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Civil Procedure Class 24 (Fall 2013)

Erie Doctrine; PJ Wrap Up
by

Chris Osborn

on 2 January 2014

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Transcript of Civil Procedure Class 24 (Fall 2013)

ALL I DO IS...
CIVIL PROCEDURAL PURSUIT!
The Rules...
Office Hours:
M: 1:30-3:30
Wed.: 9:00-11:00
Fri.: 1:00-3:00

Civil Procedure
Sections 5 & 6

Room 1046 (10th Fl.)
cosborn@charlottelaw.edu
704-808-4913

Professor Chris Osborn
Have someone else sign the attendance sheet for you when late or absent.

Attendance Policy
2 Mid-Term Exams:
Assessment & Grading
Who is responsible for class not turning into this…
Preparation and Class Participation:
Yep. To quote that great 21st Century philosopher, Zac Effron...
Mobile phones, Blackberries, iPhones, etc. off or “silent”
Computers and Digital Devices:
Class Website/Portal/Homepage:
Desire2Learn ("D2L")
*See CSL Student Handbook , Section 2.1.3 (Fall 2013 version)
Info Cards
Attendance Sheet*
Also marked absent if you:
> 15 minutes late for class.
Fail to sign the attendance sheet
Sign in but leave early (w/o advance permission)
A word on Cold Calling:
“We’re all in this together.”
Class Participation
(5%)
Final Exam
(60%)
Let's Play....
The ANSWER:
Admissions & Denials
Intervention by 3rd Parties
Rule 24
PERSONAL JURISDICTION
SUBJECT MATTER JURISDICTION
Summary Judgment
Let's Get it Started!
(Don't)
In da Club?
So how much do Procedural Rules matter??
Joinder of Claims
(And Whatever Will They Talk About?)

Joinder of Parties
(Who's Invited? )

Pleadings
Jurisdiction
Choice of Law
Motion to Dismiss on grounds of
Venue
Judgments
Procedural Rules
No video or audio recording
Laptops/tablets for note-taking or other specified purposes only.
Be all here...

U Txt N Class U Lose*
...not here
unless specially arranged
EXAM WRITING PREP
Friedman and Goldberg, Open Book: Succeeding on Exams From the First Day of Law School (2011)
www.openbooklaw.com
Materials & Readings
REQUIRED:
Yeazell, Civil Procedure (8th ed. 2012)
RECOMMENDED (STUDY AIDS)
Glannon, Civil Procedure: Examples & Explanations (6th ed. 2008)
Glannon, The Glannon Guide to Civil Procedure
Clicker (Turning Point Technologies)
Federal Rules of Civil Procedure (2013 ed.)
Week of Nov. 4
(20%)
Week of Sept. 30
(15%)
May be reduced or forfeited
May be increased up to 5 points
Presumptive award = 2 points
NOT Substantive Law
but
Writing rules is easy, right?
I'll choose the best one, which will then be played in class.
"
ON THE MERITS
OF THE CASE"
All, and
only
, about the
process
...
I. Use
all 4 objects
in some way
PLUS a 4th object of each team's choice
Divide into groups of 6. Each group has
10 minutes
to design a game that we can play, right here in class, using the following three objects:
???
THE FRAMEWORK
To be eligible, your game
must:
IV. Have a descriptive title of no more than 2 words
V. Be governed by a total of
3 rules
, all of which must fit neatly on the front side of the index card
III. Last no longer than
5 minutes
(though play need not be timed)
II. Allow for
up to 4 players
per team competing
Team Name: ___________
1. ______________________
2. ______________________
3. ______________________
Game Title: ___________
Rules:
Themes, Tensions, & Trade-Offs
PROTECTION OF:
THE WEAK
UNSOPHISTICATED PLAYERS
THE POOR
FAIRNESS
JUSTICE
PREDICTABILITY
EFFICIENCY
ORDER
PREVENTING PLAYERS FROM RIGGING THE SYSTEM
RESTRAINT OF BAD CONDUCT
"your obligations"
Torts
W
Begin!
STOP!!
OK, but why do all these rules matter
to me
?
Well...
Criminal Law?
Transactional?
Civil Litigation?
who's involved?
Family Law
Employment Law
Property
Contracts
IS
CIVIL PROCEDURE
???

how long will it take?
where?
who decides?
"my rights"
WHO IS RIGHT?
How
does a dispute get heard?
what can I say?
H...
T
Um, no...
Basically, it means, "as distinguished from
CRIMINAL
"
guilt vs. innocence
punishment
1. Got clients?
Starbucks?
2. Sound intelligent with litigation colleagues
3. Picking outside counsel
7. AWESOME party conversations!
5. Things change...
4. Your transactions themselves...
6. Um, the bar exam?
PROTECTION OF:
THE WEAK
UNSOPHISTICATED PLAYERS
THE POOR
FAIRNESS
JUSTICE
PREDICTABILITY
EFFICIENCY
ORDER
PREVENTING PLAYERS FROM RIGGING THE SYSTEM
RESTRAINT OF BAD CONDUCT
THE COMPLAINT
General Principles of Pleadings
The Most Recent Revolution
(in Pleading of Facts)
Pleading Special Matters
Ethical Limitations & Considerations
Rule 12 (b)
Amending a Pleading
Discovery
By Plaintiff
by Defendant- Counterclaims
by Plaintiff
By Defendants:
Plaintiff's
Reply
to Counterclaim
Rule 7
Rule 13
Rule 15
Affirmative Defenses
What difference would the rules have made here?
WHO WINS?
Determined as a function of both...
What are the possibilities?
of our Class!
OK, why did we do that?
And the winner is....
Rules reflect
choices

Both
now...

That have
consequences

Among competing
values

and in the
future...

Some helpful questions to ask as you read, study, & discuss the materials:
I am glad ____ won. But what would I be arguing if I were the other side's attorney?
What principle of law determined the outcome?
Who picked this fight? Why? What advantage did they seek to gain?
What's the resulting effect on this case?
What are the consequences / implications for the next case?
Relief from Judgment or Order
Basics of Appeal
Judgment as a Matter of Law
Motion for New Trial
Voluntary & Involuntary Dismissal
Rule 41

Default Judgment
Rule 55

Judgment on the Pleadings
Function of the Judge
Federal Common Law?
State Law
But which

State's law ?
Grounds for Removal (from State to Fed Court)
Supplemental Jurisdiction
(over State Law Claims)
28 U.S.C. §1367
Diversity Jurisdiction
Federal
Question
Jurisdiction
28 U.S.C. §1331
How does the
Shoe
fit?
Long Arm Statutes
The Sliding Scale of
Shoe

Transient Jurisdiction
The Historical Background of PJ:
Claim Preclusion
Issue Preclusion
DEFENDANT'S OPTIONS FOR RESPONDING:
Rule 8(b)
WIN!
Where My Party People?
Service of Process
(Pop Music Edition!)
"Old School" Pleading
"New School" Pleading
Finality
Dismissals
Judge Me!
The Purposes:
Alerting the Court
(We Need Your Assistance)
Limiting the Issues:
(May also determine what the case is NOT about)
Framing the issues

(What's this all about?)
Defendant begins telling its/his/her side of the story
Plaintiff begins telling its/his/her side of the story
Alerting the Defendant:
(I have a problem with you, I want something from you, & asking nicely won't work)
Addressed to the government official
(i.e., requesting a “bond” encouraging Def. to appear & stand trial)
“gages and safe pledges”
"Greeting"
(to seek Royal Justice)
“Outrage”
(This deserves your attention)
(Filing fee paid, "so you know I ain't playin'")
PROBLEMS?
Not uniform
Confusing
Hyper-technical
Limited access
(a) Pleadings. Only these pleadings are allowed:
Rule 7. Pleadings Allowed; Form of Motions and Other Papers
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
(2) an answer to a complaint;
(1) a complaint;
}
1st enacted:
1938
Rule 8
(a)
Claim for Relief
. A pleading that states a claim for relief must contain:
(e)
Construing Pleadings
. Pleadings must be construed so as to do justice
(1) . . . Each allegation must be simple, concise, and direct.
No technical form is required.
(d)
Pleading to Be Concise and Direct
. . . .
(3) a
demand for the relief sought
, which may include relief in the alternative or different types of relief.
* * *
(2) a
short and plain statement of the claim showing that the pleader is entitled to relief
; and
(1) a short and plain statement of the
grounds for the court’s jurisdiction
. . . ;
Rule 8. General Rules of Pleading
The Historical Context
Themes, Tensions, & Trade-Offs
INCREASED ACCESS TO COURT
FAIR NOTICE OF ISSUES
WEEDING OUT UNMERITORIOUS SUITS (EARLY)
WE DON'T ALWAYS HAVE ALL THE INFO TO SUPPORT THE CLAIMS
(KEEPING IT SIMPLE)
Defendants
Plaintiffs
FAIR NOTICE OF FACTS
EFFICIENCY OF THE SYSTEM?
Wait, What?
2 ASPECTS OF "SHOWING THAT THE PLEADER IS ENTITLED TO RELIEF"
1. Legally
2. Factually
Pleadings contain no obvious legal
bar
to recovery
A bit trickier, as we shall see....
Haddle v. Garrison
11th Circuit Court of Appeals?
U.S. District Court?
The Facts:
Haddle alleges he was fired for cooperating with criminal investigation vs. his employer
The Key Question is: did the Complaint "state a claim" vs. Garrison under Rule 8(a)?
Rule 8. General Rules of Pleading
(Plaintiff)
(Defendant)
OK, so uh, what are we going to be actually studying?
Think like "kids" again:
THE CONCEPTUAL FRAMEWORK FOR DEFENDANT'S RESPONSES
You stole my lunchbox, punk. I'm telling!!!
Petey
Davey
F.R.C.P.
"OLD SCHOOL"
(PRE-1938)
PLAYGROUND
What are Davey's most common repsonses?

Rule 8(b)

FACTUAL DENIAL
Traverse (i.e. “to run against”)
1. "Did not!" (or)
"Wasn't me!"
3. “Your teacher's not the boss of me!”
2. “Yeah. So what?”
"dilatory plea in jurisdiction"
Rule 12 (b)
(1) lack of SMJ
(2) lack of PJ
Rule 12(b)(6) Motion to dismiss for
failure to state a claim
"Demurrer"
=
=
=
=
=
=
Rule 12. Defenses and Objections: When and How Presented...
* * *
(b)
How to Present Defenses
.
Every defense to a claim for relief in any pleading

must be asserted in the responsive pleading if one is required
.
But a party
may assert the following defenses by motion
:
(1) lack of subject-matter jurisdiction
;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
The Substantive Law:
42
U.S.C.
§1985 (2)
(a
federal
statute)
Defendant's strategy:
The Procedural Rules:
Rule 8(a)
Rule 12(b)(6)
...to Defendant's Options for Responding...
Rule 12(b)(6) !!
U.S. Supreme Court
No. Per Morast (prior case), at-will employees cannot use §1985, b/c not "injured" or "deprived of property interest."
Ditto.
Yes it did.
Morast was wrong, we overrule it.
Circuits split re: §1985(2)
Where did Haddle's complaint originally fail?
[and]
There actually EXISTS a LEGAL BASIS FOR the claim(s) asserted
Complaint gives notice of the legal basis for the claim
The Field Codes
Only Question for court
:
whether the law applies to the situation,
i.e., provides a potential remedy?
Court must assume the FACTS as pled are TRUE
On a Rule 12(b)(6) Motion:
(parties get to fight about that later)
Ashcroft v.
Iqbal
v. Twombly
Conley v. Gibson
FRCP (1938)
Required pleading of more FACTS, so judges could weed out bad claims
Enacted by States
1800's
Designed to put an end to more technical forms
PROBLEMS:
INCONSISTENT RULINGS
HOW MUCH DETAIL IS ENOUGH?
WHAT'S A "FACT"?
"short and plain"
"concise & direct"
(U.S. Supreme Court 1957)
**Policy/values decision: details that parties. would need for trial would come through DISCOVERY
inclusion of sample forms
Determining Adequacy of Factual Allegations
Look at the sample forms included
Federal Rules “do not require a claimant to set out in detail the facts upon which he bases his claim.”
provided “liberal opportunity for discovery" + other pretrial procedures
FRCP chose “
notice pleading

Rather, only “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.”
*This becomes the (very liberal) standard for Rule 12(b)(6) motions
“...a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt
that the plaintiff can
prove no set of facts
in support of his claim which would entitle him to relief.”
How do you prove conspiracy? & based on that, how do you allege it sufficiently?
“enough fact[s] to raise a reasonable expectation that
discovery
will reveal
evidence of illegal agreement

(Plaintiff)
(Defendants)
Complex antitrust complaint (alleging conspiracy to restrict competitor entry and to fix prices for phone service)
The Facts:
Problem:
Problem
Rule 8(a) requires “fair notice of what the . . . claim is and the grounds upon which it rests.”
BUT . . . given the high cost of discovery, court can "insist on some specificity in pleading"
Now providing notice of the “grounds for entitlement to relief” requires “more than labels and conclusions;” it requires:
pleading of sufficient facts “to raise a right to relief above the
speculative
level”
“We do not require heightened fact pleading of specifics, but only enough facts to state a claim that is
plausible on its face
.”
enough facts to“nudge[] [the] claims across the line
from conceivable to plausible

What about Conley's "no set of facts" language???
“... after puzzling the profession for 50 years, this famous observation has earned its retirement.”
“This phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard”
Until...
Lingering questions & confusion:
1. Was Twombly just a special rule for a special type of case?
3. How should a court determine
plausibility
? How much pleading detail is required?
2. What the heck does "
plausibility
" mean (in the context of pleading)?
Any "potentially massive factual controversy"?)
Any complex litigation?
(i.e., Applicable only to antitrust claims?
(2007)
Twombly applies to
"ALL CIVIL ACTIONS" IN FEDERAL COURT!!!
The Facts:
The Rules
:
Rule 8
Rule 12(b)(6)
Alleges deprivation of Constitutional Rights based on terms of his detention
Iqbal detained
as a person of
"high interest"
9/11
(Defendant)
(Plaintiff)
(also "the Movant" or party moving to dismiss)
2 step analysis required . . .
(i.e., The "Twiqbal TwoStep")
Let's Do It!
(practice)
???
“Rule 8 does not unlock the doors to discovery for a plaintiff
armed with nothing more than conclusions
.”
“Where a complaint pleads facts that are ‘
merely consistent with
’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
≠ Probability (i.e., doesn't have to be "more likely than not"
Facial Plausibility = factual content in complaint that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged
A complaint will not suffice “if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’”
Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
PLAINTIFF HAS TO PLEAD
SUFFICIENT FACTS
What is "plausibility"?
(b) factual conclusions
(a) legal conclusions
Where the facts permit the court to infer the
mere possibility
of misconduct, the complaint has
“alleged” but not “shown” an entitlement to relief
2. Consider whether the REMAINING FACTS pled state a
plausible
claim, "in light of judicial experience and common sense"
1. Identify the mere "conclusory" statements, and DISREGARD THEM
3. (15 Min.) In
groups of 4
, compare notes on question 2, briefly. Then, discuss whether the complaint is
sufficient to state a claim for each of the first 2 claims for relief
.
Highlight on 1 copy
any portions of the complaint that support your decision.
1. (5 Min.) Read the entire complaint.
2. (3 Min.) Read it a second time, and mark with brackets any paragraphs that relate to each of the 3 elements required by Rule 8(a)
4.
Each member of group
should be prepared to report on your conclusions, & defend them.
The following elements must be proven to establish a case for battery:
(1) an act by a defendant;
(2) an intent to cause harmful or offensive contact on the part of the defendant; and
(3) harmful or offensive contact to the plaintiff.
The required elements of a negligence claim:
1. Def. had a duty to Plaintiff
2. Breach of that duty
3. Which proximately caused
4. Injury to Plaintiff
No Class
Th., 12/12

Room 904
§ 5

Make up:
Wed. 12/11

[This phrase]“should be understood in light of the opinion’s... summary of the complaint’s concrete allegations... amply stating a claim for relief”
(Note the Court's different efforts to express the new standard)
Investigation
Wait, What?
SUBSTANTIVE LEGAL CONCEPTS
Plaintiff v.
Defendant
NEW PROCEDURAL CONCEPTS
– appeal of an order or decision that is NOT a final judgment"
Order of the Parties - may be different at each stage!
Petitioner

(loser in App. Ct.)
Appellant (loser in trial court)

Appellee (winner in trial court)
Respondent (winner in App. Ct.)
v.
v.
MUST READ CLOSELY!
"interlocutory" appeal:
"Qualified Immunity"
: some gov’t officials may be
immune from suit
for duties performed in good faith in the course & scope of their employment
"Bivens" action
: suit vs. government official for violating Constitutional rights
How should courts apply this "plausibility" standard?
How broad was the holding in Twombly?
But > "sheer possibility" that D has acted unlawfully
Rule 8
Dist. Ct. Denies Motion to Dismiss
U.S. Supreme Court Grants Certiorari
2nd Circuit Affirms Denial
THE BROADER EFFECTS?
Lawyers
RESULT: COURT OF APPEALS TO DECIDE WHETHER DIST CT. CAN ALLOW P. TO AMEND COMPLAINT
Rule 9(b)
Malice, intent, knowledge, and other conditions of a person's mind may be alleged
generally
.
(b)
Fraud or Mistake; Conditions of Mind
. In alleging fraud or mistake, a party must
state with particularity
the circumstances constituting fraud or mistake.
SIGNING PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO THE COURT; SANCTIONS
(4) the
denials
of factual contentions are
warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information
.
(3) the factual contentions have
evidentiary support
or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further investigation or discovery
; and
(2) the claims, defenses, and other legal contentions are
warranted by existing law

or

by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(1) it is not being presented for any
improper purpose
, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation
;
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party
certifies that to the best of the person's knowledge, information, and belief
, formed after an
inquiry reasonable under the circumstances
:
* * *
D
P
L
E
"not entitled to the assumption of truth"
BUT court engages in SPECULATION re: the "more likely" motive or explanation for Defendants' actions."
WTH???
THE SPIRITED DISSENTING OPINION:
Complaint is sufficient to allege
supervisory liability
Disagrees re: what allegations are "conclusory"
Implausibility = "claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel"
Majority misapplies

Twombly
Stradford v. Zurich Insurance
Let's Do It!
(practice)
3. (5 Min.) In
groups of 4
, compare notes on question 2. Then, discuss whether the complaint is
sufficient to state a claim for each of the 3 claims for relief
.
1. (3 Min.) Re-read the Berry Complaint, and highlight all conclusory allegations in
yellow
3.
Each member of group
should be prepared to report on your conclusions, & defend them.
The following elements must be proven to establish a case for battery:
(1) an act by a defendant;
(2) an intent to cause harmful or offensive contact on the part of the defendant; and
(3) harmful or offensive contact to the plaintiff.
The required elements of a negligence claim:
1. Def. had a duty to Plaintiff
2. Breach of that duty
3. Which proximately caused
4. Injury to Plaintiff
Bridges v. Diesel Service, Inc.
Walker v. Norwest Corp.
Christian v. Mattel Inc.
(1:00-3:00)
Rm. 901


= A CIVIL SUIT--
NOT
ABOUT CRIMINAL CHARGES THEMSELVES. OR THE CRIMINAL TRIAL / PRE-TRIAL PROCESS
Lawsuit for Coverage Benefits
Counterclaim for Fraud
The Facts:
Amount of Damages?
What did Zurich claim he lied about (and by what means)?
Cause of Damage?
"No claims" letter?
Date of incident?
1. Legally
2. Factually
Do pleadings contain any obvious legal
bar
to recovery?
1. Identify mere conclusory statements (legal or factual)-and

DO NOT TREAT THEM AS TRUE
[and]
Is there a valid LEGAL BASIS FOR the claim(s) asserted?

Does Complaint give notice of the legal basis for the claim?
EXAMMY
CARD!!
Dismissal of complaint?
If insufficient to state a claim, what is the proper remedy?
Allow pleader to amend?
Dismissal of invalid claim or claims only
The Twiqbal
TwoStep!
2. Examine the remaining (i.e., "well-pled") facts: if

treated as true

(for purposes of the 12(b)(6) motion, only), are they
** Would have to know or be given the applicable law
enough to establish the elements of the legal claim?
Civ Pro
$150K
$1.3M!!
then
...to Defendant's Options for Responding
*
COUNTERCLAIM AND CROSSCLAIM
(kinda, sorta...)
or NOT PLEADING...
CAROLINA DISCTINCTIVES
2. N.C. R. Civ. P. Rule 9(j): Cannot file med. mal. claim without having qualified expert who has reviewed care & will testify vs. Defendant
1. In personal injury ("PI" ) cases, cannot request specific amount of damages > $10,000.00 (similar to CA rule)
(d)
Pleading to Be Concise and Direct; Alternative Statements; Inconsistency
.
More Rule 8:
(3) Inconsistent Claims or Defenses
. A party may state as many separate claims or defenses as it has, regardless of consistency.
(2)
Alternative Statements of a Claim or Defense
. A party may set out two or more statements of a claim or defense alternatively or hypothetically...
(1) In General. ...
Counsel's Obligations
Procedure for Filing
(c) (2) Motion for Sanctions.
(b)(2) If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
RULE 11
(3) On the Court's Initiative. 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).
21 days to withdraw or... correct
served but... not... filed
must describe the specific conduct alleged to violate...
... made separately from any other motion...
(1) In General. If, after notice and a reasonable opportunity to respond, the court finds a violation] the court
may
impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation...
(5) Limitations on Monetary Sanctions. No $$ sanction
against a represented
party
on motion and [if] warranted
for effective deterrence
, an order directing payment of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
an order to pay a penalty into court; or,
...may include nonmonetary directives;
(4) Nature of a Sanction. ... must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.
Rule 11(c)
(Haddle)
AND
Atty tried to turn state court child custody suit into federal civil rights action
30 EXTRA hours of CLE (no self-study or in office)
&
Ordered to write letter of apology,
no lawyerizing!
Crank v. Crank (Note, p. 425)
Separate disciplinary proceeding
Concerns Ethical Obligations, but
not
the same function/process as Rules of Prof. Conduct
BE MINDFUL OF OBLIGATIONS UNDER BOTH!!!
IF WE HAVE ETHICAL RESPONSIBILITIES, WHY DO WE NEED A RULE OF PROCEDURE?

Process for enforcement

Timing

Decision-maker

Remedies
Rule 11 is focused on how the conduct affected the actual case
motion in the case
Key Differences:
Usu. much later, slower
More immediate
Local/State Bar Grievance Committee
RPC
FRCP Rule 11
Judge Presiding
Censure, Suspension, Disbarment, but
no $
Pmt. of atty. fees & costs?
Americans with Disabilities Act (“the ADA”) requires “exhaustion of administrative remedies”
Employee alleges he was fired due to having a disability
Filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), is a pre-requisite, or "condition precedent" to filing civil action for $$
Wait, What?
Failure to do so = grounds for dismissal
Signature certifies that a pleading supported by “reasonable factual investigation and “a normally competent level of legal research”
1. Language—says “may” impose sanctions (not "must," or "shall," etc.)
2. Goal: to deter improper conduct
a. P counsel acknowledged error, attempted to make it right
b. expected to "demonstrate greater diligence in the future”
3. Sanctions only for most egregious cases “patently unmeritorious or frivolous”
SO WHY FILE THE MOTION?
Rule 11 violated?
WHY NOT?
SANCTIONS Imposed?
De novo:

we start over, substitute judgment for that of the judge presiding
Wait, What?
"Standards of Review" on Appeal
11/4
11:00-Noon
1 Essay/Short Answer
10 MC
§6 - Rm. 1106
§5 - Rm. 1101
Motion to Dismiss for "failure to state a claim..."
Rule 12(b)(6)
Rule 8(a)
First:
Third:
Any problems with Rule 8(a)
(1) - pleading jurisdiction
or
(3) - demand for relief?
(If either is missing, then complaint does
not
satisfy Rule 8
Apply Rule 8(a)(2) : Is there a "showing that the pleader is entitled to relief?"
Second:
2 ASPECTS
A word from the King...
"Stop, Look & Listen ..."
"Stop, Think, Investigate, & Research" before filing anything written..
Makes a point, sets a tone
Abuse of discretion
– "
Discretion" means it’s up to the judge, lots of leeway, overturned ONLY if judge was way way out of bounds. (We might not do the same thing, but it’s not our courtroom, not our call.)
Deference to factual findings:

esp. any issue that required a determination of credibility of the witnesses
Clearly erroneous:

some benefit of the doubt, had to be so wrong on the law, that there is no excuse for not following it
Rule 11
DIVERSITY JURISDICTION
Holding:
Trial court ruling:
Other conduct?
The pleading or other writing in question?
The Main issues?
Atty. Hicks to pay $500K in atty fees!
but atty is not off the hook...
Remanded...
(8:15-10:15)
** NOT ONLY COMPLAINTS (See. Rule 7)
THE HAMMER!
Reas. Factual Investigation
Complaint re: ©
@ settlement meeting
in court
in related matter
9th Circuit (Appeal):
Plaintiff cannot be citizen of same state as
any
Defendant
P's atty, James Harrison Massey
many of the D’s are also South Dakota "residents", but not specified
Rule 11 motion vs:
The Complaint:
“Plaintiff and
some of the Defendants
are citizens of different states"
P given a chance to explain or w/d the filing;
“Would be more trouble than they should be expected to take”
“complicated, in depth, and possibly impossible inquiry” (to determine defendants’ citizenship)
Digs the hole deeper:
28 U.S.C. §1332
not about
m
u
l
t
i
c
u
l
t
u
r
a
l
i
s
m
...
Suits between citizens of diff. states
Trial Court did not abuse its discretion in sanctioning counsel...
but doesn’t!
prejudicial error:
an erroneous ruling may not be overturned unless it affected the outcome
Attorneys' fees?
NO!
YES!
Improper Purpose
DEFENSES RAISED BY MOTION (PRE-ANSWER)
DEADLINES & DEFAULT
Rule 12(a)
Knows he’s...
Rule 55
(a) Time to Serve a Responsive Pleading.
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent...
(i) within 21 days after being served with the summons and complaint; or
(A) A defendant must serve an answer:
(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
WHAT IF D. SIMPLY DOES NOT RESPOND
AT ALL
WITHIN 21 DAYS?
PROCEDURAL RULES THUS MUST BE DESIGNED TO PROMOTE
FINALITY
, BUT ALSO TO
GIVE WORTHY D's A CHANCE
For what possible reasons might that happen?
Will P know the reason?
D doesn’t get notice
Lack of comprehension
Lawyer
error / delay
carelessness
passive
/ aggressive
Not usually
(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.
(1) By the Clerk. If the plaintiff's claim is
for a sum certain or a sum that can be made certain by computation
, the clerk—on the plaintiff's request, with an affidavit showing the amount due—
must
enter
judgment for that amount and costs
against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
Effect = all allegations in the claim are deemed ADMITTED!
(2) By the Court. In all other cases, the party must
apply to the court
for a default judgment.
(b) ENTERING A
DEFAULT JUDGMENT
.
4. What do you mean, "stole"?

=
=
???
Rule 12(e)
Motion for a more definite statement
5. "Hey, who are you calling "punk"?
=
=
nada
Rule 12(f)
Motion to strike
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter
so vague or ambiguous that the party cannot reasonably prepare a response
**Usually pled as alternative to a motion to dismiss (esp. on Rule 9(b) grounds)
More apt for a defense
Rule 12(h)(2)
(A) in any pleading...;
(B) by a motion under Rule 12(c); or
(C) at trial.
Rule 12(h)(1): WAIVING AND PRESERVING CERTAIN DEFENSES
Rule 12(g) JOINING MOTIONS.

(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
.
12(b)(2) thru (b)(5) may be WAIVED (LOST) by:
(A) omitting from a motion (per Rule 12(g)(2)); or
(B) failing to either:
(i) make it by motion.... or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
}
Any time!
(Rule 12(h)(3)
The
How
of Responding
The
Effect
of D's response:
Failure to deny???
The fact is contested,
jury must decide
May be relied on by court in future rulings.
The allegation cannot later be contested
.

Fact is established for remainder of proceedings
Rule 8(b)(6)
(but NOT applicable to allegations of damages!)
= ADMISSION
IF
RESPONSIVE PLEADING IS REQUIRED
General Denial
(Deny Everything)
Deny for lack of knowledge sufficient to form a belief as to truth
***BUT REMEMBER:
Rule 11 (b)(4)
(So not very common)
Go ¶ by ¶,
and either:
or
Admit part that is true, deny the rest (outright or for lack of knowledge...)
Admit
Deny
If denied:
If admitted:
(a/k/a "averments")
to Allegations
Zielinski
Philadelphia Piers, Inc.
v.
P = forklift driver for JA McCarthy
Injured on the job
P.P.I.
J.A. McCarthy
2/10/53: Carload Contractors, Inc. reports claim to Ins. Co.
Sandy Johnson
PPI now admits it owned forklift, but leased to Carload for SJ to use
9/27/53: P learns of sale of freight biz to Carload (1952)
6/22/53: Discovery responses by PPI
4/29: Complaint tendered to Ins. Co.
4/28/53: Complaint filed vs. P.P.I.
2/9/53: Accident
The Civ Pro issue?
Rule 8(c)
(1) In General. In responding to a pleading, a party
must
affirmatively state any
avoidance or affirmative defense
, including:
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver
• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• lilegality;
Jones v. Bock
Under Prison Litigation Reform Act ("PLRA"),
exhaustion of admin. remedies
is now
required
(before filing suit)
Correction:
legal conclusions only
Does P have to plead that he did exhaust...?
Why does it matter?
Burden to Plead = Burden of Proof (a/k/a persuasion)
Compare:
By a preponderance (or "greater weight" of the Evidence
(51% is enough)
(***Not the Same as Criminal Law)
"Tie goes to the runner."
Ruling:
Failure to exhaust
is
an Aff. Def.
THE PROCEDURAL ISSUE:
OR

does
D
have to plead that Pl.
did not
?
(Affirmative Defense)
PLRA does not specify, either way
WHY?
Thus, we follow common practice in similar laws
Is it on the list in 8(c)?
Let's Do It!
(practice)
3. (10 Min.) In
groups of 4
, compare notes as to each paragraph. Circle your group choices
on 1 master copy
.
1. (5 Min.) On your own: Read complaint in conjunction with draft answer.
2. Circle your choice for a response to each paragraph
4.
Each member of group
should be prepared to report on your conclusions, & defend them.
Sprouse's Tale: "I'z going down the road, my lady friend spied an old outhouse like one she had growin' up. She asked if we could pull over so she could take a pitcher, and I said, "sure," but I wasn't going to pull over & stop, so I told her I'd just slow down, real slow, & she could get her pitcher real quick. I looked in my mirrors to see if they was any traffic behind me, and then I took my foot off the gas, & slowed down for her to shoot. Next thing I knowed, that lady done slammed on brakes and near 'bout run into me. Her husband was all fired up, and I mighta yelled at him a li'l bit, but I never touched him, nor her. I hate that her face got all busted up, but it warn't my fault.
Example:
By the time the error is discovered, why can't P sue Carload?
“...a motor-driven vehicle known as fork lift or chisel, owned, operated and controlled by the defendant, its agents, servants and employees, was so negligently and carelessly managed... that the same... did come into contact with the plaintiff causing him to sustain the injuries...”
STATU
T
E OF LIMITATIONS !!
“Defendant ... denies the averments of paragraph 5”
PPI’s response in its Answer:

Complaint, ¶ 5:
Which are what?
No (Carload)
Operated by PPI?
Yes!
Owned by PPI?
Effect on Plaintiff's Case???
THE REMEDY:

Therefore allegations re: ownership & operation DEEMED ADMITTED
Defendant's Denial of ¶ 5 ruled "insufficient"
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course
within:
(2) Other Amendments. In all other cases, a party may amend its pleading only with the
opposing party's written consent
or
the court's leave
. The court should
freely
give leave
when justice so requires
.
Rule 18
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading
or
21 days after service of a motion under Rule 12(b),(e), or (f), whichever is earlier.
(A) 21 days after serving it, or
(b) AMENDMENTS DURING & AFTER TRIAL.
(a) AMENDMENTS BEFORE TRIAL.
(2)
For Issues Tried by Consent
. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue.
(1)
Based on an Objection at Trial
. ... the court may permit the pleadings to be amended [to conform to evidence offered]... when doing so will
aid in presenting the merits
and the objecting party fails to satisfy the court that the evidence would
prejudice
that party's action or defense on the merits...
"Relation Back" of Amendments
(1) ... An amendment to a pleading relates back to the
date of the original pleading
when:
Rule 15(c)
(C)
the amendment
changes the party or the naming of the party against whom a claim is asserted
, if Rule 15(c)(1)(B) is satisfied
and
if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
or
(B)
the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out
—or attempted to be set out—in the original pleading;
(A)
the law that provides the applicable statute of limitations allows relation back;
(ii) knew or should have known that the action would have been brought against it, but for a
mistake concerning the proper party's identity.
(i) received such
notice
of the action that it will not be prejudiced in defending on the merits; and
Moore v. Baker
Bonerb
v.
Beeck v.
PI case for negligent mfctr. of water slide
Moves to amend
answer to deny making it
Def. initially admits mfctr.
(in answer and in discovery responses)
Pres. visits acc. site
Consent by Pl.?
So must get leave of court
Too late to amend as of course.
Does "justice so require[]"?
No bad faith by D.
(well, not
yet
, that we know of)
No prejudice to P.
*No abuse of discretion to allow amendment
But Def. knew about knockoff slides before this!
If not allowed to amend, how would D. defend vs. claim of negligent mfctr.?
Dr.
Initial claim:
lack of informed consent (treatment options)
P. seeks to amend complaint to allege negligence
Doc files MSJ
S/Lim has expired,
so new claim is time-barred
IT RELATES BACK TO INITAL FILING
UNLESS.
..
Does new claim arise out of the "conduct, transaction, or occurrence set out" in complaint?
NO!
???
Ct. focuses on notice to D.
Original claim:
New claim:
Negl. maint. of court
"counseling malpractice"
New Lawyer,
"...when justice so requires..."
Ct. says adding new legal claim is OK if factual situation is the same & has been brought to D's attention
"failure to properly supervise and/or instruct ..."
Discovery still in progress
*Timing is Key:
RULE 14. THIRD-PARTY PRACTICE

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

(1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be
liable to it

for

all or part of the claim against it
.
(a) IN GENERAL. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims,
as many claims as it has

against an opposing party
.
a Plaintiff MAY sue a Def. for
any and all claims
she may have against that Def.
REGARDLESS
OF TYPE OF CLAIM OR WHETHER SAME FACTS ARE INVOLVED
*COURT CAN HOLD SEPARATE TRIALS, IF NECESSARY (See Rule 42)

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

(A) when the action was commenced, the claim was the subject of
another pending action...
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
(A) arises out of the
transaction or occurrence that is the subject matter of the opposing party's claim
; and
(1) In General. A pleading
must
state as a counterclaim any claim that—at the time of its service—the pleader has
against an opposing party
if the claim:
(a)
Compulsory
Counterclaim.
**Main effect of failing to allege a compulsory counterclaim in pending action =
WAIVER OF CLAIM, CANNOT BRING IT LATER
Any c/c that is not COMPULSORY is: PERMISSIVE
MAY be joined, per Rule 13(b)
Plant v. Blazer Financial Svcs.
a permissive counterclaim
must have its own
independent basis for jurisdiction
Obligor on Promissory Note
Never made a pmt.
The Civ Pro Issue?
Is D's c/c for breach of the loan
compulsory
or

permissive
?
c/c for non-payment of loan
Claim under
Truth in Lending Act (15 U.S.C. §1640)
Why does it matter?
Rule 13: Is it part of the same "transaction or occurrence"?
Crossclaims
Rule 13(g)
A pleading may state as a crossclaim any claim by
one party
against a
coparty
if
:
1. RESPONDING PARTY HAS
NO NOTICE
2 MAIN
EFFECTS
OF
FAILING
TO PLEAD AN AFF. DEF.
(BUT... PLEADINGS MAY BE AMENDED...)
MAY BE
DEEMED
TO HAVE BEEN
WAIVED
UNFAIR FOR ISSUE TO BE TRIED
2.
No, but that's not all of them...
(if it is the last pleading allowed)
This Court rules "yes," so it
is compulsory
But many courts have disagreed...
Courts have used 4 tests
"LOGICAL RELATIONSHIP"
Common questions of law & fact?
(Based on policy concerns)
The crossclaim
may
include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
or i
f the claim
relates to any property that is the subject matter of the original action
.
the claim arises out of
the transaction or occurrence that is the subject matter of the original action
or

of a

counterclaim
,
3 Parts:
GRAMMAR
Remaining 20 points:
II. 2 Part short essay question
(50 points)
III. 10 MC Questions
(30 points total)
I. Factual Background
(FOR ALL QUESTIONS)
"FLOW"
ORGANIZATION
SPELLING
WORD USAGE
VOCABULARY
What if Plaintiff discovers,
after the statute of limitations has run
, that it has sued the
incorrect defendant
(and now seeks to amend the complaint)?
due to a sale of the company
(as in Zielinski v. PPI)
Related or affiliated companies
Examples:
(only rule
for Pl.
is...)
*Does NOT arise out of the S.T.O.
*Still must be vs. OPPOSING party
Therefore properly part of this lawsuit
(Basically, same procedures, same duties as Defendant's in filing Answer to Complaint)
Rule 8
May Plaintiff (counterclaim-defendant) file a Rule 12(b) motion?
Sure!
Affirmative Defenses?
YEP
*except...
(because "service" is different for complaints...)
probably NOT (2)-(5)!!
Between Defendants
i.e., a claim to require sharing of liability
DEFENDANT 3
DEFENDANT 2
DEFENDANT 1
VS.
PLAINTIFF
Claims in Complaint
FACTUAL
R. 8(B)
DENIAL
AFFIRMATIVE DEFENSE
CROSSCLAIM
Counterclaim
Permissive)
(Compulsory
or

Claims in Complaint
Claims in Complaint
THIRD PARTY DEFENDANT
Third Party
(Impleader)
Complaint
FACTUAL
R. 8(B)
DENIAL
AFFIRMATIVE DEFENSE
FACTUAL
R. 8(B)
DENIAL
FACTUAL
R. 8(B)
DENIAL
FACTUAL
R. 8(B)
DENIAL
CROSSCLAIM
WHEN MULTIPLE PLAINTIFFS
MAY
JOIN TOGETHER
Rule 14
Third Party Practice and Impleader
(3)
Plaintiff's Claims
Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the
transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff
. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).
(A) must assert any Rule 12 defenses;
** NOT ONLY "S.T.O."!
contribution
indemnity
Rule 14(a)(2) - 3PD must respond
Liability must be

derivative
"hold harmless"
(D)
may
also assert
against the plaintiff

any claim
arising out of the

transaction or occurrence

that is the subject matter of the
plaintiff's
claim
against the

third-party plaintiff
.
(C)
may
assert
against the plaintiff

any defense that the

third-party plaintiff

has to the plaintiff's claim; and
(B) ...
must
assert [compulsory] counterclaims vs.
third-party plaintiff
(Rule 13a),
may assert any [permissive] counterclaim vs.
third-party plaintiff
(Rule 13(b))
or any crossclaim vs.
another third-party defendant
(Rule 13(g))
Mosley
Required
Joinder of Parties
Joe buys a car...
Joe Sells cars for Trump Auto...
Uh-Oh...
Joe
Complains
Uh oh...
Uh oh!
(again)
(not again!)
Joe has Claims for:
Breach of K
Wrongful termination
Negligence
Permissive Joinder
(of Multiple Defendants)
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences
;
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences
;
Rule 20(a)
(2) Defendants. Persons... may be joined in one action as defendants if:
(B) any
question of law or fact common to all defendants
will arise in the action.
and
Persons Who
May
Join or Be Joined
(1) Plaintiffs. Persons may join in one action
as plaintiffs
if:
Price v. CTB, Inc.
Def. is trying to
PASS ITS LIABILITY ON
to another
Defendant /
3P Plainitff
3rd Party Defendant
A manufacturer of a product has impliedly agreed to indemnify the seller when:
1) the seller is without fault,
2) the manufacturer is responsible, and
3) the seller has been required to pay a monetary judgment.
Illinois Tool Works ("ITW")
(and Latco, Inc.)
vs.
(3rd Party Complaint )
Impleader under
Rule 14 requires
derivative liability
Procedural Issue?
Does Latco have a proper claim vs. ITW under Alabama law?
Rule 14 permits Latco to implead

any party who
"may be liable..."
(i.e., if Latco loses to Price)
"
implied
contractual indemnity"
YES!
Common law indemnity?
Contractually?
No
Contribution (for torts)?
No
Claim is permissible
"fault" TBD later
But the third-party plaintiff must, by motion, obtain the court's

leave
if it files the third-party complaint
more than 14 days after serving its original answer.
WHAT IF PLAINTIFF THEN WANTS TO ASSERT CLAIMS VS. THE NEW 3PD?
Rule 12(b) Defense or Motion
Rule 12(b) Defense or Motion
AFFIRMATIVE DEFENSE
Rule 12(b) Defense or Motion
New Claims
!
v.
(& 9 other Employees)
Procedural Question:
2 vs.
8 vs.
42 U.S.C. §2000e
(Title VII of the Civil Rights Act of 1964)
Complaint Alleges:
PLUS retaliation for complaining
"GENERAL POLICY OF..."
relief time
firing,
hiring,
promotions,
racial & gender discrimination in:
question of law or fact common
to all Ps
&
they arise from
S.T.O
.
--Rule 20 permits Ps to bring claims jointly if:
Reverses

8th Circuit Ct. App.:
District court:
May all
10 Plaintiffs
sue in same lawsuit?
Federal Statutes:
42 U.S.C§1981 (RD in forming contracts)
Orders 10 Ps to file separate complaints
(B) any
question of law or fact common to all plaintiffs
will arise in the action.
and
*Even though the
effect
on each P may have been different
(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Remember Rule 12(b)(7)?
C
OURT can't
A
CCORD
R
ELIEF among existing
P
ARTIES
P
ERSON has an
I
NTEREST in
S
UBJECT of
A
CTION
P
ARTY AT
R
ISK
O
F incurring
M
ULTIPLE obligations

C
LAIMANTS
A
BSENCE hurts its
P
ROTECTION
E
FFORTS
But NO
SMJ Destroyers!
(a) INTERVENTION
OF RIGHT
.
On timely motion, the court
must
permit anyone to intervene who:
(b)
PERMISSIVE
INTERVENTION.
(B) has a claim or defense that shares with the main action a common question of law or fact.
(A) is given a conditional right to intervene by a federal statute; or
(1) In General. On timely motion, the court
may
permit anyone to intervene who:
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest,
unless existing parties adequately represent that interest
.
(1) is given an unconditional right to intervene by a federal statute; or
INTERVENORS
Does this meet the requirements of FRCP 4(e)?
Purposes of Having a Corporate Entity:

Corporations, Partnerships, etc.
Rule 4
NOTICE &
SERVICE OF PROCESS
Wait, What?
Rule 4(m)
or else what?
Complaint may be dismissed for
FAILURE TO PROSECUTE
Rule 19
"failure to join a necessary party"
(a) Persons
Required
to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of process and whose joinder will
not deprive the court of subject-matter jurisdiction
must
be joined as a party
if
:
May deny facts, per Rule 8(b), and/or :
Serving a "Natural Person"
Required papers to commence a lawsuit
Service of
Subsequent
Pleadings, Motions, Discovery, etc.
Notice to employee not necesarily = notice to corp.
So who counts?
protection of assets
separation of liability,
tax benefits
*Can renew/extend
w/in 120 days of filing complaint
Wait, What?
-- Rule 5
Usually atty. to atty.
Wider range of permissible methods
Less stringent rules

Delivery of
by a means or method authorized by law or statute...
to a party
SUMMONS:
"You are under the court's authority..."
COMPLAINT
Notice of claims
By when?

P can re-file...
Summons "expires"
unless S.O.L. has also run out!
=
Serving a natural person within the U.S. may be accomplished by:
Rule 4(e)
(A)
delivering
a copy of the summons and of the complaint to the individual
personally
;
How about this?
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
4(h) ...a domestic or foreign corporation, or a partnership or other unincorporated association... must be served:
(1) in a judicial district of the United States:
(B) by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent
,
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
(B)
leaving a copy
of each at
who resides there
; or
with

someone of suitable age and discretion

the
individual's

dwelling or usual place of abode

(2) doing any of the following:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
or any other
agent authorized by appointment or by law to receive service of process...
Any
non-party
By whom?
Over 18
years of age
ALL THE EVIDENCE OR INFO THERE IS
DISCOVERABLE
RELEVANT
ADMISSIBLE
PRIVILEGED
(INADMISSIBLE &
UNDISCOVERABLE)
PERSUASIVE?
THE SCOPE OF DISCOVERY
(to the claims or defenses)
Butler v. Rigsby
AMG & MHC
"any matter, not privileged, that is relevant to any party's claim or defense"
requests must be "
reasonably calculated
to lead to the discovery of admissible evidence"
Rule 26(b)(1)
1. List of total # of patient referrals from P's attys.
3. List of current & past patients
(A Brief Overview)
"the exchange of information between the parties in a lawsuit,
AND the obtaining of information and testimony from non-parties"
THE "TOOLS"
REQUESTS FOR PRODUCTION OF DOCUMENTS
Rule 26 (a)
Similar to Complaint:
BUT more detailed
Responding party must admit or deny
**D gets a a shot also
***If no response, may be

DEEMED ADMITTED!
THE (EVER) EXPANDING DEFINITION OF "DOCUMENT"
Under oath
Party’s own answers,
but usually very "lawyerized" answers
+ lots of objections
Party
DEPOSITION
INTERROGATORIES
SUBPOENA
REQUESTS FOR ADMISSIONS
INITIAL DISCLOSURES
(TO A PARTY, ONLY)
Rule 36
Rule 30
Rule 45
Rule 34
Rule 33
(TO PARTIES OR
NON-PARTIES
)
Fact Witness
Corporate officer or employee
of a party
Expert Witness
2. Net Income of Companies, & % related to lawsuits
3 items:
PRIVILEGED!
INFO SOUGHT NOT RELEVANT
Rule 12(c)
Rule 56
ET OWN, Y RIEND!!!
G
the movant is entitled to
judgment as a matter of law
.
as to any
material fact
and
no

genuine dispute

Summary judgment is appropriate when the movant shows that there is
**a/k/a "no
genuine

issue
..."
F
M
D
Carter Houchens Disappeared August, 1980
Celotex v. Catrett
Houchens v. American Home Assurance
Bias v. Advantage International, Inc.
oops...
P'S ev. has raised no GENUINE issue of fact:
Bias had been a drug user
No LI available even if sought
Affidavits by 2 former teammates re:
observations
of his drug use
P’s evidence in response to MSJ:
D’s affirmative defense:
THEREFORE,
D MUST PROVE
:
No policies available
Or would have been denied a policy (or a later claim) for misrepresenting that fact
Since Bias was a coke user; either would have been denied policy once he disclosed that
D's evidence:
DIST. CT. RULING:
AFFIRMS
APP. CT.:
SJ FOR DEF.

D files MSJ
Every available insurance co would have inquired re: drug use, at some point
and
(IF TRUE,
DISPUTED ISSUE
OF
WHETHER DEF. PROMISED TO PROCURE INSURANCE

BECOMES IRRELEVANT)
RATIONALE??
No rebuttal of evidence that drug use would come up in insurance underwriting,
AT SOME POINT
** P’s atty did not take depositions of Long & Gregg (so credibility assumed)
Only D's Witnesses addressed relevant time
2. Was decedent exposed to asbestos
made by Celotex
?
When Celotex files MSJ,
how does it establish NGIMF re: 2nd issue?
Asbestos exposure claim
2 PRINCIPAL ISSUES OF FACT:
PLAINTIFF
WHO BEARS BURDEN OF PROOF
AT TRIAL
?
The Procedural Q:
1. Was asbestos exposure the cause of his death?
Demonstrate that
P has had oppt
y., but
has failed to prove
exposure to its product
Prove
that D was
not
exposed to its product
2 OPTIONS:
REMAND
TO CT. APP. TO DECIDE ADEQUACY OF SHOWING
RESULT:
For the purpose of inheritance, LI benefits, SS benefits
Beneficiary must
PROVE
death was accidental
Each policy will pay only for ACCIDENTAL death
Legal Issue:
No dispute that he is legally dead.
Wife Alice, seeks to collect on 2 Life Ins. Policies
Under Va. Law.,
Missing for 7 years =
presumed dead
Last Known Whereabouts:
Fact Issue:
Wait, What?
Defendant Files MSJ
P cannot carry this burden, even if discovery continues
THEREFORE NO NEED FOR TRIAL
D WINS
NOW
No evidence that he died accidentally
No evidence that he was in a "position of peril" (Martin case)
All we know here is that he disappeared
Ruling Affirmed on Appeal
Motion Granted
NO GENUINE ISSUE OF MATERIAL FACT
may even still be alive
suicide, murder, old age?
Also could be:
Like motion to dismiss (Rule 12(b)),
but
:
(Based on what has been
admitted,
is moving party entitled to
judgment as a matter of law
?)
court considers any
responsive pleadings
also.
An effort to simplify all of this:
WAIVER
Rule 4(d)
To request:
Plaintiff may request Defendant to "waive" the requirement that it be served with a summons.
2. D who refuses to waive service, without good cause. "will have to pay for expenses later incurred in making service"
1. D who waives service will get
60 days
to file responsive pleadings
2 incentives:
Give D reasonable time (at least 30 days) to decide
Explain effects of waiver
Send complaint + waiver form + to the party to be served (officer, agent, etc.)
To a non-party
OR at trial)
(at deposition
AND/OR testimony
For documents,
Oral testimony, under oath
(i.e., MSJ, Cross Ex at trial)
Result = written transcript
May
be videotaped
Always recorded & transcribed
Not
in court
Used as evidence
...to Defendant's Options for Responding...
Motion for Entry of Default
C
D
e
f
a
u
l
t

J
u
d
g
m
e
n
t
A
Motion to Dismiss
Motion for Judgment on the P
l
e
a
d
i
n
g
s
Motion for Summary Judgment
affidavits
Forecast of Evidence
interrogatory responses
documents produced
deposition transcripts
Trial
Function of Jury*
Rules on Questions of LAW
Decides Disputed Issues of Fact
Which witnesses are more credible?
"How much should plaintiff be awarded in damages?"
"Was the Plaintiff injured by the negligence of the Defendant?"
"Did the P & D enter a contract?"
"Did D breach the contract?"
Were all the injuries claimed caused by THIS accident?
When was the contract entered?
To what terms did the parties actually agree?
Who ran the red light?
What was (or wasn't) said or communicated?
What actually happened?
When & how trial happens...
Is there enough evidence to create a triable issue of fact?
Jury Instructions on the Law to Apply
What law governs?
What evidence is admissible?
What are the claims/issues upon which the jury will deliberate?
*Unless no right to jury trial on certain claims
(e.g., family law, foreclosures)
or when right to jury trial is
WAIVED
Renewed motion for JML post-verdict
Rule 50
WAYS TO WIN!
(PRE-TRIAL STYLE...)
no
genuine dispute

of
material fact
genuine dispute
of
material fact
DISCOVERYTIME
!
Civ Pro
EXAMMY
CARD!!
Rule 56
Movant must show there is
FIRST, READ & UNDERSTAND!
STEP 2:
STEP 1:

CIV PRO
of
material fact
no
genuine dispute
(Think it through!)
non-movant
must come forward with
evidence (from discovery) of "specific facts"
to show there is
a
genuine dispute
for trial
(A) If
movant
has
Burden of Proof
, then
movant
cites its evidence and non-movant's
complete inability to rebut
Movant must demonstrate
from the evidence gathered in discovery that there is no
GD
MF
(Celotex)
:
MOTION FOR SUMMARY JUDGMENT
and it is thus entitled to
J.M.L.
(B) If non-movant has
BoP
on a claim, then
movant
shows non-movant's utter lack of evidence on the claim
OR
Is there a
genuine dispute
?
Identify
evidence
for
movant
& then
evidence
for non-movant
Identify the
material facts
(that actually matter to the legal question)
Who bears the ultimate
Burden of Proof
(at trial) on the LQ?
Identify the legal question (substantive law)
STEP 3:
APPLY
THE FACTS TO THE RULES YOU JUST ARTICULATED, &
iF MOVANT FAILS TO MAKE THIS INITIAL SHOWING, MSJ SHOULD BE DENIED!
IF MOVANT MAKES THIS INITIAL SHOWING, PROCEED TO NEXT STEP
PROVIDE
CONCLUSION
THAT ANSWERS THE CALL OF THE QUESTION
(a) Judgment as a Matter of Law.
[may be entered]
a/k/a "Directed Verdict"
(2) Motion. A motion for judgment as a matter of law may be made at any time
before the case is submitted to the jury
.
(1) if a party has been fully heard on an issue during a jury trial and the court finds that
a reasonable jury
would not have a
legally sufficient evidentiary basis to find for the party
on that issue...
Consider the following scenario:
**a prerequisite for a similar motion, post-verdict
FACTS MUST BE VIEWED "IN THE LIGHT MOST FAVORABLE TO THE NON-MOVANT”
Reid v. San Pedro, Los Angeles, & Salt Lake RR
RR is Liable
RR NOT Liable
Who has BofP?
Plaintiff/Respondent
Jury: Rules for P
Judge should have granted motion for DV
Verdict "not supported by evidence"
Appellate Court:
Motion for Directed Verdict:
DENIED
What was the evidence?
McKey v. Fairbairn
Slip & Fall, wet floor due to roof leak
(Issue of Notice to LL would not matter any more)
THEN, later moves to amend to allege violation of DC Housing Regulations
AND during trial
Theory confirmed in Pretrial Order
LL had been notified re: leak but failed to repair
Legal theory initially pled:
Judge denies motion to amend
ON APPEAL:
AFFIRMED
Rule 50(b):
Renewing
the Motion After Trial; Alternative Motion for a New Trial.

If Rule 50(a) motion for JML is NOT granted,
"the court is considered to have submitted the action to the jury
subject to the court's later deciding the legal questions raised by the motion
."
Rule 59
21 days, no response?
Must prove damages by evidence!
sufficiency of complaint (Rule 12(b))
Take 5 Minutes:
Assume Plaintiff's sole claim is for battery. Draft a
rule block
for a MSJ filed by Defendant.
Next: 5 Min.
Pair & Compare
Enters
Directed Verdict
for LL
(3) direct the entry of judgment as a matter of law.
(2) order a new trial; or
(1) allow judgment on the verdict, if the jury returned a verdict;
A moment for reflection....
3. "Why do we fall, Bruce?"
But you are on the path....
1. This is tougher than you thought it would be...
2. You are not yet what you are becoming, either...
Showing must be made by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials....
At (or near) the conclusion of discovery...
The affiant....
But at trial....
Rule 56(c)(1)(A)
Showing must be made by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials....
Rule 56(c)(1)(A)
Court has 3 options:
"No later than 28 days after the entry of judgment..."

[M]ovant may file a
renewed motion for judgment as a matter of law

...may include an alternative or joint
request for a new trial under Rule 59.

Start planning now if you want to take advantage of office hours before the final.
Rule 60
Peterman Parachutes purchased 1000 sq. yds. of fabric from Defendo's Fine Fabrics. The fabric Defendo supplied was not waterproof, as had been specified in the contract, & as required for the manufacture of parachutes. P therefore sued D for breach of contract. At trial, Percy Peterman, plaintiff's president, testified (and provided documentation that he had to procure and apply waterproofing chemicals at a cost of $2 per sq. foot. in order to render the fabric usable for manufacturing, so Peterman was claiming damages in that amount.

The jury found in favor of Peterman on the breach of contract claim, and that all of the fabric ordered was defective The jury therefore awarded the sum of $2,000.00 in damages for the costs of remedying the defect in the fabric. Only after the judge entered a judgment based on the jury's verdict did Peterman's counsel realize the jury had made an error in the calculation of the damages award.
2) Under what rule may Peterman's counsel seek to remedy the error?
1) What was the jury's error?
Consider the following:
3) How long does Peterman have to file the motion?
Multiplied cost per sq. ft x # of sq. yards.
???
or (b)(1)
Rule 60(a)
$18,000.00
Correct award =
Reas. time, not > 1 year
(c) TIMING AND EFFECT OF THE MOTION.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
(a) The court may correct a
clerical mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of the record. ....
(6) any other reason that justifies relief.
(3) fraud... misrepresentation, or misconduct by an opposing party;
...
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(1) mistake, inadvertence, surprise, or excusable neglect;
(b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(2) Effect on Finality. The motion does not affect the judgment's finality or suspend its operation.
v. Chamberlain
"near dusk of a misty evening"
P = brakeman, killed
B
Lone witness for P.:
No collision
3 witnesses for D:
(not unusual)
later heard a loud crash
saw P roll by
"paid little attention"
Bainbridge
He "inferred" there was a collision
(did not claim to see one)
"sharp angle"
D moves for Directed Verdict
Motion granted
Ct. App. reverses
U.S. S. Ct.:
Trial Court was correct!
"for any reason for which a new trial has heretofore been granted in an action at law in federal court"

1. Error in a legal ruling by judge:
(brought to court's attention by a motion, or realized on its own)
Lind v. Schenley Industries
U.S. CONSTITUTION, AMENDMENT VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Often made in conjunction with Motion under Rule 50
Juror misconduct

Jury hears about insurance coverage
2 major types of grounds:

Attorney misconduct
Re: admissibility of evidence
Incorrect jury instruction
Judge can rule conditionally (i.e., in the alternative)
What if an attorney says something in closing argument that he is not allowed to?
What if, during deliberations,
counsel learns that there is a juror who has not followed instructions about contact with parties?
2. Verdict is "against the greater weight of the evidence"
Why?
NEW TRIAL ORDER
denies making promises
WAS ALSO ERROR
Why?
JNOV WAS ERROR
ON APPEAL:
Judge enters JNOV, or in the alt., a new trial
PROCEDURAL ISSUES:
Jury finds a contract, awards $
FACTS:
P and secretary (Mrs. Kennan) testify that D made oral promise of additional employment compensation
D'S DEFENSE:
Examines the #s
Dissent:
MNT under Rule 59 (re: GWE) is left to trial court's discretion
28 U.S.C. § 1291
The courts of appeals... shall have jurisdiction of appeals from all
final decisions
of the district courts.
An order that is
not final:
"
interlocutory
"
Apex Hosiery v. Leader
FINALITY
ADVERSITY
NOTICE/PRESERVATION OF THE ISSUE
3 MAIN CONCEPTS
PRIOR ADJUDICATION
(ordinarily)
is NOT appealable
Defendant ordered to produce documents for inspection & copying (Rule 34)
Court lacked jurisdiction because order was not final
Appeal Dismissed
Which of the following
are
final decisions?

1. Denial of MtoD Rule 12(b)(6)?

2. Granting of MtoD (12(b)(6))

3. Granting of rule 12 (b)(6) motion, BUT judge in his discretion allows P to amend?

4. Ruling on Motion for leave to amend?

5. Grant of MSJ

6. Denial of MSJ?

7. Ruling on MOTION TO COMPEL discovery?

NO
NO

(because finding of GDMF means Trial)
NO
(*as to prevailing party)
YES

NO
YES


NO
but...
3rd Circuit Ruling:
Anti-trust claim
Any loss
means it has to
pay judgment, or provide relief
, so it is NECESSARILY a losing party.
If P gets
less $ than it wanted/asked for
(on a
single claim
)?
FOR A PLAINTIFF:
QUESTIONS WE MUST ASK:
What if party files
multiple claims
, wins on some claims, loses on others?
Is it able to appeal?
If so,
which claims
can be the subject of an appeal?
APPEAL CAN ONLY BE TAKEN FROM AN
ADVERSE
RULING
Easy cases:
Only the
losing party
can appeal
D wins at trial, P can appeal
P wins at trial, D can appeal
How did loss
affect the outcome?
Which party
wants to appeal?
FOR A DEFENDANT:
(So right of appeal is usually not in question.)
Rare for D (in ordinary case) to have a “partial” win.
(including re: affirmative defenses)
P only can appeal to the extent the other claim might have permitted a larger award of $, or a different remedy (e.g., specific performance vs. $ damages)
1. Claims for breach of 2 separate contracts (1 win, 1 loss)
Examples:
(only if having both =
more & different
relief awardable)
2. 2 separate & distinct breaches of same K?
Should be able to appeal the loss
3. House poorly constructed, destroyed by electrical fire; P brings claim vs. builder for breach of K, separate claim for negligent construction
(Wins 1, loses 1)
If same award would result from either claim, P cannot appeal
If
lost/dismissed claim could have entitled P to get
more or different relief
than it was awarded,
then
loss or dismissal
can be appealed
What if P brings
multiple claims
, wins on some, but others are dismissed (or the jury rules for D)?
evidence called for applying a very basic formula & jury’s verdict was way off (i.e., vs.. greater weight of evidence)
jury was instructed incorrectly re: calculation of damages
Usually
no right of appeal-
Mootness
Cross-Appeals
2 Related Concepts:
Forbids a party from re-litigating a CLAIM that was – or could and should have been – litigated in a prior case
Forbids re-litigation of specific
issues
that were
actually litigated
in a prior case
(a/k/a res judicata –
“a thing decided”)
Rush v. City of Maple Heights
Elements of Claim Preclusion:
(4) The court that issued the prior judgment had subject matter jurisdiction
(3) The prior judgment was
(a) a final judgment, and
(b) on the merits
(2) The party against whom claim preclusion is being asserted was a party to the prior action
(1) The claim asserted in the subsequent action is a claim that was asserted in the prior action
*OR one that
could and should have been

1. When an issue of fact or law
THEN (EFFECT) THE DETERMINATION OF THAT ISSUE IS CONCLUSIVE IN A SUBSEQUENT ACTION BETWEEN THE PARTIES, WHETHER ON THE SAME OR A DIFFERENT CLAIM
5. And the party against whom preclusion is sought had an “adequate opportunity and incentive” to litigate the issue in the prior proceeding
4. And that determination is essential to the judgment
3. By a valid and final judgment
2. Is actually litigated and determined
IT LOSES ON THE MERITS
AFTER
FINAL JUDGMENT, IF...
When can a losing party appeal them?
What if Judge was wrong?
*** WHAT ABOUT THOSE
INTERLOCUTORY
ORDERS:
a/k/a "collateral estoppel"
*UNLESS...
or

Aetna Casualty & Surety Co. v. Cunningham
1. Breach of contract (surety agreement)
If denial of one claim results in plaintiff not getting the relief to which it is entitled,
whether in the amount or the quality

of the judgment,
it has a right to be heard on appeal
P =Construction
surety
:
has to step in for contractor (D) who cannot complete construction;
Recovery on 1 theory (K) is vulnerable to discharge in BK
YES!
Court of Appeals:
Is "adversity" requirement met?
Is Aetna “losing party’?
Procedural Question:
Aetna appeals
but
not on fraud claim
Rules in favor of Aetna on Breach of K,
2 theories of recovery:
District Court:
2. Fraud by contractor
Holding:
later sues contractor to recover funds it had to pay to finish
Judgment for fraud would not be
When and how can a party seek review of erroneous rulings by trial court?
NO "SANDBAGGING"
*OR is in
privity (of contract)
with such a party
Ofc. hours 12/9
will be later... (3-5?)
2. Negligence = PC of accident
Lawsuit #2
Lawsuit #1
1. City was negligent for not repairing
Municipal Court
3. Award = $100 for property damage
Findings:
Common Pleas Court
SAME PARTIES?
*WHICH PARTY INVOKES "PRIOR ADJUDICATION"?
SAME CLAIM?
YES
BOTH!
(That's the Question on Appeal!)
What's the difference?
Suit for personal injuries
Aff'd by Ct. of Appeals
Award = $12K
Jury trial on Damages, ONLY
Negligence & PC already determined
ISSUE PRECLUSION
CLAIM PRECLUSION
FINAL JUDGMENT?
YES
C.P. PRECLUDES ANY CLAIM A PARTY
OR
COULD HAVE/SHOULD HAVE BROUGHT IN PRIOR ACTION
E.G., DIFFERENT THEORIES OF RECOVERY ON SAME SET OF FACTS
or
COMPULSORY COUNTERCLAIMS!
Frier v. City of Vandalia
$10 to retrieve
Round 1:
3 Lawsuits:
State court suits seeking remedy called “replevin”
(to retrieve car)
1 (re: 2 cars) dismissed
2 cases consolidated & tried
Municipal court rules in favor of cops,
towing was proper
Or could have argued Constitution as his basis for replevin
Rationale:
*Procedural note:
What kind of motion did the City file?
Rule 12(b)(6) motion
But court reviewed transcript of prior action
*Should have treated
it as...?
MSJ!!
Round 2:
Federal claim for violation of constitutional rights
(42 U.S.C. §1983)
Federal District court:
Dismisses Subseq. Action
7th Circuit:
AFFIRMS, BUT...
DIFFERENT RATIONALE
Frier “had his day in court in the replevin action”
notice, full hearings
Merits of the Claim
(City's procedures were fair)
Wait, What?
Illinois Law:
One suit precludes a second “where the parties and the cause of action are identical.”
RATIONALE:
P could have joined const. claims with action for replevin
CLAIM PRECLUSION!
But how does the court determine that?
SECOND LAWSUIT
:
Jessie then sues for
his own injuries
Illinois Central Gulf RR v. Parks
Bertha
Jessie
When a spouse is injured, the other spouse loses his or her companionship, assistance, marital relations, & can recover compensatory damages
Claim is by definition"derivative"
(rises or falls with injured spouse's claim)
Loss of consortium:
Jessie also had a claim for “loss of consortium”
Bertha sues, & recovers $30,000
Awarded $0
(a/k/a “estoppel by judgment”)
FIRST LAWSUIT:
Claim Preclusion?
WHAT SAME ISSUES?
Nope—Indiana uses narrow test for determining "same claim"
derivative
claim for LoC is a different cause of action
Issue preclusion?
TOO SMALL
OR
CONTRIBUTORY NEGLIGENCE
WHY?
(but Jesse's claim WAS DENIED!)
PROX CAUSE
RR'S NEGLIGENCE
How do we know it?
Who has to show it?
YES
EITHER:
IT'S
YOUR TURN
TO TEACH US ABOUT
PERSONAL JURISDICTION
!!!
Using one of the following songs, compose and record a parody song that explains the concept of personal jurisdiction, and provides
accurate statements of the rules
governing it (with helpful examples or case references where possible).
ENTRIES DUE BY 5:00 P.M., SHARP, ON DECEMBER 9!
Official rules, judging criteria, and submission instructions will be posted to D2L by NOON tomorrow.
Work in groups of up to 6 people.
THIS IS VOLUNTARY,
NOT REQUIRED
.
However, all participants will get at least 2 extra points added to final numerical grade.

Top 3 entries will get 3, 4, and 5 points (per person), respectively.
Videos need not be slick, but they do need to be audible/clear.
The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States
.
CONCURRENT JURISDICTION (either court system is okay)
STATE LAW JURISDICTION
FEDERAL JURISDICTION
EXCLUSIVE:
Domestic law
THRESHOLD QUESTION:
DID 1ST ACTION RESULT IN FINAL ADJUDICATION ON THE MERITS?
Civ Pro
EXAMMY
CARD!!
DETERMINING PRECLUSIVE EFFECT OF A PRIOR ADJUDICATION
Effect of Claim Preclusion:
Entire 2nd Claim is Barred
First:
Third:
Are the parties in the new suit identical to the parties who litigated previously?
Second:
Civ Pro
Effect of Issue Preclusion
New suit has been filed
OR to
prove part
of it
May be used to
defeat
subsequent claim,
Analyze which party is trying to use preclusion, and for what purpose?
At least 1 of the parties has litigated all or some part of the claim previously
Identity of parties (or privity) is REQUIRED for CP
NOT REQUIRED FOR IP
BUT... PARTY
AGAINST WHOM IP IS BEING USED
MUST HAVE
(IF NOT, THEN
NO PRECLUSIVE EFFECT
)
(B) HAD FULL AND FAIR OPPTY,. & INCENTIVE TO LITIGATE
(A) BEEN A PARTY TO 1ST ACTION
CP: WAS THIS NEW CLAIM ACTUALLY BROUGHT, OR IS IT ONE THAT COULD HAVE & SHOULD HAVE BEEN BROUGHT?
FOR IP:
WAS THIS ISSUE ACTUALLY DETERMINED,
AND NECESSARY TO THE PRIOR JUDGMENT
Patent/IP
Bankruptcy
Admiralty
All suits for $75,000 or less arising under state law
Suits between Citizens of Same State
Federal Employment Statutes (Title VII, ADA, ADEA, FMLA)
Suits for >$75,000 btwn. citizens of diff. states
"the power of a court to hear a particular case"
Jurisdiction is limited, by its very nature

2 overarching concepts:
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
—to all Cases affecting Ambassadors, other public Ministers and Consuls;
—to all Cases of admiralty and maritime Jurisdiction;
—to Controversies to which the United States shall be a Party;
—to Controversies between two or more States;
—between a State and Citizens of another State;
—between Citizens of different States;
—between Citizens of the same State claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Original Jurisdiction
Exclusive Jurisdiction
vs.
Appellate Jurisdiction
Cases of this type can ONLY start here
A case can only be reviewed here on appeal
A type of case can start here
Counsel’s level of comfort
If not listed in Article III,
Why does this matter, strategically?
Different Jury pool
Political ties of state court judges (home-cooking)
Competency / sophistication of judges
Caseload/docket congestion
Administration of rules, discovery
1 judge presiding, vs. rotation
Fed. Ct: more thoroughly reasoned decisions, much more recorded opinion history
Motions decided on briefs vs. oral arguments
Rule 16 & 26 procedures
Convenience
(e-filing options)
$$$$
P may file suit in STATE COURT
Which means what?
then cannot be brought in Federal Court
Determining whether a claim “arises under” the Constituion and laws of the United States” must be based
solely
on “plaintiff’s statement of his own cause of action”
Louisville & Nashville RR v. Mottley 211 U.S. 149 (1908)
Erasmus & Anne Mottley
Injured in RR accident
as settlement, in 1871 given lifetime passes
1906: Congress outlaws free RR passes (concerns re: bribery)
RR refuses to honor the passes, based on this law
Ps bring action for Breach of Contract
P’s 2 arguments:
1. The Act does not really apply to their passes, their circumstances
2. If it does, then they have been deprived of property w/o due process (5th Am.)
Who raised the SMJ question?
Supreme. Ct.:
Federal court did not have jurisdiction to hear the case.
ORIGINAL CAUSE OF ACTION ITSELF MUST ARISE UNDER U.S. CONST.
Alleging an anticipated defense that D may file is NOT ENOUGH!
(“make the Def. honor the K”)
specific performance
Remedy sought:
Wait, What?
28 U.S.C. §1332
Subseq. history:
case re-filed in state court
Eventually Appealed to U.S. Supreme Court again!
(a) The district courts shall have original jurisdiction of all civil actions where:
PROCEDURAL ISSUE
Hawkins v. Masters Farms, Inc
. (D. Kans. 2003)
December 8, 2000
Ps= Mary Ann Hawkins,
Rachel Baldwin admin/exec. of estate of James Patrick Creal
... [except those...] lawfully admitted for permanent residence in the United States and... domiciled in the same State.
(i.e., legal aliens)
Diversity of citizenship; amount in controversy; costs
Article III
Federal District Courts
14 Circuit Courts of Appeals
28 U.S.C. §1332
"Diversity"
28 U.S.C §1331: "arising under" constitution or federal laws
(2)
citizens of a State and
citizens or subjects of a foreign state
(1)
citizens of different States
;
and

is between

the matter in controversy
exceeds the sum or value of $75,000
, exclusive of interest and costs,
Wait, what does the court know about the citizenship of the parties?
Therefore citizenship of Mr. Creal is determinative
per §1332(c)(2): the legal representative of the estate of a decedent shall be deemed to be a
citizen only of the same State as the decedent
,
Troy, KS
FACTUAL
ATTACK/CHALLENGE
VS.
FACIAL
ATTACK/CHALLENGE
Each P
MUST BE CITIZEN OF DIFF STATE FROM
EACH
OF THE
D
’S
Alleges: Lack of “complete diversity”
D files
motion to dismiss
for lack of SMJ
Rule 12(b)(1)
Under what rule?
Wait, What?
--And how does it know?
Here, deposition testimony
(BUT still typically early in the case)
Court has “wide discretion to allow affidavits, documents, conduct evidentiary hearings”
Questions whether
actual facts
support S.M.J.
(regardless of what is alleged):
Tests the sufficiency of the
allegations in the complaint
, (accepting them as true)
MATERIALS CONSIDERED WHEN CHALLENGING
S.M.J.
P
2
P
1
D
1
D
2
2. intent to remain there
+
For purposes of §1332,
A person is a “
citizen
” of state in which he or she is...
1. Physical presence in the state

domiciled

(only!)
*THE TEST FOR P.J.
(I.E., WHERE A PERSON IS SUBJECT TO BEING SUED)
IS DIFFERENT!
Never actually looked for house elsewhere
Death certificate: lists KS
1/2000: began staying over with Elizabeth & her kids
9/2000: new house
2000:
marriage!
Joint checking acct.
Stops showering at his mom’s place in MO
3/2000: New apt. on 1st st.,
He brings clothing, furniture
E paid rent, he bought groceries, split utilities
11/1999-title & tag for van
Estate opened here
5/2000: life insurance application
4/2000: renewal of drivers’ license
Where he grew up
Lived w/ Mom (post-divorce)
Received mail & pay stubs
3/2000-auto loan & new title
12/1999-auto insurance
AND used her address for:
C
R
E
A
L
NO SMJ UNDER §1332
NO DIVERSITY
Corp. v. Friend
Redner v. Sanders
(S.D.N.Y. 2000)
Etes-il une
citizen
Americain ou Francais?
Therefore dismissal for lack of SMJ
No actual claim that he lives in CA
No details re: his life in France
“considers Ca. as his domicile”
“has not given up on returning”
Law license
Law office (visits 4x per year)
C'est la vie?
WHERE
CAN
HE SUE THESE D’S?
Or, he could start living in another state
What about corporations?
How is "citizenship" determined?
Class action lawsuit, alleging violation of California state wage & hour regulations
What is Hertz' principal place of business?
Initially brought in Cal. state court
§1332(c): For the purposes of this section and section 1441 of this title [removal]—

(1) a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated
and
of the State or foreign state where it has its principal place of business...
Rationale:
Rejected! (b/c too complex & impractical)
Ps oppose removal, arguing that Hertz IS ALSO a "citizen" of California
Plaintiffs = Citizens of Ca.
DIVERSITY, § 1332
Alleged basis:
***Removal to Fed Ct. permitted IF court has SMJ over PLAINTIFF'S CLAIMS
Hertz seeks to REMOVE case to Cal. Fed. Ct.
Wait, What?
“center of overall direction, control, and coordination”
“typically” found at its headquarters
a/k/a the corporation’s “nerve center”
= “the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities”
3. Legislative history: a numerical test was proposed (any state that accounted for 1/2 corp.'s gross income)
(Complex tests waste time, foster “gamesmanship”)
2. Administrative simplicity
1. Language of §1331: “principal place” of business
ALTERNATIVES to "nerve center"?
Meanwhile, a HQ relo is pretty obvious
Most facilities?
Where it has most property/real estate?
Where corp. has greatest number of employees?
Gross revenue or net profit?
Where corp. does most of its business?
Also not easy to determine (for outsiders)
All of these are subject to change
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute,
in any civil action of which the district courts have original jurisdiction
,
(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts
shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs
against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules
, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.
(1) the claim raises a
novel or complex issue of State law
,
Plant v. Blazer Financial Servs. (p. 798)
In re Ameriquest Mortgage (N.D. Ill. 2007)
Szendrey-Ramos v. First Bancorp (D.P.R. 2007)
4.
Counterclaims
:

1. Allegations of Complaint control
St. Paul Mercury Indemnity Co. v. Red Cab Co
Dismissal based on insufficient amount in controversy only if it “appear[s] to a
legal certainty
that the claim is really for less...”
ISSUES RE: THE AMOUNT IN CONTROVERSY
(pp. 217-221)
EXAMPLES (Work through on your own first):
So-Chew-Me Pet Toys, Inc., a N.C. corporation sues Wal-Mart Stores, Inc., an Arkansas corporation, for breach of supply contract for dog toys, claiming $100K in damages.

In which of the following scenarios will the court have SMJ over the C/C?
3. May a plaintiff aggregate claims (to add up to $75K?
2. When P seeks non-monetary relief (e.g., injunction)?
But court can scrutinize this (i.e., a very thin punitive damages claim will not do)
Salmi v. D.T. Management, Inc.
(but that is b/c of supplemental J, §1367)
Court has jurisdiction over 2nd IF “same case or controversy”
c. P1 has claim >$75K, P2 does not?
Yes,
unless their claims are “separate & distinct” from one another
b. 2 Ps, same D:
Yes (even if unrelated)
a. 1 P, multiple claims vs. same D
Cost of complying w/ injunction?
Value to the party seeking federal jurisdiction? (might be D)
Determine value to P?
Courts have applied many different tests:
BUT HOW?
Court must put a
value
on the
relief
sought.
So
counterclaim itself
would need to be
for >$75K
If
permissive
(not S.T.O.), then must have its own
independent basis for SMJ
If
compulsory
,
Permissive (so must have its own SMJ)
Permissive,
but has independent basis for S.M.J.
(a) W-M counterclaims for breach of same contract, seeking $10K.

YES
(Compulsory)
(c) W-M counterclaims for breach of different contract, 3 months later, involving supply of cat toys, seeking 15K?
NO.
(b) same as (a), but suppose Wal-Mart counter-claims for $30K?
Does that defeat S.M.J. on original claim?
TAKEAWAY CARDS:
that means it must be
S.T.O.
,
so SMJ on basis of P's claim
YES!
(d) same as (c), but Wal-Mart alleges $77K in damages?
No set-off between claims & counterclaims.
NO
Nasty Boys
Love Will Never Do
Let's Wait a While
Control
3. Word association: what (or whom) do you think of when you read the following words:
2. What is the test for determining a
corporation's
citizenship under §1332?
1. What is the test for determining a
person's
citizenship under §1332?
(a) Such supplemental jurisdiction
shall include
claims that involve the
joinder or intervention of additional parties.
the district courts shall have
supplemental jurisdiction
over all other claims that are

so related to claims in the action within such original jurisdiction that they form part of the same case or controversy

under Article III of the United States Constitution.
Civ Pro
EXAMMY
CARD!!
Civ Pro
Let's sum it all up...
with a little help from a few friends of ours...
in a song...
United Mine Workers v. Gibbs
For supplemental jurisdiction to apply, "[t]he state and federal claims must derive from a 'common nucleus of operative fact.'"
SUPPLEMENTAL J AND JOINDER
How could a plaintiff take advantage of §1367? Plead only diverse claims, knowing that they have non-diverse claims that they can add in later when some D impleads the other alleged wrongdoers.
(4) in
exceptional circumstances
, there are other
compelling reasons for declining
jurisdiction
(3) the district court
has dismissed all claims over which it has original jurisdiction
, or
§1367(c): The district courts
may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if—
(2) the claim
substantially predominates
over the claim or claims over which the district court has original jurisdiction,
Procedural issue:
Key: relief sought under TILA
Failure to give required disclosures extends time within which borrower can rescind the loan contract
Plaintiff = Barbara Skanes
Purchase loan
Appraisal by:
Deed of trust /
Mortgage
Defendant Homestead Appraisal of Rockford
Douglas Trevino (Appraiser)
Claims at issue:
Count I: Violations of federal Truth in Lending Act
Counts II and III: State law claims for fraud
P claims appraisal value was inflated, excessive
*Also requests a Declaratory Judgment re: obligations toward each defendant following rescission, "taking into account... the inflated appraised value.”
FEDERAL Q
(§1331)
}
Supp. J?
Moves to dismiss for lack of SMJ
§1367(c)?
Only possibility argued: (1) novel or complex issue of state law—whether MMBLSLA applies to appraisers
“Accordingly, we choose to exercise our discretion in favor of retaining jurisdiction”
YES
“so related to claims in the action within such original jurisdiction that they form part of the same case or controversy”
“loose factual connection is enough... so long as those facts are both common and operative”
WHAT FACTS WOULD PROVE EACH CLAIM?
Can the state claims be resolved or dismissed without affecting the federal claims?
If we dismiss state law claims, “we may be unable to grant the full measure of relief" ...
Fed and state claims “explicitly connected”
28 U.S.C. §1447
Motion to Remand (back to state court)
Procedure for Removal:
28 U.S.C. §1441
28 U.S.C. §1446
But how much should she pay back? If she proves inflation of appraisal?
Rescission =

unwinding the K
BUT:
COURT DECLINES TO EXERCISE Supp. J per §1367(c)
Violation of Title VII (re: discrimination and retaliation)
In house counsel for Bank
Informed of possible ethical improprieties
Reports to bank officials
"You're fired!"
Sues, alleging claims for:
Analysis?
Rationale?
YES
Rule 12(b)(1) (“lack of SMJ)
tortious interference with K
defamation
violation of the P.R. Constitution
wrongful discharge
}
SUPP. J.?
Federal Q
PROCEDURAL ISSUE:
Bank moves to dismiss:
On what grounds?
Rule 12(b)(6) (“on the merits”)
RESULT:
Can be refiled in PR state court
w/o prejudice
State claims dismissed
Fed Ct. proceeds with T7 claims
**Issue has not been addressed by Puerto Rican state courts
Puerto Rico’s Code of Professional Ethics defines atty. obligations differently from ABA Model Code of Prof. Resp. (of which most states have adopted some form)
2. They also present “
novel or complex issues of state law

AND are greater in scope than
that of the fed claims
State law claims “far outnumber”
“two lonesome claims under Title VII”
1. State law claims
substantially predominate
(a) Generally.--Except as otherwise expressly provided by Act of Congress,
any civil action

brought in a State court

of which the district courts of the United States have original jurisdiction
, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
* * *
Within 30 days of service of complaint or other pleading giving notice of the claim with S.M.J.
*** Same basis as determining whether Plaintiff could file in Fed Court
NOT based on defenses, or even counterclaims by D
Only look at allegations of complaint! (
Mottley
)
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title
may not be removed
if any of the parties in interest properly joined and served
as

defendants

is a citizen of
the State in which such action is brought
.
If based on §1332, Notice of Removal must be filed within 1 year of filing of the action
All D’s must consent
Watch out!
§ 6
R
E
S
C
I
S
S
I
O
N
$200K?
X
X
"We got this..."
X
What if plaintiff wants to contest removal to federal court? (i.e., to argue that there is no SMJ?)
Fed Court can remand all or part to State Court
Within 30 days of notice of removal
Lewis (Ky.)
Caterpillar (
Del.
AND Ill.)
(Intervenor)
Liberty Mutual
(Mass.)
Defendants (Cit.)
Plaintiff (Cit.)
Whayne Supply (Ky.)
Settlement
Dismissal coming
1. “Satisfaction,” by the Rolling Stones;
4. “Red Solo Cup,” by Toby Keith.
3. “Intuition,” by Jewel
5. “Ride Wit Me,”
by Nelly
6. “Blurred Lines,” by Robin Thicke
7. “Son of a Preacher Man,” by Etta James
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law
; nor shall private property be taken for public use, without just compensation.
AMENDMENT V
AMENDMENT XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any state

deprive any person of life, liberty, or property, without due process of law
; nor deny to any person within its jurisdiction the equal protection of the laws.
(1868)
Entering a judgment
How might a
State
deprive a person of property
through the operation of its civil courts
?
Allowing assets (i.e., real & personal property) to be seized to satisfy a judgment
Allowing a party to enforce or collect judgment
OK, SO
WHAT DOES
"DUE PROCESS" REQUIRE?
Pennoyer v. Neff
CORRECTION!!!
Must have both!
If there is not a state that meets both criteria, court must look to last place party lived that did both

The court in Hawkins was trying to determine Creal's
subjective intent
, by looking at all the facts
So, if you have come to CSL from another state, but do not intend to remain in NC after graduating, then you would likely be considered a citizen of your previous home state
Shout out to Jessica Newman! (and Prof. Glannon)
WE THEREFORE FOCUS ON:
How much connection, and of what kind or nature, must a defendant have with a particular state, in order to be subject to being sued in its courts?
U.S. District Court for the Western District of N.C.
Mecklenburg County Superior Court
(i.e., State Court)
§1441, §1446
DEF.
FILES NOTICE OF REMOVAL
PL.
may contest removal by filing a MOTION TO REMAND
(all Ds must consent)
If
SMJ is based on §1332 (diversity),
if
any Def. is a NC Citizen,
THEN CASE CANNOT BE REMOVED!

§1441(b)(2)
§1447
Thus, we will be talking now about State courts
(but PJ also applies to federal courts within a given State)
**WE FOCUSED ON THE
SUBJECT MATTER
OF THE LAWSUIT
(I.E., THE TYPE OF CLAIMS ASSERTED)
SMJ was about whether a plaintiff's case may be filed in federal court
(or

removed to fed. ct. if initially filed in state court)
CHANGING OUR FOCUS
HOW IS PERSONAL JURISDICTION DIFFERENT FROM SMJ?
P.J. IS ABOUT THE POWER OF COURTS WITHIN A GIVEN STATE OVER A PARTICULAR DEFENDANT
OR
CITIZENSHIP OF THE PARTIES
(IF >$75K IS AT ISSUE)
In personam
jurisdiction
The "
Shoe
" Drops
CLASS EVALUATIONS SEPARATE, COMING SOON
BASIC PREMISE:
Each State has territorial boundaries.
("res" / "rem" = Latin for "thing")
Jurisdiction over property
In rem
jurisdiction
Jurisdiction over a person
2. A State's power cannot reach beyond those boundaries
1. Each has exclusive jurisdiction and sovereignty over persons and property within those boundaries
THEREFORE:
1st (primary) Lawsuit:
Mitchell (atty.) v. Neff (client)
Inc.
HQ
??
No communications after last class on 12/11
The exercise of that privilege may give rise to obligations, and, so far as those activities
arise out of or are connected with the activities within the state
, a procedure which requires the corporation to respond to a
suit brought to enforce them
can, in most instances, hardly be said to be undue."
"Conversely... the
casual presence
of the corporate agent or even his conduct of
single or isolated items of activities in a state
in the corporation's behalf are
not enough
to subject it to suit on causes of action
unconnected with the activities there

Corporate "presence" is easily established when its activities in the state are “
continuous and systematic

and


give rise to the liabilities sued on

Now, all that due process requires is “certain
minimum contacts
with [the State] such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice

Focusing on corporate “presence” within a state is "begging the question."
APPLYING THE NEW APPROACH:
Thus it was "reasonable & just" for Washington to exercise jurisdiction
**Alleged obligation sued upon arose out of these very activities
Int. Shoe could sue in Washington to collect sums owed by customers
Large volume of $ale$ thru these employees
Corp. activities were "systematic and continuous" over 3 years
"...to the extent a corporation exercises the privileges of
conducting activities within a state
, it enjoys the benefits and protection of the laws of that state.
Specific Jurisdiction
&
General Jurisdiction
Level of corporate activities in state
"Continuous & Systematic"
Claims unrelated
Claims arise out of
Degree of relatedness between
lawsuit and the corp.'s in-state activities
Isolated & Irregular
State of Inc.
Specific J.
General J.
NO PJ!
Residence?
Corp. HQ
PPB
(BOTH GEN. & SPEC.)
0
THE CASES ARE ABOUT WHERE TO DRAW THESE LINES ON THE GRAPH!
Domicile
CONSENT
"single or occasional acts"
"Continuous corporate operations so substantial and of such a nature as to justify suit" on any claims
None
(or where to draw new ones!)
a/k/a "Gotcha!"
If a party is served with process while in the state, due process is satisfied & court will have PJ
(Claims for money owed)
Neff (non-resident)
Served by publication
("constructive notice")
*Statute only allows this when NR owns property in state
ON this theory,
PJ ARISES OUT OF D's PRESENCE
or
CONSENT
(no need to analyze relatededness to in state activities)
"Continuous corporate operations so substantial and of such a nature as to justify suit" on
any
claims
Limited activity in a particular state, but claims in question ARISE OUT OF those very activities
World-Wide Volkswagen v. Woodson
(manufacturer)
of America, Inc.
(importer)
(U.S. 1980)
STILL ALIVE & KICKING, EVEN AFTER
INT'l SHOE
Burnham v. Superior Court
(U.S. 1990)
Dennis v. Francine
Never served her
Francine v. Dennis
Has him served when he comes to see kids
Insufficient contact with the forum
to be sued for claims unrelated to his business activities there
His argument?
Moves to dismiss for lack of PJ
X
"GOTCHA!"
will still
GETCHA!
All justices say he loses; they disagree over why
Ins. Co. sends P an offer of coverage
McGee v. Int'l Life Ins. Co.
(U.S. 1957)
Sufficient contacts for suit re: that policy?
YES
Pays premiums from home in Calif.
P accepts
Hanson v. Denckla
(U.S. 1958)
Bank
(Trustee of her Trust)
NO ACTS PERFORMED
Unilateral activity of other party cannot satisfy the requirement of contact with the forum state
"MINIM[UM] CONTACTS"
with FL.?
NO OFFICES
"... it is essential in each case that there be some act by which the defendant
purposefully avails itself
of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws”
NO SOLICITATION OF BIZ
v.
BROWN
(2011)
3 European subsidiaries that made tires for European & Asian markets
One of the alleged causes:
Goodyear USA (Parent corp.)
Lawsuit in NC state court vs.
No direct ties to NC
(no adv, distrib, or mfctr.)
BUT some tires they made were sold in NC by other affiliates of parent corp.
PJ?
N.C.S.Ct. mixed up Gen J & Spec J
What was wrong with that?
Why is "stream of commerce" irrelevant?
Claims do not
arise out of
the incidental sales of foreign-made tires that may have happened in NC
NC Court finds PJ b/c tires sold into "stream of commerce"
GEN J or no PJ
"...affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum state"
Perkins v. Benguet Consol. Mining Co.
Helicopteros Nacionale de Columbia, SA v. Hall
(Plants, biz in NC)
(uncontested)
(Ohio)
WWVW
Foreseeability
that product would be
used
in a state is not enough
TO FIND THE REQUISITE "PURPOSEFUL AVAILMENT":
If a corp. “
purposefully avails itself
of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation...” (
Hanson
)
Foreseeability that might matter is whether “D’s conduct and connection with the forum State are such that he should
reasonably anticipate being haled into court there

Oh, and Reasonableness factors...
Mrs. Robinson
(dealer)
Regional distributor - (NY, NJ, CT
)
X
Is it OK for OK to have PJ over WorldWide & Seaway?
P's argument:
Since they are "mobile," it is foreseeable that cars sold by Ds might make their way to OK
Def. has to have delivered its products into the “
stream of commerce
with the expectation that they will be purchased
by consumers in the forum state

Last prof. office hours will be
Tuesday, 12/10
10:00 -12:00
(special session)
2. “Fascination,” by The Human League;
8. “Somebody that I Used to Know,” by Gotye
9. “Play That Funky Music,” by Wild Cherry.
10. "Started from the Bottom," by Drake
2 more things
(the easier stuff)
Carnival Cruise Lines, Inc. v. Shute
(U.S. 1991)
TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET
* * * *
3. (a) The acceptance of this ticket by the person or persons named hereon as passengers shall be deemed to be an acceptance and agreement by each of them of all of the terms and conditions of this Passage Contract Ticket."
* * * *
8.
It is agreed by and between the passenger and the Carrier
that all disputes and matters whatsoever arising under, in connection with or incident to this Contract
shall be litigated, if at all, in and before a Court located in the State of Florida, U.S.A. to the exclusion of the Courts of any other state or country
.
Was forum selection clause enforceable?
PPB!
(?)
$$$ Savings passed on to customers
Minimizes confusion
D's interest in limiting potential # of places it can be sued
(
essentially conceded
)
Yes
Ps on notice?
RATIONALE:
Florida was legit!
Eulala & Russel
Residents of Washington State
California to Mexico (& back)
Trip:
www.effectstestforpj.com
of Maryland
v. Carefirst Pregnancy Centers, Inc.
M
inimum
C
ontacts
T
raditional
N
otions of
F
air
P
lay &
S
ubstantial
J
ustice
M.C.
T
oo
N
ice
F
or tha
P
rice (
S
hoe
J
am!)
J. McIntyre Machinery, Ltd. v. Nicastro
For the purpose of Spec J. analysis:
When does D's injection of
products or goods
into the
"stream of commerce"
indicate
"
purposeful availment
" of the
privilege of doing biz in a state?
The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.”
“It is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment”
“The principal inquiry... is whether the defendant’s activities manifest
an intention to submit to the power of a sovereign [state]
But easily decided on the basis of insufficient contacts
PJ in NJ?
PJ in NJ ?
NOT TODAY!
What's all the fuss?
(Plaintiff's)
(Whose burden is it to show MC?
“A single isolated sale” usually is NOT enough
Not a good case for rewriting rules...
(Even if we
do
need to revisit them)
Plurality opinion is too broad,
U.S. Independent
Distributor
NO WAY!
PJ in NJ?
WAY!
Because D. targeted the U.S.A.!
NO,
PJ IS STATE-SPECIFIC
M
inimum
C
ontacts
T
raditional
N
otions of
F
air
P
lay &
S
ubstantial
J
ustice
M.C.
T
oo
N
ice
F
or tha
P
rice (
S
hoe
J
am!)
the bottom line: STILL DETERMINE MC/TNFPSJ case by case. Some kind of targeting (PA), but how much?
NGDMF, JML
Define key terms: (genuine, material)
After discovery
Using materials from discovery

M'S Resp./Burden of Prod
effect of ultimate Burden of Proof

Shift to N-M
No set of facts
LMF to N-M

If motion granted, then JML for movant
If motion denied, then TRIAL
D's Aff. def. re: rent
D has BoP at trial
Movant's ev.?
Burden met?

Non-movant's ev.
Its ev. to show GDMF?
Genuine?
Material?
(burden met?)

THEREFORE...
THEN...
P's claim:
P has BoP at trial
Must have ev. that could prove all 3 elements (Md. Law)
K? On what basis?
Breach? On what basis?
Damages? On what basis?
(
here's the fight
)
What does M show re: N-M ev?
Met burden to show NGDMF?

Burden shifts to N-M-
what's its ev. to show GDMF?
Genuine?
Material?
THEREFORE...
I. OUTLINE YOUR ANSWER BEFORE WRITING A RESPONSE!
II. CROSS-CHECK:
IF IT IS IN YOUR RULE DISCUSSION (PART A), IT SHOULD BE
APPLIED
!
AND... IF THERE IS A SPECIFIC RULE YOU APPLY, MAKE SURE YOU MENTIONED IT IN YOUR RULE BLOCK!
EXAM FEEDBACK
Still room for more...
Definite improvement
Your rule block is your road map!
-Don't simply repeat the evidence as presented in the fact pattern!
-When applying (Part B) identify the topics you need to address,
see each one through (to a conclusion)
before beginning the next topic
Burger King Corp.

v.
Rudzewicz
HQ
Portion of Opinion NOT included in our casebook's excerpt:
(would be on p. 114)
... a "contract" is an "intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction."
Lower courts divided re: whether and to what extent a contract can constitute a "contact" for purposes of due process analysis. If the question is whether
an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum
,
we believe the answer clearly is that it cannot.
. .
It is these factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.
Suit filed
QP =
Whether FL court has jurisdiction over Mr. R.
The contract (itself) had a
substantial connection
with FL
"... carefully structured
20-year relationship that envisioned continuing and wide-reaching contacts
with Burger King in Florida.
Quality & nature of contacts were NOT
"random," "fortuitous," or "attenuated."
Voluntary acceptance of the long-term and exacting
regulation of his business
from Burger King's
Miami headquarters
"
Supreme Court says "Yes"

But why?
28 U.S.C. §1404(a)
28 U.S.C. §1391
28 U.S.C. §1406
Federal Law
Much more complex.

Involves "conflict of laws" analysis
"...the
geographic specification of the proper court
or courts for the litigation of a civil action
that is within the subject-matter jurisdiction of the district courts..."
28 U.S.C. 1390(a)
Defined (for federal purposes) in:
Separate question from PJ... so must be separately evaluated..
Also determines which district within a state
( if > 1 )
Determining which state, not as a matter of power,
but of relationship to the parties or events.
Quick reminder:
Rule 12 (b)
Rule 12. Defenses and Objections: When and How Presented...
* * *
(b)
How to Present Defenses
.
Every defense to a claim for relief in any pleading

must be asserted in the responsive pleading if one is required
.
But a party
may assert the following defenses by motion
:
(1) lack of subject-matter jurisdiction
;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
Only Question for court
:
whether the law applies to the situation,
i.e., provides a potential remedy?
Court must assume the FACTS as pled are TRUE
On a Rule 12(b)(6) Motion:
(parties get to fight about that later)
Rule 12(h)(2)
(A) in any pleading...;
(B) by a motion under Rule 12(c); or
(C) at trial.
Rule 12(h)(1): WAIVING AND PRESERVING CERTAIN DEFENSES
Rule 12(g) JOINING MOTIONS.

(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
.
12(b)(2) thru (b)(5) may be WAIVED (LOST) by:
(A) omitting from a motion (per Rule 12(g)(2)); or
(B) failing to either:
(i) make it by motion.... or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
}
Any time!
Rule 12(h)(3)
(but may well overlap)
Forum Non Convienens
(a/k/a Motion to Transfer)
Motion for Change of Venue
Motion to Dismiss
or
Transfer

for improper venue
(1) a judicial district in which
any defendant resides
,
if
all defendants are residents of the State in which the district is located;
if a
defendant =
(d) Residency of Corporations in States With Multiple Districts.
(b) Venue in General.— A civil action may be brought in—
(3) if there is no district in which an action may otherwise be brought as provided in this section,
any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
the district within which it has the most significant contacts.
if there is no such district...
(3) a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.
(c) Residency— For all venue purposes, means the
federal judicial district:
where domiciled
;
(1) for a
natural person
=
(2) for a corporate (or other business entity, such as partnership, LLC, etc.)...
if a
plaintiff =

Resident of any jud. dist. in which it is
subject to
PJ
with respect to the civil action in question
only
in the one in which it maintains its
principal place of business
; and
???
...[A] corporation shall be deemed to reside in
any district
in that State
within which its contacts would be sufficient
to subject it to personal jurisdiction
if that district were a separate State
, and,
(a) The district court of a district in which is filed a case laying venue in the
wrong division or district

(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.
(a) For the
convenience of parties and witnesses
, in the interest of justice, a district court may
transfer
any civil action to
to
any district or division to which all parties have consented
.
OR
any other district or division where it might have been brought

USE WHEN
VENUE IS PROPER
(PER §1391) BUT WITNESSES, EVIDENCE, OR PARTIES ARE LOCATED IN A DIFFERENT DISTRICT THAT WOULD BE MORE EFFICIENT, ETC.)
(i.e., where venue would
also
be proper)
if it be in the interest of justice, transfer
such case
OR

shall dismiss,

to
any district or division in which it could have been brought
.
"Common law" doctrine
Dismissal (usually without prejudice to re-filing in proper venue)
or
Permits transfer to proper venue
Now applies primarily in state courts
1. Suit filed in
Piper Aircraft v. Reyno
2. Removed to Fed Ct.
3. Transferred
to M.D. Pa.
(§1404(a))
state court:
4. Motion to Dismiss for
forum non conveniens
Plane (remains)
Pilot's estate add'l Defs.
ALL CRUCIAL FOR DEFENSE
(Diversity, §1332)
Basis for SMJ?
Public & "private" factors under
Gulf Oil Corp. v. Gilbert
Decedents were all Scottish, also
"effects test” of specific jurisdiction requires
plaintiff to establish that:
(1) the defendant committed an
intentional tort
;
(2) the plaintiff felt the brunt of the harm in the forum, such that the forum can be said to be the focal point of the harm; and
(3) the defendant expressly aimed his tortious conduct at the forum, such that the forum can be said to be the focal point of the tortious activity.
“[a] State may, consistent with due process, exercise judicial power over a person outside of the State when that person
(1) directs electronic activity into the State,
(2) with the manifested intent of engaging in business or other interactions within the State, and
(3) that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts.”
Rules for finding
PJ
based on operation of website out-of-state
(Illinois)
Passive
Semi-interactive
Interactive

Thru website, D enters contracts with residents of another state
that involve the knowing & repeated transmission of computer files
Merely informational
PJ
Case by Case:
level of activity
commercial nature of the info exchanged
NO PJ
Low volume of transactions,
but some exchange of info with D's computer
"...placing information on the Internet is not sufficient by itself to subject.. [a] person to personal jurisdiction in each State in which the information is accessed.”
Website hosted on server in Md.
(
de minimis
)
Very small amt. of donations from Md.,
(most thru mail)
D site focused on local care in Chicago
Here:
"purposeful
availment"
In addition
to Due Process considerations (MC, etc.)
there must be a
state statute
authorizing exercise of PJ over an out of state party.
OR may have been interpreted so as to extend that far
State statute will expressly extend as far as the Constitution permits
Usually not an issue.
Additional factors that may kick in, even if court finds sufficient MC
Gibbons v. Brown
"A defendant who is engaged in substantial and not isolated activity within this state... is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity."
Mrs. Brown later sues
Ms. Gibbons
in FL
Ms. Gibbons
sues
Mr. Brown in FL
(TX)
(FL)
PJ??
NO!
(not "was" or "has")
See
WorldWide VW, Burger King
May tip the scales one way or the other in a close case.
(This is where TNFPSJ kicks in.)
1. Legally
2. Factually
Do pleadings contain any obvious legal
bar
to recovery?
1. Identify mere conclusory statements (legal or factual)-and

DO NOT TREAT THEM AS TRUE
[and]
Is there a valid LEGAL BASIS FOR the claim(s) asserted?

Does Complaint give notice of the legal basis for the claim?
Dismissal of complaint?
If insufficient to state a claim, what is the proper remedy?
Allow pleader to amend?
Dismissal of invalid claim or claims only
The Twiqbal
TwoStep!
2. Examine the remaining (i.e., "well-pled") facts: if

treated as true

(for purposes of the 12(b)(6) motion, only), are they
** Would have to know or be given the applicable law
enough to establish the elements of the legal claim?
Civ Pro
EXAMMY
CARD!!
Motion to Dismiss for Lack of Personal Jurisdiction
First:
Third:
Any problems with Rule 8(a)
(1) - pleading jurisdiction
or
(3) - demand for relief?
(If either is missing, then complaint does
not
satisfy Rule 8
Substantive Area-Specific Rules
The Effects Test
Intentional Torts
Internet advertisements
Products Liability ("Stream of Commerce")
Contracts
Long Arm
2 ASPECTS
Correction:
legal conclusions only
Welcome to the First Semesterial....
And the winners are...
P-J
AMMY AWARDS!!
brought to you by...
Section 6
Section 5
Sterling Dunn
Savanah Marr
Alexandria Kirby
Emily Deeds
Jack Densmore
Lauren Ehlke
LaFarran Durman
Giorgia Turpen
Terrance Parson
Virgil Chery
Abraham Steele-Jones
Kristal Matthews
Sara-Beth Testerman & Jennifer Blakeney
Lauren Presnell
Charles Willis
Kayla Johnson
Tina Williams
Shereka Banks
Kelvin Smith
Philip Logarides
Stephanie Mattox
Emily Ratliff
Iris DeWitt
Raquel Fernandez
Mirsada Haticic,
"Un-estoppable"
(Tie!)
“EsqChoir”
Mike Pascale
Sara Wyatt
Ciara Weaver
Emily Calvin
Brittany Jackson
Briella Nelson
Ajia Burris
Juan Certin
Allen Ward
Isha Faulkner
THE QUESTION PRESENTED:
In a diversity case (in federal court, between citizens of different states),
what law applies
?
What are the possible sources of law that might apply?
What about rules of civil procedure?
Why does it matter?
P's contributory negligence!
(bar to recovery)
Comparative negligence: P's own negl. may reduce recovery, but not bar it
Where else would venue be proper?
Why is venue proper?
Side note/review:
Is Def. Sprouse subject to PJ in NC?
On what basis?
Substantive law (of torts, contracts, property, etc.)

Procedural rules:
(FRCP, 28 U.S.C.,
Local Rules)
"E-Neff Said"
M
inimum
C
ontacts
T
raditional
N
otions of
F
air
P
lay &
S
ubstantial
J
ustice
M.C.
T
oo
N
ice
F
or tha
P
rice (
S
hoe
J
am!)
Reasonableness Factors
Look for Easy cases:
Transient
Consent
General:
Domicile
Incorp.
PPB
Full transcript