Speedy, and Inexpensive Determination of Every Action and Proceeding

Rule 1.
Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just,
speedy, and inexpensive determination of every action and proceeding.
Does the State have jurisdiction? 2

Requirements of In Personam Jurisdiction: 3
The power of the courts over a ∆ 3
1. General Jurisdiction 3
2. Specific Jurisdiction 3
Constitutional Limitations 4
1. Traditional Rule: 4
d. ∆ is present in the forum state and personally served with process 4
e. ∆ is domiciled within the forum state 5
f. ∆ consents to jurisdiction 5
2. Modern Due Process Standard: 5
e. Contact: 6
i. Purposeful Availment 6
f. Foreseeability 8
g. Fairness 8
h. Convenience 9
State Statutory Limitations (Long Arm Statutes) 10
Notice 10
Requirements of In Rem/Quasi In Rem Jurisdiction 11
Statutory Inquiry 11
Constitutionality 11
Subject Matter Jurisdiction 12
Federal Question Jurisdiction 12
Supplemental Jurisdiction 13
Venue 14
Diversity of Citizenship / Amount in Controversy 16
Removal 17
The Erie Doctrine 19
Pleadings 21
Motions (& Pre-Answer Motions) 22
Answer (Responsive Pleading) 23
Amendments & Supplemental Pleadings (Relating Back) 24
Special Claims: Requiring and Forbidding Specificity in Pleading 25
Allocating the Elements 27
Ethical Limitations - Sanctions 27
Discovery & the Adversarial System 30
1. Discovery Limitations - Relevance 30
Rule 3. Commencement of Action 1

A civil action is commenced by filing a complaint with the court.
Rule 1. Scope and Purpose
2. Discovery Limitations – Privilege 31

b. Trial Preparation 31
c. Experts 31
Controlling Against Discovery Abuse 32
Summary Judgment 33
Incentives to Litigate – Remedies/Financing 35
Injunctive Relief 35
Provisional Remedies 36
Compensatory Damages 38
Punitive Damages 38
Financing Litigation 39
Does the State have jurisdiction?

1. To have jurisdiction a state must have:
a. A statute that doesn’t limit the States power over the parties before the court
i. Long Arm statutes
1. The state does not need to exercise the full limit its constitutional boundaries.
b. Power must also lie within Constitutional Limits
i. The Due Process Clause
1. Minimum Contacts
a. Must have such contacts with the forum state that the exercise of jurisdiction would be fair and reasonable
ii. ∆ must also be provided adequate notice of the action and opportunity to be heard.
2. Federal Courts must analyze personal jurisdiction as if it were a court of the state in which it is located.
Requirements of In Personam Jurisdiction:

The power of the courts over a ∆
General Jurisdiction
a. Δ can be sued in that forum on a claim that arose anywhere in the world
i. If the Δ has substantial ties with the forum
1. Domicile in the forum

2. Corporation is incorporated in the forum

3. Business has some kind of “permanent” establishment that it would be expected to be brought into court there.
b. When the ∆ has such substantial contacts with the forum state to make it fair to assert jurisdiction even over claims unrelated to those contacts.
i. Could be sued over contracts or torts in different states than those in which they are operating within.
ii. Even when the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum State, due process is not offended by a State’s
subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporations,” Helicopteros
Nacionales de Colombia v. Hall, 466 U.S. 408, 414 (1984).
Specific Jurisdiction
a. First identified in International Shoe
i. Falling short of the general jurisdiction, the minimum contacts analysis becomes important.
1. Courts worry both about the extent of those contacts and about the relation between those contacts and the claim on which plaintiff is suing.
a. When jurisdiction exists for the specific claim in question.
b. The more closely related the contacts and the facts giving rise to the claim, the more likely the court is to uphold jurisdiction.
b. The Δ is being sued on a claim that arises from activities in the forum
i. Discreet and insular contact (car accident)
1. Claim arises out of and related to the contact with the forum
ii. Held, bringing an action in the state two years earlier does not qualify as substantial activity, no personal jurisdiction.
c. Systematic and Continuous Activity: Jurisdiction will exist for a COA against the ∆ related to the activities.
2. Coastal Video Communications v. Starwell (1999) (where Δ is based in CA but sold videos and advertised in VA, and copyright violation did not arise out of contact with VA, the Court says it
needs more information about the extent of the Δ’s contact with the forum state in order to determine whether they are subject to general or specific jurisdiction).

Constitutional Limitations
Traditional Rule:
a. A territorial model of jurisdiction
b. The State has physical power to carry out a judgment over a person (or res).
c. Pennoyer v. Neff (1877) (the Supreme Court held that due process prevented suit against nonresident defendants who could only be found and served elsewhere).
i. Pennoyer involved a default judgment entered by an Oregon state court against Neff for attorney’s fees. Neff was neither a citizen of Oregon nor had he been served
there, although he did own property in the state. Neff’s Oregon property was seized and sold by the sheriff to Pennoyer in order to satisfy the judgment. Subsequently,
Neff sued Pennoyer in federal court for recovery of his property.
ii. Concluding that Oregon could not exercise personal jurisdiction over Neff in an action to determine personal liability, the Court invalidated the default judgment and
resulting sheriff’s sale.
iii. The Court held that if a state court attempts to exercise personal jurisdiction over a defendant, the defendant “must be brought within its jurisdiction by service of
process within the State, or his voluntary appearance.”
iv. Also includes ∆s who consented to the state’s power, who are domiciled in the state, regardless where they are served.

d. ∆ is present in the forum state and personally served with process

i. Most states allow a ∆ to be served with process within the borders of the state no matter how long he was present
ii. Burnham v. Superior Court (where a NJ Δ was sued in CA on a claim that arose in NJ when he was served while briefly in the state of CA on business and to visit his
children, the courts held they had personal jurisdiction where, pursuant to Pennoyer, presence when you are served within a state is enough).
e. ∆ is domiciled within the forum state

i. Domicile refers to the place where a person maintains their permanent home
ii. ∆ is present within forum state
iii. ∆ has an intention to make place her home
f. ∆ consents to jurisdiction
i. Express
1. By K a person can give advance consent to jurisdiction
2. Carnival Cruise Lines, Inc. v. Shute (1991) (where there was an adhesion contract term requiring passengers on a cruise to consent to any litigation related
to the cruise in FL, the court held that you can waive your constitutional protections and that minimum contacts are not necessary when there is consent
through a reasonable forum selection clause).
a. A cruise will have passengers from all over the country, and absent a forum selection clause, the cruise company could be subject to suit in all
sorts of places
b. A forum selection clause eliminates uncertainty about the forum and avoids costly pretrial motions.
c. Forum selection clauses mean lower fares for passengers because the cruise company passes along savings from limiting the forums where the
company must defend itself.
3. By appointment of an agent to accept service of process
a. A person, by K, can appoint an agent to receive service in a particular state.
b. A person may be required by law, if they are conducting business within the state, to appoint an agent for service of process in the state.
ii. Implied
1. When a state has substantial reason to regulate the in-state activity of a nonresident, by engaging in an activity, the nonresident thereby appoints a
designated state official as his agent.
2. Hess v. Pawloski (where a nonresident motorist has such implied consent to be subject to jurisdiction in any state he has an accident).
iii. Voluntary Consent
1. ∆ contests a case without challenging personal jurisdiction.

Modern Due Process Standard:

g. Moves to a transactional model of jurisdiction.
h. Two Prongs:
i. Due Process requires that there must be sufficient minimum contacts between the ∆ and the forum state
ii. Maintenance of the suit against the ∆ does not offend “traditional notions of fair play and substantial justice.”
i. International Shoe v. Washington (1945) (where a company based in St. Louis had salesmen in Washington and Washington wanted a contribution from corporation to state
unemployment fund, the Courts held personal jurisdiction over non-resident corporate Δ where the Δ has “such minimum contacts with the forum so that exercise of
jurisdiction does not offend traditional notions of fair play and substantial justice”).
i. Facts:
1. International shoe had no office in Washington, and made no K’s for sale or merchandise there. It maintains no stock of merchandise and makes no
deliveries of goods in intrastate commerce.
2. All orders are shipped from points outside of Washington to purchasers within the state.
3. No salesman has the authority to enter into K’s.
4. The salesmen are provided a line of samples, which they display to prospective purchasers.
a. They rent permanent sample rooms for exhibition, and sometimes rent out hotel rooms.
ii. Rational:
1. Due process requires only that in order to subject a ∆ to a judgment in personam, if he is not present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”
2. “Presence” in the state has never been in doubt when the activities of the corporation have been continuous and systematic.
3. Casual presence or single/isolated activities in a state are not enough to subject it to suit.
4. Look to the nature and quality of the contacts.
j. Factors in assessing minimum contacts:
i. presence in the state
ii. systematic and continuous activities within the state
iii. enjoys the benefits and protections of state laws
iv. whether it is reasonable to expect the Δ to defend itself in that state
k. Level of Activity v. Relatedness of Activity
i. Was the level of activity casual or continuous?
ii. Was it related or unrelated.
iii. How substantial are the contacts
1. Are they continuous and systematic OR casual and episodic?

l. Contact:
i. Purposeful Availment
1. ∆ must reach out in some way, such as to make money or use the road in the forum state, to have purposely availed herself “of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its laws.”
2. Cannot be accidental
3. For π:
a. International Shoe v. Washington (1945)
b. Burger King v. Rudzewicz (1985)(where the Supreme Court concluded that personal jurisdiction over Rudzewicz was constitutional, finding
that there were enough Florida contacts related to the controversy to satisfy the test, where ∆’s at times dealt directly with Burger King’s
Miami headquarters, where entering into a K with Burger King, the ∆ purposely availed himself to the benefits and protections of Florida’s laws
by expressly providing that those laws would govern franchise disputes, and where they promised to send their franchise payments to Burger
King’s Florida address).
i. Under the circumstances, the Court refused to attach importance to the fact that Rudzewicz had not been in the forum state.
c. Burnham v. Superior Court (1990) (where a NJ Δ was sued in CA on a claim that arose in NJ when he was served while briefly in the state of CA
for business and to visit his children, the courts held Personal Jurisdiction where being present within the state and availing yourself to the laws
and protection within the state is sufficient to establish minimum contacts).
4. For ∆:
a. Hanson v. Denkla (1958) (where a deceased mother had set up a trust in DE and moved to FL, where the ∆’s trust company had no office in FL,
and where the ∆ did not solicit any business in FL, the Court held that the unilateral activity of making payment’s to the deceased was not
enough to satisfy minimum contacts).
i. Facts:
1. The ∆ has no office in FL and conducts no business there. The ∆ does not solicit any business by either person or mail.
2. Trust was formed in DE and Mrs. Donner moved to FL, where the ∆ remitted the trust income there. Mrs. Donner carried
on some bits of trust administration but there are no instances on record of ∆ performing any acts there.
ii. Rational:
1. The Court held that there must be some act by which the ∆ purposely avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its laws, BUT the unilateral activity between the two
parties cannot satisfy the required contact with the forum State.
5. Stream of Commerce

a. Asahi Metal Industry v. Superior Court (1987) (where a victim of motorcycle accident brought suit in CA court against Taiwanese tire-tube
maker who cross-claimed against a Japanese manufacturer of the tube valve assembly, the court was divided whether the ∆ has sufficient
minimum contacts simply by putting a product into the stream of commerce).
i. 4 justices opined that simply placing an item in the stream of commerce, with knowledge that it would end up in a particular forum,
constituted purposeful availment,
ii. AND 4 other justices opined that there had to be some other additional step, such as solicitation, for a ∆ to have purposeful availment
b. Worldwide Volkswagen v. Woodson (1980)
i. That one can be liable if they deliver their products into the stream of commerce with the expectation that they will be purchased
there.
m. Foreseeability
i. The ∆ must know or reasonably anticipate that her activities in the forum render it foreseeable that she may be “hailed into court” there.
1. Worldwide Volkswagen v. Woodson (1980) (where a family lived in NY and was moving to AZ, where they bought a car in NY, and got in accident in OK;
the courts held there was jurisdiction over Volkswagen nationally but no personal jurisdiction over a regional distributor/NY retailer in OK where there is
no relevant contact or “purposeful availment”, where the regional distributor did not solicit their business outside of the tri-state area, and though they were
selling cars that were designed to travel, it wasn’t foreseeable that they would be sued in OK forum).
a. The Court further refined the minimum contacts test, stating that “critical to due process analysis . . . is that the defendant’s conduct and
connection with the forum State as such that he should reasonably anticipate being haled into court there.”
b. Supreme Court found that there were no “contacts, ties, or relations” with the State of OK.
c. That the marginal revenues ∆ may receive by virtue of the fact that their products are capable of use in OK is far too attenuated a contact to
justify the State’s exercise of jurisdiction.
d. Cited Hanson v. Denkla, that the mere “unilateral activity” was not enough to satisfy the required contact.
e. That the ∆ must actually make efforts to directly or indirectly market its products in the forum state such that it is not unreasonable to subject the
∆ to suit there.
f. That one can be liable if they deliver their products into the stream of commerce with the expectation that they will be purchased there.
g. AND just because it may be “foreseeable” that a car will be driven across the US, it is not sufficient in light of the other circumstances.
2. Pavlovich v. Superior Court (2002) (where a website gave info to decrypt data stored on DVDs to permit copying copyrighted materials, and the website
was passive and only makes information available, the courts held that there was no PJ even if harm in the forum is foreseeable where the exercise of
jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information).

n. Fairness
i. Exercise of jurisdiction must not offend “traditional notions of fair play and substantial justice.”
ii. Relatedness of claim to contact
1. For π
a. McGee v. International Ins. Co. (1957) (where the Court held that “single or isolated activities” related to the controversy could support
personal jurisdiction).
i. Facts:
1. Franklin bought a life insurance policy from an insurer (who was subsequently bought by ∆) who then mailed a
reinsurance certificate to Franklin in CA, offering to insure him. Franklin accepted this offer and paid premiums until his
death from his CA home to the ∆’s TX office. π brought this suit when ∆ refused to pay b/c Franklin committed suicide.
2. ∆ never has had an office or agent in CA.
3. ∆ had adequate notice with sufficient time to prepare its defense and appear.
ii. Rational:
1. The suit was based on a K that had substantial connection with the state. The K was delivered in CA and the premiums
were mailed from CA until the insured died in CA.
2. CA has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay
claims.
2. For ∆
a. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984) (where the mere fact that the nonresident ∆ made regular purchases in
the forum state was not held sufficient to justify personal jurisdiction in a case not related to such purchases).
iii. Could also be considered a part of the contact prong…
1. Considers the nature and quality of the ∆’s contact with the state.
o. Convenience
i. The Constitution does not require that the forum be the best of several alternatives.
ii. For π:
1. Burger King v. Ruzewicz (1985) (where the ∆ was simply at a financial disadvantage under the π, and where it would have been more convenient to stay in
Michigan, there was not ample inconvenience).
a. The forum is acceptable unless it is “so gravely difficult and inconvenient that a party is will for all practical purposes be deprived of his day in
court”
iii. For ∆:

1. Asahi Metal Industry v. Superior Court (1987) (where it would have been inconvenient for an international Japanese manufacturer to defend itself in a
foreign legal system).
a. The Court held that CA’s attempt to assert personal jurisdiction over the foreign ∆ was unreasonable on balance. That the interests of the π and
the forum state were “slight,” and Asahi’s burden from defending in CA was “severe.”
iv. Forum State’s Interest:
1. The forum state may have legitimate interests in providing redress for its residents.
2. For π:
a. McGee v. International Ins. Co. (1957) (where TX insurance company was served by mail in TX, for a suit in CA and only had one contract in
CA, the court held that was sufficient minimum contacts where the state has an interest in protecting its citizens from out of state companies).
i. Policy: CA had a strong interest in protecting its citizens from alleged misfeasance by insurance company.
ii. The insurance company had satisfied the minimum contacts test through the continual solicitation of their business with this client,
and the client’s payments to the ∆.
3. For ∆:
a. Asahi Metal Industry v. Superior Court (1987) (where, even though the ∆ placed a product into the stream of commerce, it was not in the States
interest to subject the alien ∆ corporation to its jurisdiction, especially after the original ∆’s had settled, and this was an indemnity claim).
p. Other Factors include: (1) the π’s interest in obtaining convenient and effective relief, (2) the interest in the judicial system’s interest in obtaining the most efficient resolution of
controversies, and (3) the shared interest of the states in furthering substantive social policies.
State Statutory Limitations (Long Arm Statutes)

1. ∆ has committed acts bringing him within the forum states’ long-arm statute.
a. Unlimited Long Arm Statutes
i. Extend to the extent constitutionally exercisable under the Due Process Clause.
b. Limited (or specific) Long Arm Statutes
i. Depend on the type of claim and the States willingness to have jurisdiction.
ii. Gibbons v. Brown (1998) (where there was a car accident due to bad directions, and π sought to assert jurisdiction over non-resident Δ on the grounds that the Δ had
filed a lawsuit in the forum two years earlier stemming from the same incident (π was not a party to that suit), the courts held FL long arm-statute permitted
jurisdiction over those “engaged in substantial and not isolated activity” within the state, but that the state statute did not include those “engaged” to mean
persons involved in a prior suit).

Notice
1. Due process requires that a reasonable method be used to notify the ∆ of a pending lawsuit so that she may have an opportunity to appear and be heard.
2. And that notice be “reasonably calculated, under all circumstances, to apprise interested parties of the pending action and afford them an opportunity to present their objections.”
3. Pursuant to Rule 4(e) of the FRCP:
a. In federal actions, a π may serve process upon an individual, corporation or association either:
i. Pursuant to the laws of the state, OR by
ii. Delivering the summons and complaint to the individual personally;
iii. By leaving the summons and complaint at the individual's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein;
iv. OR by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.
4. Requirement that Agent notify ∆
a. When the ∆ voluntarily selects his own agent, failure of the agent to notify the ∆ is not considered deprived of an opportunity to be heard
5. Multiple or Unknown Party’s
a. Mullane v. Central Hanover Bank & Trust Co (in a pooled trust funds where notice of terminated right to suit for mismanagement was published in newspaper, the courts held that
due process requires notice must be “reasonably calculated under the circumstances to apprise the Δ of the suit and provide an opportunity to be heard,” and that it would
not have burdened the trust to mail individual notices because they knew of the location of the beneficiaries, but that there was no need to notify all of the trust beneficiaries b/c
there were others notified who are presumed to act in the favor of those not notified, and that it was the best practical means of notice).
i. Alternative means of notice, such as newspaper publication, may satisfy due process where individual notice is impracticable and the party seeking to bypass
individual notice can demonstrate that (1) the suit is in the interest of the absentees, (2) they will be adequately represented by one before the court, and (3) the value of
their individual interests is not too great. Where the identities and parties can be reasonably ascertained, however, individual notice is required.
ii. All about the constitutionality of substituted service of process.
Requirements of In Rem/Quasi In Rem Jurisdiction
Statutory Inquiry
1. Attachment statute requires attachment at the outset of the litigation
a. Common law attachment standard from Pennoyer
i. Necessary to forewarn or notify defendant that he his property is in jeopardy, that it has been seized by the state.
ii. We assume that in order to protect the property, the owner will appear.
Constitutionality
1. In many states it is statutorily mandated that being the director of a corporation registered in that state submits those directors to personal jurisdiction in the state

a. This holding made quasi in rem insufficient and incorporated pure in rem on the presumption that there’s always contact between the owner and the property and the property is
within the forum state.
2. Property in a forum may still suffice to create general in personam jurisdiction under minimum contacts assessment.
3. Shaffer v. Heitner (1977) (where Heitner, a non-resident of DE, brought a shareholder’s derivative suit against 28 officers and directors of Greyhound, a DE corporation, gaining in rem
jurisdiction by attaching their stock in Greyhound; ∆’s argued that they did not have sufficient contacts with DE to warrant jurisdiction, the courts held that there was no jurisdiction where
property in the state that serves as a basis for jurisdiction but is unrelated to the cause of action, there must be sufficient minimum contacts with the state to support jurisdiction over the Δ).
a. Neither the ownership of shares of stock of a corporation located in the forum state is sufficient minimum contacts to support personal jurisdiction over individual Δ’s
b. Basically does away with In Rem/Quasi In Rem (in cases when the property doesn’t have anything to do with the COA).
4. Quasi In Rem:
a. Quasi in rem jurisdiction is another method for exercising jurisdiction over a defendant, albeit in a limited manner, based on the defendant’s property located within the forum.
b. Quasi in rem jurisdiction can be used to adjudicate personal obligations, not merely rights in the res.
c. However, it binds the defendant only with respect to his interest in the res upon which jurisdiction is based, and thus, the value of a quasi in rem judgment cannot exceed the value
of the res.
Subject Matter Jurisdiction

Federal Question Jurisdiction
1. Subject matter jurisdiction is the power of the court to adjudicate the matter before it.
a. Aka Federal Question Jurisdiction
b. It is a question of authority
2. Relationship between some π, some ∆, and some claim
3. Federal courts decide constitutional issues, not just cases that involve the constitution.
4. USC § 1331. FEDERAL QUESTION
a. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
5. Louisville & Nashville Railroad v. Mottley (where a husband and wife settled a dispute for lifetime passes on the RR, and Congress passed a federal statute that says RR cannot give lifetime
passes, and their complaint asserted that the Federal Rule that the RR will assert does not apply to them, the court held where there is a state based claim, and a federal issue is an anticipated
defense, federal courts do not have jurisdiction, and to have SMJ a suit must arises under the Constitution and laws of the United States).
a. Facts:
i. Mottley’s received a lifetime free rail pass to settle a claim against the railroad.
ii. Later, Congress outlawed all lifetime rail passes and the railroad refused to honors the Mottley’s pass anymore.

iii. The Mottley’s sued in federal court for specific performance to keep their pass (anticipating that the defense of the railroad would be to say that Congress forbade them
from honoring the pass but that such an interpretation of the statute violated the Fifth Amendment)
b. Plaintiff’s Argument: The ∆ and π had a contract for transportation that was made illegal by the Act of Congress, which is in violation of the 5th Amendment, and therefore
deprived the π of property without due process of law.
c. Defendant’s Argument: The Act of Congress made the contract illegal and ∆ cannot be bound to an illegal contract by way of legislation of Federal law.
d. Rational:
i. Only if the original statement of the plaintiff’s cause of action shows that it is based on the Constitution or federal statutes. The Courts held that a federal court couldn’t
have jurisdiction just because the ∆ might use a federal law or the Constitution to defend himself
6. The Well-Pleaded Complaint Rule
a. The well-pleaded complaint rule talks only about the complaint. We look for a federal question on the face of the complaint. If the federal complaint, as filed by the π, does not
state the federal question, then there is no federal question.
i. This is an efficiency rule! You get tons of cases filed every day in federal court, and we need a good solid rule to be able to tell, from the outset, whether or not we have
jurisdiction.
b. Why are anticipated defenses not good enough? It’s related to the efficiency argument. A good lawyer can make a lot of different federal arguments that the defense could make.
But the other side might not make that argument. In fact, sometimes they will strategically not make that argument.
c. It is necessary to determine whether federal element is essential to the π’s case.
7. American Well Works v. Layne & Bowler Co. (where Justice Holmes held that “[a] suit arises under the law that creates the cause of action”).
8. Smith v. Kansas City Title & Trust Co (where alleged “illegal” securities were bonds issued by a federal agency under a federal law that π claimed was unconstitutional, the federal courts held
“arising under” jurisdiction, even though the suit would seem to arise entirely under state law regulating trustees).
Supplemental Jurisdiction
1. A claim may be joined that could not, by itself, invoke federal question jurisdiction or diversity jurisdiction if the claim arises from a common nucleus of operative fact as the claim that
invoked subject matter jurisdiction.
a. Usually the same transaction or occurrence.
2. USC § 1367. SUPPLEMENTAL JURISDICTION
a. The district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of
the same case or controversy.
b. Except as provided in subsections (ii) or as expressly provided otherwise by Federal statute
c. Courts shall not have supplemental jurisdiction over cases that arise under §1332 (based on diversity of citizenship) under certain circumstances.

d. The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —
i. The claim raises a novel or complex issue of State law,
ii. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
iii. The district court has dismissed all claims over which it has original jurisdiction, or
iv. In exceptional circumstances, there are other compelling reasons for declining jurisdiction.
3. Jin v. Ministry of State Security (where the courts held that the defamation claim’s relatedness to the federal RICO claim was not too complicated to outweigh the desire for judicial economy).
a. Action brought by π’s/appellee, 51 Falun Gong practitioners, against the ∆/appellant, China Television Corporation, for violations of their rights under the Constitution and
federal and state laws.
b. The defamation claim was barred by a statute of limitations
c. Broad: There is jurisdiction where the claim shares a common nucleus of operative facts with the other claims, and where the interests of judicial economy, convenience, and
fairness support the exercise of jurisdiction. The court should dismiss the claim where the statute of limitations has expired.
d. Narrow: There is jurisdiction where the defamation claim arises out of an alleged overarching campaign to abridge and nullify the plaintiffs’ rights and liberties, and is closely
related to the racketeering claim (a federal issue), where the plaintiffs’ would ordinarily be expected to try them in one proceeding, and where the complexity of the issue of state
law do not outweigh the court’s interest of judicial economy. The courts should dismiss the defamation claim where the one-year statute of limitations has expired since the date
of publication of the footage (time-barred).
Venue
1. Venue relates to the proper district in which one can bring an action.
2. Within the state or federal judicial system, where, or what venue, is it most convenient to bring a claim?
3. Bottom Line:
a. THERE MUST BE A FORUM AND IT MUST BE ADEQUATE
i. Does not mean it gives you the same chance of winning
ii. Does not mean you will be eligible for the same amount of damages
b. BUT
i. An alternative forum must not be so inadequate that it does not provide any remedy at all.
4. USC § 1391. VENUE GENERALLY
a. a judicial district where any defendant resides, if all defendants reside in the same State,
b. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is
situated, or

c. If a civil action wherein jurisdiction is founded only on diversity of citizenship may be brought only in
i. a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may
otherwise be brought.
d. If a civil action wherein jurisdiction is not founded solely on diversity of citizenship (there is a federal question) may be brought only in
i. a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
e. A defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction.
f. An alien may be sued in any district.
5. Dee-K Enterprise, Inc v. Heveafil Sdn. Bhd. (where a purchaser of rubber thread in US sued international distributors for conspiracy of price fixing and to restrain trade in rubber thread in an
Anti trust action brought under the Clayton act, and the Indonesian companies assert that even if in personam jurisdiction has been established based on minimal contacts, the Clayton act
assures there would be venue only where the defendant is “found” or where it “transacts business”; the Courts hold that general venue statute, 28 USC §1391(d), overrules the special venue
statute, Clayton Act §12).
a. What about the American Defendants:
i. They object to the Eastern District of Virginia, based on §1391(b)
1. Not founded on diversity of citizenship – but on an anti-trust claim (a federal statute).
2. This is why it is not 1391(a)
b. Courts say: §1391(b)(3) applies.
i. a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
ii. π MUST SHOW THAT ∆’s COULD BE FOUND in the eastern district.
c. The facts might suggest that there are indeed sufficient contacts do show they can be “found,” but no specific allegation to that effect has been found in the second amendment of
the complaint.
d. Court allows for limited discovery to determine the facts, which could show the general venue applies.
e. The foreign defendants may be sued in any district.
6. Venue is waived if not raised at the onset of Jurisdiction through a timely objection in a pre-pleading motion or in the answer.
7. USC § 1404. CHANGE OF VENUE (FORUM NON-CONVENIENS) (TRANSFER)
a. For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been
brought.
8. The policy behind this is that while venue may be correct, the parties or witnesses might be greatly inconvenienced by the trial in the original forum.
9. If there is a forum selection clause in a contract, it serves as a factor along with the convenience and the interest of justice in deciding whether to transfer the case.
10. USC §1406. CURE OR WAIVER OF DEFECTS

a. The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.
11. Forum Non Conveniens
a. Where a court dismisses because there is another court that is more convenient in a different judicial system:
i. Only applies where first venue is proper but a better venue exists
1. Cannot transfer between federal and state courts (pursuant to §1404 - if you want to go backwards)
2. Cannot transfer between state courts in different states
3. When better venue is foreign country
b. The Gilbert balancing test is the black letter law of forum non-conveniens. It weighs “private” and “public” factors.
i. The private factors are:
1. The relative ease of access to proof,
2. the availability of witness subpoenas,
3. the cost of getting witnesses, and
4. the possibility of viewing of the premises if called for.
ii. The public factors are:
1. Court congestion,
2. local interest in having local controversies decided at “home”,
3. the forum’s familiarity with substantive law, and
4. unfairness of burdening citizens with jury duty for case unrelated to forum.
c. Piper Aircraft v. Reyno (1981) (where a plane crashed in Scotland and all the people killed were Scottish, and plane was manufactured in the US; the wrongful death action was
brought in CA state court and the ∆’s had the case removed to federal court in CA, then transferred to PA and finally tried to get a forum non conveniens dismissal; the federal
district court granted the motion, but the Third Circuit reversed on the ground that forum non conveniens mustn’t be applied if it will cause the π to go to a forum with less
favorable law for the π. This decision was appealed to the Supreme Court that held the district court ruled correctly that the interests of foreign π’s should be weighted less heavily
than the interests of domestic ∆).
i. Held: in ruling on forum non conveniens motion the court should not give dispositive weight to the fact that the alternative forum is less favorable to π’s
unless the alternative is clearly inadequate such that it would provide no remedy;
ii. (π’s would much rather recover in the US because you get much more money - strict liability in tort, pain and suffering, punitive damages, etc),
iii. Reasons Scotland is better:
1. No presumption in favor of π’s choice of forum when π is foreign (this would encourage onslaught of foreign cases in US Courts)
2. Witnesses and relevant evidence are more easily located in Scotland
3. Claim should be resolved in one trial (difficult impleading third party Δ’s in US)

4. PA courts are unfamiliar with Scottish law (applies to one Δ and not the other)
d. Conzalez (Page 176(b))
i. Cap for wrongful death in Mexico was inadequate. The cost of litigating the case would exceed the remedy.
ii. Economics of litigation sometimes do not make sense.
iii. This purpose of assessing an adequate remedy is not grounds for dismissal.
iv. Egypt was a forum non-convenience for US Citizens due to distance and emotional burden of being in Egypt.
v. Emotional burden and inconvenience to the US citizens outweighed the greater inconvenience of litigating in Egypt.
Diversity of Citizenship / Amount in Controversy

1. USC §1332: DIVERSITY OF CITIZENSHIP; AMOUNT IN CONTROVERSY
a. District courts have original jurisdiction of all civil actions where the amount in controversy exceeds $75,000 AND the controversy is between:
i. Citizens of different states
ii. Citizen of a State and citizens or subjects of a foreign state
b. An alien admitted to the United States for permanent residence is a citizen of the State where domiciled
c. A corporation is citizen of any State it has been incorporated and of State where it has principal place of business
d. Legal representative of decedent’s estate is citizen only of same State as decedent, and legal representative of infant or incompetent is citizen of same State as infant or
incompetent
e. NOTE: The $75,000 amount must be made in “good faith,” meaning that there is a legally tenable possibility that recovery will exceed the jurisdictional amount.
1. Complete Diversity:
a. If one π and one ∆ are of the same state, there is no diversity; no matter how many π’s or ∆’s there are
b. Only necessary when action has commenced.
c. Without complete diversity, the case cannot be brought in federal courts
2. How do we figure out someone’s citizenship?
a. We determine citizenship by determining domicile. Where are you? Do you intend to stay there?
b. Domicile, in turns, means
i. Residence AND
ii. Intent to remain.
3. § 1332 is grounded in the constitutional idea that home state defendants have some kind of advantage, and so out-of-state plaintiffs would be left at a disadvantaged if forced to litigate in out-
of-state forums. On the other hand, we don’t let everything go into federal court, because it would be inefficient.

a. Therefore, we have the “amount-in-controversy” limitation to screen out unimportant cases.

b. The statute also involves the “complete diversity” rule, which says we can’t have participants from the same state on the same side of the “v”.
4. Where there is no diversity jurisdiction –
a. Foreign party may not be a citizen of the US – alien status depends on nationality, not domicile.
i. Redner v. Sanders (π is a US citizen who resides in France, ∆’s are US citizens domiciled in NY, π files a claim in Federal Courts and ∆’s file a 12(b)(1) motion to
dismiss based on lack of subject matter jurisdiction, which is granted and courts hold that a party must be a citizen of a foreign state, not just residing there; π then
asserts that he has domicile in CA but courts held that he failed to factually demonstrate a CA domicile, where neither the π’s affidavit nor his attorney’s brief asserts
the claim of California domicile, nor did he make an attempt to amend the complaint to assert such claim).
b. United States citizen and a resident alien living in the same state as that United States citizen.
i. Saddeh v. Frouki (Where π is a Greek citizen, ∆ is a permanent resident of the United States residing in Maryland whose citizenship is Jordanian, and π sued for breach
of contract in federal court citing diversity jurisdiction, the courts held that there was no diversity jurisdiction between a citizen and a resident alien residing within the
same state).
Removal
1. Rules of Removal:
a. Only Up: removal is a one way street goes only from state to federal; if removal is improper the federal court remands it to the state court
b. Straight Up: we remove only to the federal district embracing the state court where the case was filed
c. Δ’s Only: all Δ’s must agree to the removal; π’s cannot remove
d. Timely: you must remove within 30 days of service of the document that first makes the case removable (§ 1446)
e. Coulda Rule: you can remove a case if it could have been brought in federal court however, two exceptions (apply in diversity cases, not in FQ)
1. § 1441(b): no removal if any Δ is a citizen of the forum (no local Δ rule)

2. § 1446(b): no removal more than one year after the case was filed in state court (stupid because encourages joining a local defendant and dismissing a year later)
f. Supplemental: dist court has discretion to hear
2. USC §1441. ACTIONS REMOVABLE GENERALLY
a. (By ∆ only) Any civil action brought in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place
where such action is pending.
b. (Federal Question) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the
United States shall be removable without regard to the citizenship or residence of the parties.

c. (DIVERSITY) Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such
action is brought.
d. (1 FQ and other non-removable claims may be removed) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by a federal question is
joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its
discretion, may remand all matters in which State law predominates.
3. NOTES:
a. A ∆ can only remove an action that could have originally been brought by the π in the federal courts.
b. Removal will be permitted if a non-diverse party is dismissed from an action, leaving complete diversity between the remaining parties.
4. USC §1446. PROCEDURE FOR REMOVAL
a. (Notice of removal & grounds) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the
United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the FRCP and containing a short and plain
statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
b. (30 days after initial pleading, if a party drops out of action, and there is complete diversity, may be removed unless 1 year after commencement of action) The notice of removal
shall be filed within thirty days after the defendant receives a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or
within thirty days after the service of summons upon the ∆ if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period
is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the ∆, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed
on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
o. (Notice to all adverse party’s & State court) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all
adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until
the case is remanded.
9. USC §1447. PROCEDURE AFTER REMOVAL GENERALLY
o. (Remand after 30 days) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the
notice of removal under section 1446(a).
p. (Court may remand at any time) If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
q. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.
r. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
s. An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise

10. Caterpillar, Inc. v. Lewis (where Lewis sued Caterpillar in state court along with Whayne, a local company, and the insurance carrier for Lewis’s employer became a π to try to subrogate
Caterpillar and Whayne for workers’ comp. Lewis settled with Whayne and Caterpillar moved for removal, saying that the case now had complete diversity between the parties. Lewis
argued that Whayne was still a defendant because Wayne was still being sued by the insurance company. The district court denied Lewis’s objection to removal. Liberty Mutual and Whayne
settled before trial. Caterpillar then won at trial. Upon appeal, the Court held that if there isn’t complete diversity between the parties at the time of removal and the federal courts hear the
case anyway, that once a case comes to trial in federal court, general efficiency considerations would trump fairness considerations in specific cases).
o. You must have jurisdiction at the time the action is initiated. Allowing this case to go forward violates this fundamental rule.
The Erie Doctrine

1. The Federal Courts are required to apply the Substantive law of the State in the exercise its diversity jurisdiction.
2. The Hanna Prong:

a. When there is NOT an Federal Directive on point [This could be any federal rule or statute. It could also be some federal policy],
i. Use state law
b. When there is an Federal Directive on point,
i. If the federal directive on point is consistent with the scope of the Rules Enabling Act, [Hanna, Semtek].
1. Apply the federal directive. [Supremacy Clause].
ii. If the federal directive on point is NOT consistent with the scope of the Rules Enabling Act,
1. Then, apply the Erie prong. [Semtek, Erie]
a. If the state law is purely substantive or bound up with substance
i. Apply the state law.
b. If the state law is NOT purely substantive,
i. Then,
1. If the state procedure is NOT outcome determinative,
a. Apply Federal Rules
2. If the state form or mode (procedure) is outcome determinative AND there is countervailing federal interest [Guaranty
Trust, Hanna, Byrd], (does the practice lead to forum shopping or an inequitable imbalance in the law?)
a. Ignore state law and apply federal rules.
3. If the state form or mode (procedure) is outcome determinative AND there is NOT countervailing federal interest,
a. Apply state law
3. USC §2072. RULES OF PROCEDURE AND EVIDENCE; POWER TO PRESCRIBE [RULES ENABLING ACT]

a. The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including
proceedings before magistrate judges thereof) and courts of appeals.
b. Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
[This ties into an arguably procedural federal directive]
c. Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.
4. Swift v. Tyson (1841) (where the Federal Courts interpreted the Rules of Decision Act (§ 1652) to say (1) that the “law” referred to in that act did not include state common-law, only include
laws written in state statutes, and that the federal courts were free to ignore state unwritten law when hearing cases based on diversity jurisdiction)
5. Erie Railroad v. Tompkins (where Tompkins was hit while walking along side a train track by an open door, and lost and arm, he sued the railroad in the Southern District of New York to try
to take advantage of the rule of Swift v. Tyson, which said that federal court didn’t have to use state common law to decide cases (according to state law, Tompkins would be a trespasser), the
Federal courts held that they must follow and apply both state statutes and state case law in deciding cases unless the case is governed by federal statutes or the United States Constitution,
and overruled Swift where they had misinterpreted the §1652).
a. Forum shopping was a major concern here.
6. Guaranty Trust Co. v. York (where York sued a bond trustee (Guaranty) in a federal diversity action alleging misrepresentation & breach of trust, and NY statute of limitations exists that
would bar the π from recovery in the state courts, and York claims the sol did not bar the suit b/c the suit was based on equity (in cases of equity, federal courts are not bound strictly by the
state’s sol), the appellate court held that the outcome of the case in federal court should be the same as it would be in state court).
a. This is where the outcome determinative test began.
7. Byrd v. Blue Ridge Electric Cooperative (Byrd is an independent contractor who was employed by the ∆ as a construction worker and is injured on the job; he sues for injuries in federal court
under diversity jurisdiction in a tort action. The ∆ contends that Byrd was a statutory employee (i.e. he was doing pretty much what any of the ∆’s other employees were doing), so his only
remedy was workers’ compensation. This is a factual dispute, where, in federal courts, the jury – not the judge provides the finding of facts. The question was whether the state policy of
having the judge decide a particular issue of fact trump the federal rule of having a jury decide in the interest of uniformity of outcome).
a. This case recognizes that a state procedural law should not be upheld where there is a countervailing federal interest
b. Our new test says that we will use the federal rule if it’s uncertain whether a different result would follow from applying the rule instead of the state rule.
c. An attempt to weight the federal v. state interest. Does the federal interest outweigh the state interest?
d. They said, wait a minute, everything may be outcome determinative, and therefore the outcome determinative test is too broad.
8. Hanna v. Plumer (where Hanna (citizen of OH) filed suit against Plumer (MA resident) in federal court on diversity when Hanna was injured in car accident (which happened in South
Carolina), and Plumer is the executor of the negligent driver’s estate; where summons was served according to the FRCP (left copies with Plumer’s wife at her home) and Plumer said that
under state law the service had to be done in-hand, the Federal district court agreed with Plumer – on a summary judgment, and dismissed the case. Hanna appealed, saying the FRCP is the
method you should follow in federal diversity cases, and the Court of Appeals affirmed the lower court’s ruling. Supreme Court, granting certiorari, reversed the judgment and held that
where the state law concerned a procedural matter it does not need to be applied where a countervailing federal rule is constitutional and consistent with the Rules Enabling Act).

a. The Justices believe that Erie stood for trying to curb forum shopping, and therefore, by trying to find whether there is a federal directive on point at the outset of the trial, and
applying the federal directive, will prevent the forum shopping further.
b. There was a federal directive on point, Rule 4(1).
9. Semtek Int’l Inc v. Lockheed Martin Corp. (2001) (where an action was brought in California State Court, removed to Central District Court of California, and dismissed based on California’s
Statute of limitations (on the merits, and with prejudice), and the claim was filed again in Maryland state Courts where the statute of limitations was 3 years (not 2), and the state court
dismissed the case b/c it was barred by California District Courts decision (that was with prejudice). π appealed, the Maryland DCA affirms, and it was appealed once more to the US
Supreme Court, the Supreme Court held that Maryland state courts were not barred from hearing the case where the CA state courts decision would not have been claim preclusive).
a. There was no federal directive on point.
b. It was outcome determinative
c. There was no countervailing federal interest
Pleadings
1. Pleadings serve the function of giving notice to the opposing parties.
2. FRCP Rule 8(a). CLAIMS FOR RELIEF
a. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain:
i. A short and plain statement
1. on the grounds upon which the court's jurisdiction depends
2. AND showing that the pleader is entitled to relief,
ii. AND a demand for judgment for the relief the pleader seeks.
1. Relief in the alternative or of several different types may be demanded.
3. Haddle v. Garrison (1998) (where π’s case was dismissed by district court for failure to state a claim on the grounds that discharge from at-will employment did not create legally cognizable
injury, the Supreme Court reversed and held that the law will allow recovery where a the intent of the statute was not to prevent a deprivation of property in a Due Process sense of person
and property, but simply to prevent intimidation or retaliation, which the π is asserting, and therefore held that a dismissal on a 12(b)(6) motion was inappropriate).
a. Rule: A complaint may be dismissed only if there is no set of facts in support of the π’s claim that would entitle him to relief.
Motions (& Pre-Answer Motions)

1. FRCP 12(a). WHEN PRESENTED
a. Within 20 days after being served with summons or complaint/cross-complaint

i. UNLESS a different time is prescribed in a statute of the United States

b. Unless a different time is fixed by court order, the service of a motion permitted under this rule alters the periods of time as follows:
i. If denied – the responsive pleading shall be served within 10 days
ii. If granted a motion for more definite statement - the responsive pleading shall be served within 10 days
2. FRCP 12(b). HOW PRESENTED [PRE-ANSWER]
a. Prior to filing an answer, the ∆ may file a motion and raise any or all of the following defenses including:
i. Lack of subject matter jurisdiction (MAY BE MADE AT ANY TIME)
ii. Lack of personal jurisdiction
iii. Improper venue
iv. Insufficiency of process
v. Insufficiency of service of process
vi. Failure to state a claim upon which relief can be granted (what you know from the complaint is enough for a grounds of dismissal) (MAY BE MADE AT ANY TIME)
vii. Failure to join a party needed for a just adjudication.
b. The others may only be raised at the time ∆ files a motion or his answer, if the ∆ should choose to raise the defense in his answer.
3. FRCP 12(c). MOTION FOR JUDGMENT ON THE PLEADINGS
a. After the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings.
4. FRCP 12(e). MOTION FOR MORE DEFINITE STATEMENT
a. Where a pleading is so vague or ambiguous that a responsive pleading cannot reasonably be framed, a party may move for a more definite statement before responding.
b. The opposing party has 10 days after notice of an order to obey unless the courts fix a different time.
c. If not obeyed, the courts may strike the pleading.
5. FRCP 12(f). MOTION TO STRIKE
a. If no responsive pleading is permitted, within 20 days after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial,
impertinent, or scandalous matter.
b. Motion to strike may also be made by the courts initiative at any time.
6. FRCP 12(g). CONSOLIDATION OF DEFENSES IN MOTION
a. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party.
b. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party, the party shall not thereafter make a motion based on the
defense or objection so omitted
c. UNLESS it is a motion under 12(h)(2).

7. FRCP 12(h). WAIVER OR PRESERVATION OF CERTAIN DEFENSE
a. A defense of lack of personal jurisdiction, improper venue, insufficiency of process, or insufficiency of service of process is waived
i. If omitted from a motion in the circumstances described in subdivision (g),
ii. OR if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of
course.
b. A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal
defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.
c. Whenever it appears by suggestion of the parties or otherwise that the court lacks subject matter jurisdiction the court shall dismiss the action.
Answer (Responsive Pleading)

1. FRCP Rule 8(b). DEFENSES; FORMS OF DENIALS
a. A party shall state the party's defenses to each claim asserted AND shall admit or deny the averments upon which the adverse party relies.
b. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.
c. The pleader shall specify so much of it as is true and material AND shall deny only the remainder.
d. The pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments
i. The pleader who makes a general denial is subject to the obligations set forth in Rule 11.
2. Zielinski v. Philadelphia Piers (1956) (where π was injured by a forklift he believed was operated by an agent of Δ, and the Δ answered complaint and made a general denial of π’s allegations
(that the forklift, owned and operated by the ∆, was negligently and carelessly managed), but later claimed that the forklift operator was not their agent, the court held that a more specific
denial was necessary in order to warn the π that he had sued the wrong ∆).
a. an accurate denial would have put π on notice that he was suing the wrong party before SOL ran
b. jury will be instructed that agency is presumptively admitted by both parties.
c. Policy: SOL has run for π to file against a different Δ so π would have no redress in violation of principles of equitable estoppel
3. FRCP Rule 8(c). AFFIRMATIVE DEFENSES
a. A party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure
of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice
so requires, shall treat the pleading as if there had been a proper designation.
4. These must be included in the answer or they are waived.

5. Affirmative defenses set forth new facts; basically you are saying, even if all the stuff you are saying is true, I have this fact that might preclude your claim.
6. Layman v. Southwestern Bell Telephone (1977) (where π sued telephone company for trespass for laying telephone wires on her property without permission and Δ answered with general
denial, but at trial Δ raised right of entry by easement, the Court held that an easement is an affirmative defense to trespass and must be set forth in the answer or evidence of the
easement will not be allowed at trial).
a. Rule of Thumb: when the Δ raises a new matter that is not already at issue in the case it should be pled as an affirmative defense. [However, the π had constructive (record) notice
of the easement so is this really something new?]
7. FRCP Rule 8(d). EFFECT OF FAILURE TO DENY
a. Averments in a pleading are admitted when not denied in the responsive pleading.
Amendments & Supplemental Pleadings (Relating Back)

1. FRCP Rule 15(a). AMENDMENTS
a. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served
b. OR if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar,
i. The party may so amend it at any time within 20 days after it is served.
c. Otherwise only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires (whether it is made in good/bad faith, or
would create prejudice).
d. (Response) A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the
amended pleading, whichever period may be the longer, unless the court otherwise orders.
2. Beeck v. Aquaslide ‘N’ Dive Corp. (1977) (where π was injured by a faulty waterslide, and Δ answered complaint admitting that it was the manufacturer of the slide, but a year later (after SOL
had run for filing against proper Δ) Δ moved to amend answer to deny they manufactured the slide, the court held that, in the absence of bad faith or dilatory motive on the part of the
movant, leave to amend is fully within the discretion of the court).
a. Policy: It seems unfair to the π to leave him with no recourse, but imagine the alternative. If Δ went to trial they would have to argue that they had not acted negligently in the
manufacturing of a slide that they did not manufacture.
3. FRCP 15(c). RELATION BACK OF AMENDMENTS
a. An amendment of a pleading relates back to the date of the original pleading when
i. Relation back is permitted by the law that provides the statute of limitations applicable to the action
ii. OR The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading

iii. OR the amendment changes the party or the naming of the party against whom a claim is asserted
1. IF the foregoing provision (2) is satisfied
2. AND within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment
a. Has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits,
b. AND knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against
the party
4. Moore v. Baker (1993) (where π signed a consent form prior to a surgery that went wrong, and π filed complaint on last day of SOL alleging violation of informed consent laws, but later
moved to amend to include negligence claim, the court held where relation back requires that a proposed amendment have its basis in the same conduct, transaction or occurrence set
forth in the original complaint, and where the original complaint concerned actions prior to surgery, the π could not amend the complaint where nothing would put Δ on notice that he
would be sued for negligence).
a. Threshold question: whether the original complaint gave notice to the Δ of the claim that is now being asserted.
b. Π would have to prove completely separate facts for the second claim.
5. Bonerb v. Richard J. Caron Foundation (1994) (where π was a patient of Δ’s rehab center when he fell while playing basketball as part of mandatory exercise program, and his original
complaint alleged negligent maintenance of court; and he later (after SOL had run and π got new attorney) wanted to amend for malpractice, the courts held, where relation back requires
that the operational facts set out in the original complaint are sufficient to put the Δ on notice that the amended claim could be brought, that where the complaint had indicated that
the exercise was mandatory and injury was caused by failure to supervise and instruct, there was sufficient notice that a claim for malpractice).
6. FRCP 15(d). SUPPLEMENTAL PLEADINGS
a. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading sought to be supplemented.
b. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense.
c. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefore.
Special Claims: Requiring and Forbidding Specificity in Pleading

1. FRCP Rule 9. PLEADING SPECIAL MATTERS
a. Capacity or Authority to Sue; Legal Existence
i. In General.
1. Except when required to show that the court has jurisdiction, a pleading need not allege:
a. a party’s capacity to sue or be sued;
b. a party’s authority to sue or be sued in a representative capacity; or

c. the legal existence of an organized association of persons that is made a party.

ii. Raising Those Issues.
To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party’s knowledge.
b. Fraud or Mistake; Condition of Mind
i. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally.
c. Conditions Precedent
i. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done.
d. Official Document or Act
i. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.
e. Judgment
i. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision
without showing jurisdiction to render it.
f. Time and Place
i. An allegation of time or place is material when testing the sufficiency of a pleading.
g. Special Damages
i. If an item of special damage is claimed, it must be specifically stated.
2. Stadford v. Zurich Ins. Co. (2002)
a. Facts:
i. Dr. Stradford (π) is a dentist, and Northern (∆) is an affiliated corporate insurer who issued a policy with the π from August 18, 1999 to August 19, 2000.
ii. The π failed to make payment on the policy’s premiums, and Northern cancelled the policy from October 20, 1999 to December 13, 1999.
iii. On December 6, 1999, π submitted a “no-claims” letter to certify there was no loss during the period not under the policy, continued to pay the premiums, and Northern
reinstated the π’s policy on or about December 17, 1999.
iv. On January 17, 2000, the π filed a claim on the policy. He claims that he came back from vacation to find water dripping from frozen pipes and extensive water
damage. He submitted a claim for $151,154.74, which Northern paid. He then submitted a revised claim for $1,385,456.70, for loss of property and business
interruption.
v. Northern investigated the π’s claimed loss and concluded that the damage occurred during the period the insurance had lapsed.
b. Procedure:
i. Dr. Stradford sued Northern for $1,234,301.96 [the second claim less the amount already paid].
ii. ∆’s counterclaimed, asserting the π had committed fraud and sought the return of the portion of the claim already paid, punitive damages, and investigation expenses.

iii. Π moved to dismiss the ∆’s counterclaim pursuant the Rule 9(b), stating the claims based in fraud did not present a claim with sufficient “particularity”.
iv. The counterclaims were dismissed with leave to amend.
v. ∆’s also moved for summary judgment, stating that the π had breached his contractual agreement by failing to permit the ∆’s to investigate the claim, which precluded
π from recovering.
vi. Motion Granted.
c. Holding: The Court held that it was unclear from the face of the counterclaims whether ∆’s assert Dr. Stradford’s claimed losses are improperly inflated, that Dr. Stradford’s
office was never even flooded, or that the offices flooded, but not during the term of the policy. Therefore the counterclaims did not satisfy the first sentence of Rule 9(b), which
requires that the “time, place, and nature of the [alleged] misrepresentations” be disclosed to the party accused of fraud.
d. Policy: The primary purpose of Rule 9(b) is to afford a litigant accused of fraud “fair notice of the claim and the factual ground upon which it is based.”
Allocating the Elements

1. What issues matter in the lawsuit, and who carries the burden of proof?
a. Gomez v. Toledo (1980)
i. Relevant Facts: π Gomez was employed as an agent w/ the Puerto Rico Police Dept. Upon learning that two other officers had provided false information in a criminal
proceeding he was discharged by ∆ Superintendent of Police Toledo. As a result of filing the report π was transferred to the Police Academy holding a position of lesser
significance. ∆ ordered an investigation which proved the π’s claims as valid. Pet testified at trial to his assertions, and thereafter the ∆ had criminal charges brought
against π. π was acquitted and then sought reinstatement with the force w/ back pay.
ii. Procedure: D. Ct granted ∆ motion under Rule 12 (b)(6); Ct of App Affirmed; S. Ct R and R
iii. Legal Issue(s): Whether in an action under 42 USC 1983, against a public official whose position might entitled him to qualified immunity, a π must allege that the
official acted in bad faith in order to state a claim for relief, or alternatively, whether the ∆ must plead good faith affirmatively?
iv. Court’s Holding: No, π does not have to allege bad faith; because good faith is a defense the ∆ must plead it affirmatively.
v. Rational:
1. §1983 provides that the deprivation of any rights, privileges, or immunities secured by the Constitution and laws there under by any person acting under
color of any statute, ordinance, regulation, custom, or usage, of any State or Territory is actionable.
2. In limited circumstances public officers are entitled to qualified immunity from damage liability under 1983.
3. Nothing in the language of §1983 suggests that in an action against a public official whose position might entitle him to immunity if he acted in GF, a π
must allege Bad Faith in order to state a claim for relief.
4. By the plain terms of 1983 (2) two allegations are required in order to state a cause of action under that statute.
a. π must allege that some person has deprived him of a federal right.
b. he must allege that the person who has deprived him of said right acted under color of state or territorial law.

5. Pet has made both of the required allegations.
Ethical Limitations - Sanctions

1. The court has discretion to impose sanctions, “limited to what is sufficient to deter repetition of such conduct,” against a party who presents a paper to the court in violation of Rule 11
requirements, either on the courts own initiative or on a motion of the opposing party,
2. A party who believes that his opponent has presented a paper in violation of Rule 11 may serve a motion for sanctions on the arty.
a. If the party does not withdraw or correct the matter within 21 days, the moving party may then file the motion for sanctions with the court.
3. FRCP Rule 11. SIGNING PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO THE COURT; SANCTIONS
a. Signature
i. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name or by a party personally if the party is
unrepresented.
b. Representations to the Court
i. The attorney, by presenting to the court a pleading, written motion, or other paper, certifies that to the best of her knowledge, information, and belief formed after an
inquiry reasonable under the circumstances
1. The paper is not presented for any improper purpose (harassment, delay, etc.)
2. The legal contentions therein are warranted by existing law or a nonfrivolous argument for the modifications of existing law or the establishment of new
law
3. The allegations and factual contentions either have, or upon further investigation or discovery are likely to have, evidentiary support
4. Denials of factual contentions are warranted on the evidence or, where specified, are reasonably based on a lack of information and belief.
c. Sanctions
i. In General.
1. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate
sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
ii. Motion for Sanctions
1. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The
motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is
withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing
party the reasonable expenses, including attorney’s fees, incurred for the motion.
iii. Nature of a Sanction
1. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.

4. Walker v. Norwest Corp. (1996)

a. Facts:
i. where an action was filed in diversity by the Walkers against Norwest Corp. for breach of fiduciary duty, and Mr. Massey, the Walker’s attorney, filed a complaint
stating the “π and some of the ∆’s are citizens of different states” (the π’s are from South Dakota and even though one of the ∆’s, Norwest Corp was a Minnesota
corporation, many other ∆’s were from South Dakota),
ii. the ∆’s counsel wrote Mr. Massey a letter stating that the π’s claim showed no grounds for diversity and that they would seek sanctions if he did not dismiss the
complaint, but
iii. Mr. Massey returned a letter acknowledging Norwest’s correspondence but did not respond to the counsel’s request,
iv. Northwest moved to dismiss and for an award of sanctions,
v. the District Court, awarded them both.
vi. The Walkers and Massey appeal, claiming that it was too complicated, in-depth process, that monetary sanctions should not have been awarded, and that the District
Courts abused their discretion in denying requests to amend their complaint.
b. Holding/Rational:
i. The Appellate Court affirmed the judgments,
ii. holding that it was not too much of a burden to discover the ∆’s citizenship (in fact, the burden in doing so has been standard practice),
iii. that it is not the District Courts job to find out what financial hardships Massey was under at the time the sanctions were awarded (Massey did not bring up the issue),
iv. and that Mr. Massey’s request to amend the complaint did not include any names of ∆’s he wished to remove from the complaint).
5. Christian v. Mattell, Inc. (2003)
a. Facts:
i. in an action by Claudine Christian (“copyright owner”) against Mattel (“toy company”) for copyright infringement, where in 1990, Claudine Christian decides to make
a collegiate cheerleading doll, and gets a copyright for the head sculpture of her doll, and Mattel gets a copyright for their doll “Cool Blue Barbie” in 1996.
ii. Claudine alleges that Mattel had significantly copied her doll and sought damages in the amount of $2.4 billion, and various forms of injunctive relief.
iii. Mattel moves for summary judgment, and in support of their motion submitted a 1991 copyright notice on the back of the Barbie’s head.
iv. They claim that, as a matter of law, C.B. Barbie could not have infringed Claudine’s copyright.
v. Mattel has unsuccessful meetings with James Hicks, Claudine’s council, in an attempt to convince him that the complaint was frivolous. Mattel then served
Hicks with a motion of Rule 11 sanctions.
vi. Hicks failed to dismiss his claim and after 21 days, Mattel filed the motion to the district court.
vii. The court ruled that Mattel did not infringe Claudine’s copyright and found Hicks had filed a meritless claim against Mattel and imposed sanctions against Hicks,
pursuant to Rule 11 and for other misconduct during the meetings, in the amount of $501,565 (the cost of Mattel’s attorneys’ fees).

viii. Hicks appealed claiming that misconduct, when non-written, and unsigned, such as discovery abuses, and misstatements made in oral argument, could not have
sanctions pursuant to Rule 11.
b. Holding/Rational:
i. The Appellate Court reversed the orders, pursuant to Rule 11, and remanded the decision to the District Court to delineate the factual and legal basis for its sanction
orders, where the
ii. ∆’s failed to establish the factual basis behind the attorney’s behavior).
iii. While Rule 11 permits the district court to sanction an atty for conduct regarding pleadings, written motions, and other papers that have been signed and filed in a
given case, Fed. R. Civ. P 11(a), it does not authorize sanctions for, among other things, discovery abuses or misstatements made to the court during an oral
presentation.
iv. Rule 11 is not the only power by which a court can sanction the behavior of both the lawyers and the litigants. Litigant bad behavior can be sanctioned by court’s
inherent power. Counsel can be sanctioned under 28 U.S.C. §1927 (pg. 390 Fed. R. Civ. P.)
v. The court has inherent power to sanction bad litigants (the actual parties). Courts’ are required to make a specific finding that conduct was in bad faith.
Discovery & the Adversarial System
Discovery Limitations - Relevance

a. Court tries to encourage => Discovery produces information about the merits of the lawsuit and permits parties to make informed judgments about the strength of their and their
opponent’s positions.
b. Court tries to limit => Discovery costs time and money, it also enables on of the parties simply to wear the other down.
c. Rule 26(b)(1) allows parties, without court approval, to seek discovery “regarding any matter, not privileged, that is relevant to the claim or defense of a party.” If a party shows
“good cause” the court may grant even broader discovery “of any matter relevant to the subject matter involved in the action.”
d. For a piece of info to be relevant to a legal proposition that information must tend to prove or disprove something the law says matters.
e. Davis v. Precoat Metals (2002) (where π/appellant Nicholas Davis (and other π’s) sued their employer ∆/respondent Precoat Metals alleging race and national origin
discrimination and retaliation, when the ∆ (1) exposed the π’s to a hostile work environment, (2) discriminated against certain work assignments, promotions, and discipline b/c of
race, and (3) ∆ retaliated against the π’s after they complained about the discriminatory practices; the ∆ argues that the π’s requests are overbroad, improperly seeks information,
and motions to preclude the π from discovery of other employees; the court held that the π is entitled to discovery regarding other employees complaints where the other
employees complaints may be relevant to establish pretext, where the other employees work at the same manufacturing plant, and where the π’s do not seek any information
regarding other employee’s sex or age discrimination complaints).
i. Rule 26(b)(1) permits discovery into “any matter, not privileged, that is relevant to the claim or defense of any party.”
ii. Information is relative if “the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FRCP 26(b)(1).
iii. The π’s have sought discovery on employees who worked at the same Chicago plant where they worked.

1. McDonnald Douglas Corp v. Green (an employers general policy and practice with respect to minority employment may be relevant to establish pretext).
iv. The π’s are not seeking information in the other employee’s discrimination suits regarding age or sex discrimination nor are they seeking information about
employees outside the Chicago plant.
v. Limitations in Discovery:
1. time-bound: 1998-2002
2. locations-specific: Chicago plant
3. subject-specific: race/national origin
vi. Cannot be too burdensome.
f. Steffan v. Cheney (1990) (where π/appellant Joseph Steffan resigned from the US Naval Academy after an administration board recommended that he be discharged solely on the
basis of π’s statements that he was a homosexual, not that he had engaged in any sexual activity, and files an action against ∆/respondent claiming he was constructively
discharged; the ∆ sought discovery to determine from the π whether he has or had engaged in any homosexual activity during the tenure as midshipman, and π refused to comply,
objecting that the questions were not relevant to the legality of his seperation, and the Court grants ∆ motion for dismissal for the π’s failure to comply with discovery order,
pursuant to Rule 37(b)(2), the appellate court held that the trial court erred in finding the inquiry into homosexual conduct relevant in determining whether there was an invalid
discharge).
i. No sanction may be upheld if its imposition was based upon an error of law.
ii. The π was dismissed from naval academy based on his admission of homosexuality, not b/c of any evidence of misconduct.
iii. The questions of homosexual conduct were not relevant to the decision to discharge the π, because a judicial review of an administrative decision is confined to “
the grounds … upon which the record discloses that the action was based.” SEC v. Chenery Corp.
iv. His reinstatement for an invalid separation does not put into issue the question whether he engaged in potentially disqualifying conduct unless that conduct was the
basis for his separation. White v. Secretary of the Army
Discovery Limitations – Privilege

a. The law creates certain privileges, which protect information from certain sources; the privileges do no block the underlying facts.
Trial Preparation
i. Hickman v. Taylor (where ∆’s Counsel interviewed witnesses privately about tugboat accident, and π later tried to discover the materials prepared from the
conversation and counsel for Δ, but ∆ resisted saying that materials were privileged as trial preparation, the Court held that Lawyers’ (only) work product, prepared
in expectation of litigation, cannot be discovered unless not available elsewhere, that impressions and strategies of lawyers will always be exception protected from
discovery, and an adversary cannot get access to material if they could have interviewed witness but didn’t (i.e. information available elsewhere)).
1. Policy: Other party should not be benefit from work and wits of other side in adversarial system.

2. The rules establish a broad sense of discovery, however, they cannot be interpreted too broadly that they would remove the needed adversarial system,
which would provide for a secure the just, speedy, and inexpensive determination of every action.
3. The ∆’s council is not a party in the lawsuit; therefore the π’s request for an interrogatory is not even proper.
4. Court wishes to maintain the work-product of the attorneys. There is a distinction between the information in attorney-client privilege (which is absolute
and non-discoverable), and the attorney’s work-product protection is presumptive but refutable.
Experts
ii. There are two kinds of experts: testifying and consulting. You decide whether to have an expert testify at trial depending on what he or she will say and whether he
or she will be an effective witness. The consulting witnesses can only be discovered in exceptional circumstances. You can get anything you want out of the
testifying expert.
iii. Discoverable
1. Thompson v. The Haskell Co. (M.D. Fla., 1994, P447) (where π alleges wrongful termination that caused depression on June 5, 1992, 10 days after is
examined by Dr. Lucas, and on September 23, 1993 filed a complaint against her employer. The ∆ seek to discover an examination report provided by Dr.
Lucas to π’s previous council, but π motions for a protective order, citing 26(b)(4) that protects psychological records, the court dismissed the π’s protective
order motion where the report was discoverable under Rule 26(b)(4) under the circumstances presented in the case, where π’s mental state 10 days after the
incident it essential to the case, where the ∆ could not obtain the information contained in Dr. Lucas’ report by other means, and where “independent
investigations” pursuant to Rule 35 would not contain equivalent information).
iv. Not Discoverable
1. Chiquita Intl Ltd. V. M/V Bolero Reefer (SDNY, 1994, P448) (where π sued Δ, alleging loading crane malfunctioned leaving 43,000 boxes of fruit to be
disposed and that the fruit that did make it onto the boat was damaged, and π hired a marine surveyor to examine boat shortly after it arrived. The π denied
∆’s request to discover the surveyor’s deposition and production of the file he assembled in connection with the inspection, asserting that he is a non-
testifying expert, and Δ moves to compel discovery. The court held that the deposition was not discoverable where that facts as well as opinions of experts
are not discoverable under 26(b)(4), where the real distinction is information obtained in the normal course of business v. information obtained in
preparation of an expected litigation, not opinion v. fact, and where this information does not meet exceptional circumstances b/c Δ could have sent own
expert. The court further held that the π had to produce documents from Mr. Winter’s file that did not reflect his observations and opinions or that are
otherwise privileged where information does not become exempt from discovery merely because it is conveyed to a non-testifying expert).
Controlling Against Discovery Abuse

1. Three basic patterns to abuses:
a. Too little discovery
i. When one party refuses or resists appropriate requests for discovery

ii. Refusal to cooperate with justifiable requests can subject a party to sanctions
b. Too much discovery
i. When one party seeks more discovery than the case justifies so as to discourage or hamper the opponent
ii. If the information requested is irrelevant or privileged, one may simply decline to answer.
iii. Under rule 26(g), a lawyer must certify that discovery is not “unreasonable or unduly burdensome or expensive, given the needs of the case”
iv. This might subject the lawyer to sanctions.
c. Mismatched discovery
i. When the two parties have significantly unequal wealth
2. Thompson v. Department of Housing & Urban Development (2001) (where π moves for discovery of 75 yrs worth of documents in housing discrimination claim, the Ct held that they will not
strictly enforce 26(b)(1), and that the lawyers must use factors in 26(b)(2) as balancing test to limit discovery, and tha the party’s should hold conference, start w/ first few yrs then decide
what else is necessary).
3. Poole v. Textron, Inc. (D. Md., 2000,P 457) (where π moves for sanctions, including the award of atty’s fees related to 3 substantive discovery motions pusuant to 26(g) and 37, and other
sanctions (these covered six discovery abuses, motion to compel, motion to det sufficiency of answers and objections to request for admissions), the court awards sanctions based on these
two rules but limits to atty’s fees b/c finds although stonewalling, much caused by lack of diligence but not bad faith).
a. Finds egregious b/c corp vs. individual
Summary Judgment
1. FRCP Rule 56. SUMMARY JUDGMENT
a. For Claimant
i. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the
commencement of the action OR after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary
judgment in the party's favor upon all or any part thereof.
b. For Defending Party
i. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting
affidavits for a summary judgment in the party's favor as to all or any part thereof.
c. BIG ONE Motion and Proceedings Thereon
i. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The
judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

d. Case Not Fully Adjudicated on Motion

i. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy
and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial
of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
e. BIG ONE Form of Affidavits; Further Testimony; Defense Required
i. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a
motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse
party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
f. When Affidavits are Unavailable
i. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
g. Affidavits Made in Bad Faith
i. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose
of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits
caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
2. Celotex Corp v. Catrett (1986) (where π sued Celotex, claiming that the death of her husband was a result of his exposure to products containing asbestos; and a motion for summary
judgment was granted because “there was no showing that the π was exposed to the ∆’s product in the District of Columbia or elsewhere within the statutory period,” but reversed on appeal
on grounds that Δ failed to produce evidence supporting the lack of a genuine issue concerning any material fact, the Supreme Court held that the burden on the moving party may be
discharged by “showing” that there is an absence of evidence to support the nonmoving party’s case”).
a. One of the principle purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.
b. It is an integral part of the FRCP which are designed “to secure a just, speedy and inexpensive determination of every action”
c. Brennan Dissents:
i. Decision is right but provides insufficient guidance,
ii. If the burden of persuasion at trial is on the nonmoving party,

1. The moving party may satisfy Rule 56’s burden of production in 2 ways:
a. The moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim
b. The moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.
i. A conclusory assertion that the nonmoving party has no evidence is insufficient
ii. A party who moves for summary judgment on the grounds that the nonmoving party has no evidence must affirmatively show the
absence of evidence on the record.
2. The nonmoving party may then defeat a motion for summary judgment that the nonmoving party has no evidence by calling to the court’s attention to
supporting evidence in the record that was overlooked or ignored by the moving party.
3. Bias v. Advantage International Inc. (1990) (where a basketball player overdoses on cocaine; family claimed breach of contract against agent for failure to get insurance policy; Δ argues he
couldn’t have gotten a policy because he was a drug user; family said he doesn’t use drugs but teammates say he did, the court granted ∆’s motion for Summary Judgment, where there is no
genuine issue of material fact because the specific evidence of teammates trumps the general denials).
Incentives to Litigate – Remedies/Financing

1. So you want to go to court? Well, you better ask yourself two fundamental questions:
a. What is the remedy? Are you going to get something for your client?
b. Where is the financing? How is the litigation going to get paid for?
1. If there’s nothing “at the end of the rainbow” for yourself or your client, you won’t proceed.
2. There are two types of remedies: specific and substitutionary.
a. Specific remedies compel someone to do something.
b. Substitionary remedies are all about money.
i. Compensatory Damages
ii. Punitive Damages
Injunctive Relief
1. Sigma Chemical Co. v. Harris (1985)
a. Statement of the Case: Action by chemical company against ex supplies purchaser employee for breach of non-compete clause, where the employee violated requirements to
forgo working for competitors for 2 years.
b. Facts and Procedural History: Harris was working for Sigma Chemical Co., a company that sells chemicals, and signed a non-compete agreement stating he would not work for
a competitor for 2 years after leaving Sigma. Much of the chemicals sold are bought from suppliers in the US, many of them “mom and pop” operations. Sigma would match the

right supplier with the product sold by Sigma. Sigma’s supplier’s send out catalogues and advertisements to many buyers, including Sigma’s competitors, and although the
chemicals and their names are in public domain, Sigma’s knowledge of which supplier supplies a particular chemical at a particular quality to satisfy specific purposes at the right
price are not in the public domain. When Harris left Sigma, he sent out resumes to other pharmaceutical companies, including ICN, one of Sigma’s competitors. He was offered a
job at ICN, which he accepted. Harris lied to ICN about his previous employer, and used information acquired during his employment with Sigma to suggest new sources of
various chemicals. After being ordered to stop working with ICN, he violated this temporary restraining order.
c. Chief Judge Nangle: To determine the validity of a restrictive covenant, one must determine if (1) the covenant must be reasonably necessary to protect the employer’s legitimate
interest; (2) the covenant must be reasonable in terms of temporal scope; and (3) the covenant must be reasonable in terms of geographic scope. THIS IS VALID AND
ENFORCEABLE.
i. In determining the propriety of permanent injunctive relief: one must balance the hardship of the π if relief is denied as opposed to the hardship to the π if it is granted.
Also, the π must be threatened by some injury, of which there is no adequate legal remedy. SIGMA IS ENTITLED TO INJUNCTIVE RELIEF. The π stands to lose
part of a competitive edge that has taken over 40 years to develop. The harm to the ∆ would be substantial as well, having to not work with ICN for 2 years. However,
other employees of Sigma had little trouble securing jobs with other companies, which were not competitors. ALSO, the balance of equities does not favor Harris b/c
he violated the agreement.
Provisional Remedies
1. Relief pending final adjudication of the dispute.
2. Granted before the case has been heard on the merits, based on incomplete information.
3. Two issues arise:
a. How should the court decide whether to grant temporary relief when all relevant information is not yet available?
b. When does the curtailment of ordinary procedures in granting provisional relief amount to a denial of due process?
4. Examples are Preliminary Injunctions and Temporary Restraining Orders.
5. William Inglis & Sons Baking Co. v. ITT Continental Baking Co. (1976)
a. Statement of the Case: Antitrust action by π/appellant Inglis, baking company, against various competitors, claiming that the ∆’s violated the Sherman, Robinson-Patman, and
Clayton Act’s, and various state laws, where the π contends the ∆’s are guilty of discriminatory and below-cost pricing of their “private-label” bread products.
b. Facts and Procedural History:
i. ∆’s defend the π’s allegations by asserting that their bread prices were established in a good faith effort to meet competition.
ii. π moves for preliminary injunction in the northern CA market against five of the ∆’s.
iii. The District Court stated that π was entitled to preliminary injunction if they found:
1. The π will suffer from irreparable harm if the injunctive relief is not granted
2. The π will probably prevail on the merits

3. In balancing the equities, the ∆’s will not be harmed more than the π is helped in the injunction
4. Granting the injunction is in the public interest.
iv. Motion is denied; DC has “serious reservations as to the probability of success on the merits.”
v. π appeals.
vi. Appellate Courts vacates and remands.
c. Rational:
i. The grant or denial of a preliminary injunction is subject to reversal only if the lower court based its decision upon erroneous legal premise or abused its discretion.
ii. AC is unable to find an abuse of discretion in its conclusion that π failed to satisfy the standard for granting a preliminary injunction.
iii. BUT, there is an alternate test that the AC adopts.
iv. “one moving for a preliminary injunction assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that
serious questions are raised and the balance of hardships tips sharply in his favor.”
v. AND “it is not necessary that the moving party be reasonably certain to succeed on the merits. If the harm that may occur to the π is sufficiently serious, it is only
necessary that there be a fair chance of success on the merits.”
vi. Remanded for the lower court to apply this test.
6. Rule 65. INJUNCTIONS AND RESTRAINING ORDERS
a. Preliminary Injunction.
i. Notice.
1. The court may issue a preliminary injunction only on notice to the adverse party.
ii. Consolidating the Hearing with the Trial on the Merits.
1. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the
hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial
record and need not be repeated at trial. But the court must preserve any party’s right to a jury trial.
b. Temporary Restraining Order.
i. Issuing Without Notice.
1. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
a. specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and
b. the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
ii. Contents; Expiration.
1. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state
why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry “not

to exceed 10 days” that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer
extension. The reasons for an extension must be entered in the record.
iii. Expediting the Preliminary-Injunction Hearing.
1. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all
other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the
party does not, the court must dissolve the order.
iv. Motion to Dissolve.
1. On 2 day’s notice to the party who obtained the order without notice, or on shorter notice set by the court, the adverse party may appear and move to
dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.
c. Security.
i. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the
costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give
security.
d. Contents and Scope of Every Injunction and Restraining Order.
i. Contents.
1. Every order granting an injunction and every restraining order must:
a. state the reasons why it issued;
b. state its terms specifically; and
c. describe in reasonable detail, and not by referring to the complaint or other document, the act or acts restrained or required.
ii. Persons Bound.
1. The order binds only the following who receive actual notice of it by personal service or otherwise:
a. the parties;
b. the parties officers, agents, servants, employees, and attorneys; and
c. other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).
Compensatory Damages
1. Economic Damages
2. Pain and Suffering
3. Emotional Distress

Punitive Damages
1. The purpose of punitive damages is to punish, which is not a traditional element of our civil justice system. Typically, civil lawsuits aren’t about punishment. Largely we leave punishment to
criminal law. There are reasons why: there are significant differences in the way these cases are handled.
2. Purposes of Punitive Damages
a.To create incentive for injured party to sue, especially in small damages cases; “small attorney generals” argument;
b.Good deterrents
c.Punishment for behavior
2. State Farm v. Campbell (where Δ appeals $145 mil of punitive damages on a $185 K claim, arguing that excessive punitive damages violate the 14th Amendment, the Supreme Court held that
the punitive award was neither proportional nor reasonable to the wrong committed. It was an irrational and arbitrary deprivation of property of the ∆).
a.Justice Kennedy:
i. Compensatory damages are “intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.”
ii. Punitive damages aim at deterrence and retribution.
iii. In determining the punitive damages on must consider
1. the degree of reprehensibility of the ∆’s misconduct;
2. the disparity between the actual and potential harm suffered by the plaintiff and the punitive damages awarded; and
3. the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.
iv. The type of harm must be considered in determining the reprehensibility of the ∆. The π has already been awarded compensatory damages so the punitive damages
must represent punishment as deterrence for such reprehensible misconduct. Punitive damages were in order and a question exists what more modest amount of
damages should be awarded.
v. As a general rule, punitive damages are not awarded for actions outside of the state. So rewarding Campbell for the nation-wide unlawful acts would be outside the
states jurisdiction. These acts were also independent of Campbell’s claim, were outside of Campbell’s harm, and cannot be awarded to Campbell. Due process would
not allow this application of punitive damages. Evidence as to a third-party lawsuit for other acts by State Farm were introduced at great length, showing State Farm
was punished for acts independent of Campbell’s suit.
vi. Single digit multipliers are more likely to comport with due process. While still achieving the State’s goals of deterrence and retribution, than that of 145 to 1, as used
in this case.
vii. The wealth of deterrence cannot justify an otherwise unconstitutional punitive damage award.
viii. The most relative civil sanction under Utah law for a similar suit to Campbell’s was $10,000 for an act of fraud.
Financing Litigation
1. Generally, who pays for the lawyers work?

a. The client
b. The opposing party
c. Society generally (via subsides)
d. The lawyer herself (may do work for free)
2. The American Rule: Each party pays its own legal fees.
a. A winning litigant has to subtract from any damages the amount charged to his lawyer.
b. Allows litigants, typically π’s, with tenable but less than certain cases to invoke the legal system without fear of having to bear the expense of both party’s fees.
c. Unless frivolous claim or answer
d. The Hourly Fee
i. Single most common financing mechanism
ii. Lawyer may spend too much time on a case.
e. Flat Rates
i. Lawyer charges a set amount for a particular kind of work.
ii. Underestimates are possible.
3. English Rule: the losing party pays both its own fees and those of the other side.
a. Compensates the winner
i. Damages and compensation for litigation costs.
4. Insurance
a. Many times either side will not have to pay anything because they have a form of insurance that “spreads” the costs of litigation among other similar situated persons.
5. Contingency Fee
a. The lawyer typically agrees to provide legal representation, with the fee to be paid from the proceeds of any settlement or recovery.
b. Usually the lawyer agrees to forgo a fee entirely if there is no recovery.
c. Therefore, the client will not suffer out-of-pocket expenses for lawyer fees.
d. Client may be more willing to bring a case where recovery is doubtful.
e. Lawyers might also be more selective in which clients cases they select, weeding out the ones less likely to succeed.
6. Public Subsides and Professional Charity
a. There are two main groups of persons who are pretty much without access to representation
i. Persons with small claims
ii. Persons without liquid assets who are nonetheless sued.
1. Holdover tenants
2. Spouses and parents sued for divorce and child custody

b. A lot of representation is done by volunteers operating outside formal organization

i. Lawyers who donate their time either as a professional obligation or as a personal act of charity
c. Many institutions will finance litigation
i. Legal Aid
ii. Racial, environmental or other advocacy groups
7. From Fee Spreading to Fee Shifting
a. The Common Fund
i. Shares fees among similarly situated persons rather than shifting them to the opposing party
ii. When other similarly situated persons benefit from a π’s lawsuit.
iii. The original π could recover part of his attorney’s fees from the fund that his efforts had created.
iv. Important in class action suits
v. All who benefit share the costs
b. By Contract
i. Fee shifting arising from contractual agreements.
ii. The K may say that the loser pays the winning party’s legal fees.
iii. Loan agreements an leases often have these clauses.
c. By Common Law
i. Exceptions to the American Rule
1. Such as when the π has brought a groundless suit or some form of malicious prosecution.
ii. In such cases the π may have to pay the ∆ing party’s attorney’s fees.
d. By Statute
i. Such statutes authorize courts to award fees to parties “in any action which has resulted in the enforcement of an important right affecting the public interest.”
ii. May cover such cases as mine safety, truth in lending, consumer product safety, endangered species, and civil rights [42 USC §1988(b)].
e. Evans v. Jeff D. (S.Ct., 1986, P 302)
i. Facts: A class action was filed against Idaho on behalf of handicapped children. The class was represented by Idaho Legal Aid. The state offered a settlement that
included a waiver by the class of any claim to attorney’s fees. The attorney for the class felt that he should accept because the settlement would give them a better deal
than they could have gotten at trial. However, Idaho Legal Aid didn’t want the attorney to accept the offer, because it meant that the organization wouldn’t get any
money. The class argued that the offer including the fee waiver was coercive and shouldn’t be upheld by the court. The district court, however, approved the
settlement and denied attorney’s fees and costs.

ii. Procedure: The Court of Appeals reversed the district court’s ruling, saying that “a stipulated waiver of all attorney's fees obtained solely as a condition for obtaining
relief for the class should not be accepted by the court.” The state of Idaho appealed to the Supreme Court.
iii. Issue: Do federal district courts have the power to approve the waiver of attorney’s fees?
iv. Rule: Rule 23(e) requires court approval of settlements of class actions. The Fees Act doesn’t prohibit all settlements conditioned on the waiver of fees.
v. Analysis: The Court finds that the district court did not go over the line in approving the fee waiver in the context of a settlement favorable to the plaintiffs.
vi. Conclusion: The Supreme Court reversed the Court of Appeals and reinstated the ruling of the district court that the attorney’s fees could be waived.
f. Buckhannon Board and Care Homes v. West Virginia Dept. of Health and Human Resources (S.Ct., 2001, P302)
i. Facts – π operates an assisted living facility and that took in persons who were not sufficiently ambulatory to get out of a burning building, a state regulation. ∆ orders
closure of the resident home within 30 days. П sues Δ for injunctive relief. Before suit settled, West Virginia Govt. changes law so claim is moot. П wants fees as
“prevailing party”.
ii. Holding: No fee shifting here where statute says only when judgment entered. Interpret narrowly to prevent 2nd round of litigation on fees and frivolous claims.
8. FRCP 68: If П offered settlement and gets less than that offer at trial, by losing or just lower award, then must pay costs, not including attorney’s fees, to Δ.
9. Rule 68. OFFER OF JUDGMENT

a. Making an Offer; Judgment on an Accepted Offer.
i. More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the
costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of
acceptance, plus proof of service. The clerk must then enter judgment.
b. Unaccepted Offer.
i. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to
determine costs.
c. Offer After Liability Is Determined.
i. When one party’s liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an
offer of judgment. It must be served within a reasonable time, “but at least 10 days,” before a hearing to determine the extent of liability.
d. Paying Costs After an Unaccepted Offer.
i. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.


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Rule 1.

Scope and Purpose

Does the State have jurisdiction? 2

Rule 3. Commencement of Action 1

2. Discovery Limitations – Privilege 31

Does the State have jurisdiction?

Requirements of In Personam Jurisdiction:

Rule 3. Commencement of Action 2

2. Corporation is incorporated in the forum

Rule 3. Commencement of Action 3

Rule 3. Commencement of Action 4

d. ∆ is present in the forum state and personally served with process

e. ∆ is domiciled within the forum state

Rule 3. Commencement of Action 5

Modern Due Process Standard:

Rule 3. Commencement of Action 6

Rule 3. Commencement of Action 7

Rule 3. Commencement of Action 8

Rule 3. Commencement of Action 9

State Statutory Limitations (Long Arm Statutes)

Rule 3. Commencement of Action 10

Requirements of In Rem/Quasi In Rem Jurisdiction

Rule 3. Commencement of Action 11

Subject Matter Jurisdiction

Rule 3. Commencement of Action 12

Rule 3. Commencement of Action 13

Rule 3. Commencement of Action 14

10. USC §1406. CURE OR WAIVER OF DEFECTS

Rule 3. Commencement of Action 15

Rule 3. Commencement of Action 16

Diversity of Citizenship / Amount in Controversy

Rule 3. Commencement of Action 17

a. Therefore, we have the “amount-in-controversy” limitation to screen out unimportant cases.

1. § 1441(b): no removal if any Δ is a citizen of the forum (no local Δ rule)

2. USC §1441. ACTIONS REMOVABLE GENERALLY

Rule 3. Commencement of Action 18

Rule 3. Commencement of Action 19

The Erie Doctrine

2. The Hanna Prong:

Rule 3. Commencement of Action 20

Rule 3. Commencement of Action 21

Motions (& Pre-Answer Motions)

a. Within 20 days after being served with summons or complaint/cross-complaint

Rule 3. Commencement of Action 22

2. FRCP 12(b). HOW PRESENTED [PRE-ANSWER]

3. FRCP 12(c). MOTION FOR JUDGMENT ON THE PLEADINGS

4. FRCP 12(e). MOTION FOR MORE DEFINITE STATEMENT

Rule 3. Commencement of Action 23

7. FRCP 12(h). WAIVER OR PRESERVATION OF CERTAIN DEFENSE

Answer (Responsive Pleading)

3. FRCP Rule 8(c). AFFIRMATIVE DEFENSES

Rule 3. Commencement of Action 24

Amendments & Supplemental Pleadings (Relating Back)

Rule 3. Commencement of Action 25

Special Claims: Requiring and Forbidding Specificity in Pleading

Rule 3. Commencement of Action 26

c. the legal existence of an organized association of persons that is made a party.

Rule 3. Commencement of Action 27

Allocating the Elements