Civil Procedure Outline Fall 2023

Stacy Zaleski
Professor Hines

I. INCENTIVES TO LITIGATE……………………………………..……………….4
II. PLEADINGS……………………………………………………………………….………. 5
What is pleading?
Rule 7: Pleadings Allowed
Rule 8: General Rules of a Pleading
Rule 12(b): How to Present Defenses
Complaint: Plausibility Standards
Allocating The Elements…………………………………………………….……8
Responding To The Complaint…………………………………………….......9
Rule 7:(a)-(b).
All About Rule 12: Pre-Answer Motion to Dismiss
Rule 8: Answers, Denials, and Defenses
Rule 55(a)
Amendments………………………………………………………………...…………11
Rule 15: Timing
Foman v. Davis Standards
Rule 15(C)(1): Relation Back Doctrine
Ethical Limitations…………………………………………………………………..12
Rule 11: Generally
Rule 11(A) Signature Requirements
Rule 11(B): Potential for Violations
Rule 11(C): Sanctions
Monetary v. Non-Monetary
U.S.C section 1927
III. DISCOVERY…………………………………………………………………………...15
Modern Discovery
Rule 26(B): Discovery Scope
Rule 34: Requests for Production
Tools of Discovery…………………………………………………………………..16
Rule 26(A): Required / Initial Disclosures
Rule 26(B)(3); Trial Prep Material
Rule 26(B)(5): Claiming Protection / Privilege
Rule 26(F): Party Conferences / Discovery Plan
Rule 30 and 31: Oral and Written Depositions
Rule 32: Using Depositions in Court Proceedings
Rule 33: Interrogatories
Rule 35: Physical and Mental Evaluation
Rule 36: Request for Admission
Rule 37: Motion to Compel and Failing to Act
Scope of Discovery………………………………………………………………………..21
Rule 26(G): Discovery Rule 11

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Rule 26(C): Protection Orders
Experts……………………………………………………………………………………………22
Rule 26(b)(4)
Ensuring Compliance…………………………………………………………………23
Rule 30(d) Duration; Sanction; Motion to Terminate or Limit
IV. RESOLUTION WITHOUT TRIAL…………………………………………………..24
The Pressure to Choose Adjudication or the Alternative
Rule 41: Voluntary v. Involuntary Dismissal
Rule 55: Default Judgement
Adjudication without Trial; Summary Judgement…………………………25
Rule 56: Summary Judgement
V. THE TRIER AND THE TRIAL………………………………………………………. ..28
Choosing and Challenging Judges
Recusal: Generally
Peremptory §144
Required §455
Sharing Power with the Jury……………………………………………………….29
1791: 7th Amendment
Rule 38 and 39: Jury Trial Rules
§1870
§1861
Rule 47: Selecting a Jury
Voir Dire: Questions
Final Pretrial…………………………………………………………………………………….30
Rule 16: Scheduling Conference
Judges Guiding Juries………………………………………………………………30
Rule 48: Numbers
Rule 51: Instructions to the Jury
Judges Controlling Juries and Judgement As A Matter Of Law…… 30
Rule 50(a): JML
Rule 50(b): RJML
Judges Undoing Verdicts………………………………………………………………32
Rule 59: New Trial
Appealing RJML and New Trial Motions
VI. APPEALS……………………………………………………………………….…………35
In General
§1291: Final Judgement Rule
§1292: Limitations on Final Judgement
54(B): Multiple Claims / Parties
Writ of Mandamus
Collateral Doctrine
[Link] JURISDICTION………………………………………………………36
Constitutional Formation of Power
Specific Jurisdiction
Establishing Minimum Contacts
TNFPSJ (Reasonableness Factors)
Plurality: Judge Opinions

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General Jurisdiction
VIII. NOTICE ………………………………………………………………………………41
Constitutional Requirements
Hierarchy of Notice
Rule 4: Service of a Complaint
IX. Subject Matter Jurisdiction Of The Federal Courts…………….43
Constitution Art. III Sec. 2
28 U.S.C. §1331: Federal Question Jurisdiction
28 U.S.C. §1332: Diversity Jurisdiction
28 U.S.C. §1441: Removal of SMJ
X.PRECLUSION9Respect for Judgements)……………………………47
Res Judicata: Claim Preclusion
Requirements
Collateral Estoppel: Issue Preclusion
Requirements
Burden of Proof
Doctrines of Preclusion
XI. JOINDER(Probing the Boundaries)…………………………….…………48
Rule 18: Joinder of Claims
Exceptions and Issues
Rule 13: Compulsory and Permissive Counterclaims

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I. Incentives to Litigate

A. Because of jurisdictional limits on the federal courts, about 95 percent of

litigation in the United States occurs in state courts. In 2018 (the most recent year for
which complete data are available), just fewer than 83 million cases were filed in those
state courts.‍‍*1 That number represents the outcome of almost two decades (1984-
2000) of rising rates of civil litigation, followed by two decades of flat or declining rates.

B. Like professionals in many fields, lawyers tend to be a lot better at

understanding their specialties (civil rights litigation, antitrust, product liability, etc.) than
understanding the context within which they practice that specialty. Legislators and the
press often have similar difficulties in seeing things in context. This brief introduction
should help you in two ways:

[Link] understanding the topics you will be studying in civil procedure—why,

for example, procedural changes affecting pleading and discovery will affect
more cases than procedural changes that control only jury instructions; and

[Link] understanding and interpreting the legal system as a whole.

C. 210-17 (Troupe)- Plaintiff Zelma Troupe’s slip and fall on premises owned and
operated by Defendant C & S Wholesale Grocers and was originally filed in the State
Court of Bibb County, Georgia.

1. Any action initially brought in state court may be removed if “the district
courts of the United States have original jurisdiction.” Title 28 U.S.C. §1441(a).
“One category of civil actions with such original jurisdiction is those between
‘citizens of different states’ where the amount in controversy ‘exceeds the sum or
value of $75,000.’” At issue in this case is whether the amount in controversy
exceeds that required for this Court to exercise federal subject matter jurisdiction
under Title 28 U.S.C. §1332(a)(1).

D. 217-20 (Geoghegan)- What, then, is the status of the defendant Ellen

Geoghegan when her departure from the hospital has been demanded by the hospital?
Manifestly she becomes a trespasser. This p. 219action is brought for an injunction to
require her removal from the hospital as a trespasser. Obviously an action for damages
would be an inadequate remedy. A private hospital has a right to accept or decline any
patient. It has a moral duty to reserve its accommodations for persons who actually
need medical and hospital care and it would be a deviation from its purposes to act as a
nursing home for aged person

[Link] action is brought for an injunction to require her removal from the
hospital as a trespasser. Obviously, an action for damages would be an
inadequate remedy.

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II. Pleading
What is a pleading?
-Competitive storytelling
-Complaint from the P explaining grievance that entitles them to relief->answer by the D
to show why they should not be liable to that grievance+other initial papers in a lawsuit
-A complaint= Unverified allegation

A. Complaint
a. Rule 1: Scope and Purpose- FRCP governs procedure in civilian actions
and proceedings.

b. Rule 7: 7(a) Pleadings. Only these pleadings are allowed:

(1) a complaint;
(2) an answer to a complaint;
(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.

7(b) Motions and Other Papers.

(1) In General. A request for a court order must be made by motion.

The motion must:

(A) be in writing unless made during a hearing or trial;

(B) state with particularity the grounds for seeking the order;
and
(C) state the relief sought.

(2) Form. The rules governing captions and other matters of form in
pleadings apply to motions and other papers.

1. Attorney must sign the pleadings

2. Sanctions: If rule 11 is violated, the court can impose sanctions.
Most common sanction is attorney fees
3. Safe Harbor: A party against whom a rule motion is made has a
21- day safe harbor period in which she can withdraw or modify
the challenged pleading

c. Rule 8:

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 8(a) CLAIM FOR RELIEF. A pleading that states a claim for relief must
contain:

8(a)(1) a short and plain statement of the grounds for the court's
jurisdiction, unless the court already has jurisdiction and the claim needs
no new jurisdictional support;
8(a)(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
8(a)(3) a demand for the relief sought, which may include relief in
the alternative or different types of relief.
Elements of the Complaint:
Jurisdiction, Statement of the claim, Relief
b. 259-61, 14-16 (Bell v. Novick), FRCP 1, 8 & 12(b)
1. Bell-Infant Plaintiff, Ronald Bell, was riding in an automobile headed in
the automobile in which the infant plaintiff was riding was run into and
struck by an automobile tractor-trailer outfit owned by the Defendants,
Novick Transfer Company, Inc., the Defendant, Morris Jarrett Coburn, III,
in a careless, reckless and negligent manner
[Link] meets the requirements of Rule 8, Fed. Rules Civ. Proc., which
requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief.”

[Link] can be brief and conclusory, do not always require a detailed

account of specific facts; “general, short and plain statement”.

4. Pleading Burden: P has the initial burden of providing evidentiary fact in

their initial pleading to support the elements of their claim and show that
they are entitled to relief.
c. 261-73 (Haddle); FRCP 1, 8 & 12(b)
1. Plaintiff, Michael A. Haddle, has brought the current litigation seeking
damages under Section 1985(2) of Title 42 of the United States Code,
and state law. Presently before the Court are four [defendants’] motions
to dismiss for failure to state a claim upon which relief can be granted
under Rule 12(b)(6) of the FRCP. For the reasons stated below,
Defendants’ motions will be Granted.
Haddle is a former employee of Healthmaster Home Health Care, Inc. He
claims that he was improperly discharged from his employment by
Defendants in an attempt to deter his participation as a witness in a
Federal criminal trial. At the times relevant to this litigation, Haddle
concedes that he was an at-will employee.

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 12(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.

Plausibility Standards
-Complaints must be plausible, not just possible, i.e, does this complaint make sense?
-Conley Standard
-Notice Pleading: endorsement of brief and conclusory statements; P must state
a claim which is enough to give D Notice of charges against them.
-“As long as 8(A)(2) requirement is met, the claim is sufficient → Discovery will
then do the sorting between grounded and ungrounded claims”
○ No Longer the Standard: Imposed unfair costs on the D and promoted the filing
and discovery on meritless claims

-Twombly v. Bell Atlantic Standard: “Legal conclusions must be supported by factual

allegations which make the claim plausible on its face”

-Endorses 8(A)(2) while promoting “more than possible” idea → does not have
to make the claim more probable (not necessarily more details, more facts)

-Assessing Plausibility: Draw on judicial experience and common sense, and

weed out all legal conclusory statements
d. 273-89 (Ashcroft v. Iqbal)
1. In November 2001 agents of the FBI and Immigration and
Naturalization Service arrested him on charges of fraud in relation to
identification documents. Complaint posits that petitioners “each knew of,
condoned, and willfully and maliciously agreed to subject” respondent to
harsh conditions of confinement “as a matter of policy, solely on account
of [his] religion, race, and/or national origin and for no legitimate
penological interest.” The pleading names Ashcroft and identifies Mueller
2. FRCP 8(a)(2), a pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” To survive a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” A

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 claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable

3. Iqbal extends the formula of Twombly to all complaints, stating that

Twombly was not limited to antitrust or any other subcategory of cases.
Iqbal instructs courts facing a challenged complaint first to disregard
“conclusory” allegations, then to decide whether the remaining non-
conclusory allegations appear “plausible,” in “light of judicial experience
and common sense.”
-No plausibility in P claim that they were racially discriminated against
by D’s
-Their factual allegations showed the D “directed and approved”
detaining Muslim Americans but does not support that it was single-
handedly pointed and directed to target the P
-D were high class government officials, and likely did not even know
who the P was given the circumstances.

e. 8(c) Affirmative Defenses- It is true, but they’re not liable because of a

certain reason. Rule 8(c)- fraud, res judicata, facts within the
defendants
f. 8(e)a party may set forth multiple claims or defenses within a pleading
as long as there is a factual basis for recovery.
g. 8(d) PLEADING TO BE CONCISE AND DIRECT; ALTERNATIVE STATEMENTS;
INCONSISTENCY.
(1) In General. Each allegation must be simple, concise, and direct.
No technical form is required.
(2) Alternative Statements of a Claim or Defense. A party may set
out 2 or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in separate
ones. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many
separate claims or defenses as it has, regardless of consistency.
h. 12(a)Time to serve a Responsive Pleading
a. D has 21 days to respond to pleading, 60 days w/ waiver, 90 out
of the U.S.
b. P has 21 days to respond to counter claim

B. Allocating the Elements

1. Whichever party has the “burden” of pleading an issue must also produce evidence to
demonstrate that allegation—or lose the case. If the case is close or the evidence
bearing on the element in question difficult to locate, the placement of the pleading

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 burden may determine the outcome of the case. Rule 8(c) sets out a list of affirmative
defenses that a party responding to a pleading must assert.

a. Jones V. Bock- Jones was a prisoner in Michigan. Jones sued under 42

U.S.C. §1983. Rule 8(c) identifies a nonexhaustive list of affirmative defenses
that must be pleaded in response. The PLRA itself is not a source of a
prisoner’s claim; claims covered by the PLRA are typically brought under 42
U.S.C. §1983. The issue before the Court is whether Mr. Jones has the
responsibility to allege in his complaint that he exhausted those
administrative remedies, or whether Warden Bock must in her answer allege
that Jones failed to exhaust those remedies.
b. Whoever has the burden of pleading an element of the claim will likely also
have the burden of producing evidence to demonstrate that allegation. So the
issue lurking behind every decision about the burden of pleading is who will
ultimately have to prove the thing alleged in the pleading.

C. Responding to the Complaint- 05-15 (Zielinski); FRCP 7(a)-(b),8(b)-(d),12(a)-

(h), 55(a)

RULE 8(B): Answers to a Complaint

● “Must respond to every allegation within a complaint in short and plain terms”
● 8(B)(2)-(5): General and Specific Denials
○ Denials must respond to the substance of an allegation
○ General denial: ALL aspects of an allegation, in good faith
○ Specific denial: Not intending to deny all aspects but specifically denying
designated allegations
○ Denying in Part: where you deny an allegation in part, you must admit
what is true
○ Lacking Knowledge of Information: In the instance where a party lacks
information to adequately and truthfully deny or admit part of a complaint,
you must make it aware
○ Silence = admittance

Zielinski v. Philadelphia Piers Inc. → Violation of 8(b)(3) → by not making a specific

denial, did not allow time for P to change defendants before statute of limitations ran out
(caused P to be unaware of the facts/parties); could have arguably been done through
bad faith

RULE 8(C): Affirmative Defenses

● Response by the D to claim, “even if what P said is true, D is not liable”
● Not stated in answer → right to an affirmative defense = waived; allow P to
gather evidence
● Particular matter must be proved by the D

Jones v. Bock
○ Exhaustion of remedies is an affirmative defense that must be pleaded and
proved by the defendant

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RULE 12: Pre-Answer Motion to Dismiss
i) 12(1)(A): Serving a Responsive Pleading Generally →
(a) 21 days to file once served with the complaint and summons
(b) If timely waived service, within 60 days after the request for waiver was
sent
ii) Dismisses a claim without considering the merits = no way the D is liable
iii) To survive a motion to dismiss -- “complaint must contain sufficient factual
matter that is accepted as true, and states a claim that is plausible on its face”

RULE 12(B)(1)-(7): Presenting Defenses

1. Anything that would dismiss the P’s recovery / complaint

2. If granted 12(b) motion = trial over
3. Not granted 12(b) motion = 14 days to then serve answer the original complaint
1) Lack of subject matter jurisdiction
2) Lack of personal jurisdiction
3) Improper venue
4) Insufficient process
Form under 4(a)(1) incorrect- you need copy of complaint and summons
5) Insufficient service of process- if someone younger than 18, or they didn’t
hand it to you, they gave the dog
6) Failure to state a claim upon which relief can be granted
Applicable law must apply to your complaint = no support through the law,
then there is no remedy to be granted
Must consider all of the P’s factual allegations to be true
7) Failure to join a party under Rule 19
See rule 19(a)(1)(A),(B) for when it may be necessary / feasible to join a
new party
4. Haddle v. Garrison → A court will dismiss a claim through Rule 12(b)(6) if a plaintiff
cannot provide factual evidence that would support his claim entitles him to relief.

RULE 12(C): Judgement on the Pleadings

1. Comes after the answer to a complaint → parties pleadings reveal agreement about
relevant facts but only applicable law is in question
A. Disposes of discovery and uncovering of the facts
B. Courts must consider through a Rule 12(c) motion:
C. Any material inside the pleadings → “any written instrument attached to
the pleadings as an exhibit, materials incorporated by reference in the
pleadings, and materials that, although not incorporated by reference, are
integral to the pleadings”
○ Different than 12(b)(6) where they rely on information outside the
pleadings
RULE 12(E): Motion for a More Definite Statement
● D may motion for the P to give more detail in their initial claim

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 ● Should just motion for 12(b)(6) instead of giving them time to fix their complaint
● Less favored → conflicts with 8(a)(2) 5

RULE 12(F): Motion to Strike (Two Components)

1) Works to remove prejudiced, irrelevant, immaterial, redundant, impertinent, or
scandalous words / parts of a complaint that do not relate to the issue
2) Challenges a part of of the complaint that fails under substantive law (mini
12(b)(6)) → P can use this to strike an answer

RULE 12(G)(H): Right to Join Defenses AND Exceptions

● A party can join more than one 12 motion; failing to include in answer = waived
● 12(G)(2): Limitation on Further Motion
○ You can only file a 12(B)(2)-(5) motion once → once a court returns an
answer on your motion through one of those you have waived your right to
ever motioning for another
○ Important: exhaust all options so your clients rights are not lost
● 12(H): Exceptions to Limitations on Further Motions
● 12(H)(2): 12(b)(6)(7) can be filed anytime in any pleading allowed or ordered
through Rule 7(A), by motion under 12(c), or at trial
● 12(H)(3): 12(B)(1) can be filed at ANY point (even up until appeals at
SCOTUS), without subject matter jurisdiction a court has no authority to hear the
case and without it they are acting outside of the constitution

RULE 55(a)Default Judgement- you fail to respond you enter default judgement

[Link]

1. 15(a) Amendment as matter of course/without leave of the court

a. Always allowed within 21 days of
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.
c. If you are responding to a pleading(amended), then its 14 days

2. Beck v. Aquaslide- factors justifying denial of amending- generally granted

unless there’s bad faith

3. Relation back-an amendment relates back to the original date of the pleading,
if it arose out of the original transaction. There is a relatedness test that has to be
met.

RULE 15(C)(1): Relation Back Doctrine

1. When SOL runs on a complaint, as long as the amendment relates back it may
be added

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 ● An amendment relates back to the date of the original pleading when:
○ 15(c)(1)(a): the law that provides the applicable statute of
limitations allows relation back
○ 15(c)(1)(b): the amendment asserts a defense that arises out of
the same conduct, transaction, or occurrence set out in the original
pleading” → could one have reasonably expected this claim?

■ Timing: Time of the events included in the amendment and original are
relatively the same
■ Notice: Was the first filing sufficient to put D on notice of the impending suit
■ Facts / Evidence: Do both suits rely on the same facts / evidence? No new
discovery should be needed - should be able to defend the claim with what has
been already investigated

● 15(c)(1)(C): Changing the Party

○ Same transaction, conduct, or occurrence; 4m period
○ The party to be brought in by the amendment:
■ Received such notice of the action that it will not be prejudiced in defending the
merits
■ Knew or should have known that the action would have been brought against it
but for the mistake of the concerning popper party’s identity
○ If you purposefully leave out a party and later wish to add them, you can
not → ONLY applies when you are mistaken on the parties identity
● Moore V. Baker
○ Original claim: lack of informed consent
○ Amended request: negligent malpractice
○ Court found they were related to different timing → pre-surgery v. post
operation / during surgery
● Bonerb v. Coran
○ Original Complaint: negligent maintenance of facility
○ Amended complaint: negligent counseling claim
○ Courts allowed → sufficient notice because they would require the same
type of discovery

E. Ethical Limitations

RULE 11: Termination of Frivolous Litigation

● Regulates the way lawyers and clients conduct themselves through an
objective standard → What would a reasonable attorney think?
● Rule 11 does not regulate discovery sanctions and requests
● 11(A): Signature Requirement
○ “pleadings must be properly delivered and signed by a legal attorney”
○ Makes attorneys stop and think before making legal contentions/signing
legal documents
○ Written filed documents only
RULE 11(B): Representations to the Court:

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 ● By presenting a signed peading, written motion, or other written document, you
are assuring to the best of your ability and knowledge that:
○ 11(B)(1): Not being presented for improper purpose, to harass, cause
undue delay, or needlessly increase the cost of litigation
○ 11(B)(2): The claims, defenses, and other legal contentions are
warranted by existing law or by a non-frivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
■ permits parties from trying to make changes to the law → Don't
want to freeze the law, it is good to contest things
■ A legal argument is frivolous if a reasonable attorney would
recognize that the argument clearly has no chance of success,
such as when it is contrary to controlling law.
○ 11(B)(3): Factual contentions are warranted
■ have evidentiary support or will have opportunity for evidentiary
support after a reasonable opportunity through discovery
○ 11(B)(4): Denials of factual contentions are warranted
■ warranted on the evidence or are reasonably based on belief or a
lack of information.

RULE 11(C): Sanctions

● Purpose of Sanctions → Deterrence from behavior
○ Court’s do not impose monetary sanctions easily; severe behavior
○ Monetary Sanctions are payable to the court
○ 28 USC § 1927—Anyone that multiplies proceedings unreasonably may
be required to satisfy excess costs, expenses, and attorneys’ fees
reasonably incurred
● Who: Person/Party/Law Firm who employs the attorney
○ The attorney, client, or both may be subject to Rule 11 violations and
then have to pay sanctions → “attorneys are to be suspicious of their
client’s claims and research”

RULE 11(C)(2): Motioning for Sanctions

● Step One: Serve a Motion for a Sanction
○ Must be made separate from any other motion and include the actual
specific conduct that violates rule 11(b)(2)
○ Before filing Rule 11 violation motion with the court it must be served /
communicated to other party through Rule 5 (must be formal)
● Step Two: Safe Harbor
○ One violating party is notified → “Safe harbor” period of 21 days to
respond or amend the violation
○ A party accused of violating must 1) amend the claim and remove the
violation or 2) keep the claim but not proceed with it at trial
● Step Three: If No Withdrawal or Amending Occurs
○ Courts will then determine if the designation of sanctions is necessary
11(C)(3): Court initiates a Rule 11 violation notification

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 ○ No safe harbor is given → must immediately respond and “show cause”
as to why you should not be sanctioned

Designation of the Proper Sanction: Monetary v. Non-Monetary

● Is the conduct willful or negligent?
● Is this a patterned behavior or a single time?
● Does the violation or conduct have an effect on the entire case?
● By this conduct, was there an intent to injure a party?
● Is this behavior apparent in other litigation?
● Was there a loss of time or incurred expense due to this behavior?
● Is the person at question trained in law?
● What amount of money should be imposed in the sanction, if any?
● Can this behavior instead be deterred?

RULE 11(C)(5): Limitation on Monetary Sanctions

● Cannot be imposed on represented party for attorney violating 11(b)(2)
● Can’t be imposed unless court issued show-cause order (11(c)(3)—show why
conduct hasn’t violated 11(b)) before voluntary dismissal or settlement
● Christian v. Mattel → Sanctions through 11 can not be intertwined with non-rule
11 misconduct ; ONLY include / apply to written documents submitted to the court
○ Misconduct through U.S.C. 1927 → unreasonable misconduct
● Walker v. Northwest Corp→ Monetary Sanctions imposed
○ Monetary Sanctions were imposed because the court found this to be an
example where deterrence itself would not be enough to revert repeated
behavior

Non-Monetary Sanctions
● Striking paper, censure, issuing apologies, referral to disciplinary authorities
● Bridges v. Diesel Services→ Sanction through deterrence
○ May punish an attorney who files a pleading with no basis to believe that
the favorable facts or law will emerge as the case progresses (frivolous)
○ Court determined the lawyer acted in good faith, and that instead of a
sanction it would be more of a “learning experience”

28 U.S. Code § 1927 - Counsel’s liability for excessive costs

 Any attorney or other person admitted to conduct cases in any court of the
United States or any Territory thereof who so multiplies the proceedings in
any case unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.

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III. Discovery

A. Modern Discovery

RULE 26(B): Discovery Scope and Limitations

● 26(B)(1): In General → “Parties may obtain discovery regarding any non-
privileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case”
○ Relevance: Imprecise concept - what may be relevant in one case may
not be in another
○ Favale v. Roman Catholic Diocese of Bridgeport → “A party must
demonstrate that requested information is relevant to a claim or defense in
order to prevail on a motion to compel”
■ in this instance, requests for records on anger management was
not relevant to the sexual assault claim
○ Proportionality: considers the importance of issues at stake in the action,
amount in controversy, parties relevant access to information, parties
resources, importance indiscovery for resolving, burdens/expenses (do
they outweigh the benefit?)
○ Cerrato v. Nutribullet → A request may be relevant, but unproportional to
the needs of the case
■ Here the requests for every single accident report with no
limitations was unproportional → would take so much time and was
not necessary to prove their claim; 26(B)(2)(C) issue = outside the
scope

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 ○ Wagoner v. Lewis Gale Medical Center, LLC. → Relevant information
may be unproportional when it would impose excessive burden or cost on
a party to deliver it;
■ here however, the courts compelled the hardships in acquiring
the documents was by choice and fault of the defending party, they
had chose a difficult sever and should not prejudice the P by their
own faulty choice in system
● 26(B)(2): Limitations on Frequency and Extent
○ A) When permitted: court may alter limitations on discovery rules if
allowed
○ B) Specific Limitations on ESI’s: undue burden and cost to produce ESI
→ need not present it to a party in response to request
○ C) When required: Discovery MUST be limited when →
■ Discovery sought is unreasonably cumulative or duplicative
■ Party seeking discovery has had ample opportunity to obtain the
information on their own
■ Proposed discovery is outside the scope of 26(B)(1)
a. Rule 34: producing Documents Requested for Discovery
i. A party may serve another party a request for documents within the
scope of 26(B)
ii. 34(B)(1)(A)-(C): Can be broad but also must be reasonable and
specific
iii. 34(B)(2): Responses and Objections
iv. (A): Time to Respond → party must respond to the request 30 days
after being served (or within 30 days after the conference per
expedited rule)
v. (C) : Objections→ Must state the responsive information being
withheld on the basis for the particular objection (specify the part
and permit the rest)
vi. (E): Producing ESI’s→ When producing these documents they
must be produced how they are normally kept throughout the usual
course of business or must be organized and labeled to fit the
request; no specification = production in ordinary maintenance form
or in a reasonably usable form; no need for duplicative forms
b. 34(C) and 45: Production of Information from Non-Parties
c. 34(c): A nonparty may be compelled to produce documents and
information as per rule

B. Tools of Discovery

RULE 26(A)(1): Required Initial Disclosures

● A party does not have to initially disclose anything that may implicate them / not
work in their favor → Only relevant information that will help you
○ Only must initially disclose information you plan / anticipate to use
● 26(A)(1)(A)(i)-(iv): A party must initially disclose, without awaiting a discovery
request:

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 ○ Name (if known), address, and number of any individual likely to have
information and the subjects of that information
○ Copy of all documents, ESI’s, and tangibles
○ Computation of each category of damages
○ Any insurance agreement as it relates
● Exceptions to these → when it may be used for impeachment purposes = no
initial disclosure
● 26(A)(1)(C): Timing → must make initial disclosures at or within 14 days after
the parties Rule 26f conference unless stipulated otherwise by court order
○ Allows other parties to know what each other has → start compiling
defense
● 26(A)(2): Disclosure of Expert Testimony → Additionally, parties must disclose
to other parties the identity of any witness it may use at trial to present evidence
○ 26(A)(2)(D) → Time to Disclose Expert Testimony
○ 37(c): Additional Witness
■ party not allowed to use info or witness if not identified as
required by 26(a)/(e) unless omission was substantially justified or
harmless
● After the Initial Disclosures
○ 26(E): Supplementing Disclosures and Responses → must continue to
supplement/correct disclosed info in timely manner from when that party may
learn that the information in inaccurate / incorrect or as ordered by the court

a. 45:Nonparties can only be asked for depositions and requests for

productions to obtain sought information
b. 45: Nonparties can be served with subpoena to appear in court

RULE 26(B)(3): Trial Preparation Material

● “A party may not obtain through discovery documents and tangible things which were
prepared in anticipation of litigation or discovery” → Exceptions:
○ Discoverable otherwise through 26(B)(1)
○ Party shows they have a substantial need for the materials and cannot, without
undue hardship obtain the substantial equivalent
● 26(B)(3)(B): Protection Against Disclosure → protection must extend to mental
Impressions,conclusions, opinions, or legal theories of a party’s attorney
○ Opinion Work Product → Higher standard of protection in WPP
● Hickman v. Taylor → Work Product Protection
○ Extended protections to even intangible things not included within 26(B)(3)
○ Fact V. Opinion
○ Purpose: What is WPP?
■ Privacy interest
■ Intellectual Property: should not have to share hard work / ideas you did
with someone else
■ Combats Free Riding: demoralizing in your profession to give away
your work to another person, one individual puts in all of the work for
another to take and run with

17
 ■ Encourage Sharp Practices: What if the information being shared is
wrong in order to deceive the other party who gains this information?
Might not put down true facts or all information
■ Precision: Sometimes individuals do work, do not write it down
immediately, and then will later jot down what they remember; not always
true and could be doing a disservice to opposing party (History)
○ Obtaining Work Product Production → Same as 26(B)(3) Exceptions
○ Claiming Work Product Protection → Prepared in anticipation of trial? = WP
● 26(B)(3)(C): Previous Statements
○ Parties can always, without permission, obtain their own personal statements
○ Witness statements can be helpful - get a third party to get theirs for you
RULE 26(B)(5): Claiming Privilege or Protecting Trial Preparation Materials
● 26(B)(5)(A): Information Withheld → When a party withholds information on the basis
that it is privileged or protected, they must expressly claim that privilege and then
describe the nature of the information being withheld so that the other party can make a
general assessment
○ Can not just refuse to answer a question / answer a request for discovery on
the grounds that it is privileged
● 26(B)(5)(B): Information Produced → where information disclosed may be subject to
protection / privilege → the party must promptly return the information and not disclose
the information until the issue is resolved; “Claw Back”

Rule 26(F)-Purpose of Discovery Plan/Conference Plan is to decide what evidence

they’re looking for, what story you and your enemy want to tell.
i. 26(F)(1) Conference timing is 21 as soon as practicable or 21 days
ii. 26(F)(3) Discovery Plan-States parties views and proposals
1. Timing, forms, requirements
2. Subjects on which discovery may be needed
3. Any issues about disclosure
4. issues on claims of privileges or protections
5. Changes on limitations to discovery
26(F)(4): Expedited Schedule → where it may be necessary to comply with a Rule
16(B) expedited schedule, discovery plans and party conferences may be sped up

RULE 30: Oral Depositions

● Depositions are taken privately before trial with no judge present
● 30A): When a Deposition May Occur

○ 1) Without Leave: Typically, a party can orally question any person including a
party without leave from the court (except as provided in 30(a)(2)); Non-parties
may be subpoenaed without courts leave
○ 2) With Leave:
■ more than 10 depositions
■ if a person is already deposed
■ if the party wants deposition before time specified in 26(d),
■ or the deponent is in prison.
● 30(B): Notice of the Deposition→ Must be given to the person a party wishes to
depose
○ (1): must state the time, place, and (if known) the deponents address and
name; where name is unknown, a general description must be given

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 ○ (6): Notice or Subpoena to a Corporation → must designate a knowledgeable
person to be deposed on their behalf
● 30(C)(2)(3): Objections
○ Objections are documented and noted on the record but the answer still follows
○ judge is not present at the depo a so review and note the answer to the
objection before it goes to the jury
○ Must be stated conclusively (non-suggestive and concise); Saying, “I object” is
not enough → The judge needs grounds to review the objection
○ 3 Circumstances for an Objection→ doesn’t have to be your clients, can make
objections for anyone being deposed
■ Privileged information
■ Enforced limitation ordered by the court
■ Stop / terminate deposition (Rule 30D(3) → Court will rule on this)

RULE 31: Written Depositions

● Though cheaper, not as effective
○ no follow up questions can be asked, no body language or tone can be
examined
○ strictly on paper answers sent back from the responding party and unlike
interrogatories, respondent’s are not required to specifically answer the questions
● 31(A): Leave of court, notice, service on parties, requirements, etc. is the same
as it is for oral Depositions

RULE 32: Using Depositions in Court Proceedings

● 32(A)(1): All or part of a deposition may be used against a party on these conditions

○ Party was present or represented at the taking of the deposition or had

reasonable notice of it
○ It is used to the extent it would be admissible under Evidence Rules if the
deponent were present and testifying
○ Or allowed through 32(a)(2)-(8)

RULE 33: Interrogatories

● 33(A)(1): Number → Unless stipulated / ordered otherwise a party may serve no more
than 25 written interrogatories (including subparts)
○ Can ask for more questions / interrogatories to be granted
● 33(A)(2): Scope → Can relate to anything that can be inquired into under 26(B)
● 33(B): Answers and Objections
○ (1): CANNOT be served on nonparties
○ (2): Must serve answers and objections 30 days after being served with the
interrogatories
○ (3): Answers (to the extent it is not objected to) must include specifics and
details → answered fully and under oath
○ (4): Objections must be specific—if not stated in a timely fashion—waived
■ a party can motion to compel that party to respond through Rule 37(A)
(3)(B)
● Beneficial: forces the other side to do your work for you, cheap, but unlike a deposition
you can not ask follow up questions

RULE 35: Physical and Mental Evaluations

● 35(a)(2): Motion and Notice

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 ○ The order must be made only on motion for good cause and on notice to all
parties and the person to be examined; and
○ Must specify the time, place, manner, conditions, and scope of examination as well as the
person(s) who will perform it
● Waives privilege on medical documents related to this issue
● Mental and physical condition must actually be in controversy → Writ of mandamus to stop
evaluation may be order if it is too invasion

RULE 36: Request for Admission

a. Where a party wishes to dispose of some discovery time and costs, they
may request an admission from opposing party if evidence deems it
proper
b. 36(A)(1):Scope → Party may request the truth of any matters within the
scope of 26(b)(1) as it relates to the facts, the application of law to the
fact, or opinions about either, and the genuineness of any described
documents
c. 36(A)(3),(4): Time to Respond and Answer
d. A matter is admitted if not responded to within 30 days after being served
e. The answer, if not admitting, must specifically deny or state in detail why
the party can not truthfully admit or deny the issue

c. 36(B): Effect of admission Conclusively established unless the court

permits the admission to be withdrawn or amended
d. The admissions made through this rule CAN NOT work to go against the
admitting party on any other proceeding
● 37(C)(2): Failure to Admit
e. If a party refuses to admit and later is proven to be true - they may be
required to pay for the time and discovery it took a party to uncover this
without them just admitting
RULE 37: Motion to Compel
● General Rule: When a party has continuously refused to produce seemingly
relevant, proportional, non-privileged information you may motion to compel them
to produce it with the courts
● Motion must conclude that the parties have in good faith conferred or
attempted to confer with the other party to resolve the issue without the courts
presence
○ Notice must be given to other parties
○ When a court compels them to answer and they refuse, then sanctions
and serious punishments will be admitted
● 37(A)(3): Specific Motions
○ Compel Disclosure (rule 26a failure)
○ Compel Discovery
● Parties may disagree over what is discoverable
● Withholding information, claiming privileges/protections, objections, meritless
claims, etc.

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 ● 37(B): Failure to Comply with Court Order → Continuous failure to comply =
sanctions can be motioned for issue/ to compel discovery
● 37(C): Failure to Disclose or Supplement
● 37(D): Failure to Attend / Comply
○ Court may order sanctions for failing to appear / cooperate in discovery
at a deposition, answer interrogatories, or respond for a request for
inspection
● 37(E): Failure to Preserve ESI’s
● 37(F): Failure to Participate in Framing a Discovery Plan
●Spoliation: Obligations Before Trial
● Destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation
● Parties Common Law Duty = Preserve Relevant Evidence
● Litigation Hold → Once a party is given awareness of litigation / potential for
litigation a litigation hold should be placed on all relevant documents relating to
the case
○ Counsel needs to become familiar with party’s document retention
policies and data retention architecture and
○ Communicate with key players (understand how info is stored)
■ Communication with entire company is not always feasible
○ Must take reasonable steps to see relevant sources of info are located
○ Continuing duty to supplement disclosures
■ Ensure discoverable information is not lost
■ “Duty to preserve” → ongoing; lost or destroyed, it is not
preserved
○ Ensure compliance with preserving obligation
■ Issue litigation hold, communicate with key players, and
backup /preserve electronic information
● Party seeking sanction for spoliation of evidence must prove:
○ The party having control over the evidence had an obligation to preserve
it at the time it was destroyed
○ That records were destroyed with a “culpable state of mind” (bad faith)
○ The destroyed evidence was relevant to the party’s claim or defense
such that a reasonably trier of fact could not find it would support the claim
● Zubulake v. UBS Warburg LLP. → Failure to properly secure / put holds on
information once litigation was expected → the cost of producing electronic data
should only be shifted to the requesting party if the discovery poses an “undue
burden or expense.”
● Mueller v. Swift→ To prove “spoliation of evidence” there must be proof of bad
faith on the party accused

C. Scope of Discovery

RULE 26(G): Rule 11 for discovery

● Effect of a signature on disclosures and discovery requests

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 ● 26(G)(1)(B): Signatures → Applies to “request, response, or objection”; “Good Faith
Standard”
● 26(G)(2): Failure to Sign Discovery Request → Party does not have to respond
RULE 26(C): Protection Orders
● Discovery Disputes: May move for a protective order against discovery
○ motion must provide the party has attempted to confer in good faith to resolve
the dispute without court action
● Protection against requests that are “non relevant, annoying, embarrassing,
oppression, or cause an undue burden or expense”
● 26(C)(1)(A)-(H): Protective Orders that may be issued through the court….
● Rengifo v. Erevos Enterprises, Inc. → protection order may be issued to prevent
certain matters from being inquired into to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.
○ Information may be relevant and proportional to the claim but the interests in
protecting the P from threat of deportation is much greater; employees have a
right to enforce their rights and allowing this disclosure would be unduly
burdensome

[Link] 366-71 (Thompson, Chiquita)

Thompson-> Rule of Law Under FRCP 26(b)(4), facts or opinions held by an expert
retained in anticipation of litigation may be discovered on a party’s showing of
exceptional circumstances warranting disclosure due to the impracticability of obtaining
facts or opinions on the same subject by other means

 26 (b)(4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any
person who has been identified as an expert whose opinions may be
presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the
deposition may be conducted only after the report is provided.
(B) Trial-Preparation Protection for Draft Reports or
Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or
disclosure required under Rule 26(a)(2), regardless of the form in which
the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's
Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect
communications between the party's attorney and any witness required to
provide a report under Rule 26(a)(2)(B), regardless of the form of the
communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that
the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that
the expert relied on in forming the opinions to be expressed.

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 (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not,
by Interrogatories or deposition, discover facts known or opinions held by an
expert who has been retained or specially employed by another party in
anticipation of litigation or to prepare for trial and who is not expected to be
called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which, it is impracticable
for the party to obtain facts or opinions on the same subject by other
means.
[Link] Compliance 371-80 (Swift, Abbott); FRCP 30(d) & 37
● Rule 30(D): Limitations of an Oral Depo
○ 30(D)(1) → Duration: Limited to 1-7hr day
■ Court can impose sanctions on one that impedes, delays, or frustrates
examination.
■ Court can also allow more time for deposition because of this
(consistent with 26(b)(1)-(2))
○ 30(D)(3): Motion to Terminate or Limit
■ party may move to terminate or limit if conducted in bad faith or in a manner
that unreasonably annoys, embarrasses, or oppresses the deponent or party.
■ Deposition suspended for time necessary to get order
● Security Bank of Sioux City v. Abbott Laboratories → Meritless objections to a
deposition may be subject to sanctions

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IV. Resolution Without Trial

A. The Pressure to Choose Adjudication or the Alternative 385-91 (Peralta);

FRCP 41& 55
RULE 41: Dismissal of Actions
(a) Voluntary Dismissal(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any
applicable federal statute, the plaintiff may dismiss an action without a court
order by filing:
(i) a notice of dismissal before the opposing party serves either an answer
or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is
without prejudice. But if the plaintiff previously dismissed any federal- or state-
court action based on or including the same claim, a notice of dismissal operates
as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action
may be dismissed at the plaintiff's request only by court order, on terms
that the court considers proper. If a defendant has pleaded a counterclaim
before being served with the plaintiff's motion to dismiss, the action may
be dismissed over the defendant's objection only if the counterclaim can
remain pending for independent adjudication. Unless the order states
otherwise, a dismissal under this paragraph (2) is without prejudice.
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against
it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b)
and any dismissal not under this rule—except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19—operates as an adjudication on the
merits.
(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a
dismissal of any counterclaim, crossclaim, or third-party claim.

RULE 55: Default Judgement

● 55(A): Entering Default → Courts will enter default judgement if a party has
failed to plea or defend against a judgement for affirmative relief is sought, clerk
must enter default→ “silence on a complaint”
● Two Parts: 1) Find liability 2) Finding damages due for that liability
● 55(B): Entering the Judgement
○ (1) By the Clerk: If the P claim is for a sum certain or a sum that can be
made certain by computation → the clerk, per the P request with an
affidavit showing the amount due, judgement for that amount must be
entered
○ (2): By the Court: In all other cases (not sum certain) must be entered by
the court

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 ■ Party or representative must be present at the time of the default
judgement and must be given written notice 7 days before the
hearing
B. Adjudication without Trial; Summary Judgement 416-24 (Celotex); FRCP 56
29-33 (Houchens) & 424-34 (Tolan, Scott); FRCP 56
RULE 56: Summary Judgement
● 56(A): Motion for SJ → Allows for judgement without trial; Moving party must
show there is no genuine dispute of material fact and they are entitled to
judgement as a matter of law
○ Material Facts: affect the outcome so much that we can not determine
which side will win unless we absolve any uncertainty about it
○ Genuine Dispute: NMP must show that the real evidence on the record
creates a genuine, material factual dispute, in that the evidence gives rise that
“reasonable minds could differ” about the truth, based on the evidence.
■ Not a genuine dispute just because the NMP believes it is
● Tolan v. Cotton → Evidence is to be viewed in light most favorable to the non-
moving party
○ P wrongfully shot by an officer. D moved for summary judgement saying
officers have the right to use deadly force if they hold reasonable belief that
the suspect presented an “immediate threat to safety.”
○ Denied—must view evidence in light most favorable to nonmovant—not the
judge's job to determine credibility of facts/witnesses → must be presented to
the jury
○ In trial court: they looked at the evidence most favorable to MP - not
allowed; conflicting evidence testimonies with equal possible outcomes
● Houchens v. American Home Assurance Co. → after adequate time for
discovery, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which that party will
bear the burden of proof at trial = grant SJ
○ Wife could not provide sufficient evidence on the record that could prove
her husband's death to be an accident which would entitle her to the life
insurance policy
● 56(B): Time to File a Motion→ Motions allowed any time until 30 days after
discovery ends
● 56(C)(1): Supporting Factual Positions → Moving party must support their
claim by:
○ Citing to particular materials in the record (depos, documents, ESI’s,
affidavits, or declarations, stipulations (including those made for purposes
of motion only), admissions, interrogatories, etc.)
○ Show that the adverse party can not produce admissible evidence to
support the fact
○ No witnesses will testify, and no jury is present
○ “Witness credibility issues will always be decided on by the jury”
● 56(C)(4): Requirements / Contents of an Affidavit

25
 ○ Common written document where an affiant swears under oath that the
statements are true → drafted by a lawyer who reviews it, signs it, and
attests that the statements are true
○ Inadmissible Affidavits: Hearsay, lack of evidence to support a stated
fact,
Celotex Corp v. Catrett → Burden Shifting Framework
● Overturned Adickes standard which placed the burden on moving party (D
would have to ‘foreclose the possibility of the P prevailing)
● Celotex broadened the use of SJ “Summary Judgement Burden aligns with trial
burden” → (Movant just has to show that the NMP has failed to meet their
burden, not foreclosing the possibility that they could meet that burden)
● Pleading Burden → Initial
○ 1) Moving party initially shows that there is no factual evidence on the
record that would support finding a genuine dispute of material fact → No
case
■ Negate crucial issue of fact and show absence of proof of fact by
opposing party
○ 2) Burden shifts to the NMP to show / provide evidence that there is factual
dispute
■ Must point to enough evidence that could support “reasonable minds
could differ” about the material facts where the jury could draw a
“minimally reasonable inference in their favor”
■ Evidence could contradict moving parties or offer an explanation of the
moving parties evidence presented → must be material/real to the current
issue at hand \and point to beyond the content of the pleadings
Bias v. Advantage International Corp. → Standard of Negating- application of 56(C)(1)
(A)
○ Moving party showed that NMP could not provide disputed fact → they
could have provided more accurate evidence but they didn’t

● 56(D): Requesting More Time

Request more time through an affidavit or declaration explaining why
○ If you need more time to justify your evidence, a court may:

■ defer considering the motion or deny it;

■ allow time to obtain affidavits or declarations or to take discovery;
OR
■ issue any other appropriate order.
○ No one can be shooed out from a claim just because summary
judgement was filed in early stages of discovery where you have not
gathered enough evidence

26
27
V. The Trier and the Trial

A. Choosing and Challenging Judges

Judge Recusal: Generally

● Judges will recuse themselves if the need arises
● Issues of recusal will arise when it should have occurred → “Constitutional right to a
fair judge”
● Judicial Disciplinary: file a complaint and it will be investigated
28 U.S.C. § 144: Peremptory Recusal
● Party to a proceeding may file a timely and sufficient affidavit (conclusory terms) to
show that a judge has prejudice against you or your party = issue new judge to the case
○ Actual proof of evidence need not be shown
○ Factual allegation and reasons for belief that the bias or prejudice exists
● Should not be filed less than ten days before the beginning of the term in which the
proceeding is to be heard unless for good cause
● Some statutes permit this to be a way in which a judge may be recused for no reason
at all
28 U.S.C. § 455: Required Recusal
● 455(A): required to recuse themselves when their impartiality may be reasonably
questioned
○ Claims through: poor practice, bad reputation, etc.
○ Harder to claim and prove this to be true
● 455(B): Required recusal if there is ANY underlying, invested interest in the case
○ Violation of 455(B) → you’re out; there is absolutely no right to hear it
○ If both parties agree that they want to ignore the 455(B) violation and allow the
judge to sit anyways → doesn’t matter - they must be recused
○ Why? → Impartiality undoubtedly exists
● 455(B)(1-5): Factors Requiring Strict Mandatory Recusal
○ Personal bias or prejudice concerning a party
■ or personal knowledge of disputed evidentiary facts concerning the
proceeding
○ Where in previous private practice he served as a lawyer in the matter at
controversy, or material witness to the controversy
○ Where he had served in governmental employment and in such capacity
participated as counsel, advisor or material witness
■ or expressed an opinion concerning the merits of the particular case in
controversy
○ Where they have financial interest (or a family member has financial interest) in
the outcome of the case
○ 3 degrees of a relationship to one of the parties (spouse, child, grandparent
uncle, etc.) → no familial ties
● 455(E): Waiving Recusal → Judge may waive recusal for the above things if there is a
submitted,
full disclosure on the record of the basis for disqualification
Caperton v. A.t. Massey Coal Co., Inc. → Campaign donations can contribute to bias for
recusal
○ “A judge is biased and should recuse himself when a contributor’s influence on
his election is so substantial that it would offer a possible temptation to the
average judge to lead him not to be impartial.”

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 B. Sharing Power with a Jury
7th Amendment: 1791 Standard
● “Suits at common law, shall be preserved” → 1791 Bill of Rights 7th
amendment
● Courts of Common Writs (legal) → entitled to a jury
○ Remedies: money damages → Debt, trespass, covenants, enactment,
etc.
● Courts of Chancery (equitable) → Substantive areas not requiring a jury;
harder portions of law where some lawful education and understanding is needed
to properly assess the facts and deliver justice
○ Remedies: Injunctions, specific performance, accountings and
procedural devices, etc. ● Beacon Theatres v. Westover
○ When legal and equitable issues exist in the same trial, the legal issues
must be first resolved by a jury before the equitable issues may be
resolved by the judge.
○ Can be brought together in the same case → separate resolutions
RULE 38: Right to Trial by Jury
● 38(A): 7th Amendment Right Preserved
● 38(B): Demand → on any triangle jury issue → party may demand a jury trial by
1)serving written demand on other parties no later than 14 days after the last
pleading 2) through Rule 5(d)
○ Must ask for it even if you have a right to one (can not ask in courts of equity)
RULE 39: Governs Jury Trial
●39(B): When no Demand is Made → Courts may instruct a trial by jury
● If someone misses the deadline, you can request to be granted a jury trial
§1870: Peremptory Jury Challenges
○ Each party gets three challenges to remove a juror for any reason
○ Exceptions: Can not remove a juror for race or gender alone
○ Batson Challenge → If a party or a juror believes that they were removed
because of their race then the party who moved to remove would have to provide
race neutral rationale for removal of the juror
○ JEB Case → follows the same rationale that is laid out in the Batson challenge
but instead replaces the challenge with gender; Must respond with a gender
neutral rationale
● “For Cause” Challenges → Unlimited; must provide proof
§1861: Declaration of Policy: “fair cross section of community→ All citizens shall have
opportunity to be considered and obligated to serve

RULE 47: Selecting Potential Jurors

● Create a big jury pool of potential jurors (through looking at voter registration,
demographics, etc.
● Names then pulled from that pool at random (way more than they need to leave room
for potential unavailable jurors)
● Voir Dire: Identification of Biased Jurors

Voir Dire: Challenges

29
 ● Questions for Jurors → Getting an understanding on if they have any prejudice, bias,
relation, or knowledge on the party that would be unfavorable

[Link] Pretrial 458-61 (Monfore); FRCP 16

RULE 16: Pre-Trial Conferences

● 16(A): Purposes of a Pre-Trial Conference
● 16(B)(1): Scheduling → When necessary/required a judge must issue a scheduling
order after a) receiving parties report under 26(f) or b) after consulting with the parties
attorneys and any unrepresented parties at a scheduling conference
○ (2): Issued as soon as practicable; when there is good cause for delay, then it
must be entered 90 days after D was served or 60 days after D has appeared
● 16(C)(1)(2): Attendance and Matters for Consideration → What is to be discussed?
● 16(F): Sanctions → sanctions may be issued when a party fails to appear at a
scheduling or other pre-trial conference, is substantially unprepared to participate - or
does not participate in good faith, fails to obey the order or other pre-trial order
○ Reasonable expenses: other parties attorney’s fees incurred from
noncompliance, etc.

 Monfore-> “While pretrial orders entered earlier in the life of a case often
deal with interstitial questions like discovery staging and motions practice
and are relatively easy to amend as a result, a final pretrial order focused
on formulating a plan for an impending trial may be amended “only to
prevent manifest injustice.” Fed. R. Civ. P. 16(e)”
 Modern procedure is flexible, but at some point the flexibility ends: The parties
are locked into their respective stories. And they will be stopped at trial if they try
to tell a story different from the one they have identified at the pretrial conference.

D. Judges Guiding Juries 461-64; FRCP 48 & 51

RULE 48: Number of Jurors

● 48(A): jury must begin with at least 6 and no more than 12 members and must all be required
to participate in the verdict unless limited through a challenge
● 48(B): Verdict must be unanimous and returned by at least 6 members
● 48(C): Polling → If lack of unanimity is shown then may be order for further deliberation
RULE 51: Jury Instruction
● Discussion of requests, objections, and instructions
● How to assign error if it presents itself
● 51(d): Plain Error → a court may consider a plain error in the jury instructions that affects a
party’s substantial rights, even if the parties did not properly preserve the error.

[Link] Controlling Juries: Judgement as a matter of Law 464-71 (Conte)

& 33-38 (Norton); FRCP 50, 471-75 (Unitherm); FRCP 50

RULE 50(A): Judgement as a Matter of Law

● 50(a)(1): General → A court may grant JML on any claim or defense as long as :
○ NMP has been fully heard on the issue

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 ○ A reasonable jury would not have legally sufficient evidentiary basis to find for
the moving party on that issue
● Movant MUST specify the judgment sought and present the law / facts which would
entitle them to JML
● Judge MUST draw all reasonable factual inferences in light most favorable to the non-
moving party and resolve all disputes in favor of the NMP
○ A judge MUST NOT evaluate a witnesses credibility or weigh the evidence
Norton v. Snapper Power Equipment → grant JML only where the evidence so strongly
and so favorably points in favor of the moving party that reasonable people could not
arrive at a contrary verdict EVEN when looked in light most favorable to NMP
● 50(a)(2): Deadline→ Parties can motion for judgement as a matter of law during the
trial process at any point up until the verdict is submitted to be decided on by the jury
○ Failure to make this motion may remove a parties right to motion for RJMOL,
challenge the sufficiency of evidence on appeal (without need for new trial),
Pennsylvania Railroad v. Chamberlain → Judge can not determine credibility of a witness;
question of fact should be submitted to the jury
○ Speculations should not be submitted to the jury = fact based evidence only
○ “A plaintiff in a federal civil case does not offer sufficient evidence to go to the
jury if that evidence allows for equal inferences that are inconsistent concerning a
critical fact in the plaintiff’s case.” → mere witness inference is not sufficient (I
would disagree with this holding, jury is to decide on witness credibility)
● Ried v. San Pedro → Must be NO legally sufficient way a jury could find for a non-
movant
○ On issues where there is a 50/50 possibility that either party could be at fault, to claim
JML you must push the evidence over the line in the slightest to be in your favor
○ Make it 51/49 → “the evidence proves mostly that I am not at fault and therefore no
reasonable jury would be able to find for my opponent”
RULE 50(B): Renewed Judgement as a Matter of Law and Alternative Motion for New Trial
● 50(B) → Where a parties 50(a) motion was denied, they may motion for RJML or
alternatively/jointly request for a new trial under Rule 59
○ Can only file this if you have filed a previous 50(a)
○ Must be filed no later than 28 days after the judgement
○ Must base renewed motion in the same grounds as your previous motion (no
new issues /new elements of a claim / arguments can be raised)
● A party should be granted RJML when, “a reasonable jury could not have reached a
verdict for the opposing party because the evidence for the movant was overwhelming”
○ Must review entire record - even new evidence presented in trial
● 50(C)(1): Granting the New Motion; Conditional Ruling on a Motion for New
trial→ If a court grants RJML, must conditionally rule on allowing a new trial in
case RJML is reversed or vacated by appeals court
○ Must state the grounds for conditionally granting or denying new trial /
RJML
○ Must be a serious defect in the evidence of the winning party to grant
either - can not just allow a conditional new trial because the judge wants
to
○ Essentially is saying = “if I am wrong about RJML, then a new trial
needs to be granted to reconsider the evidence between the parties”
the weight of the evidence simply because he would have come to a
different conclusion.

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 ● 50(D): if a court grants your opponent RJML, you have 28 days to motion for
new trial after the final entry of the judgement (fight back on the new motion)
● Unitherm v. Swift → a court of appeals may not review a verdict for sufficiency
of the evidence and order a new trial unless the party moved the district court for
post verdict relief through

D. Judges Undoing Verdicts: the New trial 476-82 (Lind); FRCP 59

RULE 59: New Trial
● 59(A)(1): A court may, on motion, grant a new trial on all or some issues and to any
party when:
○ After jury trial or non-jury trial for any reason where new trial has been granted
in past
● 59(B) Time: must be done within 28 days after entry of the judgement
● New trial: motion for a new trial need not be preceded by a prejudgment or pre-verdict
motion seeking the same relief. In other words, there is no pre-verdict motion for a new
trial
● 59(D): Judge’s motion alone can grant New Trial (and can raise these issues yourself)
○ Flawed procedure (evidence, improper conduct, juror misconduct)
■ Where the outcome of the case was due to an error in how the trial was
conducted -- evidence provides proof and shows
○ Flawed verdict (verdict goes against the weight of the evidence)
■ Not RJML, but something has gone wrong with weighing the relevant
evidence → “second try”
● Conditional New Trials: Excessive Damages:
○ No reasonable jury could have found for that amount; grant new trial OR one of
these:
○ Remittitur: Reduced amount of damages in exchange for no new trial (likely will
accept)
○ Additur: Increasing damages in settlement for no new trial (federal courts can
not do this because it is unconstitutional)
○ 59(e): Motion to Alter or Amend → motions for these must be filed no later than
28 days after the entry of the judgement (Example: when there is a 500,000
verdict on a 1 million dollar contract claim, damages may need altered)

Appealing RJML and New Trial Motions

● Motioning for RJML 50(B) and Conditional New Trial 50(c) with Final Judgement Rule? → if
RJML is not granted, may still have potential for a new trial
Lind v. Schenley Industries → A judge should not set aside the jury verdict as contrary
to

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33
VI. Appeal

40-43 (Reise); 491-97 (skim) 497-503 (Wetzel); 28 U.S.C. § 1291,

1292(a)&(b), FRCP 54(b)

In General:
● Reverse decision of trial courts only if → they were in error and that error is in record
of the trial court proceedings, it is an error that the appellant pointed out, and the error is
harmful
● Settlements = no right to appeal
● Must have actually lost to appeal
● Damages fully satisfied = no right to appeal
● Lost to Punatives = no right to appeal

28 U.S.C. § 1291: Final Judgement Rule

● Appellate courts can only hear appeals from final decisions of the lower court

Exceptions to Final Judgement

28 U.S.C. § 1292: Limitations on Final Judgement
● 1292: Interlocutory Appeals: Allows an appeal on some motions once denied
● 1292(a): Injunctions → Allows for appeals of non-final judgements; judicial order which
restrains another person from invading or threatening the legal right of another or that
compels a person from carrying out a specific act
● 1292(B): Allowing an Injunction - Dual Certification for Otherwise Unappealable
○ District court certifies:
■ Controlling question of law
■ Substantial ground for difference of opinion
■ Immediate appeal will materially advance the termination of litigation
○ AND Court of Appeals Accepts: (Must both agree)

RULE 54(B): Multiple Parties / Claims

● Exception to the final judgement rule
● Where there is multiple claims / parties, may enter judgement for one or more of the
different claims / parties
● Multiple parties / Claims + DC direct entry + No just reason for delaying the judgement
= 54(B) motion and that partial entry may be appeals
● Liberty Insurance Co. v. Wetzel → A finding of liability that does not finally dispose of
the plaintiff’s prayers for relief is not appealable to the court of appeals; mistakenly
motioned through 54(B) when there was not separate claims being decided upon

Writ of Mandamus: (rare instance)

● Where a court is behaving outside of their realm of authority and abusing their power
● Immediate action must be taken → example: denial by trial by jury when there is a
right
● Higher court steps in to tell lower court that their interlocutory decision was wrong
○ Party has no other adequate means to obtain relief
○ Party is damaged in a way uncorrectable upon appeal
○ Clearly erroneous as a matter of law
○ Error often repeated

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 ○ For new and important issues
Collateral Order Doctrine
● Outside merits of the case → Policy matter
● Conclusively determines disputed issue
● Resolves an important issue separate from the merits
● Effectively unreviewable upon appeal
● Examples → qualified immunity, contempt of court, Hickman contempt order

35
VII. Personal Jurisdiction

A. Origins
B. Modern Constitutional Formulation of Power

● States ability to assert power over a defendant in a civil lawsuit

● Due Process Clause: 14th Amendment → Constitutional right to due process;
must be constitutionally accurate to claim jurisdiction over an individual; 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
● U.S. Const. Art III Sec. 1: Judges shall hold their offices during good behavior
● U.S. Const. Art. IV Sec. 1:Full faith and credit given by each state to the acts of the
states around
● In personam → over person
○ jurisdiction within the state = can get sued there for anything

36
 ○ statutory sources for in personam jurisdiction: (1) physical presence in the
forum state at the time the defendant is served with process; (2) domicile; (3)
consent; (4) waiver; and
(5) long-arm statutes.
● In Rem → over property
○ If property is in the state then you can get sued there as long as property is seized
and is a part of the lawsuit
● Pennoyer v. Neff → Must have power of jurisdiction, consent to jurisdiction, and
notice of suit
C. Specific Jurisdiction
 States have interests in hearing cases concerning their laws or citizens
 Where a D may have never lived in the forum state, but their activity /
presence within the state is great → may entitle forum state to jurisdiction.
 The contacts test is related to the CLAIM in the suit
○ “A state court’s personal jurisdiction over a non-resident defendant is
derived from the state’s long-arm statute, subject to the limits imposed by
the Due Process Clause of the United States Constitution”
International Shoe v. Washington → Where a D may not be present within the territory
of the forum state but be subject to personal jurisdiction the D needs BOTH minimal
contacts and TNFSJ.
○ “To satisfy due process, a defendant must have minimal contacts with a
state so that jurisdiction is consistent with traditional notions of fair play
and substantial justice”

Minimum Contacts
● More than just having a relationship to someone within forum state
● Purposeful Availment → “Seeking to serve the forum state's market”

37
 ○ “Intentional act whereby a party exercises a privilege of conducting
business or other activities in a state invoking their benefits and
protections of the state’s laws”
○ Did the D avail themselves of the privilege of conducting activities within
the forum state's market which therefore invoked benefits and protections
from their laws?
○ sufficient and deliberate purpose of the D to be present within the state
○ McGee v. International Life Insurance Co. → “out-of-state” company
may be subject to in personam in a forum state where they have
substantial connections to one another through business transactions
○ Hanson v. Denckla→ D only subject to personam where they
purposefully avail themselves of the privilege of conducting business
within the state
○ Nature and Volume of Relatedness
■ the court must look to the purposefully directed activities of the
defendant toward the forum state and whether the harms arising
out of or relating to those activities are the cause of the litigation.
○ Purposeful Availment Test: Intent to serve the forum state; AND injection
of goods into the stream of commerce; AND awareness that product will
be in the forum state
■ Targeting the entire US market vs. a single state
■ Minimal benefits (2% annual revenue) - may not be sufficient
(abdouch)
■ Burger King v. Rudzewicz → Contracts between different state
citizens may be sufficient → aware of the business and the benefits
● Abdouch v. Lopez: Calder Effects Test: Intentional Torts in Forum State
○ Intentional Tort (no purposeful availment)
● Zippo Sliding Scale Test: Internet Activity Establishing Personam
○ Interactivity and commercial activity of a company → how much do they
target particular customers and seek profit from them?
○ Where interactivity and commercial activity are high = more likely to
establish sufficient contact within a state (Heavily operated business
compared to blog)
Traditional Notions of Fair Play and Substantial Justice: Reasonableness
● Volkswagen Corp. v. Woodson → Factors when Assessing Reasonableness /
Convenience
○ Burden on D (travel, unfamiliar with court, etc.)
○ Forum state's interest on the claim (their traffic laws, emergency
workers, etc.)
○ P interest in forum state (accident happened in state, most convenient)
○ Interstate efficiency (efficient litigation, access to witnesses)
○ Shared interest in substantive policy (related to state interest, who has
more interest)
● Unilateral activity in specific jurisdiction → Not enough, the mere foreseeability
of a P moving and entering into a forum state is not sufficient enough to claim
they “purposefully availed themselves” (general jurisdiction it may be)

38
Opinions: Plurality
● Asahi → Stream of Commerce and “Court Plurality”; unsettled
○ Brennan= sufficient minimum contacts → knowledge of the high volume
of sales
○ O’Conner = Not sufficient through minimal contacts because though
they had knowledge, they did not have the additional factor of deliberate
targeting (marketing, distribution, advanced design)
○ 8 judges agreed on minimum contacts but not the reasonableness factor
● McIntyre Machinery v. Nicastro → Seeking to serve “the entire US market”;
sale of one isolated machine in a forum, is this enough to claim specific
jurisdiction over a foreign distributor?
○ Kennedy = Must deliberately seek of the specific forum, targeting the US
market as a whole is not deliberate and purposeful availment which is required
○ Ginsberg = Intent to serve the entire US market is sufficient because you have
knowledge on where it is being placed, (join Brennan)
○ Breyer/Alto: Single Isolated sale in the forum state is insufficient
Application: Finding Specific In Personam Jurisdiction
● Int’l Shoe → Minimum Contacts and TNFPSJ
● McGee v. Int’l Life Insurance Co. → Purposeful Availment by intentionally
interacting with the forum state and directly seeking to serve the market
● Hanson v. Denckla → No purposeful availment because the D did not seek it
(P moved there after business was transacted in the D state) -- no solicitation;
unilateral activity
● Volkswagen Corp. v. Woodsen → Unilateral activity of a third party may not be
sufficient to bind a D to the forum state; bilateral activity between the two parties
to create the cause of action; the interest in the state was not because of the D
deliberate activity to serve their market
Painter’s case doesn’t involve specific jurisdiction because the injury had nothing
to do with the contacts the manufacturer had in state B.

C. General Jurisdiction
“level of contacts the D has with the forum state are so systematic and continuous that
one could expect to be sued there with no inconvenience”
● Individuals: General Jurisdiction in the place of domicile
● Corporations: always subject to general jurisdiction in their principal place of
business or where they are incorporated
○ Daimler AG v. Bauman → A court can assert general jurisdiction over a
corporation if the corporation’s affiliations with the forum state are so
continuous and systematic as to render the corporation at home in the
state.
■ Court dismissed general jurisdiction where their only contact was
a network of retailers.
○ Partnerships: Where ever a partner is located (their domicile), the
corporation is then subject to general jurisdiction there
○ Foreign corp: When affiliations with state are so “continuous and
systematic” that they’re essentially at home in forum state

39
 ● Transient jurisdiction: if served in the state, it counts, as long as you aren’t
tricked and are there involuntarily—gotcha (Pennoyer)
Goodyear v. Brown → only connection to the forum state that the D had was the sale of
an industrial machine in that state = not sufficient to claim general jurisdiction

40
VIII. Notice

A. The Constitution 105-11 (Mullane)

Constitutional Requirements
● Due Process Clause (5th and 14th) → “sufficient notice of service must be given to
defendants”
○ Notice reasonably calculated under all circumstances
○ To apprise its parties of pending action AND
○ Give them an opportunity to be heard
Hierarchy of Notice: Forms and Procedures
● Personal (preferred)
● Mail (reliable; weigh costs and burden)
● Publication (last resort; this is never favored unless exceptions provide)
○ Pennoyer: Supplement by some attachment to property
○ Missing / unknown defendants (class action suits, no one has your address,
you move often, etc.), Extensive list of contingent beneficiaries (notifying my
great-great grandchild on my interests), etc.
● Mullane v. Central Bank → Sometimes complying with a statute allowing for notice publication
may be insufficient when the burdens of taking other measures is more reasonable and would
not impose an undue burden or expense for doing so

B. Beyond Constitutional Requirements: The Mechanics of Notice and Service 111-

17 (Baideo)
Baido-> plaintiff is granted permission to serve defendant with the divorce summons
using a private message through Facebook.

RULE 4: Service Rules

● When it comes to determining sufficient service of process → Tends to be applied

liberally
○ if the D actually received notice of the service then → sufficiently / efficiently
served (mostly)

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 ● 4(A)(1): Contents→ A summons must include: name of court and parties, be directed
to D, name of attorney, time which D must appear, etc.

● 4(C)(1): Service → Summons must be served with a copy of the complaint

○ (2): Served by any person who is at least 18 years of age and not a party to the
complaint

● 4(D) (1): Waiving Service → A party subject to service has a duty to avoid
unnecessary expenses of serving the summons; P may notify such D that an action has
been commenced and request that the D waive service of a summons
○ (F): Timing → Must give the D reasonable time of at least 30 days after the
request was sent (60 if outside the US) to return the waiver

● 4(D)(2): Failure to Waive: If a D fails without good cause to sign and return a waiver
requested by the P, then costs may be imposed on the D
○ Expenses incurred in making the service; and other reasonable expenses
(attorney fees)
● 4(D)(3): Answering After a Waiver: A D who timely returns a waiver of service does not
have to respond to the complaint until 60 days after the request was sent
● 4(D)(5):Waiving Objections → Returning the waiver removes a parties right to make
objections to 12(b)(5) → can still object to lack of personal jurisdiction or venue
○ a defendant participates in the lawsuit and waives any personal-jurisdiction
objection if the defendant conducts discovery or attends and observes
proceedings without specifically preserving any objection to personal jurisdiction.

● 4(E)(1): State Courts Forms of Notice

○ Can choose to serve a defendant in whatever way their state allows
(regardless of if the claim is one involving state law v. federal laws)

● 4(E)(2)(A)-(C): Forms of Notice: Federal

○ Notice may be delivered personally: by leaving an attached copy at the defendants
home with someone of a suitable age/reasonableness who resides there, or through
delivering a copy to each agent authorized through appointment

● 4(M): P has 90 days after the complaint was filed to serve the D; failure to do so
without goodcause can lead to dismissal

● Rule 4(K)(1)(a): Federal Long Arm Statute

○ Federal courts and state courts can have as much of a jurisdiction reach as the
constitutional allows
○ Congress recognizes some instances where the federal court may be able to extend a
larger reach of jurisdiction (Rule 14 and 19)

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IX. Subject Matter Jurisdiction of the Federal Courts

[Link] Idea and the Structure of the Subject matter Jurisdiction.

Courts must have BOTH subject matter jurisdiction + personal jurisdiction to be valid
U.S. Const. Art. III Sec. 2: Limit on Federal Courts
● List of what cases federal courts may here (limited)
● Congress can limit what courts are allowed to hear within constitution
● Concurrent Jurisdiction: Where a case can be heard in both the federal court or state
court; You decide where to file (Consider: Potential Jury Pool, wait times, federal judges,
liberal v. conservative, etc.)

B. Federal Question Jurisdiction 144-50 (Mottley) (skim Notes 6-8);

U.S. Const. Art. III; 28 U.S.C. §§ 1331

28 U.S.C. §1331: Federal Question Jurisdiction

● Federal courts have original jurisdiction over all civil actions arising under constitution,
laws, or treaties of US
● Limits constitutional power of courts (can’t give more authority than Art. III, but can
give less)
● Well Pleaded Complaint Rule: mere anticipation of federal question outside of claim is
not enough to satisfy SMJ—federal question must arise out of P original complaint
○ Not allowed to be a “predicted possible response” of the D
○ Burden of federal question jurisdiction on party seeking removal to federal
court
Louisville & Nashville RR v. Mottley → Where the anticipated response of a D could have been
a federal claim → not sufficient enough to claim federal subject matter jurisdiction
○ must have “arose out of” the P original complaint
○ Original complaint was breach of contract, and anticipated defense was a
federal statute / constitution= no SMJ
C. Diversity Jurisdiction
28 U.S.C. §1332: Diversity Jurisdiction
● “Between citizens of different states” → neutral forum in federal courts
● Granting SMJ based on domicile of the parties → to claim diversity jurisdiction, there
must be COMPLETE DIVERSITY
○ Complete diversity: No party on one side of the case (plaintiffs) should have
the same state citizenship as any party on the other side of the case
(Defendants) - adding a new party later on may destroy diversity
§1332(a): Individuals → Domicile = Presence + Intent to Remain
○ Class Actions: Someone in class different from one D = willing to grant DJ
○ Intent to stay = NO intent to go anywhere else, long-term, permanent residence within
the state (on exam, argue both sides - why might there be intent v. why not?
Hawkins v. Master Farms → claiming there was not intent to stay because of previous
discussion about moving = not enough to claim diversity jurisdiction; too subjective
■ “Floating intention” to leave a state = may be sufficient to establish domicile
○ Amount In Controversy: Must exceed $75,000 (only applies when diversity
requirement is met)

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 ■ Must be made in good faith - even if awarded less than what was anticipated,
as long as it was a good faith estimate then SMJ will apply
1332(B) → Allows for diversity jurisdiction between US citizens and Foreign citizens (not
residents)
○ “Ex-Patriot Americans” = not covered through DJ when they choose to reside in a
foreign country but have citizenship within a certain state in the US
Redner v. Saunders → P was a US citizen residing in France → not enough to claim
diversity juris. Because US citizenship status was met; further, previous domicile in Ca
was not enough to claim present
§1332(c): Corporations: domiciled in PPB
○ PPB = only one; headquarters; where the main business transactions are conducted

D. Supplemental Jurisdiction-28 U.S. Code § 1367

1. Under 28 U.S.C. § 1367, a federal district court may exercise

supplemental jurisdiction over state-law claims that the court would not
otherwise have subject matter jurisdiction to hear, as long as the claims
are part of the same case or controversy as the claims over which the
court has original jurisdiction (28 U.S.C. § 1367(a)). Supplemental
jurisdiction promotes judicial efficiency because all of a party's claims can
be decided in one trial by the federal court, rather than in two trials by a
federal and a state court. The supplemental jurisdiction statute codifies the
common law doctrines of "ancillary" and "pendent" jurisdiction.
2. In cases where the federal court's jurisdiction is based solely on diversity
jurisdiction, however, the court does not have supplemental jurisdiction
to hear claims by or against additional parties if their presence in the case
would destroy complete diversity (28 U.S.C. § 1367(b)).

28 U.S.C. §1441: Removal of Subject Matter Jurisdiction

● Could the P have filed in federal court to begin with?
● Allows defendants to remove a case out of state court and into federal court if it could have
been
filed in federal court (under §1331 or 1332) originally
○ Must be done within a year or the process is declined
○ f sued in home state, the D can not move to a federal court
● Can not go from federal courts to state courts
● Transaction Test → Operating from the same set of operative facts
Meeting the Amount in Controversy
● D may challenge the amount where they believe that the claim on the amount is too high
(12(b)(1) - lack of SMJ)
○ Legal certainty: a jury could not find for damages that high
● A single P with two or more unrelated claims against a single D may aggregate those claims
to
meet the minimal amount
○ Example: Bob sues Mary for breach of settlement agreement ($70,000) and an unpaid
bond (6,000) = can be aggregated to meet $76,000
● Where 2 P’s have separate claims against a single D, they may not aggregate as one
○ Claims are “separate or distinct” → opposed to a common claim for jointly owned
property

44
○ Minimum amount in controversy (one P) + similar claims = other P can file in fed.
court■ Example: Annie and Fried sue RR. Annie alleges breach of settlement ($60,000)
and Fred alleges negligence that resulted in harm ($40,000) → separate and
distinct and can not be added together and there
● Where a single P is suing two separate D’s with unrelated claims
○ you can not add the amounts to meet the amount in controversy even if one meets it on
their own
● Situations involving multiple P’s or D’s with a common undivided interest and single title or
right
○ the value of the total interest will be used to determine the amount in controversy
○ Punitive Damages: the prediction of potential money damages can not be used to meet
the amount in controversy
■ A little prediction may get you over the edge, but a higher prediction won’t
suffice

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SUBJECT-MATTER JURISDICTION ATTACK SHEET:
1. Is diversity jurisdiction available through 1332?
● Does the amount in controversy exceed 75,000? (do one of the exceptions?)
● Are the P and D citizens of different states or residents of a foreign state?
○ Corporations? Individuals - (Domicile at the time of the suit and intent to
remain)?
2. Is federal jurisdiction allowed on the ground that the suit raises a federal question?
● Federal Law (Article III)
● State Law Claim raising federal issue - 1331: Well-Pleaded Complaint Rule
○ Even if the P is not asserting a claim created by federal law, there may be
grounds for federal court jurisdiction if the assertion of a state law claim turns on
the resolution of a federal issue.
○ Assuming the complaint alleges a federal issue, the question is whether it
meets the well-pleaded complaint test – i.e., whether the inclusion of the federal
issue is necessary as a matter of pleading to state a claim.
○ Thus, P’s anticipation of a defense based on federal law that D is certain to
raise is not sufficient to establish federal court J.
○ Also, if the federal ingredient is necessary to a P’s claim, the federal issue must
be substantial, because the determination of the state law claim turns on
resolution of the federal issue, and it may be important to ask whether there is a
federal interest in having the claim in federal court.
● If the case was originally filed in state court, have D’s properly removed it to Federal
court?
○ In general, Ds may remove the case to federal court whenever the P could
originally have filed the case in federal court on grounds either of diversity or
federal question.
Consider specialized aspects of removal:
○ Timely notice of removal by all Ds: There is a short time frame for removing a case to
federal court, and all defendants must usually join in removing the case.
○ Whether the case was within federal court’s original J – Ds ordinarily may remove the
case only if it would have been within the federal court’s original J had P filed it in
federal court. But note that sometimes this is not sufficient. For example, even if there is
complete diversity of citizenship, removal is generally not available on grounds of
diversity of citizenship if one of the Ds is a citizen of the state in which the suit was filed.
○ Alternatively, whether case involves a separate and independent claim arising under
federal law – in one situation, removal J is broader than original J. If a D is sued on a
claim arising under federal law that is entirely separate from the other claims asserted in
the case, it may remove the case on that ground even though P could not initially have
filed the case in federal court
○ Once removed, whether case is subjects to remand to state court- if the case was
improperly removed to federal court, the federal court may remand it. Even if removal
was initially proper, if all federal claims have been dismissed, or if P was allowed to
amend to add non-diverse Ds in a diversity case, the federal court may remand.

46
X. Respect for Judgements

A. Claim Preclusion aka Res Judicata

1. Same Parties, Same Claim, Final Valid Judgement
2. Significance if its in them same transaction
You had to know about it at the time of claim I.e, injury discovered later

B. Issue Preclusion: There are two forms of issue preclusion/collateral

estoppel - offensive (plaintiff) and defensive(defendant):
 Defensive issue preclusion occurs when the party being sued
raises collateral estoppel.
o As established in Bernhard v. Bank of America, defensive issue
preclusion does not require mutuality.
o In other words, a person who was not a party to the initial
case can raise issue preclusion.
 For example, if a court determines that Frank cannot
recover in a lawsuit against Sally because Frank was
negligent, then Susan can raise collateral estoppel as
to Frank’s negligence if she too is sued by Frank.
 Offensive issue preclusion occurs when the party who initiates
the lawsuit/claim raises collateral estoppel against the defendant
in a previous case.
o Offensive issue preclusion generally does require
mutuality; meaning it can only be used by parties to the
initial lawsuit, though a few exceptions exist.
 For example, if a court determines that Frank can
recover against Sally because Sally was negligent,
Susan generally cannot raise collateral estoppel as to
Frank’s negligence in a second case against Frank.
o Courts have broad discretion as to whether they will allow
non-mutual offensive issue preclusion, with a few common
justifications outlined in Parklane Hosiery Co. v. Shore.
o These justifications include misaligned incentives in the
first case, different procedural factors in the first case than
in the second case, and whether the plaintiff in the second
case could have easily joined the first case.

B. The black letter of issue preclusion is simple: When

[Link] issue of fact or law is

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[Link] litigated and determined by
3.a valid and final judgment, and
[Link] determination is essential to the judgment
the determination is conclusive in a subsequent action, whether on the same or a
different claim. Restatement (Second) of Judgments §27

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XI. Probing the Boundaries: Additional Claims and Parties

A. Joinder of Claims

 There are permissive and compulsory counterclaims. "Common law compulsory

counterclaims" are counterclaims that, if successful, would nullify
the plaintiff’s claim. If defendants do not raise these counterclaims, they cannot
sue on them later in a different lawsuit. For example, if Company A sues
Company B for breach of contract, and Company B did not make any
counterclaims, Company B could not later sue Company A for fraudulently
inducing it to sign the contract in the first place. See Res Judicata. See,
e.g., Cardinal Chemical v. Morton International.
 Many jurisdictions have also created additional classes of compulsory
counterclaims. For example, Rule 13 of the Federal Rules of Civil
Procedure requires defendants to raise as a counterclaim any claim they have
against parties already in the lawsuit if the claim "arises out of the same
transaction or occurrence" as one of the plaintiff's claims.
 Permissive counterclaims are counterclaims addressing matters unrelated to
the plaintiff’s claims. This allows parties to settle all their otherwise unrelated
disputes in one single lawsuit.
 If the defendants’ counterclaims address the same basic issues as
the plaintiff’s claims, courts usually address the claims and counterclaims at the
same time. If the counterclaims involve distinctly different issues or facts, the
court may choose to address them separately.
RULE 18: Joinder of Claims
● 18(A): In general: a party may join as many claims as you have against
a D at the same time
Exceptions / Issues;
● Preclusion Risk: incentivizes joining claims
○ If you don’t bring in a claim that is transactionally related - you
risk precluding them from another suit
● Subject Matter Jurisdiction: federal courts may have jurisdiction over
one claim but not another
○ 28 U.S.C. 1367(A): Supplemental Jurisdiction: Federal Law Claim
+ State Claim (arising through the same transaction) → federal
court may have jurisdiction to hear the stateclaim → Would be
pointless to litigate separately because of high relatedness
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 ○ Must ensure that subject matter jurisdiction is existing
● RULE 13: Counterclaim and Cross Claims
○ Counterclaim - “across the v”; the P is actually liable to me, as the D, therefore
I deserve the judgement as a reward instead
○ Cross Claim: “on the same side of the”claim made against a party on the same
side… (Pv.P) or (D v. D)
■ 13(G): “ In order for joinder of a crossclaim to be proper, the crossclaim
must arise out of the same transaction or occurrence or relates to the
same property”(no permissive ones allowed)
○ 13(A)(1): Compulsory Counterclaim: bringing compulsory counterclaims are
required - can not litigate again if you do not → MUST state counterclaim if-
■ Arises out of the same transaction or occurrence
■ Jurisdiction over any added parties
○ 13(A)(2): Exception to Compulsory Counterclaims → Don't have to state the
claim:
■ When the action was commenced, the claim was subject of another
pending action; or
■ The opposing party sued on its claim by attachment or other process
that did not establish personal jurisdiction over the pleader on that claim,
and the pleader does not assert any counterclaim under this rule
○ 13(b): Permissive: can choose if you want to bring it in and litigate, but also not
related so you can have potential to bring it again - no preclusion
● Cordero v. Voltaire, LLC → A federal court has jurisdiction over a permissive state
lawcounterclaim if the claim is so related to a federal claim that it forms part of the same
case or controversy.
○ Ex-employee sued ex-employer for unpaid overtime through FLSA
○ Employer counterclaimed fraud (faking hours) and conversion (theft of
equipment)
○ Conversion claim was not transactionally related enough to the main claim
which gave the federal courts not supplemental jurisdiction to hear the claim

B. Joinder of Parties

Rule 18
(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:

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 (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 s
ituated 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.

(2) Joinder by Court Order. If a person has not been joined as required, the court must
order that the person be made a party. A person who refuses to join as a plaintiff may be
made either a defendant or, in a proper case, an involuntary plaintiff.

(3) Venue. If a joined party objects to venue and the joinder would make venue
improper, the court must dismiss that party.

Rule 20:
(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:

(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; and

(B) any question of law or fact common to all plaintiffs will arise in
the action.

(2) Defendants. Persons—as well as a vessel, cargo, or other property

subject to admiralty process in rem—may be joined in one action as
defendants if:

(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; and

(B) any question of law or fact common to all defendants will arise in the action.

(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or
defending against all the relief demanded. The court may grant judgment to one or more
plaintiffs according to their rights, and against one or more defendants according to their
liabilities.

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