CIVIL PROCEDURE OUTLINE- Foster

Why this matters?

 Plaintiffs cannot bring a suit wherever they wish but there is a 14 th amendment
right to no deprivation of life, liberty, or property w.o due process.
 Full Faith and Credit
o Judgement from one state will be understood by another state

CHOOSING THE PROPER COURT

Jurisdiction
(1) Personal
(2) Subject-matter
(3) Venue
Having all 3 = Proper litigation

Personal Jurisdiction
In Personam: Jurisdiction over the person
In rem: power to adjudicate w/ respect to the property Who owns the property
Quasi in rem: Judgment over the property. Nothing to do w/ ownership
What type of connection is needed?
 Before you needed to have the cause of the suit with you. (Pennoyer)
 Carrying the debt with the person was enough (Balk v Harris)
Traditional methods of getting jurisdiction
 A persons presence, domicile, consent, waiver, or being served in a state is a
way of getting personal jurisdiction
Long Arm statutes
 States way of reaching out to the non-residents . Only defines the outer
boundaries of permissible jurisdictional power.
 We look at the statute first to see if it can exercise authorization. If it is, then we
worry about Due Process clauses and constitutionality through Minimum
contacts.
o Requires that the state only exercise jurisdiction over the person if the
person has established minimum contacts w.o violating the notions of
fair play or substantial justice. (aka minimum contacts test below)
 If you cannot get jurisdiction under long arm statute you cannot get
jurisdiction
Not every traditional long arm provision automatically give the person
jurisdiction. Could be constitutional in some cases, not in others
Minimum Contacts Test
 A person must have certain minimum contacts with the state that the
maintenance of the law suit does not offend traditional notions of fair play
and substantial justice
 
 Specific Jurisdiction:
o Contacts that you are arguing arose out of the dispute.
o Only subject to jurisdiction for claims arising out of those “minimum
contacts”
 Ex: International Shoe had contacts through shoe business and not
paying taxes, they were sued for avoiding taxes
 General Jurisdiction
o Contacts there are general, they don’t arise out of that dispute.
o Creates the ability to be sued for any claim, even unrelated to in state
activities.

 Systematic AND continuous contacts w/ forum state

o As long as there are contacts or activities that connect the person with the
forum state.
o Depends on the quality and nature of the contacts.
How to know if there are sufficient minimum contacts?
 Look at the Quality and nature of the contacts w/ the state
o Customers, advertising, volume of products, communication,
o Foreseeability:
 Can the person potentially see that they can be sued there?
 ALWAYS LOOK FOR IT.
In Personal: Jurisdiction over the person
Minimum Contacts can be done outside of the state; depends AT THE TIME OF THE
ACTION OF THE DEFENDANT

Purposeful Availment (Hanson v Denckla)

 The defendant must have made a deliberate choice to relate to the state in some
meaningful way before she can be made to bear the burden on litigating there.
 Knowledge of interaction in that jurisdiction.
 Seek protection of the law in that state
 The person or corporation knows that they will be in that state and takes
advantage of it.
 Stream of Commerce (Mcintyre case)
o Placement of the products alone is not enough to say the D purposely
availed themselves.
o Differing opinions in this.
o Intent of the party matters also. If they know where their products will be
travelling through with the intent to do business there.
Reasonableness and fairness (Burger King)
 Deliberate affiliation w/ the forum state by doing business with a corporation that
the possible litigation would be in Florida.
o Must have contacts before.
 Look at the interest of the forum state
 o Protecting citizens, burden on the defendant (lawyer fees), convenience
for both parties, shared interest. Plaintiff is the master of the suit

In Summary:
Personal Jurisdiction Elements:

Two steps to enforcing a long arm statue on a non-resident D:

1ÁDoes the forum state have a long-arm statute that authorizes state courts to have personal
jurisdiction over nonresident D’s under certain circumstances. (ex. tortuous acts within state)

2 If so, is that assertion of personal jurisdiction, on these facts, in violation of the due process
clause. The D must have minimum contacts within the forum state to satisfy the due process
requirement.

Determining minimum contacts:

look to see if General jurisdiction exists (presence, domicile) or.

Examine cause of action to determine if it arose from defendant’s Contacts, consent—Specific

jurisdiction.

 Requirements for specific personal jurisdiction:

a. Defendant must purposeful avail himself of the privilege of conducting
activities in the forum thereby invoking the benefits and protections of the
forum state’s laws.
b. claim must arise out of D’s forum related activities (nexus)
c. exercise of jurisdiction must be reasonable. Determine whether due process
notions of fair play and substantial justice would be offended by permitting
a court in the Forum State to reach the out-of-state defendant.
i. Burden on the defendant of litigating in the forum state;
ii. The interests of the forum state; and
The interest of the plaintiff in obtaining relief

1. B  SUBJECT MATTER JURISDICTION

The subject matter jurisdiction of the federal courts is limited to that authorized by the
Constitution as implemented by federal statute and decisional law. In general, it may be
categorized as follows:

1. 1  Diversity of Citizenship Jurisdiction

Diversity of citizenship jurisdiction under 28 U.S.C. section 1332 is grounded

historically in the desire to protect out-of-state parties from local prejudice. Its
main requirement is that there be complete diversity between opposing parties.
 Each plaintiff must be of diverse citizenship from each defendant. Also, the
amount in controversy must exceed $75,000.

2. 2  Federal Question Jurisdiction

Federal question jurisdiction under section 1331 presents fewer specific

difficulties. The principal problem in this area is to determine when an action
“arises under” federal law. A secondary problem is to know what types of actions
are within the exclusive jurisdiction of the federal courts under other specific
statutes.

3. 3  Removal Jurisdiction

Removal jurisdiction allows defendants to remove an action brought in a state

court to a federal court if the federal court would have had original jurisdiction
over the action.

4. 4  Supplemental Jurisdiction

The doctrine of supplemental jurisdiction is codified under section 1367 and

includes, under a single name, the concepts of “ancillary” and “pendent”
jurisdiction. In any form, supple- mental jurisdiction allows a federal court to
entertain certain claims over which it would have no independent basis of subject
matter jurisdiction, i.e., claims that do not satisfy diver- sity or federal question
jurisdiction requirements. It is important to note that supplemental jurisdiction
operates only after a claim has invoked federal subject matter jurisdiction, after
the case is properly in federal court. Supplemental jurisdiction operates to bring
additional claims into that case that arise from the same transaction or occurrence
as the original claim, but it cannot be used to get the case into federal court in the
first instance.

Service and Process 4e

A person must be served with notice about an impending lawsuit. If no notice is given it
violates Due Process.
Service of Process- the mechanism by which process/notice is transmitted to the
defendant (transmission of process)
Functions:
1. Exercises Adjudicative Authority
2. Gives Notice to party opponent

Process- consists of two documents: (summons and a complaint)

1. Summons- Is an official court document notifying the defendant that a civil
action has been filed against it and instructing it to appear in court upon penalty
of default.
 2. Complaint- Sets forth the plaintiff’s request for relief and some brief
statements of facts and the legal theory underlying the claim.

A. What kind of notice is required:

 In personam- must be to the defendant
 In rem/quasi in rem- seizure of property ; have to send notice to last known
address
 Unknown parties/corporations- authorized agent
o Landlord tenant- not sufficient to nail the complaint to their door

o However, you can serve a doorman at an apartment building (even though

he does not sleep there, he works there so the court sees that is residing
there)
In Personam: The person cannot be serviced in a state in which they are fraudulently
induced in. Intentional travel matters
In rem: Publication is good enough but must be reasonable enough to convey the
regulation of information. Reasonable of time, practicalities and peculiaries of the case.

A person can also consent by appearance, contract, filing certain doc

uments

Forum selection clause

 Sometimes in a contract a party consents to jurisdiction in a particular state.
 It can be seen as superceding the minimum contacts.

(Include pg 53 of E&E… Outlines from dropbox Rule 4 on service from FRCP

Defendants rights (Pg 53 E&E book)

 Special appearance
o A defendant travels to the forum where they were served ONLY to say
that they have no jurisdiction. Must not bring forth any additional defense
or court can see this as subjecting themselves to jurisdiction.
 FRCP 12:
o A Defendant may appear before answering to the merits of the complaint
and object to personal jurisdiction, and at the same time raise other
objections. (12 b)
 The objection must be raised immediately or lost in BOTH
 Cannot answer then raise personal jurisdiction claim
 Defendant can also ignore the suit, but risks entering a default judgment against
them.

Subject Matter Jurisdiction
The power of the federal courts to hear certain kinds of cases. Whether a court can hear
a particular type of case. All Federal Court claims must have subject matter jurisdiction.
General Jurisdiction: Ability to adjudicate on all types of claims
Limited Jurisdiction: Jurisdiction confined to a particular type of cases. (Federal
Courts)
Concurrent Jurisdiction: Ability to bring claim in state OR federal court.
 Objections to subjet matter can be raised at anytime, in appeal, or by court
themselves. (Rule 12)
 YOU CANNOT WAIVE SUBJECT MATTER JURISDICTION

2 types of SMJ
Federal Question 1331 and Diversity 1332

Federal Question:
 USC 1331: “District court shall have original jurisdiction over all civil actions
arising under the Constitution, laws, or treaties of the US”
 Cases that arise out of constitution or federal statute, or treaties
 Motley: Well-pleaded complaint rule: Look only at the complaint and at the
claim itself.
o The complaint and the claim must arise from Fed Question, not an
anticipated response or answer
o In deciding whether the case is under federal law
 Whether plaintiff would have to raise the fed issue in a complaint
that includes the elements she needs to prove to establish her
claim and ONLY those elements
o Depends on the law that creates the cause of action
 Any case that “arises under” the broad description of Article 3 of Const.
Grable & Sons
 to resolve a fed question to decide a state law claim will not always support
arising under jurisdiction.

(Missing something here… another rule or 2)

Diversity Jursidiction:
 Federal courts have Diversity Jurisdiction where the adverse parties are either
citizens of different states, citizens of a state and a citizen or subject of a
foreign state, between 2 or more states, citizen v state, state and foreign
state, citizen or subjects
 Amount in controversy is over $75,000
 There must be Complete Diversity
o If any of the plaintiffs are from the same state then there is no diversity.
o Different states on both side of the “equation”
How to determine citizenship of a person?
Whether the person is domiciled in that state
 Physical presence
 Intent to make that state your new home “indefinitely”
o Drivers license, voters card etc etc..
Determine $$ and location of person at the time of the complaint.
Citizenship of a corporation
 Principal place of business aka Nerve Center
o Where the corps business is under supreme direction
 Where they are incorporated.
Amount in Controversy
 Only that the $$ be in controversy not that plaintiff recovers.
 Must be made in good faith
o Court decides if the amount is met.
o The amount is calculated depending on what the the Plaintiff could
argue.
 2 or more claims under a single defendant- CAN be added
 2 claims from different defendants- CANNOT be added.
o D1 has 80k- Good. D2 has 20k- CANNOT be added to D1 claim.
o D1 has 30K + D2 with 50k- CANNOT add together.
 Joint claims- use total value of the claim.
There must be complete diversity the ENTIRE WAY THROUGH
Owen v Kroger: Because after amended complaint there was no more complete
diversity, they suit was dropped.
Examples
Complete Diversity exists here:
P1 Fl D2 MA
P2 NY D2 NJ

Again there is complete diversity if 2 P’s have same jurisdiction:

P1Fl D1 MA
P1Fl D2 NJ

There is no longer complete diversity and Congress requires complete diversity for diversity jurisdiction.
P1 Fl D1 MA
P1 NY D1 NY

Rule concerning the matter in a suit:

P v. D
-minimum matter in controversy for diversity jurisdiction, has to be an excess of $75,000

P v. D
-claim for property damage $40,000
-2 yrs b/f car accident there was a breach of K- $20,000
-D also bought something at ebay and never paid for it $18,000
-all claims come from unrelated transactions
-all equals $78,000, there is no requirement that all claims have to come from same transaction, thus there is
diversity jurisdiction.
-Plaintiff can join all claims against the D and have diversity jurisdiction against D so long as they all add up to more
than $75,000; it is not important that the claims be related;

P1Fl D1 MA claim against D1 for $40,000

P2NY D2 NJ claim against D2 for $40,000
- there is no diversity jurisdiction in this case b/c each plaintiff has to have a claim in excess of 75,000 against
each defendant.

***parties can’t add their claims together to get to the jurisdictional amount
***each party independently has to have the required amount ($75,000) in order have diversity jurisdiction
P1Fl $40,000 D1MA
P2 NY $40,000
-here even though all parties are from diverse jurisdiction, suit can only be brought if each P has a claim in excess of
$75,000 against D.

P1 FL D1 MA $40,000
D2 NJ $40,000
à Plaintiff must be diverse from all defendants (from different states); also, if there is more than one defendant the
plaintiff cannot add up the two claims against two different defendants in order to meet the requisite $75,000;
combining rule only applies to individual defendant, not groups.

à If it appears at the time the suit is brought that the amount will not exceed $75,000 the case will be dismissed
because there is no diversity jurisdiction

Supplemental Jurisdiction

1367: Jurisdiction over a claim that is part of the same case or controversy as another
claim over which the court has original jurisdiction. The Federal court can hear claim
that would otherwise only be heard in state court.

 Can only do this IF YOU HAVE SUBJECT MATTER JURISDICTION IN THE

FIRST PLACE
o It is the courts discretion to do this
 The claims must derive from common nucleus of operative facts
o Always met by claim that arise from the same transaction or occurrence
 Fed law and state law claim come from the same facts.
o Why?
 Judicial economy: dealing it all in one court because why make
plaintiff go through process all over again.
o State law does not have to always be heard.
 If dismissed state claim in fed court: refile in state court.

1367(b) applies only in a diversity jurisdiction

-Congress wants to limit power in diversity jurisdiction cases
-P can join multiple D’s in a suit under (a), but in (b) Congress said P is prohibited from using
supplemental jurisdiction join a suit against 3rd party (that was a non-party to original claim, D2) in
diversity jurisdiction if D2 is from the same state as P (if D2 is not diverse from P).
-if P brings a suit against 3rd Party (D2), then D2 must be diverse from P, can’t both be from state sate b/c
if they are from the same state,it will destroy diversity.
-since Congress requires complete diversity if P was allowed to join a 3 rd party to the lawsuit, who’s not
diverse from P, it would destroy complete diversity. The rule is meant to preserve complete diversity.
-this rule only applies to Plaintiff’s.
-however, if defendants join a 3rd party to the lawsuit in a diversity jurisdiction suit, the 3 rd parties
residence is not important, it doesn’t have to be diverse from D’s. (ex. P-Fl sues D1-LA and D1 then
brings suit against D2-LA. D2’s residence doesn’t matter.
So in the example above-if P-Fl wants to bring a claim against D-NY(student) and the owner of the car
D2-Fl, then he will have to file 2 separate suits. Federal for D and state for car owner
Exxon Mobil v. Allapattah Services - as long as one member of class action suit
satisfies minimum amount requirement – case can be filed in federal court regardless if
other Ps satisfy min. requirement
 As long as one person has the claim for valid diversity jurisdiction then everyone
else has it. (For plaintiffs)
 Only in cases for A SINGLE DEFENDANT.

REMOVAL: §1441, 1446, 1447- allows D to have state court case removed to federal
court.
- (a) Permits D to remove from state to federal “any action of which the district
courts of the US have original jurisdiction”
o Only state law actions that could have been brought in federal court by the
plaintiff originally (Fed Question/Diversity) may be removed by the
defendant (Caterpillar)
- (b) If claim brought in state court, based on federal question  defendant may
remove to federal court w/o regard to defendant’s residency (see 1441a)
o Exception: if claim brought in state court based on state claim 
defendant may not remove case to federal court b/c of diversity if the claim
was originally brought in defendant’s home state
- D of Ds can only remove a case from state court to federal district court for
the district where such action is pending. (ex. Texas has 4 districts. If suit is
brought in Dimmit County state court, it would be removed to the Western District
of TX, the district where the action is pending.)
o D cannot remove a case from federal to state court or from a state court
to a court of a different state, or to a federal court in another state, or even
to another district in the same state.
- If a state does not have jurisdiction to hear a claim, it can still be removed to fed
court.
- If you start in state court, you can only remove to the fed court in that district.
o Suit in 19th Circuit (Broward).. cannot remove to middle district of Florida.
Must remain in District Court for Southern District of Florida.
- The ENTIRE SUIT is removed, not only a piece.
o Cant go from fed to state courts.
- Procedure
o File notice in correct District Court w/ all papers (discovery/pleadings)
o Within 30 days of plaintiff’s pleading
o Plaintiff can remand case back
 Also has 30 days.
- General Rules.
o 1. All defendants must agree
o 2. You can only remove to the federal district that embraces the state
court – venue provision
o 3. Must remove within 30 days of service
Caterpillar v. Williams - A defendant may NOT remove a case by raising a federal
defense UNLESS the original claim could have been brought in federal court
- If there is no diversity - must be federal question  “well-pleaded complaint rule”
- Two main things:
o 1. Plaintiff is “master” of his or her complaint
2. Federal defense may not be used as a basis for remova

Venue
Determines where the trial will take place.
Are you physically in the right spot?
State courts
 Car accident: Proper venue is broward county if it happened in broward county
Federal Venue State
§1391 - General venue statute: (a) provides for venue in diversity cases; (b) federal
question cases (usually the same analysis)
- Choices:
o 1. Lay venue in any district where all defendants reside
 If all D reside in different districts of same state then all can be sued
where any of them reside
 Human being  Residence domicile
 Businesses 1391(c) Resides in every district where it is
subject to personal jurisdiction
o Place of incorporation and principal place of business
(General in personam jurisdiction)

o 2. Lay venue in any district where a substantial part of the claim

arose
o 3. Fall back provision

- (a)(1) and (b)(1) – venue available in any judicial district where D resides, so long
as all the Ds reside in the same state
o Can sue them in the district where they reside. Not in another district.
o Look to 1391 C for businesses
- (a)(2) and (b)(2) – venue available in 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
o Think of contacts
- B) 3); Fall back provision. Only if no district is valid under section 1 and 2. : Any
district w/ personal jurisdiction is good.
Others
 Defendant can waive/forum selection clause
 Venue can be restricted by law (patent cases)
 Venue doesn’t appy to removal.
 o “proper venue for removal actions is the district court and division
embracing the place where such action is pending in state court.

Transfer
TRANSFER of Venue: transferre must be a proper venue and have personal
jurisdiction over D. Must be true without waiver (independently true)
§1404(a) – Change of Venue – Applies when transferor is proper venue. District court
may transfer any civil action to any other district or division where it might have been
brought. May transfer based on convenience and the interest of justice.
- Change in venue = change in geographic location
- Removal (1441) = change in forum w/in same state (state  federal)
- Either plaintiff or defendant can file change of venue motion
- Use law from original jurisdiction in which case would have been heard in
o i.e. if case changed from California to Maine  change of venue okay but
California law still applied
- Public and private factors  where would it make more sense to have case?
o Where witnesses are, where evidence is
1) 1406 should be applied: If VENUE is improper in the court selected by P, the
D can properly object and the court may transfer the case to another venue
(proper court) where it could have been brought rather then dismiss it. (A good
attorney would file a rule 12 motion right away)
a) Courts do not transfer on their own motion; they only transfer on the
motion of defendant, (made under rule 12, )
 Where P’s choice of forum does not comply with the governing
venue rules it is D’s obligation to object.
 Rule 12h(1): If D does not make a timely objection to improper
venue (in a Rule 12 pre-answer motion if made, or in your answer if
you do not make a rule 12 motion), then he waived his right to
object. IMPORTANT
Note that when transfer is made for this reason, the law of the new venue is
applied.
Forum non conveniens
o Where the courts may refuse to look at a matter because of a more
convenient forum.
 What is the test for ^??
o Piper v Reyno
 There has to be an alternative forum
 When suit in the chosen forum would be oppressive and troubling
to a defendant out of proportion to the plaintiffs convenience OR when
the chosen forum is inappropriate because of considerations affecting
the courts own administrative and legal problems
o How do you know this?
 Public and private factors.
Private interests (interests of the parties) to consider in transferring where venue is already proper: what
the ct will consider in deciding to transfer or not
where it took place or location
the convenience of the parties and witnesses relative to their respective residences
Ability of the parties to bear the cost
Public Interests judicial efficiency Availability of the compulsory process (the ability to make people
show up)

Erie Problem
 Addresses issues whether a court uses state or federal law in all subject matter
jurisdictional cases. (Diversity, federal question, supplementa;)
 Always remember, Courts do not make laws, they JUDICATE the law.

1. Is there a FRCP in conflict?

o Is it really a part of the conflict?
 Yes; Hanna:
 Valid? under rules enabling act?
 Does rule modify substantive rights? (almost always no)
 Pick the federal rule of civil procedure
 No: Erie
 Is it substantive or procedural?
 Substantive
 Issue bound up w/ rights and obligations
created by state law, state statutes, state constitutions
 If yes, State law
 Procedural
 Is the issue one of form or mode and
manner?
 If yes, Fed law
Why? They want uniformity. Applying the law to be the same.
2. When FRCP doesn’t apply: Outcome Determinative
a. Is the issue one where applying fed law will likely affect outcome in any
way?
i. Yes: State law.
1. As a matter of policy, not constitutional presumption.
ii. No: Fed law
iii. Consider twin aims.
1. Forum shopping and equitable admin of law. We do not
different results
b. Is this the type of difference, that would make litigate choose state over
fed?
Again, you want uniformity, so courts made this distinction in order to keep the
uniformity for all the states

3. Countervailing Federal interest

a. Leaning towards state: Does this issue relate to a more important fed
interest? (Right to jury trial? A constitutional issue)
i. Pick federal: If a more important fed interest.
1. Important to weigh in the federal interest in determining laws.

Ascertaining State Law in Federal Courts

 - When using state law in federal courts the federal courts must look at and analyze
prior state court findings to decipher what they meant by their law.
o Ex. Deweerth v. Baldinger (painting)- federal court must analyze state court
findings to determine how state court meant to interpret state laws and use
that interpretation in federal court.
Pleadings

FRCP 8 -PLEADINGS
- The written statement of claim or defense filed by the plaintiff to start the case.
- Function of pleadings is to provide the other party with notice of the pendency
of the action the nature of the pleaders contention to inform the D of what
they need to prepare for discovery, settlement or disposition on a more complete
factual record

Sufficiency of a pleading- what must be in complaint?

Federal rule 8(a) -notice pleading rule
1. Short and plain statement of the grounds for the courts jurisdiction unless
the court already has jurisdiction and the claim needs no new jurisdictional
support- (subject matter jurisdiction)
2. A short and plain statement of the claim showing that the pleader is entitled to
relief AND gives the defendant sufficient or fair notice (statement of the claim)
3. A demand for the relief sought which may include relief in the alternative or
different types or relief (What they want)
a. The complaint must give the person enough to tell the judge they cannot
file a motion to dismiss.

Is there anything the defendant could do against a complaint?

 Rule 12 e: Motion for more definite statement.
o Forces the plaintiff to give more facts, more information about what the
complaint is in.
o Is this beneficial?
 Yes for Rule 9.. For rules that you need more information in the
complaint.

Conclusory allegations in the complaint are permissible under Rule 8 if the case
is not one of those special cases that require a greater particularity pleading
requirement..
ii. Greater Particularity Pleading Requirements: Rule 9(b)
 complaints that require a greater particularity pleading requirement 1. Fraud or
2. Mistake
 can’t plead conclusory allegations in the complaints of fraud or mistake.
  In all averments of fraud or mistake, P must put forth the facts (motive and
opportunity) that give rise to a strong inference that the defendant had scienter
and/or knowledge.
 must put facts which are the premises upon which conclusions of ultimate facts
are based. ‘why’ statements (R.9) ex. “A hit B”

o Plausability standard
 Not following rule 8 standard.
 Look at complexity of the case.
 Reasonable expectations that discovery will lead to more information that
supports the claim.
 This is MORE than rule 8.
 This hurts the plaintiff. They have to do more.

Twombly and Iqbal- changes to what need to be in complaint

1. Plaintiff must plead facts to a plausible claim
2. Court will ignore conclusions of law
3. The court will use its own experience and common sense to determine if a claim is
plausible

As soon as you enter discovery, it is a motion for summary judgment. If it is before

discovery, you enter a motion to dismiss.

Burden of Proof: He Who Pleads MUST Prove

- Defendant has burden to prove affirmative defense
o Rule 8(c) in responding to a pleading a party must affirmatively state any
avoidance or affirmative defense
- TYPES:
o Burden of pleading
 Making allegations- who has to allege the elements
o Burden of production
 Who has to produce all the stuff- evidence- papers witnesses
 Asking the other side to give you stuff
o Burden of persuasion
 Describes the standard that the finder of fact is required to apply in
determining whether it believes that a factual claim is true
 BARD/ Preponderance of evidence
 all 3 link together despite meaning different things

Ethical considerations
1. When is pleading inconsistent?
2. When do we have to do something about it?
3. How does it work?
- Doesn’t matter if you have more evidence as to one claim then another- as long as
you have evidence it could be either one of three claims you MUST bring all three! 
Suing two people for same thing – no inconsistency

 Allegations made in good faith, you can bring alternative allegations in

order to find the truth
o You can plead in the alternative and let the jury decide

Frivolous claims – meritless or abusive litigation = frivolous

- Meritless- not based on any actual facts that the plaintiff has any ability to provide
any evidence for
- Law- has to be based on (1) precedent (2) argue law should be changed or is
incorrect
o ** must have basis in fact and law to bring a claim
o if not it could be categorized as frivolous
 frivolous claims are inconsistant

As an attorney your job is to bring causes of action in good faith and let the jury
decide.
 You bring stuff that you want the jury to bring up. All in good faith.
 
Did Lawyer have professional obligation to bring up the claims even though
 Must provide competent representation

If the plaintiff verifies his complaint, defendant must verify his answer

 The purpose of the answer is to admitting or denying claims

o Giving notice to the plaintiff about allegations and whether or not they are correct.
When a party denies something, then plaintiff now have the burden to prove that allegation.
 Defendant has the ability to show that they are denying.
 
You can argue for reversal if a legitimate argument.
 Rulings do not make something definite. You can appeal stuff!
You do not have to affirmatively withdraw a claim in a complaint based after no discovery info.
 You cannot just keep saying that is what you want to prove.

Joinder of Claims
X(Fl) v Y (GA)
 Car accident >$75,000
 Claiming negligence
  Can I also due for defamation??
o YES. Rule 18 A
 May join as many claims as it has against opposing party.
 X has permission to do this because the rules say so.

Rule 18A: Multiple claims in the same pleading.

 Plaintiff can join all claims they want.
 No requirement that claims be related, only that they be against the person being
sued.
o P sues D, claiming that D intentionally assaulted and battered him. Rule 18 allows P to
join to his assault and battery claim a claim that D owes P money on a contract entirely
unrelated to the tort claim.
o Ex. Linda breached K with Verna. Month later Linda ran into Verna's car. Verna can join
her K and negligence claims in single lawsuit against Linda.

The court must have subject matter jurisdiction of each joined claim individually:
o X-illinois sues Y-illinois on a claim arising under federal law. X wants to add an unrelated
claim against Y in federal court but arising under state law.
o Under Rule 18 X can add additional claims. Here, b/c the additional claim is
state claim against a nondiverse D, it can only be brought in federal court if it
is sufficiently related to the underlying federal claim. Only if court has
supplemental jurisdiction over state claim will it hear the claim.

X (FL) v Y (GA) car accident for $80k. Diversity so yes jurisdiction. If defamation suit
under $75k, under supplemental jurisdiction there can be suit also. (Has some
requirements though)

If there is original jurisdiction for the joint claim then good, if not depends on
supplemental jurisdiction.
 Supplemental jurisdiction: same common nucleus of common fact.
 It is at the judge’s discretion if it makes sense to combine the two

Joinder of Claims- Claim joinder deals with the ability of one party to join two or more separate
_CLAIMS AGAINST____ another party. Rule 18. There _IS NO__ limit to how many claims one can
make. (but there are restrictions)
 Plaintiff _CAN___ join all claims against defendant
 Claims __DO NOT__ have to be related
 Must assess ___SUBJECT MATTER JURISDICTION_____
 RESTRICTIONS: If not look to supplemental- the claims arise from the same common nucleus of
facts

FRCP 13 Counter-Claims – claim against an opposing party– filed with your answer

(1) 13(a)(1) Compulsory counterclaim- one that arises from the same transaction or
occurrence as the plaintiffs claim in which the court has jurisdiction over. Done at
first pleading  you fail to do so you are barred from bringing it at any other point in
time.
  Must be brought up in D’s pleading in the first action if not the D loses the
claim
 Compulsory counterclaim is within fed courts supplemental jurisdiction
and no independent Subject matter grounds.
o Plaintiff submits himself to counterclaims arising from the same
transaction or occurrence

(2) Rule 13(b) – Permissive Counterclaim – pleading may state as a counterclaim

against an opposing party any claim that is not compulsory. Does not arise from the
same transaction or occurrence of Plaintiffs claim. Does not have to be asserted
here
 Assertion of coutnerclaims completely unrelated to the original claims.
 Requires own jurisdiction standard.
 Never lost once asserted.
Permissive counterclaim: ex. P sues D for negligence in car accident and D counterclaims for a
debt P owed him on something D sold him.

-but when the claims are somewhat related but your still in doubt always bring the counterclaim.

How do you know whether it is related or not? Logical Relationship Test

4 Part Test to determine whether a claim is compulsory or permissive:

1. Are the issue of fact and law raised by the claim and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on D’s claim without the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute P’s claim as well as D’s counterclaim?
4. Is there any logical relation b/t the claim and the counterclaim
5. Think about discovery- Foster.

XvY
 Breach of contract more than 75k
 Can Y assert a Negligence claim for wall? (Counter claim)
o Was this claim cumpolsory?
 Had to bring it up in the original suit.
 Would it be permissive in the original suit?
What else can help you figure out if it is cumpulsory?
 Logical relationship
o Same K
o Same people.

Exam Tip:
1. does claim arise "out of the transaction or occurrence that is the subject matter of opposing party's
claim"?
2. If NO, it's a permissive counterclaim.
3. must meet jurisdiction standards standing alone

1.does claim arise "out of the transaction or occurrence that is the subject matter of opposing party's
claim"?
2. if Yes, then claim is compulsory and court has subject matter jurisdiction over it and can hear counterclaim
3. if not asserted now it will be barred from future action by res judicata.
FRCP 13(g): Cross-Claims– against a co-party  must arise from same transaction or
occurrence as the underlying case
 Defendants vs other already named defendants
 1.Cross-claims may be filed between those already named as defendants on a claim,
 2. the claim arises must arise out of the same transaction or occurrence as the underlying
claim

Not subject to jurisdiction grounds. If the P v D1/D2 claim works, supplemental

jurisdiction allows D1 v D2 to work.
Cross claims follow same joinder of claims rule 18. : Anything can be brought
after the first claim is brought up.
Cross claims are permissive- (Can be brought up later)
 Ex. Betty got in car accident with Rob and Sally sued both. Rob might seek to recover his
injuries from Sally, co-defendant.
o 1. b/c Rob and Sally were already named as D, Rob can sue Sally,
o 2. Rule 13 will permit cross-claim b/w Rob and Sally for negligence arising out of the
accident over which P sued, but won't permit Rob to bring a cross-claim against Sally
for her breach of K to purchase Rob's house.

Joinder of Parties
FRCP 20: It is at the discretion of the Plaintiff.

o ***if counterclaims or cross claims involve the addition of new parties, they too can be joined as
far as Rule 20 is concerned. (ex. if D bring 3rd party)

-it is up to the P to decide ( P's option) who the parties to the suit will be and which claims will be
asserted in the action.
- Rule 20 allows P to a) join other P's with himself or b) make several parties co-D's to his claim.
If they all come out of the same person or group

Multiple P's may join together in an action if they meet both:

they assert claims arising out of the same transaction or occurrence and look at
"logical relations" "common evidence"
ex. P's were both demoted and replaced by younger employees and both
received poor evaluations. These claims are logically related even though both
were hired at different times and in different departements
their claims against the D or D’s will involve a common question of law of fact.
Ex. both P's sued for age discrimination under ADEA. This is a common question
of law.
Ex. "common question of law or fact" negligence of Taxicab when Driver and
Passenger sued Taxicab for negligence.
  If it raises one common question
Jurisdictional Requirements:
o federal question or diversity claim- for subject matter jurisdiction
o if no federal question then all P's must be diverse from D and each P must
independently have claims over $75K.

o Reasons for Joinder:

1. When a number of claims involve a single transaction or occurrence, and the
same issue or issues will have to be litigated to resolve each claim, it is more
efficient to litigate those issues once in a combined action, rather than
repeatedly in separate suits.
2. Also, resolving those issues in a single action to avoid the possibility of
inconsistent judgments on the same issues.

II. Multiple D's

o Rule 20 also permits P's to join multiple D's if both are met: (same test is
met0

 1. claims against co-D's arise out of the same transaction or

occurrence (or series of transactions or occurrences) and

 2. contains a common question of law or fact.

Jurisdictional Requirements:
 Where joinder of D's is involved both D's individually must meet
requirements for in personam jurisdiciton:
 Each D must be personally served
 Each D must have minimum contacts
 Since federal courts in diversity suits follow the long-arm of the
state in which they sit ****
- subject matter jurisdiction.
-federal question OR
-in diversity action - diversity b/w P and D's must be complete

- in addition to the requirements of personal and subject matter jurisdiction,

Rule 20 joinder must satisfy venue requirements.
-in a case where there are co-D's who reside in different states, best way
to satisfy venue req. will be to bring suit in a district where substantial part
of the events giving rise to the claim occured.

Compulsory Joinder

Allows Defendant to seek mandatory joinder of a person not a party to the action. Normally Defendant
will want to join other D's.
Necessary - parties whose joinder if feasible is required under 19(a)

Indispensable parties- parties who are so vital but because the joinder is not feasible the whole action
must be dropeed.

Persons required to be joined if feasible: meet any of the three

(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:
(Who is NECESSARY?)
a. In that person’s absence, the court cannot accord complete relief among
existing parties; (efficiency) – courts don’t rely heavily on this
b. That person claims an interest relating to the subject of the action and is so
situated that disposing 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 (focus on absentee - if not brought will be harmed)
ii. Leave an existing party subject to a substantial risk of incurring
double, multiple or otherwise inconsistent obligations because of
the interest (worried about defendant)
3 way test

 If absence the court cannot accord complete relief

o (Business partners)
 The party has an interest and their ability to protect that interest will be
interest.
o *If feasible
1. THERE MUST BE JURISDICTION FOR THE JOINED PARTY. NO
JURISDICTION MAKES IT NOT FEASIBLE
o (Business partners who have stock in the same item that is going to be
distributed)
 Would lead to double or inconsistent obligations.
o Suit between A and B.. C is saying that she deserves the relief in her
name.
What does the court do if not feasible?
o Throw the case out, go forward w.o absentee, go forward and change the suit to
fit the absanteed parties best interest.

Impleader
FRCP 14: When parties may bring in a third party who may be liable to P before trial
because the third party is liable to the origininal defendant.

X v. Y v. Z so Z is liable to Y

 Claims against a new party NOT in the lawsuit.

  Can go from P wanting to join also.
Depends on whether the complaint would be unnecessary complicate the case or
prejudice any of the parties.

 Has to comply with all the general rules of pleadings and process.
 There is also the same counter claim and implead other parties.
 Plaintiff can also sue impleaded party if the claim arise out of the same.
Usually done in matters where the D/P wants the other D to be pay for the damages
from P to D.

 Cant be done if the D1 just wants to make the second D liable to the P. Has to be
a reason for the connection.
 Depends big time on outcome of the first claim.
Impleader needs to be 14 days within a complaint.
Jurisdiction

 Impleaded party does not affect jurisdiction.

o X v Y (Diversity) Y impleades Z.. (no diversity between X and Z). Doesn’t
matter.
 There must be jurisdiction but it will usually be supplemental.
 Impleaded party also does not affect venue.

Intervention
FRCP 24: Cant do it for shiggles, needs to be a reason
X v Y (Z is over here saying they want to be involved in the law suit.

 You don’t have to but the party is rolling the dice with not being involved because
once the case is settled it is over . Res Judicata: Stand by their own decision.

24(a) - Intervention of right – Intervention will be allowed if:

24(a)(1) - Unconditional right from statute to be allowed to be part of suit, OR
24(a)(2) – Tells non party you have a right to intervene if; your interest may be harmed
if you are not joined (Atlantis)
(1)Person claim an interest relating to the property or transaction that is the
subject matter of the action
(2)Interest may, as a practical matter, be impaired if the person is not allowed
to participate in the case, and
i. Dr’s interest to protect patient
(3)Absentee’s interest is not adequately represented by those already parties
to the action

Must be timely: Court can reject if it would improperly interfere.

Note:
Jurisdictional Requirements:
-personal jurisdiction over the intervener and venue are non-issues, because the intervener is
voluntarily injecting himself into the suit and the forum in which it has been brought.
-if B sued C on a federal question and D wants to intervene, subject matter jurisdiction is met b/c of
federal question claim
-in a diversity case, D is required to meet subject matter jurisdiction by being diverse from C and have a
claim exceed $75K

ex. A-NY,B-CA, D-NY. B sues D by himself and A seeks to intervene as of right. b/c there no
diversity b/w A and D, A's intervention will not be allowed.

Rule 24(b) Permissive intervention-

A person will be allowed to intervene with court's permission, when the party’s claim or defense
has a question of law or fact in common with the pending action. (can be used when they lose
under Rule 24(a)
 Must be timely.
 No delay or prejudice in intravention.
 The court has discretion to deny this.

Note:
-personal jurisdiction over the intervener and venue are non-issues, because the intervener is
voluntarily injecting himself into the suit and the forum in which it has been brought.
-however, as in intervention as of right in a diversity case, the intervener must meet subject matter
jurisdictional requirements (must be diverse from the other party and meet $75K req)

Interpleader
FRCP Rule 22: X v Y is only in a lawsuit because Z
Interpleader: Rule 22

Enables a party holding a fund (stakeholder) to compel persons asserting conflicting claims to that fund
to adjudicate their rights to the fund in a single action;
 The Process in which a stakeholder allows a judge to decide.
 It is designed to prevent the party from being made to pay the same claim twice.
 key prerequisite to maintaining an action in interpleader: is that there be two or more claimant
to the fund who are adverse to each other
 bring it under statutory interpleader first since its easier if u can’t then bring it under Rule
interpleader
 if all u are is a stakeholder u just file the claim, turn over the proceeds that are subject to the
dispute, and then he doesn’t have to hang around, the court will take care of the rest since the
dispute is b/w the claimants over the money.

The parties competing are claimants (D)

Stakeholder -P

Rule Interpleader: Rule 22

-the Rule provides that when a person "is or may be exposed to double or multiple liability" he may move
for interpleader
-person can do this by coming to court as P, or by counterclaim or cross-clam as D.
Subject Matter Jurisdiction:
-jurisdiction must be based on federal question or diversity
Diversity-stakeholder must be completely diverse from all the claimants
Amount in controversy- must exceed $75K
Personal jurisdiction- personal jurisdiction according to federal rules of civ pro. (minimal contacts)
Venue- venue is proper in the district where the plaintiff-stakeholder resides, where all the claimants
reside, or where the claim arose.

Usually insurance companies trying to get people to figure things out.

Discovery
Scope of disvery: any relevant information to the subject matter involved in the action.

Deposition- Rule 30
 Usually towards the end. Very $$
 Party or non party, anybody who is relevant: subject to perjury
o Can ask them a lot. Big benefit in seeing the person in front of you.
 Your own lawyer can ask you questions during a deposition
o Cross depo.
o Objections
 Recorded: Any way.
 7 hours or a working day. Over multiple days
 There are privileges (Attorney/client)
 Protective order in limiting the questions asked
o Rape cases
o The burden and expense of producing the information for revealing
intimate facts that should remain private.
 You can object or threaten to call the judge in a depo.

Subpoena – FRCP 45 – bringing non-party to state to be deposed  Must have personal

jurisdiction over person in order to serve them with a subpoena

Duty to Disclose- Rule 26

 Both parties have a duty to disclose certain information may use to support
its claims or defenses
o No surprises!
 Must make good faith effort to disclose any information that might be relevant.
 All parties must cooperate
 Protective orders designed to prevent annoyance/embarrassment or undue
burdens.
Interrogatories- Rule 33
 Written question that must be answered under oath
 CAN ONLY BE SENT TO PARTIES OF A CASE
o Usually the lawyers write the answers
 Happens before a deposition
 25 Q max.
 Takes longer.

 What if you read interogatory and don’t think client has to answer
o You CAN object, but has to be specificity.
 You say I DO NOT RECALL (Not enough information to answer
this question)
 Burdenson, cant remember, vague
 If you skip an answer, you Waive it.

Production:
 Parties to a case.
 If you need documents from non party. Rule 34 C Subpeona
 Is there a limit to how many documents you need?
o NO
o Warehouse full of documents.
 What type of things do these cover?
o intangible. Things you cannot normally get in paper.
o Property, emails,
o They need to provide you with the opportunity to investigate
 Opposing side simply opens their doors and lets you look.
 Give you the bare minimum of guidelines.
 All tangible and intangible things count.
 It encompasses so MUCH.
o Basically anything.

Physical Examination – Rule 35

 the rule which provides for physical and mental examinations of parties is
applicable to 's as well as 's;  though the person to be examined under the
rule must be a party to the action, he need not be an opposing party
 People don’t want to see the Dr. again
 must affirmatively show that the condition sought to be examined is really in
controversy and that good cause exists for the particular examination
requested.
o It must be produced.
 Only parties are compelled to take such examinations, not non-parties.
Request for Admission-- Rule 36
 When you send a document and they have to check either Admit or Deny.
 Forcing their hand. They have to pick one.
 Most of the time they will say “not enough info to answer”
 
Rule 37 e: Electronically stored information
 Upon finding prejudice for loss of information (It has to have done something)
 If they can prove that you should have taken steps to preserve information, it can really hurt
you.
o Case dismissed or default judgment on you.


- Cost-shifting – discussion to whether the requesting or producing party should bear

the cost of discovery
o FIRST - Presumption is costs are on the producing party

Attorney Client Privilege

Not everything is privileged.
Applies to almost everyone who has communication.
Attorney client privilege: This privilege applies only to legal communications in
which legal advice is sought. The parties must show -
 They must have intended for the communication to be confidential.
 That the privilege has been invoked by the lawyer and his client (since it is not
self-executing)
 That the client has not waived this privilege. The client can voluntarily waive
the privileged
information or it is waived when it the information is put into issue in the litigation.

Privileged material is not discoverable

Work-product privilege
Materials done in ANTICIPATION OF LITIGATION are work products
o Someone falls in a parking lot so you make an injury report
o What kind of things does this protect?
 Photos.
 Witness statements/office memos/ camera recordings.
o Always make the argument that items are either in anticipation of litigatin or
not. That is how you make the argument for photos
 Items are part of opinion work product: not discoverable.
The privilege follows you after death
 The medium in which you are using for work product does not matter. As long as
it is in anticipation of litigation
How to overcome this privilege?
 discoverable only upon a showing that the party seeking such materials has
substantial need of them and that he is unable without undue hardship to obtain
the substantial equivalent of the material by other means
 If you can obtain the information on your own, (go take a picture of the sewer) it
is not privileged.
-Foster example: Snowy pot hole caused a tort.. that picture is discoverable because
chances are when you go and look for the pot hole, the snow is gone.

Discovery of Experts 26a

 When do you have to disclose the identity of an expert?
o Specially employed
o Can the expert articulate manners in ways that everyone can understand.
o Retained --> going to testify
 Or consulted and not retained --> wrote a report
 Retained and going to testify: Rule 26 disclosures
o Must disclose names. w/ information
o May be later deposed
 Consulted and wrote a report
o Only have to disclose upon showing of exceptional circumsances in
seeking discovery .
If youre not going to use the report, do you have to withhold?
You don’t have to, tell the other guy to look it up. But it is a conflict!!!

Any claim for emotional distress is going to bring up the possibility of expert testimony

 If you bring something up, you waive it.

 Cant bring lawyer to doctor examination:

o They have their own ethics, we have to trust it.
o Because this is mental, it was intangible things.
 We can limit the Dr. with an audio recording. Put safeguards in
place even though that you don’t win the argument, you can protect
your client.
 Limited in scope, counsel cannot sit there but we will have safeguards in
place to protect them
 
Protective order:
 Restricts discovery in some way.
Discovery Ethics and Discovery Abuses
Rule 26(g) signing disclosures and discovery requests responses and rejections
- All disclosures must be signed by at least one attorney of record
- By signing an attorney or party certifies that to the best of their knowledge after
reasonable inquiry they have sent all documents
o If attorney knew document existed and certified that everything was given
without it you are breaking this duty and will be sanctioned
 Policy behind sanctions deterrence, punishment, compensation
education and ethics
-  The court can also enter a default judgment against the non-complier if if finds that
a person
- willfully, maliciously, and wantonly abused the discover process.
What if everything was settled.
 Can we go back ad re-open a case?
o There is something, in a rule about post-judgement relief. Rule 60.
 Rule 60 B 6!!!!
o ANY OTHER REASON THAT JUSTIFIED RELIEF!!!
o Holy crap that’s crazy.

Disposition without Trial

What is the difference between Rule 12 b 6 failure to state a claim and demurrer
 12b6 is federal court.
 Looking only @ facts.
 Usually w.o prejudice
 Testing legal sufficiency of the complaint
 Demurrer is state court.
Judgment on the pleadings
 Just look on complaint an answer and adding nothing else.  
Voluntary dismissal
 Plaintiff burden.
o Files complaint and then ask court to dismiss the complaint.
o Dismissal is w.o prejudice.
 Rule 41 A 1 i
Involuntary dismissial
 When the party doesn’t do something.
 Failure to prosecute/follow through with discovery
 Can refile in another court
 The court dismissess under the same rule 41 b
Default Judgement
 Defendant doesn’t answer.
 Plaintiff asks for default judgement. Rule 55.
o When defendant fails to plea or failure @ outset: no answer
  Failure to respond to motion:

Summary judgement: Rule 56.

 There are no facts in dispute. 30 days to respond
 No issues of material fact.
o Something relevant to the elements of the case.
 Usually done after discovery but don’t necessarily NEED it after discovery.
o The second you clip an exhibit to motion, you take it away from just the
pleadings.
o You are now considering other information
You cannot win a motion of summary judgement if there is a question of fact.
You cannot decide if there is question.
 It is REALLY HARD TO SHOW THERE IS NO DISPUTE.
o It has to be a question of crap.
o If you are not sure who is at fault then that is it.

MSJ: You don’t have to be here anymore because it is not you anymore.
 Judges are scared of doing this.
 Would rather go to trial and let jury be wrong.
 
If the other side is objecting your motion.. You can just ask for an extention on the
decision.
 Do more iscovery and then we will decide if the motion can witshand.
 Rule 56 D.
You can also object that the reason for more discovery is not material.

Burden- moving party simply must show there is absence of evidence to support non-movants case;
moving party does not have burden to produce evidence to show absence of genuine issue of
material fact
- When moving party establishes its burden, burden shifts to non-moving party to refute this
dispute
- All elements of the claim must be proven

All inferences drawn must be in light favorable to non-moving party

- When opposing parties tell two different stories one of which is blatantly contradicted by the record
so that no reasonable juror could believe it  there is no genuine issue for the trial (Harris v. Scott)
- Non moving party is allowed to present evidence before summary judgment is awarded

Standard of how we know whether there is a disputed fact

o Slightest doubt
If we don’t know something, we CANNOT grant MSJ. Can we say the same thing, have
we gone through discovery, is there anything else we need to know to make a
judgment?
 The more you know the easier it is to prove to grant the motion.
 The judge has no witnesses here, just motions and oral arguments.
o "your honor I did it all and there is nothing in dispute"
Even if they don’t match, is the story a reasonable story in which it doesn’t create a
dispute?
Just because there is a dispute doesn’t mean you will always lose your motion of
summary judgment.
If it is unbelievable then you don’t have to believe it.

Steps for motion for summary judgment

1. Initial burden is on movant
2. Once you show in papers there is no disputed issue of material fact then ,
3. it is up to non movant to try to show that there is a dispute shifts burden
a. 56(d) summary judgment to be denied or hearing in motion to be continued
if non moving party hasn’t had chance to make discovery
** Always keep in mind is dispute we are talking about something that should go to the jury? **

When do you think attorney start to think about

settlement?
When you think about settlement EVERY STEP OF THE WAY.w
 
How do you make the decision?
 Calculating the money you make, compared to cost of going to trial
 Do you have enough arguments that wont make it frivolous?
o Pre-suit: demand letters, and both parties agree to pay before filing suit.
 The client decides whether or not to settle.
o You need authorization to settle.
 Even if the settlement is more than what client wanted YOU HAVE TO
CALL
 You can bluff your way at moments, but there is always a line.
2 elements
 Evaluating
o What is this case worth, what does the other side want?
o How likely that the plaintiff wins?
o What are the outstanding bills?
o Is this case worth it?
o What is my cut?
 Bargaining
o I got a high number, low number, think it through?
o Can you bluff?

Rule 16- judges have authority to bring parties in and get them to settle
- 16(a) pre trial conferences- court order attorneys and unrepresented parties to
appear at pretrial conferences
- 16(f) court may issue sanctions if party or attorney fail to appear at scheduled
pretrial conference or doesn’t participate or fails to appear at scheduled pretrial
 - NO COERCION to settle
- Cannot use sanction for failing to obey settlement requirement

Mediation
 You cannot bring up settlement negotiation @ trial.
 During settlement negotiation and numbers you can.
 Should always be third party neutral, you don’t always want judge to know what youre talking
about.
 Mediation is helpful, because negotiating against jerk, when the mediator is agreeing to you it
gets jerk to come back to reality.
Compelling a party to mediate: Note 2 pg 1055

Trial
Very few cases actually go to trial. Only used to find the validity of facts.
Trial- Only used to resolve disputes of facts
- Bench trial- trial in front of a judge
- 7th amendment- preserves right to trial at law not at equity
- Trial by jury
o P files for a jury trial when he files for complaint
o If statute gives you right to jury you get jury trial
- FRCP 2 combines court of equity and court of law

Pretrial order – discloses undisputed facts; contentions of parties as expected to be at

trial and informs the court as to what parties are willing to agree upon
- Supercedes the complaint and the pleadings
- If something is not in the pre trial order it cannot be discussed at trial (CANNOT
MISS ANYTHING!)

Two principle questions

- 1. What test shall be used to determine the right to jury trial?
- 2. How shall that test be applied

For a Jury Trial: there used to be 2 systems, no jury in equity.. Now it is combined

Common Law claims Equitable claims

 Breach of  Injunctive relief
K  Declaratory
 Torts Judgment
 Fraud  Specific
 Monetary performance
Damages  Mandamus
 Violation  Reformation
of Statute  Replevin
 Malpracti  Restitution
ce  Estoppel
 Payment  Trustee of
of K Fiduciary duty
 Negligen  Rescission/Ca
ce ncelation
   Quiet title
   Action to set
aside an arbitration
award.
 
 
 
First find out what remedy is required. If you have a case with both. The jury can decide
part of it, and judge can decide part of it.
 Jury needs to decide legal
 Judge decides equitable.

- Clean up doctrine- legal defenses in equitable proceedings must be tried first by

the jury leaving the judge to decide thereafter any issues of fact pertinent to the
equity claim that were not resolved during the jury trial
o First jury hears legal claims  then judge can answer all issues of fact
pertinent to equity claim

Rule 38.
 The judge tells the jury to decide the specific part. For certain types of
claims and remedies.
o As long as anything is legal,, you get a jury trial
 2 part test
o Cause of action-Compare statutory action to the 18 th century actions.
n
o Remedy Sought – Law/Equity
Using this to find out whether or not you have a legal right and whether you have a right
to jury trial.

Congress can limit right to jury trials w.o violating 7 th amendment

 Ex: Administrative processes. They are a lot more complicated so don’t need a
jury.
Jury/ Post Trial
Motion for judgment as a matter of law: FRCP 50
 May be made at any time before the case is submitted to the jury.
1. FRCP 50(a) Judgment as a matter of law Comes up at trial and takes case away from jury
to be decided by the judge.
Foundation case: Pg. 993 Simblest v. Maynard:
o 50(a)(1) Standard- grant motion of reasonable jury could only come out one
way. Grant motion because reasonable people could not disagree on result.
o Too complex and complicated for jury of average people (i.e patent
infringement cases)
o Court can never do this on their own MUST be a motion
o 50(a)(2) timing- can only move after other side has been heard at trial
o 50(b) Renewed judgment as a matter of law. Comes up later. Here, court
denies judgment as a matter of law and let the case go to the jury and jury
returns verdict but the verdict is incorrect (goofy) now loser makes renewed
motion for judgment as a matter of law.
 Must have already moved for JMOL at trial.
 Switches winners
2. FRCP 59(a)(1)- motion for a new trial
- Judge things something went wrong and it should be started anew
- 59(b) motion for new trial must filed no later then 28 days after trial
- Do- over

Judges prefer not to enter JML's because it goes against the grain to require citizens to take
time from their other pursuits to decide a case only to yank it out from under them.

Standard of review for judgment as matter of law

- Consider all the evidence- not just that evidence which supports the non movers case
but in the light and with all reasonable inferences most favorable to the party
opposed to the motion
- TEST- abuse of discretion- whether previous court abused discretion in entering
verdict
o is there enough evidence to grant the motion- sufficiency of the evidence 
leads to concern that you're taking power away from the jury
o Verdict needs to go against the great weight of the evidence
 Factors:
 Simplicity or complexity of the issues
o In Spurlin, juries hear lots of products liability cases.
 The degree to which the evidence presented was in dispute
 Whether any undesirable or pernicious element occurred or
was introduce at the trial
  Prejudicial statements could be grounds for a new trial( Foster
talked about it in class)
- Excessive verdict = abuse of discretion
o Remitter- option to accept a reduced damages award or proceed to a new
trial (option given by judge)
o Additer- judge increases amount or go to new trial (Doesn’t happen often)

The judge is informing the jury because jury is finder of fact.

 The judge can tell the jury his opinion,
 As long as he instructs the jury that they are the ultimate decision.
 
Jury has a lot of power, but power within a certain framework: One conclusion by a
reasonable man
 
How to instruct the jury? Both sides submit their rules and judge makes.
 YOU ALWAYS NEED A JURY INSTRUCTION
 The judge has an obligation to instruct the jury of the substantive law.
 
When do you give this? Rule 51
 Before or after arguments
o Before anybody speaks
o After everybody speaks and before they walk out of the room.
 Best is probably both. More helpful.
Jury Instructions- rule 51
- Before case submitted to jury for verdict judge gives jury instructions might also be
given at beginning of trial if it is a very complex trial.
o Issues in dispute; which party has burden of proof on each issue; rules of
substantive law2 applicable; kinds of verdict jury may return; and the
procedure to be followed in deliberation and reaching a verdict
- Judge has an obligation and must instruct jury on whatever theories of the case are
reasonably supported by the evidence and what the law is. Whether this facts fit
with the definition of the law.
o Rule 51(c) – objections – counsel has absolute right to argue in jury trial
General Verdict- Yes or not for plaintiff or defendant without reasoning
Special Verdict- common law making jurors find specifically on all issues of P’s case

Confidentiality aspect of jury

- Internal and external influences
o New trial granted for internal reasons: extraneous information brought to
juries attention; outside influence was improperly brought to bear upon
any juror; whether there was a mistake in entering the verdict into the
forum
 Bribes, attorney-approaching client, reading newspaper etc.
 Policy behind it is to allow jurors to voice their opinions and not be
accountable to explain themselves
  Common law: prohibited the admission for juror testimony to impeach jury verdict
o Only exception is extraneous influence
 Physical or mental incompetence is INTERNAL NOT EXTERNAL.

What is a judgment?
 It is a decision.
 Legal document that decides decree f court.
 Effective upon entry.
o Triggers time period for post trial motions.
 Motion for new trial
 Motion for appeal
 Motion for judgement as a matter of law.

Res Judicata/ Collateral Estoppel

Res Judicata: Things adjudicated.
 You cannot intervene on a case to bring a claim on issues already decided.
 You have a case, the case comes to an end, the court has made a decision, now
you cant go back and relitigate the same case.
o Puts a stop to multiple bites of the apple.

1. You have intitial case

2. Did it end?
a. Actual decision on the merits
i. Not a procedural, statute, rule errors.
2. Is it the same case?
a. Identical case?
b. Same parties.
2. Same cause of action in both suits
 
Public policy:
 We need to have an end. You cannot have the same person keep suing you for
the same thing your entire life.

Issue Preclusion/ Collateral Estoppel:

Collateral Estoppel: binding effect of a judgment as to matters actually litigated and
determined in one action on later controversies between the parties involving a different
claim from that on which the original judgment was based.
- Party wishes to invoke prior claim on present claim

Standard of Review: Issue Preclusion

- De Novo

Elements:
 1. The issue in both proceedings are identical
a. Each case may have same recovery but pay attention to the actual ISSUE
2. The issue in the prior proceeding was actually litigated and actually decided
a. If claim conceded by parties it was NOT litigation and NOT precluded
b. Case must ACTUALLY go to trial and ACTUALLY be given a final judgment
3. There was full and fair opportunity to litigate in prior proceeding and
4. The issue previously litigated was necessary to support a valid and final
judgment on the merits

o Forced to split the claims.

 Claims 1 had to be in administrative process.
 There is no way to combine them.
 They belogn in 2 different places.
 If they belong in different places res judicata cannot be forced

What is the difference between Res judicata and Collateral estoppel?

 Res judicata is that the fact has been decided.
o Cannot re brin the claimg
 Collateral estopped: Because it is an issue..it can be brought again
 
Claim is a cause of action.: Contract
Issue: is an element: consideration.

Were not using same analysis to come with the decision.

 There was no collateral estoppel.

 Collateral estoppel?
o First one was not fully litigated.
o Court looks back at what happened in the first piece.
Not fully litigated
 Informal process.
 No actual investigation.
 There needs to be a full discussion of issues.
o No discovery.
 What did the process look like?
 
Are administrative agency proceesings similar or different than court
proceedings
 They have been using these as preclusion.
 Does it look like court proceedings?
 Did Congress intend for there to be perclusive effect?
CIVIL PROCEDURE- BASIC VOCABULARY

1. A complaint is a statement of Plaintiff/Petitioners claim against the Defendant. You are alerting and
providing notice of course of action.
Of Plaintiff or defendant who file the complaint? Plaintiff

2. Most often, the responsive pleading to a complaintis either a Motion to dismiss, by which a
defendant claims that the plaintiff’s case should go no further, or (b) an answer, by which a defendant
admits or denies (or states that he/she/it lacks knowledge regarding) what the plaintiff has said in the
complaint.

3. The Federal Rules of Civil Procedure (FRCP) , plus local rules where applicable, govern practice in the
federal district courts. What is a federal district court? The principle trial court of the federal system.
(Federal>>Appeal>>Supreme)

4. In State court systems