4LawNotes.

com Outlines Database

Author: HW School: Northwestern University School of Law Course: Civil Procedure Professor: Martin Redish Text: Civil Procedure, A Modern Approach (Marcus, Redish, Sherman, Pfander)

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Disclaimer: This outline was prepared by a law student. 4LawNotes.com makes no warranties as to the accuracy of the material provided in this outline. Use this outline at your own risk and please do not rely on it for legal advice.

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PLEADINGS
A pleading seeks to describe what the complaint is all about. Questions to ask (Always keep in mind what year the complaint is filed in and use the appropriate set of rules for the particular time): 1. Are we dealing with a case that came before the adoption of the Federal Rules for Civil Procedure? (NOTE A) 2. Are we in Federal Court? If so, why? (NOTE B) 3. Are we in a fact or notice pleading jurisdiction? What does that say about the complaint? (NOTE C) 4. Is there a motion to dismiss? Should one be made? (NOTE D) 5. Are sanctions being requested? Should they be requested? (NOTE E) 6. Are there any counterclaims or cross claims? (NOTE F) 7. Is the answer to a complaint properly formatted? Does the answer contain affirmative defenses? (NOTE G) 8. Is there a request for an amendment to the pleading? (NOTE H) 9. Is there a claim of fraud or mistake? Is there an allegation regarding the condition of the mind? (NOTE I) Another key consideration is whether a court has jurisdiction over the case at all. That will be addressed in a separate section. When examining a pleading, always consider: Does the pleading explain why a court has jurisdiction Does the pleading explain why the pleader deserves relief Does the pleading make a request for how the court should act A pleading should 1. 2. 3. Give notice to the defendant about why the plaintiff is upset Give notice to the court as to what the issue is Give some information that could be decided by a jury, if need be

All rules should be trans-substantive and agnostic as to what Federal Law addresses (Doesnt change what the law means) No rules created under the enabling act (or their interpretation) may expand, limit, or alter any Federal right

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Supplemental Pleadings deal with events that came since original pleading was filed (prejudice of new info ignored because it couldnt have been known during original pleading NOTE H)

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NOTE A Pleadings before the Federal Rules/Creation of Federal Rules

English Common Law = Writ System All complaints had to be filed based on the correct writ Makes the system a game of skill Good lawyers knew which writ to use at which time Seen as a Good old boys network, and dies with the advent of democracy Some of the old writs, just in case Trespass (Injury done directly to the plaintiff land, person, rights) Trespass on the Case (Injury as an indirect consequence of defendant) Covenant (Breach of contract under seal) Debt (Recover a specific amount of money) Assumpsit (non-performance of a contract) Replevin (Recover possession of goods, unlawfully taken) Code Pleading Early form of Fact Pleading Legal conclusions cannot be mentioned Only examines ultimate facts o Front Loads the system o Goal is to block people from getting through Notice Pleading Created by Charles Clark and the Advisory Committee in the first Federal Rules in 1938 Pleadings are less important part of procedure than discovery and summary judgment Information gathering is not the focus of the pleading stage The consequence is the rise of strike suits Created through the Enabling Act, so all rules cannot violate the provisions of the law

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NOTE B Federal vs. State Court

This is a key focus of the jurisdiction section Only two types of cases can be in Federal Court 1. Diversity of Citizenship 2. Question of Federal Law State questions can end up in Federal court, and the Federal court will apply the states law. Diversity Must be complete diversity Complete Diversity = All parties must be from different places

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NOTE C Notice v. Fact Pleading Jurisdictions

All federal cases are notice pleading, but some states retain fact pleading rules NOTE I Deals with cases where fact pleading has been implemented/tried to be implemented in Federal cases Fact Pleading Example: Gillispie v. Goodyear Service Stores A complaint must provide o A plain and concise statement explaining the facts o Nothing about the legal conclusions of the pleader o Should have facts from which a court can determine if a plaintiff has right to relief The theory is that the law is known, and thus conclusions are superfluous. The facts that are going to be applied to the law are unknown, and thus, should be the focus of the pleading A judge has to be able to do his job and decide if there is a real complaint Notice Pleading Example: Conley v. Gibson No longer the charged terms of facts and cause of action just a plain statement of the claim showing that the pleader is entitled to relief Somethings fishy can be enough if there isnt anything here, then we can get them after discovery when we know everything The errors are going to favor the plaintiffs under this system, so unless a claim is clearly insufficient in the pleading, then it is accepted Redishs Grandmother Calls everyday to tell him something is wrong JUST A CONCLUSION, SO NO CLAIM Rabbi Klein example Losing money does not show that the people were out to get him, and there was no reason to be suspicious Dioguardi Italian immigrant filed claim against US customs office claiming that he had 3 cartons of tonic shipped from Italy that were missing. District court dismissed. Clark gets case, and finds it fishy and not 12b6 dismissible. Guardi found nothing and case lost on summary judgment. Conley example Something doesnt seem right, and that is enough

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1. Grandmother: Plaintiff be expected to provide more detail, even w/o discovery 2. DioGuardi/Connleyyou cant be expected to find detail w/o discovery 3. Klein: Same as 2, but nothing on the face of what happened that would make a substantial case. Relevant Rules Rule 8 (a) (2) i. Outlines the standards for a valid complaint Rule 8 (e) (2) i. One bad claim does not ruin the entire complaint

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NOTE D Motions to Dismiss on the Pleadings

The standards are outlined in Rule 8 The triggering procedure to enforce those standards are in Rule 12 Reasons to dismiss The Defense Motions (12(b)) 1. Lack of Jurisdiction (subject) 2. Lack of Jurisdiction (person) 3. Improper Venue 4. Insufficiency of process 5. Insufficiency of service of process 6. Failure to state a claim for which relief may be granted (Demurrer/12 (b)(6)) 7. Failure to join (Rule 19) Rules for the Defense Motions these claims down the road point You are allowed to make these as motions before filing an answer to the claim. You can join any of these motions together at one time If you lose on a defense motion, you must answer and have waived the right to make Subject Matter Jurisdiction can never be waived 12 (b)(6)/12(b)(7) cannot be made as a new free standing motion, but can be made at any

12(b)(6) Has the defendant been put on notice? Looks only at the four corners of the complaint, not asking about evidence, not asking the truth or falsity 12(e) looks at whether the complaint is too vague for the defendant to respond 12(e) Example: United States v. Board of Harbor Commissioners Rule 12(e) is not for times when you want details fleshed out

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 We use 12(e) when something is nonsensical or unintelligible 8(e) Contradictory Claims Example: McCormick v. Kopmann (Drunk Driving/Bar) You cannot file a claim you know to be untrue You may not be able to win on both claims, but you can file both if you have no way of knowing which one is true Relevant Rules Rule 12 (b) i. The list of defense motions Rule 12 (e) i. One bad claim does not ruin the entire complaint Rule 12 (g) i. Rules for making more than one free standing defense motion Rule 12 (h) i. Exceptions to the rules outlined in 12(g)

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NOTE E Sanctions
You cannot file a claim you know is untrue (see McCormick) Sanctions are mainly outlined in Rule 11 There are three versions 1. 1938 1983 2. 1983 1993 3. 1993 Present Rule 11 is only a signature requirement 1983 Rule 11 1993 Rule 11 People were irritated with strike suits There was an attempt in 1980 to require a pre-discovery conference Judge would get to limit discovery Rule never really implemented To the best of knowledge, this is a good piece of law/fact Sanctions included no option for judge to use options Requirement is to show that you investigated prior to complaint Must be well grounded in fact Must show reasonable inquiry Must be well reasoned argument Evolves into a rule for harassment Only applies to written motions Well grounded in fact is eliminated Must be a reasonable inquiry given the circumstances Must only be likely to have evidentiary support from discovery

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 intent to file

Adds safe harbor chance to pull pleading back (have to be notified of

Example of Rule 11 Zuk v. E. Penn. Psych Instit. of the Med. College of Penn Faulty legal research/No examination into facts is enough to say the lawyer did not fulfill responsibilities Sanctions cannot be too punitive and should be non-monetary when possible Bad faith is generally preferred before using Rule 11

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NOTE F Counterclaims/Cross claims

RULE 13 This gets into an issue of jurisdiction and counterclaims. We are concerned with whether the counterclaim belongs, or should not be allowed. Does the court have jurisdiction to hear the counterclaim? If the counterclaim is to be brought, then can it only be brought at this time? A Federal court can only hear a claim of any kind if 1) It arises out of a Federal question (Note A) 2) It has diversity of citizenship (Note A) 3) It is a state case that is directly related to another Federal claim There are two types of jurisdiction related to point three Ancillary Jurisdiction (Two Fed. Claims) (see below, case one) Supplemental Jurisdiction (State case ends up in Fed. Court) (case two) When this matters Only two cases 1) A sues B B sues A * If they are same transaction or occurrence, B must counterclaim, or never sue 2) A sues B (Federal issue) B sues A (state issue) * If same transaction or occurrence, state law can be piggybacked in Fed. Crt. SAME TRANSACTION OR OCCURRENCE is the standard that decides the second key point of counterclaims, which asks if a claim MUST be brought at this particular time this is called: Compulsory Claim The claim must be brought because it is so closely tied to the original claim that it would be a case of judicial waste and inefficiency to bring it at any other time.

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Permissive Claim The claim may be brought at the judges permission because it involves the same party and there is some overlap Compulsory = Same Transaction or Occurrence Permissive = Not Same Transaction or Occurrence There are only two definitions for Same Transaction or Occurrence 1) Logical Relationship Between Claims (Broad Allows more cases to be considered compulsory) 2) Evidenciary Overlap (Narrow Fewer claims are compulsory The penalty of not bringing a compulsory counterclaim is SO great (you can never bring it), we should try and avoid deeming too many cases as compulsory

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NOTE G Answers to a complaint

Each part of the complaint must be responded to in an answer If you are only denying part of it, then you have to specify what you are denying and what you are admitting 3 broad categories of defendants antagonistic responses 1. Denial No, I didnt do that/No, that isnt true 2. Affirmative Defense Shield (not sword); No damages Yes, but 3. Counterclaim (Rule 13) Youre going to sue me? Well I am going to sue you (Seeks affirmative relief/damages) A denial can be explained, which is different from an affirmative defense List of affirmative defenses Rule 8(e) These claims must be made in the answer, otherwise, it is waived at trial

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Accord and Satisfaction (Already agreed to diff. form of payment) Arbitration and Award Assumption of Risk Contributory Negligence Discharge in Bankruptcy (Release of debtor from liability) Duress (Compelled to act) Estoppel Failure of Consideration (Contract is no more) Fraud

Illegality Injury by Fellow Servant Laches (Unreasonable delay in claim) License Payment Release Res Judicata (Already decided) Statute of frauds Statute of Limitations Waiver

If you have a slam dunk affirmative defense, you move for 12(c) and dismiss on the pleadings Relevant Rules Rule 8 (c) i. List of affirmative defenses Rule 12 (c) i. Dismiss on the Pleadings

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NOTE H Amendments
There are two stages of amendments One Bite at the Apple Leave shall be freely given as justice so requires Lot of latitude for judges One Bite stage No permission from the court is needed 1) Once as a matter of course before responsive pleading filed 2) Answer must come within 20 days after the pleading Only as justice so requires 1) Must get permission from court or with the other sides permission 2) Issue is what does as justice so requires really mean? A judge has power to regulate his courtroom There is a lot of latitude for judges in deciding whether to allow an amendment Questions a judge considers: Is the amendment going to be seriously disadvantaged by the amendment Is one side worse off because it came up now rather than at the beginning? How much of a disadvantage is it going to be? Is there a good reason it came up now? How prejudicial would an amendment be? The later the request, the less likely accepted because it is more likely to be prejudicial Examples of excuses to protest an amendment 1) It will increase my liability exposure Not a good excuse 2) It will unduly complicate the action Not a good excuse 3) It will add significantly and duplicate my discovery Good excuse The key question appears to be does the amendment do more damage because it was let in as an amendment than it would have if it had been a part of the original pleading? (we dont want plaintiffs being tactical about what they include in their pleadings) Does a plaintiff have to explain his delay? 15(c) says that Amendments relate back for the purposes of the statute of limitations Laws can specifically say that there ins no relation back If D found out b/f statute ran out that this CTO is in play, whatever CTO is now the subject of a suit, you have been put on notice Laws not in the same conduct, transaction, or occurrence do not count There is no need to throw out valid claims

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Does 15 (c) violate the Rules Enabling Act? It does alter the right of statute of limitations

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NOTE I Fraud Charge/Conditions of the Mind

9(b) All fraud claims must be pled with fact pleading standards Malice, intent, knowledge, and conditions of mind may be pled generally You do not have to plead issues of knowledge/state of mind with fact pleading standards (you cannot know that as a fact) ROSS v. ROBBINS Do not have to plead knowledge with particularity, but you DO have to plead facts with particularity that give rise to an inference of knowledge (faulty logic, but still validwhatever) The big issue is whether this island of fact pleading should be extended 2 cases 1) Cash Energy Inc. v. Weiner Mass. District Court (1991) a. Rules on a 12(b)(6) motion and basically says it is o.k. to extend the fact pleading exception of 9(b) to other cases Guerilla Warfare against notice pleading i. Argument 1 It costs a lot to be in court/do discovery and this is an analogous area to fraud ii. Argument 2 The consequences of environmental violation are severe, just like with fraud iii. Argument 3 I, as the judge, have the right to do substantial justice, and I think this would do substantial justice iv. Argument 4 This is just like 12(e); I can ask for a more definite statement, so I can ask for more facts b. Counter arguments why this judge is an immoral bastard according to Prof. Reddish i. Fraud is only the exception, and not some broad guideline ii. The rule doesnt do substantial justice, the pleading is meant to be construed that way iii. 12(e) is never used that way iv. There is no precedent that supports this sort of alteration 2) Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit U.S. Supreme Court (1993) a. Civil rights case dealing with whether there should be a heightened pleading standard for civil rights cases b. There are three types of Civil Rights cases only suits against specific state officers get fact pleading protection c. Strong statement not to extend 9(b), but does not specifically overrule Cash Energy Expressio unius exclusio alterius The Mention of one excludes the others Some Civil Rights Cases HAVE been held to a higher standard, but this is no more fair then any other area.

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DISCOVERY
Discovery is the most controversial area of the process because of its cost (procedural blackmail problem) If discovery is too restrictive, people lose rights on legitimate claims If discovery is too loose, peoples rights infringed by having to defend against frivolous lawsuits Questions to ask (Always keep in mind what year the complaint is filed in and use the appropriate set of rules for the particular time): 1) Have all required initial disclosures been made? (NOTE A) 2) Is it possible to produce the requested information? (NOTE B) 3) Is information being requested protected by attorney-client privilege? (NOTE C) 4) Are sanctions being requested? Should they be requested? (NOTE D) 5) Are there issues related to the request of depositions? (NOTE E) 6) Are there issues related to the request for interrogatories? (NOTE F) 7) Are there issues related to the request for an exam? (NOTE G) 8) Are there issues related to document production? (NOTE H) There are different philosophies regarding Discovery 1. Judicial Passive (1938) Everyone is on their honor system Parties conduct discovery, and the court stays out If one party is not playing fair, then you file a 26(c) motion for the court to be involved 2. Judicial Interventionist (1980) Added 26(f) discovery conference Goal is to stop problems before they start and have judge outline process 3. Judicial Prophylactic(1983) Added 26(g) signing requirement Best of knowledge it is not overly burdensome, expensive, etc. (Judge decides on importance of the case) Way to seek sanctions on discovery requests 4. Rule-Based Prophylactic/Automatic disclosure (1993) Rules explicitly limit the amount of discovery and force some discovery to be given without request Problem: You have to suggest other sides argument by giving list of witnesses 5. Cost-Shifting (Reddishs idea) Make one side pay for discovery (particularly electronic) if it is really expensive (Let the market decide what is worth it) Dilemma of Discovery Can facilitate rights (Conley) or steal rights (forces settlement)

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NOTE A: Mandatory Disclosure

In an effort to make the discovery process more civil, certain basic discovery steps are mandatory Rule 26 Required Disclosures The name/location of any person likely to have discoverable information that the disclosing party may use to support claims/defenses A copy of/description of all documents/tangible items that the party controls that may be used in support of position A computation of any damages claimed with the basis for those damages explained There is a 14 day window to provide this information, or else you face sanctions under 26(f) A party must also disclose the identity of any person who will be used as an expert

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NOTE B: Discovery that cannot be produced

See Note H/Discussion of Societe Internationale The general rule is that you can produce any document you have, or that you have influence over the person who has it A court can compel the testimony of a third party under threat of criminal contempt (fine/jail) Rule 45

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NOTE C: Attorney Client Privilege/Work Product

How much of a lawyers work can be acquired in discovery? Leg Work You can only get it with cause Mental Impressions Never obtainable Hickman v. Taylor Attorney-client privilege protects all communication between an attorney and their client, but not the work done on their behalf Work done on behalf of a client is work product Rules for what work product is protected o Legwork Work Product is not protected Objective, tangible evidence o Substantial Need (cant get it anywhere else/other way) o Everything else is not obtainable 26(b)(3) formalizes the Hickman rule/covers some of the ambiguity Only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Never a lawyers mental impressions of a case Once a document has been declared work product by any judge, it must remain work product Only documents/tangible items are protected, not information Only those documents made in anticipation of litigation are protected, and not those made in the ordinary course of business Why we have these rules Free-rider problem dont want a system where one guy does all the work Retain elements of the adversarial system We dont want lawyers to be witnesses in their own trial Problem of duplicate work we tolerate it because these other principles are more valuable to us

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NOTE D: Sanctions
Rule 37 provides sanctions for conduct in discovery 2 Types of Contempt 1) Civil Contempt Coerce Action 2) Criminal Contempt Institute Punishment Court can compel discovery if one side refuses 37(a) A court can hold you in contempt if you dont show up A court can enter a default judgment if you dont show up A court can enter sanctions for evasive/deceitful discovery General problem is that this is such a pivotal part of the process that sides are trying to gain whatever edge they can out of it Cine Forty-Second Street: Shows how hard it is to get sanctions for discovery conduct Sanctions only allowed if there is: o Willfulness o Bad Faith o Fault o Gross Negligence A litigant chooses their counsel at their own peril If there are sanctions when there is neither fault, negligence, bad faith, nor willfulness, then it is a violation of due process

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NOTE E: Depositions (R. 30/31)

Depositions are in person transcribed interviews about the case We use them a. Preserve evidence b. Gather information We prefer live testimony because a jury as a fact finder gets to rule on credibility, which is effected by demeanor Depositions are meant to be more civil 30(d)(1) Objections should be civil Depositions are not meant to be argumentative gathering information You can only tell client to object if it is necessary to preserve rights/enforce a court order Avoiding the corporate maze 30(b)(6) You can tell the government/corporate agency what you are looking for and they have to tell you who would be able to answer that question Rule 31 deals with depositions where the questions are written out and provided in advance

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NOTE F: Interrogatories
There are more discovery disputes about these than any other discovery method There are no follow up questions (Lacks depth) They are cheap Good for detailed statistical stuff These can be used a trial Why we use interrogatories 1. Technical/Statistical Data 2. Basis for courtroom questions (isnt this true) 3. Can get opinions 4. No one person has information, so you need several people to answer together If it is really difficult, you can turn over business records and allow other side to find what they want (33(d))

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NOTE G: Physical/Mental Exams (R. 35)

The only type of discovery with clear requirements for their request Good cause In controversy These requirements stem from the issue of privacy Schlagenhauf v. Holder: Sibbach v. Wilson precedent o Sued in diversity suit for damages for physical injury o Wilson says that Rule 35 violates substantive right to privacy o Loses the arguement The court will not rule that Rule 35 violates the Enabling Act by impacting a right Does say that you cannot use Rule 35 as a tool for harassment In this case, there were four exams that the plaintiff requested o Ophthalmology o Internal Medicine o Neurology o Psychiatry Only the ophthalmology issue was in controversy, so the others were rejected General (unofficial) standard The less invasive the test, the less good cause/in controversy it needs to be The more invasive the test, the more good cause/in controversy it needs

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NOTE H: Document Production

The big problem with document production is that it needs to be something you have control over What does control mean? Societe Internationale v. Rogers Case establishes influence test If you dont have a document, but you have influence over the person who has it, then you have possession, custody, or control This is a determination of the judge Control = Possession of an item OR Influence over the person with possession (Vague concept)

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SUMMARY JUDGMENT
One of several ways to end a case Could a reasonable finder of fact find more likely than not that the mover would win under the governing law? Questions to ask (Always keep in mind what year the complaint is filed in and use the appropriate set of rules for the particular time): 1) Has the moving party done everything it must do to get to summary judgment (External Barriers)? (NOTE A) 2) Has the moving party produced enough evidence to persuade the judge to grant summary judgment (Internal Barriers)? (NOTE B) Summary judgment is the same as J.M.O.L (Sum. Judgment = Before trial/J.M.O.L = In trial) A judge is not finding facts, he is saying if there is enough evidence to support a particular version of the facts The importance of summary judgment increases under notice pleading because the system is back loaded we eliminate frivolous claims after discovery as opposed to the pleading stage Burden of Proof: 1. Burden of Persuasion Never shifts and only comes up when a case gets to a jury 2. Burden of Production Whether the case gets to jury and shifts based on how much evidence there is Summary judgment deals with Burden of Production Is there enough evidence for a reasonable finder of fact to find one way or the other The goal of summary judgment is to prevent an unnecessary trial

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NOTE A: External Barriers to Summary Judgment Summary judgment considers two things: (1) Whether there is enough evidence to award summary judgment (2) Whether the quality of that evidence lends itself to summary judgment External barriers focus on the amount of evidence, rather than its comparative quality 3 Perspectives on how much evidence will get a court to look at the evidences quality Traditional Whoever moves for summary judgment must shift burden of production to the other side, because if they can, a jury would find for them o Imposes burden of evidence that would not be there for defendant (produce so much evidence a jury would have to rule for them) Currie Whoever moves for summary judgment must meet their burden of production from trial (Plaintiff has to shift, defendant does not). o The goal of summary judgment is to avoid unnecessary trials, and this closely parallels what goes on in a trial Louis Whoever moves for summary judgment must either meet their usual burden of production that they would have at trial or preview the other sides case and explain why it is not enough to win with. o 2 Parts of the Test Movant must meet burden of production Movant must preview non-movants case and knock it down o Hope is to avoid making summary judgment a tool of harassment What is the standard that is currently in use? Adickes v. S.H. Kress & Co. 1970 The mover for summary judgment must foreclose the possibility that the other side was right/could win Where evidence in support of the motion does not establish the absence of a genuine issue, summary judgment will be denied even if there is no opposing evidence Traditional view NEVER FORMALLY OVER-RULED, BUT PRACTICALLY OVER-RULED Celotex Corp. v. Catrett 1986 Summary judgment should be granted when a party has not made a sufficient showing to establish the existence of an essential element to the partys case and on which the party will have a burden of showing at trial Bad for plaintiffs allows summary judgment when there is no evidence Close to Curries view (definitely past Louis) o JUST GET UP AND MOVE o NEED TO POINT OUT/SHOW OTHER SIDES CASE? IS THIS CURRIE OR LOUIS (BRENNAN/WHITE in CONCUR/DISSENT)? 2009 LexRoll.com.

NOTE B: Internal Barriers to Summary Judgment

2 Standards for the quality of evidence in summary judgment (1) Slightest Doubt The plaintiff has created the slightest doubt that their claim is valid (2) Substantial Evidence The plaintiff has substantial evidence that their claim is valid All we really know is that test two asks for more evidence than test one Caselaw: Arnstein v. Porter When there is the slightest doubt that the case happened in the way that the plaintiff said it happened Even when all the plaintiff has is the chance that the jury might not believe the defendant, we cant take that away from them Slightest doubt test is problematic because it has such a high threshold Dyer v. MacDougall If all you have is demeanor evidence, then you dont really have a case There must be some real evidence in order to survive a summary judgment motion Does not formally overrule Arnstein but it does in effect Substantial evidence is the real test, not slightest doubt: What that actually means is a little trickier You must produce some affirmative evidence that support your version of the facts you cannot rely on the mere chance that it worked out the way you said it did Other Rules: (1) You cant just rely on naked statistics (this is how things probably worked out (2) ANDERSON v. LIBERTY LOBBY Burden is same at trial clear and convincing (3) LAVENDAR v. KRUM Cases where we will never know what happened a. When the inferences point in opposite directions, we let a jury hear it (even though that often means burden of production has not been met) b. There must be some fact for the jury to ponder (and not the sheer credibility of a witness as in Arnsetin)

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Federal Rules Overview

Rule 8(a) Rule for Evaluating the Pleading Rule o Jurisdiction? o Why relief? o What relief? Doctrine Gillispe Conley Diogruardi Rabbi Grandma Fact N N N N N Notice ? Y Y N N Deep Structural o Mistakes should favor the plaintiff o If you cant provide information because you dont have it, we should let you get to discovery o Fact favors defendants, Notice favors plaintiffs o We really need to think about a system in relation to Conley and any system that would keep it out, to Redish, is wrong Rule 8(e) Multiple claims/conflicting claims Rule o Conflicting claims are acceptable Doctrine o No lies can be included o Can be taken care of in one trial o We want to avoid conflicting verdicts that punish either plaintiff or defendant excessively Deep Structural o Goal is to provide substantial justice we dont want people to have to choose between claims Case o McCormick v. Kopmann Rule 9(b) Exceptions to Notice Pleading Rule o Exception for fraud and mistake; State with particularity o No fact pleading standards for issues of intent/conditions of the mind Doctrine o Weed out those claims at the pleading stage that can do particular harm to the defendant Deep Structural o Fraud claims is so destructive So, why are fraud and mistake the only ones listed o Deters strike suit 2009 LexRoll.com.

o Does this make sense? Is this arbitrary? o Goes against notice pleading philosophy? These are exactly the cases where notice pleading is needed Rule 12(e) Clarity of the pleading Rule o Pleading is meant to place people on notice and what is being averred against you Doctrine o Not a tool for fleshing out a case o Only for unintelligible cases (very rarely used) Deep Structural o Cant respond to something you cant understand o Tone of fact pleading, but not used that way o Clark tilts hat to tradition, but it has never used that way o Counter to Notice pleading philosophy Per Redish : Neither 9(b) or 12(e) should be in the rules ---At this point 1) Pre-Response Motion, 2) Respond w/ Answer, 3) Counter Claim--1) Pre-Response Motions Rule 12(b), 12(g), 12(h) Dismissing before the responsive pleading Rule o Series of free standing motions can be used before actually responding Subject jurisdiction Personal jurisdiction Improper venue Insufficiency of Process Insufficiency of service of process Failure to state a claim Failure to join relevant party o Generally, have to make all that you want up front Subject Personal Venue Process Service Demurre Join r PreX X X X X X X Answer Response X X X Trial X X X Anytime X Doctrine

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o You should know whether there is personal jurisdiction, proper venue, process problem, or service problem before we go any farther o Subject can change as the trial continues o New parties can arise o The claim can become summary judgment Deep Structural o We want to avoid these motions becoming a stall tactic o Subject matter jurisdiction is so important to our judicial system we want it to be able to come up at any time

2) Answer Rule 8(b) Answers to initial pleading Rule o Simple, concise, direct and must deal with each claim from opposing pleading Doctrine o Must be clearly one of three categories for each claim/fact 1) Denial 2) Admission 3) Yes, but, 8(c) o Lack of knowledge is considered a denial o Failure to respond is considered an admittance 8(d) Deep Structural o Goal is to be clear and fair lawyering should not be a game of skill Rule 8(c) Affirmative defenses that must be in a responsive pleading Rule o Wont be dismissed because affirmative defense and denial labels are crossed o Translates to I admit this, but for this reason you will not be able to collect o Not an exclusive list Accord and Satisfaction Agreement to sub different form of payment Arbitration and Award Already been through another process Assumption of Risk You knew what you were getting into Contributory Negligence The plaintiff was also negligent Discharge in Bankruptcy Debt was taken care of Duress Constraint by threat Estoppel You cant do that Failure of consideration You didnt give me shit Fraud There was a misrepresentation or a lie Illegality Plaintiff is involved in illegal activity Injury by fellow servant whatever Laches Unreasonable delay in pursuing claim License You were given permission to act Payment Ive already paid you Release You already released me from liability Res Judicata Already been decided in a formal court 2009 LexRoll.com.

Statute of frauds Relief is already stated in statute Statute of limitations Time has run out for you to make this claim Waiver He gave me a get out of jail free card o Have to make any responsive pleadings you intend to make at trial in your responsive pleading Doctrine o Shield o When in doubt, it is an affirmative defense and not a counterclaim or denial Deep Structural o Substantial justice/fairness

3) Counter Claims Rule 13 Counterclaim/Cross-claim Rule o Counterclaims are brought in the same case if they are compulsory o Claims are compulsory if they are part of the same transaction or occurrence o If you dont raise a claim that is out of the same transaction or occurrence, it can never be brought up (res judicata) o Permissive claims are claims that are not from the same transaction and they are not waived if they are not brought up Doctrine o Wigglesworth is problematic, because it is inconsistent and unclear o Different standards for what same transaction or occurrence means o Logical Relationship between Events Broader (One currently in use) o Evidentiary Overlap Narrower (Better) Deep Structural o We want to avoid judicial inefficiency by having multiple trials o Which standard depends on which side you want to error on o Consequences of this are so severe do we want broad or narrow standard for such a harsh penalty? Rule 15(a) Amendments Rule o You can make the first change at any point either before the response (plaintiff) or within 20 days after the response is filed (defendant) o Outside of only those two exceptions, then you have to ask for courts permission o Requests will be rejected if they provide an excessive workload on the other party (unless you are willing to pay for it) Doctrine o You get carte blanche for the first one, but after that we want permission

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o We dont want to create new work that could have been done before (if we are adding something that wouldnt change the claim or work, it is fine, but if we are altering the work, it would be unjust, and thus, rejected) o Duplication of work is not acceptable Deep Structural o It would be unfair to have a counterclaim that places a serious burden on the non-amending party o If we can avoid having someone do work from an amendment that could easily have been done before, we want to o We dont want spiteful amendments with ill motive o We want as efficient a system as possible

Rule 15(c) Amendments Rule o Setbacks are available and are as if they were added at date of the pleading Doctrine o This practice is valid in the Fed Rules but varies state by state o Unclear which date you worry about with Statute of Liabilities (date filed or served) o Addition of parties is not available for setback Deep Structure o D is already on notice so reasons for original s/l arent really applicable: Evidence getting stale, relief from worrying about claim, etc. Rule 11 Sanctions Rule o For our purposes there are three versions (1938-1983; 1983-1993; 1993present) o 1938 Irrelevant (only a signature requirement) o 1983 The court is required to impose sanctions (no reasonable inquiry/not well grounded in fact); Does not have to be willful; Sanction lawyer or client o 1993 No well grounded in fact, but reasonable inquiry is still required; Violations tied to need for discovery; Sanctions are optional; Added safe harbor; Court can impose show-cause order on its own without a motion from counsel; Language changed from requirement for evidentiary support to likely to have evidentiary support Doctrine o Everyone needs to act in good faith, and a signature guarantees that o 1983: Guts notice pleading and makes a backdoor run at fact pleading; Conflicts with 8(a)(2) so a judge really has to pick; Creates satellite litigation over Rule 11 motions o 1993: Allow reasonable inquiry claims through, even if there is no fact (Conley v. Gibson still valid); The goal is deterrence, not compensation or punishment Deep Structural 2009 LexRoll.com.

o 1938: Necessary to know that each part is valid o 1983: Desire for Fact Pleading; Designed to benefit defendants; Reduce strike suits; Reduce litigation o 1993: Make consistent with notice pleading philosophy; Maintain some buffer against strike suits; Reduce litigation by eliminating some of the satellite litigation Rule 26(a) Automatic Discovery Rule o Forces discovery on witnesses and information Doctrine o Attempt at reducing the acrimony surrounding the discovery process Deep Structural o Counter to the adversarial system Rule 26(g) Signature Requirement for Discovery Requests/Sanctions Rule o A judge has the power to decide about whether discovery is too burdensome in relation to the benefit to be gained o You cannot make a discovery request in bad faith and if you do, they can sanction you o No safe harbor provision Doctrine o The court is there as a guide to make sure that discovery does not get unruly or out of control Deep Structural o Notice pleading wants emphasis on discovery o Same philosophical base as the Rule 11 sanctions Rule 26(f) Discovery Conference Rule o All discovery is meant to go through the courts o Not a mandatory process Doctrine o We want to solve problems before they happen Deep Structural o Added as an appeasement measure for tort reform movement and was never really given a chance Rule 26(b)(2)(3) Judges power over discovery Rule o Gets to declare limits and oversee the process of discovery o There must be a substantial need for a discovery document

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o A party must show that it is unable to get the equivalent of the materials without undue hardship Doctrine o Cost-benefit analysis of how important a discovery request actually is o Cause-need model Deep Structural o Dont want to see a million dollar discovery for a 50 thousand dollar claim

Rule 30, 31, 32, 33, 34, 35 Discovery Rule o Discovery is grouped into depositions (live interview), interrogatories (written questionnaires), mental/physical exams, documents, inspection o Can file a protective order for any information that you should not have to reveal o Courts permission for depositions: (1) more than ten, (2) person in jail, (3) person has already been deposed o Depositions are persons/parties, Interrogatories are for parties only o Good cause requirement for entry of land for inspection (privacy issue) o Work product of agent acting on behalf of a party preparing for a lawsuit cannot be obtained through discovery (Only ambiguity left is whether that material remains unobtainable for future trials) Doctrine o Influence test for discovery (Societe Internatonale) If you have influence, you are required to use it Deep Structural o Notice pleading sets up discovery as the pivotal stage and it is to be conducted in an ordered, unambiguous manner Rule 37 Failure to comply with discovery Rule o Have to confer in good faith with other side to get discovery o After you have conferred and still have not obtained discovery, then you can get a court order(37(a) motion to compel discovery) (Moving party has to show that this is not for harassment purposes if the nonmoving party objects to the motion) o Nonmoving party has to respond to the motion and explain why o Sanction if they dont comply if a party reaches this point, you cannot object that the discovery request was improper o If you fail to show up for a deposition, you can be in contempt and sanctioned Doctrine o Willfulness, bad faith, and fault are the only reasons you can sanction them for discovery (due process) o Gross negligence meets the fault standard Deep Structural

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o We want to deter misbehavior in discovery o Notice pleading places this process as the most important stage, so it needs to go smoothly

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Rule 11 Chart
1938-Charles Clark (Yale) Scope Every pleading 1983-Arthur Miller (Harvard) Every pleading, motion, and other paper After a reasonable inquiry it is well grounded in fact 1993Every pleading, written motion, and other paper Allegations have evidentiary support or, if specifically identified, are likely to have it after discovery Sanctions such as are sufficient to deter. Court has non-monetary options, but may impose a fine payable to the court or other parties when warranted.

Standard

Good ground to support it

Sanctions

Appropriate disciplinary action

Payment of sanctions in the form of fees to the opposing party. Sanctions are strictly monetary.

Discretion of Court?

May impose

Shall impose

May impose

Other changes

There was considerable confusion about the standard of conduct that should trigger sanctions and what the court had the right to impose. Toothless Tiger Only a few dozen claims were brought under this version of the rules.

Conduct need no longer be willful. Rule 11 motions can be imposed after suit has ended. Gutted Notice Pleading; Chilling Effect Rule 11 motions increased by several hundred percent.

Safe Harbor of 21 days. Rule 11 motions cant be brought after the suit has been settled or withdrawn.

Impact

Has Teeth but Doesnt Attack Notice Pleading

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IF A PERSON CONTESTS ANYTHING ABOUT THE MERRITS OF THE CASE, THEN THE COURT HAS PERSONAL JURISDICTION!!! FORUM NON-CONVENIENS STATE CAN REFUSE TO ASSERT JURISDICTION BASED ON SERIES OF FACTROS (1) Burden on defendant, (2) state interest in the case, (3) need to apply other states law, (4) Better forum available, (5) evidence in inconvenient location

Determining General vs. Specific

1. Has the company registered with the state as a business? a. Personal Availment ALWAYS trumps b. Yes You have general jurisdiction c. No Move on 2. Is D company or Corp a. No Specific ONLY b. Yes Move on 3. Does the case arise out of conduct within the state? a. Profs are trying to interpret b. Brillmeyer Test (Are the facts that are in the complaint facts that would be in the case where there is no jurisdiction issue) i. To determine if a contact is relevant, imagine and were both instate would the contact (or action inside the state) be mentioned in the complaint? c. Twitchell Test Not used Broader (grants more gen. jur. than Brillmeyer) i. Asks of harm could have been done in forum state but didnt by defendants good fortune (basically a fairness test) ii. Too hard to draw the line (Must the product sold in the forum state be identical to the one that injured ? A similar model? Is it enough that sells the same type of product that injured in the forum state?) d. The real question here is: Are you using only the actual conduct to achieve jurisdiction instead of other information? i. Yes Specific Jurisdiction ii. No General Jurisdiction Test Applies

General Jurisdiction
1. If seeking general jurisdiction, does the company have systematic, continuous, and ongoing business conduct with the state? (Helicopteros) a. Court is basically looking at pre-I/S doing business test (reversion back to power theory with no qualitative analysis of defendants activities within the state) b. Things to consider i. Duration or time been doing business ii. Amount of money iii. Total sales iv. % of business v. Used the courts vi. Doing something beyond sales

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1. Hiring 2. Recruiting 3. Advertising vii. Needs an On the other hand 1. Example : While sales may be happening, not systematic e. Yes Can get jurisdiction f. No Can not get jurisdiction

Specific Jurisdiction
1. Was jurisdiction acquired via tag jurisdiction? a. While Burnham was not a majority, none seem to question if tag is valid b. Yes We have specific jurisdiction c. No Move on 2. Is this an intentional tort? a. Yes Is the present jurisdiction the focal point of the incident i. Calder v. Jones ii. Yes Jurisdiction iii. No Move on b. No Move on 3. Does the issue deal with two international parties and no national issues? a. Asahi Metal v. Superior Court b. Yes Stream of commerce plus c. No Move on 4. Does the issue deal with exchange of money with insurance company? a. McGee v. Intl Life Ins. Co. b. Does the insurance co KNOW they are doing business with an out of state? i. OTOH ex : Company didnt know the money was from another state. c. Yes Exchange of money is most likely enough d. No Move on 5. Is there consent via forum selection clause? a. Yes There is jurisdiction b. No Move on 6. Is this an issue arising from a good placed into the stream of commerce? a. First came up in Gray v. American Radiator b. What knowledge is there of the middle mans operations? c. Would one reasonably expect it to reach the target forum? d. No Move on e. Yes Have they done anything more to target the forum (ambiguous) i. Asahi Metal v. Superior Court (Plurality) ii. Advertising iii. Solicitation of business iv. Hiring/Recruiting v. Set up operations there vi. Design of item for sale there vii. Were raw materials bought in state? viii. Yes We have Stream of Commerce Plus

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1. Look at fairness and regular stream of commerce, plurality ix. No Could the company reasonably know the product will end up in the forum? 1. Is it stated contractually (such as where to or limitations) 2. Regular use of product 3. Middle mans business 4. Would basic research inform them? 5. OTOH ex: The would have no reason to expect heat lamps in Ecuador 6. Yes Not sure if we have stream of commerce enough (was Gray overruled by Asahi Metal?) 7. No No jurisdiction based on Stream of Commerce, move on 7. If the party involved is an individual, does the D own tangible property within the forum? a. Yes Is it part of the suit? i. Yes Have jurisdiction ii. No Move on b. No Has the party taken an action that indicated it has purposefully availed itself? i. WW VW ii. Own land iii. Own bank accounts iv. Used the courts v. Protection by legal system vi. Given up rights based on statutory provision vii. OTOH : ex : Is fire/police/etc protection enough, Brennan? viii. Yes Jurisdiction ix. No No Jurisdiction 8. If the party is a business, have they purposefully availed themselves (remember to discuss balance of inconvenience)? a. WW VW b. Set up operations c. Used the courts d. Protection by legal system e. Doing business within the state f. OTOH : ex : Is fire/police/etc protection enough, Brennan? i. Probably not significant enough g. Yes Jurisdiction h. No Move on i. SUB ISSUE (Internet Sites i. Supreme Court has not dealt with the issue yet ii. Touchy area since a single individual can do a lot of harm in a lot of places just by putting up a website iii. Traditional P/A = 1) subject to juris. in all kinds of inconvenient places or 2) no juris. in places where real harm occurred iv. Solution Possibility 1: Calder v. Jones applies in most cases

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v. Solution Possibility 2: Cybercell; Internet Plus Must offer some non-web solicitation combined with web offer vi. Solution Possiblity 3: Balance of inconvenience (Redish) vii. Solution Possbility 4: Zippo sliding scale (Dist. Crt. Case) 1. Websites that conduct business P/A of all places 2. Interactive websites (collect information) = Grey area (no guidance) 3. Passive websites = no juris. in places where they are viewed 9. Has there been contact that is of a certain nature, quality, and circumstance as to give rise? (Minimum Contacts Test) 2 Parts: Purposeful Availment/Balance of Inconveniences a. Intl Shoe Co. v. Washington b. Things to consider i. Duration or time been doing business ii. Amount of money iii. Total sales iv. % of business v. Used the courts vi. Doing something beyond sales 1. Hiring 2. Recruiting 3. Advertising vii. Needs an On the other hand 1. Example : While sales may be happening, not systematic c. Yes Jurisdiction d. No Move on 10. Has there been systematic and ongoing contact with the forum state? a. Burger King v. Rudzewicz b. Yes Jurisdiction c. No Move on 11. Fairness is defined by the following a. Interest of forum state in providing forum for P b. Interest of forum state in regulating activity involved c. Burden on D to defend in forum d. Relative burden on P to prosecute elsewhere e. Is Ds activity in forum systematic and continuous f. Extent to which claim is related to Ds local activities g. Avoidance of multiplicity of suits and conflicting adjudications How much weight to give fairness BK Brennan disregards balance of incons i. Its pretty much just P/A balance of incons will rarely, if ever, deny juris when P/A exists ii. Rationale 1. can just request change of venue of forum non conveniens

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iii. Stevens dissent wants to keep balance of incons in the picture esp in case like BK, it can be very burdensome for individ to travel to defend against corp Asahi OConnor iv. 2nd unclear part of Asahi is how imp this balance of incons is v. could say that this is an example of a rare case where BKs balance of incons came into play 1. if so, does it mean that only an internatl can have juris denied b/c of balance of incons test? vi. could be that this case overturns BKs disregard for balance of incons and step 2 is back in the picture McGee vii. defined what I/S meant by trad notions of fair play and substantial justice balance of the inconveniences viii. everything else has been a step away from this Redishs Theory ix. Just look at balance of incons, P/A doesnt matter at all x. Weigh burdens against interest of the state

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Subject Matter Jurisdictin

DIVERSITY cause of action is state current debate about whether to keep diversity juris o were more homogenized and less regionally biased now o usurpation of state power fed cts enforcing state laws but states dont care takes some load off their dockets 1. Complete Diversity every must be from a diff state than every if theres any overlap, case doesnt get into fed ct not clear whether complete diversity requirement comes from the const or congressional act o matters b/c if its congressional act, congress can reverse it diversity measured at the time of suit aliens o an alien living in state has domicile in that state for the purposes of diversity juris o someone living in another country automatically has diversity juris can always sue in fed ct 1332 corporations o have 2 domiciles state of incorporation and state where principle place of business is used to be just state of incorporation expansion cut back on number of cases that were diverse o test for principle place of business: place of operations (try this one first) nerve center (means the place where decisions are actually made only applies when the other test is ambiguous) individuals (Domiciles) o domicile can be hard to determine (Intent for permanent residency Students) o person can have lots of residences, but only one domicile 2. Amount in Controversy must be $75,000 involved, aside from fees not required for fed question juris legal certainty test presumption in favor of finding the amt in controversy to be big enough must prove that its too small Removal to Federal Court normally, if there is concurrent juris and a case can properly be heard in state or fed ct, both parties have the irrebutable option of going to fed ct

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o above is not necessarily so for diversity juris IL sues NY in NY has option of bringing suit in fed or state ct IL sues NY in NY state court cant remove to federal court since there wouldnt any prejudice against him in NY state ct IL sues NY in IL state court NY can remove to IL fed ct since there would be prejudice against him in IL state ct IL can sue NY in IL fed ct o seems to run contrary to the reasoning behind the rule that NY cant remove to NY fed ct if he was sued in NY state ct by IL o i.e. theres no reason for allowing IL to sue NY in IL fed ct IL wont get prejudice in IL state ct

FEDERAL QUESTION JURISDICTION applies to cases arising under fed law o arising under appears in Art 3, Sec 2 of Const, and in 28 USC 1331 o 1331 never been interpreted to go to Constitutional limits o all the time and action has dealt with how to interpret 1331 Evolution Interpreting arising under as used in 1331 1916: American Well o arising under only applies when fed law creates the cause of action o If whole case turns on fed law, if fed law didnt start suit, no arising under o very narrow view (Holmess legal positivism) 1921: Smith o arising under is satisfied when case turns on a question of fed law o more in line with the reasons that FQ juris exists o allows more cases into fed ct than Aman Well did the Aman Well test still works, but fed juris not limited to cases Amer. Well test would let in 1986: Merril Dow o asks whether the fed law involved is important to the case and it sets a high standard for whats important o doesnt overturn Smith says in Smith, the fed law question was important o problems: leaves courts to decide whether a fed law is important in a case that arises under state law its ambiguous lets state courts decide how to interpret fed laws no assurance that the state court will interp the fed law correctly Well-Pleaded Complaint Rule judge-made law not from const or congress o i.e. could be overturned by congress there is no arising under juris if fed issue doesnt appear in s complaint o i.e. must mention fed law in complaint if fed law only appears in s answer, theres no juris

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further, if only mentions fed law as an anticipated defense or in some other non-essential way, complaint is not well-pleaded and there is no fed juris limits the cases in fed ct

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Erie Doctrine/Choice of Laws

1) Is this a diversity case? Yes Move on No Ignore Erie 2) What is the Erie question? Once determined, move on. 3) Is the federal rule/procedure rationally capable of being seen as procedural (on the checklist)? Yes Move on No Try the other answer 4) Is there a federal statute on point? Yes Ignore Erie, use federal statute No Move on 5) Is there a Federal Rule of Civil Procedure on point? (RDA test (fr) v. Byrd (FR) test will be ambiguous it is not always clear whether a Federal Rule applies there may be one in the neighborhood but whether it applies may be ambiguous courts may try to read narrowly, so it doesnt apply No The policy is judge-made (fr) Move on. Yes Could they both be followed simultaneously? Yes Follow both (Rules construed narrowly to allow for this Gasperini/Symtek) No REA Test Burlington Northern Test (1988) 1. Incidental impact (Rules which incidentally affect litigants substantive rights do not violate this provision if reasonably necessary to maintain the integrity of that system) Is FR trying to regulate procedure? If yes, incidental substantive impact doesnt matter 2. Presumption of validity of the FRCP Invalidated next time Cubs win world series 3. Will be construed narrowly to not supplant state law if possible (Gasperini and Symtec) Sibbach (1941) (Not good law) Mutual Exclusivity (either procedural or substantive, cant be both). If at all procedural, then not substantive. Prof. Ely: Ely Checklist plus Enclave (Never adopted.) Checklist analysis - Rule must deal with practice and procedure; Enclave Cant abridge, enlarge or modify substantive rights Test 1) Is the rule procedural? Does rule deal w/ fairness, efficiency and the truth finding process? If no then State rule applies. If yes, Test 2)

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Test 2) Does Fed Rule in any way enlarge, abridge or modify any substantive right? If yes, Ely (taken literally) interprets the second part to say that if FR in any way m, e or a state substantive right then use State rule. This test would make FRCP Swiss cheese. Prof. Burbank -- If the application of a rule will change the outcome of a case directly, that is substantive and thus is in violation of the Enabling Act because it impacts a substantive right 6) Does the federal policy conflict with state rule or policy? Yes Move on No Follow federal policy 7) Is the area one of the few areas suitable for federal common law? (Erie said no general federal common law) Yes If one of the four enclaves, use federal common law Federal Interests Clearfield Trust, 1940s Boyle v. United Technologies (1988, Scalia) US govt wasnt even party but court asserted fed interest Dumbest thing he ever did Foreign relations Admiralty State interests disputes No RDA Test (On EXAM, RDA test v. FR test will be ambiguous, use both) Hanna v. Plummer Modified Outcome-Determination Test Does it violate the twin aims of Erie? Is it likely to create forum shopping? Is it likely to result in inequitable administration of the law? Idea came from Ely HLR article Rule ignored in Walker see below; (Said Hanna had not overruled Ragan) Walker ignored in Chambers v. Nasco (Sanctions case), used Hanna As of 1991, Hanna remains rule GOOD CONFUSION Harlans Concurrence from Hanna: Harlan, like Redish, thinks that forum shopping (key component of RDA test) is trivial. Harlans test: would the rule you adopt affect the planning of day-to-day, primary activity/conduct of the population? If yes, you adopt the state rule important to preserve order and predictability, so that people know what to expect and what will be expected of them

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Gasperini Revives Byrd Balancing Test [an enclave for judge/jury relationships] Shows that Supreme Court will bend over backwards to not to classify a situation as under the Federal Rules Byrd Strict Outcome Determination Test (No longer used 2 step First question if state procedural rule is bound up in state substantive rights. If no, balance outcome determinative with federal interests. 1 step Single inquiry of how bound up it is plus outcome effect v. federal interest. Federal interest can counterbalance state interest. step Outcome determination out of the picture. State interest v. federal interest. Walker v. Armco Steel Deals With Rule Three (Enclave?) Once court begins RDA analysis (after deciding that Rule is not applicable), decides that to apply federal rule would result in inequitable administration of the laws, uses state rule instead Guaranty Trust v. York Strict Outcome Determination Test No longer good law Bernhardt Gloss If even a CHANCE the outcome could be different, state law wins

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