HAFIZ SPRING 2017

FREILICH CIVIL PROCEDURE OUTLINE

Subject Matter Jurisdiction

 Each state has both state courts and at least one federal court. A lawyer must determine in
which it can or must file in.
 Cannot be waived; The court must have jurisdiction to hear the case; ∆ can object
anytime during the proceedings
 State Courts have broad “general” jurisdiction and concurrent with most federal issues
FEDERAL QUESTION
 28 USC 1331: grants jurisdiction to the federal district courts over all cases "arising
under the Constitution, laws or treaties of the United States"
o Well-pleaded complaint rule: If the federal issue appears on the face of the well-
pleaded complaint; it has met the burden required. *Bright-line rule only relying
on complaint*
 Article III of Constitution: Federal Judicial power extends to all:
o Admiralty and Maritime o Two States or one party from
o Ambassadors different country
o Action against Federal o Citizens of different states
Government

Holmes Group, Inc. v. Vornado Air Circulation Systems: A counterclaim asserting federal
law may not be the basis for federal jurisdiction; would undermine well-pleased complaint rule
 ***28 USC 1454 allows patent counterclaims to be removed to federal court***
 Defenses that rely upon federal law does not create SMJ

Louisville & Nashville Railroad Co. v. Mottley (1908)

Facts: Mottley and wife sustained injury after a train accident. In exchange for no lawsuit parties
entered into contract, which the Mottley’s would receive free tickets for the rest of their lives.
The railroad stopped paying in 1907 citing a federal statute prohibited giving away free tickets.
Issue: Whether the court has SMJ via relying on ∆ to raise an affirmative defense?
R.ROL: A suit arises under the Constitution and laws when the π’s cause of action shows that it
is based upon those laws; not enough to allege an anticipated defense.
Reasoning: The π cannot preempt the ∆’s answer without ∆ first asserting that defense.

DIVERSITY JURISDICTION
 Requires two prongs
o Amount in Controversy exceeds $75K
 Must be a good faith claim; Court disregards if to a legal certainty that the
claim is below minimum requirement
 Each π may aggregate his tort and contract claims in order to satisfy the
minimum.
 When claims are separate and distinct as to each π, the πs may not add
their own individual claims together in order to reach minimum
 Single plaintiff can aggregate claims against a ∆ to assert minimum
amount in controversy

1
 HAFIZ SPRING 2017

Co-π cannot add their claims together to reach the amount requirement
 Can sue jointly if common undivided interest is over the minimum
 A counterclaim will not provide aggregation to meet the minimum
 Π may not aggregate claims against multiple ∆ to establish minimum
o Must have complete diversity of citizenship between the parties via assessing
domiciliary (Strawbridge)
 Domicile: "true, fixed, and permanent home and principal establishment,
and to which he has the intention of returning whenever he is absent
therefrom.”
 Policy:
o State courts may be biased for its citizens; protects from in-state prejudice
 Citizenship:
o Measured at the time the case is filed (efficiency)
o Π has burden of demonstrating the existence of subject matter jurisdiction
o An individual establishes a new citizenship by moving to a new jurisdiction and
intending to remain indefinitely. Unclear intent is enough to establish citizenship.
 To Determine Domiciliary must consider several factors including:
o Exercise of political rights o Place of business
o Payment of taxes o Indefinite period of time
o House of residence

Gordon v. Steele (1974)

Facts: Gordon sued 2 physicians for malpractice for failing to diagnose injury. The missed
diagnosis occurred in Erie County, PA, but π was a student in a school in Idaho. She had no
intention to return to her former state of PA to live, and wanted to stay in Idaho where she
maintained an apartment. However, college records showed her address being in PA.
Issue: Whether π can sue under diversity jurisdiction or is she still a citizen of PA?
R.ROL: One’s subjective intention of not returning to a state in the foreseeable future and has
connection to another state shall be a citizen of the new state for diversity jurisdiction.
Reasoning: The court must consider one’s intention at the time of arrival to the new state.

Hertz Corp. v. Friend

Facts: Melinda Friend sued ∆ for allegedly violating CA’s wage and hour law. They filed the
suit in state court. The ∆ filed for removal for the case to be moved to federal court under
diversity jurisdiction. ∆’s HQ is located in NJ however because of CA’s population largest
percentage of revenue compared to any other state is highest in CA.
Issue: Whether the ∆ corporation is a citizen of California despite its HQ being in NJ?
R.ROL: A corporation shall be deemed a citizen of any state by which it is incorporated and the
state where it has its principal place of business. Principal place of business for corporations shall
be its nerve center, where the officials direct the activities of the corporation. (Brightline Rule).
Reasoning: For judicial convenience it should be the nerve center, where the officers direct and
control the business. However not a place that is idly used w/o it actually being the control or
nerve center. It gives parties predictability and will save money because of less number
crunching if based on revenue.
 Entity Citizenship (i.e. LLP): Considered to be citizens of every state in which their
members are domiciled.

2
 HAFIZ SPRING 2017

Felipe v. Target (2008)

Facts: Π slipped and fell while inside a Target store. Π asserts ∆ was negligent in the upkeep of
the store. Felipe filed claim in state court for unknown damages that seem to be above $75K. ∆
files for removal to federal court. Π sought to remand by adding another non-diverse party.
Issue: Whether the case can be removed to federal court when the amount in controversy is not
specified and complete diversity is in question?
ROL: Diversity jurisdiction does not exist unless each defendant is a citizen of a different state
from each π. Any civil action in which a US court has original jurisdiction a ∆ may remove the
case to such court.
R.ROL: Where the pleadings are inconclusive to the amount in controversy, federal courts may
look outside those pleadings to other evidence in the record. A π may not defeat a federal court’s
diversity jurisdiction by merely joining ∆’s with no real connection to the controversy. (i.e.
Fraudulent Joinder)
Reasoning: The court found Target is incorporated in Minnesota and its principle place of
business is also in that state. The attorney for the π admits the amount in controversy is likely to
exceed the minimum thus diversity jurisdiction is proper. The suit against Kingsbridge is without
merit, thus it is insufficient to defeat diversity.

Diefenthal v. C.A.B. (1982)

Facts: The Diefenthals purchased first class tickets in a smoking area section of plane. Flight
attendant told them there were no more and would have to sit in non-smoker section to fly first
class. Πs assert this was done rudely and suffered emotional harm and humiliation. They filed
suit in Federal court under diversity jurisdiction and amount being $50K in damages.
Issue: Whether the amount in controversy suggested is possible to allow a claim to remain in
federal court?
R.ROL: A claim filed that has no possible way of meeting the statutory minimum shall fail to
meet the requirement to establish SMJ of federal courts.
Reasoning: The π’s did not suffer any physical harm. No matter how rude you are told no, it
does not amount to $10K in damages. Allowing for this to go forward would yield the amount in
controversy requirement a dead letter. The π could not provide any basis or affidavits showing
how the amount would be met when asked.
 If amount is in question, π might amend her complaint to allege damages more fully or
submit affidavits to show minimum is met.

Personal Jurisdiction
 Does the court have power over the defendant? ∆ can waive PJ.
o Policy: Public law respects the jurisdiction of an independent state over persons
and property. Every state possesses exclusive jurisdiction and sovereignty over
persons and property within its territory. Every state shall have the power to
determine for itself the civil status and capacities of its inhabitants and can
regulate the transfer of property.
 In Personam: the court has the authority to require the ∆ to appear personally and defend
the case in the state where the suit was brought. A judgment against the ∆ can be satisfied
from any assets the ∆ owns (full-faith and credit).

3
 HAFIZ SPRING 2017

o Specific In Personam Jurisdiction: Claim arises out of the ∆'s deliberate contact
with the state. Requires only a single or limited in-state contact.
o General In Personam Jurisdiction: Can exist even if the claim does not arise
out of the ∆'s in-state contacts, state of domicile
 Daimler v. Bauman: "continuous and systematic means that defendant
must be "at home" in the state
 For corporations: state of incorporations and principal place of business
 Several state have passed laws saying that all corporations licensed to do
business in the state are subject to general personal jurisdiction (NY does
this for banks)
 Constitutionality has yet to be tested
 In Rem: a court's assertion of control over a ∆'s specific property (i.e. real estate, bank
account) located in the state where suit is brought.
o Does not give the court jurisdiction over the ∆ personally, but subject ∆ attached
property to the power of the court (i.e. Foreclosure, adverse possession)
o Does not give π to power to collect the judgment from other property the ∆ owns
 Quasi In Rem: Based on the presence of the ∆’s property (either real or personal) within
the forum state, but permits the court to enter a judgment an amount not exceeding the
value of the property

Pennoyer v. Neff (1878)

Facts: Judgment rendered for Mitchell in an action against Neff for the recovery of $300 in legal
fees. Neff, a non-resident of Oregon and was not personally served with process and default
judgment was awarded. Mitchell took an ad in a local newspaper to publicly put Neff on notice
of suit. Mitchell had land owned by Neff sold to fulfill the judgment at auction in which Mitchell
purchased and then sold to Pennoyer. The property sold was not attached, nor brought in any
way under the jurisdiction of the court.
Issue: Whether a judgement against a non-state resident without establishing in-personam
jurisdiction is valid?
R.ROL: When an action is to determine the personal rights and obligations of ∆s, where the suit
is merely in personam, constructive service (service by mail), upon a non-resident is ineffectual
for any purpose.
Reasoning: If without personal service, judgments of in personam upon publication of process,
many judgments would be held even if fraudulent. Law assumes property is always in the
possession of its owner. When the proceeding is based upon the property than the court may
exercise jurisdiction. Process from the tribunals of one state cannot run into another state and
summon parties to leave and respond to proceedings against them. To establish in personam
jurisdiction the ∆ must be served process while in the state or his voluntary appearance.
Nuggets: If contract a type of service of process a ∆ can be bound despite not having actual
notice. A state may pass a statute forcing a partnership within the state to have a service of
process agent.
 Pennoyer Rule – Personal Jurisdiction requires one of three ways of service for in
personam cases:

4
 HAFIZ SPRING 2017

1. In-state service (tag jurisdiction)/physical presence

2. ∆ is a domiciliary of the state OR
3. ∆ consents to state’s jurisdiction
Int’l Shoe Co v. Washington (1945)
Facts: Int’l Shoe a Delaware corporation and headquarters in St. Louis hired about 13 salesmen
in the state of Washington. The company had no offices in Washington, maintained no
merchandise, nor made any contracts within state. The salesmen were paid by commission. State
of Washington enacted statute requiring employers within the state to contribute to state
unemployment compensation fund. Int’l Shoe Co. did not pay contribution. Int’l Shoe Co.
contends its activities within the state of Washington did not manifest its presence, thus state
courts were without jurisdiction.
Issue: Whether under the due process clause a Delaware corp. through its activities in the state
of Washington is amenable to proceedings in the courts of the state?
ROL: In order to lack presence in a state its business must be irregular and/or casual in nature.
R.ROL: Due process only requires in order to subject ∆ to in personam jurisdiction and is not
within the territory of the state that he have certain minimum contacts with it and the suit
does not offend “traditional notions of fair play and substantial justice. Reasonableness
factors: burden on the defendant, forum state's interest, π interest in a convenient forum,
interstate judicial system's interest in efficient resolution of controversies (witness & evidence),
Shared interests of several states in furthering substantive social policies, and availability of
alternate forums.
Reasoning: Int’l Shoe Co. maintained a presence within the state of Washington by employing
sales agents who were systemic and continuous within the state, lacking the irregular or
component nature to lack a presence. The corporate entity enjoys the right to utilize its courts
and other protections. In this case specific jurisdiction was established not general jurisdiction;
claim arose out of specific contact of salesman within the state; they were not "home" for the
court to reach general in personam jurisdiction.
Nuggets: Was there personal availment?
 
World-Wide Volkswagen v. Woodson (1980)
Facts: Robinson family purchased new Audi automobile from Seaway in New York. On a
journey to move to Arizona they were rear-ended by another vehicle in Oklahoma causing a fire.
Robinson and two daughters were severely burned. Robinson filed suit naming many parties
including Seaway and World-Wide Volkswagen Corp, which have offices in New York. Both
entities are fully independent corporations whose relationship to Audi is strictly contractual.
Both entities do not ship, sell, advertise, or have any agent present within state of Oklahoma.
Issue: Whether under the due process clause a state court can exercise in personam jurisdiction
over a nonresident retailer where the only connection to the forum is a car sold in different state?
ROL: A state court may exercise personal jurisdiction over a nonresident defendant only so as
long as there exist “minimum contacts” between the defendant and the forum state.
R.ROL: To assess reasonableness: burden on ∆, forum State’s interest in adjudication, π interest
in obtaining convenient and effective relief, Interstate judicial system's interest in obtaining the
most efficient resolution of controversies; shared interest of the several states in furthering
fundamental substantive social policies. SEE 4-Prong Test Below.
The mere unilateral activity of those who claim some relationship with a nonresident defendant
cannot satisfy the requirement of contact with the forum State.

5
 HAFIZ SPRING 2017

Reasoning: Despite the limits imposed on state jurisdiction by due process clause being relaxed
over the years due to a growth of interstate commerce, state lines are relevant to jurisdiction,
which the framers intended. Reasonableness of asserting jurisdiction over the defendant must be
assessed. The plaintiff did not have any contact within the state and motor vehicle in question in
happenstance was involved in accident. If court was to allow this assertion, it is a slippery slope
to where a tire company would be forced to defend case in another state because of a blowout.
The company must purposefully avail itself to the jurisdiction. This protects the ∆ from litigation
in a distant and inconvenient forum. Foreseeability alone has never been a sufficient benchmark
for personal jurisdiction under the Due Process Clause.
Nuggets: Minimum contacts are necessary but they are not sufficient. WW explains in addition
"the relationship between the ∆ and the forum must be such that is reasonable to require the corp.
to defend the particular suit there.
 
WW Minimum Contacts 4 Prong Test
1. Does the ∆ have contacts with the forum state?
2. Are those contacts personal and deliberate? Purposeful Availment?
3. Did Π claim arise out of those contacts?
4. Do the relevant factors under R.ROL yield reasonableness?
 
Calder v. Jones
Facts: Nat'l enquirer publishes article saying Shirley Jones is an alcoholic; Jones sues magazine,
reporter, and editor. Reporter and editor argues no PJ.
Holding: ∆ actions were "expressly aimed" at CA; they knew the article would have a
potentially devastating impact upon respondent. An individual injured in CA need not go to FL
to seek redress from persons through remaining in FL, knowingly caused the injury in CA.

STREAM OF COMMERCE

Policy arguments:
 ∆ can assert liberal approach is problematic because ∆ would have little control where
they are subject to PJ; a part maker in a finished good has little or no control where the
product is sold

 Π will argue lack of control is the cost of doing business in a modern company; if
company benefits financially nationally then it should be subjected to PJ

Rusinowski v. Village of Hillside (2011)

Facts: Steven Rusinkowski and his father Joseph bring a suit for IIED. Steven uses
battlecam.com a website which users role-play with one another in threatening, intimidating, or
combative scenarios. Steven met DiDomenico on the website and DiDomenico began a
harassment campaign including calling the police, sending pizzas to the home, and calling his
school saying Steven had guns and drugs.
Issue: Whether DiDimenico has sufficient minimum contacts with Illinois by his alleged
harassment to establish PJ, that does not offend traditional notions of fair play?
R.ROL:  If a ∆ intentionally directs telecommunications to a forum state and causes injury,
personal jurisdiction may be established.

6
 HAFIZ SPRING 2017

Reasoning: The basis for this lawsuit is the ∆ only contact with the state, specific jurisdiction is
invoked. If DiDomenico intentionally aimed his conduct at Illinois knowing that it effects would
be felt there PJ is permissible. Here DiDomenico deliberately and repeatedly chose to involve
himself w/ Illinois police and schools.

Burger King Corp. v. Rudzewicz (1985)

Facts: Rudzewicz, a Michigan citizen and co-investor MacShara jointly applied to Burger King
for a franchise in the Detroit area. The application was forwarded to Burger King’s Miami
headquarters, where it was later approved after several rounds of negotiations. Franchise contract
established in Miami and governed by Florida law. After business declined, appellees fell behind
on payments leading to termination of franchise agreement ordering appellees to vacate
premises. They refused and continued to occupy and operate the Burger King restaurant.
Issue: Whether under the due process clause a court may exercise in personam jurisdiction over
a nonresident who enters a franchise relationship and contract with a corporation?
ROL: Parties who reach out beyond one state and create continuing relationships and obligations
with citizens of another state are subject to regulations and sanctions in the other state.
The relationship between the defendant and the forum state must be such that it is reasonable to
require the corporation to defend suit in jurisdiction.
R.ROL: When a ∆ purposefully has directed his activities at forum and seeks to defeat
jurisdiction, he must present a compelling case that the presence of some other considerations
would render jurisdiction unreasonable.
When a party establishes a substantial and continuing relationship with a company and receives
fair notice from the contract documents and the course of dealing that he may be subject to a
specific jurisdiction, he may be bound to such agreement.
Reasoning: The appellees created a substantial connection by looking out of state to create a
franchise relationship despite the option of creating own restaurant. He then entered a long term
agreement aware of forwarding payments to FL thus showing the relationship is not random. FL
long arm statutes gives power to assert jurisdiction over a non-resident for a contract breach in
the state.
Nuggets: A contract choosing jurisdiction is not dispositive but the Court should look to the
circumstances of the commercial relationship (i.e. the negotiation, provisions of the contract,
whether negotiations were directed to the forum state, duration of the contractual relationship,
etc.)
 Forum selection clause typically are held allowing parties to litigate in a specific court,
saving expense on jurisdictional litigation costs.
 State law: not all states enforce boilerplate forum selection clauses.

Asahi Metal Indus Co. v. Superior Court of Cal. (1987)

Facts: While riding a Honda motorcycle in California, Gary Zurcher lost control and collided
with a tractor killing the passenger (his wife) and he sustaining serious injuries. Zurcher asserts
products liability. Zurcher files suit naming Cheng Shin who manufactured the tube. Cheng Shin
then files a cross complaint, bringing suit against Asahi who manufactures the tube’s valve
assembly. Zurcher’s claim against Cheng Shin and other defendants were settled leaving the
indemnity suit against Asahi.

7
 HAFIZ SPRING 2017

Issue: Whether a state’s long arm statute can extend beyond its borders to subject a company to
its jurisdiction using the ‘stream of commerce’ to establish minimum contacts with state?
Whether such actions offend traditional notions of fair play and substantial justice?
R. ROL: A substantial connection between the defendant and forum state is necessary for a
finding of minimum contacts must come about by an action of the defendant purposefully
directed toward the forum state. The placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully directed toward the forum state.
Reasoning: Due process limits the power of a state court to exert personal jurisdiction over a
nonresident defendant. The concept of Asahi foreseeing its products in California is an
insufficient assertion. There is not enough to force a foreign corp. to a foreign nation’s judicial
system. The indemnity suit presented is based off of transaction that took place in Taiwan. Since
the plaintiff is not a California resident its legitimate interests have considerably diminished. The
unique burdens placed upon one who must defend oneself in a foreign legal system should have
significant weight in assessing the reasonableness of stretching the long arm statute.
Concurrence: Asahi did purposely avail itself, however jurisdiction would offend fair play and
substantial justice. Reasonableness is defeated. The stream of commerce theory refers to regular
and anticipated flow of products from manufacture to distribution to retail sale. As long as
participant is aware the final product is being marketed in the forum state, the possibility of a
lawsuit can be no surprise. Benefits directly from the sale and indirectly from the laws of the
forum state.
 Three “Stream of Commerce” Tests
o Stream of Commerce “Plus” – must be some activity directed at the state such
as advertising or sending product before a contact exist
o Pure Stream of Commerce – If part is incorporated into a final product than
contact is established
o Middle Ground – Consider volume, sales, hazardousness of the product

Gray v. American Radiator & Standard Sanitary Corp. (1961)

Facts: Π bought water hear from ∆ in Illinois which then exploded and injured π. Titan
company, incorporated in PA which manufactured the valve (in Ohio) that caused explosion was
also named as a ∆. Titan states it does no business in Illinois, has no agent physically present,
and sells the valves to American Radiator outside of the state. π files tortious claim in Illinois
against both companies. American Radiator files claim against Titan Company.
Issue: Whether lacking an agent within forum state creates gap of personal jurisdiction?
ROL: IL long arm statute: The place of a wrong is where the last event takes place which is
necessary to render the actor liable.
R.ROL: Contact with forum state is relaxed to allow for test to see if forum state has a vested
interest in case. (NOT TESTED BY SCOTUS)
Reasoning: The court reasons doing a given volume of business is not the only way in which a
non-resident can form the required connection with the forum state. It is sufficient if the act or
transaction itself has a substantial connection with the State of the forum. In its application the
question asked is whether the ∆ engaged in some act or conduct by which he has invoked benefit
and protections of the law of the forum.

McIntyre Machinery v. Nicastro

8
 HAFIZ SPRING 2017

Facts: McIntyre a British company sold shears to an independent distributor in Ohio who then
sold them to a company in New Jersey which Nicastro worked for. He lost 4 fingers and sued
McIntyre in NJ state court.
Holding: SCOTUS said McIntyre did not direct any sales to the forum thus no PJ.
Ginsburg's dissent: Broad stream of commerce doctrine; When a manufacturer seeks to sell its
product in several states it is reasonable to subject it to suit in any of those states.

Three approaches for arise out of (see pg. 230):

1. A claim arises out of the ∆ in state contacts only if the ∆'s forum contact provides
evidence of one or more elements of the underlying claim. (Burger King)
2. "But for" test. A claim arises out of a contact if the claim would not have arisen but for
the ∆ contact with the state. (Gray)
3. Neither test should apply and that a court should assess the relationship between the
contact and the claim under a more flexible standard and decide whether the claim is
sufficiently relating to the contact. (McIntyre – Ginsburg Dissent)

LONG ARM STATUTES

 To establish PJ over non-residents, must conduct two-part analysis
1. Long arm statute
 A court's authority to exercise personal jurisdiction is usually granted in
long arm statutes.
 Most states have enumerated act long arm statute, containing a list of
common in-state contacts that give rise to personal jurisdiction in the
forum.
 Long arm statute not necessary for those served personally within the state
(tag jurisdiction) See Burnham.
2. Permissible under Constitution
 The Due Process Clause is only a limit on a court's power, not an
authorization to exercise that power.
EXAMPLE: Ohio PJ Long Arm Statute:
 Transact business in the state
 Contracting supply services
 Causing tortious injury in the state
 Causing injury to any person by breach of warranty
 Causing tortious injury in the state to any person by act outside the state committed w/
the purpose of injuring persons.
 Ohio has passed statute allowing it to assert PJ for any business registered in the state and
forcing an agent and address to be listed to receive process.
 
Specialized long arm provisions specify a narrow area of cases where PJ is to be conferred. (non-
resident motorists; business)
 Hess v. Palo ski: Gave MA, PJ over non-resident motorist who cause injury; the
Secretary of State would receive the notice of process on behalf of the motorist.
 By using the road one has availed himself to the court if tortious injury occurs;
fairness argument. Why should π suffer to bring case when aggrieved.
 

9
 HAFIZ SPRING 2017

Federal Long Arm Statute: PJ exists over a ∆ who is subject to the jurisdiction of a court of
general jurisdiction in the state where the district court is located. (Can only exercise personal
jurisdiction over a ∆ only if the courts of the state in which that federal court sits could do so)
 Fairness under public policy
 Limits forum shopping
 Statute can authorize broader PJ (i.e. bankruptcy cases)
 Bulge Rule in joinder cases: a ∆ is subject to PJ in federal court as long as the ∆ is served
w/n 100 mi of the courthouse.
 
Notice & Service of Process
 The court must assert jurisdiction over a party by an order to appear and defend the
action; ∆ can waive right if service is improper
 Service of process fulfills two functions:
1. Formally asserts the courts authority over the ∆
2. Informs ∆ of the case so ∆ can prepare a defense
 Constitution prohibits the gov't from taking a person's life, liberty, or property w/o due
process of law

Mullane v. Central Hanover Bank & Trust (1950)

Facts: ∆ established a common trust fund for easier administration. Central Hanover petitioned
the court for settlement of its first account as trustee. Beneficiaries were given notice by
publication in a local newspaper in compliance with the minimum requirements of New York
banking law. The court appointed Mullane as special guardian of beneficiaries who had not
appeared, and he objected that the notice was inadequate to provide due process..
Issue: Whether publication in a local newspaper is sufficient notice of an account settlement to
beneficiaries?
R.ROL: Notice must be reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to object.
Reasoning: The Due Process Clause requires that deprivation of life, liberty, or property by
adjudication be preceded by notice and opportunity for hearing. Notice by publication does not
satisfy due process where the beneficiaries’ addresses and interests are known to the trustee.
There is no reason why the trustee should be permitted to dispense with a serious effort to inform
these parties personally. Because the New York banking law permits notice by publication even
to parties whose addresses and interests are known to the trustee, it is incompatible with the
Fourteenth Amendment’s due process provision.
 Greene v. Lindsey (1982): SCOTUS held posting notice of eviction on a door when no
one was home violated due process; party could have dropped a second copy in the mail.
 Jones v. Flowers (2006): SCOTUS held letter sent certified mail with publication was
not enough due process if the letter was returned and the collector did not do more to
affect notice.
Serving natural persons (four methods under 4e):
1. Can leave summons and complaint (if the ∆ is a person) at the ∆'s dwelling house
with a person of suitable age FRCP 4(e)(2)(b)
2. Deliver the papers to ∆ personally
3. Deliver to an agent ∆ authorized to receive process
4. Follow local/state rules for service of process

10
 HAFIZ SPRING 2017

5. NY has heightened service for divorce

 Serving Corporations (under 4h):
1. Deliver to an officer, managing agent
2. Deliver papers to an agent authorized by law to receive service of process
3. Serving under state rules for serving corporations
 Service on the ∆ must be both:
o Constitutionally sufficient
o Authorized by a statute or a rule of the court.
 
 FRCP Rule 4 requires service to:
o Include summons and complaint
o Served by someone at least 18 who is not a party (i.e. lawyer, sheriff, process
server)
o Complaint and summons are served after the complaint is filed
o Case is dismissed if service not made within 120 days (court may grant extension)
Venue
 In a jurisdiction with multiple courts, one must decide which court can hear the case;
Venue is waivable
 Checklist: Do all ∆ live in the same state?

Each federal district is a distinct venue that covers a specific geographic area,
 Exist to ensure that a case is litigated in a court that is conveniently located and has some
connection to the lawsuit or to one or both of the parties; Considers ∆, witnesses, and
overall efficiency
 Venue is not constitutionally compelled or exclusively tied to ∆ interests
 Venue statutes often require an examination of the:
o Π o Court's connection to the case
o Witnesses
 
28 USC § 1391(b) A civil action may be brought in:
(1) a judicial district in which any ∆ resides, if all ∆ are residents of the state in which the
district is located
(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, or
(3) if there is no district in which any action may otherwise be brought, any judicial
district in which any ∆ is subject to the court's PJ
Definitions:
 Resident (individual): shall be deemed to reside in the judicial district in which that
person is domiciled (same as diversity jurisdiction domicile test)
 Resident (corporations): an entity w/ the capacity to sue or be sued whether or not
incorporated shall be deemed to reside in any judicial district in which such ∆ is subject
to the court's PJ. If as a π only in the judicial district in which it maintains its principal
place of business
o If multiple districts in which a ∆ is a corp. that is subject to PJ at the time an
action is commenced, such corp. shall be deemed to reside in any district in that
state which its contacts would be sufficient to subject it to PJ

11
 HAFIZ SPRING 2017

Special Venue Statues: Allows certain types of cases to be brought in a specific type of Court
 Patent infringement can be brought in any district ∆ resides
 Removal statutes remove cases to the fed court that overlaps the current state court
adjudicating the matter
Two types of venue-related motions
1. ∆ makes a motion that asserts that the case was filed in an improper venue
a. If it has merit 28 USC §1406 a judge can dismiss the case or transfer it to a proper
fed venue
i. For the interest of justice, the judge can transfer to a more convenient
federal district
1. Will save the π time, expense, toll the statute of limitations
2. ∆ can make a motion that asserts although the venue is proper it is still inconvenient
a. 28 USC §1404(a) for the convenience of parties and witnesses in the interest of
justice, a court may transfer a civil action to any other district or division to which all
parties have consented (these factors are used if ∆ opposes)
i. Must assess the state's long arm/or principal place of business; venue to a
more convenient forum is only proper when the case could have been filed there
(i.e. was there PJ for that court)
2. Courts have retained the common law authority to dismiss cases for inconvenient forum
(forum non conveniens dismissal)
a. If a forum selection clause applies and the suit is filed in a proper venue; ∆ can
move to transfer to proper federal court; if it is a state court must move for dismissal
under forum non conveniens

A judge can only transfer a case in the same court system (i.e. NY supreme to another NY
Supreme)
 A state court may not transfer/remove a case to a federal court but a federal court can
remand to a state court if removal was improper
o Must file a notice of removal and the fed court decided whether to take the case
  Cases filed in the wrong venue Cases filed in the correct venue
Motion to Transfer 28 USC §1406 28 USC §1404
Motion To Dismiss 28 USC §1406 and Fed Rule 12(b)(3) Forum non conveniens

MacMunn v. Eli Lily Co. (2008)

Facts: MacMunn claims that she suffered uterine and cervical deformities, as a result of
exposure to DES. MacMunn’s mother is a Mass. resident and resided there in 1962 when
pregnant with MacMunn. All witnesses and evidence are in Mass. In 2007, MacMunn and her
husband sued Eli Lilly & Co. for negligence, seeking compensatory and punitive damages of
$6M. Eli Lilly removed the case to federal court in DC under diversity jurisdiction. Before
substantial discovery had taken place, Eli moved to transfer the case from to D. of Mass.
Issue: Whether a plaintiff has brought an action before a proper venue, may the court
nevertheless transfer the case to another venue over the plaintiff’s objections?

12
 HAFIZ SPRING 2017

R.ROL: Under 28 U.S.C. § 1404(a), a federal court has discretion to transfer a civil action to
any district where the case could have originally been filed for the convenience of parties and
witnesses, in the interest of justice.
Reasoning: This requires a “case-by-case consideration of convenience and fairness.” There is a
“strong presumption in favor of the plaintiffs’ choice of forum.” Thus, the defendant must
satisfy a two-part test: (1) the case could have originally been filed in the proposed district,
and (2) the interests of convenience and justice require transfer. The second part of the test
requires a balancing of private and public concerns. Private-interest factors the court may
properly consider include: (1) giving effect to the plaintiff’s choice of venue, (2) the
defendant’s preferred venue, (3) where the cause of action arose, (4) which forum would be
most convenient to the parties, (5) which forum would be most convenient to witnesses, and
(6) the availability of evidence. Public-interest factors the court must weigh include: (1) the
proposed district’s familiarity with the controlling law, (2) the relative crowding of both
courts’ dockets, and (3) the local interest in deciding the case. In this case, venue would be
proper in Mass. The parties do not dispute that the case could have originally been filed there.
The private interests weigh in favor of transfer. The plaintiffs, and the physical evidence are all
located in Mass. D.C. has very little connection to the case. The private factors weigh in favor of
transfer. The public-interest factors also weigh in favor of transfer. Mass. has an interest in trying
the claims of its citizens and is capable of handling the case. Also, D.C. choice of laws rules
would most likely find Massachusetts’ law controlling.

Pleadings
COMPLAINT
Complaint contains:
 Factual assertions (allegations)
o Supports jurisdiction (subject matter)
o Supports legal claims in civil lawsuit
 Gives notice of the nature of the claim or defense
 Facts
 Narrows issues for litigation
 Help the court throw out bogus claims w/o burden of trial
o Demands relief
 FRCP Rule 8 (Conley): a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the π can prove facts
Heightened Pleadings
 Alleging fraud/mistake can be defamatory so it requires heightened pleading
o Must be specific and assert all material facts establishing a π's right to recovery
 Reasons for heightened pleadings:
o Normal pleading does not give fair and sufficient notice
o For gov't ∆s might help flush out the facts pertinent to immunity defense; save
money which is taxpayer $
 Rule 9(g) requires that special damages be specifically stated
o Special are those that would not be normally anticipated (i.e. a miscarriage;
heightened blood pressure)

13
 HAFIZ SPRING 2017

Leatherman v. Tarrant County (1993)

Facts: Leatherman brought suit against Tarrant County, alleging violations of her civil rights
during the execution of a search warrant in her home, in violation of § 1983 and the 4th
Amendment. Leatherman alleged that the officers’ conduct, which included shooting and killing
Leatherman’s two dogs, was evidence that the officers were improperly trained, thus incurring
municipal liability (respondeat superior). The USDC – NDTX dismissed her complaint, finding
that the pleading did not meet the heightened standard required by Fifth Cir. case law.
Issue: Whether a trial court require a heightened pleading standard, above and beyond the
requirements of Rule 8(a)(2)?
R.ROL: FRCP require only that the complaint contain short and plain statement of the π’s claim,
and a court may not require a heightened standard for pleadings alleging certain causes of action.
Reasoning: A π is not required to set out the detailed facts supporting his allegations, but rather
simply enough info to put the ∆ on notice of the particular claims against him. ∆ argument is not
convincing because the municipality is not immune from suit, just from liability. The case law
setting out the heightened pleading standard, however, clearly states that a π alleging a §1983
violation must plead additional facts, in detail and with particularity. If the drafters of the Federal
Rules intended to impose a heightened standard for § 1983 cases, they would have done so, as
they did with several causes of action listed in Rule 9(b). Because they did not, the Fifth Circuit
may not require a heightened standard for § 1983 pleadings.

PLAUSIBLE PLEADINGS (Modern Requirement)

Ashcroft v. Iqbal (2009)
Facts: Iqbal was arrested and detained during the investigation of the September 11, attacks.
Iqbal claimed that the conditions of the custody violated the First and Fifth Amendments and
sued Attorney General John Ashcroft, FBI Director Robert Mueller. The complaint accused
Ashcroft of being the “principal architect” and Mueller of being “instrumental” in the
implementation of a discriminatory policy of confining individuals in harsh conditions based
solely on their “religion, race, and/or national origin.” Ashcroft and Mueller claimed qualified
immunity and moved to dismiss Iqbal’s complaint for failure to state a claim.
Issue: Whether under Twombly, a complaint will survive a motion to dismiss if the facts alleged
are conclusory in nature?
R.ROL: Under Twombly, a complaint will only survive a motion to dismiss if it alleges
nonconclusory facts that state a claim to relief that is plausible on its face.
Reasoning: Facial plausibility means that the facts alleged permit a “reasonable inference” that
the defendant is, in fact, liable. The plausibility determination in any particular case is left to the
reasoned and experienced judgment of the trial court. Although the facts in the complaint must
be taken as true, the court is not required to afford legal conclusions the same deference. In this
case, the allegations regarding Ashcroft and Mueller’s knowledge or intent are not “unrealistic or
nonsensical,” but are conclusory and need not be accepted as true. Although the complaint may
state a claim against other defendants, the charges against Ashcroft and Mueller do not plausibly
indicate anything more than a policy of keeping individuals suspected of terrorism under tight
security pending a full investigation.
Dissent: Nonconclusory allegations should be accepted as true unless completely unrealistic.
Nevertheless, Iqbal’s pleadings were not conclusory.

14
 HAFIZ SPRING 2017

Bell Atlantic Corp v. Twombly: court held the plain statement must possess enough heft to
show that the pleader is entitled to relief; enough facts to state a claim to relief that is plausible
on its face
Twombly/Iqbal test:
1st Prong: Are the allegations well pleaded?
 Court must still accept as true the factual allegations (well -pleaded - supply facts to
establish elements)
2nd Prong: Are the well-pleaded allegations plausible?
 Court must determine if allegations plausibly give rise to an entitlement to relief
 Is there an innocent explanation?
Must provide facts to nudge claim from conceivable to plausible
 
Critiques of plausible pleadings:
1. Cannot properly uncover state of mind w/o discovery thus denying access to court to π
who cannot afford to engage in pre-filing investigation or information asymmetry
2. Judges based on experience can be biased based on what they believe to be plausible
3. Judgments come close to deciding facts that should be left to a jury
4. Still new area, courts are still interpreting
 
Defenses of plausible pleadings:
1. Saves discovery expense creating unfair settlement pressure

RESPONSES TO A COMPLAINT
 Federal Court summons require a ∆ to move or answer within 21 days after service of the
summons.
o An "appearance" (filing stating name of attorney) alone is not enough to surpass a
default judgment
Default Judgment
 Distinguish the default
 Entry of default
o Actual notation in the docket; written indication ∆ is in default
o Facts are taken as true
 Judgment (typically final)
o Defaulting party can move for relief under 60(b)which imposes time limits on
certain matters
o Courts will set aside judgments as void if it is shown service was never made
o Court ensures service was adequately attempted since case is not decided on
merits
 If ∆ some way appears, he/she is entitled to at least 7 days written notice of a hearing or
entering of a default judgment.
 Π is not entitled to default judgment – court has discretion. Considers factors:
o Prejudice to π o $ at stake
o Merit of claim o Possibility of factual dispute
o Sufficiency of complaint o Policy favoring decisions on
the merits

15
 HAFIZ SPRING 2017

Virginia Records America, Inc. v. Lacey (2007)

Facts: Virgin claims Lacey downloaded and distributed copyrighted music owned by the π. The
π served process on October 26, 2006, and a copy of the summons and complaint were left at
Lacey’s home with Lacey’s son. Lacey did not respond to the complaint or appear before the
court. The plaintiffs moved the court to enter a default judgment, but did not send notice of the
motion to Lacey. On December 13, 2006, the court entered a default judgment against Lacey.
The court also mailed a copy of the Entry of Default to Lacey, but Lacey again failed to respond.
After thirty days had passed, the plaintiffs moved for entry of the default judgment.
Issue: Whether under the FRCP, is entry of a default judgment proper against a party who has
failed to appear or defend a lawsuit for three months after valid service?
R.ROL: An entry of a default judgment is proper where a defendant has failed to appear or
defend a lawsuit after proper service.
Reasoning: Rule 55(a) of FRCP permits entry of default judgment against a party who fails to
appear or defend a lawsuit. As a matter of public policy, courts strongly prefer to hear and decide
a case on the merits rather than entering a default judgment. There must be strict compliance
with the legal prerequisites establishing the court’s power to render the judgment. Nevertheless,
default judgment may be appropriate when a party has failed to appear or defend a lawsuit or
otherwise comply with the rules and orders of the court. The entry of a default judgment acts as
an admission on the part of the defendant of the facts pleaded in the complaint. The plaintiff
must state a claim on which relief can be granted in order for the plaintiff to recover. After
determining that a default judgment is proper, the court must then decide the proper type and
amount of damages. In this case, the plaintiffs have set forth sufficient facts in the complaint to
entitle them to relief for eight acts of copyright infringement. Thus, Lacey is deemed to have
admitted the facts in the complaint, and those facts are sufficient to hold Lacey liable for the
copyright infringement.
Nuggets: A default is not an “absolute confession by the ∆ of his liability and of the plaintiffs
right to recover,” but instead merely “an admission of the facts cited in the Complaint.” Sum
Certain makes it easier to award damages.

RULE 12 B MOTIONS
 Facts are taken as true; All inferences are taken in the favor of non-moving party
 (5) Insufficient service of process  (2) Lack of PJ
 (6) failure to state a claim (only  (3) Improper Venue
consider complaint)  (4) Insufficient process
 (1) Lack of SMJ  (7) Failure to join a party
 12(f) strike record**  12(e) More definite statement

**Granted when the material could have no possible bearing on the subject of the litigation
Matos v. Nextran, Inc. (2009)
Facts: Matos was injured when the concrete truck he was driving overturned. Matos and his
wife, sued Nextran who allegedly manufactured and sold the truck. Matos’s complaint set forth
six claims. Rather than restate the facts in each claim, Matos incorporated them by reference in
subsequent sections of the complaint. Nextran filed a MTD for failure to state a claim upon
which relief can be granted under Rule 12(b)(6). Failing that, Nextran moved the court to strike
portions of the complaint under Rule 12(f) or demand a more definite statement from the π under
Rule 12(e).

16
 HAFIZ SPRING 2017

Issue: Whether a federal court must grant a defendant’s motion to dismiss for failure to state a
claim if the plaintiff has failed to allege an essential element of the claim in the complaint?
R.ROL: A defendant’s 12(b)(6) MTD will only be granted if, when all reasonable inferences are
drawn in favor of the π, the complaint does not state a claim upon which relief may be granted.
Reasoning: The court will draw “all reasonable inferences” in the π’s favor. The π must do more
than recite the elements of a claim or assert legal conclusions. Even where a π has failed to state
a claim, courts generally must permit the plaintiff to amend the complaint. Rule 12(f) of the
FRCP allows the court discretion to strike “an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Striking the pleadings is an extraordinary remedy, and courts
will refuse to do so unless there is no admissible evidence that could possibly prove the claim.
Rule 12(e) of the FRCP permits a party to request a more definite statement when a pleading is
“so vague or ambiguous that the party cannot reasonably prepare a response.” With respect to the
negligence claim, although the plaintiffs did not expressly state that the defendants owed a duty,
the complaint alleges sufficient facts to draw an inference that the duty was owed. The motion to
dismiss the negligence claim is denied. A complaint does not have to be perfect (literary
gem), so long as it makes a statement of the claim and gives the defendant notice of the
charges against him.
Nuggets: Can an inference be drawn to support claims so there is not a need to amend?

 This can be a strong tactical advantage: filing an answer may require the D to admit
damaging allegations in the complaint or undertake substantial factual investigation.

THE RULE 12 WAIVER TRAP

Rule 12 permits a ∆ to assert several different defenses and objections at the same time, however
must bring them together in a single preanswer motion. Joinder is mandatory and imposes waiver
if left out.
 ∆ should be aware at the onset if they can file these motions
 Can always file a motion for lack of subject matter jurisdiction because based on statute
 If π amends complaint and adds new allegations ∆ can file a 2nd Rule 12 motion of
failure to state a claim or for more definite statement NOT for venue/PJ/motion to strike

Hunter v. Serv-Tech (2009)

Facts: Hunter served process on Offshore, and Offshore filed a MTD for defective service. The
motion contained an “express reservation” of Offshore’s right to challenge personal jurisdiction,
but did not raise an objection. Hunter amended his complaint on June 10, 2008. In its answer on
September 11, 2008, Offshore objected to PJ as an affirmative defense. Offshore’s initial MTD
was denied, because Offshore admitted that Hunter had properly served process. Offshore then
filed a second MTD, arguing that Offshore did not have sufficient contacts with the jurisdiction
to justify the court’s PJ. Hunter asserted that Offshore had waived any objection to PJ by failing
to include it in the original MTD.
Issue: Whether a defendant may object MTD?
R.ROL: Under Rule 12(h)(1), a party must assert any objection to PJ, venue, or service of
process in its first pre-answer MTD or responsive pleading or the objection is waived.
Reasoning: Due process requires that a court have PJ over a party before it exerts its authority
over her. Nevertheless, this is a personal right that may be waived. Rule 12(h)(1) makes clear
that a party must raise objections to personal jurisdiction, venue, or service of process in its first

17
 HAFIZ SPRING 2017

filing with the court—either a pre-trial motion or a responsive pleading—or that objection is
waived. A party that chooses to make a Rule 12 motion to dismiss must consolidate all
objections to personal jurisdiction, service, and venue into a single motion. The purpose of these
restrictions is to avoid piecemeal litigation and undue delay. In this case, Offshore claims that the
“express reservation” contained in its original motion to dismiss preserved the objection. But
nothing in the rules suggests that a party may “reserve” one of these defenses. Rather, the rules
require that the party actually raise the objection.

ANSWER
 Answer is a pleading that admits or denies the factual allegations in the complaint, sets
out defenses and counterclaims, if any
If a 12(b)(6) motion fails ∆ has 14 days to file an answer; however, courts can take months to
decide a motion. Can assert 4 kinds of matter by answer:
1. "Leftover" 12(b) defenses that have yet to be waived.
2. Admit/deny all the factual allegations of the complaint. Rule 8(b)
a. If don't know can say so “I lack knowledge to answer” – Must be good faith
2. Does not need to address statements of law
3. An affirmative defense - provides excuses to liability on the basis of facts outside of the
complaint even if π can prove all elements
a. Must set forth a short and plain statement of the basis for the defense – some
courts require Twiqbal analysis
2. Counterclaims and crossclaims (does not need to serve new process)

Reis Robotics v. Concept Industries (2006)

Facts: Reis filed a diversity suit against Concept Industries, Inc. for breach of contract. In its
answer, Concept raised six affirmative defenses and seven counterclaims. Among its affirmative
defenses, Concept asserted that “Reis breached the contract . . . and that contract may be void for
fraud and/or failure of consideration.” Concept provided numerous factual allegations in its
counterclaim, but failed to incorporate those allegations into its affirmative defenses. In addition,
Concept qualified a number of the denials in its answer with language to the effect that the
contract was procured by fraud and invalid. Reis filed a motion to strike part of the answer, strike
and dismiss the affirmative defenses, and dismiss the counterclaims.
Issue: Whether, under the FRCP, affirmative defenses and portions of an answer be stricken
from a defendant’s pleading?
R.ROL: Under the Rule 12(f), a district court has discretion to strike an insufficient defense or
any redundant, immaterial, impertinent or scandalous matter.
Reasoning: Courts are reluctant to grant such 12(f) motions due to the potential for abuse and
delay. Motions to strike may be granted if doing so would streamline the pleadings and allow the
litigation to proceed more efficiently. An affirmative defense is both an admission of the
allegations in the complaint and a denial of liability. Affirmative defenses must be raised in
short, plain terms sufficient to allow at least an inference of all necessary elements of the
defense. An affirmative defense must satisfy a three-part test to survive a motion to strike:
(1) the issue must be properly raised as an affirmative defense, (2) the defense must satisfy
the pleading requirements of the FRCP, and (3) the defense must survive the test applied to
claims subject to a Rule 12(b)(6). The court may grant the motion if it is satisfied that no issues
of fact or law remain and there is no possibility the defense could be proven. Rule 8 requires a

18
 HAFIZ SPRING 2017

party in a responsive pleading to admit, deny, or indicate a lack of knowledge or information

about each allegation. The qualifying language is improper and confuses matters.

Ingraham v. United States (1987)

Facts: Π sued the U.S. under the Federal Torts Claim Act and he was awarded $1,264,000. Both
Igraham’s and Bonds’ procedures were performed subsequent to the enactment of the
Malpractice Act, which set cap on medical malpractice damages awards to $500,000; however,
the Government did not raise the Act as an affirmative defense, nor did it raise the existence of
the Act at all until after the damages had been awarded in the case.
Issue: Must an affirmative defense be pleaded before a judgment is entered?
R.ROL:  Under Rule 8(C ), affirmative defenses must be pleaded in a timely fashion, or else the
defenses are waived.
Reasoning: If an affirmative defense is not pleaded in a timely fashion, that defense is waived,
and the defendant may not contest liability based on that defense. FRCP 8(C ) requires that any
matter constituting avoidance or an affirmative defense must be timely and affirmatively
pleaded, or else that defense is waived. Rule 8(C ) lists 19 affirmative defenses and includes a
residual clause that encompasses defenses not included in the list. To determine whether a
defense falls under the residual clause, the defendant must determine: (1) whether the
matter constitutes a necessary element in the plaintiff’s cause of action; (2) what party has
better access to the relevant evidence; (3) the policy considerations involved. Requiring
parties to plead affirmative defenses avoids unnecessary and unfair surprise. In this case, the
Government is attempting to avoid liability by invoking the Malpractice Act subsequent to trial.
The limitation on damages imposed by the Malpractice Act is an affirmative defense that should
be pleaded in a timely fashion as required by Rule 8(C ).

AMENDING PLEADINGS
(Rule 15): Procedure should be flexible enough to allow parties to litigate the entire dispute
between them, as long as any changes or enlargement of the lawsuit do not prejudice the
opposing parties.
 After trial begin pleadings are more likely to prejudice opposing parties because less time
to prepare adequately.
 15(c ) addresses statute of limitations issue if it has run and if it can relate back (i.e.
backdated)
 A party can object during trial if info outside of pleadings are brought in
Rule 15(a) addresses two types of pre-trial amendments:
1. Amendments allowed as a matter of course
a. Does not need Court's permission
b. Can Amend original pleading once w/n 21 days of service of the original
pleading; if need to amend again requires leave
c. If responding pleading is req'd. a party may amend the original w/n 21 days after
responsive pleading is served
i. Responsive pleadings include an answer to a complaint, answer to a
counterclaim, co-defendant answer to a cross-claim, third party answer to a third
party complaint
ii. One can combat motion to dismiss/ more definite statement by amending
within the 21 days

19
 HAFIZ SPRING 2017

b. TEST: IF responsive pleading then 21 days from when it is served or 21 days

from response is served 
c. Party responding to amended pleading has the same right to answer as if it was an
original pleading
2. Amendments by leave of Court; over 21 days
a. Judge must consider several factors if other party opposes amendment:
i. Stage of the litigation
ii. Reason for the amendment
iii. Viability of the amended claim or defense
iv. Reason for not including the new allegations in the original pleading
v. Undue prejudice consists of prejudice to preparing to defend in collecting
and presenting evidence that flows from the lateness of the Amendment
b. Amendment after dismissal: If case is dismissed after MOD is granted, π has 21
days to amend complaint to cure deficiency
 
Beeck v. Aquaslide (1977)
Facts: Beeck sued Aquaslide ‘N’ Dive Corp. when he was injured on a water slide he alleged
Aquaslide had manufactured. Initially, Aquaslide conceded that it had manufactured the slide
because three insurance companies said so, but after the President subsequently inspected the
slide realized it had not and sought to amend complaint after SOL has passed.
Issue: Whether the court abused its discretion in allowing Aquaslide to amend its complaint and
ordering a trial on the issue of manufacture?
R.ROL: A party may amend his pleading only by leave of court or written consent of the
adverse party and leave shall be freely given when justice so requires.
Reasoning: A motion is generally granted to amend a pleading unless there is bad faith, undue
delay, or repeated failure to cure deficiencies, any of which could prejudice the other party. Here,
however, the court had found that there would be no prejudice to Beeck and that Aquaslide had
not been lacking in diligence in its investigation into whether it manufactured the slide. The court
did not abuse its discretion in granting the motion for leave to amend. Nor did the district court
abuse its discretion in ordering a trial on the issue of manufacture, as judicial economy is best
served by quickly resolving the narrow issue of whether Aquaslide was the manufacturer.

Hardin v. Manitowoc- Forsythe Corp. (1982)

Facts: Hardin employee of Combustion Engineering was injured at work. The jurisdiction
employed a comparative negligence framework for apportioning liability between plaintiffs and
joint tortfeasors, including any “phantom parties” who may have been at fault but were not party
to the suit. Before trial the court granted the defendants’ motion to consider the fault of
nonparties. The judge instructed the jury, over Hardin’s objection, to apportion the relative fault
of all parties and phantom parties. The jury found that Hardin had suffered damages of $150,000
and apportioned fault to Hardin for 20%, Forsythe for 0%, Columbus for 13.5%, Combustion for
45%, Engineering for 9%, and Lummus for 12.5%. As a result, Hardin was awarded $20,250
from Columbus.
Issue: Under the FRCP, may pleadings be amended during or after trial to include a new issue
raised by the parties?

20
 HAFIZ SPRING 2017

R.ROL: Under Rule 15(b), a court has discretion to amend the pleadings during or after trial to
include a new issue if the parties expressly or impliedly consented to litigating the issue or
amendment would not cause prejudice.
Reasoning: Rule 15 of the FRCP gives the court broad discretion to amend pleadings to reflect
issues raised at trial. The policy of Rule 15 is to encouraging judgment on the merits, rather than
on procedural requirements. In the tenth circuit, this amendment may occur at any time, even
after a final judgment, where the issue was raised and litigated at trial with the express or implied
consent of the parties. Consent is valid so long as both parties have a “fair opportunity to defend”
and are not denied the ability to put on additional evidence. Consent will be implied if the parties
had notice that an issue might be raised at trial and did not object under Rule 15(b) to proof
offered on the issue. Courts will conclude that a party consented if she produced evidence on the
issue. Courts may even allow amendment over a party’s objection, where doing so would not
result in prejudice, but the objecting party may be entitled to a continuance. A court’s finding
that a party consented to the trial of an issue not in the pleadings will only be reversed if there
was an abuse of discretion.
In this case, Hardin impliedly consented to trying the issue of Engineering’s fault. Hardin had
notice that the issue may be raised in the pretrial order and the defendants’ motion to consider
nonparties’ fault. Even though the issue of a nonparty’s fault is an affirmative defense, which
should be pleaded with particularity under FRCP Rule 8(c), Hardin had notice and a chance to
litigate. The court did not abuse its discretion. The court did abuse its discretion in permitting the
jury to consider Lummus’s fault. Evidence at trial relating to Lummus was tangential at best.
Hardin had no notice that the defendants intended to raise the issue of Lummus’s fault and was
not given an adequate chance to rebut the claim.

Summary Judgment
 If there are no material disputed facts then no need for trial. The judge can decide
conclusions of law.
 Evidence considered include affidavits,
 Have until 30 days after close of discovery to fill for SJ
 "If the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.
o Can produce evidence that negates non-movant’s claim
o Demonstrate absence of evidence to support essential element of nonmoving
party’s claim.
Questions of Law vs. Questions of Fact
Two different inquiries:
 Question of law determined by judge
 Question of fact determined by jury

Rule 11
 Rule 11 sets out both the standard for care and candor in pleading and the sanctions for
violations of the standard.
 A party must certify to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances:
o It is not being presented for any improper purpose (i.e. harass, delay or increase
the cost of litigation

21
 HAFIZ SPRING 2017

o Claims, defenses, and other legal contentions are warranted by existing law or
based upon extending/modifying/reversing existing or establishing new law
o Factual contentions have evidentiary support or will likely have support after
further investigation/discovery
o Denials of factual contentions are warranted on the evidence or if specifically so
identified are based on belief or a lack of info

Rule 11: Reasonableness Factors

 Time available for investigation (if attorney sits on case then does not apply)
 Complexity of factual/legal issues
 Control of available facts (i.e. ∆ had needed info or necessary pleading)
 The extent which lawyer relied on client for facts
 If case was received from another lawyer and level of reliance.
 Resources available to conduct an inquiry
 Extent which lawyer is on notice that further inquiry is necessary
 
Procedure for Rule 11 Sanctions
 Must file a Rule 11 Motion separately from other motions and must be served 21 days
before filed in court
o Gives the offender time to reconsider and withdraw or correct pleading
o A court may administer sanctions sua sponte
 Still need notice because of due process
 Similar to contempt of court
o Sanctions can be monetary or admonishment on public record
 Must be limited to serve deterrence
o Rule 11(c )(5)(a) prohibits monetary sanctions against a client
 Every pleading, motion, and other papers shall be signed by an attorney of record in
his/her individual name; An unsigned paper shall be stricken, unless immediately
remedied.

Hays v. Sony Corp. of America (1988)

Facts: Hays and MacDonald were teachers at a high school in Illinois. In 1982 the πs drafted a
manual to teach students to operate the school’s word processors. The manual contained no
copyright notice. In 1984, the school bought new word processors from Sony. The school
requested that Sony adapt it for use with the new word processors. Sony updated the manual.
Sony did not sell or distribute the manual to anyone else. The πs, through their attorney
Emmanuel F. Guyon, filed suit against Sony alleging that Sony had violated both common law
copyright law and statutory copyright law. In addition, the complaint asserted that Sony had
“made large profits by appropriating Plaintiff’s workbook.” Consequently, the complaint
contained demands for compensatory and punitive damages, injunctive relief, attorney’s fees and
other relief, as well as an accounting of Sony’s profits. Sony filed a motion to dismiss for failure
to state a claim. In addition, Sony filed a Rule 11 motion for sanctions. The district court granted
the motion and awarded Sony $14,895.46 in sanctions against the plaintiffs’ attorney.
Issue: May a plaintiff’s attorney be held liable for filing frivolous claims in federal court?
R.ROL: An attorney who fails to make a reasonable inquiry into whether the claims asserted
have a basis in law and fact may be sanctioned under FRCP Rule 11.

22
 HAFIZ SPRING 2017

Reasoning: Rule 11 requires an attorney or pro se litigant to make a reasonable inquiry into
whether the claims have a reasonable basis in law and fact. In assessing Rule 11 sanctions,
Courts must make “an objective determination of whether a sanctioned party’s conduct
was reasonable under the circumstances.” Failure to conduct a reasonable inquiry is
effectively negligence (the failure to exercise reasonable care). This is an objective, national
standard. No locality rule. Thus, the amount of inquiry that must be made for purposes of the rule
depends on the time available, the likelihood of finding more evidence, and the relative costs of
additional investigation. Rule 11 violations are analogous to legal malpractice, but the harm done
is to other parties to the litigation or the court, who may be faced with significant, avoidable
costs. Nevertheless, Guyon had an obligation to associate with a competent attorney or study the
relevant law to become competent. The common law of copyright was abolished in 1978 and
replaced by the federal copyright statute, thus all common law claims are frivolous. Similarly,
the demand for an accounting of Sony’s profits is frivolous, because Sony did not profit from the
manual. While willful infringement may result in statutory damages, there is no evidence that
Sony was even aware that the manual was copyrighted or, if it was, that the copyright did not
belong to the school.
Rationales: Sanctions are based upon what you know or should have known at the time of filing.
Once learn claims are frivolous must stop pursuing those claims; "A good heart will not replace
an empty head"; ignorance is no defense.
Nuggets: Rule 11 only applies to filings.

Joinder
Rule 18(a) allows a π to assert any claims one has against an opponent, whether related or
unrelated in a single suit:
 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
o Policy arguments
 Efficiency - parties are already in court and represented by council
 Encourage settlement
 Spend less money in litigation

 The more overlap in facts and issues the more likely court would allow joinder
Rule 42 (b) authorize the trial judge to order separate trials:
 For convenience, avoid prejudice, expedite/economize, court may order a separate trial of
one or more issues, claims, crossclaims, counterclaims, or third-party claims.
o District court judge retains control over the course of the litigation
 
Claim Preclusion (res judicata) generally bars a party who has sued a ∆ once on a set of facts
from doing so again under different applicable theory
 Prevents harassment of adversary
 Achieve efficiency and avoid inconsistent verdicts on the same facts

Rule 20 (a)(1) allows π to sue together if they:

1. assert claims that arise out of the same transaction/occurrence/series
2. If the claims involve any question of law or fact common to all π

23
 HAFIZ SPRING 2017

Rule 20 (a)(2) ∆ may be sued together if 1&2 above are met

 Optional not mandatory to have π join ∆; may have alternative reason why not to join
o If some parties are from the same state cannot sue in fed courts
o May prefer different courts, lawyers, or timing of some cases
 FRCP requires joinder of certain parties if a case cannot be fully adjudicated w/o
their participation
o Fraudulent Joinder - improper joinder to try to defeat jurisdiction
 Jurisdiction is important to joinder
28 USC 1367: Supplemental Jurisdiction Statute - provides that if a federal court has SMJ
over a case, it may also hear other claims in the action that arise out of the same nucleus of fact.
 When determining whether claims arise from the same transaction or occurrence:
o Are the issues of fact and law the same?
o Would res judicata bar a subsequent suit on the claim absent compulsory
counterclaim rule?
o Will the evidence be substantially the same?
o Is there a logical relationship between the claim and the counterclaim?

COUNTERCLAIMS & CROSSCLAIMS

Analysis of Counterclaims & Crossclaims

 Do I have any possible disputes with any of the parties in the case?
 For Counterclaims - Is it mandatory or permissive?
 For Crossclaims - Do I want to bring this case as a matter of strategy or in a separate
lawsuit?

Counterclaim: a claim for relief by a ∆ against a π

Crossclaim: a claim against another on your side of the original case (same side of v.)
 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 counterclaim. (Rule 13 (g) (Unlike counterclaim crossclaim must be
regarding the same claim)

Rule 13(a)(1)(A) a counterclaim is compulsory (if arises out of the transaction or occurrence
that is the subject matter of the opposing party's claim)
 Requires joinder if it does not require adding another party over whom the court cannot
acquire jurisdiction
 Exceptions where joinder is not compulsory
o When the action was commenced, the claim was subject to a different pending
action
o Opposing party sued via attachment and PJ in the claim would be improper
 Analysis of Compulsory Counterclaims
1. What possible claims do I have against opposing party?
2. Does opposing party have in rem or PJ over me?
 If in rem have I asserted any counterclaims? If no, then no compulsion.
3. For each claim does it arise out of the transaction at issue?

24
 HAFIZ SPRING 2017

King v. Blanton (2012)

Facts: Blanton and King were in a car accident. Blanton sued King for negligence in state court.
King’s insurance company provided an attorney for her. The parties settled the following May.
King then sued Blanton for negligence over the same wreck, claiming that it was actually
Blanton who ran the red light and caused the accident. Blanton moved to dismiss on the ground
that King’s claim was a compulsory counterclaim that had to be brought during original lawsuit.
Issue: Will a party’s failure to assert a compulsory counterclaim prevent that party from
asserting the claim in a subsequent lawsuit?
R.ROL: Failure to assert a compulsory counterclaim constitutes waiver, and the party will be
estopped from later asserting the claim if she was aware of the claim and had an opportunity to
file before settlement.
Reasoning: A counterclaim is compulsory if it “arises out of the same transaction or occurrence”
as the original claim. The purpose of this rule is to promote judicial efficiency by avoiding
redundant litigation. A counterclaim likely arises out of the same transaction or occurrence if:
(1) both claims involve common issues of fact and law, (2) the same evidence would be offered
as proof, and (3) there is a “logical relationship” between the claims and requested remedies.
Some courts hold failure to bring a compulsory counterclaim is an absolute bar to subsequent
litigation. The better view, particularly when the first lawsuit was settled, is that failure to bring a
compulsory counterclaim operates as estoppel or waiver. The court deciding whether a claim is
estopped may consider whether the party had a reasonable opportunity to file before the
settlement and present evidence on estoppel before dismissal. Here, there is no doubt King’s
claim arises out of the same transaction or occurrence as Blanton’s. Both claims revolve around
who was at fault the same car accident. King’s claim was compulsory under Rule 13(a).
 
Discovery
 Discovery is the gathering of facts and evidence under the FRCP to help flesh out
generally pleaded claims and defenses and to test them by SMJ, settlement options, and
trial.
 Each party bears their own cost of discovery
 Must be proportional
 Court supervises discovery

SCOPE OF DISCOVERY:
Rule 26(b)(1): Authorizes discovery of any "nonprivileged matter" that is relevant to any party's
claim or defense even if it would be inadmissible at trial as long as it "appears reasonably
calculated to lead to the discovery of admissible evidence"
 Sweeping, creating a presumption of discoverability
 Can use it to obtain

o Documents

o Electronic info (i.e. e-mails)

o Access to property

o Pictures

25
 HAFIZ SPRING 2017

o Medical records

o Inspection

o Testimony

 Privileged communication is that usually made in confidence during the course and in
furtherance of a relationship which include

o Lawyer/Client

o Doctor/Patient

o Priest/Penitent

o These are typically communications that are highly probative as well as

trustworthy because of a nature; socially encouraged relationships that are
protected by the 5th Amendment

 Privilege protects against admission at trial and discovery

 Relevant to any party's claim or defense

o Material sought must not be remote from the cause of action

o Balance test. Does the burden of such discovery outweigh the probative value?

 This rule does not limit discovery to admissible evidence. Can be used to form a link or
chain that could lead to admissible discovery

DISCOVERY TOOLS
Self-executing discovery (mandatory)
 Requires initial disclosures of the core info in a lawsuit
 Additional disclosures on the eve of trial
 Under Rule 26(a), without awaiting formal discovery requests parties are required to
exchange information that they may use to support their claims and defenses (including
name, address, and telephone number of fact witnesses, copies of documents, materials
underlying computation of damages
o Intended to arm the parties as early as possible w/ basic info they need to prepare
for trial
o Make informed decisions about settlement
 
 Parties may take discretionary discovery using depositions (oral or written examinations
of live witnesses under oath before a court reporter)
 Interrogatories (written questions that must be answered in writing under oath)
 Document Production Requests

26
 HAFIZ SPRING 2017

 Physical & Mental examinations

 Only available if party’s mental or physical condition is in controversy in case
 Must demonstrate more than mere relevance
 Requests for admissions
 Purpose is to establish facts about which there is no real dispute
 Must respond or deemed admitted
 Can admit, deny, object, or tell why can’t answer
 Duty to Supplement
 A party must supplement its responses if it learns that disclosures/responses are
incomplete or incorrect
 Factors to consider whether a party has breached duty to supplement:
 Was there a prior response
 Whether the response became incomplete/incorrect
 Whether the party was aware
 Whether the corrective info was otherwise made known to the other party
through discovery process or writing (no duty to supplement)
DISCOVERY SEQUENCING AND INTERROGATORIES
 Deposition of key witnesses should come last because you have gathered evidence
 Limited to 7 hours
 Limited to 10 depos per side
1. Use interrogatories to locate and identify evidence

2. Use requests for doc. Production to collect the identified written evidence or
electronically stored information

3. Armed with that evidence use depositions to collect spontaneous evidence from witnesses
and parties

Interrogatories are considered continuing, requiring a supplemental answer

 Limited to 25 questions
 Responding party has 30 days to respond
 Made under oath (lawyer must also sign certifying that she/he has made a reasonable
inquiry before submitting)
 Relatively inexpensive compared to depositions
 Less effective because typically drafted by lawyer who can shield info
 As a corporation under Rule 33(b)(1)(B) must furnish such info as is available to the
party" (should be able to get access to info even if years ago)
 Rule 33(a)(2) interrogatory is not objectionable just because it asks for "an opinion or
contention that relates to fact or the application of law to fact"
o Contentious interrogatories are needed to ascertain how a party will contend the
law applies at trial
o Contentious interrogatories can be delayed until discovery is completed
o Interrogatory that calls for pure legal conclusion is objectionable

Requests for Production of Documents

27
 HAFIZ SPRING 2017

 Must ask w/ "reasonable particularity" the document or category of documents or things

you seek and then serve the request on a party
 Must comply or object w/n 30 days

 If documents are not turned over can "motion to compel discovery"

 Only by making an expressly objection does a party be afforded court the chance to
assess the objection

E-DISCOVERY

Zubulake v. UBS Warburg LLC (2003)

Facts: During discovery, Zubulake requested all documents in which UBS employees discussed
Zubulake, including “electronic or computerized data compilations.” UBS objected, but
produced 100 pages of emails. The parties agreed in a conference with a magistrate that UBS
would produce “responsive emails if…possible” for individuals named by Zubulake, but UBS
later asserted that its initial production fulfilled the agreement. UBS did not search backup tapes
and claimed that the cost to do so would be about $175,000. Zubulake objected and produced
450 pages of emails which included a ‘smoking gun’. UBS employee testified that emails
covered by the request were copied periodically and stored on 94 backup tapes, which are costly
and time-consuming to restore. Zubulake seeks production of all remaining emails at UBS’s
expense, and UBS argues that discovery is complete or that the costs should be shifted to
Zubulake under Rule 26(c) of the (FRCP).
Issues: Under the FRCP rules of discovery, must the cost of producing electronic data be shifted
to the requesting party?
ROL: Presumption is that responding party must bear the expense of complying with discovery
requests.
R.ROL: Under the FRCP, the cost of producing electronic data should only be shifted to the
requesting party if the discovery poses an “undue burden or expense.” Undue when it outweighs
the likely benefit.
Reasoning: FRCP Rule 34 allows discovery of “any document,” whether in paper or electronic
form. There is no exception for information that has been deleted or archived. The costs of
production generally fall on the party from whom discovery is sought, but FRCP Rule 26(c)
permits the court to shift the cost to the requesting party to prevent “undue burden and expense”
to the other party. Shifting costs is not appropriate in every case involving electronic discovery,
because doing so may inhibit discovery by private individuals.
A key inquiry is whether a document is accessible or inaccessible. Information that is online,
near-line, or offline in storage is considered accessible; information on backup tapes or deleted
information is classified as inaccessible.
Thus, the following seven-factor test is the proper test for assessing whether to shift electronic
discovery costs: (1) whether “the request is specifically tailored to discover relevant
information,” (2) whether the information can be obtained elsewhere, (3) the relationship
between the expense and the amount in controversy, (4) the relationship between the expense
and the parties’ ability to pay, (5) whether one party would be better able to keep costs down, (6)
the significance of the litigation, and (7) the information’s likely advantages to each party. The

28
 HAFIZ SPRING 2017

factors are listed in approximate order of importance, though the importance of litigation with
major public policy consequences may outweigh other factors when implicated.
Courts may require production of a sample of the requested electronic information in order to
establish a factual basis on which to base the cost-shifting assessment
Nuggets: The frequent use of cost-shifting will have the effect of crippling discovery in
discrimination and retaliation claims. Will undermine the strong public policy favoring resolving
disputes on their merits. Catch-22 need to show why you need type of discovery in order to get
discovery.

Marginal Utility Test of the 7 factors (2 factor test)

1. The extent to which the request is specifically tailored to discover relevant info
a. Requiring a sample can help with analysis of this prong
2. Availability of the info from other sources.
 Deciding disputes regarding the scope and cost of discovery of electronic data requires a
three-step analysis:
1. Necessary to understand the responding party's computer system (active and stored
data)
2. Determine what data may be found on the inaccessible media.
3. Cost-shifting analysis
  Most e-mail messages are never printed, and often times w/o knowledge they will be
preserved.
 Most cases turn on documentary evidence, especially in large-scale commercial litigation
 Does increase the burden for both for the discovering and responding party because of the
need to retrieve and translate electronic data.
 Once a party reasonably anticipates litigation, it must suspend its routine document
retention/destruction policy and policy and put in place a "litigation hold" to ensure
preservation.
 Counsel must oversee compliance w/ the hold
Mandatory Discovery Conference
 Parties must generate a proposed discovery plan that must address issues of e-discovery
and how and what will be produced. (Rule 26(f))
 
DISCOVERY CONTROL & ABUSE

Burdens of discovery include:

 Searching and compiling docs
 Time and expense of depos
 Copying and shipping docs
 Attorney fees
 Drafting rogs
 Judicial economy
Tools
 Litigation Holds
 Motions To Compel
 Protective Orders

29
 HAFIZ SPRING 2017

Rule 26(g) certifications differ from Rule 11 certifications because must certify that disclosures
are complete and correct and that discovery requests are proportionate to the case
 Focuses on the party's integrity of the discovery process
 Courts can impose sanctions sua sponte

Rule 37 gives the court the discretion to impose a discovery sanction that is "just" in the
circumstances
 Can be contempt of court
 Admission of certain facts
 Evidence preclusion
 Striking/dismissing claims
 Default judgment
 Failure to admit
 Pays expenses incurred in making that proof (court must order)
 Failure to disclose/Supplement
 Party can’t use info
 Court can order payment or reasonable expenses
 Court can inform jury
 Other sanctions

Spoilation is the "destruction or significant alteration of evidence, or the failure to preserve

property for another's use as evidence in pending or reasonably foreseeable litigation.
 Sanctions determined by trial judge on case by case basis including jury instruction in the
opposing party's favor
 Elements of proving spoilation:
o That the party having control over the evidence had an obligation to preserve it at
the time it was destroyed
o The records were destroyed with a "culpable state of mind" (includes negligence)
 When intentional that fact alone shows relevance
 If negligent then relevance must be proven
o The destroyed evidence was relevant to the party's claim or defense that a
reasonable trier of fact could find that it would support that claim or defense.

Protective Order
 Movant must show discovery dispute cannot be reconciled and that a protective order is
necessary to protect it from "annoyance, embarrassment, oppression, or undue burden
and expense" - Rule 26(c )
o Includes trade secrets and confidential R&D
o Requires the judge to compare the hardship to the party against whom discovery
is sought with the hardship to the party seeking discovery if it is denied.
 May consider the public's interest (i.e. hazardous material)
 When privacy interests are implicated by discovery the court can delay sensitive
discovery until later. (i.e. after summary judgment has been decided)

Chudasama v. Mazda Motor Corp. (1997)

30
 HAFIZ SPRING 2017

Facts: After an accident, the plaintiffs sued Mazda for personal injuries under theories of
products liability and fraud. During discovery, the Chudasamas sought production of nearly
every document Mazda had and information about virtually every Mazda employee, past or
present. Many of the requests were impossibly vague. Mazda objected to nearly all requests,
even if legitimate. When the court did not rule on its objections, Mazda moved to dismiss the
fraud count, because it was not plead with the particularity required by Rule 9(b) of the FRCP.
The court did not rule on the motion. Mazda requested a protective order to safeguard its
confidential business information from disclosure. The parties could not agree to the terms of the
protective order. After a hearing, the judge granted the protective order, adopting the
Chudasamas’ proposed order nearly outright. Mazda began concealing discoverable information.
The plaintiffs moved to compel Mazda to comply. After further dispute, the court granted the
Chudasamas’ motion to compel and adopted the Chudasamas’ proposed sanctions order against
Mazda. The court ordered that all Mazda’s pleadings be stricken, that a default judgment be
entered against it, that Mazda pay the Chudasamas’ costs and attorneys’ fees, and that the
protective order be vacated.
Issue: Under the FRCP, is a district court required to intervene in discovery disputes between the
parties?
R.ROL: FRCP Rule 26 requires district courts to actively manage the cases before them,
including ruling on parties’ pretrial motions and objections to discovery requests.
Failure to consider and rule on significant pretrial motions before issuing dispositive orders can
be an abuse of discretion.
Violation of a discovery order caused by simple negligence, misunderstanding, or inability to
comply will not justify a Rule 37 default.
Reasoning: Motions that do not require fact-finding should be decided before discovery. While
discovery is essential to fair judicial process, it can be expensive and time-consuming to parties
and courts. Because of this, a court must rule on motions to dismiss questionable claims,
particularly if doing so will limit the scope of discovery, before discovery if possible. If the
parties are unable to move forward because of a dispute, the court must rule on the parties’
objections. A court should not compel a party to comply with a discovery request until it has
done so. Further, a court should only compel discovery over a party’s valid objections after
providing its reasoned analysis. Here, the court failed to rule on Mazda’s objections and then
compelled Mazda to comply with the Chudasamas’ requests without providing any justification
for its actions.

It is an abuse of discretion to enter default judgment against a party under FRCP Rule 37(b)(2) if
“less draconian but equally effective sanctions were available.” The court’s sanctions in this case
were the harshest imaginable. Mazda had a default judgment entered against it, was ordered to
pay the Chudasamas’ costs, and was stripped of its protective order. The court’s conclusion that
Mazda acted in bad faith, in light of the court’s mismanagement, was a clear abuse of discretion.
Sanctions like default are only available “as a last resort.” Here, Mazda did not faithfully comply
with discovery procedures, but Mazda’s behavior was mostly the result of the court’s failure to
manage the discovery process.
Nuggets: Discovery should follow the filing of a well-pleaded complaint. It is not a device to
enable a π to make a case when his complaint has failed to state a claim.

Summary Judgment

31
 HAFIZ SPRING 2017

A motion for summary judgment effectively previews, usually in documentary form, the
evidence including sworn witness statements that parties would put on at trial in order to
determine if it would establish any dispute that requires trial. The purpose of the SJM is to
"pierce" or go beyond the pleadings to the admissible evidence that the pleader expects to offer
to prove them.
 Court must decide whether the state of the evidence is such that, if the case were tried
tomorrow, the non-moving party would have a fair chance of obtaining a verdict.
 If the movant shows there is no genuine dispute to any material fact and the movant
is entitled to a judgment as a matter of law.
 Essential to show that the non-movant has failed to meet an essential element of her
claim.
o Substantive law will determine which facts are material
 Evidence must be admissible for it to be considered by the court when deciding a SJM
o Narrow exception for affidavits and declaration - Rule56(c )(4)
 Rule 56(e) prohibits the non-moving party from "relying merely on allegations or denials
in its own pleading" to defeat a properly supported SJM.
 Typical standard of proof is preponderance of the evidence - which π has the burden; in
SJM the court must find that beyond the preponderance of the evidence jury could not find
for the non-movant.
o Standard of proof is amended if the type of case requires it (i.e. libel)
 A party has up to 30 days after the close of discovery to file SJM
 Partial SJM can be granted as to one or fewer than all claims as a MOL.
 Sometimes the Ct will deny SJM because a fuller record will be developed when the
controlling law is unclear.
 Must determine whether there is a question of law or fact; sometimes there are mixed Q’s
 
12(c ) motion for judgment on the pleadings is the record used for the decision. (The complaint,
answer, and reply are what is used)
 Can be converted to SJM

Slaven v. City of Salem (1982)

Facts: Fitzgibbons was arrested for lewdness and taken to the local jail. The arresting officer had
Fitzgibbons remove the contents of his pockets before placing him in a cell. The officer did not
ask if Fitzgibbons was wearing a belt. An officer found Fitzgibbons hanging by his belt from a
bar in the cell door. The officer cut Fitzgibbons down and called for help, but Fitzgibbons could
not be revived. Slaven, as administratrix of Fitzgibbons’s estate, sued Salem. Salem moved for
summary judgment, which was granted. In support of its motion, Salem offered affidavits from
the officers on duty. None of the officers claimed to have suspected that Fitzgibbons was suicidal
or known that he was wearing a belt.
Issue: Will a plaintiff’s claim survive a motion for summary judgment if the plaintiff has failed
to provide any evidentiary support for an essential element of her claim?
R.ROL: A defendant’s motion for summary judgment will be granted if the plaintiff cannot
provide evidence of a genuine issue for trial.
Reasoning: A plaintiff must provide evidence that there is a genuine issue of material fact for
trial or her claim will not survive a motion for summary judgment. When a defendant seeks

32
 HAFIZ SPRING 2017

summary judgment, the plaintiff must assert sufficient facts to show that there is some real issue
for trial. This must be supported by affidavits and other evidence; the plaintiff’s pleadings
alone will not satisfy this requirement. It is not enough for the plaintiff to “rely on the hope
that the judge may draw ‘contradictory inferences’ in her favor from the apparently undisputed
facts alleged in the affidavit of the moving party. If the plaintiff cannot produce evidence
sufficient to overcome the motion, requires the plaintiff to submit an affidavit explaining why
not. Slaven asserts that the Salem police should have known that Fitzgibbons was suicidal, but
none of the officers claimed to have had reason to suspect that Fitzgibbons was a suicide risk in
the affidavits submitted to the court. Further, none of the officers admitted to being aware that
Fitzgibbons was wearing a belt. Even though Slaven argued the affidavits were not credible, and
there does seem to be a dispute about the belt, it is irrelevant. Slaven had to show that the
officers knew that Fitzgibbons was suicidal to establish that the city owed a duty.

Trial
JURIES
Galloway v. United States (1943): Held that the judge has the authority to grant a directed
verdict and did not contravene a citizen's 7th Amendment right to trial by jury
Colgrove v. Battin (1973): Court held it is permissible to have as few as six members on a jury
in a civil case
 Not clear whether the 7th amendment mandates a unanimous jury verdict. Cases
have been decided with majority.

 Appellate review can grant a partial new trial if portion of verdict is unsupported.

Claiming Jury Trial

 Either party can demand it

 Fed Rule 38(b) provides that a party demanding jury trial must file a demand w/ the court
and serve it on all parties no later than 14 days after service of the last pleading directed
to the issue on which a jury is sought.

o Can demand jury in complaint or answer

o If a party does not demand than waived by omission.

 If an omission occurs FRCP 39(b) the judge may choose to empanel jury
on relevant questions

 If an agreement waives trial by jury by contract the court will typically uphold if other
party knowingly entered; if not the court is suspicious (i.e. contract).

o However judge may also have biases like juries

Selecting The Jury

 Large number of potential jurors will be summoned to the courthouse for jury duty

33
 HAFIZ SPRING 2017

 Jurors in federal courts typically are more geographically broad

 Jurors are asked questions to weed them out (process called voir dire)

 Jurors are stricken for cause and each side gets preemptory challenges where they can
strike a juror w/o cause.

 Jury trial is conducted in one shot; Bench trial may be intermittent.

Advisory Jury
 Rule 39(c ) authorizes fed judges to use an advisory jury in cases where there is no right
to a jury trial. Jury will decide the issue but the judge us not bound

Juries in Complex Cases

 4 Arguments why a jury should not be used
o Massive amount of evidence that must be reviewed and understood
o Duration of trial
o Complexity of factual issues raised
o Complexity and multiplicity of legal concepts that the jury must apply

JUDGMENT AS A MATTER OF LAW

Under Rule 50(a): If no reasonable jury could find the facts necessary for the non-movant party
to win and that judgment should therefore be entered in the movant's favor
 Motion for a directed verdict
 Serves two important functions
o They notify a non-movant party that she has failed to offer evidence concerning a
key element of her case thus giving her an opportunity to correct the omission
 Ensures cases are decided on its merits vs. procedure
o If no evidence judge can decide as a MOL and save the parties $

Renewed Motions for Judgment as a MOL Under Rule 50(b)

 Can renew this motion after verdict is in.
 Also known as JNOV - Judgment notwithstanding the verdict (aka judgment non obstante
verdicto)
 Judges deny first motion (50(a)) because of appellate review which may overturn their
decision and would force the trial to start from scratch
 Baltimore & Carolina Line v. Redman (1934): JNOV does not violate the 7th
Amendment's reevaluation clause because the judge conditionally submits the case to the
jury and can reassess the sufficiency of the evidence after the verdict.
 w/o this judges would have no way to correct an erroneous jury verdict

Legally Sufficient Evidentiary Basis Test

 Ask whether the evidence is such that w/o weighing the credibility of the witnesses or
otherwise considering the weight of the evidence, there can be but one conclusion as to
the verdict that is reasonable.

34
 HAFIZ SPRING 2017

 Must draw all inferences in the favor of the nonmoving party.

 Must not make credibility determinations
 A scintilla of evidence is not enough to surpass JNOV

Pennsylvania Railroad v. Chamberlain (1993)

Facts: Chamberlain sued Penn Railroad alleging it negligently caused the death of a brakeman.
Chamberlain claimed that employees of the Railroad negligently caused a multicar collision,
resulting in the deceased being thrown from the car. Three witnesses testified that no such
collision occurred. One witness testified that there was such a collision
Issue: Whether a party offering evidence that tends equally to sustain two inconsistent
propositions meets his burden of proof?
R.ROL: A defendant is entitled to a directed verdict in a case where the proven facts give equal
support to each of two inconsistent inferences, where the plaintiff has the burden of proof.
Reasoning: A plaintiff has not maintained the proposition upon which recovery is likely when
evidence tends equally to sustain either of two inconsistent propositions. His factual testimony
was consistent with both a collision and a non-collision, and his speculation that a collision
occurred is inadmissible. Since this is the only testimony that supports a judgment in favor of
Chamberlain, Chamberlain does not sustain his burden of proof.

Lane v. Hardee’s Food Systems Inc. (1999)

Facts: Donald Lane visited a Hardee’s Restaurant in Illinois. Lane went into the restroom,
slipped on the wet floor, and was injured. Lane sued Hardee’s Food Systems, Inc. on a
negligence theory in federal court. Lane claimed that there was no sign indicating that the floor
was wet at the time of the accident. Thus, Lane’s theory was that an employee had negligently
mopped the floor and failed to give customers an adequate warning. After Lane presented his
case, Hardee’s moved for a judgment as a matter of law (JMOL). The judge granted the motion
on the ground that Lane had failed to provide evidence that a Hardee’s employee, rather than a
customer, had left the water on the floor.
Issue: May a judge grant a JMOL against a nonmoving party if the nonmoving party has
presented evidence to support a ruling in its favor?
R.ROL: Once the π has presented the minimum evidence necessary to support a verdict, the
court may not weigh it.
Reasoning: In federal courts, JMOL is proper when, at the close of a party’s case, the party has
presented “no legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue.” FRCP 50(a)(1). “[A] mere scintilla of evidence” will not satisfy this requirement, but
once a court finds that the evidentiary threshold is met, JMOL is not appropriate. If there is any
way that the evidence could support a ruling in the nonmoving party’s favor, the judgment must
be overturned. Even though Lane may not have a strong case, he has met the minimum
evidentiary requirements for the issue to be sent to the jury. In addition, drawing all reasonable
inferences in Lane’s favor, the evidence is sufficient to support a jury finding of negligence.

CONTROLLING THE JURY

Harden v. Ski Venture, Inc. (1995)
Facts: Hardin sued Ski Venture, Inc for injuries sustained in a skiing accident. The Resort
denied responsibility and offered an affirmative defense of assumption of risk, rooted in the West

35
 HAFIZ SPRING 2017

Virginia Skiing Responsibility Act (the Act. At trial, the judge instructed the jury on the
elements of negligence, the duties of care owed by the parties, the Act, and assumption of risk.
Issues: Whether the instructions given to the jury were erroneous?
R.ROL: Trial judges have wide latitude of discretion and may offer jury instructions containing
only a general statement of the law, so long as the instructions are accurate and not misleading.
Reasoning: Federal district court judges are not obligated to construct jury instructions with any
particular degree of specificity. A federal court in diversity must instruct the jury on relevant
state law, but the proper construction of the instructions is a matter of federal law. To be
effective, jury instructions must accurately state the relevant law without “confus[ing] or
mislead[ing] the jury.” Trial judges are given discretion to fashion jury instructions that
accomplish these goals, and there is no requirement that judges accept the parties’ proposed
instructions. Taken together, the instructions did not prejudicially favor the Resort. District
courts may properly instruct the jury on relevant state statutes, and any bias resulting from the
instruction in this case is due to the construction of the law itself.
Dissent: Case law makes clear that trial judges are required to tailor the jury instructions to the
facts in a particular lawsuit. A judge may not refuse to give the accurate instructions proposed by
a party and instead offer instructions that are confusing, prejudicial, or incomplete. Federal law
required the court to instruct the jury on Hardin’s specific legal theory.

Turyna v. Martam Construction Co. Inc. (1996)

Facts: Brad Turnya was fired from his job as a truck driver for Martam Construction Co., Inc.
Turnya sued Martam for (I) back overtime pay, (II) retaliatory firing (III) breach of contract. The
court entered summary judgment for the defendants with respect to the breach of contract claim,
but the remaining questions were put to the jury. The jury was given a verdict form that was
neither a special verdict form nor a general verdict form. The jury found for Turnya on Count I
and the defendants on Count II. Under Count II, the jury filled in the blank awarding Turnya
$3,109.22 in unpaid overtime pay. The form then asked the jury whether it awarded Turnya
“punitive damages under Count II.” The jury filled in a punitive damage award against Martam
for $35,618.01. The court entered judgment for Turnya with compensatory, liquidated, and
punitive damages.
Issue: Under the FRCP, may an inconsistent jury verdict stand?
R.ROL: When a jury returns an inconsistent verdict, FRCP Rule 49 allows the judge to enter a
verdict consistent with the answers to interrogatories, send the jury back for further deliberations,
or order a new trial.
Reasoning: An internally inconsistent jury verdict will not be upheld in federal court. A general
verdict asks a jury who won the case and, if damages are proper, how much money is to be
awarded. A special verdict (allowed by Judges by own volition), by contrast, asks a jury to make
a series of findings of fact. Special verdicts are authorized by FRCP Rule 49(a). FRCP Rule
49(b) also permits a hybrid of the two form types—a general verdict with answers to
interrogatories. A general verdict with answers to interrogatories may present unique problems if
the jury returns a verdict that is inconsistent with the answers to the questions. In that case, the
rule provides the court with three possible courses of action: (1) disregard the general verdict and
enter a verdict consistent with the answers to interrogatories, (2) send the jury back for additional
deliberation, or (3) order a new trial. Here, it is unclear what type of verdict form was used.
Because of this, it is impossible to tell what the jury intended. The court should have recognized
the inconsistency and ordered a new trial.

36
 HAFIZ SPRING 2017

Nuggets: Courts can use special verdicts for complicated case on issues of fact and then judge
renders verdict.
 Pattern Jury Instructions, a book drafted by scholars advising judges of jury instructions
on a certain area of law is not meant to prevent judges from tailoring the rules to each
individual case.
 Good for nuanced area of law where instructions may be tricky
 Uniformity
 Can be obsolete and be a cookie cutter
 Harmless error: Mere error will not justify setting aside a verdict, unless justice requires
otherwise. The court must disregard errors that do not affect "any party's substantial
rights"
 Waiver: Rule 51 states a jury instruction objection should be made at the first
opportunity. Likely when the court gives the parties the proposed instructions prior to
reading them to the jury.
 Exception: Not waived if it was a plain error or affects substantial rights

Appeals
Must file a notice of appeal w/n 30 days of verdict and filed with the district court clerk
 Process is governed by the FRAP
 Clerk compiles trial record and sends to the Appellate Court
Appellant shapes the scope of review by the issues he/she raises for appellate review.
 Burden falls on the losing party from the district court.

REVIEWABILITY
For an error in the trial court to be reviewable on appeal it must have been: (These promote
finality)
1. Prejudicial
a. Must not be a harmful error
2. Preserved Below
a. Must be objected to on the record
i. Allows the judge to correct the mistake
b. Exception: Will be considered de novo if it involves a pure question of law and
would result in a miscarriage of justice
i. Also would consider if party had opportunity to object
ii. Or has great public concern
2. Presented Above
a. Must brief and argue the issue preserved.
i. Provides notice to court and opponent the issue of appeal
MacArthur v. University of Texas Health (1995)
Facts: Cassandra MacArthur sued the University of Texas Health Center at Tyler and two of her
co-workers, Painter and Wilson, for retaliation. Although all of the claims were included in the
pretrial order, at trial MacArthur only presented evidence on a few. MacArthur offered no
evidence or arguments related to the Title VII claim, and MacArthur failed to object when the
trial court judge did not instruct the jury on the claim. MacArthur did object to the judge’s failure
to instruct the jury on her Equal Protection claim, but was overruled. MacArthur appealed to the

37
 HAFIZ SPRING 2017

United States Court of Appeals for the Fifth Circuit, challenging the dismissal of the First
Amendment retaliation and sex discrimination claims. In the brief, however, MacArthur argued
only that the district court erred with respect to the Title VII claims.
Issue: Under the FRAP, may an appellate court review an issue not properly presented?
R.ROL: Rule 28 of the Federal Rules of Appellate Procedure (FRAP) requires an appellant to
properly present her argument in the appellate brief in order to secure appellate review.
Reasoning: A federal appellate court may only review an issue that was properly preserved
below and presented in the appellate brief. A party may abandon a claim made in pleadings by
failing to present any evidence or arguments related to that claim at trial. Further, a party who
believes that the instructions given to the jury are erroneous must object at the trial in order to
preserve the issue for appeal. When a matter does properly reach the appellate court, the party
must argue the issue in the appellate brief or the claim will be deemed abandoned. In this case,
MacArthur failed to present a Title VII claim to the jury. MacArthur discussed retaliation only
generally and failed to even mention Title VII retaliation during her arguments. MacArthur
effectively abandoned the claim. Consequently, the judge did not instruct the jury on Title VII
retaliation. MacArthur’s appellate brief focused only on the district court’s error with regard to
the Title VII retaliation claim, but that claim may not be reviewed.

APPEALABILITY
Interlocutory Appeal:
 NY law permits a broad range of interlocutory appeals
 Federal courts are more stringent
 Injunctions are appealable
o Can cause irreparable harm
 28 U.S.C. §1292(b): District courts if faced with a challenging question of law can write
so in the opinion which would allow an appellate court to review and decide the issue
because it can materially alter the outcome.
o Requires both a controlling issue of law and appellate court accepting the
certification.

In re Recticel Foam Corp. (1988)

Facts: Disgruntled employees of the Dupont Plaza set a fire that killed 96 people and injured 140
more. The incident led to numerous lawsuits in which some 2,000 plaintiffs sued 200 defendants.
The cases were consolidated, and the district court issued an expansive case-management order
to manage the discovery process. One of the defendants sought production of certain pictures and
videos. The party in possession of the materials objected but ultimately agreed to waive the
objection if a portion of the $600K cost of production was reimbursed. The court allocated the
costs among all served defendants. Recticel Foam Corp objected to the cost-sharing measures.
Issue: May circuit courts exercise jurisdiction over a matter before a district court has issued a
final decision?
R.ROL: Under the finality principle, circuit courts may not exercise jurisdiction to review a
matter before a district court has issued a final decision, unless it falls within the collateral order
exception.
Reasoning: A court without jurisdiction must refuse to hear a case, regardless of how ripe an
issue may be for judicial determination. Appellate review is only proper over district courts’
“final decisions.” A district court order is deemed final if it “resolv[es] the contested matter,

38
 HAFIZ SPRING 2017

leaving nothing to be done except execution of the judgment.” The only exception to the finality
principle is the collateral order doctrine. The collateral order exception allows appellate review
of an order that relates to “(1) an issue essentially unrelated to the merits of the main dispute,
capable of review without disrupting the main trial; (2) a complete resolution of the issue, not
one that is “unfinished” or “inconclusive”; (3) a right capable of vindication on appeal from final
judgment; and (4) an important and unsettled question of controlling law, not merely a question
of the proper exercise of the trial court’s discretion.” Put simply, appellate courts may review
orders that meet the requirements of “separability, finality, urgency and importance.”
Regarding RFC’s appeal, discovery orders do not satisfy the finality principle. Such orders deal
with preliminary matters, do not adjudicate parties’ rights, and may be modified. Piecemeal
review of these types of orders increases the risks of “congestion, duplication, delay, and added
expense.”
 Final decision is one which ends the litigation on the merits and no longer an issue for
trial so appeal is ripe; however can appeal on any of the above interlocutory exceptions

Preclusion
 Claimant must have had an opportunity to litigate their claim fully or else preclusion would
be unfair.
 Typically invalid if:
o No PJ
o No SMJ
 Courts have concluded that unless the district courts decision have
manifested a clear abuse of authority or substantially infringe on the authority of
another court claim preclusion should apply
o Insufficient Notice
o However waived when parties begin to litigate
 Finality of the Judgement
o A court will not dismiss a claim on preclusion grounds until another court has
issued a final judgment
 Concern that judgments will be inconsistent
o Judgment is final when the trial court enters a judgment even if the losing party
appeals
 If judgment is on appeal and the claim is pending in another court, the
other court will stay until appeal is decided.
 Judgment on the Merits
o Expansive view; includes:
 Jury verdicts
 Summary judgments
 JMOL
 Default Judgments
o Litigants had an opportunity to answer and argue claims
o SOL is divided; some courts give preclusive effect if dismissed others do not.
 Claimants should have fewer opportunities to litigate in court
 Conversely, every citizen has the right to have their day in court
 Have yet to meaningfully litigate

39
 HAFIZ SPRING 2017

o FRCP 41(b) All involuntary dismissals other than dismissals for PJ, SMJ, venue,
are dismissals on the merits unless the court explicitly states otherwise.
Interpreted to mean that claimant is unable to bring the same claim in the same fed
district court but does not necessarily preclude the claimant from litigating the same
claim in another fed/state court
 Counterclaim Problem
 Parties to the second action must not only be the same as the parties to the original
judgment but the claimant in the second action usually needs to be the same as the
claimant from the first case. (i.e. π must be the π and ∆ must be the ∆)
 This is limited by FRCP 13(a) as a compulsory counterclaim requiring a party to
state a counterclaim if it arises out of some the same transaction and does not
require adding a non-party

CLAIM PRECLUSION (RES JUDICATA)

 Parties cannot re-litigate claims that they fully litigated in a previous case
 Only applies when π refiles a complaint.
o Not retrial or collateral proceedings.
 Transactional Test: A valid judgment on a claim extinguishes all rights of the π to remedies
against the ∆ with respect to all or any part of the transaction out of which the action arose
o Variation: “Essential similarity: acts complained and demand for relief is the
same; theory of recovery is the same; witnesses/docs are the same; material facts
alleged are the same.

River Park, Inc. v. City of Highland Park (1998)

Facts: The plaintiffs sued the City in federal court for violations of their constitutional due
process rights. The court held that the plaintiffs had failed to demonstrate that their due process
rights were violated and dismissed the complaint with prejudice. The plaintiffs appealed to the
United States Court of Appeals for the Seventh Circuit, but the dismissal was affirmed. In 1994,
the plaintiffs sued in Illinois circuit court. The remaining counts were dismissed. The City moved
to dismiss the lawsuit on the ground that it was barred by res judicata.
Issue: Will res judicata bar a second cause of action between the same parties if there was a final
judgment in an earlier lawsuit?
R.ROL: Res judicata prohibits the same parties from asserting a claim arising out of the same
transaction or set of operative facts after there has been a final judgment on the merits. A district
court is not required to dismiss pendent state claims after dismissing the claim from which its
original jurisdiction stems.
Reasoning: The doctrine of res judicata prohibits parties from re-litigating a cause of action after
there has been a final judgment on the merits. Res judicata applies when (1) there has been “a
final judgment on the merits rendered by a court of competent jurisdiction,” (2) on the same
cause of action, (3) between the same parties. The doctrine bars not only claims that were
actually litigated, but also any claims that could have properly been raised during the earlier trial.
Although the claims would likely have been held different under the same evidence test, the
transactional test now controls. All of the claims share a “core of operative facts.” All relate to
the City’s alleged intentional delay of the zoning and development petitions. In fact, the factual
allegations in the federal and state complaints are nearly identical. The plaintiffs’ state court

40
 HAFIZ SPRING 2017

action is therefore barred by res judicata. The district court could have exercised supplemental
jurisdiction.

ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

 prevents parties from re-litigating issues that they previously litigated in another case.
 Helps preserve confidence in the judicial system.
 Promotes efficiency

NON-PARTY PRECLUSION
A judgement can preclude non-parties, if the party was in privity with one of the parties who
litigated the original case or had some sort of cognizable legal relationship that the party's
interest would have been adequately represented.
 
Six exceptions to non-party preclusion
1. A person who agrees to be bound by the determination of issues in an action between
others
2. A substantive legal relationship between the person to be bound and a party to the
judgment
a. A tactical whiff will not suffice
b. Principles of agency law are controlling
2. Limited circumstances, when interests are adequately represented by someone with the
same interests who was a party
3. Bound if non-party assumed control over the litigation
a. Person had opportunity to present and argue even though not a formal party
2. Bound if attempting to litigate through a proxy
3. Statutory scheme (i.e. 9/11 fund)

Taylor v. Strugell (2008)

Facts: Brent Taylor, an antique aircraft enthusiast, filed to obtain via Freedom of Information
Ac. Prior to Taylor’s suit, his friend, Greg Herrick, also an antique aircraft enthusiast, filed a
similar suit seeking the same information. Herrick’s suit was dismissed. Taylor sued, represented
by the same attorney. The district court granted summary judgment to the FAA, finding that
Taylor’s claim was barred by claim preclusion.
Issue: Can a claim be precluded if the litigant in the previous case was not the same as the one in
the current case and there is no legal relationship
between them?
R.ROL: A claim cannot be precluded if the previous litigant is a different party and there is no
legal relationship between the current and past litigants.
Reasoning: This case was dismissed by invoking the doctrine of “virtual representation.” This
theory states that a litigant may be subject to claim preclusion if they bring a claim that was
litigated in a previous suit and (1) their interests were adequately represented by the previous
litigant and (2) a close relationship between the old party and the new party, participation by the
present party in the current case, or “tactical maneuvering” by the present party in order to avoid
preclusion in the first case. This doctrine is an inappropriate application of claim preclusion for
three reasons. First, litigants are generally not bound by the actions of another. There are discrete

41
 HAFIZ SPRING 2017

exceptions to this broad rule, but it is one that exists in order to ensure that parties are held
responsible only for their own actions. The “virtual representation” doctrine would hold a litigant
responsible for a suit for which they were not noticed. While this is acceptable in certain types of
suits, such as class actions, those exceptions are creatures of statute, not common law. Third,
litigating these kinds of claims would take up a significant amount of the court’s time. However,
if a legal relationship between Taylor and Herrick existed, then claim preclusion would apply.
Courts can quickly get rid of cases through stare decisis.

Class Action
 Class actions make smaller claims more financially viable by lowering the cost of
litigation
o Judicial economy
o Lawyers more willing to take case on contingent fee
o Less expert fees
 Class action judgment is binding
 It is preclusive on the parties and the entire class they represent
 Res judicata/claim preclusion prohibits "claim-splitting" - when the representative class
does not pursue certain causes of action

When pursuing a class action:

 A π must move for certification in which it has the burden
o If certified the lawsuit becomes viable, the aggregate cost may lead ∆ to settle
 Must prove implicit requirements
o Jurisdiction
o Notice
o Well defined class
o Class representatives are members of class
 Must meet all of Rule 23 (a)
o Numerosity
 So numerous that joinder is impracticable
 Court must consider:
 Number of persons
 Type of action
 Monetary value of the individual claims
 Inconvenience of trying each case individually
o Commonality
 Contain questions of law and fact common to the class; Must be
substantially related
 Claims must depend upon a common contention.. Of such a nature that is
capable of classwide resolution
o Typicality
 Must show that the claims/defenses of the representative parties are typical
of the claims of the class

42
 HAFIZ SPRING 2017

 Established if the claims of all members arise from a single event or share
the same legal theory
 Ensures the representatives will "feel the pain" of the class members
o Adequacy of representation
 Representative parties will fairly and adequately protect the interests of the
class; Two factors:
 Whether the named representatives and their counsel are willing
and competent to pursue the litigation; Does not need to be the best person
 Class rep should be involved (disq. For poor health)
 Whether the interests of the representative πs are antagonistic to
the interests of others in the class
 Must meet at least one of Rule 23 (b)

o  23 (b) (1) The Prejudice Class (No opting out)

 23(b)(1)(a) there is a risk of inconsistent or varying adjudications w/ respect to

class members

 23(b) (1)(b) the limited fund is used when the liable party cannot pay all of the
claims so each π will get a portion so some do not get none (i.e. ∆ net worth is
30M but possible liability is 300M)

o 23(b)(2) Injunctive Relief/Civil Rights is intended for classes seeking primarily

injunctive or declarative relief, however damages that are incidental will not defeat
allowing this certification (No opting out)

 Must also be "cohesive" because members cannot opt-out members must be

bound together through preexisting / or continuing legal trait (i.e gender/race)

o 23(b)(3) Damages Class Action Requires that the q's of law or fact common to the
members of the class predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for the fair and efficient
adjudication

 Predominance: whether common to the class and subject to generalized proof or

whether it is instead an issue unique to each class member

 Members of proposed class must present evidence that varies from

member to member, then it is an individual question; if the same evidence
will suffice for each member to make a prima facie showing then it
becomes a common question.

 Proof of substantive elements

 Mutual interest of class members in resolving common questions

43
 HAFIZ SPRING 2017

 Resolution of an important issue would advance the litigation

 Common questions

 Superiority: whether the class action is superior to other available methods for the
fair and efficient adjudication of the controversy. Considers four factors

 Interest of members controlling suit in an individual actions

 Extent and nature of any litigation of controversy already in progress

 Desirability of concentrating the litigation of the claims in the particular

forum

 Difficulties likely to be encountered in the management of a class action

 ***Class members must be notified and given opportunity to opt-out***

 Uses Mullane Notice factors

 Differs from 23(a) commonality because that does not require issue to
predominate just has to be present

 Must give adequate notice to all parties (same as regular notice requirements)

 Best notice that is practicable under the circumstances, including

individual notice to all members who can be identified through reasonable
effort

 Sometimes also required for proposed settlements

 De minimus recovery should not bar class action where, absent class certification a
potential π is unlikely to be vindicated.

Class Action: Jurisdiction

 Fed Courts have original SMH over class actions in which the aggregated amount in
controversy exceeds $5M, if any π class member is a citizen of a state different from any
∆, or if any π class member is a foreign state or subject and the ∆ is a citizen of a state

 Fed Courts can deny jurisdiction if it finds that 1/3-2/3 of the π class members are from
the same state as the primary ∆ and the action has various attributes identifying it w/ a
particular state

Class Action: Discovery

 Limited to class representatives because of efficiency
 Absent class members do not need to respond to discovery requests

44
 HAFIZ SPRING 2017

o Some courts differ if the info sought is relevant to the resolution of common q's
the requests are made in good faith and are not unduly burdensome and the info is
not available elsewhere
Class Action: Settlement
 To prevent attorney collusion or unfair outcomes to some party’s, the court must approve
class action settlements. Courts consider
o The strength of the π's case
o Risk, expense, complexity, and likely duration of litigation
o Risk of maintaining class action status throughout the trial
o Amount offered in settlement
o Extent of discovery completed
o Experience and views of counsel
o Presence of a government participant
o Reaction of class members to proposed settlement.

In re Teflon Products Liability Litigation (2008)

Facts: Individuals claimed that DuPont falsely misrepresented that its Teflon nonstick coating
was safe, when in fact normal use can cause a flu-like illness. The action sought recovery for
economic losses and injunctive relief. In a multidistrict litigation proceeding, the plaintiffs asked
the court to certify twenty-three classes of consumers who used Teflon coated products. The
plaintiffs proposed three sub-classes: (1) those who bought branded Teflon coated products and
had documentation, (2) those who bought off-brand DuPont coated products, and (3) those who
did not fit into the other classes. After extensive discovery, it became clear that very few
potential plaintiffs, including the proposed class representatives, had any documentation or
memory about when or where they purchased the products at issue, and it would be impossible to
determine whether a product was coated with Teflon by a visual inspection.
Issue: May a class action lawsuit be certified in state court if it fails to meet the requirements of
FRCP Rule 23(a)?
R.ROL: A class action lawsuit in state court must meet the numerosity, commonality, typicality,
and adequacy of representation requirements of Rule 23(a) of the Federal Rules of Civil
Procedure (FRCP) to be certified.
Reasoning: Rule 23(a) of the FRCP sets forth the minimum requirements that must be met in
order for a class action to be constitutional. The party seeking certification has the burden of
making the necessary showing. A class must also satisfy two implicit prerequisites: (1) that class
membership is “capable of ascertainment under some objective standard” and (2) that the
proposed class representatives meet the requirements for membership. A well-crafted class
definition must ensure that the court can determine objectively who is in the class and not be
required to speculate. A claimant must be able to pinpoint the date of purchase to withstand SOL.
Here, the class membership is not ascertainable under an objective standard. In all three sub-
classes, membership is too speculative and requires individualized determinations. The implicit
prerequisites are not met. In addition, a class will only be certified if Rule 23(a) is satisfied.
First, the class must be “so numerous that joinder of all members is impracticable.” There is no
specific number requirement, it is a case-specific determination. Next, the claims of all class
members must involve “questions of law and fact common to the class.” This element will be
satisfied so long as the claims are “substantially related.” Third, the class representatives’ claims
must be typical of the rest of the class. This element may be satisfied by the fact that all parties

45
 HAFIZ SPRING 2017

assert a single legal theory, but even a shared legal theory will not satisfy the typicality prong
when an “individualized inquiry” in necessary to show the elements of a claim. Lastly, the class
representatives must “fairly and adequately protect the interests of the class.” The proposed class
representatives and counsel are willing and able to try the case, but it is unclear that the
representatives’ interests will not become “antagonistic to the interests of others in the class.”
DuPont makes a compelling argument that the plaintiffs’ choice to pursue only economic
damages and not physical injury claims may mean that some class members interests’ are not
represented. Moreover, those members may be barred by res judicata from asserting those claims
in a later action.

Choice of Law
Black & White Taxicab v. Brown & Yellow Taxicab (1928)
Facts: In 1925, Brown & Yellow Taxicab negotiated a contract with Louisville & Nashville
Railroad Company, for an exclusive license. Brown alleged that the Railroad began to allow
Brown’s competitors to enter on the property in violation of the exclusive agreement. Black &
White Taxicab & Transfer Co. was one of those competitors. All parties were Kentucky
corporations. Next, Brown’s shareholders created a corporation under Tennessee law and
transferred the business for the purpose of creating diversity of citizenship. Black alleged that
Brown incorporated in Tennessee in order to fraudulently create diversity jurisdiction, and that
Brown’s contract with the Railroad was void as against the public policy of the state of
Kentucky.
Issue: Must a federal court sitting in diversity apply common law rules as interpreted by the
courts of the state in which it sits?
R.ROL: Federal courts sitting in diversity jurisdiction can apply general common law principles
in cases before it.
Reasoning: Federal courts are not required to follow the common law precedents set by state
courts. The RDA, set forth in § 34 of the Judiciary Act of 1789, does not bind federal courts to
follow state court determinations of the common law. Federal courts are obligated to recognize
and apply state statutory law. The common law is not local to any particular state, but rather is “a
body of law constituting the general jurisprudence prevailing wherever the common law is
recognized.” While a federal court may view state court rulings as persuasive authority on
applicable common law rules, there is no requirement that the federal court abide by those rules.
Dissent: The idea that federal courts should offer “an independent judgment on matters of
general law” rather than apply the common law rulings of state courts is a fallacy. This fallacy
rests on the notion that the common law is a “transcendental body of law outside of any
particular State.” A state that adopts the common law is free to amend or disregard its principles
by statute. Louisiana did not adopt the common law at all. If states are permitted to change
common law principles to meet local needs by statute, they should be able to do so by judicial
decision as well, and federal courts should give effect to those decisions.
Nuggets: ***Old law that has been overruled***

Hannah Test
 If there is a conflict between a federal law of procedure and a state law that could be
either substantive or procedural must determine:
 Step 1: If there is a valid federal rule of procedure that is directly on point, apply
the federal rule

46
 HAFIZ SPRING 2017

 To be valid, FRCP must “not abridge, enlarge, or modify any substantive

right”
 Step 2: If there isn’t a valid federal rule of procedure that is directly on point:
 If there is a state rule that conflicts with a valid federal rule, but the rule is
not directly on point:
 Ask whether applying federal law would encourage forum
shopping or inequitable administration of laws.
Which State’s Laws?
 If applying state proceure, apply procedure of state where federal court sits
 If applying substantive law, apply choice-of-law rules of state where federal court sits
 Many states have different choice of law rules depending on the type of case and
the type of harm (i.e. contract/torts)
Erie Railroad Co v. Tompkins (1938)
Facts: Harry Tompkins, a citizen of Pennsylvania, was injured by a train owned by Erie Railroad
Co. Tompkins sued Erie, a New York company, for negligence in New York federal court. At
trial, Erie argued that Tompkins was a trespasser and, under Pennsylvania state law, the company
was not liable unless its conduct was wantonly negligent. Tompkins argued that federal general
law should apply and determine Erie’s duty and liability.
Issue: The trial judge applied the rule from Swift v. Tyson, holding that federal courts were only
bound to apply state statutory and customary law, not state common law.
R.ROL:  A federal court sitting in diversity must apply state substantive law, whether statutory
or common law.
Reasoning: The Swift rule prevented uniformity in state administration, created uncertainty for
plaintiffs and defendants, and resulted in discrimination and unequal treatment under the law.
For example, corporate parties could avoid applying state common law in a suit by
reincorporating under the laws of a new state in order to establish diversity. Thus, to avoid
injustice and further discrimination, the law of the state should be applied in diversity of
citizenship cases on general matters, regardless of whether it is made by its courts or its
legislature. A federal trial court exercising diversity jurisdiction must respect and enforce state
law. Refusing to use state law in general matters represents an unconstitutional invasion of state
autonomy and a denial of its independence. The Constitution does not give the federal courts the
power to create a "general federal common law." To do so would undermine the sovereignty of
the state governments.
Concurrence: The Swift decision was merely erroneous, not unconstitutional. Federal courts are
not bound by local tribunals however will receive deliberate attention and respect. It is unlikely
that without federal statutory direction, federal courts would be required to follow state
decisions. It is also doubtful that Congress does not possess the authority to declare what rules of
substantive law govern federal courts.
Nuggets: State judges believe themselves to be as qualified as federal judges to perceive the
"true rule" in a common law case, often refused to follow federal decisions. Consequently, the
likelihood of getting one rule of law in the state court and another in the federal court across the
street persisted.

47