also important. Is it a federal Rule, Statute, vs. State Law o Yes Part #2- Constitutional and Statutory Authority (Federal Rule/Constitutional Provision) Rules Enabling Act (Arguably Procedural) Constitutional: Article III o Make rules governing the practice and pleading in federal courts Statutory: REA o Authorized by S.C., passed Congress.

Federal supremacy clause, tells us this is above all other state laws/procedures. o Same as long as doesnt abridge, enlarge or modify any substantive Right Rule: Obviously Federal Rules are only procedural; otherwise they would not pass the REA, S.C. or Congress! To argue otherwise you would have to say REA, S.C. and Congress are all wrong! arguably procedural; ergo constitutional Is there anyway to avoid Federal rule conflict with state rule? o No- Follow Hanna Part 2 Federal Rule is supreme! o Yes-Follow Modified (Gasperini) Hanna Part 1 Combination of Byrd via Gasperini(Accommodating Fed/State Countervailing Interests) Majority (Ginsburg) Rule 59 doesnt apply (no conflict with state procedural mechanism for substantive law); allowing district court to decide state substantive issue. Minority (Scalia) State law uses procedural mechanism to decided substantive issue Rule 59 does apply; bordering on 7th amendment. Problems will arise with REA if such a procedure would guide and impinge on clearly substantive NY law.

Recap Federal provisions which conflict with State Law (statute, rule or procedure) What test is applied when?

 o Federal Constitution Provision and State Law Supremacy Clause o Federal Statute and State Law Supremacy Clause o Federal Rule and State Law Hanna 2 o Federal Judicial Practice and State Law Hanna 1 Very complicated o Federal Rule vs. State Rule to execute substantive right Avoid conflict Interpret the federal rule so that it doesnt apply here thus allowing for state law to hold taking into account countervailing state and federal policies. Gasperini-Rule 59- jury review o 7th amendment jury trials o FRCP 3-statute of limitations

Litigation

9/22/2008 12:25:00 PM

Pleading:
Rule 8: o A) Claims for a relief require: -Show why you can assert jurisdiction -Short and plain statement with facts as to why you are entitled relief -Demand relief and in what form ($$ or injunction) o B) Defenses: -You must respond in the affirmative to all parts of the complaint -Admit or deny the allegations of the plaintiff If you dont explicitly deny something; assumed to be true. Short and Plain Statement Early Interpretations o Plead enough to give the defendant notice and reasonable belief to your complaint. (Haddle) Later Interpretations o Complaint in which Relief is plausible on its face (Twombly) and nudge [e] claims across the line from conceivable to plausible Narrowly only applies to anti-trust cases or cases which need expensive litigation. Require some specificity Broadly- unless there is something in the complaint that undermines the complaint, then everything will be allowed to go forward. Require facts that push complaint from conceivable to plausible Plausible- still unclear as to what S.C. meant by plausible? Rule 9 If you are showing fraud or mistake, you must show the particular circumstances constituting. You must put time and place in order to test the sufficiency.

Rule 11: A-You must have a signature, name, phone #, email address on your complaint. B-by filing complaint you are doing so in good faith and not: o To harass cause unnecessary delay, or increase cost of litigation o Make frivolous claims to change law o Factual contention have evidentiary support o Denial of facts has evidentiary support C- Sanctions: o Court may impose or ask party defend itself against 11b o Requires separate motion o Nature of Sanctions: Nonmonetary directives, fines to the court, pay the movant for attorneys fees, o Should be against lawyers and firm; not against party unless he represents himself. Rule 12 (b) 6 o Demurrer/So What Motion Even if what you plead is true, dismiss because you failed to make a complaint on which relief can be granted. C- judgment on the pleadings o After pleadings are done, move for judgment D-If you use matters outside of pleadings, it turns into a de facto motions for summary judgment E- if any part of the complaint that a response is allowed is unclear or vague you can ask for a most clear statement in order for you to properly reply. F- court can on its own or in response to a motion decide to strike part of the complaint including insufficient defense or redundant, immaterial, impertinent, or scandalous matter. G-Joining motions o You can join motions of rule 12 except for: If you join motions, you better include everything because you cant do it again with anything that was previously available.

H-you waive any 12b2-5 motion if you dont bring it at the earliest possible point or o Making part of a responsive pleading as opposed to a separate motion. o

Amendments-Rule 15
Break Down of Amendment o A) 1. Amendments before trialo (B) Amendments during or after trial o (C) Relation Back of Amendments. When justice so requires. (15A) o When there is good reason it wasnt there initially and the and that it wont prejudice the other party too much. Balance Plaintiff v. Defendants benefits and harms Repeated issue-Should defendant have known to make proper answer? Litigate on true facts; not on a fiction. Relation Back (15C) o A-relevant statute allows for relation back after limitations plus o B- it arises out of the same conduct, transaction, occurrence, Statute of Limitations Claims may be added based on the same conduct, transaction, or occurrence IF Big Issues Should have been expected, the initial claims should have been notice Should you put you on alert o Similar idea to notice of discovery Timing of motion effect on Prejudice. What stage of the suit? o Before or during Discovery-prejudice minimal b/c further evidence gathering will commence

o After Discovery is closed-prejudice would be too high Changing theory of law o Narrow to Broad wouldnt qualify(Moore); broad to narrow may work (Bonnerb) C- All above apply plus: Adding a party, that party must also have: Received notice within the same time period as the original party; and if changing/adding party That party should have foreseen this issue b/b it wasnt brought against them but only for the wrong person.

Discovery
Rule 26 A-1-Requires initial discoveries o 26 a 1 a you dont have to release information if its going to help the other side if your not going to rely upon it. o 26 a 1 2 if disclosing party has in its custody or control you have to get it and disclose; you cant say that your doctor has it, or your partner has it, you still have to get it. 26 a 2 o Expert Witnesses at least 90 days before trial, give his bio, money paid, exhibits, report of what he is going to say He can also be deposed by opposing party A -3 Other pretrial disclosures (B)-1 o Scope of discovery Unless otherwise limited by court order Over non-privileged matter that is relevant to any partys claim or defense. Privileged includes Attorney-client Work Product

End of 26b1- reasonably calculated to lead to admissible evidence o B-2 must limit discovery if: discovery rule to cover difficult to search but relevant information o C When Required to limit Unreasonably duplicative, get from other source Ample opportunity to get this already Burden expense outweighs the likelihood of its benefits o Rule 26 b3-Work Product Protected 1. If it prepared in anticipation of litigation or for trial by or for another part or its representative Opposing counsel mental impression, conclusions, opinions, or legal theories of partys attorney, or other representative Work-Product Policy (Hickman) o Stop piggybacking o Difficult to separate facts from legal theory o Protect client-attorney privilege Not Protected and discoverable if One shows substantial need and cant do it by other means or undue hardships. Otherwise discoverable under 26b1. 26 b4 Trial Preparation Experts o you can depose any likely expert witness but only after his report is provided. o Non-testifying experts Dont need such disclosure unless: If they performed a physical or mental examination. Discovery of them requires exceptional circumstances You pay for all these costs to expert and party. 26 b 5 B-Claiming Privilege

o Withholding information Make the claim; Describe the things not disclosed with revealing the privileged info. o Inadvertent disclosure of Privileged material court will rule on its status; holding party can either destroy hold or return in the meantime. 26 c- protective order o anyone can move for it; party or person if: tried to resolve with parties; protects against annoyance embarrassment oppression or undue burden or expense 26-e- Supplement Disclosures and Responses: o if you find you made a mistake you mist in a timely fashion fix it OR o as ordered by the court. o This is also includes Expert Witnesses. 26 f-Discovery Meeting o Parties apart from the courts must meet to establish agreeable discovery rules. 26 g- it needs to be signed taken to mean that it is done in good faith

30-Depositions Must answer. o C-2 Defense may object but witness must still answer; objection to be decided at court. o Requires Rule 45-subpeanoa for non-parties for a deposition. B-1- in order to depose by oral questioning you must give reasonable written notice to every other party. B-2 You must also specify pursuant to rule 34 any documents or other tangible items to bring to the deposition. B-6- directed towards an organization to produce proper person for your subject matters deposition. D-1 deposition is limited to one day of 7 hours. D-3- you can terminate deposition based on embarrassment and can stop it to get a court order. You can attach any of the documents produced for the deposition.

Rule 33

-interrogatory Only can be given to a party not to a witness Cant exceed 25 including sub parts Asks for information available to the party, you may have to go do research Must be answered within 30 days Must be signed by party giving answers.

Rule 34-Production of Documents, Tangible Things, Only to party to ask for documents and other information or inspect. Company can designate central point for asking party to investigate and then open it up to doing so. (interrogatories can do the same) No limit on number Give notice to do but not limited to documents; can include car, places, land. Must respond within 30 days. Non party-Can be subpoenaed to produce these things. Rule 35-Mental Physical Examination Only if its relevant, on its face to the controversy The court requires it. Only on parties. Only court can issue 36-Request for Admissions Limits scope of discovery by establishing maters as facts thereby admissible at trial.

Rule 37-Sanctions Compel Discovery o narrowly tailored to the specific allegations of the plaintiffs complaint (Davis) A.1.- confer to find a resolution A.3. move to compel disclosure or discovery

A.5. paying moving parties fees C- protective order can limit scope of discovery. B-Further Sanctions Striking claims, taking disputed facts as established, excluding evidence, dismissing action, or payment E-Destroying potentially discoverable information duty to preserve attached at the time that litigation was reasonable o put on litigation stop destruction policy of documents Adverse Inference (UBS) o Must show duty to preserve proven through notice o Culpable state of mind (intentional, reckless, negligent) o Relevance (substantial) 37F-E-Discovery routing good faith operation of e-documents prevents sanctions

Pre-Trial Judgment
Rule 41 A-Voluntary Dismissal-rule 41 anytime before the defense answers, responds in some way, you can dismiss After the answer, if the parties agree or power from the court, o Plaintiff incentives to dismiss Learning your case may result in a loss (Texaco/Pennzoil) B-Involuntary Dismissal 41 Motion for dismissal by the defense for lack of going forward, if its denied you cant appeal right then, and its going to be hard to appeal later especially if you lost the case and are looking to change the outcome. Dismissal with prejudice: you have no more chances.

Default Judgment-Rule 55-C standard defendant fails to plead or defend. Failure to file an answer

o To defend is quite broad from only filing an answer all the way filing motion to dismiss, get rid of the case, pre merits, and then when engaged in discovery, they basically disappeared. Rule 60 B Setting aside Default judgment Basis-not used all that often. o based on lawyer error, with high correlation to lawyers that lack insurance or assets o Lack of notice Notice must be reasonably calculated Late notice and no notice for DP; neither is valid! Lack of notice negates requirement of meritorious defense Summary Judgment-Rule 56 General Benefits tactfully useful to see the best argument from both sides Helps the judge as well. Some facts can be agreed/lacking evidence, only issue of law Pledge Allegiance Green Light Can be filed by either side, Based on pleadings, but not only, (plus), material form discovery (depositions, documents, interrogatories, parties own efforts, affidavits,) You can ask for summary judgment on one, some or all claims You can receive judgment on liability but not the damages. Use information that would tend to be admissible evidence Key Issue: Deciding if there is genuine issue of material Fact Lacking GIMF, summary judgment is appropriate Burden to show absence GIMF Either P or D can make motion for Summary Judgment o Adickes Standard-OLD

Burden on Defendant to: Foreclose the possibility that there is no GIMF! Places to much of a burden on defendant o Standard even higher than at trial o Celotex Standard-CURRENT Burden on Defendant Poke holes in plaintiffs evidence; which plaintiff is unable to explain/counter with evidence Goal Orientated o Move burden closer in line with trial level Specific evidence will override general evidence; enough to poke holes. (Bias)

Judge/Jury
Rule 50A-Judgment as a matter of law judgment no obstante verdict JNOV o Judge takes it away from the jury court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue Doesnt violated 7th amendment b/c that only preserves right! o Motion for JNOV Before and after verdict to preserve right of appeal Otherwise if only after verdict, request is to review jury decision, which isnt allowed. o Judge decision to grant Allow jury to deliberate and then decide More efficient If judge was wrong and overturned it would cause a totally new trial because it never went to a jury Rule 59-relates back to common law- 1930s o New Trial-Rule Look to the reason why they did it back in the day

Rule: If a judge finds out jury logic was incorrect from the jurors is not grounds to review a jury decision. o Jury Decisions You can ask a jury just say a simple yes/no and simple numbers Or you can ask questions they have to answer Sometimes questions have contradictory answers.

Appeal: trial should be the main event, not the first of many acts
Basic Questions: Who can appeal? On what grounds can you appeal? Is it a timely appeal? What is the appellate courts scope of review?

Limitations on what you can appeal You have one appeal as a right Issue must be raised below o you need to make objection to issues you have in trial in order to preserve the appeal. No new issues can be raised on appeal. As the case evolves you may have continuously make objections if the issue continues to be brought up. Finality Rule: o One which ends the litigation on the merits and leaves nothing to do but execute the judgment (Catlin) Summary judgment is not final b/c its only on liability and not relief and doesnt meet 1291. (Liberty Mutual) o Fed System only can appeal from a final judgment. Rare discovery appeals because of finality Many are unreviewable and are not significant enough anyways Some state systems, NY interim decisions can be appealed.

o If a claim is completely decided but the rest of the suit is not, you can appeal those final claims. (Rule 54b) Counter claims cross, etc. also can be appealed even if original claim is still open. Who can appeal o Rule: only if you lose can you appeal. You can only appeal when you win if your losing claim would have gotten you more money/more of something/something different. If judgment on one issue will produce any potential extra benefit, you can appeal that losing issue Fraud further your stance in bankruptcy (Insurance/Contractor Issue) Moot Issueso Time Sensitive/Expiring Issues If something it mooted, because you are not adversely affected, the courts in that case will allow it go forward so that it can be challenged. If it is likely to occur and not always be addressable 1 year divorce time wait Abortion suits are not stopped, mooted out, because otherwise they would never get before a court.

Scope of Review: De Novo- Issues of law review o Makes it own determination what the proper rule should be. Clearly Erroneous- Issue of fact review o If both sides have significant evidence, it cant overturn. o Even more difficult if facts decided by a jury. Basically employs the no reasonable jury standard of judgment as a matter of law Mixed fact and law o Treated like a question of fact Unless it turned on a question of law Issues within discretion of the trial judge o Abuse of discretion Standard Whether to grant a new trial

9/22/2008 12:25:00 PM

Claim Preclusion: Res Judicata: Claim Preclusion-(like a sledge hammer) Definition o Focuses on barring a suit from being brought again on an event which was the subject of a previous legal cause of action that has already been finally decided between the parties or those in privity. o No federal statute on Preclusion-its completely common law based. o Preclusion rules are substantive, rights and remedies, and are governed by state law. o Rule 13a- if you have a compulsory claim and you dont raise it; you lose it! arise out of transaction, parties claims mini-preclusion rule- claims that arose out of the same transaction that was already brought against you. If it was supposed to be a defense in an old suit, you lose it! (Martino) Right to one and only one hearing on one issue or claim. Requirements for Claim Preclusion: Final, valid judgment On the merits Same claim (was/should have been litigated) Between same parties/privies

Is this is the same claim? (Action #1 vs. Action #2) (Frier v. Vandalia and Garage) o Action #1- replavin (state law claim) o Action #2- DP (fed law claim) What should city have done to get preclusion defense? File answer, motion for summary judgment with an affidavit of the previous state hearing.

Could DP claim have been litigated in Action #1? o Is Action #1 (replavin) going to preclude Action #2(DP claim)? Yes-Standard: Modern View/Restatement-Majority Same Transaction broadly defined to include mater related in time, space, origin, and motivation o Causes of the action are identical when based upon a common core of operative facts o Broader than same evidence o Not focused on proving this particular claim, but the general transactions that gave rise to these claims. Modern Rule: You had a problem with the court taking your car then bring up all your issues in one suit, dont categorize, limit yourself. No- Older Restatement View-Concurrence Same Evidence underlying issue was whether town had right to tow car while second hearing dealt with whether hearing (lack and timing) violated DP? o These questions will require different evidence thus there shouldnt be preclusion. Different question means different sets of facts, evidence will be brought hence its a totally brand new issue.

Parties in Privity/Same Parties Werent a party in the previous case; you couldnt join the previous case (Searle) Rule: In order to be in privity you must represent the same legal right.

o You can consent to abide by a decision you werent in privity o Or if the decision applies to a piece of property vs. a person. On the merits once youve had the full opportunity to litigate, on the merits can stick o 12b2(PJ)- only applies in that particular state 12 b 6- considered on the merits since: plaintiff has liberal opportunity to amend their complaint Failure to prosecute Defaults Semtek o In a federal diversity case, there is no federal preclusion rule, you must look at the state court which reached the first decision. Look at their preclusion rules and how it relates to the conflict. Statute of limitations in one state doesnt necessarily mean on the merits and there by preclude the claim. Must look at states preclusionary rules. Final, Valid Judgment: Many courts give preclusions effect to a judgment once it has become final on the trial court level, even if an appeal is pending. Others only give it if the time for appeal has expired or appeal decided. Second Restatement- gives many examples Depends on each jurisdiction Motion under Rule 60- reopen the judgment o Relief from judgment Excusable neglect Clerical errors Has been reversed on the appeal and you should reopen the second case because its not fair to me! Gargallo Case: o OH state rules of dismissal b/c you didnt answer to discovery, then it is preclusive. Even though this is

procedural, it still counts on the merits, gets a preclusive effect. o There isnt preclusive right of federal security claim because OH courts didnt have the right to decide this. UNDER OH law if the court didnt have SMJ then it should not preclude the claim. (not all states do this)

Issue Preclusion: (more like a scalpel; cuts out only the issues) Same Issue Issue actually litigated Issue Decided Necessary to Judgment Offensive vs. Defensive Estoppel Mutuality Relaxed Adequate incentive/opportunity Plaintiff Shopping Issue Preclusion: Bars the relitigation of an issue that was litigation and decided o Doesnt deal with should have o Much narrower Final, valid judgment On the merits Same issue o Actually litigated Party had the opportunity and incentive to litigate the issue in the earlier proceeding. Necessary to the judgment Doesnt deal with party or privity Requirements: (Glannon) The issue must be the same. The issue must have been litigated The issue must have been actually decided. Must have been necessary to the judgment.

Necessary to Judgment Defensive Estoppel The party that wants to use issue preclusion has the burden of showing that the first actions MUST have decided the issue that way in order to resolve the case. The jury had two reasons in the first action. o (Jessies negligence or that there were no damages.) depends on the claims related to the laws. Number of claims vs. laws used to prove it! If there are alternate grounds there cant be issue preclusion!! o If we are unsure why the jury made their decision or there are multiple grounds, then none of the issues can be precluded. What is the mutuality requirement? Full and fair opportunity to litigate o Whether there should be non mutual (party using wasnt party in previous case) offensive issue (being used to prove a claim, usually by plaintiff) preclusion Action #1- SEC v. Parklane Action #2- class action v. Parklane

Basic Application: Should be judged on a case by case basis (Parklane) Two Factors: o Incentive to Litigate to the full extent Was defendant aware enough of the enormity of this issue to defend properly? o Could plaintiff have joined first action? Did plaintiff use wait and see approach? o Parklane: Going up against SEC should have been enough to litigate fully.

Plaintiff could not have joined first action; exclusive to those parties. o If there is a hint that either of these factors wasnt met; issue preclusion will not be granted. Mitigating circumstances: o Incongruous results in this case must be taken into account. Rule: If there is a previous ruling of inconsistency we wont grant issue preclusion. (State Farm v. Century Home) o Different procedural rules: Broader discovery Different levels of burden of Persuasion; can limit issue preclusion (criminal v. civil) o Doesnt apply to U.S. Government, IRS, but not multinational companies.