FRCP --- Rules 3/4/6

Rule 6 – motion to extend time for serving

2 concepts
- Choice of law provision
 First shown in (Burger King Case)
 Any dispute Mr. R and BK would be governed by Florida law.
 That does not confer PJ, it is just choice of law.
- Forum-Selection Clause
o An agreement between parties, usually contractual
 (Carnival Cruise v. Shute)
 Says any dispute rising between these parties shall be conducted in the state of ______.
 Or in the federal court of _____.
 This is PJ by consent.
o The location of the forum chosen in the clause must make sense.

- (Carnival Cruise Line Case)

o Forum-Selection Clauses before this case were seen as oppressive.
 This case showed there can be a legitimate reason behind it.
 Carnival Won – headquartered and most of their business so clause made sense –
o Opp party tried to sue in California.

PERSONAL JURISDICTION
1. Ability for court to have power of a defendant
2. The Power to hail a person into court. Jurisdiction over the parties. Personal Jurisdiction is waivable.
a. In Rem:
i. Court has power over D’s property, NOT over D.
ii. Any property in the forum state  Can attach the property the D owns or claims to own.
iii. The suit is about who owns the property  Have to seize it at the outset of the litigation
iv. D must meet international Shoe (minimum contacts).
1. Jurisdiction over property not D
b. Quasi in Rem:
i. When a court exerts jurisdiction over the person to the extent of the value of the property the person
owns within the boundary of that state.
ii. Court has power over property BUT dispute has nothing to do with ownership. D owns the property.
iii. Claim has nothing to do with the property  Can attach the property
iv. Have to seize the property at the outset of the litigation
v. D must meet international shoe (minimum contacts).
1.
c. In Personam:
i. The court has power over the defendant herself/himself.
ii. Properly Served Process – includes a summons and complaint. When the person was properly served
while in the state. Idea of “notice reasonably calculated” to satisfy due process.
iii.Notice
1. Due process of law--- under the 14th amendment, the 14th amendment guarantees
parties the basic right to notice of a court’s intention to adjudicate a parties rights and an
opportunity for those parties to be heard before the court proceeds to do so.
2. Procedural Due Process

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 a. Notice and opportunity to be heard
3. FRCP 4 – Mechanics of a Notice
a. Process consists of a summons and a copy of the complaint
i. 4(a)(1) - Summons from court
b. 4(c)(2) - Service can be made by ANY non party who is at least 18 years old
c. 4(e) – How to serve an individual
i. 4(e)(1)
1. Can use a method that is appropriate by state law where the federal
court sits or the state where service is made
ii. 4(e)(2)
1. Personal Service – Hand process to him
2. Substituted Service –
a. Must be at the defendant’s dwelling/Usual abode. Usually where
you are living now.
b. with someone of suitable age and discretion at that dwelling who
RESIDES THERE. i.e. – no babysitter – doesn’t reside there
3. Serve the D’s agent (appt by defendant to receive process)
d. 4(c)(2) --- provides that personal service may be made by any person over 18 and
NOT a party to the action.
e. 4(e)(1) - pl may choose to serve process on defendant under the provisions governing
the state court where the fed ct sits. (ex: bringing suit in fed ct in Miami, then can use the
Florida rules for process) (THEY AVOID THE ERIE PROBLEM BC THE STATE LAW IS
INCORPORATED IN THE FEDERAL LAW)
i. OR under the provisions governing the state court where service will be made if
defendant is out of state.
f. 4(d) - authorizes the plaintiff to solicit a waiver of all these technicalities by sending
the complaint, 2 copies of notice of action, and a request that defendant waive formal
service of the summons and complaint.
i. Can be mailed by first class
ii. This gives defendant incentive to waive
iii. 4(d)(1) – by agreeing to waive service, you avoid unnecessary expense of
serving the summons.
1. 4(d)(1)(F) give the defendant a reasonable time of at least 30 days after
the request was sent—or at least 60 days if sent to the defendant outside
any judicial district of the United States—to return the waiver; and
iv. 4(d)(2) – defendant who refuses to waive w/o good cause is subject to cost of
service
v. 4(d)(3) gives defendant 60 days (rather than 21 days) to answer complaint
1. 90 days if out of US – (Judicial district)
g. 4(h)(1) – How to serve a business/corporation (partnerships or unincorporated bus.)
i. Serve an officer or managing or general agent  look for someone who has
enough job responsibility that we expect him to transmit important papers.
ii. With agent authorized to receive
iii. Service by method prescribed by state rules where fed court sits
iv. OR service by method prescribed by state rules where service will be
h. 4(k) LAS for the federal courts -- specifies when a federal court may exercise personal
jurisdiction over defendant (service of process is effective to establish jurisdiction over
the defendant in 4 circumstances)
i. Fed cts. Authorized to assert jurisdiction if the cts of the state in which the fed ct
sits could assert jurisdiction over defendant. (ex: If FL LAS authorizes
jurisdiction/ FL Fed Ct. will exercise jurisdiction to the same extent a FL state ct
would)
ii. Authorizes fed cts. To take jurisdiction in certain limited situations
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 1. Impleaded parties served within 100 miles of courthouse
2. Parties subject to interpleader (R22) jurisdiction.
iii. Authorizes fed cts to take jurisdiction in 1331 claims over parties who have
sufficient contact w/ the US as a whole, but not enough to support PJ’s MC test
for 1 particular state
iv. Service will support jurisdiction if some other federal statute provides that
service suffices to support jurisdiction for a particular type of case.
i. 4(l) - person making service must make proof of service (return of service)
i. by promptly filing an affidavit w/ ct setting out how service was made
j. 4(m) service of process MUST be made within 120 days of filing complaint (or action
may be dismissed)
i. CT must dismiss action if plaintiff fails to show “good cause” for failure to make
service within 120 days.
ii. REMEMBER- SOL period is different
k. Delivered is different from acceptance – deliver is what is needed to notice to be
complete – merely handing it to someone is not enough – they must HAVE the summons
/ and complaint
l. Personal delivery is the best notice you can give – constitutionally
i. His example: paper airplane through window is sufficient
m. (Learn different types of services ) – summons/complaints

4. Physical Presence – Pennoyer v. Neff.

a. If a defendant is within a state, and the plaintiff has delivered the process of service
within the state, then the courts will recognize personal jurisdiction even if the
individual is an out of state resident who comes into the forum state only briefly.
b. Four traditional Basis:
i. Presence: The D served with process in the forum
1. Gives us general PJ
2. Residence: Temporary residence. The court can assert person
jurisdiction if they are within the state (vacation, business, or simply
driving through the state). However does not count if in the state due to
fraud or for a different legal matter.
ii. The D’s agent is served with process in the state
1. Gives General PJ
iii. D is domiciled in the state – Give general PJ
1. Domicile: (permanent residence) Current dwelling place, has the
intention to remain in that place for an indefinite period of time.
Jurisdiction can be had over person who is domiciled in state even if
temporarily absent from the state.
iv. D consents
1. D can CLEARLY consent
5. Waiver of Objection to Personal Jurisdiction – There are two ways to object to personal
jurisdiction, if you do neither, then the defendant will have waived his/her rights.
6. THREE WAYS TO ATTACK PJ
a. (1)Collateral Attack: Ignore the original suit entirely.
i. The defendant can intentionally not respond to the complaint and default.
1. D served w/ process
2. D does not answer or file motion to dismiss within 21 days
ii. The court will enter a default judgment.
iii. P will try to enforce judgment.

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 iv. Then the defendant can make a collateral attack on the default judgment to void
it.
v. If the defendant case for no jurisdiction is valid, the judgment will be void. –
lack of SMJ or PJ
vi. This is very risky.  Because if the judgment is enforceable the defendant will
have lost his suit without ever having had a chance to defend it on the merits.
b. (2)Newer Special appearances rule - Rule 12b – must raise objection to jurisdiction
immediately or it is lost.
i. Is a new special appearance motion to dismiss because of a lack of personal
jurisdiction
ii. Or you can assert lack of jurisdiction in your answer directly, which preserves
the idea of no jurisdiction as a defense.
iii. Can raise other objections too
c. Preserve defense
7. Consent to Personal Jurisdiction: When a person has consented to give a particular state
court personal jurisdiction even if no contacts to the state at all.
a. Consent by statute/ Choice of law provision: Particular law that courts will apply to a
particular dispute.
i. if a state has a statute that motorists using its roads will be subject to the states
laws.
b. Consent by Service of Process
c. Consent by Forum Selection Clause: A clause in a contract or ticket that states that
disputes will be resolved in a particular forum. The court will uphold these clauses
unless the clause is so one sided.
i. Any dispute regarding arrangement will be determined in the courts of a specific
state.
iv. Minimum Contacts: International Shoe: Jurisdiction if the plaintiff shows that the defendant had
certain minimum contacts such that the exercise of personal jurisdiction would not offend the
traditional notions of fair play and substantial justice.
1. The courts of a state may exercise PJ over a defendant if she has such minimum contacts with
the state that it would be fair to require her to return and defend a case there.
a. Depends on the “quality and nature” of the contacts with the state  could be a single
contact but cant be casual or isolated.
i. Single act- may be sufficient to satisfy specific in personam jurisdiction (if the
COA arises out of the single act w/ F.S.)
ii. Continuous but limited activity may be sufficient in specific jurisdiction if
claim arises out of the continuous but limited activity
1. Ex: ongoing business relationship
iii. Substantial, continuous & systematic - defendant is subject to general
jurisdiction and may be sued in the F.S. for any claim, even one that is
completely unrelated to the in-state activity.
1. The defendant’s activities are so continuous and systematic that
defendant would expect to be subject to suit there on any claim and
would suffer no inconvenience from defending there.
2. Ex: major American oil co. will be subject to PJ many states regardless if
the claim arose there
3. Ex: people who are domiciled in a state will be subject to PJ regardless of
whether the claim arose out of the contact.
2. MC ANALYSIS - The analysis must always consider the relationship between the contacts that
gave rise to the suit and the state where the suit is brought.
a. Purposeful availment- defendant must have purposely availed (voluntary herself of
the privilege of conducting activities within the F.S., thus invoking the benefits and
protection of the F.S. laws.

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 i. Defendant must have made a purposeful and deliberate choice to relate to the
state in some way before she can be made to bear the burden of defending in F.S.
ii. TO determine PV, must look to:
1. The activity
2. What connection did the F.S. have w/ defendant
3. Look to BK factors to bolster or defeat PJ
3. This can be seen by doing business in the state, but the contacts must be purposeful and
deliberate, simply putting something in the stream of commerce isn’t enough unless you had an
intent to serve that state.
a. Ex: advertising, cultivating F.S. customers, sell directly to F.S. customers, focusing on F.S.
market
b. Sending substantial quantities constitutes purposeful availment
i. Reason -- bc the maker (defendant) forsees and benefits from F.S.
4. Def. has had regular and purposeful (continuous and systematic) contact with the forum state.
5. Defendants contact and connection with state must be such that he should reasonably foresee
being haled into court.
6. Total absence of contacts = court doesn’t have jurisdiction.
7. The minimum contacts test applies to individual as well as corporate defendants
8. The defendant may have sufficient contacts with a state to support minimum contacts
jurisdiction there even though she did not act within the state.
9. Minimum contacts analysis focuses on the time when the defendant acted, not the time of the
lawsuit
3. Burger King Factors: used to show that even where MC exist, these factors make the exercise of PJ unreasonable.
(used to determine whether the exercise of PJ comports w/ fair play and substantial justice)
a. Burden on the defendant
i. Defendant has to make a compelling argument that even though MC exist, the burden of traveling to the
F.S. and defending there outweighs against the exercising of jurisdiction over defendant
1. Looks at convenience to defendant (maybe domestic v. foreign)
b. The forum state’s interest.
i. Does F.S. have a strong interest in resolving the dispute?
c. P’s interest in obtaining convenient & effective relief
i. Way for plaintiff to bolster argument that she has a strong interest in F.S. adjudicating her claim.
d. Interest in efficiency
i. Interstate judicial system’s interest in obtaining the most efficient resolution of controversies
1. Will the exercise of PJ be so costly that it is better for state to hear or will the exercise of PJ be
efficient?
e. Interstate interest in shared substantive policies.
i. States want it to be fair. So whichever F.S. will give fairer results for the parties

4. General and Specific Jurisdiction: May affect the amount of contacts that are needed to establish sufficient minimum
contacts. Looking at: volume of contacts and systematic and continuous nature of contacts; Balance inconveniences;
Relationship between contacts and claim. No contacts or casual or isolated contacts = no jurisdiction.
a. General Jurisdiction:
i. If the D has continuous systematic ties with the forum, he can be sued in that forum on a claim that
arose anywhere in the world.
ii. The type of contacts that are so huge, great, and so systematic.
iii. BARBRI –
1. General Jurisdiction applies only if someone is in their domicile
a. Main thing – Corporations
i. At home at 2 states at most
1. State where incorporated
2. State where it maintains it principle place of business (Where the
decisions are made for the corporation)
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 3. Possible for other state with enough activity, but MOST LIKELY NOT
b. Specific Jurisdiction:
i. The D is sued on a claim that arises from her activities in the forum state and that claim must relate to
things that you did in the forum state.
ii. “The Plaintiff’s claim must arise out (was caused by) of or relate to the defendant’s contact with the
forum”
5. Long Arm Statutes:
a. Definition
i. Determine how far and under what circumstances the state can assert jurisdiction over a person.
ii. A state can exert jurisdiction only to the extent it is constitutional.
iii. A state long arm statute may be more restrictive than the constitution, but can NEVER be beyond the
reach of MC.
iv. Assert authority over non-resident. Start with long arm statutes before minimum contacts.
v. LAS- PERMIT nonresident defendants to be held subject to PJ and amenable to service of process.
vi. Long arm statutes authorize their courts to exercise jurisdiction over non-resident defendants based on
specific enumerated types of contacts with the F.S.
1. An enumerated LAS requires the finding of MC but further restricts the power of the courts to
hear cases arising out of certain types of activities
b. Analysis
i. First step: in personal jurisdiction analysis: Need to see if there is a statute or federal long arm statute,
1. If NO, then look to state LAS
2. If yes, second step
ii. Second Step: See if acts/conduct of defendant fit within the FED LAS or state LAS
1. If yes, then see if defendant’s conduct w/ F.S. meets MC test
2. If NO, then F.S. cannot exercise PJ over defendant.
iii. A Federal Claim brought in Federal Court based on violation of a federal law, will look to see if there is a
long arm statute in the federal law, and if not then they will look at state law for a long provision.
iv. If in state court on state claim  use state long arm.
v. If in the state court in a federal law claim, look for a federal long arm statute, if not one then look at
state long arm.
vi. Begin analysis with the long arm statute (if available), if cant pass the long arm then don’t go to
minimum contacts.

Statute of limitations – when it ends on a weekend or legal holiday – then the final day will be moved to the next weekday -
best to talk to a judge

Starts day after incident – if in coma it was whenever you wake and could have known

A complaint

To change your domicile you must – prove the intent to permanently reside where someone has moved from where they
were born

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Federal courts
SUBJECT MATTER JURISDICTION
1. Notes:
a. Ability for court to hear the case
2.
a. Federal Courts are courts of limited subject matter jurisdiction under 28 USC §§1331,1332.
b. Subject matter jurisdiction deals with Federal Questions and Diversity Jurisdiction.
i. Must have one of these in order to get into federal court.
c. Not waivable.-- Parties may challenge SMJ at anytime during the litigation even on appeal
d. Questions to ask: Can that suit actually be in federal court? Where does it need to be?
3. State Court subject matter – That state courts in every state have a very broad jurisdiction to hear most types of
cases. Most cases arise under state law.
4. Federal Court subject matter –
a. Article III – Federal court is a court of limited SMJ
b. 2 kinds of cases that can go to Fed. Court
i. Diversity (1332)
ii. Federal Question (1331)
1. The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States. – Federal court cannot take complaints that
were not in the original complaint – these complaints must have to do with above ^ CLT
c. EVERY SINGLE claim in federal court must have SMJ and need to assess the SMJ of it.
i. Other claims may be brought through supplemental jurisdiction 1367
5. General Subject matter jurisdiction –
a. Very broad subject matter. Have subject matter over a wide range of suits, such as torts, contracts, property,
and other common types of disputes.
6. Limited Subject Matter Jurisdiction –
a. Provide a forum for specific categories of cases.
7. Concurrent Jurisdiction –
a. State courts have concurrent jurisdiction over cases within the federal judicial power unless congress has
made federal court jurisdiction exclusive for a particular type of claim. A state court may hear many claims
arising under federal law. Federal courts do not have the concurrent jurisdiction over state law actions.
8. Federal Question Jurisdiction: 28 USC §1331. “ The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States”. -- Courts of limited subject matter jurisdiction
a. There is a two prong test to determine whether federal court has SMJ over claim
i. Must have a pivotal & Substantial federal element
1. “a suit arises under the law that creates the COA”-- the statute does NOT confer jurisdiction
on the federal court over cases that involve fed law UNLESS the fed issue is necessary to the
proof of the plaintiff’s claim
2. If the federal law did not exist, then P would not be able to sue
3. Exception -- where a plaintiff cannot prove a state law claim w/o establishing a proposition
of federal law
a. Means- the federal issue is embedded (must be substantial & essential to prove
state COA) in the state law claim and is essential to its resolution.
b. “sometimes the need to resolve an issue of federal law to prove a state COA will
support federal jurisdiction. (1331 “arising under”  satisfied)
4. Individuals cannot bring a 1332 claim where Congress did NOT intent to authorize parties
who claimed injury to sue
ii. Must be part of plaintiff’s well pleaded complaint
1. Plaintiff MUST state in her complaint that the COA arose under the constitution, laws, treaties.
a. Otherwise it is NOT well pleaded and it gets thrown out.
b. State law claims ex: negligence per se = is a plead for violation of state law not federal law – will not go to
Federal Court
c. Well Pleaded Complaint Rule: - 28 USC §1331
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 i. Look at the claim itself on the complaint – Must specifically plead a federal question.
1. IF NO, then not well-pleaded, and court will not have SMJ
ii. Look for a federal Law – But make sure the P is enforcing a right under that federal law!!
1. P cannot be claiming that the federal rule does not apply (defense)
a. When a party uses the federal law as a defense rather than saying that the claim arose
from a federal law.
2. Or P cannot import a federal question into her complain that is NOT essential to her case.
iii. Is the P enforcing a federal right? If YES  meets well pleaded complaint rule.
iv. A state law claim may be removed from state court to federal court on a 1331 ONLY if it has been
well-pleaded
1. Unless- a pleading which the plaintiff has attempted to defeat removal to fed court by
artfully leaving out a substantial federal question -- CAN STILL GO TO FED COURT (2)
situations
a. A substantial federal question is embedded in the state law claim, but artfully omitted
from the pleaded state claim
b. OR
c. Congress intended to preempt the field - means- regardless of what plaintiff
pleads, a federal claim (by definition raising a substantial federal question) has been
raised.
i. Artful pleading -- See if the plaintiff has attempted to disguise the claim by
trying to get it into state court by adding on a tort claim or vice versa. When
courts see this, the will assert jurisdiction accordingly

9. Diversity Jurisdiction: 28 USC §1332:

a. The federal court will have subject matter jurisdiction on the basis of diversity
b. 2 prong test: In order to have diversity the plaintiff must satisfy: - nothing to do with subject matter – just
the Defendants
c. Most diversity cases are state law cases
i. Case is between citizens (not residents) of different states
1. There is no diversity if any P is a citizen of the same state of any D
2. Can have citizens of the same state on the same side of the v., but not on separate sides of the
v.
3. Citizenship
a. US citizen is a citizen of the state in which she is domiciled.
i. Domicile – only have one domicile at a time. 2 things to meet: - Domicile is
where a person INTENDS TO PERMANENTLY RESIDE – Ex: Mas v. Perry – Case
1. Physical Presence
2. Intent to make that new state permanent home
ii. To determine an individual’s domicile look at such things as:
1. Voters Registration
2. Paying Taxes
3. Membership to a local club or organization
4. Homestead exemption
5. Car registration
6. The person must have some kind of permanent connection with the
state, this must outweigh prior connections with a previous domicile
b. Regardless or looking at citizenship – Just look at domicile - for diversity
purposes
i. Ex: Irish citizen and domiciled in Florida
4. Corporate Citizenship
a. DO NOT have domiciles – can have 2 citizenships
b. §1332(c)(1)
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 i. Corporation is a citizen of the state where incorporated AND Principle place of
business
ii. The one state where the corporation has its principle place of business – The
nerve center of the corporation, where business is directed.
1. MUST BE COMPLETE DIVERSITY BETWEEN PLAINTIFF AND
CORPORATION
iii. Principle place of business - Can be determined in either of two ways:
1. Corporate headquarters or nerve center (the place from which its
activities are coordinated)
2. Main manufacturing or activity or muscle center.
3. “Place of business” – connotes the place where you do what you exist
to do.
4. “Principal” – the place where you do most of it. Where is employs the
most people, conducts the most activities, has the most interaction
with the public.
c. Partnership Domicile: the domicile of every partner
i. Place where established and personal place of business
d. Unincorporated Association’s Domicile: The citizenship/domicile of each member
i. Ex: Unions,
e. Unincorporated companies are treated identical to corporate companies
f. A person admitted into the United States – Domicile is where they reside
g. Deceased – Where they died
h. Minor – Where the minor or incapacitated is – not who helps them
ii. Claim must exceed $75,000
1. It must exceed $75,000. Can’t be exactly $75,000, must be over.
2. The P’s claim governs unless it is clear to a legal certainty (Absolute) that she cannot
recover more than $75,000
a. The burden is on the defendant to show to a legal certainty that the plaintiff could
not recover that amount
b. Very rare – a lot of times with statutory cap.
3. Aggregation
a. Add multiple claims to get over $75,000
b. Rule:
i. Aggregate P’s claim if there is one P v. one D – IN CLASS – HE SAID YOU
CANNOT AGGREGATE IF THERE IS ONLY ONE DEFENDANT
ii. Claims can be totally unrelated
iii. No limit on number of claims
iv. Cannot aggregate if multiple parties on either side
v. With joint claims, use the total value of the claim, and the number of parties is
irrelevant because any one of the three could be liable for the total – i.e. Joint
tortfeasors.
c. Aggregation of claims to meet the amount in controversy requirement –
i. Single plaintiff can assert two or more claims against a single defendant so
that the amounts add together to meet the requirement.
ii. Single plaintiff cannot aggregate amounts sought from different defendants 
must meet the amount requirement from each defendant individually.
1. If cannot meet, then P may enter those claims in through supplemental
jurisdiction., so long as one of the claims are over 75k, and the other
claims are part of the same case or controversy (1367a)
2. 1367 expands reach of subject matter jurisdiction
iii. Plaintiffs cannot add their claims together to meet the amount required  i.e.
– husband and wife hurt in car crash, husband wants 50k, wife wants 30k –
cant join together to sue the person who crashed into them.

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 iv. If one plaintiff meets the requirement  others can join his claim against a
single defendant even if they don’t meet the requirement.
v. If plaintiff seeks more than 75k from one defendant and less from another 
amount requirement is not met for the other defendant
1. Can get in through supplemental jurisdiction.
vi. Counterclaims don’t count – only original lawsuit
vii. Court looks at the plaintiff’s view of the 75k – loss for case
iii. Complete Diversity
1. All plaintiffs in a suit are from different states than all the defendants at the time the suit is
brought. Article 2

Rule 12 – motion to file for dismiss a complaint

a. Rule 12 - Defenses and Objections, when and how presented. (Motion to Dismiss)
i. Rule 12a When Presented
1. Rule 12a1A: The answer shall be filed within 21 days after service of the complaint.
2. Rule 12a2: If a party is served with a counterclaim in an answer, they have 21 days to answer
or counterclaim back.
3. Rule 12 a3A: If the gov’t is served with a complaint, they have 60 days to comply.
4. Rule 12 a3B: A gov’t agent has 60 days to reply to an answer with a counterclaim
5. Rule 12a4A, B: If the court grants or denies a motion for a more definite statement, then the
responsive pleading shall be served within 14 days after the courts motion or service of the
more definite statement.
1. Motions to Dismiss under Rule 12(b)(1-7): This motion will either be in the answer or by motion of the court. The
judge will look to the four corners of the pleading an determine if the case should be dismissed, there is no testimony
2. Failure to State a Claim - Rule 12(b)(6)
a. Motion to dismiss for failure to state a claim
b. The court NEVER looks at evidence
c. Look at the face of the complaint
i. If everything here were true, would the plaintiff win?
d. Have to give facts and ignore conclusions of law
e. Sometimes point out sloppy pleading, light most favorable too
f. If has 4 elements, A, B, C, D and the complaint doesn’t say anything about C  will be dismissed
g. Testing the legal sufficiency of the complaint
3. Motion for Judgment on the Pleadings: This occurs after all of the pleadings have been made, this is the same
substantive motion as to dismiss, but it is at a different time. AFTER pleadings concluded. Light most fav, takes ALL
PLEADINGS as a whole, not just complaint .
1. Rule 12b 4-7 are curable defects that MUST be fixed before claim can proceed
a. R12b 1-3 - are fatal to the claim.
i. If party cant be joined - then ct will determine whether case can proceed
without party. If not then, the motion will be granted and the indispensable
party dismissed.
ii. Rule 12c Motion for judgment on the pleadings. After the pleadings are closed, a party may move
for judgment on the pleadings. The difference between 12b6 and 12c is that 12c is after pleading has
closed. 12b6 is brought in the first responsive pleading before an answer is filed or is in the answer.
iii. Rule 12d Preliminary Hearings: The defenses listed in 12b1-7 and the motions in 12c shall be heard
before the trial.
iv. Rule 12e: Motion for a more definite statement. If the complaint is vague or ambiguous that the D
cannot be reasonably required to frame a responsive pleading then D may move for a more definite
statement. If the motion is granted and not complied with within 14 days, the court may strike the
pleading.
4.
5. Rule 12f Motion to Strike: Authorizes motions to strike directed to redundant, immaterial, impertinent, or
scandalous matter in the complaint.
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 i. Rule 12g Joining Motions – There are certain motions that need to be brought together or you have
waived them.
1. Right to join - A motion under this rule may be joined with any other motion allowed by this
rule.
2. Limitation on Further Motions - Except as provided in Rule 12(h)(2) or (3), a party that
makes a motion under this rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted from its earlier motion.
ii. Rule 12(h) Waiver or Preservation of Certain Defenses:
1. 12(b) 2, 3, 4, 5 – Must be put in your first rule 12 response or else they are waived. Whichever
you do first, answer or motion, must be in there.
a. Lack of SMJ is never waived – even if there is no motion or complaint arguing against it
2. 12(b) 6, 7 – Can be raised any time through trial. Cannot raise them for the first time on appeal.
3. 12(b) 1 – NEVER waived. Can be brought up at anytime during the case.
b. Waiver of Defenses under rule 12:
i. 12(b)(2)-(5) defenses will be waived if not raised in the defendant’s first response to the complaint
1. For purposes of PJ – if you don’t make a motion in the first 21 days – or fail to include lack of PJ
in your answer – then you as the defendant have waived any contest to PJ
a. This doesn’t apply if they do nothing with complaint – you are served and through it in
the trash – completely ignore the lawsuit- go to court – get a lien – lien is enforceable –
find property the Defendant owns – attach the property – then the D shows up
b. COLLATERAL ATTACK

Supplemental Jurisdiction
1. General:
a. Supplemental Jurisdiction is the ability of the court to hear related claims.
b. In order to get Supplemental Jurisdiction, the new claim must be part of the same case or controversy under
Article III of constitution. (arise from a common nucleus of operative fact from the other case)
c. There needs to be personal jurisdiction first, over every single D
d. Expansion of original subject matter jurisdiction
2. 28 USC § 1367(a) –
a. If you have a claim that can go into federal court by SMJ, either by federal question jurisdiction or diversity
jurisdiction, then as long as another claim is so closely related to the claim that got the case into federal court,
then § 1367(a) allows the court to hear the claim in connection with the original claim, even if the claim did not
have an independent basis for SMJ to be heard in federal court. (MUST BE PART OF SAME CASE OR
CONTROVERSY AS ORIGINAL CLAIM)
i. Met by -------- the claim MUST derive from a common nucleus of operative facts.
1. MEANS ----- overlapping facts, necessary to prove the C.O.A., same facts will prove the
elements of the state law claim.
b. Must arise from a common nucleus of operative facts. (common gives it more stretch than – “Same or
identical”)
i. So long as claims are ruled on the same facts or merits, §1367 would allow the claims to be together in
Federal court.
c. The court shall exercise supplemental subject matter jurisdiction over a claim -
d. § 1331 Initial Claims: If the initial claim is one of Federal Question and additional claims are part of same case
or controversy (meaning- they arise out of a common nucleus of OF) then §1367 allows the claims. You don’t
need to worry about diversity here, because the court has original jurisdiction based on a Federal Question.
e. § 1332 Initial Claims: If the initial claim is one of diversity, any additional claims must be part of same case or
controversy (1367a) and must comply with (1367b) and not destroy complete diversity in order to be heard
under §1367. LOOK TO 1367b
3. § 1367(b):
a. Applies ONLY in diversity cases
b. This rule limits the scope of supplemental jurisdiction.
c. The court shall not have supplemental jurisdiction over claims by plaintiffs under:
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 i. Rule 14 (3rd Party Claims)
ii. Rule 19, 20 (Joinder)
iii. 24 (Intervener) as a matter of right or permissive (right is by statute) (Permissive is allowed if
intervening plaintiff has some Q of law or fact or interest in the case)
iv. IF those claims would destroy diversity unless those claims have an Independent Basis for Subject
Matter Jurisdiction.
1. If there is IBSMJ--- then 1367b DOES NOT apply
v. Also prohibits district courts from exercising supplemental jurisdiction over claims by persons
proposed to be joined as plaintiffs under R19 which will destroy diversity.
1. R24 -- NO supplemental jurisdiction over intervening plaintiffs under R24 whose claims will
be inconsistent w/ jurisdictional requirements of 1332
2. DOES NOT PROHIBIT---- plaintiff joined under R20 from bringing claims that will destroy
jurisdiction.
a. R20 plaintiffs may bring whatever claim they want.
4. § 1367(c): Even if a claim gets in under 1367 a or b, the court may still refuse to hear it for the following reasons:
a. The claim raises a novel question of state law, or
b. The claim substantially predominates over original claim, or
c. The original claim has been dismissed, or
d. Any other reason the court comes up with.

Venue
1. Venue Generally:
a. Where to specifically have the case?
b. What courthouse?
i. Makes a huge difference
ii. The district that has the most contact with the case is where venue should be.
iii. If you have personal jurisdiction (or it is waived) over a defendant – then you will always have a proper
venue within the state
c. The specific geographic location of a courthouse in a forum that already has personal and subject matter
jurisdiction. Question- “Where can defendant be sued?”
d. Under §1391 it tells you where venue shall be had.
e. When analyzing always start with personal jurisdiction, and then subject matter, and then venue.
f. For the most part if there is proper PJ for defendant then there will almost always be a proper venue
i. Aka venue is usually only proper in a district of a state where the defendant has contacts, NOT in the
districts within the state where the D does not have contacts
1. Ex: FL has 3 districts. If D only has contacts w/ N. District. Even though D will be subject to PJ in
all of FL, venue will ONLY be proper in the district court in N.District.
g. Venue may be waived if not properly asserted
i. Venue is a personal privilege to the defendant
1. D waives her objection to venue by failing to raise it when she responds to the P’s complaint
a. Whether by 12b M2D for improper venue (it is an affirmative defense) OR
b. Preserving it in the D’s answer
ii. Parties can stipulate or contract to an otherwise improper venue
iii. Improper venue can be CURED by transfer to another court (proper venue)
h. Venue applies to original claims
i. Where an action “may be brought”
2. Special Venue Statutes:
a. There are several special venue statutes governing particular kinds of suits.
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 i. Ex: patent infringement claims which arise from fed law (USC 1400b)
3. Venue Rules: (general venue provisions)
a. 1391:
i. 1391(a) - Governs venue in 1332 claims
ii. 1392(b)- Governs all other cases NOT 1332 claims
iii. 1391(c)  Businesses - in every district where it is subject to personal jurisdiction.
1. Defines the residence of corporate Ds for purposes of applying sections a & b
2. Any judicial district (not the whole state) in which it is subject to PJ at the time the action
commenced (minimum contact required)
a. Also in district where it is incorporated
b. And where its primary place of business is
c. Look to see if corp. would be subject to a particular district in a state within which its
contacts would be sufficient to subject it to PJ of that district if it were a sep state.
i. Venue is ONLY proper when the district is treated like a sep state (look for
contacts)
iv. How it works:
1. 1391(a/b)(1) You may lay venue in any district where any D resides (if ALL Ds reside in same
state)
a. If all Ds reside in different districts of the same state, then you can sue them ALL where
ANY of them resides.
b. Reside – usually domicile;
2. 1391(a/b)(2)-- You may lay venue in any district where a substantial part of the claim
occurred/arose
3. OR 1391(a/b)(3)-- You may lay venue in a district where any defendant is subject to
personal jurisdiction (a)at the time of the commencement of the action (b) if there is no district
to where the action may be brought
a. (only if there is no other district where the action could be brought/Fallback provision)
4. An alien may be sued in any district
4. Venue by forum selection clause
a. Parties may agree in advance to a particular venue for suits that may arise between the parties.
b. Generally enforceable even if they lay venue where it would otherwise be improper
i. UNLESS-- the K is one-sided
5. Judge made exceptions to Venue Requirements
a. Actions that are properly removed to Fed Ct need NOT satisfy the federal venue requirements of 1391 bc the
removal statute specifies the district to which the case MUST be removed to
b. Cts usually DO NOT apply venue requirements to supplemental claims when venue is proper on the original
freestanding claim
i. Bc- convenience was already taken into account when added to the original claim.
6. Local actions -- MUST be prosecuted in the county or district in which the land is located.
a. Ex: when an action involves property, the only proper venue was where the property was located.
7. Change of Venue -- “A court in which venue has improperly been laid may dismiss or if it is in the interest of justice
may transfer the action to a proper venue within the same judicial system in which the claim could have been brought
a. There are Four options regarding improper venue
i. (1)Dismissal by 12b motion to dismiss/preservation in answer
1. Remedy- Dismissal of action w/o prejudice
ii. (2)Dismissal based on convenience (forum non-conveniens)
iii. In order to avoid dismissal, the plaintiff will usually seek an alternative to dismissal- a transfer of the
action to a proper venue within the same judicial system
1. (3)Transfer based on convenience.
2. (4)Transfer based on wrong venue (does not pertain to convenience) 1406
3. Transfer in lieu of dismissal is ONLY allowed if there is a proper alternative venue within the US
4. Transfer of venue is available to BOTH P & D.

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 b. Rule 1404: Plaintiff or Defendant can move to transfer under this rule. - Challenges the case based on the
convenience of the parties.
c. Threshold requirement for 1404- convenience
i. 1404(a):
1. Applies when the transferor is a PROPER venue.
a. Change from one proper venue to another proper venue
i. MUST HAVE PJ AND VENUE = PROPER
2. Transferring based on convenience and the interest of justice to any other district where it
might have been brought (aka where defendant is subject to PJ)
a. Looking for where the witnesses are, evidence is, it makes more sense to move there
b. Looking for public and private factors – Where would it make more sense to have this
case?
3. Analysis: First look to the transferor state’s choice of law and conflict of law rules
a. Ex: Mississippi P involving a Cali D. Miss choice of law is Cali tort law. Case is transferred
from Miss to FL based on convenience. Fl MUST use Miss (transferor state) choice of
law, which is really Cali tort law to resolve the case.
d. 1404(b): Transfers may be given at the courts discretion from the division in which it was pending to any
other division in the same district.
e. 1404(c): Transfers are allowed within divisions.
f. The law of the new transferee court will apply the laws of the state of the original court, both the substantive
and procedural law.
g. Choice of Law Rules: When a case is transferred under 1404, all of the law of that (transferor) state goes with
it, including the choice of law rules. These are the rules that state what laws apply in the circumstances like
these.
h. Supplemental Jurisdiction and Venue Transfer: The transferee forum must still have personal jurisdiction over
all the supplemental claims.
8. Other Ways to transfer:
a. Rule 1406 - Cure or Waiver of Defects: When venue was in the wrong district (aka proper venue but if there
is no PJ then it is wrong venue) to begin with the court can either dismiss the claim, or they can choose to
transfer it to any district where it could have been brought .
i. Wrong venue example-- where you think a defendant resides but they don’t really reside there, so
there is not PJ and case will be transferred to a district where the D resides
1. Really a transfer for purposes of PJ not venue.
a. Where there is PJ there will always be proper venue.
ii. When transferring under 1406- the transferee law applies
iii. Wrong venue
1.
iv. Improper venue
1.
b. Rule 1407- Multi District Litigation
i. Allows a D or P to request that these cases in the US (diff districts) be presented to a committee that
decides for discovery purposes/pretrial to be transferred to 1 judge who will coordinate the entire
discovery process.
1. The individual cases are then remanded after the discovery and pretrial
2. Court may remand cross-claims, counter-claims, third-party claims back to the district before
the main claim is sent back to the district for trial and FH.
c. Rule 1631: Where there is a want of jurisdiction… Deals with when there is no proper jurisdiction, the court
shall in the interest of justice, transfer to any other court that it could have been brought
i. Deals with transfer and is a way to get all cases into one courthouse.
9. Forum non - Conveniens: (CL Doctrine that predates 1404) An appropriate forum may rid itself of jurisdiction if for
the convenience of the litigants and witnesses.
a. The party MUST show a tremendous amount of inconvenience. The inconvenience is so great that a court
can warrant a dismissal of a claim.

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 b. Usually occurs - when you cannot transfer bc there is only PJ is the place where the case was originally
brought. Cannot transfer bc there will be no other state with PJ.
i. If defendant can show extreme inconvenience and that no PJ in an alternative venue-- then
dismissal will be warranted.
c. Done at the discretion of the courts
d. Erie problem in relation to forum non conveniens
i. Whether to apply fed NC or state NC.
ii. Does the state NC determine the outcome of the case?
1. If yes, then ask whether the fed NC determines the outcome of the case in a different way
a. If yes, then Hanna exception (fed statute trumps state statute if it is in direct conflict)
b. If no, which probably will because the federal con-conveniens does not end the litigation
rather it merely transfers the claim under 1404 to a venue where it could have been
brought. Therefore does not determine the outcome of the case, and the federal non-
conveniens statute applies.

Removal
1. Removal Generally
a. Under statute you cannot remove from federal court to state court
i. Rather- case can be remanded to state court from federal court through objection
1. Objection - requisite needed to remove case
b. If you have case in state court, Defendant MUST file a petition for removal in fed court.
i. MUST notify state court for transmittal to the federal court.
c. Preemption Doctrine--a federal statute that preempts a case
2. Rules: §1441-1447
a. General – Its removable if the case meets federal SMJ
b. Principle - the state claim could have originally been brought in federal court.
c. Exception – You cannot remove a diversity case if any D is a citizen of the F.S.
i. Ex: FL(P) V. TX(D) (if filed in TX court, then D cannot remove the case)
d. ALL Ds must agree on removal
e. You can ONLY remove to the federal district that embraces the state court
f. Claim may NOT be removed 1 year after complaint is filed and that is often the commencement of the action
(R3).
i. Goes for amended pleading
1. Ex: P amends her complaint 390 days after commencement of claim (filed).
a. D now want to remove case for lack of SMJ bc the new claim gives rise to a new diversity
issue.
i. D has one year after the amendment
ii. HOWEVER-- If the diversity issue was already there before amendment, then
D is barred from removing case if it is after 1 year from original complaint.
g. D MUST remove within 30 days of service of the document and filing of complaint that makes the case
removable (Usually the original complaint)
i. Served w/ process, then within 30 days from that date D MUST file a bond& notice of removal in federal
ct for the district in which the state court action is pending. (set out statement for grounds of removal)
ii. How this works- First defendant is served and filed on 1/5/12.
a. Second defendant is served and filed on 1/10
2. Where does the 30 days measure start
a. Some say 30 days from last defendant.
b. Some say 30 days from first defendant. *CHANGE*
h. Once case is removed- Plaintiff has 30 days to OBJECT to removal- if granted then case can be remanded
back to state court
i. If NOT objected, then removal is waived
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 i. Challenging the SMJ of the removed case is ALWAYS allowed.
i. Never waived (P can always challenge it)
j. D can’t remove to state court
i. However, federal courts can remove to state court if the removal from state to fed destroyed SMJ.
ii. May through statute, remove a civil action from state court w/ territorial jurisdiction to federal court
1. Purpose- to make the option of suit in fed ct available to D as it is to Ps.
k. Ps sued on a counterclaim (who are now D to the CC) from removing the claim.
3. 28 USC §1441(a):
a. Only authorizes removal of state court actions of which the district courts of the US have original jurisdiction.
i. ONLY 1331 & 1332
ii. HOWEVER, if the otherwise non-removal case (aka does not have an independent basis for SMJ) is part
of the same case or controversy as the 1331 or 1332 claim, then the state law claim falls within the
supplemental jurisdiction of the ct and CAN be properly REMOVED pursuant to 1441
1. Unless D’s case
b. If the plaintiff could not have chosen to bring the action in federal court initially, the defendant cannot remove
it.
c. If a plaintiff brings a case in state court stating a federal claim under 1331 or 1332, the defendant can seek to
have it removed to federal court.
d. All defendants must agree on it.
e. D may only remove to the federal district court for the district or division embracing the place where such
action is pending.
f. A federal question in the defense is irrelevant, the plaintiff is the master of the complaint, (well plead complaint
rule)
i. Therefore P can NEVER remove case!!!
g. Artful pleading – Plaintiff cannot artfully plead, that is, he cannot disguise a federal complaint into a state
claim.
i. And vice/versa-- D cannot remove a case from state to federal court by disguising a state law claim
as a federal law claim.
h. The only court that can host a removed action - The federal district court for the district and division
embracing the place where such action is pending.
i. The usual federal venue rules do NOT apply in removed actions - authorizes transfer from the state ct system
to the federal court system within the same state.
i. A case may be removed, then transferred, then dismissed for forum non-conveniens.
4. 1441(b) Actions removable generally.
a. A defendant cannot remove a 1332 diversity claim to a federal court in the state where he resides.
b. If defendant is sued in his home state, he may not remove on the basis of diversity.
c. This applies even if there is more than one defendant, if one of the D’s is from the state, this would destroy the
possibility of removal.
d. There is no limitation for a 1331 federal question claim.
i. Shall be removed regardless of Ds citizenship or residence.
5. 1441(c) -Supplemental Jurisdiction and Removal: If the original claim is removed to the federal courts, then the
supplemental claims are moved as well.
a. There is no issue of personal jurisdiction here since its already been found because it was in state court.
6. 1445 non-removable actions/ Limitations: Some federal statutes restrict removal. Things like workers comp, civil
claims arising from railroads, carriers, violence against women act claims, etc.
7. 1447(e) -- if after removal the P seeks to join additional Ds whose joinder would destroy SMJ, the court MAY deny
joinder or remand the case back to st. court.
a. CTs. Will gladly remove and remand cases back to state courts.
8. 81(c):---- Deals w/ case proceedings after removal
a. repleading is not necessary after removal
i. a D who did not answer before removal MUST answer or file 12b M2D within the longest of these rules:
1. 21 days after receiving service or copy of initial complain stating claim of relief
2. 21 days after being served w/ summons

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 3. OR 7 days after notice of removal is filed
9. 1446 -- Removal procedure
10. 1466(a)- the state court complaint and answer (if it has been filed before removal) will be filed w/ notice of removal.
a. If any orders or preliminary injunctions have been filed prior to removal, they are STILL in effect in fed ct.
b. D MUST file a notice of removal in appropriate fed district together will ALL pleading, process, and other
papers on file in state action.
11. 1446(b) Notice MUST be filed within 30 days of receiving the plaintiff’s pleading in state ct.
a. once notice is filed and state ct is notified, the state ct LOSES control of the case automatically (regardless if fed
ct lacks SMJ)
i. state ct MAY NOT proceed w/ additional proceedings
b. a removal decision is NOT irrevocable
i. if P contends case is NOT within fed ct. SMJ or if D has not properly followed the removal requirement
(such as failure to remove within 30 days or failure to join all defendants)---- P may have case
remanded back to state court through an objection within 30 days of removal (motion to remand case
back to state ct)
ii. REMEMBER that a motion to dismiss for lack of SMJ may ALWAYS be made!!!

ERIE DOCTRINE
1. Generally:
a. Deals with when there is a choice between state and federal law.
b. Strives toward uniformity of outcome within a case, regardless or whether the case is in state or federal court.
c. The state and federal courts in the same state always apply the same substantive law, but sometimes apply
different procedural law.
d. GENERALLY comes up in diversity cases -- for 1331 Federal Questions, the federal law applies so there will be
no conflict.
e. Most federal laws incorporate state laws into it and avoid the Erie conflict altogether
i. Ex: R15, R4 etc.
2. How to Attack an Erie Problem (Hanna):
a. First determine if the state law determines the outcome of the case?
i. If yes, then look to the federal law
ii. If no, then there is no Erie problem and you apply the federal law
b. Second determine if by applying the federal law, there will be a different outcome.
i. If yes, then see if you can read the FRCP in such a way that it will not apply?
ii. If, not then there is NO conflict and you apply the FRCP bc the state law and the FRCP are identical.
c. Can you read the FRCP in such a way that it will not apply (meaning- can you read the state and federal law
so that you do not get a different result)
i. If yes, then No conflict and you apply the federal law
ii. If no, then there is a conflict between the federal and state law (Hanna exception)
d. If there is a conflict-- the conflict cannot be resolved so that the outcome under state law is the same as the
outcome would be under federal law.
i. Then the federal rule applies bc the Hanna Court decided that the rule was validly promulgated and
that it did not abridge, modify, or enlarge a substantive right, and therefore applies. “wink”
3. How to Attack an Erie Problem (Byrd): (EX- Judge v. Jury)
a. First determine if the state law determines the outcome of the case?
i. If yes, then look to the federal law (is there a constitutional right)
ii. If no, then there is no Erie problem and you apply the federal law (federal constitutional right)
b. Second, determine if by applying the federal constitutional right, there will be a different outcome?
i. If yes, then see if you can read the constitutional right in such a way that it will not apply.
ii. If no, then there is NO conflict and you can apply the federal law
c. Can you read the federal constitutional right in a way that it will not apply (meaning can you get the same
result)
i. If yes, then NO conflict and you apply the federal constitutional right.

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 ii. If no, then there is a conflict but due to the Byrd Exception, where application of the state law would
implicate a federal constitutional right, the federal constitutional right trumps the state law.
4. How to attack an Erie Problem (Erie Doctrine)
a. First determine if the state law determines the outcome of the case?
i. If yes, then look to the federal law
ii. If no, then there is no Erie problem and you apply the federal law
b. Second, determine if by applying the federal law, there will be a different outcome to the case?
i. If yes, then there is an Erie problem and you must determine if there is a way to read the federal law so
that the results are the same.
ii. If no, then there is NO conflict and you apply the federal law
c. Third, can you read the federal law so that it does not apply (meaning it will give the same result)
i. If yes, then NO conflict and you apply the federal law
ii. If yes, then see if it is a federal rule of civil procedure or if the state law is implicating some federal
constitutional right
d. Fourth is the subject matter (substantive law) an integral part of the federal court system, does it involve a
FRCP or an implication of a federal constitutional right?
i. If no, then APPLY state law
ii. If yes, then apply either the Hanna reasoning or the Byrd reasoning.
e. STATE -- THAT the application of the substantive law would mean that the party would not have won there
case or won there case --- substantive….
f. Example of this -- federal non-conveniens or state non-conveniens
i. Does the state law determine the outcome of the case?
1. No, because the state law merely states that the case is to be transferred to a separate
court and therefore by applying the state law it does not end the case and therefore does
not determine the outcome of the case.
ii. Therefore there is NO erie problem and the Federal non-conveniens applies.
g. Example of this is ------------ 20/30 day rule to answer complaint.
i. Does the state 30 day rule determine the outcome of the case
1. Yes, bc if the defendant does not answer within the 30 days, the defendant is in default
and a default judgment is entered against him.
ii. Can you read the federal 20 days rule in such a way that it will determine the outcome the same
as it would if the state 30 day rule applied?
1. No, bc the defendant has to answer within 20 days and if the defendant answers after the
20 days then the defendant is in default earlier than it would if the state law 30 day rule
applied.
iii.Therefore, the state and federal rules are in direct conflict and the federal rule of civil
procedure applies because the Supreme Court in Hanna decided that the FRCP was validly
promulgated and that it neither abridged, enlarged, or modified a substantive right.
5. Flynn’s 3 Hypo
a. When there is a FRCP and a SRCP which are IDENTICAL and MATCH (usually the case in most jurisdictions)
i. If they match- then there is no conflict- FRCP applies
b. State law and NO fed law (aka federal law is silent on the issue)
i. Ex: Walker Case
1. Can apply both the State law and the FRCP (both laws can survive so long as they are not in
conflict) --- state law MUST determine the outcome of the case, Otherwise it will not apply
c. FRCP and SRCP Conflict --- Then the Byrd exception applies, which states that federal law was implemented
by congress and the constitution (Supremacy Clause) and therefore the FRCP trumps.
i. ---- Apply the Hanna Analysis above.
6. In diversity Cases: federal courts must apply the law that would be applied by the courts of the state in which they sit.
They are not free to decide for themselves the “right” rule of consideration  their job in a diversity case is to apply
state common law. In broad areas (i.e. contracts, torts, property) where the law is largely judge made, state law reigns
supreme because there can be no other law. (Hypo 2)

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7. In the overwhelming number of diversity cases, Erie functions simply and effectively to determine the applicable
principles of substantive law.
8. Deciding what the state law is:
a. Federal court should give proper regard to decisions of trial and intermediate courts  but its job is to apply
the law as announced, or as it would be announced, by the state’s highest court.
b. State certification procedures – allows federal court with a state law issue to certify the issue to the state
supreme court.
9. Substantive Law: Federal Court in 1332 diversity cases will apply the state substantive law. Courts want results to be
the same as if it was held in state court for uniformity, predictability, avoid forum shopping, etc.
10. Procedural Law: In general, federal procedural law applies in federal courts, unless:
a. Outcome Determinative Test: If it affects the outcome of the case, it is substantive – Apply state law unless a
federal law is in direct conflict and the federal conflict cannot be read to give the same outcome as the state
law. -- then you must apply the Hanna/Erie Analysis.
11. The Rules Enabling Act  28 USC 2072
a. The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules
of evidence for cases in the US district courts
b. And such rules shall not abridge, enlarge, or modify any substantive right.
12. Reverse Erie Doctrine: State Court Using Federal Rules - If you are in state court arguing federal right, state rules
apply. Reverse Erie does not work.

PLEADINGS
2. Pleadings:
a. Rule 5: Service and Filing Pleadings
i. Orders, pleadings, discovery requests, motions, notices, etc. MUST be served an ALL parties to the
action
ii. Service is NOT required on parties in default
1. Unless it is a pleading asserting a NEW claim on the party (which will be governed by R4)
iii. If a party is represented by an atty- then service MUST be made on atty NOT party
iv. Service of pleading (NOT COMPLAINT) is done by
1. Personal service
2. Leaving it at dwelling or abode w/ person of suitable age who resides there
3. Mailing it to person’s last known address
4. Sending it via email if person consented in writing
5. Delivering by any means consented to
v. Filing
1. Any paper after complaint that is required to be served w/ certificate of service MUST be filed
within a reasonable time.
2. Disclosures under R26 (ID & Expert W) and discovery requests MUST not be filed until they are
used in proceeding or ct orders them filed.
3. Filed by
a. Delivering it to clerk or to judge (who accepts filing and who sends it to clerk.
b. A clerk cannot just refuse to file doc solely bc it is not properly prescribed.
b. Rule 7: Lists the pleadings allowed in federal court
i. Complaint
ii. Answer
iii. A reply to a counterclaim (designated a counterclaim)
iv. An answer to a cross claim (a counterclaim)
v. A third party complaint
vi. A third party answer.
vii. Motions -- usually in order to request an order from the court, a motion must be filed
1. Has to be in writing (unless made during trial/oral motion)
2. Grounds for seeking order
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 3. Relief sought
c. Rule 8a: What goes in a complaint:
i. (1) A short and plain statement of the grounds of the courts jurisdiction
ii. (2) A short and plain statement of the claim showing that the pleader is entitled to relief.
iii. (3) A demand for the relief sought.
d. Defenses- (Admission/Denials)
i. In responding to a pleading, the party MUST state defense and admit or deny each allegation by OC
1. Must deny/admit to the substance of each allegation in good faith
ii. Affirmative Defenses-- Flynn- even if you accept that all of the allegations are true, affirmative
defenses are still available.
1. In responding MUST affirmatively state any of the following:
a. Accord & satisfaction, assumption of risk, duress, estoppel, fraud, latches, contributory
negligence, resjudicata, S.O.F, S.O.L, collateral estoppel, payment, and Waiver etc.
e. Rule 8d: Pleading to be simple, concise and direct.
i. Flynn notes-- a person pleading has the burden of production or coming forward w/ evidence so
that a reasonable jury/judge can rule in her favor.
1. If you do not comply, then failed and the case is subject to dismissal. Burden of proof to reach
burden of persuasion. (preponderance of the evidence)
f. Rule 8e: -- Can plead 2 alternatives (claim/defense) and inconsistencies
i. you can allege in the same cause of action 2 things, like battery and negligence even though they are
inconsistent. Gives you an alternative if one does not work.
g. Rule 9b – Alleging fraud or mistake  Must give details, with particularity
h. Rule 10a: Caption.
i. Name of the court; the title of the action; the name, address and telephone number of the attorney
presenting the pleading; and a brief designation of the nature of the paper (i.e. complaint, motion to
dismiss).
i. Rule 10b: Body of the pleadings  mandatory to set forth allegations in separately numbered paragraphs.
i. Three principal considerations
1. Separate claims of causes of action must be stated separately
2. Each paragraph should deal with a limited subject
3. Allegations unlikely to be contested should be stated in separate paragraphs from allegations
likely to be contested
j. Rule 11(a): All pleadings, written motion, and other papers be signed (subscribed) by the party or her
attorney (at least 1 in the atty’s name). (Remember that these disclosures do NOT pertain to discovery
rules)
i. MUST- state signer’s address, number, and email
ii. Court MUST strike pleading that is not signed unless immediately fixed
iii. Does not need a verified pleading unless a rule or statute specifically states otherwise, a pleading need
not be verified or accompanied by an affidavit
iv. Pleadings are warranted by existing law and have evidentiary support
v. Sanctions may be given if a party violates any of R11 rules.
k. Rule 11(c) Sanctions:
i. Response to frivolous lawsuits.
ii. “Safe Harbor” - BUT the offending attorney is given 21 days after service to correct it or withdraw it
before motion for sanctions may be made to the court.
iii. Motion for sanctions made separately from any other motion (Must be served under R5)
iv. Must describe the specific conduct that allegedly violated 11(b)
v. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically
described in the order has not violated Rule 11(b).
vi. Ct. may impose offending party with atty’s fees and costs to be paid to OC
vii. This rule DOES NOT pertain to disclosures and discovery requests under R26-37.
3. Burdens: If you have the burden of pleading, you also have the burden of persuasion and production.

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 a. Burden of Pleading: Rule of thumb: He who pleads must prove. Plaintiff has burden in the complaint,
defendant in a counterclaim, third party in a cross claim. Whoever is bringing the complaint.
b. Burden of Proving an affirmative defense – The defendant.
c. Burden of Proof: Follows the burden of pleading, it is on the party bringing the claim.
d. Burden of Production: Usually follows Proof and Pleading unless there is a legal concept that says otherwise,
like Res Ipsa.
e. Burden of Persuasion: both parties have the Burden.

4. Response to the Pleading: Answer or Motion.

a. Answer: Reply to each answer in order.
b. Rule 8(b): 3 ways to respond – Admit, Deny, and Lack sufficient information.
i. Failure to deny is treated as an admission
c. Rule 8(d)(3) – Inconsistent claims or defenses: A party may state as many separate claims or defenses as it
has, regardless of consistency.
d. Counterclaims or Crossclaims: If the D wants to counterclaim or crossclaim. It would be a separate
paragraph in the answer - By way of further response the defendant brings the following counterclaim. Then
the paragraphs for the complaint.
e. Rule 8(c), Affirmative Defense:
i. List major affirmative defenses -- If don’t plead affirmative defense  risk waiver of those defenses.
ii. If you are right, you win  i.e. statue of limitation
iii. This is also where you preserve your 12b2-5 defenses.
1. 12b1,6,7 do not need to be preserved they can be brought at any time
f. Rule 12 - Defenses and Objections, when and how presented. (Motion to Dismiss)
i. Rule 12a When Presented
1. Rule 12a1A: The answer shall be filed within 21 days after service of the complaint.
2. Rule 12a2: If a party is served with a counterclaim in an answer, they have 21 days to answer
or counterclaim back.
3. Rule 12 a3A: If the gov’t is served with a complaint, they have 60 days to comply.
4. Rule 12 a3B: A gov’t agent has 60 days to reply to an answer with a counterclaim
5. Rule 12a4A, B: If the court grants or denies a motion for a more definite statement, then the
responsive pleading shall be served within 14 days after the courts motion or service of the
more definite statement.
ii. Rule 12b How Presented: An alternative to answering the complaint  need not answer the
complaint until the motion is decided  If prevail on the motion, may never have to answer. This filing
is optional. Every defense shall be asserted in an answer, except the following may be made by motion
or preserved in answer:
1. (b)(1) Lack of subject matter jurisdiction
a. fatal to P’s claim
2. (b)(2) Lack of personal jurisdiction
3. (b)(3) Improper venue
4. (b)(4) Insufficiency of process
a. attacks the manner in which the complaint was served
5. (b)(5) Insufficiency of service of process
6. (b)(6) Failure to state a claim on which relief can be granted.
a. Motion to dismiss admits the truth of the allegations for purposes of the motion only
and the court must treat them as true when ruling.
i. Defendant retains the right to challenge the factual sufficiency of the evidence
supporting the complaint if the challenge to legal sufficiency fails.
1. Court required to construe in the light most favorable to the pleader.
b. EX: - P filed a claim for IIED. State law requires an additional physical contact
requirement. P proves all elements for IIED but not the physical contact requirement.
Court will grant motion to dismiss bc P cannot receive relief.

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 i. However, a P whose claim will be dismissed is given a chance to amend the
complaint before case dismissed to state a compensable claim. (21 days to
amend)
7. (b7) Failure to join an indispensable party under R19
a. Court will order party to be joined if possible.
8. Rule 12b 4-7 are curable defects that MUST be fixed before claim can proceed
a. R12b 1-3 - are fatal to the claim.
i. If party cant be joined - then ct will determine whether case can proceed
without party. If not then, the motion will be granted and the indispensable
party dismissed.
iii. Rule 12c Motion for judgment on the pleadings. After the pleadings are closed, a party may move
for judgment on the pleadings. The difference between 12b6 and 12c is that 12c is after pleading has
closed. 12b6 is brought in the first responsive pleading before an answer is filed or is in the answer.
iv. Rule 12d Preliminary Hearings: The defenses listed in 12b1-7 and the motions in 12c shall be heard
before the trial.
v. Rule 12e: Motion for a more definite statement. If the complaint is vague or ambiguous that the D
cannot be reasonably required to frame a responsive pleading then D may move for a more definite
statement. If the motion is granted and not complied with within 14 days, the court may strike the
pleading.
vi. Rule 12f Motion to Strike: Authorizes motions to strike directed to redundant, immaterial,
impertinent, or scandalous matter in the complaint.
vii. Rule 12g Joining Motions – There are certain motions that need to be brought together or you
have waived them.
1. Right to join - A motion under this rule may be joined with any other motion allowed by this
rule.
2. Limitation on Further Motions - Except as provided in Rule 12(h)(2) or (3), a party that
makes a motion under this rule must not make another motion under this rule raising a defense
or objection that was available to the party but omitted from its earlier motion.
viii. Rule 12(h) Waiver or Preservation of Certain Defenses:
1. 12(b) 2, 3, 4, 5 – Must be put in your first rule 12 response or else they are waived. Whichever
you do first, answer or motion, must be in there.
2. 12(b) 6, 7 – Can be raised any time through trial. Cannot raise them for the first time on appeal.
3. 12(b) 1 – NEVER waived. Can be brought up at anytime during the case.
g. Waiver of Defenses under rule 12:
i. 12(b)(2)-(5) defenses will be waived if not raised in the defendant’s first response to the complain
5. Amendments & Supplemental Pleadings R15
a. Amendments before trial -- a party may amend its pleading ONCE as a matter of course within 21 days (so
long as it is before a responsive pleading aka an answer)
i. P who serves process on D has within 21 days to amend complaint so long as D has not answered.
1. P cannot amend complaint after D has responded.
2. Once D has responded P must have courts permission to amend.
3. Goes for - counterclaim, cross-claims, third party complaint, etc (so long as no response has
been received) only AMEND a pleading like answer and complaint
ii. Within 21 days after service of a responsive pleading (aka answer) when responsive pleading required
1. Remember an answer does NOT require a responsive pleading.
iii. Or within 21 days after service of a 12b motion when responsive pleading is required
1. P has 21 days to amend complaint in order to avoid dismissal
iv. The above is all done w/o the court
v. If the party wants to amend after the 21 days before responsive pleading received-- then NEEDS the
courts permission.
vi. If the party wants to amend AGAIN, then needs courts permission -- (court will consider the time
before party decided to amend and whether or not it will cause prejudice before allowing party to re-
amend)

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 vii. Any REQUIRED response to an Amended pleading MUST be made within the time remaining to
respond to the original pleading or within14 days after service of the amended pleading. (Whichever
is last)
1. Example- If P files a complaint and decides on the 15th day (which means there are 6 days left
for OC to answer) that she wants to amend the complaint, then the response to the amended
complaint must be made within 14 days after service of the amended complaint.
a. NOT the original 6 days.
2. Example 2- If P filed complaint and on the 3rd days decides to amend the complaint. Then the
response to the amended complaint is due within 18 days. NOT the 14 days.
b. Amendments during/after trial - If at trial a party objects to evidence claiming that the evidence is not
within the issues raised in the pleadings, then the court MAY allow the pleadings to be amended.
i. Flynn notes-- P brings a negligence claim and during the course of the presentation, evidence is
presented that would support an IIED claim, then court MAY allow the original claim to be amended to
include the IIED claim.
1. MUST object to evidence otherwise you are consenting to it (impliedly/expressly)
a. So if evidence goes before a person and it is not objected to, you are screwed and the
court may use such evidence to amend complaint to add claim.
2. Must look at the timing and prejudice of the amendment.
c. Relation back of Amendments (usually to comply with SOL)
i. Flynn notes- P files a K claim. 2 days before the SOL runs, the person gets info evidencing a breach of
K. Person wants to amend the pleading to include breach of K. But the SOL has run. The ? becomes, will
the court relate the new COA that has been amended to complaint relate back to original claim?
1. R15(C)(1)(a)- the law of the state to which the fed court sits provides the applicable relation
back law. (does the state court allow relation back)
a. In analysis… make sure to note that the Legislatures avoid the Erie problem here
because they directly implement the state law into the FRCP, thus making the state law
part of the FRCP and therefore there is NO conflict. (BC REMEMBER- the other 2
sections are used for LIMITED circumstances)
2. R15(C)(1)(b) the amendment asserts a NEW claim/defense that arose out of the same
transaction or occurrence set out in the original claim. (common nucleus of operative facts)
a. (1367 supplemental jurisdiction applies here)
i. ex- P adds a state tort claim that arose out of the same transaction or
occurrence as the original fed claim. Almost always “same transaction or
occurrence” claims will be part of the same case or controversy for 1367(a)
purposes.
3. OR R15(C)(1)(c) the amendment changes the party or the naming of the party against who a
claim is asserted if 15(C)(1)(b) is satisfied, and if within the period provided for by R4M (new
person must have had sufficient notice within 120 days) for service, the party be brought in by
amendment if:
a. D received notice of the action within 120 days and that D will not be prejudices in
defending the merits
b. AND knew or should have known that the action would have been brought against her,
but for the (reasonable) mistake (if there is no mistake then it will not relate back)
i. Sufficient notice- look to see if defendant that was named said something to D
it was intended for, whether it is a close relationship, or business relationship.
ii. Unnamed party- is not reasonable and does NOT apply, bc the party has to
take reasonable measures to figure out who it wants to sue from the beginning.
iii. If person misleads P into naming a wrong D, or prevents P from discovering the
true identity of D, then the D can be estopped from asserting a SOL (affirmative)
defense.
d. Supplemental Pleadings R15D  on motion and reasonable notice, the court MAY allow a party to serve a
supp pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to
be supplemented.

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 i. Court may allow supplemental pleading.
ii. Flynn notes-- supplemental pleadings add more claims to the original claim as opposed to amending
the original claim for a new claim.
1. Ex: employee discrimination case against employer. Multiple COAs due to multiple retaliations.
Such COAs can be included as supplemental pleadings bc they arose out of diff COAs.

JOINDER OF PARTIES AND CLAIMS

1. Joinder of Claims and Remedies: If it starts with C its between existing parties. If it starts with I, joining someone
new.
a. Rule 18(a) –-> authorizes a “pleader” to assert as many unrelated claims she has against OC
i. The P can join all the claims she wants  No limit
ii. Do not need to be related
iii. BUT - MUST assess SMJ
b. Rule 13 Counterclaims and Crossclaims
i. R13- authorizes a defending party in a suit to assert claims back against a party who has claimed
against him.
ii. Rule 13a – MUST assess SMJ after.
1. Compulsory counterclaims
a. MUST state all claims that arises from the same transaction of occurrence as P original
claim(means- whether the CC is logically related to the existing claim against D/CClmt).
If this rule applies, you MUST assert that claim in THIS case, cannot sue separately. Lose
it if you don’t use it here – cant use the claim in subsequent suit:
i. By definition – every compulsory claim satisfies supplemental because arises
out of same transaction, which almost always satisfies “part of same case or
controversy” requirement for 1367(a)
1. Means- claims derive from a common nucleus of operative facts
a. “single operative fact that gave rise to both claims” “overlapping
facts necessary to prove COA”
ii. Never mention supplemental until you show no diversity or no federal question
iii. The claim can’t stand on its own.
b. Exceptions – 13(a)(2):
i. A counterclaim need not be filed in the current proceeding if it is already
pending as a claim in another proceeding.
ii. The counterclaim need not be filed if the opposing party has not obtained in
personam jurisdiction over the party who has a potential counterclaim.
c. CC- MAY be amended so long as it is amended within 21 days before responsive
pleading is received.
iii. Rule 13 b CC are ALWAYS permissive UNLESS they meet the compulsory test (can be plead or
reserved for future litigation- however look out for resjudicata)
1. Permissive Counterclaim: May state as a counterclaim any claim against an opposing party
that does not arise from the same transaction or occurrence as the plaintiffs claim. Although
Pcc are not usually allowed in through supplemental jurisdiction…
a. A Pcc may be brought in under 1367a “part of same case or controversy” bc it is a set off
(D’s counterclaim against P that is independent of P’s claim. If you look at claim there is
no common nucleus of operative facts, however the reason for bringing claim is to set
off any liability.
b. Also a Pcc can get in through a less stringent test requiring only a loose factual
connection to the P’s original claim. Loose factual connection is usually the parties and
is therefore usually enough to satisfy the “part of same case or controversy”
requirement in 1367a.
iv. 13g CrossClaim: Against a co-party NOT opposing party.
1. Can ONLY have if multiple parties.
2. MUST arise from the same transaction or occurrence of the underlying case
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 3. When there is jurisdiction on a cross claim because of the original case  if the original case is
dismissed, the cross claim still has jurisdiction.
a. Will not be heard if the original case is dismissed bc of lack of SMJ
4. REMEMBER-- a response to a cross claim is a counterclaim
5. Cross claim may include a claim that the co-party is or may be liable to the cross clmt for all or
part of a claim asserted in the action against the cross clmt
a. This will NOT be an impleader bc the parties are already parties to the original claim
and therefore a cross claim
b. Ex: P(Miss) v. D1(FL)

1332 D2(TX)

c. D1 cross claims against D2. (must arise out of same transaction or occurrence)
i. If yes, then ok
ii. If no, then not ok
d. If D2 wants to now bring a claim against D1 it is NOW a counterclaim NOT a cross claim
even though it is on the same side of the v.
i. WHY? Bc the cross claim is treated like a claim and now the D to the cross claim
becomes a P to the counterclaim against P to the cross claim/D to the
counterclaim.
ii. Important bc if it is a counterclaim- Must determine if it is compulsory or
permissive. Bc if compulsory (arises out of same transaction or occurrence). It
must be brought immediately otherwise party looses it.

c. Rule 42 Severance and Consolidation –

i. If actions involve common question of law or fact, court may:
1. Join any or all matters at issue
2. Consolidate actions
3. Issue any other orders to avoid cost or delay
ii. To avoid prejudice, expedite and economize  court may order separate trial
iii. If a 1332 claim- remember each case being severed MUST still have independent basis of SMJ, if NOT,
then the P may be screwed.
1. Ex: P has three claims against 1 D which all amount to $80K. If D tries to sever them, P’s cases
will no longer have I SMJ and cases may be remanded to state court for further proceedings

2. FRCP 17 --- Standing for purposes of civil lawsuits

a. 17(a)- Real party in Interest/
i. the person bringing the law suit MUST prove injury in fact for herself
1. Unless:
a. Person lacks capacity (minor/incompetent)
ii. People who may sue on their own w/o needing to join a person whose benefit the action is brought
1. Executors, administrators, guardians, bailee, trustees, & parties authorized by statute.
iii. Joinder of the real party in interest
1. Court may NOT dismiss an action for failure to prosecute in the name of the real party in
interest until (after objection) a reasonable time has been allowed for the real party to join or
be substituted in the action
b. 17(b) - deals with corporations. The laws of the state where the corp’s primary place of business is defines a
corporations capacity to be sued.
i. Ex: FL allows corps to sue if they are registered corps. But allows anyone to sue a corp in FL even if the
corp is not a registered corp in FL.
3. Joinder of Parties:
a. Rule 19. Required Joinder of Parties – Compulsory Joinder
i. 19(a) Persons Required to Be Joined if Feasible.
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 1. Analysis –
a. First - 19(a) - If any one of them is satisfied  the absent person is to be joined if
feasible: (19(a) means- necessary party)
i. Without the absentee, the court cannot accord complete relief among the parties
1. Remember- just bc someone is liablxe to D does NOT mean court
cannot grant party full relief from D. (this is why jointly liable tortfeasors
are never necessary & indispensable)
ii. The absentee’s interest may be harmed if she is not joined
iii. The absentee’s interest may subject the D to multiple or inconsistent obligations
b. Second – Is joinder feasible?
i. Feasible if there is PJ and if bringing in the absentee does not mess up diversity
c. Third, If not feasible but indispensable – 3 Options/R19(b)
i. The court should determine whether the case should proceed w/o joinder of
party (meaning the party is not indispensable) or the case should be dismissed
(meaning the party is indispensable)-
ii. Proceed without the absentee OR
iii.Dismiss the case – Call absentee indispensible and motion to dismiss under
12(b)(7) failure to join an indispensable party (within 21 days)
iv. Go forward but try to craft the judgment to provide appropriate relief to the
parties before the court despite the inability to join the absentee
v. FRCP 19(b) Factors to asses when making decision:
1. (1) the extent to which a judgment rendered in the person's absence
might prejudice that person or the existing parties;
2. (2) the extent to which any prejudice could be lessened or avoided by:
a. (A) protective provisions in the judgment;
b. (B) shaping the relief; or
c. (C) other measures; (meaning can you formulate the case
another way/join the party another way, etc)
3. (3) whether a judgment rendered in the person's absence would be
adequate; and
4. (4) whether the plaintiff would have an adequate remedy if the action
were dismissed for nonjoinder (always can they can go somewhere else)
2. 19(a)(2) Joinder by Court Order - If a person has not been joined as required, the court must
order that the person be made a party.
3. 19(a)(3) Venue - If a joined party objects to venue and the joinder would make venue
improper, the court must dismiss that party.
ii. 19(b) – If proceeding without the absentee does not pose any of the problems detailed in Rule
19(a)(1)  no need to bring the absentee into the case. If the absentee should be joined, and
there is no jurisdictional impediment to doing so  made a party.
iii. R19 and Supplemental Jurisdiction
1. 1367aclaim must be part of the same case or controversy (common nucleus of operative
facts)
2. 1367b- Prohibits joined plaintiffs under R19 from bringing claims against any party or non-
party that will destroy SMJ.
a. As well as prohibits the original plaintiff from bringing claims against any person that
will destroy diversity.
b. Rule 20(a) Permissive Joinder –
i. Does not require parties to be joined when the criteria are met, it permits joinder
ii. Check SMJ BUT because of the relatedness requirement – already have supplemental jurisdiction.
iii. P may join other Ps or Multiple Ds when the claims arise from the same transaction or occurrence and
raise at least one common question of law or fact
1. Ex- common issue of law

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 a. P beats up K and P beats up G. (Not the same facts but will deal with the same issue of
law)
2. Ex- common issue of fact
a. F breached duty to D and breached K with D.
i. Same issue of fact bc dealing with same person, D, but different issue of law.
iv. Permissive Joinder and Supplemental Jurisdiction
1. If it is permissive then it must have arisen from the same transaction or occurrence, which is
usually always enough to satisfy “part of same case or controversy”. (bc they derive from a
common nucleus of operative facts)
a. Remember that 1367(b) does not prohibit Parties joined as Ps under R20 from suing
whomever they choose even if it destroys diversity.
i. However, it does prohibit the original P from suing a party to which diversity
will be destroyed.
v. The court may issue orders, including an order for separate trials, to:
1. Protect a party against embarrassment
2. Delay
3. Expense
4. Or other prejudice that arises from including a person against whom the party asserts no claim
and who asserts no claim against the party.
c. Rule 21 Misjoinder and Non-Joinder of Parties: Misjoinder of parties is not a ground for dismissing an
action.
i. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may
also sever any claim against a party.
d. Rule 14 3rd Party Claims: HAVE to assess SMJ on EVERY claim
i. Defendant can bring a 3rd party defendant to shift liability (indemnity or contribution. Insurance
companies, joint tortfeasors)
1. The impleaded party only needs to be potentially liable to the D for all or part of the P’s claim
against the defendant
2. The D MUST, by motion, get the court’s approval to file a 3 rd party claim against a party if it
brought after 14 days of service of D’s answer to P.
a. If within 14 days from service of answer, then court can serve a 3 rd party complaint
against a person w/o court’s approval.
ii. The 3rd party defendant must assert any defense against 3 rd part plaintiff whether by preservation in
answer or R12b motion within 21 days of receipt of 3 rd party complaint.
iii. Must assert any counter claim against 3rd party plaintiff if it arises out of same transaction or
occurrence (R13a) or may bring a permissive counterclaim (R13b) or cross claim against another 3 rd
party D (R13g).
iv. 3rd party D may bring a claim arising out of same transaction or occurrence that is SM to P and D’s/3 rd
party P original claim.
v. The TPD may be liable to the D for the P’s claim
vi. TPD has never been a party before  Bringing in someone new
1. And therefore the 3rd party claim is a completely new claim.
vii. 14(a)(3) – The P can assert a claim against the 3rd party defendant so long as it does not destroy
diversity. If P and 3rd party D are from the same state, then there is no independent basis for SMJ and
1367b will prohibit P from bringing claim against D.
1. 3rd party D must then assert any defense (12b/preserve) any cc (13a) and may assert any pcc
(13b) or any crc(13g).
viii. 14(a)(2)(d) – The 3rd party D can also assert a claim against the P
ix. Rule 14(a) and Rule 18(a) – Once a proper 14(a) 3rd party impleader claim is made, the 3rd party
plaintiff can add unrelated claims against the third party defendant under rule 18(a)
x. 1367(b): There is no supplemental jurisdiction over plaintiff’s claim against the third-party
defendant. UNLESS P directly sues 3rd party D…. bc the impleaded claim is treated separate.
xi. Impleading a third party defendant does not affect the court’s jurisdiction over the original claim.

27
 xii.The third party is also disregarded in determining whether venue is proper.
e. Rule 22 Interpleader:
i. Form of joinder that is open to a person who does not know to which she is liable to, if liable at all.
1. Forces all clmts to proceed against her in 1 lawsuit.
ii. Flynn- just bc party chooses to invoke statutory interpleader does not mean they are admitting to
liability, RATHER party just puts funds into ct to determine whether they are liable
iii. 22(a)(1) By a Plaintiff.
1. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as
defendants and required to interplead. Joinder for interpleader is proper even though:
a. (A) The claims of the several clmts, or the titles on which their claims depend, lack a
common origin or are adverse and independent rather than identical; or
b. (B) The plaintiff denies liability in whole or in part to any or all of the clmts.
iv. 22(a)(2) By a Defendant.
1. A defendant exposed to similar liability may seek interpleader through a cross claim or
counterclaim.
v. This is not a class action.
vi. Usually deals with a will and trust cases and with life insurance companies.
vii. An entity holding property in dispute gives it to the court for the others to fight it out.
viii. This is difficult because everything applies – personal, subject matter jurisdiction, and venue on
each claimant.
ix. So everyone uses 28 § 1335 (Defines federal court’s original jurisdiction over R22 claims)
1. Which says that the claims only have to be $500 dollars or more and that diversity is
determined by any two claimants being diverse.
a. Must deposit money into the ct for determination of liability
2. This is the exception to complete diversity and the $75,000 rule.
x. § 2361 -- provides nationwide service of process in an interpleader, this means there is nationwide
jurisdiction.
xi. §1396 - Multiparty/Multiforum Jurisdiction
1. D.CTs shall have original jurisdiction over claims w/ minimal diversity that arise from a single
accident where more than 75 ppl have died.
xii.§1397 interpleader actions may be brought in any district where one or more of the claimants resides.
xiii. Flynn notes-- there are 2 different procedures
1. R22- almost never used bc P is interpleading every single person and must have PJ over all ds.
a. Very difficult to do.
b. Must have complete diversity over all Ds
2. §1335- §2361 allows for nationwide service of process
a. amount in controversy need only be $500
b. Minimal diversity required (at least 2 Ds or 2 Ps need be diverse/ and does not have to
be diverse across the v. )
4. Rule 24 Intervention: Absentee joining herself

a. Intervention is not an automatic right, it must be done through timely motion and may be denied by
court.

b. 24(a) - As Of Right: Assess SMJ

i. A person must be allowed (through a timely motion R5) to intervene in a case if:

1. US Statute (party called intervener) OR

2. Can intervene if three conditions met:

a. Absentee claims interest relating to subject matter of action

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 b. Absentee’s interest may be impaired if not allowed to join

c. Absentee’s interest not adequately represented by parties

ii. Court can deny if:

1. The intervener is likely to make same arguments as original parties

a. Applicant must show that they bring something new to the action that would have
otherwise been ignored but for the intervention.

iii. Motion to cure amiqus-- particular kind of lawsuit involving a particular issue to which you believe
you have a stake in.

c. 24(b) - Permissive: Assess SMJ

i. Much broader than (a). A person may be allowed to intervene (through a timely motion R5) if:

1. A US Statute says they may

2. The persons claim/defense shares a common question of fact/law.

d. 24(b)(3) – Delay or prejudice

i. In exercising its discretion, the court must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties' rights.

e. Supplemental jurisdiction and R24

i. If there is no independent basis of SMJ, must look to 1367a “part of same case or controversy”

1. Then if 1332, look to 1367b.

a. 1367b prohibits any intervening plaintiff from bringing any claim against any party or
non-party that would destroy diversity.

b. As well as any original plaintiff from bringing a R24 supplemental claim that destroys
diversity.

DISCOVERY

1. Burden of Proof
a. Loss results from P’s failure to meet his burden of proof.
b. The burden of production
i. The P who fails to produce evidence on an essential element of his claim has failed the burden of
production. (establish P’s prima facie case)
1. MUST produce sufficient evidence on those issues to enable a reasonable jury (or judge) to find
for him absent rebuttal evidence from D.
ii. Once this is produced by P, the burden shift to D to produce sufficient evidence to meet P’s evidence
(otherwise D can risk a Judgment as a matter of law/DV)
c. The burden of persuasion

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 i. P who fails to convince the trier of fact to some pre-established degree of certainty (preponderance of
the evidence/greater weight of evidence) of the facts necessary to his claim, has failed his burden of
persuasion.
ii. Basically is the juror convinced by the P’s evidence or not…
2. FRCP 26 - party’s duty to disclose.
a. Anlysis- look to see whether the information is within the broad scope of R26, and then whether one of the
exceptions to discovery of relevant information applies.
b. Rule 26a Initial Disclosures: Must produce certain info even though no one asked for it:
i. Must identify people with discoverable info that you might use at trial  anyone that you know of
ii. Must give a description or copies of documents and electronically stored info (ESI) and tangible stuff
that might be used at trial
iii. P has to give calculation of damages
iv. D has to tell about insurance coverage
v. MUST BE DONE WITHIN 14 DAYS AFTER THE PARTIES R26 meet and confer. (unless party objects
during the conference that IDs are not appropriate and states objection in the discovery plan)
vi. For parties who have been joined after the meet and confer, ID must be made within 30 days after
service or joinder (whichever earlier)
vii. Parties MUST make ID based on what is reasonably available at the time
c. Rule 26(a)(2) Disclosure of Expert Testimony: A party shall disclose the identity of any person who may be
used at trial to present evidence
i. MUST be accompanied by written report prepared and signed by witness containing statements of
opinions made and facts and data considered, exhibits, & the witness’s qualifications and publications.
ii. (a)(2)(c)- E.W. who do not provide a written report must disclose the S.M to which expert will testify
on along w/ a summary of the facts and opinions that will be used.
iii. These disclosures MUST be made no later than 90 days before trial
1. or if intended to rebut OC’s expert witness, then within 30 days from OC’s EW disclosure.
iv. (a)(2)(e)- Must supplement disclosures in a reasonable time when required.
v. (a) (3) Pretrial disclosures (additional disclosures) MUST be made at least 30 days b4 trial.
d. Rule 26(a)(4): All discoveries made to other parties must be made in writing, signed and served.
e. Rule 26b1: Can discover anything relevant to a claim or defense
i. Basically means  reasonably calculated to lead to admissible evidence
f. Rule 26b2: Proportionality test - Limits on discovery, court may limit frequency or extent of use of the
discovery methods upon motion or it’s own initiative if it determines that:
i. It’s unreasonably burdensome, cumulative, or duplicative or obtainable from some other source more
convenient
ii. The party seeking discovery has had ample time to obtain the info on their own
iii.The burden or expense of the proposed discovery outweighs the benefit
g. Rule 26 (b) (3) - Work Product
i. Trial prep materials
ii. Definition: Material prepared in anticipation of litigation
1. NOT routine stuff
iii. If it is work product  it is NOT discoverable
1. The point is to avoid a free rider problem
iv. Way to override  You can get access to some stuff if you show:
1. Substantial need
2. The info is not otherwise available
v. Some work product absolute:
1. Mental impressions
2. Conclusions, opinions, and legal theories
vi. It does not have to be generated by a lawyer  can be generated by a party or ANY rep of a party
h. Rule 26 (b) (4) Expert Witnesses There are certain times when you must disclose the name of an expert that
you are using and what was said by the expert.
i. 26(b)(4) Trial Preparation: Experts.

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 1. (A) Deposition of an Expert Who May Testify – After disclosure, testifying experts may be
deposed  because experts cannot be properly cross-examined at trial without the opportunity
to conduct discovery concerning their opinions and the bases for those opinions.
2. (B) Trial-Preparation Protection for Draft Reports or Disclosures – Rules 26(b)(3)(A) and
(B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the
form in which the draft is recorded
3. (C) Trial-Preparation Protection for Communications Between a Party’s Attorney and
Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s
attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the
form of the communications, except to the extent that the communications:
a. (i) relate to compensation for the expert’s study or testimony;
b. (ii) identify facts or data that the party’s attorney provided and that the expert
considered in forming the opinions to be expressed; or
c. (iii) identify assumptions that the party’s attorney provided and that the expert relied
on in forming the opinions to be expressed.
4. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation or to prepare for
trial and who is not expected to be called as a witness at trial. But a party may do so only:
a. (i) as provided in Rule 35(b); or
b. (ii) on showing exceptional circumstances under which it is impracticable for the party
to obtain facts or opinions on the same subject by other means.
i. Rule 26c - Protective Orders.
i. 26(c)(1) In General. A party or any person from whom discovery is sought may move for a protective
order in the court where the action is pending — or as an alternative on matters relating to a
deposition, in the court for the district where the deposition will be taken. The motion must include a
certification that the movant has in good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense
1. Flynn notes- Proactive protective order- party says it is protected and therefore never
responds, in which OC files a motion to compel and then party must get protective order from
court in order to not have to disclose information.
ii. 26(c)(2) Ordering Discovery - If a motion for a protective order is wholly or partly denied, the court
may, on just terms, order that any party or person provide or permit discovery.
iii.Rule 26(d) Timing and Sequence of Discovery - can do discovery in any order you want (timing and
sequence of discovery) except under 26(a)(1)(E), a party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f) (which is 21 days before scheduling
conference). Unless by motion of the court for some reason.
iv. Rule 26(e) - duty on the part of the party responding to supplement or correct the disclosure or
response to include information thereafter acquired. Requires an attorney who has provided discovery
or disclosed material and who has determined that there is additional information, to amend or
supplement their original disclosure. There are 2 circumstances when you must amend (in a timely
manner):
1. Incorrect or incomplete info: If the party realized in some material affect that the information
disclosed is incomplete or incorrect.
2. When an interrogatory, request for production, or request for admission, if any of these are
found to be incorrect.
3. Expert Witness- the party has a duty to supplement any info given in the report or during
depo. Said disclosures MUST be disclosed by the time the party’s pretrial disclosures are due.
a. (30 days before trial)
j. Rule 26f Conference of Parties- requirement that the parties must meet and confer and try and work out a
discovery plan (which is due within 14 days after meet and confer)

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 i. At conference --- The parties MUST consider basis for claim, defense, possibility of settling case,
arrange disclosures. The attys are jointly responsible for arranging conference, for attempting in good
faith to agree on the discovery plan, and for submitting a report outlining the plan no later than 14
days after conference.
ii. The plan should contain:
1. Any proposed changes to the mandatory disclosures required under rule 26(a)
2. Any proposed changes in limitations on discovery
3. Description of the parties’ views on the subjects and timing of discovery.
a. The attorneys and all unrepresented parties have joint duty to schedule a pretrial
conference as soon as practicable or no later than 21 days after discovery
conference is held or a 16(b) ordered discovery conference is held, to consider the
nature and basis of their claims and defenses and the possibilities of prompt settlement.
k. Rule 26g: Signing disclosures and discovery requests, responses, and objections,
i. Any disclosure or discovery request, response, or objection MUST be signed by at least 1 atty of record
in atty’s own name or by party if pro se.
1. MUST state signer’s address, email, number. (by signing, atty is certifying that the above has
been done to the best of person’s knowledge, inform and belief….)
ii. Other parties have no duty to act on unsigned documents. Ct. MUST strike it unless a signature is
promptly supplied.
iii.If certification violates this rule w/o substantial justification, then the ct MUST impose appropriate
sanction on signer, party, or both.
3. FRCP 16--- Pretrial conference/scheduling management
i. Purpose- the ct may order the attys to appear for one or more PT conferences for:
1. Expediting disposition of the case
2. Discouraging wasteful pretrial activities
3. Facilitating settlement
4. Improving the quality of trial through preparation
ii. Scheduling--- Judge MUST issue scheduling order
1. AFTER receiving parties report under 26f (14 days after meet and confer/conference, which is
21 days before scheduling conference or when scheduling order is due)
2. OR after consulting w/ the parties at a scheduling conference or by phone, mail, or email.
3. The judge MUST issue the scheduling order as soon as practicable or within 120 days after
defendant is served w/ complaint or 90 days after defendant has appeared.
4. The order contains:
a. Mandatory- limits the time to join parties, amend pleadings, complete discovery, and
file motions
b. Permissive- may modify timing of disclosures, modify extend of discovery, provide for
disclosure or discovery of electronically stored info, include agreements parties have
reached pertaining to disclosures, set pretrial dates…
5. A schedule may be modified ONLY for good cause.
iii. Attendance- a represented party MUST authorize its atty to make stipulations and admissions about
all matters that can be reasonably anticipated for discussion at PT conference.
iv. 16d: Pretrial Order- After any pretrial conference, the court should issue an order reciting the
action taken. This order controls the course of the action UNLESS the ct modifies it (for injustice)
1. Objections to the pleadings, claims/defenses, or issues not included in the order are waived.
v. 16e: Final pretrial conference and orders. -- the ct may hold a final pretrial conference to
formulate the trial plan, including a plan to facilitate the admission of evidence. Must be held as close to
trial as is reasonable and must be attended by at least 1 atty who will conduct the trial for each party.
1. Parties usually submit PT briefs- state undisputed facts, identify disputed facts,
summarize legal analysis and include witnesses to be presented at trial.
vi. 16f: Sanctions-- if a party or atty fails to appear at a scheduling or pretrial conference or is
substantially unprepared to participate or does not participate in good faith or fails to obey a pretrial or
scheduling order

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 1. MUST impose fees to pay the reasonable expenses including atty’s fees and costs incurred bc of
the noncompliance.
2. The court may strike evidence that the party did not include in the PT order

4. Rule 26 & 16 timeline

a. 26 -- Meet and confer between the parties to come up with a plan for discovery (Must be done 21 days before
the parties scheduling conference with the Judge, no later than 89 day)
i. Parties must send in a discovery plan report to the Judge within 14 days after the meet and confer so
then judge has 7 days
b. 16-- 16b (scheduling order)
i. Judge has 2 options
1. He can issue a scheduling order after receiving the report from the parties
2. Or he can issue a scheduling order after the scheduling conference
ii. Judge MUST issue the order within 120 days after defendant has been served or 90 days after
defendant appeared (whichever is earlier)
c. 26a-- party must make initial disclosures no later than 14 days after meet and confer.
d. 26a -- (pertaining to parties joined) within 30 days after being served or joined
e. 26a3-- additional (pretrial) disclosures must be made at least 30 days before trial
i. P must provide and promptly file name, number, and address of anyone they expect to be part of
evidence.
ii. After 14 days, defendant may object to the testimony of witness.
1. If do not object, then the objections are waived.
f. 26d- Forbids any discovery from occurring until after the meet and confer (26f)
5. Rule 27 – Depositions Before Action or Pending Appeal – discovery device
a. Rule 27
i. Deposition or to perpetuate testimony
ii. 21 days notice
iii. The kind of circumstance where you have someone that is about to leave the country, go to jail, etc. and you
want to get this testimony before you can’t get to them; then that is when you use this rule
6. Rule 28 – Persons before whom Depositions may be taken
7. Rule 29 – Stipulations regarding Discovery Procedure
8. Rule 29  stipulations
a. When other side agrees to things
b. What you can’t stipulate to is an extension of time, that must be court appointed
9. Rule 30 – Depositions upon oral examination
10. Rule 31 – Depositions upon written questions
11. Rule 32 – Use of Depositions in Court Proceedings
a. Kinds of experts- Governed by 702, 703, 705
i. 1. Informal expert  Expert that you consult informally
1. Never have to disclose this
ii. 2. Employee expert  You can have a D that employs experts (written report required)
1. Ex: an accounting firm will have a CPA
2. That person who’s the expert is actually an employee of a particular entity
3. If that person is going to testify (the employee of the D  employee-expert) then they need to be
disclosed
iii. 3. Actor expert  Employee who is actually part of or actor in the occurrences or transactions that make up
the case
1. The actor-expert
2. If they are an actor and an expert, then the disclosure has to be both under 26(a)(1) and also as an
expert and the disclosure of the expert would apply
iv. 4. Classic expert  specially retained and employed for purposes of giving expert testimony (Written report)
1. If that person is going to testify then you have to disclose that
v. Key-- will that person testify
1. If yes, then MUST disclose
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 2. If no, then do not disclose
vi. If you talk to experts then you conflict them out and they can no longer be experts for other side.
12. FRCP 33
a. Interrogatories to Parties Rule 33: Interrogatory – A written question sent to a party that must be answered
under oath and in writing. Client signs the interrogatories under oath. Usually the first formal discovery device
used after the filing of a lawsuit.
b. Rule 33a- without leave by the court, any party can serve upon any other party written question that request
information.
i. Only to another party, not a witness.
ii. There is a presumptive upper limit of 25 questions including subparts.
1. Leave of court required for more than 25 interrogatories.
iii.Two basic types of questions are:
1. Simple Short Questions - What happened when you were driving the car on date? Or,
2. Questions with Subparts - what were you doing at the time you were driving your car, with a
subpart to explain in detail. Subparts count as questions.
c. Rule 33b Answers and Objections: Answers must be made within 30 days after the service of the
interrogatories, unless they are objected, in which time the objections must be specific and any question that is
not stated in a timely objection is waived. The answers or objections must be signed and are under the oath of
the court.
d. Rule 33c Scope: Interrogatories may relate to any matters which can be inquired into under Rule 26(b)(1).
This section deals with the use of Contention Interrogatories.
e. Contention Interrogatories – please identify all persons with knowledge and documents which you contend
support your claim of contributory negligence. It is a question that asks for all the questions in one question
without taking away from the 25 questions.
f. Rule 33d-Option to produce Business Records: This says that all business records must be turned over.
Must provide a reasonable method of obtaining the information or must provide a specification to permit the
interrogating party to locate and to identify the records from which the answer may be ascertained.
13. FRCP 34
a. Request to Produce - Rule 34 (can only be addressed to parties in the law suit)(Unlimited)
i. Written request that somebody give you access to anything - documents, ESI, tangible items, intangible
items (computers) – to inspect.
ii. 34(c) – Makes it clear that you can use it for a non-party but must get a subpoena duces tecum
1. Non party can use FRCP 45 to quash subpoena
iii.Leave of court is not required for 34(a) requests.
iv. No presumptive upper limit on the amount for things that can be requested.
v. Request cannot be burdensome.
vi. Failure to object to the request is a waiver.
vii. Objections are usually made on the grounds of: Irrelevance, Overly Broad, Unduly Vague, Unduly
Burdensome or Privileged.
14. FRCP 35
a. Physical and Mental Examinations of Persons - Rule 35
i. Rule 35a Order of Examination.
1. Only applies to parties.
a. Can be ordered of a party OR of someone in a party’s custody or legal control. Very
narrow  Basically about parents and children.
b. Only when the mental or physical condition of a party is in controversy  the court may
order the party to submit to an examination.
c. There must be a showing of good cause for the examination.
2. Flynn example--- Person runs into someone with her car. She can then require the person to
go in for an examination.
a. In examinations the person who asked for the examination must be cognizant that if OC
asks for the record, the entire record MUST be disclosed to OC.
ii. Rule 35b
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 1. One exam per party
2. Multiple defendants- every single one of the Ds may have many doctors for the P, however, in
such cases, only one complete examination will take place and all Ds will get the record.
15. FRCP 36
a. Request for Admission: Rule 36. (Unlimited)
i. Rule 36a:
1. A party may serve upon another party a request for admission within the scope of the federal
discovery rules. ONLY be sent to parties.
2. How it works- “Admit or deny the following… (each request should be limited to one topic)
3. Failure to respond = matter is admitted.
4. If the party does not respond to the request, this is an admission.
a. If objects or declines to admit  The party must state reasons for objecting or declining
5. Unless the court permits its withdrawal, an admission conclusively establishes the truth of the
matter for purposes of the litigation. (According to Flynn-- It becomes the law of the case)
16. FRCP 45
a. Subpoena: Rule 45
i. Rule 45a: Issuance. If you want a person to appear in court or to provide any materials, you can
submit and have a subpoena served on that person, and it can compel the person to comply. NOTE: this
is for Parties and non-parties.
ii. Rule 45c: You can subpoena a person and a person to produce documents.
iii.Subpoena Duces Tecum: When you subpoena documents to go along with a deposition
17. FRCP 30 & 31
a. Depositions: Rule 30 – Sworn oral testimony.
i. Rule 30:
1. A party may request and take deposition testimony of anybody. Parties are only entitled to 10
depositions without leave from the court.
a. If party to case then can compel them to attend depo - by notice of depo
b. If non-party then by subpoena duces tecum and notice for depo
i. If you want person to bring docs then must also serve subpoena for docs.
2. Limited in federal court to 1 day of 7 hours.
3. Depositions can be taken after the time specified in rule 26(d), which is after the first meeting in
26(f) meet and confer.
4. Have to subpoena a nonparty to come in for deposition as long as there is personal
jurisdiction
5. A person may instruct a deponent not to answer only when:
a. Necessary to preserve a privilege,
b. To enforce a limitation ordered by the court,
c. Or to present a motion under Rule 30(d)(3)
d. All objections that can be fixed MUST be made during the time of the depo, otherwise
waived
i. But if they cannot be corrected then they must be preserved until trial or until
depo is to be used.
ii. ALSO ALL OBJECTIONS REGARDING PRIVILEGE MUST BE MADE
e. Objections to the taking of the depo or questions that are asked that CANNOT be fixed at
the time are preserved for trial or when depo is to be used.
b. Rule 31 Deposition by written question: You write the questions out and the court reporter would ask and
record the answers. A party may no later than 14 days after the notice of written questions is served, serve a
cross question upon all other parties. 7 days to respond to the cross questions and may redirect. Then 7 days
for the response of the redirect questions.
c. Flynn notes- Only after you have received all informal and formal discovery, then you can figure out
whose depos to take
1. Depos are transcribed and produced and discrepancies can be presented to court
through a clarification sheet (OC has an opportunity to review depo transcript)
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18. Rule 37 (Power of the court to contempt lawyers or sanction lawyers that engae in inappropriate conduct)
a. Rule 37 - Failure to Make Disclosures or to Cooperate in Discovery; Sanctions:
i. If you request and the opposing attorney does not comply  then that attorney can be sanctioned
under this rule.
ii. NOTE: at anytime that the failing party wants to comply with the discovery requests, the sanction will
be dropped.
iii.Sanctions may NOT be imposed for the destruction of electronic information through “routine good
faith operation of an electronic info system”
1. Unless party had a duty to stop destruction- therefore not in good faith.
iv. When a opposing party or attorney does not comply with discovery request, you can deal with it in two
different ways:
1. If the opposing council does not do anything, then you can go directly to Rule 37(d), this is a
motion for sanctions and it is immediate.
2. If the opposing council has done something, but it is very unsubstantial. I.e. - vague answers
just to satisfy the initial discovery. They there is a two step process:
a. Must bring a motion to obtain an order to compel, from the judge for the opposing party
to give up the requested material.
b. If the opposing attorney does not comply with this order, then you can go to 37(d) for
sanctions.
v. Incomplete, misleading, or evasive answers are considered not to be answers at all.
vi. The procedure is:
1. The party who makes request and receives unsatisfactory answers--- makes motion to
compel
2. State that party was properly served with the discovery request and that requesting party
received no answer at all or unsatisfactory response
a. OC gets 5 days notice to figure out whether they will disclose info requested or not
3. Court will then look at motion to compel, and decide whether or not to grant it.
4. If requesting party wins (by ct granting motion to compel), then court grants attys fees and
costs
5. If requesting party loses (ct does NOT grant motion to compel), then requesting party pays atty
fees and costs.
6. If OC does not comply with order to compel granted by court, court may order additional
sanctions on OC or order another issue to compel.
a. Usually takes 2 motions to compel for sanctions to occur.
b. R37b--- Sanctions available for failure to comply with an order to compel discovery
i. Only available for abuse of discretion
ii. Severe sanctions
iii. 2 types of sanctions
1. where OC responds to discovery request, but it is inappropriate (incomplete/inaccurate) ---
2. OC does not respond at all
a. Attempt to contact OC, if no contact, then complete failure and you can make a motion
under R37 to get sanction and an order to compel.
i. Courts do NOT like to do this unless there is a repeated history of contact with
OC’s failure to respond.
19. Privilege
a. Privilege: These are exceptions to Rule 26.
b. There are two different kinds:
i. Attorney/client privilege – A legal shield. Narrow. An evidentiary privilege. This privilege attaches
to the communications between the attorney and the client NOT the facts of a case.
1. Only specific information relevant to only the Attorney and his client is privileged. NEVER
broken unless waived.
2. This privilege is held by the client (NOT atty)
3. Privilege is broken when:

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 a. When there is an unrelated 3rd party in the room
b. Disclosure by plaintiff to an unrelated 3rd party
4. If a 3rd party is brought into suit as part of the lawsuit, then the privilege extends to 3 rd party
ii. Work Product Protection of Privilege. This covers documents that are the work of the attorney, the
impressions, thoughts and conclusions of an attorney. These are not disclosable unless there is
hardship – like a witness has since died.
iii.Involves information produced, gathered, obtained from someone other than the client.
1. Info was obtained in anticipation of litigation
2. The facts are not protected, and OC can get this information by other means.
iv. OC can get info by showing a substantial need and undue hardship.
1. Substantial need - is relevant
2. Undue hardship or an exceptional circumstance (such as death of person who is the only person
with the facts)
3. However, if the documents have atty’s legal analysis or mental impressions, then OC cannot get
it. Must be taken out.
c. Work-product vs. attorney client privilege
i. The work product doctrine only protects materials prepared in anticipation of litigation. Covers
information from other sources that the client i.e. witness statements and document complaints. Can be
overcome. Oral convos with third party are discoverable
ii. Attorney client privilege protects communication made in connection with legal advice of any kind,
whether or not related to litigation. No exceptions.
iii.What is protected is the actual documents. OC can get the information through other discovery tools
since the FACTS are NOT protected.
iv. Work product can be overcome only if the product cannot be obtained any other way or without great
difficulty
1. However, no exception to attorney/client privilege (even upon client’s death  attorney/client
privilege lasts forever)
d. Evidence Rule 612 & 613
i. If any document, transcription, memo, or any form of writing is reviewed by a deponent prior to her
depo, and as a result, that document helped her remember something for her depo, then that document
is discoverable and all privileges and protections are waived.
e. Rule 26(c): Protective Order:
i. This is a motion that would be made by an attorney looking to protect his information under the Work
Product Doctrine 26(b)(3).
20. Discovery Tools abbreviated:
a. 5 of them – look at which can be used to get info from a NON-party. All can be used to get info from party

i. Depositions – FRCP – 30 &31

1. Sworn oral testimony
2. Can depose a party OR a non-party BUT you MUST subpoena the non-party or he does not have
to show up.
a. Party does not need a subpoena
ii. Interrogatories -FRCP 33
1. Written questions answered in writing, under oath
2. Can ONLY go to parties
3. Can get great background info
iii. Requests to Produce - FRCP 34
1. Written request that somebody give you access to anything - documents, ESI, tangible items – to
inspect.
2. 34(c) – Makes it clear that you can use it for a non-party but must get a subpoena
iv. Medical Examinations - FRCP 35
1. MUST get a court order
a. Only one

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 2. Can be ordered of a party OR of someone in a party’s custody or legal control
a. Very narrow  Basically about parents and children
b. Does not include employer/employee
v. Requests for Admission - FRCP 36
1. To force another party to admit or deny any discoverable matter
2. Only be sent to parties
PRETRIAL MOTIONS
6. Motions to Dismiss under Rule 12(b)(1-7): This motion will either be in the answer or by motion of the court. The
judge will look to the four corners of the pleading an determine if the case should be dismissed, there is no testimony
7. Failure to State a Claim - Rule 12(b)(6)
a. Motion to dismiss for failure to state a claim
b. The court NEVER looks at evidence
c. Look at the face of the complaint
i. If everything here were true, would the plaintiff win?
d. Have to give facts and ignore conclusions of law
e. Sometimes point out sloppy pleading, light most favorable too
f. If has 4 elements, A, B, C, D and the complaint doesn’t say anything about C  will be dismissed
g. Testing the legal sufficiency of the complaint
8. Motion for Judgment on the Pleadings: This occurs after all of the pleadings have been made, this is the same
substantive motion as to dismiss, but it is at a different time. AFTER pleadings concluded. Light most fav, takes ALL
PLEADINGS as a whole, not just complaint
9. Dismissals
a. Rule 41a Voluntary:
i. A plaintiff can dismiss without ct order one time (by filing notice of dismissal where clerk will enter it
or by a stipulation for dismissal by all parties), before OC has answered the complaint or filed a motion
for summary judgment.
ii. If you have given up the free one time dismissal, you can always get a stipulation from the other side,
which will not be a big problem.
iii. A voluntary dismissal is without prejudice, so the claim can be re-filed. (once dismissed it is a whole
new COA. But if the COA that you re-file has the same facts and legal application, then the TDR applies)
iv. Twice Dismissal Rule (TDR)
1. If the plaintiff would dismiss twice on the same claim, then this is adjudication on the merits
(Final Judgment) of the case and the case is over.
2. Hypos
a. Filed 1st COA in state court, then dismiss, and file in Federal Court-TDR applies
b. Filed 1st COA in federal court, then dismiss and file in fed court again- TDR applies
v. Flynn Hypo- File a claim in federal court. Defendant puts in a counterclaim. File motion to court for
VD. Defendant may object to dismissal of claim bc if the CC has no independent basis for SMJ, then the
CC will be dismissed. (Cts will NOT dismiss the original claim bc it is now needed for the CC)
1. If the CC has an independent basis for SMJ, then no problem bc claim will stand.
vi. A V.D. with court order is without prejudice
1. However, a 2nd V.D. on the same COA (where there is now a F.J)-- Attys fees and costs may be
assessed against party.
b. 41(C): Dismissal of any cc, cross-claim, or 3rd party claim- clmt’s VD must be made: (1) B4 a responsive
pleading is served or (2) if there is no responsive pleading, before evidence is introduces at a hearing or trial.
c. Rule 41b Involuntary (occurs when a P fails to prosecute)
i. When a party has filed a complaint and then there has been no activity to show that anything was filed
to move the case along for a year.
ii. The court can dismiss on its own.
iii. If P fails to prosecute or comply w/ rules or ct order, D may move to dismiss the action of any claim
against it. All dismissals (except dismissal for lack of jurisdiction, improper venue, or failure to join
party) OPERATES AS AN ADJUDICATION ON THE MERITS (FJ)

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 1. FRCP 41(b) - Every judgment is on the merits unless it was based on jurisdiction, venue, or
indispensible parties
d. 41(d): If the plaintiff dismisses a claim once and then brings the claim again or similar claim, the court may
impose attorney’s costs for the earlier dismissed claim.
Post Trial Motions
10. Default Judgment
11. (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default .
a. Rule 55 (triggered by a party’s complete failure to respond to a pleading/unresponsive person is
aware of the risk of such a judgment (that is not adjudicated on the merits))
i. Default must be noticed somehow (by affidavit/by entry on the docket)
1. Failure to do what the court has ordered you to do (answer within 21 days or file M2D)
ii. File motion for order of default
iii. After entry of default (notation of the fact of default), the court/clerk may (in its discretion) enter a
default judgment
b. Rule 55(b): (Clerk or Court may enter the default judgment)
i. Clerks-- may enter DJ only if the defaulting party is not an unrepresented minor or incompetent,
that party has not appeared in the action, and the clmt shows by affidavit that the relief sought is
liquidated (can be computed) SUM CERTAIN. (Findings of fact and conclusions of law and relief)
ii. Court-- In all other circumstances court has to enter the default judgment. When there is no sum
certain or where the defendant has made some kind of an appearance, no matter how little, and then
has done nothing else at all  the plaintiff can move for a court ordered default judgment.
1. Can be against a minor or incompetent if represented by guardian.
2. When the defaulting party has appeared- notice (7 days b4 hearing) and a hearing will be
necessary.
iii. Flynn notes- If there is no one on the other side, and you have to do it by court order (bc it is not
sum certain)- then all you have to do is bring sufficient evidence to court to prove that you are
entitled to win (enter proof in as affidavit). Have order of default judgment prepared, and then submit
it to judge for actual default judgment.
c. rule 55(C): Court may set aside DJ for good cause but only under R60 motion to set aside.
12. Relief from Judgment or Order Motion to vacate the judgment. The affect of a vacation of an order is simply that the
judgment is thrown out, no win or lose, the case can be retried
a. Rule 60 Motion for relief from Judgment
i. This rule apremiplies to any court order or judgment. Motion can be brought by either the plaintiff or
defendant.
b. Rule 60a: Timing and basis- Clerical mistakes may be corrected at any time
i. Ex: 1000 instead of 10000. Perhaps there was an error in the amount to be adjudged. This can be
sought at any time.
c. Rule 60b: This will permit a party to be relieved from a final judgment basically for the following reasons.
This is kind of the last resort for an attorney when he has lost a case. NOTE: you have a year to bring 1, 2, 3
and a reasonable time to bring 4, 5, 6.
i. Mistake, inadvertence, surprise, or excusable neglect (lawyer messed up, forgot to do something)
ii. Newly discovered evidence which by due diligence could not have been discovered in time to move for
a new trial under Rule 59: meaning after 28 days
iii. Fraud, misrepresentation, or other misconduct of an adverse party;
iv. The judgment is void – like for a lack of Subject Matter Jur.
v. The judgment has been satisfied, released or discharged.
vi. Any other reason justifying relief from the operation of the judgment.
13. Summary Judgment - FRCP 56
i. Flynn- is used to dispose of all or part of a case before trial and as a discovery tool
ii. Party may file a motion for SJ (Must identify which claim/defense or part of each to which SJ is sought)
1. MUST be filed within 30 days after close of discovery.
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 iii. The court looks at evidence in the light most favorable to the non-moving party
1. Proffered by the parties based on personal knowledge (hearsay wont work)
2. Evidence means  under penalty of perjury
a. Can use depositions, answers to interrogatories
b. Can use affidavits – written statement signed under penalty of perjury
c. Does not include pleadings unless they are verified pleadings
d. Circumstantial evidence based on series of actual facts (sequence of events) may be
used to draw an inference in favor of a dispute in order to deny SJ.
i. Meaning- a reasonable jury can find in favor of the non-moving party.
iv. SJ can be destroyed by the thinnest of inferences to dispute a genuine issue of MF (when evidence on
its face appears to be uncontroverted.
v. The moving party has to show (2 part test):
1. There is no genuine dispute as to any material fact
a. Movant MUST list enough facts that are undisputed (1 disputed fact and SJ denied)
b. Genuine issue- Is one where a jury could resolve against movant
c. Material facts- MF are those facts necessary to prove COA
2. Movant is entitled to judgment as a matter of law.
a. Meaning that Pl must be able to satisfy the particular part of the action required by law.
b. Ex: if it is a negligence case and Plaintiff could not satisfy the elements for negligence
then the D is entitled to prevail as a matter of law.
vi. Burden then shifts to the non-moving party to demonstrate that there are genuine issues:
1. Through affidavits or other showings that set forth specific facts showing that there is a
genuine issue for a jury to find in favor of non-movant.
vii. Hypo-- Even if D has 25 affidavits from clergy men saying did run red light and the P has 1
affidavit from a crack addict saying didn’t run red light  Must deny MSJ because there is a dispute
b. Summary Judgment as a Discovery Tool:
i. SJ can be used as a discovery tool by simply moving for summary judgment, and then the non-moving
party is going to have to come with everything that they have to show that there is an issue.
14. Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
a. Motion for Judgment as a Matter of Law (aka Direct Verdict) (50a)
i. IMPO-- MUST make a Motion JML before a JNOV. (bc w/o JML you are precluded from bringing
JNOV)
ii. Timing- At the conclusion of the P case in chief. At the conclusion of the D’s case in chief, and at the
conclusion of the P’s rebuttal case
iii. Motion MUST be made before submission of the case to the jury
1. It MUST specify the judgment sought and the law and facts that entitle the movant to the
judgment.
iv. Both the P and the D can bring the motion
1. If they demonstrate that the opposing party has not met its burden of providing sufficient
evidence to which a reasonable jury could find in favor for him
v. Basis for the motion-
1. The court will look at all the evidence (as a whole) submitted in the light most favorable to the
non-moving party and then, if no reasonable juror could find a legally sufficient basis for a
verdict in favor of the non-moving party, then the motion will be granted.
a. Aka there can be but 1 conclusion as to the verdict.
b. Renewed Motion for Judgment as a matter of law (JNOV-Judgment notwithstanding the verdict (50b)
i. Timing The party who previously made a Motion for JML may renew this motion within 28 days
after entry of Judgment against the party making this renewed motion.
ii. Either the P or the D (whoever judgment was entered against) can make this motion
iii. Basis for the motion--
1. The court will look at all the evidence heard by the jury in the light most favorable to the non-
moving party and then, if no reasonable juror could find a legally sufficient basis for the verdict
rendered for the non-moving party, then the motion JNOV will be granted.

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 iv. Alternative Motion- (NT)
1. The party making the renewed Motion JML may (JNOV), MAY in the alternative, request a NT
either by separate motion OR include such a request in the renewed Motion for JML.
2. The court, in this circumstance, can rule:
a. To uphold the judgment rendered
b. Grant the renewed Motion JML
c. OR order a NT
3. Conditional ruling on Motion for NT
a. In all instances where the court grants the JNOV-- the court must also conditionally
rule on the request for NT by determining whether a NT should be granted if the
judgment is - reversed/vacated on appeal. (ct must give reasons for decision)
b. This wont affect the finality of the judgment. (on appeal)
i. Rather if the JNOV is reversed --- then the NT will go forward.
ii. If the M. for NT is conditionally denied-- appellee may assert error in the
denial
iii. If JNOV reversed--- must proceed as appellate ct orders
4. Denying JNOV
a. If the TC denied the JNOV prevailing party (appellee) may assert grounds entitling it
to NT in the event that the appeal ct. concludes that the TC erred in denying the motion.
b. IF the appeal court reversed the TC’s denial of the JNOV--
i. It may order a NT
ii. Send back to TC for determination of whether a NT should be granted
iii. Or direct the entry of judgment. (aka grant the JNOV)
15. Rule 59. New Trial; Altering or Amending a Judgment
a. R59(a)- Motion for NT
i. Timing- NO later than 28 days after entry of the judgment
ii. Either the P or the D or the court (on its own initiative) may bring a motion for NT
iii. Basis for the motion--
1. Any reason recognized under US law
2. Allows the judge to vacate the verdict and order NT if the losing party moves for NT on basis or
errors immediately.
3. When the motion for NT is based on affidavits, OC has 14 days after being served to file
opposing affidavits.
iv. Procedure- (Flynn-2 categories for granting NT)
1. The court will look at all of the evidence and then determine if the great weight of evidence is
contra to the jury verdict and if it is- then the court in its discretion may order a NT
a. IMPO Flynn’s words-- “The Judge is not saying that even with all the evidence
presented a reasonable juror cannot find in favor of the non-moving party, rather he is
saying that the case WARRANTS a new jury looking at the evidence”
i. Remember non-movant probably had supportive evidence if TC found in favor
of him.
2. The court will look to see if any procedural error in the trial tainted the trial process (MUST be
a harmful error) and if so, then the court may in its discretion order a NT.
a. ASK yourself -- Does the error rise to the level of being significant and material to
the outcome of the case?
i. These include improper jury instruction, and external jury misconduct
b. R59(e) Motion to Alter or Amend Judgment
i. Timing- within 28 days after entry of judgment, Either the P or the D can bring this motion
ii. Basis--
1. In a non-jury trial, the court may grant a NT and just open up the judgment and take additional
testimony or just amend or alter the judgment
2. In a jury trial, the court may amend or alter a judgment for any kind of mistake other than a
clerical error, which is covered by R60. (only for substantive mistakes)

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 16. How they all work (Flynn’s different Hypos)
a. Party who lost at TC may seek JNOV or NT
b. Party who won may move for NT 28 days after TC’s grant of JNOV
c. Trial Court may
i. Grant JNOV & Grant NT (conditionally)
1. There is a final judgment- therefore the JNOV CAN be appealed and the NT
2. If reverses JNOV
a. Appeal court may remand case to TC for NT
b. Reverse grant of NT and order entry of original verdict
c. Or remand case to TC for reconsideration of motion for NT
ii. Deny JNOV & Deny NT
1. Both decisions may be appealed.
2. Party who verdict was found (appellee)-- may argued grounds for NT in event Appeal Ct.
finds that TC erred in denying JNOV.
3. Appeal court may then:
a. Enter JNOV
b. Award NT
c. Or remand case to TC for NT determination
iii.Grant JNOV & Deny (conditional) NT
1. Appeal court may order entry of judgment on the original verdict
2. Plaintiff appeals JNOV defendant appeals NT to protect themselves
3. Reverse denial of motion for NT and order NT
4. Or remand case to TC for reconsideration of motion for NT
iv. Deny JNOV & Grant NT
1. Not appealable since this is not a final judgment
2. Party may appeal from NT’s (2nd trial) final judgment - raising the question of validity of NT,
losing pl with bring JNOV and NT
3. At NT defendant can still file another NT to protect themselves
17. Rule 51: Instructions to the Jury; Objections; Preserving a Claim of Error
i. If don’t agree with instruction  object as soon as read so can preserve it for appeal.
PRECLUSION: RES JUDICATA, COLLATERAL ESTOPPEL, FULL FAITH AND CREDIT
1. Res Judicata - Claim Preclusion
a. Any time there is two lawsuits think of res judicata. (Goes for claims or defenses)
b. Flynn: - If the P wins, P cannot sue again bc the P’s COA merges with the judgment
c. In order for Res Judicata to apply, the parties in the prior suit and the current suit MUST be identical (on in
privity)--- if you answer yes to all- then Res judicata APPLIES!!!
i. Identical parties/privies (look to the capacity/real party in interest?)
ii. A court of competent SMJ must have adjudicated on the merits (rendered prior judgment) **
iii.A final judgment on the merits
1. Precludes parties from presenting claim/defenses grounded differently in fact or in law from
the claim that was the subject of the judgment.
2. Includes Judgment in favor of the P, SJ
3. D’s defenses such as lack of SMJ, PJ, improper venue, etc. that dismiss claim DO NOT preclude P
from bringing the claim again in another court. (Such defenses are not adjudications on the
merits) Look to 41b
iv. The P must raise the same COA in both lawsuits
1. Standard Arises out of same transaction or occurrence (common nucleus of operative facts)
facts MUST overlap bc of the time frame
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 a. Subsequent in time COA will not be barred by RJ (e.g. - you can sue for sexual
harassment twice against the same party if the 1 st lawsuit covered 2001-03 and the 2nd
covered 2004-07)
2. Res judicata also bars claims that could have been brought “arises out of same T or O” and
“loose factual connection” NOT just the cases that were brought. (Key- Claims are so related)
a. MUST ask yourself-- Could the claim have been brought at the beginning of the
claim? (If yes, then barred by RJ)
i. Ex: 13a counterclaim (If you don’t bring it you lose it due to doctrine of res-
judicata)
ii. Permissive cc (maybe) if it could have been brought/”loose factual connection”
1. Meaning the claims are sufficiently related… could be barred by RJ.
d. The Doctrine of Res Judicata is governed by the court that rendered the judgment
e. Doctrine of Res judicata can apply between court systems
i. If the federal claim was brought in federal court and then state court -- then Fed law will be used
f. RJ Does not apply to a party that was not a party to the original lawsuit.
g. RJ- Can be made inapplicable through statutory provision or through K provision.
h. RJ Applies to D who have brought CC, cross-claims, and 3rd party claims
i. Hypo-
i. Bank(P) sues D for 2 missed payments on car in the 1 st lawsuit. Judgment rendered D to pay the two
payments. P then in a 2nd lawsuit sues D for additional missed payments. Court found the installment K
as creating a right in bank to sue for the entire unpaid balance as soon as D missed a payment. Scope of
P’s claim adjudicated in the 1st case was what it could have sued for (entire unpaid balance). Thus 2 nd
claim disappeared by merging into the 1st lawsuit.
2. Collateral Estoppel (aka mini RJ) - Issue Preclusion (Collateral Estoppel)
a. Same issue of fact and law as 1st case and 2nd case
b. Look for any issue that was not actually litigated
c. That issue is deemed established in case 2
d. When the district court enters summary judgment barring claims under the doctrine of collateral estoppel, the
decision is reviewed de novo. To successfully invoke collateral estoppel, the party asserting it must establish
the following 5 factors:
i. Same issues of fact in law
1. Issues were actually litigated (contested) in the previous lawsuit
a. An issue is not actually litigated if the parties stipulate to its resolution.
b. Ex: Default judgment are not actually litigated and therefore hard to bring C.E.
c. Ex: If it is consented to (by stipulation) then not actually litigated.
2. Issue actually decided before the court (hearing)
a. What was presented and argued
b. An investigation is NOT presented and argued (not decided)
i. It can be determined (Flynn- but just bc you determine something does not
mean it was litigated)

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 ii. There was full and fair opportunity to litigate in the prior proceeding
iii.The issue previously litigated was necessary to support a valid and final judgment on the merits
 Issue was actually necessary (elements to prove COA. The elements are the issue of law) for that
litigation.
iv. Final judgment on the merits by a court of competent jurisdiction.
e. Non-mutual – Used by someone who was not a party in case 1
i. Can come up in 2 ways
1. Non-mutual defensive – The defendant in case is using C.E and was not a party in case 1
a. One circumstance is “nonmutual defensive” issue preclusion (NDIP). “Nonmutual”
means that the party using issue preclusion in Case 2 was not a party to Case 1.
“Defensive” means that the person using preclusion is D in Case 2. The majority of
jurisdictions allow NDIP so long as the party against whom it is used had a full and fair
opportunity to litigate in Case 1
2. Non-mutual Offensive- The plaintiff in case is using C.E. and was not a party in case 1
a. is “nonmutual offensive” issue preclusion (NOIP). As before, “nonmutual” means that
preclusion is being asserted by someone who was not a party to Case 1. “Offensive”
means that the person using preclusion is a claimant in Case 2. And again, the traditional
view of mutuality would not allow this. Slowly, some jurisdictions (probably not a
majority) have permitted NOIP, but cautiously. NOIP makes us nervous in ways NDIP
did not.
f. Flynn Hypo-
i. P2 using C.E. offensively
1. P1 v. D1 (P1 wins)
2. P2 v. D1
a. P2 is trying to preclude D1 from re-litigating issue of fact or law that were actually
litigated.
b. D1 should not have another opportunity to re-litigated same issue of fact and law bc it is
not fair (cant have 2 bites of the apple)
c. Court can look at a few things to determine whether C.E. should apply
i. The P could have joined in the original lawsuit
ii. First case D didn’t really litigate bc it was not serious (rare)
iii.Was the issue actually contested.
ii. D1 using C.E. defensively
1. P1 v. D1 (D1 wins)
2. P2 v. D1
a. D1 is trying to use C.E. defensively by precluding P2 from bringing claim against D1.
b. D1 CANNOT do this bc P2 deserves her day in court. Therefore this trumps the
application of C.E.
iii.P1 using C.E. offensively
1. P1 v. D1 (P1 wins)
2. P1 V. D2
a. P1 cannot do this bc he is trying to assert C.E. against a person who was NOT a party to
the first lawsuit.
b. D2 has to have an opportunity to defend himself. The right to trial by jury therefore
trumps the application of C.E.
iv. D2 trying to use C.E. defensively
1. P1 v. D1 (D1 wins)
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 2. P1 v. D2
a. D2 trying to piggie back off issues of law or fact litigated in the first case.
b. He can do this bc P1 was a party to the initial case
i. Although Supreme Court has never decided this… Flynn says “Why not?”
3. Categories of cases in which on need not have been a party to the prior litigation
a. Consent – A non-party may consent to be bound by the result of litigation
b. Pre-existing formal relationships – Certain formal relationships result in preclusion of non-parties
c. Control – If a non-party substantially controls the litigation behavior of a party, the non-party may be bound by
that litigation
d. Class actions – Unnamed parties in class actions are bound to the result in a properly certified class action
4. 28 USC § 1738- Full Faith & Credit
i. Full faith and credit and related doctrines dictate that, as a general rule, the court in Case 2 applies the
preclusion law of the judicial system that entered the judgment in Case 1. This rule makes sense: the
law of the jurisdiction that entered the judgment should define the preclusive effect of that judgment.
1. Example #9: Case 1 is litigated in state court in Kansas. Case 2 is filed in state court in North
Carolina. The North Carolina judge applies Kansas law to determine whether the judgment from
Case 1 is entitled to claim or issue preclusion
b. Article 4 § 1 states in part “every state shall give full faith and credit to every other state’s judgment”
i. So long as there is proper registration of the judgment in one state, the other state MUST look to the law
of the state where the initial judgment was rendered, and enforce the judgment.
c. How it applies-
i. Judgment rendered in FL and person tries to have it enforced against the defendant in Washington.
1. Whether or not the judgment has Res judicata effect or C.E. effect will be governed by the law of
Florida.
d. Federal Court are courts of limited SMJ
i. Full Faith & Credit means that a state could be enforcing law that is against the states law (bc it has to
give full faith and credit to the original state’s judgment)
1. Erie -- BC both laws are in CONFLICT
2. Bc state law of new state would determine the outcome of the case but the Federal statutes says
new state has to use the law of the state that initially rendered judgment for P. Therefore they
are in conflict (Erie Problem)
e. Exceptions to FF&C
i. Where a judgment is against the public policy of a state (such as gay marriage, gay adoption, etc.)
1. States may not enforce
f. Why would federal court want to recognize state judgment
i. EASY-- bc they want Res judicata & C.E. to apply
ii. Exception- Where the federal courts believe that the issue rendered in state court encompassed a
federal law, constitutional right, or something of federal nature.
g. States recognize federal court judgments

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