CivPro

Litigation—Prejudgment Seizure and Post Judgment Remedies

A. Prejudgment Seizure
B. Post Judgment Remedies
1. Damages
2. Equitable Remedies
C. Cost of Litigation
D. Private Ordering Through Alternatives to Litigation

Describing and Defining the Dispute

RULES OF PLEADINGS
A. Purpose of Pleading Requirements
1. Notice to ∆
2. Notice to the court
3. Deciding the merits
a. has π adequately pled the elements of a claim? ; Factual basis to apply the law
B. Must state ultimate facts = a cause of action (Code Pleadings)
1. Not legal conclusions (too vague) or mere evidence (too detailed)
2. followed by some states (Cali)
3. Gillipsie v. Gdyr (trespass, false imprisonment)—must state: what, who, when, where
C. Rule 8(a)—elements for claim for relief
1. Jurisdiction: Short and plain statement for jurisdiction
2. Claim: Short and plain statement of facts for showing entitled to relief—NOTICE
a. Ex: elements for a claim of negligence (Duty, Breach, Proximate Cause, Injury)
b. Rule 8 is satisfied if ∆ is notified of nature of the claim (Board of Harbor Comiss.— problem of
specificity only need enough facts to give notice)
3. Relief: Demand for judgment (relief sought)
4. Purpose is to give notice; doesn’t have to state cause of action (federal)

DESCRIBING AND TESTING THE PLAINTIFF’S CLAIM

A. Consistency and Honesty in Pleading
1. Inconsistent Allegations—Rule 8(e)
a. FRCP 8(e)(2) “A party may also state as many separate claims or defenses as the party has regardless
of consistency.”
b. McCormick (dram shop, wife files suit)—claims mutually exclusive, but both satisfy Rule 8 so can be
brought together
i. complaint to best of π’s knowledge (Rule 11)
ii. prevents inconsistent results from sep lawsuits
2. Signature Certifies—Rule 11
a. All pleadings, written motions, etc. shall be signed—Rule 11(a)
b. Rule 11(b)—by presenting pleading to ct, attorney is certifying that to the best of his knowledge
i. no improper purpose for the document, such as to harass
ii. legal claims warranted by existing law, or nonfrivolous arg to change the law
iii. factual allegations have evidentiary support, or likely will after discovery
• Zuk (copyright case)
 iv. denials are warranted on evidence, or reasonable lack of information or belief
c. Remedy: Sanctions—Rule 11(c)
i. limited to what is necessary to deter future conduct
ii. if attorney violates Rule 11(b), sanctions can be brought by motion or courts initiative (after
notice); discretionary
iii. shall be imposed on law firm—Rule 11(c)(4)
iv. Safe Harbor Provision—Rule 11(c)(2)—party has 21 days to withdraw or correct mistake
• cant be sanctioned without being warned
B. Scrutinizing the Substantive Sufficiency of Plaintiff’s Claim—Rule 12(b)(6)
1. Rule 12(b)(6)—∆ may move for motion to dismiss for failure to state a claim upon which relief can be
granted
a. if issue of material fact, motion must be denied
2. Courts usually give at least one chance ot amend
3. If π choses not to amend has right to appeal, but waives right to amend
a. Mitchell (premise liability case; guy shot in truck parked on street)
C. Heightened Requirements for Specificity—Rule 9
1. Fraud and mistake require heightened pleadings
2. Strong Inference of Intent: complaint will survive if a reasonable person would deem the inference of
scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.
a. Ross & Teallbs
D. Current Application of Rule 8(a)(2) Pleading Requirements

DEFENDANT’S RESPONSE
A. Pre-Answer Motion—Rule 12(b)
1. Rule 12(b)(6) Defenses—all are procedural, but (6) which goes to merits
a. (1) no Jurisdiction
b. (2) no jurisdiction over the person
c. (3) not proper venue
d. (4) insufficiency of process
e. (5) insufficient service of process
f. (6) failure to state a claim
g. (7) failure to join a nec. party under Rule 19
2. Pre-answer Motion is alternative to answering complaint; beneficial if answer will require ∆ to admit
damaging allegations in the complaint
a. if motion in pre-answer is granted, ∆ might never have to file an answer
3. Optional-all defenses can also be raised in complaint; However all possible defenses must be raised
together, or possibly waived; can’t raise another pre-answer motion—Rule 12(g)
4. Rule 12(g)-(h): set out consequences of not raising Rule 12(b); burden on ∆ to raise b/c basic defenses we
want them to raise them early to prevent wasted judicial resources
a. (2)-(5) “Disfavored Defenses:” waives right to raise if forget to include in pre-answer motion (or in
answer, if no pre-answer motion made)—Rule 12(h)(1)
b. (6)-(7) “Favored Defenses:” sometimes waivable; can be made in any pleading, motion for judgment
on the pleadings, or trial on merits—Rule 12(h)(2)
c. (1) “Most Favored Defenses:” not waivable; can raise lack of jurisdiction at any time—Rule 12(h)(3)
5. Rule 12(e) Motion for a More Definitive Statement—where complaint is so vague its unintelligible (Board
of Harbor Commissioners—∆ motion denied only notice required) rarely used
B. Failure to Answer—Default
1. ∆ has 20 days after being served to answer complaint. (Rule 12(a)(1)(A)) If he fails to do so will enter
default judgment and then only has right to trial on damages
 2. Rule 55(c)—courts may set aside an entry of default judgment for good cause, based on 3 factors:
a. Has π been prejudiced? (delay doesn’t count)
b. Does ∆ have a meritous defense? (Would he be deprived his day in court?)
c. Did culpable conduct of ∆ lead to default?
i. intent to thwart judicial procedings
ii. reckless disregard for efficiency
iii. Shepard Claims Service (attorney went on vacation and didn’t read secretary’s letter for
extension)—policy arg for deciding cases on merits over any inconvenience to ct or π; Default
can’t be used to discipline attorney’s
C. The Answer
1. Admitting or Denying the Averments
a. ∆ must admit or deny all allegations by opposing party—Rule 8(b)(1)
b. general (including jurisdiction) or specific denials—Rule 8(b)(3)
c. If a ∆ lacks sufficient knowledge to form a belief about the truth of an allegation, must state so and
counts as a denial—Rule 8(b)(5)
i. However, a denial based on lack of information will be considered an admission if ∆ should have
known because had access or control over information (Crompton & Knowles—terms of
agreement and effect on liability were within ∆’s control)
2. Affirmative Defenses
a. even if true, there is an explanation; brings up new material (issue wouldn’t be addressed by simply
denying)
b. Rule 8(c) List of ex—contributory negligence, statute of frauds, estoppel, duress....
i. If an affirmative defense is not pleaded, the issue is not in the case, and evidence relating to it is
not admissible at trial.
3. Counterclaims
a. Compulsory—Rule 13(a)—if counterclaim arises out of same transaction, then it is compulsory and
must be raised or its waived (would same evidence support both claim & counterclaim?)
i. Supplemental jurisdiction overrides subject matter jurisdiciton. If counterclaim is compulsory, then
a state claim can be properly heard in fed ct even if it would not normally have jurisdiction.
b. Permissive—Rule 13(b)—party can still raise permissive counterclaims (not out of same transaction)
but only if there is proper jurisdiction; courts may sever if too complicated (b/c additional evidence
needed)
i. Wigglesworth (union meeting vs press conf.)—brought defamation as counterclaim to violation of
federal labor laws; fed ct held didn’t have proper jurisdiction over state issue of defamation
because was a permissive counterclaim.
VOLUNTARY DISMISSAL
A. Rule 41(a)(1)—liberal standard in early stages of litigation; allows π to dismiss claim before ∆ answers if
thinks doesnt have a case anymore

AMENDMENTS TO PLEADINGS
A. Permission to Amend (to change legal theories or factual allegations)
1. “As a Matter of Course”—Rule 15(a)(1)—free to amend at least once anytime before ∆ answers (usually
21 days)
2. With Leave of Court—Rule 15(a)(2)—otherwise, party may amend only with courts permission or ∆’s
consent;
3. leave to amend must be freely given when justice requires; Purpose: to try cases on merits rather than
procedural technicalities
a. Reasons for Denial of Amendment
i. If no reason couldn’t have been done earlier, and will prejudice to ∆ (last min)
ii. asserts a legally insufficient claim for relief
iii. Prejudice to other party, b/c loss of evidence, or done in bad faith
 iv. Court will consider if party has already had a chance to amend and failed to do so
b. Courts are stricter on ∆ than π
i. David v. Crompton & Knowles—∆’s motion to amend an answer was denied because it prejudiced
π who had relied on that answer and was now barred by statute of limitations from suing another
party
4. Time of response to amendment: has 14 days or time left from orig complaint, whichever is later Rule
15(a)(3)
B. Relation Back of Amendments
1. Rule 15(c)—in order for an amended claim to relate back to date of original complaint, and eliminate
statute of limitations problems for changing named ∆, three requirements must be met:
a. Must be from same transaction as original complaint—Rule 15(c)(1)(B)
b. New party received notice of action against ∆ so that it will not be prejudiced in maintaing the suit
(within time period of servicing the complaint under Rule4(m))
c. New party should have known it would have been the proper party sued, but for a mistake (misspelling
or accidentally naming wrong party)
2. Gives some leeway, but doesn’t want to allow placeholder defendants while lawyers do their research
(Goodman v. Praxair—wrong party named, ct allowed amendment)
C. Rule 15(b): Amendments at Trial
1. when issues “are tried by express or implied consent of the parties” allows court to treat issues as presented
by the pleadings even though they are not
2. Point: When everyone assumes issue is being dried; And course of litigation put all parties on notice that
issue was asserted as basis for recovery or defense

Establishing the Structure and Size of the Dispute

A. JOINDER OF CLAIMS—RULE 18(A): broadest; once brings a claim, may join as many other claims, related or
unrelated, against an opposing party
1. does not confer supplemental subject matter jurisdiction; analyzed sep for ea claim
2. does not have to arise out of the same transaction (unlike Rule 13); cts may sever sep claims for convenience, to
avoid prejudice, or to expediate
B. PERMISSIVE JOINDER OF PARTIES—RULE 20: parties may join in a suit, if:
1. arise out of same transaction or occurance, AND
2. will involve common questions of law and fact to all
3. Policy Considerations:
a. efficiency & convenience (plaintiff master of claim)
i. Kedra (cop brutality span 15 mnths)—liberal; claims only need to be reasonably related to satisfy same
transaction , (the fact that claims or parties span lengthy time will not prevent joinder)
b. Consistent and unconfusion issues for jury
i. Insolia v. Philp Morris—parties want to join to allege conspiracy of tobacco makers; not allowed
because different issues of causation, so not same question of laws and facts
4. Improper joinder claims will be brought up early and remedy is separate law suits
C. COMPULSORY JOINDER OF PARTIES—RULE 19
1. 3 step process to determine if an absent party should be joined if feasable: Rule 19(a)(1)
a. If cannot get complete relief without them—(A)
b. Absent party would not be able to protect their interests —(B)(i)
i. ex: redistribution of land; if A v B would diminish C’s land
c. Existing parties interest impaired —(B)(ii)
i. risk of inconsistent or multiple obligations
2. If necessary party cannot be joined (ex deprive ct of jurisdiction), court must decide if that joinder is
indispensable or if the case can go forward “in equity and good conscience”—Rule 19(B); Factors considered:
(cts will not normally dismiss)
 a. Prejudice to person or existing parties
b. Can prejudice be avoided by shaping relief or protective provisions in judgment
c. Would a judgment be adequate in their absence?
d. If dismissed for non-joinder, will π have an adequate remedy?
3. Janey (breach of K, sued subsidiary, joining parent company would destroy diversity)—not a compulsory
joinder because joint and several liability allowed complete relief
a. between stare decisis and res judicata
D. IMPLEADER—RULE 14: ∆ can bring in a third party that may be liable for all or part of a π’s claim
1. pass through liability, not alternate liability; “If me, him”, not “Not me, him” (Superior Electric)
2. 3rd party’s liability depends on sucess of π’s claim
a. Third party ∆ only has to be liable to ∆, does not have to owe duty to π directly
b. Clark—an employer may implead a an employee that commits a tort
3. Look to state law to find liability, then to federal law to see if impleader is proper
4. Must arise out of same action or occurrence (Unification of World Christianity)
E. COUNTERCLAIMS AND CROSS-CLAIMS—RULE 13
1. Compulsory—Rule 13(a): out of same transaction or occurance; res judicata
F. INTERPLEADER—RULE 22 & 28 USCA §1335
1. Main purpose : to resolve who a party owes money to when mult parties claim on same property and limited
funds
2. Tashire (greyhound accident, insurance co)—not meant as a “bill of peace”
G. INTERVENTION—RULE 24
1. raised by a non-party that wants to intervene
a. has an interest in outcome and that interest would be impaired
b. its interest is not already adequately represented by present parties
i. 3d party must prove would bring something to suit that would be overlooked by current parties
c. Or as provided by statute
d. Natural Resources— Minimal representation: the fact that a parties interest “may be” inadequate is
sufficeint; just need possibility of divergence of interests
2. Claims made by P wanting to intervene are not covered by supplemental jurisdiction
H. CLASS ACTIONS—RULE 23
1. Hansberry—a class cannot be bound (res judicata) if interests were not adequately represented
2. Castano—don’t like to certify classes for immature torts; plus no common facts or law predominated
a. have to consider how the law will apply and how will try case

Obtaining Information for Trial

A. Phases of Discovery
1. “Initial Discovery Conferences” —Rule 26 (f): work things out themselves before going to court; discovery is
party driven w/ ct as referee
2. “Automatic Disclosure”—Rule 26(a)(1)(A):
a. required to disclose what you “may use to support your claim”; not req. to disclose information you don’t
plan to bring to trial
(1) Witness Lists: names and address
(2) Copies of Documents
(3) Computation of Damages
3. Party-Driven Discovery
a. Document Production—Rule 34: only can request documents from parties in the suit; doesn’t require cts
permission (must subpoena outsiders)
(1) Kozlowski v. Sears (burning pjs)—can’t excuse compliance if use a system of record keeping that
 conceals relevant records and then claim “impossible task” b/c too costly or time consuming
• Generally, burden on P to find documents where they are kept, but If you make it too difficult to
find, must share burden of producing
(2) McPeek v. Ashcroft (back up tapes of emails)—if high cost, test run is ok for electronic production
when much of the information would be irrelevant (unlike sears)
• Form of electronic info: as usually kept or in a reasonably usable form—34(b)(1)(E)
(3) Zubulake: may shift cost of discovery to requesting party (of electronic stored info) if seven-part test
is met:
• request for relevant info?
• is it available from other sources?
• cost of production vs amt in controversy
• cost of production vs resources available to ea pty
• ability of ea pty to control costs
• importance of issue at stake
• relative benefits to parties of obtaining info
b. Interrogatories—Rule 33: allows party to send written questions to others to be answered under oath; for
parties only
(1) Lawyer answers ea with as little as possible while still answering, client signs (w/in 30 days)
(2) Good for obtaining concrete info (like where docs kept or names); but not good for “getting the story”
c. Depositions—Rule 30: oral interrogating of other party or non-party
(1) Non-parties must be subpoenaed under Rule 45 (w/in 100mi)
(2) Purpose of Depositiosn:
• Preserve a witness’ testimony, if witness can’t attend trial
• Put pressure on witness to avoid evasion of answers (easier to do when written)
• Nail a witness to their story: later use to impeach if goes against it at trial
(3) Objections:
• Rule 30(c)(2): during deposition, can only object to preserve privilege
• Rule 32(b): an objection may be made at a hearing or trial to the admission of any deposition
testimony that would be inadmissible if the witness were present and testifying.
d. Physical/Mental Examination—Rule 35(a): need cts permission
e. Request for Admission—Rule 36
4. Disclosure of Expert Witness—Rule 26(a)(2)
a. requires more (their statement, data relied on, exhibits to be used, qualifications, & compensation) than
regular witness (just names)
b. Non-testifying expert covered by work-product doctrine: Not required to disclose report, no discovery
(1) Shell: retaining in-house employee on special assignment is covered; cheaper for corps to keep
experts on staff than hire outside
(2) Policy: so attorney’s can get educated on a topic
B. Scope of Discovery
1. Rule 26(b): party may obtain discovery of any non-privileged matter relevant to their claim/defense
a. Protective Orders-26(c): Davis v. Ross (defamation, requested net worth)—ct may limit discovery to
protect an individ.’s privacy or from annoyance, embarrassment, or undue burden
b. Exemptions from Discovery:
(1) Work Product—Rule 26(b)(3): cannot obtain documents and tangible things lawyer prepared in
anticipation of trial UNLESS can show substantial need and undue hardship.—Hickman v. Taylor
(boat accident, interviewed witnesses)
• What does it cover:
• materials: “docs and tangible things prepared in anticipation of trial”
• “Mental impressions, conclusions or legal theories” of attorney
 • Who owns? Attorney
• Purpose: encourages diligence on other side; if not protected, attorney’s wouldn’t write things
down
• Protection: Qualified or partial, materials can be discovered, if
• substantial need
• undue hardship—can’t obtain elsewhere
(2) Attorney-Client Priveldge
• What does it cover:
• (1) confidential communications (2) made in confidence (3) while seeking legal advice
• Who owns: client owns privilege and can waive it
• Purpose: encourages frank discussion; prevents attorney from being called as witness
• Protection: absolute
• Upjohn v US (corporations, questionnaires)—applied “subject matter” test over narrower “control
group” test. Factors:
• communications re matters in scope of ee’s duties; info not avail at higher level,
C. Enforcing Discovery Rules—Sanctions Rule 37(b)
1. Hovey: can’t use most sever sanctions just to punish; must be more than just a screw up
2. Hammond: (party failed to produce documents; had not case)—can sanction if failure is supported by adverse
inference
3. Link: monetary sanctions b/c bad attorney, attributed to client; client choses counsel at own peril and pays the
consequence of poor representation
4. Cine 42nd St Theater (failed to answer interrogatories, then gave ambiguous answers)—can impose harshest
penalties for willful conduct or bad faith (will usually get ct order first)

Adjudication before trial: Summary Judgment

A. Rule 12(b)(6): motion to dismiss for failure to state a claim upon which relief can be granted
1. tests sufficiency of claim: If the P proves allegations, will he have established a cause of action entitling him to
some form of relief?
a. assumes facts are true & considers only the complaint (no other evidence); liberally construed in favor of P
B. Rule 56: Judgment as a Matter of Law
1. Sum Judg granted when:
a. “No genuine issue of material facts”
b. moving party is entitled to judgment on those facts
2. test sufficiency of evidence: if P wants SJ must have evidence that is so persuasive, no reasonable jury could
dismiss it; D must show P failed to produce sufficient evidence to move forward
a. Use affidavits: present just facsimile evidence (answers to interrogatories, depositions..), not actual
evidence that would go to trial
b. burden on moving party
c. Responding party must go beyond pleadings and present evidence to prove issues of genuine fact such that
case should go to jury—56(e)(2)
C. 3 Standards on what it takes to win (what it takes to shift burden to responding party): Interpreting whether there’s
“issue of material fact” (ftbl field) : reread the views Currie & Louis
1. Adickes: must foreclose the possibility; “cogent and compelling”
a. Adickes v. SH Kress (civil rts action, issue of constitutionality conspiracy btwen store and police)—D did
not get sum judgement b/c didn’t prove it was impossible that police were in store when P was asked to
leave
(1) Burden on moving party must produce enough evidence that a reasonable jury MUST find for her
2. Luis: sufficient evidence that a jury COULD find for moving party
a. moving party produce sufficient evidence to showing or suggesting the nonexistence of an essential
element in other parties case, then shift burden on opposing party to prove no issue of mat fact
 b. Celotex Corp v. Catrett (asbestos case)—just need to show a hole in other party’s arg
(1) just need to show an absence of support for other party’s case (in between Luis & Currie)
3. Currie—just make motion and burden shifts to other party
a. no more burden on moving party than they would have at trial; if party wouldn’t have burden of production
at trial then should have at sum judg stage
b. Problem: could use motion ot harass
Trial
A. Phases of a Trial
1. Jury Selection
2. Opening Statements
3. Presentation of Evidence
a. Motion for Judgment as Matter of Law: Directed verdict—at any time before case is submitted to jury
4. Arguments
5. Jury Instructions
a. jury is final arbiter of the facts
b. Judge instructs the jury in application of the law, which they must follow whether they agree or not
c. Preponderance of the evidence standard
6. Jury Deliberation and Verdict
7. Post-Trial Motions and Judgment
a. A new Motion for Judgment as Matter of Law (JNOV)
(1) Throws out the jury verdict and decides in favor of the motioning party
(2) The moving party must have already made this motion once already (Fed.R.Evid. 50)
b. Motion for New Trial
(1) Verdict is set aside and the judge orders that a new trial occur unless the other side agrees to a change
in the amount of damages
B. Seventh Amendment Right to a Jury Trial
1. “In suits at common law, right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise
re-examined, ...than according to the rules of com law.”
a. “preserved”: continuing rt to jury trial present in english cts of LAW (but not equity)
(1) states rights: No fed guarantee for jury trial in civil cases
• must be provided for in st consitution
b. Under Rule 2, there is no seperation anymore, you can bring both law and equity claims in one civil action
(1) Common Law: usually monetary damages
(2) Equity: injunctive relive, specific performance, recessions ..
c. Disadvantages of Jury Trial
d. Advantages of Jury Trial
2. Beginning Point: Parsons v. Bedford (1830)
3. Pre-Modern Case: Stewart v. American Life Ins. (1937)
4. Arrival of Modern Era: Beacon Theaters (1959)
a. After Beacon
b. Even after Beacon,
5. Development of Modern Era:
a. Dairy Queen (1962)
b. Katchen v. Landy (1966)
6. Two-Part Standard:
a. Curtis (1974) & Tull (1987)
b. Terry (1990)
c. Granfinanciera (1989)
 7. Administrative Machinery and Jury Trial Issues:
a. Katchen, Atlas Roofing, and Langenkamp v. Culp (1990)
b. Granfinanciera (1989)
8. Public Rights Elements: Atlas Roofing (1977)
9. The Statutory Era
a. Curtis (1974)
b. Pernell (1974)
c. Tull (1987)
d. Feltner (1998)
e. Terry (1990)
C. Judicial Control of the Verdict
1. Judgment as a matter of Law—Rule 50(b)
2. Motion for a New Trial—Rule 59
3. Remittitur and Additur
4. Nature of the Verdict
5. Juror Impeachment of the Verdict

Personal Jurisdiction—Geographical Location

A. Types of Jurisdiction
1. In personam: D is personally liable
2. In rem (“pure”, “in the nature of rem”): jurisdiction over property; suit pertains to rights over property within
state
a. in theory “binds whole world”; buyer seeks specific performance to get title of property (ex. quiet title)
3. Quasi-in-rem: presence of property is just jurisdictional hook
a. when ct doesn’t have in personam jurisdiction but D has property in state, P may attach the property at beg
of suit (seizure =notice)
b. if D does not appear and you get a judgment against him, you can sue on the judgment in another state
B. Power Theory & Pennoyer
1. Pennoyer v Neff
a. Every state has exclusive authority over persons and property within its bounds
b. No state has authority beyond its bounds
c. Presence of person or property is both necessary and sufficient in order to obtain jurisdiction
2. Transient Jurisdiction: Grace v. MacArthur (airplane case)—if served in state, jursidiction even if D was only
in state temporarily
a. Fraudulent Inducement: however, service is invalid if D is lured into jurisdiciton under false pretenses
(Wyman)
3. Domicile: Jurisdiction over citizens of the state: a state may exercise jurisdiction over one of its citizens even
when citizen is out of state and can’t be served there if its fair (Milliken v Meyer—stretches traditional rule, D
is not served in forum state)
a. Exceptions to Pennoyer:
(1) Consent: don’t raise lack of jurisdiction as an affirmative defense in answer (Rule 12)
• A person who commits a tort in a state can be sued in that state under the fiction of implied
consent (Hess v. Pawloski—policy of state interest; by operating a car on state regulated
highways, D consented to jurisdiction when got in an accident)
(2) Divisible Divorce: “res” jurisdiction wherever one of spouses has moved there permanently
“domiciled”
(3) Corporations: most are inc in Delaware but operate elsewhere, must register in state and appoint an
agent for service of process
• dont need presence of person or property if corporation is doing bus there
 4. Full Faith & Credit Clause: once a judgment is valid in one state, honored in all others
a. a Judgment is either valid EVERYWHERE under “full faith and credit claus” or valid NOWHERE (even in
state where rendered)
C. Minimum Contacts: Constitutional Question
1. International Shoe: Personal jurisdiction is satisfied if D has minimum contacts with forum state such that
maintenance of the suit does not offend traditional notions of fair play and substantial justice (functional
approach: qualitative analysis of contact, not quantitative)
a. Policy Reasons: D takes advantage of “benefits and protections of the laws” when choses to conduct
activities in that state and accepts duty to answer for those in state activities;
b. Applies to individuals and corporations
2. Range of minimum contacts: “quality and nature”
a. Liberal: McGee v. International Ins.(interstate commerce: D corp business in TX, P-insured res of CA, K
delivered in and premiums mailed fromCA)—single act can be sufficient
(1) Balancing test of inconvenience to P of suing elsewhere v inconviences to D
(2) Policy of State’s interest: if they have a manifest interests in providing means for redress to its
residents
b. Purposeful Availment: D must have performed some voluntary act in forum; D must purposefully avail
itself of the privilege of conducting activities in the state, thus, invoking benefits and protections of its laws
—Hanson v. Denkla (trust case)) unilateral activities of P are not sufficient
(1) D must make deliberate choice to relate to the state in some meaningful way
c. 5 Factor test: World Wide Volkswagen: redefining min contacts
(1) Burden on the defendant
(2) Forum state’s interest in adjudicating the dispute
(3) P’s interest in obtaining convenient and effective relief
(4) Desire for judicial efficiency
(5) Shared interests of states in advancing Substantial public policy
3. General vs Specific: Mere “casual” or “isolated” contacts are insufficient
a. Specific Jurisdiction: courts jurisdiction derives from D’s voluntary relation to the state and that power
limited to cases arising out of that relation
(1) In-state activity is limited: the “quality and nature” of an act will support “specific in personam
jurisdiction over claims arising out of that single act
b. General Jurisdiction: when D’s activities are so “substantial and continuous”that D would not be
inconvenienced, may be sued in state for any claim, including ones that unrelated to its in-state activities
D. Long Arm Statutes: State’s Response
1. Two-part analysis for personal jurisdiction issues:
a. Does a state statute authorize a court to exercise personal jurisdition?
b. If yes, would it be constitutional to do so under the due process clause?
2. Two Types: “Self Adjusting” (CA); & Enumerated Acts
3. Gray v. American Radiator (water heater valve manufacture)—personal jurisdiction upheld over valve
manufacturer because torturous act (explosion) happened within the state
a. First case to test long-arm statutes: jurisdiction upheld even though D did not act, send goods to, or
know/anticipate product would end up in forum state
Subject Matter Jurisdiction—Choosing between State and Federal Ct
A. Generally:
1. Cannot be waived—must exist; issue can be raised at any time during litigation; ct has an obligation to raise
issue on its own
2. Fed jurisdiction Must be within constitutional grounds under Art III § 2, and granted by congress in a statute
(usually narrower)
3. SMJ is about federalism, whereas personal j. is about fairness to the D
B. Diversity of Citizenship (28 U.S.C. § 1332):
 1. Strawbridge v. Curtis—“complete diversity” all Ps in suit from different states than all Ds at time suit is
brought—statutory interpretation
a. Constitution only requires “minimal diversity”—at least two parties are not co-citizents
b. “Complete Diversity” is only Statutory interpretation, congress can change any time (State Farm v.
Tashire—min diversity sufficient in interpleader mass suits);
c. Exceptions to Complete Diversity:
(1) Statutory interpleader—§ 1334
(2) Supplemental jurisdiction (claims brought by 3rd-pty Ds)
(3) Class actions—§ 1332(c) (certain mass accidents: §1349)
2. Citizenship=Domicile: where has taken up residence with the “intent to stay indefinitely”,
a. determined at time of filing
b. mult residence, to determine domicile look at 1) mental intent, and 2) physical manifestations
c. Mas v. Perry (two-way mirror, LA students)—a persons residence is not sufficient to establish domicile if
they have no intent to stay there, even if don’t intend to return to domicile
3. Corporations: domicile =
a. where incorporated, OR
b. prinicpal place of business
c. “total activity” test: considers both
(1) “nerve center” : where activities are directed and controlled
(2) “production of activities” : actual physical operations
4. Amount-in-controversy: >$75,000 —28 U.S.C. §1332(a)
a. based on P’s good faith claim in his complaint (Mas v. Perry)
b. Unless it appears “legally certain” claim is really for less (no way recovery could reach it)
c. Timing: determined at time claim is filed, if something pushes it below, won’t defeat jurisdiction, also
doesn’t matter what P actually covered
d. Equitable relief (non-monetary) : ct will measure value to the P of the relief sought

C. Federal Question—“Arising Under” (28 U.S.C. § 1331)

1. Issue: if a case “involves fed law”, will it “arise under” it?
2. The Well—Pleaded Complaint Rule
a. A federal issue must appear in the P’s well-pleaded complaint, anticipating a D’s federal defense is not
sufficient
(1) RR v. Mottley—P’s sued for enforcement of free RR lifetime passes; RR defended that statute barred
free transportation; Court itself raised issue of Subject Matter jurisdiction (was none)
• Skelly Oil—declaratory relief must show an actual dispute btwn parties about fed law, or else
could get around Mottley rule
(2) Two different interpretations of “arising under”
• Art III, § 2: (broader) if a case raised questions of fed law (turned on them) would “arise under”
fed law; dif outcome
• Statute § 1331—if a P would have to raise federal issue in a complaint; if it was necessary element
to establish her complaint (Mottley—P could prove elements of breach of K w/ raising fed issue;
so state law claim)
b. Policy:
(1) cts need to determine jurisdiction from outset: rule allows this based solely on the P’s case before D
answers
(2) P could invoke fed s.m. jurisdiction simply by speculating defenses the D could raise
3. State Law Claims w/ Fed Ingredients: look to fed interest involved - must be substantial.
a. SMJ, where a federal issue is an ingredient of the complaint—the decision depends on determining the
constitutionality of a fed statute
 (1) Smith v. Kansas City (bonds)—P brings state law to enjoin corp from investing bonds, but could not
prove w/o establishing a fed statute authorizing bonds was unconstitutional
b. No SMJ, for allegations of “non-compliance” w/ fed regulations; where congress did not create a fed
right to sue for violations in statute
(1) Merrell Dow (drug warnings)—tort claim req proving D violated FDA standards of warning labels
c. Need to resolve Federal issues must be substantial—if a whole case turns on a fed issue and wont displace
too much state jurisdiction, then SMJ
(1) Grable & Sons v. Darue Eng. (quiet title)—govt took property for not paying taxes and sold to
Darue; P claimed improper notice; Fed Issue: the meaning of proper notice under the fed. statute is in
dispute
d. Spectrum approach to determine if “well-pleaded complaint” rule is met:
(1) Holmes: “Creation Test” jurisdiction is under the law that creates the cause of action; wherever claim
comes from
(2) Grable Ct: if there is substantial federal interest that is more important than certainty in defining fed
jurisdiction (case-by-case determination)
(3) Brennan: any fed ingredient confers fed jurisdcition

D. Supplemental Jurisdiction: a separate claim against the same party or another party)
1. Pendant Jurisdiction: (Federal Questions): can add state law claims against same D in Fed Q cases if it arises
out of a common nucleus of operative fact.—United Mine Workers v. Gibbs (dispute over opening of mine)
a. Art III grants jurisdiction over entire “cases” not just over particular claims—Constitutional analysis Gibbs
b. Ct has power to hear, but it is not required to; Discretion depends on:
(1) if state law claim predominates
(2) would ct be deciding novel issues of state law
(3) can the fed issue be resolved early, leaving only the state claim
c. Cases where No PJ because lack of statutory authority (overturned §1367:
(1) Aldinger (fired from county job)—no PJ in Fed Q suit against state officials to hear P’s state law
claim against county (statute bars county suits)
(2) Finley—No PJ, in Fed Q suit against US, to hear P’s state law claim against individ Ds, even if
proper under ArtII, still needed statutory authority
2. Ancillary Jurisdiction: (Diversity): “logically related”—Ancillary Jurisdiction on Rule 14(a) impleader
claims and third party’s claim “back” against D (but not P-> third-party) (Kroger)
a. Kroger —can’t use diverse straw-man D to implead the non-diverse “real D” to get federal jurisdiction
b. Zahn —in class action suits, diversity if named P is diverse from all Ds (even if members of P’s class are
not diverse from all Ds)
(1) but P and all members of P’s class must satisfy jurisdictional min (overruled by Exxon)
c. Amount in Controversy
(1) P can add amt in sep claims against same D to meet req
• CANT add claims against two Ds, each has to meet req indiv
(2) Exxon—as long as one P meets req other Ps can join for sup juris
3. Statutory Limits—§ 1367
a. § 1367—gave statutory basis for sup jurisdiction, affirms “constitutional analysis: in Gibbs, overruled
Finley & Aldinger
(1) In Fed Q,
b. Exceptions in §1367(b): no SJ for claims made by...
(1) P against parties joined under Rules: 14 (impleader), 19, 20 (joinder of parties), or 24 (intervention)
(2) Joined Ps under Rule 19 (required joinder) 24
• would allow P to join non-diverse Ps who would not be allowed at the time of filing
• Nothing prohibits addition through Rule 20
E. Removal—28 U.S.C. § 1441
 1. Makes fed jurisd available to D, if Fed ct has original jurisdiction (P could have sued in fed ct, but P brought in
state ct), D may remove to fed ct w/o any approval simply by filing notice in fed ct
2. Removal must occur w/in 30 days of service
a. Can after 30 days if grounds for removal do not become clear until later
3. If mult Ds, all must agree to removal
4. Can’t remove to another state ct or a fed ct in another state (or district)
5. D sued in their home state cannot remove
6. Fed ct not precluded from hearing b/c state court lacked jurisdiction
7. Remand (§ 1447(c))
a. Motion for failure to follow procedure: must be made w/in 30 days of removal or objection waived
b. Motion for lack of subj matter may be made at any time
c. Appellate review of denial of a motion to remand is reviewable, but granting is not generally reviewable

Law to be Applied: State Law in Fed Courts

A. Framework: Old rule
1. Constitution: In diversity suits fed ct has judicial power to hear case, but no legislative power to create
governing law—Art I (delegated powers by necessary & proper clause); Art III (creates fed cts to hear
constitutional issues) & diversity suits
2. Rules of Decision Act (RDA)—“Laws of the several states” shall be regarded as rules of decisions in trials at
common law, except where US constitution or statutes otherwise require.
a. Swift misinterpreted “laws of the several states” to not include state cl
3. Swift v. Tyson (issue if bill of exchange endorsed to third-pty served as cancellation of pty’s debt)—J.Story:
judges job search for “transcendental body of law” and apply
a. Philosophical Premise: (platos cave) courts do not make the law, but finds the law; past case decisions are
“evidence” of what the natural law is
b. Problems: Dissent (J. Holmes)—no “transcendental body of law”; law does not exist without some
definite authority behind it; Should ask: what body has the authority to make rules governing the
enforcement of K?
(1) Law could be one thing in one place and different in another, if the legislature says so: Dif place w/
dif conditions and problems, thus, lawmakers may choose dif rules
B. Erie: Fed cts must apply state common law for all state claims
1. There is no federal GENERAL common law—(Hinderleiter v. Laplata—still fed com law for issues that arise
from federally created law)
2. Erie RR v. Tompkins (1938, J.Brandeis)—“longitudinal tresspas” lost an arm when hit by protrusion from
train; issue what duty of care did RR owe? (less care in Penn State law than fed law)
a. Erie overturned swift for three reasons:
(1) Inconsistent rules on recurrent issues; Swift failed to achieve goal of created a “broad uniformity” in
cl throughout nation by inducing judges to recognize “rightness” of fed decisions and fall in line
(2) Manipulation: Inverted purpose of diversity: to protect out-of-staters from descrimination, isntead
allowed out-of-state Ps to chose a dif rule of substantive lawbecause he choose fed ct vs state ct—
Black & White Taxi (reincorporated in dif state to bring div suit when state law wouldn’t uphold
clause in K)
(3) Unconstitutional: Swift authorized fed judges to “make” laws in areas where fed government has no
delegated powers; (Amend X: giving cts jurisdiction does not invite them to create laws)
• Rejected J. Story’s interpretation of RDA act as unconstitutional
b. Substantial (constitutionally compelled) vs Procedural (policy): Erie is about getting the substantially
same results, thus apply state law, b/c there is no other law; York implements this policy of Erie
3. Outcome Determinative Test: Guaranty Trust v.York (1945, J. Frankfurter)—(statute of limitations) any state
law that is outcome determinative, even if its procedural, must be applied by fed cts;
a. as a matter of policy not constitutional compulsion, follow state law, even when there can be fed law, if it
will further the policy of uniform outcomes
 (1) In York, there was constitutional authority to make fed procedural rules (no authority in Erie—
Constitution reserved right to create “substantive” rules to states)
(2) Policy of Erie: Prevents: “inequitable administration” and abusive “Forum Shopping”
4. Balancing Test: Byrd v. Blue Ridge (1958, J.Brennan)—Constitutional Rules—fed procedures may be applied
over state law if the likelihood of a dif result is small so that the state’s interest in uniform results won’t be
affected (ex 7th amend rt to a jury trial vs CA merely procedural rule of judge deciding )
a. fed cts must be “separate and independent”——Byrd
b. balancing test between:
(1) states’ interest in maintaining substantive policy (outcome determinative)
(2) federal interest in maintaining federal principles,
(3) litigants interest in predictability across forums
5. Out-of-Court Conduct: Hanna v. Plumer (1965, J. Warren)—substantive rules are those that regulate or
assign consequences to out-of-court conduct (service of process: FRCP 4 abode v. Mass in-hand)
a. Hanna 1: Modified Outcome Determinative—“ex ante”: view in light of policies to prevent forum
shopping and inequitable administration of the laws
(1) old method: Ex Post: once forum is chosen, if dif state rule result in dif outcome, then state rule must
apply (consequently, every procedural variation becomes outcome determinative...need to rescue
FRCP)
(2) Ex Ante: looking forward to how lawsuit would unfold, if the FRCP are unlikely to affect the choice
of forum, then fed rules should be followed
b. Hanna 2: F.R.C.P. are “armor-plated” (Rules Enabling Act says so)
(1) “Arguably Procedural” Standard—FRCP must be applied even if it governs a matter “falling within
the uncertain area between substance and procedure,” so long as it is “rationally capable of
classification as either”
• FRCP: advisory committee, supreme court, and congress approved as a procedurally valid rule to
be applied in fed ct
6. Conflicts w/ State Law
a. Constitutional rules: provisions of constitution apply even if they conflict w/ state law, substantive or
procedural. (Byrd—jury trial; Herron—fed power to direct verdict)
b. Statutory Rules: If congress has the constitutional authority to enact the fed statute, it applies; Stewart—
forum selection clause was valid under § 1404(a), even though state wouldnt uphold
c. F.R.C.P: Hanna 2: FR are procedural and therefore constitutional and trump state rules (Rule 38-penalty
for frivolous appellate review)—Burlington Northern
d. Federal Practice: Hanna 1: apply state rule if fed practice is “outcome determinative” in the sense that
following it would lead to evils of forum shopping or inequitable administration of the laws.
7. Avoiding Conflicts: when fed rules are so close to being substantive, it seems unfair
a. “Restrained and moderate interpretation”: Walker v. Armco—gave Rule 3 “narrow” construction to
avoid conflict state law; (R 3 doesn’t apply to commencement of suit in terms of tolling the limitations
period diversity cases; can’t overturn FR bc Hanna said ironclad)
(1) but FRCP should be given plain meaning. Then, if a “direct collision” -> Hana applies
b. Accommodate Approach: Gasperini—revives Byrd balancing test—where a fed statute or rule is not
directly implicated, must take Erie policy of uniformity and accommodate substantive state issue (despite
Byrd’s “separate and independent notion” and that FRCP governed new trials)
(1) state procedural issue is not followed, but substantive state issue is.—NY statute governing damage
caps is stricter than FRCP 59 which is discretionary

C. Determining State Law

1. Mason v. American Emery Wheel—when deciding what state law to apply, fed ct should apply what state
would apply if it was hearing the case
a. In the event that theres clear disapproval of the existing rule, but it hasn’t been overturned (Privity tort
rule)->Certification procedure: ask state sup ct what they would do
 2. Converse Erie: Dice v. Akron (1952, J.Black)—when a state ct hears a fed question case, fed law and
procedures must be applied by the states (judge/jury question is substantive; but was procedural in Byrd)
a. Policy Reasons: Appellate review: few chance to review a state courts application of fed rules; In fed
district ct, guaranteed appellate review)
D. Federal Common Law (exists in 5 areas); Erie says no fed general common law
1. When a state is a party
2. For maritime law
3. Federal Obligations (commercial paper, checks contracts)
a. Clearfield trust and Kimbell Foods
4. International Law and Foreign relations
5. Interstate Pollution:
Appeals
A. 28 U.S.C. § 1291: gives jurisdiction to hear appeals from final judgment. (construed to mean as of right)
1. no constitutional right to an appeal guaranteed under due process
B. Purpose of Appellate Review:
1. Error correction: (getting the right outcome) correct errors of law at trial ct level, but don’t decide cases;
limited to the following common errors:
a. Failure to give a jury instruction (findings of fact and conclusions of law)
b. Error of evidence: admitting or excluding
(1) Harmless Error Rule: have to show it effected the outcome of the case (easier to do in jury trials)—
§2111 and Rule 61
c. Procedural Error
(1) an error in exercising jurisdiction—Tashire (impleader & insurance)
d. Misconduct (juries, ct personnel, lawyers, witnesses, parties) that could have had an adverse impact on
verdict
2. Law Making: difficult cases where both sides can reasonably say facts and legal rules are on their side
(controversial cases: Mitchell-truck parked, premise liability)
3. Fairness and Efficiency: legitimizes decisions of lower courts and provide objective supervision
C. Notice of Appeal: Bowles—Trial ct erroneously allowed 17 day extension rather than the 14 days req. by Rule 4(a)
(6) and §2107(c); Ct upheld rule
1. Time limits for appeal are jurisdictional in nature. Once time has passed, a court has no jurisdiction to hear an
appeal (stricter than more flexible rules allowed in the case)
2. Have 30 days from entry of judgment to appeal
D. Defining “Final” Judgment: §1291 as-of-right
1. Final: ends the litigation on the merits and leaves nothing for the court to do but execute the judgment
a. Purpose of Final Judgment
(1) practical/ efficiency: appeals take time (big pockets would win)
(2) Preserves Primacy of DC & gives their decisions authority
b. Ex of things not “final”
(1) denial of motion for summary judgment
(2) granting discovery requests
(3) disqualifying counsel
(4) consolidating or severing claims
2. Gillespie—“finality” is given a practical rather than technical definition (heard case due to efficiency and need
to avoid unnecessary of piecemeal litigation); too practical?
3. Quackenbush—an Burford abstention-based stay order by a federal court effectively surrenders jurisdiction to
state court and is in effect a final judgmnt (Moses H. Cones)
a. stay order: puts parties effectively out of court and surrenders jurisdiction (“stay” means technically still
pending, but unlikely)
 b. abstention is dif from remand (§ 1447(d)). Remand cannot be appealed
E. Collateral Order Exception:
1. Cohen— An order may be appealed that is not a conventional final judgment if:
a. Separate from the merits of the case
b. Final decision on issue
c. Effectively unreviewable after the case is decided on the merits
2. Denial of an Immunity defense (rt not to stand trial) 3rd prong—because important for government to run
smoothly—Will v. Hallock
a. Narrow Scope—usually only when party asserting right to appeal is claiming a privilege defense of
immunity (govt); Need a compelling public interest or fundamental right to be effectively unreviewable )
b. No review of denial of an immunity defense when it involved a private citizens K (not on same public
interest footing as govt officials)—Digital Equipment
3. Discovery Orders
a. Mohawk Industries—discovery orders (especially denial) are not reviewable under collateral order
doctrine
b. US v. Ryan—dont get a right to appeal from order to produce (subpoena) but if you refuse and get held in
contempt you can appeal that
c. Problem: Birmingham—only thing ct can rightly look at is why you were held in contempt not the
underlying legality of the underlying issue
d. Cts generally more sympathetic to non-parties held in contempt because they don’t have a chance to appeal
later where parties to the suit do—Hickman: it was the lawyers own work product. but he was the attorney
not a party in suit; it affected party’s interest so they were allowed to intervene
e. when non party priveledge or a work prodcut then contempt is a final judgment, when partys do it don’t
consider contempt judgemnt as final
4. Interlocutory Injunction
a. 28 U.S.C. §1292(a)(1): interlocutory appeals allowed when a district ct grants, continues, modifies, refuses
or dissolves an injunction
b. Rule 65: assumption that erroneous denial of a temp injunction may cause as much irreparable as an
erroneous grant of one
(1) 65(a): Preliminary injunctions: appeal only applies to this type
(2) 65(b): Temporary Restraining Orders: not appealable
(3) 65(c): Permanent injunctions: not appealable
c. Paradigm Case: neighbor sues other neighbor building garage that would put construction 5ft into property.
Temp injunction to stop construction until end of suit (if denied, construction would continue and would
have to be demolished if case lost)
d. Carson—if its not actually an injunction, but looks like one, have to show irreparable harm (settlement
denied: white employees harmed since they weren’t represented in settlement)
(1) P class was harmed by not getting settlement
(2) Did not get immediate relief by having to wait for trial to conclude: lose chance to settle on their
terms (pre-trial settlements about avoiding risk)
5. Discretionary Review
a. Role of Trial judge:
(1) Rule 54(b): trial judge enters judgment on some of the claims to authorize an immediate appeal
• Appellate judge can only review for abuse of discretion
(2) §1292(b): Both trial judge and appellate court exercise discretion in allowing an appeal
• Nystron v. TREX
b. Writ of Mandamus: used to confine the inferior court to lawful exercise of power or compel it to preform
its duty
(1) Need a pattern of neglect or abuse of power—Will v. US (order to turn over witness list in a criminal
case when it created an issue of security and safety)
 (2) Rare: There must be no other means of attaining relief and show right to writ is clear and indisputable
—Kerr
c. Review of Class Actions
(1) Rule 23(c)(1): Certification Order
(2) “Death Knell Doctrine”—Eisen v. Carlisle: suing on individuals behalf for an amount so low
wouldn’t be worth cost of litigation
• Coopers v. Lebrand—said not a final judgment and rejected Death Knell
• Rule 23(f): revived death knell
d. Review of judicial findings of fact
(1) Bose—judges must make findings of fact specifically and conclusions of law seperately. Want judges
to think before they rule.
• Judge Findings of fact reviewed under a “clearly erroneous” standard (more strict with jurys)
(2) Sioux City RR v. Stout —sometimes hard to tell facts from legal conclusions